PEOPLE v. WOODRUFF

Appellant’s Opening Brief

Cal.August 30, 2011

ve COURT COPY IN THE SUPREME COURT OF THE STATE OF CALIFORNIA wns COPY THE PEOPLE, ) Plaintiff and Respondent, ) ) . ) oeGOURT ) APPELLANT’S Fil a8) ) OPENING » STEVE WOODRUFF, ) BRIEF AUG 30 9911 Defendant and Appellant. ) ) Frederick K, Ohlrich Clerk ) DEATH PENALTY CASE AeSul”eee: Automatic Appeal from the Superior Court of California, County of Riverside (Case No. RIF095875) The Honorable Christian Thierbach, Judge DENNIS C. CUSICK, CA Bar No. 204284 Attorney at Law P.O. Box 2252 Martinez, CA 94553-0225 Telephone: (916) 743-7358 Facsimile: (925) 387-0579 e-mail: dennis.cusick@comcast.net Attorney for Appellant STEVE WOODRUFF IN THE SUPREME COURT OF THE STATE OF CALIFORNIA THE PEOPLE, Plaintiff and Respondent, No. $115378) ) ) Vv. ) ) APPELLANT’S ) OPENING STEVE WOODRUFF, ) BRIEF Defendant and Appellant. ) ) ) DEATH PENALTY CASE Automatic Appeal from the Superior Court of California, County of Riverside (Case No. RIF095875) The Honorable Christian Thierbach, Judge DENNIS C. CUSICK, CA Bar No. 204284 Attorney at Law P.O. Box 2252 Martinez, CA 94553-0225 Telephone: (916) 743-7358 Facsimile: (925) 387-0579 e-mail: dennis.cusick@ comcast.net Attorney for Appellant STEVE WOODRUFF TABLE OF CONTENTS L TABLE OF AUTHORITIES............000.cccccessececcssseeecuseeeeeees vi Il. INTRODUCTION............ccccccecccceeceeccceeccucscuetescecaeseaesenas 1 Il. STATEMENT OF APPEALABILITY..........0.ccccceceeeeeeeeeeee ees 2 IV. STATEMENT OF THE CASE...........0000cccccceccceeesstetsneceeeees 3 V.___ STATEMENTOFFACTS...... bee eceseeeaeeneeeeeeeuusseecceneeaeeens 13 VI. CLAIMS FOR RELIEF .........0..c0cccccccecccecccu ceca ceenececeeseeees 31 A. Pre-trial CLAIM A1:Trial judgefailed to protect Mr. Woodruff’s constitutional rights to fair trial, assistance of counsel, due process. ................cceceeceseeceeeeeaes 31 a. Failure to intervene ....... 000. ccccccccenceneeeuees 40 b. Assistance ofco-counsel 0.0.0.0 ...0c ccc ccc c esses 43 C. Inadequate inquiry ...... 0.6... c cece cece cena eeceees 45 CLAIM A2:Trial judge failed to inquire into defendant’s competence to stand trial. . 20.0...ceeceeeeee ees 49 CLAIM A3:Trial judge solicited three pretrial waivers of right to unconflicted counsel without showing defendant made knowing,intelligent and voluntary choice; defense counsel violated duty of loyalty. ............ 53 CLAIM A4: Actionsoftrial judge, defense counsel and prosecutor denied Mr. Woodruff an impartial jury. ....................ccccceececeee seas 67 a. Improperexclusion of qualifiedjurors ........ 67 b. BiasedJUPOM 1.2... e cece cece ence nett ne eaneees 76 i, Ineffective ASSISTANCE ........ 66 cece eae 83 ll. Abuse of discretion ......000.. ccc ccc ee ee 84 ui. Automatic vote for death ............... 86 People v. Woodruff, 8115378 i Appellant’s Opening Brief C. Peremptory challenges .........c0ccceeeeeneeeee 88 i. Trialjudge erred in denying first Wheeler motion based on confusion about juror’s identity. ...............000 88 li. Trial judge erred in denying second Wheeler motion with faulty reasoning for concludingprosecutor’s reasons for excluding black jurors were VFACE-NCUIFAL. occ ccc cece cece cee eeeseeees 96 CLAIMAS:Trial judge erred in allowing prosecutor’s prejudicial insinuation about defendant insisting on rightto trial. .......................008 102 B. Guilt phase CLAIM B1:Trial judge refused to limit numberof uniformed police officers in courtroom, which created intimidating atmosphere.......................e0. 106 CLAIM B2: Trial judge created “indelible picture” when he allowed jurors to see photographs of defendant in orangejail jumpsuit. .....................0.. eee eee 112 CLAIM B3: Prosecution witness improperly mentioned defendant’s arrest record without being asked. 116 CLAIM B4: Prosecutor engaged in prejudicial misconductin questioning Mr. Woodruff’s mother about convictions from sameincident. ..................... 121 CLAIM BS5: Testimonyof prosecution’s lead investigator was inadmissible and highly prejudicial. ................ 127 a. Assistance of COUNSEL ...... 2.0. ccc eeee ence ee ees 134 b. Prosecutorial misconduct............40.00005 138 C. Judicial misconduct ...........s0cc cece eee e eee 139 CLAIM B6: Prosecutor and trial judge prejudiced defendant by repeatedly mocking defense counselin front of JUTY. oooccc c cece een e nee e eee e nace teen erences 142 a. Prosecutorial misconduct..........0.0...c000: 143 b. Judicial miscOnduct .........0. ccc cece cee ec eee 151 People v. Woodruff, S115378 ii Appellant’s Opening Briefsa P CLAIM B7: CLAIM B8: CLAIM B9: Defense counsel repeatedly misrepresented facts. Lieb eee ee eee eee e eee n ee ence eee es eens eeeeeeeeeeeeeataneaeeneees 164 Prosecutor committed prejudicial misconduct by improperly appealing to jurors’ emotions with “golden rule” argument. ...................0.000000 es 175 Evidence wasinsufficient to support jury’s special circumstancefinding of lying in wait. ... 184 C. Retardation phase CLAIM Cl: CLAIM C2: Trial court improperly created its own format for mental retardation phase......................... 190 Prosecutor made improper argumentappealing to jurors’ prejudices about retardation; defense counselfailed to object. ..................... 202 D. Penalty phase CLAIM D1: CLAIM D2: CLAIM D3: E. Structural CLAIM E: People v. Woodruff, S115378 Prosecutor improperly appealed to jurors’ biases in penalty-phase opening statement. ............... 209 Trial judge allowed hearsay testimonyat penalty phase, which violated Mr. Woodruff’s right to confront witness against him.......................... 214 Trial judge conducted further fact-finding before denying defendant’s automatic motion to modify penalty verdict................c ccc ceccc cece ence ee ense ees 221 a. UNSWOTN fSTIMONY ©... 6c ccc ccc eee ce eee u neces 221 b. Probation report ..... 6. ccc ciec cence eee cee neues 227 Trial record wasfalsified in multiple places, casting doubt on veracity of entire record......... 231 ili Appellant’s Opening Brief F. Constitutional CLAIM F1: California’s death-penalty statutes, as interpreted by this Court and applied at Mr. Woodruff’strial, violate United States Constitution. .................. 243 a. Penal Code section 190.2 is impermissibly broad........c::.c0ceeee eee eevee 244 b. Penal Code section 190.3 as applied allows arbitrary and capricious imposition Of death, ....... 20... cece seetse ee eees 246 C. California’s death-penalty statutes contain no safeguards to avoid arbitrary and capricious sentencing; statutes deprive defendants of right to jury determination of eachfactual prerequisite to sentence of death. ............. 248 i Death verdict for Mr. Woodruffwas not premised on findings beyond a reasonable doubt by unanimous jury that one or more aggravating factors existed and outweighed mitigating factors. .. 249 il California law fails to require jury to base death sentence on written findings regarding aggravating fACtOTS. .....cccceseseeeeeeee ees 255 iii, Alleged criminal activity could not serve as factor in aggravation unless found to be true beyond a reasonable doubt by unanimous jury. .... ... 257 iv. Judge’s failure to instruct juryy that statutory mitigating factors were relevant solely as potential mitigation precluded fair, reliable and evenhanded administration ofdeath penalty....... 260 d. California’s use ofdeath penalty as regular form ofpunishmentfalls short of international norms of humanity and decency and violates Eighth and Fourteenth Amendments......... 263 CLAIM F2: Cumulative effect of errors pretrial and at guilt, retardation and penalty phases requires reversal of Mr. Woodruff’s convictions and death sentence. cece ccceeccecuccceaeeecsceeeuancetceeseuunneeeseeseceuneeens 266 People v. Woodruff, 8115378 iv Appellant’s Opening Brief VIL. CONCLUSION 1.00...ccece eee eanet ec easeneeeaeeeaees 268 VII, CERTIFICATE OF COMPLIANCE...............ccceceeceeeeceenees 269 IX. CERTIFICATE OF SERVICE 1.0.2... ccc ccc ceccececcee eee eesstnseens 270 People v. Woodruff, S115378 Vv Appellant’s Opening Brief L. TABLE OF AUTHORITIES Federal cases Adams v. Texas (1980) 448 U.S. 38 [100 S.Ct. 2521] 0.0... cece cence eee cere eres 70 Apprendi v. New Jersey (2000) 530 U.S. 466 [120 S.Ct. 2348, 147 L.Ed.2d 435] ...... passim Atkins v. Virginia (2002) 536 U.S. 304 [122 S.Ct. 2242] 0...eee cence ees passim Batson v. Kentucky (1986) 476 U.S. 79 [106 S.Ct. 1712, 90 L.Ed.2d 69] ........... passim Berger v. United States (1935) 295 U.S. 78 [55 S.Ct. 629] 2.0... ee eeee eee eee ee 139, 147, 204 Blakely v. Washington (2004) 542 U.S. 296 [124 S.Ct. 2531, 159 L.Ed.2d 403] ...... passim Brady v. Maryland (1963) 373 U.S. 83 [83 S.Ct. 1194; 10 L.Ed.2d 215] ...... ee. 10 Briscoe v. LaHue (1983) 460 U.S. 325 [103 S.Ct. 1108] 0.0...ccc ee tee eee 119 California v. Brown (1987) 479 U.S. 538 [107 S.Ct. 837] .......c cece eee e eee e eee eens 255 Carey v. Musladin (2006) 549 U.S. 70 [127 S.Ct. 649] .....eceee ees 108-110 Chambers v. Mississippi (1973) 410 U.S. 284 [93 S.Ct. 1038] ....... ccc eee eee ee ee teens 266 Chapmanv. California (1967) 386 U.S. 18 [87 S.Ct. 824, 17 L.Ed.2d 705] ........... 113-114 Chessman v. Teets (1957) 354 U.S. 156 [77 S.Ct. 1127] 2.0... cece cence ees 236, 241 Cox v. Louisiana (1965) 379 U.S. 559 [85 S.Ct. 476, 13 L.Ed.2d 487] ............... 108 Crawford v. Washington (2004) 541 U.S. 36 [124 S.Ct. 1354] 2.0...eee eee ee 217-218 Cunningham v. California (2007) 549 U.S. 270 [127 S.Ct. 856] «2.0... eee cece ene passim Cuyler v. Sullivan (1980) 446 U.S. 335 [100 S.Ct. 1708; 64 L. Ed. 2d 333] Lobe e cece eee been e eee cece eee e een eaee enna eeeeeneneeeeeae ees 59-61, 64, 65 Darden v. Wainwright (1986) 477 U.S. 168 [106 S.Ct. 2464, 91 L.Ed.2d 144] Lecce eee cence eee eens teeee tees eenee seen eeeneeeeneeees 104, 179, 210 People v. Woodruff, $115378 i Appellant’s Opening BriefV1 g Davis v. Georgia (1976) 429 US. 122 [50 L.Ed.2d 339, 97 S.Ct. 399] ...........0.... 76 Donnelly v. DeChristoforo (1974) 416 U.S. 637 [94 S.Ct. 1868, 40 L.Ed.2d 431] beeen eee eee eee eee ee cena tees eee enen eee ae eee eeseen es 104, 138, 150, 179 Drope v. Missouri (1975) 420 U.S. 162 [95 S.Ct. 896] 2.0.0... cece cece eect eet eeee tenes 51 Dusky v. United States (1960) 362 U.S. 402 [80 S.Ct. 788, 4 L.Ed.2d 824] ............... 51-52 Edwards v. Arizona (1981) 451 U.S. 477 [101 S.Ct. 1880, 68 L.Ed.2d 378] ............. 46 Engle v. Isaac (1982) 456 U.S. 107 [102 S.Ct. 1558, 71 L.Ed.2d 783] ............ 134 Estelle v. Williams (1976) 425 U.S. 501 [96 S.Ct. 1691, 48 L.Ed.2d 126] ........ 113, 117 Felts v. Estelle (9"Cir. 1989) 875 F.2d 785 ooo. eee cece cece ene ee neeeeeeeeenaeeeeeeataeaenens 113 Ford v. Wainwright (1986) 477 U.S. 399 [106 S.Ct. 2595] oo... cece cece ee eeeneneees 244 Frank v. Mangum (1915) 237 U.S. 309 [35 S.Ct. 582] ..... cece c cece cece eee e ene eneeenes 109 Frazier v. United States (1948) 335 U.S. 497 [93 L. Ed. 187, 69 S. Ct. 201] ............ce. 85 Furman v. Georgia (1972) 408 U.S. 238 [33 L.Ed.2d 346, 92 S.Ct. 2726] .......... passim Gideon v. Wainwright (1963) 372 U.S. 335 [83 S.Ct. 792] oo... ccc cece ccc cecesseceeeteeeeees 59 Glasser vy. United States (1942) 315 U.S. 60 [62 S.Ct. 457, 86 L. Ed. 680] ................ 45-47 Godfrey v. Georgia (1980) 446 U.S. 420 [100 S.Ct. 1759]... ccc cece eee ee seen ees 247 Grayv. Mississippi (1987) 481 U.S. 648 [95 L. Ed. 2d 622, 107 S.Ct. 2045] ............. 76 Green v. Lamarque (9" Cir. 2008) 532 F.3d 1028 00...ccence cece ec ee ae eeeeeeeeeeeeseees 93, 94 Gregg v. Georgia (1976) 428 U.S. 153 [96 S.Ct. 2909] ........... 200, 236-237, 255 Hardy v. United States (1964) 375 U.S. 277 [84 S.Ct. 424] oo.ccc ccc cece eee enteeaes 238 Harmelin v. Michigan (1991) 501 U.S. 957 [111 S.Ct. 2680]... ccc cece eee eee ee ees 256 Hicks v. Oklahoma (1980) 447 U.S. 343 [100 S.Ct. 2227] 2.0...c cece ee eeee eee es 262 People v. Woodruff, 8115378 Vii Appellant’s Opening Brief Hilton v. Guyot (1895) 159 U.S. 113 [16 S.Ct. 139] 22... cece ee eeeeeee es 264-265 Holbrookv. Flynn (1986) 475 U.S. 560 [106 S.Ct. 1340] ..... cece eee e cence eeee 110 Holloway v. Arkansas (1978) 435 U.S. 475 [98 S.Ct. 1173]... cece cece e ence eee e ee 59, 62 Hughes v. United States (6" Cir. 2001) 258 F.3d 453 ooo. c ccc cece eee e ence eens cena teneee ene aees 81-84 Illinois v. Allen (1970) 397 U.S. 337 [90 S.Ct. 1057] ... 0... eee cece cece ee eeeeeeeenes 4} Indiana v. Edwards (2008) 554 U.S. 164 [128 S.Ct. 2379, 171 L.Ed.2d 345] ........ 41, 46 Irvin vy. Dowd (1961) 366 U.S. 717 [81 S.Ct. 1639, 6 L.Ed. 2d 751] ............ 80-81 Jackson v. Virginia (1979) 443 U.S. 307 [99 S.Ct. 2781, 61 L.Ed.2d 560] .............. 187 J.E.B. v. Alabama (1994) 511 U.S. 127 [114 S.Ct. 1419, 128 L.Ed.2d 89] ........... 89-90 Jecker, Torre & Co. v. Montgomery (1855) 59 U.S. [18 How.] 110 [15 L.Ed. 311] ............. eee 265 Johnson v. Armontrout(8" Cir. 1992) 961 F.2d 748 .... ccc cece eee e ence cena e ee eeeeesaeeenaeesnees 80 Johnson v. California (2005) 545 U.S. 162 [125 S.Ct. 2410; 162 L.Ed. 2d 129]........... 91 Johnson v. Zerbst (1938) 304 U.S. 458 [58 S.Ct. 1019; 82 L. Ed. 1461] ............ 45-46 Jurek v. Texas (1976) 428 U.S. 262 [96 S.Ct. 2950] 2.22.0... cece ee eeeeeeeeee es 236-237 Kansas v. Marsh (2006) 548 U.S. 163 [126 S.Ct. 2516] 2.0...ccc cece eeeees 243 Martin v. Waddell’s Lessee (1842) 41 U.S. [16 Pet.] 367 [10 L.Ed. 997] ........... eeeee 264 Maynard v. Cartwright (1988) A486 U.S. 356 [108 S.Ct. 1853]... 0... cece cece eee teens 247 McMannv. Richardson (1970) 397 U.S. 759 [90 S.Ct. 1441] ..... cece cesses 40, 134 Mickensv. Taylor (2002) 535 U.S. 162 [122 S.Ct. 1237] ......eee eeeee es 60, 64-65 Miller v. Francis (6" Cir. 2001) 269 F.3d 609 20.0... c ccc ccc cece cece cece eee eeeeeeeeeeeeneeneenes 83 People v. Woodruff, $115378 Vili Appellant’s Opening Brief Miller v. United States (1871) 78 U.S.[11 Wall.] 268 [20 L.Ed. 135] .......0eccceeceeeseeee 264 Miller v. Webb (6" Cir. 2004) 385 F.3d 666 ....cccccccccccccccceucccceuccuussessssecescuecesueees 85 Miller-El v. Dretke (2005) 545 U.S. 231 [125 S.Ct. 2317, 162 L.Ed.2d 196]....... passim Mills v. Maryland (1988) 486 U.S. 367 [108 S.Ct. 1860] ....... 0. ee cee eee e eee ee ees 256 Miranda vy. Arizona (1966) 384 US. 436 [86 S.Ct. 1602] ...... 0.ec ee cece cee eeeeee ees 59 Moore v. Dempsey (1923) 261 U.S. 86 [43 S.Ct. 265] 2.0.0... cece cence e ence eee eeeenes 109 Morgan vy.Illinois (1992) 504 U.S. 719 [112 S.Ct. 2222] 2...ecece eee eeee es 87 Murphy v. Florida (1975) 421 U.S. 794 [44 L. Ed. 2d 589, 95 S. Ct. 2031] ......... 80-81 Myers v. Yist (9" Cir. 1990) 897 F.2d 417 oo. ccc ece nce e eee ee eee ee eae eeeeeeeeneeeneees 256 Nederv. United States (1999) 527 U.S. 1 [119 S.Ct. 1827, 144 L.Ed. 2d 35] ..........0.0... 80 Norris v. Risley (9"" Cir. 1990) 918 F.2d 828 00... ccc ccc ccc cence eee e ee en ee eens eeeaeess 109-110 Parker v. Dugger (1991) 498 U.S. 308 [111 S.Ct. 731] 2.0...ccc cee ee ees 236-237 Parle v. Runnels cg" Cir. 2007) SOS F.3d 922.0... ccccce eee e cee en ence eeeeenaeeesesaeeeenenaes 266 Pate v. Robinson (1966) 383 U.S. 375 [86 S.Ct. 836, 15 L.Ed.2d 815] ................ 51 Patton v. Yount (1984) 467 U.S. 1025 [104 S.Ct. 2885] ........cee 71, 79-80, 85 Powell v. Alabama (1932) 287 US. 45 [53 S.Ct. 55, 77 L.Ed. 158] ............. cece ee 136 Powers v. Ohio (1991) 499 U.S. 400 [111 S.Ct. 1364, 113 L.Ed.2d 411]......... 89-90 Proffitt v. Florida (1976) 428 U.S. 242 [96 S.Ct. 2960] ....... ccc cece eee ee cence es 236-237 Pulley v. Harris (1984) 465 U.S. 37 [104 S.Ct. 871] oo.ccc cece eee e ne eeeeete es 243 Purkett v. Elem (1995) 514 U.S. 765 [115 S.Ct. 1769; 131 L.Ed. 2d 834] ........... 91 Quintero v. Bell (6Cir. 2004) 368 F.3d 892,cert. den. (2005) 544 U.S. 936 [125 S.Ct. 1636] bovseseeeeuuececucceccauceceaeveccuueceeaueceaueseaueseeueaerseess 83-84 People v. Woodruff, S115378 ix Appellant’s Opening Brief Ring v. Arizona (2002) 536 U.S. 584 [122 S.Ct. 2428, 153 L.Ed.2d 556] ...... passim Sell v. United States (2003) 539 U.S. 166 [123 S.Ct. 2174, 156 L-Ed.2d 197] ............ 41 Smith v. Phillips (1982) 455 U.S. 209 [71 L.Ed. 2d 78, 102 S.Ct. 940] ............. 85-86 Snyder v. Louisiana (2008) 552 U.S. 472 [128 S.Ct. 1203] .................0 71-72, 92, 98 Strauder v. West Virginia (1880) 100 U.S. 303 [25 L.Ed. 664] ........... ccc cece ee eee center ee 90-91 Strickland v. Washington (1984) 466 U.S. 668 [104 S.Ct. 2052] 0.0... ccc ccc cece eeees passim Stringer v. Black (1992) 503 U.S. 222 [112 S.Ct. 1130] «20... cece eee cece es 262-263 Tan v. Runnels (9"Cir. 2005) 413 F.3d 1101 oo... cece cece ence ee eneeencaeeenaeeenes 104 Taylor v. Kentucky (1978) 436 U.S. 478 [98 S.Ct. 1930, 56 L.Ed.2d 468] .............. 117 Townsend v. Sain (1963) 372 U.S. 293 [83 S.Ct. 745] oo... cece cece eceeee cence eneeseens 255 Trop v. Dulles (1958) 356 U.S. 86 [78 S.Ct. 590] 2.0.0... cece cece cece ence ee eeeees 212 Tuilaepa v. California (1994) 512 U.S. 967 [114 S.Ct. 2630] ....... cece cece cere eeeeee ee 247 Turner v. Marshall (9" Cir. 1997) 121 F.3d 1248 oo... ccc e cece ccc e cece ene eee eeeeeneneeeaeeees 95 United States v. Ash (1973) 413 U.S. 300 [93 S.Ct. 2568, 37 L.Ed.2d 619] .............. 134 United States v. Bernstein (2d Cir. 1976) 533 F.2d 775,cert. den., 429 U.S. 998 [50 L.Ed.2d 608, 97 S.Ct. 523] 0.0... cece cence eee eeeeeeeren 59 United States v. Booker (2005) 543 U.S. 220 [125 S.Ct. 738, 160 L.Ed.2d 621] beeen ee ence eee teense eee e teense eeneeesnaeeesannees 228, 251, 258-259 United States v. Chanthadra (10™ Cir. 2000) 230 F.3d 1237 2... cece ccc ec ccc e eee e eee eeeenneneeeeateeeeeeees 76 United States v. Cronic (1984) 466 U.S. 648 [104 S. Ct. 2039, 80 L. Ed. 2d 657] eres83, 134, 136-137 United States v. Dolan (3d Cir. 1978) 570 F.2d 1177 2... cece cece cece eet eee ee eee ee eee eee eeeeeeneneeees 59 United States v. Frederick (9" Cir. 1996) 78 F.3d 1370 oo... cc cece cece eee c cence eeeeeeeeeeesseaeeeeus 266-267 People v. Woodruff, S115378 X Appellant’s Opening Brief United States v. Gonzalez (9"Cir. 2000) 214 F.3d 1109 ooo. eeeecccceeeveceeuaeeceeeeeneeees 83-84 United States v. Martinez-Salazar (2000) 528 U.S. 304 [145 L.Ed. 2d 792, 120 S.Ct. 774] ......... 83-85 United States v. Pisani (2d Cir.1985) TT3 F.2d 397 oo. cecccccseeccceuseccuceceusveceeceeuececeettneess 162 United States v. Rodrigues (9" Cir. 1998) 159 F.3d 439 ooo cece ccccseeceseueeseceeseieeeeantean 150 United States v. Rutherford (9"Cir. 2004) 371 F.3d 634 vo..cceccccseccccseecceuceccuececcucceetseenesaness 109 United States v. Wallace (9Cir. 1988) 848 F.2d 1464 ooo... cece cccsseeecccceueeeeeeeececsneces 266-267 United States v. Washington (9" Cir. 2006) A62 F.3d 1124 oo. cccceeecccseeccusececeeccsevecertecereneees 113 Uttecht v. Brown (2007) 551 U.S. 1 [127 S.Ct. 2218] ooo. ceeccceecccesesssscesescceeceeees 71 Wainwright v. Witt (1985) 469 U.S. 412 [83 L. Ed. 2d 841, 105 S.Ct. 844] ..... 70-72, 75 Wheat v. United States (1988) 486 U.S. 153 [108 S.Ct. 1692, 100 L.Ed.2d 140].......00... 41 Witherspoonv. Illinois (1968) 391 U.S. 510 [88 S.Ct. 1770] 0...ccc cece eee e eee ee en 70 Wood v. Georgia (1981) 450 U.S. 261 [101 S. Ct. 1097] 2...cece eee eeee ee 59 Woods y. Dugger (11" Cir. 1991) 923 F.2d 1454 ooo. ceeee eee e eee e eee e neat eeaeeenaenens 109 Woodson v. North Carolina (1976) 428 U.S. 280 [96 S.Ct. 2978] 22.0...e eee ec caste eens passim Zant v. Stephens (1983) 462 U.S. 862 [103 S.Ct. 2733] 2.0... ec cc ce ceenee cette ee ees 260 California state cases Beagle v. Vasold (1966) 65 Cal.2d 166 [53 Cal.Rptr. 129, 417 P.2d 673] ............ 178 Cassim y. Allstate Ins. Co. (1994) 33 Cal.4" 780 [16 Cal.Rptr.3d 374, 94 P.3d 513] .......... 150 Garden Grove SchoolDist. v. Hendler (1965) 63 Cal.2d 141 [45 Cal.Rptr. 313, 403 P.2d 721] ............ 150 In re Andrew M.(1977) 74 Cal.App.3d 295 [141 Cal.Rptr. 350] ................. 00s 241 In re Avena (1996) 12 Cal.4" 694 [49 Cal.Rptr.2d 413, 909 P.2d 1017] .. 113-114 People v. Woodruff, 8115378 Xi Appellant’s Opening Brief In re Hawthorne (2005) 35 Cal.4" 40 [24 Cal.Rptr.3d 189, 105 P.3d 552] ....... passim In re Nadrich (1988) 44 Cal.3d 271 [243 Cal.Rptr. 218, 747 P.2d 1146] ......... 172 In re Steven B. (1979) 25 Cal.3d 1 [157 Cal.Rptr. 510, 598 P.2d 480] ............. 237 In re Sturm (1974) 11 Cal.3d 258 [113 Cal.Rptr. 361, 521 P.2d 97] ....... 255-256 Keenanv. Superior Court (1982) 31 Cal.3d 424 [180 Cal.Rptr. 489, 640 P.2d 108] ...... passim Marks v. Superior Court (2002) 27 Cal.4" 176 [115 Cal.Rptr.2d 674, 38 P.3d 512] .........240 Maxwell v. Superior Court (1982) . 30 Cal.3d 606 [180 Cal.Rptr. 177, 639 P.2d 248] ........ 42-43 O'Kelley-Eccles Co. v. State (1958) 160 Cal.App.2d 60 [324 P.2d 683] ............ ccc eeeeee eee ee 141 Parker v. Smith (1854) A Cal. 105 2.0... cece cece ccc ec cece enna eee eeesseeeeeeenes 140-141 People v. Allen (1986) 42 Cal.3d 1222 [232 Cal.Rptr. 849, 729 P.2d 115] Leen eee een e een E EEE E een EEE DEE EE EEE EEE; EE ER EE EES EEES 250-251 fn. People v. Alvarez (1996) 14 Cal.4" 155 [58 Cal.Rptr.2d 385, 926 P.2d 365] Leen eee eee eee een e teen ete nate eae ee EE EE etEEE EEE bEEE ES 236, 239, 240 People v. Arias (1996) 13 Cal.4" 92 [51 Cal.Rptr.2d 770, 913 P.2d 980] .... 181, 261 People v Bacigalupo (1993) 6 Cal.4" 457 [24 Cal.Rptr.2d 808, 862 P.2d 808]........... 245 People v. Barton (1978) 21 Cal.3d 513 [146 Cal.Rptr. 727, 579 P.2d 1043] ... 238, 240 People v. Berryman (1993) 6 Cal.4" 1048 [25 Cal.Rptr.2d 867, 864 P.2d 40] .... 118, 181 People v. Blair (2005) 36 Cal.4™ 686 [31 Cal.Rptr.3d 485, 115 P.3d 1145] ..... 51-52 People v. Bonilla (2007) 41 Cal.4" 313 [60 Cal.Rptr.3d 209, 160 P.3d 84] ........... 91 People v. Bonin (1988) 46 Cal.3d 659 [250 Cal.Rptr. 687, 758 P.2d 1217] ......... 138 People v. Bonin (1989) 47 Cal.3d 808 [254 Cal.Rptr. 298, 765 P.2d 460] Lene eee eee e nee e eee eee eee eee ne eee eee Eee Ee Eee DE DERE ESE SEES EES passim People v. Booker (2011) 51 Cal.4™ 141 [119 Cal.Rptr.3d 722, 245 P.3d 366] .. 206-207 People v. Woodruff, 8115378 Xii Appellant’s Opening Brief People v. Botkin (1908) 9 Cal.App. 244 [98 P. 861] 2.0... cece cc eeeecee scene ee eens 178 People v. Boyd (1985) 38 Cal.3d 765 [215 Cal.Rptr. 1, 700 P.2d 782] .............. 262 People v. Bradford (1997) 15 Cal.4"™ 1229 [65 Cal.Rptr.2d 145, 939 P.2d 259] .... passim People v. Brown (1985) 40 Cal.3d 512 [230 Cal.Rptr. 834, 726 P.2d 516] Leen eee cede ee eee e nee eee e esse eee ee eee eeaseteneeteesereeenes 250-251 fn. People v. Brown (1988) 46 Cal.3d 432 [250 Cal.Rptr. 604, 758 P.2d 1135] ..... 250 fn. People v. Carlin (1968) 261 Cal.App.2d 30 [67 Cal.Rptr. 557] ............ccceec ease 178 People v. Carpenter (1997) 15 Cal.4" 312 [63 Cal.Rptr.2d 1, 935 P.2d 708] ...... 261-262 People v. Ceja (1993) 4 Cal.4"™ 1134 [17 Cal.Rptr.2d 375, 847 P.2d 55] ........... 187 People v. Chessman (1959) 52 Cal.2d 467 [341 P.2d 679] 2.0.0... ccc cece cece esteee ee eee 235 People v. Cox (2003) 30 Cal.4" 916 [135 Cal.Rptr.2d 272, 70 P.3d 277] ........... 60 People v. Crittenden (1993) 9 Cal.4" 83 [36 Cal.Rptr.2d 474; 885 P.2d 887] ....... 228-229 People v. Cunningham (2001) 25 Cal.4" 926 [108 Cal.Rptr.2d 291, 25 P.3d 519] ..... 72, 74 People v. Davenport (1985) 41 Cal.3d 247 [221 Cal.Rptr. 794, 710 P.2d 861] ........... 260 People v. Demetrulias (2006) 39 Cal.4" 1 [45 Cal.Rptr.3d 407, 137 P.3d 229]...... 252, 256 People v. Dickey (2005) 35 Cal.4" 884 [28 Cal.Rptr.3d 647, 111 P.3d 921] ......... 252 People v. Doolin (2009) 45 Cal.4™ 390 [87 Cal.Rptr.3d 209, 198 P.3d 11]....... 43, 60 People v. Durham (1969) 70 Cal.2d 171 [74 Cal.Rptr. 262, 449 P.2d 198] ............ 118 People v. Dyer (1988) 45 Cal.3d 26 [246 Cal.Rptr. 209, 753 P.2d 1] ............... 247 People vy. Edelbacher (1989) 47 Cal.3d 983 [254 Cal.Rptr. 586, 766 P.2d 1] ........ 244, 260 People v. Edwards (1991) 54 Cal.3d 787 [1 Cal.Rptr.2d 696, 819 P.2d 436]...... 186-187 People v. Escarcega (1986) 186 Cal.App.3d 379 (230 Cal.Rptr. 638] ............cccceceeee 37 People v. Woodruff, $115378 Xili Appellant’s Opening Brief People v. Espinoza (1992) . 3 Cal.4" 806 [12 Cal.Rptr.2d 682, 838 P.2d 204] .......... 147 People v. Fairbank (1997) 16 Cal.4" 1223 [69 Cal.Rptr.2d 784, 947 P.2d 1321] eee249, 251, 255 People v. Farnam (2002) 28 Cal.4" 107 [121 Cal.Rptr.2d 106, 47 P.3d 988] ......... 250 People v. Fatone (1985) 165 Cal.App.3d 1164 [211 Cal.Rptr. 288] ...............0 161 People v. Fauber (1992) 2 Cal.4" 792 [9 Cal.Rptr.2d 24, 831 P.2d 249] .............. 255 People v. Fields (1983) 35 Cal.3d 329 [197 Cal.Rptr. 803, 673 P.2d 680] .......... 179 People v. Fierro (1991) 1 Cal.4" 173 [3 Cal.Rptr.2d 426, 821 P.2d 1302] ..... 147-148 People v. Gionis (1995) 9 Cal.4" 1196 [40 Cal.Rptr.2d 456, 892 P.2d 1199] ....... 150 People v. Hamilton (1989) 48 Cal.3d 1142 [259 Cal.Rptr. 701, 774 P.2d 730] ......... 260 People v. Harris (1989) 47 Cal.3d 1047 [255 Cal.Rptr. 352, 767 P.2d 619] ... 138, 150 People v. Hartsch (2010) 49 Cal.4" 472 [110 Cal.Rptr.3d 673, 232 P.3d 663)...... 96 fn. People v. Hawthorne (1992) 4 Cal.4" 43 [14 CalRptr.2d 133, 841 P.2d 118] ...... 239, 256 People v. Hawthorne (2009) 46 Cal.4" 67 [92 Cal.Rptr.3d 330, 205 P.3d 245] .......... 100 People v. Hill (1998) 17 Cal.4"™ 800 [72 Cal.Rptr.2d 656, 952 P.2d 673] ..... passim People v. Hillhouse (2002) 27 Cal.4" 469 [117 Cal.Rptr.2d 45, 40 P.3d 754] ..... 245-246 People v. Howard (1992) 1 Cal.4" 1132 [5 Cal.Rptr.2d 268, 824 P.2d 1315] ... 236, 240 People v. Jackson (2009) 45 Cal.4™ 662 [88 Cal.Rptr.3d 558, 199 P.3d 1098] .. 178-179 People v. Johnson (1980) 26 Cal.3d 557 [162 Cal.Rptr. 431, 606 P.2d 738] ........... 187 People vy. Kelley (1967) 66 Cal.2d 232 [57 Cal.Rptr. 363] 1.0.0.2... cece eee e eee e eee 118 People v. Lancaster (2007) 41 Cal.4" 50 [58 Cal.Rptr.3d 608, 158 P.3d 157]......... 88 fn. People v. Leach (1934) 137 Cal.App. 753 [31 P.2d 449] ...0.eeeee eee 178 People v. Woodruff, 3115378 Xiv Appellant’s Opening Brief People v. Lenix (2008) 44 Cal.4™ 602 [80 Cal.Rptr.3d 98, 187 P.3d 946] ........ 93-94 People v. Leonard (2007) 40 Cal.4" 1370 [58 Cal.Rptr.3d 368, 157 P.3d 973] ........ 179 People v. Lewis (1990) 50 Cal.3d 262 [266 Cal.Rptr. 834, 786 P.2d 892] ...... 45, 229 People v. Lopez (2005) 129 Cal.App.4™ 1508 [29 Cal.Rptr.3d 586] .................. 124 People v. Mahoney (1927) 201 Cal. 618 [258 P. 607] «2.0... .. cece ccc eee ence ee eeee es 161-162 People v. McWhorter (2009) 47 Cal.4" 318 [97 Cal.Rptr.3d 412, 212 P.3d 692] ......... 161 People v. Mendoza (2007) 42 Cal.4" 686 [68 Cal.Rptr.3d 274, 171 P.3d 2]... 179 People v. Montiel (1993) 5 Cal.4" 877 [21 Cal.Rptr.2d 705, 855 P.2d 1277].... 261-262 People v. Moore (1988) 201 Cal.App.3d 51 [248 Cal.Rptr. 31] ..............00 239-240 People v. Morales (1989) 48 Cal.3d 527 [257 Cal.Rptr. 64, 770 P.2d 244] ....... 186-187 People v. Morrison (2004) 34 Cal.4™ 698 [101 P.3d 568] ........ cc cceeeecceseeeeeeeeeeeees 261 People v. Mroczko (1983) 35 Cal.3d 86 [197 Cal.Rptr. 52, 672 P.2d 835]........ 46-47, 59 People v. Price (1991) 1 Cal.4" 324 [3 Cal.Rptr.2d 106, 821 P.2d 610] bebe ce econo eee beet eee ne eee tee tae etaeeeeenaeneeeeas 118-119, 182, 210 People v. Purvis (1963) 60 Cal.2d 323 [33 Cal.Rptr. 104, 384 P.2d 424] ....... 204-205 People v. Ray (1996) 13 Cal.4" 313 [52 Cal.Rptr.2d 296, 914 P.2d 846]......... 225 People v. Redd (2010) 48 Cal.4" 691 [108 Cal.Rptr.3d 192, 229 P.3d 101] .. 147-148 People v. Rogers (2006) 39 Cal.4" 826 [48 Cal-Rptr.3d 1, 141 P.3d 135] ............ 255 People v. Samayoa (1997) 15 Cal.4" 795 [64 Cal.Rptr.2d 400, 938 P.2d 2] ............ 239 People v. Serrato (1965) 238 Cal.App.2d 112 [47 Cal.Rptr. 543] ................ 241-242 People v. Sims (1993) 5 Cal.4" 405 [20 Cal.Rptr.2d 537, 853 P.2d 992] ........... 186 People v. Smith (2003) 30 Cal.4" 581 [134 Cal.Rptr.2d 1, 68 P.3d 302] ............ 225 People v. Woodruff, S115378 Appellant’s Opening BriefXV People v. Snow (1987) 44 Cal.3d 216 [242 Cal.Rptr. 477, 746 P.2d 452] ............ 92 People v. Snow (2003) 30 Cal.4" 43 [132 Cal.Rptr.2d 271, 65 P.3d 749]..... 162, 252 People v. Stansbury (1993) A Cal.4™ 1017 [17 Cal.Rptr.2d 174, 846 P.2d 756] ... 178-179 People v. Steele (2002) 27 Cal.4" 1230 [120 Cal.Rptr.2d 432, 47 P.3d 225]........ 225 People v. Stewart (2004) 33 Cal.4" 425 [15 Cal.Rptr.3d 656, 93 P.3d 271] Lee eee n cece eee e eee eee n eee eee e ene E Ee eR EEE ESS e EEE EEE EEEE ES 72-73, 75-76 People v. Sturm (2006) 37 Cal.4" 1218 [39 Cal.Rptr.3d 799, 129 P.3d 10] .... 161-162 People v. Superior Court (Engert) (1982) 31 Cal.3d 797 [183 Cal.Rptr. 800, 647 P.2d 76] ........ 245 fn. People v. Superior Court (Vidal) (2007) 40 Cal.4" 999 [56 Cal.Rptr.3d 851, 155 P.3d 259] ......... 199 People v. Thompson (1980) 27 Cal.3d 303 [165 Cal.Rptr. 289] .........0. eee 117-118 People v. Valdez (1982) 137 Cal.App.3d 21 [187 Cal.Rptr. 65] 0.0.0.0... 239 People v. Vance (2010) 188 Cal.App.4" 1182 [116 Cal.Rptr.3d 98] ............0.... 147 People v. Wallace (1891) 89 Cal. 158 [26 P. 650] ....... ccc cece cece eee ee seen eens 140-141 People v. Webster (1991) 54 Cal.3d 411 [285 Cal.Rptr. 31, 814 P.2d 1273] ..... 186-187 People v. Wharton (1991) 53 Cal.3d 522 [280 Cal.Rptr. 631] ....... cece eee eeeee eee 118 People v. Wheeler (1978) 22 Cal.3d 258 [148 Cal.Rptr. 890, 583 P.2d 748] Cee eee ence nee ee EEE EEE E EE EEE EERE E EES DEE EEE EE Beg eEEE 69, 88, 97, 99 People v. Wheeler (1992) 4 Cal.4" 284 [14 Cal.Rptr.2d 418, 841 P.2d 938] ..... 124-125 People v. Wrest (1992) 3 Cal.4" 1088 [13 Cal.Rptr.2d 511, 839 P.2d 1020]........ 210 People v. Young (2005) 34 Cal.4" 1149 [24 Cal.Rptr.3d 112, 105 P.3d 487]........ 236 Pitchess v. Superior Court (1974) 11 Cal.3d 531 [113 Cal.Rptr. 897, 522 P.2d 305] ............. 36 Smith v. Superior Court (1968) 68 Cal.2d 547 [68 Cal.Rptr. 1, 440 P.2d 65] ............. 37, 42 People v. Woodruff, S115378 XVi Appellant’s Opening Brief Snyderv. State Bar of California (1976) 18 Cal. 3d 286 [133 Cal.Rptr. 864, 555 P.2d 1104] ... 172-173 Stinchcomb v. People (1951) 102 Cal.App.2d 857 [228 P.2d 588] ............ cece ccee eee eee 235 Otherstate cases State v. Sanders (N.C. 1984) 321 S.E.2d 836 02... ccccce ccc ceee eee eeeeeceneeeeeeeus 235-236 Stribbling v. State (Fla.App. 2001) 778 $0.20 452 oo.ceee een e cece ence neeen ae eneeeeseneeeenaeas 119 California Statutes Business & Professions Code SECtION 6068 2.0... cece ee ccecccccesseccceesececeeeseuaecens 173 SECtION 6106 2.0... cece eee cece cece cesececcusseeccceuseenneeens 173 SCCHION 6128 ooo. cece cee cceeeeeecceecceuesecenaceeneeeeceras 173 Evidence Code SEction 210 0... cece cece eee eeecceeeseeeeesevueeeseeeess 125 SECTION 240 20... cece ec ccccc ce ceeeseuceceecevesseeeeeeeeeeess 216 SECHION 352 Lo... ciccccccccsececseusceecececceseceeeeeseneueuars 112, 125 SCCHION 702 2.0... cc cece ccc ccec cece eeusccceseeeceneeeneuees 139-140 SECTION 803 20... ook cc eee e cece eee eneeeeeeseeecnseuuaueeeeeee ss 140 Sections 1043-1047 oo... ccc ccc ccc ccecceeesceesusseeseeeeeees 36 fn. Section 1101 oo...eee ccee ccc eeeee ens eceeeseaeaseeeeeeess 117 SECTION 1370 2...cc ccee cece este eee cceseseeeveseueneeeeeeeeees 216 Penal Code SECTION 187 oo... ccc cece cece cece eeuueueesecceeevenvseueeaeeees 3 Sction 190 0... ccc cece cece cee eeceeceteeeaeeeeueseeeeevenes 253 Section 190.1 0...ee cece secs ceveseeseeeeeseeucsurseseceass 253 SECTION 190.2 oo.c ee ccc e cece eee eeseeeseeaeeeeeeeneenas passim SECTION 190.3 oo. eeece ccc e sence eee e eee eeaeneeeeeeteeneegas passim Section 190.4... eecc cece eee ee eee eeeeeeeaseeseeseneenas passim SECTION 190.5 oo... cece ccc sees eenscceccec ese cesecesaeuanens 253 SECTION 190.7 2... cece cece cess cc ceecesececceseeecucceneueaees 240 Section 190.9 2...cece c cece ecceeseececeeeeesaseaeaees 237 SECTION 439.54 Loocc cccc ccc ecesccuueccceeeeeeesaueeeunees 11 SECTION 664 20... cece ccc ccc eee eeeeeeeeeeeeneeesusseeeeeeeeeres 3 SECTION 987 oo... eee cece eee e ce eceee ce ccusseueeseuteceeuesesaeeueeseens 43 SCCtloONn 1170 oo... cece cece ccee ec cnaseeecseseesecunesesces cease 256 People v. Woodruff, 8115378 rf Appellant’s Opening BriefXV Section L181 elecccc ccee cece veseeeccseceeeceueeses 237, 239 SOCTION 1192.7 Loic cece ence cece eee e eee eteeeeeeeeeetenees 3 SECON 1239 Loccece cece cece een eee eeeeereneeeeeeeeeeeaes 2 SCCHION 1367 ooo. ieee ccc cec cee ecee cece esee ence sees a eetseeeeseeeeaues 51 Section 1368 ............. eee ee bese e ae ecene ee eases eneeeeeneee een eee 51 SCCHION 1376 oo... ieee cc ccce cece cece eee e eens seen ens 198-200, 204 fn. Section 12022.53 oo occcccccceee eee c eee eeeeeecceeeeeeereeeeeseees 3 California Jury Instructions CALIJIC 2.21.2 oocce ceee ence eee cee eee enna senna eenene een aes 241 CALIJIC 8.25 ooocectee ee ee etee ee eee eee nee eeenene ee eaere a eee tas 184 CALIJIC 8.88 2.0.ccece eee eeee eee ene e nee enannees 247, 250, 253 California Rules of Court TUle 8.346 . 0... cece cece ccc e ccc ccee ccc ccceeceeecereneccceeneeceeuseeeuneseuecs 238 TUle 8.619 oo...e ccc eee cece cece ects cee eueseeceeeeeeeeuenseuteneseeues 240 California Rules of Professional Conduct 70ColaO. 173 California Constitution Article 1 SCCUION 7 oo... cceece ec eeee cece cee ee eee eee ee ee eee e eee eeeeee eae e ees passim SECTION 15... eee ee ccee cece eee e ence eset eee tenses erases eaee eas passim SECTION 16 0... cece ccc eee eee e cece e eee neee nace nena ee enaeeeeeee ees passim SECTION 17 00... eee e ee ceee eee e eee e eee cere eae e eee eeenaeee eae eese passim SECTION 24 0... eee ceee cece eee e eee ceee tees cee e ee naeee eee ees passim SECTION 28 00... eee ceeecee cece sete eee eee e ence eee e eee eeaeneeee nee ees 124 SECHION 29 oo... eee c ccc ese eee eeeeee eee nese eee eeeeeeenateeenaeees passim SECTION 31elec cece cee ceee eect etee eee e eee eeae eee sean ees passim United States Constitution Amendments FIVE oo cc ccccc ccc cese eee cece eee nents nae e saeco eeaceenaenseeneeenes passim SIX Lecce cece cce eee ceneee ence ene ee ee eee eee e eee e ee ena ee etna ees passim Eight 22... ..ccc cee ceee eee e sees eee eeeee ee eeeeene eee eeae enna sence passim FOUrTCEN 20... eee ceee eee e ene eee ceeee ee eeeeee stern ease ena e ees passim People v. Woodruff, S115378 XVili Appellant’s Opening Brief Secondary Sources Bassoetal., Practice Effects on the WAIS-III Across 3- and 6-Month Intervals (2002) 16 Clinical Neuropsychologist 57 .... 195 fn. Boskey, The Right to Counsel in Appellate Proceedings (1961) AS Minn. L. Rev. 783 2.0... ccc ec cece eee caeeeeeeeeeeaeseessenenes 238 Merriam-Webster’s Collegiate Dictionary (11™ ed. 2003) ......... 149 Salorio, Penalty phase in Gomeztrial begins Tuesday (Dec. 1, 2002) Imperial Valley Press ............cccceccece eee eetseeeeeenees 192 fn. Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) ............cccccesssesteseesesenes . 147 Miscellaneous Administrative Office of the Courts, Courtroom Control: The Basics (2009) http://www2.courtinfo.ca.gov/protem/courses/cc/html_versio D/CC2UM 000.ccece ene ee ee ee eee eeeeeeeeeeteneneneeeacens 108 American Association of Mental Retardation, Mental Retardation: Definition, Classification, and Systems ofSupports (9" €d.1992) .......ccccccceeceeseeeee 203 American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders (4th ed. 2000) ......... ccc ccc cece eee neese ee eeeeeeeesaeeees 197 fn. Amnesty International, Death Sentences and Executions, 2010 (March 2011) http://amnesty.org/en/library/info/ACT50/001/201 1/en .... 263 California Voters Pamphlet, General Election, November 7, 1978...........0cccesccccesteneesccueceee cesses cesses 245 European Union, Brief as Amicus Curiae in McCarverv. North Carolina, O.T. 2001, No. 00-8727 ................006. 264 State Bar of California, Attorney Search, Mark Irvin Blankenship -- #130506, http://members.calbar.ca.gov/fal/Member/Detail/1 30506 . 29 People v. Woodruff, $115378 xix Appellant’s Opening Brief U0. INTRODUCTION “T just don't understand.” Steve Woodruff madethat statement — or variationsof it — as least six times onthe record before and duringhis death-penaltytrial in Riverside County Superior Court. Mr. Woodruff did not understand his defense attorney’s inexperience, unethical behavior and incompetence, which resulted in suspensions from the State Bar of California both before and after Mr. Woodruff’s trial. Mr. Woodruff did not understand whythetrial judge asked him repeatedly to waive his right to conflict-free counsel. Mr. Woodruff did not understand whythe prosecutor said so many badthings abouthis defense attorney. With an IQ as low as 66, Mr. Woodruff lacked the capacity to comprehendthat histrial was a sham in every phase,violating his rights to a fair trial and due process of law. And, with a third-grade reading level, Mr. Woodruff was not even awareof the court reporter’s contribution to the sham,using a “cut-and-paste”shortcut that cast doubt on the accuracy and reliability of the entiretrial transcript. In this brief, appellate counsel argues that Mr. Woodruff’s lack of understanding, defense counsel’s incompetence,the prosecutor’s misconduct, and thetrial judge’s failure to take corrective action combined to produce a grossly unfairtrial. As a result, Mr. Woodruffis entitled to a new trial with competent defense counsel and an unbiased judge. People v. Woodruff, 8115378 Appellant’s Opening Brief1 P P Il, STATEMENT OF APPEALABILITY This is an automatic appeal from a judgmentof death. (Pen. Code § 1239, sub. (b).)' ' All statutory references are to the California Penal Code unless otherwise indicated. People v. Woodruff, S115378 2 Appellant’s Opening Brief IV. STATEMENT OF THE CASE On January 17, 2001, the Riverside County District Attorney filed a two-count felony complaint against appellant, Steve Woodruff. (CT 1:1-2.)* Count 1 charged Mr. Woodruff with the murder of Charles Douglas JacobsIII, with the use of a firearm, for the purpose of avoiding or preventing a lawful arrest or perfecting an escape. Additionally, Count1 alleged the victim was a peace officer engagedin the performanceof his duties and the murder was committed while Mr. Woodruff waslying in wait. (CT 1:1; Pen. Code §§ 187, 12022.53, sub. (d), 1192.7 sub. (c)(8), 190.2, sub. (a)(5), (a)(7), (a)(15).) Count 2 charged Mr. Woodruff with the attempted murder of Benjamin Baker with the use of a firearm. (CT 1:2; Pen. Code §§ 664/187, 12022.53, sub. (c), 1192.7, sub. (c)(8).) Also on January 17, 2001, Mr. Woodruff appeared before Riverside County Superior Court Judge Christian Thierbach for arraignment. The judge appointed the Riverside County Public Defender’s Office to represent Mr. Woodruff. Arraignment was continued one weekat the request of Deputy Public Defender Gordon Cox. (CT 1:1-2,9.) * “CT”citations refer to the clerk’s transcript on appeal, “RT”citations to the reporter’s transcript on appeal, “SCT”citations to the supplemental clerk’s transcript on appeal, and “SRT”citations to the supplemental reporter’s transcript on appeal. “PRT”citations refer to the preliminary reporter’s transcript of proceedings on January 17 and 24, and February 6, 2001. People v. Woodruff, 8115378 3 Appellant’s Opening Brief On January 24, 2001, Mr. Woodruff appeared again before Judge Thierbach for arraignment, represented by Cox. Private attorney Mark Blankenship madean oral motion to substitute in as attorney of record. Judge Thierbach asked if Blankenship had been retained by Mr. Woodruff or his family. When Blankenship answered yes, the judge granted the motion. At Blankenship’s request, the judge continued arraignment two weeksto February 6, 2001. (CT 1:10; PRT 3-6.) On February 5, 2001, the Riverside County District Attorney’s Office filed a notice of intention to seek the death penalty. (CT 1:11.) On February 6, 2001, Mr. Woodruff pleaded not guilty to all charges and denied all enhancements. A preliminary hearing was scheduled for March 8, 2001. (CT 1:14; PRT 13, 17.) A special grand jury was convened on March 1 and 2, 2001. (CT 1:37.) On March 2, 2001, an indictment charged Mr. Woodruff with the murder of Jacobs, with use of a firearm, and with committing the murder for purposes of preventing arrest or perfecting escape. The indictment alleged the killing was of a peace officer in performanceof his duties and Mr. Woodruff was lying in wait. (CT 1:15-16.) The indictmentalso charged Mr. Woodruff with the attempted murder of Baker, a peace officer performing his duties, with use of a firearm. (CT 1:16.) On August 17, 2001, trial prosecutor Michael Soccio filed a request for inquiry and waiver regarding Blankenship’s qualificationsto try a People v. Woodruff, §115378 Appellant’s Opening Brief4 g death-penalty case. (CT 2:351-357.) At a hearing on the request on September 14, 2001, Judge Thierbach said he had “very, very serious concerns” about Blankenship’s preparation. (RT A:60.) Nonetheless, the trial judge said he did not have the powerto relieve Blankenship and would not relieve him. (RT A:63.) Time qualification of jurors began March 18, 2002. (CT 2:414; RT 1:140.) From four panels of prospective jurors that day, 154 prospective jurors were time-qualified for a two-monthtrial. (RT 1:341.) The judge askedhis clerk to get another panel of 50 prospective jurors for the following morning (RT 1:342), from which 29 prospective jurors were time-qualified, for a total of 183 prospective jurors. (RT 1:374.) At a discovery hearing after time-qualification concluded,thetrial judge determined that Blankenship wasnot preparedfor trial. (RT 1:419.) The judge excusedthe time-qualified jurors and orderedhisstaff to call each of them. (RT 1:457.) Time-qualification of potentialjurors began again the morning of November7, 2002, and took most of the day. (RT 2:626-801.) Four panels of potential jurors were questioned for hardships. The judge said 159 potential jurors from the four panels completed questionnaires, which he considered “a comfortable number.” He excusedthe fifth panel without time-qualifying its members. (RT 2:796; CT 17:4873-74.) People v. Woodruff, 8115378 Appellant’s Opening Briefpening Jury voir dire was November 19 and 20, 2002. Twelve jurors and five alternates were selected and ordered to return on December 3, 2002. (RT 3:868-1082; CT 17:4978-4881.) Thetrial started on December3, 2002. (RT 5:1260A.) The jurors and alternates were sworn in. Thefirst two prosecution witnessestestified. (RT 5:1263-1264; CT 17:4990.) The prosecution called 28 witnesses at the guilt phase, before resting on January 14, 2003. (RT18:3931; CT 18:5236.) Beginning January 15, 2003, the defense presented six witnesses in the guilt phase over four days: one of Mr. Woodruff’s neighbors (RT 19:3948); one of Mr. Woodruff’s brothers (RT 19:4021); a police detective (RT 19:4074); two mental health experts (RT 21:4327, 4497); and Mr. Woodruff. (RT 20:4129.) The defense rested on January 22, 2003. (RT 22:4702.) In rebuttal, the prosecution called two witnesses: a radiologist on January 22, 2003 (RT 22:4701); and a psychologist on January 23, 2003. (RT 23:4837.) Thejury retired to deliberate at 11:27 a.m. on January 28, 2003. At 2:30 p.m., the jurors indicated they had reached a verdict. The jury had found Mr. Woodruff guilty of all charges and enhancements and had found all special circumstancesto be true. (CT 19:5392-5393; RT 25:5272-5275.) People v. Woodruff, S115378 6 Appellant’s Opening Brief The jurors and alternates were ordered to return to court the next morning for the retardation phase. (CT 19:5393; RT 25:5277.) On January 29, 2003, as the retardation phase was aboutto begin, Blankenshiptold thetrial judge he did not have any witnesses ready. (RT 25:5281-5282.) Proceedings adjourned to the following Monday. (RT 25:5291.) On February 3, 2003, psychologist Curtis Booraem testified for the defense that Mr. Woodruff’s IQ score was 66, indicating mild mental retardation. (RT 26:5298.) No other witnessestestified at the mental retardation phase. The jurors retired to deliberate at 11:26 a.m. and at 1:30 p.m. indicated they had reached a verdict. (CT 19:5405.) The jury concluded that Mr. Woodruff was not mentally retarded. (CT 19:5406.) The penalty phase began February 4, 2003. (CT 19:5407.) The prosecution presented 14 penalty-phase witnesses. At the prosecution’s request, the trial judge granted immunity from prosecution to penalty-phase witness Dennis Smith for his testimony concerning events at a liquor store in Riverside in 1989. (RT 26:5495.) The judge said Smith did not waive his attorney-client privilege from Blankenship’ prior representation of him. (RT 26:5497-5498.) The judge said Blankenship could impeach Smith with past convictions involving moral turpitude, but could notsolicit information derived while representing Smith. (RT 26:5499.) People v. Woodruff, $115378 7 Appellant’s Opening Brief The judge allowed Pomonapolice officer Richard Machadoto testify about the substance of a statement taken on December23, 1999, from Eddie Phillips, who was hospitalized following a gunshot wound. (RT 27:5556-5558.) The prosecutor had told the court, outside the presence of the jury, that Phillips, also known as Mario Brooks, was unavailable to testify at the penalty phase because he was hospitalized in Mississippi after suffering a psychotic breakdown. However, the jury never heard of Brooks’ mental condition. (RT 26:5352-5353, 5464; RT 27:5550-5551; CT 19:5463.) Four witnessestestified for the defense at the penalty phase (RT 27: 5634, 5669, 5676, 5683), three of whom hadalsotestified in the guilt phase. (RT 19:4021; RT 21:4327, 4497.) The prosecution offered no rebuttal witnesses. The jury retired to deliberate in the penalty phase at 2:13 p.m. on February 6, 2003. (CT 19:5473.) While the jurors deliberated, the jury foreperson sent notes requesting the video of Mr. Woodruff’s questioning by two homicide detectives (CT 19:5467) and a read-back of Mr. Woodruff’s testimony. (CT 19:5468.) Both requests were granted. (CT 19:5467, 5468.) The jury foreperson also sent a questionto thetrial judge asking what would happenafter the verdict, as some jurors were willing to talk with family members, attorneys and the media, but some jurors were not willing to do so. Thetrial judge replied in writing that “anyone who People v. Woodruff, S115378 8 Appellant’s Opening Brief does not wish to talk to the attorneys, media,et al will not be required to do so and will be free to leave.” (CT 19:5469.) At 4:40 p.m. on February 6, 2003, the jurors indicated they had reached a verdict. The verdict, which was read in open court with the jurorspresent, fixed the penalty at death. The trial judge set sentencing for March 21, 2003, with the defense’s motion to reduce penalty due by March 5, 2003. The jurors were excused. (CT 19:5474.) In court on March 21, 2003,thetrial judge said he had received a motion from Blankenship requesting a continuance. (RT 28:5781.) Over the prosecution’s objection, the judge continued sentencing to April 17, 2003. (RT 28:5783, 5785.) Blankenship agreedto file his motion for new trial by April 4, 2003. (RT 28:5786.) On April 16, 2003, Blankenship filed a motion for newtrial. (RT 28:5483; CT 19:5483-5509.) In the motion, Blankenship madesix" allegations: 1. The evidence was insufficient to support the conviction or the death penalty (CT 19:5489-5490); 2. Thetrial court erred in denying the defense request to play for the jury portions of Mr. Woodruff’s interview with homicide detectives (CT 19:5491); 3 The allegations in the motion are numberedI, I, II, Il, IV and V. People v. Woodruff, S$115378 Appellant’s Opening Brief9 p 3. The prosecutor engaged in misconduct when he waveda piece of paperin front of the jurors (CT 19:5491-5492); 4, The prosecutor engaged in misconduct in demanding the removal of a juror who waslikely to be sympathetic to the defense (CT 19:5492-5494); 5. The prosecutor violated the requirements of Brady v. Maryland (1963) 373 U.S. 83 [83 S.Ct. 1194; 10 L.Ed.2d 215] in failing to disclose impeachmentevidence regarding two prosecution witnesses (CT 19:5494-5497); and 6. The prosecutor engaged in prejudicial misconduct in presenting the penalty-phase testimony Dennis Smith, which wasof “practically zero probative value.” (CT 19:5497-5498.) At the hearing on April 17, 2003, Blankenshipsaid he hadleft out of the written motion for new trial the issue of separate juries at the guilt and retardation phases, which the judge had deniedpretrial. (RT 28:5793-5794.) The judge denied the motion for a new trial. (RT 28:5811.) Also on April 17, 2003, the prosecution presented unsworn testimony of five witnesses in opposition to the automatic motion under Penal Code section 190.4 for reduction of sentence: Charles Jacobs Jr., the victim’s father (RT 28: 5817-5819); Cathy Miller, the victim’s mother (RT 28:5819-5822); Tamara Jacobs,the victim’s widow (RT 28:5822-5825); People v. Woodruff, S115378 10 Appellant’s Opening Brief Tara Schofield, the victim’s sister (RT 28-5825-5827); and Yvonne Baker, the wife of Officer Ben Baker. (RT 28:5827-5831.) Blankenship presented unsworn testimony of Mr. Woodruff’s brother John Woodruff (RT 28:5831-5834) and Mr. Woodruff in support of the automatic motion for reduction of sentence. (RT 28:5834-5838.) After reviewing the crime andthe factors in mitigation, thetrial judge denied the automatic motion for reduction of sentence. (RT 28:58510.) Thetrial judge sentenced Mr. Woodruff to 20 years in prison for unlawful discharge of a firearm (RT 28:5850-5851); 15 years to life for attempted murderofa police officer (RT 28:5851); 25 years to life for the use ofa firearm in killing Jacobs (RT 28:5859); and death for first-degree murder, with three special circumstances. (RT 28:28:5854.) On June 13, 2003, the prosecutor and Blankenship appeared in court for the record correction hearing under Penal Codesection 439.54. The trial judge said he hadreceived a declaration from the prosecutor seeking certain record changes. Blankenship requested an extension of timetofile corrections becausehesaid the transcripts were about five feettall. (RT 28:5861.) The judge reset the record correction hearing for two weekslater — June 27, 2003. (RT 28:5862.) Blankenship wasabsent from the record correction hearing on June 27, 2003. Instead, another attorney madea special appearance onhis behalf. People v. Woodruff, $115378 11 Appellant’s Opening Brief Blankenship had submitted a declaration saying he had “performed the tasks required for certification of the record in this case. The reporter’s transcripts are complete and accurate as they stand[,] requiring no corrections on mypart[.]” (ASCT 1:41.) Thetrial judge ordered the additions and corrections requested by the prosecutor to be made, andthen certified the record as complete. (RT 28:5863.) People v. Woodruff, S115378 12 Appellant’s Opening Brief V. STATEMENT OF FACTS People v. Woodruff is a Riverside death-penalty case with a mentally limited defendant who thoughthis volunteer attorney had been sent by a “higher up,” even thoughthe attorney had nevertried a murder case and was on probation with the State Bar of California after a suspension for incompetence and unethical behavior. It is a case in which the prosecutor made a record of defense counsel’s ineffective assistance, and then took advantageofit. It is a case in whichthe prosecutortried to removethefirst eight black jurors, and defense counsel resisted removing any of them, including one whosaid his mind wasalready made upthat the defendant was guilty and deserved to be executed. It is a case in whichthetrial judge, a formerprosecutor, observed that defense counsel was “in over your head,” but insisted he was powerless to do anything aboutit other than to secure waivers of the defendant’s rights. It is a case in which the court reporter, whose marriage to a deputy district attorney was performed by the trial judge, cut and pasted portionsof thetrial transcript and purported that whathappenedin one place in the record happenedidentically in other places as well. It is a case in which the defendantsaid repeatedly that he did not understand what was happening. People v. Woodruff, 8115378 Appellant’s Opening Brief13 £ A loud radio WhenSteve Woodruff was arrested for the murder of a Riverside police officer on January 13, 2001, he was 37 years old. He had never held a job for more than 13 months. His longest job had been more than a decade earlier, bundling newspapersat the Riverside Press Enterprise, a daily newspaper he wasincapable of reading with his third-grade reading level. He had suffered head injuries as a young adult. Sometimes he had lived in his car. For most of his adult life, he had survived by staying with a succession of girlfriends subsisting on welfare. (RT 1:415; RT 20:4281; RT 22:4547, 4561-4563, 4634; RT 23:4875.) At the beginning of 2001, Steve Woodruff was living with his girlfriend Brendie Bischoff and their 4-year-old daughter, Brianna Woodruff, in the downstairs unit of a two-story, 90-year-old house on LemonStreet, a few blocks north of downtown Riverside. His mother had lived in the upstairs unit for eight years. Mr. Woodruff, his girlfriend and their daughter had moved to LemonStreet about five monthsearlier, when his younger brother John Woodruff and his family had moved out. (RT 20:4130-4131; RT 27:5655.) The brothers had agreed that some family memberneededto live in the house to keep an eye on their mother, Parthenia Carr, who had been involuntarily hospitalized after a mental breakdownin the mid-1990s and hadlived on disability incomesince then. (RT 10:2278, 2281-2282; RT People v. Woodruff, 8115378 14 Appellant’s Opening Brief 27:5656-5657.) Mrs. Carr was knownin the neighborhoodas “‘Miss Polly,” wholikedto sit on the landing outside her front door and play “oldies music” on herradio at full volume. (RT 5:1364; RT 8:1822, 1826; RT 10:2310; RT 19:3949.) On the sunny afternoon of Saturday, January 13, 2001, Miss Polly played her radio on the landing. (RT 10:2310.) Holly Menzies owned the homenext doorto Miss Polly. Ms. Menzieslived in the downstairs unit, had tenants living upstairs, and had listed the property for sale. (RT 5:1301-1303, 1308.) Miss Polly’s loud radio had led to numerous disputes with Ms. Menzies. In the last several months, several calls had been madeto the police, which sometimes quieted things down. (RT 5:1308, 1330, 1349-1350.) On the afternoon of January 13, 2001, Ms. Menziescalled the police again. (RT 5:1308.) Benjamin Baker was a 25-year-old rookie Riverside police officer, four weeks off probation, working the day shift on the downtownbeat. (RT 5:1441, 1446, 1447.) Baker was dispatched to respond to the loud-radio complaint 13 minutes after Ms. Menzies’ call. (2SCT 2:325*.) Baker was less than three miles away whenhereceivedthe radio dispatch. (RT 5:1449-1450.) He arrived in a few minutes. As he drove along Lemon Street, Baker spotted Miss Polly’s white radio on the landing at the top of an exterior flight of stairs. (RT 5:1452.) * “SCT2”refers to the second volumeofthe Second Supplemental Clerk’s Transcript on Appeal. People v. Woodruff, $115378 15 Appellant’s Opening Brief Bakerparkedhis police cruiser in front of Ms. Menzies’ house and walked next door, where he saw two small children playing on the downstairs porch. (RT 5:1450, 1454.) The screen door wasclosed, but the main door was ajar. He could see someone moving about inside. Baker askedif the person had called the police. A male voice from insidesaid no. Bakerasked if it was his radio. The voice said it was his mother’s. (RT 5:1455.) Bakerleft the porch and wentup the exterior stairs. ([bid.) When he reachedthetop, he turned off the radio and knocked on the door. Baker would recall: “Polly Carr opened the main door and openedthe screen door, and she began screaming and yelling, saying that it was her radio,it’s her property. I have noright to touch herradio, that type of thing.” Baker told Miss Polly that her neighbors had complained about the radio. She continued yelling. He considered her out of control. (RT 5:1456.) Bakerradioed for the assistance of a supervisor. (RT 5:1457.) Miss Polly reached downand turnedthe radio back on, full volume. (RT 5:1459.) Baker went next doorto talk with Ms. Menzies. Baker asked if Ms. Menzies would sign a citizen’s arrest form. (RT 5:1314.) She signed, but asked if she could talk to Miss Polly to try to resolve the situation informally. (RT 5:1315.) Baker said he thought that was not a good idea, People v. Woodruff, S115378 16 Appellant’s Opening Brief but he followed Ms. Menziesupthestairs to Miss Polly’s landing. (RT 5:1460, 1462-1463; RT 6:1466-1467.) When Ms. Menzies reachedthe landing, she turned down the volume on the radio. (RT 5:1315.) Miss Polly opened the door, and yelled at Ms. Menziesto get off her porch. Ms. Menzies left and went home. (RT 5:1316.) Baker grabbed Miss Polly by the right wrist to place her under arrest. (RT 6:1469-1471.) Anotherof Miss Polly’s sons, Claude Carr, had been asleep in her guest bedroom. Hearing a disturbanceat the front door, he wentout to see what was happening. (RT 10:2267, 2530.) With Carr now confronting him, Bakerreleased his grip on Miss Polly’s wrist, and she backed up into her house. (RT 6:1472-1473; RT 11:2551.) Baker was aboutto arrest Carr for interfering in the arrest of his mother when Bakerheard a voice from downstairs shouting that the officer better not touch “my momma.” (RT 6:1474.) Baker made an “11-11”call on his police radio — officer needs immediate assistance. “I had three people there who weren't happy with me, and I decided I needed some backupthere real quick.” (RT 6:1476.) Within a couple minutes, Detective Charles Douglas JacobsIII arrived in his police cruiser. (RT 6:1479.) Through the front window of the downstairs apartment, Mr. Woodruff could see Jacobs park in front of the house,get out of the car and run toward the stairs. (RT 20:4177-4178.) As Jacobs wentupthe stairs, Baker came down. (RT 6:1480.) Baker briefed People v. Woodruff, $115378 Appellant’s Opening Brief17 pening Jacobs on the situation: An uncooperative woman upstairs was refusing to turn her radio down; a son approached Bakerupstairs; and another guy with a threatening voice was in the downstairs unit. Baker suggested they wait for the police supervisor to arrive before arresting Miss Polly. (RT 6:1481- 1482.) From inside his apartment, Mr. Woodruff could hear the officers talking. He said he heard oneofficer say, “I thought you was gonna wait for a sergeant,” and the otherofficer say, “I ain’t waitin’ on nobody.” (RT 20:4258.) The two officers climbed the stairs. (RT 20:4180.) Mr. Woodruff went to a bedroom closet, got a handgun and placedit on top of his television. (RT 20:4181, 4183.) When Bakerand Jacobs approachedthetop of the stairs, they told Miss Polly she wasbeing arrested for disturbing the peace. According to Baker, he grabbed Miss Polly’s right wrist; Carr tried to grab Baker; Jacobs grabbed Carr bythe left wrist; Miss Polly pulled away from Baker; and Bakerlet go of Miss Polly so he could assist Jacobs with Carr. (RT 6:1483- 1485.) Mr. Woodruff heard his mother say, “You’re hurtin’ me.” He grabbed the handgun from ontop of the television and went out on the porch. (RT 20:4186-4190.) Neighbor Mark Delgadotestified that he was in his driveway washing his wife’s car the entire time Baker wasacrossthestreet. (RT People v. Woodruff, S115378 ° 18 Appellant’s Opening Brief 7:1819.) Delgado said Mr. Woodruff cameout onto the porch carrying a handgunin his right hand, wentoverto the staircase, held the gun up,fired twice, and walked backinto the house. (RT 7:1829-1830.) Ms. Menzies said she watched from her bathroom window,though she could see only the legs from the knee downofthree people on the landing. (RT 5:1316.) She said she heard Carr call out, “No, don’t,” and then she heard gunshots. (RT 5:1318.) Shetestified that she initially thought a police officer had shot one of her neighbors. (RT 5:1411.) Bakersaid he heard a gunshot, let go of Carr, dropped his handcuffs, grabbed his gun, and saw Mr. Woodruff’s gun pointed in his direction. Bakersaid he fired twice, entered Miss Polly’s apartment, and then reached out and fired a third shot. (RT 6:1487-1490.) When the shooting stopped, Baker saw Jacobs lying on his back just inside MissPolly’s apartment,his feetstill on the landing. Blood was gushing from Jacobs’ nose. (RT 6:1490-1491.) Baker made call on his police radio of “11-99,” officer down. (RT 6:1491-1492.) Soon, officers responding to the earlier 11-11 call arrived from all directions — city police officers, and also California Highway Patrol officers, sheriff’s deputies and university and community college police officers. (RT 8:1962-1963; RT 12:2757.) Three Riverside officers took positions behind palm trees in front of the house. (RT 8:1963; RT 10:2191.) People v. Woodruff, 8115378 Appellant’s Opening Brief19 In a few minutes, from inside the downstairs unit a voice called out, “Hey, I’m coming out.” (RT 10:2193.) After firing the shots up the stairs, Mr. Woodruff had gone back inside his apartment, had gotten a rifle from the pantry and hadreturned to the front door. When he looked out, he saw police officers everywhere. He took off all his clothes so the officers would know he was unarmed,threw the rifle out the front door, shouted, “J give up,” and crawled out naked. (RT 20:4195-4196.) Officers surrounded Mr. Woodruff, handcuffed his hands behindhis back, and placed him in a police cruiser. (RT 12:2675-2676.) He was taken to the detective bureau, where he was given an orange jumpsuit. (RT 10:2236.) The officer who drove him to the detective bureau testified that Mr. Woodruff volunteered statements that he did not meanto kill the officer — he just panicked. Hesaid he did not want the officer to die. (RT 10:2198-2199, 2229.) An ambulance took Jacobs to Riverside Community Hospital, where he was pronounced deadat 3:07 p.m., about 40 minutesafter the shooting. The cause of death was determined to be a penetrating gunshot wound to the head that entered the left nostril and lodgedin the right rear of the skull. (RT 12:2761-2763; RT 18:3920; CT 2:570.) People v. Woodruff, 115378 Appellant’s Opening Brief20 Defense counsel When MarkBlankenship volunteered to represent Steve Woodruff in his capital murder case, Mr. Woodruff thought“there is a higher up that sent Mr. Blankenship to me.” (RT A:62.) Defense and prosecution experts would later agree that Mr. Woodruff had low intelligence — their only dispute was how low. The defense expert calculated Mr. Woodruff’s IQ as 66, mildly mentally retarded. (RT 22:4543.) The prosecution expert rated Mr. Woodruff’s IQ as 78, borderline butstill well below average. (RT 23:4901.) Because of his mental limitations, Mr. Woodruff had no wayof knowing or appreciating just how unqualified his attorney was to represent him. When Blankenship volunteered to represent Mr. Woodruff pro bono, Blankenship wason probation with the State Bar of California, having been reinstated to practice just three monthsearlier after completing a six-month suspension for incompetence and unethical behavior. Blankenship was primarily a civil practitioner and had nevertried a murdercase,let alone a death-penalty case. (RT A:33; RT 15:3299.) At Blankenship’s second appearance on Mr. Woodruff’s behalf, February 6, 2001, the trial judge confronted Blankenship in chambers with what the judge characterized as “courthouse gossip and speculation” regarding Blankenship’s suspension from practice. (PRT 8.) Blankenship People v. Woodruff, 8115378 1 Appellant’s Opening Brief confirmed his previous six-month suspension but said he had been readmitted to practice with five years’ probation. (PRT 8-9.) Trial prosecutor Michael Soccio had his own concerns, which grew over time. After seven months of dealing with Blankenship onpretrial matters, Soccio filed a written request for the trial court to inquire into Blankenship’s competenceto try a capital case andfor thetrial court to obtain waivers from Mr. Woodruffof his right to effective assistance of counsel. (CT 2:351-356.) Five times before the trial began, the trial judge sought to have Mr. Woodruff waive his rights to effective assistance of counsel and/or conflict- free counsel. (RT A:61-62; RT 1:451; RT B:483-484, 486, 585.) A sixth waiver inquiry came during the guilt phase oftrial, when the judge halted the proceedings to ask Mr. Woodruff if he wanted to continue thetrial with Blankenship as his counsel. The judge told Mr. Woodruff: “I believe your case was prejudiced extremely” by Blankenship’s cross-examination of the prosecution investigator, in which Blankenshipsolicited the investigator’s opinion that the defendant was guilty and the reasonsfor that opinion. (RT 16:3610-3618.) At no time did the judge inquire into Mr. Woodruff’s competence to waive his constitutional rights, in spite of Mr. Woodruff’s repeated statements that he did not understand what the judge was saying to him. (RT A:57; RT B:483; RT 16:3612.) People v. Woodruff, 8115378 22 Appellant’s Opening Brief Mentalretardation Eight monthsafter taking the case, without conducting any investigation into Mr. Woodruff’s mental state, Blankenship declared at a hearing that his client was competent and did not have an insanity defense at all. Blankenship told the court: “I haven’t evaluated that issue, and I don’t intend to.” (RT A:44.) However, nine monthslater, Blankenship cameinto court and announcedthat he needed to make a motion to dismiss the death penalty in light of Atkins v. Virginia’, an opinion the United States Supreme Court had just issued holding that mentally retarded defendants could not be executed. (RT B:510.) In the meantime, four days before the scheduledstart ofjury selection, Blankenship had contacted a potential defense expert by telephoneforthe first time. Blankenship asked Dr. Curtis Booraem, a clinical psychologist, to conduct a standard psychological evaluation. Booraem specialized in sexual dysfunction and had never evaluated anyone at a jail. (RT 22:4536, 4592-4594.) Attrial, Booraem testified that he had been given no reason to suspect Mr. Woodruff was mentally retarded before he saw him. (RT 22:4536.) > (2002) 536 U.S. 304 [122 S.Ct. 2242]. People v. Woodruff, S115378 Appellant’s Opening Brief23 p Booraem’s approach wasto evaluate Mr. Woodrufffirst with a 567- question MMPI’test, which was read to Mr. Woodruff by Blankenship’s paralegal because of Mr. Woodruff’s inability to read. Booraem administered the WAIS-III’intelligence test himself. (RT 1:415.) Booraem’s preliminary assessment was that Mr. Woodruff had a full-scale IQ of 69, indicating that he was mildly mentally retarded. (RT 22:4542.) Two monthslater, after re-evaluating his data, Booraem revised his assessment downthree points. (RT 22:4543.) Prosecution psychologist Dr. Craig Rath testified in the guilt phase that he did not use the MMPIin evaluating Mr. Woodruff, calling that test “totally inappropriate” for someone thoughtto be mentally retarded because it requires a sixth- or seventh-grade reading level to be valid. (RT 23:4896- 4897.) Five months after Booraem’s testing, Rath also administered the WAIS-III to Mr. Woodruff, although studies had indicated that repeat test results after such a brief interval would be invalid. Nonetheless, Rath assessed Mr. Woodruff as having a full scale IQ of 78, above the cutoff for mental retardation. (RT 23:4901; CT 17:4849.) The day before the retardation phase was scheduledto begin, Blankenship told the trial court he had four witnesses: Mr. Woodruff’s mother and brother John Woodruff, and experts Booraem and Dr. Joseph ° Minnesota Multiphasic Personality Inventory ’ Wechsler Adult Intelligence Scale, third edition People v. Woodruff, $115378 Appeilant’s Opening BriefP 24 P Wu,all of whom hadtestified in the guilt phase. (RT 25:5269.) However, with the court in session and the retardation phase aboutto begin, Blankenshiptold thetrial judge he did not have any witnesses readyto testify. Blankenship said John Woodruff did not wantto testify because he did not wantto say negative or detrimental things about his brother; Mrs. Carr felt the same way. Blankenship said Wu wasin Italy and would not return until the next week, which was when Booraem had expected to testify also. (RT 25:5281-5282.) With no defense witnesses available, the trial adjournedto the following Monday.(RT 25:5291.) Ultimately, Booraem wasthe only witness totestify at the retardation phase. He repeated his conclusion that Mr. Woodruff’s IQ score was 66, mildly mentally retarded. (RT 26:5298.) Booraem alsotestified that Mr. Woodruff had adaptive deficits in communication, academic performance and workperformance. (RT 26:5305.) The prosecution called no witnessesat the retardation phase. (RT 26:5325.) In closing argument, prosecutor Soccio appealedto the jurors’ prejudices about mental retardation: “If a person doesn’t look retarded or act retarded, it’s because they’re not retarded. It doesn’t take any professionalto let you know that.” (RT 26:5344.) The jury deliberated about two hours before concluding that Mr. Woodruff was not mentally retarded. (CT 19:5405.) People v. Woodruff, S115378 25 Appellant’s Opening Brief Penalty phase The penalty phase began the day after the retardation phase. (CT 19:5407.) The prosecution presented 14 penalty-phase witnesses. They testified to police calls involving Mr. Woodruff andhis girlfriends in 1988 and 1999 (RT 26:5409-5415, 5424-5427), an exchange of gunfire in a liquor store parking lot in 1989 (RT 26: 5443-5445, 5468-5471, 5502-5506; RT 27:5574), a traffic stop outside Phoenix, Arizona,also in 1989 (RT 26:5509; RT 27:5564-5565), a fight in a pizza parlor parking lot in 1993 (RT 26:5379-5381, 5394-5397), and a shooting incident outside a Pomona homein 1999. (RT 26:5526-5528; RT 27:5556-5560.) Only the Arizona traffic stop had resulted in Mr. Woodruff’s arrest. (RT 27:5564-5565.) Oneof the witnesses to the liquor store incident, Dennis Smith, testified that he got in a fight with two men and then exchanged gunfire with them in the parking lot while Mr. Woodruff wasinside the store. (RT 26:5503.) Because Blankenship had previously represented Smith on other charges, the trial judge would not allow Blankenship to impeach Smith with any information he had learned while representing Smith. (RT B:584-585.) The prosecution had plannedto call as a penalty-phase witness the alleged victim of the Pomonaincident, whom the prosecution identified as Mario Brooks, also knownas Eddie Phillips. However, the prosecutor told the court outside the jury’s presence that Brooks was unavailable totestify People v. Woodruff, 115378 26 Appellant’s Opening Brief because he washospitalized in Mississippi after suffering a psychotic breakdown. (RT 26:5352-5353, 5364-5365, 5464; RT 27:5545-5547.) In the absence of Brooks, the judge allowed Pomonapolice officer Richard Machadoto testify over defense objection that on December23, 1999, he took a statement from Eddie Phillips, who was hospitalized for a gunshot wound. Machadosaid Phillips told him that while he sat in the passengerseat of a van, Mr. Woodruff approached with an object, possibly a bottle, and tried to hit him. Machadosaid Phillips said Mr. Woodruff and another male or twotried to open the van doorto pull Phillips out, but he backedthe van out of the driveway, hit another vehicle, ran away andcalled the police. Machadosaid he did not know if Phillips and Brooks were the same person. (RT 27:5557-5561.) Before presenting the defense case in the penalty phase, Blankenship told the trial judge he was having difficulty getting family members to show upat the courthouse. Hesaid he thoughtthey believed it was futile to testify. (RT 27:5626.) Four witnesses testified for the defense at the penalty phase. Mr. Woodruff’s brother John Woodrufftestified that Steve Woodruff wasfive years older than John and they had different fathers. John Woodruff said he remembered their mother asking Steve to help John with his homework, but Steve was unable to do so because he could neither read nor write. (RT 27:5637-5638.) John Woodruff said when they were adults, if Steve People v. Woodruff, S$115378 27 Appellant’s Opening Brief needed a form filled out or needed something read, he would ask John to read it, mostly dealing with bills. (RT 27:5645-5646.) Psychiatrist Joseph Wutestified that in his opinion Mr. Woodruff had a brain injury, in what Blankenship characterized as “his lobes,”as a result of being run over by a car in 1995. (RT 27:5676.) Psychologist Curtis Booraem testified that Mr. Woodruff had the mental age of someone9 or 10 years old. (RT 27:5683.) Booraem said in his experience as a psychologist, children of that age should not possess dangerous weaponsbecausethey generally do not understand consequences — they see weaponsas toys. (RT 27:5686.) Booraem said that even though Woodruff engagedin a terrible act, when he was doingit he did not appreciate that it was even criminal; he wasjust reacting, and was unable to conform his behavior to the law. (RT 27:5687-5688.) At the conclusion of Booraem’s testimony, the defense rested. The prosecution offered no rebuttal and rested also. (RT 27:5691.) The jury deliberated in the penalty phase for about two and a half hours before reaching a death verdict. (CT 19:5473-5474.) On April 17, 2003, Judge Thierbach sentenced Mr. Woodruffto death. (RT 28:5854.) The judge said one penalty-phase witness’s testimony “suggests Mr. Woodruff to be nothing more thana street thug whowill resort to violence in an effort to get what he wants.” The judge said the People v. Woodruff, 115378 28 Appellant’s Opening Brief shooting of Mario Brooksin 1999,testified to by Officer Machado, demonstrated Mr. Woodruff’s history of violent conduct. (RT 28:5848.) State Bar The State Bar of California suspended Blankenship from practice for nine months on February 24, 2006. The State Bar’s website explains: “Blankenship stipulated to 17 acts of misconduct in seven cases. Six cases involvedhis failure to perform legal services competently, and he abandonedhis client in the seventh.” Fourof the cases involved legal services that Blankenship failed to perform for other clients from 2001 to 2003 while he also represented Mr. Woodruff. Blankenship resigned from the State Bar on September 14, 2006, with charges pending. (See State Bar of California, Attorney Search, Mark Irvin Blankenship -- #130506, http://members.calbar.ca.gov/fal/Member/Detail/130506.) Cut and Paste While readingthe trial transcript during record correction, appellate counsel discovered errors in the judge’s instructions to potential jurors in time qualification that were repeated before subsequent panels. A closer examination revealed that entire transcript passages were identical — errors and all. This “cut and paste” pattern appearedin the instructions in the March 2002 time qualifying of jurors and again when time qualifying was repeated in November 2002. The mostflagrant passage was in what the People v. Woodruff, 8115378 29 Appellant’s Opening Brief judge purportedly said to the fourth and final panel of potential jurors, the afternoon of November 7, 2002: Youarethefirst of potentially five panels of jurors this size whowill be in this courtroom throughout the day. And those of you whosurvivethis process that you go throughthis morning will be askedtofill out a detailed questionnaire ... (RT 2:761, lines 13-21 (Emphasis added).) Appellate counsel challenged the veracity of the reporter’s transcript in a motion for newtrial, filed in the trial court on November 21, 2008, in conjunction with an alternative motion to correct, augmentandsettle the record. In a hearing March 12, 2009, on the motion for newtrial, a Riverside County deputy district attorney disclosed that the court reporter at trial “is married to an assistant district attorney ... within ouroffice.” (SRT 5-6, March 12, 2009.) Thetrial judge responded with mocksurprise: “She is, really? I performed the ceremony. I know.” (SRT 6, March 12, 2009.) Atthat hearing,thetrial judge acknowledged“there are undoubtedly examples of cut-and-paste and so on”in thetrial transcript. Nonetheless, the trial judge concluded,“there is no showing of deliberate falsification of anything in any of the transcripts,” and denied the motion for newtrial. (SRT 14, March 12, 2009.) On January 8, 2010,the trial judge certified the transcript to be “complete and accurate” over appellant’s continuing objection. (SRT 2-3, January 8, 2010.) People v. Woodruff, S115378 30 Appellant’s Opening Brief VI. CLAIMS FOR RELIEF A. Pretrial CLAIM A1: Trial judge failed to protect Mr. Woodruff’s constitutional rights to fair trial, assistance of counsel, due process. From the outset of Mr. Woodruff’s case, Judge Christian Thierbach was aware that defense counsel Mark Blankenship was“in over your head” and unqualified to try a death-penalty case. Nonetheless, the trial judge failed to intervene, instead allowing an incompetentattorney to try a death- penalty case of a mentally deficient client. Additionally, the trial judge repeatedly made comments on the record that misled the inexperienced defense attorney into thinking he had a high threshold for obtaining co-counselin the capital case. Asa result, Blankenship did not request co-counsel andtried the case by himself, although he had neverbefore tried a murdercase, let alone a death-penalty case. Trial prosecutor Michael Soccio, having made a record of Blankenship’ s incompetence, twice askedthetrial judge to obtain pretrial waivers from Mr. Woodruff of his constitutional right to effective assistance of counsel. However, thetrial judge did not actually ask Mr. Woodruff to waivehis right to effective assistance either time; he merely asked Mr. Woodruffif he desired to keep his attorney and whether he was comfortable with how his case was being handled. Both timesthetrial People v. Woodruff, 8115378 3] Appellant’s Opening Brief judge made inadequate inquiries into the defendant’s comprehensionofhis constitutional rights and how defense counsel’s actions were jeopardizing them. As a result of (a) the trial judge’s failure to intervene to protect Mr. Woodruff’s constitutional rights, (b) the trial judge’s misleading description of the threshold for obtaining co-counsel, and (c)the trial judge’s inadequate inquiry into Mr. Woodruff’s understandingof his rights, Mr. Woodruff was denied his state and federal constitutional rightsto a fair trial, effective assistance of counsel, the heightened reliability required in death-penalty proceedings, and due processof law. Facts Less than a month after Mr. Woodruff’s arrest, Judge Thierbach was already aware that Blankenship “had a problem with the State Bar and, in fact, had your license suspendedfor a time.” (PRT 7.) Blankenship had appeared to come out of nowhere to represent Mr. Woodruff pro bono, a weekafter the county public defender’s office had been appointed. (PRT 1, 3.) Judge Thierbach, who considered himself familiar with the lawyers whoregularly practiced criminal law in Riverside County, said he had never met Blankenship before he became Mr. Woodruff’s attorney. (RT A:36; PRT 8.) At an in camera hearing February 6, 2001, Judge Thierbach confronted Blankenship with whatthe judge characterized as “courthouse People v. Woodruff, S115378 39 Appellant’s Opening Brief gossip and speculation.” Blankenship confirmedthat he had served a six- month suspension from practice and was on probation for five years. (PRT 8-9.) Trial prosecutor Soccio had concerns of his own. At the second post-indictment hearing, March 8, 2001, Soccio said he wantedto put on the record that he had spoken with defense counsel“and inquired asto whetheror not he'll be seeking second-chair Keenan’ counsel.” The prosecutor said “rumorhasit” that Mr. Woodruff could not afford to pay for a private attorney. “At some point those issues need to be addressed, whetherthere will be another attorney coming on or whetherit will be a request for the Court to appoint someoneto assist.” (RT A:6.) Blankenshiptold the court a request for Keenan counsel was “a conceptthat’s novel to me, Your Honor, but I would like to evaluate that, and perhapsafter consultation make that request.” (RT A:7.) Thetrial judge said he expected Blankenship to learn from his research that “the justification for appointing second counsel — orasit’s ® Blankenship was suspended from practice for six months on April 23, 2000, having stipulated to 10 counts of misconductin three cases. Blankenship resigned from practice with charges pending, effective September 14, 2006, having stipulated to 17 acts of misconductin seven cases, including failure to represent six clients competently and abandonmentof the seventh client. (See http://members.calbar.ca.gov/search/member_detail.aspx?x=130506.) ° The option of appointment of co-counselin death-penalty cases was authorized by Keenan v. Superior Court (1982) 31 Cal. 3d 424 [180 Cal.Rptr. 489, 640 P.2d 108], and subsequently was codified under Penal Codesection 987, subdivision (d). People v. Woodruff, 8115378 Appellant’s Opening Brief33 pening referred to, Keenan counsel, is limited to some rather narrowly defined situations, particularly regarding the complexity of the case, the types of issues that will be raised during the course of the case, and various related factors.” bid.) After seven months of interaction with Mr. Woodruff’s defense counsel, Soccio raised his concernsin writing about Blankenship’s lack of competence. On August 17, 2001, the trial prosecutor filed a six-page “Request for Inquiry and Waiver Regarding Attorney’s Qualifications.” (CT 2:351-356.) The request asked for an on-the-record hearing “regarding attorney Mark Blankenship’s qualifications to try a capital case.” The request askedthetrial judge to “inquire as to whetheror not the defendant is fully informed about Mr. Blankenship’s history and legal experience and that the defendant is making an informed andintelligent decision in his selection of his attorney.” (CT 2:351.) The prosecutor suggested that Blankenship “does not have extensive criminaltrial experience” and asked the court to inquire whether Blankenship had tried a murdercase or a case with special circumstances or a death-penalty case. “The prosecutorin this matter is concerned about statements that Mr. Blankenship has madethat may,in fact, indicate the lack of ability to try this case.” (CT 2:354.) Amongthe prosecutor’s concerns were: e Blankenship had “inquired as to why he would need an investigator in this case. He went on to ask what kind of things the investigator might do.” People v. Woodruff, $115378 34 Appellant’s Opening Brief e Blankenship “said that he had no funds available to pay for discovery. The prosecutor advised him that he could apply for some moniesfrom the court and that other seasoned criminal defense lawyers in the courthouse could advise him on howto do that. He was not awarethat he could ask for any assistance.” ° Blankenship hadtold the prosecutor that he had not picked up discovery from the district attorney’s office because he had no funds. ° Blankenship had notacted on the prosecutor’s suggestion that he consider asking the court to appoint a second counsel who wasfamiliar with capital litigation. e Blankenship hadsaid at the last court hearing that he would not attenda capital litigation seminar that he had previously said he plannedto attend. e Blankenship did not provide reciprocal discovery, did not inquire about further discovery from the prosecution or “other action that would normally accompanycapitallitigation.” (CT 2:355.) The prosecutor askedthetrial judge to advise Mr. Woodruff that Blankenship had been suspended from the practice of law “for lack of competence.” The prosecutor also askedthetrial court to obtain a waiver from Mr. Woodruff concerning Blankenship’s suspension from practice. (CT 2:355-356; RT A:65.) At a hearing on the prosecutor’s request, Soccio said hefiled the request for waiver of Mr. Woodruff’s right to effective assistance “‘after deliberating with myself for months as to whetheror not it was the proper thing to do based on some concerns, especially becausethis is a capital People v. Woodruff, 5115378 35 Appellant’s Opening Brief case. ... [I]t appeared to me, as we were moving along overthe last few months, that certain events were either not taking place that you would normally expect to see in capital litigation, or some things were happening that seemed out of character.” (RT A:29-30.) Blankenship characterized the prosecutor’s motion as “specious.” (RT A:31.) However, Blankenship acknowledged that he previously had “trouble with the State Bar,” had been suspended from practice, and was on probation. Hesaid he had not handled a capital case, so he felt the need to obtain additional counsel. (RT A:33.) Judge Thierbach observedthat it was “kind of a unique situation” because Blankenship was “neither appointed norretained,” but pro bono, “handling this out of the goodness of your heart, I guess.” (RT A:34.) Thetrial judge asked Blankenship a series of questions abouthis failure to file motions normally filed in death-penalty cases (motion challenging sufficiency of the evidence, motion for change of venue, motion for Pitchess v. Superior Court'® discovery), about whether he had sought co-counsel, whether he had considered an insanity defense, whether he had consulted with mental health professionals, and whether he had conducted a penalty-phase investigation — none of which Blankenship had done. The judge also inquired about Blankenship’s failure to request '0 (1974) 11 Cal.3d 531 [113 CalRptr. 897, 522 P.2d 305], subsequently codified in California Evidence Code sections 1043-1047. People v. Woodruff, 3115378 36 Appellant’s Opening Brief investigative funds, whichthetrial judge said “would be not only ineffective assistance of counsel but downright criminal.” (RT A:35-51.) Thetrial judge asked if Blankenship had talked to anyone about becoming co-counsel. Blankenship said he had not doneso, but he asked the court, “Is there a way that I can bring in another counsel, I guess a Keenan counsel, howeverthat is defined, and this Court can compensate that counsel in a mannerthat doesn’t condition his compensation on reporting to the Court as to what he’s doing?” (RT A:39.) The judge replied that Keenan counsel could be appointed if procedures regarding requests for second counsel were followed. (RT A:39-40.) Blankenship never requested the appointment of Keenan counsel. He represented Mr. Woodruff by himself throughoutthe trial. (RT A:33; RT 15:3299.) After Judge Thierbach finished questioning Blankenship abouthis preparationsfor the case, the judge quoted at length from this Court’s opinion in Smith v. Superior Court (1968) 68 Cal.2d 547 [68 Cal.Rptr.1, 440 P.2d 65], and paraphrased the Court of Appeal holding in Peoplev. Escarcega (1986) 186 Cal.App.3d 379 [230 Cal.Rptr. 638], both cases involving limitations on trial judge’s ability to remove incompetent counsel over defense objections. (RT A:51-57.) Thetrial judge said the decision about whether Blankenship remained as defense counsel belonged to Mr. Woodruff, whoseintelligence People v. Woodruff, 8115378 Appellant’s Opening Brief37 g level, according to subsequenttest results, was either mildly mentally retarded or borderline. Thetrial judge said he did not have the powerto relieve defense counsel and would not relieve him. (RT A:63; RT 22:4543; RT 23:4901.) Six monthslater, after two days of time-qualifying of potential jurors, the trial judge learned that the defense psychologist had conducted preliminary psychological testing of Mr. Woodruff only the previous day and might need another month to analyze the data and determineif further testing was necessary. (RT 1:414-417, 426.) Thetrial judge expressed his frustration with Blankenship’s lack of preparation, and said he would not want to be in position to sentence someoneto death “who wentintotrial inadequately prepared. I admire your zealousness and your desire to defend this man,andthis is nothing personal against you, but I think you’re in over your head here.” (RT 1:419.) Soccio listened to Blankenship speak for what the prosecutor characterized as 30 minutes in defense of the “tactical” nature of his actions. The prosecutor then concurred with the judge’s view: I don’t think anybody could look at the record in this case, any reviewing court, and not, at least on its face, believe that Mr. Blankenshipis in over his head or there's ineffective assistance of counsel if you just read what has occurred. (RT 1:429-430.) People v. Woodruff, 115378 38 Appellant’s Opening Brief Soccio askedthetrial judge “to take a waiver again from Mr. Woodruff regarding representation.” (RT 1:432.) The prosecutor said he had “no desire to interfere” if the defendant was pleased with his representation, but he felt an ethical duty “to make sure the proceedings go the wayit should and Mr. Woodruffis protected.” (RT 1:432-433.) The prosecutor said that being on the verge oftrial, with a mental health expert’s report yet to be completed,“I think adds error to this that's almost unfixable without a significant continuance.” (RT 1:433.) The prosecutor asked the trial court to get “a knowing and informed waiver” from the defendant. (Ibid.) Judge Thierbach, addressing Blankenship,said hefelt it necessary “to attempt to ensure Mr. Woodruffis afforded the protections to which he is entitled,”or “at least make an effort to have him understandthat there are certain things that could have been done onhis behalf that haven't been becauseof tactical decisions” by defense counsel. (RT 1:439-440.) The things the judge said Blankenship had not donethat should have been done included: ° A motion attacking the makeup ofthe grand jury that issued the indictment; e A motion challenging the sufficiency of the testimony that waspresented before the grand jury; People v. Woodruff, §115378 Appellant’s Opening Brief39 P Pp ° A motion challenging the sufficiency of the evidence forat least one of the special circumstances; and e A motion for change of venue. The judge addedthat until recently, no request had been madefor fundsto retain experts, and there was no indication that any experts were even considered. (RT 1:440.) Nonetheless,the trial judge said his interpretation of state case law led him to concludethat “I cannot remove counselof a defendant's choice. And that's fine. And I don't intend to do so.” (RT 1:441.) Discussion a. Failure to intervene Thetrial judge was wrong abouthis assertion that he lacked authority to do anything about Mr. Woodruff’s representation by incompetent counsel. The United States Supreme Court made clear more than 40 years agothattrial courts do have the authority to protect defendants’ Sixth Amendmentright to effective assistance. “[I]f the right to counsel guaranteed by the Constitution is to serve its purpose, defendants cannotbeleft to the mercies of incompetent counsel, and ... judges should strive to maintain proper standards of performance by attorneys who are representing defendants in criminal cases in their courts.” (McMannv. Richardson (1970) 397 U.S. 759, 771 [90 S.Ct. 1441].) People v. Woodruff, S115378 40 Appellant’s Opening Brief Morerecently, the Supreme Court has said the Constitution permits States to insist upon representation by counsel for those mentally competent enoughto standtrial but who are not mentally competent to conducttrial proceedings by themselves. (Indiana v. Edwards (2008) 554 U.S. 164, 178 [128 S.Ct. 2379, 171 L.Ed.2d 345].) To rule otherwise, the Court said, would undercut “the mostbasic of the Constitution's criminal law objectives, providinga fair trial. As Justice Brennanputit, ‘[t]he Constitution would protect noneofus if it prevented the courts from acting to preserve the very processesthat the Constitution itself prescribes.’” (/d., at pp. 176-177, quoting Illinois v. Allen (1970) 397 U.S. 337, 350 [90 S.Ct. 1057], Brennan, J., concurring.) “[T]he Governmenthas a concomitant, constitutionally essential interest in assuring that the defendant's trial is a fair one.” (Sell v. United States (2003) 539 U.S. 166, 180 [123 S.Ct. 2174, 156 L.Ed.2d 197].) Criminal proceedings must not only be fair, they must “appear fair to all who observe them.” (Wheat v. United States (1988) 486 U.S. 153, 160 [108 S.Ct. 1692, 100 L.Ed.2d 140].) And, because of the “qualitative difference” between a death sentence and prison term,“there is a corresponding difference in the needfor reliability in the determination that death is the appropriate punishment.” (Woodson v. North Carolina (1976) 428 U.S. 280, 305 [96 S.Ct. 2978].) With incompetent counsel representing him, Mr. Woodruff had a trial that both appeared to be unfair and was unfair, a trial that lacked the People v. Woodruff, 8115378 41 Appellant’s Opening Brief reliability required in death-penalty cases. The prosecutor recognized the unfairness and broughtit to the attention of the trial judge. Thetrial judge also recognized the unfairness but washed his handsofthe issue. Thetrial judge said he did not have the power to remove defense counsel for incompetence, even though he had “very, very serious concerns.” (RT A:60, 63.) The judgerelied on Smith v. Superior Court, supra, 68 Cal.2d 547, in which this Court said “the defendant's right to counsel requires that his advocate, whether retained or appointed, be free in all cases of the threat that he may be summarily relieved as ‘incompetent’ by the very trial judge he is duty-bound to attempt to convince of the rightness of his client's cause.” (Smith, at p. 562.) Not only did Smith prohibit trial judges from removing“incompetent” defense counsel, this Court said broadly that “we cannot exclude an attorney from participating in a particular case.” (Smith, at p. 560, fn. 5.) However, 14 years after Smith, this Court suggested the holding of Smith may have beenlimited to the peculiar facts of that case, which involved “an unreasonable sua sponte conclusionbythetrial court that counsel was incompetent; there we saw no need for removal. Though we stressed defendant's repeated objections to recusal, the issue of waiver of effective assistance never arose.” (Maxwell v. Superior Court (1982) 30 Cal.3d 606, 620, fn. 12 [180 Cal.Rptr. 177, 639 P.2d 248].) People v. Woodruff, S115378 Appellant’s Opening Brief42 g In Maxwell, this Court said when “an adequate waiver of defendant's effective-assistance rights cannot be obtained on the record, the court must presumethat he has not knowingly andintelligently chosen to proceed with retained counsel. [Citation omitted.] The court may then protect the record and defendant's right to effective assistance by requiring counsel's withdrawal.” (Maxwell, at p. 620.) In Mr. Woodruff’s case,the trial judge, fully aware that defense counsel was “in over your head”in trying a death-penalty case, nonetheless neglected his obligation to protect the defendant’s rights to a fairtrial, effective assistance of counsel, fair and reliable guilt and penalty determinations, and due processof law. b. Assistance ofco-counsel Anindigent criminal defendanthasa statutory right to a second attorney in a capital case in the discretion of thetrial court under Penal Codesection 987, subdivision (d). (People v. Doolin (2009) 45 Cal.4™ 390, 431 [87 Cal.Rptr.3d 209, 198 P.3d 11].) “In ruling on an application for second counsel, the trial court must be guided by the need to provide a capital defendant with a full and complete defense.” (/d., citing Keenan v. Superior Court, supra, 31 Cal.3d at p. 431.) The appointment of second counselin capital cases is not “limited to somerather narrowly defined situations,”as thetrial judge in this case suggested to defense counselat the pretrial hearing. (RT A:7.) To the People v. Woodruff, $115378 Appellant’s Opening Brief43 contrary, in Keenan v. Superior Court, this Court envisioned a broad right to such assistance. Noting that it can be an abuseofdiscretion fora trial court to deny a request for second counsel, this Court said, “If it appears that a second attorney may lend importantassistance in preparingfortrial or presenting the case, the [trial] court should rule favorably on the request. Indeed, in general, under a showing of genuine need, ... a presumption arises that a second attorney is required.” (Keenan, 31 Cal.3d at p. 434.) In Keenan, this Court said a trial court abusedits discretion in not appointing co-counsel becauseof “the complexity of the issues, the other criminalacts alleged, the large numberof witnesses, the complicated scientific and psychiatric testimony, and the extensive pretrial motions,as to some of which review would be soughtin the event of adverse rulings.” (Id.) In this case, it would have been an abuseof discretion not to appoint second counsel for Mr. Woodruff because of the inexperience of defense counsel, who wastotally unfamiliar with capital trial procedure; and the complexity of the issues, which included scientific testimony to mental retardation and brain injury, as well as other criminal acts alleged as aggravating factors at the penalty phase. An experienced death-penaltytrial lawyer would have foundthe assistance of second counsel to be valuable. For an inexperienced practitioner, such assistance was necessary. People v. Woodruff, $115378 Appellant’s Opening Brief44 PP Forthe trial judge to discourage defense counsel from even asking for assistance, based on a skewedinterpretation of the law, was an abuse of discretion. In failing to make the request anyway, defense counsel provided prejudicially ineffective assistance. (Strickland v. Washington (1984) 466 U.S. 668 [104 S.Ct. 2052]; People v. Lewis (1990) 50 Cal.3d 262, 288 [266 Cal.Rptr. 834, 786 P.2d 892].) C. Inadequate inquiry Thetrial judge concluded that Mr. Woodruff had madea “sound and informed decision” to continue with Blankenship’s representation based on Mr. Woodruff’s utterance of the single-word answer“Yes,” to the question whether he was “comfortable with the way yourcase is being handled.” (RT 1:451.) The judge had made no attempt to determine whether Mr. Woodruff’s “Yes” contained any real understanding ofhis actual predicament. The courts “indulge every reasonable presumption against the waiver of fundamentalrights.” (Glasser v. United States (1942) 315 U.S. 60, 70 [62 S.Ct. 457, 86 L. Ed. 680].) Before a defendant waives a fundamentalright, such as the right to the effective assistance of counsel, the trial court must determinethat the defendant has “competently and intelligently waived his constitutionalright, [or] the Sixth Amendment stands as a jurisdictional bar to a valid conviction and sentence depriving him ofhis life or his liberty.” (Johnson v. Zerbst (1938) 304 U.S. 458, 468 People v. Woodruff, 8115378 Appellant’s Opening Briefg [58 S.Ct. 1019; 82 L. Ed. 1461].) The right to counselis “a prime example of those rights requiring the special protection of the knowing and intelligent waiver standard.” (Edwardsv. Arizona (1981) 451 U.S. 477, 483 [101 S.Ct. 1880, 68 L.Ed.2d 378].) For a court to allow a defendant to waive the rightto effective assistance of counsel without a showing that the waiver was knowing and intelligent would be tantamountto allowing a defendant whois not competent to put on his own defenseto assert the right to self- representation, which the Supreme Court said “undercuts the most basic of the Constitution's criminal law objectives, providinga fair trial.” (Indiana v. Edwards, supra, 554 U.S. at pp. 176-177.) Such a proceeding would not meet the requirementof heightenedreliability of guilt and penalty determinations in a death-penalty case. (Woodson v. North Carolina, supra, 428 U.S. at p. 305.) In another context, this Court has held that beforea trial court accepts a defendant’s waiverof a constitutional right, the trial court “must assure itself that (1) the defendant has discussed the potential drawbacks... with his attorney, or if he wishes, outside counsel, (2) that he has been made aware of the dangers and possible consequences... in his case, (3) that he knowsofhis right ... and (4) that he voluntarily wishes to waive that right.” (People v. Bonin (1989) 47 Cal.3d 808, 837 [254 Cal.Rptr. 298, 765 P.2d 460], citing People v. Mroczko (1983) 35 Cal.3d 86, 110 [197 People v. Woodruff, 8115378 46 Appellant’s Opening Brief Cal.Rptr. 52, 672 P.2d 835]; Glasser v. United States, supra, 315 U.S. atp. 71.) In this case, the trial judge made no such inquiry. Thetrial judge made no attempt to determine Mr. Woodruff’s mentalability to knowingly andintelligently waivehis rights, nor did he appoint independent counselto represent those rights while defense counsel vigorously defended his own competence to try a death-penalty case. Only attrial wasit revealed that Mr. Woodruff’s intelligence was in the range from mildly mentally retarded, according to a defense expert (RT 22:4532, 4543), to borderline but learning disabled, accordingto a prosecution expert. (RT 22:4532, 23:4902.) In either assessment, Mr. Woodruff did not understand the concepts of “waiver,” “conflict,” and “effective assistance.” He did not knowingly andintelligently waive his rights because he did not understand what such an action meant. In all of the respects mentioned in this claim, the combination of (a) the trial judge’s failure to intervene to protect Mr. Woodruff’s rights, (b) the trial judge’s misleading description of the threshold for obtaining co- counsel, and (c) the trial judge’s inadequate inquiry into Mr. Woodruff’ s understanding of his rights denied Mr. Woodruff his state and federal constitutional rights to a fair trial, effective assistance of counsel, the heightenedreliability of guilt and penalty determinations required in death- penalty cases, and due process of law underthe Sixth, Eighth and People v. Woodruff, S115378 Appellant’s Opening Brief47 pening Fourteenth Amendmentsto the United States Constitution and ArticleI, sections 7, 15, 17 and 29 of the California Constitution. Consequently, Mr. Woodruff’s convictions and sentences should be overturned. He should be granted a new trial with competent counsel. People v. Woodruff, S115378 48 Appellant’s Opening Brief CLAIM A2:Trial judgefailed to inquire into defendant’s competence to standtrial. Despite substantial evidence of the defendant’s incompetenceto stand trial, the trial judge failed to declare a doubt about Mr. Woodruff’s competence tostandtrial and failed to conduct a competency hearing, which violated Mr. Woodruff’s constitutional rights to a fairtrial, reliable determinations of guilt and sentencing in a death-penalty case, and due processof law. Facts Thetrial judge’s suspicions about Mr. Woodruff’s mental competencyto standtrial should have been aroused as early as the second court hearing, on March 8, 2001, when defense counsel Mark Blankenship said the defendant wantedthe court to entertain a request for bail, even though counsel acknowledgedthat“this is a no-bail case.” (RT A:6.) Six months later, Mr. Woodruff’s mental limitations becameclearer. Duringthe trial judge’s lengthy explanation of case law, the judge urged the defendantto listen to what he was saying. The defendantreplied, “T don't understand nothin’ you sayin’, Judge. ... I'm not a lawyer, you know. I'm listening. I just don't understand.” (RT A:57.) At the same hearing,the trial judge asked the defendantif he wanted to continue with defense counsel, despite the judge’s doubts about counsel’s ability to try a death-penalty case. The defendant’s reply People v. Woodruff, §115378 Appellant’s Opening Brief49 P P indicated a belief that his volunteer attorney was a gift from God: “Yes. Pll assure you, Judge, that, you know,there is a higher up that sent Mr. Blankenship to me, and he mustbe the one to represent me, you know, because there’s someone over you and that you work for. So, I really don’t understand whatis really going on here, anyway, you know.” (RT A:61- 62.) The prosecutor noted, “Mr. Woodruff repeatedly said he doesn’t understand what’s going on here, which is going to read poorly in the record.” (RT A:64.) Attrial, in cross-examination of the defendant on January 16, 2003, the prosecutor asked, “have you understood what's going on todayin this courtroom?” Mr. Woodruff replied: “Somewhat.” (RT 20:4221.) Mr. Woodruff said he could read and write “A little bit.” (RT 20:4225.) Mr. Woodruff said he wentto the law library once while he wasin jail, but “you don't understand whatI was readin’. That's why I stopped. ... I ain't go but one time.” (RT 20:4226.) Defense expert witness Curtis Booraem,a clinical psychologist, testified at the guilt phase on January 22, 2003,that his testing indicated Mr. Woodruff had a full-scale IQ of 66, meaning mildly mentally retarded, and a “verbal comprehension index” of 61, meaning Mr. Woodruff had great difficulty in verbal comprehension. (RT 22:4543-4544, 4605.) People v. Woodruff, S$115378 50 Appellant’s Opening Brief Discussion “It has longbeen accepted that a person whose mental condition is suchthat he lacks the capacity to understand the nature and object ofthe proceedings against him, to consult with counsel, andto assist in preparing his defense may notbe subjectedto trial.” (Drope v. Missouri (1975) 420 U.S. 162, 171 [95 S.Ct. 896].) “[T]he failure to observe procedures adequate to protect a defendant's right not to be tried or convicted while incompetentto standtrial deprives him of his due processrightto a fair trial.” (/d., at p. 172, citing Pate v. Robinson (1966) 383 U.S. 375 [86 S.Ct. 836, 15 L.Ed.2d 815].) California Penal Code section 1367, subsection (a), says, “A person cannotbetried or adjudged to punishmentwhile that person is ... unable to understandthe nature of the criminal proceedings or to assist counsel in the conductof a defense in a rational manner.” If a trial judge has a doubt about the mental competence of the defendant, Penal Code section 1368, subsection (a), requires the judge to “state that doubt in the record and inquire of the attorney for the defendant whether, in the opinion of the attorney, the defendant is mentally competent.” This Court has held, “Failure to declare a doubt and to conduct a competency hearing whenthereis substantial evidence of incompetence requires reversal of the judgment.” (People v. Blair (2005) 36 Cal.4" 686, 711 [31 Cal.Rptr.3d 485, 115 P.3d 1145].) To be found competentto stand People v. Woodruff, S115378 51 Appellant’s Opening Brief trial, the defendant must have “a sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding — and ... a rational as well as a factual understanding of the proceedings against him.” (Id., quoting Dusky v. United States (1960) 362 U.S. 402 [80 S.Ct. 788, 4 L.Ed.2d 824].) Before and during his trial, Mr. Woodruff repeatedly said he did not understand the proceedings. He demonstrated his lack of understanding by his words and actions during trial. Mr. Woodruff’s lack of verbal comprehension meantthat he couldsit in the trial and hear the words spoken, but they had no meaning to him. Ashesaid in a pretrial hearing when the judge asked him to payattention, “I'm listening. I just don't understand.” (RT A:57.) Because of his lack of understanding, Mr. Woodruff neededhelp to avoid a travesty of justice. Defense counsel andthetrial judge failed to provide that help, as required by statute and constitutional principles. As a consequence, Mr. Woodruff wasdeniedhis rights to a fairtrial, reliable determinations of guilt and sentencing in a death-penalty case, and due process of law under the Sixth, Eighth and Fourteenth Amendmentsto the United States Constitution, and Article 1, sections 7, 15, 17 and 29 ofthe California Constitution. Mr. Woodruff’s convictions should be overturned. The case should be remandedto thetrial court for a competency determination. People v. Woodruff, S115378 52 Appellant’s Opening Brief CLAIM A3:Trial judge solicited three pretrial waivers of right to unconflicted counsel without showing defendant made knowing,intelligent and voluntary choice; defense counsel violated duty of loyalty. Thetrial judge elicited from Mr. Woodruff three waivers of the right to unconflicted counsel regarding defense counsel Mark Blankenship’s prior representation of two prosecution witnesses without establishing that Mr. Woodruff understood what rights he was giving up or why. In none of the three instances did thetrial judge inquire about Mr. Woodruff’s understanding of the concepts of “waiver” or “detrimental” or “conflict of interest.” In noneof the instancesdidthe trial judge explain the full consequencesof giving up the rights, or the full consequences of proceeding with conflicted counsel. In none of the instances was Mr. Woodruff offered independent advice, and in none of the instances was Mr. Woodruff asked if he had discussed the conflicts with his attorney. In eliciting the waivers, the trial judge denied Mr. Woodruff his state and federal constitutional rights to counsel,a fairtrial, reliable determinations of guilt and sentence, and due processof law. By representing multiple conflicting interests simultaneously, defense counsel Mark Blankenship violated his duty of loyalty to Mr. Woodruff, which also denied Mr. Woodruffhis state and federal constitutionalrights to counsel, a fair trial, reliable determinations of guilt and sentence, and due processof law. People v. Woodruff, 8115378 Appellant’s Opening Brief53 pening Preliminary facts At a hearing March 22, 2001, to set a trial date for Mr. Woodruff, Blankenship purported to represent not only Mr. Woodruff, but also his mother, Parthenia Carr, and brother Claude Carr. Blankenship asked the trial judge whether a motion to consolidate Mr. Woodruff’s trial with those of his mother and his brother would be viable, as they “were my primary witnesses in that matter and the chargesarise out of the same transactions,” the attempted arrests of Parthenia Carr and Claude Carr andthe resulting shooting of one of the arresting officers. (RT A:9.) Thetrial judge said he did not think Blankenship had standing to make such a motion: “I would assumethey are represented by counsel.” (Ibid.) Blankenship said he represented Mr. Woodruff’s mother and would have to get conflict waivers to consolidate the trials. (RT A:9-10.) The judgenoted, “There’s obviously a conflict.” The judge said Blankenship could make the motion, but he would be inclined to deny it. (RT A:10.) No such motion was made. Facts of first waiver Mr. Woodruff’s trial counsel represented Mr. Woodruff’s motherat hertrial in September 2001 on misdemeanorchargesof disturbing the peaceandresisting arrest from the sameincidentthat resulted in the murder charge against Mr. Woodruff. Mrs. Carr was convicted of both misdemeanorcharges. (RT A:38; RT 10:2251-2252, 2286; RT 11:2411; RT People v. Woodruff, S115378 Appellant’s Opening Brief4 P 12:2833-2834.) Mrs. Carr testified at Mr. Woodruff’s trial that she wentto jail on October 29, 2001, and got out on July 24, 2002. (RT 11:2432.) Ata pretrial hearing on May7, 2002,the trial judge in this case asked Mr. Woodruff about what the judge called “‘a housekeeping issue” — “whether you are willing to waive any potential conflict of interest that may exist based upon Mr. Blankenship's representations of your mother.” The judge asked if Mr. Woodruff understood. Mr. Woodruff shook his head no. The judge then asked if Mr. Woodruff understood that his mother had been charged with disturbing the peace andresisting arrest. Yes. If he understood that she wentto trial. Yes. (RT B:483.) If he understood that Blankenship represented his motherat trial, and some evidence may have been produced that conflicted with Mr. Woodruff’s interests. (RT B:483- 484.) Yes. The judge’s inquiry continued: COURT: [I]f you want Mr. Blankenship to continue representing you, you have to waive,or agree that even if there was a conflict of interest in his representation of your mother, you're willing to waive, or give up, any right to contest that conflict. Do you understand that? WOODRUFF: Yes. COURT: Okay. And are you willing to waive, or give up, any right to argue any conflict of interest — WOODRUFF: Yes,sir. COURT: — that mayexist? WOODRUFF: I'm satisfied with Blankenship. COURT: All right. The Court accepts that as a waiver of conflict of interest. (RT B:484.) People v. Woodruff, S115378 55 Appellant’s Opening Brief Facts of second conflict waiver Immediately after the trial judge’s ruling that Mr. Woodruff had waived the conflict from Blankenship’s representation of Mr. Woodruff’s mother, the prosecutor asked for a waiver from Blankenship’s prior representation of prospective penalty-phase witness Dennis Smith. (RT B:484-485.) Blankenship told the court he understood the subject matter of Smith’s proposed testimony had nothing to do with Blankenship’s former representation of Smith. Blankenship said he had represented Smith at two trials and had been relieved in February 2002. (RT B:485-486.) Thetrial judge then inquired of Mr. Woodruff: COURT: WOODRUFF: COURT: WOODRUFF: COURT: WOODRUFF: COURT: (RT B:486.) People v. Woodruff, S115378 Mr. Woodruff, Mr. Soccio indicates if we get to a penalty phase, he intends to call Mr. Smith to testify. Now, I don't know what Mr. Smith is going to testify to, but it has been represented that there maybe a conflict of interest based upon the factthat Mr. Blankenship once represented Mr. Smith. There may have been someissuesthat arose that may conflict with your best interest, and so all I need to simply ask you again as with respect to your mother: Do you waive, or give up, any right to contest an issue related to a conflict ofinterest based upon Mr. Blankenship's prior representation of Mr. Smith? I am satisfied. J will take that as a "yes." Yes. You waive any conflict of interest? Yes. The Court will accept that waiver. 56 Appellant’s Opening Brief Facts of third conflict waiver Ata pretrial hearing on October 11, 2002, prospective prosecution penalty-phase witness Dennis Smith, who wasin custody, appeared with his attorney, Pierpont Laidley, and declined to waive attorney/client privilege regarding Blankenship’s representation of Smith in two prior criminal cases. (RT B:583-584.) Thetrial judge then turned to Mr. Woodruff and explainedthatif Smith were to testify against him at the guilt phase or penalty phase, Mr. Woodruff’s attorney would be obligated to try to discredit Smith. COURT: WOODRUFF: COURT: WOODRUFF: COURT: (RT B:584-585.) ... But because he has represented Mr. Smith and Mr. Smith does not wish to waivehis attorney/client privilege, Mr. Blankenship would not be able to make those inquiries on your behalf, and that would be — could be detrimental to you, detrimental to your defense. Do you understand that? Yes. Knowingthat, knowingthat potentially a prosecution witness could not be discredited by yourattorney becauseof this thing wecall the “attorney/client privilege,”is it still your desire to have Mr. Blankenship continue to represent you in this case? Yes. All right. I think this is the third time I've taken a waiver from him,andI'm satisfied that he understands whathe has done. Representation of daughter At a pretrial hearing on December 2, 2002, Mr. Woodruff’s daughter Brianna, then 6 years old, was questionedbythetrial judge and both People v. Woodruff, 8115378 57 Appellant’s Opening Brief attorneys to determine her competencytotestify at trial. Before Brianna was brought into the courtroom, Blankenship objected to her appearance in court: I feel compelled to intervene on behalf of Brianna because there's no one, other than her and her mother ... I am concerned we're not watching out for the child's interest atall. ... [think that there could be longstanding and irreparable consequencesbased onthe child, based on what's happening today, on the eveof trial, having her comein, being placed on the witness stand, and talk about a very tragic event that occurred when she wasfour. (RT 4:1230-1231.) The prosecutor suggested an alternative to Brianna’s testimony in open court — that Blankenship stipulate to the admission of the tape and transcript of Brianna’s interview with a police investigator on the night of the shooting, and then she would not haveto testify at all. (RT 4:1232.) Blankenship appeared amenable to such a solution, as long as someonecould lay the foundation for the tape recording, although it was “not clear to me what my answeristo that at this point.” bid.) The judge interrupted Blankenship: Let metell you what your response is and maybe we cannot discuss this to any great length. There's no way in the world you're gonnastipulate to that. Because if you do, you're not gonna have a chanceto cross-examine her. ... I don't know what she is gonnasay, but I guarantee if you enter into a stipulation like that, which I'm not gonnaacceptif you do — that will be Issue No. 1 before the Supreme Court, if it ever gets that far — (RT 4:1232-1233.) People v. Woodruff, 8115378 58 Appellant’s Opening Brief After hearing Brianna answerquestions, the judge determined she was competentto testify because she knew the difference betweentelling the truth andtelling a lie. (RT 4:1247.) However, neither party called Briannato testify at trial. Discussion Before a criminal defendant can waive a fundamental constitutional right, that waiver must be voluntary, knowing andintelligent (Mirandav. Arizona (1966) 384 U.S. 436, 444 [86 S.Ct. 1602]), and “must be unambiguousand ‘without strings.’” (People v. Mroczko, supra, 35 Cal.3d at p. 110, citing United States v. Dolan (3d Cir. 1978) 570 F.2d 1177, 1181, fn. 7; United States v. Bernstein (2d Cir. 1976) 533 F.2d 775, 788,cert. den. (1976) 429 U.S. 998 [50 L.Ed.2d 608, 97 S.Ct. 523].) Oneof those fundamental constitutional rights is the Sixth Amendmentright to counsel. (Gideon v. Wainwright (1963) 372 U.S. 335, 342 [83 S.Ct. 792].) Where such a right to counsel exists, “there is a correlative right to representation that is free from conflicts of interest.” (Wood v. Georgia (1981) 450 U.S. 261, 271 [101 S.Ct. 1097], citing, e.g., Cuyler v. Sullivan (1980) 446 U.S. 335 [100 S.Ct. 1708; 64 L.Ed. 2d 333]; Hollowayv. Arkansas (1978) 435 U.S. 475, 481 [98 S.Ct. 1173].) In Cuyler v. Sullivan, the Supreme Court said a defendant could demonstrate a Sixth Amendmentviolation by showingthat (1) counsel “struggle[d] to serve two masters” and (2) the actual conflict adversely People v. Woodruff, 8115378 Appellant’s Opening Brief9 affected counsel’s performance. (Cuyler v. Sullivan, 446 U.S. at pp. 349, 350.) Where a conflict of interest causes an attorney not to do something, this Court “examine[s] the record to determine (i) whether arguments or actions omitted would likely have been made by counsel whodid not have a conflict of interest, and (ii) whether there may have beena tactical reason (other than the asserted conflict of interest) that might have caused any such omission.” (People v. Doolin, supra, 45 Cal.4"at p. 418, quoting People v. Cox (2003) 30 Cal.4" 916, 948-949 [135 Cal.Rptr.2d 272, 70 P.3d 277].) This Court has held that before a trial court accepts a waiver of a conflict of interest offered by a defendant, the trial court “must assure itself that (1) the defendant has discussed the potential drawbacksof [potentially conflicted] representation with his attorney, or if he wishes, outside counsel, (2) that he has been made awareof the dangers and possible consequencesof [such] representation in his case, (3) that he knowsofhis right to conflict-free representation, and (4) that he voluntarily wishesto waivethatright.” (People v. Bonin, supra, 47 Cal.3d at p. 837.) To obtain relief, a defendant must showthat histrial attorney labored under“an actual conflict of interest,” meaning “a conflict that affected counsel's performance — as opposed to a mere theoretical division of loyalties.” (Mickens v. Taylor (2002) 535 U.S. 162, 171 [122 S.Ct. 1237].) “A defendant who showsthat a conflict of interest actually affected People v. Woodruff, 8115378 60 Appellant’s Opening Brief the adequacyofhis representation need not demonstrate prejudice in order to obtain relief.” (Cuyler v. Sullivan, supra, 446 U.S. at pp. 349-350.) In this case, Mr. Woodruff’s trial counsel labored under actual conflicts of interest that adversely affected his representation of Mr. Woodruff, conflicts that suggested he wastone deaf to the very concept of conflict of interest. When he volunteered to represent Mr. Woodruffat his capital murdertrial, Blankenship was on probation with the State Bar of California following a suspension from practice for incompetence. (RT A:65, RT 14:3264; CT 2:355-356.) After volunteering to represent Mr. Woodruff, Blankenship also volunteered to represent Mr. Woodruff’ s mother on her misdemeanorchargesarising out of the sameincident. Blankenship implicitly offered also to represent another son, Claude Carr,if he faced charges. (RT A:9-10.) Later, Blankenship purported to represent Mr. Woodruff’s daughter, regardless of the effect of that representation on Mr. Woodruff’s interests. (RT 4:1230-1232.) Regarding Dennis Smith, Blankenship’s conflict of interestill- served both clients. In a pretrial hearing for Mr. Woodruff, Blankenship told the trial court that he began representing Smith in March or April of 2001 (RT B:579), which was monthsafter he had begun representing Mr. Woodruff in this case.’ Smith, aware that the prosecution wastrying to get '' Blankenship’s first court appearance on Mr. Woodruff’s behalf wasat arraignment on January 24, 2001. (CT 1:10.) People v. Woodruff, 8115378 61 Appellant’s Opening Brief him to testify against Mr. Woodruff at the penalty phase of the murdertrial, had alerted the court at the start of each ofhis trials to his attorney’s conflict of interest. (RT B:580.) After Smith was convicted, his successor counsel Pierpont Laidley filed motions for newtrials, citing Holloway v. Arkansas, supra, and alleging that Smith’s misdemeanor convictions for fraud and being a felon in possession of a firearm should beset aside because of Blankenship’s conflict of interest when he represented Smith. (RT B:579-581, 588.) In Mr. Woodruff’s case, Blankenship’s duty of loyalty to Smith prevented Blankenship from properly impeaching Smith with what he had learned in confidence about Smith’s prior criminal record. Smith declined to waive his attorney/client privilege regarding that representation when the trial judge asked Smith if he would waive the privilege in Mr. Woodruff’s case. (RT B:584.) Even if Blankenship had wanted to impeach Smith with what Blankenship had learned about him during their attorney/client relationship, the trial judge in Mr. Woodruff’s trial would not allow Blankenship to do so. Once Smith had declined to waivethe privilege, the trial judge advised Mr. Woodruff that Blankenship “would be unable to make inquiry of Mr. Smith regarding specific criminal conduct. Even if it may have occurred, even if he knew it occurred, he couldn't do that.” (RT B:586.) People v. Woodruff, S115378 62 Appellant’s Opening Brief Blankenship’s actions regarding his conflicting relationships indicated that his real interest was for neither Smith nor Woodruff, but for himself. “Mr. Blankenship is nottelling the truth” about his representation of Smith, attorney Laidley told the trial court in Mr. Woodruff’s case after Smith had declined to waive his attorney/client privilege and after Mr. Woodruff had waived his counsel’s conflict of interest. “I don't think he's fully described all that happened. For example, whether how much he knew aboutthe conflict in this case, the potential for conflict, and whether he properly advised Judge Magers in going ahead with thosetrials.” (RT B:588.) Laidleytold the trial judge in Mr. Woodruff’s case that although Laidley did not knowif he had standingto raise his concerns, he understood that one of the issues at trial would be whether Mr. Woodruff wassufficiently mentally competentto face the death penalty. “Well, ina sense, to allow him, without having that issue fully cleared, to waive conflict, which is a very complex concept, seems to me in andofitself is a conflict. It immediately vitiates that defense.” (RT B:590.) The judge andprosecutor both told Laidley they “‘appreciate[d]” his concerns, but Laidley’s concerns about Mr. Woodruff’s waiver were not addressed on the record. Blankenship offered no response regarding Laidley’s concerns aboutthe possible implications of the waiver for Mr. Woodruff. Instead, what Blankenship felt ought to be defended washis People v. Woodruff, 8115378 Appellant’s Opening Brief63 record for truthfulness against what he characterized as Laidley’s “deflammatory [sic] commentary.” With that, discussion of the waiver ended. (Ibid.) That Blankenship’s conflicts of interest adversely affected his performanceattrial, as required by Mickens and Cuyler,is clear from the record. In eliciting the waivers anyway,thetrial judge failed to perform his duties to protect the defendant’s Sixth Amendmentrights. Under Bonin, the trial court was supposed to makea four-part inquiry before granting a waiverto establish: (1) whether Mr. Woodruff had discussed the potential drawbacksof the conflicted representation with Blankenship, or outside counsel; (2) whether Mr. Woodruff had been “made aware of the dangers and possible consequences”of conflicted representation; (3) whether Mr. Woodruff knew ofhis right to conflict-free representation; and (4) whether Mr. Woodruff wished voluntarily to waive that right. (People v. Bonin, supra, 47 Cal.3d at p. 837.) Thetrial judge madeno such four-part inquiry before granting any of the three waivers of conflict of interest. In none of his inquiries did the trial judge ask Mr. Woodruff if he had discussed the potential drawbacks of conflicted representation with Blankenship, nor did the judge offer Mr. Woodruff a chanceto discuss the conflict of interest issue with outside counsel. The judge did not explain “the dangers and possible consequences”of conflicted representation, as required in the secondpart People v. Woodruff, S115378 64 Appellant’s Opening Brief of the Bonin inquiry before obtaining waivers of conflicts involving Blankenship’s representation of Mr. Woodruff’s mother and cousin on May 7, 2002. Thetrial judge did makea basic inquiry before securing an additional waiverof the conflict involving Smith at a hearing on October 11, 2002, but did so in language Mr. Woodruff could not understand. To the two questions ~ “Do you understand that?” and “... is it still your desire to have Mr. Blankenship continue to represent youin this case?” — Mr. Woodruff simply answered “yes.” (RT B:585, 587.) Thetrial judge did not inquire further. Thetrial judge failed to inquire whether Mr. Woodruff’s three waivers of his Sixth Amendmentright to conflict-free representation were voluntary, knowing andintelligent, as required by this Court, as well as United States Supreme Court precedents. The evidence in the record ~ including Mr. Woodruff’s low IQ scores, low reading level and repeated statementsto thetrial court that he did not understand whatthe judge was telling him — suggests that a proper inquiry would have found that the waivers were not voluntary, were not knowing andcertainly were not intelligent. Therefore, the waivers were notvalid. That Blankenship’s conflicts of interest adversely affected his performanceattrial, as required by Mickens and Cuyler, is clear from the record. Asthetrial judge pointed out in seeking a waiverof rights from Mr. Woodruff regarding the Smith conflict, Blankenship could not (and did People v. Woodruff, 8115378 Appellant’s Opening Briefpening not) impeach Smith in the penalty phase of Mr. Woodruff’s trial with what Blankenship had learned from representing Smith. And, as Laidley pointed out, by placing his client in a position in which Mr. Woodruff had to make a decision about the “very complex concept” of waiving a conflict of interest, Blankenship vitiated the defense of mental retardation. Becausethe conflicts adversely affected Blankenship’s representation of Mr. Woodruff at all phases oftrial, Blankenship’s conflicts of interest violated Mr. Woodruff’s rightsto a fair trial, assistance of counsel, the heightenedreliability required in guilt and penalty proceedings in death-penalty cases, and due process of law, under the Sixth, Eighth and Fourteenth Amendments to the United States Constitution and Article 1, sections 7, 15, 24 and 29 of the California Constitution. Mr. Woodruff’s convictions must be overturned. People v. Woodruff, S115378 66 Appellant’s Opening Brief CLAIM A4:Actionsof trial judge, defense counsel and prosecutor denied Mr. Woodruff an impartial jury. Mr. Woodruff was denied an impartial jury by (a) thetrial judge’s improper exclusion for cause of two qualified jurors based on their questionnaire answers; (b) defense counsel’s incompetence andthetrial judge’s abuseof discretion in allowing a biased juror to be seated; and(c) the prosecutor’s purposeful use of peremptory challenges to exclude black jurors. These actions violated Mr. Woodruff’s state and federal constitutionalrights to a fair trial, the heightenedreliability required in death-penalty cases, due process of law, and equal protection of the laws. a. Improperexclusion of qualifiedjurors Facts At pretrial hearing on November 14, 2002, Judge Christian Thierbach soughtstipulations from counsel to remove prospective jurors for cause based onthe jurors’ answers on a 20-page juror questionnaire. (RT 3:802.) The parties stipulated to remove 14 jurors, andthetrial judge removed 22 others for cause. (CT 17:4972; RT 3:855.) Prosecutor Michael Soccio challenged five black jurors for cause — T.B., C.D., E.J., D.K. and L.T. Defense counsel Mark Blankenship would not stipulate to dismissing any of the black jurors. (RT 3:811, 817, 828, 829, 849; CT 17:4972, 4974.) People v. Woodruff, S115378 Appellant’s Opening Brief7 g Thetrial judge granted the challenge for cause to juror E.J. (RT 3:828), who had answered “no” on the questionnaire to a question about whether he would follow an instruction on the law if it conflicted with his beliefs or opinions. (CT 15:4442,) Thetrial judge denied the challenges for cause to the other four black jurors, expressing concern about the small numberof blacks in the jury pool, which the judge said was 10 percent”, about the size of the black population in Riverside County. (RT 3:817.) Juror D.K.had said on the questionnaire that he did not believe in the death penalty, but he indicated it would notbe difficult to vote for the death penalty and he said he would follow the law. (CT 10:2926-2927.) After Soccio challenged D.K.for cause, the trial judge asked what harm would it do to bring him in and question him further. The prosecutor replied: “I would suspect the reasonis this guy is African-American. Given that I’m already up against that race battle and we haven’t evensetthetrial, if I’m forced to take jurors simply becauseof their race.” (RT 3:830.) After the hearing, Soccio filed a “Motion to Reconsider Removal of Prospective Jurors for Cause,” which asked thetrial judge to remove two white jurors who had expressed opposition to the death penalty, as well as all four black jurors who had survivedhis initial challenges for cause. (CT 17:4971-4977.) “The Court, by attempting to retain African Americansin '? Thirteen of the 159 jurors in the venire identified themselves as black or African-American — 8.2 percent. People v. Woodruff, S115378 68 Appellant’s Opening Brief the jury pool, has inadvertently placed the prosecution in a disadvantaged position,” the motion argued. (CT 17:4971.) “By refusing to exclude potential African American jurors becauseoftheir racial background,the court has placed the People in an untenableposition. ... [T]he prosecutor will now have to make challengesin front of other prospective jurors risking not only Wheeler’’ motions, but also insulting or inflaming other prospective jurors or actual members whoare seated in this jury.” (CT 17:4972.) At a hearing on November 19, 2002, defense counsel Blankenship said he had concerns about the “Wheeler” implications of the motion. He said he thoughtthe prosecutor had prejudged the jurors before going throughvoir dire, and if the judge granted the motion, there would be fewer African-Americans on the jury. (RT 3:868-870.) Blankenship also pointed out that the prosecutor’s motion did notbringto the trial court’s attention that D.K., in his questionnaire, qualified his opposition to the death penalty by saying he would follow the law. (RT 4:1090.) Blankenship characterized the omission as another example of the prosecutor’s “advocacy-oriented approach to the exclusion of jurors based on race.” (RT 4:1091.) '3 People v. Wheeler (1978) 22 Cal. 3d 258 [148 Cal.Rptr. 890, 583 P.2d 748]. People v. Woodruff, 8115378 Appellant’s Opening Brief69 P Notwithstanding the defense objections to the prosecution motion, the trial judge said he had reconsideredhis rulings involving prospective jurors W.C., who was white, and D.K., who was black. (RT 3:871,) W.C. had answered “yes” to question 53(c), that it would be difficult to vote for the death penalty in this case (CT 12:3501); D.K. had answered “no”to the same question. (CT 10:2927.) Nonetheless, the trial judge said he did not see a theoretical possibility that either W.C. or D.K. could vote for the death penalty, so he excused both jurors for cause based on their answers on the questionnaire alone. (RT 3:872, 1091.) Discussion The United States Supreme Courthas held that “the State infringes a capital defendant's right under the Sixth and Fourteenth Amendmentsto trial by an impartial jury when it excuses for cause all those membersof the venire who express conscientious objections to capital punishment.” (Wainwright v. Witt (1985) 469 U.S. 412, 416 [83 L.Ed. 2d 841, 105 S.Ct. 844], citing Witherspoonv.Illinois (1968) 391 U.S. 510 [88 S.Ct. 1770].) In Witt, the Supreme Court said “the proper standard for determining when a prospective juror may be excluded for cause becauseofhis or her views on capital punishment... is whetherthe juror's views would ‘prevent or substantially impair the performanceofhis duties as a juror in accordance with his instructions and his oath.’” (Witt, supra, at p. 424, quoting Adams v. Texas (1980) 448 U.S. 38, 45 [100 S.Ct. 2521].) People v. Woodruff, S115378 70 Appellant’s Opening Brief The Supreme Court went on to say “there will be situations where the trial judgeis left with the definite impression that a prospective juror would be unable to faithfully and impartially apply the law. ... [T]his is why deference mustbe paidto the trial judge who sees and hears the juror.” (Witt, supra, at pp. 425-426 [emphasis added].) The corollary of the Witt holding is that deference need notbe paid to the trial judge whoneither saw norheard the juror. To be sure, the Witt Court literally meant “sees and hears,” whichis clear from the remainder of the opinion. In a previous case, Patton v. Yount (1984) 467 U.S. 1025 [104 S.Ct. 2885], the Supreme Court had said “the question whether a venireman is biased has traditionally been determined through voir dire culminating in a finding by thetrial judge concerning the venireman's state of mind. We also noted that such a finding is based upon determinations of demeanor and credibility that are peculiarly within trial judge's province.” (Witt, supra, at p. 428 [emphasis added].) More recently, the Supreme Court, citing Witt, said, “Deference to the trial court is appropriate because it is in a position to assess the demeanorof the venire, and of the individuals who composeit, a factor of critical importance in assessing the attitude and qualifications of potential jurors.” (Uttecht v. Brown (2007) 551 U.S. 1,9 [127 S.Ct. 2218].) “[R]ace-neutral reasons for peremptory challenges often invoke a juror's demeanor(e.g., nervousness, inattention), makingthetrial People v. Woodruff, S115378 71 Appellant’s Opening Brief court's first-hand observations of even greater importance.” (Snyderv. Louisiana (2008) 552 U.S. 472, 477 [128 S.Ct. 1203].) This Court has said that a prospective juror “may be challenged for cause based uponhis or her views regarding capital punishmentonly if those views would ‘prevent or substantially impair’ the performanceof the juror's duties as defined by the court's instructions and the juror's oath.” (People v. Cunningham (2001) 25 Cal. 4"" 926, 975 [108 Cal.Rptr.2d 291, 25 P.3d 519], quoting Witt, at p. 424 [emphasis added].) In People v. Stewart (2004) 33 Cal.4" 425 [15 Cal.Rptr.3d 656, 93 P.3d 271], this Court encountered a factually similar situation to this case in whichthetrial court erred in excluding jurors for cause, over defense objection, “based solely upon their checked responses and written answers on a jury questionnaire.” (/d., at p. 441.) Of particular concern to this Court in Stewart was question No. 35(1)(c) on the juror questionnaire, which asked whether the prospective juror’s conscientious opinionsor beliefs concerning the death penalty would “prevent or makeit very difficult” for the prospective juror “to ever vote to impose the death penalty.” (Stewart, supra, at p. 446.) Even a “yes” answerto that question, this Court concluded, would not be probative of impairmentto serve as a juror in a death-penalty case. “[A] prospective juror who simply wouldfind it ‘very difficult’ ever to impose the death penalty, is entitled — indeed, duty bound — to sit on a capital jury, unless his People v. Woodruff, $115378 Appellant’s Opening Brief7 or her personal viewsactually would prevent or substantially impair the performanceofhis or her duties as a juror.” (Ibid.) In Mr. Woodruff’s case, the standard was not even “very difficult” but merely “difficult.” Question No. 53(c) asked: “If you are against the death penalty, would your opinion makeit difficult for you to vote for the death penalty in this case, regardless of what the evidence was?” (CT 10:2927.) Nevertheless, the stricken jurors’ answers to Question 53(c) could not have made any difference, because the trial judge excluded for cause W.C., who answered “yes” (CT 12:3501), and also D.K., who answered “no.” (CT 10:2927.) If not that answer, then on whatbasis did thetrial judge remove jurors W.C.and D.K.for cause? Theinitial part of Question 53 said: “Briefly describe your general feelings about the death penalty[.]” D.K. wrote, “I don’t believe in death penalty.” (CT 10:2926.) W.C. wrote, “I don’t believe in the death penalty.” (CT 12:3501.) To Question 53(a), which askedjurors to rate themselves on a scale of 1 to 10 on the death penalty, both circled “1,” which corresponded with “strongly against” the death penalty. (CT 10:2926; CT 12:3501.) Question 53(b) asked for a reason for the juror’s view of the death penalty. D.K. wrote, “Men are equals only God can makethose choices.” W.C. wrote: “I don’t feelit is right to take someones[sic] life away.” People v. Woodruff, §115378 Appellant’s Opening Brief73 8 Question 53(c), which asked whetherit would be difficult to vote for the death penalty, also asked for an explanation. In addition to answering “no,” D.K. explained, “I would follow the law.” (CT 10:2927.) In addition to answering “‘yes,” W.C. explained, “It is wrong to kill someone.” Question 55 asked the juror to assume the defendant had been convicted of special-circumstance murder. The question askedthe juror to check(a), that the juror would always vote for the death penalty; (b), the juror would never vote for the death penalty; or (c), “I would considerall of the evidence and the jury instructions as provided by the court and impose the penalty I personally feel is appropriate.” W.C. and D.K. both marked answer(c), that they would considerall of the evidence. (CT 10:2928; CT 12:3503.) The combined answersofjurors W.C. and D.K. suggest that while both strongly opposed the death penalty and W.C. wouldfindit difficult to impose a death penalty, nevertheless both would considerall of the evidence andjury instructions. Thus, the trial judge’s decision to remove both jurors for cause, without questioning on voirdire,is not “fairly supported by the record,” as required by People v. Cunningham. Thetrial judge madehis ruling on the potential for bias of jurors W.C.and D.K.exclusively based on their juror questionnaires. Thetrial judgeignoredhisinitial instinct to question juror D.K. on voir dire about his written answers. Instead, bowing to the prosecutor’s request for People v. Woodruff, S115378 74 Appellant’s Opening Brief reconsideration,the trial judge relied on the prosecutor’s selective view of the juror’s answers. The prosecutor’s motion did not mention other D.K. answers, including: “I would follow the law” (CT 10:2927); and D.K. would “considerall of the evidence and the jury instructions as provided by the court and imposethe penalty I personally feel is appropriate.” (CT 10:2928.) In Stewart, this Court said the prosecution, “as the moving party, bore the burden of demonstratingto the trial court that [the Witt] standard wassatisfied as to each of the challenged jurors.” (Stewart, supra,at p. 445.) In Stewart, as here, the prosecutionrested its motion “solely upon the prospective jurors’ checked answersand brief written comments onthe juror questionnaire.” (/d., at pp. 445-446.) However,this Court said in Stewart, “Decisions of the United States Supreme Court and of this court makeit clear that a prospective juror’s personal conscientious objection to the death penalty is not a sufficient basis for excluding that person from jury service in a capital case under Witt.” (Stewart, supra, at p. 446.) The pertinent question, this Court said, wasnot whether the juror wouldfindit difficult to impose the death penalty, but whether such a juror could “demonstrate an ability to put aside personal reservations, properly weigh and consider the aggravating and mitigating evidence, and makethat very difficult determination concerning the appropriateness of a death sentence.” (Stewart, at p. 447.) People v. Woodruff, S115378 715 Appellant’s Opening Brief In this case, jurors W.C. and D.K. both demonstrated such an ability by checking “(c)”as their answer to Question 55. Because ofthat demonstration, the trial judge erred in dismissing prospective jurors W.C. and D.K.for cause without questioning on voir dire. That error denied Mr. Woodruffhis state and federal constitutional rights to an impartial jury, a fair trial, the heightenedreliability of determinations of guilt and penalty required in death-penalty cases, and due process of law underthe Fifth, Sixth, Eighth and Fourteenth Amendmentsto the United States Constitution, and Article I, sections 7, 15, 16 and 17 of the California Constitution. Thetrial judge’s error requires reversal of Mr. Woodruff’s death sentence, without inquiry into prejudice. (Stewart, supra, at p. 454, citing Davis v. Georgia (1976) 429 U.S. 122 [50 L.Ed.2d 339, 97 S.Ct. 399]; Gray v. Mississippi (1987) 481 U.S. 648 [95 L.Ed. 2d 622, 107 S.Ct. 2045]; United States v. Chanthadra (10" Cir. 2000) 230 F.3d 1237.) b. Biasedjuror Facts Juror No. 3, the only African-American on the jury, identified himself on the juror questionnaire as 31 years old, single, “Afro-American” and a native of Alabama. (CT 6:1740.) He said he workedfull time as an orderfiller for a pharmaceutical companyandpart time as a hospital security guard. (CT 6:1742.) He said his mother wasa correctionalofficer. People v. Woodruff, 8115378 76 Appellant’s Opening Brief (CT 6:1743, 1747.) He checkedthe “tyes” box that the nature of the charges “would makeit difficult or impossible ... to be impartial.” He explained: “Difficult to be fair. My mother and Uncle are peace Officers.” (CT 6:1751.) On the next page of the questionnaire, he wrote: “I am notsure if I can be fair and impartial.” (CT 6:1752.) He described his opinion on the death penalty as, “If the defendantis guilty of murder he/she should get the death penalty.” (CT 6:1754.) On voir dire on November 19, 2002, defense counsel Blankenship asked Juror No.3 if the fact that his mother wasa correctional officer would makeit “hard for you to be fair in a case involving the death of an officer.” (RT 3:989-990.) Juror No.3 replied: “I'm thinking how I'd be leaning towards, you know,guilt. You know,if, umm, you know,totell you thetruth, I couldn't really tell you if I could [be] fair and impartial.” (RT 3:990.) Blankenship askedif the juror could not fulfill his duty because of having a peace officer in the family. The juror replied: “Well, the subject of the case, you know,that's the thing that gets to me, death of a law enforcementofficer.” (Jbid.) Blankenship asked no further questions. Whenprosecutor Soccio asked Juror No. 3 abouthis feelings, the juror replied: “I'd be strongly on the side of him being guilty.” (RT 3:1007.) The prosecutor asked howhis strong feelings abouta police officer dying would impacthis ability to be fair. Juror No. 3 said: “It would be difficult to be fair, you know whatI'm saying? I'm saying to you that I would try to People v. Woodruff, 8115378 77 Appellant’s Opening Brief be fair. ... You know, but I am not sure if I could.” (RT 3:1007.) — No one asked Juror No. 3 on voir dire about the belief he stated on the questionnaire, “If the defendant is guilty of murder he/she should get the death penalty.” (CT 6:1754.) The prosecutor challenged Juror No. 3 for cause, explaining that “he kept talking about how difficult it would be for him to be fair because of law enforcement.” (RT 3:1022.) Blankenship objected to the challenge, saying Juror No. 3 “does not even approximate the standard ofbias that [prospective juror D.B.]'* developed, and she wasallowedto stay.” Blankenship also pointed out that Juror No. 3 was African-American. (RT 3:1022.) Thetrial judge said he would denythe prosecution’s challenge for cause to Juror No. 3 “becauseI believe his responses, albeit somewhat hesitatingly, indicated that he would do his bestto be fair in both the guilt and penalty phases.” (RT 3:1023.) Blankenship said he was puzzled by the prosecutor’s challenge, suspecting “the trap has been set. ... What possible reason could Mr. Soccio be interested in dismissing this juror for bias if indeed he is perhaps answering in a way that would be pro prosecution?” (RT 3:1023.) '* Thetrial judge denied Blankenship’s challenge for cause to D.B. after she answered “yes” whenthe prosecutor asked on voir dire: “Can you befair and impartial? Can you give both sides your best attention and yourability to be fair?” (RT 3:975.) Blankenship usedhis first peremptory challenge to remove D.B. (RT 3:976.) People v. Woodruff, 115378 Appellant’s Opening Brief78 However, Soccio assured the court he wasnotsetting a trap: “I have often stipulated or gone along with for cause people who havestated that they could notbefair, even ones that would appear to be pro prosecution.I assumethat Mr. Blankenship did not challenge SUROR NO.3), in part, because he is African-American, which, again,I think is impermissible to stay on a jury simply because of race. But that's his business.” (RT 3:1024.) In denying the challenge for cause, thetrial judge commentedthatif he had been defense counsel, he would have challenged the juror for cause. Blankenship took exception to that comment: It's quite clear to me you've [nJever been a defense counsel. ... There could be a whole othertactical reason that it could play out in a muchlater time in this process that has to do with what happenedhere. ... [TJhis juror is perfectly accessible to my opinion, and he has not answeredin a way that he could not be fair. And my discernmentin picking manyjuriesis I believe he is an appropriate juror that should not be subjected to cause. (RT 3:1025.) However, other than pointing out that the juror was African- American, Blankenship did notarticulate a strategic or tactical basis for his objection to the prosecutor’s challenge for cause. Discussion The Sixth Amendmentto the United States Constitution provides that all criminal defendants “shall enjoy the right to a speedy and public trial, by an impartial jury.” The United States Supreme Court has said the question of an People v. Woodruff, 8115378 Appellant’s Opening Brief79 P individual juror’s partiality “is plainly one of historical fact: did a juror swear that he could set aside any opinion he might hold and decide the case on the evidence, and should the juror's protestation of impartiality have been believed.” (Patton v. Yount, supra, 467 U.S. at p. 1036.) If the jury includes someone whois not impartial, such a case is among the “very limited class of cases” with structural error “subject to automatic reversal.” (Nederv. United States (1999) 527 U.S. 1, 8 [119 S. Ct. 1827, 144 L. Ed. 2d 35].) “[T]rying a defendant before a biased jury is akin to providing him no trial at all. It constitutes a fundamental defect in the trial mechanism itself.” (Johnson v. Armontrout (g" Cir. 1992) 961 F.2d 748, 755.) At Mr. Woodruff’s trial, the answer to the question raised in Patton is clearly no: Juror No. 3 never made a “protestation of impartiality.” In fact, he consistently communicated his own belief that he was biased. On the juror questionnaire, he said it would be “[dl]ifficult to be fair.” (CT 6:1751.) On voir dire, he told defense counsel, “I couldn't really tell you if I could [be] fair and impartial” (RT 3:990); and he told the prosecutor,“I wouldtry to be fair ... but I am notsure if I could.” (RT 3:1007.) Even if Juror No. 3 had stated that he could be impartial, such a statement would not“be dispositive of the accused's rights, and it [would remain] open to the defendant to demonstrate ‘the actual existence of such an opinion in the mind ofthe juror as will raise the presumption of partiality.’” (Murphy v. Florida (1975) 421 U.S. 794, 800 [44 L. Ed. 2d People v. Woodruff, 8115378 Appellant’s Opening Brief80 8 589, 95 S. Ct. 2031], quoting Irvin v. Dowd (1961) 366 U.S. 717, 723 [81 S.Ct. 1639, 6 L.Ed. 2d 751].) In Blankenship’s voir dire of Juror No. 3, the defense counsel did identify such a presumptionofpartiality, and the juror never did swear that he couldset aside his biases. Instead, Blankenship established that the juror had a mother whowasa correctional officer, the juror was “leaning towards ... guilt,” he was not certain he could befair, and the death of a law enforcementofficer “gets to me.” (RT 3:990.) The prosecutor, far from rehabilitating Juror No. 3, established further that the juror would be “strongly on the side of him being guilty,” that it “would be difficult to be fair” and he was notsure if he could befair. (RT 3:1007.) This case involves the peculiar situation of the prosecutor seeking to exclude pro-prosecution Juror No. 3, and defense counsel objecting to the juror’s removal for no apparent reason other than the juror was African- American.”° The jury voir dire in Mr. Woodruff’s trial bears a striking similarity to that in Hughes v. United States (6" Cir. 2001) 258 F.3d 453, in which a '’ Before the start of jury voir dire, Blankenship had declined to stipulate to the removal for cause of another prospective juror who had indicated on the juror questionnaire that he would never vote for the death penalty and would not follow the law if it conflicted with his personalbeliefs. Blankenship said: “I can't stipulate on him. He's African-American and—” The judgeinterrupted andsaid, ““That’s fine.” The judge granted the challenge. (RT 3:828.) People v. Woodruff, 8115378 Appellant’s Opening Brief81 juror said she hada relative and friends in law enforcement and expressed doubts abouther ability to be impartial. On appeal, the Sixth U.S. Circuit Court of Appeals said it was notthe juror’s doubt about her own impartiality that disqualified her, but “the conspicuouslack of response, by both counsel andthetrial judge, to [the juror’s] clear declaration that she did not think she could be a fair juror.” (Hughes, at p. 458.) The Sixth Circuit overturned the conviction, concluding that empaneling one biased juror warranted a newtrial. (Hughes, at p. 463.) Like the juror in Hughes, Juror No. 3 in Mr. Woodruff’s trial had relatives in law enforcement and doubted that he could befair to the defendant. Also like in Hughes, questioning of the juror ended without an attempt by either counselor thetrial judge to rehabilitate the juror. In Hughes, the appellate courtsaid a trial court “may rely upon juror assurances of impartiality in deciding whether a defendanthassatisfied his burden of proving actual prejudice.” (Hughes, at p. 460.) In Mr. Woodruff’s trial, Juror No.3, like the juror in Hughes, offered no such assurances of impartiality. People v. Woodruff, 115378 82 Appellant’s Opening Brief i. Ineffective assistance Byinsisting that the biased Juror No. 3 oughtto be seated on the jury, Blankenship demonstrated a profound lack of appreciation of his properrole at trial. “Among the mostessential responsibilities of defense counselis to protect his client's constitutional right to a fair and impartial jury by using voirdire to identify and ferret out jurors who are biased against the defense.” (Miller v. Francis.(6" Cir. 2001) 269 F.3d 609, 615.) Far from ferreting out a biased juror, Mr. Woodruff’s defense counsel embracedthe biased juror, apparently on the inherently racist theory that all African-American jurors would be favorable to an African- American defendant, even a juror who believed without hearing any evidence that Mr. Woodruff was guilty of murder and therefore deserved to be executed. Such anill-conceived approach cannotqualify as strategic. “The question of whetherto seat a biased juroris not a discretionary or strategic decision. The seating of a biased juror who should have been dismissed for cause requires reversal of the conviction.” (Hughes, supra, at p. 463, citing United States v. Martinez-Salazar (2000) 528 U.S. 304, 316 [145 L.Ed. 2d 792, 120 S.Ct. 774]; also see Quintero v. Bell (6"Cir. 2004) 368 F.3d 892, cert. den. (2005) 544 U.S. 936 [125 S.Ct. 1636, 161 L.Ed.2d 506], citing United States v. Cronic (1984) 466 U.S. 648 [104 S.Ct. 2039, 80 L.Ed. 2d 657] (failure to object to biased juroris structural error that is per se prejudicial); United States y. Gonzalez (9" Cir. 2000) 214 F.3d 1109, People v. Woodruff, 8115378 83 Appellant’s Opening Brief 1111 (presence of biased juror cannot be harmless; the error requires a new trial without a showingof actual prejudice).) Mr. Woodruff’s defense counsel should have made a challenge for cause to Juror No.3, because of his family relationships in law enforcement, his doubts about his own ability to be fair, his preconceived notions about Mr. Woodruff’s guilt, and his belief that all murderers should be executed. At the very least, defense counsel should havestipulated to the prosecution’s challenge for cause to Juror No. 3. Had defense counsel doneso,it is inconceivable that the juror would have survived the challenge, because thetrial judge consistently followedthe parties’ stipulations to remove jurors for cause. (See RT 3:802-854.) Instead, defense counselfailed his mostbasic of duties, allowing — and even encouraging — a biased juror to be seated. That was notstrategic; it was incompetent. As a consequence, Mr. Woodruff was denieda fair trial, assistance of counsel, heightenedreliability of guilt and penalty verdicts in a death-penalty proceeding, and due process of law under the Sixth, Eighth and Fourteenth Amendmentsto the United States Constitution, and Article 1, sections 7, 15, 24 and 29 of the California Constitution. il. Abuse of discretion Thetrial judge’s characterization of Juror No. 3’s position as that he “would do his best to be fair” did not overcomethe juror’s repeatedly People v. Woodruff, S115378 84 Appellant’s Opening Brief expressed doubts abouthis ability to be fair. “For a juror to say, ‘I think I could be fair, but ...,’ without more, however, must be construed as a statement of equivocation.It is essential that a juror ‘swear that [she] could set aside any opinion [she] might hold and decide the case on the evidence.’” (Miller v. Webb (6™ Cir. 2004) 385 F.3d 666, 675, quoting Patton, supra, 467 U.S. at p. 1036.) Juror No. 3 did not even say he thought he could be fair — he said he would try. The prosecutor followed up by asking if there was “a but to that,” which the juror acknowledged there was. “You know,I have strong feelings about the subject of the case. ... Like, I'd be strongly on the side of him being guilty.” (RT 3:1007.) Whenthetrial court is left with a statementof partiality, as with Juror No. 3, “coupled with a lack of juror rehabilitation or juror assurances of impartiality, [the appellate courtis] left to find actual bias. Whena trial court is confronted with a biased juror, ... the judge must, either sua sponte or upon a motion, dismiss the prospective juror for cause.” (Miller v. Webb, supra, 385 F.3d at p. 675, citing Frazier v. United States (1948) 335 U.S. 497, 511 [93 L.Ed. 187, 69 S.Ct. 201]; also see United States v. Martinez- Salazar, supra, 528 U.S. at p. 316 792](trial judge’s decision to seat a juror whoshould have been dismissed for cause requires reversal).) “Due process meansajury capable and willing to decide the case solely on the evidence beforeit, and trial judge ever watchful to prevent prejudicial People v. Woodruff, 8115378 85 Appellant’s Opening Brief occurrences and to determine the effect of such occurrences when they happen.” (Smith v. Phillips (1982) 455 U.S. 209, 217 [71 L.Ed. 2d 78, 102 S.Ct. 940].) In Mr. Woodruff’s trial, the trial judge failed in his duty to be ever watchful to prevent prejudice to the defendant from the seating of a biased juror. Before denying the prosecution’s challenge for cause, thetrial judge should have inquired as to whether the juror could promise to be impartial. However, the judge madeno inquiry and the juror made no such promise. Instead, Juror No. 3’s repeated statements of his belief in Mr. Woodruff’s guilt, his doubts abouthis ability to be fair, and the trial judge’s “conspicuous lack of response”to the indications of juror bias, allowed a biased juror to be seated. Consequently, Mr. Woodruff wasdenieda fairtrial, the heightened reliability of guilt and penalty determinations required in death-penalty proceedings, and due process of law, under the Sixth, Eighth and Fourteenth Amendments to the United States Constitution and Article 1, sections 7, 15, 24 and 29 of the California Constitution. iii. Automatic vote for death No oneduring jury voir dire — not defense counsel, not the prosecutororthetrial judge — questioned Juror No. 3’s assertion in the juror questionnaire that “If the defendant is guilty of murder he/she should get the death penalty.” (CT 6:1754.) Onits face, the juror’s statementis a People v. Woodruff, 8115378 86 Appellant’s Opening Brief statementthat the juror would automatically vote for the death penalty, without weighing aggravating and mitigating evidencein the penalty phase, as Penal Code section 190.3 requires. “A juror who will automatically vote for the death penalty in every case will fail in good faith to consider the evidence of aggravating and mitigating circumstancesas the instructions require him to do. ... If even one such juror is empaneled and the death sentenceis imposed,the State is disentitled to execute the sentence.” (Morganv. Illinois (1992) 504 U.S. 719, 729 [112 S.Ct. 2222].) Any reasonable defense counsel would have questioned Juror No. 3 on voir dire abouthis beliefs on the death penalty, and whether he would be able to put aside his beliefs and weigh aggravating and mitigating evidence in the penalty phase, as statute requires. However, defense counsel made no such inquiry. Any responsible trial judge, before denying a challenge for cause to Juror No. 3, would have inquired into whether the juror could follow the law or would holdfast to his belief that a conviction for murder meantthat the defendant“should get the death penalty.” (CT 6:1754.) However, the trial judge made no such inquiry. As a result of all of these actions and oversightsofthe trial judge and defense counsel, a biased juror was seated. As a result, Mr. Woodruff was denieda fairtrial, effective assistance of counsel, the heightened People v. Woodruff, 115378 87 Appellant’s Opening Brief reliability required in a death-penalty case, and due processof law in violation of his rights under the Sixth, Eighth and Fourteenth Amendments to the United States Constitution and Article 1, sections 7, 15, 24 and 29 of the California Constitution. The remedyfor these structural errors is clear: Mr. Woodruff’s convictions and death sentence must be overturned. C. Peremptory challenges i. Trial judge erred in denying first Wheeler motion based on confusion about juror’s identity. Facts During jury selection on November 19, 2002, defense counsel Blankenship made an oral motion citing People v. Wheeler’®, supra, 22 Cal. 3d 258. The motion alleged racial discrimination in jury selection after the prosecutor used peremptory challenges to dismiss prospective jurors L.T. (RT 3:976) and S.J. (RT 3:1028), both of whom were African-American. (RT 3:1032-1034.) Defense counsel alleged that the prosecutor had made a disproportionate inquiry into African-American jurors, while seeking to rehabilitate jurors who were not African-American. (RT 3:1033.) '® An objectionat trial under Wheeler preserves a claim on appeal under Batson v. Kentucky (1986) 476 U.S. 79 [106 S.Ct. 1712, 90 L.Ed.2d 69]. (People v. Lancaster (2007) 41 Cal. 4" 50, 73 [58 Cal.Rptr.3d 608, 158 P.3d 157].) People v. Woodruff, S115378 88 Appellant’s Opening Brief Thetrial judge denied the defense motion without asking the prosecutor to explain his reasons for the peremptory challenges. Thetrial Judgesaid he did not find a primafacie case of systematic exclusion of African-American jurors. Thetrial judge said L.T. had had anincidentin which someoneshotat her house, and she was dissatisfied with the law enforcement response, while S.J. had compared jury duty with a root canal and hadsaid he did not wantto be in court. (RT 3:1035.) However,the trial judge was mistaken in his characterization of S.J., whowasnotthe juror who compared jury duty to a root canal. The juror who made that comparison was D.B. (RT 3:932), a white juror (CT 8:236) whohadalready been dismissed on a defense peremptory challenge. (RT 3:1029.) To the contrary, S.J. had said on voirdire that he waswilling to serve on the jury if he had to (RT 3:919), and that he believed in some cases the death penalty wasjustified. (RT 3:945.) In his juror questionnaire, S.J. had said he was 54 yearsold, a native of Alabama, a “Black American” and an Air Force veteran. He had been married for 20 years, had two children, and had been workingas an aircraft mechanic for United Parcel Service in San Diego for 14 years. (CT 8:2175-2197.) Discussion The equal protection and due processclauses of the United States Constitution prohibit a prosecutor from excluding qualified and unbiased People v. Woodruff, $115378 Appellant’s Opening Brief89 persons from the jury on the grounds ofrace or sex, regardless ofthe defendant's race and sex. (Miller-El v. Dretke (2005) 545 U.S. 231 [125 S.Ct. 2317, 162 L.Ed.2d 196]; J.E.B. v. Alabama (1994) 511 U.S. 127 [114 S.Ct. 1419, 128 L.Ed.2d 89]; Powers v. Ohio (1991) 499 U.S. 400 [111 S.Ct. 1364, 113 L.Ed.2d 411]; Batson v. Kentucky, supra, 476 U.S. 79.) For more than 130 years, the United States Supreme Court has held that a state denies an African-American defendant equal protection of the laws whenit puts him ontrial before a jury from which membersof his race have been purposefully excluded. (Strauder v. West Virginia (1880) 100 U.S. 303, 310 [25 L.Ed. 664].) “When the government’s choice of jurors is tainted with racialbias, that ‘overt wrong ... casts doubt over the obligationofthe parties, the jury, and indeed the court to adhere to the law throughoutthetrial. ...’ [Citation omitted.] That is, the very integrity of the courts is jeopardized when a prosecutor’s discrimination ‘invites cynicism respecting the jury’s neutrality,’ and undermines public confidence in adjudication.” (Miller-El v. Dretke, supra, 545 U.S.at p. 238, quoting Powers v. Ohio, supra, 499 USS.at p. 412.) In Batson v. Kentucky, supra, 476 U.S. 79, the United States Supreme Court described a three-step process for constitutional review of peremptorystrikes. First, the defendant must makeouta primafacie case “by showingthat the totality of the relevant facts gives rise to an inference People v. Woodruff, S115378 Appellant’s Opening Brief90 of discriminatory purpose.” (/d., at pp. 93-94.) Second, once the defendant has made out a primafacie case, the “burden shifts to the State to explain adequately the racial exclusion” by offering permissible race-neutral justificationsfor the strikes. (/d., at p. 94.) Third, “[i]f a race-neutral explanation is tendered,the trial court must then decide ... whether the opponentofthe strike has proved purposeful racial! discrimination.” (Johnson v. California (2005) 545 U.S. 162, 168 [125 S.Ct. 2410; 162 L.Ed. 2d 129], quoting Purkett v. Elem (1995) 514 U.S. 765, 767 [115 S.Ct. 1769; 131 L.Ed. 2d 834].) A prosecutor’s use of peremptory challenges to exclude prospective jurors based onracealso violates the defendant’s right to trial by a jury drawn from a representative cross-section of the community underarticleI, section 16 of the California Constitution. (People v. Bonilla (2007) 41 Cal. 4" 313, 341 [60 Cal.Rptr.3d 209, 160 P.3d 84].) In this case, defense counsel properly made out the primafacie case for discriminatory purpose, observing that the prosecutor had made a disproportionate inquiry into African-Americanjurors and had soughtto rehabilitate jurors who were not African-American. (RT 3:1033.) Defense counsel pointed specifically at peremptory challenges used to exclude S.J. and L.T., both of whom were African-American. (RT 3:1034.) Thetrial judge failed to take the second Batson step of asking the prosecutorhis reasonsfor the peremptorystrikes, instead denying the People v. Woodruff, S115378 91 Appellant’s Opening Brief defense motion on the faulty reasoning that the prosecutor’s acceptance of one black juror was enoughto refute discriminatory intent. The judge observed that the prosecutor had acceptedthe panel, including an African- American, Juror No. 3. (RT 3:1034.) Juror No. 3 was an extraordinary example. (See Claim A4, subclaim (b), infra.) He had said on voirdire, “I’d be strongly on the side of him being guilty.” (RT 3:1007.) Still, Juror No. 3’s selection, notwithstanding his admittedly pro-prosecution bias, was sufficient in the judge’s mindto dismiss any allegation of racially discriminatory intent in the prosecutor’s jury selection: “It kind of shoots the theory that he’s systematically excluding African Americansin the foot.” (RT 3:1034.) In People v. Snow (1987) 44 Cal. 3d 216 [242 Cal.Rptr. 477, 746 P.2d 452], this Court rejected the premise, such asthetrial judge made in this case, “that if the jury panel contains at least a minimum numberof membersof the cognizable group to provide defendant a representative cross-section of the community, he cannot complain of the prosecutor's pattern of unlawful discrimination in the use of his peremptory challenges.” (Id., at p. 226.) This Court concluded that nothing in its cases or in Batson “supports such an analysis.” (Ibid; also see Snyder v. Louisiana, supra, 552 USS.at p. 478 (“The Constitution forbids striking even a single prospective juror for a discriminatory purpose.”’).) People v. Woodruff, S115378 92 Appellant’s Opening Brief Thetrial judge’s conclusions about the prosecution’s motives for rejecting prospective jurors S.J. and L.T. were also improper. The United States Supreme Court hasstressedthattrial courts should not “substitute their own speculation as to reasons why a juror might have been struck for the prosecutor’s stated reasons.” (Green v. Lamarque (9" Cir. 2008) 532 F. 3d 1028, 1030, citing Miller-El v. Dretke, supra, 545 U.S.at p. 252.) This Court has characterized the rule as: “[E]fforts by trial or reviewing court to ‘substitute’ a reason will not satisfy the prosecutor’s burdenof stating a racially neutral explanation.” (People v. Lenix (2008) 44 Cal. 4" 602, 625 [80 Cal.Rptr.3d 98, 187 P.3d 946].) Nonetheless, the trial judge in this case speculated about the prosecutor’s supposed non-racial reasons for excluding twoblack jurors, including L.T.’s prior dissatisfaction with law enforcementand an erroneousattribution of a “root canal” remark to S.J. (RT 3:1035.) In fact, S.J. expressed no reluctance to serve on the jury whatsoever. (See CT 8:2175-2197; RT 3:918-919, 944-945.) S.J. was indistinguishable in any respect except race from Juror No. 7, who was white (CT 7:1832), and Juror No. 12, who was apparently’’ Latino. (CT 7:1924.) All three membersof the venire were males in their 50s, with service/repair jobs for major companies. All three ranked themselves“6” on a scale from 1 to 10 '? Juror No. 12 left blank the section in the questionnaire on race and ethnic origin, but answered elsewherethat his place of birth was Mexico. (CT 7:1924.) People v. Woodruff, $115378 Appellant’s Opening Brief3 p on the death penalty in the juror questionnaire. (CT 7:1846, 1938; CT 8:2191.) Again,the trial judge did not inquire beyondthefirst step of Batson analysis. Thus, the prosecution was not even required to offer race-neutral reasons for the peremptory challenge to prospective juror S.J. This Court held in People v. Lenix, supra, 44 Cal.4" 602, that a reviewing court must engage in comparative juror analysis “when the defendantrelies on such evidence and the record is adequate to permit the comparisons.” (Lenix, at p. 607.) Comparative analysis should include “Jury voir dire and the jury questionnaires of all venire members.” (Green v. Lamarque, supra, 532 F.3d at p. 1030.) In this case, defense counsel alleged disparate treatment of otherwise similarly situated white and black jurors in the prosecution’s voir dire. (RT 3:1033.) The trial record includes ample evidence in the voir dire and juror questionnaires to demonstrate similarities between S.J., a black prospective juror who was excused (CT 8:2175-2197), and Jurors No. 7 and No. 12, who were notblack and were seated. (CT 7:1830-1852, 1922-1944.) “Tf a prosecutor’s proffered reason for striking a black panelist applies just as well to an otherwise-similar nonblack whois permitted to serve, that is evidence tending to prove purposeful discrimination to be considered at Batson’s third step.” (Miller-El v. Dretke, supra, 545 U.S.at p. 241.) People v. Woodruff, S115378 Appellant’s Opening Briefp 94 P Here,like in Batson,“the trial court flatly rejected the objection without requiring the prosecutor to give an explanation for his action.” (Batson, supra, at p. 100.) In Batson, the remedy wasto remand for such an inquiry. ([d.) Here, the evidence of the prosecutor’s discriminatory intent is manifest, including his own words complaining that he was being “forced to take jurors simply becauseof their race.” (RT 3:830.) If the trial judge had reachedthe third Batson step, as he should have regarding prospective juror S.J., a comparison of the shared characteristics of S.J. with trial jurors Nos. 7 and 12 would have demonstrated that any race-neutral explanation for the exclusion of S.J. would have been pretextual. (Turner v. Marshall (9" Cir. 1997) 121 F.3d 1248, 1251-1252.) Thetrial judge was wrong aboutthe facts, and he was wrong about the law. Hiserrors, individually and collectively regarding prospective juror S.J., require reversal of Mr. Woodruff’s conviction because Mr. Woodruff wasdenied a fair trial, due process and equal protection of the laws underthe state and federal constitutions. People v. Woodruff, 8115378 95 Appellant’s Opening Brief il. Trialjudge erred in denying second Wheeler motion with faulty reasoning for concluding prosecutor’s reasons for excluding black jurors were race-neutral. Facts Defense counsel’s second motion under People v. Wheeler’® concernedthe prosecutor’s peremptory challenge to prospective juror M.M..,a black native of Africa. (RT 4:1137; CT 10:2935.) Following the three-step Batson process, the judge properly found a primafacie case of racial discrimination in Batson’s first step, and asked the prosecutorto justify the exclusion of M.M.from the jury. (RT 4:1137.) In the second Batson step, the prosecutor said M.M.did his dissertation for a master’s degree in sociology on colonization and concluded it was brainwashing to exploit his country. The prosecutorsaid he had grave concerns about anybody with a social services background serving on the jury. He said he did not think M.M. would make a good juror. (RT 4:1137-1138.) Thetrial judge said that to grant the defense motion, he had to find no race-neutral reason for the prosecution’s decision to dismiss M.M. from the jury. The judge said he had found a primafacie case that required an '8 Defense counsel used the word “renew”with respect to his Wheeler motion regarding prospective juror M.M., whichthetrial judge: characterized as a motion for mistrial. (RT 4:1135-1139.) By renewing the earlier Wheeler motion, defense counsel preserved the claims for appeal. (People v. Hartsch (2010) 49 Cal.4th 472, 490 fn. 18 [110 Cal-Rptr.3d 673, 232 P.3d 663].) People v. Woodruff, 8115378 Appellant’s Opening Brief96 explanation, but the prosecutor’s explanation gave nonracial reasons and the judge suspected the same juror would have been excludedif white. (RT 4:1139.) The judge said from his experience, people with social service backgroundsareinclined to hold the prosecution to a higher standard than required by law, something more than proof beyond a reasonable doubt. The judge said he wassatisfied that the explanation that the prosecutor gave wasrace-neutral. The judge noted that an African-American, Juror No.3, remained on the panel. Hesaid all three of the black jurors excused by the prosecutor via peremptory challenges had been removedfor race-neutral reasons. (RT 4:1140.) Discussion In the prosecutor’s self-described “race battle” over jury selection (RT 3:830), he sought to exclude, via challenges for cause or peremptory challenges,all but one black prospective juror who appeared in the jury box during voir dire. Thetrial judge’s example to the contrary — that the prosecutor had accepted Juror No. 3 — is hardly commendable. The prosecutor had challenged Juror No. 3 for cause because of the juror’s expressions of bias (RT 3:1022, 1024), yet accepted him asa juror after defense counsel objected to his removal (RT 3:1022), notwithstanding the juror’s statement that he was inclinedto believe the defendant was guilty before hearing any evidence (RT 3:990), and he did not believe he could be People v. Woodruff, S115378 97 Appellant’s Opening Brief impartial because.his mother and an uncle workedin law enforcement. (CT 6:1751.) But the presence on the jury of the admittedly pro-prosecution Juror No. 3 did not in any way negate the harm wroughtby the prosecutor’s systematic exclusion of other black jurors. “The Constitution forbids striking even a single prospective juror for a discriminatory purpose.” (Snyder v. Louisiana, supra, 552 U.S.at p. 478.) The prosecutor’s reason for removing prospective juror M.M. was pretextual. The prosecutor pointed to M.M.’s master’s degree in sociology and expressed “grave concerns” abouthis social services work background. (RT 4:1137.) However, the prosecutor did not attempt to remove Juror No. 2, aresearch associate at the University of California, Riverside (CT 6:1719), or Juror No. 11, a second-grade teacher who hadstudied psychology. (CT 7:1903.) Juror Nos. 2 and 11 were white. (CT 6:1717; CT 7:1901.) Nothing about prospective juror M.M.’s occupational or educational background — or his expressed views on the death penalty — distinguished him from Juror No. 2 and 11. What distinguished him washis race — he was black and they were not. Thatis a constitutionally unacceptable selection criterion. “Tf a prosecutor’s proffered reason for striking a black panelist applies just as well to an otherwise-similar nonblack whois permitted to People v. Woodruff, S115378 98 Appellant’s Opening Brief serve, that is evidence tending to prove purposeful discrimination to be considered at Batson’s third step.” (Miller-El v. Dretke, supra, 545 U.S.at p. 241.) Onthe juror questionnaire, prospective juror M.M.ranked himself 7 out of 10 on the death penalty, the same as Juror No. 1 (CT 19:5557) and Juror No. 5 (CT 7:1800), and higher than Juror No. 7 (CT 7: 1832) and Juror No. 12. (CT 7:1924.) Prospective juror M.M.wrote on his questionnaire:“T think all right-thinking persons who willfully commit a murder should be held accountable for their action” (CT 10:2949); and, “I think the death penalty is just a form of punishment.” (CT 10:2950.) On voir dire, prospective juror M.M.said he would be capable of voting for the death penalty after hearing the facts. (RT 4:1108, 1128.) The judge’s standard for reviewing defense counsel’s Wheeler motion waserroneous. The appropriate question in a proper Batson inquiry was not whether the prosecutor offered a race-neutral reason for dismissing prospective juror M.M. The appropriate question was whetherthe reason the prosecutor offered was pretextual. (Batson, supra, 476 U.S.at p. 95.) The prosecutor had characterized jury selection in this case as a “race battle,” had attempted to removeall but one black juror from the panel, and had selected white jurors with characteristics similar to those that supposedly disqualified black jurors, including M.M.’s education and occupation. People v. Woodruff, S115378 99 Appellant’s Opening Brief "The fact that [a proffered] reason also applied to these other panel members, most of them white, none of them struck, is evidence of pretext." (Miller-El v. Dretke, supra, 545 U.S.at p. 248.) Thetrial judge abandonedthethird step required in Batson — weighing the prosecution’s reasons for removing the juror against the evidence that those reasons werepretextual. Instead,thetrial judge erred in accepting the prosecution’s stated reason without scrutiny. The evidence, which this Court reviews de novo (People v. Hawthorne (2009) 46 Cal. 4" 67, 79 [92 Cal.Rptr.3d 330, 205 P.3d 245]), supports defense counsel’s characterization of the prosecutor’s exclusion of prospective juror M.M.as “the straw that breaks the camel’s back ... given the pattern that’s gone on through the whole courseofthis selection.” (RT 4:1138.) The evidence of a pattern of racially discriminatory peremptory challenges by the prosecutor should have requiredthetrial judge to grant defendant’s motion for mistrial because of the harm done to Mr. Woodruff in the race-basedselection of the jury. Becausethetrial judge failed to perform his duty, Mr. Woodruff was deniedhis rights to a fair trial, the heightened reliability of guilt and penalty verdicts required in death-penalty cases, due process and equal protection of the laws, andto trial by a jury drawn from a representative cross-section of the community, under the Sixth, Eighth and Fourteenth Amendmentsto People v. Woodruff, S115378 100 Appellant’s Opening Brief the United States Constitution, and Article 1, sections 7, 15, 17, 24, 29 and 31 of the California Constitution. Therefore, Mr. Woodruff’s convictions in this case must be overturned. People v. Woodruff, 8115378 101 Appellant’s Opening Brief CLAIM AS:Trial judge erred in allowing prosecutor’s prejudicial insinuation about defendantinsisting on right totrial. During voir dire, the prosecutor falsely insinuated to prospective jurors that Mr. Woodruff had askedfor a trial. The trial judge refused to remedy the prejudicial insinuation. The prosecutor’s improper comment tainted the trial by allowing the jurors to infer that Mr. Woodruff had other options, such as a plea bargain, that he had declined. As a result, Mr. Woodruff was denieda fair trial and due process of law. Facts During voir dire of prospective jurors, the prosecutor asked prospective juror D.M. about her experience as a witness in anothercase. She said she did nottestify; she told the district attorney what she saw and the DA took it to the other attorney. “And the guy said, okay,I didit.” (RT 3:1072-1073.) In jury voir dire at Mr. Woodruff’s trial, the prosecutor followed up by asking D.M.: “Do you understand, though that even somebody whodid it can ask for a trial? Do you understand that?” “Uh-huh.” “Thatit’s a constitutional right for everybody, even if they didit, to ask for a trial? Will you not hold it against the defendant?” “Right.” (RT 3:1073.) Defense counsel objected. The judge overruled the objection. (/bid.) Defense counselrevisited the issue the following day, outside the presence of jurors. He said Mr. Woodruff had not asked fora trial, the People v. Woodruff, 8115378 102 Appellant’s Opening Brief prosecutor’s comments were “a little over the top,” and the prosecutor’s comments implied that the defendant had been offered a plea bargain, whichhe had notbeen offered. Defense counsel objected to the prosecutor’s conduct, which defense counsel alleged had prejudiced the jury. “It’s very misleading and prejudicial to Mr. Woodruff in light of the panel thinking the reason we’re here is Mr. Woodruff asked for this trial.” (RT 4:1092.) The judge said the prosecutor’s comments werein the context of “the juror ... saying that a videotape will be nice. And Mr. Soccio’s comments to the effect, Hey, even if the guy is caught on tape, a presumption of innocence applies, and you haveto follow the law. You are not gonna hold it against the defendant because we’re havinga trial.” (RT 4:1094.) Defense counsel replied that he did not have “any recollection of... the context to which you have depicted those comments.” (RT 4:1094.) Indeed, the judge’s recollection was faulty. The reference to a videotape occurred in the prosecutor’s voir dire of another prospective juror, H.H. In answerto a question about whether he would require the prosecution “to convince you absolutely without any doubt,” H.H. asked, “How could you do somethinglike that? If you had a video here to see —” The prosecutor interrupted the prospective juror and H.H. never had a chance to complete the thought. (RT 3:942-943.) People v. Woodruff, 8115378 Appellant’s Opening Brief1 P Discussion The relevant question in a reviewing court’s consideration of a claim of prosecutorial misconduct“is whether the prosecutors’ comments ‘so infected the trial with unfairness as to makethe resulting conviction a denial of due process.’” (Darden v. Wainwright (1986) 477 U.S. 168, 181 [106 S.Ct. 2464, 91 L.Ed.2d 144], quoting Donnelly v. DeChristoforo (1974) 416 U.S. 637 [94 S.Ct. 1868, 40 L.Ed.2d 431].) Under Darden,“the first issue is whether the prosecutor's remarks were improperand,if so, whether they infected the trial with unfairness.” (Tan v. Runnels (9" Cir. 2005) 413 F.3d 1101, 1112.) Here, the prosecutor’s commentin voir dire managedto plant several prejudicial seeds in the jurors’ minds before they had heard any evidence, even before they had been empaneled: (1) Even if the defendant “did it,” (2) he had a constitutional right to ask for a trial, which (3) the jurors shouldn’t hold against him. It is a “straw man” argument becauseit ascribes to the defendant an action hedid nottake, to ask fora trial. Implicit in the comment, as defense counsel argued, wasthe false implication that the defendant had been offered another option — a plea deal that he rejected. Thusplanted in the jurors’ minds, those false assumptions would color every piece of evidence and every witness’s testimony. The jurors would plausibly conclude that even though the defendantwasguilty, he had askedfora trial. People v. Woodruff, 83115378 Appeilant’s Opening Brief104 The prosecutor’s improper commentaboutthe assertion of the Sixth Amendmentrightto trial, by itself and in combination with the prosecutor’s other improper comments that are addressed in other claims, denied Mr. Woodruffhis rights to a fairtrial, to the heightenedreliability of guilt and penalty verdicts required in death-penalty cases, and due process of law underthe Sixth, Eighth and Fourteenth Amendmentsto the United States Constitution and Article 1, sections 7, 15, 17 and 29 of the California Constitution. Mr. Woodruff’s convictions should be overturned. People v. Woodruff, $115378 105 Appeilant’s Opening Brief B. Guilt phase CLAIM B1: Trial judge refused to limit number of uniformed police officers in courtroom, which created intimidating atmosphere. Thetrial judge claimed he did not have authority to limit the number of uniformed police officers in the courtroom. As a result, numerous uniformed Riverside police officers sat in the visitors gallery wearing blue wristbands in memoryofthe victim, creating an intimidating atmosphere that deprived Mr. Woodruffof his state and federal constitutional rights to a fair trial, heightened reliability of guilt and penalty verdicts in a death- penalty case, and due process of law. Facts At a hearing December 2, 2002, regarding motionsin limine, defensecounsel Mark Blankenship requested a court order prohibiting or limiting the presence of uniformedpolice officers in the courtroom during the trial. Blankenship said an abundanceofpolice officers in the hallway or in the courtroom would be intimidating or distracting and would makeit difficult for the jury to do its job. (RT 4:1256.) Trial Judge Christian Thierbach denied the motion, saying he had no idea whether there was a campaign “to stack the courtroom with uniformed officers. If there is, that’s their business and they’re gonna haveto live with the outcome if something similar happensasit did in the case I was referring to earlier. But for meto issue an order excluding uniformed People v. Woodruff, S115378 Appellant’s Opening Brief106 officers from attending would be illegal. I don’t have authority to dothat, so I’m not gonnaissue such an order.” (RT 4:1258.) In trial testimony, Officer Benjamin Bakertestified that on the day of the shooting, “I had a uniform on like a numberof officers do in this room. | had a uniform on.” (RT 5:1447.) In addition to their uniforms, Riverside police officers wore blue wristbandsin the courtroom. Officer Lavall Nelson testified that he wore his wristband every day in memoryof Jacobs. (RT 10:2247.) Officer GiovanniIli also wore a blue wristband while hetestified. Hesaid every Riverside police officer was wearing a wristband, whichsaid: “Charles Doug Jacobs, the Third. Born December 29, 1995!”. End of watch, January 13, 2001, 1428 hours.” (RT 12:2686.) The intimidating atmosphere included not only uniforms and wristbands, but also gestures from the audience. On December5, 2002, defense counsel complained to the court that Officer Baker’s brother, a formerpolice officer, had gestured with his fingers like he was pointing a gun at the defendantas the room was emptying for a recess. (RT 7:1732.) The judge respondedthat he would ask the sheriff’s department to investigate. The judge said he would nottolerate disruptive or intimidating conduct. If he sawit, he said, the person would be removedfrom the courtroom forthe duration of thetrial, at least. (RT 7:1733.) "? This refers to the date Jacobs became a Riverside police officer. People v. Woodruff, 115378 Appellant’s Opening Brief107 g Discussion Notwithstanding Judge Thierbach’s claim of powerlessness to control his courtroom, Californiatrial judges “have plenty of tools, including statutes from various codes and rules of court. These statutes and rules give judges adequate authority to control how hearings proceed.” (Administrative Office of the Courts, Courtroom Control: The Basics (2009).°°) Trial judges have an obligation to ensure that their courtroomsare free from a coercive or intimidating atmosphere, Justice Kennedy observed in his concurrence in Carey v. Musladin (2006) 549 U.S. 70, 80 [127 S.Ct. 649], in which the Supreme Court held that a defendant wasnotinherently prejudiced whenspectatorsathis trial wore buttons depicting the murder victim. Justice Kennedy explained: The rule against a coercive or intimidating atmosphereattrial exists because “we are committed to a governmentof laws and not of men,” under whichit is “of the utmost importance that the administration of justice be absolutely fair and orderly,” and “[t]he constitutional safeguardsrelating to the integrity of the criminal process attend every stage of a criminal proceeding... culminating with trial “in a courtroom presided over by a judge.” (Id., quoting Cox v. Louisiana (1965) 379 U.S. 559, 562 [85 S.Ct. 476, 13 L.Ed.2d 487].) 0 http://www2.courtinfo.ca.cov/protem/courses/cc/html_version/cc2.htm People v. Woodruff, 8115378 108 Appellant’s Opening Brief In Musladin, Justice Kennedy encouraged the Supreme Court to adopt “a generalrule to preserve the calm and dignity of a court,” such as a prohibition on spectators wearing buttons with the victim’s image, as wasat issue in Musladin. Justice Kennedy speculated that the Court may not have had occasion to adopt such a rule because“trial judges as a general practice already take careful measures to preserve the decorum of courtrooms” (Musladin, supra,at p. 81, Kennedy,J., concurring in judgment), precisely what Judge Thierbach said he was powerlessto do. Before the Musladin decision, Supreme Court precedents dating back nearly a century had heldthatit is a denial of due process of law when “a trial is in fact dominated by a mob,sothat the jury is intimidated and the trial judge yields, and so thatthere is an actual interference with the course of justice.” (Frank v. Mangum (1915) 237 U.S. 309, 335 [35 S.Ct. 582]; also see Moore v. Dempsey (1923) 261 U.S. 86, 91 [43 S.Ct. 265]; United States v. Rutherford (9"Cir. 2004) 371 F.3d 634 (conduct of federal agents whosat directly behind prosecution may haveintimidated jury); Woodsv. Dugger (1 1" Cir. 1991) 923 F.2d 1454 (large numberof uniformed spectators in courtroom, combined with pretrial publicity, deprived petitioner of a fair trial); Norris v. Risley (9"Cir. 1990) 918 F.2d 828 (presence of three womeninside and outside the courtroom wearing "WAR" (Women Against Rape) buttons apparentto at least three jurors People v. Woodruff, $115378 109 Appellant’s Opening Brief was so inherently prejudicial that it created an unacceptable threat to defendant's right to a fair trial).) The Supreme Court’s precedents, Justice Kennedysaid, required a trial court “to order a new trial when a defendant showshis conviction has been obtainedin a trial tainted by an atmosphere of coercion orintimidation similar to that documented in the foregoing cases.” (Carey v. Musladin, supra, 549 U.S.at p. 80, Kennedy,J., concurring in judgment.) The SupremeCourthad previously held that the presence of four uniformed state troopers in the first row of spectators did not present an unacceptable risk of prejudice. (Holbrook v. Flynn (1986) 475 U.S. 560 [106 S.Ct. 1340].) Nevertheless, “[w]e do not minimize the threat that a roomful of uniformed and armed policemen mightpose to a defendant's chancesof receiving a fair trial.” (/d., at pp. 570-571.) Mr. Woodruff’s chance of receiving a fair trial was severely diminished by the intimidating presence of “a numberofofficers” in uniform, all of whom wore blue wristbands in support of the shooting victim, a fellow officer, while among their ranks at least one formerofficer made a hand gesture suggesting he would shoot the defendant. The officers’ behavior, and the trial judge’s refusal to controlit, interfered with the course of justice and denied Mr. Woodruffhis rights to a fair trial, the heightened reliability of guilt and penalty determinations required in death-penalty cases, and due process of law underthe Sixth, People v. Woodruff, S115378 110 Appellant’s Opening Brief Eighth and Fourteenth amendments to the United States Constitution and Article I, sections 7, 15, 17 and 29 of the California Constitution. The proper remedyfor such trial tainted by intimidation is a reversal of Mr. Woodruff’s convictions and a newtrial in which intimidation is not allowed. People v. Woodruff, S115378 Appellant’s Opening Brief111 CLAIM B2: Trial judge created “indelible picture” when he allowed jurors to see photographsof defendant in orangejail jumpsuit. Thetrial judge permitted the jurors, over defense objection, to view photographstaken on the day of Mr. Woodruff’s arrest in which he wore an orange jail jumpsuit. The judge’s abuse of discretion denied Mr. Woodruff his state and federal constitutional rights to the presumption of innocence, a fair trial, the heightenedreliability of guilt and penalty verdicts required in death-penalty cases, and due process of law. Facts During the testimony of Riverside police officer Lavall Nelson, the prosecutor handed Exhibit 28, a photograph,to the witness and askedif that was howthe defendant looked when he wasarrested. Defense counsel objected. Thetrial judge overruled the objection, saying the issue had been litigated at a pretrial hearing. (RT 10:2236.) Indeed, defense counsel had movedin limine to exclude Exhibits 27 and 28, two photographstaken on the day of Mr. Woodruff’s arrest that showedthe defendant in an orange jumpsuit. Defense counsel had challengedthe use of the photographs on groundsof relevance andthat they were more prejudicial than probative under California Evidence Code section 352. (RT 4:1207.) However, the trial judge said he saw nothing prejudicial about either photograph and said he would not exclude the People v. Woodruff, $115378 112 Appellant’s Opening Brief photographsif they were offered as evidence by the prosecution. (RT 4:1209.) Discussion The admission of Exhibits 27 and 28attrial harmed Mr. Woodruff by etching in the jurors’ minds what the Ninth United States Circuit Court of Appeals has characterized as “the indelible picture of the defendant dressed in prison garb.” (Felts v. Estelle (9"Cir. 1989) 875 F.2d 785, 786.) Whena defendantis forced to wear prison garbattrial, jurors “may speculate that the accused's pretrial incarceration, although often the result of his inability to raise bail, is explained by the fact he poses a dangerto the community or has a prior criminal record.” (Estelle v. Williams (1976) 425 U.S. 501, 518 [96 S.Ct. 1691, 48 L.Ed.2d 126] (Brennan J., dissenting).) This image may create a subtle prejudice undermining the presumption of innocence.(/d. at pp. 504-05.) The “‘constant reminder of the accused's condition implicit in such distinctive, identifiable attire may affect a juror's judgment”andnostate policy is served by compelling a defendant to dress in prison clothing before the jury. (/d., quoted in United Statesv. Washington (9"Cir. 2006) 462 F.3d 1124, 1136.) A criminal defendant has the right to appear before the jury in civilian clothes instead of jail garb, and violation of this right is of federal constitutional dimensionsthat cannotbe held harmless unless the reviewing court determinesthat it was harmless beyond a reasonable doubt. People v. Woodruff, $115378 Appellant’s Opening Brief1] (Chapman v. California (1967) 386 U.S. 18 [87 S.Ct. 824, 17 L.Ed.2d 705]; In re Avena (1996) 12 Cal.4" 694, 731[49 Cal.Rptr.2d 413, 909 P.2d 1017].) Thetrial judge’s indifference to the prejudice resulting from the jurors’ exposure to the “indelible picture” of Mr. Woodruff in prison garb created a proceeding that did not meet the requirementof heightened reliability of guilt and penalty determinationsin a death-penalty case. (Woodsonv. North Carolina, supra, 428 U.S. at p. 305.) At Mr. Woodruff’s trial, jurors regularly saw the defendantin court dressed in a suit and tie. (RT 8:1819; 10:2195; 26:5380, 5411; 27:5565.) Nonetheless, during the testimony of Officer Nelson andin deliberations, the jurors were exposed to Exhibits 27 and 28, both of which showed the defendantin an orange jumpsuit. Ostensibly, the prosecutor introduced the photograph to show “the way the defendant looked on January 13, 2001 at the time, or about the time, of his arrest.” Officer Nelson confirmed that “Twl]ith the exception of the jumpsuit,” it was the way Mr. Woodruff appeared when he wasarrested. (RT 10:2236.) Hence, a photograph of Mr. Woodruff in a jumpsuit was not relevant to show whatthe prosecutor purportedly intended to show. Instead, the prosecutor’s real reason for showing the photograph to the jurors wasto plant in their minds the irrelevant and highly prejudicial image of Mr. Woodruff in the orange jumpsuit, which he wasnot wearingat or about the timeofhisarrest. People v. Woodruff, S115378 114 Appellant’s Opening Brief The judge’s decision to admit Exhibits 27 and 28, over defense objection, created for the jurors an “indelible picture,” which denied Mr. Woodruff his rights to the presumption of innocence,a fairtrial, the heightenedreliability of guilt and penalty verdicts required in death-penalty cases, and due process of law underthe Fifth, Sixth,Eighth and Fourteenth Amendments to the United States Constitution and Article I, sections 7, 15, 17 and 29 of the California Constitution. Consequently, Mr. Woodruff’s convictions should be overturned. People v. Woodruff, S115378 115 Appellant’s Opening Brief CLAIM B3: Prosecution witness improperly mentioned defendant’s arrest record without being asked. During defense cross-examination of Riverside homicidedetective Keith Kensinger in the guilt phase oftrial, the prosecution witness blurted out a reference to the defendant’s “previous arrest record,” even though no question had beenasked aboutit. This violated Mr. Woodruff’s state and federal rights to a fair trial, the heightened reliability of guilt and penalty verdicts required in death-penalty cases, and due process of law. a. Facts Detective Kensingertestified that he was assigned on January 13, 2001, to lead the investigation of the shooting death of Detective Charles Douglas Jacobs. (RT 7:1778.) During cross-examination of Kensingerin the guilt phase of Mr. Woodruff’s trial on January 6, 2003, defense counsel asked Kensinger if, when Kensinger interviewed the defendant’s brother Claude Carr on the day of the shooting, Kensinger thoughtit relevantthat Carr mentionedthat his brother was “a family man.” Kensingerreplied: “He simply states he’s a family man. He hasn’t done anything wrong. Are we were[sic] talking about what he waslike in the past and his previous arrest record?” (RT 13:2950.) Rather than object to Kensinger’s response, defense counsel said, “You knowthe rules,” and then, “You crossed the line here a little bit,” People v. Woodruff, $115378 116 Appellant’s Opening Brief which prompted the prosecutor to object. The objection was sustained. (Ibid.) Discussion Not only was Detective Kensinger’s answer nonresponsive to defense counsel’s question,it was prejudicial to the defense, leaving the impression with the jurors that the defendant had a criminal record, when, in fact, the defendant had never been convicted of a felony. Evenif the defendanthad had a record of previous felony convictions, such evidence would have been inadmissible under Evidence Codesection 1101 to prove his conduct on a specific occasion, until and unlesshetestified. The United States Supreme Court has held that testimony such as Kensinger’s violates a defendant’s rightto due process. “[O]ne accused of a crimeis entitled to have his guilt or innocence determinedsolely on the basis of the evidence introducedat trial, and not on groundsofofficial suspicion, indictment, continued custody, or other circumstances not adduced asproofat trial. ... [T]he Due Process Clause of the Fourteenth Amendmentmustbe held to safeguard ‘against dilution ofthe principle that guilt is to be established by probative evidence and beyond a reasonable doubt.’” (Taylor v. Kentucky (1978) 436 U.S. 478, 485-486 [98 S.Ct. 1930, 56 L.Ed.2d 468], quoting Estelle v. Williams, supra, 425 U.S.at p. 503. This Court has repeatedly held that the “admission of any evidence that involves crimesother than those for which a defendantis beingtried People v. Woodruff, 5115378 117 Appellant’s Opening Brief has a ‘highly inflammatory and prejudicial effect’ on the trier of the fact.” (People v. Thompson (1980) 27 Cal.3d 303, 314 [165 Cal.Rptr. 289].) ‘[E]vidence of other crimes is inadmissible as regards guilt when it is offered solely to prove criminal disposition because the probative value of such evidenceas to the crime charged is outweighedbyits prejudicial effect.” (People v. Durham (1969) 70 Cal.2d 171, 186-187 [74 Cal.Rptr. 262, 449 P.2d 198].) ‘“[E]vidence of other criminal acts havinglittle bearing on the question whether defendant actually committed the crime charged would assume undueproportions and unnecessarily prejudice defendantin the mindsofthe jury.” (People v. Kelley (1967) 66 Cal.2d 232, 238-239 [57 Cal.Rptr. 363].) A “witness’s volunteered statement can also provide the basis for a finding of incurable prejudice.” (People v. Wharton (1991) 53 Cal.3d 522, 565 [280 Cal.Rptr. 631].) In general, when a defendant does not object to the misconductat trial or ask for the jury to be admonishedto disregard the impropriety, the issue is forfeited for appeal. (People v. Berryman (1993) 6 Cal.4™ 1048, 1072 [25 Cal.Rptr.2d 867, 864 P.2d 40].) However, a “defendant will be excused from the necessity of either a timely objection and/or a request for admonition if either would befutile. [Citations omitted.] In addition, failure to request the jury be admonished doesnotforfeit the issue for appeal if ‘an admonition would not have cured the harm caused by the misconduct.’” (People v. Hill (1998) 17 Cal.4™ 800, 820 [72 Cal.Rptr.2d 656, 952 P.2d People v. Woodruff, $115378 118 AppelJant’s Opening Brief 673], quoting People v. Bradford (1997) 15 Cal.4" 1229, 1333 [65 Cal.Rptr.2d 145, 939 P.2d 259], quoting People v. Price (1991) 1 Cal.4™ 324, 447 [3 Cal.Rptr.2d 106, 821 P.2d 610].) The prejudice to Mr. Woodruff was heightened by the factthat the witness giving the improper testimony was a high-ranking police officer “whosetestimony waslikely accorded a high degree of credibility by the jury. [Citation omitted.] Police officers, by virtue of their positions, rightfully bring with their testimony an air of authority and legitimacy." (Stribbling v. State (Fla. App. 2001) 778 So.2d 452, 455.) The United States Supreme Court also has found merit in the argument that improper testimony by “police officers is likely to be more damaging to constitutional rights than such testimony by ordinary citizens, because the policemanin uniform carries special credibility in the eyes of jurors.” (Briscoe v. LaHue (1983) 460 U.S. 325, 342 [103 S.Ct. 1108].) In Mr. Woodruff’s case, no objection, motion to strike or admonition to the jury could have cured the prejudicial effect of Detective Kensinger’s gratuitous comment. The jury could not unlearn the detective’s suggestion that Mr. Woodruff had an arrest record. Indeed, the detective’s comment wasconsistent with a prosecution strategy of portraying Mr. Woodruff in the worst possible light — not as the family man who wasbaby-sitting his daughter on the afternoon when Officer Bakerfirst appearedathis front door, but as an outlaw whodid not follow society’s rules. People v. Woodruff, 8115378 119 Appellant’s Opening Brief The detective’s suggestion that Mr. Woodruff had an arrest record undermined the defense strategy of portraying Mr. Woodruff as a family man, concerned about his mother’s well being, whocarried a gun out onto the porch because he was alarmed by the waytwopolice officers were treating his mother. To insinuate that Mr. Woodruff had a criminal record, to further prejudice the jury against him, was to deny Mr. Woodruffhis rights to fair trial, to the heightenedreliability of guilt and penalty verdicts required in death-penalty cases, and due process of law, under the Sixth, Eighth and Fourteenth Amendmentsto the United States Constitution, and Article 1, sections 7, 15, 24 and 29 of the California Constitution. This Court should overturn Mr. Woodruff’s convictions and order a newtrial. People v. Woodruff, S115378 Appellant’s Opening Brief12 CLAIM B4: Prosecutor engaged in prejudicial misconductin questioning Mr. Woodruff’s mother about convictions from sameincident. Ondirect examination, the prosecutor improperly questioned Mr. Woodruff’s mother about her misdemeanorconvictions from the events that resulted in the charges against Mr. Woodruff. The harm was exacerbated whenthetrial judge allowed the prosecutor to probe further into the fact that the witness had gonetotrial regarding those incidents. Mr. Woodruff was harmed further by defense counsel’s decision not to seek a mistrial. As a result of the prosecutor’s misconduct, the trial judge’s abuse of discretion and defense counsel’s ineffective assistance, Mr. Woodruff was denied his state and federal constitutionalrights to a fair trial, effective assistance of counsel, heightenedreliability of guilt and penalty verdicts in a death-penalty proceeding, and due processoflaw. Facts Mr. Woodruff’s mother, Parthenia Carr, wastried in Riverside County Superior Court in September 2001 on misdemeanorcharges of disturbing the peace andresisting arrest, as a result of the events that led to Detective Jacobs’ death. Mark Blankenship represented Mrs. Carrattrial. She was convicted of both charges. (RT A:38; RT 10:2251-2252, 2286; RT 11:2411; RT 12:2833-2834.) People v. Woodruff, 115378 121 Appellant’s Opening Brief WhenMrs.Carr testified for the prosecution at Mr. Woodruff’s trial, prosecutor Michael Soccio askedfirst about her relationship with Mr. Woodruff and defense counsel Blankenship. Then, over defense objection, the prosecutor began asking Mrs. Carr abouthertrial: DA: DEFENSE: JUDGE: DEFENSE: JUDGE: DA: DEFENSE: JUDGE: WITNESS: DA: WITNESS: (RT 10:2252.) In fact, you were convicted of disturbing the peace andresisting a police officer in the performanceofhis duties, weren't you. Objection — motionto strike. The objection is sustained. I'd like counsel to be admonishedto notbringit up. I sustained your objection. Did you go througha trial regarding the events that occurred at your house on January 13th, 2001? Objection — 352. Overruled. Yes. Did youtestify at thattrial? Yes. After the lunch recess, defense counsel asked thetrial judge out of the presence of the jury if the judge had any ideas “how weshould deal with the fact how [the prosecutor] mentioned the convictions of Ms. Carr in front of the jury, when I think that he probably knowsthat you really can't do that. ... Seems like we have a bell that we have to unring.” (RT 10:2284.) People v. Woodruff, S115378 122 Appellant’s Opening Brief Soccio argued that he believed he could ask abouttheresisting arrest conviction because “it involves moral turpitude,” although he concededthat he had no authority for that position. (/bid.) Thetrial judge said, “[W]hen youtalk about misdemeanors for impeachmentpurposes, we're talking about the conductnot the conviction. The conviction is hearsay. ... But the conduct, as long as it involves moral turpitude,is fair game.” (RT 10:2285.) Thetrial judge said disturbing the peace “under no circumstances”is a crime of moralturpitude. The judge said that unless the prosecutor could find authority that resisting arrest was a crime of moral turpitude, he would be willing to instruct the jury to disregard the prosecutor’s question about Mrs. Carr’s convictions. (RT 10:2286-2287.) Blankenship said “it feels like prosecutorial misconduct to mention convictions ... And to just thrust it into the center in front of jury in this very serious case — with all the trial experience that he has — is very serious, in my opinion,and it showsa lot of intent, because of his background and experience andthe effort to say that, Oh, well, I think that this just goes to bias.” Blankenship addedthat “there's a side of me that wants to ask for a mistrial,” but he did not want to do that “because I think we're doing great here.” (RT 10:2285.) People v. Woodruff, 8115378 123 Appellant’s Opening Brief Discussion The prejudice from the prosecutor’s question was “a bell that we have to unring,” in the words of defense counsel. No corrective instruction could have undone the damage to Mr. Woodruff from the prosecutor’ s question. To “unring” the bell would have requiredthetrial judge to repeat the question, which would have drawnattention to it — effectively ringingit again — and would have exacerbated the harm to Mr. Woodruff. Furthermore, by allowing the prosecutor to follow up with another question about Mrs. Carr’s trial, the judge allowed the jurors to infer the truth of the matter asserted in the question itself — that Mrs. Carr had been convicted of criminal charges resulting from the same eventsthat led to charges against Mr. Woodruff. Having learned that prejudicial fact, the jurors could not unlearnit, nor fail to conclude that if the mother was guilty of a crime, so was the son. This Court has held that in spite of California voters’ approvalin 1982 of changes to California Constitution Article 1, section 28, subsection (d), “the fact of conviction of a misdemeanor remains inadmissible under traditional hearsay rules whenoffered to prove that the witness committed misconduct bearing onhis or her truthfulness.” (People v. Wheeler (1992) 4 Cal.4" 284, 288 [14 Cal.Rptr.2d 418, 841 P.2d 938]; see People v. Lopez (2005) 129 Cal.App.4™ 1508, 1522 [29 Cal.Rptr.3d 586].) In Wheeler, this Court declined to create a hearsay exception for misdemeanorconvictions, People v. Woodruff, S115378 124 Appellant’s Opening Brief concluding, “evidence of a misdemeanorconviction, whether documentary or testimonial[,] is inadmissible hearsay when offered to impeach a _ witness’s credibility.” (Wheeler, 4 Cal.4"at p. 300.) Even though such evidence regarding Mrs. Carr’s convictions might have been relevant, under Evidence Codesection 210, nonetheless the potential for prejudice far outweighed any possible probative value, under Evidence Code section 352. A trial court should, andin this case did, “consider with particular care whether the admission of such evidence might involve undue time, confusion, or prejudice which outweighsits probative value.” (Wheeler, 4 Cal.4"at pp. 296-297.) Thetrial court ruled that evidence of Mrs. Carr’s misdemeanor convictions was inadmissible hearsay that did not involve moral turpitude. (RT 10:2285.) In Wheeler, this Court declined to overturn the appellant’ s conviction, finding that the claim had been waived by defense counsel’s failure to object on that specific ground. (Wheeler, 4 Cal.4"at p. 300.) Here, however, Mr. Woodruff’s counsel did object to the prosecutor’s inquiry in Mrs. Carr’s conviction, and sought, to no avail, to have the prosecutor admonishedto avoid that line of inquiry as being more prejudicial than probative, under Evidence Codesection 352. Nevertheless, the jury did learn of Mrs. Carr’s convictions. The harm to Mr. Woodruff is not just in the improper impeachmentof a witness, but more importantly that the jury’s knowledge of those People v. Woodruff, 8115378 Appellant’s Opening Brief1 P' convictions wasdirectly prejudicial to Mr. Woodruff’s case, as his mother’s convictions involved the same eventsthat led to the charges against Mr. Woodruff. The harm was donebythe prosecutor’s leading question, which implied its own answer. Defense counsel wascorrect in his analysis that the bell could not be unrung. Prosecutorial misconduct harmed the defendant,thetrial judge failed to minimize the harm by declining to admonish the prosecutoror limit his questioning on the subject, and defense counsel provided ineffective assistance in failing to move for a mistrial, under the mistaken belief that the trial was going well. To the contrary, such a proceeding does not meet the requirement of heightenedreliability of guilt and penalty determinations in a death-penalty case. (Woodsonv. North Carolina, supra, 428 U.S. at p. 305.) As a result of these errors of commission and omission, Mr. Woodruff was denied his constitutional rights to a fair trial, effective assistance of counsel, heightenedreliability of guilt and penalty verdicts in a death-penalty case, and due process of law under the Sixth, Eighth and Fourteenth Amendments to the United States Constitution and Article 1, sections 7, 15, 17, 24 and 29 of the California Constitution. Mr. Woodruff’s convictions should be overturned. He should be granted a newtrial. People v. Woodruff, 8115378 126 Appellant’s Opening Brief CLAIM BS: Testimonyof prosecution’s lead investigator was inadmissible andhighly prejudicial. The adversarial process broke downin the guilt phase of Mr. Woodruff’s trial when defense counsel Mark Blankenshipsolicited inadmissible and prejudicial testimony on cross-examination of the prosecution’s lead investigator that the investigator believed Mr. Woodruff was guilty and the reasonsforthat belief. The prejudice to Mr. Woodruff was exacerbated when prosecutor Michael Soccio took advantage of defense counsel’s incompetence and followed up on redirect examination, without objection, with improper questions designedto link the investigator’s opinion with other testimonyat trial that supported the opinion. The harm to Mr. Woodruff was further exacerbated by thetrial judge’s failure to interveneto halt the prejudicial questioning, bythetrial judge’s solicitation of a waiver from Mr. Woodruffof his constitutional right to effective assistance of counsel after the prejudicial testimony concluded, and by the judge’s subsequent decision to allow the prosecutor to elicit hearsay testimony about Mr. Woodruff’s criminal history from another witness because “the dooris open.” Asa consequence of this breakdownin the adversarial process, Mr. Woodruff was deniedhis state and federal constitutional rights to a fair People v. Woodruff, 8115378 127 Appellant’s Opening Brief trial, to the assistance of counsel, to due process of law and,ultimately, to the heightenedreliability necessary in a death-penalty case. Facts Thetrial prosecutor called his lead investigator, Martin Silva, to testify in the guilt phase of Mr. Woodruff’s trial on January 9, 2003, about the investigator’s supervision of the removal of a section of exterior wood siding from the north wall of the shooting scene 14 monthsafter the shooting. (RT 16:3549-3557.) Defense counsel questioned Silva on cross-examination and recross examination about Silva’s qualifications, about the process of removing the section of wall, aboutthe trajectory of a bullet that passed through the wall, about an X-ray that revealed the presence of the bullet within the wall, and about a forensic technician’s extraction of the bullet from the wall. (RT 16:3557-3581, 3586-3589.) On further recross examination, defense counsel asked for the basis of Silva’s opinion that the bullet that killed Detective Jacobs did not ricochet. Silva replied that his conclusion was based on “just the physical evidence andthe facts.” (RT 16:3590.) Defense counsel persisted: Q. You believe, with everything that you are that Mr. Woodruff fired a bullet that didn't ricochet that hit Mr. Jacobs, don't you? A. Yes,Sir. Q. Now,but whatis the factual basis for your belief? A Just the obvious physical evidence andthetotality of the circumstances. Both circumstances of People v. Woodruff, 115378 128 Appellant’s Opening Brief circumstantial evidence, physical evidence, statements by the defendant, statements by the witnesses, the fact that we founda projectile inside Doug,the fact that it was matched upto the Lorcin pistol that was used by Mr. Woodruff, and, I mean, I could go on. There's just the totality of the investigation without a doubt appears to show thatthat the projectile inside Doug wasfired into his head unobstructed. (RT 16:3591.) With defense counsel having opened the door, the prosecution walked through it. On redirect examination, the prosecutorelicited from Silva, without defense objection, the bases for Silva’s opinion that Mr. Woodruff was guilty of murder: Q. Q P Q O Q O O P Mr.Silva, the day you gotthe call, you didn't have an opinion one wayorthe other whether the defendant was guilty, did you? No,sir. After you listened — Did youlisten to his interview with Detective Kensinger? Did you monitorthat interview? Yes,sir. And as he talked about going in and getting a gun, loading it, waiting, coming out on the porch, going back and getting the gun, and then shooting and killing the officer, did you think at that pointthat he did it? Yes,sir. Andas the evidence began to develop over the course of the next year, did some physical evidence come about to also reaffirm your belief? You were asked your opinion today? Yes,sir. What kinds of things addedto the defendant's own admission that he had donethis? Well, the big one wasthe fact that the Department of Justice determined thatthe projectile inside the victim was an exact match with moralcertainty to that People v. Woodruff, 8115378 Appellant’s Opening Brief129 particular gun found inside of Mr. Woodruff's house, which was the 9mm Lorcin. Q. Also, did you have occasionto listen or talk to Mark Delgado when he described watching the defendant shoot the gun? Yes,Sir. . Anddid you talk to Holly Menzies? Yes,sir. Did those things play any part in your belief and opinion that this defendant is guilty of murder? Absolutely. Andhaving investigated six to 700 murdersthat, since you were asked, do you have any doubtthat the defendant's guilty? A. Absolutely not. O P O F O e (RT 16:3593-3595.) Mr. Woodruff’s defense counsel returned to the same theme on further recross examination of Silva: Q. Now, you madea statement, as part of your indication, that Mr. Woodruffis guilty of murder beyond a doubt, talked about the Departmentof Justice, said the bullet is an exact match to a moral certainty. Do you remembersaying that? A. Yes,sir. Ok OK Did you bring any exculpatory evidence forward, other than the evidence you said you're relying upon, in order to come up with your conclusion that Mr. Woodruff is guilty of murder beyond a doubt? A. I have found no exculpatory evidencein this case. ok ok Ok Now,about how long did it take for you to cometo the conclusion that Mr. Woodruff... is guilty of murder? A. I believe that by the time — Pretty much bythe time I left that night, which would have been now the 14", ] was pretty much convinced that — In fact, I was convincedthat he wasthe shooter that killed Doug Jacobs. People v. Woodruff, 8115378 130 Appellant’s Opening Brief Q. Andthe basis for that belief — Andthat is the belief that has carried you throughall the way to today and enables you to sit on the stand say what you just said upon the direct examination of Mr. Soccio, right? A. Well, I found nothing contrary to the fact, so, yeah, that's been mybelief from the very beginning after seeing the evidence andlistening to the evidence. (RT 16:3595-3599.) At the conclusion of defense counsel’s second recross examination of Silva, the prosecutor said he needed “‘to reserve on this witness to take a matter up with the Court.” (RT 16:3603.) The prosecutor then called an evidence technicianto testify briefly about the chain of custody of the wall section that the prosecution had removed from the exterior wall of the Woodruff/Carr residence. (RT 16:3603-3610.) Following the technician’s testimony,the trial judge excused the jurors for the weekend and addressed Mr. Woodruffdirectly: Mr. Woodruff, I want you to listen to me very carefully. Iam deeply, deeply troubled by what occurred here overthe last half an hour during the cross-examination, redirect and recross of Mr. Silva. During your counselor’s cross-examination and recross-examination of Mr. Silva, he attempted successfully, in my opinion, to show that Mr. Silva had a bias in favor of the prosecution and against you. But in so doing,I will characterize this as inadvertent, I believe your case was prejudiced extremely by Mr. Silva being asked by your counsel and allowed to answer without objection as to his opinion as to your guilt. And in so doing, Mr. Silva not only expressed an opinion butset forth numerousreasonsto support that opinion,virtually all of which were inadmissible hearsay. Nonetheless, he was allowed to express that opinion repeatedly in front of the jury. People v. Woodruff, 8115378 Appellant’s Opening Brief131 Now, your attorney may well be able to argue, and maybesuccessfully, that such testimony showsa bias on behalf of Mr. Silva, but in my opinion someone who has testified as he does about his experience in investigating some six to 700 homicides, that background alonecarries a certain amount of automatic credibility when thinking in the minds of ordinary citizens whoaresitting as jurors. And to allow him, with that background,or, for that matter, any witness to express an opinionasto the ultimate question the jury must decide, that is, whether you’re guilty or not guilty,is extremely prejudicial to your case, in my opinion. Now havingsaid that, do you understand whatI’ ve just told you? (RT 16:3610-3611.) Mr. Woodruff said he did not know whathe could do aboutit. (RT 16:3611.) The judge said he wanted to know if Mr. Woodruff understood. Not really, Mr. Woodruff said. The judge explained that Silva was an experienced homicide investigator. ““And whenhesat up here andtold the jury that he had absolutely no doubt you were guilty of murder ... I’m telling you, in my opinion as a neutral observerhere, I think that prejudiced your case.” The judge asked if Mr. Woodruff understood. (RT 16:3612.) Mr. Woodruff said the judge felt what Silva had said had helped him. (RT 16:3612-3613.) No, the judge said, it hurts him. “Oh,it hurts me?” The judge asked: “Well, I’m going to ask you, based on my opinion that that hurt your case, prejudiced your case, do youstill wish to continue with this trial with Mr. Blankenship representing you.” Mr. Woodruff said he wanted to get it over with — he had been through enough. (RT 16:3613.) The judge asked again if Mr. Woodruff wanted to continue withthetrial People v. Woodruff, S115378 132 Appellant’s Opening Brief and have Blankenship represent him. Mr. Woodruff said yes. (RT 16:3614.) The judge said he believed Mr. Woodruff had given an appropriate waiverof ineffective assistance. The judge concluded that Mr. Woodruff understood the issues the judge hadraised that day and previously. The judge said he believed the waiver and Mr. Woodruff’s desire to continue with Blankenship werevalid. (RT 16:3618.) Nonetheless, the judge said he recognized that “what you have here is an ineffective performance of judge. ... I should havecutit off and I didn't. But it may well be that some higher court will review this some day. I don't know. Butit's an issue that came up. It concerns me.” (RT 16:3620- 3621.) Theissue of Silva’s testimony resurfaced nearly two weekslater, during the prosecutor’s cross-examination of defense expert Curtis Booraem on January 22, 2003. The prosecutor asked Booraem,a clinical psychologist, whether the basis of his opinion that Mr. Woodruff was mentally retarded includeda lack of criminal history. (RT 22:4664.) Defense counsel objected that the answer the prosecutor sought would be more prejudicial than probative. The judge denied the objection. (RT 22:4665.) Booraemtestified that he was aware of “‘some scrapes with the law.” Whenthe prosecutor then asked what Booraem was awareof, defense counsel objected again. The judge overruled the objection, saying People v. Woodruff, S115378 Appellant’s Opening BriefI pening the “door is open” because the information the question sought had been “brought out by the defense in cross-examination of an earlier witness,” a reference to Silva’s testimony. (RT 22:4667.) Discussion a. Assistance ofcounsel The United States Supreme Court has “long recognized ... that the Constitution guarantees criminal defendants ... a fair trial and a competent attorney.” (Engle v. Isaac (1982) 456 U.S. 107, 134 [102 S.Ct. 1558, 71 L.Ed.2d 783].) In a criminaltrial, the Sixth Amendment“requires not merely the provision of counsel to the accused, but ‘Assistance,’ which is to be ‘for his defence.’ Thus, ‘the core purpose of the counsel guarantee was to assure “‘Assistance” at trial, when the accused was confronted with both the intricacies of the law and the advocacy ofthe public prosecutor.’ [Citation omitted.] If no actual ‘Assistance’ ‘for’ the accused’s ‘defence’is provided, then the constitutional guarantee has been violated.” (United States v. Cronic, supra, 466 U.S. at p. 654, quoting United States v. Ash (1973) 413 U.S. 300, 309 [93 S.Ct. 2568, 37 L.Ed.2d 619].) “[I]f the right to counsel guaranteed by the Constitution is to serve its purpose, defendants cannotbeleft to the mercies of incompetent counsel, and ... judges should strive to maintain proper standards of performanceby attorneys who are | representing defendants in criminal casesin their courts.” (McMannv. Richardson, supra, 397 U.S. at p. 771.) People v. Woodruff, 8115378 134 Appellant’s Opening Brief Mr. Woodruff wasrepresentedattrial by an attorney who had never tried a murdercase, let alone a death-penalty case. Additionally, three months before volunteering to represent Mr. Woodruff pro bono, defense counsel had been readmitted to practice on five-year probation after serving a State Bar suspension for incompetence. (RT A:33; RT 15:3299.) Although defense counsel deluded himself into thinking his questioning of Silva had been “very cunning andbrilliant” (RT 16:3616) and “like scoring a touchdownafter an interception on behalf of Mr. Woodruff’ (RT 16:3620), the reality is that defense counsel had abandonedhisclient’s interest for the sake of his own egofulfillmentin his attempts to embarrass virtually every prosecution witness, regardless of the effect on his client’s case. The question is not merely oneofineffective assistance of counsel, whether defense counsel’s cross-examination of Silva or subsequentfailure to object to the prosecution’s redirect examination of Silvafell “within the wide range of reasonable professional assistance.” (Strickland v. Washington, supra, 466 U.S. at p. 689.) Instead, the question here is more fundamental — whether during the testimonyof the prosecution investigator Mr. Woodruff had anyassistanceatall. “That a person who happensto be a lawyeris presentattrial alongside the accused... is not enoughto satisfy the constitutional command. The Sixth Amendmentrecognizes the right to the assistance of counsel becauseit envisions counsel's playing rolethatis People v. Woodruff, 8115378 135 Appellant’s Opening Brief critical to the ability of the adversarial system to producejust results. An accusedis entitled to be assisted by an attorney, whetherretained or appointed, whoplays the role necessary to ensurethat the trial is fair.” (Strickland, at p. 685.) Here, defense counsel’s questioning of the prosecution investigator, and defense counsel’s failure to object to the prosecutor’s subsequent objectionable redirect examination, wasso clearly detrimentalto the defendant’s interest that the trial judge almost immediately offered the defendantthe option of a mistrial and a newtrial with different counsel. Thetrial judge belatedly realized, and admitted on the record, that he should have stopped the prejudicial questioning. The United States Supreme Court advises that even “the intelligent and educated layman ... requires the guiding hand of counselat every step in the proceedings against him. Withoutit, though he be notguilty, he faces the danger of conviction because he does not know howto establish his innocence. If that be true of men of intelligence, how much moretrueis it of the ignorantandilliterate, or those of feeble intellect.” (United States v. Cronic, supra, 466 U.S.at p. 653, fn. 8, quoting Powell v. Alabama (1932) 287 U.S. 45, 68-69 [53 S.Ct. 55, 77 L.Ed. 158].) Here, Mr. Woodruff was neither intelligent nor educated. Testimony indicated that he had a very low IQ anda third-grade reading level. Indeed, he wasof such “feeble intellect” that he could not appreciate the harm that People v. Woodruff, 8115378 136 Appellant’s Opening Brief had been doneto his case even after the judge tried to explain it to him: “Oh,it hurts me?” (RT 16:3613.) Yes, it hurt him. Counsel’s cross-examination of Silva and the subsequentredirect aboutthe basis for Silva’s opinions “severely prejudiced” Mr. Woodruff’s case, as the judge advised him, thoughin language beyond Mr. Woodruff’s comprehension. “[I]f counsel entirely fails to subject the prosecution’s case to meaningful adversarial testing, then there has been a denial of Sixth Amendmentrights that makes the adversary processitself presumptively unreliable.” (United States v. Cronic, supra, 466 U.S. at p. 658.) Rather than subjecting Silva’s testimony to meaningful adversarialtesting, defense counsel allowed the prosecution witness to express his inadmissible and “very prejudicial” opinionthat the defendant wasguilty, supported by equally inadmissible reference to hearsay statements. Rather thanassisthis client, defense counsel aggravatedhis plight, eviscerating the adversarial process and denying Mr. Woodruffhis rights to a fair trial and assistance of counsel, to heightenedreliability of guilt and penalty verdicts in a death- penalty proceeding, and to due processof law, underthe Sixth, Eighth and Fourteenth Amendments to the United States Constitution and Article 1, sections 7, 15, 24 and 29 of the California Constitution. Mr. Woodruff’s convictions should be overturned and he should be granted a new trial with competent counsel. People v. Woodruff, $115378 137 Appellant’s Opening Brief b. Prosecutorial misconduct It is misconductfor a prosecutor to elicit inadmissible testimony intentionally. (People v. Bonin (1988) 46 Cal.3d 659, 689 [250 Cal.Rptr. 687, 758 P.2d 1217], overruled on another point by People v. Hill, supra, 17 Cal.4"at p. 823, fn. 1.) Generally a defendant may not complain of prosecutorial misconduct on appealif he failed at trial to object timely to the misconduct or to request a proper admonition. However, a defendant will be excused from the necessity of a timely objection or a request for admonition if either would befutile. (People v. Hill, supra, 17 Cal.4"at p. 820.) In the prosecutor’s deliberate elicitation of inadmissible evidence in the redirect examination of Silva, an objection to the prosecutorial misconduct would not only have been futile but impossible, given defense counsel’s abandonmentof the adversarial process. Defense counsel did not just fail to object to the misconduct, he welcomedit. Prosecutorial misconduct implicates a defendant's federal constitutionalrights if it is so egregious that it infects the trial with such unfairness as to make the conviction a denial of due process. (People v. Harris (1989) 47 Cal.3d 1047, 1084 [255 Cal.Rptr. 352, 767 P.2d 619], citing Donnelly v. DeChristoforo, supra, 416 U.S.at pp. 642-643.) People v. Woodruff, S115378 138 Appellant’s Opening Brief A prosecutor, as the United States Supreme Court famously explained in Berger v. United States, is in a peculiar and very definite sense the servant of the law, the twofold aim of whichis that guilt shall not escape or innocence suffer. He may prosecute with earnestness and vigor — indeed, he should do so. But, while he maystrike hard blows,heis notat liberty to strike foul ones. It is as muchhis duty to refrain from improper methodscalculated to produce a wrongful convictionasit is to use every legitimate meansto bring abouta just one. (Berger v. United States (1935) 295 U.S. 78, 88 [55 S.Ct. 629].) The prosecutor’s use of unfair methods, exploiting the vulnerability of an incompetent defense counsel and a defendantof feeble intellect, deprived Mr. Woodruffofhis rightsto a fair trial, heightened reliability in a death-penalty proceeding, and due process of law under the Sixth, Eighth and Fourteenth Amendments to the United States Constitution and Article I, sections 7, 15, 24 and 29 of the California Constitution. Mr. Woodruff’s convictions should be overturned. C. Judicial misconduct Asthe trial judge said to Mr. Woodruff in extracting what he perceived to be a waiverof effective assistance, Silva “not only expressed an opinion butset forth numerous reasons to supportthat opinion, virtually all of which were inadmissible hearsay.” (RT 16:3610.) Under California Evidence Code section 702, subsection (a), “the testimony of a witness concerning a particular matter is inadmissible unless People v. Woodruff, 8115378 139 Appellant’s Opening Brief he has personal knowledge of the matter.” Evidence Codesection 803 says a trial court “may, and upon objection shall, exclude testimonyin the form of an opinion that is based in whole or in significant part on matter that is not a proper basis for such an opinion.” Prosecution investigator Silva had no personal knowledgeof “the fact that we found a projectile inside Doug, the fact that it was matched up to the Lorcin pistol that was used by Mr. Woodruff’ (RT 16:3591), or of Mr. Woodruff’s interview with Detective Kensinger, or of “the fact that the Department of Justice determined that the projectile inside the victim was an exact match with moral certainty to that particular gun found inside of Mr. Woodruff's house,” or of the eyewitness accounts of prosecution witnesses Mark Delgado or Holly Menzies. (RT 16:3593-3595.) Consequently, because Silva had no personal knowledgeof any of those matters, the judge should have excludedall of Silva’s extremely prejudicial testimony under Evidence Code section 702, subsection(a). This Court has held since the early days of California statehoodthat trial judges havenotonly the right but also the duty to exclude improper testimony. “The duty of the Court is not confined to passing upon such portions of testimony as may be exceptedto, but extends to the preservation of the rights of litigants, and a proper disposition of the matters in controversy.” (Parker v. Smith (1854) 4 Cal. 105, 106.) Four decadeslater, quoting the Parker decision with approval, this Court concluded, People v. Woodruff, S115378 Appellant’s Opening Brief0 P If this is the right and duty of the court in a civil case, with muchgreater reason canit be said that in a trial for murder, in whichthe life of a defendant is involved, the court ought not to refuse to strike out testimony whichis inherently illegal and incompetent, and which, under well-settled rules of law, cannotbe received as legal proof of any fact. ... [T]he court ought not to have permitted the defendantto be placedin this position, and should have enforcedits previous rulings onits own motion. (People v. Wallace (1891) 89 Cal. 158, 166-167 [26 P. 650]; also see O'Kelley-Eccles Co. v. State (1958) 160 Cal.App.2d 60, 65 [324 P.2d 683] (Impropertestimony should be stricken or excluded upon objection or on the court's own motion).) Thetrial judge abused his discretion whenhefailed to intervene on his own motion to prevent the jury from hearing what the judge considered “extremely prejudicial” testimony. Thetrial judge’s failure to act denied Mr. Woodruffhis rights to a fair trial, heightenedreliability in a death- penalty proceeding, and due process of law underthe Sixth, Eighth and Fourteenth Amendments to the United States Constitution and ArticleI, sections 7, 15, 24 and 29 of the California Constitution. Forall of the reasonsstated in this claim, Mr. Woodruff’s convictions should be overturned and he should be granted a newtrial. People v. Woodruff, S115378 Appellant’s Opening Brief141 CLAIM B6: Prosecutor andtrial judge prejudiced defendant by repeatedly mocking defense counselin front of jury. The prosecutorandtrial judge engaged in prejudicial misconduct by mocking defense counsel Mark Blankenship in front of the jury from the beginning of Mr. Woodruff’s trial throughout the guilt phase, thus undermining any credibility defense counsel might otherwise have had with the jury. Prosecutor Michael Soccio mocked defense counsel’s physical appearance (RT 4:1132), accused defense counsel of impropriety in cross- examining a witness (RT 14:3254) and dishonesty in handling evidence (RT 15: 3355), and called defense counsel “shameful” and “despicable” in closing argument. (RT 24:5128; RT 25:5243.) Judge Christian Thierbach mocked defense counsel’s ability to make proper objections (RT 5:1422), defense counsel’s ability to ask meaningful questions (RT 14:3144; RT 18:3858-3859), defense counsel’s request for an admonition of the jury (RT 14:3186-3187), defense counsel’s objection to the trial judge’s commentto a witness (RT 21:4444), and whatthe trial judge characterized as defense counsel’s “editorializing” and “argumentative” and “irrelevant” questions in cross-examination of prosecution witnesses. (RT 23:4754-4755; RT 23:4784; RT 23:4909-49 10; RT 24:4986-4987; RT 24:4997-4998.) People v. Woodruff, S115378 142 Appellant’s Opening Brief The pattern of disparaging comments by the prosecutorandtrial judge undercut defense counsel’s credibility with the jury. As a result, Mr. Woodruff was deniedhis state and federal constitutional rights to a fair trial, effective assistance of counsel, heightenedreliability of guilt and penalty verdicts in a death-penalty trial, and due processof law. a. Prosecutorial misconduct Facts Incident 1: ‘Maybe I can get a ponytail’ Even before the jury had been empaneled, prosecutor Michael Soccio had begunridiculing defense counselin front of the jury. On the final day of jury selection, November 20, 2002, the prosecutor asked prospective juror G.M.on voir dire, “would anybody's haircut influence you in any way?” When G.M.said no, the prosecutor commented, “Maybe I can get a ponytail by the end ofthistrial.” Defense counsel Mark Blankenship, who had a ponytail, objected. The objection was sustained. (RT 4:1132.) Although the comment about counsel’s ponytail came before the jury was empaneled,all ofthe trial’s jurors were in the courtroom in position to hear it. Both sides accepted the jury within the sametrial session, a mere fourtranscript pageslater. (RT 4:1136.) Incident 2: ‘Objection — I'll askfor sanctions’ In cross-examination of Riverside police detective Ron Sanfilippo on January 7, 2003, defense counsel asked aboutefforts to retrieve bullets People v. Woodruff, S115378 Appellant’s Opening Briefg from a tree and from the groundat the shooting scene. (RT 14:3248-3254.) Blankenship askedif the investigators had looked for a bullet in the ground the same waythey looked for a bullet that was found, 14 monthsafter the shooting, in the side of the house. (RT 14:3253.) The prosecutor objected. The objection was sustained. Blankenship then asked if the same group of people looked for the bullet in the ground as had lookedfor the bullet in the side of the house. The prosecutor: “Objection — I'll ask for sanctions.” The judge told the prosecutor: “You'll not do that in front of the jury.” The judge then told defense counsel to moveonto another area, as he had made his point. (RT 14:3254.) Shortly afterward, outside the presence of the jury, the trial judge told Soccio: “I don't want to hear motions for sanctionsin front of the jury again.” (RT 14:3262.) Blankenship noted: “For the record, I thinkit's prosecutorial misconductfor the prosecutor to ask you to sanction me in front of the jury, especially given the nature of this case.” Thetrial judge did not respond directly to defense counsel’s assertion. (RT 14:3263.) Incident 3: ‘I’m sure I’ll never see it again’ Onredirect examination of Riverside police detective Ron Sanfilippo on January 8, 2003, the prosecutor asked about a photograph showing toys on the porch of the defendant’s residence. Defense counsel objected and the judge said the question was vague, as there were several photographs depicting toys. Thetrial judge suggested that the photograph People v. Woodruff, $115378 144 Appellant’s Opening Brief be placed “in front of you,” apparently meaningin front of the witness. (RT 15:3354.) The following exchange then occurred: DA: I'm sure I'll neversee it again. DEFENSE: Your Honor, motion to strike as “I'm sureI'll never see it again” comment he made. DA: I need the other one on the front porch. JUDGE: Referring to — I have II andJJ. DA: Your Honor,that's what I'm talking about, trying to find the photos. DEFENSE: Motionto strike that, as well. . JUDGE: Ladies and gentlemen, I'm gonnaask you to leave the courtroom for about five minutes. Don't stray too far. I need to have little chat with the attorneys. (RT 15: 3355.) Outof the presence ofthe jury, the judge chided both attorneys. He said he had told them both at the start of the trial that he would nottolerate talking back andforth oreditorializing, and both continued to disobey his directive. The next time it happened, the judge warned,the attorney would be sanctioned. “Now knockit off, both of you.” (/bid.) Implicit in the prosecutor’s commentthat “T’ll never see it again” was the accusation that defense counsel was hiding or misplacing evidence. The prosecutor had made the same accusation out of the presence of the jury earlier in the day. Atthat time, the prosecutor said defense counsel had removed two exhibits from court“last night.” (RT 15:3300-301.) Whendefense counsel deniedit, the prosecutorsaid, ““That’s what I was told this morning by yourinvestigator.” The prosecutorsaid it had happened “onat least two or three occasions, that I’m aware of, where People v. Woodruff, 8115378 Appellant’s Opening Brief14 g marked exhibits have left the courtroom in his possession.” (RT 15:3301.) Addressing defense counsel directly, the prosecutor said, “You took the incident logs and someother things from the courtroom.” (RT 15:3301- 3302.) The judge confirmedthat one of the clerks had alerted him that morning that “a couple of exhibits were missing.” He said in the future nobody would leave the courtroom until all exhibits were accounted for and given to the clerk. (RT 15:3302.) Incident 4: ‘Shameful’ and ‘despicable’ In closing argumentatthe guilt phase, on January 27, 2003, the prosecutor said the defendant “has cloaked himself in infirmities of people that are legitimate infirmities.” (RT 24:5127.) “Mental retardation? How shameful. ... How shameful to pretend to be a memberof their population to avoid responsibility. ... And to cloak thistrial in the Civil Rights Movementin Mississippi is despicable.” (RT 24:5128.) Incident 5: ‘Shame on them. ... Despicable.’ Three times in closing argumentin the guilt phase, defense counsel accused the prosecution of “dialing into emotions”ofits police witnesses. (RT 24:5158, 5179; RT 25:5203.) In response, the prosecutor castigated defense counsel: “[S]hame on them for making any commentaboutpolice officers who cried or were tearful about a fallen friend. Despicable. Turned on emotions? Dialed up emotions? Howinsulting.” (RT 25:5243.) People v. Woodruff, 8115378 146 Appellant’s Opening Brief Discussion State and federal courts have long recognized that while a prosecutor “may strike hard blows, he is notat liberty to strike foul ones.” (Bergerv. United States, supra, 295 U.S. at p. 88.) “A prosecutoris held to a standard higher than that imposed on other attorneys because of the unique function he or she performsin representing the interests, and in exercising the sovereign power, of the state.” (People v. Espinoza (1992) 3 Cal.4™ 806, 819-820 [12 Cal.Rptr.2d 682, 838 P.2d 204].) “A prosecutor commits misconductif he or she attacks the integrity of defense counsel, or casts aspersions on defense counsel.” (People v. Vance (2010) 188 Cal.App.4" 1182, 1200-1201 [116 Cal.Rptr.3d 98].) “An attack on the defendant's attorney can be [as] seriously prejudicial as an attack on the defendant himself, and, in view of the accepted doctrines of legal ethics and decorum [citation], it is never excusable.” (People v. Hill, supra, 17 Cal.4"at p. 832, quoting what is now 5 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) Criminal Trial, § 592, p. 847.) This Court has repeatedly held it “improper for the prosecutor‘to... portray defense counselas the villain in the case. ... Casting uncalled for aspersions on defense counsel directs attention to largely irrelevant matters and does not constitute commenton the evidence or argumentas to inferences to be drawn therefrom.’” (People v. Redd (2010) 48 Cal.4" 691, People v. Woodruff, S115378 147 Appellant’s Opening Brief 749 [108 Cal.Rptr.3d 192, 229 P.3d 101], quoting People v. Fierro (1991) 1 Cal.4" 173, 212 [3 Cal.Rptr.2d 426, 821 P.2d 1302].) In Mr. Woodruff’s trial, the prosecutor repeatedly cast aspersions on defense counsel’s appearance, demeanor, competenceandintegrity. The prosecutor mocked defense counsel’s haircut with a gratuitous, sarcastic and irrelevant commentin jury selection, “MaybeI can get a ponytail by the end ofthis trial.” (RT 4:1132.) The prosecutor respondedto a defense question of a police detective on cross-examination by demanding sanctions, an extreme and inappropriate response to a question that wasat worst repetitive and argumentative. (RT 14:3254.) And, the prosecutor respondedtothetrial judge’s suggestion that he place an evidentiary photograph in front of a witness with the insinuation that defense counsel was hiding or misplacing evidence: “I’m sure I'll neversee it again.” (RT 15: 3355.) This Court has held that generally “a defendant may not complain on appeal of prosecutorial misconductunless in a timely fashion — and on the same ground — the defendant madean assignment of misconduct and requested that the jury be admonishedto disregard the impropriety.” However, a “defendant will be excused from the necessity of either a timely objection and/or a request for admonition if either would be futile ... [or] if an admonition would not have cured the harm caused by the misconduct.” (People v. Hill, supra, 17 Cal.4"at p. 820.) People v. Woodruff, S115378 148 Appellant’s Opening Brief Defense counsel objected to the commentduring jury voir dire and the two comments that occurred during guilt-phase testimony,butthe trial judge sustained onlythe first objection, regarding the ponytail comment. Thetrial judge did not even acknowledgethe other two objections, although he did admonishthe prosecutor, out of the presence ofthejury, “I don't want to hear motions for sanctions in frontof the jury again.” (RT 14:3262.) Defense counsel did not object when the prosecutor called him “shameful” or “despicable”in closing argument. Nonetheless, such objections would have beenfutile, given the judge’s failure to admonish the jury regarding any of the prosecutor’s misconduct during witness testimony. Furthermore, the trial judge overruled all seven objections defense counsel did raise during opening and closing arguments (RT 24:5121, 5131; RT 25:5227(2), 5230, 5235, 5244), but sustainedall five prosecution objections. (RT 24:5144, 5150, 5156; RT 25:5205, 5206.) In closing argument, the prosecutor characterized the defense repeatedly as “shameful”and the defense argumentas both worthy of shameand “despicable.” (RT 24:5128; RT 25:5243.) The common definition of “shameful”is “disgraceful” and “despicable” means“so worthless or obnoxious as to rouse moral indignation.” (Merriam- Webster’s Collegiate Dictionary (11" ed. 2003).) The prosecutor at Mr. People v. Woodruff, 8115378 Appellant’s Opening Brief149 Woodruff’s trial wastelling the jury that defense counsel was himself the lowest of the low, beneath contempt. This Court has repeatedly condemnedsuch argument,ruling that counsel maynot “make personally insulting or derogatory remarks directed at opposing counsel or impugn counsel's motives or character.” (Cassim v. Allstate Ins. Co. (1994) 33 Cal.4" 780, 796 [16 Cal.Rptr.3d 374, 94 P.3d 513], citing Garden Grove School Dist. v. Hendler (1965) 63 Cal.2d 141, 143 [45 Cal.Rptr. 313, 403 P.2d 721].) “A prosecutor's rude and intemperate behavior violates the federal Constitution when it comprises a pattern of conduct ‘so egregiousthatit infects the trial with such unfairness 909as to make the conviction a denial of due process.’” (People v. Gionis (1995) 9 Cal.4™ 1196, 1215 [40 Cal.Rptr.2d 456, 892 P.2d 1199], citing People v. Harris, supra, 47 Cal.3d at p. 1084.) (See Donnelly v. DeChristoforo, supra, 416 U.S.at p. 643; United States v. Rodrigues co Cir. 1998) 159 F.3d 439, 451 (“[W]hen no rebuke of such false accusations is made by the court, when no responseis allowed the vilified lawyer, when no curative instruction is given, the jurors must necessarily think that the false accusations had a basis in fact. Thetrial processis distorted.”’).) At Mr. Woodruff’s trial, the prosecutor’s repeated disparaging comments about defense counsel represented a pattern of egregious conduct. The prejudice to Mr. Woodruff cannot be clearer: The prosecutor invited the jury to condemn the defense counsel as deserving of moral People v. Woodruff, 8115378 150 Appellant’s Opening Brief indignation. That moral indignation wasvisited on the client. It denied Mr. Woodruff a fairtrial, assistance of counsel, the heightenedreliability of guilt and penalty verdicts required in a death-penalty case, and due process of law under the Sixth, Eighth and Fourteenth Amendmentsto the United States Constitution and Article 1, sections 7, 15, 17 and 29 of the California Constitution. b. Judicial misconduct Facts Incident 1: ‘haven’t heard a legitimate one yet’ Onthefirst day of testimonyin the guilt phase, December 3, 2002, during the prosecutor’s questioning of the first prosecution witness, Holly Menzies, the prosecutor asked why,before the shooting, Ms. Menzies had thought the defendant might have a gun. Defense counsel objected that the question had been asked and answered. This exchange followed: JUDGE: Overruled onthat basis. DEFENSE: Objection — leading. Objection — vague. Objection — foundation. JUDGE: Are you gonna run through the whole evidence codes? DEFENSE: Mightas well. JUDGE: Well, I haven’t heard a legitimate one yet, so overruled. (RT 5:1422.) Soon after this exchange,the trial judge and the parties went into the judge’s chambersto discuss defense counsel’s subsequent objection to the People v. Woodruff, S115378 Appellant’s Opening Brief151 prosecutor’s use of a photograph. While in chambers, defense counsel objected to the trial judge’s tone in addressing counselin front of the jury: I’m very cognizant of you’re able to editorialize in your courtroom and that kind of thing, but ... that you say that every single evidence code objection but I still haven’t done one that’s correct, or whatever, you know,that’s hard for me to live with on the record in front of the jury. Becauseit feels like it’s sort of a chastising of me as counsel. Now, you may not mean that. It may be in humor,so I am concerned aboutthat. * OK R Butit's hard on me, Your Honor. It's hard on meto hear it because ... not only doesit feel bad little bit inside, you know,butit also, I think, it may affect my defense of Mr. Woodruff. I hope in the future I can perhaps not incur your wrath or behave whatI'm doing that's making yousarcastic. That's my perception. (RT 5:1427-1428.) Thetrial judge replied that he “certainly did not intend to be demeaning you. ... But when a lawyer makes an objection that's overruled and then runs through half a dozen or so other reasonsforit, I think I was perfectly justified in making the commentI did.” (RT 5:1428.) Thetrial judge addedthat if counsel had objected that the prosecutor’s question of Ms. Menzieshad called for speculation, he would havesustained the objection. (RT 5:1428-1429.) Incident 2: ‘I told you I wouldn't hesitate to dress you down’ Attrial on December12, 2002, in a discussion outside the presence of the jurors, defense counsel again objected that the trial judge had been treating him unfairly duringthetrial: People v. Woodruff, $115378 Appellant’s Opening Brief152 I think if you scrutinize what you were doing, with respect to your objections and also youreffort to intervene in my advocacy and the facial characteristics that you exhibit, I think that's not fair to me as counsel, andit's not fair to Mr. Woodruff, andit's interfering with his right to a fairtrial. ... I don't like being dressed downin front of the jury. I consider it to be inappropriate, and I consider it to be prejudicialto ... Mr. Woodruff. (RT 10:2241) Thetrial judge responded:“I don't like misbehavior, and I told you at the start ofthis trial, I told you I wouldn't hesitate to dress you down or embarrass youin front of the jury.” (Ibid.) Thetrial judge said defense counsel could be “as zealous and vigorous and as aggressive as you want, but do it professionally.” (/bid.) “It's my obligation to control what's going on in this courtroom. If I think you're being unprofessionaloracting inappropriately, I'll call you onit.” (RT 10:2243.) Incident 3: ‘Obviously they were somewhere’ Attrial on January 7, 2003, during cross-examination of Riverside police officer Donald Goodner, defense counsel asked if Goodner knew whetherat the time he heard a commotion on his police radio members of his SWATteam could have beenin the vicinity of the shooting scene. Goodner answered that he did not know. Defense counselpersisted: DEFENSE: Is it possible that some of them were around the vicinity of LemonStreet at the time of the 11- 99, do you know? WITNESS: I have no idea. DA: Objection — calls for speculation. JUDGE: He just answered that he had noidea. People v. Woodruff, §115378 153 Appellant’s Opening Brief DEFENSE: DA: JUDGE: (RT 14:3144.) Incident4: They could have been anywhere,right? Objection — Obviously they were somewhere. T'll do the explaining and you won't’ Attrial, also on January 7, 2003, on direct examination of homicide detective Ron Sanfilippo, the prosecutor asked about Exhibit 83, a photograph of evidenceat the shooting scene. DA: WITNESS: DEFENSE: JUDGE: DEFENSE: JUDGE: DA: DEFENSE: JUDGE: (RT 14:3186-3187.) Incident 5: Also showing you People's No. 83 for identification, will you describe what's in this photograph? This is a brownrifle with a strap. And there's a jammed bullet or round in the chamber. Objection — foundation. Sustained as to the last part about the jammed bullet. Motionto strike that. Granted. Well, what does it appear to look like to you, the chamber? Could you explain to the jury that they're not supposedtolisten to that last answer? T'll tell you what,I'll do the explaining and you won't. The last half of the answerreferring to the jammed chamberis ordered stricken. The jury is ordered to disregard it. ‘Come on. If you're going to continue along with this, I'm going to cut you offright now.’ Attrial on January 14, 2003, on cross-examination of prosecution forensics expert Richard Takenaga, defense counsel asked aboutbullet comparisons. People v. Woodruff, S115378 154 Appellant’s Opening Brief WITNESS: DEFENSE: DA: JUDGE: DEFENSE: JUDGE: (RT 18:3858-3859.) Incident6: I look at the magazine. I look at the ammunition. SomeinformationI retrieve is the magazine capacity, how many roundsthat particular magazine can hold. I look atthe cartridges. So — butif the magazineis lost with the cartridges in it, how do you lookat the magazine and the cartridgesthatare lost? Objection. Whatdoesthat have to do with anything?It wasn't lost when he wasin possessionofit. Do you know whetherit was lost before you got possessionofit? Comeon. If you're going to continue along with this, I'm going to cut youoffright now. Let's move on to something probative. ‘And you're testifying. Unless you want to raise your right hand and take the oath, don't do it again.’ At trial on January 21, 2003, during cross-examination of defense expert Dr. Joseph Wu,the prosecutor asked whethera patient thinking abouta particular subject or event would affect certain parts of the brain that would show on a PET”! scan. WITNESS: DA: JUDGE: DEFENSE: The patient was doing the vigilance task. The vigilance task asks a patient to press a button — Objection, Your Honor. Focus your answerdirected to the specific question asked, if you can. If you need to explain beyondthat, fine. But listen carefully to the question andtry to responddirectly to it. Object, for the record. He's answered the question. 71 “PRT” stands for positron emission tomography,used to producethree- dimensional images of body functions, such as brain function. (RT 21:4333- 4341.) People v. Woodruff, §115378 155 Appellant’s Opening Brief JUDGE: And you'retestifying. Unless you wantto raise yourright hand andtakethe oath, don't do it again. (RT 21:4444.) Incident 7: ‘The only editorializing I have heard is in your statement’ During cross-examination of prosecution expert Dr. Alan Waxman on January 23, 2003, defense counsel asked if one of the reasonsa scientist would addcolor to a brain image was to makeit simple. The prosecutor objected, but the judge allowed the witnessto state his opinion. WITNESS: If I understand your question, you asked me why does Dr. Wu put color into his pictures; is that the question? DEFENSE: You're getting at it. The questionis, isn't putting color in the picture a way to makeit easy for people to see the differences in the PET scan? WITNESS: Well, that's a great point. The answeris that you can see differences. The problem is that if you call those differences abnormal, whichis whatthe trend or tendencyis, then you've done a disservice. What the color will do is show the differences. And people don't understand that the differences can be as small as one percent, which is within the range of noise. So you can take noise and makeit look different. DEFENSE: Well, no, let me just —- I mean, I would just appreciate if you're able to answer my question. Listen carefully to my question and answerjust as best you can. Don't editorialize. DA: Objection — JUDGE: The only editorializing I have heard is in your statement. You will conduct yourself professionally. Zealousness is fine. Sarcasm and editorializing is not appropriate. (RT 23:4754-4755.) People v. Woodruff, 115378 Appellant’s Opening Brief156 Incident8: ‘No. He wants to argue with you.’ Onfurther cross-examination of prosecution expert witness Dr. Alan Waxman on January 23, 2003, defense counsel asked the basis for Waxman’s conclusion that age was relevant to determining what a normal brain looked like. Waxmanread from a journalarticle, and then offered an explanation of whatthe article meant. DEFENSE: DA: JUDGE: WITNESS: JUDGE: WITNESS: JUDGE: (RT 23:4784.) Incident 9: How do you reconcile saying it says as to what it actually says? Objection — argumentative. Sustained. You wanted meto read — Don't answerthat. I thought he wanted meto read — No. He wants to argue with you. ‘Ask relevant questions or we'll conclude this faster than you'd like.’ In cross-examination of prosecution expert witness Dr. Craig Rath on January 23, 2003, Blankenship asked about Rath’s testimony ondirect examination (RT 23:4863) that he had reviewedthetranscript of an evidence tape of an interview between prosecution investigator Martin Silva and the defendant. DEFENSE: WITNESS: DEFENSE: WITNESS: People v. Woodruff, 8115378 You said you read a transcript of an evidence tape between Martin Silva and the defendant. Whattapeis that? I'm sorry? Whattranscriptis that? Discovery page 1475 to 1528. 157 Appellant’s Opening Brief DEFENSE: Is there sometranscript out there involving a conversation between Mr. Silva and Mr. Woodruff? DA: Your Honor, counsel knowsbetter. JUDGE: Mr. Blankenship, you know better than that. The objection is sustained. Ask relevant questions or we'll conclude this faster than you'd like. (RT 23:4909-4910.) Incident 10: ‘The curtain is about to drop on this act.’ In further cross-examination of prosecution expert Dr. Craig Rath on January 24, 2003, Blankenship asked about Rath’s interview with the People v. Woodruff, 115378 defendant. DEFENSE: Atonepoint, then, he started getting emotional again, right? WITNESS: Yes. DEFENSE: And so you're talking about his — You're talking about Brendi, his companion,talking about Brianna, and you're talking about Pete, and he also brings up his motheragain, right? WITNESS: Yes. DEFENSE: Andatthat point, did you have feelings — did you interpret that he had loving feelings for his mother? WITNESS: Yes. DEFENSE: Did youinterpret that he had feelings of wanting to protect her? DA: Objection — irrelevant. JUDGE: Sustained. DEFENSE: May I have sidebar on that, Your Honor? JUDGE: No. DEFENSE: Talked about his mother and the radio? WITNESS: Hedid. DEFENSE: About how importantthe radio wasto his mother? WITNESS: Yes. It made her happyto listen to her radio. 158 Appellant’s Opening Brief DEFENSE: WITNESS: DA: JUDGE: DEFENSE: WITNESS: DEFENSE: DA: JUDGE: Did herelate the playing of the radio to her mentalillness? Yes. Objection — irrelevant. Sustained. These are facts that you're using to base — These are facts that you're using to make conclusions about Mr. Woodruff, aren't they? No. That has nothing to do with whether or not he's mentally retarded. I includedit in the report so that both sides will understand everything that happened, and you can useit to your advantage or disadvantage. Butit's not the basis of determining whetheror not he's retarded or not. It seems to me yourtestifying on direct examination, didn't Mr. Soccio spenda lot of time talking aboutall these apparently irrelevant facts that you got from the interview? Objection — argumentative. The curtain is about to drop on this act. Let's start asking some questions leading to probative evidence, or we will cut this off. (RT 24:4986-4987.) Incident 11: ‘You're one more argumentative question away from having meclose this down.’ In further cross-examination on January 24, 2003, Dr. Craig Rath agreed with the premise of Blankenship’s leading question that some mentally retarded people can be taught survival skills. DEFENSE: WITNESS: People v. Woodruff, 8115378 How can you be sure Mr. Woodruffis not one of those people whohasterrible intelligence but has learned to survive and has been taught to survive? Because heisn't taught things like higher level of abstraction which he demonstrated in the testing. 159 Appellant’s Opening Brief DEFENSE: Again, an example of higher level of abstraction would be? WITNESS: The answer to, Why do westudy history? for example. And I'll look at the exact quote, a raw data from the Wechsler. DEFENSE: Association. The second that's the Wechsler — I'm sorry, the first one you gave him the second time? WITNESS: I'm sorry? JUDGE: You're one more argumentative question away from having meclose this down. Think about that during the morning recess, which we will take. Please return, ladies and gentlemen, in 15 minutes. (RT 24:4997-4998.) Incident 12: ‘/I]f you bring Wu back here to defend his technique, we can bring Waxman back...’ After the prosecution completed its rebuttal and rested in the guilt phase, defense counseltold the trial judge in chambersthat the defense would recall expert witnesses Wu and Booraem. Thejudgesaid he didn’t think so; he saw a ping-pong effect of back-and-forth argument. “I mean, theoretically, if you bring Wu backhere to defend his technique, we can bring Waxmanbackand wecould be doing this until next year.” (RT 24:5011.) The first “we” in the judge’s commentrefers to the prosecution, an indication that the judge, a former deputy district attorney, still viewed trials from the perspective of the prosecution team. The judge was saying that if he allowed the defenseto recall its expert witnesses in rebuttal, then “we,” the prosecution, would recall the prosecution rebuttal witnesses and People v. Woodruff, $115378 Appellant’s Opening Brief1 the case could go on forever. (RT A:41-42; RT 4:1139; RT 20:4224; RT 24:5011.) Discussion “Althoughthetrial court has both the duty and the discretion to control the conductofthetrial, the court commits misconductifit persistently makes discourteous and disparaging remarks to defense counsel so as to discredit the defense or create the impressionit is allying itself with the prosecution.” (People v. McWhorter(2009) 47 Cal.4" 318, 373 [97 Cal.Rptr.3d 412, 212 P.3d 692].) “Tt is completely improperfor a judge to advise the jury of negative personal views concerning the competence, honesty, or ethics of the attorneys in trial. [Citation omitted.] ... When the court embarks on a personal attack on an attorney,it is not the lawyer who paystheprice, but the client. And the error, where prejudicial, is reversible.” (People v. Fatone (1985) 165 Cal.App.3d 1164, 1174-1175 [211 Cal.Rptr. 288].) “Jurors rely with great confidence onthe fairness of judges, and upon the correctness of their views expressed during trials. When‘the trial court persists in making discourteous and disparaging remarks to a defendant's counsel and witnesses and utters frequent comment from which the jury may plainly perceive that the testimony of the witnessesis not believed by the judge... it has transcended so far beyondthe pale of judicial fairness as to render a new trial necessary.’” (People v. Sturm (2006) 37 Cal.4" 1218, People v. Woodruff, $115378 161 Appellant’s Opening Brief 1233 [39 Cal.Rptr.3d 799, 129 P.3d 10], quoting People v. Mahoney (1927) 201 Cal. 618, 626-627 [258 P. 607].) This Court has adopted the language of the federal appellate courts in ruling that its role is “not to determine whetherthetrial judge's conduct left something to be desired, or even whether some comments would have been better left unsaid. Rather, we must determine whetherthe judge's behavior wasso prejudicial that it denied [the defendant] a fair, as opposed to a perfect,trial.” (People v. Snow (2003) 30 Cal.4" 43, 78 [132 Cal.Rptr.2d 271, 65 P.3d 749], quoting United States v. Pisani (2d Cir.1985) 773 F.2d 397, 402.) | At Mr. Woodruff’s trial, the repeated commentsofthe trial judge disparaging defense counsel weretruly “far beyondthe pale of judicial fairness.” Ten of the twelve incidents described above involved highly prejudicial comments the judge madein the presence of the jury. The other two — Incidents 2 and 12 — were made in chambers and thus were not directly prejudicial. Nevertheless, those incidents offer evidence of the judge’s antagonism toward and contemptfor defense counsel, as well as evidencethatthe trial judge allied himself with the prosecution. Furthermore, Incident 2 demonstrates that defense counsel’s attempts to object that the trial judge’s sarcastic comments were “prejudicial to ... Mr. Woodruff”fell on deaf ears. Instead of modifying the judge’s behavior, defense counsel’s objections led to further sarcasm. (RT 10:2241-2243.) People v. Woodruff, $115378 162 Appellant’s Opening Brief The 10 incidents in the presence of the jury demonstrate thatthetrial judge expressed sarcasm and scorn to defense counsel from thefirst day of testimony in the guilt phase (Incident 1, RT 5:1422) to the last day (Incident 11, RT 24:4997-4998). Cumulatively, the trial judge’s message to the jury was that defense counsel’s questions and objections were without merit, and by extension, his entire case was without merit. Such a proceeding does not meet the requirementof heightenedreliability of guilt and penalty determinations in a death-penalty case. (Woodson v. North Carolina, supra, 428 U.S.at p. 305.) Asa result ofthe trial judge’s repeated disparaging comments about defense counsel, Mr. Woodruff was deprived ofhis rights to a fair trial, the assistance of counsel, heightened reliability of guilt and penalty verdicts in a death-penalty trial, and due process of law underthe Sixth, Eighth and Fourteenth Amendments to the United States Constitution and Article 1, sections 7, 15, 17 and 29 of the California Constitution. Mr. Woodruff’s convictions should be overturned. Mr. Woodruff should be granted a newtrial before a fair and impartial judge in accordance with due processof law. People v. Woodruff, $115378 163 Appellant’s Opening Brief CLAIM B7: Defense counsel repeatedly misrepresented facts. Defense counsel Mark Blankenship made numerousfalse or misleading statements, which diminished the defense’s credibility with the trial court and jury and denied Mr. Woodruff his state and federal constitutional rights to a fair trial, effective assistance of counsel, the heightenedreliability of guilt and penalty verdicts required in a death- penalty case, and due process of law. Facts Falsehoods uttered by defense counsel Mark Blankenship can be found throughoutthe reporter’s transcript of Mr. Woodruff’s trial. Blankenship lied about matters large and small. The seven examplescited in this claim share the characteristic of being demonstrably false, capable of being disproved within the record ofthetrial. 1. First receipt ofdiscovery At a hearing on March 7, 2002, within two weeksof the scheduled start of jury selection, Blankenship alleged: “I received discovery for the first time last week and got a phone call today saying there's additional discovery.” (RT A:97.) Prosecutor Michael Soccio responded: “That’s just a false representation — inaccurate, not false.” (RT A:97.) Indeed, six months earlier, Soccio’s written request for a court inquiry into Blankenship’s qualifications said the prosecution had “providedinitial discovery to the defense, taking an ‘IOU’for the costs since Mr. People v. Woodruff, $115378 164 Appellant’s Opening Brief Blankenship said that he had no funds available to pay for discovery.” (CT 2:355.) 2. First warning ofguilt-phase testimony At a hearing on October 11, 2002, regarding the prosecutor’s suggestion that he mightcall prospective penalty-phase witness Dennis Smith to testify at the guilt phase, Blankenshipsaid, “I guess Mr. Socciois saying it's gonna be a guilt-phase witness. This is the first moment I have heard of that.” (RT B:581-582.) Thetrial judge responded: “No,it wasn't. It was discussedlast time.” (RT B:582.) Indeed,at the previous hearing, on September 27, 2002, the prosecutorhadsaid he anticipated Smith wouldtestify “in the penalty phase ofthis trial, if we get there, or perhaps even in the guilt phase, depending on whether the defendanttestifies or not.” (RT B:559.) 3. Mischaracterization ofBaker testimony At trial on December 5, 2002, Blankenship asked Officer Benjamin Baker on cross-examination if Baker recalled saying he heard a gunshot but wasn’t sure where it came from. Bakerreplied that he could have,that Blankenship could refresh his memory,“but yesterday when you refreshed my memoryyoulied to me. ae Wheneveryousaid that I called for Officer Jacobs to back meup prior to going to the R.P.'s”” house, Ms. Menzies. And I said, Well, I don't recall saying that. If that's what I said, that's not *2 «RP.”is police jargon for “reporting person.” People v. Woodruff, $115378 Appellant’s Opening Brief1 P whatI meant to say. However,that's not what I said at all. You left a sentence out wherever you refreshed my memory.” (RT 7:1715.) Indeed, in cross-examination of Baker on December4, 2002, Blankenship had quoted from Baker’s interview with Detective Kensinger: “Oh, I know they dispatched Doug Jacobs to back me upfor that. Oh,prior to that, wheneverI wastalking to the lady by myself, prior to the R.P. going overthere.” (RT 6:1543.) In the transcript of Baker’s interview with Detective Kensinger, the sentence fragment that Blankenship quoted is the middle of a much longer passage. The entire passage makesclear that Baker was saying he called for his supervisor whenhehadhis first confrontation with Mrs. Carr, and he called for backuplater, after hearing someone shoutat him from downstairs. As the passage begins, Detective Kensinger had just asked about the person in the apartment with Mrs. Carr, her son Claude Carr. Bakerreplied: Yeah he’s the ... short guy, black yeah ... (sound of throat clearing) um hesays uh “get your hands off my Mom”andthenat that time another black male sticks his head out from around the corner at the bottom ofthe stairs, it looked like he was on his porch, he just popped his head out andsaid, he said “hey don’t touch my Mom”and then uh he disappeared andsoat that time I called for a back up, eleven-eleven, uh because I had people all around me,I didn’t know what was going on so the uh.. People v. Woodruff, S115378 166 Appellant’s Opening Brief (sound of coughing) I believe they dispatched, oh I knowthey dispatched Doug Jacobs to uh back me upforthat oh,prior to that, whenever um I was talking to the lady by myself, prior to the RP going over there, um she told me she was going to sue meandthis and that and I asked her “would youlike to speak to my supervisor” and she said “no” and I went ahead and requested my supervisor ’cause she’s saying that she’s gonna sue me, this and that, so um priorto that I already had the uh sergeant on his way over. I went over andtalked to the RP just like I said and uh and then she wassaying that they could resolveit between themselves um I was wanting to wait until the sergeant came becauseofthe uh,if there’s gonna be conflict between meand her. If they wannasolve it themselves then that’s fine, we’re not, we’re not needed but uh they didn’t solve it themselves so uh. Back to where I was now that we, I told you that the supervisor was enroute um. (CT 2:529-530 [underlined portion quoted by Blankenship].) By quoting out of context, Blankenship changed the meaningof“prior to that’ and “prior to the RP going overthere,” which actually referred to events prior to the dispatch of Jacobs, which would havebeenclearerif Blankenship hadread the entire passage — or even the entire sentence. Confronted with his misrepresentation, Blankenship went on the offensive: “Well, isn't it true, Mr. Baker, that I didn't lie to you, you lied to the jury?” No, Bakersaid, it’s not true. (RT 7:1715.) “Isn't it true that when it comesto lies —- Which of your versions of the story would you consider to be the truth?” (RT 7:1715-1716.) The prosecutor objected that Blankenship was being argumentative. The judge sustained the objection. (RT 7:1716.) People v. Woodruff, 8115378 167 Appellant’s Opening Brief 4. More mischaracterization ofBaker testimony Baker’s accusation that Blankenship had lied to him the previous day wasin responseto an additional question in which Blankenship also misrepresented Baker’s testimony:“Isn't it true that you said you heard a gunshot, but you weren't sure where it came from?” (RT 7:1715.) Repeatedly, Baker had said just the opposite of what Blankenship’s question suggested: e On January 13, 2001, the day of the shooting, Bakertold Detectives Kensinger and Shelton: “I heard a uh shot from a gun and I automatically looked right to where it came from and I saw a uh black male adult with a short Afro holding a uh semi-auto handgunpointed up in our direction ...” (CT 2:533.) ° On March 1, 2001, Baker told the grand jury, “I heard a gunshotand I immediately looked downthe stairway to where I saw Steve Woodruff earlier, and he was standing there with a gun pointed in mydirection.” (CT 1:132.) ° On December4, 2002, on direct examination at Mr. Woodruff’s trial, Baker had the following exchange with the prosecutor: BAKER: ... [A]s I went to place the handcuffs on Claude,I heard a gunshot. DA: One shot? Did youtell where the shot People v. Woodruff, S115378 168 Appellant’s Opening Brief came from? BAKER: Yeah. I immediately looked at the bottom of the stairs where the shot came from. ... | saw Steve Woodruff holding a handgunin ourdirection. (RT 6:1487.) e Also on December4, 2002, on cross-examination by Blankenship at Mr. Woodruff’s trial, Bakertestified, “I heard the shot. I looked to see where the shot had comefrom.” (RT 6:1643.) 5. Sequence of “stinger balls” On January 8, 2003, in cross-examination of Riverside homicide detective Ron Sanfilippo, who supervised evidencecollection at the shooting scene, Blankenship asked about “stinger balls”that an officer had tossed onto an interior stairway landing of the Woodruff residence as a diversionary device to flush out other possible suspects. Blankenship asked Sanfilippo: “Now,are those stinger balls, are they —- Do you think they would cause a danger to a four year old?” The prosecutor objected that the question wasirrelevant. The objection wassustained. (RT 15:3376.) Amongthe reasons the question wasirrelevant wasthatthe stinger balls were not thrown until after Mr. Woodruff’s 4-year-old daughter had been removed from the house. Blankenship was aware of the sequence of events — as was the jury — because Officer Kendall Bankshadtestified the previous day that when the officers entered the house, the first thing they People v. Woodruff, 115378 169 Appellant’s Opening Brief did was locate and removethe 4-year-old girl, then they searched the downstairs, including the back yard, and only then did Banks order another officer to toss what Bankscalled a “steam ball” onto the interior stairway landing before the officers attempted to enter the upstairs unit through the interior stairs. (RT 13:3029-3030, 3033.) There was no testimonyto a contrary sequence of events. 6. Polaroid photographs On January 14, 2003, Blankenship cross-examined Richard Takenaga, a forensic analyst for the state Departmentof Justice, about Takenaga’s extraction of a bullet from a section of the exterior wall of the Carr-Woodruff residence. Blankenship asked Takenagaif he had documentedthe extraction with a video camera. Takenaga replied that he documented the extraction with Polaroid photographs. Blankenship asked if Takenaga made copies of the photographs. Takenagasaid he was not sure. Blankenship asked: “So that would mean you're the only person that has the Polaroids at this point?” (RT 18:3822.) The prosecutor asked for a sidebar. In chambers, outside the presence of the jury, the prosecutor explained that Takenaga’s notes “were discovered to the defense. They include xerox copies of the Polaroid photos of them being extracted. The implication from Mr. Blankenship in asking his question is that somehowthere's surreptitious withholding of the Polaroids.” (RT 18:3823.) “[T]he accusation that he did not provide photos People v. Woodruff, S115378 170 Appellant’s Opening Brief goesto his credibility, andit's not the truth.” (RT 18:3826.) The judge agreed. He told Blankenship that the prosecutor“is right. The clear implication of the questions is that you were somehow denied access to these photos. One wayorthe otherit's going to come out that you weren't.” (RT 18:3827.) 7. UC Irvine medicalrecords On January 21, 2003, on redirect examination of Dr. Joseph Wu, who conducted a PET scan on the defendant, Blankenship asked about medical records the prosecutor had said he had not seen. Blankenship asked: “Isn't it true that I even — Do you have any knowledge that I even allowed youto deliver the records directly to Mr. Soccio?” (RT 21:4464- 4465.) The prosecutor objected and asked for a sidebar. Outside the presenceof the jury, the prosecutor said he objected because “neither Dr. Wunor counsel ever gave me medicalrecords from U.C.Irvine. He stands up in front of the jury, makes those kinds of comments, Didn't I provide the records? when he didn't and neither did Dr. Wu.” (RT 21:4465.) “I am saying to then get up and claim like I have it when it wasn't provided by him or the doctor is creating a false impression to the jury. ... The pointis, I didn't want again to have something counsel knowsfull well didn't take place, haveit in frontofjury, madeit look like it did. ... [W]henhesaid, People v. Woodruff, 8115378 171 Appellant’s Opening Brief you know,I gave them to him, or whatever wordsto that effect, that wasn't true.” (RT 21:4466.) The judge told Blankenshipthat “if you make an inference that somehow yougaveit to him or you directed you would ... give it to him and he doesn't haveit, I mean, we're getting off in collateral issues and you're creating an impression here that something unsavoryis going on. Believeit or not, I spent a lot of time lookingat the jury, and they're not buying this stuff.” (RT 21:4467.) Discussion “The proper standard for attorney performanceis that of reasonably effective assistance. When a convicted defendant complainsof the ineffectiveness of counsel's assistance, the defendant must show that counsel's representation fell below an objective standard of reasonableness.” (Strickland v. Washington, supra, 466 U.S. at pp. 687- 688.) Blankenship’s performance as attorney for Mr. Woodruff was not only unreasonable — it violated the state’s rules of ethics and criminal statutes regarding attorney behavior. This Court has said “the primary purpose of attorney discipline is not the punishmentofthe attorney; it is the protection of the public, the profession, and the courts.” (In re Nadrich (1988) 44 Cal.3d 271, 276 [243 Cal.Rptr. 218, 747 P.2d 1146].) An attorney can be disbarred for moral People v. Woodruff, S115378 172 Appellant’s Opening Brief turpitude after presenting false evidence and committing other acts involving dishonesty in court proceedings, as Blankenship did in Mr. Woodruff’s case. (Snyder v. State Bar of California (1976) 18 Cal.3d 286 [133 Cal.Rptr. 864, 555 P.2d 1104].) Rule 5-200 of the California Rules of Professional Conduct requires attorneys to employ “such meansonly as are consistent with truth” and prohibits an attorney from “mislead[ing] the judge, judicialofficer, or jury by an artifice or false statement of fact or law.” Business and Professions Codesection 6068, subsection (d), includes nearly identical language. An attorney whois “guilty of any deceit or collusion, or consents to any deceit or collusion, with intent to deceive the court or any party”is guilty of a misdemeanor under Business and Professions Code section 6128. An attorney’s act involving dishonesty constitutes a cause for disbarment or suspension under Business and Professions Code section 6106. Blankenship violated his ethical duties as a memberof the California Bar, as well as his responsibilities under the statutes cited above, by a pattern of lying, deception and badfaith, including misstating when he received discovery and when helearned aboutpossible guilt-phase prosecution testimony, by misrepresenting former statements of a key prosecution witness, by misstating the sequence of events regarding police People v. Woodruff, S115378 173 Appellant’s Opening Brief use of “stinger balls,” by misleading the jury regarding his possession of copies of prosecution photographs, and by misleading the jury regarding discovery of medical records to the prosecution. Blankenship’s egregious misconduct undercutthe defensein the eyes of the jury, which could not rely on the veracity of anything Blankenship said. The jury’s distrust of Blankenship wasvisited on his client, as Blankenship’s arguments fell on deaf ears, denying Mr. Woodruff the heightenedreliability required in death-penalty cases. (Woodsonv. North Carolina, supra, 428 U.S.at p. 305.) Blankenship’s outrageous conduct denied Mr. Woodruff his rights to a fair trial, effective assistance of counsel, heightenedreliability of guilt and penalty determinations in a death-penalty case, and due process of law underthe Sixth, Eighth and Fourteenth Amendments to the United States Constitution and Article 1, sections 7, 15, 17, 24 and 29 of the California Constitution. Mr. Woodruff’s convictions should be overturned. He should be granted a new trial with competent counsel. People v. Woodruff, S115378 174 Appellant’s Opening Brief CLAIM B8: Prosecutor committed prejudicial misconduct by improperly appealing to jurors’ emotions with “golden rule” argument. The prosecutor’s guilt-phase closing argument urged jurors to place themselvesin the shoes of the victims, prosecution witnesses, the | defendant’s neighbors and even defense expert witnesses’ patients. The highly prejudicial argument denied Mr. Woodruff his state and federal constitutionalrights to a fairtrial, reliable guilt-phase, retardation-phase and penalty-phase verdicts, and due processof law. Facts Prosecutor Michael Soccio’s closing argumentin the guilt phase followeda pattern: Soccio would describe a situation from the facts of the trial, and then suggestthat the jurors consider how they wouldreactin that situation. In rebutting defense counsel’s guilt-phase closing argument that Mr. Woodruff had felt a sense of terror and menace from Officer Benjamin Baker (RT 25:5196, 5197), the prosecutor told the jury: “Menacing Ben Baker.” I loved that term when the defense used it. If you were gonna be cited for some misdemeanor mild conduct, wouldn't you wantto be treated like he treated Parthenia Carr? (RT 25:5231.) Next, the prosecutor asked the jurors to put themselves in the shoes of Mr. Woodruff’s neighbors: People v. Woodruff, 8115378 Appellant’s Opening Brief17 How would you like them as your neighbors, the Woodruff/Carr clan? Each of them in trouble with the law. Every day near your bedroom radio blasts for hours, andit's gone on for years, and you had the gall to call the police three times? Shame on you for wanting peace and quiet in your own home.... Your neighbors, the Woodruff/Carrs, urinate on trees outside. And you'd like them as a neighbor, to have them play the radio? How comforting. (RT 25:5232.) Then, the prosecutor got more specific, asking the jurors to put themselvesin the shoes of Holly Menzies, the next-door neighbor who called the police to complain abouta noisy radio: [W]ouldn't you wantto sell your house, too, if you lived there? Would you want somebodyouton this stoop listening to Oldies three and four hours a day and drinking beer? No. Would you be accused and faulted for calling the police? Yes, if you were a witnessin this trial. (RT 25:5235.) Regarding Ms. Menzies’ confrontation with Mrs. Carr on the landing of Mrs. Carr’s apartment, again the prosecutor askedthe jurors to place themselves in Ms. Menzies’ shoes: Would you wantto stay up there with her and a police officer? Who would feel safe? The door had already been pulled away from her. She was already yelled at. Would you stay? Not if you had anysense. (RT 25:5236.) In disparaging expert witnesses who had testified for the defense, the prosecutor urged jurors to place themselves in the shoes of the experts’ patients: People v. Woodruff, 115378 176 Appellant’s Opening Brief Let's talk about the doctors for a minute. You met Einstein the other day. If you had a brain problem or suspected problem, would you wanthim to bethe oneto interpret your scan? If you had a child who wassick, would you want Dr. Wuto be the oneto take the picture and talk about whatit meant? Would you want Dr. Booraem to be your psychologist? (RT 25:5244.) Mostprejudicial of all was the prosecutor’s suggestion that the jurors place themselvesin the shoes of the victims — Detective Jacobs, who waskilled by a gunshot, and Officer Baker. As with Ms. Menzies, the prosecutor askedthe jurors to imagine they were in the shoes of Officer Baker,at the landing of Mrs. Carr’s apartment, confronting Mrs. Carr’s younger son, Claude Carr: Can you imagine a more deadly place to be trapped with an angry parolee than on a three-foot by six-foot landing, suspended, what, fifteen feet above the ground? Where do you go? Screen door is behind you. The motheris to one side. If you're pushed,hit, you're tall — shorter would have been better up there. Railing at least could have beena little bit safe. (RT 25:5233.) And,the prosecutor invited the jurors to imagine the gun had been pointed at them: He may have been aboutas far as I am from you when he shot and killedDoug Jacobs. Is that very far to take a gun and pointit at you and shoot? (RT 25:5239.) People v. Woodruff, $115378 177 Appellant’s Opening Brief The prosecutor continued with the same theme, placing himself in the role of the killer and the jurors as the victim: I just can't say — or I can say it. I can say anything I want, that I was in fear for mylife so I had to kill you. Well, numberone,it assumesI killed you. (Ibid.) Discussion This Court has long disapproved “the so-called ‘golden rule’ argument, by which counselasksthe jurors to place themselvesin the plaintiff's shoes and to award such damages as they would ‘charge’ to undergo equivalent pain and suffering.” (Beagle v. Vasold (1966) 65 Cal.2d 166, 182, fn. 11 [53 Cal.Rptr. 129, 417 P.2d 673].) Although Beagle was a civil suit involving personal injuries from an automobile accident (/d., at p. 170), California courts have consistently held that appeals to the jurors’ sympathy or passions haveno place in criminal cases either. (See People v. Carlin (1968) 261 Cal.App.2d 30 [67 Cal.Rptr. 557]; People v. Leach (1934) 137 Cal.App. 753 [31 P.2d 449]; People v. Botkin (1908) 9 Cal.App. 244 [98 P. 861].) This Court has repeatedly held that a prosecutor’s use of a “golden rule” argumentin the guilt-phase of a death-penalty case constitutes misconduct: During the guilt phase of a capital trial, it is misconduct for a prosecutor to appeal to the passions of the jurors by urging them to imagine the suffering of the victim: “We have People v. Woodruff, §115378 178 Appellant’s Opening Brief settled that an appeal to the jury to view the crime through the eyes of the victim is misconductat the guilt phase oftrial; an appeal for sympathyfor the victim is out of place during an objective determination of guilt.” (People v. Jackson (2009) 45 Cal.4" 662, 691 [88 Cal.Rptr.3d 558, 199 P.3d 1098], quoting People v. Stansbury (1993) 4 Cal.4" 1017, 1057 [17 Cal.Rptr.2d 174, 846 P.2d 756]; also see People v. Leonard (2007) 40 Cal.4" 1370, 1406 [58 Cal.Rptr.3d 368, 157 P.3d 973]; People v. Fields (1983) 35 Cal.3d 329, 362 [197 Cal.Rptr. 803, 673 P.2d 680].) Prosecutorial misconduct may “so infect[] the trial with unfairness as to makethe resulting conviction a denial of due process.” (Donnelly v. DeChristoforo, supra, 416 U.S. at p. 643.) Prosecutorial misconduct violates a defendant’s federal constitutional right to due process if the misconductrendersa trial “fundamentally unfair.” (Darden v. Wainwright, supra, 477 U.S.at p. 183.) This Court has held that although “it is misconduct to appeal to the jury to view the crime throughthe eyesofthe victim,”it can be harmless error if the prosecutor’s “comments were brief and he did not return to the point.” (People v. Mendoza (2007) 42 Cal.4" 686, 704 [68 Cal.Rptr.3d 274, 171 P.3d 2].) In Mr. Woodruff’s trial, the impropriety was notlimited to a single commentbut a pattern of argument. The prosecutor’s “golden rule” argument wasa recurring rhetorical device, a process of analysis that the People v. Woodruff, S115378 179 Appellant’s Opening Brief prosecutor encouragedthe jurors to use to view virtually all evidence through the eyes of innocents, thus demonizing not only Mr. Woodruff but also the other membersof his family. Thus, the prosecutor encouraged the jurors to use nottheir intellect to analyze facts, but their emotionsto find Mr. Woodruff guilty of the most severe charge possible, which made Mr. Woodruff’s trial fundamentally unfair. Throughoutthe prosecutor’s closing argument, he soughtto stir up the jurors emotionally, to make them angry at “the Woodruff/Carr clan.” Could the jurors imagine being their neighbors? “Each of them in trouble with the law.” They blast the radio for hours every day; they urinate on trees. (RT 25:5244.) In fact, they did no such thing. While the evidence indicates that some membersof the family had serious criminal records, Steve Woodruff did not. While the evidence indicates that his mother played her radio loud, Steve Woodruff did not. While the evidence indicates that younger brother Jimmy Taylorurinated in the yard after being detained by police and denied the use of a bathroom (See RT 10:2296), Steve Woodruff did not. The prosecutorinsinuated that the jurors should find Steve Woodruff guilty by association — with his mother’s loud radio, with his brothers’ criminal records, and with one brother’s desperate urination in the yard whenpolice officers would not allow him to goinside and use a bathroom. People v. Woodruff, S115378 180 Appellant’s Opening Brief This improper prosecutiontactic of putting the jurors in the shoes of others — the police officers, the neighbors, even the patients of defense expert witnesses — was intendedto inflame the passions of the jurors and unfairly prejudice them against the defendant. Defense counsel did not object but instead sat mute, and there was no curativeinstruction. As a generalrule, a defendant may not complain on appeal of prosecutorial misconduct unless he made a timely objection attrial to the misconduct and requested that the jury be admonishedto disregard it. (People v. Berryman, supra, 6 Cal.4" at p. 1072. Additionally, when the claim focuses on comments made bythe prosecutor before the jury, the question is whetherthere is a reasonable likelihood that the jury applied any of the inappropriate remarks in an objectionable fashion.(Ibid.) However, a defendant will be excused from making a timely objection or a request for admonition if either would be futile. (People v. Arias (1996) 13 Cal.4™ 92, 159 [51 Cal.Rptr.2d 770, 913 P.2d 980].) The failure to request an admonition also doesnotforfeit the issue for appeal if ‘an admonition would not have cured the harm caused bythe misconduct.’” (People v. Bradford, supra, 15 Cal.4"at p. 1333, quoting People v. Price, supra, 1 Cal.4™ at p. 447.) People v. Woodruff, 8115378 181 Appellant’s Opening Brief Defense counsel’s failure to object to the prosecutorial misconductis excused becauseoffutility — he had already made five objections”’ to the prosecutor’s guilt-phase argument, all of them denied. It is implausible under these circumstancesto believe that further objections would have been granted. Furthermore, no admonition could have cured the prosecution’s prejudicial strategy. In the highly charged atmosphere of Mr. Woodruff’s trial, in which an illiterate and unemployed black man wasontrial in the shooting death of a white police officer, there is more than a reasonable likelihood that the jurors did as the prosecutor suggested. The prosecutor’s tactic had whatthis Court has described as “a negative synergistic effect, rendering the degree of overall unfairness to defendant more than that flowing from the sum of the individual errors.” (People v. Hill, supra, 7 Cal.4" at p. 847.) As a result of the prejudicial misconduct,the trial did not meet the requirementof heightened reliability of guilt and penalty determinations in a death-penalty case. (Woodson v. North Carolina, supra, 428 US.at p. 305.) Mr. Woodruffwas denied his rights to a fair trial, the heightened reliability of guilt and penalty verdicts required in a death-penalty case, and due process of law underthe Fifth, Sixth, Eighth and Fourteenth *? Defense counsel had already objected to the prosecutor’s arguments at RT 24:5121, RT 24:5131, RT 25:5227 (twice), and RT 25:5230. People v. Woodruff, 115378 182 Appellant’s Opening Brief Amendments to the United States Constitution and Article 1, sections 7, 15, 17 and 29 of the California Constitution. Mr. Woodruff’s convictions and death sentence should be overturned. People v. Woodruff, $115378 183 Appellant’s Opening Brief CLAIM B9:Evidence wasinsufficient to support jury’s special circumstancefinding of lying in wait. Evidence presentedattrial did not support the jury’s “true” finding of the special circumstancethat the defendant was lying in wait when he intentionally killed Detective Jacobs. Thetrial judge erred in failing to reverse the special circumstance finding on his own motion andin denying the defense motion for new trial on the same ground, which violated Mr. Woodruff’s state and federal constitutional rights to a reliable sentence and due processof law. Facts Amongthe jury’s findings in the guilt phase, on January 28, 2003, wasthat the special circumstancethat the defendantintentionally killed Detective Jacobs while lying in wait, under Penal Codesection 190.2, subdivision (a), subsection (15), was true. (CT 19:5392; RT 25:5274.) Thetrial judge had given an instruction defining “lying in wait” as “a waiting and watching for an opportune time to act, together with concealment, ambush or by someothersecret design to take the other person by surprise even though the victim is aware of the murderer’s presence.” (RT 24:5094; see CALJIC 8.25.) Officer Benjamin Bakertestified that well before the shooting of Detective Jacobs, Baker was aboutto arrest the defendant’s brother Claude Carr when he heard Mr. Woodruff shout from below that Baker had better People v. Woodruff, $115378 184. Appellant’s Opening Brief not touch his mother. Bakertestified that all he could see of Mr. Woodruff washis head, which popped out abovethe stairway railing and then disappeared. Bakertestified that he perceived Mr. Woodruff’s statement as a threat. (RT 6:1474-1475, 1478.) Bakertestified that he made an “11-11” radio call — officer needs immediate assistance — “[b]ecause in that particular situation, Steve Woodruff had said, [‘)You better not touch my mother.[’] And something in his voice madeit soundlike it was a threat.” (RT 6:1476.) Baker testified that when Detective Jacobs arrived on the scene, Baker went downthe stairway and met Jacobs in the middle of the stairway. (RT 6:1480.) Bakertestified that he explained the situation to Jacobs — an uncooperative woman upstairs was refusing to turn her radio down,a son approached Bakerupstairs, and “a guy”in the downstairs unit hadsaid, “You better not touch my mom.” (RT 6:1481-1482.) Defense counsel’s motion for newtrial, filed April 16, 2003, challenged the sufficiency of the evidence of the lying-in-wait special circumstance. (CT 19:5489-5490; RT 28:5793.) At a hearing on the motion the next day, thetrial judge ruled that the evidence wassufficient “to sustain a finding,” although thetrial judge did not specifically mention the lying-in-wait special circumstancein his ruling. (RT 28:5804.) People v. Woodruff, §115378 185 Appellant’s Opening Brief Discussion UnderPenal Codesection 190.2, the penalty for a defendant found guilty of murderin the first degree is imprisonmentforlife without possibility of parole or death if one of 22 enumerated special circumstances is found to be true. The jury found true three special circumstance allegations: The murder was committed to avoid or prevent a lawful arrest (Pen. Code § 190.2(a)(5); CT 19:5372, 5392; RT 25:5273); the victim was a peace officer in the performanceof his duties (Pen. Code § 190.2(a)(7); CT 19:5373, 5392; RT 25:5273-5274); and the defendantintentionally killed the victim while lying in wait. (Pen. Code § 190.2(a)(15); CT 19:5374, 5392; RT 25:5274.) The elements of lying in wait are “(1) a concealment of purpose, (2) a substantial period of watching and waiting for an opportunetimeto act, and (3) immediately thereafter, a surprise attack on an unsuspecting victim from a position of advantage[.]" (People v. Sims (1993) 5 Cal.4™ 405, 432 [20 Cal.Rptr.2d 537, 853 P.2d 992], citing People v. Morales (1989) 48 Cal.3d 527, 557 [257 Cal.Rptr. 64, 770 P.2d 244]; see People v. Edwards (1991) 54 Cal.3d 787, 825 [1 Cal.Rptr.2d 696, 819 P.2d 436].) Concealmentis established by a showing “that a defendant's true intent and purpose were concealed byhis actions or conduct. It is not required that he beliterally concealed from view before he attacks the victim.” (People v. Webster (1991) 54 Cal.3d 411, 448 [285 Cal.Rptr. 31, People v. Woodruff, 115378 186 Appellant’s Opening Brief 814 P.2d 1273], citing People v. Morales, supra, 48 Cal.3d at p. 555; see People v. Edwards, supra, 54 Cal.3d at p. 825.) “The required concealment need not be physical. It suffices if the defendant's purpose andintent are concealed by hisactions or conduct, and the concealmentof purpose puts the defendantin a position of advantage, from whichthe fact finder may infer that lying in wait waspart of the defendant's plan to take the victim by surprise.” (People v. Ceja (1993) 4 Cal.4" 1134, 1140 [17 Cal.Rptr.2d 375, 847 P.2d 55].) The “substantial” period of watching and waiting need only be minutes. (People v. Edwards, supra, 54 Cal.3d at pp. 825-826.) “The precise period of timeis also notcritical. As long as the murderis immediately preceded by lying in wait, the defendant neednotstrike at the first available opportunity, but may wait to maximizehis position of advantage before taking his victim by surprise.” (People v. Ceja, supra, 4 Cal.4"at p. 1145.) A criminal conviction based on insufficient admissible evidence to support the jury's verdicts and findings violates the due process clause of the Fourteenth Amendmentto the United States Constitution, and Article 1, sections 7, 24 and 29 of the California Constitution. (Jackson v. Virginia (1979) 443 U.S. 307 [99 S.Ct. 2781, 61 L.Ed.2d 560]; People v. Johnson (1980) 26 Cal.3d 557 [162 Cal.Rptr. 431, 606 P.2d 738].) Such a proceeding also does not meet the requirementof heightenedreliability of People v. Woodruff, S115378 187 Appellant’s Opening Brief guilt and penalty determinations in a death-penalty case. (Woodson v. North Carolina, supra, 428 U.S.at p. 305.) In this case, Officer Bakertestified that he perceived as a threat Mr. Woodruff’s warning that Baker had better not touch Mr. Woodruff’s mother. Further, when Detective Jacobs arrived, Baker briefed Jacobs on the situation, including that a relative downstairs posed a threat. Hence,the defendant had not concealed his purpose, since both officers were aware that he represented a threat. Nor had the defendant concealedhis location, since he had issued the warning from the samelocation thathelaterfired the gun. Additionally, the shooting had not comeas “a surprise attack on an unsuspecting victim,” since Baker had suspected the defendant represented a threat, which was oneof the reasons for Baker’s call for assistance. And, Baker had related to Jacobs that someone downstairs had threatened him. The facts of this case are insufficient for a finding of the special circumstance of lying in wait. Consequently, the evidenceis insufficient for the jury’s finding that the special circumstance wastrue. The jury’s finding, and the trial judge’s decision to uphold it, violated Mr. Woodruff’ s state and federal constitutional rights to a reliable sentence and due process of law under the Fourteenth Amendmentto the United States Constitution and Article 1, sections 7, 15, 17, 24 and 29 of the California Constitution. People v. Woodruff, S115378 188 Appellant’s Opening Brief The special circumstance of lying in wait should be dismissed. Because the penalty phase waspredicated onthe special circumstance findings, Mr. Woodruff’s death sentence should be reversed. Onthis claim, this case should be remandedtothetrial court for a new penalty phase. People v. Woodruff, §115378 Appellant’s Opening Brief189 PP g Cc. Retardation phase CLAIM C1:Trial court improperly created its own format for mental retardation phase. Thetrial court, without guidance from higher courts or the state legislature, arbitrarily established its own format for the mental retardation phase of Mr. Woodruff’s trial. The trial judge’s makeshift format gave the jury untrammeled discretion, which denied Mr. Woodruff due process of law and equal protection of the laws, and resulted in the type of arbitrary and capriciousinfliction of punishmentthat the state and federal constitutions forbid. Facts On June 20, 2002, the United States Supreme Court issued its decision in Atkins v. Virginia, 536 U.S. 304 [122 S.Ct. 2242], prohibiting the execution of mentally retarded defendants. At a pre-trial hearing for Mr. Woodruff the next day, defense counsel Mark Blankenship said he wanted to set a hearing date for a motion to dismiss the death-penalty charge in light of Atkins. (RT B:510.) Blankenship said he would be “willing to take testimony of these doctors in advancement[sic] of commencementofthe trial,” to prevent the unnecessary death-qualification of trial jurors. (RT B:511-512.) Thetrial judge said he felt such a motion would be premature and would be more appropriate after a jury convicted the defendant, found People v. Woodruff, $115378 Appellant’s Opening Brief190 special circumstancesto be true, and recommendedthe death penalty. (RT B:511.) Atthe next pre-trial hearing, on July 2, 2002, defense counsel again askedthetrial judge “to set some kind of a hearing to deal with that evidentiary matter” regarding the issue of whether Mr. Woodruff qualified as mentally retarded under Atkins. (RT B:513.) Blankenship acknowledged that the trial judge was “notinclined to set any sort of evidentiary hearing regarding whether or not Mr. Woodruffis even eligible for the death penalty. ... [Jf Mr. Woodruffis not eligible for the death penalty, I think it would be highly prejudicial to death-qualify jurors and let them think they're perhaps pursuing a death penalty case, whenat one point it would be determined that his mental state is such that he fell within the parameters of Atkins [v.] Virginia.” (RT B:515.) Defense counsel said the situation was analogousto a motion for summary judgmentin a civil case, with no issue of fact regarding Mr. Woodruff’s mental state, so “‘as a matter of law, the death penalty charges can't go forward and they should then be dismissed.” (RT B:515-516.) Thetrial judge orderedthe jail to provide the prosecution’s psychologist with access to Mr. Woodruff for appropriate testing. Then, the judge expressedhis frustration with the lack of guidance he had received about proper procedure for a mental retardation determination in a death-penalty case: People v. Woodruff, S115378 191 Appellant’s Opening Brief I note the Supreme Court — andit is typical of the Supreme Court that they kind of left it up to the states to determine what degree of mental retardation falls within the opinion they issued. They didn't bother to tell us what standard of proof would be required, who would have the burden of proof, and all that good stuff. But that's typical of the United States Supreme Court. (RT B:516.) On November7, 2002, less than five monthsafter the Atkins decision, Mr. Woodruff’s trial began. The timing of Mr. Woodruff’s trial was such that he was the second” capitally charged defendantin California to have a mental retardation phase under the vague requirements of Atkins. Onthefirst day of jury selection, defense counselfiled a written motion seeking yet again to preventthe selection of a “death penalty qualified” jury until after the issue of Mr. Woodruff’s mental retardation had been determined. (CT 17:4819-4833.) In the motion, defense counsel noted, “This Court has not established a procedure to implement Defendant Woodruff’s Atkins defense of mental retardation.” (CT 17:4821.) Thetrial judge denied the motion. The judgesaid there would be a guilt phase first, and then a mental retardation phase, but “only if the jury finds the defendantguilty of first-degree murder and findsat least one of the special circumstancestrue.” (RT 2:617.) The judge said the same jury ** The first defendant with a mental retardation phase under Atkins was Louis Gomez in Imperial County. (Salorio, Penalty phase in Gomeztrial begins Tuesday, Imperial Valley Press (Dec. 1, 2002); also see RT 2:618, RT 19:4070.) People v. Woodruff, S115378 192 Appellant’s Opening Brief would decide the question of mental retardation as would make a recommendation on the penalty. (RT 2:617-618.) Again, the judge expressed his frustration with the lack of guidance about how a mental retardation phase oughtto be structured: I acknowledge for the record that the higher courts have given us absolutely no guidanceon this, despite the United States Supreme Court's proclamation in the last paragraph of the Atkins opinion that weleaveit to the States to determine how weshould proceed in these matters. And sincethe legislature of the State of California has not acted, nor has any appellate court, including the State Supreme Court given us any guidance,I feel this is the fairest and most equitable way to proceed. Obviously, we are breaking new groundhere.... Somewhere downthe line I may be proven wrong,but that's why wehavehigher courts. (RT 2:618.) The format for the mental retardation phase of Mr. Woodruff’s trial remained unclear even with the trial underway. At a hearing on January 15, 2003, defense counsel proposed merging the guilt and mental retardation phasesinto a single phase, which “would getus to the two phasesa lot quicker. In theory, we can be done with them by the middle of next week.” (RT 19:4064.) Thetrial judge said defense counsel’s suggestion was not an option, and hefelt that the other possibility, merging the mental retardation and penalty phases, would be prejudicial to Mr. Woodruff. (RT 19:4064- 4065.) As an aside, the judge said: “Again, for those armchair quarterbacks who may someday be reviewingall this - my messageto youis thanks for the guidance you haven't given us from the U.S. Supreme Court on down to People v. Woodruff, 115378 193 Appellant’s Opening Brief the California state legislature.” (RT 19:4064.) Later in the hearing, the judge said, “I feel a better way to do it — And, as you know,it’s only been oncein this state and just recently, is to do it with a separate phase onthat issue until the trial courts receive guidance from some higher authority.” (RT 19:4070.) Two weekslater, when the judge and both counsel were again discussing possible formats for the mental retardation phase, the judge said: I think without guidance from either the Supreme Court, referring to the U.S. Supreme Court, or the state legislature, I think fundamental fairness dictates that the jury not be exposed to the evidence to be exposed and presented in the penalty phaseto the extent that may affect their judgment with respect to the retardation issue. Again, so the record is clear, that's why I have separated the retardation phase from the penalty phase. (RT 25:5284-5285.) Only two witnesses, both clinical psychologists, gave testimony at trial on the issue of whether Mr. Woodruff was mentally retarded. Dr. Curtis Booraem, who had assessed Mr. Woodruff as mildly mentally retarded,testified for the defenseat all three phasesoftrial. (RT 21:4496- RT 22:4702; RT 26:5298-5324; RT 27:5683-5691.) Dr. Craig Rath, who had assessed Mr. Woodruff as learning disabled but not mentally retarded, testified for the prosecution in the guilt phase only. (RT 23:4856-4927, RT 24:4946-5008.) Booraemtestified that he evaluated Mr. Woodruff at the Riverside People v. Woodruff, $115378 194 Appellant’s Opening Brief County jail on March 21, 2002. (RT 21:4513; RT 22:4600.) In his initial report, Booraem assessed Mr. Woodruff as having a full-scale IQ of 69. (RT 21:4542.) Booraem’s revised conclusionin his final report was that Mr. Woodruff had a full-scale IQ of 66. (RT 21:4543; CT 17:4860.) Booraem testified that IQ scores in the 60s indicated a person who was high-functioning mentally retarded. (RT 22:4603.) Booraemtestified that when Mr. Woodruff was age 16, his math scores were at the third-gradelevel, his reading scores wereatthefirst- gradelevel, his spelling scores were at the fourth-grade level, and his general information scores wereat the fourth-grade level. Booraem said those scores were consistent with being mentally retarded. (RT 21:4551.) In rebuttal, Rath testified that he evaluated Mr. Woodruff on August 26, 2002, using the same WAIS-III test Booraem had used five months earlier. (RT 23:4896.) Rath acknowledgedthat the test manual said the “practice effect” of testing Mr. Woodruff with the WAIS-III a second time in less than a year could raise the full-scale IQ score an average of 5 points.” (RT 24:5007.) Nonetheless, Rath said he assessed Mr. Woodruff’s full-scale IQ as 78. (RT 23:4901.) Rath said Mr. Woodruff had a learning > An Oklahomastudy published in 2002, the same year Mr. Woodruff was tested and retested, found the “practice effect” of retesting the same subjects with the WAIS-III either three or six monthsafter the initial test raised the full-scale IQ score an average of six points. (Basso,et al., Practice Effects on the WAIS-III Across 3- and 6-Month Intervals (2002) 16 Clinical Neuropsychologist 57.) People v. Woodruff, S115378 Appellant’s Opening Brief19 g disability but was not mentally retarded because his personalself-help skills were unimpaired, his socialization was “relatively unimpaired” and his IQ wastoo high. (RT 23:4902.) Rath attributed the higher scores in his assessments to having had better rapport with Mr. Woodruff than Booraem had. Hebasically told me that he did nottry very hard on Dr. Booraem's test, and that he agreed thatif I tested him he would try harder and do a better job because he did not want to be labeled as mentally retarded. ... I think he was embarrassedat the prospect of being labeled mentally retarded and didn't wantto do that, so he agreedto try his best for the testing that I did. ... [H]e indicated that he didn't agree with his defense counselat all. He thought that was a stupid idea for him to be labeled as retarded. He didn't wantit, and he doesn't wantto be labeled as retarded. (RT 23:4867.) Booraem, the only witnessto testify for either side in the mental retardation phaseoftrial, testified that in terms of adaptive functioning, Mr. Woodruff was within the normal range in self-care, home living, social interpersonalskills, health and safety, but “pretty poor” in self-direction and “very poorby history” in academics. (RT 24:5303-5304.) Booraem testified that Mr. Woodruff’s biggest limitations were in academics and work. With those limitations, Mr. Woodruff was“by definition” mentally retarded, Booraem said. (RT 24:5305, 5312.) Defense counsel asked Booraem if, with a margin of error of 5 points in the IQ measurements, Mr. Woodruff would still qualify as mentally People v. Woodruff, $115378 196 Appellant’s Opening Brief retardedif his full-scale IQ wasactually 71, or 5 points higher than Booraem’s assessment. The prosecutor objected that the question was irrelevant. The judge sustained the objection, explaining that “the jury will be instructed the standard there applies to the definition of the American Psychiatric Association, which requires an IQ, among other things, under 70.” (RT 26:5322.) However, upon further questioning by defense counsel, Booraem testified that the APA definition”° of mentalretardation did not require an IQ under 70, and with the 5-point margin of error could include an IQ as high as 75. (RT 26:5323-5324.) The trial judge’s instruction to the jury closely tracked the wording of Criteria A, B and C of the APAdefinition. (RT 26:5333-5334.) However, the judge did not explain whatthe criteria meant, nor did he mention IQ levelat all. *° The American Psychiatric Association definition of mental retardation wasquotedin Atkins, supra, 536 U.S.at p. 308,fn. 3: "The essential feature of Mental Retardationis significantly subaverage general intellectual functioning (Criterion A) that is accompaniedbysignificantlimitations in adaptive functioningin at least two of the followingskill areas: communication,self-care, homeliving, social/interpersonal skills, use of community resources, self-direction, functional academic skills, work, leisure, health, and safety (Criterion B). The onset must occur before age 18 years (Criterion C). Mental Retardation has many different etiologies and may be seen as a final common pathwayofvarious pathological processesthat affect the functioning of the central nervous system." American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders 41 (4th ed. 2000). "Mild" mental retardationis typically used to describe people with an IQ level of 50-55 to approximately 70. Jd., at 42-43. People v. Woodruff, 115378 197 Appellant’s Opening Brief Discussion On October 8, 2003, less than six months after Mr. Woodruff was sentenced to death, Governor Gray Davis signed into law Penal Code section 1376, which defined “mentally retarded” for purposes of death- penalty prosecutionsas “the condition of significantly subaverage general intellectual functioning existing concurrently with deficits in adaptive behavior and manifested before the age of 18.” (Pen. Code § 1376(a).) The statute provided for what Mr. Woodruff’s defense counsel had initially requested, a “hearing withouta jury prior to the commencement of the trial. ... If the defendant does not request a court hearing, the court shall order a jury hearing”at the conclusion of the guilt phase, if a special circumstance was found to be true. (Pen. Code § 1376(b)(1).) Another provision of the statute said, ““No statement made by the defendant during an examination ordered by the court shall be admissible in the trial on the defendant's guilt.” (Pen. Code § 1376(b)(2).) This Court subsequently said that Penal Code section 1376 “sets forth the standards and procedures for determining whether a defendant against whomthe prosecution seeks the death penalty is mentally retarded within the meaning of Atkins.” (In re Hawthorne (2005) 35 Cal.4™ 40, 43 [24 Cal.Rptr.3d 189, 105 P.3d 552].) The Hawthorne opinionsaid postconviction claims of mental retardation should be raised by habeas corpuspetition (/d., at p. 47); an IQ of 70 is not the upper limit for mental People v. Woodruff, S115378 198 Appellant’s Opening Brief retardation because “a fixed cutoff is inconsistent with establishedclinical definitions” (/d., at p. 48); and mental retardation is a question offact.(/d., at p. 49.) Later, in People v. Superior Court (Vidal) (2007) 40 Cal.4™ 999 [56 Cal.Rptr.3d 851, 155 P.3d 259], this Court noted that defense experts in that case concludedthat flaws in testing “could together or separately result in a score as high as 78 from a mildly retarded person”(Vidal, at p. 1006, fn. 4), precisely the score that prosecution expert Rath had said was too high to indicate mental retardation for Mr. Woodruff. (RT 23:4902.) If Penal Code section 1376 had been enacteda yearearlier, the judge in Mr. Woodruff’s trial would have had the kind of “guidance”that he sought, the standards and procedures for determining whether Mr. Woodruff was mentally retarded. Defense counsel would have had the authority for the pretrial hearing that he sought before a death-qualified jury wasselected. Noneofthe prejudicial statements that the prosecution expert elicited from Mr. Woodruff ~ e.g., that it was “a stupid idea for him to be labeled as retarded” (RT 23:4867) — would have been admissible in the guilt phase. And, the jury would have had guidance about how to evaluate the importanceofthe full-scale IQ scores. Instead, the judge at Mr. Woodruff’s trial was compelled to oversee a mental retardation phase without any guidance from the higher courts or the legislature concerning standards and procedures for what that phase should look like, “what standard of proof would be required, who would have the People v. Woodruff, 8115378 Appellant’s Opening Brief199 burden of proof.” (RT B:516.) The jurors were instructed to make a decision about whether Mr. Woodruff was mentally retarded with only the mosttruncated, vague and incomprehensible of descriptions of what mental retardation is. A process so lacking in standards cannotpass constitutional scrutiny. “(Where the ultimate punishmentof death is at issue a system of standardless jury discretion violates the Eighth and Fourteenth Amendments.” (Gregg v. Georgia (1976) 428 U.S. 153, 195, fn. 47 [96 S.Ct. 2909].) Becausehe had no guidance,thetrial judge had to divine an ad hoc procedure, a blind guess as to what the Atkins decision required. Asa result, a jury with standardless discretion determined that Mr. Woodruff was not mentally retarded, despite substantial factual evidenceto the contrary. That arbitrary determination made Mr. Woodruff eligible for the death penalty, which the same jury would recommendthree days later.”’ Such standardless decision-making deprived Mr. Woodruff of his rights to a fairtrial, the heightened reliability required in death-penalty determinations, due process of law and equal protection of the laws, and againstarbitrary, capricious, cruel and unusual punishment underthe Sixth, Eighth and Fourteenth Amendmentsto the United States Constitution and 21 The jury determined on February 3, 2003, that Mr. Woodruff was not mentally retarded. (CT 19:5406.) The jury recommendeda death sentence on February 6, 2003. (CT 19:5474.) People v. Woodruff, §115378 Appellant’s Opening Brief00 P Article 1, sections 7, 15, 17, 24 and 29 of the California Constitution. The jury’s finding that Mr. Woodruff was not mentally retarded should be reversed. Consequently, Mr. Woodruff’s death sentence should be overturned. This case should be remandedtothetrial court for a mental retardation determination that comports with due process of law. Because the outcomeof the retardation phase made possible the penalty phase, Mr. Woodruff’s death sentence also should be reversed. People v. Woodruff, 8115378 301 Appellant’s Opening Brief CLAIM C2: Prosecutor made improper argument appealing to jurors’ prejudices about retardation; defense counselfailed to object. The experienced prosecutor committed prejudicial misconduct when he appealed to juror prejudices and stereotypes about mental retardation. Inexperienced defense counsel failed to object. Consequently, the jury’s verdict, which was contrary to the evidence presented, denied Mr. Woodruffhis state and federal constitutional rights to a fair trial, effective assistance of counsel, the heightened reliability required in a death-penalty case, and due processof law. Facts The mental retardation phase of Mr. Woodruff’s trial took a portion of one day and only 70 pagesoftrial transcript. (RT 26:5292-5361.) The defense put on one witness, psychologist Curtis Booraem. The prosecution called no witnesses. In closing argument, prosecutor Michael Soccio asserted: “If a person doesn't look retarded oract retarded,it's because they're not retarded. It doesn't take any professional to let you knowthat.” (RT 26:5344.) Defense counsel raised no objection to the comment. People v. Woodruff, $115378 202 Appellant’s Opening Brief Discussion Whether Mr. Woodruff meets the legal definition of “mentally retarded” has nothing to do with how he“looks”or “acts.” In Atkinsv. Virginia, supra, 536 U.S. 304, in which the United States Supreme Court held that executing a mentally retarded defendant would violate the Eighth Amendment, the Court relied on the definitions of the American Association of Mental Retardation (AAMR) and what the Court characterized as the “similar” definition of the American Psychiatric Association (APA). The AAMRdefinition, the more concise of the two, said: Mental retardation refers to substantial limitations in present functioning. It is characterized by significantly subaverage intellectual functioning, existing concurrently with related limitations in two or moreof the following applicable adaptive skill areas: communication,self-care, homeliving, social skills, community use, self-direction, health and safety, functional academics, leisure, and work. Mental retardation manifests before age 18. (American Association of Mental Retardation, Mental Retardation: Definition, Classification, and Systems ofSupports (9th ed.1992), quoted in Atkins, at p. 308, fn. 3.) Thus, the three essential criteria for mental retardation were “subaverageintellectual functioning,” two or more “adaptive skill” deficits People v. Woodruff, 8115378 903 Appellant’s Opening Brief and onset before age 18.78 None ofthese three criteria depended on physical appearance. Whatis important is how a person thinks. Someone could “look” and “act” like an average person andstill meetall three Atkins criteria for mental retardation. The prosecutor in Mr. Woodruff’s trial was well aware ofthe legal definition of mental retardation, as the Atkins decision had been issued more than seven monthsbefore the mental retardation phase, and yet he urged the jurors to ignore the facts, and the law, and vote in accordance with their prejudices. More than 75 years ago, the United States Supreme Court commentedthat while a prosecutor “maystrike hard blows,heis not at liberty to strike foul ones. It is as muchhis duty to refrain from improper methods calculated to produce a wrongful convictionasit is to use every legitimate meansto bring abouta just one.” (Berger v. United States, supra, 295 U.S.at p. 88.) This Court has said, “Although prosecutors have widelatitude to draw inferences from the evidence presentedattrial, mischaracterizing the *8 Penal Codesection 1376, enacted in 2003 after Mr. Woodruff’s trial, says ““mentally retarded’ means the condition of significantly subaverage generalintellectual functioning existing concurrently with deficits in adaptive behavior and manifested before the age of 18.” In 2005, this Court concluded that post-conviction claims of mental retardation “should be adjudicated in substantial conformance with the statutory model.” (In re Hawthorne (2005) 35 Cal.4th 40, 44 [24 Cal.Rptr.3d 189, 105 P.3d 552].) The Legislature derived its standard from the AAMRand APAstandards quoted in Atkins. (Hawthorne, at p. 47.) People v. Woodruff, S115378 904 Appellant’s Opening Brief evidence is misconduct. (Citations omitted.) A prosecutor's ‘vigorous’ presentation of facts favorable to his or her side ‘does not excuse either 999deliberate or mistaken misstatements of fact.’” (People v. Hill, supra, 17 Cal.4" at p. 823, quoting People v. Purvis (1963) 60 Cal.2d 323, 343 [33 Cal.Rptr. 104, 384 P.2d 424].) This Court also has said “mental retardation is a question of fact. (Citations omitted.) It is not measured accordingto a fixed intelligencetest score or a specific adaptive behavior deficiency, but rather constitutes an assessment of the individual's overall capacity based on a consideration of all the relevant evidence.” (In re Hawthorne, supra, 35 Cal.4"at p. 49.) In Hawthorne, this Court relied on the assessments of two mental health experts, one of whom had reviewed “a substantial amount of background material relating to petitioner's upbringing, educational performance, family environment, adaptive behavior, and mental condition[,]” and had conducted a comprehensive neuropsychological evaluation, a mental status examination, and a clinical review. The other expert had interviewedthe petitioner and had reviewed data compiled by other experts, including “historical, medical, psychological and educational information.” Based on the evidentiary showing, this Court found the petitioner wasentitled to an evidentiary hearing on the issue of mental retardation. (Hawthorne,at p. 51.) People v. Woodruff, $115378 Appellant’s Opening Brief20 pening In Hawthorne,this Court said the key to determining mental retardation is “overall capacity.”” However, when the prosecutor in Mr. Woodruff’s trial defined mental retardation as something that could be readily seen, he appealed to the jurors’ uninformed stereotypes of what mentally retarded people look like. It was a foul blow,a deliberate misstatementof fact. ‘A prosecutor's conduct violates the federal Constitution whenit infects the trial with unfairness, and violates state law if it involves the use of deceptive or reprehensible methods of persuasion.” (People v. Booker (2011) 51 Cal.4" 141, 184 [119 Cal.Rptr.3d 722, 245 P.3d 366].) At Mr. Woodruff’s trial, the prosecutor’s argument to the jury in the retardation phaseinfected the trial with unfairness becauseit urged the jurors to rule against the defendant not on the basis of the evidence presented, but based on the basest of the jurors’ prejudices. Such a proceeding does not meet the requirementof heightenedreliability of guilt and penalty determinationsin a death-penalty case. (Woodson v. North Carolina, supra, 428 U.S.at p. 305.) To preserve such a claim for appeal, “a defendant must make a timely objection and ask the trial court to admonish the jury to disregard the remark (or conduct) unless such an admonition would not have cured the harm. (Citation omitted.) When the claim focuses on the prosecutor's comments to the jury, we determine whether there was a reasonable People v. Woodruff, S115378 206 Appellant’s Opening Brief likelihood that the jury construed or applied any of the remarksin an objectionable fashion.” (People v. Booker, supra, 51 Cal.4"at pp. 184- 185.) Defense counsel Mark Blankenship madeno objection to the prosecutor’s reprehensible remarks, which was consistent with defense counsel’s incompetencein failing to defend and preserve Mr. Woodruff’s rights throughoutall phasesofthe trial. In failing to make an objection, Blankenship provided prejudicial ineffective assistance, in that the jury was free to follow the prosecutor’s lead and rule against Mr. Woodruff based on bias instead of fact. Thereis a reasonable likelihoodthat the jurors did as the prosecutor urged them to do and ignored the evidence of mental retardation. The jury did find that Mr. Woodruff was not mentally retarded, and reachedthat decision in no more than two hoursofdeliberations, including whatever break they may have taken for lunch.”’ (CT 19:5405.) Nevertheless, an admonition would not have cured the harm. Once the jurors had been encouragedbythe prosecutor to ignore the facts and employ their own prejudices about mentalretardation, no admonition by the judge could have undone the damage. ” The clerk’s minutes indicate the jury retired to deliberate at 11:26 a.m. and announcedat 1:30 p.m.that a verdict had been reached. (CT 19:5405.) People v. Woodruff, $115378 907 Appellant’s Opening Brief As a consequenceof the prosecutor’s misconduct, and defense counsel’s ineffective assistancein failing to recognize and objectto the misconduct, Mr. Woodruff wasdeniedhis rights to a fair trial, effective assistance of counsel, the heightenedreliability required in death-penalty cases, and due process of law, under the Sixth, Eighth and Fourteenth Amendments to the United States Constitution, and Article 1, sections 7, 15, 17, 24 and 29 of the California Constitution. Mr. Woodruff was denied a mental retardation phase untainted by prosecutorial misconduct and resulting juror prejudice. Consequently, the jury’s finding that Mr. Woodruff was not mentally retarded should be reversed. Because the outcomeof the retardation phase made possible the penalty phase, Mr. Woodruff’s death sentence also should be reversed. People v. Woodruff, $115378 208 Appellant’s Opening Brief D. Penalty phase CLAIM D1: Prosecutor improperly appealed to jurors’ biases in penalty-phase opening statement. The prosecutor committed misconductin his penalty-phase opening statementby suggesting that jurors could considertheir religious values in determining the proper penalty verdict and could properly makeuptheir minds about the penalty without hearing any penalty-phase evidence. Such comments encouraged the jurors to violate their oaths and vote for a death penalty based on prejudice and religious intolerance. As a consequence, Mr. Woodruff was denied his state and federal constitutional rights to a fair penalty phase,the heightenedreliability required in death-penalty cases, and dueprocessoflaw. Facts In his penalty-phase opening statement, on February 4, 2003, prosecutor Michael Soccio said one of the aggravating factors the jurors could consider in the penalty phase wasthe circumstancesofthe crime. “That's all. That, in and of itself. Doesn't have to say that he had a bad history, doesn't have to have been a bad man, doesn't matter whether he's a Christian, non-Christian. Those things are for you to take and to weigh for yourselves.” (RT 26:5378.) The prosecutor concluded his opening statement by advising the jurors that the judge would give them instructions on whatto consider. “And then you'll be asked, death or not death. By People v. Woodruff, 8115378 209 Appellant’s Opening Brief then, you'll know,if you don't already, what the correct verdict will be.” (Ibid.) Discussion This Court has said prosecutorial misconduct“implies a deceptive or reprehensible method of persuading the court or jury.” (People v. Price, supra, 1 Cal.4" at p. 448.) This Courtalso has said a referencetoreligious authority is improper,in that it “tends to diminish the jury's sense of responsibility for its verdict and to imply that another, higher law should be applied in capital cases, displacing the law in the court's instructions.” (People v. Wrest (1992) 3 Cal.4" 1088, 1107 [13 Cal.Rptr.2d 511, 839 P.2d 1020].) Prosecutorial misconductis reversible under the United States eee Constitution whenit “‘so infect[s] the trial with unfairness as to make the 999resulting conviction a denial of due process.’” (Darden v. Wainwright, supra, 477 U.S. at p. 181.) In penalty-phase comments to the jurors in Mr. Woodruff’s trial, the prosecutor used the samerhetorical device — paraleipsis — that this Court condemnedin Wrest: “Repetition of the statement, ‘I am not arguing X,’ strongly implied the prosecutor wasin fact asserting the validity and relevance of X, but, for lack of time, was concentrating on other, presumably more importanttopics.” ([bid.) In this case, the prosecutor’s repetition involved his supposedassertionsthat it “doesn’t matter” whether Mr. Woodruff had a bad history, was a bad man or “whether he’s a People v. Woodruff, 8115378 Appellant’s Opening Brief21 Christian, non-Christian.” However, the prosecutor immediately negated the supposed assertion that those things did not matter by advising the jurors, “Those things are for you to take and to weigh for yourselves.” (RT 26:5378.) Thus, the prosecutor wasactually saying it was acceptable for the jurors to consider whether they believed Mr. Woodruff was a “Christian, non-Christian,” and take that “thing” into accountin their decision on the appropriate penalty. Furthermore, the prosecutor implicitly told the jurors that it was acceptable to make up their minds to vote for the death penalty without hearing any evidence in the penalty phase whenhesaid they would know later in the penalty phase, “if you don't already, what the correct verdict will be.” ([bid.) Such appeals to religious intolerance and prejudice constitute reprehensible prosecutorial misconduct. To suggest that jurors ought to consider whether Mr. Woodruff was a Christian or non-Christian in their penalty decision is an outrageous appealto religious intolerance, and more broadly an appealfor insiders to shun an outsider. To suggest that jurors may have enoughinformation to vote for the death penalty without hearing any evidence regarding aggravating and mitigating factors is to suggest that some crimes carry an automatic death penalty, regardless of evidence in mitigation. An automatic death penalty was held unconstitutional in Woodsonv. People v. Woodruff, $115378 911 Appellant’s Opening Brief North Carolina, supra, 428 U.S. 280. In Woodson, the Supreme Court said an automatic death-penalty scheme “departs markedly from contemporary standards respecting the imposition of the punishment of death and thus cannot be applied consistently with the Eighth and Fourteenth Amendments’ requirement that the State’s power to punish ‘be exercised 299within the limits of civilized standards.’” (/d., at p. 301, quoting Trop v. Dulles (1958) 356 U.S. 86, 100 [78 S.Ct. 590].) Such a proceeding does not meet the requirementof heightenedreliability of the penalty determination in a death-penalty case. (Woodson,at p. 305.) At Mr. Woodruff’s trial, the prosecutor urged the jurors to adopt such an automatic death-penalty schemein their deliberations and to vote for death based on the evidence they hadheard in the guilt phase alone. By doing so, and by appealingto religious intolerance, the prosecutor denied Mr. Woodruff a fair penalty trial, due process of law and the heightened reliability required in death-penalty determinations underthe Sixth, Eighth and Fourteenth Amendmentsto the United States Constitution and Article 1, sections 7, 15, 17, 24 and 29 of the California Constitution. This Court has held that generally “a defendant may not complain on appeal of prosecutorial misconductunless in a timely fashion — and on the same ground — the defendant madean assignment of misconduct and requested that the jury be admonished to disregard the impropriety.” However, a “defendant will be excused from the necessity of either a timely People v. Woodruff, 115378 912 Appellant’s Opening Brief objection and/or a request for admonition if either would be futile ... [or] if an admonition would not have cured the harm caused by the misconduct.” (People vy. Hill, supra, 17 Cal.4" at p. 820.) At Mr. Woodruff’s trial, defense counsel made no objection to the two examples of prosecutorial misconduct cited above. However,no instruction could have overcome the prosecutor’s insidious suggestion that jurors follow their own biases and ignore any evidence in mitigation. To the extent that defense counsel should have objected to the prosecutor’s comments, his failure to do so is another example among manyofhis prejudicial ineffective assistance, which denied Mr. Woodruffa fair trial and due processof law. (Strickland v. Washington, supra, 466 U.S. 668.) Because Mr. Woodruff was denied a fair and reliable penalty phase, both by prosecutorial misconduct and by defense counseltoo ineffective to put a stop to it, Mr. Woodruff’s death sentence should be overturned. He should be granted a new penalty phase in compliance with state and federal constitutional protections. People v. Woodruff, 8115378 Appellant’s Opening Brief21 CLAIM D2: Trial judge allowed hearsaytestimony at penalty phase, which violated Mr. Woodruff’s right to confront witness against him. During the penalty phase,the trial judge allowed the prosecution to present hearsay testimony from two law enforcement officers who had interviewed an absent witness about an alleged prior violent incident. The trial judge would not allow the jury to learn that the absent witness had mental health issues that prevented him from testifying. The judge’s errors violated Mr. Woodruff’s state and federal constitutional rights to confront a witness against him. These errors also denied Mr. Woodruff the heightened reliability of a sentencing determination required in a death-penalty case, equal protection of the laws, and due process of law. Facts Overdefense objection on confrontation and due process grounds (RT 27:5538-5545), the trial judge allowed two law enforcementofficers to testify at the penalty phase of Mr. Woodruff’s trial about what a man had told them aboutan altercation in Pomona more than three yearsearlier. Thefirst of the hearsay witnesses was Pomonapolice officer Richard Machado, whom the judge allowedto testify at the penalty phase based on Machado’s refreshed recollection from a report Machado had written at the time of the 1999 incident. (RT 27:5560.) Machadotestified on February 5, 2003, that he had gone to PomonaValley Hospital on December 23, 1999, to take a statement from a man heidentified as Eddie People v. Woodruff, $115378 314 Appellant’s Opening Brief Phillips, who wasbeing treated at the hospital for a gunshot wound. (RT 27:5557-5558.) Before Machadotestified, the trial judge alerted the jury that Machado’s testimony would normally be excluded as hearsay, but he would be allowedto testify under an exception because the declarant was unavailable because he washospitalized in Mississippi and under doctors’ orders notto travel. (RT 27:5556.) The judge denied a defense requestto tell the jury that the unavailable declarant, whom the prosecution identified as Mario Brooks, had checked himself into a veterans hospital’s psychiatric unit and wasplaced on a 72-hour hold due to a psychotic episode. (RT 26:5464; RT 27:5545-5547.) Machadotestified that he had no idea whether Eddie Phillips and Mario Brooks were the same person. Machadosaid his report identified the person making the statementto him as Eddie Phillips and made no mention of Mario Brooks. (RT 27:5561.) Machadotestified that Eddie Phillips told him he had beensitting in the passenger seat of a mini-van when Mr. Woodruff approachedandtried to hit him with an object, possibly a bottle. (RT 27:5559.) Machado said Phillips said he had argued with Mr. Woodruff twoto three days earlier about a girlfriend and Mr. Woodruff told Phillips they would meet again. Machadosaid Phillips told him Mr. Woodruff drove a white Mercedes, with “CASH”license plate. (RT 27:5560.) Machadosaid he checked with People v. Woodruff, 8115378 Appellant’s Opening Brief21 pening a police dispatcher but could not locate a white Mercedes with such a license plate. (RT 27:5563.) Thetrial judge held that the 1999 statements to police were admissible under Evidence Code sections 240 and 1370 because Brooks was unavailable as a witness, even though the statements were “very highly prejudicial hearsay.” (RT 26:5535; RT 27:5548, 5552.) The judge said the 1999 statements’ trustworthiness was akin to a spontaneous declaration because the statements were madeatthe time of the incident and were reported to responding law enforcementofficers. (RT 27:5552.) Thetrial judge limited the admissible testimony to Brooks’ purported statement that Mr. Woodruff was the individual who struck him with a bottle, and a description of the injuries he received as a result. (RT 27:5548.) The judge said anything relating to Mr. Woodruff’s attempt to strike Brooks and any statements Brooks made identifying Mr. Woodruff, and evenanaltercation leading up to the incident involving a threat would be admissible. (RT 27:5550.) The prosecutor said Brooks gave later statements with significantly different accounts of what happened in Pomona. Thetrial judge ruled those statements inadmissible. (RT 27:5552.) The second law enforcementofficer to testify about what he had been told about the Pomonaincident wasthe prosecutor’s investigator, Martin Silva. Over defense objection, Silva testified that he had talked with People v. Woodruff, S115378 916 Appellant’s Opening Brief Brooksin Jackson, Mississippi. (RT 27:5570.) Silva testified that prosecution witness Freddy Williamsonhadtold Silva that Williamson had goneto an address in Pomonawith “the person who I knew as Mario 3 Brooks*”” and two womento buy marijuana. (RT 27: 5572.) Silva testified that Williamson told him Mr. Woodruff ‘“‘could have been” oneof three men who chased Brookson that occasion. (RT 27:5573.) WhenBlankenship soughtto offer Brooks’ felony record into evidence, the prosecutor questioned the relevance, because the judge had stopped the prosecutor from asking if Brooks and Phillips were the same person. The judge suggested to Blankenship that if he wanted Brooks’ criminal record in evidence, he oughtto stipulate that Brooks and Phillips were the same person. Blankenship said he would do so. (RT 27:5693.) Discussion Amongthe federal constitutional rights belonging to a criminal defendantis the right “to be confronted with the witnesses against him.” (U.S. Const., 6™ amend.) The confrontation clause’s “ ultimate goalis to ensurereliability of evidence, butit is a procedural rather than a substantive guarantee. It commands,notthat evidencebereliable, butthatreliability be assessed in a particular manner:bytesting in the crucible of cross- *° Williamsontestified that he knew the person in the Pomonaincident only as “Tank.” Williamson said he did not know Mario Brooks’ legal name until the prosecutor told him. (RT 27:5523.) . People v. Woodruff, 8115378 217 Appellant’s Opening Brief examination.” (Crawford v. Washington (2004) 541 U.S. 36, 61 [124 S.Ct. 1354].) Wheretestimonial evidenceis at issue, “the Sixth Amendment demands whatthe commonlaw required: unavailability and a prior opportunity for cross-examination.” (Ibid.) In Crawford, the Supreme Court held that the term “testimony” applied to police interrogations. (/bid.) In Crawford, a testimonial statement to police had been admittedat trial against the defendant, despite the fact that the defendant had no opportunity to cross-examine the non-testifying witness. “That alone is sufficient to makeout a violation of the Sixth Amendment,” the Supreme Court said. (Id., at p. 68.) That is precisely the circumstance in Mr. Woodruff’s case. Over defense objection, the trial judge allowed a Pomonapoliceofficerto testify that he took a statement in 1999 from a man named Eddie Phillips. The officer testified that Phillips told him the he had argued with Mr. Woodruff abouta girlfriend and twoor three days later Mr. Woodruff hadtried to hit Phillips with an object Phillips believed to be a bottle. (RT 27:5560, 5562.) At no timeprior to the penalty-phase testimony had Mr. Woodruff had an opportunity to cross-examine Phillips, as required by Crawford, because no charges were everfiled in connection with the 1999 incidents. Moreover, more hearsay testimony from two other prosecution witnesses was necessary to make the connection that the Eddie Phillips of the 1999 People v. Woodruff, 115378 218 Appellant’s Opening Brief Pomonapolice report was in fact Mario Brooks, the witness who became unavailable to testify when he checked himself in to the psychiatric unit of a veterans hospital in Mississippi the night before he wasto testify. (RT 26:5523; RT 27:5570-5572.) Notonly did the prosecution use the non-appearance of Phillips/Brooksto introduce his statement about a purported violent act in 1999, but also to introduce other prejudicial information against Mr. Woodruff. (RT 26:5375-5376, 5520.) At closing argument, the prosecutor referred to the alleged Brooks incident as evidence that Mr. Woodruff “hurts people wheneverhe needsto.” (RT 27:5733.) At Mr. Woodruff’s sentencing,the trial judge said the 1999 Pomona incident “demonstrates a history [of] violent criminal conductby the defendant.” (RT 28:5848.) The judge said it was not clear that Mr. Woodruff was one of the shooters of Brooks, but it was clear that Mr. Woodruff uttered an implied threat of force against Brookstwoto three days earlier when they argued about Brooks’ attempt to become involved with a female friend of Mr. Woodruff. The judge also said the evidence was uncontradicted that on the day of the shooting of Brooks, Mr. Woodrufftried to hit Brooks with a bottle or some glass device and attempted to forcibly remove Brooks from the van in which Brooks was a passenger. (RT 28:5848-5849.) People v. Woodruff, S115378 219 Appellant’s Opening Brief Thetrial judge erred in allowing what he characterized as “very highly prejudicial hearsay” to be presented without allowing Mr. Woodruff any opportunity to confront the witness or even to mention that the reason the witness was unavailable was that he was undergoing psychiatric treatment. The admission of such “very highly prejudicial hearsay” denied Mr. Woodruffhis rights to confront a witness against him,to a reliable sentence, to equal protection of the laws, and to due process of law under the Sixth, Eighth and Fourteenth Amendments to the United States Constitution, and Article I, sections 7, 15, 17, 24 and 29 of the California Constitution. As a result, Mr. Woodruff’s death sentence should be overturned. People v. Woodruff, 115378 220 Appellant’s Opening Brief CLAIM D3: Trial judge conducted further fact-finding before denying defendant’s automatic motion to modify penalty verdict. Thetrial judge exceededhis statutory authority by admitting and considering highly inflammatory andprejudicial unsworn testimonyat the hearing on the defendant’s automatic motion to modify the penalty verdict. Thetrial judge also improperly considered the probation report in ruling on the automatic motion. Consequently, the resulting death sentence violated Mr. Woodruff’ s state and federal constitutionalrightsto a fairtrial, to heightenedreliability in sentencing in a death-penalty case, to a sentence limited to factors considered by a jury, and to due process of law. a. Unsworn testimony Facts Judge Christian Thierbach allowed the unsworntestimony of seven persons, four of them relatives of the shooting victim, during thehearing on the automatic motion to modify the penalty verdict on April 17, 2003. Prosecutor Michael Soccio presented five witnesses,all urging the trial judge to uphold the jury’s death verdict. The first witness was Charles JacobsJr., the shooting victim’s father, who repeatedly used the rhetorical refrain, “Make no mistake, I am angry,” to punctuate his emotional comments. Jacobs concluded: “Steven Woodruff murdered my son. As there was no remorse,there will be no forgiveness[,] no compassion, no People v. Woodruff, 8115378 Appellant’s Opening Brief221 g nobility. For the maiming of the Baker family, for the murder of my son, for the total destruction of our family, Steven Woodruff must die. Make no mistake, I am angry.” (RT 28:5816-5819.) The second witness was the shooting victim’s mother, Cathy Miller, whoconcludedwith a direct appeal to the judge: “Judge Thierbach,I respectfully ask that you honor the recommendation of the jury and impose the death penalty upon this convicted murderer, Steve Woodruff. Heis despicable and needs to be punished with this maximum punishment.” (RT 28:5822.) The third witness was the shooting victim’s widow, Tamara Jacobs, whosaid she sat through every day ofthe trial. “I searched for but never saw that man express onebit of regret or remorse for murdering my husband. I saw him try to make excuses andlie to get himself out of trouble. You were here. You saw it. His only regretis that his life is over. He's right about that. Killing any officer in the line of duty is reason enough to give any personin a civilized society the death penalty.” (RT 28:5823.) The fourth witness was Tara Schofield, the shooting victim’s sister. She said Mr. Woodruff had “wreaked havoc on our community andleft behind a lot of torn lives and broken hearts. And for that reason, he must be dealt with accordingly.” (RT 28:5827.) People v. Woodruff, 8115378 Appellant’s Opening Brief222 PP The prosecution’s fifth and final witness was Officer Benjamin Baker’s wife, Yvonne Baker, who spoke to Mr. Woodruffdirectly: “I just want you to knowthat I wish in all my heart that my husband had shot you dead. I believe in life for life, and I don't think you should have the luxury ofsitting in that cell while Doug's bodylies in his grave. You are the [epitome] of evil, and I can say that I sincerely hate you.” (RT 28:5830.) Mr. Woodruff’s brother John Woodruff, as well as Mr. Woodruff himself, spoke in support of the motion to modify the penalty verdict. John Woodruff asked the judge to spare his brother’s life, concluding: “I will pray, and I hope that you pray before you take this heavy decision on your shoulder and go to Jehovah Godin actual guidancing [sic] to him.” (RT 28:5834.) Mr. Woodruff, havingtestified at the guilt phase that it was Officer Baker’s bullet and not his ownthat killed the victim (RT 20:4213), addressed his remarks to Baker, suggesting Baker “allowed evil to come in yourlife, and it will destroy you, Baker. ... But it eats you up inside, Baker. Whynot[] tell the truth?” (RT 28:5836.) Baker,sitting in the courtroom during the penalty modification hearing, shouted at Mr. Woodruff: “Look at the evidence. Look at the video. January 13th. ... You were a coward on January 13th.”(Ibid.) People v. Woodruff, S115378 223 Appellant’s Opening Brief Judge Thierbachtried to restore order to the courtroom,telling both mento be silent. To Baker, the judge said, “I know howyoufeel. I don't wantto have to ask you to leave, but maintain your composure.” (Ibid.) The judge turned to Mr. Woodruff andtold him,“[I]f you want me to consider anything you haveto say, address your thoughts to me; otherwise, I'm gonnacutthis off.” (Zbid.) | Mr. Woodruff was able to complete his comments without further incident, concluding: “I did not kill that man, Your Honor. I did notdoit, as God is my witness. That's all I can say.” (RT 28:5838.) The judge offered the prosecutor a chance to argue against the motion, which he declined. (RT 28:5838.) Defense attorney Mark Blankenship addressed the court, urging the judge to modify the verdict. (RT 28:5839-5841.) The prosecutor then asked to speak, saying he had not been in any condition earlier to do so when the judge offered him the opportunity. Granted another chance, the prosecutor said what the judge witnessed in the hearing, especially from Mr. Woodruff, was the continuing victimization of Officer Baker and the Jacobs family. (RT 28:5841.) The judge said Mr. Woodruff’s words would speak for themselves. ([bid.) The judge called a recess. “J will take into account the comments I have heard this morning, as well [as] the written brief, which I will order filed.” (RT 28:5842.) After the recess, the judge denied the automatic motion. (RT 28:5850.) People v. Woodruff, S115378 224 Appellant’s Opening Brief Discussion Penal Codesection 190.4, subsection (e), provides for an automatic motion to modify a jury’s death verdict, without further fact-finding. “In ruling on the motion,the trial court must independently reweigh the evidence of aggravating and mitigating factors presentedat trial and determine whether,in its independent judgment, the evidence supports the death verdict.” (People v. Steele (2002) 27 Cal.4™ 1230, 1267 [120 Cal.Rptr.2d 432, 47 P.3d 225].) This Court hassaid trial court has a “duty to consider only those materials that had been presented to the jury in ruling on the section 190.4(e) motion.” (People v. Ray (1996) 13 Cal.4™ 313, 361 [52 Cal.Rptr.2d 296, 914 P.2d 846](emphasis added).) A trial court’s ruling on a modification motionis properif it is “based solely on the evidence presentedattrial.” (People v. Smith (2003) 30 Cal.4" 581, 640 [134 Cal.Rptr.2d 1, 68 P.3d 302](emphasis added).) The United States Supreme Courthassaid a trial judge in a death- penalty case cannot engagein additional fact-finding after the jury reaches its penalty verdict. The “rightto trial by jury guaranteed by the Sixth Amendment would be senselessly diminishedif it ... [did not encompass] the factfinding necessary to put [a defendant] to death.” (Ring v. Arizona (2002) 536 U.S. 584, 609 [122 S.Ct. 2428, 153 L.Ed.2d 556].) People v. Woodruff, 8115378 225 Appellant’s Opening Brief Mr. Woodruff’s right to trial was diminished by the sentence modification hearing and the judge’s premature review of the probation report, neither of which met the requirementof heightenedreliability of a penalty determination in a death-penalty case. (Woodson v. North Carolina, supra, 428 U.S.at p. 305.) At Mr. Woodruff’s trial, the trial judge’s decision to deny the automatic motion to modify the penalty verdict was not based on “only those materials that had been presented to the jury” or “solely on the evidence presentedattrial,” as this Court requires. Thetrial judge explicitly said in open court that he would “take into account the comments I have heard this morning”at the modification hearing in reaching his decision to modify the jury’s death-penalty verdict. (RT 28:5842.) The comments the judge took into account, which were made in court more than two monthsafter the jury had been excused, were highly emotional and inflammatory, unsworn and not subject to cross- examination. Four of the five who spokein favor of the death penalty were close relatives of the victim, the other the wife of the surviving police officer in the shooting incident. Two of the witnesses who gave unsworn comments on the automatic motion — the victim’s father, Charles D. Jacobs Jr., and sister, Tara Schofield — did nottestify in front of the juryatall. Officer Baker added to the prejudicial atmosphere, shouting at Mr. Woodruff, “You were a coward on January 13th.” (RT 28:5836.) The People v. Woodruff, 3115378 226 Appellant’s Opening Brief judge wasclearly influenced by the inflammatory atmosphere,telling Officer Baker in response to Baker’s outburst, “I know how youfeel.” (Ibid.) Byallowing the unsworn testimony, which the jury did not hear and the defense could not confront, the trial judge violated Mr. Woodruff’ s rights to a fair trial, to confront witnesses against him, to heightened reliability in a death-penalty case, and to due process of law under the Sixth, Eighth and Fourteenth Amendments to the United States Constitution and Article 1, sections 7, 15, 17, 24 and 29 of the California Constitution. b. Probation report Facts Immediately after rejecting the automatic motion, Judge Thierbach proceeded to sentencing. The judge said he had read and considered the probation report of Probation Officer Lorena Gonzalez. (RT 28:5850; CT 19:5511-5522.) The probation officer had cautioned that the summary of facts of the case in her probation report was taken largely from a Riverside police report “and maynotaccurately reflect the evidence and testimony presentedattrial.” (CT 19:5513.) Nonetheless, she offered her opinion to the trial judge that “the punishmentin this matter, as fixed by the jury and prescribed by law, appears appropriate.” (CT 19:5521.) People v. Woodruff, 8115378 Appellant’s Opening Brief227 Discussion This Court has repeatedly held that "in ruling upon an automatic motion for modification of the penalty, the trial court may consider only the evidence before the jury, and that therefore it is error to consider the probation report, a matter not before the jury.” (People v. Bradford, supra, 15 Cal.4"at p. 1381, quoting People v. Crittenden (1993) 9 Cal.4" 83, 151 [36 Cal.Rptr.2d 474; 885 P.2d 887].) Furthermore, basing a sentencing decision on factors in the probation report that were not considered by the jury violates the jury-trial guarantee of the Sixth Amendmentto the United States Constitution. (Cunningham v. California (2007) 549 U.S. 270, 274-275 [127 S.Ct. 856]; Apprendi v. New Jersey (2000) 530 U.S. 466 [120 S.Ct. 2348, 147 L.Ed.2d 435]; Ring v. Arizona, supra, 536 U.S. 584; Blakely v. Washington (2004) 542 U.S. 296 [124 S.Ct. 2531, 159 L.Ed.2d 403]; United States v. Booker (2005) 543 U.S. 220 [125 S.Ct. 738, 160 L.Ed.2d 621].) In Crittenden, “there was no recess betweenthe proceedingsat whichthetrial court considered the motion to modify and the proceedings at which it imposed sentence.” Consequently, it appeared to this Court “that at the time it reviewed and ruled upon the application for modification of the penalty the court already had read and considered the probation report.” (People vy. Crittenden, supra, 9 Cal.4" at p. 151.) The same sequence of events occurred at Mr. Woodruff’s trial. (RT 28:5850.) People v. Woodruff, S115378 228 Appellant’s Opening Brief In Crittenden, this Court found a lack of prejudice, concluding that the trial court, in ruling on the motion to modify the death verdict, “made its determination in reliance upon the evidence submittedattrial.” (/d., at p. 152.) However, in People v. Lewis, supra, 50 Cal.3d 262,this Court said the case had to be remandedfor reconsideration of the automatic motion because “the probation report contained prejudicial information about defendant's juvenile record and prior involvementin [an adult felony] — information that would not otherwise have been known.” (Lewis, supra, 50 Cal.3d at p. 287.) Mr. Woodruff’s probation report included juvenile adjudications for robbery, battery and assault with a deadly weapon,as well as four adult misdemeanorconvictions, none of which had been introducedattrial, and which bolsteredthetrial judge’s expressed view regarding the motion for modification of the jury’s verdict that Mr. Woodruff was “nothing more than a street thug whowill resort to violence in an effort to get what he wants.” (CT 19:5515; RT 28:5848.) Additionally, the probation officer commented on a post-trial interview with Mr. Woodruff, in which he “expressed remorse only for himself — for having been deprived of his own life and children. ... The defendant’s actionsare indicative of a callousness and complete disregard for humanlife; he lay in wait, and then fired shots at the officers, who were unaware of the impendingattack.” (CT 19:5520- 5521.) People v. Woodruff, S115378 929 Appellant’s Opening Brief The information in the probation report about Mr. Woodruff’ s juvenile record (CT 19:5515), the characterizations of Mr. Woodruff throughoutthe report, and the report’s conclusion that the jury’s death verdict “appears appropriate” (CT 19:5521) were all highly prejudicial to Mr. Woodruff. The judge’s error in reading and considering the probation report before considering the automatic motion to modify the jury’s verdict violated Mr. Woodruff’s rights to a fair trial, to heightened reliability in sentencing in a death-penalty case, to a sentence limited to factors considered by a jury, and to due process of law under the Sixth, Eighth and Fourteenth Amendmentsto the United States Constitution, and Article 1, sections 7, 15, 16, 17, 24 and 29 of the California Constitution. Onthis claim, Mr. Woodruff’s case should be remandedto thetrial court for reconsideration of the automatic motion to reduce the jury’s verdict. People v. Woodruff, 8115378 Appellant’s Opening Brief1p E. Structural CLAIM E: Trial record wasfalsified in multiple places, casting doubt on veracity of entire record. The reporter’s transcript of Mr. Woodruff’s trial wasfalsified in multiple places, creating the illusion of a complete transcript when in reality it was repeatedly a “cut and paste” of what had been reported earlier. The falsification of the trial transcript madea reliable appellate process impossible. Consequently, it violated Mr. Woodruff’s state and federal constitutional rights to a fair trial, to the heightenedreliability required in death-penalty proceedings, to equal protection of the laws, and to due process of law. Facts In at least 11 places in the reporter’s transcript of Mr. Woodruff’s trial, what appears to be happeningattrial is a copy of what had been reported in an earlier section of transcript. In the sectionsof trial transcript coveringthe trial court’s instructions to potential jurors, the court reporter copied the transcript from the first panel of jurors to appear on March18, 2002, and pasted that verbatim account for subsequent jurors appearing later that day and the next. Whenjury selection resumed on November7, 2002, so did the court reporter’s “cut and paste” practice, thus misrepresenting what actually happenedin jury selection. People v. Woodruff, 8115378 231 Appellant’s Opening Brief Thetrial transcript indicates that the portion ofthe trial judge’s colloquy to the first panel on March 18, 2002, which wasreportedfirst at RT 1:143, line 10, through RT 1:144, line 13, was repeated verbatim to the second,third, fourth and fifth panels. (RT 1:200, line 10-1:201, line 13; RT 1:249, line 8-1:250, line 11; RT 1:297, line 12-1:298, line 15; RT 1:345, line 19-1:346, line 22.) The telling excerptis a repetition of an error, when the trial judge misspoke, using “personally” when the intended word was “reasonably”: Further, that in the commission of that offense, the defendant knew orpersonally — excuse me, knew or reasonably should have knownthatthe victim was a peace officer engaged in the performanceofhis duties. (RT 1:144, lines 4-7 (Emphasis added).) The transcript purports that this Court made precisely the same misstatement underlined above — “knew or personally — excuse me, knew or reasonably” — again to the second,third, fourth and fifth panels. (RT 1:201, lines 4-7; RT 1:250, lines 2-5; RT 1:298, lines 6-9; RT 1:346, lines 13-16.) Anotherportion of the colloquy that first appears in the transcript of the first panel on March 18, 2002 (RT 1:192, line 19, through RT 1:196, line 12), allegedly was repeated verbatim,includingerrors, to the second, third and fourth panels, on March 18, 2002, andto the fifth panel, on March People v. Woodruff, 83115378 332 Appellant’s Opening Brief 19, 2002.*! Noneoftheerrorsin this section are as glaring as the previous example. A reference to “murders” at RT 1:193, line 8°”, should be “murderers”; a reference to “probability of parole” at RT 1:193, lines 14- 15°°, should be “possibility of parole”; and a reference to the “jury find”at RT 1:195,line 10°’, should be “jury finds”. Collectively, however, they demonstrate a pattern of error notlikely to occurin five consecutive colloquies by random chance. However, the “cut and paste” manipulation ofthe trial transcript did not end on March 19, 2002. When the second attempt to time-qualify jurors began on November7, 2002,thetrial judge was quotedastelling the first panel of prospective jurors: In CountII, the Grand Jury alleges that — I’m sorry. Before we get to CountII, the Grand Jury further charges that in the commission of the offense set forth in CountI, the defendant murdered Charles Douglas Jacobs for the purpose of avoiding or preventing a lawfularrest, or perfecting or attempting to perfect an escape from lawful custody within the meaning of Penal Code Section 190.2 Subdivision (a) Subsection (5). (RT 2:627, line 24-2:628, line 3 (Emphasis added).) The same “I’m sorry” interruption underlined above wasallegedly made again in an identical 3! See RT 1:241, line 25-1:245, line 18; RT 1:288,line 20-1:292, line 13; RT 1:336, line 18-1:340, line 11; RT 1:370, line 4-1:373, line 25. * Error also found at RT 1:242,line 14; RT 1:289, line 9; RT 1:337,line 7; RT 1:370, line 21. *? Error also found at RT 1:242, lines 20-21; RT 1:289, lines 15-16; RT 1:337, lines 13-14; RT 1:370, lines 27-28. * Error also found at RT 1:244,line 16; RT 1:291, line 11; RT 1:339,line 9; RT 1:372, line 23. People v. Woodruff, 8115378 233 Appellant’s Opening Brief colloquy to the third panel (RT 2:715, lines 2-9) and fourth panel (RT 2:760, lines 2-9) the same day. Lestall of these examples be attributed to coincidence, consider a paragraphthe trial judge allegedly read to the fourth andfinal panel on the afternoon of November7, 2002: Now,I’m going to read to you a brief statementto give you kind of an idea of what you can expectif you are in fact ultimately chosen as a juror in this case. Youare the first of potentially five panels of jurors this size who will beinthis courtroom throughout the day. And those of you who survive this process that you go through this morning will be asked to fill out a detailed questionnaire concerning your views, particularly on the issue of capital punishment. (RT 2:761, lines 13-21 (Emphasis added).) That paragraphis identical to one that appearsin the transcript as having beensaid earlierto the first panel of the day, which actually was in the morning. (See RT 2:629,lines 7-15.) Appellate counsel challenged the veracity of the reporter’s transcript in a motion for newtrial, filed in the trial court on November 21, 2008, in conjunction with an alternative motion to correct, augmentandsettle the record. In a hearing on appellant’s motion, respondent’s counsel disclosed that the court reporterattrial “is married to an assistantdistrict attorney ... within our office.” (SRT 5-6, March 12, 2009.) Thetrial judge responded with mocksurprise: “She is, really? I performed the ceremony. I know.” (SRT 6, March 12, 2009.) People v. Woodruff, 115378 234. Appellant’s Opening Brief At the March 2009 hearing,the trial judge acknowledged, “[T]here are undoubtedly examples of cut-and-paste and so on”in thetrial transcript. Nonetheless,the trial judge concluded,“[TJhere is no showing of deliberate falsification of anything in any ofthe transcripts,” and denied the motion for new trial. (SRT 14, March 12, 2009.) At a subsequenthearing to certify the record on appeal, the trial judge said he would “reiterate or reaffirm that earlier ruling and deny a motion for reconsideration” concerning the motion for newtrial based on the falsified trial transcript, thus preserving the issue for appeal. (SRT 2-3, January 8, 2010.) Discussion Although fabrication of the record is frequently alleged by pro per appellants and habeaspetitioners(see, e.g., People v. Chessman (1959) 52 Cal.2d 467, 475-476 [341 P.2d 679]; Stinchcomb v. People (1951) 102 Cal.App.2d 857, 858 [228 P.2d 588]), appellate counsel has found no published case in which an appellate court reversed a conviction for a fabricated trial transcript. This could be becausefalsification of the record is So uncommon,andthe resulting denial of due process so egregious,that such cases as occur are handledbytrial courts with per se reversal and never reach the appellate courts. The closest case that has been foundis State v. Sanders (N.C. 1984) 321 S.E.2d 836, in which the North Carolina Supreme Court reversed the People v. Woodruff, S115378 Appellant’s Opening Briefp conviction and sentencein a death-penalty case after concluding that the trial transcript was inaccurate and that no adequate transcript could be formulated. That court concluded, in light of “the gravity of the offenses for which defendant wastried and the penalty of death which was imposed,” to exercise its authority to vacate the judgment and order a new trial. (State v. Sanders, at p. 837.) Under the Eighth and Fourteenth Amendments to the United States Constitution and California case law, a criminal defendantis entitled to an appellate record that is adequate to permit meaningful review. (People v. Young (2005) 34 Cal.4" 1149, 1170 [24 Cal.Rptr.3d 112, 105 P.3d 487], citing People v. Alvarez (1996) 14 Cal.4" 155 [58 Cal.Rptr.2d 385, 926 P.2d 365], People v. Howard (1992) 1 Cal.4" 1132 [5 Cal.Rptr.2d 268, 824 P.2d 1315]; see also Woodson v. North Carolina, supra, 428 U.S.at p. 305; Chessman v. Teets (1957) 354 U.S. 156, 164-165 [77 S.Ct. 1127].) “Under the Fourteenth Amendment,the record of the proceedings must be sufficient to permit adequate and effective appellate review. [Citations omitted.] Under the Eighth Amendment, the record mustbe sufficient to ensure that there is no substantial risk the death sentence has been arbitrarily imposed.” (Howard,at p. 1166.) The United States Supreme Court has emphasized repeatedly the crucial role of meaningful appellate review in ensuring that the death penalty is not imposedarbitrarily orirrationally. (Parker v. Dugger (1991) People v. Woodruff, 8115378 236 Appellant’s Opening Brief 498 U.S. 308, 321 [111 S.Ct. 731]; Gregg v. Georgia, supra, 428 U.S. at pp. 204-206; Proffitt v. Florida (1976) 428 U.S. 242, 253 [96 S.Ct. 2960]; Jurek v. Texas (1976) 428 U.S. 262, 276 [96 S.Ct. 2950].) Under California Penal Codesection 190.9, subsection(a), paragraph (1), “The court reporter shall prepare and certify a daily transcript of all proceedings.” When,as here, there is a failure to perform that duty to transcribe all proceedings and instead the transcription from one proceeding is copied and misrepresentedto be the transcriptionoflater proceedings, appellate counsel and the courts can have no confidence in anythingin thetrial record. California statutory law anticipates death, disability or negligence in the court reporting process, not dishonesty. Thestatute deals only with situations in which the court reporter’s notes may be unavailable because they were lost or inadvertently destroyed. (Pen. Code § 1181(9).) This Court has noted that even the loss or destruction of a court reporter’s notes is uncommon: Assuch it randomly burdensisolated appellants, denying them adequate appellate review. It does not advance the cause of justice to require these appellants to proceed with such a handicap. It is far better that a defendantberetried than that the state should permit itself to be subject to the criticism that it has denied an appellant a fair and adequate record on appeal. The burden of requiring a new hearingis small indeed comparedto the importance of ensuring that justice is done on an adequate record on appeal. (In re Steven B. (1979) 25 Cal.3d 1, 9 [157 Cal.Rptr. 510, 598 P.2d 480].) People v. Woodruff, 8115378 Appellant’s Opening Brief237 P Thecritical importance of an accurate trial transcript in the appellate process has long been recognized. “Frequently, issues simply cannot even be seen — let alone assessed — without reading an accurate transcript. ... Moreover, the actual record (if appellate counsel could haveit to inspect) might disclose issues substantial enough to constitute probable or possible ‘plain error,’ even thoughtrial counsel was not awareoftheir existence.” (Hardy v. United States (1964) 375 U.S. 277, 280, fn. 3 [84 S.Ct. 424] (quoting Boskey, The Right to Counsel in Appellate Proceedings (1961) 45 Minn.L. Rev. 783, 792-793).) The duties of appellate counsel include preparing “a legal brief containing citations to the [appellate record] and appropriate authority, and setting forth all arguable issues.” (People v. Barton (1978) 21 Cal.3d 513, 519 [146 Cal.Rptr. 727, 579 P.2d 1043].) “[I]f counsel has a duty to cite to the appellate record in support of his contentions, then counsel has a duty to insure that there is an adequate record before the appellate court from which those contentions may be resolved on their merits.” (/d., at pp. 519- 520.) Counsel is supposed to ensure the existence of an accurate record by requesting augmentation or correction of the appellate record “or by other appropriate means.”(/d., at p. 520; see also rule 8.346 of California Rules of Court.) People v. Woodruff, 115378 238 Appellant’s Opening Brief The defendant bears the burden of demonstrating that the record is inadequate to permit meaningful appellate review. (People v. Samayoa (1997) 15 Cal.4" 795, 820 [64 Cal.Rptr.2d 400, 938 P.2d 2].) The appellate record is inadequate “only if the complained-of deficiency is prejudicialto the defendant's ability to prosecute his appeal.” (People v. Alvarez, supra, 14 Cal.4"at p. 196,fn.8.) If the record can be reconstructed with other methods, the defendant must employ such methodsto obtain appellate review. (People v. Hawthorne (1992) 4 Cal.4™ 43, 66 [14 Cal.Rptr.2d 133, 841 P.2d 118].) However, if the record cannotbe corrected, the trial court and the reviewing court have the power“to set aside and vacate the judgment, order or decree from which an appeal has been takenoris to be taken and to order a new trial of the action or proceeding.” (Pen. Code § 1181(9).) That statute refers to the “loss or destruction” of reporter’s notes. In People v. Woodruff, the falsification of thetrial record is tantamountto the destruction of thetrial record, because any possibility of reconstructing an accurate record has been foreverlost by the destruction of the trial record’s integrity. Courts have vacated or reversed judgments only wherethe fault could be ascribed to governmental authorities or employees, not to the defendant. (People v. Valdez (1982) 137 Cal.App.3d 21, 25 [187 Cal.Rptr. 65].) “The defects in the record must be of a prejudicial character, not People v. Woodruff, 8115378 939 Appellant’s Opening Brief merely inconsequential inaccuracies or omissions. [Citations omitted.] Each case must stand on its own merits, and the outcome will depend upon the circumstancesof the particular case.” (People v. Moore (1988) 201 Cal.App.3d 51, 56 [248 Cal.Rptr. 31].) As acondemnedprisoner, Mr. Woodruff has a due processright to such a complete record on appeal as will assure him meaningful and effective appellate review. (People v. Alvarez, supra, 14 Cal.4"at p. 196, fn. 8; People v. Howard, supra, | Cal.4"at p. 1166.) This right is codified in Penal Codesection 190.7, and also appears in rule 8.619 of the California Rules of Court. Appellate counsel has a duty to request correction, augmentation and settlement of the record where necessary to ensure the existence of an adequate record. (Marks v. Superior Court (2002) 27 Cal.4"" 176, 187 [115 Cal.Rptr.2d 674, 38 P.3d 512]; Peoplev. Barton, supra, 21 Cal.3d at pp. 519-520.) The prejudice to Mr. Woodruff from the falsification of the trial transcript comes from the realization that the entire trial record is untrustworthy. In an appellate process that depends on the precise wording of the trial record, no one can rely on anything in the record whenit is clear that portions of the record are not the accurate accounts of the proceedings they purport to be. In a death-penalty case suchasthis that requires a record of heightened reliability, a tainted transcript will not suffice. (Woodsonv. North Carolina, supra, 428 U.S. at p. 305.) People v. Woodruff, S115378 240 Appellant’s Opening Brief Thetrial court in Mr. Woodruff’s case instructed the jury with CALJIC 2.21.2 at both the guilt and penalty phases. (CT 18:5271; CT 19:5447.) That instruction says a witness, “whois willfully false in one material part of his or her testimony,is to be distrusted in others.” (CALJIC 2.21.2.) The principle underlying that instruction applies not only to witnesses but to court reporters as well. If the trial transcript was falsified and made to appear to be somethingit was not onat least eleven occasions in separate days and separate months, then nothinginthetrial transcript can be trusted. Morethan 50 years ago, the United States Supreme Court held that “California's affirmanceof petitioner's conviction upon a seriously disputed record, whose accuracy petitioner has had no voice in determining, cannot be allowedto stand.” (Chessman v. Teets, supra, 354 U.S. at p. 164.) California courts have also long recognized that whenthetrial transcript is not complete,“at the heart of the problem weconsideris the failure of an official of the court, the court reporter, to fully discharge his duties mandated by law. It makes no difference whythe court reporter did not report, the fact is that the [defendant] has been deprived of a portion of the record because of the court reporter's omission.” (In re Andrew M. (1977) 74 Cal.App.3d 295, 299 [141 Cal.Rptr. 350].) Mr. Woodruff “was deprived of the right to an effective presentation of his appeal dueentirely to a failure on the part of an official of the trial People v. Woodruff, §115378 941 Appellant’s Opening Brief court to comply with the law.” (People v. Serrato (1965) 238 Cal.App.2d 112, 119 [47 Cal.Rptr. 543].) It would violate Mr. Woodruff’ s fundamental rights under the United States and California constitutions “to hold that an effective possibility of appealing the convictions was properly taken away by the omission of a court official to perform the duties prescribed by our system of justice.” (bid.) Becausethe trial record in this case is tainted by apparent dishonesty in its preparation, the heightenedreliability required in death-penalty determinations cannot be obtained. (Woodson v. North Carolina, supra, 428 U.S. at p. 305.) Under the circumstancesofthis case, the requirement that appellate counsel rely on the unreliable trial record violates Mr. Woodruff’s rights to a fair trial, to the heightened reliability required in death-penalty proceedings, to equal protection of the laws, and to due process of law under the Sixth, Eighth and Fourteenth Amendments to the United States Constitution and Article I, sections 7, 15, 17, 24 and 29 ofthe California Constitution. Consequently, Mr. Woodruff’s convictions and sentences should be overturned and a newtrial should be ordered. People v. Woodruff, S115378 242 Appellant’s Opening Brief F. Constitutional CLAIM F1: California’s death-penalty statutes, as interpreted by this Court and applied at Mr. Woodruff’strial, violate United States Constitution. Introduction Manyfeatures of California’s capital sentencing scheme, alone or in combination, violate the United States Constitution. These features, as applied in Mr. Woodruff’s trial, deprived him of his federal constitutional rights when multiple errors by the trial judge, prosecutor and defense counsel resulted in the misapplication of the death penalty to a mentally disabled defendant. Asthe United States Supreme Courthasstated, “The constitutionality of a State’s death penalty system turns on review ofthat system in context.” (Kansas v. Marsh (2006) 548 U.S. 163, 179, fn. 6 [126 S.Ct. 2516]; see also, Pulley v. Harris (1984) 465 U.S. 37, 51 [104 S.Ct. 871].) Viewedas a whole, California’s capital sentencing schemeis so broadin its definitions of whois eligible for death and so lacking in procedural safeguardsthatit fails to providea reliable basis for selecting the relatively few offenders subjected to capital punishment. Judicial interpretations have placed the entire burden of narrowing the class of murderers most deserving of death on Penal Code section People v. Woodruff, 8115378 343 Appeliant’s Opening Brief 190.2, the “special circumstances”section of the statutes — but that section, as applied, allows for the arbitrary and capricious imposition of death. Further, California death-penalty laws provide no safeguards to enhancethereliability of the trial’s penalty-phase outcome. Instead, jurors whoare not instructed on any burden of proof, and who maynotagree with each other, find individual factual prerequisites for the imposition of the death penalty. Paradoxically, the conceptthat “death is different” (Fordv. Wainwright (1986) 477 U.S. 399, 411 [106 S.Ct. 2595], citing Woodson v. North Carolina, supra, 428 U.S.at p. 305) has come to mean in California that procedural protections taken for granted in trials for lesser offenses are suspended whenthe question is foundational to the imposition of death. As a result, Mr. Woodruff became one of the random few from among the thousands of defendants convicted of murder in California to be chosen for the ultimate sanction. a. Penal Code section 190.2 is impermissibly broad A state’s death penalty is cruel and unusual unlessit provides “a ‘meaningful basis for distinguishing the few cases in which [the death 399penalty] is imposed from the manycasesin whichit is not.’” (Peoplev. Edelbacher (1989) 47 Cal.3d 983, 1023 [254 Cal.Rptr. 586, 766 P.2d 1], quoting Furman v. Georgia (1972) 408 U.S. 238, 313 [92 S.Ct. 2726] (conc. opn. of White, J.).) People v. Woodruff, S115378 244 Appellant’s Opening Brief States are required to narrow the class of murdererseligible for the death penalty by rational and objective criteria. According to this Court, narrowing is accomplished in California by the “special circumstances”set out in Penal Codesection 190.2. (People v Bacigalupo (1993) 6 Cal.4"457, 465, 467 [24 Cal.Rptr.2d 808, 862 P.2d 808].) However, California’s 1978 death-penalty law, passed by the voters as Proposition 7, came into being not to narrow thoseeligible for the death penalty but to make a// murdererseligible. (See California Voters Pamphlet, General Election, November7, 1978, p. 34, “Argument in Favor of Proposition 7.”) In 2001, at the time of the offenses charged against Mr. Woodruff, Penal Codesection 190.2 contained 33 special circumstances” purporting to narrow the category offirst-degree murders to those most deserving of the death penalty. These special circumstances are so numerousand so broad in definition as to encompassnearly everyfirst-degree murder, per the Proposition 7 drafters’ declared intent. Section 190.2’s reach has been extendedto virtually all intentional murders by this Court’s construction of the lying-in-wait special circumstance, which the Court has construed so broadly as to encompass This figure does notinclude the “heinous,atrocious, or cruel” special circumstance (Penal Code section 190.2(a)(14)) declared invalid in People v. Superior Court (Engert) (1982) 31 Cal.3d 797 [183 Cal.Rptr. 800, 647 P.2d 76]. People v. Woodruff, 8115378 IAS Appellant’s Opening Brief virtually all such murders. (See People v. Hillhouse (2002) 27 Cal.4" 469, 500-501, 512-515 [117 Cal.Rptr.2d 45, 40 P.3d 754]; also see Claim B9, supra, challenging the sufficiency of the evidence of lying in wait in Mr. Woodruff’s case.) The United States Supreme Court has madeclear that the narrowing function is to be accomplished by the legislature. However, in defiance of numerouscourt rulings, the drafters of Proposition 7 threw down a challenge by seeking to make every murderereligible for the death penalty. This Court should accept that challenge, review the death-penalty scheme currently in effect, and strike it downasso all-inclusive as to guarantee the arbitrary imposition of the death penalty against Mr. Woodruff in violation of his rights under the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution. b. Penal Code section 190.3 as applied allows arbitrary and capricious imposition ofdeath Penal Codesection 190.3, factor (a), which allowsthetrier of fact to consider “the circumstances of the crime” in aggravation, has been applied in such a mannerthat almostall features of every murder have been characterized by prosecutors as “aggravating” within the statute’s meaning. As aresult, Penal Code section 190.3(a) violates the Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution. People v. Woodruff, S115378 246 Appellant’s Opening Brief This Court has never applied a limiting construction to factor (a) other than to agree that an aggravating factor based on the “circumstances of the crime” must be somefact beyond the elements ofthe crimeitself. (People v. Dyer (1988) 45 Cal.3d 26, 78 [246 Cal.Rptr. 209, 753 P.2d 1]; see also CALJIC 8.88.) Nonetheless, in Mr. Woodruff’s trial, the prosecutor improperly argued that the circumstancesof the crime were enough by themselvesto warrantthe jurors’ votes for the death penalty, without considering any penalty-phase evidence. (See Claim D1, supra.) The purpose of Penal Codesection 190.3 is to inform the jury of whatfactors it should consider in assessing the appropriate penalty. Althoughfactor (a) has survived a facial Eighth Amendmentchallenge (Tuilaepa v. California (1994) 512 U.S. 967 [114 S.Ct. 2630]),it has been used in waysso arbitrary and contradictory as to violate both the federal guarantee of due process of law and the Eighth Amendment. In practice, section 190.3’s broad “circumstancesof the crime” provision licenses indiscriminate imposition of the death penalty upon no basis other than “that a particular set of facts surrounding a murder ... were enough in themselves, and without some narrowing principles to apply to those facts, to warrant the imposition of the death penalty.” (Maynardv. Cartwright (1988) 486 U.S. 356, 363 [108 S.Ct. 1853] (discussing the holding in Godfrey v. Georgia (1980) 446 U.S. 420 [100 S.Ct. 1759].) People v. Woodruff, S115378 247 Appellant’s Opening Brief Certainly that was the argumentof the prosecutor at the outset of Mr. Woodruff’s penalty phase, when he said jurors would soon know,“if you don’t already,” that death was the appropriate penalty. (RT 26:5378.) Viewingsection 190.3 in context of how it is actually used,it is apparentthat every factthat is part of a murder can be an “aggravating circumstance,” thus emptying that term of any meaning, and allowing arbitrary and capricious death sentences, as in Mr. Woodruff’s trial, in violation of the United States Constitution. C. California’s death-penalty statutes contain no safeguards to avoid arbitrary and capricious sentencing; statutes deprive defendants of right to jury determination of eachfactual prerequisite to sentence ofdeath California’s death-penalty statutes contain none of the safeguards commonto other states’ death-penalty sentencing schemesto guard against the arbitrary imposition of death. Juries do not have to make written findings or achieve unanimity as to aggravating circumstances. Juries do not have to find beyond a reasonable doubt that aggravating circumstances are proved,that aggravating circumstances outweigh mitigating circumstances, or that death is the appropriate penalty. In fact, except as to the existence of other criminal activity and prior convictions, juries are not instructed on any burden ofproofatall. People v. Woodruff, $115378 Appellant’s Opening Brief248 Death verdict for Mr. Woodruff was not premised on findings beyond a reasonable doubt by unanimousjury that one or more aggravating factors existed and outweighed mitigating factors. | = : The jurors at Mr. Woodruff’s trial were told it was not necessary that they agree on the presence of any particular aggravating factor. However, they were not told they had to find beyond a reasonable doubtthat aggravating factors outweighed mitigating factors before determining whether to impose a death sentence. (RT 27:5704-5705.) Thetrial court’s instructions were consistent with this Court’s previousinterpretations of California’s death-penalty statutes. In Peoplev. Fairbank (1997) 16 Cal.4" 1223, 1255 [69 Cal.Rptr.2d 784, 947 P.2d 1321], this Court said “neither the federal nor the state Constitution requires the jury to agree unanimously as to aggravating factors,or to find beyond a reasonable doubtthat aggravating factors exist, [or] that they outweigh mitigating factors, or that death is the appropriate sentence.” California statutory law andjury instructions, however, do require fact-finding before the decision to impose death or a lesser sentenceis made. Asa prerequisite to the imposition of the death penalty, section 190.3 requires the “trier of fact” to find thatat least one aggravating factor exists and that such aggravating factor (or factors) substantially outweigh People v. Woodruff, S115378 249 Appellant’s Opening Brief any andall mitigating factors.*° Asset forth in California’s “principal sentencing instruction” (People v. Farnam (2002) 28 Cal.4"" 107, 192 [121 Cal.Rptr.2d 106, 47 P.3d 988]), which was read to the jury at Mr. Woodruff’s trial (RT 27:5772), “an aggravating factor is anyfact, condition or event attending the commission of a crime whichincreasesits guilt or enormity, or addsto its injurious consequences whichis above and beyond the elements of the crimeitself.” (CALJIC No.8.88 [2000 Revision] CT 19:5456; RT 27:5772; emphasis added.) Thus, before the process of weighing aggravating factors against mitigating factors can begin, the jury mustfind the presence of one or more aggravating factors. And before the decision to impose death can be made, the jury 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.”’ 36 This Court has acknowledgedthatfact-finding is part of a capital penalty jury’s responsibility, even if not the greatest part; the capital penalty jury’s “role is not merely to find facts, but also — and most important — to render an individualized, normative determination about the penalty appropriate for the particular defendant.” (People v. Brown (1988) 46 Cal.3d 432, 448 [250 Cal.Rptr. 604, 758 P.2d 1135].) 37 This Court has held that despite the “shall impose” language of section 190.3, even if the jurors determine that aggravating factors outweigh mitigating factors, they maystill impose a sentenceoflife in prison. (People v. Allen (1986) 42 Cal.3d 1222, 1277 [232 Cal.Rptr. 849, People v. Woodruff, $115378 950 Appellant’s Opening Brief This Court’s pronouncementin Fairbank has been squarely rejected by the United States Supreme Court’s decisions in Apprendi v. New Jersey, supra, 530 U.S. 466; Ring v. Arizona, supra, 536 U.S. 584; Blakely v. Washington, supra, 542 U.S. 296; United States v. Booker, supra, 543 U.S. 220; and Cunningham v. California, supra, 549 U.S. 270. In Apprendi, the high court held that a state may not impose a sentence greater than that authorized by the jury’s verdict of guilt unless the facts supporting an increased sentence (otherthan a prior conviction) are also submitted to the jury and proved beyonda reasonable doubt. (/d. at p. 478.) In Ring, the high court struck down Arizona’s death-penalty scheme, whichauthorized a judge sitting without a jury to sentence a defendantto death if there wasat least one aggravating circumstance and no mitigating circumstancessufficiently substantial to call for leniency. (/d., at p. 593.) Anyfactual finding increasing the possible penaltyis the functional equivalent of an elementof the offense, regardless of when it must be found. The Sixth and Fourteenth Amendments require that such a factual finding be found by a jury beyond a reasonable doubt. 729 P.2d 115]; People v. Brown (1985) 40 Cal.3d 512, 541 [230 Cal.Rptr. 834, 726 P.2d 516].) People v. Woodruff, §115378 951 Appellant’s Opening Brief The governing rule since Apprendiis that other than a prior conviction*’, any fact that increases the penalty for a crime beyond the statutory maximum mustbe submitted to the jury and found beyond a reasonable doubt; “the relevant ‘statutory maximum’is not the maximum sentence a judge may imposeafter finding additional facts, but the maximum he may impose without any additionalfindings.” (Blakely v. Washington, supra, 542 U.S.at p. 304 [italics in original].) This Court has sought repeatedly to reject the applicability of Apprendi and Ring by comparing the capital sentencing process in California to “a sentencing court’s traditionally discretionary decisionto ... imposeoneprison sentence rather than another.” (People v. Demetrulias (2006) 39 Cal.4" 1, 41 [45 Cal.Rptr.3d 407, 137 P.3d 229]; Peoplev. Dickey (2005) 35 Cal.4" 884, 930-931 [28 Cal.Rptr.3d 647, 111 P.3d 921]; People v. Snow,supra, 30 Cal.4"at p. 126, fn. 32.) In Cunningham vy. California, the high court rejected this Court’s interpretation of Apprendi, and foundthat California’s Determinate Sentencing Law (“DSL”) requires a jury finding beyond a reasonable doubt of any fact used to enhance a sentence above the middle range spelled out °8 Mr. Woodruff had no prior felony convictions. The jurors were instructed to consider unprovenallegations of aggravating circumstances involving express or implied use of force or violence or threat of force or violence: 1) assault; 2) battery, and battery against former cohabitant; 3) aggravated battery causing serious injury, and robbery;4) carrying a concealed firearm; 5) murder and attempted murder. (RT 27:5704.) Item 5 referred to the instant offenses. People v. Woodruff, 8115378 Appellant’s Opening Brief252 by the legislature. (Cunningham v. California, supra, 549 U.S.at p. 274.) In so doing, the high court explicitly rejected the reasoning used bythis Court to find that Apprendi and Ring have no application to the penalty phase of a capital trial. (549 U.S.at p. 282.) In the wake of Cunningham,it is clear that in determining whether Ring and Apprendi apply to the penalty phase of a capital case, the sole relevant question is whether there is a requirementthat any factual findings be made before a death penalty can be imposed. A California conviction offirst-degree murder, even with a finding of one or more special circumstances, “authorizes a maximum penalty of death only in a formal sense.” (Ring, supra, 536 U.S. at 604.) Penal Code section 190, subd. (a) provides that the punishmentfor first-degree murder is 25 yearsto life, life without possibility of parole (““LWOP”), or death; the penalty to be applied “shall be determined as provided in Sections 190.1, 190.2, 190.3, 190.4 and 190.5.” Neither LWOP nor death can be imposed unless the jury finds a special circumstance(section 190.2). Death is not an available option unless the jury makesfurther findings that one or more aggravating circumstancesexist, and that the aggravating circumstances substantially outweigh the mitigating circumstances. (Section 190.3; CALJIC 8.88 [2000 Revision] CT 19:5456; RT 27:5772.) “If a State makes an increase in a People v. Woodruff, $115378 Appellant’s Opening Brief2 g defendant’s authorized punishment contingent onthe finding of a fact, that fact — no matter how theState labels it — must be found by a jury beyond a reasonable doubt.” (Ring, 536 U.S.at p. 602.) The issue of the Sixth Amendment’s applicability hinges on whether the sentencer must make additional findings during the penalty phase before determining whether the death penalty can be imposed. In California, as in Arizona, the answer is “Yes.” That, according to Apprendi and Cunningham,is the end of the inquiry as far as the Sixth Amendment’s applicability is concerned. In Mr. Woodruff’s trial, all of the facts the judge considered before determining the death penalty should have been consideredby thejury first and found to be true beyond a reasonable doubt. | However,the trial judge relied on numerousfacts not found bythe jury to be true beyond a reasonable doubt, including aggravating and mitigating factors in the penalty phase, as well as the unsworn testimony of seven witnessesat the automatic hearing for reduction of sentence and the hearsay evidence in the probation report. (See Claim D3, supra.) Consequently, Mr. Woodruff’s death sentence violated his rights to a jury trial and due process of law under the Sixth and Fourteenth Amendments to the United States Constitution. People v. Woodruff, S$115378 954 Appellant’s Opening Brief iL. California law fails to require jury to base death sentence on written findings regarding aggravating factors. The failure of California’s death-penalty statutes to require written findings by the jury regarding aggravating factors deprived Mr. Woodruff of his federal constitutional rights to meaningful appellate review and due processof law. (California v. Brown (1987) 479 U.S. 538, 543 [107 S.Ct. 837]; Gregg v. Georgia, supra, 428 U.S. at p. 195.) Because California juries have total discretion on how to weigh potentially aggravating and mitigating circumstances (People v. Fairbank, supra), there can be no meaningful appellate review without written findings if it will otherwise be impossible to “reconstruct the findings of the state trier of fact.” (Townsend v. Sain (1963) 372 U.S. 293, 313-316 [83 S.Ct. 745].) This Court has held that the absence of written findings by the sentencer does notrender the 1978 death-penalty scheme unconstitutional. (People v. Fauber (1992) 2 Cal.4™ 792, 859 [9 Cal.Rptr.2d 24, 831 P.2d 249]; People v. Rogers (2006) 39 Cal.4" 826, 893 [48 Cal.Rptr.3d 1, 141 P.3d 135].) However, in other contexts, such findings have been considered by this Court to be an element of due process so fundamental that written findings are even required at parole suitability hearings. (In re Sturm (1974) 11 Cal.3d 258, 270 [113 Cal.Rptr. 361, 521 P.2d 97].) “It is unlikely that People v. Woodruff, 115378 255 Appellant’s Opening Brief an inmate seeking to establish that his application for parole wasarbitrarily denied can make necessary allegations with the requisite specificity unless he has some knowledgeof the reasonstherefor.” (/d., at p. 269.) The same analysis applies to the far graver decision to put someoneto death. In a non-capital case, the sentencer is required by California law to state on the record the reasons for the sentence choice. (Pen. Code § 1170, subd. (c).) Under the federal Constitution, capital defendants are entitled to more rigorousprotections than those afforded non-capital defendants. (Harmelin v. Michigan (1991) 501 U.S. 957, 994 [111 S.Ct. 2680].) Because providing more protection to a non-capital defendant than to a capital defendant would violate the equal protection clause of the Fourteenth Amendment(see generally Myers v. Yist (9™ Cir. 1990) 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 andthe reasonsfor the penalty chosen. Written findings are essential for a meaningful review of the sentence imposed. (See Mills v. Maryland (1988) 486 U.S. 367, 383, fn. 15 [108 S.Ct. 1860].) Even where the decision to impose death is “normative” (People v. Demetrulias, supra, 39 Cal.4"at pp. 41-42) and “moral” (People v. Hawthorne, supra, 4 Cal.4"" at p. 79), its basis can and should be articulated. People v. Woodruff, S$115378 256 Appellant’s Opening Brief The importance of written findings is recognized throughoutthis country; post-Furmanstate capital sentencing systems commonly require them. Further, written findings are essential to ensure that a defendant subjected to a capital penalty trial under Penal Codesection 190.3 is afforded the protections guaranteed by the Sixth Amendment. There are no other procedural protections in California’s death- penalty system that would compensate forthe unreliability inevitably producedbythe failure to require an articulation of the reasons for imposing death. California’s failure to require written findings thus violates Mr. Woodruff’s rights to trial by jury, heightenedreliability in death-penalty sentencing, and due process of law under the Sixth, Eighth and Fourteenth Amendmentsto the United States Constitution. ul. Alleged criminalactivity could not serve as factor in aggravation unless found to be true beyond a reasonable doubt by unanimousjury. The jury’s use of unadjudicated criminal activity as aggravating factors under Penal Codesection 190.3, factor (b), violated Mr. Woodruff’ s rights to a jury trial, heightenedreliability in death sentencing, and due processof law. At the penalty phase of Mr. Woodruff’s trial, the prosecution presented evidence regarding unadjudicated criminal activity allegedly involving appellant, including an alleged battery in Riverside, California,in September 1988 (RT 26:5423-5437); an incident in Riverside, California, People v. Woodruff, S115378 Appellant’s Opening Brief257 P in May 1989 in which one man waskilled and another man was wounded in an exchange of gunfire (RT 26:5438-5458, 5466-5489, 5501-5523; RT 27:5564-5569); an alleged assault in Rubidoux, California, in December 1993 (RT 26:5379-5409); an alleged threat in Rubidoux, California, in February 1999 (RT 26:5409-5423); and an alleged assault in Pomona, California, in December 1999 (RT 26:5523-5534; RT 27:5556-5563, 5569- 5581). (RT 27:5704; CT 6:1569-1570.) At closing argument, the prosecutor told the jurors they “are not required to make any findings of any of those crimes. ... [Y]ou as jurors individually now,not as a group,are free to decide whether you believe the defendant did those things beyond a reasonable doubt. And if you do, then you getto useit as you want to.” (RT 27:5723.) The prosecutor went on to say the alleged prior acts “present a picture” of Mr. Woodruff as “a man whocarries a gun, and has on other occasions. He's a man who will beat up somebody ... kick him, break his wrist. He's a man that will push girlfriends when he's angry. He's a man who, whenhe's around violence, joins in it and shoots. ... Steve Woodruff gets angry. And whenhe gets angry, he hurts. And he ... has hurt people wheneverhe needs to. Heis not a peaceful family man.” (RT 27:5732-5733.) Since 2000, the U.S. Supreme Court’s decisions in Apprendi, Ring, Blakely, Booker and Cunningham have confirmed that underthe jury trial guarantee of the Sixth Amendment,the heightenedreliability requirement People v. Woodruff, $115378 258 Appellant’s Opening Brief of the Eighth Amendmentandthe due process clause of the Fourteenth Amendment, the findings prerequisite to a sentence of death must be made beyonda reasonable doubtbya jury acting as a collective entity. Evenif it were constitutionally permissible to rely upon alleged unadjudicated criminalactivity as a factor in aggravation, such alleged criminal activity would have to be found beyond a reasonable doubt by a unanimousjury. The jury in the penalty phase of Mr. Woodruff’s trial was not instructed on the need for such a unanimous finding; nor is such an instruction required under California’s sentencing scheme. (See RT 27:5704-5705, 5723.) Consequently, Mr. Woodruff’s death sentence violated his rights to a jurytrial, heightenedreliability of death sentencing, and due process of law underthe Sixth, Eighth and Fourteenth Amendmentsto the United States Constitution. People v. Woodruff, S115378 259 Appellant’s Opening Brief iv. Judge's failure to instruct jury that statutory mitigating factors were relevant solely as potential mitigation precludedfair, reliable and evenhanded administration ofdeath penalty. Each of the factors under Penal Code section 190.3 introduced by a prefatory “whether or not” — factors (d), (e), (f), (g), (h), and (j) — was relevant solely in mitigation in the penalty phase of Mr. Woodruff’s trial. (People v. Hamilton (1989) 48 Cal.3d 1142, 1184 [259 Cal.Rptr. 701, 774 P.2d 730]; People v. Edelbacher, supra, 47 Cal.3d at p. 1034; People v. Davenport (1985) 41 Cal.3d 247, 289-290 [221 Cal.Rptr. 794, 710 P.2d 861].) However,the jury wasfree to concludethat a “not” answeras to any of these “whether or not” sentencing factors could establish an aggravating circumstance, and wasthus invited to aggravate the sentence uponthe basis of nonexistent and/orirrational aggravating factors, thereby precluding the reliable, individualized capital sentencing determination required by the Eighth and Fourteenth Amendments. (Woodson v. North Carolina, supra, 428 U.S. 280, 304; Zant v. Stephens (1983) 462 U.S. 862, 879 [103 S.Ct. 2733].) Further, the jury was free to aggravate a sentence based upon an affirmative answerto one of these questions, and thus, to convert mitigating evidence (for example, evidence establishing a defendant’s mental illness People v. Woodruff, $115378 260 Appellant’s Opening Brief or defect) into a reason to aggravate a sentence,in violation of both state law and the Eighth and Fourteenth Amendments. This Court has repeatedly rejected the argumentthat a jury would apply factors meantto be only mitigating as aggravating factors weighing in favor of a sentence of death: Thetrial court was not constitutionally required to inform the jury that certain sentencing factors were relevant only in mitigation, and the statutory instruction to the jury to consider “whether or not” certain mitigating factors were present did not impermissibly invite the jury to aggravate the sentence uponthe basis of nonexistentor irrational aggravating factors. [Citations omitted.] Indeed, “no reasonable juror could be misled by the language of section 190.3 concerning the relative aggravating or mitigating nature of the various factors.” (People v. Morrison (2004) 34 Cal.4" 698, 730 [101 P.3d 568], quoting People v. Arias, supra, 13 Cal.4" at p. 188.) However,this assertion is demonstrably false. Within the Morrison case itself lies evidence to the contrary. Thetrial judge mistakenly believed that Penal Code section 190.3 factors (e) and (j) constituted aggravation instead of mitigation. (Id., 34 Cal.4" at pp. 727-729.) This Court recognized thatthetrial court so erred, but found the error to be harmless. (Ibid.) If a seasoned judge could be misled by the languageat issue, how can jurors be expected to avoid making this same mistake? Othertrial judges and prosecutors have been misled in the same way.(See,e.g., People v. Montiel (1993) 5 Cal.4™ 877, 944-945 [21 Cal.Rptr.2d 705, 855 People v. Woodruff, 8115378 Appellant’s Opening Brief261 P P.2d 1277]; People v. Carpenter (1997) 15 Cal.4™ 312, 423-424 [63 Cal.Rptr.2d 1, 935 P.2d 708].) The very real possibility that the jury in the penalty phase of Mr. Woodruff’s trial aggravated his sentence based upon nonstatutory aggravation deprived Mr. Woodruff of an important state-law-generated procedural safeguard andliberty interest — the right not to be sentenced to death except uponthe basis of statutory aggravating factors (People v. Boyd (1985) 38 Cal.3d 765, 772-775 [215 Cal.Rptr. 1, 700 P.2d 782]) — and thereby violated Mr. Woodruff’s Fourteenth Amendmentright to due process of law. (See Hicks v. Oklahoma (1980) 447 U.S. 343 [100 S.Ct. 2227].) Thelikelihood that the jury in Mr. Woodruff’s case would have been misled aboutthe potential significance of the “whether or not” sentencing factors was heightened bythe prosecutor’s misleading and erroneous statements during penalty phase closing argument, such as his erroneous assertion that the “aggravating circumstancesin this case for you to look at are the crimeitself, the intented [sic] victimization over and over and over again of the family and everybody involved.” (RT 27:5732.) It is thus likely that the jury aggravated Mr. Woodruff’s sentence upon the basis of what were, as a matter of state law, nonexistent factors and did so believing that the trial court had identified them as potential aggravating factors supporting a sentence of death. This violated not only People v. Woodruff, S115378 Appellant’s Opening Brief262 P pening state law, but the Eighth Amendment,for it madeit likely that the jury treated Mr. Woodruff “as more deserving of the death penalty than he might otherwise be by relying upon... illusory circumstance[s].” (Stringer v. Black (1992) 503 U.S. 222, 235 [112 S.Ct. 1130].) Consequently, Mr. Woodruff’s sentence violated his rights to a fair trial, heightenedreliability in death sentencing, and due process of law underthe Sixth, Eighth and Fourteenth Amendments. d. California’s use ofdeath penalty as regular punishmentfalls short of international norms of humanity and decency andviolates the Eighth and Fourteenth Amendments. The United States is among a small numberof nations that regularly use the death penalty as a form of punishment. Indeed, as of December31, 2010, the only other major countries that had not abolished the death penalty in law or fact were in Asia and Africa. (Amnesty International, Death Sentences and Executions, 2010 [Annex I: Reported Death Sentences and Executions in 2010] (March 2011).)*? Although the United States is not bound by the laws of any other sovereignty in its administration ofits criminal justice system, it has relied * The only countries with more reported executions than the 46 in the United States in 2010 were China, Iran, North Korea and Yemen. Other countries with reported executions in 2010 were Saudi Arabia, Libya, Syria, Bangladesh, Somalia, Sudan, Palestinian Authority, Egypt, Equatorial Guinea, Taiwan, Belarus, Japan, Iraq, Malaysia, Bahrain, Botswana, Singapore and Vietnam.(A link to the full report may be found at http://amnesty.org/en/library/info/ACT50/001/201 1/en.) People v. Woodruff, 8115378 Appellant’s Opening Brief3 g from its beginning on the customsandpractices of other parts of the world to inform its understanding. “When the United States became an independentnation, they became, to use the language of Chancellor Kent, ‘subject to that system of rules which reason, morality, and custom had established amongthe civilized nations of Europe as their public law.’” (Miller v. United States (1871) 78 U.S. [11 Wall.] 268, 315 [20 L.Ed. 135] (dis. opn. of Field, J.); see also Hilton v. Guyot (1895) 159 U.S. 113, 227 [16 S.Ct. 139]; Martin v. Waddell’s Lessee (1842) 41 U.S. [16 Pet.] 367 [10 L.Ed. 997].) Due processis not a static concept, and neither is the Eighth Amendment. In the course of determining that the Eighth Amendment now bans the execution of mentally retarded persons, the United States Supreme Court relied in part on the fact that “within the world community, the imposition of the death penalty for crimes committed by mentally retarded offenders is overwhelmingly disapproved.” (Atkins v. Virginia, supra, 536 USS.at p. 316, fn. 21, citing Brief for European Union as Amicus Curiae in McCarverv. North Carolina, O.T. 2001, No. 00-8727,p. 4.) Thus, even if capital punishmentis not contrary to international norms of human decencyas an extraordinary punishmentfor extraordinary crimes,its use as a regular punishment for substantial numbers of crimes is. Nations in the Western world no longer accept it. The Eighth Amendment does not permit jurisdictions in the United States to lag so far behind. (See People v. Woodruff, $115378 264 Appellant’s Opening Brief Atkins v. Virginia, supra, 536 U.S. at p. 316.) Furthermore, inasmuchas the law of nations now recognizes the impropriety of capital punishmentas a regular punishment, capital punishmentis unconstitutional in the United States because international law is a part of U.S. law. (Hilton v. Guyot, supra, 159 U.S.at p. 227; see also Jecker, Torre & Co. v. Montgomery (1855) 59 U.S. [18 How.] 110, 112 [15 L.Ed. 311].) Thus, the overly broad death-penalty schemein California and the use of the death penalty as a regular punishmentviolate the Eighth and Fourteenth Amendmentsto the United States Constitution and international law. Mr. Woodruff’s death sentence should besetaside.- People v. Woodruff, $115378 365 Appellant’s Opening Brief CLAIM F2: Cumulative effect of errors pretrial and at guilt, retardation and penalty phases requires reversalof Mr. Woodruff’s convictions and death sentence. This opening brief has identified numerouserrors that occurred before Mr. Woodruff’s trial and during the guilt, retardation and penalty phases. These errors — considered individually and collectively — deprived Mr. Woodruffofa fair trial, the right to confront the evidence against him, a fair and impartial jury, effective assistance of counsel, fair and reliable guilt and penalty determinations, and due processof law. The United States Supreme Court “has clearly established that the combined effect of multiple trial court errors violates due process whereit rendersthe resulting criminaltrial fundamentally unfair.” (Parle v. Runnels (9"Cir. 2007) 505 F.3d 922, 927, citing Chambers v. Mississippi (1973) 410 US. 284, 298, 302-303 [93 S.Ct. 1038].) “The cumulative effect of multiple errors can violate due process even where nosingle errorrises to the level of a constitutional violation or would independently warrant reversal.” (/d., citing Chambers, at p. 290, fn. 3.) This Court has held that a “series oftrial errors, though independently harmless, may in some circumstancesrise by accretion to the level of reversible and prejudicial error.” (People v. Hill, supra, 17 Cal.4" at p. 844.) Such errors can create “a negative synergistic effect, rendering the degree of overall unfairness to defendant more than that flowing from the sum ofthe individual errors.” (/d., at p. 847.) In such cases, “‘a People v. Woodruff, 115378 366 Appellant’s Opening Brief balkanized, issue-by-issue harmless error review’ is far less effective than analyzing the overall effect of the errors in the context of the evidence introducedat trial against the defendant.” (United States v. Frederick (9" Cir. 1996) 78 F.3d 1370, 1381, quoting United States v. Wallace (9" Cir. ~ 1988) 848 F.2d 1464, 1476.) Eacherror identified in this brief, by itself, is sufficiently prejudicial to warrant reversal ofMr. Woodruff’s convictions, retardation-phase determination, and/or death sentence. Even if that were not the case, however, reversal ofMr. Woodruff’s convictions and death sentence would be required becauseofthe substantial prejudice flowing from the cumulative impact ofthe errors, which violated his rights under the Fifth, Sixth, Eighth and Fourteenth Amendmentsto the United States Constitution and Article 1, sections 7, 15, 16, 17, 24 and 29 of the California Constitution. People v. Woodruff, $115378 267 Appellant’s Opening Brief Vi. CONCLUSION For allofthe reasons stated above in claim categories A through F, appellant Steve Woodruff, by and through counsel, respectfully requests that this Court reverse his convictions on all counts, the trial court’s . findings of special circumstances andthe finding that he is not mentally retarded, and all sentences, including the sentence of death. At all phasesofthetrial proceedings, Mr. Woodruffwas denied his rights to a fair trial, assistance of counsel, heightened reliability of guilt and penalty determinations, due process of law and equal protection ofthe laws under the Sixth, Eighth and Fourteenth Amendments to the United States Constitution and Article I, sections 7, 15, 16, 17, 24 and 29 of the California Constitution. This case should be remandedtothe trial court for a new trial with competent counsel and an unbiased judge andjury. August 29, 2011 Respectfully submitted, ‘DENNIS C. CUSICK Attorney for Appellant People v. Woodruff, S115378 268 Appellant’s Opening Brief Vill, CERTIFICATE OF COMPLIANCE I certify that the attached Appellant’s Opening Brief in People v. Woodruff, 8115378,is printed on recycled paper using 13-point Times New Roman type. It is 58,649 wordsin length. August 29, 2011 Respectfully submitted, “DENNIS C. CUSICK Attorney for Appellant People v. Woodruff, $115378 369 Appellant’s Opening Brief IX. CERTIFICATE OF SERVICE I, the undersigned, hereby declare: I am overthe age of eighteen years and am not a party to the within- entitled action. On August 29, 2011, I served the attached Appellant’s Opening Brief in the case of Steve Woodruff, appellant, by placing copies ofthe brief in postage-paid envelopes addressed to the personslisted below and by depositing those envelopes in the United States mail. Arlene Aquintey Sevidal Steve Woodruff Deputy Attorney General P.O. Box T-89905 110 West "A" Street, Suite 1100 San Quentin State Prison P.O. Box 85266-5299 San Quentin, CA 94974 San Diego, CA 92186-5266 The Honorable Christian Thierbach California Appellate Project Superior Court of California Attn: Scott Kauffman County ofRiverside 101 SecondStreet, 6th Floor 4100 Main Street San Francisco, CA 94105 . Riverside, CA 9250 I declare under penalty ofperjury that the foregoing is true and - correct. Executed this 29 day of August, 2011, at Martinez, California. £: Peopie v. Woodruff, 8115378 7 Appeliant’s Opening BriefoS