PEOPLE v. DAVEGGIO & MICHAUD

Amicus Brief of California Appellate Project

Cal.December 29, 2017

Supreme Court of California Jarge FE, Navarrete, Court Administrator and Clerk Electronically RECEIVED on 12/28/2017 at 3.31.07 PM Supreme Court of California Jorge E. Navarrete. Court Admitistrator and Clerk Electronically FILED on 12/29/2017 by April Boelk, Deputy Clerk IN THE SUPREME COURT OF THE STATE OF CALIFORNIA THE PEOPLE OF THE STATE OF CALIFORNIA, ‘Plaintiff and Respondent, Vv. JAMES ANTHONY DAVEGGIO and MICHELLE LYN MICHAUD, Defendants and Appellants, SUPREME COURT COPY CAPITAL CASE No. $110294 (Alameda County Superior Court No. 134147A & B) BRIEF OF AMICUS CURIAE CALIFORNIA APPELLATE PROJECT IN SUPPORT OF THE AUTOMATIC APPEAL OF JAMES ANTHONY DAVEGGIO Joseph Schlesinger, SB No. 87692 Executive Director | California Appellate Project 101 SecondStreet, Suite 600 San Francisco, CA 94015 Telephone No. (415) 495-0500 Fax No. (415) 495-5616 Attorney for Amicus Curiae CALIFORNIA APPELLATE PROJECT DEATH PENALTY TABLE OF CONTENTS Table of Authorities.........cccc cece cece cee cece c eset ecseeeessteeeeeeeresesneaeea sees 3 Introduction. .......ccccceccccccuecccceucecceseussuuececeeeseeeeereeteeetseenettnaeegs 5 XIV. THE TRIAL COURT ABUSEDITS DISCRETION IN FAILING TO GRANT MR. DAVEGGIO’S SEVERANCE MOTION, DEPRIVING MR. DAVEGGIO OF A FAIR TRIAL AND DUE PROCESS OF LAW........cccssccccsssesssesetereeeeseeeseseccnsenessssressaseesseseenaes6 A. Procedural History...........sccssssesssrsessceesnesessesseseneecnneestnesenreeersy6 B. Standard of Review.........ccccsceccseseecsseecsneeeseeesecsnaeeesseesteesreeneaas 10 C. The Trial Court Abused Its Discretion in Denying Mr. Daveggio’s Severance Motion Because The Evidence Before The Trial Court At That Time Established that Co-Defendant’s Michaud’s Defense was Antagonistic to Mr. Daveggio’s Defense... .ccieccccccescccceccseessecssenseeteeseneeceesseessseeeesseessnaeeesrerereee 11 D. It is Reasonably Probable That Mr. Daveggio Would Have Received a More Favorable Result Had The Trial Court Granted the Severance Motion......c...ccceccssccsesecesssseceeevecceeeeees 16 E. Even If Severance Was Not Warranted At The Time Of The Motion, Reversal Is Nonetheless Required Because Joinder Resulted In Gross Unfairness And A Denial Of Appellant’s Due Process Rights..........:ccssssscsssseeeseeseceecsseeteenesnessseesenerennes22 FE, Conclusioni.........ccccccccececcucccsesessssscsseseenecceuscescuesseeuseceeeneeesonseeaes23 Certificate of Word Count.......... 0c. cece cece eect nee eee cere nee e ee eeeeeeeenanes24 TABLE OF AUTHORITIES Federal Cases Bruton v. United States (1968) 391 U.S. 123.0... icc ecece cree cnet e nee ee ees 8 Mills v. Maryland (1988) 486 U.S. 367.0... ...ccccc ee ceeecceee ee ee eens nance ene 10, 22 Woodson v. North Carolina (1976) 428 U.S. 280.0... cccece cece eeee nee ees21 Zafiro v. United States (1993) 506 U.S. 534.0... .. ccc cece cece eee ence e en ees 11, 22 Zant v. Stephens (1983) 462 U.S. 862.0... cece ence reece tence eee nnees 21 United States v. Holcomb (Sth Cir. 1986) 797 F.2d 1320.............eee eeees 12 United States v. Mayfield (9th Cir. 1999) 189 F.3d 895.000... 0. cccdl United States v. Romanello (Sth Cir. 1984) 726 F.2d.173...........c cece eee 13 United States v. Tootick (9th 1991) 952 F.2d 1078...........cc ccc eee ee ee passim State Cases In re Smith (1970) 3 Cal.3d 192... 0... ccecece cece ence eee ence nent e nen eee5 People v. Aranda (1965) 63 Cal.2d 518. .........ce cece ee ctte tener tenet teenies 8 People v. Arias (1996) 13 Cal.4th 92...........cc cece eee neee ee neete rene none 11, 22 People v. Coffman (2004) 34 Cal4th Loo... ccc cee eeceeeene rene eee e teen ens 16 People v. Cummings (1993) 4 Cal.4th 1233.00.00... cceeseeceeeee ents ne ee ee ees 11 People v. Hardy (1992) 2 Cal.4th 86...........cccceeceeeeeneneeeeeaes 8, 10, 12, 14 People v. Keenan (1988) 46 Cal.3d 478...........c ccc ecceeeeeee ene e ener enone 10, 22 People v. Massie (1967) 66 Cal.2d 899, ........cccceeee ee ee eee cene tenet cats 10, 11 People v. Mendoza (2000) 24 Cal.4th 130...........ccc cece cere cent e ee eenees 11, 22 People v. Scott (1994) 24 Cal.2d 774.0... .cccce cece cece eeee renee teen ene eneennens 10 Williams v. Superior Court (1984) 36 Cal.3d 441.000... cece cece cence ee cence 10 Belton v. Superior Court (1993) 19 Cal.App.4th 1279..........cccccceeee ences 10 Calderon v. Superior Court (2001) 87 Cal.App.4th 933...........cscseeeereeeee LO People v. Wheeler (1973) 32 Cal.App.3d 455.0... 0. ...ccc esses e nee e eee enees 11,12 3 Federal Statutes and Constitutions U.S. Const. amend. Vii... ccc cece cece eee ee ene eeee eee n eee e eee aeeasaetenens 6, 22, 23 U.S. Const. amend. V1... co cccccccccc cece eeeceeeeeneeesneeseeesessssssssssssess oy 29 U.S. Const. amend. VIL. ..... cece cece cence cree eee ene e sete tee e ene neee seeeeeree 6, 22 U.S. Const. amend. VII... 0... cece cece ec essesseeessestseseteeesseteeeOs 20, 21, 22, 23 U.S. Const. amend. XIV... o.oo. ccc ccc ccc nee ete eaeeetree eee eeeeeeneens 5, 6, 22, 23 State Statutes and Constitutions Cal. Const., art. 1, § 15.ccccccccsecseceeceeeccesesesvsscatsecsseeaeessneeseseesesneesss 5 Evid. Code § 1101.0... ice cece cere ee eee eee eee e ene een cena neennnnee senna es 7 Evid. Code § 1108...............4. Vee eeee sees ee ease eee enact en eee en en en tang eaesenes7 Pen. Code § 1098.0... ccccecceee eee ence err ern eer eene een enters en eae aare a teeeeeees 10 IN THE SUPREME COURTOF THE STATE OF CALIFORNIA THE PEOPLE OF THE STATE OF CAPITAL CASE CALIFORNIA, Plaintiff and Respondent, No. 8110294 V. JAMES ANTHONY DAVEGGIO (Alameda County Superior Court No. 134147A & B) and MICHELLE LYN MICHAUD, Defendants and Appellants, BRIEF OF AMICUS CURIAE CALIFORNIA APPELLATE PROJECT IN SUPPORT OF THE AUTOMATIC APPEAL OF JAMES ANTHONY DAVEGGIO INTRODUCTION Pursuantto its simultaneously submitted application for permission to file, amicus curiae, the California Appellate Project, submits this brief in support of the automatic appeal of appellant, James Anthony Daveggio. This pleading presents one argument not previously briefed — that the trial court abusedits discretion in failing to grant Mr. Daveggio’s multiple severance motions, depriving him ofa fairtrial and due process of law. As set forth in that application, this brief is presented to the Court to ensure that Mr. Daveggioreceivesa full presentation of all viable claimsin his automatic appeal (In re Smith (1970) 3 Cal.3d 192, 197) and thus, to protect his state and federal constitutional rights to appellate review and effective assistance of counsel on appeal of his capital conviction. (Cal. Const., Art. 5 I, §15; U.S. Const., Amends. VI and XIV.) Because this argumentis new, it is numbered XIV, which is sequential to the last numbered argumentin appellant’s openingbrief. ARGUMENT XIV. THE TRIAL COURT ABUSEDITS DISCRETIONIN FAILING TO GRANT MR. DAVEGGIO’S SEVERANCE MOTIONS, DEPRIVING HIM OF A FAIR TRIAL AND DUE PROCESS OF LAW. Thetrial court abusedits discretion in denying appellant Daveggio’s multiple severance motions because the evidencebeforethetrial court at the time of the motions showedthat co-defendant Michaud’s defense was prejudicially antagonistic to appellant’s defense. It is reasonably probable that appellant would have received a more favorable result in both the guilt and penalty phase hadthetrial court granted the severance motions because joinderprevented the jury from being ableto assess his guilt or innocence on an individual and independentbasis. Evenif severance had not been warrantedat the time of appellant’s severance motions, reversal is nonetheless required because joinder resulted in gross unfairness and a denial of his due processrights underthe 5th, 7th, 8th, and 14th Amendmentsto the United States Constitution. A. Procedural History On November 22, 2000, appellant’s counsel moved to severhistrial from co-defendant Michaud. (2 CT 375-381.) Appellant argued that Michaud’s defense was antagonistic to his own and that severance was necessaryto ensurea fair trial. He also asserted that separate trials were necessary to the extent the prosecution would introduce Michaud’s extrajudicial statements. (2 CT 378-79.) Appellant asserted that Michaud “{would] contend that Mr. Daveggio wasresponsible for the planning and execution ofall the crimes which were committed, and that she was more or less alongfor the rides.” (2 CT 380.) Appellant specified that “[s]he may also present a defense of complete or imperfect duress, by whichshe will introduce evidence that Mr. Daveggio subjected her to physical abuse and emotional intimidation which compelled her to participate in the criminal acts.” (2 CT 380.) The court was aware that appellant might very well testify at the guilt phase trial and would likely mount a defense that Michaud wasresponsible for the murder. (2 CT 412.) Appellant arguedthata joint trial would “subject Mr. Daveggio to two prosecutions, one presented by the People, and one by his codefendant.” (2 CT 380.) Appellant stated that his codefendant, Ms. Michaud, had given atleast four extensive interviews with law enforcement after her arrest. In those interviews, Michaud admitted that she was present andparticipated in the charged crime, as well as other crimes which the prosecution would likely seek to introduce through Evidence Code section 1101 or 1108. (2 CT 377-378.) Michaud additionally claimedthat appellant was the person who actually killed the victim and “instigated, directed, and was moreculpable than she for all the crimes.” (2 CT 378.) Appellant argued that the prosecution waslikely to introduce extrajudicial statements made by Michaud that wouldincriminate him and could not be redacted to avoid prejudice. (2 CT 378.) On December 22, 2000, Michaud also movedto sever the trial due to conflicting defenses. (2 CT 405.) Her motion made specific reference to her prior testimony in the Aleda Perez case in which she wasgranted immunity and attempted to blame appellant. (2 CT 405.) According to her 7 motion, Michaudanticipated that appellant would testify and blame herfor the murder. (2 CT 405.) The prosecutor filed a motion in opposition of severance on December28, 2000. (2 CT 413.) On January 2, 2001, the court held a hearing on the severance motion (2 CT 428-38) and an in-camera hearing with only appellants, the court, and the court reporter present. (See Supp. 2 CT 264-sealed.) The court denied the severance motion on both the Aranda-Bruton ground and the antagonist defenses ground. (2 CT 448-50.) The court based its ruling on assurances from the prosecution that it did not intend to introduce Michaud’s statements, and on People v. Hardy (1992) 2 Cal.4th 86, on the antagonistic defenses ground. With respectto the latter, the court admitted that “[t]his is an area of law that’s just not an easy thingto figure out.” (2 CT 448.) On June 21, 2001, appellant moved for separate juries based onhis conflicting defense with Michaud. (4 CT 861-65.) The court denied the motion. (3 RT 575-76.) On January 17, 2002, after appellant pled guilty to counts 1, 2, and 3, the trial court ruled that the testimony of the victims namedin those counts, as well as that of uncharged victims, would nonetheless be admissible at trial. In light of this ruling, appellant renewed his motion to sever thetrial. (15 RT 3510.) The court again denied the motion. (/bid.) On January 24, 2002, appellant’s counsel arguedthatthe guilty plea madethe reasons for severance “even more compelling . . . because the evidence against Michaud will be more extensive, pointing in different 8 directions from that against Mr. Daveggio.” (15 RT 3556.) Since thetrial court had denied his severance motion, counsel alternatively requested that the court advise the jury of appellant’s guilty plea “at an early juncture.” (15 RT 3557.) However, Michaud’s counsel objected to that on federal constitutional confrontation grounds, claiming amongotherthings, that it could “lighten the prosecution's burden in seeking death.” (15 RT 3559.) The court ruled that any prejudice to Michaud would be negated by the court telling the jury about the plea as opposedto hearing it from appellant. The court also asserted that its limiting instructionsto the jury would cure any remaining prejudice. The court further stated, “I don’t think the law anticipates because someonepleads guilty to a lesser countin a capital case that immediately the case gets severed.” (15 RT 3561.) On February 5, 2002, before the jury was sworn, appellant’s counsel renewed his motion to severthetrial based on his notes regarding the exhibits the prosecutor was planning to use during opening statement. (16 RT 3576-77.) Counsel argued “there's material dealing with the counts that my client has pled guilty to that will inflame the jury and there's no way any admonishment from the court would be able to not have an adverse psychological and evidentiary impact on these jurors.” (/bid.) Michaud also renewedher severance motionat that time. (16 RT 3577-78.) The court denied the renewed severance motions, relying on its prior ruling that the testimony of the victims in counts | through 3, as well as the uncharged victims, would be admissible even if the case wastried byitself. (16 RT 3581.) // // B. Standard of Review Under Penal Code section 1098, two or more defendants who are jointly charged with an offense mustbetried jointly unlessthe court, in its discretion, orders separate trials. The purposeofthe statute is to save time and expenseto both the state and defendant. (People v. Scott (1944) 24 Cal.2d 774, 778-779.) Regardless, a court retains the powerto sever properly joined casesin the interests ofjustice; further, "the pursuit of judicial economyandefficiency may neverbe used to deny a defendanthis right to a fair trial." (Belton v. Superior Court (1993) 19 Cal.App.4th 1279, 1285; Williams v. Superior Court (1984) 36 Cal.3d 441, 451-452; Calderon v. Superior Court (2001) 87 Cal.App.4th 933, 939.) A court's denial of a motion for severance is reviewed for abuse of discretion, judged onthe facts as they appeared at the time ofthe ruling. (People v. Hardy (1992) 2 Cal.4th 86, 167.) Consistent with the Eighth Amendment requirementofheightened reliability in capital cases, “severance motionsin capital cases should receive heightened scrutiny for potential prejudice.” (People v. Keenan (1988)46 Cal.3d 478, 500; see, e.g., Mills v. Maryland (1988) 486 U.S.367, 376.) If a trial court abusesits discretion in failing to grant severance, reversal is requiredif it is reasonably probable that the defendant would have received a more favorable result in a separate trial. (People v. Keenan, supra, 46 Cal.3d at p. 503.) In assessing a claim of improper denial of severance, an appellate court “. . . must weigh the prejudicial impactofall of the significant effects that may reasonably be assumedto have stemmed from the erroneous denial of a separate trial.” (People v. Massie (1967) 66 Cal.2d 899, 923.) 10 Additionally, even if a motion to sever was properly denied at the time it was made, reversal is required on appeal where the joinder actually resulted in gross unfairness amounting to a denial of due process. (People v. Mendoza (2000) 24 Cal.4th 130, 162; People v. Arias (1996) 13 Cal.4th 92, 127.) C. The Trial Court Abused Its Discretion in Denying Appellant’s Severance Motions Because The Evidence Before The Trial Court At The Time Of His Multiple Motions Established that Co-Defendant’s Michaud’s Defense was Antagonistic to Appellant’s Defense. A trial court abuses its discretion whenit fails to consider a defendant’s severance motion undera correct view of the law. (Massie, supra, 66 Cal.2d at p. 916-918 [this Court held that the trial court committed prejudicial error and reversed Massie’s codefendant’s conviction wherethe judge refused to consider two valid reasons for severance].) The trial court should order separate trials “in the face of an incriminating confession,prejudicial association with codefendants,likely confusion resulting from evidence on multiple counts, conflicting defenses, or the possibility that at a separate trial a codefendant would give exonerating testimony.” (Massie, supra, 66 Cal.2d at p. 917.) When codefendants’ conflicting defenses “move beyond the merely inconsistent to the antagonistic,” they prevent a reliable judgment and require severance. (People v. Cummings, supra, 4 Cal.4th at p.1287; United States v. Mayfield, supra, 189 F.3d at p. 899, quoting United States v. Tootick, supra, 952 F.2d at p. 1081, cited with approval in United States v. Zafiro, supra, 506 U.S.at pp. 542-543, [conc. opn. of Stevens, J.]; 11 People v. Wheeler (1973) 32 Cal.App.3d 455 [one defendant claimed second defendant forced him to participate in crime, but erroneousfailure to sever cases held harmless].) This Court has turned to federal authority for guidance in determining whether severance was required due to conflicting defenses. (People v. Hardy, supra, 2 Cal.4th at pp. 168-170.) “The prototypical exampleis a trial in which each of two defendants claims innocence, seeking to prove instead that the other committed the crime.” (United States v. Holcomb (5th Cir.1986) 797 F.2d 1320, 1324.) Severance is accordingly required when conflicting defenses are mutually exclusive; this Court has asserted that mutually exclusive defenses exist “where the acceptanceofone party's defense will preclude the acquittal of the other.” (People v. Hardy, supra, 2 Cal.4th at p. 169 [citations and quotation marks omitted].) In People v. Hardy, this Court explained that severance was properly denied because the three codefendants’ claims of innocence, although “technically ‘conflicting’,” werenot “particularly ‘antagonistic,’ since they were not fatally contrary to one another.” (/d. at168-69.) Hardy claimed he wasnotpresent at the crime scene and did notparticipate in the conspiracy; one codefendant claimed he withdrew from the conspiracy; and the final codefendantrelied on an alibi defense and claimed the other codefendant and an unknownthird person committed the murders. The Court stated it was “perfectly consistent”that one codefendant withdrew and that Hardy wasnot one of the conspirators. (Id. at 169.) Similarly, the conspirator whorelied on an alibi presumably wasnot present and thus could not know ifthe other codefendant withdrew or whether Hardy waspresent. (Id. at p. 169.) Thus, the defenses were not antagonistic at all because the jury could accept any of the codefendant’s 12 claims of innocence without foreclosing acquittal of any of the other codefendants. Accordingly,thetrial court did not abuseits discretion in denying Hardy’s severance motion. Conflicting defenses maybe sufficiently antagonistic to require severance—even if one codefendant does not directly blame the other—if the defenses are “closed in a fashion that does not suggest the intervention of a third party." (United States v. Tootick, supra, 952 F.2d at p.1081, citing United States v. Romanello, supra, 726 F.2d at p. 177.) In Tootick, the 9th Circuit Court of Appeal held thatthe trial court committed prejudicial error in denying Tootick’s severance motion even though Tootick did not directly accuse his codefendant. Rather, Tootick’s defense concerned his state of intoxication: he claimed he was too drunk to have attacked the victim. Tootick’s codefendant accused Tootick and denied any involvement. Since only Tootick and his codefendant were present when the victim was attacked, the jury could not acquit Tootick without disbelieving his codefendant. Accordingly, the trial court erred by not severing the trial. Here, thetrial court failed to consider appellant’s severance motion under a correct view of the law;at the time of the severance motion, the evidence before thetrial court established that appellant and Michaud had antagonistic defenses that moved beyond merely inconsistent to the point of being mutually exclusive. As appellant stated in his motion, Michaud was prepared to “contend that Mr. Daveggio wasresponsible for the planning and execution ofall the crimes which were committed, and that she was moreorless along for the rides.” (2 CT 380.) 13 In addition, Michaud had admitted to law enforcement that she was present andparticipated in the charged crime, as well as other crimes which the prosecution would likely seek to introduceat trial. (2 CT 377-378.) Michaudalso told law enforcement that appellant was the person who actually killed the victim and “instigated, directed, and was more culpable than sheforall the crimes.” In addition to mentioning this to the court, appellantattached to his severance motion the record of one of Michaud’s post-arrest interviews with law enforcement in which she made those claims. Thetrial court was also aware that appellant might very well testify at the guilt phase trial and would likely mount a defense that Michaud was responsible for the murder. (2 CT 412.) Thus, the recordbeforethetrial court at the time the severance motion was madeestablished that this was the prototypical example of antagonistic defenses; each defendant claimed innocence and sought to blamethe other for the crime. (2 CT 378.) Both appellant and Michaud’s antagonistic defenses were mutually exclusive because acceptance of oneof their defenses precluded acquittal of the other codefendant. Unlike the codefendants’ claims of innocencein Hardy, each codefendants’ claim of innocencehereis fatally contrary to the other. In Hardy, the jury could accept one codefendant’s defense without precluding acquittal of the others since the codefendantsdisputed their presence and claimed interventionbya third party. Here, on the other hand, Michauddid not claim that she wasnot present, but rather, was going to present a defense of duress and claim “that Mr. Daveggio subjected her to physical abuse and emotional intimidation which compelled herto participate in the criminal acts.” (2 CT 378.) Thus, if the jury were to accept Michaud’s duress defense, they would haveto also acceptthat appellant was responsible for the crimes, therefore 14 precluding his acquittal. Similarly, appellant was likely goingto testify at the guilt phasetrial and place blame for the murder on Michaud. (2 CT 412.) Accordingly, if the jury accepted appellant’s defense, it would also preclude acquittal of Michaud. Like the codefendant’s claims in Tootick, appellant and Michaud’s conflicting defenses did not suggest intervention of any third party. Ms. Michaud’s defense is also analogous to Tootick’s defense in that they both alleged that their own state of mind reduced their culpability. However, unlike Tootick’s defense, Michaud did directly blame appellant, rendering her defense even more antagonistic than Tootick’s. Appellant’s defenseis analogous to Tootick’s codefendant’s defense in that they both blamedtheir codefendant and denied any involvement. Thus,if the codefendants’ claims of innocence were mutually exclusive in Tootick, then appellant’ s and Michaud’s claims of innocence were also mutually exclusive. Sinceall of this was reflected in the record on January 2, 2001—the date upon which the trial court first denied appellant’s severance motion—thetrial court accordingly abusedits discretion. As a result, the trial court also abused its discretion whenit denied appellant’s renewed severance motions on January 17, 2002, and on February 5, 2002. By January 17, 2002, appellant had pled guilty to counts 1, 2, and 3, andthetrial court hadruled that the testimony of the victims namedin those counts, as well as that of the uncharged victims, would nonetheless be admissibleat trial. As appellant’s counsel argued,the guilty plea madethe reasonsfor severance “even more compelling . . . because the evidence against Ms. Michaud will be more extensive, pointing in different directions from that against Mr. Daveggio.” (15 RT 3556-57.) Thus, the trial court also abusedits discretion by denying appellant’s renewed motion 15 for severance on January 17, 2002. The reasons for severance were even more compelling on February 5, 2002. Atthis point, the antagonistic relationship between appellant’s defense and Michaud’s defense hadled to a strategic conflict. Appellant had wantedthe court to inform the jury of his pleaat the earliest possible juncture in light of the trial court’s denial of severance; Michaud’s counsel objected to that request on federal constitutional confrontation grounds, claiming would “lighten the prosecution's burden in seeking death.” (15 RT 3559.) Therefore, the trial court abusedits discretion in denying appellant’s motion not only on January 1, 2001, but also on January 17, 2002, and February 5, 2002. D. It is Reasonably Probable That Appellant Would Have Received a More Favorable Result Had TheTrial Court Granted the Severance Motion. Although a reasonable probability of a more favorable outcomeis not established if there exists sufficient independent evidence ofguilt against the defendant, manifest prejudice results when joinder prevents the jury from beingable “to assess the guilt or innocenceofthe defendants on an individual and independentbasis.” (People v. Coffman (2004) 34 Cal.4th 1, 42-43; Tootick, supra, 952 F.2d at p. 1083.) In Tootick, the Ninth Circuit outlined the various ways in which “mutually exclusive defenses can have a prejudicial effect upon the jury, and hence the defendants.” (Jootick, supra, 952 F.2d at p. 1082.) First, the Ninth Circuit explained that it creates a second prosecutor out of the codefendant whois accusing the other.bid.) Thus, the codefendant’s case became another forum in which the defendantis accused and tried. The codefendant is provided with perverse incentives to 16 do everything possible to convict his or her codefendant, butis not held to the samestandard as the prosecutor. Next, Tootick observed that joinder turns a complex case into a simple one benefitting the prosecutor; when the jury cannot properly decide each codefendant’s culpability, it instead convicts them both. (/bid.) This benefit to the prosecutor is bolstered because the government’s case becomesthe only consistent presentation. Thus, each time a codefendantcontradicts the other, it serves to reinforce the government’s case. Similarly, all evidencethat has the effect of exonerating one codefendantimplicitly indicts the other. bid.) In concluding that manifest prejudice resulted from the failure to sever, the Ninth Circuit in Tootick observed that each codefendant had used his opening and closing statements, as well as his witness examinations, to underminethe other’s claim of innocence andportray the otherasthe sole perpetratorof the crime. (Tootick, supra, 952 F.2d at p. 1085.) The Ninth Circuit also noted that the core of the government’s closing argument focused onthe exclusive nature of the two defendants’ defenses to establish their mutualguilt: it was impossible for the jury to accept both defendants at their word.(Id. at 1085-86.) Lastly, the Ninth Circuit remarked that the trial court’s generic instructions failed to cure any harm. Accordingly, joinder prevented the jury from assessing the guilt or innocence of each codefendant on an individual and independentbasis and reversal was required. (/d. at p. 1086.) Here, the trial court’s failure to sever appellant’s case from Michaud’s case preventedthe jury from being able to assess their respective guilt or innocence on an individual and independentbasis. First, joinderin the face of antagonistic defenses turned Michaud into a secondprosecutor against appellant. During the guilt phase, the jury was exposed to evidence 17 that was highly inflammatory and prejudicial to appellant that would have not been inadmissible in a separate trial. For example, two of Michaud’s friends testified that her personality changed in 1997 after she met defendant. Before 1997, she was “beautiful” and enrolled her kids in Catholic school; after meeting appellant, she began using methamphetamine and appeared depressed. (30 RT 6507-08, 6382.) Thejury was also exposed to evidence that Michaud wasa battered woman whowasvulnerable to abusive men. (30RT 6506-07.) A massage parlor ownertestified that Ms. Michaud’s ownfather visited her at the massage parlor and may have pimped her. (30 RT 6505-06,6522.) Psychiatrist Pablo Stewart testified that co-defendant Michaud suffered from complex PTSD from workingas a prostitute since she was 18 andthat rendered her vulnerable to abusive men. Dr. Stewart testified that Michaud was severely mentally ill and had a propensity to be controlled in a relationship. (31 RT 6598-99, 6613, 6708.) Illustrative of the perverse incentives noted by the Ninth Circuit in Tootick, Michaudtried everything possible to blame appellantin her closing argumentto the jury. Her counsel argued that Michaud was under the domination and control of appellant when the murder occurred. (34 RT 7262.) Counsel stated that Michaud had been doing well prior to meeting appellant, but appellant turned her into "a ghost person." (34 RT 7263.) Michaud’s counselalso referenced the friends’ testimonythat“she [Michaud] would do whatever James [appellant] asked her to do. She would get whatever James asked her to get.” (34 RT 7264.) // // 18 Michaud’s counsel further argued that appellant wasthe “muscle,” the primeforce in any ofthese incidents, and the “majorparticipant.” (34 RT 7267.) Ms. Michaud’s counsel argued that appellant put a gun in Michaud’s face prior to the murder,and triggered her severe mentalillness: “because you're acting under a mentalillness, complex posttraumatic stress, where you follow the orders of the dominantperpetrator, Mr. Daveggio.” (34 RT 7270.) Thus, the argument of Ms. Michaud’s counsel simply turned Michaud’s guilt-phase case into another forum in which appellant was accused andtried. Like the prosecutor in Tootick, the prosecutorhere benefited from these defendants’ antagonistic defenses. All of Michaud’s evidence | regarding herillness and appellant’s influence served as an indictment against appellant. Dueto the conflicting presentations between appellant and Michaud,the prosecutor’s theory wasthe only unified and consistent presentation. During the closing argument, the prosecutor used the exclusive natureof their defenses to show their mutualguilt. The prosecutor consistently referred to appellant and Michaud as “they,” and “them,” thus implying that it was impossible for the jury to accept both defendants at their word. (34 RT 7225.) Analogousto the trial court’s actions in Tootick, the trial court’s additional rulings and instructions to the jury in this case did not cure the harm to appellant. Similar to the trial in Tootick, the trial court here supplied the jury with generic instructionsat traditional times. If appellant’s case had been severed from that of his codefendant, his jury would have been instructed that codefendant Michaud was an accomplice as a matter of law and that her testimony had to be viewed with distrust. (34 RT 7272, 7383.) 19 In addition, as discussed in Argument X, following Michaud’s guilt phase argument, appellant’s counsel requested that he be provided five minutes to rebut portions of that argument. Michaud objected however, and after taking the matter under submission,the trial court denied the request. (34 RT 7272, 7383.) The trial court’s failure to sever also resulted in manifest prejudice to appellant in the penalty phase. Michaudpresented more evidenceat the penalty phase via witness testimony that her appearance andattitude changed after she met appellant. She presented witness testimony that when Michaud waswith appellant, he “. . . had her on a string, like a puppet” and whenhe“pulled the string, she did whatever he wanted her to do.” (37 RT 8098.) Michaud alsocalled appellant’s ex-wife to testify that appellant could be intimidating and usually had to be in control. (38 RT 8204-07.) Appellant, on the other hand,testified on his own behalfat the penalty phase, asserting that it was Michaud whokilled the victim. Citing his prior concern that the defendants’ antagonistic defenses required a severance, appellant’s counsel argued that Michaud’s penalty phase evidence was extremely prejudicial to appellant and moved for a mistrial. (38 RT 8213.) Counsel argued that “clearly what may be proper mitigation as to Ms. Michaudis improper aggravation as to Mr. Daveggio _... There is evidence that may be admissible for one purposethat really is extremely prejudicial and would otherwise be inadmissible . . . as to [Mr. Daveggio’s] supposed dominance, domineering or control overthe codefendant.” (38 RT 8213.) The joinder of Michaud’s mitigation case thus violated appellant’s due process and Eighth Amendmentrightsto a fair, reliable, individualized 20 and non-arbitrary sentencing determination. (See Woodson v. North Carolina (1976) 428 U.S. 280 [holding that the Eighth Amendment requires an “individualized” sentencing determination in which the jury considers “the character and record of the individual offender and the circumstancesof the particular offense.”]; see also Zant v. Stephens (1983) 462 U.S. 862, 879 [“What is important at the selection stage is an individualized determination on the basis of the character of the individual and the circumstancesofthe crime.”’) The juxtaposition of appellant’s mitigation next to Michaud’s mitigation evidence preventedthe jury from determining the appropriate sentence for appellant based on his background, character, and crime. Since an individualized sentencing determination must be based on the “character of the individual and the circumstances of the crime,”the background andculpability of codefendants have no place in the jury's decision. (See Zant v. Stephens, supra, 462 U.S. at 879.) Michaud attempted to show thatalthough she wasa prostitute, she had been trying to be good mother, doing things like volunteering at her church, and helping a 12-year old girl who had run away from home. Michaudalso claimed that her personality changed only after meeting appellant and getting into drugs. (34 RT 7262.) Michaud’s tragic upbringing and various mental impairments werenot relevant, however, to whether appellant should receive a death sentence. A process that encourages the jury to compare and contrast defendants to determine which one should receive the death penalty cannot withstand constitutional scrutiny. Evidence of Michaud’s background and comparisons betweenher and appellant would not have been permitted had 21 appellant been tried separately. Accordingly, appellant’s death sentence wasthe direct result ofjoinder, and reversal is required. E. Even If Severance Was Not Warranted At The Time Of Appellant’s Multiple Severance Motions, ReversalIs Nonetheless Required Because Joinder Resulted In Gross Unfairness And A Denial Of Appellant’s Due Process Rights. On appeal, reversalis required where the joinder of defendants actually resulted in gross unfairness amounting to a denial of due process even if severance was notinitially warranted at the time the motion was made. (People v. Mendoza, supra, 24 Cal.4th at p. 162; People v. Arias, supra, 13 Cal.4th at p. 127.) Forall the reasonsstated in the section immediately above, Michaud’s antagonistic defense presentations,at both guilt and penalty phases,resulted in gross unfairness such that appellant was denied due process of law. For the samereasons, appellant was also deprived ofthe heightened reliability required in capital cases. (U.S. Const., Amends V, VII, VIU and XIV; People v. Keenan, supra, 46 Cal.3d at p. 500; see Zafiro v. United States, supra, 506 U.S. 534; Millsv. Maryland, supra, 486 U.S.at p. 376.) Therefore, reversal is required even if severance was not warranted at the time of appellant’s multiple severance motions. // // H /I // // // // 22 F. Conclusion Forall of the foregoing reasons, appellant Daveggio’s Fifth, Sixth, Eighth, and Fourteenth Amendmentrights to fundamentalfairness, a fair and reliable guilt determination, a fair and individualized sentence, as well as his rights under California law, were violated as a result ofthetrial court’s denial of his severance motion. Accordingly, appellant respectfully requests that this court reverse his conviction and vacate his judgment of death. Dated: December 28, 2018 Respectfully Submitted, /S/ JOSEPH SCHLESINGER Executive Director CALIFORNIA APPELLATE PROJECT State Bar No. 87692 Attorney for Amicus Curiae CALIFORNIA APPELLATE PROJECT 23 CERTIFICATE OF COUNSEL (CAL. RULES OF COURT, RULE8.360(B)(1)) I am the supervising attorney for the appellate team at the California Appellate Project and supervised the preparation of this amicusbrief. I conducted a word countofthis brief using my office’s computer software, Microsoft Word 2013. Onthe basis of that computer-generated word count, I certify that this brief, excluding tables, exhibits, and certificates is 5059 wordsin length. Dated: December 28, 2017. /s/ Neoma Kenwood Appellate Team Supervising Attorney for the California Appellate Project 24 DECLARATION OF SERVICE Re: People v. Daveggio & Michaud, No. S110294 (related to Alameda Superior Court No. 134147A & B) (Code Civ.Proc., § 1013a, subd. (2); Cal. Rules of Court, rules 8.71(f), 8.77, 8.78(f) and (g)(2); Cal. Supreme Court Rules Regarding Electronic Filing) I, Fernando Yu Lei, declare: I ama citizen of the United States, employed in the City and County of San Francisco, am overthe age of 18 years and not a party to this action or cause. Myelectronic service address is flei@capsf-org, and my current business address is 101 Second Street, Suite 600, San Francisco, California 94105. On December28, 2017, I served the persons and/or entities listed below by the method checked. For those marked “Served Electronically,”I transmitted a PDF version ofBRIEF OF AMICUS CURIAE CALIFORNIA APPELLATE PROJECT IN SUPPORT OF THE AUTOMATIC APPEAL OF JAMES ANTHONY DAVEGGIOby TrueFiling electronic service or by e-mail to the e-mail service address(es) provided below. Transmission occurred at approximately 3:30 PM PST. For those marked “Served by Mail,” I deposited in a mailbox regularly maintained by the United States Postal Service, a copy of the above documentin a sealed envelope with postage fully prepaid, addressed as provided below. Catherine McBrien Scott F. Kauffman Deputy Attorney General California Appellate Project Huy T. Luong 101 SecondStreet., Ste. 600 Deputy Attorney General San Francisco, CA 94105 Office of Attorney General filing@capsf.org 455 Golden Gate Avenue, Suite 11000 San Francisco, CA 94102-7004 _X_ Served Electronically SFAG.Docketing@doj.ca.gov ___ Served by Mail X Hand Delivered X_ Served Electronically X Served by Mail 25 DECLARATION OF SERVICE David H. Goodwin 10153 Riverside Drive, PMB 793 Toluca Lake, CA 91602 dgood18055@aol.com X_ Served Electronically X_— Served by Mail SpencerStrellis Law Office of Spencer W.Strellis 237 Bonita Avenue Piedmont, CA 94611 strellis@mindspring.com X Served Electronically X Served by Mail Michael Charles Ciraolo Ciraolo & Ciraolo 160 Taurus Avenue Oakland, CA 94611-1932 Served Electronically X Served by Mail Janyce K.Blair 1609 Border Avenue Torrance, CA 90501 jkiblair@bleckmanblair.com _X__ Served Electronically _X__ Served by Mail Barry Martin Karl 620 Jefferson Avenue RedwoodCity, CA 94063 bkarl] @mindspring.com X Served Electronically X Served by Mail Office of the District Attorney Alameda County 1255 Fallon Street, Room 900 Oakland, CA 94612 Served Electronically X Served by Mail I declare under penalty of perjury under the lawsofthe State of California that the foregoing is true and correct. Executed on December 28, 2017, at San Francisco, California. 26 /S/ Fernando Yu Lei Supreme Court of California Supreme Court of California Jorge E. Navarrefe, Court Administrator and Clerk Jorge E. Navarrete, Court Administrator and Clerk Electronically RECEIVED on 12/28/2017 at 5.23.09 PM ARATION Electronically FILED on 12/29/2017 by April Boelk, Deputy Clerk weeeee eh. — eweee TE Re: People v. Daveggio & Michaud, No. 8110294 (related to Alameda Superior Court No. 134147A & B) (Code Civ. Proc., § 1013a, subd.(2); Cal. Rules of Court, rules 8.71(f), 8.77, 8.78(f) and (g)(2); Cal. Supreme Court Rules Regarding Electronic Filing) I, Fernando Yu Lei, declare: I am a citizen of the United States, employed in the City and County of San Francisco, am over the age of 18 years and nota party to this action or cause. Myelectronic service addressis flei@capsf.org, and my current business address is 101 SecondStreet, Suite 600, San Francisco, California 94105. On December28, 2017, I served the persons and/orentities listed below by the method checked. For those marked “Served Electronically,” I transmitted a PDF version of BRIEF OF AMICUS CURIAE CALIFORNIA APPELLATE PROJECT IN SUPPORT OF THE AUTOMATIC APPEAL OF JAMES ANTHONY DAVEGGIOby TrueFiling electronic service or by e-mail to the e-mail service address(es) provided below. Transmission occurred at approximately 3:30 PM PST. For those marked “Served by Mail,” I deposited in a mailbox regularly maintained by the United States Postal Service, a copy of the above documentin a sealed envelope with postage fully prepaid, addressed as provided below. Catherine McBrien Scott F. Kauffman Deputy Attorney General California Appellate Project Huy T. Luong 101 SecondStreet., Ste. 600 Deputy Attorney General San Francisco, CA 94105 Office of Attorney General filing@capsf.or 455 Golden Gate Avenue, Suite 11000 San Francisco, CA 94102-7004 _X_ Served Electronically SFAG.Docketing@doj.ca.gov Served by Mail X Hand Delivered X Served Electronically X Served by Mail 25 AMENDED DECLARATION OF SERVICE David H. Goodwin 10153 Riverside Drive, PMB 793 Toluca Lake, CA 91602 dgood18055@aol.com X Served Electronically X Served by Mail SpencerStrellis Law Office of Spencer W.Strellis 237 Bonita Avenue Piedmont, CA 94611 strellis@mindspring.com X Served Electronically X Served by Mail Michael Charles Ciraolo Ciraolo & Ciraolo 160 Taurus Avenue Oakland, CA 94611-1932 Served Electronically xX Served by Mail Kathy Rose Moreno P.O. Box 9006 Berkeley, CA 94709 Served Electronically X Served by Mail Janyce K. Blair 1609 Border Avenue Torrance, CA 90501 jkiblair@bleckmanblair.com X Served Electronically X Served by Mail Barry Martin Karl 620 Jefferson Avenue RedwoodCity, CA 94063 bkarl1 @mindspring.com X Served Electronically X Served by Mail Office of the District Attorney Alameda County 1255 Fallon Street, Room 900 Oakland, CA 94612 Served Electronically X Served by Mail I declare under penalty of perjury under the lawsof the State of California that the foregoing is true and correct. Executed on December 28, 2017, at San Francisco, California. /S/ Fernando Yu Lei