PEOPLE v. SMITH (PAUL GORDON)Appellant’s Reply BriefCal.April 18, 2012 ME COURTCOPY IN THE SUPREMECOURT OF THE STATE OF CALIFORNIA Calif. Supreme Court PEOPLE OF THE STATE OF CALIFORNIA No. $112442 Plaintiff and Respondent, Shasta Co. Super. ) ) ) Ct. No. 98F26452 v. y a | ) PAUL GORDONSMITH,JR., ) Automatic Appeal ) Defendant and Appellant. ) APPELLANT' S REPLY BRIEF KATHY MORENOSUP : FILE COURT STATE BAR 121701 ED - _—P.0.BOX 9006 — APR - BERKELEY, CA 94709 18 2012 (510) 649-8602 ~ Frederiok K. Ohirich Clerk katmoreno@comcast.net - | Deputy Attorney for Appellant By appointmentofthe Supreme Court . ad DEATFenanry TOPICAL INDEX THE TRIAL COURT'S REFUSAL TO GRANT A CHANGEOF VENUE IN ONE OF THE MOST SENSATIONALIZED MURDERCASESIN SHASTA COUNTY VIOLATED APPELLANT'S SIXTH, EIGHTH AND FOURTEENTH AMENDMENTRIGHTS 1 A. The Trial Court Erred by Refusing to Grant A Change of Venueat the Outset. 1 B. The Trial Court Erred by Refusing to Grant a Change ofVenue After the Highly Publicized Jail Escape Attempt and Assault on Deputy Renault. 4 1. Thetrial court erred by discounting the prejudicial publicity on the groundsthat it resulted from appellant's "willful act." 2. The local newspapercirculation of 35,000 did not moderate the impact ofprejudicial publicity on a jury pool of 70,000. 8 3. Most ofthe actual jurors had knowledge of the charged offense and/or the jailhouse incident. 10 4. Thetrial court's admonitions were inconsistent and incomplete and thus cannot serve to mitigate the prejudicial pretrial publicity. ti 5. The assurances of impartiality made by prospective jurors were incomplete and insufficient to mitigate the prejudicial publicity. AL C. Appellant's Trial Was Unfair Requiring Reversal Of His Convictions and Sentence of Death. 13 Il. TI. IV. TOPICAL INDEX(cont'd) THE TRIAL COURT'S REFUSAL TO ALLOW THE DEFENSE TO INQUIRE ON VOIR DIRE INTO POTENTIAL BIAS RESULTING FROM PRETRIAL PUBLICITY REGARDING THE JAILHOUSE INCIDENT VIOLATED APPELLANT'S SIXTH AND FOURTEENTH AMENDMENT RIGHTS TO AN IMPARTIAL JURY AND TO DUE PROCESS, AND HIS EIGHTH AMENDMENT PROTECTION AGAINST AN UNRELIABLE SENTENCE 14 THE ERRONEOUS ADMISSION OF LAY OPINION TESTIMONY BY AN OFFICER VIOLATED APPELLANT'S FEDERAL CONSTITUTIONAL RIGHTS TO DUE PROCESS AND A FAIR TRIAL 22 A. Sergeant Clemens' Opinion as to Appellant's Supposed Emotional State During His Statement To the Police WasIrrelevant, Improper and Prejudicial. 22 B. Clemens' Testimony Was Improper Opinion Tending To Invade the Jury's Fact-Finding Function. 24 C. Sergeant Clemens' Testimony Regarding Statements Made by Former Co-defendants Was Improper Opinion Testimony as to Their Veracity. 27 D. The Erroneously Admitted Testimony Was Prejudicial. 29 THE ERRONEOUS ADMISSION OF IRRELEVANT AND PREJUDUCIAL STATEMENTS MADE BY APPELLANT AND THE CO-DEFENDANTSVIOLATED APPELLANT'S FEDERAL ‘CONSTITUTIONAL RIGHTS TO DUE PROCESS ANDA FAIR TRIAL 30 A. TheTrial Court Erred in Admitting Statements Whose Only Relevance Was to Show the Prohibited Inference of Criminal Disposition. 30 il VI. Vil. THE TORTURE-MURDER SPECIAL CIRCUMSTANCE TOPICAL INDEX(cont'd) B. The Trial Court Erroneously Admitted Improper Opinion Testimony in the Former Co-Defendants' Statements that Appellant Had Tortured the Victim. C. The Improper Opinion Testimony Prejudiced Appellant. THE PROSECUTORIAL ERROR IN SHOWING TO THE JURY ENLARGED PROJECTED PHOTOGRAPHSOF THE VICTIM'S BODY IN THE GRAVE VIOLATED APPELLANT'S FEDERAL CONSTITUTIONAL RIGHTS TO DUE PROCESS AND A FAIR TRIAL A. Appellant's Claim WasPreserved and There Was NoForfeiture ofthe Issue. B. The Prosecutor Violated a Court Order. UNNECESSARILY HARSH AND VISIBLE RESTRAINTS USED ON APPELLANT DURING TRIAL VIOLATED HIS SIXTH AND FOURTEENTH AMENDMENTRIGHTS TO A FAIR TRIAL AND DUE PROCESS, AND HIS EIGHTH AMENDMENTPROTECTION AGAINST CRUEL AND UNUSUAL PUNISHMENT 31 35 37 37 38 4] FINDING MUST BE VACATED BECAUSE THE EVIDENCE IS CONSTITUTIONALLY INSUFFICIENT IN VIOLATION OF APPELLANT'S FEDERAL CONSTITUTIONAL GUARANTEE OF DUE PROCESS VIII. THE TORTURE-MURDERSPECIAL CIRCUMSTANCE FINDING MUST BE VACATED BECAUSE THE EVIDENCEIS CONSTITUTIONALLY INSUFFICIENT IN VIOLATION OF APPELLANT'S FEDERAL CONSTITUTIONAL GUARANTEE OF DUE PROCESS ili 43 49 IX. TOPICAL INDEX(cont'd) THE IMPOSITION OF THE DEATH PENALTYIN THIS CASE IS EXCESSIVE IN VIOLATION OF THE EIGHTH AMENDMENT PROTECTION AGAINST CRUEL AND UNUSUAL PUNISHMENTIN THAT APPELLANT'S VICTIMIZATION BY HIS FATHER, INCLUDING REPETITIVE RAPES OVER A THREE-YEAR PERIOD WHEN APPELLANT WAS TWOTO FIVE YEARS OLD, RESULTED IN A "FIXED" BRAIN CHEMISTRY RENDERING HIM COMPARATIVELY UNABLE TO CONTROL HIS BEHAVIOR AND RESPOND APPROPRIATELY TO HIS CIRCUMSTANCES AND OTHER PEOPLE 52 APPELLANT'S DEATH SENTENCE MUST BE REVERSED BECAUSE THE TRIAL COURT ERRONEOUSLY EXCUSED PROSPECTIVE JUROR SWIFT BASED ONHER VIEWS ON THE DEATH PENATLY, IN VIOLATION OF APPELLANT'S RIGHTS UNDERTHE FIFTH, SIXTH, EIGHTH AND FOURTEENTH AMENDMENTS 57 A. Respondent's Forfeiture ArgumentIs Based On an Inaccurate Reporting ofthe Record Facts. 57 B. Respondent Speculates That the Prospective Juror Could Have Been Excused for Hardship. 59 C. Prospective Juror Swift Was Wrongfully Excluded as a Juror. 59 D. Appellant's Death Sentence Must Be Reversed. 61 iv TOPICAL INDEX(cont'd) THE TRIAL JUDGE COMMITTED JUDICIAL MISCONDUCT AND THEN COMPOUNDED THE ERROR BY HOLDING A HEARING INTO HIS OWN CONDUCT, REFUSING TO INQUIRE OF THE JURORS, AND REFUSING THE DEFENSE REQUEST FOR A HEARING BEFORE AN IMPARTIAL JUDGE, THEREBY VIOLATING APPELLANT'S SIXTH AND FOURTEENTH AMENDMENTRIGHTSTO A FAIR TRIAL AND DUE PROCESS AND HIS EIGHTH AMENDMENT GUARANTEE OF A RELIABLE SENTENCING 62 A. Judicial Misconduct Can Be Shown Through Wordless Conduct, Including Gestures and Expressions. 62 B. The Trial Judge's Refusal to Permit an Impartial Hearing and to Inquire of the Jurors Violated Appellant's Federal Due Process Rights. 63 1. An impartial adjudicator is fundamental to a fair hearing. 6 3 2. A hearing is required, where, as here, there was substantial evidence refuting the judge's own account of the challenged conduct and there were discrepancies to be resolved. 64 C. The Unadjudicated Misconduct Requires Reversal of Appellant's Death Sentence. 69 D. The Trial Court's Misconduct and Ruling Violated Appellant's Eighth AmendmentRight To a Reliable Sentencing Determination. 70 XIl. XIU. TOPICAL INDEX(cont'd) THE THE TRIAL COURT VIOLATED APPELLANT'S FIFTH, SIXTH, EIGHTH AND FOURTEENTH AMENDMENTRIGHTS TO DUE PROCESS, A FAIR AND IMPARTIAL JURY, AND A RELIABLE SENTENCING DETERMINATIONBY FAILING TO EXCUSE JUROR NUMBER11 FOR MISCONDUCT DURING PENALTY PHASE DELIBERATIONS AND FOR DENYING THE NEW TRIAL MOTION BASED ON MULTIPLE INSTANCES OF SERIOUS JURY MISCONDUCT 75 A. JN 11 Committed Misconduct by Discussing JN 6's Notebook with JN 6 And the Jury Coordinator. 75 B. JN 11 Committed Misconduct by Discussing The Case with Former JN 6 After She Had Been Excused and then Repeating JN's 6 Commentsto the Deliberating Jury. 82 C. JN 11 and JN 4 Committed Misconduct by Injecting Into Deliberations Extrajudicial Information About Appellant's Security Level as a LWOPPrisoner. 86 D. The Jurors Committed Misconduct by Failing to Report the Improper Communications by JN 11, and by Failing to Begin Deliberations Anew After Former JN 6 Was Removedfrom the Jury. 88 E. The Multiple Instances of Juror Misconduct Require Reversal ofAppellant's Sentence OfDeath. 90 THE TRIAL COURT VIOLATED APPELLANT'S FIFTH, EIGHTH AND FOURTEENTH AMENDMENT RIGHTS TO DUE PROCESS AND TO A RELIABLE SENTENCING DETERMINATION BY ERRONEOUSLY ADMITTING IN AGGGRAVATION EVIDENCE THAT DID NOT INVOLVE CRIMINAL ACTIVITY OR FORCE OR VIOLENCE, AND THAT WAS UNRELIABLE 93 A. The Alleged Escape of April 1999 Was Inadmissible Aggravating Evidence Under Factor (b) or as Rebuttal Evidence. 93 Vi XIV. TOPICAL INDEX(cont'd) B. The Alleged Escape Attempt ofMay 2002 Was Inadmissible Aggravating Evidence Under Factor (b)or(c). 98 C. Evidence ofAppellant's In-Custody Possession of a Rolled-Up Newspaperand a Flattened Soda Can WasInadmissible Aggravating Evidence. 101 1. The flattened soda can. 101 2. The rolled-up newspaper. 102 D. Evidence ofthe Forcible Extraction ofAppellant From His Cell in February 2001 Was Inadmissible As Evidence in Aggravation. 104 E. The Erroneous Admission ofAggravating Evidence Rendered Appellant's Death Sentence Unreliable in Violation of the Eighth Amendment. 107 F, The Erroneous Admission ofMultiple Incidents As Aggravating Evidence Requires Reversal of Appellant's Death Sentence. 107 THE TRIAL COURT VIOLATED APPELLANT'S FIFTH, SIXTH, EIGHTH AND FOURTEENTH AMENDMENT RIGHTS BY ERRONEOUSLY EXCLUDING MULTI- GENERATIONAL MITIGATION EVIDENCE, INCLUDING A FAMILY HISTORY OF COVERING UP ABUSE 110 Vii XVII. TOPICAL INDEX(cont'd) THE TRIAL COURT VIOLATED APPELLANT'S FIFTH, SIXTH, AND FOURTEENTH AMENDMENTRIGHTS TO DUE PROCESS, TO PRESENT A DEFENSE, TO A FAIR TRIAL, AND THE EIGHTH AMENDMENT PROTECTION AGAINST CRUEL AND UNUSUAL PUNISHMENT AND A RELIABLE SENTENCING DETERMINATION BY EXCLUDING EVIDENCE THAT APPELLANT WOULD ADJUST WELL IN STATE PRISON AND BY EXCLUDING PROPER REBUTTAL EVIDENCEAS TO THE SECURITY LEVELS IN STATE PRISON; ALTERNATIVELY, DEFENSE COUNSEL WASINEFFECTIVE UNDER THE SIXTH AMENDMENTFORMAKINGPROMISESIN OPENING STATEMENTPRIOR TO LITIGATING THE ADMISSIBILITY OF THE PROMISED EVIDENCE REGARDING APPELLANT'S ADJUSTMENT AND PRISON SECURITY LEVELS 113 A. Expert Testimony that Appellant Would Adjust Well to Life in Prison Was Admissible in Mitigation. 113 B. Trial Counsel WasIneffective for Promising Testimony in Opening Statementto the Jury Prior to Having Litigated the Issue. 118 THE CUMULATIVE PREJUDICIAL IMPACT OF THE ERRORS AT THE GUILT AND PENALTY PHASESOF APPELLANT'S TRIAL VIOLATED HIS FIFTH, SIXTH, EIGHTH AND FOURTEENTH AMENDMENTRIGHTS TO DUE PROCESS, A FAIR TRIAL BY AN IMPARTIAL JURY AND A RELIABLE AND INDIVIDUALIZED SENTENCING DETERMINATION 124 CALIFORNIA'S DEATH PENALTY STATUTE, AS INTERPRETED BY THIS COURT AND AS APPLIED AT APPELLANT'S TRIAL, VIOLATES THE UNITED STATES CONSTITUTION 126 XVII. APPELLANT'S DEATH PENALTY IS INVALID BECAUSE PENAL CODE SECTION 190.2 IS IMPERMISSIBLY BROAD 126 Vill TOPICAL INDEX(cont'd) XIX. APPELLANT'S DEATH PENALTY IS INVALID BECAUSE PENAL CODE SECTION 190.3(A) AS APPLIED ALLOWS ARBITRARY AND CAPRICIOUS IMPOSITION OF DEATH IN VIOLATION OF THE FIFTH, SIXTH, EIGHTH, AND FOURTEENTH AMENDMENTSTO THE UNITED STATES CONSTITUTION 126 XX. CALIFORNIA'S DEATH PENALTY STATUTE CONTAINS NO SAFEGUARDS TO AVOID ARBITRARY AND CAPRICIOUS SENTENCING AND DEPRIVES DEFENDANTSOF THE RIGHT TO A JURY DETERMINATION OF EACH FACTUAL PREREQUISITE TO A SENTENCE OF DEATH; IT THEREFORE VIOLATES THE SIXTH, EIGHTH, AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION 126 XXI. THE CALIFORNIA SENTENCING SCHEME VIOLATES THE EQUAL PROTECTION CLAUSE OF THE FEDERAL CONSTITUTION BY DENYING PROCEDURAL SAFEGUARDSTO CAPITAL DEFENDANTS WHICH ARE AFFORDED TO NON-CAPITAL DEFENDANTS 126 XXII. CALIFORNIA'S USE OF THE DEATH PENALTY AS A REGULAR FORM OF PUNISHMENT FALLS SHORT OF INTERNATIONAL NORMSOF HUMANITY AND DECENCY AND VIOLATES THE EIGHTH AND FOURTEENTH AMENDMENTS 126 CONCLUSION 128 CERTIFICATE OF COMPLIANCE ix TABLE OF AUTHORITIES CITED Arizona v. Fulminante (1991) 499 U.S. 279 Atkins v. Virginia (2002) 536 U.S. 304 Bracy v. Gramley (1977) 520 U.S. 899 Brownv. Borg (9th Cir. 1991) 951 F.2d 1011 Brownv. City ofLos Angeles (2002) 102 Cal.App.4th 55 Bruton y. Johnson (10th Cir. 1991) 948 F.2d 1150 Eddings v. Oklahoma (1982) 455 U.S. 104 Fain v. Superior Court (1970) 2 Cal.3d 46 Furman v. Georgia (1972) 408 U.S. 238 Godfrey v. Georgia (1980) 446 U.S. 520 Haas v. County ofSan Bernadino (2002) 27 Cal.4th 1017 Hamblin v. Mitchell (6th Cir. 2003) 354 F.3d 482 Harris v. Superior Court (1992) 3 Cal.App.4th 661 Holbrook v. Flynn (1986) 475 U.S. 560 In re Carpenter (1995) 9 Cal.4th 634 In re Gay (1998) 19 Cal.4th 771 In re Hitchings (1993) 6 Cal.4th 97 Inre Khonsavahn S. (1998) 67 Cal.App.4th 532 In re Neely (1993) 6 Cal.4th 901 Irvin v. Dowd (1961) 366 U.S. 717 27 52, 53 64 112 63 82 114 6,7 49 49 63 110 7, 89 4] 91 104 78 38 121 1] TABLE OF AUTHORITIES CITED (cont'd) Johnson v. Mississippi (1988) 486 U.S. 578 Kennedy v. Louisiana (2008) 554 U.S. 407 Krulewitch v. United States (1949) 336 U.S. 440 Mongev. California (1998) 524 U.S. 721 Murphy v. Florida (1975) 421 U.S. 794 People v. Abbaszadeh (2003) 106 Cal.App.4th 642 People v. Adams (1983) 143 Cal.App.3d 970 People v. Avila (2006) 38 Cal.4th 491 People v. Bell (1989) 49 Cal.3d 502 People v. Boyd (1985) 18 Cal.3d 762 People v. Burnett (2003) 110 Cal.App.4th 868 People v. Calio (1986) 42 Cal.3d 639 People v. Cash (2002) 28 Cal.4th 703 People v. Chatman (2006) 38 Cal.4th 344 People v. Clark (2011) 52 Cal.4th 856 People v. Coddington (2000) 23 Cal.4th 529 People v. Daniels (1991) 52 Cal.3d 815 People v. Edwards (1991) 54 Cal.3d 787 People v. Elliot (2005) 37 Cal.4th 453 People v. Engleman (2002) 28 Cal.4th 436 Xl 41, 73 56 69 73 13 37 61, 105 53 37, 81 93-96 118, 120 34 14, 15, 17, 18 22, 23, 64-66 97 119 91 43 89 TABLE OF AUTHORITIES CITED (cont'd) People v. Eubanks (2011) 53 Cal.4th 110 People v. Famalaro (2011) 52 Cal.4th 1 People v. Franklin (1976) 56 Cal.App.3d 18 People v. Fudge (1994) 7 Cal.4th 1075 People v. Gomez (1953) 41 Cal.2d 150 People v. Harmon (1992) 7 Cal.App.4th 845 People v. Hernandez (1998) 47 Cal.3d 515 People v. Hill 1998) 17 Cal.4th 800 People v. Hendricks (1988) 44 Cal.3d 635 People v. Herring (1993) 10 Cal.App.4th 1066 People v. Hines (1997) 15 Cal.4th 997 People v. Huggins (2006) 38 Cal.4th 175 People v. Jennings (1991) 53 Cal.4th 334 People v. Lewis (2008) 43 Cal.4th 415 People v. Lindsey (1988) 205 Cal.App.4th 112 People v. Loker (2008) 44 Cal.4th 691 People v. McDonald (2008) 159 Cal.App.4th 736 People v. McKinnon (2011) 52 Cal.4th 610 People v. McPeters (1992) 2 Cal.4th 1148 People v. Martinez (2010) 47 Cal.4th 911 People v. Medina (1995) 11 Cal.4th 694 xii 97 1,2 62 113, 121 8 62 2,14 37, 38, 41, 68 7 123 12, 14 123 95 42 53 79 113-116 96 TABLE OF AUTHORITIES CITED (cont'd) People v. Melton (1988) 44 Cal.3d 713 24 People v. Michaels (2002) 28 Cal.4th 486 101 People v. Miller (2009) 175 Cal.App.4th 1109 42 People v. Minifie (1996) 13 Cal.4th 1055 108, 112, 122 People v. Miron (1989) 210 Cal.App.3d 580 31,35 People v. Mungia (2008) 44 Cal.4th 1101 47, 48 People v. Nelson (2011) 51 Cal.4th 198 96 People v. Nesler (1997) 16 Cal.4th 561 91 People v. Poggi (1988) 45 Cal.3d 306 55 People v. Pollock (2004) 32 Cal.4th 1153 108 People v. Pope (1979) 23 Cal.3d 412 121 People v. Proctor (1992) 4 Cal.4th 499 8, 9 People v. Quartermain (1997) 16 Cal.4th 600 121 People v. Raley (1992) 2 Cal.4th 870 49, 50 People v. Schmeck (2005) 37 Cal.4th 240 125-127 People v. Scott (1978) 21 Cal.3d 284 52 People v. Silva (1988) 45 Cal.3d 604 106 People v. Smith (2003) 30 Cal.4th 581 109 People v. Smith (1989) 214 Cal.App.3d 34 24 People v. Stankewitz (1985) 40 Cal.3d 391 87 People v. Stanley (2006) 39 Cal.4th 913 118 xiii TABLE OF AUTHORITIES CITED(cont'd) People v. Steele (2002) 27 Cal.4th 1230 86, 87 People v. Tuilaepa (1992) 4 Cal.4th 659 104 People v. Vargas (1973) 9 Cal.3d 470 123 People v. Vasquez (1993) 14 Cal.App.4th 1158 29 People v. Vera (1997) 15 Cal.4th 269 52 People v. Walker (1957) 150 Cal.App.2d 594 62 People v. Wilson (2008) 44 Cal.4th 758 79, 81, 85 People v. Woodard (1979) 23 Cal.3d 329 108 People v. Wright (1990) 52 Cal.4th 367 _ 104 People v. Younger (2000) 84 Cal.App.4th 1385 113 People v. Zimmerman (1980) 102 Cal.App.3d 647 121 Rhoden v. Rowland(9th Cir. 1993) 172 F.3d 633 41 Roper v. Simmons (2005) 543 U.S. 551 52, 53 Simmons v. South Carolina (1994) 512 U.S. 154 117 Skipper v. South Carolina (1986) 476 U.S.1 114 Taylor v. Kentucky (1978) 436 U.S. 478 124 United States v. Young (2d Cir. 1984) 745 F.2d 733 28 Wainwright v. Witt (1985) 469 U.S. 412 53 Wiggins v. Smith (2003) 539 U.S. 510 . 110 XIV TABLE OF AUTHORITIES CITED (cont'd) STATUTES Code. Civ. Proc., § 170.3 64 Pen. Code, § 190.2 43 Pen. Code, § 190.3 93, 107 ABAGuidelines for Appointment and Performance Of Counsel in Death Penalty Cases (1998) 111 Mahoney, 31 Hastings Const.L.Q. 385, 408 (2004) Houses Built on Sand: Police Expert Testimony in California Gang Prosecutions 28 XV I. THE TRIAL COURT'S REFUSAL TO GRANT A CHANGE OF VENUEIN ONE OF THE MOST SENSATIONALIZED MURDERCASES IN SHASTA COUNTY VIOLATED APPELLANT'S SIXTH, EIGHTH AND FOURTEENTH AMENDMENTRIGHTS (AOB,pp. 151-177; RB, pp. 93-131.) Appellant contends that the trial court erred by refusing to grant a change of venueat the outset ofthe trial, and again erred by refusing to grant a venue changedafter appellant's highly publicized jail escape attempt which occurred in the middle ofjury selection. A. The Trial Court Erred by Refusing to Grant A Change of Venueat the Outset. Respondentagrees that the trial court found that the nature and gravity of this case weighedslightly in favor of a change in venue (RB,p. 109) but points out that a capital case, standing alone, does not require a change ofvenue. (RB,p. 108, citing People v. Famalaro (2011) 52 Cal.4th 1.) However, appellant's argument doesnotrely solely on the fact that the case wasa capital one. Elsewherein his brief, respondent argues various factors ("prolonged beating death," "bludgeoned to death," "brutal and extensive beating”) that supposedly renderall errors "pale" by comparison. (RB, p. 261. 265, 270, 274-75.) These are the same kindsofinflammatory descriptions used in the media and the reason whythe nature of the crime weighed in favor of a change in venue. Thetrial court found that the "nature and extent ofpublicity"in this case did favor granting a change of venuein that it showed the possibility that a fair trial court not be had. Expert evidence established by a clear and convincing standard that appellant could not get a fair trial in Shasta County. (6RT 1228.) Respondentarguesthatit is reasonable to infer that memories of prospective jurors who may have been exposed to media coverage "would have been dimmedby the passage oftime," and that even heavy media coverage does not necessarily require a change ofvenue. (RB,p. 110, citing Famalaro, 52 Cal.4th at 22-23.) Appellant submits that this Court should defer to the trial court finding that the publicity weighed in favor of a venue change. Respondent contends that because appellant has argued that the evidenceis insufficient to support the torture allegation (see Arg. VII, below), this claim that the "gruesome"facts "merited a change of venue ring[s] hollow." (RB, p. 110.) This is not true. Firstly, facts of a homicide can be gruesomeevenifthey do not support a torture special circumstance. Secondly, appellant's claim asto the insufficiency of the evidence ofthe torture special circumstanceallegation refers specifically to evidence on an intent to increase suffering, not the absence of gruesomeorgrisly details relating to the murderitself. Respondent's own argument presents a paradox. He maintainsthat conduct giving rise to a special circumstanceis "extreme"by definition, but that "extreme" special-circumstance murder conduct cannot on its own be groundsfor a change ofvenue. (RB, p. 109.) .) Appellant has cited People v. Hernandez (1998) 47 Cal.3d 315 and People v. Edwards (1991) 54 Cal.3d 787 in support for his argumentthat the nature-and gravity of the offense in this case supports a change ofvenue. Respondentasserts that these cases are "clearly distinguishable" because the facts here did not include the "aggravating factors" present in those cases, i.e., sexual mutilation and 12-year old victims. (RB, p. 110.) Yet repeatedly throughout the rest of the brief, respondent argues that constitutional errors should be excused as harmless because the evidence overwhelmingly showsthe extremely brutal and aggravating nature of the offense. (See RB,pp. 154, 261, 265, 270, 274-75, 286, 292.) Ifthe offense is so brutal and horrifying as to require a finding of harmlessnessas to every other constitutional error, then the nature and gravity of the offense require a change ofvenue. The majority ofrespondent's argument focuses onthe trial court's refusal to grant the change ofvenue motion madeafter the highly publicized jail incident, which appellant addresses next. / / B. The Trial Court Erred by Refusing to Grant a Change of Venue After the Highly Publicized Jail Escape Attempt and Assault on Deputy Renault. Assuming arguendothis Court finds that the trial court properly refused to change venueat the outset ofthetrial, it was error to refuse the requested change ofvenueafter the highly publicized jail escape attempt and assault on Deputy Renault. Thetrial court again ruled that the nature and gravity of the crime weighed and the nature and extent ofthe publicity weighed in favor of granting a change in venue, but that weight was lessened by (1) the fact that the publicity was caused by appellant's own alleged criminalacts, i.e., the jail escape attempt and assault; (2) that the circulation of the local newspaper was 35,000 in a county with a population of 70,000; (3) that voir dire had revealed a venire with little knowledge of the facts of the charged murder, and good compliance with the court's orders notto read or talk about the case; and (4) those who had formed a bias because ofthe jail house incident had been excused. (19CT 1410-12.) Respondentarguesthat the trial court was correct in finding that these four facts were sufficient to outweigh the publicity and that a change ofvenue wastherefore not warranted. (RB, p. 113.) Appellant addresses each point in turn. 1. Thetrial court erred by discounting the prejudicial publicity on the groundsthatit resulted from appellant's "willful act." Appellant contends that the trial court erred in its assessment ofthe 4 factors relevant to determining the need for a change ofvenue whenit discounted the prejudicial publicity on the groundsthat the publicity resulted from appellant's "wilful conduct" and because the recent publicity "did not concern the facts underlying the charges in the case." (See AOB, p. 168, section 1, and AOB,p. 176, section 7; 19CT 4110-11.) ° Respondent's main line of criticism of appellant's claim is that the trial court "did not base its entire ruling on this principle” but stated that publicity resulting from a defendant's actions "may preclude the defendant from using such publicity as justification for a motion to change venue." (19CT 4110; RB, pp. 113-14.) Respondent makes muchofthe fact that the trial court used optional ("may") language rather than mandatory ("must"). (RB, p. 114.) In fact, the trial court expressly ruled that the weight of the publicity "was moderated [] by the defendant's own allegedly willful conduct [which] was the cause of the most recent pretrial publicity." (19CT 4110, Ist paragraph.) Respondentrelies on the introductory portion of the trial court's written ruling, andis blind to the actual ruling that specifically indicated it was discounting the publicity because of appellant's own actions in the jailhouse assault. (19CT 4110 [The extent and nature ofthe publicity weighs somewhatin favor of a change ofvenue, however, that weight is moderated by several facts. One, the defendant's own allegedly willful conduct which has resulted in new criminal charges wasthe cause of the most recent pretrial publicity concerning the June 22 jail incident."].) Respondentnext states that even ifthe trial court did base its denial of the venue motion on appellant's conductin the jailhouse assault, the ruling should be upheld despite the rule ofFain v. Superior Court (1970) 2 Cal.3d 46, which holdsthat publicity due to the defendant's misconduct should not be discounted as invited error. According to respondent, Fain is "distinguishable [] in many important ways." (RB,p. 114.) Respondent then points to procedural differences (Fain involved a pretrial appellate review) and factual differences in the crimes charged (Fain involved multiple minor victims) and in the defendants (the defendant in was a newcomerorstranger to the community, "unlike" appellant). (RB, pp. 114-15.) Asto this latter point, appellant must point out that he also was a newcomerto the community, having lived most of his life in group homesandinstitutions, and had only recently returned to Shasta County. Respondentalso describes the publicity in Fain as more "intense" and "substantial." Finally, according to respondent, "of incredible importance"is the fact that the jail escape attempt in Fain was temporarily successfulin that the defendant remainedat large for two days. (RB, p. 115-16.) Appellant's reliance on Fain should thus be "discounted" because ofthese differences according to respondent. (RB, p. 3.) In fact, appellant's situation was much more egregious than that in Fain. Appellant was already charged with a highly publicized capital murder, so that a strong reason for granting a change ofvenue already existed; the even more highly publicized escape attempt (whether successful or not) exacerbated the prejudice and need for a venue change. Of course, no two cases are exactly alike in procedural stance, underlying facts, and facts relevant to the issue at hand. It is easy to point out minor differences. Nonetheless, Fain held that a jailhouse escape occurring prior to the trial and causing prejudicial publicity should not be used to discount that publicity in deciding a change ofvenue motion, even if the publicity was caused by the defendant's own conduct. The invited error doctrine does not apply. (Fain, 2 Cal.3d at 53.) As explained in Harris v. Superior Court (1992) 3 Cal.App.4th 661, 666-67: "In an attempt to extract legal principles from an opinion that supports a particular point of view, we must not seize upon those facts, the pertinence ofwhich go only to the circumstancesofthe case but are not material to its holding. The Palsgrafrule, for example,is not limited to train stations." Respondentcites cases holding that the defendant is not allowed to profit from his own misconduct, including People v. Huggins (2006) 38 Cal.4th 175, 200 [upholding denial ofrequest to voir dire jurors after the defendant's in-court misconduct], People v. Hendricks (1988) 44 Cal.3d 635, 643 [upholding denial ofmotion for mistrial based on the defendant's own misconduct], and People v. Hines (1997) 15 Cal.4th 997,1054 [rejecting jury misconduct claim] — however, none ofthese is a change of venue case. (RB, pp. 117-18.) Even People v. Gomez (1953) 41 Cal.2d 150, a case preceding Fain and addressed by this Court in Fain, involved a motion to discharge the jury panel, rather than a motion for change of venue. Appellant addressed Gomez in his Opening Brief. (See AOB,p. 169.) In sum, appellant contendsthat the publicity resulting from the - jailhouse escape attempt and assault should not be discounted in reliance on the invited error doctrine, and that it is a factor weighing heavily in favor change ofvenue. 2. The local newspapercirculation of 35,000 did not moderate the impact of prejudicial publicity on a jury pool of 70,000. Respondent agrees with appellant that Shasta County ranks 28 out of 58 in California in terms ofthe size of counties, as this Court noted in People v. Proctor (1992) 4 Cal.4th 499. Appellant cited Proctor for the proposition that counties of this size "more frequently have occasioned venue changesthat cases involving more populous counties," and that "this factor weighs somewhatin favor of a change ofvenue." (/d. at 525-26; AOB,p. 164.) Respondent accuses appellant of "misreading" Proctor, even though Proctor was quoted correctly by appellant in the Opening Brief (and again in this brief). Respondent's accusation is based on the fact that even though the decision stated that the relatively smaller size ofthe county weighed "somewhat"in favor of a change in venue,it specifically held that the factor was not determinative. (RB, p. 119, citing Proctor, 4 Cal.4th at 353.) Appellant does not contend that the population of Shasta Countyis so small as to require a change of venue,i.e., appellant has not argued,as respondent implies, that the relatively small county is a determinative factor. Nonetheless, appellant does contend, as in Proctor, that the factor weighs somewhatin favor of a change ofvenue, and is not a "neutral" factor,as the trial court held. Citing People v. Jennings (1991) 53 Cal.4th 334, 363, respondent describes the critical factor as whether the county's population is large enoughto "dilute" prejudicial publicity. Using the statistics attached to Respondent's Brief, it can be seen that there are 20 counties under 100,000, and eight, including Shasta, under 200,000. Thirty counties have a population over 200,000. Thus, while Shasta is not the smallest of counties, its population is not large enough to dilute the prejudicial publicity, especially since Shasta is one ofthe larger counties by area. Moreover, while the circulation of the local newspaper was 35,000, this numberdoes not reflect the number of readers, which was more than likely two or three times that number. Considering that the population of adults eligible for jury service in Shasta County was only 70,000, educes the 200,000 population by a significant amount, the publicity from the newspaperalone reached a large majority of the jury-eligible population. 3. Most of the actual jurors had knowledge of the charged offense and/or the jailhouse incident. Respondent first contends that jurors' knowledge ofthe charged offense and/or the jailhouse incident, "eveniftrue," does not necessitate a change ofvenue. (RB, p. 12.3) Nonetheless, the jurors' knowledge is an important factor to consider. Thetrial court denied a change ofvenue on the grounds that venire membershadlittle knowledge ofthe facts of the crime and few opinionsas to appellant's guilt. However, a juror-by-juror analysis showsthat almost half ofthe jurors had knowledge ofthe offense and almost three-quarters had knowledgeofthe jail escape attempt and assault. (See AOB, p. 171.) Respondent does his own detailed juror-by- juror analysis, but — with one exception — his analysis does notrefute appellant's. (Appellant mistakenly noted that Juror Number8 was familiar with the facts of the jail incident. This is incorrect.) The more important pointis that the restriction on voir dire on the jail incident (see Arg.II, immediately below)-- and the trial court's own observation that the prospective jurors were reluctant to reveal how much information they had 10 — makesit impossible to conclude that the jurors wereable to lay aside preconceived impressions or opinion and render a verdict based on the evidence, as required for a fair trial under /rvin v. Dowd (1961) 366 U.S. 717, 723. Respondentargues that prior knowledge does not "require" a change ofvenue, and that the pretrial publicity had no effect on the jurors. This is far from certain. (RB, p. 128.) For example, the trial court asserted thatit had excused prospective jurors with a bias formed by publicity andthis is correct as to some venire member — yetthetrial court refused to allow the kind of inquiry on voir dire that could have and would have exposed a similar bias in other prospective jurors, including the sitting jurors. (See Arg.II, immediately below.) The question of change ofvenue cannot be determined separately from the issue of the improperrestriction on voir dire. 4. Thetrial court's admonitions were inconsistent and incomplete and thus cannot serve to mitigate the prejudicial pretrial publicity. Appellant's specific contention is that the trial court failed to admonishthree of the sitting jurors as to the inaccuracyofpretrial publicity, despite its stated intention to do so. (AOB,pp. 173-74.) Respondent maintains that this assertion is incorrect and 11 unsupported by the evidence — probably because he misapprehends appellant's claim. (RB,p. 130.) Respondentargues that the trial court instructed that the evidence waslimited to that presented in court, and provides multiple citations to this effect. However, appellant's pointis somewhatdifferent. Appellant agrees that the "trial court did instruct the jurors that media reports were not evidence,"as set forth in Appellant's Opening Brief, pages, 173-74. What thetrial court did not consistently do despite its stated intention was "to remind the jurors ofthe incompleteness and inaccuracy ofmost media reports." (AOB,p. 174.) This is the point appellant makesin this section, and the citations provided by appellant show,as appellant asserted in the Opening Brief, that three ofthe sitting jurors did not receive the admonition about the inaccuracy ofpublicity. (See AOB,p. 174 and fn. 9.) Respondent apparently misread appellant's argument. Consequently, his claim that the “appellate record defeats appellant's assertions" is incorrect. 5. The assurancesof impartiality made by prospective jurors were.incomplete and insufficient to mitigate the prejudicial publicity. In ruling that the prejudicial pretrial publicity could be discounted, the trial court relied on assurances of prospective jurors themselvesthat they could be fair and impartial despite exposure to that publicity. Appellant has cited to People v. Lewis (2008) 43 Cal 4th 415, 450 and 12 Murphy v. Florida (1975) 421 U.S. 794, 800, both of which declare that such assurances cannot be dispositive of the defendant's rights. Respondent ignores this case law and instead makesa related point, citing cases holding that appellate courts should give great weight to a trial judge's finding. Appellant does not disagree but makesa finer point. Becausethetrial court here relied too heavily on the jurors' own assurances of impartiality, which assurances were made by prospective jurors whohad not been sufficiently voir dired (see Arg. II, below) or fully admonishedas to the inaccuracy of media reports (see section 4, immediately above), this Court must discount the weight otherwise to be given to a trial court's findings onthis issue. Respondent accuses appellant of inserting "his own skepticism" to make an argumentthat is both "self-serving and speculative." (RB, pp. 122- 23) The accusationsare likely due to respondent's failure to understand the particular point appellant makes. Appellant does not argue that an appellate court should never defer to trial court rulings as to a juror's ability to be fair; rather appellant argues that under the particular circumstanceshere, as set out above, such deference is not warranted. C. Appellant's Trial Was Unfair Requiring Reversal Of His Convictions and Sentence of Death. Reversal is required where the refusal to grant a change of venue 13 results in an unfairtrial, which is demonstrated through the voir dire. (Lewis, 43 Cal.4th at 447; Hernandez, 37 Cal.4th at 336.) However, becausethetrial court improperly curtailed voir dire after the prejudicial publicity from the jail incident (Arg. II, below), appellant is foreclosed from making that showing. Consequently, appellant contendsthat this Court must reverse, based on the presumption that, at a minimum,it is reasonably likely that appellant did not havea fair trial, as in People v. Cash (2002) 28 Cal.4th 703, 718-23 [reversing death sentence wheretrial court improperly restricted voir dire]. Il. THE TRIAL COURT'S REFUSAL TO ALLOW THE DEFENSE TO INQUIRE ON VOIR DIRE INTO POTENTIAL BIAS RESULTING FROM PRETRIAL PUBLICITY REGARDING THE JAILHOUSE INCIDENT VIOLATED APPELLANT'S SIXTH AND FOURTEENTH AMENDMENT RIGHTS TO AN IMPARTIAL JURY AND TO DUE PROCESS, AND HIS EIGHTH AMENDMENT PROTECTION AGAINST AN UNRELIABLE SENTENCE In People v. Cash (2002) 28 Cal.4th 703, this Court set out the parameters of capital voir dire. Cash reversed a death sentence where the trial court prohibited the defense from inquiring in voir dire whether prosecutive jurors would automatically vote for the death penalty ifthe evidence showed the defendant had committed a prior murder. The restriction was found to violate the defendant's constitutional rights to an impartial penalty jury. (/d. at 721-22.) The sameis true in this case: the trial court improperly refused to permit defense voir dire on whether 14 evidence that the defendant had assaulted and gravely injured a jail officer in a thwarted escape attempt would affect prospective jurors’ ability to reach a fair penalty determination. Asexplained in Cash, "either party is entitled to ask prospective jurors questions that are specific enough to determineif those jurors harbor bias, as to some fact or circumstance shownbythetrial evidence, that would cause them notto follow [the court's penalty phase instructions." (bid.) Appellant was not allowed to ask such questions, stating (as did the trial court in Cash), that questions as to the escape attempt and assault were "not charged" and thus inquiring as to bias on that point would be "prejudging" the evidence. (22RT 5936-37.) Appellant maintains that the trial court erred by refusing to allow additional voir dire asto the jail assault on Deputy Renault, given that the assault and escape attempt occurred during jury selection and was highly publicized. Asstated in Appellant's OpeningBrief, the trial court's only exceptionto its prohibition on voir dire on this issue wasif the juror had close friends or family in law enforcement. Thus, the court asked one prospective juror whose father was a deputy sheriff if the jail assault incident would affect her evaluation of the case. (See AOB, p. 181 & fn. 14.) Respondent now claimsthat the fact that the trial court allowed voir 15 dire in this one instance of a prospective juror with a law enforcement relative, and defense counsel's statement that he "understood" the court's ruling, "contradict" appellant's assertions that defense counsel believed the precluded voir dire to be important and that the court refused to allow voir dire on the requested incident. (RB, p. 139, fn. 29.) Respondent is wrong. Defense counsel repeatedly requested additional voir dire on this incident, knowing that the evidence ofthe jail assault would be extremely dramatic and damaging, and that it was the kind of aggravating evidence that many people believe to warrant an automatic death penalty. (See e.g. 22RT 5937, 6074, 6099-6100.) Defense counsel sought a writ on the same issue, something they would not have doneif they did not believe that voir dire on this issue wascritical. (See 22CT 5126-28 [petition for writ ofmandate denied July 15, 2002; 25RT 699798]; see 22CT 5035 [supporting documentin petition for writ ofmandate setting forth requested voir dire question on the jail assault incident.) Defense counsel's statementto thetrial court that he understood the court's ruling meansjust that, i.e., that he understood, and not that he withdrew his objection or agreed with the court. Given that defense counsel continued to request voir dire on the incident andfiled a petition for writ of mandate requesting voir dire on the incident refutes respondent's notion that counsel's courtesy in court somehow 16 "contradicts" the claims counsel repeatedly madein thetrial court and the Court of Appeal, and that appellantreiterates before this Court. Asto the merits, respondent makes two arguments,both fallacious. Respondentarguesfirst that there is no indication that the court's refusal to allow the requested voir dire "resulted in an impartial jury" because none of the jurors indicated he or she had a "special relationship with a memberof law enforcement," or more specifically, with a "correctional officer." (RB, p. 141.) This is not the proper standard. As set out in Cash, each party is "entitled" to voir dire on questions specific enough to determineif the prospective jurors harbor bias as to some fact shownbythe trial evidence. The standardis not that each party is entitled to ask voir dire questions only of jurors whofirst disclose some special relationship to the facts or circumstances shownbythe evidence that would trigger their bias.' The trial court's ruling, and respondent's argument, wrongly presuppose that only a prospective juror related by friendship or blood to a law enforcement officer (or more particularly a correctional officer) might be biased by ! Respondentalso argues that the composition of the jury (i-e., that none had a "special relationship" with a law "demonstrates why [the court] limited voir dire in the way it did." (RB, p. 141.) The argumentis specious. For onething, the court limited voir dire the wayit did before the jurors were chosen. Moreover, the limits on voir dire prevented delving into any special relationship or bias a prospective juror might have had on the facts of the jail attempt/assault. 17 hearing the facts of the jail house assault. This is akin to saying that ina case involving a brutal rape of a child, only someone whohasa child would be capable of harboring bias in a penalty trial from hearing suchfacts. Respondent's second argumentis that defense counsel soughtto voir dire on the newsof "a police officer being beat up in jail," and that this line of questioning was properly refused because no "police officer" was assaulted, as Deputy Renault was a "correctional officer" who was "responsible for security inside the Shasta County Jail." (RB, pp 142-43.) Respondentthus concludesthat the attempted line of questioning was "too broad" and this Court's decision in People v. Cash is thus "distinguishable." (RB,p. 143.) Once again, respondent is wrong. Defense counsel's proposed voir dire questions, filed on June 26, 2002, included this question: "Ifthe victim was a Correctional Officer, Peace Officer or other Law Enforcement personnel how would that change your feeling or thoughts on the case?" Respondent cites defense counsel's argumentto the trial court at one point wherehesaid "police officer," but counsel formally andinitially posed the argument using the term "correctional officer," arguing that question would be relevant to bias. (22RT 5936 ["Ifwe werestarting the beginning of the case and everybody knew aboutthat jailhouse incident, whether[] a correctional officer was the victim would certainly be relevant to bias and 18 prejudice.") Consequently, respondent's argumentthatthe trial court properly refused to allow the requested voir dire question because the defense wanted to voir dire as to an assault on a "police officer" rather than a "correctional officer" is based on an incorrect premise. In any case, respondent's hair-splitting semantic argument makes little sense. The purposeofvoir dire is to identify jurors whose death penalty views would prevent or substantially impair their duties. Many people might find that an attack on a peace officer while in custody should mandate the death penalty for a convicted murderer. However, it is highly unlikely that any prospective juror would have sucha bias only if the victim wasidentified as a "correctional officer" but not if the victim was identified as a "police officer." The relevant point is that the assault was on a law enforcementofficer by a defendant in custody for murder. Soit is speciousto assert, as respondent does,that the trial court could properly preclude voir dire on this question because defense counsel once madethe request in terms of a "police officer" victim (even though the defense request wasalso posed in termsofa correctional officer or peace officer or law enforcement personnel victim). Finally, respondent argues that appellant's claim is "speculative" and that no constitutional error has been established because appellant failed to demonstrate "how the limitations on voir dire resulted in an impartial [sic: 19 partial or biased] jury." (RB, p. 145.) Respondentalso arguesthatthis Court should find any error harmless because appellant did not explain "what additional inquiry was necessary foran intelligent exercise of peremptory challenges in light of their responses to questionsthe trial court did permit." (RB, p. 143.)What additional inquiry was necessary was the question proposedforall prospective jurors and rejected by the trial court, i.e., whether a peace/police/correctional/law enforcementofficer victim would trigger bias in a prospective juror.” Thetest for harmlessnessarticulated by respondentis not the proper standard in any case. In Cash, this Court reversed because the prior murder on whichthetrial court prohibited voir dire was a general fact or circumstance "likely to be of great significance" which could have caused some jurors invariably to vote for the death penalty regardless of the mitigating evidence. This Court explained that reversal ofthe judgment of| death was required "[b]Jecausethe trial court's error makesit impossible for Respondent's final argument in support of a finding of harmlessnessis particularly specious. Respondent points to testimony from appellant that Ben Williams and not he hit the deputy andthat the plan was that the deputy not be hurt; respondent then argues that appellant's testimony and other evidence "disassociated appellant from the actual beating.” (RB, pp. 144-45.) The prosecutorat trial had a starkly different view ofthe evidence presented and argued to the jury that despite appellant's testimony "that's not the way it happened.” The prosecutor argued the evidence showed that appellant wasstriking the deputy and that attempted to murder him. (SORT 14243-47.) 20 us to determine from the record whether any of the individuals who were ultimately seated as jurors held the disqualifying view that the death penalty should be imposedinvariably and automatically on any defendant who had committed one or more murders other than the murder charged in this case... ." (Id. at 723.) The sameresult is mandatedhere. 21 Il. THE ERRONEOUS ADMISSION OF LAY OPINION TESTIMONYBYAN OFFICER VIOLATED APPELLANT'S FEDERAL CONSTITUTIONAL RIGHTS TO DUE PROCESS AND A FAIR TRIAL Appellant arguesthat the trial court erred by allowing Sergeant Clemensto testify to his opinion as to appellant's emotional state during his police interrogation, and to the veracity of the statements by the former co-defendants. A. Sergeant Clemens’ Opinion as to Appellant's Supposed Emotional State During His Statement to the Police Was Irrelevant, Improper andPrejudicial. After showing appellant's videotaped statement in which appellant Showed emotion (crying andin tears), the prosecutor called Sergeant Clemensto testify to his opinion that appellant in fact did not show the emotion that appeared in the videotape. Respondent agrees that "[gjenerally, a lay witness may not give an opinion about another person's state ofmind," but argues that Sergeant Clemensdid not give an "opinion." Respondentinsists that Clemensonly testified to "objective behavior" which he described "as being consistent with [appellant's] state ofmind.” (RB, p. 14.) People v. Chatman (2006) 38 Cal.4th 344, 397 stated that a lay witness may not give an opinion as to another's state ofmind, but may testify about objective behavior and describe behaviorthat is consistent with a particular state ofmind. / 22 According to respondent, appellant's argument that Clemens' testimony wasirrelevant is incorrect, because it is based on a misdescription of the challenged testimony as an opinion aboutappellant's state ofmind (which wouldbe irrelevant under Chatman); whereas, according to respondent, "close scrutiny" of Clemens' testimony showsit to be "incredibly relevant" testimony as to "objective behavior" tending to prove appellant's intent to torture. (RB, pp. 149-50.) Appellant disagrees. Close scrutiny shows,first, that the prosecutor intended to rebut the objective evidence of appellant's behavior with Sergeant Clemens’ opinion contradicting that objective behavior. Secondly, Clemensdid indeed give an opinion. The videotape — the objective evidence — wasplayed to the jury and showed appellant "breaking down and crying." However, the prosecutor argued to the trial court that "anybody can sniff," and stated his intention to have Clemenstestify that despite (and contrary to) the objective videotape evidence, appellant actually did not display "emotion" at these moments. Thus, Sergeant Clemens wasallowedto testify that "[d]uring those twoorthree timesthat the defendant appeared from the videotape to be displaying some emotion," Clemensdid not see any indications "that would showthat there was some emotion coming through." (33RT 9341-42.) / / 23 This was an opinion:first, as to what the video appearedto display, and second, that what he observed did not "show" any emotion. Appellant would not be arguing this claim had the witness (or the prosecutor) confined the testimony to what Clemens saw, without augmentinghis observations with his opinion as to whether what he saw indicatedreal emotion or not. Clemenstestified that despite the objective view ofthe videotape, in his opinion, appellant was not actually displaying emotion. This wasirrelevant and improper lay opinion testimony. Respondentasserts that Clemens did not give an "opinion over[sic] whether appellant was being genuine in the display of his emotions." (RB, p. 150.) As explained in the preceding paragraph, this is demonstrably incorrect. Clemens gave an opinion, and moreover, it was an opinion that contradicted the objective evidence of the videotape, which, of course, was whythe prosecutor was so keepto elicit it. B. Clemens' Testimony Was Improper Opinion Tending To Invade the Jury's Fact-Finding Function. Appellant also maintains that Sergeant Clemens' improper opinion testimony tended to invade the jury's fact-finding function. This case is on all fours with People v. Smith (1989) 214 Cal.App.3d 34, 39-40, which founderror in the admission of testimony by a deputy sheriff that he could tell by the tone ofvoice of the victim that his dying declaration wassincere. Relying on People v. Melton (1988) 44 Cal.3d 713, 714, the Smith court 24 noted that although the deputy's opinion may have been based on his perceptions, it was unnecessary and tended to invade the province of the jury. Respondent conspicuously chooses to ignore these cases, although his argument contains no case law supporting his position. Respondent argues that Clemensdid not state an opinion that he believed or disbelieved appellant. (RB, p. 50.) This is not true. The videotape showsappellant crying and tearful, and Clemenstestified that he saw nothing "that would support that emotion." That is, Clemenstestified that appellant was faking for the camera, whichis indeed an opinionas to appellant's sincerity and veracity, i.e., an opinion that he did not believe appellant's display. Ofparticular interest is respondent's argument that the objected-to testimony should be deemed harmless with respect to the torture-murder special circumstance finding because "multiple witnesses [] substantiated the special circumstancesallegation of torture [and] none of this evidence / / 25 came from Sgt. Clemens." (RB, p. 154.) Yet in arguing the relevancy of Clemens’ testimony, respondent argued that it was "incredibly relevant" precisely because Clemens' testimony proved that appellant "intended"to torture. (RB, p. 149.) This Court cannot do as respondent has done,i.e., argue that the testimony was "relevant" to show intentto torture, but harmless becauseit did not show intent to torture. Respondentalso argues that Clemens' testimony was harmless because it "allowed appellant to present mitigating evidence as to his reason for killing [] without actually testifying." (RB, p.154.) The argument makes no sense and is wrong onall scores. First, appellant did not present Clemens' testimony: Sergeant Clemens' testimony was presented by the prosecution. (See 33RT 9329 [direct examination ofRon Clemensby the prosecutor]; 9337-42 [objectionable testimony on further direct examination by prosecutor].) Secondly, the testimony was not "mitigating" becauseit was presented at guilt phase by the prosecution, and evidence that in Clemens' opinion any apparent remorse shown by appellant on the videotape wasin fact not true is hardly "mitigating." And third, at penalty phase, appellant did "actually testify" on his own behalf. (See 46RT 12989 et seq.) In sum, Sergeant Clemens' testimony as to appellant's videotaped police statement was prejudicial because it made appellant look likea liar, 26 particularly with respect to the torture-murder special circumstance. The prosecutor's position was that appellant took sadistic pleasure in killing the victim, and appellant's videotaped statement, in which he wasreduced to tears, would have rebutted that position, except for Clemens' testimony. In this sense, Clemens' testimony operated as an admission or confession on appellant's behalf as to the torture special circumstance. (Cf. Arizonav. Fulminante (1991) 499 U.S. 279, 331 [a defendant's confession acts as an "evidentiary bombshell" leaving an "indelible impact" on the jury (See also Part D., below.) C. Sergeant Clemens’ Testimony Regarding Statements Madeby Former Co-defendants Was Improper Opinion Testimony as to Their Veracity. Appellant also argues that Sergeant Clemens' testimony (that the law enforcement officials told the former co-defendants to "tell the truth" in their police statements and that the "overriding premise" in these directives wasto get these witnessesto tell the truth) was improper opinion testimony as to other witnesses' veracity. (34RT 9631-32.) Respondent contendsthat Clemensnevertestified to his opinion that a particular witness wastelling the truth. (RB, p. 153.) Appellant does not disagree: in Appellant's Opening Brief, he argued: "Although Clemensdid notdirectly state [his opinion] that the co-defendants' police statements were truthful, the implication in his testimonyaselicited by the prosecutor wasto that effect." 27 (AOB,p. 195.) Jurors are people and would understand Clemens’ testimony as an assertion by him that the co-defendants were in fact telling the truth, as the police had urged them to. Indeed, what other purpose would Clemens' testimony on this point serve? And the prejudicial impact ofthis implied opinion as to the truthfulness of the co-defendants' statements (and testimony to the same effect) was exacerbated by Clemens' previous testimony that appellant's seemingly remorseful statementto the police was in his view faked. Finally, in a footnote, respondent complains that appellant cites no authority in support ofthe argumentthat testimony from a police officer would likely be given heightened importance by a jury. (RB, p. 152.) No citation is necessary for the proposition that police officers are viewed as powerful symbols of authority. Jury questionnaires and voir dire routinely include questions to prospective jurors as to whether they would consider police officer testimony as more credible than other witnesses. Nonetheless, appellant provides the following authorities for the proposition that jurors often consider police officers to have an aura of special reliability and trustworthiness, which increasesthe risk ofprejudice from improperly admitted police officer testimony: United States v. Young (2d Cir. 1984) 745 F.2d 733, 765-66; Mahoney, 31 Hastings Const.L.Q. 385, 408 (2004) Houses Built on Sand: Police Expert Testimony in California Gang 28 Prosecutions; see also People v. Vasquez (1993) 14 Cal.App.4th 1158, 1162 [observing that a uniformed police officer is surrounded by an aura of authority|. D. The Erroneously Admitted Testimony Was Prejudicial. Respondent argues that any error from Sergeant Clemens' testimony was harmless, since appellant admitted killing Sinner and testimony by other witnesses substantiated the torture special circumstance. (RB, p. 154.) But the "other witnesses" were precisely those witnesses whose testimony Sergeant Clemensverified as being truthful. Testimony by these formerco- defendants and accomplices with a strong motiveto testify against appellant in as aggravating a manneras possible would have been much weakerand subject to attack without the imprimatur of Sergeant Clemens' testimony. That Amy, Lori and Eric testified against appellant cannot be used to argue that Clemens' testimony, effectively stating that their testimony wastruthful, should be deemed harmless. 29 IV. THE ERRONEOUS ADMISSION OF IRRELEVANT AND PREJUDUCIAL STATEMENTS MADE BY APPELLANT AND THE CO-DEFENDANTS VIOLATED APPELLANT'S FEDERAL CONSTITUTIONAL RIGHTS TO DUE PROCESS AND A FAIR TRIAL A. The Trial Court Erred in Admitting Statements Whose Only Relevance Was to Show the Prohibited Inference of Criminal Disposition. Appellant argues that the trial court erred in admitting various statements appellant made to the police about reasons he hadfor killing people, how killing some person else would not bother him, and about guns he had hadin the past: the statements amounted to improper evidence of criminal disposition and wereofthe type that prompt an emotional reaction against the defendant causing the jury to decide the case on an improper basis. None ofthe statements had any relevance to appellant's state of mind at the time ofthe charged offenses. (See AOB,pp. 198-201.) Respondentdoes not address appellant's arguments that the statements showedcriminal disposition. Instead, he asserts that the statements showedappellant's intent to kill the victim and his "indifference to life" in that "killing someoneelse did not [bother him]." (RB, p. 16061.) Respondentalso maintains that appellant's statement that it was the first time he didn't have a gun when he needed one "demonstrated a sadistic purpose as required by the torture special circumstanceallegation," and was "incredibly probative in revealing [his] intent." (RB, p. 161.) 30 Respondent's arguments prove too much.* If appellant's statements as to reasons he might havefor killing other people show hisintent to kill the victim in this case, and his indifferenceto life and thus his malice aforethought (as respondent suggests), that proof is reached only through the circumstantial but prohibited link of criminal disposition,i.e., appellant would kill other people, thus he intended kill the victim, and appellant was indifferent to life in general, and thus he harbored malice whenkilling the victim. B. The Trial Court Erroneously Admitted Improper Opinion Testimony in the Former Co-Defendants' Statements that Appellant Had Tortured the Victim. Appellant arguesthat the trial court erred in admitting statements by the co-defendants that he "tortured" the victim, because this testimony was improper lay opinionas to the ultimate question, i.e., the torture special circumstance allegation. (People v. Miron (1989) 210 Cal.App.3d 580, 583 [upholding trial court exclusion of defense-proffered testimony that an eyewitness aid the victim "was trying to kill us" on the grounds it was improperlay opinion testimony].) 3 Respondentrepeatedly describes the objectionable statements as "extremely probative," "incredibly probative," and "incredibly relevant." (See RB, pp. 160-61.) Vehemenceor hyperbole on the part ofrespondent does not, however, translate into a theory of relevancy nor doesit refute appellant's claim that the statements showed only criminal disposition. 31 Respondent complains that appellant cited the trial court's rulings but not the "actual testimony at issue," and thus "hasfailed to object to specific testimony"at trial. (RB, p. 162.) Appellant did object to the specific testimony by the former co-defendants that appellant tortured and wastorturing the victim, and the trial court overruled those objections. Appellant cited the portion ofthe record in whichtrial counsel objected to the references to torture in the witnesses’ statements to the police. (See AOB,p. 202, citing 7RT 1661, 1698 and 8RT 1725-40.) The citation to 7TRT 1661 is a typo and should be 7RT 1662: at that page defense counsel argued that Lori's use ofthe word "torture" wentto the ultimate issue in the case. At 8RT 1725-26, defense counsel objected "to the word torture throughout this section" ofthe witness's statement, on the groundthat it was improper opinion testimony on the ultimate issue. Respondent arguesthat the court redacted the co-defendants' statements as to the torture issue, citing 7RT 1737 and 1740.Thetrial court did grant a few of appellant's objectionsto the torture testimony: for example, at 7RT 1739-40,trial counsel made additional objections and the court granted the request as to three lines on page 15 but allowed another sentence in which the witness agreed that appellant "tortured." (7CT 1126- 236.) Respondent says that "it does appear that at least part of the issue was settled by all parties agreeing that portions of co-defendants' testimony be 32 redacted.” (RB, p. 162, citing 7RT 1740.) The matter certainly was not "settled" by "agreement" ofthe defense. As noted above,and in citation | provided in the Opening Brief, defense counsel objected "to the word torture throughoutthis section" of the witness's statement, on the ground that it was improper opinion testimony on the ultimate issue. (8RT 1725- 26.) In sum, appellant's objections were overruled and tape recordings of the statements, including the objected-to opinions about "torture" were then played for the jury, and the transcripts were admitted into evidence as well: ° Lori Smith's taped stated to the police was played for the jury. (33RT 9376-78, 9387 [see Exh. T-M, T-M-A and T-M-Bat 40CT 10086 et seq. for contents of interview]. In this statement Lori said that appellant "started torturing" the victim. (40CT 10116.) ° Eric Rubio at 7CT 1146-306told the police that appellant was "basically torturing" the victim. A tape recording of this statement wasplayedto the jury at 33RT 9400. (See Exh. O-A at CT 10233.) Respondentalso quotes a portion of the cross-examination ofLori Smith as to her own actions in which counsel asked if she considered what she had doneto be torture, and argues that the defense wasable to cross- 33 examine as to what she meant by torture. (RB, p. 163.) Trial counsel's attempts to defuse the prejudicial impact of the objectionable portions of her testimony through cross-examination neither forfeit the issue nor cure the harm. Asset forth in People v. Calio (1986) 42 Cal.3d 639, 643 "An attorney who submitsto the authority of an erroneous, adverseruling after making appropriate objections or motions, does not waive the error in the ruling by proceeding in accordance therewith and endeavoring to make the best of a bad situation for which he was not responsible." Asto the merits, respondent argues that the witnesses just "attempted to describe what they saw"in "specific language that they chose," and there "was no indication [that they] were asked for their opinion of what appellant did.” (RB, p. 161.) Whether a statementis inadmissible opinion testimony does not depend on whetheror not the victim is asked his opinion — rather the question is whether the statement made by the witness and the language used or chosenby the witness amounts to an improper opinion. For example, if a witness wereto testify that the defendant looked like he had premeditated his homicidal act, that would be improper opinion testimony, even if the witness chose the words, was describing what she saw, and was not asked her opinion as to premeditation. Respondent's arguments that the trial court properly 34 admitted the lay opinion testimony are thus unpersuasive.* C. The Improper Opinion Testimony Prejudiced Appellant. Respondent argues that any error should be deemed harmless becausethetrial court instructed the jury on the definition of torture, and also instructed the jury that "some testimony was presented for a limited purpose," and the jury is presumed to understand and follow the court's instructions. (RB, pp. 164-65.) Asto the limited purposeinstruction, it certainly cannot be considered as curative in this instance, since the instruction was not given prior to the admission ofthe tapes and transcripts and the instruction did not specify that any portion of those tapes were admitted for a limited purpose. Thus, even presumingthat the jury "followed"this instruction,it would not know thatit could not consider the codefendants' statements that appellant "tortured" as proofthat the torture special circumstance was true. (See 25CT 5924; 36RT 10291-02. [CALJIC No. 2.09: "Evidence Limited as to Purpose].) Nor can the fact that the trial court correctly defined the torture special circumstanceallegation cure the harm. The ‘ Respondent also maintains that the witnesses’ statements were "incredibly relevant and probative." Again, respondent's ipse dixit assertions are not helpful. (See previous footnote 3.) The witnesses could properly describe what they saw, but even if a lay opinion on an ultimate question is "incredibly relevant"it is still inadmissible. (Miron, 210 Cal.App.3d at 583.) 35 witnesses' statements did not misdefine torture — rather they improperly concluded and opined that "torture"(as later defined by the court) had occurred. The statements prejudiced appellant because the codefendants werein effect permitted to tell the jury that the torture special circumstance wastrue, even though their conclusions were based not on what they saw but on their presumptions as to appellant's intent. > Respondentalso argues the statements should be considered harmless because Lori Smith did not "intend" to give an opinion on the ultimate issue. (RB, p. 163.) However, as set out above, the witness's intent is not the standard for measuring either the error or the magnitude of prejudice. 36 V. THE PROSECUTORIAL ERRORIN SHOWING TO THE JURY ENLARGED PROJECTED PHOTOGRAPHSOF THE VICTIM'S BODY IN THE GRAVE VIOLATED APPELLANT'S FEDERAL CONSTITUTIONAL RIGHTS TO DUE PROCESSAND A FAIR TRIAL A. Appellant's Claim Was Preserved and There Was NoForfeiture of the Issue. Respondentfirst argues that the claim ofprosecutorial erroris "forfeited" because defense counsel did not object to the enlarged photographsofthe victim's body in the grave until after the prosecutor had (in violation ofthe court's order) projected them for the jury. (RB, pp. 164- 65.) However, thetrial court had ruled that no enlarged projections of photographs were to be shown to the jury unless the court had previously previewed the photographs. The prosecutor violated this order. (23RT 6210; see AOB,p. 208 & fn. 25.) It does not matter whether the prosecutor inadvertently or mistakenly violated the court's order. Bad faith is nota prerequisite to a claim of prosecutorial error. (People v. Hill 1998) 17 Cal.4th 800, 822-23 & fn. 1.) Violation of a court order regarding evidence is clearly prosecutorial error. (People v. Bell (1989) 49 Cal.3d 502, 532.) The prosecutor has a duty to ensure that the law is obeyed. (People v. Abbaszadeh (2003) 106 Cal.App.4th 642, 649.) Respondentnext argues that the claim is "forfeited" as to prosecutorial error because defense counsel "did not request an assignment 37 of misconduct[] when the evidence was presented and did not request that the jury be admonishedto disregard the alleged impropriety." (RB, p. 165.) Appellant disagrees. Appellant was surprised by the prosecutor's disregard of the court's order and objected immediately after the enlarged photographs were projected, during a recess occasioned by the jurors’ "highly emotional state" (as described by the prosecutor). (32RT 9123-24.) Atthat point the trial court overruled the objections. Consequently, any request by defense counsel for assignment of error and admonition to the jury to disregard would have beenfutile. (See e.g. In re KhonsavahnS. (1998) 67 Cal.App.4th 532, 536-37 [excusing failure to object where defense counsel was surprised]; People v. Hill, 17 Cal.4th at 820 [prosecutorial misconduct for appeal despite failure to object or request admonition where either would have been futile].) Such was the case here. Wherethe visceral impact of the magnified projection was a surprise and the impact could not have been cured. Respondent does acknowledgethat the merits of the claim are properly before this Court on the basis of appellant's subsequent motion for mistrial. B. The Prosecutor Violated a Court Order. First, respondentincorrectly states that the court "did not order" that "the prosecution was not able to project those exhibits in front of the jury." 38 (RB,p. 169.) In fact, the trial court stated clearly that the prosecutor could project only the photographsit had already reviewed and allowed (which did not include Exhibits 17 and 26) and that "a violation of that [] could be groundsfor a mistrial." (23RT 6210.) Respondentnext argues that after the prosecutor violated this order, the trial court denied appellant's mistrial motion because the prosecutor's actions were "not intentional,” and that the record does not indicate any bad intent on the part of the prosecutor. (RB, p. 169.) However, as set forth immediately above, bad intent is not a prerequisite to a claim of prosecutorial error because the injury to the defendant occurs regardless of whether the prosecutor acted inadvertently or intentionally. (People v. Hill, 17 Cal.4th at 822-23 & fn. 1.) Finally, respondent argues that the challenged exhibits were accurate and relevant, and thus admissible. (RB, p. 170.) This misses the point. Appellant's objection wasnot to the admissibility of the photographic exhibits per se, but to their display in projected images four-by-six feet large, rather than in an 8" by 12" size. (23RT 6207-11.) Similarly, off the mark is respondent's argumentthat after the photographs had been improperly projected on the giant screen, the trial court stated that it "would have admitted one ofthem." (RB, p. 171.) The trial court also found that the other was "cumulative." (41RT 11735.) Thus, at least one ofthe enlarged 39 photographs was improperly displayedto the jury even though thetrial court deemed it cumulative. Respondent does not address prejudice. Appellant submits that the prejudicial impact is dramatically established by the prosecutor's own actions in seeking a recess after showing the photographs because several of the jurors were in a "highly emotionalstate." (32RT 9101.) Thetrial court hadalso earlier described the enlarged projections as having a "huge" emotional impact. (23RT 6210-11.) The emotional impact was huge because the projections were larger than life-size, and thus madethereality underlying the photographs worsethan thereality itself. Appellant should have been judged on the evidence, not on the magnification of the evidence. / / 40 VI. UNNECESSARILY HARSH AND VISIBLE RESTRAINTS USED ON APPELLANT DURING TRIAL VIOLATED HIS SIXTH AND FOURTEENTH AMENDMENTRIGHTS TO A FAIR TRIAL AND DUE PROCESS, AND HIS EIGHTH AMENDMENT PROTECTION AGAINST CRUEL AND UNUSUAL PUNISHMENT Appellant does not argue that there was no showing of manifest need in support ofthetrial court's order to shackle him duringtrial; rather he contendsthat the use of a stun gun and visible shackles for nine consecutive hours which resulted in the infliction ofpain and scarring violated his federal constitutional rights to due process anda fair trial, and to a reliable sentencing. (Holbrook v. Flynn (1986) 475 U.S. 560; Johnsonv. Mississippi (1988) 486 U.S. 578, 584.) Wherethe use of shackles injures and pains the defendant, the restraint is not only excessive but prejudicial. (Rhoden vy. Rowland (9th Cir. 1993) 172 F.3d 633, 637.) This Court has recognized that shackles may affect the defendant's mental state during trial, and may also impair his ability to cooperate or communicate with counsel. (People v. Hill (1998) 17 Cal.4th 800, 846.; [physical shackling "inevitably tends to confuse and embarrass" the defendant's mental faculties].) Respondent arguesthat appellant's claim that the jury saw the restraints is "an attempt to mislead" this Court. (RB, p. 181.) However, the trial court admonished the jury not to considerrestraints. The courts have held that where such an admonition is given, "it is reasonable to infer that 4] the jury saw [the restraints]" as such advisements are "given only when shackles are visible." (People v. Miller (2009) 175 Cal.App.4th 1109, 1115, quoting People v. McDaniel (2008) 159 Cal-App.4th 736, 744.) 42 VII. THE TORTURE-MURDER SPECIAL CIRCUMSTANCE FINDING MUST BE VACATED BECAUSE THE EVIDENCE IS CONSTITUTIONALLY INSUFFICIENT IN VIOLATION OF APPELLANT'S FEDERAL CONSTITUTIONAL GUARANTEEOFDUE PROCESS The torture special circumstance requires proof that the murder was "intentional and involved the infliction of torture," which is further defined as the intentionalinfliction of cruel pain and suffering for the purpose of revenge, extortion, persuasion of for any sadistic purpose. (Section 190.2, subd.(a)(18); People v. Elliot (2005) 37 Cal.4th 453, 479; CALJIC No. 8.18.18.) There is no contention or evidence that appellant killed in order to extort, persuade or exact revenge; thus in orderto sustain the torture finding, the record must contain substantial evidence that appellant intentionally inflicted cruel pain and suffering for some other (unnamed and undefined) "sadistic purpose." The evidenceattrial, and the prosecutor's argumentat trial, was that appellant wanted to kill the victim because she "knew too much"or because they were annoyedby ortired of her. (26RT 7039, 27RT 2589, 28RT 7927; 28RT 7851; 37RT 10334, 10352.) Respondentalso refers to testimony by Lori Smith that appellant placed a garbage bag overthe victim's head not to suffocate her but to muffle her screamsofpain, thus showing an intent to torture beyondthe intentto kill. (RB,p. 187, citing 283RT 7918 ["she was crying and screaming so we put a bag over her head"].) However, Lori herself contradicted this testimony in 43 her statement to the police in which — in which she said appellant put the bags around her head and suffocated her. (2CT 152.) Amy Stephens testified that she saw appellant put the bags on the victim's head and turned away; what she heard was a blow. She did not mention any screaming, or that the bags were put on to muffle screams. (27RT 7397-99.) Eric Rubio testified that the garbage bags were meantto suffocate the victim so she would die more quickly. (30RT 8427.) Respondent's argumentis thus based on the statement of one out ofthree eyewitnesses, a statement not corroborated by anyoneor anything else, and contradicted by the other witnesses and by Lori herself in her statement to the police. In arguing the evidenceis sufficient to support appellant's supposed intent to inflict cruel pain and suffering for any sadistic purpose, respondent cites as the "most notable” evidence of appellant's "sadistic purpose" his "decision to pour alcohol over[the victim's] deeply cut wrists." (RB,p. 187.) The argumentfails in the first place because it misstates the testimony: the victim's wrists were not "deeply cut.” To the contrary, the forensic pathologist testified that the wrist cuts were "superficial." (See RT 9221.) Respondent also argues that evidence that appellant hit the victim in her hands "could only have been for the purpose of causing pain since such blows would not have caused her death." (RB, p. 198.) However, the 44 expert testimony wasthat the bruises on the hands werenotas significant as the other bruises, and that no hands were broken. (33RT 9222, 9226.) Moreover, this ignores the reason whyappellant washitting the victim on her hands: he wastrying to get her to kill herself by slashing her own wrists. Thus the hitting ofher hands wasan integral part of the homicidal act, i.e., a means ofkilling, and not an act separate from the homicide intended by appellant to inflict cruel pain and suffering for a sadistic purpose. Whateversadistic purpose means (see Arg. VIII, immediately below) it has to mean something other than or beyond the homicidal act. As to the pouring of alcohol over the wounds,although it might have caused _ pain to the victim, there is no evidence that appellant poured alcohol over the victim with a sadistic purpose, rather than to diminish the pain.® Appellant begins with this point because respondentconsidersit the "most notable," and also because it shows the speculative nature ofthe “evidence” respondent claims showsappellant's intent to inflict "cruel pain and suffering for any sadistic purpose.” (Pen. Code, § 190.2, subd.(a)(18).) Nonetheless, respondent argues that appellant's tortuous sadistic ° Respondentrelies on Eric R.'s self-serving testimony that he told appellant to stop because he was "going too far" as supposed evidence of appellant's intent. (RB, 188.) The testimony may tend to show co-defendant Eric's desire to extricate himself from the act (as Eric most likely meantit to) but Eric's reaction does not demonstrate appellant's intent to torture. 45 intent was shown by testimony that he ordered the victim to kill herself by slashing her wrists, asserting that this "demonstrated a sadism that went above and beyondhis desireto kill her." (RB, pp. 186-87.) Beyond asserting this as an ipse dixit, respondent doesnot explain how an attempt to facilitate a suicide amounts to an intentional infliction of cruel pain and suffering for a sadistic purpose. Similarly, respondent's only explanation for the assertion that ordering/inviting the others to help kill the victim (as indeed Amy and Lori already had done before appellant's involvement) showed a torturous intent is that this sent a message that "the entire group waskilling her." (RB, p. 187.) Respondent's arguments gloss over the elements ofthe special circumstance, which requires showing notjust a "tortuous intent" as "demonstrated" by the defendant's words or messages. The prosecution must show that the cruel infliction ofpain and suffering was for a tortuous intent. In any case, there is no evidence that appellant's desire that Amy and Lori share responsibility for the homicidalact (as they already did since they initiated it) showed an intent to inflict cruel pain and suffering | for a sadistic purpose. If anything, the latter statements showsa desire that Amy and Lori rather than he inflict pain and suffering, for a purpose related to his own interests rather than for a sadistic purpose. Respondent's arguments that appellant was "angry" or "mad" 46 during the incident showeda tortuous intent are particularly feeble. Intentional voluntary manslaughter (by definition in heat-of-passion manslaughter) is often committed by an angry defendant, but that anger does not transform manslaughter into torture or even tend to show a tortuous intent. Indeed, anger would tend to negate an intent to inflict torture for a sadistic intent, as sadism implies an act not in anger but for pleasure orgratification.inally, respondent argues that appellant "demonstrated his sadistic intent to inflict extreme pain"by telling the victim she was going to die anyway. (RB, p. 188.) Respondent does not explain how a statement amounts to an element of torture. Respondent arguesthat appellant's reliance on People v. Mungia (2008) 44 Cal.4th 1101 is misplaced becausethat case "distinguishable." (RB, p. 189.) According to respondent, the "savage"injuries inflicted in Mungia did not suggest an attempt to torture apart from theintent to kill as there wasno evidence the defendant in Mungia was angry or had a motive to inflict pain in addition to that of death. The samecan besaid ofthis case, however. The evidence of the co-defendants was that appellant (and the others) plannedto kill the victim because she knew too much. Respondentsuggests that appellant's "control" over the victim showed a "level of control and sadism [that] went beyond the killing" described in Mungia. (RB,p. 189.) 47 Appellant contends that respondent has added an element(that of control) to the definition of torture that does not exist in the statute or the case law. The bottom line is that the evidence in this case does not show that appellant deliberately inflicted nonfatal woundsor deliberately exposedthe victim to prolonged suffering, as does the evidencein cases upholding the torture special circumstance finding. (See Mungia, 44 Cal.4th at 1137-38.) In particular there is no evidence that appellant was pleasured or gratified by his acts. A sadistic purpose require at least that. 48 VIL. THE TORTURE SPECIAL CIRCUMSTANCE FINDING MUST BE VACATED BECAUSE THE TORTURE SPECIAL CIRCUMSTANCEIS INSUFFICIENTLY NARROW IN VIOLATION OF APPELLANT'S FEDERAL CONSTITUTIONAL RIGHTS UNDER THE EIGHTH AMENDMENTPROTECTION AGAINST CRUEL AND UNUSUAL PUNISHMENT AND THE FOURTEENTH AMENDMENT GUARANTEE OF DUE PROCESS Appellant contends that the torture special circumstancefails to perform the constitutionally mandated narrowing function. (Furmanv. Georgia (1972) 408 U.S. 238; Godfrey v. Georgia (1980) 446 U.S. 520, 528.) The special circumstanceis defined as an intentional murder intendedto inflict extreme cruel physical pain and suffering upon a person for revenge, extortion, persuasion, "or any sadistic purpose." Thelatter phrase "any sadistic purpose" renders the special circumstance (and jury instructions based on it) unconstitutionally vague and overbroad, establishing a catch-all category into which virtually all murders could fall.’ Appellant acknowledgesthat this Court rejected a similar argument in People v. Raley (1992) 2 Cal.4th 870. (See AOB, p. 222.) Raley observed that there was no legal definition of the term "any sadistic purpose" that could provide guidance to the jury and the constitutional y Indeed, this vagueness and broadness is demonstrated by respondent's argumentin response to the previous claim in which he argues that evidence that appellant was angry, that his statements to his sister and girlfriend to finish the victim off, and the facts that he encouraged the victim to kill herself, and muffled her screams with a plastic bagall indicated his infliction of cruel pain and suffering with a sadistic purpose. 49 narrowing function. Raley referred to various dictionary definitions of "sadistic" all of which related to sexual pleasure derived from pain: Raley involved a sexual assault, and that was the context in which this Court found the phrase constitutional. In this case, however, there was no evidence that appellant acted with any sexual intent, or in revenge, for extortion or persuasion. With no guideline as to the meaning ofsadistic outside the sexual — context, on what facts could the jury rely to determine if appellant acted with "any sadistic purpose"? Indeed, how can this Court make the determination in this case, or any other case not involving sexual gratification? The jury instruction given in this case — requiring an undefined element which wasleft undefined — was thus inadequate to perform the constitutionally-required narrowing function. Eventhe prosecutor was hard-pressed to marshall evidence in support of appellant's supposed sadistic intent, contenting himselfwith saying that "of course" appellant killed "for a sadistic purpose." (37RT 10342.) "Well, we could say revenge or other stuff, I don't know whatis revenge if he thinksit's enough, because he doesn't like her, that's enough for revenge. Persuasion. There was someevidencethat he wastrying to persuadehernotto tell on him forall those gas and go . . . . and what not. 50 She knew too much. ...so maybe he wastrying to persuadeher, but clearly sadistic." (37RT 10342-43.) Appellant does not believe that a homicide based on not liking someone amounts to "revenge"sufficient to satisfy the sadistic purpose ofthe torture special circumstance. And the prosecutor is wrong that there was someevidence appellant wastrying to "persuadehernotto tell." The evidence was that she would haveto be killed because she "knew too much," but not that she would be tortured to persuadehernot to tell. The prosecutor's arguments are so broad and vague as to fit any motiveto kill into the realm of sadistic purpose, thus supplying graphic proofofthe void-for-vagueness constitutional defect ofthe torture murder special circumstance. / / 51 IX. IMPOSITION OF THE DEATH PENALTYIN THIS CASE IS EXCESSIVE IN VIOLATION OF THE EIGHTH AMENDMENT PROTECTION AGAINST CRUEL AND UNUSUAL PUNISHMENTIN THAT APPELLANT'S VICTIMIZATIONBY HIS FATHER, INCLUDING REPETITIVE RAPES OVER A THREE-YEAR PERIOD WHEN APPELLANT WAS TWOTO FIVE YEARS OLD, RESULTED IN A "FIXED" BRAIN CHEMISTRY RENDERING HIM COMPARATIVELY UNABLE TO CONTROLHIS BEHAVIOR AND RESPOND APPROPRIATELY TO HIS CIRCUMSTANCES AND OTHER PEOPLE (AOB,pp. 225-30; RB, pp. 191-197.) Appellant maintains that a death sentence imposed on a boy 20 years old at the time ofthe crime, where that boy was himself the victim of repeated brutal biweekly anal rapes for three years when he wasat the most tender and vulnerable ages of twoto five, and that appalling sexual abuse resulted in permanent "fixed" brain chemistry that impairedhis ability to control his emotions and behavior, is excessive under the Eighth Amendment as in Roper v. Simmons (2005) 543 U.S. 551 and Atkinsv. Virginia (2002) 536 U.S. 304. Respondent argues that the decision in Roper v. Simmons, 543 U.S. at 571 "is immaterial” because appellant was 20 years old at the time ofthe crime. (RB, p. 192.) Respondent misses the point. Appellant does not claim that his death sentence is unconstitutional because he was underthe age of 18 at the time ofthe crime. 52 Rather, appellant maintains that appellant's death sentenceis excessive under the rationale expressed in both Atkins v. Virginia (2002) 536 U.S.304, 313-16 [execution ofmentally retarded offenders prohibited by the Eighth Amendmentbecause such offenders are less culpable due to their disability] and Roper v. Simmons (2005) 543 U.S. 551, 568-73 [juveniles' susceptibility to immature and irresponsible behavior renders them not as morally reprehensible as adults and their comparative lack of control gives them a greater claim to be forgiven for failing to escape negative influences]. Roper v. Simmonsreiterates that the death penalty is to be confined to offenders whose extremeculpability make them "the most deserving of execution." (543 U.S. at 553.) Appellant is not the "most deserving of execution." As in Atkins and Roper v. Simmons, the death penalty is excessive punishment because appellant's culpability is substantially diminished by the horrific sexual abuse and neglect he suffered as a small child, which resulted in a fixed brain chemistry characterized by an impaired ability to control his emotions and behavior, which in turn gives him a greater claim to be forgiven for failing to escape the negative influences he suffered. (Roper v. Simmons, 534 USS. at 553; Atkins, 536 U.S.at 319.) Respondentargues that appellant presented insufficient evidence to support his claim that he was unable to control his behavior. (RB,p. 194.) Respondent cites testimony (1) by Dr. Washington that appellant 53 knew the difference between right and wrong, and had no major mental disorder or organic brain damage; and (2) by Dr. Shale that appellant did not suffer from depression, cognitive disabilities, or brain trauma. (RB, pp. 194-96.). However, testimony on the particular claim here at issue was undisputed: that appellant wasraised as a "feral child,” and that as a very small child he was repeatedly brutally raped by his father over a three-year period; and that even though a traumatized adult may "get over" such abuse, a chronically traumatized childis different, because the chemical changes caused by his abuse occurred during the critical developmental period, so that his brain chemistry became "fixed." (47RT 13315-21.) Respondentpoints out in a footnote that appellant "only remembered one incident ofbeing sodomized byhis father," when hetestified at the penalty phase. (RB,p. 192, fn. 32.) That appellant may have blocked out his horrifying memoriesis hardly the point. Appellant's failure to rememberthe details of being anally raped by his father every two weeks for three years from the ages oftwoto five, while simultaneously being physically and emotionally neglected and abandoned by his mother, in no way refutes the evidence upon which appellantrelies or his claim before this Court. Regardless of the vividness of appellant's memory of the abuse he suffered, that abuse changed the physiology and chemistry ofthat part of 54 his developing brain that controls emotions andhis ability to control and modulate his emotions:the inability of his medulla to stop production of neurotransmitters was responsible for his irrational and aggressive behavior. (45RT 12765-66, 12771-78; 47RT 13293.) Relying on People v. Poggi (1988) 45 Cal.3d 306, 348, respondent contends that even if appellant did have brain damage, his death sentence would notviolate the Eighth Amendment.’ Poggi predates the United States Supreme Court opinions in Atkins v. Virginia and Roper v. Simmons upon whichappellant's argumentrelies, and is thus not dispositive. Respondentpoints out that Dr. Woods,although hetestified that appellant's mental disorder impaired his ability to conform his behaviorto the law, did not testify that appellant was not legally responsible for his actions. (RB, p. 194.) Dr. Woods did notsotestify; if he had, it would have been evidence of insanity. But Dr. Woodsis a psychiatrist specializing in trauma issues, not an expert in Eighth Amendmentjurisprudence and the recent cases ofAtkins and Roper v. Simmons. The fact that Dr. Woods did nottestify that appellant was legally insane does not refute appellant's argumenthere. 8 Poggi held that the defendant's death sentence was not disproportionate to his culpability despite his mental illness at the time of the crime, given that the defense psychiatrist had testified that his mental illness was not of such a nature and degree as to negate his criminal culpability. (/bid.) 55 Respondent claims that appellant's citation to Kennedy v. Louisiana (2008) 554 U.S. 407 is "confusing" since the question in that case was whether the death penalty could be imposed for rape of a 12-year-old child. (RB,p. 192,fn. 32.) Again, respondent has missed the point although it was expressly made in Appellant's OpeningBrief. The point bears repeating: Kennedy v. Louisiana is informative on the claim raised here because it recognizes that even a single rape of a 12- year-old child "has a permanent psychological, emotional, and sometimes physical impact on the child." (/d. at 435.) The dissent (which would have upheld the death penalty for a single act ofrape against a child) emphasized that sexual abuseis "grossly intrusive in the lives of children and is harmful to their normal psychological, emotional and sexual development in ways which no just or humane society can tolerate." (Kennedy, 554 U.S. at 468 [Alito, J., dissenting].) Weas a society should not have tolerated the abuse and neglect suffered by appellant as a child, but we did. We asa society should not now tolerate putting him to death for conduct that can be directly attributable to the traumatic sexual abuse he suffered as child. 56 X. APPELLANT'S DEATH SENTENCE MUST BE REVERSED BECAUSE THE TRIAL COURT ERRONEOUSLY EXCUSED PROSPECTIVE JUROR SWIFT BASED ONHER VIEWS ON THE DEATH PENATLY,IN VIOLATION OF APPELLANT'S RIGHTS UNDER THEFIFTH, SIXTH, EIGHTH AND FOURTEENTH AMENDMENTS A. Respondent's Forfeiture Argument Is Based On an Inaccurate Reporting of the Record Facts. Respondent arguesfirst that appellant has forfeited this claim because "there is no indication in the record that appellant objected to the excusal of Ms. Swift for cause." (RB, pp. 199-200.) Respondent suggests. that "defense counsel's agreementto stipulate to her removal could be implied from her responses to her questionnaire." (RB, p. 203.) Respondent's argumentis apparently based on a problem with the computerized record. (See Request to Include 30 Missing Pages in the Computer-Readable Copies of Volume19, filed simultaneously with this brief.) Asset out in the Opening Brief, whenthetrial court statedits intention to excuse Ms. Swift, defense counsel expressly refused to stipulate (even though he hadstipulated to other excusals) to her excusal, and argued that she said she could try to follow the law and set aside her scruples about the death penalty. (19RT 5232.) "THE COURT: I have another one I was looking at, counsel. That's Ms.Swift... . Let's start with Ms. Swift. [DEFENSE COUNSEL]: The reason I would notstipulate is 57 because of question 110, asks if she could set aside and follow the law and she answers, yes, I would try." (19RT 5232; emphasis provided.) Defense counselreiterated that she should not be excused because she "left the door open that she c[ould] do her duty as a juror." (19RT 5233.). The claim is not forfeited. Defense counsel explicitly refused to stipulate to Ms. Swift's excusal for cause andrepeatedly argued that she could be a fair and impartial juror. (See People v. Scott (1978) 21 Cal.3d 284, 290 [an objection is sufficientif it fairly apprises the trial court ofthe issue it is being called upon to decide; despite inadequate phrasing, an objection is deemed preserved if the record showsthat the court understood the issue presented].)’ Respondent argues at some length as to why defense counsel "stipulated to Swift's excusal as a potential juror in this case." (RB,p. 203.) However, the record showsthat defense counsel did notstipulate to Swift's excusal but explicitly refused to stipulate and argued to the court why she should not be excused for cause. Respondent's forfeiture argument is based on an error in the computer-readable record ofVolume 19 which is missing the last 30 pages. (See Request to Include Missing 30 Pages in Computer- 9 Moreover, a lack of objection does not preclude the defendant from raising on appeal the deprivation ofa fundamental constitutionalright. (People v. Vera (1997) 15 Cal.4th 269, 276-77.) 58 Readable Copy of Record, filed simultaneously with this brief.) B. Respondent Speculates That the Prospective Juror Could Have Been Excused for Hardship. Respondentalso argues that since Ms. Swift complained ofhardship in her questionnaire, she could have been excused onthat basis. (RB,p. 200.) But surely the pointis that she was not excused for hardship. Wrongful excusal of a fair and impartial juror for cause is not assessed like a question of evidence. Respondent's argumentis speculative. Ms. Swift wasnot excused for hardship and was improperly excusedas biased. The question before this Court is whether thetrial court erred in excusing her and not whetherthetrial court might have properly excused herfor hardship hadthat claim been made. C. Prospective Juror Swift Was Wrongfully Excluded as a Juror. Respondentnotes that a prospective juror can be disqualified on the basis of her responses on the jury questionnaire alone"if it is clear from the answersthat he or she is unwilling to temporarily set aside his or her own beliefs and follow the law." (RB, pp. 200-201, citing Wainwright v. Witt (1985) 469 U.S. 412, 424, People v. McKinnon (2011) 52 Cal 4th 610, 646, and People v. Avila (2006) 38 Cal 4th 491, 531.) Appellant does not disagree with the general proposition but does 59 contend that Ms. Swift's responses on the questionnaire did not makeit clear that she was unwilling to follow the law. Respondent provides selective quotations from the responses in Ms. Swift's questionnairein his attempt to shoe horn her into such a framework but ignores her questionnaire responses (1) that she was willing to deliberate with other jurors about the evidence; (2) that although she would be "uncomfortable" with jury instructions that might differ from her own beliefs, she would be able to set aside any opinions she might have had beforethetrial and could make a decision based solely on the evidence presented; (3) that she denied having any biases or prejudices or preconceived ideas that might affect her judgmentin the case; (4) that she agreed to limit her decision as to death or life without possibility ofparole to the specific factors on which she wouldbe instructed; (5) that she answered "Yes" and "I will try" to whether she could set aside her personal feelings about the death penalty and follow the law regardless ofwhether she agreed or not; (6) that although she did state that she would alwaysvote for life, she also answered "yes" when asked if she could change her vote if she became honestly convinced she was wrong; and (7) that despite that she felt uncomfortable judging the case as a juror, and complained about pain in her wrist and childcare, she reiterated that she would serveas a juror, although given a choice, she would "rather not.” (57 CT 15013-14, 15016; 60 5021-23.) Thus, under the case law cited by respondentit cannot be said that "it is clear from the answers that [prospective juror Swift was] unwilling to temporarily set aside [] her own beliefs and follow the law." Consequently it was error to excuse Ms. Swift on the basis of her questionnaire alone, and the constitutional error requires reversal of appellant's death sentence. D. Appellant's Death Sentence Must Be Reversed. Asset out in the Opening Brief, wrongful dismissal of a prospective juror in violation of Witherspoon requires reversal of appellant's sentence of death. (See AOB,pp. 241-42.) Respondent argues only the false "forfeiture" of this claim, and (incorrectly) that the prospective juror could have been excused on her questionnaire answersalone, and does not address the standard for reversal. Appellant contendsthat his failure to do so is a concession that Witherspoon error requires reversal of the death sentence. (Compare People v. Adams (1983) 143 Cal.App.3d 970, 992 [prosecution's failure to address prejudice is deemed a concession that if error occurred, it was prejudicial].) / / 61 XI. THE TRIAL JUDGE COMMITTED JUDICIAL MISCONDUCT AND THEN COMPOUNDED THE ERROR BY HOLDING A HEARING INTO HIS OWN CONDUCT, REFUSING TO INQUIRE OF THE JURORS, AND REFUSING THE DEFENSE REQUEST FOR A HEARING BEFORE AN IMPARTIAL JUDGE, THEREBY VIOLATING APPELLANT'S SIXTH AND FOURTEENTH AMENDMENT RIGHTSTO A FAIR TRIAL AND DUE PROCESS AND HIS EIGHTH AMENDMENT GUARANTEEOF A RELIABLE SENTENCING A. Judicial Misconduct Can Be Shown Through Wordless Conduct, Including Gestures and Expressions. Respondentarguesfirst that no judicial misconduct occurred because the judge made no "commentsthat discredited the defense," and becausethe allegations consist "entirely of supposed facial expressions" and "body movements,” conduct which "was susceptible to a multitude of interpretation.” (RB, p. 219.) Respondent cites no authority for his implied assertion that judicial misconduct occurs only with comments and not with gestures or expressions. Appellant, on the other hand, provided specific authority holding that facial expressions, gestures and other wordless conduct can constitute improperjudicial bias. (See AOB,pp. 251-53 and cases cited therein, including People v. Harmon (1992) 7 Cal.App.4th 845, People v. Franklin (1976) 56 Cal.App.3d 18, and People v. Walker (1957) 150 Cal.App.2d 594.) / / 62 B. The Trial Judge's Refusal to Permit an Impartial Hearing and to Inquire of the Jurors Violated Appellant's Federal Due Process Rights. Respondent argues that no evidentiary hearing was required on the allegations ofjudicial misconduct, and that an impartial adjudicator was not required to determine the matter. Appellant addresses each in turn. 1. An impartial adjudicator is fundamental to a fair hearing. Respondent complains that appellant cites no authority "that mandates that a judge have anotherjudgesit in his or her place when the issue of impartiality is still contested." (RB, 226.) However, Appellant's Opening Brief cited Haas v. County ofSan Bernadino (2002 27 Cal.4th 1017, 1025, for the proposition that when due process requires a hearing, the adjudicator mustbe impartial." '° Moreover, both appellant and respondentcite Bracy v. Gramley (1977) 520 U.S. 899 which holds that due process requiresa fair trial by a fair tribunal before a judge with no actual or interest in the outcome. (See AOB,pp. 253-54, RB, p. 218.) An adjudicator whosits on the question of his owncredibility is, by definition, not impartial and hasan interest in the outcome.| 0 Appellant also cited Code of Civil Procedure, section 170.3, subd. (5) which provides that a judge "whorefuses to recuse himself [] shall not pass uponhis or her own disqualification,” and that the question "shall be heard and determined by another judge." (AOB,p. 253.) "} See also Brown v. City ofLos Angeles (2002) 102 Cal.App.4th 155, 178, fn. 13, discussed in AOBat pp. 253-54, fn. 14. 63 Respondent addresses the procedural aspects of recusal motions under Code of Civil Procedure, section 170.3. (RB, p. 226.) However, the claim before this Court is not recusal but judicial misconduct andthetrial court's refusal to permit a hearing before another judge as to the disputed facts regarding the judge's own misconduct. Appellant considers respondent's argumentpro forma only, for certainly he cannot be arguing that due process permitsa trial judge to impartially determine facts involving his own credibility, and dismissing facts that he had no reason to doubt on the basis, at least in part, on his own statements and descriptions of his conduct and intentions, which is what happenedhere. 2. A hearing is required, where, as here, there was substantial evidence refuting the judge's own account of the challenged conduct and there were discrepancies to be resolved. Respondentcites People v. Chatman (2006) 38 Cal.4th 344, 364 for the proposition that an evidentiary hearing wasn't requiredin this case. (RB, p. 227.) The decision requires closer scrutiny. In the first place, the motions to disqualify the trial judge in Chatman(thefirst for bias because the judge's daughter had been a robbery victim year earlier, and the second because the victim's father and the judge had a discussion after the conclusion of the penalty phase trial) were heard by different judges — and 64 not like here, the same judge whose misconduct was questioned. (/d.at 360.) Chatman involved conductthat occurred after the penalty phase verdict, and thus, as pointed out by this Court, "[n]o reasonable person would doubt that a judge could remain impartial merely becauseofa brief encounter that the murdervictim's father initiated after the penalty verdict." (Id. at 365.) Here, the conduct occurred in the middle of mitigating testimony by an important defense expert. Moreover, the misconduct alleged involved the judge personally and not an encounterinitiated by another. Reasonable people in these circumstances could and did doubt that the judge was impartial. The procedure followed in Chatman wascorrect: the challenged judge did not consider his own credibility. Unfortunately, that procedure did not occur in this case. Consequently, appellant maintainsthatthetrial judge's refusal to permit a hearing by an impartial adjudicator (even though he hadinitially ruled that another judge should hear the motion), and the trial judge's decision to makea credibility determination as to his own credibility, violated appellant's federal due process right. (See AOB,pp. 253-56.) Although respondent tries to align the facts of this case with those in Chatman, in which this Court held that no evidentiary hearing was 65 required, a closer look reveals that Chatmanis inapposite. In Chatman, the defense claimed judicial misconduct because(after the penalty verdict) the trial judge had a conversation with the victim's father (who hadtestified) in whichthe judge said he "knew how hardit was for [the victim's father]." This allegation was supported by a declaration from a man whohad been in the courtroom whichstated that the man could not recall whether the victim's father or the judge spokefirst, and did not "remember what was said verbatim or what else was said" in the 40-second encounter. On the other hand, the judge stated that the victim's father had "accosted him" to apologize for his wife's conduct (she had lost her composure during her testimony; for his part, the judge acknowledgedthe father's concern, but cut the conversation short. (/d. at 361-62.) This Court rejected the defense contention that the judge who heard the matter (who wasnotthe trial judge whose conduct wasat issue) needed to conduct an evidentiary hearing to "resolve discrepancies" because there were no discrepancies. Rather, the two accounts were "not inconsistent," in that Aaron's observations were fragmentary but "contained nothing to cast doubt" on the judge's more complete account. (/d. at 361-62.) Here by contrast, the evidence casting doubt onthetrial judge's account was ample. Even the judge made contradictory statements,first 66 saying he "certainly wouldn't know"ifhe had made the gestures the others saw as he wasn't "looking in a mirror." (47RT 13346.) The next day, the judge acknowledgedthat he had made some "normal"facial expressions, such as pursing his lips to mask a reaction, and furrowing his brows. However, witness Masterson, investigator Wooden, and attorneys Jen and Swartz all saw him rolling his eyes, showing disbelief or a negative expression, and Swartz testified that he saw the jurors lookingat the judge while he made such grimaces. The prosecutor, and the judge's bailiff (who testified at the judge's suggestion) did nottestify that the judge did not makesuch gestures, only that they did not notice them. The evidence showeda clear factual dispute -- with three witnesses having seen negative facial expressions, two not noticing anything unusual, and the judge stating he had just acted normally — that could only be resolved by an evidentiary hearing. Here, the judge whose misconduct wasat issue simply decided to believe himself, without holding a hearing by an impartial adjudicator. (48RT 13652-54.) In other words,in this case, the same judge whose conduct was required because there was no threshold showing that the judge made gestures outside of his "normal" range of expressions even though (1) witnesseshadtestified that he did, (and the judge stated he had no basis for discrediting their testimony); and (2) only the judge himself had stated that 67 whatever he did was "normal" for him. The judge, sitting in judgment on himself, finessed the matter by holding that despite the credible testimony regarding his in-court expressions of disbelief, these expressions were, in his own opinion ofhimself, "normal" for him. The reasoning is questionable at best. In the first place, the judge did not see his own expressions. All ofthose whodid see his expressions described them the same:he wasrolling his eyes and expressing disbelief or a negative reaction. Secondly, the judge's intentions are not at issue: the judge distinguished his own actions from the cases ofprejudicial judicial misconduct, on the basis that they involved "clear signals" from the judge rather than his own "normal body language." (48RT 13653.) Appellant contendsthat as with prosecutorial misconductorerror, the crux of the matter is not whether the judge acted intentionally, since the jury would be affected whether intentional or inadvertent. (People v. Hill, 17 Cal.4th at 822-23 & fn. 1.) Of course, it was only the judge himselfwho claimedthat his gestures were "normal," and the claim — when viewedagainstthe array of witnesses whotestified under oath — is difficult to accept. Someofthe witnesses had sat through many days oftestimony, including testimony by defense witnesses and experts, with the judge. If the judge had been making | only his "normal" gestures during Dr. Woods' testimony, then he must have 68 madesuch normalgestures other times during the weeksoftestimony by prosecution and defense witnesses. Why would four people suddenly all observe the same negative expressions by the judge only at this time? Attorney Swartz and witness Masterson were not in the courtroom throughoutthe trial, but Mr. Jens was presentat all times, and Mr. Wooden, as the designated investigator had observed the trial and wastaking notes. (49RT 13572.) In conclusion, the unexamined judicial misconduct deprived appellant of a fair trial and requires reversal. C. The Unadjudicated Misconduct Requires Reversal of Appellant's Death Sentence. Respondent argues that the prejudicial impact of any misconduct was "cured" by the "curative instructions"the trial court gave. (RB,p. 227.) Appellant foresaw this assertion and set out in Appellant's Opening Brief the wealth of case law rejecting the notion that an admonition to disregard is sufficient to eradicate the prejudicial impact. (See AOB,p. 259 and casescited therein.) As the United States Supreme Court observed years ago, "The naive assumption that prejudicial effects can be overcome by instructionsto the jury . . . all practicing lawyers know to be unmitigated fiction." (Krulewitch v. United States (1949) 336 U.S. 440, 453.) / / 69 Respondentalso suggests that any misconduct was harmless because two other experts, Dr. Myla Young and Julie Krieglertestified, as did Dr. Woodsas to brain development and how appellant's background could have affected his decision making process. (RB, p. 228.) If respondentis correct in asserting that all three expert witnessestestified to the "same" facts and opinions, then the judge's facial expressions during Dr. Woods' testimony were more andnotless prejudicial, i.e., jurors observing the judge while Dr. Woods wastestifying would conclude that the judge had a similar reaction or opinion to the testimony ofthe other experts on the same subject matter. Appellant contendsthat the error was structural and defies harmless error analysis. Respondent does not address this argument. Appellant refers the Court to his argument in the Opening Brief. (AOB, pp. 260-61.) D. The Trial Court's Misconduct and Ruling Violated Appellant's Eighth Amendment Right To a Reliable Sentencing Determination. . Respondent argues that appellant's Eighth Amendmentreliability claim mustfail because the assertion by appellant, citing to the testimony of attorney Russell Swartz, "that the jurors observed the judge on several occasions while he was grimacing, lacks any substantiation." (RB, p. 228.) In the first place, appellant's Eighth Amendmentclaim doesnotcite nor doesit rely wholly on testimony by attorney Russell Swartz. (See AOB, pp. 261-62.) Rather, the claim is that "because the facts show thatthetrial judge did make negative facial gestures during testimony bya critical 70 mitigation witness, and the jurors were never examined as to what effect seeing such gestures had on then, and the misconduct alleged was never adjudicated by an impartialtribunal, the resulting death sentenceis not as reliable as required by the Eighth Amendment." (AOB,p. 262.) Appellant did summarize Swartz’ testimonyearlier in his argument. Appellant reiterates that this testimony supports the claim ofjudicial misconduct. Swartz' testimony that the jurors looked at the judge on several occasions when Swartz himself observed the judge making dismissive gestures does indeed amountto evidencethat at least some of the jurors observed the judge's grimaces. If the judge was grimacing, and jurors lookedat the judge, it can certainly be inferred that the jurors observedthe judge grimacing.'” It may be circumstantial evidence, but that is sufficient: there is no requirement that direct evidence (which could only come from the jurors) be provided. Respondent highlights testimony by Swartz that he could not "interpret" what it meant when the jurors looked at the judge. (RB,p. 228.) Asa lawyer, Swartz knew that he could testify only to his observations and not the thought processes of others. However, Swartz also that he himself felt that the jurors might be influenced by the judge's expressions which 2 Respondent points out that jurors are presumed to follow instructions. Appellant maintains that we can also infer that ifjurors look at the judge, they see the judge. 71 was why he broughtthe matter to the attention of counsel. (48RT 13566.) Respondent concludes that "contrary to appellant's assertions here," there is "absolutely no evidencethat the jurors noticed or placed any emphasis on the alleged conduct by the judge during the testimony ofDr. Woods"and thus no indication "the jurors based their sentence finding on the judge's alleged mannerisms." (RB, pp. 229-29.) Respondent mischaracterizes appellant's argument:as stated above, appellant's Eighth Amendmentclaim is based on the facts showing thatthetrial judge did make negative gestures during critical mitigation testimony, and that the jurors were never examined as to what effect seeing those gestures had on them, andthat the misconduct alleged was never adjudicated by an impartial tribunal. 72 Withoutcitation to any authority, or any discussion of the authorities provided by appellant, respondent once again makesanipse dixit argument that unless appellant can show (through direct evidence noless) that the jurors were influenced to sentence appellant to death by the judge's facial expressions, then there is no Eighth Amendmentclaim ofunreliability. Appellant disagrees. In any case, as set out immediately above, the record does contain circumstantial evidence that the jurors noticed the judge's negative gestures during Dr. Woods' testimony. Moreover, the standard for reliability of sentencing under Eighth Amendmentdoesnot require appellant to prove that the jurors based their death penalty decision on the fact that the judge grimaced during mitigation testimony. Because ofthe fundamental respect for humanity underlying the Eighth Amendment's prohibition against cruel and unusual punishmentgivesrise to a special need for reliability in the determination that death is the appropriate punishment. (Johnson v. Mississippi (1988) 486 U.S. 578, 584; Mongev. California (1998) 524 U.S. 721, 732 [High Court recognizes an "acute need for reliability in capital sentencing proceedings"].) Thus, any error creating a risk that the jury verdict of death is not reliable raises an Eighth Amendmentquestion. 73 Appellant contends that appellant's death sentence does not meet this standard of "acute need forreliability in capital sentencing proceedings" because, as the facts do show (1) the judge made negative facial gestures during testimony bya critical mitigation witness, (2) at least some of the jurors looked at the judge during this time, thus supporting an inference that they saw the negative dismissive gestures, (3) the trial judge refused to allow examination ofthe jurors (even though he hadinitially proposed doing exactly that) so appellant was precluded from obtaining information as to the effect that seeing such gestures had on them, and (4) the misconduct was not adjudicated by an impartial tribunal (even though the judgeinitially suggested that would be appropriate). Appellant contends that these four factors render the sentence of death unreliable becauseit cannot be determined that the jurors were not influenced by the judge's actions. Consequently, this Court must vacate the death sentence as unreliable under the Eighth Amendment. 74 XI. THE TRIAL COURT VIOLATED APPELLANT'S FIFTH, SIXTH, EIGHTH AND FOURTEENTH AMENDMENT RIGHTS TO DUE PROCESS, A FAIR AND IMPARTIAL JURY, AND A RELIABLE SENTENCING DETERMINATION BY FAILING TO EXCUSE JUROR NUMBER11 FOR MISCONDUCT DURING PENALTY PHASE DELIBERATIONS AND FOR DENYING THE NEW TRIAL MOTION BASED ON MULTIPLE INSTANCES OF SERIOUS JURY MISCONDUCT A. JN 11 Committed Misconduct by Discussing JN 6's Notebook with JN 6 And the Jury Coordinator. (AOB,Part C, section 3, pp. 279-81; RB, pp. 243-45.) According to respondent's reading ofthe record, the jury coordinator's sworn testimony merely "assumed" that JN 11 heard former JN 6's objectionable comments. (RB, p. 244-45.) Respondent is wrong. Whenasked ifJN 6's statement was "within hearing range" ofJN 11, the jury coordinator answered, "Most definitely." She elaborated: "They were standing right next to each other. I was seated in a chair at the bar there in the cafeteria, and I had turned around and they were both standing right in front ofme, and she definitely heard everything that wassaid." (SORT 14356; emphasis provided.) The prosecutor then asserted: "It's just your opinion that she heard what she said... . You don'tknow for a fact whetheror not she did actually hear what was said?" The jury coordinator responded, "Well, she wasstanding right next to her whenit wassaid. I heard it, and I'm assumingif I heard it she would have heardit as well. We were [in] very close proximity to each other. I mean, literally my knees 75 were almost touching the two jurors, so she would have been completely ignoring the entire conversation to not hear what was said." (SORT 14356- 57.) Appellant contends that the jury coordinator's testimony is more than sufficient to establish that JN 11 heard JN 6's objectionable comment. Indeed,the trial court itself found that JN 11's statement that she did not hear the comments by JN 6 "conflicted" with the jury coordinator's testimony, which can only mean that the coordinatortestified that JN 11 did hear the comment. (See SORT 14367.) Moreover, whenrecalled before the judgeafter the jury coordinator's testimony, JN 11 admitted that she "barely heard" JN 6's statement about "a word in [her] notebook she didn't want anybody to read." (SORT 14366.) Although JN 11 tried to minimize the fact ("barely") her testimony wasthat she did hear. Furthermore,her ability to recount the general content of JN 6's negative comment (a word in her notebookshe didn't want anyone to read) showsthat she did hear JN 6's conversation with the jury coordinator — either that, or she had a prior or previous conversation with JN 6 apart from the jury coordinator, even though she deniedthat. Respondent also mistakenly claimsthat the other jurors’ declarations "refute" appellant's claim that JN 11 knew about former JN 6's comment about appellant. (RB, p. 245.) First, JN 11's own statement showsthat she 76 did know that former JN 6 had a "word"in her notebook that she didn't want anybodyto read (after first claiming she heard nothing about former JN 6's notebook). Secondly, respondent's reasoning is flawed. He argues that new JN 6 declared that JN 11 did not describe and said she did not hear the communication between former JN 6 and the jury coordinator. This does not show that JN 11 did not hear that conversation, only that she denied hearing it. Andat this point, former JN 6 having been excused from the jury, JN 11 knew that knowledge ofthe contents of that communication would be trouble for her as well. These negative facts (that JN 11 denied knowinganddid not disperse the contents of former JN 6's notebook comments) prove nothing. JN 11's failure to repeat the objectionable comments to the other jurors does not support respondent's claim that "there is no indication that Juror 1 lheard former Juror 6's comment about appellant." (RB, p. 245.) In fact, the indications are manifold, as elaborated abovein this paragraph. Respondent's parting shot is that because appellant's claim is all "speculation,"the trial court's credibility finding on this point is "entitled to great weight." (RB, p. 245.) As shown above, appellant's argumentis based on record facts that respondent choosesto ignore. Moreover,the trial court's credibility finding should not be deferred to by this Court, because the trial court also disregarded the fact that JN 11's statements were 77 internally inconsistent, in that she denied hearing or have conversation with JN 6 at first, and then admitted that did she "barely hear" something JN 6 said, and her explanation showedshe wasprivy to the contents ofJN 6's statement which included a bad word about appellant. (See AOB,p. 280.) In sum, the record showsas a demonstrable reality that JN 6 heard JN 11's negative description of appellant, either when JN 6 talked to the jury coordinator, or at someother time; in either case, it was misconduct _ the discussion with JN 6 outside of deliberations was misconduct. (AOB, Part C, section 1, pp. 272-76; RB, pp. 247-48.) Appellant contends that JN 11 purposefully concealed in voir dire the fact that she had been sexually abused as a child, thus committing misconduct. Citing to In re Hitchings (1993) 6 Cal.4th 97, 110-11, respondent agrees that concealment ofrelevant facts during voir dire may constitute misconduct. Nonetheless, he arguesthat it is "highly questionable" whether JN 11 "intentionally concealed relevant information," and that a juror should only be excusedif she is "sufficiently biased" that she is unable to perform her duty. (RB,p. 247.) Respondent makes a mighty effort to fit the facts into the category of "inadvertent" rather than "intentional" concealmentof facts during voir dire, presumably because intentional concealment is misconductraising a 78 presumption of prejudice, People v. McPeters (1992) 2 Cal.4th 1148, 1175, whereasinadvertent concealment is only considered misconductifthe juror is deemed sufficiently biased so as to be able to perform her duty. (RB,p. 245.) Thus, respondenttries to align the facts ofthis case with those in People v. Wilson (2008) 44 Cal.4th 758, 823.) The attempt fails. In Wilson, the juror in question "affirmed during voir dire that he would not consider defendant's race to benefit or disadvantage him... . Whenquestioned during the penalty phase [after allegations of misconduct surfaced], he affirmed his views, explaining that he viewed the mitigating evidence favorably because defendant came from a broken, disadvantaged family, not simply because he was African-American." (/bid.) Thetrial court had concludedthat the juror had concealed race-based assumptions about young African-American men who grew up without strong positive male role models. However, this Court observed that the juror "was never asked about that subject" and thus did not conceal his views about them (and his failure to express his views on African-American family dynamics is not the kind of concealment that would justify his removal in any case). (Id. at 823-24.) Respondentrelies on Wilson to argue that there wasnointentional concealmentin this case because JN 11 “was never asked whether she would interpret evidence of any abuse defendant may haveoffered as a 79 child 'through the prism of [her] own experiences.” (RB, p. 247.) Respondent's facts are incorrect and his reliance on Wilson misplaced, because on the jury questionnaire JN 11 was indeed asked whethershe, a close friend, or relative had ever been a victim of a crime. She answered yes but left blank the questions about who, what crime, and when. (78CT 20470.) When she was asked aboutthis in voir dire, JN 11 answered that "it was mysister" who had taken "bad drugs" and wasinstitutionalized for awhile. (16RT 4363.) In short, JN 11 was asked about being a crime victim and she concealed the information about her ownsexualabuse,then in penalty phase deliberations told the other jurors that she had been severely abused and brutally raped, like appellant, but unlike him, she had neverkilled anyone. (27CT 6576, 6583.) The brutal treatment JN 11 suffered as a child could not have been innocently or inadvertently "forgotten" when she was asked whethershe wasa victim of a crime, whenit so easily came to mind during penalty phasedeliberations.'? Moreover, although she answered "yes" on the questionnaire without explanation, when asked for an B Moreover, in the questionnaire she had also given her opinion of Child Protective Services, stating that "protecting a child is a good thing." (78CT 20468.) This question and answer would certainly have triggered her memory ofher owntragic abuse (even assuming that she had momentarily and inadvertently forgotten about it when asked whether she or someoneclose to her was a crimevictim. 80 explanation of the victimization she reported an incident abouthersister which did not seem to be a crime. And JN 11 obviously remembered the incident vividly at the time ofpenalty phase deliberations — indeed she brought up her own abused childhood twice, once during theinitial deliberations, and again after the new JN 6 joined the group and deliberations were to begin anew. (27CT 6576, 6583.) Respondent quotes this Court's discussion in Wilson that "it is unrealistic to expect jurors to be devoid of opinions, preconceptions or even deep-rooted biases derived from their life experiences" in diverse racial or ethnic or religious groups, and then concludesthat '[a]s such, appellant cannot demonstrate that juror 11's failure to disclose [her] prior victimization was intentional in any way." (RB, p. 248.) The leap to this conclusion lacks logic. Granted that jurors in a diverse society have diverse opinions and preconceptions and can be expectedto use their life experiences whenevaluating the evidence. (Wilson, 44 Cal.4th at 833, citing People v. Bell, 49 Cal.3d at 564.) But it certainly does not follow that a juror who is asked whether she or anyone close to her was a crime victim, and then fails to reveal that she herselfwas a victim of a severe and brutal crime (that she remembered in dramatic and prejudicial fashion when deliberating at penalty phase) should be deemedto have "inadvertently" 81 concealed that information at voir dire. In this case, JN 11 was asked a specific and relevant question and she concealed the answer. Thisis far different than what happened in Wilson, where the consensusofthe trial court and this Court was that the juror "was himself unaware" of any race-based assumptions, and so could not be deemed to have intentionally concealed them. (/d. at 824.) JN 11 was more than awareofher victimization and her remarksin deliberations showedthat was biased against appellant because she had managed to survive that victimization. Bruton v. Johnson (10th Cir. 1991) 948 F.2d 1150, 1159 reversed a murder conviction in identical circumstances,i.e., the juror failed to reveal her own sexual abuse during voir dire then discussed that experience during deliberations. The Tenth Circuit observed that the juror's dishonesty wasitself "evidence of bias," and this Court should find the same. B. JN 11 Committed Misconduct by Discussing The Case with Former JN 6 After She Had Been Excused and then Repeating Former JN 6's Comments to the Deliberating Jury. (AOB,Part C, section 2, pp. 276-79; RB 248-50.) — Respondent argues that the unauthorized communication between former JN 6 (after she had been excused from serving on the jury) and JN 11 (while she wasstill deliberating) should be "taken into context." Respondent then provides his own context. He interprets the comment of 82 "remember the work we've already done" (according to JN 3) as "words of encouragement"to the jury; and the comment "don't forget everything I've done" according to new JN 6) as "encourag[ing] the remaining jurors to deliberate fairly and in an organized manner," since JN 6 wasthe former foreperson. (RB, p. 249.) Respondent contendsthat neither comment, as he reformulates them, constitutes misconduct: First, because the communicator was the former foreperson ofthe jury, which, according to respondent (whocites no authority for the assertion) does not carry the "stigma of a third party who has an actual stake in the outcome." (RB, p. 250.) Secondly, respondent argues the communication was not misconduct because "it did not order the jurors to vote a certain way" and more importantly, the communication did not "discuss the guilt or innocence" or "impart any information about the case." ([bid.) Appellant contends that the Penal Code is ofmore valueto this Court in evaluating this issue than the "context" and interpretation supplied by respondentthat are wholly devoid of citation to any statutory or case authorities. Penal Code section 1122, subdivision (a) forbids jurors to discuss "any subject connected with thetrial" with either sitting jurors or non-jurors outside of deliberations. Thetrial court repeatedly instructed the jurors not to discuss "anything even connected with this case" until after the 83 case was submitted and all 12 jurors were deliberating. JN 11 wasa sitting juror and former JN 6 was anon-juror. Their discussion focused — even in the interpretation provided by respondent — on a "subject connected with thetrial," i.e., the deliberations themselves. Whether former JN 6 referred to "work" they had done while she wasajuror, or "work" she had done as a juror and foreperson, the "work" can only be understoodas the evaluation ofthe evidence and the deliberative process. Moreover, when JN 11 repeated former JN 6's admonition to "remember" or "not to forget" the "work already done,” the communication directly violated the trial court's instruction to the newly formulated jury to begin deliberations anew and not to rely on former deliberations. Respondent mistakenly focuses on the communication by former JN 6: but it is JN 11 who committed the misconduct. At the time ofthe communication former JN 6 was no longera juror; but JN 11 was, and she wasstill in deliberations. Therefore, JN 6 violated the trial court's order not to discuss any subject connected with the case, and committed misconduct by speaking about the case with JN 6, and then again by repeating JN 6's commentto the other deliberating jurors. Furthermore, there is no exemption to the mandate ofPenal Code section 1122, despite respondent's implication to the contrary, for communications by formerjurorsto sitting jurors, or to communications 84 about matters connected to the case but not directly about guilt or innocence (in any case this wasthe penalty jury). People v. Wilson, 44 Cal.4th at 839-40 held that a "technical" violation of section 1122 andthe trial court's admonition were not grounds for excusing a sitting juror who madesolitary and fleeting commentsto a fellow juror in the hallway, because they were "trivial" and not made "in an obvious attempt to persuade anyone." Here, in distinct contrast, the improper communications were repeatedto the entire sitting jury during deliberations, and were madein the first instance in an obviousand blatant attempt to persuade the newly deliberating jury. Respondent's "contextual" interpretation of former JN 6's comments as mere "encouragement" to be "organized"is risible. The former juror had no business or need to encouragethe jury to deliberate "fairly and in an organized manner." Surely she understood that this was the judge's purview, and that once she had been excusedasajuror it was not any concern ofhers. The only motive for former JN 6's call to JN 11 — which both women had to know wasin violation of the court's order — was to encourage the jurors to do her bidding. And JN 11's only purposein repeating the admonition from the former JN 6 was the same. If JN 11 had understood or believed the communication as an encouragementto deliberate fairly in an organized manner, she could have just said, without repeating what former 85 JN 6 had said, "Let's be fair and organized." The only possible motive for JN 11 to repeat to the deliberating jury the words of former JN 6 wasto remind, persuade and urge them to deliberate in the same manner they had done before former JN 6 was discharged — in direct violation of the trial court's order. The communication with the former juror and the repetition oftheir conversation to the sitting jury was egregious misconduct. C. JN 11 and JN 4 Committed Misconduct by Injecting Into Deliberations Extrajudicial Information About Appellant's Security Level as a LWOPPrisoner. (AOB,Part C, section 4, pp. 281-82; RB, p. 250.) Appellant maintains that JN 11's statement to the otherjurors that appellant would be in the "general population” in prison ifthey did not render a death verdict, assuring the others that she (a former military personnel with training in security) knew whatprison waslike. JN 4 also told the other jurors that appellant would be in the yard with other prisoners and not lockedin his cell. (27CT 6576, 6582, 6571-72.) Respondent arguesthat the jurors were properly using their ownlife experiences in analyzing the evidence (which is appropriate) rather than improperly injecting an opinion explicitly based on specialized information from outside sources. (RB, pp. 251-52.) People v. Steele (2002) 27 Cal.4th 1230, 1266 described the boundary between proper and improperuseof life experiences by a juror as a "fine line." 86 Appellant contends that JN 11 (JN 18064) crossed that line. She stated in her juror questionnaire that she was in the military and listed her occupation as "security." (78CT 24067-69.) She stated in voir dire that she hadtraining in security. (16RT 4362.) When shetold the other jurors that she knew that an LWOPsentence would place appellant in general population at the prison, she was injecting her opinion "explicitly based on specialized information obtained from outside sources," which this Court has described as misconduct. (Steele, 27 Cal.4th at 1266.) Respondentclaimsthat there is "no indication that any one juror's voice was authoritative on this topic.” (RB, p. 252.) This is incorrect: In both her jury questionnaire and voir dire JN 11 indicated her professional and military experience in security. Respondentalso asserts that because none ofthe jurors "could have personally experienced prisonlife" there is necessarily "no indication" that any juror was injecting her own expertise into the deliberations; instead the jurors were instead merely making "reasonable inferences as to whatprison life would be like." The argument is absurd: it is akin to arguing that a medical doctor juror who opined about the cause of death in a homicide case -- without any evidence to support his conclusion -- would not be improperly injecting his professional opinion as long as the doctor had not personally experienced a gunshot wound. A juror holding herself out as a security officer with training in that field 87 would reasonably be viewed by others as having specialized knowledge of the conditions of incarceration based on outside sources. JN 3 stated as muchin her declaration: JN 11 said she knew whatprison life was like and acted like she knew, when she said that a LWOP sentence would result in appellant serving his time in general population. (27CT 6566.) JN 11's claim is similar to that in People v. Stankewitz (1985) 40 Cal.3d 391, 397, 399-400 in which a formerpolice officer juror told the other jurors that he knew the law. In sum, JN 11 committed misconduct by offering her opinionsthat were not based on the evidenceat trial but on her own outside expertise. D. The Jurors Committed Misconduct by Failing to Report the Improper Communications by JN 11, and by Failing to Begin Deliberations Anew After Former JN 6 Was Removedfrom the Jury. (AOB,Part C, section 5, pp. 282-83; RB, pp. 252-53.). As to appellant's claim that the jurors committed misconduct by failing to follow instructions to begin deliberations anew after former JN 6 wasreplaced, respondentrepeats his refrain that appellant's claim is "speculative and unsupported by the record." (RB, p. 253.) The evidence showsthat when new JN 6 replaced former JN 6, and the newly formulated jury was told to begin deliberations from the beginning, the other jurors "shoved the evidence" at new JN 6 for her to review on her own becausethe other eleven had "already been through it." 88 (27CT 6580-81.) Respondentinterprets this as the other 11 jurors giving JN 6 "time to catch up" with them before beginning deliberations again. (RB, p. 253.) Appellant contends that reviewing the evidenceisa critical part of deliberations, and the refusal ofthe 11 other jurors to review the evidence together with new JN6 amounted to a refusal to follow the court's order to begin deliberations anew with all 12 jurors. Respondentalso argues that the jurors knew they had to start anew. (RB, p. 253.) The argument misses the point, which is not what the jurors "knew," but what they did. And what they did was shunt new JN 6 aside to review the evidence on her own, because they had already been throughit and all 11 had already voted for the death penalty. (27CT 6575.) Appellant cited People v. Engleman (2002) 28 Cal.4th 436, 445, because it states, on the cited page, that the jurors’ refusal to follow a court order, including the instruction regarding the duty to deliberate, constitutes misconduct. Respondent takes issue with appellant's citation to this case on the groundsthatit is "procedurally different" from the case at bar. (RB, p. 252.) That the posture in Englemanis different from the procedural posture ofthis case does not render the principles espoused there inapposite. As explained in Harris v. Superior Court, 3 Cal.App.4th at 666-67: "In an attempt to extract legal principles from an opinion that 89 supports a particular point ofview, we must not seize upon those facts, the pertinence ofwhich go only to the circumstancesofthe case but are not material to its holding. The Palsgrafrule, for example, is not limited to train stations." In addition to appellant's claim that the jury committed misconduct by failing to begin deliberations anew (addressed immediately above), appellant also argued that the jurors committed misconduct by failing to report that JN 11 had improperly related to them the contents ofher — communication with former JN 6. Respondentdoesnot addressthis portion of appellant's argument. '* Appellant refers this Court to his discussion in the Opening Brief, p. 283. E. The Multiple Instances of Juror Misconduct Require Reversal of Appellant's Sentence Of Death. (AOB,Part D, pp. 283-86; RB, pp. 253-54.) Asto thetrial court's mistaken refusal to remove JN 11 in thefirst instance (after the incident in which she and former JN 6 discussedtheir notebooks with the jury commissioner)'° the misconductraised a i Respondent did address appellant's related claim that JN 11 committed misconduct by talking to former JN 6 and then reporting to the deliberating jurors what former JN 6 had said. (See RB, pp. 248-50.) However, the other 11 jurors also violated a court order by failing to report JN 11's comments, and thus they also committed misconduct. 1S See AOB,Arg. XII, Part C, section 2, pp. 276-79; RB, pp. 248-50.) 90 presumption of prejudice that was not rebutted by the prosecution. (People v. Daniels (1991) 52 Cal.3d 815, 864.) As to the claims ofmisconduct based onthetrial court's denial of the new trial motion, even assessing the prejudice under the "substantial likelihood ofbias" standard'° requires reversal of appellant's convictions. Respondent argues that any misconduct should be considered harmless by this Court because the trial court ruled that "the jury did its job."" (RB, p. 254.) Respondent maintains that this ruling is "supported by the record" because portions of two juror declarations state that the "jury did its job" and that the final decision was collective. (RB, p. 254.) The jurors’ claims that they did their job does not "support" the trial court's ruling: the jurors are neither authorized nor competent to evaluate their own performance under the applicable legal standards Asappellant pointed out in Appellant's Opening Brief, the misconduct prejudiced appellant at the penalty phase. Former 16 Respondent cites People v. Nesler (1997) 16 Cal.4th 561, 580, 590 and In re Carpenter (1995) 9 Cal.4th 634, 654-54 as requiring a "substantial likelihood ofjuror bias" after denial of a motion for newtrial based on juror misconduct for receipt of extraneous information. (RB,p. 253.) 91 JN 6 tainted the jury through JN 11 who reminded the jury "not to forget" the work they had already done, which together with the jurors making the new JN 6 review the evidence on her own, signaled a strong message that the new deliberations were not really going to be new,but rather a continuation ofwhat had gone on before, a flat-out denial of appellant's right to trial by an impartial jury of 12 persons. Instead he had a jury of 13, with the ghost of former and biased JN 6 hovering over the deliberations. JN 11's concealment ofher own sexual abuse and her subsequentuse ofthat information ("I was abused and I never killed anyone") washighly prejudicial in that her statement went to the heart of appellant's mitigation, and tended to negateit. The extrajudicial information that appellant would serve a prison sentence in general population was highly likely to have influenced the verdict because appellant's future dangerousness was a question emphasized in a jury note to the judge. Furthermore, in assessing cumulative prejudice on this point, this Court mustfactor in the prejudicial impact ofthe trial court's exclusion oftestimony by former Warden Parksthat appellant would adjust well in prison. (See AOB,pp. 285-86.) 92 XII. THE TRIAL COURT VIOLATED APPELLANT'S FIFTH, EIGHTH AND FOURTEENTH AMENDMENT RIGHTS TO DUE PROCESS AND TO A RELIABLE SENTENCING DETERMINATION BY ERRONEOUSLY ADMITTING IN AGGGRAVATION EVIDENCE THAT DID NOT INVOLVE CRIMINAL ACTIVITY OR FORCE OR VIOLENCE, AND THAT WAS UNRELIABLE A. The Alleged Escape of April 1999 Was Inadmissible Aggravating Evidence Under Factor (b) or as Rebuttal Evidence. (AOB,p. 289; RB, pp. 256-62.) Respondent acknowledges that in People v. Boyd (1985) 38 Cal.3d 762, 776, this Court held that a threat of violence against property which is not itself a violation of a penal statute is inadmissible as an aggravating factor under Penal Codesection 190.3(b), and thus evidence of a nonviolent escape also "may be inadmissible." (RB,p. 256.) Nonetheless, as to the alleged escape attempt ofApril 1999, respondent argues it was admissible under section 190.3(b) because the attempt, had it been carried out, could have involved a confrontation with a guard and thus the challenged evidence "contained" "criminalactivity"that involved the "implied threat to use force or violence." (RB, pp. 257-58.) Respondent's argumentrelies on the fact that his request forjail photographs wasdetailed and specific, and on appellant's statement to his former wife that he would not die in jail but would "go downin a blaze of 93 glory." (RB, p. 258.) However, the detailed requests, if anything, suggest an attempt to avoid confrontation with jail personnel; and the "blaze of glory" statement implies not a threat of violence not committed by him but to him. Respondent's argument is based not on the evidence presented, but on respondent's speculation that "if anyone tried to prevent [appellant's] escape, he would use force or violence against them." (RB,p. 258; emphasis provided.) There was no evidence that appellant had or wanted a weapon; appellant made no mention ofjailhouse personnel or what would or might happen were he to confront them. Respondenttries to distinguish the facts at bar from those in People v. Boyd, 38 Cal.3d at 776, arguing that in Boyd, the connection between the defendant and a metal grate removed from an air vent was circumstantial, whereasin this case, there is "direct evidence" consisting of appellant's statements regarding an attempted escape. But the distinction between direct and circumstantial evidence was not the ratio decidendi in the Boyd decision. Rather it was the fact that the evidence ofthe escape attempt did not involve violence orthe threat ofviolence — even though the attempt in Boyd wasthe actual removalof a grate and not, as in this case,still theoretical. Boyd emphasizedthat the purpose of section 190.3(b ) is "is to prevent the jury from hearing evidence of conduct which, although criminal, is not of a type which should influencea life or death decision." 94 (Id. at 792.) Thus, damageto property or a threat to damage property was inadmissible underthe statute. Here, the evidence of an implied threat of force ofviolenceis less than that in Boyd. Appellant asked for photographs: a step towards an escape attempt perhaps, but not one implying a threat of force or violence. Respondent's entire argument is premised on his interpretation of appellant's statement of bravado to his then-wife as a threat ofviolence, but that interpretation is not evidence. Respondentfurther argues that even if this Court finds the evidence insufficient under factor (b), it was admissible to "rebut" testimony: (1) by William Sweeney, administrator of a group home in which appellant was housed when he was12 years old, whotestified that such group homesdid not at that time have the resources to deal with children as traumatized and damaged by sexual abuse as appellant was; and (2) group home counselor Rhonda Schuchart whotestified inter alia that she liked appellant and considered him intelligent. (RB, pp. 259-60.) Respondent argues that because the defense "was attempting to get the jury to show mercy on him," the prosecution wasentitled to introduce non-statutory aggravating evidence against him. Appellant disagrees. As this Court held in People v. Loker (2008) 44 Cal.4th 691, the scope of rebuttal evidence mustrelate to a specific incident or charactertrait offered in mitigation. Loker held thatthe trial 95 court should have required the prosecutor to ask about specific incidents in a psychiatric report that were relevant to the particular positive aspects of the defendant’s charactertestified to by several witnesses, rather than allowing the prosecutor to reference contents ofthe report referring to "bad things" the defendant had done. This ruling violated several well- established principles regarding the scope of rebuttal evidence in the penalty phase: First, if a witness’s testimony regarding defendant’s good character is “limited to a ... singular incident [or] personality trait,”that does not “open the door to any andall ‘bad character’ evidence the prosecution can dredge up.... [T]he ... rebuttal ... evidence ... must relate directly to [the] ... particular incident or character trait defendant offers in his own behalf. [Citations.|” (Jd. at 709.) Secondly, when a mitigation witnesstestified about the "defendant's problems"rather than his "good character," the prosecution cannot properly rebut that evidence with evidence ofmisconduct unrelated to the specific adverse circumstances evidence introduced in mitigation. (/d. at 715-16; see also People v. Nelson (2011) 51 Cal.4th 198, 223-24 [citing Boyd, 38 Cal.3d at 773-74 and holding that evidence of a defendant's background, character, or conduct that is not probative of any specific sentencing factoris irrelevant to the prosecution's case in aggravation and therefore inadmissible]; People v. Medina (1995) 11 Cal.4th 694, 769) [a sister's "fear" ofher brotheris 96 neither a proper aggravating factor, nor proper rebuttal to mitigating "background"evidence.| Examples of evidence properly admitted to rebut specific mitigating evidence are shown in People v. Eubanks (2011) 53 Cal.4th 110, 144-45, in which the defendant presented evidence of her good parenting abilities, and the prosecution was thus permitted to rebut that evidence with defendant’s admission of a single incident of child abuse, and in People v. Clark (2011) 52 Cal.4th 856, 936, in which the defense presented evidence ofthe defendant's work ethic, a likely brain damage-inducedrage at the time of the crimes, and the prosecution then properly presented expert testimony that the defendant suffered from antisocial personality disorder, and other testimonythat the defendant had no income, never sought employment and usually slept until noon. Finally, respondent argues that the relative weakness ofthe objected- to evidence renders its admission harmless, especially when viewed against the facts of the capital murder and the jailhouse incident. (RB,p. 261.) Appellant contendsthatthe prejudice from the erroneously admitted aggravating evidence, and the erroneously excluded mitigating evidence (Arguments XIII and XIV) must be viewed cumulatively and not in piecemealfashion. (See Arg. XVI, p. 124.) / / 97 B. The Alleged Escape Attempt of May 2002 Was Inadmissible Aggravating Evidence Under _ Factor (b) or(c). (AOB,p. 291-93; RB, pp. 262-66.) Respondent repeats the argument that evidenceofthe alleged escape attempt ofMay 2002 was admissible because it contained both "criminal activity" and an "implied threat to use force or violence" as required under factor (b). Inmate Cozart informed the deputies that appellant and Ben Williams had a plan to effect an escape and that someone named Tim was supposed to put moneyin appellant's accountas a sign that the plan was ready to be carried out. However, Tim never showed upon the scheduled dates and apart from talk, nothing happened. Deputy Jackson determined that someone named Tim Yakiatis had put moneyin appellant's account on May 15. However, Jacksonalso testified that Cozart believed the attempt was scheduled for May 24, and Jackson did not know if the money deposited by Yakiatis on May 15 had anything to do with the escape plan. Consequently, respondent's arguments as to why the plan amounted to an "implied threat of force or violence" are immaterial. As Cozart testified, nothing happened. Respondentarguesthat the deposit ofmoney into appellant's account on May 15 was "an act in furtherance" ofthe conspiracy or escape attempt. However, there was noevidenceofthis. Deputy Jackson stated he did not know if the two events were related in any 98 way. (RB, p. 263.) Thus, the evidence did not satisfy the requirement of "criminal activity" and it should not have been admitted under factor(b). Respondent makes the further argumentthat the alleged escape attempt ofMay 2002 should be deemed admissible as "part and parcel of the June 22, 2002" escape attempt, which was admitted in aggravation and which appellant does not challenge. Under this theory, the two incidents werepart ofthe sametransaction,i.e. "a continuous and consistent plan to escape custody by force." (RB, p. 264.) As set out immediately above, appellant contends the evidence wasinsufficient to constitute an attempt; thus, the mere talk cannot be deemedpart of a "continuous and consistent" plan to commit a violent crime. In any case, respondentcites no authority for his assertion that a non-crimecan be corralled into factor (b) evidence by describing it ipse facto as part of a separate incident a month later. Respondentasserts that the prosecutor intendedto treat the two incidents as "linked" because he presented the testimony of Cozart and Jackson during the testimony regarding the supposed escape attempt ofJune 2002. This "reasoning"is specious at best. The prosecutor's intent does not amount to an evidentiary rule of admissibility, an exception to the statutory prohibition of section 190.3, subdivision (b), or proof of appellant's act or intention. In the alternative, respondent argues that the May 2002 evidence was admissible under Evidence Code section 1101(b) to show appellant's intent 99 to escape from jail by force in June of 2002. (RB, pp. 264-65.) Respondent cites no authority for the proposition that the cited Evidence Code section can be used to admit misconduct otherwise inadmissible under factor(b). Theonly case appellant has found that permitted the use ofEvidence Code section 1101(b) to present additional evidence of the defendant's intent in a factor (b) incident was "because there was a dispute as to whether[the intentional brandishing of a gun, which wasonits face admissible under factor (b)] was a deliberate act or an accidental one." (People v. Jablonski (2006) 37 Cal. 4th 774, 834-35.) The reasoning does not apply in this case. There was no dispute as to appellant's intent in the June 2002 escape attempt, and thus no needto present "additional evidence"ofthat intent with the non-crime ofMay 2002. Asto prejudice, respondent again arguesthat even if this evidence waserroneously admitted, it should be deemed harmlessit "paled in comparison" to the circumstancesofthe capital crime and the June 2002 incident. (RB, p. 265.) Appellant repeats that the errors in admitting aggravating evidence and in excluding mitigating evidence cannot be viewed on a one-by-onebasis; the prejudice from each must be viewed cumulatively. (Arg. XVI, p. 124, below.) / / 100 to escape from jail by force in June of 2002. (RB, pp. 264-65.) Respondent cites no authority for the proposition that the cited Evidence Code section can be used to admit misconduct otherwise inadmissible underfactor (b). The only case appellant has found that permitted the use of Evidence Code section 1101(b) to present additional evidence ofthe defendant's intentin a factor (b) incident was "because there was a dispute as to whether [the intentional brandishing of a gun, which wasonits face admissible under factor (b)] was a deliberate act or an accidental one." (People v. Jablonski (2006) 37 Cal. 4th 774, 834-35.) The reasoning does not apply in this case. There wasno dispute as to appellant's intent in the June 2002 escape attempt, and thus no needto present "additional evidence"ofthat intent with the non-crime ofMay 2002. Asto prejudice, respondent again argues that evenifthis evidence was erroneously admitted, it should be deemed harmlessit "paled in comparison"to the circumstancesofthe capital crime and the June 2002 incident. (RB, p. 265.) Appellant repeats that the errors in admitting aggravating evidence and in excluding mitigating evidence cannot be viewed on a one-by-one basis; the prejudice from each must be viewed cumulatively. (See-Part*,below.) / Pm AN wi ¢ ) ¥ 100 Cc. Evidence of Appellant's In-Custody Possession of a Rolled-Up Newspaperanda Flattened Soda Can WasInadmissible Aggravating Evidence. (AOB,p. 293; RB, pp. 270-275.) 1. The flattened soda can. Respondentrefers to the flattened Pepsi can as a "shank," andrelies on People v. Michaels (2002) 28 Cal.4th 486, 535 to arguethatits possession can demonstrate an implied threat ofviolence despite the lack of evidence that appellant used or displayedit in a threatening manner. (RB, p. 272.) Appellant notes that Juvenile Hall Counselor Schuchart, to whom appellant showed the object, described it as a broken-down or flattened Pepsi can that was "possibly" in the shape of a knife although she could not recall exactly whatit was.’ (39RT 11075-76.) Respondentarguesthat "the specific manner in which appellant presented the shank to Schuchart strongly suggested a threat ofviolence against heror otherstaff." (RB, p. 272.) Appellant submits that Counselor Schuchart's testimony -- which is "Theflattened can wasnotpreserved. Schuchart testified that the object was "just in the shape ofmaybe — I don't know, a make-shift knife. I'm not —I can't really exactly recall exactly what it was. All I know isit was Pepsi can that was broken down." Deputy Masterson, who saw it and could not rememberits dimensions, nonetheless described it as a "knife." (39RT 11084-86, 11089.) 101 the only evidence ofthe "specific manner in which appellant presented"the flattened can to her — she testified that appellantslid it under the door to show herand she did not feel threatened — flatly refutes respondent's argument. Respondentalso contendsthat "the incident caused Schuchart to file an incident report." (RB, p. 272.) Respondent ignores Schuchart's testimony that the soda can itselfwas contraband, and thusthe filing of an incident report does not show that the item was considered an illegal "shank." 2. The rolled-up newspaper. Asto the rolled-up newspaper, respondent argues that because it was "discovered on the samedayas the June 22, 2002, escape attempt"it "can be viewedas part and parcel of the evidence"ofthat escape attempt, and "as such, the violent nature and result ofthe escape attempt can be attributed to the newspaperbaton as appellant possessed it in anticipation of effectuating his escape.” (RB, p. 273.) The argumentis speculation based on surmise: the fact that the newspaper was discovered by correctional officers on June 22 does not meanthat it was "part and parcel" of an escape attempt, or that appellant intendedit as part of a violent escape,particularly since the newspaperwasin appellant's cell and not at the scene ofthe 102 assault on Deputy Renault. Respondent cites no authority for his ipse dixit argument. '* Respondentfurther argues that the "stiffness/density of the weapon madeit comparable to a police baton," citing Deputy Heberling's testimony that it was "softer than metal" and "roughly comparable"to a baton, and that it "would have had "more of a cushioned blow." (40RT 11393.) Although respondent conjectures that the "[t]here was no other reason to possess[the rolled newspaper] in a jail cell except to use it as a violent weapon," (RB,p. 274), this assertion contradicts the trial court's ruling that the evidence wasinsufficient to permit testimony by the officer that it was a weapon.(See 38RT 10894.) Appellant reiterates that neither the flattened soda can northe rolled- up newspaper waspreserved. Respondentfails to address this point. Moreover, as to the soda can, the testimony was equivocal as to whetherit was even sharpened;as to the rolled-up newspaper, the trial court found the evidence wasinsufficient to permit it to be described as a weapon. Thus, appellant contendsthat the trial court was unable to determine with 8 In support of his argument, respondentalso refers to the fact that appellant "was specifically transferred" to a "behavior modification unit" which required "security supervision." (RB, p. 272.) Respondent apparently means to emphasize that appellant was dangerous based on facts not in the record. However, appellant's housing unit does not tend to prove that the soda can was a dangerous weapon. 103 sufficient reliability whether these items were "potentially dangerous weapons" admissible under factor (b) or not. Respondent again argues that the prejudice from error in admitting this evidence because it was "relatively minor" in comparison with the crimes of which appellant was convicted. (RB, pp. 274-75.) Appellant repeats that the prejudicial analysis must includeall the erroneously admitted aggravants and the erroneously excluded mitigants together. (See Arg. XVI, p. 124, below.) D. Evidenceof the Forcible Extraction of Appellant From His Cell in February 2001 Was Inadmissible As Evidence in Aggravation. (AOB,pp. 296-99; RB, pp. 266-270.) Respondentfails to address the case law cited by appellant holding that verbal threats, and specifically death threats against correctional employees made by an incarcerated inmate are not admissible under factor (b). (See AOB,p. 298,citing People v. Wright (1990) 52 Cal.3d 367, 425- 26, People v. Tuilaepa (1992) 4 Cal.4th 569, 590 and In re Gay (1998) 19 Cal.4th 771, 786 & fn. 10.) In blatant disregard of these cases, respondent argues that appellant's "verbal threats” and other appellant's other conduct while locked inside his cell and while the correctional officers were on the other side ofthe locked door "evidenced an intent to challenge the jail officers to provoke a 104 physical confrontation," and "as such"thejail extraction of appellant by the officers demonstrated criminal activity and an implied threat to use force or violence. (RB, p. 269.) Respondentrelies on testimony that appellant was "kicking and yelling loudly" inside his cell when the deputies approached the doorto argue that the conduct "constituted a physical threat." (/bid.) Respondentalso argues that appellant "was ready to resist any attemptto take him out ofhis cell." (/bid.) Appellant is not sure what respondent meansby a "physical threat," or ifhe meansto suggest that appellant was "kicking"the officers. Appellant reiterates that there was no evidence of any physical confrontation between the officer and appellant (he kicked the door and did not kick the officers) except for the actual one-sided extraction itself in which padded and helmetedofficers first threw a stun grenade under the door of appellant's cell, then extracted and immobilized appellant. (See 38RT 10800-05.) Respondent choosesto ignore the case law relied on by appellant and to rely instead on his own speculation — unadornedbycitation to authority -- as to what appellant's words and actions made inside a locked cell might have meant. Appellant submits that the failure to address the case law amounts to a concession and acknowledgmentthat verbal threats by an inmate are not admissible under factor (b), as this Court has repeatedly held. (Compare People v. Adams, 143 Cal.App.3d at 992 105 {prosecution's failure to address prejudice is deemed a concessionthatif error occurred,it was prejudicial].) Indeed,in arguing that if the admission of this evidence waserrorit should not be deemed prejudicial, respondent cites People v. Silva (1988) 45 Cal.3d 604, which he describes as a case in which this Court found harmless the erroneous "admission of evidence at the penalty phase that defendant threatened officers." (RB, p. 270.) In Silva, the defendant challenged the admission of "his statementto a police officer that he would kill the first police officer to step inside his cell if he was not permitted to visit with his wife." The Attorney General concededthe error. (/d. at 636.) Respondent should have done the samehere. Instead, he makes an argumentcontrary to case law cited by appellant, and contrary to a case he himself cited (in arguing harmlessnessofany error) even though in that case the Attorney General concededthat threats to hurt or kill a correctional officer are not factor (b) evidence; in making his argumentthat the jail extraction testimony was admissible because of threats made by appellant, respondentcites to no authority other than his own speculation. Again, respondent arguesthat this error should be considered harmless because the jury would not have been influenced by this evidence, but rather by the "brutal and extensive beating" death of Lora Sinner and 106 the assault on Deputy Renault. (RB, p. 270.) Appellant repeats that the prejudicial analysis must include all the erroneously admitted aggravants and the erroneously excluded mitigants together. (See Part **, below.) E. The Erroneous Admission of Aggravating Evidence Rendered Appellant's Death Sentence Unreliable in Violation of the Eighth Amendment. (AOB,p. 299.) Appellant contends the evidence admitted in aggravation challenged abovewasinsufficiently reliable under the Eighth Amendment, even assuming arguendo any ofit is deemed to meet the requirements under section 190.3, subdivision (b). Respondent does not address this argument. F. The Erroneous Admission of Multiple Incidents As Aggravating Evidence Requires Reversal of Appellant's Death Sentence. (AOB,p. 300-01.) Asto each of these items of aggravating evidence, respondent argues that any error in their admission should be deemed harmless because, viewed separately, each wasrelatively minor in comparison with the circumstances ofthe crime, and the assault on Deputy Renault. (See RB, pp. 261, 265, 270, 274-75.) Appellant contends that the only realistic and fair way to assess the prejudicial impact of evidentiary errors at penalty phaseis to view them as a whole. The jurors are told to consider the "totality" of the mitigating circumstances with the "totality" of the aggravating circumstances. (See CALJIC No. 8.88.) 107 Thus, the fact that numerousitems of aggravating evidence were admitted, even if that evidence involved incidents relatively "minor" when comparedto the murderor assault of Deputy Renault, was significant in terms of prejudicial impact. For example, although respondent repeatedly claimsthat the prosecutor did not rely on the erroneously admitted ageravating evidence to urge a death verdict, in fact the prosecutor did focus on the numberofincidents in aggravation presented. Theseries of misdeeds wasthe centerpiece ofthe prosecutor's argument that appellant wasviolent, antisocial, that he liked to hurt people, that he makes shanks and wants to kill, in short that he was "consistently irresponsible" and was "going to get worse." (SORT 14234-42, 14240-41 14252, 14254-55.) This Court has held that prosecutorial argument exploiting error "tips the scale in favor of finding prejudice." (People v. Minifie (1996) 13 Cal.4th 1055, 1071; accord People v. Woodard (1979) 23 Cal.3d 329, 341.) The prosecutor here exploited every single erroneously admitted incident of aggravation addressed aboveto argue to the jury that it had to return a verdict of death. The evidentiary errors were thus prejudicial. A final note: although respondent repeats at every opportunity that the circumstances ofthe crime should renderall error harmless, this Court has recognized that the circumstancesofa capital crime can be mitigating as well as aggravating. (People v. Pollock (2004) 32 Cal.4th 1153, 1189 108 [error to instruct jury that factor (a) was aggravant; a jury may consider some aspects ofthe offense as mitigating]; People v.Smith (2003) 30 Cal.4th 581, 639 [factor (a) can be aggravating or mitigating].) Appellant contendsthat this was the case here in that accomplices Amy and Lori, and not appellant, initiated the fatal attack on the victim. / / 109 XIV. THE TRIAL COURT VIOLATED APPELLANT'S FIFTH, SIXTH, EIGHTH AND FOURTEENTH AMENDMENT RIGHTS BY ERRONEOUSLY EXCLUDING MULTI- GENERATIONAL MITIGATION EVIDENCE, INCLUDING A FAMILY HISTORY OF COVERING UP ABUSE Respondentarguesthatthe trial court properly excluded any evidence in mitigation since any evidence "that did not directly involve appellant and his upbringing wasirrelevant." (RB,p. 286, see also p. 285.) Appellant disagrees for this reason: In Wiggins v. Smith (2003) 539 U.S. 510, 522, the United States Supreme Court held the standardsfor capital defense as articulated by the American Bar Association are the guidelines for determining the competency of counsel. Those guidelines specifically require defense counsel to prepare a multigenerationalsocial history as part ofthe Sixth Amendmentduty to investigate and present mitigating evidence, as multigenerational evidence is often required to fully explain the defendant's character, background and eventhe circumstances of the offense. (ABA Guidelinesfor Appointment and Performance of Counsel in Death Penalty Cases (1989), Commentary, ABA Guideline 10.11; see also Hamblin v. Mitchell (6th Cir. 2003) 354 F.3d 482, 487 & fn. 2, 488; see also additional cases cited in AOB,p. 208.) Thetrial court excluded multigenerational mitigation evidence from two witnesses: (1) appellant's paternal aunt Sarah Belongie, who would 110 havetestified that her father — appellant's grandfather -- sexually abused her, and physically abused her and her mother — appellant's grandmother Phyllis Jones, who herselfwas instrumental in covering up appellant's own abuse by his father (her son), and that nothing was ever done about the abuse; and (2) Sherry Bigger, the girlfriend of one of appellant's mother's brothers, who would havetestified to that the problems that family (the Cromps) had involving drugs, prison, and parenting. (43RT 12086-89; 12202-03; 12363-72.) Respondent arguesthat this testimony was properly excluded because the witnesses would not have testified to personal knowledge of appellant or evidence involving appellant's own backgroundor character. (RB, pp. 285-86.) Appellant disagrees: multigenerational evidence of abuse, and its passive acceptance in the family, helps to explain not only the depth ofthe traumasuffered by appellant but also that such abuse was "normative" for generations in appellant's family, making it almost impossible for appellant to escape its consequences on his own character and conduct. Moreover, multigenerational sexual abuse that goes unacknowledged and untreated, and is so ingrained in the family dynamic, helps to explain why family members were unwilling or unable to protect or provide alternative for a child such as appellant, and thus whyappellant himself waslater unable to benefit from the bits and pieces ofhelp later intermittently provided to him. As Justice Oliver Wendell Holmes,Jr. said, 111 "A child's education should begin at least one hundred years beforeheis born."!? The sameis true as to the mitigation of a severely sexually abused and neglected child of a sexually abused mother. Respondentalso argues that any error in excluding this mitigation should be deemed harmless given the circumstances of the capital murder and the assault on Deputy Renault, since it "would not have added anything in mitigation.” (RB, p. 286.) Appellant disagrees and has just explained how the multigenerational evidence would strengthen the case in mitigation. Moreover, it would have weakened the prosecutor's theme in cross-examination and closing argument to the effect that appellant was given opportunities to fix himself and simply chose not to. (See 14248-49.) The multigenerational evidence would have gone a long wayto help the jury understand whyappellant's upbringing and family history rendered him unable to makethat choice. Prosecutorial reliance in argument on inadmissible testimony is a powerful indicator of prejudice. (People v. Minifie (1996) 13 Cal.4th1055, 1071 [prosecutorial argument exploiting error "tips the scale in favor of finding prejudice"]; see also Brown v. Borg (9th Cir. 1991) 951 F.2d 1011, 1017 [prosecutor's argument can enhance immensely the impactof false or 9 See 112 inadmissible evidence]; People v. Younger (2000) 84 Cal.App.4th 1360, 1385 [prosecutor's reliance in argument on erroneousjury instruction exacerbated the prejudicial impact].) By parity of reasoning, a prosecutor's argumentthat is made possible by the wrongful exclusion ofmitigating evidencealso indicates prejudice. XV. THE TRIAL COURT VIOLATED APPELLANT'S FIFTH, SIXTH, AND FOURTEENTH AMENDMENTRIGHTS TO DUE PROCESS, TO PRESENT A DEFENSE, TO A FAIR TRIAL, AND THE EIGHTH AMENDMENT PROTECTION AGAINST CRUEL AND UNUSUAL PUNISHMENT AND A RELIABLE SENTENCING DETERMINATION BY EXCLUDING EVIDENCE THAT APPELLANT WOULD ADJUST WELL IN STATE PRISON AND BY EXCLUDING PROPER REBUTTAL EVIDENCE AS TO THE SECURITY LEVELSIN STATE PRISON; ALTERNATIVELY, DEFENSE COUNSEL WASINEFFECTIVE UNDER THE SIXTH AMENDMENT FOR MAKING PROMISESIN OPENING STATEMENT PRIOR TO LITIGATING THE ADMISSIBILITY OF THE PROMISED EVIDENCE REGARDING APPELLANT'S ADJUSTMENT AND PRISON SECURITY LEVELS A. Expert Testimony that Appellant Would Adjust Well to Life in Prison Was Admissible in Mitigation. Respondentarguesthat this Court has "routinely held" that evidence of conditions of confinementis irrelevant at penalty phase, citing People v. Martinez (2010) 47 Cal.4th 911, 963 and other cases. (RB,p. 291.) In People v. Fudge (1994) 7 Cal.4th 1075, this Court ruled that testimony as to the "execution ritual" of a condemnedprisoner, and the "nature and qualify of life" for an LWOPprisoner wasproperly excluded. 113 (id. at 1117.) However, Fudge wenton to hold that testimony that "the defendant would not pose a danger if spared (but incarcerated) must be considered potentially mitigating," and testimony that "would have described [the defendant] as being a likely candidate to lead a productive and nonviolentlife in prison" was "relevant and admissible mitigating evidence." (Ibid.) Fudge emphasized that under Eddings v. Oklahoma (1982) 455 U.S. 104 and Skipper v. South Carolina (1986) 476 U.S.1, 5, "such evidence may not be excluded from the sentencer's consideration." (7 Cal.4th at 1117; emphasis provided.) Finally, Fudge held that the exclusion ofthis mitigating evidence violated the federal "constitutional requirement that a capital defendant must be allowed to present all relevant evidence to demonstrate he deserves a sentence oflife rather than death." (/bid.) Respondent's argumentis that the Martinez case is "controlling" here. (RB, p. 291.) Appellant points out that the trial court in Martinez allowed testimony from a prison expert, which thetrial court here did not do; and that rebutting evidence of future dangerousness wasnot in issue in Martinez becausethe prosecution had notintroduced such evidence. (47 Cal.4th at 962.) IfMartinez is "controlling" then it should mandate a finding by this Court thatthe trial court erred in its ruling here. In Martinez, the defense offered a corrections expert to testify to conditions of confinement for a Level IV inmate sentencedto life term, 114 including a description of conditions designed to minimize risks of escape and assault by the inmate, including photographs. The defense argued that the evidence was relevant to the defendant's potential to adjust successfully to an LWOPsentence, and that it would rebut evidence of future dangerousness. However, the prosecutor had not offered any evidence of the defendant's future dangerousness. (/d. at 962.) Thetrial court in Martinez excludedtestimonyasto the details of the prison system,”’ but allowed the expert to testify on "general descriptions ofprison life’ as well as his opinions on defendant's future dangerousness and whetherprison life was the kind of structured environmentthat defendant needed." (/bid.) Thetrial court also allowed expert testimony describing "the level 4 classification and its subdividing classifications." (Ibid.) Respondent mistakenly argues that in this case, "[a]s in Martinez, the trial court's ruling excluding the specific testimony offered was narrow," and did not "interfere[] with appellant's overall ability to present evidence on his future dangerousnessorhis ability to conform from a structured environment," because, according to respondent, a "careful reading" ofthe “0 Martinez did repeat the Court's rule that evidence concerning conditions of confinement for LWOP inmateis not relevant to penalty determination. (Jbid.) 115 ruling showsthatthe trial court "did not specifically exclude Jim Parks' testimony regarding appellant's likely adjustment to prison." (RB,p. 292.) (45 RT 12753.) This is flatly incorrect. The prosecutor objected to "any evidence presented by Mr. Park [the proffered prison expert]"andthetrial court sustained the prosecution's "objection to the presentation of that witness." (26CT 6257; 45RT 12753.) In sum,the trial court wrongly precluded "the presentation" of expert witness Parks.”' In contrast to Martinez, the trial court allowed no rttestimony on "general descriptions of prison life'" or an expert opinion on appellant's "future dangerousness and whetherprison life was the kind of structured environment that defendant needed." (47 Cal.4th at 962.) Instead, the trial court prohibited "the presentation" of the defense expert. Moreover, the defense requested presentation ofthe prison expert's testimony as rebuttal to the future dangerousness evidence presented by the prosecution. In Martinez, there was no aggravating evidence offuture dangerousnesspresented and thus the issue of rebuttal was moot. However, the penalty phase case in aggravation here relied heavily on future dangerousnessin the guise ofthe evidence of appellant's escape attempts 1 To the extent the defense proffered evidence ofprison conditions inadmissible under this Court's precedents, the trial court should have tailored its ruling, as did the trial court in Martinez. 116 and assaults. The prosecutor explicitly argued the evidence of future dangerousnessin urging the jury to return a death verdict, saying that "the only appropriate verdict is death," because appellant "attacks guards, he makes shanks, he wants to kill, he gets a rush overit," and "he's going to get worse." (SORT 14252, 14255.) Appellant argued at length in the Opening Brief that he had a due processright to rebut the prosecution's case in aggravation. (Simmons v. South Carolina (1994) 512 U.S. 154, 174; see AOB,pp. 312-16.) Respondentfails to address this argument. Respondent does argue that any error was harmless. As with other penalty phaseerrors, the reason offered by respondent in support of a finding ofharmlessnessis the "overwhelming evidence" of appellant's violent escape attempt and assault on the deputy. (RB, p. 292.) However, appellant was not allowed to rebut this evidence with proffered evidence of future successful adjustment. (See AOB,pp. 310-11.) Appellant submits that it is summarily unfair to argue that all penalty phase errors should be considered non-prejudicial because of evidence of a violent jail escape attempt that appellant was forbidden from rebutting, despite his federal due process right to rebut the prosecution's evidence. / / 117 B. Trial Counsel WasIneffective for Promising Testimony in Opening Statementto the Jury Prior to Having Litigated the Issue. Appellant contendsthat trial counsel's promise of Parks' testimony in his opening statement, priorto litigating the issue, was prejudicial ineffective assistance of counsel. Respondent argues that making promises about the defense evidence in opening statement and failing to deliver "does not constitute ineffective assistance of counsel per se," citing People v. Burnett (2003) 110 Cal.App.4th 868, 885, and that it is a fact-based determination to be assessed casebycase, citing People v. Stanley (2006) 39 Cal4th 913, 955.) (RB,p. 293.) Appellant does not disagree with these general propositions, but contends that under the specific facts of this case, counsel's failure to litigate the extent ofpermissible testimony by the prison expert Parks prior to promising his testimony in broad terms did amountto prejudicial ineffective assistance of counsel. Respondent complains that appellant cites no authority in support of his argument that counselis deficient for reciting to the jury expected testimony by a defense witnessprior to obtaining a ruling on the admissibility ofthat witness. (RB, p. 294.) This is incorrect. Appellant cited four cases for that proposition, all ofwhich found the deficient performance by counsel warranted reversal, and none ofwhich respondent addressed. (See AOB,pp. 317-18.) 118 Appellant disagrees with respondent's suggestion that this case presents a "parallel" to People v. Coddington (2000) 23 Cal.4th 529, 629- 30. In Coddington the claim on appeal was thattrial counsel, before calling defense witness Allen Hacker, should haveanticipated that the prosecution would offer an FBI agentto testify in rebuttal, and that trial counsel should have sought a ruling on the admissibility of the rebuttal witness before offering Hacker's testimony. This Court dismissed the argument, noting that the primary thrustofthe defense wasto persuadethe jury that the murders were not premeditated; and counsel obviously believed that Hacker's testimony was important to that defense, and presentation of his testimony was a reasonabletactic. (/d. at 629-30.) In this case, one ofthe two defense theories” at penalty phase was that appellant could adjust successfully to life in prison if the jury returned an LWOPverdict. Appellant does not question the reasonablenessofthat tactic. Nor does appellant claim that proficient performancebytrial counsel required them to anticipate what the prosecution might have done. Buttrial counsel themselves knew whattheir theory was and the expert witness they planned to present in support of that theory, because they announcedit to. the jury in opening statement: "[Jim Parks] will render the opinion thatif 22 The other defense theory wasthat appellant's abused and neglected background had profound neurological and physiological consequences rendering him less morally culpable. (See Arg. [X, above.) 119 sent to prison [appellant] will adjust to prison life." (41RT 11772-73.) Thesefacts are thus not "parallel" to those in Coddington, and Coddingtonis not helpful in resolving the claim presented here. This is not a case (such as People v. Burnett, 110 Cal.App.4th 868, 855, relied on by respondent at RB, p. 293) in which testimony was promised in opening statement, and then, because of the many contingencies overthe course ofthetrial, counsel made tactical decision not to call the promised witness, because calling that witness (the defendant) would result in a damaging credibility duel. Rather, the defense promised an expert witness, a former associate warden at San Quentin, and promised that he would provide the testimony that only someone with his qualifications could provide, that would support a major themein mitigation. Under these particular circumstances,trial counsel definitely should havelitigated the admissibility of this testimony prior to showcasing it in opening statement. First, it is commonplace to litigate the scope and boundaries of expert opinion testimonypriortotrial; expert witnesses are distinct in this sense from percipient and police officer witnesses. Second, reasonably proficient counsel would have been cognizantofthe applicable case law, which does indeed place limits on expert testimony regarding adjustmentto prison life, prison conditions, and security measures in place. 120 For example, People v. Thompson (1988) 45 Cal.3d 86, 138-39, and People v. Quartermain (1997) 16 Cal.4th 600, 632, cases decided 14 and five years prior to appellant's trial, held that testimony describing "future conditions ofconfinement" for an LWOPprisonerinvolved speculation and was thus inadmissible, whereas People v. Fudge (1994) 7 Cal.4th 1075, 1117, a case decided eight years before appellant's trial, held that expert testimonyas to the defendant's prospect for successful adjustment to prison life was "relevant and admissible mitigating evidence."”* Reasonably competent counsel would have been aware ofthese distinctions and limits, and would therefore havelitigated the scope of admissibility of Parks' testimony prior to opening statement. The failure to do so resulted in two adverse effects: (1) the trial court excluded the witness from testifying altogether, even though his opinion testimony as to successful adjustment should have been admitted; and (2) the ruling excluding the presentation ofthe witness came after counsel had promised his testimony, thus leaving the jury to speculate that Parks refused to testify, or that counsel decided not to present his testimony becauseit would notbe helpful. Respondent suggests that any error should be deemed harmless 3 Counsel is charged with the duty to know the law. (People v. Pope (1979) 23 Cal.3d 412, 424; People v. Zimmerman (1980) 102 Cal. App. 3d 647, 656-657; see also In re Neely (1993) 6 Cal.4th 901, 919.) 121 based on the court's instruction to the jury that statements by attorneys were not "evidence" "but rather simply a [sic] outline of what counselthinks the evidence will show." (RB, p. 295.) The instruction in no way curesthe harm;to the contrary, it exacerbates it. If counsel's statement was not evidence, but an indication ofwhat counsel thought the evidence would show, jurors would wonder why counsel thought there would be mitigating evidence that was not presented in any form. Respondent arguesthereis "no reason to assumethe jury necessarily concluded counsel was unable to producethe witness,or that the failure to produce the witness meant defendant would not be able to adjust to life in prison." Appellant contends that is precisely what the jury necessarily concluded — particularly in that the prosecutorrelied heavily in his closing penalty argument on the absence of this evidence, i.e., that appeliant would not adjustto prison life but would only "get worse." As this Court held in People v. Minifie, 13 Cal.4th at 1071, a prosecutor's argument exploiting trial error "tips the scale in favor of finding prejudice." Respondent also suggests that the month between the opening statement and the end of the penalty phase presentation of evidence "attenuated" any adverse effect from the promise ofParks’ testimony, noting also the "strength of the evidence against appellant in the penalty 122 phase.” (RB, p. 296.) Once again, the strength of the aggravating evidence, which consisted mostly dramatically of the violent jail escape attempt, increases rather than lessens the prejudicial impact of the error — an error which prevented appellant from mitigating the damaging aggravating evidence. Ashis final argumentin support of a finding ofharmlessness, respondent makes the point that appellant has not claimedthattrial counsel could have presented other evidence "vindicating appellant." (RB, p. 296) This argument is meaningless on appeal since appellant is forbidden under the rules of appellate procedure of showing or obtaining evidence other than that which appears on the appellate record. In sum, the exclusion ofthis evidence prejudiced appellant. It went to the heart of the defense case at penalty phase,i.e., that appellant could be a conforminglife prisoner. Error striking at the heart of the defenseis considered prejudicial. (See e.g., People v. Herring (1993) 10 Cal.App.4th 1066, 1077; People v. Lindsey (1988) 205 Cal.App.3d 112, 117; People v. Vargas (1973) 9 Cal.3d 470, 481.) / / 123 XVI. THE CUMULATIVE PREJUDICIAL IMPACT OF THE ERRORS AT THE GUILT AND PENALTY PHASES OF APPELLANT'S TRIAL VIOLATED HIS FIFTH, SIXTH, EIGHTH AND FOURTEENTH AMENDMENTRIGHTS TO DUE PROCESS, A FAIR TRIAL BY AN IMPARTIAL JURY AND A RELIABLE AND INDIVIDUALIZED SENTENCING DETERMINATION Appellant has shownthat error occurred at every stage of his trial from jury selection through the evidence phase, to judicial and jury misconduct. Appellant contendsthat the multiple errors mandate an analysis ofprejudice that takes into account the cumulative and synergistic impactofthe errors. Respondent countersthat since there was noerror, there cannot be cumulative prejudice. (RB, p. 297.) To the extent he addresses prejudice, he doesso in an error-by-error piecemeal analysis. This Court must consider the cumulative prejudicial impact ofthese various constitutionally-based errors, because the cumulative prejudicial impact can itself be a violation of federal due process. (Taylor v. Kentucky (1978) 436 U.S. 478, 487, fn. 15.) A trial is an integrated whole. This is particularly true of the penalty phaseofa capital case, where the jury is charged with making a moral, normative judgment, and the jurors are free to assign whatever moral or sympathetic value they deem appropriate to item ofmitigating and aggravating evidence. Thejurors are told to considerthe "totality" ofthe mitigating circumstances with the "totality" of the aggravating 124 circumstances. (See CALJIC No. 8.88.) Under these circumstances,the piecemeal prejudice analysis preferred by respondent makeslittle sense. Moreover,as stated in the Opening Brief, appellant has shown that the death sentence is unconstitutionally excessive and unreliable where, as here, the behavior that ended in Lora Sinner's death wasthe direct result of the unimaginable abuse and neglect inflicted on appellant during the vulnerable years of his mental and emotional development. Appellant's tragic background diminishes his blameworthiness and renders the sentence of death fundamentally unjust. / / 125 XVII. CALIFORNIA'S DEATH PENALTY STATUTE, AS INTERPRETED BY THIS COURT AND AS APPLIED AT APPELLANT'S TRIAL, VIOLATES THE UNITED STATES CONSTITUTION XVIII. APPELLANT'S DEATH PENALTYIS INVALID BECAUSE XIX. PENAL CODE SECTION 190.2 IS IMPERMISSIBLY BROAD APPELLANT'S DEATH PENALTYIS INVALID BECAUSE PENAL CODE SECTION190.3(A) AS APPLIED ALLOWS ARBITRARY AND CAPRICIOUS IMPOSITION OF DEATH IN VIOLATION OF THE FIFTH, SIXTH, EIGHTH, AND FOURTEENTH AMENDMENTSTO THE UNITED STATES CONSTITUTION CALIFORNIA'S DEATH PENALTY STATUTE CONTAINS NO SAFEGUARDSTO AVOID ARBITRARY AND CAPRICIOUS SENTENCING AND DEPRIVES DEFENDANTS OF THE RIGHT TO A JURY DETERMINATION OF EACH FACTUAL PREREQUISITE TO A SENTENCE OF DEATH; IT THEREFORE VIOLATES THE SIXTH, EIGHTH, AND FOURTEENTH AMENDMENTSTO THE UNITED STATES CONSTITUTION XXI. THE CALIFORNIA SENTENCING SCHEME VIOLATES THE EQUAL PROTECTION CLAUSE OF THE FEDERAL CONSTITUTION BY DENYING PROCEDURAL SAFEGUARDSTO CAPITAL DEFENDANTS WHICH ARE AFFORDED TO NON-CAPITAL DEFENDANTS XXII. CALIFORNIA'S USE OF THE DEATH PENALTYAS A REGULAR FORM OF PUNISHMENT FALLS SHORT OF INTERNATIONAL NORMS OF HUMANITY AND DECENCY AND VIOLATES THE EIGHT AND FOURTEENTH AMENDMENTS In People v. Schmeck (2005) 37 Cal.4th 240, a capital appellant presented a numberof often-raised constitutional attacks on the California 126 capital sentencing schemethat had been rejected in prior cases. Asthis Court recognized, a major purpose in presenting such argumentsis to preserve them for further review. (/d. at 303.) This Court acknowledged that in dealing with these attacksin 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 claimsin future cases, the Court authorized capital appellants to preserve these claims by “do[ing] no more than (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 (111) ask[ing] us to reconsider that decision.” (/d. at 304.) Accordingly, pursuant to Schmeckand in accordance with this Court’s own practice in decisions filed since then, appellant has, in Arguments XVII through XXII ofthe Opening Brief, identified the systemic and previously rejected claimsrelating to the California death penalty scheme that require reversal of his death sentence and requests the Court to reconsiderits decisions rejecting them. Appellant contends that these arguments are squarely framed and sufficiently addressed in Appellant's Opening Brief, and therefore makesnoreply. / / 127 CONCLUSION Wherefore, for the foregoing reasons, appellant respectfully requests that this Court reverse his convictions and remandfora fair trial on guilt, or in the alternative, vacate his sentence of death and remandfora fair penalty phase hearing. DATED: April [b 2012 Respectfully submitted, KATHY MORENO Attorney for Appellant 128 CERTIFICATE PURSUANT TO RULE OF COURT8.630(b) I, Kathy R. Moreno, attorney for Paul G. Smith, Jr., certify that this Appellant's Reply Brief does not exceed 102,000 words pursuant to California Rule of Court, rule 8.630(b). According to the Word word- processing program on which it was produced, the number ofwords contained herein is 26,903 and the font is Times New Roman 13. I herebype. underpenalty ofperjury, that the aboveis true and correct, this {lu ay ofApril, 2012, in Berkeley, CA. vroy0 KATHY R. MORENO 129 CERTIFICATE OF SERVICE I, Kathy Moreno,certify that I am over 18 yearsofage and not a - party to this action. I have my business address at P.O. Box 9006, Berkeley, CA 94709-0006. I have madeservice ofthe foregoing APPELLANT'S REPLY BRIEF by depositing in the United States mail on April, a true and full copy thereof, to the following: Attorney General, ATTN: Angelo Edralin P.O. Box 94425, Sacramento, CA 94244-2550 CAP,Attn Scott Kauffman _ 101 Second St., Ste. 600, San Francisco, CA 94105 Dist. Atty. Shasta County 1525 Court St., 3d floor Redding, CA 96001. . Superior Court Shasta Co., ATTN The Hon. James Ruggiero _ 1500 Court St., Redding CA 96001 Paul Smith, Jr. T 75092 © San Quentin, CA 94974 Therebydeclare that the aboveis true andcorrect. - Signed under penalty ofperjury this —day ofApril, 2012, in Berkeley, CA. __ KATHY MORENO
