PEOPLE v. PEREZAppellant’s Opening BriefCal.September 13, 2012e ocUPREME COURT COPY IN THE SUPREME COURTOF THE STATE OF CALIFORNIA ) PEOPLE OF THE STATE OF CALIFORNIA, ) ) S$104144 Plaintiff and Respondent, ) Automatic Appeal ) (Capital case) Vv. ) ) ) Contra Costa Co. ) Superior Court JOSEPH ANDREW PEREZ,JR. ) No. 990453-3 ) Defendant and Appellant. ) ) FILED. APPELLANT’S OPENING BRIEF SEP 13 2012 Frank A. McGuire Clerk Appeal from the Judgmentof the Superior Court of the State of California for the County of Contra Costa Deputy HONORABLEPETER L. SPINETTA, JUDGE A. RICHARD ELLIS Attorney at Law CA State Bar No. 64051 75 Magee Ave. Mill Valley, California 94941 Telephone: (415) 389-6771 Fax: (415) 389-0251 Attorney for Appellant DEATH PENALTY IN THE SUPREME COURTOF THE STATE OF CALIFORNIA PEOPLE OF THE STATE OF CALIFORNIA, S$104144 Plaintiff and Respondent, Automatic Appeal (Capital case) Contra Costa Co. Superior Court JOSEPH ANDREW PEREZ,JR. No. 990453-3 Defendant and Appellant. N e e e e e e e e e e e e e e e e e APPELLANT’S OPENING BRIEF Appeal from the Judgment of the Superior Court of the State of California for the County of Contra Costa HONORABLEPETERL. SPINETTA, JUDGE A. RICHARD ELLIS Attorney at Law CA State Bar No. 64051 75 Magee Ave. Mill Valley, California 94941 Telephone: (415) 389-6771 Fax: (415) 389-0251 Attorney for Appellant TABLE OF CONTENTS TABLE OF CONTENTS... 00.2... 0 ceeteen ene i TABLE OF AUTHORITIES ...... 0... 000 cece eee es xi STATEMENT OF APPEALABILITY «2.2.0.0... 000 c ee ceeeeeee 2 STATEMENT OF THE CASE ....... 0.0000 tee cent tne 2 STATEMENT OF FACTS .... 0.2...cecetees 7 1) Guilt-innocence phaseofthe trial: the State’s case ........ 7 a) The crime 0.2... . eeeeeeee 7 b) Aftermath of the crime, recovery of the victim’s vehicle, and the investigation .............+.505- 9 C) The identification and mis-identification of appellant12 d) Theforensic investigation did not connect appellant to the crime 0.0... 0.eeeeee eee 15 e) The police connect Maury O’Brien and Lee Snyderto the criME .. 6.eeeee ee 16 f) The testimony of co-defendant Maury O’Brien .... 21 g) Other testimony ....... 0... cee ee eee eee eee 29 2) The defense caseat the guilt/innocence phase .......... 32 3) The punishment phaseofthetrial: the State’s case ....... 34 a) The 1992 robbery ...... 0.0.0.0 e eee eee eee 34 b) The alleged rape incident in 1992 or 1993 ........ 35 C) The 1994street fight involving appellant’s girlfriend 36 d) The 1994 prison incidents .......... 00.0 eee eee 38 e) The 1999 Contra Costa Jail incident............. 40 f) Victim impact testimony ......-.. 0000s eee eee 4] 4) The defense case at the punishment phase ............. 4] a) Rebuttal evidence regarding the 1999 Contra Costa Jail incident 2.6... 0... eee eee eee ees 4] b) Mitigating evidence regarding appellant’s family and background ......... 5.0 cee eee eee ees 45 5) The prosecution’s rebuttal case at the penalty phase ...... 76 ARGUMENT.........0 0 ceceeteeens 77 I. Il. II. IV. THE TRIAL COURT’S SYSTEM OF GROUP VOIR DIRE VIOLATED APPELLANT’S RIGHT TO DUE PROCESS AND A FAIR TRIAL0...tenes77 A. Introduction 1.0.0.0... 0c cece ee tent ennete 77 B. Facts in Supporto...0.eeeee 78 C Argument 0.0.0... cecetenes 83 i The voir dire procedure violated appellant’s Constitutional rights to due process,trial by an impartial jury, effective assistance of counsel, and a reliable sentencing determination ....... 0... ccc eee eee ees 83 i. Thetrial court abused its discretion when it denied counsels’ request for individual sequestered voir dire ............ 87 LEAD DEFENSE COUNSEL HAD A CONFLICT OF INTEREST, AS THE TRIAL JUDGE HAD FOUND HIM INEFFECTIVE INA CASE PENDING IN THE COURT OF APPEALS ...........- 93 A. Facts in Support ... 0.0... ceeene 93 B. Argument 2.0.0...eeett 100 TRIAL ERROR FOR FAILURE OF THE TRIAL JUDGE TO DISQUALIFY HIMSELF AS A RESULT OF COMMENTS THAT INDICATED HE COULD NOT BE IMPARTIAL .........-. 106 A. Facts in Support .. 0...eeeee 107 B. Argument 2.0... cceeete ene 119 THE TRIAL COURT ERRED IN “REHABILITATING” DEATH- PRONE JURORS BY ASKING LEADING AND SUGGESTIVE QUESTIONS ON VOIR DIRE, WHICH STACKED THE JURY IN FAVOR OF A DEATH SENTENCE, THEREBY DEPRIVING APPELLANT OF A FAIR AND IMPARTIAL JURY 2.0... ceettne 122 A. Introduction 2.0.0.0... cccteenes 122 B. Facts in Support ..... 0... cece ee eee 125 C. Argument 2.0... cecetenes 131 -ii- VI. Vil. D. Conclusions ........ 000. ec ec ee eee eens 134 PROSECUTORIAL MISCONDUCT FOR PURPOSELY DELAYING FILING THE NOTICE OF AGGRAVATION.... 135 A. Facts in Support 2.0...eeees 135 B. Argument .. 0.6...cette tees 14 OTHER INSTANCES OF PROSECUTORIAL MISCONDUCT TAINTED APPELLANT’S TRIAL AND VERDICT ......... 142 A. Facts in Support .. 0... 0. ceeeeee 142 i. Offering improper victim impact evidenceat the guilt/innocence phase 2... ccceeetenes 142 ii. The prosecutor improperly vouched for the credibility of a WIINESS 2.0.6e eee eee nee 143 iii. | Improper questioning and attempting to bias the jury .... 143 iv. Argumentative questions designed to bias the jury ...... 144 Vv. Improperreferences to appeals ........-. 00 eee eee 145 vi. Improper references to lack of remorse ...........+.-+- 145 vii. The cumulative effect of these instances of prosecutorial misconduct deprived appellant ofa fair trial. .......... 146 B. Argument .. 00... eccet146 APPELLANT’S RIGHTS WERE VIOLATED WHEN THE TRIAL COURT REMOVED A SWORN ANDSITTING JUROR DURING THE GUILT PHASE 2.0.0.0... . cecetenes 149 A. Facts in Support 2.2.0...eeees 150 B. Argument ... 0.6... ccceeete 159 i. Thetrial court employed the wrong standard to dismiss a seated juror during guilt phase proceedings, depriving appellant of due process andhisrightto trial by jury .... 159 ii. Removal of Juror No. 7 during the guilt phase based on speculation aboutthe effect his views on the death penalty could have on his assessment ofguilt deprived appellant of the presumption of innocence .......--6- eee eee ee ees 163 iii. Acase of first impression? .........0. 00 eee eee ee 163 iv. This is plain error under People v. Allen/Johnson, People v. -iii- VIL. IX. XI. Wilson and People v. Pearson ........6 000s errr reese 166 a) People v. Allen/Johnson .. 4.00 ce eee ees 166 b) People v, Wilson...cctees 171 c) People v. Pearson... 00ceeees 172 C. The removal of Juror No. 7 was structural error which was per se prejudicial...eeeee eee 173 D. Removal of Juror No. 7 was also improper under Witt and WitherSPOOn .. ccc cece cette tenes 175 TRIAL ERROR IN ADMITTING TESTIMONY RELATING TO AN ALLEGED RAPE BY APPELLANT ........-.-.-.-55: 180 A. Facts in Support 2... 6... ceeeees 181 1. Trial error in the initial ruling that the prosecution had no obligation to turn over the Torres rape information ..... 18] ii. Trial error in admitting the rape evidence ............. 183 B. Argument 2.0.0...c etnies 184 i, The Materiality Standard ......... 0... e eee ee eee 185 APPELLANT’S TRIAL WAS CONDUCTEDIN AN INHERENTLY PREJUDICIAL ATMOSPHERE ASIT COMMENCED ON SEPTEMBER12, 2001 ......-..5.00-45 187 A. Facts in Support ..... 0... eee ee ee eee 187 B. Argument 2...iceettene 188 THE TRIAL COURT ERRED IN VOUCHING FOR A PROSPECTIVE JUROR’S INCONSISTENT ANSWERS.... 191 A. Facts in Support .. 0...eeeee 191 B. Argument 2.0... ccccere te tees 193 THE JURY SELECTION PROCEEDINGS WERE BIASEDIN FAVOR OF PRO-DEATH JURORS ........ 56000 ee eee ees 196 A. Facts in Support... 0... eeeeee 196 B. Argument: Constitutional standards mandated the dismissal of these actual and prospective jurors ..........-.+55- 201 C. The trial court’s duty to ensure an impartial panel ...... 206 -iv- XII. XII. XIV. XV. THE TRIAL COURT ERRED IN DENYING DEFENSE OBJECTIONS TO DUPLICATIVE AND GORY CRIME SCENE PHOTOS . 00...cceee ttn nes 211 A. Facts in Support . 0.0...ceee nee 211 B. Argument 2.2.0.0...eeeees214 THE TRIAL COURT ERRED IN VOUCHING FOR THE CREDIBILITY OF A CRUCIAL PROSECUTION WITNESS. 216 A. Facts in Support 0.0...eeeee 216 i. The immunity agreement ........ 00... eee re ees 216 ii. Prejudice to appellant 2.0.1.2... eee eee 218 B. Argument . 0.0... eeteete 220 THE TRIAL COURT ERRED IN DENYING A MOTION FOR A MISTRIAL BASED ON THE JURY OVERHEARING IMPROPER AND PREJUDICIAL REMARKS ON TAPE .........+-.-55 221 A. Facts in Support . 1.0...ecees221 B. Argument 0.0... ceeeeenets 226 THE TRIAL COURT ERRED IN ADMITTING ACCOMPLICE TESTIMONY... 0... ceceenn e eee 227 A. Facts in Support 2.0... . ceeeee nes 227 B. Argument 2.0.0... 0.0 eeee eee eee 231 i. Accomplice testimony is inherently suspect and constitutional prerequisites to its use were not followed in this case... . 231 il. The testimony of the accomplice informants was too unreliable to be admitted and violated due process ...... 234 iii. Appellant was denied due process because the prosecution's case dependedsubstantially on the testimony of witnesses who were undera strong compulsion totestify in conformity with earlier unreliable statements ...........-0.--05- 238 XVI. THERE WAS INSUFFICIENT NON-ACCOMPLICE CORROBORATING EVIDENCE.......-0 50. b ee eee eee 242 A. Facts in Support ..... 0.00. eeeeee242 B. Argument ... 0.0... cece tenet eens 242 XVII. TRIAL COURT ERROR IN ALLOWING INADMISSABLE HEARSAY TESTIMONY FROM THE PATHOLOGIST WHO WAS NOT PRESENT AT THE AUTOPSY ......--...-555- 243 A. Facts in Support .... 2...eee244 B. Argument 2.0... 000s ceeeee248 i. The Confrontation Clause ...... 0.0... e eee eee eee 248 ll. The hearsay argument ........ 0... e ee eee eee eee 257 XVIII. MISCELLANEOUS TRIAL COURT ERRORS DEPRIVED XIX. APPELLANT OF A FAIR TRIAL «0...ene259 A. Facts in Support 2.0... cee eee eens 259 i. The family of the victim was allowedin the courtroom during the guilt phase 2.1.1... eeeeeees 259 ii. Trial error for refusing to treat low-incomejurors as cognizable class entitled to extra compensation ........ 260 iii. Court coaching of witnesses ......-. 6. ee ee eee ee eee 260 iv. Improper “snitch” instruction ...... 5.6.6 e ee eee eee 261 Vv. Improper aggravating evidence dueto trial court error in denying motion in limine to exclude CDCincidents ..... 262 vi. Trial error for failure of the court to admonish the jury to disregard emotional outburst ........... 000s eee eee 263 vii. Instructional error at the penalty phase by giving the instruction on lewd acts with a child under 14 ......... 263 viii. Instructional error made wheninterrupting defense counsel’s final argument ©... 6.6etees 265 B. Argument ©... 0.eeete tne 267 THE TRIAL COURT ERRED IN ALLOWING PREJUDICIAL VICTIM IMPACT EVIDENCE AT THE PUNISHMENT PHASE 2...eens269 -Vi- XX, XXI. XXII. A. Facts in Support ... 0.0.0... eee tenes 270 B. Argument 2... 0...ceeens 272 THE TRIAL COURT ERRED IN GIVING THE “SO SUBSTANTIAL” INSTRUCTION SUA SPONTE ........... 275 THE TRIAL COURT ERRED IN DENYING A MOTION FOR A NEW TRIAL BASED ON THE COURT’S GIVING THE “SO SUBSTANTIAL” INSTRUCTION 2... 0.00.00 ce cee ee eee 275 A. Facts in Support... 0...eee275 B. ATQUMEN 2...eeteen 278 i. The instruction caused the jury’s penalty choice to turn on an impermissibly vague and ambiguousstandard ......... 280 ii. Theinstruction failed to inform the jurors that the central determination is whether the death penalty is appropriate, not simply authorized... 0.0... eeeeees 282 iii. The instruction failed to inform the jurors that they were required to imposelife without the possibility of parole if they found that mitigation outweighed aggravation ......... 284 iv. Conclusion... 0...eeeees 286 CALIFORNIA’S SENTENCING SCHEMEIS UNCONSTITUTIONAL UNDER THEFIFTH, SIXTH, EIGHTH AND FOURTEENTH AMENDMENTS........-- 00002 e es 287 A. Lack of written findings «2.0.00... 6c cee eee eee ees 290 B. Failure to place the burden of proof on the prosecution to establish that death is appropriate beyond a reasonable doubt and that related matters have been proven beyond a reasonable doubt ....... 0... cece eens 291 i. The jury was repeatedly advised andinstructed that there was no burden of proof .........keeee 291 il. Apprendi holdsthatallocating to the prosecution the burden of proof beyond a reasonable doubtis required by the Fifth, Sixth and Fourteenth Amendments .................. 294 iii. Placing the burden of proof beyond a reasonable doubt upon the prosecution is also required by the Fifth, Sixth, Eighth and Fourteenth Amendments .......... 0.00. cece eee eee 296 C, Lack of requirementthat the jury unanimously find that -Vil- a m il. specific aggravating circumstances exist..........-.-. 300 Lack ofinter-case proportionality review ...........-- 301 Failure to adequately narrow the class of offenderseligible for the death penalty .... 0. cceee ees 301 Unboundedand excessive prosecutorial discretion ...... 302 Instructing the jury in the terms ofa unitary list of aggravating and mitigating factors 2.0... 6c. eee ee eee 305 Instructing the jury with Section 190.3's unitary list, per CALJIC No. 8.84.1, violated the Fifth, Sixth, Eighth and Fourteenth Amendments ...... 0... 0000 ee eee eee eee 305 Section 190.3 and theinstructions allowed the jurors to engage in an undefined, open-ended consideration of non- statutory aggravating factors ......... ee eee e eee eee 307 California's failure to provide any of the penalty phase safeguards commonly employed in other capital case jurisdictionsviolates the Fifth, Sixth, Eighth and Fourteenth Amendments ....... 0.00: e eee eee eee eens 310 The California Supreme Court’s failure to conduct constitutionally adequate review of capital sentences .... 312 XXIII. SECTION 190.3 AND THE RELATED PENALTY PHASE INSTRUCTIONS, AS USED ATAPPELLANT’S TRIAL, WERE UNCONSTITUTIONAL 2.0.0... eeeees 314 A. Introduction: United States Supreme Court cases preclude vaguenessin capital sentencing statutes and aggravating factOPS oo. ceceeeeeens 314 Factor (a) of Penal Code Section 190.3, which directed the jury to separately weigh the “circumstances of the crime”as a factor in aggravation, violated the Eighth and Fourteenth Amendments ....... 0.00: cece cette tenn 318 Section 190.3's Factor (b) is unconstitutionally vague under the Eighth and Fourteenth Amendments andresulted in arbitrary and capricious sentencing .......-..-+.+-4-- 320 Thetrial court failed to delete inapplicable mitigating factors, in violation of the Eighth and Fourteenth Amendments . . 322 Thetrial court did not define mentalillness as a mitigating factor or delete factor (d)'s "extreme" modifier, resulting in unconstitutional vaguenessin violation of the Fifth, Sixth, Eighth and Fourteenth Amendments ..........--.+--- 326 -Vili- F. Thetrial court's failure to read necessary instructions related to the burden of proof and reasonable doubt violated the Fifth, Sixth, Eighth and Fourteenth Amendments ............ 330 G. These errors individually and cumulatively prejudiced appellant and mandate reversal ..........--0 00-0 eee 332 XXIV, APPELLANT'S DEATH SENTENCE IS DISPROPORTIONATE TO HIS ACCOMPLICES AND AS TO BOTH HIS INDIVIDUAL CULPABILITY UNDER AN INTRA-CASE REVIEW, AND WHEN COMPARED TO OTHERS WHO HAVE COMMITTED SIMILAR OFFENSES 2.0.0.0... 0c eee eee 333 A. Facts in Support ..... 0... c e tees 333 XXV. THE DEATH PENALTY VIOLATES EQUAL PROTECTION PRINCIPLES UNDER BOTH THE UNITED STATES CONSTITUTION AND INTERNATIONAL LAW .......... 337 A. International Law ... 0.0...eeeens 341 B. The Eighth Amendment .......... 0.0.0 cee eee ee eee 343 XXVI. APPELLANT’S DEATH SENTENCEIS ARBITRARY UNDER INTERNATIONAL LAW 1.0.0...ecees 346 XXVIII. APPELLANT’S RIGHT TO BE TRIED BEFORE AN IMPARTIAL TRIBUNAL WAS VIOLATED BY DEATH QUALIFICATION PROCEDURES .......... 0204 e eee eee 350 XXVIII. APPELLANT HASA RIGHT TO LITIGATE VIOLATIONS OF HIS RIGHTS BEFORE INTERNATIONAL TRIBUNALS... 353 XXIX. THE VIOLATIONS OF STATE AND FEDERAL LAW ARTICULATED ABOVE LIKEWISE CONSTITUTE VIOLATIONS OF INTERNATIONAL LAW, AND REQUIRE THAT APPELLANT'S CONVICTIONS AND PENALTY BE SET ASIDE 2...eeteen teens 356 A. Background ....... 0... cece ete teens 356 B. Treaty Development .........0... 360 C. Customary International Law ......... 0.0.00 e eee 367 -ix- D. Due Process Violations 0.0... 00. c eee ee eee 370 E. Conclusion ....... 000 ccc eee tenets 376 XXX. THE UNCONSTITUTIONAL USE OF LETHAL INJECTION RENDERS APPELLANT’S DEATH SENTENCEILLEGAL.. 377 XXXI. THE CUMULATIVE EFFECT OF THE ERRORS RENDERS THE VERDICT AND SENTENCE UNCONSTITUTIONAL .. 391 CONCLUSION ... 0... ceceetenena 397 CERTIFICATE OF COUNSEL (WORD COUNT) .....------.5555 398 DECLARATION OF SERVICE BY MAIL ..... 0... ee ee eee ees 399 TABLE OF AUTHORITIES FEDERAL CASES Adams v. Texas (1980) 448 U.S. 38 20.2... 132, 133, 159, 203, 255, 331 Adamson v. Ricketts (9th Cir. 1988) 865 F.2d 1011 ...........--.-. 147 Addington v. Texas (1979) 441 U.S. 418 0.0... cece eee 300, 331 Aldridge v. United States (1931) 283 U.S. 308 .... 78, 125, 127, 131, 360 Apprendi v. New Jersey (2000) 530 U.S. 466 ............ 294, 295, 296 Arizona v. Fulminante (1991) 499 U.S. 279 ..... 194, 221, 222, 224, 311 Asakura v. Seattle (1924) 265 U.S. 332 2... 0.eee 372 Atkins v. Virginia (2002) 536 U.S. 304 2...eee 341, 345 Bacigalupo v. California (1992) 506 U.S. 802 «0... eee eee 317 Barber v. Page (1969) 390 U.S. 719 20... ccc eee tee 255, 256 Beazley v. Johnson (Sth Cir. 2001) 242 F.3d 248 2.0... .. eee ee eee 342 Beck v. Alabama (1980) 447 U.S. 625 .......... 237, 297, 332, 349, 352, 394, 396 Beets v. Collins (Sth Cir. 1999) 65 F.3d 1258 0.2.0... eee ees 102 Berger v. United States (1935) 295 U.S. 78 0.0... eee ne 146, 184 Blackmon vy. Scott (Sth Cir. 1994) 22 F.3d 560 ........... 185, 310, 327 Blakely v. Washington (2004) 542 U.S. 296 0... cece eee 319 Blystone v. Pennsylvania (1990) 494 US. 299 2... eee ee eee 283 -Xi- Bonin v. Calderon (9th Cir. 1996) 77 F.3d 1155 «1... 0... eee eee 379 Booth v. Maryland (1987) 482 U.S. 496 2... eee eee ens 323 Boyde v. California (1990) 494 U.S. 370 1... eeee 278, 284 Brady v. Maryland (1963) 373 U.S. 83 «1.6... eee eee 182, 184, 185, 186 Brecht v. Abrahamson (1993) 507 U.S. 619 vo. cee ee eee 313, 336 Bridges v. State ofCalifornia (1941) 314 U.S. 252 «1... eee eee 189 Brooks v. Kemp (11th Cir. 1985) 762 F.2d 1383 .......... 147, 148, 324 Bullcoming v. New Mexico (2011) 131 S. Ct. 2705..243, 244, 245, 246, 247, 250, 251, 252, 253 Burton v. Johnson (10th Cir. 1991) 948 F.2d 1150 2.0.0... eee eee 204 Bush v. Gore (2000) 531 U.S.98. 2... cece ees 304, 337, 339 Caldwell v. Mississippi (1985) 472 U.S. 320 2.6... eee eee 394 California v. Brown (1987) 479 U.S. 538 1. ee ee 323, 326, 329 California v. Ramos (1983) 463 U.S. 992 ........ 86, 317, 318, 323, 326, 329 Campbell v. Wood (9th Cir. 1994) 18 F.3d 662 ......-- ee eee eee 390 Ceja v. Stewart (9th Cir. 1996) 97 F.3d 1246 «0.1... - cee eee eee 392 Chambers v. Mississippi (1973) 410 U.S, 284 2.0... eee eee ee 394 Chapman v. California (1967) 399 U.S. 18 «6... eee cece passim Coleman y. Brown (10th Cir. 1986) 802 F.2d 1227..148, 326, 329, 335, 349, 352, 396 -Xli- Cooperv. Fitzharris (9th Cir. 1978) 586 F.2d 1325 «1.0... eee eee 391 Crawford v. United States (1908) 212 U.S. 183) 6... eee eee 232 Crawford v. Washington (2004) 541 U.S. 36..... 243, 249, 250, 251, 252 Crist v. Bretz (1978) 437 U.S. 28 2.eenes 159 Crow v. Gullet (8th Cir. 1983) 706 F.2d 774 2.0... eee ee eee 366 Cunningham vy. California (2007) 549 U.S. 270 2... eee ee eee 319 Cuyler v. Sullivan (1980) 446 U.S. 335 ......... 101, 282, 303, 315, 334 Darden v. Wainwright (1986) 477 U.S. 168 ..... 133, 148, 149, 325, 338 Davis v. Washington (2006) 547 U.S. 813 2...eeeee 250 Donnelly v. DeChristoforo (1974) 416 U.S. 637. «1.0... eee ee 148, 149 Duncanv. Louisiana (1968) 391 U.S. 145 ........ 83, 124, 131, 132, 203 Eddings v. Oklahoma (1982) 455 U.S. 104 1... 02... 000. 274, 338, 390 Estelle v. Gamble (1976) 429 U.S.97 2. occeens 390 Estelle v. Williams, (1976) 425 U.S. 501... eee eee 190, 193 Estes v. Texas (1965) 381 U.S.532 0...eee 188 Evitts v. Lucey (1985) 469 U.S. 387 0...eeees 286 Ewingv. Williams (9th Cir. 1979) 596 F.2d 391.0... eee eee 391 Eyde v. Robertson (1884) 112 U.S. 580 2... 6. eeeeee 357 Ferrier v. Duckworth (7th Cir. 1990) 902 F.2d 545...........-.005- 215 Fierro v. Gomez (N.D.Cal. 1994) 865 F.Supp. 1387 ..........04-- 378 -Xili- Fierro v. Gomez (9th Cir. 1996) 77 F.3d 301... 6.2. ee eee es 378 Filartiga v. Pena-Irala, (2d Cir. 1980) 630 F.2d 876 ........-. 366, 368 Ford v. United States (Sth Cir. 1953) 201 F.2d 300 195, 197, 198, 206, 332 Ford v. Wainwright (1986) 477 U.S. 399.0... ee eee ee 265, 297, 332 Francis v. Franklin (1985) 471 U.S. 307 0... eeeee 329 Frolova v. U.S.S.R. (7th Cir. 1985) 761 F.2d 370 1.2... eee eee 342 Gardnerv. Florida (1977) 430 U.S. 349 ......... 86, 147, 274, 339, 394 Geders v. United States (1976) 425 U.S. 80 2.6... eee eee eee 312 Giglio v. United States (1972) 405 U.S. 150 2.0... eee eee eee 185 Glass v. Louisiana (1985) 471 U.S. 1080 2...eeeee 390 Godfrey v. Georgia, (1980) 446 U.S. 420 2... eee eee eee passim Gray v. Mississippi (1987) 481 U.S. 648 0.0.6... eee eee 175, 323, 330 Gregg v. Georgia (1976) 428 U.S. 153 ......... 281, 306, 324, 335, 338, 391 Harris v. Wood (9th Cir. 1995) 64 F.3d 1432 «0.0... ce eee eee 267 Herring v. New York (1975) 422 US. 853 0... eee ees 312 Hewitt v. Helms (1983) 459 U.S. 460... 0.0... ee eee 216, 217, 241 Hicks v. Oklahoma (1980) 447 U.S. 343.6... ceee passim Hilton v. Guyot (1895) 159 U.S. 113 6.1eee 344, 345 Hitchcock v. Dugger (1987) 481 ULS. 393 0... eeeeee 394 Holbrookv. Flynn (1986) 475 U.S. 560 2...eeee 190 -X1V- Hughes v. United States (6th Cir. 2001) 258 F.3d 453 ..... 195, 209, 210 Inupiat Community ofthe Arctic Slope y. United States (9th Cir. 1984) 746 F.2d 570 2... ccccccet eee tenets 366 Irwin v. Dowd (1961) 366 U.S. 717. 06.ee 188, 190 Jecker, Torre and Company v. Montgomery (1855) 59 U.S. 110 . 345, 347 Johnson v. Armontrout (8th Cir. 1992) 961 F.2d 748 .......... 195, 206 Johnson v. Mississippi (1988) 486 U.S. 578 ..... 241, 259, 336, 350, 353, 356, 377, 392, 396 Kansas v. Marsh (2006) 126 S. Ct. 2516 2...ees 265 Kelly v. Stone (9th Cir. 1975) 514 F.2d 18 2.00... cee eee 392 Kirkpatrick v. Blackburn, (5th Cir. 1985) 777 F.2d 272 ........-4-- 269 Knox v. Collins (5th Cir. 1991) 928 F.2d 657 10... 0. eee eee 78, 125 Kotteakos v. United States (1946) 328 U.S. 750 20... eee ee 336 Kyles vy. Whitley (1995) 514 U.S. 419. 10.eeeee 185, 186 Lesko v. Lehman (3d Cir. 1991) 925 F.2d 1527. 1... eee ee 393 Lewis v. Jeffers (1990) 497 US. 764 o.oo eeeee 315, 316 Lockett v. Ohio (1978) 438 U.S. 586 .........-. 148, 274, 328, 329, 339, 394 Makv. Blodgett (9th Cir. 1992) 970 F.2d 614 ...........0-00- 267, 392 Mancusi v. Stubbs (1972) 408 U.S. 202 20...eee 256 Manson v. Brathwaite (1977) 432 U.S. 98 2...eee 236 -XV- Marshall v. United States (1959) 360 U.S. 310 ........-.- 189, 190, 287 Mattox v. United States (1895), 156 U.S. 237 0... cee eee ee 249 Maynardv. Cartwright (1988) 486 U.S. 356.6... eee eee eee passim McCleskey v. Kemp (1987) 481 U.S. 279.0... eee ee 310, 316, 323, 324 McDowell v. Dixon (4th Cir. 1988) 850 F.2d 740... 0.0.0.0... eee 184 McElroy v. Guagliardo (1960) 361 US. 281 2... ee ee eee 325 McKenzie v. Daye (9th Cir. 1995) 57 F.3d 1461 ......--.-- 0 ee eee, 342 Michigan v. Bryant (2011) 131 S. Ct. 1143 2... eee eee eee 251 Melendez-Diaz v. Massachusetts (2009) 557 U.S. 305 «0.6... ee eee 243 Miller v. United States (1870) 78 U.S. 268 2.0... eee ee 344 Miller v. Webb (6th Cir. 2004) 385 F.3d 666 ... 0.0.2... 20ers 194, 327 Mills v. Maryland (1988) 486 US. 367 2.1... eee eee nee 273 Moorev. Clarke (8th Cir. 1990) 904 F.2d 1226.........-.5-5: 309, 330 Morgan vy.Illinois (1992) 504 U.S. 719 2... ee ee eee 77, 83, 84, 85, 86, 124, 131, 203, 204, 205, 206 Mullaney v. Wilbur (1975) 421 U.S. 684 «0.2.0.6 0c e ee eee 296, 297 Murray v. The Schooner Charming Betsy (1804) 6 U.S. (2 Cranch) 64 358 Neder v. United States (1999) 527 U.S. 1...eeees 220 Neil v. Biggers (1972) 409 USS. 188. 2... eeeeee 236 Ohio v. Roberts (1980) 448 U.S. 56 21.ee tees 249 -XVI- On Lee v. United States (1952) 343 U.S. 747 ooce ee ee 232 Oyama v. California (1948) 332 U.S. 633 6.6... eee ee 358, 359 Parker v. Dugger (1991) 498 ULS. 308 26...ees 312 Parker v. Gladden (1966) 385 U.S. 363 0.0... cece eee es 83 Payne v. Tennessee (1991) 501 U.S. 808 . 2.6... eeeee passim Pennsylvania v. Ritchie (1987) 480 U.S. 39 0... eeeee 184 Penry v. Lynaugh (1989) 492 U.S. 302 2.6... eeeee 394 Pointer v. Texas (1965) 380 U.S. 400 2.0... eee eee 249 Pulley v. Harris (1984) 465 U.S. 37 2... ecee 287, 333 Pyler v. Doe (1982) 457 U.S. 202 octenes 286 Reagan v. United States (1895) 157 U.S. 301 2.6... eee eee 285 Richmond v. Lewis (1992) 506 U.S. 40. 2...ees 317 Ring v. Arizona (2002) 536 U.S, 584 1.0... ee eee eee 293, 300, 319, 321 Robinsonv. California (1962) 370 U.S. 660... 0.0.0... 0 bee eee 380 Rosales-Lopez v. United States (1981) 451 U.S. 182.........--..005- 86 Ross v. Oklahoma (1988) 487 U.S. 81 0.0... ee 133, 208, 345 Sabariego v. Maverick (1888) 124 U.S. 261 1.0... . eee eee 344 Santosky v. Kramer (1982) 455 US. 745... eeeees 331 Schad v. Arizona (1991) 501 U.S. 624 2... eeeee 307 Shell v. Mississippi (1990) 498 U.S. 1 oo.eeee 309, 330 -XVii- Sheppard v. Maxwell (1966) 384 U.S. 333 1... ee eee eee 189 Smith v. Murray (1986) 477 U.S. 527 oeens 343 Smith v. Zant (11th Cir. 1988) 855 F.2d 712 0...eeeee 393 Standen y. Whitley (9th Cir. 1993) 994 F.2d 1417 «0... . 0... eee eee 194 Stanford v. Kentucky (1989) 492 U.S. 361 2.0... eee eee ee 341, 343 Strickland v. Washington (1984) 466 U.S. 668 ....... 06. e eee eee 103 Stringer v. Black (1992) 503 U.S. 222 ........-. 306, 310, 315, 316, 317, 318, 330, 331, 332 Sullivan v. Louisiana (1993) 508 U.S.275 ...... 173, 221, 280, 285, 296 Taylor v. Kentucky (1978) 436 U.S.478 «0.0... cece eee 267, 268 The Paquete Habana (1900) 175 U.S. 677 1... eeeee 358 Thompson v. Oklahoma (1988), 487 U.S. 815 2... ee eee 343, 345 Trans World Airlines, Incorporated v. Franklin Mint Corp. (1984) 466 U.S. 243eeeete tenet eens 358 Trop v. Dulles (1958) 356 U.S. 86 00...eeeens 344 Tumey v. Ohio (1927) 273 U.S. 510 ......--00- 119, 205, 220, 221, 329, 394 Turner v. Murray (1986) 476 U.S. 28 0.6... eee eee 84, 85, 86 Tyler v. Nelson (10th Cir. 1999) 163 F.3d 1222 ....... 0.000022 e eee 195 Trop v, Dulles (1958) 356 U.S. 86 2.6.eens 390 United States v. Agurs (1976) 427 U.S.97 6... eee eee es 184 United States v. Bagley (1985) 473 U.S. 667 .......-. 184, 185, 186, 188 -XVili- United States v. Baldwin (9th Cir. 1983) 607 F.2d 1295 ..... 78, 124, 328 United States v. Baresh (S.D.Tex. 1984) 595 F.Supp. 1132 ......... 232 United States v. Booker (2005) 543 U.S. 220 ©. 1... ee ees 319 United States v. Duarte-Acero (11th Cir, 2000) 208 F.3d 1282 ...... 342 United States v. Fallon (7th Cir. 1985) 776 F.2d 727 «6.0... eee ee 233 United States v. Frazier (1948) 335 U.S. 497 .........55. 194, 206, 210 United States v. Gonzales (9th Cir. 2000) 214 F.3d 1109 .........-. 204 United States v. Harbin (7th Cir. 2001) 250 F.3d 532 .......... 173, 174 U.S. v. Hearst (9th Cir. 1980) 638 F.2d 1190 ........ eee eee 103 United States v. Johnston (5th Cir. 1997) 127 F.3d 380 .........-5- 149 United States v. Lesina (9th Cir. 1987) 833 F.2d 156 .......---.05- 286 United States v. Martinez (Sth Cir. 1998) 151 F.3d 384 ............ 149 United States v. Moore (D.C. 2011) 651 F.3d30......-.-.0055 252, 253 United States v. Nell (5th Cir. 1976) 526 F.2d 1223 ......-....0 05 204 United States v. Nelson (2d Cir. 2002) 277 F.3d 164..........--.05- 194 United States v. Noriega (1992) 808 F.Supp. 791....... 0-00 ee eee 373 United States v. Saimiento-Rozo (5th Cir. 1982) 676 F.2d 146 .... 78, 124 United States v. Torres (2d Cir. 1997) 128 F.3d 38 ........+-0 0 eee 195 United States v. Tucker (9th Cir. 1983) 716 F.2d 576 .......-..005: 392 United States v. Turner, (E.D.Mich. 1979) 490 F.Supp. 583 .......-. 232 -X1X- United States v. Wiles (10th Cir. 1996) 102 F.2d 1043 ..... 195, 206, 367 United States v. Young (1985) 470 U.S. 1 oo. eee ees 147, 174 Utrecht v. Brown (2007) 551 U.S.Leeens 173 Vitek v. Jones (1980) 445 U.S. 480 2...eee 241 Wainwright v. Witt (1985) 469 U.S. 412 ......... 83, 132, 133, 159, 161, 172, 175, 176, 202, 203, 206, 332 Walton v. Arizona (1990) 497 U.S. 639 oo.eee 297, 299 Weinberger v. Rossi (1982) 456 U.S. 25 26... cece eee 358 White v. Illinois (1992) 502 U.S. 346 0.cteee 251 Williamsv. Illinois (2012) _U.S.__, 132 8. Ct. 2221 ........ 254, 255 Williams v. Woodford (9th Cir. 2002) 306 F.3d 665. . 11... eee eee 234 Inre Winship (1970) 397 U.S. 358 oo.eeeee 299, 300, 331 Witherspoonv. Illinois (1968) 391 U.S.510 ...... 83, 132, 172, 175, 180, 202, 351 Wolffv. McDonnell (1974) 418 U.S. 539 1... eeeee 241 Wood v. Georgia (1981) 450 US. 261 ........... 100, 102, 280, 306, 310, 315, 316, 327, 328, 330, 331 Woods v. Dugger, (11th Cir. 1991) 923 F.2d 1454 ........ 188, 190, 393 Woodsonv. North Carolina (1976) 428 U.S. 280 «0... 66-02 e eee passim Zant v. Stephens (1983) 462 U.S. 862 «1.0... cee eee eee passim Zemina v. Solem (D.S.D. 1977) 438 F.Supp. 455 6... eee 286 -XxX- STATE CASES Arnold v. State (Ga. 1976) 224 S.E.2d 386 ......-..- 280, 281, 282, 328 Covarrubias v. Superior Court (1998) 60 Cal.App.4th 1168 ee eee nee eee eet een eee e ees 78, 81, 84, 87, 89 Curry v. Superior Court (1970) 2 Cal.3d 707 00... eee eee eee 159 Grobesonv. City ofLos Angeles (2010) 190 Cal.App.4th 778 ....... 170 Hernandez v. State (Nev. 2008) 188 P.3d 1126 ........- 00. sees 255 Hovey v. Superior Court (1980) 28 Cal.3d 1. 0... eee eee eee eee 79 In Re Lance Western (1985) 37 Cal.3d 873 2.0.0... cee eee eee 329 Inre Richard Western (1979) 91 Cal.App.3d 960 ..........-5- 119, 120 Jackson v. Superior Court (1937) 10 Cal.2d 350 1... 0... eee ee eee 159 Jennings v. State (1987) 512 So0.2d 169 ...... 6 eee eee 163, 164, 165 Kessler v. Gray (1978) 77 Cal.App.3d 284 «1.0.06... ce eee eres 257 Larios v. Superior Court (1979) 24 Cal.3d 324 0.0... 6 cece eee 159 Matthews v. Superior Court (1989) 209 Cal. App. 3d 155... .....-. 141 Maxwell v. Superior Court (1982) 30 Cal.3d 606 ......-.-- eee eee 102 In re Miguel L., (1982) 32 Cal.3d 100 ........ ee eee eee teens 232 Miller v. State (Fla. 1979) 373 So0.2d 882 ..... 0ceee 327 Namba v. McCourt (1949) 185 Or. 579 0... ceeees 359 People v. Alexander (2010) 49 Cal.4th 846 . 0.0... 6. eee eee eee eens 168 People v. Allen (1986) 42 Cal.3d 1222 ©... .. cee eee ees 233, 240, 330 -XXI- People v. Allen/Johnson (2011) 53 Cal.4th 60 .... 166, 169, 170, 171, 173, 239, 240 People v. Ashmus (1991) 54 Cal.3d 932 ........+-5- 336, 349, 352, 396 People v. Avena (1996) 13 Cal.4th 394 2.1... eee eee eee eee 133 People v. Bacigalupo (1993) 6 Cal.4th 457 .......... 283, 301, 317, 318 People v. Barboza (1981) 29 Cal.3d 375 ........ 103, 104, 105, 108, 116 People v. Benson (1990) 52 Cal.3d 754 0... 0. eee eet ees 325 People v. Blair (2005) 36 Cal.4th 686 ©... 0... cee e ee eee eee 208 People v. Blankenship (1985) 167 Cal.App.3d 840 ... 2... 6.00 sees 237 People v. Bolin (1998) 18 Cal.4th 297 0... 0. cee eens 207 People v. Bonin (1989) 47 Cal.3d 808 «02.0... cece eee eens 101 People v. Box (2000) 23 Cal.4th 1153 2.2... ec eee eee eee eee 87 People v. Boyde (1988) 46 Cal.3d 212 ....... 65. eee eee 179, 352, 396 People v. Brady (2010) 50 Cal.4th 547 2.0... eee eee 261 People v. Breaux (1991) 1 Cal.4th 281 6... ee eee eee 281 People v. Breyer (1934) 139 Cal. App. 547 10... eee eee eee 329 People v. Brown (1985) 40 Cal.3d 512. 2... 6. eee eee eee 282, 283 People v. Brown (1988) 46 Cal.3d 432 2.6... 06 ee eee eee 335, 349 People v. Brown (2003) 31 Cal.4th 518 ........--- eee eee 242, 352, 396 People v. Burns (1952) 109 Cal.App.2d 524 2.0.6... see eee renee 214 People v. Carrington (2009) 47 Cal.4th 145 2.0... 6 ee eee eee 290 -XXii- People v. Caruso (1968) 68 Cal.2d 183 20.6... eee ee eee 236 People v. Chapman (1993) 15 Cal.App.4th 136 ... 78, 124, 269, 317, 322, 326, 329 People v. Cleveland (2001) 25 Cal.4th 466 ...........0-0-05- 160, 161 People v. Coleman (1988) 46 Cal.3d 749 2.0... 0. ee eee eee 205, 206 People v. Compton (1971) 6 Cal.3d 55 1... ceeeee 160 People v. Costello (1943) 21 Cal.2d 760 2.0.0... c eee ee eee 285 People v. Crittenden (1994) 9 Cal.4th 83.0.0... 0c eee ee eee 175 People v. Cudjo (1993) 6 Cal.4th 585.0... eeeee eee 258 People v. Cummings (1993) 4 Cal4th 1233 .... 00.0... e eee eee 83, 258 People v. D’Arcy (2010) 48 Cal.4th 257 2.0...eee 290 People v. Davenport (1985) 41 Cal.3d 247 2.0... cc cece eee eee 326 People v. DeJesus (1995) 38 Cal.App.4th 1... 6... eee eee eee 120, 121 People v. Duncan (1991) 53 Cal.3d 955 oo... eee eee 279, 285 People v. Easley (1983) 34 Cal.3d 858 0.0... cee eee 205 People v. Edwards (1991) 54 Cal.3d 787 0.0... cee eee 272 People v. Engelman (2002) 28 Cal.4th 436 ....... 0.0 ee eee eee 261 People v. Ervine (2009) 47 Cal.4th 745 2.0... eee ees 290 People v. Fields (1983) 35 Cal.3d 329. ..........055 233, 238, 239, 240 People v. Fiero (1991) 1 Cal.4th 173 2... 0... . cee eee eee 273, 320 People v. Foilson (1994) 22 Cal.App.4th 1841. ............02 005. 258 -XXlil- People v. Ghent (1987) 43 Cal.3d 739 0.0... cece eee eee tenes 328 People v. Glenn (1991) 229 Cal.App.3d 1461... 6.0... eee eee eres 286 People v. Gordan (1990) 50 Cal.3d 1223) 1.2... cece cee ee eee 236 People v. Green (1951) 102 Cal.App.2d 831 «1.6... ee eee eee ees 232 People v. Guerra (2006) 37 Cal.4th 1067 ........5+-- essere. 160, 320 People v. Guiton (1993) 4 Cal.4th 1116.0... 0... 6c eee eee eee 264 People v. Gurule (2002) 28 Cal.4th 557 0.20... eee eee eee 242, 243 People v. Hamilton (1989) 48 Cal.3d 1142 2.0... 0. eee eee eee eee 233 People v. Hannon (1977) 19 Cal.3d 588 «2... ee eee eee eee 324 People v. Harris (1994) 22 Cal.App.4th 1575 1.0.6... eee eee eee 225 People v. Hawthorne (1992) 4 Cal.4th 43 oo... cece eee eee 322 People v. Hayes (1990) 52 Cal.3d 577 1... cece eens 392 People v. Heard (2003) 31 Cal.4th 946 ......... 173, 175, 178, 179, 180 People v. Hernandez (2003) 30 Cal.4th bo... ee eee eee eee eee ee 175 People v. Hillhouse (2002) 27 Cal.4th 469... 0... ee eee ee eee 207 People v. Hines (1997) 15 Cal.4th 997 6.0... cece eee eee es 180 People v. Holt (1997) 15 Cal.4th 619 2.0... cece eee eee eee 178 People v. Hovey (1980) 28 Cal.3d 1 .......... eee eee 84, 85, 88, 89, 351 People v. Johnson (1992) 3 Cal.4th 1183 1.6... eee eee ees 236 People v. Johnson (1993) 6 Cal. 4th 1 oo... 0... e eee 138, 139, 140, 236 -XXIV- People v. Johnson (1993) 6 Cal4th 1 oo... cee ee eee 160 People v. Kaurish (1990) 52 Cal.3d 648 2.00... cc eee eee 179 People v. Kelley (1980) 113 Cal.App.3d 1005 ..........-- 02s eee 285 People v. Kelly (1990) 51 Cal.3d 931 .. 0... eee ees 322, 328 People v. Kessel (1976) 61 Cal.App.3d 322 ..... 0.0... ee ee eee 89 People v. Kipp (1998) 18 Cal.4th 349 1.00... cece eee 207 People v. Ledesma (2006) 39 Cal.4th 641 0.0... 0. cee eee eee 171 People v. Lewis (2006) 39 Cal.4th 970 2.0... cece eee 322 People v. Lomax (2010) 49 Cal.4th 530 0... 0... ee ee ee eee ee 168, 169 People v. Marsh (1985) 175 Cal.App.3d 987.2... eee eee eee 214 People v. Martinez (2010) 47 Cal.4th 911 2.0... cee eee eee 290 People v. Mason (1991) 52 Cal.3d 909 1.0... eee eee ee ees 177, 178 People v. McDermott (2002) 28 Cal.4th 946 ............-005. 242, 243 People v. McWhorter (2009) 47 Cal.4th 318 22... 6... eee ee eee 290 People v. Medina (1974) 41 Cal.App.3d 438 .......-0.- +0 ees 233, 238 People v. Medina (1995) 11 Cal.4th 694 ...........-.-4- 179, 238, 239 People v. Mendoza (2000) 24 Cal.4th 130... 0... eee ee eee ees 320 People v. Merced (2001) 94 Cal.App.4th 1024 .........--.. eee eee 211 People v. Mills (2010) 48 Cal.4th 158 2.0... eee eee eee ees 290 People v. Mincey (1992) 2 Cal.4th 408 «20.0.6... eee eee eee 175 ~XXV- Peoplev. People v. People v. People v. People v. People v. People v. People v. People v. Peoplev. People v. Peoplev. People v. Peopley. Peoplev. People v. Peoplev. Peoplev. Peoplev. People v. Miranda (1987) 44 Cal.3d 57 0.0... ccc eee 133, 322 Moore (1954) 43 Cal.2d 517 0... ecees 285 Mroczko (1983) 35 Cal.3d 86 2.2... 0. ccc ee eee 101 Pearson (2012) 53 Cal.4th 306 2.0... 0c eee eee 172 Phillips (1985) 41 Cal. 3d 29 0.0... ccceee 183 Phillips (2000) 22 Cal.4th 226 ....... 00. e cece eee eee 178 Ramos (2004) 34 Cal.4th 494 20... . eeeee 208 Rhinehart (1973) 9 Cal.3d 139 0... 6. cece ee eee 225 Rincon-Pineda (1975) 14 Cal.3d 864 ....... 0.0.0.0 ee eae 324 Rodrigues (1994) 8 Cal. 4th 1060 .........- eee eee eee 183 Roldan (2005) 35 Cal.4th 646 1.0.0... 00 cee eee eee 211, 213 Sanchez (1996) 12 Cal.4th bo... cc eeeeee 180 Saunders (1995) 11 Cal.4th 475 0.0...eeeee 273 Schmeck(2005) 37 Cal.3d 240 ........ 289, 290, 294, 300, 302, 320 Smith (1973) 33 Cal.App.3d 51 0.0.0... c ee eee 215 Staten (2000) 24 Cal.4th 434 00.0... cee eee eee 207, 208 Stewart (2004) 33 Cal.4th 425 00... eee eee eee 176, 180 Superior Court (Alvarez) (1997) 14 Cal.4th 968..87, 88, 89, 90, 92 Superior Court (Greer) (1977) 19 Cal.3d 255 .........5.- 119 Superior Court (Mitchell) (1993) 5 Cal.4th 1229 ......... 141 -XxXvl1- People v. Superior Court (Romero) (1996) 13 Cal.4th 497 ........... 89 People v. Taylor (2010) 48 Cal.4th 574 20... cece eee 290 People v. Wader (1993) 5 Cal.4th 610 2... 6c. cee ee eee 318 People v. Waidla (2000) 22 Cal.4th 690 1... 0... ce eee eee eee 85, 87 People v. Watson (1956) 46 Cal.2d 818 ......... 241, 259, 324, 335, 336, 348, 349, 351, 352, 377, 395, 396 People v. Williams (1997) 16 Cal.4th 153 2... cee eee 225 People v. Williams (2001) 25 Cal.4th 441.2... cee eee ee 261 People v. Wilson (2008) 44 Cal.4th 758 ......... 161, 171, 172, 261, 264 People v. Young (1929) 100 Cal.App. 18 ......... 002 eee eee eee 174 People v. Zamudio (2008) 43 Cal.4th 327 2.0... cece eee 160 People v. Zapien (1993) 4 Cal.4th 929.1...ceeee 179 Rose v. California (1942) 19 Cal.2d 713 2.0... eens 329 Sei Fujii v. California (1952) 38 Cal.2d 718 2.0.0... ee eee ee eee 372 State v. David (La. 1985) 468 So.2d 1126 2...eee 328 State v. King (Wis. App. 2005) 706 N.W.2d 181 ........... 200005 255 State v. Michaels (1994) 642 A.2d 1372 2.0... cc eee 235, 236 State v. Wood (Utah 1982) 648 P.2d 71 0.0...ceeee 331 FEDERAL STATUTES UN Charter, June 26, 1945, 59 Stat. 1031 .. 0.0... ... eee eee 361 -XXVIi- ULS. Const 0...ceceeet n ene 77, 83, 124, 131 U.S. Const., Amend. Vo...ceeeeee passim U.S. Const., Amend. VI 2... .. 0... ccceetenes passim U.S. Const., Amend. VII... 0...eens passim U.S. Const., Amends. XIV... 0... eeeee tee passim 22 ULS.C. § 2304(a)(1) ooeeeeens 368 STATE STATUTES Ariz. Rev. Stat. Ann. § 13-703(F), (G) (West 1993) ...........0005 307 Ariz. Rev. Stat. Ann. § 13-703 (E), (F) (West 1993) ............4-. 308 Cal. Const., art. 1.0... ceceeee eet tees 159, 286 Cal. Const., art. I, section 15...eeene 100 Cal. Const., art. 1, § 7, subd 2.0.0... 0.eee 119 Cal. Rules of Court, Rule 36(B)(2) 20... .eeeee 398 Cal. Penal Code Section 170.6... 2... . ccceeeee 93-100 Cal. Penal Code Section 187 2.2... eceeees 3, 4, 33 Cal. Penal Code Section 190. 2...eeeens 295 Cal. Penal Code Section 190.2 0.0... . 0... eeeees 288, 295 Cal. Penal Code Section 190.2(A)(17) 2.0...eees 3 Cal. Penal Code Section 190.3... ... eee eee 137, 140, 179, 278, 295, 279, 306-308,314, 318 -XXVili- Cal. Penal Code Section 190.3(a) 2.0... ccceee 272, 273 Cal. Penal Code Section 190.3(b) 2.2.0... eee eee 136, 183 Cal. Penal Code Section 211 2...0.es 3, 4, 33 Cal. Penal Code Section 233. 2.0.0... ceeets 80 Cal. Penal Code Section 261.5 2.0.0...eeees 183 Penal Code Section 459 20...eceeeens passim Cal. Penal Code Section 1054 2.0... ceeees 141 Cal. Penal Code Section 1089... 0... 6... eee ee eee 159, 166, 167, 168 Cal. Penal Code Section 1111] 2...eeeee eee 242 Cal. Penal Code Section 1170.12 20... .ccceee 3 Cal. Penal Code Section 1239 .. 0...ete 2, 373 Cal. Penal Code Section 1324 2.0... 2... cece eee 218, 219 Cal. Penal Code Section 3604 2.0... 2.ceeeee 378 Cal. Penal Code Section 3604(a) «0.0.0...cceee 381, 385 Cal. Penal Code Section 3604(d) .... 0.0...ees 379 Conn. Gen. Stat. Ann. § 53a-46a(g), (h) (West 1985) .......... 307, 308 Del. Code Ann.tit. 11, § 4209(e) (1992) .. 0. cee eee 308 Fla. Stat. Ann. § 921.141 (5), (6) (West 1992)... 0... eee eee eee 307 Fla. Stat. Ann. § 921.141(2)(a) (West 1992) .. 0... eee eee 308 Idaho Code § 19-2515(g) (1987) 0... tees 308 -XXIX- Ill. Ann, Stat. ch. 38 0.00...ceee eee nena 307 Ky. Rev. Stat. Ann. § 532.025(2) (Michie 1984) ............-- 307, 308 ~ La. Code Crim. Proc. Ann.art. 905.4, 905.5 (West 1993) ........... 307 La. Code Crim. Proc. Ann.art. 905.3 (West 1993) .........0.00 eee 308 Md. Ann. Codeart. 27, § 413 (d), (g) (1993) .. 2c ee eee 307 Md. Ann. Codeart. 27, § 413(f) (1993) . 06.eeeee 308 N.C. Gen.Stat. § 15A-2000(e), (f) (1988) .. 0... eee cee eee 308 N.H.Rev. Stat. Ann. § 630.0... 0... cccceete ene 307 Neb.Rev.Stat. § 29-2523 (1987)... 0... eect eeee 307 Ohio Rev. Code 2929.04(A), (B) (Page’s 1992) ......... eee eee ee 308 Okla. Stat. Ann.tit. 21, § 701.12 (West 1983) ..........- eee eee ee 308 Okla. Stat. Ann.tit. 21, § 701.10(c) (West 1993) ........ eee eee 308 42 Pa. Cons. Stat. Ann. § 9711(d) (1993) 1.6... eee ee 308 Va. Code Ann. § 19.2-264.2 (Michie 1990) ...........2-.0065 308, 309 Wash.Rev. Code Ann. §§ 10-.95.020, 070 (West 1990) ............ 308 -XXX- IN THE SUPREME COURTOF THE STATE OF CALIFORNIA PEOPLE OF THE STATE OF CALIFORNIA, S$104144 Automatic Appeal (Capital case) Plaintiff and Respondent, Contra Costa Co. Superior Court JOSEPH ANDREW PEREZ,JR. No. 990453-3 Defendant and Appellant. N e e e e e e e e e e e e e e e S S ” APPELLANT’S OPENING BRIEF Appeal from the Judgment of the Superior Court of the State of California for the County of Contra Costa HONORABLEPETERL. SPINETTA, JUDGE A. RICHARD ELLIS Attorney at Law CA State Bar No. 64051 75 Magee Ave. Mill Valley, California 94941 Telephone: (415) 389-6771 Fax: (415) 389-0251 Attorney for Appellant IN THE SUPREME COURT OF THESTATE OF CALIFORNIA ) PEOPLE OF THE STATE OF CALIFORNIA, ) ) $104144 Plaintiff and Respondent, ) Automatic Appeal ) (Capital case) Vv. ) ) ) Contra Costa Co. ) Superior Court JOSEPH ANDREW PEREZ,JR, ) No. 990453-3 ) Defendant and Appellant. ) ) APPELLANT’S OPENING BRIEF STATEMENT OF APPEALABILITY This is an automatic appeal from a judgment of death made directly to this Court pursuant to Penal Code Section 1239.' STATEMENTOF THE CASE This case arises from a homicide that occurred on March 24, 1998 in Lafayette, California, in which the victim Janet Daher was killed in the course of an alleged residential burglary. Grand jury proceedings against appellant | All statutory references are to the California Penal Codeunless otherwise indicated. -2- and co-defendants Lee Snyder and Maury O’Brien commenced on March 23, 1999. (1 RT 100.)° There were four chargesin the initial draft indictment: murder;residential robbery; residential burglary; and the theft of the victim’s vehicle. (1 RT 431; 3 CT 768-769.) The grand jury votedto indite appellant, Snyder and O’Brien on these charges andit was found to be a True Bill. (1 RT 478-480.) Prosecutor Paul Sequeira amendedthe indictmentto add prior enhancement, a prior strike under Penal Code Section 1170.12, and a prison prior for appellant. (1 RT 480; 3 CT 774-775.) Contra Costa Superior Court proceedings commenced on March 26, 1999. (3 RT 487.) Appellant Perez, Lee Snyder and Maury O’Brien were charged by the grand jury indictment with murder, a violation of Penal Code Section 187, that on or about March 24, 1998 they murdered Janet Daher. (9 RT 2027.) The special circumstances allegations, pursuant to Penal Code Section 190.2(A)(17), were that the murder was committed while they were engaged in the commission of robbery and a burglary. (9 RT 2028.) Count Two charged a violation of Penal Code Section 211/212.5(A), first degree residential robbery, by taking personal property from Ms. Daher. (/d.) Count Three charged a violation ofPenal Code Section 459/460(A), first degree residential burglary, by entering an inhabited building 2 “RT”designates the Reporter’s Transcript in these proceedings, “CT” designates the Clerk’s Transcript, and “JQ” the Juror Questionnaires, with the volume numberpreceding the page number. -3- at 1253 Rose Lanein Lafayette, California, with the intent to commit larceny and a felony. (9 RT 2029.) Count Four charged them with a violation of ~ Vehicle Code Section 10851(A), the unlawful driving or taking of a vehicle belongingto the victim. (/d.) The indictmentwassigned by the foreman ofthe grand jury and Paul Sequeira, prosecuting deputy district attorney, and dated March 24, 1999. (9 RT 2030; 3 CT 768-769.) Appellant was foundto be indigent. Representing him at trial were appointed counsel William Egan of the Contra Costa County Public Defender’s Office and appointed private counsel Linda Epley as second chair. (Id.) Paul Sequeira of the Contra Costa County District Attorney’s Office represented the State. Appellant entered a plea of not guilty. (3 RT 488-489.) The cases of Snyder, O’Brien and appellant were later severed. (3 RT 584.) Jury selection began on September 12, 2001. (6RT 1 195.) Testimony in appellant’s trial began on September 20, 2001, in Contra Costa County Superior Court, Hon.Peter L. Spinetta presiding. (9 RT 2007.) On October 16, 2001, appellant was found guilty on all counts: Count 1, murder, in violation of Penal Code Section 187; Count 2, the murder was committed while engaged in a robbery,a violation of Penal Code Section 211; Count 3, first degree burglary, a violation of Penal Code Section 459 and 460; and Count4, taking of a vehicle in violation of Vehicle Code Section 10851. (15 RT 3688-3689.) The penalty phase commenced on October 29, 2001 (16 RT 3813) and on November 16, 2001, the jury reached a verdict of death. (24 RT 5540; 5 CT 1920-1922.) On January 25, 2002, a motion for a new trial was denied. (24 RT 5586.) A defense application for modification of the death sentence was also denied. (24 RT 5595.) The court found that the aggravating factors outweighed the mitigating ones and the defendant had shown “no sense of wrongdoing or remorse.” (24 RT 5596.) Appellant was sentenced on Count 1, murder in the commission of robbery; Count 2, first degree residential burglary; Count 3, residential burglary; Count 4, vehicle theft. (24 RT 5601.) The sentences were stayed on Counts 2 and 3; six years were imposed for burglary, four years on robbery, which was stayed, two years on vehicle theft, also stayed; and death was imposed for the Count 1 murder. (24 RT 5605.) Appellant was then formally sentenced to death on January 25, 2002. (24 RT 5618.) On February 9, 2007, undersigned counsel was appointed by the Supreme Court of California to represent appellant in his automatic direct appeal proceedings. Thecertified record on appeal wasfiled in this Court on February 27, 2007 and, after record correction and augmentation proceedings, the record wascertified as accurate on August 13, 2009 by the superior court. On May 28, 2010, portions of the record were returned to the superior court for corrections. The superiorcourt returned the corrected record to this Court ~ but certain transcripts were again returned to the superior court for further corrections on July 12,2010. Those corrections were made andthese portions ofthe record werethen returned to this Court on July 26, 2010. Portionsofthe record were again returnedto the superior court for additional corrections on September 8, 2010. The corrected portion of the record on appeal wasthen returned to this Court on September 29, 2010. On October6, 2010, a portion of the record was once again returned to the superior court for further corrections. The corrected portion ofthe record on appeal wasreturnedto this Court on October 14, 2010. The final record on appealwasfiled in this Court on October 15, 2010. STATEMENT OF FACTS 1) Guilt-innocence phaseofthe trial: the State’s case. a) The crime. Testimony in appellant’s trial began on September 20, 2001, in Contra Costa County Superior Court. (9 RT 2007.) Joe Daher, the husband of the victim, lived at 1253 Rose Lane in Lafayette, California in March of 1998, with his wife Janet and two daughters, Lauren and Annie. (9 RT 2059.)> On March 24, 1998, he wascalled for jury duty in Walnut Creek and wasreleased about 9:30 or 10 a.m. He returned home, where his wife was in the kitchen, and wentupstairs to his homeoffice. (9 RT 2061.) Mr. Daherate lunch andthen left around 2 p.m.to attend his daughter Lauren’s softball game at Grenada High School in Livermore. (9 RT 2062.) He returned from the game around dinnertime and on the way home he received a call from his other daughter Annie. She was concerned becauseshe > Beforetrial, the prosecution revealed that Mr. Daher was having an affair with another womanat the time of his wife’s murder. (5 RT 1185.) Although this womanwasaninitial suspect, nothing allegedly came ofthe investigation and the prosecutor represented to the court thatit was“pretty clear” that neither this woman nor Mr. Daher were involvedin the murder. (5 RT 1185-1186.) The court ordered no references be made to this relationship at trial without the parties first approaching the bench. (5 RT 1186.) -7- had not been picked up from school, had found her mother’s purse onthe floor of their house, and didn’t know where she was. (9 RT 2064-2065.) Annie hadcalled the police. (/d.) When Mr. Daherarrivedat his house, policemen were present and he wasnot allowed to enter. (9 RT 2066.) Three dayslater, Mr. Daherattended a walk-through of the house and supplied the police with a list of missing items. (9 RT 2068.) His wife owned a Mercedes SUV which wasnot in the garage. (9 RT 2073.) Janet Daher’s purse was on the floor of the family room and the upstairs office had been ransacked andthings were also strewn about in the master bedroom upstairs. (9 RT 2073-2076.) One of the stereo pieces had been removed from the armoire, the cords were pulled out, and one of the speakers had been ripped from the wall. (9 RT 2079.) Theless valuable jewelry was kept in the master bedroom closet. (9 RT 2078, 2081-2089.) Most of the Daher’s valuable jewelry was kept in the kitchen pantry in a plastic lunch pail which was recovered and identified. (9 RT 2084, 2108.) A diamondring worth about $20,000 and anniversary rings worth several thousand dollars were missing. (9 RT 2090-2091.) All together, the missing items were worth $40,000 or more. (9 RT 2092, 2097.) Annie Daher,the 16-year-old daughterofthe victim,testified that she lived at 1253 Rose Lane in Lafayette on March 24, 1998. (9 RT 2100.) Usually she was picked up after school by her motherat a restaurant, where she was to be met at 3 p.m. that day. (9 RT 2101.) When Annie arrived at the restaurant, her mother wasnot there so she called home between 3:15 and 3:30 and left a message. (9 RT 2102.) At about 4:30 p.m., she decided to walk home, which took between a half hour and forty-five minutes. (9 RT 2103.) She madeherself a snack and then watched TV anddid a little homework. (9 RT 2104.) She eventually called the police and they said they had found her mother’s car in Fairfield. (9 RT 2107.) The police arrived after 6 p.m. and went upstairs. (9 RT 2107.) Dr. Brian Peterson, a forensic pathologist, testified regarding the autopsy performed on Janet Daher on March 26, 1998. (13 RT 3001.) There wasevidence ofligature strangulation accomplished by a phone cord. (13 RT 3007.) In his opinion, death was caused by a combination of ligature strangulation and stabbing. (13 RT 3021.) There was no waytotell if Mrs. Daher was conscious or unconscious when she wasstabbed. (13 RT 3025.) b) Aftermathofthe crime, recovery of the victim’s vehicle, and the investigation. Richard Solback was an employee of Solano County Roofing Companyin Fairfield and on March 24, 1998, he wasat work. (10 RT 2268- 2270.) Around 4:30 or 5 p.m.he noticed a carin the yard up against the fence as if someonewastrying to concealit. (10 RT 2271.) Mr. Solbackcalled the -9- police and they eventually arrived. (10 RT 2272.) Later, the police found out that the owner, a lady, was dead. (10 RT 2274.) As he left the yard, Mr. Solback sawthree people, who he could notidentify, walking toward Cordelia Road. (10 RT 2277.) Officer Martin Randal Kauffman,ofthe Fairfield Police Department, was working on March 24, 1998,patrolling the Cordelia Road area. (10 RT 2286.) He wasflagged down by Mr.Solback near the Solano County Roofing Companylot. (10 RT 2287.) Theofficer was shownthe Mercedes which was parked near a fence whereit couldn’t be seen from the road. (10 RT 2288.) Later, contact was made with the owner’s daughter and information was received that the vehicle may havebeen stolen in a homicide. (10 RT 2290.) Sgt. Michael Fisher, an officer with the Contra Costa Sheriffs Department,testified that on March 24, 1998at 6:41 p.m. he wasasked to do a welfare check on the owner of a vehicle. (9 RT 2185.) A Mercedes SUV had been foundnear a roofing business, the keys were in the ignition and the doors were open. (9 RT 2185.) The officer was asked to check with the registered owner, the Dahers, and hearrivedattheir residence at 6:56 p.m. (9 RT 2186.) The garage door wasopen.(/d.) The victim’s daughter, Annie Daher,had earliercalled the police,as she did not know where her mother was and she had foundherpurse in the home. -10- (9 RT 2187.) The officer noticed that the purse lookedlike it had been forced open and the contents were strewn about. (9 RT 2187.) The officer went up the main staircase and searched upstairs. (9 RT 2190.) In every room,the closets were open, drawers were pulled out and clothes were strewn on the floor. (/d.) In the master bedroom, he found Mrs. Daher lying on the floor face down with her hands tied behind her back with a phone cord. (9 RT 2191.) John Nelson, a criminologist with the Contra Costa Sheriff's Department, responded to the crime scene at the Solano County Roofing Companyandarrived at about 9:45 p.m. on March 24, 1998. (10 RT 2299.) He attempted to obtain fingerprint evidence from variousitemsin the vehicle: a soda can, a wallet-sized photo of a white male juvenile, a plastic bag with a syringe. (10 RT 2300-2305.) Severalareas in the frontseat, on the glove box, the console and the steering wheeltested positive for blood andthere wasalso a blood stain in the middle ofthe back seat. (10 RT 2310.) The garage door openeralso tested positively for blood, as did some breath mints. (10 RT 2311.) Over two monthslater, on June 6, 1998, Mr. Nelsonalso assisted when the murder weapon waslocated. (10 RT 2317.) He respondedto a Shell gas station at Cordelia and Pitman Road where a knife was found in the grass at -l1- the highway interchange where Suisun Valley Road crosses Highway80. (10 RT 2318.) c) The identification and mis-identification of appellant. There was conflicting testimony regarding the identification of appellant near the sceneofthe crime on the day in question. Several witnesses failed to pick him out of lineups. One witness mistakenly identified another person in a lineup containing appellant. Kathleen Burke, an interior designer friend of Janet Daher, testified that she drove onto Rose Lanethat afternoon and noticed three kids or young men walking away from her. (9 RT 2115.) They attracted her attention because they were dressed in heavy winter clothing although it was warm (Id.); they looked at her“in a very mean way”(9 RT 2118); and they seemed out of placein the affluent neighborhood. (/d.) Ms. Burke then called the police about the men and asked that an officer be sentto the area. (9 RT 2120.) Her description to the 911 operator was “three men,dark clothing, walking down Rose Lane.” (9RT21 36).* She 4 Her description of one was a “white male, blond hair, fair complexion, clean haircut, five eight to five nine, 175, wearing a green jacket...” Two had baseball caps on and onehad a blackknithat. Another male was described as “a white male, 18 to 21 years, six-feet one to six-foot two, 180, darker hair, darker skin, wearing a dark colored knot cap.” And the other was “a white male, 18 to 21 years, brown hair, samebuild as numberone...” (9 RT 2137-2139.) -12- said that one ofthe men wastaller than the others and he wore a black stocking hat and the other two were shorter. (9 RT 2122.) The men were all white and somewhat unkempt; one wasthinner and the other two were more heavy-set. (9 RT 2123.) Theyall looked about 18 to 21 years old and they were wearing dark pants. (9 RT 2124.) When Ms. Burke got to the Daher’s house on a dead-endstreet she did not see them. (9 RT 2120.) On June 7, 1998 Ms. Burkeattended a lineup at the Martinez jail. (9 RT 2126.) She failed to pick out appellant even though he wasin the lineup; she mistakenly identified another person. (9 RT 2127-2128; 2144.) Shelater learned that the personsheidentified was not appellant and that person wasnot involvedin the crime. (9 RT 2147, 2151.) Another witness similarly failed to identify appellant. Roger Parkinson,ofthe Lafayette School District maintenance department, testified that on March 24, 1998 heleft the school about 2:15. p.m. (9 RT 2155.) He was headed south on Happy Valley Road and saw three males walking north. (9 RT 2157.) They attracted his attention because they seemed out of place and weren’t part of the normal neighborhood pedestriantraffic. (9 RT 2159.) He focused on one man,the closest one, who had a tattoo on the left side of his neck. (9 RT 2162.) Mr. Parkinson got to within 20 or 25 feet of them. (9 -13- RT 2160.) He thought they were between 19 and 28 years old and the man with the tattoo wasthe oldest. (9 RT 2162.) Two ofthem were aboutthe same height, one wastaller. (9 RT 2163.) They woredark clothing, blue jeans, and probablya blue jacket. (9 RT 2164.) The man with the tattoo was white, the others were probably Hispanic, and the tattoo looked like a lightning bolt. (9 RT 2166.) He was shown a photo lineup but he never made a positive identification. (Jd.) Mr. Parkinson wasaskedin court to identify appellant but he could not, nor could he say whether appellant’s tattoo was similar to the one he saw on March24, 1998. (9 RT 2168.) Nathan Bunting testified that he was working on a telephone construction job on Happy Valley Road in Lafayette on March 24, 1998. (10 RT 2235.) He saw three males walking toward him “that looked kind of punky.” (10 RT 2237.) They didn’t seem tofit in with the neighborhood. (10 RT 2238.) Two were Hispanic and one was white and they were walking side- by-side. (10 RT 2238.) The youngest two were 17 or 18 and one wasin his mid-20s. (10 RT 2239.) The men were headed toward Rose Lane and as they passed, the white male said something like “how are you doing?” (10 RT 2242.) This person had a tattoo on his neck. (10 RT 2243.) On June 8, 1998, Mr. Bunting viewed a photo lineup and picked out appellant. (10 RT 2244-2245.) In court, he identified appellant as the man he -14- saw on the road andin the lineup. (10 RT 2246.)° However, when appellant wasasked to say “what’s up” in the courtroom, the witness was unsure: “I can’t be exact, butyes, he looks a lot like him.” (10 RT 2266.) Additionally, the witness did not recall telling the officer the tattoo was shaped like a shooting fireball or a lightning bolt. (10 RT 2255.) d) The forensic investigation did not connect appellant to the crime. No forensic evidence connected appellant to the crime, either at the victim’s house, in the victim’s vehicle, or on the alleged murder weapon. Richard Schorr, a criminalist with the Contra Costa Sheriff's Department, wascalled to 1253 Rose Lane in Lafayette on the evening ofMarch 24, 1998. (13 RT 2875.) There was no sign of forced entry into the house. (13 RT 2881.) Inthe garage, about eight partial shoe-prints were revealed by the static dust printlifter. (13 RT 2882.) Morepartial shoe-prints were found in the laundry room. (/d.) In the family room, a woman’s purse had been dumped on the floor. (13 RT 2886.) In the master bedroom,clothes and VHStapes were strewnonthe floor > However,the lineup identification was far from certain. Ted Anderson,a detective with the Contra Costa County Sheriff's Department, testified that Nathan Bunting did pick appellant from a photo lineup on June 8, 1998 (12 RT 2794-2799.) Mr. Bunting actually said “he’s the closest” but that qualification was not written in the detective’s report. (12 RT 2798.) -15- and some were broken. (13 RT 2892.) Clothes had been pulled outof the drawers anda speakernearthe entertainment center had been ripped out ofthe ceiling. (/d.) Another speaker had been taken down. The telephone cord was missing. (13 RT 2893.) There was a clump of head hair in the middle of the room. (/d.) The victim was lying toward the westwall. (13 RT 2894.) Her hands weretied behindher back and the telephone cord was wrapped around her neck. ( Jd.) There were bloodstain splatter marks below the light switch and on the wall. (13 RT 2900.) Steven Ojenatestified that he used to work in the Contra Costa County Sheriffs crime laboratory. (13 RT 2916-2919.) On March 24, 1998 he responded to a crime scenein the Fairfield/Cordelia areaat about 9:15 p.m. (13 RT 2919.) He attended the victim’s autopsy andidentified photosofthe victim. (13 RT 2922-2930.) She had stab woundsand ligature marks where the telephonecord hadbeen stretched around her neck. (13 RT 2921-2930.) One shoeprint could be connected to one suspect, Mr. Snyder, but Mr, Ojena was notable to say it was the exact shoe. (13 RT 2937-2938.) e) The police connect Maury O’Brien and Lee Snyder to the crime. Onthe day of the homicide,police officers received a lead that Maury O’Brien may have beeninvolvedin the crime, but they did not immediately follow up on it. On March 24, 1998, Justin Gregory, a Contra Costa -16- Sheriffs Departmentdetective, was called to the Solano Roofing Companyin Fairfield. (12 RT 2805.) The officer investigated nearby motels and at one of them, the Overnighter Motel, he was shownthe registration book. (12 RT 2815-2819.) He copied downthe names of guests on March 24", and among them was Maury O’Brien. (12 RT 2819, 2837.)° The Overnighter Motel was four-tenths of a mile from wherethe car was recovered. (12 RT 2820.)’ Almost three months elapsed before there was a follow-uponthis lead. Sgt. Rich Dussell, of the Contra Costa Sheriff's, testified that he received information from a woman named Nancy Wager around June 5, 1998. (4RT 3152.) Her son’s girlfriend knew a person who had someinformation onthe case. (/d.) As aresult ofthis information, Sgt. Dussell met with Nancy Wager in Cordelia on June 5, 1998. (14 RT 3156.) Lacy Harpe,the girlfriend (14 RT 3157), gavetheofficer the name Maury O’Brien. (14 RT 3 160.)® As Mr. 6 This was how Maury O’Brien’s namefirst cameupas a possible suspect. (12 RT 2837.) 7 Additionally, Kuldip S. Goraya,testified that in March of 1998 he was the part owner of the Overnighter in Fairfield. (10 RT 2328.) The police came byat the end of March and requestedall hotelreceipts. (10 RT 2329.) A person(later identified as Maury O’Brien) registered at the motel on March 24at 3:31 p.m. The room cost $24.15, with an additional $5.00 for the key deposit and $5.00 for the phone deposit. The full amount was $34.15. (10 RT 2330-2331.) 8 After the initial interview with Nancy Wager,the officer re- interviewed her and obtained some jewelry from her. (14 RT 3175.) Ms. Wagerhadobtainedit from her son’s girlfriend Lacy Harpe. (14 RT 3176.) -17- O’Brien’s name appeared onthe previously-obtainedlist ofpeople who stayed at the Overnighter Motel on March 24, he was now a prime suspect. Until talking to Ms. Harpe,the officers had no information about Mr. O’Brien, Mr. Snyder, or Mr. Perez. (14 RT 3210.) Sgt. Dussell then went to the Solano County Jail and interviewed Mr. O’Brien that night, June 5, 1998. (14 RT 3161.) Initially, Mr. O’Brien denied the homicide, but not for long. (14 RT 3162.)’ The officers then took Mr. O’Brienout ofthe jail and he directed them to the recovery of a knife which wasthe alleged murder weapon.( Jd.) Asa result ofthat interview,the police obtained a search warrant for an address on Guttenberg Avenue in San Francisco whose occupant was Lee Snyder. (14 RT 3165.) The police also obtained information about Jason Hart and they went to talk to him. (14 RT 3168.) Mr. Hart lied to them atfirst. 7d.) The officers told Mr. Hart that he wasfacing the death penalty. (14 RT 3194.) Theysaid they wantedto talk to him about a homicide that occurred in Lafayette about three months prior. (14 RT 3198.) Mr. Hart wasalsotold he could be charged as an accessory after the fact to the murder. (14 RT 3200.) During the ° Jn this first interview, O’Brien told the police that, in addition to himself, Snyder and a person O’Brien knew as “Rock” wereresponsible for the murder. O’Brien also told the police to find a person named Jason Hart, as he would know who “Rock” was. (11 RT 2520.) -18- questioning, the officers mentioned that “Rockhead was involved” and Mr. Hart told the officer that appellant was knownas “Joe Rockhead.” (14 RT 3207.) Until that time, the officers did not know who “Rockhead”or “Rock” was. (14 RT 3214.)'° Until the time they talked to Mr. Hart, all their information had come from Mr. O’Brien. (14 RT 3210.) Mr. Hart was eventually arrested (14 RT 3179) as an accessory to the crime. (14 RT 3189.) Justin Mabra,a 21-yearold resident ofFairfield, wasthe boyfriend of Megan McPhee whoalso knew Maury O’Brien. (10 RT 2334-2335.) Mr. Mabra and Mr. O’Brien attended the same middle school and went to Armijo High School together. (10 RT 2336.) In late March 1998, Mr. Mabra saw Mr. O’Brien by chance. (10 RT 2339.) O’Brien wasin a car outside Ms. McPhee’s house with two other people, one ofwhom was Mr. Snyder, whom Mr. O’Brien had notseen in about two years. (10 RT 2340.) Asit was cold, they all got in Mr. Mabra’s girlfriend’s car. The three others wereseatedin the back seat. (10 RT 2343.) Mr. Mabra did not know whothethird person was and wasnot introduced to him. (/d.) This third person waslater tentatively identified by Mr. Mabra as appellantat a live lineup at the Contra Costa 10 Appellant was arrested two dayslater, on June 7, 1998. (14 RT 3335.) -19- County Jail. (10 RT 2346-23 50.)'! Maury O’Brien askedfora ride either to San Franciscoor to Cordelia. (10 RT 2344.) Mr. Mabra denied knowing about plans to rob a drug dealer or that he went into the house to make phonecalls to reach the dealer the night he met with O’Brien and Snyder. (10 RT 2359.) Megan McPhee,a 23-year-old student,testified that Justin Mabra was her boyfriend. (10 RT 2386.) She also knew Maury O’Brien and Lee Snyder. (id.) In March 1998, she wasliving with Justin Mabrain his parent’s house. (10 RT 2388.) That month, she saw Mr. O’Brien and Mr. Snyder with a third person outside her mother’s house. (10 RT 2389.) Theyall got in the car and talked, Justin and Ms. McPheein the front and the other three in the back. (10 RT 2391.) She waspretty sure everyone in the car ingesteda line of cocaine. (10 RT 2394.) After the cocaine, Maury O’Brien asked for a ride to somewhere far away, but Ms. McPhee had to work the next day and they declined. (10 RT 2397.) That night, the three men wereeventually picked up by someonein a Cutlass. (10 RT 2410.) Ms. McPheewasinterviewedby the police in June of 1998. She was asked to makean identification and she picked O’Brien and Snyderout of a live lineup. (10 RT 2401.) 1! Mr. Mabra was somewhatunsureofthe identification as appellant was wearing a hat and his face was in darkness, so Mabraput a question mark next to appellant’s photo. (10 RT 2369.) -20- f) The testimony of co-defendant Maury O’Brien. With the lack of any forensic evidence tying appellantto the crime, the prosecution’s case rested heavily on the testimony of co-defendant Maury O’Brien, who was also charged with the murder ofMrs. Daher. (11 RT 2430.) Mr. O’Brien denied stabbing Mrs. Daher to death on March 24, 1998 but he admitted going into her house with the intent to rob the occupants andalso admitted responsibility for her death. (11 RT 2431.) He knew he wasfacing capital murder charges and possible execution, and by testifying, he was asking for consideration not to be executed. (11 RT 2432.) Mr. O’Brien testified that he knew Lee Snyder from the Fairfield neighborhood where both wereliving with their mothers. (11 RT 2433.) By March 1998, they wereliving together and they devised a plot to rob a drug dealer. (11 RT 2444, 2528.) The dealer lived in Davis but they were going to meet him in Fairfield. (/d.) His name was Sonny Sandu’? and he was known to carry a large amount ofmoney and drugs onhis person.(11 RT 2444-2445.) A mutualfriend, Jason Hart, was to purchase the drugs after the robbery but not participate in the robbery itself. (11 RT 2446.) Twoorthree days before the murder, Jason Hart introduced appellant '2 O’Brien later gave the dealer’s name as Sandeep Sandu. (11 RT 2527.) -21- to O’Brien as someone who might beinterested in the robbery. (/d.) At this time, O’Brien knew him only as “Rock.” (11 RT 2447.) O’Brien saw “Rock” every day in the twoor three days before the murder. (11 RT 2448.) They would buyat least $100 to $150 worth of cocaine every day. On March 24, 1998, when he awoke, O’Brieninitially did not plan to rob the dealer. (11 RT 2448.) But Jason Hart and “Rock” showed up unexpectedly andit was decided they would doit that day. (11 RT 2449.) They all had somecocaine that morning. (11 RT 2453.) The others were eager to rob the dealer, but Hart wouldnot give them a ride becausehe did not wantto be involvedin the robbery. (11 RT 2451.) No one else had a car so they decided to take the BARTtrain to Fairfield. (11 RT 2452.) Jason Hart dropped them off at the Balboa BART station. ( Jd.) They plannedto get off in Pleasant Hill or Walnut Creek but they first got off at Orinda to smokecigarettes. (11 RT 2454.) Snyder and “Rock” were looking out into the hills and everyone decided to rob a house instead of continuing onto Fairfield. (11 RT 2454.) From the BARTtrain, they saw that the houses werebig andfigured they would have somevaluables. (11 RT 2459.) O’Brien had previously robbed houses and taken TVs, VCRs and stereo equipment. (/d.) He assumed they would choose a house where no one was home. (11 RT 2460.) They consumed some more dopeat the -22- Orinda BARTstation, got back on,andthen off again at the Lafayette station. They started walking toward the hills. (11 RT 2454, 2458.) O’Brien had several knives on him and Snyder had a P-38, a 9- millimeter pistol. (11 RT 2461.) “Rock” was not armed and had no weapons. (11 RT 2462.) They walked shoulder to shoulder down the middle of the street. (11 RT 2463.) A ladytried to talk to them and wason hercell phone; O’Brien cussed her out andtold her to “get out of here.” (11 RT 2464.) The lady drove around and stopped hercarin the middleofthe street, lookingat them. This made O’Brien want to get out of the road. (11 RT 2464.) They turned off Happy Valley Road and saw a house with the garage door open. (11 RT 2466.) They wentin and “Rock”shut the garage door with a button. (/d.) Lee Snyder took out his gun and O’Brien entered the house through a doorin the garage. (11 RT 2267.) Snyder gave O’Brien the gun as he wastoo scared to enter with it. (/d.) The first thing they saw wasthe victim in the kitchen. (11 RT 2469.) O’Briensaid that this was arobbery. Thelady turned aroundandstarted to say something but “Rock” put his hand over her mouth,hit her on the head, and she went downonthe floor. (/d.) He punched her ontheside ofthe head and she curled up in ball. (d.) O’Brien went through the house to make sure no one else was there -23- while Snyder and “Rock” stayed with the lady. (11 RT 2470.) O’Brien then came back downstairs and held the gun on her while “Rock”and Snyder went | through the rooms. (11 RT 2471.) They found a blue laundry bag that they filled with various items. (/d.) All three were wearing gloves. (/d.) Snyder was “tweaking”or freaking out from the effect of the drugs. (11 RT 2474.) Whentheyhadbeenin the housefor fifteen minutes, O’Brien called out to the othersthat they should leave, and he accidentally used Lee Snyder’s name. (11 RT 2474.) “Rock” then said that O’Brien would have to kill the victim because O’Brien had revealed Snyder’s name. (11 RT 2475.) “Rock” came downstairs and askedthe lady where the good jewelry was, and she led them to a jewelry boxin the closet. (11 RT 2476.) At somepointthe victim was takenupstairs by Snyder and “Rock.” (11 RT 2478.) O’Brien stayed downstairs as a lookout. (11 RT 2479.) He heard noises and went upstairsto the large master bedroom. (11 RT 2480.) Snyder was pulling out a telephone cord and “Rock” was kneeling on the other side of the bed “maybe holding the victim down.” (11 RT 2481.) But Snyder could not see the victim from his vantage. (/d.) O’Brien went back downstairs looking for more thingsto steal and to keep a lookout. (11 RT 2482.) He then went back upstairs and saw Snyder throw a speaker at the victim and come over and get on top of her. (/d.) -24- O’Brien couldsee the victim’s legs sticking out from under the bed; she was lying on her stomach and not moving. (11 RT 2483.) The telephone cord was wrapped around the victim and Snyder and “Rock” were both pulling onit. (Id.) Snyder had his foot on the victim and “Rock” waspulling on the cord; the victim’s neck was bent backwards. (11 RT 2484.) O’Brien walked into the bathroom looking for morethingsto steal. (11 RT 2486.) He wastold to get a knife from the kitchen; “Rock”took it and stabbed the victim many times. (11 RT 2489.) Snyder ripped up a videotape as he thought they were being taped. (11 RT 2490.) Then they went downstairs and drove away in the victim’s car, a Mercedessports utility vehicle. (Ud; 11 RT 2491.) “Rock” handed O’Brien the knife and he folded it and put it in his pocket. (/d.) “Rock” drove, O’Brien wasin the front seat and Snyder wasin the rear. (11 RT 2492.) They headed towardsFairfield asall three still wanted to rob the drug dealer. (11 RT 2493.) They exited the freeway in Cordelia and wentto a cheap, raunchy motel called the Overnighter. (11 RT 2494.) O’Brien registered for the room. (11 RT 2495.) Then Snyder and “Rock”left to ditch the Mercedes. (Jd.) They were gone 15 or 20 minutes and whenthey returned,they all had a beer. O’Brien and Snyder consumed some cocaine andthen theytried to contact the drug dealer “Sonny.” (11 RT 2496.) -25- The bag taken from the house was dumpedonthe bed andthe loot divided up. (d.)'° They were unable to reach the drug dealer so they decided to walk to Fairfield. On the way, O’Brien threw the knife in the bushesas he crossed an overpass. (11 RT 2501.) They bought some sandwiches and walked to Mancus Park. (11 RT 2501.) There they met Justin Mabra and wentto his house, which was on the samestreet as the park. O’Brien wentinside and used the phoneto try to contact the dealer Sonny but wasnotsuccessful. (11 RT 2503.) Justin’s girlfriend Megan McPheewasthere too. (11 RT 2504.) They consumed somecocaine outside the house in Megan’s car. However, “Rock” did not use any cocaine. (/d.) They were at Justin Mabra’s house for about an hour. (11 RT 2506.) O’Brien asked Meganfora ride to San Franciscobutshe couldn’t comply because she had to work the next day. (11 RT 2505.) After leaving Justin Mabra’s house,theytried to retrieve the Mercedes SUV and headedto where “Rock” and Snyder hadleft it. (11 RT 2508.) They saw police cars with spotlights surrounding the vehicle, so theyjumped a fence and ran back to the hotel. (11 RT 2509.) “Rock”called Jason Hart who came '3- Someofthe stolen goods werelater located. Edward Griffith, of the Contra Costa Sheriff's Department, on June 7, 1998 participated in a search warrant of Lee Snyder’s housein San Francisco. (12 RT 2806.) In the kitchen, they found a bag ofjewelry and a Nintendo game taken from the victim’s house. (12 RT 2808.) -26- and picked them up.( Jd.) Jason was with an African-American rapper whose name was “Mac Shaun.” (11 RT 2510.) “Rock”told Jason about the murder and “Mac Shaun” wasupset because he was now an accomplice to murderor an accessory after the fact. (11 RT 2511.) All three weretrying to sell Jason Hart the jewelry on the way back. (11 RT 2512.) On June 5, 1998, O’Brien was interviewed at the Solano County jail, where he wasincarcerated for petty theft and a probation violation. (11 RT 2517.) He had been arrested for stealing a charity jar next to a cash register in a store. (11 RT 2556.) Someonehadtold the police that O’Brien was involved in the murder. (11 RT 2518.) Initially, O’Brien denied his and Snyder’s involvement. (/d.) But the more he was interviewed, the more information he revealed. (11 RT 2519.) He knewappellant only as “Rock” at that time. (/d.) O’Brien told the police to talk to Andrea Torresandto find Jason Hart as he would know who “Rock” was. (11 RT 2520.) In the first interview, O’Brien told the police that Snyder, “Rock” and himself were responsible for the murder. (/d.) O’Brien was arrested on June 5" for his involvementin this case. (11 RT 2521.) '4 O’Brien later told Lacy Harpe about what had happenedandthat he was involved in a murder. (11 RT 2516.) O’Brien also told someofhis friends, Rob, Jason and “Little Jay,” that he was involved in something serious that had been bothering him badly. (11 RT 2517.) -27- O’Brien admitted thatthe transcript ofhis interviewsdiffered from his trial testimony. (11 RT 2522.) He also admitted that his drug use has had permanent effects on his memory and personality, and that “sometimes my mind is confused and thinks unclearly.” (11 RT 2524.) O’Brien fancied himself a con artist and a manipulator. (11 RT 2532-2535.) Snyder and O’Brien’s combined criminalactivities brought in more than $5000 per month, about the same amount wasalso going out. (11 RT 2540-2548.) O’Brien admitted the robbery washis plan: “It was part of...my plan. I was making plans to go and rob people. That’s true.” (11 RT 2573.) O’Brien also admitted he told manylies to the police. (11 RT 2583.) He admitted that the State had given him a dealthat he might not be given the death penalty. (11 RT 2593- 2594.) He also claimed appellant had threatened him. (11 RT 2605-2607.) A transcript of Mr. O’Brien’s police interrogation was discussed and played for the jury. (13 RT 2989, 3034 et. seq.) In the tape recording, Mr. O’Brien changed from saying that “Rock” wasstrangling her to saying that Mr. Snyder wasstrangling her and said that Mr. Snyder played a greaterpart in it, that he was “pulling back the victim’s head and neck.” (13 RT 2990.) On anothertranscript, O’Brien said heis as guilty as the others. (13 RT31 16.) -28- g) Othertestimony. Jason Hart wasgrantedtransactional immunity for his testimonyifhe testified “fully and truthfully.” (12 RT 2637.) Hart had knownappellant his entire life, since they were kids. (12 RT 2662.) Appellant’s nickname was “Joe Rockhead” and Hart had sold him drugsin the past. (12 RT 2665-2667, 2702.) On March 23, 1998, Hart went to Lee Snyder’s house with appellant. (12 RT 2665.) Snyder and O’Brien wantedto go to Fairfield and rob someone Hart thought was a drug dealer. (12 RT 2668, 2705.) Hart just wanted to buy the stolen goods, not to be involved in the robbery. (12 RT 2669, 2727.) O’Brien and Snyderhad not metappellantbefore this and Hart introduced him as Joe. (12 RT 2670.) Appellant volunteered for the plan to rob the drug dealer as he was broke and needed some money.(12 RT 2671.) The next morning, March 24, 1998, Hart picked up appellant and they went to Snyder’s house at about 11 or 12. (12 RT 2674.) They sat around and smoked dope and talked aboutthe plan to rob the drug dealer. (12 RT 2676.) Hart was again askedfora ride to Fairfield and again he refused. (/d.) Hart and appellant drove aroundto find someoneto give them a ride but they were unsuccessful. (12 RT 2678.) They returned and Hart droppedthem offat the Balboa BARTstation. (/d.) -29- Later that day, appellant called Hart and asked to be picked up in Fairfield. (12 RT 2681.) Hart andhis friend Shawn droveto the Overnighter Motelin Fairfield. (12 RT 2681.) Hart pulled into the parkinglot and saw appellant with O’Brien and Snyder. (12 RT 2683.) Appellant said that instead of Fairfield they had gone to Lafayette and robbed a lady. (12 RT 2686.) Theyalso said that they tied her up and strangled her with a phone cord and that she was dead. Shawn said they were crazy and wanted to kick them out ofthe car. (Id.) Hart knew they had murdered someonebuthe still wanted the jewelry. (12 RT 2688.) Hart eventually bought two rings from appellant. (12 RT 2690,2692.) Hart then dropped appellant offat his cousin’s house. (12 RT 2691.) The police arrested Hart at his house on June 9, 1998. (12 RT 2706.) They said he was facing the death penalty. (12 RT 2713, 2741.) Hart admitted he did not know ifhetold the policethe truth, he just told them what they wanted to hear. (12 RT 2717.) Deshawn Dawson,(“Mac Shaun”) an African-American rapper and entertainer, testified that was with Jason Hart whenhepicked up three white guys in Fairfield. (12 RT 2647.) The two youngest ones were talking and bragging about stealing and robbing. (12 RT 2651.) Dawson got mad and yelled at them. (12 RT 2653.) -30- AndreaTorres, age 22,testified she first met Lee Snyder in mid-1996 and washis girlfriend. (12 RT 2756.) She had met Maury O’Brien once and she knew Jason Hart through her family. (12 RT 2762-2763.) She also knew someone named“Joseph Perez.” Torres had met him when she was 12 or 13, and heard him called “Joe Rock.” (12 RT 2764.) She saw Lee Snyder on March 27 when he pulled out a very large diamondring andtried to give it to her. (12 RT 2770-2773.) Torres asked him where he had gotten it and Snyder said “you don’t need to worry about that.” (12 RT 2775.) Anargumentand fight ensued. (12 RT 2776-2779.) She never saw Snyderafter that because he wasarrested. (12 RT 27 80.) Dennis Sweeney, a sergeant with the Contra Costa County Sheriff's Department, testified that on June 7, 1998, he conducted a live lineup involving appellant. (13 RT 2960.) Thepolice officers could not find five other inmates with tattoos on their neck, so they made everyone wear towels around their neck. (13 RT 2961.) They showedthelineup to three persons. Ms. McPhee madeanidentification and selected appellant.( Jd.) Mr. Mabra put a question mark by appellant’s photo. (13 RT 2962.) Kathleen Burke was also presentat the lineup but identified someone who wasnotappellant. (13 RT 2966.) On June 11, 1998, Sgt. Sweeny took Lee Snyder out of custody in -31- juvenile hall where he had been incarcerated since March 27, 1988. (13 RT 2962.) In searchinghis clothing, a gold necklace was found,as were several rings which wereidentified as coming from the Daher family. (13 RT 2963.) On June 15, Maury O’Brien waspicked up from the Solano County Jail. (/d.) 2) The defensecase at the guilt/innocence phase. Lacy Harpe, Maury O’Brien’s girlfriend, was called as a defense witness. (14 RT 3340.) O’Brien hadtalked to her about a murdercase before he wasarrested. (14 RT 3344.) Whenshetalked to the police, James Wager was hercurrent boyfriend whose mother was Nancy Wager. (14 RT 3345, 3354.) At that time, Ms. Harpe gave Nancy Wager some jewelry and Ms. Wagerlater gaveit to the police. Ms. Harpe had received the jewelry from Mr. O’Brien. (/d.) A couple ofdays after he gave her the jewelry, O’Briensaid thathe and Lee Snyder and another guy had gone inside an open garage into a lady’s house andkilled her for her car and $20. (14 RT 3346.) O’Brien said Harpe did not know thethird person involved. O’Briensaid that he wastelling her so that she would know what happened when he wentto jail. (14 RT 3347.) Ms. Harpe wasnot sure who O’Brien said strangledthe victim but he said that Lee Snyder stabbed the woman many times. (14 RT 3348.) O’Brien kept -32- changinghis story. /d.) Harpe was uncomfortable talking to the police and did nottell them that O’Brien had said Lee Snyder stabbed the lady. (14 RT 3350.) About nine monthsor a year later, a defense investigator talked to her. (14 RT 3351.) Harpetold the investigator that O’Brien had said that Lee Snyder stabbed the lady. (14 RT 3353.) O’Brien said that he was downstairs in the house and then wentupstairs to give Lee Snyder the knife. (14 RT 3358.) The only difference between what Harpetold the police and what she told the investigator was that O’Brien said Snyder asked for a knife and that he watched Snyderstab the victim. (14 RT 3377.) O’Brien said that Snyder and the other person killed her. (14 RT 3379.) When Harpe heard O’Brien’s story, she did not want to have anything more to do with him.( /d.) Sgt. Ken Whitlatch,ofthe Contra Costa County Sheriff's office, wrote areport about Nathan Bunting. (14 RT 3401.) There was a stipulation that the officer interviewed Nathan Bunting on March 26, 1998, and he drew a picture of a suspect with a tattoo on the right rear side of the subject’s neck. (14 RT 3401.) On October 16, 2001, the jury found appellant guilty on all counts: Count 1, murder, in violation ofPenal Code Section 187; Count2, the murder was committed while engaged in a robbery, a violation ofPenal Code Section -33- 211; Count3, first degree burglary, a violation ofPenal Code Section 459 and 460; and Count4, taking of a vehicle in violation of Vehicle Code Section 10851. (15 RT 3688-3689.) 3) The punishment phaseofthetrial: the State’s case. TheState’s case at the punishment phaserelied on five prior events:a) a 1992 robbery; b) an alleged rape incident that occurred in 1992 or 1993 involving another girlfriend of appellant; c) a street fight in 1994 involving appellant’s girlfriend; d) 1994 prison incidents; and e) a 1999 incident in the Contra CostaJail that involved no physicalinjuries to the jail personnel. Only one of these events involved a priorarrest. Victim impact testimony was also presented. a) The 1992 robbery. Regarding the 1992 robbery, Apolinario Campo,age 77 anda resident of the Philippines, testified that in 1992 he was living in San Francisco, on GenevaStreet. (16 RT 3887.) On August 15, 1992, he wastakingclothes to the Salvation Army. (16 RT 3912.) A man cameup, asked for money, and mugged Campo whenhe said he didn’t have any. (16 RT 3913.) The man, whom heidentified as appellant, hit him with a piece ofwood and broke his nose. (16 RT 3913-14.) Campo lost consciousness and his money was taken. 34. (16 RT 3915.) He got his wallet back that day, as it had been thrown on the ground. (16 RT 3920.) Ed Collins, a San Francisco police officer in 1992 also gave details of the crime. (17 RT 3936.) He received a call about an injured person on Geneva on August 15, 1992; he responded and saw Mr. Campo whosaid he had been robbed. (17 RT 3937.) b) The alleged rape incident in 1992 or 1993. AndreaTorrestestified that she first met appellant when she was 12 or 13 and living on Genevawithherparents. (17 RT 4044.) He cameto pick her up from school one day when she wasin the 7" Grade. (17 RT 4045.) Appellant had an ID that said he was 18 or 19. (17 RT 4046.) After they had met, one night he called and asked to come over. (17 RT 4047.) It was late at night and Torres’ father was working and her mother wasasleep. (17 RT 4047.) Torres let him in the back door. (17 RT 4048.) At first they watched TV and then moved toward her dad’s bedroom. (17 RT 4049.) They were kissing and fondling and shetookherpantsoff. (17 RT4049, 4066.) They were “almost engaging in intercourse, but we had not reachedthatpoint.” (17 RT 4050.) Torres told appellant she did not wantto have sex. (17 RT 4051.) The defendant pinned her arms back and penetrated her. (17 RT 4052, 4068.) Atsomepoint he stopped and by then Torres was crying. (17 RT 4052.) Eventually, she told her parents. (17 RT 4053.) -35- After that night, she got together with appellant again. He called to ask to come over. Her friends were there, hanging out. Then they wentinto another room and he raped her again. (17 RT 4053.) Even though they had sex againsther will, shestill liked him. (/d.) Appellant and Torresgot together another time, but they did not have sex that night. (17 RT 4055.) This happened in May of 1992 or 1993 when she wasonly 12. (17 RT 4058.) At that time, the police asked her to look at a line-up and she picked out appellant’s picture and her family wantedto prosecute. (17 RT 4058.) But she did not wantto testify as she had mixed feelings aboutthe situation. “First of all, I didn’t want to deal with it.” (17 RT 4074.) Oneothertime she voluntarily had sex with appellant. (17 RT 4087.) This third time, which occurred at her house, wasthe last time she saw him. (17 RT 4101.) c) The 1994street fight involving appellant’s girlfriend. AndreaSalcedo,appellant’s girlfriend andlater wife,testified that she first met appellant when she was 11 or 12. She was 27at the timeofthetrial. (17 RT 3993.) She married appellant when she was 20. (17 RT 3994.) On February 12, 1994, appellant showed up at her house. (17 RT 3998.) She knew that he had escaped from prison. (17 RT 3996.) Salcedo had forgotten she had invited another friend, Anthony Sandoval, over for -36- lunch. Ud.) Appellant answered the door when Sandovalarrived. (17 RT 4000.) Appellant and Salcedo asked Sandoval to leave but he wouldn’t. Appellantattacked Sandoval and chased him outside. (17 RT 4001.) Appellant then looked around her house and cameback outside carrying a rifle. (17 RT 4002.) Appellant pointed the rifle at Sandoval and chased him arounda car. (17 RT 4004.) Salcedo told Sandoval there were no bullets in the rifle. She tried to drive away but appellant caught up with her car andtried to drag her out. (17 RT 4007-4010.) Appellant threw her to the ground andtried to get the keys. (17 RT 4011.) Then thepolice arrived and appellant wasarrested. (17 RT 4019.) Anthony Sandoval wasa friend of Andrea Salcedo. (16 RT 3892.) They went out one night and she asked him to comeback the next day. He visited her at lunchtime. (16 RT 3893.) Sandoval knocked on her door, appellant answered, and said Andreadid not wantto see him. Ud.) Appellant told Sandovalto leave. ( Jd.) Sandoval told appellant to get her so that she could tell him herself. (16 RT 3894.) Appellant came back with a rifle and told Sandovalto “get out of here.” He chased Sandoval around a car, pointing the rifle at him. (16 RT 3895.) Appellant ran at him with the gun,usingit as aclub. (16 RT 3897.) When appellant rushed him, Sandoval beat him up. (16 -37- RT 3908.) The police arrived and appellant was arrested. (16 RT 3898.) Sandoval admitted to having been convicted ofa prior felony. (16 RT 3900.) Rick Voss, a San Mateopoliceofficer in February of 1994, responded to an incident of a man carrying arifle. (17 RT 4110.) He arrested appellant for the incident involving Salcedo and Sandoval. (17 RT 4111.) Salcedo told the officer that appellant had threatenedto kill Sandoval. (17 RT 4111.) The officer ran a record check on appellant and foundout that he had two no-bail warrants out for his arrest. (17 RT 4112.) People’s Exhibit 8, a copy of a conviction of appellant in San Mateo County for a felon in possession of a firearm, was admitted into evidence. (18 RT 4192.) People’s Exhibit 11, a prison commitmentfor robbery and another for felon in possession ofa firearm, was also admitted into evidence. (8 RT 4193.) d) The 1994 prison incidents. Robert Kramerwas a correctional officer at California Correctional Center in Susanville in May of 1994. (17 RT 3945.) He was watching a general population yard when he saw three individuals fighting: inmate Armenta, appellant and inmate Contreras. (17 RT 3947.) Appellant and Contraras were striking inmate Armenta. (17 RT 3948.) All three were throwing blows. (17 RT 3952.) He had norecollection of any injuries. (17 -38- RT 3955.)° Michael Mesa,a correctional officer at High Desert Prison,testified about an incident he observed on September 24, 1994. (19 RT 3958.) He was administering showers and wentto the cell of an inmate named Aragon. (17 RT 3959.) Appellant washis cellmate. (/d.) Aragon wascuffed through the door and then appellantstarted to hit Aragon with closedfists. (17 RT 3960.) Aragon went downand fell face down on the bunk and appellant kicked him. (17 RT 3961.) Appellant stopped the assault and was then cuffed. (17 RT 3962.) To assist the officers, appellant cameto the door and voluntarily knelt down. (17 RT 3965.) Harold Wagner, a correctional counselor with the California DepartmentofCorrectionstestified that in September of 1994 he was working at the California Correctional Center at Susanville, in the Lassen Unit. (17 RT 3970.) On September 24, 1994, the officer also observed the assault on inmate Aragon. (17 RT 3971-3972.) The officers were not injured and appellant did not hit them. (17 RT 3975.) Officer Wagner was not aware of what precipitated the altercation. After the incident, both inmates were 5 Edward Herrera, another correctional officer at Susanville, also testified about this incident. (17 RT 3990.) Appellant was interviewed and he said “Armenta hit Contreras...Contreras is mylittle homey and was scared, so I dealt with him.” (17 RT 3992.) -39- medically cleared and neither were taken to the infirmary. (17 RT 3976.) Officer Ricky Stone, a correctional officer at the California Correctional Center at Susanville, testified that on November 11, 1994, he was workingthe “ad-seg” (administrative segregation) yard ona catwalk. (17 RT 3980.) The officer observed a fight at 9:20 a.m. (17 RT 3982.) He saw inmate John Lira assaulted by appellant, who walked over and punched him. (17 RT 3983.) Stone yelled at appellant to stop but he didn’t. (d.) However,it was not unusualfor fights to occurat this prison. (17 RT 3988.) e) The 1999 Contra Costa Jail incident. Ken Westermann,a Contra Costa County deputy sheriff, was working as a jailer on October 12, 1999. (17 RT 4113.) Appellant was an inmate (17 RT 4114) who askedto see a mental health specialist. (17 RT 4115.) He was told he would haveto wait. (Id.) The officer went up to appellant’s cell and asked him if he had a written request. (17 RT 4117.) Appellant was again told he would have to wait and he then began kicking the door. (17 RT 4117- 4118.) The custody sergeant wascalled and told appellant he had to be taken out of his cell. (17 RT 4119.) Deputy Allen wentinto the cell and appellant said he was not “cuffing up.” (17 RT 4120.) Appellant struck the officer in the face with his left hand in a closedfist and then hit him again. Westermann then hit appellant in the mouth several times. (17 RT 4122.) Officer Allen -40- intervened and they were able to subdue appellant. (17 RT 4124.) Appellant washit 3 or 4 times in the face which caused somesuperficial bruising. (17 RT 4135.) Although Westermann waskicked by appellant, the officer did not rememberifhe was wearing shoes or soft rubber sandals. (17 RT 4145.) f) Victim impacttestimony. The victim’s daughters offered evidence regarding the loss of their mother. Lauren Daher, daughterofthe victim,testified that she was 15 when her mother died. (18 RT 4181.) She “was the kindest and most gentle and caring person I think I’ve ever met. The kind that would do anything for anyone.” (18 RT 4183.) They foughta lot, but still had a great relationship. (18 RT 4184.) Since her mother has been gone “It’s been the hardest thing I think I could ever even imagined. | have turned into the mom ofthe family.” (18 RT 4184.) Annie Daher, the victim’s younger daughter, was 12 when her mother died. (18 RT 4187.) She felt bad because she never appreciated her mother as muchas she should have. Her mother wasa strong role model and they loved each othera lot. (18 RT 4189.) Her mom never missed a gameor a horse show. (/d.) The State rested. (18 RT 4194.) 4) The defense case at the punishment phase. a) Rebuttal evidence regarding the 1999 Contra Costa Jail incident. -41- Carla Wilson, a nurse at the Contra Costa County Jail, testified she was working there on October 12, 1999. (18 RT 4196.) She observed appellant with scrapesonhis face and rednessto his right wrist. (18 RT 4202.) He wasgiven ice packsfor his right wrist and right shoulder. (18 RT 4205.) Larry Pasley, an inmate of the Contra Costa Jail, testified he was housed in D Module, C side in October of 1999. (18 RT 4212.) He remembered hearing a commotion onthe afternoon of October12, 1999. (18 RT 4213.) Pasley was in cell DC8 and appellant was in cell C1. (18 RT 4214.) Officer Westermann had been purposely taunting several inmates. (18 RT 4221.) Pasley pressedthe call button 4 or 5 times asking the officers to assist appellant. (/d.) A couple ofothercells also called and said that appellant needed to speak with the officers. (/d.) Pasley could see the whole module from his cell window. (18 RT 4222.) Several deputies wentto appellant’s cell and told him to “cuffup.” (8 RT 4223.) Then about 7 or 8 of them rushedinto his cell and Pasley heard loud thumping sounds. Westermann wasthefirst in. Appellant said “[qluit. You’re hurting me.” (/d.) Pasley heard sounds ofa scuffle and then heard appellant scream. (18 RT 4226.) Appellant wastaken out, and there wasa little blood on him and he was loud and upset. (18 RT 4227.) Pasley heard Westermannsay “Next time I will put you in the hospital.” (18 RT 4229.) -42- Later, Deputy Westermann asked Pasley to “shit bomb” appellant, which meant throwing feces on him. (18 RT 4226.) Westermann had a reputation for violence. (18 RT 4229.) Once, Westermann and another deputy hit Pasley on the head with handcuffs. (/d.) They also once “maced”Pasley and beat him badly after he said he was not going to cuff up. (18 RT 4230.) Timothy Allen testified he was working at the detention facility in the Contra Costa County jail on October 12, 1999. (18 RT 4254.) Appellant requested to see mental health personnel that day. (18 RT 4259.) Allen’s report stated the request was made at 4:40 p.m. Appellantstarted kicking the cell door. (18 RT 4266.) The officers wanted him to calm downand perhaps have mental health personnel talk to him. (18 RT 4271.) But at no timethat day did Allen makea call to mental health. (18 RT 4272.) Deputy Schiro unlocked the door to appellant’s cell. (18 RT 4273.) Appellant refused to cuff up. (/d.) Deputy Westermann asked appellant to cuffup twoor three times and then appellant stood up and slugged him in the face. (18 RT 4274.) Then Westermannpushed him back towardsthe bed and “started going at [appellant]...I intervened andalsostarted throwing punches too.” (18 RT 4275.) However, the deputies are not authorized to hit an inmate whohasrefused to “cuff up.” (18 RT 4285.) When shownpictures of the bruised appellant, Allen denied kicking -43- him in the head. But Allen admitted he may have caused someoftheinjuries in trying to subdue him. (18 RT 4286.) Allen admitted he hit appellant once in the face andin the legs or shoulder. (18 RT 4287.) This witness has had inmates file complaints against him for injuries, including an elderly inmate named Garcia. (18 RT 4288.) Dr. Walter Carr, a physician for County Health Services,testified that he wastreating medicalpatients at the Contra Costa Jail on October 21, 1999. (18 RT 4307.) On that date, he examined appellant. (18 RT 4308.) The doctor observed ecchymosis, bruising in the shoulder and lower backareas, which could be consistent with appellant having received an injury nine days previously. (18 RT 4310.) Bud Hazelkorn, a defenseinvestigator,testified he went to the county jail and photographed appellant, whohadbruisesonhis temple, forehead and cheekboneasa result ofthe cell extraction incident. (20 RT 4712-4715.) Phillip Kendrick was an inmate in the Martinez jail in October of 1999, on the C side of D module. (18 RT 4336.) He remembered appellant asking to talk to mental health personnel on October 12. (18 RT 4338.) WhenKendrick told the deputy that appellant needed assistance, he wastold it was not his business. (18 RT 4341.) Thefirst time the officers responded, Officer Westermann told appellant he would not get help until he calmed -44- down, “[s]o Joey calmed down.” (18 RT 4343.) Then Westermann came back and told appellant to cuff up but he would not. (/d.) The guardsthat responded were Westermann, Allen and Schwind. (/d.) The deputiestold appellant to cuff up at the door of the cell but he refused. (18 RT 4344.) Appellant wastalking to them respectfully, but he refused to cuffup. (18 RT 4346.) The officers yelled down to the control room to open the door, they went in, and Kendrick heard “scuffling.” (18 RT 4346.) He saw appellant’s legs go up and saw Allen doing something that looked like kicking. (/d.) Appellant screamed “I’m down, I’m down,” and when they brought him out of the cell, he wasall swollen up. (18 RT 4347.) Kendrick did notsee either officer actually hit appellant. (18 RT 4348.) The witness rememberedtelling the defense investigator that Westermannsaid “I’m going to fuck you up.” (18 RT 4349.) Kendrick had previously seen Officers Allen and Westermann beat inmates. (18 RT 4350.)’® b) Mitigating evidence regarding appellant’s family and background. '® Trino Garciatestified regarding an incident in March of 2001 whenhe wasarrested on for drinking in Pittsburgh, California, and brought to the Martinez jail. (18 RT 4369.) When he wasbeing processed into the jail, the officers pushed him to the floor and hehit his forehead andlost consciousness. (18 RT 4371.) This wasin Pittsburgh, California, and not at the Martinez jail. (18 RT 4375.) -45- FrankPerez, appellant’s uncle,’ was the brother of appellant’s father, Joseph Perez Sr.(“Big Joey”). (19 RT 4382.) Frank’s parents were Joseph Alouishes Perez and Elvira LaVerne, also known as BeeBee. (19 RT 4383.) Frank also had a sister named Debbie. (19 RT 4384.) Frank worked at the Golden Gate Fields race track and also as a longshoreman and a memberofthe Service Employees Union. (19 RT 4387.) His father, Joseph Alousihes Perez, was also a longshoreman in San Francisco who worked on the docks until he retired in 1976. (19 RT 4388.) Joseph Alousihes loved appellant, his grandson, but was not an honest man. (19 RT 4390.) At the age of 14, Frank workedas a “fence”for his father. (19 RT 4391.) Drug addicts would cometo the houseandsell stuffthey had stolen from stores and from the docks. (/d.) Appellant’s father, “Big Joey,” was involved with drugs. (19 RT 4392.) Whenappellant was a baby, Big Joey wasselling drugs, pills and marijuana. (19 RT 4406.) “There was always drug activity going on.” “It seemed to be a steady flow of people.” (19 RT 4407.) Big Joey became involved with heroin and used it until about six years prior to the trial. (19 RT 4393.) According to Frank Perez, appellant’s father was “a very bad person” who 17 Frank Perez will be referred to herein as “Frank” to avoid confusion with other members of the Perez family. -46- “did a lot of...things that I didn’t approve of,” he was a “terrible father,” and “never disciplined” appellant or taught him any morals. (19 RT 4393; 4401.) Once,in 1971 or 1972, Big Joey and Dolores left appellant sleeping in a hot car while the family went to the beach at Santa Cruz. (19 RT 4402-4404.) Franktried to rescue his brother Big Joey from drugs and begged him notto take heroin. (19 RT 4424.) Big Joey basically abandonedappellant. (19 RT 4424.) Although appellantplayed baseball, Big Joey was never aroundforthe games. (19 RT 4445.) Big Joey owed child support after he left Dolores, who was alwaystelling him he had to pay it. (/d.) Appellant’s mother, Dolores Bassillio, got pregnant with him when she and Big Joey were young. (19 RT 4399, 4414.) During her pregnancy, Dolores smoked marijuana and cigarettes. (19 RT 4400.) Dolores and Big Joey were not together for long and separated shortly after appellant was born. (19 RT 4401.) Dolores was not a very good mother. (19 RT 4423.) There was often no food in the house and she smokedcigarettes a lot. (/d.) Appellant’s grandmother, BeeBee, was violent. At Christmas time, she would take her children shoplifting and hide the stolen items in appellant’s stroller. (19 RT 4394.) They lived in the Excelsior District, a working class neighborhood in San Francisco. (19 RT 4395.) Appellantlived with BeeBee and his mother as a baby. (19 RT 4398.) When appellant wasstill a young -47- child, Big Joey and Dolores moved out of BeeBee’s house and relocated to South San Francisco. (19 RT 4405.) Whenappellant was8, in 1983, he returned to live with his uncle Frank Perez and his grandmother BeeBee who shared a house. (19 RT 4445.) Dolores brought appellant over and asked Frank’s motherif she could look after him for a week. (/d.) However,appellantstayed there until BeeBeedied. (Id.) Dolores had a second child by another father and essentially rejected appellant. (19 RT 4429-4431.) Appellant wanted to be with his mother and used to make excuses for her to Frank. (/d.) Big Joey wasin andout ofjail while Frank was living with appellant and BeeBee. (19 RT 4432.) Big Joey did not support his son and wasa drain on BeeBee. ( Jd.) Dolores also did not financially support her son even though Frank’s mother was not working and wasona fixed income. (19 RT 4433.) BeeBee loved appellant and gave him security. (/d.) Appellant also helped BeeBee because she was disabled and losing her eyesight. (19 RT 4434.) Appellant did well in school. He was a very smart boy and regularly played baseball and basketball. (19 RT 4435.) Frank and BeeBee would attend appellant’s games,but nothis father or his mother. (19 RT 4436.) However, when BeeBeedisciplined appellant, she was violent. She would pull his ear -A8- or spank him. (19 RT 4438.) BeeBee would also verbally abuse him. (/d.) ‘He waslike herlittle slave...” (19 RT 4339.) BeeBee was 54 whenshedied of a massive stroke. (19 RT 4441.) Her death greatly affected Appellant: “...it was like having a carpet pulled out from underneath you.” “He wascrying and showing emotion.” (19 RT 4443- 4444.) Frank asked his wife if they could take appellant, but she said she couldn’t do it as they had a new baby. (19 RT 4445.) After his grandmother died, appellant’s life changed and he stopped playing sports. (19 RT 4437.) Appellant then lived with Frank’s sister Lolita in Daly City. (19 RT 4449.) Soon, appellant’s mother came and stole him from Lolita. (19 RT 4450.) After this, Frank lost contact with appellant for several years. (19 RT 4451.) For a time after that, appellant was in foster homesin various places. (19 RT 4453.) Frank knew that appellant wassent to the California Youth Authority. (19 RT 4454.) Appellant wrote Frank from Stockton saying he wanted to changehis life. Frank responded and picked him up from the Sacramento detention center and took him home. (/d.) It wasthefirst time Frank had seen appellant in along time. (19 RT 4456.) Appellant lived with Frank for four months. He had his own room and Frank bought him clothes. (/d.) Appellant had changeda lot, he was now very organized, very neat, showed appreciation -49- and told Frank he loved him. (19 RT 4457.) Appellant went to work at the race track with Frank. (19 RT 4458.) At the track, appellant obtained a job as a janitor and hadto be at work at 3:00 a.m. which meant they had to get up at 1:45 a.m. (19 RT 4459.) Appellant started going out at night and would be exhausted whenit was time to go to work. (19 RT 4460.) Franktried to teach him how to do the job well, but appellant was dragging on the job. Soon appellant began to fail to show up for work. (19 RT 4461.) Appellant eventually quit the job at the race track and stopped living with his uncle and aunt. (19 RT 4462.) Later, Frank found out that appellant would sleep in the garageandthen goin the house and shower and sleep after Frank’s wife left. Appellant had noplaceto live. (19 RT 4462.) He had problems accepting limits. (19 RT 4473.) Frankagain lost contact with appellant. (19 RT 4463.) Appellant later wentto prison. (19 RT 4464.) Frank knewappellant wastaking crack cocaine and “his name was Rockhead” because he was using rock cocaine. (19 RT 4464.) After appellant wasreleased from prison, Frank got him a job but did not let appellant live with Frank’s family. (19 RT 4465.) This job involved taking inventory. Frank also bought appellanta car. (/d.) Frank wasthe boss but appellant “wasn’t doing what he was supposed to be doing.” (/d.) -50- Eventually, he lost that job too. Frank thought his efforts to help appellant were too late. (19 RT 4479.) Dolores Ashmore, appellant’s mother, first met Big Joey when she wasnineyears old. (19 RT 4487.) At 16, she became pregnant with appellant, dropped out of high school and got a job. (19 RT 4491.) WhenDolores found outshe was pregnant, she and Big Joey moved in with Big Joey’s mother, BeeBee. (19 RT 4493.) During Dolores’ pregnancy, she smoked marijuana andcigarettes (19 RT 4492). She also had two car accidents. (19 RT 4494.) After one ofthe accidents, Dolores was hospitalized because the baby’s heartbeat wasirregular. (19 RT 4495.) When Dolores was five and a half months pregnant, she was again hospitalized. (19 RT 4495.) Appellant was born on September1, 1971. (/d.) At this time, Big Joey wasusing drugson a daily basis. (19 RT 4498.) His drug use continued even when the baby waspresent. (/d.) Dolores and Big Joey would supplementtheir income from Big Joey’s longshoreman job by selling marijuana. (19 RT 4500.) Several people per day would cometo the house to purchase drugs. (19 RT 4502.) Appellant was in the house when these sales occurred and sometimesin the same room. (19 RT 4503.) Big Joey would ask appellant to pass marijuana joints to guests. (19 RT 4507.) Dolores occasionally asked appellant to take customers’ drugs outside to their 51- cars and retrieve the money. (19 RT 4510.) Big Joey and Dolores were married about a year and a half. (19 RT 4499.) Duringthis time, they livedin five to seven different residences. (/d.) Thelast place Doloreslived with appellant was in the Excelsior District with Big Joey’s sister Debbie. (/d.) Dolores tried to kill herself during the marriage, before appellant was one year old. (19 RT 4511.) She took some sleeping pills or Valium resulting in her hospitalization. (19 RT 4512.) Big Joey and Dolores’ marriage was hectic and chaotic, characterized by physical violence and emotionalabuse. (19 RT 4509.) Dolores eventually told Big Joey to move out. (19 RT 4513.) After he left, Dolores continued to use drugs in front ofherson. ( /d.) Big Joey did not pay any child support and his only contribution was the occasional purchase of school clothes or toys. (19 RT 4514.) Between kindergarten and eight years of age, appellant attendedthree or four schools. He repeated the first grade because of his frequent absences. (19 RT 4517.) Whenappellant wasfive and a halfyears old, Delores had anotherchild with a man named Ed Sosa. (19 RT 4515.) The child’s name was Marcus Sosa Bassillio. (/d.) Their relationship was goodat first but Sosa “fooled around”like Big Joey. (19 RT 4516.) Dolores was with Sosa for three and a half years. (19 RT 4517.) Near the end ofthis relationship, there was -52- domestic violence and as a result Dolores left with the kids. (19 RT 4519.) Appellant was eight when Dolores split up with Sosa. (19 RT 4520.) After this, she supported herself with a job as a waitress and sold drugsa couple of times per week. (/d.) Dolores eventually asked BeeBee to take appellant for six months (19 RT 4523)but he ended upstaying with her for two years. (/d.) Dolores told appellant he had to reside with his grandmother because there wasn’t enough room for all of them. However, Marcus remained with Dolores. (/d.) Doloresleft Sosa in late 1979 or January of 1980 and about six months later moved in with a man named Richard Rossi. (19 RT 4525.) He was a drug dealer who sold methamphetamine. (19 RT 4529.) Rossi’s three teenage daughters and dogs occupied a one-bedroom apartment. (19 RT 4525.) They soon movedinto a friend’s two- bedroom house, with his family of four. However, Rossi did notlike appellant. (19 RT 4526.) Dolores admitted she chose to be with Mr.Rossi over her son. At this time, Dolores was using meth and cocaine. (/d.) Whenappellant waseleven, Dolores and Richard Rossi werearrested for possession of drugs. (19 RT 4532.) Meth, cocaine, scales and cash were seized (/d.) and a large amount of methamphetamine and cocaine had been dealt from the house. (19 RT 4533.) -53- Assoon as Rossigotoutofjail he resumedselling drugs. (19 RT 4535.) Shortly thereafter, two men with guns broke into the house while appellant was there. (19 RT 4536.) One of the men put a gun to appellant’s head and they beat Rossi. Appellant and Dolores pleaded with the mennotto hurt them. (19 RT 4539.) They tied appellant and Dolores up and threw them onthe bed. (19 RT 4540.) The mensaid that if they moved or got up they would kill appellant. The mentold Rossi to open the safe and give them the money. (19 RT 4541.) Approximately one thousand dollars was stolen. (19 RT 4543.) Appellant wasterrified he was going to be killed. (19 RT 4546.) BeeBee died from a massive stroke when appellant was twelve. (19 RT 4549- 4550.) Appellant idolized his grandmother and would do anything for her. (19 RT 4551.) After her death, appellant lived with BeeBee’s daughter Lolita. (19 RT 4556.) Dolores stopped contributing to appellant’s support because Lolita received AFDC andfinancial aid for taking custody of him. (id.) Dolores moved back with her own mother and asked Lolita to take appellant back. (/d.) After about a month and a half, Dolores movedoutofher mother’s house and wentto a girlfriend’s house with her sons Marcus and appellant. (19 RT 4558.) That lasted only two weeks and then Dolores went to live with her brother Rick. (19 RT 4559.) Appellant was in the same school throughout these moves. Shortly thereafter, Dolores again moved back with 54. her mother. (/d.) Dolores stayed at her mother’s home for six to nine months (19 RT 4560) and she then wentto live with her brother Danny for three to six months. (19 RT 4561.) At this time, appellant was attending a new school, getting poor grades of “D”s and “F”s. (/d.) They thenlived in hotels for a month or two. (19 RT 4562.) Appellant began to run away,particularly after the death of his grandmother. (19 RT 4565-4566.) Once, Dolores received a house call from a social worker regarding child abuse. (19 RT 4567.) She learned that appellant was being abused by his step-grandfather Mike Wallace. Appellant had been missing for several days when Dolores wascontacted. (19 RT 4568.) Appellant never came home to live with her again. (19 RT 4570.) Child Protective Services filed a case and he was madea ward ofthe court. (19 RT 4570.) In 1986 appellant was sent to the California Youth Authority at age fifteen. (19 RT 4570.) Dolores could notvisit him often as she did not have acar. Marcus continuedto live with her. Eventually, she left Marcus with his aunt and uncle and Dolores moved to Mississippi with her current husband. (19 RT 4571.) Joseph A. (“Big Joey”) Perez, appellant’s father, testified that appellant’s grandfather, Joseph Alouishes Perez, was a longshoreman and -55- “fence” who boughtstolen goods from addicts and other longshoreman. (20 RT 4578-4581.) Big Joey began sniffing glue when he waseightor nine. (20 RT 4883.) At 12 or 13, Big Joey began using marijuana and alcohol. He would drink a couple of quarts of beer a day. Ud.) In junior high school, Big Joey used barbiturates and LSD. (20 RT 4884.) Hestarted using heroin when he was23 (20 RT 4585) and wasaddicted for 15 years, until he was 38. (20 RT 4586.) Big Joey was eventually spending up to $200 a day on heroin. (20 RT 4587.) To support his habit, he stole every day. (20 RT 4590.) Big Joey taught appellantto steal. (20 RT 4607.) Big Joey first met Dolores when he was five or six years old and became romantically involved with her when she was sixteen. (20 RT 4592.) Dolores becamepregnantwith appellant whenshe was eighteen and Big Joey and Dolores got married after appellant was born. (/d.) At that time, they were living with BeeBee, Big Joey’s mother. (20 RT 4593.) People often came to the houseto buy drugs. (20 RT 4594.) This continued for two years. (20 RT 4595.) Dolores smoked marijuana every day when she was pregnantand also used mescaline. (20 RT 4596.) Big Joey did nottry to stop her drug use. (/d.) Appellant was born on September 1, 1971. (20 RT 4606.) Dolores and Big Joey brought him hometo live with BeeBee. (20 RT 4607.) Big Joey -56- continuedto sell drugs and work as a longshoreman. ( Jd.) He would only work a couple ofdays a week andhis drug sales provided most ofthe family’s income. (20 RT 4609.) Dolores and Big Joey were together for five years. (/d.) Whenappellant would cry, Big Joey would blow marijuana smokeinto his face to help him sleep. (20 RT 4611.) Appellant would sometimesput the joint in his mouth and he used marijuanaas a toddler. (20 RT 4618-4619.) Whenappellantgot high, everyone would laugh. (20 RT 4620.) Big Joey sold cocaine, acid and mescaline (20 RT 4621) and taught appellant aboutselling drugs. (20 RT 4622.) Drug dealing was proposed as a possible employment option for appellant when he grew up. (20 RT 4624.) Big Joey nevertold appellant that drug dealing was wrong. (/d.) Big Joey made $200-300 a dayselling drugs, the primary source ofhis income. (20 RT 4625.) The drug sales continued for a couple of years until Big Joey split up with Dolores. (20 RT 4626.) They divorced in 1975 when appellant was four. (/d.) After the divorce, Mr. Perez becameaddicted to heroin andall his efforts were devoted to getting high. (20 RT 4627, 4638.) Oneyear, Big Joey useda stolen credit card to buy appellant Christmasgifts. (Id.) When appellant was sevenor eight years old, they smoked marijuana together (20 RT 4630-4634) and Big Joey would take his son to “shooting -57- galleries,” places where addicts buy and use heroin. (20 RT 4638.) Big Joey exposedappellantto criminalactivity by using him as a “point man” when he wasnine or ten. (20 RT 4643.) Appellant once woke Big Joey upto tell him there was a BMWparked onthestreet. (20 RT 4644.) Big Joey jumpedout of bed and got a screwdriver and told appellant to “keep pointat the corner”andifthe police came, to whistle. (20 RT 4645.) Big Joey used his son as a lookout morethan 50 times. (20 RT 4647.) During this time, Big Joey also supported himselfwith car burglaries. /d.) Hedid not provide any financial support for his son. (20 RT 4656.) During appellant’s childhood, Big Joey wasin prison four times: in 1984 and 1986for auto burglary; in 1987 and 1988for auto theft. (20 RT 4661.) He wasin prison from 1984 to 1988. (20 RT 4661.) From kindergarten throughthefifth grade appellant lived with BeeBee. (20 RT 4652.) Appellant did well there because she wasa strict disciplinarian, “like Hitler.” (20 RT 4654.) BeeBee was very physically abusive. (20 RT 4655.) BeeBee’s husband, David Lavern, whoalsolived in the homewith appellant, was a heroin addict and an alcoholic. (20 RT 4657.) When BeeBeedied, Big Joey could not care for his son because he was strung out on dope.(20 RT 4662.) Big Joey wanted appellantto live with his brother Frank because he thought Dolores would make a babysitter out of -58- appellant. (/d.) He taught appellant “to engagein criminal activity...and avoid the police.” (20 RT 4666.) Big Joey agreed he was not a good father. “He [appellant] just didn’t have a chance. That’s all. I can say he just didn’t have a chance.” “I don’t know what the hell I was thinking.” (20 RT 4667.) Big Joeytestified he knew Andrea Salcedo, appellant’s wife. (20 RT 4672.) Duringthe time appellant was married to her, Big Joey had a sexual relationship with her. (20 RT 4673.) This was when appellant wasin jail. The relationship lasted 18 months. (/d.) Big Joey did not want appellant to find out aboutit, but he finally told him aboutthe affair. (20 RT 4675.) Big Joey was awarethat appellant was sent to the California Youth Authority but did notvisit him there from 1986 to 1990. (20 RT 4681.) Deborah Perez, appellant’s aunt, testified that her parents, Joe Alouishes and BeeBee, were involved in criminal activity. (20 RT 4717.) Her father would steal merchandise from the docks and both parents would fence it. “She always had a hustle.” (/d.) BeeBee wasviolent anda strict disciplinarian. (20 RT 4718.) Deborah’s sisters were regularly beaten with broomsand other things. (20 RT 4719.) Deborah met Dolores in junior high school and introduced her to Big Joey. (20 RT 4712.) They became romantically involved and Dolores soon became pregnant. (20 RT 4721.) Dolores took mescaline, smoked weed, -59- drank wine and smokedcigarettes during her pregnancy with appellant. (20 RT 4722.) Frequent drug sales occurred at BeeBee’s house and both Deborah and Big Joeysold drugs. (20 RT 4724.) Big Joey stole car radios and dealt in stolen merchandise from the waterfront. (20 RT 4725.) When he wasa baby, appellant’s parents would sometimes blow marijuana smoke in his nose to get him to sleep. (20 RT 4726.) Asa little boy, appellant also smoked marijuana: “He grew up smoking weed.” (20 RT 4728.) “He wasin his crib whenhestarted...” “He’s always smoked weed, as far as I know.” (/d.) At thirteen or fourteen Deborah developed a drug problem and she graduated to heroin at age 17. She used heroin for 25 years. (20 RT 4732.) Atthe height ofher addiction, she was spending $200 a day on heroin. (20 RT 4734.) Deborah wouldsteal to support her habit. (20 RT 4735.) There was alwaysviolence in the house and the main perpetrator was her mother BeeBee. (20 RT 4737.) However, Deborah wasalso responsible for much of the violence whenshe lived with Dolores and appellant. (/d.) Whenappellant cameto live with BeeBee, he was“a straight F student” and “after my mother got him going to school and got him on routines, he became an honorrole student.” (20 RT 4740.) BeeBee madesure appellant did his homework and involved him with sports. (20 RT 4741.) BeeBee was -60- supportive but also abused him with beatings with whatever she could get her hands on. (20 RT 4742.) This occurred almost daily. (20 RT 4743.) BeeBee would also scream abuse at him and call him names. “Joey cleaned up the house...he was a little slave.” (20 RT 4743.) BeeBee had psychiatric problems, including nervous breakdowns, and wentto a psychiatrist for many years. (20 RT 4745.) While appellant wasliving there, Deborah wasusing heroin and dealing cocaine. (20 RT 4746.) Deborah, BeeBee and Big Joey all used heroin and sold drugs out ofthe house. (20 RT 4748.) Appellantlived with Deborahfor a short time when he wasabout eighteen. (20 RT 4757.)" Richard Rossi was broughtfrom state prisonto testify. (20 RT 4760.) He met Dolores when he was working as a musician at a restaurant. (/d.) They movedin together about six months later. (20 RT 4762.) Mr. Rossi lived with Dolores for two years and appellant only came over three or four times and spent the night once. (20 RT 4763.) Although Mr. Rossi’s two daughterslived with him,there would have been room for appellant. (20 RT 4764-4765.) One night when appellant was 18 Janice Duvauchelle, appellant’s second cousin,testified similarly that she remembered when appellant was living with his grandmother BeeBee. (21 RT 4825.) After BeeBee died, appellant went to live with Deborah andhis father. (21 RT 4827.) Appellant told Ms. Duvauchelle that appellant was having problemsat his mother’s house and she once called Child Protective Service about her concerns. (21 RT 4828.) -61- there, they were awakened by men with shotguns. (20 RT 4770.) The men tied up Dolores and appellant and beat Rossi. (20 RT 4770.) Appellant was nine at the time. (/d.) The men beat Mr. Rossi with the butt of the shotgun. (20 RT 4772.) After this incident, Dolores took appellant back to his grandmother. (20 RT 4775.) James Espinozatestified he had lived in the Excelsior District for thirty-nine years. (20 RT 4777.) It is a working-class neighborhood which has the highest per capita rates of teen pregnancy and incarcerated minors in San Francisco. (20 RT 4778.) In the 1980s, Mr. Espinoza was a social services provider working with parish sports programs, coaching soccer, baseball and basketball. (20 RT 4780.) He knew appellant from when he was seven or eight and coached him in baseball and soccer. (20 RT 4781). Appellant was a goodathlete and helped out with “things that [didn’t] even involve him.” (20 RT 4783-4785.) Appellant seemed close to his grandmother. (20 RT 4787.) Angelina Wallace, appellant’s maternal grandmother,testified that when appellant was about a yearold, she saw him with a bag ofmarijuana and becameangry with her daughter andappellant’s father. (21 RT 4802.) After that incident, they did not speak for a long time. (/d.) She lived just a few blocks away from them for aboutnine years. (21 RT 4803.) But even though -62- they were not speaking, she would babysit appellant. (/d.) After BeeBee died, appellant came to live with Ms. Wallace, her husband Mike Wallace and several of their children. (21 RT 4807.) The family was eventually evicted because there were too many peopleliving in the flat. (21 RT 4810.) Later, Dolores moved in with her again in a house on Manzanita Street in San Francisco. (21 RT 4811.) They lived together for four or five years. (21 RT 4812.) Angelina saw Mike Wallace beat appellant fouror five times. (21 RT 4815.) He punched appellantin the head or shoulders, pushed him around and verbally abused him. (21 RT 4818.) Appellant eventually ran away. (/d.) Thelast time he wasgoneforthree or four months. (21 RT 4819.) Since then, Ms. Wallace has hadlittle contact with appellant.( Jd.) Charla Gonzaleztestified that in 1985 she was an employee ofthe San Mateo County Child Protective Services. (21 RT 4834.) In March of 1985 appellant, who had been placedin protective custody, was referred to her. (21 RT 4836-4838.) She had information that he had been physically abused by his maternal step-grandfatherover a long period oftime. He had run away and wasrefusing to go back. (Jd.) Appellant, who was13 atthis time, looked well groomedand clean but“there was a sadness about him thatI noticed.” (21 RT 4840.) Appellant said that he had been frequently hit with a fist and a belt. -63- (21 RT 4841.) Ms. Gonzalez took him to the shelter care home of Pamela Gensburg in San Mateo for a short term foster placement. (21 RT 4842.) At this time, appellant’s father was incarcerated in Susanville State Prison. (21 RT 4843.) Appellant did not wantto go back to his mother’s house. (21 RT 4844.) Ms. Gonzalez interviewed appellant’s mother and determinedthat she wasnotable to protect appellant from the abuse. (/d.) The juvenile court allowed Ms. Gonzalez to keep appellant with Ms. Gensburg. (21 RT 4847.) Before he was dropped off, appellant wanted to visit a friend named Ricky,but appellant ran awayanddid not return to Pamela Gensburg’s home.(/d.) Five dayslater, his mothercalled saying that appellant was at her house. (21 RT 4849.) Ms. Gonzalez rememberedappellantas a break dancerwho wasathletic and did well in school. (/d.) However, appellant rapidly transformed into a runaway and truant. (21 RT 4850.) In her opinion, appellant ran away from his homein orderto protect himself. (21 RT 4853.) Lolita Gutierrez, appellant’s aunt, lived in her mother BeeBee’s house from the time she was twelve until the age of sixteen. (21 RT 4859- 4862.) Lolita had a bad relationship with BeeBee, who would “go off” for the slightest thing. (21 RT 4863.) BeeBee would beat her, drag her by the hair -64- “[a]nd it was just awful but I went throughthis almost every single day.” (21 RT 4863.) Joseph Alouishes, her stepfather, tried to protect Lolita from her mother. (21 RT 4865.) There wasalso a lot of violence between BeeBee and Joseph Alouishes. (21 RT 4866.) They fought often, sometimes with knives. Once he punchedherin the face. BeeBee brokeall his car windowswith a baseball bat. (/d.) Appellant did not have a warm andcaring relationship with his parents as “[t]hey werereally into themselves.” (21 RT 4868.) Appellant cameto live with Lolita’s mother BeeBee because Dolores’ boyfriend at the time did not get along with him. (21 RT 4869.) Appellant was aboutsix or seven when he cameto live with BeeBee. He lived there until BeeBee died when he was twelve. (/d.) Appellant helped her by doing chores, washing the dishes, and getting her coffee. (21 RT 4874.) After BeeBee’s death, appellant stayed in Lolita’s house for about a month. (21 RT 4876.) There wasa discussion as to where appellant could live, but staying with Dolores was not an option because ofher boyfriend. (21 RT 4877.) Appellant could not live with his father because of his drug addiction andirresponsibility. (21 RT 4878.) Lolita decided to take custody of appellant when he was twelve. (/d.) Appellant lived in their house less than three months. (21 RT 4880.) -65- He was despondentafter BeeBee’s death and kept repeating that he wanted to live with his mother. (21 RT 4881.) One day Dolores called and said she was going to take appellant back. (21 RT 4883.) During the time that appellant lived with Lolita, Dolores did not visit or provide financial support. ( Jd.) Lolita tried to talk Dolores out of taking appellant back. (21 RT 4884.) Lolita did notfeel it was a “healthy place” for appellant because they would not keep him on track (/d.) and she was concerned about drug dealing and illegal activities in the house. (21 RT 4886.) Lolita did not agree with appellant’s mother taking him back. (21 RT 4890.) “And to be quite frank with you, I hold her and my brother responsible for where we're at today.” (21 RT 4891.) In 1985 Lolita heard that appellant was in a safe house with Child Protective Services. (21 RT 4892.) Appellantbriefly returned to Lolita’s home in 1985 but stayed only a few weeks. (21 RT 4893.) He seemed very different and “wasn’t following the rules.” (21 RT 4894.) Lolita told him it was best that he leave. (/d.) Lolita was angry about the change in appellant and angry at Dolores. (21 RT 4896.) After that, Lolita lost contact with appellant and would see him only at family functions. (2! RT 4897.) Arlene Brueggeman, a San Mateo County probation officer in the juvenile division, had appellant in her caseload in 1985. (21 RT 4908.) He -66- had been accused of shoplifting a pair of pants from J. C. Penny’s in San Bruno. (21 RT 4910.) Ms. Brueggemantried to assess whether he should go back home on probation or whether he needed a special program. (/d.) After communicating with the family, she became awareof the abuse with his maternal step grandfather. (21 RT 4911.) The licensed foster mother, Lolita Gutierrez, contacted Ms. Brueggemanbut appellantdid not wantto live with Lolita becausehe felt she wastoo strict. (21 RT 4912.) Ms. Brueggeman was going to recommenda general placementorderto the court, whichis with a foster home ora relative. (21 RT 4913.) Ms. Brueggemanalsoreferred appellant for a mental health evaluation. (21 RT 4914) which was performedat Hillcrest, a juvenile mental health facility. (21 RT 4915.) Appellant presented as quite immature, younger than most of the kids on her caseload. (/d.) Appellant was.placed with Lolita for 12 days and then his aunt felt he “was out of her control.” The home supervisionofficerfelt appellant wasviolating his probation so he was brought back to Juvenile Hall. (/d.) The court ordered appellant released on home supervisionto his mother. (21 RT 4917.) Appellant then ran away and was missing for 19 days.(/d.) After another court date, appellant was sent to Stockton Children’s Home,a group home.(21 RT 4918.) -67- Ms. Brueggeman’s last recommendation to the court was on June7, 1985, for further counseling. (21 RT 4919.) Appellant was “very difficult to handle because ofhis immaturity.” He was “extremely immature and lacking in insight” and needed lot of close supervision. (/d.) Billie Lee Violette, a psychotherapist and psychoanalyst, worked at Hillcrest Mental Health Unit in 1985. (21 RT 4929.) Appellant’s case was referred to her by Ms. Brueggeman. (21 RT 4930.) Ms. Violette’s impression wasthat appellant came from “a pretty dysfunctional family in which he hadn’t been protected...” (21 RT 4931.) He also had two traumas. “One was an incident where he was tied up [and] the mother’s boyfriend was severely beaten.” The other traumawasthe death ofhis grandmother. “The impression I had wasthat he was different than a delinquently-oriented child.” (21 RT 4932.) However,appellant did well in school and sports while he lived with his grandmother BeeBee. “He seemedtorealize he wasin trouble and needed help.” (21 RT 4933.) Runaways were not uncommon amongthe youths shesupervised.(21 RT 4934.) She thought appellant ran away because he wasnot in a good situation with his mother and did not get along with his younger brother, whom he hadto babysit. (/d.) Ms. Violette also thought the running away was due to “a lack of external controls, and there was abusiveness in the home. In -68- other words, he wasn’t protected; but at the sametime, beaten.” (21 RT 4935.) She recommendedthat appellant be placed in a “controlling environment.” (21 RT 4936.) At this stage, appellant was not particularly delinquent and “(t]hat’s why I made the recommendationsthat I did.” (21 RT 4937.) Appellant also had problems with trust. He felt “that the psychiatrist that he had seen had violated his confidentiality.” She thought it indicated a distrust. “...] saw him at grave risk because of the history that he hadif he didn’t get the help that he needed.” (21 RT 4738.) “At that time I did not see him as a danger to the community.” (21 RT 4941.) Henry Nobles, a San Mateo County probationofficer, was assigned to the Camp GlenwoodJuvenile Facility in La Hondain 1986. (22 RT 4960.) Appellant had been committed there for four weeks because he had absconded from a youthemploymentproject. (22 RT 4961.) Appellant was charged and convicted ofan escape, a misdemeanor. (22 RT 4963.) In 1985, appellant was committed to the Children’s Homeof Stockton after stealing a pair of pants, a misdemeanor. He ran away after about three weeks. (22 RT 4964.) Appellant was then placed in Moss Beach Homes where he ran awayagain. (id.) In Decemberof 1985, appellant was placed in Natividad Boys Ranchin Salinas. He was allowed to go homefor a visit but didn’t return. (/d.) Appellant had been convicted of three non-violent misdemeanors when Mr. -69- Nobles saw his file. (22 RT 4965, 4985.) Mr. Nobles considered returning appellant to Camp Glenwood,butit was not a lockedfacility. (22 RT 4966.) The only other available locked facility was the California Youth Authority. Appellant was only fourteen at the time. (d.) Nobles had concernsabout this and madethe recommendation reluctantly due to appellant’s age. (22 RT 4967.) Mr. Noblesfelt appellant was salvageable. (22 RT 4968.) He had not committed any serious or violent offenses, was only fourteen, had weak parental guidance, and was Hispanic and smallin stature. Appellant would have to be a fighter to survive. (/d.) The court followed the CYA recommendation. (22 RT 4970.) Loretta Bassillio, appellant’s aunt,testified she was married to Dolores Bassillio’s brother Rick. (22 RT 4986.) She first met appellant when he was about thirteen, after his grandmother died. (22 RT 4987.) Appellant was a nice kid. (/d.) Then Ms. Bassillio lost contact with him until he was released from the CYA whenhe wasfifteen or sixteen. She decided to take appellant into her home. (22 RT 4988.) The Bassillios picked appellant up at the CYA and brought him to South San Francisco. (22 RT 4989.) Appellant wasdifferent, morestreetwise and harder. He had changeda lot. (/d.) -70- Appellant stayed in their home about a month. (22 RT 4990.) Ms. Bassillio enjoyed having him there. (/d.) Then the schooldistrict notified her that appellant had not been attending school, a condition of his probation. (Id.) When Ms. Bassillio told appellant he would have to be walked to school, he ran away. (22 RT 4991.) Appellant then lived with his father. (22 RT 4994.) Appellant would keep in contact by calling in. (/d.) His mother was always gone, “she was into partying and not coming home...” (22 RT 4996.) Whenappellant lived with Ms. Bassillio, his motheror father never came to see him,nor did they contribute to his support. (22 RT 4997.) Susan Frankel, an attorney in San Francisco,testified that she knew appellant when she volunteered in 1988 for a mentoring program called “Volunteers In Parole” (VIP) that matched attorneys with youths who had just been released from CYA. (22 RT 5001.) She met appellant in 1989 when he wasseventeen. (22 RT 5001.) Theyfirst met for lunch andthen again two weekslater. (22 RT 5002.) “He was very motivated at that time to get to know meand to develop a relationship andtry andstraighten outhislife.” (/d.) Ms. Frankellater learned that appellant had gone back to CYA. (22 RT 5003.) They corresponded. (/d.) The next time she saw him wasin late 1990 or early 1991. (22 RT 5004.) Frankel had started workat the San Francisco City Attorney’s Office. -71- Appellant contacted her. (/d.) She picked him upat his father’s apartment and they went to Chevy’s Restaurant. Appellant wanted to apply to San Francisco City College. (/d.) The next time Frankel saw him was about a year later when he was hospitalized. (22 RT 5005.) He seemed changed, harder, less innocent. This wasthelast time they saw face to face. (22 RT 5007.) At the time ofthe trial, Frankel still corresponded with appellant, about once a month. (22 RT 5007.) “He adored [his] grandmother...and her death was very devastating to him...Hefelt that that was a real turning pointin his life.” (22 RT 5022.) Eva Torreztestified that appellant wasplaced in her home because she was a foster mother for “CYA” boys recently paroled from the Youth Authority. (22 RT 5024.) There were fourorfive other “CYA boys”there at the time. (22 RT 5027.) Appellant shared a room with them. His parents did not visit him while he was there. (22 RT 5028.) He followed the program, “never got in any trouble” andtried to get along. (/d.) The other boys were intimidating. Appellant was19 at the time (22 RT 5031) and immature like most of the CYA boys. (22 RT 5034.) Gretchen White, a psychologist, was asked to “prepare a psycho-social history on Mr.Perez...in June of 2000.” (22 RT 5046.) She reviewed many records andinterviewed Perez family members. (22 RT 5047-5048.) “I found that Joey grew up in a family that was remarkablyunstable, criminogenic.” -72- (sic) It was “[a] family in which dissocial behavior was the norm.” (22 RT 5048.) There was dysfunction for two generations “on both sides of the family.” (22 RT 5049.) They wereextensively involved in criminalactivities. (22 RT 5049-5053.) Appellant’s parents were themselves both products of bad parenting. (22 RT 5038.) Dolores attempted suicide when appellant was seven months old. (22 RT 5059.) The parents separated when appellant was two. (/d.) He had experienceda lotof stress by the time he was twelve. (22 RT 5064.) “I believe that the key issuesfor Joey...was the attachmentto his two parents who were simply not there for him, simply psychologically abandoned him...” (/d) Despite her faults, BeeBee wasa stable caretaker. “This was probably Joey’s one good timein hislife...” (22 RT 5066.) He “never stopped hoping that he would beableto live with his mother.” (22 RT 5068.) BeeBee’s death - affected appellant greatly. (22 RT 5069.) “It had a devastating emotional impacton him,as well as a profoundeffect on his living circumstances.” (22 RT 5070.) “One of the things that happened is that he developed an unresolvedgrief reaction as a result of BeeBee’s death.” (22 RT 5071.) His life deteriorated after BeeBee’s death. (22 RT 5074.) Appellant is “not a typical delinquently oriented child, but rather a child who has been overwhelmed with chaos, violence and loss.” (22 RT -73- 5075.) He hada fear of being hurt again. (22 RT 5080.) Daniel Macallair, vice-president of Center on Juvenile and Criminal Justice, testified as a defense expert on juvenile detention facilities. (23 RT 5133-5138.) Research showsthat the California Youth Authority (CYA) actually contributes to delinquent behavior. (23 RT 5138.) There are a lack of programs, poor staff-inmate relationships, racial and ethnic tensions, overcrowding, and gang warfare. (23 RT 5139.) Appellant was in CYA from 1986 to 1992. (Id.) All five conditionsexistedat that time. (23 RT 5140.) In 1988, over 70 per cent were there for a violent offense or had a previous violent offense. (/d.) Appellant did not have a violent offense when sent there. (23 RT 5141.) CYA wasseverely overcrowded from 1987 to 1993. (Id.) The witness stated that appellant would be exposed “to violence on a regular basis.” (23 RT 5142.) Appellant was fourteen when he entered CYA in 1986, making him among the youngestin the system. (23 RT 5144.) Only three percent were committed at age fourteen, like appellant. (23 RT 5162.) The O.H. Close facility was designated for younger male wards. (23 RT 5148.) There was an informalinitiation where the wards would be asked if they want to join a gang,for protection. (23 RT 5150.) Ifa ward responded byfighting, he would be accepted into a gang. (23 RT 5151.) “Joining a gang in the Youth -74- Authority is considered essential for ensuring yourself protection.” (23 RT 5154.) The youths are under constant stress. (23 RT 5158.) This has psychological consequences“and the stress within theseliving units does have an impact on behavior.” (23 RT 5160.) Appellant was at O.H. Close in 1986 and returned there in 1988. (23 RT 5161.) This facility was designed to house 379 wards, but it held 523 in 1986 and in 1988, it held 546 whose average age was 17.5. There was approximately one contracted psychiatrist per 500 kids. (23 RT 5166.) Later, appellant was at the Holton and Preston facilities. (23 RT 5170.) Theseinstitutions were for older wards who tended to be more violent. (23 RT 5172.) Preston and Chino were considered “the most violent institutions within the system.” (23 RT 5173.) The violence at Preston was well known. (23 RT 5174.) ae At age 20, appellant was committed to the N.A. Chaddejerianfacility. (23 RT 5178.) It replaced Preston asthe institution for the most dangerous and delinquent youths. (Jd) Most of the youths there were committed for violent offenses and the median age was twenty-one. (23 RT 5179, 5205.) A large numberofyouths committed to CYA re-offend. (23 RT 5184.) Ninety percent were “rearrested after their release from the California Youth Authority.” ([d.) Appellant ran away from Natividad Ranch, Camp Glenwood, -75- and Moss Beach andthese were good programs. (23 RT 5194.) However,it’s “not unusual to have kids run from programs.” (/d.) 5) The prosecution’s rebuttal case at the penalty phase. Theprosecution presented several witnesses in an attemptto discredit defense witness Mr. Pasley’s observationsofthe Contra Costa County jail cell extraction incident. Scott Worthan, a sergeant with the sheriffs office, attended an administrative hearing on October 12, 1999 regarding this incident. (23 RT 5219.) Appellant did not say he was beaten or kicked. (23 RT 5221.) Patricia Ford, an inspector from the District Attorney’s office, attempted to show that Mr. Pasley could not have seen what he alleged regarding the cell extraction incident. (23 RT 5223-5227.) Jerry Sanchez, a Pittsburgh, CA police homicide investigator, also attempted to show the same thing. (23 RT 5241-5257.) On November 16, 2001, the jury reached a verdict of death. (24 RT 5540; 5 CT 1920-1922.) On January 25, 2002, a motion for a new trial was denied. (24 RT 5586.) A defense application for modification of the death sentence was also denied. (24 RT 5595.) The court found thatthe aggravating factors outweighed the mitigating ones andthe defendant had shown“no sense of wrongdoing or remorse.” (24 RT 5596.) -76- ARGUMENT 1 THE TRIAL COURT’S SYSTEM OF GROUP VOIR DIRE VIOLATED APPELLANT’S RIGHT TO DUE PROCESSANDA FAIR TRIAL. Appellant’s conviction and death sentence were unlawfully and unconstitutionally obtained in violation ofhis rights under the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution and corresponding provisions of the California Constitution because thetrial court’s jury selection system did not allow adequate time for voir dire of the prospective jurors to ensure appellant a fair and impartialjury. A. Introduction. The Sixth Amendmentto the United States Constitution states that “[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial,by an impartial jury of the State and districtwhereinthe crime shall have been committed... .” (U.S. Const., Amend. VI.) The Fourteenth Amendmentextendedthe right to an impartial jury to criminal defendants in all state criminal cases. (Duncan v. Louisiana (1968) 391 U.S. 145.) In addition, the Due Process Clauseofthe Fourteenth Amendmentindependently requires the impartiality of any jury empaneled to try a cause. (Morganv. Illinois (1992) 504 U.S. 719, 726.) The trial court’s actions deprived appellant of his right to a fair and -77- impartial jury and fair trial under the Fifth, Sixth, Eighth and Fourteenth Amendmentsto the United States Constitution, andarticle I, sections 15 and 16 of the California Constitution, as well as his Eighth and Fourteenth Amendment rights not to be condemned to death except on the basis of unbiased andreliable procedures. (United States v. Baldwin (9" Cir. 1983) 607 F.2d 1295, 1298; People v. Chapman (1993) 15 Cal.App.4th 136, 141. See also United States v. Saimiento-Rozo (5" Cir. 1982) 676 F.2d 146, 148.) Thetrial court’s failure to conduct adequate individual sequestered death qualification voir dire also violated appellant’s right under California law to individual juror voir dire where group voir dire is not practicable. (Covarrubias v. Superior Court (1998) 60 Cal.App.4th 1168, 1184.) “The conduct of voir dire is left to the broad discretion ofthe trial judge. The exercise of that discretion, however, is limited by ‘the essential demandsoffairness.’” (Knox v. Collins (5" Cir. 1991) 928 F.2d 657, 666 citing Aldridge v. United States (1931) 283 U.S. 308, 310.) B. Facts in Support. Jury selection began on September 12, 2001. (6 RT 1195.) Juror questionnaires were handed out. (6 RT 1312; the thirteen juror questionnaire volumesare designated as “JQ”.) The defense hadearlier made a motion for -78- sequestered voir dire '’ of the oral portion ofjury selection (5 RT 1068; 4 CT 1300-1327) which was denied. (5 RT 1069.) In that motion, defense counsel argued that the courts’s proposed system gave an inherent advantage to the prosecution (5 RT 1082; 4 CT 1305-1310); that it deprived appellant of a fair trial (4 CT 1305-1310); that it denied appellant equal protection (4 CT 1316- 1323); and that it denied appellant his right to effective counsel and due process. (4 CT 1323.) The court also denied the request by the defense to impanel twojuries (4 CT 1323-1328), one for each phaseofthetrial, holding that a unitary jury was proper. (5 RT 1082-1083.) A request for additional jury compensationin that same motion (4 CT 1330-1335) was also denied. (5 RT 1083.) Additionally, the court restricted each side’s questioning to a total of only one half-hour for each panel of 25 jurors. (7 RT 1440.) Defense objections tothis procedure werealso denied: (7 RT 1444.) -Thus, thecourt - limited the defense in its questioning to a little over one minute per juror. Even morerestrictively, the court indicated that it would not allow questioning of those prospective jurors who “are clearly going to be challenged for cause”...““You can not ask any questions of some of them, and so forth”... and “...no timewill be spent by you doing improper things such as '? So-called “Hovey”voir dire. (Hovey v. Superior Court (1980) 28 Cal.3d 1.) -79- instructing them on the law.” (7 RT 1444.) The court further stated that “with respect to the half-hour limitation on attorney questioning that J have indicated will be in order, for the entire panel that translates into about four hours of questioning that is available to you, for counsel. I determined that...is...more than enough time.” (7 RT 1441.) In making this ruling, the court stated that it was exercising its discretion pursuant to Penal Code Section 233. (7 RT 1442.) In objecting, defense counsel Linda Epley pointed outthat the court’s time limits would amount to only about one minute per prospective juror. (/d.) Lead defense counsel William Eganalso objected, stating that under Cal. Rule of Court 8.5 and the CodeofCivil Procedure that “you havethe right to examinetheentire panel before, and exercise all challenges ofcause before exercising peremptory challenges.” (7 RT 1443.) The court denied the defense objections, stating “fylour record is protected.” (7 RT 1444.) Defense counsel Egan then observed that “[a]gain, I wouldsay, allowing little over one minute perjuror is totally inadequate....Anyway,I think it’s wholly inadequate and arbitrary underthe statute.” (/d.) Additionally, the court did not allow any questionnaire-based stipulations as to certain jurors before the panel was brought in, which would have freed up more time for questioning the remaining jurors. (7 RT 1445.) -80- As a result, many jurors were questioned inadequately, especially regardingtheirattitudesto the death penalty. In general terms,this inadequacy is apparent from the record, which shows a remarkably short voir dire for a capital case. Not counting the excusedjurors, it commencedat 7 RT 1445 and ended at 8 RT 1939,less than twofull days, which also included discussions on various motions and exhibits unrelated to the voir dire. The little questioning which was allowed wasso clearly inadequate that reversal is required without any particularized showing of harm. (Covarrubias, supra, 60 Cal.App.4th at 1184.) If a particularized showingofprejudice is needed, there are troubling instances in the record where jurors changed their responses from the questionnaires and defense counsel could not inquire further because of the voirdirerestrictions. JurorNo.7-inthevoirdire wasJurorNo:2inthe final jury. (7 RT 1481.) This juror was asked abouttheir attitude toward the death penalty in question 101 where he/she says they have been against it but now opposesit “except in extreme cases.” (/d.; 1 JQ 125-126.) As to Question 120, the juror stated at voir dire that he/she could follow the law, which wasa shift in their position. (7 RT 1482; 1 JQ 129.) This juror was asked about theterrorist attack of September 11, 200] in New York, which occurred on the day immediately prior to jury selection. This juror -8]- knew 6 people in New York andas for the death penalty, “[cJertainly, [for] New York, OklahomaCity...Death is an option.” “I could probably struggle with that. It would be difficult.” (7 RT 1483.) In changing his questionnaire responses, this juror stated “J understand I need to follow the law, and I am confident I can do that.” (7 RT 1484.) Juror No. 11 in the voir dire was seated juror No. 4. (7 RT 1489.) This juror wrote that he believed that the criminal justice system madeit too hard for the police and prosecutorto convict people accused of a crime. Onhis questionnaire, thisjuror wrotethat “I’m sure there are circumstances where the system also impedesthepolice from doingtheir job.” (1 JQ 87.) He said that was“justacomment.” The court then suggested: “[a]nd you’re prepared to follow the law?” (7 RT 1491.) Juror No. 15 in the voir dire was seated as Juror No. 6. (7 RT 1497.) This juror knew people who workedinthe district attorney's office in Arizona (1 JQ 350), two of whom were now judges, and one was on the Court of Appeals. (7 RT 1497.) As to the burdenofproof,this juror believed “a good police officer would be moreinterested in the truth” than someone else. (7 RT 1498: 1 JQ 360.) This eventual juror was questioned for only two pages. Further examples ofprejudice are discussed in the nextsection ofthis issue. -82- C. Argument. i. The voir dire procedure violated appellant’s Constitutional rights to due process, trial by an impartial jury, effective assistance of counsel, and a reliable sentencing determination. A criminal defendant has federal andstate constitutional rights to trial by an impartial jury. (U.S. Const., 6" & 14" Amends.; Parker v. Gladden (1966) 385 U.S. 363; Duncanv. Louisiana (1968) 391 U.S. 145, 149; Morgan v. Illinois (1992) 504 U.S. 719, 726; Cal. Const, art. I, §§ 7, 15 & 16.) Whetherprospective capital jurors are impartial within the meaning ofthese rights is determined in part by their opinions regarding the death penalty. Prospective jurors whose views on the death penalty prevent or impairtheir ability to judge in accordance with the court’s instructions are not impartial and cannot constitutionally remain on a capital jury. (See generally, Wainwright v. Witt (1985) 469 U.S. 412;Witherspoonv. Illinois(1968) 391 U.S. 510; see also Morganv.Illinois, supra, 504 U.S. at 733-734; People v. Cummings (1993) 4 Cal.4th 1233, 1279.) Death qualification voir dire playsa critical role in ferreting out such bias and assuring the criminal defendant that his constitutional right to an impartial jury will be honored. (Morganv. Illinois, supra, 504 U.S.at 729.) Tothatextent, the right to an impartial jury mandatesvoir dire that adequately identifies those jurors whose views on the death penalty render them partial -83- and unqualified. (/d.) Anything less generates an unreasonable risk ofjuror partiality and violates due process. (Jd. at 735-736, 739; Turner v. Murray (1986) 476 U.S. 28, 37.) A trial court’s severe limitation on the time allotted for voir dire or insistence upon conducting the death qualification portion of voir dire in the presence of other jurors solely because it would save time necessarily creates such an unreasonablerisk. This Court has long recognized that exposure to the death qualification processcreates a substantial risk that jurors will be more likely to sentence a defendant to death. (People v. Hovey (1980) 28 Cal.3d 1, 74-75.) This Court also observed in Hovey: Giventhe frailty of humaninstitutions and the enormity ofthe jury’s decision to take or spare a life, trial courts must be especially vigilant to safeguard the neutrality, diversity and integrity of the jury to which society has entrusted the ultimate responsibility for life or death. (Id. at 81.) Whenjurorsstate their unequivocal opposition to the death penalty and are subsequently dismissed,the remaining jurors maybeless inclined to rely upon their own impartial attitudes about the death penalty when choosing betweenlife and death. (/d. at 74.) By the sametoken, “[j]urors exposed to the death qualification process may also become desensitized to the intimidating duty of determining whether another person shouldlive or die.” (Covarrubias v. Superior Court, supra, 60 Cal.App.4th at 1173.) “What was 84. initially regarded as an onerouschoice, inspiring caution and hesitation, may be more readily undertaken simply because of the repeated exposure to the idea oftaking a life.” (Hovey, supra, at 75.) Death qualification voir dire in the presence of other membersof the jury pane] may further cause jurors to mimic responsesthat appearto please the court, and to beless forthright and revealing in their responses. (/d. at 80, fn. 134.) Given the substantial risks created by exposure to the death qualification process, any restriction on individual and sequestered voir dire on death-qualifying issues,including that imposed by Code of Civil Procedure section 223 (which allows death qualification in the presence of other prospective jurors where practicable and abrogates this Court’s mandate that such voir dire be done individually and in sequestration (Hovey v. Superior Court,supra;28Cal.3datPeoplev.Waidla(2000)22 Cal.4th 690, 713))- cannot withstand constitutional principles of jury impartiality. (See, e.g., Morgany.Illinois, supra, 504 U.S.at 736,citing Turner v. Murray, supra, 476 USS. at 36 [““Therisk that . . . jurors [who were not impartial] may have been empaneled in this case and ‘infected petitioner’s capital sentencing [is] unacceptable in light of the ease with which that risk could have been minimized.’”’].) Nor can suchrestriction withstand Eighth Amendmentprinciples -85- mandating a needfor the heightenedreliability of death sentences. (See, e.g., California v. Ramos (1983) 463 U.S. 992, 998-999; Zantv. Stephens (1983) 462 U.S. 862, 884-885; Gardner v. Florida (1977) 430 U.S. 349, 357-358; Woodson v. North Carolina (1976) 428 U.S. 280, 305.) Likewise, because the right to an impartial jury guarantees adequate voir dire to identify unqualified jurors and providesufficient information to enable the defense to raise peremptory challenges (Morganv.Illinois, supra, 504 U.S. at 729; Rosales-Lopez v. United States (1981) 451 U.S. 182, 188), the negative influences of open death qualification voir dire violate the Sixth Amendment’s guarantee of effective assistance of counsel. Put simply, juror exposure to death qualification in the presence of otherjurors leads to doubtthat a convicted capital defendant was sentenced to death by a jury empaneled in compliance with constitutionally compelled impartiality principles. Such doubt requires reversal of appellant’s death sentence. (See, e.g., Morgan v. Illinois, supra, 504 U.S. at 739; Turner v. Murray, supra, 476 U.S.at 37.) Even assumingthat individual sequestered death qualification voir dire is not constitutionally compelled in a// capital cases, under the circumstances ofthis case,thetrial court’s severelimitation ofthe questioning andinsistence upon conductingthe death qualification portion of voir dire in the presence of -86- otherjurorsstill violated appellant’s constitutionalrights to an impartialjury, a reliable death verdict and due process of law. Thetrial court’s error also violated appellant’s constitutional right to equal protection ofthe law andhis federal due process protected statutory right to individual voir dire where group voir dire is impracticable. (See Hicks v. Oklahoma (1980) 447 US. 343, 346.) Here, allocating a little over a minute to examine each juror was plainly inadequate. ii. The trial court abused its discretion when it denied counsels’ request for individual sequestered voir dire. Code of Civil Procedure Section 223 veststrial courts with discretion to determine the feasibility of conducting voir dire in the presence of other jurors even in capital cases. (People v. Box (2000) 23 Cal.4th 1153, 1180; People v. Waidla, supra, 22 Cal.4th at 713; Covarrubias v. Superior Court, supra, 60 Cal.App.4th at 1184.) Under section 223, “[v]oir dire of any prospective jurors shall, where practicable, occurin the presence of the other jurorsin all criminal cases, including death penalty cases.” The proper exercise of a trial court’s discretion under Section 223 however, must balance competingpracticalities. (See, e.g., People v. Superior Court(Alvarez) (1997) 14 Cal.4th 968, 977[“[E]xercises of legal discretion mustbe... guided by legalprinciples and policies appropriateto the particular matter at issue.”].) This Court has recognizedthat individual sequestered voir -87- dire on death penalty issuesis the “most practical and effective procedure” to minimize the negative effects of the death qualification process. (Hovey v. Superior Court, supra, 28 Cal.3d at 80, 81.) Although thetrial court recognized that it had discretion to conduct either group or individual sequestered voir dire on death penalty issues (7 RT 1442), it simply denied without explanation the defense objections, stating “lyJour record is protected.” (7 RT 1444.) Thetrial court also denied without explanation the defense’s requestfor stipulations, which would have freed up more time for juror questioning. (7 RT 1445.) Rather than determining whether groupvoir dire waspracticable in the particular circumstances ofthis case, it refused to conductindividual, sequestered voir dire simply becauseit presumably determined that Code of Civil Procedure Section 223 overruled Hovey and such voir dire was no longer required. (/d.) Moreover, evenifthis Court concludesthat thetrial court did exercise proper discretion in denying Hoveyvoir dire,the trial court’s own comments show that it abused its discretion in making that decision. Indeed,thetrial court seemed to focus more uponthefact that Hovey voir dire was no longer required rather than engaging in a careful consideration ofthe practicability of large group voir dire as applied to appellant’s case. (e.g, 7 RT 1442.) (Covarrubias v. Superior Court, supra, 60 Cal.App.4th at 1183.) -88- To the extent the trial court was concerned solely with time, such consideration was inappropriate. “[A] court abusesits discretion if it dismisses a case, or strikes a sentencing allegation, solely ‘to accommodate judicial convenience or because of court congestion.’” (People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 531, quoting People v. Kessel (1976) 61 Cal.App.3d 322, 326.) It is an abuse of discretion and a denial of the defendant’s right to an impartial jury when a court places convenience above a capital defendant’s right to Hovey voir dire where group voir dire is impracticable. The record set forth above showsthatthe trial court simply failed to engage“in a careful considerationofthe practicability of . . . group voir dire as applied to [appellant’s] case.” (Covarrubias v. Superior Court, supra, 60 ~—CakApptrat1183.) Moreover, it summarilyrejected Hovey voi dire even———_—___ though this Court has recognized it as “[t]he most practical and effective procedure available to minimize the untowardeffects ofdeath-qualification[.]” (Hovey v. Superior Court, supra, 28 Cal.3d at 80.) In sum, the trial court’s decision does not amount to the kind of “reasoned judgment” this Court ascribes to the sound exercise of judicial discretion. (See People v. Superior Court (Alvarez), supra, 14 Cal.4th at 977.) Furthermore, the record showsthat, as result of the trial court’s denial -89- of sequestered voir dire, the entire jury venire was exposed to extremely prejudicial statements made by many ofthe prospective jurors during group voir dire relating to matters that would have been inadmissible at trial. The group venire was also needlessly exposed to improper attitudes toward the death penalty. For example, prospective juror Michael Bernard (No. 19) said that he wanted morejudgesto deal with the “crime wave.” (7 RT 1547; 2 JQ 487.) Theidea that the defendant does not have to present any evidence was “problematic” with him. (5 RT 1526.) Healso stated that “[i]f a person committed a crime, they should be punished without regard to mental health” (7 RT 1550; 2 JQ 498) and he would not consider psychiatric testimony. (7 RT 1551;2JQ 497.) Asheputit, “[c]rime equals punishment.” (/d.; 2 JQ 503.) Natalie Milanio thought that the death penalty should be imposed regardless ofthe defendant’s background ifhe was found guilty. (7 RT 1720; 2 JQ 737.) She gavethe impression thatit was properto ignore such evidenceandstated that “if a person commits a crime and he’s foundguilty, then he should receive the death penalty.” (7 RT 1721.) Prospective juror Jeffrey Maitlen stated that if appellant was found guilty, he would “adamantly press for the death penalty,” based on what he heard on television. (7 RT 1651; 4 JQ 1234.) He stuck to the term “press for the death penalty” even after being coaxed by the court to state that he would -90- “give it serious consideration.” (7 RT 1652.) Mr. Maitlen admitted he would draw inferencesifthe defendantdid nottake the stand (7 RT 1653; 4 JQ 1238) and that he wasbiased against social, mental health testimony. (7 RT 1654; 4 JQ 1242.) Whenhe was questioned by the attorneys, Mr. Maitlen again told the court that he would “adamantly” push for the death penalty (7 RT 1712) and he didn’t want to hear “excuses”like “I was beat as a child.” (7 RT 1713.) He admitted he had an improperbias against such evidence (7 RT 1714) and twice characterizedit as a “lame excuse.” (7 RT 1717, 1718.) The panel was also improperly exposedto publicity aboutthe case as a result of the group voir dire. Prospective juror Susan Branaganstated that if the defendants were found guilty, she wanted them “killed like they killed her” because “I knowallthe details.” (7 RT 1709; 4 JQ 1505.) She wrote on background. (7 RT 1711;4JQ 1515, 1520.) Prospective juror Sharon Brechtel stated that, based on whatshe had learned throughtrial-related publicity, she felt that appellant wasguilty and, as a result, she could not be impartial. (8 RT 1835; 7 JQ 2526-2527.) She added that there was “no way”she could set aside what she hadlearned aboutthe case. (8 RT 1837; 7 JQ 2527.) The panel was again informed aboutthe pre-trial publicity when prospective juror Mary Meredith stated that she was also not sure she could be fair because of what -9|- she had heard aboutthe case. (8 RT 1837.) George Herberger had heard the publicity, and,as a result, thought the defendant was guilty. (8 RT 1846.) He also felt that the defendant’s background wasirrelevant. (/d.) In his questionnaire, he checked every single box as “always” about possibilities as to whenthe death penalty should be applied. (8 RT 1849; 5 JQ 1757.) Had individual voir dire been conducted, the entire panel would not have heard these improper remarks based onprejudicial pre-trial publicity. It is evident, therefore,that the trial court’s failure to grant sequestered Hovey voir dire resulted in prospective and actual jurors alike hearing extremely prejudicial matters relating to jurors’: (1) views mandating the death penalty for anyone found guilty of murder; (2) beliefs that mitigating evidence is of no moment and should be disregarded; (3) views about unfavorablepre-trial publicity indicating that appellant was guilty; (4) views about life-sentenced individuals being paroled; (5) viewsthat the defendant either should or hadto take the stand andthat unfavorable inferences could be drawnif hedid not; and (6) belief that a disadvantaged childhood background was just a lame excuse for murder. These views were heard byjurors who actually served on appellant’s jury. This Court should vacate appellant’s death verdict because the State cannot prove beyond a reasonable doubtthatthetrial court’s error did not contribute to the verdict obtained. (Chapman v. -92- California (1967) 399 US. 18, 24.) IL. LEAD DEFENSE COUNSEL HAD A_ CONFLICT OF INTEREST, AS THE TRIAL JUDGE HAD FOUND HIM INEFFECTIVE IN A CASE PENDING IN THE COURT OF APPEALS. Appellant’s conviction, death sentence, and confinementare unlawful and were obtainedin violation of his rights under the Due Process Clause of the Fifth Amendment, the Assistance of Counsel Clause of the Sixth Amendment, the Cruel and Unusual Punishment Clause of the Eighth Amendment, and the Due Process, Equal Protection, and Privileges and Immunities Clauses of the Fourteenth Amendment, as well as his correspondingrights underarticle I, sections 7, 8, 15, and 17 of the California Constitution, because he was deprived of his right to counsel free from debilitating conflicts of interest. A. Facts in Support. Trial counsel Mr. Egan had a conflict of interest becausethetrial judge had found him to haverendered ineffective assistance of counselin a casethat was currently pending on appealat the time of appellant’s trial, and Mr. Egan failed to file a motion for his recusal under Penal Code Section 170.6.”° The 20 Mr. Egandid file a motion to disqualify Judge Spinetta on different grounds: that he had madestatementsindicating he thought -93- outcome of this appeal could have had serious implications for Mr. Egan’s career, as all instances ofa final finding of ineffective assistance of counsel haveto be reported to the California State Bar by the court.*’ With this threat hanging overhis career, Mr. Egan should havefiled a recusal motion because, as Judge Spinetta himself acknowledged, people might later say “Mr. Egan might have had to make decisionsin this case, People v. Perez, with an eye towards what effect it might have on...anybody who’s investigating the matter.” (3 RT 613.) Judge Spinetta also pointed out that Mr. Egan should have filed the recusal motion because “he may have felt he had to conductit [this case] in a certain way becauseit might impact the waythe judge handles that situation [the other case].” Ud.) On November 5, 1999,appellant’s case wasassigned to Judge Norman Spinetta by Judge Mark Simons. (3 RT 600.) Onthat date, there was an ex parte discussion, out ofthe presenceofthe district attorney or appellant, as to whetherthe defense attorneys felt comfortable trying the casein front ofJudge appellant was guilty. (4 CT 1135-1183.) This separate issueis discussed in the following claim. These twoissuesare interrelated. 21 California Business and Professions Code section 6086.7(a)(2) provides: “A court shall notify the State Bar of any of the following: ..(2) Whenever a modification or reversal of a judgmentin a judicial proceedingis based in whole or in part on the misconduct, incompetent representation, or willful misrepresentation of an attorney.” -94- Spinettain light ofhis ruling in People v. Eldridge (Sept. 20, 2002)[2002 WL 31103022 (Cal. App.1 Dist.)]. (3 RT 602.) In Eldridge, Mr. Egan wastrial counsel, the jury found Eldridge guilty, and a motion for a new trial had been granted by Judge Spinetta. (/d.) That motion waspartly based on the ground of ineffective assistance of counsel. At the time of appellant’s trial, it had been pending on appeal for about two years. (/d.) Judge Spinetta told Mr. Eganthat Theruling...would have no impact on me whatsoeverin how I view youroverall performance as an attorney and my contacts with you...” The cumulative effect...led to a situation where I felt...the jury in that case was not given an opportunity to consider anyreal substantive issues...it appeared to me that she had no defenseleft. (3 RT 603.) Judge Spinetta added that “[{b]ut if you’re wondering whether as a inimicalto yourclient or you, the answerto that is an unequivocal no.” (3 RT 604.) He also commentedthat this case [E/dridge] has had “somepublicity.” (/d.) Judge Spinetta stated that he had “no problems” with either Mr. Egan ordistrict attorney Paul Sequeira. (3 RT 605.) He observed that the court of appeals may rule there were strategic reasons for counsel’s actions, and hold that he should not have granted the motion for a new trial. Judge Spinetta -95- added “{a]nd to be honest with you,I viewedit [the E/dridge case] almost not so muchas an ineffective assistance of counsel case as a due process case. AndI think I stated somethingto that effect when I announcedthe decision.” (3 RT 605.) Mr. Eganat first claimed that the ineffective assistance of counsel issues were not discussed by appellate counsel in the Eldridge case. (3 RT 606.)* However, appellate counsel, a Ms. Blair, was apparently having second thoughts and was wondering whethershe should have subpoenaed Mr. Egan and developed the record. (3 RT 607.) In their briefs, the prosecution asked for a hearing on the ineffective assistance of counsel issue. Mr. Egan found out about it from a reporter’s phonecall. Ud.) As to the importance which he put on the matter, he stated that “...this whole thing is definitely the worst thing that’s ever happened to me in my career” but “...’m pastit. But it’s still there.” (3 RT 608)(emphasis added). He added that “the whole reason I’m doing it [having this conversation] is I don’t wantto file a [motion under Penal Code] 170.6.”” Id.) Judge Spinetta said that he was “comfortable” with Mr. Egan, adding *2 This was incorrect. These issues were discussed in the opinion. See People v. Eldridge (Sept. 20, 2002) [2002 WL 31103022] (Cal. App.1 Dist.) 3 A motion under Penal Code 170.6 is a motion to disqualify the judge. -96- that “...on a personallevel I’m sorry that it caused you so much pain. And you’re sayingthat it has.” (3 RT 608.) Andagain,“... I’m sorry it caused you personal pain...1 do not feel anything derogatory or negative about your professional competency.” (/d.) Mr. Eganthenstated that if the court of appeal upheld the motion for a newtrial, Judge Spinetta would be “‘compelled to report my incompetence to the state bar.” (3 RT 610.) Judge Spinetta responded, “[t]o the extent I’m obligated to doit, J would be obligated to do it.” Although Judge Spinetta had never done it before, “I’m not clear that I have to do anything more than simply file a generalized report.” (3 RT 611.) Mr. Egansaid the judge might have to exercise his own judgment. Howeverifthe State Bar contacted him, Judge Spinetta said that “it would all have to be deferred until the conclusion of the trial”) Then Judge Spinetta stated that he “didn’t see any problems.” Mr. Egan added, “I think we could deal with it.” (3 RT 612.) However, ifhe had to report Mr. Eganto thestate bar, Judge Spinetta said that it might put him in a situation “where people might say ‘Mr. Egan might have had to make decisions in this case, People v. Perez, with an eye towards what effectit might have on what the Judge says to anybody who’s investigating the matter.’” (3 RT 613.) He added, “Conceivably then someone would argue -97- downtheline, ‘Mr. Egan wasin a conflict situation trying the case in front of this judge because he may have felt he had to conductit in a certain way becauseit might impact the waythe judge handles thatsituation.”” (/d.) The court also stated that it “could be the appearance of a conflict type of situation.” (Id.)** Mr. Egan,in referring to the possible state bar action, said, somewhat enigmatically, “they could do whatever they want to me...but that’s not really true.” (3 RT 614.) Judge Spinetta then got to the point of the dilemma and stated it accurately and succinctly: “Really, the question is should you beput in a position oftrying a case in front of a judge who maybecalled uponto make comments about you in connection with this other matter. That’s the question.” (3 RT 614.) He suggested discussing it with appellant. (/d.) Mr. Egan pointed out that his personal preference was to have the case tried by Judge Spinetta: “[a]nd my desire, whetherornot it has any bearing on anything,is to have the casestay here.” (3 RT 615.) The court then observed that “we need the client and the DA here” because “down the line somebody will say it shouldn’t have proceededin that department, giventhe situationthat Mr. Egan and Judge Spinetta were in at that time because of the Eldridge 4 At this point, Mr. Eganstated that appellant’s case will be “the last case I try, because I’m intending toretire.” (3 RT 613.) -98- conflict. Then everything is for naught.” (3 RT 615.) On November 10, 1999, there was further discussion regarding the effect of the pending Eldridge case and the advisability of defense counsel filing a motion under Penal Code 170.6. (3 RT 620 et. seg.) Judge Spinetta stated that “[i]fthe Court ofAppeals affirms my decision...] may haveto report it, and there may be an investigation in the matter.” (3 RT 622.) He did not think he was “obligated by the statute to report it, and I have not done so.” (Id.) The court noted that Government Code Section 6086.7 specifies when the court has to report to the State Bar. Subdivision (b) says “a reversal of judgmentbased upon incompetency of counsel.” (/d.) Then the court engaged in some rather strained reasoning: “I concluded that an incompetency of counselor ineffective assistance of counsel claim, does not constitute reversal with performance of counsel. I had vacated the original judgment.” (3 RT 622.) In the Eldridge case, the defendant Ms. Eldridge had been sentenced to two years. (3 RT 623.) Judge Spinetta vacated the judgmentand rescheduled it for sentencing. New counsel brought a motion which wasultimately granted. “So from my perspective, there was no judgment pending. I granted the motion for a newtrial at the time that there was no judgment. So there’s no reversal ofjudgment.” (/d.) -99- Judge Spinetta stated that he had run it by “Jessie” and the “legal research people”andthey agreed. (3 RT 624.) However,“it strikes me some - peopledointerpret that section as imposing an obligation ofa trial court to report reversals of verdicts as opposed to judgments.” (/d.) But“I don’t buy it at the moment. That’s why I’ve neverreported this matter, and don’t intend to report this matter. BecauseI don’t feel it is within the call of Government Code Section 6086.7 (b).” (Id.)” B. Argument. Both the United States Constitution and the state constitution guarantee a defendantthe right to counsel unburdened by conflicts of interests. (U.S. Const., Amend.VI; Cal. Const., art. I, section 15; Wood v. Georgia (1981) 450 5 The First District Court of Appeals on September 20, 2002 ultimately agreed with Judge Spinetta and held that Mr. Egan had rendered ineffective assistance of counsel in Eldridge, and that “the failure of the defense to offer any medical explanation wassufficiently prejudicial to undermine our confidence in the outcome.” (Eldridge, supra, 2002 WL 31103022 at *22.) The opinion contains a lengthy discussion of the facts surrounding the ineffective assistance and Judge Spinetta’s findings that were highly critical of Mr. Egan’s performancein that case. (Eldridge, at *7-*22.) Amongother holdings, Judge Spinetta “found that Egan’s principal error washis failure to call an expert medical witness on defendant’s behalf’ when the “outcome dependsalmost entirely on whether there is a medical explanation for the conditions of the alleged victims...” (Id. at *10.) Judge Spinetta also stated that Egan’s decision had “a disastrous two-fold effect” (/d.) andit left “the People’s witnesses and case virtually unscathed and defendant’s case seriously wanting of any evidence likely to move the jurors” and “so impoverished[the defense case] thatits exclusion could notbe justified...” Ud. at *11.) -100- U.S. 261, 271; People v. Bonin (1989) 47 Cal.3d 808, 833.) For purposes of conflict analysis, it is irrelevant whether counsel wasretained or appointed. (People v. Bonin, supra, at 834.) “It is settled that an indigent charged with committing a criminal offenseis entitled to legal assistance unimpaired bythe influence ofconflicting interests.” (People v. Rhodes (1974) Cal.3d 180, 183.) The legal analysis of situations in which counsel is burdened by a conflict of interest may be affected by whether the conflict was “actual”or merely “potential.” In order to show violation of the Sixth Amendmentof the United States Constitution, a defendant whoraised no objectionattrial must show that his counsel was burdened by an “actual” conflict of interest andthat the conflict adversely affected the representation. (Cuyler v. Sullivan (1980) 446 U.S. 335, 348.) Once this showing has been made, the courts will defendantwill be entitled to relief without any further showing. (/d. at 349.) By contrast, under the California Constitution, “even a potential conflict may require reversal if the record supports ‘an informed speculation’ that appellant's right to effective representation wasprejudicially affected. Proof of an ‘actual conflict’ is not required.” (People v. Mroczko (1983) 35 Cal.3d 86, 105.) Like the federal“actual conflict”rule, this rule is applied even in the absence of any objection at trial. (/d.) -101- The U.S. Supreme Court’s definition of the term “actual conflict” has been described as “rather vague.” (Beets v. Collins (5Cir. 1999) 65 F.3d 1258, 1265.) However,it seemsclear that an “actual”conflict will be deemed to exist when an attorney “actively represents adverse interests.” (/d., citing Cuyler v. Sullivan, supra, at 348.) The term “potential conflict” appears to be defined for California purposes by means of this Court’s “informed speculation” rule. (People v. Mroczko, supra, at 105.) Thus, a potential conflict exists if an informed speculation suggests that the defendant’s right to effective representation was prejudicially affected Anattorney has a duty to represent his or her client with “undivided loyalty and effort” and his representation becomes deficient if a conflict deprives the client of this loyalty and effort. (Maxwell v. Superior Court (1982) 30 Cal.3d 606, 612, Wood v. Georgia, supra, 450 U.S. at 272.) Thus, an attorney represents “adverse interests”and therebycreates an actual conflict of interests if the attorney’s own financial or professional interests conflict with the representation ofhis client’s best interests. (See, e.g., ABA Model RulesofProfessional Conduct, Rule 1.7 [“A lawyershall not representa client ifthe representationofthat client may be materially limited by. . . the lawyer's owninterests .. .”].) For example, an actual conflict has been foundin cases in which an attorney has acquired publication or media rights regarding his -102- client’s trial. (U.S. v. Hearst (9" Cir. 1980) 638 F.2d 1190, 1193; cf. Bonin v. Calderon (9"Cir. )59 F.3d 815, 825-826[literary rights agreementwith client would create conflict, but lower court finding no such agreement existed upheld].) Although conflicts of interest may be created by the actions of the attorney, they may also be created by the policies of the state or entity employing counsel to represent indigent defendants. (Strickland v. Washington (1984) 466 U.S. 668, 686, and cases there cited.) The Supreme Court has stated that the Sixth Amendmentright to counsel is violated when the ability of counsel to make independentdecisions about how to conduct the defense is compromised. (/d.) This Court has also held that financial and professional incentives or disincentives may deprive a defendant of the TO effectiveassistancecounselThus, inPeople-vBarbezaCal. 3d——_——____——_—. 375, this Court created a judicially declared rule of criminal procedure, announcedin an opinion authored by Justice Richardson, prohibiting public contracts with counsel for indigent defendants which “contain inherent and irreconcilable conflicts of interest.” (/d. at 381.) In Barboza, Justice Richardson reversed the conviction oftwoindigent defendants who had beenrepresented by the Madera County Public Defender because the contract under which the public defender was paid created an -103- inherent conflict of interest. Under this contract, the public defender’s office was to receive payments totaling $104,000 per year. However, each year $15,000 of this amountwasplaced in a special fundto be used to pay counsel who were appointed whenthe public defendercould notrepresentan indigent defendant due to conflicts of interest. The public defender wasentitled to any moneyleft in the fund at the end ofthe year and wasalso required to make up any deficiency. Asdescribed by Justice Richardson,“[t]he direct consequence ofthis arrangementwasa financial disincentive for the public defendereither to investigate or declare the existenceofactualor potential conflicts ofinterest requiring the employment ofother counsel.” (/d. at 379.) Justice Richardson foundthat the contract ran afoulofthe rule requiring attorneys to avoid “any relation which would prevent [the attorney] from devoting his entire energiesto his client’s interests.” (/d.) “The contract here expressly places the public defender in a situation in which, potentially, his financial interests-- both personal and professional-- opposetheinterests of certain of his client-defendants.” (/d., at 380.) No matter how well-intentioned the public defender might be, the contract places him in a situation with grave consequences and implications for the administration of justice. Not only is there an ‘appearance of impropriety,’ there is also a real and insoluble tension, created by the contract, between the defender's conflicting interests. (id.) -104- Significantly, Justice Richardson did not analyzethe case to determine whetherthe dual representation had prejudiced the defendants in any specific way,but instead concludedthat the public defender’s contractitselfcompelled reversal. ‘We therefore hold, as a ‘judicially declared rule of criminal procedure’ that contracts of the type herein presented contain inherent and irreconcilable conflicts of interest. It follows that defendantshereare entitled to separate and independent counselonretrial.” (/d. at 381, internalcitations omitted.) As discussed supra, Judge Spinetta was forthright and open about the very real dilemma which counsel Mr. Egan was facing as a result of the pending appeal in the Eldridge case. This was far from a peripheral matter. It had caused “much pain” and “personal pain” to Mr. Egan. (3 RT 608.) In whichat the time of appellant’s trial was very lengthy as he wasonthe verge ofretirement, as he stated at 3 RT 613.*° Thefinding in the Eldridge case had garnered “somepublicity” (3 RT 604)and the holdings ofJudge Spinetta were scathing in their evaluation of Mr. Egan’s performance. As Mr. Eganwas “intendingto retire” after this trial (3 RT 613), his overriding concern would *6 The Eldridge court noted that Mr. Egan had been practicing since 1975, or twenty-six years at the time of appellant’s trial. (Eldridge, supra, at *14.) -105- have been to go out with a clear record. To do that, he would be unlikely to do anything at appellant’s trial which could cause Judge Spinetta to cast him ~ in an unfavorable light with regard to the state bar. Mr. Egan’s overriding concern would have been in controlling andlimiting the damagealready done to his relationship with thetrial judge, not in vigorously defending hisclient. In view of the importance both Judge Spinetta and Mr. Egan himself put on this pending matter, and the uncertainty about whethera report would haveto be madeto the state bar, appellant’s case should have beentransferred to a different judge. Mr. Egan’s failure to move for the recusal of Judge Spinetta created a serious conflict of interest. Reversal is required. Ill. TRIAL ERROR FOR FAILURE OF THE TRIAL JUDGE TO DISQUALIFY HIMSELF AS A RESULT OF COMMENTS THAT INDICATED HE COULD NOT BE IMPARTIAL. Appellant’s conviction, death sentence, and confinementare unlawful and were obtained in violation of his rights under the Due Process Clause of the Fifth Amendment, the Assistance of Counsel Clause of the Sixth Amendment, the Cruel and Unusual Punishment Clause of the Eighth Amendment, and the Due Process, Equal Protection, and Privileges and Immunities Clauses of the Fourteenth Amendment, as well as his corresponding rights underarticle I, sections7,8, 15, and 17 of the California -106- Constitution, because the judge whopresidedathis trial had shown,by pre- trial comments, that he could not be impartial and he refused to disqualify himself. As a result, appellant was deprived ofhis right to a fairtrial. A. Facts in Support. On March 19, 2001, six months before appellant’s trial commenced, the defense filed a motion to disqualify Judge Spinetta, on the basis of statements he made “in connection with the denialofthe motion for a new trial and sentencing of Mr. Lee Snyder, a co-defendant in this case” where he indicated his belief in the guilt of the defendants. (4 CT 1135-1181; 4 RT 834.)”’ The motion wasfiled by lead defense counsel Mr. Egan. (4 CT 1135, 1182.) It alleged that appellant would move to have Judge Spinetta disqualified because he “has made statements that require disqualification 170.1(a)(6)(c)....such that a person aware of the facts might reasonably entertain a doubtthat the judge would be impartial at Mr. Perez’ trial.” (4CT 1135.) An accompanying motion made the same request “on constitutional grounds.” (4 CT 1182-1183.) The motion alleged that appellant, Maury O’Brien and Lee Snyder were 27 The motion, entitled a “Statement of Disqualification”is at 4 CT 1135-1181 and the accompanying “Motion To Disqualify On Constitutional Grounds”is at 4 CT 1182-1183. -107- indicted for murderand appellant’s trial was severed from Mr. Snyder’s. (4 CT 1136.) Mr. O’Brien had been offered leniency in exchangefor testifying at Mr. Snyder’s trial and “[a]ll parties and the court anticipate that Mr. O’Brien will testify at Defendant’s trial...” (/d.) Judge Spinetta presided at both Mr. Snyder’s and appellant’s trials. (/d.) As Mr. Snyderwasajuvenileat the time of the offense, he was not eligible for the death penalty. Vd.) Mr. Egan observed part of Mr. Snyder’s sentencing hearing, where he recognized reporters from “the Contra Costa Times,the San Francisco Chronicle, KRON- TV and KGO-TV.”(4 CT 1136-1137.) Judge Spinetta told Mr. Egan that he had granted permission for the news media to photographand tape portionsof the sentencing proceedings. (4 CT 1137.) As Mr. Eganstated in the motion On Saturday, March 3, 2001, I read an article in the San Francisco Chronicle relating to Mr. Snyder’s sentencing. The article indicated that during the proceedings Judge Spinetta, in responseto Mr. Snyder’s assertion that he had not been involved in the crimes, made statementsindicating his personalbelief in the truth of the testimony given by Mr. O’Brien. I was concerned aboutthis... (4 CT 1137.) Mr. Eganasked the court reporter in Mr. Snyder’s case to prepare a partial transcript of the sentencing hearing, which he attached to his motion. (4 CT 1155-1173.) Although Mr. Egan foundthat “the press did not quote Judge Spinetta with great precision,” the judge did make the following prejudicial remarks at Snyder’s sentencing: -108- 1) “I am persuaded that the evidence that was presented in this case indicates that Mr. O’Brien was telling the truth in all material regards...” (PRT 4:18-20; 4 CT 1178.)°8 2) “But having madethat evaluation of the evidence in this case, I am persuaded,asI have said,that in all material respects he [O’ Brien] was telling the truth.” (PRT 4:26-28; 4 CT 1178.) 3) “I guess the way to expressit is this: That I am as confident as one can be in these matters. These matters don’t lend themselves to scientific precision, but I am allowing for that. I am confident as one can be that no injustice has occurred andthat the jury has rightfully convicted defendant of the crimes chargedin this case.” (PRT 5:5-11; 4. CT 1179.) you guilty of each andall the charges...I reviewed that evidence, asI indicated earlier, to assure myselfthat there was substantial...substantial evidence to support those verdicts....As I indicated earlier, I am 28 “PRT”refers to the partial transcript of the Snyder sentencing appended to Mr. Egan’s motion, using Mr. Egan’s page numbering, with the line number(s) following the page number. Although Mr. Snyder’s trial transcript has been made part of the Record on Appealin this case, for easier reference appellant will use the pagination of Mr. Egan’s motion and also the pagination ofthe partial transcript contained in the Clerk’s Transcript of appellant’s case. (4 CT 1155-1179.) -109- persuaded as muchas anyone can bein these matters, that the verdicts were supported by substantial evidence and that you, in fact, did commit the murderthat you were charged with.” (PRT 35:22-26; 4 CT 1156.) 5) “This murder was senseless. It was vicious. It was heinous. All adjectives which I found in the correspondence J received which I alluded to earlier describing the kind of murder that it was. One individualin his letter to me indicated that what occurred here wasthat the victim, Mrs. Daher, was strangled, stabbed and stepped upon. And that’s all true. This wasall done with premeditation. Indeed,it’s striking to me here...these individuals, including you Mr....you, Mr. Snyder,set out to go kill someone else in Solano, stopped over in Lafayette, killed someone, Mrs. Daher, and then continued onto goto Solanoto kill that individual again... This premeditation permeates the whole process. The murder itself was...cold, it was callous, and it was perpetrated by what clearly indifferent murderers, among whom youare to be counted, Mr. Snyder. Not only were you amongthe three, but J sat here through the...and heard the evidence, and the evidencestrongly points to the fact -110- that Mrs. Daher was deadat the time she was stabbed. The evidence indicates that her neck was probably broken before she was stabbed, and the evidence indicated that you, yourself, along with Mr. Perez, were responsible andactively participatedin thatstrangling, pulling the telephone cord that broke her neck.” (PRT 46:10-47:11; 4 CT 1167-1168.) 6) “Oneofthe reasonsI allowed the TV coverage thatis taking place here is I wantto give as much widespreadnotice as possible as to what happens to people who commit horrendouscrimesofthis nature. It’s important to send out the message that individuals whodo these things are going to be held accountable.” (PRT 49:22-27; 4 CT 1170.) In Mr. Egan’s motion,he pointed out that there were manyreferences testimony in this case, as summarized supra.”’ Newspaper accounts appendedto the motion recounted the emotional 29 Someofthe additional references summarized in Mr. Egan’s motion, which need notbe stated in detail here, are that Mr. O’Brien became acquainted with appellant shortly before the crime was committed; that O’Brien and Snyder conceiveda plan to rob and,if necessary, kill a drug dealer in the Fairfield or Davis area; that appellant agreed to participate because he needed money;that they took BART and disembarked at Lafayette; that the three of them entered a house with an open garage door; andthat appellant and Mr. Snyder strangled the woman they foundin the house. (4 CT 1140-1141.) -111- nature of Snyder’s sentencing hearing. (4 CT 1149-1153.)*° The newspaper accountin the Contra Costa Timesstated that “Maury O’Brientold the jury in detail what he, Snyder and Joseph Perez did the day they robbed andkilled Daher. O’Brientold the truth about the material facts, Spinetta said.” (4 CT 1150.) The San Francisco Chronicle account stated that “[f]ellow suspect Maury O’Brien providedriveting testimony at Snyder’s trial and is expected to testify against Perez.” (4 CT 1153.) The defense motion was made under Code of Civil Procedure §170.1(a)(6)(C). (4 CT 1135-1181.) An accompanying motion to disqualify Judge Spinetta was madeon constitutional grounds (4 CT 1182-1183) and a later motion was made under Codeof Civil Procedure §170.3(c)(3). Judge Bernard Garber was assigned to rule on the motion for disqualification ofJudge Spinetta under Code ofCivil Procedure § 170.3(c)(3). (4 CT 1238.)°! Despite the numerousreferencesto appellant at Mr. Snyder’s sentencing hearing shown supra, Judge Garber held that “[t]he only place 30 Indeed, as discussed herein, several jurors commented during voir dire that they had already madeup their minds based on what they had seen or heard in the media aboutthe case, based on these media accounts. 3! Judge Garber’s ruling stated that “[t]he thrust of the Defendant’s argumentis based on Code of Civil Procedure §170.1(6)(c) which states ‘A judge shall be disqualified if a person aware ofthe facts might reasonably entertain a doubt that the judge would beable to be impartial.” (4 CT 1239.) -112- where Mr. Perez was mentionedis on page 47,line 6 ofthe transcript...” (4 CT 1240.) This holding wasat the very least ingenuous,ifnot outright erroneous, as it ignored the many other instances listed supra where appellant, if not directly named,is plainly referred to by Judge Spinetta. Judge Garberthen proceeded to deny the motion on severalirrelevant and inapplicable grounds. Heheld that“the fact that a judge presided over a priortrial does not by itself bar him or her from presiding over a retrial” and “It]his court is satisfied that there is no prohibition that would prevent the trial judge from hearing multiple separate trials of co-defendants.” (4 CT 1240.) Of course this is true, but this was not the issue. While there is no such general prohibition, the prohibition was created by the judge’s comments, not his status as a judge presiding overthe separate trials of co-defendants. ee hat “fi}n-thi Judee Spi a waslimiting his commentsto those which were necessary in ruling upon the motion for newtrial and factors in determiningthe appropriate sentence for the co-defendant ofMr. Perez.” (4 CT 1240.) Here, Judge Garberagain misstated the issue. As Mr. Egan pointed out in his motion, the problem wasnot Judge Spinetta’s comments on O’Brien’s testimony: The comments made by Judge Spinetta concerning hisbelief that Mr. O’Brien told the truth in “material regards” and “material respects” were madeat the time he wasruling on Mr. Snyder’s Motion for New Trial. Judge Spinetta madeit clear -113- that in arriving at his decision to deny the motion he did what he is required to do. He must, anddid, independently review the evidence as a ‘13th juror’ and determine whether he would have decidedthe casedifferently from the other 12 jurors...He chose, appropriately, to comment on his personal and factual determinations regarding O’Brien’s testimony. (4 CT 1143.) Rather, the problem was the unnecessary comments that specifically related to appellant: That testimony [O’Brien’s], in ‘material regards’ and ‘material respects’ constituted evidence as to Mr. Perez’ identity, his knowledge, his planning, his intent, his motive, his mentalstate, his actions,his level ofparticipation in the crime, and the overall circumstancesofthe crime. Thus, as regard(sic) to Mr. Perez, Mr. O’Brien provided material evidence for the proof of the crimescharged,the proof ofthe special circumstances charged and proof concerning a factor in aggravation at a potential penalty trial. The facts, in full context, do not provide a basis for determining that a person evaluating Mr. O’Brien’s testimony could conclude that he was truthful in ‘material regards’ and ‘material aspects’ concerning Mr. Snyder, but not necessarily truthful concerning Mr. Perez. Legal necessity imposed upon Judge Spinetta the obligation to deal with the matters before him, and made it impossible to fulfill that obligation withoutraising, at a minimum, a doubt regarding his impartiality toward Mr. Perez. (4 CT 1143-1144.) Judge Garber also misstated the facts in holding that Judge Spinetta limited his comments “to those which were necessary in ruling upon the motion for new trial and factors in determining the appropriate sentence” for Mr. O’Brien. (4 CT 1240.) This misstated the scope ofthe comments, which, as Mr. Egan pointed out, “while the statements concerning Mr. Perez were not -114- inappropriate per se, neither were they necessary for the Snyder hearings.”(4 CT 1194.) Also irrelevant to the motion was Judge Garber’s holding that Judge Spinetta “was making legitimate and appropriate comments necessary to makerulingsin the case of the co-defendant.” (4 CT 1241.) The motion was not based onthe alleged impropriety of the judge’s comments, but on the fact that, having made them, Judge Spinetta was now in a position that mandated his disqualification. Judge Spinetta filed a written answer to this challenge in which he denied saying or doing anything that would disqualify him. (4 CT 1184-1188.) In that answer Judge Spinetta focused on the fact that his statements were madein the course of his judicial duties (4 CT 1185), and the language of Code of Civil Procedure 170.2(b) whichstatesthat “(i)t shall not be a grounds a legal or factual issue presented in the proceeding...” (4 CT 1185.) Appellant’s case was of course a different proceeding from that of Mr. Snyder’s, where the views were expressed, and Code of Civil Procedure 170.2(b) is not applicable. Judge Spinetta also argued that Evenif the Perez trial is viewed as a separate proceeding from that involving Snyder..[m]y commentsregardingthe credibility of Maury O’Brien and the reasons I gave forsentencing Mr. Snyder to life without possibility of parole were exclusively -115- based uponandrelated solely to the evidence presentedin the Snyder trial. Since my comments in the Snyder ‘case’ were limited to the evidencepresentedthere,it cannot reasonably be inferred from those commentsthat I have pre-judged the Perez ‘case’ in any manner. (4 CT 1186.) However, the evidence presented in Snyder,at least at the guilt phase, was almost identical to that presented in the Perez proceedings, as they involved the same crimes. Although Judge Spinetta wrote his answer prior to the commencement of appellant’s trial, this would have been reasonably expected by him when he wrote it. There is also a logical inconsistency in Judge Spinetta’s assertion that the Snyder and Perez matters were the same proceeding (4 CT 1185) and his simultaneousassertion that his comments in Snyder were limited only to that case (4 CT 1186), which contradictorily assumesthat they were different proceedings. Judge Spinetta also focused on his subjective feeling that“it would be unreasonable to concludethat my evaluation of the evidence presented in the Perez case...might be impacted by my having heard andevaluated the evidence in the Snyder case.” (Id.) On the contrary, this would be an eminently reasonable conclusion, as the evidence was expected to be similar in both cases, andit ultimately was. His conclusion wasthat “[a] person familiar with the different legal issues involved and knowingtherole of the judge in such matters could not reasonably conclude that the statements made by me in -116- sentencing Mr. Snyder and ruling on his motion for a new trial in any way compromised my impartiality regarding Mr. Perez.” (4 CT 1187.) But Judge Spinetta did not explain how or what “different legal issues” were involved in the two cases with the samefacts. As Mr. Egan pointedoutin his reply, Judge Spinetta’s answer doesnot address the issue as the statute framesit, that “the facts and circumstances bearing on the judge’s possiblepartiality must be consideredas ofthe time the motion is brought.” (United Farm Workers ofAmerica, AFL-CIO v. Superior Court (Maggio, Inc.)(1984) 170 Cal.App.3rd 97, 105; cited at 4 CT 1199). As that case points out, “the use of the word ‘might’ in the statute was intended to indicate that disqualification should follow if the reasonable man, were he to know all the circumstances, would harbor doubts about the judge’s ~ impartiality.*(United t104-105.) is Spinetta’s——— - subjective feelings that are in issue, but the viewpoint of the reasonable objective person. Mr. Egan did not disagreethat the statements made by Judge Spinetta were made in the courseof official proceedings and in the discharge ofhis judicial duties. (4 CT 1194.) While the statements were not inappropriate per se, “regardless of their appropriateness in one context, they maystill [be] reviewed as to their effect in another context. Here, Judge Spinetta’s -117- appropriate statements in the Snyder proceedings do create an appearance of bias underthe provisions ofCode ofCivil Procedure 170.1(a)(6)(C) insofar as the trial of defendant is concerned.” (4 CT 1194.) Judge Garberultimately denied the motion. (4 RT 848.) As to the resulting prejudice suffered by appellant, his trial was presided over by a judge who thought he wasguilty. Appellant’s jury knew that the presiding judge thought appellantwas guilty. Additionally, the media dissemination of Judge Spinetta’s statements biased some of the prospective jurors. Several ofthem formed negative opinions ofMr. Perez based on what they had heard aboutthe case in the media. This could only have come from the Snydertrial and sentencing,asit directly preceded appellant’s trial. The record reveals that several prospective jurors admitted they had seen various media reports and were biased against appellantas a result. For instance, prospective juror Jeffrey Maitlen stated that if appellant was found guilty, he would “adamantly press for the death penalty,” based on whathe heard ontelevision. (7 RT 1651.) Prospective juror Susan Branagan stated that if the defendants were found guilty, she wanted them “killed like they killed her” because “I knowall the details.” (7 RT 1709.) Prospective juror Sharon Brechtelstated that, based on whatshe hadlearned throughtrial- related publicity, she felt that Mr. Perez was guilty and, as a result, she could -118- not be impartial. (8 RT 1835.) She added that there was “no way”she could set aside what she hadlearned about the case. (8 RT 1837.) Prospective juror Mary Meredith similarly stated that she was not sure she could be fair because of what she had heard about the case. (8 RT 1837.) George Herberger had also heardthe publicity, and, as a result, thought the defendant wasguilty. (8 RT 1846.) It would be hard to overestimate the prejudicial impact on appellant’s prospective jurors and jury panel of hearing or reading that the presiding judge thoughtthat O’Brien hadtestified truthfully andthat appellant was therefore guilty. B. Argument. A fair and impartialtrial is a fundamentalaspect ofthe right ofaccused personsnotto be deprivedoflife or liberty without due process oflaw. (U.S. Tumey v. Ohio (1927) 273 U.S. 510, 523; People v. Superior Court (Greer) (1977) 19 Cal.3d 255, 266.) There are many componentsto a fair and impartial trial, one of which is a defendant’s right to a trial by a detached, fair and impartial judge whois not biased against him.(/d.) It is fully recognizedthat thejudiciary must not only be impartial but should always appear impartial. /n re Richard W. (1979) 91 Cal.App.3d 960, 967.) Neither Judge Spinetta’s statement nor Judge Garber’s denial of the -119- motion for disqualification squarely addressedthe issues raised by appellant. As shown above, Judge Garber denied the motion based on severalfindings - which wereeitherirrelevantor belied by the record. He ruled that “the fact that a trial judge presided overa prior trial does not byitself bar him or her from presiding overa retrial” (4 CT 1272); andthat “there is no prohibition that would preventthe trial judge from hearing multiple separatetrials of co- defendants.” (/d.). As shown supra, appellant’s counsel never made these arguments or claimed that the statements were inappropriate or disqualifying per se. Rather, the motion was made on the grounds that “they were not necessary for the Snyder hearings” (4 CT 1194) andthat even if they were properly made in Snyder’s case, they rendered the judge disqualified in the subsequent proceedingsinvolving appellant. Defense counselalso pointed out the irrelevance of Code of Civil Procedure section 170.2, whichstates that “lilt shall not be grounds for disqualification that the judge ...has in any capacity expressed a view on a legal or factual issue presented in the proceeding.” (5 CT 1273.) That section, as discussed supra,is inapplicable here because the Snyder proceedings were not the same proceeding as applicant’s trial. People v. DeJesus (1995) 38 Cal.App.4th | is a case in which the defendants were assignedtotrial before the samejudge who had conductedthe -120- preliminary hearing. (Cited at 4 CT 1195.) They objected on due process grounds, “stating that their rights were denied by having the same judge preside at both the preliminary hearing and the trial.” (4 CT 1195.) The defendants alleged neither bias nor the appearanceof bias, but rather that it was impermissible as a matter of law for a judge “to conduct both the preliminary hearing andthe trial regardless of any actual impropriety or the appearance of impropriety.) (/d.) The DeJesus court held that The protection against any actual prejudice arising out of the conductbythetrial judge of the preliminary hearinglies not in the blanket prohibition proposed by appellants, but, rather,in the utilization of existing means of challenging a perceived bias or other lack of fairness ofthe trial judge....if counsel conclude a trial judge is for any reason biased, they may avail themselves of their remedies pursuant to Code of Civil Procedure section 170.1 or 170.6. (DeJesus, at 16-17.) 170.1 in the preliminary hearing/trial context is not barred by section 170.2(b), neither is a challenge barred in the co-defendant trial/defendanttrial context.” (4 CT 1197.) Appellant asserts that his right to a fair and impartial trial was violated whenthetrial court indicated it believed O’Brien hadtestified truthfully and failed to recuse himself, and that he was prejudiced thereby. -121- IV. THETRIAL COURT ERRED IN “REHABILITATING” DEATH- PRONE JURORS BY ASKING LEADING AND SUGGESTIVE QUESTIONSON VOIRDIRE,WHICH STACKED THE JURYIN FAVOR OF A DEATH SENTENCE, THEREBY DEPRIVING APPELLANTOF A FAIR AND IMPARTIAL JURY. A. Introduction. The jury selection procedure in appellant’s case was accomplished through individual juror questionnaires, signed under penalty of perjury, and then individual questioningofthe prospectivejurors, mainly by the court.” As discussed supra, the defense and prosecution were limited to about one minute of questioning per juror, so the bulk of the voir dire was conducted by the court. Defense counsel objected to this procedure. The trial court “rehabilitated” jurors who, on the basis of their questionnaires, would otherwise have been subject to challenges for cause by the defense. The court’s interventions on behalf of pro-death jurors were designed to have them change their otherwise-objectionable questionnaire answers. These interventions, through leading and suggestive questions, had the inevitable effect of stacking appellant’s jury poo! with pro-death-penalty jurors. The court’s questioning wasso suggestive andleading thatit allowed 32 It was agreed in pre-trial motionsthat the jury room wasto be filled with prospective jurors and they were to be broughtoutindividually for voir dire questioning. (RT 74-75.) ~122- pro-death-penaltyjurors to concealtheir disqualifying biases and basically led them to completely change their answers on the basis of the court's “suidance.” In contrast, prospective anti-death penalty jurors were peremptorily excused withoutany corresponding rehabilitative efforts by the court or questioning by the attorneys. Appellant was prejudiced by these actions, as some of these “rehabilitated”jurors actually served on his jury. For others, appellant had to use peremptory challenges against those who should have been excused for cause. Moreseriously, the cumulative effect of the improper rehabilitations was to skew the panel lopsidedly in favor ofthe State and in favor of a death verdict. No matter how many peremptory challenges the defense had at their ~disposal,biasedjury stilte ultedcourt’s ability and-——---~~ demonstrated inclination to “seed” the panel with pro-death-biased prospective jurors in a quantity sufficient to overwhelm defense peremptory challenges. The court’s rehabilitative efforts also inhibited and prejudiced the exercise of the defense peremptory challenges, as it would have been futile to challenge too manyofthe randomly-chosen objectionable jurors, beyond the extremely biased, if the remaining eligibles pool had an equal or possibly higher proportion of objectionable jurors, whichit plainly did. Additionally, the -123- presence in the pool of “rehabilitated” jurors with extreme pro-death biases was anotherprejudicialfactor for the defense, as challenging the moderately- ~ biased risked their substitution with the extremely-biased. The Sixth Amendmentto the United States Constitution states that “[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed... .” (U.S. Const., Amend. VI.) The Fourteenth Amendmentextended theright to an impartial jury to criminal defendantsin all state criminal cases. (Duncan v. Louisiana (1968) 391 U.S. 145.) In addition, the Due Process Clauseofthe Fourteenth Amendmentindependently requires the impartiality of any jury empaneledto try a cause. (Morganv. Illinois (1992) 504 U.S. 719, 726.) The court’s actions deprived appellantofhis right to a fair and impartial jury and a fair trial under the California Constitution and the Fifth, Sixth, Eighth and Fourteenth Amendmentsto the United States Constitution, and article I, sections 15 and 16 of the California Constitution, as well as his Eighth and Fourteenth Amendmentrights not to be condemnedto death except onthe basis ofunbiased andreliable procedures. (UnitedStates v. Baldwin (9" Cir. 1983) 607 F.2d 1295, 1298; People v. Chapman (1993) 15 Cal.App.4th 136, 141. See also United States v. Saimiento-Rozo (5" Cir. 1982) 676 F.2d -124- 146, 148.) “The conduct of voir dire is left to the broad discretion of the trial judge. The exercise ofthat discretion, however, is limited by ‘the essential demandsoffairness.’” (Knox v. Collins (5™ Cir. 1991) 928 F.2d 657, 666 citing Aldridge v. United States (1931) 283 U.S. 308, 310.) B. Facts in Support. Appellant’s voir dire and trial was presided over by Judge Peter L. Spinetta ofthe Contra Costa County Superior Court. In pre-trial proceedings, it was agreed thatall prospective jurors would compete a questionnaire which inquired abouttheir personal characteristics, attitudes toward the death penalty, ability to listen to mitigating evidence, prior experiences with the criminal justice system,and the like. The questionnaires were signed under penalty of disqualifying pro-death opinions that were changed at voir dire as a result of the court’s coaching the prospective jurors toward the “correct” answers. Juror No. 37 had several questionnaire answers that were “clarified” by the court in its examination. The court first clarified that the proofrequired was beyond a reasonable doubt, not proof beyond any doubt. (7 RT 1638- 1639; 3 JQ 934.) Butthis juror also had preconceived notions about expert testimonyandfelt that it “was not alwayscorrect.” (7 RT 1639; 3 JQ 938.) -125- Based on the questionnaire, there wasa issue in the court’s mind as to whether the juror would“listen to psychiatric, psychological testimony, mental health testimony.” (7 RT 1639.) By a series of leading questions, such as “Talfter you’veheardit all, [would you] give it whatever weight you think it deserves, but not make that decision until you’ve heardit,” and “[would you] [n]ot prejudge the matter,” the juror agreed to consider these matters. (7 RT 1639- 1640.) This juror’s questionnaire answers also raised issues about an unwillingness to consider “the background and social history of the defendant.” (7 RT 1640; 3 JQ 943.) The court noted “ some question here about whether you'd listen to evidence about the social history of the defendant.” (7 RT 1640.) After being asked “would you be willing to disregard costin arriving at your decision”the juror agreed to disregard it. (7 RT 1640; 3 JQ 942.) This juror also thought there were some cases where he/she “would always impose the death penalty.” (7 RT 1641; 3 JQ 942.) After being told that “the law requires neither of these penalties” this juror stated that he/she was prepared to follow the law. Anotherprospective juror wasidentified by the court as “Juror No.3" becausehe/she actually served on appellant’s jury. (7 RT 1484.) This juror had many pro-prosecution answersboth in their questionnaire (1 JQ at 138 et seq.) and at voir dire. Juror No. 3 was questioned about a brother in New -126- York, who was formerly a defense attorney for the New York Police Department. (7 RT 1486-1487.) Juror No.3 did not think this would have any affect. (7 RT 1487.) Next the judge focused on this juror’s answerto Question No. 31, where the juror was identified as a crime victim. (7 CT 1486.) Juror No. 3 wrote “I would be sympathetic to the victim.” (U/d.; 1 JQ 144.) The judge then engagedin a lengthy statement to the juror aboutthe necessity to be fair and the prospective juror agreed to “ try” to be fair. (7 RT 1487.) The judge finally askedthe juror if he/she thought they could “pullit off.” (Id.) Not surprisingly, the juror said yes. (/d.) The judge then explained aboutwitness credibility and endedwith the leading question, “I take it you're willing to do that?” (7 RT 1489.) Juror No. 4(7 RT 1489) believed that the criminaljustice system made (7 RT 1491; 1 JQ 87.) Hethen said that was “just a comment” The court led him to the answer: “[a]nd you’re prepared to follow the law?” (/d.) Prospective juror Robert Ripley had disqualifying opinionsas he was not willing to consider childhood and background information as mitigating. (7 RT 1509; 2 JQ 807.) Repeating his questionnaire answer, hestated that“I don’t believe childhood events or social history has (sic) a bearing in the penalty phase.” (7 RT 1509.) Despite further leading questioningby the court, -127- he repeated his view that background should not be considered It’s very difficult for me. To explain...to give you a background on my thinking, my thinking is the defendant, if found guilty of first degree murder underspecial circumstances, I consider that a heinous crimeas such. I don’t believe that having someone’s social or economic background should be viewed or weighed in looking at the penalty phase. (7 RT 1510-1511.) The court then coaxed andled him: “But you now know whatthe law says...But it says you haveto considerit. You have to, in good faith...do you want to think aboutit a little bit and let me know?” (7 RT 1511.) Not surprisingly, the juror then said he thought he could, but he qualified his answer: “[i]t depends on the circumstances.” (7 RT 1511.) Again, after yet more coaxing, he stated that “I think I can do it” (7 RT 1512) but then again qualified it by stating that he might be affected by gory photos. After yet more questioning, he wasbasically back wherehe started and notsure he could be fair. (7 RT 1513.) The juror then revealed that he was a crime victim and “more apt to look at the victim’s right, a heightened sensitivity to them.” (7 RT 1514; see also 2 JQ at 787-788.) After a break in his questioning, Robert Ripley was brought back for further questioning, butstill insisted that he would not give consideration to the defendant’s background. (7 RT 1559.) He stated that he could not promise to consider it (7 RT 1560) and it would affect his ability to be impartial. (7 RT -128- 1561.) After another break in the questioning, he was broughtback yet again. During further questioning by the prosecutor, Mr. Ripley statedthat he would consider a person’s criminal background in the penalty phase. (7 RT 1566.) But as for the social and family background, which would possibly be mitigating factors, he was much morereluctant, stating, “I see that it is the law” to consider both backgrounds. (7 RT 1567.) As he admitted, “I view these in two different contexts.” (7 RT 1568.) Finally, he agreed he would reluctantly consider the defendant’s social background. (7 RT 1569.) However, he once again qualified it by saying that “I don’t see it [social background] as important an element as I would the others.” (7 RT 1571.) Then the judge posed a leading question, ending with “do you see the difference?” Despite this coaching,this juror wasstill “wrestling” with giving ~ socialbackgroundweight.(7-RP-AS72.)—— The defense then challenged this prospective juror for cause, but it was denied. (7 RT 1578.) In explanation, Judge Spinetta stated that Ripley is “very careful...is aware that he needs to be open-minded” despite a litany of answersthat indicated the exact opposite. (7 RT 1579.) Defense counsel than gave a long objection asto this denial of the challenge for cause, stating that the only reason this juror changed his answers wasbecause District Attorney Sequeira cross-examined him. (7 RT 1580.) Judge Spinetta stated that he did -129- not badger him. Juror No. 1 had heard aboutthe case in the media andas a result, was unsure whether she could be fair. (7 RT 1626; 1 JQ 80-81.) In the questionnaire, media exposure through newspapers, people at work, a co- worker, television, radio and people who knew the victims were all listed. (1 JQ 80.) Juror No. 1 was quite knowledgeable about the case, as the co-worker knew the victim’s family, their children went to school together, and “they shared driving responsibilities for extra-curricularactivities e.g. sports.” (1 JQ 80.) Juror No. | also wrote in her questionnaire that [w]hoever did the crime were walking by [the] home, maybe walking from BART,saw the open garage w/SUVandsaw it as an opportunity to take the SUV...It must have been totally devastating for the daughterto find her mother dead. We spoke aboutthe efforts to find whoeverkilled the victim ofthat...J was horrified aboutit at the time. I kept reminding my husbandto close the garage door because hehas a habit of leaving it open when he walked our dog. Why give someone an opportunity to take anything from you or possibly harm you in any way...It’s humannatureto feel a bit biased towards someone whotakes a humanlife...because they want to take a car... (2 JQ 80-81.) The court then asked her a leading question:“Are you preparedto say: Look, I read aboutthese things. I formed someopinions, but basically | am goingto set all that aside. I am going to listen to the evidence and the law and I am going to make my decision based upon whatI hearhere. Is that in fact what you are prepared to do?” (7 RT 1627.) After this, the juror stated she -130- “thinks” she could do it. (d.) Prospective juror Neftalie Quirino Milanioatfirst stated that he would require the defendantto prove his innocence and then confusingly reversed that opinion and stated that he would not. (7 RT 1633.) Although clearly confused (7 RT 1634), the court then coaxed him to the “right” answers and he eventually stated that he could vote “not guilty.” (7 RT 1635.) He wasalso led to the opinion that he would not consider the costs of imprisonment (7 RT 1636.) Although he wrote on his questionnaire that he would not consider mentalhealth testimony (2 JQ 773), the court told him he must. (7 RT 1636- 1637.) C, Argument. The Sixth Amendmentto the United States Constitutionstates that“[i]n ~-all-criminat prosecutions, theaccused-shall-enjoy-therightto-a-speedy-and— - public trial, by an impartial jury of the State and district wherein the crime shall have been committed... .” (U.S. Const., Amend. VI.) The Fourteenth Amendmentextendedthe right to an impartial jury to criminal defendants in all state criminal cases. (Duncan v. Louisiana (1968) 391 U.S. 145.) In addition, the Due Process Clause ofthe Fourteenth Amendmentindependently requires the impartiality of any jury empaneled to try a cause. (Morgan v. Illinois, supra, 504 US. at 726.) -131- Whether a prospective capital juror is impartial within the meaning of the Sixth and Fourteenth Amendmentsis determined in part on the basis of their opinions regarding the death penalty. A prospective capital juroris not impartial and “may be excluded for cause becauseof his or her views on capital punishment[if] thejuror’s views would ‘prevent or substantially impair the performanceofhis duties as ajuror in accordancewithhis instructions and his oath.’” (Wainwright v. Witt (1985) 469 U.S. 412, 424; citing Adamsv. Texas (1980) 448 U.S. 38, 40.) A prospective juror who will automatically vote either for or against the death penalty regardless ofthe court’s instructions will fail to consider in good faith evidence of aggravating and mitigating circumstances. Such ajuroris not impartial and cannot constitutionally remain ona capital jury. (Witherspoonv.Illinois (1968), 391 U.S. 510, 885. Ct. 1770; Morganv.Illinois (1992), 504 U.S.719 at 728, 733-734, 112 8. Ct. 2222.) In Witherspoon,the United States Supreme Court held that capital-case prospective jurors may not be excused for cause on the basis of moral or ethical opposition to the death penalty unless those jurors’ views would prevent them from judging guilt or innocence, or would cause them to reject the death penalty regardless of the evidence. Excusal is permissible only if such a prospective juror makes this position “unmistakably clear.” (/d., 391 U.S.at 522, fn. 21.) Witherspoon also holdsthat the defendantis entitled to -132- an impartial jury at both phasesofthe trial, which was denied appellant here. That standard was amplified in Wainwright v. Witt (1985) 469 U.S. 412, 105 S. Ct. 844, where the Court, adopting the standard previously enunciated in Adamsv. Texas (1980) 448 U.S. 38 at 45, 100 S. Ct. 2521 448, held that a prospective juror may be excusedif the juror’s voir dire responses convey a “definite impression” (Witt, supra, 469 U.S. at 426) that the juror’s views “would ‘preventor substantially impair the performance ofhis duties as ajuror in accordance with his instructions and his oath.’” (/d. at 424.) The Witt standard applies here. (People v. Avena (1996) 13 Cal.4th 394, 412.) Thus, this Court’s duty is to [E]xamine the context surrounding [the juror’s] exclusion to determine whetherthe trial court’s decision that [the juror’s] beliefs would “substantially impair the performance of [the juror’s] duties . . .” was fairly supported by the record. (People v. Miranda (1987) 44 Cal.3d 57, 94, quoting Darden v. Wainwright - (1986) 477 U.S. 168, 176.) Areviewofthesejurors’ entirejuror questionnaires and voir dire leaves the “definite impression”thatthey so strongly in favor ofthe death penalty that their ability to follow the law was substantially impaired within the meaning of Witt. Hence,their “rehabilitation” by the trial court waserror. In Ross v. Oklahoma (1988) 487 U.S. 81, 108 S. Ct. 2273, the Supreme Court held that the erroneous refusal to disqualify a juror for cause under -133- Witherspoon, causing the defendant to exercise a peremptory challenge, did not violate his constitutionalrights because no claim was madethat anyofthe jurors who sat were not impartial nor were any challenged for cause and peremptory challenges are not a constitutional right. Here however, both exceptions are present. Manyofthe jurors discussed above were challenged for cause andit is alleged that the above-discussed jurors whoactually sat on Appellant’s jury were biased and not impartial. D. Conclusions. What is most disturbing about this process, and most violative of appellant’s rightto a fairtrial, is the fact that the court’s colloquy and inquiry did notserve the purpose ofseating an unbiasedjury that would befair to both sides. The court’s questioningofthese pro-prosecution prospective and actual jurors was not done with the intent to weed outthose with disqualifying or objectionable views regarding the death penalty or mitigating evidence. The questioning was not two-sided. Nordid it pose questions designedto reveal the extent of the bias rather than just put an acceptable face on it. The nature of the questioning, with long statements ofthe law backed by the authority of the trial judge, along with “don’t you think” or “did you really mean” questions, left no room for disagreement. Thesole purpose ofthe questioning was to “rehabilitate” the pro-death jurors, a process that benefitted only the -134- prosecution. Nor did any anti-death-penalty jurors receive the same rehabilitative treatment from the court. They were simply excused for cause withoutthis “rehabilitative” questioning. For the reasons discussed herein,this wasreversible error. V. PROSECUTORIAL MISCONDUCT FOR PURPOSELY DELAYINGFILING THE NOTICE OF AGGRAVATION. Appellant’s conviction and death sentenceare invalid underthe federal constitutional guarantees of due process, equal protection, trial before an impartial jury and a reliable sentence dueto the substantial and injuriouseffect of prosecutorial misconduct in failing to file the notice of aggravation in a reasonablytimely fashion. This misconductdistorted the fact-finding process and rendered both thetrial and sentencing hearing fundamentally unfair. (U.S. Const. Amends. V, VI, VIII, & XIV.) Hampering the defense investigative efforts, the prosecutorstalled and delayedfiling the “Notice of Aggravation” outlining his intended penalty phase evidence until shortly before the trial commenced. The aggravation evidence concerned an alleged rape of witness Ms.Torres by appellant. A. Facts in Support. Despite repeated requests by the defense, the Notice of Aggravation wasnotfiled at court hearings on January 26, 2001 (4 RT 758); March2, -135- 2001 (4 RT 758 et. seq.); March 16, 2001 (4 RT 790); May 24, 2001 (4 RT 869)(when the prosecutorstated that he “will think” about when hewill file the notice ofaggravation); June 15,2001, (4 RT 896)(whenthe prosecutor said he has filed an “informal” notice of aggravation); and July 27, 2001, (4 RT 960)(when the prosecutor promised to have the notice filed that day). At every one ofthese court hearings, the defense complainedthat they had notyet received it. The Notice of Aggravation wasreceived by the defense only on August 16, 2001, shortly beforetrial. (5 RT 1017, 1165.) It included evidence of an alleged rape incident regarding whichthe defense had not received any discovery. (5 RT 1165.) The court denied a motion to exclude the evidence and for a continuancebased on this new allegation. (5 RT 1172.) The record showsrepeated requests for the Notice of Aggravation by defense counsel Linda Epley. On February 23, 2000, defense counsel Epley wrote to the district attorney seeking the Notice of Aggravation pursuant to Penal Code 190.3(b). (5 CT 1553.) On March 8, 2001, she wrote to district attorney Paul Sequeira requesting discovery ofthe factors in aggravation and, specifically, the uncharged rape ofAndrea Jones. (4 CT 1218;5 CT 1554.) On March 22, 2001, Ms. Epley wrote to the San Francisco Police Department requesting a copyofthe rape report. (5 CT 1554.) Muchofthis delay was due to the prosecutor’s attempts to game the -136- system. For instance on March 2, 2001, the prosecutorattempted to provide an excuseforhis failure to provide the notice: The Court suggested that I provide some idea to Ms.Epley of what weintend to use. It...it’s much like the witnesslist idea. As soon as you provide a formal Notice of Aggravation...somebodyis trying to lock me in, and I don’t want to be locked in until the appropriate time beforetrial. If you look at Penal Code section 190.3, it says a reasonable time beforetrial. We are now about nine weeks awayfromtrial. (4 RT 767.) Atthat hearing, although the prosecutor stated he had provided “nine incidents of aggravation”to the defense, he also admitted that “[t]here may be a few other things that comeup in the next week or two, but I don’t plan on dropping anything on her 30 days beforetrial.” (4 RT 766.) Yet that was exactly whatthe prosecutordid in regard to the alleged rape ofAndrea Torres, as the defense had no discovery on that incident as late as August 16, 2001, “just shortly before trial. (5 RT 1165.) At the March 2, 2001 pre-trial hearing, defense attorney Linda Epley told the court she has been asking for the notice for over a year. (5 RT 768.) The prosecutor Mr. Sequeira stated that he was undernoobligationto provide it earlier. (/d.) Mr. Egan notedthat the prosecution failed to provideit by the end of the year as they had promised andthe court had ordered. (5 RT 769.) Egan informedthe court that “Mr. Sequeira didn’t do whatthe court asked him to do.” (5 RT 771.) Both sides were admonished regarding discovery. (5 RT -137- 778.) At the next pre-trial hearing on March 16, 2001, the failure of the prosecutorto file the notice wasstill in issue. (5 RT 786.) Ms. Epley claimed that the letter she received from the prosecution, entitled a “Notice of Ageravation,”wasonly a onepageletter itemizing nine factors in aggravation. (5 RT 790.) She claimed it did not meet the requirements for notice, as no discovery accompaniedit. (5 RT 791.) Ms. Epley complained that “I am still in my infancy here with a trial date less than 60 days away, with some very major factors in aggravation that I would like to be very prepared on.” (5 RT 794.) The court held that the standard is “reasonable”notice, citing People v. Johnson (1993) 6 Cal. 4" 1, which says that the people have an obligation to file a notice that is reasonable before the trial. (5 RT 795.) In Johnson, notice was given before jury selection andit was heldto be timely. The court stated that the statute does not say whenit mustbefiled, except that it must be before trial. The filing of the notice was purposely delayed in order to prejudice appellant. The prosecutor Mr. Sequeira actually hintedthat his delay was such a tactic. On May 24, 2001 hestated: MR. SEQIEIRA:I have given somethoughtto a time when I’m going to file a formal notice of aggravation. MS. EPLEY: What’s that thought? MR. SEQUEIRA:That’s between me and myself at this point. -138- MS. EPLEY:Okay. MR. SEQUEIRA:Unless the court directs me a date to file a formal notice. (4 RT 869.) That same day, the court registered its impatience and stated: “Let’s meet again in...[t]hree weeks...and in that timelet’s file a notice.” (/d.) MR. SEQUEIRA:Okay. THE COURT: Okay. If you can’t be ready or don’t wantto, be ready to tell us specifically why at that point, okay? MR. SEQUEIRA:All right. (d.) However, the defensestill did not have full discovery three weekslater. The Notice of Aggravation wasreceived only on August 16", 2001, shortly beforetrial. (5 RT 1017, 1555; 4 CT 1278-1281.) Defense counsel Ms. Epley objected, terming the notice “very untimely” when shereceived it. (5 RT 1165.) The prosecutor again stated that he was only required to produce it “TpJrior to trial” [which] means‘prior to today,’” which wastrial calling. Ud.) Defense counsel specifically objected dueto the fact that “[o]n that notice is an alleged uncharged rape of Andrea Torres, which I have beentalking about for some months now.I do not have any discovery aboutthat incident.” (/d.) Asto the question of prejudice, she stated that “I cannotsay to the court then that I could possibly be ready on that aggravation because I have nothing in order to prepare a defense.” (/d.) The defense then moved to exclude the Torres alleged rape incident -139- from being presented by the prosecution in aggravation. (5 RT 1167.) The prosecutor countered by claiming that in March he sent Ms. Epleya letter that was an informalnotice of aggravation “whichbasically set outall the things that I intendedto use in the penalty phase that are now in my formalnotice. The only things that were not included were the Department of Corrections records, which I couldn’t get because ofthe protective order.” (5 RT 1168.) The prosecutoralso stated that there will be no additional evidence other than that from Ms. Torres in connection with this alleged rape incident. (5 RT 1169.) The court observed that since the defense knew whothedetective in this incident was, there was nothing preventing their preparation. (/d.) The court then stated that it couldn’t tell whether the defense wasprejudiced as a result. (5 RT 1170.) Ms. Epley moved for a continuance because ofthe delay. (5 RT 1171.) In denyingthis motion,the court then reverseditself and ruled that there was no showingofprejudice. (5 RT 1172.) B. Argument. No evidence maybe presentedby the prosecution in aggravation unless notice has been given to the defendant within a reasonable time, as determined by the court, before trial. Penal Code section 190.3 par. 4. Penal Code section190.3 has been construed as requiring pretrial notice of the actual -140- evidence on which the prosecution intendsto rely to establish aggravating factors at the penalty phase. (Matthews v. Superior Court (1989) 209 Cal. App. 3d 155, 158.) Reciprocal discovery pursuant to Penal Code 1054 et seq.is available with respectto penalty phase evidence andshould normally be made at least 30 days prior to the commencementofthe guilt phase ofthetrial. (People v. Superior Court (Mitchell) (1993) 5 Cal.4th 1229, 1238.) Here, appellant was not provided with discovery related to the evidence which supports the aggravation until October 2, four weeks ajier the jury trial had begun. (5 CT 1558.) The prejudicial effects were three-fold. First, the filing of the notice immediately before the trial thwarted the investigation of this incident and efforts to discredit the witness. Secondly, it renderedtrial counselineffective “injury selection,because they-coutd not-tailor-their-veir—diretowardthe——-~ attitudes of the jury regarding this rape allegation. The voir dire was not specially-tailored to take into accountthis allegation. Had defense counsel been given adequate notice of this incident, jury selection would in all probability have been far moreeffective. Third, the late filing of the death notice prevented the defense from preparing and requestingjury questionnaires designed to ferret out the attitudes of the prospective jurors towards this incident. Reversal is required. -141- VI. OTHER INSTANCES OF PROSECUTORIAL MISCONDUCT TAINTED APPELLANT’S TRIAL AND VERDICT. Appellant’s right to due process of law, equal protection ofthe laws, anda reliable sentence,trial by jury, and by an impartial sentencer, effective assistance of counsel, compulsory process, confrontation and cross- examination, proof of criminal offenses beyond a reasonable doubt were violated by prosecutorial misconduct. (U.S. Const. Amends. V, VI, VIII, XIV.) A. Facts in Support. i. Offering improper victim impact evidence at the guilt/innocence phase. The prosecutor asked the victim’s family various questions solely designed to elicit sympathy for them at the guilt phase. i) Irrelevant victim impact testimony waselicited from the victim’s husband Joe Daherat the guilt/innocence phase: How long have you known your wife? Well, 30 years. Since high school? Since high school. Did you go to school together? . Yeah, we did. (9 RT 2081.) > O > O > O ii) Irrelevant victim impact testimony waselicited from Annie Daher, the daughter ofthe victim at the guilt/innocence phase. She did not witness anything, did not add anythingto the State’s case for guilt, and did not view -142- the body. Her testimony wassolely to elicit sympathy for the victim’s family. (9 TR 2100-2111.) ii. The prosecutor improperly vouchedfor the credibility of a witness. The prosecutor improperly vouched for the credibility of witness Jason Hart at the guilt phase argument: “But you think Jason Hart is goingto tell the cops that he gave three guys a ride from what amounted to a murderifhe didn’t do it? Well, we know he didn’t do it, so he’s not going to do that.” (15 RT 3578.) ili. Improper questioning and attempting to bias the jury. Theprosecutor repeatedly asked improper questionsofdefense penalty phase witness Susan Frankel, an attorney whohadserved as a mentor to Mr. —Perez.Despiterepeatedobjections andthecourt’srulingsthatsuchquestions. _ were improper, the prosecutor persisted in this line of questioning. The prosecutor questioned her about correspondence whereMr. Perez had denied he was involvedin a crime: Q. MR. SEQUEIRA:If...let me ask youthis question: Ifhe would have confessed to the crimein the letter, would you have turnedit overto anybody? A. MS. FRANKEL: I think it would be speculating... Q. No... A....aS to what I would have doneat that time. Q. If he had written you in theletter... MS. EPLEY:I’m goingto object as to relevance, your Honor. -143- THE COURT:Sustained. Sustained. Speculation. MR. SEQUEIRA: You didn’t want to answer that question, did you, so you interposed your own objection because you’re a lawyer; isn’t that true? MS. EPLEY:Objection, your Honor. Argumentative. THE COURT:Sustained. MR. SEQUEIRA:Isn’tit true you didn’t want to answerthat question, ma’am? MS. EPLEY: Objection, your Honor. The question’s (sic) been sustained. THE COURT:Sustained. Sustained. MR. SEQUEIRA:Is there anything he would have written in the letter that would have made youturn it over to the authorities? MS. EPLEY:Objection. Relevance. THE COURT:Sustained. (22 RT 5011-5012.) Thusthe prosecutorpersisted in asking improper questions designed to discredit witness Ms. Frankel, to imply that she was biased toward appellant, and that she would have possibly acted unethically in order to protect him. The repeated sustaining ofthe defense’s objections did not cure the effects of this misconduct. Thejury wasleft with the impression that they could not trust Ms. Frankel’s testimony about appellant. iv. Argumentative questions designedto bias the jury. Again, on questioning Ms. Frankel, the prosecutor resorted to argumentative questions designed to bias the jury against the defendant: MR. SEQUEIRA:Well, because isn’t it a particularly heinous crime that he goes into a woman’s houseandstrangles her with a telephone cord andstabsherto death... MS. EPLEY: Objection. THE COURT:Sustained. Let’s not be argumentative, please. -144- MR. SEQUEIRA:How doyoufeel about that? MS. EPLEY: Objection. Relevance. THE COURT:Sustained. (22 RT 5016.) Vv. Improperreferences to appeals. Atfinal argument, the prosecutortold the jury that he was asking them to “put him [appellant] on a bus” and have him “sit on death row until his appeals process is over and be executed.” (24 RT 5407.) At the conclusion ofthe argument, defense counsel movedfora mistrial, stating that the mention of appeals, that he would sit in San Quentin “until all of his appeals were exhausted” “must mean, perhaps, the appeal will be successful.” (24 RT 5531.) Vi. Improperreferences to lack of remorse. At the penalty phase final argument, the prosecutor stated: “And what expressions of remorse do we hear about? Do we hear the conversation going: I can’t believe we did that. Things completely whippedout of control. I don’t know what happened. I mean things were—this is horrible No, don’t hear that.” (24 RT 5425.) Lack of remorse was once again mentioned, in sarcastic terms, in the prosecutor’s final argument: “The defendant in an extraordinary show of remorse displays his trophy, right? Big diamond earning.” (sic) (24 RT 5426.) Defense counsel, at the conclusion of the argument, objected and -145- movedfora mistrial, citing several mentions of “where is the remorse?” (24 RT 5532-5533.) In response, prosecutor Sequeira stated that he did not talk about any successful appellate process and did not focus on lack of remorse. (24 RT 5533.) The court held that one has to be careful about mentioning appeals but it did not diminish the remarks did not diminish the jury’s responsibility. As to the remarks about remorse,the court stated that they were in reference to circumstancesof the crime. (24 RT 5534.) The motion for a mistrial was denied. (/d.) vii. The cumulative effect of these instances of prosecutorial misconduct deprived appellantof a fair trial. The effect of these individual instances of prosecutorial misconduct must be seen not only individually, but in the aggregate. Even if any one of them alone did not render the verdict unreliable or the trial unfair, their cumulative effect was to deprive appellantofa fairtrial. B. Argument. It has long been recognized that misconduct by a prosecutor may be groundsfor reversing a conviction. (Berger v. United States (1935) 295 U.S. 78, 85-88.) Part of this recognition stems from a systematic belief that a prosecutor, while an advocate, is also a public servant “whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done.” (/d. at 88.) -146- It is the responsibility of the trial court to ensurethat final argumentis kept within proper and accepted bounds. (United States v. Young (1985) 470 U.S. 1, 6-11.) That responsibility must be discharged with full awarenessthat “the prosecutorial mantle ofauthority can intensify the effect on thejury ofany misconduct.” (Brooks v. Kemp (11th Cir. 1985) 762 F.2d 1383, 1399 (en banc)). Decisions concerning penalty phase prosecutorial misconduct, like those regarding other aspects of a capital trial, have been predicated by the maxim that “death is a different kind ofpunishment from any other which may be imposedin this country.” (Gardner v. Florida (1977) 430 U.S. 349, 357.) This difference has required the courts to ensure, by means of procedural safeguards and a heightened degree ofjudicial scrutiny under this super due “processthatistheproductofarbitrariness-or- ~~ -----—-——-—_-— caprice. To pass constitutional scrutiny underthis heightened standard, the death penalty must not be applied in an arbitrary or capricious manner. Rather, there must be ‘an individualized determination whether the defendant in question should be executed, based on the character of the individual and the circumstances of the crime.’” (Adamson vy. Ricketts (9th Cir. 1988) 865 F.2d 1011, 1021(en banc).) Consequently, “(a] decision on the propriety of a closing argument must look -147- to the Eighth Amendment’s commandthat a death sentence be based on a complete assessment of the defendant’s individual circumstances, and the Fourteenth Amendment’s guarantee that no one be deprived of life without due process of law.” (Colemanv. Brown (10th Cir. 1986) 802 F.2d 1227, 1239.) The avoidance ofarbitrariness in the jury’s exercise ofits discretion also requires that jurors be “confronted with the truly awesome responsibility of decreeing death for a fellow human...” ( Lockett v. Ohio (1978) 438 U.S. 586, 598.) The United States Supreme Court has made it quite clear that the prosecutor may not “attach the ‘aggravating’ label to factors that are constitutionally impermissible ortotally irrelevantto the sentencing process.” (Zant v. Stephens (1983) 462 U.S. 862, 885.) It has also been held that it is “clearly improper for a prosecutorto urge the imposition of death because of the race, religion, sex, or social status of the victim.” (Brooks v. Kemp (11th Cir. 1985) 762 F.2d 1383, 1409(en banc). See also Darden v. Wainwright (1986) 477 U.S. 168, 181-82 (“the prosecutor’s argument may not manipulate or misstate the evidence,or implicate other specific rights ofthe accused such as the right to counsel orthe right to remain silent”).) A prosecutor’s improper closing argument violates the due process clause of the Fourteenth Amendmentif it was so prejudicialthat it “infected the trial with unfairness.” (Darden v. Wainwright, supra, 477 U.S.at 181; Donnelly vy. DeChristoforo (1974) 416 U.S. 637.) Whether a prosecutor’s argumentis an impermissible commentonthe defendant’s right not to testify -148- is reviewed de novo. (United States v. Johnston (5th Cir. 1997) 127 F.3d 380, 396; United States v. Martinez (5th Cir. 1998) 151 F.3d 384, 391.) Both the individual and cumulative effect of these egregiouserrors in the prosecution’s questioning and arguments wasthat they “infected thetrial with unfairness.” (Darden v. Wainwright, supra, 477 U.S. at 181; Donnelly v. DeChristoforo (1974) 416 U.S. 637). Thus, even ifthis Court holds that any oneofthe errors alone wasnotsufficient to create this fundamental unfairness, the proper frameworkfor the analysis is to examine the argument as a whole, as the jury heard it, and notsimply to evaluate the individual claimsseparately. VII. APPELLANT’S RIGHTS WERE VIOLATED WHEN THE TRIAL COURT REMOVEDA SWORN ANDSITTING JUROR DURING THE GUILT PHASE. and a reliable sentence, trial by jury, and by an impartial sentencer, effective assistance of counsel, compulsory process, confrontation and cross- examination, proof of criminal offenses beyond a reasonable doubt were violated by the improper removal of a sworn and seated juror during the guilt phase whose expressed scruples related solely to the penalty phase. (U.S. Const. Amends. V, VI, VIII, XIV.) -149- A. Facts in Support. A jury was selected and sworn on September 19, 2001. (8 RT 1871.) The jury returned on September 24, 2001 for the first day of trial. Before opening statements commenced and out of the presence of the jury, Judge Spinetta told counselthat a couple of issues involving jurors had arisen. One juror had a problem regarding afternoon child care. Ofmore significance was another juror, “Juror No. 7" who approached the judge ex parte and “indicated that he wanted to discuss with mehis level of comfort with sitting on a death penalty case and suggesting that — that he may have some difficulty in that regard.” (9 RT 2010.) Judge Spinetta had informed the juror that he could not discuss the issue without the presence of counsel. (/d.) The juror was told the matter would be addressedlater in the day after the judge had an opportunity to discuss it with counsel. (/d.) A few other housekeeping matters werediscussed,thejury was broughtinto court, opening statements were given by the prosecution and defense and several witnesses testified. (9 RT 2008- 2009.) Atthe end ofthe day after the otherjurors were excused,Judge Spinetta asked Juror No. 7 to remain. (9 RT 2199.) Judge Spinetta explained that 3 This juror’s nameis redacted and hewill be identified by his numberas he actually served on appellant’s jury. -150- before proceedings began, Juror No. 7 approachedthejudge and indicated he wanted to relate something to the court. (9 RT 2199.) Judge Spinetta then invited Juror No. 7 to relate his concerns. Thejuror explainedthat since being sworn on the jury the previous week he had “time and reasonto reflect further on myself, on the death penalty” and that “I don’t necessarily have a problem with the death penalty.” (9 RT 2200.) Judge Spinetta interrupted and reminded Juror No. 7 of answers he had given on the jury questionnaire, including his answer “no” regarding whether he had any moral, religious or philosophical qualms about imposition of the death penalty. (9 RT 2200.)** The Judge asked: “Has anything changed in terms ofhow you would respond to that question now?” Juror No. 7 answered “yes,” explaining that “I no longer think J] am capable ofmaking that decision myself.” (9 RT 2199-2201.) imposition of the death penalty came from “deeper thought, personal reflection.” (9 RT 2201.) Upon further questioning by the Judge, Juror No. 7 related that he no longer felt he could set aside personal feelings regarding 4 On his questionnaire, Juror No. 7 answered “no” to Question No. 101: “Do you have any religious, philosophical, moral or other viewsthat might bear on yourability and/or willingness to make such a decision {whether punishment should belife or death]?” (5 JQ 1618.) The juror explained that “[m]y religious, philosophical, and moral views would guide my decision but not my willingness to makethe decision.” (5 JQ 1618- 1619.) -151- the death penalty. (5 JQ 2202-2203.) Thejurorstated further that he could not contemplate any circumstances where he could impose the death penalty: “...I can’t conceive of a situation where I reach that conclusion.” (9 RT 2203.) Juror No. 7 noted that Timothy McVeigh hadjust recently been executed and that he didn’t have a problem with the judgmentand execution ofMcVeighin that case (9 RT 2203), but “[a]t the sametime, I imagineif I was on that, if I wason that jury, I can’t imagine comingto that conclusion,that the penalty of death was preferable or somehow better conclusion to reach than life in prison without parole.” (9 RT 2203.) The juror acknowledged that he had previously believed he was capable of imposing a death verdict “[b]ut thatis no longer the case. I no longer think I can do that.” (9 RT 2204.) Healso denied that there was “any specific event or anything that has happened”that caused his change of mind,rather that it was “just further reflection.” (9 RT 2204.) Juror No. 7 concluded bysaying: “I am a computer programer. I tend to think abstractly. And in general, I don’t have a problem with that. When it comes to being the person that makesthat decision, I don’t see me actually reachingthat conclusion. But, again,that’s just since last Wednesday.” (9 RT 2204.) With that, Judge Spinetta excusedthejuror and asked that he return the next morning. (9 RT 2204.) The court and counsel then discussed the matter. The prosecutor was -152- adamantthat Juror No. 7 was “unrehabilitable” and the court wasinclined to agree. (9 RT 2206.) Nonetheless,the court recognized that removinga sitting juror “is always a matter of very — always a very, very, serious matter, and before doing it, I feel we have to explore every possibility and considerall angles.” (Id.) Therefore, the judge concluded that Juror No. 7 should be questioned further and recessed for the evening. (9 RT 2206.) Defense counsel argued that“[h]e said I don’t see myself reaching the position where I felt that the aggravating circumstances would so outweigh the mitigating circumstances that death would be the punishment I would choose”andthat this did not disqualify him. (9 RT 2207.) First thing the next day Juror No. 7 was brought in for further questioning. Judge Spinetta first asked the juror “[i]s your state ofmind such that-youcouldsitback,listentotheaggravatingevidence,listentothe— mitigating evidence, and then make—and honestly consider whether the aggravating circumstancesor evidence outweighsthe mitigating evidence or vice-versa. Can you honestly consider those things?” (10 RT 2215.) Then another essential question was posed by Judge Spinetta: “[o]r is yourstate of mind such that no matter what the aggravating circumstanceis and no matter whatthe mitigating circumstance evidenceis that you could notever vote for life — or for death?” (/d.) The juror answered: “Yes, that’s morethe case. -153- Right now,thinking throughthe different possibilities, I can’t imagine a case where I could find — where I wouldfind the death sentence a more appropriate penalty than life imprisonment withoutpossibility of parole.” (10 RT 2215- 2216.) On further probingby the court, the juror concluded: “I can’t —I don’t see me being capable of saying that death would be a more appropriate penalty than life in prison without possibility of parole.” (10 RT 2215-2216.) The questioning was then concluded andthe juror excused from the proceedings. (10 RT 2216.) No questions were asked whether the juror’s views on the death penalty would affect his determinationofguilt or the presence of special circumstances. The prosecutor then movedfor the recusal of Juror No. 7 and argued vigorously that he was disqualified and should be removed. The court acknowledgedthat “he haddifficulty understanding what we weregetting at.” (10 RT 2217.) Defense counsel disagreedthat the juror was disqualified and requested that if the court determines that he’s not able to sit on the penalty phase, I ask that in the alternate he remain on the jury for the duration of the guilt phase. He’s been on it. There’s no reason why he can’t be on it. He’s qualified to sit on the guilt phase. If it turns out there is a penalty phase, the issue can berevisited and he could be disqualified from that. (10 RT 2217-2218.) The court noted that “The reason for excusing him,if there’s a reason -154- for excusing him, has to do with his inability to perform the duties and responsibilities of a juror during the penalty phase,that is, make the decision that a juror’s called upon to make in that phase.” (10 RT 2218.) The court also noted that if the juror had expressed his current views during voir dire “li]f somebody had challenged him for cause, I would have excused him.” (Id.) Judge Spinetta then observedthat “it is true, as you pointout, that the deformity, if you will, relates to the penalty phase.” (10 RT 2218.) The question now posed was whetherthe juror’s penalty-phase “deformity” was “good reason for excusing him fromparticipating in the culpability phase.” (10 RT 2218.) The court then mused about “various scenarios.” One scenario was not totell the juror he would be excused at the penalty phase andto leave him in place. (10 RT 2218.) But,in that event, the court noted, “it could be arguedthat hisdecisionintheculpabilityphasewould be affected by his desire not to participate in the penalty phase.” (/d.) However,as to this possibility, the court admitted that “we haven’t voir dired him aboutthat.” (10 RT 2219.) On the other hand, the court mused, [i]f I do tell him andtell him don’t worry aboutit, you’re not going to bein the penalty phase,all you have to do is make the culpability decision, that might also affect him in the culpability. He mightsay,all right, if I don’t have to worry aboutthat, it might makeit easier for him to render a decision of guilt, for example, because, remember,he did say he has no problem with other people imposing the death penalty. It’s just he doesn’t wantto participatein it. -155- (10 RT 2219.) Judge Spinetta worried that an appellate court “mightsay, well, under these circumstances, they facilitated the possibility of his rendering a guilty verdict.” (10 RT 2219.) Regardless of its own speculative musings, the court had earlier noted that “we haven’t voir dired him” about any of the posited scenarios but, nevertheless, was inclined to excuse him. (10 RT 2219.) Defense counseloffered a “third option... to tell him thatat this point it’s notreally an issue for him as ajuror. Ifhe wantsto raise it again at a point where it does becomean issue, he can do so, and the court will listen to him and ask him questions again.” (10 RT 2220.) Defense counselstated that this isn’t so different from a situation where a juror in the middle of proceedings realizes that they do, in fact, know a potential witness and they don’t know if it would affect their ability to be a juror. And I’ve beenin situations where the court says, well, let’s see what happens. Ifit does in fact become a problem for you, let us know and we’ll address it then. I had that happen many times. I’ve even had it happened (sic) during voir dire where the court in a capital case—wherea court says, well, if that becomes an issue for you, something that the juror raised, let us know and we’ll take care of it then. (10 RT 2220.) As defense counsel noted: “[W]e don’t necessarily excusesittingjurors because of somepossibility.” (10 RT 2221.) The prosecutor argued that “the People have a right to have jurors that are called death qualified.” (10 RT 2221.) He argued that allowing the -156- scrupled juror to remain for the guilt phase denied the prosecution their right “to have 12 jurors that are willing to consider both penalties.” (10 RT 2221.) According to the prosecutor, the legislature clearly “expressed a desire to do these trials in one phase with one jury.” (10 RT 2222.) Furthermore, “[iJt is unbelievable and inconceivable that this man cansit on the jury and not have that decision in the future. The penalty phase can potentially affect his guilt phase.” (10 RT 2222.) The fact the juror discovered his true feeling after being sworn to jury was ofno momentto the prosecutor: “This juror cannotsit in this case. He’s not qualified to sit in this case. It did come uplater, butit is no different than if he told us before. Just because he’sa sitting juror doesn’t make a difference. He needs to be removed for cause.” (10 RT 2223; emphasis added.) Thecourtreviewedthecircumstancesandconcludedthefollowing: His state of mind in my view substantially impairs his ability and prevents him from being able to properly discharge a key duty and responsibility of a juror in a capital case and thatis to honestly consider both alternatives, both alternative punishments that are available by law in this type of a case and to make a decision based upon a relative comparison of the aggravating evidence and the mitigating evidence. In effect what we have here is a person whose viewshave led him—are suchasto have him prejudge the case—at least, the penalty phaseofthe case... (10 RT 2224.) The moredifficult issue was whetherthe juror should be allowed tosit in guilt phase without telling him about his disability for penalty. On this -157- score, the court concludedthat“the dangeroftelling him or nottelling him or keeping him would — given his state of mind aboutthe penalty, carries too great of a danger to impact him on the culpability decision.” (10 RT 2225.) The court decided to approachthesituation as ifthe issue had arisen before he was sworn and“a challengefor causehere lies and a challenge for cause here lies to excuse him from participating in this case. So I’m goingto sustain the challenge to this juror.” (10 RT 2226.) The defense objected on the basis of the defendant’s constitutional rights to due process and a fair trial. (10 RT 2226.) The defense also stated that this problem was the direct result of the inadequate voir dire (discussed supra in Issue I): AndI believe to some extent this ties in with the situation that happens when wedon’t have sequesteredvoirdire, and there are some limitations placed on the amount oftime that’s available to question jurors. And when we get someone with a questionnaire and that person is not extensively questioned because everyone is going along with what’s in the questionnaire, and then something like this comes up...maybe this would have been exposed....{in a ] more...relaxed atmosphere in terms of doing the questioning, in other words, not being concerned with how muchtimeis going to be taken up. And then both sides may have asked other questions and that person would be gone. By doingit this way,it has affected the manner in which we were exercising our peremptory challenges. (10 RT 2227.) As will be shown, the decision to remove Juror No. 7 constitutes -158- reversible error. B. Argument. i. Thetrial court employed the wrong standard to dismiss a seated juror during guilt phase proceedings, depriving appellant of due process and his right to trial by jury. The swearingof a jury carries constitutional significance. Both Federal and state constitutions provide that a person shall not be twice put in jeopardy for the same offense. (U.S. Const. art. V; Cal. Const., art. 1, § 15.) Jeopardy “attaches” when a defendant is placed on trial before a court of competent jurisdiction, on a valid accusatory pleading, before ajury “duly empaneled and sworn.” (Jackson v. Superior Court (1937) 10 Cal.2d 350, 355; Curry v. Superior Court (1970) 2 Cal.3d 707, 712; Larios v. Superior Court (1979) 24 Cal.3d 324, 329.) Jeopardy attaches when the jury is empaneled and sworn becausethe“needtoprotectinterestsofan-accusedin retaining achosen jury.” (Crist v. Bretz (1978) 437 U.S. 28, 35.) In a capital case, before a jury has been empaneled and sworn, a prospective juror may be removed whereit appears that the juror’s views would “‘preventor substantially impair the performanceofhisdutiesas ajuror in accordance withhis instructions and his oath.’” (Wainwright v. Witt (1985) 469 U.S. 412, 425; quoting Adams v. Texas (1980) 448 U.S. 38, 45.) However, oncejeopardy has attached, removalofajuror is governed by Penal -159- Code section 1089, andbasic constitutional principles of due process and the right to a jury trial. Pursuant to Section 1089, a juror may be removed if | “upon other good cause shownto the court [the juror] is found to be unable to perform his or her duty” as a juror. The most common application of these statutes permits the removalofajuror who becomesphysically or emotionally unable to serve as a juror dueto illness or other circumstances. (See People v. Cleveland (2001) 25 Cal.4th 466, 474; cases cited therein.) Atrial court’s decision to dischargea sitting juror for good cause from a criminaltrial is reviewedfor abuseofdiscretion. (People v. Zamudio (2008) 43 Cal.4th 327, 350.) Under this standard, a trial court’s determination of good cause undersection 1089,i.e., that a juror is found “unable to perform his duty,” will be upheld ifthere is substantial evidence supportingit. (People v. Cleveland, supra, 25 Cal.4th at 488; Werdegar,J., concurring.) However, a juror's inability to perform as a juror must “appear in the record as a demonstrable reality.” (People v. Guerra (2006) 37 Cal.4th 1067, 1158; People v. Johnson (1993) 6 Cal.4th 1,21; People v. Compton (1971) 6 Cal.3d 55, 60.) The demonstrable reality test entails a more comprehensive and less deferential review. It requires a showing that the court as trier of fact did rely on evidencethat, in light of the entire record, supports its conclusion that bias was [or was not] established.It is important to makeclear that a reviewing court does not reweigh the evidence under either test. Under the -160- demonstrable reality standard, however, the reviewing court must be confidentthat the trial court's conclusion is manifestly supported by evidence on which the court actually relied. (People v. Barnwell (2007) 41 Cal.4th1038, 1052-1053.) This Court has madeclear that “[w]hile we rely on our trial courts to assessa juror’s state of mind in such circumstances, we have explained that such decisions are not subject to the substantial deference afforded other factual decisions.” (People v. Wilson (2008) 44 Cal.4th 758, 840.) The “demonstrablereality” standardis a “heightened standard,” Barnwell, supra, and requiresa “stronger evidentiary showing than mere substantial evidence.” (Wilson, supra, 44 Cal.4th at 840; People v. Cleveland, supra, 25 Cal.4th at 488.) In the present case, Judge Spinetta expressly determined to remove Juror No. 7 based on the principles of Witt, which applies to the selection of prospective jurors, instead of the principles embodied in section 1089 which applies to the removal of seated jurors. Judge Spinetta explicitly stated: “I believe the proper approachto this is to take the sameposition that would have been taken had the issue arisen before he was sworn...” (10 RT 2226.) Appellant contends that the trial court’s decision to employ the Witt “substantial impairment standard” wasclearlegal error and requiresreversal. Bythe time the court removed Juror No. 7, the juror had completeda lengthy juror questionnaire in good faith; he had participated in voir dire and was -161- placedonthe jury; he was sworn as a juror (8 RT 1871); he was seated on the jury for preliminary instructions and opening statements and he had listened to the testimony of prosecution witnesses. In short, Juror No. 7 was a fully engaged, participating memberof the jury. There was nohint or suggestion that Juror No. 7 had misled or lied in his juror questionnaire or in voir dire. Removing this seated juror as if he was merely a prospective juror was violation of appellant’s right to trial by jury, to a unanimous and reliable verdict and to due process of law. It was also a gross abuse ofdiscretion. But Judge Spinetta’s error went further. Rather than dismissing Juror No. 7 based on a “demonstrable reality” that he was unable to perform his duties as a juror, the court posited several speculative scenariosas a basis for removal. Indeed, the court itselfnoted that the juror was not questioned about the effect his views on the death penalty might have on his guilt and special circumstances determination. (10 RT 2219: “[W]e haven’t voir dired him about that.”) Instead, the judge speculated that leaving the juror on for the guilt phase might skew thejuror either towards conviction or againstit. (10 RT 2218-2220.) Removing the juror based on speculation, or as defense counsel noted, based on “possibilities” (10 RT 2221), was improper and did not amountto evidence of a demonstrablereality justifying removal. -162- il. Removal of Juror No. 7 during the guilt phase based on speculation about the effect his views on the death penalty could have on his assessmentof guilt deprived appellant of the presumption of innocence Anylegal disability Juror No. 7’s views entailed related solely to the penalty phase. There was nothing articulated by this juror which implicated his capacity to sit as a juror for the guilt determination. By focusing onthis juror’s potential disability at the penalty phase, appellant’s right to a presumption of innocence wasviolated. The juror was dismissed on the clear assumptionthat there would bea penalty phase, in other words,that there was no possibility he would be foundineligible for death. This assumption was madeexplicit by the prosecutor:“It is unbelievable and inconceivablethatthis mancansit on the jury andnothave thatdecision in the future.” (10 RT 2222.) It was also explicit in Judge Spinetta’s comments during co-defendant O°Brien’s sentencing, in which he made assumptions about appellant’s guilt, as shown supra in Issue IL. iii. A case of first impression? Only a single case has been identified regarding the issue of ajuror who “discovered” anti-death penalty scruples while engaged in the culpability phase. In Jennings v. State (1987) 512 So.2d 169, a Floridacapital case, “an issue thatis, ifnot unique, at least unusual” arose when a juror during the guilt phaseofthetrial told the court that she had not been “candid” with the court -163- regarding herfeelings about the death penalty. (Jennings, 512 So.2d at 172- 173.) The juror explained that while she could render an impartial verdict in ~ the guilt phase, she could not recommenda death sentence. Unlike the present case, however, the prosecutordid not object to the juror remaining through the guilt phase but he did announcethat removal would be requested in the event of a penalty phase. (/d.) Defense counsel similarly did not objectto the juror remaining but would notstipulate to removal ofthe juror for a penalty phase. (Id. at 173.) Thetrial court removed the juror after the verdict in the guilt phase but before the penalty phase commenced. The appellant in Jennings argued his right to a fair trial was abridged by the interference with the ““magical’ composition of the jury in the middle of the trial.” (Jennings, supra, 512 So.2d at 173.) In addressing the issue, the Florida Supreme Court stated: Aside from the fact that neither side requested it, we see no compelling reason why thejudge should have excused thejuror from the guilt phase. She said that despite her feeling about imposingthe death penalty she would render a verdictas to guilt or innocence based solely on the law and the evidence. Therefore, section 913.13, Florida Statutes (1985)*°, does not 5 Florida Statutes section 913.13 states: “A person whohasbeliefs whichpreclude her or him from finding a defendant guilty of an offense punishable by death shall not be qualified as a juror in a capital case.” -164- apply asit disqualifies only those who cannotvote for guilt in a capital case.” (Jennings at 173.) The Florida Supreme Court could notsee how thetrial judge’s solution to “this unusual problem”could have prejudiced the appellant: “[a]t the outset, we notethat it may be to a defendant’s advantage (though obviously it was not here) to have a juror whois apprehensive about the death penalty consider guilt or innocence.” (/d.) The Florida Court reached its conclusion despite noting that “[hJad the subject juror originally stated during voir dire that she could not vote for death at the penalty phase, she would have been subject to removalfor cause.” Ud.) The same result should obtain in this case. There was no basis for Judge Spinetta to conclude that Juror No. 7’s views on the death penalty would disable him from sitting for the guilt phase. While in Jennings the juror affirmatively stated she could rendera fair guilt verdict, here no inquiry was made on whetheror how Juror No. 7’s viewsmight play out in the guilt phase, a fact noted by the court. (10 RT 2219.) Moreover,in Jennings, unlike here, there was some suggestion that the juror had misled the court and counsel in voir dire by revealing that she was not “candid” in her answers regarding the death penalty. There was no suggestion that Juror No. 7’s scruples were arrived at with anything other than good faith refection upona life and death -165- question. iv. This is plain error under People v. Allen/Johnson, Peoplev. Wilson and People vy. Pearson. Recently this Court has re-examined the circumstances under whichthe trial court may removeajuror. All three cases are instructive. a) People v. Allen/Johnson. In People v. Allen/Johnson (2011) 53 Cal.4th 60, 264 P.3d 336, 133 Cal.Rptr.3d 548, a juror was removed during deliberations. This Court reversed on the groundthat the excludedjuror had not committed misconduct by prejudging the case. Allen/Johnson was a capital case where the co- defendants were both convicted offirst degree murder with multiple murder special-circumstances and sentenced to death. (Ud. at 552.) Attrial, after several days ofguilt phase deliberations, ajury foreperson reported that an individualidentified as Juror No. 11 had prejudged the case while evidence wasstill being presented. (/d. at 553.) All jurors were interviewed andthetrial court concludedthatthis juror had prejudged the case by relying on evidencenotpresentedattrial. (/d.) The court discharged Juror No. 11 and seated an alternate. The defense contendedthat the court exceeded its jurisdiction under Penal Code section 1089. Ud.) 36 Penal Code section1089 provides, in pertinentpart, “if at any time, whether before or after the final submission of the case to the jury, a -166- In Allen/Johnson, on the fourth day ofdeliberations, the foreperson and Juror No. 4 expressed their concernsthat Juror No. 11 had “made up his mind before deliberations began.” (/d. at 554.) They stated that this juror hadsaid, on the second day of deliberations, that “[w]hen the prosecution rested, she didn’t have a case.” ( Jd.) In an inquiry conducted by the court, Juror No. 11 denied he had madeup his mind. However, Juror No. 4 wasalso questioned, and she “believed that Juror No. 11 had made uphis mind before deliberations began”and that he misconstrued the evidence to support his position and that he wasnot “being completely honest” when he denied having already made up his mind. (/d.) Other jurors were also questioned and they gave conflicting accounts: some said Juror No. 11 had dozed off during deliberations; some said more than one jurorhad their minds made up; somesaid Juror No. 11 had based hisdecision on a beliefthatHispanics wouldnotfalsify a document[a.. timecard]; one juror confessed his mind was madeupprior to deliberations. (Id.) WhenJuror No. 11 was re-questioned, he again denied having made up his mind but admitted he had made a remark about Hispanicsnotfalsifying a juror dies or becomesill, or upon other good cause shownto thecourt is found to be unable to perform his or her duty, or if a juror requests a discharge and good cause appears therefor, the court may orderthejurorto be discharged and draw the nameofan alternate...” -167- document. (/d. at 555.) Overthe defendants’ objections, the court granted the prosecutor’s motion to discharge Juror No. 11, “finding he had madeup his mind before jury deliberations began and was basing a decision about [a witness’s credibility]...on his personal opinion of how Hispanics as a group behave.” (Id. at 555.) He wasreplaced by an alternate. This Court ultimately concluded understate law that “the record does not show to a demonstrablereality that Juror No. 11 was unable to discharge his duty, the court abusedits discretion by removing him.” (/d. at 552.) This Court did not reach the question of whether this removalalso violated the defendants’ constitutional rights. In Allen/Johnson, this Court recognized that whether and how to investigate an allegation ofjuror misconductfalls within the court’s discretion, citing People v. Alexander (2010) 49 Cal.4th 846, 926, 113 Cal.Rptr.3d 190. (Id. at 556.) Although “a court should exercise caution” wheninvestigating these allegations, “it must hold a hearing whenit hears of allegations which, iftrue, would constitute good causefor ajuror’s discharge.”(Id. at 556,citing People v. Lomax (2010) 49 Cal.4th 530,588, 112 Cal.Rptr.3d 96.) Failure to do so “may be an abuse of discretion.” (/d.) “For a juror to decide a case beforeit is submitted is misconduct.” (/d. at 557.) The Court noted that when the trial court was informed that Juror No. 11 hadsaid “[w]henthe prosecution -168- rested, she didn’t have a case,”this could suggest that he had madeup his mind before all the evidence was presented. Thetrial court’s questioning of the jurors was thus proper, and the defendant’s allegations that it was both “agoressive and leading” werealso rejected. (/d. at 557.) Thetrial court also properly inquired of Juror No.4 as to the timecard remark,as this indicated a separate instance of misconduct, relying on facts outside the record. In cautionary remarks that have a bearing on Juror No. 7’s removalin this case, this Court stated: Great cautionis required in deciding to excuse a sitting juror. A court’s intervention may upset the delicate balance of deliberations. The requirement of a unanimousverdictis an important safeguard, long recognized in American jurisprudence. This safeguard rests on the premise that each individual juror must exercise his or her own judgment in evaluating the case... Becauseofthe importance ofjuror independence, review -ofthedecisionto discharge-a-juror invelves—‘a-somewhat——- stronger showing’thanis typical for abuse ofdiscretion review.’ ...Thebasis for a juror’s discharge must appearonthe record as a ‘demonstrable reality’ and ‘involves ‘a more comprehensive and less deferential review’ than simply determining whether any substantial evidence’ supports the court’s decision... The reviewing court does not reweigh the evidence butlooksto see whether the court’s ‘conclusion is manifestly supported by evidence on whichthe court actually relied.’... This heightened standard is used by reviewing courts to protect a defendant’s fundamental rights to due process and a fair trial, based on the individual votes of an unbiasedjury... (Allen/Johnson, 133 Cal.Rptr.3d at 558 (citations omitted).) In Allen/Johnson, Juror No. 11 was discharged on two bases: his -169- alleged prejudgmentofthe case andhis reliance on facts outside the record, neither of which were supported by the record. Here, there is nothing in the record that indicates that Juror No. 7 could notfairly and impartially evaluate the guilt phase evidence. In Grobeson vy. City ofLos Angeles (2010) 190 Cal.App.4th 778, 118 Cal.Rptr.3d 798, the Court ofAppeal upheld the excusalofa juror whostated that her mind was made up mid-trial. “It was a flat unadorned,statementthat this juror prejudgedthe case long before deliberations began and while a great deal more evidence hadyet to be admitted.” (Grobeson, 190 Cal.App.4th at 794; 118 Cal.Rptr.3d 798.) In Allen/Johnson, however, as here, “Juror No. 11's statement was made during deliberations, and only made referenceto his previousstate of mindat a single point during thetrial. /t did not indicate an intention to ignore the rest of the proceedings.” (Allen/Johnson at 559 (emphasis added).) Here, Juror No. 7 evidenced no intentions whatsoeverto prejudgethe guilt phase, and his removal was even more improper than the removal in Allen/Johnson. His removal should also be seenin the context of the trial court’s commentsin the Snydercase, which indicatedit had prejudged the guilt of appellant and, as a result, assumedthat there would be a penalty phase. As in Allen/Johnson, Juror No. 7’s statements were not “‘an unadorned -170- statement’ that he had prejudged the case. “It did not establish that he had ignored further evidence, argument, instructions,or the viewsofotherjurors.” (id. at 559.) The situation is similar here with Juror No. 7: there is no indication he had any predisposition as to the guilt or innocence of appellant or that he would ignore or discount any guilt phase evidence. Juror No. 7’s views regarding the death penalty represent his thought processes regarding the penalty phase alone,yet that portion of the trial had not yet begun. As to those views, this Court has held that “it would be entirely unrealistic to expect jurors not to think about the case during the trial...” (People v. Ledesma (2006) 39 Cal.4th 641, 729, 47 Cal.Rptr.3d 326.) Juror No. 7’s views simply expressed “[t]he reality that a juror may hold an opinion...is...reflective of human nature.” (Allen/Johnson at 560.) As in Allen/Johnson, Juror No. 7’sviewsdid notdemonstratethathe“refusedto listen to all of the evidence, [would] begin deliberations with a closed mind, or declined to deliberate,” (Allen/Johnsonat 560), at least as to the guilt phase. b) People v. Wilson. In People v. Wilson (2008) 44 Cal.4th 758, 80 Cal.Rptr.3d 211, this Court held that the trial court violated the juror-removal statute when it removedajuror during penalty-phase deliberations. Thejuror in question had said that he could not vote for the death penalty if the defendant came from a -171- bad family. (/d. at 836.) Thejuror had also allegedly said “this is what you expect when you have no authority figure” to another juror between the testimony ofthe first and second witnesses. (/d. at 837.) In Wilson, this Court reaffirmed the principle ofBarnswell that “a court’s decision to remove ajuror must be supported by evidence showing to a demonstrable reality thatthejuror is unable to perform the duties of a juror...This is a ‘heightened standard’ and requires a ‘stronger evidentiary showing than mere substantial evidence.’” (Wilson at 840, quoting Barnswell, 41 Cal.4th at 1052.) c) People v. Pearson. In People v. Pearson (2012) 53 Cal.4th 306, 135 Cal.Rptr.3d 262, a capital case, this Court recently reaffirmed the principles discussed supra. Here, a prospective juror who expressed allegedly ambivalent attitudes about the death penalty was removedbythetrial judge. This Court held that to be error, because “[t]o exclude from a capital jury all those whowill not promise to immovably embrace the death penalty in the case before them unconstitutionally biases the selection process.” (Pearson at 332.) (See also the discussion infra (in sub-section6 ofthis issue) ofthe federal constitutional standards under Wainwright v. Witt (1985) 469 U.S. 412 and Witherspoonv. Illinois (1968) 391 U.S. 510, 523.) -172- Cc, The removalofJuror No. 7 was structural error which was perse prejudicial. Precisely because of the difficulty of accessing the impact of the improper removalofa seated juror, the error here should be deemed per se prejudicial requiring reversal. (See Sullivan v. Louisiana (1993) 508 U.S. 275, 280-282 [harmlesserror analysis is inappropriate where jury given deficient reasonable doubtinstruction].) By erroneously excluding Juror No.7 overthe defense’s objections, the trial court denied appellant the impartial jury to which he was entitled under the Sixth and Fourteenth Amendments to the United States Constitution. (Utrecht v. Brown (2007) 551 U.S. 1, 6-9.) The erroneous removalofajuroris “not subject to a harmless-errorrule, regardless ofwhether the prosecutor may have had remaining peremptory challenges and could have excused [Juror No. 7].” (People v. Heard (2003) 31 Cal.4th 946, 066, 4Cal.Rptr3d 131: Pearson, supra, 53 Cal.4th at 333.) - The case of United States v. Harbin (7" Cir. 2001) 250 F.3d 532,is particularly instructive. In Harbin the Seventh Circuit Court of Appeal addressed an issueit foundto be “unprecedented”: the prosecutor was allowed to use a peremptory challenge “saved” from the jury selection phase to eliminate a juror on the sixth day of an eight-daytrial. The Seventh Circuit agreed with the defendantthat the prosecution's mid-trial use of a peremptory challenge violated their Fifth Amendmentdueprocessrightto a fair trial as -173- well as their Fifth Amendment right to the intelligent exercise of their peremptory challenges. As can be readily seen, in this case, as in Harbin, Judge Spinetta functionally “reopened” voir dire and permitted a new challenge to an otherwise fully competent juror. Because no one could arguethat the alternate whoreplacedthe seated juror was somehowbiased,the error in Harbin was deemed“precisely the type of error that ‘defies harmless error analysis.’” (Harbin, supra, 250 Fed.3d at 545.) Appellant submits the samedifficulty arises here. There is simply no way to assess the harm caused by the removalof a juror whois otherwise qualified and competent to determine guilt but may be disabled from determining penalty. Consequently, the error must deemed structural. Anotherinstructive case is People v. Young (1929) 100 Cal.App.18, in which,after they had been selected and sworn, one ofthe jurors realized that he was socially acquainted with one of the defense witnesses. Muchlike the present case, the prosecutor sought permission to exercise a peremptory challenge. The court permitted the challenge over defense objection and an alternate juror was empaneled. Theissue in Young concerned the defense’s immediate plea of once in jeopardy which the Court of Appeal concluded should have been accepted. While the Young case’s holding that the defendant’s double jeopardy pleas was valid was ultimately overturned by -174- People v. Hernandez (2003) 30 Cal.4th 1, left undisturbed wasthe underlying finding of reversible error in allowing the prosecutor to employ a peremptory challengeto a sitting juror. D. Removalof Juror No. 7 was also improper under Witt and Witherspoon. “The State’s powerto exclude for cause jurors from capital juries does not extend beyondits interest in removing those jurors who would ‘frustrate the State’s legitimate interest in administering constitutionalcapital sentencing schemesby not following their oaths.”” (Wainwright v. Witt, supra, 469 U.S. 412, 423.) To permit the exclusion for cause of prospective jurors based on their views of the death penalty unnecessarily narrowsthe cross section of venire members.It “stack[s] the deck againstthe petitioner. To execute [such a] death sentence would deprive him ofhis life without due process of law.” (Witherspoon vy.Illinois, “supra, 391U.S.510, 523.SeealsoGray Vv. Mississippi (1987) 481 U.S. 648, 658-659.) Thus, as this Court explained in People v. Heard, supra, 31 Cal.4th 946, 958, “[a] prospective juror may be challenged for cause based uponhis or her views regarding capital punishmentonly if those views would prevent or substantially impair the performanceofthe juror’s duties as defined by the court’s instructions and the juror’s oath. (Wainwright v. Witt, supra, 469 US. 412, 424; People v. Crittenden (1994) 9 Cal.4th 83, 121; People v. Mincey -175- (1992) 2 Cal.4th 408, 456.) A prospective juror is properly excludedifhe or she is unable to conscientiously consider all of the sentencing alternatives, including the death penalty where appropriate. The party seeking to have a prospective juror excused for cause, the prosecution in this case, bears the burden of demonstrating that a challengedjuror is unfit to serve on the jury. (People v. Stewart (2004) 33 Cal.4th 425, 445-447.) The fact that it would be very difficult for a juror to ever impose a death sentenceis not a sufficient basis for granting a challenge for cause. (/d. at 445.) In Stewart, this Court reiterated “that a prospective juror may not be excludedfor cause simply because his or her conscientious views relating to the death penalty wouldlead the juror to impose a higher threshold before concludingthat the death penalty is appropriate or because such views would makeit very difficult for the juror ever to impose the death penalty. Because the California death penalty sentencing process contemplates that jurors will take into account their own values in determining whether aggravating factors outweigh mitigating factors such that the death penalty is warranted, the circumstances that a juror’s conscientious opinions or beliefs concerning the death penalty would makeit very difficult for the juror ever to imposethe death penalty is not equivalentto a determinationthat such beliefs will ‘substantially impair the performanceofhis [or her] duties as a juror’ under Witt, supra, 469 U.S. 412.” (Id.) Moreover, in order to determine whether a prospective juroris fit to serve in a capital case, the trial court must analyze the prospective juror’s questionnaire and voir dire as a whole, rather than simply focus on an isolated -176- statement. (People v. Mason (1991) 52 Cal.3d 909, 953.) Prospective jurors must not be excused if their comments as a wholeindicate that their views on capital punishment would not preventor substantially impair the performance of their duties. (/d.) Here, Juror No. 7's comments on his questionnaire gave no hints that his views were disqualifying. In Mason, the defendant was charged with capital murder. During the initial questioning in voir dire, a prospective juror informedthe court that she would “‘always vote for capital punishment.’” U/d.) After the judge and counsel explained a juror’s obligation to hear and consider mitigating evidence, the prospective juror answeredthat certain evidence could persuade her to vote against the death penalty. The prospective juror further explained that she “wouldtry to leave [her] mind open andlisten to everything”and that she could “realty”-and-“realistically”-see-herself votingforfe imprisonment. instead of death. (/d., at 953-954.) Defense counsel’s motion to excuse the prospective juror for cause wasrejected by thetrial court. On appeal, this Court refused to focus on the prospective juror’s single statement that she would categorically vote for death in every case. Instead, this Court reviewed the prospective juror’s “entire voir dire” and foundthat, given her other comments after being informed by the court of a juror’s obligations, the prospective juror’s views on capital punishment would not -177- have “prevented or substantially impaired the performance ofherduties.” (/d.) Finally, only whenthe prospectivejuror’s statementsare equivocal will this Court defer to the trial court’s determination of the prospective juror’s state ofmind. (People v. Phillips (2000) 22 Cal.4th 226, 234.) Ifthe voir dire is unequivocal, the trial court’s ruling will be upheld only if it is “fairly supported by the substantial evidence in the record.” (People v. Holt (1997) 15 Cal.4th 619, 651; People v. Heard, supra, 31 Cal.4th at 958.) The record does not support a finding that the views of Juror No. 7 would have prevented or substantially impaired the performanceofhis duties as a juror at the penalty phase. The presentcaseis thus similar to Peoplev. Heard, supra, 31 Cal.4th at 966, in which this Court foundthat the granting of the prosecution’s challenge for cause was erroneous. In Heard, the prospectivejurorstated in his questionnaire that imprisonmentforlife without the possibility ofparole to him representeda “worse” punishmentthan death. (Id., at 964.) Later, however, during voir dire, the trial court explained to the prospective juror that California law considered death the more serious punishmentand that the death penalty could be imposed under California law only if the aggravating circumstances outweighed the mitigating circumstances. (/d.) After being informedofthe correctlaw, the prospective juror “did not provide any indication that his views regarding the death penalty -178- would prevent or significantly impair him from following the controlling California law.” (Jd.) Thus, this Court concluded that the “earlier juror questionnaire response, given without the benefit of the trial court’s explanation of the governing legal principles, does not provide an adequate basis to support [the] excusal for cause.” (/d.) Furthermore, to the extent that the prospective juror was unwilling to vote for death unless he was absolutely certain that such a penalty was appropriate, his view was not inconsistent with California law. Under California law, a juror is “free to assign whatever moral or sympathetic value [he or she] deem[s] appropriate to each and all of the various” mitigating and aggravating factors. (CALJIC 8.88; People v. Boyde (1988) 46 Cal.3d 212, 253-254.) Similarly, a juror has the discretion not to vote for the death penalty unless thejuror is satisfiedthatthereis no-doubt aboutthe defendant’sguilt. This Court has repeatedly stated that in determining penalty, “the jurors may consider any lingering doubts they may have concerning the defendant’s guilt.” (People v. Medina (1995) 11 Cal.4th 694, 743; People v. Zapien (1993) 4 Cal.4th 929, 989; People v. Kaurish (1990) 52 Cal.3d 648, 706.) Lingering doubt is considered a factor in mitigation under Penal Codesection 190.3, factor (a) (circumstancesofthe crime), and factor (k) (any other circumstance that extenuates the crime or any sympathetic aspect of the defendant’s -179- character or record). (People v. Hines (1997) 15 Cal.4th 997, 1068; People v. Sanchez (1996) 12 Cal.4th 1, 77-78.) In addition, as recently stated by this ~ Court, “a [juror’s] concern regardingtherisk of error in the criminal justice process [] is not disqualifying by itself ....” (Stewart, supra, 33 Cal.4th at 449) [Excusal for cause waserror when based on prospectivejuror’s statement in questionnaire that“I don’t believein irrevers[i]ble penalties. A prisoner can be released ifnew information is found’’].) Thus, this prospective juror’s view that he would require certainty that the death penalty was appropriate before voting for death did not prevent or substantially impair the performanceofhis duties as a juror. The erroneous excusal of Juror No. 7 for cause violated appellant’s right to an impartial jury, and his right not to be deprivedofhis life without due process oflaw, under the Sixth and Fourteenth Amendmentsto the United States Constitution. (Witherspoon vy. Illinois, supra, 391 U.S. at 522-523.) The violation requires automatic reversal of the death judgment. (People v. Heard, supra, 31 Cal.4th. at 966.) VIII. TRIAL ERROR IN ADMITTING TESTIMONY RELATING TO AN ALLEGED RAPE BY APPELLANT. Appellant’s conviction and death sentence are invalid underthe federal constitutional guarantees of due process, equal protection, trial before an -180- impartial jury and a reliable sentence dueto 1) the introduction of testimony regarding the alleged rape of Andrea Torres by appellant and 2) the court’s ruling that the prosecution hadnopre-trial obligation to disclose to the defense any information or discovery materials regarding this incident. Thistrial error distorted the fact-finding process and rendered the sentencing hearing fundamentally unfair. (U.S. Const. Amends. V, VI, VHI, & XIV.) A. Facts in Support. Asdiscussed supra, Andrea Torrestestified at the punishment phase regarding an alleged rape by appellant. (17 RT 4044-4101.) The defense filed a “Penalty Phase Jn Limine Motion Concerning Uncharged Rape of Andrea Torres.” (5 CT 1552-1560.) The motion began by discussing the extensive efforts by defense counsel Linda Epley to obtain information regarding this incident;which occurred in-San Franciseo. (5-CF-1553.)-.-- -.-- ~~ i. Trial error in the initial ruling that the prosecution had no obligation to turn over the Torres rape information. The court discussed the rape evidence andheld that nonotice had to be given. The court interpreted the statute (190.3) as requiring only that some “effective notice” of some kind be given. (16 RT 3814-3816.) The court held that a law enforcement agency not involved in the instant prosecution (here, the San Francisco District Attorney’s office) is not part ofthe prosecuting team that has an obligation to turn over the evidence. The court reasonedthatas the -181- San Francisco District Attorney’s office is not part of this case, “[s]o I don’t believe there is any violation of the discovery statutes by the inability of the District Attorney’s Office of this kind to produce the police reports involved in this case 30 days beforetrial.” (16 RT 3816.) Defense attorney Linda Epley objected that she has never been advisedofthe circumstances, date, or parties presentat this incident. She stated that the prosecuting district attorney knew that the San Francisco district attorney had the evidence and they were the investigating agency. (16 RT 3820.) The prosecutor admitted that he received the report in 1998 but then apparently lost it and nobody went to San Francisco to get it. dd.) Mr. Sequeira stated that he had an obligation to turn over only materials in his possession or in the possession ofany part of the prosecuting team. (16 RT 3821.) He also admitted he had the police report earlier but “continual attempts to findit in his records have been unsuccessful...” He may actually neverhave hadit, accordingto the court, “[a]nd so I don’t believe theyreally had it.” (16 RT 3821.) Thecourt stated thatifthere was an issue with regard to the rape evidence, the remedy would be to continuethecase, not exclude the evidence. (16 RT 3822.) As required by the Supreme Court of the United States in Brady v. Maryland (1963) 373 U.S.83, the State had a continuingobligation to reveal ~182- the evidenceit possessed regarding the incident with Ms. Torres. ii. Trial error in admitting the rape evidence. The defense movedto exclude the evidencerelating to the alleged rape ofMs.Torres (5 CT 1552-1560) but the motion was denied andthe jury heard Ms.Torrestestify at the punishmentphaseofappellant’s trial. Her testimony was opposed onthe basis that Penal Code 190.3(b), which allowed evidence in aggravation ofcriminal activity to be introduced, did not coverthis alleged attempted rape. (/d.) The defense cited People v. Rodrigues (1994) 8 Cal. 4th 1060, 1169 for the proposition that Penal Code section 190.3(b) is limited to conductthat violates a penal statute. The statute limits admissibility to only that evidence which demonstrates the commission ofan actual crime. (People --y-Phillips(1985) 41 Cat.3d29, 72.)-Fhedefensearguedthatthe minimal. facts in the report of the San Francisco Police Department (see 5 CT 1561- 1563) “do not provide enough information about the incident to determineif the events involve a crime, a statutory rape as defined in Penal Code section 261.5 (which would not qualify as Penal Code 190.3(b) evidence)or a forcible rape as described in Penal Code 261" which would qualify. (5 CT 1559-1560.) Appellant contends the court erred in denying this motion and admitting this evidence, for these reasons. -183- B. Argument. A capital murdertrial is not a game. Thestate's obligation is to do - justice, not to seek the short-term victories of gamesmanship. (Berger v. United States, supra, 295 U.S. 78, 80.) It is a fundamental tenet of constitutional criminal procedure that "the government must turn over evidencein its possessionthat is both favorable to the accused and materialto guilt or punishment." (Pennsylvania v. Ritchie (1987) 480 U.S.39, 57 (citing United States v. Agurs (1976) 427 U.S. 97 and Brady v. Maryland, supra, 373 U.S. 83, 87.)) The materiality requirement ofBrady is judged by whetherthere is a "reasonable probability that, had the evidence been disclosed to the defense,the result ofthe proceeding would havebeendifferent. A 'reasonable probability’ is a probability sufficient to undermine confidence in the outcome." (United States v. Bagley (1985) 473 U.S.667, 682.) The defendant meetsthis burden ifhe showsthat the suppressed evidence could have created a reasonable doubt -- either as to the defendant's guilt or as to whether the death penalty would have been imposed -- that did not otherwise exist. (Agurs, 427 U.S. at 112; McDowell v. Dixon (4th Cir. 1988) 850 F.2d 740.) The State failed to timely provide the information on this alleged rape to the defense, which constitutes the suppression of material evidence which “could reasonably be taken to put the whole case in sucha differentlight as to -184- undermine confidence in the verdict.” (Kyles v. Whitley (1995) 514 U.S. 419.) Thetrial court erred in failing to suppress this evidence. i, The Materiality Standard. In Brady v. Maryland, supra, the Supreme Court held that the prosecution’s suppression of evidence favorable to a defendant violates due process where the evidenceis materialeither to guilt or to punishment./d.at 87. Under Brady and its progeny, a proceeding is rendered fundamentally unfair if: (1) the prosecution suppressed favorable evidence; and (2) the evidence was material to either guilt or punishment. (Kyles v. Whitley, supra, Bagley, supra, 473 at 683; Brady, 373 U.S. at 87; Blackmonv. Scott (Sth Cir. 1994) 22 F.3d 560, 564.) The Court has rejected any distinction between impeachment and exculpatory evidence for purposes of Brady analysis. (Bagley,473-U.S. at 677;Gigliov. UnitedStates(1972)405.U.S.150,154.) Evidenceis material “if there is a reasonable probability that, had the evidence been disclosed, the result of the proceeding would have been different.” (Kyles, 514 U.S. 419; Bagley, 473 U.S. at 682.) Here, although the information wasfinally disclosed, it was untimely, and appellant’s defense was unableto properly prepare forit, either with the juror questionnaires or in voir dire. Thetrial court erred in ruling that the prosecution had no duty to turn over the evidence which wasin their constructive possession and also in -185- allowing the prosecution to present it without any penalty. The Brady and Kyles analysis applies equally here, as the untimely disclosure prejudiced | appellant. Harmlesserror analysis is not applicable to Brady violations. (Kyles, 514 U.S. at 435.) The Court stated that “once a reviewing court applying Bagley has found constitutional error there is no need for further harmless error review.” (/d.) The Kyles court held that “the individual prosecutor has a duty to learn of any favorable evidence known to the others acting on the government's behalfin the case.” (Id. at 435.) In other words, the prosecutor cannot ignore information gathered by anotherpolice agency, here the San Franciscodistrict attorney, to duck his duty to disclose favorable information to the defense. The materiality standard is satisfied here because of the importance of the alleged rape as to the punishmentphase ofthe trial. An alleged rape would have been seen as important evidence of callousness and brutality. The untimely disclosure meantthat the defense was not affordeda fair opportunity to decide whether the defendant should take the stand to denyit, as there were no other witnesses. Additionally, the defense wasnot allowed to question the jury as to the possible impactofthe incident. Reversal is required. -186- IX. APPELLANT’S TRIAL WAS CONDUCTED IN AN INHERENTLY PREJUDICIAL ATMOSPHERE AS IT COMMENCED ON SEPTEMBER12, 2001. Appellant’s conviction, death sentence, and confinementare unlawful and were obtained in violation of his rights under the Due Process Clause of the Fifth Amendment, the Assistance of Counsel Clause of the Sixth Amendment, the Cruel and Unusual Punishment Clause of the Eighth Amendment, and the Due Process, Equal Protection, and Privileges and Immunities Clauses of the Fourteenth Amendment, as well as his corresponding rights underarticle I, sections 7, 8, 15, and 17 ofthe California Constitution, because appellant’s jury was empaneled on September12, 2001, one dayafter the horrific events of mass destruction and murderat the World Trade Center and the Pentagon of 9-11 (September 11, 2001). ---~ A, --- -Faets inSuppert.---—- - — — - Jury selection lasted from September 12, 2001 until September 19, 2001. Trial commenced on September 24, 2001. The intense pro-government patriotic fervor generated by this traumatic event meant that the defense was operating undera tremendousdisadvantageboth in attemptingto discredit the State’s case for appellant’s guilt and in opposing the State’s request for the death penalty. Someofthe jurors had actual connections to the events of 9-11. Juror -187- No. 2 was asked aboutthe events in New Yorkandsaid he knewsix people in New York. (7 RT 1483.) He made an analogy to the events in Oklahoma City: “Certainly, New York, OklahomaCity...” Death was an option: “T could probably struggle with that.” It would be difficult.” dd.) Other referencesto the events of9-11 occurred. Potential juror Nicholas Bogatinoff: stated that “[y]ou must remember wefilled these out after a pretty horrible thing.”[the events of 9-11] (8 RT 1775.) B. Argument. The due processclause of the Fourteenth Amendment guarantees the right of state criminal defendants to be tried by an impartial jury. The Fourteenth Amendmentincorporates the essence ofthe Sixth amendmentright to betried “by a panel ofimpartial ‘indifferent’ jurors [whose] verdict must be based upon the evidence developedat the trial.” (/rwin v. Dowd(1961) 366 U.S. 717.) As Chief Justice Earl Warren noted in his concurrence in Estes v. Texas (1965) 381 U.S. 532, 552 (Warren, C.J., concurring) due process requires the courts to safeguard against“the intrusion offactors into thetrial process that tend to subvert its purpose.” Jd. at 560. Specifically, the courts must guard against “the atmosphere in and around the courtroom [becoming] so hostile as to interfere with the trial process, even though...all the forms of trial conformedto the requirementsof law...” (Jd. at 561; Woods v. Dugger, -188- (11th Cir. 1991) 923 F.2d 1454, 1456-57.) Asthe leading case of Sheppard v. Maxwell (1966) 384 U.S. 333 observed,“legaltrials are not like elections, to be won throughthe use ofthe meeting-hall, the radio, and the newspaper.” (Sheppard, at 350, quoting Bridges v. State of California (1941) 314 U.S. 252, 271.) A defendant is entitled to a fair trial “in a public tribunal free of prejudice, passion, excitement, and tyrannical power.” (Sheppard at 350.) There is the requirementthat “the jury’s verdict be based on evidence received in open court, not from outside sources”, Sheppard, at 351, and the “prejudice from such material ‘may indeedbegreater’ than whenit is part ofthe prosecution’s 999 evidence‘for then it is not tempered by protective procedures’” (/d., quoting Marshall y. United States (1959) 360 U.S. 310, 313.) Juror statements “that [they] would not be influenced by the newsarticles, that [they] could decide the case only on the evidence of record, and that [they] felt no prejudice against petitioner as a result of the articles” are not considered dispositive. (Sheppard, at 351.) In Estes v. Texas, supra, the Supreme Court set aside a conviction despite the absence of any showingofprejudice. As the Court said in Estes: [i]t is true that in most cases involving claims of due process deprivations we require a showing ofidentifiable prejudice to the accused. Nevertheless, at times a procedure employed by the State involves such a probability that prejudice will result -189- that it is deemed inherently lacking in due process. (Ud., at 542-43.) Normally, a showing ofeither actual or inherentprejudice is required in order to prevail on a claim of denial of a fair trial. (Holbrook v. Flynn (1986) 475 U.S. 560; Irvin v. Dowd (1961) 366 U.S. 717; Woods v. Dugger (11th Cir. 1991) 923 F.2d 1454, 1457.) The test for inherent prejudice is “not whetherjurorsactually articulated a consciousnessofsome prejudicial effect, but rather whether ‘an unacceptablerisk is presented of impermissible factors cominginto play.’” (Holbrook v. Flynn, 475 U.S. at 570, quoting Estelle v. Williams, (1976) 425 U.S. 501.) Here, the prejudice came from the huge impactof the 9-11 attacks on New York andthe Pentagon onall Americans,as it was certainly the defining and mosttraumatic momentofthis century to date. This prejudice wasentirely separate from and in addition to the unfavorable publicity arising from this particular case. Aside from the impact of the media reports discussed elsewhere herein, the terrorist attacks added anotherprejudicial factor to the equation: that the atmosphere immediately post 9-11 was extremely pro- government, pro law-and-order, and thus pro-prosecution and hostile to a defendant charged with a home-invasion murder. Underthese circumstances, appellant’s trial began on certainly the most inauspicious date imaginable. Becauseofthese prejudicial external events, it should have been continued. -190- X. THE TRIAL COURT ERRED IN VOUCHING FORA PROSPECTIVE JUROR’S INCONSISTENT ANSWERS. Appellant’s conviction, death sentence, and confinementare unlawful and were obtained in violation of his rights under the Due Process Clause of the Fifth Amendment, the Assistance of Counsel Clause of the Sixth Amendment, the Cruel and Unusual Punishment Clause of the Eighth Amendment, and the Due Process, Equal Protection, and Privileges and Immunities Clauses of the Fourteenth Amendment, as well as his correspondingrights underarticle I, sections 7, 8, 15, and 17 ofthe California Constitution, becausethetrial judge endorsed the inconsistent comments of a prospective juror. A. Facts in Support. In front ofthe panel, the trial court questioned Michael Bernard Jr. who had written disqualifying answers on his questionnaire. In that questionnaire, he wrote that he was not willing to consider “psychological, psychiatric or other mental health testimony regarding a defendant in determining the appropriate sentenceat the penalty phase” adding “‘crime=punishment.” (2 JQ 503.) This prospective juror also wrote that he was unwilling to consider any background information or social history in considering the punishment, adding “I don’t care for a history lesson.” (2 JQ 503.) He thoughtthat a life sentence was worse than death becauseofthe cost to taxpayers. (2 JQ 503.) -191- This prospective juror wrote “maybe”to the question of whether “it would be hard for [him] not to require the defense to prove the defendantis innocent?” (2 JQ 494.) He also wrotethat “[i]f a person committeda crime, they should be punished without regard to mental health....It should not matter that a person is drunk, stoned, high, enraged or had a bad day....[if they were] it is reasonable to assume they might temporarily revert to that state and perform in the same way.” (2 JQ 498.) He was “strongly against” life sentences without the possibility of parole and thought“[i]f a personis to be caged forlife, why not save the taxpayers money and execute them in 5 years.” (2 JQ 501.) He thoughtall the possibilities for a death sentence listed in Question 113 should result in an automatic death penalty. (2 JQ 502.) This prospective juror also thoughtthat “crime, drugtraffic and gangsare out of hand. The current jail/punishment system is outdated, over rated, and obviously not a deterrent to crime...We need more judges/courtrooms and better processes to stem the crime waves.” (2 JQ 487.) This prospective juror then repudiated these answersto thejudge when questioned at voir dire. The trial court then congratulated him for being honest. There were two prejudicial effects: 1) the panel heard it and were improperly influenced; and 2) it had a chilling effect on later defense impeachmentofthis juror. -192- In his questioning in front of the panel, Michael Bernard, Jr., who workedat a consulting firm, seemedinitially very hesitant to serve as a juror in this matter. (7 RT 1523.) He was concerned about the viability of his company in his absence (7 RT 1524) andstated that it was conceivable the firm could “not cover” without him. (7 RT 1525.) He admitted that he had views about the criminal justice system, but “could follow the law.” (7 RT 1526.) The idea that the defendant does not have to present any evidence was “problematic” with him. (/d.) At voir dire, he said he could listen to psychiatric evidence, despite saying the opposite on his questionnaire. He wrote “I don’t care for a history lesson”but at questioning he claimed he could follow the law. (/d.) The court then thanked him andsaid “J believe you tried to answer everyquestion; notwithstanding the-pressures-ofwork, and Ithank you very-- much. AndI appreciate your honesty.” (7 RT 1529.) Defense counsel had a conferenceat the bench and objectedthat “he’s being congratulatedfor giving these answersthat I think are extraordinarily inconsistent with what he’s done, and now I’m supposed to be attacking this guy after the court has congratulated him.” (7 RT 1530.) B. Argument. The trial court’s commentshad the prejudicial effect ofsanctioning this -193- prospective juror’s improper comments regardingthe duty ofthe defendantto produceevidence and his unwillingnessto listen to the defendant’s “history.” As defense counsel pointed out, this served as an endorsement of these comments to the remainder of the panel who could have thoughtthe judge agreed with this opinion. The United States Supreme Court has conferred upontrial courts the final authority for ensuring that a criminal defendant receives a fair trial. United States y. Frazier (1948) 335 U.S. 497, 511, emphasis added [“duty reside[s] in the court to seethat the jury as finally selected is subject to no solid basis of objection on the score of impartiality.”].) Moreover, a biased tribunal is one of the few “structural errors”in a trial that is not subject to harmless error analysis. (Arizona v. Fulminante (1991) 499 U.S.279, 309-310; United States v. Nelson (2d Cir. 2002) 277 F.3d 164, 204,fn. 48 [right to an impartial adjudicator, whether judge or jury, can never be treated as harmless, and is structural error]; Standen v. Whitley (9" Cir. 1993) 994 F.2d 1417, 1422 [structural error is error which is “destructive of such basic elements as an impartial tribunal”].) Relying on these principles, federal courts have repeatedly required trial judges to act sua sponte rather than allow a biased juror to be sworn. (Miller v. Webb (6" Cir. 2004) 385 F.3d 666, 675 [when confronted with a biased juror, the judge must, either swa sponte or upon a -194- motion, dismiss the juror for cause, citing Frazier, supra]; Hughes v. United States (6" Cir. 2001) 258 F.3d 453, 463 [trial court and counsel ultimately share responsibility for removing biased jurors]; Tyler v. Nelson (10" Cir. 1999) 163 F.3d 1222, 1229 [‘Trial courts are responsible for guaranteeingthat juries are fair and impartial.”]; United States v. Torres (2d Cir. 1997) 128 F.3d 38, 43 [trial judge has duty, either sua sponte or upon counsel’s motion, to dismiss prospective jurors for cause].) In appellant’s case, with or without an objection by oneofthe parties, the trial court had a duty to see that the trial was free from structural error — in this case, a biased tribunal. (Johnson v. Armontrout (8" Cir. 1992) 961 F.2d 748, 756 [‘Thepresence of a biased jury is no less a fundamentalstructural defect than the presenceofa biased judge.”]; United States v. Wiles (10"Cir. 1996) 102 F.2d 1043, 1057 [“Due to the nature of structural error, whether a defendantobjects .. . is simply irrelevant.”]; Johnson, supra, 961 F.2d at 754 [a defendant whofails to objectto a juror is only without a remedy ifhefails to prove actual bias]; Ford v. United States (5" Cir. 1953) 201 F.2d 300, 301 fan objection to a jurorraised after the verdict is too late unless actualbiasis shown].) -195- XI. THE JURY SELECTION PROCEEDINGS WERE BIASED IN FAVOR OF PRO-DEATH JURORS. A. Facts in Support. The following prospective and actual jurors should have been dismissed, excluded or disqualified: 1) Juror L.M.D.(identified by initials because he/she actually served on appellant’s jury) had several disqualifying answers in her juror questionnaire. This juror had heard, from newspapersandtelevision,that “[a] Lafayette house was robbed and the womanat the house wasshotand killed by the robbers”and “assumed whatI wasreading/hearing [about the case] was for the most part accurate.” (3 JQ 928.) This juror expressed racist viewsthat some racial or ethnic groups “tend to be more violent than Whites and/orare more inclined to commit crimes” adding “[t]hose who come from poorer backgrounds or where education is not encouraged.” (3 JQ 931.) The juror thoughtthe death penalty “[i]s correct and just for victims’ families and tax- paying citizens who support the justice system.” (3 JQ 940.) Life without parole “is costly to victims’ families and tax-paying citizens.” (3 JQ 941.) “Life imprisonment is extremely costly. However there are numerous criminals who live on death row without the sentence ever being carried out either!” (3 JQ 942.) At voir dire, this juror again expressed notions about expert testimony -196- and felt that it “was not always correct.” (7 RT 1639.) Based on the questionnaire, there was a issue in the court’s mind as to whether the juror would “listen to psychiatric, psychological testimony, mental health testimony.” (7 RT 1639.) This juror’s questionnaire answersalsoraised issues about a willingness to consider “the background and social history of the defendant.” (7 RT 1640.) This juror also thought there were some cases where he “would always impose the death penalty.” (7 RT 1641.) 2) A juror was identified by the court as “Juror No. 3" because she actually served on appellant’s jury. (7 RT 1484.) This juror had manypro- prosecution answers both in the questionnaire andat voir dire. This juror was the victim of both rape and a mugging. (1 JQ 143.) As a crime victim, Juror No. 3 wrote that “I would be sympathetic to victim.” (1 JQ-144.)- Thisjuror-hadheard-aboutthecase throughnewspapers-andwrote — that “they took the BART and wentin an open garage. She was found dead in her home.” (1 JQ 148.) Asa result, “we need to keep garage door closed.” (Id.) The juror’s attitudes about the case before comingto court for jury duty were“it is a tragedy...It is a terrible tragedy but every person deservesa fair trial and is innocent until proven guilty.” (1 JQ 149.) Juror No. 3 was questioned about a brother in New York, who used to be a defenseattorney for the New York Police Department. (7 RT 1486-1487.) -197- Juror No.3 did not think it would affect him/her. (7 RT 1487.) Next the judge focused onthis juror’s answer to Question No. 31, where he indicatedthat she was acrimevictim. (7 CT 1486.) Juror No. 3 wrote “I would be sympathetic to the victim.” (/d.) The court’s restrictions on voir dire did not allow defense questioning on the moretroubling questionnaire answers. 3) Prospective juror Robert Ripley had several questionnaire answers which indicated he would not consider a defendant’s background. He was “not sure” whetherthe details of the murder wouldso influence his emotions as to render him ableto fairly and impartially evaluate the evidence. (2 JQ 800.) This prospective juror also believed that death should be mandatory for certain crimesas “there are circumstances wherethe crime committed against society is so heinous thosethat are guilty should not live.” (2 JQ 804.) He believed the death penalty servedto “keep society safe from those who commit crimes againstit.” 2 JQ 805.) Mr. Ripley also believed there were several crimes which deserved the death penalty in all cases. (2 JQ 806.) He also wrotethat he would not consider backgroundinformation, a defendant’s social history or childhood in determining the appropriate sentence, adding that he did not “believe childhood events or social history have a bearing on the penalty phase.” (2 JQ 807.) At voir dire, Mr. Ripley reiterated his disqualifying opinions and again -198- stated he was not willing to consider childhood and background information as mitigating. (7 RT 1509.) Hestated that “I don’t believe childhood events or social history has (sic) a bearing in the penalty phase.” (7 RT 1509.) Despite further questioning, he repeated his view that background should not be considered It’s very difficult for me. To explain...to give you a background on mythinking, my thinkingis the defendant, if found guilty of first degree murder underspecial circumstances, I consider that a heinous crime as such. I don’t believe that having someone’s social or economic background should be viewed or weighed in looking at the penalty phase. (7 RT 1510-1511.) Again,after yet more coaxing,he wasstill unsure,stating “I think I can do it” (7 RT 1512) but then again qualified it by stating that he might be affected by gory photos. After yet more questioning, he wasbasically back wherehestarted and not-sure he could be fair...(7 RT 1513.).Thejuror then revealedthat he wasa crimevictim and “moreaptto lookat the victim’s right, a heightenedsensitivity to them.” (7 RT 1514.) After a break in his questioning, Robert Ripley was brought back for further questioning, butstill insisted that he would not give consideration to the defendant’s background. (7 RT 1559.) Hestated that he could not promise to considerit (7 RT 1560) andit would affect his ability to be impartial. (7 RT 1561.) After another break in the questioning, he was broughtbackyet again. -199- During further questioning by the prosecutor, Mr. Ripley stated that he would consider a person’s criminal background in the penalty phase. (7 RT 1566.) - But as for the social and family background, which would possibly be mitigating factors, he was much morereluctant, stating, “I see that it is the law” to consider both backgrounds. (7 RT 1567.) As he admitted, “I view these in two different contexts.” (7 RT 1568.) Finally, he agreed he would reluctantly consider the defendant’s social background. (7 RT 1569.) However, he once again qualified it by saying that “I don’t see it (social background) as important an element as I would the others.” (7 RT 1571.) Then the judge posed a leading question, ending with “do you see the difference?” Despite this coaching,this juror wasstill “wrestling” with giving social background any weight. (7 RT 1572.) The defense then challengedthis prospective juror for cause, but it was denied. (7 RT 1578.) In explanation, Judge Spinetta stated that Ripley is “very careful...is aware that he needs to be open-minded”despite a litany of answersthat indicated the opposite. (7 RT 1579.) Defense counsel than gave a long objection as to this denial of the challenge for cause, stating that the only reason this juror changed his answers was because District Attorney Sequeira cross-examined him. (7 RT 1580.) Judge Spinetta stated that he did not badger him. -200- 4) Juror No. 1 had heard about the case in the media and asa result, was unsure whether she could be fair. (7 RT 1626; 1 JQ 80-81.) In the questionnaire, media exposure through newspapers, people at work, a co- worker, television, radio and people who knew the victims wereall listed. (1 JQ 80.) Juror No. 1 was quite knowledgeable aboutthe case, as the co-worker knew the victim’s family, their children went to school together and “they shared driving responsibilities for extra-curricular activities e.g. sports.” (1 JQ 80.) Juror No. | also wrote in her questionnaire that [w]hoever did the crime were walking by [the] home, maybe walking from BART,saw the open garage w/SUV andsawit as an opportunity to take the SUV...It must have been totally devastating for the daughter to find her mother dead. We spoke about the efforts to find whoeverkilled the victim ofthat...I was horrified aboutit at the time. I kept reminding my husbandto close the garage door because hehas a habit of leaving it open when he walked our dog. Why give someone an opportunity to take anything from you or possibly harm you in any way...It’s humannatureto feel a bit biased towards someone whotakes a humanlife...because they want to take a car... (2 JQ 80-81.) At voir dire, Juror No. 1 wasstill unsure and stated only that she “thinks” she could do it. (7 RT 1627.) 5) Prospective juror Quirino Milanio at first stated that he would require the defendant to prove his innocence and then confusingly reversed that opinion and stated that he would not. (7 RT 1633.) Although clearly confused (7 RT 1634), the court then coaxed him to the “right” answers and -201- he eventually stated that he could vote “not guilty.” (7 RT 1635.) He wasalso led to the opinion that he would not considerthe costs ofimprisonment (7 RT 1636.) Although he wrote on his questionnaire that he would not consider mental health testimony (2 JQ 773), the court told him he must. (7 RT 1636- 1637.) B. Argument: Constitutional standards mandated the dismissal of these actual and prospective jurors. Althoughthetrial court on occasion phrased its rulings on challenges for cause using the Wainwright v. Witt (1984) 469 U.S. 412, 424 language of “prevent[ing] or substantially impair[ing] the performance”ofajuror’s duties, in fact the only jurors who were excused for cause were those whose biases were so unmistakably expressedthatthe trial court was,in reality, following a super- Witherspoonstandard, in violation of Wainwright v. Witt. The Court required more thanbeing “substantially impaired.” The only jurors who were excused for cause were those whostated on the record unequivocally that they would not follow the law. This error infected the entire voir dire and forced appellant’s trial counsel to use peremptory challenges to removethose prospective jurors who specifically had stated their bias, prejudice or inability to follow relevant aspects of the law. The endresult was that the jury pool was biased toward death, and the ultimate jury selected was biased toward death in violation of -202- the Fifth, Sixth, Eighth and Fourteenth Amendments. It violated the basic premise that “[t]he process of voir dire is designed to cull from the venire persons who demonstrate that they cannotbe fair to either side of the case.” (Morgan y. Illinois, supra, 504 U.S. 719, 734.) It is well established that a juror whose attitude towards the death penalty prevents him or her from making an impartial decision as to the defendant's guilt, or as to the penalty to be imposed, is subject to exclusion for cause. (Morganv.Illinois, supra, 504 U.S. 719; Wainwright v. Witt, supra, 469 U.S. 412.) While many cases have adopted language from Witherspoon v. Illinois, supra, 391 U.S. 510, 522, n. 1, stating that a juror’s feelings must be so strong as to make it unmistakably clear that they would automatically vote against the imposition of capital punishment without regard to any evidence, Wainwright-v. Witt—supra, established-that-the standard. is not-so- stringent. Rather, a juror is subject to exclusion when his or her capital punishmentviews“prevent or substantially impair the performanceofhis [or her] duties as ajuror in accordancewithhis instructionsand his oath.” (Adams v. Texas, supra, 448 U.S. 38, 45.) Morganv.Illinois, supra, 504 U.S. 719 makesit clear that the trial court should have excusedtheseactual and prospective jurors. In Morgan, the trial court had refused a defense request to ask prospective jurors whether they -203- would automatically vote to impose the death penalty if they found the defendantguilty. The Court reversed, holding thatthe trial court's refusal to | inquire into this area violated the due process clause of the Fourteenth Amendment because (1) a juror who will automatically vote for the death penalty in every case will fail in good faith to consider the evidence of aggravating and mitigating circumstancesand to determine whether the latter is sufficient to preclude imposition ofthe death penalty and(2) ifvoir dire was not available to exposethe foundations ofthe defendant’s challenge for cause against automatic deathjurors, the defendant'sright not betried by such jurors would be meaningless. (Morganv.Illinois, supra, 504 U.S. 719.) Under Morgan,a juror’s recital of an alleged ability to “listen to both sides” does notjustify the denial of a challenge for cause. “Doubts regarding bias must be resolved against the juror.” (Burton v. Johnson (10" Cir. 1991) 948 F.2d 1150, 1158; United States v. Gonzales (9" Cir. 2000) 214 F.3d 1109, 1114; United States v. Nell (5" Cir. 1976) 526 F.2d 1223, 1230.) Thetrial court appeared to believe that as long as a juror could be persuaded to say that they would consider mitigating evidence, then he or she was capable ofbeing impartial. Thesejurors were nonetheless “substantially impaired.” even ifthey could be coaxedinto saying that they would considermitigating factors. Such a position was the functional equivalent to that discussed in Morgan. The -204- Court rejected the view that jurors who would automatically rule for death are constitutionally permissible: ... [SJuch jurors obviously deem mitigating evidence to be irrelevantto their decision to imposethe death penalty: they not only refuseto give such evidence any weightbutare alsoplainly saying that mitigating evidence is not worth their consideration and they will not consider it. While Justice Scalia's jaundiced view of our decision today may best be explained by his rejection of the line of cases tracing from Woodson v. North Carolina and Lockett v. Ohio .. . , itis a view long rejected by this court. (Morganv.Illinois, supra, 504 U.S. at 736 (citations omitted). Such a “merciless juror” “will not give mitigating evidence the consideration that the statute contemplates.” (/d. at 738.) In California, ajuror whostates he or she will not consider mitigating evidence is a juror whois explicitly stating he or she will not follow the law, and a cause challenge to such a juror should be granted. (People v. Coleman (1988) 46 Cal.3d 749, 768.) In People v. Easley (1983) 34 Cal.3d 858, 877-880,this Court madeit clear that mitigating evidence could not be limited to facts that lessen the gravity of the crime, but mustalso includefacts pertaining to the background of the defendant, as the United States Supreme Court has long required. Necessarily, then, a juror's ability to be fair and impartial on penalty is "substantially impaired"ifthe juroris willing to consider only mitigating facts about the crime, but not about the defendant's background. A juror with such -205- a state of mindis "substantially impaired," within the meaning of Witt. (See People v. Coleman, supra, 46 Cal.3d at 767-768; see also Morganv.Illinois, supra, 504 U.S. 719.) C. The trial court’s duty to ensure an impartial panel. As discussed supra in the previous issue, the United States Supreme Court has conferred upontrial courts the final authority for ensuring that a criminal defendantreceivesa fair trial before an impartial jury. (United States v. Frazier, supra, 335 U.S. 497, 511, emphasis added[“duty reside[s] in the court to see that the jury as finally selected is subject to no solid basis of objection on the score of impartiality.”].) In appellant’s case, with or without an objection by oneofthe parties, the trial court had a duty to see that thetrial was free from structural error — in this case, a biased tribunal. (Johnson v. Armontrout (8" Cir. 1992) 961 F.2d 748, 756 [“The presence of a biased jury is no less a fundamental structural defect than the presence of a biased judge.”|; United States v. Wiles (10" Cir. 1996) 102 F.2d 1043, 1057 [“Dueto the nature of structural error, whether a defendant objects . . . is simply irrelevant.”|; Johnson, supra, 961 F.2d at 754 [a defendant who fails to object to a juror is only without a remedyifhe fails to prove actual bias]; Ford v. United States, supra, 201 F.2d 300,301 [an objection to ajuror raised after the verdict is too late unless actual bias is shown].) -206- While the federal decisions previously cited are unanimousin holding that the trial judge muststep in, decisions of this Court at first appear to hold otherwise. (See e.g., People v. Hillhouse (2002) 27 Cal.4th 469 [defendant must exhaust peremptory challenges in order to preserve for appeal thetrial court’s denial offor cause challenges]; People v. Staten (2000) 24 Cal.4th 434, 454 [failure to raise issue below waivesthe issue for appeal]; People v. Bolin (1998) 18 Cal.4th 297, 316; People v. Kipp (1998) 18 Cal.4th 349, 365 [trial court has no sua sponte duty to remove jurors for cause; defendant may not raise on appealissues ofjury compositionifhe has not exhausted peremptory challenges].) In Hillhouse, supra, the defendant argued that the trial court improperly deniedfiveofhis challenges for cause. However, he acceptedthe jury after having used only 11 of his peremptory and only oneof the five objectionable jurors- actually- served -on- the jury.__This Court foundthat althoughthe seatedjuror gave some answers which might have causedthetrial court to remove him, he gave other answers that suggested he was qualified, and ultimately he agreed to listen to the evidence and render an impartial decision based only on the evidence and the court’s instructions. Those responses provideda sufficient basis for the trial court’s decision to deny the challenge for cause. (Hillhouse, supra, 27 Cal. 4" at 488-489.) Likewise, in Staten, supra, three jurors who sat on the jury were -207- challenged forthefirst time on appeal. None ofthe three were challenged for cause or with peremptory challenges and the defendant had peremptory challenges remaining when he accepted the jury panel. Although Staten claimed on appealthatthetrial court should have removedthese jurors onits own motion, the record simply did not support that claim. Despite written responses which strongly favored the death penalty, all three jurors agreed during voir dire that they would weigh the evidence, follow the court’s instructions, and give due consideration to both possible penalties. (Staten, supra, 24 Cal4th at 452-454.) In light of that record, this Court held that “none of the jurors expressed beliefs regarding the death penalty .. . that would necessarily subject them to excusal for cause.” (/d. at 454.) More recently, this Court confirmed once again that in order to demonstrate that the erroneousinclusion ofajuror violated a defendant’s right to a fair and impartial jury, the defendant mustestablish one of two things: either that he was deprived of a peremptory challenge he would haveused to removeajuror whoparticipated in the case or “that a biasedjuror actually sat on the jury that imposed the death sentence.” (People v. Blair (2005) 36 Cal.4th 686, 742, quoting Ross v. Oklahoma(1988) 487 U.S. 81, 85, emphasis added; see also People v. Ramos (2004) 34 Cal.4th 494, 519 [with respect to juries “courts tolerate some imperfection short of actual bias.”].) The seating -208- of an actually biased juror is a defect which courts, including this Court, have nevertolerated. In appellant’s case, the trial court was fully aware of these jurors’ disqualification and the court’s own responsibility for excusing jurors who admit they will not consider the defendant’s backgroundor childhood, have been unduly influenced by the media, or would not consider mental health issues. Such jurors, such as the five discussed supra, are likely to automatically vote for death. Toillustrate this principle, the case mostnearly on point is Hughes y. United States, supra, 258 F.3d 453. In that case, prospective juror Jeanne Orman twice confirmed herbelief that because of close personalties to law enforcement, she did not think she could befair to the defendant. (/d. at 456.) Although both thetrial judge and defense counsel asked “group”follow-up questions to which Ms. Orman gave no response, no one attempted to rehabilitate her individually. The defense did notchallenge Ormannordidit exhaustits peremptory challenges, and Orman waseventually swornas ajuror. Forthefirst time in a petition for a writ ofhabeas corpus, the defendant claimed that his counsel had been ineffective in failing to strike Ormanafter she had admitted she could not be fair. Ud. at 456-457.) The Hughes court placed responsibility uponthetrial court to obtain assurances of impartiality directly from the juror after she had stated she could notbefair: -209- [Whatdistinguishes Petitioner’s case from [the cited precedent] is the conspicuous lack of response, by both counsel and the trialjudge, to Orman’s clear declaration that she did not think she could be a fair juror. The district court’s reliance on unrelated group questioningofpotential jurors on voir dire does not address the simple fact that neither counsel nor the court offered any response to Orman’s declaration or follow-up questions directed to Orman. Although the precedent of the Supreme Court and this Court makes us circumspect about finding actual juror bias, such precedent does not prevent us from examining the compelling circumstances presented by the facts of this case - where both the district court and counsel failed to conduct the most rudimentary inquiry ofthe potential juror to inquirefurther into her statementthat she could notbe fair. The [previously cited] precedentincluded key elements of juror rehabilitation andjuror assurances ofimpartiality which are absenthere. (Id. at 458-459, emphasis added.) Thetrial court still had the obligation to dismiss the juror sua sponte and the court chastised thetrial court for its “complete lapse”in carrying out its obligation during voir dire: “(1]n each case a broad discretion andduty reside in the court to see that the jury as finally selected is subjectto no solid basis of objection on the score of impartiality . . .” “Accordingly, the presidingtrialjudge has the authority and responsibility, either sua sponte or upon counsel's motion, to dismiss prospective jurors for cause.” [citation omitted], quoting. United States v. Frazier, supra, 335 U.S. 497, 511, emphasis added). “When a prospective juror manifests a prior belief that is both material and contestable . . . it is the judge's duty to determine whether the juror is capable of suspendingthat belief for the duration of the trial.” [citations omitted. ] ( Hughes v. United States, supra, 258 F.3d at 463-464, emphasis added.) Thetrialjudge had the power andthe duty to dismiss, removeor excuse -210- these five potential or actual jurors. (See, e.g., People v. Merced (2001) 94 Cal.App.4th 1024, 1028 [trial court did not err in removing juror sua sponte whenjuror expressed beliefinjury nullification]; People v. Roldan (2005) 35 Cal.4th 646, 691, confirming the powerofthetrial court to remove prospective jurors sua sponte [“Some jurors were excused onstipulation by both sides, someby the court on its own motion, and somefor cause dueto their views on the death penalty.”].) Prejudice is shown by the fact that three of these five actually sat on appellant’s jury. The trial court’s failure to act was error necessitating reversal. XI. THE TRIAL COURT ERRED IN DENYING DEFENSE OBJECTIONS TO DUPLICATIVE AND GORY CRIME SCENE PHOTOS. ~-A.~ ~~FactsinSupport.--— — Three crime scene photos wereintroduced,State’s Exhibit Nos. 39,40, and 59. The defense objected to No. 59, which showed two evidence markers. (8 RT 1959.) The defense objected to No. 59 as duplicative. All three were admitted (8 RT 1960) and the objection to No. 59 was overruled. The defense also objected to No. 103 on the groundsthat it duplicated No. 40. No. 103 was a picture of the victim with phone cord aroundher head.It was a closeup and defense counsel Egansaid the body had been moved. (8 RT 1963.) The court -211- said it should not come in. (8 RT 1964.) Mr. Egan then objected to No. 105, another photo of the victim with the cord around her neck. The court ruled that No. 105 would be admitted but No. 106 was not admitted. The court then gave a long statement as to why No. 105 should comein only in the penalty phase. (8 RT 1965.) No. 107 was a closeup ofthe same wound. (8 RT 1966.) It was not as inflammatory as 106. The defense noted that The pathologist who performed the autopsy is not going to testify because she’s moved across the country, and another pathologist who wasn’t even present is going to testify. And certainly that person isn’t going to be able to give any testimony at all regarding the appearanceofthat wound wasdifferent from some previous point in time. (8 RT 1968.) The prosecutor then admitted that “I’m highlighting every stab wound. Every stab woundis further evidence ofintent to kill, express malice.” (8 RT 1969.) Hestated that he wantedall the pictures in evidence andstated that there will be an expert to give an opinion based on the photos. (8 RT 1969.) The court admitted No. 107 but not No. 106. (8 RT 1970.) No. 108 was a photo that showedthe victim partially nude and dead. (8 RT 1971.) The defense objected on the groundsthat it was not necessary. The defense’s arguments as to Nos. 109 and 111 were similar, that it was “silding the lily.” (8 RT 1973.) The defense arguedthat there is no need to -212- show any photoat all “in order to establish the number of wounds”or the location of the wounds. They also argued that the photos were humiliating to the victim, they go beyond what happenedat the sceneofthe crime, and they provoke passion and angerin the jury. (8 RT 1974.) Prosecutor Sequeira stated that the murder was gruesomeandoriginally there were over a hundred autopsy photos. He allegedthat they are “cleanedup and antiseptic...” (8RT 1975.) The court admitted Nos. 108, 109 and 111 and 107 but asked “do we really need the head shot here?” (/d.) The court then said it would take that photo under advisement. In this consideration, the court stated that as to the “head shot,” No. 109, he would consider croppingit, so “you could still see all the back wounds.” “I maylet the whole [No.] 109 in.” (8 RT 1976.) The court stated that No. 108 was not all that prejudicial (8 RT 1977)but noted“{ajll this blood here at the bottom...1 supposeit carries a potential for some undueprejudicial value.” (8 RT 1977.) Defense counsel Eganagainstatedthat the photos were humiliating for the victim and her family. (8 RT 1978.) Some jurors wrote in their questionnairesthat they “couldn’t stand the bloody photographs,that they felt a tremendous amountof sympathyfor the family and they thoughtthis might influence them,they wereoffthe jury. They were disqualified from serving.” (Id.) The prosecutorsaid this was illogical in that the people who would be -213- affected were already disqualified. (8 RT 1979.) However, defense counsel stated that the photos would affect anybody. Thecourt observed that showing the stab woundlocationshasprobative value and prejudice has been minimized. (8 RT 1980.) Also, the court stated that cropping No. 108 would create more problems. The court held that the value ofthe photosis great: “I don’t find the prejudice.” (8 RT 1981 .) But the court also admitted that the prejudicial effect of No. 106 would be greatsoit was excluded. No. 103 was also not admitted, but the other photos were admitted, except No. 109, where the head was cropped. Defense counsel repeated their objections, so they did not have to interpose them later, based on Evidence Code section 352 groundsandalso due process and fairtrial grounds. (8 RT 1982.) B. Argument. “Autopsy photos have been described as ‘particularly horrible,’ and wheretheir viewing is of no particular valueto the jury, it can be determined the only purpose ofexhibiting them is to inflame the jury’s emotions against the defendant.” (People v. Marsh (1985) 175 Cal.App.3d 987, 998, quoting People v. Burns (1952) 109 Cal.App.2d 524, 541.) In Marsh, the defense objected on Evidence Codesection 352 grounds to the introduction of seven slides of autopsy photos which graphically -214- depicted the cranial injuries ofthe murder victims. The prosecutor argued that the slides were relevant to show the amountof force used to inflict the fatal blows. The slides were admitted and the defendant was convicted. On appeal, the court held that althoughthe cause of death wasthe central issue in the case, the autopsy surgeon’s testimony was adequate to makethe prosecution's point. The slides were far moreprejudicial than probative and their introductioninto evidence waserror. Similarly, in People v. Smith (1973) 33 Cal.App.3d 51, the defense objected under Evidence Codesection 352to the introductionofthree color photographs of the murdervictims, particularly one which depicted a woman’s semi-nude, mutilated bloody corpse. On appeal, the defendant alleged abuse of discretion in admitting the photos. The Court of Appeal foundthat the photos “have a sharp emotional effect, exciting a mixture of horror, pity and revulsion”andheldthatthe trial court erred in admitting them. (Ud. at 69.) In addition to violating state law, the court’s ruling deprived appellant of his federal constitutional rights to due process anda reliable trial. (U.S. Const. 5th, 8th and 14th Amends.; see Ferrier v. Duckworth (7th Cir. 1990) 902 F.2d 545 (irrelevant photographs of blood-splattered crime scene could rendertrial fundamentally unfair).) To the extent the error was solely one of state law,it nevertheless violated appellant’s right to due process by depriving -215- him ofa state-created liberty interest. (Hicks v. Oklahoma, supra, 447 U.S. 343; Hewitt v. Helms (1983) 459 U.S. 460, 466.) The conviction and death sentence mustbe reversed. XIII. THE TRIAL COURT ERRED IN VOUCHING FOR THE CREDIBILITY OF A CRUCIAL PROSECUTION WITNESS. Appellant’s conviction and death sentence were unlawfully and unconstitutionally obtained in violation of his rights under the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution and correspondingprovisionsofthe California Constitution becausethe trial court vouched forthe credibility of a crucial prosecution witness, Mr.Jason Hart. A. Facts in Support. i. The immunity agreement. The trial court granted transactional immunity to key prosecution witness Jason Hart in presenceofhis attorney, Mr. Ernest Gonzalez. (12 RT 2637.) Mr. Hart was granted the immunity ifhetestified “fully and truthfully.” (Id.) Defense attorney Ms. Egan objected to this wording because “TI don’t feel it is necessary...in having the jury be awareofthat.” (12 RT 2638.) She arguedthat if the jury was told about this agreement,“that the court is saying, ‘Soundslike it’s the truth’...” (12 RT 2640.) The court responded that the order did not address “the issueof...if and when the issue ofcredibility will be -216- raised.” (Id.) The defense respondedthat the jury should not hear that if Hart did nottell the truth, then he could be prosecuted for the crimes. (12 RT 2641.) In summary,the defense’s objection was that the jury shouldnot learn about the portion of the agreement that had to do with Hart telling the truth. (12 RT 2642.) The court admitted that the jury might give enhanced credibility to a witness whocould be prosecutedifthey did nottell the truth. (12 RT 2643.) As the judge stated, “I mean, it is reasonable that a juror could say, gee, I don’t think the person would lie, because if he’s lying, he or she could be prosecuted for these things.” (12 RT 2644.) And the court added that “I’m just telling you a reasonable inferenceis that this supports the credibility ofthe witness.” (/d.) - ~The defense thenobjectedon the basis that-thejury.would.not-know.. that there would be a subsequent determination as to whether the witness told the truth, but might think that the determination was already madeattrial, and that therefore the witness was necessarily truthful. (12 RT 2645.) The court said that was not a reasonable inference. (/d.) The court then overruled the objection. (12 RT 2646.) Jason Hart was granted transactional immunity for his testimony if he testified “fully and truthfully.” (12 RT 2637.) The immunity orderread “It is further ordered -217- that ifJason Hart testifies fully andtruthfully, he shall be granted transactional immunity coextensive with that provided in Penal Code 1324 and shall not be prosecuted.” (12 RT 2646.) At the beginning of Hart’s testimony, the jury wasinformedthathe had been granted immunity. (12 RT 2662.) Thejury was told that he ‘got a grant ofimmunity that was signed bythe court that you can’t be prosecuted...” (12 RT 2663.) Hart told the jury that it was his understandingthat in order for the grant of immunity, he was supposedtotell the truth. (12 RT 2663.) ii. Prejudice to appellant. Having the jury hear this immunity agreement wasvery prejudicial to the defense, as they wereleft with the impressionthat Hart, a key prosecution witness, wastestifying “fully and truthfully”per the agreement. Hart was the individual whoinitially led the police to suspect appellant. (14 RT 3168.) It is undisputed that when Hart initially met with the police, helied to them.(/d.) Hart was eventually arrested (14 RT 3179) as an accessory to the crime. (14 RT 3189.) The officers threatened Hart by telling him that he wasfacing the death penalty. (14 RT 3194.) During this questioning the officers told Hart that “Rockhead was involved”and Hart then told the officer that appellant was known as “Joe Rockhead.” (14 RT 3207.) At that time, the officers did not know who“Rock” was. (14 RT 3214.) Hart’s credibility as the identifier of -218- “Rock”as appellant was a keystone of the prosecution’s case. There was also immenseprejudice from Hart’s trial testimony. He not only told the jury that appellant’s nickname was Joe Rockheadbutalso stated that he had sold appellant drugsin the past. (12 RT 2665-2667, 2702.) Most importantly, he involved appellant in the murder scheme. Hart testified regarding plans he allegedly concocted with O’Brien and Snyder to rob a drug dealer in Fairfield. (12 RT 2668, 2705.) Hart told the jury that appellant volunteered for the plan to rob the drug dealer as he was broke and needed some money.(12 RT 2671.) Hart wasalso a central witness to the events of the day of the murder. Hetestified that on March 24 he wasasked for a ride to Fairfield and he refused and, along with appellant, O’Brien and Snydertried to find someone else togivethem atide. (12 RT2678.) — Hart-told thejurythat-he dropped appellant, Snyder and O’Brienoff at the Balboa BARTstation. (/d.) Later, appellantallegedly called Hart and asked to be picked upin Fairfield. (12 RT 2681.) Hart’s testimony was that he and his friend Shawn drove to the Overnighter Hotel in Fairfield (12 RT 2681), pulled into the parking lot and saw appellant with O’Brien and Snyder. (12 RT 2683.) Hart told the jury that appellant said that they had gone to Lafayette and robbed a lady. (12 RT 2686.) Healsotestified that they admitted to tying up andstrangling her with -219- a phone cord until she was dead. Despite his own admitted history oflying, the immunity agreement led the jury to believe he wastelling the truth. In actuality, Hart had abundantreasonto fabricate a story that minimized his own involvement in the murder. B. Argument. The facts summarized supra left appellant’s jury with the impression that the trial court was vouching for the truthfulness of a key prosecution witness, Mr. Jason Hart. As result, it also left the impression ofjudicial bias in favor of prejudging appellant’s guilt because the jury would havebelieved that if Hart wastestifying truthfully, appellant was involved in the murder. Even if there was no actual judicial bias here, at the very least the jury’s knowledge of the plea agreement gave them the appearanceofbias. A defendant in a criminal case is entitled to the presumption of innocence. Essential to the presumption of innocencearetherightsto betried by an impartial tribunal and to be deprived oflife, liberty or property only by due course oflaw. (U.S. Const. Amend V. VI.) A defendant’s rightto be tried by an impartial tribunal is sacrosanct, regardless of the evidence against him. (Tumey v. Ohio, supra, 273 U.S. 510, 535, 47 S. Ct. 437.) The right to an impartial judgeis so sacred that the United States Supreme Court has declared a violation ofthis right to be “structural” error. (Neder v. United States (1999) -220- 527 US. 1, 13, 119 S. Ct. 1827, 1833 (1999)(citing Tumey, 273 U.S. 510, 47 S. Ct. 437; Sullivan v. Louisiana (1993) 508 U.S. 275, 279, 113 S. Ct. 2078, 2081 (1993).) The presence of a biased judge on the benchis a structural defect in the trial mechanism. (Arizona v. Fulminante, supra, 499 U.S. 279, 309-310, 111 S. Ct. 1246.) This “structural” error has been held to be categorically immunefrom a harmlesserror analysis. (Arizona v. Fulminante, supra, 499 U.S. at 290, 111 S. Ct. at 1254.) XIV. THE TRIAL COURT ERRED IN DENYING A MOTION FOR A MISTRIAL BASED ON THE JURY OVERHEARING IMPROPER AND PREJUDICIAL REMARKSON TAPE. Appellant’s conviction and death sentence were unlawfully and unconstitutionally obtained in violation of his rights under the Fifth, Sixth, Eighth, and-FourteenthAmendmentsto theUnitedStates Constitution and correspondingprovisionsofthe California Constitution becausethetrial court erroneously denied a motion for a mistrial when the jury overheard improper and prejudicial remarks on a tape recording of a co-defendant. The remarks informed the jury that appellant had “just got out of the penitentiary.” A. Facts in Support. At the guilt/innocence phase of appellant’s trial, certain tapes of interviews of Mr. O’Brien were admitted into evidence (13 RT 3043) and -221- played for the jury. (/d.) The defense made a motion for a mistrial based on the playing of the interviews of Mr. O’Brien. (13 RT 3044-3045, 3048.) There wasnofactual dispute as to the premises ofthe motion. Page 10 lines 8 to 12 of Exhibit 110 were the concern. (13 RT 3049.) There were three incidents: 1) a reference to Mr. Perez having beenin the penitentiary that was not in the printed transcript. (13 RT 3050.) The jury heard “[h]e (appellant) just got out of the penitentiary.” These werelines 3 and 4 ofpage 93. (13 RT 3052.) Both parties inadvertently failed to omit that reference from the tapes (13 RT 3053.) The court stated that “[t]here is no gainsaying the fact, however, that the jury heard the reference to penitentiary on the tape and may haveread it also in the transcript before we substituted page 93 and 94.” (13 RT 3054.) The second problem area was speculation on the tape by Mr. O’Brien that appellant wantedto kill him. (13 RT 3056.) There was another reference that “[w]ell I believe Rock wantsto kill me right now because he knowsthat I saw him.” (13 RT 3056.) Parts of this tape were redacted for the printed transcript (page 96 line 22 through page 100 line 11) (13 RT 3057) but the prosecutor inadvertently had the jury hearcertain lines that had been redacted (13 RT 3058.) A third problem concerneda test that the police were to administer to -222- Mr. O’Brien, and in which hesaysheis pretty nervous. (13 RT 3059.) There were two referencesto a test. (13 RT 3060.) The court stated that it did not makeany difference whether the mistake was purposefulor inadvertent,“the issue remains the same.” Butit was accepted that the mistake wasinadvertent. (13 RT 3061.) With respect to the penitentiary reference (what was referred to as “problem No. 1") “there’s no question that that was both heard andreadin the transcript.” As to “problem No.3, ‘the reference to the test, was heard butit wasnotin the transcript.” (13 RT 3062.) The court stated that “[t]he area that references [the] penitentiary, there is I think little doubt that exposing a jury to a defendant’s prior criminality, directly or indirectly, presents at least a possibility of prejudicing a defendant’s case and...I think weall agree that a reference to the defendant -having—-been-in-the-penitentiary—is, -however indirectly, a reference to prior criminality...” (13 RT 3063.) The defense objected, stating that it was “inadmissible character testimony about the defendant.” (13 RT 3064.) Asto the problems about mentioning the tests, there was no reference to the results ofany test. (13 RT 3068.) The prosecutionstated that there were over 400 pages of tapes and transcripts. (13 RT 3069) and two oblique references to the “tests” in these pages, arguing that it was irrelevant and -223- harmless. (/d.) The defense stated that the penitentiary reference was prejudicial as many people always want to know the defendant’s prior record. (13 RT 3071.) “Everything [Mr. O’Brien] is doing is to make Mr. Perez out to be a bad guy, and his havingbeenin the penitentiary corroboratesthat.” (13 RT 3072.)°7 There was a dilemmain that the penitentiary reference was inadmissible but the defense did not want to highlight it by pointing outto the jury that they should ignore it. (13 RT 3074.) “The problemis, this particular mistake because it wasn’t caught could be seen as incompetenceof counsel, and I don’t know how wedealwith that issue.” (13 RT 3075.) As defense counsel Egan stated: .. I just missed them. I just flat out missed them....We both...Mr. Sequeira I think will agree...I felt very rushed in trying to get the tapes andthe transcripts completed because we knew the jury was waiting. The court had set times it wanted these things done....We endedup using an un-redactedtape with this switch maneuver that turned out to let in inadmissible evidence, even more than the ones that I had missed on the redaction effort. (13 RT 3075.) Defense counsel addedthat ...1 should have come in here yesterday and said: I haven’t listened to these tapes and I can’t...we shouldn’t play them before the jury. I don’t care if they have to go home for two days. I needto list...we needto listen to the tapes before the jury 37 Appellant had been in the penitentiary for armed robbery and being an ex-felon with a firearm. (13 RT 3073.) -224- hears them to makesure there aren’t any mistakes. And I didn’t do that, and I should have. That’s how wegotinto this messin the first place...we didn’t check the unredactedstuffto see ifwe missed anything. (13 RT 3077.) The court stated that in regard to Mr. O’Brien stating that Mr. Perez wantedto kill him, the jury did not hearit and nothingto indicate they saw it in the transcript. (13 RT 3078.) Asto the “tests,” the court ruled that the jury did hear references to the “test” but not any references to what the test was about. (13 RT 3079.) The court addedthat “I am confidentthat if there was an erroratall in this [the tests] getting to the attention ofthe jury, it certainly was harmlesserror, especially in light of my admonition to them to disregard the referencesto test.” (13 RT 3080.) But as to the penitentiary reference, this was termed “problematic.” fhecourtcitedPeople v-Harris(1994) 22. Cal:App-4th 1575, at 1581, where there was a good discussion ofthis dilemma, and “harmlesserror” washeld to be the proper test. (13 RT 3081.) The question was taken under submission so that the court could first hear “all the evidence in this case, and to make a final ruling with respectto that.” (/d.) The court was inclined to admonishthe jury to disregard the referenceto the penitentiary. (13 RT 3082.) Other cases the court looked at were People v. Williams (1997) 16 Cal.4th 153, 211 and People v. Rhinehart (1973) 9 Cal.3d 139, 152. (13 RT 3083.) The defense -225- pointed outthat appellate courts use a “fait accompli” standardthattrial courts are not bound by. (13 RT 3084.) After considering the issues, the court stated that it would apply this test: “[a]ssuming the jury heard these things, is it reasonably likely that it affects the outcome?” Thisis best doneafter hearingall the evidence. (13 RT 3086-3087.) The court stated that it wanted to take it under submission until all the evidence washeard. (13 RT 3088.) It added that whether whatthe jury heard wasprejudicialor not “dependsupon howthis casetotally unfolds.” (13 RT 3089.) The motion for a mistrial was ultimately denied. B. Argument. This improperintroduction ofevidenceofastay in the penitentiary was evidencethat appellant had committed other crimes. This error violated a host of constitutional guarantees and requires that appellant’s death sentence be vacated since the erroris not subject to harmlesserror review. (See Maynard v. Cartwright (1988) 486 U.S. 356, 363-66; Godfrey v. Georgia, (1980) 446 U.S. 420, 432-433.) It is clear that the mistake here, while inadvertent, waserror harmfulto appellant. Even thoughthejury was admonishedto disregard the penitentiary reference, they should not have heardit in the first place andit would have been unrealistic to expect that they would simply put no weight on it. While -226- the court adopted a “wait and see”approachto theerror, there was nothingthat cameupattrial after the problem arosethat indicated it was simply harmless. Whethertaken either individually or cumulatively, the introduction of the “other crimes” evidence deprived appellant of a fair trial. The death sentence must be vacated. XV. THE TRIAL COURT ERRED IN ADMITTING ACCOMPLICE TESTIMONY. Appellant’s conviction and death sentence were unlawfully and unconstitutionally obtained in violation of his rights under the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution and correspondingprovisionsofthe California Constitution becausethetrial court erred in admitting extensive testimony from accomplices Maury O’Brien and Jason Hart. —_ Oo A. Facts in Support Asdiscussed in the factual summary supra, the prosecution’s case rested heavily on the testimony of co-defendant Maury O’Brien, who was also charged with the murder of Mrs. Daher. (11 RT 2430.) Mr. O’Brien denied stabbing Mrs. Daher to death on March 24, 1998, but admitted going into her house withthe intent to rob the occupants and admitted responsibility for her death. (11 RT 2431.) He admitted he was facing capital murder -227- charges and possible execution, and by testifying, he was asking for consideration not to be executed. (11 RT 2432.) In other words, his life depended onhis testimony. The prosecution simply had no case against appellant without Mr. O’Brien’s testimony. The highlights of his testimony were: 1) Twoorthree days before the murder,Jason Hart introduced O’Brien to appellant as someone who mightbe interested in a robbery andat this time, O’Brien knew him as “Rock.” (11 RT 2447.) O’Brien saw “Rock”every day in the two orthree days before the murder. (11 RT 2448.) They would buy $100 to $150 worth of cocaine at least every day. 2) On March 24, “Rock” showed up unexpectedly and it was decided they would commit the robbery that day. (11 RT 2449.) No one else had a car so they decided to take BARTto Fairfield. (11 RT 2452.) Snyder and “Rock” were looking outinto the hills and everyone decided to rob a house instead of goingto Fairfield. (11 RT 2454.) 3) They got offBART,walked up Happy Valley Road and saw a house with the garage door open. (11 RT 2466.) They wentinto the garage and “Rock”shut the garage doorwith a button. (/d.) Lee Snyder took outhis gun and O’Brien entered the house through a doorin the garage. (11 RT 2267.) 4) Thefirst thing they saw wasthe victim in the kitchen. (11 RT -228- 2469.) O’Brien said that this was a robbery. The lady turned around and started to say something but “Rock”put his hand over her mouth andhit her on the head and she went downon the floor. (/d.) 5) “Rock” said that O’Brien would have to kill the victim because O’Brien inadvertently spoke Snyder’s name. (11 RT 2475.) “Rock” came downstairs and asked her where the good jewelry was, and she led them to a jewelry box in the closet. (11 RT 2476.) 6) At somepoint the victim wastaken upstairs by Snyder and “Rock.” (11 RT 2478.) O’Brien stayed downstairs as a lookout. (11 RT 2479.) O’Brien then heard noises and wentupstairsto the large master bedroom.(11 RT 2480.) Snyder waspulling out a telephone cord and “Rock” was kneeling on the otherside of the bed “maybe holding the victim down.” (11 RT 2481.) Snyderhadhis footon thevictimrand“‘Rock” waspullingonthe cord andthe victim’s neck was bent backwards. (11 RT 2484.) 7) O’Brien was told to get a knife from the kitchen and saw “Rock” take it and stab the victim manytimes. (11 RT 2489.) 8) Then they went downstairs and drove away in the victim’s car, a Mercedessportsutility vehicle. (/d.; 11 RT 2491.) “Rock” handed O’Brien the knife and he folded it and put it in his pocket. (Ud.) “Rock” drove, O’Brien wasin the front seat and Snyder wasin the rear. (11 RT 2492.) -229- 9) They ditched the victim’s carin Fairfield andlater tried to retrieve it and headed to where “Rock”and Snyderhadleft it. (11 RT 2508.) There werepolice cars with spotlights surroundingit so they jumped a fence and ran back to a hotel. (11 RT 2509.) “Rock” called Jason Hart who came and picked them up.( Jd.) “Rock”allegedly told Hart about the murderandhis friend “Mac Shaun” who accompanied Hart. Shaun wasupset because he was now an accomplice to murderor accessory after the fact. (11 RT 2511.) 10) Inhisfirst interview with the police, O’Brien told them that Snyder, “Rock” and himself were responsible for the murder. (/d.) Accomplice Jason Hart wasalso granted transactional immunity for his testimony if he testified “fully and truthfully.” (12 RT 2637.) The highlights of Hart’s testimony were: 1) He had knownappellant his entire life, since they were kids. (12 RT 2662.) Appellant’s nickname was “Joe Rockhead”and Hart had sold him drugs in the past. (12 RT 2665-2667, 22702.) 2) On March 23, 1998, Hart went to Lee Snyder’s house with appellant. (12 RT 2665.) Snyder and O’Brien wantedto goto Fairfield and rob someone whoHart thought wasa drug dealer. (12 RT 2668, 2705.) Hart just wantedto buy the stolen goods and notbe involved in a robbery. (12 RT 2669, 2727.) O’Brien and Snyder hadnot met appellant before this and Hart -230- introduced him as Joe. (12 RT 2670.) Appellant volunteered for the plan to rob the drug dealer as he was broke and needed some money. (12 RT 2671.) 3) The next day, March 24, Hart picked up appellant and they went to Snyder’s house at about 11 or 12. (12 RT 2674.) They sat around and smoked dope and again talked aboutthe planto rob the drug dealer. (12 RT 2676.) 4) Later, appellant called Hart and askedto be picked up in Fairfield. (12 RT 2681.) Hart and his friend Shawn drove to the Overnighter Hotel in Fairfield. (12 RT 2681.) Hart pulled into the parking lot and saw appellant with O’Brien and Snyder. (12 RT 2683.) Appellant said that instead of Fairfield they had gone to Lafayette and robbed a lady. (12 RT 2686.) They also said that they tied her up and strangled her with a phonecord andthat she was dead. Hart eventually bought two rings from appellant. (12 RT 2690, 2692.) Hart then dropped appellant off at his cousin’s house. (12 RT 2691.) This summary of O’Brien and Hart’s testimony showsthat they were both accomplicesandthat the testimony wascrucial to the prosecution’s case. B. Argument. i. Accomplice testimony is inherently suspect and constitutional prerequisites to its use were not followed in this case. The Supreme Court has noted that “[t]he use of informers, accessories, -231- accomplices, false friends, or any of the other betrayals, which are ‘dirty business’ mayraise serious questionsofcredibility.” (On Lee v. United States (1952) 343 U.S. 747, 757.) Such testimony “ought not to be passed upon... under the same rules governing other apparently credible witnesses.” (Crawford v. United States (1908) 212 U.S. 183, 204.) In the case ofIn re Miguel L., (1982) 32 Cal.3d 100, 108-09,this Court noted that: [A]ccomplice testimony is ‘often given in the hope or expectation of leniency or immunity.’ (People v. Wallin, supra, 32 Cal.2d at p. 808; see also Comment, Accomplice Corroboration—Its Status in California, (1962) 9 UCLA L.Rev. 190, 192.) As a result, an accomplice has a strong motive to fabricate testimony which incriminates innocent persons or minimizes his participation in the offense and transfers responsibility for the crimesto others. Other courts have been equally skeptical about the veracity of accomplice informants. (See United States v. Baresh (S.D.Tex. 1984) 595 F.Supp. 1132, 1135 (agreement contingent upon indictments “placed far more stress upon [witness’] veracity [despite government’s requirement of truthfulness] than its gossamer frailness could withstand”); United States v. Turner, (E.D.Mich. 1979) 490 F.Supp. 583, 602 (credibility of witness more suspect whenhebelievedthat leniency is contingent uponhis testimony), afd, 633 F.2d 219 (6th Cir. 1980); People v. Green (1951) 102 Cal.App.2d 831, 838-39 (agreement premised upon conviction of defendant resulted in unfair -232- trial)). This Court has rejected the argument that accomplice testimony is so inherently unreliable that it should never serve as a basis for a death verdict. (People v. Hamilton (1989) 48 Cal.3d 1142, 1179-80.) However, courts and scholars*® have recognized that certain constitutional prerequisites must be followed in admitting such testimony.*? Where accomplice informants are under compulsion to conform their testimonyto a particular version of facts, defendants may be denied “any effective cross-examination of the witnesses, thereby depriving them of the fundamental right to a fair trial.” (People v. Medina (1974) 41 Cal.App.3d 438, 450; People y. Allen (1986) 42 Cal.3d 1222, 1251-53; People v. Fields (1983) 35 Cal.3d 329.) Here, the prosecutor 38 “Tt is important to note that accomplice testimonyis ordinarily moredamaging andfrequently lessreliable thanthatofadisinterested witness. Thelikelihood of perjury is increased because the accomplice, admittedly guilty, may be seeking to diminish the severity of his own punishmentor to gain revenge. And the chance of successful perjury is increased by the fact that the accomplice, completely familiar with the events of the crime, can fabricate a believable story which can withstand cross-examination.” (The Rosenberg Case: Some Reflections on Federal Criminal Law, 54 Columbia Law Review,219, 234 (1954)). 9 Someofthe more commonprecautions are mentioned in United States v. Fallon (7th Cir. 1985) 776 F.2d 727 at 734. The Fallon court noted particularly the subjection of the accomplice's testimony to cross-examination, the credibility of the testimony as determined by the jury, and properjury instructions concerning the credibility of accomplice witnesses. (Fallon at 734). -233- granted immunity in exchange fortruthful testimony, which clearly implied that the witnesses were compelledto testify in ways which would satisfy the prosecutor. The prosecutor would be satisfied with testimony which inculpated appellant. California has a specific jury instruction, which wasgivenin this case, stating that accomplice testimonyis to be viewed with distrust. (CALJIC No. 3.18: 5 CT 1740.) Jury instructions requiring accomplice corroboration were also given. (CALJIC No. 3.11, 3.12; 5 CT 1738-1740.) The jury wasalso informed that Maury O’Brien was an accomplice as a matter oflaw ifthe jury found that the crimes charged against appellant were committed by anyone. (CALJIC No. 3.16; 5 CT 1741.) Testimony maybe so contaminated and untrustworthy that the efficacy of cross-examination to exposelies is rendered so unlikely and the testimony so inherently unreliable that the admission ofsuch evidence would violate due process. (See, e.g., Williams v. Woodford (9" Cir. 2002) 306 F.3d 665.) Such wasthe casehere. Necessary safeguardswereso flagrantly abused by the admission ofthe testimonythat appellant’s right to due process wasviolated. ii. The testimony of the accomplice informants was too unreliable to be admitted and violated due process. Thereliability problem that accomplice witnesses raise is similar to -234- those raised by jailhouse informants and tainted eyewitness identification cases, in which the witnesses, despite the inaccuracy oftheir testimony, may be largely immuneto the corrective process of cross-examination. Such witnesses“are quite likely to be absolutely convinced ofthe accuracy of their recollection.” Thus their credibility, understood as their truth-telling demeanor, is unlikely to betray any inaccuracies or falsehoods in their statements. (State v. Michaels (1994) 642 A.2d 1372, 1382.) A similar difficulty exists because accomplice witnesses have the incentiveto lie, have access to inside information, and, all too frequently, law enforcement coaching, deliberate or otherwise. Bargaining for accomplice testimony produces an enormousincentive for a witnessto lie or stick to mistakes (or police suggestions) made at the beginning‘of: their-association-with the-police-or-prosecution.” Such witnesses, like the tainted eyewitness, are, as the court noted, not likely to changetheir story. (Michaels at 1382.) This Court has spelled out analytical steps for tainted eyewitness cases that may be useful for analyzing the problem ofaccomplice witness testimony as well: (1) questioning whethertheinitial pre-trial identification was unduly 40 Hughes, Agreementsfor Cooperation in Criminal Cases, (1992) 45 Vanderbilt Law Review 1, 35. -235- suggestive and unnecessary, and (2) evaluating (if the answer to the first questionis “yes”) the reliability of the identification underthetotality of the circumstances."' (People v. Johnson (1992) 3 Cal.4th 1183, 1216. Similarly, in cases involving accomplice witness testimony the court should examine whether or not the accomplice witness’ bargain with the prosecution was unduly coercive and suggestive, and should then decide whetherthe testimony hasother sufficient indicia ofreliability undera totality of the circumstances test. In Michaels, the court concluded that once the defendant has shown sufficient threshold evidenceofthe unreliability of the offered evidence, the burdenofproofshifts to the prosecution to prove such reliability by clear and convincing evidence. (Michaels, 642 A.2d 1372, 1383.) A very similar rule exists for tainted identification cases in California. (People v. Caruso (1968) 68 Cal.2d 183, 186-87, 190.) Thus, the State should have been required to show that the testimony was reliable. The prosecutor never did so. Additionally, both O’Brien’s and Hart’s testimony was inconsistent with 41 The Johnson court drawsthe test from Manson v. Brathwaite (1977) 432 U.S. 98, People v. Gordan (1990) 50 Cal.3d 1223, 1242 and Neil v. Biggers (1972) 409 U.S. 188.) Thetest also includes specified factors for testing the reliability of the identification, such as what kind of opportunity the witness hadto see the defendant, consistency with other prior descriptions, and the level of certainty at the time of confrontation. (Johnson at 1216.) -236- earlier versions they had given to the police and was replete with lies and incredulous statements. Thetrial court erred in failing to hold an evidentiary hearing in which the prosecution would have had the burden of proof to show by clear and convincing evidencethatthe accomplice witnesses’ testimony metthe required standard of constitutional reliability. In the alternative the accomplice testimony should have been excluded under Evidence Codesection 352.” In People v. Blankenship (1985) 167 Cal.App.3d 840, the court uphelda trial court’s rulingthat certain in-court testimony was inadmissible under Evidence Code section 352 because there was insufficient proof of trustworthiness. (Blankenship at 848.) As discussed supra, courts have found that in some cases in which testimonyis being given for personal advantage,the prejudicial impact carrso outweigh the probative-valuethatthetestimeny-could or should be ruled inadmissable. In capital cases, this needfor reliable evidenceis all the greater. The United States Supreme Court has madeit clear that due process requires a heightened reliability for evidence. (Beck v. Alabama (1980) 447 U.S. 625, 637-38.) This testimonyfell far short of that standard. 2 California Evidence Codesection 352 allows the court to exclude evidence whoseprobative value is outweighed byits unjustly prejudicial effect. -237- iii. | Appellant was denied due process becausethe prosecution's case depended substantially on the testimony of witnesses who were undera strong compulsiontotestify in conformity with earlier unreliable statements. In People v. Medina, supra, witnesses who were presentat the time of a murder were given immunity from charges connected with the killing in return for their testimony. (Medina, 41 Cal.App.3d at 450.) This immunity, however, was subject to the condition, written into the order, that their testimony at trial was not materially or substantially changed from prior statements to law enforcement officers. This condition, the Medina court found, “denied to defendants any effective cross-examination ofthe witnesses, thereby depriving them of the fundamental right to a fair trial.” Cd.) The essence of the decision in Medina wasthat [A] defendant is denied a fair trial if the prosecution's case depends substantially on accomplice testimony and the accomplice witness is placed, either by the prosecution or the court, under a strong compulsion to testify in a particular fashion. (Ud. at 455.) In People v. Fields, supra, 35 Cal.3d 329, this Court considered a situation similar to, but distinct from, the situation of Medina. In Fields a witnesstestified, in response to prosecution questioning,that she had agreed, in a plea bargain, to testify only to the truth. In response to defense questioning, however, she testified that she understood her agreement to be -238- that she wouldtestify in accordance with herlast statementto the police. The defendant arguedthat the arrangementtherefore violated the rule of Medina. The Court, though,notedthat her statements were not necessarily inconsistent. (Fields at 360.) If, the court reasoned,the last statementthe witness gave the police wastruthful, then,in effect, she had agreedtotestify in accord with that statement. (Fields at 360-61.) The inconsistency arose, according to the Court, not from her wordsbut fromherfailure to dispute leading questions put to her by the defense. (Fields at 361.) The Court stated [W]e recognize that a witness in Gail Fields' position is under some compulsionto testify in accord with statements given to the police or the prosecution. Thedistrict attorney in the present case obviously believed that Gail's last statement wasa truthful account, and if she deviated materially from it he might take the position that she had breached the bargain, and could be prosecuted as a principal to murder. . . [However,] the requirements of due process are satisfied when a witness’ agreementwith theprosecution permits the witnessto testify freely at trial and to respondto any claim that he breached the agreement by showingthatthe testimony he gave wasa full and truthful account. (Fields at 361.) The essential rule of Medina, however, is still in effect and was reaffirmed in People v. Allen, in which this Court stated: [W]hen the accomplice is granted immunity subject to the condition that his testimony substantially conform to anearlier statement given to the police . . . or that his testimonyresult in defendants conviction .. . the accomplice's testimonyis tainted beyond redemption andits admission denies the defendanta fair trial. -239- (People v. Allen (1986) 42 Cal.3d 1222, 1251-52.) In Allen, the Court stated that a deal for immunity would bevalid if it required “only that the witness testify fully andtruthfully.” (Allen at 1253.) Clearly the Fields case contemplatesa situation in whichthe witnesses’ statementis a fair representation ofwhat the witness believesto be “the truth.” Ashas been recently noted, however, [T]he intractable problem is that a witness may lie or make mistakesat the proffer, and conditionsas to the truthfulness may serve as the strongest inducementof the witness to perpetuate the lie or not to retract the mistake. [The witness’ temptationto lie is] not just a natural feature of the landscape but specifically is introduced or inflated by the government when it offers immunity or leniency in return for cooperation.” Surely this problem is only exacerbated when the police and prosecution confuse the issue ofwhat is meantby the term “the truth.” In this case, the police decided upon a version of what they would accept as “the truth”very early in the process. Officers decided that appellant was guilty and would accept nothing but accounts which implicated him. Only when the witnesses parroted back statements inculpating appellant were the officers satisfied. The violation of state law was a violation of a state created liberty 43 Hughes, Agreementsfor Cooperation in Criminal Cases, (1992) 45 Vanderbilt Law Review 1, 35. -240- interest in fair jury instructions. It also led to unreliable evidencein capital proceedings. These violations constituted a violation of federal due process. (See, e.g., Wolffv. McDonnell (1974) 418 U.S. 539; Vitek v. Jones (1980) 445 U.S. 480; Hewitt v. Helms (1983) 459 U.S. 460; Hicks v. Oklahoma, supra, 447 U.S. 343.) Reversalis required because appellee cannot demonstrate that the error was harmless beyond a reasonable doubt. (Chapmanv. California, supra, 386 U.S. 18). Alternatively, appellee cannot show that there was no reasonable probability the error affected the verdict adversely to defendant. (People v. Watson (1956) 46 Cal.2d 818, 836.) The error undermined the reliability required by the Eighth and Fourteenth Amendment for the conviction of a capital offense (Beck v. Alabama, supra, 447 U.S. 625, 637-38), and deprived appellantofthereliable, individualized capital sentencing determination guaranteed by the Eighth Amendment. (Zant v. Stephens, supra, 462 U.S. 862, 879; Woodson v. North Carolina, supra, (1976) 428 U.S. 280, 304; Johnsonv. Mississippi (1988) 486 U.S. 578, 584-85.) -241- XVL THERE WAS INSUFFICIENT NON-ACCOMPLICE CORROBORATING EVIDENCE. A. Facts in Support. Appellant incorporates herein by reference the factual discussion ofthe previousissue. B. Argument. This Court has held, citing Penal Code section 1111, that accomplice testimonyis inadmissible absent corroboration. (People v. Gurule (2002) 28 Cal.4th 557, 628; see also People v. McDermott (2002) 28 Cal.4th 946, 1000 [when prosecutor presents accomplice witness testimony at penalty phase regarding a defendant’s alleged prior violent conduct there must be corroboration ofthat testimony].) The corroborating evidence “may beslight, may beentirely circumstantial, and need notbe sufficient to establish every element of the charged offense,” but it must be present. (People v. Brown (2003) 31 Cal.4th 518, 556, citations omitted.) Corroborating evidence will be sufficient “if it tends to connectthe defendant with the crime in such a way as to satisfy the jury that the accompliceistelling the truth.” (/d.) Although the corroboration needonly be “slight,” it nonetheless must exist. Here, it didn’t. To be considered as evidence, it must be admissible 44 Although this opinion was modified (2003 WL 22448524, Oct. 29, 200 (unpublished)) the modification does not affect the judgment. -242- underthe relevant rules. Here, the evidencethe prosecutor introduced wasthat of “totally uncorroborated” accomplice witnesses, Maury O’Brien and Jason Hart. As such,it was inadmissible. (People v. Gurule, supra, 28 Cal.4th 557 at 628; People v. McDermott, supra, 28 Cal.4th at 1000.) No forensic evidencelinked appellant to the crime scene, the victim’s car, or the alleged murder weapon. Without the testimony of O’Brien and Hart, the State would not have had a case against appellant. XVII. TRIAL COURT ERROR IN ALLOWING INADMISSABLE HEARSAY TESTIMONY FROM THE PATHOLOGIST WHO WASNOT PRESENT AT THE AUTOPSY. Appellant’s right to due process of law, equal protection of the laws, and a reliable sentence,trial by jury, and by an impartial sentencer, effective assistance of counsel, compulsory process, right of confrontation and cross- examination, proof of criminal offenses beyond a reasonable doubt and freedom from self-incrimination, was violated by the introduction of hearsay testimony regardingthe victim’s death from a pathologist who wasnot present at the autopsy. (U.S. Const. Amends. V, VI, VII, XIV; Crawford v. Washington (2004) 541 U.S. 36; Melendez-Diaz v. Massachusetts (2009) 557 U.S. 305, 129 S.Ct. 2527; Bullcoming v. New Mexico (2011) 131 S. Ct. 2705.) -243- A. Facts in Support. Before the trial testimony ofthe pathologist, the prosecutor announced that the person who hadactually performed the autopsy wouldnottestify at appellant’s trial: The pathologist who performed the autopsy is not going to testify because she’s moved across the country, and another pathologist who wasn’t even present is goingto testify. And certainly that person isn’t going to be able to give any testimony at all regardingthe appearanceofthat wound wasdifferent from some previous point in time. (8 RT 1968.) At trial, the State called Dr. Brian Peterson, a forensic pathologist, whotestified regarding the autopsy on Janet Daher performed on March 26, 1998. (13 RT 3001.) His only connection to the case wasthatat the time of the trial he worked for a company, Forensic Medical Groupin Fairfield, that wasthe former employerofthe physician whoactually performed the autopsy, Dr. Susan Hogan. (13 RT 3001.) Atthe timeof the trial, Dr. Hogan had movedout of the area. (13 RT 3004.) She formerly worked for the Forensic Medical Group, who had a contract with Contra Costa County to perform autopsies. (/d.) There wasno proffer or evidence to show that Dr. Hogan was presently unavailableto testify other than that she did notcurrently live “in the area.” As a result, the entire trial testimony of Dr. Peterson was inadmissible -244- hearsay. As to prejudice, his testimony was very detailed, central to the prosecution’s case and theory of the cause of death, and very inflammatory. Dr. Peterson first opined, apparently on the basis of Dr. Hogan’s notes, that this was not a gunshotcase, so no x-rays were done (13 RT 3005), only photosof the victim’s body, with and without clothes. (13 RT 3006.) Dr. Petersontestified that there was evidence ofligature strangulation, which is strangulation by use of an object. (13 RT 3007.) He opined that it was accomplished by a phone cord. His opinion wasthat the cord was wrapped around the neck with sufficient force to leave a furrow in the skin. Ud.) He opined thatthere wasalso bleeding in the whites of the eyes and bleeding in the muscles of the neck. (/d.) This was central to the State’s theory of the cause of death. —- —pr. Petersorralsotestified thatthecord-was aroundthe-neck-whenthe - body was received at the morgue. (13 RT 3008.) Accordingto this witness, the hemorrhagesin the victim’s eyes were causedby pressureto the neck.(/d.) Heopinedthat there would have had to have been considerable force to cause the furrows in the neck. (13 RT 3009.) From his view of the pictures, he stated that there were also stab wounds. (13 RT 3010.) “Ifan injury is deeper than it is long, that’s a stab wound.” (/d.) This witness also provided extensive details about the nature and -245- causation ofthe victim’s various wounds. Hestated that stab wound “A” was a cut on the right side of the neck, six inches below the top of the head and ~ four inches long. (13 RT 3011.) His opinion was that it was relatively superficial and not potentially mortal. (13 RT 3012.) Stab woundsB, C,D and E were woundsto theleft side of the chest. (/d.) All were superficial except E which wentto the left lower lung lobe. They all had two sharp edges. (13 RT 3013.) All of this testimony came from information in Dr. Hogan’s notes. The witnessalso stated that there was blood inside the chest cavity. (13 RT3014.) According to Dr. Peterson, Wound E may have been sufficient to cause death as it may have collapsed the lung. (/d.) WoundsF, G, H and I are nearthe top of the chest and F wasthe deepest. (13 RT 3016.) That wound could have beenlethal, the witness opined, as it caught the jugular vein, the carotid artery and the thyroid gland. (13 RT 3017.) The witness also gave extensive details on additional wounds, denominated as Wounds J, K,L, M,N,and O,all lower stab wounds. These were deeper. All six ofthem entered the lung either on the rightor ontheleft. The entire blade was in the body. (13 RT 3018.) There wasalso a woundto the front of the left arm. (13 RT 3019.) Althoughthis witness wasnot presentat the autopsy, he wasallowed -246- to present his speculative opinion that the victim was first strangled and then stabbed. (13 RT 3020.) Hetold the jury that “{h]er heart wasstill beating at the time those stab wounds were delivered.” Shown People’s Exhibit 46, his opinion wasthat the wounds were consistent with being causedby this knife. (Id. ) His overall opinion was that death was caused by a combination of ligature strangulation and stabbing. (13 RT 3021.) On cross-examination, the defense brought out that the report was actually written by Dr. Hogan. (13 RT 3022.) Dr. Peterson did not know whenshe wroteit. (13 RT 3023.) Additionally, he had not reviewedthis case until two weekspriorto trial. Ud.) This witnessalsotestified that there were someabrasionsto theleft side of the victim’s face. (13 RT 3024.) Abrasions on the left cheek were consistentwithrugburns. -(/d.)-Thewitnessstated thatthere-were nospecific. head woundsat all, such as would be caused by being hit in the head with a VCR. (13 RT 3025.) The witness then opined that there is no wayto tell if Mrs. Daher wasconscious or unconscious when she wasstabbed. (/d.) This error cannot be held to be harmless, as the prosecutor himself admitted that the photos introduced and examined by the pathologist were central to his case. In attempting to admit the many gory and prejudicial photosthe prosecutorstated that “I’m highlighting every stab wound. Every -247- stab wound is further evidence of intent to kill, express malice.” (8 RT 1969((emphasis added.) He argued that he wantedall the pictures in evidence and, to support that argument, stated that there will be an expert whowill give an opinion based on the photos. (8 RT 1969.) That expert was Dr. Peterson, who wasnot even present at the autopsy. B. Argument. i. The Confrontation Clause. This testimony wasthe centerpiece ofthe prosecution’s theory asto the manner of the victim’s death and evidence of appellant’s intent to kill and evidence of express malice, as the prosecutor himself admitted. (8 RT 1969.) As such, it was essential to the State’s case. Yetit relied entirely on hearsay testimony and this witness’s reading and interpretation ofthe coroner’s report written by someone else. More importantly, it was a violation of the Sixth Amendment’s Confrontation Clause: “The accused shall enjoy the right...to be confronted with the witnesses against him.” This meansthat the prosecution must presentits witnesses in court, underoath, face-to-face with the defendant, and make them available for cross examination. In order to protect the integrity of this confrontation requirement, the Clause precludes the introduction of certain out-of-court statements. Here, appellant had no opportunity to confront and cross-examinethe actual coroner whopreparedthe -248- report. In Crawford v. Washington, supra, 124 S. Ct. 1354, the United States Supreme Court held that out-of-court statements by witnesses that are testimonial are barred, under the Confrontation Clause,*° unless the witnesses are unavailable and the defendants had prior opportunity to cross-examine them, regardless ofwhether such statements are deemed reliable by the court.*® The Supreme Court explainedthat“evenifthe Sixth Amendmentis not solely concerned with testimonial hearsay, that is its primary object, and interrogations by law enforcementofficers fall squarely within that class.” (Crawford v. Washington at 1365.) The text of the Sixth Amendmentdoes not suggest any open- ended exceptions from the confrontation requirement to be developed by the courts. Rather, the ‘right ... to be confronted --with the-witnesses against him,” Amdt.-6,is mostnaturally read... - as a reference to the right of confrontation at common law, admitting only those exceptions establishedat the time ofthe founding.” See Mattox v. United States (1895), 156 U.S. 237, 243, 15 S.Ct. 337, 39 L.Ed. 409 (1895)....” 45 The Sixth Amendment Confrontation Clause’s bedrock procedural guarantee applies to both federal and state prosecutions. (Pointer v. Texas (1965) 380 U.S. 400, 406 (1965).) 46 Abrogating Ohio v. Roberts (1980) 448 U.S. 56, where the High Court held that the admission of an unavailable witness’s statement against a criminal defendant was allowableif the statement bore “adequate ‘indicia ofreliability.”” /d., at 66. To meet thattest, the evidence was required to either fall within a “firmly rooted hearsay exception”or bear “particularized guarantees of trustworthiness.” (/d.) -249- (Crawford v. Washington, at 1365.) The Supreme Court held: Wheretestimonial statements are involved, we do notthink the Framers meantto leave the Sixth Amendment's protection to the vagaries of the rules of evidence, much less to amorphous notions of “reliability.” Certainly none of the authorities discussed above acknowledges anygeneralreliability exception to the common-law rule. Admitting statements deemedreliable by a judge is fundamentally at odds with the right of confrontation. (Crawford v. Washington, supra, at 1366.) That Court explained that “[d]ispensing with confrontation because testimony is obviously reliable is akin to dispensing with jury trial because a defendant is obviously guilty. This is not what the Sixth Amendment prescribes.” (/d. at 1371.) “Testimonial” has been defined as an assertion “made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial.” (Melendez-Diaz, supra, 129 S. Ct. at 2532 (quoting Crawford, 541 U.S. at 52.) “To rank as ‘testimonial,’ a statement must have a “primary purpose’ of‘establish[ing] or prov[ing] past events potentially relevant to a later criminal prosecution.” (Bullcoming v. New Mexico, supra, 131 S. Ct. 2705, 2714 n.6 (plurality)(quoting Davis v. Washington (2006) 547 U.S. 813, 822; see also -250- Michigan v. Bryant (2011) 131 S. Ct. 1143, 1165.)*7 Testimonial evidence includes “extrajudicial statements...contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions.” (White v. Illinois (1992) 502 U.S. 346, 365 (Thomas, J., concurring in part), quoted in Crawford, 541 U.S. at 52 and in Melendez-Diaz, 129 S. Ct.at 2543.) A statement need not“directly accuse [the defendant] of wrongdoing”to be testimonial. The Confrontation Clause appliesto all testimony offered by the prosecution. (Melendez-Diaz, 129 S. Ct. at 2535.) In Melendez-Diaz the Supreme Court respondedto the State’s argument that forensic laboratory reports, similar to the autopsy report in issuehere, were admissible as business or official records, and held that “whetheror not they qualify as businessorofficial records, the analysts’ statements here...were testimony against thepetitioner.” (/d. at 2537.)Arecordofcontemporaneous observations of the crime scene or other evidence, made after the fact, is ‘7 In Bullcoming, the prosecutor called as a witnessa scientist from the same laboratory who hadnotsigned a blood alcoholanalysis report. The analyst who had actually prepared the report did not testify. The testifying scientist was familiar with blood-alcohol analysis in general and the laboratory’s testing protocols. (Bullcoming, 131 S. Ct. at 2706-12.) The Supreme Court held that the report was testimonial and thatthe “surrogate testimony”ofthe substitute witness “does not meet the constitutional requirement...[of] the accused’s right to be confronted with the analyst who madethecertification, unless the analyst is unavailable attrial...” (/d. at 2710.) -251- testimonial. (Id. at 2535.) Melendez-Diaz specifically held that human assertions in autopsies, drug lab reports and other forensic reports madefor the purposeofproducing evidenceforlitigation are “testimonial statements”that could not be introduced unless their authors were subject to the “crucible of cross-examination.”(Id. at 2527; see also United States v. Moore (D.C. 2011) 651 F.3d 30, 69-74 (autopsy reports were testimonial).) When testimonial forensic reports are presented as evidence against a defendant, the Confrontation Clause guarantees the defendantthe opportunity to test through cross-examinationthe “honesty, proficiency, and methodology”ofthe analyst whoactually performed the forensic analysis. (Melendez-Diaz 129 S. Ct. at 2536-38; Bullcoming, 131 S. Ct. at 2710.) In Moore, as here, the medical examiner whotestified (Dr. Petersen) may have had onlya supervisory role in the office. (Moore, 651 F.3d at 72.) The Moore Court rejected the government’s attempts to avoid the Confrontation Clause on the grounds that the autopsy report was non- testimonial, holding that the argumentwas foreclosed by Bullcoming. (Id.) The reasoning was that because “a law-enforcement officer provided seized evidence to a state laboratory required by law to assist in police investigations,” and the analyst tested the evidence and prepareda report, it was testimonial. (Bullcoming at 2717.) The “fact that each autopsy found the -252- manner of death to be a homicide caused by gunshot wounds, are ‘circumstances which would lead an objective witness to believe that the statement would be available foruse at a latertrial.’” (Moore, 651 F.3d at 73, quoting Melendez-Diaz, 129 S. Ct. at 2532.) In Bullcoming, supra, the United States Supreme Court held that a scientific report dealing with intoxication could not be used as substantive evidence against the defendant unless the analyst who prepared andcertified the report was subject to cross-examination.Just as here, the Court rejected the surrogate testimony despite the fact that the testifying expert was a knowledgeable representative of the laboratory who could explain the lab’s processes andthe details of the report because “[t]he accused’s rightis to be confronted with the analyst who madethe certification.” (Bullcoming, 1315S. Ct.at 2710:) -Just-as-here,the report in-Bullcoming-was-signed by the non- testifying expert and it was offered for the substantive purposeofproving the truth ofthe matter asserted byits out-of-court author. Here, the autopsy report, prepared and signed by the missing coroner, was offered to provethe horrific manner of death of the victim Mrs. Daher, the cause of her death, and, indirectly, appellant’s role in that death. It was both offered forits truth and it was testimonial. The United States Supreme Court on June 18, 2012 addressed once -253- again the application of the Confrontation Clause to forensic evidence in Williamsv. Illinois (2012) ___US. 132 S. Ct. 2221. Williams involved a forensic analyst testifying, based in part on a DNAprofile performed by someoneelse, that DNA foundinside a rape victim matched DNAtaken from the defendant. Justice Alito’s plurality opinion agreed that the DNAprofile was not testimonial and that therefore Williams did not have the right to confront the DNA report’s creator. It was held not to be testimonial because it was the expert’s testimony, rather than the report itself, that was offered for the truth of the matter asserted. The report was only a premise on whichthe expert’s testimony wasbased. Williams, according to the four memberplurality, held that reports that are subsidiary or the internal work product leading up to a formal report are not testimonial andtherefore not subject to the Confrontation Clause. Justice . Thomas,in his concurring opinion, agreed with the plurality that the report was not testimonial because it was not sufficiently formal or certified. The subsidiary report at issue in Williams wasfar enough removed and informal so that the accused did not automatically have the right to cross-examinethe authors. Thus, in the realm of forensic evidence, the Confrontation Clause continues to deemformalforensic reports, such as the autopsy report at issue -254- here,to be testimonial. Subsidiary reports or statements madeas part ofa lab’s internal work product used to generate a final incriminating report will generally be held notto be testimonial in the wake of Williams. However, formal and final reports such as the autopsy here, remain testimonialafter Williams. The situation hereis thus not analogousto that in Williams, as the autopsy report here was both formal and final, not simply a preliminary or subsidiary report madein preparation ofa final report. Williams has noeffect on the analysis of the error. There was no “subsidiary” report here. Norcan this error be excused on the basis that the medical examiner whodid perform the autopsy (Dr. Hogan) was unavailable. “The prosecution bears the burden of establishing” that a witness is unavailable. (Ohio v. Roberts, supra, 448 U.S. 56, 75.) A witness is unavailable if a witness has unexpectedly gone missing and-the-prosecution -cannot- findthe -witness,- “despite goodfaith efforts undertaken priorto trial to locate and presentthat witness.” (/d. at 74.) If the government has not undertaken reasonable attempts to produce the witness, then the witnessis not unavailable. (See, e.g., Barber v. Page (1969) 390 U.S. 719, 722-25; Hernandez v. State (Nev. 2008) 188 P.3d 1126 (insufficient effort on State’s part when simply accepted claim at time oftrial of “family emergency” and did not investigate in any way); State v. King (Wis. App. 2005) 706 N.W.2d 181 (insufficient effort when -255- witness contacted severaltimes, learned ofher reluctance to appearandfailed to issue subpoena); State v. Cox (2010 Minn.)(prosecution must actively seek the witness’s participation).) Norwasit sufficient here for the State to merely allege that Dr. Hogan was “out ofstate.” (8 RT 1968.) In this situation, it must be shownthatthe witness is permanently orat least indefinitely beyond the court’s jurisdiction and“thestate [i]s powerless to compelhis attendance...either through its own process or throughestablished procedures.” (Mancusi v. Stubbs (1972) 408 U.S. 202, 208.) There was no showing that the governmentcould notfind the witness or even that “good faith efforts [were] undertakenpriorto trial to locate and presentthat witness.” (Roberts, 448 U.S. at 74.) Ifthe government has not undertaken reasonableefforts to produce the witness, then the witness is not unavailable. (Barber v. Page, supra, 390 U.S. 719, 722-25.) But if, as here, the prosecution knows where the witness is, and “proceduresexist[] whereby the witness could be broughtto thetrial, and the witness[is] not in a position to frustrate efforts to secure his production,” a witness outside the jurisdiction is not unavailable. (Roberts, 448 U.S. at 77.) Here, there was nothing to show that the prosecution ever made any efforts to procure Dr. Hogan, let alone to show that she could not have been procured or was otherwise unavailable. -256- ii. The hearsay argument. Generally, hearsay evidenceis generally inadmissible under the Hearsay Rule. (See Evidence Code section 1200.) Dr. Peterson’s testimony was obvious hearsay,as he wasnotpresentat the autopsy, was notthe author ofthe notes upon whichherelied, and hence his testimony wasentirely based on these out-of-court statements. Such evidence is inadmissible. Even assuming, arguendo,that the evidence had some non-hearsay, not-for-truth value, the probative value of that evidence was substantially outweighed by the danger of undue prejudice created by its admission. Evidence Code section 352 provides: The Court in its discretion may exclude evidenceifits probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption oftime or(b) create substantial danger of undue prejudice, or of misleading This code section requiresthetrial court to undergo a careful scrutiny of such evidence: Evidence Code section 352 vests discretion in the trial judge to exclude evidence where its probative value us substantially outweighedby the probability that its admission will necessitate undue consumption of time or create substantial danger of prejudice, of confusion ofissues, or of misleadinga Jury... (Kessler v. Gray (1978) 77 Cal.App.3d 284, 291.) Whatsection 352 is designed to avoid “is not the prejudice or damage to a defense that naturally flows from relevant, highly probative evidence, -257- rather, the statute uses the word in [the] sense of ‘prejudging’ a person or cause on the basis of extraneous factors.” (People v. Zapien, supra, 4 Cal.4th 929, 958.) The danger of undueprejudice is that the evidenceis likely to arouse the emotions of the jurors or be used in some mannerunrelatedto the issue on whichit was admissible. (People v. Cudjo (1993) 6 Cal.4th 585, 610.) “Substantial danger of undue prejudice” within the meaning of §352 thus refers to situations where the evidence may be misused by the jury for a purpose other than that for which it was admitted. (People v. Foilson (1994) 22 Cal.App.4th 1841.) The prosecution offered this evidence in order to show the horrific circumstances of the death of the victim, specifically that she was first strangled with a telephone cord, a process that would have taken some time. In addition, in attempting to have the court admit the prejudicial autopsy photos, the prosecutor admitted that the interpretation of those photos was central, as “every stab woundis further evidence of intentto kill, express malice.” (8 RT 1969((emphasis added.) There was absolutely no showing that the the physician whoactually performed the autopsy, Dr. Susan Hogan (13 RT 3001), was unavailable at the timeofthe trial, as is required under Crawford in order to admit the hearsay. All that wasstated wasthatat the time of the trial Dr. Hogan had movedoutofthe area (13 RT 3004), not that she -258- was unavailable. Even if she was unavailable, the evidence would be inadmissible without the opportunity of the defense to cross examineher. Reversal is required because appellee cannot demonstrate thatthe error was harmless beyond a reasonable doubt. (Chapmanv. California, supra, 386 U.S. 18). Alternatively, appellee cannot show that there was no reasonable probability the error affected the verdict adversely to defendant. (People v. Watson, supra, 46 Cal.2d 818, 836.) The error undermined the reliability required by the Eighth and Fourteenth Amendment for the conviction of a capital offense (Beck v. Alabama, supra, 447 U.S. 625, 637-38), and deprived appellantofthe reliable, individualized capital sentencing determination guaranteed by the Eighth Amendment. (Zant v. Stephens, supra, 462 U.S. 862, 879; Woodson v. North Carolina, supra, 428 U.S. 280, 304; Johnsonv. Mississippi, supra, 486 US. 578, 584-85.) XVIII. MISCELLANEOUSTRIALCOURTERRORSDEPRIVED APPELLANTOFA FAIR TRIAL. A. Facts in Support. i. The family of the victim was allowed in the courtroom during the guilt phase. Thetrial court judge stated that he did not wantto exclude the victim’s -259- family from the courtroom. (5 RT 1159.) The defense objected, stating that it will be victim impact evidence if they are present. (5 RT 1160.) The objection was on the basis that it would be a denial of due process and equal protection. (5 RT 1161.) The motion was denied. ii. Trial error for refusing to treat low-income jurors as cognizable class entitled to extra compensation. The trial court refused to grant extra compensation to low-income jurors. Susan Batey claimed a hardship exemption as she made only $10 an hour. The court stated that people oflow incomedo notrepresent a cognizable class and do not need to be compensated extra. (6 RT 1199.) The defense made a record and objected,stating that this would exclude a fair cross- section. (6 RT 2100.) The defense made their objection on due process grounds. (/d.) Asaresult, appellant was deprivedof a jury ofhis peers. iil. Court coaching of witnesses. The court asked Mr. O’Brien to clarify what BARTstation they had gotten off when they walked back to the hills as he had apparently made a mistakeas to the correctstation. (11 RT 2455.) The defense objected, stating that it was not appropriate for the court to ask this witness “what BART station”and then have him say “Lafayette,”the correct station. (11 RT 2456.) These are matters for cross-examination, the defense asserted. The court stated it did not ask or tell him whichstation (/d.) and that there was nointent -260- to direct the witness: “It was neutral. I asked him in a neutral way.” (11 RT 2457.) The defense countered that they wereentitled to point out mistakes and thereby impeachthis crucial witness, not the court. (11 RT 2458.) iv. Improper“snitch” instruction. The defense objected to CALJIC 17.41.1, the “snitch”instruction which allowed jurors to report holdoutjurors to the court. (15 RT 3467.) The court cited People v. Williams (2001) 25 Cal.4th 441. (15 RT 3468.) That case makesclear the jury cannotignorethe law. (15 RT 3469.) The defense argued that there is a threat or coercion in this instruction, becauseif a juror does not feel the State has proved the case beyond a reasonable doubt, the otherjurors could report them to the judge whenit could be merely a matter ofthem being unable to articulate their feelings. (15 RT 3470.) The defense attorneys pointed out that the instruction could coerce a juror in the minority. (15 RT 3471.) It would putpressure on a “holdout” juror in violation of the Sixth Amendment. However, the objection was preserved and theinstruction was given. (15 RT 3472.) This Court disapproved of this instruction in People v. Engelman (2002) 28 Cal.4th 436 butheld it was not unconstitutional. (See also People v.Brady (2010) 50 Cal.4th 547, 587;Peoplev. Wilson, supra, 44 Cal.4th 758, 805-806.) Appellant urges this Court to reconsider these opinionsin light of -261- the inherently coercive nature of the instruction. V. Improper aggravating evidence due to trial court error in denying motion in limine to exclude CDCincidents. Before the commencementof the punishment phase, the prosecution stated that they intended to pursue all five California Department of Corrections incidents allegedly involving appellant. (16 RT 3773.) The prosecutor said they would not seek to introduce “nonstatutory aggravating factors” such asrule violations, but would introduce the Armenta/Contreras, Flores and Lucas incidents. (16 RT 3774.) In the Flores incident, the inmates were both hitting each other. (16 RT 3775.) There wasnoevidence appellantinitiated the incident, accordingto the court. “The burden’s on the people to prove it wasn’t in self-defense” and “it’s not enough to show that he was involved in violence, but it has to be criminalactivity.” (16 RT 3776.) With regard to the Lucas incident, it seemed to be consensual, according to the court. (16 RT 3778.) Appellant was trying to protect Contreras, his “little homie.” (16 RT 3779.) It was pointed out that a Penal Codesection allows for the defense ofothers. (16 RT 3780.) Appellantsaid he was concerned with Contrerasso hejumpedin and hit Armenta. (16 RT 3781.) The court was not prepared to exclude these issues (involving Aragon, Armenta, and Lira). (16 RT 3782.) -262- Vi. Trial error for failure of the court to admonish the jury to disregard emotional outburst. Duringthe cross-examination ofAndreaTorres,the following occurred; Q. What were your mixed feelings? A. First of all, I didn’t want to deal with it. AUDIENCE MEMBER:Just like a 13 year old. You're leading the witness on here. THE COURT:Onesecond,please. The attorneys will... AUDIENCE MEMBER:I know. But my daughter was 13 yearsold, your Honor. THE COURT:Sir, hold on one second. (17 RT 4074.) The court then correctly took a short break and discussed thesituation. The audience memberidentified himself as Mr. Torres, Andrea’s father. (17 RT 4074-4075.) The court then admonished Mr. Torres, who apologized for his outburst. (17 RT 4075.) But when thetrial reconvened,the court did not admonish the jury to disregard any of Mr. Torres’ comments, which improperly generated sympathy for Ms. Torres. Even though the defense did not specifically request an admonition, the court had a sua sponte duty to admonish and inform the jury that they should disregard any comments from this spectator. vii. Instructional error at the penalty phase by giving the instruction on lewd acts with a child under 14. The defense made multiple objections to the court’s giving the instruction regarding lewd acts with a child under 14. Theirfinal objection -263- wasthat under CALIIC 10.65, there was no criminal intentif the person had a reasonable goodfaith beliefthat the person consented. (24 RT 5369.) They also stated that they were objecting under Evidence Code 352 (24 RT 5370) as well as on due process grounds under the Fourteenth Amendment. (24 RT 5370.) Their argument wasthat it would diminish the individualized nature ofthejury’s determination by bringing in a factor the jury should not consider. (24 RT 5370.) The court stated that the State wanted to emphasize the sexual touching instead of the intercourse. (24 RT 5371.) The objection was overruled. (24 RT 5372.) The defensealso asserted an Eighth Amendment violation. (/d.) Includingthis irrelevantinstruction violated appellant’s rights underthe Sixth, Eighth, and Fourteenth Amendments. Instructing the jury on irrelevant matters diluted the jury’s focus, distracted its attention from the task at hand, and introduced confusion into the deliberative process. Such irrelevant instructions also created a graverisk that the death penalty was imposed on the basis of inapplicable factors. Indeed, this Court hassaid thattrial courts have a “duty to screen out factually unsupported theories, either by appropriate instruction or by not presenting them tothejury in thefirst place.” (Peoplev. Guiton (1993) 4 Cal.4th 1116, 1131.) Here the failure to screen out inapplicable factors meantthat the jurors were required to make an ad hoc -264- determination on the legal question of relevancy. This undermined the reliability of the sentencing process. The inclusion ofthis inapplicable instruction also deprived appellant of his right to an individualized sentencing determination based solely on permissible factors relating to him and to the crime. In addition, that error artificially inflated the weight ofthe aggravating factors and violated the Sixth, Eighth, and Fourteenth Amendmentrequirements of heightenedreliability in the penalty determination. (Ford v. Wainwright (1986) 477 U.S. 399, 411, 414: Beck v. Alabama, supra, 447 U.S. 625, 637.) Reversal of appellant’s death judgmentis required. viii. Instructional error made when interrupting defense counsel’s final argument.” Defense counsel told the jury at final argument in the penalty phase “{aJndifyoufind that themitigationshould equal theaggravationin weight, you mustvote for life.” In front of the jury, the court interrupted andsaid, “No, that’s not correct. The last instruction...the last statement of law stated by counselis incorrect, ladies and gentlemen. You ignore that.” The court then stated there was no authority for that assertion.” (24 RT 5483.) ‘48 See also Argument XX. 49 Kansas v. Marsh (2006) 126 S. Ct. 2516 (statute requiring death if aggravating and mitigating factors are in “equipose”doesnotviolate gt and 14" Amendment). Thetrial wasprior to this case. -265- Further discussionofthis issue was held out ofthe presenceofthe jury in chambers. The court said that defense counsel couldonly say that “unless | you are persuaded that the aggravating circumstances that they warrant death...you can’t vote for death.” (24 RT 5484.) The court then stated, fy]ou can only vote for life if you find that the mitigating circumstances when compared with to the aggravating circumstances warrant life. That’s the only time you can do it....It’s...it’s...aggravating circumstances outweigh the mitigating circumstancesin the sense that they warrant death, you vote for death...Life is not the default position. (24 RT 5485.) The court had a problem with the “equal” argument, saying that if they feel neither life nor death is warranted, they are hung. (24 RT 5486.) There wasa discussion ofthe “so substantial” language. The court said it does not mean that they have to be substantially greater, but that they are significant enoughto warrant death. (24 RT 5487.) The court then stated that “TcJounselbelievesthatlife is a default position, andit is not.” (24 RT 5488.) Judge Spinettastated that “[a]ggravationthat simply outweighs mitigation, but not to the extent that warrants death, you can not vote for death. That doesn’t mean you can vote for life. You can’t vote for life.” (24 RT 5489.) Attemptingto clarify further, the court then stated ..before you can vote for death it’s not enough to say aggravating circumstances outweigh mitigating. They must outweigh mitigating circumstances to such an extent to warrant death...Before you can vote for life, the mitigating circumstances must outweigh the aggravating circumstancesas -266- to warrant...life. (24 RT 5490.) Thenthe court stated that “[y]ou can only vote for death when the aggravating circumstances are so substantial in comparison to mitigating as to warrant life.” (24 RT 5491.) “Obviously, I have no problem with yourtelling the jury: Look, you can’t vote for death unless youfeel it outweighsit to the extent that it warrants...aggravating outweighs mitigating to the extent it warrants death.” (24 RT 5492.) The court tried to simplify it again: Whatthe statute is simply saying...is you weigh the aggravating and you weigh with the mitigating and you compare them and then youare led to a conclusion either death is warranted orlife is warranted. And ifyou are led to no conclusionin that regard, then you can’t make up your mind. (24 RT 5493.) B. Argument. The facts-and-argument-ofIssueXXinfraare incorporatedherein..The cumulative effectofthe errors produced trial setting that was fundamentally unfair and denied appellant the due process of law guaranteed by the Fourteenth Amendmenttothe United States Constitution. (Taylor v. Kentucky (1978) 436 U.S. 478 at 487; and see Harris v. Wood (9th Cir. 1995) 64 F.3d 1432, 1438-1439; Mak v. Blodgett (9th Cir. 1992) 970 F.2d 614, 622.) In addition, the Eighth Amendment guarantee of heightenedreliability in death judgments (Johnson v. Mississippi, supra, 486 U.S. 578, 584-585) also compels reversal when the cumulative effect of errors undermines confidence -267- in the reliability ofthe judgment. Appellant submits thatthe errorsin this case require reversal both individually and because of their cumulative impact. In his presentation ofthe above claims, appellant has shown how each individually merits relief as a denial of his constitutionalrights or a violation of federal law. However, there are situations in which an appellantalleges several constitutional errors or violations of state or federal law, each of which is found harmless by the court, or none of which is found to be a constitutional violation, but which, in the aggregate, deny the appellant fair trial. Hence, this claim is presented in the alternative to the analysis of appellant’s other claims, not as a comment ontheir individual merits. In Taylor v. Kentucky, supra, 436 U.S. 478, the Supreme Court accepted the notion that several errors, none of which individually rise to constitutional dimensions, may have the cumulative effect of denying a defendant a fair trial. In Taylor, the Court did not assess each error to determine whetherit was individually harmless. Nor did the Court concern itself only with errors which individually were of constitutional dimension. Instead, the Court evaluated the circumstances surrounding the defendant’s trial to determine that the state had denied the defendant fundamentalfairness as guaranteed by the Due Process Clause of the Fourteenth Amendment. As the Fifth Circuit has held, a trial is fundamentally unfair if “there is a reasonable probability that the verdict might have been different hadthetrial -268- been properly conducted.”(Kirkpatrick v. Blackburn, (Sth Cir. 1985) 777 F.2d 272, 278-79.) As explained supra, the trial errors of this case violated state and federal constitutional protections underthe Fifth, Sixth, Eighth, and Fourteenth Amendments. Accordingly, the errors and their cumulative effect must be evaluated under the Chapman standard of review, and reversal is required unless appellee can prove them harmless beyond a reasonable doubt. (Chapman vy. California, supra, 386 U.S. 18 at 24.) All of the errors described above in combination worked to deny appellanta fairtrial. XIX. THE TRIAL COURT ERRED IN ALLOWING PREJUDICIAL VICTIM IMPACT EVIDENCE AT THE PUNISHMENTPHASE. Appellant's death sentence is unlawfulandwas obtained in violation of his rights under the Due Process Clause of the Fifth Amendment, the Assistance ofCounsel Clause ofthe Sixth Amendment, the Cruel and Unusual Punishment Clause of the Eighth Amendment, and the Due Process, Equal Protection, and Privileges and Immunities Clauses of the Fourteenth Amendment, as well as his correspondingrights underarticle I, sections7,8, 15, and 17 of the California Constitution, because the trial judge allowed prejudicial victim impact evidence at the punishmentphaseofthetrial. -269- A. Factsin Support. At the very endofthe prosecution’s penalty phase presentation, andjust priorto the matter being submittedto thejury, the State offered testimony from the victim’s two young daughters. They testified regarding the loss of their mother. Lauren Daher,the elder daughterofthe victim, testified that she was 15 when her mother died. (18 RT 4181.) It was eight days before her sixteenth birthday and she was a sophomorein high school. (/d.) When she arrived at the crime scene with herfather, the police talked to him and “hejust hit the groundhysterical.” (18 RT 4182.) Ms. Daher’s youngersister “was scared and shocked anddidn’t really say much.” (18 RT 4183.) Lauren Daher told the jury that her mother “was the kindest and most gentle and caring person I think I’ve ever met. The kind that would do anything for anyone.” (18 RT 4183.) Although they fought a lot, they still had a great relationship. (18 RT 4184.) The death of her mother has “beenthe hardest thing I think | could ever even imagined. I haveturned into the mom ofthe family. I have two kids, my dad and mysister and a lot more responsibilities than I ever would have managedthatI had taken for granted when I had her.” (18 RT 4184.) The victim’s death meantthat she missed Lauren’s sixteenth birthday eight days later, as well as high school graduation, Mother’s Day and Christmas. (18 RT 4184-4185.) She said that “myentire junior year of high school. I didn’t really go to school because I couldn’t get up in the morning. -270- There were times I just wished I wouldn’t wake up.” (18 RT 4185.) She had been in counseling for four years. (/d.) The jury was shownpictures of the family on vacation. (18 RT 4185-4186.) Lauren thinks about her mother every day, “[m]ore than onceor twice a day.” (18 RT 4186.) Annie Daher, the victim’s younger daughter, who was 12 when her motherdied, also testified. (18 RT 4187.) The day ofher mother’s death “was just absolutely terrible,” she was “scared to death the whole time,” and when the policeman told her father, “he just collapsed...” (18 RT 4188.) Shefelt bad because she never appreciated her as much as she should have. Her mother was a strong role model, “an incredibly giving person,” and they loved each other a lot. (18 RT 4189.) The jury was told that Mrs. Daher never missed a game or a horse show. (/d.) Annie too had been going to therapy. (18RE4190.) -She-foundit difficult to concentrate-on-schoolworkand-was- exhausted and depressed. (18 RT 4191.) She thought about her mother every day. (18 RT 4192.) Immediately after this testimony, the State rested. (18 RT 4194.) This issue was preserved as the defense filed a “Penalty Phase /n Limine Motion Concerning Victim Impact Evidence.” (5 CT 1547-1551.) The motion sought to exclude any victim impact evidence relating to any circumstances of which the defendant could not reasonably have been aware at the time ofthe capital offense; any evidence thatis irrelevant or -271- inflammatory; and any opinionsofthe victim’s family about the crime, the defendant, or the appropriate sentence to be given. (5 CT 1550.) In that motion,the defense acknowledgedthat Penal Code 190.3(a) and People v. Edwards (1991) 54 Cal.3d 787, 835-836 allows “evidence and argument on the specific harm caused by the defendant, including the impact on the family of the victim.” (5 CT 1548.) The motion was denied and the testimony was allowed. (16 RT 3814.) B. Argument. The United States Supreme Court in Payne v. Tennessee (1991) 501 U.S. 808, 111 S.Ct. 2597,held that the Eighth Amendmenterects noper se bar to the admission ofcertain victim impactevidence during the sentencing phase of a capital case. The Court, however, has acknowledgedthat victim impact evidence can be so unduly prejudicial as to render the sentencing proceeding fundamentally unfair and violative of the Due Process Clause of the Fourteenth Amendment. (/d. at 825, 111 S.Ct. at 2608.) The victim impact evidence introduced in the present case was cumulative, redundant, and oppressivein nature, as to encouragea shifting of the focus of the sentencing proceeding away from appellant and on to the victim and the victim’s family. Such a result wasnotintendedby the Court in Payne which repeatedly reasoned that the sentencing authority was entitled to see only "a quick glimpse of the life petitioner chose to extinguish Y[.]” -272- (Payne, 501 U.S. at 830, 111 S.Ct. at 2611 (O’Connor,J., concurring) (quoting Mills v. Maryland (1988) 486 U.S. 367, 397, 108 S.Ct. 1860 (Rehnquist,C.J., dissenting)).) Asthe defense argued in their motion, the Edwards court "limits victim impact evidence to encompassonlythat evidence that logically shows the harm caused by the defendant. (5 CT 1548.) The defense cited People v. Saunders (1995) 11 Cal.4th 475, 549 that the courts should limit evidence in these emotional areas. (5 CT 1548-1549.) Additionally, the motion cited Judge Kennard's concurring opinion in People v. Fiero (1991) 1 Cal.4th 173, 264- 265 acknowledging that in Penal Code 190.3(a) the term circumstances “should be understood to mean only thosefacts or circumstances either known to the defendant when he committed the crime, or properly adduced in proof of the charges adjudicated at the guilt phase, emphasizing that the presently . existing statutory authorization goes no further.” (5 CT 1549.) Theintroduction ofsuch cumulative, redundant, and oppressive victim impact evidence was so unduly prejudicial as to violate the principles of fundamental fairness and the constitutional requirements of the Due Process Clause of the Fourteenth Amendment. The failure to bar victim impact evidence in accordance with the defense's motion constituted a violation of appellant’s Fifth and Fourteenth Amendmentrights to due process and equalprotection, his Sixth Amendment -273- rights to effective assistance of counsel, the confrontation ofwitnesses and an impartial jury, and his Eighth Amendmentright against cruel and unusual punishmentandhisrights under the California Constitution. The United States Supreme Court has repeatedly emphasized that because of the exceptional and irrevocable nature of the death penalty, “extraordinary measures” are required by the Eighth Amendmentto ensure the reliability of decisions regarding both guilt and punishment in a capitaltrial. (Eddings v. Oklahoma (1982) 455 U.S. 104, 118, 102 S.Ct. 869, 878 (O’Connor, J.,concurring); see also Beck v. Alabama, supra, 447 U.S. 625, 637-38, 100 S.Ct. 2382, 2389-90; Lockett v. Ohio, supra, 438 U.S. 586, 604, 98 S.Ct. 2954, 2964; Gardner v. Florida, supra, 430 US. 349, 357-58, 97 S.Ct. 1197, 1204; Woodson v. North Carolina, supra, A428 U.S. 280, 305, 96 S.Ct. 2978, 2991.) Thus,this victim impact evidence was improper and necessitates a new sentencing phasetrial for appellant. -274- XX: THE TRIAL COURT ERRED IN GIVING THE “SO SUBSTANTIAL” INSTRUCTION SUA SPONTE.” XXI: THE TRIAL COURT ERRED IN DENYING A MOTION FOR A NEW TRIAL BASED ON THE COURT’S GIVING THE “SO SUBSTANTIAL” INSTRUCTION. Appellant’s right to due process of law, equal protection of the laws, and a reliable sentence, trial by jury, and by an impartial sentencer, effective assistance of counsel, compulsory process, right of confrontation and cross- examination, proof of criminal offenses beyond a reasonable doubt and freedom fromself-incrimination, was violated by the court’s giving the “so substantial” instruction sua sponte, which misledthe jurors . That instruction was constitutionally flawed because it did not adequately convey several critical deliberative principles, and was misleading and vague in crucial respects. Giving that flawed instruction, and the court’s failure to grant appellanta new trial as a result, violated his fundamental rights to due process (U.S. Const., 14th Amend.), a fair trial by jury (U.S. Const., 6th & 14th Amends.), and a reliable penalty determination (U.S. Const., 6th, 8th & 14th Amends.) andrequires reversalofhis sentence. (See, e.g., Mills v. Maryland, supra, 486 U.S. 367, 383-384.) A. Facts in Support. The trial court, when it gave the jury instructions regarding the °° See also Argument XVIII(h) which is incorporated herein. -275- aggravating and mitigating factors, without prior discussion or warning gave the following additional instruction, termed “Supplemental Jury Instruction No. 1": Just for clarification purposes, I do want to give you one more instruction on the law at this time. And it is as follows: If you find that the aggravating factors are so substantial in comparison to the mitigating factors as to warrant death, you may vote for death. If you find that the mitigating factors are so substantial in comparison to the aggravating factors as to warrantlife without the possibility of parole, you may vote for life without the possibility of parole. If after a comparison of the aggravating and mitigating factors youare unable to concludethat either death or life without the possibility of parole is warranted, you may vote for neither. I hopethat clarifies the law with respect to this subject matter. (24 RT 5526; 5 CT 1919.) This wasthelastjury instruction given to appellant’s jury. As there was no prior warning or discussion with counsel, the defense objected to this instruction when it was given. The objection to the instruction about mitigating evidence wasthat there was no default position for the jury to vote for a life sentence. The court agreed that “[y]ou had no opportunity beforehandto say anything aboutit. I will agree with that.” Once it was given “the jury was gone almost immediately.” (24 RT 5569.) In a motionfor a newtrial, the defense arguedthere is someauthority that life should be the default position. (24 RT 5570.) The court said that there is no burdenofproof and said that the words “so substantial” were not in the -276- statute but in the case law. The court tookthe position that “so substantial” “means sufficient to warrant,” that the question is not quantitative, but qualitative. (24 RT 5571.) The court stated that “[s]o substantial” “is not adding anything different to whatis in the statute about outweighs.” (24 RT 5572.) Defense counsel disputed that and cited CALJIC 8.88 for the proposition that “so substantial for the aggravating factors but not for mitigating factors. “There is a distinction there.” (/d.) As defense counsel stated, “aggravating and mitigating are not coveredbythestatute....[h]owever, weseeno statutory intent to require death if the jury merely finds more bad than good aboutthe defendant, and to permitlife withoutparole only if it finds more good than bad.” (24 RT 5573.) The trial court said that “they specifically used that language to makesure thatpeople understoodthat this- case wasnot a quantitative analysis that was being called upon. There was a qualitative or normative analysis.” (24 RT 5574.) Therefore,the court added, there is no burdenofproofin this matter. Defense counsel argued again that “lt]hey are talking about qualitative analysis.” One mitigating factor could outweigh many aggravating factors, they stated. (24 RT 5575.) Mr. Egan argued that the statute does not say anything about “so substantial,” just “outweighs.” (24 RT 5577.) The court opined that the defense has this concept of “so substantial” -277- to mean that “it’s not enough that the aggravating factors outweigh the mitigating factors. They must outweigh them substantially and that’s not correct.” (24 RT 5578.) Mr. Eganstated “I think that there is a tremendous amountofinconsistency there.” (24 RT 5580.) The court admittedthat“there is language”in the cases that there is a burden ofproofon the people before the jury can vote for death. (24 RT 5580.) “And IJ guess I’m enough of a Scalian. I believe you look at the language ofthe statute andthat’s where we start.” (24 RT 5581.) Thecourt thenstatedthat the instruction was factually accurate. (24 RT 5584.) Then the court noted that the issue was notraised earlier and again the defense said they had no opportunity as the jury was immediately dismissed. Defense counsel “looked at each other like we werestill puzzled...” The motion for a new trial was denied. (24 RT 5586.) B. Argument. California Penal Code section 190.3 states that after considering aggravating and mitigating factors, the jury “shall impose” a sentence of confinementin state prison for a term oflife without the possibility of parole if “the mitigating circumstances outweigh the aggravating circumstances.” (Pen. Code section 190.3.) The United States Supreme Court hasheldthat this mandatory languageis consistent with the individualized consideration ofthe petitioner’s circumstances required under the Eighth Amendment. (Boyde v. -278- California (1990) 494 U.S. 370, 377.) However,this mandatory languageis not included in CALJIC No.8.88. Instead, the instruction here informed the jury merely that the death penalty may be imposed if aggravating circumstances are “so substantial” in comparison to mitigating circumstances that the death penalty is warranted. In People v. Duncan (1991) 53 Cal.3d 955, this Court held that this formulation was permissible because “[t]he instruction clearly stated that the death penalty could be imposed only if the jury found that the aggravating circumstances outweighed mitigating (sic).” (/d.,53 Cal.3d at 978.) However, appellant respectfully submitsthat this is simply not so. The word “substantial” means only “of or having substance.” (Webster’s New World Dictionary (3d College ed. 1989) p. 1336.) Although the word carries with it the connotations “considerable,” “ample,” and “large” (id.), it neither meansnor suggests “outweigh.” Theinstruction therefore fails to conform to the requirements of Penal Code section 190.3. The instruction by its terms would plainly permit the imposition of a death penalty whenever aggravating circumstances were merely “ofsubstance”or “considerable,” even ifthey were outweighed by mitigating circumstances. By failing to conform to the specific mandate of Penal Codesection 190.3, the instruction violated the Fourteenth Amendment. (Hicks v. Oklahoma, supra, 447 U.S. 343, 346-347.) In addition, appellant submits that the instruction improperly reduced -279- the prosecution’s burden ofproofbelow that required by the applicablestatute. Aninstructional error that mis-describes the burden ofproof, and thus “vitiates all the jury’s findings,” can never be shown to be harmless. (Sudlivan v. Louisiana (1993) 508 U.S. 275, 281, emphasis in original.) i. The instruction caused the jury’s penalty choice to turn on an impermissibly vague and ambiguousstandard. The question ofwhetherto impose a death sentence hinged on whether the jurors were “persuaded that the aggravating circumstances [we]re so substantial in comparison with the mitigating circumstances as to warrant death.” (24 RT 5526; 5 CT 1919.) However, the words “so substantial” provided the jurors with no guidanceas to “what they ha{d] to find in order to impose the death penalty... .” (Maynard v. Cartwright, supra, 486 U.S. 356, 361-362.) Using that phraseviolated the federal constitution becauseit created a vague, directionless and unquantifiable standard, inviting the sentencer to impose death throughthe exercise of “the kind of open-ended discretion held invalid in Furman”[ v. Georgia (1972) 408 U.S. 238] (dd.at 362.) The Georgia Supreme Court found that the word “substantial” causes vagueness problems whenusedto describe the type of prior criminalhistory jurors may consider as an aggravating circumstancein a capital case. Arnold y. State (Ga. 1976) 224 S.E.2d 386, 391, held that a statutory aggravating -280- circumstance which askedthe sentencer to consider whether the accused had “a substantial history of serious assaultive criminal convictions” did “not providethe sufficiently ‘clear and objective standards’ necessary to controlthe jury’s discretion in imposing the death penalty. [Citations.]” (See Zantv. Stephens, supra, 462 U.S. 862, 867,fn. 5.)”' Appellant acknowledgesthat this Court has opinedthat,in this context, “the differences between [Arnold and California capital cases] are obvious.” (People v. Breaux (1991) 1 Cal.4th 281, 316, fn. 14.) However, Breaux’s summary disposition ofArnold does not specify what those “differences”are, or how they impactthe validity ofArnold’s analysis. Appellant submits that the differences between those cases do not undercut the Georgia Supreme Court’s reasoning. This case has at least one quality in common with Arnold and Breaux: it featured penalty-phase instructions which did not“provide the sufficiently ‘clear and objective standards’ necessary to control the jury’s discretion in imposing the death penalty.” (Arnold, supra, 224 S.E.2d at 391.) The instant instruction,like the one in Breaux, uses the term “substantial” to explain how jurors should measure and weigh the “aggravating evidence”in deciding on 5! The United States Supreme Court has specifically recognized the portion of the Arnold decision invalidating the “substantial history” factor on vagueness grounds. (See Gregg v. Georgia (1976) 428 U.S. 153, 202.) -281- the correct penalty. In fact, using the term “substantial” arguably givesrise to more severe problemsthanthose identified in Arnold, becausethe instruction here governs the very act of determining whether to sentence the defendant to death, while the instruction at issue in Arnold only defined an aggravating circumstance. Nothing aboutthe instruction given here “implies any inherent restraint on the Godfrey v. Georgia, supra, 446 U.S. 420, 428.) Because the instruction rendered the penalty determination unreliable, the death judgment must be reversed. ii. The instruction failed to inform the jurors that the central determination is whether the death penalty is appropriate, not simply authorized. Theultimate questionin the penalty phase ofanycapital caseis whether deathis the appropriate penalty. (Woodson v. North Carolina, supra, 428 U.S. 280, 305; People v. Brown (1985) 40 Cal.3d 512, 541, rev’d on other grounds, California v. Brown, 479 U.S. 538.) However, CALJIC No. 8.88 does not make that standard ofappropriatenessclear. Telling the jurors they may return a judgmentof death if the aggravating evidence “warrants” death does not inform them thatthe central inquiry is whether death is the appropriate penalty. Arationaljuror could find in a particular case that death was warranted but not appropriate, because “warranted”hasa considerably broader meaning than “appropriate.” Merriam-Webster’s Collegiate Dictionary (10th ed. 2001) -282- defines the verb “warrant” as, inter alia, “to give warrant or sanction to” something,or “to serve as or give adequate ground for” doing something. (Id. at 1328.) By contrast, “appropriate” is defined as “especially suitable or compatible.” (Jd. at 57.) Thus, a verdict that deathis “warrant[ed|” might mean simplythat the jurors foundthat such a sentence was permitted, not that it was “especially suitable,” fit, and proper, i.e., appropriate. The Supreme Court has demandedthat death sentences bebasedon the conclusionthat death is the appropriate punishment, not merely one that is warranted. To satisfy “t]he requirement ofindividualized sentencing in capital cases” (Blystonev. Pennsylvania (1990) 494 U.S.299, 307), the punishment must fit the offender and the offense; i.e., it must be appropriate. Whether death is “warranted” is decided when the jury finds the existenceofaspecialcircumstanceauthorizing the deathpenalty.(See People - v. Bacigalupo (1993) 6 Cal.4th 457, 462, 464.) Thus, evenifthe jury makes the preliminary determination that death is warranted or authorizedit maystill decide that penalty is not appropriate. This crucial sentencing instruction violated the Eighth and Fourteenth Amendments by allowingthe jury to impose a death judgment withoutfirst determining that death was the appropriate penalty. The death judgmentis thus constitutionally unreliable (U.S. Const., 8th & 14th Amends.) and denies due process. (U.S. Const., 14th Amend.; Hicks v. Oklahoma, supra, 447 U.S. -283- 343, 346.) The judgment must therefore be reversed. iii. The instruction failed to inform the jurors that they were required to impose life without the possibility of parole if they found that mitigation outweighed aggravation. Section 190.3 directs that after the jury considers the aggravating and mitigating factorsit “shall impose” a sentence ofimprisonment for life without the possibility of parole if “the mitigating circumstances outweigh the aggravating circumstances.” (Pen. Code section190.3.) The United States Supreme Court has held that this requirement is consistent with the individualized consideration of the defendant’s culpability required by the Eighth Amendment. (See Boyde v. California, supra, (1990) 494 U.S. 370, 377.) This mandatory languageis not included in CALJIC No.8.88, which tells the jury that death may be imposedifthe aggravating circumstancesare “go substantial” in comparison to the mitigating circumstances that death is warranted. Useofthe phrase “so substantial” does not properly convey the “sreater than” test mandated by section 190.3. CALJIC No. 8.88 would permit the imposition of a death penalty whenever aggravating circumstances were “of substance” or “considerable,” even if outweighed by the mitigating circumstances. Becauseit fails to conform to the specific mandate ofsection 190.3, CALJIC No.8.88 violates the Fourteenth Amendment. (See Hicksv. Oklahoma, supra, 447 U.S.at 346.) -284- In addition,the instruction improperly reduced the prosecution’s burden of proof below that required by section 190.3. An instructional error that misdescribes the burden of proof, and thus “vitiates a// the jury’s findings,” can never be harmless. (Sullivan v. Louisiana, supra, 508 U.S. 275, 281 (emphasisoriginal).) This Court has approvedthe language ofCALJIC No.8.88 on the basis that since it states that a death verdict requires that aggravation outweigh mitigation,“it [i]s unnecessary to instruct the jury of the converse.” (People vy, Duncan, supra, 53 Cal.3d 955, 978.) Appellant respectfully asserts that the Court’s conclusion conflicts with numerous opinions disapprovinginstructions emphasizing the prosecution’s theory of a case while minimizing or ignoring the defense theory. (See, e.g., People v. Moore (1954) 43 Cal.2d 517, 526- 529: People v.-Costello(1943)21-Cal.2d.760;-People v. Kelley (1980)113- Cal.App.3d 1005, 1013-1014; see also Reagan v. United States (1895) 157 U.S. 301, 310.) The law doesnotrely on jurorsto infer one rule from the statement of its opposite. (See People v. Moore, supra, 43 Cal.2d at 526-527.) Thus, even assuming that the instruction at issue here wasa correct statement of law, it stated only the conditions under which a death verdict could be returned, and not those under which a verdictoflife was required. It is well-settled that in criminaltrials thejury must be instructed on any -285- defense theory supported by substantial evidence. (See People v. Glenn (1991) 229 Cal.App.3d 1461, 1465; United States v. Lesina (9th Cir. 1987) 833 F.2d 156, 158.) Denying that fundamentalprinciple in appellant’s case deprived him of due process. (See Evitts v. Lucey (1985) 469 U.S. 387, 401; Hicksv. Oklahoma, supra, 447 U.S. at 346.) Moreover, CALJIC No. 8.88 is not saved by the fact that it is a sentencing instruction, as opposed to one guiding the determination of guilt or innocence,since reliance on such a distinction would violate equal protection. (See U.S. Const., 14th Amend.; Cal. Const.,art. I, §§ Pyler v. Doe (1982) 457 U.S. 202, 216-217.) Moreover,slighting a defense theory in instructionsnot only denies due process,but also the rightto ajury trial, becauseit effectively directs a verdict as to certain issues in the case. (See Zemina v. Solem (D.S.D. 1977) 438 F.Supp. 455, 469-470, aff'd and adopted, Zeminav. Solem (8th Cir. 1978) 573 F.2d 1027, 1028.) Reversal of appellant’s death sentenceis required. iv. Conclusion As set forth above, CALJIC No. 8.88, failed to comply with the requirements ofthe due process clause ofthe Fourteenth Amendment, and the cruel and unusual punishmentclause of the Eighth Amendment. Therefore, appellant’s death judgment mustbe reversed. -286- XXII: CALIFORNIA’S SENTENCING SCHEME IS UNCONSTITUTIONAL UNDERTHEFIFTH,SIXTH, EIGHTH AND FOURTEENTH AMENDMENTS. Manyfeatures of California’s capital sentencing scheme, aloneor in combination with each other, violate the United States Constitution. Because challenges to mostofthese features have been rejected by this Court, appellant presents these argumentsherein an abbreviated fashion sufficientto alert the Court to the nature ofeach claim andits federal constitutional grounds, and to provide a basis for the Court’s reconsideration of each claim in the contextof California’s entire death penalty system. To date the Court has considered each of the defects identified below in isolation, without considering their cumulative impact or addressing the functioning of California’s capital sentencing scheme as a whole. This analyticapproachis constitutionallydefective.AstheU.S. Supreme Court has. stated, “[t]he constitutionality ofa State’s death penalty system turns on review of that system in context.” (Kansas v. Marsh, supra, 548 U.S. 163, 179,fn. 6.” See also, Pulley v. Harris, supra, 465 U.S. 37, 51 (while comparative 2 ‘In Marsh, the Supreme Court considered Kansas’s requirement that death be imposedif a jury deemed the aggravating and mitigating circumstancesto be in equipoise and on that basis concluded beyond a reasonable doubtthat the mitigating circumstances did not outweigh the aggravating circumstances. This was acceptable, in light of the overall structure of “the Kansas capital sentencing system,” which, as the Court noted, “ is dominated by the presumption that life imprisonmentis the appropriate sentence for a capital conviction.” (548 U.S. at 178.) -287- proportionality review is not an essential component of every constitutional capital sentencing scheme,a capital sentencing scheme may be so lacking in other checks on arbitrariness that it would not pass constitutional muster without such review).) Whenviewed as a whole, California’s sentencing schemeis so broad in its definitions of whois eligible for death and so lacking in procedural safeguardsthatit fails to provide a meaningful orreliable basis for selecting the relatively few offenders subjected to capital punishment. Further, a particular procedural safeguard’s absence, while perhapsnot constitutionally fatal in the context of sentencing schemesthat are narrower or have other safeguarding mechanisms, may render California’s scheme unconstitutional in that it is a mechanism that might otherwise have enabled California’s sentencing schemeto achievea constitutionally acceptable level ofreliability. California’s death penalty statute sweepsvirtually every murderer into its grasp. It then allows any conceivable circumstance of a crime — even circumstances squarely opposedto each other(e.g., the fact that the victim was young versusthefact that the victim wasold,the fact that the victim waskilled at homeversusthefact that the victim waskilled outside the home) — tojustify the imposition of the death penalty. Judicial interpretations have placed the entire burden of narrowing theclass of first degree murderers to those most deserving of death on Penal Codesection 190.2, the “special circumstances” -288- section ofthe statute — but that section was specifically passed for the purpose of making every murderereligible for the death penalty. There are no safeguards in California during the penalty phase that would enhance the reliability of the trial’s outcome. Instead, factual prerequisites to the imposition ofthe death penalty are found by jurors who are notinstructed on any burdenofproof, and who maynot agree with each other at all. Paradoxically, the fact that “death is different” has been stood onits head to meanthat proceduralprotections taken for granted in trials for lesser criminal offenses are suspended when the question is a finding that is foundational to the imposition of death. The result is truly a “wanton and freakish” system that randomly chooses amongthe thousands ofmurderers in California a few victims ofthe ultimate sanction. ~~ -In--People- v:-Schmeck(2005) 37-Gal.3d 240,-a-capital -appellant.. presented a numberof often-raised constitutional attacks on the California capital sentencing schemethat hadbeenrejected in prior cases. As this Court recognized, a major purposein presenting such argumentsis to preserve them for further review. (Id. at 303.) This Court acknowledged thatin dealing with these attacks in prior cases, it had given conflicting signals on the detail needed in order for an appellant to preserve these attacks for subsequent review. (/d. at 303, fn. 22.) In order to avoid detailed briefing on such claims in future cases,the Court authorizedcapital appellants to preservethese claims -289- by “do[ing] no morethan(i) identify[ing] the claim in the context ofthe facts, (ii) not{ing] that we previously have rejected the same or a similar claim in a prior decision, and(iii) ask[ing] us to reconsider that decision.” (Id. at 304.) Appellant has no wish to unnecessarily lengthen this brief. Accordingly, pursuant to Schmeck and in accordance with this Court’s own practice in decisions filed since then,” appellant identifies the following systemic and previously rejected claims relating to the California death penalty schemethat require reversal of his death sentence and requests the Court to reconsiderits decisions rejecting them: A. Lack of written findings The California death penalty scheme fails to require written findings by the jury as to the aggravating and mitigating factors found andrelied on, in violation ofFifth, Sixth, Eighth and Fourteenth Amendmentrights to due process, to equalprotection,to reliable determinationsofthe appropriateness of the death penalty and ofthe fact that aggravation outweighed mitigation, and freedom from cruel and unusual punishment. This Court has repeatedly 3 See, e.g., People v. Taylor (2010) 48 Cal.4th 574, 108 Cal.Rptr.3d 87 at 169-170 and People v. McWhorter (2009) 47 Cal.4th 318, 377-379. See also, e.g., People v. Collins (2010) 2010 WL 2104766at *60; People v. Thompson (2010) 2010 WL 2025540,at *45-*46; Peoplev. D’Arcy (2010) 48 Cal.4th 257, 307-309; People v. Mills (2010) 48 Cal.4th 158, 213-215; People v. Ervine (2009) 47 Cal.4th 745, 810-811; People v. Carrington (2009) 47 Cal.4th 145, 198-199; People v. Martinez (2010) 47 Cal.4th 911, 967-968. -290- rejected these arguments. (See, ¢.g., People v. Collins, 2010 WL 2104766 at *60; People v. Thompson, 2010 WL 2025540,at *45-*46; People v. Taylor, 108 Cal.Rptr.3d 87 at 170; People v. D'Arcy, 48 Cal.4th at 308; People v. Mills, 48 Cal.4th at 213 ; People v. Martinez, 47 Cal.4th at 967.) The Court’s decisions should be reconsidered because they are inconsistent with the aforementioned provisions of the federal Constitution. B. Failure to place the burdenofproof on the prosecution to establish that death is appropriate beyond a reasonable doubt and that related matters have been proven beyond a reasonable doubt. i. The jury was repeatedly advised and instructed that there was no burdenof proof. Thejurors in this case were not instructed that the reasonable doubt standard governedtheir ultimate determinations with respectto the appropriate penalty in this case, with that burden of proofresting squarelyupon the prosecution. They werenotinstructed that the prosecution also had the burden to establish the existenceofall aggravating circumstances beyond a reasonable doubt, or that they could impose a sentence of death only if they were persuaded beyonda reasonable doubt by the prosecution that the aggravating circumstances were so substantial in comparison with the mitigating circumstances that the death penalty was justified and that death was the appropriate penalty to be imposedunderall the circumstances. Indeed, during -291- voir dire, before and during closing arguments,andduring thejudge’s delivery ofinstructions, the jurors were repeatedly and affirmatively advised by both parties’ counsel andinstructed bythetrial court that there was no burden of proofplaced upon either party with respect to aggravating or mitigating factors or the penalty determination itself. Before closing arguments commenced,thetrial court instructed thejury as follows: The defendantin this case has been found guilty of murder of the first degree. The allegations that the murder was committed under special circumstances have been especially found to be true. It is the law ofthis case that the penalty for a defendant found guilty of murder if the first-degree shall be death or confined(sic) in the state prison for life without possibility of parole... This underthe lawsofthis state, you must determine, ifyou can do so, which of these penalties shall be imposed upon the defendant.... (24 RT 5375; 5 CT 1859.) Further, in determining which penalty is to be imposed youshall consider, take into account, weigh and be guided by the following factors, if applicable... (24 RT 5376; 5 CT 1865.) Anaggravatingfactoris a fact, condition, or event attending the commission of a crime whichincreasesits guilt or enormity, or addsto its injurious consequences which is above and beyond the elements of the crimeitself. A mitigating circumstanceis a fact, condition or event which does not constitute a justification or excuse for the crime in question, but may be considered as an extenuating circumstance in determining the appropriateness of the death penalty.... (24 RT 5378; 5 CT 1867.) -292- A mitigating circumstance does not have to be proved beyond areasonable doubt, nor doanyofthe aggravating circumstances have to be proved beyond a reasonable doubt, excepting those set forth...in paragraph (b) above... (24 RT 5398; 5 CT 1911.) The weighing ofaggravating and mitigating circumstances does not mean a mere mechanical countingoffactors on each side of an imaginary scale,or the arbitrary assignmentofweights to any of them. Youare free to assign whatever moral or sympathetic value you deem appropriate to each andall ofthe various factors you are permitted to consider. In weighingthe various circumstances, you determine underthe relevant evidence which penalty is justified and appropriate by considering the totality of the aggravating circumstances with the totality of the mitigating circumstances. (24 RT 5400; 5 CT 1914.) Under California law, a defendant convictedoffirst-degree special- circumstance murder cannotreceive a death sentence unless a penalty-phase jury subsequently (1) finds that aggravating circumstancesexist, (2) finds that the aggravatingcircumstancesoutweighthemitigatingcircumstances,and (3)- finds that death is the appropriate sentence. Thejury in this case wasnottold that these three decisions had to be made beyond a reasonable doubt, an omission thatviolated the Supreme Court decisions in Ring v. Arizona (2002) 536 U.S. 584 andits progeny. Nor was the jury given any burden ofproof or persuasionatall (exceptas to a prior conviction and/orotherviolent criminal conduct). These wereerrors that violated appellant’s rights under the Fifth, Sixth, Eighth and Fourteenth Amendmentrights to due process,to ajury trial, to equal protection, to a reliable and non-arbitrary determination of the -293- appropriateness of the death penalty, and freedom from cruel and unusual punishment. This Court has repeatedlyrej ected these arguments. (See, e.g., People v. Collins, 2010 WL 2104766 at *60; People v. Taylor, 108 Cal.Rptr.3d 87 at 169; People v. D'Arcy, 48 Cal.4th at 308; People v. Mills, A8 Cal.4th at 213 ; People v. Martinez, 47 Cal.4th at 967 ; People v. Ervine, 47 Cal.4th at 810-811 ; People v. McWhorter, 47 Cal.4th at 379; People v. Schmeck, 37 Cal.4th at 304.) The Court’s decisions should be reconsidered because they are inconsistent with the aforementioned provisions of the federal Constitution. ii. Apprendi holdsthatallocating to the prosecution the burden of proofbeyond a reasonable doubtis requiredby the Fifth, Sixth and Fourteenth Amendments. A state may not impose a sentence greater than that authorized by the jury's simpleverdictofguilt, unless the facts supporting an increased sentence (other than a prior conviction) are also submitted to the jury and provedbythe prosecution beyond a reasonable doubt, per the general due process requirements of the Fifth and Fourteenth Amendments and the right to jury trial guaranteed by the Sixth Amendment. Apprendi v. New Jersey (2000) 530 U.S. 466, 476. California's death penalty sentencing scheme violates each of these constitutional guarantees and Apprendiby failing to require capital juries to find aggravating factors beyond a reasonable doubt. -294- Under California's statutory scheme, a conviction for first degree murder simpliciter carries a maximum sentence of 25 years to life. (Penal Code section 190.) Ifthe jury finds the defendantguilty of first degree murder andalso finds special circumstancesto betrue,the offense carries a maximum sentence oflife without the possibility ofparole. (Penal Code section 190.2.) Under California's statutes, neither a judge nor a jury may sentence a defendant to death based solely on the jury's findings at the guilt phase. In order to impose the increased punishment of death, the jury must make additional factual findings and weigh those findings at the penalty phase. These findings include the existence ofat least one aggravating factor plus a finding that the aggravating factoror factors outweigh any mitigating factors. (Penal Codesection 190.3.) Under the Apprendiholding, because these three additional mattersare absolutely requiredin order to impose an increased punishment,they constitute sentencing factors that must be proved beyond a reasonable doubt by the prosecution. (Apprendi, 530 U.S. at 476.) Thus, underthe Apprendi rationale, appellantwasentitled to a jury instruction that before a death verdict could be returned,the jury wasrequiredto find that the prosecution had proven beyond a reasonable doubtthat: (1) any aggravating factors upon whichit relied were true; (2) the aggravating factor or factors outweighed the mitigating factors, and (3) death wasthe appropriate punishment. Thefailure of California law -295- to require such instructions renders California's death penalty scheme unconstitutional; the trial court’s failure to provide such instructionsto thejury here renders appellant’s death sentence invalid. Without a jury instruction allocating the proper burden of proofto the prosecution to establish beyond a reasonable doubt the existence of the ageravating factors, and stating the absence of any burden onthe defense to establish the existence of any mitigating factors, (see Apprendi, supra, at 484- 485, citing and discussing Mullaney v. Wilbur (1975) 421 U.S. 684), Apprendi bars the imposition ofthe death penalty. No such instruction wasgivenin this case. The failure to properly instruct on the burden ofproofis a structural error "without which [the penalty trial] cannot serve its function.” (Sudlivan v. Louisiana, supra, 508 U.S. 275, 281.) Itis, therefore, reversible perse. (Ud. at 281-82.) iii. Placing the burden ofproofbeyond a reasonable doubt upon the prosecution is also required by the Fifth, Sixth, Eighth and Fourteenth Amendments, Additionally, even apart from Apprendi, the failure to require that the necessary penalty phase determinations for imposition of a death sentence be made beyond a reasonable doubt with the burden of proof resting upon the prosecution also violates the Fifth Amendment guarantee of due process, the Sixth Amendment guarantee of trial by an impartial jury, the Fourteenth Amendmentguarantees of due process and equalprotection, and the Eighth -296- and Fourteenth Amendmentrequirement of heightenedreliability in a death determination. (Walton v. Arizona (1990) 497 U.S. 639; Ford v. Wainwright (1980) 477 U.S. 399, 414; Beck v. Alabama (1980) 447 USS. 625.) The same is true regarding the absence of any burden on the defenseto establish the existence of any mitigating factors. (See Mullaney v. Wilbur, supra, 421 U.S. at 697-698.) In this case, the jury was instructed to consider three factors, which “if applicable,” (24 RT 5376) could be either aggravating or mitigating factors: (a), the circumstancesof the crime of which the defendant was convicted in the present proceeding and the existence of the special circumstances foundto betrue. (b), the presence or absence of criminal activity by the defendant, other than the crimes for which the defendant has beentried in the present proceedings, which involvedthe use or attempted use-offorce-or-violence or the-express orimplied - threat to use force or violence; (c) the presence or absenceofany prior felony conviction, other than the crimes for which the defendant has been tried in the present proceedings; (24 RT 5376, 5379; 5 CT 1865.) The jurors were also instructed that all the other enumerated factors “can only be considered by you to be mitigating factors” (24 RT 5379): (d) Whetheror not the present offense was committed while the defendant was under the influence of a mental or emotional disturbance; (e) whetheror not the victim was a participant in the victim’s -297- (sic) homicidal conduct or consented to the homicidal act; (f) whether or not the offense was committed under circumstances which the defendant reasonably believed to be a justification or extenuation for his conduct; (g) whether or not the defendant acted under extreme duress or under the substantial domination of another person; (h) Whetheror notat the time ofthe presentoffense the capacity of the defendantto appreciate the criminality of his conduct or to conform his conduct to the requirements of law was impaired as a result of mental disease or defect or the effects of intoxication; (i) the age of the defendantat the time ofthe crime; (j) whether or not the defendant was an accomplice to the offense and his participation in the commissionof the offense wasrelatively minor; (k) any other circumstance which extenuates the gravity of the present offense even though it is not a legal excuse for the crime, including but not limited to anything relating to defendant’s character, background,history, mental or physical conditionor record, or related to the circumstancesattendantto the crime for which he has been convicted that youfind serves as a basis for a sentencein this case ofless than death. (24 RT 5377-5378; 5 CT 1865-1866.) After arguments, the court then instructed the jury sua sponte that Just for clarification purposes, I do want to give you one more instruction on the law at this time. Andit is as follows: If you find that the aggravation factors are so substantial in comparison to the mitigating factors as to warrant death, you may vote for death. If you find that the mitigating factors are so substantial in comparisonto the aggravating factors as to warrantlife without the possibility of parole, you may vote for life without the possibility of parole. -298- If after a comparison of the aggravating and mitigating factors you are unable to concludethat either death or life without the possibility of parole is warranted, you may vote for neither. (24 RT 5526-5527.) Thus, the jury itself had the responsibility of determining what the aggravating circumstances andthe mitigating circumstances were and to set the value ofthose circumstances independently. And,as noted, infra, the jury was instructed by the trial court that neither side had any burden of proof regarding the aggravating or mitigating factors, or the ultimate penalty determination. The failure to give properinstructions violated due process and equal protection guaranteesofthe Fifth and Fourteenth Amendments, as wellas the Eighth Amendment requirement of a reliable penalty determination. The burden ofproving appropriate punishment mustbe the sameasthat ofproving guilt or special circumstances: namely, beyond a reasonable doubt with the burdenresting upon the prosecution. (See, e.g., nre Winship (1970) 397 US. 358; Walton v. Arizona, supra, 497 U.S. 639.) Notably, the United States Supreme Court hasheld that: The function of a standard ofproof,as that concept is embodied in the Due Process Clause andin the realm offact finding,is to instruct the fact finder concerning the degree of confidence our society thinks he should have in the correctness of factual conclusionsfor a particular type of adjudication. 54 This “so substantial” instruction is also discussed in Issue XXI. -299- (Addington v. Texas (1979) 441 U.S. 418, 423, quoting In Re Winship, supra, 397 U.S. at 370 (Harlan, J., concurring) (internal quotation marks ~ omitted).) C. Lack of requirement that the jury unanimously find that specific aggravating circumstancesexist. Duringthe penalty phase,the state introduced evidence that appellant had a prior felony conviction. This evidence was admitted pursuantto section 190.3, subdivision (c). (24 RT 5376.) The jurors were instructed they could not rely on the prior conviction unless it had been proven beyond a reasonable doubt. The jurors were never told that before they could rely on this aggravating factor, they had to unanimously agree that defendant had suffered this prior conviction. In light of the Supreme Court decisions in Ring v. Arizona, supra, 536 U.S. 584 andits progeny,the trial court’s failure violated appellant’s Sixth Amendment right to a jury trial on the “aggravating circumstance[s] necessary for imposition of the death penalty.” (Id. at 609.) In the absence of a requirement of jury unanimity, defendant was also deprived of his Eighth Amendmentright to a reliable and non-arbitrary penalty phase determination. This Court has repeatedly rejected these arguments. (See, e.g., People v. Collins, 2010 WL 2104766 at *60; People v. Taylor, 108 Cal.Rptr.3d 87 at 170; Peoplev. Martinez, 47 Cal.4th at 967; People v. Schmeck, 37 Cal.4th at 304.) The Court’s decisions should be -300- reconsidered becausethey are inconsistentwith the aforementionedprovisions of the federal Constitution. D. Lackof inter-case proportionality review. The California death penalty scheme fails to require inter-case proportionality review, in violation of Fifth, Sixth, Eighth and Fourteenth Amendment rights to due process, to equal protection, to reliable determinations ofthe appropriateness of the death penalty andofthe fact that aggravation outweighed mitigation, and freedom from cruel and unusual punishment. This Court has repeatedly rejected these arguments. (See, e.g., People v. Collins, 2010 WL 2104766 at *60; People v. Thompson, 2010 WL 2025540, at *45-*46; People v. Taylor, 108 Cal.Rptr.3d 87 at 170; Peoplev. D’Arcy, 48 Cal.4th at 308; People v. D'Arcy, 48 Cal.4th at 308-309; People v- Mills; 48-Gal4th at 214 ;Peeple-v.-Martinez,47-Cal.4th_at-968.).. The. Court’s decisions should be reconsidered because they are inconsistent with the aforementioned provisions of the federal Constitution. E. Failure to adequately narrow the class of offenders eligible for the death penalty. California’s capital punishment scheme,as construed by this Court in People v. Bacigalupo (1993) 6 Cal.4th 457, 475-477,and as applied, violates the Eighth Amendmentbyfailing to provide a meaningful and principled way to distinguish the few defendants who are sentenced to death from the vast -301- majority who are not. This Court has repeatedlyre} ected this argument. (See, e.g., People v. D’Arcy, 48 Cal.4th at 308; People v. Mills, 48 Cal.4th at 213; People v. Martinez, 47 Cal.4th at 967; Peoplev. Schmeck, 37 Cal.4th at 304.) The Court’s decisions should be reconsidered becausethey are inconsistent with the aforementioned provision of the federal Constitution. F. Unboundedandexcessive prosecutorial discretion. In California, the prosecutor has sole authority to make whatis literally a life or death decision, without any legal standards to be used as guidance. Irrespective of whether prosecutorial discretion in charging is constitutional in other situations,the difference between life and death is notat all analogous to the usual prosecutorial discretion situation, e.g., the difference between charging something as a burglary or a theft. As it stands, an individual prosecutor has complete discretion to determine whetherapenalty hearing will be held to determine if the death penalty will be imposed. As Justice Broussard notedin his dissenting opinion in People v. Adcox (1988) 47 Cal.3d 207, 275-276, this creates a substantial risk of county-by-county arbitrariness. Under this statutory scheme, some offenders will be chosen as candidatesfor the death penalty by one prosecutor, while other offenders with similar qualifications in different counties will not be singled out for the ultimate penalty. The decision to seek the death penalty under California law will inevitably be influenced byirrelevant considerations such as the size of -302- the county budget, the notoriety of the victim, the race of the defendant, and the proximity of the next general election. These factors are particularly exaggerated when,asin this case, the prosecution is personally undertaken by an elected official. (See Maynard v. Cartwright, supra, (1988) 486 U.S. 356, 363 (discussing the holding in Godfrey v. Georgia, supra, 446 U.S. 420).) Moreover, the absenceofstandardsto guide the prosecutor’s discretion permits reliance on constitutionally irrelevant and impermissible considerations, or simple arbitrariness. The arbitrary and wantonprosecutorial discretion allowed by the California scheme — in charging, prosecuting and submitting a case to the jury as a capital crime — merely compounds, in application, the effects of vagueness and arbitrariness inherent on the face of the California statutory scheme. Just like the “arbitrary and wanton” jury discretioncondemned in-Woodson v.-North Carolina (1976) 428 U.S.280, 303, such unprincipled, broad discretion is contrary to the principled decision- making mandated by Furman v. Georgia (1972) 408 U.S. 238. In general, state action that is bereft of standards, without anything to guide the actor and nothing to prevent the decision from being completely arbitrary, is a violation of a person’s right to due process oflaw. (Kolenderv. Lawson (1983) 461 U.S. 352, 358.) This standard applies to prosecutors as muchas otherstate actors. (/d.) In this case, the offenses with which appellant was charged were worthy -303- of condemnation. Sois any charge that is potentially capital. This case involved a single homicide. However,prosecutors sometimesdo not seek the - death penalty for capital offenses, even in cases involving multiple murders. (See, e.g., People v. Walker (1993) 17 Cal.App.4th 1189 (negotiated plea bargain to two countsoffirst-degree murder, with sentence of25 years to life); People v. Bobo (1990) 229 Cal.App.3d 1417, 1421-1422 (defendant convicted of arson and three countsoffirst-degree murder (by stabbing); death penalty not sought); People v. Moreno (1991) 228 Cal.App.3d 564, 567-568 (defendant convicted of two counts of first-degree murder, burglary and attempted robbery; death penalty waived).) The absence ofstandardsto guide such decisions falls under Kolender and other vagueness Cases. There is no statewide standard by whichthe decision to seek the death penalty may be reviewed, there is no oversight agency to insure uniformity, and there is no authority accorded thetrial court to review the death decision for abuse of discretion. Therefore, there is a substantial risk of county-by-county arbitrariness, in violation of the Equal Protection Clause. (See Bush v. Gore (2000) 531 U.S. 98.) The vagueness and overbreadth of California’s death penalty statute, described above, further compound the unguided,arbitrary nature of capital sentencing decisions within this State. -304- G. Instructing the jury in the terms of a unitary list of aggravating and mitigating factors. i. Instructing the jury with Section 190.3's unitarylist, per CALJIC No. 8.84.1, violated the Fifth, Sixth, Eighth and Fourteenth Amendments. Appellant’s jury was instructed using a unitary list of aggravating and mitigating factors numbered(a) through (k) as discussed supra. (24 RT 5376- 5378: 5 CT 1865-1866.) The court then informed the jury that “[t]he factors set forth in paragraphs (a) through (k) above constitute aggravating and/or mitigating factors.” (24 RT 5378; 5 CT 1867.) The court then went on, confusingly, to inform the jurors that “the factors set forth in (a), (b) and (c) abovearethe only factors that can be considered by you as aggravating factors. However, you mayalso find one or more of these factors to be a mitigating factor.” (24 RT 5379; 5 CT 1870.) The court also told the jurors that “[t]he factors set forth in all paragraphs other than (a), (b)and (c) ‘can only be considered by youto be mitigating factors.” (24 RT 5379; 5 CT 1870.) These CALJIC 8.84.1 instructions could only have confused the jury, failed to inform them whether factors (a) through (c) were aggravating or mitigating and allowedthem to be consideredaseither, and failed to give any definition or explanation of aggravation which might have served as a narrowingprinciple in the application of the factors. These errors resulted in unconstitutionally arbitrary and inconsistent sentencing, in several distinct -305- respects. Permitting the jury to use mitigating evidence in aggravation | impermissibly allows the imposition ofthe death sentence in an arbitrary” and unprincipled manner, violating the Eighth and Fourteenth Amendments. (See Gregg v. Georgia, supra, 428 U.S. at 192; Zant v. Stephens, supra, 462 US. at 865.) Theinstructional omissions and ambiguities here made such errors even more likely and demonstrate the unconstitutional vagueness of Penal Code § 190.3 and CALJIC No.8.84.1's unitary list and its death-bias. The unconstitutional vagueness of section 190.3's and CALJIC No. 8.84.1's unitary list therefore gave the jury no guidance whatsoever and allowed the penalty decision process to deteriorate into a standardless, confused, subjective, arbitrary and unreviewable determination for each juror, in violation ofthe Fifth, Sixth, Eighth and Fourteenth Amendments. (Gregg vy. Georgia, supra, 428 U.S. at 192; Godfreyv. Georgia, supra, 446 U.S.at 428-429: Stringer v. Black (1992) 503 U.S. 222 at 235-236; Zantv. Stephens (1983) 462 U.S. 862 at 865.) 55 With no guidance afforded to juries as how the state deems mental disturbanceor age to be “particularly relevant to the sentencing decision,” (Gregg v. Georgia, supra, 428 U.S.at 196), identically situated defendants will be sentenced differently depending purely upon the subjective predilectionsof the jurors involved. -306- ii. Section 190.3 and the instructions allowed the jurors to engage in an undefined, open-ended consideration of non- statutory aggravating factors. Asnoted supra, the jury was instructed to consider someofthe matters set forth in Penal Codesection 190.3 "if applicable," (24 RT 5376; 5 CT 1865) as aggravating or mitigating factors. Thus,thejury itselfhad the responsibility of determining which factors were aggravating and which were mitigating. Thejurors were informedthatthe first three factors could be considered either in mitigation or in aggravation (24 RT 5378-5379; 5 CT 1867, 1870) whichis contrary to the constitutional mandate and the practice oftwenty-two otherstates.*° °° As noted, reviewing courts often findit useful to refer to history and to the current practices of other states in determining whethera state has framed its statutes consistent with the requirements of due process. (Schad v. Arizona(1991) 501t U.S: 624 at 640.) Aninitial safeguard for capital sentencing is the enumeration of aggravating factors as such, so as to guide, channel and limit the penalty jury's consideration of evidence against the accusedto relevant matters. The vast majority of states do so,although California does not. Ofthirty- four capital punishmentstates, twenty-four have implemented statutory provisions separately listing a specified set of aggravating factors anda set of mitigating factors. (See Ala. Code § 13A-5-49, 51 (1982); Ariz. Rev. Stat. Ann. § 13-703(F), (G) (West 1993); Ark. Code Ann. §§ 5-4-604, 605 (Michie 1993); Colo. Rev. Stat. Ann. § 16-11-103(4), (5) (West 1993); Conn. Gen.Stat. Ann. § 53a-46a(g), (h) (West 1985); Fla. Stat. Ann. § 921.141 (5), (6) (West 1992); Ill. Ann. Stat. ch. 38, para. 9-1(b), (c) (Smith-Hurd 1992); Ind. Code Ann. § 35-50-2-9 (b), (c) (West 1993); Ky. Rev. Stat. Ann. § 532.025(2) (Michie 1984); La. Code Crim. Proc. Ann. art. 905.4, 905.5 (West 1993); Md. Ann. Codeart. 27, § 413 (d),(g) (1993); Miss. Code Ann. § 99-19-101 (5), (6) (1992); Mont. Rev. Code Ann. §§ 46-18-303, 304 (1992); Neb. Rev. Stat. § 29-2523 (1987); N.H. -307- Rev. Stat. Ann. § 630:5(VD),(VID (1992); N.M.Stat. Ann. §§ 31-20A-5, 6 (Michie 1990); N.C. Gen.Stat. § 15A-2000(e), (f) (1988); Ohio Rev. Code 2929.04(A), (B) (Page's 1992); 42 Pa. Cons. Stat. Ann. § 9711(d), (e) (1993); S.C. Code Ann. § 16-3-20(c) (Law. Co-op. 1992); Tenn. Code Ann. § 39-13-204(i), (j); Utah Code Ann.§§ 76-3-207(3), 76-5-202 (1993); Wash. Rev. Code Ann. §§ 10-.95.020, 070 (West 1990); Wyo. Stat. § 6-2-102 (h), Gj) (1988).) Six more states use a specific list of aggravating factors, leaving mitigating factors unspecified and open-ended. (Del. Code Ann. tit. 11, § 4209(e) (1992); Ga. Code Ann. § 17-10-30(b) (Harrison 1990); Idaho Code § 19-2515(g) (1987); Okla. Stat. Ann.tit. 21, § 701.12 (West 1983); S.D. Codified Laws Ann. § 23A-27A-1 (1993); Va. Code Ann. § 19.2- 264.2 (Michie 1990).) Texas doesnot label its penalty phase factors as "ageravating," but such a nature is apparenton the statute's face. (Tex. Code Crim. Proc. Ann.art. 37.071 (West 1993). California's statute is dramatically different, directing jurors to take into accountanyoften general factors, without designating which are aggravating and which mitigating. (Penal Code § 190.3.) Additionally, twenty states specifically guide jurors' discretion by limiting the jurors’ consideration of evidencein aggravation to matters specified by statute. (See Ariz. Rev. Stat. Ann. § 13-703 (E), (F) (West 1993); Ark. Code Ann. § 5-4-604 (Michie 1993); Colo. Rev. Stat. Ann. § 16-11-103 (West 1993); Conn. Gen. Stat. Ann. § 53a-46a(b) (West 1985); Fla. Stat. Ann. § 921.141(2)(a) (West 1992); Ga. Code Ann.§ 17-10-30 (b) (Harrison 1990); Ind. Code Ann. § 35-50-2-9 (a) (West 1993); Ky. Rev. Stat. Ann. §§ 532.025(2) (Michie 1984); La. Code Crim. Proc. Ann.art. 905.3 (West 1993); Md. Ann. Code art. 27, § 413(f) (1993); Miss. Code - Ann.§ 99-19-101(3) (1992); N.M.Stat. Ann. § 31-20A-2 (Michie 1990); N.C. Gen.Stat. § 15A-2000(e) (1988); Ohio Rev. Code. § 2929.04(A) (Page's 1992); Okla. Stat. Ann.tit. 21, § 701.10(c) (West 1993); 42 Pa. Cons. Stat. Ann. § 9711(d) (1993); S.C. Code Ann. § 16-30-20(A) (Law. Co-op. 1992); S.D. Codified Laws Ann. § 23A-27A-1 (1993); Tenn. Code Ann. § 39-13-204(i) (1993); Va. Code Ann. § 19.2-264.2 (Michie 1990).) California's statute approves the opposite procedure, explicitly permitting the open-ended use of evidencein aggravation beyond the generalstatutory categories. Section 190.3 states: In the proceedings onthe question of penalty, evidence may be presented byboth the people and the defendantas fo any matter relevant to aggravation, mitigation, and sentence including, but not -308- As quoted above,the instruction read told the jury that it should “take into account” (24 RT 5376; 5 CT 5376) factors could be considered either aggravating or mitigating. A problem with factor (d) is that “mental or emotional disturbance” (24 RT 5377; 5 CT 1865) requires the sort of subjective, vague, arbitrary, unreviewable determination by each juror as to what level of mental “disturbance” is adequate for consideration that has consistently been found constitutionally unacceptable. (See, e.g., Maynard v. Cartwright, supra, 486 U.S. at 363-364 ("especially"); Shell v. Mississippi (1990) 498 U.S. 1, 4 ("especially"); Moore v. Clarke (8th Cir, 1990) 904 F.2d 1226, 1232-1233("exceptional").) Section 190.3's unitary list and the instructions’ unitary listing offactors were unconstitutionally-vague-in failing to limitthejuryto-consideration of specified factors in aggravation or mitigation; they were confusing;they failed to guide the jury and allowed the penalty decision process to proceed in an limited to, the nature and circumstancesofthe present offense, any prior felony conviction or convictions whether or not such conviction or convictions involved a crime of violence, the presence or absence of other criminalactivity by the defendant which involved the use or attempted use of force or violence or which involved the express or implied threat to use force or violence, and the defendant's character, background, history, mental condition and physical condition. Id. (emphasis added). -309- arbitrary, capricious, death-biased and unreviewable enterprise manner, in violation of the Fifth, Sixth, Eighth and Fourteenth Amendments. (Gregg v. Georgia, supra, 428 U.S. at 192; Godfrey v. Georgia, supra, 446 U.S. at 428- 429; Stringer v. Black, supra, 503 U.S.at 235-236; Zant v. Stephens, supra, 462 U.S. at 865.) H. California's failure to provide any of the penalty phase safeguards commonly employedin other capital case jurisdictions violates the Fifth, Sixth, Eighth and Fourteenth Amendments. Asset forth supra, the United States Supreme Court has repeatedly recognizedthat the death penalty is qualitatively different in nature from any other punishment. Therefore, capital case sentencing systems may not create a substantial risk that a death judgment and execution will beinflicted in an arbitrary and capricious manner. (Gregg v. Georgia, supra, 428 U.S. at 189; Godfrey v. Georgia, supra, 446 U.S. at 431.) Furman and Gregg require that “ the State mustestablish rationalcriteria that narrow the decision maker's judgment as to whether the circumstances of a particular defendant's case” justify the sentence. (McCleskey v. Kemp (1987) 481 U.S. 279 at 305.) Accordingly, penalty phase aggravating factors in “weighing states,” such as California, may not be unconstitutionally vague. (Stringerv. Black, supra, 503 USS. at 235-236.) As discussed above, reviewing courts often find it useful to refer to -310- history and to the current practices of other states in determining whethera state has framedits statutes consistent with the requirements of due process. (Schad v. Arizona, supra, 501 U.S. at 640.) In the arguments listed above, appellant has cited variousother states with capital sentencing laws or case law which require various safeguardsto lessen the chance of an arbitrary or capricious death judgment.°”’ Such safeguards have been instituted to attempt to eliminate the use of unconstitutionally vague penalty phase factors, eliminate death-biased proceedings, eliminate arbitrary and capricious death judgments and executions, and make death judgments meaningfully reviewable on appeal. Although the various states employ varying combinations ofthese and other safeguards to fulfill the described constitutional requirements, California's system singularly fails to employ any of these safeguards, or to employ alternative but comparable measures. Therefore, California's capital case system is unconstitutional on its face and as applied here, under the Fifth, 57 The safeguards described above generally include statutory or case law requirements of: (1) written findings as to the aggravating factors found bythe jury; (2) proof beyonda reasonable doubtofthe aggravating factors; (3) jury unanimity on the aggravating factors; (4) a findingthat aggravating factors outweigh mitigating factors beyond a reasonable doubt; (5) a finding that death is the appropriate punishment beyond a reasonable doubt; (6) a procedure to enable the reviewing court to meaningfully evaluate the sentencer's decision; and (7) definition of which specified relevant factors are aggravating, and whichare mitigating. -311- Sixth, Eighth and Fourteenth Amendments, as described above. I. The California Supreme Court’s failure to conduct constitutionally adequate review of capital sentences. This Court fails to conduct a constitutionally adequate review of automatic appeal and habeascorpuscases, andinstitutionally does not conduct such reviewin capital cases, in violation of appellant's rights to due process, heightened capital case due process, individualized and meaningful appellate review, and the prohibition against cruel and unusual punishments, per the Fifth, Eighth and Fourteenth Amendments. (Parker v. Dugger (1991) 498 U.S. 308, 321-322 (1991); see also Geders v. United States (1976) 425 US. 80; Herring v. New York (1975) 422 U.S. 853, Beck v. Alabama, supra, 447 U.S. 625, 637; Zant v. Stephens, supra, 462 U.S. 862, 879; Woodson v. North Carolina, supra, 428 U.S. 280, 304; Johnson v. Mississippi, supra, 486 USS. 578, 584.) The California death penalty schemefails to afford capital defendants with the same kind ofdisparate sentence review as is afforded felons under the determinate sentence law, in violation of Fifth, Sixth, Eighth and Fourteenth Amendmentrights to due process, to equalprotection,to reliable determinationsofthe appropriatenessofthe death penalty and ofthe fact that aggravation outweighed mitigation, and freedom from cruel and unusual punishment. -312- This Court hasrepeatedly rejected these arguments. (See, e.g., People v. Collins, 2010 WL 2104766 at *60; People v. Mills, 48 Cal.4th at 214 ; People v. Martinez, 47 Cal.4th at 968 ; People v. Ervine, 47 Cal.4th at 811.) The Court’s decisions should be reconsidered because they are inconsistent with the aforementioned provisions of the federal Constitution. Appellant also incorporates the allegations contained in the remainder of this brief as though fully set forth herein in each of these sub-claims. The constitutional violations set forth in each of these sub-claims warrant the granting of this petition without any determination of whether these violations substantially affected or influenced the jury's verdict. (Brecht v. Abrahamson (1993) 507 U.S. 619, 638 n.9.) Furthermore, these constitutional violations so infected the integrity of the proceedings that the error cannot be deemed harmless. In any event, these violations of appellant's rights had a substantial and injurious effect or influence on the penalty judgment, rendering it fundamentally unfair and resulting in a miscarriage of justice. -313- XXII. SECTION 190.3 AND THE RELATED PENALTY PHASE INSTRUCTIONS, AS USED AT APPELLANT’S TRIAL, WERE UNCONSTITUTIONAL.*® Appellant’s right to due process of law, equal protection of the laws, and a reliable sentence,trial by jury, and by an impartial sentencer,effective assistance of counsel, compulsory process,right of confrontation and cross- examination, proof of criminal offenses beyond a reasonable doubt and freedom from self-incrimination, was violated by the Penal Code section 190.3 instructions usedathis trial. Appellant was deprived ofhis fundamentalrights to due process (U.S. Const., 14th Amend.),a fairtrial byjury (U.S. Const., 6th & 14th Amends.), and a reliable penalty determination (U.S. Const., 6th, 8th & 14th Amends.) and theseerrors require reversal of his sentence. (See, e.g., Mills v. Maryland, supra, 486 U.S. 367, 383-384.) A. Introduction: United States Supreme Court cases preclude vagueness in capital sentencing statutes and aggravating factors. The United States Supreme Court has heldthat the first problem with 58 To the extent that this Court has rejected any of these constitutional challenges to the 1978 law,as well as the other systemic issuesraised, appellant respectfully renews each argument, makes other related arguments here, and asks that this court reconsider its former rulings, because they are incorrect interpretations under both the United States Constitution (per the Fifth, Sixth, Eighth and Fourteenth Amendments)andthe California Constitution (perart. 1, §§ 7, 15, 17 and 24). ~314- using a vague aggravatingfactor in a penalty phase weighing process, or with employing a vague capital sentencing system,is that such vagueness: ... createstherisk that the jury will treat the defendant as more deserving of the death penalty than he might otherwise be by relying uponthe existenceofan illusory circumstance.. . [and] creates the possibility not only ofrandomnessbutalso ofbiasin favor of the death penalty ... (Stringer v. Black (1992) 503 U.S. 222.) In order to minimizethis risk of arbitrary and capricious application of the death penalty, the Supreme Court has long held that a state’s aggravating factors must “. . . channel the sentencer’s discretion .. .” by “.. . clear and objective standards . . .” that provide “. . . specific and detailed guidance... .” so as to“... makerationally reviewable the process for imposing a sentence of death.” (Lewis v. Jeffers (1990) 497 U.S. 764, 774, quoting Godfrey v. Georgia, supra, 446 U.S. 420, 428.) A capital sentencing scheme maynotallot the sentencer complete discretion in deciding whether a defendant should be sentenced to death based merely on the facts of a particular case. (Furman v. Georgia, supra, 408 U.S. at 239-240, 255-257, 309-310, 314.) The jury must be “. . . given guidance about the crime .. . that the State, representing organized society, deems particularly relevant to the sentencing decision.” (Gregg v. Georgia, supra, 428 U.S. at 196, emphasis supplied (plur. opn., Stewart, Powell and Stevens, JJ.).) Furman and Gregg require that “. . . the State must establish rational -315- criteria that narrow the decision maker”s judgment as to whether the circumstances of a particular defendant’s case . . .” justify the sentence. (McCleskey v. Kemp (1987) 481 U.S. 279, 305, emphasis supplied.) ... [W]here discretion is afforded a sentencing body on a matter so grave as the determination ofwhether a humanlife should be taken or spared, that discretion must be suitably directed and limited so as to minimize the risk of wholly arbitrary and capriciousaction. (Lewis v. Jeffers, supra, 497 U.S. at 774, quoting Gregg v. Georgia, supra, 428 U.S. at 189 (internal quotation marks omitted).) It followsthat a sentencing statute or jury instructions which,as here, merely instruct the sentencer to look at vague categories, without attempting any further limitation or guidance,are unconstitutionally vague. (See, e.g., Maynard v. Cartwright, supra, 486 U.S. at 363; Godfrey v. Georgia, supra, 446 USS. at 429-433.) The United Sates Supreme Court has applied such an analysisto penalty phase aggravating factors. In Stringer v. Black, supra, 503 U.S. 222, the United States Supreme Court held that the Eighth Amendment's prohibition against unconstitutionally vague aggravating factors is applicable not only to aggravating factors designed to narrow theclass of death eligible defendants, but also, in “weighingstates”like California, to aggravating factors that are weighedby the jury in making its penalty decision. [I]f a state uses aggravating factors in deciding who shall be -316- eligible for the death penalty or who shall receive the death penalty, it cannot use factors which as a practical matter fail to guide the sentencer’s discretion. . . . . . Although our precedents do not require the use of aggravating factors, they have not permitted a State in which aggravating factors are decisive to use factors of vague or imprecise content. A vague aggravating factor employedfor the purpose of determining whether a defendantis eligible for the death penalty fails to channel the sentencer's discretion. A vague aggravating factor used in the weighing process is in a sense worse,forit creates the risk that the jury will treat the defendant as more deserving of the death penalty than he might otherwise be by relying uponthe existence ofan illusory circumstance. (Stringerv. Black, supra, 503 U.S. at 235-236, emphasis supplied.) Underthe Eighth Amendment, “. .. a statutory aggravating factor is unconstitutionally vagueif it fails to furnish principled guidance for the choice between death and a lesser penalty.” (Richmond v. Lewis (1992) 506 U.S. 40.) The application of these principles to the California capital sentencing system was before the United States Supreme Court in Bacigalupe v. California (1992) 506 U.S. 802. The Supreme Court vacated the underlying Bacigalupo judgment’? and remanded the matter to this Court, for further °° In People v. Bacigalupo (1991) 1 Cal.4th 103, 148 (“Bacigalupo I’) this Court ruled that the Eighth Amendment's prohibition against unconstitutionally vague aggravating factors did not apply to those factors under section 190.3 which the jury wasinstructed to weigh in reachingits penalty decision. Defendantpetitioned the United States Supreme Court for certiorari, arguing that the opinion was inconsistent with the subsequent Stringer decision. (Bacigalupo v. California, Petition for Writ of Certiorari, pp. 20-22.) -317- consideration of section 190.3, in light of Stringer v. Black, supra. (Bacigalupo v. California, supra; see People v. Wader (1993) 5 Cal.4th 610, 663-664, n.12.) This Court re-affirmed its Bacigalupo I decision, in Bacigalupo II. (People v. Bacigalupo (1993) 6 Cal.4th 457 (93 D.A.R. 15433, Dec. 7, 1993, cited “Bacigalupo I?’.) Appellant respectfully submits that the Eighth Amendment's vagueness limitations and the other constitutional guarantees do apply to section 190.3 and penalty phase instructions. The trial court here failed its constitutional duties by reading instructions whichleft the jurors “unguided and untethered” in their penalty adjudication. B. Factor (a) of Penal Code Section 190.3, which directed the jury to separately weigh the “circumstances of the crime” as a factor in aggravation,violated the Eighth and Fourteenth Amendments.” As discussed supra, at the close of the penalty phase, Judge Spinetta gave appellant’s jury a numberof factors under Penal Code Section 190.3 which they were to “take into consideration, weigh and be guided by...” (24 RT 5376; 5 CT 1865.) Factor (a), the aggravating factor that allowed appellant’s jury to impose death based on the “circumstancesofthe crimes,” made the penalty-determination process here look dangerously similar to the standardless schemeinvalidated in Furman v. Georgia, supra, 408 U.S. 238. 60 Appellant acknowledgesthat this court has previously rejected similar contentions (People v. Wader, supra, 5 Cal.4th at 663-664), but respectfully requests that the issue be reconsidered. -318- Factor(a) failed to identify any aspect of the underlying offense which might aggravate punishment. This factor did nothing to limit the discretion of the jury; instead,it inherently invited each juror to personally determine why he or she was mostoffended bythe crime, and use that perception as a reason for aggravation, without any reference to any objective standard. Section 190.3, subdivision (a) is being applied in a manner that institutionalizes the arbitrary and capricious imposition of death, is vague and standardless, and violates appellant’s Fifth, Sixth, Eighth, and Fourteenth Amendmentrights to due process, to equal protection, to reliable and non- arbitrary determinationsofthe appropriateness ofthe death penalty and ofthe fact that aggravation outweighed mitigation, and freedom from cruel and unusual punishment. In addition, the jury was not required to be unanimous as to which “circumstances of the crime”-amounting-to-an-aggravating -- circumstance had beenestablished, nor wasthe jury requiredto find that such an aggravating circumstance had beenestablished beyond a reasonable doubt, thus violating Ring v. Arizona, 536 U.S. 584 andits progeny” and appellant’s Sixth Amendmentrightto a jury trial on the “aggravating circumstance[s] necessary for imposition of the death penalty.” (Ring, 536 U.S. at 609.) 61 Ring v. Arizona, supra, 536 U.S. 584, Blakely v. Washington (2004) 542 U.S. 296, United States v. Booker (2005) 543 U.S. 220, Cunningham v. California (2007) 549 U.S. 270. -319- This Court has repeatedly rejected these arguments. (See, e.g., People v. Collins, 2010 WL 2104766at *60; People v. Mills, 48 Cal.4th at 213-214; People v. Martinez, 47 Cal.4th at 967 ; People v. Ervine, 47 Cal.4th at 810 ; People v. McWhorter, 47 Cal.4th at 378; People v. Mendoza (2000) 24 Cal.4th 130, 190; People v. Schmeck, supra, 37 Cal.4th at 304-305.) The Court’s decisions should be reconsidered because they are inconsistent with the aforementioned provisions of the federal Constitution. C. Section 190.3's Factor (b) is unconstitutionally vague underthe Eighth and Fourteenth Amendments and resulted in arbitrary and capricious sentencing.” In addition to the CALJIC No. 8.84.1l's instruction on “the circumstancesofthe crimes” underfactor (a), the penalty jury wasdirected to consider as aggravation, underfactor(b): The presence or absenceofcriminal activity by the defendant, other than the crimes for which defendant has been tried in the present proceedings, which involvedthe useor attempted use of force or violence, or the express or impliedthreat to use force or violence. (24 CT 5376; 5 CT 1865.) Shortly thereafter, the court read to the jury another instruction telling the jurors that they could considerfactor (b) as either aggravating or mitigating. 62 This Court has rejected similar claims previously (People v. Fierro (1991) 1 Cal.4th 173, 230-232.) Appellant respectfully asks the issues involved be reconsidered. -320- (24 RT 5379; 5 CT 1870.) This instruction was unconstitutionally vague in the same waysas the factor (a) instruction, discussed ante, and incorporated by reference. The instruction afforded the jurors no guidanceorlimitations as to how to evaluate the crimes or incidents and was standardless, arbitrary, subjective and weighted toward death. Factor(b) allowed the jury to impose death,at least in part, on the basis of “. .. criminal activity by the defendant which involved the use or attempted use of force or violence... .” (24 RT 5376; 5 CT 1865.) The trial court did not give guidelinesor place limits on this factor, or instruct the jury on the elementsof the potentially relevant crimes, or define violence or force. The jurors were not told that they could rely on this factor (b) evidenceonly if they unanimously agreed beyond a reasonable doubt that the conduct had- occurred. In-light of the Supreme Court decision in-Ring-v. - Arizona, supra, 536 U.S. 584andits progeny,thetrial court’s failure violated appellant’s Sixth Amendmentright to a jury trial on the “aggravating circumstance[s] necessary for imposition of the death penalty.” (Ring, 536 U.S. at 609.) In the absence ofa requirement ofjury unanimity, appellant was also deprived of his Eighth Amendmentright to a reliable, non-arbitrary penalty phase determination and to freedom from cruel and unusual punishment. This Court has repeatedly rejected these arguments. (See, e.g., People -321- v. Collins, 2010 WL 2104766 at *60; People v. D’Arcy, 48 Cal.4th at 308 ; People v. Martinez, 47 Cal.4th at 967 ; People v. Lewis (2006) 39 Cal.4th 970, 1068.) The Court’s decisions should be reconsidered because they are inconsistent with the aforementioned provisions of the federal Constitution. In addition, allowing ajury that has already convicted the defendant of first degree murderto decide if the defendant has committed other criminal activity violated appellant’s Fifth, Sixth, Eighth and Fourteenth Amendment rights to an unbiased decisionmaker,to due process, to equal protection,to a reliable and non-arbitrary determinations ofthe appropriateness ofthe death penalty and ofthe fact that aggravation outweighed mitigation, and freedom from cruel and unusual punishment. This Court has repeatedly rejected these arguments. (See, e.g., People vy. Hawthorne (1992) 4 Cal.4th 43, 77.) The Court’s decisionsin this vein should be reconsidered becausethey are inconsistent with the aforementioned provisions of the federal Constitution. D. Thetrial court failed to delete inapplicable mitigating factors, in violation of the Eighth and Fourteenth Amendments. Thetrial court erredin failing to eliminate the inapplicable factors sua sponte. The instructions told the jurors to consider factors which were 6} This Court has previously rejected similar arguments regarding the sua sponte obligation to delete inapplicable mitigating factors. (People v. Miranda (1987) 44 Cal.3d 57, 104; People v. Kelly (1990) 51 Cal.3d -322- irrelevantto this case,in violation of the Eighth Amendment. Althoughthe jurors were told that “not all factors will be relevantin all cases and a factor whichis not relevant to the evidence should be disregarded” (24 RT 5378- 5379; 5 CT 1869), the Eighth Amendment requires that the jury not be distracted from determining whether the death penalty is appropriate in light of the particular defendant and crime. (Booth v. Maryland (1987) 482 US. 496, 507.) Jury instructions mustlimit the jury’s consideration to factorsthat are both relevantto the capital sentencing decision and rooted in the evidence before them. (See California v. Brown (1987) 479 US. 538, 543; McCleskey v. Kemp, supra, 481 U.S. 279, 313-314, n. 37.) Here, in failing to eliminate the inapplicable factors sua sponte, the jury was left on their own to determine which factors were relevant and which werenot. —~ Ifthejury istobase itsdecisionon allrelevant sentencingfactorsraised — by the evidence, then it must be instructed which relevant factorsare raised by the evidence andthat those are the only factors to be considered. Each juror was nonetheless left on her own to determine whether said factors were aggravating or mitigating here. These instructions improperly told the jurors 931, 968.) Appellant respectfully asks that this court reconsider these issues. 6’ Factors irrelevant to this case included: factor (e) (victim participation); factor (f) (moraljustification/extenuation); and (g) (duress). (24 RT 5377; 5 CT 1865-1866.) -323- to consider mitigating factors which were clearly inapplicable, giving rise to the equally clear message that the absence of evidence regarding a mitigating - factor equaled aggravation. These instructions violated the requirementthat rational, objective criteria guide the sentencer’s discretion and created an impermissiblerisk of arbitrary and capricious decision making. (McCleskey v. Kemp, supra, 481 U.S. at 301-303.) Furthermore, by the instruction’s encouraging abstract, irrelevant considerationsofthe inapplicablefactors in sentencing, appellant was deprived ofhis constitutional rights to an individualized sentencing determination (and meaningful appellate review ofthat sentence) based only onthe “factors about the crime and the defendant . . . [that are] particularly relevant” (Gregg v. Georgia, supra, 428 US. 153, 192)° and the Eighth and Fourteenth Amendment’s heightenedlevel of due process and requirementofheightened 65 The court’s instruction effectively and incorrectly made a threshold legal determinationthatall the factors in CALJIC No.8.84.1 (Rev. 1986) (Mod.) were relevant, violating well-established principles of state law (see People v. Hannon (1977) 19 Cal.3d 588, 597), in addition to the resulting constitutional violations, discussed ante. Additionally, the duty to edit standardized jury instructions which are written to apply to a theoretically wide range ofcasesalso rests with the court in California and is not left to the jury. (See, e.g., People v. Rincon-Pineda (1975) 14 Cal.3d 864, 883-884 [editing CALJIC No. 2.20].) Such editing is necessary to avoid jury confusion and avoid injecting irrelevant considerationsinto the deliberations, both ofwhich the court instead encouraged. Therefore, the instruction violated state law as well as federal constitutional guarantees, and reversal is mandated, even under the Watson standard. -324- reliability in capital cases. (Ford v. Wainwright, supra, 477 U.S. 399, 414; Beck v. Alabama, supra, 447 U.S. 625, 637-638 and n. 13; also see McElroy v. Guagliardo (1960) 361 U.S. 281 (Harlan,J., diss.).) The fact that the court effectively told the jurors that all factors were relevant, 7.e., to be considered, whenseveral factors were not relevant, only exacerbatedthe error. Finally, the language of the statute and instruction could lead a reasonable juror to conclude that the “whether or not” language preceding factors (d), (e), (f), (g), (h) and (Gj) (24 RT 5377; 5 CT 1865-1866) means either oftwo equally erroneouspropositions:(1) that those factors are always applicable and mustbeeither aggravating or mitigating, or (2) the factors are alwaysirrelevant, as “whether or not” is commonlyusedto as “irrespective of _.2?a given matter. Becausethis phrase precedes somefactors whichcanonly properly be considered in mitigation, interpretation (1) erroneously transformed mitigating factors into aggravating ones. (See People v. Benson (1990) 52 Cal.3d 754, 801.) Vagueness in the statute and instruction undoubtedly lead to such erroneous interpretations and impermissibly tilted the sentencing decision toward death, based onentirely irrelevant factors, in violation of the Eighth and Fourteenth Amendments. (Stringer v. Black, supra, 503 U.S. 222.) -325- E. Thetrial court did not define mentalillness as a mitigating factor or delete factor (d)'s "extreme" modifier, resulting in unconstitutional vagueness in violation of the Fifth, Sixth, Eighth and Fourteenth Amendments. The version of CALJIC 8.84.1 which the court used instead instructed the jury that only an “extreme mental or emotional disturbance,”perfactor (d), or capacity questions involving impairment due to mental disease, defect or intoxication,per factor (h) were to be taken “into account” in“... determining which penalty is to be imposed . . .”. (24 RT 5377; 5 CT 1865-1 866.) That is, these factors could be considered either aggravating or mitigating. The court concluded the reading of CALJIC No.8.84.1 by telling the jury thatit might find relevant “any other" extenuating circumstance,per factor(k). (24 RT 5377; 5 CT 1866.) This aspect of the instruction has three constitutional deficiencies. First, this Court has previously defined factor (d) as purely a mitigating factor. (People v. Davenport (1985) 41 Cal.3d 247, 288.)° The threshold problem with the standard CALJIC instruction is that, absent an explicit limitation of factor (d) to mitigation, jurors may well consider it in 66 This characterization no doubtarose dueto the “. . . belief, long held by this society, that defendants who commitcriminalacts that are attributable to . .. emotional and mental problems, maybe less culpable than defendants who have no such excuse.” (California v. Brown, supra, 479 US. at 545 (O'Connor,J., conc.).) -326- aggravation. They may also consider the lack of mitigation as aggravation. Mentalor emotionalinstability is not a factor which jurors will automatically or intuitively understand as mitigating in nature; they may well conclude that it is indicative ofdefendant's future dangerousness andtherefore ageravating.®’ This aspect, standing alone, violates the Eighth Amendment. The language of factors (d) and (h) injected unconstitutional arbitrariness into the penalty decision, using constitutionally vague terminology which impermissibly invites random choices and biases the process toward death. (Stringer v. Black, supra, 503 U.S.222.) Such terminology permits an unacceptable risk that there will be no principled distinction between those cases in which the death penalty is imposed and those in whichit is not. (Maynard v. Cartwright, supra, 486 U.S. at 361-362.) A-sentencebasedon suchvague instructions is unreviewable,inviolationof- the Eighth and Fourteenth Amendments. (Godfrey v. Georgia, supra, 446 USS. at 428.) The second problem with the standard CALJIC instruction, assuming the jury understood factor (d) to be mitigating,is its specification that only 67 For an example of suchattitudes by a judge, see Miller v. State (Fla. 1979) 373 So.2d 882, 883-885 [trial judge sentenced defendantto death based on defendant's incurable mental illness rendering defendant a future danger, ever after recognizing such disturbancesare mitigating]; as to public attitudes, see Note, (1979) 12 John Marshall J. Prac. & Proc. 351, 365. -327- “extreme” mental illness may be considered. This language has all the constitutionalinfirmities discussed above,”plus others all its own. A sentencing entity may not refuse to consider, or be precluded from considering, any relevant mitigating evidence. (Mills v. Maryland, supra, 486 U.S. 367, 374; Lockett v. Ohio (1978) 438 U.S. 586, 604 (plur. opn., Burger, C.J.).) The “extreme”adjective preceding “mental or emotional disturbance” created a barrier to the jury’s full consideration and assignmentof mitigating weight to appellant's evidence, in violation of these authorities. This Court recognized this limitation in People v. Ghent (1987) 43 Cal.3d 739, 776, but held thatthis constitutional defect was cured by the factor (k) language. (/d.; see People v. Kelly (1990) 51 Cal.3d 931, 968-969.) A reasonablejuror could have understoodtheseinstructionsto unconstitutionally limit one another, i.e., that the factor (k) language referred only to any 68 Ageravating factors that include constitutionally vague termslike “extreme” must also meet constitutional vagueness standards. “Extreme” does not provide sufficient guidance to avoid arbitrary and capricious sentencing, provides no principled basis for distinguishing between a death sentence andlife without parole, and is death-biased; sentences based on such termsare also unreviewable, all in violation of the Fifth, Sixth, Eighth and Fourteenth Amendments. (Stringer v. Black, supra, 503 U.S. 222; Maynardv. Cartwright, supra, 486 U.S.at 361-362; Godfrey v. Georgia, supra, 446 US. at 428; see, e.g., State v. David (La. 1985) 468 So.2d 1126, 1129-1130 [holding vague an aggravating factor which allowed the jury to impose death based upon a “significant” history of criminal conduct]; Arnold v. State, supra, 224 S.E.2d at 391-392 [holding vague an aggravating factor which allowed the jury to impose death based upon a “substantial” history of assaultive convictions].) -328- evidence “other” than those areas explicitly discussed earlier in the same instruction, i.e., mental or emotional disturbances. (See Francis v. Franklin (1985) 471 U.S. 307, 315-316).” This unduelimitation ofthe jury's ability to considerall relevant mitigating evidenceresulted in the imposition of death in violation of the Eighth and Fourteenth Amendments. (Lockett v. Ohio, supra, 438 U.S. at 604.)”° Thethird problem with factor (d)is that ““extreme”requires the sort of subjective, vague, arbitrary, unreviewable determination by each juror as to whatlevel of mentalillness is adequate for consideration thathas consistently This interpretation is required by rules ofinterpretation,e.g., the provisions that: specific rules take precedenceover generalrules, both as a matter of legal interpretation and common understanding (Rosev. California (1942) 19 Cal.2d 713, 723-724; People v. Breyer (1934) 139 Cal. App. 547, 550); and expressio unius est exclusio alterius, the "Te]xpression ofonething is the exclusion of another." (Black's Law Dictionary (West Rev. 4th Ed. 1968) p. 692; In Re Lance W. (1985) 37 Cal.3d 873, 888.) Here the jury wastold that they “. . . shall consider, take into account, and be guided by the following factors, if applicable... ,” followedat ‘(d)” by whether appellant was “. . . under the influence of extreme mental or emotional disturbance...” (24 RT 5377; 5 CT 1865.) The former clause definedthe latter as the only form of mentaldisturbance to be considered,i.e., “extreme,” and pre-empted any further use of evidencerelating to the categorical field of mental or emotional disturbances. 7 Alternatively, at a minimum thereis therefore a legitimate basis for finding ambiguity concerningthe factors actually considered bythe jury. (California v. Brown, supra, 479 U.S. at 546 (O'Connor,J., conc.).) -329- been found constitutionally unacceptable. (£.g., Maynard v. Cartwright, supra, 486 U.S. at 363-364 [“especially”];"' Shell v. Mississippi, supra, 498 U.S. 1, 4 [“especially”]; Moore v. Clarke (8th Cir. 1990) 904 F.2d 1226, 1232-1233 [“exceptional”].)” The jury instructions on factor (d), alone and considered togetherwith the penalty instructions as a whole, were prejudicially violative of the Fifth, Sixth, Eighth and Fourteenth Amendments. (Gregg v. Georgia, supra, 428 U.S. at 192; Godfrey v. Georgia, supra, 446 U.S.at 428- 429; Stringer v. Black, supra, 503 U.S. 222; Zant v. Stephens, supra, 462 U.S. at 865.) F. Thetrial court's failure to read necessary instructions related to the burden of proof and reasonable doubt violated the Fifth, Sixth, Eighth and Fourteenth Amendments.” The instructions contained constitutional errors in section 190.3's 7| Notably, the unconstitutionally vague “especially”is a synonym for “extremely” (Random House Thesaurus, College Edition (1984)p. 257), the adverbial form of “extreme.” (Webster's New World Dictionary, Second College Edition (Simon & Schuster 1980), at 498.) ® This constitutional flaw is also found in factor (g)’s “. . . extreme duress or. . . substantial domination . . .” as read to appellant's jury. (24 RT 5377; 5 CT 1866.) The use of such modifiers in various instructions was unconstitutional, because it could have conveyed to a reasonable juror that only the most extreme versions ofvarious potential mitigating factors which werein fact to be considered in mitigation. ™ Appellant is awarethat this Court has rejected similar contentions (e.g., People v. Allen (1986) 42 Cal.3d 1222, 1285), but respectfully requests that the issue be reconsidered. -330- factors and the related CALJIC instructions, which were unconstitutionally vague,failed to direct or limit the jury’s discretion, encouraged the jury to act in aconstitutionally arbitrary, capricious, unreviewable mannerand skewedthe sentencing process in favor of execution, in violation of the Fifth, Sixth, Eighth and Fourteenth Amendments. (Gregg v. Georgia, supra, 428 U.S.at 192; Godfrey v. Georgia, supra, 446 U.S. at 428-429; Stringer v. Black (1992) 503 U.S. 222; Zant v. Stephens, supra, 462 U.S. at 865; see State v. Wood (Utah 1982) 648 P.2d 71, 83.) The instructions at issue related to the burden of proof, which must be judged in light of the Due Process Clause: The function of a standard ofproof, as that concept is embodied in the Due Process Clauseandin the realm offact finding, is to instruct the fact finder concerning the degree of confidence our society thinks he should have in the correctness of factual ~-.. conclusionsfor-aparticular typeofadjudication... - -.--- —... (Addington v. Texas (1979) 441 U.S. 418, 423, quoting Jn Re Winship (1970) 397 U.S. 358, 370 (Harlan, J., conc.; internal quotation marks omitted)). Criminal cases merit the highest standard, the beyond a reasonable doubttest: ... the interests of the defendant are of such magnitude that historically and without any explicit constitutional requirement they have been protected by standards of proof designed to exclude as nearly as possible the likelihood of an erroneous judgment. ... [9]... In cases involving individual rights, whether criminal or civil, the standard of proof at a minimumreflects the value society places on individualliberty. (Santosky v. Kramer (1982) 455 U.S. 745, 755, quoting Addington v. Texas, -331- supra, 441 U.S, at 415, 423; quotation marks and brackets omitted.) The imposition of a death sentencerepresents the ultimate imposition on individual liberty. Therefore, the Fourteenth Amendment's general concepts of due process and equalprotection, and the Eighth and Fourteenth Amendment's heightenedlevel of due process and requirement ofheightened reliability in capital cases (Ford v. Wainwright, supra, 477 U.S. at 414; Beck v. Alabama, supra, 447 U.S. at 637-638 and n. 13) mandate the use of the beyond a reasonable doubtstandard in all decisions by capital case sentencers. G. These errors individually and cumulatively prejudiced appellant and mandate reversal. Section 190.3 (and its embodiment in CALJIC No.8.84.1), the related instructionsgiven,and the otherinstructionalfailures discussed herein violated the Fifth, Sixth, Eighth and Fourteenth Amendments, as described above. These errors are each prejudicial and mandate reversal individually and cumulatively. As to all the unconstitutionally vague provisions of section 190.3 (manifestedin large part in CALJIC No.8.84.1), reversal is automatic, because the use of a vague aggravating factor in the weighing process created randomness anda bias in favor of execution. (Stringer v. Black, supra, 503 USS. 222.) As the Supreme Court hasstated, “[t]he constitutionality of a State’s -332- death penalty system turns on review of that system in context.” (Kansasv. Marsh, supra, 548 U.S. 163, 179, fn. 6. See also Pulley v. Harris, supra, 465 U.S. 37, 51 [while comparative proportionality review is not an essential component of every constitutional capital sentencing scheme, a capital sentencing scheme maybesolacking in other checks on arbitrariness thatit would not pass constitutional muster without such review].) Viewed as a whole, California’s sentencing schemeis so broadinits definitions of whois eligible for death and so lacking in procedural safeguards that it fails to provide a meaningful or reliable basis for selecting the relatively few offenders subjected to capital punishment. XXIV. APPELLANT'S DEATH SENTENCEISDISPROPORTIONATE TO-HIS-ACCOMPLICESAND.AS.TOBOTHHIS. INDIVIDUAL CULPABILITY UNDER AN INTRA-CASE REVIEW, AND WHEN COMPARED TO OTHERS WHO HAVE COMMITTED SIMILAR OFFENSES. The Eighth Amendmentto the United States Constitution prohibits the imposition of“cruel and unusual punishment,” including sentences which are grossly disproportionate to the offense as defined or committed, or to the individual culpability of the offender. A. Facts in Support. Assuming, arguendo, that appellant was guilty of the murder of Mrs. -333- Daher, he was not the sole person responsible for her death. The fact that appellant has been sentenced to death while the prosecutor did not even seek death against the other defendants demonstrates a lack of proportionality. Death is different, and an LWOPsentence does not compare to a sentence of death. Appellant’s death sentence is grossly disproportionate to the punishment of coconspirators Lee Snyder and Maury O’Brien. The United States Supreme Court has repeatedly stated that “death is different”; that is, the death penalty is qualitatively different than any other criminal punishment. Asstated in Woodson v. North Carolina, supra, 428 U.S. 280, 305, “there is a corresponding difference in the needfor reliability in the determination that death is the appropriate punishmentin a specific case.” Imposition of the death penalty against appellant fails to satisfy the constitutional requirement that a capital sentencing procedure rationally distinguish those who deserve the ultimate sanction from those who donot. (Godfrey v. Georgia, supra, 446 U.S. 420, 427.) The necessity of particularized objective appellate review is a necessary component ofa valid death penalty statute: The provision for appellate review in the Georgia capital sentencing system serves as a check against the random or arbitrary imposition of the death penalty. In particular, the proportionality review substantially eliminates the possibility that a person will be sentenced to die by the action of an -334- aberrant jury .. . [T]he appellate review proceduresassure that no defendant convicted under such circumstances will suffer a sentence of death. (Gregg v. Georgia, supra, 428 U.S. at 206.) Reversal is required because appellee cannot demonstrate that the error was harmless beyond a reasonable doubt. (Chapmanv. California, supra, 386 U.S. 18.) Alternatively, as discussed above, appellee cannot show that there was no reasonable probability the error affected the verdict adversely to defendant. (People v. Watson, supra, 46 Cal.2d 818, 836.) The reasonable possibility test applied to state law errorin the penalty phaseof a capital trial is more exacting than the usual reasonable probability standardfor reversalas stated in People v. Watson, supra, 46 Cal.2d 818, 836. The Court in Brownstated, “we have long applied a more exacting standard of -review- when- we-assess-the -prejudicial effect-of state-law errors. at the penalty phase ofa capitaltrial.” (People v. Brown (1988) 46 Cal.3d 432, 447.) The reason for the heightened standardis the different level of responsibility and discretion held by the sentencer in the penalty phase. The Brown Court stated: A capital penalty jury ... is charged with a responsibility different in kind from ... guilt phase decisions: its role is not merelyto find facts, but also— and most important— to render an individualized, normative determination about the penalty appropriate for the particular defendant—i.e., whether he should live or die. When the ‘result’ under review is such a normative conclusion based on guided, individualized discretion, the -335- Watson standard of review is simply insufficient to ensure ‘reliability in the determination that death is the appropriate punishmentin a specific case’. (Id., at 448 (quoting Woodsen v. North Carolina (1976) 448 U.S. 280, 305). See also, People v. Ashmus (1991) 54 Cal.3d 932, 965 [equating the reasonable possibility standard of Brown with the federal harmless beyond a reasonable doubt standard].) Appellant’s death sentenceis disproportionate to the crimes committed andto the treatmentofthe otherprincipals in the crime, Lee Snyder and Maury O’Brien. Appellant’s sentenceviolates the Fifth, Sixth, Eighth and Fourteenth Amendments, and must be vacated. Reversal is mandated, as the judgment here wasentirely "swayed bythe error," Kotteakos v. UnitedStates (1946) 328 U.S. 750, 765, and the error had substantial and injurious effect or influence in determining the jury's verdict, resulting in actual prejudice. (Brechtv. Abrahamson, supra, 507 U.S.at 623, 637, quoting Kotteakos, supra, 328 USS. at 776.) The error undermined the reliability required by the Eighth and Fourteenth Amendment for the conviction of a capital offense (Beck v. Alabama, supra, 447 U.S. 625, 637-38), and deprived appellantofthereliable, individualized capital sentencing determination guaranteed by the Eighth Amendment. (Zant v. Stephen, supra, 462 U.S. 862, 879; Woodson v. North Carolina, supra, 428 U.S. 280, 304; Johnson v. Mississippi, supra, 486 U.S. -336- 578, 584-85.) XXV. THE DEATH PENALTY VIOLATES EQUAL PROTECTION PRINCIPLES UNDERBOTHTHE UNITED STATES CONSTITUTION AND INTERNATIONAL LAW. Pursuant to the Fourth, Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution, Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, December 10 1984, Art 14 and 16, 23 I.L.M. 1027 (Entry into force for the United States November 20, 1994), Inter-American Convention on Human Rights, November 22 1969, Art 4 and 7, 1144 UNTS123, 9 I.L.M. 673 (Entry into force July 18, 1978), International Covenant of Civil and Political Rights, December19 1966, Art 2(3) and 6 -7, 999 UNTS171, 6 1.L.M.368 (Entry into force for the United StatesSeptember-8,-1992), SecondOptional Protocol to the International Covenant on Civil and Political Rights, December 15 1989, UN GAORSupp.(No.49) at 207, UN Doc. A/44/49 (1989) (Entry into force July 11, 1991), Article 18, Vienna Convention on the Law ofTreaties, May 23 1969, Art 18, 1155 UNTS331; 8 ILM 679 (Entry into force January 27, 1980), Bush vy. Gore (2000) 531 U.S. 98, as well as statutory and jurisprudential authorities cited below,and all other applicable constitutional, statutory, treaty, customary international law, evolving international standards, and jurisprudential authority, the death penalty is unconstitutional and otherwise -337- unlawful. “The fundamental respect for humanity underlying the Eighth Amendment's prohibition against cruel and unusual punishmentgivesrise to a special ‘needforreliability in the determination that deathis the appropriate punishment’ in any capital case.” (Johnson v. Mississippi, supra, 486 USS. 578, 584 (citations omitted).) It is well established that when a defendant's life is at stake, a court must be “particularly sensitive to insure that every safeguard is observed.” (Gregg v. Georgia, supra, 428 U.S. 153, 187.) This heightened standard ofreliability is “a natural consequence of the knowledge that execution is the most irremediable and unfathomableofpenalties; that death is different.” (Ford v. Wainwright, supra, 477 U.S. 399, 41 1.) Death, in its finality, differs more from life imprisonmentthan a 100-year prison term differs from one of only a year or two. Because of that qualitative difference, there is a corresponding difference in the need for reliability in the determination that death is the appropriate punishmentin a specific case. (Woodson v. North Carolina, supra, 428 U.S. 280, 305.) The United States Supreme Court has repeatedly emphasizedthe principle that because of the exceptional and irrevocable nature of the death penalty, “extraordinary measures” are required by the Eighth and Fourteenth Amendments to ensure the reliability of decisions regarding both guilt and punishment in a capital trial. (Eddings v. Oklahoma (1982) 455 U.S. 104, 118 (O’Connor, J., -338- concurring); see also Beck v. Alabama, supra, 447 U.S. 625, 637-38; Lockett v. Ohio, supra, 438 U.S. 586, 604; and Gardnerv. Florida , supra, 430 U.S. 349, 357-58.) Underthe Equal Protection principle that the Supreme Court announced in Bush v. Gore, supra, 531 U.S. 98, currentCalifornia law is unconstitutional becauseit fails to set forth uniform standards as to when a prosecutor should seek the death penalty in a potentially capital case. The Supreme Court’s holding in that case is quite simple: When fundamentalrights are involved, the Equal Protection Clause ofthe Fourteenth Amendmentrequires that there be “uniform”and “specific” standards to prevent the arbitrary and disparate treatment of similarly situated people. (Bush, 531 U.S. 106.) Because the Florida Supreme Court did notset forth such standardsin its opinion ordering arecount;but instead-anneunced onlythat ballots should be counted according to a vague “intent of the voter” standard, the recount would notrespect the “equal dignity owed to each voter.” (/d. at 104.) The California death penalty system concerns a right even more fundamentalthanthe right to vote, thatis, the right to life. As was true in the Florida recount, in California the lack of statewide standards to guide prosecutors in determining which cases warrant seeking the death penalty inevitably leads to the disparate treatmentofsimilarly situated people accused ofpotentially capital offenses. While the Supreme Court stated that its holding -339- in Bush v. Gore was limited to the facts of that case, the principles it announced are sound and must be subject to respect as precedent. Those principles require that the method of deciding which defendants may face the death penalty be subjectto at least as much scrutiny as the process ofcounting votes. The need for equality and non-arbitrariness when the state seeks to deprivea citizen ofhis life outweighs any benefits of unbridled prosecutorial discretion. In 2001, the Supreme Court of Canada placed the use of the death penalty in the United States for ordinary crimes into an international context: Amnesty International reports that in 1948,the year in whichthe Universal Declaration ofHuman Rights wasadopted,only eight countries were abolitionist. In January 1998, the Secretary- General of the United Nations, in a report submitted to the Commission on Human Rights (U.N. Doc. E/CN.4/1998/82), noted that 90 countries retained the death penalty, while 61 were totally abolitionist, 14 (including Canada at the time) were classified as abolitionist for ordinary crimes and 27 were consideredto be abolitionist defacto (no executions for the past 10 years) for a total of 102 abolitionist countries. At the present time, it appears that the death penalty is now abolished (apart from exceptional offences such as treason) in 108 countries. These general statistics mask the important point that abolitionist states include all of the major democracies except some of the United States, India and Japan ... According to statistics filed by Amnesty International on this appeal, 85 percentofthe world's executions in 1999 were accounted for by only five countries: the United States, China, the Congo, Saudi Arabia andIran. (Minister ofJustice v. Burns (2001) 1 S.C.R. 283 [2001 SCC 7], 491.) The -340- California death penalty schemeviolates the provisions ofinternational treaties and the fundamental precepts of international human rights. Because internationaltreaties ratified by the United States are binding on state courts, the imposition ofthe death penalty is unlawful. To the extent that international legal normsare incorporated into the Eighth Amendment determination of evolving standardsofdecency, appellant raises this argument under the Eighth Amendmentaswell. (See Atkins v. Virginia (2002) 536 U.S.304, 316,fn. 21; Stanford v. Kentucky (1989) 492 U.S. 361, 389-390 (Brennan,J., dissenting.).) A. International Law Article VII of the International Covenant ofCivil and Political Rights (“ICCPR”)prohibits “cruel, inhuman or degrading treatmentor punishment.” ArticleVEsection-t of the ICEPRprohibits-the arbitrary deprivationoflife,. providing that“[e]very humanbeinghasthe inherentright to life. This right shall be protected by law. No oneshall be arbitrarily deprivedoflife.” The ICCPRwasratified by the United States in 1992, and applies to the states underthe Supremacy Clauseofthe federal Constitution. (U.S. CONST., art. VI, § 1, cl. 2.) Consequently, this Court is bound by the ICCPR.” The 74 The Senate attempted to place reservations on the languageof the ICCPR,includinga declaration that the covenant wasnotself-executing. (See 138 Cong. Rec. $4784, § III(1).) These qualifications do not preclude appellant’s reliance on the treaty because,interalia, (1) the treaty is self- -341- United States Court ofAppeals for the Eleventh Circuit has held that whenthe United States Senate ratified the ICCPR “‘the treaty became, coexistent with the United States Constitution and federal statutes, the supreme law of the land” and must be applied as written. (United States v. Duarte-Acero (11th Cir. 2000) 208 F.3d 1282, 1284; but see Beazley v. Johnson (Sth Cir. 2001) 242 F.3d 248, 267-268.) Appellant’s death sentence violates the ICCPR. Because of the improprieties of the capital sentencing process challengedin this appeal, the imposition of the death penalty on him constitutes “cruel, inhuman or degrading treatment or punishment”in violation of Article VII of the ICCPR. There is a growing recognition that international human rights norms in general, and the ICCPRin particular, should be applied to the United States. (See United States v. Duarte-Acero, supra, 208 F.3d at 1284; McKenzie v. Daye (9" Cir. 1995) 57 F.3d 1461, 1487 (Norris, J., dissenting).) Thus, appellant requests that the Court reconsider and, in the contextof this case, executing underthe factors set forth in Frolova v. U.S.S.R. (7th Cir. 1985) 761 F.2d 370, 373; (2) the declaration impermissibly conflicts with the object and purpose ofthe treaty, whichis to protect the individual’s rights enumerated therein (see RIESENFELD & ABBOT, The Scope ofthe U.S. Senate Control Over the Conclusion and Operation of Treaties (1991) 68 Chi.-Kent L. Rev. 571, 608); and (3) the legislative history indicates that the Senate only intended to prohibit private and independent causes of action (see 138 Cong. Rec. $4784) and did not intend to prevent defensive use of the treaty (see Quigley, Human Rights Defenses in U.S. Courts (1998) 20 Hum.Rts. Q. 555, 581-582). -342- find his death sentenceviolates international law. (See Smith v. Murray (1986) 477 U.S. 527 [holding that even issues settled under state law must be reasserted to preserve theissue for federal habeas corpus review].) B. The Eighth Amendment Asnoted above, the abolition of the death penalty, orits limitation to exceptional crimes such as treason — as opposed to its use as a regular punishment for ordinary crimes — is particularly uniform in the nations of Western Europe. (See, e.g., Stanford v. Kentucky (1989) 492 U.S. 361, 389 (Brennan, J., dissenting.); Thompson v. Oklahoma(1988), 487 U.S. 815, 830 (Stevens, J., plurality opinion)). Indeed, a// nations ofWestern Europe — plus Canada, Australia, and New Zealand — have abolished the death penalty. (Amnesty International, “The Death Penalty: List of Abolitionist and Retentionist Countries” at —or.. .)” This consistent view is especially important in considering the constitutionality ofthe death penalty under the Eighth Amendmentbecause our Founding Fathers looked to the nations of Western Europe for the “law of > Many other countries including almost all Eastern European, Central American, and South American nations also have abolished the death penalty either completely or for ordinary crimes. (See Amnesty International’s “List ofAbolitionist and Retentionist Countries,” supra, at or .) -343- nations”as models on whichthe lawsofcivilized nations were founded and for the meaning oftermsin the Constitution. ““When the United States became an independentnation, they became,to use the language of Chancellor Kent, ‘subject to that system of rules which reason, morality, and custom had established among the civilized nations of Europe as their public law.” (Miller v. United States (1870) 78 U.S. 268,315 (Field,J., dissenting), quoting 1 Kent’s Commentaries 1; Hilton v. Guyot (1895) 159 U.S. 113, 163, 227; Sabariego v. Maverick (1888) 124 U.S. 261, 291-292.) Thus, for example, Congress’s powerto prosecute waris, as a matter ofconstitutionallaw,limited by the law ofnations; whatcivilized Europe forbade, such as using poison weapons or selling prisoners of war into slavery, was constitutionally forbidden here. (Miller v. United States, supra, 78 U.S. at 315-316, fn. 57 (Field, J., dissenting).) “Cruel and unusual punishment” as defined in the Constitution is not limited to whatever violated the standards of decency that existed within the civilized nations of Europe in the 18th century. The Eighth Amendment “draw[s] its meaning from the evolving standards of decency that mark the progress of a maturing society.” (Trop v. Dulles (1958) 356 U.S. 86, 100.) Andifthe standards ofdecency as perceived bythe civilized nations ofEurope to which our Framers looked as models have evolved, the Eighth Amendment requires that we evolve with them. The Eighth Amendmentthusprohibits the -344- use of forms of punishment not recognized by several of our states and the civilized nations ofEurope, or used by only a handful of countries throughout the world — including totalitarian regimes whose own “standardsofdecency” are supposedto be antithetical to our own. (See Atkins v. Virginia, supra, 536 U.S. at 316, fn. 21 [basing determination that executing mentally retarded persons violated Eighth Amendmentin part on disapproval in “the world community”; Thompson v. Oklahoma, supra, 487 U.S. 815, 830, fn. 31 [“We have previously recognized the relevance of the views of the international] community in determining whether a punishmentis cruel and unusual”’].) Assuming arguendo that capital punishment itself is not contrary to international norms of human decency, its use as regular punishment for substantial numbers of crimes — as opposed to extraordinary punishmentfor extraordinary crimes— is contrary to these norms.-Nations intheWestern world no longer acceptthe death penalty, and the Eighth Amendmentdoesnot permit jurisdictions in this nation to lag so far behind. (See Hilton v. Guyot, supra, 159 U.S. 113; see also Jecker, Torre & Co. v. Montgomery (1855) 59 U.S. 110, 112 [municipal jurisdictions of every country are subject to law of nations principle that citizens of warring nations are enemies].) Thus, -345- California’s use of death as a regular punishment,as in this case, violates the Eighth and Fourteenth Amendments, and Appellant’s death sentence should beset aside. XXVI APPELLANT’S DEATH SENTENCEIS ARBITRARY UNDER INTERNATIONAL LAW Therightto life is the most fundamental ofthe human rights contained in the InternationalBill ofRights. (See, e.g., UniversalDeclaration on Human Rights, GA Res. 217A (III), U.N. GAOR,3dSess. art. 3, U.N. Doc. A/810 (1948)(“Everyonehas the right to life, liberty, and security of the person”); International Covenant on Civil andPolitical Rights, Dec. 19, 1966,art. 6, 999 U.N.T.S. 171, 174-75 (entered intoforce Mar. 23, 1976)(“Every human being has the inherentrightto life”).) A number of humanrights instruments also provide that a state may not take a person’s life “arbitrarily.” (See, e.g., ICCPR,art. 6; American Convention on Human Rights, art. 4, 1144 U.N.T.S. 123; African Charter on Human and Peoples’ Rights, OAU Doc. CAB/LEG/67/3 rev. 5, 4 EHRR 417, 21 I.L.M. 58, art. 4.) In evaluating “arbitrary arrest and detention”(barred by Art. 9(1) ofthe ICCPR), the Human Rights Committee, relying on drafting history, concluded that “arbitrariness” is not to be equated with “against the law,” but must be interpreted more broadly to include elements of inappropriateness, injustice and lack of -346- predictability. TheInter-American Court on HumanRights has addressed the meaning of “arbitrary” executions in an advisory opinion regarding the interpretation of the Vienna Convention on Consular Relations. (OC-16/99, Inter-Am.Ct. H.R. (October 1, 1999).) That Court observed that states may impose the death penalty only if they rigorously adhere to the due processrights set forth in the ICCPR. The court concluded that the execution of a foreign national after his consular notification rights have been violated would constitute an “arbitrary deprivation oflife”in violation ofinternational law. (/d. at 76, para. 137.) By analogy, the execution of an individualis prohibited as “arbitrary” if a state violates any ofthe principles contained in the ICCPR. As discussed infra, supra, appellant’s conviction and sentence violate numerous provisions oftheICEPR:- - Various delegates involvedin the drafting of the ICCPR proposed the following definitions of the term “arbitrary” (1) fixed or done capriciously or at pleasure; (2) without adequate determiningprinciple; (3) depending on the will alone; (4) tyrannical; (5) despotic; (6) without cause upon law; and (7) not governedby any fixed rule or standard. Schabasat 76. In Van Alphenv. T:he Netherlands, the Human Rights Committee held that “arbitrariness” encompassesnotionsofinappropriateness,injustice, and lack ofpredictability. ((No. 305/1988), U.N. Doc. A/45/40, Vol. II, p. 108, §§5.8. See also Daniel -347- Nsereko, Arbitrary Deprivation ofLife: Controls on Permissible Deprivations, in The Right to Life in International Law 248 (Bertrand Ramcharan, ed., 1985)(deprivation oflife is arbitrary if it is done in conflict with international humanrights standardsor international humanitarian law).) Appellant’s death sentenceis arbitrary under any of these criteria. The California statutory system fails to truly narrow the scope of death eligible offenses. The result is that virtually any first-degree murdersatisfies one or more aggravating circumstances. Considering the small percentage of first degree murders which result in death sentences, there is little correlation between theseverity ofthe offenses and the sentence imposed. Consequently, there is no predictability as to when a sentenceofdeath will be rendered. The lack of any proportionality review exacerbates these infirmities. The result is that under whatever standard applied, appellant’s death sentenceis arbitrary. Reversalis required because appellee cannot demonstrate that the error was harmless beyond a reasonable doubt. (Chapmanv. California, supra, 386 U.S. 18). Alternatively, as discussed above, appellee cannot show that there was no reasonable probability the error affected the verdict adversely to defendant. (People v. Watson, supra, 46 Cal.2d 818, 836.) Thereasonable possibility test applied to state law errorin the penalty phaseof a capitaltrial is more exacting than the usual reasonable probability standard forreversal as stated in People v. Watson, supra, 46 Cal.2d 818, 836. -348- The Court in Brownstated, “we have long applied a more exacting standard of review when weassess the prejudicial effect of state-law errors at the penalty phase ofa capitaltrial.” (People v. Brown (1988) 46 Cal.3d 432, 447.) The reasonfor the heightened standardis the different level of responsibility and discretion held by the sentencerin the penalty phase. The Brown Court stated: A capital penalty jury ... is charged with a responsibility different in kind from ... guilt phase decisions: its role is not merely to find facts, but also— and most important- to render an individualized, normative determination about the penalty appropriate for the particular defendant—i.e., whether he should live or die. Whenthe ‘result’ under review is such a normative conclusion based on guided, individualized discretion, the Watson standard of review is simply insufficient to ensure ‘reliability in the determination that death is the appropriate punishmentin a specific case’. (Id., at 448 (quoting Woodsenv. North Carolina, supra, 448 U.S.at 305). See also, People v. Ashmus, supra, 54 Cal.3d at 965 [equating the reasonable possibility standard of Brown with the federal harmless beyond a reasonable doubt standard].) The error undermined the reliability required by the Eighth and Fourteenth Amendment for the conviction of a capital offense (Beck v. Alabama (1980) 447 U.S. 625, 637-38), and deprived appellantofthe reliable, individualized capital sentencing determination guaranteed by the Eighth Amendment. (Zant v. Stephens, supra, 462 U.S. 862, 879; Woodson v. North -349- Carolina (1976) 428 U.S. 280, 304; Johnson v. Mississippi, supra, 486 U.S. 578, 584-85.) XXVII. APPELLANT’S RIGHT TO BE TRIED BEFORE AN IMPARTIAL TRIBUNAL WAS VIOLATED BY DEATH QUALIFICATION PROCEDURES Article 14 of the ICCPR guarantees the right to a “fair and public hearing by a competent, independent, and impartial tribunal,” and the right to be presumedinnocent. ICCPR,art. 14(1); (2). In its Implementing Comments, the drafters stressed that Article 14 must be read as broadly as neededto root out the threatto fairnessthatarisesin a particular proceeding. ICCPR, General Comment on Implementation, Para. 5. And finally, Article 26 specifically guaranteesthat “[a]ll persons are equal before the law and areentitled without any discrimination to the equal protection of the law.” ICCPR, Art. 26. The Human Rights Committee has held that “[t]he right to be tried by an independent and impartial tribunal is an absolute right that may suffer no exception.” (Gonzales del Rio v. Peru, No. 263/1987, H.R. Comm.para. 5.2 (1992).) Moreover, in Richards v. Jamaica, No. 535/1993, H.R. Comm.para. 7.2 (1997), the Committee found a violation of Article 14 in a capital case involving extensive pretrial publicity, and ruled that Jamaica could not lawfully carry out the execution. (/d.) -350- The Committee’s decision in Richards is consistent with the notionthat nations must rigorously observe a defendant’s fairtrial rights in capital cases, and may only impose the death penalty where these standards are observed. (William Schabas, The Abolition of the Death Penalty in International Law 108-09 (1997).) Appellant’s jury was also selected after being “death qualified” pursuant to Hovey and Witherspoon. This selection process unfairly skewed the jury pool to conviction-prone and death-prone jurors, and resulted in a biased tribunal. As noted above, appellant’s jury was subjected to inflammatory and irrelevantpre-trial publicity and evidence. This evidence servedto arouse the passionsofthe jury and made them decide the case based on passion and not a careful weighingofthe evidence...Themisconductofthe prosecutor further exacerbated this error. Thejury which rendered a verdict and sentence wasnot independent and impartial. Reversal is mandated. Reversalis required because appellee cannot demonstratethat the error was harmless beyonda reasonable doubt. (Chapmanv. California, supra, 386 U.S. 18). Alternatively, as discussed above, appellee cannot show that there was no reasonable probability the error affected the verdict adversely to defendant. (People v. Watson, supra, 46 Cal.2d 818, 836.) The reasonable possibility test applied to state law error in the penalty -351- phase ofa capital trial is more exacting than the usual reasonable probability standard for reversal as stated in People v. Watson, supra, 46 Cal.2d 818, 836. The Court in Brownstated, “we have long applied a more exacting standard of review when weassess the prejudicial effect of state-law errors at the penalty phaseofa capitaltrial.” (People v. Brown, supra, 46 Cal.3d 432, 447.) The reason for the heightened standardis the different level of responsibility and discretion held by the sentencer in the penalty phase. The Brown Court stated: A capital penalty jury ... is charged with a responsibility different in kind from ... guilt phase decisions: its role is not merely to find facts, but also— and most important— to render an individualized, normative determination about the penalty appropriate for the particular defendant-—i.e., whether he should live or die. Whenthe ‘result’ under review is such a normative conclusion based on guided, individualized discretion, the Watson standard of review is simply insufficient to ensure ‘reliability in the determination that death is the appropriate punishmentin a specific case’. (Id., at 448 (quoting Woodsen v. North Carolina, supra, 448 U.S. at 305). See also, People v. Ashmus, supra, 54 Cal.3d at 965 [equating the reasonable possibility standard of Brown with the federal harmless beyond a reasonable doubt standard].) The error undermined the reliability required by the Eighth and Fourteenth Amendment for the conviction of a capital offense (Beck v. Alabama (1980) 447 U.S. 625, 637-38), and deprived appellantofthereliable, -352- individualized capital sentencing determination guaranteed by the Eighth Amendment. (Zant v. Stephens (1983) 462 U.S. 862, 879; Woodson v. North Carolina (1976) 428 U.S. 280, 304; Johnson v. Mississippi (1988) 486 U.S. 578, 584-85.) XXVIII. APPELLANT HAS A RIGHT TO LITIGATE VIOLATIONS OF HIS RIGHTS BEFORE INTERNATIONAL TRIBUNALS The United Nations has established committees to monitor the enforcement of the ICCPR and the Torture Convention, but the United States does not accept their jurisdiction to hear individual complaints of treaty violations. As a result, individuals in the United States may not petition these committees to hear their individual cases. The United States failure to obey its treaty commitments violated the Constitution, which makestreaties the “SupremeLaw. oftheLand.”Customary international law also dictates that the United States acceptjurisdiction from the body put in place to monitor and enforce the ICCPR. There are two bodies that address human rights violations in the Americas: the Inter-American Commission of Human Rights, and the Inter- American Court on Human Rights. Individuals may file complaints with the Commission alleging violations of human rights set forth in the American Declaration ofthe Rights and Duties ofMan and/or the American Convention on Human Rights. Individuals may also petition the Commission for -353- “precautionary measures,” or injunctive relief. In death penalty cases with imminent execution dates, appellants may request that the Commission issue precautionary measuresthat call for a stay of execution. The Commission follows diplomatic protocol, and is not a court. When requesting a stay of execution, the Commission will send a letter to the U.S. Secretary of State describing the basis for its request. The State Department mustthen relay the request to the appropriate state authorities. Appellant has notyet filed any such complaints, out of respect for the jurisdiction of this Court. The Inter- American Commission also has the power to conduct on-site investigations and hearings. The United States has not accepted the jurisdiction of the Inter- American Court on Human Rights to resolve “contentious cases,” or cases in which an individual or country seeks redress for wrongdoing by the United States. As discussed above,this refusal violates both treaty law and customary international law. The Inter-American Court has jurisdiction to issue advisory opinions “regarding the interpretation of the [American] Convention or othertreaties concerningthe protection ofhumanrights in the AmericanStates.” (American Convention on Human Rights, Nov. 22, 1969, OAS/Ser.L.V/11.92, doc. 31 rev. 3 (May 3, 1996).) On occasion, the United States will appear before the Court in such cases, thereby implicitly accepting the jurisdiction of the Court -354- to issue “advisory opinions.” One such case wasthe opinion issued October 1, 1999, regarding the Vienna Convention on Consular Relations. “The mere fact that the Court has made a pronouncementin an advisory opinion rather than in a contentious case does not diminish the legitimacy or authoritative character of the legal principle enunciated by it.” (Thomas Buergental, International Human Rights in a Nutshell 220 (2d ed. 1995).) The United States should notbe free to acceptjurisdiction only whenit servesits interests. International humanrights have been a concern for the countries ofthe world for years. The United States likes to consider itself a leader in the humanrights movement, andis, in fact, one of the mostactive participants in protecting human dignity and humanrights. The /nternational Covenant on nations, including the U.S., haveratified. This treaty bestows vital human rights to the citizens of theparticipatingcountries. -- --—- ------- In orderto satisfy its obligations underits treaty obligations as well as customary international law, the United States must allow appellant the opportunity to litigate his claims before the international tribunals charged with monitoring and enforcing his rights. Appellant has thus far not sought such relief, out of respect for the jurisdiction of this Court. Therefore, appellant requests that in the event that the Court denies all of his claims, the stay of execution remain in effect for a sufficient time to allow appellant to seek relief from the international tribunals discussed above. Alternatively, -355- appellant asks for a statementfrom the Court thatit will not do so,to be issued forthwith, so that he can seek relief in those tribunals concurrently. The error undermined the reliability required by the Eighth and Fourteenth Amendment for the conviction of a capital offense (Beck v. Alabama, supra, 447 U.S. 625, 637-38), and deprived appellantofthe reliable, individualized capital sentencing determination guaranteed by the Eighth Amendment. (Zant v. Stephens, supra, 462 U.S. 862, 879; Woodson v. North Carolina , supra, 428 U.S. 280, 304; Johnsonv. Mississippi, supra, 486 US. 578, 584-85.) XXIX. THE VIOLATIONS OF STATE AND FEDERAL LAW ARTICULATED ABOVE LIKEWISE CONSTITUTEVIOLATIONS OF INTERNATIONAL LAW, AND REQUIRE THAT APPELLANT'S CONVICTIONS AND PENALTYBESET ASIDE. Appellant was deniedhisrightto a fairtrial by an independenttribunal, and his right to the minimum guarantees for the defense under customary international law as informed by the Universal Declaration ofHuman Right, the International Covenant on Civil and Political Rights (ICCPR), and the American Declaration of the Rights and Duties of Man (American Declaration). Additionally, appellant suffered racial discrimination during his trial and penalty phase which also constitutes violations of customary international law as evidencedby the equal protection provisions ofthe above- -356- mentioned instruments andofthe International Convention AgainstAll Forms ofRacial Discrimination. While appellant’s rights understate and federal constitutions have been violated, these violationsare being tried underinternational law as well, as the first step in exhausting administrative remedies in order to bring appellant’s claim in front of the Inter-American Commission on Human Rights. Should all appeals within the United States justice system fail, appellant intendsto bring his claim to the Inter-American Commission on the basis that the violations appellant has suffered are violations of the American Declaration of the Rights and Duties of Man. A. Background. The twoprincipal sourcesofinternational humanrights law aretreaties and- customaryinternationallaw..-The United-States-Constitution accords - treaties equal rank with federal statutes.” Customary international law is equated with federal commonlaw.” International law must be considered and 7 Article VI, § 1, clause 2 of the United States Constitution provides, "This Constitution, and the Lawsof the United States whichshall be made in Pursuancethereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding." 7 Restatement Third ofthe Foreign Relations Law ofthe United States (1987), p. 145, 1058. See also Eyde v. Robertson (1884) 112 U.S. 580. -357- administered in United States courts wheneverquestions ofright depending on it are presented for determination. (The Paquete Habana (1900) 175 U.S. 677, 700.) To the extent possible, courts must construe American law so asto avoid violating principles of international law. (Murray v. The Schooner Charming Betsy (1804) 6 U.S. (2 Cranch) 64, 102, 118, 2 L.Ed. 208.) When a court interprets a state or federal statute, the statute “ought never to be construed to violate the law ofnations,if any possible construction remains _..” (Weinberger v. Rossi (1982) 456 U.S. 25, 33.) The United States Constitution also authorizes Congress to “define and punish . . . offenses against the law of nations,” thus recognizing the existence and force of international law. (U.S. Const. Article I, § 8.) Courts within the United States have respondedto this mandate by lookingto international legal obligations, both customary international law and conventionaltreaties, in interpreting domestic law. (Trans WorldAirlines, Inc. v. Franklin Mint Corp. (1984) 466 U.S. 243, 252.)”8 % See also Oyamav. California (1948) 332 U.S. 633, 68 S.Ct. 269, which involved a California Alien Land Law that prevented an alien ineligible for citizenship from obtaining land andcreated a presumption of intent to avoid escheat when suchanalien pays for land and thentransfersit to a U.S. citizen. The court held that the law violated the equal protection clause of the United States Constitution. Justice Murphy, in a concurring opinion stating that the UN Charter was a federal law that outlawed racial discrimination, noted "Moreover, this nation has recently pledgeditself, through the United Nations Charter, to promote respect for, and observance of, humanrights and fundamental freedoms for all without distinction as to -358- International humanrights law has its historical underpinnings in the doctrine of humanitarian intervention, which was an exception to the general rule that international law governed regulations between nations and did not govern rights of individuals within those nations.” The humanitarian intervention doctrine recognized intervention by states into a nation committing brutal maltreatment of its nationals, and as such wasthe first expression of a limit on the freedomsof action states enjoyed with respect to their own nationals.*° This expression wasfurthered in 1920 by the Covenantofthe League ofNations. The Covenantcontained a provision relating to "fair and human conditions of labor for men, women andchildren." The League of Nations race, sex, language and religion. [The AlienLandLaw's]inconsistency with the Charter, which has been duly ratified and adopted by the United States, is but one more reason whythe statute must be condemned."(/d. at 673; see also Namba v. McCourt (1949) 185 Or. 579, 204 P.2d 569, invalidating an Oregon Alien Land Law, "The American people have an increasing consciousness that, since we are a heterogencouspeople, we must not discriminate against any one on accountofhis race, color or creed _.. Whenour nation signed the Charter of the United Nations we thereby became boundto the following principles (Article 55, subd. c, and see Article 56): 'Universal respect for, and observance of humanrights and fundamental freedomsfor all without distinction as to race, sex, language, or religion.' (59 Stat. 1031, 1046.)" Ud. at 604.) ” See generally, Sohn and Buergenthal, /nternational Protection ofHuman Rights (1973) p. 137. 80 Buergenthal, International Human Rights (1988) p.3. -359- wasalso instrumentalin developing an international system for the protection of minorities.*’ Additionally, early in the development of international law, countries recognized the obligation to treat foreign nationals in a mannerthat conformed with minimumstandardsofjustice. As the law ofresponsibility for injury to aliens began to refer to violations of "fundamental humanrights,” what had been seen as the rights of a nation eventually began to reflect the individual humanrights of nationals as well.” It soon became an established principle of international law that a country, by committing a certain subject-matter to a treaty, internationalized that subject-matter, even if the subject-matter dealt with individualrights of nationals, such that each party could no longerassert that such subject-matter fell exclusively within domestic jurisdictions.” B. Treaty Development. The monstrous violations of human rights during World War II furthered the internationalization of human rights protections. The first modern international humanrights provisions are seen in the United Nations 81 Id, pp. 7-9. ® Restatement Thirdofthe Foreign Relations Law ofthe United States, (1987) Note to Part VII, vol. 2 at 1058. 83 Advisory Opinion on Nationality Decrees Issued in Tunis and Morocco (1923) P.C.L.J., Ser. B, No. 4. -360- Charter, which entered into force on October 24, 1945. The UN Charter proclaimed that member states of the United Nations were obligated to promote "respect for, and observance of, human rights and fundamental freedomsforall withoutdistinction asto race, sex, languageorreligion."™ By adhering to this multilateral treaty, state parties recognize that humanrights are a subject of international concern. In 1948, the UN drafted and adopted both the Universal Declaration of Human Rights® and the Convention on the Prevention and Punishmentofthe Crime ofGenocide.®° The Universal Declaration is part of the International 84 Article 1(3) of the UN Charter, June 26, 1945, 59 Stat. 1031, T.S. 993, entered into force October 24, 1945. In his closing speech to the San FranciscoUnitedNations conference, President Truman emphasizedthat: "The Charter is dedicated to the achievementand observance of= fundamental freedoms. Unless wecan attain those objectives for all men and women everywhere --without regard to race, languageor religion -- we cannot have permanent peace andsecurity in the world." (Robertson, Human Rights in Europe, (1985) 22, n.22 (quoting President Truman).) 85 Universal Declaration ofHuman Rights, adopted December10, 1948, UN Gen.Ass.Res. 217A(III). It is the first comprehensive human rights resolution to be proclaimed by a universal international organization (hereinafter Universal Declaration). 86 Convention on the Prevention andPunishmentofthe Crime ofGenocide, adopted December9, 1948, 78 U.N.T.S. 277, entered into force January 12, 1951 (hereinafter Genocide Convention). Over 90 countries haveratified the Genocide Convention, which declares that genocide, whether committed in time of peace or time of war, is a crime under international law. (See generally, Buergenthal, International Human Rights, supra at 48.) -361- Bill ofHuman Rights,*’ whichalso includesthe International Covenant on Civil and Political Rights,®® the Optional Protocol to the ICCPR,” the International Covenant on Economic, Social and Cultural Rights,” and the humanrights provisions of the UN Charter. These instruments enumerate specific humanrights and duties ofstate parties andillustrate the multilateral commitment to enforcing human rights through international obligations. Additionally, the United Nations has sought to enforce the obligations of memberstates through the Commission on HumanRights, an organ of the United Nations consisting of forty-three memberstates, which reviews allegations of humanrights violations. The Organization of American States, which consists of thirty-two memberstates, was established to promote and protect humanrights. The OASCharter, a multilateral treaty which serves as the Constitution of the 87 See generally Newman, Introduction: The United States Bill ofRights, International Bill ofRights, and Other “Bills,” (1991) 40 Emory L.J. 731, 88 International Covenanton Civil andPolitical Rights, adopted December 16, 1966, 999 U.N.T.S. 717, entered into force March 23, 1976 (hereinafter ICCPR). 8° Optional Protocolto the International Covenant on Civil and Political Rights, adopted December 16, 1966, 999 U.N.T.S. 302, entered into force March23, 1976. International Covenant on Economic, Social and CulturalRights, adopted December16, 1966, 993 U.N.TS.3, entered into force January 3, 1976. -362- OAS,entered into force in 1951. It was amendedby the Protocol of Buenos Aires which cameinto effect in 1970. Article 5(j) of the OAS Charter provides, "[t]he American States proclaim the fundamental rights of the individual without distinction as to race, nationality, creed or sex."”' In 1948, the Ninth International Conference of American States proclaimed the American Declaration ofthe Rights and Duties ofMan, a resolution adopted by the OAS,and thus, its memberstates. The American Declaration is today the normative instrumentthat embodies the authoritative interpretation of the fundamentalrights of individuals in this hemisphere.” The OASalso established the Inter-American Commission on Human Rights, a formal organ of the OAS which is charged with observing and protecting human rights in its memberstates. Article 1(2)(b) of the Commission Statute defines human-rights asthe rights setforth inthe American Declaration, in relation to member States of the OAS who, like the United States, are not party to the American Convention on HumanRights. In practice, the OAS conducts country studies, on-site investigations, and has the powerto receive andact on individualpetitions which charge OAS member 1 OAS Charter, 119 U.N.T.S. 3, entered into force Dec. 13, 1951, amended 721 U.N.T.S. 324, entered into force Feb. 27, 1970. * Buergenthal, International Human Rights, supra, at 127-131. -363- states with violations of any rights set out in the American Declaration.” Because the Inter-American Commission, which relies on the American Declaration, is recognized as an OAS Charter organ charged with protecting humanrights, the necessary implication is to reinforce the normative effect of the American Declaration. ™ The United States has acknowledgedinternational humanrights law and has committed itself to pursuing international human rights protections by becoming a memberstate of the United Nations and of the Organization of American States. As an important playerin the drafting of the UN Charter's humanrights provisions, the United States was oneofthe first and strongest advocates ofa treaty-based international system for the protection of human rights.°> Though the 1950s was a period ofisolationism, the United States renewed its commitment in the late 1960s and throughout the 1970s by becoming a signatory to numerousinternational human rights agreements and % Buergenthal, International Human Rights, supra. Appellant notes that this appeal is a step in exhausting his administrative remedies in order to bring his claim in front of the Inter-American Commission onthe basis that the violations appellant has suffered are violations of the American Declaration ofthe Rights and Duties ofMan. * Buergenthal, /nternational Human Rights, supra. > Sohn and Buergenthal, International Protection ofHuman Rights (1973) at 506-9. -364- implementing humanrights-specific foreign policy legislation.” The United States has stepped up its commitment to international human rights by ratifying three comprehensive multilateral human rights treaties. The Senate gaveits advice and consentto the Jnternational Covenant on Civil and Political Rights; President Bush deposited the instruments of ratification on June 8, 1992. The International Convention Against All Forms ofRacial Discrimination,” and the International Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment” were ratified on October 20, 1994. These instruments are now binding international obligations for the United States. It is a well established principle of international law that a country, through commitmentto a treaty, becomes boundby international law.” % Buergenthal, International Human Rights, supra, p. 230. ” International Convention Against All Forms ofRacial Discrimination, 660 U.N.T.S. 195, entered intoforce Jan. 4, 1969 (hereinafter Race Convention). The United States deposited instruments ofratification on October 20, 1994. More than 100 countriesare parties to the Race Convention. °8 Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, G.A.res. 39/46, 39 UN GAORSupp.(No. 51) at 197, entered into force on June 26, 1987. The Senate gave its advice and consent on October 27, 1990, 101st Cong., 2d Sess., 136 Cong. Rev. 17, 486 (October 27, 1990) (hereinafter Torture Convention). The United States deposited instrumentsofratification on October 20, 1994. °° Buergenthal, International Human Rights, supra, p.4. -365- United States courts generally do not give retroactive ratification to a treaty; the specific provisions of a treaty are therefore enforceable from the - date of ratification onward.'However, Article 18 ofthe Vienna Convention on the LawsofTreaties provides that a signatory to a treaty mustrefrain from acts which would defeat the object and purposeofthe treaty until the signatory either makesits intention clear not to becomea party,orratifies the treaty.'*! Thoughthe United States courts have notstrictly applied Article 18, they have looked to signed, unratified treaties as evidence of customary international law 102 100 Newman and Weissbrodt, International Human Rights: Law, Policy and Process, (1990) p. 579. 1 Vienna Convention on the Law of Treaties, 1155 U.N.T.S.331, T.S. No. 58 (1980), enteredintoforce Jan. 27, 1980 (hereinafter Vienna Convention). The Vienna Convention wassigned by the United States on April 24, 1970. Thoughit has not yet been ratified by the United States, the DepartmentofState, in submitting the Convention to the Senate, stated that the convention "is already recognizedas the authoritative guide to current treaty law and practice." S. Exec.Doc. L., 92d Cong., Ist Sess. (1971) at 1. Also, the Restatement Third of the Foreign Relations Lawofthe United States cites the Vienna Convention extensively. 102 See for example Inupiat Community ofthe Arctic Slope v. United States (9th Cir. 1984) 746 F.2d 570(citing the International Covenant on Civil and Political Rights), Crow v. Gullet (8th Cir. 1983) 706 F.2d 774 (citing the International Covenanton Civil and Political Rights); Filartiga v. Pena-Irala (2nd Cir. 1980) 630 F.2d 876 (citing the International Covenant on Civil and Political Rights). See also Charme, The Interim Obligation ofArticle 18 ofthe Vienna Convention on the Law ofTreaties: Making Sense ofan Enigma (1992) 25 Geo.Wash.J.Int'l.L. & Econ. 71. Ms. Charme arguesthat Article 18 codified the existing interim (pre-ratification) obligations of parties who are -366- C. Customary International Law. Customary international law arises out of a general and consistent practice of nations acting in a particular manner out of a sense of legal obligation.'°? The UnitedStates, through signing andratifying the ICCPR,the Race Convention,and the Torture Convention,as well as being amemberstate of the OAS and thus being bound by the OAS Charter and the American Declaration, recognizes the force ofcustomary international humanrights law. The substantiveclauses ofthesetreaties articulate customary international law and thus bind our government. When the UnitedStates has signedorratified treaty, it cannot ignorethis codification ofcustomary international law and has no basis for refusing to extend the protection ofhumanrights beyondthe terms of the U.S. Constitution.’ signatories to treaties: "Express provisionsin treaties, judicial and arbitral decisions, diplomatic statements, and the conductof the International Law Commission compel, in the aggregate, the conclusion that Article 18 constitutes the codification of the interim obligation. These instances indicate as well that this norm continuesas a rule of customary international law. Thusall states, with the exception of those with a recognized persistent objection, are boundto respect the obligation of Article 18." 03 Restatement Third ofthe Foreign Relations Law ofthe United States, § 102. This practice may be deduced from treaties, national constitutions, declarations and resolutions of intergovernmental bodies, public pronouncements by headsof state, and empirical evidenceofthe extent to whichthe customary law rule is observed. '04 Newman,Introduction: The United States Bill ofRights, International Bill ofRights, and Other "Bills," (1991) 40 Emory L.J.731 at 737. -367- Customary international law is "part of our law." (Zhe Paquete Habana, supra, at 700.) According to 22 U.S.C. § 2304(a)(1), "a principal goal of the foreign policy of the United States shall be to promote the increased observance of internationally recognized human rights by all countries."! Moreover, the International Court of Justice, the principal judicial organ of the United Nations, lists international custom as oneofthe sources ofinternational law to apply when deciding disputes.'°° These sources confirm the validity of custom as a source ofinternational law. The provisions of the Universal Declaration are accepted by United States courts as customary international law. In Filartiga v. Pena-Irala, (2d Cir. 1980) 630 F.2d 876, the court held that the right to be free from torture "has becomepart of customary international law as evidenced and defined by the Universal Declaration of Human Rights ...." (/d.) at 882. The United States, as a memberstate of the OAS,hasinternational obligations under the OAS Charter and the American Declaration. The American Declaration, which has becomeincorporated by reference within the OAS Charter by the 1970 Protocol of Buenos Aires, contains a comprehensive list of recognized 5 29 U.S.C. § 2304(a)(1). 196 Statute ofthe International Court ofJustice, art. 38, 1947 L.C.J. Acts & Docs 46. Thisstatute is generally considered to be an authoritative list of the sources of international law. -368- humanrights which includesthe rightto life, liberty and security ofperson,the right to equality before the law, and the right to due process of the law.'°” Although the American Declarationis not a treaty, the United States voted its approvalof this normative instrument and as a memberofthe OAS,is bound to recognizeits authority over humanrights issues.'* The United States has acknowledged the force of international human rights law on other countries. Indeed, in 1991 and 1992 Congress passed legislation that would have ended China's Most Favored Nation trade status with the United States unless China improved its record on humanrights. Though President Bush vetoed this legislation,'” in May 1993 President Clinton tied renewal of China's MFN status to progress on specific human rights issues in compliance with the Universal Declaration.''° 107 American Declaration ofthe Rights and Duties ofMan, Resolution XXX, Ninth International Conference of American States, reprinted in the Inter-American Commission of Human Rights, HandbookofExisting Duties Pertaining to Human Rights, OEA/Ser. L/V/II.50, doc. 6 (1980). '08 Case 9647 (United States) Res. 3/87 of 27 March 1987 OEA/Ser. L/V/II.52, doc. 17, para. 48 (1987). 109 See Michael Wines, Bush, This Time in Election Year, Vetoes Trade Curbs Against China, N.Y. Times, September 29, 1992, at Al. 0 President Clinton's executive order of May 28, 1993 required the Secretary of State to recommendto the President by June 3, 1994 whether to extend China's MFNstatus for another year. The order imposed several conditions upon the extension including a showing by China of adherence to the Universal Declaration ofHuman Rights, an acceptable accounting of those imprisoned or detained for non-violent expression of political and -369- The International Covenanton Civil andPolitical Rights, to which the United States is bound, incorporates the protections of the Universal Declaration. Where othernations are criticized and sanctioned for consistent violations of internationally recognized humanrights, the United States may not say: "Your governmentis bound by certain clauses ofthe Covenant though wein the United States are not bound."""! D. Due Process Violations. Thefactual and legalissues presented herein demonstrate that appellant was denied his right to a fair and impartial trial in violation of customary international law as evidenced by Articles 6 and 14 of the Jnternational religious beliefs, humane treatmentofprisoners including accessto Chinese prisons by international humanitarian and humanrights organizations, and promoting freedom of emigration, and compliance with the US. memorandum of understanding on prison labor. See Orentlicher and Gelatt, Public Law, Private Actors: The Impact ofHuman Rights on Business Investors in China (1993) 14 Nw.J. Int'l L. & Bus. 66, 79. Though President Clinton decided on May 26, 1994 to sever humanrights conditions from China's MENstatus, it cannot be ignored that the principal practice of the United States for several years was to use MEN status to influence China's compliance with recognized international humanrights. See Kent, China andthe International Human Rights Regime: A Case Study ofMultilateral Monitoring, 1989-1994 (1995) 17 H. R. Quarterly,1. 1 Newman, United Nations Human Rights Covenants and the United States Government: Diluted Promises, Foreseeable Futures (1993) 42 DePaul L. Rev. 1241, 1242. Newmandiscusses the United States’ resistance to treatment of humanrights treaties as U.S. law. -370- Covenant on Civil and Political Rights'" as well as Articles 1 and 26 ofthe American Declaration. The United States depositedits instrumentsofratification ofthe ICCPR on June 8, 1992 with five reservations, five understandings, four declarations, and oneproviso.’ Article 19(c) of the Vienna Convention on the Law of Treaties declares that a party to a treaty may not formulate a reservation that is "incompatible with the object and purposeofthe treaty."''* The Restatement Third of the Foreign Relations Law of the United States echoes this provision.''° The ICCPRimposes an immediate obligation to "respect and ensure" the rights it proclaims and to take whatever other measures are necessary to give effect to those rights. United States courts, however, will generally 112 The substantive provisions of the Universal Declaration have been incorporated into the ICCPR,so these are incorporated by reference in the discussion above. Moreover, as was noted above, the Universal Declaration is accepted as customary international law. 113 Senate Committee on Foreign Relations, Report on the International Covenanton Civil andPolitical Rights (1992) S.Exec.Rep. No.23, 102d Cong., 2d Sess. "4 Vienna Convention, supra, 1155 U.N.T.S. 33], entered intoforce Jan. 27, 1980. 5, Restatement Third ofthe Foreign Relations Law ofthe UnitedStates, (1987) § 313 cmt. b. With respectto reservations, the Restatement lists "the requirement . . . that a reservation must be compatible with the object and purpose of the agreement." -371- enforcetreaties only if they are self-executing or have been implemented by legislation.''© The United States declaredthatthe articles ofthe ICCPRare not self-executing.!!7 The Bush Administration, in explanation of proposed reservations, understandings, and declarations to the ICCPR, stated: "For reasons of prudence, we recommend including a declaration that the substantive provisions ofthe Covenantare notself-executing. Theintentis to clarify that the Covenant will not create a private cause of action in U.S. courts. As was the case with the Torture Convention, existing U.S. law generally complies with the Covenant; hence, implementing legislation is not contemplated.""'® But under the Constitution, a treaty "stands on the same footing of supremacy as do the provisions of the Constitution and laws of the United States. It operates of itselfwithout the aid ofany legislation, state or national, andit will be applied and given authoritative effect by the courts. (Asakurav. 16 Newman and Weissbrodt, International Human Rights: Law, Policy and Process, (1990) p. 579. See also Sei Fujii v. California (1952) 38 Cal.2d 718, 242 P.2d 617, where the California Supreme Court held that Articles 55(c) and 56 of the UN Charter are not self-executing. 7 Senate Committee on Foreign Relations, Report on the International Covenant on Civil and Political Rights (1992) S.Exec.Rep. No.23, 102d Cong., 2d Sess. 18 Senate Committee on Foreign Relations, Report on the International Covenant on Civil and Political Rights (1992) S.Exec.Rep. No.23, 102d Cong., 2d Sess. at 19. -372- Seattle (1924) 265 U.S. 332, 341, 68 L.Ed. 1041, 44 S.Ct. 515.)''’ Moreover, treaties designed to protect individual rights should be construed asself- executing. (United States v. Noriega (1992) 808 F.Supp. 791.) In Noriega, the court noted, "It is inconsistent with both the language of the [GenevaIII] treaty and with our professed support of its purpose to find that the rights established therein cannot be enforced by the individual POW in a court of law. After all, the ultimate goal of GenevaIII is to ensure humane treatment of POWs-- not to create some amorphous, unenforceable code of honor among the signatory nations. 'It must not be forgotten that the Conventions have been drawnupfirst and foremostto protect individuals, and not to serve State interests .... Even if GenevaIII is not self-executing, the United States is still obligated to honorits international commitment.'" (/d. at 798.) -. ~Though reservations. bythe United Statesprovide-that the treaties may.. not be self-executing, the ICCPR is still a forceful source of customary international law and as suchis binding upon the United States. Article 14 provides, "[a]ll persons shall be equal before the courts and tribunals. In the determination of any criminal charge against him .. . ''9 Somelegal scholars argue thatthe distinction betweenself-executing and nonself-executing treaties is patently inconsistent with express languagein Article 6, § 2 of the United States Constitution that all treaties shall be the supreme law of the land. (See generally Jordan L. Paust, Self Executing Treaties (1988) 82 Am. J. Int'l L. 760.) -373- everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law." Article 6 declares that "InJo one shall be arbitrarily deprived ofhis life . . . [The death] penalty can only be carried out pursuant to a final judgment rendered by a competent court."!”° Likewise, these protections are found in the American Declaration: Article 1 protects the right to life, liberty and security of person; Article 2 guarantees equality before the law; and Article 26 protects the right of due process of law.’”' In cases where the UN Human Rights Committee has foundthata State party violated Article 14 of the ICCPR,in that a defendant had been denied a fair trial and appeal, the Committee has held that the imposition of the sentence of death also was a violation of Article 6 of the ICCPR.'” The Committee further observed, "the provision that a sentence of death may be imposed only in accordance with the law andnot contrary to the provisions of the Covenantimplies that 'the procedural guarantees therein prescribed must be observed, including the right to a fair hearing by an independenttribunal, the presumption ofinnocence, the minimum guarantees for the defence, and 10 International Covenant on Civil andPolitical Rights, supra, 999 U.N.T.S. 717. 121 American Declaration ofthe Rights and Duties ofMan, supra. 22 Report ofthe Human Rights Committee, p. 72, 49 UN GAORSupp. (No. 40) p. 72, UN Doc. A/49/40 (1994). 374- the right to review of conviction and sentenceby a higher tribunal."""” Further, Article 4(2) ofthe ICCPR makesclear that no derogation from Article 6 ("no one shall be arbitrarily deprivedofhis life") is allowed.'* An Advisory Opinion issued by the Inter-American Court on Human Rights concerning the Guatemalan death penalty reservation to the American Convention on Human Rights noted "[i]t would follow therefore that a reservation which was designedto enable the State to suspend any ofthe non- derogable fundamentalrights must be deemed to be incompatible with the object and purpose of the Convention and, consequently, not permitted by it."'° Implicit in the court's opinion linking non-derogability and incompatibility is the view that the compatibility requirement has greater importance in humanrights treaties, where reciprocity provides noprotection for the individual against a reserving state.\7°-. ——.—..-. ——. —-- m3 Td, '4 International Covenant on Civil and Political Rights, supra, 999 U.N.T.S. 717. "5 Restrictions to the Death Penalty (Arts. 4(2) and 4(4), American Convention on Human Rights), Advisory Opinion No. OC-3/83 of September8, 1983, Inter-Amer.Ct-H.R., ser. A: Judgments and Opinions, No. 3 (1983), reprinted in 23 I.L.M. 320, 341 (1984). '26 Edward F. Sherman,Jr. The U.S. Death Penalty Reservation to the International Covenant on Civil and Political Rights: Exposing the Limitations ofthe Flexible System Governing Treaty Formation (1994) 29 Tex.Int'l L.J. 69. In a separate opinion concerning two Barbadian death penalty reservations, the court further noted that the object and purpose of -375- Appellant's rights under customary international law,as codified in the above-mentioned provisions of the JICCPR and the American Declaration, were violated throughouthistrial and sentencing phase. E. Conclusion. The due processviolations that appellant suffered throughouthistrial and sentencing phase are prohibited by customary international law. The United States is bound by customary international law, as informed by such instruments as the ICCPR and the Race Convention. The purpose ofthese treaties is to bind nationsto an international commitmentto further protections of humanrights. The United States must honorits role in the international community by recognizing the humanrights standards in our own country to which we hold other countries accountable. modern humanrightstreaties is the "protection ofthe basic rights of individual humanbeings, irrespective oftheir nationality, both against the State of their nationality and all other contracting States. In concluding these humanrights treaties, the States can be deemed to submit themselves to a legal order within whichthey, for the common good, assume various obligations not in relation to other States, but towardsall individuals within their jurisdiction."Advisory Opinion No. OC-2/82 of September 24, 1982, Inter-Am.Ct.H.R., ser. A: Judgments and Opinions, No.2, para.29 (1982), reprinted in 22 I.L.M.37, 47 (1983). These opinionsare an indicator of emerging generalprinciples oftreaty law, and strengthen the argument that the United States death penalty reservation is impermissible becauseitis incompatible. -376- Reversalis required because appellee cannot demonstrate that the error was harmless beyonda reasonable doubt. (Chapmanv. California, supra, 386 U.S. 18). Alternatively, as discussed above, appellee cannot show thatthere was no reasonable probability the error affected the verdict adversely to defendant. (People v. Watson, supra, 46 Cal.2d 818, 836.) The errors undermined the reliability required by the Eighth and Fourteenth Amendment for the conviction of a capital offense (Beck v. Alabama, supra, 447 U.S. 625, 637-38), and deprived appellant ofthe reliable, individualized capital sentencing determination guaranteed by the Eighth Amendment. (Zant v. Stephens, supra, 462 U.S. 862, 879, Woodson v. North Carolina, supra, 428 U.S. 280, 304; Johnson v. Mississippi, supra,486 U.S. 578, 584-85). XXX. THE UNCONSTITUTIONAL USE OF LETHAL INJECTION RENDERS APPELLANT’S DEATH SENTENCE ILLEGAL Appellant’s sentence of deathis illegal and unconstitutional under the Eighth and Fourteenth Amendmentsto the United States Constitution, because execution by lethal injection, the method by which the State ofCalifornia plans to execute him, violates the prohibition of cruel and unusual punishment. The State of California plans to execute appellant by meansoflethal injection. In 1992, California added as an alternative means of execution -377- “Intravenous injection of a substance or substances in a lethal quantity sufficient to cause death, by standards established under the direction of the DepartmentofCorrections.” (Penal Code §3604.) As amendedin 1992, Penal Code §3604 provides that “[p]ersons sentenced to death priorto or after the operative date ofthis subdivision shall have the opportunity to elect to have the punishment imposedby lethal gas or lethal injection.” As amended, §3604 further provides that “if either manner of execution ... is held invalid, the punishmentof death shall be imposed by the alternate means... .” In 1996, the California Legislature amended Penal Code §3604 to providethat “if'a person under sentence of death does not chooseeither lethal gas or lethal injection . . ., the penalty of death shall be imposed by lethal injection.” On October 4, 1994, the United States District Court for the Northern District of California ruled in Fierro v. Gomez (N.D. Cal. 1994) 865 F.Supp. 1387 that the use of lethal gas is cruel and unusual punishment and thus violates the constitution. In 1996, the Ninth Circuit affirmed the district court’s conclusions in Fierro, concluding that “execution by lethal gas under the California protocol is unconstitutionally cruel and unusual andviolates the Eighth and Fourteenth Amendments.” (Fierro v. Gomez (9" Cir. 1996) 77 F.3d 301, 309.) The Ninth Circuit also permanently enjoined the state of California from administering lethal gas. (/bid.) Accordingly,lethal injection ~378- is the only method of execution currently authorized in California. In 1996, the Ninth Circuit concluded, in Bonin v. Calderon (9"Cir. 1996) 77 F.3d 1155, 1163, that because the use of lethal gas has been held invalid by the Ninth Circuit, a California prisoner sentenced to death has no state-created constitutionally protected liberty interest to choose his method of execution under Penal Code §3604(d). Under operation of California law, the Ninth Circuit’s invalidation of the use of lethal gas as a means of executions leaveslethal injection as the sole means ofexecution to be implemented by the state. (/d.; see Penal Code §3604(d).) Because Bonin did not argue that execution by lethal injection is unconstitutional, the Ninth Circuit concluded, with no discussion nor analysis, that the method of execution to be implemented in his case was applied constitutionally. (/d.) a-The lethalinjection method ofexecution is-authorized-to-be-used in thirty-onestates in addition to California. Between 1976 and 1996,there were 179 executionsby lethal injection.'*? Ofthe 56 people executed in the United States in 1995, only seven died by other means. Lethal injection executions have been carried out in at least the following states: Arizona, Arkansas, Delaware, Idaho, Illinois, Louisiana, Maryland, Missouri, Montana, Nevada, North Carolina, Oklahoma, Pennsylvania, South Carolina, Texas, Utah, 127 This figure includesall lethal injection executions in the United States through January 22, 1996. -379- Virginia and Wyoming. Consequently, there is a growing body of evidence, both scientific and anecdotal, concerning these methods of execution, the effects of lethal injection on the inmates whoare executed by this procedure, and the many instancesin whichthe proceduresfail, causing botched, painful, prolonged and torturous deaths for these condemned persons. Both scientific evidence and eyewitness accounts support the proposition that death by lethal injection can be an extraordinarily painful death, and that it is therefore in violation of the prohibition against cruel and unusual punishmentset forth in the Eighth Amendmentof the United States Constitution. The Eighth Amendmentis applicable to the states through the Fourteenth Amendment. (Robinson v. California (1962) 370 U.S. 660.) The drugs authorized to be used in California’s lethal injection procedure are extremely volatile and can cause complications even when administered correctly. The procedure exposes the inmate to substantial and grave risks of prolonged and extremeinfliction of pain if these drugs are not administered correctly. Medical doctors are prohibited from participating in executions on ethical grounds. The Code ofMedical Ethics wasset forth in the Hippocratic Oath in the fifth century B.C. and requires the preservation of life and the -380- cessation ofpain aboveall other values.'*® Medical doctors may nothelp the state kill an inmate.'” The American Nurses Association also forbids members from participating in executions. The first lethal injection execution in the United States took place in 1982 and wasplagued by mishapsfrom the outset. Because ofseveral botched executions, the New Jersey Department of Corrections contacted an expert in execution machinery and asked him to invent a machine to minimizethe risk of human error. Fred Leuchter’s lethal injection machine, designed to eliminate “execution glitches,” was first used on January 6, 1989 for an execution in Missouri. The dosages to be administered are not specified by statute, but rather “by standards established under the direction of the Department of Corrections.” (PenalCode§3604(a).)The three drugscommonly used in lethal injections are Sodium Pentothal, Pancuronium Bromide and Potassium 8 The Oath provides: “I will follow the method of treatment which, according to myability and judgment, I consider for the benefit of my patients, and abstain from whateveris deleterious and mischievous. I will give no deadly medicine to anyone if asked, nor suggest any such counsel.” ° During the American Medical Association’s annual meeting in July 1980, their House of Delegates adopted the following resolution: “A physician, as a memberof a profession dedicated to the preservation oflife whenthere is hope of doing so, should notbe a participantin a legally authorized execution. [However, a] physician may make a determination or certification of death as currently provided by law in any situation.” -381- Chloride. The Sodium Pentothal renders the inmate unconscious. The Pancuronium Bromide then paralyzes the chest wall muscles and diaphragm so that the subject can no longer breathe. Finally, the Potassium Chloride causes a cardiac arrhythmia whichresults in ineffective pumping of blood by the heart and, ultimately, a cardiacarrest. The procedures by which the State of California plans to inject chemicals into the body are so flawed that the inmate may not be executed humanely, so as to avoid cruel and unusual punishment. Death by lethal injection involves the selection ofchemical dosages and combinations of drugs by untrained or improperly skilled persons. Consequently, non-physicians are making medication dosing decisions and prescriptions that must otherwise be made by physicians underthe law. Since medical doctors may not participate or aid in the execution ofa human beingon ethical grounds, untrained or improperly skilled, non-medical personnel are making what would ordinarily be informed medical decisions concerning dosages and combinations of drugs to achieve the desired result. The effects of the lethal injection chemicals on the human body at various dosagesare medicalandscientific matters, and properly the subject ofmedical decision-making. Moreover, the efficacy of the drugs will vary on different individuals depending on manyfactors and variables, which would ordinarily -382- be monitored by medical personnel. Thereis a risk that the dosages selected by untrained persons may be inadequate for the purposes for which they were selected, may result in unanticipated or inappropriate effects in a particular individual for medical or other reasons, and mayinflict unnecessarily extreme pain andsuffering. Thereis a risk that the order and timing of the administration of the chemicals would greatly increase the risk ofunnecessarily severe physical pain and/or mental suffering. The desired effects of the chemical agents to be used for execution by lethal injection in California maybealtered by inappropriate selection,storage, and handling of the chemical agents. Improperlyselected, stored and/or handled chemicals may lose potency, andthus-failto achieve theintendedresults orinflictunnecessary, extreme pain and suffering in the process. Improperly selected, stored, and/or handled chemicals may be or becomecontaminated,altering the desired effects and resultingin the infliction of unnecessary, extreme pain and suffering. California provides inadequate controls to ensure that the chemical agents selected to achieve execution by lethal injection are properly selected, stored and handled. Since medical doctors cannotparticipate in the execution process, non- medical personnel will necessarily be relied upon to carry out the physical -383- procedures required to execute appellant. These non-medical technicians may lack the training, skill and experience to effectively, efficiently and properly prepare the apparatus necessary to execute appellant, prepare appellant physically for execution, ensure that he is restrained in a manner that will not impede the flow of chemicals andresult in a prolonged andpainful death, insert the intravenous catheter properly in a healthy vein so that chemicals enter the blood stream and notinfiltrate surroundingtissues, and administer the intravenous drip properly so that unconsciousnessand death follow quickly and painlessly. Moreover, inadequately skilled and trained personnel are unequipped to deal effectively with any problemsthatarise during the procedure. They may fail to recognize problems concerning the administration of the lethal injection. Once problemsare recognized,these untrained personnel may not know howto correct the problems or mistakes. Their lack of adequate skill and training may unnecessarily prolong the pain and suffering inherent in an execution that goes awry. The use of unskilled and improperly trained technicians to conduct executionby lethal injection and the lack ofadequate procedures to ensurethat such executions are humanely carried out have resulted in the unwarranted infliction of extreme pain, resulting in a cruel, unusual, and inhumane death for the inmate in numerouscasesacross the United States in recent years. -384- In 1982, Charles Brooks of Texas wasthe first person executed by lethal injection in the United States. The Warden of the Texas prison reportedly mixed all three chemicals into a single syringe. The chemicals had precipitated; thus, the Warden’s initial attempt to inject the deadly mixture into Brooksfailed. On March 13, 1985, Steven Peter Morin laid on a gurneyfor forty-five minutes while his Texas executioners repeatedly pricked his arms and legs with a needle in search of a vein suitable for the lethal injection. (Michael Graczyk, Convicted Killer in Texas Waits 45 Minutes Before Injection is Given, Gainesville Sun, March 14, 1985; Murderer of Three Women is Executed in Texas, New York Times, March 14, 1985.) Problems with the execution prompted Texasofficials to review their lethal injection procedures for-inmates with-a-histery-ofdrug abuse.-Gd.)-— — --—-----—+---- Over yearlater, on August 20, 1986, Texasofficials experienced such difficulty with the procedure that Randy Wools hadto help his executioners find a good vein for the execution. (Texas Executes Murderer, Las Vegas Sun, August 20, 1986.) Similarly, on June 24, 1987, in Texas, Elliot Johnson laid awake and fully conscious for thirty-five minutes while Texas executioners searched for a place to insert the needle. On December13, 1988, in Texas, Raymond Landry was pronounced -385- dead 40 minutes after being strappedto the execution gurney and 24 minutes after the drugs first started flowing into his arms. Two minutes into the | execution, the syringe came out of Landry’s vein, spraying the deadly chemicals across the room towards witnesses. The execution team had to reinsert the catheter into the vein. The curtain was pulled for 14 minutes so witnesses could not observe the intermission. (Michael Graczyk, Landry Executedfor ‘82 Robbery Slaying, Dallas Morning News, December13, 1988; and Michael Graczyk, Drawn-Out Execution Dismays Texas Inmates, Dallas Morning News, December 15, 1988.) On May 24, 1989, in Huntsville, Texas, Stephen McCoy had such a violent physical reaction to the drugs (heaving chest, gasping, choking, etc.) that one of the witnesses fainted, crashing into and knocking over another witness. Houston attorney Karen Zellars, who represented McCoy and witnessed the execution, thought the fainting would catalyze a chain reaction among the witnesses. The Texas Attorney General admitted the inmate “seemed to have a somewhatstronger reaction,” adding, “The drugs might have been administered in a heavier dose or morerapidly.” (Man Put to Death for Texas Murder, The New York Times, May 25, 1989; Witnesses to an Execution, Houston Chronicle, May 27, 1989.) On January 24, 1992, in Varner, Arkansas, it took the medical staff more than 50 minutes to find a suitable vein in Rickey Ray Rector’s arm. -386- Witnesses were not permitted to view this scene, but reported hearing Rector’s loud moans throughout the process. During the ordeal Rector, who suffered serious brain damage from a lobotomy,tried to help the medical personnel find a patent vein. The administrator of the State’s Department of Corrections Medical Programs said, paraphrased by a newspaper reporter, “the moans cameas a team oftwo medical people, increased to five, worked on both sides ofRector’s body to find a suitable vein.” The administratorsaid that may have contributedto his occasional outbursts. (Joe Farmer, Rector, 40, Executedfor Officer’s Slaying, Arkansas Democrat-Gazette, January 25, 1995; Sonja Clinesmith, Moans PiercedSilence During Wait, Arkansas Democrat-Gazette, January 26, 1992.) On March 10, 1992, in McAlester, Oklahoma, Robyn Lee Parks had a violentreaction tothedrugs-usedin the lethal injection.-Twominutesafterthe—. drugs were administered,the musclesin his jaw, neck and abdomen beganto react spasmodically for approximately 45 seconds. Parks continued to gasp and violently gag. Death came eleven minutes after the drugs were administered. Tulsa World reporter, Wayne Greenesaid,“The death looked scary and ugly.” (Witnesses Commenton Parks’ Execution, Durant Democrat, March 10, 1992; Dying Parks Gaspedfor Life, The Daily Oklahoman, March 11, 1992; Another U.S. Execution Amid Criticism Abroad, New York Times, April 24, 1992.) -387- On April 23, 1992, Billy Wayne White died 47 minutes after his executioners strapped him to the gumey in Huntsville, Texas. White tried to help prison officials as they struggled to find a vein suitable to inject the killing drugs. (Man Executed in ‘76 Slaying After Last Appeals Rejected, Austin (Tex) American-Statesman, April 23, 1992; Killer Executed by Lethal Injection, Gainesville Sun, April 24, 1992; Michael Graczyk, Veins Delay Execution 40 Minutes, Austin American Statesman, April 24, 1992; Kathy Fair, White Was Helpful at Execution, Houston Chronicle, April 24, 1992.) On May7, 1992, in Texas, Justin Lee Mayhad a violentreaction to the lethal drugs. According to Robert Wernsman, a reporter for the /tem in Huntsville, Texas, May “gasped, coughed andrearedagainst his heavy leather restraints, coughing once again before his body froze...” Associated Press reporter Michael Graczyk wrote, “He wentinto a coughing spasm, groaned and gasped,lifted his head from the death chamber gurney and would have arched his back,if he had not been belted down. After he stopped breathing, his eyes and mouth remained open.” (Michael Graczyk, Convicted Texas Killer Receives Lethal Injection, (Plainview, Texas) Herald, May 7, 1992; Convicted Killer May Dies, (Huntsville, Texas) Item, May 7, 1992; Convicted Killer Dies Gasping, San Antonio Light, May 8, 1992; Michael Graczyk Convicted Killer Gets Lethal Injection, (Denison, Texas) Herald, May 8, 1992.) -388- On May10, 1994,in Illinois, after the execution had begun, one of the three lethal drugs used to execute John Wayne Gacy clogged the tube, preventing the flow of the drugs. Blinds were drawn to block the scene, thereby obstructing the witnesses’ view. The clogged tube wasreplaced with a new one, the blinds were reopened, and the execution resumed. Anesthesiologists blamed the problem on the inexperienceofprisonofficials who conducted the execution. Doctorsstated that the proper procedure taught in“IV 101" would have prevented this error. (Rob Karwath and Susan Kuczka Gacy Execution Delay Blamed on Clogged T.B. Tube, Chicago Tribune,Page 1, May 11, 1994.) On May3, 1995, Emmitt Foster was executed by the State ofMissouri. Foster was not pronounced dead until 29 minutesafter the executioners began theflow oftethalchemicalsintohisarm. Sevenminutesafterthechemicals. began to flow, the blinds were closed to prohibit the witnesses’ view. Executioners finally reopened the blinds three minutes after Foster was pronounced dead. According to the coroner who pronounced death, the problem wascaused bythetightnessofthe leather straps that bound Fosterto the execution gurney. The coronerbelievedthat the tightness stopped the flow of chemicals into the veins. Several minutes after the strap was loosened, death was pronounced. The coroner entered the death chamber 20 minutes after the execution began, noticed the problem, andtold the officials to loosen -389- the strap so that the execution could proceed. The Constitution prohibits deliberate indifference to the knownrisks associated with a particular method of execution. (Cf Estelle v. Gamble (1976) 429 U.S. 97, 106.) Asillustrated in the above accounts and will be demonstrated in detail at an evidentiary hearing, following discovery, investigation, and other opportunities for full developmentofthe factualbasis for this claim, there are a number of knownrisks associated with the lethal injection method of execution, and the State of California has failed to take adequate measures to ensure against thoserisks. The Eighth Amendment safeguards nothing less than the dignity of man, and prohibits methods of execution that involve the unnecessary and wantoninfliction ofpain. Under Trop v, Dulles (1958) 356 U.S. 86, 100, the Eighth Amendmentstandsto safeguard "nothingless than the dignity ofman." To comply with constitutional requirements, the State must minimize the risk of unnecessary pain and suffering by taking all feasible measures to reduce the risk of error associated with the administration of capital punishment. (Glass v. Louisiana (1985) 471 U.S. 1080, 1086; Campbell v. Wood (9"Cir. 1994) 18 F.3d 662, 709-711 (Reinhart, J., dissenting); see also, Zantv. Stephens (1985) 462 U.S. 862, 884-85 [state must minimize risks of mistakes in administering capital punishment]; Eddings v. Oklahoma (1982) 455 U.S. 104, 118 (O'Connor,J., concurring) [same].) -390- Itis impossible to develop a method ofexecutionby lethalinjection that will work flawlessly in all persons given the variousindividual factors which have to be accessed in each case. Appellant should not be subjected to experimentation by the State in its attempt to figure out how best to kill a human being. California’s use of lethal injection to execute prisoners sentenced to death unnecessarily risks extreme pain and inhumanesuffering. Such use constitutes cruel and unusual punishment, offends contemporary standardsof human decency, and violates the Eighth Amendment of the United States Constitution. The Eighth Amendmentprohibits methods ofexecutionthatinvolve the "unnecessary and wantoninfliction of pain." (Gregg v. Georgia, supra, at 173.) Appellant’s sentence mustbe reversed. XXXI. THE CUMULATIVE EFFECT OF THE ERRORS RENDERS THE VERDICT AND SENTENCE UNCONSTITUTIONAL The Sixth Amendmentguaranteescriminal defendants the right to a fair trial. The cumulative effect of multiple constitutional errors can deprive defendants ofthis right. “Prejudice mayresult from the cumulative impact of multiple deficiencies.” (Ewing v. Williams (9" Cir. 1979) 596 F.2d 391, 395(citing Cooperv. Fitzharris (9" Cir. 1978) 586 F.2d 1325, 1333 (en banc), -391- cert. denied, 440 US 974, 99 S.Ct. 1542, 59 L.Ed.2d 793 (1979).) Capital cases in particular require a careful examination of the cumulative prejudice created by multiple errors. (Lockett v. Ohio, supra, 438 US 586.) In Johnson v. Mississippi, supra, 486 US 578,the Supreme Court stated: The fundamental respect for humanity underlying the Eighth Amendment’s prohibition against cruel and unusual punishment gives rise to a special ‘need for reliability in the determination that death is the appropriate punishment, in any capital case.’ Although we have acknowledged that there can be no perfect procedure for deciding which cases governmental authority should be usedto impose death, we have also madeit clear that such decisions cannot be predicated on a mere ‘caprice’ or on ‘factors that are constitutionally impermissible or totally irrelevant to the sentencing process.’ Eachof the errors need not be individually of a degree that demands reversal. “Multiple errors, even if harmless individually, may entitle a appellant to habeasreliefiftheir cumulative effect prejudiced the defendant.” (Ceja v. Stewart (9" Cir. 1996) 97 F.3d 1246, 1254; see also Mak v. Blodgett (9" Cir. 1992) 970 F.2d 614, 622; United States v. Tucker (9"" Cir. 1983) 716 F.2d 576, 595; Kelly v. Stone (9" Cir. 1975) 514 F.2d 18, 19.) The death judgment rendered here must be evaluated in light of the cumulative error occurring at both the guilt and penalty phases. (See People v. Hayes (1990) 52 Cal.3d 577, 644 [court weighsprejudice of guilt phase instructional error against prejudice in penalty phase].) -392- The jury was instructed at the penalty phase to consider all of the evidence which has been received during any part of the trial. However, becausethe issue resolvedat the guilt phase is fundamentally different from the question resolved at the penalty phase, the possibility exists that an error might be harmless as to the guilt determination, but still prejudicial to the penalty determination. (Smith v. Zant (11th Cir. 1988) 855 F.2d 712, 721-722 [admission of confession harmlessas to guilt but prejudicial as to sentence].) Appellant has demonstrated numerous guilt phase errors, including errors in charging, admission of evidence, and numerousinstructional errors among others. The significancetheseerrors is magnified by the incomplete appellate record. Penalty phase errors are manifestly prejudicial to the penalty phase determination. (See.Woods v. Dugger(11thCir.1991)923F.2d1454; Lesko v. Lehman (3d Cir. 1991) 925 F.2d 1527.) Appellant has shown numerous penalty phaseerrors. Evenifthis Court were to hold that no one ofthe guilt or penalty errors, by itself, was prejudicial, the cumulative effect of these errors sufficiently underminesthe confidencein the integrity ofthe penalty phase proceedings so that reversal is required. Here, each initial guilt phase error formed a foundation on which each subsequent penaltyphase error was cumulatively laid, giving rise to a structure of error housing the death judgment. -393- Reversal of the death sentence is mandated, becausethestate will fail in any effort to show that all the foregoing constitutional violations had no effect whatever on the jury. (See Caldwell v. Mississippi (1985) 472 U.S. 320, 341; Hitchcock v. Dugger (1987) 481 U.S. 393, 399; Penry v. Lynaugh (1989) 492 U.S. 302, 328.) Moreover, in this context, any violation ofstate law would also offendthe Fifth, Eighth and Fourteenth Amendmentrights to liberty, due process and heightened capital case due process, given that such state law error occurred in this capital case and wasinextricably interwound in the process which resulted in appellant being condemned. (See Hicks v. Oklahoma, supra, 447 U.S. at 346.) Therefore, the foregoing Caldwell standard must be applied to evaluate all errors against the penalty phase judgment,” and reversal of the death judgment is mandated. Theinstant appeal has detailed numerous constitutionalerrors. Even if the individual errors were not sufficient on their own, taken cumulatively they denied appellant a fair trial. The foregoing created a web ofprejudice. Each violation of defendant’s rights caused the creation of another constitutional error, until the trial was covered with a blanketofprejudice, 130 The failure to make such an application would violate the Eighth and Fourteenth Amendmentrights to due process and heightened capital case due process. (Lockett v. Ohio, supra, 438 U.S.at 604; Gardnerv. Florida, supra, 430 U.S. at 357-362; Chambersv. Mississippi (1973).410 U.S. 284, 294; Beck v. Alabama, supra, 447 U.S. at 637-638.) -394- smothering any possibility of a fair trial. The foregoing errors combined to form the strong, but unsupported by lawful evidence, impression that defendant wasanevil, sadistic killer who would be threat to society as long as he lived. As the penalty decision was a close one, any error or misconduct that prejudiced defendanthad a crucial impacton his rightto a fair and reliable sentence. Noneof these numeroustrial errors may be considered in a vacuum. The cumulative effect ofthe prejudice deprived defendantofa fairtrial on the issue of guilt and special circumstances and denied him an individualized and reliable determination of death as the proper penalty. The resulting conviction and death verdict are therefore flawed and must be overturned. Reversal is required because appellee cannot demonstratethat the error was harmless beyond a reasonabledoubt-(Chapmanv. California, supra, 386... U.S. 18.) Alternatively, as discussed above, appellee cannot show that there was no reasonable probability the error affected the verdict adversely to defendant. (People v. Watson, supra, 46 Cal.2d 818, 836.) The reasonable possibility test applied to state law error in the penalty phaseofa capitaltrial is more exacting than the usual reasonable probability standard for reversal as stated in People v. Watson, supra, 46 Cal.2d 818, 836. The Court in Brownstated, “we have long applied a more exacting standard of review when weassess the prejudicial effect of state-law errors at the -395- penalty phase ofa capitaltrial.” (People v. Brown, supra, 46 Cal.3d 432, 447.) The reason for the heightened standardis the different level of responsibility and discretion held by the sentencer in the penalty phase. The Brown Court stated: A capital penalty jury ... is charged with a responsibility different in kind from ... guilt phase decisions: its role is not merelyto find facts, but also— and most importantto render an individualized, normative determination about the penalty appropriate for the particular defendant—i.e., whether he should live or die. Whenthe ‘result’ under review is such a normative conclusion based on guided, individualized discretion, the Watson standard of review is simply insufficient to ensure ‘reliability in the determination that death is the appropriate punishmentin a specific case’. (Id., at 448 (quoting Woodsen v. North Carolina, supra, 448 U.S. at 305). See also, People v. Ashmus, supra, 54 Cal.3d at 965 [equating the reasonable possibility standard of Brown with the federal harmless beyond a reasonable doubt standard]). The errors undermined the reliability required by the Eighth and Fourteenth Amendment for the conviction of a capital offense (Beck v. Alabama (1980) 447 U.S. 625, 637-38), and deprived appellantofthereliable, individualized capital sentencing determination guaranteed by the Eighth Amendment. (Zant v. Stephens (1983) 462 U.S. 862, 879; Woodson v. North Carolina (1976) 428 U.S. 280, 304; Johnson v. Mississippi (1988) 486 U.S. 578, 584-85.) -396- CONCLUSION Forall the foregoing reasons, the judgment and sentence of death must be reversed. In the event that the judgmentis otherwise affirmed, the cause must be remanded for a new hearing on the automatic motion to modify the judgmentofdeath. DATED:September 11, 2012. Respectfully submitted, A (Ss ConeA A. RICHARD ELLIS ATTORNEY FOR APPELLANT -397- CERTIFICATE OF COUNSEL (CAL. RULES OF COURT, RULE 36(B)(2)) I am the attorney appointed by this Court to represent Appellant, Joseph Perez, Jr, in this automatic appeal. I conducted a word countofthis briefusing my office’s computer software (WordPerfect X5). On the basis of that computer-generated word count,I certify thatthis brief, excludingtables, certificates and the appendix, is 95,049 wordsin length. Dated: September 11, 2012. A.Richard Ellis Attorney for Appellant -398- DECLARATION OF SERVICE BY MAIL I, A. RICHARD ELLIS,hereby declare that I am a citizen of the United States, over the age of eighteen, an active memberofthe State Bar of California, and not a party to the within action. My business addressis 75 Magee Ave,Mill Valley, California 94941. On September 11, 2012 I served the within APPELLANT’S OPENING BRIEF on the interested parties in said action listed below, by placing a true and correct copy of the same in a sealed envelope, with 1“ class postage affixed thereto, and placing the samein the United States Mail, addressed as follows: Glenn Pruden, Esq. Supervising Deputy Attorney General Office of the Attorney General of the State of California California Departmentof Justice 455 Golden Gate Ave., Ste. 11000 San Francisco, CA 94102-7004 Office of the Clerk Superior Court of Contra Costa County 725 Court Street Martinez, CA 94553 (Attn: Margie Cousin) Scott Kauffman California Appellate Project 101 2™ Street, Ste. 600 San Francisco, CA 94105 -399- Mr.Joseph Perez T-42655 San Quentin State Prison San Quentin, CA 94974 I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct andthat this declaration was executed at Mill Valley, California, on September11, 2012. fA GeorGQ arr A. RICHARD ELLIS -400-
