PEOPLE v. HARDYAppellant’s Opening BriefCal.June 12, 2013SUPREME COURT COPY IN THE SUPREME COURT OF THE STATE OF CALIFORNIA : Siok THE PEOPLE, ) No.-$441342>- ) Plaintiff and Respondent, ) Los Angeles County ) Sup.Ct. No NA039436-02 VS. ) ) SUPREME COURT WARREN JUSTIN HARDY, ) | i ED ) Defendant and Appellant. : JUN 19 2013 Frank A. McGuire Clerk Automatic Appeal from the Judgment ofthe Superior Court” Deputy State of California, County of Los Angeles, No. NA039436-02 Hon. John David Lord, Judge Presiding APPELLANT’S OPENING BRIEF Susan K. Shaler State Bar No. 115762 Professional Law Corporation 991 Lomas Santa Fe Dr., Ste C, #112 Solana Beach, CA 92075 Telephone: 858.259.6737 Fax: 858.345.166 Attorney for Appellant WARREN JUSTIN HARDY DEATH PENALTY TABLE OF CONTENTS PAGE TABLE OF AUTHORITIES . 2.0.0.0... 0... ccc ccc ce eens 22 STATEMENT OF APPEALABILITY ............ 0.0.0.0 eee eens 1 INTRODUCTION .. 20...ccctenet eens 2 STATEMENT OF THE CASE ..........0 00.00 ccc cece cee cee ee ees 6 STATEMENT OF FACTS 2.0.0.0... ccc cc cece ences 10 A. Guilt Phase. 2...cccce cnet ee ee eas 10 1. Prosecution Evidence. ...... 2.0.0... ce cece eee eee nee 10 a. The Three Defendants. ....................04. 10 b. Initial Discovery ofthe Crime Scene............. 10 C. The Food Stamp Booklet. .................0..4. 14 d. Search and Seizure at Hardy’s Home. ........... 16 e. Hardy’s Statements. .............0.000e ee eee“17 f. Forensic Evidence. ...... 0.0.0... cece eee eee 29 1. The Autopsy. ....... 0... cc eee eee eee 29 ii. DNA Evidence. ............ 0.0.00 cea 37 B. Penalty Phase. 0.0.0...eecece nett eens 39 1. Prosecution Evidence. .......... 0... c eee eee eee 39 a. The 1996 Robbery Prior. ............... 00.005 39 b. 2006 Injury to Hardy’s Son. ................00. 41 C. Events Just Before the Crime. ................. 45 d. Sigler’s Son’s Impact.......... 2.0.0... 0c eee 46 e. Hardy’s prior... 2.0... 0. cece cence eee 48 2. Defense Evidence. ... 0.0.2.0... ccc cece eens 49 a. Forensic Expert Testimony. ................... 49 b. — Hardy’s Cooperation in a 1997 Gang Murder Prosecution. ©... 0... 0... cece cee ee eens 61 c. Hardy’s Family Life...................0000005 62 d. Hardy’s Work and Church Activities. ........... 69 C. Prosecution Rebuttal. 2.0.0...kccee eee 71 JURY SELECTION ARGUMENTS... 1...ecce eee 76 ARGUMENT........ 20...cccetenet nen eens 76 I II REVERSAL OF THE JUDGMENTOF DEATH IS REQUIRED BECAUSE TWO PROSPECTIVE JURORS WHO WERE ABLE TO CONSIDER ALL SENTENCING ALTERNATIVES AND FOLLOW THE TRIAL COURT’S INSTRUCTIONS WERE IMPROPERLY EXCUSED FOR CAUSE, IN VIOLATION OF HARDY’S FIFTH, SIXTH, EIGHTH, AND FOURTEENTH AMENDMENTRIGHTS TO A FAIR TRIAL, A REPRESENTATIVE JURY, A RELIABLE DETERMINATION OF GUILT AND PENALTY, AND DUE PROCESS.............. 0.02.00 0065 76 A. Summary of Argument. ......... 0.0.0.0. cee ee eee 76 B. Under Controlling Legal Authorities, Granting Challenges for Cause Against Two Jurors Was Error Because Those Jurors’ Viewson the Death Penalty Did Not Prevent, or Substantially Impair, Any One of Them from Considering or Imposing a Sentence of Death. ....... 0.0... cece ete eee 77 C. Relevant Voir Dire Proceedings. .................045. 81 1. Prospective Juror DD, Number 6840. ........... 81 2. Prospective Juror KF, Number 4283. ............ 95 D. Reversal Is Required Because Two Prospective Jurors Who Merely Viewed the Decision to Impose Death as an Awesome Responsibility Were Improperly Excluded ............ 109 E. The Error in Excusing Two Qualified Jurors Requires Reversal of Hardy’s Death Sentence ................. 113 REVERSAL OF THE JUDGMENT OF DEATHIS REQUIRED BECAUSE APPLICATION OF THE SUBSTANTIAL IMPAIRMENT STANDARD TO DETERMINE DEATH- QUALIFICATION OF PROSPECTIVE JURORS VIOLATED HARDY’S FIFTH, SIXTH, EIGHTH AND FOURTEENTH AMENDMENTRIGHTSTO A FAIR TRIAL, A REPRESENTATIVE JURY, A RELIABLE DETERMINATION OF GUILT AND PENALTY, AND DUE PROCESS. ........... 115 A. Summary ofArgument. ..... 0.0.0... cee cece ee eee 115 il Il Substantial Impairment Standard for Death-qualification of JUPOTS.cetteeee e tees 116 Relevant Background Information of Prospective Jurors. . 116 1. Prospective Jurors DD and KF. ............... 116 2. Prospective Juror ML, Number 0256. .......... 116 Sixth Amendment Jurisprudence Requires a Re-examination of the Witt Standard to Further a Process of Capital Jury Selection That Will Result in a Jury That Is a Cross-section of the Community, and Represents the Consciousofthe Community... 0...cece eee nes 122 1. The Substantial Impairment Test of Witt Has Proven Inconsistent with the Rationale of the Decision, and Fails to Result in Capital Juries That Represent the Conscience of the Community ................ 122 2. Evolving Sixth AmendmentJurisprudence Requires a Re-examination of the Substantial Impairment Standard. 2.0... 2.eeeeee 127 HARDY’S CONVICTIONS, AND THE JUDGMENTOF DEATH, MUST BE REVERSED BECAUSE THE TRIAL COURT FAILED TO APPLY THE CORRECT STANDARD TO HARDY’S BATSON/WHEELER MOTION AND ERRED IN CONCLUDING THAT THE CIRCUMSTANCES DID NOT ESTABLISH A PRIMA FACIE CASE OF DISCRIMINATORY USE OF PEREMPTORY CHALLENGES DESPITE THE PROSECUTOR’S IMPROPER USE OF PEREMPTORY CHALLENGES AGAINST THREE AFRICAN AMERICAN JURORS. THE COURT’S RULING VIOLATED THE REPRESENTATIVE CROSS- SAMPLE GUARANTEEOF THE CALIFORNIA CONSTITUTION, AND HARDY’S FEDERAL CONSTITUTIONAL RIGHTS TO DUE PROCESS, EQUAL PROTECTION, AN IMPARTIAL JURY, A FAIR TRIAL, A TRIAL BY JURY DRAWN FROM A REPRESENTATIVE CROSS-SECTION OF THE COMMUNITY, A RELIABLE FINDING OF GUILT AND SENTENCE, AND FUNDAMENTAL FAIRNESS UNDERTHEFIFTH, SIXTH, EIGHTH, AND FOURTEENTH AMENDMENTS............. 00000 e eens 134 A. Summary ofArgument. .......... 00.0.0. c eee eee 134 B. Standard of Review. 1.1.0... 0.0... cece cece eee ees 137 C. Law Governing Exclusion of Jurors Based on Race. .... 137 ill 1. Introductory and Procedural Matters ........... 137 2. The Three-stage Analysis ofBatson/Wheeler. .... 140 Analysis of the Juror Questionnaires, and Voir Dire, of the Three Black Prospective Jurors That the Prosecutor Peremptorily Challenged Demonstrates an Unconstitutional Discriminatory Purpose. ......... 00.000: e ee eee eee 145 1. FG:Prospective Juror 2041. ............0.000. 147 a. FG’s Questionnaire. ...............205. 147 b. FG’s Voir Dire Questioning. ............ 149 C. Analysis of the Prosecutor’s Peremptory Challenge. ... 02... ... cece eee eee 150 2. DB: Prospective Juror 3747.0... 0.0.0.2 ce eee eee 152 a. DB’s Questionnaire. ..............005- 152 b. DB’s Voir Dire Questioning. ............ 154 c. Analysis of the Prosecutor’s Peremptory Challenge. ........ 0.0.0.0 e cece eee eee 160 3. MH:Prospective Juror 4826. .............5065 163 a. MH’s Questionnaire. .............00055 163 b. MH?’s Voir Dire. ........... 000002 e ee 164 C. Analysis of the Prosecutor’s Peremptory Challenge. ........ 0... 0. cece ee eee eee 165 The Record Showsa Clear Inference of Group Bias from the Prosecutor’s Peremptory Challenges to Three Black Prospective Jurors, Which Resulted in No Black Person Being Seated on Hardy’s Jury ..... 0.0... cee eee eee 167 1. There Was a Prima Facie Showing That the Prosecutor Systematically Used Peremptory Challenges to Remove Black Prospective Jurors ............. 168 2. The Prosecutor’s Explanations for Using Peremptory Challenges to Remove Three Prospective Black Jurors Were Pretextual ........... 0... e cece eee ee 170 Reversal Is Required. ........ 0... 0. cece cee eee eee 175 iv GUILT PHASE TRIAL EVIDENTIARYISSUES ................. 178 IV THE JUDGMENT OF DEATH, AND THE JUDGMENT OF GUILT ON ALL COUNTS SHOULD BE REVERSED BECAUSE THE TRIAL COURT ERRONEOUSLY EXCLUDED RELEVANT DEFENSE EVIDENCE OF THE VICTIM’S BLOOD LEVELS OF METHAMPHETAMINE AND ALCOHOL. THE ERROR VIOLATED HARDY’S RIGHT TO DUE PROCESS OF LAW UNDER THE FIFTH AND FOURTEENTH AMENDMENTS,HIS RIGHTS TO EFFECTIVE ASSISTANCE OF COUNSEL AND A JURY TRIAL UNDER THE SIXTH AND FOURTEENTH AMENDMENTSAND THE STATE CONSTITUTION, AND THE PROHIBITION AGAINST IMPOSITION OF CRUEL AND UNUSUAL PUNISHMENTIN THE EIGHTH AND FOURTEENTH AMENDMENTS, AND ARTICLEI, SECTION 17, OF THE CALIFORNIA CONSTITUTION .............. 178 A. Summary ofArgument. .......... 0.0... e cece eee eee 178 B. Procedural Background. ............... 0.0 c eee eeee 180 C. The Trial Court’s Ruling Excluding Evidence of the Victim’s Toxicology Report Was Error, and DeprivedHardy of His Right to a Fair Trial and Federal and State Due Process of Law,His Sixth and Fourteenth Amendments Rightto a Jury Determination of the Facts, His Right of Confrontation under the Sixth and Fourteenth Amendments and the California Constitution, and Violated the Prohibition Against Cruel and Unusual Punishmentin the Eighth and Fourteenth Amendments and the California Constitution .......... 182 THE JUDGMENT OF DEATH, AND THE JUDGMENT OF GUILT ON COUNTS 1, AND 3 THROUGH8, SHOULD BE REVERSED BECAUSE THE TRIAL COURT ERRONEOUSLY ADMITTED TESTIMONIAL HEARSAY BY PERMITTING ONE DEPUTY CORONER TO TESTIFY ABOUT PROCEDURES PERFORMED BY THE DEPUTY’S SUPERVISOR. THE ERROR VIOLATED HARDY’S RIGHT TO DUE PROCESS OF LAW UNDER THE FIFTH AND FOURTEENTH AMENDMENTS, AND HIS RIGHTS TO CONFRONT WITNESSES AND TO EFFECTIVE ASSISTANCE OF COUNSEL AND A JURY TRIAL UNDER THE SIXTH AND FOURTEENTH AMENDMENTS AND THE STATE CONSTITUTION, AND THE PROHIBITION VI AGAINST IMPOSITION OF CRUEL AND UNUSUAL PUNISHMENTIN THE EIGHTH AND FOURTEENTH AMENDMENTS, AND ARTICLEI, SECTION 17, OF THE CALIFORNIA CONSTITUTION. ......... 000.00 ce ee ee eee 190 A. Summary ofArgument. .... 0.0.0.0... cece ee eee eee 190 B. The Issue Is Cognizable on Appeal. ................. 193 C. Standard of Review. ......... 0... cece cece eee 194 D. Djabourian’s Testimony Was Inadmissible Testimonial Hearsay. 2.0... 0. cece ete eee ene 195 E. Hardy’s Right to Confrontation Was Violated by His Inability to Cross-examine Pena and C.L.H., WhoParticipated in the Autopsy, and Collected Evidence Presented at Trial..... 197 1. Controlling United States Supreme Court Authorities. 20.0.0... 2. eee eee eee 197 2. This Court’s Decisions in Geier, Dungo, and Lopez Do Not Require a Different Result, and Should Be Reexamined. ....... 0.0... cece eee eee 202 a. Analysis of this Court’s Decisions. ....... 203 b. The Facts in Dungo Are Distinguishable, and Therefore the Decision Does Not Control the Outcomein this Case. ..............0.. 207 F. The Erroneous Admission of the Testimonial Hearsay Through Djabourian’s Testimony about Pena’s and C.L.H.’s Work During the Autopsy Prejudiced Hardy........... 214 THE TRUE FINDINGS TO THE SPECIAL CIRCUMSTANCES UNDER PENAL CODE SECTION 190.2, SUBDIVISION (A)(17), AND THE JUDGMENT OF DEATH, SHOULD BE REVERSED BECAUSE THE EVIDENCE FAILED TO PROVE HARDY COMMITTED ANY OF THE SPECIAL CIRCUMSTANCE FELONIES FOR AN INDEPENDENT FELONIOUS PURPOSE IN VIOLATION OF HARDY’S FEDERAL AND STATE CONSTITUTIONAL RIGHTS TO DUE PROCESS OF LAW, TO A JURY TRIAL, A RELIABLE GUILT AND DEATH VERDICT, AND HIS RIGHTS AGAINST IMPOSITION OF CRUEL AND UNUSUAL PUNISHMENTIN THE FEDERAL AND STATE CONSTITUTIONS. ............ 02 cece eee teens 219 A. Summary of Argument. ................eee e eee 219 B. Legal Standards Governing True Findings to Special Circumstances. .. 0...eeeeee eee 221 vi Vil O O E. Application of Authorities to the Instant Case. ......... 228 The Federal and State Due Process Clause Required the Prosecution to Prove Beyond a Reasonable Doubt That Hardy Had an Independent Felonious Purpose When He Committed Each of the Special Circumstance Felonies Alleged under Section 190.2, Subdivision (A)(17) and (18) ........... 230 The Judgment of Death must Be Reversed. ............ 233 THE JUDGMENT OF GUILT TO COUNT2, ROBBERY, SHOULD BE REVERSED, AND THE SPECIAL CIRCUMSTANCEFINDING OF A ROBBERY DURING THE COMMISSION OF A MURDER AND THE JUDGMENT OF DEATH SHOULD BE VACATED, BECAUSE THE EVIDENCE WASINSUFFICIENT AS A MATTER OF LAW TO PROVE THAT HARDY TOOK THE VICTIM’S PROPERTY IN A ROBBERY, OR TOOK THE PROPERTY WHILE THE VICTIM WAS ALIVE 2...ccceee ene n en ens 245 A. Summary of Argument. .......... 0.00. c eee eee ee 245 B. Standard of Review. 1.0... 0.0... cece cece een eens 246 C. There Was No Substantial Evidence of Robbery. ....... 248 1. Robbery, Generally. ........... 0.000000 eae 248 2. There Was No Substantial Evidence ofAny Intent to Take Property Before the Use of Force or Fear .. . 249 3. There Was No Substantial Evidence That the Amount of Force or Fear Exceeded What Was Necessary to Take the Food Stamps and Clothes ............ 251 4. There Was NoSubstantial Evidence That the Property Was Taken While Sigler Was Still Conscious or Alive 20. nee ens 253 Vil GUILT PHASE INSTRUCTIONISSUES .................02005. 256 VILL THE JUDGMENT OF DEATH, AND THE JUDGMENTOF IX GUILT ON COUNT 1 SHOULD BE REVERSED BECAUSE THE TRIAL COURT INSTRUCTED THE JURY WITH AN ERRONEOUSDEFINITION OF FELONY MURDER, WHICH IMPERMISSIBLY PERMITTED A GUILTY VERDICT BASED ON IMPROPER LEGAL THEORIES, IN VIOLATION OF HARDY’S RIGHT TO DUE PROCESS OF LAW UNDER THE FIFTH AND FOURTEENTH AMENDMENTS, RIGHT TO A JURY TRIAL UNDER THE SIXTH AND FOURTEENTH AMENDMENTSAND THE STATE CONSTITUTION, AND THE PROHIBITION AGAINST IMPOSITION OF CRUEL AND UNUSUAL PUNISHMENTIN THE EIGHTH AND FOURTEENTH AMENDMENTS, AND ARTICLEI, SECTION 17, OF THE CALIFORNIA CONSTITUTION. ............. 256 A. Summary of Argument. .......... 0.00... ce ee eee 256 B. Standard of Review. ......... 06... cee cee eee eee 258 C. The Modified Version of Caljic No. 8.21 Impermissibly Permitted Jurors to Find Hardy Guilty of Murder Based on Several Improper Legal Theories ................... 259 D. The Trial Court’s Deficient Instructions Violated Hardy’s Federal and State Constitutional Rights .............. 263 E. The ErroneousInstruction Was Prejudicial and Requires Reversal of Count 1 and the Judgment of Death ........ 265 THE JUDGMENT OF DEATH, AND THE JUDGMENTSOF GUILT ON COUNTS | THROUGH 7, SHOULD BE REVERSED BECAUSE THE TRIAL COURT INSTRUCTED THE JURY WITH AN ERRONEOUSDEFINITION OF AIDING AND ABETTINGLIABILITY, WHICH IMPERMISSIBLY PERMITTED GUILTY VERDICTS BASED ON IMPROPER LEGAL THEORIES, IN VIOLATION OF HARDY’S RIGHT TO DUE PROCESS OF LAW UNDER THE FIFTH AND FOURTEENTH AMENDMENTS, RIGHT TO A JURY TRIAL UNDER THE SIXTH AND FOURTEENTH AMENDMENTS AND THE STATE CONSTITUTION, AND THE PROHIBITION AGAINST IMPOSITION OF CRUEL AND UNUSUAL PUNISHMENTIN THE EIGHTH AND FOURTEENTH Vill AMENDMENTS, AND ARTICLEI, SECTION 17, OF THE CALIFORNIA CONSTITUTION. ..............0..2 00005 271 A. Summary of Argument. ......... 00.0... e cece eee 271 B. The Instruction on Aiding and Abetting............... 272 C. The Law Governing the Natural and Probable Consequences Theory ofAider and Abettor Liability Requires a Nexus Betweenthe Offense of Conviction, the Target and Non- target Offenses, and the Offenses Linked by a Natural and Probable Consequence. .......... 0.000 c cece eee eee 274 The ErroneousInstruction on Aiding and Abetting Violated Hardy’s Federal and State Constitutional Rights, and Requires Reversal of Counts 1 Through 7, and the Judgmentof Death. 0...ccccee een e eens 282 THE JUDGMENT OF DEATH, AND THE JUDGMENT OF GUILT ON COUNT | SHOULD BE REVERSED BECAUSE THE VERDICT FORM, COMBINED WITH THE JURY INSTRUCTIONS, INCORRECTLY PERMITTED THE JURY TO FIND HARDY GUILTY OF FIRST DEGREE MURDER BASED ON A LEGAL THEORY THAT SUPPORTS ONLY SECOND DEGREE MURDER, AND RESULTED IN A WRITTEN VERDICT FORM THAT FAILS TO REFLECT THE FINDINGS OF FACT REQUIRED FOR FIRST DEGREE MURDER, IN VIOLATION OF HARDY'S RIGHT TO DUE PROCESS OF LAW UNDER THE FIFTH AND FOURTEENTH AMENDMENTS, RIGHT TO A JURY TRIAL UNDER THE SIXTH AND FOURTEENTH AMENDMENTSAND THE STATE CONSTITUTION, AND THE PROHIBITION AGAINST IMPOSITION OF CRUEL AND UNUSUAL PUNISHMENTIN THE EIGHTH AND FOURTEENTH AMENDMENTS, AND ARTICLEI, SECTION 17, OF THE CALIFORNIA CONSTITUTION. ....... 0.00. eee cece eens 284 A. Summary of Argument. ........... 0.0... cee eee 284 B. The Hybrid Verdict Form, for Which the Trial Court Gave No Clarifying Jury Instructions, Resulted in a Guilty Verdict on Count 1 That Could Rest on an Impermissible Lega! Theory, That Is, That Hardy Was Guilty Based on Acting with Reckless Indifference to Human Life ................ 286 1. The Jury Instructions Failed to Clarify the Concepts of Aiding and Abetting, and Acting in Reckless Disregard - 1X XI for Human Life on the Verdict Form Applied Only to the Special Circumstances, and Notto the Issue of Guilt.0 eee tenes 289 2. The Jury Instructions Failed to Clarify Jurors Had to First Determine Hardy’s Guilt of First Degree Murder Before Making the Selection AorB ........... 292 3. The Hybrid Verdict Form Violated Penal Code Sections 1150 Through 1154, and California Case Authorities, Resulting in a Completed Form That Fails to Reflect the Required Findings of Fact to Sustain a Guilty Verdict on First Degree Murder. ......... 293 C. Hardy WasPrejudiced by the Flawed Verdict Form, and Lack of Clarifying Instruction, Which Violated Hardy’s Federal Constitutional Rights and Requires Reversal .......... 297 THE JUDGMENT OF DEATH, AND THE JUDGMENT OF GUILT TO COUNTS1 AND 8, AND THE TRUE FINDINGS ON THE TORTURE ALLEGATIONS SHOULD BE REVERSED BECAUSETHE TRIAL COURT FAILED TO INSTRUCT THE JURY THAT AIDING AND ABETTINGLIABILITY AND TORTURE REQUIRED SPECIFIC, NOT GENERAL INTENT, AND THEREFORE THE INSTRUCTIONS IMPERMISSIBLY PERMITTED GUILTY VERDICTS WITHOUT A JURY FINDING THAT HARDY HAD THEREQUISITE SPECIFIC INTENT,IN VIOLATION OF HARDY’S RIGHT TO DUE PROCESS OF LAW UNDER THE FIFTH AND FOURTEENTH AMENDMENTS, RIGHT TO A JURY TRIAL UNDER THE SIXTH AND FOURTEENTH AMENDMENTS AND THE STATE CONSTITUTION, AND THE PROHIBITION AGAINST EX POST FACTO AND THE IMPOSITION OF CRUEL AND UNUSUAL PUNISHMENTIN THE EIGHTH AND FOURTEENTH AMENDMENTS, AND ARTICLEI, SECTION 17, OF THE CALIFORNIA CONSTITUTION. .............. 00.0 e eae 302 A. Summary of Argument. ........0.. 2... c eee eee eee 302 B. Aiding and Abetting and Torture Require Specific Intent 305 C, The Jury Instructions Omitted Aiding and Abetting and Torture from the Crimes or Allegations Requiring Specific Intent, and Incorrectly Identified Torture as a Crime Requiring Only General Intent .................004. 307 XII XI D. The ErroneousInstructions Prejudiced Hardy by Permitting a Verdict of Guilt on Count 1 Based on Aiding and Abetting, and on Count8, and the Torture Allegations Without Any Finding of Specific Intent to Support the Verdicts ...... 311 THE JUDGMENT OF DEATH AND THE JUDGMENT OF GUILT ON COUNT 1 SHOULD BE REVERSED BECAUSE THE TRIAL COURT INSTRUCTED THE JURY IMPROPERLY ON FELONY MURDER THAT INCLUDED TORTURE, MURDER BY TORTURE, TORTURE AS A SPECIAL CIRCUMSTANCE, AND TORTURE, BASED ON CHANGESIN THE LAW THAT HAD NOT BEEN PASSED AT THE TIME OF THE OFFENSES. THE INSTRUCTION IMPERMISSIBLY PERMITTED A GUILTY VERDICT BASED ON AN IMPROPER LEGAL THEORY,IN VIOLATION OF HARDY’S RIGHT TO DUE PROCESS OF LAW UNDER THE FIFTH AND FOURTEENTH AMENDMENTS, RIGHT TO A JURY TRIAL UNDER THE SIXTH AND FOURTEENTH AMENDMENTSAND THE STATE CONSTITUTION, AND THE PROHIBITION AGAINST EX POST FACTO AND THE IMPOSITION OF CRUEL AND UNUSUAL PUNISHMENTIN THE EIGHTH AND FOURTEENTH AMENDMENTS, AND ARTICLEI, SECTION 17, OF THE CALIFORNIA CONSTITUTION .................. 0.000. 316 A. Summary of Argument. .............. 00 cece eee 316 B. The Erroneous Torture Instructions. ................. 318 THE JUDGMENT OF GUILT TO COUNT 2, ROBBERY, THE SPECIAL CIRCUMSTANCE FINDING OF THE COMMISSION OF ROBBERY DURING A MURDER, THE FIRST-DEGREE MURDER CONVICTION, AND THE JUDGMENT OF DEATH SHOULD BE VACATED, BECAUSE THE TRIAL COURT FAILED TO INSTRUCT THE JURY ON THE LESSER INCLUDED OFFENSE OF THEFT, IN VIOLATIONOF:(1) HARDY’S RIGHT TO DUE PROCESS OF LAW UNDER THE FEDERAL AND STATE CONSTITUTIONS;(2) HARDY’S RIGHT TO A JURY TRIAL UNDER THE FEDERAL AND STATE CONSTITUTIONS, AND (3) THE FEDERAL AND STATE PROHIBITIONS AGAINST IMPOSITION OF CRUEL AND UNUSUAL PUNISHMENT. ...........0........005. 324 A. Summary of Argument. ......... 0.0... ce cee eee eee 324 x1 XIV XV B. Standard of Review. ........ 0.0... cece cece eee eee 326 C. The Trial Court Had a Sua Sponte Duty to Instruct the Jury on Theft as a Lesser Included Offense to Robbery. ....... 326 D. The Duty to Instruct on Theft Applied Equally Both to Felony Murder and the Robbery Special Circumstance ........ 333 E. The Error Was Prejudicial and Requires Reversal. ...... 350 REVERSAL ON COUNT 1, AND THE JUDGMENTOF DEATH, IS REQUIRED BECAUSE THE INSTRUCTIONS GIVEN BY THE TRIAL COURT MISSTATED THE LAW, BY FAILING TO INSTRUCT THE PROSECUTION HAD TO PROVE BEYOND A REASONABLE DOUBT THE ABSENCE OF UNREASONABLE HEAT OF PASSION OR PROVOCATION THAT RENDERED HARDY UNABLE TO DELIBERATE AND PREMEDITATE, AND THEREBY VIOLATED HARDY’S RIGHT TO DUE PROCESS OF LAW UNDERTHE FIFTH AND FOURTEENTH AMENDMENTS, AND RIGHT TO A JURY TRIAL UNDER THE SIXTH AND FOURTEENTH AMENDMENTS, AND ARTICLEI, SECTIONS 7 AND 15 OF THE CALIFORNIA CONSTITUTION. ....... 0... eee cc cece eens 352 A. Summary ofArgument. ........ 2... 0. 0c ce eee eee eee 352 B. Standard of Review. ......... 0.0. eee eee eee eee 354 C. The Issue Is Cognizable on Appeal. ................. 354 D. Applicable Legal Principles Required Additional Instruction on the Concept of Provocation .................0065 355 1. Incendiary Racial Remarks Constitute Legal Provocation. ......... 00. eee ee eens 355 2. The Instructions Failed to Explain the Relationship Between Provocation and First Degree Murder .. . 363 E. The Failure to Instruct Fully on the Effect of Provocation on Premeditation and Deliberation Was Prejudicial and Requires Reversal. ........-.. 0-2 scene e368 THE JUDGMENT OF DEATH, THE SPECIAL CIRCUMSTANCESFINDING THAT HARDY COMMITTED MURDERIN THE COMMISSION OF A KIDNAPPING AND A KIDNAPPING FOR RAPE, THE SECTION667.61, SUBDIVISION (D) KIDNAPPING ALLEGATIONS TO COUNTS 4, 5,6 AND 7, AND THE JUDGMENTOF GUILT ON COUNT3, SHOULD BE REVERSED BECAUSE THE TRIAL COURT xii XVI INSTRUCTED THE JURY WITH AN ERRONEOUS DEFINITION OF ASPORTATION, IN VIOLATION OF HARDY’S RIGHT TO DUE PROCESS OF LAW UNDER THE FIFTH AND FOURTEENTH AMENDMENTS, RIGHT TO A JURY TRIAL UNDER THE SIXTH AND FOURTEENTH AMENDMENTS AND THE STATE CONSTITUTION, AND THE PROHIBITION AGAINST IMPOSITION OF CRUEL AND UNUSUAL PUNISHMENTIN THE EIGHTH AND FOURTEENTH AMENDMENTS, AND ARTICLEI, SECTION 17, OF THE CALIFORNIA CONSTITUTION. ............ 375 A. Summary ofArgument. ........ 0.0... cece cece eee 375 B. Standard of Review. ......... 0... ce cece eee eee 377 C. Summary of Charges and Instructions Involving Kidnapping. ..... 0.0...eeecee eens 377 D. The Issue Is Cognizable on Appeal. ................. 383 E The Trial Court’s Use of Post-Martinez Instructions Were Improper Because the Offenses Pre-dated Martinez ..... 383 F, The Instructions Used to Define Asportation Violated Hardy’s Federal and State Constitutional Rights .............. 385 G. The Error Was Prejudicial. ................0...0005. 387 H. The Judgment of Death must Be Reversed............. 392 THE JUDGMENT OF DEATH, THE SPECIAL CIRCUMSTANCE FINDING THAT HARDY COMMITTED MURDERIN THE COMMISSION OF RAPE WITH A FOREIGN OBJECT, AND THE JUDGMENTSOF GUILT ON ALL COUNTS SHOULD BE REVERSED BECAUSE THE TRIAL COURT IMPERMISSIBLY FAVORED THE PROSECUTION BY INSTRUCTING 35 TIMES USING THE PROSECUTION’S UNDULY PREJUDICIAL CHARACTERIZATION OF THE FOREIGN OBJECT,IN VIOLATION OF HARDY’S RIGHT TO DUE PROCESS OF LAW UNDER THE FIFTH AND FOURTEENTH AMENDMENTS, RIGHT TO A JURY TRIAL UNDER THE SIXTH AND FOURTEENTH AMENDMENTS AND THE STATE CONSTITUTION, AND THE PROHIBITION AGAINST IMPOSITION OF CRUEL AND UNUSUAL PUNISHMENTIN THE EIGHTH AND FOURTEENTH AMENDMENTS, AND ARTICLEI, SECTION 17, OF THE CALIFORNIA ~ CONSTITUTION. ....... 0... ccc cece eens 393 A. Summary of Argument. .......... 0.00. cee cece ee ees 393 xiii B. Standard of Review. ......... 2... ccc eee eee eee 395 C. The Impermissibly Prejudicial Pinpoint Instruction Favored the Prosecution ......... 0... eee eee eee 395 D. The Prejudicial Instructions Deprived Hardy of His State and Federal Constitutional Rights to a Trial by Jury ........ 399 E. The Instructional Error Requires Reversal. ............ 400 PENALTY PHASE ......... 000: cece eee eee te teen ene 403 XVIL THE JUDGEMENT OF DEATH SHOULD BE REVERSED BECAUSE, OVER DEFENSE OBJECTION, THE TRIAL COURT ADMITTED IRRELEVANT NON-STATUTORY EVIDENCE IN AGGRAVATION, AND THEREBY VIOLATED HARDY’S FIFTH, SIXTH, EIGHTH AND FOURTEENTH AMENDMENT RIGHTS TO DUE PROCESS, A FAIR TRIAL, AND A REASONABLE DETERMINATION OF PENALTY. ........ 403 A. Summary ofArgument. ....... 0.0... eee eee 403 B. Relevant Procedural Background. ................... 404 C. The Gang Related Evidence Was Improper Character Evidence and Improper Rebuttal .................0.. All XVIII THE JUDGEMENT OF DEATH SHOULD BE REVERSED BECAUSE THE TRIAL COURT PRECLUDED CROSS- EXAMINATION OF A PROSECUTION WITNESS CONCERNING A PRIOR INCIDENT DURING WHICH HARDY’S SON SUFFERED A STABBING INJURY. THE ERROR DENIED HARDY THE RIGHT TO PRESENT MITIGATING EVIDENCE DURING THE PENALTY PHASE OF THE TRIAL, AND THEREBY VIOLATED HARDY’SFIFTH, SIXTH, EIGHTH AND FOURTEENTH AMENDMENTRIGHTS TO CONFRONT WITNESSES, PRESENT EVIDENCE, DUE PROCESS, A FAIR TRIAL, AND A REASONABLE DETERMINATION OF PENALTY...........20. 0002 ee eee 423 A. Summary ofArgument. .. 1.6.0.0... 0. cece cee ee eee 423 B. Relevant Procedural Background. ................... 424 C. Cross-examination of the Officer to Show Lack ofAction by the Department of Child Services Was Proper underthe Doctrine of Completeness and as Mitigation.......... . 426 XIV The Trial Court’s Preclusion of Cross-examination Concerning the Department of Child Services Results of Investigation Violated the Prohibition Against Imposition of Cruel and Unusual Punishment in the Eighth and Fourteenth Amendments, and Article I, Section 17 of the California Constitution, and must Result in Reversal of the Judgment of Death. 0...ccccece e eee n eae 429 XIX THE PROSECUTOR’S USE OF DIFFERENT AND WHOLLY INCONSISTENT THEORIES AT THE PENALTY PHASES OF THE SEPARATE TRIALS OF HARDY AND HIS SEVERED CO- DEFENDANT KEVIN PEARSON VIOLATED HARDY’S TRIAL AND DUE PROCESS RIGHTS UNDER THE SIXTH AND FOURTEENTH AMENDMENTS AND ALSO RESULTED IN A VIOLATION OF THE EIGHTH AMENDMENTPROHIBITION AGAINST CRUEL AND UNUSUAL PUNISHMENT REQUIRING VACATION OF THE DEATH PENALTY SENTENCE..... 00.00teee e eens 432 A. Summary of Argument. ............... 00000 eee eeee 432 B. The Prosecution’s Inconsistent Theories at the Penalty Phase Trials of Separate Defendants in Hardy’s Case ......... 433 C. Inconsistent Prosecution Positions at Separate Penalty Phase Trials Violated Due Process ................000000. 441 1. Under In re Sakarias (2005) 35 Cal.4th 140, the Prosecutor’s Use of Inconsistent Penalty Theories Violated Due Process ............. 0.0.0 0000- 443 2. Federal Authorities Hold That Due Process Is Violated When a Prosecutor Uses Inconsistent Theoriesin | Separate Trials When No New EvidenceJustifies the Change... 02...cece cee ees 452 3. The United States Supreme Court Precedents of Bradshaw v. Stumpf(2005) 545 U.S. 175 [135 S.Ct. 2398, 162 L.Ed.2d 143] and Calderon v. Thompson (1998) 523 U.S. 538, 550 [118 S.Ct. 1489, 140 L.Ed.2d 728], Compel the Conclusion That the Prosecution’s Use of Inconsistent Theories at the Penalty Phases Violated Due Process........... 455 Hardy WasPrejudiced by the Prosecutor’s Inconsistent Theories. 2.0... cece teen e eens 458 XV XX THE CUMULATIVE EFFECT OF GUILT AND PENALTY PHASE ERRORS WASPREJUDICIAL AND WARRANTS REVERSAL OF HARDY’S DEATH SENTENCE. .......... 461 XXII THE JUDGMENT OF DEATH SHOULDBESET ASIDE BECAUSE:(1) THE CALIFORNIA DEATH PENALTY STATUTE, AS A MATTER OF LAW, VIOLATES THE RIGHT TO DUE PROCESS OF LAW IN THE FIFTH AND FOURTEENTH AMENDMENTSOF THE UNITED STATES CONSTITUTION, AND ARTICLEJ, SECTION 15 OF THE CALIFORNIA CONSTITUTION, THE GUARANTEE OF THE RIGHT TO A JURY TRIAL IN THE SIXTH AND FOURTEENTH AMENDMENTSOF THE UNITED STATES CONSTITUTION, AND ARTICLE I, SECTION 15 OF THE CALIFORNIA CONSTITUTION, THE PROHIBITION AGAINST THE IMPOSITION OF CRUEL AND UNUSUAL PUNISHMENTIN THE EIGHTH AND FOURTEENTH AMENDMENTSAND ARTICLEI, SECTION 17 OF THE CALIFORNIA CONSTITUTION; AND (2) THE IMPOSITION OF DEATH PENALTY, AS A MATTER OF LAW, VIOLATES THE AFOREMENTIONED CONSTITUTIONAL PROVISIONS.. . 464 A. Introduction and Summary of Argument. ............. 464 B. The Categories of Special Circumstances Described in Penal Code Section 190.2 Fail to Meaningfully Narrow the Class of First Degree Murderers Who May Receive the Death Penalty. 2.0.0... cee cece eee eee eens 468 C. The Broad Application of Section 190.3, Factor (A), Allowing a Jury to Treat Any Circumstance of the Crime as Aggravation, Violated Hardy’s Constitutional Rights .... 469 D. Use of a “So Substantial” Standard to Describe Aggravating Circumstances Warranting a Verdict of Death Is Impermissibly Vague. ......... 00... c eee ee eee es 472 E. The UseofRestrictive Adjectives in the List of Potential Mitigating Factors Impermissibly Restricted Consideration of Mitigation by Hardy’s Jury ....... 0.0... eee eee ees 473 F, The Failure to Instruct That Statutory Mitigating Factors Were Relevant Solely as Potential Mitigators Precluded a Fair, Reliable, and Evenhanded Application of the Capital Sentencing Decision. .......... 0... cece cece eee 474 XVi G. The Death Sentence Is Unconstitutional Becauseit Is Not Premised on Findings Made Beyond a Reasonable Doubt. 20... 0...eeeeee teens 477 H. The Death Sentence Is Unconstitutional Becauseit Is Not Premised on Findings Made by a UnanimousJury ...... 480 I. The Instructions Violated Hardy’s Right to Due Process by Failing to Assign a Burden of Proof ................. 482 J. The Instructions Failed to Inform the Jurors That If They Determined That Mitigation Outweighed Aggravation, They Were Required to Return a Sentence of Life Without the Possibility of Parole ......... 00... c ccc eee es 483 K. The California Sentencing Scheme Is Constitutionally Defective in Failing to Require That the Penalty Jury Make Written Findings. ......... 0.0... cece cece eee eee 485 L. The California Sentencing Scheme Is Constitutionally Defective in Failing to Require Inter-case Proportionality REVIEW. 20.eceeecee ee tee eens 488 M. Imposition of the Death Penalty Currently Violates the Eighth and Fourteenth Amendmentsto the United States Constitution Becauseit Is Contrary to International Norms of Humanity and Decency ..... 0... ccc eee ence eens 490 CONCLUSION .... 0...cececent nen neee 493 CERTIFICATE OF APPELLATE COUNSEL .................005 494 XVii TABLE OF AUTHORITIES PAGE(S) CASES Adamsv. Texas (1980) 448 U.S.38 [100 S.Ct. 2521, 65 L.Ed.2d 581]... ........0.000405. 771-79, 112 Ake v. Oklahoma (1985) 470 U.S. 68 [105 S.Ct. 1087, 84 L-Ed.2d 53]... 0.2.0.0... eee eee 419, 459 Ali v. Hickman (9th Cir 2009) 571 F.3d 902 ........ 0.00.00 00 000 175 Apprendi v. New Jersey (2000) 530 U.S. 466 [120 S.Ct. 2348, 147 L.Ed.2d 435] ... 128, 129, 221, 230, 232, 240- 242, 304, 345-349, 368 Arizona v. Fulminante (1991) 499 U.S. 279 [111 S.Ct. 1246; 113 L.Ed.2d 302] ................ 298, 300, 313 Batson v. Kentucky (1986) 476 U.S. 79 [106 S.Ct. 1712, 90 L.Ed.2d 69] .... 8, 134-136, 138-143, 145, 168- 171, 175, 176 Baze v. Rees (2008) 553 U.S.35 [128 S.Ct. 1520, 170 L.Ed.2d 420] .................2.000-5 132 Beazell v. Ohio (1925) 269 U.S. 167 [46 S.Ct. 68, 70 L.Ed. 216] 2.0.2.2... . eee ee ee ees 318 Beck v. Alabama (1980) 447 U.S.625 [100 S.Ct. 2382, 65 L.Ed.2d 392] ..... 264, 326, 334-340, 344, 386 Blakely v. Washington (2004) 542 U.S. 296 [124 S.Ct. 2531, 159 L.Ed.2d 403]... 129, 130, 221, 230, 232, 240- 243, 345, 347, 392, 477, 479 Bouie v. City ofColumbia(1964) 378 U.S. 347 [84 S.Ct. 1697, 12 L.Ed.2d 894]... 0.2... eee ee eee 385 XViii Boyd v. Newland (9th Cir 2006) 467 F.3d 1139 .................0.. 168 Boyde v. California (1990) 494 U.S. 370 [110 S.Ct. 1190, 108 L.Ed.2d 316] ................ 430, 474, 483 Bradshaw v. Stumpf(2005) 545 U.S. 175 [135 S.Ct. 2398, 162 L.Ed.2d 143] ........ 443, 455, 456, 458, 459 Brady v. Maryland (1963) 373 U.S.83 [83 S.Ct. 1194, 10 LEd.2d 215] 0.0.0... eee eee eee 441 Brown v. Sanders (2006) 546 U.S.212 [126 S.Ct. 884, 163 L.Ed.2d 723] ......... 233-240, 243, 392, 471 Bruton v. United States (1968) 391 U.S. 123 [88 S.Ct. 1620, 20 L.Ed.2d 476] 2.0.0... ec eee ee ee 440 Bullcoming v. New Mexico (2011) 564U.S. __ [131 S.Ct. 2705, 180 L.Ed.2d 610] .... 191-193, 199-202, 204, 210, 211, 213, 214, 216 Calderon v. Thompson (1998) 523 U.S. 538, 550 [118 S.Ct. 1489, 140 L-Ed.2d 728] ...............0.04. 455, 456 Caldwell v. Maloney(Ist Cir. 1998) 159 F.3d 639 ..............005. 171 Caldwell v. Mississippi (1980) 472 U.S. 320 [105 S.Ct. 2633, 86 L.Ed.2d 231] ................0000. 109, 112 California v. Brown, supra, 479 U.S. 538 at p. 543.0... eee ee ee 485 Campbell v. Blodgett (9th Cir. 1992) 997 F.2d 512..............4.. 476 Carella v. California (1989) 491 U.S. 263 [109 S.Ct. 2419, 105 L.Ed.2d 218] ................ 304, 371, 399 Chambers v. Mississippi (1973) 410 U.S. 284 [93 S.Ct. 1038, 35 L-Ed.2d 297] ..... eee eee ee ees 179, 183 XIX Chapmanv. California (1967) 386 U.S. 18 [87 S.Ct. 824, 17 L.Ed.2d 705] .. 188, 216, 243, 265, 300, 313, 350, 373, 387, 388, 402, 430, 452, 463 Clemonsv. Mississippi (1990) 494 U.S. 738 [110 S.Ct. 1441; 108 L.Ed.2d 725] .................0.0005. 422 Collins v. Youngblood (1990) 497 U.S. 37 [110 S.Ct. 2715, 111 L.Ed.2d 30] 2.2.0.0... 00.02. 317 Crane v. Kentucky (1986) 476 U.S. 683 [106 S.Ct. 2142, 90 L.Ed.2d 636] ..... 0.2.0... 179 Crawford v. Washington (2004) 541 U.S. 36 [124 S.Ct. 1354, 158 L.Ed.2d 177] .... 129, 191-194, 197-199, 203, 206, 207 Cunningham v. California (2007) 549 U.S. 270 [127 S.CT. 856; 166 L.ED. 2d 856] ............... 477, 479, 480 Davis v. Alaska (1974) 415 U.S. 308 [94 S.Ct. 1105, 39 L.Ed.2d 347] .... 02.2.0... eee eee 182, 185 Davis v. Washington (2006) 547 U.S. 813 .... 193, 198, 203, 204, 210-214 Derrick v. Lewis (9th Cir. 2003) 321 F.3d 824 ................ 141, 143 Donnelly v. DeChristoforo (1974) 416 U.S. 637 [94 S.Ct. 1868, 40 L.Ed.2d 431] ........ 0. eee ee eee 441 Dowling v. United States (1990) 493 U.S. 342 [110 S.Ct. 668, 107 L.Ed.2d 708] ....... 2.0... 0.2 eee 441 Drake v. Francis (11" Cir. 1984) 727 F.2d 990 ............000 0 eee 454 Drake v. Kemp (11" Cir. 1985) 762 F.2d 1449 ................0005 454 Eddings v. Oklahoma (1982) 455 U.S. 104 [102 S.Ct. 869, 71 L-Ed.2d 1] ..............0..085. 415, 429, 476 Espinosa v. Florida (1992) 505 U.S. 1079 [112 S.Ct. 2926; 120 L.Ed.2d 854] 2.0.2eee422 Estelle v. McGuire (1991) 502 U.S. 62 [109 S.Ct. 2419, 105 L.Ed.2d 218] .... 0.2... eee eee 37] Fernandez v. Roe (9" Cir. 2002) 286 F.3d 1073 ............0.. 145,171 Fetterly v. Paskett (9th Cir. 1993) 997 F.2d 1295 ..............205. 476 Fiore v. White (2001) 531 U.S. 225 [121 S.Ct. 712, 148 L.Ed.2d 629] 0.0.0.0 cee eee 399 Fisher v. United States (1946) 328 U.S. 463 [66 S.Ct. 1318, 90 L-Ed.1382] 0.0.0.2... .......00. 360, 361, 366 Ford v. Wainwright (1986) 477 U.S. 399 [106 S.CT. 2595, 91 L.ED. 2d 335] 2... 2... ee eee eee 460 Francis v. Franklin (1985) 471 U.S. 307 [105 S.Ct. 1965, 85 L.Ed.2d 344]... 0.0... eee eee 313, 475 Freeman v. The People (1947) 4 Denio 9 [1847 N.Y. LEXIS 48] 2.0...ceeee eens 360 Furman v. Georgia (1972) 408 U.S. 238 [92 S.Ct. 2726, 33 L.Ed.2d 346] .......... 220, 236, 468, 487, 489 Georgia v. McCollum (1992) 505 U.S. 42 [112 S.Ct. 2348, 120 L-_Ed.2d 33] 0.2... 140 Giglio v. United States (1972) 405 U.S. 150 [92 S.Ct. 763, 31 L.Ed.2d 104] ........ 2... .0.2.....00.. 450, 451 Graham vy. Florida (2010) __—U.S.| [130 S.Ct. 2011, 176 L.Ed.2d 825]... 0...eee 93 Gray v. Mississippi (1987) 481 U.S. 648 [107 S.Ct. 2045, 95 L.Ed.2d 622]....... 77, 80, 110, 113, 114, 123 XX1 Gregg v. Georgia (1976) 428 U.S. 153 [96 S.Ct. 2909, 49 L.Ed.2d 859] .............. 220, 224, 429, 485 Harmelin v. Michigan (1991) 501 U.S. 957 [111 S.CT. 2680; 115 L.ED. 2d 836] .................. 481, 486 Harris v. United States (2002) 536 U.S. 545, 563, [122 S.CT. 2406, 153 L.ED. 2d 524] ................ 00005. 347 Hernandez v. New York (1991) 500 U.S. 352 [111 S.Ct. 1859, 114 L.Ed.2d 395] 22.0... eee ee. 141, 142 Hicks v. Oklahoma (1980) 447 U.S. 343 [100 S.Ct. 2227, 65 L.Ed.2d 175] ......... 286, 350, 476, 482, 484 Holley v. J& S Sweeping Co. (1983) 143 Cal. App. 3d 588 ......... 146 Holmes v. South Carolina (2006) 547 U.S. 319 [126 S.Ct. 1727, 164 L.Ed.2d 503] ................ 179, 182, 183 Hopkins v. Reeves (1998) 524 U.S. 88 [118 S.Ct. 1895, 141 L.Ed.2d 76]... 0... ee eee eee 344 Inre Anderson (1968) 69 Cal.2d 613 2.2...eee 80 Inre Martin (1987) 44 Cal.3d 1. ..... 00... ccccee ee 179 Inre Ross (1995) 10 Cal.4th 184 2.0...2.eee421 Inre Sakarias (2005) 35 Cal.4th 140............ 443-447, 449, 452, 456 Inre Sturm (1974) 11 Cal. 3d 258 0...eee486 Inre Winship (1970) 397 U.S. 358 [90 S.CT. 1068, 25 L.ED. 2d 368] .................05. 246, 368 J.E.B. v. Alabama ex rel. T.B. (1994) 511 U.S. 127 [114 S.Ct. 1419, 128 L.Ed.2d 89] ........ 0... cee eee 136 XXli Jackson v. Virginia (1979) 443 U.S. 307 [99 S.Ct. 2781, 61 L.Ed.2d 560] .......... 246, 247, 263, 286, 297 Jacobs v. Scott (1995) 513 U.S. 1067 [115 S.Ct. 711, 130 L.Ed 2d 618] .... 0.0.0... eee eee 442 Johnson v. California (2005) 545 U.S. 162 [125 S.Ct. 2410, 162 L.Ed.2d 129} ........ 138, 141-143, 169, 175 Johnson v. United States (1997) 520 U.S. 461 [117 S.Ct. 1544, 137 L.Ed.2d 718] ...............0.0.. 299, 313 Jones v. United States (1999) 526 U.S. 225 [119 S.Ct. 1215, 143 L.Ed.2d 311] ..............0...0.. 128, 345 Kansas v. Marsh (2006) 548 U.S. 163 [126 S.CT. 2516; 165 L.ED. 2d 429] .......... 465, 466, 487, 489 Keating v. Hood (9th Cir. 1999) 191 F.3d 1053 ............... 257, 270 Keeney v. Tamayo-Reyes (1992) 504 U.S.1 [112 S.CT. 1715; 118 L.ED. 2d 318] ........re485 Kennedy v. Louisiana (2008) U.S. __ [128 S.Ct. 2641, 2650, 171 L-Ed. 2d 525] .............0.0.. 492 LaJoie v. Thompson (9th Cir. 2000) 217 F.3d 663 ..............00. 179 Lilly v. Virginia (1999) 527 U.S. 116 [119 S.Ct. 1887, 144 L-Ed.2d 117] ..............0....0000. 194 Lockett v. Ohio (1978) 438 U.S. 586 [98 S.Ct. 2954, 57 L.Ed.2d 973] .............0. 186, 415, 429, 473 Lowenfield v. Phelps (1988) 484 U.S. 231 [208 S.Ct. 546, 98 L.Ed.2d 568] ...... 0.0.0... cece eee 77, 341 Mar Shee v. Maryland Assurance Corp. (1922) 190 Cal.1 .......... 209 Maynard v. Cartwright, supra, 486 U.S.356 0.0.0... cc cee eee 472 XXlil McGinest v. GTE Serv. Corp. (9th Cir. 2004) 360 F.3d 1103 ......... 352 McKoyv. North Carolina (1990) 494 U.S. 433 [110 S.Ct. 1227, 108 L.Ed.2d 369.] ..............0048. 430, 480 Melendez-Diaz v. Massachusetts (2009) 557 U.S. 305 [129 S.Ct. 2527, 174 L.Ed.2d 314] .... 191, 198-207, 211, 215, 216 Messerschmiadt v. Millender (2012) __ US. [132 S.Ct. 1235, 182 L.Ed.2d 47]... 0... 0 eee eee 414 Miller v. Pate (1967) 386 USS. 11 [87 S.Ct. 785, 17 L-Ed.2d 690]... 0.eeeee 442 Miller-El v. Dretke (2005) 545 U.S. 231 [125 S.Ct. 2317, 162 L.Ed. 2d 196] ....... 136, 143-145, 168, 175 Mills v. Maryland (1988) 486 U.S. 367 [108 S.Ct. 1860, 100 L.Ed.2d 384] ... 257, 269, 297, 317, 323, 473, 487 Mongev. California (1998) 524 U.S. 721 [118 S.CT. 2246; 141 L.ED. 2d 615] .................0005. 481 Montanav. Egelhoff(1996) 518 U.S. 37 [116 S.CT. 2013; 135 L.ED. 2d 36] ........ 0.2... e ee eee 470 Mooney v. Holohan (1935) 294 U.S. 103 [55 S.Ct. 340, 79 L.Ed. 791]... 2.eee ee 441, 453 Mullaney v. Wilbur (1975) 421 U.S. 684 [95 S.Ct. 1881, 44 L.Ed.2d 508] .............. 364, 368, 370, 371 Myers v. Yist (9th Cir. 1990) 897 F.2d 417 . 0.0.0.0... eee eee 481, 487 Neder v. United States (1999) 527 U.S. 1 [119 S.Ct 1827; 144 L.Ed 2d 35] ...........0...... 304, 314, 373 Ohio v. Roberts (1980) 448 U.S. 56 [100 S.Ct. 2531, 65 L.Ed.2d 597] 1...eee 197 XXIV Old Chiefv. United States (1997) 519 U.S. 172 [117 S.Ct. 644, 136 L.Ed.2d 574] .......0.0...0.0000000 0008. 404 Ornelas v. United States (1996) 517 U.S. 690 [116 S.CT. 1657, 134 L.Ed.2d 911] .........0....0.0..0.0002. 195 Parle v. Runnels (9th Cir. 2007) 505 F.3d 922 .............0..000. 462 Paulino v. Castro (9th Cir. 2004) 371 F.3d 1083 ..........0.... 146, 175 People v. Bassett (1968) 69 Cal.2d 122 ...............0..000000. 247 People v. Ainsworth (1988) 45 Cal.3d 984 ...............0...0000. 227 People v. Anderson (1968) 70 Cal.2d 15 ......... 0... ccc eee ee eee 364 People v. Anderson (2001) 25 Cal.4th 543 ............0....... 240, 477 People v. Aranda (1965) 63 Cal.2d 518 1.0.00... 0.0.0.0 cece eee 440 People v. Arias (1996) 13 Cal.4th 92 ......0......0..0.... 426, 427, 483 People v. Avena (1996) 13 Cal.4th 394 ........0...0...0..40.. 77, 80, 326 People v. Avila (2006) 38 Cal.4th 491 ...............00.0..00. 213, 474 People v. Ayala (2000) 23 Cal.4th 225 ..............0... 264, 336, 387 People v. Bacigalupo (1993) 6 Cal. 4th 457 .............000 00000 468 People v. Barragan (2004) 32 Cal.4th 236 ...........0....0.. 368, 418 People v. Barton (1995) 12 Cal.4th 196 1... 0.00.0... ce eee ee 355 People v. Beeman (1984) 35 Cal.3d 547 ........ 0.00.00. cee 305, 306 People v. Beltran (2013) __Cal.4"___—([2013 Cal.Lexis 238] .. . 355, 366 People v. Benitez (S181137) 2.0... ccc ccc cee teens 203 XXV People v. Berry (1976) 18 Cal.3d 509 1.0.0... eee eee 356-358 People v. Black (2007) 41 Cal. 4th 799 2.0... cee cece ee 194 People v. Blair (2005) 36 Cal.4th 686 ...............005- 367, 371, 471 People v. Blakeley (2000) 23 Cal.4th 82 ............ bce ene eens 363 People v. Bonilla (2008) 41 Cal.4th 313 00.0... 0. cece eee eee ee 145 People v. Bowman (8182172) 0... cccene eees 203 People v. Boyd (1985) 38 Cal.3d 762 ......... 00.00. eee 413-415, 475 People v. Bramit (2009) 46 Cal.4th 1221 2.0.0... cc eee cece ee eee 111 People v. Breaux (1991) 1 Cal. 4th 281 .............. see e eee noes 473 People v. Breverman (1998) 19 Cal.4th 142 ...... 0.0.2.0... eee ee 264 People v. Brooks (1986) 185 Cal.App.3d 687 ............. eee eee 358 People v. Brown (1974) 11 Cal.3d 784 2.0.0... ccc eee eee 383 People v. Bruggy (1892) 93 Cal.476 2... 0... ccc cee eee eee 356 People v. Cash (2002) 28 Cal.4th 703 ....... 248, 333, 334, 343, 344, 350 People v. Castaneda (2000) 23 Cal.4th 743 2... 0... cc eee cece 414 People v. Castaneda (2011) 51 Cal.4th 1292 ..... 331, 332, 344, 345, 376 People v. Caudillo (1978) 21 Cal.3d 562 11... ... cece eee eee ee 382 People v. Cavitt (2004) 33 Cal.4th 187 .............. 231, 262, 263, 266 People v. Chacon (1968) 69 Cal.2d 765 ..........005.eee eens 111 XXV1 People v. Champion(1995) 9 Cal.4th 879, 943, modified (1995) 10 Cal.4th 462a, cert. den. (1996) 516 U.S. 1049 [116 S.Ct. 714, 133 L.Ed.2d 668] ...... 2... eee eee eee 416 People v. Clark (1992) 3 Cal.4th 41... 02... eee eae 193, 194 People v. Clay (1984) 153 Cal. App. 3d 433 .............0 0000 eee 146 People v. Clayton (1928) 89 Cal.App. 405 .......... 0.0. cee cece 252 People v. Cleveland (2004) 32 Cal.4th 704 ...............005. 354, 383 People v. Cole (2004) 33 Cal.4th 1158 2... ... 0.0... 0c eee eee 258 People v. Conner (1983) 34 Cal.3d 141.2... eee cee eee 247 People v. Cook (2006) 39 Cal. 4th 566 .. 00... ccc cee eee 491 People v. Cornwell (2005) 37 Cal.4th 50 2.0.0.0... 0.0.00 c cece 137 People v. Cox (1991) 53 Cal.3d 618 2.0... 0... cece cece eee 404, 412 People v. Cox (2000) 23 Cal.4th 665 2.0... 0.0... cee eee 304, 373 People v. Crittenden (1994) 9 Cal.4th 83 ...............00000. 307, 414 People v. Cromer (2001) 24 Cal.4th 889 0.0.0.0... cece eee 195 People v. Cruz (1964) 61 Cal.2d 861 2.2... 0...0...421 People v. Cummings (1993) 4 Cal.4th 1233 2.0.2... eee eee 264 People v. Cunningham (2001) 25 Cal.4th 926 ..............00. 000005, 80 People v. Daniels (1969) 71 Cal.2d 1119 2.0.0... eee cee 381 People v. Davis (1995) 10 Cal.4th 463 ................04. te 293-295 People v. Demetrulias (2006) 39 Cal. 4th 1.0.2.2... eee eee 487 XXVil People v. Dillon (1983) 34 Cal.3d 441 0.0.0... 0c cece eee eee 431 People v. Doolin (2009) 45 Cal.4th 390 ..............0..0000..... 111 People v. Dreas (1984) 153 Cal.App.3d 623 ............00505. 252, 253 People v. Duncan (1991) 53 Cal. 3d 955 2...eee 484 People v. Dungo (2012) 55 Cal.4th 608 . 192, 193, 202, 205-208, 210-213 People v. Earp (1999) 20 Cal.4th 826 0.0... 0.0... cc eee eee 398 People v. Easley (1983) 34 Cal.3d 858 2.0... cee ee eee 428 People v. Edelbacher (1989) 47 Cal.3d 983 ............0.0005. 468, 474 People v. Edgmon (1968) 267 Cal.App.2d 759 1.0.2.2... eee ee eee 358 People v. Ervin (2000) 22 Cal.4th 48... 2...eee 144 People v. Fairbank (1997)16 Cal. 4th 1223 ..............00.. 477, 485 People v. Farmer (1989) 47 Cal.3d 888 ..............0.-. 293, 295, 296 People v. Farnam (2002) 28 Cal. 4th 107 .. 0... 0... eee eee eee 478 People v. Fauber (1992) 2 Cal. 4th 792... 0...eee 485 People v. Fierro (1991) 1 Cal.4th 173 ................4.. 408, 417, 490 People v. Figueroa (1986) 41 Cal.3d 714 .................00. 399, 400 People v. Fitzpatrick (1992) 2 Cal.App.4th 1285 ........ oo eceeee 365 People v. Flood (1998) 18 Cal.4th 470 ...............4.. 304, 371, 373 People v. Flynn (2000) 77 CalApp.4th 766 ...............000006, 330 People v. Foley (1886) 59 Mich. 553 [26 N.W. 699, 700-701] 2... eeeee eee ees 277 XXVili People v. Ford (1960) 60 Cal.2d 772 2.0... ccc cc eee eee 306 People v. Ford (1966) 65 Cal.2d 41.0... cc cee cee eee eee 330 People v. Friend (2009) 47 Cal.4th 1.0... cece cee ee eee 262 People v. Frye (1998) 18 Cal.4th 894 ........0..0.....0.. 248, 253, 327 People v. Fuentes (1991) 54 Cal.3d 707 ................. 136, 143, 176 People v. Fuller (1982) 136 Cal. App. 3d 403..............000 0004 146 People v. Gamache (2010) 48 Cal.4th 347 2.0.0... 0... cece eee 110 People v. Gardeley (1996) 14 Cal.4th 605 .............0.0..0000000. 414 People v. Geier (2007) 41 Cal. 4th 555 .............. 194, 202-204, 216 People v. Ghent (1987) 43 Cal.3d 739 0... 0... 0. ccc cece ce eee 79, 491 People v. Gray (2005) 37 Cal.4th 168 ..............0.00.. 137, 331. 332 People v. Green (1980) 27 Cal.3d 1 ... 219, 220, 222-228, 230, 231, 246, 249, 257, 267, 383 People v. Guiton (1993) 4 Cal.4th 1116 ..... 257, 267, 268, 297, 317, 322 People v. Guiuan (1998) 18 Cal.4th 588 ............0.....0..0. 258, 395 People v. Gurule (2002) 28 Cal.4th 557 2.0... .........0.0000, 404, 412 People v. Gutierrez (2002) 28 Cal.4th 1083 .................. 326, 413 People v. Hall (1983) 35 Cal.3d 161 ........ne143, 146 People v. Hamilton (1989) 48 Cal. 3d 1142 ...........00..0....00.. A474 People v. Harris (1994) 9 Cal.4th 407.0... .........0.....000. 268, 372 People v. Hart (1999) 20 Cal.4th 546 .............. 0. 186, 262 XXIx People v. Hawthorne (1992) 4 Cal. 4th 43... 0... eee eee 477, 487 People v. Hawthorne (2009) 46 Cal.4th 67 ..... 0.0.6.0 c cece eee eee 167 People v. Hayes (1990) 52 Cal.3d 577 1.0... ccc ccc ec eee 141 People v. Herandez (2004) 33 Cal.4th 1040 ..................005. 414 People v. Hernandez (2010) 183 Cal.App.4th 1327 ................ 373 People v. Hill (1998) 17 Cal. 4th 800 .. 00... 0... eee ee eae 462, 463 People v. Hillhouse (2002) 27 Cal.4th 469 ...............0.46. 354, 383 People v. Holloway (1990) 50 Cal.3d 1098 ... 0.0.0... cece eee eee 77 People v. Holt (1984) 37 Cal.3d 436 21.0... 0. ce eee eee ee 461 People v. Holt (1997) 15 Cal.4th 619 2.0... cee ee eee eee 77, 80 People v. Horning (2004) 34 Cal.4th 871 2.0.0.0... cee cece eee 225 People v. Howard (1992) 1 Cal. 4th 1132 .. 0.0... eee eee ee eee ... 137 People v. Howard (2005) 34 Cal.4th 1129 1.00.0... eee eee eee 189 People v. Howard (2008) 42 Cal. 4th 1000 ...........are 142, 167 People v. Humphrey (1996) 13 Cal.4th 1073 1... 6... 2c eee eee eee 370 People v. Hurtado (1883) 63 Cal.288 0.0... 0... cece eee 356, 357 People v. Jackson (1996) 13 Cal.4th 1164 ................45. 294, 295 People v. Jennings (1988) 46 Cal.3d 963 ................ 409, 417, 418 People v. Johnson (1980) 26 Cal.3d 557 ....... vee e eee ees 246, 247 People v. Johnson (1989) 47 Cal.3d 1194 1.0.0... eee eee 138 People v. Johnson (1992) 5 Cal.App. 552 .. 0.2.0.0... 0c cece eee 330 People v. Jones (1992) 2 Cal.App.4th 867 .......... 002.0000 cece 253 People v. Jones (2000) 82 Cal.App.4th 663 .................0000. 269 People v. Jones (2003) 29 Cal.4th 1229 1.0.0.0... 0.00. ccc cee eee 414 People v. Kauffman (1907) 152 Cal. 331 ............ 000000008 274-278 People v. Kaurish (1990) 52 Cal.3d 697 ...... 0.0... cee cee cee eee 80 People v. Kelley (1980) 113 Cal. App. 3d 1005 ................0.. 484 People v. Kelley (1990) 220 Cal.App.3d 1358 ............ 253, 326, 328 People v. Kelly (1992) | Cal.4th 495 .....0...0 00.00... cece eee eee 248 People v. Kelly (2007) 42 Cal.4th 763 .... 0.0.0.0... c eee eee eee 174 People v. Kennedy (2005) 36 Cal. 4th 595 ©... 0... eee 472 People v. Kimble (1988) 44 Cal.3d 480 .............0.0.0 000s 225, 231 People v. Kipp (1998) 18 Cal. 4th 349.00... eee, 484 People v. Knoller (2007) 41 Cal.4th 139 .. 00.0... 000.00. .00.00008. 363 People v. Lawson (1987) 189 Cal.App.3d 741 ...........0.020000. 314 People v. Le (2007) 158 Cal.App.4th 516 ...........0 00.00.00 cue, 359 People v. Lee (1999) 20 Cal.4th 47.0... ccc eee eee 355 People v. Lenart (2004) 32 Cal. 4th 1107 .......0..0...00..00...00002. 483 People v. Lenix (2008) 44 Cal.4th 602 .............. 136, 139, 145, wal People v. Lescallet (1981) 123 Cal.App.3d 487 ..............0005, 252 XXX1 People v. Lewis (2008) 43 Cal.4th 415 ..............0... 141, 142, 144 People v. Lewis (2009) 46 Cal.4th 1255 2.0... eeeeee 187 People v. Logan (1917) 175 Cal.45 2... ceeeee 357, 359 People v. Loker (2008) 44 Cal4th 691 21... .. 0... cece eee eee 421, 479 People v. Lopez (2012) 55 Cal.4th 569 .......... 192, 193, 202, 210-213 People v. Lucero (1988) 44 Cal.3d 1006 ..... 0... 0. cc eee ce eee 247 People v. Lucero (2000) 23 Cal.4th 692 1.0.00... 0. cece eee ees 401 People v. Manriquez (2005) 37 Cal.4th 547 0... ccccceceeeee eee. 258 People v. Marshall (1990) 50 Cal. 3d 907 . 0... eeeeee 490 People v. Marshall (1997) 15 Cal.4th 1... 0... c eee eee eee 249, 322 People v. Martinez (1999) 20 Cal.4th 225 ........ 376, 380-385, 389-391 People v. Martinez (2003) 31 Cal.4th 673 ............. 000000 368, 369 People v. Massie (2006) 142 Cal.App.4th 365 2.0.0.0... 0... eee eae 306 People v. McGrath (1976) 62 Cal.App.3d 82 ...... 00... cee ee eee 325 People v. McNamara (1892) 94 Cal. 509 20...eeeee 397 People v. Medina (1995) 11 Cal. 4th 694 00... cee eee eee 481 People v. Medina (2009) 46 Cal.4th 913 2.0... 0... cece eee ee eee 359 People v. Memro (1995) 11 Cal.4th 786 ..............0.0000, 341-343 People v. Mendoza (1998) 18 Cal.4th 1114................... 305, 306 People v. Michaels (2002) 28 Cal.4th 486........ 225, 227, 228, 397, 398 XXXIi People v. Mickey (1991) 54 Cal.3d 612... 0.0... cc cece eee 77 People v. Mil (2012) 53 Cal.4th 400 ..............0..0..0000. 299, 314 People v. Miller (1994) 28 Cal.App.4th 522 .......... 341-343, 345, 349 People v. Monterroso (2004) 34 Cal.4th 743 ..............00.000. 231 People v. Montiel (1993) 5 Cal. 4th 877 1.0.0.0... 000.00, 176, 373 People v. Moore (1954) 43 Cal.2d 517 .............2045. 394, 398, 484 People v. Morales (1975) 49 Cal.App.3d 139 ..............0.. 251, 252 People v. Morgan (2008) 42 Cal.4th 593 .............0.. 384, 390, 391 People v. Morrison (2004) 34 Cal 4th 698 ..............000000002 475 People v. Motton (1985) 39 Cal. 3d 596 ........... 0.00 cece ee 146, 147 People v. Moye (2009) 47 Cal.4th 537 20... ccc ccc cece cee ee 184 People v. Mungia (1991) 234 Cal.App.3d 1703 ............... 248, 252 People v. Mungia (2008) 44 Cal4th 1101 .........0..0...0.0045. 306, 307 People v. Najera (2006) 138 Cal.App.4th 212 .................00, 370 People v. Neely (1993) 6 Cal.4th 877 2.0... ccc cece cee cece 294 People v. Nguyen (1993) 21 Cal.App.4th 518 .............0..0.0000. 278 People v. Nieto Benitez (1992) 4 Cal.4th91 ............0...0.. 363, 364 People v. Ortega (1998) 19 Cal.4th 686 ..............000 cea ee 325 People v. Ortiz (1979) 95 Cal.App.3d 926 ... Dette eee eee eens 413 People v. Padilla (2002) 103 Cal.App.4th 675 ................ 365, 366 XXXill People v. Pearson (2012) 53 Cal.4th 306 2.0.6... 00... ee eee passim People v. Perry (1972) 7 Cal.3d 756 00.0... ccc cee ee nee 296 People v. Posey (2004) 32 Cal.4th 193 0... . 0. cece ee 258 People v. Pre (2004) 117 Cal.App.4th 413 ...... 0.0... cece ee eee 306 People v. Prettyman (1996) 14 Cal.4th 248 ....... 274, 276-278, 280, 281 People v. Prieto (2003) 30 Cal.4th 226 2.0... 00. eee eeeee 240 People v. Pulido (1997) 15 Cal.4th 713 2.2.0... eee ene 269 People v. Raley (1992) 2 Cal.4th 870 2.0... 0... cee eee eee 225 People v. Ramkeesoon (1985) 39 Cal.3d 346 .............245. 325, 327 People v. Ramos (1982) 30 Cal.3d 553 2.0... ee cece ee 249 People v. Reeder (1978) 82 Cal.App.3d 543 2.0.0... 00. cece eens 182 People v. Reilly (1970) 3 Cal.3d 421 0.0... ccc ccc eee 247 People v. Reyes (2004) 32 Cal.4th 73 2.0... cc eee eee 225 People v. Riccardi (2012) 54 Cal.4th 758 2.00... 0... ccc eee ee eee 108 People v. Rice (1976) 59 Cal. App. 3d 998 1.0.0... ccc eee eee 484 People v. Rios (2000) 23 Cal.4th 450 ........ 0... cece eee eee 364, 370 People v. Roberts (1976) 57 Cal.App.3d 782 2.0.0.0... 0c e eee eee 253 People v. Roe (1922) 189 Cal. 548 2...cen ee 370 People v. Rogers (2006) 39 Cal.4th 826 ............ renee 366-368, 485 People v. Rogers (1985) 172 Cal.App.3d 502 «0.2... 6... e eee eee. 278 XXXIV People v. Rubalcava (2000) 23 Cal.4th 322 ............. 0.000000, 371 People v. Russell (1953) 118 Cal.App.2d 136 .. 0.0.2.0... 0.0 c eee. 254 People v. Salas (1972) 7 Cal.3d 812 2.0... ccc cece eee 330 People v. Sanchez (2001) 86 Cal.App.4th 970 .......... 0.0. e eee 269 People v. Sanders (1995) 11 Cal.4th 475.0... 0... eee eee eee 398 People v. Schmeck (2005) 37 Cal. 4th 240 2... 0... cece eee 465 People v. Sears (1965) 62 Cal.2d 737 1.0.0... ccc ccc cece eee 186, 262 People v. Sedeno (1974) 10 Cal.3d 703 2.0.0... ccc ccc cee eee 371 People v. Silva (2001) 25 Cal.4th 345 ... 170, 333, 334, 336, 341-343, 350 People v. Smith (1984) 35 Cal.3d 798 2.2.0... cc ec eens 269 People v. Smith (1998) 62 Cal.App.4th 1233 ..............0.. 269, 343 People v. Smithey (1999) 20 Cal.4th 936 ..............00 00005 354, 431 People v. Snow (2003) 30 Cal.4th 43 0.0... 0c cece ee ees 240 People v. Stanworth (1974) 11 Cal.3d 588 22.0.0... 0.0.0.0 eee eee 381 People v. Steger (1976) 16 Cal.3d 539 22... ccce ee n es 188 People v. Stewart (2004) 33 Cal.4th 425 ..............005. 79, 111, 112 People v. Tate (2010) 49 Cal.4th 635 2.0... 0... ccc ce ee eee 111 People v. Taylor (1990) 52 Cal. 3d 719 2.0...cece 480 People v. Thompson (1980) 27 Cal.3d 303 1... 0... eee eee 225-227 People v. Thompson (1990) 50 Cal.3d 134 0.2.0... 0... cece eee 262 XXXV People v. Turner (1990) 50 Cal.3d 668 ......... 00-00 ce eee eee 251, 325 People v. Turner (1994) 8 Cal.4th 137 2.0...eceee eee 169 People v. Valdez (2004) 32 Cal.4th 73. . 225, 226, 325, 327, 333, 334, 350 People v. Valentine (1946) 28 Cal.2d 121 .... 184, 356, 357, 365, 370, 372 People v. Vargas (2009) 178 Cal.App.4th 647 .. 0.0... 00... eee eee 203 People v. Waidla (2000) 22 Cal.4th 690 2.2.0... 0... ce eee eee eee eee 344 People v. Wallace (2008) 44 Cal.4th 1032 ....... 0... cee eee eee eee 412 People v. Ward (2005) 36 Cal.4th 186 .............2005- 168, 240, 374 People v. Webster (1991) 54 Cal.3d 411 1.0... 0... ce eee eee ee 294, 300 People v. Weidert (1985) 39 Cal.3d 836 ...... 0. cece cece eee 225 People v. Wheeler (1978) 22 Cal.3d 258 2.0.0... cece eee eee passim People v. Wilkins (2013) 56 Cal.4th 333 ...... 00... . eee eee eee 330 People v. Williams (1971) 22 Cal.App.3d 34 1.0.0.0... . 00. c eee eee 462 People v. Wright (1996) 52 Cal.App.4th 203 ............. 248, 249, 252 People v. Wright (1988) 45 Cal.3d 1126 ....... 0... cece eee eee 402 People v. Zamudio (2008) 43 Cal. 4th 327 2.0... cee eee eee 470 Peters v. Kiff(1972) 407 U.S. 493 [92 S.Ct. 2163, 33 L.Ed.2d 83] .... 0... eee ee eee 126 Phillips v. Woodford (9" Cir. 2001) 267 F.3d 966 .............005. 462 Pierce v. United States (1941) 314 U.S. 306 [62 S.Ct. 237, 86 L.Ed. 226] .... 2...ce eee eee 385 XXXVi Powers v. Ohio (1991) 499 U.S. 400 [111 S.Ct. 1364, 113 LEd.2d 411] 2.0.0... 0eee cee 145 Pulley v. Harris (1984) 465 U.S. 37 [104 S.Ct. 871; 79 LED. 2d 29] .................. 466, 488, 489 Reagan v. United States (1895) 157 U.S 301 [15 S.Ct. 610, 39 L.Ed 709] 2.2... . eeec eee 395, 399 RedLion Broadcasting Co. v. FCC (1969) 395 U.S. 367 [89 S.Ct. 1794; 23 L.Ed.2d 371] ...... 0... cee ee cee 225 Regina v. Caton (Eng. 1874) 12 Cox Crim. Cases 624 .............. 277 Rex v. Hawkins (1828) 3 Car. & P. 392, 172 Eng.Rep.470 .......... 277 Ring v. Arizona (2002) 536 U.S. 584 [122 S.Ct. 2428, 153 L.Ed.2d 556] ... 126, 128, 129, 183, 221, 230, 232, 240-242, 285, 297, 345, 347-349, 386, 477-480, 487 Roper v. Simmons (2005) 543 U.S. 551 {125 S.Ct. 1183; 161 L.Ed. 2d 1] .........000.00. 00000002. 491 Rose v. Clark (1986) 478 U.S. 570 [106 S.Ct. 3101, 92 L.Ed.2d 460] ..........0....0.0...0000.0, 298 Salve Regina College v. Russell (1991) 499 U.S. 225 [111 S.Ct. 1217, 113 L.Ed.2d 190] ........00..0.000 0.000002. 355 Sandstrom v. Montana (1979) 442 U.S.510 ..... 00... cee eee475 Sattazahn v. Pennsylvania (2003) 537 U.S. 101 [122 S.Ct. 2428, 154 L.Ed.2d 588] ........ 0.0... eee eee 241 Scales v. United States (1961) 367 US 203 [81 S.Ct. 1469, 6 L.Ed.2d 782] ..............00.00 0000. 414,419 Schad v. Arizona (1991) 501 U.S. 624 {111 S.Ct. 2491, 115 L.Ed.2d 555] ............0.0..00. 339, 340 XXXVIi Smith v. Groose (8" Cir. 2000) 205 F.3d 1045 .............04. 453, 454 Snyder v. Louisiana (2008) 552 U.S. 472 [128 S.CT. 1203, 170 LED. 2d 175] .............. 143, 144, 174 Sochorv. Florida (1992) 504 U.S. 527 [112 S.Ct. 2114; 119 L_Ed.2d 326] ...... 0... ee eee eee 422 Sparfand Hansen v. United States (1895) 156 U.S. 51 [15 S.Ct. 273, 39 L.Ed. 343] 2...eeeeee 314 Spaziano v. Florida (1984) 468 U.S. 447 [104 S.Ct. 3154, 82 L.Ed.2d 340] .... 0... eee eee eee 126 Spencerv. Texas (1967) 385 U.S. 554 [87 S.Ct. 648, 17 L.Ed.2d 606]... 0.6... e eee eee 182 State v. Cardenas-Hernandez (Wis. 1998) 579 N.W.2d 678 [219 Wis.2d 516] 2...ecce eee eens 450 State v. Lucas (1880) 55 Iowa 321 [7 N.W. 583] ............0 2000 277 State v. Snyder (1918) 41 Nev. 453 0.0... cee eee eee 252 State v. Yanz (1901) 74 Conn. 177 [50 A. 37] «1.0... eee eee 359 Stringer v. Black (1992) 503 U.S. 222 [112 S.Ct. 1130; 117 L.Ed.2d 367] .................05. 422, 476 Stromberg v. California (1931) 283 U.S. 359 [51 S.Ct. 532, 75 L.Ed. 1117]...eeeee 257, 269 Stumpfv. Mitchell (6™ Cir. 2005) 367 F.3d 594 ........... 443, 456-458 Sullivan v. Louisiana (1993) 508 U.S. 275 [113 S.Ct. 2078, 124 L.Ed.2d 182] ........ 264, 300, 313, 326, 335 Swinton v. Potomac Corp. (9th Cir. 2001) 270 F.3d 794 .....bees 353 XXXViii Taylor v. Kentucky (1978) 436 U.S. 478 [98 S.Ct. 1930, 56 L.Ed.2d 468]... 0.0... eee eae 461 Tennard v. Dretke (2004) 542 U.S. 274 [124 S.Ct. 2562, 2570, 159 L.Ed.2d 384] ................00. 430 Thompsonv. Calderon (9" Cir 1997) (en banc) 120 F.3d 1045 .. 443, 455, 456, 459 Thompson v. Keohane (1995) 516 U.S. 99 [116 S.Ct. 457, 133 L.Ed.2d 383] 2.0.0...ee eee 195 Tison v. Arizona (1987) 481 U.S. 137 [107 S.Ct. 1676, 95 L.Ed.2d 127] 2.0...eee 299 Townsendv. Sain (1963) 372 U.S. 293 {83 S.CT. 745; 9 L.ED. 2d 770] 2.2.0... cee eee eee 485 Trop v. Dulles (1958) 356 U.S. 86 [78 S.Ct. 590; 2 L.Ed. 2d 630] .. 0.2.2... eee eee eee 491, 492 Tuilaepa v. California (1994) 512 U.S. 967 [114 S.Ct. 2630, 129 L-Ed.2d. 750 1.0.0... 0... eee eee eee 472 Turner v. Marshall (9th Cir. 1997) 121 F.3d 1248 ................. 172 Turner v. Murray (1986) 476 U.S. 28 [106 S.Ct. 1683, 90 L.Ed.2d 27]... 0...cee 136 United States v. Alexander (D.C. Cir. 1972) 471 F.2d 923 ....... 361, 362 United States v. Bakshinian (C.D. Cal. 1999) 65 F.Supp.2d 1004 ..... 449 United States v. Bishop (9th Cir.1992) 959 F.2d 820 ....... 167, 242, 347 United States v. Booker (2005) 543 U.S.220 [125 S.Ct. 738, 160 L.Ed.2d 621] ............. 131, 230, 347, 348 United States v. Chinchilla (9th Cir. 1989) 874 F.2d 695 ............ 167 XXX1X United States v. Collins (9th Cir. 2009) 551 F.3d 914....... 140, 168, 169 United States v. Esparza-Gonzalez (9th Cir. 2005) 422 F.3d 897 ...... 171 United States v. Frederick (9th Cir. 1996) 78 F.3d 1370 ............ 462 United States v. Gaudin (1995) 515 U.S. 506 [115 S.Ct. 2310, 132 L.Ed.2d 444] ................ 285, 304, 386 United States v. Katar (1* Cir. 1988) 840 F.2d 118 .............4.. 452 United States v. McKeon (2™Cir. 1984) 738 F.2d 26 ............2--- 449 United States v. Power (9th Cir. 1989) 881 F.2d 733 ............... 167 United States v. Robertson (D.C. 1977) 430 F.Supp. 444 ............ 362 United States v. Robertson (D.C. Cir. 1974) 507 F.2d 1148 .......... 362 United States v. Salerno (1991) 937 F.2d 797 «2.2... ee ee ee 449 United States v. Sayetsitty (9th Cir. 1997) 107 F.3d 1405 ............ 368 United States v. Toles (10" Cir. 2002) 297 F.3d 959 ...........005- . 462 United States v. Urso (E.D.N.Y. 2005) 369 F.2d 254 ............6.. 452 United States v. Vasquez-Lopez (9th Cir. 1994) 22 F.3d 900 ......... 175 United States v. Voss (8th Cir. 1986) 787 F.2d 393 ............. 399, 400 United States v. Rockwell rd Cir. 1986) 781 F.2d 985 ............. 400 Uttecht v. Brown (2007) 551 U.S. 1 [127 S.Ct. 2218, 167 L.Ed.2d 1014] ... . 92, 109, 123, 127, 131, 132 Wainwright v. Witt (1985) 469 U.S. 412 [105 S.Ct. 844, 83 L.Ed.2d 841]. 77, 79, 80, 95, 109-113, 115, 122, 123, 127 xl Walker v. Endell (9th Cir. 1988) 850 F.2d 470 ..............0.00.. 368 Walton v. Arizona (1990) 497 U.S. 639 [110 S.Ct. 3047, 111 L-Ed.2d 511] ..............0..0.. 241, 348 Wardius v. Oregon (1973) 412 U.S. 470 [93 S.Ct. 2208, 37 L.Ed.2d 82] ....... 0.0.0.0... 0000 ee 395, 484 Wilkoffv. Superior Court (1985) 38 Cal.3d 345 ............0.0000, 249 Williams v. Calderon (9" Cir. 1995) 52 F.3d 1465 ......... 220, 231, 232 Williams v. Illinois (2012) US. [132 S.Ct. 2221; 183 L.Ed.2d 89]..... 191, 192, 201, 202, 210, 211 Williams v. Taylor (2000) 529 U.S. 362 [120 S.Ct. 1495, 146 L.Ed.2d 389]... 00... eee ee 206 Witherspoonv. Illinois (1968) 391 U.S. 510 [88 S.Ct. 1770, 20 L.Ed.2d 776] . 77, 78, 92, 95, 109, 110, 113-115, 122-124, 126, 127, 131-133 Woodson v. North Carolina (1976) 428 U.S. 280 [96 S.Ct. 2978, 49 L_Ed.2d 944] 0.0... eee eee 430, 480 Yates v. Evatt (1991) 500 U.S. 391 [109 S.Ct. 2419, 105 L.Ed.2d 218}. ....... 372, 387, 388, 399, 402 Yates v. United States (1957) 354 U.S. 298 [77 S.Ct. 1064, 1 L.Ed.2d 1356] ...... 0.0.0.0... 0.0 257, 269 Zant v. Stephens (1983) 462 U.S. 862 [103 S.CT. 2733; 77 L.ED. 2d 235] ....... 234, 257, 269, 468, 474 CONSTITUTIONS United States Constitution 5 and 14" Amends ........... 00 ce ccc cee cece eeceueeneeeves 385 xii V. VI. & XIV. Amends .... 0.0.2... ceeete eens 354 14th Amendment ......... 0.0... ccc cece ee teens 395, 399 Stheeeeee eee ee eee e een eee 334 Article I, section 10 2.0...ceceeee eens 317 Eighth Amendment ...... 76, 77, 112, 113, 115, 134, 136, 178, 180, 182, 188, 190, 256, 264, 265, 271, 284, 302, 316, 326, 335, 336, 340-343, 350, 375, 386, 387, 393, 402-404, 415, 421-423, 429-433, 461, 464, 466, 469, 471-476, 480, 483, 485, 488, 490-493 Fifth Amendment ........ 76, 77, 113, 115, 134, 136, 178, 188, 190, 246, 256, 271, 284, 302, 304, 316, 349, 352, 371, 375, 393, 402-404, 422, 423, 461, 464, 466, 471, 473, 481, 493 Fourteenth Amendment ....... 76-78, 113, 115, 123, 134, 136, 178, 180, 182, 185, 188, 190, 194, 195, 216, 243, 246, 256, 264, 271, 284, 302, 304, 316, 326, 335, 336, 340, 346, 349, 350, 352, 371, 375, 386, 392, 393, 402-404, 415, 421-423, 429, 431-433, 441, 442, 454, 461, 464, 466, 469, 471-476, 478, 480, 481, 486, 490, 491, 493 Sixth Amendment ........ 76-78, 113, 115, 122, 123, 127-129, 131, 133, 134, 136, 137, 178-180, 182, 183, 185, 188, 190, 192, 194, 195, 197, 200, 205, 216, 232, 241, 243, 256, 264, 271, 284, 285, 297, 302, 304, 316, 320, 326, 327, 335, 343, 349, 352, 371, 375, 385, 386, 392, 393, 399, 402-404, 422, 423, 432, 433, 441, 461, 464, 466, 471, 473, 478- 480, 482, 487, 488, 493 California Constitution FY 354 article I, section 16 ........... 77, 115, 136, 137, 264, 285, 327, 335, 385 article I, section 17 .. 77, 115, 178, 186, 190, 256, 264, 265, 271, 284, 302, 316, 327, 336, 375, 387, 393, 429, 431, 464 article I, section 15 2.0... 2. eee ee eee 77, 115, 264, 327, 352, 464 xiii article I, section 7 .......... 0... 0 eee eee eee 77, 115, 327, 352, 385 FEDERAL STATUTES Rules of Evidence Rule 106 2.0...eeccc cece eee e ee eees 426 STATUTES Code of Civil Procedures Section 231.5 2...ccc cece eee eee n ees 137 Section 625 2.0...eceee e eee e eee e ees 296 Evidence Code Section 210 2.0... 0.cece eee e aes 187, 413 Section 352 2.0...eccc cece eee n eee eeeues 182 Section 354, subdivision (Cc) ......... 0.0 ccc cee ce eee eee eee 428 Section 356 2.0... cececece eee ennes 423, 426 Section 520 2.0... eccc cece cece ence eees 482 Government Code Section 27491... . 0. ccccccee ence neces eeeees 209 Penal Code Section 211] 2... .. 0.0... 0. cc eee eee 6, 39, 221, 248, 253 Section 1150 ... 0.0... . cece eee eee 286, 293, 295 Section 1151 0.0.0...ceeeee eee 286, 287 Section 1152 20...ccc eee cence ees 287, 295 Section 1154 20...ceceeee 287, 293 Section 1155 2...ccc cece eee teen aes 286 Section 1158a 2... 0...ccc cece eee ee eee aee 481 Section 1170.12 subdivisions (a)-(d) ............0..00 cece ae 7 Section 1170, subdivision (c) ........... 00. cee cece ee eee 486 Section 12022.3, subdivision (a).......... 0.000 c eee e eee eae 7 Section 12022.3, subdivision (b) .......... 0... cece ee eee 7 Section 12022, subdivision (b)(1)................0.. 7, 287, 393 Section 1203 subdivision (€)(4) ....... 0.00... cece cece eee 7 Section 1239, subdivision (b) ..... 0... 6. ccc ccc cee l Section 1259 20.0...cee eee eee 354, 355, 383 Section 187, subdivision (a) ................00. 6, 287, 363, 377 xliii Section 188 2.0.0... 0... ce ee cc ee ec ee eee teens 363 Section 189 .. 258, 260, 262, 264, 266, 316, 321, 322, 337, 341, 364 Section 190.12, subdivision (a)(18) ........... 0... e ee ee eee 302 Section 190.2 ..............-. 222, 225, 234, 236, 467, 468, 471 Section 190.2 (a)(17)(A) .. 0... cee eee eee cet aee 6 Section 190.2 (a)(17)(B) .... 2... eee eee ee eee 6, 377 Section 190.2 (a)(17)(C) 2...ccee eee 6 Section 190.2 (a)(17)\(m) .. 2.cccee ee 225 Section 190.2 subdivision (C) ........0.. eee eee eee eee 298 Section 190.2 subdivision (d) ...........20.298 Section 190.2, subd. (a)(1)-(22) .. 22... eeeeee 337 Section 190.2, subdivision (a)............ 219, 221, 337, 341, 469 Section 190.2, subdivision (A)(17) .... 219, 221, 222, 230, 291, 321 Section 190.2, subdivision (c)(3) ............- 20 eee eee 222-224 Section 190.2(a)(17)\(K) 2.2... eeeccee eee 6 Section 190.2(a)(18) 2.0... eee eee ee eee 6, 219, 230 Section 190.3 ............ 412-415, 428, 445, 478, 483, 487, 490 Section 190.3 (€) 2.0...eceect teens 474 Section 190.3 factor (d) ........ 02-2. eee ee eee eee 473, 474 Section 190.3 factor (f) ... 0.0... ee eece ce eee 474 Section 190.3 factor (h) ...... 0... eee eee ee eee 474 Section 190.3, Factor (A) ............ 0.0.2 eee eee 469, 471, 472 Section 190.3, factor (g) ...............2004. 439, 445, 473, 474 Section 190.3, factor (k) 2... 0... cee eeee eee 397 Section 190.3, factor. (J)... 0... eee ee eee eee 438 Section 190.3, subdivision (a).............-.0200- 416, 469, 471 Section 190.3, subdivision (b) ....... 404, 412, 415, 416, 477, 480 Section 190.3, subdivision (k) ...........-2.02 eee eee 423, 428 Section 190.4, subdivision (a) ........ 20... cee eee ee eee eee 221 Section 190, subdivision (k) ........ 20... ec eee eee ee eee 415 Section 192 ..0.eeeeee eee 356, 358 section 192, subdivision (a) ........ 0... ee eee eee ees 355 Section 198.12(a)(17)(A) .. 0... eeecceee ee 288 Section 198.12(a)(17)(B) ...... 2. cece cee ee eee 288 Section 198.12(a)(L7)(K) 2.0... ce eee ce eee 288 Section 198.12(a)(18) .. 0.0... cee eee eee eee 288 Section 206 .. 0... 0.eeeene nena 7, 306, 316 Section 207 ..........0 22 ee eee eeecence cence eee eens 381 Section 207, subdivision (a) ....... 0... eee cee ee ee eee 380 Section 209 2... ccceee eee eens 221, 381 xliv Section 209, subdivision (b)(1).. 02.2.0... 0.0 cece eee 7,377 Section 213 2...ketenetenes 337 Section 216 2...cceteeee eet n teens 221 Section 22, subds. (a) and (b) ... 0... eece ees 305 Section 261, subd. (a)(2) ...cceee ees 7 Section 264.) 2...eeecette eee ee ens 7 Section 289 2.0...cecette ten eee eaes 221 Section 289, subdivision (a)(1) 2.0.6...eeeeee 7 Section 314 0.0...ccee eee eee eens 161 Section 484 2.0...ccccette ete ee ees 325 Section 487 2...ccccee ete ete teens 325 Section 488 0.0...ccccette eee nes 325 Section 664 0.0... . ccccceee eee t eee e tees 39 Section 667.61 (a), (b), (d), and (e) ............... 307, 309, 319 Section 667.61, subdivision (a)............... 7, 8, 319, 377, 379 Section 667.61, subdivision (a)(2) ......... 0. cece eee eee 380 Section 667.61, subdivision (d) .............. 7, 8, 319, 375, 377 Section 667.61, subdivision (d)(3) .............04. 302, 303, 319 Section 667.61, subdivision (€).............0 00 ce ee eee 7, 8,319 Section 667.61, subdivision (e)........... 0.0... e eee 7, 8,319 Section 667.65, subdivision (d)(3) .......... 0.0. e eee ee eee 321 Section 667, subdivisions (b)-(i) . 0.2... cee cece ee 7 Section 830.35, subdivision (C).. 0.0... 0... ce cece ee eee 209 Section 87 20...cececee ee nese anaes 242, 347 RULES California Rules of Court rule 8.360(B)(1) 2.0...ceeeee ent ene 494 rule 8.600, subdivision (a) ..... 0.0... cece cece eee tenes 1 xlv INSTRUCTIONS CALJIC No. No. No. No. No. No. No. No. No. No. No. No. No. No. No. No. No. No. No. No. No. No. No. No. 2.02ceeeee eee 303, 307, 310, 312 290, 291, 310 3.02eeeeee 256, 272, 290, 291, 319 3.30eccee eee 303, 308, 312, 318 3.31. eee ee eee ee eee eee ee 303, 309, 310, 312, 319 OO320 A256, 367 257, 259, 320, 325, 396 B24eeence tenes 256, 320 321, 325 8.30Leeee eee 331, 340, 353, 354, 368 366, 367 B80.ceeeee 290-292, 321, 325 BBLo eee ees 225, 226, 325 eS225 S 469, 474 477 a477 B88ceeeee eee 472, 479, 483, 484 0256 o325 950ceeeee eee cent eee ene 380 380 a310, 312, 321 xlvi OTHER 2 James Wilson (Liberty Fund, Kermit L. Hall & Mark David Hall eds., 2007) Collected Works 0.0... ccc cc cece eee e ens 127 2 Story, Commentaries on the Constitution ofthe United States (4th ed. 1873) 540-541 0ceceteen eee eens 128 4 William Blackstone, Commentaries on the Laws ofEngland ... 130, 133 Amnesty International, “The Death Penalty: List of Abolitionist and Retentionist Countries” (Nov. 24, 2006), on Amnesty International website [Www.amnesty.org] ... 0.0... ccc cece cece eee eens 490 Butler & Moran, The Impact ofDeath Qualification, Beliefin a Just World, Legal Authoritarianism, and Locus ofControl on Venirepersons' Evaluations ofAggravating and Mitigating Circumstances in CapitalTrials (2007) 25 Behav. Sci. Law 57-68 2.2.0.0... 0... c ccc cee cence 124 CaliforniaProposition34, the_End_theDeathPenaltyInitiative(2012) .............. 110 Crimes and Punishment Act of 1850 .... 0.0.0... cc ec cece eee 356 Falk, Article: Novel Theories ofCriminal Defense Based Uponthe Toxicity ofthe Social Environment: Urban Psychosis, Television, Intoxication and Black Rage (March 1996) 74 N.C.L. Rev. 731... 0.2.0.0... eee eee 360 Goldklang, Note: Post-Traumatic Stress Disorder and Black Rage: Clinical Validity, Criminal Responsibility (Fall 1997) 5 Va.J.Soc. Poly & L.213 2...ccccee eee 360 Grier & Cobbs (1968) Black Rage... 6... ccc ccc eens 360 http://ballotpedia.org/wiki/index.php/ .............0.00 cece cece 110 http://en.wikipedia.org/wiki/CSI:CrimeScene_Investigation. ......... 166 http://en.wikipedia.org/wiki/Demographics_ofCalifornia#Religion ... 125 http://www.census.gov/compendia/statab/2012/tables/12s0077.pdf .... 125 xlvii http://www.gallup.com/poll/1606/death-penalty.aspx ............... 125 http://www.prolades.com /glama/CRCC%20demographics%20%20Los%20Angeles.htm ....... 125 http://www.religioustolerance.org/execute.htm ............. 00.00. 125 Kennedy, Lecture: The David C. Baum Lecture: “Nigger!” As a Problem in the Law (2001) 2001 U.IILL.Rev. 935.0... 2... eee eee eee 353, 360 Lamprey, Comment: Brown v. Sanders: Invalid Factors and Appellate Review in Capital Sentencing (2006) 84 Denv.U.L.Rev. 743 ......... 233 Lyonet al., Panel Two-The Capital Jury: The Negative Effects of Capital Jury Selection (Winter 2005) 80 Ind. L.J.47 ........ 0.0.0... 22005. 124 Nat. Assoc. OfMedical Examiners, Forensic Autopsy Performance Standards, Am. J. Of Forensic Medicine & Pathology (Sept. 2006), vol. 27, issue 3, stds B4, BS, pp. 200-225 2...eeeee 215 Poulin, Prosecutorial Inconsistency, Estoppel, and Due Process: Making the Prosecution GetIts Story Straight (2001) 89 Cal. L.Rev. 1423, 1425. eeeee eee eee ee een teen ene e ees 446, 449, 452 Proposition 115 2.0... eeeeccette tenes 298 Rogers, Accomplice Liabilityfor Unintentional Crimes: Remaining within the Constraints ofIntent, (1998) 31 Loy. L.A. L. Rev. 1351 ......... 274 Rozelle, The Principled Executioner: Capital Juries' Bias and the Benefits ofTrue Bifurcation (2006) 38 Ariz. St. L.J. 769 2.0... cece eee 124 Soering v. United Kingdom: Whether the Continued Use of the Death Penalty in the United States Contradicts International Thinking (1990) 16 Crim. and Civ. Confinement 339 ..... 0.0... cee ce eee 490 Stats. 1998, ch. 629, §1 2...teeee 225 xlvili White (1989) Fact Finding and the Death Penalty: The Scope ofa Capital Defendant's Right to Jury Trial 65 Notre Dame L. Rev.1 ........... 128 www.deathpenaltyinfo.org/capitalpunishment.pdf. .................. 97 xlix IN THE SUPREME COURT OF THE STATE OF CALIFORNIA Defendant and Appellant. THE PEOPLE, ) No. 8111342 ) Plaintiff and Respondent, ) Los Angeles County ) Sup.Ct. No NA039436-02 VS. ) ) WARREN JUSTIN HARDY, ) ) ) ) Automatic Appeal from the Judgmentofthe Superior Court State of California, County of Los Angeles, No. NA039436-02 Hon. John David Lord, Judge Presiding APPELLANT’S OPENING BRIEF STATEMENT OF APPEALABILITY This is an automatic appeal from a final judgment followingtrial and a judgment of death which disposesofall issues between the parties and is authorized by Penal Code'section 1239, subdivision (b), and the California Rules of Court, rule 8.600, subdivision (a). ' All future statutory references are to the Penal Code unless otherwise noted. INTRODUCTION The night ofDecember28, 1998, in Long Beach changedlives forever. It began with a chance, late night, drunken encounter between appellant Warren Hardy, his two companions, and Penny Sigler. Hardy, his younger brother Jamelle Armstrong and Kevin Pearson,all young black men who had been drinking earlier throughout the evening, walked a Long Beachstreetlate at night. They saw Sigler, a middle-aged, white woman, walking towards them. She yelled and cursed the young men, calling them “niggers.” Hardy and his companions crossed the street to confront Sigler. The situation escalated violently out of control. Sigler was left dead after being raped, penetrated with a woodenstick, beaten, and her property taken. Three young men were sent to death row. An all-white jury found Hardy guilty based almost entirely on his own statements to police. There were no percipient witnesses whotestified, and very little forensic evidence. Thejury found Hardy wasanaiderorabettor, not the principal. Jurors were unconvinced Hardy personally used the wooden stick used to beat Sigler and penetrate her. Yet, jurors sentenced Hardy to death following a penalty trial where the prosecution argued Hardy was the leader of the three men whoattacked Sigler. Hardy’s leadership role was speculation, and unlikely to say the least. Hardy dropped out of the tenth grade, has an I.Q of only 83, and had been lifelong follower. His age of 22 years hardly gave Hardy seniority over his companions Pearson and Armstrong, who were 21 and 18, respectively. Notonly was Hardy dwarfed mentally, he also was physically dwarfed by the other two men. Pearson was aboutsix feet tall and weighed around 175 pounds. Armstrong wasfive feet, 10 inchestall, weighing about 160. Hardy came in at a diminutive five feet, four and 150 pounds. Hardy’s height, weight, age, and low intelligence, along with his history ofbeing an underdog, made him the most improbable ofleaders. Hardy was an unwanted child ofan unwed teenage mother, whose own grandmotherthreatened to cut Hardy from his mother’s body. Hardy suffered from congenital, physical deformities, including skin abnormalities and crossed eyes, and learning disabilities. Hardy’s stepfather rejected him preferring his own son (Armstrong). Hardy’s parents frequently abused alcohol, drugs, and each other inyoung Hardy’s life. As a young adult, Hardy suffered depression and attempted suicide. Errors in the trial began early during jury selection, and continued through the penalty phase. Jury selection in Hardy’s trial, like that of co- defendant Pearson,” was markedbythe erroneous excusalofprospectivejurors * People v. Pearson (2012) 53 Cal.4th 306, 327, reversed former co- defendant Pearson’s capital conviction based on the improper exclusion of qualified jurors by the same prosecutor in Hardy’s separatetrial. 3 who had concernsover the death penalty, yet were qualified. The prosecutor exercised peremptory challenges against every black prospective juror who madeit into the jury box, and achievedajury withouta single black juror. In this classically charged racial case where three, young, black men attacked, sexually assaulted, and killed an older white woman, the prosecutor successfully and systematically excluded blacks from the jury. Duringthe guilt trial, Hardy was prevented from introducing evidence that Sigler was underthe influence ofalcohol and methamphetamine when she encountered him and his companions, calling them “niggers.” The prosecution emphasized the vicious attack and penetration, relying on the testimony of a deputy coroner. But the testifying coroner was not the one who actually retrieved and catalogued the evidence of a splinter embedded in Sigler’s cervix. Nor could he identify who had. Thetrial court gave legally incorrect and confusing instructions in multiple instances. At the penalty phase, the prosecution introduced improper aggravation of gangaffiliation and activity, and an incident when Hardy’s own son had been stabbed. Evidence of the stabbing incident included police suspicion that Hardy stabbed his own son. The prosecutor successfully prevented Hardy from introducingthe results of the police and child agency investigations into the incident, which did not result in charges or the boy’s removal from the home. Hardy wasportrayed as a hardened gangster and abuser when competent evidence supported neither. In addition to the issues touched on by this introduction, the brief discusses numerous, additional reasons why the guilt and penalty phases of Hardy’s trial detract from the reliability of the verdicts and sentence and require reversal of the judgment against him. The events on Wardlow Road on December28, 1998, were horribly violent and shocking. Yet Hardy was entitled to fair trials on guilt and punishment based on competent evidence, and hedid not receive them. STATEMENT OF THE CASE On January 8, 1999, the Los Angeles County District Attorneyfiled a felony complaint against co-defendant Kevin Pearson, and later amended the complaint on January 11, 1999, to add appellant Warren Hardy and Jamelle Armstrong. (1CT 1-10.) A preliminary hearing was held on July 29, and 30, 1999, after which all three defendants were held to answer. (1CT 40-193.) An information wasfiled on August 12, 1999, against all three defendants (1CT 195-201), and was later amended on November10, 1999 (1CT 214-219), and March 6, 2002 (2CT 368-379). On April 24, 2002, the final amended information wasfiled charging Hardy and Pearson with eight violations ofthe Penal Code.? All offenses occurred on the same date, and involved the same victim, Penny Sigler. (2CT 394-403.) Count 1 charged Hardy with thefirst degree murder of Sigler. (§ 187, subd. (a).) Count 1 also alleged as special circumstancesthat the murder was committed during the following offenses: a robbery (§ 190.2 (a)(17)(A)); a kidnapping (§ 190.2 (a)(17)(B)); a kidnapping for the purpose of rape (§ 190.2 (a)(17)(B)); a rape (§ 190.2 (a)(17)(C); and rape by foreign object (§ 190.2(a)(17)(K)). Count 1 additionally alleged the murder was intentional and involved infliction of torture. (§ 190.2(a)(18)). Count 2 charged second degree robbery. (§ 211.) * Armstong was not namedin this amended information. (2CT 394.) 6 Count 3 charged kidnapping to commit rape. (§ 209, subd. (b)(1).) Count 4 charged forcible rape while acting in concert. (§ 264.1.) Count 5 charged forcible rape. (§ 261, subd. (a)(2).) Count 6 charged sexual penetration by foreign object while acting in concert. (§§ 289, subd.(a)(1), 264.1.) Count 7 charged sexual penetration by foreign object. (§ 289, subd. (a)(1).) Count 8 charged torture. (§ 206.) Counts | through 8 alleged as an enhancementthat Hardy personally used a dangerous and deadly weapon. (§ 12022, subd. (b)(1).) Counts 3, and 5 through 7, alleged as an enhancementthat Hardy was armed with, and used a dangerous and deadly weapon. (§ 12022.3, subds.(a) and (b).) Counts 4 through 6 alleged as enhancements that Sigler was kidnapped and tortured (§ 667.61, subds. (a) and (d)); and kidnapped and a deadly weapon was used (§ 667.61, subds (a), (b), and (e)). The amended information alleged Hardy had suffered a prior strike conviction (§§ 667, subds. (b)-(i), 1170.12 (a)-(d)), and was ineligible for probation (§ 1203 (e)(4)). (3CT 393-403.) The three defendants were severed for trial, and each was tried separately. (2RT 48E, 50-51; SRT 791-792.) On October 22, 2002, the trial court bifurcated trial on Hardy’s strike prior, instructed prospective jurors and distributed questionnaires. (6RT 895-897.) On October 31, 2002, voir dire commenced, and the jury and alternates were impaneled on November12, 2002. (7RT 1084; ORT 1862-1863, 1879-1876.) Hardy made a Batson/Wheeler motion, which the court heard and denied. (9RT 1876-1885; 2CT 499.) Trial testimony commenced onNovember13, 2002. (LORT 1925.) The Jury began deliberations on the guilt phase on November 19, 2002. (11RT 2422; 2CT 587.) On November 22, 2002, the jury handed up guilty verdicts on all eight counts, finding Hardy guilty of murderas an aider and abettor. (12RT 2528-2534; 3CT 597-605.) The jury found true the special circumstances. (12RT 2528.) The jury made nottrue findings on the enhancements to Counts 2 through 5, and was unableto reach findings on the personal use enhancement to Counts 1, and 6 through 8. (12RT 2528-2534; 3CT 597-605.) The jury found true the enhancementallegation to Counts 4 through8 that the victim was kidnappedandtortured (§667.61, subds.(a) and (d)), and was unable to reach findings on whether there was kidnapping with use of a deadly weapon (§667.61, subds.(a), (b) and (e)). (L2RT 2528-2534; 3CT 597-605.) Hardy admitted his prior strike. (12RT 2537-2538.) The penalty phase commenced on December 2, 2002. (12RT 2541; 3CT 608.) The jury began penalty deliberations on December 10, 2002. (14RT 3177; 3CT 640.) Thejury returned a verdict ofdeath on December11, 2002. (144RT 3179; 3CT 643.) On January 23, 2003, the trial court heard and denied Hardy’s motion to modify the judgment of death. (14RT 3191-3203.) The trial court imposed sentence on counts 2 through 8 as follows: count 2 (robbery) a concurrent middle term of three years, doubled to six; stayed imposition on count 3 (kidnapping for rape); a concurrent middle term of seven years on count 4 (rape in concert), doubled to 14 years; a concurrent term 25 years to life on count 5 (forcible rape), doubled to 50 years to life; a concurrent middle term of six years on each of counts 6 and 7 (penetration by a foreign object in concert, and penetration by a foreign object), doubled to 12 years each; and a concurrent term oflife with the possibility ofparole on count 8 (torture). (14RT 3205-3206.) STATEMENT OF FACTS A. Guilt Phase. 1. Prosecution Evidence. a. The Three Defendants. Hardy and Armstrong were half brothers. At the time of the incident, Hardy was 22 years old; Armstrong was 18; and Pearson was 21. (11RT 2238, 2250.) The prosecutor brought both Pearson and Armstrongbeforethejury for identification. (11RT 2273, 2278.) Pearson was about six feet tall, and weighed around 170 or 175 pounds. (11RT 2252, 2278-2279.) Armstrong was aboutfive feet, 10 inches tall, and weighed about 160 pounds. (11RT 2252, 2274, 2278.) Hardy was aboutfive feet, four inches tall and about 150 pounds. (11RT 2252, 2256.) Sigler was five feet, four inchestall, and weighed 113 pounds. (11RT 2238.) b. Initial Discovery of the Crime Scene. In 1998 and 1999, George Bark workedfor Caltrans. In January 1999, Bark was working along the 405 freeway west ofLong Beach Boulevard near Wardlow Road. (10RT 2025.) Bark’sjob was picking up debris and repairing fences along the freeway embankment. While doing so, Bark found a woman’s body. (1ORT 2025.) Bark felt for a pulse, but the body wascold. Heleft the body and notified his supervisor, who contacted the California 10 Highway Patrol (CHP). (LORT 2026.) When he found the body, Bark wasat an upperarea along the freeway, looking down towardsa fence along a ditch. (10RT 2027.) The fence wasblack screen, held in place by large stakes, some ofwhich were down. (10RT 2026.) Exhibit 3A lookedlike oneofthe stakes. Exhibits 3B and 3C lookedlike broken stakes. (LORT 2027.) The wind broke the stakes. Bark picked up the bad ones, and replaced unbroken ones. (LORT 2028.) Detective Brian McMahon of the Long Beach Police Department (LBPD)arrived at the crime scene on December29, 1998, around 3:30 p.m. It was at the rear of 3395 Long Beach Boulevard, a small shopping center complex, at the intersection of Wardlow Road where Interstate 405 passed over the streets. (1IRT 2221, 2223.) Wardlow Road ran east to west. Long Beach Boulevard ran north to south. (11T 2225.) A small retaining wall ran from the drainage ditch to the sidewalk of Wardlow,separating the parking lot and stores from a small, triangular shaped area adjacent to the sidewalk. The crime scene wasa triangular area. (1IRT 2222-2223.) There wasa lot of leaves, debris, bushes and eucalyptustrees. A chain link fence ran along the drainage ditch andthe rear ofthe buildings to Long Beach Boulevard. (11RT 2223.) The drainage ditch from Long Beach Boulevard to Wardlow Road was about 410 feet. (11RT 2231.) The fence 11 was about a foot away from the back wall of the businesses. (11RT 2227.) The fence andthe cinder block wall intersected. (11RT 2223.) The fence that separated the parking lot was aboutsix feet high. Right next to the fence was the cinder block wall, which was about three and a half to four feet high. (11RT 2239.) A portion of the chain link fence had been pulled back. Someone could have squeezed through, but it would have been difficult. (11RT 2240; Exh. 16A.) The fence was bent downin different areas along its entire length. (11RT 2240.) The fence had black mesh nylon, held up by woodenstakes, that kept debris from washing down the embankment. (11RT 2224.) Photographs of the area taken by LBPD personnel on December29, 1998, showed the body and a broken woodenstake. (11RT 2224, 2226 -2229; Exh. 16 [photo board], 23.) The body was approximately 150 feet south of Wardlow Road, approximately in the mid-building area. (11RT 2231.) The body wasabout35 feet from the chain link fence, and about the samedistance from the wall. (1IRT 2238.) Placard 27 in one photograph (Exh. 16H) markedthe location ofa shoe. (11RT 2230.) It was a very dark area, even in the late afternoon when the photographswere taken. (11RT 2231.) There were no lights in the back ofthe businesses. There were nostreet lights on either Wardlow Road or Long Beach Boulevard. There waslighting in the parking lot that illuminated only 12 the lot, not the back of the businesses or the embankment. (11RT 2233.) A group of photographs depicted the body the way it was found. (11RT 2242; Exh. 11.) It was difficult to see the body becauseofthe location,the lighting, and the mulch ontop of it. (11RT 2242-2243.) Two photographs (Exh. 23C, 23D) showedseveral small areas ofblood splattering on the wall. There also wasblood on the bushesthat wasdifficult to photograph. (1 1RT 2235-2236.) Theclosest blood splatter to the body was about 10 to 12 feet away. (1IRT 2249, 2247.) There was a large amountof splatter in the drainage area, and drag marks over the mesh fencing and through the mulch. (11RT 2249.) The splatter in the drainage ditch was about 12 feet from the body. (1IRT 2228.) The body had been deposited with mulch piled on top. (1IRT 2249.) Later, McMahonfoundand picked up a stake that waslater introduced as evidence. Hedid not believe it was the weapon used, but was a similar item to what could have been used. McMahonfoundthe stake on the embankment after the prosecutor requested one. It was just for demonstration, but was not the instrumentused in the crime. (11RT 2251.) Sigler’s death occurred around 11:00 p.m. to midnight on December28, 1998. (11RT 2250.) Sigler lived about one half to three quarters of a mile away, at 342 Main. (11RT 2237.) 13 c. The Food Stamp Booklet. At some time before the homicide, a shipment of 2,000 Los Angeles County food stamps wassent to the Nix check cashing store at 6583 Atlantic Boulevard, number 106, in Long Beach, California. The shipment included food stamps with the serial number F02520550V. (1ORT 2034.) Joseph O’Brien had been with Sigler earlier on the night of her death. The parties stipulated ifO’Brien had beencalledto testify, he would havetestified that on December29, 1998, he gave Sigler a $10 food stamp coupon book containing $5 and $1 coupons to buy soda and candy. O’Brien had obtained the food stamps from Nix check cashing store on Atlantic Boulevard. Sigler left home between 10:00 and 11:00 p.m. That wasthe last time O’Brien saw Sigler. (1ORT 2065.) Los Angeles Police Department (LAPD) Detective Paul Edwards assisted other detectives assigned to the case. On January 6, 1999, Edwards returned to the crime scene after receiving information that Sigler was in possession of food stampsat the time of her death. (LORT 2050-2052.) He wentto the crime scene along the south side of 3395 Long Beach Boulevard, a small strip mall. Edwards scoured the area ofthe small, triangular, wooded area that was the crime scene. He found a single white sock. (1ORT 2054.) At the opposite end of the building, on the southeast side, there was a ladder 14 leading to the roof. At the foot of the ladder, he found the cover of a food coupon book. (10RT 2054.) The inside cover bore the serial number F02520550V. (1ORT 2057.) The Lorena Marketwaslocated at 6625 South Broadway, Los Angeles, California. (JORT 2036.) Efrain Garcia managed the family run business. (10RT 2035.) Approximately 30 percent ofthe market’s business wasin food stamps. Usually, if a customer had a food stamps book, Garcia did not look at the customer’s face. (LORT 2036.) Garcia recognized Hardy though, and remembered seeing him in the market between Christmas 1998 and New Year’s Eve 1999. (1ORT 2046.) Hardy cameinto the market and bought food for children with food stamps. (10RT 2044, 2046.) Garcia also recognized photographsofother individuals as customers who cameto the market. Those photographs Garcia recognized included those ofDamion Monson, Maurice McDaniel, and co-defendant Armstrong. (1ORT 2047.) Garcia also viewed aphotograph ofco-defendant Pearson. Garcia thought he recognized Pearson, but was not sure. (ORT 2049.) Police came to the market, and asked Garcia about food stamps. The market deposited food stamps once a month. (1ORT 2037.) Although the market had madea depositjust before the police came,it still had food stamps received between December23, and 30, 1998. (ORT 2037-2038.) Garcia’s 15 father retrieved the stamps from their home. (10ORT 2038.) Twoofthe food stampsborethe serial numberF02520550V. (LORT 2038-2039; Exh. 18A-B.) Garcia recognized the market’s stamp and account numberonthe food stamps. (1ORT 2040.) d. Search and Seizure at Hardy’s Home. Edwards executed a search warrantat 1:15 a.m. on January 7, 1999, to search 335 % West 69" Street, where Hardy lived. (10RT 2057-2058.) Edwardsseized a gray gym bag from the north closet ofthe master bedroom. Inside the gym bag were a brown checkedshirt, Nautica blue jeans, and a green long sleeved sweater with a blue stripe. In the same closet, Edwards found a brown rimmedhat, a white T-shirt, and American Eagle blue jeans. Under the bed, Edwards found black Guess jeans, and shoes with an unusual circular pattern on the soles. (1ORT 2058, 2062.) The same unusualpattern on the soles of the shoes appeared in a photograph takenat the crime scene. (LORT 2059.) Next to the bed, Edwards found a shoe box containing a PacBell telephonebill in Hardy’s name. (1ORT 2058.) In a tin can onthe television in the master bedroom, Edwards found a food stamp coupon with a different serial numberfrom the booklet found at the crime scene. There were several black leather jackets in the master bedroom. Oneleather jacket hung on the 16 door to the bedroom, and appeared to have bloodstains on it. (ORT 2059; Exh. 13A.) Edwards searched a second bedroom in the northwest corner of the house, which appeared to be the children’s room. The room had twobeds. Edwards found a blue Travel-Lite gym bag underneath the pillow at the head ofthe bed closest to the door. The bag contained a North Carolina sweatshirt, a tan Dickiesshirt, tan Dickies pants,.a football jersey, white shirt, blue jeans, Arizona brandoveralls, and black Redwoodboots. (LORT 2059-2061, 2063.) Hardylater identified the overalls as belonging to Armstrong, and the boots as belonging to Pearson. (11RT 2166-2167.) There was an employmentapplication in Hardy’s nameonthe televison stand in the living room. (1O0RT 2059-2060.) e. Hardy’s Statements. LBPDDetective Steven Prell questioned Hardy on January 7, 1999,at the police station. (ORT 2067.) Hardy was in custody,then transportedto the interview room where he remained from 2:00 to 5:00 a.m., and was advised of his rights at 5:10 a.m. (11RT 2172.) The interview concludedat 1:15 p.m. the following day. (11RT 2173.) At the start of the interview, Prell and his partner Brian McMahonintroduced themselves. (LORT 2067, 2069.) Taping of interviews was not the normal protocol. A visible tape recorder made 17 people inhibited and nervous. Generally, Prell interviewed people offtape to avoid covert recording. (LORT 2069-2070.) At 5:10 a.m., Prell advised Hardy of his rights using a form (Exh. 25). (LORT 2071.) Hardy wrote his name on the form,initialed each of six phrases, and signed. (LORT 2073-2075.) Prell printed his name on the form, and McMahonsigned it. (1ORT 2075.) Prell told Hardy the detectives were investigating a murder that occurred on December30, 1998, but hedid notinitially disclose the location ofthe murder. (1ORT 2076-2077.) Hardy made three unrecorded statements, and one recorded statement about the incident. (JORT 2076, 2152; 11RT 2175.) The first and second statements were made during a single session lasting about an hour and 25 minutes. (LORT 2090.) In the first statement, Hardy denied any involvement whatsoever. Hesaid on the nightofthe incident he wasat his mother’s house near Seventh and Redondo, at Monte Gmur’s house, and then took a busto his ownresidence on 69" Street. (10RT 2076, 2079.) Hardy said Gmur’s house wasin the area ofAnaheim and Cedarin Long Beach. Prell estimated this was two to three miles from the crime scene. (1ORT 2077.) Hardy awokeat his home. His friend Shawn drove Hardy to his mother’s housein the area of 7" and Redondo where Hardy picked up someclothes. Shawn then drove Hardy | to an adult bookstore in Long Beach,then back home to Los Angeles. (10RT 18 2079-2080.) While at the adult bookstore, Hardy bought edible panties, and Shawn bought a dildo. The two went to a fish market in South Central Los Angelesat 120and Avalon, then back to 69" Street. (LORT 2080.) The two ate something from Burger King. (1ORT 2081.) WhenHardywasnot forthcoming,Prell asked ifHardy had heard about a murder, or watched the news about a woman found on the side of the freeway. (LORT 2081-2082.) There were newscasts and newspaperarticles about the murder. The newscasts attempted to identify the woman. (1ORT 2082-2083.) Hardy then made a second unrecorded statement. He said he received a call at his home on 69"Street informing him about the newscasts. (LORT 2083.) His fiancé’s mother, Trisha Gartner, called. (JORT 2084.) After the call, Hardy’s fiancé turned on the television to watch the newscast. Prell had searched Hardy’s residence on 69"Street before questioning Hardy. (1ORT 2085.) An inventory ofitems seized had been prepared although Prell had not seen it. He learned from other officers what items were seized. (1ORT 2085- 2086.) Prell asked about the clothing seized from Hardy’s residence because he was trying to determine whose clothes they were. (JORT 2085.) Prell asked Hardy whether he owneda leather jacket. Hardy said he owned a black 19 leather jacket that was hanging on the door knob behind the bedroom door. Prell thought Hardy said there was one leather jacket, and it belonged to Hardy. (1ORT 2086.) Prell thought Hardy said co-defendant Armstrong had borrowed Hardy’s leather jacket. Hardy said that on the day he wentto the adult bookstore, he first went to his mother’s house. Heretrieved the jacket from his mother’s house where Armstrong hadleft it. (LORT 2087-2088.) Prell asked about shoes, and Hardy admitted he had shoesat the 69" Street residence, and that he worea size nine. Hardy said the last time he had been in Long Beach was on December 29, 1998, around 7:30 p.m. It was after he left the adult bookstore in Long Beach. (1ORT 2088.) This was the day after the murder. (11RT 2165.) During the second statement, Hardy provided no other information about his whereabouts on the night ofthe murder.* (1ORT 2089.) Hardy said he left Gmur’s house, and rode buses back to his home in Los Angeles. He admitted he might have the dates wrong, and could have been confused by one or two days. Prell testified that Hardy was going back and forth in his statement becausehe wasgetting dates confused. At one point, Hardysaid he * Prell’s initial testimony on this point was inconsistent with his later testimony whenhe described details Hardy provided during his second unrecorded statement. (See e.g., 11RT 2164-2168.) 20 was on a bus, or buses. Whentold he had been seen on busesandidentified, Hardy deniedriding a bus that night. (LORT 2089-2090.) Following a 15 minute break, Hardymade a third unrecorded statement. In an attempt to prompt Hardy,Prell informed Hardythe platformsareas ofthe rail system in Los Angeles had video surveillance cameras. (1ORT 2091.) Prell told Hardy that his brother, Armstrong, was in custody. (LORT 2092.) Hardy became visibly shaken and upset. Hardy asked Prell to prove Armstrong wasin custody, then Hardy wouldtell the truth. Hardy wanted to see Armstrong. Instead, Prell wrote the date on a piece of paper, and gaveit to Hardy to write whatever he wanted on it. (LORT 2093.) Hardy wrote, “I love you.” (1ORT 2094; 11RT 2245-2246; Exhs. 26, 28.) McMahontookthe paper into Armstrong while Prell remained with Hardy. McMahonreturned with the paper and a developing Polaroid. Hardy watched the picture develop. (See 10RT 2133, 2134; Exh. 29.) He wasvisibly upset and crying. Hardysaid he wouldtell the truth. (LORT 2095.) Hardy began his final statement, which Prell ultimately recorded. Hardy talked about the activities at Gmur’s house with the music studio in Long Beach. (10RT 2096.) Hardy and Pearson went to a liquor store and boughtNight Train, Thunderbird, Cisco, and Old English. (11RT 2178.) They mixed all the liquor together, and began drinking. (11RT 2178.) Hardy, 21 Armstrong, Pearson, Chris, and a man Hardy knew only as Boulevard, left Gmur’s house around 11:00 or 11:30 p.m. and wentto the Metrorail platform. (1ORT 2099, 2101.) Chris and Boulevard boarded southbound. Hardy, Pearson and Armstrong went north to Wardlowstation in Long Beach. (1ORT 2100.) From thestation, the three walked to a bus stop. They walked east on Wardlow,on the north sidewalk, towardLongBeach Boulevard. (10RT 2101- 2102.) When Hardy and his two companions reached the other side of an overpass, there was a white female on the south sidewalk of Wardlow. She yelled, “fuck you, niggers,” at them out ofthe blue. They did not provokeher. (ORT 2102-2103; 11RT 2178, 2179.) The three men crossed the street together toward her. (LORT 2102-2103; 11RT 2179.) Hardy suspected she made the remark because she was drunkor on drugs. (1IRT 2184.) Hardy reported that somethingjust“clicked” when she madetheracial slur. He said he heard voices, but did not know whosevoices. (11RT 2180.) After crossing the street, all three men approached the woman. Hardy asked, “who the fuck you calling nigger?” Everyone began yelling at one another. The next thing Hardy remembered the woman wason the ground. Hardy did not know how the woman got on the ground. CORT 2103.) The woman waslying on the ground on her back. Hardy removed her shoes. He began to climb up an 22 embankmentalongside the freeway. He intendedto throw her shoes on top of a building, but he lost his footing and slipped. The woman waslying on the ground nude and on her back. The next thing Hardy knew he was downonthe ground next to her. She was nude and bloody. Hardy did not know how she got bloody. Hejust realized she had a bloody face. The womanaskedfor help in a faint voice, and extended her hand to him. (ORT 2104; 11RT 2180.) She used the words, “help me.” (11RT 2174.) He did nothing whenshe askedfor help. She was lying there nude, bloodied, and asking for help. Pearson told Hardy to collect the clothes, and Hardy did so. He gathered clothes from around the woman’s body, and placed them into a brown grocery bag. He collected one shoe. (1ORT 2105.) The shoe was near the woman’s head. (10RT 2106.) As Hardy picked up the shoe, Pearson and Armstrong jumped over a wall or fence. (LORT 2106.) Hardy followed them over a wall to the other side of the fence. (LORT 2105, 2106.) The three men then crossedthe street to the bus stop on Long Beach Boulevard, north of Wardlow. All three boarded bus number60 to Los Angeles. (LORT 2106-2107.) Pearson had the bag with the woman’s clothing. (1ORT 2107.) While on the bus, Hardy argued with another passenger. (1ORT 2107, 2134.) Hardy, Pearson and Armstrong exited the bus near Florence Avenue to transfer to another bus. 23 After they were on the second bus, Hardy noticed Pearson no longer had the bag of clothing. (LORT 2134.) They exited the bus at Grand, then went to Hardy’s house on 69" Street. (LORT 2135.) Prell and McMahontalked to Hardy about getting a court order for a dental impression from him, Pearson and Armstrong. The detectives told Hardy a test would show whether a sex act had occurred with the woman. Hardy denied having sex with the woman, but admitted he bit her once on the “chest area.” (ORT 2136.) Hardy said he touched the womanthree times: once whenhebit her on the chest area, twice when he punchedherin the jaw, and whenhe checkedherpulseor herneckto see if she was breathing. (11RT 2167, 2185.) He bit her on the chest before she was on the otherside of the fence. (11RT 2168.) Hardy did not remember biting her anywhereelse. (11IRT 2185.) Hardy reviewed the statement he made. He confirmed the portions about Gmur’s house, going to the Metrorail, to Wardlowstation, and walking east on Wardlow werecorrect. (1ORT 2137.) Hardy confirmed the accuracy ofhis being on the north curb of Wardlow when the woman wasonthe south curb, andthat she yelledthe racial remark at them. (1ORT 2137.) Hardy then addeddetails to his earlier statement. After the three men crossedthestreet, the womangrabbedat Hardy, and hebit heron theleft breast in self-defense. 24 (1ORT 2137-2138.) The woman slapped him in the face after he bit her. Pearson directed Hardy and Armstrong to get the woman overthe fence. (1ORT 2138-2139.) He repeated that he could not recall how they got the womanoverthe fence that ran along the freeway. (LORT 2142.) Pearson, and perhaps Armstrong also, had ordered the womanto lie down. (1ORT 2139; 11RT 2169.) They were along the embankmenton the other side ofthe fence. (10RT 2139.) Pearson told Hardy to remove the woman’s shoes, whichhe did. Hardy could notrecall ifthe woman wore socks. Hardy saw Pearson unbutton the woman’s pants. Hardy turned and walked up the embankment toward the freeway while carrying the shoes. He plannedto throw the shoes on top of an adjacent building. (LORT 2139.) As Hardy walked up the freeway embankment, he saw the woman’s pants pulled down around her knees. Hardy was paying attention to several things as he was walking. Hardy lost his footing and slipped, so he was not paying total attention when he walked up the embankment. Prell suspected Hardy slipped or tripped, fell a bit, and dropped one of the shoes. (ORT 2141-2142.) Hardy was angry about falling. (1ORT 2144.) Hardy saw Pearson on top of the woman, moving up and downin a thrusting motion. Pearson was in a push-up position over the woman. She was on her back. Pearson got up, and ordered the womanto orally copulate him. (ORT 2142; 25 11RT 2188.) Prell did not recall if Hardy used the word “rape.” Hardy watched and estimated Pearson had intercourse with the woman for about a minute. It was after Hardy fell that he saw Pearson get up and order the womanto orally copulate him. (LORT 2143.) It sickened Hardy to watch. (LORT 2145; 11RT 2188.) The woman was nude. Hesaw noinjuries at that time. (ORT 2145.) Initially, Hardy said Pearson was the only one who had sex with the woman,and only for a short time before Pearson moved and had oral sex with her. (1IRT 2191.) Later, Hardy said only that Armstrong had not had sex with the woman to Hardy’s knowledge. (11RT 2192.) Hardy saw Pearson was looking for something. (1ORT 2147; 11RT 2188.) Hardy continued to be angry. Hardy wentto the woman, and punched herin thejaw twice with a closedfist. (LORT 2147; 11RT 2169.) The woman wason her back, and Hardy wasclose enoughto punch her. (1ORT 2146.) He used the right side of her body to support himself as he stood. (11RT 2171.) The woman reached out with her hand and asked for help. She used profanities, saying “you mother fuckers.” Hardy did nothing. He ignored the womanas he stood next to her. (LORT 2147.) Pearson wasstill in the area, but Hardy was not clear about Pearson’s exact location. (lORT 2146.) Armstrong appeared out of the dark carrying a woodenstick. (LORT 2148.) The stick was 36 inches long and an inch and half wide. (11RT 2189.) 26 Armstrong gavethe stick to Pearson whousedit to hit the woman numerous times in the face. (LORT 2148; 11RT 2189.) Pearson then stomped on the woman with his boots. (1ORT 2148.) The Redwood boots in Hardy’s bedroom belonged to Pearson who wore them on the night of the murder. (1IRT 2166-2167.) Hardy then gathered the clothing and one shoe. (LORT 2148.) He found a brown, plastic grocery bag in the ditch next the embankment. (10RT 2149.) Hardy climbed over the fence with Armstrong and Pearson. Hardy looked back and saw that the wooden stick Armstrong had given to Pearson wasprotruding from the woman’s vagina. (LORT 2149.) Pearson wasthe last person Hardy saw with the stick. (11RT 2190.) Hardy asked Armstrongto go back andgetthe stick. Armstrong refused. (LORT 2149.) Hardy climbed back over the fence, went to the woman, and jackedthe stick from her vagina. He had to twist the stick to remove it. The woman was bloody. (10RT 2150.) Hardy made inconsistent statements about the stick. Hardy said he threw the stick into the parking lot. He did so after he climbed over the fence and into the parking lot. Hardy also said he gave the stick to Armstrong. (10RT 2150.) Later, Hardy said he threw the stick into a dumpster. (11RT 2190.) Hardy also said that Armstrong carried the stick while the three men walked across Long Beach Boulevard. He said Armstrong carried the stick 27 while Pearson carried the bag with clothes. They walkedto the east side of Long Beach Boulevard. (1ORT 2150.) Hardy said Armstrong putthe stick into a dumpster behind the businesses on the east side of Long Beach Boulevard just north ofWardlow. The three men boarded the bus and rodeto Florence where they switched to another bus. (1ORT 2151.) Hardy said he was wearing a short-sleeved, light brown shirt, darker brownpants,three-quarter length high, black leather shoes, andablack leather jacket. (LORT 2151.) The jacket he wore wasthe one that had been hanging behind the bedroom door. (1ORT 2152; 11RT 2165.) The black leather shoes also were in the bedroom. (11RT 2165.) After Hardy madethis third unrecorded statement, Prell asked Hardy to record a statement. (LORT 2152.) Hardy gave a 44-minute long recorded statement, repeating his third unrecorded statement. (LORT 2152; Exh. 29.) Transcripts ofthe recording were providedtojurors. (1ORT 2156; Exh. 29A.) The tape recording was played to jurors. (1ORT 2159.) Hardy said he had trouble sleeping because of the vision of the woman’s hand reaching to him. Hetold no one about the incident. (11RT 2182.) He did not talk to Armstrong aboutit. All three of the men had been at Hardy’s house on 69"Street after the incident, andleft their clothing there. Hardy threw awayhis shirt and pants, but the jacket and boots Pearson wore 28 werestill at the house. (1IRT 2183-2184.) Hardy began to cry. Pearson threatened to kill Hardy if he talked. (1IRT 2186.) f. Forensic Evidence. i. The Autopsy. Raffi Djabourian, a deputy medical examiner for the Los Angeles County coroner, had performed approximately 1,000 autopsies. On January 1, 1999, he performed autopsy number 98-08891 on Penny Sigler. Djabourian’s procedure wasfirst to photograph the body, and,if there were clothes, he examined the clothing. Next, he performed an external examination on the autopsy table. (LORT 1925.) Finally, he performed an internal examination looking for evidence of injury or disease, and collecting evidence. (10ORT 1926.) In Sigler’s autopsy, there were no clothes to examine. (1ORT 1926.) Exhibit 1A-H were coroner’s photographs. Exhibit 1A depicted an abrasionto the lowerleft thigh. Exhibit 1B depicted an abrasion to the lower back. (ORT 1927.) Exhibit 1C depicted a long linear scrape on the left arm and elbow. Exhibit 1D depicted abrasions, scrapes, bruising, and contusions to the neck. Exhibit 1E depicted an eyelid with pinpoint hemorrhages. Exhibit 1F depicted an eyelid with pinpoint hemorrhages and lacerations. Djabournian explained that a laceration, contusion, or abrasion was caused by blunt force 29 traumatic injury. That meant impact with a hard object. (LORT 1928.) Exhibit 1G depicted the back right hand with bruisingat the little finger. Exhibit 1H depicted the left hand with extensive bruising, lacerations, and tearing between the websofthe fingers. (JORT 1929.) Exhibit 2 was a front and back rendition of Sigler, showing injuries to the right side ofthe face. (1ORT 1930.) The injuries were to the right side of the scalp above and at the ear, with multiple lacerations from blunt force trauma. The right ear was torn off. The left side ofthe face had injuries to the chin and cheeks, including some evulsion. (1ORT 1930.) There wasbruising on the front and back of the body, including the right shoulder, left shoulder and neck. There wasa bite mark on the inside of the left nipple. The right side abdomen had a rectangular abrasion. Both thighs showed bruising. The left thigh had bruising, abrasions and scrapes. Both lower legs had smaller bruises. Above the knee ofthe right thigh, there was a lesion or bite, similar to the lesion or bite on the left breast. (JORT 1931.) The back showed bruising to the scalp and back, and abrasions. There were scrapesto the upper and lower back, abovethe left buttocks and hips. Microscopic examination showed bleeding into underlying tissues suggesting injuries occurred around the time of death or just before death. There wasnoindication the bruising 30 was from older injuries. Any hard object could have inflicted the bruises. (10RT 1932.) Exhibit 3A-C were pieces of a wooden stake. (ORT 1933.) The exhibit was consistent with Sigler’s injuries, that is, the abrasions on the abdomen,thigh, and thelinear injury to the back. (1ORT 1934.) Exhibit 4A-J were photographsof Sigler. Exhibit 4A depicted the front andleft side ofthe face with lacerations on the left cheek, forehead, scalp, mouth and chin. (10RT 1935.) An abrasion to the right neck wasalso visible. (1ORT 1936.) Exhibit 4B was similar to 4A, except white bone wasvisible. Also, the upper lip was folded back to showtearing insider the mouth. A tooth ontheleft side was uneven, showing possible recent chipping. Exhibit 4C depicted abrasions to the right neck, and light yellow areas, which were insect bites. (LORT 1936.) Exhibit 4D showedlacerationsto the left face. Exhibit 4E showed the right face, with hair shaved to reveal lacerations and bruising to the right ear area, cheek and neck, and the torn right ear. Exhibit 4F depicted lacerations to the top ofthe scalp. Exhibit 4G depicted contusionsto the top ofthe scalp. (10RT 1937.) Exhibit 4H, taken during the autopsy ofneck muscles, showed some hemorrhaging, more prominentto the right side, with bleeding into the tissue. Djarbourian dissected the neck muscles, but could nottell ifthe injury 31 was from blunt force trauma or manualstrangulation. (1ORT 1938.) Exhibit 4J depicted the broken hyoid bone, located under the larynx. (1ORT 1039.) Exhibit 5 was a rendition of the neck area. Several areas showed bruising. Some deeper muscles showed hemorrhaging. (1ORT 1943.) The hyoid and lowercartilage of the larynx sustained horn fractures and showed hemorrhaging. Lacerationsto the face and head were depicted. (LORT 1944.) All injuries shown in Exhibit 5 were sustained while Sigler was alive. The petechia shown in Exhibit 1E was bleeding into the white of the eye. This could occur during manual strangulation, sudden heart attack and some diseases. (1ORT 1945.) The bruisingto the right face could haverelated to the petechia. Application of a stake could cause this injury if enough pressure were applied. Petechia was not commonly the result of a hit, but it could occur. (LORT 1946.) Exhibit 6A-F were photographs of the genital area before and after autopsy. (LORT 1946-1947.) Exhibit 6A depicted bruising to both sides ofthe outer genitalia. Exhibit 6B depicted a laceration and some bruising to the external genitalia. Exhibit 6C depicted lacerations, abrasions and bruising to the perineum. (10RT 1947.) Exhibit 6D depicted twolacerations to the anus. Exhibit 6E was a post autopsy photograph ofthe genitalia depicting areas of prominentbleeding, which indicated pre-death injury. Exhibit 6F depicted the 32 internal genitalia, including the cervix, which had a laceration and bruising. (10RT 1948.) The vagina near the cervix showed extensive tearing with some hemorrhaging. A splinter type object was recovered. (LORT 1949.) Exhibit 7 was a rendition ofthe external genitalia depicting lacerations and bruising. (1ORT 1949-1950.) There wasa laceration to the vaginalarea, and a splinter was well embeddedinto vaginal tissue. There were lacerations to the anus, approximately four inches from the vaginal opening. The injuries to the genitalia and anus were from a foreign object. (LORT 1951, 1952.) A male penis could not cause these types of injuries except in a young child or the elderly. Sigler was 43 years old. (LORT 1952.) Exhibit 3A-C (pieces of a woodenstake) were consistent with the injuries, especially Exhibits 3B and 3C, which were smaller pieces and tapered. (LORT 1952-1953.) Exhibit 3A was quite large, and Djabourian could not excludeit, but Exhibits 3B and 3C were more likely. (ORT 1953.) Djabourian expected the injuries to the genital area were pre-death because of the amount of bleeding. All injuries occurred in a very narrow time frame. (10RT 1976.) Exhibit 8 was two envelopes containing small, approximately two millimeter specksor splinters, other loose debris and a larger piece ofwood. (ORT 1953-1955.) Djabourian did not know where these items were recovered. (10RT 1954-1955.) He could not read the handwritten report, 33 which he wrote. (LORT 1954, 1956.) He did not know from the report who recovered these items from Sigler. Dr. Pena supervised Djabourian during the autopsy. It was possible Pena recovered one. (1ORT 1954-1955.) Djabourian recalled only the smaller, approximately two millimeter pieces. (1ORT 1956.) Djabourian and Pena both examinedthe genital tissue. (1ORT 1957.) Exhibit 9 was a rendition ofthe right, left, and front of the head. It showed multiple lacerations to the forehead, a scrapeto the right side, the torn right ear, bruising, and scrapes andlacerations to the chin. (1ORT 1957-1958.) The middle rendition depicted the front face, head, upper chest and neck. There were bruises on the right side neck with abrasions. There were lacerations to the left side cheek and left temple. The chippedleft tooth was depicted. (1ORT 1958.) These injuries were consistent with the pieces ofthe woodenstake. (LORT 1959; see also Exhibit 3.) The third rendition depicted the left side ofthe face with bruisingto the scalp and left cheek, lacerations to the left forehead, and exposed bone on the upper left cheek. (1ORT 1958.) The injuries in Exhibits 7 and 9 appeared to be pre-death injuries. (10RT 1961.) Exhibit 10 was a rendition of injuries noted during the autopsy. The skull bone was fractured on the right side, pushedand broken into several pieces. (JORT 1959.) The rightorbit, cheek bones andjaw werefractured and 34 pushed inward. Bonesat the base ofthe skull were fractured, including a long linear fracture. (1ORT 1960.) The linear fracture showedsignificant force to the right side of the skull. The left lobes of the back and middle brain were bruised. These bruises were consistent with an injury to the base ofthe skull. The injuries in Exhibit 10 appeared to be pre-death injuries. (ORT 1961.) Exhibit 10 depicted injuries that were the cause of death. While the bleeding wasrelatively small, when brain tissue has tremendous traumait can cause death in various ways. The brain short circuits, and prevents normal functioning whenthe coveringto the brain is torn. These injuries caused the brain to stop functioning. The brain did not send messages to the heart or lungs. That was one mechanism to explain death. (LORT 1962.) Several mechanisms were involved. Djabourian could not determine which injury caused death. The cause of death was multiple injuries to the head and neck. (10RT 1963.) The head injuries would have beenrelatively rapidly fatal. (10RT 1976.) If Sigler had been hit to the head and neck with a big stick (Exh. 3), this could have rendered her unconscious,similar to a concussion, but more severe. (1ORT 1974.) The blunt force injuries were the predominantfactors causing death, but it was difficult for Djabourian to exclude manual strangulation with possible asphyxiation. While there were no finger marks on the neck, a stick could have been squeezed onto the neck, or stomping on 35 the neck could have caused asphyxiation. (1ORT 1975.) There would not necessarily be fingerprints with manual strangulation. (1ORT 1976.) Exhibit 11A-D depicted the right thigh. (1ORT 1963.) Thelesionto the right thigh (Exh. 11D) wasconsistent with a bite mark. There were 114 total wounds: 94 of which were external, and 20 of which were internal. It was difficult to conclude how longSiglerlived, but death would have been rapid, that is, within minutes ofher injuries. (1ORT 1964.) Djabourian did not know the order ofthe injuries. He did not countthe fractures, but there were atleast 10 to the skull and oneto the right rib. There were defensive woundsto the backsofthe hands and forearms. There wasbruising to theleft little finger, and the left hand at the knuckles, the wrists, and backofthe left middle finger. (1ORT 1965.) There were lacerations to the webs betweenthe index and ring finger, and the ring andlittle finger. These were defensive wounds. (10RT 1966.) Other injuries to the hands could have been defensive, Djabourian was not sure. (LORT 1967.) The defensive injuries occurred while Sigler was conscious. Other injuries posed a difficult question as to whether they occurred during consciousness. Nothing about the injuries indicated whether Sigler was conscious. (1ORT 1972.) Djabourian could determine pre-death injuries from bleeding, but could not determine consciousness. His opinion, that some 36 injuries were pre-death, was based on microscopic viewing ofthe tissues. (LORT 1973.) It was very difficult to conclude which injuries occurredfirst. (10RT 1976.) The long linear scrape (Exh. 1C) may have been scraped along the sharp portion ofa fence. Other injuries were consistent with being thrown over a fence, specifically the multiple abrasions. (ORT 1967; Exh. 1B.) The petechia (Exh.1E) was consistent with compression to the neck by someone whohad a heavy shoe. (1ORT 1968.) Any blunt force could be painful. The two bite marks showedbleedinginto the underlyingtissue, which meant they were pre-death. The bites could have been close to the time of death. (LORT 1968.) The injuries to the genitals were consistent with blunt force trauma. The genitalareais sensitive, with numerousnerve endingsright under the skin. Djabourian did not know the amountofpain these injuries caused, but believed they would have been extremely painful. The location of the splinters would have been painful. (1ORT 1971.) This was similar to something in the eye, except the eye was much moresensitive. (ORT 1972.) ii. DNAEvidence. Paul Colman, a criminalist with the Los Angeles County Sheriff's Crime Laboratory, wasprimarily responsible for the forensic analysis ofDNA evidence. (1ORT 1979-1980.) DNA was the same throughout life and throughoutall parts ofthe body. (1ORT 1982.) DNA evidence had been used 37 forensically since 1985. (ORT 1982.) Except for identical twins, everyone’s DNAwasunique.’ (LORT 1981.) The DNAofbrothers shared somepatterns, but werenot identical. Colman did not know whenhe conductedhis analysis that two samples (from Hardy and Armstrong) were from halfbrothers. (1ORT 2013.) On March 7, 2000, Colman received four reference samples and 12 unknownsamplesfor analysis. (LORT 1986.) Colman analyzed samples taken from overalls and brown pants (Exh. 12) and from leatherjacket (Exh. 13). (1ORT 1992-1993.) The parties stipulated to the chain of custody. (10RT 2031-2032.) Colman compared the samples from these exhibits to known samples from Hardy, the other two co-defendants, and Sigler. (ORT 1995.) The leatherjacket had a mixture ofDNA, with major and minorcontributors. (1ORT 1995-1996.) Sigler was a major contributor. Codefendant Armstrong wasa possible donorfor the minortypes on the leather jacket. (LORT 1996.) The brown pants contained a DNA sample that was a clear match to Sigler. (1ORT 1999.) Colmanalso swabbed a bite mark on Sigler and analyzed that sample. (1ORT 1999-2000.) This sample revealed a mixture with contributors from two sources. Colman could notidentify a major or minor contributor, but > Colmantestified analysis of acquired DNA can be used to distinguish the DNAofidentical twins. (LORT 2019-2020.) 38 concluded the sample consisted of Hardy’s and Sigler’s DNA. (ORT 2000, 2006.) Based on two different methods of calculations, each based on different assumptions, Colman concludedthe bite mark was made by Hardy. (10RT 2006-2012.) Hardy waivedhis constitutional rights to trial, and admitted his prior conviction on December9, 1997, for attempted robbery (§§ 664, 211) in case number NA030710. (12RT 2538.) Defense counsel joined, and agreed there wasa factual basis for Hardy’s admission. (12RT 2538.) B. Penalty Phase. 1. Prosecution Evidence. a. The 1996 Robbery Prior. Cory Garrotestified he and his wife Grace Garro were vacationing in Long Beach,California on December8, 1996. (12RT 2566.) The Garros went to dinner at the Hyatt, then walked back along the boardwalk totheir hotel. (12RT 2566.) Cory Garro noticed three black mento the couple’s left as they walked. (12RT 2566-2567.) The three men came within 10 feet of the Garros, approaching them ontheleft and the right. Cory Garro felt a gun pressedinto his chest, and he was:asked for his wallet. Garro handedoverhis wallet while the man with the gun remained in front. Garro’s hands were up. His wife wasto his side. (12RT 2567.) Garro could see out of the corner of 39 his eye that one of the men grabbed his wife’s purse. She screamed loudly. The mantrying to take the purse gave up,andall three men ran away from the hotel. They were unable to take Garro’s wife’s purse. (12RT 2568.) A security guard heard Garro’s wife’s screams. Police arrived within afew minutes. (12RT 2568.) Later that evening, Garro attended a field show- up that was about a five-minute drive from the hotel. He observed the show- up from a distance ofabout 47 feet, and was unable to makean identification. Attrial, Garro did not recognize Hardy. (12RT 2569.) Karl Mouchan, an LBPD detective received a radio dispatch call just after dusk. While proceedingto the location, Mouchan saw a person running who metthe description ofone ofthe suspects. (12RT 2572-2573.) Mouchan wasdriving a black and white patrol car, which he stopped. The suspect was Hardy, who hid under a parked van. (12RT 2574.) After another officer arrived, Mouchan persuaded Hardy to come out from under the van. Hardy made the statement, “I bet he said I wasn’t the one with the gun.” (12RT 2574.) Hardy offered to take Mouchanto another suspect. (12RT 2577.) At Hardy’s direction, Mouchan drove to a house in west Long Beach. The house was vacant. Hardy said it was “Eddie” they were looking for, and maybe he had moved. (12RT 2578.) Hardy told Mouchan about “Chocolate,” but Hardy wanted a deal before saying more. Hardy said he wasnot the one 40 with the gun. (12RT 2579.) He wanted to be released. Mouchan told Hardy he would be booked. (12RT 2579.) Hardy told Mouchan he, Eddie and Chocolate were walking when Chocolate said, “let’s get some.” That meant get some love from females. Hardy told the others as long as there was no gun, he was okay. Whenthey said “break,” Hardy ran. Chocolate had the gun. (12RT 2581-2582.) Hardy directed Mouchanto a secondlocation, which was supposed to be Chocolate’s residence. (12RT 2580, 2583.) Chocolate was not there. (12RT 2583.) Garro’s wallet was recovered nearthe robbery site. (1L2RT 2583.) At around 2:00 a.m. on December9, 1996, Mouchan went to Garro’s hotel lobby to show Garro photographs of suspects. (12RT 2569.) Garro identified Reginald Wilson as the man whoheld the gun to Garro’s chest. (12RT 2570, 2583.) Garro’s wallet was returned to him around the same time. His money was missing. Garro’s wife was shaken and hysterical, and had been affected ever since. (12RT 2570.) b. 2006 Injury to Hardy’s Son. On April 11, 2006, LBPD police officers Jacinto Ponce and Philip Cloughsey responded to a 911 call from Hardy’s residence in Long Beach. (12RT 2586-2587, 2598.) The 911 call consisted of screaming, followed by a hang up. (12RT 2626.) Ponce had been to the residence several hours 41 earlier, but was not sure of the time. The 911 called concerned a child who had been stabbed. (12RT 2587.) When Ponce and Cloughsey arrived, Hardy washolding his four- or five-year old son with a bandage onthesteps of the apartment trying to comfort him. (12RT 2588, 2598, 2624.) Hardytold the child to say it was an accident. (12RT 2588, 2626.) Hardy held the boy the whole time. Paramedicsarrived. Hardy would not release the boy, who had to be forcibly removed from Hardy’s hold. Hardy repeated aboutfour times the instruction to the boy to say it was an accident. (12RT 2589.) The boy reported to police that his injury was an accident. (12RT 2598, 2619.) Ponce spoke to Hardy aboutthe incident. (12RT 2589.) Hardy said he had keys in his pocket, and the keys stabbed the child. Ponce thoughtthere would have been blood on Hardy, but there was not. (12RT 2590.) Cloughsey recalled Hardy said he hadonly keys in his pants pocket. (12RT 2625.) Later, Hardysaid he pickeduphis son, and his son was impaled on the knife. (12RT 2592.) Hardy said he had a knife in his front pants pocket with the blade upward facing. Hardy’s son was in Hardy’slap, and the boy’s left thigh was stabbed. (12RT 2612.) When Ponce told Hardy he had no holesinhis pants, Hardy changedhis story. (12RT 2592, 2613.) Hardy said he had a knife in his front pants pocket for protection. Ponce read Hardy his Miranda rights. (12RT 2592.) Hardy said he picked uphis son, and his son screamed. Hardy 42 then gave another,final, story concerningthe kitchen table. Hardysaid his son hadfallen on the table and cut himself. (12RT 2593, 2613.) Hardy had picked up his son,lost his balance, andfell against the table. Then his son ranto the bedroom screaming, and Hardy saw the boy was bleeding. (12RT 2600, 2613.) Hardy’s son had large cutto his leg that appeared to be a knife wound. (12RT 2590.) The cut was onthe back ofhis thigh. (12RT 2594.) It was a bleeding puncture wound,nota slice. (12RT 2596.) Ponce lookedfor a knife. (12RT 2592.) He found a knife with a five-inch bladein a kitchen drawer. It had blood anda pieceoftissue onit, but had been wiped. (12RT 2594.) The knife was a steak knife, and Ponce believed it had a serrated edge. (12RT 2596.) Ponce smelled alcohol on Hardy. (12RT 2598.) His blood alcohollevel tested at .10, which was overthe .08 legal limit for driving. (12RT 2598, 2618.) Ponce investigated the knife and the pocket of Hardy’s pants. (12RT 2615.) The pocket wassufficient to conceal almostall ofthe knife completely. (12RT 2615.) Meanwhile, Cloughsey went to the hospital where paramedics had transported Hardy’s son by ambulance. (12RT 2627.) The boy’s injury was a puncture woundabouttwoinchesin diameter to the back ofthe leg. The boy 43 receivedstitches, but Cloughsey could not recall how many. (12RT 2628.) In the emergency room, Hardy’s son told Cloughsey that Hardy had come home and picked up somethings. Hardycalled the boy into the kitchen where Hardy picked him up. Whenthe boy wrappedhis legs around Hardy,hefelt stabbing and screamed. Hardy put the boy down, grabbeda tissue, and called 911. Hardyheld the boy until police arrived. (12RT 2629.) Cloughsey contacted Child Protective Services. (12RT 2630.) Gary Hodgson was a police officer with the Long Beach Police Department on April 11, 1996. (12RT 2642.) Hodgson went to Hardy’s residence andassistedin the investigation into child cruelty. Hodgson arrived after the emergency medical personnel and other officers already were at the scene. He searched the residence for a sharp object. (12RT 2643.) Hodgson found a knife with a five-inch blade with blood onit inside a kitchen drawer. (12RT 2644.) Thomas Rodriguez was a detective with the child abuse detail of the LBPD in 1996. (12RT 2645.) The day after Hardy’s arrest, Rodriguez questioned Hardy about the injury to his son. (12RT 2645, 1249.) Hardy said it was an accident. (12RT 2651.) Hardy said he had argued with his wife or girlfriend, and was gathering items to leave. (12RT 2646.) Rodriguez could 44 not remember the woman’s name, but thought it was Tiyare Felix. (I2RT 2651.) Hardysaid he asked permissionto kiss the two children. (12RT 2646.) Hardy had a knife in his pocket with the blade pointing upward. Helifted the children, and placed the two children on his hips. (12RT 2647.) Hardy was standing, walked into the kitchen and sat down. The knife poked Hardy. He shifted. He then said goodby, and putthe children down onto the floor. His son cried. His leg was cut. Hardy’s wife entered the kitchen. They put gauze, Kleenex, and toilet paper on the wound. Hardy’s wife called 911. (12RT 2648.) Hardy had forgotten about the knife. (12RT 2651.) Hardy admitted to Rodriguez that he initially had lied to police because he wasscared. (12RT 2649.) Rodriguez asked about the pants Hardy woreat the time his son was injured. (12RT 2649.) Hardy was wearing the same pants. There were no holes in the pants. (12RT 2650.) Cc. Events Just Before the Crime. Monte Gmur lived on Cedar Avenue in Long Beach on December29, 1998. (12RT 2652.) He had a music studio in his home. (12RT 2656.) Gmur knew Hardy. (12RT 2653.) Hardy went to Gmur’s house in December 1998 in the early evening, around 6:30 p.m. (12RT 2654, 2655 .) Hardy arrived with his brother, another man, and a neighbor. Hardy’s companions included 45 former co-defendants Armstrong and Pearson. They wanted to work in Gmur’s studio. (12RT 2655.) After about 45 minutes, Hardy left. (12RT 2656.) He returned with three bottles of alcohol: Cisco, Thunderbird and Night Train. (12RT 2657, 2659.) Hardy mixed drinks, and drank. They were at Gmur’s housethree to four hours total. (12RT 2656.) During this time, Gmur was in another part of the house for two and a half to three hours. (12RT 2660.) He wasnotin the studio unless there was a sound problem. (12RT 2660.) After three to four hours, all four men left, and returned within about 20 minutes. They returned to make a telephonecall, and asked to use Gmur’s phone. (12RT 2657.) Hardy spoke clearly, and Gmur could understand Hardy’s speech fine. (12RT 2658.) Hardy walked without any problem. (12RT 2658.) There were signs of intoxication. The four men wereloud, but not staggering. (12RT 2661.) Gmurbelieved they had been drinking. (12RT 2661.) He saw Hardy drink, but did not know how much. (12RT 2660.) Whenthe four menleft, all the alcohol bottles were empty. (12RT 2660.) d. Sigler’s Son’s Impact. Ted Keptra, the victim’s son testified. The last time he saw his mother wasabout four years before the trial. (12RT 2662.) Exhibit 30A-D were four photographs that included his mother. Exhibit 30A washis parents on their 46 wedding day. Exhibit 30B was Keptra and his mother on his fifth birthday. Exhibit 30C was the family together on Thanksgiving. Exhibit 30D was Keptra’s motherin their backyard. (12RT 2663.) Keptra was 16 years old whenhis mother waskilled. She did not work. Hehadjust started high school. She was home every day when he came home from school. After her death, holidays had passed. Initially, it was really rough without his mother. He was not accustomed to coming home from school to a quiet house. After school, they used to talk together about his school day. After her death, it was rough without her there. (12RT 2664.) The house was empty. Keptra had no brothers orsisters at home. He did not finish high school. He had no motivation. (12RT 2665.) Keptra still resided in the same house where he had lived with his mother. (12RT 26645.) They had lived there five years before her death. (12RT 2669.) She did special things for him at Thanksgiving and Christmas. She prepared dinner. She wasnot the best cook, but she tried. (L2RT 2665.) Recently, when the family celebrated Thanksgiving, Keptra thought ofhis mother. Every Christmas, he thought of her. The murder was around the holidays. He felt angry, upset and enraged. (12RT 2670.) Keptra’s motherdid the best she could for Keptra and his father, who still lived in the same house also. (12RT 2665.) Now Keptra’s father was 47 homeduring the day. Sometimes he was there when Keptra got home from school, and sometime he wasat work. Keptra always gotalong better with his mother than his father. Keptra could talk with his mother, but not his father. (12RT 2666.) Keptra did not make the funeral arrangements for his mother, but he attended the funeral. It was very rough. Keptra learned about his mother’s death when the detective knocked on their door. (12RT 2666.) Before his mother’s death, Keptra hadajob. After her death, he lost interest and quit. He recently had been working about four months. A good portion of the reason he did not work was his mother’s death. (12RT 2667.) Keptra planned to go to high school or earn a G.E.D. He wasstill affected, sad and lonely. He and his mother shared the same birthday: March 5". On his birthday, Keptra now stayed to himself, said nothing, did not celebrate, and locked himself in his room. (12RT 2668.) He thoughtofhis motherdaily, and was very angry. He wasa little relieved by the verdicts, but not really. His mother was not back. (12RT 2669.) e. Hardy’s prior. The parties stipulated to Hardy’s prior conviction. (12RT 2671.) Exhibit 31 wasa certified copy of the conviction. (12RT 2670.) 48 2. Defense Evidence. Hardy did not testify. (11RT 2267-2268.) a. Forensic Expert Testimony. Gordon Plotkin was a medical doctor who earned his B.S. and Ph.D.in biochemistry from University of California, Los Angeles. He earned his medical degree from the University ofMiami, and completed his residency in psychiatry at University of California, Irvine. (12RT 2688.) Plotkin had testified for both the prosecution and the defense in other cases. He also had been a court-appointed expert in other cases. (12RT 2689.) Plotkin examined the victim’s medical records. (12RT 2689.) The records included a toxicology report from the medical examiner. (12RT 2690.) There were fewer than 20 pages of records. Plotkin never questioned Sigler or spoke with her while she was alive. (12RT 2700.) The parties stipulated the autopsy report showed Sigler’s levels were .73 ofmethamphetamine, and .22 blood alcohol. (12RT 2690.) Plotkin also examinedthe autopsy report and Sigler’s medical records, including a hospital admission in May 1998. (12RT 2690.) In May 1998, Sigler also had .3 micrograms per milliliter of methamphetamine,and .22 blood alcohol, which was two and a halftimes the legallimit for driving. (12RT 2691.) Methamphetamineat .73 was the lowest level at which a person waslikely to be intoxicated from methamphetamine. 49 It was not a huge amount, but it was enoughfor effect. (12RT 2691.) A blood alcohol level of .22 was a significant level. (12RT 2692.) Sigler’s diagnosis at the time of her admission in May 1998 was adjustment order with depression. (12RT 2692.) The diagnosis was in the records. Plotkin considered Sigler’s symptoms, and other medical opinons. (12RT 2701.) There were different levels ofdepression: major and dysthymia, which wasa reaction to life. (12RT 2692.) The disorder waslikestress. There wasstress in paying property taxes, but most taxpayers did not end up in a psychiatric hospital. (12RT 2701.) Sigler was not adjusting in a healthy way. (12RT 2693.) Plotkin could tell some things about the night of the incident. There was a host of methamphetamineand alcohol symptoms. A .22 blood alcohol level for a chronic alcoholic could be a functioning level. Someonenaiveto alcohol use would be stuumbling atthat level. The legal limit for driving was .08, and Sigler’s level of .22 was muchgreater. (12RT 2693.) Plotkin did not know the legal limit for drinking in public. (12RT 2702.) The autopsy showedthat Sigler’s liver was normal. (12RT 2703.) Alcohol was a central nervous system depressant. It was not a mood depressant. (12RT 2701 ) Alcoholwaslike valium. The effects were worse | if the user was depressed. (12RT 2706.) Methamphetamine wasa stimulant 50 and washighly addictive. (12RT 2693.) It was 180 degrees different from alcohol, but there was no balancing effect between the two. (12RT 2702.) Methamphetamine was similar to the caffeine in coffee except it was many times more potent. Over the counter precursors to methamphetamine caused irritability, jitters and sleeplessness. These symptoms were multiplied with methamphetamine. (12RT 2494.) A stimulant increased aggression. (12RT 2704.) The combination of all three: a disorder, methamphetamine, and alcohol, resulted in poor impulsivity. (12RT 2494.) After a few drinks, a person became“lubricated.” Sigler was much more. For example,ifone saw a person on the street who looked peculiar, a normal person would not say anything. A person underthe influence would, or might, comment. (12RT 2695.) Sigler, being high on methamphetamine and alcohol, was probably more sedated and suffered loss ofjudgment. (12RT 2705.) Plotkin did not knowifSigler was sedated or aggressive. He extrapolated based on her blood alcohollevel of .22. (12RT 2705.) Plotkin considered a hypothetical situation where Sigler saw the three, young, black defendants and allegedly made the racial epithet, “fuck you niggers.” Plotkin could not opine whether Sigler might have said something like that ifshe were high. He could not speculate about the methamphetamine 51 and alcohol effects. (12RT 2695.) A disorder would cause a racial epithetif a person were prone. Then there would be a increased likelihood of the behavior, but the person would have to be prone. The person would haveto have a propensity. (12RT 2696.) Stimulation causes aggression,irritability and maybeviolence. With alcohol a person would be morelikely to fight and have poor judgment. The disorder in May 1998 was not whatthe victim had in December 1998. (12RT 2696.) Plotkin reviewed Hardy’s medical records, which showed no major mental disorder. (13RT 2861.) Plotkin considered Hardy’s alcohol abuse. There wasa report that Hardy was intoxicated at the time of the offenses. Plotkin reviewed transcripts of interviews on January 7, 1999, investigator notes, and the LBPD reports. (12RT 2697.) Hardy was impaired himself. Hardy’s comments about missing parts of his memory about circumstances surrounding the offenses were self-reporting. There was noverification. It sounded like part of an alcoholic blackout. Three bottles of alcohol was consistent with being underthe influence. Based on experience, Hardy drank only for intoxication. (12RT 2698.) Onthe night ofthe offenses, Hardy wasintoxicatedto the pointthat his memory was missing. It was twilight sleep intoxication. (12RT 2699.) The effects were the same for Hardy as for Sigler. Hardy’s judgment was 52 impaired. (12RT 2699.) Hardy remembered somedetails ofthe offenses, and remembered morein later interviews. (13RT 2856-2858.) When there was a blackout, there were no memories. Information disclosed later during the interviews could have meant Hardy wasnot forthcoming. It also could have meanthe floated in and out of the blackout state. (13RT 2858.) Events with strong stimulus were more likely to be remembered, suchasbeating thevictim, or committing rape. Events below a threshold could occur without memory. (13RT 2858-2859.) It was similar to surgery: as it lightened, the person awakened. (13RT 2860.) There wasa relationship between drunkenness and violence. Amnesia waspossible. A person who wasproneto violence could misread the circumstances. (12RT 2699-2700.) Also, there were changesin impulse control. It was like pouring gas onto a fire. (12RT 2700.) Carl Osborn was a forensic psychologist. (13RT 2906.) He was a therapist for 15 years, and was on the superior court panel. He wascontacted two years earlier to evaluate Hardyfor issues at the guilt and penalty phases. (13RT 2907-2908.) Osborn worked with Hardy for about a year and a half, for more than 40 hours, and examined him 13 times. (13RT 2908.) Osborn obtained in-depth information about Hardy from birth to the time of the incident. (13RT 2909.) He reviewed the “murder book.” (13RT 2910.) He reached three conclusions. First, the crimes were completely out of character 53 for Hardy if he had been sober. (13RT 2911; 14RT 3020.) Second, Hardy participated, but was dominated by the co-defendants. (13RT 2911.) Third, it was a crime ofpassion because Hardy wasintoxicated. Intoxication played a significant part in the events. (13RT 2912.) Hardy had noinstances of any prior sex offense or extreme violence. If Hardy drank, he “clicked.” He pushed, shoved or became suicidal. The offenses were something else entirely. They were crimes of passion. (13RT 2954.) From birth through childhood, Hardy was a tool by his mother to win back his father. When Hardy’s mother wasin high school, she learneda friend was pregnant by Hardy’s father. (13RT 2912.) She decided to get pregnant also. Forthe father, it was a “fling.” He refused to acknowledge Hardy. He abandoned them,joined the military, and provided nothing. (13RT 2913.) Hardy hadnotseenhis father in 20 years until the father visited Hardyinjail. Hardysaid his father was “phony.” It wastoolittle, too late. (13RT. 2915.) When Hardy’s mother was pregnant with him, his grandmother threatened her. There were accusations about the father, shame and embarrassment. About four or five months after he was born, Hardy’s mother attempted suicide by overdosing. (13RT 2916.) Hardy had birth defects: his eyes turned inwards and he saw upside down. (13RT 2916.) He always had trouble learning. Neither his mother nor 54 the school addressed Hardy’s learning problems. He repeated kindergarten. Everyonefailed Hardy. Federal law requires an individualized programming, but there was none for Hardy. (13RT 2917.) He continuedto fail, andnot to learn. (13RT 2918.) Hardy’s stepfather, James Armstrong®entered Hardy’s life whenhe was about one year old. James was a poor role model. His friends were gangsters. He was a heavy drinker and drug user. Hardy’s mother drank through her pregnancy, and drank heavily when Hardy was twoto three years old. It was a household ofsubstance abusers. Hardy’s mother Pamela admittedit affected her ability to parent. James admitted there was domestic abuse. He was physically abusive. He beat Hardy’s mother every other day over a long period of time. (13RT 2919-2920.) During Osborn’s interviews, Hardy broke down andcried at least six times. The first was when they discussed James beating Hardy’s mother. She waspassive and cried. Hardy’s job was to comfort her. (13RT 2920.) Hardy becamea caretaker to his mother. Hardy had different problems with James. His mother sided with James, and Hardy was blamed. He had no support. It was a life long theme. Hardy believed he was a burden that James did not ° James Armstrong wasthe father of co-defendant Armstrong. To avoid confusion, Hardy will refer herein to the father as James. 55 want. Hardy was blamed for everything. It started when he was young, and his motherstarted drinking. (13RT 2921.) Osborn repeatedly requested Hardy’s schoolrecords for the seventh and eighth grades. These were very important time periods. Osborn received the records for seventh grade only. Hardy dropped out the first term of tenth grade. (13RT 2922.) Hardy’s grades were D’s and F’s. He earned an A in physical education and somesports, but academically his grades wereterrible. His achievementtests were at a sixth to eighth grade level, maybe ninth. In most areas, Hardy wasin the lowest 20 percent. During a three year period, however, Hardy received one-to-one mentoring, and thrived. He earned A’s. (13RT 2923.) Hardy desperately sought a role model, which was very important for a young male. (13RT 2924.) Hardy regularly witnessed violence in his daily life. His mother and stepfather were violent. He lived in a very violent area. He saw aman gunned downin front of his house. Hardy’s aunt was raped. His mother and aunt were involved in a knife fight when they were intoxicated. (13RT 2926. 2930.) James reported the family lived in the Carmalitas project from 1989 to 1995. The children saw several killings, including police shootings. The area was a drug haven with many weapons. That environment was what Hardy expected daily. (13RT 2930.) 56 Hardy’s family saw the effects of drug and alcohol addiction. His maternal grandparents died from liver sclerosis. Both were alcoholics. His mother Pamela became an alcoholic when Hardy was twoyears old. James was on the streets with women shooting dope. James attempted recovery in 1999. (13RT 2932.) Alcohol dependencehad genetic and social factors. The Diagnostic and Statistical Manual (DSM)recognized a familial pattern of40 to 60 percent of the risk being genetic. Hardy was an alcoholic. He had the genetics. (13RT 2932.) Additionally, he had the environmental factors. During his whole life, he neverfelt like he belonged. Hedid notfit in at home or school. He was a small, poor student. He was picked on by others. His mother was poor. He dressed poorly and was ashamed. Hesearched for a placeto fit it. (13RT 2933.) At ages 12 and 13, he showedathletic gifts. He wasfast and involved in football. He also was involved in choir, and had a deep baritone voice. (13RT 2934.) There was a molestation incident with a pastor when Hardy was13. There wasa conflict between football and choir. Pastor Jackson told Hardy if he chose choir, they would go on day trips to Disneyland. (13RT 2935.) Hardy hated home,and spent nights with the pastor. The pastor molested him. He fondled Hardy and the pastor ejaculated. Hardy’s mother learned of the incident. Hardy cried when he told Osborn about the molestation. (13RT 57 2936, 2939.) Osborn received the same information from Hardy’s mother and his girlfriend, the mother ofHardy’s two children. Osborn did not accept what a patient reported as true. Osborn determined whether it was reasonable. Otherreports provided a level of credibility. (13RT 2940.) Hardy began a downwardspiral after being molested. Hardy hid behind alcohol, and was marginally involved in a gang. Before the molestation, Hardy tried in good faith. He sought a healthy place and-healthy people. (13RT 2941.) The gang provided a different home. He had a perverse kind ofworth with the gang. (13RT 2942.) Osborn administered tests to Hardy, and determinedhis I.Q. was 83, which was “pretty weak.” An I.Q. of 70 represented mental retardation. Hardy wasin the thirteenth percentile, which meant 87 percent ofpeople were smarter than Hardy. That meant almostall people, that is, four fifths, were smarter than Hardy. Most people were smarter and could trick Hardy. (13RT 2943.) Thetesting for I.Q. was completely revised in 1997, with changesto the sample size and norm. Circumstances at the time of testing, including sleeplessness and depression, could effect results. (14RT 2999.) Osborn’s opinion was that Hardy was dominated by the other two defendants. (13RT 2952.) People who knew him, such as, Albert Scales (the family pastor), James Johnson (Hardy’s former employer) and Tiyare Felix (his girlfriend), 58 said Hardy was a follower. (13RT 2952.) On the street, one needed horsepower, and Hardy did not have it. (13RT 2944.) Hardy’s urge to fit in was desperate. His only structure and family becamethe gang. He put on a good show. He was an “also ran.” He did what he was told. The same wastrue with the offenses. (13RT 2953.) At the time ofthe offenses, Hardy was driven by emotion, not thought. He was drunk. He drankall day, beginning in the morning. The racial slur wasthe precipitating event. Whenthe victim yelled “nigger,”it was aggressive, and Hardy clicked. If Hardy had been alone, probably there would have been punching. The offenses were so different from the way Hardy behaved. He was not the leader. (13RT 2955.) But he could not walk away. It was the rule of gangs. Hardy could not say no to people he perceived as being in authority. Additionally, there was fear. If one did not do as one wastold,it was serious. In prison, disobedient people could be killed. Hardy’s rage was unleashed by alcohol, and it could have continued throughoutthe incident. (13RT 2956.) Hardy was not without conscience. (13RT 2962.) He cared about people, and strongly for children. When Osborn asked Hardy about a time he had been happy, Hardy was dumbstruck and could not answer. Later, Hardy said he thought he was happy whenhis two sons were born. He wasin the 59 delivery room. (13RT 2962.) His sons gave Hardy a sense ofpurpose. (13RT 2963.) Hardy had two disorders. He was dysthymic, which meant he was downall of the time. The disorder significantly depressed the person, who struggled with life. (13RT 2947.) Hardy was quiet and withdrawn. Osborn did not recall Hardy being happy about anything. There is no major depressive episode with the disorder, no clinical depression. Greater depression followed. Hardy had twosuicide attempts, but there was limited data. From the age of 13 or 14, Hardy was constantly sad and depressed. He turnedto daily alcohol use in his teens. (13RT 2948.) After he left home, he drank and tried drugs. Marijuana made him paranoid. He drank from early morning throughoutthe day until he vomited, passed out, or both. Alcohol and dysthemia were a “very nasty reaction.” Alcohol initially acted as a stimulant and madetheuserfeel better. (13RT 2949.) It was also a central nervous system depressant. Hardy became more depressed. The individual response to alcohol varied. If a person wasdepressed and drank, initially he felt better, then a lot worse. A person with dysthemia was “seriously depressed.” Some dysthymics were violent. Others were not. (13RT 2950-2951.) The “clicking” description Hardy described was “explosive disinhibition.” Alcohol was a lubricant that caused impulsive emotions to come out. (13RT 2951.) 60 b. Hardy’s Cooperation in a 1997 Gang MurderProsecution. Robert Grace was a Los Angeles County Deputy District Attorney. In 1997, he was assigned to the hard core gang unit. (13RT 2729.) He prosecuted gang murders, including the murder case People v. Johnson/Amado, case number TA037534. (13RT 2730.) In 1997, Crips gang members stopped and boarded an MTAbus. High schoolstudents were onthe bus. The high school was in a Blood neighborhood. The Crips were rival gang. (13RT 2731-2732.) The Crips boarded to identify Bloods. A third person fired at, and into, the bus. A high school student waskilled, and her friend was wounded. Theincident occurred around the sametime Bill Cosby’s son waskilled. (13RT 2733.) Hardy wasvisiting in the area. There was a meeting of Crips, during which they discussed whatto do about Bloodsriding through the Crips neighborhood. Two of the defendants in People v. Johnson/Amado attended the meeting. The discussion was about stopping a bus, and dragging Bloods from the busto beator kill them. (13RT 2733.) The prosecution contacted Hardy, who eventually provided information and testified. The information Hardy provided was necessary to obtain conspiracy to murder convictions. (13RT 2734.) Hardy was a Bloods gang member. (13RT 2741.) The Bloods were the gang the Crips were trying to" eradicate. That could have been a motive for Hardytotestify. (13RT 2742.) 61 While witnesses in gang cases often changedtheir stories (13RT 2742), Hardy cooperated with the prosecution, and did not recant or change his testimony. (13RT 2747.) Grace was an experienced gang prosecutor. (13RT 2735.) In gang prosecutions, witnesses were reluctant to testify because they feared retaliation. (13RT 2736.) Hardy wasin the area whenthe shooting occurred. He saw a suspect running, and he identified people. (13RT 2738.) Hardy’s life was injeopardy becausehetestified. (13RT 2736.) Testifying was a risk. Grace had been so concerned about witness safety that he had not released the namesofwitnesses during discovery. (13RT 2738.) Victor Corella was an LAPD detective in the case where Hardy testified. (L4RT 2975.) The information Hardy provided helped lead to the arrest. Corella met Hardy at midnight away from Hardy’s home. It was a gang killing, and everyone involved was scared. Hardy wasscaredfor his safety, and did not wantto be seen with police. He provided key information. (14RT 2976.) Cc. Hardy’s Family Life. Hardy’s mother, Pamela Armstrong,testified. Co-defendantArmstrong was her second son. (13RT 2770.) By the timeoftrial, Hardy was 25 and Armstrong was 22. Her sons had different fathers. Pamela was 19 when she became pregnant with Hardy. She was not married to Hardy’s father. The 62 couple had been together three years, then broke up. Hardy’s father was having a baby with another girl. Hardy’s mother was jealous. She wanted a baby to get back together with Hardy’s father. (13RT 2771.) She became pregnant on purpose. Hardy’s father abandonedher and Hardy. (13RT 2772.) While pregnant with Hardy, Pamela had daily stress. After she told Hardy’s father of her pregnancy, he denied paternity. Pamela’s mother threatened to cut Hardy out of Pamela. (13RT 2790.) Hardy hadbirthmarksall over his body. (13RT 2772.) The brown spots on his skin were not tested. (13RT 2801.) His eyes turnedin or to the side. (13RT 2772.) In one of Hardy’s eyes, only the eye white wasvisible. Hehad eye surgery whenhe wasin kindergarten or elementary school, butstill had problems. Pamela married James Armstrong when Hardy wasa yearold. (13RT 2773.) Before marrying James, Pamela lived with her mother in Pasadena. From ages two through four, Hardy was clumsy, but sweet and loved. (13RT 2774.) He had been a happy baby, but with Jamesin the picture, things changed. James jumped on Pamela and beat her aroundthe fourth of July when Hardy was around two years old. Hardy was there, but Pamela could not recall if he was in the living room whenit happened. (13RT 2775- 2776.) Pamela suffered a black eye and bruising. (13RT 2776.) 63 When Hardy was older, Pamela became suspicious because she found needles and a powdery substance. She suspected James was on drugs. He would not keep a job. He worked only sporadically. (13RT 2777.) Mostly, James was unemployed. (13RT 2779.) He and Pamela argued constantly about money,food, andthe children. Hardy waspresent during the arguments. He attended kindergarten while Pamela worked. She left at 5:00 a.m., and returned home at 5:00 or 6:00 p.m. (13RT 2778.) Other people watched Hardy. Then when Hardy wasfouror five, Pamela had Jamelle (Armstrong). There was no improvementintheir lives. (13RT 2780.) After (Jamelle) Armstrong wasborn, things were the same. Pamela and James argued, and she drank heavily. Initially, things were good between Hardy and James. (13RT 2780.) Hardy and young Armstrongplayedtogether. Hardy had to repeat kindergarten. He had problems learning and wrote backwards because of his eyes. He had poor writing and could not read. (13RT 2781.) His learning disability was not tested or investigated. (13RT 2801.) Hardy liked others and wasfriendly, but other shied away from him. He tried hard. After his eye surgery, his clumsiness improved,but hestill had learning problems. (13RT 2782.) The brothers got along well, but James treated the boys differently. At first, he took both boys out together. Then he began taking only Armstrong. 64 It was like Cinderella when Hardy was older. (13RT 2783.) It was “pure hell.” They went to church because Pamela wanted something better. She was afraid her sons would be taken away from her. (13RT 2784.) Hardy liked church, and wasinvolved in Sundayschool, choir, picnics, and plays. (13RT 2788.) Pamela and James were drinking and using drugs. James would break in and steal from the family. (13RT 2784.) Pamela’s own drinking worsened. She was afraid of James and physical abuse. James was like Tarzan or a roaring lion. He bit out a chunk of Pamela’s arm. (13RT 2785.) Pamela drank to inebriation weekly. There was physical abusethatstill haunted her. She did not know ifthe abuse happened in front ofHardy and Armstrong,but they were there. She took her sons into the bedroom if she knew abuse was going to occur. (13RT 2786.) When Hardy wasolder, he tried to intercede between James and Pamela. When Hardy wasaround11 and a halfyearsold, he told James not to hit her. (13RT 2788.) Sometimes Hardytried to hit James. Hardy turned away from James, and was alwaysin trouble. His grades, which were always bad, became worse. He stayed away from home increasingly. (13RT 2789.) By the time Hardy was 13 years old, he did not wantto attend school or stay at home. (13RT 2794.) Thesituation between Hardy and James was 65 bad. Hardy wouldnotlisten to anything. He was unhappy. At the age of 13, he spent time with gang members. (13RT 2795, 2804.) He attended school up to the tenth grade, then quit. (13RT 2805.) There was some counselingat the church, but suddenly Hardy refused to go. (13RT 2796.) At 16, Hardy ran away. (13RT 2797.) Hardy wanted to commit suicide. The police brought him back home. (13RT 2798.) He said he wantedto die because no one cared about him. (13RT 2798-2799.) Pamela never sought professional help for Hardy. (13RT 2802.) Atthe age of 19, Hardy reported he had been molestedafter the pastor took Hardy home. (13RT 2796-2797.) When he was 19 or 20, and had been drinking, Hardy fought withhis girlfriend, Tiyare Felix. (13RT 2800, 2818.) He wasviolent and called her names. Then he went into the middle of the street because he wantedto get hit by a car. (13RT 2800, 2808.) This was the only time Pamela ever saw Hardyact violently. (13RT 2815.) Tiyare already had two children when she met Hardy, and they had two more children together. Hardy lovedall four children, and treated them as equals. (13RT 2813.) Oncross-examination, Pamelasaid she taught Hardyright from wrong. She taught him it was wrongto rob,rape, or kill. (13RT 2805.) It was wrong 66 for Hardy to commit crimesor violate the law. (13RT 2805, 2811.) Hardy also learned right from wrong at church. (13RT 2810.) Tiyare Felix met Hardy when he was almost 19 years old. She was a few months older. She had two sons, who were three and four years old when she met Hardy. (13RT 2818-2819.) They had been together four years. (13RT 2838.) The couple lived together in Long Beach after Hardy moved in with Felix. They had two sons together. At the timeoftrial, Hardy’s sons were five and six years old. He was a good father: loving and caring. He treated all four boys equally. All four called Hardy “dad.” (13RT 2821.) Felix was there whenher son wasstabbed. She had fought with Hardy, whohad been drinking. She told him to leave. Hardy tooktheir son into the kitchen to explain the situation. Felix heard a scream, and saw her son bleeding. (13RT 2822.) Shetalked to her son immediately, and the boy said it was an accident. (13RT 2823.) The boy said he was on Hardy’s lap when the knife cut through the pants to the back of his leg. The boy’s story never changed. (13RT 2824.) Felix and Hardylived together in Long Beach,then in Los Angeles. He worked intermittently. His last job was registering voters. (13RT 2824.) When Hardy drank there were problems. Whenhe wassober, he wassociable. When he drank, the couple argued. Hardy would black out, and remember 67 nothing. (13RT 2825.) Sometimes he wasviolent. (13RT 2825.) There was pushing and shoving, but no blows. (13RT 2826.) He had shovedher on two or three occasions. (13RT 2841.) He was neverviolent with the children. (13RT 2841.) There were continuing problems with Hardy’s behavior and moods. He was easygoing except when he drank. Then he becamecrazy. Something clicked when he drank, and he becameviolent. (13RT 2932.) In November 1998, the couple fought and Felix asked Hardyto stop living with her. This argument happenedjust before Hardy was arrested. (13RT 2845.) After he moved out, he moved back orvisited more and more frequently. He stayed until the children went to bed, then left. (13RT 2846.) In 1996, Hardytried to kill himself. (13RT 2834.) The couple had argued. Hardy put a cord aroundhis neck andpulledit tight. He wentto the closet and pretended to be dead. He wasthere about an hour. Felix called the paramedics. (13RT 2835.) Then again in 1996, he had been drinking and threatened suicide. He put a gunto his head,and told Felix to give Hardy’scar to Armstrong. (13RT 2836.) At Thanksgiving in 1997, the couple attended a family get together. Felix and Hardy argued. She wentto the car. Hardy - followed her and pushed her. He threw himselfin front ofthe car. He wanted to go to jail. (13RT 2833.) Hardy’s mother came out for him, and Felixleft. (13RT 2933.) 68 The couple hada healthysex life. They did nothing perverted. Hardy told Felix about an incident when he was 19. (13RT 2827.) He had been hurt and held it inside. (13RT 2827.) Felix said Hardy got along with his brother Armstrong. (13RT 2827.) Hardy was a follower. His gang involvement was through his half-brother Curtis. (13RT 282.) Hardy was knownin the gang as Little No Good. (13RT 2844.) Hardy neverled anyone except the children. (13RT 2828.) Hardytried unsuccessfully several times to contact his biological father. (13RT 2829.) Felix met co-defendant Pearson twice. She usually did not affiliate with Hardy’s friends. (13RT 2930.) d. Hardy’s Work and Church Activities. Albert Scales was a doctor, and the overseeing bishop for Victory Center Community Churches ofVisions Anew Community. He wasa pastor, and had known Hardysince he wasfouror five years old. Scales saw Hardy and his family twoto three times a week. (13RT 2683.) Hardy’s family lived close to the church. There were drinking problems when Hardy wasa child. (13RT 2865.) Scales counseled Hardy’s mother and stepfather for over 20 years. (13RT 2866-2867.) James was unemployed. Helived in an alley with drugs, violence, gang and fighting. (13RT 2867.) Pamela worked, but was drinking. James was involved with drugs, and came to church under the 69 influence. The kids were not cared for. James was jealous ofHardy. (13RT 2868.) There was spousal abuse. (13RT 2870.) Once James came to the church, and pulled Pamela outside. He was violent. James and Hardy were yelling at each other. (13RT 2872.) When Hardy wasolder, Scales learned Hardy was in gangs. Scales told Pamela, and told Hardy to avoid gangs. (13RT 2869-2870.) Scales never saw Hardy act mean-spirited. (13RT 2872.) James Johnson knew Hardy because Johnson worked with Hardy’s mother. (13RT 2751-2752.) Johnson went to the Hardy house for Christmas dinner. Hardy was 12 or 13 years old when Johnson met him. Later, they became close. When Hardy was 18 years old, he wasin training program. Johnson wasthe instructor and a job developer with the Century Community Training Program. The program found menin the neighborhood and taught them construction skills. (13RT 2752.) Hardy participated in the program and completed the course. Hardy wasdifferent from others in the program. He only did what he wastold to do. He lackedinitiative to complete ajob. (13RT 2753.) Johnson pushed Hardy, who wanted to learn, but was not fast at learning. Hardy neededa little more help than others. (13RT 2754.) Johnson continued his relationship with Hardy after he completed the eight week program. Hardy seemed to wanta job; he had two children. He had no car, and that madeit very difficult. (13RT 2753-2754.) Johnson met 70 Hardy’s wife. He obtained a refrigerator and stove for them. Johnson had a businessinstalling low-flow toilets. It was a small business without employee benefits. Hardy workeddaily for Johnson for about a year in 1994 and 1995. (13RT 2755, 2758, 2761.) Johnson either picked Hardy up for work, or Hardy rode the bus. (13RT 2755.) Hardy worked well. He watched others and learned. Hardy never madethefirst move. Johnsontried hard to get Hardy to take the initiative, but Hardy was a follower, not a leader. After a while, when Hardy knewtheroutine, then he took the initiative. (13RT 2756.) Johnson’s company wentout ofbusiness. Johnson had no workofthis type when Hardy stopped working for Johnson. (13RT 2765.) Johnson did not contact Hardy when Johnsonstarted a new business because the new jobs required greater skills than what Hardy possessed. Hardy’s only skill wasinstalling toilets. He did not know plumbing. (13RT 2768.) Hardy had no alcohol problems on the job, but he had alcohol tendencies. Johnson wasa 17-year recovering alcoholic. Hardy did things to himself and caused problemswith his girlfriend. Hardy drank to the point he was unable to care for himself. He made wrong choices. (13RT 2757.) C. Prosecution Rebuttal. Monte Gmur was at home on December29, 1998. (14RT 3036.) Hardy came to Gmur’s house with Pearson and Armstrong. Gmur heard Pearson and 71 Hardy debating, including the comment,“you ask him.” (14RT 3037.) Hardy stood in the hall behind Pearson. (14RT 3038.) Pearson asked to use the room, saying they wanted to put Chris on the block to initiate him in a gang. (14RT 3042, 3084.) Gmursaid no. The men wentinto the room for about 20 minutes, then left with Chris. (14RT 3042.) Hardy asked to use Gmur’s telephone, and called “Capone.” Hardy said they hadjust put Chris on, he was cool, and he was “Playboy.” Thenall four left. (144RT 3043.) There was nothing unusual about Chris. He was not injured. They were all “stupid drunk” when they left. (14RT 3044.) In January 1999, Gmurreported to police that Hardy could carry on a conversation. He was loud and obnoxious. Gmurcould understand what Hardy wassaying on the phone, but he was “very intoxicated.” Gmur would not have ridden in a car with Hardy driving. He was underthe influence. (14RT 3045-3046.) On December29, 1998, Terri Aitken operated the MTA busonroute 60 from Long Beach to downtown Los Angeles from 8:00 p.m. to 4:00 a.m. The bus stopped near Wardlow Road and Long Beach Boulevard around 12:30 or 2:00 a.m., Aitken could not recall. (14RT 3048.) At the time, Aitken gave a statement to police about a gang incident on the bus. Hepicked upthree, black male gangsters at Willow, not Wardlow. Thefirst one argued overthe fare. Aitken told the passenger to pay and sit. When Aitken picked up the 72 phone, the others told the first one to pay. (14RT 2049.) The three were arguing among themselves about Crips and Bloods. (J4RT 3051.) All three exited the bus at Florence. (14RT 2049.) Brian McMahonwasthe detective whointerviewed Aitken on January 5, 1999. Aitken reported to McMahonthat three black males, who had been drinking, had a dispute with a fourth male over gangs. (14RT 3053, 3056.) Aitken was unable to identify any of the males from photographs. (14RT 3056.) McMahonalso questioned Hardy, whosaid the dispute wasover Crips, Bloods and gang colors. Hardy did not tell McMahonhe had been drinking the entire day of the incident. He said they went to the liquor store after leaving Gmur’s house, which was about two and a halfmiles from the murder site. (J4RT 3054.) It would take about 10 minutes to walk to the bus. Then the bus ride was about 10 or 15 minutes. The trip would have taken 30 minutes or more. (14RT 3055.) McMahon arrested Hardy on January 7, 1999. McMahon taped a statement. His testimony was based on that. (14RT 3090.) Hardy told McMahon he had been molested, and provided a litany of molestation, drinking, and his stepfather’s beating Hardy’s mother. (14RT 3091.) Millard Jackson wasthe pastor at First John Baptist Church in Long Beach. Atthetimeoftrial, he was ill, which caused him to speak slowly and 73 use a wheelchair. (14RT 3066.) Jackson knew Hardy and his mother Pamela. He knew Hardy betweenthe ages of seven and 10. (14RT 3067.) Jackson spoke with Pamela about Hardy’s accusations of molestation. She called Jackson, and said Hardy wason the phone and wantedto talk. (14RT 3068.) Hardy asked Jackson, “why did you do that to me?” Jackson wassurprised. Hardy said Jackson had taken Hardyto his house, told him to strip and bathe, then masturbated. Jackson asked Hardy why was doing this. Hardy commented, “See, mom,I told you he would lie.” (14RT 3069.) On cross- examination, Jackson admitted he had counseled Hardy as a young teenager. (14RT3073.) Hardy sang in the choir, and they went to Magic Mountain. Hardy spent the night with Jackson because the pastor was working with Hardy. (14RT 3075.) Hardy stayed if he wanted to, and other children were there also. Hardy did not stay over many times. Whenhe did, Hardy used the spare bedroom. (14RT 3076.) Jackson wasvery close to Hardy’s family. The entire family had stayed with Jackson. (14RT 3078.) The last time Hardy spentthe night, he was 16, but claimed he was 13. Jackson denied molesting Hardy. (144RT 3079-3080.) Steve Newmanwasa sergeant with the Los Angeles County sheriffwho worked the gang unit for 14 years. (14RT 3083.) Newman explained that jumping in was the gang initiation. Unless escorted, a new member was 74 beaten for one to three minutes. No blood or broken bones were required. (14RT 3084.) Usually the new member was downandkickedin the body or torso. Hardy hadthe tattoo “CK,” which meant Crip Killer. (14RT 2981.) The tattoo CK showedallegiance to the gang. It meant the person waswilling to be a Crip killer. (14RT 3085.) The Crips gang color was blue; the Bloods red. If a Blood member was on a bus and saw a blue bandana, the Blood would challenge. It concerned pride. If a Bloodtestified against a Crip, it would be frowned upon,but tolerated. A snitch was a snitch. (14RT 3087.) Ifa new memberhad beenjumped in, Newmanwould expect torn clothing and dirty, tossled hair. (14RT 3088.) The new memberreceived a monikerafter being jumped in. (14RT 3089.) 75 JURY SELECTION ARGUMENTS ARGUMENT I REVERSAL OF THE JUDGMENT OF DEATH IS REQUIRED BECAUSE TWO PROSPECTIVE JURORS WHO WERE ABLE TO CONSIDER ALL SENTENCING ALTERNATIVESANDFOLLOWTHE TRIAL COURT’S INSTRUCTIONSWERE IMPROPERLYEXCUSEDFOR CAUSE, IN VIOLATION OF HARDY’S FIFTH, SIXTH, EIGHTH, AND FOURTEENTH AMENDMENTRIGHTS TO A FAIR TRIAL, A REPRESENTATIVE JURY, A RELIABLE DETERMINATION OF GUILT AND PENALTY, AND DUE PROCESS. A. Summary of Argument. Aprospectivejuror may be constitutionally excused for cause whenthe juror’s position on imposingthedeatheitherprevents, or substantially impairs, that juror’s ability to follow thetrial court’s instructions, apply the law to the facts, or impose a sentence of death. Here, the trial court excused two prospectivejurors based on the prosecutor’s challenges for cause. (7RT 1101, 1132, 1256, 1270, 1308.) The prosecutor also challenged for cause other jurors who expressed concerns or scruples about the death penalty. While the trial court denied those challenges, the prosecutor later exercised peremptory challenges to remove those jurors also. Thus, the overall conduct ofvoir dire resulted in removing qualified jurors whomerely harbored reservations, or concerns, about capital punishment. The responses of the two prospective 76 jurors excusedfor cause, on their written questionnaires and during oral voir dire, revealed they wereable to considerall sentencing alternatives, follow the court’s instructions, apply the lawto the facts, and impose a sentence ofdeath. Accordingly, excusing those prospective jurors for cause violated Hardy’s rights to be tried by a fair and impartial jury, to due process of law, and the prohibition against cruel and unusual punishment under the Fifth, Sixth, Eighth, and Fourteenth Amendments to the federal Constitution, and under article I, sections 7, 15, 16 and 17 of the California Constitution. Therefore, reversal is required. (Wainwright v. Witt (1985) 469 U.S. 412, 424 [105 S.Ct. 844, 83 L.Ed.2d 841]; Adamsv. Texas (1980) 448 U.S. 38, 45 [100 S.Ct. 2521, 65 L.Ed.2d 581]; Gray v. Mississippi (1987) 481 U.S. 648, 658 [107 S.Ct. 2045, 95 L.Ed.2d 622]; Lowenfield v. Phelps (1988) 484 U.S. 231, 244 [208 S.Ct. 546, 98 L.Ed.2d 568]; People v. Holt (1997) 15 Cal.4th 619, 650; People v. Avena (1996) 13 Cal.4th 394, 412; People v. Mickey (1991) 54 Cal.3d 612, 679-680; People v. Holloway (1990) 50 Cal.3d 1098, 1112.) B. Under Controlling Legal Authorities, Granting Challenges for Cause Against Two Jurors Was Error Because Those Jurors’ Views on the Death Penalty Did Not Prevent, or Substantially Impair, Any One of Them from Considering or Imposing a Sentence of Death. Witherspoonv.Illinois (1968) 391 U.S. 510 [88 S.Ct. 1770, 20 L.Ed.2d 776], held that prospective jurors in a capital case may not be excused for 77 cause on the basis of moral or ethical opposition to the death penalty. A capital defendant’s Sixth and Fourteenth Amendmentright to an impartialjury prohibits the exclusion of prospective jurors “simply because they voiced general objectionsto the death penalty or expressed conscientiousorreligious scruples againstits infliction.” (/d. at p. 522.) Rather, proper excusal ofjurors is limited to only those jurors “who made unmistakably clear (1) that they would automatically vote against the imposition ofcapital punishment without regard to any evidence that might be developedat the trial of the case before them, or (2) that their attitude toward the death penalty would prevent them from making an impartial decision as to the defendant’s guilt.” (/d. at pp. 522-523, fn. 21[emphasis omitted].) As Witherspoon explained, “A man who opposesthe death penalty, no less than one whofavorsit, can makethe discretionary judgmententrusted to him by the State and can thus obeythe oath he takes as ajuror.” (Witherspoon v. Illinois, supra, 391 U.S. at pp. 518-519.) Adams v. Texas (1980) 448 U.S. 38,45, [100 S.Ct. 2521, 65 L.Ed.2d 581], clarified the Witherspoon standardin a capital case involving the murder of a police officer. Adams explained Witherspoon “establish[ed] the general proposition that a juror may not be challenged for cause based on his views about capital punishment unless those views would prevent or substantially 78 impair the performance of his duties as a juror in accordance with his instructions and his oath.” (Adamsv. Texas, supra, 448 U.S. at p. 45.) Rather, the requirement for death penalty qualification is only “that jurors will consider and decide the facts impartially and conscientiously apply the law as charged by the court.” (/bid.) Wainwright v. Witt, supra, 469 U.S. 412, 421, later reaffirmed, and further explained the Adams standard: A juror may be excluded only if his eeviewson capital punishment“‘prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath.’” (Ibid. quoting Adams v. Texas, supra, 447 U.S. at p. 45; see also People v. Ghent (1987) 43 Cal.3d 739, 767 [adopting same standard].) Under Adams, a prospective juror who opposescapital punishment may be discharged for cause only where the record showsthe juror is unable to follow the law as instructed by the trial court. (Adams v. Texas, supra, 448 U.S. at p. 48.) Wainwright later made clear that the prosecution bears the burden to prove a juror whom the prosecution challenges for cause, meets the criteria for dismissal. (Wainwright v. Witt, supra, 469 U.S.at p. 423; People v. Stewart (2004) 33 Cal.4th 425, 445.) This substantial impairment standard remains the test for determining constitutional juror excludability. 79 Since Wainwright, this Court has repeatedly held the substantial impairment standard is the proper standard, and has applied the standard in reviewinga trial court’s decision to discharge a juror based on opposition to the death penalty. (See e.g., People v. Holt (1997) 15 Cal.4th 619, 650; People v. Avena (1996) 13 Cal.4th 394, 412.) People v. Kaurish (1990) 52 Cal.3d 697, 699, held a prospective juror’s personal opposition to the death penalty was an improper ground to excuse the prospective juror for cause. More recently, People v. Cunningham (2001) 25 Cal.4th 926,975, held a prospective juror properly can be excluded only if the juror is unable to consider conscientiously all ofthe sentencing alternatives, including the death penalty. Even a prospective juror’s “equivocal” views, such as vague, indefinite, or unformed views on the death penalty, will not disqualify a prospective juror “so long as [the juror] could follow [the] oath to conscientiously consider the death penalty.” (People v. Pearson (2012) 53 Cal.4th 306, 331.) The erroneous granting of even a single challenge for cause requires reversal. (Gray v. Mississippi, supra, 481 U.S. at p. 658; accord In re Anderson (1968) 69 Cal.2d 613, 619-620 [applying reversal per se standard].) Reversal of Hardy’s death sentence is required becausethetrial court in this case excused two jurors erroneously underthe standards stated above. 80 C. Relevant Voir Dire Proceedings. Hardy will discuss each of the two prospective jurors who were improperly excused for cause separately, and in the order in which the challenges were made and granted below. 1. Prospective Juror DD, Number 6840. The prosecutor challenged prospective JurorDD for cause,andthetrial court excused DD. (7RT 1268-1270.) DD was a 48-yearold, married writer with one child andinterests in politics and literature. (21CT 5446.) Born in Texas, DD hadlived in California for 47 years, and in the same Los Angeles home, which he owned, for nine years. (21CT 5446-5448.) He was a successful, self-employed, college graduate. (21CT 5450-5452.) He considered himself an independent thinker, who was neither a leader nor a follower. (21CT 5450, 5457.) The voir dire questioning of DD, quoted post, demonstrated he could follow the court’s instruction, and vote to impose the death sentence. While DD considered the death penalty barbaric, he repeatedly stated he could vote to impose death if required by law. DD did not believe the death penalty was a deterrent, but nevertheless could vote to imposeit for retribution. Even after the trial court explained the law would never require imposition of a death sentence, DD said he could vote to impose the death penalty. Indeed, DD 81 maintained he would listen to other jurors, and deliberate with them. In the past, he had served on a jury where he disagreed with otherjurors, and those other jurors persuaded DDto their point of view during deliberations. Hardy’s defense counsel, and the court, questioned DD as follows: THE COURT: All right. Now, the questioning today is going to be primarily focused on yourability to keep an open mind on the penalty phase. If we get to the penalty phase ofthetrial. There are two phases in a death penalty case. Thefirst is the guilt phase, and if the jury finds one or more of the circumstances to be true, then we would go to penalty phase. There are two phases, oneis the death penalty, the otheris life in prison withoutpossibility of parole. All right? PROSPECTIVE JUROR NO.6840: J understand. THE COURT: Can you keep an open mind on the penalty phase? PROSPECTIVE JUROR NO. 6840: I believe I can. MR. YANES: Good morning, sir. I just have very few questions to ask you, but I want to makesure that weare clear, in terms of the waythis trial would work. The jury first hears the evidence ofguilt and they decide whether myclientis guilty or not guilty of the charges. If the jury finds him guilty and finds someofthe things, the special circumstancesto betrue, some ofthe more horrible things involved in this case, then we go on to a second phase and that’s where the jury decides the penalty. Okay, there are only two choices once weget there and that is death orlife without the possibility ofparole. Are you with me? PROSPECTIVE JUROR NO.6840: Yes.. 82 MR. YANES: Now, what we need to know is not what you would decide, but the fact that you couldsit in that phase ofthe trial, listen to the evidence that will be presented and make a rational decision. PROSPECTIVE JUROR NO. 6840: I believe I could. MR. YANES: Okay, and what you are going to hear is aggravating evidence and mitigating evidence in other words, bad things and good things, reasons why you should give him the death penalty and reasons why you should givelife without the possibility ofparole. We considerlife to be the lesser. You may differ with that philosophically, but for our purposes death is the worse. Life without the possibility ofparole is the lesser. PROSPECTIVE JUROR NO.6840: I understand. MR. YANES: Would you be able to accept that death is worse? PROSPECTIVE JUROR NO.6840: Yes, I do. MR. YANES: And you are going to hear evidence of aggravation, the factors of this aggravation. Other things he may have donein hislife could be factors in aggravation. And then you will hear factors in mitigation maybe things which would cause you to have sympathy for him, things about an abusive childhood, mentalissues, that sort of thing. At the end oflistening to that the judge is goingto tell you that if you find that the aggravating factors substantially outweigh the mitigating factors, then you can vote for death. If you don’t, then you mustvote forlife, could you follow that? PROSPECTIVE JUROR NO. 6840: Yes. MR. YANES:I’m not asking you ifyou would enjoy it. I want to know if you could doit. PROSPECTIVE JUROR NO.6840: Yes, I could. (7RT 1256-1258.) 83 The prosecutor and the court then questioned DD: MS. LOCKE-NOBLE: Thank you. In reviewing your questionnaire you indicate on question 178, “what are your general feelings regarding the death penalty?” and you say, you abhorit. PROSPECTIVE JUROR NO.6840: Yes. MS. LOCKE-NOBLE: You are strongly against the death penalty? PROSPECTIVE JUROR NO.6840: Iam. MS. LOCKE-NOBLE:Andyousay the execution ofpersonsin the past has strengthened your feelings against the death penalty? PROSPECTIVE JUROR NO.6840: Yes. MS. LOCKE-NOBLE: And you feel that the death penalty is cruel and unusual? PROSPECTIVE JUROR NO.6840: I do. MS. LOCKE-NOBLE: Andthat you hold these beliefs also very strongly? PROSPECTIVE JUROR NO.6840: I do. MS. LOCKE-NOBLE: Now,what is importanthereis that if you cannot impose the death penalty because you feel that you have these strong convictions, then it wouldn’t be fair either to the defendantor to the people ofthe State of California for you to sit on this jury, would it? PROSPECTIVE JUROR NO.6840: No, it would not. MS. LOCKE-NOBLE:So, honestly, can you ever impose the death penalty, based on your feelings and convictions? 84 PROSPECTIVE JUROR NO.6840: I’m not sure. I think I haveto sit in that jury room and makethat decision at the time of the deliberations. MS. LOCKE-NOBLE: But you feel that it is barbaric? PROSPECTIVE JUROR NO.6840: I do. MS. LOCKE-NOBLE: How could you impose somethingthat is barbaric? PROSPECTIVE JUROR NO. 6840: If it was necessary to follow the law, and the law said this was the only answertothis case, I believe I could doit. MS. LOCKE-NOBLE: But on question 193 youstate thatlife without the possibility of parole is the only acceptable alternative to the death penalty, isn’t that how youfeel? PROSPECTIVE JUROR NO.6840: Yes. MS. LOCKE-NOBLE: Wouldn’tit be correct to say that you would vote life without the possibility parole because you actually believe it’s worse for the defendant to spend therest of his life in prison than the death penalty? PROSPECTIVE JURORNO.6840: No,I feel the death penalty is a worse fate than life in prison. MS. LOCKE-NOBLE: Andit’s your opinion that not only is the death penalty out of step with modern society, it doesn’t deter crime andis not applied evenly? PROSPECTIVE JUROR NO. 6840: That is correct. I don’t feel that the death penalty does anything to make our world better. MS. LOCKE-NOBLE: And you feel its only purpose is for revenge? 85 PROSPECTIVE JUROR NO.6840: I -- I -- Yes. MS. LOCKE-NOBLE: How can you imposethe death penalty? PROSPECTIVE JUROR NO. 6840: The only way I could imposethe death penalty is if it was clear-cut that the law -- the law madeit very clear that the death penalty had to be imposed. I don’t feel that I’m above the law. However, I hold these convictions very strongly. I think if I sat in the jury room andit becamevery clear there was only one answer, I believe I could impose the death penalty. I won’t know that until I sit in the jury room. MS. LOCKE-NOBLE: Okay, but there are two optionshere. PROSPECTIVE JUROR NO.6840: Uh-huh. MS. LOCKE-NOBLE: Yes? You understand there are two options, only two optionsthat are provided, that guilt has been determined already and that is what we are assuming in these questions. PROSPECTIVE JUROR NO.6840: Okay. MS. LOCKE-NOBLE:Soin yourparticular case becausethere are two options, wouldn’t you alwaysvote for life without the possibility of parole, based on your convictions? PROSPECTIVE JUROR NO.6840: Again, I don’t feel that I would, if the law madeit very clear that death wascalled for in this case. MS. LOCKE-NOBLE: But the law - PROSPECTIVE JUROR NO. 6840: And I’m maybe I don’t understandthe law. Is it clear-cut to when the death penalty has to be imposed or whenlife imprisonment- THE COURT:No, you wouldbetelling -- you are sayingifthe law wasthat you have to impose, the law doesn’t say that you 86 have to impose the death penalty. I won’t betelling you. You will be telling me. Basically, the court will be asking whatis the appropriate penalty. PROSPECTIVE JURORNO.6840: So it becomesan objective decision at that point. It’s not cut and dry. MS. LOCKE-NOBLE: It’s not an objective decision. It’s subjective, it’s a subjective decision as counsel explained there will be mitigating and aggravating factors. The court will not tell you how to weigh those factors. You, as an individual, will have to determine what weight you want to give to each of the factors. And based on the weight that you provided to each one of the factors, you have to determineifthe aggravating factors substantially outweigh the mitigating factors. And that’s how you would arrive at voting for death, based on your conviction. And the court is not going to tell you it’s clear-cut in this circumstance. You vote for death in this circumstance or you vote for life. It is subjective. Do you believe that you can impose death? PROSPECTIVE JUROR NO. 6840: I believe -- I believe I could. It would be very difficult for me. I would have to have the almost everyone on the jury trying to convince methatit would be essential or necessary to impose death. MS. LOCKE-NOBLE: Would youprefer notto sit as ajuror in this particular case? PROSPECTIVE JUROR NO.6840: I would prefer not to. MS. LOCKE-NOBLE:Is that based on your convictions? PROSPECTIVE JUROR NO.6840: Yes. In the questionnaire I think I madeit clear that I would not like to sit on this jury. MS. LOCKE-NOBLE: How would youfeel if everyone on the jury was voting for death except you? 87 PROSPECTIVE JUROR NO.6840: I would feel under intense pressure. I would do everything I could to convincethejury that death was not appropriate. MS. LOCKE-NOBLE: And didn’t that happen to you once before in terms of being on a jury? PROSPECTIVE JUROR NO. 6840: I have been on a jury before, and the jury went against the way I wanted to go. The verdict went the against the way I wantedit to go. MS. LOCKE-NOBLE: And youfelt at that point in time you caved in to the majority? PROSPECTIVE JUROR NO.6840: I did. Yes, I do. MS. LOCKE-NOBLE: And knowing that and knowingthis is a much moreserioussituation, do you feel that you would, as a result ofyour previous experience,notlisten to the other jurors and hold to your convictions? PROSPECTIVE JUROR NO.6840: I would listen to the other jurors. I would hold to my convictions and I would stand up for my convictions. I would be much moredifficult to be persuaded to vote for the death penalty in this case. I think the last experience made mea stronger person towards my convictions. MS. LOCKE-NOBLE: Andis there anything -- when you go into the jury room for the penalty phase,ifyou are selected as a Juror and whenyoufirst walk in there, would you be leaning towardslife without the possibility of parole? PROSPECTIVE JUROR NO. 6840: Yes. (7RT 1258-1264.) Hardy’s defense counsel and the court had the following additional questions for DD: 88 MR. YANES: Let me put it to you very bluntly. We do appreciate your honesty telling us how youreally feel. As you know, you don’t get to this point until you have convicted Mr. Hardy ofthe crime. PROSPECTIVE JUROR NO.6840: The penalty phase. MR. YANES: Right you don’t get to that until you have convicted him. PROSPECTIVE JUROR NO.6840: Right. MR. YANES:In this case, you have convicted him of some of the chargesorall of the charges of having taken a womanoff the street, kidnapped her, robbedher, raped her, tortured her and raped her with a foreign object, killed her. In this case when you are going to hear other evidence which could convince you beyond a reasonable doubt, okay, of the guilt of Mr. Hardy, DNA-type evidence, statements from his own mouth. PROSPECTIVE JUROR NO.6840: I understand that. MR. YANES:So now youare in that state of mind when you are going into the jury room to decideto goto the penalty phase. PROSPECTIVE JUROR NO.6840: Correct. MR. YANES: You know that you have been convinced overwhelmingly that he is guilty of these charges, all right? Now,youwould agree that there are some cases where a person should get the death penalty, that they deserve it, wouldn’t you? In order for you to say you could imposeit at times, you would have to say you feel there are times whena person deservesit? PROSPECTIVE JUROR NO.6840: That’s a hard question to answer. MR. YANES:I’m saying in general. 89 THE COURT:Let me ask you was your answerto that question based on the belief that, under certain situations, the law compels youorinstructs you? PROSPECTIVE JURORNO.6840: That’s what I wasthinking. The only way I could impose the death penalty is if the law compels you to impose the death penalty. I’m talking about if it’s -- if this mitigating circumstance took place and the death penalty is called for, I would to stay within the law. I would have to imposethe death penalty. MR. YANES:Theonly thing the judgeis goingto tell you, in termsofthe law,is if the aggravating circumstances occurred, what the defendant did to the victim, that sort of thing, are so much worsethan any good things you hear about him,then you can vote for the death penalty. That’s whatthe court is going to tell you, but you haveto then decideifthose things are so much worse than the mitigating. The court doesn’t tell you to vote death. Thejudge says you have a choice. You haveheardall the evidence. You heard the bad thing and good. Now, you decide the bad things outweigh the good things then you can vote for the death penalty. Ifyou don’t think so, then you must vote for life. So the question is ifyou find that those aggravating things are so much worse would you, on your own, without the court telling you whatto do, be able to vote for the death penalty? PROSPECTIVE JUROR NO. 6840: I understand that my answerto this question is probably going to determineif] sit on this trial or not. MR. YANES: Whether youare eligible. There is still another process we are going to eliminate people. Just answer this question ifwhether yourare eligible to go onto this stage don’t do it -- don’t do it for that. Doit to be honest. PROSPECTIVE JUROR NO.6840: I’m trying to figure out. This is a huge question. Can J have a couple daysto think about it? MR. YANES: No. Weneed to know now,I’m sorry. 90 THE COURT:Thefact ofthe law is the law would never, in a death penalty case, never tell you that you shall return the death penalty, if certain factors are here, anything like that. That’s never the law. The law is simply if the aggravating factors substantially outweigh the mitigating factors then you can return a verdict of death, otherwise you can’t. If the mitigating circumstances outweigh the aggravating you wouldn’t return a death verdict. Ifyou wanted to return life withoutthe possibility ofparole you can return that period. You can return that verdict you can only. You only have the option of returning a death verdict if the aggravating factors substantially outweigh the mitigating. So knowing that would be the charge, basically, to you, would you be able to vote for the death penalty knowing the court is never going to tell you that you should or shall or anything like that? PROSPECTIVE JUROR NO.6840: I think I could, yes. (TRT 1264-1268.) Thereafter, the prosecutor challengedDD for cause, explainingDD had “hesitated numeroustimes” about whether he could imposethe death penalty, and would do so only if other jurors convinced him. (7RT 1269.) The prosecutor arguedDD abhoredthe death penalty, and even “ifthe law compels him, he’s asking for someoneelse to be the judge . . . that other people have to convince him... .” (7RT 1269.) She argued, “He can’t do it.” (7RT 1269.) That argument contradicts DD’s answers, which stated numeroustimes he could follow the law, and vote for a sentence of death. Hardy’s defense counsel argued DDstated he “believes he can set aside personalbeliefs and he did emphasize he would follow the law.” (7RT 1269-1270.) Counsel added, 91 “the fact that [voting to impose a death sentenceis] a very difficult decision should not be a reason to exclude him.” (7RT 1270.) The court granted the prosecutor’s challenge for cause, ruling: THE COURT:I sort ofhave a two-fold problem withthisjuror. One is based on his answers, at least initially, it certainly appeared that his views would prevent or substantially impair his performanceas a juror, in accordance with the law. So it would seem at the outset, that he probably could not impose the death penalty no matter the circumstances. The second problem that I have, if he was ajuror and ifthe jury did impose death, I’m not sure that that verdict would be worth much because hetold us repeatedly if it comes back with the death verdict that means 11 people voted for death and so did he. So I don’t think he will be helpful or useful to us in this case. So I’m goingto grant the people’s challenge for cause. (7RT 1270.) Uttecht v. Brown (2007) 551 U.S. 1, 10 [127 S.Ct. 2218, 167 L.Ed.2d 1014], instructed a reviewing court should consider the entire voir dire when determining a Witherspoon issue. Hardy, therefore, presented all the questioning of DD during voir dire. Hardy additionally will address DD’s written answers. The court used a 53-page, written questionnaire, with 237 questions, many with subparts. Pages 42 through 53 contained questions 177 through 237 that concerned the death penalty exclusively. (21CT 5445-5498.) The prosecutor specifically asked about only two of DD’s written answers: to 92 questions 178 and 193. (7RT 1258-1259.) DD answeredthat he abhorredthe death penalty, felt it was “cruel and unusual,” and that life without the possibility of parole was the only acceptable alternative to the death penalty. (21CT 5487.) DD viewedthe purpose ofthe death penalty as revenge (21CT 5487), which is a recognized and permissible penological purpose. (Graham v. Florida (2010) __—~ US. __ [130 S.Ct. 2011, 2028-2030, 176 L.Ed.2d 825].) When askedin writing, “Do you feel it would be impossible for you to vote against death under any circumstance?” DD’s written answer was “no.” (21CT 5488.) His written answers also revealed DD was unsure whether he would automatically vote for life imprisonment in every case. (21CT 5489.) Whenaskedin writing ifhe could “set aside religious, social or philosophical convictions and decide the penalty based solely upon the aggravating and ”mitigating factors presented ... .?” DD answered he was “not sure,” explaining, “I believe I can.” (21 CT 5491.) DD’s answers during voir dire established his ability to follow the court’s instructions on the law concerning sentencing. Despite abhorring the death penalty personally, DD repeatedly stated he could, and would,follow the law, and vote for a sentence of death. DD’s use of the words “cruel and unusual” cannot be interpreted to mean constitutionally cruel and unusual either underthe federal or California constitutions. It is a common usage, and 93 colloquially meansharsh and extraordinary, whichis a correct description of the death penalty. Likewise, as DD correctly stated on his questionnaire, the only other alternative punishmentis life withoutthe possibility ofparole. This sentencing fact was reestablished several times during voir dire when both defense counseland the court told DD there were only two sentencing choices. In excusing DD for cause,the court identified two problems. First, the court stated DD’s “answers, at least initially, it certainly appeared that his views would prevent, or substantially impair his performanceas ajuror. . . .” (7RT 1270.) As the court’s comment inherently recognized, upon further questioningDD consistently and repeatedly answered he could follow the law, deliberate with other jurors, and vote for the death sentence if appropriate. Second,the trial court noted that if DD were on the jury, and it imposed the death penalty, it would not “be worth much” because it would mean only 11 other jurors “voted for death and so did he.” (7RT 1270.) That is what any death sentence means. Further, the court’s second point recognized DD would be able to vote for death. The second point went to DD’s ability to deliberate with other jurors while standing firm under pressure to changehis decision. Thetrial court’s comment revealed there was no foundation to the court’s conclusory statement that DD was substantially impaired. Thus, neither stated 94 reason wasa proper ground, or provided substantial evidence, to excuse DD for cause. DD’s thoughtful hesitation about the death penalty did notrise to the level ofjustifying a challenge for cause. To the contrary, DD exemplified a death-qualifiedjuror who wouldlisten and apply the law, deliberate with other jurors, and be susceptible to persuasion. As Witherspoon explained, “a sentence of death cannot be carried out if the jury that imposed or recommendeditwas chosen by excluding veniremen for cause simply because they voiced general objections to the death penalty or expressed conscientious or religious scruples against its infliction.” (Witherspoon v. Illinois, supra, 391 U.S. at p. 522.) “[T]he most that can be demandedofa venireman. . . is that he be willing to consider all of the penalties provided by state law, and that he not be irrevocably committed.” (Ud. at p. 522, fn.21 [italics in original].) 2. Prospective Juror KF, Number 4283. The prosecutor challenged prospective Juror KF for cause, andthetrial court excused KF. (7RT 1320.) The prosecutorfailed to show that KF met the criteria for dismissal. (Wainwright v. Witt, supra, 469 U.S.at p. 423.) KF was a 28-year old mechanical engineer who had resided in Norwalk for two years. (20CT 5230-5233.) KF’s written answers on the questionnaire showed he was 95 more than willing to impose a death sentence. He wrote that his empathy for the victim would make a sentencing decision difficult. (20CT 5270.) He noted that while it was a “hard” decision, “some crimes offer no other meaningful response” (except death). (20CT 5270.) KF wrote that when he “was younger[he] wasfor the death penalty,” and as he grew older he became “more unsure.” (20CT 5270.) He wrote that he recognized the death penalty “was needed andwill continue to be neededin this society.” (20CT 5270.) He wrote that he “may not be able to makethe final decision for the penalty.” (20CT 5271.) KF saw the purposeofthe death penalty as “to remind people that prison is not the only consequenceoftheir actions.” (20CT 5271.) In explaining how he would choose penalties, KF wrote he “would needto see the details and the level of involvement as comparedto the others.” (20CT 5274.) In this regard, KF wrote that death would be appropriate when the defendant had “main responsibility for the actions that lead to the victim’s death.” (20CT 5274.) KF’s attitude was consistent with the prosecutor’s theory that Hardy deserved the death penalty because he wasthe leader. (14RT 3144.) KFalso thought“it .. . possible” he would vote forlife instead ofdeath “ifthe defendant wasnot the main responsible person.” (20CT 5274.) 96 During voir dire, KF stated he would try to keep an open mind when deciding the penalties. (7RT 1309.) Indeed,ifanything, KF appearedto favor slightly the death penalty overlife in prison based on the charges. He admitted he felt “more strongly more about the death penalty” based on what he had seen about Hardy’s case. (7RT 1309.) Even so, KF agreed he could keep an open mind and follow the law. (7RT 1310.) KF wasraised as Lutheran, but no longer practiced actively. He initially stated he thought the Lutheran church opposed capital punishment. (7RT 1318.) When pressed by the prosecutor, KF answered her leading question affirmatively (and incorrectly’) that the Lutheran church opposed capital punishment. (7RT 1319.) He had answered in writing, however, that he belonged to no group or organization that opposed or favored the death penalty. (20CT 5270.) Hardy’s defense counsel and the court questioned KF as follows: THE COURT: The questioning now is going to be primarily focused on whether you would be able to keep an open mind on the subject of penalty or punishment. There are two phases in a death penalty trial. The first phase would be the guilt phase, and if the jury voted guilty and if the jury found one or more of ’ KF’sresponse to the prosecutor wasincorrect. A Lutheran church website explained: “In 1967, The Lutheran Church—Missouri Synodstated its position ‘that capital punishment is in accord with the Holy Scriptures and the Lutheran Confessions.’”. Resolution 2-38 states, in part, ““Whereas, The Lutheran Confessions support capital punishment. . . , and capital punishmentis in accord with the Holy Scriptures and the Lutheran Confessions.” (www.deathpenaltyinfo.org/capitalpunishment.pdf.) 97 the special circumstancesto be true, then we would go to the second phase. At the second phase, you would be determining the appropriate punishment. There are two possible penalties, if we get to that phase, and that is the death penalty orlife in prison without the possibility of parole. All right. Do you think that you could keep an open mind and decide between those twopenalties? PROSPECTIVE JUROR NO.4283: I would try to. THE COURT: Okay.Is there some hesitancy? Do youfeel like you would almost invariably vote one wayor the other? PROSPECTIVE JUROR NO. 4283: Of what I’ve seen of the case so far, I feel strongly more about the death penalty, but - THE COURT: By what you’ve seen of what? PROSPECTIVE JUROR NO.4283: Well, just what I’ve read aboutit and the way -- also someofthe - the questions on that questionnaire. As I went throughit, when started lookingatit, I guess I don’t really feel like I have an open mind aboutit. I think I might already have some thoughts already aboutit. THE COURT: You mean the questionnaire in this case? PROSPECTIVE JUROR NO. 4283: Well, yeah. Just the way I started to look at the questionnaire and the things that was presented aboutthe case. THE COURT: OKAY. You’renottalking about reading about the case any other place? PROSPECTIVE JUROR NO.4283: No, not aboutthat. THE COURT: Well, no oneis going to dispute that the facts in this caseare horrific, all right? No oneis going to say anything other than that. 98 But what weneed for you to do, see, if we get to the penalty phase, you would have to weigh mitigating factors, that is, factors that are in the defendant’s favor, against aggravating factors, that would be factorsthat are against the defendant, and you could only vote for the death penalty if the aggravating factors substantially outweigh the mitigating factors. Now,that decision would be based on, amongst other things, on the circumstances of the crime. But we’re just, today, you know, we’re going to be makingsurethat -- you haven’t firmly fixed in your mind whatthe penalties wouldbe, right, because you haven’t heard, actually, the evidence? PROSPECTIVE JUROR NO.4283: Right. THE COURT: And you'll be able to keep an open mind,and if the aggravating factors don’t substantially outweigh the mitigating factors, you would vote for life in prison, right? PROSPECTIVE JUROR NO.4283: Yes. THE COURT: Okay. Questions? MR. YANES: Good morning,sir. PROSPECTIVE JUROR NO.4283: Good morning. MR. YANES:You know, we’re asking you these questions as to not would you enjoy doing this or would it be something pleasant, but could you just, as a man in society, be able to do your duty to your country, basically. And so we need to know ifyou can doit, all right? PROSPECTIVE JUROR NO.4283: (no audible response) MR. YANES:Soifyou gotinto the penalty phaseofthe case, my client had been convicted, all right? PROSPECTIVE JUROR NO.4283: Yes. 99 MR. YANES: Would you be able to weigh the factors and decide whether the death penalty was appropriate, or life without the possibility of parole was appropriate? PROSPECTIVE JUROR NO.4283: I wouldtry to do that. MR. YANES: Well, not try, would you be able to do it? Could you doit? PROSPECTIVE JUROR NO.4283: Well, just looking at like the survey, just someofthe beliefs I had beforethis case, I don’t know for sure what I would be able to doin the case. MR. YANES: Well, we’re not asking you what verdict you’d cometo or result, what I’m asking you is would you beable to follow the law that the judge gives you about penalty. He’s goingto tell you whathejust told you just now,basically, that you’re going to hear evidence in the penalty phase of aggravating factors, which would be someofthe horrible things that he did to this woman,things in his priorlife that he did, bad things, and then you’re going to hear mitigating evidence, good things he’s donein hislife, may be issues for sympathy, may be issues of mental illness or abuse when he wasa kid, things to make you not wantto give the death penalty. Okay. And then you have to weigh those. And the way you have to weighit, it isn’t a test ofwhat is equal or what’s little bit more,it’s got to be the aggravating, the worse stuff, the bad stuff has to substantially outweigh the mitigating, and then and only then can you vote death, if you wantto -- you still don’t have to, but you can at that point. But if the aggravating doesn’t substantially outweigh the mitigating, then you mustvote forlife; that’s the law. That’s the reason I tell you. Would you beable to follow that? 100 PROSPECTIVE JUROR NO.4283: I would try to - again, I don’t know whatI’d -- I think I understand what you’re saying, but- MR. YANES: You wouldn’t throw your handsup andsay,“TI just can’t follow the law?” PROSPECTIVE JUROR NO.4283: No. No. I would try to follow the law as muchaspossible. MR. YANES: Okay. Whatpart ofthat is bothering you? What is it that’s making you say “try” and not “you can.” Whatisit you’re concerned about? PROSPECTIVE JUROR NO. 4283: It’s just that Pve never been faced with trying to make this decision before, and I’ve neverreally thought about where my position would be- MR. YANES: Uh-huh. PROSPECTIVE JUROR NO.4283: -- on the death penalty. MR. YANES: Okay.In your questionnaire you stated that you understand the death penalty is something California should have. PROSPECTIVE JUROR NO.4283: (no audible response.) MR. YANES: Yov’re not crazy aboutit, but you understand that it has its purpose? PROSPECTIVE JUROR NO.4283: Right. MR. YANES: Correct. And you indicated also that you could vote forit if you felt it was the appropriate case. PROSPECTIVE JURORNO.4283: Right. MR. YANES: Okay. Is that what you are telling me today? 101 PROSPECTIVE JUROR NO.4283: Yes. MR. YANES: We’re not asking you if you’ddo it lightly or if you'd like to do it - PROSPECTIVE JUROR NO.4283: No. MR. YANES:-- Just could you do it. Andthis is a first time for everybody, you know,for the jurors. PROSPECTIVE JUROR NO.4283: Right. MR. YANES: Thisis their first time doing this kind ofthing, and so no one knows,exactly, what they’re going to do or how they’re goingto react until they get into the actualsituation. | guessit’s like going into combat, whether you’re going to run away scaredorfight, until it happens. Soit’s like that; no one knowsfor sure. But we do need to get some assurance from you that you can follow the law and that you’d be impartial, whether or not you like the death penalty or don’t like it. Could you follow the law and vote forit, in the appropriate case, and vote for life, in the appropriate case? PROSPECTIVE JUROR NO.4283: I understand the law and I understand, I guess, the details and instructions that will be given to me. I guess I don’t know. Like you’re saying, I don’t know whatwill happen whenI actually try to makethe decision, whetherI’1ljust look at whatis there or my personal beliefs will MR. YANES: What are your personal beliefs that you’re concerned about? PROSPECTIVE JUROR NO.4283: I guess, like I said, I was brought up in a conservative home, and I went to Lutheran High School for six years, so I’m not-- I don’t -- I’m notpracticing my religion now,but in the past I’ve had beliefs, when I was growingup andstufflike that. Soit’s kind of-- I guessit’s kind of uncertain for me. I don’t know, exactly, where I stand. 102 MR. YANES: Whatis it about your beliefs? What beliefs are there that might cause you problems? What kind of beliefs? Beliefs about what? PROSPECTIVE JUROR NO. 4283: I’m trying to getto it. Really, taking someoneelse’s life or making that decision to take anotherperson’s life. MR. YANES:All right. So what we need to know is -- let’s assume that you have somereligious issues or doctrine which causes you to feelthat it’s a problem taking someone’s life, even in this kind of - even in a legal way. We need to know if you can set that aside and be willing to consider the death penalty, when you go into the penalty phase, we need to know that you can do that. PROSPECTIVE JUROR NO.4283: I wouldtry to considerit. I just don’t know,at the end, what factor that wouldplay. MR. YANES:Sure. So what you’retelling us is you think you can do it and you’d give it your best shot, but you don’t know, 100 percentsure, ifyou can do that? PROSPECTIVE JUROR NO.4283: Right. MR. YANES: OKAY.Let megive youa little bit to help you. Let’s suppose that you’ve heard evidence which was overwelming[sic] ofguilt. Okay. It’s not whether you’re going to have any doubt, you’re really not going to have a problem, you’re going to have an overwelming [sic] conviction of physical evidence, confessions, that kind of thing. PROSPECTIVE JUROR NO. 4283: Uh-huh. MR. YANES: Andyou’re going to hear horrible stuff, you’re going to see horrible photos, things that were done to this woman. And then you’ve got to go in there and decidelife or death. Okay? Do youthink that you’d be able to evaluate those 103 things fairly, both to the prosecution and to the defense, and makea fair decision? PROSPECTIVE JUROR NO.4283: Again, I would try to. MR. YANES: Okay. PROSPECTIVE JUROR NO.4283: Again, I don’t know what will happenat the end. I mean- MR. YANES:Right. But you can’t tell me for sure? PROSPECTIVE JUROR NO. 4283: Not for sure, because I don’t know. Before this case I had never thought about these issues. MR. YANES:But you’re telling me that you think you can or you’d do yourbest? PROSPECTIVE JUROR NO.4283: I’d do mybest. MR. YANES: And you can follow the law? PROSPECTIVE JUROR NO.4283: Right. MR. YANES: Okay. Yousay that someofthe factors that you would have to know in deciding whether you could vote for death or not, would be the defendant’s involvementin the crime and the thingsthat he did, right? PROSPECTIVE JUROR NO.4283: Right. MR. YANES:So ifyou heard things that were terrible that he did and/or horrible that he did, and you found the aggravating factors and mitigating, that you’d consider that and follow the law? PROSPECTIVE JUROR NO. 4283: I would consider it . I guess the only concern that I have is just with everything that goes on in our legal system -- I wasn’t there, I wasn’t the person there. So even, I guess, in the back of my mind, I’d always 104 worry, how do I makesure that I know for sure, you know? I mean it can’t be 100 percent, it’s always secondhand MR. YANES:Okay. Well, I agree with you that in some cases that is the case. All right? This case isn’t like that. PROSPECTIVE JUROR NO.4283: Okay. MR. YANES: There is going to be physical evidence, DNA evidence, confessions- PROSPECTIVE JUROR NO.4283: Okay. MR. YANES:-- coming out of the mouth of myclient as to whathe did, and about his involvement. This is not going to be that kind ofcase where you go, oh, maybethe witness waslying and maybereally he wasn’t there, or that kind ofthing.It’s not going to be that kind ofcase. PROSPECTIVE JUROR NO.4283: Uh-huh. MR. YANES:Sotry to think ofit in removing any doubt about the actualguilt, now we’rejust talking strictly about the penalty. With that removed and just thinking about penalty, would you be able to make a decision considering death orlife? PROSPECTIVE JURORNO.4283: Yes. If] was comfortable with that; yes. (7RT 1308-1318.) The prosecutor and the court then questioned KF: MS. LOCKE-NOBLE: You indicated that you attended Lutheran High Schoolfor six years? PROSPECTIVE JUROR NO.4283: Right. MS. LOCKE-NOBLE: Although you’re not practicing at this moment, youstill have a lot of those beliefs; is that right? 105 PROSPECTIVE JUROR NO.4283: Partially because,I guess, my parents weren’t very religious, but they were very conservative. So it goes hand-in-hand,I still have some ofthe beliefs of -- I guess I’m not as structured as I once was. MS. LOCKE-NOBLE: Okay. And does the Lutheran faith believe in imposing the death penalty? They’re againstit, aren’t they? PROSPECTIVE JUROR NO.4283: I think so. MS. LOCKE-NOBLE: You know so? PROSPECTIVE JUROR NO.4283: Yes. MS. LOCKE-NOBLE: Okay. Now, you’ve indicated several times, both on the questionnaire and herein court, that you don’t know whetheror not you can set aside your personalbeliefs; is that correct? PROSPECTIVE JUROR NO.4283: Right. MS. LOCKE-NOBLE: And part of your personal beliefs include the Lutheran faith; is that correct? PROSPECTIVE JUROR NO.4283: Yes. MS. LOCKE-NOBLE: And their belief is that you cannot impose the death penalty on someoneelse, that that is god’s right; is that correct? PROSPECTIVE JUROR NO.4283: Correct. MS. LOCKE-NOBLE: And you believe that, don’t you? PROSPECTIVE JUROR NO. 4283: Yes. I mean to a certain extent. 106 MS.LOCKE-NOBLE:Andat this point in time, you cannot say for certain that you can set aside those beliefs, while you’re in the jury room;is that correct? PROSPECTIVE JUROR NO.4283: Yes. MS. LOCKE-NOBLE: And would it be a fair statement to say that it would be best if you were not a juror on this case? PROSPECTIVE JUROR NO.4283: Yes. (7RT 1318-1319.) At this point, the prosecutor asked if the court wanted to hear more, and the court asked KF to wait outside. (7RT 1319.) The court then excused KFfor cause,ruling: THE COURT:Okay. It would appear that the juror’s views on capital punishment would prevent or substantially impair the performanceofhis duties if he was a juror, in accordance with the law. So we’ll excuse that juror. (7RT 1320.) Voir dire revealed KF’s reservations about serving as a juror. KF had not before considered the death penalty, because he had “never been faced with trying to make this decision” (7RT 1312), and the fact that “before this case [he] had never thought about these issues.” (7RT 1316). Even so, KF told the court he would “be able to keep an open mind.” (7RT 1310.) When asked directly ifhe would throw his handsup, and refuse to follow the law,he said he would not do so, and “would try to follow the law as much as possible.” (7RT 1312.) He reaffirmed he could vote for the death penalty “if 107 [he] felt it was the appropriate case.” (7RT 1313.) Having not ever given the death penalty much thoughtpreviously, he explained, “I don’t know,exactly, where I stand.” (7RT 1314, 1316 [“I had never thought about these issues”].) Hedid not know whatthe result would be, but KF agreed he would giveit his “best shot,” and do his best, even though was not 100 percent sure. (7RT 1315, 1316.) KF affirmed that if guilt were established he could make the sentencing decision. (7RT 1318.) He considered himself qualified to sit on the jury because he was “educated and observant.” (20CT 5260.) The foregoing answers and exchanges demonstrated that KF was willing to consider the case before him, and could vote for death in the appropriate case ifhe were convinced ofHardy’s guilt. Of course, as a juror, KF would never have had to decide about sentencing unless he already had decided Hardy’s guilt beyond a reasonable doubt. KF madeclear he believed the death penalty had a place in California’s sentencing scheme,and served the accepted penalogical purpose of deterrence. (20CT 5270, 5271.) Indeed, he thought the death penalty was imposed “too seldom.” (20CT 5270.) While KF preferred not to sit on Hardy’s jury, and agreed with the prosecutorthatit “would be best if [he] were not a juror,” that sentiment was not a basis for excusing him. People v. Riccardi (2012) 34 Cal.4th 758, 782, held that a pro-death penalty juror who “feared that actually being on a death jury would 108 66.be difficult or uncomfortable” was “not disqualifiable under Witherspoon-Witt.” D. Reversal Is Required Because TwoProspective Jurors Who Merely Viewedthe Decision to Impose Death as an Awesome Responsibility Were Improperly Excluded. Two jurors who could follow the court’s instructions, and impose a death sentence if appropriate, were improperly excluded because each had scruples about the death penalty, and correctly viewed the decision as an “awesome responsibility.” (Caldwell v. Mississippi (1980) 472 U.S. 320, 330 [105 S.Ct. 2633, 86 L.Ed.2d 231].) Viewingthe entire voir dire, as Uttechtv. Brown, supra, 551 U.S. 1, 10, instructs, reveals the prosecutor systematically, and impermissibly, excluded death-scrupled jurors through cause and peremptory challenges. In addition to DD and KF, discussed ante, the prosecutor also challenged prospective jurors 8100 and 6750 for cause after each had expressed thoughtful hesitation concerning the death penalty. (7RT 1089- 1100, 1325-1347.) The trial court denied each of these challenges for cause (7RT 1110, 1347.) Later, however, the prosecutor exercised peremptory challenges to exclude prospective jurors 8100 and 6750. (8RT 1844, 1863.) The prosecutor also successfully challenged for cause prospective juror 0256 who stated he “probably” would not be able to vote to impose the death 109 penalty based on Catholic religious grounds. (8RT 1382, 1387; see also ArgumentII, post.) It is well settled that the prosecution’s “power to exclude for cause jurors from capitaljuries does not extend beyondits interest in removing those jurors who would ‘frustrate the State’s legitimate interest in administering harconstitutional capital sentencing schemesby not following their oaths.” (Gray v. Mississippi, supra, 481 U.S.at pp. 658-659, quoting Wainwright v. Witt, supra, 469 U.S. at p. 423.) Here, however, challenges for cause were misusedto “stack the deck” against Hardy. (Gray v. Mississippi, supra, 481 U.S. at pp. 658-659.) It is unsurprising that prospective jurors expressed concern and hesitation about imposing a death sentence. These sentiments represent accurately the “conscience of the community.” (Witherspoon v. Illinois, supra, 391 U.S. at p. 519; see also People v. Gamache (2010) 48 Cal.4th 347, 389.) Just less than half of Californians who voted in the November 2012election, voted in favor ofrepealing California’s death penalty altogether.® ® Poll data revealed 48 percentofvoters (5,974,243 voters) favored eliminating the death penalty; while 52 percent of voters (6,460,264 voters) favored retaining the death penalty. (http://ballotpedia.org/wiki/index.php/.) California_Proposition_34,theEndtheDeathPenaltyInitiative(2012). Even back in 1968, when the Court decided Witherspoon,it noted, the “divergence of belief between the juries we select and society generally.” (Witherspoon v.Illinois, supra, 391 U.S. at p. 520, fn. 19.) 110 The excusal of DD and KF wasnot “fairly supported by the record” Wainwright v. Witt, supra, 469 U.S. at p. 434), and should be rejected. — (People v. Tate (2010) 49 Cal.4th 635, 666.) For example, the trial court concluded any verdict reached by DD wouldnot “be worth much”becauseit would mean only 11 otherjurors “voted for death and so did he.” (7RT 1270.) DD’sresponsesthat he ultimately could vote to impose death, and could be persuadedto do so, were consistent with all that is required: that DD would be able to affirm the sentence if polled. (People v. Bramit (2009) 46 Cal.4th 1221, 1235, and fn. 6.) The caution expressed by DD and KF wassimilar to a juror who, although death-qualified, was reluctant to serve as the foreman. (People v. Chacon (1968) 69 Cal.2d 765, 772, disapproved on other grounds in People v. Doolin (2009) 45 Cal.4th 390.) Despite this caution, DD and KF, like the juror in Chacon werenot substantially impaired, and should not have been excused for cause. People v. Stewart, supra, 33 Cal.4th at page 446, recognized that “a prospective juror who simply wouldfindit ‘very difficult’ ever to imposethe death penalty, is entitled - indeed, duty bound- to sit on a capital jury”unless “he or she were unwilling or unable to follow the trial court’s instructions.” Certainly, DD’s and KF’s answered reflected their recognition ofthe difficulty of imposing a death sentence. Nevertheless, each stated he would beable to 111 follow the trial court’s instructions. The “special seriousness” (Adams vy. Texas, supra, 448 U.S. at pp. 50-51), with which DD and KF viewedtheir duties did not disqualify them. To the contrary, it qualified them to sit as jurors, and indeed would have guarantied that Hardy’s jury met constitutional standards. “Belief in the truth of the assumption that sentencerstreat their power to determine the appropriateness of death as an ‘awesome responsibility’ has allowed [the United States Supreme] Court to view sentencer discretion as consistent with - and indeed as indispensable to - the Eighth Amendment’s‘need forreliability in the determination that death is the appropriate punishment in a specific case.” (Caldwell v. Mississippi, supra, 472 US.at p. 330 [citation omitted].) Because DD and KF could follow the court’s instructions, despite their concerns about the death penalty, the challenges for cause should have been denied. (Cf., People v. Stewart, supra, 33 Cal.4th at p. 446; see also People v. Pearson, supra, 53 Cal.4th at p. 332.) Indeed,the State has no legitimate interest in capitaljuries composed ofjurors who would imposea death sentence without solemn consideration. Thus, this Court recognized that even a juror who “personally opposed to the death penalty may nonetheless be capable of following his oath and the law.” (People v. Stewart, supra, 33 Cal.4th at p. 446, citing Wainwright v. Witt, supra, 469 U.S.at p. 424.) 112 E. The Error in Excusing Two Qualified Jurors Requires Reversal of Hardy’s Death Sentence. The excusal of DD and KF for cause, based on only their personal concerns and hesitancy about the death penalty, and not on their inability to follow the law on sentencingas instructed bythetrial court, was unwarranted. The prosecution failed to carry its burden that excusal for cause was supported by substantial evidence. (See e.g., People v. Pearson, supra, 53 Cal.4th atp. 333.) Accordingly, Hardy’s rights under the Fifth, Sixth, Eighth, and Fourteenth Amendments to an impartial and representative jury, reliable sentencing, and due process were violated. Hardy’s case, like Witherspoon and Gray, involved the systematic exclusion of death-scrupled jurors being excused through cause and peremptory challenges because oftheir personal concems and reservations about the death penalty. “The State’s power to exclude for cause jurors from capital juries does not extend beyondits interest in removing those jurors who would ‘frustrate the State’s legitimate interest in administering constitutional capital sentencing schemes by not following their oaths.”’ (Gray v. Mississippi, supra, 481 U.S. at p. 658, quoting Wainwright v. Witt, supra, 469 U.S.at p. 423.) As in Pearson, none ofDD’s or KF’s “answers . . . suggested views that would substantially impair [their] ability to perform [their] duties by voting to impose the death penalty in an appropriate case.” (People v. Pearson, supra, 53 Cal.4th at p. 330.) DD’s and 113 KF’s seeming equivocation did not equate to views that madeeither unable to vote for death in every case. (/d. at p. 331.) Mere “vague, indefinite or unformed”viewsare insufficient to support a challenge for cause. (/bid.) Excusing DD and KF for cause represented an unconstitutional return to Illinois’ “conscientious scruples” standard rejected half a century ago in Witherspoon. “To permit the exclusion for cause of other prospective jurors unnecessarily . . . ‘stack[s] the deck,’” and violates due process. (Gray v. Mississippi, supra, at pp. 658-659, quoting Witherspoonv. Illinois, supra, 391 U.S. at p. 523.) Hardy’s sentence ofdeath must be reversed under federal and California law based on the erroneous dismissal of even a single prospective juror. (See e.g., Gray v. Mississippi, supra, 481 U.S. at pp. 665-668; People v. Pearson, supra, 53 Cal.4th at p. 333.) Based on the foregoing,thejudgment of death should be reversed. 114 I REVERSAL OF THE JUDGMENT OF DEATH IS REQUIRED BECAUSE APPLICATION OF THE SUBSTANTIAL IMPAIRMENT STANDARD TO DETERMINE DEATH-QUALIFICATION OF PROSPECTIVE JURORS VIOLATED HARDY’S FIFTH, SIXTH, EIGHTH AND FOURTEENTH AMENDMENT RIGHTS TO A FAIR TRIAL, A REPRESENTATIVE JURY,ARELIABLEDETERMINATION OF GUILTAND PENALTY, AND DUE PROCESS. A. Summary of Argument. Argument I argued the prosecution failed to carry its burden of demonstrating by correct standards that prospective jurors DD and KF were substantially impaired to serve as jurors. As an additional issue, those two prospective jurors, along with a third prospective juror, were improperly removedfor cause based onreligious or moralbeliefs, in violation ofthe Sixth Amendment, which requires the re-examination of the Witherspoon/Witt standard in light of evolving United States Supreme Court Sixth Amendment jurisprudence. Accordingly, excusing these three prospectivejurors for cause violated Hardy’s rights to be tried by a fair and impartial jury and to due process of law, and the prohibition against cruel and unusual punishment, under the Fifth, Sixth, Eighth, and Fourteenth Amendments to the federal Constitution, and underarticle I, sections 7, 15, 16 and 17 of the California Constitution. Therefore, reversal is required. 115 B. Substantial Impairment Standard for Death-qualification of Jurors. Hardy set forth the law governing the substantial impairment standard for jurors in ArgumentI, ante, and incorporates those authorities fully by this reference for the sake ofbrevity. C. Relevant Background Information of Prospective Jurors. 1. Prospective Jurors DD and KF. Hardy set forth the relevant information contained in the jury questionnaires and voir dire of DD and KF in Argument I, ante, and incorporates those summaries fully by this reference for the sake of brevity. Additionally, the questionnaire and voir dire of prospective juror 0256, ML, is provided. 2. Prospective Juror ML, Number 0256. ML was a 41-year old, married, but divorcing, self-employed electrician/engineer. (23CT 6192-6193.) He was Catholic, and considered himself a religious person. (23CT 6199.) He attended church regularly, and selected “very important” to describe how important his religion was to him. (23CT 6200.) He previously sat as a juror in a murdertrial that reached a verdict. (23CT 6200.) The prior murder case involved pictures of someone whohaddied in a traumatic manner. (23CT 6213.) ML considered himself both a leader and a follower, noting he believed a person neededto be both. 116 (23CT 6203.) ML would havenot believed, or disbelieved, the testimony of a law enforcementofficer based on the person’s status as an officer. ML’s judgmentofcredibility would “dependonif [the officer] act[ed] believable or not.” (23CT 6209.) ML wascurrently going through a divorce. (23CT 6222.) He wrote he would have no difficulty keeping an open mind until he had heard all the evidence and arguments, and been instructed by the court. (23CT 6226.) ML wrote he would be ableto follow the court’s instructions even if he did not agree with them, explaining,“it is the duty ofthe jury to follow the instructions of the court.” (23CT 6228.) Some ofML’s written responses on the questionnaire that specifically concerned the death penalty were: < He had mixed feelings about the death penalty. (23CT 6232.) < He previously had thought about the death penalty. Although his faith was against the death penalty, ML believed there were “instances where it might apply.” (23CT 6232.) < Although he was Catholic, ML did not share the Roman Catholic Church’s opposition to the death penalty. He did not know howstrongly he held these views. (23CT 6232.) Similar language appears in section 190.2, subdivision (a)(17), which providesin pertinent part “[t]he murder was committed while the defendant was engagedin, or was an accomplice in, the commission of .. . the following felonies: .. .” 222 necessarily satisfy the “during the commission or attempted commission” requirementofthe statute: [I]n his closing argument the district attorney correctly told the jurors that in order to find the charged special circumstancesto be true they mustfirst find defendant guilty of the underlying crimes ofrobbery andkidnapping. After discussing the evidence bearing on those crimes, however,the district attorney in effect told the jurors that was al/ they needed to do: i.e., that if they found defendant guilty of the underlying crimes, the corresponding special circumstances were ipso facto proved as well. The latter reasoning was unsound, as it ignored key languageofthe statute: it was not enough for the jury to find the defendant guilty of a murder and oneofthe listed crimes; the statute also required that the jury find the defendant committed the murder “during the commission or attempted commission of” that crime. (Former § 190.2, subd. (c)(3).) In other words, a valid conviction ofa listed crime was a necessary condition to finding a corresponding special circumstance, but it was not a sufficient condition: the murder must also have been committed “during the commission”ofthe underlying crime. (People v. Green, supra, 27 Cal.3d at p. 59.) In People v. Green, the evidence supported a reasonable inference the robbery may have been incidental to the murder. Also, the jury asked a question suggesting it believed the robbery wasincidental to the murder. In order to be constitutional, Green imposed the following requirement for a special circumstances felony to be foundtrue: The Legislature must have intended that each special circumstance provide a rational basis for distinguishing between those murderers who deserve to be considered for the death penalty and those who do not. The Legislature declared that such a distinction could be drawn,inter alia, when the defendant 223 committed a “willful, deliberate and premeditated” murder “during the commission”of a robbery or otherlisted felony. (Former § 190.2, subd.(c)(3).) The provision thus expressed a legislative belief that it was not unconstitutionally arbitrary to exposeto the death penalty those defendants whokilled in cold blood in order to advance an independent felonious purpose, e.g., who carried out an execution-style slaying ofthe victim or witness to a holdup, a kidnapping,or a rape. (People v. Green, supra, 27 Cal.3d at p. 61.) Green explained: The Legislature’s goal is not achieved, however, when the defendant’s intent is not to steal but to kill and the robbery is merely incidental to the murder-- “a secondthingto it,” as the jury foremanhere said -- becauseits sole object is to facilitate or conceal the primary crime. In the case at hand, for example, it would notrationally distinguish between murderers to hold that this defendant can be subjected to the death penalty because he took his victim’s clothing for the purpose of burningit later to prevent identification, when another defendant who committed an identical first degree murder could not be subjected to the death penalty if for the same purpose he buried the victim fully clothed-- or even ifhe doused the clothed body with gasoline and burnedit at the scene instead. To permit a jury to choose whowill live and who will die on the basis of whether in the course of committing a first degree murder the defendant happens to engage in ancillary conduct that technically constitutes robbery or one ofthe otherlisted felonies would be to revive “the risk ofwholly arbitrary and capricious action” condemnedbythe high court plurality in Gregg. (428 USS. at p. 189, [49 L.ED. 2d at p. 883].) We conclude that regardless of chronology such a crime is not a murder committed “during the commission” of a robbery within the meaning ofthe statute. (People v. Green, supra, 27 Cal.3d at pp. 61-62.) Green thus found the evidence insufficient as a matter of law to prove the special circumstances. (d., at p. 62.) 224 People v. Green remains controlling authority, and has been consistently applied by this Court and the Legislature. (See e.g., People v. Valdez (2004) 32 Cal.4th 73, 113-114; People v. Michaels (2002) 28 Cal.4th 486, 519; People v. Reyes (2004) 32 Cal.4th 73, 113-114; People v. Raley (1992) 2 Cal.4th 870, 902-903; People v. Kimble (1988) 44 Cal.3d 480, 501- 503; People v. Weidert (1985) 39 Cal.3d 836, 842; People v. Thompson (1980) 27 Cal.3d 303, 322-323.) The holding of People v. Green was implicitly adopted and approvedofby the Legislature when it amended section 190.2 in 1998 to create an exception to the Green rule for only kidnapping and arson by the enactmentofsubdivision (a)(17)(m). (Stats. 1998, ch. 629, §1; cf., Red Lion Broadcasting Co. v. FCC (1969) 395 U.S. 367, 381-382 [89 S.Ct. 1794; 23 L.Ed.2d 371] [applying the legislative- reenactment doctrine].) The holding of People v. Green has also been incorporated in the second paragraph of CALJIC No. 8.81.7. (People v. Horning (2004) 34 Cal.4th 871, 907.) The instruction explains the requirementthejury find: “the murder was committed in order to carry out or advance” the special circumstance felony. The instruction explains the special circumstance felony “is not established if the [felony] was merely incidental to the commission of the murder.” (CALJIC No.8.81. 17.) This instruction, however, was not used by the trial court. Instead, the trial court instructed only that: 225 To find that the [sic] any ofthe special circumstances, referred to in theseinstructions as murderin the commission ofrobbery, kidnap kidnapping for rape, rape, or rape by a foreign object-a woodenstake,is true, it must be proved: 1. The murder was committed while [the] defendant was [engagedin] [or] [was a accomplice]in the [commission] ofone or more of the following crimes: robbery, kidnap, kidnapping for rape, rape, or rape by a foreign object [a woodenstake]. (2CT 555.) This was similarto the truncated version of CALJIC No.8.81.17 at issue in People v. Valdez. (People v. Valdez, supra, 32 Cal.4th at pp. 113- 114 [holding challenge to instruction was forfeited by defendant’s failure to object or request the omitted language].) In People v. Thompson, supra, 27 Cal.3d 303, the defendantentered the victim’s residence. He shot and killed one victim, and injured a secondvictim, took car keys from one ofthe victims and drovethe victim’s car away from the scene. The jury found true the special circumstances of robbery andfirst degree burglary, and sentenced the defendant to death. Accordingto this Court, “[t]he question presented under People v. Green is whether the shootings were done to advance an independentfelonious purpose ofstealing the car and keys or whether instead such thefts were ‘merely incidental to the 995 murder.’” (People v. Thompson, supra, 27 Cal.3d at p. 324.) After reviewing the evidence, the Court concludedthat “[w]hen the whole record is viewed in a light most favorable to the verdict, it establishes at most a suspicion that 226 appellant had an intent to steal independent ofhis intent to kill.” (Jbid.) Hence, the evidence was insufficient as a matter of law to prove the true findings to the special circumstances. In People v. Ainsworth (1988) 45 Cal.3d 984,the defendant kidnaped the victim, put her in his car, and let her bleed to death over several hours. This Court stated that “Green and Thompson stand for the proposition that when the underlying felony is merely incidental to the murder, the murder cannotbe said to constitute a ‘murder in the commission of? the felony and will not support a finding of felony-murderspecial circumstance.” (Peoplev. Ainsworth, supra, 45 Cal.3d at p. 1026.) More recently in People v. Michaels, supra, 28 Cal.4th 486, the defendant murderedhis girlfriend’s mother. He presented evidence that he did so to protect his girlfriend from abuse by the mother. The murder scene showedsigns of robbery. Before the robbery, the defendant claimed he was going to get jewelry from an old lady. Later, the defendant claimed he had furs and jewelry. (Id. at pp. 517-518.) The prosecution’s theory was “that he defendant entered the apartmentandkilled [the mother] with the intention of stealing her property, but was interrupted whenthe police arrived and escaped without taking anything.” (/d. at p. 518.) The concurrent intent of robbery, burglary and murder supported the felony special circumstances. Further, 227 unlike in Hardy’s trial, “[t]he question whether the burglary and robbery in this case were ‘merely incidental’ to the murder was submitted to the jury under proper instructions, so the issue is simply whether substantial evidence supports the jury’s verdict.” (/d. at pp: 518-519.) C. Application of Authorities to the Instant Case. Underthe rule in People v. Green, the true findings to the robbery, kidnapping, kidnapping for rape, rape, or rape by a foreign object can be upheld only if Hardy had an independent felonious purpose for each, respective felony during the commission of the murder. If the robbery, kidnapping, kidnapping for rape, rape, or rape by a foreign object was incidental to the principal’s purposein killing Sigler, the true findings cannot be upheld. One of the prosecution’s theories was that the defendants’ original, criminal intent was to commit a robbery. The prosecutor argued to the jury that Hardy and his companions weregoing to rob the victim, then discovered she had nothing except $6 worth offood stamps. (11RT 2356.) Later, outside the presence ofthe jury, the prosecutor stated she did not want to commit to any single target crime. (See 12RT 2453 [parties discussion following jury question on whethertorture was a natural and probable consequence].) The evidence was that Hardy engaged with Sigler after she yelled a racial slur at 228 Hardy and his companions. Thealtercation escalated from shoutingto battery, and ultimately to murder. The prosecution was unable to present evidence of the order of events, except that the kidnapping followed the initial engagement, andthe torture and murderlikely werelast in the time line. The robbery special circumstanceillustrates the absence ofany chronology. There is no evidence whetherthe food stamps were taken from Sigler while she was still on the street, during the commission of other felonies, or as an afterthought following some/allofthe other felonies. The fact the food stamp cover was foundcloser to the body than where Sigler first had contact with Hardy supports the reasonable inferencethatthe theft may have occurredlater. That is because three young males easily could have taken the food stamps from Sigler while she was still on Wardlow. (See also Arguments VII [insufficient evidence ofrobbery during murder], XIII [failure to instructjury on thelesser included offense oftheft], post..) Thus, the logical conclusionis the robbery wasincidental to the murder. Similarly, the prosecution argued Sigler was kidnappedto a secluded spot, behind the closed businesses, where she wasout of view from the street, and no passerby could hear her scream. (11RT 2349-2350, 2415.) It cannot be known whether jurors believed Sigler was movedto the embankment to be murdered, or whether Sigler was moved to the embankment for some other purpose, to be robbed or raped, and then 229 killed. Under the evidence, it was equally likely that each one ofthe special circumstance felonies (robbery, kidnapping, kidnappingfor rape, rape, or rape by a foreign object) had no independent felonious purpose that was wholly independent from the murder. Each wasrelated to the murderin that it was merely incidental to the murder, and committed to facilitate or conceal the murderitself. People v. Green concluded the robbery of the murder victim wasincidental to her murder. Therefore, the murder was not committed during the commission of the robbery because the defendant’s only objective was to murderthe victim. Similar reasoning appliesto the instant case. There was no independent purpose for the special circumstance felonies that was unrelated to the principal’s purpose of killing Sigler. Accordingly, the true findings to the felony special circumstances must be reversed. D. The Federal and State Due Process Clause Required the Prosecution to Prove Beyond a Reasonable Doubt That Hardy Had an Independent Felonious Purpose When He Committed Each of the Special Circumstance Felonies Alleged underSection 190.2, Subdivision (A)(17) and (18). UnderApprendi v. New Jersey, Ring v. Arizona, Blakely v. Washington, each supra, and United States v. Booker (2005) 543 U.S.220 [125 S.Ct. 738, 160 L.Ed.2d 621] the requirement of an independent felonious purpose constituted an element of an offense which the prosecution had to prove 230 beyond a reasonable doubt. (Contra, People v. Kimble, supra, 44 Cal.3d at p. S01.) In People v. Kimble, supra, 44 Cal.3d 480, the jury found true special circumstanceallegations of robbery, burglary, and rape. On appeal, Kimble arguedthe special circumstances hadto be reversedfor instructional error and insufficiency of the evidence. Kimble argued the instructions should have been tailored to incorporate the holding of People v. Green. This Court rejected the defendant’s argument, that the Greenrule had become an element of special circumstance findings requiring instructions in all cases regardless ofthe evidence. (People v. Kimble, supra, 44 Cal.3d at p. 501; see also People v. Monterroso (2004) 34 Cal.4th 743, 767 [citing People v. Kimble for the proposition People v. Green did not add an element to felony-murder or special circumstance allegations, but clarified the scope of those doctrines]; People v. Cavitt (2004) 33 Cal.4th 187, 203-204.) The Ninth Circuit has not agreed with this Court’s characterization of the “independent felonious purpose” requirement, and suggested that an “independent felonious purpose” is an element of a special circumstances finding. (Williams v. Calderon, supra, 52 F.3d at p. 1476 [stating that the requirement of an independent felonious purpose for a special circumstance finding provides the narrowing function required to make California’s death 231 penalty statute constitutional].) The United Supreme Court decisions affirm the characterization in Williams v. Calderon of “independent felonious purpose”as an element of a crime which must be proved beyond a reasonable doubt was correct. UnderApprendi v. New Jersey and Blakely v. Washington, thetrier offact had to find beyond a reasonable doubt the facts which makethe defendant eligible for the maximum sentence that may be imposed for the crime ofwhich he was convicted. (Apprendi v. New Jersey, supra, 530 U.S. at p. 490; Blakely v. Washington, supra, 124 S.Ct.at p. 2537.) Ring v. Arizona demonstrates the “independent felonious purpose” requirement constitutes an element of an offense with regard to the special circumstanceallegation. Ringheld special circumstanceallegations that make a defendant eligible for the death penalty must be found by the jury, not a judge, beyond a reasonable doubtrather thanthe trial judge. (Ring v. Arizona, supra, 536 U.S. at p. 609.) “Because Arizona’s enumerated aggravating factors operate as ‘the functional equivalent of an element of a greater offense,’ Apprendi, 530 U.S., at 494, n. 19, 120 S.Ct. 2348, the Sixth Amendment requires that they be found by a jury.” (Jbid.) The special circumstance felony operated as the functional equivalent ofa greater offense. The Ring Court concludedthat an “independent felonious purpose” must be found in order for the aggravating circumstances to be found true. Ring v. 232 Arizona thusrequired the jury find beyond a reasonable doubt that Hardy had an “independent felonious purpose” for the special circumstance felonies in orderto find true them true. E. The Judgment of Death must Be Reversed. Brown v. Sanders (2006) 546 U.S. 212 [126 S.Ct. 884, 163 L.Ed.2d 723], eliminated the Court’s earlier distinction between weighing and non- weighing states, and addressed appellate review of death sentences when an invalid sentencing factor was considered. WhileBrown simplified the analysis in onerespect- - by eliminating the need for different analysis in weighing and non-weighing jurisdictions - - “Brown failed to clarify the role of appellate review under the new system.” (Lamprey, Comment: Brown v. Sanders: Invalid Factors and Appellate Review in Capital Sentencing (2006) 84 Denv.U.L.Rev. 743.) Brown v. Sanders underscored the importance of harmlesserror review in weighingjurisdictions (Brown v. Sanders, supra, 546 U.S. at pp. 218-219), concluded California was a non-weighing state under the formerclassification (id. at p. 231), and also concludedthat all jurisdictions require a weighing of aggravating and mitigating factors (id. at p. 216 [“in all capital cases the sentencer must be allowed to weigh the facts and circumstances that arguably justify a death sentence”]). This was Justice Breyer’s pointin his dissent: that the distinction between weighing and non- 233 weighing states did not determine the nature of appellate review. Rather, in each type ofjurisdiction, the analysis was determined by whetherthe error was harmless. (/d. at p. 231(dis. op. of Breyer, J.).) Under Brown v. Sanders, the reversal ofany ofthe aggravating circumstances foundtrueby the jury should result in reversal of the judgment of death because the invalidated circumstance was weighed by jurors as an aggravating circumstances. Harmlesserror analysis is a component of appellate review in capital cases, andthejurors’ consideration ofthis factor as an aggravating circumstance was not harmless. (Zant v. Stephens (1983) 462 U.S. 862, 890 [103 S.CT. 2733; 77 L.ED. 2d 235].) InBrown v. Sanders, the defendant was convicted ofattempted robbery, robbery, burglary, attempted murder and murder. Sanders and his companion invaded a home wherethey bound and blindfolded the male occupantandhis girlfriend. Both individuals were struck in the head with a blunt object. The girlfriend died from the blow. The jury found four section 190.2 special circumstancestrue; robbery, burglary, the killing of a witness to a crime, and the commission of a murderin a heinous, atrocious, and cruel manner. This Court set aside two ofthe special circumstances: burglary and that the murder was especially heinous, atrocious, and cruel. Because the jury properly 234 considered the two remaining special circumstances, this Court affirmed the judgmentof death. The defendantarguedin the United States Supreme Court that reversal ofthe twospecial circumstance findings also required reversal ofthejudgment of death. When deciding what sentence to impose, the jury wasinstructed to consider the existence of any special circumstances found to be true. The defendant arguedthat the jury’s sentencing decision was erroneously skewed by the consideration oftwo aggravating factors that this Court later reversed. The United States Supreme Court considered whether “the circumstancesin which an invalidated sentencing factor will render a death sentence unconstitutional by reason of its adding an improper element to the aggravation scale in the jury’s weighing process.” (Brown v. Sanders, supra, 546 U.S.at p. 214.) Brown v. Sanders explained the “weighing/non-weighing scheme” “now seemsto us needlessly complex and incapable ofproviding for the full range of possible variations.” (Id., at p. 219.) Brown v. Sanders explained when ajudgmentofdeath thatrests, in part, on invalidatedfactors, must be reversed: An invalidated sentencing factor (whether aneligibility factor or not) will render the sentence unconstitutional by reason ofits adding an improper element to the aggravation scale in the weighing process unless one of the other sentencing factors enables the sentencer to give aggravating weight to the same facts and circumstances. 235 (Ud. at p. 220.) Justice Breyer dissented, stating the sentencer’s consideration of an invalid aggravator mustbe found by the reviewingcourt to be harmless beyond a reasonable doubt regardless of the form of the State’s death penalty law. (Brownv. Sanders, supra, 546 U.S. at p. 228 [dis. opn. of Breyer, J.].) The majority opinion in Brown v. Sanders addressed Justice Breyer’s arguments. The Court first noted, “[I]f the presence of the invalid sentencing factor allowed the sentencer to consider evidence that would not otherwise have been before it, due process would mandate reversal without regard to the rule we apply here.” (Brown v. Sanders, supra, 546 U.S. at pp. 220-221.) The Court distinguished the situation in the case beforeit. “The issue we confrontis the skewingthat could result from the jury’s considering as aggravation properly admitted evidencethat should not have weighedin favorofthe death penalty.” (id. at p. 221) Thetest for prejudice underthat situation was as follows: [S]Juch skewing will occur, and give rise to constitutional error, only where the jury could not have given aggravating weightto the same facts and circumstances underthe rubric ofsomeother, valid sentencing factor. (Brown v. Sanders, supra, 546 U.S.at p. 221.) The Supreme Court applied the test, noting the special circumstances listed in section 190.2 are eligibility factors that satisfy Furman v. Georgia (1972) 408 U.S. 238 [192 S.Ct. 2736, 33 L.Ed.2d 346]. (Brownv. Sanders, 236 supra, 546 U.S.at pp. 221-222.) Reversal ofthe judgment of death wasnot required for the following reason: [T]he jury’s considerationofthe invalid eligibility factors in the weighing process did not produce constitutional error because all of the facts and circumstances admissible to establish the “heinous, atrocious, or cruel” and burglary-murdereligibility factors were also properly adduced as aggravating facts bearing upon the “circumstancesofthe crime” sentencing factor. They were properly considered whether or not they bore upon the invalidated eligibility factors. (Brownv. Sanders, supra, 546 U.S.at p. 224.) In responseto the defendant’s argumentthat the instruction to the jury to consider the special circumstances found true in determining the penalty placed prejudicial emphasis on the invalid eligibility factors, the Court concluded any such impact was inconsequential. (/d., at pp. 224-225) The jury in this case found true the special circumstances that the murder was committed during the commission of robbery, kidnapping, kidnapping for rape, rape, and rape by a foreign object. (12RT 2528-2529.) In determining the penalty, the jury was instructed to consider “[t]he circumstances of the crime of which the defendant was convicted in the 4 The Court concludedthe instruction to the jury to consider the circumstancesofthe crime had,“the effect of renderingall the specified factors nonexclusive, thus causing California to be (in ourprior terminology a non-weighing State.” (Brown v. Sanders, supra, 546 U.S.at p. 222.) The Court analyzed prejudice, however, under the new standards it adopted in Brownv. Sanders. 237 present proceeding and the existence of any special circumstance[s] found to be true.” (3CT 623.) Assuming this Court agrees the felony special circumstances must be reversed, the holding of Brown v. Sanders compels reversal of the judgmentof death. Brown v. Sanders concluded“[i]fthe presenceofthe invalid sentencing factor allowed the sentencer to consider evidence that would not otherwise have been beforeit, due process would mandate reversal without regard to the rule we apply here.” (Brown v. Sanders, supra, 546 U.S. at pp. 220-221.) That is the situation in the instant case. The jury considered, in determining whether to impose the death penalty, the facts of the felony special circumstances. Thejury’s consideration ofthose felony special circumstances wasespecially prejudicial. Dueprocess requires reversal of a judgment of death whenan invalid sentencing factor allowed the sentencer to consider evidence that would otherwise not have been considered. (Brown v. Sanders, supra, 546 U.S.at p. 218.) The Court discussed the situations when an invalid aggravating factor requires reversal of a judgment of death in a non-weighing state. Those situations are when the jury is allowed to draw adverse inferences from constitutionally protected conduct, and attached the label “aggravating” to 238 constitutionally impermissible or irrelevant factors or factors which should militate in favor of a lesser penalty. (/bid.) In the instant case, the label “aggravating” was attached to the constitutionally irrelevant factor of the special circumstance felonies. Those factors should not have been considered if the findings on the special circumstancefelonies are reversed by this Court. Brown v. Sanders concluded it was inconsequential that the jury had considered as aggravating the special circumstances which were found to be invalid. The key difference between Brown v. Sanders, and the instant case, is the basis of the reversal of the special circumstances. In Brown v. Sanders, the first special circumstance reversed on appeal was burglary. It was reversed because of the merger doctrine and not because of an improper legal theory (failure to require a finding of an independent felonious purpose). The second special circumstancereversed on appeal was the commission ofa murder in a heinous, atrocious, or cruel manner. It was reversed because of vagueness. Here, the special circumstance felonies represented an improper theory and should not have impacted whetherthe jury chose to sentence Hardy to death. In Brown v. Sanders, “all of the facts and circumstances admissible to establish the ‘heinous, atrocious,or cruel’ and burglary-murdereligibility factors were also properly adduced as aggravating facts bearing upon the “circumstancesofthe 239 crime’ sentencing factor. They were properly considered whetherornot they bore upon the invalidatedeligibility factors.” (Brown v. Sanders, supra, 546 USS. at p. 224.) In contrast to Brown v. Sanders, the reversal of special circumstances meansthe facts and circumstances incident to the allegation should not have been considered as a “circumstance of the crime,” because it had not been properly found by the jury. The jury’s findings of the felony special circumstances cannot be characterized as “inconsequential,” (Brown v. Sanders, supra, 546 U.S.at pp. 224-225), when the jury wasspecifically told to considerthose factual findings in determining the appropriate penalty. The decisions in Apprendi v. New Jersey (2000) 530 U.S. 466 [120 S.Ct. 2348, 147 L.Ed.2d 435]; Ring v. Arizona (2002) 536 U.S. 584 [122 S.Ct. 2428, 153 L-Ed.2d 556]; and Blakely v. Washington (2004) 542 U.S. 296 [124 S.Ct. 2531, 159 L.Ed.2d 403] also compel reversal of the judgment of death becauseofthereversal ofthe true findingsto the special circumstances. This Court has consistently rejected the argument that California’s capital sentencing scheme violates the holding of these cases. (See e.g., People v. Ward(2005) 36 Cal..4th 186, 219-220; People v. Prieto (2003) 30 Cal.4th 226, 263; People v. Snow (2003) 30 Cal.4th 43, 126-127; People v. Anderson (2001) 25 Cal.4th 543, 589.) 240 Apprendiheld,“thejudge’srole in sentencingis constrainedatits outer limits by the facts alleged in the indictment and found bythejury. Put simply, facts that expose a defendant to a punishment greater than that otherwise prescribed were by definition elements of a separate offense.” (Apprendi, supra, 530 U.S.at p. 483, fn. 10.) In Ring, the jury found the defendantguilty of first-degree murder. Thetrial court, sitting without a jury, determined the presence or absence of aggravating factors and imposed the death penalty. Walton v. Arizona (1990) 497 U.S. 639, 649 [110 S.Ct. 3047, 111 L.Ed.2d 511], upheld the constitutionality of the Arizona sentencing scheme on the basis that the aggravating factors found by the trial court were sentencing factors and not elements of the crime. Ring overruled Walton v. Arizona and concluded “[bJecause Arizona’s enumerated aggravating factors operate as ‘the functional equivalent ofan element ofa greater offense,’ (Apprendi, 530 USS. , at 494, n. 19, [120 S.Ct. 2348]), the Sixth Amendmentrequiresthat they be found by a jury.” (Ring supra, 536 U.S.at p. 609; see also Sattazahnv. Pennsylvania (2003) 537 U.S. 101, 111 [122 S.Ct. 2428, 154 L.Ed.2d 588].) In Blakely, the defendant pled guilty to kidnapping. The maximum sentence was 53 monthsin state prison. Thetrial court, after an evidentiary hearing, imposed a sentence of 90 months because the crimewas committed with deliberate cruelty. Blakely concluded the Washington State enhancement 241 statute was unconstitutional because “the relevant ‘statutory maximum’is not the maximum sentence ajudge may imposeafter finding additionalfacts, but the maximum he may impose without any additional findings. When ajudge inflicts punishment that thejury’s verdict alone doesnot allow,thejury has not found all the facts ‘which the law makesessentialto the punishment,’ Bishop, supra, §§ 87, at 55, and the judge exceedshis proper authority.” (Blakely, supra, 452 U.S. at pp. 303-304.) Under Washington law,the facts justifying an exceptional sentence mustbe facts other than those used in computing the standard range for the sentence. Because “[t]he judge in this case could not have imposed the exceptional 90-month sentence solely on the basis of the facts admitted in the guilty plea,” (Blakely, supra, 124 S.Ct. at p. 2537), the sentence enhancementfor commissionofthe crime with deliberate cruelty was unconstitutional. Under Apprendi, Blakely, and Ring, the aggravating factors found true by the jury in this case were elements of capital murder. Those cases hold there is no distinction between sentencing factors and elements of a crime when fact finding is necessary to trigger the defendant’s eligibility for increased punishment. Here, the special circumstances found true by the jury were elements of the crime of capital murder because those findings made Hardyeligible for the death penalty. Thejury, when it decided which sentence 242 to impose, considered those special circumstances. Because the aggravating factors constituted elements ofthe crime ofcapital murder,reversal ofany one of the two special circumstances mustresult in reversal of the judgment of death. “[A] jury mustfind, not only the facts that make up the crime ofwhich the offender is charged, but also all (punishment increasing) facts about the way in whichthe offender carried out that crime.” (Blakely, supra, 542 U.S. at p. 328 [dis. opn. of Breyer,J.].) Reversal ofany one ofthe special circumstances meansthejury did not reach unanimous agreement, within the meaning of the Sixth and Fourteenth Amendments, about how the principal, or Hardy as an aider and abetter, committed the crime, or how he should be punished. The jury elected to imposethe death penalty based onthe false belief that Hardy had committed all of the special circumstances foundtrue. The jury’s erroneousbelief about how the murderwas committed wasnot simply a matter ofthejury erroneously considering sentencing factors. Rather, it was a constitutional defect in proof of the crime of capital murder. Whatdistinguishes this case from Brownv. Sandersis the reversaloffindings of fact concerning the special circumstance allegations. In Brown v. Sanders, the special circumstance allegations that were reversed were notfindings offact. 243 Reversal ofthe judgmentofdeath is required, furthermore, evenifthe harmless beyond a reasonable doubt test ofChapmanv.California, supra, 386 U.S. at page 24, is appliedto the reversal ofthe special circumstance findings. Thejury’s beliefthat Hardy committedall ofthe special circumstancefelonies wasespecially prejudicial. The offenses clearly were so closely interconnected to these special circumstances that the jury’s consideration of an appropriate sentence necessarily would have includedthe special circumstances. For the reasons above, the true findings on the special circumstances, and the judgment of death must be reversed. 244 vil THE JUDGMENTOF GUILT TO COUNT2, ROBBERY, SHOULD BE REVERSED, AND THE SPECIAL CIRCUMSTANCEFINDING OF A ROBBERY DURING THE COMMISSION OF A MURDER AND THE JUDGMENT OF DEATH SHOULD BE VACATED, BECAUSE THE EVIDENCE WASINSUFFICIENT AS A MATTER OF LAW TO PROVE THAT HARDY TOOK THE VICTIM’S PROPERTYINAROBBERY, ORTOOK THE PROPERTY WHILE THE VICTIM WASALIVE. A. Summary of Argument. The jury found Hardy guilty in count 2 of robbery based on evidence that Sigler’s food stamps were used at a market frequented by Hardy, Armstrong, andpossibly Pearson. (1ORT 2045-2049.) A food stamp booklet cover wasnextto the rear the building behind which Sigler’s body was found. (10RT 2054.) The prosecution theory was Sigler was robbed of food stamps or clothing. (See e.g., 11RT 2353 [prosecutor’s closing argument].) Sigler’s clothes were taken at the end of the incident when Pearson told Hardy to collect the clothes. (10RT 2105.) There was no evidence when the food stamps were taken; only that they were used at a market sometimeat the end of December 1998. (1ORT 2038.) There was: (1) no substantial evidence Hardy, or anyone else, formed an intent to take Sigler’s food stamps or clothing before the use of force or fear; (2) no substantial evidence the amount of force or fear used to take 245 property wasgreater than that required merely to take the property; and (3) no substantial evidence the taking ofthe food stamps or clothing occurred while Sigler wasstill conscious or alive. Accordingly, the conviction on count 2, and the true finding of the robbery special circumstance violate due process and must be reversed. (Jackson v. Virginia (1979) 443 U.S. 307, 313-314 [99 S.Ct. 2781, 61 L.Ed.2d 560].) B. Standard of Review. The due process clauses of the Fifth and Fourteenth Amendments safeguard Hardy from criminal liability “except upon evidence that is sufficient fairly to support a conclusion that every element .. . has been established beyond a reasonable doubt.” (Jackson v.Virginia, supra, 443 U.S. at pp. 313-314; see also In re Winship (1970) 397 U.S. 358, 364 [90 S.CT. 1068, 25 L.ED. 2d 368].) This Court explained the inquiry is twofold: (1) resolve the issue in the light ofthe whole record, not merely “isolated bits of evidence selected by the respondent;” and (2) judge whether the evidence of each ofthe essential elements is substantial. (People v. Johnson (1980) 26 Cal.3d 557, 576; in accord People v. Green (1980) 27 Cal.3d 1, 55.) “[I]t is not enough for the respondent simply to point to ‘some’ evidence supporting the finding ... .” (People v. Johnson, supra, 26 Cal.3d at p. 576.) The question is whether the whole record, viewedin the light most favorableto the 246 judgment below, discloses substantial evidence that is reasonable, credible, and of solid value. (Ud. at p. 578.) “Substantial evidence”to affirm a conviction is evidence which, when viewedin light of the entire record, is of solid probative value, maintainsits credibility, and inspires confidence that the ultimate fact it addresses has been justly determined. (People v. Lucero (1988) 44 Cal.3d 1006, 1020; in accord People v. Conner (1983) 34 Cal.3d 141, 149.) Reasonablenessis ultimately the standard underlyingthe substantial evidence rule. (People v. Reilly (1970) 3 Cal.3d 421,425.) An appellate court must determine whether any reasonable trier of fact could have found, upon the evidence presented, each essential element of the crime “beyond a reasonable doubt.” The substantial evidence rule necessarily mandates consideration of the weight of the evidence consideredbythetrier of fact in determining whetherit is sufficient. (People vy. Bassett (1968) 69 Cal.2d 122, 139.) As the United States Supreme Court explained, “the application of the beyond-a-reasonable-doubt standardto the evidence is not irretrievably committed to jury discretion.” (Jackson v. Virginia, supra, 443 US.at p. 318.) 247 C. There Was No Substantial Evidence of Robbery. 1. Robbery, Generally. Section 211 defines robbery as “the felonious taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by meansofforce or fear.” A defendant must form the intent to take the victim’s property prior to killing the victim in order for the crime of robbery to have occurred. (People v. Frye (1998) 18 Cal.4th 894, 956; People v. Kelly (1992) 1 Cal.4th 495, 528.) If the defendant’s intent to steal property arose only after force wasused, the offense wastheft and not robbery. (People v. Kelly, supra, 1 Cal.4th at p. 529.) As applied to the instant facts, three principal aspects of robbery are key. First, the defendant’s use of force or fear must actually cause the victim to be afraid, and the victim’s fear must be objectively reasonable. (People v. Wright (1996) 52 Cal.App.4th 203; People v. Mungia (1991) 234 Cal.App.3d 1703, 1704; see also People v. Cash (2002) 28 Cal.4th 703.) Second, a defendant must form theintent to take the victim’s property prior to the use of force or fear. (People v. Frye (1998) 18 Cal.4th 894, 956; People v. Kelly (1992) 1 Cal.4th 495, 528.) Ifthe defendant’s intent to steal property arose only after force or fear was used, the offense was theft and not robbery. (People v. Kelly, supra, | Cal.4th at p. 529.) That is because the gravamen of 248 robbery is the use of force or fear to effect the taking. (See e.g., Wilkoff v. Superior Court (1985) 38 Cal.3d 345, 351; People v. Ramos (1982) 30 Cal.3d 553, 589.) And there must be a concurrence of the acts, that is, the use of force or fear, and the intent to take. (People v. Green (1980) 27 Cal.3d 1, 53; People vy. Marshall (1997) 15 Cal.4th 1, 34.) Third, to constitute robbery, the amountofforce or fear must exceed whatis required only to take the property. (People v. Wright, supra, 52 Cal.App.4th at p. 210.) 2. There Was No Substantial Evidence ofAny Intent to Take Property Before the Use of Force or Fear. The property taken was clothing Sigler wore and food stamps she possessed. The clothing wastaken at the end of the incident. There was no evidence when the food stamps were taken. Asto the clothing, there was no evidencethe original intent wasto take Sigler’s clothing. That would make no sense. Three young men would not have wanted to take a middle aged woman’s clothing. Rather, the clothing was removedfrom Sigler’s person, not to take it from her, but to take it off her, to accomplish the other charged offenses, e.g., rape. The taking of the clothing occurred at the end of the incident, more as an afterthought. The prosecutor argued Hardy took the clothes to destroy evidence becausethe clothes contained blood andpossibly semen. (11RT 2352.) While the prosecutor speculated the intent when approaching Sigler was robbery, there was no evidence ofthis at all. Indeed, 249 the only evidence concerningthe initial confrontation with Sigler wasthatit had nothing to do at all with robbery. Hardy, Pearson and Armstrong were walking on thestreet, and Sigler was acrossthe street. She yelled a racial slur at them. (LORT 2101-2102, 2137.) The three crossedthestreet to argue with Sigler over the racial slur, and the situation escalated. (ORT 2103-2104.) There was no evidence of any demandfor Sigler’s personal property. Other evidence also wasinconsistent with any intent to rob before the use of force or fear. Had there been an intent to take the clothes or food stamps, that would have been accomplished easily enoughatthe time of the initial confrontation, not later behindthe building. Hardy and his companions outnumbered Sigler three to one. They were ona deserted, poorlylit street late at night. The three maleseasily could have robbed Sigler ofwhateverproperty they wished while on Wardlow Road. There apparently were no witnesses in the area, and a robbery could have been accomplishedefficiently ifthat had been the intent. Instead, no property wastaken until the end ofthe encounter, and only during,or after, the other offenses had been committed. The location of the food stamp booklet cover is consistent with this: it was not found on Wardlow Road. 250 3. There Was No Substantial Evidence That the Amount of Force or Fear Exceeded What Was Necessary to Take the Food Stamps and Clothes. The evidence demonstrates Sigler was beaten severely, and near death or dead, by the time any property was taken. Even assuming arguendo Sigler was alive, she was clearly near death and likely unconscious based on the severity of her injuries. (See e.g. 1ORT 1974 [neck and head injuries from woodenstick, Exhibit 3, could have rendered her unconscious ].) At this point, Pearson told Hardy to gather the clothes, and Hardy complied. (ORT 2105.) While there was no evidence when, or how, the food stamps were taken, it is reasonable to infer they were taken from the clothing, or picked up off the ground where they had fallen during the offenses. No piece of evidence makes any other scenario more. More importantly, there is no substantial evidence the property was taken earlier. The reasonable inference from the evidence supports the scenario that property was taken only after the other offenses, and independent ofthem, because of the complete absence of any evidence of pre-force intent to take. This type of taking is not robbery because no more force wasused greater than that needed to effectthe taking itself. (People v. Turner (1990) 50 Cal.3d 668, 725; People v. Morales (1975) 49 Cal.App.3d 139, 139.) This taking would be akinto a purse-snatching. 251 Courts have long held the act of snatching an item from a person does not establish the force necessary to constitute a robbery. In an attempt to define force, appellate courts have found that “‘force’ is a relative concept” which “is not synonymous with a physical corporeal assault.” (People v. Mungia, supra, 234 Cal.App.3dat pp. 1708-1709; People v. Wright, supra, 52 Cal.App.4th at p. 209.) Force requires something morethanjust “the quantum of force which is necessary to accomplish the mereseizing of the property.” (People v. Morales, supra, 49 Cal.App.3dat p. 139 [purse snatch defendant entitled to a lesser instruction on larceny from the person].) Several appellate decisions have defined the force required for robbery. People v. Dreas, supra, 153 Cal.App.3d 623, defined force as “the power or energy by which resistance is overcome.” (/bid., quoting State v. Snyder (1918) 41 Nev. 453.) People v. Lescallet (1981) 123 Cal.App.3d 487, 491, held the force necessary for robbery was “such forceasis actually sufficient to overcome the victim’s resistance.” (Jbid., quoting People v. Clayton (1928) 89 Cal.App. 405, 411.) Several cases draw distinction between the force necessary merely to take, say, a victim’s purse — whichis insufficient for robbery — and a separate act or greater degree of force, whichis sufficient. The separate act could be, for example, a shove, (People v. Mungia, supra, 234 Cal.App.3d 1703), which may cause the victim to fall. Or the greater degree of force may break the 252 strap of the purse (People v. Roberts (1976) 57 Cal.App.3d 782, 787), or bloody and injure the victim (People v. Jones (1992) 2 Cal.App.4th 867). Here, however, there was no evidence Sigler was shoved, injured in any way so that her clothes or food stamps could betaken. 4. There Was No Substantial Evidence That the Property Was Taken While Sigler Was Still Consciousor Alive. The prosecution had the burden ofproving beyond a reasonable doubt that the intent to take Sigler’s property occurred before Sigler lost awareness or had died. A defendant must have formedthe intent to take the victim’s property prior to the victim’s death to be guilty of robbery. (People v. Frye, supra, 18 Cal.4th at p. 956.) It follows this same rule should also apply to the situation where the victim is unconscious. That is because the essence of robbery is the taking ofproperty from the victim by force or fear. (§ 211.) If a person is unconscious, that person experiences neither force nor fear. Here, there is no substantial evidence Sigler experienced force or fear related to the taking of her clothes or food stamps. This case differs from cases where the defendant either killed, or rendered the victim unconscious, for the purpose of robbery. (Compare, (People v. Kelley (1990) 220 Cal.App.3d 1358, 1367-1368; People v. Dreas (1984) 153 Cal.App.3d 623, 628-629.) The defendants in Kelley and Dreas 253 formed the intent to commit a robbery prior to the victim becoming unconscious. In contrast, a defendant has not committed robbery when the defendant finds a victim unconscious and takes property. (People v. Russell (1953) 118 Cal.App.2d 136, 138-139.) The deputy medical examiner testified microscopic examination “suggested” many of Sigler’s injuries occurred around the time of death, or just before death. (JORT 1932.) The cause of death was multiple injuries to the head and neck. (1ORT 1963.) The doctortestified it was difficult to say how long Sigler lived after the injuries, but death was “rapid.” Sigler died within minutes of sustaining the injuries. (IORT 1964.) The doctor “expect[ed]” the genital injuries occurred first (1ORT 1976, 1977), andall injuries occurred within a very narrow time frame. (10RT 1976.) Further, the medical examiner could determineif injuries were pre-death, but not whether Sigler lost consciousness. (LORT 1973.) Sigler’s neck and headinjuries could have rendered her unconscious. (1ORT 1974.) Sigler’s clothing was taken as Hardy, Pearson, and Armstrong were leaving the scene, and after Pearson instructed Hardy to gather her clothes. (1ORT 2105.) There was no evidence when the food stamps were taken relative to other events. Hardy did not mention the food stamps during his statements, which supports the inference the taking ofthe food stamps wasnot 254 a planned, intended event. The food stamp booklet cover was found nextto the rear ofthe building a week later. (LORT 20151, 2053-2054.) This was far from theplaceofthe first encounter with Sigler, which was back on Wardlow Road. If the taking of the food stamps had occurred on Wardlow Road,it is likely the booklet cover would have been found on the street. Instead, its location behind the building demonstrates the taking of the food stamps, like the taking ofthe clothing, occurredat the end ofthe incident when Sigler was either unconscious or dead. Based on the foregoing, the evidence wasinsufficient to prove Hardy guilty of count 2, and insufficient to prove the robbery special circumstance. Accordingly, the conviction on count 2 and the special circumstance true finding should be reversed. Additionally, the judgment of death should be reversed due to the reversal of the special circumstance, as explained in Argument VI, ante, and incorporated by this reference. 255 GUILT PHASE INSTRUCTION ISSUES Vill THE JUDGMENT OF DEATH, AND THE JUDGMENT OF GUILT ON COUNT 1 SHOULD BE REVERSED BECAUSE THE TRIAL COURT INSTRUCTED THE JURY WITH AN ERRONEOUS DEFINITION OF FELONY MURDER, WHICH IMPERMISSIBLY PERMITTED A GUILTY VERDICT BASED ON IMPROPER LEGAL THEORIES, IN VIOLATION OF HARDY’S RIGHT TO DUE PROCESS OF LAW UNDER THE FIFTH AND FOURTEENTH AMENDMENTS, RIGHT TO A JURY TRIAL UNDER THE SIXTH AND FOURTEENTH AMENDMENTS AND THE STATE CONSTITUTION, AND THE PROHIBITION AGAINST IMPOSITION OF CRUEL AND UNUSUAL PUNISHMENT IN THE EIGHTH AND FOURTEENTH AMENDMENTS,ANDARTICLEI, SECTION17, OFTHE CALIFORNIA CONSTITUTION. A. Summary of Argument. The prosecution proceeded on four different possible theories of murder: deliberate and premeditated, felony murder, torture murder, or aiding and abetting. (See e.g., LIRT 2355-2358, 2365 [prosecutor’s closing argument].) The court instructed onall four theories. (2CT 543-544 [CALJIC No. 3.02 (aiding/abetting)], 548-549 [CALJIC No. 8.20 (deliberate /premeditated)], 550 [CALJIC No. 821 (felony murder)]; 551 [CALJIC No. 8.24 (torture murder)].) At the prosecutor’s request, jurors also were instructed they need not agree on a theory of guilt. (2CT 547.) The verdicts do not reflect what theory, or theories, the jurors found true beyond a 256 reasonable doubt. Thus,any instructionalerror that involved an improperlegal theory for guilt on murder requires reversal. (People v. Guiton (1993) 4 Cal.4th 1116, 1128 [holding rule in People v. Green (1980) 27 Cal.3d 1, 69- 71, continues to apply in cases in which the verdict could have been based on a legally inadequate theory]; in accord (Mills v. Maryland (1988) 486 U.S. 367, 376 [108 S.Ct. 1860, 100 L.Ed.2d 384]; accord, Zant v. Stephens (1983) 462 U.S. 862, 881 [103 S.Ct. 2733, 77 L.Ed.2d 235]; Yates v. United States (1957) 354 U.S. 298, 312 [77 S.Ct. 1064, 1 L.Ed.2d 1356]; Stromberg v. California (1931) 283 U.S. 359, 369-370 [51 S.Ct. 532, 75 L.Ed. 1117]; Keating v. Hood (9th Cir. 1999) 191 F.3d 1053, 1062 [The fundamentalrule that applies when a jury delivers a general verdict that may rest either on a legally valid or legally invalid groundis clear: the verdict may not stand when there is no way to determineits basis.”].) The error is particularly damaging where, as in Hardy’s case, the jurors were not required to agree on the theory of conviction because “the possibility that even one juror might have relied upon the legally erroneous theory requires invalidation of the conviction.” (Keating v. Hood, supra, 191 F.3d at p. 1063.) Here, the instructional error occurred based on modifications to pattern instruction CALJIC No. 8.21, which explained felony murder. The modifications involved the seven felonies, charged in Counts 2 through 8, 257 which werelisted felonies in section 189. (2CT 550.) The pattern instruction appears to have contemplated use in the situation of a single section 189 felony. Its use was error when multiple section 189 felonies were alleged because it permitted jurors to find Hardy guilty of murder,ifjurors found the killing occurred during one listed felony, and Hardy hadthe specific intent to commit another, unrelated listed felony. For example, underthe instruction, jurors could have found Hardy guilty offelony murderifthey found the victim died during the commission ofrape, and Hardy hadthespecific intent only to commit robbery. Accordingly, the verdict ofguilt on count 1 and thejudgment of death mustbe reversed. B. Standard of Review. Errors in jury instructions are questions of law which are reviewed de novo. (People v. Cole (2004) 33 Cal.4th 1158, 1206; People v. Guiuan (1998) 18 Cal.4th 588, 569.) Appellate review ofan instructionalissue doesnotentail any deference tothetrial court. (People v. Manriquez (2005) 37 Cal.4th 547, 581, 584.) “The independent or de novo standard of review is applicable in assessing whether[jury] instructions correctly state the law, and also whether instructions effectively direct a finding adverse to a defendant by removing an issue from the jury’s consideration.” (People v. Posey (2004) 32 Cal.4th 193, 218 [citations omitted].) 258 The Modified Version of Caljic No. 8.21 Impermissibly Permitted Jurors to Find Hardy Guilty ofMurder Based on Several Improper Legal Theories. Thetrial court instructed jurors on felony murderas follows: The unlawful killing of a human being, whether intentional, unintentional or accidental, which occurs [during the commission ofany ofthe following crimes: robbery, kidnap for rape, rape in concert, rape, sexual penetration by a foreign object (a woodenstake) in concert, sexual penetration by a foreign object (a woodenstake), or torture, is murderofthe first degree whenthe perpetrator had the specific intent to commit that crime. The specific intent to commit any of the following crimes: robbery, kidnap for rape, rape in concert, rape, sexual penetration by a foreign object (a wooden stake) in concert, sexual penetration by a foreign object (a wooden stake), or torture and the commission of any such crime must be proved beyonda reasonable doubt. (2CT 550.) Nowheredid theinstructiontelljurors that in orderto find Hardy guilty under a theory of felony murderthe jury had to find: (1) the killing occurred during the commission ofoneofthe specified felonies; (2) and Hardy had the specific intent to commit that specified felony which resulted in the victim’s death. The special instruction requested by the prosecutor, telling jurors they “need not unanimously agree onthe theory of first degree murder” (2CT 547), combined with the prosecutor’s argument only exacerbated the error. The prosecutorstressed in her argumentthatjurors did not have to agree, and how 259 they arrived at their verdict was not important. She argued any felony from the list sufficed. (1IRT 2359.) The instruction, and the prosecutor’s argument, improperly conflated all section 189 felonies, and permitted jurors to mix and match indiscriminately amongall seven felonies. Moreover, becauseofthe nature of the evidence, which showedthatall charged offenses occurred during a single incident, and overa relatively short period of time, the instruction was even more confusing. This was not a situation where the charged felonies each occurred at a distinctly different time, and the evidence pointed definitively to death occurring at a certain time. The jurors were told to consider seven felonies for the felony murder, and to consider twoaspects ofevery felony: whether death occurred during the commission of one ofthe seven felonies, and whether Hardy hadthespecific intent to commit any one of the seven felonies. That left the jurors with 49 possibilities. In the following chart, the x-axis (vertical) represents a felony, during whichajuror found death occurred. The y-axis (horizontal) represents a felony for which a juror found Hardy hadspecific intent. Then the chart on the following page reveals the various combinations of those two findings. However, becausejurors were neverinstructed that to find felony murder, they hadto find that death occurred during the felony Hardy specifically intended 260 to commit, the instruction permitted a guilty verdict for murder under 42 improperlegal theories, and only seven legally proper theories. Specific Robbery Kidnap Rape in Rape Penetrate Penetrate Torture intent> Count2 forrape concert Count 5 w/object w/object Count 8 Count 3 Count 4 in Count 7 Death concert occurred Count6 during | Robbery Proper Improper Improper Improper Improper Improper Improper Count 2 Kidnap forrape Improper Proper Improper Improper Improper Improper Improper Count 3 Rape in concert Improper Improper Proper Improper Improper Improper Improper Count 4 Rape Improper Improper Improper| Proper Improper Improper Improper Count 5 Penetrate w/object Improper Improper Improper Improper Proper Improper Improper in concert Count 6 Penetrate w/object Improper Improper Improper Improper Improper Proper Improper Count 7 Torture Improper Improper Improper Improper Improper Improper| Proper Count8 A conviction under the theory of felony murder requires proof the defendant acted with the specific intent to commit the underlying felony, 261 during which the death occurred. (People v. Hart (1999) 20 Cal.4th 546, 608.) The felony murder theory does not apply unless the intended felony and death are part of “a continuoustransaction.” (People v. Cavitt (2004) 33 Cal.4th 187, 193 [requiring causal connection between killing and felony, and proof that felony andkilling were one continuoustransaction]; People v. Thompson (1990) 50 Cal.3d 134, 171.) That is why there is a specific intent requirement for felony murder even when the underlying section 189 felony is a general intent crime. “[T]he intent required for the conviction of murderis imported from the specific intent to commit the concomitant felony.” (People v. Sears (1965) 62 Cal.2d 737, 745. In felony murder, the law imputes malice to the defendant when death occurs during the perpetration or attempt to commit the target felony. (Cf., People v. Friend (2009) 47 Cal.4th 1, 75.) It is the connection between the intent to commit the target felony, and the target felony’s nexus to the homicide, that is the rationale for the felony murder doctrine. “[T]he intent required for a conviction ofmurderis imported from the specific intent to commit the concomitant felony.” (People v. Sears, supra, 62 Cal.2d at p. 745.) The verdicts show the jury was convinced Hardyspecifically intended to rob Sigler and to kidnap herfor the purposeofrape, as charged in counts 2 and 3. The verdicts also show the jury did not find Hardy wasthekiller. 262 Jurors selected choice “B”on the verdict form, and did not find Hardy wasthe actual killer, which was choice “A”on the form. (3CT 597.) Jurors found not true all allegations ofpersonal arming or personal use of a weaponrelating to counts 2 through 5, andfailed to reach findings on weaponallegationsrelating to counts 1, and 6 through 8. Thus, the jury could have been convincedSigler died during the penetration with a foreign object. The chart, ante, demonstrates this would be an impropertheory for felony murder as to Hardy, however, because the jury did not find the death occurred during, or was the result of, the felony Hardy specifically intended to commit, i.e., robbery in this example. People v. Cavitt (2004) 33 Cal.4th 187, explained that a non-killer’s liability for murder dependsontherelationship betweenthe target felony and the act resulting in death. For felony murderliability to attach to the non-killer “there must be a logical nexus, beyond mere coincidence of time andplace, between the felony the parties were committing or attempting to commit and the act resulting in death.” (/d. at p. 201.) D. The Trial Court’s Deficient Instructions Violated Hardy’s Federal and State Constitutional Rights. The federal due process clause requires the prosecution to prove each elementofa criminal offense beyond a reasonable doubt. (Jackson v. Virginia (1979) 443 U.S. 307, 315 [99 S.Ct. 2781, 2787, 61 L.Ed.2d 560, 571].) The trial court’s failure to instruct on all elements of an offense under the theories 263 of criminalliability prosecuted violates a defendant’s right to due process of law under the Fourteenth Amendment and Article I, section 15, of the California Constitution. (People v. Cummings (1993) 4 Cal.4th 1233, 1313.) Hence,the trial court’s failure to instruct that felony murder requires specific intent for the section 189 felony, during which death occurred, violated Hardy’s right to due process of law. Thetrial court’s failure to instruct properly on the elements required for felony murder prevented the jury from determining whetherall the elements had been proved beyond a reasonable doubt in violation ofthe defendant’s right to a jury determinationofthe facts under the Sixth Amendment and Article J, section 16 of the California Constitution. (Sullivan v. Louisiana (1993) 508 U.S. 275, 278 [113 S.Ct. 2078, 124 L.Ed.2d 182]; People v. Breverman (1998) 19 Cal.4th 142, 155.) Without properinstruction onthe prerequisites for felony murder,thejury had no way properly to make the factual determinations that were elements of felony murder. The Eighth Amendment, and Article I, section 17, of the California Constitution require heightenedreliability during the guilt and penalty phase of a capital prosecution. (Beck v. Alabama (1980) 447 U.S. 625, 637 [100 S.Ct. 2382, 65 L.Ed.2d 392]; People v. Ayala (2000) 23 Cal.4th 225, 263.) Hardy waseligible for the death penalty only if he was guilty offirst degree 264 murder. Thefirst degree murderconvictionrested in part on the felony murder theory. The jury was unable to makethe factual determinations necessary to determine if Hardy committed felony murder because of the instructional deficiencies identified above. This failure underminedthereliability of the jury’s determination that he waseligible for the death penalty and therefore violated Hardy’s right to not be subject to cruel and unusual within the meaning ofthe Eighth AmendmentandArticle I, section 17 ofthe California Constitution. E. The Erroneous Instruction Was Prejudicial and Requires Reversal of Count 1 and the Judgment of Death. The erroneous instruction for felony murder, which omitted the requirementfor specific intent for the felony during which death occurred, violated Hardy’s federal constitutional rights. Accordingly, the judgmentof guilt on count | must be reversed unless the error was harmless beyond a reasonable doubt. (Chapmanv. California (1967) 386 U.S.18, 24 [87 S.Ct. 824, 17 L.Ed.2d 705].) Theerror wasnotharmless beyond a reasonable doubt because: (1) the evidence that Hardy harbored specific intent to commit any crime at all was weak circumstantial evidence; (2) there was nothing in the evidence making it more likely that Hardy had specific intent for the felony during which death occurred; and (3) evidence tended to show death likely occurred as a result of counts 6, 7, or 8 (penetration with a foreign object, 265 penetration with a foreign object in concert, or torture), which werethe last offenses to be committed. Thus, the instruction impermissibly permitted conviction on murder without either the requisite causal or temporal connection. The prosecution case regarding the details of the assault consisted primarily ofHardy’s own statements during interrogation. Except for Hardy’s statements, no other evidence showedthe order in which the offenses were committed with the exception that the cause of death was the result of head injuries. (LORT 1976.) Thus, for example jurors could have convicted under a felony murdertheory by concluding that, after Sigler suffered head injuries, Hardy formedthe specific intent to rob her. Or jurors could have concluded that, after hearing the racial slur, Hardy intendedto rob andbatterSigler. Thereafter, Pearson orchestrated the other offenses, including the specific intent crimes, in which Hardy had no or minimalparticipation, after which Sigler died. Under these scenarios, all equally supported by the evidence, jurors could have convicted on count 1 without the requisite causal connection between the death and the section 189 felony, and withoutfinding the felony and killing were a continuoustransaction as required by this Court. (People v. Cavitt, supra, 33 Cal.4th at p. 193.) 266 Whenthe prosecution presents its case to the jury on alternate legal theories, some of whichare legally correct and other legally incorrect, and a reviewing court cannot determine from the record which theory the jury adopted,then the conviction cannot stand. (People v. Green (1980) 27 Cal.3d 1, 69.) This jury returned a verdict of guilty to first degree murder without specifically identifying what theory the verdict rested. (3CT 597-598.) The jury found Hardy wasnotthe actualkiller, but rather was an aider and abetter whoeither intended to kill or was a majorparticipant whoacted with reckless indifference to human life. (3CT 597.) Thus, the jury was not convinced Hardy wasthekiller, but instead foundhim guilty as a participant. (3CT 597.) The verdict does not reveal whether jurors relied on felony murder. Even assuming there wassufficient evidence to find Hardy guilty of premeditated first degree murder, it is not possible to conclude the jury found him guilty based on that theory. People v. Guiton (1993) 4 Cal.4th 1116, explained the distinction between a theory of conviction that is legally inadequate and one that is factually inadequate(i.e., one that involves insufficiency of proof). (Ud.at p. 1128.) This Court held reversalis not requiredin casesoffactual inadequacy so long as one theory ofguilt is factually supported. (/bid.) However, the rule in Green continuesto apply in cases wherethe verdict could have been based 267 ona legally inadequate theory. (Jbid.) Accordingly,in cases where theverdict mayhavebeen based on legally impropertheory, reversal is required unless there is “a basis in the record to find that the verdict was actually based on a valid theory.” (/d. at p. 1129 [fn. omitted].) As discussed ante, the record showsthe instructions allowed the jury to convict Hardy ofmurderbased on 49 theories offelony murder, 42 ofwhich were legally incorrect. Because the error in Hardy’s case involves the possible, or even likely, application of a legally erroneous theory, the issue revolves around “instructionalerror on a ‘legally incorrect’ theory ofthe case which,ifrelied upon by the jury, could not as a matter oflaw validly support a conviction ofthe charged offense.” (People v. Harris (1994) 9 Cal.4th 407, 419 [italics in original, fn. omitted].) The error requires reversal because there is no basis in the record for concludingthat the verdict finding Hardy guilty of first degree murder wasactually based on anyofthe sevenlegally valid legal theories. Under California case law, when it cannot be determined from the record whether the jury based its murder verdict on a legally correct theory or a legally flawed theory, the appellate court cannotsay theerror is harmless and the error must be deemedprejudicial. Reversal is avoided only if the People affirmatively show that nojuror relied on the erroneousinstruction asthe sole 268 basis for finding the defendantguilty. (People v. Smith (1984) 35 Cal.3d 798, 808; People v. Sanchez (2001) 86 Cal.App.4th 970, 980-982; People v. Jones (2000) 82 Cal.App.4th 663, 671; People v. Smith (1998) 62 Cal.App.4th 1233, 1239.) Respondent cannot make such a showingon this record. As this Court explained: “An instructional error presenting the jury with a legally invalid theory of guilt does not require reversal, however,if other parts ofthe verdict demonstrate that the jury necessarily found the defendant guilty on a proper theory.” (People v. Pulido (1997) 15 Cal.4th 713, 727.) The United States Supreme Court and the Ninth Circuit apply the same rule when determining whether an instructional error allowing the jury to convict on an unlawful theory of guilt requires reversal. The rule, as stated by the Supreme Court,is: “With respect to findings of guilt on criminal charges, the Court consistently has followed therule that the jury’s verdict mustbe set asideifit could be supported on one groundbutnot another, and the reviewing court was uncertain which of the two grounds wasrelied upon by the jury when reaching the verdict. [Citations omitted.]” (Mills v. Maryland (1988) 486 U.S. 367, 376 [108 S.Ct. 1860, 100 L.Ed.2d 384]; accord, Zant v. Stephens (1983) 462 U.S.862, 881 [103 S.Ct. 2733, 77 L.Ed.2d 235]; Yates v. United States (1957) 354 U.S. 298, 312 [77 S.Ct. 1064, 1 L.Ed.2d 1356]; Stromberg v. California (1931) 283 U.S. 359, 369-370 [51 S.Ct. 532, 75 L.Ed. 1117]; 269 Keating v. Hood (9th Cir. 1999) 191 F.3d 1053, 1062 [“The fundamentalrule that applies when a jury delivers a general verdict that may rest either on a legally valid or legally invalid groundis clear: the verdict may not stand when there is no way to determineits basis.”].) Theerroris particularly damaging where, as in Hardy’scase, the jurors were not required to agree on the theory of conviction because “the possibility that even one juror might have relied upon the legally erroneous theory requires invalidation of the conviction.” (Keating v. Hood, supra, 191 F.3d at p. 1063.) In Hardy’scase the record doesnot revealthe theory on whichthejury found Hardy guilty ofmurder, and the instruction madeit highlylikely that the guilty verdict was based on an improper theory. Accordingly, Hardy’s conviction for murder and the judgment of death must be reversed. 270 IX THE JUDGMENTOF DEATH, AND THE JUDGMENTS OF GUILT ON COUNTS 1 THROUGH 7, SHOULD BE REVERSED BECAUSE THE TRIAL COURT INSTRUCTED THE JURY WITH AN ERRONEOUS DEFINITION OF AIDING AND ABETTINGLIABILITY, WHICH IMPERMISSIBLY PERMITTED GUILTY VERDICTSBASED ONIMPROPERLEGALTHEORIES, IN VIOLATION OF HARDY’S RIGHT TO DUE PROCESS OF LAW UNDER THE FIFTH AND FOURTEENTH AMENDMENTS, RIGHT TO A JURY TRIAL UNDER THE SIXTH AND FOURTEENTH AMENDMENTS AND THE STATE CONSTITUTION, AND THE PROHIBITION AGAINST IMPOSITION OF CRUEL AND UNUSUAL PUNISHMENT IN THE EIGHTH AND FOURTEENTH AMENDMENTS, AND ARTICLE I, SECTION 17, OF THE CALIFORNIA CONSTITUTION. Summary of Argument. The aiding and abetting instruction impermissibly mixed and matched amongthe seven offenses in counts 1 through 7, and permitted the jury to find Hardy guilty of each of the seven counts without requiring any natural and probable consequence connection between his target offense and the non- target offense that actually caused the offenses of conviction. The instruction permitted jurors to convict on any one of seven offenses by making findings under these four steps: (1) the offense, or any one of the other six offenses, was committed; (2) Hardy aided and abetted in any one ofthe seven offenses; (3) a co-principal to Hardy’s target offense committed any one of seven 271 offenses; and (4) any one of the seven offenses was a natural and probable consequence of any of the other seven offenses. (2CT 543-544.) The instruction permitted conviction without requiring the two offenses to be linked by a natural and probable consequence(at step four). There was no requirementin the instruction that the offense ofconviction, the offense Hardy aided and abetted, or the non-target offense committed by a co-participant be linked together by natural and probable consequences. So for example, jurors could have convicted Hardy of murder, if they found (1) murder was committed; (2) Hardy aided and abetted robbery; (3) Pearson was a co- participant in the robbery who also committed rape; and (4) rape in concert wasa natural and probable consequenceofrape. As in Argument VIII, ante, the problems arose because the pattern instruction appears to contemplate only a single target, and single non-target offense. Hardy incorporatesbythis referencethe authorities cited in Argument VIII, ante, that require reversal when conviction was based on an improper legal theory. Hardy also incorporates from Argument VIII the standard of review for instructionalerror. B. The Instruction on Aiding and Abetting. The trial court gave the following modified version of CALJIC No. 3.02: 272 One whoaids and abets another in the commission of a crime [or crimes] is not only guilty of that crime or those crimes, but is also guilty ofany other crime committed by a principal which is a natural and probable consequenceofthe crime[s] originally aided and abetted. In order to find the defendant guilty ofthe crimes[s] ofmurder, or robbery, or kidnap for rape, or rape in concert, or rape, or sexual penetration/rape by a foreign object - a woodedstake in concert, or sexual penetration/rape by a foreign object - a woodenstake, as charged in Count{[s] 1-8, you must besatisfied beyond a reasonable doubtthat: 1 The crime or any one of the following crimes of murder, or robbery, or kidnap for rape, or rape in concert, or rape, or sexual penetration/rape by a foreign object - a woodedstake in concert, or sexual penetration/rape by a foreign object - a wooden stake were committed; 2 That the defendant aided and abetted any one of those crime[s]; 3 That a co-principal in that crime committed the [sic] any one of the following crimes of: crime[s] of murder, or robbery, or kidnap for rape, or rape in concert, or rape, or sexual penetration/rape by a foreign object - a woodedstakein concert, or sexual penetration/rape by a foreign object - a woodenstake; and 4 That any one ofthefollowing crime[s] of: murder, or robbery, or kidnap for rape, or rape in concert, or rape, or sexual penetration/rape by a foreign object - a woodedstakein concert, or sexual penetration/rape by a foreign object - a wooden stake were a natural andprobable consequence ofthe commission of any one ofthe crime[s| of: murder, or robbery, or kidnap for rape, or rape in concert, or rape, or sexual penetration/rape by a foreign object - a wooded stake in concert, or sexual penetration/rape by a foreign object - a woodenstake. (2CT 543-544[italics added].) 273 The jury devoted attention to trying to parse through this modified instruction, and in doing so discovered the only error obvious to a layperson. The second paragraphidentified all eight counts, and the remainder of the instruction discussed only seven. (3CT 590.) Jurors asked about the discrepancy, and whethertorture should be includedas part ofthe instruction. (3CT 590.) The parties and the court discussed the jury’s question (12RT 2447-2475), and the court answered, “no, the instruction should have stated ‘Counts 1-7.’” (3CT 590.) C. The Law Governing the Natural and Probable Consequences Theory of Aider and Abettor Liability Requires a Nexus Between the Offense of Conviction, the Target and Non-target Offenses, and the Offenses Linked by a Natural and Probable Consequence. The doctrine of natural and probable consequences in the context of vicariousorderivativeliability has been recognized in California law for more than a century.”> This Court noted in People v. Prettyman (1996) 14 Cal.4th 248, 260, “The first California decision to embrace this doctrine was People v. Kauffman (1907) 152 Cal. 331 [parallel citation].” In Kauffman, six men in °° The doctrine has beencriticized by legal scholars. “Most commentators strongly opposethis doctrine as both ‘incongruous and unjust’ because it imposes accompliceliability solely upon proof of foreseeability or negligence when typically a higher degree ofmensrea is required of the principal.” (Rogers, Accomplice Liabilityfor Unintentional Crimes: Remaining within the Constraints ofIntent, (1998) 31 Loy. L.A. L. Rev. 1351, 1361, and fn. 33.) 274 San Francisco conspired to commit a burglary involving the taking of money from a safe at a cemetery in San Mateo County. All of the men except Kauffman were armed with revolvers. When the six men arrived at the cemetery, they found an armed manonthe premises and decided to leave. On their way home, an encounter with a police officer led to a gunfight, during which the officer was fatally shot. (/d. at pp. 332-333.) Kauffman was not armedat the time ofthe shooting. Hetestified when the shooting occurred he was standing still and his hands were in the air. (/d. at p. 334.) He was convicted ofsecond degree murder(id. at p. 332), on the theory that the killing ofthe officer was an act committed in furtherance ofthe common design ofthe conspiracy to commit the burglary and, as one of the conspirators, he was responsible for the killing. (Ud. at p. 334.) This Court held the governing rule was that when several people conspire to commit an unlawfulact, each is criminally responsible for the acts of his or her associates committed in furtherance of the common design for which they combine. (People v. Kauffman, supra, 152 Cal. at p. 334.) “Each is responsible for everything done by his confederates which follows incidentally in the execution ofthe commondesign as one ofits probable and natural consequences, even though it was not intended asa part ofthe original design or commonplan.” (Jbid.) Kauffman made clear, however,that the rule 275 applied only to acts which were “an ordinary and probable effect of the wrongful act specifically agreed on” and did not apply to “a fresh and independent product of the mind of one of the confederates outside of, or foreign to, the common design.” (/bid.) Accordingly, “if one memberofthe party departs from the original design as agreed upon byall ofthe members, and does an act which wasnot only not contemplated by those who entered into the common purpose, but was not in furtherance thereof, and not the naturalor legitimate consequence ofanything connected therewith, the person guilty of such act, if it was itself unlawful, would alone be responsible therefor.” (bid.) Although Kauffman was a case involving a conspiracy theory of liability for substantive crimes committed in the course ofthe conspiracy,later decisions applied the natural and probable consequencesdoctrine to aiders and abettors. (People v. Prettyman, supra, 14 Cal.4th at p. 261, andcasescited.) The basis of the doctrine is that aiders and abettors should be responsible for criminalacts they have naturally, foreseeably and probably put in motion. (Jd. at p. 260.) However, as noted in Kauffman and confirmed in Prettyman, the doctrine does not apply to criminal acts which occur when one of the principals departs from the original design and commits an act which wasnot a natural, foreseeable or probable consequence of the design. (People v. 276 Prettyman, supra, 14 Cal.4th at pp. 260-261; People v. Kauffman, supra, 152 Cal. at p. 334.75) Pearson wasthe major participant in all offenses. Underthe evidence, reasonable jurors could have concluded Pearson departed from the original plan, to which Hardy agreed, say, robbing and perhaps battering, or even raping Sigler. But the instructions required no nexus between the target offense and the particular offense committed by the co-participantat step three (Pearson in this example). The instructions simply failed to explain fully the nexus required by Prettyman. California law requiresthetrial court to instruct the jury onthe natural andprobable consequencesdoctrine, and, when doing so, identify and describe the elements ofboth the charged non-target crime, that constitutes the natural 6 Other jurisdictions agree that when a co-participant departs from the target offense, the aider and abettorto the target offense is not liable for the non-target offense. For example, if two people agree to assault a person, and one ofthem unexpectedly robs the victim, the robber aloneis guilty of robbery since robbery wasnotpart of the design they shared. (People v. Foley (1886) 59 Mich. 553 [26 N.W. 699, 700-701]; Rex v. Hawkins (1828) 3 Car. & P. 392, 172 Eng.Rep. 470.) Similarly, if two defendants agree to commit a larceny, and one of them robs a person instead, the robberaloneis guilty of robbery. (State v. Lucas (1880) 55 Iowa 321 [7 N.W.583].) Likewise, if two defendants agree to fight two other people with their fists, and one uses a deadly weapon withoutthe knowledgeofthe other, only the defendant who used the deadly weaponis responsible for the death resulting from use of that weapon. (Reginav. Caton (Eng. 1874) 12 Cox Crim. Cases 624.) 277 and probable consequence,and the target crime the defendant actually aided and abetted. (People v. Prettyman, supra, 14 Cal.4th at pp. 254, 263-270.) The question whether the non-target crime of conviction is a natural and probable consequenceofthe target crime ordinarily is a factual question for the jury to determine. (People v. Prettyman, supra, 14 Cal.4th at pp. 261-262; People v. Kauffman, supra, 152 Cal. at p. 335; People v. Nguyen (1993) 21 Cal.App.4th 518, 531; People v. Rogers (1985) 172 Cal.App.3d 502, 515.) But to makethis determination, the jury must be properly instructed, and here it was not. This was because there were seven offenses for the jury’s consideration at each of the four steps of the aiding and abetting analysis. The seven offensesidentified as ones, to which the natural and probable consequences doctrine of aiding and abetting liability could attach, were murder, robbery, kidnapping for rape, rape in concert, rape, penetration with a foreign object in concert, and penetration with a foreign object. (2CT 543- 544.) To find Hardy guilty of any one of these, however, the instruction did not require a natural and probable consequence connection to the count of conviction. There were only two steps where jurors hadto find a natural and probable consequence connection. Step three required a connection between the target offense Hardy intended, and the non-target offense a co-participant committed. Step four required a connection between any one of the seven 278 offenses and any oneofthe other six. The jurors would have not understood a connection was required between steps one through three, and step four. That is how the example in Section A, ante, could occur. Jurors could have convicted Hardy of murder, if they found: (1) murder was committed; (2) Hardy aided and abetted robbery; (3) Pearson was a co-participant in the robbery who also committed rape; and (4) rape in concert wasa natural and probable consequenceofrape. Similarly, underthis instruction, jurors could have convicted Hardy ofrobbery ifthey found: (1) murder was committed;(2) Hardy aided and abetted a kidnap; (3) Pearson was a co-participant in the kidnap who also committed rape; and (4) rape in concert was a natural and probable consequence of rape. Jurors identified the non-legal error in the instruction, which includedtorture in the second paragraph,but had no way to identify the legal error that remainedin the instruction. The natural and probable consequencetheory ofliability requires the jury to find that the non-target offense of conviction is a natural and probable consequenceofone oftwo crimes:(1) the target crime the jury found Hardy aided and abetted, or (2) the non-target crime committed by a co-participant, which wasitself a natural and probable consequenceofthe target crime. The non-target offense of conviction cannot merely be the natural and probable consequence of some other non-target crime. 279 People v. Prettyman, supra, 14 Cal.4th 248, held the natural and probable consequence doctrine applies when the jury makesfive findings. They are: “that the defendant, acting with (1) knowledge of the unlawful purpose of the perpetrator; and (2) the intent or purpose of committing, encouraging,orfacilitating the commission ofapredicate or target offense; (3) by act or advice aided, promoted, encouragedorinstigated the commission of the target crime; (4) the defendant’s confederate committed an offense other than the target crime; and(5) the offense committed by the confederate was a natural andprobable consequenceofthe target crime that the defendant aided and abetted.” (Id. at p. 262 [footnote omitted, italics and underling added].) This requirement is based on a commonlaw rule that “a person encouraging or facilitating the commission of a crime could be held criminally liable not only for that crime, but for any other offense that wasa ‘natural and probable consequence’ of the crime aided and abetted.” (/d. at p. 260.) Furthermore, as this Court explained aboutthe five-part test: “Instructions describing each step in this process ensure proper application by the jury of the ‘natural and probable consequences’ doctrine.” (/d. at p. 267.) In addition, Prettyman explained that, in order to convict a defendant based on the natural and probable consequence theory, “each juror must be convinced, beyond a reasonable doubt, that the defendant aided and abetted the commission of a 280 criminal act, and that the offense actually committed was a natural and probable consequence of that act.” (Id. at p. 268,italics added, italics in original deleted.) The instruction Hardy’s jury received ran afoul of the holding in Prettyman, quoted above. Specifically, the instruction failed altogether to explain the fourth and fifth requirements set forth in Prettyman. Under the instruction the trial court gave, Hardy has demonstrated the jury could have convicted him of murder under oneofseveral erroneous theories. The same is also true for the other six offenses covered by the aiding and abetting instruction. Prettymanstated: “If, for example, the jury had concludedthat defendant Bray[the aider and abettor] had encouraged codefendant Prettyman [the actual killer] to commit an assault on Van Camp but that Bray had no reason to believe that Prettyman would use a deadly weapon suchas steel pipe to commit the assault, then the jury could not properly find that the murder ofVan Campwasa natural and probable consequenceofthe assault encouraged by Bray.” (People v. Prettyman, supra, 14 Cal.4th at p. 267.) In Hardy’s case, step four in the instruction failed to explain the required natural and probable consequence connection to the offense of conviction. The correct instruction would havetold jurors Hardy wasguilty of a non-target offenseifjurors decided he aided and abetted one ofthe other 281 six crimes and the non-target offense ofconviction was a natural and probable result of the crime he aided and abetted, or of the crime the co-participant committed while committing Hardy’s target crime. Alternatively,jurors could have beeninstructedto find first, which crimes gave rise to which non-target crimes as a natural and probable consequence. Then jurors could have been told to decide whether Hardy either aided and abetted one of thoseas target crimes, or whether the co-participant committed one of those as a non-target crime while committing Hardy’s target crime. Instead, the instruction permitted conviction on non-target crimes based on any one of several erroneoustheories. D. The ErroneousInstruction on Aiding and Abetting Violated Hardy’s Federal and State Constitutional Rights, and Requires Reversal ofCounts 1 Through 7, and the Judgment of Death. ArgumentVIII, ante, set forth the authorities requiring reversalfor this type of instructionalerror, and the arguments and authorities explaining how Hardy wasprejudiced. Those arguments and authorities are incorporated by this reference for the sake of brevity. The jury found Hardy guilty of murderas an aider and abettor, and did not find he was the actual killer. (3CT 597.) The jury found not true the allegation Hardy personally used of a deadly weapon on three counts. (3CT 599 [robbery], 600 [kidnap for rape], 601 [rape in concert].) The jury was 282 deadlocked, and could not reach findings, on personal use on four counts. (3CT 597 [murder], 602 [rape], 603 [penetration by a foreign object in concert], 604 [penetration by a foreign object], 605 [torture].) This verdict and findings reveal the jury understood Hardy’s liability was as an aider and abettor. As to eachofthe eight counts, the jury’s findings show the jury found one ofHardy’s companionswasthe primary actor, not Hardy. Thus, the error in the aiding and abetting instruction permeated infected each of counts | through 7. Based on the foregoing, reversal of counts 1 through 7 and the judgmentof death is required. 283 xX THE JUDGMENT OF DEATH, AND THE JUDGMENT OF GUILT ON COUNT 1 SHOULD BE REVERSED BECAUSE THE VERDICT FORM, COMBINED WITH THE JURY INSTRUCTIONS, INCORRECTLY PERMITTED THE JURYTO FIND HARDY GUILTY OF FIRST DEGREE MURDER BASED ON A LEGAL THEORY THAT SUPPORTS ONLY SECOND DEGREE MURDER, AND RESULTEDIN A WRITTEN VERDICT FORM THATFAILS TO REFLECT THE FINDINGS OF FACT REQUIRED FOR FIRST DEGREE MURDER,IN VIOLATION OF HARDY'S RIGHT TO DUE PROCESS OF LAW UNDER THE FIFTH AND FOURTEENTH AMENDMENTS, RIGHT TO A JURY TRIAL UNDER THE SIXTH AND FOURTEENTH AMENDMENTS AND THE STATE CONSTITUTION,ANDTHE PROHIBITION AGAINST IMPOSITION OF CRUEL AND UNUSUAL PUNISHMENT IN THE EIGHTH AND FOURTEENTH AMENDMENTS,ANDARTICLE I, SECTION 17, OFTHE CALIFORNIA CONSTITUTION. Summary of Argument. The verdict form for count 1, murder, was a hybrid verdict form that combined the verdict for the count with legal theories supporting both: (1) guilt on the count,and (2) true findings on special circumstances. Asa result, the verdict form for count 1 fails to reflect with any certainty that the jury convicted Hardy offirst degree murder on a valid legal theory. The form presented two options for the jurors to select. Jurors were to select whether they found Hardy was: “(A) The Actual Killer; or (B) An Aider and Abettor and hadtheintent to kill; or was a Major Participant and acted with reckless 284 indifference to humanlife.” (3CT 597.) The jury circled option B. (3CT 597.) Option B contained twolegaltheories: (1) aiding and abetting, which could apply as a theory ofliability for guilt, or to the special circumstances; and (2) a majorparticipant acting in reckless disregard for human life, which applied only to the special circumstances. The hybrid form, however, made it appear Hardy could be foundguilty offirst degree murderifjurors found he acted “in reckless disregard for human life,” which is a theory that would support second degree murder, but not first degree murder. The combination of the hybrid verdict form, and the absence of any clarifying instructions, deprived Hardyofhis right to a jury determination of all the facts pertaining to his guilt or innocence as required by the Sixth Amendment, and Article I, section 16 ofthe California Constitution. (Ring v. Arizona (2002) 536 U.S. 584, 536 [122 S.Ct. 2428, 153 L.Ed.2d 556] [the Sixth Amendmentrequired the jury to find the aggravating facts necessary to impose the death penalty]; United States v. Gaudin (1995) 515 U.S. 506, 510 [115 S.Ct. 2310, 132 L.Ed.2d 444][the right to have a jury requiresthetrier of fact to determine the truth of every accusation].) The verdict form madeit probable thejury failed properly to determine the facts necessary to find Hardy guilty of first degree murder. 285 The combination of the hybrid verdict form, and the absence of any clarifying instructions, also violated Hardy’s right to federal due process of law, which required the jury to find each element of first degree murder beyonda reasonable doubt. (Jackson v. Virginia (1979) 443 U.S. 307, 314- 315 [99 S.Ct. 2781, 61 L.Ed.2d 560].) Furthermore, becausethe hybrid verdict form without properinstruction lacked statutory authority, the jury’s verdict on Count 1 violated due process, and should not be treated as a reliable findingsof fact. (Cf. Hicks v. Oklahoma (1980) 447 U.S. 343, 346 [100 S.Ct. 2227, 65 L.Ed.2d 175] [due process right in state following its own procedure].) B. The Hybrid Verdict Form, for Which the Trial Court Gave No Clarifying Jury Instructions, Resulted in a Guilty Verdict on Count 1 That Could Rest on an Impermissible Legal Theory, That Is, That Hardy Was Guilty Based on Acting with Reckless Indifference to HumanLife. The verdict form for count 1 was a hybrid verdict form that combined a general verdict and a special verdict. Sections 1150 through 1155 set forth the requirements for the form of verdicts. Section 1150 provides that, “The jury must render a general verdict, except that in a felony case, when they are in doubtas to the legal effect ofthe facts proved, they may, except upona trial for libel, find a special verdict.” Section 1151 provided in part, “A general verdict upon of plea of not guilty is either “guilty” or “not guilty,” which 286 imports a conviction or acquittal of the offense charged in the accusatory pleading.” Section 1152 provides, “A special verdict is that by which the jury finds the facts only, leaving the judgmentto the court. It must present the conclusions of fact as established by the evidence, and not the evidence to prove them, andthese conclusionsoffact must be so presented as that nothing remains to the court but to draw conclusions oflaw upon them.” Section 1154 provides, “The special verdict need not be in any particular form, butis sufficient if it presents intelligibly the facts found by the jury.” Thus, the verdict form for Count 1 was a hybrid becauseit contained both the verdict of guilt (§ 1151), and findings of fact without a judgmentof guilt (§ 1152). The hybrid verdict form used for count | contained the following language: Wethe jury in the above-entitled action find the defendant WARREN HARDY GUILTYofthe crime of MURDER,in violation ofPenal Code Section 187(a), a felony, as charged in Count 1 of the information. Wefurther find it to be Murder of the Degree. (Insert First or Second) Wefurtherfind the allegation that the defendant Warren Hardy in the commission of the above offense personally used a dangerous and deadly weapon in violation of Penal Code Section 12022(b)(1) to be (Insert True or Not True) Wethe jury in the above-entitled action find the defendant Warren Hardy was: 287 A. The Actual Killer; or B. An Aider and Abettor and hadtheintent to kill; or was a Major Participant and acted with reckless indifference to humanlife (Circle all of either “A”or “B”) Wefurther find the allegation of the special circumstance of robbery pursuant to Penal Code Section 198.12(a)(17)(A) to be (Insert True or Not True) Wefurther find the allegation of the special circumstance of kidnapping for rape pursuant to Penal Code Section 198.12(a)(17)(B) to be (Insert True or Not True) WeFurtherfind the allegation of the special circumstance of rape pursuant to Penal Code Section 198.12(a)(17)(B) to be (Insert True or Not True) Wefurther find the allegation of the special circumstance of rape by a foreign object pursuant to Penal Code Section 198.12(a)(17)(K) to be (Insert True or Not True) Wefurther find the allegation of the special circumstance of torture pursuant to Penal Code Section 198.12(a)(18) to be (Insert True or Not True) (3CT 597-598.) Twoaspects ofthe form are objectively noteworthy. First, the phrase “Wethe jury in the above-entitled action find the defendant Warren Hardy. . . .” appears only twice: (1) for use in determining guilt on the murder count itself, and (2) as a introductory phrase to the A or B options that applied only 288 to the special circumstances. This usage would lead a lay juror to conclude each of the two sentences, starting with those same words, concerned the guilty verdict. Second, the introductory language to each ofthe four findings to the special circumstances began with the same language,“we further find the allegation ....” This, too, would lead a lay juror to conclude: (1) each of the sentences starting with those words concerned special circumstances; and (2) only sentences beginning with those words concerned special circumstances. This would lead to the conclusion that the choice ofA or B concernedtheverdict of guilt, not the special circumstances. Onits face, the verdict form lent itself to the interpretation that guilt for first degree murder could be reached based on a finding of reckless indifference to humanlife. There are three fatal flaws with the verdict form. Hardy will discuss each. 1. The Jury Instructions Failed to Clarify the Concepts of Aiding and Abetting, and Acting in Reckless Disregard for Human Life on the Verdict Form Applied Only to the Special Circumstances, and Not to the Issue of Guilt. Noinstruction, and nothing on the verdict form, madeit clear to jurors that options A and B concernedonly special circumstances,andnotthe verdict of murderitself. The hybrid form confused lay jurors because option A included the term “Aider and Abetter,” which the court had instructed was a 289 theory for finding guilt on count 1 (and other counts). The actual term “aids and abets” appeared only in the instructions on aider and abettorliability. (2CT 542-544; CALJIC Nos. 3.01, 3.02.) The twoinstructions on aider and abettor liability concerned the charged crimes. CALJIC No.3.02 specifically identified Counts 1 through 7 as the offenses, to which aiding and abetting liability could apply. (2CT 543-544.) CALJIC No. 8.80.1 instructed on when and how to determine if the special circumstances weretrue. It contained the words “[aided,] [abetted,]” in a long series of other words describing various formsofvicariousliability that could attach to the special circumstances findings. CALJIC No.8.80.1 told jurors they could notfind the special circumstance true unless convinced beyond a reasonable doubt either: Hardy had the intent to kill, or he was a major participant acting with reckless indifference to humanlife. (2CT 553- 554.) CALJIC No. 8.80.1 readin pertinentpart: Ifyou find that a defendant wasnotthe actual killer of a human being, or ifyou are unable to decide whether the defendant was the actual killer or an aider or abettor or co-conspirator, you cannot find the special circumstance to be true unless you are satisfied beyond a reasonable doubtthat the defendant with the intent to kill [aided,] [abetted,] [counseled,] [commanded,] [induced,] [solicited,] [requested,] [or] [assisted] any actor in the commission of the murder in the first degree], or with reckless indifference to humanlife and as a majorparticipant [aided,] [abetted,] [counseled,] [commanded,] [induced,] [solicited,] [requested,| [or] [assisted] in the commission ofone ofmore of the following crimes: robbery, kidnapping, kidnapping for rape, 290 rape, rape by a foreign object (a wooden stake), or torture pursuant to Penal Code section 190.2 (a)(17) whichresulted in the death of a human being, namely Penny Keptra also known as Penny Sigler. (2CT 553-554.) The words “aided”and “abetted” appeared in the special circumstance instruction (CALJIC No. 8.80.1), but they were not joined together with the word “and,” representing a concept. Instead, the two words were buried in among manyotherwords describing special circumstanceliability. The words did not appear as a phrase “aiding and abetting” in the special circumstance instruction. Rather, the words, and conceptof, “aiding and abetting” was discussed in the instructions only when the court explained aider and abettor liability for guilt in CALJIC Nos. 3.01 and 3.02. The appearanceofthe words together, “Aider and Abettor”in Option B on the verdict form, suggested a concept. That concept was mirrored by the use ofthat same phrase “aiding and abetting”in the instructions on aiding and abetting liability for guilt. (CALJIC Nos. 3.01 and 3.02.) This would have led lay jurors to believethis option addressed guilt of murder, not a true finding on the special circumstance. Then, thinking that Option B applied to the question ofguilt of first degree murder, jurors also would have concluded that the concept of acting “with reckless indifference to humanlife” was a way to find guilt on first degree murder. This misunderstanding would have been 291 reinforced by Option A, that Hardy was “the Actual Killer” since that too would have beena theory of guilt for murder. Jurors, however, circled only B, not A. (3CT 597.) Noinstructionclarified for jurors that the concepts in Option B were relevant only to special circumstances. Option B included the concept of reckless indifference to humanlife, which supports second degree murder, but notfirst degree. Therefore, the guilty verdict could represent thejury’s finding of guilt on the improperlegal theory of reckless indifference to humanlife. There is no way to know thatit does not. 2. The Jury Instructions Failed to Clarify Jurors Hadto First Determine Hardy’s Guilt of First Degree Murder Before Makingthe Selection A or B. Noinstruction, and nothing on the verdict form, madeit clear to jurors they were to decide on the A or B options only after first finding Hardy guilty of first degree murder. CALJIC No.8.80.1 instructedin its preamble,that “If you find [the] defendantin this case guilty of murderofthefirst degree, you must then determine ... The following special circumstance[s] ....” (2CT 553.) Hardy acknowledges that instruction likely would havesufficed ifsome other instruction, or the verdict form itself, made clear that the selection ofA or B related only to special circumstances. As demonstrated, ante, however, there was no suchclarification. 292 Thetrial court did not instruct the jury that it should select Options A or B onlyif, and after, the jury had already independently found that Hardy was guilty of first degree murder. People v. Davis (1995) 10 Cal.4th 463, 511-512, approvedthe use ofhybrid verdict forms even though “not explicitly authorized by statute” when “the court conveyed to the jury with ample clarity that it was required to makethespecial finding only after it had deliberated on the issue ofguilt.” ([bid. citing People v. Farmer (1989) 47 Cal.3d 888, 920 [jury’s finding ofguilt, followed answersto two specific questionsconstituted a general verdict].) Here, there were no instructions that conveyed “with ample clarity” that the jury could makethe selection ofA or B only after first finding Hardy guilty beyond a reasonable doubtof first degree murder. 3. The Hybrid Verdict Form Violated Penal Code Sections 1150 Through 1154, and California Case Authorities, Resulting in a Completed Form That Fails to Reflect the Required Findings of Fact to_ Sustain a Guilty Verdict on First Degree Murder. The verdict form was unauthorized under California law. The language in section 1150 that, “The jury must rendera general verdict . . .” requires the trial court to use a general verdict unlessthejury was “in doubtasto thelegal effect of the facts proved ....” Then a special verdict may be used. Section 1150 does not provide for the use of a general verdict and a special verdict. The statute requires the trial court to use either a general verdict form or a 293 special verdict form. As demonstrated, ante, the trial court’s melding of the twotypes ofverdict forms permitted by statute lacked statutory authority, and created confusion about whatthe jury found. People v. Davis, supra, 10 Cal.4th 463, approved hybrid verdict forms only in limited circumstances where the form and the instructions did not interfere with the deliberative process. (/d. at pp. 511-512.) Davis rejected the challenge to the verdict form because the defendant could not show the form had interfered with the jury’s deliberative process. (/d. at p 511.) Hardy’s case is different because noinstructionsclarified the confusion on the form. After Davis, in People v. Jackson (1996) 13 Cal.4th 1164, the jury was provided verdict forms which required it to find the defendant guilty of premeditated murder, guilty of felony-murder, guilty under both theories, or not guilty. The defendant argued the verdict form was not authorized by statute. This Court rejected the argument, concluding, “The verdict rendered by the jury, however, wasnot a specialverdict; it did not present only findings of fact.” (People v. Jackson, supra, 13 Cal.4th at p. 898; see also People v. Neely (1993) 6 Cal.4th 877, 989 [approving the use of verdict forms which required the jury to find the defendantguilty of either premeditated murder or felony-murder and concluding the verdict was not a special verdict]; People v. Webster (1991) 54 Cal.3d 411, 446-447 [approving verdict forms for 294 different theories ofmurder andstating that special findings may accompany a general verdict as long as they do notinterfere with the jury’s deliberative process]; People v. Farmer, supra, 47 Cal.3d at p. 920.) Hardy’scase is distinguishable from the foregoing cases. The verdict formsin those cases addressed a single count. Thus, there was no possibility of confusion aboutthe jury’s verdict for the specific count for which the jury answered questions. The verdicts were general verdicts, and additionally required answersto questions aboutthe specific theory supporting the general verdict. The additional questions related to the guilty verdict, and amplified it by identifying the legal theory for guilt. In contrast, the grafting of the liability concepts for the special circumstancesontothe verdict form for count 1 required additional findings that did notrelate to the theory of guilt. Unlike Davis and Jackson, ajury couldfind all special circumstances to a murder not true, and the guilty verdict would be unaffected. But ifthe jury in Jackson had foundall the theories for guilty not true, then the verdict could not stand. There also is a fatal problem with the order of findings. People v. Farmer, supra, 47 Cal.3d at page 920, illustrates: A jury in a criminal trial must, except in enumerated circumstances, deliver a general verdict. (Pen. Code, § 1150.) Butin true special verdict the jury finds only the facts, leaving judgment to the court. (/d., § 1152.) Here, the jury returned a — general verdict of guilt and, on the assumption it followed 295 instructions, decided the two specific questions afterwards. The findings were thus not a special verdict. Defendant suggests that although the questions do not violate the requirement of a general verdict, they are impermissible because they are not explicitly authorized by statute. In addition, since special findings are expressly allowedin civil trials (Code Civ. Proc., § 625), the fact that they are not authorized by statute in criminal proceedings further implies they are inappropriate. On these grounds, weheld in People v. Perry (1972) 7 Cal.3d 756, 783, 784 [103 Cal.Rptr. 161, 499 P.2d 129], that the defendant did not have the right to present the jury with special interrogatories. But Perry differs from the case at bar in several respects. There the disapproved question required that the jury make a written finding regarding the sufficiency ofthe evidence before it could considerthe issue of guilt. This demand created a clear dangerof interference with the jury’s deliberative process, the very evil sought to be avoided bythe rule against special criminal verdicts. The safeguards present in Farmer were absent in Hardy’s trial. In Farmer, the jurors were instructed to decide the general question of guilt before addressing the special findings. Hardy’s jury was not so instructed concerning selecting the A or B options. Farmer, and its discussion ofPerry, shows that when the jury is permitted to address special questions before deciding guilt, which Hardy’s jury wasfree to do, the result is interference with the deliberative process. That is what happenedbyusingthe verdict form for count 1 without instructing clearly that the jury had to find guilt offirst degree murder before considering options A or B. It was never madeclear to 296 Hardy’s jury that it could not work backward: deciding options A or B,then determiningguilt. C. Hardy Was Prejudiced by the Flawed Verdict Form, and Lack of Clarifying Instruction, Which Violated Hardy’s Federal Constitutional Rights and Requires Reversal. The verdict form, andlack ofclarifying instruction, deprived Hardy of his constitutional rights to a jury determination of the facts, and to proof beyond a reasonable doubton all elements, (Ring v. Arizona, supra, 536 U.S. at p. 536 ; Jackson v. Virginia, supra, 443 U.S.at pp. 314-315.) The verdict form (and lack of full instruction on how to use) violated Hardy’s Sixth Amendmentright becausethe verdict form makesprobablethejury convicted of first degree murder based on an improperlegal theory. (Mills v. Maryland, supra, 486 U.S.at p. 376; People v. Guiton, supra, 4 Cal.4th at p. 1128.) This Court explained that when a verdict may be based on a legally improper theory, then reversal is required unless there is “a basis in the record to find that the verdict was actually based on a valid theory.” (People v. Guiton, supra, 4 Cal.4th at p. 1129 [fn. omitted].) As demonstrated above, the record cannot, and doesnot, show the guilty verdict on count 1 was based on valid legal theory. This wasstructural error that does not require a showing ofprejudice. The United States Supreme Court has defined the term structural as defects in 297 a trial which “affect[] the framework within whichthe trial proceeds, rather than simply an errorin thetrial processitself.” (Arizona v. Fulminante (1991) 499 U.S. 279, 309-310 [111 S.Ct. 1246; 113 L-Ed.2d 302].) Structural errors include the total deprivation of the right to counselat trial, a biased judge, unlawful exclusion of members of the defendant's race from a grand jury, denial of the right to self-representation at trial, and denial of the right to a public trial. Ud. at pp. 309-310.) Such structural errors cannot be harmless. Without these basic protections, a criminal trial cannot reliably serve its function as a vehicle for determination of guilt or innocence, and no criminal punishment may be regarded as fundamentally fair. (/d. at p. 310, quoting Rose v. Clark (1986) 478 U.S. 570, 577-578 [106 S.Ct. 3101, 92 L-Ed.2d 460].) The flawed verdict form, when used without clarifying instruction, was structural error becauseit is not possible to discern whether the jury made the required findings to support the guilty verdict. The language in option B, discussing a major participant’s acting with “reckless disregard to humanlife” derives from Proposition 115 passed in 1990. This language “expandedthe scope of . . . section 190.2 by adding subdivisions (c) and (d). Accordingly, a person other than the actual killer is now subject to the death penalty orlife imprisonment without the possibility of parole if that person intendedtokill 298 or was a major participant in the underlying felony and acted with reckless indifference to humanlife.” (People v. Mil (2012) 53 Cal.4th 400, 408-409; see also Tison vy. Arizona (1987) 481 U.S. 137, 158 [107 S.Ct. 1676, 95 L.Ed.2d 127] [a non-killer maybeeligible for capital punishmentif either he had specific intent to kill or was a major participant acting with reckless indifference to humanlife].) The language hasnoplace in the determination of guilt for first degree murder. The basic function of the jury is to make findings of fact that are reflected in the verdict. There is no way to measure prejudice when the means by which the jury expressed its factual findings, i.e., the verdict form, is contradictory and susceptible to different interpretations, only one of which represents a valid legal theory for first degree murder. A reasonable juror would have thought that options A and B concerned theories of guilt. The term aiding and abetting was discussedin the instructions only as a theory of guilt. Johnson v. UnitedStates (1997) 520 U.S. 461, 468 [117 S.Ct. 1544, 137 L.Ed.2d 718] described “structuralerror”as “a defect affecting the framework within which thetrial proceeds, rather than simplyanerrorin the trial process itself.” Hardy’s jury suffered from a misunderstanding that permitted a guilty verdict on first degree murder based on reckless indifference to humanlife. 299 Without knowledge of the required elements, the jury was unable to render a complete verdict on every element of first degree murder. That deprived Hardy ofhis right to a jury trial on all the elements offirst degree murder. This failure affected the framework ofthe trial and constituted structuralerror requiring reversal. (Sullivan v. Louisiana, supra, 508 U.S.at p. 280; Arizona v. Fulminante, supra, 499 U.S.at p. 309.) The judgment must therefore be reversed without any demonstration of prejudice. Reversal is required evenifthe error is tested for prejudice. Because the error violated Hardy’s federal constitutionalrights, the judgmentofguilt must be reversed unless the error was harmless beyond a reasonable doubt. (Chapman v. California, supra, 386 U.S. at p. 24.) Technical defects in a verdict may be disregarded only if the jury’s intent to convict of a specified offense within the charges is unmistakably clear, and the defendant’s substantial rights were not prejudiced. (People v. Webster, supra, 54 Cal.3d at p. 447.) Here, the jury’s intent to convict Hardy offirst degree murder based only on properlegal theories cannot be discerned. Based on the form andthe instructions, the guilty verdict could be based on the erroneouslegal theory of reckless indifference to human life. The deficiency in the verdict form wasnotamatter ofa mere technicality, but pertained to thereliability and 300 accuracy of the jury’s verdict on first degree murder. Accordingly, the judgmentof guilt on count 1 and the judgment of death shouldbe reversed. 301 XI THE JUDGMENT OF DEATH, AND THE JUDGMENT OF GUILT TO COUNTS 1 AND 8, AND THE TRUE FINDINGS ON THE TORTURE ALLEGATIONS SHOULD BE REVERSED BECAUSE THE TRIAL COURT FAILED TO INSTRUCT THE JURY THAT AIDING AND ABETTING LIABILITY AND TORTURE REQUIRED SPECIFIC, NOT GENERAL INTENT, AND THEREFORE THE INSTRUCTIONS IMPERMISSIBLY PERMITTED GUILTY VERDICTS WITHOUT A JURY FINDING THAT HARDY HAD THE REQUISITE SPECIFIC INTENT, IN VIOLATION OF HARDY’S RIGHT TO DUE PROCESS OF LAW UNDER THE FIFTHANDFOURTEENTHAMENDMENTS,RIGHTTO A JURY TRIAL UNDER THE SIXTH AND FOURTEENTH AMENDMENTS AND THE STATE CONSTITUTION, AND THE PROHIBITION AGAINST EX POST FACTO AND THE IMPOSITION OF CRUEL AND UNUSUAL PUNISHMENTIN THE EIGHTH AND FOURTEENTH AMENDMENTS, AND ARTICLE I, SECTION 17, OF THE CALIFORNIA CONSTITUTION. A. Summary of Argument. The jury found Hardy guilty of murder as an aider and abettor, found him guilty of torture, and found true the torture allegations.”’ *7 For sake ofbrevity, Hardy refers to the special allegations involving torture by the shorthandreference “torture allegations.” These true findings include: (1) as to count 1, murder, the special circumstanceallegation involving torture (§ 190.12, subd. (a)(18); 3CT 598); (2) as to count 4, forcible rape in concert, the special circumstanceallegation involving torture (§ 667.61, subd. (d)(3); 3CT 601); 302 (3CT 597, 605.) Both guilty verdicts, and the torture allegations, required specific intent, but no instruction made that clear to jurors. The trial court instructed the jury on the definitions ofgeneral andspecific intent. (3CT 538, 539 [CALJIC Nos. 2.02, 3.30, 3.31.) When doing so, the court modified the pattern instructions to specifically identify those “crime[s] [and] [allegation[s]],” and theories requiring either general or specific intent. 3CT 538, 539.) The court erroneously failed to include torture, and aiding and abetting, as requiring specific intent, and also identified torture as a general intent crime. Other instructions failed to clarify for jurors that special intent wasrequiredfor aiding and abetting, and for torture. The instructions relieved the prosecution of proving an element of aiding and abetting liability, an element of count 8, and elementsofthe torture allegations. (3) as to count 5, forcible rape, the special circumstance allegation involving torture (§ 667.61, subd. (d)(3); 3CT 602); (4) as to count 6, penetration by a foreign object in concert, the special circumstanceallegation involving torture (§ 667.61, subd. (d)(3); 3CT 603); and (5) as to count7, penetration by a foreign object, the special circumstanceallegation involving torture (§ 667.61, subd. (d)(3); 3CT 604). 303 The Fifth, Sixth and Fourteenth Amendments to the Federal Constitution together guarantee the right to have ajury find all elements ofthe offense beyond a reasonable doubt. (Apprendi v. New Jersey (2000) 530 U.S. 466, 490 [120 S.Ct. 2348, 147 L.Ed.2d 435] .) “Jury instructionsrelieving states of this burden violate a defendant’s due process rights .. . [by] . . . subvert[ing] the presumption of innocence accorded to accused persons and [by] invad[ing] the truth-finding task assigned solely to juries in criminal cases.” (Carella v. California (1989) 491 U.S. 263, 265 [109 S.Ct. 2419, 105 L.Ed.2d 218]). Failure to properly instruct by omitting or misstating elements is federal and state constitutional error. (Neder v. United States (1999) 527 USS. 1, 18 [119 S.Ct 1827; 144 L.Ed 2d 35]; United States v. Gaudin (1995) 315 U.S. 506 [115 S.Ct. 2310, 132 L.Ed.2d 444]; People v. Cox (2000) 23 Cal.4th 665, 676; People v. Flood (1998) 18 Cal.4th 470, 479-480.) This error requires reversal ofcounts land8,the true findingson the tortureallegations, and the judgment of death. Hardy incorporates by reference the authorities cited in ArgumentVIII, ante, that require reversal when a conviction is based on an improperlegal theory. Hardy also incorporates from ArgumentVIII the standard of review for instructionalerror. 304 B. Aiding and Abetting and Torture Require Specific Intent. An aiderand abettoris a person who“acting with (1) knowledgeofthe unlawful purpose of the perpetrator; and (2) the intent or purpose of committing, encouraging, or facilitating the commission ofthe offense,(3) by act or advice aids, promotes, encourageorinstigates, the commission of the crime.” (People v. Beeman (1984) 35 Cal.3d 547, 561.) People v. Mendoza (1998) 18 Cal.4th 1114, explained the mental state required for aider and abetter liability. The defendant in Mendoza was convicted of second degree murder, five counts of attempted murder, and shooting at an occupied dwelling. The defendant wasprosecuted on aiding and abetting theories. The issue before this Court was whether evidence of voluntary intoxication was relevant to the defendant possessing the requisite mental state necessary for aiding andabetting liability. The issue arose because voluntary intoxication is not a defense to a generalintent crime, but is admissible to show a defendant may not have formedthe requisite specific intent. (§ 22, subds. (a) and(b).) Shooting at an occupied dwelling is a general intent crime. However, Mendoza notedliability as a principal and liability as an aider and abetter requires different mentalstates: The mental state necessary for conviction as an aider and abettor, however,is different from the mental state necessary for conviction as the actual perpetrator. 305 The actual perpetrator must have whatever mental state is required for each crime charged, here shooting at an inhabited building, murder, and attempted murder. An aider and abettor, on the other hand, must "act with knowledge of the criminal purpose ofthe perpetrator and with an intent or purpose either ofcommitting, or of encouragingor facilitating commissionof, the offense." (People v. Beeman (1984) 35 Cal. 3d 547, 560.) (People v. Mendoza, supra, 18 Cal.4th at pp. 1128-1129.) This Court concludedthat aiding and abettingliability requires specific intent: The intent requirement for an aider and abettorfits within the Hooddefinition of specific intent. To be culpable, an aider and abettor must intend not only the act of encouraging and facilitating but also the additional criminal act the perpetrator commits... Aiding and abetting liability attaches only with the intent that the direct perpetrator commit a further, criminal, act in order to achieve the future consequenceofthatact. (People v. Mendoza, supra, 18 Cal.4th at pp. 1128-1129.) Torture also requires specific intent. (See e.g., People v. Massie (2006) 142 Cal.App.4th 365, 372; People v. Pre (2004) 117 Cal.App.4th 413, 420.) Thetrial court had a sua sponte duty to include torture among the charged offenses that required specific intent. (People v. Ford (1960) 60 Cal.2d 772- 792-793.) The Code proscribestorture: the infliction of great bodily injury upon another when done “with the intent to cause cruel or extreme pain and suffering for the purpose ofrevenge, extortion, persuasion, or for any sadistic purpose ....” (§ 206.) People v. Mungia (2008) 44 Cal.4th 1101, 1136, 306 discussing the special circumstance ofmurderwith torture, explained the intent required is to cause cruel and extreme pain and suffering for the purpose of revenge, or for any othersadistic purpose. (/bid.) The intent to torture “is a state ofmind which unless established by the defendant’s own statements (or other witness’s description of a defendant’s behavior in committing the offenses), must be proved by the circumstances surrounding the commission ofthe offense, which include the nature and severity ofthe victim’s wounds.” (Id., at p. 1137, quoting People v. Crittenden (1994) 9 Cal.4th 83, 141.) OF The Jury Instructions Omitted Aiding and Abetting and Torture from the Crimes or Allegations Requiring Specific Intent, and Incorrectly Identified Torture as a Crime Requiring Only General Intent. Thetrial court instructed jurors about specific and general intent with three instructions that discussed specific counts, theories, or allegations. CALJIC No.2.02 discussedthesufficiency ofcircumstantial evidence to prove specific intent (or other mental state). The modified version of CALJIC No. 2.02 stated in relevant part: Thespecific intent or mental state with which an act is done may be shownbythe circumstances surrounding the commission of the act. However, you maynot[find the defendant guilty ofthe crime charged in Counts 1, 2, and 3 or find the allegations pursuant to Penal Code section 667.61 (a), (b), (d), and (e) to be true, unless the proved circumstancesare not only (1) consistent with the theory that the defendant had the required specific intent or mental state but (2) cannot be reconciled with any other rational conclusion. 307 (2CT 520.7%) The circumstantial evidence instruction was critical because the prosecution case rested almost entirely on circumstantial evidence that corroborated Hardy’s statement. The instruction stated that counts 1, 2, and 3 (murder, robbery, and kidnappingfor rape), and certain allegations, required specific intent. Neither torture in count8, nor the special torture allegations, wasincluded. Theinstruction did notidentify any theory that required specific intent. By mentioning “theory” generally, but not specifically, the inference wasthat no theory requiredspecific intent. Ata minimum, whattheory,ifany, required specific intent was not explained anywherein the instructions. Thus, a reasonable lay juror would understand circumstantial evidence could prove the specific intent required for the crimes, allegations, or a “theory that the defendanthad . . . specific intent.” By identifying only counts 1, 2, and 3 as requiring specific intent, and no theory that did, the reasonable inference was that only these enumerated counts required specific intent. The court next instructed on intent with this modified version of CALJIC No. 3.30 discussing generalintent: *8 The second paragraph ofthe instruction addressed circumstantial evidence subject to two reasonable interpretations. The second paragraphis omitted above becauseit is irrelevant to this issue. 308 In the crime[s] [and] unbss otherwise inshucld the [°°] [allegation[s]] charged in Count[s] 4,5,6,7, and 8, namely, rape in concert, rape, sexual penetration by a foreign object (a wooden stake) in concert, sexual penetration by a foreign object - woodenstake, or torture, and the personal use of a deadly weapon - wooden stake, there must exist a union or joint operation of act or conduct and general criminal intent. General criminal intent does not require an intent to violate the law. When a person intentionally doesthat whichthe law declares to be a crime,[he] is acting with general criminal intent, even though [he] may not know that[his] act or conduct is unlawful. (2CT 538.) This instruction incorrectly identified torture as a crime requiring only general intent. Next, the court instructed on specific intent using this modification to CALJIC No. 3.31: In the [crime[s]] [and] [allegation[s]] charged in Count[s] 1, 2, 3, namely murder, robbery, or kidnap for rape, and the special allegations pursuant to Penal Code section 667.61 (a), (b), (d), and (e), there must exist a union or joint operation of act or conduct and a certain specific intent in the mind of the perpetrator. Unless this specific intent exists the [crime[s] [or] [allegation] to which it relates [is not committed] [or] [is not true]. [The specific intent required is included in the definition[s] of the [crime[s]] [or] [allegation[s]] set forth elsewhere in these instructions.| ? Script text was interlineated by handin the instructions used by the court. 309 (2CT 539.) The instruction, like CALJIC No. 2.02 beforeit, identified only counts 1, 2, and 3 as requiring specific intent. Whendefining aiding and abetting, the court used CALJIC No.3.01 stating: A person aids and abets the commission of a crime whenhe, 1. With knowledgeof the unlawful purpose of the perpetrator and 2. With the intent or purpose of committing or encouraging or facilitating the commission of the crime, and 3. By actor advice aids, promotes, encouragesorinstigates the commission of the crime. (2CT 542.) The instruction did not specify that the intent required for aiding and abetting is specific intent. Instead, the instruction equated the required intent with “purpose,” which was not defined elsewhere in the instructions. A reasonable layperson juror would have concludedthatthe “intent or purpose” for aiding and abetting was something different from, and less than, the specific intent defined by the court in CALJIC NO. 3.31, which limitedits application to counts 1, 2, and 3, and certain special allegations, but did not explain it applied also to the aiding and abetting theory. The court instructed for count8 torture using CALJIC No. 9.90, which identified two elements the prosecution had to prove: (1) that “[a] person 310 inflicted great bodily injury upon the person of another;” and (2) “t]he person inflicting the injury did so with the specific intent to cause cruel or extreme pain andsuffering for the purpose ofrevenge, extortion, persuasion, or for any sadistic purpose.” (2CT 568.) Thisinstruction, identifying the specific intent required for torture, was inconsistent with the court’s three previous instructions, one of which told jurors torture was a general intent crime, and two ofwhich omitted torture from thelist of identified specific intent crimes. D. The ErroneousInstructions Prejudiced Hardy by Permitting a Verdict of Guilt on Count 1 Based on Aiding and Abetting, and on Count 8, and the Torture Allegations Without Any Finding of Specific Intent to Support the Verdicts. The verdict form showsthe jury found Hardy guilty of murder as an aider and abettor. (3CT 597.) This required a finding beyond a reasonable doubt that Hardy specifically intended to encourage, or facilitate, the commission ofthe target crime. Thejury also convicted Hardyoftorture, and could not reach a verdict on whetherhe personally used a deadly weapon when doing so. (3CT 605.) A guilty verdict for torture legally required a finding beyond a reasonable doubt that Hardy specifically intended to cause cruel or extremepain and suffering for enumerated purposes. Thejury also found true the torture allegations to counts 1, and 4 through 7. As the foregoing quoted instructions demonstrate, jurors were never instructed properly about the specific intent requirements. By eliminating the offense of torture, and the 311 theory of aiding and abetting from CALJIC Nos. 2.02 and 3.31, the instructions impermissibly suggested that either only general intent was required, or some other type of intent was required, but not specific intent. Further, the instructions erroneously includedtorture as a general intent crime whenit is not. Noinstruction made cleartojurors that specific intent was required for aiding and abetting. While CALJIC No. 9.90 discussed “specific intent,”that instruction conflicted directly with the court’s other instructions. Any juror who questioned what intent was required for torture would have returnedto the twoinstructionsthat defined general and specific intent, and to which offenses and theories they applied. Doing so would have left jurors with the unmistakable, yet wrong, impression that torture was a general intent crime. CALJIC No.9.90 conflicted with CALJIC Nos. 2.02, 3.30, and 3.31, and did not clarify them. A conflict between instructions does not clarify either instruction. In a similar situation, the United States Supreme Court explained “nothing in these specific sentences orin the charge as a whole makesclearto the jury that one ofthese contradictory instructions carries more weight than the other. Language that merely contradicts and does not explain a constitutionally infirm instruction will not suffice to absolve the infirmity. A reviewing court has no way of knowing which of the two irreconcilable 312 instructions the jury applied in reaching their verdict.” (Francis v. Franklin (1985) 471 U.S. 307, 322 [105 S.Ct. 1965, 85 L.Ed.2d 344].) The failure to instruct the jury on an element of a charged offense is structural error, and requires reversal absent any showing of prejudice. Johnson v. United States (1997) 520 U.S. 461, 468 [117 S.Ct. 1544, 137 L.Ed.2d 718}, defined a “structural error”as “a defect affecting the framework within whichthetrial proceeds, rather than simply anerrorin the trial process itself.” Without knowledgeofall ofthe required elements, thejury was unable to render a complete verdict on every element of torture, and also on the required specific intent element of aiding and abetting murder. This deprived Hardy ofhis right to ajury trial on all ofthe elements ofthe charged in counts 1 and 8, andin thetorture allegations. This failure affected the framework of the trial and constituted structural error requiring reversal. (Sullivan v. Louisiana (1993) 508 U.S. 275, 280 [113 S.Ct. 2078, 124 L.Ed.2d 182]; Arizona v. Fulminante (1991) 499 U.S. 279, 309 [111 S.Ct. 1246, 113 L-Ed.2d 302].) Morever, evenifthe instructional errors are not structural error, under the facts of this case, it is not possible for “the beneficiary of a constitutional error [i.e., the prosecution] to prove beyond a reasonable doubtthat the error complained of did not contribute to the verdict obtained.” (Chapman v. 313 California, supra, 386 U.S. at p. 26; Neder v. United States (1999) 527 U.S. 1, 4 [119 S.Ct. 1827, 144 L.Ed.2d 35].) An instructional error omitting an element “will be deemed harmless only in unusual circumstances, such as where each element was undisputed, the defendant wasnot prevented from contesting any ofthe omitted elements, and overwhelming evidence supports the omitted element.” (People v. Mil (2012) 53 Cal.4th 400, 414.) Neder instructs reviewing courts to “conduct a thorough examination of the record. If at the end of that examination, the court cannot conclude beyond a reasonable doubt that the jury verdict would have been the same absent the error-for example, where the defendant contested an omitted element and raised evidence sufficient to support a contrary finding- it should notfind the error harmless.” (People v. Mil, supra, 53 Cal.4th at p. 417, citing Neder v. United States, supra, 527 U.S.at p. 19.) Because “the appellate court presumesthe jurors faithfully followedthetrial court’s directions, including erroneousones. . . , it must be accepted the jurors failed to deliberate on any element taken from the jury by the court’s misdirection.” (People v. Lawson (1987) 189 Cal.App.3d 741, 748, citing SparfandHansen v. United States (1895) 156 U.S. 51 [15 S.Ct. 273, 39 L.Ed. 343].) 314 Based on the foregoing, the judgment of guilt on counts 1 and 8, the true findings on the torture allegations to counts 1, and 4 through 7, andthe judgment of death should be reversed. 315 XI THEJUDGMENTOFDEATHANDTHEJUDGMENTOF GUILT ON COUNT 1 SHOULD BE REVERSED BECAUSE THE TRIAL COURT INSTRUCTED THE JURY IMPROPERLY ON FELONY MURDER THAT INCLUDED TORTURE, MURDER BY TORTURE, TORTURE AS A SPECIAL CIRCUMSTANCE, AND TORTURE, BASED ON CHANGESIN THE LAW THAT HAD NOT BEEN PASSED AT THE TIME OF THE OFFENSES. THE INSTRUCTION IMPERMISSIBLY PERMITTED A GUILTY VERDICT BASED ON AN IMPROPER LEGAL THEORY, IN VIOLATION OF HARDY’S RIGHT TO DUE PROCESS OF LAW UNDER THE FIFTH AND FOURTEENTH AMENDMENTS, RIGHT TO A JURY TRIAL UNDER THE SIXTH AND FOURTEENTH AMENDMENTS AND THE STATE CONSTITUTION, AND THE PROHIBITION AGAINST EX POST FACTO AND THE IMPOSITION OF CRUEL AND UNUSUAL PUNISHMENTIN THE EIGHTH AND FOURTEENTH AMENDMENTS, AND ARTICLE I, SECTION17, OF THE CALIFORNIA CONSTITUTION. Summary of Argument. Thetrial court instructed thejury on torture in multiple ways, including: (1) a theory of first degree murder based on felony murder with torture as the felony; (2) first degree murderby torture; (3) torture as a felonyto find first degree murder based on aider and abetter liability; (4) torture as a special circumstance to murder; (5) torture as an enhancementallegation to counts 4 through 7; and (6) as a substantive offense in count 8. Thetrial court instructed on a theory of felony murder based on torture, when “torture in violation of section 206 was not added to section 189's list of predicate 316 felonies... until 1999, after Sigler’s murder. [Citation.]” (People v. Pearson (2012) 53 Cal.4th 306, 319.) The charged crimes occurred in the late night hours of December 28, 1998, and the early morning of December29, 1998. (See e.g., 11RT 2250.) As explained in Argument VIII, ante, an instructional error that involves an improper legal theory for guilt on murder requires reversal. (People v. Guiton, supra, 4 Cal.4th at p. 1128; Mills v. Maryland, supra, 486 U.S.at p. 376.) Theinstructions improperly placed beforejurorsatheory offirst degree murderthat did not exist at the time of the offenses, and thereby violated the constitutional prohibition against ex post facto laws. Article I, section 10 of the United States Constitution provides: “NoState shall ... pass any ... ex post 99facto law... .” An ex post facto law retroactively changes the legal consequenceofan act committed before the law changed. The ex post facto clause prohibits three categories of legislative acts: “any provision [1] which punishesas a crime an act previously committed, which was innocent when done; [2] which makes more burdensomethe punishmentfor a crime, afterits commission, or [3] which deprives one charged with crime of any defense available according to law at the time when the act was committed... . (Collins v. Youngblood (1990) 497 US. 37, 42 [110 S.Ct. 2715, 2719, 111 317 L.Ed.2d 30], quoting Beazell v. Ohio (1925) 269 U.S. 167, 169 [46 S.Ct. 68, 70 L.Ed. 216].) B. The Erroneous Torture Instructions. The concept oftorture permeated the trial. Yet the verdicts definitively show jurors found Hardy wasnot the actual killer, and was not armed with, and did not use a weapon,including the one usedto inflict torture. Rather, jurors found Hardy wasvicariously liable. The jury found Hardy guilty of murder based on either aiding and abetting liability, or that he was a “major participant and acted with reckless indifference to humanlife.” Jurors selected choice “B”on the verdict form, and did not find Hardy wastheactual killer, which was choice “A” on the form. (3CT 597.) Jurors also were not convinced Hardy personally was armed or used a weapon. Thejury found not true all allegations ofpersonal arming or personal use of a weaponrelating to counts 2 through 5, and failed to reach findings on weaponallegationsrelating to counts 1, and 6 through 8. (3CT 597, 599-605.) Jurors wereinstructed 11 times on torture during the guilt phase. First, CALJIC No. 3.30 was modified to tell jurors,in part, that torture was a general intent crime. (2CT 538 [the “crime[s] and unless otherwise instructed the [allegation[s]] charged in Count[s]... 8, namely... torture”.].) 318 Second, CALJIC No. 3.31, as modified, told jurors that counts 1 through 3, and “the special allegations pursuant to Penal code section 667.61 (a), (b), (c), (d), and (e) . . . “ require specific intent. (2CT 539.) Section 667.61, subdivision (d)(3) alleged in counts 4 through 7 that the defendant inflicted torture in the commission ofthe offenses. Third, CALJIC No. 3.02 instructed on the natural and probable consequence theory of aiding and abetting liability. Initially, the court instructed jurors Hardy could be found guilty “as charged in Count{[s] 1-8" under if the crime was committed, Hardy aided and abetter, a co-principal committed one of the crimes, and any crime was the natural and probable consequenceof any other crime. (2CT 543-544.) The instruction identified the seven charged offenses, and excluded torture. Jurors noticed torture was listed by reference to count 8, but not identified by name as were the other seven counts. This prompted jurors to ask, “In instruction (3.02 1 of 2) on page 1 of 2, each crime except fortorture is listed and the it [sic] reads, ‘as charged in Count[s] 1-8.’ However, since ‘torture’ is in fact count #8, should ‘torture’ be includedor notin that part of the instructions?” (3CT 590.) The court’s response was, “No,the instruction should have stated ‘Counts 1-7.’” (3CT 590.) 319 Fourth, CALJICNo. 8.10 defined murder,listed three elements required to prove murder, the third of which was“the killing [was done with malice aforethought] [or] [occurred during the commission of any of the following crimes:[including] torture... .” (2CT 545.) Fifth, the court gave a special instruction requested by the prosecutor, telling jurors they “need not unanimously agree on the theory of first degree murder.” (2CT 547.) By way of example, the special instruction explained, “the jury need not agree as to whether the murder was deliberate and premeditated or if the murder was committed during . . . torture, in order to find the defendant guilty offirst degree murder.” (2CT 547.) Sixth, CALJIC No. 8.21 instructed the jury on first degree felony murder, and includedtorture amongthe felonies that made the unlawfulkilling first degree murder. (2CT 550.) Seventh, CALJIC No. 8.24 explained murderbytorture, stating that murder“perpetrated by torture is murderin the first degree.” The instruction listed three elements, including the intent requirement that the murder was committed “with a willful, deliberate, and premeditated intent to inflict extreme and prolonged pain... .” (2CT 551.) The third element wasthat the acts taken to inflict extreme and prolongedpain werethe cause ofdeath. (2CT 441.) 320 Eighth, CALJIC No. 8.27 instructed on aider and abettor liability for murder based on felony murder, and included torture amongthe felonies that triggered liability. (3CT 552.) Ninth,citing section 190.2, subdivision (a)(17), CALJIC No.8.80.1 told jurors if they found Hardy guilty ofmurder, they also had to determine if one or more ofthe special circumstances, including torture, occurred. (2CT 553- 554.) Tenth, CALJIC No. 9.90 explained the elements of the substantive crimeoftorture alleged in count 8. (2CT 568.) Eleventh, a special instruction on the section 667.65, subdivision (d)(3) allegations to counts 4 through7,told that to find the allegation true, jurors had to find the defendant committed the charged offense, and “inflicted torture on the victim as defined elsewhere in these instructions.” The jury found Hardy guilty of first degree murder as an “Aider and Abettor ... or... a Major Participant . . . ,” and foundtrue the special circumstance oftorture. (3CT 597-598.) The jury also found Hardy guilty of torture in count 8, and foundtruethe torture allegations to counts 4 through 7. (3CT 601-605.) People v. Pearson, supra, 53 Cal.4th at page 319, concluded the theory of felony murder by torture could not apply to a crime that predated 1999, whensection 189 was amended to include felony murderbytorture. 321 In Pearson, this Court found the error was harmless because Pearson’s “jury necessarily found he murdered Sigler while engaged in the commission” of one ofthe enumerated section 189 felonies. (People v. Pearson, supra, 53 Cal.4th at p. 320, citing People v. Marshall (1997) 15 Cal.4th 1, 38.) As explained in Argument VIII, ante, the standard for reversal based on factual or legal deficiencies in the prosecution’s case differ. Argument VIII also demonstrated the evidence failed to establish an independentfelonious purpose for any ofhe several felonies. Thus, the felony murder doctrine cannot serve as an alternative basis for finding the error harmless. In cases where the verdict may have been based on legally impropertheory, reversal is required unlessthereis “‘a basis in the record to find that the verdict wasactually based on a valid theory.” (People v. Guiton, supra, 4 Cal.4th. at p. 1129 [fn. omitted].) It is not a question ofwhether another, proper legal theory supports the verdict. It is a question ofwhether the jury’s findings establish with certainty the conviction was not based on an improper theory. (Contra, People v. Marshall, supra, 15 Cal.4th at p. 38.) The most substantial question for the jury was on count 1, murder. It wasthefirst count, and the prosecutortold the jury their first step was to determine Hardy was guilty of murderin the first degree. (1IRT 2360.) The first verdict form jurors had to complete was for 322 murder. (3CT 597.) Only after jurors decided murder did they turn their attention to the special circumstances, including whether the special circumstance of torture was true. (3CT 598.) This order permitted jurors to reach a verdict on murder under any of the prosecutor’s proffered theories, including murder bytorture, then backfill findings on the less heinousspecial circumstances. What this meant is that when jurors focused on the question ofmurderfirst, under the instructions they could have reached a guilty verdict on an impropertheory. Here, the guilty verdict on count 1 must be set aside because “it could be supported on one ground butnot another,” and this Court cannot be certain “which of the two grounds wasrelied upon bythe jury... .” (Mills v. Maryland, supra, 486 U.S.at p. 376.) Based on the foregoing,the guilty verdict on count 1, and thejudgment of death, must be reversed. 323 Xill THE JUDGMENT OF GUILT TO COUNT2, ROBBERY, THE SPECIAL CIRCUMSTANCE FINDING OF THE COMMISSION OF ROBBERY DURING A MURDER, THE FIRST-DEGREE MURDER CONVICTION, AND THE JUDGMENT OF DEATH SHOULD BE VACATED, BECAUSE THE TRIAL COURT FAILED TO INSTRUCT THE JURY ON THE LESSER INCLUDED OFFENSE OF THEFT, IN VIOLATION OF: (1) HARDY’S RIGHT TO DUE PROCESS OF LAW UNDER THE FEDERAL AND STATE CONSTITUTIONS; (2) HARDY’S RIGHT TO A JURY TRIAL UNDER THE FEDERAL AND STATE CONSTITUTIONS,AND (3) THE FEDERALAND STATE PROHIBITIONS AGAINST IMPOSITION OF CRUEL AND UNUSUAL PUNISHMENT. Summary of Argument. The jury found Hardy guilty in count 2 of robbery, and found the robbery special circumstance true. (2CT 597, 599.) The robbery count and special circumstance were based on evidencethat Sigler had been given some food stamps on the eveningofher death; food stamp couponsthat might have been in Sigler’s possession were used at a market frequented by Hardy, Armstrong, andpossibly Pearson (10RT 2045-2049); and a food stamp booklet cover was found a weekafter the offenses, nextto the rear the building behind which Sigler’s body was found. (1ORT 2051, 2054.) There was no evidence when,in relation to the commission of the other offenses, the food stamps were taken,that is, either before, during, or afterward. No piece of evidence made any oneofthose times morelikely than not. 324 Thetrial court instructed on the elements ofrobbery using CALJIC No. 9.40, which included robbery in the felony murderinstructions using CALJIC Nos. 8.21 and 8.27, and included robbery in the special circumstances instructions using CALJIC Nos.8.80.1 and 8.81.17. (2CT 550-555, 558.) The court did not, however, instruct that theft is a lesser included offense of robbery. Grandtheft andtheft are lesser included offenses ofrobbery.*? (People v. Valdez (2004) 32 Cal.4th 73, 110; People v. Ortega (1998) 19 Cal.4th 686, 693-694; People v. Turner (1990) 50 Cal.3d 668, 690; Peoplev. Ramkeesoon (1985) 39 Cal.3d 346, 351.) Sigler’s death would have been“rapid,” and she died within minutes of sustaining the injuries. (LORT 1964.) She also could have been rendered unconscious, before death, due to her injuries. (1ORT 1974.) Taking of property from the body of a person whois already deadis theft, not robbery. (People v. McGrath (1976) 62 Cal.App.3d 82, 86-88.) Taking property from an unconsciouspersonis also theft when the intent to 30 The difference between grand theft and petty theft is determined by the value and nature ofthe property taken. (See e.g., §§ 484, 487, 488.) Two food stamp couponspossibly from Sigler’s book were obtained from the Lorena Market: one worth $5, the other worth $1. (LORT 2039.) The parties stipulated that Joseph O’Brien would have testified that on December29, 1998, he gave Sigler a $10 coupon book,containing a $5 coupon and a $1 coupon. (10RT 2065.) Thus, the value of the property taken did not meet the threshold amountfor grand theft, which was $400. For purposes of discussion, Hardy will refer to the offense as theft. 325 take the property was formed after the person became unconscious. (Cf., People v. Kelley, supra, 220 Cal.App.3d at pp. 1367-1368.) Thetrial court erred by failing to instruct the jury on the lesser included offense oftheft. Becausethis error was prejudicial, the judgmentofguilt to count 2 should be reversed,the special circumstance finding ofa robbery during the commission of a murder should be vacated, and the felony-murder conviction should be vacated. B. StandardofReview. Hardy incorporates the authorities requiring the de novo standard of review for instructional error set forth in Argument VIII, ante. Hardy also incorporates by reference the authorities cited in ArgumentVIII, that require reversal when conviction was based on an improperlegaltheory. C. The Trial Court Had a Sua Sponte Duty to Instruct the Jury on Theft as a Lesser Included Offense to Robbery. Under Beck v. Alabama (1980) 447 U.S. 625, 634 [100 S.Ct. 2382, 65 L.Ed.2d 392], the trial court had a duty underthe federal due process clause and Eighth and Fourteenth Amendments to instruct the jury on all lesser included offenses. Due process requires an instruction on a lesser included offense whenthe evidence warrants it. (People v. Gutierrez (2002) 28 Cal.4th 1083, 1145; People v. Avena (1996) 1 Cal.4th 394, 424.) The trial court also had a duty underthe Sixth and Fourteenth Amendments, (Sullivan v. Louisiana 326 (1993) 508 U.S. 275, 278 [113 S.Ct. 2078, 124 L.Ed.2d 182] [the Sixth Amendmentrequiresthe jury to find the facts which determine a defendant’s guilt]), and Article I, sections 7, 15, 16 and 17 of the California Constitution, to instructthe jury onall lesser included offenses. Additionally, as set forth in ArgumentVIII, ante, and incorporated fully by this reference, the trial court had a duty to instruct the jury on lesser included offensesin this capital prosecution to avoid violating the defendant’s rights under the federal and California Constitutions. Thetrial court had a sua sponte duty to instruct thejury on theft because the evidence raised a question of Hardy’s guilt of only theft. People v. Ramkeesoon, supra, 39 Cal. 3d at page 351, explained the requirement for courts to give sua sponte instructionson lesser included offenses “is based in the defendant’s constitutional right to have the jury determine every material issue presented by the evidence.” A reasonable jury could have found Hardy guilty of the lesser theft offense, and not the greater offense robbery offense based on substantial evidence. (People v. Valdez, supra, 32 Cal.4th at p. 116.) There wassubstantial evidence oftheft. As set forth in Argument VIII, ante, Hardy was not guilty of robbery because the intent to take Sigler’s property arose after she was either unconscious or deceased. (People v. Frye, supra, 18 Cal.4th at p. 956 [the defendant musthave formedtheintentto take 327 the victim’s property prior to the victim’s death in order to be guilty of robbery]; cf. People v. Kelley, supra, 220 Cal.App.3d at pp. 1367-1368 [affirming a robbery conviction ofan unconscious person whenthe defendant rendered the victim unconsciousfor the purpose ofperpetrating the robbery].) Only if Sigler was rendered unconsciousfor the purposeoftaking her property can the robbery conviction stand. (People v. Kelley, supra, 220 Cal.App.3d at p. 1368.) It is wholly improbable that three young males would act together to renderSigler unconsciousforthe purpose oftaking her food stamp coupons or clothing. The evidencepresented nothing from whichthe timingofthe taking of the food stamp couponscould be reasonably inferred. The location ofthe food stamp booklet cover closeto the building, and the distance from Sigler’s body, did not inform the determination ofwhen the coupons were taken. First, the booklet cover was found days on January 6, 1999, just over a week after the offenses on December 29, 1998. (LORT 2051.) The cover was paper, and easily could have been blownto the side of the building by wind, or moved there by animals or other people overthe course of that intervening week. Second, the prosecution’s evidence showedSigler died quickly after sustaining her injuries. It was not possible to determine exactly how long Sigler lived after the injuries. Her death was “rapid” - - within minutes. 328 (10RT 1964.) All injuries occurred within a short time. (1ORT 1976.) It could not be determined whetherSigler lost consciousness while suffering her injuries. (1ORT 1973.) Certainly, her neck and head injuries could have rendered her unconscious. (1ORT 1974.) The facts surrounding the offenses support a reasonable conclusion that the taking of Sigler’s property was incidental to the other offenses, occurring after their completion. The prosecutor’s theory that the offenses occurred because Sigler had only $6 in food stamps, which angered her attackers, was speculation, and found no support in the evidence. (But see, 11RT 2356 [prosecutor’s closing argument].) A morelikely scenario wasthat while Sigler lay unconsciousor dead, Hardy, Pearson and Armstrong gathered her clothing and other items, found the food stamp booklet, and took it. The absence of evidence about when the food stamp coupons were taken, along with the circumstances surrounding the other offenses, and that Sigler expired within minutes of suffering her injuries, was substantial evidence that only theft, not robbery occurred. Third, the prosecutor’s argument that Hardyparticipated in the robbery when, days later, he went to the market and spent the food stamps, was an | improper legal theory for robbery. The robbery, if any, ended when the robber(s) reached a place oftemporary safety. A robbery remains in progress 329 until the perpetrator has reached a place of temporary safety. (People v. Wilkins (2013) 56 Cal.4th 333, 340-341, 345 [felony murderliability continues throughout robber’s flight from scene until place of temporary safety is reached]; People v. Flynn (2000) 77 Cal.App.4th 766, 772.) The question of whether a defendant has reached a place of temporary safety is usually a questionoffact for thejury. (People v. Johnson (1992) 5 Cal.App. 552, 559.) Thetest for whether the defendant has reached a place oftemporary safety is objective. CUd., at pp. 559-560.) By the time Hardy used the food stamp couponsat the Lorena Market,all participants had reached places oftemporary safety. They rode the bus home, went about their activities, and were no longer fleeing or in hiding. (Cf., People v. Ford (1966) 65 Cal.2d 41, 57 [defendant burglarized residence, and later shot andkilled a police officer; “it cannotbeheld that the homicide can be promoted to murderofthefirst degree on the theory that the homicide was committed in the perpetration of a robbery.”].) This was not a situation where Hardy wasfleeing while being pursued by law enforcement immediately after the crimes. (Compare, People v. Salas (1972) 7 Cal.3d 812, 823 [homicide committed during course of robbery where defendant wasin “hotflight” and pursued by law enforcement within three minutes ofthe robbery andkilling occurred six to seven minutes later].) 330 Initially the trial court did not instruct on second degree murder. However, the verdict form for count 1 required jurors to select either first or second degree murder. (3CT 597.) During deliberations, the jury asked for a definition ofsecond degree murderreferencing the verdict form. (3CT 590.) Thereafter, the trial court instructed with CALJIC No.8.30, whichtoldjurors, in pertinent part, that: If the felony was an enumerated felony then the murder would be first degree murder. All felonies alleged in this case are enumerated felonies. Stated another way, if you find the evidenceis insufficient to prove deliberation and premeditation and you further find that the murder did not occur during the commission ofany ofthe felonies listed in counts 2 through 8, then the murder would be of the second degree. (2CT 584.) This instruction failed to address the verdict on count 1 ifjurors wereto find a lesser offense in counts 2 through 8. Jurors were not required to specify, or be unanimous, on the theory ofmurder. Thus, some jurors may have found the evidence was insufficient to prove deliberation and premeditation, and reacheda guilty verdict concluding the murder occurred during a robbery (count 2) without having considered whether the alleged robbery wasonly theft. The evidence here contrasts with People v. Castaneda (2011) 51 Cal.4th 1292, and People v. Gray (2005) 37 Cal.4th 168. Each ofthose cases considered whether there waserror in failing to instruct on theft as a lesser 331 included ofrobbery in a capital case. In each case, items of significant value were taken: in Castaneda a watch, ring and credit cards, and in Gray, coin collections and cash. (People v. Castaneda, supra, 51 Cal.4th at p. 1331; People v. Gray, supra, 37 Cal.4th 168 at p. 219.) Castaneda rejected the argumentthat instruction on theft was warranted, concluding the evidence showed the defendant had multiple motives for killing the victim, including robbery, which could have coincided with the defendant’s angerat the victim. (People v. Castaneda, supra, 51 Cal.4th at p. 1332.) In Gray, the victim’s house wasransacked andthe property discovered missing. (People v. Gray, supra, 37 Cal.4th 168 at p. 219.) In both cases, this Court concluded there had been no evidence presented by either party, from which a jury could have found only theft. In contrast, the evidence presented in Hardy’s case showed nothing from whichanintent to take property could have been inferred before the commission of the other offenses. The prosecution presented Hardy’s statement describing the encounter with Sigler from start to finish. Atno point did he describe any taking of Sigler’s property until the end ofthe encounter. He mentioned taking only clothing. His explanation of the initial encounter was that it began because Sigler made a racial slur. The ensuing verbal argument quickly becamephysical. Sinceit was the prosecution’s burden to prove the requisite timing of the intent to take, and since the evidence 332 supported equally the inference of an after-acquiredintent, the instruction on theft was required. Further, the omission of instruction on the lesser included offense of theft increased the likelihood the jury would impose the death sentence, because the jury’s finding on the robbery charge and special circumstance could be consideredpart ofthe circumstancesofthe crime. Had thejury found Hardyguilty only oftheft, that basis for felony murder and the robbery special circumstance would also havefallen aside. Therule is that the trial court does not have to instruct sua sponte on a lesser included felony that forms the basis for a felony murdertheory, or as a special circumstance, when the felony at issue was not separately charged. (People v. Valdez (2004) 32 Cal.4th 73, 110-111; People v. Cash (2002) 28 Cal.4th 703, 737; People v. Silva (2001) 25 Cal.4th 345, 371.) Here, the felony at issue, robbery, was charged, andthe state of the evidence required instruction on the lesser included offense oftheft. D. The Duty to Instruct on Theft Applied Equally Both to Felony Murderand the Robbery Special Circumstance. The robbery felony-murder finding, and the robbery special circumstance finding, made Hardyeligible for the death penalty. This Court has held that a trial court does not have a sua sponte duty to instruct the jury on theft as a lesser included offense of robbery when robbery is alleged only 333 as the felony in a felony-murder prosecution, or alleged as a special circumstancefor the death penalty. (People v. Valdez, supra, 32 Cal.4th atpp. 110-111; People v. Cash, supra, 28 Cal.4th at p. 737; People v. Silva, supra, 25 Cal.4th at p. 371.) The situation here, however, differs because robbery wasalso alleged as a separate offense, which triggered the duty to instruct on lesser included offenses not only for the charged greater offense, but also relating to felony murder andthe special circumstance. Thus, the issue here, unlike in Valdez, Cash, and Silva, is how the court’s sua sponte duty to instruct on a lesser included offense (theft) extends to a robbery special circumstance allegation and robbery felony-murder whenthe robbery is also a separately charged count. Beck v. Alabama, supra, 447 U.S. 625, held the trial court’s failure to instruct the jury on a lesser included offense raised by the evidence violated the defendant’s right to due process of law and the Eighth Amendment prohibition against imposition of cruel and unusual punishment. (Id. at pp. 637-638.) The Court reasoned the failure to instruct on a lesser included offense enhancedthe risk of an unwarranted conviction. (Ibid.) The same rationale applies to Hardy’s case. The lesser included offense at issue in Beck v. Alabama wasfelony- murderasa lesser offense ofrobbery-intentional killing. The lesser included 334 offense at issue in this case is theft as a lesser included offense of robbery. The dueprocessclause, and the Eighth Amendmentprohibition against cruel and unusual punishment, required instructions on the lesser included offense of felony-murder in Beck v. Alabama and apply equally to require instruction on the lesser included offense of theft in Hardy’s case. Robbery is a more serious offense than theft. The jury found robbery true as a special circumstance and also found robbery was a felony supporting the felony- murder conviction. Hardy’s commission of a robbery, not a theft, necessarily influencedthejury in its decision that death was the appropriate punishment. The trial court’s failure to instruct the jury on the lesser offense of theft increased the likelihood that Hardy would suffer the death penalty because the jury should have been considering a lesser crimein its sentencing decision. Hardy’s right to a jury trial under the Sixth and Fourteenth Amendments, and Article I, Section 16 of the California Constitution, also requiredthetrial court to instruct the jury on the lesser included offense of theft. (Sullivan v. Louisiana (1993) 508 U.S. 275, 278 [113 S.Ct. 2078, 124 L.Ed.2d 182] [Sixth Amendment requires jury to find facts that show defendant’s guilt].) The jury was required to determine if Hardy’s conduct amountedto only theft, not robbery. 335 The prohibition against cruel and unusual punishmentin the Eighth and Fourteenth Amendments requires heightened reliability in the fact finding process during the guilt phase of a capital prosecution. (Beck v. Alabama, supra, 447 U.S. at p. 632.) The California Constitution, Article I, section 17, also prohibits cruel and unusual punishment, andsimilarly requires heightened reliability in the guilt phase of a capital prosecution. (People v. Ayala (2000) 23 Cal.4th 225, 262-263.) By preventing the jury from considering Hardy’s guilt ofan offense that would have removed him fromeligibility for the death penalty (at least with regard to the felony-murder conviction based on robbery or the robbery special circumstance allegation), the trial court’s failure to instruct the jury on theft increased the risk that Hardy would erroneously be sentenced to death. Robbery also was a charged offense in count 2 in the instant case. The rule that instruction on lesser included offenses is not required for felony murder and special circumstance allegations applies only when the greater offense was not a charged crime. (People v. Silva, supra, 25 Cal.4th at p. 371 [concluding that because robbery was not a charged offense,the trial court did not have a sua sponte duty to instruct the jury on theft as a lesser included offense of robbery under the felony-murder charge and robbery special circumstanceallegation].) It would makenosense to require instruction sua 336 sponteona lesser included offense where the greater offense ofrobbery carries a punishment of two, three or five years (§ 213), but require no similar instruction when the robbery, as felony murder or a special circumstance, operates to increase punishmentto death. Here, because robbery was charged in count 2, the trial court had a sua sponte to instruct the jury on theft as a lesser included offense for the count, the felony-murder, and the special circumstanceallegation. Additionally, this Court should reconsider andreverse,orclarify, earlier decisions, and hold trial court has a sua sponte duty to instruct the jury on lesser included offenses when the greater offense is alleged as a felony in a felony-murdercharge oras a special circumstance. Due process requiredthe trial court to instruct the jury on theft as a lesser included offense of robbery for the felony-murder charge and the robbery special circumstances. Felony- murder constitutes first degree murder (§ 189), and places the defendantin the class of defendants potentially eligible for the death penalty. (§190.2, subd. (a).) True findings to special circumstances make the defendant eligible for the death penalty. (§ 190.2, subd. (a)(1)-(22).) The samerationale in Beck v. Alabama, requiring instruction on a lesser included offense for a murder charge also applies to instruction on a lesser included offense for a felony- murder charge anda special circumstanceallegation. “[W]hen the evidence 337 unquestionably establishes that the defendant is guilty of a serious, violent offense—but leaves some doubt with respect to an elementthat would justify conviction ofa capital offense—the failure to give the jury the ‘third option’ of convicting on a lesser included offense would seem inevitably to enhance the risk of an unwarranted conviction.” (Beck v. Alabama, supra, 447 U.S.at p. 637.) The trial court’s failure to instruct thejury on theft for the felony-murder charge and the robbery special circumstanceallegation erroneously increased the risk that Hardy would becomeeligible for, and receive, the death penalty. Hence, due process of law requiredthetrial court to give theft instructions as a lesser included offense of robbery for the felony-murder charge and the special circumstancesallegation. Any decision by this Court holding that instructions on lesser included offenses are not necessary for predicate felonies under the felony-murder doctrine, or for special circumstanceallegations, runs afoul of the procedure condemned by Beck v. Alabama. In Beck v. Alabama, the High Court found the Alabamadeathpenalty statute unconstitutional becauseit deprivedthejury of the option of finding the defendant guilty of a lesser offense which would have removed him from eligibility for the death penalty. (Beck v. Alabama, supra, 447 U.S.at pp. 636-638.) Similarly, decisions by this Court failing to requirejury instructions onlesser includedoffense for predicate felonies under 338 the felony murder doctrine, and for special circumstanceallegations, deprives thejury ofthe option offinding that the defendant committed a crimeless than that chargedin those allegations, which would make the defendantineligible for the death penalty. This outcome cannot be reconciled with Beck v. Alabama. Schad v. Arizona (1991) 501 U.S. 624 [111 S.Ct. 2491, 115 L-Ed.2d 555], is consistent with Hardy’s positionthere is a right to ajury instruction on theft for the felony-murder charge and the robbery special circumstance allegation. In Schad, the defendant was found guilty offirst-degree murder under theories of premeditated murder and felony-murder based on the commission of a robbery. The defendant argued he was entitled to a jury instruction on robbery as a lesser included offense of the felony-murder allegation. Thetrial court in Schad v. Arizonainstructed the jury on the lesser included offense of second-degree murder. The defendant argued that Beck v. Alabamaentitled him to a jury instruction on robbery. The Schad Court noted, “[o]ur fundamental concern in Beck wasthat a jury convincedthat the defendant had committed some crime but not convincedthat he was guilty of a capital crime might nonetheless vote for a capital conviction if the only alternative was to set the defendantfree with no punishmentat all.” (Schad v. Arizona, supra, 501 U.S.at p. 646.) 339 Schad concluded the concern in Beck v. Alabama was“not implicated in the present case, for petitioner’s jury was not faced with an all-or-nothing choice between the offense of conviction (capital murder) and innocence.” (Schad v. Arizona, supra, 501 U.S.at p. 647.) Here, in contrast, the trial court gave only one instruction on second degree murder, and did so onlyafter the jury asked aboutthe verdict form, which required the jury to select eitherfirst or second degree murder. The court then instructed with CALJIC No.8.30. (3CT 584, 590, 597.) This instruction told the jury all enumerated felonies, including robbery, made the murderfirst degree. Thus, Hardy’s jury did not have any meaningful option of convicting Hardy of a murderchargelesser to that of first degree murder. Hardy’s jury essentially was in the position of finding him guilty of a crime that made him eligible for the death penalty, or finding him not guilty of any murderat all. Under these circumstances, the jury needed the option of finding Hardy committed a felony less than the category of felonies that triggered his eligibility for the death penalty. The Eighth Amendment prohibition against cruel and unusual punishment, as applied to the States through the Fourteenth Amendment, also requires instruction on the lesser included offenses to greater offenses upon which a felony murder theory or special circumstance is based. The function of special circumstance findingsis to narrowthe class of defendants eligible 340 for the death penalty to the worst offenders. (Lowenfield v. Phelps (1988) 484 USS. 231, 244 [208 S.Ct. 546, 98 L.Ed.2d 568] [to pass constitutional muster under the Eighth Amendment, a capital sentencing scheme must genuinely narrow the class ofperson eligible for the death penalty and must reasonably justify the imposition ofa more severe sentence on the defendant compared to the others found guilty ofmurder].) Section 189 sets forth an exclusivelist of felonies that make a defendant guilty offirst-degree murder deatheligible. That list does not include theft. Similarly, the special circumstanceslisted in section 190.2, subdivision (a), that make a defendant eligible for the death penalty do not include theft. California’s statutory scheme to narrow and determinetheclass ofdefendantseligible for the death penalty cannot perform the narrowing function required by the Eighth Amendment if the jury is precluded from considering whetherthe defendant committed a crimeless than the crime whichtriggers the defendant’s eligibility for the death penalty. The rationale adopted by this Court not to require lesser included offenses for a felony murder charge and special circumstance allegation is flawed. People v. Silva cited People v. Miller (1994) 28 Cal.App.4th 522, and People v. Memro (1995) 11 Cal.4th 786, 888-890 (conc. & dis. opn. of Kennard,J.) for the propositionthat the trial court’s sua sponte duty to instruct on lesser included offenses “does not extend to uncharged offenses relevant 341 only as to predicate offenses under the felony-murder doctrine.” (People v. Silva, supra, 25 Cal.4th at p. 371.) In People v. Memro, Justice Kennard dissented from language in the majority opinion that could beinterpreted as suggesting a defendant hadtheright to a jury instruction on a lesser included offense when the greater crime served only as a predicate offense for a felony- murder charge. The majority opinion concluded lesser included offense instruction wasnot required becausethe evidencedid notraise the defendant’s guilt of that offense. (People v. Memro, supra, 11 Cal.4th at pp. 870-873.) Any language in People v. Memro from the majority opinion, or Justice Kennard’s concurring and dissenting opinion, concerning instructions onlesser included offenses for predicate felonies under the felony-murder doctrine constitutes dicta. Neither opinion addressed how thetrial court’s failure to instruct on lesser offenses for predicate felonies in a felony-murder impacts the constitutionality of California’s sentencing scheme under the Eighth Amendment. In People v. Miller, supra, 28 Cal.App.4th 522, the defendant was found guilty of felony-murder. The jury found true a robbery special circumstance. The defendant argued thetrial court erred by failing to instruct the jury on grand theft as a lesser included offense of robbery. The Court of Appealrejected the argument because “the included offense doctrine applies 342 only to charged offenses.” (People v. Miller, supra, 28 Cal.App.4that p. 526.) People v. Miller was nota capital case, and therefore did not consider how due process and Eighth Amendmentjurisprudencein the contextofcapital cases impacted the analysis. People v. Silva erred by relying on dicta in Justice Kennard’s concurring and dissenting opinion in People v. Memro, and the opinion in People v. Smith, for the proposition that, in a capital prosecution, the trial court’s sua sponte duty to instruct on lesser included offenses “does not extend to uncharged offenses relevant only as predicate offenses under the felony-murder doctrine.” (People v. Silva, supra, 25 Cal.4th at p. 371.) Neither case supported this broad conclusion. In People v. Cash, supra, 28 Cal.Ath 703, this Court revisited the question. The defendantin Cash argued thetrial court’s failure to instruct the jury on lesserincluded offense of a greater offense that formed the basis for the felony murdercharge, and the special circumstanceallegation,violated his Sixth Amendmentright to present a defense and Eighth Amendmentright not to be subject to cruel and unusual punishment. This Court rejected the argument because “[d]efendant’s claim does not fall within the limited situations in which such claims implicate rights underthe federal Constitution. California requires a sua sponte instruction on lesser included charged offenses regardless ofwhetherthe caseis a capital, or anoncapital, one. Therefore, the 343 unavailability of a lesser included offense instruction to an uncharged crime does notoperate to weightthe outcomein favorofdeath for defendants facing capital charges.” (People v. Cash, supra, 28 Cal.4th at p. 738, citing Hopkins v. Reeves (1998) 524 US. 88, 96 [118 S.Ct. 1895, 141 L.Ed.2d 76], Beck v. Alabama, supra, 447 U.S. at pp. 637-638 and People v. Waidla (2000) 22 Cal.4th 690, 736, fn.5.) This reasoning is flawed becausethe failure to give jury instructions for a greater offense that forms the basis for a charge of felony murder, and a special circumstance, tips the outcome in favor of imposition of the death penalty. The failure to give the instruction makesthe defendant eligible for the death penalty when he otherwise would not be eligible for that punishment. Furthermore, because special circumstances are factors that make some murders worse than other types of murders, each special circumstance found true by the jury presumably plays somerole in convincing the jury that death was the appropriate punishment. Moreover, Hardy’s situation differs from cases where there was no evidence to support a conviction on the lesser offense. (Compare, People v. Castaneda, supra, 51 Cal.4th at p. 1328 [concluding no substantial evidence of lesser included offense].) Here, there was evidence that Hardy possessed the victim’s personal property after her death, but no evidence showed how, or when, that property came to be in Hardy’s possession. The “when”?is 344 important to robbery because the force or fear must have occurred for the purpose ofthe taking, and also the intent to take property must have preceded the application offorce or fear. The evidence here, unlike in Castaneda, made theft equally likely, but the jury was never provided instruction to decide that question. This Court’s conclusionthatlesser included offense instructions are not required for felonies alleged under the felony-murder doctrine, or as special circumstances, because“the included offense doctrine applies only to charged offenses,”(People v. Miller, supra, 28 Cal.App.4th at p. 526),is irreconcilable with Jones v. United States (1999) 526 U.S. 227,[119 S.Ct. 1215,143 L.Ed.2d 311] Apprendi v. New Jersey (2000) 530 U.S. 466 [120 S.Ct. 2348, 147 L.Ed.2d 435], Ring v. Arizona (2002) 536 U.S. 584 [122 S.Ct. 2428, 153 L.Ed.2d 556], and Blakely v. Washington (2004) 542 U.S. 296 1[24 S.Ct. 2531, 159 L.Ed.2d 403]. Jones v. United States considered the federal carjacking statute, which providedfor three maximum sentences depending on the level of harm sustained by the victim: 15 years (no serious injury to a victim), 25 years (“serious bodily injury”), and life (if the victim died). The structure ofthe statute suggested bodily harm was a sentencing provision. The High Court concluded the degree ofharm to the victim was an element ofthe crime. (Jones v. United States, supra, 526 U.S.at p. 232.) Jones reachedthis 345 conclusionin order to avoid reducingthejury’s role “to the relative importance of low-level gatekeeping,” (/d., at p. 244), and noted its decision was consistent with a “rule requiring jury determination of facts that raise sentencing ceilings”in state and federal sentencing guideline systems. (/d., at p. 251.) InApprendi v. NewJersey, the defendantpled guilty to several charges. Thetrial court enhanced the defendant’s sentence by 10 years because it found by a preponderance ofthe evidence that the defendant acted with a purpose to intimidate an individual or a group of individuals because of race. The issue was “whether the Due Process Clause ofthe Fourteenth Amendmentrequires that a factual determination authorizing an increase in the maximum prison sentence for an offense from 10 to 20 years be madebyajury onthe basis of proofbeyond a reasonable doubt.” (Apprendi v. New Jersey, supra, 120 S.Ct. at p. 2351.) Apprendi noted there was no historical distinction between an “element” of an offense and a “sentencing factor.” Thus, “the judge’s role in sentencing is constrained at its outer limits by the facts alleged in the indictment and found by the jury. Put simply, facts that expose a defendantto a punishmentgreater than that otherwise legally prescribed wereby definition elements of a separate offense.” (/d., at p. 2359, fn. 10.) 346 In Blakely v. Washington, the Supreme Court concluded a Washington State enhancement statute which depended on findings of fact made by the trial judge was unconstitutional: Our precedents make clear, however, that the “statutory maximum”for Apprendi purposes is the maximum sentence a judge may imposesolely on the basis ofthe facts reflected in the jury verdict or admitted by the defendant. See Ring, supra,at 602, 153 L.ED. 2d 556, 122 S.CT. 2428 (‘the maximum he would receive ifpunished accordingto the facts reflected in the jury verdict alone’” (quotingApprendi, supra, at 483, 147 L.ED. 2d 435, 120 S.CT. 2348)); Harris v. United States, 536 US. 545, 563, 153 L.ED. 2d 524, 122 S.CT. 2406 (2002) (plurality opinion) (same); cf. Apprendi, supra, at 488, 147 L.ED. 2d 435, 120 S.CT. 2348 (facts admitted by the defendant). In other words,the relevant “statutory maximum”is not the maximum sentence a judge may imposeafter finding additionalfacts, but the maximum he may impose without any additional findings. Whena judgeinflicts punishment that the jury’s verdict alone does not allow, the jury has not foundall the facts “which the law makesessential to the punishment,” Bishop, supra, §§ 87, at 55, and the judge exceedshis proper authority. (Blakely v. Washington, supra, 124 §.Ct. at p. 2537.) United States v. Booker (2005) 543 U.S.220 [125 S.Ct. 738, 160 L.Ed.2d 621], further explained Apprendi v. New Jersey and Blakely v. Washington. Booker noted that under those decisions, any fact which impacted the defendant’s maximumpotential sentence constituted an element of a crime: The fact that New Jersey labeled the hate crime a “sentence enhancement”rather than a separate criminal act wasirrelevant for constitutional purposes. Jd., at 478, 120 S.Ct. 2348. Asa 347 matter of simple justice, it seemed obviousthat the procedural safeguards designed to protect Apprendi from punishment for the possessionofa firearm should apply equally to his violation of the hate crime statute. Merely using the label “sentence enhancement”to describethe latter did not provide a principled basis for treating the two crimes differently. Jd. at 476, 120 S.Ct. 2348. (United States v. Booker, supra, 125 §.Ct. at p. 748.) Ring v. Arizona (2002) 536 U.S. 584 [122 S.Ct. 2428, 153 L.Ed.2d 556], considered the constitutionality of the capital sentencing scheme in Arizona. In Arizona, the jury determined the defendant’s guilt offirst-degree murder. The trial judge then determined the presence or absence of aggravating facts and whether a judgment of death should be imposed.” In Walton v. Arizona (1990) 497 U.S. 639 [110 S.Ct. 3047, 111 L.Ed.2d 511], the Supreme Court had upheld the constitutionality of Arizona’s sentencing schemebecause the additional facts found bythetrial judge were sentencing considerations and not “element[s] ofthe offense ofcapital murder.” (Walton v. Arizona, supra, 497 U.S. at p. 649.) Ring v. Arizona reconsidered the holding of Walton v. Arizonainlightofits decision inApprendi v. New Jersey. The Ring decision noted, “Apprendi repeatedly instructs in that context that the characterization of a fact or circumstance as an “element” or a “sentencing *' Under Arizonalaw, the aggravating facts included the defendant’s criminal backgroundas well as facts concerning the commission of the charged murder. 348 factor” is not determinative of the question, ‘who decided,’ judge or jury.” (Ring v. Arizona, supra, 536 U.S. at pp. 604-605.) Ring thus concludedthat, “TbJecause Arizona’s enumerated aggravating factors operate as ‘the functional equivalent of an element ofa greater offense,’ Apprendi, 530 U.S.at 494,n. 19, 120 S.Ct. 2348, the Sixth Amendmentrequires that they be found by a jury.” (Ring v. Arizona, supra, 536 U.S.at p. 609.) The foregoing United States Supreme Court decisions eliminated the concept of a “sentencing factor”as it pertains to facts that must be found to determine the maximum sentence that can be imposed on a defendant. The aggravating factors in Ring v. Arizona, which the Supreme Court concluded had to be found by the jury, are the functional equivalent of a felony alleged to support felony murder oras a special circumstance. The Supreme Court decisions above require the felonies alleged as special circumstances, and under the felony murder charge,to be treated as elements ofan offense. This Court’s conclusion that instruction on lesser included offenses need not be given for such allegations because “the includedoffense doctrine applies only to charged offenses,” (People v. Miller, supra, 28 Cal.App.4th at p. 526), is irreconcilable. The Fifth and Fourteenth Amendmentsright to due process of law, and the Sixth and Fourteenth Amendments right to a jury trial, as interpreted by Supreme Court decisionsante, require that special circumstance 349 allegations, andfelonies alleged in connection with felony-murder, be treated as elements of an offense. For the reasons above, this Court should reconsider and reverse or clarify its holdings in People v. Valdez, People v. Cash, and People v. Silva that jury instructions on lesser included offenses are not required for special circumstanceallegations and felonies alleged under a felony-murdercharge. Accordingly,the trial court erred by failing to instruct the jury on the lesser included offense of robbery for the felony-murder charge and the robbery special circumstanceallegation. E. The Error Was Prejudicial and Requires Reversal. The trial court’s failure to instruct the jury on the lesser included offense of theft violated Hardy’s federal right to due process of law,right to a jury trial, and the Eighth and Fourteenth Amendments prohibition against cruel and unusual punishment. Hence, the judgment of guilt to count 2, the special circumstance finding of robbery, and the felony-murder conviction based on robbery, must be reversed unless the error was harmless beyond a reasonable doubt. (Chapmanv. California, supra, 386 U.S. at p. 24.) Thetrial court’s failure to instruct thejury on theft violated Hardy’s state constitutional | rights because Hardy had a dueprocessright to havethestate follow its own laws and procedures. (Hicks v. Oklahoma, supra, 447 U.S.at p. 346.) The 350 violations ofHardy’s state constitutionalrights must result in reversal ofcount 2 unless those errors were harmless beyond a reasonable doubt. The failure to instruct the jury on theft was not harmless beyond a reasonable doubt. The evidence of robbery was scant. What the evidence showed, at most, was possession ofrecently stolen property, with no indication ofhow, or when,the food stamp coupons were taken. Hence, thejudgment of guilt on count 2, and the robbery special circumstance and the theory of robbery felony murder cannot stand. Because of the modification of the judgmentasset forth above, the judgment of death also should be reversed. 351 XIV REVERSAL ON COUNT 1, AND THE JUDGMENT OF DEATH,ISREQUIRED BECAUSETHEINSTRUCTIONS GIVENBYTHE TRIAL COURTMISSTATED THE LAW, BY FAILING TO INSTRUCT THE PROSECUTIONHAD TO PROVE BEYOND A REASONABLE DOUBT THE ABSENCE OF UNREASONABLE HEAT OF PASSION OR PROVOCATION THAT RENDERED HARDY UNABLE TO DELIBERATEAND PREMEDITATE,AND THEREBY VIOLATED HARDY’S RIGHT TO DUE PROCESS OF LAW UNDER THE FIFTH AND FOURTEENTH AMENDMENTS, AND RIGHT TO A JURY TRIAL UNDERTHE SIXTH AND FOURTEENTH AMENDMENTS,AND ARTICLEI, SECTIONS 7 AND 15 OF THE CALIFORNIA CONSTITUTION. Summary of Argument. The evidence showed Sigler made a racial slur at Hardy and his companions, using the inflammatory words “fuck you,” and “nigger.” This evidence was uncontradicted. Indeed, the prosecutor’s primary evidence against Hardy washis ownstatement, whichidentified Sigler’s use ofthe word “nigger”as the genesisofthe initial confrontation. A white person’s useofthe word “nigger,” when speaking to a black person, is extraordinarily inflammatory. “It is beyond question that the use of the word ‘nigger’ is highly offensive and demeaning, evoking a history ofracial violence, brutality, and subordination. This wordis ‘perhaps the most offensive and inflammatory racial slur in English, . . . aword expressive ofracial hatred and bigotry.’” (McGinest v. GTE Serv. Corp. (9th Cir. 2004) 360 F.3d 1103, 1116, quoting 352 Swinton v. Potomac Corp. (9th Cir. 2001) 270 F.3d 794, 817 [ellipsis in original].) “Any person in the United States should be aware of the N-word. Ignorance could bevery costly. Failing to recognizeit as the signal ofdanger that it often is could well lead to injury, just as using it unawareofits effects and consequences could well cost a person his reputation, his job, or even his life.” (Kennedy, Lecture: The David C. Baum Lecture: “Nigger!” As a Problem in the Law (2001) 2001 U.IILL.Rev. 935, 937.) A reasonableinterpretation ofthe evidence wasthat Hardy acted under subjective provocation, or unreasonable heat of passion, after hearing Sigler call him and his companions “niggers.” Such subjective provocation can reduce first-degree murder to second-degree if it reduces the defendant’s ability to premeditate and deliberate. Initially, the trial court did not instruct on second degree murder. Only after receiving the jury’s question aboutthe verdict form, which requiredjurors to make a finding whether the murder was first or second degree (3CT 590, 597), the trial court instructed with CALJIC No.8.30, which wastheonly instruction that explainedthe difference between first and second degree murderto the jurors. CALJIC No. 8.30 instructedthat second degree murder wasunlawfulkilling with malice aforethought, “but the evidenceis insufficient to prove deliberation and premeditation.” (2CT 584.) There wasnoinstruction on provocation. Instruction with only CALJIC No. 353 8.30 lessened the prosecution’s burden of proof and denied Hardy his constitutional rights to due process,a fair trial, and to present a defense. (U.S. Const., V. VI. & XIV. Amends.; Cal. Const., art. 1, § 7.) B. Standard of Review. Hardy incorporates by reference the authorities cited in Argument VIII, ante, that require reversal when conviction was based on an improperlegal theory. Hardy also incorporates from ArgumentVIII the standard of review for instructional error. C. TheIssue Is Cognizable on Appeal. Theissue is cognizable on appeal even though defense counsel did not object to the instruction, or request different instruction. Section 1259 provides: The appellate court may . . . review any instruction given, refused or modified, even though no objection was madethereto in the lowercourt, ifthe substantial rights ofthe defendant were affected thereby. This Court has applied section 1259 to review the correctness ofjury instructions, despite the lack of an objection in thetrial court. (People v. Cleveland (2004) 32 Cal.4th 704, 749; People v. Hillhouse (2002) 27 Cal.4th 469, 505-506.) Further, a defendant’s claim that an instruction misstated the law or violated his right to due process “is not the type [oferror] that must be preserved by objection.” (People v. Smithey (1999) 20 Cal.4th 936, 976,fn. 354 7; see also § 1259.) Here, the question whetherthe jury instructions properly explained the relevant law on provocation is a pure question of law that requires no factual development below. This Court can decide the issue just as readily as the trial court based on the existing record. Further, any such questions of law mustbe determined de novoby this Court in any event. (See e.g., Salve Regina College v. Russell (1991) 499 U.S. 225, 231 [111 S.Ct. 1217, 113 L.Ed.2d 190].) D. Applicable Legal Principles Required Additional Instruction on the Concept of Provocation. 1. Incendiary Racial Remarks Constitute Legal Provocation. Under California law, words alone can constitute provocation. People v. Barton (1995) 12 Cal.4th 196, 201, explained,“Heat ofpassionarises when ‘at the timeofthe killing, the reason ofthe accused was obscuredor disturbed by passion to such an extent as would causethe ordinarily reasonable person ofaverage dispositionto act rashly and withoutdeliberation andreflection, and from such passion rather than from judgment.’ [Citations.]” People v. Lee (1999) 20 Cal.4th 47, 49, further explained, “Although section 192, subdivision (a), refers to ‘sudden quarrel or heat ofpassion,’the factor which distinguishes the ‘heat of passion’ form of voluntary manslaughter from murderis provocation.” 355 Averbal argumentalone may constitute sufficient provocation toinstill heat of passion even under the “reasonable man”standard for provocation necessary for a finding of the “heat of passion” version of voluntary manslaughter. (People v. Valentine, supra, 28 Cal.2d at pp. 137-138; People v. Berry (1976) 18 Cal.3d 509, 515, cited with approval in People v. Beltran (2013) Cal. 4" [2013 Cal.Lexis 238, Slip. Op. June 3, 2013, p. 15. $192644]).) In Valentine, the jury wasinstructedthat“neither provocation by words only, however opprobrious, nor contemptuous. . . or gestures without an assault . . . are of themselves sufficient to reduce the offense . . . from murder to manslaughter.” (People v. Valentine, supra, 28 Cal.2d at p. 137.) On appeal, Valentine challenged the instruction as impermissible “judicial legislation engrafted upon the provisions of section 192.” In deciding Valentine and most recently in Beltran, this Court conducted an in-depth historical review and statutory analysis. The opinion concludedthat an “actualinjury” prerequisite forprovocation appeared to have existed under the Crimes and Punishment Act of 1850, but was not included in the Penal Code when enacted in 1872. (See e.g., People v. Valentine, supra, 28 Cal.2d at p. 137.) The Valentine opinion also sought to reconcile this Court’s own conflicting decisions. For example, People v. Bruggy (1892) 93 Cal.476, 481, had held “mere words” wereinsufficient provocation. People 356 v. Hurtado (1883) 63 Cal.288, 292, and People v. Logan (1917) 175 Cal.45, 48-49, conversely held words could be sufficient provocation. Valentine applied therule ofstatutory construction, and concluded that “the Legislature by deleting an express provision of a statute intended a substantial change in the law. [Citation.].” (People v. Valentine, supra, 28 Cal.2d at p. 142.) Accordingly, Valentine adopted the rule in Hurtado and Logan that mere words can be sufficient provocation. Valentine does not represent an outdated anomaly. In People v. Berry, supra, 18 Cal.3d 509,the defendant was convicted ofmurderafter the trial court omitted instruction on voluntary manslaughter. The defendant was married to a womanhalfhis age, and his new wife left for Israel three days after the couple married. When she returned,the wife taunted her husband with her love for a man in Israel, whom she believed had impregnated her. The wife had intercourse with the defendant, but said it would be the last time because of her love for the man in Israel. The wife engaged in other sexual taunts and arguments, which ended with the defendant throttling her. In Berry, the Court noted its decision in People v. Logan, supra, 175 Cal. at pages 48-49, that “it is left to thejurors to say whether ornotthe facts and circumstancesin evidence are sufficient to lead them to believe that the defendantdid, or to create a reasonable doubt in their minds as to whether 357 or not he did, commit his offense undera heat ofpassion.” (People v. Berry, supra, 18 Cal.3d at p. 515 [emphasis in Berry original].) Berry also noted the Code required “no specific type of provocation.” (/bid.) Further, the Berry opinion also recognized that “evidence of infidelity by the defendant’s paramour, taunts directed to him and other conduct,” demonstrated the defendant had killed in ““wild desperation.’” (Ibid.) People v. Brooks (1986) 185 Cal.App.3d 687, 694, noted that section 192 requires “no specific type ofprovocation,” and whether provocationexists is a question of fact for the jury. In Brooks, the defendant killed Todd after being told Todd was responsible for killing the defendant’s brother. Attrial, the defendant argued that learning of his brother’s murder was provocation sufficient to reduce murder to manslaughter. The trial court declined to instruct on voluntary manslaughter. Brooks held: A recognition that murder of a family member is legally adequate provocation for voluntary manslaughter would be consistent with previous decisions in this jurisdiction. Other cases have recognized the disclosure of infidelity of a wife (People v. Berry, supra, 18 Cal.3d 509), a quarrel over the performanceofa car mechanic between a father and son (People v. Edgmon (1968) 267 Cal.App.2d 759), and even verbal provocation (People v. Berry, supra, 18 Cal.3d at p. 515), as legally adequate provocation. We cannot say that verbal provocation, blowsstruckin a quarrel, or disclosure ofinfidelity are legally more provocative than the murder of a family member. 358 Since appellant did not actually see Todd murderhisbrother, the provocation for killing Todd might more properly be characterized as hearing from bystanders that Toddmurdered his brother. A sudden disclosure of an event, where the event is recognized by the law as adequate, maybethe equivalent ofthe event itself, even if the disclosure is untrue. (State v. Yanz (1901) 74 Conn. 177 [50 A. 37].) In [a] California case, citing Yanz, the court explained that where there is a reasonable belief in the information disclosed, the provocation is adequate. (People v. Logan (1917) 175 Cal. 45, 49 {].) (Id. at pp. 693-694.) Latercase authorities have continuedto recognize that words alone may constitute provocation. For example, when a wife who has been carrying on an affair says to her husband, in reference to her lover, “you go suck his penis,” that can be sufficient provocation to justify reducing the husband’s subsequent killing of the lover to voluntary manslaughter. (People v. Le (2007) 158 Cal.App.4th 516, 521, 526.) More recently, and in the gang context, this Court has heldit is objectively, “reasonably foreseeable”that a gang challenge will result in the use of homicidal force. (People v. Medina (2009) 46 Cal.4th 913, 921.) Equally foreseeableis that a white personcalling a black person “nigger” mayresult in the use of homicidalforce. Other jurisdictions have recognized that blacks suffering from various forms of pervasive racial prejudice may be particularly susceptible to provocation, and both the psychiatric and legal communities recognizethe condition of Black Rage. The summary to this issue above noted use ofthe 359 29 66 word “nigger” “could well lead to injury . . . cost a person his reputation,his job, or even his life.” (Kennedy, Lecture: The David C. Baum Lecture: “Nigger!” As a Problem in the Law (2001) 2001 U.IILL.Rev. 935, 937.) Black Rage as a psychological condition has been recognized since 1968. (Grier & Cobbs (1968) Black Rage.) Black Rage is “characterized by an uncontrollable rage precipitated by racism and unequal treatment.” (Goldklang, Note: Post-Traumatic Stress Disorder and Black Rage: Clinical Validity, CriminalResponsibility (Fall 1997) 5 Va.J.Soc. Pol’y & L. 213,216.) Racist provocation was recognized in American jurisprudenceas long ago as 1847 in Freeman v. The People (1947) 4 Denio 9 [1847 N.Y. LEXIS 48].) Freeman, a black youth, was wrongfully imprisonedat age 16, beaten by white jailers, and, six months after his release, murdered a white family. Freeman’s defense counsel argued that white society’s mistreatment of Freeman had made him insane. (bid; Falk, Article: Novel Theories of CriminalDefense Based Uponthe Toxicity ofthe Social Environment: Urban Psychosis, Television, Intoxication and Black Rage (March 1996) 74 N.C.L. Rev. 731, 749.) A century later in Fisher v. United States (1946) 328 U.S. 463 [66 S.Ct. 1318, 90 L_Ed.1382], the United States Supreme Court considered the case of a black defendant convicted ofmurdering a white woman. Fisher worked as a janitor in a library. A white librarian called Fisher “a black 360 nigger,” and he hit her. The woman began screaming, and Fisherkilled her to stop her screaming. (/d. at p. 479.) The Fisher majority held the effects of racial oppression did not render Fisher insane. (/d at p. 471.) In separate dissents Justices Frankfurter and Murphy each commented onthe effects of lifelong racial prejudice on mental state. Justice Frankfurter concluded the jury was improperly instructed on provocation, and reversal was required on that basis. (/d. at p. 490, dis. op. of Frankfurter, J.) He wrote, “Concededly there was no motive for the killing prior to the inciting ‘you black nigger.’ The tone in which these words were uttered evidently pulledthe triggerof[the defendant’s] emotions, and under adequate instructions the jury might have found that what these words conveyedto [the defendant’s] ears unhingedhis self-control.” (/d. at p. 485, dis. op. of Frankfurter, J.) United States v. Alexander (D.C. Cir. 1972) 471 F.2d 923, considered the defendant’s defense that racial prejudice and oppression throughouthislife caused him to react in an explosion of violence and bloodshed after a white man called him andhis friends a “nigger bastard.” (/d. at pp. 928-929.) The two defendants drew and shot revolvers leaving two white United States Marinesdead, and anotherwhite Marine and white womanseriously wounded. | (Id. at pp. 926, 928-929.) The defense was that the defendant’s life of suffering racial prejudice left him with no other meaningful choice after 361 hearing a racial slur. (/d. at p. 960 (dis. op. ofBazelon,J.).) Ina lengthy,split, per curiam decision, reflecting “the number and perplexity of the issues,”the convictions for second degree murder were affirmed.” Lest it be viewed as a southern state phenomenon, the defendantraising the racial provocation theory grew up in the Watts section ofLos Angeles. (/d. at pp. 958, 960.) In his dissent, Judge Bazelon noted that when the white Marine called the defendant a “black bastard,” the defendant had “an irresistible impulse to shoot.” (/d. at p. 957.) Two years later, the Circuit Court of Appeals for the District of Columbia again considered a case of racial provocation where the black defendant was in a poolhall fight. Later in the day, he shot a white man playing pool, and then shot another white man. (United States v. Robertson (D.C. Cir. 1974) 507 F.2d 1148, 1150.) The Court of Appeals remanded, concludingthe trial court should have received testimony in support of, and contradicting, an insanity defense since the experts could notagree. (/d. at pp. 1158-1161.) Following remand, Roberston refused to pursue an insanity defense, and was convicted of second degree murder and assault with intent to kill. Ud. at p. 1149; United States v. Robertson (D.C. 1977) 430 F.Supp. 444, 445.) 32 Three assault convictions for one defendant were vacated. 362 The foregoing case authorities and psychiatric literature confirm what common sense experience in America dictates: racial tensions remain high, and racial slurs and epithet are a sadly well traveled road to provoking violence. 2. The Instructions Failed to Explain the Relationship Between Provocation and First Degree Murder. The jury instructions given were inadequate to inform jurors of the applicable legal principles governing the case. Murderis the unlawful killing of a humanbeing “with malice aforethought.” (§ 187, subd. (a).) There are two types of malice, express and implied. (People v. Nieto Benitez (1992) 4 Cal.4th 91, 102; § 188.) Express malice is the unlawful intentto kill. (§ 188; People v. Blakeley (2000) 23 Cal.4th 82, 87.) “Malice is implied when the killing is proximately caused by an act, the natural consequences ofwhich are dangerous to life, which act was deliberately performed by a person who knows that his conduct endangers the life of another and who acts with conscious disregard for life.” (People v. Knoller (2007) 41 Cal.4th 139, 143 [internal quotation marks omitted].) The prosecution bears the burden of proving that the defendant acted with malice. (People v. Nieto Benitez, supra, 4 Cal.4th at p. 112.) Murder is of the first degree when it is “willful, deliberate, and premeditated,” as well as when a numberof other enumerated factors apply. 363 (§ 189.) Here, the prosecution proceeded on multiple theories, including that the murder was premeditated and deliberate, occurred during one of the enumerated felonies, was torture murder, or Hardy aided and abetted in the murder. (See e.g., 11RT 2358-2359 [prosecutor’s closing argument].) Ifnone of these theories applies, the offense was, at most, second-degree murder. (Cf., People v. Nieto Benitez, supra, 4 Cal.4th at p. 112.) It is unclear which theory convinced any juror beyond a reasonable doubt. It is clear that the prosecution argued premeditation and deliberation. In order to support a finding offirst degree murder based on premeditation and deliberation, “the People bear the burden of proving beyond a reasonable doubtthat the killing wasthe result of premeditation and deliberation... .” (People v. Anderson (1968) 70 Cal.2d 15, 25.) Thus, while second degree murder, or voluntary manslaughter, may be described by the presence of factors that negate malice, such as provocation,that does not make provocation an element of second degree murder, or manslaughter. Rather, whenthere is evidence of provocation, it is the prosecution that must prove beyond a reasonable doubt that the defendant did not act under the influence of one of these factors in order to convict him of murder. (See Mullaney v. Wilbur (1975) 421 U.S. 684, 704 [95 S.Ct. 1881, 44 L.Ed.2d 508]; People v. Rios (2000) 23 Cal.4th 450, 462.) 364 Unreasonable heat of passion can reduce first-degree murder to second-degree. Almost seven decades ago, in People v. Valentine, supra, 28 Cal.2d 121, this Court reversed a first-degree murder conviction for instructional errors, becausethetrial court failed to instruct thejury to consider whetherprovocation reduced the offense from first- to second-degree murder. Valentine explained that provocation insufficient to reduce the murder to manslaughter “may nevertheless raise a reasonable doubt that the defendant formed the intent to kill upon, and carried it out after, deliberation and premeditation.” (Jd. at p. 132; in accord People v. Fitzpatrick (1992) 2 Cal.App.4th 1285, 1294-1296 [defendant whois subjectively prevented from deliberating because of provocation is guilty of second-degree rather than first-degree murder, even if a reasonable person would not have been so precluded].) People v. Padilla (2002) 103 Cal.App.4th 675, explained, and applied, the “unreasonableheat ofpassion”principle. There, the defendant challenged his first-degree murder conviction because thetrial court had refused to admit evidence that he killed his cellmate while under the influence of a hallucination. (/d. at p. 679.) The Court ofAppeal in Padilla explained that although the hallucination “failed the objective test” for provocation sufficient to reduce murderto manslaughter,“nothing in the law necessarily preclude[d] 365 Padilla’s hallucination from negating deliberation and premeditation so as to reduce first degree murder to second degree murder,as thattest is subjective.” (Ibid.) Thus, the trial court committed reversible error by preventing the jury from hearing evidence on whether Padilla had killed under the influence of unreasonable butsincere heat of passion. (Id.at p. 680.) More recently, in People v. Beltran, supra, this Court explained the properanalysis for provocation focuses on “the defendant’s state ofmind, not his particular act. To be adequate, the provocation must be one that would cause an emotion so intense that an ordinary person would simply react, withoutreflection.” (People v. Beltran, supra, __Cal.4"__ [2013 Cal.Lexis 238, Slip. Op. p. 16 [italics in original].) Provocation exists when “the anger or other passion [is] so strong that the defendant’s reaction bypassed his thought process to such an extent that judgment could not and did not intervene.” (/d. at p. 17.) The use of the word “nigger” can trigger precisely this type of strong reaction that bypasses judgment. Just as in Fisher, before Sigler called Hardy and his companions 99 66.“niggers,” “there was no motive for the [offenses]” but “(t]he tone in which these words were uttered evidently pulled the trigger of [Hardy’s] emotions, and under adequate instructions the jury might have found that what these words. .. unhinged his self-control.” (Fisher v. UnitedStates, supra, 328 U.S. 366 at p. 485 (dis. op. of Frankfurter, J.).) The prosecution bore the burden of provingthe absenceofprovocation,andthe instructionsnevertoldjurorsthis. Hardy is aware that People v. Rogers (2006) 39 Cal.4th 826, held instruction on provocation was a pinpoint instruction. (/d. at p. 878.) Rogers reasoned the trial court had no sua sponte duty to give the provocation instruction, unless it was requested by counsel and supported by the evidence. However, Hardy’s argument here presents a different issue from the one in Rogers. Rogers, another capital case, discussed CALJIC No. 8.73, and held the instruction, which provided detailed instructions on how subjective provocation relates to premeditation and deliberation, was a pinpoint instruction that need not be given absent a defense request. However, the Rogers jury — unlike the jury here — was, in fact, instructed with the essential principle that a “sudden heatofpassion or other condition precluding the idea of deliberation” could reduce the charge from first degree murder to second. (People v. Rogers, supra, 39 Cal.4th 826 at pp. 866-867; see also CALJIC No. 8.20.) Accordingly,the trial court in Rogers fulfilled its duty “to instruct the jury on all general principles of law relevant to the issues raised by the evidence, whether or not the defendant makes a formal request.” (Peoplev. Blair (2005) 36 Cal.4th 686, 744.) Under the procedural background in 367 Rogers, and in view ofthe instructions the Rogers jury did receive, giving an additional provocation instruction, such as CALJIC No. 8.73, would indeed have been a pinpoint instruction, because it would have directed the jury’s attention to a specific part of the defendant’s case. Here, in contrast, the jury wasneverinstructed on the general principles of law raised by the evidence. The jury never heard the basic principle that it should consider whether subjectively experienced provocation rendered Hardy unable to deliberate, such that he might have been guilty of only second degree murder. For these reasons, Rogers doesnot controlthis issue. Additionally, Rogers does not control because the issue here is different. Hardy argues that CALJIC No.8.30failed to correctly state the law because it did not include the requirement that the prosecution prove the absence of subjective provocation beyond a reasonable doubt. In contrast, Rogers considered only whether a separate, and additional, instruction on provocation wasrequired to be given sua sponte. Cases are not authority for propositions not considered. (People v. Barragan (2004) 32 Cal.4th 236, 243.) E. The Failure to Instruct Fully on the Effect ofProvocation on Premeditation and Deliberation Was Prejudicial and Requires Reversal. When a factual circumstance like subjective provocation negates an element of the crime, such as premeditation and deliberation, federal due 368 process requires the prosecution to bear the burden ofproving the absence of that circumstance beyond a reasonable doubt. (In re Winship (1970) 397 U.S. 358 [90 S.Ct. 1068, 25 L.Ed.2d 368]; Mullaney v. Wilbur, supra, 421 U.S.at p. 704; People v. Martinez (2003) 31 Cal.4th 673, 707 (conc. & dis. opn. of Kennard, J.); United States v. Sayetsitty (9th Cir. 1997) 107 F.3d 1405, 1414; Walker v. Endell (9th Cir. 1988) 850 F.2d 470, 472.) Premeditation and deliberation are elements of first degree murder. In Apprendi v. New Jersey (2000) 530 U.S. 466 [120 S.Ct. 2348, 147 L.Ed.2d 435] Justice Thomas explained in his concurring opinion: [A] “crime” includes every fact that is by law a basis for imposing or increasing punishment(in contrast with a fact that mitigates punishment). Thus, if the legislature defines some core crime and then provides for increasing the punishment of that crime upon a finding of some aggravating fact — of whateversort, including the fact of a prior conviction — the core crime andthe aggravating fact together constitute an aggravated crime, just as much as grandlarceny is an aggravated form of petit larceny. The aggravating fact is an element of the aggravated crime. Similarly, if the legislature, rather than creating grades of crimes, has provided for setting the punishment ofa crime based on somefact. . . that fact is also an element. ... One need only look to the kind, degree, or range of punishment to which the prosecution is by law entitled for a given set of facts. Each fact necessary for that entitlementis an element. (Id. at p. 501 (conc. opn. of Thomas, J.).) Justice Kennard likewise explained in her concurring and dissenting opinion in Martinez that, “[t]he elements of a crime are ‘[t]hose constituent 369 parts of a crime which must be proved by the prosecution to sustain a conviction.’ [Citation.]” (People v. Martinez, supra, 31 Cal.4th at p. 707 (conc. & dis. opn. of Kennard, J.).) “To sustain a conviction for first-degree murder under California law, the prosecution must prove premeditation and deliberation. [Footnote omitted.] Accordingly, the absence of unreasonable heat ofpassion is an elementof first-degree murder, in the sense of being an essential component of the elements of premeditation and deliberation necessary to sustain a conviction of that offense.” ([bid.) The requirementfor the prosecutionto prove the absenceofaparticular mental state is commonplace in homicide law. (Mullaney v. Wilbur, supra, 421 U.S.at pp. 702, 704 [absence of heat of passion]; People v. Rios, supra, 23 Cal.4th 450, 454, 462 [absence of heat of passion and of imperfect-self-defense]; People v. Najera (2006) 138 Cal.App.4th 212, 227 [“absence of heat of passion is an element of murder the prosecution must prove beyond a reasonable doubt”’]; People v. Humphrey (1996) 13 Cal.4th 1073, 1082-1083 [absence ofself-defense is an element ofmurder]; Peoplev. Roe (1922) 189 Cal. 548, 560-561 [same].) California law provides that unreasonable, subjective provocation, that precludes a defendant’s deliberation, reduces first-degree murder to second-degree. (People v. Valentine, supra, 28 Cal.2d at p. 132.) A defendant whois subjectively unable 370 to deliberate because he has been provokedis guilty ofsecond-degree murder even if a reasonable person would not have been provoked under the same circumstances. (Ibid.) The foregoing authorities demonstrate that when,as here, the evidence showed provocation, then the prosecution has the burden of proving the absenceofsubjective provocation beyond a reasonable doubtin order to prove the premeditation and deliberation elements of first degree murder. When a factual circumstance, such as unreasonableheatofpassion, negates an element of the crime, such as premeditation and deliberation requiredfor first degree murder, the federal Constitution’s due process guarantee imposes upon the prosecution the burden ofproving the absence of that circumstance beyond a reasonable doubt. (Mullaney v. Wilbur, supra, 421 U.S.at p. 704.) A trial court must instruct the jury on all general principles of law relevant to the issues raised by the evidence, whether or not the defendant makes a formal request. (People v. Blair (2005) 36 Cal.4th 686, 744.) The trial court’s obligation to instruct sua sponte“includesinstruction onall ofthe elements of a charged offense ....” (People v. Rubalcava (2000) 23 Cal.4th 322, 333-334; People v. Sedeno (1974) 10 Cal.3d 703, 716.) Under the Fifth and Sixth Amendments to the United States Constitution, as applied to the states by incorporation into the Fourteenth Amendment, a criminal defendant 371 has a right to jury findings, beyond a reasonable doubt, as to all the elements of a charged crime, and to sua sponte instructions correctly defining the elements of the crime which make such a finding possible. (Estelle v. McGuire (1991) 502 U.S. 62, 69 [109 S.Ct. 2419, 105 L.Ed.2d 218]; Carella v. California (1989) 491 U.S. 263, 265 [109 S.Ct. 2419, 105 L.Ed.2d 218]; People v. Flood (1998) 18 Cal.4th 470, 491-492.) This right includes instructions on an “aspect of an element” where the facts ofthe case putthat aspect in question. (People v. Harris (1994) 9 Cal.4th 407, 425; Yates v. Evatt (1991) 500 U.S. 391 [109 S.Ct. 2419, 105 L.Ed.2d 218].) In opening statement, Hardy’s counsel conceded Hardy’s participation as an aider and abetter to many,but notall, ofthe offenses, and argued Hardy did not personally commit the offenses. (LORT 1916-1917.) In summarizing the events leadingupto the offenses, counsel focusedjurors on Sigler’s yelling the racial slur, “fuck you, niggers,” as the triggering event precipitating the incident. (1ORT 1119.) Trial evidence later showed Sigler had yelled the slur. (1ORT 2102.) The racial slur, aggressive and highly provocative, was the genesis ofthe confrontation that ended so brutally and tragically. (1ORT 2103; see also, discussion, ante.) Upon hearing Siglercall them “niggers,” Hardy and his two black companionscrossedthe street, Hardy asking, “who the fuck you calling nigger?” (1ORT 2103.) Despite this evidence, the jury was never 372 instructed on the basic, well-settled principle that even provocation that would not cause a reasonable person to act in the heat of passion can reduce the offense from first- to second-degree murderifthe defendantacted in a heat of passionat the timeofthe killing. (People v. Valentine, supra, 28 Cal.2d 121, 130-132.) As demonstrated above, the facts of this case squarely put provocation into question. There was uncontradicted evidence ofracial provocation. Therefore, the trial court failed to provide the jury with “complete and accurate instructions on all general principles of law relevant to the issues raised by the evidence.” (People v. Montiel (1993) 5 Cal.4th 877, 942.) “Under established law,instructional error relieving the prosecution of the burden ofproving beyond a reasonable doubt each elementofthe charged offense violates the defendant’s rights under both the United States and California Constitutions.” (People v. Flood (1998) 18 Cal.4th 470, 479-480; People v. Cox (2000) 23 Cal.4th 665, 676; Neder v. United States (1999) 527 U.S. 1, 18 [119 SCt 1827; 144 LEd2d 35].) Because the error in failing to instruct on the prosecution’s burden of proving the absence of unreasonable provocation violated Hardy’s rights under the federal Constitution, the standard of prejudice in Chapman vy. California (1967) 386 US. 18, 24 [87 S.Ct. 824, 17 L.Ed.2d 705], should apply. This standard requires reversal 373 unless the prosecution can establish the error was harmless beyond a reasonable doubt. (Chapman v. California, supra, 386 U.S. 18.) The error here was prejudicial because the evidence supported provocation, and required that the jury be instructed on provocation and the prosecution’s burden of proving the absence of provocation. “Provocation means ‘something that provokes, arouses, or stimulates’; provoke means‘to arouseto a feeling or action [;]’ . . . “to incite to anger.’ [Citations.]” (People v. Hernandez (2010) 183 Cal.App.4th 1327, 1334; People v. Ward (2005) 36 Cal.4th 186, 215 [“provocation . . . is the defendant’s emotionalreaction to the conduct of another, which emotion may negate a requisite mental state’’].) Sigler’s words, and their tone, were provocation sufficient to create a heat of passion response by Hardy. Underthe evidence presented by the prosecution, a reasonable juror would have concluded Hardy was provoked by Sigler’s yelling, “fuck you, niggers.” Butjurors were never instructed about the legal effect ofprovocation on first degree murder. Thefailure ofthe trial court to instruct the prosecution had to prove the absence of provocation when there was substantial evidence of provocation, requires reversal of count | and the judgment of death. 374 XV THE JUDGMENT OF DEATH, THE SPECIAL CIRCUMSTANCES FINDING THAT HARDY COMMITTED MURDERIN THE COMMISSION OF A KIDNAPPING AND A KIDNAPPING FOR RAPE, THE SECTION 667.61, SUBDIVISION (D) KIDNAPPING ALLEGATIONS TO COUNTS4, 5, 6 AND 7, AND THE JUDGMENT OF GUILT ON COUNT 3, SHOULD BE REVERSED BECAUSE THE TRIAL COURT INSTRUCTED THE JURY WITH AN ERRONEOUS DEFINITION OF ASPORTATION, IN VIOLATION OF HARDY’S RIGHT TO DUE PROCESS OF LAW UNDER THE FIFTH AND FOURTEENTH AMENDMENTS, RIGHT TO A JURY TRIAL UNDER THE SIXTH AND FOURTEENTH AMENDMENTS AND THE STATE CONSTITUTION, AND THE PROHIBITION AGAINST IMPOSITION OF CRUEL AND UNUSUAL PUNISHMENTIN THE EIGHTH AND FOURTEENTH AMENDMENTS,ANDARTICLEI, SECTION17, OFTHE CALIFORNIA CONSTITUTION. Summary of Argument. The jury found true the special circumstance allegation that Hardy committed murder in the commission of a kidnapping and a kidnapping for rape. (12RT 2528; 3CT 597.) The jury also found Hardy guilty of the crime of kidnapping for rape in count 3, and found true the kidnapping allegations to counts 4 though 7. (12RT 2529; 3CT 600.) The trial court erroneously gave multiple instructions concerning how thejury should determine the asportation element of kidnapping. The instructions required jurors to consider “the totality of the circumstances attending the movement” when determining 375 whether Hardy committed kidnapping. (See e.g., 2CT 559, 573.) This was error because the offenses were committed on December 29, 1998,prior to People v. Martinez (1999) 20 Cal.4th 225, an opinion that overruled then- controlling California law. “[B]efore Martinez ..., ‘the asportation standard [was] exclusively dependentonthe distance involved.’” (People v. Castaneda (2011) 51 Cal.4th 1292, 1319.) People v. Martinez was decided on April 8, 1999, after Hardy committed the crimes. Martinez does not apply retroactively. (People v. Castaneda, supra, 51 Cal.4th at p. 1319.) Accordingly, the jury instructions for kidnapping impermissibly incorporated the additional factors allowable onlyafter the decision in People v. Martinez. The instructions were therefore erroneous. Proper instructions would have allowed jurors to consideronly the distance Sigler was movedin determining kidnapping. The prosecutor argued the erroneous definition of asportation to the jury. The erroneous instructions were prejudicial, and therefore the judgment of guilt on count 3, the true finding to the special circumstance allegations of kidnapping and kidnapping for rape, and the kidnapping allegations to counts 4 through 7 must be reversed. The judgment of death also must be reversed. 376 B. Standard of Review. Hardy incorporates by reference the authorities cited in ArgumentVIII, ante, that require reversal when conviction was based on an improperlegal theory. Hardy also incorporates from Argument VIII the standard of review for instructionalerror. OF Summary of Charges and Instructions Involving Kidnapping. The amended information charged Hardy with murder (§ 187, subd. (a)), and alleged the special circumstance that the murder was committed during a kidnapping, and during a kidnapping for rape. (§ 190.2, subd.(a)(17)(B); 2CT 396.) The information also charged Hardy in count 3 with kidnapping for rape. (§ 209, subd. (b)(1).) Enhancements to counts 4 through 7 alleged kidnapping allegations. (§ 667.61, subds. (a) and (d).) There were no eyewitnesses, and the prosecution’s proposed sequence of events, including the kidnapping, was reconstructed from the medical examiner’s testimony, Hardy’s statements to law enforcement, and distances measured in and aroundthe place the victim’s body was found. The medical examiner’s testimony relevant to the asportation element ofkidnapping waslimited to his opinion that: (1) the sexual assaults occurred before the head injuries (1ORT 1977); and (2) some ofthe victim’s injuries were consistent with having been thrown over a fence (1ORT 1967). Hardy’s 377 statements were unclear aboutthe distance the victim was moved while alive. The evidence supported the prosecution’s theory the victim’s body was dragged after death. The fence and wall, over which the victim was taken, were about 35 feet from where the body was found. (11RT 2241, 2244.) The closest blood splatter to the body was about 12 feet away from wherethe body was found. (11RT 2249.) Portions ofthe body were covered with mulch, and the face and arms were buried. (11RT 2242.) The body was about in the middle rear of the commercial buildings. (11RT 2231.) The area where the body was found was well off Wardlow Road where the victim first encountered Hardy and his companions. (See e.g., 11RT 2231 [victim approximately 150 feet south of Wardlow Road].) Since the evidence concerning the distance ofasportation was so uncertain, the prosecutor argued other factors showedasportation. She argued that the victim was movedto an area behind closed businesses where no one could hear her (11RT 2350); that after the movement, Hardy and his companions could do anything and would think they would not be caught (11RT 2350); and that the movement increased therisk to the victim (11RT 2375). She specifically told jurors to look at the totality of the circumstances in addition to the actual distance moved. (11RT 2377.) In final summation, the prosecutor stressed the three defendants had movedthe victim to a secluded spot. (11RT 2415.) 378 Thetrial court instructed that ifjurors found Hardy guilty ofmurder in the first degree, then they had to determine if one or more of the special circumstances was true. (2CT 553.) Two of the special circumstances identified were kidnapping offenses:“Ifyou find [the] defendantin this case guilty of murder ofthe first degree, you must then determineif [one or more of] the following special circumstance[s]: [are] true or not true: robbery, kidnapping, kidnapping for rape, rape, rape by a foreign object (a wooden stake), or torture.” (2CT 553.) Thetrial court did not specifically instruct on any kidnapping offense uniqueto the special circumstances. Rather,the trial court instructed on what constituted simple kidnapping, kidnapping for rape alleged in count 3, and kidnapping as an enhancement to counts 4, 5, 6 and 7, under section 667.61, subdivision (a). With respectto the asportation element ofsimple kidnapping, the trial court instructed: A movementthat is only for a slight or trivial distance is not substantial in character. In determining whether a distance that is morthan slightortrivial is substantial in character,you should consider the totality of the circumstances attending the movement, including, but not limited to, the actual distance moved, or whether the movement [increased the risk ofharm above that which existedprior to the movement, or decreased the likelihood of detection, or increased both the danger inherent in a victim’s foreseeable attempt to escape and the attacker’s enhanced opportunity to commit additional crimes. If an associated crime is involved, the movement also must be 379 more than that which is incidental to the commission of the other crime. (2CT 559 [emphasis added]; CALJIC 9.50 (1999 Revision).) In connection with count 3 (kidnapping to commitrape), the trial court instructed on the asportation element of kidnapping as follows: 4. The movementofthe person wasfor a substantial distance, that is, a distance morethanslight, briefor trivial; and 5. The movement substantially increasedthe risk ofharm to the person moved, over and abovethat necessarily present in the crime ofrapeitself. (2CT 561 [emphasis added]; CALJIC 9.54 (1998 Revision).) In connection with the section 667.61, subdivision (a)(2) enhancement to counts 4, 5, 6, and 7, that Hardy kidnapped the victim during the commission of those offenses, the trial court instructed on the asportation element of kidnapping in exactly the same manner it had for simple kidnapping, ante. (2CT 572.) California law on the elementofasportation for kidnapping changedin 1999 when this Court issued its opinion in Martinez. California recognizes two types ofkidnapping: simple and aggravated. Section 207, subdivision(a), defines and proscribes simple kidnapping: Every person whoforcibly, or by any other meansofinstilling fear, steals or takes, or holds, detains, or arrests any person in this state, and carries the person into another country, state, or 380 county,or into anotherpart ofthe samecounty,is guilty ofkidnapping. Section 209 proscribes aggravated kidnapping, i.e., kidnapping committed for certain enumerated crimes. (People v. Martinez (1999) 20 Cal.4th 225, 229, 232.) The asportation elements for simple and aggravated kidnapping differed. People v. Daniels (1969) 71 Cal.2d 1119, 1139, adopted a two-part test for the asportation requirement for aggravated kidnapping. Daniels held aggravated kidnapping requires movementofthe victim that: (1) is not merely incidental to the commission ofthe underlying crime, and (2) increasesthe risk of harm to the victim over and above that present in the commission of the underlying crime. People v. Stanworth (1974) 11 Cal.3d 588, 600, acknowledged the asportation element for simple kidnapping differs from asportation in an aggravated kidnapping. Stanworth explained, “where only simple kidnappingis involved,it is clear that the victim’s movement cannot be evaluated in the light of a standard which makes reference to the commission of another crime.” (/d. at p. 600.) Stanworth explained distance wasthe critical factor, and “the victim’s movement must be more than slight [citation] ortrivial [citation], they must be substantial in character to constitute kidnapping under section 207.” (dd. at p. 601.) 381 Later, People v. Caudillo (1978) 21 Cal.3d 562,reaffirmed that distance was the defining aspect of asportation in a simple kidnapping. Caudillo focused solely on the distance the victim was moved, and found the distance of the asportation insufficient to prove simple kidnapping. (/d., at pp. 573- 574.) Caudillo discussed case authorities analyzing various quantified distances. In Caudillo, however, there was no measured distance of movement. Rather, the victim had been moved from her apartment to a storeroom on the same floor of the apartment building. (/d. at p. 573.) Caudillo rejected any factor other than distance in determining asportation. (id. at p. 574.) That was California law until April 1999 when this Court issued the Martinez decision. People v. Martinez, supra, 20 Cal.4th 225, overruled Caudillo, holding factors other than distance alone can establish asportation for simple kidnapping. Thetrier of fact, in determining whetherasportation has been established for simple kidnapping, can consider “such factors as whetherthat movement increased the risk of harm above that which existed prior to the asportation, decreased the likelihood of detection, and increased both the danger inherent in a victim’s foreseeable attempts to escape and the attacker’s enhanced opportunity to commit additional crimes.” (People v. Martinez, supra, 20 Cal.4th at p. 237.) Federal due process of law, however, prevented 382 the retroactive application of its decision because it was “unexpected and indefensible by reference to the law which had been expressed prior to the conductin issue.” (/d. at p. 238.) Accordingly, the movement ofthe victim in Martinez was insufficient as a matter of law to prove asportation. (/d. at p. 239, citing People v. Brown (1974) 11 Cal.3d 784, 789 and People v. Green (1980) 27 Cal.3d 1, 67.) D. The Issue Is Cognizable on Appeal. As explained in Argument XIV,ante, the issue is cognizable on appeal even though defense counsel did not object to the instruction, or request different instruction. (§ 1259; People v. Cleveland, supra, 32 Cal.4th at p. 749; People v. Hillhouse, supra, 27 Cal.4th at pp. 505-506.) E. The Trial Court’s Use of Post-Martinez Instructions Were Improper Because the Offenses Pre-dated Martinez. The offenses were committed on December 29, 1998. People v. Martinez was decided on April 8, 1999. Thus, at the time ofHardy’s offenses, the only factor jurors could consider in determining asportation, or its substantial nature, was distance. Twoofthe three instructions used to define kidnapping during the guilt phase told jurors they must consider “thetotality of the circumstances,” and then listed non-exclusive factors to consider other than distance. Twoinstructions on kidnappingtold jurors the totality of the circumstancesincluded, but were “not limited to, the actual distance moved, 383 or whether the movement[increasedthe risk ofharm abovethat which existed prior to the movement, or decreasedthelikelihood of detection, or increased both the danger inherent in a victim’s foreseeable attempt to escape and the attacker’s enhanced opportunity to commit additional crimes.” (2CT 559, 572.) The instruction for count 3 did not list multiple factors, or reference the “totality of the circumstances.” The instruction for count 3 did, however, impermissibly identify “increased risk of harm to the person moved.” Moreover, sincethejurors received three different instructions on kidnapping, none ofwhich specifiedit was to be used for the special circumstancefinding, it is impossible to conclude onthis record that jurors would not have applied the improperinstructions. Anyinstruction identifying a factor other than distance for determining asportation was improperin Hardy’s case becausethe offenses occurred before Martinez, which cannot apply retroactively. (People v. Morgan (2008) 42 Cal.4th 593, 61-611 [reversing kidnapping special circumstance because the prosecution improperly relied on the increase risk of harm to the victim from movement to prove asportation].) 384 F. The Instructions Used to Define Asportation Violated Hardy’s Federal and State Constitutional Rights. The federal due process clause forbids judicial enlargementofa statute in a mannerthat is unforeseeable by reference to the law which had been expressed prior to the conductin issue. ( Pierce v. United States (1941) 314 U.S. 306, 311 [62 S.Ct. 237, 239, 86 L.Ed. 226] [judicial enlargement of a criminal act by interpretation is at war with a fundamental concept of the commonlaw that crimes must be defined with appropriate definiteness]; U.S. Const., 5“ and 14Amends.) Bouie v. City ofColumbia (1964) 378 U.S.347, 355 [84 S.Ct. 1697, 12 L.Ed.2d 894], held the South Carolina Supreme Court decision that expanded a trespassing statute to include not leaving premises after being asked to do so constituted an unlawful judicial expansion of a criminal statute in violation of the due process clause. Similarly, People v. Martinez concluded its expansion of the kidnapping statute could not be applied retroactively because of the due process requirement of notice. (People v. Martinez, supra, 20 Cal.4th at pp. 238-239.) The California Constitution also guarantees criminal defendant’s due process of law. (Cal. Const., Article I, section 7.) The trial court’s kidnapping instruction therefore violated federal and state due process of law. The erroneous kidnapping instruction also violated Hardy’s right to a jury trial under Sixth Amendmentand Article I, section 16 of the California 385 Constitution. Ring v. Arizona (2002) 536 U.S. 584, 609 [122 S.Ct. 2428, 153 L.Ed.2d 556], held the Sixth Amendment required the jury to find the aggravating facts necessary to impose the death penalty. United Statesv. Gaudin (1995) 515 U.S. 506, 510 [115 S.Ct. 2310, 132 L.Ed.2d 444], explained, “[T]heright to have ajury make the ultimate determination ofguilt has an impressive pedigree. Blackstone described “trial by jury” as requiring “the truth ofevery accusation, whether preferred in the shape of indictment, information, or appeal, should afterwards be confirmed by the unanimous suffrage oftwelve of [the defendant’s] equals and neighbors.” United States v. Gaudin concluded the defendant’s Sixth Amendmentrightto ajury trial had been violated when the trial court, in a prosecution for making false statements, decided the issue of materiality rather than requiring the trier of fact to make that determination. Similarly, the erroneous kidnapping instruction resulted in the jury not properly finding the facts necessary to trigger Hardy’s eligibility for the death penalty. The trial court’s erroneous kidnapping instruction also violated the prohibition against imposition of cruel and unusual punishmentin the federal andstate constitutions. The prohibition against cruel and unusual punishment in the Eighth and Fourteenth Amendments requires heightenedreliability in the fact finding process during the guilt phase of a capital prosecution. (Beckv. 386 Alabama (1980) 447 U.S. 625, 632 [100 S.Ct. 2382, 65 L.Ed.2d 403].) The California Constitution, Article I, section 17, also prohibits cruel and unusual punishment, andsimilarly requires heightened reliability in the guilt phase of acapital prosecution. (People v. Ayala (2000) 23 Cal.4th 225, 262-263.) The jury determined Hardy’s eligibility for the death penalty based on an ageravating factor found true because of instructional error. The jury also considered this aggravating factor in assessing whether the death penalty should be imposed. Hence, Hardy was foundeligible for the death penalty, and giventhat sentence,in violation of the Eighth Amendmentand ArticleI, section 17 of the California Constitution. G. The Error Was Prejudicial. The erroneous kidnapping instruction violated Hardy’s federal constitutional rights. Accordingly, the true finding to the kidnapping special circumstances, the judgment of guilt on count 3, and the kidnapping allegations to counts 4 through 7 must be reversed unless the error was harmless beyond a reasonable doubt. (Chapmanv. California (1967) 386 U.S. 18, 24 [87 S.Ct. 824, 17 L.Ed.2d 705].) The instructional error was not harmless beyond a reasonable doubt. The Chapmantest is whether it appears “beyond a reasonable doubt that the error complained of did not contributeto the verdict obtained.” (Yates v. Evatt (1991) 500 U.S. 391, 403 [111 S.Ct. 387 1884, 114 L.Ed.2d 432], quoting Chapman v. California, supra, 386 U.S.at p. 24.) “To say that an error did not contribute to the verdictis, rather, to find that error unimportant in relation to everything else the jury considered on the issue in question, as revealed in the record.” (Yates v. Evatt, supra, 500 U.S. at p. 403.) The jurors were not told they could consider only the distance in determining ifasportationsufficient for kidnapping occurred. The information concerning distances was somewhat vague. Thestarting point of the asportation was established only by Hardy’s multiple statements, none of which wasclear on this point. The prosecution theory appeared to be based on a speculative distance beginning at aroundthe place the chain link fence was bent and ending where the body was discovered. However, the evidence did not definitively identify any starting point for movement. Similarly, the forensic evidence showed the victim was beaten, dragged andleft. (11RT 2249.) Portions of the body were covered by mulch. The face and arms were buried. (1IRT 2242.) The victim died from head wounds, which were suffered at the end of the beating and would have beenrapidly fatal. (ORT 1976- 1977.) Forensic evidence supported the conclusion the victim was movedafter being beaten, when she mostlikely was dead, and such movement 388 could not have beenattributable to asportation during kidnapping. In sum,the evidence did not establish a specific distance of asportation. Oneofthe prosecution’s theories was the original criminal intent was robbery. The prosecutor argued Hardy and his companions were going to rob the victim, then discovered she had nothing except $6 worth of food stamps. (11RT 2356.) The prosecution’s theory was this angered the assailants who then threw her over the fence, and decided to rape her out of public view. (11RT 2356.) Under the prosecution’s own theory, some of the victim’s movement- - at least to the fence or wall — could have beenattributable to her avoiding contact with her robbers, not to any kidnapping. The prosecutor’s arguments also focused jurors’ attention on the improper, pre-Martinez factors other than actual distance. This was because the prosecution’s evidence failed to show any specific distance with certainty beyond a reasonable doubt. The prosecutor argued the victim was moved: (1) from the sidewalk to behind closed business (11RT 2350); (2) to where no one could hear her scream (11RT 2350); and (3) to where Hardy and his companions could do anything and not get caught. (11RT 2350). The prosecutor specifically, and improperly, told jurors to look at“the totality of the circumstances”in additionto the actual distance moved. (11RT 2377.) In final summation, the prosecutor argued the victim had been moved to a 389 “secluded spot.” (11RT 2415.) These arguments exacerbated the erroneous instructionson asportation, and demonstrate the error was notharmless beyond a reasonable doubt. People v. Morgan (2008) 42 Cal.4th 593, requires reversal of the kidnapping special circumstances, count 3, and the kidnapping allegations to counts 4 through 7. In People v. Morgan, the defendant draggedthe victim out of a bar and murdered her. The victim’s body was found approximately 245 feet from the bar. The prosecutor argued the defendant had kidnapped the victim based both on the distance he movedherandtheincreased risk ofharm as a result of the movement. Oneofthe prosecutor’s theories was the victim had been movedforcibly a distance ofaslittle as 90 feet. This Court notedits decision in People v. Martinez, which expanded the factors the trier of fact could consider to prove simple kidnappingto include an increase in therisk of harm to the victim. (People v. Morgan, supra, 42 Cal.4th at p. 610.) This Court concluded the prosecutor’s closing argument improperly relied on the increased risk of harm to the victim to prove simple kidnapping because the crime occurred before People v. Martinez was decided. (People v. Morgan, supra, 42 Cal.4th at p. 611.) This Court also concluded the argument required reversal of the kidnapping charged and special circumstance because a distance of 90 feet was inadequate as a matter of law to prove a simple 390 kidnapping under the case law applicable prior to People v. Martinez. (Id., at pp. 611-612.) Asin People v. Morgan,the prosecutorin this case extensively argued the increasedrisk of harm to the victim, and thetotality of the circumstances relating to the movement. (11RT 2350, 2375, 2377, 2415.) The jury instructions also erroneously incorporated the increased risk of harm and totality of the circumstances theories. (2CT 559, 561, 573.) The kidnapping special circumstancesallegation was submitted to the jury based on an inadequate legal theory. It is impossible for this Court to determine whether the jury found the kidnapping special circumstance allegations or the kidnapping allegations to counts 4 through 7 true, or returned a guilty verdict on count 3 based on an adequate legal theory. (People v. Morgan, supra, 42 Cal.4th at p. 613 [reversing the kidnapping conviction and true finding to the kidnapping special circumstanceallegation because Court could not determineifthe guilty verdict rested on an adequate legal theory].) Thetrue findingsto the kidnapping special circumstanceallegations, the true findings to the kidnapping allegations to counts 4 through 7, and thejudgment of guilt on count 3 must therefore be reversed. 39] H. The Judgment of Death must Be Reversed. For the reasons set forth in Argument XII, ante, and incorporated by reference, reversal of the kidnapping special circumstances requires reversal of the judgment of death. (Brown v. Sanders, supra, 546 U.S. 212.) The kidnapping special circumstances in this case applied a prejudicial label — kidnapping — to irrelevant conduct that should not have impacted whetherthe jury chose to sentence Hardy to death. (/d. at p. 224.) Here, the two kidnapping special circumstances foundtrue bythejury were elements of the crime of capital murder because those findings made Hardyeligible for the death penalty. (Blakely, supra, 542 U.S.at p. 328 [dis. opn. of Breyer, J.].) Reversal of any one ofthe special circumstances means the jury did not reach unanimous agreement, within the meaning ofthe Sixth and Fourteenth Amendments, about how Hardy committed the crime, or how he should be punished. The jury’s belief that Hardy kidnaped the victim was especially prejudicial. The kidnapping wasso closely interconnected to the other special circumstances that the jury’s consideration of all the circumstances necessarily would have included kidnapping. For the reasons above, the judgment of death must be reversed. 392 XVI THE JUDGMENT OF DEATH, THE SPECIAL CIRCUMSTANCE FINDING THAT HARDY COMMITTED MURDER IN THE COMMISSION OF RAPE WITH A FOREIGN OBJECT, AND THE JUDGMENTS OF GUILT ON ALL COUNTS SHOULD BE REVERSED BECAUSE THE TRIAL COURT IMPERMISSIBLY FAVORED THE PROSECUTION BY INSTRUCTING 35 TIMES USING THE PROSECUTION’S UNDULY PREJUDICIAL CHARACTERIZATION OFTHE FOREIGN OBJECT, IN VIOLATION OF HARDY’S RIGHT TO DUE PROCESS OF LAW UNDER THE FIFTH AND FOURTEENTH AMENDMENTS, RIGHT TO A JURY TRIAL UNDER THE SIXTH AND FOURTEENTH AMENDMENTS AND THE STATE CONSTITUTION,ANDTHE PROHIBITION AGAINST IMPOSITION OF CRUEL AND UNUSUAL PUNISHMENTIN THE EIGHTH AND FOURTEENTH AMENDMENTS,ANDARTICLEI, SECTION 17, OFTHE CALIFORNIA CONSTITUTION. A. Summary of Argument. The operative charging documentidentified the weapon used in the offenses only once, in the personal use enhancementallegation. (§ 12022, subd. (b)(1); 2CT 402.) The weapon wasdescribed as a “stake/stick.” (2CT 402.) There were two sources of evidence about the type of weapon used: Hardy’s statements and the medical examiner. Hardy repeatedly used one word to describe the weapon:stick. (See e.g., [ORT 2148-2151, 2189-2191.) The deputy medical examiner described the victim’s injuries as being consistent with the use of a stick, and testified a wood splinter was removed 393 from the victim internally. (LORT 1949, 1951-1952, 1954-1955, 1974-1975.) Thestick used was never found. Instead, the prosecution introduced Exhibits 3 A, B, and C, portions of three road stakes of the type being used in the Caltrans work ongoing in the area. (1ORT 2027.) The deputy medical examinertestified the victim’s injuries were consistent with those exhibits. (1ORT 1934.) However, the exhibits were not the weapon used. Thedetective who gathered the stake had simply picked up a random stake. (11RT 2251.) The detective did not believe it was the weapon used, and there was no evidenceto the effect. (11RT 2251.) The stake exhibit was nothing more, or less, than similar to the weapon that could have been used. It was just for demonstration, but was not the instrumentused in the crime. (11RT 2251.) Thus, began the prosecution’s transmutation ofa stick into a stake. Hardy’s only description ofthe stick used was an estimate oftwo ofthe three dimensions. He describedthe stick as about 36 inches long and an inch and a half wide. (11RT 2189.) Conceptually, the word “stake” is far more offensive and brutal than the word “stick.” Yet, the trial court incorporated the prosecutor’s word “stake” into the jury instructions 35 times. Doing so impermissibly favored the prosecution and prejudiced Hardy. (People v. Moore (1954) 43 Cal.2d 517, 526-527 [“There should be absolute impartiality as between the People and the defendant in the matter of instructions”]; in 394 accord Reagan v. United States (1895) 157 U.S 301, 310 [15 S.Ct. 610, 39 L.Ed 709].) These instructions gave an unfair advantage to the prosecution and violated the balance required by United States Supreme Court precedent and due process. (Wardius v. Oregon (1973) 412 U.S. 470, 473 fn. 6 [93 S.Ct. 2208, 37 L.Ed.2d 82] [‘state trial rules which provide nonreciprocal benefits to the State when the lack ofreciprocity interferes with the defendant’s ability to securea fair trial” violate the defendant’s due process rights]; U.S. Const. 14th Amendment.) B. Standard of Review. Errors in jury instructions are questions of law which are reviewed de novo. (People v. Guiuan, supra, 18 Cal.4th at p. 569.) The standard is discussed more fully in Argument VIII, ante, and that discussion is incorporated fully by reference. C. The Impermissibly Prejudicial Pinpoint Instruction Favored the Prosecution. The weaponused against the victim was not introduced as evidence. The only evidence from a percipient witness who actually saw the weapon | came from Hardy, who describedit as a stick. Instead of omitting reference to the nature of the weapon by using a non-charged description, such as “wooden object,”or using the less brutal word “stick,” the instructionsreferred to the weapon 35 timesas a “stake.” 395 The instruction on natural and probable consequences used the word stake 11 times. (2CT 543-544.) The instruction defining murder used the word stake four times. (2CT 545.) The instruction on first degree felony murder used the word stake four times. (2CT 550.) The instruction onfirst degree felony murder, aider and abettor liability, used the word stake four times. (2CT 552.) The introductory instruction on special circumstances used the word stake twice. (2CT 553.) The instruction on special circumstances used the word stake twice. (2CT 555.) The instruction on unlawful penetration by a foreign object, acting in concert, used the word stake three times. (2CT 564-565.) Theinstruction on unlawful penetration by a foreign objectby force or threats used the wordstake five times. (2CT 566-567.) The instruction on the personal use of a deadly weaponused the wordstaketwice. (2CT 570.) The repeated use of the word “stake” was like a drumbeat of prejudice.** Byway of example, CALJIC No.8.21 consisted of only two paragraphs, in which the word stake was used fourtimes: The unlawful killing of a human being, whetherintentional, unintentional or accidental, which occurs [during the commission of any of the following crimes: robbery, kidnap for rape, rape in concert, sexual penetration by a foreign object (a wooden stake) in concert, sexual penetration by a foreign object (a woodenstake), or torture, is murder of the first degree when the perpetrator had the specific intent to commit that crime. 396 The longstanding law is well settled that jury instructions should be neutral statements of the law and avoid singling any particular piece of evidence for scrutiny by the jury. In People v. McNamara (1892) 94 Cal. 509, 513, the Court disapproved of “the commonpractice [of] select[ing] certain material facts, or those which are deemed to be material, and endeavoring to force the court to indicate an opinion favorable to the defendantas to the effect of such facts, by incorporating them into instructions containing a correct principle of law.” Morerecently, People v. Michaels (2002) 28 Cal.4th 486, 539, held that instruction on specific evidence is improper, and should not be used because it is impermissibly argumentative. In Michaels, the defendant requested a special instruction that discussed specific evidence in the case. The defendant had requested instruction on the application of section 190.3, factor (k). The requested instruction would have toldjurors to consider: whetherthe defendant had been emotionally impacted his father’s sexual abuse of defendant’s sister, Thespecific intent to commit any of the following crimes: robbery, kidnap for rape, rape in concert, sexual penetration by a foreign object (a wooden stake) in concert, sexual penetration by a foreign object (a woodenstake), or torture and the commission of any such crime must be proved beyond _ areasonable doubt (2CT 550 [emphases added] [misplaced bracketin first paragraph appears in the original written instructions].) 397 his mother’s rape, his sister’s rape, whether defendant had been “motivationally impacted”by other his victim’s sexual and physical abuse of her daughter, and whether defendant was impaired as result of his overall psychological condition. (/d. at p. 538.) Thetrial court refusedthe instruction, but did instruct about the defendant’s overall psychological condition. (Jbid.) This Court concludedthetrial court’s ruling was correct. Michaels explained the instruction improperly assumed facts that were not necessarily true. (/d. at p. 539.) Michaels cited with approvalthis Court’s earlier decision in People v. Earp (1999) 20 Cal.4th 826, 886, again upholdingthe trial court’s refusal to give a defense pinpoint instruction becausethe instruction invited the jury to “draw inferences favorable to one of the parties from specified items of evidence”and, therefore, was “argumentative.” In short, “[a]n argumentative instruction is one which is “of such a character asto invite thejury to draw inferences favorable to oneofthe parties from specified items of evidence.” (People v. Sanders (1995) 11 Cal.4th 475, 558.) The trial court’s use of instructions that incorporated the word “stake” 35 times was the functional equivalent of an impermissible prosecution pinpoint instruction, and was improperly argumentative. As this Court long ago instructed, “[t]here should be absolute impartiality as between the People and the defendantin the matterofinstructions ....” (People v. Moore, supra, 398 43 Cal.2d at pp. 526-527; see also Reagan v. United States, supra, 157 U.S.at p. 310.) D. The Prejudicial Instructions Deprived Hardy of His State and Federal Constitutional Rights to a Trial by Jury. The Sixth Amendment (applied to the States through the 14th Amendment) guarantees the right to trial by jury. A violation of the Sixth Amendment occurs when improperinstruction deprives a criminal defendant ofthe right to ajury determinationofa factual issue guaranteed bytheright to trial. For example, the failure to instruct on an element of the offense, or an instruction directing the jury to find an element against the defendant, violates Sixth Amendment. (See Fiore v. White (2001) 531 U.S. 225, 228-229 [121 S.Ct. 712, 148 L.Ed.2d 629]; Carella v. California (1989) 491 U.S. 263, 265-266 [109 S.Ct. 2419, 105 L.Ed.2d 218]; People v. Figueroa (1986) 41 Cal.3d714, 725.) The sameconstitutional violation occurs in situations where the jury is not given an opportunity to decide a relevant factual question. (People v. Figueroa, supra, 41 Cal.3d at p. 724; UnitedStates v. Voss (8th Cir. 1986) 787 F.2d 393, 398.) Similarly, instructions that lessen the prosecution’s burden of proof (or shift that burden to the defendant) violate the Sixth Amendmentrightto trial by jury and due process. (Yates v. Evatt (1991) 500 U.S. 391 [111 S.Ct. 1884, 114 L.Ed.2d 432, 446-450].) 399 The instructions adopting the prosecution’s theory ofthe caseby using the word stake 35 times were tantamountto instructions that directed verdicts against Hardy. The impermissible directing of a verdict or finding “includes perforce situations in which the judge’s instructionsfall short of directing a verdict but which nevertheless have the effect ofso doing by eliminating other relevant factual considerations if the jury finds onefact to be true.” (People v. Figueroa, supra, 41 Cal.3d at p. 724; UnitedStates. v. Voss, supra, 787 F.2d 393, 398 [“When the jury is not given an opportunity to decide a relevant factual question,”the defendant is deprivedofhis right to a jury trial]; United States. v. Rockwell (3rd Cir. 1986) 781 F.2d 985, 991 [instructions that “improperly invadedthe provinceofthejury to determine the facts . . [were] sufficiently misleading to deprive [defendant] ofa fair trial”’].) E. The Instructional Error Requires Reversal. Vladimir Lenin famously said thata lie told often enough becomesthe truth. More to the pointin this situation, is a statement made often enough, whether or not true, becomes the truth. That was the effect of the jury instructions repeating the word stake 35 times. The crimes were unquestionablybrutal. Even so, the instructions recharacterizing the weapon- -a weapon that had never been found- - as a stake, not a stick, as Hardy had describedit, was an improperpinpoint instruction that favored the prosecution. 400 The multiple repetition of the word stake in the instructions conjured even moreheinous crimes and a morebrutalordealfor the Sigler. The instructions that repeated the prosecutor’s terminology, without any basis in the evidence for doing so, served more as argumentthan instructionin this regard. As such, the instructions impermissibly drew the jury’s attention to a specific piece of demonstrative evidence, that was not the actual weapon used, and likely bore little resemblance to it, and strongly favored the prosecution by doing so. People v. Lucero (2000) 23 Cal.4th 692, 729-731, found a proposed jury instruction in a capital case that would have identified particular types of evidence (deprived childhood, military service, fatherhood, good behavior in prison) improperly argumentative. That is because the instruction would have impermissibly invited jurors to draw inferences favorable to the defendant from specified evidence. The same impermissible effect was accomplished by the jury instructions used in Hardy’s trial that incorporated the word “stake” 35 times. Significantly, the “stake” was purely a prosecution invention. It was not even based on the actual weapon used. Hardy, the only witness to the events, described the instrumentas a stick. As this Court recognized,the evil of an instruction that focuses on evidence, not theory, is that it is an impermissible judicial comment on the evidence, and the case, that 401 masqueradesas a neutral statement of the law. (People v. (1988) 45 Cal.3d 1126, 1136-1137.) The instructions were clearly written in a way that improperly argued the prosecution’s view ofthe evidence underthe guise of jury instructions. The instructions required jurors to consider specific prosecution evidence in determining issues of guilt or innocencein violation of Hardy’s Fifth, Sixth, Eighth, and Fourteenth Amendmentrights to a jury trial, a reliable determination of guilt, and due process. By doing so, the instructions impermissibly reduced the prosecution’s burden ofproof. The error was not harmless beyond a reasonable doubt. (Yates v. Evatt (1991) 500 U.S. 391, 403 [111 S.Ct. 1884, 114 L.Ed.2d 432]; Chapman vy. California, supra, 386 U.S. at p. 24.) The repetitive use of the word “stake” in instructions that were supposedto be neutral statements of law cannot be considered “unimportantin relation to everything else the jury considered . ..” (Yates v. Evatt, supra, 500 U.S.at p. 403.) These instructions permeated nearly every finding offact the jury made andthereby infected the entire guilt phase with the prosecution’s argument. Accordingly, the convictions and the judgment of death should be reversed. 402 PENALTY PHASE XVII THE JUDGEMENTOFDEATHSHOULDBEREVERSED BECAUSE, OVER DEFENSE OBJECTION, THE TRIAL COURTADMITTED IRRELEVANTNON-STATUTORY EVIDENCE IN AGGRAVATION, AND THEREBY VIOLATED HARDY’S FIFTH, SIXTH, EIGHTH AND FOURTEENTH AMENDMENT RIGHTS TO DUE PROCESS, A FAIR TRIAL, AND A REASONABLE DETERMINATION OF PENALTY. A. Summary of Argument. Underthe guise of “rebuttal,” the prosecutor introduced evidence:(1) Hardy participated in “jumping in” a gang memberearlier in the night that Sigler was murdered; and (2) after the murder had a verbal argument about gangs while riding the bus. A gang expert explained that“jumping in”wasthe initiation ofanew memberinto a gang. The new memberwasusually beaten for one to three minutes. (14RT 3084-3085.) Defense counsel objectedto the evidence, but was overruled. Thetrial court concluded Hardy’s participation in a “jumping in” was criminal activity and admissible. (13RT 2896.) The prosecutor admitted the evidence was“not rebuttal per se.” (13RT 2887.) She wanted jurors to believe Hardy had a propensity for violence. She convinced the judge, and apparently convincedthejurors too. However, evidenceofthe “jumping in” was improperrebuttal, not criminalactivity, irrelevant, and was nothing more than inflammatory evidence that played upon the general 403 public’s fear of criminal street gangs in a case that was not gang related. The evidence also was improper undersection 190.3, subdivision (b). Because of the highly prejudicial nature of gang evidence (People v. Gurule (2002) 28 Cal.4th 557, 653; People v. Cox (1991) 53 Cal.3d 618, 660; cf., Old Chiefv. United States (1997) 519 U.S. 172 [117 S.Ct. 644, 136 L.Ed.2d 574], the improper gang evidence deprived Hardy ofhis rights under the Fifth, Sixth, Eighth and Fourteenth Amendments requiring reversal of the judgment of death. B. Relevant Procedural Background. During the defense penalty case, the prosecutor informed defense counsel that she plannedto introduce evidence of gang activity in rebuttal. Defense counsel objected: MR. YANES: Your Honor, yesterday Ms. Locke-Noble indicated that she was planning on calling rebuttal witnesses, and shetold me offthe record that she was talking about putting on some evidence ofsome gangactivity. And I would objectto that as not being rebuttal, because it doesn’t rebut anything. We didn’t put on evidence that he wasnotin a gang or he wasn’t a gang member;in fact, we put on evidencethat he was. If that’s what the rebuttal is, if that’s what the evidenceis, I don’t think that’s rebuttal. THE COURT: Wasthat part ofyour planned rebuttal? MS. LOCKE-NOBLE:Part ofmy planned rebuttal was to but [sic] on evidence of gang activity, and that evidence is that before he committed the crime - - and I mean the same day, a 404 few hours before, or less - - the defendant was involved in jumping someoneelse into his gang. I think that showshis violent tendencies, his violent activities. I think it also shows that he is not this wholesome, loving person that the defenseis trying to portray. I think that goesto the circumstancesofthe crime, which I could not have brought in during the guilt phase, and I think it’s appropriate to bring in at this phase, although I could not yet bring it in, until after the defense presented some of their evidence. And yesterday that’s what happened. Andin orderto for me to evenbringthat in, I had to wait for the defendantto do that, I couldn’t just bring it up on my own. THE COURT: Whatdoesit rebut? MS. LOCKE-NOBLE: It’s not rebuttal, per se, in the strict technical sense, but it goes to the circumstance in aggravation that he was involved in gangactivity prior to the murder, within hours of the murder itself. And that activity was involving violence, and he continuedthat activity through the time that he committed this murder. And then subsequent to the murder, whenhegot on the bus, he also, again, was engaged in gang activity and had a verbal confrontation with a rival gang member. So all of that shows the picture that he is not this wholesome, loving person. Andthere is case law that says that the People can presentthis type of evidence to show this, but we can’t presentit until after the defense puts this in issue. THE COURT: I’m not sure that the defense has actually presented a picture of a wholesome, loving individual. MS. LOCKE-NOBLE: Well, they put on the board the other day that heis a loving father, that he was involved in church activities, church plays, studied the bible, all that kind ofstuff. 405 THE COURT:Right. MS. LOCKE-NOBLE: And that’s what I’m referring to. THE COURT: Butcertainly there are gang members whoare loving fathers, and who go to church, and whoread and study the bible. So I think being a gang member or even being involved in gangactivity is contrary to being a loving father and going to church. MS. LOCKE-NOBLE: Well, additionally, there was also evidence presented that he’s a follower and not a leader. Well, in this particular case he’s the onethat initiated the jumping in of this person, he’s the one that madethe phonecall to another gang memberandsaid, “hey, we just jumped him in and we’re going to call him Playboy.” So that showsthat he wasa leader. It also showsthat he was not acting under the dominion and control of another, but wasinitiating all of this activity. THE COURT: Well - - MS. LOCKE-NOBLE:I’m lookingfor a case. THE COURT:Inthe presentation ofthe evidence yesterday, the only item that I could think ofthat would lenditselfto rebuttal, wasthe follower. MS. LOCKE-NOBLE: Okay. Well - - THE COURT:So - MR. YANES: Well, as to that, unless counsel has some- - first of all, let me back up. First of all, counsel could have broughtthis in as an aggravating factor, him being a gang member,in her case in aggravation, at the beginning of her case in aggravation, and that’s when she should have doneit. There was no order, no issue about that comingin, in the penalty phase. There was only a matterofthat 406 not coming in, in the guilt phase. So counsel should have done that, if this is what she wanted to do as an aggravating factor in her casein chief in the penalty phase. So I think the opportunity is lost. And, in fact, we came out andsaid he is a gang member,in our part of the case. There was nothing, certainly, to rebut. Now also, unless counsel has some different information that I have about this jumpingin is that after they left Mr. Gmur’s house, and after they’d been drinking, Pearson comes back to Mr. Gmutr’s house and askedifthey could use his back room tojump in Chris. So that’s not my client asking to dothat, it’s Pearson. Hesays no. Hesaid they all left and then he doesn’t see what happens. And then he says about 20 minutes later, they come back and myclient asked to use the telephone, and he hears him talking on the phone to a gang member named Capone. Thisis Mr. Gmuroverhearingthis, you know,this conversation, while myclientis using the phone, allegedly. And he hears myclient say, “Chris is cool. Put him on.” Andthey said, “we’re going to call Chris ‘Playboy.’” Andthat’s it. Hesays - - Gmursays he doesn’t- - that this person, Chris, did not have any obvious injuries or anything unusual about his clothing when they came back in, to evidence any kind of violence having been done to him. Andthenat that point they left Mr. Gmur’s house. So there is no - - Mr. Gmurdid not see any violence. There is nothing saying that my client took any kind of leadershiprole, other than making a phonecall, telling somebody something. That goes to the weight of the evidenceitself. And soclearly that evidence does not prove what counsel wants to prove and, therefore it should not be admitted. But even before that, this should have been put in, in the People’s case in chief, in the penalty phase. THE COURT: Miss Locke-Noble. 407 MS. LOCKE-NOBLE:Well, the People cannotput in evidence of bad character until the defense puts in evidence of good character. The case of People versus Fierro, F-I-E-R-R, 1 Cal.4th 173, specifically addresses that issue. Andin that particular case the prosecutor attempted to cross examine the defense witnesses, the defendant’s mother, and I believe family friends concerning his background with regards to gang activity. There were objections to that. The court allowed the cross-examination andthe prosecutor indicated that he was prepared to have several detectives from the police department to comein andtestify that the defendant was,in fact, a memberofa street gang. The court indicatedthat once the defense has presented evidence of circumstances admissible under factor k, which is what we have in this situation, prosecution rebuttal evidence would be admissible as tending to disprove any disputed fact that is of consequenceto the determination ofthe action. “A defendant who introduces good character evidence widens the scope of the bad character evidence that may be introduced in rebuttal. The theory for permitting such rebuttal evidence and argument is not that it proves a statutory aggravating factor, but that it underminesthe defendant’s claim that his good characterweighs in favor of mercy. Accordingly, the prosecutor, when making such a rebuttal effort is not bound by the aggravating factors or by his statutory pretrial notice of aggravating evidence.” In this particular situation that’s what we have. In People versus Fierro the court further explained that the defendant offered substantial evidence and argumentthat he was akind, loving contributive memberofhis community, regarded with affection by members and family. Once he placed his general character in issue, the prosecutor was entitled to rebut 408 this evidence or argument suggesting a more balancedpicture of his personality. That’s what the People intend on doing with this evidence that we want to present. The witness that they want to precludeis Monte Gmur, again, concerning the issue ofjumping in a gang memberjust right before he committed this murder, and then having the bus driver of the bus that he was ontestify to the incident that occurred on the bus and, of course, his own statements with respect to that, that he made to the police. Also, we have a gang expert to testify what “jumping in” means, and whatthey do when theyjump in somebody, and whatcolors means to gang members. And those are some of the witnesses that the People intend onpresentingin rebuttal, specifically with respect to the gang issue. And the People would also cite the case of People versus Jennings, at 46 Cal.3rd 963, starting at page 981, which also indicates that the People have aright to present a more balanced picture ofthe defendant’s personality. Butwe can’t do that until after that’s put into evidence, and it wasn’t put into evidence until the defendant put on his case in penalty. I couldn’t present that. That would have been misconductfor meto do so,to present that in my case in chief, in the penalty portion ofthis trial. That would have been grounds, probably, for a mistrial. So I had to wait until counsel put thatin issue. It’s now been put in issue and will also be put in issue by the next witness he intends oncalling. (13RT 2886-2893.) Defense counsel pointed out that if the prosecution had evidence of Hardy’s involvement in a violent “jumping in,” that could have been introduced. But there was no evidence whatsoeverthat this “jumping in” was violent. What the prosecutor proposed wasthe introduction of inadmissible 409 bad acts for the purpose ofinjecting the specter of criminalstreet gangs into a trial where it had no place. Counsel pointed out defense evidence showed Hardy was a gang member, and did not deny it. Counsel argued there was nothing to rebut. (13RT 2894.) Defense counsel wascorrect. The prosecution introduced evidence that Hardy participated in a gang “jumping in” at Gmur’s house before the charged offenses, and was involved in a gang-related, verbal argument on a busafter the offenses. This gang evidence sandwiched the charged offenses, and suggested a saturation into gang life that was an inaccurate, inflammatory, and unduly prejudicial portrayal. The prosecution called three rebuttal witnesses to present gang testimony: Monte Gmur, Brian McMahon andTerri Aitken. Gmurtestified Hardy, Pearson and Armstrong were at Gmur’s home on December 29, 1998. (14RT 3036.) Gmur heard Pearson and Hardy debating, including Hardy’s making the comment, “you ask him.” (14RT 3037.) Then Pearson askedto use one ofGmur’s room, saying they wanted to put Chris on the block to jump him in. Gmur refused. About 20 minutes later, Hardy, Pearson, and Armstrong left with Chris. (14RT 3042.) Later in the evening, Hardy used Gmur’stelephone,and called “Capone.” Hardysaid they hadjust put Chris on, he wascool, and he was “Playboy.” Thenall four left. (14RT 3043.) 410 Terri Aitken, an MTA busdriver testified. He drove route 60 from Long Beach to downtown Los Angeles on December 29, 1998. He stopped near Wardlow Road and Long Beach Boulevard around 12:30 or 2:00 a.m. (14RT 3048.) He picked up three, black male “gangsters” at Willow, not Wardlow. Thefirst one argued overthe fare. Aitken told the manto pay, and reachedfor the phone. Then,the other twotold the man to pay. (14RT 2049.) Aitken testified the three men argued among themselves about Crips and Bloods. (14RT 3051.) All three exited the bus at Florence. (14RT 2049.) Detective Brian McMahontestified differently from the bus driver. McMahon had interviewed Aitken on January 5, 1999. Aitken reported to McMahonthat three black males, who had been drinking, had a dispute with a fourth black male about gangs. (14RT 3053, 3056.) Aitken was unable to identify any of the males from photographs. (14RT 3056.) McMahonalso questioned Hardy about the incident on the bus. Hardy told McMahonthe dispute was over Crips, Bloods, and gang colors. (14RT 3054.) OF The Gang Related Evidence Was Improper Character Evidence and Improper Rebuttal. The prosecutor articulated multiple reasons for admitting the gang 66.evidence. Herfirst reason was to show Hardy’s “violent tendencies,” and “his violent activities,” and also to show “heis not this wholesome,loving person.” (13RT 2887.) The court rejected this approach, asking, “What does it rebut?” 4ll and concluding the defense had not “presented a picture of a wholesome, loving individual.” (13RT 2887, 2888.) The court noted the only thing to rebut was the defense portrayal of Hardy as a follower, not a leader. (13RT 2889.) The prosecutor’s second reason for admitting the gang evidence was to show Hardy’s bad character. (13RT 2891-2895.) However, the defense also never attempted to portray Hardy as havingstellar or even good character. Defense counsel explained, “we’re not saying that he was a person of good character.” (13RT 2895.) On balance,that is the only fair assessment of the defense case during the penalty phase. The gang evidence was improper under section 190.3. The gang evidence was unduly prejudicial and highly inflammatory. This Court has warned that gang evidence has a “highly inflammatory impact.” (People v. Cox (1991) 53 Cal.3d 618, 660; People v. Gurule (2002) 28 Cal.4th 557, 653.) Section 190.3 contains the procedure forthe jury’s determining the penalty in a capital case. Subdivision (b) of section 190.3 makes admissible “[t]he presence or absenceof criminalactivity by the defendant which involved the use or attempteduse offorce or violence or the express or implied threat to use force or violence.” To be admissible under subdivision (b), the evidence must show actual, attempted, or threatened force, or violence, against a person. (People v. Wallace (2008) 44 Cal.4th 1032, 1081-1082 [upholding 412 introduction of evidence the defendant possessed altered, contraband razors while in jail]; People v. Gutierrez (2002) 28 Cal.4th 1083, 1152 [same concerning six loose razor blades and twosafety razor heads where defendant threatened the jailer].) Unlike the possession of contraband and potentially dangerous weapons while in custody, the evidence here did not involve an offense, a disciplinary violation, any actual violence, or threat of violence. Moreover, anything that occurred with Chris occurred with his consent and apparent willing participation similar to other common initiations. Accordingly, the gang evidence was impermissible under section 190.3. Section 190.3 superseded former California law. This Court explained the effect of the amendedstatute was no longer to provide jurors with a list guiding them on aggravating and mitigating factors, but rather to limit the factors that jurors properly may consider at all. People v. Boyd (1985) 38 Cal.3d 762, 773-774, explained: The change from a statute in which the listed aggravating and mitigating factors merely guide the jury’s discretion to one in which they limit its discretion requires us to reconsider the question of what evidence is “relevant to aggravation, mitigation, and sentencing.” (§ 190.3.) Relevant evidence “means evidence . . . having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination ofthe action.” (Evid. Code, § 210; see People v. Ortiz (1979) 95 Cal.App.3d 926, 933 [157 Cal.Rptr. 448].) (Italics added.) Since the jury must decide the question of penalty on the basis of the specific factors listed in the statute, the quoted language must refer to evidence relevant to those 413 factors. Evidence of defendant’s background, character, or conduct which is not probative of any specific listed factor would have no tendency to prove or disprove a fact of consequenceto the determination ofthe action, and is therefore irrelevant to aggravation. (Ibid.) Morerecently, this Court held “[a] prosecutor may notpresent evidence in aggravationthatis not relevant to the statutory factors enumeratedin section 190.3.” (People v. Jones (2003) 29 Cal.4th 1229, 1265, citing People v. Crittenden (1994) 9 Cal.4th 83, 148, and People v. Boyd, supra, 38 Cal.3d at pp. 772-776.) Thus, Jones concluded that a lack of remorse expressed after commission ofthe crime is not a proper aggravating factor underthestatute. As the United States Supreme Court recently reaffirmed, “[m]ere membership in a gangis not a crime under California law.” (Messerschmidt v. Millender (2012)= US.____s[132. S.Ct. 1235, 1257,fn. 7, 182 L.Ed.2d 47], citing People v. Gardeley (1996) 14 Cal.4th 605, 623; in accord People v. Castaneda (2000) 23 Cal.4th 743, 748.) Previously, the High Court had held that mere membership in a criminal gangis not a crime. (Scales v. United States (1961) 367 US 203, 203, 205, 227-228 [81 S.Ct. 1469, 6 L.Ed.2d 782].) Gang membershipis, however, highly inflammatory and prejudicial evidence. Gang evidence ought not be admitted when its probative value is minimal. 414 (People v. Herandez (2004) 33 Cal.4th 1040, 1047.) Here, the evidence was not even minimally probative, and it was improper undersection 190.3. As Boyd explained, a defendant may introduce evidence undersection 190, subdivision (k), concerning character, history, or record, that supports a sentence other than death. However, that same leewayis not afforded to the prosecution under section 190.3, which strictly limits evidence to the framework in that section. (In accord, Eddings v. Oklahoma (1982) 455 U.S. 104, 110 [102 S.Ct. 869, 71 L.Ed.2d 1] [discussing Eighth and Fourteenth Amendments and requirementto consider any mitigating factor relating to the defendant’s character or record]; Lockett v. Ohio (1978) 438 U.S. 586, 604 [98 S.Ct. 2954; 57 L.Ed.2d 973] [same].) Similarly, evidence from the bus driver that Hardy and/or his companionsargued aboutthe busfare, and argued either amongst themselves, or with a fourth individual, about gangs did not satisfy the requirements of section 190.3, subdivision (b). Aitken’s testimony at trial was that Hardy argued with his companions, Pearson and Armstrong. (14RT 3051.) McMahontestified that when he interviewed Aitken on January 5, 1999, the resulting report reflected Aitken had reported three black males had a dispute with a fourth about gangs. (14RT 3053.) McMahonalso interviewed Hardy, who said there was a dispute about Crips and Bloods, and colors. (14RT 415 3054.) There was noindication the dispute was anything more than a verbal disagreement about gangs. Whether Hardy argued with his companions, or whetherthe three argued with a fourth individual, evidence of the argument was not “criminal activity by the defendant which involved the use or attempted use of force or violence or the express or implied threat to use force or violence.” (§ 190.3, subd. (b). There was a verbal argument, the subject of which was gangs. There wasno evidence,or reasonable inference, of“the use or attempted use offorce or violence or the express or implied threat to use force or violence.” Furthermore, there wasnoallegation, or inference, that any one ofthe charged crimes was gang related. (Compare, People v. Champion (1995) 9 Cal.4th 879, 943, modified (1995) 10 Cal.4th 462a, cert. den. (1996) 516 U.S. 1049 [116 S.Ct. 714, 133 L-Ed.2d 668] [evidence ofgang membership proper under § 190.3, subd. (a) where evidence supported inference murders were committed by defendant’s gang, and gang membership was a circumstance of crime].) Indeed, the crimes had nothing whatsoever to do with any gang. Hardy’s involvement with any gang wasirrelevantto the penalty phase. While there was no actual evidence of “attempted use of force or violence or the express or implied threat to use force or violence,” the specter ofHardy’s gang involvement impermissibly suggested precisely that type of violence. 416 Evidence of gang involvement also was improperrebuttal, as the trial court initially appeared to recognize. People v. Fierro (1991) 1 Cal.4th 173, cited by the prosecutor, does not support the introduction ofthe gang induction evidence. (See 13RT 2891-2893.) While Hardy presented evidence explaining his background and family situation, he did not present evidence that his character was good, or deny he had someassociation with a gang. Indeed, Hardy presented evidence he wasin a gang. In contrast, in Fierro, the defendant’s mother not only testified about family background and the defendant’s educational difficulties, but also testified how “defendant often helped his neighbors . . . , played Little League baseball, acted in school plays and accompaniedhis family on picnics.” (/d. at p. 236.) The mothertestified the defendant was “well behaved,” close to his siblings, and “was loved” by the family, his wife and children. (/bid.) Asthe trial judge in Hardy’s case found, the defense did not present a picture that Hardy was a “wholesome, loving individual.” (13RT 2888.) Fierro stands for nothing more than once a defendanthas placedhis allegedly good character into issue, the prosecution may introduce evidence tending to show bad character. The gang evidence the prosecutorpresented in this case, however,did not rebut any defense evidence. The prosecutoralso cited People v. Jennings (1988) 46 Cal.3d 963, 981, as justifying the admission of the gang evidence. (13RT 2893.) Jennings 417 neither considered nor decided a similar question. Cases are not authority for propositions not considered. (People v. Barragan (2004) 32 Cal.4th 236, 243.) Atissue in Jennings was the defendant’s appellate challenge to the admission ofevidenceofothercrimes, the prosecution ofwhich wasbarredbythe statute of limitations by the time oftrial. Jennings simply held evidence of “past criminal conduct”is not precluded becauseit occurred outside thelimitations period. (People v. Jennings, supra, 46 Cal.3d at p. 981.) Evidence ofgang involvement wasnot properrebuttal. First, it did not rebut any evidence presented by the defense. Second, the evidence was improper propensity evidence. Third, the evidence did not show violent behavior. There wasno evidence Chris had been injured in any way following the alleged jump-in. Rather, at most, he was merely initiated into the gang, with his consent. Gmurtestified Pearson and Hardy were alone with Chris for about 20 minutes in Gmur’s music room,then the three left together. (14RT 3042.) When they returned, there was nothing at all unusual about Chris. Gmur saw that Chris had not been injured in any way. (J4RT 3043.) The prosecution’s gang expert explained a “jumping”in usually involved a brief beating that lasted one to three minutes. (14RT 3084.) He had no evidence or knowledge aboutthis specific “jumping in.” In any event, the gang detective’s description ofthe initiation was quite similar to college and military initiation 418 rites. The only difference is the organization joined, which is precisely why the prosecution introduced the evidence. While mere membership in a criminal street gang is not, and cannotconstitutionally be, a crime (Scalesv. UnitedStates (1961) 367 U.S. 203, 229 [81 S.Ct. 1469, 6 L.Ed.2d 782]),jurors would view associating with a gang and participating in an initiation as very negative. This wasprecisely the type ofimproper evidence the Supreme Court warned against in Ake v. Oklahoma (1985) 470 U.S. 68 [105 S.Ct. 1087, 84 L.Ed.2d 53]. Ake explained “‘a State may not legitimately assert an interest in maintenance of a strategic advantage over the defense, if the result of that advantageis to cast a pall on the accuracy ofthe verdict obtained.” (ld.at p. 79.) The evidence of a gang “jumping in”, and an argument about gangs- - both on the night of Sigler’s murder- - improperly persuadedjurors to impose the death penalty based on a “strategic disadvantage” to Hardy manufactured by the prosecution. This gang evidence forced Hardy to defendhis actions as a gang member, and forced him either to accept the prosecutor’s characterization ofhim as a gang thug,or to defend theartificial gang persona the prosecutor created. Hardy wasprejudiced by the evidence of his participating in Chris’s induction into a gang. First, the prosecution’s evidence of| Hardy’s involvement with gang activities on the same night as the offenses suggested 419 anefarious temporallink between criminalstreet gangs and the charged crimes when,in reality, no such link existed. The charged offenses were not gang related in any way. Second, effectively the last evidence heard by the jurors before they determined the penalty was about Hardy’s involvement in an argument over gangs and a gang induction. Psychologically, this gang evidence that was presented last was morelikely to stay with jurors as they began deliberations on the penalty. Third, the prosecution’s gang evidence wasprejudicial even though Hardy hadpresented evidence of his past involvement with a gang. Hardy’s gang evidence wasofa different character. Hardy’s stepfather had gangster friends (13RT 2919-2920), and so Hardy was exposed to gangs from a young age. Still, it was only after Hardy was molested by a trusted pastor that he became involved in a gang where he achieved some misplaced sense ofworth (13RT 2941-2942) with peers who had previously excluded him (13RT 2933). Even so, despite having a gang affiliation, Hardy cooperated with law enforcement in the prosecution of a gang murdercase, and providedcritical evidence for the prosecution. (13RT 2734.) Fourth, the prosecution’s gang evidence masqueradedas rebuttal. This suggested tojurors that the evidence somehow discredited Hardy’s mitigation 420 evidence. The prosecutor argued strenuously that the gang evidence should be introduced, and for good reason: she knew precisely how prejudicial it was. (Cf., People v. Cruz (1964) 61 Cal.2d 861, 868 [‘“There is no reason why we should treat this evidence as anyless ‘crucial’ than the prosecutor — and so presumably the jury — treated it.”’].) The purpose ofpermitting the prosecutionto present rebuttal evidence is to provide jurors with “a more balanced picture of the defendant’s personality” (In re Ross (1995) 10 Cal.4th 184, 208) where the defendant has introduced evidence of good character. But this Hardy did not do so. People v. Loker (2008) 44 Cal.4th 691, explained that admissible rebuttal evidenceis covariant with evidence ofgood character introduced by the defendant. Loker explained, this Court has “firmly rejected the notion that ‘any evidence introduced by defendantofhis “good character”will open the door to any and all “bad character” evidence the prosecution can dredge up. As in other cases, the scope of rebuttal must be specific, and evidence presented or argued as rebuttal must relate directly to a particular incident or charactertrait defendant offers in his own behalf.’ [Citation.]” (People v. Loker, supra, 44 Cal.4th at p. 709.) “The scope of proper rebuttal is determined by the breadth and generality of the direct evidence.” (Jbid.) 421 In sum, introduction of inflammatory gang evidence wasprejudicial error. The Eighth and Fourteenth Amendments preclude consideration of invalid aggravating factors. (Espinosa v. Florida (1992) 505 U.S. 1079, 1080-1083 [112 S.Ct. 2926; 120 L.Ed.2d 854]; Clemonsv. Mississippi (1990) 494 US. 738, 752 [110 S.Ct. 1441; 108 L.Ed.2d 725].) The Eighth Amendment requires “close appellate scrutiny of the import and effect of invalid aggravating factors ....” (Stringer v. Black (1992) 503 U.S. 222, 230 [112 S.Ct. 1130; 117 L.Ed.2d 367].) “Employing an invalid aggravating factor in the weighing process‘createsthe possibility . . . of randomness,’ [citation] by placing a ‘thumb[on] death’s side of the scale’ [citation] thus ‘creat[ing] the risk [of] treat[ing] the defendant as more deserving of the death penalty’ [citation].” (Sochorv. Florida (1992) 504 U.S. 527, 532 [112 S.Ct. 2114; 119 L.Ed.2d 326].) The gang evidence tipped the scale in favor of death. Admitting the gang evidence violated Hardy’s rights to a fair trial, due process, effective assistance of counsel, and to a reliable determination of death eligibility, in violation ofthe Fifth, Sixth, Eighth and Fourteenth Amendments. Accordingly, the death penalty should be reversed. 422 Department’s determination. XVIII THEJUDGEMENTOFDEATHSHOULDBEREVERSED BECAUSE THE TRIAL COURT PRECLUDED CROSS- EXAMINATION OF A PROSECUTION WITNESS CONCERNING A PRIOR INCIDENT DURING WHICH HARDY’S SON SUFFEREDASTABBING INJURY. THE ERROR DENIED HARDY THE RIGHT TO PRESENT MITIGATING EVIDENCE DURING THE PENALTY PHASE OF THE TRIAL, AND THEREBY VIOLATED HARDY’S FIFTH, SIXTH, EIGHTHANDFOURTEENTH AMENDMENT RIGHTS TO CONFRONT WITNESSES, PRESENT EVIDENCE, DUE PROCESS, A FAIR TRIAL, AND A REASONABLE DETERMINATION OF PENALTY. Summary of Argument. The prosecution called two officers whotestified about a 911 call to Hardy’s homein April 1996. Officerstestified they discovered Hardy’s young son with a stab woundtohisleft thigh. On cross-examination, defense counsel sought to introduce an officer’s testimony concerning the results of the Department of Children Services investigation into the incident, and the relevance objection, and the defense was precluded from introducing the evidence. (12RT 2629-2630.) The exclusion ofevidencethatlocal authorities charged with the responsibility of protecting children had investigated the 1996 incident and taken no action was relevant, and admissible under the doctrine ofcompleteness (Evid. Code, § 356) and as mitigation (§ 190.3, subd. 423 The trial court sustained the prosecutor’s (k).) Excluding the evidence waserror that violated the prohibition against cruel and unusual punishment, and requires reversal ofthejudgmentofdeath. B. Relevant Procedural Background. The prosecution presented evidence during the penalty phase through two officers concerning an incident at Hardy’s home on April 11, 1996, when Hardy’s son was injured. (12RT 2624.) Jacinto Ponce was one of the responding officers. (12RT 2586-2587.) Ponce respondedto a call reporting a child had been stabbed. (12RT 2587.) Ponce andhis partner, officer Philip Cloughsey,arrived to find Hardy, who was19 yearsold atthe time,sitting on the porch holding his five-year old son. Hardy held a tissue to the back ofthe boy’s left thigh. (12RT 2588, 2624.) Hardy was under the influence of alcohol with a .1 blood alcohol content. (12RT 2617-2618.) The boy was bleeding from a two-inch diameter puncture wound. (12RT 2628.) Ponce testified Hardy gavethree different stories to explain the boy’s injury: Hardy’s keys stabbed the boy (12RT 2590); a knife in Hardy’s pocket stabbed the boy (12RT 2592-2593); and the boy fell onto the kitchen table and was cut. (12RT 2613). Ponce, who wasnot an accident reconstructionist (12RT 2610-2611) thought the explanation was inconsistent with the wound. (12RT 2617.) Cloughsey later spoke with the boy at the hospital as he received medical treatment. The boy reported he had wrappedhis legs around Hardy, 424 and felt a stabbing. He screamed, and Hardy put the boy down,called 911, and held a tissue to the wound. (12RT 2629.) The following occurred during cross-examination: Q: Whocalled 9-1-1? A: The defendant. Q: Okay. A: Hecalled 9-1-1, grabbed some Kleenex, put him on the back of his leg and held him onthe front porch. Q: Until the police came? A: Until the police came. Q: Did you contact the Department of Children Services? A: Yes, I did. MS. LOCKE-NOBLE: Objection, Your Honor. Irrelevant. THE COURT: Well, that answer will stand. I’m not sure I see the relevance of anythingelse. Go ahead. MR. YANES: Let’s venture another one, Your Honor. Q: Were you aware oftheir determination of what happened? MS. LOCKE-NOBLE: Objection, Your Honor. Irrelevant. THE COURT: Well, sustained. MR. YANES: I have no further questions. 425 (12RT 2629-2630.) C. Cross-examination ofthe Officer to Show Lack ofAction by the Department of Child Services Was Proper under the Doctrine of Completeness and as Mitigation. Exclusion of evidence of the officer’s knowledge aboutthe results of investigation by the Department of Child Services violated the doctrine of completeness by permitting the prosecutor to introduce only a portion of the state’s evidence regarding the 1996 incident when Hardy’s son wasinjured. The doctrine of completeness most often is applied to writings to address the concerns that a fact-finder could be misled because only portions of a statementare introduced, and are taken out of context. (See e.g., Evid. Code, § 356; Fed. Rules of Evid., Rule 106.) The doctrine, however,is not limited to writings. Evidence Code section 356 applies the concept also to acts. Section 356 provides in pertinent part: “Where part of an act, declaration, conversation, or writing is given in evidence by oneparty, the whole on the same subject may be inquired into by an adverse party... .” The section explainsthe purposeofthe introduction ofthe complete act is admissible when “necessary to make it understood... .” This Court explained the purpose of Evidence Code section 356 in People v. Arias (1996) 13 Cal.4th 92, 156. “The purposeofthis section is to prevent the use of selected aspects of a conversation, act, declaration, or 426 writing, so as to create a misleading impression on the subjects addressed. [Citation.]” ([bid.) Here, the introduction of the testimony from twoofficers created “a misleading impression” that Hardy was responsible for the injury to his son in 1996. In orderto prevent this misleading impression, Hardy was entitled to present evidence showing that local authorities took no official action on the incident. The only reasonable inference from the record was that Hardy was never prosecuted for the incident. The prosecutor presented no evidence of charges brought, or a conviction obtained. The only reasonable inference from the record also was that the Department of Children Services looked into the incident (12RT 2629 [officer contacted child protective services], and that no action was taken by authorities as a result of the incident. The officer knew the results of the investigation and the agency determination. He knewthis, not as a matter ofidle curiosity, but as part ofhis official duties as one of the responding officers. There was no evidence Hardy’s son was removed from the home, or that any supervision was ordered. Certainly, had the boy been removed from the home because of Hardy, the prosecutor would have introduced that evidence. But Hardy wasnot permitted to question the officer aboutthe results ofthe investigation, and the lackofofficial action. The result 427 was a miscarriage of justice. (Evid. Code, § 354, subd. (c) [erroneous exclusion of evidence sought during cross-examination].) Additionally, exclusion of evidence ofthe officer’s knowledge about the results of investigation by the Department of Child Services violated Hardy’s right to present mitigation after the prosecutor had presented evidence suggesting Hardy stabbed his son. Section 190.3 lists, as the final factor to be taken into account in determining penalty, “[a]ny other circumstance which extenuates the gravity of the crime even thoughit is not a legal excuse for the crime.” (§ 190.3, subd. (k).) The factor discusses “any ... circumstance,” and is not limited to circumstances surrounding the crimes. This Court explained the factor “as an open-ended, catchall provision, allowing the jury’s consideration ofany mitigating evidence.” (People v. Easley (1983) 34 Cal.3d 858, 878.) In doing so, this Court recognized the mitigation encompassed included “any other ‘aspect of [the]defendant’s character or record . . . the defendantproffers as a basis for a sentence less than death.’” (/d. at p, 878, fn 10 [instruction on breadth of factor k mitigation].) Precluding Hardy’s cross-examination to reveal the results of the investigation, and authorities’ inaction, created a prejudicial misconception. The prosecution presented a tragic, perhaps suspicious, accident as one where 428 Hardyhad stabbedhis son. Investigating law enforcementandchild protective services, however,at the time, most certainly reached a different conclusion. D. The Trial Court’s Preclusion of Cross-examination Concerning the Department of Child Services Results of Investigation Violated the Prohibition Against Imposition of Cruel and Unusual Punishment in the Eighth and Fourteenth Amendments, and Article I, Section 17 of the California Constitution, and must Result in Reversal of the Judgment of Death. “(T]he Eighth and Fourteenth Amendments require that the sentencer ... not be precluded from considering, as a mitigating factor, any aspect of a defendant’s character or record and any of the circumstances of the offense that the defendantproffers as a basis for a sentence less than death.” (Eddings v. Oklahoma (1982) 455 U.S. 104, 110 [102 S.Ct. 869, 71 L-Ed.2d 1], quoting Lockett v. Ohio (1978) 438 U.S. 586, 604 [98 S.Ct. 2954, 57 L.Ed.2d 973] [plurality op. ofBurger, J.J.) The risk of arbitrary and capricious application of the death penalty can be prevented “by a carefully drafted statute that ensures that the sentencing authority is given adequate information and guidance.” (Gregg v. Georgia, supra, 408 U.S. at p. 195.) “[T]he fundamental respect for humanity underlying the Eighth Amendment .. . requires consideration of the character and record of the individual offender and the circumstances of the particular offense as a constitutionally 429 indispensablepart ofthe processofinflicting the penalty of death. (Woodson v. North Carolina (1976) 428 U.S. 280, 304 [96 S.Ct. 2978, 49 L.Ed.2d 944].) Mitigating evidence in a capital sentencing hearing need meetonly the low threshold of “relevance” under the Evidence Code in order to be admissible. “[T]he meaning of relevance is no different in the context of mitigating evidence introducedin a capital sentencing proceeding than in any other context, and thus the general evidentiary standard—any tendency to make the existence of any fact that is of consequenceto the determination of the action more probable or less probable than it would be without the evidence applies.” (Tennard v. Dretke (2004) 542 U.S. 274, 284 [124 S.Ct. 2562, 2570, 159 L.Ed.2d 384], quoting McKoy v. North Carolina (1990) 494 USS. 433, 440 [110 S.Ct. 1227, 108 L.Ed.2d 369.]) Oncethe test for relevance is met, the “Eighth Amendmentrequires that the jury be able to consider and give effect to a capital defendant’s mitigating evidence.” (Tennard v. Dretke, supra, 124 S.Ct. at p. 2570, quoting Boyde v. California (1990) 494 U.S. 370, 377-378 [110 S.Ct. 1190, 108 L.Ed.2d 316].) For the reasons explained below,the trial court’s preclusion of cross-examination to present mitigating evidence, concerning the April 1996 incident involving Hardy’s son, violated Hardy’s federal constitutionalrights and was not harmless beyond a reasonable doubt. (Chapmanv. California, supra, 386 U.S.at p. 24.) 430 Article I, Section 17, ofthe California Constitution requires the jury to consider mitigating evidence in capital proceedings. The test is whether the penalty imposed wasgrossly disproportionate to the defendant’s culpability in light ofthe nature ofthe crime, his personal characteristics, and background. (See People v. Smithey (1999) 20 Cal.4th 936, 1016; People v. Dillon (1983) 34 Cal.3d 441, 477-482.) Assessment of Hardy’s personal characteristics requiredthejury to consider the outcomeoflocal authorities’ investigation and determination concerning his son’s injury. Defense counsel’s cross- examination attempted to reveal this, and wasmitigating evidence, which should have been admitted under the Eighth and Fourteenth Amendments, and Article I, Section 17. Once the prosecution introduced evidence tending to show Hardy had injured his son, Hardy was entitled to present evidence through cross-examination that the injury was determined to not warrant further action of any kind - - either penal or administrative. Precluding the cross-examination, however,left jurors with an incorrect impression. Jurors decided to impose the death penalty based not only on the crimes, but also based on the facts and circumstances of Hardy’s life. Inflicting injury on a young child is very inflammatory evidence that Hardy was prevented from fully rebutting or explaining. Based on the foregoing, the judgment of death should be reversed. 431 XIX THE PROSECUTOR’S USE OF DIFFERENT AND WHOLLY INCONSISTENT THEORIES AT THE PENALTY PHASES OF THE SEPARATE TRIALS OF HARDY AND HIS SEVERED CO-DEFENDANT KEVIN PEARSON VIOLATED HARDY’S TRIAL AND DUE PROCESS RIGHTS UNDER THE SIXTH AND FOURTEENTHAMENDMENTSANDALSORESULTED IN A VIOLATION OF THE EIGHTH AMENDMENT PROHIBITION AGAINST CRUEL AND UNUSUAL PUNISHMENT REQUIRING VACATION OF THE DEATH PENALTY SENTENCE. A. Summary of Argument. “He is the leader.” (L4RT 3144,line 1.) Those were the prosecutor’s words describing Hardy’s role, and in support of the death penalty. Yes, according to the prosecutor, Hardy was behindit all, “He wasthe leaderin this case.” (J4RT 3146, lines 12-13.) Yet, in co-defendant Pearson’s latertrial, again arguing for the death penalty, the same prosecutor argued: “The defendant wasthe leader.” (20RT [Pearson]** 4891, line 15.) “He wasthe leader.” (20RT [Pearson] 4892, lines 12-13.) Only in Pearson’s trial, the defendant to whom the prosecutor referred as the leader was Pearson, not Hardy. Indeed, at Pearson’s trial, the prosecutor expressly argued that Hardy wasunderthe control ofPearson, who was Hardy’s leader. She argued Hardy 4 Under separate cover, Hardy requested this Court to notice judicially the court records in People v. Pearson, including the transcripts. Hardycites to those transcripts herein with the notation “Pearson.” 432 “stopped what he was doing because [Pearson] was the leader.” (2ORT [Pearson] 4891-4892.) The prosecutor’s use ofinconsistent theories ofleadership to exaggerate Hardy’srole in the offenses and persuadethe jury to select the death penalty violated Hardy’s trial and due process rights under the Sixth and Fourteenth Amendments, and violated the Eighth Amendmentprohibition against cruel and unusual punishment. B. The Prosecution’s Inconsistent Theories at the Penalty Phase Trials of Separate Defendants in Hardy’s Case. During the penalty phase, Hardy presented evidence that he was a follower, not a leader, and therefore not the prime mover behind the crimes. Defense counsel argued in his opening statement that Hardy suffered from a mental disorder, birth defects and major learning disabilities. (A2RT 2716- 2717.) James Johnson, one of Hardy’s former mentors and employers met Hardy when he was about 12 or 13 years old. (12RT 2752.) Johnson was Hardy’s instructor. During the time Hardy was Johnson’s student, andlater as an employee, Hardy did only what he was told. (12RT 2753.) Hardy lacked initiative on his own. (12RT 2754.) When Hardy worked for Johnson, Johnsontried to get Hardyto take the initiative. (12RT 2756.) But Hardy was more a follower than a leader. (12RT 2756.) 433 Tiyarie Felix, the mother of Hardy’s children, testified Hardy was a follower. (13RT 2828.) For example, Hardy followed Chris Armstrong,his half-brother, into gang activities. (13RT 2828.) Hardy wasa follower, never a leader except with his children. (13RT 2828.) Carl Osborn, Ph.D., a forensic psychologist, evaluated Hardy. (13RT 2906-2908.) Dr. Osborn obtained information from multiple sources. (13RT 2909-2910.) Dr. Osborn reached three conclusions relevant to sentencing, including that Hardy participated in the offenses while being dominated by a co-defendant. (13RT 2911.) Hardy’s intelligent quotient(1.Q.) tested at 83, which was “pretty weak.” An IQ. of 100 is normal, 70 represents mental retardation. Hardy’s I.Q. of 83 places him in the thirteenth percentile, which means 87 percent ofpeople are moreintelligent than Hardy. That means about four out of every five people are smarter than Hardy and can trick Hardy. (13RT 2943.) Counsel specifically asked Dr. Osborn about Hardy’s ability to function as a leader: Q: Let me ask you something. What about for being a leader or follower, does it have an effect on that to have a low IQ? A: Sure, to the extent that the clever [lead] the notso clever. Warrenisin the latter group, and whenI say clever, and I don’t mean intelligence quotient, a smart person, there are [a] lot of different smarts, there are street smarts. In the street environment, you got to have horse power and Warren doesn’t 434 have it. When it comes . . . down to it when you put Warren in a complicated, time pressured situation, he is in big trouble. (13RT 2944.) Dr. Osborn explained Hardy dropped out of the tenth grade. (13RT 2947.) The defense presented expert opinion evidence from Dr. Osborn tending to show,underfactor G, that Hardy was dominated by oneofthe co- defendants. Defense counsel asked, “Would you be very specific about why [you] drew the second conclusion . . . that he was dominated by a co- defendant?” Counsel further explained the question: Q: In other words, a follower-type thing. What factors do you contribute [sic] to that opinion or do you basethat opinion on? A: Let mespell out my data for it. If you would - - MS. LOCKE-NOBLE:Objection, Your Honor, that wasn’t the question asked. . THECOURT:Well, J think it may fairly be within the question, so go ahead. THE WITNESS: WhatI am trying to dois give the jury an idea of how IJ drew this conclusion from various sources of information. As a matter of fact, let me quote what I have down in mynotes. “People who know Warrensaythat heis a follower, not a leader.” Pastor Scales, not the pastor who molested [Hardy], I want to makethis clear. A different pastor who knew himlaterin life. This is what Pastor Scales said. This is a quote. “The step- father was an ogre to the defendant. The defendant needed someone to hang on to. He therefore got into gangs.” And in 435 capital letters, “Warren was always a follower.” So this from Pastor Scales. (13RT 2952-2953.) Osborn continued: Mr. Johnson said James [Hardy’s stepfather] saw Warren as a follower, not a leader. He would attach himself to others in the program. He definitely needed to be led. Tyriea Felix said, “Warren is a big time follower andfeels he has to prove himself to people.” The desire and the urge to fit in, to be part of something is desperate in Warren. Thisis clear from his entire life history. It is still true about him. I’m sure he doesn’t like hearing this, but I believe it strongly to be true. The only structure and family that Warren hasis gangrelated. And while he makes a good show ofthings being cool and being tough, the criminal activity that I know that he was involved in before, he was an “also ran.” He was with other guys who basically pointed out what to do and told him whatto do. Based on the information that I have about this crime, that was also his part here, and that’s what he does. He does whatheis told. He will stand up and he is down withit, as they say, but he does what he is told. And I have no instances in any of the information that I have about Warren over many years of him being involved in a sex crime. (13RT 2953-2954.) The foregoing evidence of Hardy’s habitual and lifelong nature as a follower wassignificant enough to the prosecutorthat she addressedit during argument, and averred Hardy wasin a leadership role vis-a-vis the two co- defendants. The prosecutor derided Dr. Osborn’s opinion that Hardy was a follower: 436 You have to decide whether or not you believe the opinion of Dr. Osborn, who basedthat opinion only on hearsay. [{]. . [9] It said on that chart that he was a follower. He wasa the oldest. He boughtalcohol. Kids looked up to him. Hehas a deepclear voice. What did Dr. Osborn say? What wasthebestpart of his testimony? He soundslike a guy three times his size. That’s a command that you can do with your voice. You can make somebody believe in you and do what you want them to do with a voice. He can command others to follow him. He is the leader. (13RT 3142-3144.) The prosecutor continuedherattack on the defense theory that Hardy wasa follower, not a leader: FactorI, the age of the defendantat the time of the crime. He was22 at the time he committed this crime. He wastheoldest. Alonethis particular factor has no meaning, but in conjunction with Factor J, it makes sense. So let’s talk about Factor J, whether or not the defendant was an accomplice to the offense and his participation in the commission ofthe offense wasrelatively minor. It wasn’t. He wasthe leader in this case. He was the oldest. He was the big brother. He bought alcohol for others who were younger than him and not yet 21. He gave the alcohol to his brother Jamelle and to Kevin Pearson. The defendant was up close and personalin these crimeshebit Penny twice. The defendantinitiated this violent attack. The defendant collected all the evidence of the crimes. The victim’s clothing, the wooden stake. He made sure that everything was collected. And evenafter that he hadthe others, Kevin Pearson and Jamelle Armstrong,stay at his homeafter the crimes. He wanted to make sure they did not go anywhere and start talking. He want[ed] to keep a rein on them. He wasthe leader. He was in command. He wanted to make sure he had control over them. He had the clothes they wore that 437 night. He kept them. Andhis voice means business. When he speaksin that voice, you know he means whatheis saying. (14RT 3146-3147 [bold emphasis added].) So in the prosecutor’s words, Hardy wasthe leader. But later, in the penalty phase of Pearson’s trial, the same prosecutor argued Pearson, not Hardy, wasthe leader. At Pearson’s trial, the prosecutor focused the jury’s attention on Factor J,’° and argued Pearson wasthe defendantresponsible for gathering and destroying evidence, and that Pearson controlled Hardy: It was [Pearson’s] idea to destroy any fingerprints by rolling the victim downthe hill. He used his shirt to wrap it around her waist and roll her in that mulch so that he could remove the fingerprints. It was [Pearson’s] ideato collect all the incriminating evidence, her clothing, he was worried aboutthe shoe,the stake,all ofthat wascollected up. And [Pearson] wasthe one that worried about it. He was the one that was in control. He was the one directingit. [Pearson] made sure that the bus driver did notcall the police. He wasthe onethat madesure things ran smoothly until they got to Hardy’s house. [Pearson] made sure that Hardy stayed underhis control so the police would not be called, and he would not be caught. He was the first one to spendhis share ofthe loot. He bought that black * Factor J states one factor jurors should consider when deciding the penalty is: “Whether or not the defendant was an accomplice to the offense andhis participation in the commission of the offense wasrelatively minor.” (§ 190.3, factor. (j).) 438 and mild. Jamelle [Armstrong] got [sic] gave him the money. They got six dollars, two dollars a person and he wanted that black and mild cigar, a smokeafter sex. Hesaid, “we killed a white woman.” Thisis a factor for you to take into consideration. [Pearson’s] participation was not relatively minor. He was a major participant. (20RT [Pearson] 4890 emphases added] [Hardy has requested this Court to take judicial notice of the records in Pearson’s trial].) Later, the prosecutor focused the jury on Factor G.*° The prosecutor argued: Factor G. Whether or not the defendant acted under extreme duress or under the substantial domination of another person. The defendant [Pearson] was the leader. He was looked up to by other people. The defendant was Scrappy Caponeofthe Capone ThugSoldiers. The defendant [Pearson] asked Monte if he could put Chris on the block and himjump[sic] into the gang ofC.T.S., Chris what is that? Beating someone up. A very short time before Penny was murderedthere he is engaging in violent activity. What is his mindset. The defendant [Pearson] was bigger than Warren [Hardy] and he was about the same size as Jamelle [Armstrong]. The defendant immediately participated in the robbery. The defendant was[sic] first one to rape the victim. And how do we know that, because he told Warren [Hardy] that was disgusting, 36 Factor (g) states one mandatory factor to be consideredis: “Whether or not defendant acted under extreme duress or underthe substantial domination of another person.” (Pen. Code, § 190.3, factor (g).) 439 that he could get AIDS and what does Warren [Hardy] [sic]? Doeshe[sic] listened to him and he stopped what he wasdoing because [Pearson] wasthe leader. It was defendant’s ideato collect the clothes. It was defendant’s idea to wrap the shirt around her wrist drag her up the hill and roll her downthehill to destroy fingerprints in the mulch, and whofollowed him? Jamelle [Armstrong]. He sees his leader [Pearson] wrapping his shirt around the armsand wrists ofthe victim, and Jamelle [Armstrong] takes his shirt off and wraps them [sic] aroundthe legs ofthe victim and they drag herup the hill. The defendant apologized to the bus driver to prevent police from being called and defendant [Pearson] kept control over Warren Hardy’s behavior on that bus. He wasthe leader. Hardy was the same age as the defendant, but Jamelle was younger. (20RT [Pearson] 4891-4892 [emphases added].) The trials of the three co-defendants were severed because each had made confessions that could not be introduced against the other two. (2RT 48E-51; see also People v. Aranda (1965) 63 Cal.2d 518, and Bruton v. United States (1968) 391 U.S. 123 [88 S.Ct. 1620, 20 L.Ed.2d 476].) In other words, the severance oftrials was to protect each of the defendant’s rights. The inconsistent prosecution position at trial misused what was intended as a benefit to, or protection of, Hardy, and transmuted the separate trials into a subterfuge forpresenting inconsistent prosecution theoriesat the penalty trials. The prosecution’s inconsistency bore directly on thejury’s decision to impose death because at Hardy’s trial the prosecutorbelittled the idea that Hardy was 440 influenced or controlled in any way by either of the two co-defendants. Instead, the prosecutor argued Hardy had influence and control over his companions. She argued Hardy wasprimarily responsible for the offenses, and for gathering and destroying evidence. C. Inconsistent Prosecution Positions at Separate Penalty Phase Trials Violated Due Process. The United States Supreme Court has held the Sixth Amendment guarantees concerningthetrial rights ofcriminal defendants, applicable to the states under the Fourteenth Amendment, means criminal trials must be fundamentally fair. (Dowling v. United States (1990) 493 U.S. 342, 352 [110 S.Ct. 668, 107 L.Ed.2d 708].) United States Supreme Courtprecedent requires that fundamentalfairness govern a prosecutor’s actions because the prosecutor is the direct representative of a state in criminal prosecutions. (Mooney v. Holohan (1935) 294 U.S. 103, 110 [55 S.Ct. 340, 79 L.Ed. 791].) “The action of prosecuting officers ... may constitute state action within the purview of the Fourteenth Amendment... .” (/d. at p. 112-113.) Similarly, prosecutorial misconductis unconstitutional when the misconductresults in prejudice to a criminal defendant. (See e.g., Donnelly v. DeChristoforo (1974) 416 U.S. 637, 647-648 [94 S.Ct. 1868, 40 L.Ed.2d 431] [ prosecutorial misconductviolates due process].) For example, Brady v. Maryland (1963) 373 U.S. 83, 87 [83° S.Ct. 1194, 10 L.Ed.2d 215], held the prosecution’s suppression of material 441 evidence favorableto a criminal defendant violates due process regardless of the prosecution’s goodfaith or bad faith. Similarly, Miller v. Pate (1967) 386 U.S. 11, 7 [87 S.Ct. 785, 17 L.Ed.2d 690], held the Fourteenth Amendment does nottolerate the prosecution’s use of false testimony to obtain a criminal conviction. In Jacobs v. Scott (1995) 513 U.S. 1067 [115 S.Ct. 711, 130 L.Ed 2d 618], a capital case from Texas, the conviction was based primarily on the defendant’s confession, which he recanted at trial. (/bid.) The prosecution attacked the defendant’s recantation, but at a co-defendant’s later trial the prosecution adoptedthe recantation to convict a second defendant ofthe same murder. (Jbid.) The first-tried defendant sought a stay of execution and petitionedforcertiorari. The United States Supreme Court denied the stay and the writ. Justices Stevens and Ginsburg dissented and found the prosecution’s use of inconsistent theories violated due process because “[I]t would be fundamentally unfair to execute a person on the basis of a factual determination that the State has formally disavowed.” (/bid.) This Court, four Circuit Courts of Appeal, and the United States Supreme Court have considered the issue ofwhether the prosecution’s use of inconsistent theories violates due process. Each court that has considered the issue has concluded that inconsistent prosecution theories can violate due 442 process. In the following subesctions, Hardy will discuss: (1) this Court’s decision in In re Sakarias (2005) 35 Cal.4th 140; (2) authorities from the Eastern District of New York, the Eighth and Eleventh Circuit Courts of Appeals, and (3) Ninth and Sixth Circuit cases that later went to the United States Supreme Court*’ to demonstrate the dueprocess violation inherentin the prosecutor’s use of inconsistent theories to obtain a death sentence against him. 1. Under Jn re Sakarias (2005) 35 Cal.4th 140, the Prosecutor’s Use of Inconsistent Penalty Theories Violated Due Process. In re Sakarias (2005) 35 Cal.4th 140, considered a case where the prosecution presented inconsistent theories at each of the guilt and penalty trials oftwo separately tried co-defendants. In re Sakarias was decided before Bradshaw v. Stumpf(2005) 545 U.S. 175 [135 S.Ct. 2398, 162 L.Ed.2d 143], which considered a due processchallenge to inconsistent prosecution theories at separate trials.*® Sakarias and his co-defendant Waidla were convicted in separate trials of the first degree murder of the same victim. Each was sentenced to death. (/n re Sakarias, supra, 35 Cal.4th at p. 134.) Waidla was 7 Thompsonv. Calderon (9" Cir 1997) (en banc) 120 F.3d 1045, and Stumpfv. Mitchell (6" Cir. 2005) 367 F.3d 594, each ofwhich waslater reversed by the United States Supreme Court. 38 The decision in Jn re Sakarias issued on March 3, 2005. The decision in Bradshaw v. Stumpf, discussed post., issued on June 13, 2005. 443 tried first in 1990 and early 1991, and Sakarias in late 1991. (Ud. at p. 147.) As in Hardy’s case, the same prosecutortried the cases in separatetrials. In Waidla’s trial, the prosecutor argued Waidla personally used the hatchet that inflicted the fatal woundsto the victim while she wasin the living room ofher homeand then dragged her body into the bedroom whereit waslater found. The prosecutor argued Waidla’s confession omitted admitting to multiple hatchet blows because Waidla did not want to acknowledgehis role. ([bid.) Theprosecutorelicited testimony from the medical examinerthat later injury to the victim had occurred postmortem. The prosecutor arguedthe victim died while in the living room. Atthe penalty phase, the prosecutor argued Waidla personally wieldedthe hatchet, first using the blunt end, then switchingto the blade side, to inflict the mortal wounds. In contrast, at Sakarias’s latertrial, the prosecutor declined to question the medical examiner about specific antemortem and postmortem wounds. The prosecutor thereby omitted evidence from Sakarias’s trial that injuries likely sustained while dragging the victim from the living to the bedroom were sustained postmortem. This permitted the prosecutor to argue there was no evidence the victim was dead when dragged to the bedroom, where, the prosecutor argued, Sakarias (not Waidla) inflicted the fatal hatchet blows. Un re Sakarias, supra, 35 Cal.4th at p. 148.) At the penalty phase, the prosecutor 444 argued Sakariaspersonally inflicted the hatchet woundsthat ultimately killed the victim. (/d. at pp. 148-149.) This Court held that “the prosecutor violated [Sakarias’s] due process rights by intentionally and without goodfaithjustification arguing inconsistent and irreconcilable factual theories in the twotrials ....” (Un re Sakarias, supra, 35 Cal.4th at p. 145.) In Sakarias, the prosecution’s inconsistent theories in separate trials impacted both the guilt and the penalty phases. Specifically, both petitioners also argued the prosecution presented inconsistent theories ofwhich defendant dominated the other undersection 190.3, factor (g). Un re Sakarias, supra, 35 Cal.4th at p. 149.) Section 190.3 requires®’ the trier of fact to take into account certain factors when deciding penalty. One mandatory factor is: “Whether or not defendant acted under extreme duress or under the substantial domination of another person.” (§ 190.3, factor (g).) At Waidla’s trial, the prosecutor argued Waidla was not dominated by anyone else, but was instead the dominant perpetrator. At Sakarias’s trial, the prosecutor argued Sakarias was not dominated at all by Waidla. (dn re Sakarias, supra, 35 Cal.Ath at p. 149.) *° The language is mandatory, the sectionstates: “thetrier of fact shall take into account any of the following factors if relevant.” (Pen. Code, § 190.3.) . 445 While much ofthe discussion in Jn re Sakarias concerned the impact ofthe prosecutor’s inconsistency at the guilt phase,it is clear that the effect at the penalty phase was equally important. In re Sakarias explained: For reasons explained below, we conclude that fundamental fairness does not permit the People, without a good faith justification, to attribute to two defendants,in separatetrials, a criminal act only one defendant could have committed. By doing so, the state necessarily urges conviction or an increase in culpability in one of the cases ona false factual basis, a result inconsistent with the goal ofthe criminal trial as a search for truth. At least where, as in Sakarias’s case, the change in theories between the two trials is achieved partly through deliberate manipulation ofthe evidence put before the jury, the use of such inconsistent and irreconcilable theories impermissibly underminesthereliability of the convictions or sentences thereby obtained. In short, in the absence of a good faith justification, “[c]ausing two defendants to be sentenced to death by presenting inconsistent arguments in separate proceedings .. . .underminesthe fairness ofthe judicial process and may precipitate inappropriate results.” (Poulin, Prosecutorial Inconsistency, Estoppel, and Due Process: Making the Prosecution Get Its Story Straight (2001) 89 Cal. L.Rev. 1423, 1425. (In re Sakarias, supra, 35 Cal.4th at pp. 155-156 [emphases added.) One of the subheadings of the Sakarias decision reads, in part, “The People may not . . . obtain harsher sentences against two individuals by unjustifiably attributing to each a culpable act only one could have committed.” (Cn re Sakarias, supra, 35 Cal.4th at p. 156.) In re Sakarias considered and discussed decisions from the United States Supreme Court and the Eleventh, Ninth, Eighth and Sixth Circuit Courts of Appeals, and 446 concluded federal law holds “that a prosecutor’s inconsistent argumentin two defendants’ separate trials attributing the same criminal or culpability- increasing act to each defendant denies the defendants fundamentally fair trials.” Ud. at pp. 156-158.) In re Sakarias expressly identified the prejudice that arose during the penalty phase because of the prosecution’s inconsistent theories. “To the extent the false attribution ofthe antemortem blow to Sakarias waspotentially material to the penalty decision, it deprived Sakarias ofa fair penalty trial and entitles him to relief.” (/n re Sakarias, supra, 35 Cal.4th at p. 165.) Inre Sakarias involvedreferee’s findings that the prosecution’s use of “divergent factual theories was intentional” and other related findings. (/n re Sakarias, supra, 35 Cal.4th at pp. 151-155.) Hardy’s direct appealinvolves no referee’s findings, but none is necessary for two reasons. First, the only reasonable inference from the record is the use of divergent theories by the prosecutor wasintentional, and designed to influence jurors in each trial to impose the maximum penalty of death. This was not a case where the inconsistencies possibly could have been attributable either to accident or a change in the evidence. This prosecutor had repeatedly announced she was ready fortrial, and would not adhere to any previously-agreed-orderfortrial 447 announced by her predecessor prosecutor.“° (2RT 191; 3RT 319-321; 4RT 573.) Instead, the prosecutor waspreparedfor trial on whicheverofthe three defendants was ready fortrial first. Further, all evidence relating to who amongthe three defendants might have dominated whom wasdiscovered and in the prosecutor’s possession long before Hardy’s first trial began. (See e.g., 2RT 191 [prosecutor’s statement that all evidence was the samein all three trials, and applied equally to all three defendants].) The second reason noreferee’s finding is required is because goodfaith or bad faith on the prosecution’s part is irrelevant to a determination ofthis issue. In a joint trial before a single jury, the prosecution never would have had the option of presenting inconsistent theories. Imagine a penalty phase trial in Hardy’s case whereafter the prosecutor argued Pearson wasthe leader, and Hardy merely Pearson’s follower, Hardy had been able to argue the “° On June 28, 2001, the prosecutor stated she wouldbe ready for trial on all three defendants at the same time. She wouldtry first whichever defendant wasready first. She expected no new evidence, and all evidence applied equally to all three defendants. (2RT 191.) On July 23, 2001, the prosecutor again stated she wouldtry first whichever defendant was ready first. (3RT 321.) The prosecutor stated she was unaware of any representation by her predecessor prosecutor concerning the order of the the trials. She declined to be bound by any statements, and would try first whichever defendant wasreadyfirst. (3RT 319-321.) On November7, 2001, the prosecutor again stated she would bereadyto try all three defendants, and whichever defendant wasreadyfirst would gototrialfirst. (4RT 573.) 448 prosecutor’s very own wordsto discredit the position of Hardy’s dominance that she urged on the jury. As Professor Anne Poulin discussed in her article, Prosecutorial Inconsistency, Estoppel, and Due Process: Making the Prosecution Get Its Story Straight (2001) 89 California Law Review 1423, which Jn re Sakarias cited (see In re Sakarias, supra, 35 Cal.4th at p. 156), if any one of the defendants had knownat the timeoftrial about the prosecutor’s inconsistent positions, the prosecutor’s inconsistent arguments would have been admissible at the trial. (Poulin, Prosecutorial Inconsistency, Estoppel, andDue Process: Making the Prosecution Get Its Story Straight, supra, 89 Cal. L.Rev. at pp. 1440-1443, citing United States v. McKeon (2™Cir. 1984) 738 F.2d 26, 28-32 [discussing prosecution’s introduction of inconsistent defense attorney statements]; United States v. Salerno (1991) 937 F.2d 797, 810-811 [prosecutor's opening and closing statements in a prior criminal case were admissible].) Professor Poulin notedthat in UnitedStates v. Bakshinian (C.D. Cal. 1999) 65 F.Supp.2d 1004, 1107-1108, the court concludedtheprosecution wasnotentitled to the same leeway concerning inconsistent statements as may be accorded to defense counsel. Hardy’s dueprocessrights do not turn on the timing of the trials. The due process violation arises when the prosecution pursuesinconsistent theories of culpability. 449 The prosecutor’s theories, “Hardy wasthe leader,” and “Pearson was the leader,” are clearly inconsistent and irreconcilable. Thus, Hardy’s case differs from that faced by the Wisconsin Supreme Court in State v. Cardenas- Hernandez (Wis. 1998) 579 N.W.2d 678 [219 Wis.2d 516]. The Wisconsin high court concluded the prosecutor’s statements “were not clearly inconsistent” with one another. (/d. at p. 686.) In contrast, there can be no doubt of clear inconsistency here. There was only oneleader: either it was Pearson or Hardy, but not both. Also, the prosecutor’s allegedly inconsistent statements in the Wisconsin case occurred during an early bail hearing when the prosecution was unlikely to have investigated the case fully. (See Jd. at pp. 681-683.) In contrast, the prosecutor’s inconsistent statements in Hardy’s case occurred at the penalty phase whenthe case had been exhaustively investigated and preparedfortrial. The prosecutor’s use of inconsistent non-evidentiary statements or arguments violates due process just as much as the introduction of false testimony. The prosecution’suse offalse testimony violates due process even ifthe falsity is unknownto the prosecutorpersonally. (Giglio v. United States (1972) 405 U.S. 150, 153-155 [92 S.Ct. 763, 31 L.Ed.2d 104].) Here, however, the inconsistencies were knownto the prosecutorpersonally because 450 in eachtrial she inconsistently portrayed only the defendantontrial as having dominance over a defendant notontrial. Further, the prosecutor’s good faith or bad faith is irrelevant to due process analysis. A due process violation occurs either way -- in one instance by oversight or inadvertence, in the other by design. As Professor Poulin explained, good faith or bad faith is relevant only to a determination of a prosecutor’s ethical violation, not to the due process violation effected by the inconsistent positions: Courts should find a due process violation evenifthe prosecutor in the second proceeding was personally unaware of the prior inconsistent government stance. Although some reported instances of prosecutorial inconsistency involved the same prosecutor making conflicting argumentsin separatetrials, many cases involve a different prosecutor making the inconsistent argumentin the second case. [Footnote omitted.] The change in personnel should not alter the due process analysis. A change in personnel eradicates neither the unfairness of espousing inconsistent positions northe threat to the integrity ofthejustice system and, therefore, should not defeat a claim for relief. The prosecutor's knowledgeis pertinent to whetherthereis an ethical violation, but it should not draw the discussion away from the core issue in due process analysis, which is the fairness of the process. The courts should apply the rule of attribution established in [Giglio v. United States, supra, 405 U.S. 150] to cases ofprosecutorial inconsistency as well. [Footnote omitted.] Where the prosecutor was oblivious to the falsity of the testimony, knowledgeofthe inconsistency should be imputed to the later prosecutor. [Footnote omitted.] The prosecutor's office is a single entity, and the due process violation exists "irrespective of good faith or bad faith." [Footnote omitted.] 451 (Poulin, Prosecutorial Inconsistency, Estoppel, andDue Process: Making the Prosecution Get Its Story Straight, supra, 89 Cal. L.Rev. at pp. 1470-1471.) Inre Sakarias applied the Chapmanstandard ofprejudice, with which the Attorney General had agreedin briefing. Un re Sakarias, supra, 35 Cal.4th at p. 165.) Under Chapman, Hardyis entitled to relief because there is a reasonable likelihood that the prosecutor’suse ofinconsistent theories, thatis, Hardy’s domination overhis two co-defendants, affected the penalty verdict. (In re Sakarias, supra, 35 Cal.4th at p. 165, citing United States v. Katar (1* Cir. 1988) 840 F.2d 118, 128.) 2. Federal Authorities Hold That Due Process Is Violated When a Prosecutor Uses Inconsistent Theories in Separate Trials When No New Evidence Justifies the Change. In United States v. Urso (E.D.N.Y. 2005) 369 F.2d 254, the district court concludedthat due process may be violated only whenthe prosecution’s theories are “inherently factually contradictory” and “irreconcilable.” (/d. at p. 264.) Urso explainedthat for two theories to be irreconcilable, the truth of one theory must imply the falsity of the other. (/d at p. 265.) The prosecutor’s inconsistent theories about whether Hardy or Pearson was the leader violated the Urso standard. Hardy could not be Pearson’s leader in Hardy’s trial, and also Pearson’s follower in Pearson’s trial. The theories were “inherently factually contradictory” and “irreconcilable.” (/d. at p. 264.) 452 Smith v. Groose (8" Cir. 2000) 205 F.3d 1045, 1050, granted habeas reliefwhen the prosecution,in bad faith, used inconsistent theories in separate trials. The prosecutor presented inconsistent, and conflicting testimony, from a witnessin twotrials in order to argue that each separately tried defendant had personally committed the murder when only one could have been the actual murderer. (Jd. at pp. 1047-1048.) The prosecutor knew of the witness’s conflicting statements at the time of thefirst trial, and selectively chose to present the testimony inconsistently at each ofthe twotrials. (/d. at p. 1048.) The victims in Smith v. Groose had the extreme misfortunate ofhaving their home burglarized on the same day by two unrelated groups. (Smithv. Groose, supra, 205 F.3d at p. 1047.) One of Smith’s co-burglars, Lytle, gave inconsistent accountsto the police before trial. (/bid.) Lytle first reported a burglar from the other unrelated group murderedthe victims. Two dayslater, Lytle stated someone from his and Smith’s group murderedthe victims. The prosecutorfirst used Lytle’s second statement to convict Smith (and another accomplice) of first degree murder. Thenat a latertrial, the prosecutor used Lytle’s first statement to convict a burglar from the unrelated group of the same murder. (/d. at p. 1048.) A unanimousEighth Circuit, citingMooney v. Holohan, supra, held the prosecutor’s use of inconsistent theoriesat the two separate trials violated due 453 process. (Smith v. Groose, supra, 205 F.3d at p. 1050.) Smith v. Groose explained “we do not hold that prosecutors must present precisely the same evidence and theoriesin [separate] trials for different defendants ....” (Id. at p. 1052.) Instead, the Eighth Circuit explained a due processviolation arose from the prosecutor’s efforts to obtain “as many convictions as possible without regard to fairness and the search for truth.” (/d. at p. 1051.) “To violate due process, an inconsistency mustexist at the core ofthe prosecutor’s cases against defendants for the same crime.” (/d. at p. 1052.) Drake v. Kemp (11" Cir. 1985) 762 F.2d 1449, involved two accomplices who committed a robbery and murder. The prosecution argued inconsistent theories ofguilt to obtain the death penalty against each ofthe two defendants in separate trials. (Drake v. Francis (11Cir. 1984) 727 F.2d 990, 994.) A panel of the Eleventh Circuit initially rejected a due process argument, concluding the prosecution theories were fairly consistent. (Ibid.) In an en banc rehearing, the Eleventh Circuit granted relief. (Drake v. Kemp, supra, 762 F.2d 1449.) A separate concurring opinion, noted “the prosecutor’s totally inconsistent theories of the same crimeat [the defendants’] respective trials transgressed the Fourteenth Amendment’s requirement that a criminal trial be fundamentally fair.” (/d. at p. 1470 (conc. opn. of Clark,J.).) 454 3. The United States Supreme Court Precedents of Bradshaw v. Stumpf (2005) 545 U.S. 175 [135 S.Ct. 2398, 162 L.Ed.2d 143] and Calderon v. Thompson (1998) 523 U.S. 538, 550 [118 S.Ct. 1489, 140 L.Ed.2d 728], Compel the Conclusion That the Prosecution’s Use of Inconsistent Theories at the Penalty Phases Violated Due Process. Two United States Supreme Court decisions, arising from the Ninth and Sixth Circuits, respectively, concerned challengesby first-tried defendants, on due process grounds, to the prosecution’s use of inconsistent theories at the subsequenttrials of co-defendants. Hardy,like the defendants in those two circuit cases, wasthefirst-tried defendant. Hardy will discuss each opinion. Thompsonv. Calderon (9" Cir 1997) (en banc) 120 F.3d 1045, vacated the petitioner’ s conviction and executionorder because the prosecution argued inconsistent theories for the rape-murder in separate trials. (/d. at pp. 1045, 1056.) Initially, the Ninth Circuit denied relief, but then reversed the panel decision and reconsidered the matter en banc. In Thompson’s trial, which preceded his co-defendant’s trial, the prosecution argued Thompson was single-handedly responsible for raping the victim, then murdering herto cover up. (/d. at p. 1056.) In the co-defendant’s latertrial, the prosecution argued it was Thompson’s co-defendant Leitch who wasresponsible for the victim’s death because only Leitch had a motiveto kill the victim. (/bid.) 455 A plurality of the Ninth Circuit found that the inconsistency in the prosecution’s theories concerning motivesandperpetrators in Thompson’s and Leitch’s respective trials violated Thompson’s due process rights. Significantly, as in Hardy’s case, Thompsonwasthefirst-tried defendant. The plurality agreed that “it is well established that when no new significant evidence comes to light a prosecutor cannot, in order to convict two defendants at separatetrials, offer inconsistent theories andfacts regarding the same crime.”(/d. at p. 1058.) The United States Supreme Court vacatedthe Ninth Circuit decision on a different ground, concluding the court had abused its discretion by recalling its mandate in the absence of “extraordinary circumstances.” (Calderon v. Thompson (1998) 523 U.S. 538, 550 [118 S.Ct. 1489, 140 L.Ed.2d 728].) The High Court did not address the due process violation. The Sixth Circuit in the underlying case of Bradshaw v. Stumpf concluded the prosecution’s use of inconsistent theories in separate trials violated the due process rights of the defendant who wastried first. (Stumpf v. Mitchell (6" Cir. 2005) 367 F.3d 594, 595.) Thus, the Sixth Circuit vacated Stumpfs guilty plea and death sentence based on the prosecution’s “' As demonstrated in the discussion ofIn re Sakarias, ante, the same due process violation occurs whether the prosecution presents the inconsistent theories on guilt or penalty phase issues. 456 inconsistent theories in separate trials that Stumpf and his co-defendant each personally hadfired the fatal shot. (/d. at p. 613.) At Stumpf’s plea hearing, the prosecutor argued Stumpfshotthe victim four times, killing heras she sat on her bed. (/bid.) At the co-defendant’s later trial, the same prosecutor argued that Stumpffired, mistakenly believed he had killed the victim, and tossed the gun aside. Then,the prosecutor argued, the co-defendant picked up the gun Stumpfhaddiscarded andshotthe victim fourtimes, killing her as she sat on her bed. (/bid.) On appeal, the state argued that new evidence was discovered after Stumpf’s hearing, that is, evidence Stumpfdiscarded the gun after firing it, but without killing the victim. This “new evidence”led to the prosecution’s use ofinconsistent theories. ([bid.) In contrast, in Hardy’s case there can be no reasonable inference that the prosecution’s inconsistent theories was due to the discovery of“new evidence.” The majority ofevidence came from the defendants during pretrial statements and never changed. The prosecutor repeatedly announcedshe wasready fortrial, was dissatisfied with the delay, would not honorherpredecessor’s representations concerning which defendant would be tried first, and would go to trial first on whichever defendant wasfirst ready for trial. (2RT 191; 3RT 319-321; 4RT 573.) 457 The majority opinion in Bradshaw v. Stumpf,” and the separate concurrences of Justices Souter and Ginsburg, comment that inconsistent prosecution theories may constitute grounds for reversing the sentence imposed. (Bradshaw v. Stumpf, supra, 545 U.S. at p. 2408.) Only two ofnine justices found no dueprocess violation. Justice Thomas, whose concurring opinion was joined by Justice Scalia, appeared to conclude there was no due processviolation because “the Bill of Rights guarantees vigorous adversarial testing of guilt and innocence and conviction only by proof beyond a reasonable doubt. These guarantees are morethan sufficient to deter the State from taking inconsistent positions.” (/d. at p. 2410.) D. Hardy Was Prejudiced by the Prosecutor’s Inconsistent Theories. The Sixth Circuit majority opinion presumed prejudice from the prosecution’s use of inconsistent theories at separate trials. (Stumpf v. Mitchell, supra, 367 F.3d at p. 88.) The United States Supreme Court,in dicta, referenced the materiality of the inconsistency, suggesting some requirement to demonstrate a link betweentheprosecution’s inconsistency and the outcome “ The United States Supreme Court reversed the Sixth Circuit’s holding that Stumpf’s plea was not knowing, intelligent or voluntary. | (Bradshaw v. Stumpf, supra, 545 U.S. at p. 2407.) That issue in Bradshaw v. Stumpfis irrelevant to the issue Hardy raises, and therefore Hardy does not discuss that portion of the opinion. 458 (either verdict or sentence). (See e.g., Bradshaw v. Stumpf, supra, 545 U.S.at p. 2407.) The Ninth Circuit’s plurality decision in Thompson v. Calderon, supra, found the prosecution violated Thompson’srightto a fair trial when the prosecutor “manipulated evidence and witnesses, argued inconsistent motives, and at [the second] trial essentially ridiculed the theory [the prosecutor] had used to obtain a conviction and death sentence at Thompson’s trial.” (Thompsonv. Calderon, supra, 120 F.3d at p. 1057.) The plurality found the prosecution’s mere use of inconsistent theories violated due process and created a presumption of prejudice. Ud. at p. 1059.) Hardy wasprejudiced by the prosecutor’s inconsistent theories. To obtain the death penalty, the prosecutorrelied heavily on Hardy’s statusas the purported leader ofthe criminal activity resulting in Sigler’s death. Jurors necessarily would find the leader of the three men more culpable, and more deserving of death. The prosecutor argued Hardy wasthe leader, the oldest, the “big brother” to Armstrong. Hardy was in command,she said, and had control over the other two. (14RT 3146-3147.) This argument in support of the death penalty for Hardy was wholly inconsistent with the same prosecutor’s argument in support of the death penalty for Pearson. The argumentviolated the guidance ofAke v. Oklahoma, supra, 470 U.S. 68, 79, by gaining “a strategic advantage” over Hardy that “cast a pall on the 459 accuracy”ofthe outcome. This “strategic advantage” was exacerbated by the separate trials since only the prosecutor knew ofthe inconsistent theories she applied piecemeal to the defendants to achieve the maximum penalty. A sentence ofdeath is different because “execution is the most irremediable and unfathomable of penalties ....” (Ford v. Wainwright (1986) 477 U.S.399, 411 [106 S.CT. 2595, 91 L.ED. 2d 335] [plurality opinion discussing need for heightenedreliability in capital proceedings].) The inconsistent prosecution theories for culpability based on a theoretical leadership role requires reversal of the judgment of death. 460 xXx THE CUMULATIVE EFFECT OF GUILT AND PENALTY PHASE ERRORS WAS PREJUDICIAL AND WARRANTS REVERSAL OF HARDY’S DEATH SENTENCE. The cumulative effect of errors in Hardy’s case denied him fair trial on the issuesofguilt and penalty. The individualerrorsare set forth fully ante. While each error individually constitutes grounds for reversalor otherrelief, the cumulative effect of the errors together form an additional ground for reversal. The errors in Hardy’s trial cover the gamut, including improperjury selection, evidentiary and instructional issues, and penalty phase issues. The result of the errors was trial in the superior court in whichthe hallmarks of fundamentalfairness and due process were absent. Accordingly, thejudgment of death should be reversed. The cumulative effect oferrors in Hardy’s case denied Hardya fairtrial and violated his rights to due process. (Taylor v. Kentucky (1978) 436 U.S. 478, 487-488 [98 S.Ct. 1930, 56 L.Ed.2d 468] [cumulativeerrors as denial of due process rightto fair trial]; People v. Holt (1984) 37 Cal.3d 436, 459.) As demonstrated in this brief, the various guilt phase errors violated Hardy’s rights underthe Fifth, Sixth, Eighth and Fourteenth Amendmentsto the United States Constitution. In the penalty trial, Hardy was deprived of a fair and reliable determination ofpenalty underthe Fifth, Sixth, Eighth and Fourteenth 461 Amendments to the United States Constitution. Together, the cumulative effect of the errors was prejudicial. (People v. Hill (1998) 17 Cal. 4th 800, 844-845; Parle v. Runnels (9th Cir. 2007) 505 F.3d 922, 927; Phillips v. Woodford (9"" Cir. 2001) 267 F.3d 966, 985.) “Where, as here, there are a numberoferrors, ‘a balkanized, issue-by-issue harmless error review’ is far less effective than analyzing the overall effect of all the errors in the context ofthe evidenceintroducedattrial against the defendant. [Citations.]” (United States v. Frederick (9th Cir. 1996) 78 F.3d 1370, 1381.) The proper standard of prejudice when any one ofthe errors to be aggregated is constitutional, is that reversal ofthe judgmentis required unless the cumulative error is harmless beyond a reasonable doubt. (United States v. Toles (10" Cir. 2002) 297 F.3d 959, 972; in accord People v. Williams (1971) 22 Cal.App.3d 34, 50.) The standard is clearly met in this case. Evenifthis Court rules that preyudice must be measured by the standard for state court error, it is reasonably probable that the result in Hardy’s case would have been different, and more favorable to him,but for the multiple errors at every stage of the trial. The cumulative weight ofthe guilt and penalty phase errors was prejudicial to Hardy. Each error was compoundedby every othererror, and the cumulative effect was multiplied. In view of the number, type and magnitude of the errors in the superior court, Hardy’s case presents the 462 extraordinary situation where, the outcome would have been more favorable to him,andthetrial below resulted in a miscarriage ofjustice. (People v. Hill (1998) 17 Cal.4th 800, 844; Chapmanv. California, supra, 386 U.S.at p. 24.) The “sum of such errors was greater than the sum of the prejudice of each error standing alone.” (People v. Hill, supra, at p. 845.) Hence, the judgment of death should be reversed. 463 XXII THE JUDGMENT OF DEATH SHOULDBE SET ASIDE BECAUSE: (1) THE CALIFORNIA DEATH PENALTY STATUTE, AS A MATTER OF LAW, VIOLATES THE RIGHTTODUE PROCESS OFLAWINTHE FIFTHAND FOURTEENTH AMENDMENTS OF THE UNITED STATES CONSTITUTION, AND ARTICLEI, SECTION 15 OF THE CALIFORNIA CONSTITUTION, THE GUARANTEE OF THE RIGHT TO A JURY TRIAL IN THE SIXTH AND FOURTEENTH AMENDMENTS OF THE UNITED STATES CONSTITUTION,ANDARTICLE I, SECTION 15 OFTHE CALIFORNIA CONSTITUTION, THE PROHIBITION AGAINST THE IMPOSITION OF CRUEL AND UNUSUAL PUNISHMENT IN THE EIGHTH AND FOURTEENTH AMENDMENTS AND ARTICLE I, SECTION 17 OF THE CALIFORNIA CONSTITUTION; AND (2) THE IMPOSITION OF DEATHPENALTY, ASAMATTEROFLAW,VIOLATES THE AFOREMENTIONED CONSTITUTIONAL PROVISIONS A. Introduction and Summary of Argument. Manyfeatures of California’s capital sentencing scheme, alone or in combination with each other, violate the United States Constitution. Because previous challenges to most ofthese features have been rejected by this Court, these arguments are presented in an abbreviated fashion for the purpose of alerting this Court to the nature of each component claim and its federal constitutional grounds. Hardy also requests this Court’s reconsideration of each claim in the context of California’s entire death penalty system. 464 People v. Schmeck (2005) 37 Cal. 4th 240, 303-304, stated that “routine”challenges to California’s capital punishment schemewill be deemed “fairly presented” for purposes of federal review “even when the defendant does no morethan:(i) identify the claim in the context ofthe facts, (ii) note that we previously have rejected the sameor a similarclaim in a prior decision, and (iii) ask us to reconsider that decision.” In light of Schmeck, Hardy presents the following challenges to preserve these claims for federal review and urge their reconsideration. Should this Court reconsider prior decisions relative to any of these claims, Hardy requests the opportunity to present supplementalbriefing. This Court’s previous decisions have considered the following claims in isolation from one another. To the extent Hardy argues cumulative unconstitutionality, this argument presents a new claim. The U.S. Supreme Court hasstatedthat: “[t]he constitutionality of a State’s death penalty system turns on review ofthat system in context.” (Kansas v. Marsh (2006) 548 U.S. 163, 179 n. 6., [126 S.CT. 2516; 165 L.ED. 2d 429].) Marsh considered Kansas’s requirementthat death be imposedif ajury deemed the aggravating and mitigating circumstances to be in equipoise and on that basis concluded beyond a reasonable doubtthat the mitigating circumstances did not outweigh the aggravating circumstances. This was constitutionally acceptable,in light 465 of the overall structure of “the Kansas capital sentencing system,” which, as the court noted,“is dominated by the presumptionthatlife imprisonment is the appropriate sentence for a capital conviction.” (Marsh, supra. 126 S.Ct. at 2527; See also Pulley v. Harris (1984) 465 U.S. 37, 51 [104 S.Ct. 871; 79 L.ED. 2d 29] [while comparative sentence proportionality review is not an essential component of every constitutional capital sentencing scheme, a capital sentencing scheme maybeso lacking in other checks on arbitrariness that it would not pass constitutional muster without such review].) Thus, even if individual components of a death penalty scheme can be deemedconstitutional in isolation from one another, a reviewing court must also consider the cumulative operation of the entire scheme. Hardy requests this Court consider the defects in the California scheme, “in context” and collectively, to hold that the cumulative operation of the scheme is unconstitutional. Primarily, Hardy avers California’s sentencing schemeis so broadinits definitions of death-eligible defendants, and so lacking in procedural safeguards,that it fails to provide a meaningfulorreliable basis for selecting the relatively few offenders subjected to capital punishmentin violation ofthe Fifth, Sixth, Eighth, and Fourteenth Amendments.In light ofthe ever-growing number of grounds for death-eligibility described currently in 22 distinct 466 subdivisions of section 190.2, nearly every murder in California permits a prosecutor to seek the death penalty. The fact that very few defendants actually receive the death penalty manifests an arbitrary and capricious selection process. The overbreadthis not limited to the categories of death- eligible offenders described by the special circumstances iterated in section 190.2. (See discussion, post.) Additionally, beyond the indiscriminate selection process, there are no procedural safeguards during the penalty phase enhancingthereliability ofthat trial’s outcome. Instead, factual prerequisites to the imposition of the death penalty are found byjurors whoare notinstructed on any burdenofproof, who may notand need not agree with each other, and whoare not required to make any findings. Paradoxically,the fact that “death is different” has been turned on its head to meanthat procedural protections taken for granted in guilt trials for lesser criminal offenses are unavailable when the question is a finding foundational to the imposition of death. The result is truly a “wanton and freakish” system that randomly chooses from among the thousands of murderers in California a few scapegoats to be put to death. 467 B. The Categories of Special Circumstances Described in Penal Code Section 190.2 Fail to Meaningfully Narrow the Class of First Degree Murderers Who MayReceive the Death Penalty. To be constitutionally valid, a state death penalty scheme must provide a meaningful basis for distinguishing the few cases in whichthe death penalty is imposed from the many cases in which it is not. (People v. Edelbacher (1989) 47 Cal.3d 983, 1023, citing Furman v. Georgia (1972) 408 U.S. 238, 313 (conc. opn. of White, J.). Meeting this criteria requires a state genuinely to narrow,by rational and objective criteria, the class ofmurdererseligible for death. (Zant v. Stephens (1983) 462 U.S. 862, 878 [103 S.CT. 2733; 77 L.ED. 2d 235.]) California’s capital sentencing scheme does not meaningfully narrow the pool ofmurdererseligible for the death penalty. This is particularly true when,as here, the underlying verdict of guilt of first degree murderis based upon a legislative classification, such as drive-by murder, which includes conduct traditionally treated as second degree murder, i.e., rash, impulsive killings. It bears repeating that the guilt phase jury in this case was not required to find premeditation in order to reach the verdictit returned. This Court’s previous decisions concluded the requisite narrowing in California’s death penalty scheme is accomplished by the “special circumstances”set out in section 190.2. (People v. Bacigalupo (1993) 6 Cal. 4th 457, 468.) However, the special circumstances are so numerous, and 468 common to many violent crimes against persons that special-circumstance murder in the statute now makes almost every murderereligible for death at the whim of the prosecutor’s discretion. This Court should reconsider and overrule its prior precedent, and hold that section 190.2, subdivision (a), is so broadthatit fails to adequately narrow the set ofmurderseligible for death, in violation of the Eighth and Fourteenth Amendments. OF The Broad Application of Section 190.3, Factor (A), Allowing a Jury to Treat Any Circumstance ofthe Crime as Aggravation, Violated Hardy’s Constitutional Rights. Section 190.3, subdivision (a), directs the jury to consider in aggravation the “circumstances of the crime.” That statutory provision was explained to jurors with CALJIC No. 8.85, given in the penalty trial, in pertinent part as follows: In determining which penalty is to be imposed on defendant, you shall consider all of the evidence which has been received during any part of the trial of this case, [except as you may be hereafter instructed]. You shall consider, take into account, and be guided by the following factors, if applicable: (a) the circumstance ofthe crime with which the defendant was convicted in the present proceedings and the existence of any special circumstance[s] found to be true. (3CT 623.) The instruction provided jurors no guidance whatsoever concerning what facts should be deemed aggravating and which should be deemed mitigating or neutral. There is no objective consensus on these issues 469 in the real world. (See e.g., Montana v. Egelhoff(1996) 518 U.S. 37, at pp. 45-47, [116 S.CT. 2013; 135 L.ED. 2d 36] [the fact ofdefendant’s intoxication is treated at commonlaw by somejurisdictions as enhancing culpability and by others as diminishing culpability].) Ege/hoffreasonedstates are free to treat intoxication as irrelevant to the severity of an offense because of the lack of consistency in the common law’s treatment of intoxication as mitigating or aggravating. Asa result ofthe broad and indefinite classification of “circumstances ofthe offense,” prosecutors can argue in aggravation almost every conceivable circumstanceofthe crime, even thosethat, from case to case, reflect starkly opposite circumstances. In this case, the prosecution relied on factor (a) in support ofits call for death. It relied on “victim impact evidence,” presented movingly through the testimony of Sigler’s son. This Court has held “victim impact” comes within the ambit the “circumstances of the crime.” (Peoplev. Zamudio (2008) 43 Cal. 4th 327, 324-325.) There always will be victim impact with every murder. It will always be emotionally charged, and usually heartbreaking. The prosecution also relied on Hardy’s supposed bad character including his robbery conviction, allegedly stabbing his young son, and gang affiliation and moniker of “Little No Good.” (14RT 3137-3139, 3145.) This evidence was presented even though no nexus was shown between any ofit 470 and Hardy’s role in the offense. The prosecution also relied heavily on Hardy’s purported role as the leader. (14RT 3144-3147.) In fact, very little, almost nothing, was actually known about the circumstances of the offense. Butsection 190.2 made speculation convenient for the prosecutor. These, and other, argumentsillustrate the unlimited reach of section 190.3, subdivision (a). This Court has not yet applied a limiting construction to factor (a) despite previous requests. (People v. Blair (2005) 36 Cal. 4th 686, 749.) The “circumstances of the crime” factor can hardly be called “discrete.” (See Brown v. Sanders (2006) 546 U.S. 212, 222 [126 S.CT. 884; 163 L.ED. 2d 723]: [United States Supreme Court finds that lower federal court misdescribed California death penalty schemeas preventing sentencer “from considering evidence in aggravation other than discrete, statutorily-defined factors.”] The concept of “aggravating factors” has been applied in such a wanton and freakish manner that almost all contextual features of every murdercan be and have been characterized by prosecutors as “aggravating.” As a result, California’s capital sentencing scheme violates the Fifth, Sixth, Eighth, and Fourteenth Amendmentsto the United States Constitution because it permits thejury to assess death upon nobasis other than “that a particularset of facts surrounding a murder, ... were enough in themselves, and without 471 some narrowingprinciplesto apply to those facts, to warrant the imposition of the death penalty.” See Maynardv. Cartwright, supra, 486 U.S. 356, 363; but see Tuilaepa v. California (1994) 512 U.S. 967, 987-988 [114 S.Ct. 2630, 129 L.Ed.2d. 750 512 U.S. 967][rejecting “vagueness” challenge to factor(a)]). This Court hasrejected the claim that permitting thejury to considerthe “circumstancesofthe crime”results in the arbitrary and capricious imposition ofthe death penalty. (People v. Kennedy (2005) 36 Cal. 4th 595, 641.) Hardy urges the Court to reconsiderthis decision. D. Useofa “So Substantial” Standardto Describe Aggravating Circumstances Warranting a Verdict of Death Is Impermissibly Vague. The question whether to impose the death penalty upon Hardy hinged on whetherthejurors were “persuadedthat the aggravating circumstancesare so substantial in comparison with the mitigating circumstancesthat it warrants death instead of life without parole.” (3CT 637; CALJIC No. 8.88.) The phrase “so substantial”is an impermissibly broad phrase that does not channel or limit the sentencer’s discretion in a mannersufficient to minimizethe risk ofarbitrary and capricious sentencing. Consequently, this instruction violates the Eighth and Fourteenth Amendments becauseit creates a standard that is vague and directionless. (See Maynard v. Cartwright, supra, 486 US. 356, 362.) 472 The substantiality or existence of aggravating factors was a contested issue during the penalty trial jury. As but one example, defense counsel attempted to exclude the prosecution’s evidence concerning Hardy’s participation in a ganginitiation rite on the same night of the murder. (13RT 2896.) The “jumping in” was not witnessed by anyone, but the prosecution speculated the act was violent even though the new member showed no injuries. (See 14RT 3040, 3084.) This evidence is but one example that the error is not an abstraction in the context ofthis case. This Court has previously concluded that the use of the phrase “so substantial” does not renderthe instruction constitutionally deficient. (People v. Breaux (1991) 1 Cal. 4th 281, 316, fn. 14.) Hardy asks this Court to reconsider that conclusion. E. The Use of Restrictive Adjectives in the List of Potential Mitigating Factors Impermissibly Restricted Consideration of Mitigation by Hardy’s Jury. The inclusion in the list of potential mitigating factors of such adjectives as “extreme”(see factors (d) and (g)) and “substantial” (see factor (g)) actedas barriers to the meaningful consideration ofmitigation in violation ofthe Fifth, Sixth, Eighth, and Fourteenth Amendments. (Mills v. Maryland (1988) 486 U.S. 367 [108 S.CT. 1860; 100 L.ED. 2d 384]; Lockett v. Ohio (1978) 438 U.S. 586 [98 S.CT. 2954; 57 L.ED. 2d 973]. These adjectives are 473 contained in CALJIC No. 8.85, which was given to Hardy’s jury. (3CT 623- 624.) Hardy acknowledges that this Court has previously rejected this argument in People v. Avila (2006) 38 Cal. 4th 491, 614, but urges reconsideration of that conclusion. F. The Failure to Instruct That Statutory Mitigating Factors Were Relevant Solely as Potential Mitigators Precluded a Fair, Reliable, and Evenhanded Application of the Capital Sentencing Decision. As a matter of state law, each of the sentencing factors introduced by a prefatory “whether or not” - factors (d), (e), (f), (g), (h), and (j) - were relevant solely as possible mitigators. (People v. Hamilton (1989) 48 Cal. 3d 1142, 1184; People v. Edelbacher, supra, 47 Cal.3d 983, 1034.) The jury, however, was left free to conclude that a “not” answer to any of these “whether or not” sentencing factors established an aggravating circumstance, and was thus invited to aggravate the sentence uponthe basis of non-existent and/or irrational aggravating factors, thereby precluding the reliable, individualized capital sentencing determination required by the Eighth and Fourteenth Amendments. (Zant v. Stephens, supra, 462 U.S. 862, 879.) The fact that this Court and the Legislature intended that the specified factors be solely mitigating is not the measure of their effect on a jury. The effect of an instruction on a jury is assessed by whether a reasonable juror could understand the instruction in an unconstitutional manner. (Boyde v. 474 California, supra, 494 U.S. 370, 380; Francis v. Franklin, supra, 471 U.S. 307, 325.) “This analysis ‘requires careful attention to the words actually spoken to the jury .. . , for whether a defendant has been accorded his constitutional rights depends upon the way in which a reasonable juror could 399have interpreted the instruction.’” (Francis v. Franklin, supra, 471 U.S.at 315, quoting Sandstrom v. Montana (1979) 442 U.S. 510 at 514.) Further, the jury was also left free to aggravate a sentence upon the basis of an affirmative answerto one ofthese questions, and thus, to convert mitigating evidence (for example, evidence establishing a defendant’s mental illness or defect) into a reason to aggravate a sentence, in violation of both state law and the Eighth and Fourteenth Amendments. (But see People v. Morrison (2004) 34 Cal 4th 698, 730: “instruction to the jury to consider “whetheror not’ certain mitigating factors were present did not impermissibly invite the jury to aggravate the sentence upon the basis of nonexistent or irrational aggravating factors.”) The very real possibility that Hardy’s penalty trial jury aggravated his sentence on the basis of “nonstatutory aggravation” including an absence of mitigating factors deprived him ofan importantstate-law generated procedural safeguard andliberty interest - the right not to be sentenced to death except uponthe basis of statutory aggravating factors. (See People v. Boyd, supra, 475 38 Cal 3d 762, 772-775.) That possibility violated Hardy’s Fourteenth Amendmentright to due process. (See Hicks v. Oklahoma, supra, 447 U.S. 343; Fetterly v. Paskett (9th Cir. 1993) 997 F.2d 1295, 1300: [holding that Idaho law specifying manner in which aggravating and mitigating circumstancesare to be weighedcreated a liberty interest protected under the Due Process Clause ofthe Fourteenth Amendment]; and Campbell v. Blodgett (9th Cir. 1992) 997 F.2d 512, 522 (same analysis of Fetterly, supra, applied to State of Washington capital sentencing statutes).) The failure of the instruction to limit mitigation evidence solely to mitigation violated not only state law, but the Eighth Amendment,for it made it likely the jury treated Hardy “‘as more deserving ofthe death penalty than he might otherwise be by relying upon... illusory circumstance[s].” (Stringerv. Black (1992) 503 U.S. 222, 235, [112 S.CT. 1130; 117 L.ED. 2d 367].) “Capital punishment [must] be imposed fairly, and with reasonable consistency, or notat all.” (Eddings v. Oklahoma, supra, 455 U.S. 104, 112.) Whether a capital sentence is to be imposed cannot be permitted to vary accordingtojuries’ potentially mistaken understandings ofhow manyfactors the law permits them to weigh on death’s side ofthe scale. 476 G. The Death Sentence Is Unconstitutional Because it Is Not Premised on Findings Made Beyond a Reasonable Doubt. California law does not require a jury to apply a reasonable doubt standard during any part of the penalty phase, except as to proof of prior criminal misconduct offered under section 190.3 (b). (CALJIC Nos. 8.86, 8.87; see People v. Anderson (2001) 25 Cal. 4th 543, 590; People v. Fairbank (1997) 16 Cal. 4th 1223, 1255.) Hardy’s penalty trial jury wasnottold it had to find beyond a reasonable doubt that aggravating factors in this case outweighed the mitigating factors before determining whetherornot to impose a death sentence. It was nottold that it had to find aggravating factors other than prior criminality proven beyond a reasonable doubt (for example, that Hardy took a leadership role in a gang.) This Court has approved ofthis process. (See People v. Hawthorne (1992) 4 Cal. 4th 43, 79.) After this Court decidedHawthorne, the United States Supreme Court’s decisions in Cunningham v. California (2007) 549 U.S. 270, [127 S.CT. 856; 166 L.ED. 2d 856]; Blakely v. Washington (2004) 542 U.S. 296, [124 S.CT. 2531; 159 L.ED. 2d 403]; and Ring v. Arizona (2002) 536 U.S. 584, [122 S.CT. 2428; 153 L.ED. 2d 556], required any fact that is used to support an increased sentence (other than a prior conviction) be submitted to a jury and proved beyond a reasonable doubt. Ring, in particular, applies to capital sentencing decisions. 477 In Ring, the Supreme Court struck down Arizona’s death penalty scheme, which authorized a judge sitting without a jury to sentence a defendant to death if there wasat least one aggravating circumstance and no mitigating circumstancessufficiently substantial to call for leniency. (/d., 536 USS. at 593, 617.) It held that any factual finding whichincreasesthe possible penalty is the functional equivalent ofan elementofthe offense, regardless of when it must be found or what nomenclature is attached; the Sixth and Fourteenth Amendmentsrequire that it be found by ajury beyond a reasonable doubt. Unquestionably, California statutory law andjury instructions require fact-finding by a jury during a post-conviction penalty phase before the decision to impose death or a lesser sentenceis finally made. As a prerequisite to the imposition ofthe death penalty, section 190.3 requires the“trier of fact” to find that at least one aggravating factor exists and that such aggravating factor(or factors) substantially outweigh any andall mitigating factors. Asset forth in California’s “principal sentencing instruction” (People v. Farnam (2002) 28 Cal. 4th 107, 177), which wasread to the jury in this case, “An aggravating factoris any fact, condition or event attending the commission of a crime which increases its guilt or enormity, or adds to its injurious 478 consequences which is above and beyond the elements of the crimeitself.” (3CT 636; CALJIC No.8.88.) Thus, before the process of weighing aggravating factors against mitigating factors can begin, the presence of one or more aggravating factors must be found by the jury. Before the decision whetheror not to impose death can be made,thejury must find that aggravating factors substantially outweigh mitigating factors. These factual determinations are essential prerequisites to death-eligibility, but do not mean that death is the inevitable verdict; the jury can still reject death as the appropriate punishment notwithstanding these factual findings. In People v. Loker (2008) 44 Cal. 4th 691, 755, this Court held that, notwithstanding Cunningham, Blakely, and Ring, a California defendant has no federal constitutional right to a jury finding beyond a reasonable doubtas to the facts supporting a death sentence. Hardy respectfully requests that this Court reconsiderits decision in Loker. “If a State makes an increase in a defendant’s authorized punishment contingenton the finding ofa fact, that fact - no matter how the State labels it - must be found by ajury beyond a reasonable doubt.” (Ring, supra, 530 U.S. at 604.) The Sixth Amendment’sapplicability hinges on whetheras a practical matter, the sentencer must make additional factual findings during the penalty 479 phase before determining whetheror not the death penalty can be imposed. In California, as in Arizona, the answeris “Yes.” Ring and Cunningham require the requisite fact-finding in the penalty phase to be made unanimously, and beyond a reasonable doubt,asto all facts, not just those alleged under section 190.3, subdivision (b), that a jury may consider in aggravation. H. The Death Sentence Is Unconstitutional Because it Is Not Premised on Findings Made by a UnanimousJury. Imposing a death sentence violates the Sixth, Eighth, and Fourteenth Amendments whenthere is no assurance the jury, or even a majority of the jury, ever found a single set ofaggravating circumstances warranting the death penalty. (See Woodson v. North Carolina (1976) 428 U.S. 280, 305, [96 S.CT. 2978; 49 L.ED. 2d 944].) tury unanimity ... is an accepted, vital mechanism to ensure that real and full deliberation occurs in the jury room, andthat the jury’s ultimate decision will reflect the conscience of the community.” (McKoy v. North Carolina (1990) 494 U.S. 433, 452, [110 S.CT. 1227; 108 L.ED. 2d 369] (conc. opn. ofKennedy,J.).) Despite these federal precedents, this Court “has held that unanimity with respect to aggravating factors is not required by statute or as a constitutional procedural safeguard.” (Peoplev. Taylor (1990) 52 Cal. 3d 719, 749.) Hardy respectfully requests that this Court reconsider its conclusion that non-unanimous findings regarding facts in aggravation are sufficient to allow imposition of a death penalty. 480 The failure to require jury unanimity also violates the equal protection clause of the federal Constitution. In California, when a criminal defendant has been charged with specialallegations that may increase the severity ofhis sentence, the jury must render a separate, unanimousverdict on the truth of such allegations. (See, e.g., Pen. Code 5 1158a). Since capital defendants are entitled to morerigorousprotections than those afforded noncapital defendants (see Monge v. California (1998) 524 U.S. 721, 732 [118 S.CT. 2246; 141 L.ED. 2d 615]; Harmelin v. Michigan (1991) 501 U.S. 957, 994 [111 S.CT. 2680; 115 L.ED.2d 836]), and since providing more protectionto a noncapital defendant than a capital defendant violates the equal protection clause of the Fourteenth Amendment (Myers v. Yist (9th Cir. 1990) 897 F.2d 417, 421), it followsthat unanimity with regard to aggravating circumstancesis required by the equal protection clauses of the Fifth and Fourteenth Amendments. This Court has acknowledged that other-crimes evidencein a penalty phase of a capital trial often has “a substantial impact on the jury’s determination whether the defendant should live or die” (People v. Medina (1995) 11 Cal. 4th 694, 763-764.) To require jury unanimity respecting an enhancingallegation that adds a year to a defendant’s sentence(see,e.g., § 12022), but not as to facts likely to cause a jury to choose death overlife imprisonment, violates the right to equal protection,andbyits irrationality also 481 violates both the due process and cruel and unusual punishmentclausesofthe federal Constitution, as well as the Sixth Amendment’s guaranteeofatrial by jury. The failure to require unanimity cannot be deemed harmlessin a case such as this, where the prosecution presented evidence of at least five unadjudicated criminal offenses, occurring on separate occasions, and to which Hardy hadindividual and separate defenses. There is a reasonable possibility that the jurors found a “patchwork” of aggravating facts upon which notrue consensus wasever reached by the jury as a whole. I. The Instructions Violated Hardy’s Right to Due Process by Failing to Assign a Burdenof Proof. California law providesthat the prosecution alwaysbears the burden of proofin a criminal case. (Evid. Code, § 520.) Thatstatute creates a legitimate state expectation as to the way a criminal prosecution will be decided, and therefore Hardyis constitutionally entitled to the burden ofproofprovided by that statute. (Cf. Hicks v. Oklahoma (1980) 447 U.S. 343, 346 [100 S.CT. 2227; 65 L.ED. 2d 175].) Accordingly, the jury should have been instructed that the prosecution had the burden ofpersuasion regarding (1) the existence of any factor in aggravation,*’ (2) whether aggravating factors outweighed “> Jurors were instructed they hadto be “satisfied beyonda reasonable doubt” that Hardy previously had been convicted of attempted robbery, and committed wilful cruelty to a child (the stabbing incident involving Hardy’s son). (3CT 634-635.) 482 mitigating factors, and (3) the appropriateness ofthe death penalty, and (4)that it was presumedthat life without parole was the appropriate sentence. This Court has held that capital sentencing is not susceptible to burdens of proof or persuasion because the task is largely moral and normative, and thus is unlike other sentencing. (People v. Lenart (2004) 32 Cal. 4th 1107, 1136-1137. This Court also has rejected any instruction on the presumption of life. (People v. Arias (1996) 13 Cal. 4th 92, 190.) Hardyis entitled to jury instructions that comport with the federal Constitution and thus urges the court to reconsider these decisions. J. The Instructions Failed to Inform the Jurors That If They Determined That Mitigation Outweighed Aggravation, They Were Required to Return a Sentence of Life Without the Possibility of Parole. Section 190.3 directs a jury to impose a sentence oflife imprisonment without parole when the mitigating circumstances outweigh the aggravating circumstances. This mandatory languageis consistent with the individualized consideration ofa capital defendant’s circumstancesthat is required underthe Eighth Amendment. (See Boyde v. California, supra, 494 U.S. 370, 377.) Yet, CALJIC No. 8.88 does not address this proposition, but only informsthe jury of circumstancesthat permit the rendition of a death verdict. By failing to conform to the mandate of section 190.3, the instruction violated Hardy’s 483 right to due process of law. (See Hicks v. Oklahoma, supra, 447 U.S.at p. 346.) This Court has held that because CALJIC No. 8.88 tells the jury that death can be imposedonlyifit finds that aggravation outweighs mitigation,it is unnecessary to instruct on the converse principle. (People v. Duncan (1991) 53 Cal. 3d 955, 978; see also People v. Kipp (1998) 18 Cal. 4th 349, 381: [“We have determinedthat the trial court need not expressly instruct the jury that a sentence of life imprisonment without parole is mandatory if the aggravating circumstances do not outweigh those in mitigation.”].) Hardy respectfully requests that this Court reconsiderits decisions in Duncan and Kipp. Hardy submits this holding conflicts with numerouscases disapproving instructions that emphasize the prosecution theory of the case while ignoring or minimizing the defense theory. (See People v. Moore (1954) 43 Cal.2d 517, 526-529; People v. Kelley (1980) 113 Cal. App. 3d 1005, 1013-1014; see also People v. Rice (1976) 59 Cal. App. 3d 998, 1004 [instructions required on every aspect of case].) It also conflicts with due process principles in that the non-reciprocity involved in explaining how a death verdict may be warranted, but failing to explain when an LWOPverdictis required, tilts the balance of forces in favor ofthe accuser and against the accused. (See Wardius v. Oregon (1973) 412 U.S. 470, 473-474 [93 S.CT. 2208; 37 L.ED. 2d 82.]) 484 K. The California Sentencing Scheme Is Constitutionally Defective in Failing to Require That the Penalty Jury Make Written Findings. The failure to require written, or other specific, findings by the jury regarding aggravating factors deprived Hardy ofhis federal due process and Eighth Amendment rights to meaningful appellate review. (California v. Brown, supra, 479 U.S. 538 at p. 543; Gregg v. Georgia (1976) 428 U.S. 153, 195, [96 S.CT. 2909; 49 L.ED. 2d 859.]) Because Californiajuries havetotal discretion without any guidance on how to weigh potentially aggravating and mitigating circumstances (People v. Fairbank, supra, 16 Cal. 4th 1223, 1255- 1256), there can be no meaningful appellate review without written findings becauseit will otherwise be impossible to “reconstructthe findings ofthe state trier of fact.” (See Townsendv. Sain (1963) 372 US. 293, 313-316 [83 S.CT. 745; 9 L.ED. 2d 770]: [failure of state court to make express findingsrelative to imposition of capital sentence may require federal court on habeas review to hold hearings].)“ This Court hasheld that the absence ofwritten findings by the sentencer does not render the 1978 death penalty scheme unconstitutional. (People v. Fauber (1992) 2 Cal. 4th 792, 859; People v. Rogers (2006) 39 Cal. 4th 826, “4 Townsend wasoverruled on a different point in Keeney v. Tamayo-Reyes (1992) 504 USS.1, [112 S.CT. 1715; 118 L.ED. 2d 318]. 485 893.) Hardy respectfully requests that this Court reconsiderits decisions in those cases. Ironically, such express findings are otherwise consideredby this Court to be an element of due process so fundamental that they are even requiredat parole suitability hearings. A convicted prisoner whobelievesthat he or she was improperly denied parole must proceedvia a petition for writ of habeas corpusandis required to allege with particularity the circumstances constituting the State’s wrongful conduct and show prejudice flowing from that conduct. (Un re Sturm (1974) 11 Cal. 3d 258.) The parole board is therefore requiredto state its reasons for denying parole: “It is unlikely that an inmate seeking to establish that his application for parole was arbitrarily denied can make necessary allegations with the requisite specificity unless he has some knowledgeofthe reasons therefor.” (in re Sturm, supra, 11 Cal. 3d at p. 267.) The sameanalysis applies to the far graver decision to put someone to death. In anon-capitalcase, the sentenceris required by California law tostate on the record the reasons for the sentence choice. (§1170, subd. (c).) Capital defendants are entitled to more rigorous protections than those afforded non-capital defendants. (Harmelin v. Michigan, supra, 501 U.S.at p. 994.) Since providing more protection to a non-capital defendant than a capital defendant violates the equal protection clause of the Fourteenth Amendment 486 (see generallyMyers v. Yist, supra, 897 F.2d 417, 421; Ring v. Arizona, supra), the sentencer in a capital case is constitutionally required to identify for the record the aggravating circumstances found and the reasons for the penalty chosen. Written findings are essential for a meaningful review ofthe sentence imposed. (See Mills v. Maryland , supra, 486 U.S. 367, 383, fn. 15.) Even where the decision to impose death is “normative” (People v. Demetrulias (2006) 39 Cal. 4th 1, 41-42) and “moral” (People v. Hawthorne, supra, 4 Cal. 4th at p. 79), the basis for the decision can be, and should be, articulated. The importance ofwritten findings is recognized throughoutthis country; post-F'urmanstate capital sentencing systems commonly require them. Further, written findings are essential to ensure that a defendant subjected to a capital penalty trial under section 190.3 is afforded the protections guaranteed by the SixthAmendment rightto trial by jury.* There are no other procedural protections in California’s death penalty system to compensate for the unreliability inevitably produced bythe failure to require a statement of reasons for imposing death. (See Kansas v. Marsh, supra.) The failure to require written findings thus violated not only federal “5 For example, had the jury made written findings that Hardy was a leader within a criminal street gang, it would be clear that the jury relied on an impermissible basis to select death. Asit stands, a reviewing court can only guessat the extent to which the “gang” evidence influencedthe jury. 487 due process and the Eighth Amendment, but also the right to trial by jury guaranteed by the Sixth Amendment. L. The California Sentencing Scheme Is Constitutionally Defective in Failing to Require Inter-case Proportionality Review. The Eighth Amendment to the United States Constitution forbids punishmentsthat are cruel and unusual. The jurisprudence that has emerged applying this prohibition to the process by which death is selected as a punishment has required that death judgments be both proportionate to one another and to the underlying facts, and reliable. One commonly utilized mechanism for helping to ensure reliability and proportionality in capital sentencing is comparative proportionality review -- a procedural safeguard this Court has expressly rejected. In Pulley v. Harris, supra, 465 U.S. at p. 51, the High Court, while declining to hold that comparative proportionality review is an essential component of every constitutional capital sentencing scheme,noted the possibility that “there could be a capital sentencing scheme so lacking in other checksonarbitrariness that it would not pass constitutional muster without comparative proportionality review.” California’s 1978 death penalty statute, as drafted and as construed by this Court, and applied in fact, has become just such a sentencing scheme. Harris, supra, in contrasting the 1978 statute with the 1977 law which the 488 court upheld against a lack-of-comparative-proportionality-review challenge, itself noted that the 1978 law had “greatly expanded” the list of special circumstances that make convicted murdererseligible for the death sentence. (d., 465 U.S.at p. 52, fn. 14.) In particular, none of this Court’s previous decisions have addressed the problem of applying a multiple murder special circumstance to first degree murder convictions that may have bypassed findings that the killings were premeditated and deliberate, such as by application of the “drive by”first degree murder provisions. The ever-expanding list of special circumstances conferring death- eligibility fails to meaningfully narrow the pool of death-eligible defendants and hence permits the samesort of arbitrary sentencing as the death penalty schemesstruck down in Furman v. Georgia, supra. As argued in subsections B through J of this Argument, ante, the statutory scheme lacks numerous other procedural safeguards commonly utilized in other capital sentencing jurisdictions, and the statute’s principal ’penalty phase sentencing factor, the “circumstances of the crime,” is an invitation to arbitrary and capricious sentencing. Viewing the lack of comparative inter-case proportionality review in the context of the entire California sentencing scheme,as required by federal constitutional principles (see Kansas v. Marsh, supra), that schemeis alternatively unconstitutional. 489 Section 190.3 itself does not require that either the trial court or this Court undertake a comparison betweenthis and other similar cases regarding the relative proportionality of the sentence imposed, i.e., inter-case proportionality review. (See People v. Fierro, supra, | Cal. 4th 173 at p. 253.) Thestatute also doesnot forbid it. The prohibition on the consideration ofany evidence showing that death sentences are not being charged or imposed on similarly situated defendants isstrictly the creation of this Court. (See,e.g., People v. Marshall (1990) 50 Cal. 3d 907, 946-947.) This Court’s categorical refusal to engagein inter-case proportionality review now violates the Eighth Amendment, even if it did not do so previously. M. Imposition of the Death Penalty Currently Violates the Eighth and Fourteenth Amendments to the United States Constitution Becauseit Is Contrary to International Norms of Humanity and Decency. The United States stands as one of a small number ofindustrially- developed, democratic nations that regularly uses the death penalty as a form of punishment. (Soering v. United Kingdom: Whether the Continued Use of the Death Penalty in the United States Contradicts International Thinking (1990) 16 Crim. and Civ. Confinement 339, 366.) Indeed, all nations of Western Europe have now abolished the death penalty. (Amnesty International, “The Death Penalty: List of Abolitionist and Retentionist 490 Countries” (Nov. 24, 2006), on Amnesty International website [www.amnesty.org].) This Court and the United States Supreme Court have previously rejected claimsthat the use ofthe death penalty at all, or, alternatively, that the regular use of the death penalty violates international law, the Eighth and Fourteenth Amendments,or “evolving standards ofdecency” (Trop v. Dulles (1958) 356 US. 86, 101 [78 S.Ct. 590; 2 L.Ed. 2d 630]; People v. Cook (2006) 39 Cal. 4th 566, 618-619; People v. Ghent (1987) 43 Cal. 3d 739, 778-779.) Those claims were presented in a historical context that no longer exists. Standards ofdecency that inform the Eighth and Fourteenth Amendments are neverstatic. (Trop, supra, at 101.) Thus, Hardy’s claim that the death penalty currently violates international norms of humanity and decency must be evaluated differently than they were evaluated in prior cases. In light ofthe international community’s overwhelmingrejection ofthe death penalty as a regular form ofpunishment and the United States Supreme Court’s recent decision citing international law to support its decision prohibiting the imposition of capital punishment against defendants who committed their crimes as juveniles (Roper v. Simmons (2005) 543 U.S. 551, 554, [125 S.Ct. 1183; 161 L.Ed. 2d 1]), Hardy urges the Court to hold the death penalty unconstitutional because, among other things, it violates the 491 “evolving standards ofdecency that mark the progress of a maturing society” (Trop, 356 U.S. at 101), and a violation of international law. “When the law punishesby death,it risks its own sudden descentinto brutality, transgressing the constitutional commitment to decency and restraint.” (Kennedy v. Louisiana (2008) __ U.S. __, [128 S.Ct. 2641, 2650, 171 L.Ed. 2d 525] [holding that imposition of death penalty for aggravated child rape is disproportionate and violates theEighth Amendment.].) 492 CONCLUSION Hardy was denied his First, Fifth, Sixth, Eighth, and Fourteenth Amendmentrights guaranteed by the United States Constitution in respect to both the guilt and penalty trials. The foregoing errors deprived Hardy ofhis right to a meaningful determination of guilt and a reliable determination of penalty. Accordingly, the judgment of guilt must be reversed. Alternatively, the judgment of death must be vacated. Respectfully submitted, DATED:June 10, 2013 SUSAN K. S$ ER Attorney for appellant c:\Hardy\hardy.aob.FINAL.Tables 493 CERTIFICATE OF APPELLATE COUNSEL PURSUANTTO RULE8.360(B)(1), CALIFORNIA RULES OF COURT I, SUSANK. SHALER,appointed counsel for appellant herebycertify, pursuant to Rule 8.630(b), California Rules of Court, that I prepared the foregoing brief on behalf of my client. I calculated the word count for the briefin the word-processing program Corel WordPerfect X4. The word count for the brief is 112,279, including footnotes, but not including the cover or tables. Because the briefdoes not comply with the rule, which limits the word count to 102,000, appellant previously filed a motion seeking leavetofile an oversized brief, which this Court granted on April 30, 2013. I certify that I preparedthis brief and this is the word count WordPerfec erated for thi brief. Dated: June 10, 2013 SUSAN K. SHALER PROOF OF SERVICE STATE OF CALIFORNIA, COUNTY OF SAN DIEGO Treside in the county ofSAN DIEGO,State of California. I am over the age of 18 and nota party to the within action. My business address is: Susan K. Shaler Professional Law Corporation, 991 Lomas Santa Fe Dr., Ste C, #112, Solana Beach, CA 92075. On June 11, 2013, I served the foregoing documentdescribed as: APPELLANT’S OPENING BRIEF onall parties to this action by placing a true copy thereof enclosed ina sealed envelope or box addressed as follows: Clerk, California Supreme Court Clerk, Superior Court 350 McAllister St. Los Angeles County San Francisco, CA 94102 Long Beach Courthouse 415 W Ocean Blvd Kamala D.Harris Attommey General Long Beach, CA 90802 300 S. Spring St. District Attorney North Tower, Ste 5001 Los Angeles County Los Angeles, CA 90013 Clara Shortridge Foltz Crim. Justice Ctr 210 West Temple St California Appellate Project Attn: Ms. Linda Robertson Los Angeles, CA 90012 101 Second Street, 6th Floor Mr. Robin Yanes San Francisco, CA 94105 Attorney at Law 13110 W. Washington Blvd., Ste A Mr. Warren J. Hardy Los Angeles, CA 90066 T80906 San Quentin State Prison San Quentin, CA 94974 I caused such envelope or box with prepaid shipping via Federal Expressto be sent to the California Supreme Court, andto all others with postage thereon fully prepaid to be placed in the United States Mail at Solana Beach, California. Executed on June 11, 2013, at Solana Beach, California. I declare under penalty ofperjury under ia that the aboveis true andcorrect.