PEOPLE v. SANDOVAL (RAMON JR.)

Appellant’s Opening Brief

Cal.July 12, 2010

SIPREME Cun COPYwikisae IN THE SUPREME COURT OF THE STATE OF CALIFORNIA THE PEOPLE OF THE STATE ) CaseNo. S115872 OF CALIFORNIA, ) ) SUPREMECOURT Plaintiff/Respondent, ) EeLED ) neta V. ) JUL 42 2016 ) Frederik K Ohtrich Clerk RAMON SANDOVAL,JR., ) Defendant/Appellant. ) ) Los Angeles County Superior Court, Case No. BA240074 Hon. Joan Comparet-Cassani, Presiding APPELLANT’S OPENING BRIEF VICTOR S. HALTOM Attorney at Law State Bar No. 155157 Sacramento, CA 95814 Telephone: (916) 444-8663 Facsimile: (916) 444-1546 e-mail: vshjah@aol.com Attorney for Appellant RAMON SANDOVAL a s IN THE SUPREME COURT OF THE STATE OF CALIFORNIA THE PEOPLE OF THE STATE OF CALIFORNIA, Plaintiff/Respondent, RAMON SANDOVAL,JR., ) ) ) ) ) Vv. ) ) ) ) Defendant/Appellant. ) ) Case No. S115872 Los Angeles County Superior Court, Case No. BA240074 Hon. Joan Comparet-Cassani, Presiding APPELLANT’S OPENING BRIEF VICTOR S. HALTOM Attorney at Law State Bar No. 155157 Sacramento, CA 95814 Telephone: (916) 444-8663 Facsimile: (916) 444-1546 e-mail: vshjah@aol.com Attorney for Appellant RAMON SANDOVAL TABLE OF CONTENTS STATEMENTOF THE CASE..........0 00.0.nents 1 STATEMENT OF APPEALABILITY . 2.0.0.0... 00.0. cece eee 1] STATEMENT OF FACTS 2.0.0.2... ee ccceee een eas 12 A, Guilt Phase Evidence .......0 0 ccc cece eee n ee neae 12 1. Gang Evidence ...... 0.0 ccc ccc cee eee nes 13 2. B.P. Meeting at Lazy’s Home ....... 0.0.0 ce ccc eee eee 16 3. E.S.P. Drive-By Shooting .......6 0600s 19 4. B.P. Members Arm Themselves and Return to Lazy’s Home 2.0...6cceetenes 20 J. B.P. Members Go to Toro’s Residence on Lime AVENUE00ccce een eee nee e eens 23 6. Detectives Daryle Black and Richard Delfin Arrive on the Scen€ 2.0... ecceet eee nee nae 24 7. The Shooting .......0 60.ccc25 8. Maria Cervantes ......0 00. ccccece eens 28 9. B.P. Members Flee .....0 000eens 28 10. Rapid Police Response .........0.. 000 cece cee eee 29 Il. Rascal’s Arrest 0...600s32 12. Mr. Sandoval’s Post-Homicide Activities .............4.. 33 13. Rascal’s Cooperation with Police Lecce eee eee eee e nee 33 14. Mr. Sandoval’s Arrest and the Seizure ofthe Murder Weapon ..........Lecce eee eee e eee teens 35 15. Mr. Sandoval’s Confession 0.0.6... c cc cece. 36 16. Mr. Sandoval’s Knowledge ofB.P.’s Pattern OfCriminality 0.0.0.0.ccceee eee eens 39 17. Firearm and Ballistics Evidence ...........00 000 ee eee 39 18. The Autopsy ofDetective Black ........6.600 00 beeen 42 19. The Injuries suffered by the Surviving Victims ........... 42 a. Maria Cervantes ......... ob beb cb beeeeee eee 42 b. Detective Delfin 0.0.0.0 0 ccceens 43 20. Search ofLazy’s Home ...... 0.cece nee 44 21. Belated Discovery ofRascal’s Notes ........000 0c cece 45 Original Penalty Phase ..... 0... 0. ccc cen eet neee 45 I. The Prosecution’s Cas€ 1.0.0... c cc eee 46 a. The Murder ofJesus Cervantez ...........00+00+- 46 b. Daryle Black ..... 00.0tees 48 C. Richard Delfin 0.00.0.cen50 2. The Defense Case 00... 6 cc ccc ccc teens 5] a. Background and Family .... 006.00 ees 52 -li- /// b. Gang Involvement .........0 000 ccc eee 55 c. Acceptance ofResponsibility and Remorse ......... 57 d. Conditions ofConfinement and Future DangerousneéSs ........ 0.0. cceens 58 3. The Prosecution’s Rebuttal Case ...... 0... cece eee ee 60 Penalty Phase Retrial 6.2.60... ccc ceceees 61 1. Mr. Sandoval’s Date ofBirth 0.0.60... 62 2. Mr. Sandoval’s Level ofEducation ............ Lieeeees 63 3. Mr. Sandoval’s Appearanceat the Time ofHis Arrest and at the Time ofthe Retrial ...........000 0000s 63 4. The Identity ofthe Shooter in the J.K.I. Shooting Incident at McDonald’s 1... 0.0 cccee nee 64 J. Mr. Sandoval Was Shot in October of1999 0.0... 00s 65 6. The Duration ofthe Rivalry Between B.P. and ESPLcccc eee nee eee e eens 64 7. No Evidence ofMr. Sandoval’s Tearful Conversation with His Girlfriend ............0020 000 e- 64 8. Toro Was Asleep at the Time ofthe Shooting ............ 65 9. Maria Cervantes and Her Daughter .........0..0.00 04005 65 10. Detective Delfin’s Emotional Outburst in the Retrial 00.cc ccc ce cece eee een eeuneeues 65 -ili- 11. Eyewitness Characterization ofthe Mannerin Which Detectives Black andDelfin Approached Rascal Just Before the Shooting...........0 00sec eens 66 12. Gang-Related Items Found in Jail Cells Occupied by Mr. Sandoval .......eee eee eee neers 66 13. The Meaning of “Menace” ........... 00 cece eens 67 14. Gang-Expert Testimony Regarding Mr. Sandoval’s Intent 20.cenceence nee eee 67 15. The Nature ofa CAR-15 1.0.0... cecenes 68 16. Presentation to the Jury of Transcripts From Which Information Regarding Mr. Sandoval Shooting Other People with the CAR-15 Was Not Redacted ..... 0... ccc ceceeens 68 17. Detective Black’s Christianity ..........0. 00.0 cee 69 18. Mr. Sandoval’s Soccer Prowess .......0 000 cece ees 69 19. The Break-Up ofthe Sandoval Family ............0..0.005 70 20. No Evidence ofRemorse ........ 0ccece 70 INTRODUCTION 2.0...2.cence eee ence ene 71 /// /// /// -1V- DISCUSSION I, BECAUSE THE TRIAL COURT FAILED TO CONDUCT AN EVIDENTIARY HEARING TO RESOLVEISSUES OF FACT RAISED BY MR. SANDOVAL’S SUPPRESSION MOTION, AND BECAUSE THE TRIAL COURT RELIED ON EXTRAJUDICIAL FINDINGS TO DENY THE MOTION,MR. SANDOVALIS ENTITLED TO AREMAND FOR A FULL ......... 72 AND FAIR HEARING. A. Standard ofReview 2.1... cccceeeee eens 74 B. Factual Background 2.0... 00.tee e nee 75 1. Rascal’s ArreSt 0.00... c ccceee teenies 75 2. Police Initially Suspected that the Shooting Was Carried Out By Membersofthe Crips Gang In Retaliation for a Fatal Officer-Involved Shooting ofa Crips Member ..... 0600 ccene 76 3. Interrogation ofRascal at the Long Beach Police Department Over the Course ofThree Days ............. 77 a. Sunday — April 30, 2000 ..... 00...ee 78 b. Monday —May 1, 2000 2.0...ces 81 C. Tuesday —May 2, 2000 .. 0...ceeeee 82 4. The Warrant to Search Mr. Sandoval’s Home ...........- 83 J. The Arrest ofMr. Sandoval ...........0 0c cece ees 87 6. The Hearing on Rascal’s Motion to Suppress EVidenC€ 0...cece eee een eens 88 w a If. a. Rascal . 0...cece eee nee ees 89 ~ b. Maria Puente-Porras.. , Lecce cece eee ete ee ee eens 93 i C. The Court’s Denial ofRascal’s Motion to SUPPLESS 6...ceee eee ees 94 7. Mr. Sandoval’s Original Motion to Quash and Traverse the Warrant 0.0.0.0... ccc cee eee eee 94 8. Mr. Sandoval’s Renewed Motion ..............+00+00+5 97 C. Governing Legal Principles ............ 00 cece eens 100 I. The Requirements ofa Full and Fair Hearing on a Fourth Amendment Claim ..... cence eee ee ee eens 101 2d. The Prohibition Against Reliance on Extrajudicial Factfinding 2.0.0... cccct e teenies 109 D. Analysis... 0...ccccnet e een e ee nees 111 I. Erroneous Denial ofEvidentiary Hearing ............. 111 2. Improper Adoption ofExtrajudicial Fact Finding ....... 114 FL Remedy oo.cceee tenet enna 116 THE PROCESS OF SELECTING “DEATH QUALIFIED” JURORS IS UNCONSTITUTIONAL. ......0..0..0.0 0.000 e eee ees 116 A. Standard ofReview 0.0.0...ccccette 118 B. Background .. 0.0...cent en eens 119 C. Constitutional Principles Impacted by the Death Qualification PrOCesSS 0.0...cccette nee 122 -vi- SrARENEENREAAPSHBe . ReneaeROAae cane 1. The Sixth Amendment .............0.. 000 cece eeees 122 2. The Constitutional Safeguards Against Cruel and/or Unusual Punishment ........000 0 00 ces 125 3. Due Process 0.0... ccccee ene ene 126 4. Equal Protection ......... 00.eee ees 127 D. Congnizability ofthis Issue on Appeal .... 0... ccc eee 128 UI. IN VIOLATION OF PENAL CODE SECTION 1093, THE TRIAL COURT FAILED TO READ THE INDICTMENT TO THE JURY, AND FAILED TO INFORM THE JURY OF MR. SANDOVAL’S PLEA OF NOT GUILTY TO THE | CHARGESIN THE INDICTMENT. ........eect eee eee eee 130 IV. THE EVIDENCE WASINSUFFICIENT TO SUPPORT THE FIRST-DEGREE MURDER CONVICTION, AND, BASED ON THE RECORD, IT CANNOT BE DETERMINED WHETHER THE JURY’S VERDICT RESTED ON THE UNSUSTAINABLE TRANSFERRED-PREMEDITATION THEORY PRESENTED BY THE PROSECUTOR. ................ 136 A. Standard ofReview 1.0.6...cceee eens 139 B. Governing Constitutional and Legal Principles Concerning the Evidentiary Requirements to Establish Premeditation and Deliberation .........0.00 000 eee eee eee 140 1. The Prosecution’s Burden ofProof ........0.00. 000 v eee 140 2. Premeditation and Deliberation ........0..000 cece nee 141 3. Transferred Premeditation ..........0 00 cc cnc cee 147 /// -Vii- C. The Effect ofthe Prosecution’s Presentation ofan Invalid Theory ofCulpability o.ooceeee 152 D. AnalySis ... 6.6eeteee eee n nes 154 1. No Evidence ofPremeditation and Deliberation ......... 154 2. The Gang Expert Testimony Did Not Supply Evidence ofPremeditation and Deliberation ........... 158 3. The Jury’s Insufficiently Supported Verdict is Likely Attributable to the Prosecution’s Presentation ofan Invalid Transferred Premeditation Theory ..........2. 00 cee eee eee eens 159 4. Legislative Expansion ofthe First Degree Felony Murder Rule Would Provide a Basisfor Liability for First Degree Murder in Cases Like the Instant Case 0.0...eeeetn teens 161 THE TRIAL COURT INVADED THE FACT-FINDING PROVINCE OF THE JURY, ON THE QUESTION OF WHETHER THE MURDER OF DETECTIVE BLACK WAS DELIBERATE AND PREMEDITATED, BY ALLOWING THE PROSECUTION TO PRESENT GANG EXPERT TESTIMONY THAT MR. SANDOVAL AND HIS COHORTS ACCOUNTED FOR THEPOSSIBILITY OF POLICE ARRIVING DURING THEIR ASSAULT ON TORO, AND PLANNED IN ADVANCETO “TAKE CARE OF” ANY OFFICERS WHO INTERFERED WITH THE “GANG HIT” 20.ceceen ene nes 162 A, Standard ofReview 0... ccccent eneees 163 B. Factual Background ......... 00 ccc ccceens 163 C. Permissible Bounds ofExpert Opinion Testimony ............. 169 -Vili- 1. Expert Opinion Testimony Concerning the Mental State and/or Guilt ofthe Accused .............. 172 2. Expert Opinion Testimony in Gang Cases .............. 176 D. Admission ofEvidence that Invades the Fact-Finding Province ofthe Jury With Respectto the Intent Element ofa Charged Offense Violates the Constitutional Rights ofthe Accused ........... 00 cece eee 180 E. Analysis 0...cence nee t eee n eens 18] 1. EVVOr ooeeeene ene enees 181 2. Prejudic€ 0.0.0...eesLecce ee eee 185 VI. THE TRIAL COURT ABUSEDITS DISCRETION AND VIOLATED MR. SANDOVAL’S DUE PROCESS RIGHTS BY ADMITTING INFLAMMATORY, NON-TESTIMONIAL HEARSAY NOTES WRITTEN BY RASCAL—NOTES CONTAINING ASSERTIONS THAT B.P. MEMBERS WERE NOT KILLING ENOUGH PEOPLE...................... 188 A, Standard ofReview 2.0.0... 0.cceee 190 B. Factual Background ......0.0 00.ceeene 191 C. Legal Principles Concerning the Admission ofEvidence Pursuant to the Exception to the Hearsay Rulefor Coconspirator Statements 0.0.000.tcc nees 198 D. Analysis...ceceeect eens 203 /// /// -1X- VII. THE TRIAL COURT ABUSED ITS DISCRETION AND RENDERED MR. SANDOVAL’S TRIAL UNFAIR BY ALLOWING THE PROSECUTIONTO ADDUCE EVIDENCE THAT A WITNESS CALLED BY THE PROSECUTION HAD BEEN THREATENED BY AN UNIDENTIFIED THIRD PARTY, DESPITE THE FACT THAT NO EVIDENCE WAS PRESENTED THAT MR. SANDOVAL KNEW ABOUT THE THREAT ..............-....-. 207 A. Standard ofReview 0... 0. cccceeee e eee eee 208 B. Factual Background «0.0...ceeens 208 C. Case Law Concerning the Admissibility of Threat EVidenC€ 6...ceceetn e een eens 213 D. The Inflammatory and Prejudicial Effect ofThreat Evidenc€ 0.1...eeene eee ena 218 EL Analysis... 0...cccence ene ene ennee 220 VIN. THE TRIAL COURT COMMITTED PREJUDICIAL CONSTITUTIONAL ERROR BY REJECTING MR. SANDOVAL’S REQUEST TO INSTRUCT THE JURY PURSUANT TO CALJIC NO.2.01 AND/OR CALJIC NO. 202ccece eee eee e nent nen eens 222 A. Factual Background .........0.6223 B. Standard ofReview .. 6... ccc cc nent eens 228 C. Legal Authority Regarding a Trial Court’s Obligation to Instruct the Jury Concerning Circumstantial Evidence Relating to the Mental State ofDeliberation and Premeditation ........ 00.0 c ccc cee teenies 228 1. Premeditation and Deliberation Can Seldom, If Ever, Be Proven Without Circumstantial Evidence ....... 228 -X- IX. 2. The Trial Court Must Instruct the Jury that Circumstantial Evidence Can Only Support a Conviction or Particular Degree ofGuilt Ifthe Inferences Reasonably Drawnfrom the Evidence Rule Out Innocence or a Lesser Degree of Guilt ......... 230 D. Constitutional Ramifications .......0 0nnes 235 EL Analysis...cccencee een eens 236 1. EVPOPr ooceecent een nnn 237 2. Prejudic€ 66...cecnet eeees 238 THE SPECIAL CIRCUMSTANCEFINDINGS MUST BE SET ASIDE DUE TO THE TRIAL COURT’S FAILURE TO INSTRUCT THE JURY CONCERNING CIRCUMSTANTIAL EVIDENCE PERTAINING TO THE SPECIAL CIRCUMSTANCES........... 0... ceceenn 239 A. Jury Instructions Concerning Evaluation of Circumstantial Evidence Germaneto Special Circumstance Allegations ....... 00...bec eee 240 B. The Trial Court Erred By Failing to Instruct the Jury Sua Sponte that Circumstantial Evidence Could Not Support True Findings on the Special Circumstance Allegations Unless the Circumstantial Evidence Was Irreconcilable With the Possibility that the Special Circumstance Allegations Were Untrue ........0.0.00 cece ees 241 1. Murder to Prevent Arrest ...... 0.0... ccc ccc ce eee ees 242 2. Murderofa Victim Known to Be an On-Duty Police Officer...0.tennn eens 244 3. Lying in Wait...ctnen tenes 244 -Xi- 4. Murderin Furtherance ofCriminalStreet Gang Activities .... 0.0...eee 246 C. The Error Was Prejudicial ........ 0.0. c cc ees 248 X. UNLESS THE STATUTORY LANGUAGEOF THE LYING-IN-WAIT SPECIAL CIRCUMSTANCEIS INTERPRETEDSO AS TO DISPENSE WITH THE CONSTITUTIONALLY REQUIRED NARROWING FUNCTION OF SPECIAL CIRCUMSTANCES, THE EVIDENCE WASINSUFFICIENT TO SUPPORT THE JURY’S LYING-IN-WAIT SPECIAL CIRCUMSTANCE FINDING, ......0. 0.0. occceceeee nen eees 249 XI. THE TRIAL COURT VIOLATED MR. SANDOVAL’S STATUTORY AND CONSTITUTIONALRIGHTS BY | CONDUCTING PROCEEDINGS OUT OF MR. SANDOVAL’S PRESENCE .............. 00.00 cece eee ee eee 259 Xl. THE STATE’S RETRIAL OF THE PENALTY PHASE, FOLLOWINGTHE 7-5 DEADLOCKIN THE ORIGINAL PENALTY PHASE, WAS UNCONSTITUTIONAL. ............... 262 XIII. THE TRIAL COURT’S WITHERSPOON-WITTERROR IN THE REMOVALOF PROSPECTIVE JUROR D.M. NECESSITATES AUTOMATIC REVERSAL OF THE DEATH PENALTY JUDGMENT ........... 0... 0c cece eens 269 A. Factual Background ..........0. 0cccs270 1. D.M.’s Questionnaire and Voir Dire ...............44- 271 2. The Trial Court’s “Ambivalence/Equivocation” Standard 20.0...ccccc cence tenes 277 B. Standard ofReview ... 1.0...tenes 278 -X11- C. Governing Legal Principles .......0. 0. 0cccces 279 1. Burden ofProof .... 00.00cen nes 280 2. Significance ofDefense Objection ..........0.0000 000. 281 3. The Sixth and Fourteenth Amendments Have Been Construed to Prohibit Removalfor Cause of a Prospective Juror in a Capital Case on the Basis ofHis/Her Views Concerning the Death Penalty Unless Those Views Would Completely or Substantially Inhibit the Prospective Juror’s Capacity to Consider and Vote to Impose the Death Penalty. 00...c ene teen eens 281 a. The Significance ofEquivocation and/or Ambivalence on the Part ofProspective Jurors During the Death-Qualification PLOCESS 06.ceeeee eens 284 1) Background— The Evolution of High Court Precedent Pursuant to Which Equivocation Has Become Increasingly Relevant ...........60.00005 285 2) Equivocation Is Not Tantamountto Substantial Impairment .............+..-: 288 3) Equivocation May Reflect a Degree ofImpairment Without Rising to the Threshold Level ofSubstantial Impairment ..... 0.00eee 289 4) Appellate Treatment ofEquivocation Differs From the Manner in Which a Trial Court Must Handle Equivocation. .... 291 -Xlll- b. The RequirementofSubstantial Evidence of Substantial Impairment ©0000. 0 c nes 293 C. Application ofan Erroneous Legal Standard ...... 296 D. Analysis ........... cobb bbb bbc beeeetetetbbventetttrene. 296 1. No Substantial Evidence ofInability or Substantial Impairment o..00ceeneces 297 2. The Trial Court’s Application ofErroneous Legal PreceptS 00...ceeeee nee eee 301 a. Erroneously Equating Equivocation With CAUse .6.ceceeee 302 b. Double-Standard ......... 6.00 c cece ees 305 1. Prospective Juror Z.A .... 0.0.00 cece 307 2. Prospective Juror J.C... 1... eee 308 3. Prospective Juror C.D. ... 0.00. eee 314 3. Conclusion — The Trial Court’s Removal ofD.M. for Cause Was Erroneous ........00 c 317 E. Remedy 20... 6cceeee Lee eee eens 318 XIV. THE TRIAL COURT ABUSED ITS DISCRETION WHENIT DENIED THE DEFENSE REQUEST FOR A MISTRIAL AFTER DETECTIVE DELFIN, WHILE ON THE STAND, CALLED MR. SANDOVALA SON-OF-A-BITCH. ............... 319 A. Standard ofReview ........ 00.teens 320 B. Relevant Legal Principles ..... 0...cnn 321 -XIV- C. Mistrial 2.0000cceee ec eens 321 The Prohibitions Against “Evidence” That Poses a Risk ofCausing a Jury to Impose a Death Sentence Based on Passion rather than Reason ......... 321 Remarks Made by a State Official, Disparaging a Criminal Defendant, Are Inherently Prejudicial ....... 323 AnalySiS .. 0.cecetenet eee neee 323 XV. PRESUMPTIVELY PREJUDICIAL JUROR MISCONDUCT, INCLUDING POSSIBLE PRE-DELIBERATION JUROR BALLOTING, OCCURRED DURING THE PENALTY XVI. PHASE RETRIAL. ......... 0... ccceeeeens 324 A, Standard ofReview ........ 0... c cc eee ene 327 B. Applicable Legal Authorities .......0.00 0600 ccc eee 328 C. Analysis 0.6.onenents 332 BY EXPOSING THE JURY TO EVIDENCE OF UNCHARGED SHOOTINGSMR. SANDOVAL HAD ADMITTEDIN HIS CONFESSION, THE PROSECUTOR VIOLATED THE TRIAL COURT’S ORDER EXCLUDING THAT EVIDENCE AND RENDEREDMR. SANDOVAL’S PENALTY PHASE RETRIAL FUNDAMENTALLY UNFAIR. ........0..... 00.0000 334 A. Legal Principles and Reviewing Standards Concerning Prosecutorial Misconductand Ineffective Assistance ofCounsel . 0.0.0.0. 6c ccc ete nes 335 Prosecutorial Misconduct ........0.0 00 0c cece nes 335 Ineffective Assistance ofCounsel ...........0 00000 ee 335 -XV- B. Procedural and Factual Background .............0. 0000s 336 C. The Prejudicial Nature ofthe Evidence that Mr. Sandoval HadAdmitted to Shooting Other People ............ 338 D. Analysis...00.0enent e nes 340 XVII. THE PROSECUTOR RENDERED MR. SANDOVAL’S PENALTY PHASE TRIAL UNFAIR BY COMMITTING MISCONDUCT DURING ARGUMENTTO THE JURY. ........... 342 A. Standard ofReview .....00.6342 B. Factual Background ... 0.0...eens 343 1. Mr. Sandoval’s Lying Hair...... bee eee e eee ene ee 343 2. Phantom Defense Arguments .......00.00 00 ccc eee 344 C. Legal Principles Concerning Prosecutorial Misconduct During Argument to the Jury ...........0.0040400- 347 1. Preserving a Claim ofMisconduct.............00...004: 347 2. Arguing Purported Facts Outside the ReCOrd26ceceteen ene 347 3. Suggesting that a Non-Testifying Defendant Was SomehowLying to the JULYocccee tent e teenies 349 D. AnalySis ..00.ceeence eens 350 /// /// -XVI- XVI. THE PROSECUTOR’S USE DURING CLOSING XIX. /// //] ARGUMENTOF AN EMOTIONAL POWER POINT PRESENTATION OF VICTIM-IMPACT EVIDENCE BROUGHT NEARLY HALF OF THE MEMBERSOF THE JURY TO TEARS AND VIOLATED MR. SANDOVAL’S DUE PROCESS AND EIGHTH AMENDMENTRIGHTS TO FUNDAMENTAL FAIRNESS IN HIS PENALTY PHASE RETRIAL. ................ 351 A. Standard ofReview ...... 0...centen ees 352 B. Factual Background ....... 0000 ccc teen eee 352 C. Legal Principles .....0.... 0.0 ccc ccc eects 354 D. By Bringing Jurors to Tears with the Eulogy-Like Audio-Visual Presentation, the Prosecutor Rendered Mr. Sandoval’s Penalty Phase Retrial Fundamentally Unfair .. 0.00.00. 00 0c cc 357 THE TRIAL COURT VIOLATED MR. SANDOVAL’S CONSTITUTIONAL RIGHT TO A FAIR PENALTY DETERMINATION BY INSTRUCTING THE JURY, DURING LEAD DEFENSE COUNSEL’S ARGUMENT, THAT IT WAS NOT ALLOWED TO ACCEPT COUNSEL’S REPRESENTATION THAT A SENTENCE OF LIFE WITHOUT THE POSSIBILITY OF PAROLE WOULD RESULTIN MR. SANDOVAL SPENDING THE REST OF HIS LIFEIN PRISON. ................2020 200000 358 A. Factual Background ........ cece ee eee e teens 360 B. Controlling Constitutional Principles ..........00 000 c cee 361 -XVli- 1. The Federal and State Constitutional Rights ofa Capital Defendant to Inform the Jury an LWOPSentence Will Result in the Defendant Spending the Rest ofHis/Her Life in Prison ............ 362 2. The State Constitutional Prohibition Against Informing Juries ofPossible Post-Judgment Modification ofan LWOP Sentence ...........00.0054. 366 C. Analysis 0...0cceeeee e nnn eee 369 D. Prejudic€ 6...cetteee nees 373 XX. THE TRIAL COURT VIOLATED MR. SANDOVAL’S RIGHT TO A FAIR AND RELIABLE PENALTY DETERMINATION BY REFUSING HIS REQUEST TO INSTRUCT THE JURY THAT INDIVIDUAL JURORS DID NOT NEED TO AGREE WHETHER MITIGATING CIRCUMSTANCES WERE PRESENT IN ORDER TO CONSIDER AND GIVE EFFECT TO THOSE MITIGATING CIRCUMSTANCES ............... 02.000 00 0005 375 XXI. BECAUSE OF THE NORMATIVE, SUBJECTIVE NATURE OF THE DECISION-MAKING PROCESS OF JURORS IN THE PENALTY PHASEOF A CAPITAL CASE, APPELLATE COURTS CANNOT TREAT PENALTY-PHASE ERRORS AS HARMLESS.................... 380 XXII. THE DEATH PENALTY IS UNCONSTITUTIONAL. ............. 382 CONCLUSION .....00cette n eee tenes 384 WORD-COUNTCERTIFICATE CERTIFICATE OF SERVICE -XVill- TABLE OF AUTHORITIES Cases Adams v. Texas (1980) 448 US. 38 ooeeeee eee 284, 286, 292, 299, 302 Agee v. White (11th Cir. 1987) 809 F.2d 1487 2.0...een 105 Aldridge v. United States (1931) 283 U.S. 308 2.0...ceenee nee 279 Amtower v. Photon (2008) 158 Cal.App.4th 1582 2.0...eeeee ee 163 Arnold v. Runnels (9" Cir. 2005) 421 F.3d 859 0.00.cc ccc cee ees 206 Arizona v. Fulminante (1991) 499 US. 279oeeee nes 338 Atkins v. Virginia (2002) 536 U.S. 304 20.cceee een eee 267-268 Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450 10.cctet e nes 128 Baender v. Barnett (1921) 255 U.S. 224 1.0... Lecce eee eee e nent eeeeeeeaes 178 Bassett v. State (Ind. 2008) 859 N.E.2d 1201 2.0...ccee nee 213 Baze v. Rees (2008) 553 U.S. 35 Joo...eee 122, 127, 364, 374, 382-383 -X1X- Blakely v. Washington (2004) 542 U.S. 296 ............... bene e eee cette ee ee eens 123 Booth v. Maryland (1987) 482 U.S. 496 ..... Leen e eee eee eee eee teens 321-322 Briano v. State (1978) 94 Nev. 422 [581 P.2d 5] .........0 0... 2c eee eee ee 229 Brock v. United States (7th Cir. 2009) 573 F.3d 497 oo...eetnes 103 Bronshtein v. Horn (3d Cir. 2005) 404 F.3d 700 2...eeeeee 365 Bullock v. United States . (D.C. Cir. 1941) 122 F.2d 213 2...ceees 144, 156 Bruton v. United States (1968) 391 U.S. 123 2.ceetenes 339 Cabrera v. Hinsley (7th Cir. 2003) 324 F.3d 527 2...eneee eee 103 Caldwell v. Mississippi (1985) 472 US. 320 2...cceen e teens 367 California v. Ramos (1983) 463 U.S. 992 22.ceeeen tenes 366, 382 California v. Trombetta (1984) 467 U.S.479 200ceceete eee ees 217 Callins v. Collins (1994) 510 U.S. 1141 2...eeee eee 383 /T/ -XX- Cannon v. Gibson (10th Cir. 2001) 259 F.3d 1253 occnee 103 Chapmanv. California (1967) 386 U.S.18 ................. 105, 186, 207, 237, 248, 262, 374 City ofPleasant Hill v. First Baptist Church (1969) | Cal.App.3d 384 2.0...eeeeens 329 Clanton v. Cooper . (10th Cir. 1997) 129 F.3d 1147 2...eeeeee eee 115 Clark v, Arizona (2006) 548 U.S. 735 2...eee eee Lecce eee 179, 186 Colorado v. Nunez (1984) 465 U.S. 324 Lo.cccce ete e nes 106 Commonwealth v. Kerpan (1985) 508 Pa. 418 [498 A.2d 829] .... 0...eeeeee 330 Commonwealth v. King (1998) 554 Pa. 331 [721 A.2d 763] ....... 0...eeeee 365 Commonwealth v. Webster (1850) 59 Mass. (5 Cush.) 295 2.0.0...eeeene ee 234 Correa v. Superior Court (2002) 27 Cal.4th 444 20...enee 73 County ofSacramento v. Lewis (1998) 523 U.S. 833 oooceeence eee e ne eees 126 Cox v. State (Ind.Ct.App. 1981) 422 N.E.2d 357 1.0... eee 215-216, 221 IT] -XX1- Crane v. Kentucky (1986) 476 ULS. 683 20.ceeee ences 217 Crawford v. Washington (2004) 541 U.S. 36 2...ccccece eens 202 Davis v. Georgia (1976) 429 US. 122 cee etnias 318 Davis v. Washington (2006) 547 ULS. 813 2.eece een eens 202 Dennis v. United States (1950) 339 ULS. 162 2...ecee eee ee renee 279 Doescherv. Estelle (Sth Cir. 1980) 616 F.2d 205)...eeeeee 105 Douglas v. Alabama (1965) 38 US. 415 2.0.ceecee eee eens 220 Dudley v. Duckworth (7th Cir. 1988) 854 F.2d 967 ............ee 215, 217-219, 221 Duncan vy, Loutsiana (1968) 391 U.S.145 ooo. e cece cece cee ceccucsuceueeeeuerenas 135 Ebron v. United States (D.C. 2003) 838 A.2d 1140 ..........0...0..008.. 213, 215, 217-218, 221 Fay v. New York (1947) 332 U.S. 261 2.cecee en neaes 127 Fiswick v. United States (1946) 329 US. 211 2ceete eens 199 -XXil- Floyd v. Meachum (2d Cir. 1990) 907 F.2d 347 0.0...ccccc eee 349 Franklin v. Anderson (6th Cir. 2006) 434 F.3d 412 2.0.0... 0.cenee 279 Franks v. Delaware (1978) 438 US. 154 1.0... ee, 73-74, 96, 105-109, 111-116 Furman v. Georgia (1972) 408 U.S. 346 2...cccee eee 251, 382-383 Ghent v. Woodward (9" Cir. 2002) 279 F.3d 1121 0...ccee cece ee 206 Glasser v. United States (1942) 31S U.S. 60 2...cccee eee eee ees 127 Goldman v. United States (1918) 245 U.S. 474 ooceeene eees 175 Godfrey v. Georgia (1980) 446 U.S. 420 2...ccceen eee enee 251 Graham vy. Florida (2010) 130 S.Ct. 2011 2...ccceeee eens 267 Gray v. Mississippi (1987) 481 U.S. 648 ............0... 279, 282, 292, 296, 299, 301, 318 Greer v. Miller (1987) 483 U.S. 756 ooccee ee eee eee ene 339, 341 Griffin v. United States (1991) 502 US. 46 oooccccence teenies 153 /// -XXili- 4 # Harmerv. State (1937) 133 Neb. 652 [276 N.W. 378] ............-..2006- 110-111, 115 Head v. Carr (2001) 273 Ga. 613 [544 S.E.2d 409]... 6...eee ee eee ee 289 Hernandez v. McGrath (E.D. Cal. 2009) 595 F.Supp.2d 1111 2... cee ee ee eee 179 Herrera v. Lemaster (10th Cir. 2000) 225 F.3d1176 2.0...ceeee eee 104 Herrick v. Garvey (10th Cir. 2002) 298 F.3d 1184 2...ccceee 110 Hightower v. Schofield (11th Cir. 2004) 365 F.3d 1008 2.0.0.0...eeeeee 288 Houston v. Roe (9" Cir. 1999) 177 F.3d 901 oo.ceeeee eee 251 Hovey v. Superior Court (1980) 28 Cal.3d 1.........0.... 00... ee eee 270, 310-311, 315-316 lannelli v. United States (1975) 420 U.S. 770 2...cceect eee n eee 178 Illinois v. Allen (1970) 397 U.S. 337 00.ccceee eee nee ees 178, 260 In re Andrews (2002) 28 Cal.4th 1234 2...0ceecee eee eee 336 In re Hitchings (1993) 6 Cal.4th 97 .. 0. ceee 328-329, 333 -XXIV- In re Lance W. (1985) 37 Cal.3d 873 .......... Lecce eee eee ee eee eee neces 100 In re Lynch (1973) 8 Cal.3d 410... .. 0.0...ceceeee eens 266 In re MTBE Products Liability Litigation (S.D.N.Y. 2009) 643 F.Supp.2d 482.0...eeee eee 172 In re Winship (1970) 397 U.S.358 2...cetteene eeee 140 Jackson v. Virginia (1979) 443 U.S. 307 2.ceeteen eee 140, 155 Joint Anti-Facist refugee Committee v. McGrath (1951) 341 U.S. 123 2.ceeeee eens 126 Jones v. United States (9th Cir. 1949) 175 F.2d 544 2.ceeees 145, 156 Jones v. United States (1999) 527 U.S.373 2.ceeeen en nees : 263 Johnson v. Singletary (M.D. Fla. 1995) 883 F.Supp. 1535 2.0.0... ceeee ee eee 229 Johnson v. State (2002) 255 Ga.App. 721 [566 S.E.2d 440]... 0... eee eee 215 Kansas v. Marsh (2006) 548 US. 163 2...eecece eee eee ee 266, 381 Keeney v. Tamayo-Reyes (1992) 504 US. 1Lceee nee n ence 102 -XXV- a Kelly v. California (2008) 129 S.Ct. 564 20...eeeeee 355-356 Kelly v. South Carolina (2002) 534 U.S. 246 2...cceens 362-363, 365 Kennedy v. Lockyer (9th Cir. 2004) 379 F.3d 1041 2...eeeee 373 Kennedy v. Louisiana (2008) 128 S.Ct. 2641 2...cceens 266, 383 Keyser v. State (Ind.Ct.App. 1974) 312 N.E.922 0.0...eeeee 216, 221 Khoa Dang Nguyen v. McGrath (N.D.C.A. 2004) 323 F.Supp.2d 1007 2.0.2.0... eee eee eens 207 Kimmelman vy. Morrison (1986) 477 U.S. 365 2ceceeen eee eens 101 Krulewitch y. United States (1949) 336 U.S. 440 20.ceeee eens 199, 339 LaFrance v. Bohlinger (1st Cir. 1974) 449 F.2d 29 00.cenen eens 115 Lesko v. Owens (3d Cir. 1989) 881 F.2d 44 2.0.cccccs 220-221 Lewis v. United States (1892) 146 U.S. 370 2...cenceene eas 260 Lisenba v. California (1941) 314 U.S.219 2.cetteees 115 -XXVi- Lockett v. Ohio (1978) 438 U.S. 586 20.eeeeee tenes 377 Lockhart v. McCree (1986) 476 U.S. 162 2...ccceee 117, 280, 282, 301 Lopez v. State (Tex.Crim.App. 1973) 500 S.W.2d 844 2.0...eenee 349 Mack v. Cupp (9th Cir. 1977) 564 F.2d 898 2...eeeene 104 Manson Brathwaite (1977) 432 U.S. 1063 2.0... eee ee eeeocc eee eee eens 203 Mapp v. Ohio (1961) 367 U.S. 643 2.ceeee nen e ee eeee 101 Martinez v. Garcia (9th Cir. 2004) 379 F.3d 1034 2.0... eee ee eee 152-153, 161 Martini v. Hendricks (3d Cir. 2003) 348 F.3d 360 ..... 0... cece cee eee 290, 300 Mayfield v. Woodford (9th Cir. 2001) 270 F.3d 915 2...ccceee nee 380 McFarland v. State (1999) 337 Ark. 386 [989 S.W.3d 899] 2.0... cccee eee 229 McGauthav. California (1971) 402 U.S. 183 2.cnteee eens 383 McKoyv. North Carolina (1990) 494 US. 433 2.ccceens 268, 376-379 -XXVil- “ T t Merced v. McGrath . (9th Cir. 2005) 426 F.3d 1076 283 Mills v. Maryland (1988) 486 U.S. 367 2...eeeeee es 355, 376-377, 379 Miranda y. Arizona (1966) 384 U.S. 436 2... ccc eee ee eee 77, 82, 88, 92, 99 Morgan vy.Illinois (1992) 504U.S.719 1.0.0... eee 126, 279-280, 284, 291, 301, 306 Morissette v. United States (1952) 342 US. 246 0.ceeee eee 159, 175, 182, 202 Morrissey v. Brewer (1972) 408 U.S.471 22cccc eee eee eens 202 MT. v. Superior Court (2009) 178 Cal.App.4th 1170 2.0...ccc ee ene ee 128 Mullaney v. Wilbur (1975) 421 U.S. 684 ................ sce eee eee eee teen eee nee 140 M/VAmerican Queen y. San Diego Marine Constr. Corp. (9th Cir. 1983) 708 F.2d 1483 2...eeeee eee 110 MVMInc, v. Rodriguez (D.P.R. 2008) 568 F.Supp.2d 158 2.00.ceeees 111 Nipper v. Snipes (4th Cir. 1993) 7 F.3d 415 0.0eeeee ene 110 O'Dell v. Netherland (1997) S21 US. IST ooccceee 364, 366-367 -XXVili- Olmstead v. United States (1928) 277 U.S. 428 2...ceence eens 66, 320 Ortiz-Sandoval v. Gomez (9th Cir. 1996) 81 F.3d 891 2...eens 213 Palmigiano v. Houle (1st Cir. 1980) 618 F.2d 877 2...eccee 104 Parker v. Bowersox (8th Cir. 1999) 188 F.3d 923 20...ceeeens 321 Parker v. Gladden (1966) 385 U.S. 363 20...eas 323-324 Payne v. Tennessee (1991) 501 U.S. 808 ........ 0.020208. 266, 321-322, 324, 352, 354, 357 Penry v. Johnson (2001) 532 U.S. 782 0.ceceeee ee ene 372-373 Penry v. Lynaugh (1989) 492 U.S. 302 1...cccence eens 267 People v. Alcala (1984) 36 Cal.3d 604 2... ccccece ence ee neee 146 People v. Allen (1976) 65 Cal.App.3d 326.0... . cece eee eee nees 201 People v. Anderson (1968) 70 Cal.2d 15.0... 0.cee 141, 144-147, 156, 158 People v. Anderson (2007) 152 Cal.App.4th 919 20...cccece nee 231 -XXiX- e s w e People v. Arias (1996) 13 Cal.4th 92 ............. ween ence eee eee eens 347 People v. Ashmus (1991) 54 Cal.3d 932 2...eeee eee 117, 318 People v. Ault (2004) 33 Cal.4th 1250 2...eeeeens 336 People v. Badgett (1995S) 10 Cal.4th 330 2...ceeee ee eee 115 People v. Beames (2007) 40 Cal.4th 907 1.0...eeeeee 367-368 People v. Benavides (2005) 35 Cal.4th 69 2...eeeeee eee 367 People v. Bender (1945) 27 Cal.2d 164 ............ 143-144, 156, 230, 235, 237, 240-241 People v. Benjamin (1999) 77 Cal.App.4th 264 2.0...eeeeee eee 74 People v. Berryman (1993) 6 Cal.4th 1048 2...ccceee ene 227 People v. Bland (2002) 28 Cal.4th 313 2.0...ccceee eens 147, 161 People v. Blair (2005) 36 Cal.4th 686 2.0...cceens 282, 289 People v. Bloom (1989) 48 Cal.3d 11942cccc eee 228, 237 -XXX- People v. Bloyd (1987) 43 Cal.3d 333 2...cceee eens 232, 240 People v. Bolden (2002) 29 Cal.4th 515 20.cenene eens 320 People v. Bowers (2004) 117 Cal.App.4th 1261 2.0...eeeee eee 116 People v. Box (2000) 23 Cal.4th 1153 0...eeeee eens 380-381 People v. Boyde (1988) 46 Cal.3d 212 22...eecteee eens 381 People v. Boyette (2002) 29 Cal.4th 381 2...ceeee ene 128, 309 People v. Bradford (1997) 15 Cal.4th 1229 0...ceeeee 107 People v. Breaux (1991) 1 Cal.4th 281 2...eeec eee ee 1... 379 People v. Breverman (1998) 19 Cal.4th 142 2.02.ccceee eee 231 People v. Brown (1976) 61 Cal.App.3d 384... 0...eeeee tenes 329 People v. Brown (1994) 8 Cal.4th 746 2...ccceee tenn een eaes 73 People v. Burgener (2003) 29 Cal.4th 833 2...ccceee eects 214 -XXXi- People v. Burton (1961) 55 Cal.2d 328 1.eeeee eee 329 People v. Buss (1999) 187 Ill.2d 144 [718 N.E.2d 1] ..... 0.eeeee 288 People v. Cahill (2003) 2 N.Y.3d 14 [809 N.E.2d 561, 777 N.Y.S.2d 332] ............ 283 People v. Carmony (2005) 127 Cal.App.4th 1066 2.0.2.0... 2 eeee ee eens 262 People v. Carpenter (1997) 15 Cal.4th 312 2...eecee eee 250, 253, 338. People v. Carter (2005) 36 Cal.4th 1215 2.eeeeee ee 256 People v. Cash (2002) 28 Cal.4th 703 2.0.0...eecee eee 292, 306, 348 People v. Castenada (1997) 55 Cal.App.4th 1067 ...... 20...eee 180, 185 People v. Castenada (2003) 23 Cal.4th 743 2...ccccee eet eens 246 People v. Cazalda (2004) 120 Cal-App.4th 858 2.0...ceenee 116 People v. Ceja (1993) 4 Cal.4th 1134 2.0.eee 250, 252-253 People v. Chakos (2007) 158 Cal.App.4th 357 2.0...eee 170, 183 -XXXil- People v. Champion (1995) 9 Cal.4th 879 2...ceceteenies 305 People v. Clark (1970) 6 Cal.App.3d 658.0...eeeeens 163 People v. Clay (1964) 227 Cal.App.2d 87.0.2...ccceect eee 175 People v. Cleague (1968) 22 N.Y.2d 363 [239 N.E.2d 617, 292 N.Y.S.2d 861] .......... 233 People v. Coddington (2000) 23 Cal.4th 529 ........ 2. eee ee.Lecce eee eee 228, 349 People v. Coffman and Marlow (2004) 34 Cal4th 1]...2.eceee eee 159, 173 People v. Colantuono (1994) 7 Cal.4th 206 2.0...ceeee teens 175 People v. Coleman (1989) 48 Cal.3d 112 2.2...eeeee ee 277, 302-304 People v. Cooper (1991) 53 Cal.3d 771 2...cceeeee eee 170 People v. Cornwell (2005) 37 Cal.4th 50 2.0...eeeee eee eens 59 People v. Crew (2003) 31 Cal.4th 822 20...eeeeee eee 335, 341 People v. Croswell (1804 N.Y. Sup. Ct.) 3 Johns. Cas. 337 2.0...eeeeee 124 -XXXili- People v. Curl (2009) 46 Cal.4th 339 2...eeenee 208 People v. Daniels (1991) 52 Cal.3d 815 2...ceeee ene 329 People v. DePriest (2007) 42 Cal.4th 1)...eeeeeenn 231 People v. Dick (1867) 32 Cal. 213 2...ceceee ees 233, 237 People v. Dillon (1983) 34 Cal.3d 441 occeen eee nee 266 People v. Doolin . (2009) 45 Cal.4th 390 2...ccceee 242, 260, 291 People v. Dunkle (2005) 36 Cal.4th 861 2.0...ccceee ene 242 People v. Dykes (2009) 46 Cal.4th 731 ............ Se eee eee ence eee eens 343 People v. Earp (1999) 20 Cal.4th 826 2.0...cccenna 270 People v. Edelbacher (1989) 47 Cal.3d 983 20.cece251 Peoplev. Elliot (2005) 37 Cal.4th 453 2...eeeeee eens 59 People v. Fierro (1991) 1 Cal.4th 173 2.2eceeeeeeee 359 -XXX1V- People v. Garcia (2007) 153 Cal.App.4th 1499 20.cccees 173 People v. Gardeley (1996) 14 Cal.4th 605 ....... 0. eeeeee 171-172, 176, 183 People v. Garewal (1985) 173 Cal.App.3d 285 2...eeeee eee eee 139 People v. Ghent (1987) 43 Cal.3d 739 o.ooeeece eee eee 292, 304-305 People v. Gilliland (1940) 39 Cal.App.2d 250.0...cece 214, 221 People v. Goldberg (1984) 161 Cal.App.3d 170 2.0...eeecc eee ee 107 People v. Gonzalez (2005) 126 Cal.App.4th 1539... 0... eee eee. 174-175, 178, 184 People v. Gonzalez (2006) 38 Cal.4th 932 20...ceceeee ees 171 People v. Green (1980) 27 Cal.3d 1...ccceee eee 152, 161, 347 People v. Gray (2005) 37 Cal.4th 168 2.0...ceeee eee 213 People v. Guiton (1993) 4 Cal4th 1116 2...ccceee eee eee 152 People v. Gutierrez (1994) 23 Cal.App.4th 1576 22...Lecceeens 214 -XXXV- a P People v. Gutierrez (2002) 28 Cal.4th 1083 2.2...eeeeee 349 People v. Guzman (1988) 45 Cal.3d 915 2olceeeee 278, 302-304 People v. Hall (1986) 41 Cal.3d 826 1...eceee eee 152 People v. Hall (1998) 17 Cal.4th 800 2.0.ceeee 347 People v. Hamilton (1989) 48 Cal.3d 1142 2...eeee eee ee 277, 302-304 People v. Hamilton (2009) 45 Cal.4th 863 2.0...ccceee 335, 341 People v. Hannon (1977) 19 Cal.3d 588 2.ccceee eens 214 People v. Hardy (1992) 2 Cal.4th 86 2.0...ceceeee eee 200 People v. Hatchett (1944) 63 Cal_App.2d 144......0 00.000 231, 235-236 People v. Heard (2003) 31 Cal.4th 946 ....... 0.2... eee ee. 292, 294-295, 297, 299, 318 People v. Hill (1998) 17 Cal.4th 800 2...cececece eens 227 People v. Hines (1997) 15 Cal.4th 997 200ceceeee 232, 240 -XXXVI- People v. Hogan (1982) 31 Cal.3d 815 2...eens 170, 183 People v. Holloway (2004) 33 Cal.4th 96.20...eeeee eee 118-119 People v. Holt (1944) 25 Cal.2d 59.0...ceceeee 141-142 People v. Holt (1997) 15 Cal.4th 619 2...eeeeee 163, 380 People v. Honeycutt (1946) 29 Cal.2d 52.0...ceeens 144, 156 People v. Hoyos (2007) 41 Cal.4th 872 2.0...ceceneces 163 People v. Hunter (1963) 370 Mich. 262 [121 N.W.2d 442]... 0.2.0... eee eee eee 330 People v. Jackson (2009) 45 Cal.4th 662 ..... 0...ceceeshee eee 58 People v. Jennings (1988) 46 Cal.3d 963 2...ceceenn eens 379 People v. Jennings (1991) 53 Cal.3d 334 2...ceceee eens 232 People v. Johnson (1980) 26 Cal.3d 557 21.140, 155-156 People v. Johnson (1981) 121 Cal.App.3d 94...ceceeens 348 -XXXVIi- People v. Jurado (2006) 38 Cal.4th 72 ......eeLecce cece ence e eens 199, 205 People v. Kaurish (1990) 52 Cal.3d 648 2.0...eee ee eee 277, 283, 302-303 People v. Kelly (2007) 42 Cal.4th 763 22.0...eeeee eee ee 355, 357 People v. Killebrew (2002) 103 Cal.App.4th 644 ....... 159, 172, 176-178, 182, 184, 186-187 People v. Kimble (1988) 44 Cal.3d 480 2...teenies 264 People v. Kipp (1998) 18 Cal.4th 349 2.0.eeeee 366, 370-371 People v. Koontz (2002) 27 Cal.4th 1041 2...ceeeee 141, 143 People v. Leach (1975) 15 Cal.3d 419 2.ceceeee 199, 201 People v. Lebell (1979) 89 Cal.App.3d 772.0...ccceee eens 201 People v. Ledesma (2006) 39 Cal.4th 641 2.0...eecee ee 329, 363, 369, 372 People v. Lee (1987) 43 Cal.3d 666 2.0...eectene enee 235 People v. Lenix (2008) 44 Cal.4th 602 ....0.eeeeee eee 230-231 -XXXVill- People v. Lewis (2001) 25 Cal.4th 610 2...ceeee eens 240 People v. Lewis (2008) 43 Cal.4th 415 ............ 201, 245, 254-257, 280, 282, 289, 307 People v. Lewis and Oliver (2006) 39 Cal.4th 970 2...eeneens 321 People v. Lindberg (2008) 45 Cal.4th 1 occeee een eens 176 People v. Lizarraga (1990) 219 Cal.App.3d 476 ............ccc eee ene eens 235 People v. Maestas (1988) 204 Cal.App.3d 1208 0.0.2...eeeec eee 108 People v. Majors (1998) 18 Cal.4th 3852000s328 People v. Marshall (1996) 13 Cal.4th 799 2.ceeee ees 231 People v. Martinez (1992) 10 Cal.App.4th 1001 2... 2...eeeeee 179 People v. Martinez (2000) 226 Cal.4th 106 20...eeeeee ee eens 190 People v. Martinez (2010) 47 Cal.4th 911] 2.ceeeee eens 58 People v. Matson (1974) 13 Cal.3d 35 0...cecenent e nen 228 -XXX1X- People v. McClain (1931) 115 Cal.App. 505 ......... 0.0.00. 0 2. ee eee. 233-234, 237 People v. Melton (1988) 44 Cal.3d 713 2...ccceee 172 People v. Mendoza (2000) 24 Cal.4th 130 22...cccee eee eee 169 People v. Meyer (1986) 183 Cal.App.3d 1150 2...eeeeee 107 People v. Mills (2010) 48 Cal.4th 158 2...ceeene 117, 305 People v. Monterroso (2004) 34 Cal.4th 743 2...eects 347 People v. Moon (2005) 37 Cal.4th boo.ceeeee 250, 253, 256 People v. Moore (1971) 15 Cal-App.3d 851 ...... bce eee tee e eee cnet en ee eens 329 People v. Morales (1988) 48 Cal.3d 527 22...cencetenes 250 People v. Morgan (2007) 42 Cal.4th 593 20...cccees 153, 161 People v. Musselwhite (1998) 17 Cal.4th 1216 2.0...ceeeee eens 359 People v. Nesler (1997) 16 Cal.4th 561 2...ccceect eens 328 -xl- People v. Nichols (1948) 88 Cal.App.2d 221 2.0...ecees 143 People v. Noguera (1992) 4 Cal.4th 599 2...cceee eee eens 347 People v. Ochoa (2001) 26 Cal.4th 398 2...ccceee eens 142 People v. Panah (2005) 35 Cal.4th 395 2...eeteens 74 People v. Perez (1959) 169 Cal.App.2d 473 2...eeeeens 214, 221 People v. Perez (1992) 2 Cal.4th 1117 20.ceeen eens 146 People v. Perez (2005) 35 Cal.4th 1219 2...eeeeee 152, 161 People v. Pierce (1979) 24 Cal.3d 199 220ceceeens 328 People v. Pinholster (1992) 1 Cal.4th 865 2...cccee eee eee nee 213 People v. Poindexter (2006) 144 Cal.App.4th 572 2.0... 137 People v. Posey (2004) 32 Cal.4th 193 2...ccceee een tees 227 People v. Pre (2004) 117 Cal.App.4th 413 2...eeeee 228-229 -xli- e a People v. Prieto (2003) 30 Cal.4th 226 ..................cece eee eee eee 374, 380 People v. Prince (2007) 40 Cal.4th 1179 2...eeeee eee 355, 358 People v. Ramos (1984) 37 Cal.3d 136 2...eeeeee 362, 367-369, 372 People v. Richardson (2008) 43 Cal.4th 959 20.cccce eee eens 171 People v. Riggs (2008) 44 Cal4th 248 200.neeens 289 People v. Rodriquez (1969) 274 Cal.App.2d 770 2.0...eccece een eens 170 People v. Rogers (2006) 39 Cal4th 826 2.0.0.eeens 236 People v. Roldan (2005) 35 Cal.4th 646 2.0...ceceeee etnies 291 People v. Romero (2008) 44 Cal.4th 386 2.0...ccceens 141, 261 People v. Rubalcava (2000) 23 Cal.4th 322 2...centnas 178 People v. Ruiz (1988) 44 Cal.3d 589 2...ccees 137. 253 People v. Rundle (2008) 43 Cal.4th 76 2...ccceee e eens 260 -xln- People v. Saling (1972) 7 Cal.3d 844 0.0...ccceens 199-201, 205 People v. Samayoa (1997) 15 Cal.4th 795 00.0ceence nees 347 People v. Samuels (2005) 36 Cal.4th 96 2...ceceect eee eee 367 People v. Scott (1996) 14 Cal.4th 54420ceceee eee 148 People v. Seijas (2005) 36 Cal.4th 291 2.0...ceceeee nee 191 People v. Singh (1995) 37 Cal.App.4th 1343 2.2.0...eeee cee ee eee 17] People v. Sisuphan (2010) 181 Cal.App.4th 297 2.0...eeee eee eee 214 People v. Sousa (1993) 18 Cal.App.4th 549 20...leeee eee 108 People v. Sprague (1879) 53 Cal. 491 2...ccceee eee nee 132-133 People v. Stanley (1995) 10 Cal.4th 764 2...ceceeee tenes 137 People v. Stewart (2004) 33 Cal.4th 425 2...ceceene 283, 299 People v. Superior Court (Bradway) (2003) 105 Cal.App.4th 297 2.0... eeeec eeee eee 252 -xliii- People v. Swanson (1983) 142 Cal.App.3d 104 2.0.0... eeeeeeee eee 232 People v. Taylor (2009) 47 Cal.4th 850 2.0...eceee eee eens 381 People v. Taylor (2010) 48 Cal.4th 574 20.cccee eee 262 People v. Terry (1962) 57 Cal.2d 538 2.ceeeee 214 People v. Thomas (1945) 25 Cal.2d 880 2...ccce eee ees.. 142 People v. Thomas (1992) 2 Cal.4th 489 oo.ceeeee 349 People v. Thompson (1988) 45 Cal.3d 86.0.0... 2 cece ec eee ees 359, 362, 370 People v. Torres (1995) 33 Cal.App.4th 37 2.0.2... eee ee eee 169, 173, 178, 182 People v. Twiggs (1963) 223 Cal.App.2d 455 oo...ee cece eee 133 People v. Walton (1969) 17 Mich.App.687 [170 N.W.2d 315] 20... 0. eee eee ee eee 215 People v. Ward (2005) 36 Cal.4th 1864 2... .. 2.eeec eee 177-178, 182 People v. Watson (1956) 46 Cal.2d 818 2.0...cee 186, 207, 237, 248, 262 -xliv- People v. Watson (2008) 43 Cal.4th 652 2.0...ceceeen eee 371 People v. Weaver (2001) 26 Cal.4th 876 2.0.0.ceceee eens 287 People v. Weiss (1958) 50 Cal.2d 535 ....:ccc cece eee ee ee eee ences 214-216 People v. Wharton (1991) 53 Cal.3d 522 22.cenceeens 158 People v. Wiley (1976) 18 Cal.3d 162 ............... Lecce eee eens 231-232, 237 People v. Williams (1996) 173 Il.2d 48 [670 N.E.2d 638] ... 2.02... ee ee eee 288 People v. Williams (1997) 16 Cal.4th 153 2...eeeeee eee 213 People v. Williams (2008) 43 Cal.4th 584 2.0...eeeee eens 359 People v. Wilson (2005) 36 Cal.4th 309 20...eeeeee nee 349 People v. Yrigoyen (1955) 45 Cal.2d 46.0.0...cence eee 231, 237, 240 Perkins v. State (Tex. App. 1981) 630 S.W.2d 298 2.0...ccceee 349 Plumley v. Mockett (2008) 164 Cal.App.4th 103] 20.0...eee eee 109, 115 -xlv- a s Price v. Superior Court (2001) 25 Cal.4th 1046 ..0 00.eeeee 228, 278 Ramadass v. Angelone (2000) 530 U.S. 156 .............cece cece cence ences 363-364 Reynolds v. United States (1879) 98 US. 145 2ceceeee teenies 280, 301 Roperv. Simmons (2005) 543 U.S. 551 2.eeeeee eee ene ee 125, 267 Salazarv. State (Tex.Crim.App. 2002) 90 S.W.3d 330 ................08. 354, 356-357 Scifres-Martin v. State (Ind.Ct.App. 94) 635 N.E.2d 218 0.0... cccceeens 219 Shafer v. South Carolina (2001) 532 U.S. 36 2...cenceten eens 363 Simmons v. South Carolina (1994) 512 U.S. 154 ....... bee cence eee ee eee eee ee 363-365, 369 Skaggs v. Commonwealth (Ky. 1985) 694 S.W.2d 672 2...centeens 265 Smith v. Texas (1940) 311 U.S. 128 2.0.ceceence nes 127 Sosinsky v. Grant (1992) 6 Cal.App.4th 1548 2.0...cee eee 109-110, 115 Spencer v. Texas (1967) 385 U.S. 554 Loccccnet nnn en eeas 126 -xlvi- State v. Batson (1936) 339 Mo. 298 [96 S.W.2d 384] .................0.. 149-150, 160 State v. Bouffanie (La. 1978) 364 So.2d 971 2...cceen eee eens 115 State v. Carrington (1897) 15 Utah 480 [S50 P. 526] .... 02... eeeccc ee 174 State v. Clifton (Minn. 2005) 701 N.W.2d 793 2.0... cecee eee 218, 220 State v. Cole (1903) 132 N.C. 1069 [44 S.E. 391] ....... 0.0.0... eee 150-152, 160 State v. Daniels (1988) 207 Conn. 374 [542 A.2d 306] ...... 0.0... eee eee ee 265 State v. Davis (1989) 116 N.J. 341 [561 A.2d 1082] ...... 0.0.0... ee ee eee 381 State v. Drake (1976) 31 N.C.App. 187 [229 S.E.2d 51] .... 0...eeee 328 State v. Erickson (1999) 227 Wis.2d 758 [596 N.W.2d 749] 20.0... cee ee ee 288 State v. Henderson (Mo.App.2003) 105 S.W.3d 491.2... ec cee eens 338 State v. Hicks (Mo.App.1976) 535 S.W.2d 308 2.0...cece 215 State v. Hochstein (2001) 262 Neb. 311 [632 N.W.2d 273] .... 0.0... cee ee 263 -xlvii- State v. Kirch (Minn. 1982) 322 N.W.2d 770 ......... 000.eee 229, 237 State v. Lawrence (2000) 352 N.C. 1 [530 S.E.2d 807] .. 0...eeeeee 174 State v. Leake (Minn. 2005) 699 N.W.2d 312 0...eeeeee eee 229 State v. McLeskey (2003) 138 Idaho 691 [69 P.3d 111]....... 0... ce ee ee ee 330 State v. Miller (1994) 178 Ariz. 555 [875 P.2d 788] ......... 0.0.2 eee Leas 330 State v. Montgomery (2008) 163 Wn.2d 557 [183 P.3d 267] .......... 174, 176, 180, 182, 185 State v. Peeler (2004) 271 Conn. 388 [857 A.2d 808] ...... 0.0.0.0... cc ee eee ee 263 State v. Thompson (2003) 204 Ariz. 471 [65 P.3d 420] 2.0.0... eee eee eee 229 State v. Washington (1980) 182 Conn. 419 [438 A.2d 1144] 2.0.00. 332 State v. White (1958) 27 N.J. 158 [142 A.2d 65]... 0.cece ee 368 Stockton v. Virginia (4th Cir. 1988) 852 F.2d 740 2...cece 322, 324 Stone v. Powell (1976) 428 ULS. 465 2...ee 101-104, 106, 114, 116 -xI vili- Strickland v. Washington (1984) 466 U.S. 668 2.00.cceee ees 336, 340 Sullivan v. Louisiana (1993) 508 U.S. 275 2.ccteen e teen e eens 186 Tennard v. Dretke (2004) 542 U.S. 274 2.ceeeeeens 268 Terrovona v. Kincheloe (9th Cir. 1990) 912 F.2d 1176 2...ccees 102, 104 Townsend v. Sain (1963) 372 U.S. 293 oocccee ee e ene 102-104 Trop v. Dulles (1958) 356 ULS. 86 20eenen enes 125, 266 Tuilaepa v. California (1994) 512 U.S. 967 2...cccceteens 251 Turentine v. Miller (7th Cir. 1996) 80 F.3d 222 2...cece eens 104 United States v. Beckman (8th Cir. 2000) 222 F.3d512 2.0...eens 373 United States v. Boyd (D.C.Cir. 1995) 55 F.3d 667 0...eccee eee 174 United States v. Calandria (1974) 414 US. 338 Loceceteenies 102 United States v. Castillo (1* Cir. 2002) 287 F.3d 21 .. 0.cccece eens 107 -xlix- a eF United States v. Chesher (9" Cir. 1981) 678 F.2d 1353 2...cece eee ees 105-106 United States v. Cornett (S5™ Cir. 1999) 195 F.3d 776 20... ceceeee es 200, 202, 204 United States v. Daniels (D.C. Cir. 1985) 770 F.2d 1111 2...eeeeee 339 United States v. Davis (9" Cir. 1981) 663 F.2d 824 00...105 United States v. Davis (Sth Cir. 2000) 226 F.3d 346 2.0...eceee... 235 United States v. DeLeon (9Cir. 1992) 979 F.2d 761 o.oocc cece eee eee ees 108 United States v. Doe (D.C. Cir. 1990) 903 F.2d 16 2.0...cecee eens 373 United States v. Doerr (7° Cir. 1989) 886 F.2d 944 20.ceceeee 200, 204 United States v. Espinosa (9th Cir. 1987) 827 F.2d 604 2.0...cceee 179 United States v. Fielding (9" Cir. 1981) 645 F.2d 719 00... cee cc eee eee eees 200 United States v. Galloway (8th Cir. 1992) 976 F.2d 414 20cccee eee 371 United States v. Gaudin (1995) 515 U.S. 506 Jo.ccce cece eee eens 135 |. United States v. Gillespi (9th Cir. 1988) 852 F.2d 475 oo.eeeeee 179 United States y. Guerrero (3d Cir. 1986) 803 F.2d 783 0...ccee eee ene 218 United States v. Gutierrez (9th Cir. 1993) 995 F.2d 169 2.0...cceee 179, 186 United States v. Hall (9" Cir. 2005) 419 F.3d 980 1... cc cece ccc eee eee 202, 205 United States v. Harris (7" Cir. 2006) 464 F.3d 733 ........ Lecce eee eee eee este eee ees 105 United States v. Hernandez (5"™ Cir. 1985) 720 F.2d 1256 2...2ccece cece ees 206 United States v. Hernandez-Cuartas (11th Cir. 1983) 717 F.2d 552 2...cceee 180, 184 United States v. Johns (9" Cir. 1988) 851 F.2d 1131 2...ecce cece 105 United States v. Johnson (5Cir. 1977) 558 F.2d 1225 2...ccccc cee eee 339 United States v. Johnson (8th Cir. 2007) 495 F.3d 951 2...ccceee eee 288 United States v. Jones (11" Cir. 1994) 29 F.3d 1549 oooeee eee eens 110, 115 United States v. Kunen (E.D.N.Y. 2004) 323 F.Supp.2d 390 2.0... eecee ees 108 -li- United States v. Lui (9th Cir. 1991) 941 F.2d 844 ..... United States v. Manriquez-Arbizo (10th Cir. 1987) 833 F.2d 244 .... United States v. McDermott (2d Cir. 2001) 245 F.3d 133 ...... United States v. McVeigh (10th Cir. 1998) 153 F.3d 1166 ... United States v. Mitchell (8" Cir. 1994) 31 F.3d 628 ....... United States v. Moussaoui (4" Cir. 2010) 591 F.3d 263 ...... United States v. Paguio (9th Cir. 1997) 114 Fd.3d 928 .... United States v. Peak (6th Cir. 1974) 498 F.2d 1337 .... United States v. Resko (3d Cir. 1993) 3 F.3d 684 ........ United States v. Rios (10th Cir. 1979) 611 F.2d 1335 ... United States v. Sampson (D.Mass. 2004) 335 F.Supp.2d 166 United States v. Sanchez (9" Cir. 1999) 176 F.3d 1214 ..... -lii- eee cece eee e eee eee 180 cece cece tee ee eee eee eee eae 348 cece eee cece ee eee eee eens 339 eee ee eee teen tenet eens 322 Lee eee eee ee tees 200 cece ee ee eee tee eben eee eee 263 eee cee eee eee cece eee eee 373 ce ee te eee ee tee e eee eee 347 eee ee eee eee eee ee 328, 330-333 cee eee eee eee ee ee eee 215 cee cece eee eee ee ees 321, 356 bee eee eee eee ee eee 220 United States v. Santana (Ist Cir. 1999) 175 F.3d 57 0...ccceects 373 United States v. Schuler (9th Cir. 1987) 813 F.2d978 2.0...ccceee een 373 United States v. Sine (9" Cir. 2007) 493 F.3d 1021 0.0...eeeeee 110, 115, 220 United States v. Smith (9" Cir. 2009) 561 F.3d 934 2...ccc ect cence 227 United States v. Spalding (1935) 293 U.S. 498 20.cccce teen ence eens 173 United States v. Thomas (7th Cir. 1996) 86 F.3d 647 2.0...cc cece nee 215-216 United States v. Warman (6™ Cir. 2009) 578 F.3d 320 1...0.eeens 200 United States v. Webb (9th Cir. 1997) LIS F.3d 711 2... ceeeeee 170, 179, 184 United States v. Westover (D.Vt. 1993) 812 F.Supp. 38 2.0...cccene eee eees 108 United States v. Windfelder (7" Cir. 1986) 790 F.2d 576 2... ccc cece cect eee ees 174 United States v. Whitley (7" Cir. 2001) 249 F.3d 614 2.0... occ cece ect eens 108 United States v. Young (2d Cir. 1984) 745 F.2d 733 20.eeeeee eee 179 -lii- United States ex rel. Bostickv. Peters (7" Cir. 1993) 3 F.3d 1023 0.0... ccceee eee ees 105 Uttecht v. Brown (2007) SSI U.S. 1 oo.cceee 122, 279, 281, 286, 300-301 Van Riper v. United States (2™ Cir. 1926) 13 F.2d 961 00...ceceees 200 Wainwright v. Witt (1985) 469 US. 412 1.2.22... 122, 269, 278-280, 282-283, 286-288, 291, 293-294, 296-297, 300-301, 305-306, 318 Wallace v. Kato. (2007) 549 U.S. 384 2.cccee eee eee een nes 102 Ward v. Illinois (1977) 431 U.S. 767 ......0....... Lee cece eee cece este nee eeees 118 Whorton v. Bockting (2007) 549 US. 406 2...cccence eee eee nes 202 Winebrennerv. United States (8" Cir. 1945) 147 F.2d 322 220ccee eens 330 Witherspoony.Illinois (1968) 391 U.S. 510 2.0.2.2... 127, 269, 281, 285-291, 293-294, 296, 299, 303, 306-307, 309, 318 Wolffv. McDonnell (1974) 418 U.S. 539 2.cccc cece nee ee 126, 369 Woodson v. North Carolina (1976) 428 U.S. 280 20.ccccece eee ee eee nes 380 Wong Sun v. United States (1963) 371 U.S.471 ooccccece enn nees 102 -liv- United States Constitution Art. TID, § 2,1. 32ceenee ence nen enee 117 Fourth Amendment ............. 0.0.00 c eee eee 71, 101-106, 108, 114, 116 Fifth Amendment .......... 0.0.0... 0 ccc cece eee ees 117, 260, 270, 330 Sixth Amendment .................-2-.2-0 00. 117, 122, 124, 135, 260, 270, 281, 287, 323, 330, 332 Eighth Amendment ................--...2-05- 118, 125, 251, 262, 266-268, 270, 287, 332, 351-352, 359, 364, 372, 376-377, 382-383 Fourteenth Amendment .................... 101, 106, 117-118, 126-127, 135, 217, 219, 260, 270, 281, 323, 332, 352, 354, 359, 372, 376-377, 383 California Constitution Art.8 Looe ccc cece cece cece cece ceeesecteeuesrestereeteretneenres 118 Art. 87 occ cece ccceccceccecuceeuueeeueeees 118, 270, 359, 362, 369, 372 Art. 1, 815 0... ccc ceecceecceeveeeeceeees 118, 260, 270, 359, 362, 369, 372 Art. 1, § 16 0c. cece cece cece ceuccceecceuceeuceeucetuuteneeenes 117, 270 Art. 1, 817 occ cece ccc ceeccceeceuececuveeuvceuneeruveans 118, 262, 270 Art. I, § 28, subd. (d) 0.000. cece cece ccecceeecceuceeuceeuceuveneres 100 Art. VI, § 11, subd. (a)... 00. cee ccc c cece eecceeceeecceueeeuceeneeunees 11 //I /// /// -ly- California Statutes Code ofCivil Procedure § 225, subd. (b)(I)(C) 0.ceeen eee eee eee nes 280 Ae|280 Evidence Code 201 § 312, subd. (a) 0...ceene n en tn eben n ents 175 8352 Leeeen een ene e ee ee ee eben eee enees 172 0)163-165 02 170 § 801, subd. (a) 2...ceeee eee e nee e eens 169 $805 Loeeeen ence nee een eee e nee eeees 172 20A 198-199 § 1223, subd. (a) 2...cceee een teen eneee 199, 204 Penal Code S074 228 § 21, subd. (a)...ceeeee eee nee tenn ee eeeee 228 O 178 § 186.22, subd. (D)(1) 2.0.ccccc eee e eee eee 2-5 § 187, subd. (a) 26.cece cee tence tence eee 1,3,5 § 189 Locccc cece cece eee eneeee 141-142, 162, 250 § 190.2, subd. (a)(5) oe eee c cece een cee e eee eeeeneneneny 1-2, 5, 241 § 190.2, subd. (a)(7) 20.cccece eee eens 2, 5, 241, 243 § 190.2, subd. (a)(15) 6...ceeeee 2, 5, 241, 249-251, 258 § 190.2, subd. (a)(22) 2...ccceee 2, 5, 39, 242, 246 § 190.3, subd. 2)...cecenec ence ne eee nes 373 § 190.4, subd. (b) 2.0. ec ee eee een eens 264 § 190.4, subd. (E). 0...ccccence nee n eet eeeneees 9 § 245, subd. (a)(1) ... c c e cee cece tence nee ene 84 § 245, subd. (a)(3) 20...ccccc eect ete e ee eenes 4-5 § 245, subd. (d)(3) 20.cecece cence eet e eee ees 3,5 -lvi- $654 ccc cece cece cee eceuetseneeeeuveeuuteeneteunetenenneen 9 OSor3,5 GOTTceene ee teen ne nn t ett e eens 261 SS0260 § 1093 Loiceeeen nent nee nen eens 130, 132-133 § 1093, subd. (a) 2...cece eee een eee neees 130, 132, 135 § 1122, subd. (b) 20.eenene e nent e ee nenes 328 § 1239, subd. (Db) 0...c cnet n teen teen enna 11 IaS.132-133 6. 116 132-133 § 1538.5 Loeeeteen enn e een enneees 94, 97 § 1538.5, subd. (C)(1) occcc eect eee e ee ee eens 101,114 §12022.5 ...eeecece cence cent n een n ees 5 § 12022.5, former subd. (b)(1) 2.0...ceeee e eee 2,5 § 12022.53, subd. (C) 20...ceceeee n eben nees 2-3,5 § 12022.53, subd. (d) 2...eeee eee eens 2-3, 5 § 12022.53, subd. (€)(1) 2...eeecece teen eees 2-3, 5 § 12022.7, subd. (a) 2...eeteen nen e ene eens 4-5 § 12031, subd. (a(2)(C) 2...c ee nee e nee nnee 178 Stats. 1998, ch. 629, § 2 (Proposition 18) ........... 0.0... eee eee ee 249, 252 Federal Statutes 18 U.S.C. § 3591 occ ccc cece vec eeeceueeeeeveteueeentennesenees 263 18 U.S.C. § 3594 o.oo cece cece ccc cnvcecnveeeuvevunetenernrenes 264 28 U.S.C. § 2254(e)(1) occ ccc cece cece cece eee ceueeeeeteeeeeueeen 290 Pub.L. 104-132, 110 Stat. 1214 (1996) (AEDPA) .......... 00. cece eee eee 290 Sister-State Statutes Alabama Code § 13A-5-46, subd. (g) . 0.0... ccc cece teen nee 265 Arizona Rev. Statutes § 13.752, subd. (K) ............ 00 cece eee eee 265 Arkansas Code Ann. § 5-4-603, subd. (C) 2.0...eccc eens 264 -lvii- 4 Colorado Rev.Statutes § 18-1.3-1201, subd. (2)(d) ........-..........0.. 264 Delaware Code Ann.tit. 11, § 4209, subds. (c)(3)(b)(1) & (2) .. 0.2.22... 265 Florida Statutes § 921.141, subds. (2) & (3)... 0.ee ee eee 265 Georgia Code Ann.§ 17-10-31, subd. (c) ......... 00.0... 00. eee eee eee 264 Idaho Code § 19-2515, subd. (7)(b) 2.0... eee cee eee eee ences 264 Illinois Compiled Statutes, tit. 720, § 5/9-1, subd. (g) .............2.0000-. 264 Indiana Code Ann.§ 35-50-2-9, subd. (f) ..... 0.0... cee eee eee 265 Kansas Statutes Ann. § 21-4624, subd. (€) ... 0...eeee nee 264 Louisiana Code of Crim. Proc., art. 905.8... 0.0.0... ccc cee eens 264 Maryland Crim. Law Code Ann. § 2-303, subd. (j)(2) ...........-...008. 264 Mississippi Code Ann. § 99-19-101, subd. (3)(c) ........... 0.020. 0000-- 264 Missouri Rev. Statutes § 565.030, subd. (4) ...... 0.0... cece eee 264 Montana Code Ann. § 46-18-305 2.0.2... 0.ceeeee 265 Nevada Rev. Statutes Ann. § 175.556, subd. (1) ........ 0.0.0.0... ce eee 265 New Hampshire Rev.Statutes Ann. § 630:5, subd. (IX) .................-. 264 North Carolina Gen. Statutes § 15A-2000, subd. (b) ..................0.. 264 OklahomaStatutes Annotatedtitle 21, section 701.11 ..........0......00.. 264 Ohio Rev. Code Ann. § 2929.03, subd. (D)(2) ......... 0.02 eee ee 264 Oregon Rev. Statutes § 163.150, subds. (2)(a) & (1)(c)(B) ................ 264 Pennsylvania Consolidated Statutes Ann., tit. 42 § 9711, subd. (c)(I)(v) ....... 264 South Carolina Code Annotated section 16-3-20, subd. (c) ................ 264 South Dakota Codified Laws section 23A-27A-4 2.0.0... 0... eee 264 Tennessee Code Ann.§ 39-13-204, subd. (h) ......... 0.0.0. eee ee 264 Texas Code of Crim. Proc. Ann., art. 37.071.2, subd. (g) ................ 264 Utah Code Ann. § 76-3-207, (c) subd. (5)(C) 20...eeeee eee 264 Virginia Code Ann.§ 19.2-264.4, subd. (E) ..... 0.0... ccc eee nee 264 Washington Rev. Code Ann. § 10.95.080, subd. (2) .................05. 264 Wyoming Statutes Ann. § 6-2-102, subd. (d)(iiI) .. 0.6.2.0... 0.022.000.0068. 264 Rules Federal Rules of Evidence, rule 704, subd. (b) .........0..0. 0000000 c eee ee 174 Rules of Court, rule 8.600(a) 2.0... 0.eccece nen ences 1] -]viii- Model Jury Instructions CALJIC No. 2.01 ccc cece ccecceccceccuceeceuceeceues 222, 225, 231, 237, 239-241 No. 2.02 0. 0c cece ccecceeceeceuceees 222-225, 231-232, 235, 237, 239-241 NO. 6.11 oo ccc cece ccc c ccc cecceeeeeteuteusentsuctuteeuctneennens 139 NO. 8.20 oo e ccc ccc cccecceecceetceuetueseeteneeusneeustutenenes 137 NO. 8.25 occ cece ccc ccecceccceceuceeceeesuetuetuteetuetneenvenes 137 No. 8.81.15 occ ccc cc ccc ce ccc ceececuceuceetueeueuteeseeenteennes 249 NO. 8.81.22 oo. c cece cceccccecceeeesucsesuveuseuceereeetuernennes 246 NO. 8.83 occ ccc cecceccecceuccuceueeuctuvseteuvererneenes 239-241, 248 NO. 8.83.1 oc ccc ccccccccecceccueceeeuceeeseucnceneueenes 239, 241, 248 CALCRIM L239-240 NO. 705 occ ccc cecccceceeceeeeucueeeceeeuteucteeveutenennes 239-240 NO. 736 ce ccccccceccuccecceuceeesueeuceuveuveretnetetseeeueenees 246 NO. 766 oc cece cece ccc ccuccuceucueeueueeeeeeceeveusnernterees 375 NO. 2530 oc. cece cece cece cccuceeceeeeuseuteeeeveutentrnernters 178 Other Authority/References Annot., Admissibility in Criminal Case, on Issue ofDefendant’s Guilt, ofEvidence that Third Person Has Attempted to Influence a Witness Not to Testify or to Testify Falsely (1977) 79 A.L.R.3d 1156 2...eeees 290 Bienen, Criminal Law: The Proportionality Review ofCapital Cases by the State High Courts After Gregg: Only “The AppearanceofJustice”? (1996) 87 J. Crim. L. & Criminology 130 ...............-..02006- 117 Black’s Law Dict. (Sth ed. 1979) 20...eeeences 73 -lix- Blume,et al., Future Dangerousness in Capital Cases: Always “At Issue” (2001) 86 Cornell L.Rev. 397 0... ccc cceecceccceeceueeuveeeees 365 Bowers & Steiner, Death by Default: An Empirical Demonstration ofFalse and Forced Choices in Capital Sentencing (1999) 77 Tex. L-.Rev. 605 2.0... 0... ccc ccc eee nee 368 Carroll, Alice’s Adventures in Wonderland (1865) ................-0000- 371 Chase, Is Crawford a “Get Out ofJail Free” Cardfor Batterers and Abusers? An Argumentfor a Narrow Definition of “Testimonial” (2005) 84 Or. L.Rev. 1093 2...eeeee eee eee 203 Cohen & Smith, The Death ofDeath-Qualification (2008) 59 Case W. Res. 87 0.0... cece ce cc eee 123, 125, 127 Comment, “For It Must Seem Their Guilt”: Diluting Reasonable Doubt by Rejecting the Reasonable Hypothesis ofInnocence Standard (2007) 53 Loy. L. Rev. 217 2...ecccc eee eens 233 Eisenberg & Wells, Deadly Confusion: Juror Instructions in Capital Cases (1993) 79 Cornell L.Rev. 11]... 1.0 ccccccene 378 Hale, Historia Placitorum Coronae (1736) ......... 0... ccc eee eee 149 Halpern, Federal Habeas Corpus and the Mapp Exclusionary Rule After Stone v. Powell (1982) 82 Colum. L-Rev. 1... 0.2... cece ec eee eens 104 Hamilton, The Federalist No. 83 .. 0.2.0... ccc ec ec cece ee eee eee 180 /// -lx- Hobson, Reforming California’s Homicide Law (1996) 23 Pepp. L.Rev. 495 2.0... ccc cee ene 229 Kirkpatrick, Nontestimonial Hearsay After Crawford, Davis and Bockting (2007) 19 Regent U. L.Rev. 367 «0.0... 0.ceeene 202 McCormick on Evidence (6th ed. 2006) ...................000. 172-173, 182 Mounts, Premeditation and Deliberation in California: Returning to a Distinction Without a Difference (2002) 36 U.S.F. L.Rev. 261 ..................000-. 145, 152, 156-157 Motomura, Using Judgments as Evidence (1986) 70 Minn. L.Rev.979 0.0... .eeecette eee 74 Mulroy, Avoiding “Death by Default”: Does the Constitution Require a “Life Without Parole” Alternative to the Death Penalty? (2004) 79 Tul. L.Rev. 401 2.0... eee eee eee 364-365, 374 Oxford English Dictionary (2d ed. 1989) ....... 0... cece ee ene 246 Prosser, Transferred Intent (1967) 45 Tex. L.Rev. 650 2.0.00... eeececee 148 Reece, Mothers Who Kill: Postpartum Disorders and Criminal Infanticide (1991) 38 UCLA L. Rev. 699 2.0...ceeee eens 176 Robbins, Semiotics, Analogical Legal Reasoning, and the Cf. Citation: Getting Our Signals Uncrossed (1999) 48 Duke L.J. 1043 2...eeeeens 102 /// /// -]xi- Rosenberg & Rosenberg, “Perhaps What Ye Say Is Based Only on Conjecture” — Circumstantial Evidence, Then and Now (1995) 31 Hous. L.Rev. 1371 2.0.2...ceeees 234 Sevilla, Combating the Fact Smuggler (1998) 22 Champion 22 ....... 0.0... eeeeeeees 348 Shakespeare, The Merchant of Venice ........... 0... ce eee eee eee eens 380 Steiker, Commentary: Things Fall Apart, But the Center Holds: The Supreme Court and the Death Penalty (2002) 77 N.Y.U. L. Rev. 1475 20.ccceee nes 117 Weinstein’s Evidence (1995) .....-..cccccceeccesececeeeeees bocceees 170 Wharton’s Criminal Evidence (13" ed. C. Torcia 1972) ...............0.. 216 Whatorn’s Criminal Evidence (15" ed. 1997) 2.0.00... 0... c ee 216 Witkin, California Evidence (4 ed. 2000) ........00 00.0. cece eee eee ees 245 Witkin & Epstein, California Criminal Law (3d ed. 2000) .. 0...eeeeens 142, 228, 245 -1xii- IN THE SUPREME COURT OF THE STATE OF CALIFORNIA THE PEOPLE OF THE STATE ) Case No. $115872 OF CALIFORNIA, ) ) (Los Angeles County Superior Plaintiff/Respondent, ) Court case number BA240074) ) V. ) ) RAMON SANDOVAL,JR., ) ) Defendant/Appellant. ) ) -- 000 -- STATEMENT OF THE CASE On February 9, 2001, a Los Angeles County Grand Jury returned a four- count indictment against defendant and appellant, Ramon Sandoval, Jr. (2 CT 482-486.)' In count I, Mr. Sandoval was charged with murder, in violation of Penal Code section 187, subdivision (a). The murder charge was accompanied by four special circumstance allegations, viz., 1) the murder was committed for the purpose of preventing or avoiding a lawful arrest (Pen. Code, § 190.2, subd. ' Charged along with Mr. Sandovalin the indictment were codefendants Adolfo Ramon Bojorquez and Miguel Angel Camacho. (2 CT 482-486.) -|- a d (a)(5)); 2) the victim was a peace officer who Mr. Sandovalintentionally killed while the victim was engagedin his official duties, and Mr. Sandoval knew,or reasonably should have known,the victim was a peace officer engaged in his official duties (Pen. Code, § 190.2, subd. (a)(7)); 3) the murder wasintentionally committed by meansoflying in wait (Pen. Code, § 190.2, subd. (a)(15); and 4) the murder wasintentionally committed while Mr. Sandoval was an active participant in a criminal street gang, and the murder wascarried out to further the activities of the gang. (Pen. Code, § 190.2, subd. (a)(22).) The murder charge was also accompaniedby allegations that Mr. Sandoval personally and intentionally discharged anassault rifle, proximately causing the victim’s death (Pen. Code, § 12022.53, subds. (c) and (d)), and caused the victim’s death by discharging a firearm at an occupied motor vehicle. (Pen. Code, § 12022.5, former subd. (b)(1).) Finally, the murder charge was accompaniedbyallegationsthat a principal proximately caused the victim’s death by intentionally discharging an assault rifle (Pen. Code, § 120222.53, subds. (c), (d), and (e)(1)), and that the offense was committed for the benefit of, at the direction of, or in association with a criminal street gang, with the specific intent to promote, further, and assist in criminal conduct by gang members. (Pen. Code, § 186.22, subd. (b)(1).) (3 RT 332-333; 2 CT 482-484.) In count II, Mr. Sandoval was charged with attempted murder, in violation of Penal Code sections 664 and 187, subdivision (a). That charge was accompaniedbyallegations that Mr. Sandoval proximately caused great bodily injury to the victim by intentionally discharging an assault rifle (Pen. Code, § 12022.53, subds. (c) and (d)), that a principal proximately caused great bodily injury to the victim by intentionally discharging an assault rifle (Pen. Code, § 120222.53, subds.(c), (d), and (e)(1)), and that the offense was committed for the benefit of, at the direction of, or in association with a criminal street gang, with the specific intent to promote, further, and assist in criminal conduct by gang members. (Pen. Code, § 186.22, subd. (b)(1).) (3 RT 333-335; 2 CT 484-485.) In count II, Mr. Sandoval was charged with assaulting a peace officer with an assault weapon,in violation of Penal Codesection 245, subdivision (d)(3). That charge was accompanied by allegations that Mr. Sandoval proximately caused great bodily injury to the victim by intentionally discharging an assault rifle (Pen. Code, § 12022.53, subds. (c) and (d)), that a principal proximately caused great bodily injury to the victim by intentionally discharging an assault rifle (Pen. Code, § 120222.53, subds.(c), (d), and (e)(1)), and that the offense was committed for the benefit of, at the direction of, or in association with a criminal street gang, with the specific intent to promote, further, and assist criminal conduct -3- a d a by gang members. (Pen. Code, § 186.22, subd. (b)(1).) (3 RT 335-336; 2 CT 485- 486.) In count IV, Mr. Sandoval was charged with committing an assault with an assault rifle, in violation of Penal Code section 245, subdivision (a)(3). That charge was accompaniedbyallegations that Mr. Sandoval personally inflicted great bodily injury upon the victim (Pen. Code, § 12022.7, subd. (a)), and that he personally used an assault rifle. (Pen. Code, § 12022.5.) (3 RT 336; 2 CT 486.) The foregoing charges andallegations are summarizedin the table set forth on the following page:” /// /// //] * All statutory referencesin the table are to the Penal Code. -4- Count Victim Charge EnhancementAllegations I Daryle Black Murder (§ 187, subd. (a)) * Personal discharge of firearm causing death (§ 12022.53, subds.(c), (d)) ¢ Fatal discharge of firearm at motor vehicle (§ 12022.5, former subd. (b)(1)) * Principal causing death by discharging firearm (§ 12022.53, subds.(c), (d), (e)(1)) * Offense committed for gang purposes (§ 186.22, subd. (b)(1)) Special Circumstance Allegations ¢ Preventing arrest (§ 190.2, subd. (a)(5)) * Killing a peace officer (§ 190.2, subd. (a)(7)) ¢ Lying in wait (§ 190.2, subd. (a)(15)) * Gang-related (§ 190.2, subd. (a)(22)) II Rick Delfin Attempted Murder (§§ 664, 187, subd.(a)) ¢ Personal discharge of firearm causing death (§ 12022.53, subds.(c), (d)) * Principal causing death by discharging firearm (§ 12022.53, subds.(c), (d), (e)(1)) ¢ Offense committed for gang purposes (§ 186.22, subd. (b)(1)) Il Rick Delfin Assault Upon a Peace Officer with an Assault Weapon (§ 245, subd. (d)(3)) * Personal discharge of firearm causing death (§ 12022.53, subds.(c), (d)) * Principal causing death by discharging firearm (§ 12022.53, subds.(c), (d), (e)(1)) * Offense committed for gang purposes (§ 186.22, subd. (b)(1)) IV MariaCervantes Assault with anAssault Weapon(§ 245, subd. (a)(3)) * Personal infliction of great bodily injury(§ 12022.7, subd. (a))* Personal use of assault weapon (§ 12022.5) a s w e s a On February 15, 2001, the superior court found the indictment to be a true bill. (2 CT 494.) On February 16, 2001, Mr. Sandoval was arraigned on the indictment. He entered pleas of not guilty to all charges and deniedall allegations. (2 RT 37-38; 2 CT 497.) On April 10, 2001, the Los Angeles County Superior Court ordered the case transferred to the Long Beach Division of the Superior Court. (2 CT 523.) On November 13, 2001, the prosecutor notified the court that the district attorney’s office was seeking the death penalty for Mr. Sandoval. (2 RT 117; 1 Supp. III CT 66.) On March6, 2002, the superior court severed the case against Mr. Sandoval from the case against Messrs. Bojorquez and Camacho. (2 RT 199; 4 CT 1083, 1086.) On July 9, 2002, the superior court denied Mr. Sandoval’s motion for a 90- day continuanceofthe jury trial. (4 CT 1098.) Jury trial commenced on September 23, 2002. (5 CT 1137.) /// > Thedistrict attorney’s office did not seek the death penalty as to Messrs. Bojorquez and Camacho. (2 RT 189.) -6- Twelve jurors and four alternates were sworn on October 3, 2002. (5 CT 1154.) On October 7, 2002, the court excused juror numberten, and alternate juror numberthree was chosenbylotto fill the vacancy. (5 CT 1156.) The prosecution rested its guilt phase case on October 16, 2002. The defense presented no case. (10 RT 1974; 5 CT 1716.) The prosecution and defense argued the case, and the court instructed the jury. Deliberations commenced at approximately 3:50 p.m. (5 CT 1176.) Thejury deliberated for a full day on October 17, 2002 (CT 1177), and for anotherfull day on October 18, 2002. (5 CT 1180). The jury returned its guilt phase verdicts on October 21, 2002, finding Mr. Sandoval guilty on every charge, and finding every allegation, including the four special circumstanceallegations, to be true. (5 CT 1267-1272, 1277-1280, 1283- 1286.) Penalty phase proceedings commenced on October23, 2002. (5 CT 1292.) On October 29, 2002, the parties argued the case and the court instructed the jury. (5 CT 1305.) Penalty phase deliberations commenced on October 30, 2002. (5 CT 1307.) /f/ a s a e On November4, 2002, the court removed juror numberthree, and alternate juror numbertwowasselected to fill the vacancy. (5 CT 1310.) On November5, 2002, the jury announcedthat it was deadlocked inits penalty phase deliberations. (5 CT 1312, 1343.) After ascertaining that the jurors weresplit seven-to-five, the court determined the jury was hopelessly deadlocked and declared a mistrial. (5 CT 1344.) A penalty phaseretrial commenced on March 17, 2003. (5 CT 1386.) On March 27, 2003, twelve jurors and four alternates were sworn for the penalty phaseretrial. (6 CT 1411.) On April 1, 2003, per the stipulation of the parties, alternate juror number one was excused. (6 CT 1416.) Also on April 1, 2003, the parties gave opening statements and the presentation of evidence commenced. (6 CT 1416.) On April 4, 2003, the court denied Mr. Sandoval’s motion to dismiss alternate jurors due to juror misconduct. (19 RT 3897; 6 CT 1426.) On April 11, 2003, the parties argued the case, and the court instructed the jury. Deliberations commenced at approximately 3:37 p.m. (6 CT 1440-1441.) On April 14, 2003, the jury returnedits verdict, fixing the penalty at death. (6 CT 1500, 1502-1503.) /// On May5, 2003, Mr. Sandovalfiled a motion for a new trial and a new penalty phase. (6 CT 1505-1508.) On May 9, 2003, the superior court entered an order denying an automatic motion to modify the jury’s death verdict pursuant to Penal Code section 190.4, subdivision (e). (6 CT 1522-1527, 1549.) Also on May 9, 2003, the court denied Mr. Sandoval’s new trial motion. (6 CT 1549.) Also on May 9, 2003, the court sentenced Mr. Sandoval to death. (6 CT 1548A-1548-1,* 1549-1553, 1566-1567.) The court imposed an additional term of 35 years to life as to count I, a consecutive term of 50 yearsto life as to countII, and a consecutive term of 25 years as to count [V. The court ordered these terms - stayed in light of Mr. Sandoval’s death sentence, but stated its intention for the stay to be lifted in the event of a reversal, modification, or reduction of Mr. Sandoval’s death sentence. Pursuant to Penal Code section 654, the court stayed the imposition of punishmentas to count III. (6 CT 1548-F-1548-G, 1558-1561, 1568-1570A.) //1/ “ Between pages 1548 and 1549 ofthe clerk’s transcript are nine pages numbered 1548A to 1548]. -9- Mr. Sandoval’s automatic notice of appeal was filed on May 13, 2003. (6 CT 1573.) /// //1/ /// -10- STATEMENT OF APPEALABILITY This is an appeal from a final judgment of death that disposesof all issues betweenthe parties. This appeal to this court is automatic. (California Constitution, article VI, section 11, subdivision (a); Penal Code section 1239, subdivision (b); Rules of Court, rule 8.600(a).) /// /// /// -ll- STATEMENT OF FACTS A. Guilt Phase Evidence On the evening of April 29, 2000, Mr. Sandoval and several fellow gang membersset outto retaliate against the leader of a rival gang. The leaderofthe rival gang was knownas Toro. (6 RT 1139; 9 RT 1809; 2 CT 280-282, 287-289.) Mr. Sandoval belonged to the Barrio Pobre (B.P.)° gang. (6 RT 1157; 2 CT 277.) Toro was a memberofthe East Side Paramount(E.S.P.) gang. (9 RT 1817; 2 CT 287.) Earlier in the evening, individuals whoidentified themselves as E.S.P. members, had driven to a location where B.P. members frequently congregate, and fired gunshots at several B.P. members, including Mr. Sandoval. (10 RT 1969- 1970; 2 CT 276-278.) Withthe intention of retaliating against E.S.P., Mr. Sandoval and his cohorts armed themselves, drove to Toro’s residence in two vehicles, and positioned themselvesin front of Toro’s home. (2 CT 281-282.) As one of Mr. Sandoval’s fellow gang members was walking onthestreet in front of Toro’s residence, an unmarked,albeit readily identifiable, police vehicle happened upon the scene. (7 RT 1505-1506; 9 RT 1762-1764, 1769-1770; 2 CT 292-293.) Two ° Translated into English, “barrio pobre” means “poor town.” (9 RT 1796; 2 CT 313.) -12- Long Beach Detectives, Daryle Black and Rick Delfin, were in the police vehicle. (8 RT 1560-1566.) Detective Delfin, who was driving, maneuvered the vehicle toward the gang member whowaswalking in front of Toro’s residence. (9 RT 1773-1775; 2 CT 295-296.) Mr. Sandoval, who was holding a semi-automatic CAR-15, fired 28 shots at the police vehicle. (8 RT 1666-1667; 2 CT 296-299.) Oneofthe shots struck Detective Black in the head and killed him. (8 RT 1732.) Detective Delfin was also struck by the gunfire. He wasseriously injured, but survived. (7 RT 1493-1500; 8 RT 1570-1577.) Another one of the shots went through the wall of a nearby homeandstruck Maria Cervantes, who was sleeping in her bed. Ms. Cervantes was pregnant. The shot lodged in Ms. Cervates’ abdomen, within inches of her unborn child. Ms. Cervantes survived, and she later successfully delivered her baby. (7 RT 1531-1539; 8 RT 1738-1742.) 1. Gang Evidence Numerous Hispanic gangsexist in the greater Los Angeles area. The gangs have deephistorical roots. (9 RT 1821.) Twoofthese gangs are B.P. and E.S.P. Theyare rivals. (8 RT 1593-1594; 9 RT 1809-1810, 1837, 1876.) The rivalry between these two gangsis violent, involving shootings and turf warfare. The rivalry exists despite the fact that B.P. and E.S.P. are both Surefio® gangs. (9 RT ° Translated into English, “Surefio” means “southerner.” (9 RT 1873.) -13- 1809-1811, 1817-1819, 1878-1879.) Membersof Surefio gangs such as B.P. and E.S.P. are ultimately controlled by the Mexican Mafia, a notorious prison gang. (9 RT 1873-1874.) B.P. and E.S.P. are both criminal street gangs. Over the years, B.P. and E.S.P. members have committed murders and litany of other crimes. (7 RT 1275-1276; 9 RT 1822-1825.) A gang expert testified that B.P had approximately 200 members. (9 RT 1909.) Gangslike B.P. and E.S.P. often subdivide into cliques. For instance, the B.P. membersinvolvedin this case belonged to separate cliques in Compton and Long Beach. (6 RT 1216-1217; 8 RT 1595; 9 RT 1791, 1876, 1910.) The E.S.P. gang is comprised of seven cliques. (8 RT 1594.) E.S.P., which is based in Paramount, beganinfiltrating areas in Long Beach in the 1990s. (8 RT 1594- 1595.) Surefio gangs in the Los Angeles area recruit members. They are selective in terms of those they accept to become members. Numerous young menaspire to become gang members. Aspiring membersare onlyinitiated if they are able to endure a violent initiation process, involving physical beatings. (9 RT 1913.) They must not show weakness during their initiation. The members are often quite young — in their early teenage years — whentheyare recruited and -14- initiated. (9 RT 1913-1914.)’ Membersof Surefio gangs conduct themselves pursuantto a codeofethics. Respect is a prized characteristic in Surefio culture. It is attained byinstilling fear in rivals as well as fellow gang members. (9 RT 1869-1871.) Loyalty amongst Surefio members can take precedence overfamilial loyalty. (9 RT 1821-1822.) In neighborhoodsin which B.P.has established a footing, it is frowned upon for individuals associated with the gangto testify in court concerning matters related to B.P. (6 RT 1184.) Mr. Sandoval was a B.P. member. (6 RT 1157; 2 CT 277.) Specifically, he was a member of the B.P. Compton clique. (6 RT 1217; 2 CT 315.) He was knownbyhis gang monikers — Gumby and Menace. (6 RT 1213, 1249; 2 CT 277.)8 Mr. Sandoval’s codefendants in this case, Adolfo Ramon Bojorquez and Miguel Angel Camacho, were also B.P. members. (6 RT 1125, 1162, 1217-1218; 7 A female memberofB.P.testified in Mr. Sandoval’strial. Like her male counterparts, she was “jumped”into the gang. (6 RT 1252.) ’ Mr. Sandovalhastattoos on his bodyreflecting his membership in B.P. (6 RT 1162-1163, 1240; 7 RT 1379, 1409; 9 RT 1795-1799; 1 CT 107; People’s Exhibit 8.) At the time of the relevant events in this case, Mr. Sandoval also had one notch cut out of his right eyebrow and three notchescut out ofhisleft eyebrow — together representing the number 13. (7 RT 1379.) The number13 signifies affiliation with the Surefio gang. (9 RT 1798-1799, 1876-1881.) -15- 8 RT 1589; Aug. RT? 25.)'° They were knownby their gang monikers, Grumpy and Rascal, respectively. (6 RT 1125, 1207; 2 CT 310-311.)'' Mr. Camacho was one of B.P.’s leaders. (7 RT 1427.) The intended victim in this case, Vincent Ramirez, a.k.a., Toro, was a high- level memberof E.S.P. (6 RT 1136, 1139, 1266; 7 RT 1284; 9 RT 1809, 1817.) He wasan active E.S.P. “shot-caller” from 1989 to 2000. (9 RT 1817; 2 CT 287.) Mr. Sandoval knew Toro from previous contacts. (2 CT 287.)'” 2. B.P. Meeting at Lazy’s Home In the early afternoon on Saturday, April 29, 2000, numerous B.P. members convened for a meeting at Christine Estrada’s residence. (6 RT 1158, 1222, 1236, //1 ” “Aug. RT”refers to the augmented reporter’s transcript of proceedings conducted on November16, 2001. '° As noted in the Statement of the Case, ante, prior to the commencement oftrial, the superior court severed the case against Mr. Sandoval from the case against Messrs. Bojorquez and Camacho. (2 RT 199; 4 CT 1083, 1086.) '’ Like Mr. Sandoval, Mr. Camacho was a memberofthe B.P. Compton clique. (6 RT 1217.) Although evidence waspresented that Mr. Bojorquez also belonged to the Compton clique (6 RT 1918), the prosecutortold the jury in his opening statement that Mr. Bojorquez was a memberofthe Long Beachclique. (6 RT 1088.) '* Mr. Camachotold police that Toro had previously shot Mr. Sandoval. (Aug. RT 55-56.) However, that evidence was not presented to the jury. -16- 1250-1251; 7 RT 1305-1315.)"° Ms. Estrada is a B.P. member. (6 RT 1214; 2 CT 286.)'* Her gang moniker is Lazy. (6 RT 1249; 2 CT 286.)!° Her residence was located at 5567 Dairy Street in Long Beach. (9 RT 1858.) The meeting was conducted in the backyard. (6 RT 1197.) The meeting lasted approximately one- to-two hours. (7 RT 1315, 1380.) Only male B.P. members participated in the meeting. (7 RT 1315-1316.)'® They drank quite a bit of beer during the meeting. (7 RT 1346.) Messrs. Sandoval, Bojorquez, and Camacho werepresent during the meeting. (6 RT 1227, 1240-1241; 7 RT 1307, 1310-1311.) Mr. Camacho, who occasionally stayed at Lazy’s Dairy Street residence (7 RT 1301-1302, 1351, 1390, 1396, 1424), had been involved in organizing the meeting. In the days leading up to the meeting, he had madecalls to gang /// /// '3 ‘Witness estimates as to the number of B.P. memberspresentat the meeting varied from 10 to 40. (6 RT 1172-1173; 7 RT 1404.) '’ At the time of her testimony in Mr. Sandoval’s trial, Ms. Estrada was 26. She became involved with B.P. at the age of 14. (6 RT 1215.) 'S Christine Estrada’s sister, Angela Estrada (6 RT 1194), was also a witnessat trial. (6 RT 1156.) Thus, for the sake ofclarity, further references to Christine Estrada will be to her gang moniker, Lazy. '© Male B.P. members do not speak with female B.P. members about gang business. (6 RT 1253.) -17- members and had taken down notes. (7 RT 1398, 1403.)'’ One ofthe female residents at Lazy’s home heard Mr. Camachostate that the purpose of the meeting was to address concerns onthe part of certain gang membersthat other gang members were“slacking off” and allowingrival gang members to get away with displaying graffiti in B.P. territory. (7 RT 1404; 9 RT 1889.) In his notes, Mr. Camacholisted the B.P. monikers for himself, Messrs. Sandoval and Bojorquez, and other members of the gang. (9 RT 1791, 1889; People’s Exhibit 26'*.) He also wrote that B.P. members were spending too much time “hang[ing] out,” that they had “no straps,” 1.e., guns, and that there were “not enough dead motherfuckers.” According to a gang expert, the reference to “not enough dead mother fuckers” reflected Mr. Camacho’s concern that B.P. members were notkilling enough membersofrival gangs. (9 RT 1889; People’s Exhibit 26.) Additionally, Mr. Camacho’s notescalled for all B.P. membersto contribute money to buy guns. (9 RT 1890; People’s Exhibit 26.) Finally, the notes '7 Papers on which Mr. Camacho wrote out these notes were contained in People’s Exhibit 26. (7 RT 1303, 1399.) '® Oneset of exhibit numbers wasusedfor the guilt phase and the original penalty phase. (1 RT 1-F—1-I; 5 CT 1346-1356; 6 CT 1650-1671.) A somewhat different set of exhibit numbers wasusedfor the penalty phaseretrial. (1 RT 2- E-2-G; 6 CT 1634-1649.) Unless otherwise noted, references herein to exhibit numbersare to the exhibit numbers used in the guilt phase and the original penalty phase. -18- contained an exhortation to B.P. members: “Get your ride on you bitch-ass fools.” (9 RT 1891; People’s Exhibit 26.) According to the gang expert, this was call for B.P. members to do whatever the gang required of them. (9 RT 1891.) During the meeting, one of the gang members wasphysically disciplined and injured by fellow B.P. members. (6 RT 1224-1225; 7 RT 1315.) The meeting concluded at approximately 3:00 to 4:00 p.m. (7 RT 1318.) 3. E.S.P. Drive-By Shooting After the meeting at Lazy’s home, approximately 15 B.P. members, including Mr. Sandoval, went to an alleyway off Atlantic Avenue. (2 CT 276- 277.) The alleyway is in Compton, located approximately three and one-half miles away from Lazy’s home in Long Beach. (9 RT 1858.) The alleyway was a common “hang out” for B.P. members. (9 RT 1859, 1861; People’s Exhibits 66 & 67.) The alley is near an abandoned housethat B.P. membersalso used. (9 RT 1861.) On the evening in question, the B.P. members were “hanging out” and drinking in the alleyway. (7 RT 1318-1319; 9 RT 1858-1861; 10 RT 1969-1970; 2 CT 276-278.) While the B.P. members werein the alleyway, individuals identifying themselves as E.S.P. members drove by in a car, screamed out, “Fuck B.P.,” and fired gunshots at the B.P. members. (10 RT 1969-1970; 2 CT 278.) No one was -19- e t hit by the gunfire. (2 CT 278.) The E.S.P. members drove off. B.P. members pursued them, but were unable to catch up with them. (9 RT 1892; 2 CT 278.) 4. B.P. Members Arm Themselves and Return to Lazy’s Home Mr. Sandoval and fellow B.P. members decidedto retaliate against E.S.P. (2 CT 281.) Specifically, they decided to go after Toro, who, as noted above, was an E.S.P. shot-caller. (2 CT 287.) They planned to go to Toro’s residence in Long Beach, knock on his door, and shoot him. (2 CT 288-289.)'° Five B.P. membersset outto retaliate against Toro: Mr. Sandoval and Juan Camacho got into Juan Camacho’s red Chevy Beretta. (7 RT 1328; 2 CT 281- 282.) Juan Camacho, whose monikeris Pipas (6 RT 1208), is Miguel Camacho’s brother. (2 RT 176-178; 6 RT 1080; 17 RT 3526; 18 RT 3569, 3607.)°° Mr. Bojorquez, Rascal,”' and Julio del Rio got into Mr. Del Rio’s grey four-door Gang experts called to testify by the prosecution explained that, in the street-gang culture in which B.P. and E.S.P. members were immersed, the E.S.P. drive-by shooting was a showing ofdisrespect for B.P., which essentially necessitated retaliation. A failure on B.P.’s part to seek “payback” would have been perceived as a sign of weakness. (9 RT 1812-1813, 1893.) *° Forthe sake ofclarity, further references to Juan Camacho and Miguel Camachowill be to their gang monikers, Pipas and Rascal, respectively. *! Throughout the record, Miguel Camacho’s monikeris alternately spelled Rascal (6 RT 1162, 1178, 1187; 2 CT 285; Supp. V CT 43) and Raskal. (6 RT 1079, 1125; 7 RT 1424; 8 RT 1596; 10 RT 1934.) The former spelling is used in this brief. -20- IRLENG VieRITALANgEITas 6 Re ne ata Se geet Ne eer oe commandneada ne caae oe Honda. (10 RT 1093; 2 CT 281-282.) Mr. Del Rio’s B.P. moniker is Sparky. (6 RT 1079; 10 RT 1959.) According to Mr. Sandoval, the five of them drove to Lazy’s home, where the meeting had occurred earlier in the day. (2 CT 282-283.)En route to Lazy’s home, Messrs. Sandoval and Del Rio stopped at Mr. Del Rio’s homein order to retrieve a CAR-15. (9 RT 1892; 2 CT 284-285.) Mr. Del Rio, Mr. Bojorquez, Rascal, and Pipas already had guns: Mr. Del Rio had a .38 Super, Mr. Bojorquez had a .45-caliber Gold Cup, Rascal had a Colt .45 pistol, and Pipas had a .38- caliber revolver. (2 CT 283-286.) Mr. Bojorquez’s girlfriend, Lucinda Lara, had a recollection regarding the foregoing that differed slightly from Mr. Sandoval’s recollection. (7 RT 1318.) Ms. Laratestified that she, Lazy, and Lazy’s sister (Angela Estrada) had driven to the alleyway in Compton. They picked up Mr. Bojorquez and Miguel Lozano,” and, at approximately 8:30 to 9:00 p.m., drove them back to Lazy’s home. (7 RT 1318-1321.) At approximately 10:20 p.m., five people arrived — Mr. Sandoval, 2 Mr. Sandoval divulged this information to homicide detectives during the course of his confession on May 2, 2000. Further details regarding Mr. Sandoval’s confession are discussed below. 23 Mr. Lozano is a B.P. member. His moniker is Wackoe. He wasdating Lazy. (6 RT 1223.) -21- Rascal, Pipas, Refugio Angulo,” and a person Ms.Lara did not recognize. (7 RT 1323-1324.) Before those five people had arrived, Ms. Lara and Mr. Bojorquez had been together inside a bedroom in the residence. (7 RT 1321-1322.) According to Ms. Lara’s step-sister, Kristen Trochez, the five B.P. members whoarrived at Lazy’s home on the evening of April 29, 2000, were Mr. Sandoval, Pipas, Rascal, Mr. Bojorquez, and Mr. Lozano (Wackoe). (7 RT 1382.) In any event, a group of B.P. members stayed at Lazy’s homefor approximately 30 minutes. (2 CT 286.) While they were in Lazy’s home,they turned off the lights and frequently looked outside. They mentioneda jeep that was repeatedly driving by the residence, and they seemed concerned aboutit. (7 RT 1324-1325, 1343, 1346-1347, 1404-1405.) Mr. Sandoval held the CAR-15. The other B.P. members also had guns. (6 RT 1207-1208; 7 RT 1326, 1348.) Rascal retrieved a dark sweater, and Mr. Bojorquez retrieved a dark jacket. (7 RT 1330, 1383-1384, 1406.) Then, the B.P. members departed together. (7 RT 1328, 1382.) /// /// ** Mr. Angulo is a B.P. member. His moniker is Cuko. (7 RT 1293, 1309.) > At the time, Ms. Lara wasresiding in Lazy’s home. (7 RT 1299-1300.) -22- J. B.P. Members Goto Toro’s Residence on Lime Avenue Toro resided at 1968 Lime Avenue with his common-law wife, Desirée Rodriguez. (6 RT 1266; 7 RT 1277.)* Toro waspresentinside his residence when the B.P. membersarrived there at approximately 11:00 p.m. (7 RT 1279, 1287.) Also present with him in the home were Ms. Rodriguez and approximately 20 younggirls, ranging in ages from two months to 16 years. They wereall there celebrating the birthday of Ms. Rodriguez’s niece. (7 RT 1280.) Whenthe B.P. membersarrived at the block on Lime Avenue where Toro resided, Pipas parked his red Chevy Beretta facing southbound in the middle of the block on the westside of the street. (CT 290-292.) Mr. Camacho exited Mr. Del Rio’s Honda, which was parkedin front of the Beretta. Mr. Camacho proceeded northboundon foot toward Toro’s house on the sidewalk on the east side of the street. (9 RT 1772; 2 CT 292-293.) Mr. Sandoval alighted from the Beretta and wasgetting ready to walk to Toro’s house too. (2 CT 293-294.) However, Mr. Sandoval then saw an unmarkedpolice vehicle to his north about two house lengths away, heading south on Lime Avenue. (2 CT 293-294, 317- 318.) *° Ms. Rodriguez testified that, at the time of Mr. Sandoval’s trial, she was no longer with Toro. He had abusedher physically, and she obtained a restraining order against him. (7 RT 1286.) -23- a 6. Detectives Daryle Black and Richard Delfin Arrive on the Scene Detectives Daryle Black and Richard Delfin of the Long Beach Police Department had been conducting routine gang investigations on the evening of April 29, 2000. (8 RT 1560, 1565.) They were in a plain, unmarked vehicle. (8 RT 1563.) Though the vehicle was unmarked,it was readily identifiable as a police vehicle. (8 RT 1565.) Detective Delfin was driving, and Detective Black wasin the front passenger seat. (8 RT 1566.) After investigating a possible gang fight at approximately 11:00 p.m., they decided to go get some coffee. (8 RT 1560, 1566.) Detective Delfin drove westbound on 20"Street and then turnedleft onto Lime Avenue, heading southbound. (8 RT 1566.) He drove down Lime Avenue, because gangactivity often takes place on that street. (8 RT 1591-1592.) Detective Delfin saw a double-parked vehicle facing south on Lime Avenue “about mid-block” between 20° and 19" Streets. (8 RT 1567.) The detective observed a bald-headed Hispanic male walking near the rear of the double-parked vehicle. The detective made eye contact with the Hispanic male. (8 RT 1567- 1568.) Detective Delfin testified that he “slowed up and... stopped about two car lengths behind” the double-parked vehicle. (8 RT 1567.) -24- Detective Delfin later identified the Hispanic male as Rascal. (8 RT 1591.) Althoughthe detective had previously arrested Rascal several times in connection with gang-related activities (8 RT 1596, 1589), he did not recognize him at the time of the incident. (8 RT 1591.) A man named Jimmy Lee Falconer was driving his vehicle out of a residential driveway on Lime Avenuejust before the shooting. Mr. Falconer saw the detectives slow down, focus their attention on Rascal, and maneuvertheir vehicle toward him. (9 RT 1763-1764, 1767, 1773.) It appeared to Mr. Falconer that the detectives were preparing to “jack” Rascal, i.e., stop him. (9 RT 1764, 1773-1775.)”" 7. The Shooting Detective Delfin testified that as he was getting ready to contact Rascal, someone located to his right/west “started unloading” on the detectives’ vehicle with an assault weapon. Detective Delfin felt a sensation of heat in the vehicle. (8 RT 1570.) Before the shooting had commenced,Detective Delfin’s attention had been focused on Rascal, and he had been unawareofthe presence of anybodyat the location from which the shots were fired. (8 RT 1571.) In the vehicle, 7 Mr. Falconer explainedthat he has “lived in the hood”and frequently witnessed police encounters ofthis type. (9 RT 1773.) -25- windowswere shattering, and debris was flying about. The gunfire was loud and intimidating. Something struck the right side of Detective Delfin’s head. Hefelt immediate, severe pain. He sensed an impairment of his motor skills. (8 RT 1572-1574.) His fingers were numband bloody. A gunshotstruck his right knee, causing excruciating pain. Another gunshot passed across the vest he was wearing but did not strike his body. (8 RT 1574-1575.) Jimmy Lee Falconertestified that while the detectives were “preoccupied with the kid” on oneside ofthe street, they were ‘‘ambush[ed]” by gunfire coming from the other side of the street. (9 RT 1764.) To Mr. Falconer, the “kid,” 1.e., Rascal, appeared to be 13 to 15 years old. (9 RT 1770.) And, it seemed to Mr. Falconer, who is a navy veteran (9 RT 1765), that more than one gun wasbeing fired at the detectives. (9 RT 1764.) Detective Delfin believes Detective Black was mortally wounded right whenthe shooting started, because Detective Black was completely quiet. (8 RT 1573, 1576.) The shooting stopped after Detective Delfin’s knee was struck. (8 RT 1577.) Detective Delfin lowered himself in the driver’s seat and moved his body next to Detective Black. (8 RT 1576.) Detective Delfin was unable to use his right leg, but he usedhisleft leg to press the accelerator. Looking upatstreet -26- lights and telephone wires, he was able to guide the vehicle down the middle of the street. (8 RT 1577-1578.) According to a witness, the detectives’ vehicle appearedto be drifting after the shooting. (9 RT 1766.) A Lime Avenueresident saw the detectives’ vehicle “rolling by” after the shooting, and it appeared that no one wasin the vehicle. (7 RT 1474.) Detective Delfin drove the car a short distance and then putit in park. He grabbedhis radio and placeda call for help. (8 RT 1579.) He thought he was going to die. (8 RT 1577.)” The detectives’ patrol vehicle ultimately cameto rest at the intersection of 19" Street and Lime Avenue, facing southbound. (6 RT 1122-1123, 1264; 7 RT 1507.) Mr. Falconer, who, as noted above, witnessed the shooting,testified that when Mr. Sandovalwasfiring the gunshots,”’ he was standing on the passenger side of a grey or red car that was legally parked against the curb on the westside of the street. Mr. Sandoval fired the shots over that parked car. The detectives’ *8 During Detective Delfin’s testimony, 25 police officers were in the courtroom. Theofficers were not in uniform. (8 RT 1580.) 9 Mr. Falconertestified in court that Mr. Sandoval does not look like the shooter he saw. (9 RT 1765.) However, Mr. Falconertestified that the picture of Mr. Sandoval in People’s Exhibit 8 does resemble the shooter. (9 RT 1765-1766.) In pretrial photographic line-ups, Mr. Falconer was unable to identify Mr. Sandoval as the shooter. (9 RT 1777-1779.) -27- a e o w vehicle was approximately ten feet away from Mr. Sandoval whenthe shooting began. Two males were standing next to Mr. Sandoval. (9 RT 1775-1777.) 8. Maria Cervantes At approximately 11:00 p.m. on April 29, 2000, Maria Cervantes, who was pregnant, was asleep in her home at 1960 Lime Avenue. (7 RT 1531.)° She and her husband, Alberto Cervantes, were on their bed. (7 RT 1525, 1534.) She was awakened byloud noises and the sensation of a blow to her leg. She realized she had beenshot and called out to her husband. (7 RT 1533.) Mr. Cervantes got up and looked aroundto try to find out what was happening. Helifted the bed sheets and saw that Ms. Cervantes was bleeding. He then went to the phone and called for emergencyassistance. (7 RT 1534.) 9. B.P. Members Flee After the shooting, Toro’s erstwhile common-law wife, Desirée Rodriguez, saw the red Chevy Berreta back up quickly onto the curb. (7 RT 1281-1283.) Pipas and Mr. Sandoval were in the vehicle. Pipas was driving. They pulled out fast and drove away, heading northbound on Lime Avenue toward 19" Street. (7 RT 1281-1283; 2 CT 300-301.) One neighborhoodresident saw “burning tires” °° The Cervantes homewaslocated immediately to the south of Toro’s residence. (6 RT 1136.) -28- out on thestreet right after the shooting. (7 RT 1466.) Mr. Falconer, who was trying to get out of the area after the shooting, nearly collided with the fleeing red car. (9 RT 1766.) Messrs. Bojorquez and Del Rio got out of the area in the Honda, driving southbound on Lime Avenue. (2 CT 302.) Rascal did not makeit into either of the fleeing vehicles. Shortly after the shooting, a resident in a ground-level apartment at 1983 Lime Avenue stepped outside to see what was going on. (7 RT 1363-1364.) She saw a personshewaslater able to identify as Rascal. Rascal asked if he could use her telephone. She refused and stepped back inside her apartment. (7 RT 1365, 1367-1369.) 10. Rapid Police Response At approximately 11:08 p.m., a police-dispatcher fielded an emergency radio transmission from Detective Delfin. (6 RT 1113, 1115; 6 CT 1591-1593; People’s Exhibits | and 1-A.) Detective Delfin indicated that he and Detective Black had been shot and neededassistance. (6 RT 1115; 6 CT 1591-1592; People’s Exhibits 1 and 1-A.) Detective Delfin is usually “very even-keel[ed].” However,to the dispatcher, the detective seemed quite disoriented. The dispatcher requested all available officers to respond and provide assistanceto the detectives. She also dispatched the Long Beach Police Department helicopter to the scene. (6 -29- od RT 1115-1116; 6 CT 1591-1593; People’s Exhibits I and I-A.) Oneofthe residents of the 1900 block of Lime Avenuetestified that “immediately after the gun shots, there were sirens and police cars coming around all the corners.” (7 RT 1364.) Another neighborhoodresident, who made a 911 call after the shooting,testified that police began arriving on scene less than one minute after she made the call. (7 RT 1474-1475.) Yet another neighborhood resident testified that when she wentoutside after the shooting, the scene was chaotic, with neighbors milling about and numerous police officers on the scene on foot and in police vehicles. (7 RT 1456-1457.) Theofficers whoinitially arrived on scene observedthat a white vehicle wasin the intersection of 19" Street and Lime Avenuelocated near the vehicle in which Detectives Black and Delfin were seated. The white vehicle was facing the detectives’ vehicle. Officers drew their weapons on the occupants of the white vehicle, but, after making contact with the occupants of that vehicle, determined they had not been involved in the shooting. (7 RT 1518.) The officers then turned their attention to the vehicle Detectives Black and Delfin were in. It was badly damaged. Asthey ran to the vehicle, they saw bullet holes in the windshield and noticed that the passenger side front window had been completely shot out. (7 RT 1507.) The engine was running andthe vehicle lights ~30- were on. Detective Black was slumped overto his right, his head wastilted back, and he was covered with blood. Detective Delfin was in shock. He was holding the steering wheel, with a dazed look on his face. Blood wasvisible in the area of his right temple. (7 RT 1508-1509, 1519-1520.) Officers removed Detective Black from the vehicle. (7 RT 1509-1510.) An observernoticed that as the officers were carrying Detective Black, his head hung back and wasnot moving. (7 RT 1483.) Officers observed a large bullet hole in Detective Black’s scalp. He had limited vital signs and was not responsive. (7 RT 1510, 1519.) One officer believed Detective Black was already dead. (7 RT 1520.) It was difficult for officers to get Detective Delfin to remove his hands from the steering wheel. (7 RT 1520.) Serious damageto his right knee was evident. Officers had to exert a great deal of effort to remove Detective Delfin from the vehicle, and the detective cried out in pain as his fellow officers essentially pried him out of the vehicle. (7 RT 1521; 8 RT 1583.) After officers arrived on the scene, Alberto Cervantes, who was coveredin blood, made contact out on the street with Felipa Guerrero of the Long Beach Police Department. In a panic, Mr. Cervantes told Officer Guerrero that his wife, Maria Cervantes, had been shot. He grabbedthe officer by the arm, and she went -31- re d with him into his house. (7 RT 1524.) Ms. Cervantes wasin her bed, covered in blood. She wasbleeding from her abdomenand legs. Officer Guerrero, who had previously been a nurse, applied pressure to Ms. Cervantes’ wounds. (7 RT 1525.) Officer Guerrero radioed for help, but paramedics and officers were unable to respond for approximately one hour, because of police safety concerns regarding possible armed suspects in the area. (7 RT 1526.) Police set up a large perimeter. (6 RT 1123.) SWATofficers began searching for suspects. (6 RT 1122.) Police set up a commandpostat a location on Pacific Coast Highway two blocks away from the scene of the shooting. (6 RT 1121.) Il. Rascal’s Arrest Approximately 20 minutes after the shooting, residents of 2051 Lime Avenue called police to report observing a Hispanic male with a handgunhiding in their backyard. (6 RT 1124.) At approximately 2:00 a.m., Rascal wasarrested in the backyard at 2051 Lime Avenue. (6 RT 1124-1125, 1234-1235, 1268; 1 CT 110.) At the time ofhis arrest, Rascal was wearing only one shoe. (10 RT 1958.)"! 3! Police found his other shoe nearby. (10 RT 1956-1958; People’s Exhibit 71.) -32- After Rascal’s arrest, officers found a semi-automatic .45 caliber handgun located at the base of a fence at 1985 Lime Avenue. That was the gun that had been in Rascal’s possessionat the time of the shooting. (6 RT 1267.) 12. Mr. Sandoval’s Post-Homicide Activities After the shooting, Mr. Sandovaland his cohorts went to the abandoned house nearthe B.P. “Hang out”at the alleyway off Atlantic Avenue in Compton. The B.P. members put someoftheir guns in the abandoned house. (2 CT 302.) . Then, Mr. Sandoval, Mr. Del Rio, and Pipas went to Mr. Del Rio’s home, where they spent the night. (2 CT 303.) The following day, April 30, 2000, Mr. Sandoval watched a Lakers basketball game ontelevision. (10 RT 1968; 2 CT 303.) That evening, Mr. Sandoval spent time at the B.P. hang out with fellow gang members. He wasquiet and kept to himself. (7 RT 1357-1358.) At somepoint, Mr. Sandoval burnedall ofthe articles of clothing he had worn during the shooting, with the exception of his shoes. (10 RT 1968.) 13. Rascal’s Cooperation with Police After Rascal’s arrest, he assisted officers in their effort to locate Mr. Sandoval. (8 RT 1599.) /// -33- a d At approximately 2:00 a.m. on May 2, 2000, Rascal made a telephonecall to Mr. Sandovalat the behest of a Long Beach detective. Rascal was in custody. The detective had Rascal makethecall from the detective’s department-issued cellular telephone. (8 RT 1599-1600, 1610, 1616-1617.) Rascal made contact with Mr. Sandoval on Mr. Sandoval’s residential phone line. Their conversation wasrecorded. (8 RT 1610; 2 Ct 323-328; People’s Exhibits 41 and 41-A.) Most of their conversation was in English. (8 RT 1615; 2 CT 323-328; People’s Exhibits 41 and 41-A.)” Thedetective directed Rascal to discuss the shooting with Mr. Sandoval. (8 RT 1618.) During the conversation, Rascal stated that he had thrown his gun to the groundafter the shooting. (2 CT 325.) He said police had contacted him at around 4:00 a.m., but let him go, because even though he had been onparole,his parole was discharged. (2 CT 325-326.) Rascal asked Mr. Sandovalif a police officer had been killed. Mr. Sandoval answered,“Yeah[,] fuck ’em.” (2 CT 327.) Rascal asked if one or two police officers had been killed. Mr. Sandoval said only one had been killed. (2 CT 327.) They agreed to meet later at Mr. Sandoval’s home. (2 CT 327-328.) * The telephone conversation was played for the jury. (8 RT 1611-1612.) Portions of the conversation conducted in Spanish weretranslated by a bilingual officer. (8 RT 1623-1628.) -34- Based on this conversation, police were able to determine Mr. Sandoval’s location in order to arrest him. (8 RT 1613.) 14. Mr. Sandoval’s Arrest and the Seizure ofthe Murder Weapon On the morning ofMay 2, 2000, Long Beach detectives and SWATofficers executed a search warrant at Mr. Sandoval’s home in Compton. During the course of the execution of the search warrant, officers placed Mr. Sandoval underarrest. (8 RT 1630-1632; 9 RT 1855; 2 CT 269.)* Hidden behinda stovein the kitchen, police found the CAR-15 Mr. Sandoval had used on April 29, 2000. The gun was covered with a towel. A magazine containing 11 rounds wasin the gun. (8 RT 1636-1638.) The gun was covered with an oily lubricant that prevented police from being abletolift fingerprints off the gun. (8 RT 1648, 1691.) Also located at Mr. Sandoval’s residence wasthe red Chevy Berreta in which Mr. Sandoval had traveled to Lime Avenue on April 29, 2000. (8 RT 1636.) Police found the keys to that vehicle inside the residence. (8 RT 1639.) Police lifted latent fingerprints off of the Chevy Beretta, and those fingerprints were later determined to have been left by Mr. Del Rio and Pipas. (10 RT 1954.) 3 At the time of Mr. Sandoval’s arrest, Mr. Sandoval’s father and his father’s girlfriend were present at the residence. (8 RT 1654-1655.) -35- 15. Mr. Sandoval’s Confession Following his arrest on May 2, 2000, Mr. Sandoval began speaking with detectives at approximately 8:45 to 9:00 a.m. (10 RT 1945, 1960; 2 CT 268-269.) Bythat time, Mr. Sandoval had beenin custody for approximately two and one- halfhours. (10 RT 1945.) For two hours and forty minutes, the detectives conducted an un-recorded interview of Mr. Sandoval. Then, the detectives conducted a recorded interview of Mr. Sandoval, in which he confessed to shooting Detectives Black and Delfin. (10 RT 1967-1969, 1972; 2 CT 268-322, 439-481; Supp. V CT 37-92; People’s Exhibits 73 and 73-A.)™ When Mr. Sandovalfirst spoke with detectives, he falsely stated that he had been at a friend’s home whenthe shooting occurred. (2 CT 271.) He also gave the detectives another false accountbeforestating, “I want to come clean.” (10 RT 1964-1967.) Thereupon, Mr. Sandoval imparted the following information to the detectives: Subsequentto the afternoon meeting at Lazy’s home, approximately 15 B.P. members, including Mr. Sandoval, met in the alleyway near the abandoned house ** In the penalty phaseretrial, a partially redacted version ofthe transcript of the recorded interview was admitted in evidence as People’s Exhibit 76-A. (21 RT 4286-4287; 6 CT 1648; Supp. V CT 37.) -36- at San Vincente and Atlantic. (2 CT 276-277, 283.) While they were hanging out and drinking at that location, E.S.P. gang members drove by, shouted out profanities, and shot at the B.P. gang members. (2 CT 276, 278.) B.P. members pursued their E.S.P. assailants, but were unable to catch them. (2 CT 278.) B.P. decided to get “pay back.” (2 CT280.) Specifically, B.P. decided to go after Toro, the E.S.P. shot-caller. Mr. Sandoval knew Toro from prior contacts. (2 CT 287.) Five B.P. members — Mr.Sandoval, Mr. Bojorquez, Rascal, Pipas, and Sparky — plannedto shoot and kill Toro. They plannedto go to his home, knock on the door, and shoot him. (2 CT 281-282, 288-289.) The five B.P. members went back to Lazy’s home. Mr. Sandoval and Pipas drove there in a red Beretta. Sparky, Rascal, and Mr. Bojorquez drovethere in Sparky’s grey Honda. On the way, they stopped at Sparky’s hometoretrieve the CAR-15, which wasfully automatic. (2 CT 282-286, 306, 308-309.) They obtained additional guns at Lazy’s home: Mr. Bojorquez had a .45-caliber Gold Cup; Rascal had a Colt .45 pistol; Pipas had a .38-caliber revolver; and Sparky had a .38 Super. (2 CT 283-286.) Mr. Sandoval loaded the CAR-15. (2 CT 305.) They spent approximately 30 minutes at Lazy’s home. (2 CT 286.) Then, the five B.P. members headed over to Toro’s home on Lime Avenue in the Beretta and the Honda. (2 CT 281-282.) Following behind the Honda, -37- Pipas drove south on Lime Avenuepast 20" Street. He stopped and parked about half-way downthe block on the west side of the street. (CT 290-292.) Rascal exited the Honda and proceeded northbound on foot toward Toro’s house on the sidewalk on the east side of the street. (2 CT 292-293.) Mr. Sandoval exited the Beretta and was planning to walk over to Toro’s house. (2 CT 293-294.) However, Mr. Sandoval then saw an unmarked police vehicle to his north about two house lengths away, heading south on Lime Avenue. (2 CT 293-294, 317- 318.) Mr. Sandoval wasabletotell it was a police vehicle when he saw it up close. (2 CT 317.) Mr. Sandoval ducked down behindthe passengerside of the Beretta. (2 CT 295-297.) Pipas, who had opened the driver’s side door and was getting ready to get out of the Beretta, stayed in the vehicle and shut the door as the police vehicle approached. (2 CT 293-294.) Mr. Sandoval saw the police focusing their attention on Rascal. Rascal was on parole. If the police made contact with him, they would have taken him to jail. In an effort to “save” Rascal, Mr. Sandoval stood up and openedfire on the police vehicle. He estimated that he fired 15 shots. (2 CT 295-297.) The police vehicle was approximately ten feet away from Mr. Sandovalas hefired the shots. (2 CT 297.) Mr. Sandoval saw the gunfire striking the police officers and breaking the car windows. (2 CT 299- 300.) Mr. Sandoval knew the occupants of the vehicle were police officers before -38- he opened fire. (2 CT 319.) The police vehicle continued driving slowly down Lime Avenuepast Mr. Sandoval’s location. (2 CT 300.) After the shooting, Mr. Sandoval got back in the Beretta. Pipas backed up, madea U-turn, and drove off northbound on Lime Avenue. (2 CT 300-301.) Mr. Sandoval saw the Honda leaving southbound on Lime Avenue. (2 CT 302.) As they were leaving, Mr. Sandovaldid not see anybody else on Lime Avenue. (2 CT 316.) At the conclusion of the tape-recorded statement/confession, Mr. Sandoval acknowledgedthat the interviewing detectives had not made any promises of leniency to induce him to speak with them. (2 CT 322.) 16. Mr. Sandoval’s Knowledge ofB.P.’s Pattern of Criminality Mr. Sandovalstipulated that he knew his fellow B.P. gang members had engagedin a pattern of criminal gang activity. (9 RT 1846-1853.)*° 17. Firearm and Ballistics Evidence According to the prosecution’s firearm expert, the CAR-15 Mr. Sandoval used in this case only fires in semi-automatic mode (8 RT 1693), and each round discharged from the gun requires a separate trigger pull. (8 RT 1660.) However, * The stipulation fulfilled the prosecution’s proof requirements with respect to one of the elements of the gang related special circumstance allegation brought pursuant to Penal Code section 190.2, subdivision (a)(22). -39- in Mr. Sandoval’s tape-recorded confession, a redacted version of which was played for the jury (10 RT 1968), he told the detectives who interviewed him that the gunis fully automatic. (2 CT 306.)** In any event, the gun hasthe capacity to fire many rounds“in a very short period of time.” (8 RT 1694.) Bullets fired out of the gun travel at a high velocity — approximately three times faster than bullets fired out of standard-issue police guns. Thus,bullets fired out of the CAR-15 can cause great damage. (8 RT 1665.) After the shooting, police recovered 28 .223 caliber Remington shell casings on Lime Avenue. Twenty-four of the shell casings were grouped together in front of the residence at 1951 Lime Avenue,and the remaining four casings were grouped together approximately 40-50 feet down the road in front of the residence at 1968 Lime Avenue. (6 RT 1126-1127, 1265; 7 RT 1432-1437; 8 RT 1666, 1669-1670.) Ballistics testing established that each of the 28 casings was discharged from the CAR-15. (8 RT 1696.) The prosecution’s firearm expert, who participated in “processing”the crime scene (8 RT 1658-1659), concluded that all 28 shots were fired from the same location. Hefelt the four shell casings located 40-50 feet away from the *° Mr. Sandoval told the detectives he had fired the gun prior to incident in this case. (2 CT 306.) -4(- other 24 may have been moved bya get-awayvehicle fleeing the scene. (8 RT 1669-1671.) Skid marks werevisible near those four shell casings. (7 RT 1437- 1438.) Investigators observed 20 bullet holes in the detectives’ vehicle, including seven bullet strikes to the windshield andfive bullet strikes to the passenger side of the vehicle. One bullet went through both the passenger’s side and driver’s side head rests. (8 RT 1674-1675.) Eight bullet fragments were recovered inside the detectives’ vehicle. (8 RT 1674.) Bullet trajectory analysis revealed that the detectives’ vehicle was in motion as Mr. Sandvoal fired on the vehicle, and that Mr. Sandoval wasbasically perpendicularto the vehicle as he fired the shots. The trajectories ofall the shots but one werefrom therearto the front of the vehicle, and that one had a slightly front-to-rear trajectory. (8 RT 1685-1687.) There were no bullet strikes to the rear of the vehicle. (6 RT 1688.) The “compact” grouping of the 24 shell casings indicates that Mr. Sandoval wasstationary as hefired the shots. (8 RT 1686.) In a test conducted with a weapon with “the same mechanical features”as the CAR-15 involvedin this case, the prosecution’s firearm expert wasable to fire 28 rounds in under seven second. (8 RT 1694-1695, 1701; 20 RT 4263.) /// -4]- 18. The Autopsy ofDetective Black An autopsy revealed that Detective Black’s cause of death wasa single gunshot woundto the head. (8 RT 1725, 1732.) Gunshotprojectile material was observed in the detective’s right forearm, right hand, right thigh, and the right side of his chest. (8 RT 1718.) The only lethal injury was the gunshot woundto the head. (8 RT 1719-1729, 1732.) 19. The Injuries Suffered by the Surviving Victims Maria Cervantes and Detective Delfin both suffered serious injuries from the shooting. a. Maria Cervantes The bullet that struck Ms. Cervantes entered her right shin, exited hercalf, re-entered her right leg at the back of her thigh, re-exited the front of her thigh, and then re-entered the abdominalarea of her body locatedjust aboveherpelvis. (7 RT 1536-1537; 8 RT 1739-1743.) As noted above, Ms. Cervantes was pregnant at the time ofthis incident. (7 RT 1525; 8 RT 1739.)*’ The bullet came torestin Ms. Cervantes’ abdomenjust a couple inches from the head ofthe fetus in her *7 Jn the originaltrial, one of the physicians whotreated Ms. Cervantes testified that she was near full-term at the time of the incident. (7 RT 1739.) In the penalty phaseretrial, that doctortestified she was seven monthsalong in her pregnancy. (19 RT 3906, 3912.) -42- uterus. (8 RT 1741-1742.) Attending physiciansleft the bullet inside Ms. Cervantes. (7 RT 1538.) Her baby was eventually delivered via cesarean section. (7 RT 1538.) Her babyis healthy. (7 RT 1539.) Ms. Cervantes has a small scar underher navel causedbythe bullet that struck her. (7 RT 1537.) b. Detective Delfin Detective Delfin suffered multiple gunshot injuries. During the shooting, bullet fragments, glass, and debris struck his head and hands. He has a scar and indentation on the right side of his head, between his eyebrow and temple. (8 RT 1572-1574.) His fingers were struck, and as of the date ofhis trial testimony, he was experiencing numbnessin oneofhis fingers. (8 RT 1575.) The detective suffered an extremely serious injury to his right knee. A bullet entered his right leg about four-to-five inches below the knee, then traveled upward. It fractured histibia inseveral places and fractured his femur inone place. (7 RT 1495.) According to an orthopedic surgeon who treated Detective Delfin, the bullet “destroyed” his knee. (7 RT 1495.) Detective Delfin was hospitalized for 19 days after the shooting. During that period of hospitalization, one surgical procedure was performed on his knee. (8 RT 1583-1584.) Originally, an external fixator was placed on his knee. (7 RT 1493; 8 RT 1584-1585.) He had to “wear”the fixator for nine months. (8 RT -43- 1585.) However,a serious infection developed, penetrating into the bones of the detective’s leg. (7 RT 1493-1494.) The detective had to undergo additional surgical procedures. (8 RT 1589.) At one point, one of the treating physiciansfelt the best option was to amputate the detective’s leg. (7 RT 1494.) However, the detective’s orthopedic surgeon, along with a plastic surgeon, replaced the detective’s knee joint with an artificial knee joint. (7 RT 1494-1495.) Inall, Detective Delfin underwent 10 surgical procedures on his knee. (7 RT 1499-1500; 8 RT 1589.) Detective Delfin is not able to walk normally. The damage doneto his leg caused permanent weakening ofhis quadriceps muscle. He is unable to completely straighten his leg. (7 RT 1500.) Dueto his injuries, Detective Delfin was unable to return to work in the gang unit. He had to assumea deskjobin the police station. (8 RT 1596.) 20. Search ofLazy’s Home Police searched Lazy’s residence approximately one weekafter the shooting. (6 RT 1228-1229, 1253.) The police seized various items from the home,including photographs of gang members. (6 RT 1229.) /// /// -44. 21. Belated Discovery ofRascal’s Notes Asnoted above, before the B.P. meeting that took place at Lazy’s home during the afternoon on April 29, 2000, Rascal had written out some gang-related notes. (7 RT 1398-1399; 9 RT 1888-1889; People’s Exhibit 26.) Shortly after the shooting, Lazy gave Mr. Bojorquez’sgirlfriend, Lucinda Lara, a folder containing Rascal’s notes. (7 RT 1302-1303, 1350-1356.) Approximately one weekafter the shooting, Ms. Lara gave Rascal’s notes to her step-sister, Kristen Trochez. (7 RT 1303, 1354, 1385-1386, 1391-1392.) Ms. Lara asked Ms. Trochez to hide the notes. (7 RT 1385-1386.) Ms. Trochez kept the notes for one and one-half years, until November 17, 2001, at which time she provided them to a detective who was questioning her about the case. (7 RT 1393-1394.) B. Original Penalty Phase From opening statements through closing arguments andfinal instructions to the jury, the original penalty phase lasted five court days. (5 CT 1292-1295, 1298-1299, 1301-1302, 1305, 1344.) Then, the jury deliberated over the course of five more court days before declaring itself deadlocked. (5 CT 1307-1311, 1344.) Whereupon,the trial court declared a mistrial. (5 CT 1344.) /// /// -45- 1. The Prosecution’s Case Theprosecution’s penalty phase case-in-chief consisted of three categories of evidence: First, the prosecution presented evidence of Mr. Sandoval’s involvement in a gang-related shooting and homicide that occurred approximately six monthsbefore the fatal shooting on Lime Avenue. Second, the prosecution presented evidence regarding Daryle Black’s background and character. This evidence consisted of testimony from the detective’s friends, family members, and professional colleagues. Someofthese individuals also testified about the impact on them ofthe loss of Daryle Black. Third, the prosecution presented evidence regarding the impact on Rick Delfin and his family of the injuries he suffered in the shooting on Lime Avenue. a. The Murder ofJesus Cervantez Jesus Cervantez was a memberofJust Kicking It (J.K.I.), an emerging criminal street gang. (11 RT 2135, 2145, 2187, 2196, 2200.) Early in the evening on October 10, 1999, Mr. Cervantez and a fellow J.K.I. member, Steve Romero, were outside a McDonald’s restaurant in Lynwood. Mr. Sandoval and Rascal drove to a point near the spot where Messrs. Cervantez and Romero werelocated outside the McDonald’s restaurant. (11 RT 2103, 2109-2110, 2139-2143, 2178- /// -46- 2179, 2194-2195.)** Rascal, who was armed with an AR-15 or someother type of assault rifle, stepped out of the vehicle and fatally shot Mr. Cervantez. (11 RT 2109-2115, 2130, 2155-2163, 2173-2174.) Rascal then chased and shot Mr. Romero, causing a superficial wound to Mr. Romero’s head. (11 RT 2103, 2110, 2173.) Shortly before this shooting at McDonald’s, J.K.I. members had driven by the B.P. hangoutin the alleyway off Atlantic Avenue in Compton and hadfired gunshots at B.P. members, including Mr. Sandoval. (11 RT 2102, 2177-2178.) The shooting at McDonald’s wascarried outin retaliation for this J.K.I. drive-by shooting. (11 RT 2102, 2177-2178.) Mr. Sandoval confessed his involvementin the shooting at McDonald’s. However, he declined to acknowledge Rascal’s involvement in the shooting. In this connection,he told the officers to whom he confessed that he was only willing to discusshis activities, not the activities of his fellow gang members. (11 RT 2175-2177; 2 CT 480-481; Supp. V CT 91.) 8 Mr. Sandoval and Rascal werein a vehicle Mr. Sandoval had previously stolen. (11 RT 2102-2103, 2148, 2177-2178.) * Before Mr. Sandoval confessed to his involvement in the shooting at McDonald’s, police had been unaware he had played anyrole in that incident. (11 RT 2184.) -47- wi e b. Daryle Black Daryle Black grew up in Michigan. (11 RT 2204, 2212, 2294, 2300.) He was the youngestoffive siblings. (11 RT 2286.) He joined the Cub Scouts and was involved in youth sports leagues. (11 RT 2286-2287.) After high school, he enlisted in the Marine Corps. (11 RT 2204, 2210.) While in the Marine Corps, he was respectful, compassionate and viewed by others as a man wholed by quiet example. (11 RT 2205-2207, 2216.) He took pride in being a Marine, and was very committed to the military. (11 RT 2241- 2242, 2303, 2306-2307.) He was the best man in the wedding of one ofhis fellow Marines. (11 RT 2218.) After leaving the Marine Corps, Daryle Black became a deputy sheriff in the Orange County Sheriff's Department. He was well-liked and very devotedto his job. (11 RT 2214-2217.) Hetransferred to the Long Beach Police Department in 1993. (11 RT 2278.) Daryle Black was a large, muscular man. He weighed over 300 pounds. (11 RT 2276.) He liked to have steak and eggs for breakfast. (11 RT 2280.) Despite his intimidating size, he was always polite and put people at ease. He even managed to conduct himself in a relatively gentle and respectful manner when subduing unruly arrestees. (11 RT 2222-2225, 2277, 2280.) As a gang detective, -48- he was very interested in gang culture, and he wasa student of gang history. (11 RT 2283, 2307.) Atthe time of his death, Daryle Black was 33 years old. (11 RT 2286.) His death has been very hard on his family. (11 RT 2292, 2295, 2298, 2305-2306, 2310, 2312-2313.) His sister, Karen Black, had considered him herbest friend, as well as her brother. She underwent two years of counseling in the wakeofhis death. (11 RT 2298.) His family members miss him and the lengthy phonecalls he madeto them back in Michigan,particularly the phone calls he made on holidays. (11 RT 2306.) Over 6,000 police officers and members ofthe military attended the memorial service for Daryle Black in Long Beach. He was honored with a 21-gun salute. During the memorialservice, police officers formed a procession that appeared to be “a couple miles long.” The ceremony was very moving. (11 RT 2247-2249, 2291, 2311; People’s Exhibits 85, 86, 91, and 92.) The Mayor of Long Beach spokeat the memorialservice. (11 RT 2311-2312.) According to the Deputy Chief of the Long Beach Police Department, the murder of Detective Black had a devastating impact on the morale of the gang unit *© During the original trial, testimony was simply given that “the mayor” spoke at the memorial. (11 RT 2311.) At the retrial, testimony was given that the MayorofLong Beach spokeat the memorial. (21 RT 4369.) -49- to which he had belonged. The gang unit “started to turn onitself.” (11 RT 2239.) Membersofthe unit “lost it” and were unable to exhibit the leadership qualities expected of them. (11 RT 2237-2239.) The deputy chiefmade arrangementsto have membersofthe gang unit undergo counseling and for them to receive time _off of work. However, as of the timeofthetrial, the unit had not “healed.” (11 RT 2236-2238, 2239.) After the memorial service in Long Beach, Daryle Black’s family held his funeral service and buried him in Grand Rapids, Michigan. (11 RT 2291, 2295, 2312-2313.) Cc. Richard Delfin Before the shooting, Rick Delfin was active and athletic. (11 RT 2254.) He coachedlittle league baseball and liked to hike. (11 RT 2255-2256.) Shortly after the shooting, it was uncertain whether Rick Delfin was going to survive. Whenhis wife first saw him in the hospital, he was covered with blood. (11 RT 2258-2259.) Rick Delfin and his wife have children. The children miss being able to participate in athletic activities with their father, and they have been otherwise traumatized by the harshness of what happenedto their father. (11 RT 2262- 2263.) -50- Since the shooting, things have been challenging for the Delfin family. Due to his injuries,it is difficult for Rick Delfin to do someofthe simpler day-to-day activities. (11 RT 2259-2261.) In March of 2001, Rick Delfin received a Medal of Valor and a Purple Heart. (11 RT 2260; People’s Exhibit 88.) 2. The Defense Case The defense presented three categories of penalty phase evidence and unsuccessfully attempted to present a fourth category of such evidence. First, the defense presented testimony regarding Mr. Sandoval’s backgroundand family history. Second, the defense adduced evidence regarding the circumstances under which he becameinvolved with the B.P. gang and his family’s struggles to keep him away from the gang. Third, the defense presented evidence regarding Mr. Sandoval’s remorse and acceptance of responsibility for his crimes. Fourth, the defense attempted to present evidencethat a sentenceoflife in prison without the possibility of parole would haveresulted in conditions of confinementin prison for Mr. Sandoval that would have prevented him from posing anyrisk of future dangerousness. However, after a hearing conducted pursuant to Evidence Code section 402, the trial court imposed limits on the evidence it would allow the defense to adduce concerningthis subject, and the defense ultimately did not -51- present any such evidence. a. Background and Family Mr. Sandoval was born in the United States. (12 RT 2505.) On the day he shot and killed Detective Black, he was 18 years old. (12 RT 2353, 2364-2365; 13 RT 2618-2619, 2666, 2669.)*' Mr. Sandoval’s parents are from Mexico, and some membersofhis extended family live in Mexico. (12 RT 2383-2385, 2395, 2504.) His mother was 16 years old when she married his father. (12 RT 2505.) When Mr. Sandoval was a very small child, he and his family moved to Mexico, and Mr. Sandoval attended the first grade there. (12 RT 2384, 2505.) Then, he returned to the United States with his immediate family and went to elementary school in Compton. (12 RT 2505.) His family moved around quitea bit, living at various locations in Compton and Paramount. (12 RT 2364-2365, 2505-2506.) As a young child, Mr. Sandoval was calm, quiet, and well-behaved. (12 RT 2364, 2368, 2481-2482, 2508, 2535.) He wasrespectful to his mother and helped her with chores around the house. (12 RT 2535.) With his father’s “| He wasborn on August 8, 1981. (2 RT 1; 20 RT 4148.) Although defense counsel noted in an opening statement given at the beginning of the penalty phase that Mr. Sandoval was born in 1981 (12 RT 2353), no evidence regardinghis precise date of birth was presented to the jury in the originaltrial. -52- encouragement, he became a very good soccerplayer. He excelled at the goalie position. He is a good athlete. (12 RT 2374-2375, 2449, 2453-2454, 2508; Defense ExhibitJ.) WhenMr. Sandoval was approximately nine years old, his family moved into a two-room house located between Compton and Lynwood. A total of eleven people lived in the house, including Mr. Sandoval, his youngerbrother, his older sister, his parents, his aunt, and his aunt’s children. (12 RT 2478-2479.) The Sandovalfamily struggled to get by. They could only afford to live in homesin downtrodden,gang-infiltrated areas. They were short on money. (12 RT 2392, 2449, 2540-2541.) Nevertheless, Mr. Sandoval’s parents did what they could to provide for Mr. Sandoval andhis siblings. His mother always worked long hours as a seamstress. Andhis father also provided for the family, although he wasoccasionally out of work. (12 RT 2371-2372, 2377-2378, 2380, 2507.) Mr. Sandoval’s parents taught him andhissiblings right from wrong. (12 RT 2372-2373.) Together, the Sandoval family celebrated birthdays and holidays. (12 RT 2373.) They occasionally visited family members in Mexico. (12 RT 2374.) As Mr. Sandovalgrewa little older, he and his younger brother, Avel, were in school together. Mr. Sandoval looked out for his younger brother. (12 RT -53- 2446-2447.) He prepared meals for his youngersister. (12 RT 2476.) During Mr. Sandoval’s early teenage years, his parents began fighting. His father began seeing other womenanddrinking quite a bit. (12 RT 2366, 2386, 2392, 2480-2481, 2527-2528.) When Mr. Sandoval was 14 years old, his sister, Nancy, who was 16, left home, and Mr. Sandoval’s parents separated. (12 RT 2366-2368.) At that time, the Sandoval family wasliving in an apartment on Atlantic Avenue and San Vincente Street in Compton,in the heart of gang territory controlled by B.P. (12 RT 2447-2448, 2508.)*? One of Mr. Sandoval’s aunts testified she was afraid to park her car in the area in which that apartment waslocated. (12 RT 2392.) After his parents separated, some of the Sandoval children stayed with Mr. Sandoval’s mother, and some stayed with Mr. Sandoval’s father. Mr. Sandoval lived with both of his parentsat different times. (12 RT 2451-2452, 2485, 2490- 2491, 2528.)” ” Asdiscussed above, the B.P. hang out wasalso located in this vicinity, in an alleyway immediately off of Atlantic Avenue. (2 CT 276-277.) The general vicinity is depicted in a mapthe prosecution introduced into evidencein the guilt phase. (9 RT 1857-1858; People’s Exhibit 65.) ” The foregoing family history evidence was presented by the testimony of Mr. Sandoval’s sisters, Nancy and Areli Sandoval (12 RT 2362, 2475), his brother, Avel Sandoval (12 RT 2484), his aunts, Reynalda Macias and Maria Ramirez (12 RT 2390, 2477), his cousin, Alonso Sandoval (12 RT 2444), his -54- b. Gang Involvement Shortly after the Sandoval family movedinto the apartment in gang territory, Mr. Sandoval becameinvolved with the B.P. gang. (12 RT 2448.) He began spending time with gang members, and he began wearing baggy, gang clothes. (12 RT 2397, 2448.) He got gang tattoos. (12 RT 2490.) He stopped attending school regularly. (12 RT 2537.) His parents tried to get him away from the gang. (12 RT 2370, 2375-2376, 2385-2386, 2448-2449, 2489, 2537-2539.) His father frequently told him to stay away from the gang. (12 RT 2375-2376, 2448-2449.) His father yelled at him about wearing gangster clothing and spending time with gangster friends. (12 RT 2490.) His mother threw awayhis gang clothes on one occasion. (12 RT 2375.) According to Mr. Sandoval’s mother, Mr. Sandoval’s father did not help very much when Mr. Sandoval had problems. (12 RT 2540.) In an effort to keep Mr. Sandoval away from the gang,his parents sent him to live with family members in Mexico. (12 RT 2370, 2376, 2450-2451.) He stayed there willingly, with his grandmother, for approximately six-to-nine months, (12 RT 2376, 2384, 2386, 2537-2538, 2541.) He was respectful, caring, paternal grandmother, Maria Mendoza Sandoval(12 RT 2383), and his mother, Alma Sandoval. (12 RT 2504.) -55- and loving to his family members in Mexico. (12 RT 2384-2385, 2393, 2395.) However, when hereturned to the Los Angelesarea, after promising his parents to leave the gang lifestyle behind, he soon began spending time with the gang members again. (12 RT 2377, 2388, 2450-2451, 2531, 2538.) After he had fallen back in with the gang, his parents once againtried to break him free of the clutches of the gang, and sent him to stay with his uncle in Chowchilla. (12 RT 2377, 2427-2428, 2432, 2455, 2532.) His uncle ownsa dairy farm, and Mr. Sandoval worked on the dairy farm. (12 RT 2430, 2532.) He played soccerand stayed out of trouble while he was in Chowchilla. (12 RT 2430- 2431.) His uncle has two children who were quite young when Mr. Sandoval stayed with them. His uncle testified that he will always rememberwith fondness how Mr. Sandovalplayed with his young children. (12 RT 2431-2432.) Mr. Sandoval was 16 or 17 years old when he was in Chowchilla. (12 RT 2431.) However, when Mr. Sandovalleft Chowchilla and returned to the Los Angeles area, he once again began spending time with fellow gang members. (12 RT 2377, 2455, 2539-2540.) In 1999, Mr. Sandvoal wasshot and hospitalized. (12 RT 2534.) A Jesuit priest who runs an organization dedicated to offering alternatives and second chances to gang membersin the Los Angelesarea testified that gangs -56- exist predominantly in poor and distressed neighborhoods. (12 RT 2458-2459, 2466.) Young kids often join gangs out of despair. Such despair is typically brought on by poverty anddifficult family circumstances. (12 RT 2461-2463.) On the one hand, the young kids who join gangs do so without realizing the consequences ofbecoming a gang member. (12 RT 2463.) On the other hand, “gangs becomesort of the urban poor’s version of teenage suicide.” (12 RT 2461.) Once involved in a gang,it is difficult for a gang member to leave the gang. (12 RT 2464-2465.) Mr. Sandoval’s youngerbrother, Avel, never became involved with gangs, because Mr. Sandoval told him not to. (12 RT 2486-2487, 2532-2533.) c. Acceptance ofResponsibility and Remorse At the time of the murder of Detective Black, Mr. Sandoval was dating Monica Rodriguez. A couple days after the incident, Mr. Sandoval and Ms. Rodriguez had a telephone conversation in which they discussed whathe had done. Mr. Sandoval wascrying during the conversation. (12 RT 2500.) While Mr. Sandoval wasin countyjail awaiting trial, he received regular visits from a chaplain of the Archdiocese of Los Angeles. Although the chaplain had beenvisiting with inmates for nearly ten years, this wasthe first case in which he testified. According to the chaplain, Mr. Sandoval wasin the process, while in -57- jail, of making a painful transition from being a boy to becoming a man. In his meetings with the chaplain, Mr. Sandoval took responsibility for taking the lives of two people. He expressed sincere remorsefor his victims and for the pain he has caused his family. (12 RT 2401, 2409-2412, 2425.) d. Conditions ofConfinement and Future Dangerousness James Esten was an administrator in the California Department of Corrections and Rehabilitation. He is now retired. (12 RT 2331.) Ina hearing conducted outside the presenceof the jury, Mr. Esten testified that he interviewed Mr. Sandoval twice and familiarized himself with the facts of this case. He also reviewed records regarding Mr. Sandoval’s incarceration in the Los Angeles CountyJail, including a report regarding an incident during which Mr. Sandoval was stabbedin the jail. (12 RT 2333, 2341-2342.) Mr. Esten hadtestified in approximately 55 prior cases concerning the subjects of prison gangs, inmate adjustmentto custodial settings, and prospects of inmates’ future dangerousness, (12 RT 2332.)* Hetestified that the best meansof assessing potential for future “ On cross-examination, the chaplain testified that he is opposedto capital punishment. Hestated: “Society ha[s] no right in taking someoneelse’slife.” (12 RT 2419-2420.) *S In four capital appeals, this court has expressly referenced testimony given by Mr. Esten. (People v. Martinez (2010) 47 Cal.4th 911, 962-963; People v. Jackson (2009) 45 Cal.4th 662, 675, cert. den. sub nom. Jackson v. California -58- dangerousnessis to look at past behavior. Judging bythis criterion, Mr. Esten stated there is no indication Mr. Sandoval would pose any problemsin the type of security setting in which he would be confined if he were to receive a sentnece of life without parole. (12 RT 2335.) Further, Mr. Estentestified that correctional officers view themselves as part of the law enforcement community, and for that reason, the fact that Mr. Sandovalhad killed a police officer would affect the way correctional officers treated him. (12 RT 2346-2347.) By wayofproffer, defense counsel stated that Mr. Esten would alsotestify that Mr. Sandoval would betreated as a “snitch” in prison, because he had given up some namesduring the course of his confession. Because Mr. Sandoval had given up names, gang membersin prison would put a “green light” on him, which could result in prisoners attacking him. (12 RT 2340-2341, 2345.) Thetrial court ruled that it would not allow the defenseto elicit testimony from Mr. Esten in the presence of the jury regarding 1) the prison conditions in which Mr. Sandoval would be confined, 2) the circumstances of the stabbing of Mr. Sandovalin the countyjail, 3) the prospect that Mr. Sandoval would be (2009) 129 S.Ct. 2829; People v. Elliot (2005) 37 Cal.4th 453, 464, cert. den. sub nom.Elliot v. California (2006) 549 U.S. 853; People v. Cornwell (2005) 37 Cal.4th 50, 65, cert. den. sub nom. Cornwell v. California (2006) 546 U.S. 1216.) -59- treated differently by correctional officials because he hadkilled a police officer, and 4) the potential ofMr. Sandoval being deemeda “snitch” in prison. (12 RT 2339, 2343-2346, 2349-2352.) The trial court ruled that Mr. Esten could only testify about the subject of future dangerousness, and that in doing so, he would have to avoid reference to the foregoing subjects. (12 RT 2351-2352.) Given the constraints imposedbythetrial court, defense counsel did not present any testimony from Mr. Esten to the jury. (12 RT 2438.) 3. The Prosecution’s Rebuttal Case On October 1, 2002, while jury selection was going forward, a courtroom security officer found a makeshift symbol in a holding cell in which Mr. Sandoval had been confined. The symbol consisted oftwo pieces of paper rolled up into two lines, situated underneath three rolled up paper balls. (12 RT 2557-2559; People’s Exhibit 93.)*° A detective from theprison gang section of the major crimes bureau in the Los Angeles County Sheriff's Departmenttestified that the makeshift symbol represented an Aztec or Mayan number13, and that the number 13 signifies allegiance to the Mexican Mafia and the Surefio gang. (12 RT 2563- ‘6 At the time this symbol was found, Mr. Sandoval wasclassified by Los Angeles CountyJail officials as a “K-10” inmate. K-10 inmates are those deemed by jail officials to pose the greatest threat of danger to others. (12 RT 2556, 2559- 2561.) -60- 2566.) On October 11, 2002, while the evidentiary portion of the guilt phase was proceeding,jail officials searched Mr. Sandoval’s single-occupantjail cell. They found a styrofoam cup. Etched into the cup were the terms “Soy Menace” and “Comptone.” (12 RT 2542-2544.) “Soy Menace” means “I am Menace.” “Comptone”is a gang-related reference to the B.P. clique to which Mr. Sandoval belonged. C. Penalty PhaseRetrial In large part, the evidentiary presentation in the penalty phaseretrial consisted of a rehash of the evidencepresentedin both the guilt phasetrial and the 1.77original penalty phasetrial.*” However, there were differences in the evidence ‘’ The following witnessestestified before the jury in the guilt phase: Melina Runnels (6 RT 1110), Steven Lasiter (6 RT 1120, 1263; 7 RT 1430, 1484), Angela Estrada (6 RT 1156), Steven Prell (6 RT 1206; 9 RT 1855; 10 RT 1954), Christine Estrada (6 RT 1213), Desirée Rodriguez (7 RT 1275), Lucinda Lara (7 RT 1290), Camile Roe (7 RT 1363), Kristen Trochez (7 RT 1377), Emily Lara (7 RT 1396), Virgil Wade (7 RT 1451), Rosa Gallegos (7 RT 1464), Lucero Rodriguez (7 RT 1470), Pedro Rodriguez (7 RT 1477), Lawrence Dorr (7 RT 1492), Hugo Cortes (7 RT 1502), Abel Morales (7 RT 1515), Felipa Guerrero (7 RT 1524), Maria Cervantes (7 RT 1531), Stanley Jordan (7 RT 1540), Rick Delfin (8 RT 1559), Bryan McMahon(8 RT 1599), Hector Nieves (8 RT 1623), Paul Edwards (8 RT 1630), Dale Higashi (8 RT 1657), Eugene Carpenter, Jr. (8 RT 1710), Sameer Mistry (8 RT 1737), Jimmy Lee Falconer (9 RT 1761), Ignacio Lugo (9 RT 1781), and Richard Valdemar. (9 RT 1863.) The following witnessestestified before the jury in the original penalty phase: Michael Fields (11 RT 2108), John Kuibus (11 RT 2116), James Carroll -6l- presented: 1. Mr. Sandoval’s Date ofBirth Mr. Sandoval’s date of birth is August 8, 1981. While no evidence regarding his precise date of birth was introduced during the originaltrial (ante, fn. 41), the parties entered a stipulation regarding his date of birth in the retrial. (20 RT 4148.) //] (11 RT 2125), Veronica Segura (11 RT 2132), Leticia Cervantez (11 RT 2138), Fernando Gonzales (11 RT 2146), Juan Carrillo (11 RT 2150), Stephen Davis (11 RT 2166), Steven Lasiter (11 RT 2175), Steven Prell (11 RT 2194; 12 RT 2542), Ignacio Lugo (11 RT 2196), Daniel Puls (11 RT 2204), Fred Cerra (11 RT 2214), Yul Long (11 RT 2221), Anthony Batts (11 RT 2231), Debbie Delfin (11 RT 2254), Robert Knight (11 RT 2274), Howard Black (11 RT 2286), Karen Black (11 RT 2293), Connell Black (11 RT 2300), Nancy Sandoval (12 RT 2362), Maria Sandoval (12 RT 2383), Reynalda Macias (12 RT 2390), Gonzalo Devivero (12 ‘RT 2401), Francisco Virgin (12 RT 2427), Alonso Sandoval (12 RT 2444), Gregory Boyle (12 RT 2458), Areli Sandoval (12 RT 2475), Maria Ramirez (12 RT 2477), Avel Sandoval (12 RT 2484), Monica Rodriguez (12 RT 2499), Alma Sandoval (12 RT 2504), Michael Kennard (12 RT 2555), and Christopher Brandon. (12 RT 2563.) In the penalty phaseretrial, all but seven of the aforementioned witnesses testified, or had their testimony from the originaltrial read to the jury in theretrial. The seven whodid nottestify in the penalty phaseretrial are Angela Estrada, Kristen Trochez, Richard Valdemar, Gonzalo Devivero, Monica Rodriguez, Michael Kennard, and Christopher Brandon. Thetestimony of Felipa Guerrero, Lawrence Dorr, M.D., and Gregory Boyle from the originaltrial was read to the jury in the penalty phaseretrial. (19 RT 3798-3804; 20 RT 4028-4041; 22 RT 4517-4535.) Also in the penalty phaseretrial, the defense called three witnesses whohadnotpreviously testified in the case: Cruz Perez, Isidro Llamas, and Jose Llamas. (21 RT 4388; 22 RT 4416, 4426.) -62- 2. Mr. Sandoval’s Level ofEducation Mr. Sandoval dropped out of high school in the tenth grade. Heis able to read and write in English with no problem. (21 RT 4279.) 3. Mr. Sandoval’s Appearanceat the Time ofHis Arrest and at the Time ofthe Retrial Atthe time of his arrest, Mr. Sandoval’s hair was cut short. (17 RT 3523- 3524.) During the prosecutor’s cross-examination of Mr. Sandoval’s uncle, Francisco Virgin, the prosecutorelicited evidence that Mr. Sandoval’s head had been shaved whenhehad goneto stay with Mr. Virgin in Chowchilla, and insinuated that Mr. Sandoval “look[ed] like a gang member”with thathairstyle. (21 RT 4382-4383.) The prosecutoralso elicited testimony from Mr. Sandoval’s sister, Nancy Sandoval, that Mr. Sandoval’s head had been shaved until approximately two monthsbeforethe retrial. (22 RT 4501.)** Then, during closing argumentin theretrial, the prosecutor stated that Mr. Sandoval had appeared before the jury with his hair grown out in an effort to “deceive” the jury. The prosecutoralso told the jury Mr. Sandoval’s hair would not remain grown out “for 15 minutesafter [its] verdict.” (23 RT 4605-4606, 4618.) Mf] 48 Mr. Sandoval’s sister noted that Mr. Sandoval has had different hair styles over the course of various time periods. (22 RT 4512-4513.) -63- 4. The Identity ofthe Shooter in the J.K.I. Shooting Incident at McDonald’s Mr. Sandovaltold police that he, rather than Rascal, was the shooterin the J.K.I. shooting incident at the McDonald’s restaurant in Lynwood. (17 RT 3528- 3531; 18 RT 3545-3546.) However, the prosecutor told the jury Rascal wasthe shooter. (17 RT 3388-3389; 23 RT 4603-4604.) 5. Mr. Sandoval Was Shot in October of1999 On October 16, 1999, just six days after the fatal shooting of Jesus Cervantez at McDonald’s, Mr. Sandoval wasshot in the arm during a drive-by shooting. The parties stipulated to this fact in the retrial. (20 RT 4142-4143.) 6. The Duration ofthe Rivalry Between B.P. and E.S.P. Therivalry between B.P. and E.S.P. has been ongoingsinceat least 1989. (20 RT 4150.) 7. Mr. Sandoval’s Tearful Conversation with His Girlfriend The jury in the penalty phaseretrial did not hear the testimony of Mr. Sandoval’s girlfriend, Monica Rodriguez, that, during a conversation the two of them had over the phone a couple daysafter the murder of Detective Black, Mr. Sandoval was crying whenhe told Ms. Rodriguez what he had done. (12 RT 2500.) -64- 8. Toro Was Asleep at the Time ofthe Shooting Toro wasasleep inside his homeat the time the shooting occurred. (19 RT 3739.) 9. Maria Cervantes and Her Daughter Maria Cervantes’ daughter is named Milegras, which means“very big miracle.” (19 RT 3814.) Ms. Cervantes was seven monthsalong in her pregnancy whenshewasshot. (19 RT 3905.) As of the date of Ms. Cervantes’ testimony in the retrial, April 3, 2003, the bullet that struck her wasstill inside her. (19 RT 3811.) 10. Detective Delfin’s Emotional Outburst in the Retrial During the retrial, Detective Delfin testified that Mr. Sandoval showed no mercy during the shooting. (19 RT 3852-3853.) Then, when the prosecutor asked the detective how the injuries he suffered during the shooting had affected his ability to pursue his career as a gang detective, the detective answered, “I’m no longer able to work the streets. The citizens of Long Beach no longer have an officer who cares as muchas I do anymorebecausethis son of a bitch shot me.” (19 RT 3835-3836.) The detective was wearing his uniform duringhis testimony. /// /// -65- (19 RT 3967.) II, Eyewitness Characterization ofthe Manner in Which Detectives Black and Delfin Approached Rascal Just Before the Shooting Jimmy Lee Falconer, who witnessed the shooting,testified that immediately before the shooting, it appeared that the detectives were preparing to “jack” Rascal. (20 RT 3991.) Mr. Falconer defined the term “jack” as an “unnecessary stop by a police officer of a civilian[.]” He added: “[BJut it’s part of what police do ... in those type[s] of neighborhoods.” (20 RT 3997-3998.) 12. Gang-Related Items Foundin Jail Cells Occupied by Mr. Sandoval No evidence waspresentedin theretrial regarding the makeshift Mexican Mafia symbol found in the holding cell in which Mr. Sandoval had been confined. Duringtheretrial, the trial court refused to allow the defenseto elicit evidence that, in 1996, the Mexican Mafia had issued an edict prohibiting Surefio gang ” After the detective’s outburst, the trial court said, “Excuse me.” The court then asked the jury to exit the courtroom. The court characterized the detective’s remark as “dramatic” and “emotional.” Defense counsel moved to “dismiss the penalty phase on due process grounds”, and alternatively moved for a mistrial, noting that Detective Delfin is a governmentofficial. Defense counsel quoted from Justice Brandeis’ dissenting opinion in Olmstead v. United States (1928) 277 U.S. 428: “If the government becomesa lawbreaker, it breeds contemptfor the law.” (/d. at p. 485.) The court denied the motions. (19 RT 3836-3837.) Later, the court ordered the jury to “disregard the profanity that was used in characterizing the defendantby this witness.” (19 RT 3840.) -66- members from engaging in drive-by shootings. In the wakeofthis ruling, defense counsel requested the court to exclude the evidence regarding the makeshift symbol foundin the holding cell, which, according to the prosecution, showed Mr. Sandoval’s continuing allegiance to the Mexican Mafia. (20 RT 4171-4174.) The prosecution did not attempt to present the evidence. Also, the prosecution did not present evidencein theretrial regarding the styrofoam cup with gang-related etchings that was found in Mr. Sandoval’sjail cell. (12 RT 2542-2544.) 13. The Meaning of “Menace” A gang expert testified that the moniker “Menace”is for a gang member who posesa threat to others. (20 RT 4201.) 14. Gang-Expert Testimony Regarding Mr. Sandoval’s Intent A gang expert testified that when the B.P. members went to Toro’s house, their intention wasto participate in a “blood bath.” He said “they threw caution to the wind,” that “they were going to shoot into the house and target everyone,” and that Mr. Sandoval’s possession of the assault weaponserved as “an exclamation point.” (20 RT 4201-4202.) He opined that Mr. Sandoval’s intendedrole in the planned shooting at Toro’s residence was to do the majority of the shooting. (20 RT 4215-4216.) He maintained this opinion, despite his acknowledgmentthat, in -67- a w the originaltrial, he had testified Mr. Sandoval’s intended role was to provide coverfor his fellow gang members, and despite his acknowledgmentthat he had no idea how theplanned shooting at Toro’s residence would have beencarried out if it had occurred. (20 RT 4216, 4219.) 15. The Nature ofa CAR-15 A CAR-15 is more compact than an AR-15, and is therefore easier to carry around. (20 RT 4246.) 16. Presentation to the Jury ofTranscripts From Which Information Regarding Mr. SandovalShooting Other People with the CAR-15 Was Not Redacted Whenthe tape-recording of Mr. Sandoval’s confession was played to the jury in theretrial, copies of transcripts of the recording were provided to the jurors. As the tape-recording was played, defense counsel noted that the version of the transcript furnishedto the jurors had text in it that the court had ordered redacted. The text that should have been redacted consisted the following question and answer: Detective: Haveyouevershot anyoneelse with [the CAR- 15]? Mr. Sandoval: Yes, sir. J have. (21 RT 4288.) -68- A copy ofthe un-redacted transcript reflects this text. (2 CT 468.) After the defense noted the inclusion ofthis text in the version of the transcript furnished to the jurors, the prosecutor and court noted that, as they were reading along when the tape was played for the jury, they had also realized the text should not have been included. (21 RT 4288.)°° The court then informedthe jurors that they were to disregard that text and that “there is absolutely no evidence the defendant ever shot anyone else with the CAR-15....” (21 RT 4289.) Thereupon, the court had the bailiff collect the un-redacted transcripts from the jurors. (21 RT 4289.) A redacted version ofthe transcript was later received in evidence. (Supp. V CT 37- 92.) 17. Detective Black’s Christianity A friend of Daryle Black’s, who served with him in the Marine Corps, described Daryle Black as ‘“‘a good Christian man.” (21 RT 4303.) 18. Mr. Sandoval’s Soccer Prowess Twoofthe coaches of a soccer team on which Mr. Sandoval played when he was a young teenagertestified in the retrial. (22 RT 4416-4434.) They testified that he was an “awesome”soccer player. When he wasonly 14, he °° The court later commented that it had observed jurors reading their transcripts as the tape-recording was played. (21 RT 4297.) -69- a t played on a team comprised of men. (22 RT 4428.) He got along well with his teammates. (22 RT 4417.) 19. The Break-Up ofthe Sandoval Family While Mr. Sandoval was on the soccer team, his father began dating Rosario Gomez, whowasrelated to one of the soccer coaches. (22 RT 4424, 4429.) He was “greatly” impacted whenhis father began dating Ms. Gomez. (22 RT 4429.) Mr. Sandoval’s father effectively “left the family” when he began dating Ms. Gomez. (22 RT 4431.) 20. No Evidence ofRemorse As noted at pages 57-58, ante, evidence of Mr. Sandoval’s remorse and acceptance of responsibility was presented during the original penalty phase. Testimony concerning his remorse was presented by Mr. Sandoval’s girlfriend, Monica Rodriguez, and a chaplain, Gonzalo Devivero. However, as noted at footnote 47 and page64,ante, neitherof these witnessestestified during the retrial. Thus, no evidence of Mr. Sandoval’s remorse waspresentedin theretrial. /// /// /// -70- INTRODUCTION Theissues presentedin this brief arise out of eight different phases/aspects oflitigation in this case: e Litigation of Fourth Amendmentissues during pretrial proceedings. (Discussion I, pp. 72-116, infra.) e The process of death qualification during jury selection. (Discussion II, pp. 116-129, infra.) e The guilt phase. (DiscussionsIII-XI, pp. 130-262, infra.) e Undertaking a penalty phaseretrial after juror deadlockin the original penalty phase. (Discussion XII, pp. 262-269, infra.) e Jury selection in the penalty phaseretrial. (Discussion XIII, pp. 269- 318, infra.) e The penalty phaseretrial. (Discussions XIV-XX, pp. 319-379,infra.) e “Harmless”error review of penalty phaseerror(s). (Discussion XX], pp. 380-382,infra.) e The death penalty itself. (Discussion XXII, pp. 382-384, infra.) /// /// /// -71- DISCUSSION I. BECAUSE THE TRIAL COURT FAILED TO CONDUCT AN EVIDENTIARY HEARING TO RESOLVEISSUES OF FACT RAISED BY MR. SANDOVAL’S SUPPRESSION MOTION, AND BECAUSETHE TRIAL COURT RELIED ON EXTRAJUDICIAL FINDINGS TO DENY THE MOTION, MR. SANDOVALIS ENTITLED TO A REMANDFOR A FULL AND FAIR HEARING. At approximately 6:00 a.m. on May 2, 2000, police executed a search warrant at Mr. Sandoval’s home. (8 RT 1630, 1652-1653.) Execution of the warrant wasfruitful: It resulted in discovery of the murder weapon (8 RT 1636- 1637; 1 CT 99), and the arrest of Mr. Sandoval. (8 RT 1631-1632; 1 CT 99.) And, shortly after Mr. Sandoval’s arrest, he confessed. (10 RT 1966-1968; People’s Exhibits 73 and 73-A; 2 CT 268-322.) Mr. Sandoval sought to suppress this damning evidence, contending material information had been intentionally or recklessly omitted from the affidavit submitted in support of the request for the search warrant. Mr. Sandoval requested suppression of this evidence in a written motion, and then, after the discovery of new evidence, in a supplemental, written motion. (3 RT 306-311, 314-316, 524-529; 1 CT 97-140, 236-241.) He requested an opportunity to prove /// -72- his allegationsat an evidentiary hearing,i.e., a Franks*' hearing. (3 RT 309-311, 314-316; 1 CT 97-98, 103-104, 236, 240-241.) Although Mr. Sandovalproffered evidence regarding the information omitted from the affidavit (3 RT 306-311, 524- 529; 1 CT 105-140, 239-241), the trial court denied Mr. Sandoval’s motion, as originally crafted and as supplemented, without conducting an evidentiary hearing. (3 RT 317-319, 526-529.) Significantly, the trial court’s ruling — denying the motion and refusing to conduct an evidentiary hearing — was,in part, based on the court’s reliance onits own“extrajudicial” fact finding: In a previous evidentiary hearing, concerning a motion to suppressfiled by Rascal (Supp. [IV CT 20-29), the trial court had made findings of fact and witness credibility determinations. (Aug. RT 87-91.) Mr. Sandoval was nota party to that motion. Yet, in ruling on Mr. Sandoval’s suppression motion,thetrial court relied onits “extrajudicial”findings and *' Franks v. Delaware (1978) 438 U.S. 154. * The term “extrajudicial” is somewhat of a misnomerin this context: “Extrajudicial” is defined as “[t]hat which is done, given, or effected outside the course of regular judicial proceedings.” (Black’s Law Dict. (5" ed. 1979) p. 526, col. 1.) Although the findings in question were madebythetrial court in a judicial proceeding, they were made “outside the course of regular judicial proceedings” to which Mr. Sandoval wasa party. Hearsay statements are often called extrajudicial statements (Correa v. Superior Court (2002) 27 Cal.4th 444, 459; People v. Brown (1994) 8 Cal.4th 746, 749), and prior judicial findings and judgments made in one judicial proceeding are hearsay whenoffered to provetheir truth in a -73- determinationsat the hearing on Rascal’s motion. (3 RT 522-524, 526-527.) This reliance on extrajudicial fact finding was improper. Given the foregoing circumstances, Mr. Sandoval was denied the opportunity to receive full and fair consideration of his motion to suppress. Not only did thetrial court err by failing to conduct an evidentiary hearing to resolve the issues of fact raised by Mr. Sandoval’s motion, but also the trial court violated Mr. Sandoval’s due processrights by predicating its denial of the motion on extrajudicial fact finding. Accordingly, Mr. Sandovalis entitled to a remandto the trial court for a full and fair hearing on his motion to suppress. A. Standard ofReview The propriety ofa trial court’s decision to deny a Franks hearingis reviewed de novo. (People v. Panah (2005) 35 Cal.4th 395, 457, cert. den. sub nom. Panahy. California (2006) 546 U.S. 1216; People v. Benjamin (1999) 77 Cal.App.4th 264, 271.) /// /// separate judicial proceeding. (Motomura, Using Judgments as Evidence (1986) 70 Minn.L.Rev. 979, 800.) Thus, in this sense, the findingsofthe trial court in the hearing on Rascal’s suppression motion were extrajudicial in the hearing on Mr. Sandoval’s suppression motion. -74- B. Factual Background Presentation of this claim requires a detailed description of the facts adduced in connection with the separate litigation of the suppression motionsfiled by Mr. Sandovaland Rascal. 1. Rascal’s Arrest At approximately 2:30 a.m. on April 30, 2000 — three hours after Mr. Sandoval shot the detectives on Lime Avenue— officers found Rascal hiding in the yard at 2051 Lime Avenueandplaced him underarrest. (2 RT 125.) According to police, they interviewed Rascalbriefly at the scene. (2 RT 127.) Rascal told the arresting officers that he was on parole, that he had been deported, and that he did not wantto go to jail. (2 RT 127-128, 140-141, 147, 149.) He told the officers he had been walking homeaftervisiting a friend. (2 RT 127.) He claimed that he heard numerousgunshots as he was walking, andthat he hid after observing a rapid police response. (2 RT 127-128.) During a briefing regarding the events surrounding the murder of Detective Black, officers learned that Detective Delfin had provided a description of an individual he had seen on the street immediately before the shooting. The physical description ofthat individual matched Rascal, and the descriptionofthe attire worn bythat individual matched the clothing Rascal was wearing. (2 RT 128.) -75- t ? * e 2. Police Initially Suspected that the Shooting Was Carried Out By Membersofthe Crips Gang In Retaliationfor a Fatal Officer-Involved Shooting ofa Crips Member Despite the circumstances under which police found Rascal, certain police officers initially suspected Detective Black had been murdered by African- American gang membersinretaliation for an officer-involved shooting of an African-American male that had occurred the day before the murder of Detective Black. (2 RT 126-127.) Accordingly, during the time-frame in which Rascal was being arrested and questioned, Detective Kevin Nelson of the Long Beach Police Department prepared an affidavit in support of a request for a warrant to search the residence of the mother of the African-American male who had been shotand killed the day before. Detective Nelson sought a warrant to search the residence of Joanna Boyce located at 1992 Lime Avenue. Joanna Boyce was the motherofBilly James Johnson. (1 CT 136.) Mr. Johnson was a memberofa Crips gang that was active in the area of Lime Avenue. (1 CT 136-137.) On April 28, 2000, the day before the fatal shooting of Detective Black, Mr. Johnson had been involved in a confrontation with officers of the Long Beach Police Department, in which he was shot and killed. (1 CT 136.) Then, on April 29, 2000, at some time before Detective Black waskilled, a black male, who identified himself as a friend of Mr. -76- Johnson’s, told a Long Beachpolice officerthat “there’s gonna be payback”for the killing of Mr. Johnson. (1 CT 137.) Because 1) Mr. Johnson had resided at 1992 Lime Avenuewith his mother, 2) the fatal shooting of Detective Black occurred in the 1900 block of Lime Avenue,and 3) a friend or associate of Mr. Johnson’s had threatenedto retaliate against police for the death of Mr. Johnson, Detective Nelsonstated in his affidavit that he believed Crips membersassociated with Mr. Johnson may have made good ontheir threats by shooting Detective Black. (1 CT 138.) At approximately 5:05 a.m. on April 30, 2000, just about six hours after the murder of Detective Black, Hon. D.B. Anderwsissued the warrant requested by Detective Nelson, directing officers to search the residence ofJoanna Boyceat 1992 Lime Avenue. (1 CT 103; 120, 137, 140.) Police executed the warrant. (2 RT 152.) 3. Interrogation ofRascal at the Long Beach Police Department Over the Course ofThree Days After the initial police questioning of Rascal at the scene, police took Rascal to the Long Beach Police Station for further questioning. (2 RT 128.) Police questioned Rascal there over the course of the next three days: April 30, 2000, May1, 2000, and May2, 2000. (2 RT 173.) Police did not Mirandize him until 3:50 p.m. on May,2, 2000. (2 RT 179.) -77- “ ) a. Sunday — April 30, 2000” Police began interviewing Rascal at the Long Beach Police Departmentat approximately 4:12 a.m. on April’30, 2000. (2 RT 128.) At that time, Rascal repeated his claim that, at the time of the murder of Detective Black, he had been walking homefrom a friend’s home. Hesaid that when he wasnearthe intersection between 20" Street and Lime Avenue,he had seen four black male gang members whoyelled gang-related profanities at him. (2 RT 128-129; 1 CT 110.) He said he ran away from those black gang membersand heard numerous gunshots as he wasfleeing. (2 RT 130-131; 1 CT 110.) Rascal had been in possession of a .45 caliber handgun, but he discarded it because he did not want police to find him in possession of the gun. (2 RT 132-133; 1 CT 111.) He then hid in the backyard of a Lime Avenueresidence until he was arrested. (2 RT 131.) The early-morning interview of Rascal lasted longer than an hour. Police then briefly re-interviewed Rascal at 7:30 a.m. (2 RT 151.) Thereafter officers wentto the crime scene in an attemptto verify certain aspects of the statement Rascal had given them. (2 RT 135, 146.) Based on this follow-up investigation, police cameto believe that “he may have seen more”than he wasreporting to * Thetrial court took judicial notice of the fact that April 30, 2000, was a Sunday. (8 RT 1616.) -78- them. (2 RT 136.) After investigating details of statements furnished by Rascal, police began re-interviewing Rascal at approximately 12:30 p.m. (2 RT 136.) Rascal asked: “Should I have a lawyerfor this?” (2 RT 138-139.) The homicide detectives who were interviewing him told him “that he didn’t need an attorney.” (2 RT 141.) According to the detectives, they did not view Rascalas a suspect in the shooting at this time. (2 RT 139.) They told him they “believed he could have seen more than he wasrelaying to [them].” (2 RT 137; 2 CT 333.) He then stated he had witnessed the shooting. He said the shooter was one of three men. However, he said the shooter was wearing a hooded sweatshirt and that he had been unable to see the shooter’s face. (2 RT 137-140.) Police questioning of Rascal stopped for several hours, and resumed-again at approximately 5:00 p.m. (2 RT 155-156.) This interview session went onuntil approximately 10:30 p.m. (2 RT 169.) During the interview,one of the detectives told Rascal that Detective Delfin had been seriously injured in the shooting and wasfighting for his life in the hospital. Rascal began crying. He said he knew Detective Delfin. Although Detective Delfin had previously arrested Rascal, he had treated Rascal with respect. (2 RT 157; 1 CT 111; 2 CT 333.) Rascal said he wouldtell the police what he knew,but that he was fearful for the safety of -79- himself and his family. He expressed concern about coming to be known as a “snitch.” (2 RT 158; 2 CT 334.) Rascal said he had spent time with three individuals shortly before the shooting: Mr. Sandoval, a friend of Mr. Sandoval’s knownas “Tanker,” and a young Hispanic friend of Tanker’s whose nameRascal did not know. The four of them droveto the location of the shooting in two cars. Rascal and Mr. Sandoval were not in the same vehicle. Rascal said he had been unaware why they went to that location. (2 RT 159-160; 2 CT 337-351, 367.) He said that when they parked on Lime Avenue, Mr. Sandoval stepped out of one of the cars. He was holding an AR-15. (2 CT 347-352.)" In order to see what was going on, Rascal stepped out of the vehicle in which he hadarrived at Lime Avenue. (2 CT 350.) Rascal saw an undercoverpolice vehicle pull onto Lime Avenue. (2 CT 353-354.) He began walking on the sidewalk, hopingthe officers in the undercovervehicle would not notice him, because, as noted above, he wason parole andillegally in the country. (2 CT 350-351, 355.) Mr. Sandoval then began shooting at the undercoverpolice vehicle. Rascal said he heard approximately 14 or 15 gunshots. (2 CT 356, 358- 360.) //] * Rascal claimedhe had notpreviously seen the AR-15. (2 CT 352.) -80- Rascal then ran, jumped over a fence into somebody’s yard, and hid. (1 CT 113; 2 CT 360.) He had a .45 caliber handgun, but put it downas he washiding. (1 CT 113; 2 CT 363.) He hid until SWATofficers located him. (2 CT 364-365.) After his arrest, he “directed officers to the location where he hadleft the [.45 caliber] gun.” (1 CT 111.) Rascal told the detectives who were interviewing him that he and Mr. Sandoval were both B.P. members. (2 CT 337, 367.) He said he had been aware ofproblems between B.P. and E.S.P., that E.S.P. members resided on Lime Avenue, and that these circumstances may have been the reason why Mr. Sandoval had goneto that location. (2 CT 368.) Notwithstanding the foregoing circumstances, police testified that they viewed Rascalas a witness rather than a suspect during their questioning of him on April 30, 2000. (2 RT 137, 150, 159-160.) b. Monday —May 1, 2000 Police questioning of Rascal on May 1, 2000 related principally to police efforts to locate Mr. Sandoval. (2 RT 173.) Rascal provided police with information concerning the location of Mr. Sandoval’s mother’s homein Los Angeles, and Rascal made phonecalls to Mr. Sandovalin an effort to assist police in apprehending Mr. Sandoval. (2 RT 163-164.) -81- % r h Police testified that, during their questioning of Rascal on May 1, 2000, they still deemed him a witness rather than a suspect. (2 RT 165.) c. Tuesday —May 2, 2000 Police continued questioning Rascal on May 2, 2000. This questioning occurred after Mr. Sandoval had been arrested and questioned.” Police told Rascal they appreciated his cooperation up to that point, but that they had Mr. Sandovalin custody and that information provided to them by Mr. Sandoval differed from what Rascal had told them. They told Rascal they “needed to get the whole truth from him.” (2 RT 165-166.) They Mirandized Rascal (2 RT 166- 168), and he madea statement to them in which they deemedhisrole to be that of a suspect rather than a witness. (2 RT 168.)°° Police testified that they learned an attorney was attempting to see Rascal in the evening on May2, 2000. (2 RT 175.) However, they did not allow the attorney to see Rascal at that time. (Aug. RT 43-46.) /// °° The circumstances regarding the arrest of Mr. Sandovalearly in the morning on May2, 2000, which have been discussed in the Statement of Facts, ante, are discussed further below. °° Tn that statement, which wasrecorded, Rascal indicated that he and fellow B.P. gang membershad driven over to Toro’s residence on Lime Avenue to retaliate for E.S.P.’s drive-by shooting at the B.P. hang out. (2 CT 380-392.) -82- 4. The Warrant to Search Mr. Sandoval’s Home Detective Steven Smith prepared the affidavit in support of the request for a warrant to search Mr. Sandoval’s home. (1 CT 106, 108.) Detective Smith submitted the affidavit to Hon. Gary Ferrari on the evening ofMay 1, 2000. (1 CT 99, 106.) In the affidavit submitted to Judge Ferrari, Detective Smith did not divulge that Long Beach police officers had already sought and obtained, from a different judge, a warrant to search the homeofother individuals suspected to have been involved in the murder of Detective Black. (1 CT 103.) In a section of the affidavit entitled “Statement of Probable Cause,” the detective described the following facts regarding the early phasesofthe police investigation: Detective Delfin, who was undergoing treatmentfor his injuries in the Long Beach Memorial Hospital, told a fellow detective that he had been driving southbound on Lime Avenue toward 20" Street, and had then stopped behind the rear of a silver, parked, four-door vehicle. He saw a young Hispanic male with a medium build and “a long style haircut” standing near the open driver’s door of the silver vehicle. This individual did not look at Detective Delfin’s vehicle. “Rather[,] he was looking at housesto the west.” Detective Delfin then saw another Hispanic male exit the silver vehicle and run eastbound across Lime -83- * * e n Avenue. (1 CT 108-109.) Then, gunfire began striking the police vehicle. The shots were fired from a position directly to the west of the police vehicle. (1 CT 110.)*’ While searching for suspects after the shooting, police found Rascal hiding in the courtyard of the home located at 2051 Lime Avenue. They learned that a warrant for his arrest was outstanding dueto a parole violation, and that he had been committed to the California Youth Authority pursuantto a juvenile court finding that he had violated Penal Code section 245, subdivision (a)(1).°8 (1 CT 110.) Police interviewed Rascal as “a witness to the shooting.” Rascalinitially told them he had been confronted by a group of black males who chased him. He said that while he wasfleeing, he had seen several males, one of whom wasfiring *’ This account attributed to Detective Delfin by Detective Smith differed from Detective Delfin’strial testimony regarding the shooting and the events immediately preceding the shooting: Whereas Detective Smith asserted that Detective Delfin had seen a young Hispanic male with long hair before seeing another Hispanic male cross the street (1 CT 108-109), Detective Delfin testified at trial that he had only seen a bald-headed Hispanic male crossing the street, and had been unawareof the presence of anyoneelse in the vicinity before the shooting commenced. (8 RT 1567-1568, 1571.) *8 Pursuant to Penal Code section 245, subdivision (a)(1), it is a felony to commit “an assault upon the person of another with a deadly weaponor instrument other than a firearm or by any meansofforce likely to produce great bodily injury...” -84- shots from a long rifle. (1 CT 110.) He volunteered that he had been in possession of a handgun andthat he had discarded it before he was apprehended. Rascaltold police that Detective Delfin “could vouchfor his veracity.” (1 CT 111.) Detective Smith stated in his affidavit that it became apparentto police that < e Rascal wasnotbeing fully forthright with them. They told Rascal that Detective Delfin had been injured in the shooting. Upon hearing this, Rascal became “visibly shaken.” He then told the police that Mr. Sandoval, who wasoneofhis ¢™ fellow B.P. gang members, wasthe person responsible for the shooting. (1 CT 111.) Rascal stated that he, Mr. Sandoval, a person known as “Tanker,” and a fourth person whose name Rascal did not know,all drove to the area of the shooting in two cars — a red Toyota Corolla and a gold Nissan Maxima. Rascal did not know whythey were stopping there. After they stopped, Mr. Sandoval stepped out of the red Toyota. He was holding an AR-15. Rascal then stepped out of the Nissan. He walked to the sidewalk on the east side of Lime Avenue and headed northbound. He saw an unmarkedpolice vehicle turn onto Lime Avenue heading southbound. Mr. Sandoval began shootingat the police vehicle whenit cameto a stop near the point where Rascal was walking. (1 CT 111-113.) Rascal then took off running andhid until he waslater found by police. (1 CT 113.) ‘ -85- Rascalidentified a photograph of Mr. Sandovalin a photo line-up and then led police to the location where Mr. Sandovalresided. (1 CT 113-114.) Detective Smith also noted in his affidavit that a man named Jimmy Falconerhad informedpolice he had been in a vehicle on Lime Avenueatthe time of the shooting. As he waspreparing to back his vehicle out of a residential driveway, he noticed an unmarkedpolice vehicle driving southbound on Lime Avenuepasthis location. After the police vehicle passed him, he began backing out of the driveway. As he backed ontothe street, he observed a Hispanic male | walking from the westside to the east side of Lime Avenue. The police vehicle moved toward the Hispanic male, causing Mr. Falconerto believe the police were going to make contact with the Hispanic male. (1 CT 114.) Just then, Mr. Falconer saw a Hispanic male with a shaved head leaning overthe roof of a vehicle parked on the west side of Lime Avenue. (1 CT 114-115.) This Hispanic male was holding a firearm. Two other Hispanic males were standing by him. Theindividual leaning overthe car fired multiple shots at the police vehicle. (1 CT 115.) After the shooting, Mr. Falconer turned his vehicle around and began driving northbound on Lime Avenue. As he wasdriving away, a red vehicle that was also heading northbound on Lime Avenuealmost collided with his vehicle. -86- prosecution. (2 RT 124, 153-154.) Rascal and Maria Puente-Porras, Esq.” were called to testify by the defense. (2 RT 180-182; Aug. RT 39.) The testimonyof the detectives at the evidentiary hearing has been summarized at pages 75-82, ante. The testimony of Rascal and Ms. Puente-Porras at the evidentiary hearing is summarized below: a. Rascal Immediately after police found Rascal hiding, a SWATofficer pinned Rascal on the ground, placing his foot on Rascal’s neck. The officer handcuffed Rascal and asked, ““Where’s the gun?” (Aug. RT 3-4.) Then, police performed a gun-shotresidue test on his hands. (2 RT 181; Aug. RT 4.) Before taking Rascal from the crime sceneto the police department, detectives accused Rascal ofbeing involved in the shooting and questioned him aboutthe shooting. (2 RT 183-184; Aug. RT 81.) The detectives told Rascal a witness had seen him shooting a gun and running. (Aug. RT 5.) Rascal told the detectives he did not wantto talk to them and that he wanted a lawyer. Oneofthe detectives, Steven Smith,®replied: ® Early on in the case, Ms. Puente-Porass appeared in court as Rascal’s counsel. (2 RT 12.) However, she declared a conflict of interest, and another attorney took over as Rascal’s counsel. (2 RT 26-27.) * As noted above, Detective Steven Smith is the officer who prepared the affidavit in support of the request for the warrant to search Mr. Sandoval’s home. (1 CT 106, 108.) -89- “You need to worry about other things besides a lawyer. A cop has beenkilled.” (2 RT 183; Aug. RT 6.) Detective Smith looked at Rascal in a mannerthat signified to Rascal he would be injuredifhe did not talk to them. Rascalfelt he had no choice butto talk to the detectives. (2 RT 183-184.) Police continued questioning Rascal at the scene for approximately 45 minutes without honoringhis request for counsel. (2 RT 182; Aug. RT 6.) Thereafter, police transported Rascal from the crime sceneto the police station. While en route, an officer continued to question Rascal. (Aug. RT 9.) Theofficer asked, “Whydid you guyskill the [cop?]” Rascal said he did not know whatthe officer was talking about. (Aug. RT 10.) At the police station, officers fingerprinted Rascal and allowed him to make a telephone call. (2 RT 182; Aug. RT 12.) Rascal called Christine Estrada (“Lazy”). He told her detectives had been accusing him ofbeing involved in the murderof a police officer. He asked herto call his family and to make arrangements to get him a lawyer. (2 RT 183; Aug. RT 12.) After Rascal spoke with Lazy, Detective Smith and anotherdetective resumedtheir interrogation of Rascal. (2 RT 184.) They told him two witnesses had reported seeing him firing gunshots and runningat the scene, and that the two witnesses had provideda description of the clothes Rascal was wearing. The -90- detectives asked Rascalto tell them what he knew. (2 RT 184-185; Aug. RT 5.) Hetold them he wantedto talk to a lawyer. He gave them the name of a lawyer— James Hodges. Oneof the detectives wrote down the lawyer’s name, laughed, and asked, “You meanto tell me if we call him he’ll represent you[?]” Rascal said, “Yes.” He then told them where Mr. Hodges’ office was located. (2 RT 185; Aug. RT 8.)" However, the detectives ignored Rascal’s request and continued questioning him. (2 RT 186; Aug. RT 9.) Rascal told detectives he was underthe influence of “speed.” (Aug. RT 10- 11.) Detective Smith told Rascal he believed Rascal’s brother had been involved in the murder of Detective Black and that police were out looking for Rascal’s brother. Detective Smith said, “Remember, we are mad about what happened. If my deputies end up shooting [your brother] ’cause you don’t want to be honest with us, I don’t know whatto tell you.” (Aug. RT 12-13.) Rascal felt he had to talk to the detectives in order to prevent his brother from being shot. (Aug. RT 15.) He talked to them, but he wasnot truthful with them, because they were forcing him to talk against his will. (Aug. RT 29, 53.) * Rascal knows Maria Puente-Porras. She is a lawyer who works for Mr. Hodges. (Aug. RT 8-9.) -9]- ? w n r e y Later, detectives told Rascal Detective Delfin had been injured in the shooting. They showed him a bloody badgeand told him it was Detective Delfin’s badge. Rascal “broke down and started crying.” (Aug. RT 14.) Rascal had known Detective Delfin for a numberofyears. (Aug. RT 15, 51.) Rascal told detectives he had seen Mr. Sandovalshootat the vehicle Detectives Black and Delfin had been in. However, that was a lie. Rascal had not actually seen the shooting. (Aug. RT 49-50, 59.) Overthe course of the next two days, police did not allow Rascal to sleep, and they did not feed him. (Aug. RT 66.) At one point, police made Rascalcall Mr. Sandoval. (Aug. RT 62, 64-66.) On May 2, 2000, police told Rascal that Mr. Sandoval was in custody andthat he had confessed. (Aug. RT 66-67.) They told Rascalto give a recorded statement and to “go along” with Mr. Sandoval’s story. Rascal signed a Miranda form and gavea recorded statement. (Aug. RT 18, 66- 68, 81-82.) In the recorded statement, Rascal untruthfully said he had seen Mr. Sandoval shooting at Detectives Black and Delfin. (Aug. RT 24.) Rascal knew Toro was an E.S.P. member. (Aug. RT 54.) Sometime before the murder of Detective Black, Mr. Sandoval had told Rascal that Toro had shot Mr. Sandoval. (Aug. RT 55-56.) However, on the evening in question, Rascal had not gone with Mr. Sandoval to Lime Avenuein order to shoot up Toro’s -92- house. (Aug. RT 56.) On May2, 2000, detectives told Rascal that police had shothis brother. (Aug. RT 15-16.) b. Maria Puente-Porras Ms. Puente-Porras is an attorney. She works for the Law Office of James Hodges. (Aug. RT 39-40.) In early May of 2000, Rascal’s family hired Mr. Hodgesto represent Rascal. At Mr. Hodges’ request, Ms. Puente-Porras went to the Long BeachPolice Station in order to visit Rascal. (Aug. RT 40-42.) She does not recall the precise date on which she attempted to visit Rascal. (Aug. RT 42.)° Shearrived at the police station at approximately noon. (Aug. RT 41.) She checked in with jail personnel and requested to see Rascal. (Aug. RT 43.) After she waited more than an hour, Detective Dave Jones approachedherandtold her that Rascal was not requesting to speak with counsel. Ms. Puente-Porras told the detective that she represented Rascal and that she wanted to see him. However, the detective told Ms. Puente-Porras that he would not allow herto see Rascal. (Aug. RT 43-45.) Ms. Puente-Porras and the detective exchanged words. Then, * Ms. Puente-Porrastestified that Rascal’s brother, Pipas, was shot on or about May 3, 2000. Ms. Puente-Porras could not recall whether she attempted to visit Rascal before or after Pipas was shot. (Aug. RT 40-43.) Pipas was shot while being arrested. (2 RT 177.) -93- Ms. Puente-Porrasleft the police station. (Aug. RT 45.) Eventually, police allowed Ms. Puente-Porras to see Rascal — either later that evening or the following evening. (Aug. RT 45-46.) C. The Court’s Denial ofRascal’s Motion to Suppress At the conclusion of the hearing on November 16, 2001, the court denied Rascal’s motion to suppress. (Aug. RT 87-91.) In so doing, the court made the following factual findings: Police did not deem Rascal a suspect until May 2, 2000. (Aug. RT 87.) Each of the various statements Rascal madeto police were different. (Aug. RT 87-88.) When police were questioning Rascal, he did not request counsel. (Aug. RT 90-91.) Rascal’s testimony was not credible. (Aug. RT 88.)” 7. Mr. Sandoval’s Original Motion to Quash and Traverse the Warrant On April 26, 2002, Mr. Sandovalfiled a motion to suppress evidence pursuant to Penal Code section 1538.5. (1 CT 97-140.) In the motion, he sought to quash and/or suppress the warrant to search his home, and he requested an °° One reason specified by the court for finding Rascal not credible was the court’s belief “that it is inconceivable” that the experienced detectives involved in Rascal’s interrogation would have “sabotage[d] a case as important as the murder of a police officer” by resorting to the types of conductattributed to them by Rascal. (Aug. RT 90.) -94- evidentiary hearing. (1 CT 97-104.) Specifically, Mr. Sandoval sought to suppressall statements he had madeto police on May 2, 2000, and all evidence recovered pursuant to execution of the search warrant. (1 CT 97.) He contended 1) the affidavit submitted in support of the request for the warrant did not establish probable cause, and 2) the affiant had intentionally and/or recklessly omitted material information from the search warrantaffidavit. (1 CT 97-104.) On September 19, 2002,the trial court conducted a non-evidentiary hearing on the motion. Mr. Sandovalargued that the police had not been candid in their affidavit about Rascal’s role in the shooting: They failed to disclose that they had actually deemed Rascal a suspect from the momentthey arrested him. They must have deemedhim a suspect because they found him hiding at the crime scene, and he had been armed. (3 RT 308, 311.) Further, Mr. Sandoval arguedthat the police deliberately failed to disclose in the affidavit that Rascal was a suspect in connection with two other pending homicide investigations. (3 RT 309-310.)* *’ On September12, 2002, the prosecution file points and authorities in opposition to Mr. Sandoval’s motion. (5 CT 1107-1121.) In briefing filed on September 19, 2002, Mr. Sandovalreplied to the prosecution’s opposition. (1 CT 236.) 8 Mr. Sandovalpresented evidence that Rascal was a suspect in one homicide that occurred in September of 1999, and another that occurred in Novemberof 1999. (3 RT 306-307.) He attached to his moving papers a copy of a police report concerning the November 1999 homicide, in which Rascal was -95- Additionally, Mr. Sandoval argued in his moving papersthat the police failed to disclose to the judge to whom theaffidavit was submitted the fact that they had already obtained, from a different judge, a warrant to search the residence of an alternate suspect. (1 CT 103.) Thetrial court denied Mr. Sandoval’s motion to suppress and denied his request for an evidentiary hearing. (3 RT 306-319; 5 CT 1123.) The court found that 1) the search warrant affidavit established probable cause to search Mr. Sandoval’s home,” and 2) no Franks hearing was necessary because Mr. Sandoval had madean inadequate showingofthe need for such a hearing, but had instead merely sought a hearing based on assumptions as to what would be gleaned at a hearing. (3 RT 317-319.)” listed as the sole suspect. (1 CT 122-131.) ® Thetrial court found probable cause wasestablished by the following circumstances: The statements of Rasal, Detective Delfin, and Jimmy Falconer, which wereset forth in the affidavit,all “dove-tailed with one another.” (3 RT 317.) Information regarding Rascal’s parole status and gangaffiliation was disclosedin the affidavit. (3 RT 318.) The fact that a gun was found during the search of Mr. Sandoval’s residence corroborated Rascal’s credibility. (3 RT 317.) ” With respect to the November 1999 homicide in which Rascal waslisted as a suspect, the investigating agency on that case was the Los Angeles County Sheriff's Department. (1 CT 122.) Although Mr. Sandoval argued that the officers of the Long Beach Police Department who wereinterrogating Rascal had undoubtedly run a record check on Rascal, during which they would have ineluctably learned abouthis status as a suspect in the November 1999 homicide -96- 8. Mr. Sandoval’s Renewed Motion On September26, 2002, Mr. Sandoval filed a supplemental motion to suppress evidence pursuant to Penal Codesection 1538.5. In the supplemental motion, Mr. Sandoval’s trial counsel relied on the evidence adduced at the evidentiary hearing on Rascal’s motion to suppress (1 CT 237-241),” contending that 1) Mr. Sandoval’s arrest and the warrant authorizing the search of his home were the product of involuntary statements made by Rascal (1 CT 239), and 2) material information had been deliberately omitted from the affidavit submitted in support of the request for the warrant to search Mr. Sandoval’s home. (1 CT 239- 241.) With respect to the contention that Rascal’s statements to police had been involuntary, Mr. Sandoval adverted to specific evidence adduced at the hearing on Rascal’s suppression motion: 1) police refusing to honor Rascal’s request for (3 RT 310-311), the court concluded this evidence wasinsufficient to ascribe knowledge of the November 1999 homicide to the Long Beach Police Department. (3 RT 310.) ” Neither Mr. Sandoval norhis trial counsel were present at the evidentiary hearing on Rascal’s suppression motion. (1 CT 237.) Mr. Sandoval’s counsel stated they had not received any notice of the hearing. (3 RT 524.) However, Mr. Sandoval’s lead counsel waspresent in court during proceedings on November13, 2001, that immediately preceded the commencementofthe evidentiary hearing on Rascal’s motion to suppress. (2 RT 122-124.) -97- counsel, and police turning away a lawyer who attemptedto visit Rascal; 2) police accusing Rascal of shooting Detective Black: 3) police subjecting Rascal to a gunshotresiduetest; 4) police threatening to shoot Rascal’s brother unless he identified the person who shot Detective Black; 5) police showing Rascal Detective Delfin’s bloody badge; and 6) police subjecting Rascal to otherwise coercive conditions of confinement. (1 CT 239.) With respect to the contention that material information had been deliberately omitted from the affidavit submitted in support of the request for the warrant to search Mr. Sandoval’s home, Mr. Sandoval’s counsel made a proffer that, after the court’s denial of Mr. Sandoval’s original motion to suppress, they had spoken with a sergeant in the Los Angeles County Sheriff's Department, who had informed them that, eight months before the shooting of Detective Black, the Los Angeles County Sheriff's Department had requested assistance from the Long Beach Police Departmentin seeking to locate Rascal in connection with the aforementioned September 1999 homicide. (1 CT 240-241.) Further, Mr. Sandoval noted that the search warrant affidavit contained no disclosures that 1) Rascal had asked police for a lawyer, 2) police had told him he did not need a lawyer, 3) police turned away Maria Puente-Porras, Esq. when she cametovisit Rascal, 4) police threatened to shoot Rascal’s brother, 5) police displayed -98- Detective Delfin’s bloody badge to Rascalin an effort to get Rascal to implicate Mr. Sandoval, 6) police did not inform Rascal of his Mirandarights until after Rascal implicated Mr. Sandoval, 7) police accused Rascal of shooting Detectives Black and Delfin, and 8) police deprived Rascal of sleep. (3 RT 525-526; 1 CT 239-240.) Finally, Mr. Sandovalreiterated the circumstancethat police had failed to disclose to the issuing magistrate that they had obtained a search warrant from a different judge to search the homeofan alternative suspect. (3 RT 528-529; 1 CT 240.) The court denied the supplemental suppression motion on September26, 2002 — the same dayit wasfiled. (3 RT 527-529; 5 CT 1144.) In denying the motion, the court stated that it had found Rascal’s testimony not credible at the evidentiary hearing on Rascal’s motion to suppress. (3 RT 522-524, 526-527.)” The court also stated that it had found the testimony of attorney Maria Puente- Porras not credible at the hearing on Rascal’s suppression motion. (3 RT 524.) The court stated that “there was no evidencethat [Rascal] had asked for an attorney.” (3 RT 524.) Further, the court asserted that Rascal had not been in ” The court stated: “I don’t agree with Mr. Camacho’sstatements... during the hearing. [{] I find to say that he wasnot credibleis to put it mildly to the court. AsI listened to his statements, it was clear he was out and out lying. There’s no other way to put it. He was not a credible witness. He wasclearly nottelling the truth.” (3 RT 526.) -99- custody when he wasinterrogated. (3.RT 526.) The court also questioned whether Mr. Sandoval had any basis for making a claim based upon violations of Rascal’s constitutional rights. (3 RT 523-524.)” In any event,the court found that the affidavit and search warrant were not “fruit of the poisonoustree...” (3 RT 527.) The court stated that it had already rejected Mr. Sandoval’s contention concerning the nondisclosure to the issuing magistrate of the earlier search warrant, and that it was not willing to reconsiderits rejection of Mr. Sandoval’s contention in that regard. (3 RT 528-529.) Finally, the court found that inclusion in the search warrantaffidavit of the information regarding the Long BeachPolice Department’s role in the investigation of Rascal’s involvement in the September 1999 homicide would not have affected the probable cause evaluation. (3 RT 527.) The court refused Mr. Sandoval’s request for an evidentiary hearing on the supplemental suppression motion. (3 RT 529.) C. Governing Legal Principles Resolution of Mr. Sandoval’s claim that he is entitled to a remandfora full and fair evidentiary hearing requires consideration of legal principles governing ® With respect to this subject, the court cited Jn re Lance W. (1985) 37 Cal.3d 873. (3 RT 523.) In Lance W., this court held the vicarious exclusionary rule was abrogatedbyarticle I, section 28, subdivision (d) of the California Constitution. -100- the procedures employed bytrial courts presented with challenges to the veracity of search warrantaffidavits. Specifically, in this case, the applicable legal principles pertain to 1) the requisites of a full and fair hearing on a Fourth Amendmentclaim, including the circumstances under which a court must hold an evidentiary hearing, and 2) the impropriety of importation ofjudicial fact finding from one proceeding into another. 1. The Requirements ofa Full and Fair Hearing on a Fourth Amendment Claim Whena defendantin a state court prosecution raises a Fourth Amendment challenge, the federal constitution requires the state court to afford the defendant “an opportunity for full and fair litigation” of the claim. (Stone v. Powell (1976) 428 U.S. 465, 494; accord, Kimmelman v. Morrison (1986) 477 U.S. 365, 378,fn. 3,) Consistent with this constitutional mandate, Penal Code section 1538.5, subdivision (c)(1) provides: “Whenevera search or seizure motion is madein the superior court ..., the judge or magistrate shall receive evidence on any issue of fact necessary to determine the motion.” The Supreme Court of the United States has held that the Fourteenth Amendmentrequires state courts to exclude evidenceseized in violation of the Fourth Amendment. (Mapp v. Ohio (1961) 367 U.S. 643.) In order to enforce this -101- holding, a defendant whoasserts his/her Fourth Amendmentrights wereviolated must be afforded a “‘full and fair opportunity to litigate a Fourth Amendmentclaim at trial and on direct review.” (Wallace v. Kato (2007) 549 U.S. 384, 395,fn. 5, italics deleted, internal quotation marks omitted.) “{E]vidence obtained in violation of the Fourth Amendmentcannot be used in a criminal proceeding against the victim ofthe illegal search and seizure.” (United States v. Calandra (1974) 414 U.S. 338, 347.) “This prohibition applies as well to the fruits of the illegally seized evidence.” (/bid.; citing Wong Sunv. United States (1963) 371 U.S. 471.) Whenthe Court established the full and fair hearing requirementin Stone,it “did not specify a test for determining whether a State has provided an opportunity for full and fair litigation of a claim....” (Terrovona v. Kincheloe (9" Cir. 1990) 912 F.2d 1176, 1178.) However, in this regard, the Stone Court did cite Townsend v. Sain (1963) 372 U.S. 293.” (Stone v. Powell, supra, 428 U.S.at p. 494,fn. 36.) In Townsend, which wasa federal habeascase, the Court held a federal ™” A different aspect ofthe Townsend opinion wasoverruled in Keeneyv. Tamayo-Reyes (1992) 504 U.S.1, 5. > Courts and commentators have characterized the Stone Court’s citation to Townsendas cryptic and confusing. (Robbins, Semiotics, Analogical Legal Reasoning, and the Cf. Citation: Getting Our Signals Uncrossed (1999) 48 Duke L.J. 1043, 1059-1062.) The citation was precededby a cf. signal, and lower -102- habeascourt is required to grant a habeaspetitioner an evidentiary hearingif: (1) the merits of the factual dispute were not resolvedin the state hearing; (2) the state factual determinationis not fairly supported by the record as a whole; (3) the fact-finding procedure employed by the state court was not adequate to afford a full and fair hearing; (4) there is a substantial allegation of newly discovered evidence; (5) the material facts were not adequately developed at the state-court hearing; or (6) for any reason it appears that the state trier of fact did not afford the habeas applicanta full and fair fact hearing. (Townsend v. Sain, supra, 372 U.S. at p. 313.) At a minimum,Stone “guarantees the right to present one’s case...” (Cabrera v. Hinsley (7" Cir. 2003) 324 F.3d 527, 532, cert. den. (2003) 540 U.S. 873.) Furthermore, the standard “contemplates recognition andat least colorable application of the correct Fourth Amendmentconstitutional standards.” (Cannon v. Gibson (10" Cir. 2001) 259 F.3d 1253, 1261, internal quotation marks omitted.) There is a lack of consensus amongst the courts and commentatorsas to the significance that ought to be ascribed to the Townsend factors in determining whethera defendant presenting a Fourth Amendment challenge has receiveda full and fair hearing on the claim: /// federal courts have struggled in their efforts “to clarify the significance of the Townsend opinionto Stone.” (Id. at pp. 1060-1061; accord, Brock v. United States (7" Cir. 2009) 573 F.3d 497, 500, cert. den. (2009) 130 S.Ct. 762.) -103- Somesuggest that the Townsendfactors are of pivotal significance. (Terrovona v. Kincheloe, supra, 912 F.2d at p. 1178 [“[A]Ithough the Townsend test ‘must be given great weight in defining what constitutes full and fair consideration under Stone,’ it neednot ‘always be appliedliterally ... as the sole measureoffullness and fairness.’”]; quoting Mack v. Cupp (9" Cir. 1977) 564 F.2d 898, 901.) Others suggest the Townsendfactors are oflimited, if any, relevance. (Turentine v. Miller (7" Cir. 1996) 80 F.3d 222, 224, fn. 1 [“Stone did not necessarily intend to incorporate the full extent of the Townsend Court’s definition of full and fair hearing”]; citing Palmigiano v. Houle (1* Cir. 1980) 618 F.2d 877, 881, cert. den. (1980) 449 U.S. 901; Halpern, Federal Habeas Corpus and the Mapp Exclusionary Rule After Stone v. Powell (1982) 82 Colum.L.Rev. 1, 15 (“The Townsend standards assumethat a state evidentiary hearing was held. Consequently, they are irrelevant to the issue of whetherthe petitioner received a sufficient opportunity to obtain a hearing when none washeld.”|, footnotes omitted.) A numberof courts have found defendants were denied full and fair consideration of their Fourth Amendmentclaims. (Herrera v. Lemaster (10"Cir. 2000) 225 F.3d 1176, 1178 [no full and fair consideration of claim wherestate -104- supremecourt failed to apply the Chapman”standard in assessing the prejudicial effect of a violation of the defendant’s Fourth Amendmentrights]; United States ex rel. Bostick v. Peters (7" Cir. 1993) 3 F.3d 1023, 1026-1029 [no full and fair consideration of Fourth Amendmentclaim wheretrial court’s ruling effectively prohibited evidentiary hearing]; Agee v. White (11" Cir. 1987) 809 F.2d 1487, 1490 [refusal to hold evidentiary hearing and lack of appellate consideration of claim on direct review resulted in absence of full and fair consideration of claim]; Doescherv. Estelle (5" Cir. 1980) 616 F.2d 205, 207 [remandfor full and fair hearing where“state trial court did not fully adjudicate ... claim that ... [search warrant] affidavit ... contained false statements’’].) Outside the federal habeas context, numerous courts haveeffectively held that defendants were denied full and fair hearings whentheir requests for Franks evidentiary hearings were denied. (United States v. Harris (7" Cir. 2006) 464 F.3d 733 [remand for Franks hearing wheretrial court erroneously failed to conduct such a hearing]; United States v. Johns (9" Cir. 1988) 851 F.2d 1131, 1133-1134 (per curiam) [same]; United States v. Chesher (9" Cir. 1982) 678 F.2d 1353, 1360-1364 [same]; United States v. Davis (9" Cir. 1981) 663 F.2d 824, 829- 831 [remand for Franks hearing where affiant omitted disclosure that informant © Chapmanv. California (1967) 386 U.S. 18. -105- wasinterviewed byan officer other than the affiant].) Regardless of the lack of uniformity amongst the courts and commentators as to the precise scope ofthe full and fair hearing requirementestablished by Stone, there is no disagreement asto certain baseline prerequisites for the fair litigation of Fourth Amendmentclaims, including Franks claims. With respect to such a claim in which the defendant contends police submitted a willfully or recklessly misleading affidavit in support of a request for a search warrant, “the Fourth and Fourteenth Amendments entitle a defendant to a veracity hearing if he makesa substantial preliminary showing that an affiant knowingly and intentionally, or with reckless disregard for the truth, included in a warrant affidavit a false statement necessary to the finding of probable cause.” (Colorado v. Nunez (1984) 465 U.S. 324, 326-327 (conc. opn. of White, J.).) For purposes of makingthe substantial preliminary showing necessary to warrant a Franks hearing, “[c]lear proof is not required — forit is at the evidentiary hearing itself that the defendant, aided by live testimony and cross-examination, must prove actual recklessness or deliberate falsity.” (United States v. Chesher, supra, 678 F.2d at p. 1353; citing Franks v. Delaware, supra, 438 U.S.at p. 171.) To mandate an evidentiary hearing, the challenger’s attack must be more than conclusory and mustbe supported by more than a meredesire to cross-examine. There must be allegations of deliberate -106- falsehood or of reckless disregard for the truth, and those allegations must be accompanied byan offer ofproof. They should point out specifically the portion of the warrant affidavit that is claimed to be false; and they should be accompanied by a statement of supporting reasons. (Franks v. Delaware, supra, 438 U.S. at p. 171; People v. Bradford (1997) 15 Cal.4th 1229, 1297, cert. den. sub nom. Bradford v. California (1998) 523 U.S. 1118.) [I]f the defendant makes a prima facie showing that a material fact was omitted knowingly orintelligently by the affiant, he or she may request a hearing on the matter. If the defendant proveshis or her claim, the omitted statement will be added to the affidavit and the facts will be retested for probable cause. (People v. Meyer (1986) 183 Cal.App.3d 1150, 1161.)” The samestandard applies with respect to omissionsthat renderan affidavit " misleading. (People v. Goldberg (1984) 161 Cal.App.3d 170, 186.) A defendant is entitled to an evidentiary hearing pursuant to Franks if he proffers evidence that the search warrantaffidavit in question “may contain deliberately misleading statements and materials omissions, or statements and omissions madein reckless ” ‘There is “an important difference between the ‘necessary’ inquiries when the challenge is to the omission of an allegedly material fact rather than to the inclusion of an allegedly false material statement. With an omission, the inquiry is whetherits inclusion in an affidavit would haveled to a negative finding by the magistrate on probable cause. Ifa false statement is in the affidavit, the inquiry is whetherits inclusion was necessary for a positive finding by the magistrate on probable cause.” (United States v. Castillo (1* Cir. 2002) 287 F.3d 21, 25, fn. 4.) -107- disregard for the truth.” (United States v. Westover (D. Vt. 1993) 812 F.Supp. 38, 40.) “When material information has been intentionally omitted from a warrant affidavit, the proper remedyis to restore the omitted information and reevaluate the affidavit for probable cause.” (People v. Sousa (1993) 18 Cal.App.4th 549, 562-563; citing Franks v. Delaware, supra, 438 U.S.at pp. 155-156; People v. | Maestas (1988) 204 Cal.App.3d 1208, 1216.) Even “[{a] deliberate or reckless omission by a governmentofficial whois not the affiant can be the basis for a Franks suppression.” (United Statesv. DeLeon (9" Cir. 1992) 979 F.2d 761, 764.) This is so, because “[t]he Fourth Amendmentplacesrestrictions and qualifications on the actions of the government generally, not merely on affiants.” (/bid.) Thus, “the validity of the search is not saved if the governmental officer swearing to the affidavit has incorporated an intentional or reckless falsehood told to him by another governmental agent.” (United States v. Whitley (7" Cir. 2001) 249 F.3d 614, 621; United States v. Kunen (E.D.N.Y. 2004) 323 F.Supp.2d 390, 395, fn.4 [“It is well established that the police cannotinsulate a deliberate or reckless falsehood byone... officer[] from a Franks inquiry by relaying the information through another memberofthe force whois unawareofthe falsehood andservesasthe affiant’’].) /// -108- “Becauseit is the magistrate who must determine independently whether there is probable cause, it would be an unthinkable imposition uponhis authority if a warrantaffidavit, revealed after the fact to contain a deliberately or recklessly false statement, were to stand beyond impeachment.” (Franks v. Delaware, supra, 438 U.S.at p. 165.) 2. The Prohibition Against Reliance on Extrajudicial Factfinding “A litigant should not be boundby the court’s inclusion in a court order of an assertion offact that suchlitigant has not had the opportunity to contest or dispute.” (Sosinsky v. Grant (1992) 6 Cal.App.4th 1548, 1568,italics in the original.) “[N]either a finding of fact made after a contested adversary hearing nor a finding of fact made after any other type of hearing can be indisputably deemed to have been a correct finding.” (/bid.) A trial court mayin certain circumstances take judicial notice of findings in an earlier judicial proceeding, but it can ““‘credit’ them — 1.e., accord them preclusive effect in [the current] proceeding — only if the elements of collateral estoppel were satisfied.” (Plumley v. Mockett (2008) 164 Cal.App.4th 1031, 1051, italics added.) Thus,“[w]hile ... a judge, after hearing a factual dispute between litigants A and B, may chooseto believe A, and make a finding of fact in A’s favor” a judge cannot, in a subsequentjudicial proceeding,treat the earlier findings of fact as necessarily “true facts.” (Solinsky, -109- supra, 6 Cal.App.4th at p. 1565.) “(J}udicial findings of fact in a court’s order in a previous case are not admissible in anothercase....” (United States v. Jones (11" Cir. 1994) 29 F.3d 1549, 1554.) “As a general rule, a court may not take judicial notice of proceedings or recordsin another causeso as to supply, without formal introduction of evidence, facts essential to support a contention in a cause then before it.” (M/VAmerican Queen v. San Diego Marine Constr. Corp. (9"Cir. 1983) 708 F.2d 1483, 1491.) “[T]he use of facts as found in a judicial opinion can unfairly prejudice a party.” (United States v. Sine (9" Cir. 2007) 493 F.3d 1021, 1034.) “It is even more plain that the introduction of discrete judicial factfindings and analysis underlying the judgmentto provethe truth of those findings andthat analysis constitutes the use of hearsay.” (/d., at p. 1036; Herrick v. Garvey (10" Cir. 2002) 298 F.3d 1184, 1191 [“an out-of-court written statement by a judge now offered to prove the truth of the matter asserted” is hearsay].) “[A]t common law a judgment from another case would not be admitted.” (Nipper v. Snipes (4" Cir. 1993) 7 F.3d 415, 417.) “[A] judgmentin anothercase finding a fact now in issue is ordinarily not admissible.” (Harmer v. State (1937) 133 Neb. 652, 654 /// /// -110- [276 N.W. 378, 380].)” D. Analysis Mr. Sandovaldid not receive a full and fair hearing on the subject of whetherpolice submitted a willfully or recklessly misleading affidavit to Judge Ferrari. First, the trial court erroneously failed to conduct an evidentiary hearing to resolve facts disputed in Mr. Sandoval’s original moving papers and the supplemental briefing he submitted after receiving new evidence. Second,in denying the supplemental motion to suppress, the trial court improperly relied on extrajudicial fact finding. I. Erroneous Denial ofEvidentiary Hearing In support of his original Franks motion, Mr. Sandovalalleged that the police had failed to disclose the following material information in the search warrantaffidavit: a) Police originally suspected a memberofthe Crips gang had shot Detective Black, and they had already obtained, from a different judge, a warrant to search the homeofthat Crips member— a homethat waslocated on the same street on which Detective Black had been shot. b) From the beginning of the investigation, police deemed Rascal a suspect, and not a mere witness, because 8 “TA|llowing courts to rely on the factual findings from previous cases would renderthe doctrine of res judicata virtually superfluous.” (MVMInc.v. Rodriguez (D.P.R. 2008) 568 F.Supp.2d 158, 164.) -111- he had been found hiding at the scene, and he had been armed. c) Rascal was a suspect in two other pending homicide investigations. d) Rascal was a memberof B.P. (3 RT 308-311; CT 102-103.) As noted above, the trial court concluded these allegations did not merit an evidentiary hearing and summarily denied the motion. (3 RT 306-319; 5 CT 1123.) In his supplemental motion to suppress, Mr. Sandoval presented further allegations regarding nondisclosures: The police failed to disclose the circumstances that rendered Rascal’s statements to them involuntary, and they failed to disclose the fact that officers of the Long Beach Police Department had received information from officers of the Los Angeles County Sheriff's Department regarding Rascal’s involvementin a 1999 homicide. (3 RT 527; 1 CT 240-241.) Thetrial court concluded these supplemental allegations did not merit an evidentiary hearing, and denied the supplemental motion. (3 RT 529.) The foregoing information was sufficient to warrant a Franks hearing. Without the information the police had received from Rascal, the police would have had no probable cause for a warrant to search Mr. Sandoval’s home. Rascal wasthe only person who providedinformation placing Mr. Sandovalat the scene of the shooting. No other witnesses provided information that Mr. Sandoval was there. Accordingly, if the information provided by Rascal had been provided -112- undercircumstancesthat rendered his statements involuntary and unreliable, probable cause was lacking. (Franks v. Delaware, supra, 438 U.S.at pp. 164- 165.) Per Rascal’s sworn testimonyat the evidentiary hearing on his motion to suppress, the information he gaveto police was inaccurate. It was extracted from him undercircumstances that rendered it unreliable and involuntary. Rascal testified that the police refused to honorhis request for counsel (2 RT 182-186; Aug. RT 6-9), that they accused him ofkilling Detective Black (Aug. RT 10), that he was underthe influence of drugs (Aug. RT 10-11), and that police threatened to shoot his brother. (Aug. RT 12-15.) He ultimately just told them what he thought they wanted to hear. (Aug. RT 18, 29, 53, 66-68, 81-82.) Rascal’s testimony in this regard entitled Mr. Sandoval to a Franks hearing. In support of his request for a Franks hearing, Mr. Sandovalrelied on this testimonyfor his preliminary showingthat the police had failed to disclose in their affidavit the relevant circumstances that rendered the information imparted to them by Rascal unreliable and involuntary. (3 RT 525-526; | CT 239-241.) Becausethere is no probable cause without the information imparted by Rascal, and because Rascal’s testimony madeout a primafacie case that police had willfully omitted neutral information from the search warrant affidavit, the trial -113- court erred by refusing to conduct a Franks hearing. Because no evidentiary hearing was conducted, Mr. Sandoval did not receive full and fair consideration of his Fourth Amendment claim. (Pen. Code, § 1538.5, subd. (c)(1); Stone v. Powell, supra, 428 US.at p. 494.) 2. Improper Adoption ofExtrajudicial Fact Finding In denying Mr. Sandoval’s supplemental motion to suppress, the trial court improperly relied on the factual findings it made during the evidentiary hearing on Rascal’s motion to suppress. Specifically, the court relied on its determinationsat the hearing on Rascal’s motion that neither Rascal nor Maria Puente-Porras, Esq. hadtestified credibly. (3 RT 524-527; Aug. RT 88-90.)” These credibility determinations undercut the contentions in Mr. Sandoval’s motion that police had extracted involuntary statements from Rascal, and that they had intentionally or recklessly neglected to disclose in their search warrant affidavit the circumstances that rendered Rascal’s statements to them involuntary. (3 RT 524-526; 1 CT 239- 240.)*° Mr. Sandoval should not have been boundbycritical credibility ” Whenthe court denied Rascal’s motion,it did not state that it had found Ms. Puente-Porras’ testimony not credible. (Aug. RT 87-91.) However, in denying Mr. Sandoval’s motion, the court stated it had found her testimony not credible at the hearing on Rascal’s motion. (3 RT 524.) *° A criminal defendanthas a limited right to contest the voluntariness of statements madeto police by a third person. Such a statement may only be -114- determinations madeby the court in a hearing to which he had notbeen a party. (Plumley v. Mockett, supra, 164 Cal.App.4th at p. 1051; Sosinsky v. Grant, supra, 6 Cal.App.4th at p. 1568.) Thetrial court should not haverelied onits “extrajudicial” fact finding in lieu of independent fact finding in Mr. Sandoval’s case, with an opportunity afforded to Mr. Sandovalto participate in the adversary fact finding process. (United States v. Sine, supra, 493 F.3d at pp. 1034-1036; United States v. Jones, supra, 29 F.3d at p. 1554; Harmer v. State, supra, 276 N.W.at p. 380.) By improperly relying on this extrajudicial fact finding to deny challenged if it was obtained under circumstances rendering it so unreliable that its admission would violate the defendant’s due process rights. This court has held that the right to exclude such statementsis solely a trial right. (People v. Badgett (1995) 10 Cal.4th 330, 342-352.) Other courts have given more expansive treatmentto the right. (Clanton v. Cooper (10" Cir. 1997) 129 F.3d 1147, 1157-1158. [when “evidenceis unreliable and its use offends the Constitution, a person may challenge the government’s use against him or herof a coerced confession given by another person’’]; LaFrance v. Bohlinger (1° Cir. 1974) 449 F.2d 29, 35 [“the concept of due process... protects the accused against pretrial illegality by denying the governmentthe fruits of its exploitation of any deliberate and unnecessary lawlessness”]; see also Lisenba v. California (1941) 314 U.S. 219, 236 [The aim of the requirement of due processis not to exclude presumptively false evidence, but to prevent fundamental unfairnessin the use of evidence whethertrueorfalse.”’].) Regardless of whether Mr. Sandoval had anybasis for directly seeking exclusion of evidence derived from any involuntary statements made by Rascal, Mr. Sandovalwasentitled to pursue his Franks claim onthe basis of intentional or reckless police nondisclosure of the circumstances rendering Rascal’s statements involuntary. (State v. Bouffanie (La. 1978) 364 So.2d 971 [Franks hearing was properly held where defendant made substantial showing that confessionsofthird persons, relied upon to support a search warrantaffidavit, were involuntary].) -115- Mr. Sandoval’s motion without an evidentiary hearing in which Mr. Sandvoal was allowed to participate, the court failed to afford Mr. Sandoval full and fair hearing. (Stone v. Powell, supra, 428 U.S.at p. 494.) E. Remedy Whenit is determined on appeal that a Fourth Amendmentclaim has not been adequately andfully litigated, the reviewing court may remandthe matter to the trial court for a new hearing. (People v. Bowers (2004) 117 Cal.App.4th 1261, 1273.) “The court ‘may, if proper, remand the cause to the trial court for such 999further proceedings as may be just under the circumstances.’” (People v. Cazalda (2004) 120 Cal.App.4th 858, 865-866; quoting Penal Code section 1260.) Because Mr. Sandoval wasnot afforded a full and fair hearing, he is entitled to have his case remandedto thetrial court for an evidentiary hearing on his Franks motion. I. THE PROCESS OF SELECTING “DEATH QUALIFIED” JURORS IS UNCONSTITUTIONAL. The death qualification process pursuant to whichthetrial court excluded prospective jurors in this case violated Mr. Sandoval’s constitutional rights.*’ *| This court has held that the process ofjuror “death qualification” — i.e., the process ofremoving from the venire, in capital case jury selection,all -116- Theprocess violated his jury trial right,®’ his right to due process,”his right to prospective jurors whose viewsregarding the death penalty would prevent them from imposing the death penalty or substantially impair their capacity to do so — is not unconstitutional. (People v. Mills (2010) 48 Cal.4th 158, 170-172; People v. Ashmus (1991) 54 Cal.3d 932, 956-957 [“The exclusion through ‘California death qualification’ of ‘guilt phase includables’ does not offend the Sixth Amendmentor article I, section 16 [of the California Constitution], as to the guaranty oftrial by a jury drawn from fair cross-section of the community.”], cert. den. sub nom. Ashumsv. California (1992) 506 U.S. 841.) Similarly, the Supreme Court of the United States has held that the death qualification process is not unconstitutional. (Lockhart v. McCree (1986) 476 U.S. 162, 176-177.) Nevertheless, because the death penalty jurisprudenceofthe courtsin this nation is not static but evolving (Steiker, Commentary: Things Fall Apart, But the Center Holds: The Supreme Court and the Death Penalty (2002) 77 N.Y.U. L. Rev. 1475, 1490 [noting “recent changesin the Court’s death penalty jurisprudence”]; Bienen, Criminal Law: The Proportionality Review ofCapital Cases by the State High Courts After Gregg: Only “The Appearance ofJustice”? (1996) 87 J. Crim. L. & Criminology 130, 132 [noting “tremendous changesin the jurisprudence and politics of capital punishmentnationally”]), Mr. Sandoval respectfully presents this claim that application of the death qualification process during jury selection in his case was unconstitutional. ® Article III, section 2, clause 3 of the United States Constitution provides for the rightto trial by jury in all criminal trials. The Sixth Amendmentto the United States Constitution provides,in pertinent part: “In all criminal prosecutions, the accused shall enjoy the right to a speedy and publictrial by an impartial jury of the State and district wherein the crime shall have been committed....” Article I, section 16 of the California Constitution provides, in pertinent part: “Trial by jury is an inviolate right and shall be securedto all.... [J] In criminal actions in which a felonyis charged,the jury shall consist of 12 persons.” 8 The Fifth Amendmentto the United States Constitution provides that “{nJo person shall ... be deprived oflife, liberty, or property, without due process oflaw....” The Fourteenth Amendmentto the United States Constitution provides that “[n]o State shall ... deprive any personoflife, liberty, or property, without due -117- equal protection,” andit inhibited the exercise ofhis right to be free from cruel and/or unusual punishment.” The selection process employed by the court resulted in impanelmentofa jury biasedin favor of conviction and imposition of the death penalty. It resulted in impanelmentofajury that was not impartial and that was not suited to serve the role the framers of the Constitution intended juries to fulfil. It resulted in the exclusion of impartial members ofthe venire. It was arbitrary. And, it was carried out in a mannerthat prevents application of constitutional safeguards against cruel and/or unusual punishment. A. Standard ofReview Appellate courts independently review purely constitutional questions. (Ward v. Illinois (1977) 431 U.S. 767, 768; People v. Holloway (2004) 33 Cal.4th process of law.” Article I, section | of the California Constitution providesthat the right to “defend[] life and liberty” is an “inalienable right[].” Article I, sections 7 and 15 of the California Constitution provide that no person may be deprivedoflife or liberty without due processof law. * The Fourteenth Amendmentto the United States Constitution provides that “[n]o State shall ... deny to any person withinits jurisdiction the equal protection of the laws.” Article I, section 7 of the California Constitution establishes a coextensive safeguard. ** The Eighth Amendmentto the United States Constitution prohibits the infliction of “cruel and unusual” punishment. (Italics added.) Article I, section 17 of the California Constitution provides: “Cruel or unusual punishment may not be inflicted....” (Italics added.) -118- 96, 120, cert. den. sub nom. Holloway v. California (2005) 543 U.S. 1156.) B. Background Jury selection in Mr. Sandoval’s original trial proceeded in the following manner: Overthe course of eight days, six groups of prospective jurors came to court at separate times. (3 RT 326, 371, 439, 514; 4 RT 679; 5 RT 986; 5 CT 1137- 1139, 1141-1144, 1150-1154.)*° Thetrial court made introductory remarksto each of the six groups regarding the general nature of the case and the expected duration of the trial. (3 RT 326-332, 371-378, 440-442, 445-449, 514; 4 RT 679- 687; 5 RT 987-993.)*” The court read the indictmentto twoofthe six groups of panelists. (3 RT 332-336, 442-445.) 8° Each of the groups consisted ofbetween 60 and 80 prospective jurors. (1 Supp. I CT 41-55.) 8’ During its introductory remarksto the fifth panel of prospective jurors, the trial court stated: “Because the death penalty is a likely or possible verdict in this case, we needto find out your views... about the death penalty....” Thereupon, defense counsel requested permission to approach the bench. At sidebar, defense counsel remarked: “Likely or possible verdict. If we could clean that up.” Thetrial court agreed. Back before the prospective jurors stated: “In a case where oneofthe allegationsis first degree premeditated murder, and special circumstancesare alleged, there are only two possible verdicts. One is the death penalty and oneislife without the possibility of parole.” The court then explained that there is no penalty phaseif the jury does not “come back with a finding offirst degree premeditated murder.” (4 RT 681.) -119- w a Prospective jurors who did not seek to be excused due to hardship were given a 37-page juror questionnaireto fill out. (3 RT 336-338, 378-379, 450; 4 RT 687-688; 5 RT 993; 3 Supp. I CT 648-678.)*8 Those who sought to avoid service due to hardship filled out brief hardship questionnaires and/or orally explained their hardship claims to the court. Numerous prospective jurors were excused based upon hardship. (3 RT 336-366, 378-379, 385-437, 450-485, 515 522; 4 RT 687-688, 729-737; 5 RT 993, 994-998; 1 Supp. I CT 3-4A.)® After the court had entertained a considerable numberofhardship claims, and after the attorneys had reviewed a substantial number of completed juror questionnaires, the court began the process of death qualification. (4 RT 605- 610.) During this phase ofjury selection, the court and the attorneys questioned prospective jurors whose answers on the juror questionnaires did not result in stipulations to excuse them. The court and the attorneys questioned these prospective jurors individually regarding their views concerning the death penalty for the purpose of ascertaining whether their views would substantially impair 8 All prospective jurors who did not claim hardshipfilled out the questionnaire. A copyofthe first executed questionnaire included in the appellate record is at pages 642-678 of volume3 ofthe first supplemental clerk’s transcript. *® A blank copy of the hardship questionnaire is contained in the record. (1 Supp. I CT 3-4A.) -120- their capacity to consider imposition of either the death penalty or imprisonment for life without parole. (4 RT 535-603, 610-673, 688-728, 738-850; 5 RT 911- 984, 998-1005.) During the death qualification phase,the trial court applied a standard pursuant to which it removedall prospective jurors who did not unequivocally indicate that they could consider imposing the death penalty. (4 RT 814.) Then, after much of the death qualification process was completed, but before all prospective jurors were death qualified, the court and the attorneys asked general voir dire questions to groups of prospective jurors. (5 RT 853-890, 894-908, 1006-1011.) Individual death qualification of other prospective jurors proceeded ahead during intervals between sessions of general voir dire. (5 RT 911-984, 998-1005.) Finally, the attorneys exercised peremptory challenges. (5 RT 902, 908, 1011-1044.) After a twelve-person jury was sworn,jury selection continued with respect to alternate jurors. (5 RT 1044-1057.) Four alternates were selected and sworn. (5 RT 1057-1058.) /// /// /// -121- C. Constitutional Principles Impacted By the Death Qualification Process “(T]he process of obtaining a ‘death qualified jury’ is really a procedure that has the purposeandeffect of obtaining a jury that is biased in favor of conviction.” (Baze v. Rees (2008) 553 U.S. 35, 84 (opn. of Stevens, J., concurring in the judgment).) Millions ofAmericans oppose the death penalty. A cross section of virtually every community in the country includescitizens whofirmly believe the death penalty is unjust but who nevertheless are qualified to serve as jurors in capital cases. An individual’s opinionthat a life sentence without the possibility of parole is the severest sentence that should be imposedin all but the most heinous cases does not even arguably “‘prevent or substantially impair the performanceofhis duties as a juror in accordance with his instructions and his oath.’” (Uttecht v. Brown (2007) 551 U.S. 1, 35 (dis. opn. of Stevens, J.); quoting Wainwright v. Witt (1985) 469 U.S. 412, 420.) /// 1. The Sixth Amendment At the time of the founding, citizen-jurors who believed the death penalty to be unconstitutional in any particular case or context would not have been subject to a “for cause” challenge on the basis of partiality, for the accused’s right to an “impartial jury” was simply a tool to eliminate relational bias and personalinterest from the criminal adjudication process. A citizen’s view on the constitutionality of a particular law did not constitute a personal -122- interest, but instead marked an important componentof society’s deliberative process. (Cohen & Smith, The Death ofDeath-Qualification (2008) 59 Case W.Res. 87, 88-89.) Modern ‘death-qualification’ jurisprudence frustrates the Framers’ understandingasto the role of the criminal jury. Whereas the jury envisioned by the Framers had the powerto rule on the constitutionality of the death penalty — throughthe force of any ruling applied only to the particular case on which they sat — a prospective juror today cannot evensit on a capital jury unless she promisesthat she would be able and willing to impose a sentence of death. [§] The practical effect of “death-qualification” is to expose the capitally accused to increased oddsofreceiving the death penalty, and to eliminate the voices of citizens who would opt to “check” the government’s decisionto inflict this penalty. [{]] Worse, perhaps,is that as judges and justices attempt to determine how much opposition to the death penalty warrants a challenge for cause during voirdire, the discretion left to individual judgesresults in widely different determinations. Ud. at p. 89, fns. omitted.) The Framers viewed the jury as a bicameral branchofthe judiciary. Juries enabled the people to review the actions of the executive in enforcing the law, the judiciary in applying the law, and the legislature in establishing it. Juries were not more powerful than judges, prosecutors, or the legislature, but they had the authority to veto or abridge the acts of the respective branches of government. (Id. at pp. 113-114, fn. omitted.)” *” The Supreme Court of the United States has recently confirmed that the Framers intended criminaljuries to have the powerto give voice to the people in matters before the Judiciary. (Blakely v. Washington (2004) 542 U.S. 296, 306 -123- “That the Sixth Amendment mightinterfere with the government’s effort to impose a death sentenceis inconvenient, but the historical basis for the Amendmentwasto interpose the citizens between the State and the accused for just that purpose.” (/d. at p. 113, fn. omitted.) Alexander Hamilton’s viewson the great protection of the jury trial right were informed by his appearanceas... counselin the libel case of Harry Croswell, who — the prosecution argued — hadlibeled ThomasJefferson by claiming Jefferson had paid Thompson Callenderfor calling George Washington “a traitor, a robber, and a perjurer” and for calling John Adams,“a hoary-headed incendiary.” Hamilton defended Croswell by arguing that juries have the powerto determine the law, and that jurors have the duty to follow their convictions. (Id. at pp. 114-115, fns. omitted.)”! [“Just as suffrage ensures the people’s ultimate control in the legislative and executive branches,jury trial is meant to ensure their control in the judiciary.”’].) ! In People v. Croswell (1804 N.Y. Sup. Ct.) 3 Johns. Cas. 337, Hamilton argued: “All the cases agree that the jury have the powerto decide the law as well as the fact; and if the law gives them the power,it gives them therightalso. Powerandright are convertible terms, when the law authorizes the doing of an act whichshall be final, and for the doing ofwhich the agentis not responsible... It is admitted to be the duty of the court to direct the jury as to the law,andit is advisable for the jury, in most cases, to receive the law from the court; andinall cases, they ought to pay respectful attention to the opinion of the court. But, it is also their duty to exercise their judgments uponthe law,as well as the fact; and if they havea clear conviction that the law is different from whatit is stated to be by the court, the jury are bound, in such cases, by the superior obligations of conscience, to follow their own convictions. It is essential to the security of personal rights and public liberty, that the jury should have and exercise the power to judge both of the law and ofthe criminal intent.” (/d. at pp. 345-346.) -124- 2. The Constitutional Safeguards Against Cruel And/Or Unusual Punishment The process of death-qualification inhibits enforcement of the Eighth Amendment’s Cruel and Unusual Punishment Clause: The scope ofthat clauseis measured by “evolving standards of decency that mark the progress of a maturing society.” (Trop v. Dulles (1958) 356 U.S. 86, 101 (plur. opn. of Warren,C.J.); accord, Roper v. Simmons (2005) 543 U.S. 551, 561.) That measure cannot be accurate in a process from which a substantial segment of society is excluded. Death-qualification eliminates from juries those citizens who would find a death sentence to be cruel and unusualeither generally or in a particular context. Asa result, when appellate courts review the frequency with which juries impose a death sentence for a certain class of capital crimes, that measure is necessarily an inaccurate thermometer for determining how mucha society haschilled to the idea of executing certain classes of offenders. Death-qualification thus restricts the ability of the people to “check” the powerofthe judiciary by finding — albeit on a micro-scale — that the punishment of death is cruel and unusualin a particular case for a particular crime. (Cohen & Smith, The Death ofDeath-Qualification, supra, 59 Case W.Res.at pp. 120-121, fns. omitted.) “If courts are to respect the Framers’ intentions with regard to the people serving as a ‘check’to the judiciary, then surely the people themselves havea co- extensive right to bring to bear their own independent judgmentin individual -125- cases wherethe constitutionality ofthe ultimate punishment is — and must always be — in issue.” (/d. at p. 121.) “However, as long as the death-qualification of jurors remainsthe law ofthe land, the people’s judgment, as well as the Framers’ vision of a powerful jury serving as a check onthe judicial branch, will be discarded.” (/bid.) 3. Due Process The Due Process Clause of the Fourteenth Amendment “guarantees the fundamental elements offairness in a criminaltrial.” (Spencer v. Texas (1967) 385 U.S. 554, 563.) The individual liberty interests protected by the Due Process Clause are largely enforced by observing the basic procedural safeguards contained in the Bill of Rights. (Joint Anti-Fascist Refugee Committee v. McGrath (1951) 341 U.S. 123, 164 (conc. opn. of Frankfurter, J.).) The Supreme Court of the United States has “emphasized time and again that ‘the touchstone of due processis protection of the individual against arbitrary action of government....’” (County ofSacramento v. Lewis (1998) 523 U.S. 833, 845; quoting Wolffv. McDonnell (1974) 418 U.S. 539, 558.) The procedures by whichjuries are selected must comport with the essential fairness required by the Due Process Clause of the Fourteenth Amendment. (Morgany. Illinois (1992) 504 U.S. 719, 730-731.) -126- The death qualification process is fundamentally unfair. It results in the 999impanelmentof“a tribunal ‘organized to convict.’” (Witherspoonv. Illinois (1968) 391 U.S. 510, 521; quoting Fay v. New York (1947) 332 U.S. 261, 294; Baze v. Rees, supra, 553 U.S.at p. 84 (opn. of Stevens, J., concurring in the judgment); Cohen & Smith, The Death ofDeath-Qualification, supra, 59 Case W. Res.at p. 89.) This fundamental unfairness violates due process. 4. Equal Protection “The Equal Protection Clause of the Fourteenth Amendmentprohibits a state from convicting any person by use of a jury whichis not impartially drawn from a cross-section of the community. That meansthat juries must be chosen without systematic and intentional exclusion of any otherwise qualified group of individuals.” (Fay v. New York, supra, 332 U.S.at pp. 296-297 (dis. opn. of Murphy,J.); citing Smith v. Texas (1940) 311 U.S. 128.) “Only in that way can the democratic traditions of the jury system be preserved.” (/d. at p. 297; citing Glasser v. United States (1942) 315 U.S. 60, 85.) Asdiscussed above, the death qualification process results in the exclusion from capital juries of prospective jurors whose views are deemed bythetrial court to substantially interfere with their ability to consider imposition of the death penalty. Such individuals are otherwise qualified to serve. Accordingly, their -127- exclusion violates equal protection. D. Cognizability ofthis Issue on Appeal Counsel for Mr. Sandovalin the trial court did not challenge the constitutionality of the death qualification process. Nevertheless, Mr. Sandovalis entitled to present this constitutional challenge on appeal. A defendant’s failure to object to a ruling or procedurein the trial court does notresult in a forfeiture of the defendant’s right to pursue the issue on appeal if interposing an objection in the trial court would have been futile. (People v. Boyette (2002) 29 Cal.4th 381, 432.) It is futile for a litigant to object to a procedurein thetrial court that the trial court is bound to follow under the principle of stare decisis. (AT. v. Superior Court (2009) 178 Cal.App.4th 1170, 1177; citing Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) Asnoted in footnote 81, ante, this court has rejected constitutional challenges to the death qualification process. Becausethetrial court would have been bound by this court’s rulings, it would have been futile for defense counsel to have raised the issuein thetrial court. Furthermore, Mr. Sandoval’s counsel did raise certain challenges to the jury selection procedures employedbythetrial court: During jury selection in the original trial, counsel for Mr. Sandoval contended each prospective juror should -128- be individually questioned during the death qualification process. (4 RT 600.) During jury selection in the penalty-phase retrial, counsel for Mr. Sandoval interposed the following objection: Your Honor, could I put something on the record? I wanted to make a motion to dismiss for one reason, for due process. The court read all the questionnaires and we havestipulated. [{]] There have been a lot of people this time around whosaid they just couldn’t imposethe death penalty, and I think it’s around between a quarter and a third of the people are actually saying they just can’t impose or they have a problem imposing, and it seems to me [that at] some point, when the support hasfallen so low with the public,it just seems a violation of due process to subject Mr. Sandovalto the death penalty when such a significant portion of Long Beachjurorsarerejecting it. [{]] So for that reason, we make a motionto dismiss the penalty phase. (16 RT 3073.) The court overruled the objection, stating that counsel’s argument wasnot “an appropriate due process argument”and that counsel wasraising an issue “for the legislature[,] not for the courts.” (16 RT 3073.) In light of the foregoing, Mr. Sandovalis entitled to appellate consideration of this constitutional challenge to the death qualification process. /// /// /// -129- Il. IN VIOLATION OF PENAL CODE SECTION 1093, THE TRIAL COURT FAILED TO READ THE INDICTMENT TO THE JURY, AND FAILED TO INFORM THE JURY OF MR. SANDOVAL’S PLEA OF NOT GUILTY TO THE CHARGESIN THE INDICTMENT. In Penal Codesection 1093, the California legislature has specified the order of proceedingsin jury trials. Pursuantto this statute, the first order of business, following impanelmentand swearingofthe jury, is for the clerk to read the accusatory pleading to the jury and to inform the jury of the defendant’s plea to the charges in the accusatory pleading. (Pen. Code, § 1093, subd. (a).) At the outset of the guilt phase in the instantcase, the trial court failed to cause the clerk to read the indictmentto the jury after the jury was impaneled and sworn. The trial court also failed to inform the jury of Mr. Sandoval’s plea to the charges in the indictment. Asnotedat p. 119, ante, the trial court did read the indictment to two of the six panels of prospective jurors during jury selection. (3 RT 332-336, 442-445.) However, the court did not read the indictmentto the other four panels of prospective jurors during jury selection.” Ofthe twelve jurors and fouralternates ” In its remarksto three of the four panels to whichthetrial court did not read the indictment, the court did note that one of the charges in the case was murder with special circumstanceallegations. (3 RT 372; 4 RT 680-681; 5 RT -130- impaneled and sworn,three were selected from a panel to which the court had not read the indictment. (1 Supp. I CT 98-100, 120.)” And,after the twelve jurors and four alternates were impaneled and sworn,the court did not cause the indictment to be read to them. Rather, after the twelve jurors were sworn (5 RT 1044), and after the four alternates were sworn (5 RT 1057-1058), the court gave preliminary instructions to the jury (6 RT 1069-1077), and then the parties gave their opening statements. (6 RT 1078-1109.) Thus, the trial proceeded without the reading of the indictmentto three of the jurors and alternates. At no time, did the trial court inform any membersofthe jury that Mr. Sandoval had pled not guilty to the charges in the indictment. Although the court did note the presumption of innocencein its introductory remarks to some,but not all, of the prospective jurors during jury selection (3 RT 329, 374, 446; 4 RT 684; 5 RT 989-990), and although the court did instruct the jury regarding the presumption of innocenceinits final charge during the guilt phase (10 RT 2006), the court did not inform the jury at any time that Mr. Sandoval had pled not guilty 988.) The court did not mention the other charges in the indictmentto these three panels. * A chart specifying the numbers ofthe selected jurors and alternates is contained in the record. (1 Supp. I CT 120.) Two of the selected jurors and one of the selected alternates had beenin the second panelofprospective jurors. (1 Supp. CT 98-100.) -131- to the charges in the indictment. Given the circumstancesofthis case, the trial court’s erroneousfailure to comply with Penal Code section 1093, subdivision (a) necessitates reversal. In People v. Sprague (1879) 53 Cal. 491, this court rejected an argument that a trial court’s failure to comply with Penal Code section 1093 necessitated reversal, because the error did not prejudice the defendant. As this court explained: After the jury was empaneled and sworn, the Clerk did not (as directed by sec. 1093 of the Penal Code) read the indictmentandstate the defendant’s plea. It appears from the bill of exceptions, however, that during the empaneling ofthe jury the substance of the indictment and plea were manytimesrepeated; that in opening the caseto the jury the District Attorney stated the substance of the indictment and also [the] defendant’s plea thereto; that in the charge of the Court the substance of the indictment and plea were again mentioned; andthat the defendant made no objection to proceeding with thetrial by reason ofthe failure of the Clerk to read the indictmentor to state the plea, nor in any wayreferred to the omission until after the verdict had been received and entered on the minutes, and the jury polled at [the] defendant’s request. (Id. at p. 494.) In light of the foregoing, this court felt there was no doubt that the jury was “fully informed from the commencementofthetrial of the precise charges against the defendant, and ofthe issue raised by his plea of ‘not guilty.” (/d. at p. 495.) Accordingly, in reliance on Penal Codesections 1258 and 1404, which prohibit -132- reversal based upon departure from the procedures specified in the Penal Code absent infringement upon a defendant’s substantial rights,” this court held thetrial court’s noncompliance with Penal Codesection 1093 did not warrantreversal. (id. at pp. 494-495.) Similarly, in People v. Twiggs (1963) 223 Cal.App.2d 455, the court concluded “the failure to read the accusatory pleading and plea of the defendant would notconstitute a fatal error ... when it appears from the record of the jury impanelment... that the jury must have been awareofthe accusation and [the] defendant’s plea thereto.” (/d. at p. 464.) In any event, defense counsel in Twiggs waived the reading of the information to the jury. (/d. at pp. 463-464.) Unlike the Sprague and Twiggs cases, where it was clear to the juries that the defendants had entered not guilty pleas to the charges in the accusatory pleadings, it was not madeclearto the jury in the instant case that Mr. Sandoval had pled not guilty to any orall of the charges in the indictment. Neitherthetrial court northe attorneys suggested Mr. Sandoval had pled not guilty to the charges. * Penal Code section 1258 provides: “After hearing the appeal, the court must give judgment without regard to technical errors or defects, or to exceptions, which do notaffect the substantial rights of the parties.” Penal Code section 1404 provides: “Neither a departure from the form or modeprescribed bythis code in respect to any pleading or proceeding, nor an error or mistake therein, rendersit invalid, unless it has actually prejudiced the defendant, or tended to his prejudice, in respect to a substantial right.” -133- The prosecutor’s opening statement consisted principally of a description of the shooting on Lime Avenueand the evidence that Mr. Sandoval wasthe shooter. The prosecutor made no mention of the fact that Mr. Sandovalhad pled not guilty to the charges stemming from the shooting. (6 RT 1078 -1101.) Similarly, in the opening statement given by lead defense counsel, no mention was made of Mr. Sandoval’s not guilty plea. Rather, counsel twice informed the jury that Mr. Sandoval had confessed, and stated the evidence would show that his plan had been to shoot Toro, but not anybodyelse. (6RT 1102-1109.) Even duringthetrial court’s final charge to the jury in the guilt phase, when the court did instruct the jury concerning the charged offenses and the elements of those charged offenses, the court did not instruct the jury that Mr. Sandoval had pled not guilty to the charges. (10 RT 2007-2025.) Furthermore, the attorneys made noreference to the fact that Mr. Sandoval had pled not guilty in their closing arguments. The prosecutor’s argument focused almost exclusively on the murder charge and the special circumstanceallegations. (10 RT 2027-2041, 2054-2064.) Defense counsel’s closing argument focused solely on the murder charge, with counsel arguing that Mr. Sandoval was guilty of second degree murder. (10 RT 2045-2053.) Defense counsel offered no argument concerning the other counts. // 1 -134- In light of these circumstances,the trial court’s failure to read the indictment to the jury and to inform the jury that Mr. Sandovalhad pled not guilty to the charges in the indictment constitutes reversible error. The case wastried without the jury ever being informed that Mr. Sandoval denied his guilt as to the murdercharge in countI and the serious charges in the other counts. Thetrial court’s complete failure to comply with Penal Code section 1093, subdivision (a) in this case violated Mr. Sandoval’s fundamental right under the Sixth and Fourteenth Amendmentsto have the jury pass on the ultimate question of his guilt or innocence with respect to each of the charged offenses. (Duncanv. Louisiana (1968) 391 U.S. 145.) Although it is for the trial judge “to instruct the jury on the law andto insist that the jury follow his [or her] instructions” (United States v. Gaudin (1995) 515 U.S. 506, 513), “the jury’s constitutional responsibility is not merely to determine the facts, but to apply the law to those facts and draw the ultimate conclusion of guilt or innocence.” (/d. at p. 514.) The jury in this case, uninformed that Mr. Sandoval deniedhis guilt on the charged offenses, was simply not meaningfully called upon to pass on the ultimate question of guilt or innocence. A jury in a criminaltrial must be informed,at least once, that the accused haspled not guilty to the charges. /// -135- IV. THE EVIDENCE WASINSUFFICIENT TO SUPPORT THEFIRST- DEGREE MURDER CONVICTION, AND, BASED ON THE RECORD,ITCANNOTBEDETERMINEDWHETHERTHE JURY’S VERDICT RESTED ON THE UNSUSTAINABLE TRANSFERRED- PREMEDITATIONTHEORY PRESENTEDBYTHEPROSECUTOR. Mr. Sandoval’s murder of Detective Black was intentional but unplanned. The killing was not murderofthe first degree. With revenge in mind, Mr. Sandoval and four of his fellow gang members set out to shoot and/or kill Toro. (2 CT 280.) However, as they were commencing the actual execution of their plan at Toro’s residence, they were interrupted. Detectives Black and Delfin arrived on the scene in an unmarkedpolice vehicle. (8 RT 1565-1566.) The detectives focused their attention on Rascal, who was walking toward Toro’s residence. (8 RT 1567-1568; 9 RT 1763-1764, 1767, 1773; 2 CT 292-295.) Rascal, who wason parole andillegally in the country, was carrying a handgun. (6 RT 1267; 2 CT 283-286, 295-297, 325.) Mr. Sandoval openedfire on the detectives, killing Detective Black. (8 RT 1570-1575, 1718- 1732; 9 RT 1764.) Unlike the fate Mr. Sandoval had intended to bestow upon Toro, the killing of Detective Black was unplanned. Mr. Sandoval’s state of mind with respect to the former wascold and calculated. His state of mind in connection with the latter was unplanned, rash, and impulsive. Because Mr. -136- Sandoval’s murder of Detective Black was not premeditated and deliberate, it was not first degree murder. The first degree verdict returned by the jury in spite of the evidentiary insufficiencyis likely attributable to the prosecutor’s improper argument concerninga theory of culpability that is not applicable in this case: Based upon the trial court’s instructions, the jury was presented with two legal theories upon whichto predicate a first degree murder conviction: 1) premeditated and deliberate murder, and/or 2) the functionally equivalent theory ofmurder committed by meansoflying in wait. (10 RT 2008-2009; 5 CT 1217-1219.)”> * In argument to °° In People v. Ruiz (1988) 44 Cal.3d 589, this court described murder by means of lying in wait as the “functional equivalent” ofpremeditated and deliberate murder. (/d. at p. 614.) However, considerable “confusion”exists in this state’s lying-in-wait jurisprudence. (People v. Poindexter (2006) 144 Cal.App.4th 572, 586 & fn. 24.) Notwithstanding this confusion,ifthere is any appreciable distinction between the proof necessary to support a first degree murder conviction on a theory ofpremeditation and deliberation and the proof necessary to support such a conviction on a theory oflying in wait, it is that the latter is more exacting than the former. (People v. Stanley (1995) 10 Cal.4th 764, 795-796.) This state’s lying-in-wait jurisprudenceis discussed in greater detail at pp. 249-259,infra. °° Thetrial court generally defined murderfor the jury (10 RT 2007-2008; 5 CT 1215-1216), and instructed the jury that if it found Mr. Sandoval guilty of murder, it was required to determine whether the murder wasofthe first or second degree. (10 RT 2011; 5 CT 1225.) The court only instructed the jury as to two legal theories pursuant to whichit could possibly reach a finding offirst degree murder — premeditated and deliberate murder, as defined in CALJIC No.8.20, and murder by meansoflying in wait, as defined in CALJIC No. 8.25. (10 RT -137- the jury, however, the prosecutor did not confine his case for a first-degree verdict to these two theories. Rather, the prosecutor explicitly urged a transferred premeditation theory. (10 RT 2028, 2057-2059.)”” Transferred premeditation is not a cognizable theory of culpability in this case. Indeed,thetrial court did not instruct the jury concerning transferred premeditation or any other form of transferred intent. Tellingly, during grand jury proceedings, the prosecution had proceeded on yet another theory: At that stage, the prosecution contended that Mr. Sandoval 2008-2009; 5 CT 1217-1219.) *” The prosecutor argued: “The premeditation and deliberation in terms of this particular defendant started a long time before they ever got to Lime [Avenue]. The intended target happened to change, but the premeditation and deliberation andintention to go over there and kill existed long before he got anywhere near Lime [Avenue].” (10 RT 2028,italics added.) Then, in his rebuttal argument, the prosecutor made the following remarks: “What we’re talking about [with respect to the requirements of premeditation and deliberation] is converting from Target A to Target B.” (10 RT 2057,italics added.) In going to Lime [Avenue][,] [l]ook at the willful, premeditated notion that caused him to bethere.” (10 RT 2058.) “Consider the gang meeting, and what they wrote down, what the gang meeting wasabout[,] when you consider premeditation and deliberation.[]] Consider the fact that he had to load a weapon,and that they had a meeting for 15 to 30 minutes before they left Dairy Street to go effectuate a killing. That’s premeditation and deliberation. [J] Those are the things that accompaniedthis killing. Those processes didn’t discard themselves because police officers came downthestreet. [J] The fact of the matter is, the willful, deliberate[,] premeditated aspects ofthis crime all came into place and aresatisfied long before the crime ever occurred.” (10 RT 2059,italics added.) -138- and his fellow gang members had engagedin a conspiracyto kill Toro, and that the killing of Detective Black had been a natural and probable consequenceofthat conspiracy. In this regard, the grand jury adviser instructed the grand jury pursuant to CALJIC No. 6.11. (4 CT 1030-1031.) CALJIC No. 6.11 is a model jury instruction that sets forth the natural and probable consequencesdoctrine. (People v. Garewal (1985) 173 Cal.App.3d 285, 299.) The prosecution did not proceed on this conspiracy theory at trial, and the court did not instruct the jury on the natural and probable consequencesdoctrine. Becausethe evidence shows Mr. Sandoval’s murder of Detective Black was not premeditated and deliberate, the evidenceis insufficient to support a first degree murderconviction. Evidently, the insufficiency of the evidencein this regard led the prosecutorto urge the untenable transferred premeditation theory. However, this theory could not cure the evidentiary insufficiency. Rather, by introducing it, the prosecutor circumvented the evidentiary insufficiency and paved the wayfor the jury to return a first degree verdict on an extralegal basis. A. Standard ofReview In reviewing a sufficiency claim, an appellate court inquires “whether, after viewing the evidencein the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a -139- reasonable doubt.” (Jackson v. Virginia (1979) 443 U.S. 307, 319; People v. Johnson (1980) 26 Cal.3d 557, 578.) B. Governing Constitutional and Legal Principles Concerning the Evidentiary Requirements to Establish Premeditation and Deliberation 1. The Prosecution’s Burden ofProof “[P]roof of a criminal charge beyond a reasonable doubtis constitutionally required.” (Jn re Winship (1970) 397 U.S. 358, 362.) “This notion — basic in our law andrightly one ofthe boasts of a free society— is a requirement and a safeguard of due processoflaw....” (/bid., internal quotation marks omitted.) The Supreme Court of the United States has “explicitly hf{e]ld that the Due Process Clause protects the accused against conviction except upon proofbeyond a reasonable doubtofevery fact necessary to constitute the crime with whichheis charged.” (/d., at p. 364.) This due process requirement “must be applied with explicit reference to the substantive elements of the criminal offense as defined by state law.” (Jackson v. Virginia, supra, 443 U.S.at p. 324, fn. 16.) The requirementobtains not only with respect to proofbearing on matters germaneto distinguishing between guilt and innocence, but also to matters germaneto distinguishing between degreesofguilt. (Mullaney v. Wilbur (1975) 421 U.S. 684, 697-698 [“the criminallaw... is -140- concerned not only with guilt or innocencein the abstract but also with the degree of criminal culpability’].) 2. Premeditation and Deliberation Murderis either of the first degree or of the second degree. (Pen. Code, § 189.) A malicious and unjustified killing is presumed to “constitute[] murder of the second, rather than ofthe first, degree....” (People v. Anderson (1968) 70 Cal.2d 15, 25.) A willful, deliberate, and premeditated killing is murderofthe first degree. (Pen. Code, § 189.) “A verdict of deliberate and premeditated first degree murder requires more than a showingofintent to kill.” (People v. Koontz (2002) 27 Cal.4th 1041, 1080, cert. denied sub nom. Koontz v. California (2003) 537 U.S. 1117.) Indeed, in a case in which the prosecution seeks to secure a first degree murderconviction based on a theory that a killing was premeditated and deliberate, premeditation and deliberation are essential elements of the offense. (People v. Romero (2008) 44 Cal.4th 386, 400.) UnderCalifornia law, the division of murderinto two degrees is based upon “a recognition of the infirmity of human nature”and the “difference in the quantum ofpersonal turpitude of the offenders.”’ (People v. Holt (1944) 25 Cal.2d 59, 89.) Thus, first degree murder must involve a greater degree of -141- blameworthiness than second degree murder. (See People v. Ochoa (2001) 26 Cal.4th 398, 454.) Indeed, the maliciousintent to kill sufficient to support a second degree murder conviction “is not synonymous with ‘willful, deliberate, and premeditated’ intent.” (Holt, supra, 25 Cal.2d at p. 70.) To fail to recognize and apply this distinction is to “emascualte[] the difference between murderofthefirst degree and that of the second degree.” (/d.at p. 88.) “By conjoining the words ‘willful, deliberate, and premeditated,’ in its definition and limitation of the character of killings falling within murderofthe first degree the Legislature apparently emphasizedits intention to require as an element of such crimesubstantially more reflection than maybe involvedin the mere formation ofa specific intentto kill...” (People v. Thomas (1945) 25 Cal.2d 880, 900.) Penal Code section 189’s “express requirement for a concurrence of deliberation and premeditation excludes from murderofthe first degree those homicides (not specifically enumerated in the statute) which are the result of mere unconsidered or rash impulse hastily executed.” (/d. at pp. 900-901.) “Premeditation or deliberate purpose maytake various formsin addition to poison, lying in wait, and torture.” (1 Witkin & Epstein, California Criminal Law (3d ed. 2000) Crimes Against the Person, § 103, p. 719.) “Traditionally, ‘premeditated’ has been defined as ‘on preexisting reflection,’ and ‘deliberate’ as -142- ‘resulting from careful thought and weighing of considerations.’” (Ibid.) “The terms have been further defined by their antonyms: ‘premeditated’ is not ‘spontaneous’ and ‘deliberate’ is not ‘hasty,’ ‘impetuous,’ ‘rash,’ or ‘impulsive.’” ([bid.; accord, People v. Koontz, supra, 27 Cal.4th at p. 1080.) “[T]here is nothing in the sections of the Penal Code whichindicates that the Legislature meantto give to the words ‘deliberate’ and ‘premeditate’ any other than their common, well-known dictionary meaning.” (People v. Bender (1945) 27 Cal.2d 164, 182.) “(If an act is deliberate and premeditated even though it be executed in the very momentit is conceived, with absolutely ‘no appreciable’ time for consideration[,] ... then it is difficult to see wherein there is any field for the classification of second degree murder.” (/bid.) “[I]t shamesthe law asit violates the truth to say that a man can premeditate the momenthe conceives the purpose.” *% “ A gang expert later testified that Rascal’s note concerning this subject reflected a concern that B.P. gang members were not killing enough rival gang members. (6 RT 1144; 9 RT 1889; People’s Exhibit 26.) Resuming with his opening statement, the prosecutor commentedthat Rascal’s notes contained a list of B.P. members, including Mr. Sandoval and the other gang members who were with him whenthe shooting occurred. (6 RT 1087- 1088.) The prosecutor also remarked that Rascal’s notes admonished fellow B.P. members: “Get your ride on, you bitch ass fools.” According to the prosecutor, this meant B.P. members werebeing directed to “take care of’ rival gang members, including E.S.P. gang members generally, and Toro specifically. (6 RT /// ' In Rascal’s notes, the vulgarity was misspelled “muthaphuckers.” (6 RT 1148; People’s Exhibit 26.) -192- 1089.)''© Then, the prosecutor said Rascal’s notes reflected B.P. leaders were upset about B.P. membersallowing rival gang membersto write graffiti in their territory and wanted them to “take care of that[.]” Defense counsel interposed a hearsay objection, whichthetrial court overruled. (6 RT 1089.) The prosecutor repeated that Rascal’s notes stated there were “not enough dead motherfuckers,” and commented: “T think the messageis real clear they’re pissed off because they are not getting enough workin their hood, and they are not killing enough people, and specifically, Toro is gonnabethetarget.” (6 RT 1089-1090.) Defense counsel objected on relevance grounds. The court overruled the objection and told defense counsel not to repeat the objection. (6 RT 1090.) During a subsequentrecess, defense counsel stated “the ‘not killing enough - people’ [statement] is very disturbing to the defense.” Noting that the statement ''6 Although Rascal’s notes made noreference to E.S.P. or Toro (People’s Exhibit 26), a videotape to which the prosecutorreferred (6 RT 1081, 1086-1087), depicted Rascal making threatening writings concerning E.S.P. and Toro. (9 RT 1882-1887; People’s Exhibit 68.) Priorto trial, the defense had objected to the admissibility of the videotape, which contained footage of events subsequentto the murderofDetective Black. (3 RT 494-498, 507; 1 CT 234-235.) Thetrial court had not ruled on the admissibility of the videotape by the time of the prosecutor’s opening statement, but allowed the prosecutorto refer to it over defense objection. (6 RT 1081-1085.) Eventually, the trial court overruled defense objections to the videotape (9 RT 1749-1758), and allowed the prosecution to play the tape for the jury. (9 RT 1882-1887.) A gang expert testified the video depicted Rascal threatening to kill Toro. (9 RT 1887.) -193- was written on a piece of paper eventually recovered by police and that no showing had been madethat Mr. Sandoval had participated in writing it or agreeing with its contents, defense counsel objected to the note on the groundsit wasinadmissible hearsay, unduly prejudicial, and its admission would violate Mr. Sandoval’s due process rights. (6 RT 1141-1142.) The prosecutor stated Rascal had written the notes, and the prosecution’s gang experts would interpret the notes. (6 RT 1143-1144.) Furthermore, the prosecutorsaid “the subject matter of [the BP] meeting,... [was] also the subject matter which was mentioned”in Rascal’s notes. (6 RT 1144.)''” "8 Accordingto the prosecutor, “by ... shooting a police officer,” Mr. Sandoval “adopt[ed] exactly the state of mind whichis stated” in Rascal’s notes. (6 RT 1153-1154.) Defense counsel again moved to exclude the “inflammatory” evidencein the notes about “not killing enough people,” and specifically objected to the use of that statement to prove Mr. Sandoval’s mental '' Defense counsel did not point out the absence of evidencethat the contents of Rascal’s notes were ever imparted to anybody. Nobody who participated in the B.P. meeting testified in Mr. Sandoval’strial. Hence, there was no evidence as to what wasstated at the meeting. There wascertainly no evidence that Rascal’s notes were read to those who attended the meeting. ''8 The prosecutorreiterated that the notes had been provided to defense counsel. (6 RT 1145.) Defense counsel said they had no information that Rascal wasthe authorofthe notes until the prosecutor madethat assertion during his opening remarks. (6 RT 1147.) -194- state. (6 RT 1148-1149, 1153.) The court overruled the objection, stating: [T]he document which containsthe notation, not killing enough people,’”! I presume a foundationis going to be laid by a gang expert indicating that this is material from the defendant’s admitted gang members, either written by one of them or him. I have no idea who the author is and whothe People are going to say authoredit[.] [T]his wasall present at the location where the defendant and his other gang members metandparticipated prior to the shooting that resulted in the death of the victim in countone.[{] ... So I would imaginethat it’s going to be authenticated by a gang expert whois going to explain what those materials mean.[§] Therefore,it is highly probative and much moreprobative than prejudicial. (6 RT 1150-1151.) Lucinda Lara, who had lived at Lazy’s residence and dated Mr. Sandoval’s codefendant, Mr. Bojorquez (7 RT 1299-1300, 1339-1340, 1350), identified a folder containing the notes Rascal had written. (7 RT 1303, 1350-1356.) Ms. Lara’s step-sister, Kristen Trochez, also identified the notes. (7 RT 1385-1386, 1391-1392.) Ms. Trochez, who had acquired the notes from Ms. Lara, eventually gave the notes to police approximately one anda half years after the shooting. (7 RT 1391, 1394.) Lucinda Lara’s sister, Emily Lara, testified she had overheard Rascal talking to people for several days, setting up the B.P. meeting at Lazy’s home. (7 RT 1403.) The following exchange then took place during the prosecutor’s direct examination of Emily Lara: -195- w d The Prosecutor: Defense Counsel: The Court: Defense Counsel: The Court: Defense Counsel: The Prosecutor: The Court: The Prosecutor: The Witness: The Prosecutor: The Witness: (7 RT 1403-1404.) Well, did you hear when Rascal was making the phonecalls telling these folks they had to show up for the meeting? [§] Did you hear him telling them whatthe meeting was about? Objection; leading. Excuse me? Leading. Overruled. It does call for hearsay. It would be an admission by a coconspirator. Overruled. Did you hear him discussing what the meeting was about. Yes. Like, they’re slacking off. And, you know, they have to have this meeting and talk about what they’re messing up on andstuff like that. Did they talk about people they wereletting in the hood like taggers and stuff? Yes Shortly thereafter, in proceedings conducted outside the presence of the jury, defense counsel argued that statements made by Rascal regarding the -196- planning for the meeting were not properly admissible as coconspirator statements because they pertained to an uncharged conspiracy targeting E.S.P. and Toro. The prosecutor countered that a conspiracy need not be charged in order for the prosecution to proceed on a conspiracy theory. However, defense counsel rejoined that the prosecution was not proceeding on a conspiracy theory with respect to the charged offenses, and that because Mr. Sandoval andhis fellow B.P. membershad noidea police were going to show up duringtheir attempted assault on Toro, Rascal’s statements regarding the planning for the meeting were inadmissible. In turn, the prosecutor contended Mr. Sandoval’s conduct during the shooting showed “total compliance” with the dictates purportedly conveyed at the B.P. meeting. (7 RT 1413-1315.) Thetrial court ruled that Rascal’s statements were admissible as statements of a coconspirator because the prosecution was proceeding on theories predicated on conspiracy and aider and abettor liability. (7 RT 1416.) According to the court, the shooting of Detective Black was an inherent part of that conspiracy, because it was carried out in an effort to avoid arrest. (7 RT 1417.) Whenthe prosecutor presented gang expert testimony regarding Rascal’s notes, the defense again objected on groundsofrelevance, hearsay, and lack of -197- foundation, and the court again overruled the defense objection.'’” The gang experts testified that Rascal’s notes were meantto signify to other B.P. gang membersthat they had not been adequately defending their territory, that they needed to start controlling criminal activity on behalf of B.P. in B.P. territory, and that they neededtostart “killing people or [B.P.] rivals.” (9 RT 1786-1794, 1888- 1891.) Just before the parties’ guilt phase closing arguments, the trial court overruled a final defense objection to the admissibility of Rascal’s notes. (10 RT 1975-1976, 1987-1988.) During his closing argumentin the guilt phase, the prosecutor argued, over defense objection, that Mr. Sandoval’s premeditation began at the gang meeting at Lazy’s home when B.P. membersweretalking about “not killing enough people.” (10 RT 2028.) C. Legal Principles Concerning the Admission ofEvidence Pursuant to the Exception to the Hearsay Rulefor Coconspirator Statements Evidence Codesection 1223 provides: Evidence of a statement offered against a party is not made inadmissible by the hearsayrule if: '? However, the court did grant the defense request for a “continuing objection”to the contents of the notes. (9 RT 1788-1790.) -198- (a) The statement was madeby the declarant while participating in a conspiracy to commit a crime or civil wrong and in furtherance of the objective of that conspiracy; (b) The statement was madepriorto or during the timethat the party wasparticipating in that conspiracy; and (c) The evidenceis offered either after admission of evidence sufficient to sustain a finding of the facts specified in subdivisions(a) and (b) or, in the court’s discretion as to the order of proof, subject to the admission of such evidence. A statement made by a person before he or she becomes a memberof a conspiracy cannot be admitted under the coconspirator exception to the hearsay rule. (People v. Jurado (2006) 38 Cal.4th 72, 117-118.) This self-evident proposition derives from the foundational requirement that statements may only be admitted pursuant to the coconspirator exception if they are “made during and in furtherance of a ‘continuing’ conspiracy....” (People v. Leach (1975) 15 Cal.3d 419, 423; Krulewitch v. United States (1949) 336 U.S. 440, 442-443; Fiswickv. United States (1946) 329 U.S. 211, 216-217.)'” “{S]tatements which merely narrate past events are not to be deemed as madein furtherance of a conspiracy...” (People v. Saling (1972) 7 Cal.3d 844, 9 Subdivision (a) of Evidence Code section 1223, which sets forth one of the conjunctively prescribed foundational prerequisites to the admissibility of a coconspirator statement, requires the statement to have been made“by the delcarant while participating in [the] conspiracy....” (Italics added.) -199- 852, fn. 8; United States v. Fielding (9" Cir. 1981) 645 F.2d 719, 727; Van Riper v. United States (2d Cir. 1926) 13 F.2d 961, 967.) “[A] statementis not in furtherance of the conspiracy unless it advances the ultimate objects of the conspiracy.” (United States v. Cornett (5" Cir. 1999) 195 F.3d 776, 782.) “Mere idle chatter ... among coconspirators[] is not admissible...” (Zbid., internal quotation marks omitted.) “[A] coconspirator’s statementsatisfies the ‘in furtherance’ requirement when the statementis part of the information flow between conspirators intended to help each perform his role.” (United States v. Doerr (7" Cir. 1989) 886 F.2d 944, 951, internal quotation marks omitted.) “A statementthat simply informsa listener of the declarant’s criminal activities is not made in furtherance ofthe conspiracy; instead, the statement must somehow advancethe objectives of the conspiracy.” (United States v. Mitchell (8" Cir. 1994) 31 F.3d 628, 632.) “Whether a statement wasin furtherance of a conspiracy turns on the context in which it was made andthe intent of the declarant in makingit.” (United States v. Warman (6™ Cir. 2009) 578 F.3d 320, 338.) In order to determine whether statements madeare in furtherance of a conspiracy,it is necessary to analyze “the totality of the facts and circumstancesin the case.” (People v. Hardy (1992) 2 Cal.4th 86, 146.) -200- When“the existence of a conspiracy is urged not for the purpose of imposing substantive liability but merely as a vehicle for using otherwise inadmissible hearsay evidence against the defendant|,]” there is “no basis for ‘further breach of the general rule against the admission of hearsay evidence[.]’” (People v. Leach, supra, 15 Cal.3d at p. 435; quoting People v. Saling, supra, 7 Cal.3d at p. 853.) Even if proffered hearsay evidencesatisfies the foundational requirements of an exception to the hearsayrule, the evidenceis not admissible unlessit is relevant. (People v. Allen (1976) 65 Cal.App.3d 426, 433.) To be relevant, evidence must havea “tendencyin reason to prove or disprove any disputed fact that is of consequence to the determination of the action.” (Evidence Codesection '21 made by onepersonto prove that another person210.) In order for a statement adopted the mindsetreflected by the statement, the statement must have been communicated in some wayto the person who purportedly adopted the mindset reflected by the statement. (See People v. Lebell (1979) 89 Cal.App.3d 772, 779- 780.) "1 “For purposes of the hearsay rule, a ‘statement’ is defined as ‘oral or written verbal expression’ or ‘nonverbal conduct... intended ... as a substitute for oral or written verbal expression.’” (People v. Lewis (2008) 43 Cal.4th 415, 497, ellipses in the original.) --201- ad In a case where “the admissibility of evidence depends on the existence of a preliminary fact, [such as the foundational prerequisites for the application of a hearsay exception,] the burden is upon the proponentthereof to establish such existence[,] and ... it is incumbentonthetrial court to see such evidenceis disregarded wherethe jury could not reasonably find that the preliminary fact exists.” (Id. at p. 779; United States v. Cornett, supra, 195 F.3d at p. 782.) Because only testimonial hearsay is governed by the Confrontation Clause, (Whorton v. Bockting (2007) 549 U.S. 406, 420; Davis v. Washington (2006) 547 U.S. 813, 821-822),'?* constitutional regulation of nontestimonial hearsay derives from the Due Process Clause. Indeed, in United States v. Hall (9™ Cir. 2005) 419 F.3d 980, cert. den. (2005) 546 U.S. 1080, the Ninth Circuit held, in a context where Confrontation Clause rights under Crawford v. Washington, supra, 541 U.S. 36, do not apply, the accused “nevertheless enjoys a due processright to confront witnesses against him.” (Hall, supra, 419 F.3d at pp. 985-986; citing Morrissey v. Brewer (1972) 408 U.S. 471, 482.) ' In Crawford v. Washington (2004) 541 U.S. 36, the Court held the primary concern of the Confrontation Clauseis testimonial hearsay. “In Davis and Bockting, the Court reformulated this holding to say that the sole concern of the Confrontation Clauseis testimonial hearsay.” (Kirkpatrick, Nontestimonial Hearsay After Crawford, Davis and Bockting (2007) 19 Regent U. L.Rev. 367, 384,italics in the original, footnotes omitted.) -202- “[T]he Due Process Clause imposesa reliability requirement on evidence.” (Chase, Is Crawford a “Get Out ofJail Free” Cardfor Batterers and Abusers? An Argumentfor a Narrow Definition of “Testimonial” (2005) 84 Or. L.Rev. 1093, 1107; citing Manson v. Brathwaite (1977) 432 U.S. 98, 114 [concluding that “reliability is the linchpin” for assessing the admissibility of evidence in this context].) D. Analysis Rascal’s handwritten note about “not killing enough people,” was hearsay. It was “offered to prove the truth of the matter stated.” (Evidence Codesection 1200.) Specifically, the prosecutor offered the written remark to prove Mr. Sandoval’s mentalstate at the time of the shooting of Detective Black. (6 RT 1086; 10 RT 2028.) The prosecutor represented to the court that the subject matter set forth in Rascal’s notes was the same subject addressed at the B.P. meeting that took place at Lazy’ homeseveral hours before the shooting. (6 RT 1144.)'8 And, according to the prosecutor, when Mr. Sandoval shot the detective, he “adopt[ed] exactly the state of mind... stated” in Rascal’s notes. (6 RT 1153-1154.) Furthermore, a gang expert called by the prosecutortestified that the note reflected '3 As noted above, the prosecutor madethis representation despite the fact that no evidence was adduced regarding what wasactually discussed during the B.P. meeting. -203- Rascal’s concern that B.P. members werenot killing enough rival gang members. (9 RT 1889.) Rascal’s notes were just that — Rascal’s notes. The prosecution adduced no evidencethat the contents of Rascal’s notes were ever communicated to anybody. No evidence was presented that Rascal or any other B.P. member read or otherwise communicated the contents of Rascal’s notes to other B.P. members at the B.P. meeting at Lazy’s home. The notes may haveconstituted nothing more than Rascal putting to paper thoughtsrattling aroundin his head. There was no evidence to the contrary. Thus, there was no evidencethat the notes constituted statements madein furtherance of a conspiracy. (Evid. Code, § 1223, subd. (a); United States v. Cornett, supra, 195 F.3d at p. 782 [“{A] statement is not in furtherance of the conspiracy unlessit advances the ultimate objects of the conspiracy.”]; United States v. Doerr, supra, 886 F.2d at p. 951 [the statement must be shownto be “part of the information flow between conspirators intended to help each perform his role”’].) The statement in the notes about “not enough dead mother fuckers” cannot be deemed a statement made during andin furtherance of any conspiracy: In furtherance of what conspiratorial agreement was the statement/note written? It was not written during or in furtherance of the conspiracy to kill Toro, because -204- that conspiracy had not yet comeinto existence. (People v. Jurardo, supra, 38 Cal.4th at pp. 117-118 [statement made prior to formation of conspiracyis not a coconspirator statement].) Rascal wrote his notes before the event that triggered the B.P. conspiracy/agreementto kill Toro. The B.P. meeting also occurred before that triggering event. The triggering event was the E.S.P. drive-by shooting, whichoccurred after the B.P. meeting. Thus, Rascal’s notes were not written during the course of the conspiracy. The B.P. meeting did not occur during the course of the conspiracy. A fortiori, whatever statements may have been madeat the B.P. meeting did not occur during the course of the conspiracy. Admission of the notes, without any testimony from Rascal or anyofthe participants in the B.P. meeting violated Mr. Sandoval’s “due processright to confront witnesses against him.” (United States v. Hall, supra, 419 F.3d at pp. 985-986.) Without any testimony from the authorof the notes, the notes were bereft of any reliable meaning. Rascal’s note regarding “not enough dead people” could have simply consisted of Rascal narrating or memorializing his dissatisfaction with a past circumstance,i.e., that, in his view, B.P. had not previously killed enough people. Such statements are inadmissible andirrelevant. (People v. Saling, supra, 7 Cal.3d at p. 852, fn. 8.) Because Mr. Sandoval had no opportunity to confront Rascal regarding the meaningofthe note, he was denied -205- w t the opportunity to expose the actual meaningofthe note. The inflammatory and prejudicial nature of Rascal’s note about there not being “enough dead mother fuckers”is self-evident. Whether the erroneous admission ofthis portion of Rascal’s notes and the remainderofthe notesis deemed constitutional error or mere state law error, the error necessitates reversal. Theprosecutorrelied on this inadmissible evidence in his argumentto the jury concerning Mr. Sandoval’s mental state at the time Mr. Sandoval shot Detective Black. The prosecutor stressed the note during his opening statement (6 RT 1080, 1087-1090), and contended during closing argument that the note showed Mr. Sandoval shot the detective with premeditation. (10 RT 2028.) A prosecutor’s specific emphasis on erroneously admitted evidence during opening statement and closing argument militates against a finding by a reviewing court that the error did not substantially influence the jury. (Arnold v. Runnels (9" Cir. 2005) 421 F.3d 859, 869 [“prosecutor’s emphasis on” erroneously admitted evidence “both in his opening statement and his closing argument” contributed to finding of prejudicial error]; Ghent v. Woodford (9" Cir. 2002) 279 F.3d 1121, 1131 [prosecutor’s reliance on erroneously admitted evidence concerning premeditation in opening statement and closing argument precluded finding of harmlessness]; United States v. Hernandez (5" Cir. 1985) 750 F.2d 1256 [finding prejudicial error where -206- prosecutor “emphasized”and “embellish[ed]’” upon erroneously admitted hearsay evidencein closing argument]; Khoa Dang Nguyen v. McGrath, (N.D. Cal. 2004) 323 F.Supp.2d 1007, 1018 [“The Ninth Circuit has found that errors did have a substantial and injurious effect or influence on a jury’s verdict where the prosecutor emphasized the evidence.”].) Whetherviewed independently, or in combination with the other errors _ germaneto the premeditation issuein this case, the trial court’s erroneous admission of Rascal’s inflammatory notes cannot be deemed harmless under Watson or Chapman. VIL. THE TRIAL COURT ABUSEDITS DISCRETION AND RENDERED MR. SANDOVAL’S TRIAL UNFAIR BY ALLOWING THE PROSECUTION TO ADDUCE EVIDENCE THAT A WITNESS CALLED BY THE PROSECUTION HAD BEEN THREATENED BY AN UNIDENTIFIED THIRD PARTY, DESPITE THE FACT THAT NO EVIDENCE WAS PRESENTED THAT MR. SANDOVAL KNEW ABOUTTHE THREAT. Thetrial court abusedits discretion by admitting evidence and innuendo that unidentified B.P. members had threatened witness Angela Estrada. Although there was no evidence that Mr. Sandoval had anything to do with the purported threat(s), the trial court overruled defense objections to the evidence and allowed the prosecution to present the evidenceto the jury. (6 RT 1159-1162, 1183-1187, -207- 1206-1207.) The error wasprejudicial and rendered Mr. Sandoval’s trial unfair. A. Standard ofReview Appellate courts apply the abuse of discretion standard to reviewtrial court rulings concerning the admissibility of evidence. (People v. Curl (2009) 46 Cal.4th 339, 359, cert. den. sub nom. Curl v. California (2010) 130 S.Ct. 1881.) B. Factual Background Angela Estrada wasthe third witness called to testify in the guilt phase. At the time of her testimony, she was 24 years old. She was a B.P. member. She - joined B.P.at the age of 12. (6 RT 1157.) On the day that Detective Black was killed, Ms. Estrada wasliving with hersister and others at the Dairy Street residence where the B.P. meeting organized by Rascal had taken place. (6 RT 1158, 1172, 1195-1196.) During her testimony, Ms. Estrada identified photographsofvarious B.P. members (6 RT 1157, 1162-1172, 1178-1179), described the observations she madeat the B.P. meeting at the Dairy Street residence (6 RT 1172-1176, 1196-1198), and answered questions regarding information she had divulged in various police interviews. (6 RT 1175-1178, 1185-1187, 1189-1190, 1199-1201, 1203.) In the course of the prosecutor’s direct examination of Ms.Estrada, the following exchangetookplace: Q: Well, just a few minutes ago,I talked to you in the D.A.’s office[?] -208- QO FF Q - Defense Counsel: The Court: Q: A: Defense counsel: The Court: A: Q: The Court: ... Right. Yes. And what did you say about wanting to be here? I don’t wantto be here. Did you say something about being threatened? Objection.[§]] May we approach the bench, your honor? Overruled. Is there a particular reason you don’t want to be here? BecauseI have nothing to do with this, you know. I don’t know. I don’t — I’m not involved with this, so I don’t feel like I should be here. For a person [who] has an association with a criminal street gang and knowsits gang members, is it a good ideaor a bad ideato get up on the stand and tell what you know aboutcriminal conduct by gang members? Objection; assumesfacts not in evidence. Overruled. [{] It’s a question. I don’t understand the question. Sure. [{] Ill rephrase it. [{] You say you don’t wantto be here? The record should reflect the witness is laughing. [{] Go ahead. Haveyou been threatened with regard to coming in here andtelling this jury the truth about what -209- The Court: er QO F BO F F PP © you know? I’m going to admonish the jury right now.[4] Any questions dealing with threats does [sic.] not infer [sic.] or assumethat those threats are connected with the defendant in any way,but threats in general may have occurred by people on their own who havenoties or relationship with the defendant, and you’re not to assumeotherwise.[{] Please go ahead. Do you rememberthe question? Yes. [§]] Have I been threatened? Yes. Notin particular. [{]] But in general, yes. What do you mean? [4] What does that mean? I’ve just been told, you know,just to watch whatI say. Well, what does that mean? I don’t know. Wasthe person with a message that you got a message from someone in Barrio Pobre? No. Did you|tell Detective Prell and I when we spoke to you that.it was someonein Barrio Pobre? Look, I don’t know whatyou’re tryingto getat[,] but — -210- The Court: A: Q: (6 RT 1159-1162.) Ma’am,just answer the question. No, it wasn’t. Did you tell Detective Prell and I, and then Detective Robbinsand I, that you were threatened by someonein Barrio Pobre? Someone told me, you know, we... saw the paperwork, and yousaid this and yousaid that. [] That’sall that was said. Later, during the prosecutor’s direct examination ofAngela Estrada, the following exchange occurred: Q: Pr O F QD - You made a comment early on when westarted talking about not being happyto be here and you said something about paperwork. [{]] What paperwork? Paperworkis what you guysgotin front of you. You’re talking about police reports? Police reports, you know.[{] Yes. So whyis that important? Whyis paperwork important? [{] It’s your guys’ ... paperwork. I don’t know. Well, you said you didn’t wantto testify, and you didn’t want to be here. And you madereference to part of the reason is because someonethreatened you, and they had paperwork.[§]] What did that mean whenyousaid that? -211- PF DO P e Obviously, everything that I say, you know, obvious know ya y it’s getting documented. And I mean,I u’re trying to — you’re trying to makeit seem like, if I know what happened or whatever, you know. But that’s not the case here. Did you Yes. understand my question? And so why wasit — Paperwa know,it rk. [§] It’s like me leaving here and, you being documented that I was here, and this is what I said. That’s paperwork. If there were paperworkindicating that you had testified [about] being a past memberof Barrio Pobre, and you hadtestified against another member of B.P., would that be looked on favorably or unfavorably by people in the neighborhood? Unfavorably. Did you already| tell Detective Prell and I, “I [have] been threatened after this incident happened’”!? Yes. Did you myhous involvec Nobody Someon tell Detective Prell, “Some guy came to e for another guy andtold me notto get yl? came to my house.[{]] Someonetold me. e gave me the message. -212- (6 RT 1183-1187.) At the conclusion of Ms. Estrada’s testimony, the prosecutorcalled Detective Prell to the stand. The detective testified that Ms. Estrada had told the prosecutor and the detective that she had been threatened. According to the detective, she had indicated that the threat had been conveyed bya third party to a friend of Ms. Estrada’s and that Ms. Estrada’s friend had,in turn, informed Ms. Estrada of the threat. (6 RT 1206-1207.) C. Case Law Concerning the Admissibility ofThreat Evidence UnderCalifornia case law andthe case law ofotherjurisdictions, evidence of a defendant’s post-arrest threats against prosecution witnesses is “relevant to show consciousnessofguilt.” (People v. Pinholster (1992) 1 Cal.4th 865, 945, cert. den. sub nom. Pinholster v. California (1992) 506 U.S. 921; Ortiz-Sandoval v. Gomez (9" Cir. 1996) 81 F.3d 891, 897; Bassett v. State (Ind. 2008) 895 N.E.2d 1201, 1211, cert. den. sub nom. Bassett v. Indiana (2009) 129 S.Ct. 1920; Ebronv. United States (D.C. 2003) 838 A.2d 1140, 1148, cert. den. (2004) 543 U.S. 939.) However, evidence concerning threats made against a witness cannot be introduced in evidence without a showing that the defendant had some connection to the threats,i.e., that the defendant knew aboutthe threats and authorized the threats. (People v. Gray (2005) 37 Cal.4th 168, 220, cert. den. sub nom. Gray v. California (2006) 549 U.S. 827; People v. Williams (1997) 16 Cal.4th 153, 200, -213- a b cert. den. sub nom. Williams v. California (1998) 522 U.S. 1150; see Peoplev. Hannon(1977) 19 Cal.3d 588, 59 566, cert. den. sub nom. Terry v. C (1958) 50 Cal.2d 535, 551-554; Pi [“if the attempt is madebya third must appearthat the third person { or is authorized by him to do so”’] 255-257.)'% 124 Tn certain cases, Califorr of threat evidenceis not precondit connection between the defendant V-603; People v. Terry (1962) 57 Cal.2d 538, falifornia (1963) 375 U.S. 960; People v. Weiss pople v. Perez (1959) 169 Cal.App.2d 473, 477 person outside of the defendant’s presence,it s acting on behalf of the defendant in so doing, People v. Gilliland (1940) 39 Cal.App.2d 250, tia courts havestated, in dicta, that admissibility ioned on a foundational showingof a and the threat(s). In People v. Gutierrez (1994) 23 Cal.App.4th 1576, the court commented: “It is not necessary to show threats against the witness were made by retaliation is directly linked to the the defendant personally, or the witness’s fear of defendantfor the evidence to be admissible.” (Id. at p. 1588.) However,in thatdefendant’s brother, and “there w case, the threats were allegedly made by theS$ circumstantial evidence introducedattrial [that the defendant had] at least authorized his brother’s intimidation of the witnesses.” (/d. at p. 1590.) Thus, the court’s comment regarding the purported lack of need for a connection between the threats and the defendant ‘“‘was unnecessary to the court’s decision and, therefore, dicta.” (People v. Sisuphan (2010) 181 Cal.App.4th 800, 811.) In People v. Burgener (2003) 29 Cal.4th 833, cert. den. sub nom. Burgenerv. California (2003) 540 U.S. 855, this court cited to Gutierrez in support of the propositionsthat “it is not necessary to show the witness’s fear of retaliation is ‘directly linked’ to the defendant for the threat to be admissible[,]” and that “[i]t is not'necessarily the source of the threat — butits existence — that is relevant to the witness’s credibility.” (/d. at pp. 869-870.) However, in Burgener, evidence wasintroduced “identif[ying] [the] defendant as the source ofthe threats...” (/d. at p. 869.) Hence, the propositions this court drew from Gutierrez were dicta in Burgener. -214- The general rule has been stated as follows: Since threats tend to show guilty knowledgeor an admission ofguilt on the part of the defendant, a proper foundation mustbelaid showing the threats were madeeither by the defendant or with his or her knowledge or authorization. (Cox v. State (Ind. Ct. App. 1981) 422 N.E.2d 357, 361-362; Annot., Admissibility in Criminal Case, on Issue ofDefendant’s Guilt, ofEvidence that Third Person Has Attempted to Influence a Witness Not to Testify or to Testify Falsely (1977) 79 A.L.R.3d 1156, 1159-1160, 1183-1186, §§ 2[a], 10[b] [collecting cases].) Otherjurisdictions uniformly adhereto this rule. (Ebron v. United States, supra, 838 A.2d at p. 1149; Johnson v. State (2002) 255 Ga. App. 721, 722 [566 S.E.2d 440, 442]; United States v. Thomas (7" Cir. 1996) 86 F.3d 647, 654,cert. den. sub nom. Story v. United States (1996) 519 U.S. 967; Dudley v. Duckworth (7" Cir. 1988) 854 F.2d 967, 970, cert. den. (1989) 410 U.S. 1011; United States v. Rios (10Cir. 1979) 611 F.2d 1335, 1349; State v. Hicks (Mo. App. 1976) 535 S.W.2d 308, 312; People v. Walton (1969) 17 Mich. App. 687, 689 [170 N.W.2d 315, 317].) In People v. Weiss, supra, 50 Cal.2d 535, this court explained: If the attempt is madeby a third person, not in the presence of the defendant or shownto have been authorized by him,it should at once be suspect as a mere purporting attempt to suppress evidenceandin truth an endeavorto prejudice the defendant before the jury in a way which he cannotpossibly rebutsatisfactorily because he does not know the true identity of the pretender. -215- (Id. at p. 554.) A “‘threat by a third person against a ... witness is relevant only if the 999defendantis linked in some way to the making ofthe threat.’” (Cox v. State, supra, 422 N.E.2dat p. 362,italics in the original; quoting 1 Wharton’s Criminal Evidence (13" ed. C. Torcia 1972) § 217.)'” “Thus, evidence of threats made by unidentified third persons usually lacks a sufficient connection to the defendant to render them admissible. Barring such a showing, the highly prejudicial nature of such testimony requires its exclusion.” (Jbid., italics in the original, footnote omitted.) This foundation is necessary because “a criminal defendantis the primary individual who could benefit from the bribing or absence of a witness who mighttestify against him,” and “the inference is strong that he has procured these acts when evidence of them is introducedat his trial.” (Keyser v. State (Ind. Ct. App. 1974) 312 N.E.2d 922, 924.) “[T]hreat evidence has extremely limited probative value towards credibility, unless the evidence bears directly on a specific issue regarding the threatened witness.” (United States v. Thomas, supra, 86 F.3d at p. 654.) “It has been held to be an abuseofdiscretion for the trial court to admit such evidence solely for the purposeofreflecting on the general credibility and bias of the 5 “Evidence should... be excludedif it involves threats by third parties that the prosecution cannot show the defendant knew aboutor authorized.” (1 Whatorn’s Criminal Evidence (15" ed. 1997) § 4:13, p. 327.) -216- witness.” (Ebron v. United States, supra, 838 A.2d at p. 1148.) In Dudley v. Duckworth, supra, 854 F.2d 967, the Seventh Circuit granted federal habeasrelief to a state prisoner who had been convicted followinga trial in which the prosecutorelicited testimony from a witness on direct examination regarding threats against the witness made by unknownindividuals. (/d. at pp. 969-974.) After the witness stated he was nervous anddid notfeel up to testifying, the prosecutor asked whyhefelt that way. The witness stated he and his mother had received threatening phonecalls the previous evening from an unknownindividual. (/d. at p. 973.) Defense counsel requested a sidebar conference and moved for a mistrial. The prosecutorjustified the questioning by asserting a need to inquire concerning the demeanorofthe witness. Thetrial court allowed the testimony to stand. (/d. at pp. 973-974.) The Seventh Circuit concluded the admission of the threat evidence violated the defendant’s right under the Fourteenth Amendmentto a fundamentally fair trial. (/d. at pp. 970- 972.)'*° The evidence deprived the defendantofhis right to present his “defense to a jury free from ‘evidential harpoons.’” (/d. at p. 972.) The court explained the “threat testimony could only reflect adversely on the [defendant] even though the 126 “1Inder the Due Process Clause of the Fourteenth Amendment, criminal prosecutions must comport with prevailing notions of fundamental fairness.” (California v. Trombetta (1984) 467 U.S. 479, 485; accord, Crane v. Kentucky (1986) 476 U.S. 683, 690.) -217- threats were not traced to him ..., except by innuendo.” (/d. at p. 971.) Thus, the court granted relief, despite the fact that the evidence of the defendant’s guilt was “impressive.” (Id. at p. 972.) D. The Inflammatory and Prejudicial Effect ofThreat Evidence “[T]hreats ... constitute a striking example of evidence that appeals to the jury’s sympathies, arouses its sense of horror, provokesits instinct to punish, or otherwise may causea jury to base its decision on something other than established propositions in the case.” (United States v. Guerrero (3d Cir. 1986) 803 F.2d 783, 785, internal quotation marks omitted.) “Such evidence becomesso prejudicial to a defendant that no jury could be expected to apply it solely to the question ofthe credibility of the witness before it and not to the substantial prejudice of the defendant.” (Dudley v. Duckworth, supra, 854 F.2d at p. 970 internal quotation marks omitted.) Thus, “evidence of threats against a witness is recognized as having a great potential for prejudice to the accused.” (Ebron v. United States, supra, 838 A.2d at p. 1148.) “While threats made bythird parties may have some probative value in repairing a credibility problem with a witness, such evidence may be extremely prejudicial in that the jury may wrongly assumethat the defendant made the threats or that associates ofthe defendant did so at the defendant’s behest.” (State v. Clifton (Minn. 2005) 701 N.W.2d 793, 797, italics added, internal quotation -218- marks omitted.) “This type of evidenceis so prejudicial that no jury can be expected to apply it solely to the question of the credibility of the witness, and notto the guilt of the defendant, and therefore, a trial court’s admonishmentto the jury or curative instruction will not serve to removethe resulting prejudice.” (Scifres-Martin v. State (Ind. Ct. App. 1994) 635 N.E.2d 218, 220; Dudley v. Duckworth, supra, 854 F.2d at p. 970 [“instruction to the jury to disregard it was not sufficient to expiate its effect’’].) E. Analysis By allowing the prosecution to present the threat/intimidation evidence in this case, without any nexus being established between Mr. Sandoval and the purported threats, and without any instruction limiting the purposes for which the evidence could be considered, other than that the jury was not to presume the threat wasattributable to Mr. Sandoval (6 RT 1160-1161), the trial court abused its discretion and rendered Mr. Sandoval’s trial fundamentally unfair.'*7 Even though the prosecutordid not attempt to directly link the threat to Mr. Sandoval, the prosecutor’s questioning insinuated that the threat was conveyed to Angela Estrada by a memberofthe street gang to which Mr. Sandoval belonged: "7 As in Dudley v. Duckworth, supra, 854 F.2d at pp. 970-972,the erroneous admission ofthe threat evidence in the instant case violated Mr. Sandoval’s basic right under the Fourteenth Amendmentto fairtrial. -219- Although Ms. Estrada denied the threat was made by a B.P. memberthefirst two times the prosecutor asked if the threat came from B.P. (6 RT 1161-1162), the prosecutor persisted, asking whether she had previously told him and detectives that the threat had been made by “someonein Barrio Pobre.” (6 RT 1161.) Ms. Estrada answered: “Someone told me, you know. They didn’ttell me directly. Someonehadsaid, you know,we... saw the paperwork[.] And you said this and you said that. [{] That’s all that was said.” (6 RT 1162.) Because the foregoing exchange suggests the threat was made by a B.P. member, the jury would have - naturally assumed the threat was madeby “associates” of Mr. Sandoval’s and that it was doneat his behest. (State v. Clifton, supra, 701 N.W.2d at p. 797.)'% “[O]nce there is a finding of a denialof a fairtrial, it is difficult to envision how such anerror could be considered ‘harmless.’” (Lesko v. Owens, 881 F.2d 44, "8 Although Ms. Estrada neverdirectly stated that a B.P. member had threatened her, the prosecutor’s “line of questioning that repeatedly incorporate[d] inadmissible evidence”to that effect was “just as improper as the direct admission of such evidence.” (United States v. Sine (9" Cir. 2007) 493 F.3d 1021, 1031; see Douglas v. Alabama (1965) 380 U.S. 415, 419 [“[a]lthough the Solicitor’s reading of [the witness’s] alleged statement, and [the witness’s] refusals to answer, were not technically testimony, the Solicitor’s reading may well have been the equivalent in the jury’s mindoftestimonythat [the witness] in fact made the statement”’].) “[I]ncorporating inadmissible evidence into questioning can constitute prosecutorial misconduct.” (Sine, supra, 493 F.3d at p. 1032, fn. 8.) “It is improperunderthe guise of artful ... examination,to tell the jury the substance of inadmissible evidence.” (United States v. Sanchez (9" Cir. 1999) 176 F.3d 1214, 1222, internal quotation marks omitted.) -220- 49 n. 7 (3d Cir. 1989), cert. den. (1990) 493 U.S. 1036.) Thus, based upon the prejudicial violation of Mr. Sandoval’sbasic rightto a fair trial occasioned by the court’s erroneous admission of evidencethat a witness called by the prosecution had beenthreatened by an unidentified third person associated with Mr. Sandoval’s gang, Mr. Sandovalis entitled to relief. (People v. Perez, supra, 169 Cal.App.2d at pp. 476-479; People v. Gilliland, supra, 39 Cal.App.2d at pp. 255- 257, 264-265; Ebron v. United States, supra, 838 A.2d at pp. 1146-1151; Dudley v. Duckworth, supra, 854 F.2d at pp. 969-974; Cox v. State, supra, 422 N.E.2d at pp. 360-363; Keyser v. State, supra, 312 N.E.2d at pp. 567-570.) Thetrial court’s admonition to the jury was inadequate to expiate the unfairly prejudicial effect of the evidence. (Dudley, supra, 854 at p. 970; Cox, supra, 422 N.E.2d at p. 362; Keyser, supra, 312 N.E.2d at p. 924.) The trial court merely admonished the jury that the prosecutor’s questioning did not imply the threat to Ms. Estrada was connected to Mr. Sandovaland that the jury was not to assume otherwise. (6 RT 1160-1161.) This instruction preceded the evidence and innuendo presented by the prosecutor that the threat came from B.P. Such evidence and innuendo squarely contradicted the court’s admonition and undermined anyefficacy the admonition mayhavehad. /// -221- VII. THE TRIAL COURT COMMITTED PREJUDICIAL CONSTITUTIONAL ERROR BY REJECTING MR. SANDOVAL’S REQUEST TO INSTRUCT THE JURY PURSUANT TO CALJIC NO. 2.01 AND/OR CALJIC NO.2.02. In addition to the insufficiency of the State’s evidence on the issue of premeditation and deliberation (ante, pp. 136-162), the impropriety ofthe trial court’s admission of “expert” opinion testimony onthat issue (ante, pp. 162-187), and the prosecutor’s reliance on erroneously admitted hearsay evidence in connection with that issue (ante, pp. 188-207), the trial court erroneously rejected a defense request for jury instructions concerning limitations on the extent to which circumstantial evidence can be relied upon to support a finding of deliberation and premeditation. (10 RT 1925-1931.) Independently, and in conjunction with the other errors discussed herein,the trial court’s instructional omission in this regard constituted prejudicial error. This error necessitates reversal of the first degree murder conviction. A. Factual Background During the guilt phase jury instruction conference, the parties discussed jury instructions concerning circumstantial evidence as to Mr. Sandoval’s mentalstate in connection with the murder charge. (10 RT 1925-1931.) The defense asked the ~222- trial court to instruct the jury pursuant to CALJIC No. 2.01!” and CALJIC No. 2.02.'° (10 RT 1925-1926, 1931.) The prosecutor objected to the court delivering 9 CALJIC No. 2.01 provides: “However, a finding of guilt as to any crime may notbe based on circumstantial evidence unless the proved circumstances are not only (1) consistent with the theory that the defendantis guilty of the crime, but (2) cannot be reconciled with any otherrational conclusion.[§]] Further, each fact whichis essential to complete a set of circumstancesnecessary to establish the defendant’s guilt must be proved beyond a reasonable doubt. In other words, before an inference essential to establish guilt may be found to have been proved beyond a reasonable doubt, each fact or circumstance on whichthe inference necessarily rests must be proved beyond a reasonable doubt.[{]] Also,if the circumstantial evidence[as to any particular count] permits two reasonable interpretations, one of which points to the defendant’s guilt and the otherto [his] [her] innocence, you must adopt that interpretation that points to the defendant’s innocence,andreject that interpretation that points to [his] [her] guilt. [{] If on the other hand, oneinterpretation of this evidence appears to you to be reasonable and the other interpretation to be unreasonable, you must accept the reasonable interpretation and reject the unreasonable.” (Brackets in the original, except bracketed paragraph-break symbols.) '0 CALJIC No. 2.02 provides: “The [specific intent] [or] [mental state] with which an act is done may be shownbythe circumstances surrounding the commission of the act. However, you maynot[find the defendant guilty of the crime charged [in Count[s] , , and _], [or] [the crime[s] of , , , which[is a] [are] lesser crime[s]],] [or] [find the allegation to be true,] unless the proved circumstancesare not only (1) consistent with the theory that the defendant had the required [specific intent] [or] [and] [mental state] but (2) cannot be reconciled with any otherrational conclusion.[{] Also,if the evidenceas to [any] [specific intent] [or] [mental state] permits two reasonable interpretations, one of which points to the existence of the [specific intent] [or] [mental state] and the other to its absence, you must adoptthat interpretation whichpoints to its absence. If, on the other hand, one interpretation of the evidenceasto the [specific intent] [or] [mental state] appears to you to be reasonable and the otherinterpretation to be unreasonable, you must accept the reasonableinterpretation and reject the unreasonable.” (Brackets in the original, -223- either instruction to the jury, contending the case “doesnot rest on circumstantial evidence,” because Mr. Sandoval’s confession purportedly “acknowledge[d]” the crimeitself and the state of mind for the crime. (10 RT 1925-1926.) Defense counsel argued that the prosecution’s expert opinion testimony had been offered as circumstantial evidence on the issue of deliberation and premeditation, and that the presenceor absence of deliberation and premeditation was “the main issue of the case.” (10 RT 1926-1927, 1929-1931.) Thetrial court disagreed with the defense, proclaiming: “This is not a circumstantial evidence case by anystretch of the imagination.” (10 RT 1927.) The court asserted that the expert opinion testimony pertained only to gang methodologyand did not constitute circumstantial evidence on the question ofdeliberation and premeditation. (10 RT 1929-1930.)"?! Further, the court noted that neither CALJIC No. 2.01 nor CALJIC No. 2.02 need be given in a case in which “the prosecution does not substantially except bracketed paragraph-break symbol.) '5! However, as discussed above, the two gang experts called by the prosecution testified that Mr. Sandoval had taken the CAR-15 to Lime Avenueas part of a “methodical”plan not only to provide coverfor his fellow gang members in their planned assault on Toro,butalso to “take on” any police officers who might happen uponsceneandinterfere with the planned gang hit. (9 RT 1811- 1814, 1893-1894, 1898-1900.) The court ordered the jury to disregard the testimony onthis subject offered by one ofthe gang experts (9 RT 1814-1815), but allowed the testimonyofthe other expert to stand. (9 RT 1893-1894, 1898- 1906.) -224- rely on circumstantial evidenceto proveguilt....” (10 RT 1926-1927.) The court refusedto instruct the jury pursuant to either CALJIC No. 2.01 or CALJIC No. 2.02. (10 RT 1931.) Defense counsel 1) pointed out that all guilt phase issues other than Mr. Sandoval’s mental state had been conceded in the defense opening statement, 2) stressed that Mr. Sandoval’s mental state was going to be the only issue in the guilt phase closing argument presented by the defense, and 3) asserted that the court’s refusal to give either of the requested instructions violated Mr. Sandoval’s dueprocessrights by limiting counsel’s “ability to argue mentalstate....” (10 RT 1931.) Ample circumstantial evidence germane to Mr. Sandoval’s mental state was presented to the jury during the guilt phase: Rascal wrote notes about B.P. members not killing enough people. ( RT 1398, 1403; 9 RT 1889; People’s Exhibit 26.) The prosecutor insinuated that the content of those notes was imparted to B.P. members at Lazy’s homeduring the B.P. meeting several hours prior to the homicide (6 RT 1144; 10 RT 2028), despite the fact that there was no testimony about what had beenstated during the meeting. Based uponthis circumstantial evidence, the prosecutor formulated an argument that, when Mr. Sandovalshot the detectives, he had adopted the mental -225- state reflected in Rascal’s notes, that the seeds of premeditation and deliberation had beenplanted at the B.P. meeting (10 RT 2028), and that although the intended target of the B.P. assault at Lime Avenue “quickly” changed from Toroto the detectives, the premeditation and deliberation had persisted in Mr. Sandoval’s mind. (10 RT 2028, 2032.) The prosecutor posed a hypothetical question to gang expert Richard Valdemar. The prosecutor asked the gang expert to assumethe established facts leading up to the incident on Lime Avenue — the B.P. meeting at Lazy’s home, the subsequent E.S.P. drive-by shooting at the B.P. alleyway hangout in Compton, and the attempt by five B.P. membersto retaliate by arming themselves and heading over to Toro’s residence. (9 RT 1891-1893.) The prosecutor then asked the expert to give his opinion asto “how the assault would be carried out” and what the B.P. “objective” was. (9 RT 1892-1893.) The expert testified that Mr. Sandoval andhis fellow B.P. gang members “deploy[ed] in a group,like a military unit” at Lime Avenue. With the CAR-15, Mr. Sandovaltook “a position of advantage” where he could either “cover”his fellow gang members as they attempted to get Toro out of his home or“shoot at” any police whointerrupted the planned gang hit. (9 RT 1893-1894.) Relying on the inferences drawn by the expert about the presumed methodand objective of Mr. Sandoval and his cohorts, -226- the prosecutor argued to the jury that, in gang hits like the one planned against Toro in this case, gang members “always consider law enforcement’s potential presence....” (10 RT 2055.) Finally, the prosecutor presented evidence that the murder weapon wasa semi-automatic gun. (8 RT 1693.) Mr. Sandovalfired 28 shots. (6 RT 1126- 1127, 1265; 7 RT 1432-1437; 8 RT 1666, 1669-1670.) Therefore, he pulled the trigger 28 times. (8 RT 1660, 1669-1670.) The prosecutorrelied upon this evidence concerning the gun as circumstantial evidence of Mr. Sandoval’s mental state at the time of the shooting, arguing to the jury that the 28 shots revealed malice, premeditation, and deliberation. (10 RT 2031.) B. Standard ofReview “The independentor de novo standard of review is applicable in assessing whetherinstructions correctly state the law....” (People v. Posey (2004) 32 Cal.4th 193, 218, cert. den. sub nom. Posey v. California (2004) 542 U.S. 909; United States v. Smith (9" Cir. 2009) 561 F.3d 934, 938 (en banc), cert. den. (2009) 130 S.Ct. 445.) Specifically, a claim that a trial court failed to instruct on applicable principles of law is reviewed de novo. (People v. Berryman (1993) 6 Cal.4th 1048, 1089, disapproved on other grounds in People v. Hill (1998) 17 Cal.4th 800, 823, fn. 1.) -227- C. Legal Authority Regarding a Trial Court’s Obligation to Instruct the Jury Concerning Circumstantial Evidence Relating to the Mental State ofPremeditation and Deliberation 1. Premeditation and Deliberation Can Seldom, IfEver, Be Proven Without Circumstantial Evidence. “Tn every crime or public offense there must exist a union, or joint operation of act and intent, or criminal negligence.” (Penal Code section 20.) “The proof of criminalintent ... may be either direct or circumstantial.” (1 Witkin & Epstein, California Criminal Law (3d ed. 2000) Elements § 3, p. 201.) “However, while the defendant maytestify to his or her own lack of criminalintent[citation],it is rare that direct evidence of criminalintent is available to the prosecution.” (/bid.) Rather, “[t]he intent or intention is manifested by the circumstances connected with the offense.” (Penal Code section 21, subdivision (a).) Premeditation and deliberation are mentalstates. (People v. Coddington (2000) 23 Cal.4th 529, 583, disapproved on another point in Price v. Superior Court (2001) 25 Cal.4th 1046, 1069, fn. 13.) “Evidence of a defendant’s state of mind is almost inevitably circumstantial....” (People v. Bloom (1989) 48 Cal.3d 1194, 1208; accord, People v. Matson (1974) 13 Cal.3d 35, 41 [“intent must usually be inferred from all of the facts and circumstancesdisclosed by the evidence, rarely being directly provable”]; People v. Pre (2004) 117 Cal.App.4th -228- 413, 420 [“Intent is rarely susceptible of direct proof and usually must be inferred from the facts and circumstances surrounding the offense.”]; State v. Leake (Minn. 2005) 699 N.W.2d 312, 319 [“Premeditation is a state of mind and, thus, generally proven through circumstantial evidence.”]; State v. Thompson (2003) 204 Ariz. 471, 479 [65 P.3d 420, 428] [“Premeditation can, of course, be proven by circumstantial evidence; like knowledgeorintention,it rarely can be proven by any other means.”]; McFarland v. State (1999) 337 Ark. 386, 393 [989 S.W.2d 899, 903] [“Because intent can rarely be proved by direct evidence, a jury may infer premeditation and deliberation from circumstantial evidence....”]; Johnson v. Singletary (M.D.Fla. 1995) 883 F.Supp. 1535, 1539 [“a defendant’s premeditated intent is seldom subject to direct proof”]; State v. Kirch (Minn. 1982) 322 N.W.2d 770,773 [“It is well-established that, because premeditation is a product of the mind,it is incapable of direct proof.”]; Briano v. State (1978) 94 Nev. 422, 425 [581 P.2d 5, 7] [“Evidence ofpremeditation and deliberation is seldom direct.”}; Hobson, Reforming California’s Homicide Law (1996) 23 Pepp. L. Rev. 495, 517 [“Outside of circumstantial means ofproving premeditation,it is extremely difficult to set guidelines for how muchreflection is enough to demonstrate premeditation becauseneither courts nor jurors can read a defendant’s mind.”].) // 1 -229- 2. The Trial Court Must Instruct the Jury that Circumstantial Evidence Can Only Support a Conviction or Particular Degree ofGuilt Ifthe Inferences Reasonably Drawnfrom the Evidence Rule Out Innocenceor a Lesser Degree ofGuilt. “Thelaw has long recognized that particular care must be taken when relying on circumstantial evidence.” (People v. Lenix (2008) 44 Cal.4th 602, 627, cert. den. sub nom. Lenix v. California (2009) 129 S.Ct. 1009.) To justify a conviction on circumstantial evidence, “‘the facts and circumstances must not only be entirely consistent with the theory of guilt but must be inconsistent with any other rational conclusion.’” (People v. Bender, supra, 27 Cal.2d at p. 175.) This rule is “a most important rule governing the use of circumstantial evidence.” (Ibid.) “In unequivocal languageit should be declared to the jury in every criminal case wherein circumstantial evidenceis received.” ([bid.) “In a criminal case wherecircumstantial evidenceis substantially relied upon for proofof guilt it is obviousthat ‘instructions on the general principles of law pertinent to such cases’ necessarily include adequate instructions on the rules governing the application of such evidence.” (Ibid.) Therationale behindthe ruleis that, unlike direct evidence, circumstantial evidence doesnot directly prove the fact in question. Instead, circumstantial evidence may support a logical conclusion that the disputed fact is true. But information may often be open to more than one reasonable deduction. Thus, care must be taken not to accept one reasonable interpretation to the exclusion of other -230- reasonable ones. (People v. Lenix, supra, 44 Cal.4th at p. 627.)!°* “The trial court mustinstruct on general legal principles closely related to the case.” (People v. DePriest (2007) 42 Cal.4th 1, 50; citing People v. Breverman (1998) 19 Cal.4th 142, 154.) “This obligation includes the duty to instruct on the effect to be given circumstantial evidence ... when circumstantial evidenceis substantially relied on for proofof guilt.” (People v. Wiley (1976) 18 Cal.3d 162, 174; citing People v. Yrigoyen (1955) 45 Cal.2d 46, 49.) A defendant has“a right to an instruction on circumstantial evidence based upon [his] own theory ofthe case....” (People v. Hatchett (1944) 63 Cal.App.2d 144, 153.) In certain circumstances,a trial court’s refusal to instruct a jury pursuant to CALJIC No. 2.02 will not be errorif the court does instruct the jury pursuantto CALJIC No. 2.01, which is “the moreinclusive instruction on sufficiency of circumstantial evidence.” (People v. Marshall (1996) 13 Cal.4th 799, 849.) CALJIC No.2.02 “is designed for use instead ofCALJIC [No.] 2.01 in a specific ' “Circumstantial evidence involves a two-step process: presentation of the evidence followed by a determination of what reasonable inference or inferences may be drawn from it. By contrast, direct evidence stands on its own. It is evidence that does not require an inference.” (People v. Anderson (2007) 152 Cal.App.4th 919, 931.) -231- intent or mental state case in which the only elementofthe offense whichrests substantially or entirely on circumstantial evidence is the element of specific intent or the mentalstate.” (People v. Bloyd (1987) 43 Cal.3d 333, 352,italics in the original.) “The ‘mental state’ contained in CALJIC No. 2.02 refers to a specific mental state, analogousto a specific intent, which is an elementofthe criminal offense such as premeditation.” (People v. Swanson (1983) 142 Cal.App.3d 104, 110; citing People v. Wiley, supra, 18 Cal.3d at p. 174.) With regard to eeecircumstantial evidence, CALJIC No. 2.02 instructs jurors “‘to reject unreasonable interpretations of the evidence and to give the defendantthe benefit of any reasonable doubt.’” (People v. Hines (1997) 15 Cal.4th 997, 1050-1051; quoting People v. Jennings (1991) 53 Cal.3d 334, 386.) Cautioning the use of circumstantial evidence in criminal cases is a centuries-old idea. The seventeenth-century English courts allowed for the use of circumstantial evidence only when necessary, viewing it with great caution, yet recognizing its possible sufficiency to convict. Eighteenth century jurisprudencereflected a reverse in the value attributable to direct and circumstantial evidence. Determining that “circumstances cannotlie,” courts took the view that although circumstantial evidence should be viewed with caution, it may have greater probative value than direct evidence, for people maylie, but circumstances cannot. Still, limitations on the use of circumstantial evidence persisted. In the nineteenth century, William Wills, a revered nineteenth century jurist, noted that “in order to justify the inference of legal guilt from circumstantial evidence, the existence of -232- the inculpatory facts must be absolutely incompatible with the innocenceofthe accused, and incapable of explanation upon any other reasonable hypothesis than that of his guilt.” Thus, rules developed to safeguard the accused from unjust conviction caused by the misapplication of circumstantial evidence. (Comment, “For It Must Seem Their Guilt”: Diluting Reasonable Doubt by Rejecting the Reasonable Hypothesis ofInnocence Standard (2007) 53 Loy.L. Rev. 217, 223-224, footnotes and internal brackets omitted.) [C]ircumstantial evidenceis as nothing unless the inferencesto be drawn from the circumstancesare logically compelling. The danger,therefore, with the use of circumstantial evidenceis that of logical gaps — thatis, subjective inferential links based on probabilities of low grade or insufficient degree — which,if undetected, elevate coincidence and, therefore, suspicion into permissible inference. (People v. Cleague (1968) 22 N.Y.2d 363, 367 [239 N.E.2d 617, 619, 292 N.Y.S.2d 861, 865.].) In People v. Dick (1867) 32 Cal. 213, the defendant was convicted by jury of first degree murder and sentenced to death. (/d. at p. 214.) Although the evidence against the defendant wascircumstantial, the trial court had refused to instruct the jury that the circumstantial evidence could not support a guilty verdict ocunless it “‘exclude[d] to a moral certainty every other hypothesis but the single one of guilt....”” (/d. at pp. 215-216.) Based uponthis “fatal error[,]” this court reversed the judgmentof conviction. (/bid.; accord People v. McClain (1931) 115 -233- Cal.App. 505, 510-512 [trial court’s failure to instruct that circumstantial evidence must be inconsistent with innocence was prejudicial error].) The leading nineteenth century case concerning circumstantial evidenceis Commonwealth v. Webster (1850) 59 Mass.(5 Cush.) 295. (Rosenberg & Rosenberg, “Perhaps What Ye Say Is Based Only on Conjecture”— Circumstantial Evidence, Then and Now (1995) 31 Hous. L.Rev. 1371, 1391 (hereafter Rosenberg & Rosenberg.) In that case, the court explained that, when circumstantial evidenceis relied upon, “great care and caution ought to be used in drawing inferences from provedfacts.” (Webster, supra, 59 Mass.at p. 312.) “[T]he circumstances taken together should be of a conclusive nature and tendency, leading on the wholeto a satisfactory conclusion, and producing in effect a reasonable and moral certainty, that the accused ... committed the crime charged.” (/d. at p. 319.) “It is essential ... that the circumstances... exclude every other hypothesis.” (Jbid.) “Courts throughout the United States, both federal and State, adopted Webster’s view, requiring that the jury be instructed that circumstantial evidence must exclude reasonable possibilities of innocence.” (Rosenberg & Rosenberg, supra, 31 Hous. L.Rev.at p. 1392.) /// /// -234- D. Constitutional Ramifications'*” “Incorrect or inconsistent instructions on the element of specific intent require a reversal unless the error is deemed harmless beyond a reasonable doubt.” (People v. Lizarraga (1990) 219 Cal.App.3d 476, 482; citing People v. Lee (1987) 43 Cal.3d 666, 676.) In Lizarraga, the Court of Appeal reversed a conviction due to thetrial court’s failure to accurately instruct the jury pursuantto the principles underlying CALJIC No. 2.02. (Lizarraga, supra, 219 Cal.App.3d at pp. 481-482.) “While a jury is free to choose among reasonable constructionsofthe evidence, a verdict cannotbe affirmed if it is based on circumstantial evidencethat is as consistent with innocence as with guilt.” (United States v. Davis (5" Cir. 2000) 226 F.3d 346, 354.) Neither the statement in an instruction that the guilt of the defendant must be established beyond a reasonable doubt, nor the statement that as between two opposing reasonable inferences the one whichis consistent with innocence mustbe preferred to the one tending to show guilt, satisfies the right of the defendant to have the jury instructed that where circumstantial evidenceis relied upon by the People it must be irreconcilable with the theory of innocence in order to furnish a sound basis for conviction. (People v. Bender, supra, 27 Cal.2d at pp. 175-176; quoting People v. Hatchett, '33 As noted above, defense counsel objected on due process groundsto the trial court’s refusal to instruct the jury concerning the limitations on reliance upon circumstantial evidence. (10 RT 1931.) -235- supra, 63 Cal.App.2d at p. 155; but see People v. Rogers (2006) 39 Cal.4th 826, 886 [“Insofar as the federal Constitution itself does not require courts to instruct on the evaluation of circumstantial evidence where,as here, the jury was properly instructed on reasonable doubt[citations], defendant’s claim necessarily rests on the asserted arbitrary denial of a state-created liberty interest.”].) E. Analysis The only defense that Mr. Sandoval mounted during the guilt phase wasthat his intentional shooting of Detective Black wasnotfirst degree murder becauseit wasnotcarried out with premeditation and deliberation. Indeed, this was the only line of defense urged by Mr. Sandoval’strial counsel during argumentto the jury in the guilt phase. (10 RT 2045-2050.) Thetrial court prejudicially erred by failing to instruct the jury that the circumstantial evidence bearing on Mr. Sandoval’s mental state could only support a first degree verdictif the only rational interpretation of that evidence wasthat Mr. Sandovalhad acted with premeditation and deliberation. 1. Error There is no direct evidence in the record as to whether Mr. Sandoval acted with premeditation and deliberation. He did not testify, and he did not state during his confession that he had acted with premeditation and deliberation. (At the time -236- of his confession, he was an 18-year-old street gang member whohad dropped out of high school. He would not have been competent to assess whether his own mental state had involved premeditation and deliberation.) Thus,as in nearly all cases involving factual issues concerning intent, the evidence germaneto the issue wascircumstantial. (People v. Bloom, supra, 48 Cal.3d at p. 1208 [“Evidenceofa defendant’s state of mind is almost inevitably circumstantial....”].) Indeed, some courts have gonesofar as to say that premeditation is a mental state “incapable of direct proof.” (State v. Kirch, supra, 322 N.W.2d at p. 773.) The circumstantial evidencerelied upon by the prosecutor concerning Mr. Sandoval’s mentalstate in this case has been summarized abovein detail. Becausethe evidence on the issue of premeditation and deliberation was circumstantial, the trial court erred in failing to instruct the jury pursuantto either CALJIC No. 2.01 or CALJIC No. 2.02. (People v. Wiley, supra, 18 Cal.3d at p. 174; People v. Yrigoyen supra, 45 Cal.2d at p. 49; People v. Bender, supra, 27 Cal.2d at p. 175; People v. Dick, supra, 32 Cal. at pp. 215-216; People v. McClain, supra, 115 Cal.App. at pp. 510-512.) 2. Prejudice Whether reviewed under the Chapman standard or the Watson standard, the trial court’s erroneousfailure to instruct the jury concerning principles applicable -237- > o A to circumstantial evidence cannot be deemed harmless. The road to the jury’s first degree murderverdict in this case was paved with multiple errors and irregularities. Not only did the trial court improperly allow the prosecution to present gang expert testimony concerning Mr. Sandoval’s purported mental state, but also the prosecutor urged an untenable transferred premeditation theory during closing argument. Furthermore, the evidence regarding Mr. Sandoval’s mental state, which principally, if not exclusively, consisted of circumstantial evidence, revealed that Mr. Sandoval rashly and impulsively shotat police during the course of rapidly evolving and unplanned events. To say the least, the evidence was not irreconcilable with the defense position that Mr. Sandoval acted without premeditation and deliberation. In this context, the trial court’s failure to instruct the jury concerning the limitations on circumstantial evidence, which would only have inured to Mr. Sandoval’s benefit, cannot rationally be characterized as non- prejudicial. Significantly, during deliberations, the jury sent out a note indicating that it was struggling with the premeditation issue. (10 RT 2082; 5 CT 1179.) Thus, no reviewing court can say with any measure of confidencethat the jury in this case would not been unaffected by appropriate circumstantial evidence instructions from thetrial court. Indeed, such instructions would have bolstered defense counsel’s argument that a second degree verdict, rather than first degree -238- verdict, was warranted in this case. IX. THE SPECIAL CIRCUMSTANCEFINDINGS MUSTBE SET ASIDE DUE TO THE TRIAL COURT’S FAILURE TO INSTRUCT THE JURY CONCERNING CIRCUMSTANTIAL EVIDENCE PERTAINING TO THE SPECIAL CIRCUMSTANCES. For many of the samereasonsthatthe trial court’s failure to instruct the jury pursuant to CALJIC No. 2.01 and/or CALJIC No. 2.02 was prejudicially erroneous, the court’s failure to instruct the jury pursuant to CALJIC No.8.83 and/or CALJIC No.8.83.1 was prejudicially erroneous with respect to the special circumstances foundtrue by the jury. A. Jury Instructions Concerning Evaluation ofCircumstantial Evidence Germaneto Special Circumstance Allegations CALJIC Nos. 8.83 and 8.83.1 are modelinstructions specifically tailored to the mannerin whichjurors are to use circumstantial evidence in determining the truth of special circumstance allegations. CALCRIM Nos. 704 and 705 are a substantively similar pair of model instructions. Like CALJIC No 2.01, CALJIC No.8.83 and CALCRIM No. 704 pertain to circumstantial evidence generally. And, like CALJIC No. 2.02, CALJIC No. 8.83.1 and CALCRIM No. 705 specifically pertain to circumstantial evidencerelating to mental state. /// -239- Trial courts have a sua sponte obligation to instruct juries on how to evaluate circumstantial evidence in cases involving circumstantial evidence. (People v. Bloyd, supra, 43 Cal.3d at p. 351; People v. Yrigoyen. supra, 45 Cal.2d at p. 49; People v. Bender, supra, 27 Cal.2d at pp. 175-176; Bench Notesto CALCRIM Nos.704 & 705.) Theneedto instruct a jury pursuant to CALJIC Nos. 8.83 and/or 8.83.1 can be obviated if the jury has already been instructed pursuant to CALJIC Nos.2.01 and/or 2.02. This is so, because these are essentially “duplicative” pairs ofjury instructions that “discuss|] the sufficiency of circumstantial evidence....” (People v. Hines, supra, 15 Cal.4th at p. 1051; accord, People v. Lewis (2001) 25 Cal.4th 610, 653.) B. The Trial Court Erred By Failing to Instruct the Jury Sua Sponte that Circumstantial Evidence Could Not Support True Findings on the Special Circumstance Allegations Unless the Circumstantial Evidence Was Irreconcilable With the Possibility that the Special Circumstance Allegations Were Untrue. In the instant case, despite the fact that circumstantial evidence was presented with respect to each of the four special circumstance allegations, the trial court did not instruct the jury that such evidence could not support true findings on the special circumstanceallegations unless the evidence was irreconcilable with the possibility that the special circumstanceallegations were -240- untrue. (See Bender, supra, 27 Cal.2d at pp. 175-176.) Because ofthis prejudicial instructional omission, the special circumstance findings mustbeset aside. Defense counsel did not request instructions patterned after CALJIC Nos. 8.83 and/or 8.83.1. However, in light of thetrial court’s refusal to instruct the jury pursuant to CALJIC Nos. 2.01 and/or 2.02 (10 RT 1926-1931), any such request would have beenfutile.'** In any event, as noted above, thetrial court had an duty to instruct the jury on how to evaluate the circumstantial evidence relating to the special circumstance allegations. For the same reasonsthat thetrial court’s failure to instruct the jury pursuant to CALJIC Nos. 2.01 and/or 2.02 constituted state law error and federal constitutional error, the trial court’s failure to instruct the jury pursuant to CALJIC Nos.8.83 and/or 8.83.1 constituted both state law error and federal constitutional error. The jury found four special circumstanceallegations true — 1) the murder was committed to preventan arrest,'*> 2) the defendant knew the victim was an on- duty police officer,'** 3) the murder was committed by meansoflying in wait,'*’ ' As noted above, the trial court proclaimed:“This is not a circumstantial evidence case byanystretch of the imagination.” (10 RT 1927.) 5 Penal Codesection 190.2, subdivision (a)(5). 6 Penal Code section 190.2, subdivision (a)(7). '57 Penal Code section 190.2, subdivision (a)(15). -241- and 4) the murder wascarried out to further the activities of a criminalstreet gang.'** (10 RT 2088-2089; 5 CT 1277-1280, 1284-1285.) Circumstantial evidence waspresented duringthetrial and necessarily relied upon by the jury with respect to each of these special circumstance allegations: L. Murderto Prevent Arrest The prosecution did present direct evidence that Mr. Sandovalkilled Detective Black in order to prevent Rascal from being arrested. Indeed, the prosecution played for the jury the audio tape of Mr. Sandoval’s recorded confession. (10 RT 1967-1968; People’s Exhibit 73.) During that confession, Mr. Sandoval stated he had shot the detective in order to prevent Rascal from being arrested. (2 CT 295-297.) A defendant’s confession to murderis direct evidence. (People v. Dunkle (2005) 36 Cal.4th 861, 928, disapproved on other grounds in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22; but see footnote 139, infra.) However, circumstantial evidence bearing on this subject was also adduced duringthe trial: First, Detective Delfin testified that as he and Detective Black approached Rascal immediately before the shooting, he (Detective Deflin) did not recognize Rascal (8 RT 1591), he suspected Rascal might be carrying a gun (8 RT 1568), and he simply plannedto go “talk” to Rascal to “[s]ee what[] [was] up[.]” '8 Penal Codesection 190.2, subdivision (a)(22). -242- (8 RT 1570.) Jurors could have inferred from the circumstances described by the detective’s testimonyin this regard that it would have appeared to Mr. Sandoval that the detectives were simply going to “talk” to Rascal rather than place him underarrest. Second, according to one of the detectives present during Mr. Sandoval’s confession, Mr. Sandoval gave police two “untrue” accounts of the shooting before giving a “factual” accountin the third go-round. (10 RT 1964.) Jurors could have inferred from the circumstance that Mr. Sandoval had given two false accounts to police that his third version of events was not accurate in all of its details. 2. Murderofa Victim Known to Be an On-Duty Police Officer Penal Code section 190.2, subdivision (a)(7) requires proof that the defendant knew or reasonably should have knownthat the officer was “engaged in the performanceofhis or her duties”at the time of the homicide. Although Mr. Sandoval confessed he knew before he openedfire that the occupants of the vehicle upon which he openedfire were police officers (2 CT 316-320), he did not State he knew they were on duty. Whether he knew they were on duty could only be inferred from circumstantial evidence. How could Mr. Sandoval have knownif the detectives were in the middle oftheir shift or if they had just gotten off duty and were on their way to get coffee? Only by drawing inferences from -243- ‘ F w a circumstantial evidence can one endeavorto get inside Mr. Sandoval’s mind to answerthat question. 3. Lying in Wait Nearthe end ofthe guilt phase, defense counsel argued the prosecution had failed to adducesufficient evidence to warrant a lying-in-wait jury instruction. (10 RT 1933-1934.) In response, the prosecutor madethe following comments, which reveal the prosecution’s lying-in-wait theory was based on inferences drawn from circumstantial evidence: The defendant[,] in his own statement],] says he observesthe police car whenit’s approximately two housesto the north of his [location], as it’s traveling south. When heobservesthe police officers, he conceals himself behind the vehicle that he arrived in in order that he not be seen bythe police officers that approach him.[§]] He continues to watch and wait in that concealed position to see whatit is the police officers are going to do. Asthe police officers continue down the street, according to the defendant’s own statement, he observes the police officers watching Rascal. [{]] He says he watchesthis go on, and only at that point in time, when he becomesconvinced the police officers are in fact going to stop Rascal; find the .45 caliber handgunthat he knowsis on Rascal’s person, and arrest him, does he decide that he should take action.[{] In taking action, he indicates he comes out from his point of concealment; directs his CAR-15 at unsuspecting police officers that he says never looked back, never saw him and never knew what hit them. [{] So I think the period of watching and waiting for an opportunetimeto act is not only present here, but it’s also the fact that he’s considering, deliberating, deciding what to do, how to doit, how to take them by surprise, if necessary, and when the circumstances unfold, and it becomes apparentto this defendantthat they are going to in fact contact andarrest his -244- homeboy,he decidesto act. (10 RT 1934-1935.) Obviously, the prosecutor did not know whether, at the time Mr. Sandoval wascrouched downbehindthe car, thoughts passed through his mind about waiting for an opportune timeto act and taking the officers by surprise. No one other than Mr. Sandoval wasprivy to the thoughts he entertained in those fleeting moments. In trying to glean Mr. Sandoval’s mental state, the prosecutor looked for clues in the circumstantial evidence, including statements Mr. Sandoval made.!*? [T]he lying-in-wait special circumstance[] ... requires proof of an intentional murder committed under circumstances which include (1) a concealmentofpurpose, (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. Lewis, supra, 43 Cal.4th at p. 508, internal quotation marks omitted.) For one to assess whether Mr. Sandoval had a mentalstate in the moments leading up to the shooting that entailed waiting for an opportunetimeto act and planning ofa surprise attack, one must engagein a processof inference pursuant '? “Tt is obvious that the classification of circumstantial and testimonial evidenceis not mutually exclusive;i.e., testimony may be direct evidence of one fact, but circumstantial evidence of another.” (1 Witkin, Cal. Evidence (4" ed. 2000) Circumstantial Evidence, § 2, p. 322.) -245- to which conclusions are drawn from evidenceofthe circumstances involved in the shooting. 4. Murderin Furtherance ofCriminal Street Gang Activities The gang-killing special circumstance requires proof of a killing by “an active participant in a criminal street gang” and proofthat the killing was “carried out to further the activities of the criminal street gang.” (Pen. Code, § 190.2, subd. (a)(22); CALCRIM No. 736; CALJIC No.8.81.22.) Proof of active gang participation requires a showing of “involvement with a criminal street gang thatis more than nominalor passive.” (People v. Castenada (2000) 23 Cal.4th 743, 747.) The prosecutor asked the jury in closing argument to infer Mr. Sandoval wasan active B.P. participant from circumstantial evidence such as videotaped footage of B.P. activities and the mannerin which the crime wascarried out. (10 RT 2038.) Proof that a crime wascarried out to “further the activities” of a gang requires a showingthat the crime advanced or promoted gangactivities. Indeed, the definition of “further”is: “To help forward,assist...; to promote...” “[T]o advance, makeprogress.” (VI Oxford English Dictionary (2d ed. 1989) p. 285.) Assessing whether Mr. Sandoval’s act of fatally shooting Detective Black “furthered,” rather than hindered, B.P.’s activities involves more of a judgment call than an evaluation of evidence. But to the extent it involves an evaluation of -246- evidence, the evidence germaneto that determination is necessarily circumstantial. No direct evidence was adduced that Mr. Sandoval’s shooting of Detective Black advance or promoted B.P.’s activities. During the penalty phaseretrial, the defense proffered evidence that the Mexican Mafia, which ultimately controls gangs such as B.P. (9 RT 1873-1874), had issued an edict prohibiting Hispanic street gang members from engaging in drive-by shootings. The prosecutor confirmed that the edict had been issued. (20 RT 4171-4172.) When the prosecutorresisted defense efforts to present this evidenceto the jury, defense counsel contendedthat the Mexican Mafia would not “sanction” a murderlike that involved in this case. The prosecutor objected to any evidence that the Mexican Mafia was “angry because [Mr. Sandoval] shot a cop and broughtattention to them.” (20 RT 4172.) Thus, Mr. Sandoval’s shooting of Detective Black may not have been “further[ed] the activities” of B.P. Rather, it may have been contrary to the gang’s goals. C. The Error Was Prejudicial. Reasonable inferences can be drawnthat 1) it did not appear to Mr. Sandovalthat the detectives were going to arrest Rascal, as opposed to merely making contact with him; 2) Mr. Sandoval did not know whetherthe detectives were “engaged in the performanceof[their] duties” at the relevant time; 3) Mr. -247- Sandoval did not watch the detectives for a substantial period of time, while waiting for an opportune time to act; and 4) Mr. Sandoval’s fatal shooting of Detective Black did not “further the activities” of B.P. Because these are reasonable inferences from the available circumstantial evidence, Mr. Sandoval would have benefitted from a jury instruction that the jury could not find the alleged special circumstancestrue “based on circumstantial evidence unless the provedcircumstance[s] [were] not only (1) consistent with the theory that [the] special circumstance[s] [were] true, but (2) [could not] be reconciled with any other rational conclusion.” (CALJIC No. 8.83; CALJIC No.8.83.1.) Had the jury been so instructed, it is at least reasonably probable that the jury would have found someorall of the special circumstance allegationsin this case not true. Thus, the erroneousinstructional omission cannot be deemed harmless. (People v. Watson, supra, 46 Cal.2d at p. 836.) A fortiori, the error cannot be deemed harmless under the more exacting Chapman harmlesserror standard. /// /// /// -248- X. UNLESS THE STATUTORY LANGUAGEOF THE LYING-IN- WAIT SPECIAL CIRCUMSTANCEIS INTERPRETED SO AS TO DISPENSE WITH THE CONSTITUTIONALLY REQUIRED NARROWING FUNCTION OF SPECIAL CIRCUMSTANCES, THE EVIDENCE WASINSUFFICIENT TO SUPPORT THE JURY’S LYING-IN-WAIT SPECIAL CIRCUMSTANCEFINDING. Pursuant to Penal Code section 190.2, subdivision (a)(15), the death penalty may be imposed upona defendant who “intentionally killed the victim by means of lying in wait.” (Italics added.) A former version of the statute required proof of an intentional killing “while” lying in wait. But, effective March 8, 2000 —just one monthprior to the homicide in this case — Proposition 18 (Stats. 1998,ch. 629, § 2) modified the language of Penal Code section 190.2, subdivision (a)(15) by replacing the word “while” with the term “by meansof.” In this case, althoughthetrial court could have instructed the jury based upon the statutory change brought about by Proposition 18, the court did not do so. Rather, the court gave the jury an instruction concerning the lying-in-wait special circumstance that used the word “while” instead of the term “by meansof.” Pursuant to CALJIC No.8.81.15, the court instructed the jury as follows: To find that the special circumstancereferred to in these instructions as murder while lying in wait is true, each one of the following acts must be proved: One,the defendant intentionally killed the victim; and two, the murder was committed while the defendant was lying in -249- wait. The term '‘!while lying in wait!”! within the meaning of the law of special circumstance[s] is defined as a waiting and watching for an opportunetimeto act together with a concealment by ambushor by someother secret design to take the other person by ... surprise. The lying in wait need not continue for any particular period of time providedthat it’s [sic.] duration is such as to show state of mind equivalent to premeditation or deliberation. Thus[,] for a killing to be perpetrated while lying in wait, both the concealment and watchful waiting as well as the killing must occur during the sameperiodorin an uninterrupted attack commencing nolater than the momentof concealmentends. If there’s a clear interruption separating the period of lying in wait from the period during which the killing takes place so that there’s neither an immediate killing nor a continuousflow of the uninterrupted lethal events, the special circumstanceis not proved. (10 RT 2012-2013; 5 CT 1231.) This court has stated that “[t]he requirements of lying in wait for first degree murder under Penal Codesection 189are ‘slightly different’ from the lying-in- wait special circumstance under Penal Code section 190.2, subdivision (a)(15)” and that “the special circumstance... contains the more stringent requirements.” (People v. Moon (2005) 37 Cal.4th 1, 22; quoting People v. Carpenter (1997) 15 Cal.4th 312, 388; quoting People v. Ceja (1993) 4 Cal.4th 1134, 1140, fn. 12.) In a concurring opinion in People v. Ceja, supra, 4 Cal.4th 1134, Justice Kennard observed: “Unlike first degree murder perpetrated by lying in wait, the ‘© This definition of lying in wait derives from People v. Morales (1988) 48 Cal.3d 527, 557. -250- lying-in-wait special circumstance must provide a meaningful basis for distinguishing capital and noncapital cases, so that the death penalty will not be imposedin an arbitrary or irrational manner.” (/d. at p. 1147; citing People v. Edelbacher (1989) 47 Cal.3d 983, 1023.) Special circumstances must serve “the critical narrowing function”of “separat[ing] defendants whose acts warrant the death penalty from those defendants whoare ‘merely’ guilty of first degree murder.” (Ibid. Thus, Penal Code section 190.2, subdivision (a)(15) is only constitutional if interpreted and applied to require proof above and beyond the proof required for lying-in-wait first degree murder. In Houston v. Roe (9"Cir. 1999) 177 F.3d 901, cert. den. (2000) 528 U.S. 1159, the Ninth Circuit observed: [T]he California legislature and courts have created a thin but meaningfully distinguishable line between first degree murder lying in wait and special circumstances lying in wait. [Citation.] First degree murderis statutorily defined as ‘murder which is perpetrated ' “To avoid the Eighth Amendment’sproscription against cruel and unusual punishment, a death penalty law must provide a meaningful basis for distinguishing the few cases in which the death penalty is imposed from the many cases in whichit is not.” (People v. Edelbacher, supra, 47 Cal.3d at p. 1023, internal quotation marks and brackets omitted; Godfrey v. Georgia (1980) 446 U.S. 420, 427 (plur. opn. of Stewart, J.); Furman v. Georgia (1972) 408 U.S. 238, 313 (conc. opn. of White, J.).) An aggravating circumstance must be foundto be present. The aggravating circumstance “must apply to only to a subclass of defendants convicted of murder[,]” and it “may not be unconstitutionally vague.” (Tuilaepa v. California (1994) 512 U.S. 967, 972.) -251- ~ by meansof... lying in wait.’ [Citation.] Special circumstance murder is statutorily defined as murder where the ‘defendantintentionally killed the victim while lying in wait. [Citation.] The distinction is found in the terms ‘while’ and ‘by meansof.’” (id. at pp. 907-908,ellipsis in the original.)'” Asdiscussed at pages 136-162, ante, the evidencein this case waslegally insufficient to support the first degree murder conviction due to the lack ofany competent evidence that Mr. Sandoval acted with deliberation and premeditation. A fortiori, the evidence waslegally insufficient to support the lying-in-wait special circumstancefinding, because the evidentiary showing necessary to support such a finding, underthe pre-Proposition 18 theory pursuant to whichthetrial court instructed the jury, is more stringent than that necessary to support a lying-in-wait ‘2 Good reason exists to question whether Proposition 18 left intact any distinction between the proof requirements for the lying-in-wait special circumstance and lying-in-wait first degree murder. (People v. Superior Court (Bradway) (2003) 105 Cal.App.4th 297, 307 [Proposition 18, adopted by the voters on March7, 2000, changed the word ‘while’ in the lying-in-wait special circumstance to ‘by meansof? so that it would conform with the lying-in-wait language defining first degree murderto essentially eliminate the immediacy requirement that case law had placed on the special circumstance.”]; id. at p. 312 (dis. opn. of, McDonald, Acting P.J.) [“In my view the adoption of Proposition 18, which eliminated the temporal distinction between lying in wait as a means of establishing premeditation for first degree murder... and lying in wait as a special circumstance permitting imposition of the death penalty ..., brought to fruition the concern Justice Kennard expressed in her concurring opinion in People v. Ceja[, supra,| 4 Cal.4th ... [at pp.] 1146-1147....”], footnote and parallel citations omitted.) -252- first degree murder verdict (People v. Moon, supra, 37 Cal.4th at p. 22; People v. Carpenter, supra, 15 Cal.4th at p. 388; People v. Ceja, supra, 4 Cal.4th at p. 1140, fn. 12), and the evidentiary showing necessary to support a lying-in-waitfirst degree murderverdict is either equivalent to or morestringent than the evidentiary showing necessary to support a first degree murder verdict on a theory of premeditation and deliberation. (People v. Ruiz, supra, 44 Cal.3dat p. 614.)'¥ Evenifthis court does not agree with Mr. Sandovalthat the evidence was insufficient to support the first degree murder conviction, the evidence was nevertheless insufficient to support the lying-in-wait special circumstance: Although Mr. Sandoval waslying in wait for Toro, he did not lie in wait for the detectives in front of Toro’s home on Lime Avenue. To the contrary, the detectives’ arrival on the scene was an unexpected, surprise occurrence. '8 With respect to lying-in-wait first degree murder,the trial court instructed the jury as follows: “Murder which is immediately preceded by lying in wait is murderofthefirst degree. The term ‘lying in wait!’! is defined as waiting and watching for an opportunetimeto act together with a concealment by ambush or by other secret design to take the other person by surprise. The lying in wait need not continue for any particular period of time provided that its duration is such as to showa state of mind equivalent to premeditation or deliberation.” (10 RT 2009; 5 CT 1219.) In the verdict form it executed concerning the murder charge in countI, the jury specifically found the murder of Detective Black was deliberate and premeditated. (5 CT 1267.) However, the jury gave no indication as to whetherthe first degree murder verdict was based on a finding that Mr. Sandoval had committed the murder by meansoflying in wait. -253- Obviously, a group of criminal street gang members would notset up to carry out a ganghit at a time and location where they believed police would beat the scene. When Mr. Sandovalfirst noticed the detectives, they had turned onto Lime Avenue andwereat a point about two house lengths away from where Mr. Sandoval was standing. (2 CT 293-294, 317-318.)!* He ducked down,he saw the detectives focus their attention on Rascal, he stood up, and he openedfire. (2 CT 295-297.) This all occurred in the period of time it took the detectives two drive approximately two house lengths. This evidence cannot support a lying-in-wait special circumstance finding, because 1) the fatal shooting did not occur while Mr. Sandoval was lying in wait for the detectives, as opposed to Toro, and 2) the shooting was not preceded by the requisite substantial period of watching and waiting. In People v. Lewis, supra, 43 Cal.4th 415, this court explained that the lying-in-wait special circumstance theory, pursuant to whichthe jury in the instant case wasinstructed, “requires proof of an intentional murder, committed under ‘4 Grand Jury Exhibits 9, 10, and 11 are diagrams of the 1900 block of Lime Avenue, wherethe shooting occurred. (3 CT 644-647, 679-680.) People’s Exhibit 36 is an aerial photograph of the vicinity. (7 RT 1458.) These exhibits depict the limited number of homes on the block andthe short distance the detectives traveled from the point where Mr. Sandoval saw them after they turned onto Lime Avenueandthe point where Mr. Sandoval openedfire on them. -254- circumstances which include (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.” (/d. at p. 508, internal quotation marks omitted.) This court then proceededin Lewis to set aside multiple lying-in-wait special circumstance findings on two different grounds: insufficient evidence of a substantial period of watching and waiting as to one victim (id. at pp. 507-509), and insufficient evidence of murder while lying in wait as to three other victims. (/d. at pp. 511- 515.) With respect to the special circumstance finding set aside due to lack of evidence of watchful waiting, this court recounted the following pertinent evidence: The defendant and friends of the defendant had been in two vehicles, driving together in tandem. The vehicle in which the defendant was notriding collided with a truck driven by the victim. (/d. at pp. 433, 464, 508.) After the collision, the defendant approachedthe victim’s truck and either “shot him in order to take the truck[,]” or fatally shot the victim after getting into an altercation with him and deciding to take his truck. (/bid.) This did not constitute sufficient evidence the necessary “substantial period ofwatching and waiting to support the lying-in-wait special circumstance.” (/d. at p. 508.) -255- With respect to the special circumstance findings set aside due to lack of evidence ofhomicides committed “while” lying in wait, this court noted that the defendant and his cohorts had “accomplished the forcible kidnapping of[three] victim[s] while lying in wait, but then drovethestill living victims aroundin their cars for periods ofone to three hours, while [using ATM cards to] withdraw[] moneyfrom the victims’ bank accounts, before killing them.” (/d. at p. 514.) “By the time ofthe killings, the concealment, the watchful waiting, and the surprise attack[s] all had taken place at least one and up to three hours earlier.” (/bid.) In People v. Carter (2005) 36 Cal.4th 1215, this court again set aside a lying-in-wait special circumstance finding. Although the Attorney General contended the evidence adducedat trial reasonably supported an inference that the defendant had broken into the victim’s home and waited there to take her by surprise when she subsequently arrived (id. at p. 1261), this court concluded that inference was speculative. There was no actual evidencethat the defendant had watched and waited for the victim. The defendant “may have arrived”at the victim’s homeafter the victim was already there. (/d. at pp. 1261-1262.) Although this court has “neverplaced a fixed time limit” on the required period of watching and waiting, this court has held that “the period of watchful waiting must be substantial.” (People v. Moon, supra, 37 Cal.4th at p. 23, italics -256- added, internal quotation marks omitted.) In the instant case, no evidence was adduced that Mr. Sandoval watched and waited for a substantial period of timeafter he first observed the detectives. As noted above, the only evidence bearing on this subject was that the detectives had traveled approximately two houselengthsin their vehicle between the time hefirst saw them andthe time that he openedfire. Although no evidence waspresented as to how longit took the detectives to drive the distance of two house lengths on Lime Avenue,it is evident that it would not have taken the detectives more than a matter of secondsto drive that short distance. The jurors saw visual evidence of the brief distance the detectives drove on Lime Avenuebefore being fired upon. (People’s Exhibit 36.) No California court has held that the mental state necessary to support the lying-in-wait special circumstance, which1s constitutionally required to entail more than “mere” premeditation and deliberation, can be formed in such a short period of time. Furthermore,there is no evidence, as opposed to speculation, that Mr. Sandoval ducked downin orderto conceal himself for the purpose of “waiting for an opportunetimeto act....” (People v. Lewis, supra, 43 Cal.4th at p. 508.) He ducked downsoas to avoid being seen andarrested by the detectives for, inter alia, being in unlawful possession of a firearm. The prosecutor even acknowledged that Mr. Sandoval“conceal[ed] himself behind the -257- vehicle that he arrived in[,] in order that he not be seen by the police officers [who were] approach[ing] him.” (10 RT 1934.)'* Per his confession, he did not decide to shootat the detectives until he saw them focustheir attention on Rascal. (2 CT 296-297.) The decision and the shooting occurred instantaneously, rather than after a substantial period of watchful waiting.'*° Finally, as discussed at pp. 157 & 227, ante, the prosecutorstressed to the jury during his guilt phase argumentthe fact that Mr. Sandovalfired 28 separate shots, suggesting the jury could infer Mr. Sandoval’s mental state from the numberofshots fired. (10 RT 2031.) However, to the extent the numberofshots fired reflects some type of evolving mentalstate, that evidence forecloses a finding that the requisite mental state had been formed “while” watching and waiting for an opportune time to act. Underthe standard for reviewing the sufficiency of evidence, discussed at pp. 139-140, ante, the evidence in this case is insufficient to support the lying-in-wait special circumstance. Thus, unless Penal Code section 190.2, subdivision (a)(15) is construed in some mannerthat fails to fulfil the constitutionally required narrowing function of ‘> As defense counsel argued to the jury, Mr. Sandoval hid “notto lie in wait[,]” but to hide from the detectives. (10 RT 2049.) ‘© The prosecutor arguedto the jury during the guilt phase that when Mr. Sandoval saw the detectives, he “duck[ed] down, and waited to see whetherit[] [was] necessary ... to begin shooting....” (10 RT 2035.) -258- special circumstancesin this state, the evidence adducedattrial was legally insufficient to support the jury’s lying-in-wait special circumstance finding pursuantto the lying-in-wait special circumstance theory on whichthetrial court instructed the jury. XI. THE TRIAL COURT VIOLATED MR. SANDOVAL’S STATUTORY AND CONSTITUTIONAL RIGHTSBY. CONDUCTING PROCEEDINGS OUT OF MR. SANDOVAL’S PRESENCE. ‘ During deliberations in the guilt phase, the jury sent a note to the trial court asking the following question: If we find the person guilty of count two attempted murder, but find the attempt not to be premeditated, is this personstill guilty of the crime? (10 RT 2082; 5 CT 1179.) Proceedings were convened in open court to address the jury’s question. Mr. Sandoval was not present. The court asked defense counsel whether they wanted Mr. Sandoval brought to court. Lead defense counselstated, “Ill waive his presence.” (10 RT 2082.) The court then proceeded to discuss the jury’s question with counsel and formulated a response. (10 RT 2082-2083.) /// -259- By going forward with these proceedings in Mr. Sandoval’s absence, the trial court violated Mr. Sandoval’s constitutional and statutory rights. Although Mr. Sandoval had orally waivedhis right to be present during any read-backs of testimonyto the jury (10 RT 2070-2071), he had not personally waived — orally or in writing — his right to be present during proceedings involving the formulation of responses to questions from the jury beyond mere requests for read-backs. “As a constitutional matter, a criminal defendant accused of a felony has the right to be presentat every critical stage of the trial.” (People v. Rundle (2008) 43 Cal.4th 76, 133, disapproved on other grounds in People v. Doolin, supra, 45 Cal.4th at p. 421, fn. 22.) “The right derives from the confrontation clause of the Sixth Amendmentto the federal Constitution and the due process clauses of the Fifth and Fourteenth Amendments, andarticle I, section 15 of the California Constitution.” (/bid.) “One of the most basic rights guaranteed by the Confrontation Clause is the accused’s right to be present in the courtroom at every stage ofhistrial.” (//linois v. Allen, supra, 397 U.S.at p. 338; Lewis v. United States (1892) 146 U.S. 370.) The right of a defendantto be present is also codified in Penal Code section 1043. A defendant charged with a felony can waivethe right to be present. -260- However,in order to effectuate the waiver, the defendant must“personally” execute the waiver in writing in open court. (Penal Code section 977.) In People v. Romero, supra, 44 Cal.4th 386, this court concluded a defendant’s right to be present was violated when court responded to jury question out of the defendant’s presence. Although the defendant hadorally agreed to waivehis right to be present during read-backs of testimonyor in other proceedings convened to respond to jury questions, he had not executed that waiverin writing. (/d. at pp. 417-419) The question asked bythe jurors in the instant case wasa significant question. It involved Mr. Sandoval’sliability for the attempted murder charge in count two, andit revealed the jury was struggling with the question ofwhether Mr. Sandovalhad acted with premeditation. (10 RT 2082; 5 CT 1179.) Under the authorities set forth above, the trial court violated Mr. Sandoval’s constitutional and statutory rights by conducting proceedings concerning this question outside Mr. Sandoval’s presence. In People v. Romero, supra, 44 Cal.4th 386, this court deemed harmless a comparable, thoughlessserious, violation of a defendant’s right to be present. In coming to that conclusion,this court stressed that thetrial court in that case had not given a substantive responseto a juror question in proceedings conducted without the defendant. (/d. at p. 419.) Here, by contrast, -261- we lt the court formulated a response to the jury question in Mr. Sandoval’s absence. (10 RT 2082-2083.) The error cannot be deemed harmless undereither the Chapman standard or the Watson standard. XI. THE STATE’S RETRIAL OF THE PENALTY PHASE, FOLLOWINGTHE 7-5 DEADLOCKIN THE ORIGINAL PENALTY PHASE, WAS UNCONSTITUTIONAL. The state and federal bans against cruel and/or unusual punishment (U.S. Const., 8 Amend.; Cal. Const., art.I, § 17),'*’ prohibit repeated attempts by the governmentto subject a capital defendantto the death penalty. Specifically, if a prosecutoris unable to convinceajury to unanimously vote to imposethe death penalty upon a defendant, the prosecutor cannot, consistently with constitutional safeguards, make repeated attempts to exact the ultimate penalty against the defendant from new and different juries. This court concluded otherwise in People v. Taylor (2010) 48 Cal.4th 574, 633-634. However, the Supreme Court of the United States has not addressed the issue, and Mr. Sandoval respectfully raises the issue here in order to preserve his "7 “Unlike its federal counterpart, [the California constitutional provision] forbids cruel or unusual punishment, a distinction that is purposeful and substantive rather than merely semantic.” (People v. Carmony (2005) 127 Cal.App.4th 1066, 1085,italics in the original.) -262- right to raise the issue in future proceedings, if necessary. “[R]etrial is not the prevailing rule for capital penalty-phase proceedings.” (Jones v. United States (1999) 527 U.S. 373, 419 (Ginsburg,J., dissenting).) “The majority of states have statutorily provided for an automatic sentence ofless than death in the event of a deadlocked jury.” (State v. Peeler (2004) 271 Conn. 338, 428 [857 A.2d 808, 867] cert. den. sub nom. Peeler v. Connecticut (2005) 546 US. 845; State v. Hochstein (2001) 262 Neb. 311, 323 [632 N.W.2d 273, 282].) The death penalty is currently prohibited in the following 15 states: Alaska, Hawaii, Iowa, Maine, Massachusetts, Michigan, Minnesota, North Dakota, New Jersey, Mew Mexico, New York, Rhode Island, Vermont, West Virginia, and Wisconsin. It is also prohibited in the District of Columbia. (<>.) The death penalty is available in 35 states. And, the federal judiciary is a 36" jurisdiction in which the death penalty is available. (18 U.S.C. § 3591, et seq.; see generally United States v. Moussaoui (4" Cir. 2010) 591 F.3d 263, 300-303.) In 25 of these 36 jurisdictions, penalty phaseretrials are statutorily prohibited. In these 25 jurisdictions,ifthe jury in the original penalty phase does not unanimously vote in favor of the death penalty, the prosecution may not make a repeat attempt to secure the death penalty. Rather, the defendant must be -263- sentenced to life without parole or somelesser sentence.'*® California is one of only five states that statutorily authorize retrial of a penalty phase following juror deadlock in the original penalty phase. (Penal Code section 190.4, subdivision (b).)'*? The other four states are Alabama, Arizona, /// /// 8 Title 18 United States Code section 3594; Arkansas Code Annotated section 5-4-603, subdivision (c); Colorado Revised Statutes section 18-1.3-1201, subdivision (2)(d); Georgia Code Annotated section 17-10-31, subdivision (c); Idaho Code section 19-2515, subdivision (7)(b); 720 Illinois Compiled Statutes 5/9-1, subdivision (g); Kansas Statutes Annotated section 21-4624, subdivision (e); Louisiana Code of Criminal Procedurearticle 905.8; Maryland Criminal Law Code Annotated section 2-303, subdivision (j)(2); Mississippi Code Annotated section 99-19-101, subdivision (3)(c); Missouri Revised Statutes section 565.030, subdivision (4); New Hampshire Revised Statutes Annotated section 630:5, subdivision (IX); North Carolina General Statutes section 15A-2000, subdivision (b); Oklahoma Statutes Annotatedtitle 21, section 701.11; Ohio Revised Code Annotated section 2929.03, subdivision (D)(2); Oregon Revised Statutes section 163.150, subdivisions (2)(a) & (1)(c)(B); 42 Pennsylvania Consolidated Statutes Annotated section 9711, subdivision (c)(1)(v); South Carolina Code Annotated section 16-3-20, subdivision (C); South Dakota Codified Laws section 23A-27A- 4; Tennessee Code Annotated section 39-13-204, subdivision (h); Texas Code of Criminal Procedure Annotatedarticle 37.071.2, subdivision (g); Utah Code Annotated section 76-3-207, subdivision (5)(c); Virginia Code Annotated section 19.2-264.4, subdivision (E); Washington Revised Code Annotated section 10.95.080, subdivision (2); Wyoming Statutes Annotated section 6-2-102, subdivision (d)(ii). ' California previously adhered to the majority rule prohibiting penalty phaseretrials following hung juries. (People v. Kimble (1988) 44 Cal.3d 480, 511, cert. den. sub nom. Kimble v. California (1988) 488 U.S. 871.) -264- Indiana, and Nevada.'° In two states, Connecticut and Kentucky, courts have determined,in the absenceofspecifically controlling legislation, that penalty phaseretrials may go forward after original capital sentencing juries deadlock. (State v. Daniels (1988) 207 Conn.374, 393-394 [542 A.2d 306, 317]; Skaggs v. Commonwealth (Ky. 1985) 694 S.W.2d 672, 681.)'* The remaining three states are Delaware, Florida, and Montana. The relevant statutes in these states provide that juries do not make the ultimate sentencing determination in capital cases.’ Thus, a national consensus has emergedthat a capital case prosecutor should have only one opportunity to make his/her case for a death sentence. In light of this national consensus, if the prosecutor does not convincethe originally empaneled jury to unanimously vote to impose the death penalty, the federal and '8° Alabama Codesection 13A-5-46, subdivision (g); Arizona Revised Statutes section 13.752, subdivision (K); Indiana Code Annotated section 35-50-2- 9, subdivision (f); Nevada Revised Statutes Annotated section 175.556, subdivision (1). ‘5! Connecticut has only executed one person since 1976. (<>.) '8 Delaware Code Annotatedtitle 11, section 4209, subdivisions (c)(3)(b)(1) & (2); Florida Statutes section 921.141, subdivisions (2) & (3); Montana Code Annotated section 46-1 8-305. -265- state bans on cruel and/or unusual punishmentprohibit the prosecutor from seeking to exact that penalty in a second penaltytrial. “Thoughthe death penalty is not [presently deemed] invariably unconstitutional,” the Supreme Court of the United States “insists upon confining the instances in which the punishment can be imposed.” (Kennedy v. Louisiana (2008) 128 S.Ct. 2641, 2650.) The Court proceeds with rigor in this regard because the Eighth Amendment“imposesspecial limitations” on government authority to mete out the death penalty. (Payne v. Tennessee (1991) 501 U.S. 808, 824.) In California,it is the “imperative task of the judicial branch, as a coequal guardian of the [State] Constitution, to condemn anyviolation”ofthe prohibition against cruel or unusual punishment. (People v. Dillon (1983) 34 Cal.3d 441, 478, internal quotation marks omitted.) “The basic concept underlying the Eighth Amendmentis nothing less than the dignity of man.... The Amendment must draw its meaning from the evolving standards of decency that mark the process of a maturing society.” (Trop v. Dulles, supra, 356 U.S. at p. 100-101.) Thus, “the powerto prescribe penalties [must] be exercised within the limits of civilized standards.” (Jn re Lynch (1973) 8 Cal.3d 410, 424, internal quotation marks omitted.) In assessing whether imposition of the death penalty violates the Eighth Amendmentin a particular type -266- of case, courts must look to “objective indicia of society’s standards, as expressed in legislative enactments andstate practice with respect to executions.” (Roperv. Simmons, supra, 543 U.S. at p. 563.) The “clearest and most reliable objective evidence of contemporary valuesis the legislation enacted by the country’s legislatures.” (Penry v. Lynaugh (1989) 492 U.S. 302, 331.) The existence of a “national consensus” against imposing the death penalty in certain contexts can providethe basis for finding that the Eighth Amendmentoperatesas a substantive ban on the death penalty in those contexts. (Roper, supra, 543 U.S. at pp. 563- 564; Graham v. Florida (2010) 130 S.Ct. 2011, ———, 176 L.Ed.2d 825, 837.) When the country’s legislatures have developed a consensus, a court must ask “whether there is reason to disagree with the judgment reached bythe citizenry andits legislators.” (Atkins v. Virginia (2002) 536 U.S. 304, 313.) Thefigures set forth above reveal a strong national consensusagainst allowing prosecutors to make multiple attempts to convince juries to impose the death penalty against a single defendant. Nearly 70% of the jurisdictions in which the death penalty is available limit the prosecution to one attempt.'*? Factoring in the 16 jurisdictions in which the death penalty is prohibited, no authority exists in '3 As noted above, 25 of the 36 jurisdictions in which the death penalty is available allow only one attempt. 25 is 69.4% of36. -267- nearly 80% ofthe jurisdictions in this country for prosecutors to make multiple attempts to convince juries to impose the death penalty against a single defendant.'” The “contemporary values”reflected by this “national consensus” requires this court to ask “whetherthere is reason to disagree with the judgment reached by the citizenry andits legislators.” (Atkins v. Virginia, supra, 536 U.S. at p. 313.) The answerto this questionis no. The Supreme Court of the United States has interpreted the Eighth Amendmentto “require[] that each juror be permitted to consider and giveeffect to mitigating evidence when deciding the ultimate question whether to vote for a sentence of death.” (McKoy y. North Carolina (1990) 494 U.S. 433, 442-443; accord, Tennard v. Dretke (2004) 542 U.S. 274, 285.) In Mr. Sandoval’s original trial, five jurors felt that the death penalty was not warranted in this case. The voices of thosefivejurors have not been “give[n] effect” in this case. In Kansas v. Marsh (2006) 548 U.S. 163, the Supreme Court of the United States found the Kansas death penalty statute to be constitutional because the state’s capital sentencing system was “dominated by the presumptionthatlife ‘4 In 41 out of 52 jurisdictions (the 50 states plus the District of Columbia and the federal judiciary), no repeat attempt may be madeto secure the death penalty. 41 is 78.8% of 52. -268- imprisonmentis the appropriate sentence for a capital conviction.” (/d., at p. 178.) A significant manifestation of this presumptionis the statutory provision that “if the jury is unable to reach a unanimous decision—in any respect—asentence of life must be imposed.” (/d., at p. 179.) XIII. THE TRIAL COURT’S WITHERSPOON-WITT ERRORIN THE REMOVALOF PROSPECTIVE JUROR D.M. NECESSITATES AUTOMATIC REVERSAL OF THE DEATH PENALTY JUDGMENT. Thetrial court improperly granted the prosecutor’s request to exclude prospective juror D.M.for cause during the death-qualification stage ofjury selection in the penalty-phasere-trial. (15 RT 2998-2999.) D.M. supports the death penalty and believes convicted murderers should be swiftly executed. (15 RT 2992-2993; 49 Supp. I CT 14152-14154.) Although he equivocatedin response to questions as to whether he could vote to impose the death penalty in this case, by answering “yes”, “TI think so”, and “TI really don’t know until I face that situation” (15 RT 2993-2998; 49 Supp. I CT 14154), D.M. unequivocally indicated he wouldlisten to the evidence, follow the trial court’s instructions, strive to determine the appropriate penalty, and serve as a fair and impartial juror. (15 RT 2993-2994, 2997-2998; 49 Supp. I CT 14145-14146, 14157.) Not only -269- wasthere no factual basis for the court’s removal of D.M.for cause, but also the court applied an unconstitutional standard in assessing whether D.M.was subject to removal for cause. Thetrial court’s erroneous disqualification of D.M. violated Mr. Sandoval’s state and federal constitutional rights to a reliable penalty verdict, due process oflaw, and a fair and impartial jury. (U.S. Const., 5, 6", 8" & 14" Amends.; Cal. Const., art. I, §§ 7, 15, 16 & 17.)'® Theerror necessitates automatic reversal of the death penalty judgment. A. Factual Background D.M.filled out a questionnaire (49 Supp. I CT 14127-14163), and answered questions during sequestered Hovey'”voir dire. (15 RT 2992-2999.) After the voir dire, the trial court granted the prosecutor’s request to excuse D.M.for cause over defense objection. (15 RT 2998-2999.) // I /// '8§ “In a state such as California that in capital cases providesfor a sentencing verdict by a jury, the due process clause of the Fourteenth Amendment of the federal Constitution requires the sentencing jury to be impartial to the same extent that the Sixth Amendmentrequires jury impartiality at the guilt phase of the trial.... California’s Constitution provides an identical guarantee.” (People v. Earp (1999) 20 Cal.4th 826, 852-853, internal quotation marks omitted, cert. den. sub nom. Earp v. California (2000) 529 U.S. 1005.) '86 Hovey v. Superior Court (1980) 28 Cal.3d 1. -270- 1. D.M.’s Questionnaire and Voir Dire In the juror questionnaire hefilled out, D.M. indicated he could be a fair and impartial juror in this case. (49 Supp. I CT 14145.) He wrote that he held no religious preferences or beliefs that would makeit difficult to sit in judgment of another person (49 Supp. I CT 14146), and that he had the ability to decide the case based on the evidencepresented in court along with the instructions given by the judge. (49 Supp. I CT 14151.) D.M. wrote that heis in favor of the death penalty “in somecases.” (49 Supp. I CT 14152.) Further, he indicated that he does notbelieve the death penalty is used too often, “except maybe in Texas.” (49 Supp. I CT 14153.) He indicated in his questionnaire that he believes California should have the death penalty, that he supports the death penalty “in most cases[,]” and that he agrees with the proposition that convicted murderers should be swiftly executed. (49 Supp. I CT 14154, 14157.) In responseto a question as to whether he could “vote for the death penalty on ... Ramon Sandoval, if [he] believed, after hearing all the evidence, that the penalty was appropriate[,]” D.M. answered, “ves[.]” (49 Supp. I CT 14154.) However, in response to a question as to whether he “realistically” saw himself “as a person capable of returning a verdict of death on another human being[,]” D.M. answered,“[I] don’t know.” (49 Supp. I CT /// -271- 14158.)'’ During the prosecutor’s sequestered voir dire of D.M., the following exchange took place: Q: I take it you believe in the death penalty in somesituations[,| depending onth[e] issues of the crime? A: Correct. Q: Okay.[§] And the only thing I’m worried aboutat this pointis, do you see yourself as a person that, as part of a jury, you have the ability to return a death verdictif it’s warranted? [§]] Are you following me? A: Lam.[{] I thought aboutit. [{] And I honestly couldn’t answer you. I’ve neverbeenin that situation before. Q: Doyou think you canlisten to the evidence which is presented and make a determination as to what the appropriate punishmentis for someonethat did the things that you’!1 hear about[in this] court? A: Yeah. Q: Okay. [{] And if it happensto be from listening to everything that you believe the death penalty is appropriate, can you return that verdict? A: [think so. I really don’t know until I face that situation. Q: Whatsort of things would you consider in making that sort of ... conclusion, and making that sort of decision? ‘7 Three potential answers were listed on the questionnaire: Yes, No, and Don’t Know. D.M.circled “Don’t Know”. (49 Supp. I CT 14158.) -272- A: I suppose the circumstances under which it happened, and maybe what I thought about the defendant. His role in the crime and thingslike that? Yes. Would you do yourbest as a juror to make an honest evaluation and determination of what the appropriate penalty is? Yes. And would youlisten carefully to the evidence which comes from both sides as to what the defendant has donein hislife? Yes. And I’m not — obviously, you can’t give us an answer because you don’t know whatthe evidenceis. [{]] But would you do yourbest to return a verdict which accurately reflects an appropriate verdict for his conduct? Yes. (15 RT 2992-2994.) Then,the following exchange took place during defense counsel’s questioning of the prospective juror: Q: Wejust want to makesure that you can befair to bothsides. Andat the end ofthe case, the jury will be given two possible verdicts, life without parole or death. You have to sign one. Eachjurorhasto agreeto one.[§]] Do you feel at this time that you could vote for either one? -273- ‘A: To be honest, I’m not sure. Tell us about what it is that you’re not sure....? A: I think whether, perhaps, I should even havethe ability or the powerto decide life or death. Q: Okay.[{] So it doesn’t really have to do with the facts ofthis case, but just the kind ofsituation that you’re being put in? A: Yeah.[{] I’m not sure whether— I don’t know. I’m not sure whetherI’m upto the responsibility, to be honest.'*8 (15 RT 2995.) Later in defense counsel’s questioning of D.M., the following exchange occurred: Q: We’re giving you basically someofthe facts of the case. He’s already been convicted of killing a police officer — I realize that. —— whowasin the performanceofhis duties.... And that there wasanother unrelated murder. I don’t knowifyou caughtthat. [{] But one question [in the questionnaire] was if there was another murder, would you automatically vote for the death penalty? [§] And your answer was no. You’d haveto look at all the circumstances. [{] So now you understand what the case is about — 158 The record mistakenly reflects the last answerto the last question in the above-quoted exchange wasgiven by defense counsel. However,it is evident that defense counsel did not answer his own question, but rather that the answer was given by prospective juror D.M. (15 RT 2995.) -274- Yes. Andthe question is, can you vote — if you thought that death wasappropriate, okay, justified and appropriate after hearing all the evidence, which first the prosecution gives evidence and then the defense gives evidence, and then we have arguments by the attorneys, and the judge givesinstructions.[§]] If you though that death is appropriate, could you vote for death? To be honest, I could only say yes until I wasat that actual point. Okay.[{]] Because you’ve never beenat that actual point before? Correct. Andis it bothering you that it’s a pretty momentous and difficult decision? Yeah. Sure. Sure. Is that something that you’ve never really been confronted with, but in your life, you are able to make decisions in your life, even tough onesor not? Not very well. Andall we’re asking you here is not a commitment. We don’t want a commitment of what you decide, but that you will listen to the evidence and will decide one wayor the other based upon yourconscience,the evidence,the jury instructions, and the attorneys[’] arguments, everything, the whole big ball of -275- wax. [{]] Could you do that? A: Ican dothat. (15 RT 2996-2998.) After the sequestered voir dire, D.M. stepped outside of the courtroom, and the prosecutor moved to excuse him for cause “based on his ambivalence.” (15 RT 2998.) The court agreed with the prosecutor’s assessment, and stated: I think so too. I think he’s too ambivalent one wayorthe other. I don’t think he can make any decision. And his answerwasin accordancewith that ambivalence. In fact, I believe he didn’t even answerthe question onlife without the possibility ofparole. I believe heleft that one blank.!'™! (15 RT 2998.) Defense counsel proposed to bring the prospective juror back in for further questioning. (15 RT 2998-2999.) But, the court commentedthat the juror “kept saying ... ‘I don’t know'’!”, andthat “he’s not going to know until the moment of truth hits him between the eyes.” (15 RT 2999.) Defense counsel countered that, '° Thereafter, the court said, “I suppose he did[]” answerthe question on his questionnaire. In fact, D.M. answered oneoftwo similarly-phrased questions concerning this subject: Question 100 on the 37-page questionnaire called for the prospective juror to indicate whetherhe couldrealistically see himself returning a death verdict. Question 101 called for the prospective juror to indicate whether he could realistically see himself returning a sentenceoflife without the possibility of parole. D.M. answered the former question by circling “Don’t Know”,but he did not circle any answerin responseto the latter question. (15 RT 2999; 49 Supp.I CT 14158-14159.) -276- in the end, the prospective juror said he would make a decision based upon the evidence and that he would take responsibility for making the decision. The court disagreed and excused the prospective juror for cause, declining defense counsel’s request to bring the prospective juror back in for further questioning. (15 RT 2999.) At no time did the court indicate its determination was based upon demeanor, body language, or anything other than D.M.’s verbal responses during voir dire. 2. The Trial Court’s “Ambivalence/Equivocation ” Standard During the death-qualification phase of voir dire in the round ofjury selection conducted before the guilt phase, the trial court had commentedthat “when jurors equivocate with “I think so!”!, “II feel I could!”!, '] don’t think I could!’!,I don’t know!’!, that’s a challenge for cause that’s appropriate.” (4 RT 814.) The court said “there’s case after case that says” “when [prospective] jurors equivocate and say '“!] don’t know'”!... they can be excused for cause.” (4 RT 814.) In support of this proposition, the court cited to People v. Kaurish (1990) 52 Cal.3d 648, cert. den. sub nom. Kaurish v. California (1991) 502 U.S. 837; People v. Hamilton (1989) 48 Cal.3d 1142, cert. den. sub nom. Hamilton v. California (1990) 494 U.S. 1039; People v. Coleman (1989) 48 Cal.3d 112, cert. den. sub -277- nom. Coleman v. California (1990) 494 U.S. 1038; and People v. Guzman (1988) 45 Cal.3d 915, cert. den. sub nom. Guzmanv. California (1989) 488 U.S. 1050.' (4RT 814.) B. Standard ofReview Whenan appellate court reviewsa trial court’s decision to excuse a prospective juror for cause based upon information elicited during the death- qualification phase ofjury selection, the question “is not whether [the] reviewing court might disagree with the trial court’s findings, but whether those findings are fairly supported by the record.” (Wainwright v. Witt, supra, 469 U.S. 412, 434.) Findingsofthe trial court in this regard are supposed to be directed at ascertaining whethera prospective juror’s views concerning capital punishment “would prevent or substantially impair the performanceofhis [or her] duties as a juror in accordance with his [or her] instructions and his [or her] oath.” (/d. at p. 424, internal quotation marks omitted.) Generally, a reviewing court must extend deference to the factual findingsofthe trial court concerning a prospective juror’s //] ' This court disapproved Guzman on other groundsin Price v. Superior Court, supra, 25 Cal.4th at p. 1069, fn. 13. 's! As discussed below, none ofthese cases, nor any other decisionsofthis court, stand for the proposition asserted by thetrial court. -278- ability to perform his/her duties. (Uttecht v. Brown, supra, 551 U.S.at p. 9.)'” However, an appellate court extends no deference in cases where “the trial court’s findings are dependenton an apparent misapplication of federal law.” (Grayv. Mississippi (1987) 481 U.S. 648, 661, fn. 10.) Furthermore, “a reviewing court mayreverse[a] trial court’s decision [to remove a prospective juror for cause] where the record discloses no basis for a finding of substantial impairment.” (Uttecht, supra, 551 U.S.at p. 20.) C. Governing Legal Principles Only prospective jurors who cannot be impartial are subject to disqualification for cause. “In the usual sense, a biased juror is one who has a predisposition against or in favor of the defendant. In a more limited sense. A biased juror is one who cannot‘conscientiously apply the law andfind the facts.’” (Franklin v. Anderson (6" Cir. 2006) 434 F.3d 412, 422, cert. den. sub nom. Houk v. Franklin (2007) 549 U.S. 1156; quoting Wainwright v. Witt, supra, 469 U.S.at p. 423.) '? The discretion ofthe trial court in this context is not boundless: “In exercising its discretion, the trial court must be zealousto protect the rights of the accused.” (Dennis v. United States (1950) 339 U.S. 162, 168.) Thetrial court’s exercise of discretion is “‘subject to the essential demandsoffairness.”” (Morgan v. Illinois, supra, 504 U.S.at p. 730; Aldridge v. United States (1931) 283 U.S. 308, 310.) -279- Codeof Civil Procedure section 225, subdivision (b)(1)(C) permits the exclusion for cause of a prospective juror who exhibits a state of mind “which will prevent the juror from acting with entire impartiality, and without prejudice to the substantial rights of any party.” Code of Civil Procedure section 230 provides: “Challenges for cause shall be tried by the court. The juror challenged and any other person may be examinedas a witnessinthetrial of the challenge, and shall truthfully answerall questions propoundedto them.” The requirement of impartiality has a special componentin capital cases: A prospective juror cannot be deemed impartial if his or her viewsin favor of or against capital punishment would prevent him or her from conscientiously considering the sentencing alternatives of life without the possibility ofparole and the death penalty. (People v. Lewis, supra, 43 Cal.4th at p. 482.) 1. Burden ofProof “[I]t is the adversary seeking exclusion who must demonstrate, through questioning, that the potential juror lacks impartiality.” (Morgan v. Illinois, supra, 504 U.S. at p. 733, internal quotation marks omitted; Lockhart v. McCree, supra, 476 US. at p. 170, fn. 7; Wainwright v. Witt, supra, 469 U.S. at p. 423; Reynolds v. United States (1879) 98 U.S. 145, 157 [The affirmative of the issue is upon the challenger.”].) -280- 2. Significance ofDefense Objection An objection from defense counsel to removal of a prospective juroris significant in this context. In Uttecht v. Brown, supra, 551 U.S. 1, the Supreme Court of the United States was confronted with the converse circumstance — removalof a prospective juror without objection from the defense. The Court explained the significance of the lack of objection: We... take into account voluntary acquiescenceto, or confirmation of, a juror’s removal. Byfailing to object, the defense did notjust denythe conscientioustrial judge an opportunity to explain his judgmentorcorrect any error. It also deprived reviewing courts of further factual findings that would have helped to explain thetrial court’s decision. (Id. at p. 18.) 3. The Sixth and Fourteenth Amendments Have Been Construed to Prohibit Removalfor Cause ofa Prospective Jurorin a Capital Case on the Basis ofHis/Her Views Concerning the Death Penalty Unless Those Views Would Completely or Substantially Inhibit the Prospective Juror’s Capacity to Consider and Vote to Impose the Death Penalty. The exclusion from a jury of all persons with reservations about the death penalty would result in a panel “uncommonlywilling to condemn a manto die[,]” in derogation of a capital defendant’s right, under the Sixth and Fourteenth Amendments, to an impartial jury. (Witherspoonv.Illinois, supra, 391 U.S.at p. 521.) Accordingly, a prospective juror may be removedfor cause onlyif his or her -281- views regarding the death penalty would “prevent or substantially impair the performanceofhis [or her] duties as a juror....” (Wainwright v. Witt, supra, 469 USS. at p. 424; People v. Lewis, supra, 43 Cal.4th at p. 487; People v. Blair (2005) 36 Cal.4th 686, 741, cert. den. sub nom. Blair v. California (2006) 547 US. 1107.)'° It is difficult for the State to show prospective jurors are subject to removal for cause underthis standard: Prospective jurors “whofirmly believe that the death penalty is unjust may neverthelessserve... so long as they are willing to temporarily set aside their own beliefs in deferenceto the rule of law.” (Lockhart v. McCree, supra, 476 U.S.at p. 176.) Similarly, prospective jurors whose “conscientious viewsrelating to the death penalty” would lead them to “impose a higher threshold before concluding the death penalty is appropriate” or would otherwisefind it “very difficult ... ever to impose the death penalty” are not subject 1 “The State’s power to exclude for cause jurors from capital juries does not extend beyondits interest in removing those jurors who would frustrate the State’s legitimate interest in administering constitutional capital sentencing schemesbynot following their oaths. [Citation.] To permit the exclusion for cause of other prospective jurors based on their views of the death penalty unnecessarily narrowsthe cross section of venire members. It stacks the deck against the [defendant]. To execute ... a death sentence [imposed by a jury from which venire members were improperly excluded based on their views concerning the death penalty] would deprive [the defendant] of his life without due process of law.” (Gray v. Mississippi, supra, 481 U.S. at pp. 658-659, internal quotation marks and brackets omitted.) -282- to removal for cause. (People v. Stewart (2004) 33 Cal.4th 425, 447.) Even prospective jurors whose opposition to the death penalty would “predispose” them “to assign greater than average weight to the mitigating factors presented at the penalty phase may not be excluded unless that predilection would actually preclude [them] from engaging in the weighing process and returning a capital verdict.” (People v. Kaurish, supra, 52 Cal.3d at p. 699.)'™ Thus, prospective jurors who express opposition to the death penalty and/orreluctance abouttheir willingness to impose the death penalty cannot be removed for cause on that basis. Rather, they can only be removed for cause based upon evidence that engenders a “definite impression that [they] would be unable to faithfully and impartially apply the law.” (Wainwright v. Witt, supra, 469 U.S.at pp. 425-426.) “A juror’s refusal to inflict the death penalty because of the personal demands of conscience overthe firm dictates of the law is, of course, an example ofjuror nullification.” (Merced v. McGrath (9" Cir. 2005) 426 F.3d 1076, 1080, /// /// '# “TWhere jurors express conscientious views concerning the death penalty yet still make clear that they are able to follow their oaths to act impartially, they cannot be excluded for cause from participating on the jury.” (People v. Cahill (2003) 2 N.Y.3d 14, 47, 809 N.E.2d 561, 576, 777 N.Y.S.2d 332, 347.) -283- cert. den. sub nom. Merced v. Kirkland (2006) 547 U.S. 1036.)'* According to the Supreme Court of the United States, only the readiness of a prospective juror to engage in nullification of a death penalty statute will justify removal for cause during the death-qualification process: “[I]f prospective jurors are barred from jury service because oftheir views about capital punishment on any broaderbasis than inability to follow the law or abide bytheir oaths, the death sentence [imposed by a jury from which they were excluded] cannotbe carried out.” (Adamsv. Texas (1980) 448 U.S. 38, 48, internal quotation marks omitted.) a. The Significance ofEquivocation and/or Ambivalence on the Part ofProspective Jurors During the Death- Qualification Process During the process of death qualification, prospective jurors frequently equivocate regarding their ability or willingness to impose one of the two available penalties. When confronted with such equivocation,a trial judge must determine whether the uncertainty bespeaksan inability or substantial impairment of the capacity to apply the law conscientiously and without favoritism. [Tf '© Conversely,“the belief that death should be imposed ipsofacto upon conviction of a capital offense reflects directly on that individual’s inability to follow the law.” (Morganv. Illinois, supra, 504 U.S. at p. 735.) “Any juror who would imposedeath regardless of the facts and circumstances of conviction cannot follow the dictates of the law.” ([bid.) -284- Aselaborated below, the standard applied by thetrial court in making such a determination differs from the standard pursuant to which an appellate court reviewsthetrial court’s determination. In the trial court, equivocation is a factor to be considered; it may, upon inquiry, prove to be commensurate with inability or substantial impairment, but, in andofitself, it is not dispositive. In the appellate court,a trial court’s determination that equivocation actually signified inability or substantial impairmentwill be dispositive, provided the trial court conducted an adequate inquiry and applied the correct standard in reaching its determination. Thus, whereas equivocation triggers a duty on the part of a trial court to inquire whetherthe prospective juror’s uncertainty is actually tantamount to inability or substantial impairment, equivocation can effectively negate the need for any appellate inquiry. Significantly, and obviously, the equivocation of a given venireperson may indicate impairment, but not substantial impairment. While the latter amounts to cause for removal, the former doesnot. 1) Background— The Evolution ofHigh Court Precedent Pursuant to Which Equivocation Has BecomeIncreasingly Relevant In Witherspoonv.Illinois, supra, 391 U.S. 510, the Supreme Court of the United States adopted a rigorous standard pursuant to which exclusion of a -285- prospective juror for cause due to views regarding the death penalty was proper only if the prospective juror madeit “unmistakably clear” during voir dire that he/she “would automatically vote against the imposition of capital punishment without regard to any evidence that might be developedat the trial of the case....” (id. at p. 522, fn. 21, italics in the original.) Underthat standard, a prospective juror’s mere equivocation regarding willingnessorability to vote in favor of capital punishment wasinsufficient to constitute cause for removal. For, mere equivocation does not amount to unmistakableclarity. Then, in Wainwright v. Witt, supra, 469 U.S. 412, the Court retreated from the inflexible Witherspoon standard'®and “clarified” that a prospective juror may be removed based on viewsconcerning capital punishmentthat “would ‘prevent or substantially impair the performanceofhis [or her] duties as a juror in accordance withhis [or her] instructions and his [or her] oath.’” (/d. at p. 424, italics added; quoting Adamsv. Texas, supra, 448 U.S. 38, 45.) In order to make a finding of substantial impairment, the trial court must be left with a “‘definite impression that a prospective juror would be unable to faithfully and impartially apply the law.’” (Wainwright v. Witt, supra, 469 U.S. at pp. 425-426,italics ' ‘Whenconsidering controlling precedents concerning this subject, “Witherspoonis not the final word, butit is a necessary starting point.” (Uttechtv. Brown,supra, 551 U.S.at pp. 5-6.) -286- added.)'®” Under this refinement of the Witherspoon standard, mere equivocation remainsinsufficient, in and ofitself, to justify removal for cause, because equivocation does not necessarily connote unwillingnessorinability to follow the law. Nevertheless, because unmistakable clarity is no longer required, issues arise when prospective jurors are removed pursuantto prosecutorial challenges for cause after making equivocal or ambiguous remarks regarding their ability or willingness to vote for the death penalty. Such issuesarise frequently, because, as this court has recognized, prospective jurors “will often give conflicting or confusing answers regarding [their] impartiality or capacity to serve....” (People v. Weaver (2001) 26 Cal.4th 876, 910, cert. den. sub nom. Weaverv. California (2002) 26 Cal.4th 535 U.S. 1058.) /// //] '*7 “Becausethis rule is grounded in the Sixth Amendment’s guarantee of an impartial jury, not the Eighth Amendment, exclusions underit are no different from exclusionsofjurors for any other form ofbias.” (United States v. Mitchell (9" Cir. 2007) 502 F.3d 931, 955,cert. den. (2008) 128 S.Ct. 2902; citing Wainwright v. Witt, supra, 469 U.S.at pp. 423, 429.) “[T]here is nothing talismanic about juror exclusion under Witherspoon merely becauseit involves capital sentencing juries.... Here, as elsewhere, the quest is for jurors who will conscientiously apply the law andfind the facts.” (Witt, supra, 469 U.S.at p. 423.) -287- a d 2) Equivocation Is Not Tantamountto Substantial Impairment. As noted, even after the Witt Court’s refinement of the Witherspoon standard, mere equivocation or ambivalenceon the part of a prospective juror does not give rise to cause for removal. Thus, the Illinois Supreme Court has explained: ‘While a prospective juror may be removed for cause when that person’s views would preventor substantially impair the performanceofhis [or her] duties as a juror [citation], an equivocal response doesnot require that a juror be excused for cause.” (People v. Buss (1999) 187 Ill.2d 144, 187 [718 N.E.2d 1, 26], internal quotation marks omitted, cert. den. sub nom. Bussv. Illinois (2000) 529 U.S. 1089; accord, People v. Williams (1996) 173 Ill.2d 48, 67 [670 N.E.2d 638, 648] [“Simply giving an equivocal response... will not require that a venireperson be excused for cause.”’]; see also United States v. Johnson (8"Cir. 2007) 495 F.3d 951, 963-964 [upholdingtrial court’s determination that juror could be impartial despite juror’s “equivocal answers”]; Hightower v. Schofield (11" Cir. 2004) 365 F.3d 1008, 1039-1040 [no error wheretrial court refused to excuse juror for cause based upon “equivocal answers”];'® State v. Erickson (1999) 227 Wis.2d 758, 776 [596 N.W.2d 749, 759] [“[A] prospective juror need '88 The Eleventh Circuit’s decision in Hightower was vacated on other grounds in Hightowerv. Schofield (2005) 545 U.S. 1124. -288- not respondto voir dire questions with unequivocal declarations of impartiality.”]; cf. Head v. Carr (2001) 273 Ga. 613, 622-624 [544 S.E.2d 409, 417-419] [finding defendant was not prejudiced by counsel’s failure to moveto strike prospective jurors whoalternated betweenstating that they would automatically impose the death penalty and stating that they could vote to imposea life sentence].) In accord with the foregoing decisions, this court has held that prospective jurors are not removable for cause when they 1) vacillate between assertions that they would automatically impose the death penaltyin all cases of intentional, deliberate, or premeditated murder, and assertions that they would consider both available penalty options, or 2) otherwise equivocate concerningtheir ability to consider the punishmentof imprisonmentfor life without the possibility of parole as an alternative to the death penalty. (People v. Riggs (2008) 44 Cal.4th 248, 285-288, cert. den. sub nom. Riggs v. California (2009) 129 S.Ct. 2386; People v. Lewis, supra, 43 Cal.4th at pp. 488-490; People v. Blair, supra, 36 Cal.4th at pp. 740-744.) 3) Equivocation May Reflect a Degree ofImpairment Without Rising to the Threshold Level of Substantial Impairment. In a federal habeas case involving review of a claim that a prospective juror was improperly dismissed for causein violation of Witherspoon, the Third Circuit -289- Court ofAppeals was confronted with facts that caused it to discuss the difference between mere impairment andthe degree of impairment required by Witherspoon, i.e., substantial impairment. Martini v. Hendricks (3d Cir. 2003) 348 F.3d 360, 362-368, cert. den. (2004) 543 U.S. 1025. The prospective juror, who was personally opposedto the death penalty(id. at p. 364), gave “noncommittal” responses to questions concerninghis ability to vote to impose the death penalty. (Id. at p. 367.) The responses“create[d] considerable doubt as to whether [the prospective juror] could separate his personal beliefs (his opposition to the death penalty) from the task at hand.” (bid.) According to the Third Circuit, “(t]he inevitable question [was] howtointerpret the ‘I think so’s’ and the ‘I guess so’s,’ which constitute[d] the bulk” of the prospective juror’s responses to death- qualification questions put to him duringvoir dire. (/d. at pp. 366-367.) While the court felt “constrained,” under AEPDA,'” which requires “very substantial deference”to state court factual determinations,'” to find a lack of “clear and '® AEDPAis the Antiterrorism and Effective Death Penalty Act of 1996. (Pub. L. 104-132, 110 Stat. 1214 (1996).) 0 28 U.S.C. § 2254(e)(1) is a part ofAEDPA,It provides: “In a proceeding instituted by an application for a writ of habeas corpusbya person in custody pursuantto a judgmentofa State court, a determination ofa factual issue made by a State court shall be presumedto be correct. The applicant shall have the burden of rebutting the presumption of correctness by clear and convincing evidence.” -290- convincing evidence”that the state trial court judge had incorrectly found substantial impairment(id. at pp. 367-368), the court acknowledgedthat the prospective juror “may have been somewhatimpaired[,]” but “not ‘substantially impaired,’ as Witherspoon requires.” (Id. at p. 368.) Thus, had the Third Circuit not been constrained by the exceedingly deferential AEDPA standard, which requires greater deference than this court extendstotrial court findings in the Witherspoon/ Witt context, the Third Circuit may have grantedrelief. 4) Appellate Treatment ofEquivocation Differs From the Mannerin Which a Trial Court Must Handle Equivocation. In a case where a prospective juror equivocates abouthis or herability to imposethe death penalty, trial courts are vested with broad discretion to determine ’ whetherinability or substantial impairment exists. (People v. Roldan (2005) 35 Cal.4th 646, 696-698, cert. den. sub nom. Roldan v. California (2005) 546 U.S. 986, disapproved on other grounds in People v. Doolin, supra, 45 Cal.4that p. 421, fn. 22.) In such a case,a trial court’s finding ofinability or substantial impairmentwill not be disturbed on appealif 1) the trial court applied the correct legal standard, 2) afforded the opportunity for an adequate inquiry regarding the viewsofthe prospective juror, and 3) reached the finding of inability or substantial impairment based upon substantial evidence contained in the record. -291- (Morganv.Illinois, supra, 504 U.S. at pp. 729-731; Gray v. Mississippi, supra, 481 US. at p. 661, fn. 10; People v. Heard (2003) 31 Cal.4th 946, 958-968,cert. den. sub nom. Heard v. California (2004) 541 U.S. 946; People v. Cash (2002) 28 Cal.4th 703, 718-723, cert. den. sub nom. Cash v. California (2003) 537 U.S. 1199.) Thefact that trial courts have broad discretion to determine whether equivocation demonstrates inability or substantial impairment does not mean that trial courts mayinvariably treat equivocation as inability or substantial impairment. To the contrary, it would be error for a trial court to necessarily equate equivocation with inability or substantial impairment. (Adamsv. Texas, supra, 448 U.S. at p. 50 & fn. 8 [exclusion ofprospective jurors who “were unable to positively state whetheror not their deliberations would in any way be ‘affected’” by the possibility of the death penalty is unconstitutional].) A court confronted with an equivocal prospective juror must endeavorto ascertain the prospective juror’s “true state of mind.” (People v. Ghent (1987) 43 Cal.3d 739, 768 , cert. den. sub nom. Ghent v. California (1988) 485 U.S. 929.) The appellate standard ofreview, pursuant to which deference is extended to a trial court’s finding that equivocation amountedto inability or substantial impairment, differs from the legal standard applied bya trial court confronted with -292- equivocation. As discussed above,the trial court seeks to answerthe ultimate question of whetherinability or substantial impairmentexists, i.e., whether the prospective juror’s equivocation derives from a “true state of mind”that prevents or substantially impairs the prospective juror’s ability to be fair and impartial. (Ibid.) That question is not automatically answeredin the affirmative in the event of equivocation. Rather, the question must be answeredin the negative unless the court is left with the “definite impression that a prospective juror would be unable to faithfully and impartially apply the law.” (Wainwright v. Witt, supra, 469 U.S. at pp. 425-426.) Thus, whereas the appellate court applies a deferential standard, whenreviewinga trial court’s determination that a prospective juror was substantially impaired, the trial court applies an exacting, probing standard to determine whether the equivocal prospective juroris m fact substantially impaired. b. The Requirement ofSubstantial Evidence ofSubstantial Impairment In order for an appellate court to uphold the removal of a prospective juror for cause against a Witherspoon challenge, the record must contain substantial evidencethat the prospective juror lacked impartiality, in that he or she would have been unable to fairly consider voting for the death penalty. /// -293- Oneofthis court’s capital decisions demonstrates the consequence of removalof a prospective juror without substantial evidence of bias: In People v. Heard, supra, 31 Cal.4th 946,this court set aside a death penalty judgment due to Witherspoon/Witt error in the removalofa single prospective juror. (/d. at 958- 968, 982.) In his juror questionnaire, the prospective juror made reference to “past psychological experiences” or bad childhood abuse to which the defendant may have been subjected,as possible justifications for imposing a sentenceoflife withoutthe possibility of parole. Following up on this subject during voir dire, the trial court asked the prospective jurorif the presence of “past psychological factors would weigh heavily enoughthat [the prospective juror] probably wouldn’t imposethe death penalty[.]” Following a lengthy pause, the prospective juror responded,“Yes, I think they might.” When the court queried whether the prospective juror was “absolutely committed to that position[,]” he responded affirmatively. However, the prospective juror qualified that answer by explaining that he did not think he would automatically vote for life without parole based upon any conceivable “psychological factors.” (/d. at pp. 960-961.) The prosecutor challenged the prospective juror for cause. Defense counsel objected. Thetrial court stated, “I will excuse for cause. I think that his answers were suchthat I think he would, given background conditions, vote forlife in -294- prison withoutpossibility of parole.” (Id. at p. 963, internal brackets omitted.) This court concluded there was no “substantial evidence to support a determination that [the prospective juror] harbored views that would prevent or substantially impair the performanceofhis duties so as to support his excusal for cause.” (Id. at p. 965.) Thetrial court had failed to “explain what there wasin [the prospective juror’s] responses that indicated that he would not be willing or able to follow the law in determining whetherlife in prison without the possibility of parole, or death, was the appropriate punishmentin light ofall the evidence presented.” (/d. at p. 965.) As this court observed, the fact that the prospective juror indicated he might have been influenced by “psychological factors” in choosing between life and death did not demonstrate that he “would not properly be exercising the role that California law assigns to jurors in a death penalty case.” (Ibid.) Because the answers the prospective juror gave in response to questions in voir dire “indicated he was prepared to follow the law and had nopredisposition one wayorthe otheras to imposition of the death penalty[,]” the trial court erred in excusing him for cause. (/d. at p. 967.) In reaching this conclusion,this court was mindful of the deference accorded “to determinations made bya trial court in the course ofjury selection,” but foundthetrial court had “provided... virtually nothing of substance to which [this court could] properly defer.” (/d. at p. 968.) -295- Cc. Application ofan Erroneous Legal Standard As noted above, in the discussion concerning the standard of review applicable to Witherspoon/Witt claims, the deference that is generally owed to a trial court’s findings of fact “is inappropriate, where... the trial court’s findings are dependent on an apparent misapplication of federal law, [citation], and are internally inconsistent.” (Gray v. Mississippi, supra, 481 U.S.at p. 661, fn. 10.) D. Analysis Witherspoon/Witt error occurred in the instant case whenthetrial court removed D.M.for cause. First, the record contains no substantial evidence of inability or substantial impairment on the part of D.M. Second, no deferenceis warranted with respect to the trial court’s determination that D.M.lacked the requisite impartiality, because the trial court a) applied an erroneouslegal standard pursuant to which equivocation was deemed tantamountto inability or substantial impairment, and b) applied an erroneous double-standard pursuant to which equivocation onthe part of prospective jurors predisposed to imposethe death penalty was not deemedcause for removal. Thus, becausethetrial court’s finding regarding D.M.is entitled to no deference, and because no substantial evidence supportsthetrial court’s finding, the death penalty verdict imposed bythe jury from which D.M.wasexcluded cannotbe upheld. -296- 1. No Substantial Evidence ofInability or Substantial Impairment The record doesnot provide any basis for a finding D.M.’s views would have “‘prevent[ed] or substantially impair[ed] the performanceofhis duties as a juror....” (Wainwright v. Witt, supra, 469 U.S. at p. 424.) He unequivocally expressedhis belief that the death penalty is warranted in certain circumstances. (15 RT 2992-2993; 49 Supp. I CT 14152-14154, 14157.) In fact, he expressed the view that those convicted ofmurder should be swiftly executed. (49 Supp. I CT 14154.) The only uncertainty he expressed pertained to whether he would be able to vote for the death penalty if the time ever came for him to actually have to make the decision. (15 RT 2993, 2995-2997; 49 Supp. I CT 14158.) At no point did he indicate he would be unable to do so. Rather, he said he would beableto listen to the evidence presented and makean appropriate determination as to punishment. (15 RT 2993.) He indicated in his questionnaire that he could vote to impose the death penalty. (49 Supp. I CT 14154.) And, when the prosecutor asked him during sequestered voir dire if he could vote for the death penalty if he deemed that penalty appropriate after considering the evidence, D.M. answered,“I think so. I really don’t knowuntil I face that situation.” (15 RT 2993.) Thus,like the prospective juror who waserroneously excused for cause in People v. Heard, supra, 31 Cal.4th 946, D.M.“indicated he was prepared to follow the law and had -297- no predisposition one wayorthe other as to imposition of the death penalty.” (Ud. at p. 967.) D.M.’s hesitancy to unequivocally commit in advance that he would be able to vote for the death penalty in this case does not constitute evidencethat his views would have prevented or substantially impaired his ability to fulfill his duties as a juror. Rather, his uncertainty reflected the thoughtfulness and deliberate introspection one would expect of a reasonable, law-abiding prospective juror who generally supports the death penalty and whois confrontedforthefirst time with the prospect of assessing whether he could personally vote to impose the death penalty on a humanbeing. The reasonableness and lack of cognizable bias (i.e., absence of evidence of inability or substantial impairment) evinced by D.M.’s questionnaire responsesandvoir dire testimony is compellingly fortified by the responses given during jury selection by another prospective juror whose job affords a unique opportunity to develop an informed perspective on the death penalty: That prospective juror was a deputy attorney general who works on capital appeals. (35 Supp. I CT 10299-10337.) In response to a question as to whether he could impose the death penalty upon Mr. Sandovalifhe “believed, after hearing all the evidence, that the penalty was appropriate[,]” the prospective juror / deputy attorney general answered: “Yes, I believe so. Although I doubt -298- anyone can fully appreciate his or her ability to do so until actually asked to.” (35 Supp. I CT 10326, italics added.) Thus, the deputy attorney general’s appropriate, impartial position was essentially the same as D.M.’s. Asthis court has recognized,“a prospective juror who simply would findit ‘very difficult’ ever to impose the death penalty, is entitled — indeed, duty bound — to sit on a capital jury, unless his or her personal viewsactually would prevent or substantially impair the performanceofhis or her duties as a juror.” (People v. Stewart, supra, 33 Cal.4th at p. 446, internal quotation marks and brackets omitted, italics in the original.) D.M. wasprecisely this type ofjuror. He believes in the death penalty. (15 RT 2992-2993; 49 Supp. I CT 14152-14154, 14157.) Nevertheless, he felt it would be very difficult, but not impossible or improbable, for him to vote to imposethe death penalty. (1S°-RT 2993; 49 Supp. I CT 14154.) He waswilling and able to listen to the evidence, follow the court’s instructions, and decide upon an appropriate penalty. (15 RT 2993-2994, 2997-2998.) Thus, the trial court’s disqualification of D.M. violated Mr. Sandoval’s constitutional rights to a reliable penalty verdict, due process, and a fair and impartial jury. (Gray v. Mississippi, supra, 481 U.S. at pp. 657-659; Adamsv. Texas, supra, 448 U.S. at pp. 45, 49-51; Witherspoonv.Illinois, supra, 391 U.S. at pp. 521-523; People v. Heard, supra, 31 Cal.4th at pp. 958-968.) -299- EvenifD.M.could plausibly be deemed impaired, he cannot be deemed substantially impaired. (Martini v. Hendricks, supra, 348 F.3d at pp. 362-368.) At no time did hesay he could not impose the death penalty. Rather, he vacillated between saying he could, he thought he could, and he did not know whetherhe could. (15 RT 2993-2998; 49 Supp. I CT 14154, 14158.) A prospective juror who supports the death penalty but equivocates in this limited respect regarding his ultimate ability/willingness to pull the trigger at decision time in capital deliberations cannot be deemed substantially impaired. There must be something more, such as revealing mannerismsor body language, none of which were noted by the trial court with respect to D.M. Nothing in D.M.’s written and verbal responses to questions propoundedto him could haveleft a reasonable and objective decision maker with “the definite impression that [D.M.] would be unable to faithfully and impartially apply the law.” (Wainwright v. Witt, supra, 469 U.S.at p. 426.) Finally, unlike the circumstances in Uttecht v. Brown, supra, 551 U.S.1, where defense counsel did not object to removal of the prospective juror in question, thereby implicitly acknowledging substantial impairment(id.at p. 18), defense counsel in the instant case opposed the prosecution’s request to remove D.M. Defense counsel stressed D.M.’s express willingness to follow the law. -300- After the trial court indicated that it believed cause existed to remove D.M.., defense counsel asked the court to bring D.M. back into the courtroom for further questioning. The court denied the request. (15 RT 2998-2999.) Thus, thetrial court was afforded ample opportunityto articulate any legitimate justification for removing D.M. However, there was none. The prosecution, as the proponent of the challenge for cause against D.M., bore the burden of proving his inability or substantial impairment. (Morganv.Illinois, supra, 504 U.S. at p. 733; Lockhartv. McCree, supra, 476 U.S. at p. 170, fn. 7; Wainwright v. Witt, supra, 469 U.S.at p. 423; Reynolds v. United States, supra, 98 U.S. at p. 157.) The prosecution adduced nosuchproof. 2. The Trial Court’s Application ofErroneous Legal Precepts Normally, a trial court’s finding that a prospective juror cannot be fair and impartial is entitled to deference when the finding is challenged on appeal. (Uttecht v. Brown, supra, 551 U.S.at p. 9.) However, such deference “‘is inappropriate, where,as here, the trial court’s findings are dependent on an apparent misapplication of federal law, [citation], and are internally inconsistent.” (Gray v. Mississippi, supra, 481 U.S.at p. 661, fn. 10.) The trial court in the instant case erroneously a) treated equivocation as tantamountto cause, and b) applied a double-standard,i.e., one standard as to challenges for cause made by -301- the defense, and another, substantively inconsistent standard as to challenges for cause madebythe prosecution. Accordingly, no deference is warranted with respectto the trial court’s decision to excuse D.M.for cause. a. Erroneously Equating Equivocation With Cause When confronted with prospective jurors who expressed hesitancy and/or ambivalence regarding their capacity to impose the death penalty, the trial court erroneously treated such equivocation as grounds for exclusion ipso facto. As noted above, during the round ofjury selection that preceded the guilt phase, the trial court asserted that “when jurors equivocate with '“I think so!”!, '“I feelI could”), '[ don’t think I could!’!, I don’t know"), that’s a challenge for cause that’s appropriate.” (4 RT 814.) In support of this proposition, the court cited to four ofthis court’s decisions: People v. Kaurish, supra, 52 Cal.3d 648; People v. Hamilton, supra, 48 Cal.3d 1142; People v. Coleman, supra, 48 Cal.3d 112; and People v. Guzman, supra, 45 Cal.3d 915. (4 RT 814.) This court did not hold in any of these four cases that a trial court may apply a standard under which equivocation is treated as tantamountto inability or substantial impairment. While this court did expressly apply a standard in one of these cases pursuant to whichit deferred to a trial court determination that equivocation on the part of pro-life prospective jurors amountedto inability or substantial impairment, that standard -302- was a deferential standard of appellate review. (Guzman, supra, 45 Cal.3d at pp. 954-956.)'” //] '! Twoofthe cases cited by the trial court — Kaurish and Coleman — had nothing to do with equivocation regarding willingness to vote for the death penalty. In Kaurish, although this court considered an issue concerning equivocation on the part of a venireperson, the equivocation had nothing to do with death-qualification. The venireperson had several relatives who were police officers, and she made conflicting remarks as to whether she would give the testimony ofpolice officers greater credence than the testimony of other witnesses: (People v. Kaurish, supra, 52 Cal.3d at pp. 674-675.) In Coleman,a pro-life prospective juror did not equivocate regarding the death penalty. Sheflat-out said she could not vote to imposeit. She only equivocated regarding her ability/willingness to return a first degree murder conviction in a capital case. Becauseofherflat-out, unequivocal unwillingness to impose the death penalty, this court concluded she “wasproperly disqualified because her views would have prevented or substantially impaired the performanceofher duties as a juror.” (People v. Coleman, supra, 48 Cal.3d at pp. 136-137.) Additionally, the “equivocation” of someofthe prospective jurors in the Hamilton and Guzman cases more closely resembled unmistakable clarity than ambivalence. For example, a prospective juror in Hamilton indicated that he would be unable to vote for the death penalty unless he had personally witnessed the defendant’s commission of the murder. This court noted that any ambiguities in his responses to questions during voir dire were ultimately “eliminated,” and that it was “unmistakably clear that he would not vote for the death penalty, regardless of the evidence....” (People v. Hamilton, supra, 48 Cal.3d at pp. 1165- 1166.) And, one of the prospective pro-life venirepersons in Guzmanstated that he did “not think” he would have been able to vote for the death penalty in Charles Manson’scase, and he was “not sure” whether he could “conjure up in his mind a crime so heinous that he would vote for the death penalty, even one which involved him personally.” (People v. Guzman, supra, 45 Cal.3d at p. 955, internal quotation marksandbrackets omitted.) Thus, these prospective jurors were excludable for cause underthe rigid, unrefined Witherspoon standard because of their unequivocal unwillingness to consider imposition of the death penalty. -303- Althoughthe deferential standard of appellate review in this context is necessarily unsuited for application at the trial court level, the trial court in this case applied an adaptation of that standard: Relying onthis court’s pronouncementsthata trial court’s factual finding of inability or substantial impairmentwith respect to an equivocal prospectivejuroris generally binding upon a reviewing court (People v. Guzman, supra, 45 Cal.3d at p. 956 [noting that the trial court “could properly have concluded from their responsesthat [the | prospective] jurors’ views would ‘prevent,’ or at least ‘substantially impair,’ performanceoftheir duties[,]” and deferring to that conclusion]; People v. Ghent, supra, 43 Cal.3d at p. 768 [“where equivocal or conflicting responsesare elicited regarding a prospective juror’s ability to impose the death penalty, the trial court’s determinationasto his true state of mindis binding on an appellate court’”’]'”), the trial court felt it was bound to treat equivocation as inability or substantial impairment. (4 RT 814 [“when jurors equivocate with ‘I think so!”!, ‘I feel I could}, [J] don’t think I could!”}, “I don’t know"’!, that’s a challenge for cause”); 15 RT 2998-2999 [removing D.M.for cause because “he’s too ambivalent” and “he’s not going to know until the momentoftruth hits him between the eyes”’].) '? This court cited Ghentin three of the cases cited by the trial court: People v. Hamilton, supra, 48 Cal.3d at p. 1165; People v. Coleman, supra, 48 Cal.3d at p. 137; and People v. Guzman, supra, 45 Cal.3d at p. 955; -304- However, as discussed above,a trial court cannot deem equivocation to be proof of inability or substantial impairment. (Adams v. Texas, supra, 448 U.S.at p. 50 & fn. 8 [exclusion of prospective jurors who “were unableto positively state whetheror not their deliberations would in any way be ‘affected’” by the possibility of the death penalty is unconstitutional].) Instead the court must seek to discern whethera prospective juror, regardless of any equivocation,is able “to faithfully and impartially apply the law.” (Wainwright v. Witt, supra, 469 U.S.at p. 426.) The court must seek to discern the prospective juror’s “true state of mind.” (People v. Ghent, supra, 43 Cal.3d at p. 768.) Thus, the trial court mistakenly replaced the standard by whichit should have assessed whether prospective jurors lacked impartiality with an awkward adaptation of an appellate standard of review. Because ofthis misapplication of legal principles, no deference is appropriate with respect to the trial court’s finding that D.M. was subject to removal for cause. b. Double-Standard Thetrial court also misapplied governing legal principles in another respect in its rulings on challenges for cause: Althoughtrial courts are required to be “evenhanded”in the death-qualification process (People v. Mills, supra, 48 Cal.4th at p. 189; People v. Champion (1995) 9 Cal.4th 879, 908-909),thetrial -305- court in this case employed a double-standard with respect to ambivalent answers by prospective jurors in the death-qualification process: While the court treated prospective jurors’ ambivalence or equivocation aboutthe ability to vote for death as groundsfor disqualification (4 RT 814; 15 RT 2998-2999), when the defense madereverse-Witherspoon challenges for cause'” to pro-death prospectivejurors, '3 A reverse-Witherspoon challenge for cause allows an accused ontrial for his life to remove “those biased persons on the venire whoas jurors would unwaveringly impose death after a finding of guilt.” (Morganv. Illinois, supra, 504 U.S.at p. 733.) Even if such prospective jurors profess an ability and willingness to generally follow the law, they are subject to removal for cause if voir dire reveals that they “would impose death regardless of the facts and circumstances....” (/d. at 735.) Such prospective jurors actually “cannot follow the dictates of the law.” (/bid.) Thus, the availability of reverse-Witherspoon challenges makes the death-qualification process a two-waystreet: Prospective “Jurors — whetherthey be unalterably in favor of, or opposed to, the death penalty in every case — by definition are ones who cannot perform their duties in accordance with law,their protestations to the contrary notwithstanding.” (/bid.) Just as “the State may exclude from capital sentencing juries that ‘class’ of venire[persons] whose views would prevent or substantially impair” their ability to imposethe death penalty if warranted (Wainwright v. Witt, supra, 469 U.S.at p. 424, fn. 5), the accused may exclude“that ‘class’ of venire[persons]” whose views would prevent or substantially impair their ability to impose a sentenceoflife without the possibility ofparole if warranted. (Morgan, supra, 504 U.S.at pp. 733-734.) Thus, the State’s right to exercise Witherspoon challenges for cause against prospective jurors who lack the “qualifications” to vote for the death penalty exists in tandem with and is counterbalanced by the accused’s “complementary”right to exercise reverse-Witherspoon challenges for cause against prospective jurors wholack the “qualifications” to vote for a sentence of life without the possibility ofparole. (Jbid.) It is a two-way-street. (People v. Cash, supra, 28 Cal.4th 703, 720 [“the qualification standard operates in the same manner whethera prospective juror’s viewsare for or against the death penalty’’].) -306- the court did not treat ambivalence or equivocation aboutthe ability to vote for life withoutthe possibility of parole as grounds for disqualification. “The qualification standard operates in the same manner whether a prospective juror’s viewsare for or against the death penalty.” (People v. Lewis, supra, 43 Cal.4th at p. 488, internal quotation marksand brackets omitted.) However, contrasting the trial court’s treatment of the prosecution’s challenge for cause as to D.M.with the three reverse- Witherspoon challenges for cause made by the defense as to prospective jurors Z.A., J.C., and C.D., reveals that the trial court applied a double standard rather than proceeding with evenhandedness: 1. Prospective Juror Z.A. Prospective juror Z.A. stated she was unsure whether she could be fair and impartial to both sides in this case. (15 RT 3024-3025.) In her questionnaire, Z.A. wrote that she believes the death penalty is “appropriate” and “necessary” in some cases. (37 Supp. I. CT 10716, 10719.) During sequestered voir dire, she unequivocally stated she would be able to imposethe death penaltyin this case. (15 RT 3022.) Shealsoinitially stated she would be opento the possibility of voting for either the death penalty orlife in prison without the possibility of parole. (15 RT 3023.) However, when confronted with case-specific information, she began to equivocate aboutherability to considerlife without parole as an -307- alternative to the death penalty: Asked whether she could be fair and impartial, knowing that Mr. Sandoval was convicted of murdering a police officer and was involved in an additional homicide, Z.A. answered,“I don’t know.[{]] I think so.” (15 RT 3023-3024.) Then, when asked generally at the conclusion ofher voir dire examination whethershe could be fair and impartial, she answered, “I think so.[J] I don’t know.” (15 RT 3024-2035.) Defense counsel challenged Z.A. for cause due to her ambivalence. The trial court denied the motion. (15 RT 3025-3026.) If, as the trial court stated, equivocation with an answersuchas “I don’t know”justifies a challenge for cause (4 RT 814), and if ambivalence on D.M.’s part was sufficient to support a challenge for cause (15 RT 2998-2999), then, under an even-handedstandard, Z.A.’s equivocation and ambivalence abouther ability to be fair and impartial should have subjected her to removal for cause. 2. Prospective Juror J.C. Prospective juror J.C. stated unequivocally that she could vote for the death penalty in this case (16 RT 3199), but that “it would be very hard”for her to vote for life without the possibility of parole. (16 RT 3200.) She believes convicted murderers should be swiftly executed. (35 Supp. I CT 10248.) J.C. said that becauseshe has “a lot of respect for police officers,” the defense would have to -308- “really convince” her that Mr. Sandovaldid not deserveto die for killing Detective Black. (16 RT 3200.) She said she could only imagine not voting for the death penalty if there was evidence that Detective Black had been “a rogue cop,” who had been “going aroundkilling everybody or somethinglike that.” (16 RT 3200- 3201.) Although she declined to say that her decision to vote for the death penalty would be automatic, she said “I’m really leaning ... toward the death penalty, if you wantthe truth.” (16 RT 3201.) After the foregoing information waselicited in voir dire conducted by the prosecutor and defense counsel, the trial court inquired whether J.C. would listen to any evidence presented by the defense and take that evidence into account before reaching a decision. J.C. responded affirmatively. (16 RT 3201-3202.) J.C. then exited the courtroom atthe trial court’s request. Citing People v. Boyette, supra, 29 Cal.4th 381, defense counsel moved to excuse J.C. for cause. Defense counsel contended J.C.’s answers demonstrated substantial impairment. (16 RT 3202.)'” Thetrial court denied the motion. (16 RT 3203.) The substance '% Tn Boyette, this court held trial court erred by rejecting a reverse- Witherspoonchallenge for cause to a prospective juror who wasstrongly in favor of the death penalty. (People v. Boyette, supra, 29 Cal.4th at pp. 415-418.) The prospective juror “indicated he would apply a higher standard (‘I would probably have to be convinced’)to a life sentence than to one of death, and that an offender (such as defendant) who killed more than one victim should automatically receive the death penalty. Finally, he admitted he would not follow aninstruction to -309- of the court’s ruling is set forth in the following exchange betweenthe court and defense counsel: COUNSEL: THE COURT: COUNSEL: THE COURT: COUNSEL: THE COURT: COUNSEL: THE COURT: Sheis substantially impaired. She’s said that. Really[?] [§]] Based on what? Based on her answers. Based on what, sir? That she said ‘I would have to be convinced[.] I’m goingto vote for the death penalty.!”! I understood her to say she’d listen and weighall the answers.” I don’t know whythe court is taking it uponitself to try and qualify them for the death penalty. Well, Mr. Ringgold, the Hovey issue you’re supposed to address is whetheror nottheir personal views would preclude them from listening to the evidence and weighing the evidence and reaching an appropriate verdict. And whenshesaid that she wouldlisten to the evidence, weigh the evidence, and then decide the verdict and would not automatically vote for death under Hovey, that’s the appropriate answer. assumethat a sentence oflife in prison with no possibility of parole meant the prisoner would neverbe released.” (/d. at p. 418.) As this court explained, the prospective juror should have been excused for cause becausehis views“would have prevented or substantially impaired the performanceofhis duties as a juror in accordance withhis instructions andhis oath.” (/bid., internal quotation marks and brackets omitted.) -310- /// /// COUNSEL: THE COURT: COUNSEL: THE COURT: COUNSEL: THE COURT: COUNSEL: THE COURT: COUNSEL: THE COURT: Shesaid, “I would probably vote for the death penalty.” Leaning towardsthe death penalty. No.[{] Probably vote. She did not say that she would automatically vote for the death penalty, Mr. Ringgold. That’s whatI heard. She doesn’t have to say automatically. [{] She said, I would probably have to be convinced. I’m leaning strongly in favor ofthe death penalty....°" I didn’t hear the same thing you heard.[{] I'll note yourobjection... I know that the court wants us to hurry through this process. No,sir. I don’t think that’s a fair statement. I’m not hurrying. Well, you’re stopping voirdire. No.[§]] You’ve taken an inordinate amount of time. And you’ve asked questions way beyond Hovey. And I think I’ve been tremendously patient with questions that haven’t qualified under Hovey, and I’m taking it up now. -311- COUNSEL: Andit’s the perception of the defendant that you are rehabilitating jurors that have clearly said they could not be fair and [are] predisposed to give the death penalty. And the court is leading them into I guess whatthe court feels is the proper answer to keep them onthe panel. THE COURT: I don’t agree with you. (16 RT 3202-3204.) The court’s assertion that it “didn’t hear” J.C. stating that she “would probably have to be convinced[,]” and that she was“leaning strongly in favor of the death penalty” (16 RT 3203), indicates that the court apparently did not hear what J.C. actually said. As summarized above,J.C. did in fact state that “it would be very hard for [her]” to vote for life without parole in this case (16 RT 3200), the defense would haveto “really convince [her]”not to vote for the death penalty (16 RT 3200), and there was no way she could conceive of voting for a penalty other than death unless the defense presented evidence that Detective Black had been a “rogue cop” who had gone “around killing everybody.” (16 RT 3200-3201.) She emphatically stated: “I’m really leaning ... toward the death penalty, if you want the truth.” (16 RT 3201.)!”5 /// ‘> Tf the trial court missed someofJ.C.’s remarks, it could have simply had the court-reporter read back J.C.’s voir dire. -312- Having already presided over the guilt phase andthe original penalty phase, the trial court was well aware that there was no evidence that Detective Black had been a “rogue cop.” To the contrary, it was undisputed that Detective Black was a fine and well-respected police officer and a good and decent person. Thus, it was apparent that no evidence wasgoing to be introduced in the penalty-phasere-trial to support the only scenario ofwhich J.C. could conceive that would have led her to considerlife withoutparole as an alternative to the death penalty. Accordingly, by the terms of her ownvoir dire testimony, J.C. was virtually a lock to vote for the death penalty. While she professed a willingness to listen to the evidence presented by both sides and to take that evidence into account before reaching a decision (16 RT 3201-3202), so too did D.M.assert his willingness to considerall the evidence concerning the crime and Mr. Sandoval’s backgroundin making an appropriate penalty determination. (15 RT 2993-2994, 2997-2998.) Thus, under an evenhanded assessment,ifthe virtual certainty of J.C.’s unwillingness to vote for life without parole did not constitute cause for removal, D.M.’s uncertainty abouthis ability to vote for the death penalty should not have constituted cause for removal. /// /// -313- r d 3. Prospective Juror C.D. Prospective juror C.D. believes the death penalty “is an appropriate punishmentfor [a] capital crime[.]” (35 Supp. I CT 10170.) In his questionnaire, prospective juror C.D. wrote that he does not think it is important to know as muchaspossible about a capital defendant and his background in deciding between the possible penalties of death orlife in prison without parole. (35 Supp. I CT 10173.) During sequestered voir dire, C.D. reaffirmed his view in this regard. (16 RT 3185-3186.) As he putit, “We are responsible for our actions, howeveryou gotto that point.” (16 RT 3186.) He said Mr. Sandoval’s “action is what he wasbeingtried for, not his background.” (16 RT 3187.) After the court pointed out that the law requires consideration of the defendant’s background and history (16 RT 3187), defense counsel asked whether C.D. would automatically vote for the death penalty, without considering background information, because Mr. Sandoval had killed a police officer. However, before C.D. could answer, the court interrupted, and asked,“Did you ever say that you wouldn’t listen to information about his background?” C.D. responded, “I didn’t say that. No.” C.D. then said he would listen to information about Mr. Sandoval’s background. (16 RT 3188.) When defense counsel followed up by inquiring whether C.D. could conceive of any information regarding Mr. Sandoval’s background that -314- would makea difference to C.D., the prosecutor objected. The court sustained the objection, asserting, “That’s ... improper Hovey.” (16 RT 3188-3189.) The court said the issue is whether C.D.’s views about the death penalty would prevent him from considering backgroundevidence. In response, C.D. said he would listen to the background evidence, but was “predisposed to the death penalty in the case of the death of an officer.” (16 RT 3189.) In response to further questioning from defense counsel, C.D.indicated that he wasnotstarting in a neutral place, that he was pro-death, and that the defense would have to convince him not to impose the death penalty. (16 RT 3189.) Additionally, C.D. respondedaffirmatively when counsel asked whether he would be even more predisposed to vote for the death penalty if the prosecution presented evidence that Mr. Sandoval had been involvedin a secondkilling. (16 RT 3190.) Thereupon,thetrial court interceded, and concluded the voir dire of C.D. with the following abbreviated colloquy: THE COURT: All right. [§]] Let me ask youthis. [J] Given your views that you’re predisposed towardsthe death penalty, does that mean that you would... automatically vote for the death penalty without listening and considering and weighing the evidencethat both sides would present? -315- C.D.: No, Ma’am. THE COURT: No.[4] All right. [{]] Thank you.[§]] Come backat 2:30. We’re goingto start selection. (16 RT 3190-3191.) C.D. exited the courtroom (16 RT 3191), and Mr. Sandoval moved to have him excused for cause: COUNSEL: Your Honor, there’s a motion for cause. The man is trying to be as honest as he can. He’stelling the court that he’s predisposed for the death penalty. [{]] Do you thinkit’s fair to have a jury of 12 people that have the sameviewsthat he does? THE COURT: He says he wouldn’t automatically vote for the death — COUNSEL: That’s after he — THE COURT: Sir, please don’t talk while I’m talking. [§]] He said he would not automatically votefor death. That’s the Hovey test. [{] Your objection is noted and overruled. COUNSEL: You led him into saying that, Your Honor[.] You’re rehabilitating him to put him on the jury. I don’t think that’s fair. This man should have been excused for cause. a t THE COURT: Nosir. (16 RT 3191-3192,italics added.) /// -316- Of course, the test is not whether a prospective juror would automatically vote for a particular penalty, as the trial court stated. Rather, the test is whether certain viewsor predispositions of the prospective juror would prevent or substantially impair the prospective juror’s ability to consider and vote for either of the available penalties. In any event, no evidence was adduced that D.M. would have automatically voted for life without parole. Accordingly,if the fact that C.D. indicated he would not automatically vote for the death penalty was sufficient to render him not excludable for cause, and if the trial court was applying an evenhandedstandard, the fact that there was no evidence that D.M. would have automatically voted for a sentence oflife without parole should have rendered him not excludable for cause. However,the record reveals that the trial court was not applying an evenhanded standard. 3. Conclusion — The Trial Court’s Removal ofD.M. for Cause Was Erroneous Becausethetrial court failed to correctly apply governing legal principles whenit removed D.M.for cause,the trial court’s determination that D.M. was subject to removal for causeis entitled to no deference. Furthermore, because there is no substantial evidence that D.M. would not have been impartial, thetrial -317- court’s removal of him for cause was unconstitutional. E. Remedy Whena trial court erroneously sustains a prosecutor’s challenge for cause in violation of Witherspoon and Witt, the error “compell[s] the automatic reversal of [the] defendant’s death sentence, and in that respect the error is not subject to a harmless-errorrule, regardless [of] whether the prosecutor may have had remaining peremptory challenges and could have excused [the prospective juror(s) in question].” (People v. Heard, supra,31 Cal.4th at p. 966,italics in the original; citing Gray v. Mississippi, supra, 481 U.S. at pp. 666-668 (plur. opn. of Blackmun,J.); id. at pp. 669-672 (conc. opn. of Powell, J.); People v. Ashmus, supra, 54 Cal.3d at p. 962.) The exclusion of a single prospective juror in violation of Witherspoon and Witt mandates reversal. (Gray v. Mississippi, supra, 481 US. at pp. 666-668 (plur. opn. of Blackmun,J.); id. at pp. 669-672 (conc. opn. of Powell, J.); Davis v. Georgia (1976) 429 U.S. 122 (per curiam).) Because the trial court committed Witherspoon/Witt error by excusing prospective juror D.M.for cause during jury selection in the penalty-phaseretrial, the judgment of death mustbeset aside. /// /// -318- XIV. THE TRIAL COURT ABUSEDITS DISCRETION WHENIT DENIED THE DEFENSE REQUEST FOR A MISTRIAL AFTER DETECTIVE DELFIN, WHILE ON THE STAND, CALLED MR. SANDOVALA SON-OF-A-BITCH. During the prosecutor’s direct-examination of Detective Delfin in the penalty phaseretrial, the detective referred to Mr. Sandovalas a “son ofa bitch.” (19 RT 3835-3836.) Thetrial court immediately interrupted the proceedings and directed the jury to leave the courtroom andgoto the jury room. (19 RT 3836.) The detective was wearing his uniform when he uttered the profanity from the witness stand. (19 RT 3967.) The detective’s outburst had an impact on the jury: Accordingto the jurors, it was “ very tense” and “emotional”in the jury room during the break ordered by the court. (19 RT 3867, 3870.)!" Detective Delfin’s feelings and expression of rage against Mr. Sandovalare understandable. However, in the solemn context of a penalty phasetrial, his outburst was inappropriate, and it undermined Mr. Sandoval’sright to a fair and reliable penalty determination. "6 Evidence was presented regarding the atmospherein the jury room following the detective’s outburst, because events that occurred during the jury room at that time precipitated an investigation into juror misconduct. (See pp. 324-333, infra.) -319- Immediately after the detective’s outburst, defense counsel moved for a mistrial or dismissal of the penalty proceeding, on the groundsthat the eruption on the witness stand had violated Mr. Sandoval’s due process rights and was impermissibly inflammatory in the context of a capital sentencing hearing.'”” Although the trial court acknowledged that the detective’s outburst had been “dramatic” and “emotional,” the court denied the motion. In support ofits ruling, the court noted that Mr. Sandoval had already been found guilty. (19 RT 3836- 3837.)'®= Whenthe jury returned, the court admonishedthejurors that they were to “disregard the profanity that was used in characterizing the defendant by this witness.” (19 RT 3840.) A. Standard ofReview This court reviewsa trial court’s denial of a motion for mistrial under the abuse-of-discretion standard. (People v. Bolden (2002) 29 Cal.4th 515, 555, cert. den. sub nom. Bolden v. California (2003) 538 U.S. 1016.) '7 As noted in footnote 49, ante, defense counsel stressed that Detective Delfin is a governmentofficial, and in that connection, quoted from Justice Brandeis’ dissenting opinion in Olmstead v. United States, supra, 277 U.S.at p. 485: “When the government becomes a lawbreaker, it breeds contempt for the Jaw.” (19 RT 3837.) "8 Mr. Sandovalalso raised this issue as a groundforrelief in his newtrial motion. (6 CT 1506.) -320- B. Relevant Legal Principles 1. Mistrial A mistrial should be granted “when a party’s chancesofreceivinga fairtrial have been irreparably damaged.” (People v. Lewis and Oliver (2006) 39 Cal.4th 970, 1029, cert. den. sub nom. Lewis v. California (2007) 127 S.Ct. 2130, Oliverv. California (2007) 127 S.Ct. 2130.) 2. The Prohibition Against “Evidence” That Poses a Risk of Causing a Jury to Impose a Death Sentence Based on Passion Rather than Reason “[A]ny decision to impose the death sentence [must] be, and appearto be, based on reason rather than caprice or emotion.” (Gardnerv. Florida (1977) 430 US. 349, 358 (plur. opn. of Stevens, J.); accord Payne v. Tennessee, supra, 501 U.S. at p. 836 (conc. opn. of Souter, J.) [noting the “risk [of] a verdict impermissibly based on passion, not deliberation’’].) Thus, victim-impact witnesses “may not characterize or give opinions on the defendant.” (United States v. Sampson (D.Mass. 2004) 335 F.Supp.2d 166, 187; citing Booth v. Maryland (1987) 482 U.S. 496, 508, overruled on other grounds in Paynev. Tennessee, supra, 501 U.S.at p. 830 & fn. 2; accord Parker v. Bowersox (8"Cir. 1999) 188 F.3d 923, 931, cert. den. sub nom. Parker v. Luebbers (2000) 529 U.S. /// -321- a 1038)'” In Stockton v. Virginia (4" Cir. 1988) 852 F.2d 740, cert. den. sub nom. Virginia v. Stockton (1989) 489 U.S. 1071, the Eighth Circuit granted habeasrelief by vacating the death sentenceofa state prisoner because the jurors who had returned a death verdict had been exposed, during their deliberations, to remarks of a local restaurant owner whosuggested they “fry the son of a bitch.” (/d. at pp. 741-746.) The exposure of the jurors to these remarks denied the defendant “his right to a fair and impartial jury during the sentencing deliberations.” (Jd.at p. 741.) The “comment poseda potential for prejudice that was too serious to ignore.” (/d. at p. 745.) “[A] comment could be no more pointed than ‘I hope you fry the son-of-a-bitch.’” (/bid., internal brackets omitted.) The comment “was no mere offhand comment.” It was made by a man who “knewthat he was addressing his opinion to membersofthe jury....” (/d. at p. 746.) '? In Booth v. Maryland, supra, 482 U.S. 496, the Court held that victim impact evidence was banned bythe Eighth Amendmentinall capital sentencing hearings. (/d. at pp. 501-503.) Then, in Payne v. Tennessee, supra, 501 U.S. 808, the Court overruled Booth’s wholesale prohibition against victim impact evidence. (Id. at p. 830 & fn. 2.) However, Payne left certain aspects ofBooth intact; it “did not overrule the prohibitions in Booth against the admission of ‘information concerning a victim’s family members’ characterization of and opinions about the crime, the defendant, and the appropriate sentence.’” (United States v. McVeigh (10Cir. 1998) 153 F.3d 1166, 1217, cert. den. (1999) 526 U.S. 1007; quoting Payne, supra, 501 U.S.at p. 835, fn. 1 (conc. opn. of Souter, J.).) -322- 3. Remarks Made by a State Official, Disparaging a Criminal Defendant, Are Inherently Prejudicial In Parker v. Gladden (1966) 385 U.S. 363, the Supreme Court of the United States found a prejudicial violation of the Sixth and Fourteenth Amendmentrights of the accused when a court bailiff made the following statements about the accused to jurors: “‘Oh that wicked fellow [petitioner], he is guilty.... If thereis anything wrong[in finding petitioner guilty] the Supreme Court will correct it.’” (Id. at pp. 363-364, brackets in the original.) The bailiff was “an officer of the State....” (Ud. at p. 364.) The Court explained that “the official character of the bailiff— as an officer of the court as well as the State — beyond question carries great weight with a jury....” (Ud. at p. 365.) Thus, the Court concluded “‘it would be blinking reality not to recognize the extreme prejudice inherent’ in such statements....” (bid.) | C. Analysis The detective’s intemperate outburst on the stand, whichthetrial court characterized as “dramatic” and “emotional” (19 RT 3837), violated Mr. Sandoval’s right to due process andhis rightto a fair and reliable penalty determination. The detective’s characterization of Mr. Sandoval as a “‘son-of-a- bitch”is precisely the time of comment during a penalty phase proceeding that -323- posesa “risk [of] a verdict impermissibly based on passion, not deliberation.” (Paynev. Tennessee, supra, 501 U.S.at p. 836 (conc. opn. of Souter, J.); Stockton v. Virginia, supra, 852 F.2d at pp. 741-746.) It was inherently prejudicial because it was madeto a jury bya state official in uniform. (Parker v. Gladden, supra, 385 U.S.at pp. 363-365.) Furthermore, as discussed immediately below,the detective’s outburst was a precipitating factor in an episode ofjury misconduct that occurred in the jury room immediately following the outburst. Indeed, some of the jurors discussed the outburst in the jury room (19 RT 3859, 3869-3871, 3875-3879), and described the atmosphere in the jury room as “very tense” and “emotional.” (19 RT 3870.) Underthese circumstances,the trial court abusedits discretion by failing to grant a mistrial due to the violations of Mr. Sandoval’s basic constitutional rights occasioned by the detective’s emotional and dramatic outburst. XV. PRESUMPTIVELY PREJUDICIAL JUROR MISCONDUCT, INCLUDING POSSIBLE PRE-DELIBERATION JUROR BALLOTING, OCCURRED DURING THE PENALTY PHASE RETRIAL. Shortly after Detective Delfin’s outburst, Juror No. 11 reported to the court that he had heard twojurors discussing the case. (19 RT 3854.) On the following -324- day, the court conducted a hearing to inquire into the matter. The court asked Juror No. 11 to explain, out of the presence of the other jurors, what had happened. Juror No. 11 gave the following account: The jurors were on a break in the jury room after the court had called for a recess following Detective Delfin’s outburst. (19 RT 3858-3862.) Two male alternate jurors who wereseated on a couchin the jury room werediscussing the case. They discussed “the curse word” used bythe detective. Then, one ofthe alternate jurors stated: “I can’t believe this is happening. The consensusis probably seven-to-five still. I don’t know what these people are thinking.” (19 RT 3859.) According to Juror No. 11, “they were talking about who wasvoting for this and who wasvoting for that.” (19 RT 3862.) Juror No. 11 exited the courtroom after describing the foregoing events. Then,the trial judge commentedthat the reference to the consensus being “seven- to-five” indicated that “somebody”had read a newspaperarticle because anarticle had been recently published in which it was reported that the jury in the original penalty phase had hung seven-to-five. (19 RT 3863.) Thereafter, the court individually questioned each of the other jurors and alternate jurors. (19 RT 3865-3885, 3889-3895.) Juror No. 7 confirmed that two male alternate jurors had been “talking about the case” (19 RT 3868), and that they -325- had specifically discussed the fact that the detective was “very upset” (19 RT 3869) and had “broke[n] down.” (19 RT 3871.) Juror No. 12 heard the alternate jurors talking, but did not hear what they had said. (19 RT 3874.) Alternate Juror No. 3 acknowledged that he had asked a fellow juror what Detective Delfin had said, but denied otherwise discussing the case. (19 RT 3875-3879.) Alternate Juror No. 4, who had been on the couch with Alternate Juror No. 3 during the break, said there had been no discussionatall in the jury room during the break. (19 RT 3880-3881.) The remaining alternate juror'®° and the other seated jurors did not hear the conversation in question. (19 RT 3889-3895.) In the midst of the foregoing separate questioning of the jurors, the court had Juror No. 11 come back into the courtroom. Juror No. 11 indicated that he had been unawareofthe seven-to-five hung jury in the original penalty phasetrial. Thefirst time he had heard reference to a seven-to-five division was in the jury room. He assumedit was a reference to “who was gonnavote for this penalty and who wasgonnavote for that penalty.” (19 RT 3884-3885.) The defense moved for dismissal of the death penalty proceeding,or, in the alternative, a mistrial. As a further alternative, the defense requested the removal '%© Although fouralternate jurors were originally selected for theretrial (6 CT 1411), one of the alternates was excused prior to opening statements pursuant to a stipulation by the parties. (6 CT 1416.) -326- of Alternate Juror No. 3 and Alternate Juror No. 4. (19 RT 3885.) Initially, the trial court expressed wariness regarding the “seven-to-five” reference,stating: “[I]t’s a viable reference to what happenedbefore;thatis, the numbers are meaningful numbers,in the context that that was the split last time. They’re not just numbersoutofthe air.” (19 RT 3888.) Nevertheless, the court denied the defense motion for a mistrial, stating that the events in the jury room were not “a reflection of the impact” on the jury of Detective Delfin’s testimony. Further, the court determined there wasnobasis for a finding ofjury misconduct, noting that a majority of the jurors had not heard any discussion in the jury room, and characterizing the statements regarding the seven-to-five split as “statements which have nothing to do with the evidencein the case[,]” but rather as statements bearing on the “state of mind”of the alternate juror who uttered the statements. (19 RT 3896.) The court also denied the defense request to remove Alternate Juror No. 3 and Alternate Juror No. 4. (19 RT 3897.) A, Standard ofReview In determining whether jury misconduct occurred, appellate courts accept 9 666trial courts’ “‘credibility determinations and findings on questions ofhistorical fact if supported by substantial evidence.... Whether prejudice arose from juror misconduct, however, is a mixed question of law and fact subject to an appellate -327- n e 4 court’s independent determination.’” (People v. Majors (1998) 18 Cal.4th 385, 417; quoting People v. Nesler (1997) 16 Cal.4th 561, 582 (lead opn. of George, C.J.).) B. Applicable Legal Authorities Penal Code section 1122, subdivision (b) provides that jurors must not “converse among themselves, or with anyone else, on any subject connected with the trial, or ... form or express any opinion thereon until the causeis finally submitted to them.” “Violation of this duty is serious misconduct.” (/n re Hitchings (1993) 6 Cal.4th 97, 118; citing People v. Pierce (1979) 24 Cal.3d 199, 207.) “It is of course improperfor jurors to discuss a case prior to its submission to them....” (Smith v. Brown (1929) 102 Cal.App. 477, 484.) It is a generally acceptedprincipleoftrialadministration that jurors must not engagein discussionsofa case before they have heard both the evidence and the court’s legal instructions and have begun formally deliberating as a collective body. (United States v. Resko (3d Cir. 1993) 3 F.3d 684, 688.)'®! // 1 '*! “Appellate courts in several other jurisdictions have confronted the problem ofalleged juror misconductresting solely upon conversations among jurors outside the jury room, and have uniformly adheredto the principle that such conduct is improper.” (State v. Drake (1976) 31 N.C. App. 187, 191-192 [229 S.E.2d 51, 54] [collecting cases].) -328- cee [A] judge may reasonably concludethat a juror who has violated instructionsto refrain from discussing the case ... cannot be counted on to follow instructions in the future.’” (People v. Ledesma (2006) 39 Cal.4th 641, 743; quoting People v. Daniels (1991) 52 Cal.3d 815, 865.) Such misconduct“raises a presumption ofprejudice.” (Jn re Hitchings, supra, 6 Cal.4th at p. 118.) In jury trials spanning multiple days, trial courts are required to daily admonishjurors of their obligations not to discuss the case or form any opinions concerning the case prior to the submission of the case to them. (People v. Moore (1971) 15 Cal.App.3d 851; see also People v. Burton (1961) 55 Cal.2d 328, 354.) “It is of course improperforjurors to discuss a case prior to its submission to them....” (City ofPleasantHill v. First Baptist Church (1969) | Cal.App.3d 384, 429, internal quotation marks omitted.) “Insofar as any juror formed and expressed an opinion prior to the submission of the case, he violated the prescribed protocol for the performanceofhis duties.” (/bid.) Prejudicial juror misconduct occurred in People v. Brown (1976) 61 Cal.App.3d 476, when,in a discussion prior to commencementofdeliberations, one juror expressed to anotherjuror the opinion that the defendant was guilty. (Jd. at pp. 479-482.) The misconduct violated the defendant’s “constitutional right to a fair trial by 12 impartial jurors....” (/d. at p. 482.) -329- Numerouscourts have held that constitutional error occurs whenjurors in criminal cases engage in pre-deliberation discussions concerning the evidence, or whena trial court instruct jurors that they may discussthe case prior to the commencementofdeliberations. (Winebrennerv. United States (8" Cir. 1945) 147 F.2d 322, 326-329 [the rights “under the Fifth and Sixth Amendmentsto the Constitution to a fair trial [and] to an impartial jury’], cert. den. (1945) 325 U.S. 863; State v. McLeskey (2003) 138 Idaho 691, 693-694 [69 P.3d 111, 113-114] [“the right of the defendant to a fair trial”]; State v. Miller (1994) 178 Ariz. 555, 557 [875 P.2d 788, 790]; Commonwealth v. Kerpan (1985) 508 Pa. 418, 422-424 [498 A.2d 829, 831-832] [“constitutional right to a fair and impartial jury”; People v. Hunter (1963) 370 Mich. 262, 269-273 [121 N.W2d 442, 446-449].) Premature jury deliberations and/or discussions concerning the case are forbidden for a numberofreasons: First, since the prosecution presents its evidence first, any premature discussionsare likely to occur before the defendant has a chance to presentall of his or her evidence,anditis likely that anyinitial opinions formedbyjurors, which will likely influence other jurors, will be unfavorable to the defendantfor this reason. (United States v. Resko, supra, 3 F.3d at p. 689.) Second, once a juror expresses his or her views in the presence of otherjurors, he or sheis likely to continueto adhere to that opinion and pay greater attention to evidence presented that comports with -330- that opinion. Consequently, the mere act of openly expressing his or her views may tend to cause the juror to approach the case with less than a fully open mind andto adhereto the publicly expressed viewpoint. (Ibid.) Third, the jury system is meant to involve decision making as a collective, deliberative process and premature discussions among individual jurors may thwart that goal. (Ibid.) Fourth, because the court provides the jury with legal instructions only after all the evidence has been presented, jurors who engage in prematuredeliberations do so without the benefit of the court’s instructions on the reasonable doubt standard. (Ibid.) Fifth, if premature deliberations occur before the defendant has had an opportunity to present all of his or her evidence... and jurors form premature conclusions aboutthe case, the burden of proof will have been, in effect, shifted from the government to the defendant, who has the burden ofchanging by evidencethe opinion thus formed. ({bid., internal quotation marks omitted.) Finally, requiring the jury to refrain from prematurely discussing the case with fellow jurors in a criminal case helps protect a defendant’s Sixth Amendmentrightto a fair trial as well as his or her due process right to place the burden on the governmentto proveits case beyond a reasonable doubt. (/d. at pp. 689-690.) HT] -331- “Almost without exception, where the issue has been properly raised, every court has held that an instruction permitting the jurors to discuss the case beforeits submission to them constitutes reversible error.” (State v. Washington (1980) 182 Conn. 419, 426-427 [438 A.2d 1144, 1148] [collecting cases].) C. Analysis Althoughthetrial court in this case regularly instructed the jury during the penalty phaseretrial concerning its duty not to discuss the caseprior to deliberations (14 RT 2794; 17 RT 3427, 3534; 18 RT 3709), certain members of the jury plainly violated this duty. Prior to submission of the case to them,certain jurors not only discussed Detective Delfin’s emotional testimony (19 RT 3859, 3868-3871, 3875-3879), but also discussed the numerical division amongstjurors in the case. (19 RT 3859, 3862, 3884-3885.) It is unclear whether the referenced numerical division pertained to the jury in the original penalty phasetrial or the jury in the retrial. Thetrial court believed it was the former (19 RT 3888), and Juror No. 11 believed it was the latter. (19 RT 3884-3885.) In either event, certain jurors and alternate jurors committed misconductby violating the court’s instruction to refrain from discussing the case until it was submitted to them. The misconductviolated Mr. Sandoval’s Sixth, Eighth, and Fourteenth Amendment rights to a fair penalty trial and an impartial jury. (United States v. Resko, supra, 3 -332- F.3d at pp. 689-690.) The misconduct was presumptively prejudicial. (/n re Hitchings, supra, 6 Cal.4th at p. 118.) No basis exists for a finding that the abridgment of Mr. Sandoval’s constitutional rights occasioned by the misconduct was harmless beyond a reasonable doubt. Accordingly, the verdict rendered in the penalty phaseretrial cannot stand. In light of the facts that certain jurors violated the court’s instructions by discussing Detective Delfin’s outburst, and, more problematically, by engaging in discussions and/or pre-deliberations that culminated in the “seven-to-five” reference,the trial court should have granted the defense request for a mistrial. The court’s inquiries of the individualjurors did not lead to a definitive discovery of what exactly the seven-to-five reference pertained to. However, given Juror No. I 1’s stated belief that it pertained to “who was gonnavote for this penalty and who wasgonnavotefor that penalty” (19 RT 3884-3885), the jurors in this case may have conducted pre-deliberation ballots. If that is the case, Mr. Sandoval’s penalty phaseretrial was irreparably tainted. Because thetrial court’s juror investigation did not rule out the possibility of such irreparable taint, the court should have granted a mistrial. At this post-verdict stage, a new penalty phase trial must be granted becausethereis no basis upon whichto rebut the prejudice presumptively occasioned by the juror misconduct. ~-333- XVI. BY EXPOSING THE JURY TO EVIDENCE OF UNCHARGED SHOOTINGS MR. SANDOVAL HAD MENTIONEDIN HIS CONFESSION, THE PROSECUTOR VIOLATED THE TRIAL COURT’S ORDER EXCLUDING THAT EVIDENCE AND RENDERED MR. SANDOVAL’S PENALTY PHASE RETRIAL FUNDAMENTALLY UNFAIR. During the penalty phaseretrial, the prosecutor furnished the jury with transcripts of Mr. Sandoval’s confession. The transcripts supplied by the prosecutor included a written reproduction of an admission by Mr. Sandovalthat he had shot other people with the same weapon with which hehad shot andkilled Detective Black. (21 RT 4288-4289; 2 CT 468.) Earlier in the proceedings, the trial court had madea ruling excluding evidenceofthat portion of Mr. Sandoval’s recorded confession. (9 RT 1844-1846.) After the parties noticed the presence in the transcripts of the inadmissible remark,the trial court ordered thebailiff to collect the transcripts and admonishedthe jury to disregard Mr. Sandoval’s admission. Defense counsel did not request the trial court to take any other action. (21 RT 4288-4289.) Mr. Sandoval wasseverely prejudiced by the presentation to the jury of his memorialized admission that he had shot people other than Detective Black with the CAR-15. Once the jurors saw that evidence, the proverbial bell had been rung, -334- and it could not be unrung. Thus, notwithstandingthe trial court’s admonition, Mr. Sandovalis entitled to an order vacating his death sentence, based upon the jury’s exposureto this quintessentially prejudicial evidence. A. Legal Principles and Reviewing Standards Concerning Prosecutorial Misconduct and Ineffective Assistance ofCounsel Whetherrelief is warranted due to prosecutorial misconduct (the prosecutor’s presentation of the excluded evidenceto the jury) or ineffective assistance of counsel(the failure of counsel to request a mistrial), Mr. Sandovalis entitled to relief due to the jury’s exposureto the disastrously damaging evidence. L. Prosecutorial Misconduct “Tt is misconduct for a prosecutor to violate a court ruling byeliciting or attemptingto elicit inadmissible evidence in violation of a court order.” (People v. Crew (2003) 31 Cal.4th 822, 839, cert. den. sub nom. Crew v. California (2004) 541 U.S. 991.) “The focus of the inquiry is on the effect of the prosecutor’s action on the defendant, not on the intent or bad faith of the prosecutor.” (People v. Hamilton (2009) 45 Cal.4th 863, 920.) 2. Ineffective Assistance ofCounsel In assessing whethera trial attorney has performed ineffectively, reviewing courts “consider whether counsel’s representation fell below an objective standard -335- of reasonableness underprevailing professional norms....” (Stricklandv. Washington (1984) 466 U.S. 668, 694.) Reviewing courts presume counsel performed in accordance with the governing standards of professional competence, unless the defendantis able to demonstrate otherwise. (dn re Andrews(2002) 28 Cal.4th 1234, 1253.) This court independently reviews whether a defendant has been prejudiced bytrial counsel’s ineffectiveness. (People v. Ault (2004) 33 Cal.4th 1250, 1264, fn. 8.) To show prejudice, the defendant“need not show that it is more likely than not that a different result would have occurred hadtrial counsel provided effective representation.” (/n re Andrews, supra, 28 Cal.4th at p. 1279 (dis. opn. of Kennard, J.), italics in the original.) Rather, the defendant need only show “reasonable probability,”i.e., a probability “sufficient to undermine confidencein the outcome.” (Strickland, supra, 466 U.S.at p. 694.) B. Procedural and Factual Background On August 14, 2002, Mr. Sandoval’strial counsel filed a multi-faceted pre- trial motion, which included a request to redact certain portions ofMr. Sandoval’s recorded statement. (1 CT 227-228.) Prior to any ruling from the court, the prosecutorprepared a redacted transcript of the interview. Then,as a result of a ruling made bythe court on October 15, 2002, during the course of guilt phase -336- proceedings, the prosecutor prepareda transcript with further redactions, including redaction of the statement about Mr. Sandoval shooting other people with the murder weapon. (9 RT 1844-1846.) The resultant “corrected and redacted” transcript was presented during the guilt phase. (10 RT 1967-1968; 2 CT 268- 328.)'” The first page ofthis version ofthe transcript bears the handwritten notation “Corrected and Redacted Guilt Phase Transcript”. (2 CT 268.) Anotherversion of the transcript was presented to the jury during the penalty phaseretrial After it was presented to the jury, and while the audiotape of Mr. Sandoval’s recorded statement was being played for the jury,'®trial counsel for Mr. Sandoval requested a sidebar conference. Counsel noted there wastext in the transcript — regarding Mr. Sandoval admitting he had shot people in unrelated cases —- that should have been redacted. The prosecutor agreed, stating he had inadvertently provided the jury a version of the transcript from which that text was not redacted. Counsel for Mr. Sandoval notedthe text in question had been redacted from the transcript presented to the jury during the guilt phase of the ‘2 This version of the transcript was People’s Exhibit number 73-A in the guilt phase ofthe original trial. The tape recording itself was People’s Exhibit number 73. (10 RT 1967-1968.) 'S The tape recording was People’s Exhibit 76 in the retrial. (21 RT 4286- 4287.) -337- original trial. (21 RT 4287-4289.) As noted above,after the sidebar conference, the trial court instructed the jury that there was“absolutely no evidence the defendant ever shot anybodyelse with the CAR-15,” and admonished the jury to “disregard the statements to that effect.” (21 RT 4289.) C. The Prejudicial Nature ofthe Evidence that Mr. Sandoval Had Admitted to Shooting Other People Early in the guilt phase ofMr. Sandoval’strial, the trial court expressly . recognized the “highly prejudicial” nature of the evidence in question. (2 RT 249- 250.) “Evidence ofuncharged crimesis inherently prejudicial....” (Peoplev. Carpenter, supra, 15 Cal.4th at p. 380; State v. Henderson (Mo. App. 2003) 105 S.W.3d 491, 497-498 [reversing due to introduction of “highly prejudicial evidenceof [an] uncharged shooting’’].) “A confessionis like no other evidence.” (Arizona v. Fulminante (1991) 499 US. 279, 296.) A defendant’s confession is “probably the most probative and damaging evidence that can be admitted against him.” (/bid., internal quotation marks omitted.) Whena jury is exposed to inadmissible evidencelike the damning admission made by Mr. Sandoval about shooting other people with the murder -338- weapon,the jury cannot be expected to follow an admonition from thetrial court to disregard such blockbuster evidence. “The naive assumption that prejudicial effects can be overcomebyinstructionsto the jury ... [is an assumption]all practicing lawyers know to be unmitigated fiction.” (Bruton v. United States (1968) 391 U.S. 123, 129; quoting Krulewitch v. United States, supra, 336 U.S. at p. 453 (conc. opn. of Jackson,J.).) Nevertheless, reviewing courts “normally presumea jury will follow an instruction to disregard inadmissible evidence inadvertently presentedto it, unless there is an overwhelming probability that the jury will be unable to follow the court’s instructions[citation], and a strong likelihood that the effect of the evidence would be devastating to the defendant.” (Greer v. Miller (1987) 483 U.S. 756, 767.) The “presumption fades” when a court’s cautionary instruction calls upon the jury “to perform humanly impossible feats of mental dexterity.” (United States v. McDermott (2d Cir. 2001) 245 F.3d 133, 139-140; United States v. Daniels (D.C. Cir. 1985) 770 F.2d 1111, 1118 [“To tell a jury to ignore the defendant’s prior convictions in determining whetherhe or she committed the offense beingtried is to ask human beings to act with a measure of dispassion and exactitude well beyond mortal capabilities.”]; United States v. Johnson (5" Cir. 1977) 558 F.2d 1225, 1230 [“Thoughthetrial court instructed the jury not to consider the remark, the testimony wasso prejudicial that a simple -339- instruction cannotcureit.”’].) D. Analysis Defense counsel fought hard to secure a ruling from thetrial court preventing the jury from receiving evidence of Mr. Sandoval’s statement that he had shot other people with the murder weapon. They wonthe battle when the court ruled the evidence inadmissible,'™ but lost the war when the evidence made its way before the jury anyway. Thefailure of defense counsel to seek a mistrial when the devastating evidenceslipped throughthe cracks is incomprehensible. The facts that defense counsel moved to exclude the evidence andthat the trial court excluded the evidence demonstrates Mr. Sandoval wasentitled to have the evidence kept from the jury. The failure of defense counsel to enforce the ruling and to seek appropriate reliefwhen the ruling wasviolated falls below any “objective standard of reasonableness underprevailing professional norms....” (Strickland v. Washington, supra, 466 U.S.at p. 694.) Had defense counsel moved for a mistrial whenthe evidence waspresented to the jury, the trial court would have been '* As noted, thetrial court granted the defense motion during the guilt phase to exclude the evidence. (9 RT 1844-1846.) Then, at the outset of the penalty phaseretrial, the court granted a defense requestto treat all rulings from the original trial as remaining in full force and effect in the retrial. (14 RT 2739- 2740.) -340- obliged to grant the motion. Hence, the defense attorneys’ omission to request a mistrial was prejudicial to Mr. Sandoval. Furthermore, taking the prosecutorat his word, his negligent misconduct resulted in the inadvertent presentation of the inadmissible evidence to the jury. (21 RT 4288.) Misconduct occurred because the evidence waspresented in violation of the trial court’s order excluding the evidence. (People v. Crew, supra, 31 Cal.4th at p. 839.) Whether the prosecutor’s presentation of the evidence was intentional or accidental is of no moment, as the focus “is on the effect of the prosecutor’s action on the defendant, not on the intent or bad faith of the prosecutor.” (People v. Hamilton, supra, 45 Cal.4th at p. 920.) Thus, because of the “highly prejudicial” nature of the evidence, whichthe trial court had expressly recognized early in the case (2 RT 249-250), Mr. Sandovalis entitled to relief based upon the misconductthat resulted in the jury’s exposure to the evidence. The inflammatory nature of the evidence resulted in a violation of Mr. Sandoval’s right to due process and to a fundamentally fair and reliable penalty determination. No jurors could have been expected to heed thetrial court’s instruction to disregard the evidence, presented to them in black and white,that Mr. Sandoval had admitted shooting other people with the murder weapon. (Greer v. Miller, supra, 483 U.S.at p. 767.) -341- XVIL. THE PROSECUTOR RENDERED MR. SANDOVAL’S PENALTY PHASETRIAL UNFAIR BY COMMITTING MISCONDUCT DURING ARGUMENTTO THEJURY. During closing argumentin the penalty phaseretrial, the prosecutor committed misconduct. First, the prosecutor told jurors that Mr. Sandoval had been endeavoring to deceive them duringtheretrial. (23 RT 4605-4606, 4618, 4621.) The prosecutor madethis contention despite the fact that Mr. Sandoval did not testify. Second, the prosecutor falsely and inappropriately told the jurors that the defense attorneys were going to make certain purportedly standard and ridiculous arguments in their effort to convince the jury not to return a death penalty verdict. (23 RT 4608-4611.) These were specious, unfair arguments. By advancing these arguments, the prosecutor committed prejudicial misconduct and violated Mr. Sandoval’s right to a fundamentally fair and reliable penalty determination. A. Standard ofReview Under California law, a prosecutor commits reversible misconduct if he or she makesuse of deceptive or reprehensible methods when attempting to persuadeeither the trial court or the jury, andit is reasonably probable that without such misconduct, an outcome more favorable to the defendant would haveresulted.... Under the federal Constitution, conduct by a prosecutorthat doesnot result in the denial of the defendant’s specific constitutional rights — such as comment -342- upon the defendant’s invocation ofthe right to remain silent — butis otherwise worthy ofcondemnation,is not a constitutional violation unless the challenged action so infected the trial with unfairnessas to makethe resulting conviction a denial of due process. (People v. Dykes (2009) 46 Cal.4th 731, 760, internal quotation marks omitted, cert. den. sub nom. Dykes v. California (2010) 130 S.Ct. 1088.) B. Factual Background 1. Mr. Sandoval’s Lying Hair Asnoted in the Statement of Facts, at page 63, ante, the prosecutor argued to the jury in the penalty phaseretrial that Mr. Sandovaltried to “deceive” the jurors by the mannerin which he hadhis hair cut throughoutthe retrial. (23 RT 4605-4606, 4618, 4621.) In this regard, the prosecutor presented the following argument over objections from defense counsel: THE PROSECUTOR: [Mr. Sandoval] is the person that was on Lime [Avenue]. That’s the person that went to McDonald’s; not the guy that started growinghis hair out two monthsago to deceive you, because that’s whyhedid it. [{]] He doesn’t have his hair this way,andit won’t be this way for 15 minutesafter your verdict. DEFENSE COUNSEL: I object. That’s improper argument. THE COURT: Overruled. THE PROSECUTOR: He began growinghis hair out to deceive -343- you. He began doing it when he knew this case was comingto trial. That’s why he did it. DEFENSE COUNSEL: There’s no evidence of this, Your Honor. THE COURT: Counsel may argue inferences from the evidence. Overruled. (23 RT 4605-4606.) Defense counsel was correct. No evidence supported the prosecutor’s argument. No evidence was adduced that Mr. Sandovalhadhis hair cut at any particular time for any particular purpose. Mr. Sandoval’s sister hadtestified that Mr. Sandoval’s head had been shaved approximately two monthsbefore the retrial (22 RT 4501), but she had also noted that he had had different hair styles over the course of various time periods. (22 RT 4512-4513.) 2. Phantom Defense Arguments The prosecutorsaid to the jury: “I wantto tell you about some of the arguments you’re likely to hear from defense counsel. As these are the things that they argue.” (23 RT 4608.) Thereupon,the prosecutor proceededto tell the jury about three arguments they would purportedly hear from defense counsel, and he purported to preemptively debunk each of the arguments. (23 RT 4608-4611.) First, he said defense attorneys make “a triangle argument.” (23 RT 4608.) -344- Accordingto the prosecutor, defense attorneys use a triangle to “represent[] the world at large” and to suggest that only an “infinitesimal portion” of people — the worst of the worst, symbolized by the tip of the triangle — “should get the death penalty.” (23 RT 4608-4609.) Second, the prosecutorsaid, “[t]hey will also make a 10-20-life argument.” (23 RT 4609.) The prosecutor asserted defense counsel would unconvincingly argue that if the jury imposed a sentence oflife without the possibility of parole, Mr. Sandoval would be in prison “ten years from now[,]” [twenty] years from now[,]” and “thirty years from now[,]” and that the jurors could “be safe in the knowledge that he’s put away, incarcerated.” (23 RT 4609- 4610.) Third, the prosecutor said defense attorneys “also make arguments [about] how we’re merciful people.” (23 RT 4610.) He claimed defense counsel would “ridiculous[ly]” point out that if Mr. Sandoval had a heart attack “right now[,]” efforts would be madeto save him “because we’re a caring, compassionate people.” (23 RT 4610-4611.) During the foregoing line of argument, defense counsel interposed an objection, stating, “[T]here’s no evidence of this, Your Honor.” Thetrial court overruled the objection. (23 RT 4610.) In the prosecutor’s argumentduringthe original penalty phase, the prosecutor made the very same remarks,telling the jury in that proceeding defense -345- counsel would make the same three arguments summarized above. (13 RT 2606- 2609.) Thetrial court overruled two defense objections during that phase of the argument. (13 RT 2606, 2608.) And,after the conclusion of that argument, the trial court overruled defense counsel’s further objections that the prosecutor’sline of argument had violated Mr. Sandoval’s due process rights by 1) preemptively trivializing defense counsel’s argument, 2) making “it appear that each caseis the same”rather than individualized, and 3) “tak[ing] away from the jurors’ sense of responsibility in this particular case....” (13 RT 2637-2638.) At the outset of the penalty phaseretrial, the parties stipulated, with thetrial court’s assent, that objections previously made and overruled were to be deemed madeandoverruled in the retrial. (17 RT 3377-3378.) In their argument to the jury in the original penalty phase trial, while defense counsel naturally urged the jury to imposea sentenceoflife without parole (13 RT 2641-2642, 2644-2645, 2647, 2658-2659, 2662, 2672, 2674), and supported that plea by noting a sentence oflife without parole would result in Mr. Sandoval never getting out of prison (13 RT 2641-2642, 2647), and stressing that the jury had the right to extend mercy by imposing such a sentence (13 RT 2644, 2658-2659, 2661), defense counsel did not make anyofthe three specific arguments the prosecutor told the jury they would make. Similarly, defense -346- counsel did not make those argumentsin the penalty phaseretrial. C. Legal Principles Concerning Prosecutorial Misconduct During Argumentto the Jury 1. Preserving a Claim ofMisconduct Asa generalrule, in order to preserve a claim of prosecutorial misconduct for appellate review, the defendant must promptly object and request a curative instruction. (People v. Monterroso (2004) 34 Cal.4th 743, 785; People v. Samayoa (1997) 15 Cal.4th 795, 841.) However, “[a] defendant will be excused from the necessity of either a timely objection and/or request for admonition if either would have beenfutile.” (People v. Hill (1998) 17 Cal.4th 800, 820; citing People v. Arias (1996) 13 Cal.4th 92, 159; People v. Noguera (1992) 4 Cal.4th 599, 638.) Furthermore,“the absence of a request for a curative admonition does not forfeit the issue for appealif ‘the court immediately overrules an objection to alleged prosecutorial misconduct [and as a consequence] the defendant has no opportunity to make such a request.’”(Hill, supra, at pp. 820-821, brackets in the original; quoting People v. Green, supra, 27 Cal.3dat p. 35, fn. 19.) 2. Arguing Purported Facts Outside the Record A prosecutor“is not privileged to testify in the guise of a closing argument. (United States v. Peak (6" Cir. 1974) 498 F.2d 1337, 1339.) -347- “Statements of supposed facts not in evidenceare a highly prejudicial form of misconduct, and a frequent basis for reversal.” (People v. Hill, supra, 17 Cal.4th at p. 828, internal quotation marks andellipsis omitted.) “[S]uch statements tend to make the prosecutor his own witness—offering unsworn testimony not subjectto cross- examination. It has been recognized that such testimony, although worthless as a matter of law, can be ‘dynamite’ to the jury because of the special regard the jury has for the prosecutor, thereby effectively circumventing the rules of evidence.” ([bid., internal quotation marks and brackets omitted.)!*° An attorney’s obligation to confine remarks in argument to matters established by evidencein the record derives from basic ethics and fundamental fairness, “because the facts determine the law (‘exfactojus oritur’). (Sevilla, Combating the Fact Smuggler (1998) 22 Champion 22.) A prosecutor may not make “improper suggestions, insinuations or assertions of personal knowledge.” (United States v. Manriquez-Arbizo (10" Cir. 1987) 833 F.2d 244, 247 [“The prosecutor’s remark, referring to what defense counsel must have been thinking, placed an improperinference into the minds of the jurors and wasclearly inappropriate.”’].) /// 'S Accord, People v. Cash, supra, 28 Cal.4th at p. 732; People v. Johnson (1981) 121 Cal.App.3d 94, 103. -348- 3. Suggesting that a Non-Testifying Defendant Was Somehow Lying to the Jury A “prosecutoris entitled to comment on the credibility of witnesses based on the evidence adducedat trial.” (People v. Thomas (1992) 2 Cal.4th 489, 529.) “The prosecution may properly refer to a defendantasa ‘liar’ if it is a ‘reasonable inference based on the evidence.”” (People v. Wilson (2005) 36 Cal.4th 309, 338; quoting People v. Coddington, supra, 23 Cal.4th at p. 613.) A defendant who takes the stand “put[s] his own credibility in issue....” (People v. Gutierrez (2002) 28 Cal.4th 1083, 1139.) It is misconduct for a prosecutor to refer to a defendant as a liar when the defendanthas nottestified and when the defendant’s credibility is not otherwise at issue. (Floyd v. Meachum (2d Cir. 1990) 907 F.2d 347, 354.) Although a prosecutor may appropriately argue that a testifying defendant haslied, a prosecutor maynot argue that a non-testifying defendantis a liar. (/d., at pp. 354- 355.) Such argumentis tantamount to contending that a defendant’s not guilty plea is a lie, which is also misconduct. (Lopez v. State (Tex. Crim. App. 1973) 500 S.W.2d 844, 845; Perkins v. State (Tex. App. 1981) 630 S.W.2d 298, 302- 303.) /// -349- D. Analysis The prosecutorin this case is not clairvoyant. He had no idea whether Mr. Sandoval was going to shavehis head following the penalty phaseretrial. Furthermore, the prosecutor had adduced no evidence that Mr. Sandoval’s hair had been cut in a particular way at any time for any particular reason. Thus, when the prosecutor suggested to the jury that Mr. Sandoval had grownhis hair out for the retrial in order to “deceive” the jury (23 RT 4605-4606, 4618, 4621), the prosecutor committed misconduct by stating supposed facts not in evidence and baselessly accusing a non-testifying defendant of trying to deceive the jury. The prosecutor also committed misconductby “forecasting” and preemptively debunking certain aspects of arguments Mr. Sandoval’strial attorneys would purportedly makein an effort to convince the jury to spare Mr. Sandoval’s life. (23 RT 4608-4611.) This misconduct wasparticularly egregious in light of the fact that the defense attorneys had not made any ofthe prosecutor’s “forecasted” arguments in Mr. Sandoval’s original penalty phasetrial. Necessarily, the prosecutor’s “forecast” was based on supposed facts outside the record — supposed facts with which the experienced prosecutor was apparently familiar. The argument/forecast was pernicious becauseit suggested to the jury that defense attorneys like those representing Mr. Sandoval learn standardized -350- argumenttechniques at seminars and present them to juries in all mannerofcases. It suggested that the defense attorneys would try to appeal to jurors by resort to a tried and true sales pitch rather than a straightforward analysis based on the relevant facts. The prosecutor’s misconduct rendered Mr. Sandoval’s penalty phaseretrial fundamentally unfair. Unconstrained by evidence properly adduced, the prosecutor portrayed Mr. Sandoval and his counsel as a team out to deceive the jury by meansof false appearance and insincere ploys. Independently, and together with the other prejudicial errors in the penalty phaseretrial, the prosecutor’s misconduct warrantsrelief. XVIII. THE PROSECUTOR’S USE DURING CLOSING ARGUMENT OF AN EMOTIONAL POWERPOINT PRESENTATION OF VICTIM- IMPACT EVIDENCE BROUGHT NEARLY HALF OF THE MEMBERSOF THE JURY TO TEARS AND VIOLATED MR. SANDOVAL’S DUE PROCESS AND EIGHTH AMENDMENT RIGHTS TO FUNDAMENTALFAIRNESSIN HIS PENALTY PHASE RETRIAL. Over repeated objections,the trial court allowed the prosecution to present an emotional audio-visual montageto the jury during the prosecution’s argument /// /// -351- in the penalty phaseretrial. (23 RT 4587-4588, 4637-4639.)'® The presentation exceeded the boundsofpermissible 1) victim-impact evidence, and 2) aggravating evidence. Becauseofthe eulogy-like and otherwise inflammatory nature of the presentation, which played on the passions ofthe jurors (23 RT 4640), the presentation rendered the penalty phaseretrial unfair, in derogation of Mr. Sandoval’s Eighth and Fourteenth Amendmentrights. In addition to objecting to the audio-visual presentation during trial, Mr. Sandovalraised this issue as a groundforrelief in his new trial motion. (6 CT 1506.) A. Standard ofReview Reviewing courts evaluate the presentation of victim-impact evidence to assess whetherit rendered the trial fundamentally unfair. (Payne v. Tennessee, supra, 501 U.S. 808, 825.) B. Factual Background In the prosecution’s argumentto the jury in both the original penalty phase trial and the penalty phasere-trial, the prosecution presented an audio-visual montage to the jury. (13 RT 2635-2637, 23 RT 4637-4639.) In both proceedings, ‘86 During the course of record correction proceedings, the trial prosecutor assembled portions of the audio and visual componentsofthe presentation on a single disk, which the trial court madepart of the record. (1/28/09 RT 2-3.) -352- the trial court allowed the prosecution to do so over defense objection. (13 RT 2635-2636, 23 RT 4587-4588, 4637-4639.) The presentation was a PowerPoint® exhibition displayingstill photos of Daryle Black at various periodsin his life — from infancy to adulthood. It included photos of Detective Black after he had been fatally shot, followed by photosofhis flag-draped coffin at a memorial service in Long Beach. The dramatic and emotional photos of the memorial service revealed an outpouring of support from the thousandsof attendees. It also displayedstill photos of members of Detective Black’s family and photos of Rick Delfin and his family. Then,it displayed photos of Mr. Sandoval in various gang- related settings, with a change in the tone of the music. (13 RT 2635-2637, 23 RT 4587, 4637, 4697, 4735, 4737-4740.) The PowerPoint® presentation ofthestill photos was accompanied bytwotracks from the album Freedom,bytheartist Michael W. Smith. (23 RT 4737-4738; 2 Supp. III CT 365-367, 398-404.) According to the prosecutor, the music was selected by the Black family. (23 RT 4637.) During the presentation in the penalty phasere-trial, five jurors were openly crying. (23 RT 4640.) The defense objections to the presentation of this audio-visual montage consisted not only of objections to the presentation altogether, but also to the court allowing a musical accompanimentto the video presentation. (13 RT 2636, 23 RT -353- 4637.)'®’ Further, the defense objected in the penalty phasere-trial when the prosecutor informed the jury that the music had been selected by members of the Black family (23 RT 4637), and when Daryle Black’s brother rendered mechanical assistance to the prosecutor as the presentation was proceeding before the jury. (23 RT 4638-4639.) C. Legal Principles “(T]he punishmentphaseofa criminaltrial is not a memorial service for the victim.” (Salazar v. State (Tex.Crim.App. 2002) 90 S.W.3d 330, 335-336.) “[A]|ny decision to impose the death sentence [must] be, and appearto be, based on reason rather than caprice or emotion.” (Gardnerv. Florida, supra, 430 U.S.at p. 358 (plur. opn. of Stevens,J.).) Accordingly, the presentation of victim impact evidence “that is so unduly prejudicial that it renders the trial fundamentally unfair” violates the Due Process Clause of the Fourteenth Amendment. (Paynev. Tennessee, supra, 501 U.S. at p. 825.) Such prejudice and unfairnessis occasionedby victim-impact evidence and/or “jury argumentpredicated onit” whichis “so inflammatory as to risk a verdict impermissibly based on passion, not deliberation.” (/d., at p. 836 (conc. opn. of Souter, J.).) However, a prosecutor '8’ Defense counsel submitted: “Perhaps the People could not have the music.” The prosecutor rejoined: “If I were capable of playing a guitar, I’d be entitled to sing my closing argument.” (13 RT 2636.) -354- may present to the jury “‘a quick glimpse ofthe life’” the defendant took. (dd. at p. 822 (opn. of the Court), italics added; quoting Mills v. Maryland (1988) 486 U.S. 367, 397 (dis. opn. of Rehnquist, C.J.).) Courts must exercise great caution in permitting the prosecution to present victim-impact evidencein the form of a lengthy videotapedorfilmed tribute to the victim. Particularly if the presentation lasts beyond a few moments, or emphasizesthe childhoodofan adult victim, or is accompaniedbystirring music, the medium itselfmay assist in creating an emotional impact upon the jury that goes beyond what the jury might experience by viewingstill photographsofthe victim orlistening to the victim’s bereaved parents.... In order to combatthis strong possibility, courts must strictly analyze evidenceofthis type and,if such evidenceis admitted, courts must monitor the jurors’ reactions to ensure that the proceedings do not becomeinjected with a legally impermissible level of emotion. (People v. Prince (2007) 40 Cal.4th 1179, 1289, cert. denied sub nom. Prince v. California (2008) 128 S.Ct. 887.) Whenvictim impact evidence is enhanced with music, photographs, or video footage, the risk of unfair prejudice quickly becomes overwhelming.” (Kelly v. California (2008) 129 S.Ct. 564, 567 (opn. of Stevens,J., respecting denial of cert.); id. at p. 568 (opn. of Breyer, J., dis. from denial ofcert.) [“the due process problem of disproportionately powerful emotionis a serious one”]; People v. Kelly (2007) 42 Cal.4th 763, 805-806 (conc. & dis. opn. of Moreno,J.) [a victim-impact audio-visual presentation “akin to a eulogy” or “memorial service” -355- is inappropriate], cert. den sub nom. Kelly v. California, supra, 129 S.Ct. 564.) “(Several courts have allowed some videoclips of various kinds to be admitted during a sentencing phase presentationof evidence.” (United States v. Sampson, supra, 335 F.Supp.2d 166, 191.) “In each of these cases, the admitted video wasbrief and found to be probative of some aspect of the victim’s life.” (Ibid.) In a case involving the murderofan adult victim, the probative value of victim-impact evidence consisting of “