PEOPLE v. SANDOVAL (RAMON JR.)

Appellant’s Reply Brief

Cal.December 21, 2012

‘SUPREME COURT COPY IN THE SUPREMECOURT OF THE STATE OF CALIFORNIA THE PEOPLE OF THE STATE OF CALIFORNIA, ) ) ) Plaintiff/Respondent, ) ) V. sO ) ) RAMON SANDOVAL,JR., ) ) ) ) Defendant/Appellant. Case No. §115872 CAPITAL CASE SUPREME COURT FILED DEC 21 2012 Frank A. McGuire Clerk Deputy Los Angeles County Superior Court, Case No. BA240074 Hon. Joan Comparet-Cassani, Presiding APPELLANT’S REPLY 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 DEATH PENALTY IN THE SUPREME COURTOF THE STATE OF CALIFORNIA THE PEOPLE OF THE STATE OF CALIFORNIA, Plaintiff/Respondent, RAMON SANDOVAL,JR., ) ) ) ) ) Vv. ) ) ) ) Defendant/Appellant. ) ) Case No. $115872 CAPITAL CASE Los Angeles County Superior Court, Case No. BA240074 Hon. Joan Comparet-Cassani, Presiding APPELLANT’S REPLY 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 INTRODUCTION .... 0.00... ccc cee ee ee eee eens enn eeenes 1 A. Fourth Amendment Issue ............. 0... cc ee eee eee eee eees 2 B. Guilt-Phase Issues Pertaining to Mr. Sandoval’s Mental State at the Time of the Shooting ...................... 3 C. Insufficiency and Invalid Theory of Transferred Premeditation .... 0... eee cece tet eee teen eee eees 4 D. Witherspoon-Witt Error ...... 0.0.0.cttc eens 5 E. Issues in the Penalty-Phase Retrial ....................-20005. 6 DISCUSSION I. THE TRIAL COURT ERRONEOUSLY FAILED TO HOLD A FRANKS EVIDENTIARY HEARING AFTER MR. SANDOVAL MADE A SUBSTANTIAL, PRELIMINARY SHOWING THAT THE POLICE SUBMITTED A RECKLESSLY MISLEADING SEARCH WARRANTAFFIDAVIT 1.0.0.0... 0c ccc cee eee 7 A. The Showing of Probable Causein the Search Warrant Affidavit 2.0... 0.ccccece eect eee ees 9 B. The Substantial, Preliminary Showing of Mr. Sandoval’s Entitlement to a Franks Evidentiary Hearing ............. 0 cece cnet eens 11 C. Mr. SandovalIs Entitled to a Full and Fair Hearing on His Fourth Amendment Claim ................ 0.0 c cece eee 21 /// Tl. THE DEATH-QUALIFICATION PROCESS EMPLOYED TO SELECT THE JURY IN MR. SANDOVAL’S CASE WAS UNCONSTITUTIONAL 2.0.0...0.eee22 lI. BECAUSE THE RECORD DOES NOT DISCLOSE THAT THE JURY MUST HAVE BEEN AWARE MR. SANDOVAL ENTERED A NOT GUILTY PLEA, THE TRIAL COURT’S FAILURE TO EVER INFORM THE JURY HE HAD PLED NOT GUILTY CANNOT BE TREATED AS HARMLESS ERROR...............0..0. 002000. 24 TV. WHETHER DUE TO INSUFFICIENCY OR THE PROSECUTOR’S INVALID TRANSFERRED PREMEDITATION THEORY, THE FIRST DEGREE MURDER CONVICTION CANNOT STAND ....................... 26 V. PREJUDICIAL ERROR OCCURRED WHEN THE PROSECUTOR PRESENTED POLICE “EXPERT” TESTIMONY CONCERNING MR. SANDOVAL’S MENTAL STATE AT THE TIME OF THE SHOOTING AND URGED THE JURY TO RELY ON THAT “EXPERT” TESTIMONY TO FIND THAT MR. SANDOVAL ACTED WITH PREMEDITATION AND DELIBERATION........... 32 A. The Assignment of Error Was Preserved ................000005 34 B. The Error Was Prejudicial ...... 0.0.0... cece e cee cee eee 37 VI. THE TRIAL COURT COMMITTED PREJUDICIAL ERROR BY ALLOWING THE PROSECUTOR TO PRESENT EVIDENCE OF INFLAMMATORY NOTES WRITTEN BY RASCAL TO PROVE MR. SANDOVAL’S MENTAL STATE, DESPITE THE ABSENCE OF ANY EVIDENCE THAT MR. SANDOVAL WAS AWARE OF RASCAL’S NOTES 2.0...eeeene ans 40 /// -ii- VIL. VUL. THE TRIAL COURT COMMITTED PREJUDICIAL ERROR BY ALLOWING THE PROSECUTOR TO ADDUCE EVIDENCE THAT A PERIPHERAL WITNESS HAD BEEN THREATENED BY MEMBERS OF MR. SANDOVAL’S GANG, DESPITE THE ABSENCE OF ANY EVIDENCE THAT MR. SANDVOAL HAD ANY INVOLVEMENTIN THE THREAT ........ 0.0... cece e cece ee 46 THE TRIAL COURT PREJUDICIALLY ERRED BY DENYING THE DEFENSE REQUEST FOR A JURY INSTRUCTION PURSUANT TO CALJIC NO.2.01 OR CALJIC NO. 2.02 CONCERNING ASSESSMENT OF THE CIRCUMSTANTIAL EVIDENCE BEARING ON MR. SANDOVAL’S MENTAL STATE ...................000005 50 A. Whether Mr. Sandoval Acted With Premeditation and Deliberation Was the Only Contested Issue in the Guilt Phase ........... 0... 0c ee eee eens The Attorney General Advancesthe Untenable Position that the Purported Existence of Premeditation and Deliberation Was Established by “Direct” Evidence ............ cece cece eee cette eens Even in a Case Involving a Confession, the Evaluation of Whether a Defendant Acted with Premeditation and Deliberation Will Almost Inevitably Be Based on Consideration of Circumstantial Evidence ................. 1. The Attorney General’s Reliance Upon Inapposite Authority 2.0.0.0... cece eee 2. The Prosecutor’s Heavy Reliance on Circumstantial Evidence in His Argument to the Jury ............... The Instructional Omission Was Prejudicial ................ - ili - 50 rs) 1... 94 1 59 ..., 61 .... 64 IX. THE SPECIAL CIRCUMSTANCEFINDINGS MUST BE SET ASIDE DUE TO THE TRIAL COURT’S FAILURE TO INSTRUCT THE JURY CONCERNING THE PRINCIPLES OF CIRCUMSTANTIAL EVIDENCE RELEVANT TO THE JURY’S ASSESSMENT OF THE SPECIAL CIRCUMSTANCE ALLEGATIONS ...... 0.0 cece ee eee eee eee 65 X. THE LYING-IN-WAIT SPECIAL CIRCUMSTANCE FINDING IN THIS CASE CANNOT BE UPHELD, BECAUSE THERE IS NO EVIDENCE OF THE REQUISITE SUBSTANTIAL PERIOD OF WATCHFUL WAITING ............... 66 XI. THE TRIAL COURT VIOLATED MR. SANDVOAL’S CONSTITUTIONAL AND STATUTORY RIGHTS BY CONDUCTING CRITICAL PROCEEDINGS OUT OF MR. SANDOVAL’S PRESENCE ....... 0...eee nee 68 XII. A PENALTY PHASE RETRIAL FOLLOWING JUROR DEADLOCKIN THE ORIGINAL PENALTY PHASE TRIAL IS UNCONSTITUTIONAL 2.0.0.0...encetenes 70 XU. WITHERSPOON-WITTERROR NECESSITATES SETTING ASIDE THE DEATH JUDGMENT....................04. 71 A. Because the Trial Court Applied Erroneous Legal Standards, the Findings It Made in Deciding to Exclude D.M. Are Not Entitled to Deference ................... 73 l. Improperly Equating Equivocation With Cause for Removal .......... 0... cece ccc cette eens 74 2. Improper Double-Standard ........... 00. cece eee eee 76 B. The Record Discloses No Basis for Finding D.M. WasSubstantially Impaired ..............00 00000 cee eee eee 77 /// iv XIV. THE TRIAL COURT SHOULD HAVE GRANTED A XV. XVI. XIX. MISTRIAL WHEN DETECTIVE DELFIN CALLED MR. SANDOVALA “SON-OF-A-BITCH” FROM THE WITNESS STAND ...... 0...cencetne nae 82 THE PRESUMPTION OF PREJUDICE TRIGGERED BY THE JUROR MISCONDUCT IS UNREBUTTED ................ 87 MR. SANDOVAL SUFFERED UNFAIR PREJUDICE WHEN THE PROSECUTOR, IN VIOLATION OF A TRIAL COURT RULING, PRESENTED TO THE JURY EVIDENCE OF UNCHARGED SHOOTINGS MR. SANDOVAL APPARENTLY PERPETRATED WITH THE MURDER WEAPON................ 000: cece eee eee 91 THE PROSECUTOR COMMITTED PREJUDICIAL MISCONDUCTIN HIS ARGUMENTTO THE JURY. ............... 94 . MR. SANDOVAL’S CONSTITUTIONAL RIGHTS WERE PREJUDICIALLY VIOLATED WHEN THE PROSECUTOR GAVE AN AUDIO-VISUAL PRESENTATION FEATURING INSPIRATIONAL MUSIC, DEPICTING DETECTIVE BLACKIN HIS INFANCY AND EARLY CHILDHOOD, DISPLAYING DETECTIVE BLACK’S FLAG-DRAPED COFFIN, AND WHICH ULTIMATELY BROUGHTFIVE JURORS TO TEARS. 2.00...eeetenn ane 97 THE TRIAL COURT IMPERMISSIBLY UNDERCUT MR. SANDOVAL’S CONSTITUTIONAL RIGHT TO INFORM THE JURY DURING ARGUMENT THAT IMPOSITION OF AN LWOP SENTENCE WOULD RESULT IN MR. SANDOVAL NEVER GETTING OUT OF PRISON. ...... 0.ceceeen n eens 106 A. Mr. SandovalIs Entitled to Appellate Review of His Assignment of Error Concerning the Trial Court’s Refusal to Let Him Argue that LWOP Means LWOP. .......... 107 B. A Capital Defendant Has a Constitutional Right to Inform the Jury During Argument that LWOP Means LWOP ............. 0. cece eee eee eee ene ne eens 109 C. The Prejudicial Effect of the Constitutional Error is Manifest........0.0.0.00 0.0 c ccc e ce cece eee eee eens 113 XX. THE DEATH JUDGMENTIN THIS CASE MUST BE SET ASIDE BECAUSE OF THE TRIAL COURT'S ERRONEOUSFAILURE TO GRANT THE DEFENSE REQUEST TO INSTRUCT THE JURORS THAT SOME OF THEM COULD CONSIDER THE EFFECT OF A MITIGATING CIRCUMSTANCEEVENIF THEY DID NOT ALL AGREE THAT THE MITIGATING CIRCUMSTANCE HAD BEEN ESTABLISHED. ................... 114 XXI. WHEN A REVIEWING COURT APPLIES HARMLESS ERROR ANALYSIS TO ERRORS THAT OCCURRED IN THE PENALTY PHASE OF A CAPITAL TRIAL, THE WRONGENTITY MAKES THE LIFE/DEATH DETERMINATION. ........ 0... ceceeeeeens 121 XXII. THE DEATH PENALTY IS UNCONSTITUTIONAL................ 123 CONCLUSION 2.2...centee n eee ees 124 WORD COUNT CERTIFICATE CERTIFICATE OF SERVICE -vi- TABLE OF AUTHORITIES Cases Abu-Jamal v. Secretary, Pennsylvania Department of Corrections (3d Cir. 2011) 643 F.3d 370 ©... 0... ccc cece eens 116, 119 Adamsv. Texas (1980) 448 U.S. 38 20.teennee eens 76, 78 Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450 2.cccneces 23 Baze v. Rees (2008) 553 U.S.35 20.cecenee tenet eee ee nenees 23 Beard v. Banks (2004) 542 U.S. 406 0...cccete ene enees 117 Beck v. Alabama (1980) 447 U.S. 62520ccceeeennene eens 110 Brooks v. Kemp (11th Cir. 1985) 762 F.2d 1383 2.0...cccccna 80 Bruton v. United States (1968) 391 U.S. 12302.etenn eee eees 92 Caldwell v. Mississippi (1985) 472 U.S. 320 2.cneteect eens 121 Chapmanv.California (1967) 386 U.S. 18 000cccteeeet eens 113 Clemonsv. Mississippi (1990) 494 ULS. 738 2.cetteeen nena 37, 121 - Vii - Davis v. Mitchell (6th Cir. 2003) 318 F.3d 682 2.0... 0...ceeeens 117 Dutton v. Brown (10th Cir. 1987) 812 00.0.eence eee 78 Floyd v. Meachum (2d Cir. 1990) 907 F.2d 347 010ccceee eens 95 Franks v. Delaware (1978) 438 U.S. 1542.eee 7-8, 11, 13-16, 20-21 Gibson v. County of Washoe (9th Cir. 2002) 290 F.3d 1175 1...ceeeens 55 Gray v. Mississippi (1987) 481 U.S. 64820teeneee e eens 75 Greenv. State (Fla. App. 1983) 427 So.2d 1036 2.0...eeeeee 86 Gregg v. Georgia (1976) 428 US. 153 2.ceeenna 110 Hancev. Zant (11th Cir. 1983) 696 F.2d 940 2.0...cccenes 79 Hitchcok v. Dugger (1987) 481 U.S. 393 0.ceecnet ene ene 117 Houston v. Dutton (6th Cir. 1995) 50 F.3d 381 20...tenet eens 58 Houston v. Roe (9th Cir. 1999) 177 F.3d 901.0...ccceens 68 - Vill - Illinois v. Gates (1983) 462 U.S. 213 2...nentete es 15 In re Kelley (1990) 52 Cal.3d 487 2.00.encetenets 20 In re Larry C. (1982) 134 Cal.App.3d 62.2... 0.ceceeens 16 In re Price (2011) 51 Cal.4th 547 2.0.0. 90-91 Jackson v. Virginia (1979) 443 U.S. 307 00s27 Jones v. United States (1960) 362 U.S. 257 0...eeenee ees 15 Kelly v. South Carolina (2002) 534 U.S. 246 0...eecteee eens 109-112 Leev.Illinois (1986) 476 U.S. 530...cenceeens 16-17 Lilly v. Virginia (1999) 527 US. 116 0...ceceeen ene 17 Lockhart v. McCree (1986) 476 US. 162 0.0eeetee ere nenes 71 McKoyv. North Carolina (1990) 494 U.S. 4330.ceeeee eee 116-117 Mills v. Maryland (1988) 486 U.S. 367 00.ecttnttet tte eens 116-119 /// -ix- Morganv.Illinois (1992) 504 U.S. 719 06.eeetee e eens 79 Nederv. United States (1999) 527 US. 1 ieeen tee t eee n en eee 38 Parker v. Gladden (1966) 385 U.S. 363 2...cceee ete eens 82-84, 86 Payne v. Tennessee (1991) 501 U.S. 808 2...ceceeee ene 103 People v. Abel (2012) 53 Cal.4th 891 20... 48, 111-112 People v. Anderson (2001) 25 Cal.4th 543 2.0.0.cecenent e eens 59 People v. Aranda (2012) 55 Cal.4th 342 200.eenn teens 115 People v. Beeman (1984) 35 Cal.3d 547 0000.neens 54-55 People v. Bender (1945) 27 Cal.2d 164 20...ceceeen e nes 56-57 People v. Benjamin (1999) 77 Cal.App.4th 264 200...ceceeee eens 13 People v. Berry (1976) 18 Cal.3d 509 0...cence een e nee ees 64 People v. Bland (2002) 28 Cal.4th 313 2...ceceenn eens 28 /// People v. Bloom (1989) 48 Cal.3d 1194 2...eeeeens 54 People v. Boyette (2002) 29 Cal.4th 381 20...eees 23 People v. Bradford (1997) 15 Cal.4th 1229occeect enn eens 15 People v. Bunyard (2009) 45 Cal.4th 836 0...ecteee eee eee 119 People v. Burnham (1961) 194 Cal.App.2d 836 2.0...ceenn ees 55 People v. Carter (2005) 36 Cal.4th 1215 0...cece ee eee 66-67 People v. Ceja (1993) 4 Cal.4th 1134 2.eeeene eens 68 People v. Chew Sing Wing (1891) 88 Cal. 268 2...ees56 People v. Clark (2011) 52 Cal.4th 856 2...cccee nee eens 76 People v. Cunningham (2001) 25 Cal.4th 926 26...ees 84-85 People v. Davis (2009) 46 Cal.4th 539 oo...ccccee eee n enn nes 93 People v. Duenas (2012) 55 Cal-4th ] oo.ccnet teen eens 110 /// -xi- People v. Edelbacher (1989) 47 Cal.3d 983 0...cettecere ened 68 People v. Edwards (1991) 54 Cal.3d 787 2.0...eeeeens 111 People v. Esqueda (1993) 17 Cal.App.4th 1450 2...ceeeee 37 People v. Estrada (2003) 105 Cal.App.4th 783 2.0.0.0... ccccece eens 8 People v. Gamache (2010) 48 Cal.4th 347 2.0...eeeeen eas 91 People v. Garcia (2011) 52 Cal.4th 706 2.0.0...ceceee 74, 85-86 People v. Gonzales and Soliz (2011) 52 Cal.4th 254 20...ceceeees 60 People v. Gordon (1990) 50 Cal.3d 1223 0...eeneee eee ees 111-112 People v. Gutierrez (1993) 14 Cal.App.4th 1425 2.0...ccceens 55 People v. Guiton (1993) 4 Cal.4th 1116 20...tnen 30 People v. Guzman (1988) 45 Cal.3d 915 0.neee tte eees 74 People v. Hamilton (2009) 45 Cal.4th 863 2...enceeee ees 94 //l - Xil- People v. Hatchett (1944) 63 Cal.App.2d 144 ....0. 0...cnneee een ene 57 People v. Hines (1997) 15 Cal.4th 997 ooeteeens 65 People v. Hinton (2006) 37 Cal.4th 839 0...nteenies 20 People v. Housley (1992) 6 Cal.App.4th 947 2000.eees 38 People v. Jennings (1988) 46 Cal.3d 963 2...cece eee eens 115 People v. Jackson (1996) 13 Cal.4th 1164 2...ceceenes 23 People v. Johnson (1980) 26 Cal.3d 557 20.cneteen nes 27 People v. Joubert (1981) 118 Cal-App.3d 637 0.00... eeecece eens 15-16 Peoplev. Killebrew (2002) 103 Cal.App.4th 644200...38 People v. Kipp (1998) 18 Cal.4th 349 oooceceeee ees 111 People v. Kurland (1980) 28 Cal.3d 376 2.0...ccceee ees 15-17, 19 People v. Lashley (1991) 1 Cal.App.4th 938 oo...cece cence ne aas 55 //1/ - xiii - People v. Lebell (1979) 89 Cal.App.3d 772 2...ccceeeeee ees 43 People v. Ledesma (2006) 39 Cal.4th 641 2...eeeeens 110 People v. Lee (2011) 51 Cal.4th 620 1.0...eeeees 119 People v. Lewis (2008) 43 Cal.4th 415 20...ccceee 66-67, 76 People v. Lindberg (2008) 45 Cal-4th 1 oo.cneteens 54 People v. Livingston (2012) 53 Cal.4th 1145 20.0.ceeeee ere eens 52 People v. Loy (2011) 52 Cal.4th 46 2...eecteens 4 People v. McKinzie (2012) 54 Cal.4th 1302 2.0...cccete enees 90 People v. 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L.J. 571 occeettence ane 23 - XXi - 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 -- Mr. Sandoval respectfully submit this reply to the Respondent’s Brief (“RB”) filed by the Attorney General’s Office. INTRODUCTION Mr. Sandoval’s entitlement to appellate relief in this capital appeal is based on five principal categories of errors, deficits, and irregularities in the proceedings below: a) a multi-faceted Fourth Amendmentviolation; b) errors and omissions that compromised Mr. Sandoval’s defense concerning the only contested issue in the guilt phase, i.e., whether he acted with premeditation and deliberation; c) the insufficiency of the prosecution’s evidence; d) the unconstitutional removal of a prospective juror during jury selection for the penalty-phaseretrial; and e) -]- prejudicial violations of Mr. Sandoval’s right to a fair penalty determination.’ A. Fourth AmendmentIssue Mr. Sandoval sought an evidentiary hearing in support of his Fourth Amendmentclaim. (3 RT 309-311, 314-316; 1 CT 97-98, 103-104, 236, 240- 241.) He made a showinginthetrial court that police had made material misrepresentations and omissionsin an affidavit that resulted in issuance of a warrant to search his home. (3 RT 306-311, 524-529; 1 CT 105-140, 239-241.) Execution of the search warrant led to Mr. Sandoval’s arrest, discovery of the murder weapon, and Mr. Sandoval’s eventual confession. (8 RT 1630-1632, 1636-1637, 1652-1653; 10 RT 1966-1968; 1 CT 99; 2 CT 268-322.) Mr. Sandovaldid not receive a full and fair hearing on his Fourth Amendment claim. Thetrial court improperly refused to conduct an evidentiary hearing. In refusing to do so, the court improperly relied on extrajudicial factfinding. (AOB 72-116; pp. 7-22,infra.) Mr. Sandovalis entitled to a remandto thetrial court for a full and fair hearing on his Fourth Amendmentclaim. ' In the introduction to Mr. Sandoval’s openingbrief, the above-specified five principal categories are noted, along with additional categories. The additional categories involve challenges to the death penalty andits administration. (AOB 71.) -2- B. Guilt-Phase Issues Pertaining to Mr. Sandoval’s Mental State at the Time ofthe Shooting During the guilt phase, the only contested issue was Mr. Sandoval’s mental state. Specifically, the only question was whether he acted with premeditation and deliberation. (6 RT 1101-1104; 10 RT 1931, 2045-2050.) With respect to that issue, the trial court committed a series of errors: First, the trial court allowed the prosecution to present gang expert testimony concerning Mr. Sandoval’s mental state. (AOB 162-187.) Second,the trial court allowed the prosecution to seek to prove Mr. Sandoval’s mental state with notes written before the shooting by Mr. Sandoval’s fellow gang member, Rascal, even though there was no evidence that Mr. Sandoval had any awarenessofthe notes or their contents. (AOB 188-207.) Third, the trial court refused Mr. Sandoval’s request to instruct the jury that circumstantial evidence can only support a finding of premeditation and deliberation if the evidence is not only consistent with that mental state but also inconsistent with the existence of any other mental state. (AOB 222-239.) Fourth, the trial court failed to instruct the jury concerning circumstantial evidence relating to the mental state the prosecution was required to establish in connection with the four special circumstanceallegations in this case. (AOB 239-248.) //1 Asdiscussed in Mr. Sandoval’s openingbrief, the foregoing errors are prejudicial individually and cumulatively. (AOB 185-187, 206-207, 237-239, 247-248.) Had the plannedattack on the intendedtarget, Toro, been carried out, and hadit been fatal, the resultant case would not have been close on the issue of premeditation and deliberation. However, that is not what happened. Atthe last moment, the attack on Toro was averted. Detectives Black and Delfin drove onto Lime Avenue, and Mr. Sandoval shot them. Any premeditation and deliberation in connection with the shooting of the detectives would have had to come to fruition with extraordinary rapidity. Indeed, the detectives drove only the length of two houses from the time that Mr. Sandoval saw them until the time that he openedfire on them. C. Insufficiency and Invalid Theory ofTransferred Premeditation The murder was committed mere secondsafter the detectives turned onto Lime Avenue. Thus, the prosecution’s evidence waslegally insufficient to support a first degree murder conviction on either a theory of premeditation and deliberation or a theory of lying in wait. (AOB 130-162.) A fortiori, the prosecution’s evidence wasinsufficient to support the jury’s lying-in-wait special 2 “Sometimes the cumulative effect of errors that are harmless in themselves can be prejudicial.” (People v. Loy (2011) 52 Cal.4th 46, 77.) -4- circumstance finding. (AOB 249-259.) Furthermore, the prosecutor advanced an invalid transferred premeditation theory in his argument to the jury during the guilt phase. The prosecutor improperly argued that the evidence of premeditation and deliberation concerning the planned attack on Toro could serve as evidence ofMr. Sandoval’s mentalstate whenheshotat the detectives. It is not possible to determine from the record whetherthe jury relied on that invalid transferred premeditation theory. (AOB 137-138, 159-162.) In light of these deficiencies, the first degree murder conviction and the lying-in-wait special circumstance finding cannotstand. D. Witherspoon-Witt Error In the penalty-phaseretrial, the trial court impermissibly removed a prospective juror, D.M., for cause. Although the prospective juror equivocated somewhat when questioned about whether he would ultimately be able to return a death verdict, the record contains no support for a finding that the prospective juror wassubstantially impaired. The prospective juror is a death penalty supporter. He unequivocally maintained that he would abide bythetrial court’s instructions and serve impartially. // 1 Thetrial court applied an erroneouslegal standard during jury selection — impermissibly deeming mere juror equivocation during voir dire as a basis to removeajuror for cause. Additionally, the trial court applied a double-standard that favored the prosecution in the jury selection process. (AOB 269-318.) Thetrial court’s removal of the prospective juror necessitates reversal of the death judgment. E. Issues in the Penalty-Phase Retrial Mr. Sandoval’s penalty-phase retrial was unfair in light of the following events that occurred during the proceeding: While on the witness stand, a key prosecution witness, whois police officer, called Mr. Sandovala “son-of-a-bitch.” (AOB 319-324.) The prosecutor presented evidence to the jury that Mr. Sandoval had admitted to committing uncharged shootings with the murder weapon, even thoughthetrial court had ruled the evidence inadmissible. (AOB 334-341.) The prosecutortold the jury Mr. Sandoval hadlied to them, even though Mr. Sandoval did not testify. (AOB 342-251.) The prosecutor presented an emotional audio- visual presentation that broughtfive jurors to tears. (AOB 351-358.) Thetrial court refused to allow defense counsel to inform the jury that a life without parole (LWOP)sentence would result in Mr. Sandoval spendingtherest ofhis life in prison. (AOB 358-375.) Thetrial court refused to inform the jury that individual -6- jurors could consider mitigating evidence evenifthe jurors did not unanimously agree that the mitigation had been established. (AOB 375-379.) And,thetrial court never got to the bottom of circumstances consisting of troubling and presumptively prejudicial juror misconduct; after the disclosure of evidence that jurors were discussing the case prior to deliberations and may have been engaging in pre-deliberation balloting, the trial court never definitively determined the nature and extent of the misconductthe jurors had engaged in. (AOB 324-333.) In light of the foregoing unfairness, the death judgment imposedin this case cannotstand. DISCUSSION I. THE TRIAL COURT ERRONEOUSLY FAILED TO HOLD A FRANKS EVIDENTIARY HEARING AFTER MR. SANDOVAL MADEA SUBSTANTIAL, PRELIMINARY SHOWING THAT THE POLICE SUBMITTED A RECKLESSLY MISLEADING SEARCH WARRANT AFFIDAVIT. Police executed a search warrant at Mr. Sandoval’s homein theearly morning hours on May 2, 2000. (8 RT 1630, 1652-1653.) During the search, police found the murder weapon. (8 RT 1636-1637; 1 CT 99.) Also during the search, police apprehended Mr. Sandoval. (8 RT 1631-1632; 1 CT 99.) Shortly thereafter, Mr. Sandoval confessed. (10 RT 1966-1968; 2 CT 268-322; People’s -7- Exhibits 73 and 73-A.) In the trial court, Mr. Sandoval requested a Franks hearing in order to challenge the search warrant affidavit that led to all of this damning evidence. (3 RT 309-311, 314-316; 1 CT 97-98, 103-104, 236, 240-241.)? The trial court denied the request. (3 RT 306-319, 526-529; 5 CT 1123.) The Attorney General contendsthat the trial court properly denied Mr. Sandoval’s request for an evidentiary hearing because Mr. Sandoval purportedly failed to make a substantial showing that the search warrant affidavit was deliberately or recklessly misleading. (RB 29.) However, the Attorney General’s analysis of the issue doesnot get to the heart of the matter. The heart of the matter is that the sufficiency of the search warrant affidavit depended on Rascal’s credibility, and the affidavit did not accurately portray relevant, available information concerning Rascal’s credibility.* With respect to this subject, Mr. Sandoval madea sufficient preliminary showing to warrant a Franks evidentiary hearing. /// 3 “The hearing where a defendant challengesthe veracity ofthe affiant’s statements under oath is commonly called a Franks hearing.” (People v. Estrada (2003) 105 Cal.App.4th 783, 790.) * As defense counselputit in the trial court, “[I]f you cut downto everything, the basis for that is that [Rascal], the co-suspect [Rascal], told us it was Ramon Sandoval whodid the shooting.” (3 RT 308.) -8- A, The Showing ofProbable Cause in the Search WarrantAffidavit Law enforcement’s effort to show probable cause in the affidavit consisted of the following averments: Detective Delfin gave the following accountto fellow officers: Detectives Delfin and Black drove onto Lime Avenue. Detective Delfin saw two Hispanic males on the street. One wasin his late teens to early twenties, and had “a long style haircut”; he was standing nextto a vehicle, looking at houses. The other Hispanic male exited the vehicle and ran across the street. Gunfire then began raining down on Detectives Delfin and Black. Shortly after the shooting, police who were canvassing the neighborhood found Rascalhiding in the courtyard of one of the homes. Rascal was on CYAparole for a felony assault. During an interview, in which police considered Rascal a witness, Rascal said he had been confronted by a group of African-American males while walking throughthe area. Rascal said he fled when they made “derogatory remarks about Hispanics.” Rascaltold police he had been in possession of a .45 caliber semi-automatic weapon. However,after the shooting, he discarded it, because police arrived on scene, and Rascal did not want to be found with the gun. Rascal said he had notfired the gun. Hetold police that Det. Delfin could vouch for his credibility. At the time Rascal made this comment, he had not been informed bypolice that Det. Delfin was oneofthe victims of the shooting. Police felt Rascal was not being fully forthcoming with them. Whenthey told him that Det. Delfin had been oneofthe victims of the shooting, Rascal became visibly shaken and -9. began crying. e Rascalthen told police that Mr. Sandoval, who wasa fellow memberofB.P., was responsible for the shooting. e Rascal said that he and Mr. Sandoval had met up with two other individuals in Compton before the shooting. The four of them drove to Long Beachin two vehicles. When they arrived on Lime Avenue, Rascal saw Mr. Sandovalstep out of the vehicle he had been in. Mr. Sandoval was holding an AR-15. e Rascal exited the vehicle he had arrived in. He walked across the street. Rascal saw an unmarked police vehicle on thestreet. Heheard gunfire. He looked and saw Mr. Sandoval firing the AR-15 at the unmarkedpolice vehicle. e Rascal ran and hid until he was apprehendedbypolice. e Rascal identified Mr. Sandoval’s photo in a photo line-up. He then showed police where Mr. Sandovalresided. e Police interviewed a witness named Jimmy Falconer. Mr. Falconer was driving on Lime Avenueat the time of the shooting. Before the shooting, Mr. Falconer had seen a Hispanic male cross the street. He saw an unmarked police vehicle move toward that individual. Then, he saw another Hispanic male, with a shaved head, openfire on the police vehicle. e Police also interviewed Vincent Ramirez.’ Mr. Ramirez is a memberofE.S.P. Mr. Ramirez wasinside his residence on Lime Avenue. Mr. Ramirez heard gunfire. He went to a windowto observe what was happening. Ashegotto the window,the gunfire ceased. He saw a Hispanic male with a ° Although notnoted in the search warrantaffidavit, Mr. Ramirez’s gang monikeris “Toro.” (6 RT 1136, 1139, 1266; 7 RT 1284; 9 RT 1809, 1817.) -10- shaved head run acrossthestreet. e There is an ongoing gang feud between B.P. and E.S.P. (1 CT 109-118.) Thus, the showing of probable cause in the affidavit depended entirely on Rascal’s credibility. Rascal was the only person mentionedin the affidavit who identified Mr. Sandoval as the shooter. Further, Rascal was the only person mentionedin the affidavit who provided any evidence that Mr. Sandoval had any role in this case at all. Rascal provided the sole link to Mr. Sandoval. Thus, any finding of probable cause hinged on Rascal’s credibility. B. The Substantial, Preliminary Showing ofMr. Sandoval’s Entitlement to a Franks Evidentiary Hearing The showing/proffer Mr. Sandoval madein support of his request for a Franks hearing consisted of the following: e Police did not disclose in the search warrantaffidavit that Rascal was a suspect in two other pending homicide investigations. e Police did not disclose that, prior to applying for the warrant to search Mr. Sandoval’s residence, they had obtained a warrant, from a different judge, to search the residenceofan alternate suspect. e Police considered Rascal a suspect, and not a witness, from the momentthey arrested him. Logic and commonsensedictate that police must have viewed Rascal as a suspect, since they -l1- H/T] /// /// found him hiding in the neighborhoodright after the shooting, he hada significant criminal history, and he had admittedly been in possession of a gunat the time of the shooting. Police failed to disclose circumstancesthat tend to show Rascal’s statements to them were involuntary. These circumstancesinclude the following: » » » » » Police refused to honor Rascal’s request for counsel, and turned away a lawyer who attemptedto visit him while they were interrogating him. Police told Rascal he did not need a lawyer. Police accused Rascal of shooting Det. Black. Police subjected Rascal to a gunshotresiduetest. Police deprived Rascal of sleep and subjected him to otherwise coercive conditions of confinement. -12- » Police threatened to shoot Rascal’s brother unless Rascal identified the person whoshot the detectives.° (1 CT 97-104, 237-241; 3 RT 306-311, 522-529.) This was a more than sufficient showing to entitle Mr. Sandoval to an evidentiary hearing concerning his Franks claim. Indeed, the “‘threshold showing’”a litigant must maketo get a Franks evidentiary hearingis “less... than a preponderanceofthe evidence...” (2 LaFave, Search and Seizure (4" ed. 2004) ® Eventually, police did shoot Rascal’s brother in the course ofarresting him. (2 RT 177; Aug. RT 40-43.) Thus, Rascal’s testimony aboutthe police threatening to kill his brother has the ring of truth. Along theselines, in People v. Benjamin (1999) 77 Cal.App.4th 264, the court noted: “[W]here reliable independentevidenceindicates that an event did occur, an ex post assessmentthat the eventis unlikely .. . is almost without probative weight. [Citation.] Accordingly, while probable cause for a search cannot be supported bytheresults of the search [citation], there is no reason whythe results of the search cannot support the truthfulness of the statements made in a search warrantaffidavit by an affiant whose credibility is under attack. [Citation.] For instance,if the affiant had stated that strong marijuana odors could be smelled, and no marijuana had been found in defendant's house, defendant could reasonably arguethat the statements had to be false. Conversely, where an affiant states that strong marijuana odors could be smelled, and there are rows and rowsof adult marijuanaplants in the house,the latter would tend to corroborate the truthfulness of the former. In short, while the fruits of a search cannot transform an unlawful search into a lawful one [citation], no violence is doneto that principle where the results of the search are used to confirm the veracity of that which wasalready sufficient to establish the probable cause for the search. Just as the truth of the representations in a search warrant affidavit can be attacked with newly acquired evidence (such as subsequent interviews with witnesses) so, too, can it be corroborated with such evidence.” (/d. at p. 275, internal quotation marks omitted.) Thus, Rascal’s testimony aboutthe threat police made to shoot his brotheris corroborated by the fact that police actually did shoot his brother after making the threat. -13- § 4.4(d), p. 554.)’ Standing alone,the specific allegation that police had failed to disclose Rascal’s status as a suspect in two pending homicide investigations was sufficient to satisfy the threshold standard entitling Mr. Sandoval to an evidentiary hearing.’ Standing alone, the specific allegation that police failed to disclose their threat to shoot Rascal’s brother wassufficient to satisfy the threshold standard. Standing alone, the specific allegation that police failed to disclose their interference with an attorney’s effort to visit Rascal was sufficient to satisfy the ” Ata Franks evidentiary hearing concerning misrepresentations and/or omissions from an affidavit, “a higher burden of proof” applies than at the preliminary showingstage. At the evidentiary hearing, the accused must prove his/her allegations by a preponderance ofthe evidence. (United States v. Tate (4" Cir. 2008) 524 F.3d 449, 457.) ® Theaffiant in this case, Det. Steven F. Smith, was a memberofthe Homicide Detail of the Long Beach Police Departmentat the time he executed the affidavit. (1 CT 108.) The affidavit was submitted on May 1, 2000. (1 CT 106.) Asto one of the undisclosed homicide investigations in which Rascal was a suspect, Mr. Sandoval’s counsel submitted to the trial court a report by the Los Angeles County Sheriff's Department. (1 CT 122-131.) Rascal was the only suspect expressly namedin that report; he was namedbyhis real nameandhis gang moniker. (1 CT 122.) The homicide described in that report occurred on October 10, 1999, at a McDonaldsrestaurant in Lynwood. (1 CT 122; 3 RT 306.) The report concerning that homicide contains reference to a second,earlier homicide in which sheriff's department personnel believed Rascal was involved. (1 CT 103, 130.) With respect to that second homicide, which occurred on September6, 1999, in Carson (1 CT 103, 130; 3 RT 306), Mr. Sandoval’s counsel represented to the court that, on September 7, 1999, a sergeant in the Los Angeles County Sheriff’s Department had asked a sergeant in the Long Beach Police Departmentfor assistance in locating Rascal in connection with the sheriff department’s homicide investigation. (1 CT 240-241; 3 RT 527.) -14- threshold standard. Altogether, Mr. Sandoval’s proffer was more than sufficient to demonstrate his entitlement to an evidentiary hearing. As noted in Mr. Sandoval’s openingbrief: To mandate an evidentiary hearing, the challenger’s attack must be more than conclusory and must be supported by more than a mere desire to cross-examine. There mustbe allegations of deliberate falsehood or of reckless disregard for the truth, and those allegations must be accompanied byan offer of proof. 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. (AOB 106-107, quoting Franks v. Delaware (1978) 438 U.S. 154, 171.) To the extent the challenge is based on omissions from the search warrant affidavit, the challenger must show “the omissions were material to the determination of probable cause.” (People v. Bradford (1997) 15 Cal.4th 1229, 1297.)? “Facts are deemed material for this purpose if their omission makes the affidavit ‘substantially misleading|.]’” (People v. Joubert (1981) 118 Cal.App.3d 637, 650, quoting People v. Kurland (1980) 28 Cal.3d 376, 385.) When the defense makesthis type of preliminary showing of materiality, the defense is entitled to a Franks hearing. (/d. at pp. 650-651.) * Probable cause to search exists when thereis a “‘substantial basis for... [concluding]’ that a search would uncoverevidence of wrongdoing.” (Illinois v. Gates (1983) 462 U.S. 213, 236, quoting Jones v. United States (1960) 362 U.S. 257, 271.) -15- Mr. Sandoval madea sufficient showing underthis standard to warrant a Franks evidentiary hearing. As noted above, the probable cause showingin the search warrant affidavit was predicated on Rascal’s reliability. In challenging the sufficiency of that affidavit, Mr. Sandoval proffered substantial evidence that, due to misrepresentations and omissions, the affidavit did not portray an accurate picture of Rascal’s credibility. The omission from a search warrantaffidavit of information germaneto an informant’s credibility is a material omission that warrants a Franks hearing. (In re Larry C. (1982) 134 Cal.App.3d 62, 67-68.) Thus, a Franks hearing should have been conducted.'° The courts have recognized that statements such as thoseattributed to Rascal, implicating Mr. Sandoval, are suspect: “The arrest statements of a codefendant havetraditionally been viewed with special suspicion. Dueto his strong motivation to implicate the defendant and to exonerate himself, a codefendant’s statements about what the defendantsaid ordid are less credible than ordinary hearsay evidence.” (Lee v. Illinois (1986) 476 U.S. 530, 541, '© At that hearing, the People would have been confronted with the burden of seeking to prove the propriety or reasonableness of material omissions from the affidavit. (People v. Kurland, supra, 28 Cal.3d at p. 390; People v. Joubert, supra, 118 Cal.App.3d at p. 650.) -16- internal quotation marks omitted.)!! In an effort to deal with the suspect nature of statements such as those attributed to Rascal, the affiant did attempt to corroborate someof the information Rascal supplied to police: As revealed in the affidavit, Rascal’s statement that he walked across Lime Avenueand that Mr. Sandoval then began shooting at an unmarked police vehicle (1 CT 112-113), is consistent with witness Jimmy Falconer’s statement that he saw a Hispanic male walk or run across Lime Avenue and saw a Hispanic male shooting at the unmarked police vehicle. (1 CT 114- 117.) However, Mr. Falconer’s description of the shooter was inconsistent with Det. Delfin’s description of the shooter. Whereas the formersaid the shooter had '! The Supreme Court has repeatedly recognized that the blame-shifting statements of an accomplice are “inherently unreliable.” (Lilly v. Virginia (1999) 527 U.S. 116, 131 (plur. opn. of Stevens, J.) (“We have over the years spoken with one voice in declaring presumptively unreliable accomplices’ confessions that incriminate defendants.”], internal quotation marks and citation omitted.) “[WJhen one person accuses anotherof a crime under circumstances in which the declarant stands to gain by inculpating another, the accusation is presumptively suspect.” (Lee v. Illinois, supra, 476 U.S. at p. 541.) Furthermore, the law has “create[d] a strong inference that information from police contacts is to be viewed with extreme caution. (People v. Kurland, supra, 28 Cal.3d at p. 392.) When the information comes from an informant, who maybe involvedin the criminal conductin question, “[b]oth an issuing magistrate and a reviewing court must initially assumethat [the] information... 1s unreliable for purposes of probable cause.” (lbid.) -17- “a shaved head” (1 CT 114-115), the latter said the shooter had “a long style haircut.” (1 CT 109.) Moreover, Rascal’s identification of Mr. Sandoval as the shooter was uncorroborated. The fact that Rascal may have accurately described someofhis movements before the shooting sheds no light on whetherhetruthfully identified Mr. Sandovalas the shooter. For, as the Supreme Court of the United States has recognized, “{o]ne of the most effective waysto lie is to mix falsehood with truth, especially truth that seemsparticularly persuasive becauseofits self-inculpatory nature. (Williamson v. United States (1994) 512 U.S. 594, 599-600.)'” Thus, on the critical subject of the credibility/reliability of Rascal’s identification of Mr. Sandovalas the shooter, there is no corroboration. With respect to that critical identification issue, police should have disclosed information in the affidavit that was germaneto assessing Rascal’s credibility, and hence any showing of probable cause based on Rascal’s 2 Per the affidavit, Rascal’s description of his involvement in the events in question wasnotovertly inculpatory. This is not surprising or uncommon. “Self-exculpatory statements are exactly the ones which people are mostlikely to make even whenthey are false; and mere proximity to other, self-inculpatory, statements does not increase the plausibility of the self-exculpatory statements.” (Williamson v. United States, supra, 512 U.S. at p. 600; see also United States v. Hall, (9" Cir. 1997) 113 F.3d 157, 159-160 [applying Williamson to concludethat co-participant’s statements inculpating the defendant were insufficient to establish probable cause where co-participant had criminal history of dishonesty].) -18- statements. Indeed, the affidavit must disclose “information, favorable and adverse,sufficient to permit a reasonable, common sense determination whether circumstances whichjustify a search are probably present.” (People v. Kurland, supra, 28 Cal.3d at p. 384.) In this regard, facts are material “if, because of their inherent probative force, there is a substantial probability they would havealtered a reasonable magistrate’s probable cause determination.” (/d. at p. 385.) [W]henthe affiant knows or should knowofspecificfacts which bear adversely on the informant’s probable accuracy in the particular case, thosefacts must be disclosed. For example,if police have actually threatened or coerced the informant, or the informant bears a grudge against the defendantoris seeking to avoid or mitigate personal difficulties with the authorities, concrete evidence on those issues is material for purposesofthe affidavit. (Id. at p. 395, italics added.) Thus, the affiant in this case should have disclosed, among other things, that Rascal was a suspect in two pending homicide investigations.’? Indeed, Rascal’s '3 “Any crime involving dishonesty necessarily has an adverse effect on an informant’s credibility.” (United States v. Reeves (9" Cir. 2000) 210 F.3d 1041, 1045.) Therefore, when an informant’s criminal history includes crimes of dishonesty, additional evidence must be includedin the affidavit “to bolster the informant's credibility or the reliability ofthe tip.” (/bid.) Otherwise,“an informant’s criminal past involving dishonestyis fatal to the reliability of the informant’s information, and his/her testimony cannot support probable cause.” (Ibid., citing United States v. Meling (9" Cir. 1995) 47 F.3d 1546, 1554-1555.) “If an informant’s history of criminal acts involving dishonesty renders his/her statements unworthy ofbelief, probable cause must be analyzed without those statements.” (/d. at p. 1044.) Of course, murderis a crime involving moral -19- status as a suspect in those two homicide cases gave him motiveto lie about Mr. Sandoval’s role in the murder of Detective Black. It was in his interest to deflect attention away from himself. If the affiant is relying on an informant, the affidavit must recite “some of the underlying circumstances from which the officer concluded that the informant ... was ‘credible’ or his information reliable.” (Franks v. Delaware, supra, 438 U.S. 154, 165.) The affidavit in this case contains no information upon which police could have deemed Rascal’s identification of Mr. Sandoval as the shooter a credible identification. And, as noted, the affidavit did not disclose circumstances which cast doubt on Rascal’s credibility, such as his status as a suspect in two pending homicide investigations, such as the alleged police threat to shoot Rascal’s brother, and such asthe alleged police interference with Rascal’s access to counsel. “When a search warrant is based solely on an informant’s tip, asin this case, ‘the proper analysis is whether probable cause exists from the totality of the circumstancesto determinea sufficient level of reliability and basis of knowledge turpitude, and an individual who has been convicted of murderis subject to impeachmentbased upon that conviction. (People v. Hinton (2006) 37 Cal.4th 839, 888; In re Kelley (1990) 52 Cal.3d 487, 494.) These authorities demonstrate the significance ofthe affiant’s omission to disclose Rascal’s status as the only knownsuspect in two homicide investigations. -20- for the tip.”” (United States v. Elliott (9" Cir. 2003) 322 F.3d 710, 715, quoting United States v. Bishop (9" Cir. 2001) 264 F.3d 919, 924.) Necessarily then, the affiant’s failure to disclose information germaneto assessing Rascal’s credibility is a legally significant omission. A Franks evidentiary hearing should have been conducted based on the misrepresentations and omissions as to which Mr. Sandoval’s trial counsel adduced substantial evidence. C. Mr. SandovalIs Entitled to a Full and Fair Hearing on His Fourth AmendmentClaim. In this case, not only did Mr. Sandoval makea sufficient showing to warrant a Franks evidentiary hearing, but also the trial court improperly relied upon extrajudicial factfinding (its factfinding in a separate proceeding in which Mr. Sandoval wasnota litigant) to resolve this issue against Mr. Sandoval. (AOB 109-111, 114-116.)"* Thus, a remandis warranted for a full andfair hearing on ‘4 The Attorney General contendsthetrial court did not engage in improper extrajudicial credibility determinations. (RB 38-39.) However, in support ofthis contention, the Attorney General cites no authority and does not discuss the authorities cited in Mr. Sandoval’s opening brief. (AOB 109-111, 114-116.) With respect to the underlying facts, the Attorney General ignorespertinent circumstances, including the fact that, in denying Mr. Sandoval’s requestfor a Franks hearing, the trial court expressly found that Attorney Maria Puente-Portas had nottestified credibly at the hearing on Rascal’s motion to suppress. (3 RT 524.) This rather startling finding waslegally significant, because Ms. Puente- Portas’s testimony at Rascal’s hearing that she had been denied access to Rascal supported Mr. Sandoval’s request for a Franks evidentiary hearing. Indeed, the police did not disclose in their affidavit that they had turned away a lawyer who -2]- Mr. Sandoval’s Fourth Amendmentclaim. Il. THE DEATH-QUALIFICATION PROCESS EMPLOYED TO SELECT THE JURY IN MR. SANDOVAL’S CASE WAS UNCONSTITUTIONAL. Asset forth in Mr. Sandoval’s openingbrief, the death-qualification process that the trial court employed to seat jurors in Mr. Sandoval’s trial violated his jury trial right, his right to due process,his right to equal protection, and his right to be free from cruel and/or unusual punishment. (AOB 116-128.) The Attorney General contends Mr. Sandoval did not preserve this claim for review because he did not objectin thetrial court to the constitutionality of the death-qualification process. (RB 42.) However, as noted in Mr. Sandoval’s openingbrief, the futility exception to the requirement of an objectionin thetrial court applies in this case. (AOB 128.) In light of this court’s holdingsthat the death-qualification process is constitutional (People v. Mills (2010) 48 Cal.4th wastrying to visit Rascal when the police were interrogating him. Not only was the trial court’s finding concerning the purported lack of Attorney Puente-Portas’ testimonyrather startling, but also it constituted extrajudicial factfinding in Mr. Sandoval’s case, because the finding was made onthe basis of testimony in a hearing in which Mr. Sandoval wasnota litigant. -22- 158, 172-173; People v. Jackson (1996) 13 Cal.4th 1164, 1198),’> it would have been futile for Mr. Sandoval to object in the trial court (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455 [inferior courts are boundto follow this court’s holdings]), and the lack of an objection does not preclude appellate review of the claim. (People v. Boyette (2002) 29 Cal.4th 381, 432. [“A defendant will be excused from the necessity of ... a timely objection ... if [it] would be futile.”], internal quotation marks omitted.) Respected jurists and commentators have expressed the view that the death- qualification process producesjuries biased in favor of conviction. (Baze v. Rees (2008) 553 U.S. 35, 84 (opn. of Stevens, J., concurring in the judgment); Seltzer, et al., The Effect ofDeath Qualification on the Propensity ofJurors to Convict: The Maryland Example (1986) 29 How. L.J. 571.) Thus, in the hopesthat this view may eventually hold sway with a majority of the membersofthis court or the SupremeCourt of the United States, Mr. Sandoval respectfully presents this claim. /// /// '> As expressly noted in Mr. Sandoval’s opening brief, Mr. Sandovalis mindful of this court’s holdings concerning this issue. However,in light of the evolving nature of death penalty jurisprudencein this country, Mr. Sandoval respectfully presents this claim in order to preserveit for potential further review. (AOB 116-117, fn. 81.) -23- II. BECAUSE THE RECORD DOES NOT DISCLOSE THAT THE JURY MUST HAVE BEEN AWARE MR. SANDOVAL ENTERED A NOT GUILTY PLEA, THE TRIAL COURT’S FAILURE TO EVER INFORM THE JURY HE HAD PLED NOT GUILTY CANNOT BE TREATED AS HARMLESS ERROR. On February 16, 2001, Mr. Sandoval entered pleas of not guiltyto all charges set forth against him in the indictment and deniedall allegations in that accusatory pleading. (2 RT 37-38; 2 CT 497.) However, the trial court never informed the jury of Mr. Sandoval’s denial of the charges and allegations. The Attorney General contends Mr. Sandoval waived hisright to have the indictment read to the jury when,after the jurors and alternates were sworn, his counsel expressedthe belief that it was unnecessary for the court to read further from the indictment than the court already had. (RB 43-46; 5 RT 1060.) Assuming an enforceable waiver with respect to the reading of the indictment, any such waiverdid notrelieve the court of its duty to inform the jury that Mr. Sandoval had pled not guilty to the charges against him. In pertinent part, Penal Code section 1093 provides: The jury having been impaneled and sworn, unless waived, thetrial shall proceed in the following order, unless otherwise directed by the court: (a) If the accusatory pleading befor a felony, the clerk shall read it, -24- and state the plea of the defendantto the jury... As noted in Mr. Sandoval’s opening brief, the trial court never informed the jury that Mr. Sandoval pled not guilty to the charges against him. (AOB 131-132.) The Attorney General does not dispute this point, and the Attorney General does not claim that Mr. Sandoval waivedhis right to have the jury informed ofhis plea of not guilty. The Attorney General does contend, however, that “[t]he failure ... to state a defendant’s plea is not error[] [if] the record showsthat the jury was aware ofthe nature of the charges and the defendant’s response to those charges[,]” and that the jury in this case was aware of these circumstances. (RB 45.) In connection with analysis of this issue, Mr. Sandoval and the Attorney General havecited to the same case law — People v. Sprague (1879) 53 Cal. 491 and People v. Twiggs (1963) 223 Cal.App.2d 455. (AOB 132-133; RB 45.) These cases demonstrate that a trial court’s failure to inform the jury of a defendant’s not guilty plea to the charges against him is not reversible error if the record reveals “that the jury must have been aware”of the defendant’s not guilty plea. (Twiggs, supra, 223 Cal.App.2d at p. 464, citing Sprague, supra, 53 Cal. at p. 494.) While the Attorney General claims the jury must have been aware of Mr. Sandoval’s not guilty plea to the charges against him (RB 45-46), the record does -25- not support this contention. Neither the trial court nor any ofthe trial attorneys ever informed the jury that Mr. Sandoval had denied all the charges and allegations leveled against him. Furthermore, in the opening statement presented by Mr. Sandoval’s lead counselin the guilt phase, counsel concededcertain aspects of Mr. Sandoval’s culpability and noted that Mr. Sandoval had confessed. (6 RT 1101-1109.) In closing argument, defense counsel conceded that Mr. Sandoval was guilty of murder, and asked the jury to find that he was guilty of second degree murderrather than first degree murder. (10 RT 2045-2053.) Thus, as explained in Mr. Sandoval’s openingbrief, the fact that the trial court never informed the jury of Mr. Sandoval’s not guilty plea cannot be treated as harmless error. IV. WHETHER DUE TO INSUFFICIENCY OR THE PROSECUTOR’S INVALID TRANSFERRED PREMEDITATION THEORY, THE FIRST DEGREE MURDER CONVICTION CANNOT STAND. With premeditation and deliberation, Mr. Sandoval set out with fellow gang membersto kill Toro in retaliation for a gang-related drive-by shooting. (2 CT 280-281, 287-289; 7 RT 1328.) However, intervening circumstances prevented Mr. Sandoval from carrying out his plan. Those intervening circumstances brought about a result different from what had been planned. -26- As Mr. Sandoval and his cohorts were setting up on Lime Avenueto attack Toro, Detectives Black and Delfin pulled onto the street. (8 RT 1565-1566.) Mr. Sandoval ducked downbehinda car to avoid being seen by the detectives. (2 CT 295-297.) The detectives maneuvered toward Rascal. (2 CT 295-297; 9 RT 1763- 1764, 1767, 1773-1775.) Mr. Sandoval rose up and began shooting at the detectives. (2 CT 295-297; 8 RT 1570-1575, 1718-1732; 9 RT 1764.) From the time he first saw the detectives until the time he openedfire, the detectives had driven the length of two houses. (2 CT 294; 8 RT 1567.) Viewing this evidence in the light most favorable to the prosecution (Jackson v. Virginia (1979) 443 U.S. 307, 319; People v. Johnson (1980) 26 Cal.3d 557, 578), no rational factfinder could determine that Mr. Sandoval acted with premeditation and deliberation when he shotat the detectives, or that he perpetrated the crime by meanslying in wait. By happenstance, the detectives arrived on the street when Mr. Sandovaland his fellow gang members were preparing to attack Toro. Mr. Sandoval saw the detectives, they drove two house lengths (2 CT 294; 8 RT 1567), and Mr. Sandoval acted on the impulse ofthe moment. In an impropereffort to convince the jury that Mr. Sandoval acted with premeditation and deliberation, the prosecutor suggested Mr. Sandoval’s -27- premeditation and deliberation arose long before he arrived at Lime Avenue,that he went over to Lime Avenuein pursuanceof a premeditated and deliberate plan to kill Toro, and that, at the last moment, the “target ... change[d]|[.]” (10 RT 2028, 2057-2059.) Thus, the prosecutor urged the jury to treat Mr. Sandoval’s mental state concerning Toro as transferring to and becominghis mental state concerning the detectives. However, this transferred intent theory is untenable because Mr. Sandovalnevergot to the point where he actually aimed his gun and pulled the trigger at Toro. The transferred intent doctrine does no apply in the context of cases suchasthis, where the killer’s plan to kill his intended target is interrupted by someoneelse before the killer attempts to strike the fatal blow at the intended target. (AOB 147-152, 159-161; People v. Bland (2002) 28 Cal.4th 313, 320-321 [the transferred intent doctrine extendsliability when the killer’s fatal blow is directed at the intended target but strikes someoneelse]; Mounts, Premeditation and Deliberation in California: Returning to a Distinction Without a Difference (2002) 36 U.S.F. L.Rev. 261, 326 [“Evidencethat the defendant planned for another crime cannot,in itself, establish premeditation and deliberation to kill.”].) The Attorney General contendsthe prosecutor did not rely on a theory of transferred premeditation. (RB 46-48.) Although the Attorney General doesnot say so, the Attorney General is constrained to make this argument, becauseif the -28- prosecutor did advancea transferred premeditation theory, that theory wasplainly invalid on the facts of this case. And, indeed, the record unmistakably reveals the prosecutor did advance a transferred premeditation theory. Specifically, the prosecutor argued to the jury: “The premeditation and deliberation in termsofthis particular defendantstarted a long time before they ever got to Lime [Avenue].” (10 RT 2028.) “The intended target happened to change, but the premeditation and deliberation and intention to go over there and kill existed long before he got anywhere near Lime [Avenue].” (10 RT 2028.) “[T]he killing was... a result of ... deliberat[ion] and premeditation... [{] What we’re talking about is converting from Target A to Target B.” (10 RT 2057.) “In going to Lime [Avenue]|,] [I]ook at the willful, premeditated notion that caused him to be there.” (10 RT 2058.) “Consider the gang meeting, and what they wrote down, what the gang meeting was about[,] 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. [§]] Those are the things that accompaniedthiskilling. Those processes didn’t discard themselves becausepolice officers came downthestreet. []] The fact of the matteris, the willful, deliberate[,] premeditated aspects of this crime all cameinto place and are satisfied long before the crime ever occurred.” (10 RT 2059.) These quotes from the prosecutor’s argumentto the jury, which are highlighted in Mr. Sandoval’s opening brief (AOB 138, fn. 97; AOB 159-160), are -29- not mentioned in the Attorney General’s brief. However, the quotes about Mr. Sandoval’s premeditation and deliberation purportedly arising before he arrived at Lime Avenue andthe target changing whenthe detectives turned onto the street are part and parcel of the prosecutor’s invalid transferred premeditation theory. The prosecutor urged the jury to take the premeditation and deliberation that undisputably existed with respect to Mr. Sandoval’s plan to kill Toro and to apply it / transferit to the sudden, unplanned killing of the detectives. The Attorney General notes that the prosecutor did present some argument to the jury that was not based upona transferred premeditation theory. (RB 47- 48.) However, “[w]hen the prosecution presents its case to the jury on alternate theories, some of whichare legally correct and others legally incorrect, and the reviewing court cannot determine from the record on whichtheory the ensuing general verdict of guilty rested, the conviction cannot stand.” (People v. Perez (2005) 35 Cal.4th 1219, 1233, internal quotation marks and brackets omitted.)’® '6 “When, as here, the prosecutor premises his argumenton an erroneous legal theory of guilt, the jury instructions do not clarify any possible misunderstanding, and the reviewing court cannot determine whetherthe jury predicated a guilty verdict on that erroneoustheory, the judgmentcannotstand.” (People v. Morales (2001) 25 Cal.4th 34, 51 (dis. opn. of Brown,J.), citing People v. Guiton (1993) 4 Cal.4th 1116, 1128.) “[W]hen a prosecutor advances an erroneoustheory of guilt that jury instructionsfail to clarify, the result is legal error for which the reviewing court mayreverse irrespective of a contemporaneous objection.” (Jd. at p. 54, fn. 2.) -30- The Attorney General presents a detailed, fact-bound argumentthat the evidence wassufficient to support a finding that Mr. Sandoval’s murder of Detective Black was premeditated and deliberate and/or that it was carried out by meansof lying in wait. (RB 49-62.) Unlike the prosecutor, however, the Attorney General makes this argument without urging an invalid transferred premeditation theory. Unlike the prosecutor, the Attorney General does not argue that any premeditation and deliberation concerning the killing of Detective Black arose before Mr. Sandovalarrived at Lime Avenue,or that, with respect to premeditation and deliberation, there was a conversion from Target A to Target B. The Attorney General’s argumentis limited to the facts in the admittedly “brief” interval of time between the arrival of the detectives on Lime Avenueand the shooting. (RB 52-53, 62.) The Attorney General argues that Mr. Sandoval’s plan was “formed quickly.” (RB 53.) This argument differs dramatically from the prosecutor’s argumentto the jury that Mr. Sandoval’s “premeditation and deliberation ... existed long before he got anywhere near Lime [Avenue].” (10 RT 2028.) Although the Attorney General aptly avoids making a transferred premeditation argument in defending the sufficiency of the evidence, the prosecutor did not avoid making such an argumentto the jury. The prosecutor -3]- specifically advancedthat invalid theory in the trial court. Becausethere is no basis for determining from the record that the jury did not rely on the prosecutor’s invalid transferred premeditation theory, the first degree murder conviction cannot stand. (People v. Perez, supra, 35 Cal.4th at p. 1233.) V. PREJUDICIAL ERROR OCCURRED WHEN THE PROSECUTOR PRESENTED POLICE “EXPERT” TESTIMONY CONCERNING MR. SANDOVAL’S MENTAL STATE AT THE TIME OF THE SHOOTING AND URGED THE JURY TO RELY ON THAT “EXPERT” TESTIMONY TO FIND THAT MR. SANDOVAL ACTED WITH PREMEDITATION AND DELIBERATION. The Attorney General acknowledges “[a]n expert [witness] ... may not testify that an individual had specific knowledge or possessed a specific intent. (RB 65-66.) In derogation of this rule, the jury in this case heard gang expert testimony that, before heading over to Lime Avenue, Mr. Sandoval planned to shoot andkill any police who interfered with B.P.’s attack on Toro. (9 RT 1893- 1894, 1897-1900.) Specifically, the jury heard gang expert testimony that Mr. Sandoval’srole in the planned attack on Toro wasto be the “back up person” armed with a powerful weapon (9 RT 1893), that he “strategically” assumed “a position of advantage[,]” from which he could provide cover fire against any police officers who “attempt[ed] to interfere” (9 RT 1893-1894), and that in the -32- event police interfered with the attack, it was his “duty to take them on andpin them downorkill them if possible.” (9 RT 1899.) In argumentto the jury, the prosecutor contended the foregoing evidence established that gang memberslike Mr. Sandoval “always consider law enforcement’s potential presence at their shootings[,]” and that “they have practices and proceedings in place” to account for such possibilities. (10 RT 2054-2055.) Continuing on, he argued, “They do consider law enforcement’s presence. They do bring long armsin order to fend off police and apprehensionoftheir fellow gangsters.” (10 RT 2055.) And, he urged the jury to consider the gang expert testimony “when you consider whether there’s premeditation and deliberation.” (10 RT 2059.) Thus, the jury was erroneously presented with expert testimony concerning Mr. Sandoval’s mental state at the time of the shooting.”’ '7 The Attorney General cites People v. Ward (2005) 36 Cal.4th 186, in support of the proposition that the gang expert testimonyin this case was permissible. (RB 66.) However, Ward is distinguishable from the instant case. In Ward, “[t]he substance of the [gang] experts’ testimony, as given throughtheir responses to hypothetical questions, related to [the] defendant’s motivations for entering rival gangterritory andhislikely reaction to language or actions he perceived as gang challenges.” (/d. at p. 210.) “This testimony wasnot tantamount to expressing an opinion asto [the] defendant’s guilt.” (/bid.) By contrast, the expert testimonyin the instant case was that Mr. Sandoval, as part of a preconceivedplan, strategically positioned himself in a location from which he could shoot any police who showed up andinterfered with the attack on Toro, and that he was duty boundto shoot and kill any such police. (9 RT 1893-1894, 1899.) Consistent with the purpose for which the testimony was adduced,the -33- A, The Assignment ofError Was Preserved The Attorney General contends Mr. Sandoval’s right to pursue this claim has been forfeited due to inadequate objections by his counselin the trial court. (RB 64.) Not so. Mr. Sandoval’s trial attorneys repeatedly objected to expert testimony concerning his mental state at the time of the shooting. They did so before, during, and after the presentation of the offending evidence. (9 RT 1811-1814, 1843, 1899-1904.) The prosecution presented gang expert testimony from two witnesses: Investigator Ignacio Lugo and Sergeant Richard Valdemar. Investigator Lugotestified first. Before his testimony, Mr. Sandoval’s trial counsel requested a hearing pursuant to Evidence Codesection 402 in order to ascertain in advance the scope ofhis testimony before the jury. However, when the prosecutor, in responseto this request, represented that Investigator Lugo’s testimony was “just gonna be general stuff about Barrio Pobre and East Side Paramount|[,]” defense counsel said no foundational hearing outside the presence of the jury would be necessary. (9 RT 1758-1759.) However, during the prosecutor urged the jury in closing argumentto consider the testimonyin finding Mr. Sandovalhad acted with premeditation and deliberation. (10 RT 2054-2055, 2059.) -34- prosecutor’s direct examination of the Investigator in the presence ofthe jury, the Investigatortestified that Mr. Sandoval’s role with the CAR-15 wasto provide “cover” for his fellow gang members during their attack on Toro, and the Investigator testified that this was a “methodical,” “planned out” event, in which Mr. Sandoval wasto provide “coverfire against police” if they showed up. (9 RT 1814.) Defense counsel immediately objected, movedto strike the testimony, and requested a sidebar conference. (9 RT 1814.) Investigator Lugo’s testimony went way beyondthe limited scope of testimonythe prosecutor had said he wasgoingto elicit from him. Following the sidebar conference,the trial court sustained the defense objection and ordered the jury to “disregard the statement about the police.” (9 RT 1814.) Sgt. Valdemar wasthe prosecution’s second gang expert. Prior to his testimony in the presence ofthe jury, he testified in a foundational hearing pursuant to Evidence Code section 402. (RB 63, fn. 16.) In that foundational hearing, the sergeanttestified that Mr. Sandoval’s role was to provide coverforhis fellow gang membersby being “prepared to shootpolice officers if they tried to interfere[.]” (9 RT 1833, 1838.) Counsel moved to excludethis testimony, characterizing it as “rank speculation” and contending thatit lacked foundation. Thetrial court overruled the objection. (9 RT 1843.) -35- Then, in the presence of the jury, the sergeant gave the testimony in question. Hetestified that Mr. Sandoval was“the back up person,” that he “strategically” assumed “a position of advantage[,]” from which he could provide coverfire against any police officers who “attempt[ed] to interfere...” (9 RT 1893-1894.) According to the sergeant, one of the reasons Mr. Sandovalhad the powerful CAR-15 wasthat police might arrive and interfere with B.P.’s attack on Toro. (9 RT 1897-1898.) He testified that, in the event police arrived, it would be Mr. Sandoval’s “duty to take them on and pin them downorkill them if possible.” (9 RT 1899-1900.) Thereupon, defense counsel objected, and requested a sidebar conference. (9 RT 1900.) Defense counsel said the sergeant was “basically put[ting] into the jury’s mind the intent of the defendant.” Defense counsel pointed out, “He can’t knowthat. It’s beyond his expertise.” (9 RT 1901.) Elaborating further on the objection, defense counsel said the prosecution and the sergeant were “trying to put into the mindofthe jury that the defendant has some premeditation againstthe police....” (9 RT 1902.) This was improper, counsel stressed, because “it goes into the jury’s province ... to determine whetherit’s a premeditated and deliberate[] murder.” (9 RT 1903.) Thetrial court expressed “concern” about not wanting the sergeant to “get into anything that is the jury’s province,” such as “the mental state of the defendant.” (9 RT 1905.) The court -36- then commented,“I think he’s going beyond his expertise as a gang expert.” (9 RT 1906.) The sidebar conference ended, and the court did not makeanyrulings or commentsin the presenceofthe jury. (9 RT 1907.) The foregoing chronology establishes that Mr. Sandoval’strial attorneys maderepeated objections to the testimony in question. They objected on the very groundsthat are pursued in this appeal. Hence, the assignmentof error under consideration has not been forfeited. B. The Error Was Prejudicial Asdiscussed in Mr. Sandoval’s openingbrief, the erroneous presentation of this evidence before the jury was prejudicial. (AOB 185-187.) Thefact that the prosecutor repeatedly urged the jury during closing argumentto consider the inadmissible evidence in evaluating premeditation and deliberation (10 RT 2054-2055, 2059), is a circumstance that militates strongly against treating the error as harmless. (Clemons v. Mississippi (1990) 494 U.S. 738, 753 [recognizing the significance in harmlesserroranalysis of “the State repeatedly emphasiz[ing] and argu[ing]” a subject that should not have been presentedto the jury]; People v. Esqueda (1993) 17 Cal.App.4th 1450, 1487 [erroneous admission of evidence wasprejudicial where “prosecutor heavily relied” on the evidence “during closing argument”]; United States v. Serrano (1“ -37- Cir. 1989) 870 F.2d 1, 9 [no harmless error were “the government emphasized”the erroneously admitted evidence“in its closing arguments to the jury”].) The type oferror that occurred here “infringe[d] upon the jury’s factfinding role!'*! and affect[ed] the jury’s deliberative process in waysthatare,strictly speaking, not readily calculable.” (Neder v. United States (1999) 527 U.S. 1, 18.) In People v. Killebrew (2002) 103 Cal.App.4th 644, which is discussed in Mr. Sandoval’s opening brief and the Attorney General’s brief (AOB 159, 172, 176- 178, 182, 184, 186-187; RB 67), the court recognized that gang expert testimony concerning the mental state of gang member during criminal activity amounts to “an improper opinion”as to how the gang expert “believe[s] the case should be decided.” (Killebrew, supra, at p. 658.) Because “the expert testimony of a law enforcementofficer ... often carries an aura of special reliability and trustworthiness” (United Sates v. Gutierrez (9" Cir. 1993) 995 F.2d 169, 172; see generally People v. Housley (1992) 6 Cal.App.4th 947, 957 [“juries may accord undue weight to an expert’s opinion”), the improper admission of such evidence is not readily susceptible to being treated as harmless. /// '8 As discussed above,the trial court expressed that Sgt. Valdemar’s testimony wasinterfering with the “jury’s province” to decide “the mental state of the defendant.” (9 RT 1905.) -38- Additionally, during guilt phase deliberations, the jury sent out a note inquiring aboutthe effect of a jury finding that Mr. Sandoval had acted without premeditation and deliberation. (10 RT 2082; 5 CT 1179.) This suggests the jury struggled with the issue of Mr. Sandoval’s mental state, and it weighs against a finding of harmlessness. (People v. Pearch (1991) 229 Cal.App.3d 1282, 1295 (“closenessofthe caseis also indicated by juror questions”]; Thomas v. Chappell (9" Cir. 2012) 678 F.3d 1086, 1104.) Furthermore, the prejudicial effect of this error was exacerbated bythetrial court’s erroneousfailure to instruct the jurors that they could only rely on circumstantial evidence to conclude Mr. Sandoval acted with premeditation and deliberation if that was the only inference that could be drawn from the circumstantial evidence. (AOB 222-239; pp. 50-65, infra.) In light of the foregoing,the trial court’s improper admission of police “expert” testimony concerning Mr. Sandoval’s mental state at the time of the shooting was not harmlesserror. /// /// // 1 -39- VI. THE TRIAL COURT COMMITTED PREJUDICIAL ERROR BY ALLOWING THE PROSECUTOR TO PRESENT EVIDENCE OF INFLAMMATORY NOTES WRITTEN BY RASCAL TO PROVE MR. SANDOVAL’S MENTALSTATE, DESPITE THE ABSENCE OF ANY EVIDENCE THAT MR. SANDOVAL WAS AWARE OF RASCAL’S NOTES. Before E.S.P. gang membersshot at B.P. gang membersin an alleywayin Compton, which led B.P. gang membersto seek to retaliate by attempting to attack/shoot Toro at his home in Long Beach, Rascal wrote some notes about B.P. memberspurportedly notkilling enough people. (People’s Exhibit 26.)'” Although no evidence waspresented that the content of Rascal’s notes was ever shared with Mr. Sandoval, the prosecutor argued that Rascal’s written remarks were relevant to the issue of premeditation in this case. (6 RT 1085-1086; 7 RT 1413-1415; 10 RT 2028.)” Based onthis theory, the trial court allowed the '? The notes were juvenile and profane. The notes consisted of remarks such as: “Taggers in the neighborhood,no straps, too much hanging out and not enough dead [mother fuckers][.]” “Get your ride on you bitchass fools.” (People’s Exhibit 26; 9 RT 1889-1891.) © The prosecutor madethis argument both outside the presenceofthe jury and in the presenceofthe jury: In proceedings outside the presenceofthe jury, the prosecutor argued for the admissibility of Rascal’s notes by contending that the notes “go[] strictly to premeditation for the crime.” (6 RT 1085-1086.) Further, the prosecutor argued that Mr. Sandoval, “by his conductof shooting a police officer, and trying to kill two of them,... adopt[ed] exactly the state of mind whichis stated in [the notes].” (6 RT 1153-1154; 7 RT 1413-1415.) In his -A0- prosecutor to adduce evidence concerning Rascal’s notes in the presence of the jury. Thetrial court admitted the notes pursuant to the hearsay exception for statements of coconspirators. (6 RT 1086, 1150-1151; 7 RT 1416-1417.)”' This waserror. It was prejudicial. The Attorney General contendsthetrial court properly admitted Rascal’s notes because “they were made by Rascalprior to Detective Black’s murder while [Mr. Sandoval], Rascal, and other members of the Barrio Pobre gang were conspiring to commit various crimes, including murder.” (RB 69.) The Attorney General observes that Rascal’s notes were written “prior to the gang meeting”that took place at the Dairy Street residence. (RB 69.) Additionally, the Attorney General! contends the evidenceattrial “clearly established that following the meeting, [Mr. Sandoval] and others wentto ‘go hit ... East Side Paramount’ in retaliation for an earlier drive-by shooting.” (RB 69.) argumentto the jury, the prosecutor suggested Mr. Sandoval’s premeditation commenced“at the [gang] meeting when [B.P. members] were talking about not putting in enough workandnotkilling enough people.” (10 RT 2028.) Although, as noted, there was no evidence that Mr. Sandoval or any other B.P. members discussed the contents of Rascal’s notes at the meeting, this is what the prosecutor arguedto the jury. *I After the prosecutor contended Rascal’s notes were admissible to show premeditation on Mr. Sandoval’s part (6 RT 1085-1086), the trial court stated the notes were “highly probative[.]” (6 RT 1086, 1150-1151; 7 RT 1416-1417.) -4]- However,the drive-by shooting did not take place before the gang meeting at Dairy Street, as the Attorney General seems to suggest. Rather, it took place after the gang meeting. The relevant chronology of events is simple and straightforward: e Rascal writes the notes. (People’s Exhibit 26; 7 RT 1303, 1398-1399, 1403-1404; 9 RT 1889-1891.) e The B.P. gang meeting takes place at the Dairy Street residence in LongBeachin the early afternoon on Saturday, April 29, 2000. (6 RT 1158, 1222, 1236, 1250-1251; 7 RT 1305-1315; 9 RT 1858.) The meeting concludes at approximately 3:00 to 4:00 p.m. (7 RT 1318.) e The E.S.P. drive-by shooting at B.P. gang memberstakes place at the alleyway in Compton. (7 RT 1318-1319; 9 RT 1858-1861; 10 RT 1969-1970; 2 CT 276-278.) e B.P. gang members undertake an effort to retaliate against E.S.P. by going after Toro at his Long Beach residence. (6 RT 1093;7 RT 1328; 9 RT 1893; 2 CT 281-289.) This effort is underway by between approximately 8:30 and 10:30 p.m. (7 RT 1318-1324, 1328.) The Attorney General also suggests that Rascal’s notes “were discussed at the gang meeting at Dairy Street. (RB 71.) However, the Attorney General does 2 Onthe first line of page 21 of Mr. Sandoval’s openingbrief, there is a citation to 10 RT 1093. This is mistaken; there is no 10 RT 1093; it should be 6 RT 1093. > As noted in footnote 20, ante, the prosecutor also madethis suggestion in his argument to the jury. (10 RT 2028.) -42- not offer any citation to the record in support of this assertion. (RB 71.) No citation to the record is possible concerningthis subject, because, as noted in Mr. Sandoval’s opening brief, no evidence was introducedat trial about what was discussed during the gang meeting, and no evidence wasintroduced that Rascal’s notes were discussed during the gang meeting. (AOB 189-190 & fn. 112.) Indeed, as Mr. Sandoval’s trial attorneys stressed in their objections to the notes being admitted, there was no evidence that Mr. Sandoval had even been cognizant of the notes or their contents. (6 RT 1148-1149.) Thetrial court’s admission of Rascal’s notes was a glaring error. Asa matter of commonsense, notes written by one person do not prove the subsequent mental state of another person who is unaware of the notes. The law conformsto this commonsense notion. (See People v. Lebell (1979) 89 Cal.App.3d 772, 779- 780.)The admission of Rascal’s notes waserror of constitutional magnitude because Mr. Sandoval had no opportunity to question Rascal about the notes and 4 Tn the Lebell case, whichis cited in Mr. Sandoval’s opening brief (AOB 201-202), the prosecution offered against the defendant an incriminating admission made by another individual. However, there was no evidencethat the defendant had heard or had an opportunity to respond to the incriminating admission; there was only evidence that the defendant had been in the general vicinity at the time of the admission. Thus, there was no foundational relevance for admitting the evidence to show the defendant’s mental state. (People v. Lebell, supra, 89 Cal.App.3d at pp. 799-780.) -43- whether the contents of the notes had ever been presented to Mr. Sandoval. (United States v. Hall (9" Cir. 2005) 419 F.3d 980, 985-986 [the accused “enjoys a due processright to confront witnesses against him”].)”° Finally, the Attorney General contends Mr. Sandoval wasnot prejudiced by the admission of Rascal’s notes. The Attorney General bases this contention primarily on the strength of the evidence that Mr. Sandoval killed Detective Black. (RB 71-72.) The evidence that Mr. Sandoval was Detective Black’s killer was strong; indeed, it was overwhelming and uncontested. However, the strength of that evidence is not germaneto the prejudice inquiry at hand. The prejudice inquiry here is limited solely to the effect of the error on the jury’s determination that Mr. Sandoval acted with premeditation and deliberation,1.e., the only issue contested in the guilt phase. The prosecution’s evidence that Mr. Sandovalacted with premeditation and deliberation in shooting the detectives was not strong. It was circumstantial and it was highly problematic. Furthermore, as discussed in Mr. Sandoval’s openingbrief, it is well- established that a prosecutor’s emphasis on erroneously admitted evidence militates against a finding that the error is harmless. (AOB 206-207.) In this case, > As discussed in Mr. Sandoval’s openingbrief, the Due Process Clause regulates the admission of nontestimonial hearsay evidence such as Rascal’s notes. (AOB 202-203.) 44. the prosecutor stressed Rascal’s notes in his guilt phase opening statement and closing argument. (6 RT 1080, 1087-1090; 10 RT 2028.) The Attorney General’s discussion of prejudice omits any referenceto this principle. Finally, the trial court’s erroneous admission of Rascal’s notes wasone of a series of significant errors committed by the trial court with respect to matters pertaining to the jury’s evaluation of circumstantial evidence relating to Mr. Sandoval’s mental state.”° And, the note that the jury sent out during deliberations, inquiring about the effect on their verdict of a finding of no premeditation (10 RT 2082; 5 CT 1179), indicates that the jury wasstruggling with the sufficiency of the prosecution’s proof concerning Mr. Sandoval’s mental state. Thus, individually and cumulatively, these errors pertaining to matters relating to the jury’s evaluation of Mr. Sandoval’s mental state were prejudicial. /// /// 6 As discussed in Mr. Sandoval’s opening brief and throughoutthis reply brief, the trial court committed a numberoferrors that impacted the jury’s evaluation of Mr. Sandoval’s mental state. First, the court allowed the prosecution to present “expert” testimony concerning Mr. Sandoval’s mental state. Second, the court allowed Rascal’s notes to be presented as evidence of Mr. Sandoval’s mental state. Third, the court refused to instruct the jury that circumstantial evidence can only support a finding of premeditation and deliberation if the evidence is not only consistent with that mental state but also inconsistent with the existence of any other mentalstate. -45- VII. THE TRIAL COURT COMMITTED PREJUDICIAL ERROR BY ALLOWING THE PROSECUTOR TO ADDUCE EVIDENCE THAT A PERIPHERAL WITNESS HAD BEEN THREATENED BY MEMBERSOF MR. SANDOVAL’S GANG,DESPITE THE ABSENCE OF ANY EVIDENCE THAT MR. SANDVOAL HAD ANY INVOLVEMENTIN THE THREAT. Angela Estrada wasa relatively unimportant witnessin the guilt phase of Mr. Sandoval’s trial. She testified that she had been present in residence where the B.P. meeting organized by Rascal took place on the day Detective Black was murdered — April 29, 2000. (6 RT 1158.) She did not know what was discussed during the meeting. (6 RT 1198.) Shetestified that she is a memberofB.P., and she identified a number of B.P. members. (6 RT 1156-1157, 1162-1172, 1178- 1179.) After Ms. Estrada testified that she had not told police she had seen any B.P. memberswith guns on the evening of April 29, 2000 (6 RT 1185-1186, 1189- 1190), a detective testified that she had told him she had seen B.P. members, including Mr. Sandoval, with guns that evening. (6 RT 1207-1208.) Ms.Estrada’s testimony did not establish any key fact that was not established by other evidence. There was no dispute by the defense that the B.P. meeting organized by Rascal had taken place on April 29, 2000. Identification of key participants in the case wasnot an issue during the guilt phase. And, the -46- defense did not dispute that Mr. Sandoval had a gun that evening. In fact, the defense concededin its guilt phase opening statement and closing argumentthat Mr. Sandoval had shot and killed Detective Black. (6 RT 1102-1104; 10 RT 2045-2050.) However, during the prosecutor’s direct examination of Ms. Estrada, evidence was adduced that Ms. Estrada had been threatened in connection with her testimony in this case. There was no evidencetying the threat to Mr. Sandoval directly. (6 RT 1159-1162, 1183-1187, 1206-1207.) However, the clear inference from the evidence concerning this subject was that the source of the threat was members of Mr. Sandoval’s gang. As discussed in Mr. Sandoval’s openingbrief, the prosecutor insinuated the threat came from B.P. members by asking Ms. Estrada whether she had previously told him and detectives the threat was conveyed by B.P. (AOB 220; 6 RT 1161.) By “incorporat[ing] inadmissible evidence[,]” this line of questioning was “just as improperas the direct admission of such evidence.” (United States v. Sine (9" Cir. 493 F.3d 1021, 1031; AOB 220.) In light of the circumstances that Ms. Estrada wasnot a key witness, her credibility was not a material issue, and the threat was apparently issued by fellow gang membersofMr. Sandoval’s,the trial court erred by admitting the threat -47- evidence. “[T]his court has held that evidence of a third party’s attempt to intimidate a witnessis inadmissible against a defendant unless there is reason to believe the defendant wasinvolvedin the intimidation.” (People v. Abel (2012) 53 Cal.4th 891, 924.) However, this court has also held that “evidence ofa ‘third party’ threat may bear on the credibility of a witness, whetheror notthe threatis directly linked to the defendant.” (People v. Mendoza (2011) 52 Cal.4th 1056, 1084.) And, “evidence that a witnessis afraid to testify or fears retaliation for testifying is relevant to the credibility of that witness and is therefore admissible.” (/bid., internal quotation marks omitted.) Thus, in this context, “a trial court has discretion, within the limits of Evidence Codesection 352, to permit the prosecution to introduce evidence supporting a witness’s credibility on direct examination, particularly when the prosecution reasonably anticipates a defense attack on the credibility of that witness.” (/d. at p. 1085.) In the cases in whichtrial court determinations to admit third party threat evidence have been upheld, the threatened witnesses were key witnesses, whose credibility was at issue. (Abel, supra, 53 Cal.4th at p. 925 [“Ripple’s credibility wasa Significant issue in this case. The evidence therefore had substantial -48- probative value.”]; Mendoza, supra, 52 Cal.4th at p. 1085 [“Flores wasthe prosecution’s key witness, and the credibility of her testimony was essential to establish the defendant’s guilt....”].) Based on the foregoing authorities, and in light of the peripheral significance and uncontroverted subjects about which Ms.Estradatestified, the admission of evidence that she had been threatened, together with the prosecutor’s insinuation that the threat came from Mr. Sandoval’s fellow gang members, was error. As discussed in Mr. Sandoval’s openingbrief, such evidenceis,by its nature, prejudicial. (AOB 218-219.) Althoughthetrial court did instruct the jury in this case that there was no implication in the prosecutor’s questions concerning threats to Ms. Estrada linking those threats to Mr. Sandoval (6 RT 1160-1161), the court did not instruct the jury to limit its consideration of the evidence to the witness’s state of mind. (Compare People v. Olguin (1994) 31 Cal.App.4th 1355, 1368 [Thetrial court correctly limited the [third party threat] evidence to ‘the witness’ state of mind,attitude, actions, bias, prejudice, lack or presence thereof,’ and we presumethe jury adheredto the trial court’s limitations on this testimony.].) Thus, the trial court’s instruction did not cure the error or mitigate its prejudicial effect. /// -49. VI. THE TRIAL COURT PREJUDICIALLY ERRED BY DENYING THE DEFENSE REQUEST FOR A JURY INSTRUCTION PURSUANTTO CALJIC NO.2.01 OR CALJIC NO.2.02 CONCERNING ASSESSMENT OF THE CIRCUMSTANTIAL EVIDENCE BEARING ON MR. SANDOVAL’S MENTALSTATE. The law recognizesa distinction between direct and circumstantial evidence. Based upontheindirect nature of circumstantial evidence, the criminal law requires juries to exercise caution in relying on such evidenceandbarsjuries from convicting defendants on the basis of circumstantial evidence that does not conclusively establish guilt. These principles apply in cases such as the instant case, where the only contested issue is the defendant’s mental state. Of course, trial courts are required to instruct juries regarding these principles in order to guide their evaluation of circumstantial evidence. A, Whether Mr. Sandoval Acted With Premeditation and Deliberation Was the Only Contested Issue in the Guilt Phase. The sole theory on which the defense contested the prosecution’s case in the guilt phase was that Mr. Sandoval did not act with premeditation and deliberation whenhefired gunshots into the unmarked police vehicle occupied by Detectives Black and Delfin. (6 RT 1101-1104; 10 RT 1931, 2045-2050.) Although Mr. Sandovalstated in his confession that he shot at the detectives in the vehicle (2 CT -50- 296), he did notstate that he fired those shots with premeditation and deliberation. To the contrary, in his confession, he described a hasty, rash, impulsive act that wasnotthe productof careful reflection. He told his interviewers that the unmarked police vehicle traveled the length of only two housesona residential street from the time that he first saw the vehicle to the time he fired the shots. (2 CT 294.) When he sawthe police vehicle maneuver toward Rascal, he “jumped off and ... started shooting at the officers.” (2 CT 296.) By no means do those remarksconstitute direct evidence that Mr. Sandoval acted with premeditation and deliberation. At most, the remarks and the other evidencein the case,i.e., evidence having only circumstantial relevance to mental state, gave rise to jury question as to whether he acted with premeditation and deliberation.”’ Unsurprisingly, the prosecutor’s argument to the jury concerning the issue of premeditation and deliberation was premised on circumstantial evidence.” This court has long held that when the prosecution’s case rests substantially on circumstantial evidence, [the] trial court[] must give *7 If the Attorney Generalis correct that the prosecution’s evidence metthe sufficiency threshold with respect to the issue of premeditation and deliberation (RB 46-62), the evidence certainly did not establish the presence of premeditation and deliberation as a matter of law. Rather, the evidence did no more than present a question of fact for the jury to resolve concerning that issue. *8 The prosecutor’s reliance on circumstantial evidencein his closing argumentis discussed in detail at pages 61-64, infra. -51- an instruction embodyingthe principle that 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. Livingston (2012) 53 Cal.4th 1145, 1167.) Mr. Sandoval’s trial attorneys requested the trial court to instruct the jury in accordancewith this long established rule. (10 RT 1925-1926, 1931.) In support of the request, they explained that mental state was the “only issue” they were contesting in the guilt phase. (10 RT 1931, italics added.) In an effort to convince the trial court of the need for the instruction, defense counsel stressed that “[t]he gravamenofthis case is circumstantial evidence....” (10 RT 1926.) Further, defense counsel noted that the prosecution’s presentation of gang expert testimony concerning Mr. Sandoval’s mental state constituted circumstantial evidence. (10 RT 1926-1927.) Nevertheless, the court refused the requested instruction. (10 RT 1926-1927.) Defense counsel interposed a constitutional objection to the court’s ruling, noting that the ruling hamperedthe ability of the defense to effectively argue mental state. (10 RT 1931.) /// /// /// -52- B. The Attorney General Advances the Untenable Position that the Purported Existence ofPremeditation and Deliberation Was Established by “Direct” Evidence. In this appeal, the Attorney General suggests the evidence of premeditation and deliberation adduced attrial was primarily direct,” rather than circumstantial.*° (RB 79-80.) Thus, according to the Attorney General, thetrial court properly declined to instruct the jury concerning the constraints applicable to the assessmentofthe sufficiency of circumstantial evidenceto establish premeditation and deliberation. (RB 78-80.) The Attorney General’s position is unsustainable. Asa general matter, and as a matter of commonsense, evidence of a person’s mental state is almost invariably circumstantial. Moreover, the relevant evidence in this case concerning Mr. Sandoval’s mental state at the time of the shooting wasin fact primarily,if not entirely, circumstantial. Although Mr. Sandoval’s confession consisted of direct evidence that he shot at the detectives, it ? Direct evidenceis “evidencethat directly proves a fact, without an inference or presumption, and which initself, if true, conclusively establishes that fact.” (Evid. Code, § 410.) °° “Circumstantial evidence also maybecalled indirect evidence. Circumstantial evidence doesnot directly prove the fact to be decided, but is evidence of another fact or group of facts from which [one] maylogically and reasonably concludethe truth of the fact in question.” (CALCRIM No.223.) -53- did not consist of any direct evidence that his mental state was one of premeditation and deliberation. He did not say he acted with premeditation and deliberation. The evidence bearing on that issue was circumstantial. Even if the record could be twisted and distorted to treat Mr. Sandoval’s confession as a statement consisting of “direct” evidence of premeditation and deliberation, who is to say whetherthat “direct” evidenceis to be believed? Determining the believability of an individual’s statements about his/her mental state necessarily entails an assessment of the circumstances in which the statement is made. In other words,it is a determination that cannot be made without evaluating circumstantial evidence. C. Even ina Case Involving a Confession, the Evaluation of Whether a Defendant Acted with Premeditation and Deliberation Will Almost Inevitably Be Based on Consideration ofCircumstantial Evidence. Thetrial court’s failure to instruct the jury concerning the evaluation of circumstantial evidence concerning Mr. Sandoval’s mental state was a conspicuous, significant, prejudicial error. ceeThis court has repeatedly recognized that “‘[e]vidence of a defendant’s state of mind is almost inevitably circumstantial...” (People v. Lindberg (2008) 45 Cal.4th 1, 27, quoting People v. Bloom (1989) 48 Cal.3d 1194, 1208; People v. Beeman (1984) 35 Cal.3d 547, 558-559; accord, People v. Park (2003) 112 -54- Cal.App.4th 61, 68; People v. Gutierrez (1993) 14 Cal.App.4th 1425, 1436; Gibson v. County of Washoe (9"Cir. 2002) 290 F.3d 1175, 1190 [direct evidence of a person’s mental state rarely exists”].) Direct evidence of the mental state of the accusedis rarely available except through his or her testimony. [And,] [t]he trier of fact is and mustbe free to disbelieve the testimonyandto infer that the truth is otherwise when such an inference is supported by circumstantial evidence regarding the actions of the accused. (People v. Beeman, supra, 35 Cal.3d at pp. 558-559.)"! “[C]riminal intent can rarely, if ever, be shown by statements or testimony of a defendant. We, therefore, have in this state a very commonsenserule announcedin section 21 of our Penal Codethat ‘The intent or intention is 999manifested by the circumstances connected with the offense.’” (People v. Murphy 3! “Generally, the question whether the defendant harbored the required intent must be inferred from the circumstancesofthe shooting.” (People v. Ramos (2004) 121 Cal.App.4th 1194, 1207-1208, citing People v. Lashley (1991) 1 Cal.App.4th 938, 945-946.) “One whointentionally attempts to kill another does not often declare his state of mind either before, at, or after the momentheshoots. Absentsuch direct evidence, the intent obviously must be derived from all the circumstancesofthe attempt, including the putative killer’s actions and words. Whether a defendant possessed the requisite intent to kill is, of course, a question for the trier of fact.” (Lashley, supra, 1 Cal.App.4th at pp. 945-946.) “[I]ntentis inherently difficult to prove by direct evidence. Therefore, the actitself, together with its surrounding circumstances must generally form the basis from which the intent of the actor may legitimately be inferred.” (People v. Protor (1959) 169 Cal.App.2d 269, 279; accord, People v. Burnham (1961) 194 Cal.App.2d 836, 841.) “Intent is in the mind;it is not the externalrealities to which intention refers.” (People v. Rojas (1961) 55 Cal.2d 252, 257.) -55- (1943) 60 Cal.App.2d 762, 77-771.) Thus, “[i]n interpreting one’s actions for the purpose of determiningthe intent, it is quite proper, and indeed often necessary, to consider the entire conductof the individual before and after the particular act whichis the subject of scrutiny.” (People v. Taylor (1928) 88 Cal.App. 495, 500.) Although the inevitably circumstantial nature of mens rea evidenceis discussed in Mr. Sandoval’s opening brief (AOB 228-229), this actuality is not discussed in the Attorney General’sbrief. Whether Mr. Sandoval’s mental state included premeditation and deliberation was a question of fact for the jury to decide. (People v. Bender (1945) 27 Cal.2d 164, 178; People v. Chew Sing Wing (1891) 88 Cal. 268, 270 [““There is no question arising in a trial for murder more peculiarly or purely one of fact than the one whetherthe killing was done with deliberation and premeditation....”].) In order to facilitate the jury’s resolution of that question of fact, it was incumbentuponthetrial court to instruct the jury concerning the principles of law to be applied in making that determination. (Bender, supra, 27 * “For in point of solid and substantial justice, it cannot be said that the modeofkilling, whether by stabbing, strangling, or shooting, can either extenuate or enhancethe guilt; unless where, as in case of poisoning,it carries with it an internal evidence of coo] and deliberate malice.” (People v. Bender, supra, 27 Cal.2d at pp. 177-178, internal quotation marks omitted.) -56- Cal.2d at p. 175 [“In a criminal case where circumstantial evidence is substantially relied upon for proofof guilt it is obviousthat instructions on the general principles of law pertinent to such cases necessarily include adequateinstructions on the rules governing the application of such evidence.”], internal quotation marks omitted.) In People v. Hatchett (1944) 63 Cal.App.2d 144, the defendant, who was charged with manslaughter, admitted shooting the decedent, but claimed it was in self-defense. (/d. at pp. 147-149, 151-152.) Notwithstanding the defendant’s admission, the prosecution’s evidence bearing upon the issue of the defendant’s mental state was mostly circumstantial. (/d. at p. 152.) Thetrial court’s failure to instruct the jury concerning circumstantial evidence, along with otherinstructional errors, necessitated reversal of the defendant’s conviction. (/d. at pp. 152-156, 165.) In reaching this conclusion, the appellate court stressed that the “defendant had right to an instruction on circumstantial evidence based upon her own theory of the case....” (Id. at p. 153.) As noted above, the sole defense theory in the guilt phase was that Mr. Sandoval acted without premeditation and deliberation. 3 The Hatchett caseis cited in Mr. Sandoval’s opening brief (AOB 231, 235-236), but not mentioned in the Attorney General’s brief. -57- He wasentitled to a circumstantial evidenceinstruction onthat theory. The mere fact that a defendant has confessed to a homicide does not mean that his/her mental state in the commission of the homicideis thereby established by direct evidence. (Houston v. Dutton (6" Cir. 1995) 50 F.3d 381, 383 [“‘Although it is possible that the killing could have occurred as the defendant stated in his confession, the circumstantial evidence supports an inference of premeditation and deliberation.”]; People v. Pullerson (1899) 159 N.Y. 339, 344 [53 N.E. 1119, 1120] [stating in a case in which the defendant had confessed to killing the victim, that “[t]he only question that can arise out of these facts as to whichthere can be a possible doubt is as to whether there was that deliberation and premeditation on the part of the defendant which would constitute the crime of murderin the first degree”].) ** The Attorney General’s position that Mr. Sandoval’s confession constituted direct evidence of premeditation and deliberation is essentially an implicit contention that the defense theory wasfrivolous, that there was no defense to the charges that Mr. Sandoval acted with premeditation and deliberation, and that the guilt phase amountedto little more than a slow plea. The record underminesthis position. In fact, if the prosecution’s evidence was not insufficient as a matter of law to support a finding of premeditation and deliberation, the interpretation of that evidence most favorable to the prosecution is that it gave rise to a circumstantial basis for inferring the presence of premeditation and deliberation. -58- 1. The Attorney General’s Reliance Upon Inapposite Authority The Attorney General relies on People v. Anderson (2001) 25 Cal.4th 543, in support of the proposition that the trial court in the instant case properly declined to instruct the jury concerning the assessmentofthe sufficiency of circumstantial evidence. (RB 79-80.) However, Anderson is inapposite here. In Anderson, the defendant claimedthetrial court’s refusal to instruct the jury pursuant to CALJIC No. 2.01 affected the jury’s consideration of factor (b) evidence — aggravating evidencethat the defendant had committed a crime of violencein addition to those for which he wastried. (/d. at pp. 581-582.) In rejecting the contention, this court stressed that the evidence ofthe other violent crime, a murder, “was not introduced to prove [the] defendant’s ‘guilt’ ofa charged crime, but to demonstrate, as a circumstance in aggravation ofthecapital murders, that he had engagedin other violent criminal conduct.” (/d. at p. 582, italics added.) This court heldthe trial court had properly declined to instruct the jury concerning the assessment of circumstantial evidence bearing on that aggravating circumstance because the prosecution had “relied primarily upon direct evidence,i.e., ... eyewitness testimony..., to prove that [the] defendant committed [that] murder.” (Jbid.) /// -59- In cases such as Anderson, the question before the jury with respect to factor (b) evidence is whether the defendant has engagedin “criminalactivity... involv[ing] the use or attempted use of force or violence or the express or implied threat to use force or violence.” (Pen. Code, § 190.3, subd. (b).) In instructing a jury concerning the assessment of such evidence,the trial court is not even required “to instruct on the elements of ‘other crimes’....” (People v. Gonzales and Soliz (2011) 52 Cal.4th 254, 324.) Thus, Anderson provides no support to the Attorney General’s position. In contrast to Anderson,the subject with respect to which the assessment of circumstantial evidence wasat issue in the instant case was charged offenses, not mere factor (b) evidence. Whereas there was no needforthetrial corut in Andersonto instruct the jury on the elements of the factor (b) offense (Gonzales and Solilz, supra, at p. 324), the trial court in the instant case was required to instruct the jury on the elements of the offenses with which Mr. Sandoval was charged. Those elements included Mr. Sandoval’s mental state. In Anderson,it was simply unnecessary for the jury to pass on the defendant’s mentalstate in connection with the factor (b) evidence. Thus, Anderson lends no support to the Attorney General’s position that the trial judge in this case was not required to instruct the jury concerning the assessment of circumstantial evidencerelating to -60- the mental state of charged offenses. 2. The Prosecutor’s Heavy Reliance on Circumstantial Evidence in His Argumentto the Jury In the guilt phase of the instant case, the prosecutor’s argumentto the jury concerning premeditation and deliberation was premised primarily, if not entirely, on circumstantial evidence. The prosecutor’s argument removesany doubtthat Mr. Sandoval wasentitled to an instruction concerning the jury’s assessment of circumstantial evidence bearing on his mentalstate. At the beginning of his argumentto the jury, the prosecutor posed this question: “When did premeditation and deliberation start in this case?” He answered his own question bystating, “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 have changed, but the premeditation and deliberation and intention to go overthere and kill existed for long before he ever got anywhere near Lime [Avenue].” (10 RT 2028.) Specifically, the prosecutor suggested the jurors could infer premeditation and deliberation from the facts that Mr. Sandoval loaded the gun he used before going over to Lime Avenue, got four armedfriends together, drove over to Lime Avenuein two cars, and concealed himself beside a car “when he s[aw] the police -61- officers coming from two housesnorth....” (10 RT 2028-2029.) The prosecutor argued that Mr. Sandoval choseto shootthe police rather than letting them arrest Rascal, because heis a gangster whois loyalto his “herd.” (10 RT 2029.) The prosecutor also urged the jury to infer premeditation and deliberation from the testimony of a resident of Lime Avenue whohad characterized the sound of the shots as “a very deliberate boom, boom, boom,boom....” (10 RT 2030- 2031.) Further, the prosecutor urged the jury to infer premeditation and deliberation from the fact that Mr. Sandoval fired 28 shots. (10 RT 2031.) In urging the jury to infer that Mr. Sandoval had time to makea “cold, calculated judgment”after seeing the unmarkedpolice vehicle, the prosecutor stressed the circumstances that Mr. Sandoval saw twoofficers in the vehicle, saw what the officers were wearing, and noticed that the officers were not aware ofhis presence. (10 RT 2032.) The prosecutor urged the jury to infer that this was not “a swift, random attack” carried out by any “gangster out on thestreet[,]” but rather that this was “a crime ... perpetrated by the upperlevel of Barrio Pobre....” (10 RT 2033.) The prosecutor stressed Mr. Sandoval’s moniker, “Menace”; he said Mr. Sandoval’s fellow gang members gave the gun with serious firepower to Mr. Sandoval because they knew that he would “take care of business.” (10 RT 2034.) -62- Then, toward the end of his argument, the prosecutorsaid: And whatI’m asking youto dois listen to what camein duringthis trial, listen to what planning and premeditation, the thought processes that wentthere. [J] Don’t ignore what [gang expert] Rich Valdemar said because [defense counsel] doesn’t like it. Consider his experience and what he knowsabout gangs.[{]] Consider what the other expert, Ignacio Lugo, told you about gangs, Barrio Pobre, and how they get along with East Side Paramount and whattheir thought processes are in terms ofofcarrying out crimes. Considerall that when you consider whether there ’s premeditation and deliberation. [{] Consider the gang meeting, and what they wrote down, whatthe meeting was about[,] 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 becausepolice officers came downthe street. The fact of the matteris, the willful, deliberate[,] premeditated aspects of this crime all came into place and are satisfied long before the crime ever occurred. (10 RT 2059,italics added.) The prosecutor argued that it was a “willful, premeditated notion that caused” Mr. Sandovalto be at Lime Avenue. (10 RT 2058.)*° Then, according to the prosecutor, Mr. Sandoval “sees the police. He knowshis role. He knows what 3° The prosecutor even went so far as to argue: “Lookat the defendant’s phonebook[,} when they’re talking about x-ing out E.S.P. throughout the phone book. This premeditation starts andis reflected in everything defendant does. All of the graffiti you see through the video.” (10 RT 2061, italics added.) The prosecutor did not expressly argue that Mr. Sandoval’s premeditation began when he joined B.P. years earlier, but that appears to be the logical(or illogical) extension of the prosecutor’s argument. -63- he’s supposed to do. He’s got all this premeditation and deliberation that caused him to load the firearm and be engagedin this in thefirst place.” (10 RT 2063.) Thus, over and overagain, the prosecutor pointed to circumstances in the case from which heurgedthe jurors to infer the requisite mental state. He did not simply argueto the jury that Mr. Sandoval’s confession constituted direct evidence of premeditation and deliberation. In other words, his argument in support of a finding of premeditation and deliberation was an argument based on circumstantial evidence. D. The Instructional Omission Was Prejudicial. The facts that mental state was the only contested issue in the guilt phase and that the prosecutor’s argument concerning mental state was based on circumstantial evidence weigh heavily against a finding that the trial court’s refusal to instruct the jury concerning the proper assessmentof circumstantial evidence was harmless. (People v. Berry (1976) 18 Cal.3d 509, 518 [Since this theory of provocation constitutes defendant’s entire defense to the first count, we have no difficulty concluding that the failure to give such instruction was prejudicial error[.]”]; People v. Ross (2007) 155 Cal.App.4th 1033, 1057 [considering the prosecutor’s argumentto the jury in assessing the prejudicial effect of instructional error]; United States v. Zuniga (9" Cir. 1993) 989 F.2d -64- 1109, 1111 [failure to instruct ... on the defendant’s theory of the case, where there is evidence to support such instruction, ... can never be considered harmless”].) Moreover, the fact-bound nature of the mental state inquiry is simply a question that should beleft to a properly instructed jury in the first instance. Mr. Sandovalis entitled to have a meaningfuljury trial on that issue. IX. THE SPECIAL CIRCUMSTANCEFINDINGS MUST BE SET ASIDE DUE TO THE TRIAL COURT’S FAILURE TO INSTRUCT THE JURY CONCERNING THE PRINCIPLES OF CIRCUMSTANTIAL EVIDENCE RELEVANT TO THE JURY’S ASSESSMENTOF THE SPECIAL CIRCUMSTANCE ALLEGATIONS. For manyofthe samereasonsthat the trial court prejudicially erred by failing to instruct the jury concerning circumstantial evidence with respect to the charged offenses, the court’s failure to instruct the jury concerning circumstantial evidence with respect to the special circumstance allegations wasprejudicial error. (AOB 239-248.) Althoughtrial courts do not need to give circumstantial evidence instructions concerning special circumstance allegations when such instructions have been given with respect to charged offenses (People v. Hines (1997) 15 Cal.4th 997, 1051), that exception is inapplicable here, as the court gave no circumstantial evidence instruction with respect to the charged offenses. The -65- special circumstance findings cannotstand. For example, one of the special circumstance allegations in this case was that Mr. Sandoval’s murder of Detective Black was committed in furtherance of criminal street gang activities. (2 CT 482-484.) A substantial portion of the prosecution’s case consisted many different forms of evidence concerning gang activities in which Mr. Sandoval participated. Whether Mr. Sandoval contemplated advancing the purposes of his gang when he was shooting at Detective Black is a classic factual question that called upon the jury to draw inferences from the circumstantial evidence in the case. Dueto the court’s instructional omission, the jury wasleft to resolve this topic without appropriate guidance. X. THE LYING-IN-WAIT SPECIAL CIRCUMSTANCEFINDING IN THIS CASE CANNOT BE UPHELD, BECAUSE THEREIS NO EVIDENCE OF THE REQUISITE SUBSTANTIAL PERIOD OF WATCHFUL WAITING. As discussed in Mr. Sandoval’s openingbrief, this court set aside lying-in- wait special circumstancefindings in People v. Lewis (2008) 43 Cal.4th 415, 507- 509, and People v. Carter (2005) 36 Cal.4th 1215, 1261-1262. (AOB 254-256.) In both cases, this court found insufficient evidence of substantial periods of -66- watchful waiting. The Attorney General does not cite the Carter case, and although the Attorney General cites Lewis in a footnote (RB 89, fn. 18), the Attorney General does not discuss the holding in Lewis concerning the insufficiency of the evidence in connection with the lying-in-wait special circumstancefinding. Lewis and Carter are controlling in the instant case. Indeed, this case involvesa lack of a substantial period of watchful waiting coextensive with the lack of substantial periods of watchful waiting in those two cases. The relevant facts in Lewis and Carter are discussed in Mr. Sandoval’s opening brief. (AOB 254-256.) In this case, when Detectives Black and Delfin unexpectedly arrived on Lime Avenue, Mr. Sandoval ducked down. The prosecutor acknowledgedthat he did so “in order... [to] not be seen by the police officers [who were] approach[ing] him.” (10 RT 1934.) From the time that Mr. Sandovalfirst saw the officers until the time that he openedfire on them, the officers only drove the length of two residential homes. (2 CT 293-294, 317-318.) The jurors saw exhibits depicting the brief distance the detectives drove in that brief period of time. (AOB 254,fn. 144.) This evidence wasinsufficient as a matter of law to demonstrate the requisite substantial period of watchful waiting that is necessary to support a -67- lying-in-wait special circumstancefinding. The evidentiary showing necessary to support a lying-in-wait special circumstance finding is necessarily greater than the evidentiary showing necessary to support a first degree murder verdict on a lying in wait theory. (AOB 250-252; People v. Ceja (1993) 4 Cal.4th 1134, 1147 (conc. opn. of Kennard, J.); People v. Edelbacher (1989) 47 Cal.3d 983, 1023; Houston v. Roe (9" Cir. 1999) 177 F.3d 901, 907-908.) The required evidentiary showinghasto be greater in orderto comport with the constitutionally-based narrowing function of special circumstances. (AOB 251, fn. 141.) Thus, even if this court determines that the prosecution’s evidence wassufficient to support a first degree murder conviction on a lying in wait theory, there is no basis for a finding on this record that the evidence wassufficient to support a lying-in-wait special circumstancefinding. XI. THE TRIAL COURT VIOLATED MR. SANDVOAL’S CONSTITUTIONAL AND STATUTORY RIGHTS BY CONDUCTING CRITICAL PROCEEDINGSOUT OF MR. SANDOVAL’S PRESENCE. Asdiscussed in Mr. Sandoval’s opening brief, and as discussedin thisbrief, the only contested guilt phase issue was whether Mr. Sandovalacted with premeditation and deliberation when he shotat the detectives in the unmarked -68- police vehicle. During the jury’s guilt phase deliberations, the jury sent a written question to the court concerning the subject of premeditation. (10 RT 2082; 5 CT 1179.) Thereupon,the trial court convened proceedings to formulate a response to the jury’s question. The court conducted those proceedings in Mr. Sandoval’s absence, albeit with the consent of Mr. Sandoval’s trial counsel. (10 RT 2082- 2083.) Mr. Sandoval did not waivehis right to be present during proceedings of this nature. The Attorney General acknowledges noncompliance with the requirements of Penal Code section 977 on this point. (RB 97.) In the instant case, as in People v. Romero (2008) 44 Cal.4th 386, 417-419, the trial court improperly conducted proceedings concerning a jury question in the absenceofthe accused. The relevantrule is clear and simple: A criminal defendant charged with a felony has a due processright underthe Fifth and Fourteenth Amendments to the United States Constitution, as well as a right to confrontation underthe Sixth Amendment,to be presentat all critical stages ofthetrial. (Id. at p. 418.)°° °° “An appellate court applies the independentor de novo standard of review to a trial court’s exclusion of a criminal defendantfrom trial, either in whole or in part, insofar as the trial court’s decision entails a measurementofthe facts against the law.” (People v. Waidla (2000) 22 Cal.4th 690, 741.) -69- Thetrial court’s violation of this rule took place in the context of a proceeding pertaining to the only contested issue in the guilt phase. If the rule requiring the defendant’s presencein all capital proceedingsis a rule with any bite, and not just bark, the violation of the rule with respect to a proceeding involving the sole issue in the case, an issue of life or death, cannot be disregarded as harmlesserror. XII. A PENALTY PHASE RETRIAL FOLLOWING JUROR DEADLOCKIN THE ORIGINAL PENALTY PHASE TRIALIS UNCONSTITUTIONAL. As noted in Mr. Sandoval’s openingbrief, the majority of states in this country forbid a penalty phaseretrial following juror deadlockin the original penalty phasetrial. Thosestates call for automatic imposition ofa life sentence in the event ofjuror deadlock on the question of penalty. (AOB 262-269.) In the hopesthat this court and/or the Supreme Court of the United States eventually adopt the majority rule as a constitutional imperative, or otherwise, Mr. Sandovalrespectfully presents this claim here to preserve it for the future. Out of the 24 death-qualified jurors who were asked to determine whether the death penalty is warranted in this case, five concludedthatit is not. Nevertheless, Mr. Sandoval has now beensentenced to death. This unseemly and -70- troubling result would not have cometo pass if California were with the majority ofjurisdictions which imposelife sentences following juror deadlock on the question of penalty. Death is supposed to be different. But, death is not being treated much differently from penalties in non-capital criminal casesif it can be imposed following proceedings in whichfive out of 24 jurors have concludedthat death is not warranted. XIII. WITHERSPOON-WITT ERROR NECESSITATES SETTING ASIDE THE DEATH JUDGMENT. “(T]he group of ‘Witherspoon-excludables’®”includes only those who cannot and will not conscientiously obey the law with respect to one of the issues in a capital case....” (Lockhart v. McCree (1986) 476 U.S. 162, 176.) The burden of proving that a prospective juror is excludable for cause under Witherspoonrests with the party asserting the challenge. (Wainwright v. Witt (1985) 469 U.S. 412, 423 “In light of the gravity” of a juror’s decision whether to impose the death penalty, this court has recognized that “for many membersofsociety[,] their *” Witherspoon vy.Illinois (1968) 391 U.S. 510. -7] - personal and conscientious views concerning the death penalty would makeit very difficult ever to vote to impose the death penalty.” (People v. Stewart (2004) 33 Cal.4th 425, 446, internal quotation marks omitted.) However, “a prospective who simply wouldfind it very difficult ever to impose the death penalty,is entitled—indeed, duty bound—tosit on a capital jury, unless his or her personal views actually would prevent or substantially impair the performanceofhis or her duties as a juror.” (/bid., internal quotation marks omitted.) Prospective juror D.M.wasthe type ofjuror this court described in Stewart. It would have been very difficult for him to vote to impose the death penalty, but there is no evidence that he was unwilling to follow the trial court’s instructions and follow his oath as a juror. There is no evidence that he wassubstantially impaired. Prospective juror D.M.is a supporter of the death penalty (15 RT 2992- 2993; 49 Supp. I CT 14152-14154), who, during jury selection in this case, struggled when asked whether he would be able to return a death verdict if selected. In response to repeated questions as to whether he could vote to impose the death penalty, D.M. gave varying answers, including “yes,” “I think so,” and “I really don’t know until I face that situation.” (15 RT 2993-2998; 49 Supp. I CT 14154.) However, D.M. repeatedly stated during voir dire that he wouldlisten to -72- the evidence, follow the court’s instructions, serve as a fair and impartial juror, and considerthe available penalty options. (15 RT 2993-2994, 2997-2998; 49 Supp. I CT 14145-14146, 14157.) The Attorney General contendsthetrial court’s decision to remove prospective juror D.M.for cause during jury selection was supported by substantial evidence, that the decision was based on a finding that D.M. was unable to makelife versus death decisions, and thatthe trial court did not apply an erroneouslegal standard in reaching its decision. (RB 99-104.) The Attorney General is mistaken. A. Because the Trial Court Applied Erroneous Legal Standards, the Findings It Made in Deciding to Exclude D.M. Are Not Entitled to Deference. The Attorney General contendsthe trial court applied proper legal standards in connection with its decision to exclude D.M., and that its decision is entitled to appellate deference. (RB 102.) The Attorney Generalis incorrect. Thetrial court applied two erroneousstandardsin its Witherspoon/Witt rulings. First, the court improperly equated equivocation with cause for removal. Second,it applied an improper double-standard — gauging defense challenges for cause by one standard and prosecution challenges for cause by another. Specifically, the court tolerated equivocation about ability to impose an LWOPsentence, but did not -73- tolerate equivocation about ability to impose a death sentence.”® . Improperly Equating Equivocation With Causefor Removal Thetrial court stated “when jurors equivocate ... that’s a challenge for cause that’s appropriate.” (4 RT 814.) Like thetrial court in People v. Pearson (2012) 53 Cal.4th 306,” thetrial court in the instant case expressly relied on People v. Guzman (1988) 45 Cal.3d 915, for the proposition that “prospective jurors may be 999excused ‘due to their equivocal views on capital punishment[.]’” (Pearson, supra, at p. 330; 4 RT 814.) Indeed,the trial court, citing to Guzman andothercases, stated, “The case law says that when jurors equivocate ... they can be excused for cause.” (4 RT 814.) However, in Pearson, this court explained, “Guzman does not stand for the idea that a person is substantially impaired for jury service in a *8 Application of such a double-standardflies in the face of the purpose of Witherspoonandits progeny,viz., to prevent leaving a life or death decision to a “tribunal ‘organized to return a verdict of death.’” (People v. Garcia (2011) 52 Cal.4th 706, 742, citing Witherspoon, supra, 391 U.S. at p. 521.) To exclude from a capital jury all those who will not promise to immovably embrace the death penalty in the case before them unconstitutionally biases the selection process. So long as a juror’s views on the death penalty do not prevent or substantially impair the juror from conscientiously considering all of the sentencing alternatives, including the death penalty where appropriate [citation], the juror is not © disqualified by his of her failure to enthusiastically support capital punishment. (People v. Pearson, supra, 53 Cal.4th at p. 332, internal quotation marks and brackets omitted.) °° This court’s relatively recent decision in Pearson is discussed in the Attorney General’s brief. (RB 102-103.) -74- capital case becausehis or her ideas about the death penalty are indefinite, complicated or subject to qualifications, and we do not embrace sucha rule.” (Pearson, supra, at p. 331.)*° Thus, in Pearson, this court heldthetrial court had proceededonthe basis of “an erroneous view of the law” when it excused a prospective juror due to “‘equivocal’ views on the merits of the death penalty....” (/bid.) Thetrial court in the instant case proceeded onthe basis of the very same “erroneous view ofthe law.” (4 RT 814.) Becausethetrial court applied this erroneouslegal standard,its findings are not entitled to deference. (Gray v. Mississippi (1987) 481 U.S. 648, 661, fn. 10.) This is so because“[h]istorical facts ‘found’ in the perspective framed by an erroneous legal standard cannot plausibly be expected to furnish the basis for correct conclusionsif and merely becausea correct standardis later applied to them.” (Rogers v. Richmond (1961) 365 U.S. 534, 547.) /// /// /// “° Therule this court rejected in Pearson is the very “rule” the prosecutor relied on in moving to exclude D.M. for cause: The prosecutorsaid, “I would make a motion based on his ambivalence.” Thetrial court agreed, stating, “I think so too. I think he’s too ambivalent one way or another.” (15 RT 2998.) -75- 2. Improper Double-Standard Anotherreason for denial of deference to thetrial court’s findings in the Witherspoon/Witt contextis the court’s application of an improper double- standard. The double-standard applied bythetrial court is discussed in Mr. Sandoval’s opening brief. (AOB 305-317.) This subject is not mentioned in the Attorney General’s brief. Although this court has held Witherspoon/Witt challenges*' are to be measured by the same standard regardless of whether they are directed at jurors perceived to be disposed to impose a death verdict or disposed to vote against death (People v. Clark (2011) 52 Cal.4th 856, 902 [“Trial courts should be evenhandedin their questions to prospective jurors during the death-qualification portion ofthe voir dire....”], internal quotation marks and brackets omitted; People v. Lewis, supra, 43 Cal.4th at p. 488), the trial court applied one standard to defense challenges (unfavorable to the defense) and a different standard to prosecution challenges (favorable to the prosecution). The court’s application of this double-standard is demonstrated in detail in Mr. Sandoval’s openingbrief, “! Such challengesare often referred to as Witherspoon challenges or Witherspoon/ Witt challenges. To be precise, however, “Witherspoonis not a groundfor challenging any prospective juror. It is rather a limitation on the State’s powerto exclude[.]” (Adams v. Texas (1980) 448 U.S. 38, 47-48.) -76- where the standard applied by the court in refusing to grant three reverse- Witherspoon challenges made by the defense is contrasted with the standard applied by the court in granting the prosecution’s Witherspoon challenge to D.M. (AOB 307-317.) Mr. Sandoval’s showing ofthe trial court’s application ofthis double-standard is unrebutted by the Attorney General. B. The Record Discloses No Basisfor Finding D.M. Was Substantially Impaired. According to the Attorney General, the record contains substantial evidence that D.M.’s ability to fulfil his duties as a juror in a capital case was substantially impaired. (RB 103-104.) The Attorney General contendsthis is so, because “the majority” of D.M.’s answers to questions during voir dire concerninghis ability to makethe ultimate “life or death decision” were “equivocal.” (RB 103-104.) The Attorney General’s position is unsound. In the answers on his juror questionnaire and in the answershe gave to questions during voir dire, D.M. never said he would be unable to vote for the death penalty. Rather, he expressed uncertainty about whether he would ultimately be able to do so, and said he probably would not knowuntil the moment was upon him. When the question wasput to him in various forms, he gave various answers,including “yes”, “J think so”, and “T really don’t know until I face -77- that situation.” (15 RT 2993-2998; 49 Supp. I CT 14154, 14158.) Although he questioned whetherhe “should even havethe ability or powerto decidelife or death” (15 RT 2995), he steadfastly maintained he could and would listen to the evidence, follow the court’s instructions, and conscientiously arrive at an appropriate verdict. (15 RT 2993-2994, 2997-2998; 49 Supp. I CT 14151, 14145- 14146, 14159.) “The crucial inquiry is whether the venireman could follow the court’s instructions and obeyhis oath, notwithstanding his viewson capital punishment.” (Dutton v. Brown (10" Cir. 1987) 812, 595 (en banc), citing Adams v. Texas, supra, 448 U.S. 38.) The record contains no substantial evidence that D.M. was not able to fulfil these duties. To the contrary. D.M.indicated that he feels California should have the death penalty, that he supports the death penalty in most cases, and that he believes convicted murderers should be swiftly executed. (49 Supp. I CT 14154.) D.M.expressly indicated that he would not automatically vote for an LWOPsentencein this case, even though Mr. Sandoval was 18 at the time of the offense. (49 Supp. I CT 14155, 14158.) He has no conscientious objections to the death penalty. (49 Supp. I CT 14157.) Every time D.M. was asked whether he could follow the court’s instructions, listen to the evidence, and select an appropriate verdict, D.M. -78- respondedaffirmatively. (15 RT 2993-2994, 2997-2998; 49 Supp. I CT 14151, 14145-14146, 14159.) The burden of demonstrating substantial impairmentrests with the State (Morgan v. Illinois (1992) 504 U.S. 719, 733; Wainwirghtv. Witt, supra, 469 U.S. at p. 423.) However, the record in this case does not support a finding that the State satisfied its burden. To besure, the record reveals equivocation on D.M.’s part about whether he could ultimately impose a death sentence. But equivocation does not constitute substantial evidence of substantial impairment. (Peoplev. Riccardi (2012) 54 Cal.4th 758, 782 [substantial impairment not established merely because prospective juror stated, “‘I’m afraid I couldnotfeel right in imposing the death penalty on someone even thoughI feelit is [necessary]... under some circumstances.’”]; People v. Pearson, supra, 53 Cal.4th at p. 331 [mere indefiniteness and equivocation does not establish substantial impairment]; United States v. Chanthadara (10" Cir. 2000) 230 F.3d 1237, 1268-1273 [ Witherspoon/Witt violation where prospective juror was excusedafter giving answers on a questionnaire indicating she believed in the death penalty but vacillating between stating she would be able to impose a death sentence and stating she did not know whether she would b e able to do so]; Hance v. Zant (11" Cir. 1983) 696 F.2d 940, 955 [constitutional error occurred when two prospective -79- jurors were excluded because they vacillated between saying they did not believe they could vote to impose the death penalty and saying they might be ableto], overruled on other grounds by Brooks v. Kemp (11" Cir. 1985) 762 F.2d 1383, 1398-1399 (en banc).) No controlling precedent stands for the proposition that a prospective juror’s mere equivocation abouthisor her ability to return a death verdict constitutes substantial impairment. Yet, that is the rule the Attorney General urges this court to apply here. The law requires a showing that leaves“the definite impression that a prospective juror would be unableto faithfully and impartially apply the law.” (Wainwrightv. Witt, supra, 469 U.S. at p. 426.) Nothingin this record yields any such “definite impression.” To the contrary, the record yields an indefinite impression. The record also contains an example of another prospective juror sharing D.M.’s uncertain mindset concerning ultimate ability to vote to return a death verdict. The other prospective juror is a Deputy Attorney General who handles capital appeals. During voir dire, he saidit is “doubt[ful” that “anyone can fully appreciate his or her ability” to vote to impose the death penalty “until actually asked to” do so. (35 Supp. I 10326; AOB 298-299.) No Witherspoon/Witt -80- challenge was made againstthat prospective juror."* D.M. was no more subject to removal for cause than this deputy attorney general. They both simply observed the unremarkable circumstancethat they probably would not know whetherthey could vote to impose a death sentence until the arrival of the momentof truth. As the Supreme Court of the United States has recognized, prospective jurors “may not know howthey will react when faced with imposing the death sentence....” (Wainwright v. Witt, supra, 469 U.S. at p. 425.) Finally, Witherspoon challengescall for “determinations of demeanor and credibility that are peculiarly within the trial judge’s province.” (Uttecht v. Brown (2007) 551 U.S. 1, 7.) In this case, however, the trial court’s focus was misdirected. It was looking for equivocation as a ground for exclusion, rather than looking for substantial impairment. (4 RT 814.) Hence, the record and the findingsofthe trial court simply do not provide a substantial basis for upholding the trial court’s exclusion of D.M. /// IT] “ Defense counsel sought to remove the prospective juror for cause based upon an asserted conflict of interest. However, the trial court denied that request. (15 RT 2966-2967.) Defense counsel thereafter exercised a peremptory challenge to remove the prospective juror / deputy attorney general. (16 RT 3312; 25 Supp. I CT 7482, 7488.) -8]- XIV. THE TRIAL COURT SHOULD HAVE GRANTED A MISTRIAL WHENDETECTIVE DELFIN CALLED MR. SANDOVAL A “SON-OF-A-BITCH” FROM THE WITNESS STAND. While testifying in the penalty phaseretrial, Detective Delfin called Mr. Sandoval a “son of a bitch” in an outburst that the trial court characterized as “dramatic” and “emotional”. (19 RT 3835-3837.) Immediately after the outburst, the trial judge cleared the courtroom and had the jury step into the jury room. (19 RT 3836.) The environmentin the jury room was “very tense” and “emotional.” (19 RT 3867, 3870.) The Attorney General says it is “rather unsurprising” that Detective Delfin, while on the witness stand, called Mr. Sandoval a “son of a bitch”,” and that situation was not “so inherently prejudicial” as to warrant a mistrial. (RB 108.) With respect to the question of prejudice, the Attorney General does not discuss Parker v. Gladden (1966) 385 U.S. 363 (per curiam), which is discussed in Mr. Sandoval’s opening brief. (AOB 323.) The facts of Parker are comparable * Tn light of the suffering andlossoflife caused by Mr. Sandoval, the human emotion Det. Delfin experienced is understandable. However, that is not the issue in this appeal. The issue is the legal significance of the detective’s outburst and its impact on the fairness of the proceedings. “A fairtrial is required for every defendant, regardless of his apparent guilt or the magnitude of the crimes he may have committed.” (United States v. Ostrowsky (7" Cir. 1974) 501 F.2d 318, 324.) -82- to the instant case. In Parker, a bailiff said to one juror that the defendant was a “wicked fellow” and was guilty. The remark was madein the presence of other jurors. Thebailiff also made a remark to one juror that the Supreme Court would correct any errors. (Parker, supra, 385 U.S.at pp. 363-364.). As in the instant case, the State in Parker suggested that the accused did not suffer cognizable prejudice as a result of the bailiffs remarks. (/d. at p. 365.) The Supreme Court disagreed, explaining that the State’s contention “overlook[ed] the fact that the official character of the bailiff— as an officer of the court as well as the State — beyond question carrie[d] great weight with a jury....” (bid.) The Court held that “the unauthorized conductofthe bailiff involves such a probability that prejudice will result that it is deemed inherently lacking in due process[.]” (/bid., internal quotation marks omitted.) Further, the Court stated that “it would be blinking reality not to recognize the extreme prejudice inherent in such statements that reached at least three membersofthe jury and one alternate member.” (/bid., internal quotation marks omitted.) In the instant case, a// members ofthe jury heard Detective Delfin’s remark. And,as in Parker, where onejurortestified that she had been influenced by the /// /// -83- bailiffs remarks (ibid.),” in the instant case, jurorstestified in a subsequent juror misconduct investigation that they had been influenced by Detective Delfin’s outburst. (19 RT 3867, 3870.) Thus, the Attorney General’s treatment of the issue at hand is at odds with the manner in which the Supreme Court of the United States treated a comparable issue in Parker. Another case discussed in Mr. Sandoval’s opening brief but not mentioned in the Attorney General’s brief is Stockton v. Virginia (4" Cir. 1988) 852 F.2d 740. In that case, remarks analogous to those made in Parker and the instant case resulted in a grant of federal habeasrelief. The Attorney General suggests that three sentences from this court’s decision in People v. Cunningham (2001) 25 Cal.4th 926, support a conclusion that Mr. Sandoval did not suffer any cognizable prejudice from Detective Delfin’s outburst. (RB 108.) The followingis the language from Cunningham on which the Attorney Generalrelies: Defendant contends that the prosecutor improperly introduced a family photograph album of defendant into evidence and commented that defendant’s label on one photograph of himself, “We are “ The referenced juror in Parkertestified that “she might have been influenced withoutrealizing it.” (Parker v. Gladden, supra, 385 U.S.at pp. 369- 369 (dis. opn. of Harlan,J.).) -84- protecting one sick son-of-a-bitch,” was an accurate self-description. A timely objection and admonition would have cured any harm caused bythe prosecutor’s action in seeking to introduce this evidence and commentingin that fashion. [Citation.] In view of the admission of the album,the prosecutor’s argument was within the permissible range of comment. (People v. Thomas[(1992)] 2 Cal. 4th 489, 537.) (Cunningham, supra,at p. 1021.) The Attorney Generalalso cites a series of authorities that stand for the proposition that “[p]rosecutorial argument may include opprobriousepithets warranted by the evidence.” (People v. Garcia, supra, 52 Cal.4th at p. 759; RB 108-109.) “Where they are so supported,[this court has] condoned a wide range of epithets to describe the egregious nature of the defendant’s conduct.” (Jbid.) The Attorney General does not contend that the record supports a finding that Mr. Sandovalis a “son of a bitch.” And the epithet used by Detective Delfin did not describe the nature of Mr. Sandoval’s conduct; rather, the detective usedit 4S In Thomas, this court stated: “Defendant next contends that he was prejudiced by the prosecutor’suse of the epithets ‘mass murderer,rapist,’ ‘perverted murderouscancer,’ and ‘walking depraved cancer’ in referring to defendant during closing arguments. Strictly speaking, the former labelfit defendant, inasmuchas he had been convicted of rapes and two murders. The latter epithets are within the range of permissible comment regarding egregious conduct on defendant’s part. (People v. Sully (1991) 53 Cal.3d 1195, 1248-1249.) Moreover,in light of the evidence adducedin the longtrial of this case, they could not have carried such an emotional impact as to makeit likely the jury’s decision wasrooted in passion rather than evidence.” (Thomas, supra, at p. 537, parallel citations omitted.) -85- to describe Mr. Sandoval — the nature of Mr. Sandoval. Thus, Garcia and the decisions on whichis relies do not support the Attorney General’s position in this case. It is improperin the prosecution of persons charged with a crime for the representative of the state to apply offensive epithets to defendants or their witnesses, and to engage in vituperative characterizations of them. There is no reason, under any circumstances,at any time for a prosecuting attorney to be rude to a person ontrial; it is a mark of incompetencyto doso. (Green v. State (Fla. App. 1983) 427 So.2d 1036, 1038; accord, Walker v. State (Fla. App. 1998) 710 So.2d 1029 [““We reverse defendant’s convictions and remandfor a newtrial on the basis of the prosecutor’s comments. The prosecutor described the defendant as ‘repulsive’, and argued to the jury that he ‘has the face of a liar’ and that he treated his wife like a dog.”].) Thetrial court should have granted a mistrial following Detective Delfin’s emotional outburst from the witness stand. The remark wasinherently prejudicial. (Parker v. Gladden, supra, 385 U.S. at p. 365.) It dehumanized Mr. Sandoval. It prevented a fair and reliable penalty determination. Independently, and in conjunction with the other transgressions in Mr. Sandoval’s penalty-phaseretrial, this transgression warrantsrelief. //] -86- XV. THE PRESUMPTION OF PREJUDICE TRIGGERED BY THE JUROR MISCONDUCTIS UNREBUTTED. The Attorney General characterizes the gist of Mr. Sandoval’s juror misconductclaim as a claim that heis entitled to relief “because several jurors overheard twoofthe alternate jurors discussing the case.” (RB 110.) That characterization does not accurately represent the substance of Mr. Sandvoal’s claim. Mr. Sandoval’s juror misconduct claim is based on the evidence that jurors were discussing the case prior to its submission to them,jurors conducted pre- deliberation ballots, and/or one or more jurors read newspaper accounts regarding the case. (AOB 324-333.) At the conclusion of proceedings on Thursday, April 3, 2003, the trial court informed the parties that Juror No. 11 had reported to the court clerk that he had heard two male alternate jurors discussing the case in the jury room whenthe jury was on break that day. (19 RT 3854.) The discussion Juror No. 11 overheard took place whenthe jury was on break immediately after Detective Delfin’s outburst. (19 RT 3861-3862.) Atthe outset of proceedings on the following day, April 4, 2003, Juror No. 11 confirmed he had reported to the court clerk that two male alternate jurors had -87- “definitely” been talking about the case in the jury room. (19 RT 3858-3859.) Juror No. 11 stated that one of the alternate jurors had said, “I can’t believe this is happening. I think that it’s not even. The consensus is probably seventofive still. I don’t know whatthese people are thinking.” (19 RT 3859, 3885, italics added.) Juror No. 11 explained that the two male alternatejurors “were talking about who was votingfor this and who was votingfor that”, i.e., “who was gonna votefor this penalty and who was gonnavotefor that penalty.” (19 RT 3862, 3884,italics added.)** After hearing these remarks, Juror No. 11 told Juror No.7 that he neededto tell the clerk about what had just transpired. (19 RT 3861.) Juror No. 7 confirmed she had also heard two male alternate jurors “talking aboutthecase....” (19 RT 3867-3869.) Juror No. 12 heard the alternate jurors talking, but did not hear whatthey said. (19 RT 3874.) Alternate Juror No. 3 acknowledgedtalking “© The Attorney General says, “Juror No. 11 stated that the jurors were not discussing the facts of the case....” (RB 111.) The Attorney General’s assertion is belied by the record. Juror No. 11 reported the following to the court: “We were in the room, and twoofthe jurors were talking about the case and howit was going.” “... [T]hey were definitely talking about it.” “TI heard one ask the other, ‘Whatdid the officer say?’ And the response was the curse word.” “And they went on to say that, ‘I can’t believe this is happening. I think that it’s not even. The consensusis probably sevento five still. I don’t know what these people are thinking.’” (19 RT 3859.) “I know I heard, ‘[I]t’s seven to five.’ So they were talking about whowasvoting for this and who was voting forthat.” (19 RT 3862.) Juror No. 11 heard the information regarding the sevento five split in the Jury room,not from any other source. (19 RT 3884.) -88- to a fellow juror about Detective Delfin’s outburst. (19 RT 3875-3879.) Notwithstanding the foregoing, the Attorney General proclaimsthat “the alternate jurors were not ‘discussing’ the case.” (RB 115.) The Attorney General does not explain the basis for this proclamation. The Attorney General does not explain how Juror No. 7’s statement that the alternate jurors were “talking about the case” (19 RT 3867-3869), and Juror No. 11’s statements that he heard the alternates discussing the seven-to-five consensus and “who wasgonnavote for this penalty and who was gonnavote for that penalty” (19 RT 3859, 3862, 3884- 3885), are consistent with the notion that “the alternate jurors were not ‘discussing’ the case.” (RB 115.) Apparently, the Attorney General simply discounts these representations that Juror Nos. 7 and 11 madeto thetrial court. The Attorney General alsostates, “Here, no juror or alternate juror received any outside information about the case, ... or shared improper information with any other juror or alternate juror.” (RB 115.) However, as the trial court remarked after Juror No. 11’s testimony, the juror comments aboutit still being “seven to five” “reflect[ed] in [the court’s] mind that somebody hasread one ofthe newspaperarticles, because that information wasin one of the newspaperarticles the other day that the prior jury had hung sevento five.” (19 RT 3863.) Thetrial court noted the split in the prior penalty phase was sevento five, and that this was -89- “a viable reference to what happened before.” Specifically, the court noted these were “not just numbersourofthe air.” (19 RT 3888.) The court then inquired individually of Juror Nos. 1, 2, 3, 4, 5, 6, 8, 9, 10, and 12, and Alternate Juror No. 2 as to whether any of them had heard any discussionsin the jury room. (19 RT 3866, 3889-3895.) Juror Nos. 1, 2, 3, 5, 6, 8, 9, and 10, and Alternate Juror No. 2 said they did not hear any conversations. (19 RT 3866, 3889-3895.) Juror No. 4 heard some conversation, but did not recall what was said. (19 RT 3891-3892.) At the conclusion ofthe trial court’s inquiry ofthe jurors, troubling uncertainties were manifest. Juror No. 11’s report to the court concerning a “consensus[of] ... seven to five” signified that the jurors were casting pre- deliberation ballots and/or that jurors were reading newspaperarticles about the prior penalty phase, which endedin a seven-to-five deadlock. Thetrial court was correct that there were “not just numbersoutofthe air.” (19 RT 3888.) However, the trial court never got to the bottom of the matter. The upshotis that juror misconduct occurred. The misconduct consisted of juror discussions regarding the case, pre-deliberation balloting, and/or acquiring information about the case from extraneous sources. This misconductis presumptively prejudicial. (People v. McKinzie (2012) 54 Cal.4th 1302-1347; In -90- re Price (2011) 51 Cal.4th 547, 559; People v. Gamache (2010) 48 Cal.4th 347, 397.) “[T]he prosecution must rebut the presumption by demonstrating there is no substantial likelihood that any juror was improperly influenced to the defendant’s detriment.” (Gamache, supra, 48 Cal.4th at p. 397, internal quotation marks omitted.) Neither the arguments advanced by the Attorney General nor any evidence or argumentpresentedin thetrial court dispel the presumption of prejudice. Questions were left unresolved as to whether jurors engagedin pre- deliberation balloting and whether one or more of them acquired extrinsic information. Accordingly,the trial court should have granted Mr. Sandoval’s mistrial motion. Mr. Sandoval is now entitled to appellate relief on this basis. XVI. MR. SANDOVAL SUFFERED UNFAIR PREJUDICE WHEN THE PROSECUTOR, IN VIOLATION OF A TRIAL COURT RULING, PRESENTED TO THE JURY EVIDENCE OF UNCHARGED SHOOTINGS MR. SANDOVAL APPARENTLY PERPETRATED WITH THE MURDER WEAPON. The Attorney General acknowledgesthe trial court granted a defense motion to exclude evidence of Mr. Sandoval’s reference, in his confession, to shooting other people with the same weapon used in the murder of Detective Black. (RB 118.) The Attorney General also acknowledges the prosecutor presented the jury in the penalty phaseretrial with a transcript that quoted Ms. Sandoval’s comment -9]- about shooting other people. (RB 119.) Nevertheless, the Attorney General contends Mr. Sandoval hasforfeited the right to pursue this issue on appeal because “the record establishes that no objection was made on prosecutorial misconduct grounds.” (RB 120-121.) The Attorney General’s forfeiture argument is meritless. First of all, Mr. Sandoval’s trial counsel sought and obtained a ruling excluding the evidence in question. (9 RT 1844-1846.) When the prosecutor transgressed that ruling by presenting to the jury copies of transcripts containing the excluded evidence, the damage to Mr. Sandoval was done. Nothing short of a mistrial could have cured the damage. Furthermore, the general rule that claims are not preserved for review in the absence of a timely objection does not apply whenthe failure to object or request an admonition would have beenfutile. (People v. Thomas (2012) 54 Cal.4th 908, 937.) The evidence regarding Mr. Sandoval admitting that he had shot other people with the murder weapon,whichthetrial court had already ruled inadmissible, was so damningthat the jury could not possibly have been expected to disregard it, even thoughthetrial court instructed them not to considerit. (Bruton v. United States (1968) 391 U.S. 123, 129; 21 RT 4289.) Thetrial court’s recognition of the “highly prejudicial” nature of the shooting-other-people evidence wasthe very reason for its exclusionin thefirst instance. (2 RT 249- -92- 250; 9 RT 1844-1846.) Turning to the merits, the Attorney General cites People v. Davis (2009) 46 Cal.4th 539,” in an effort to support the proposition that the prosecutor’s presentation to the jury of the transcript containing the excluded evidence did not constitute misconduct. (RB 121-122.) In Davis, the prosecutorelicited evidence that the trial court had excludedin a pretrial order. However, the evidence “did not inculpate [the] defendant....” (Davis, supra, 46 Cal.4th at p. 613.) Thus, the situation in Davis is a far cry from the situation in the case at bar. Whereas the order excluding evidence in Davis was breached with innocuous, non-inculpatory evidence, the order excluding evidence in the instant case was breached with damning evidence of a confession concerning uncharged shootings perpetrated by Mr. Sandoval with the very same gun usedto kill Detective Black. With respect to the improper presentation of this evidenceto the jury, the Attorney General posits as “[m]ost important[],” the circumstancethat the prosecutor accidentally allowed the jury to receive the evidence. (RB 122.) However, the intent of the prosecutoris of limited significance. As noted in Mr. Sandoval’s openingbrief, this court has explainedthat “[t]he focus of the inquiry *’ The Attorney General mistakenly cites Davis as appearing in volume 45 of the 4" Series of the Official California Reports. (RB 121.) It actually appears in volume46. -93- is on the effect of the prosecutor’s action on the defendant.” (People v. Hamilton (2009) 45 Cal.4th 863, 920; AOB 335.) The damning effect of uncharged evidence that Mr. Sandoval had admitted shooting other people with the murder weaponis simply undeniable. Having successfully fought to keep this devastating evidence from the jury, the failure of trial counsel to move for a mistrial once the evidence was mistakenly presented to the jury is inexplicable and necessarily ineffective. (AOB 340-341.) Thetrial court would have been constrained to grant a mistrial motion. Regardless of how blameis now allocated for the evidence getting to the jury, Mr. Sandovalis entitled to appellate relief. The jury’s receipt of the evidence wasirreparably prejudicial to Mr. Sandoval in the penalty phaseretrial. XVII. THE PROSECUTOR COMMITTED PREJUDICIAL MISCONDUCTIN HIS ARGUMENTTO THE JURY. The prosecutor arguedto the jury that Mr. Sandovalhadhis hair styled in a particular mannerduringtrial in order to “deceive” the jury, and that he would changehis hair style shortly after the jury’s verdict. (23 RT 4605-4606, 4618, 4621.) The prosecutor also arguedto the jury that the defense attorneys would present a series of bogus, pat arguments during their closing remarks (23 RT 4608- -94- 4611), even though the same prosecutor and same defense attorneys handled Mr. Sandoval’s first trial, and none of those arguments had been presented. By making these baseless, extra-record argumentsto the jury, the prosecutor committed prejudicial misconduct. (AOB 342-351.) Mr. Sandoval did not testify, and his credibility was not at issue, except insofar as the prosecution relied on his credibility in connection with his confession. Under these circumstances, it was misconduct for the prosecutorto accuse Mr. Sandovalof lying to the jury. (AOB 349; Floyd v. Meachum (2d Cir. 1990) 907 F.2d 347, 354-355.) In arguing against a finding of prosecutorial misconduct on this point (RB 129-131), the Attorney General ignores the authorities cited in Mr. Sandoval’s opening brief, which demonstrate thatit is misconductfor a prosecutor to accuse a non-testifying defendant of lying to the jury. The prosecutor’s improper remarksoccurredin a retrial. He forecasted the defense attorneys were going to makea series of specific, specious arguments. However,the defense attorneys had not made those arguments in the originaltrial. The prosecutor, whohadalso participated in that originaltrial, was obviously aware ofthat fact. Under these circumstances, it was improperfor the prosecutor to argue to the jury that the defense attorneys were going to make argumentsto the -95- jury that the prosecutor characterized as “ridiculous.” (23 RT 4610-4611.) In attempting to justify the prosecutor’s conduct, the Attorney General ignores that the prosecutor forecasted these “ridiculous” defense argumentsin retrial, following an original trial in which the “ridiculous” arguments had not been presented. (RB 131-132.) Asnoted in Mr. Sandoval’s opening brief, the prosecutor improperly portrayed Mr. Sandoval and his counsel as a team out to deceive the jury by means of false appearance and insincere ploys. This portrayal was not based on any evidence. However, the portrayal was damning. It wove in with thetrial court’s stern admonition to the jurors that they were “not allowed to accept” defense counsel’s description ofthe actual effect of imposition of an LWOPsentence in this case. (23 RT 4678-4679.) Thetrial court and the prosecutor portrayed the defense team as unbelievable and unworthyoftrust. /// /// //1 -96- XVII. MR. SANDOVAL’S CONSTITUTIONAL RIGHTS WERE PREJUDICIALLY VIOLATED WHEN THE PROSECUTOR GAVE AN AUDIO-VISUAL PRESENTATION FEATURING INSPIRATIONAL MUSIC, DEPICTING DETECTIVE BLACKIN HIS INFANCY AND EARLY CHILDHOOD, DISPLAYING DETECTIVE BLACK’S FLAG-DRAPED COFFIN, AND WHICH ULTIMATELY BROUGHTFIVE JURORS TO TEARS. The audio-visual presentation the prosecutor gave to the jury during his argumentin Mr. Sandoval’s penalty phaseretrial was emotional. It brought five OFthe jurors to tears. (23 RT 4640; 6 CT 1506.) It was akin to a memorial service for Detective Black. It included photosof his flag-draped coffin at a community memorial service attended by thousandsof individuals. (RB 133; 1/28/09 RT 2-3.) It included photos of Detective Black during his infancy and childhood years. (1/28/09 RT 2-3.) It included emotional, inspirational music.” The Attorney General contendsthat presentation of the audio-visual montage to the jury was proper because it was only about six minutes long and was “factual” in nature. (RB 135-136.) However, the disc in the record is the ‘8 As the Attorney Generalnotes, the audio visual “presentation is part of the record on appeal.” (RB 133, fn. 23; 1/28/09 RT 2-3.) The audio andvisual components of the presentation were originally on two separate discs — the audio on onedisc and the visual on another. (1/28/09 RT 2-3.) After the trial, the prosecutor combinedthe audio and visual components on a single disc. The prosecutor, whois now a judge, uses the presentation in seminars. (1/28/09 RT 2- 3.) -97- prosecutor’s after-the-fact recreation of the presentation — the prosecutor’s after- the-fact melding onto one disc of a presentation that had originally been set forth on two separate discs. (1/28/09 RT 2-3; 1 Supp. V CT 238.) The prosecutor’sre- creation does not depict exactly what was presented to the jury. The video componentofthe presentation was in PowerPoint® format. (23 RT 4737-4738.) The video componentofthe presentation was a “court exhibit.” (23 RT 4738.) The Attorney General characterizes the music that accompanied the visual componentofthe presentation as “classical.” (RB 135.) A portion of the musical accompaniment was from the album Freedom,by the artist Michael W. Smith. (23 RT 4738.)At Mr. Smith’s own website, the album is described as a “life soundtrack,” a “full instrumental album”, and “an intimate and inspiring glimpse at the spirit of one of Christian music’s most loved musicians.”*’ The music comprising the album is accurately described as inspirational, rather than ” See <>. During a court proceeding on January 12, 2004, Mr. Sandoval’s trial counsel submitted a copy of the Freedom CD to the court to “complete the record.” The minute order for that proceeding notes that “songs 1 and 3” from the album were played for the jury. (1 Supp. IV CT 53.) And, in a proceeding on January 26, 2004, the court marked the CD as court’s exhibit ZZZ. (1 Supp. IV CT 54; 1 Supp. V CT 109.) °° See <>. -98- classical.”! The prosecutor noted that the audio portion of the presentation was “run separately” from the video portion of the presentation. The defense described the musical accompanimentto the portion of the presentation depicting Mr. Sandoval as different from the portion accompanying the depiction of Detective Black. The music during the Sandoval portion of the presentation was “somber” and “heav[y]....” (23 RT 4699-4700.) Neither the court nor the prosecutor voiced any disagreement with this description. The following images were depicted in the portion of the presentation concerning Detective Black: e Detective Black as an infant. e Detective Black as a toddler. e Detective Black as an elementary school student. e Detective Black as a Boy Scout. e Detective Black as a boy, celebrating Christmas with his family. e Detective Black as an adolescent. e Detective Black at his high school graduation. >! Someofthe tracks of the album can be heard on YouTube: <>; <>. -99- /// /// Detective Black as a Marine. Detective Black as a police officer. Detective Black as a groomsmanata friend’s wedding. Detective Black dead on a hospital gurney, with blood soaked clothing. A close up shot of a gunshot woundto Detective Black’s head. Detective Black’s flag-draped coffin at his memorial service in Long Beach. Elaborate photographic details of the memorial service, including a man in a kilt playing bagpipes, an armytank, a gun salute, a multitude of United States and California flags, and dozensoffloral arrangements. A breathtaking photograph of thousands of uniformed attendeesat the memorialservice. A photograph of a Los Angeles area freeway shut down andfilled with nothing but hundreds of the marked police vehicles of the police officers attending the memorial service. A large electronic billboard reading “Godspeed Daryle” under an enormousUnited States Flag. Onlookers saluting. Attendees crying and consoling one another. -100- Defense counsel objected to the presentation during the original penalty phasetrial,°’ characterizing the presentation as a “professional grade audio visual show with music” and something “like a Hollywood production... designed to inflamethe passionsofthe jurors.” As an alternative to excluding the entire presentation, defense counsel requested exclusion of the music. (13 RT 2635- 2636.) The defense renewedits objection in the penalty phaseretrial, and noted that, in a then-recent decision, the Texas Court of Criminal Appeals hadset aside a death sentence based on a similar audio-visual presentation. (23 RT 4587-4588.) In the retrial, the defense characterizedit as a “high-tech appeal to emotion.” (23 RT 4699.) Thetrial court allowed the prosecutor to give his audio-visual presentation in full. (23 RT 4587-4588, 4637-4639.) The presentation was improper. It was emotional. It was prejudicial. It was not the type of presentation that had any properplace in a legal proceeding involving a life or death determination. The presentation violated Mr. Sandoval’s constitutional rights. Its constitutional infirmities were many: *? The prosecutorstated that the audio-visual presentation he gave in the original penalty-phase trial is the same as the one he gavein the penalty-phase retrial. (23 RT 4738.) -101- In the retrial, the prosecutor informedthe jury that the musical accompanimenthad been selected by members of Detective Black’s family. The defense objectedto the prosecutor sharing this information withthe jury. (23 RT 4637.) “The use of music, an inherently emotional form of expression, in victim impact evidence, has been a concern to a numberof courts.” (People v. Verdugo (2010) 50 Cal.4th 263, 313 (opn. of Moreno,J., concurring in the judgment), citing United States v. Sampson (D.Mass. 2004) 335 F.Supp.2d 166, 191-193, and Salazar v. State (Tex.Crim.App. 2002) 90 S.W.3d 330.) Music rarely if ever has informational content that can contribute to a capital jury’s sober andrational decision making.Its purpose and effect, generally, is to evoke an emotional response from the jury. Such emotional evocation, while suitable for a memorial tribute to the victim, is wholly inappropriate at the penalty phase ofa capitaltrial, where the purposeis not to honorthe victim but to decide whether the defendant should receive a death sentence. ([bid.) A musical accompanimentto victim impact evidence has “nothing to do with defendant’s character, culpability, or the circumstances of the offense, which are supposedto be the jury’s sole concern during the penalty phase.” (/bid.) /// /// -102- The majority of courts allowing [victim impact evidence] to include music have been wrongly applying Payne’s test'?! and underestimating music’s effect on emotion. At the very least, music has a prejudicial effect on emotion[.] ... [Studies suggest that music even causes emotion. Studies done with mock-juries show that emotions affect decision-making. This means that using music during {victim impact evidence] is, by definition, undoubtedly prejudicial — it provides a tendency for jurors to make a decision based on something other than reason. The persuasive relationship between music and emotion establishes a high risk of prejudice and leaves no way to confirm whethera decision was reached through reason or emotion. This is enough to render the sentencing fundamentally unfair. (E. Schroeder, Comment: Sounds ofPrejudice: Background Music During Victim Impact Statements (2010) 58 Kan. L.Rev. 473, 504-505, fn. omitted.) In traditional documentaries, music is used to accentuate and underscore points. It provides an arch of energy that pushes through scenes and shots — it creates a mood. It picks up on the tempo,the speed of the cuts, the speed of the dialogue, the rhythm the movie puts the viewer in. Music has been usedto serve the same purposein victim impact videos. A musical soundtrack may even substitute for a spoken narration. (R. Austin, Documentation, Documentary, and the Law: What Should Be Made of Victim Impact Videos? (2010) 31 Cardozo L. Rev. 979, 993, fns. and internal quotation marks and brackets omitted.) “Depending onthe listener’s perspective, music colors or taints the visual material that it accompanies by shaping that material’s interpretation.” (/d. at p. °3- Payne v. Tennessee (1991) 501 U.S. 808. -103- 994.) “The choice of music used in victim impact videos is mostly employed to enhance or exaggerate the impact of the video.” (Ibid.) Victim impact videos, particularly those that originated as memorial tributes, have a numberof features that negate or limit their probative value in sentencing hearings. Rather than presenting evidence of the victims’ individuality and the impactof their death on survivors, the videosfulfill the obligations of those survivors to remember and honortheir loved ones. They tend to be idealistic in their treatment of the victim andidyllic in their treatment of family life. The narration tends to convey the optimism that accompaniesthe sharing of photographs, movies, and videos in the homesetting. Moreover, victim impact videos tend to have musical soundtracksthat are appropriate for memorial tributes, but not for evidencein a capital proceeding; the music is sentimental and may havelittle to do with the tastes or behavior of the victim. Although victim impact videos are intendedto offset the impact of mitigation evidence introduced by the defendant, the comparison is misguided. Unlike the prosecution and the proponents of victim impact videos, the defensehaslittle or no incentive to idealize family life or to hide family secrets. (Ud. at p. 1003.) -“TCjourts have expressed disfavor for victim-impact videosthat are too lengthy, depict childhood pictures of adult victims, or are accompanied by evocative music.” (State v. Hess (2011) 207 N.J. 123, 157 [23 A.3d 373, 393].) In Hess, the New Jersey Supreme Court found that portions of a victim impact video, which included “music and... photographs of the victim’s childhood and ofhis tombstone”did “not project anything meaningful about the victim's life asit related to his family and othersat the time of his death.” (/d. at p. 159.) The court -104- held that those aspects of the video “should have been redacted ... because they contain little to no probative value, but instead have the great capacity to unduly arouse or inflame emotions.” (/bid.) Byfailing to meaningfully evaluate defendants’ claims against victim impact videos, courts set a precedent that victim impact videos are generally admissible and ignore the evidence's unique capacity to emotionally charge the jury and lead to an unconstitutional application of the death penalty. Thus, the time has comefor the Supreme Court to provide the courts across the country with a clear rule prohibiting the admission of victim impact videotapesat a capital penaltytrial. (A. Harden, Note: Drawing the Line at Pushing ‘Play’: Barring Video Montages as Victim Impact Evidence at Capital Sentencing Trials (2011) 99 Ky. L.J. 845, 871, internal quotation marks and brackets omitted.) In the instant case, the audio-visual presentation improperly played on the emotionsofthe jury. It literally brought almost half of the jurors to tears. (23 RT 4640; 6 CT 1506.) It involved emotional music selected by Detective Black’s family. (23 RT 4637.) It depicted Detective Black during his infancy andearly childhood. It depicted his flag-draped coffin at a memorial service. As the New Jersey Supreme Court recognized, such matters have “little to no probative value, but instead havethe great capacity to unduly arouse or inflame emotions.” (State v. Hess, supra, 23 A.3d at p. 393.) -105- In light of this improperly emotional presentation, and in light of the other prejudicial errors that occurred in Mr. Sandoval’s penalty-phaseretrial, the death judgmentcannotstand. XIX. THE TRIAL COURT IMPERMISSIBLY UNDERCUT MR. SANDOVAL’S CONSTITUTIONAL RIGHT TO INFORM THE JURY DURING ARGUMENTTHAT IMPOSITION OF AN LWOP SENTENCE WOULD RESULT IN MR. SANDOVAL NEVER GETTING OUTOF PRISON. In Mr. Sandoval’s original penalty phase, his counsel informed the jury during argument that an LWOPsentence would result in Mr. Sandoval spending the rest of his life in prison. (13 RT 2647.) The prosecutor did not object to counsel’s comment. The jury deadlocked, with five jurors determining LWOP was the appropriate punishment. (13 RT 2725; 5 CT 1312.) In Mr. Sandoval’s penalty phaseretrial, when his counsel informed the new jury that an LWOPsentence would result in Mr. Sandoval spendingtherest of his life in prison, the prosecutor objected. (23 RT 4677-4678.) The court told the jury it was “not allowed to accept the statementthat life without the possibility of parole means exactly whatit is[,]” but rather that the jury was only to “assume” an LWOPsentence would result in Mr. Sandoval spendingtherest ofhislife in prison. (23 RT 4678.) The jury returned a death verdict. (23 RT 4716-4717; 6 -106- CT 1500, 1502-1503.) The differing treatment of counsel’s remarks concerning the effect of an LWOPsentencein the two penalty phase proceedings, together with the differing outcomesofthe two proceedings, starkly reveals the impact of the trial court’s refusal to simply allow counsel to argue that LWOP means LWOPin the penalty phaseretrial. A. Mr. SandovalIs Entitled to Appellate Review ofHis Assignment of Error Concerning the Trial Court’s Refusal to Let Him Argue that LWOP Means LWOP. The Attorney General advancesa strained argument that Mr. Sandoval’s assignmentof error concerningthetrial court’s refusal to allow him to argue LWOP means LWOPis not preserved for review. (RB 136, 138.) Specifically, the Attorney General claims Mr. Sandoval’s trial counsel forfeited the claim by requestingthetrial court to instruct the jury as it did. (RB 138.) However, the record plainly reveals the trial court thwarted counsel’s effort to argue to the jury that LWOP means LWOP. Counsel argued that if the jury imposed an LWOP sentence, Mr. Sandoval would “neverget out.” The prosecutor objected. (23 RT 4677.) At sidebar, the court said, “I think the correct statement of the law is that you are to assumethat it meansthat.” The prosecutor said counsel’s remark was a “lie[,]” because it did not account for the gubernatorial commutation power. -107- Defense counsel asked for the court to admonish the jury. The court then instructed the jury that it was “to assumelife without the possibility of parole meanslife without the possibility of parole.” Counsel then argued the jury was “to assumethat that’s what it means because that’s what it does mean. It meansthat [Mr. Sandoval] will spendtherest of his life in ... prison.” But, the court then interjected, “The jury is not allowed to accept the statement that life without the possibility of parole means exactly whatit is. You’re to assumethat that’s whatit means.” (23 RT 4678.) Thus, counsel repeatedly attempted to advance an argumenthe waslawfully entitled to present to the jury. However, the court undermined the argument. In no sense has Mr. Sandoval forfeited his assignment of error concerning the court’s refusal to allow him to argue LWOP means LWOP. Mr. Sandoval wasnot required to take an exception to the trial court’s improper instruction and interference with closing argument. (Pen. Code, § 1259.) Heis entitled to appellate review ofthe error, which affected his substantial rights. (People v. Thomas (2011) 52 Cal.4th 336, 361.) /// /// //] -108- B. A Capital Defendant Has a Constitutional Right to Inform the Jury During Argument that LWOP Means LWOP. The Supreme Court’s decision in Simmons v. South Carolina (1994) 512 U.S. 154, established that when the prosecution in a capital case puts the defendant’s future dangerousnessat issue, the defendant has a due processright to inform the sentencing jury an LWOPsentence will result in him never getting out of prison. (/d. at pp. 168-169 (plur. opn.); id. at p. 172 (conc. opn. of Souter, J.); id. at pp. 177-178 (opn. of O’Connor, J., concurring in the judgment).) In Kelly v. South Carolina (2002) 534 U.S. 246, the Court recognized that evidence in virtually all capital cases will provide a basis for inferring future dangerousness. (Id. at p. 254,fn. 4.)°* Hence, per Simmons and Kelly, a capital defendantis virtually always entitled, as a matter of due process, to inform a sentencing jury he/she will never get out of prison if he/she is sentencedto life without the possibility of parole. In his dissenting opinion in Kelly v. South Carolina, supra, 534 U.S. 246, Justice Thomascharacterized the holding of the Court as a “sweepingrule[.]” (/d. at p. 262.) ** In his dissenting opinion in Kelly, Chief Justice Rehnquist expressed agreementwith this point, noting: “It is difficult to envision a capital sentencing hearing where the State presents no evidence from which a juror might make such an inference.” (Kelly, supra, at p. 261.) -109- Although Simmons and Kelly are discussed extensively in Mr. Sandoval’s opening brief (AOB 362-365, 369), they are not mentionedin the Attorney General’s brief. The Eighth Amendment “requires provision of ‘accurate sentencing information [as] an indispensable prerequisite to a reasoned determination of whether a defendantshall live or die[.]’” (Simmons v. South Carolina, 512 U.S.at p. 172 (conc. opn. of Souter, J.), quoting Gregg v. Georgia (1976) 428 U.S. 153 (joint opinion of Stewart, Powell, and Stevens, JJ.) It “invalidates ‘procedural rules that tend to diminish the reliability of the sentencing determination[.]” (/bid., quoting Beck v. Alabama (1980) 447 U.S. 625, 638.) Simmons and Kelly enforce this constitutional safeguard by allowing capital defendants to inform juries that LWOP means LWOP. (People v. Duenas (2012) 55 Cal.4th 1, 28 [recognizing the right, under Simmons and Kelly, to “adequately inform[] the jury that a defendant sentenced to life imprisonment withoutpossibility of paroleis ineligible for parole”); People v. Ledesma (2006) 39 Cal.4th 641, 666 [“Instructing jurors to take literally the words‘life without possibility of parole’ serve[s] to impress upon them the seriousnessoftheir decision and to overcome the common misperception that all life prisoners may eventually be paroled.”], internal quotation marksin the original.) -110- Furthermore, as discussed in Mr. Sandoval’s opening brief, this court explained in People v. Kipp (1998) 18 Cal.4th 349,that instructional language directing a jury to “assume” and LWOPsentence will “inexorably be carried out[,]” involves “qualified language [that] may unnecessarily raise questions in the jurors’ minds.” (/d. at p. 378,italics in the original; AOB 366.) Such an instruction need only be given “if there is a reason to believe the jury may have some concers or misunderstanding in this regard.” (Kipp, supra, at p. 378.) Kipp is not cited in the Attorney General’s brief. Despite the foregoing precedent, the Attorney General arguesthetrial court’s interference with defense counsel’s argument was proper. (RB 136, 139- 140.) In support of this position, the Attorney General cites four cases: People v. Abel, supra, 53 Cal.4th 891, People v. Musselwhite (1998) 17 Cal.4th 1216, People v. Gordon (1990) 50 Cal.3d 1223,°° and People v. Thompson (1988) 45 Cal.3d 86. (RB 139.) However, none of these cases support the Attorney General’s position. Preliminarily, three of the cited decisions were handed down before Kelly, and two of them were handed down before Simmons. Moreover, in noneofthese cases did this court hold that a trial court may prevent a capital °° Gordon was disapproved on other grounds in People v. Edwards (1991) 54 Cal.3d 787, 835.) -111- defendant from arguing LWOP means LWOP.In Abel, the trial court commented during voir dire that it could not guarantee the jury’s ultimate sentence would be carried out (Abel, supra, at p. 921), but there was no claim raised concerning any interference by the court with argument presented by counsel. In Musselwhite, which was decidedin the interval between the issuance of the Simmons and Kelly decisions, this court distinguished the case from Simmons, because “the prosecution did not argue that [the] defendant’s future dangerousness warranted the death penalty[,]” and this court stressed that defense counsel had argued to the jury, without interference from thetrial court, “that [the] defendant ‘will always be behind prison walls.’” (Musselwhite, supra, at p. 1271.) In Gordon, which was decided before Simmons and Kelly, this court held the defendant wasnotentitled to an instruction that an LWOPsentence would inexorably be carried out (Gordon, supra, at p. 1277), but there was no claim raised concerning any interference by the trial court with argument presented by counsel. Finally, in Thompson, which wasalso decided before Simmons and Kelly, this court reached the samedecision it did in Gordon undersimilar circumstances. (Thompson,supra, at pp. 129-131.) Thus, the Attorney General offers no meaningful authority in support ofits position that the trial court properly interfered with Mr. Sandoval’s argumentto the jury that LWOP means LWOP. Thereis no such authority. To the contrary, -112- binding precedent from the Supreme Court of the United States and this court establish that a capital defendant like Mr. Sandovalis entitled to argue to the jury that LWOP means LWOP. C. The Prejudicial Effect ofthe Constitutional Error is Manifest. Asdiscussed in detail in Mr. Sandoval’s openingbrief, the trial court’s erroneousinterference with Mr. Sandoval’s argument concerning the meaning of an LWOPsentence wasprejudicial. (AOB 373-375.) The Attorney General’s brief contains no rejoinder to Mr. Sandoval’s showing concerning the prejudicial impact of this error. This omissionistelling. First, because of the constitutional magnitude ofthe error, the Attorney General bears the burden of seeking to prove harmlessness. (Chapmanv. California (1967) 386 U.S. 18, 24.) The Attorney General does not even attempt to shoulderthis burden. Second,the fact that the original jury deadlocked 7-5 on the question of penalty militates against a finding of harmlessness. (People v. Mullens (2004) 119 Cal.App.4th 648, 669 [stressing prior hungjury in rejecting the State’s harmlessness contention]; United States v. Paguio (9" Cir. 1997) 114 F.3d 928, 935 [“We cannot characterize the error as harmless, because the hungjury at the first trial persuadesus that the case wasclose....”].) -113- Third, the circumstancethatthe trial court did not erroneously interfere with counsel’s argument concerning the meaning of LWOPintheoriginal penalty phase weighsheavily against a finding of harmlessness with respectto the error in the penalty phaseretrial, in light of the different outcomes of the two penalty phases. Fourth, as discussed in Mr. Sandoval’s openingbrief, juries otherwise inclined to select life over death often opt for the latter if they cometo believe that an LWOPsentencewill result in eventual release. (AOB 374.) The foregoing circumstances, together with Mr. Sandoval’s youth at the time of the offense and the other errors during the penalty phaseretrial, preclude a finding of harmlessness. XX. THE DEATH JUDGMENTIN THIS CASE MUSTBE SET ASIDE BECAUSE OF THE TRIAL COURT’S ERRONEOUS FAILURE TO GRANT THE DEFENSE REQUEST TO INSTRUCT THE JURORS THAT SOME OF THEM COULD CONSIDER THE EFFECT OF A MITIGATING CIRCUMSTANCEEVENIF THEY DID NOT ALL AGREE THAT THE MITIGATING CIRCUMSTANCE HAD BEEN ESTABLISHED. Thetrial court instructed the jury: “In order to make a determination as to the penalty, all the 12 juror must agree.” (23 RT 4702.) //1/ -114- Mr. Sandoval’s trial attorneys requested specific instructional language that would have prevented the possibility of any individual jurors interpreting the court’s instructions as precluding them from considering mitigating circumstances that were not agreed to by all twelve membersofthe jury. (6 CT 1489; 23 RT 4583-4585.) The court should have given the requested instruction. It accurately states the law. The court erred by not giving the instruction. (23 RT 4583-4585.) With respect to factor (b) aggravating evidence, the court specifically instructed the jurors that they did not need to unanimously agree on such evidence in order for individual jurors to consider the evidenceas a factor in aggravation. (23 RT 4598-4599.) However, as noted, the court specifically refused the defense request for a comparable non-unanimity instruction concerning mitigating evidence. (23 RT 4583-4585.) Thus, pursuant to the maxim expressio unius est exclusio alterius, the court’s charge to the jury suggested juror unanimity was a prerequisite to consideration of any mitigating evidence.”*” °° People v. Aranda (2012) 55 Cal.4th 342, 387 (conc. & dis. opn. of Kennard, J.) [applying the maxim expressio unius est exclusio alterius to interpret instructional language]. °7 As noted in Mr. Sandoval’s openingbrief, this court has specifically held that a trial court may properly instruct a jury that unanimity is not required for individual jurors to consider aggravating evidence. (AOB 379,fn. 198, citing People v. Jennings (1988) 46 Cal.3d 963, 988.) That rule is the corollary of the rule pursuant to which defense counsel unsuccessfully soughtto havethetrial -115- “Tf ... jurors believe that they must be unanimousin the decision about any specific mitigating factor, individual jurors may very well fail to consider mitigating factors that they would have considered had they been awarethat unanimity was not required.” (J. Luginbuhl & J. Howe, The Capital Jury Project: Discretion in Capital Sentencing Instructions: Guided or Misguided? (1995) 70 Ind. L.J. 1161, 1165.) If “even one” memberofajury believes, based onthetrial court’s instructions, that he/she is barred from considering a mitigating circumstance because other jurors do not agree with him/herthat the circumstance exists andis mitigating, “the Constitution forbids imposition of the death penalty” imposed by such a jury. (Smith v. Spisak (2010) 130 S.Ct. 676, 681-682,italics in the original, citing Mills v. Maryland (1988) 486 U.S. 367, 380, 384, and McKoy v. North Carolina (1990) 494 U.S. 433, 442-443; accord, Abu-Jamal v. Secretary, Pennsylvania Department ofCorrections (3d Cir. 2011) 643 F.3d 370, 375 [“the Constitution proscribes imposition of the death penalty if members of the jury could reasonably belief they are precluded [by the trial court’s instructions] from court instruct the jurors in this case. Althoughthetrial court instructed the jury in this case concerning the lack of any need for unanimity concerning aggravating evidence,it did not instruct the jury concerning the lack of any need for unanimity concerning mitigating evidence. The lack of evenhandednessonthis pointis manifest. -116- considering mitigating evidence unless the jury unanimously agreesthe mitigating circumstance has been provento exist”].)™® Juror misperception that mitigating circumstances can only be considered if found unanimously violates the Constitution by “allow[ing] a holdout juror to preventthe other jurors from considering mitigating evidence.” (McKoy v. North Carolina, supra, 494 U.S.at p. 438.) “In fact, as Mills and McKoy hold, any requirementthat mitigating factors must be found unanimously is incoherent.” (Davis v. Mitchell (6" Cir. 2003) 318 F.3d 682, 688.) Thus, in order for Eighth Amendmentlaw on mitigating factors to be coherent and capable ofjudicial administration without serious confusion, a capital jury must understandthat, in the words of the Federal Death Penalty Act, “a finding with respect to a mitigating factor may be made by one or more membersofthe jury.” (Ibid.) //T/ °§ “Tn capital cases, ‘the sentencer’ maynot... be precluded from considering any mitigating evidence.” (Hitchcok v. Dugger (1987) 481 U.S. 393, 394.) °° “1A] death sentence based upon a verdict by 11 jurors who would have relied on a given mitigating circumstance to spare a defendant’s life, and a single holdout whoblocked them from doing so, would surely be an egregiousfailure to express the public conscience accurately.” (Beard v. Banks (2004) 542 U.S. 406, 424 (dis. opn. of Souter, J.); accord, id. at p. 420 (dis. opn. of Stevens, J.), id. at p. 419 (Opn. of the Court [“Imposition of the death penalty in these circumstances... would be the heightof arbitrariness.”], internal quotation marks omitted.) -117- Therule the Court set forth in Mills is based on two well-established principles. First, the Constitution forbids imposition of the death penalty if the sentencing judge or jury is precluded from considering, as a mitigating factor, any aspect of a defendant’s character or record and any ofthe circumstances of the offense that the defendant proffers as a basis for a sentence less than death. [Citations.] Second, the sentencing judge or jury may not refuse to consider or be precluded from considering "any relevant mitigating evidence. [Citations.] (Smith v. Spisak, supra, 130 S.Ct. at pp. 681-682, internal quotation marks omitted.) The Attorney General claimsthat the trial court did not err by declining the instruction requested by the defense, because, according to the Attorney General, it would have been redundant. The Attorney General contendsthe principle in question wasadequately conveyed byother instructions given bythetrial court, including CALJIC No. 8.87. (RB 140.) Noneofthe authorities cited by the Attorney General support the Attorney General’s position on the facts of the instant case. Indeed, in none ofthe cases cited by the Attorney Generalis there any indication that jurors were instructed in the mannerthe jurors in the instant case were instructed. Specifically, in the cases cited by the Attorney General, there is no indication jurors were instructed they -118- did not need to unanimously agree on aggravating evidence.” In the instant case, however, because the jurors were specifically instructed unanimity was unnecessary with respect to aggravating evidence, the lack of any such non- unanimity instruction concerning mitigating evidence at least gave rise to a substantial risk that one or more jurors were left with the impression that unanimity was a prerequisite to consideration of mitigating evidence. In Mills, the Supreme Court acknowledgedthat a constitutional “construction of the jury instructions and verdict form [was] plausible,” (Mills, supra, 486 U.S. at p. 377), but remanded for a new penalty phase becausethere was“at least a substantial risk that the jury was misinformed,” (id. at p. 381), and had interpretedits instructions to “preclude consideration of mitigating circumstances not found unanimously.” (Abu-Jamal, supra, 643 F.3d at p. 365, citing Mills, supra, at p. 384.) For the reasons discussed above,there is a substantial risk one or more of the jurors in this case mistakenly believed unanimity wasa prerequisite to consideration of mitigating evidence. In Mr. Sandoval’s penalty retrial, jurors were instructed a) to choose between the “two penalties” of death and LWOP,b) to “consider, take into 6° The Attorney General cites People v. Lee (2011) 51 Cal.4th 620, 655, People v. Bunyard (2009) 45 Cal.4th 836, 858, and People v. Weaver (2001) 26 Cal.4th 876, 988. (RB 141.) -119- account|,] and be guided bythe applicable factors of aggravating and mitigating circumstances”, and c) that “[iJn order to make a determinationasto the penalty, all twelve jurors must agree.” (23 RT 4599-4600; 6 CT 1472-1473.) Less than a third ofjurors understand that mitigating factors need only be proved tothe juror's personal satisfaction. The great majority ofjurors — in excess of sixty percent in both life and death cases — erroneously believe that jurors must agree unanimously for a mitigating circumstance to support a vote against death. (T. Eisenberg & M. Wells, Deadly Confusion: Juror Instructions in Capital Cases (1993) 79 Cornell L. Rev. 1, 11.) The jury in Mr. Sandoval’s penalty phaseretrial could have been easily and concisely instructed that the individual jurors did not need to unanimously agree on the existence of a mitigating factor before that factor could be considered by individual jurors. Mr. Sandoval’strial attorneys proposed suchan instruction. There was no reason for the court not to give the instruction, because is accurately stated the law. Had the court given the instruction, the court could have limited the possibility ofjuror confusion concerning this subject. /// /// /// -120- XXI. WHEN A REVIEWING COURT APPLIES HARMLESS ERROR ANALYSIS TO ERRORS THAT OCCURRED IN THE PENALTY PHASEOF A CAPITAL TRIAL, THE WRONG ENTITY MAKES THE LIFE/DEATH DETERMINATION. In capital cases such as the instant case, in which penalty phase errors occurred, a reviewing court cannot apply harmlesserror analysis without usurping the jury’s function to choose betweenlife and death. “TA]n appellate court, unlike a capital sentencing jury, is wholly ill-suited to evaluate the appropriateness of death in the first instance.” (Caldwell v. Mississippi (1985) 472 U.S. 320, 330.) “Whatever intangibles a jury might considerin its sentencing determination, few can be gleaned from an appellate record.” (/bid.) Thus, application of appellate harmlesserror analysis with respect to a capital penalty phase trial may prove “extremely speculative or impossible.” (Clemons v. Mississippi, supra, 494 U.S. at p. 754.) “[UJnlike the guilt determination, the sentencing function is inherently moral and normative, not factual ... and, hence, not susceptible to a burden-of-proof quantification.” (People v. Tully (2012) 54 Cal.4th 952, 1068, internal quotation marks omitted.) Thejury in Mr. Sandoval’s penalty phase retrial was instructed that, in determining whether to imposea life or death sentence, it was “free to assign -121- whatever moral or sympathetic value” it deemed appropriate to the evidence. (23 RT 4600.) It was instructed to determine “which penalty is appropriate by considering the totality” of the evidence. (23 RT 4600.) The jury wasinstructed that it could consider “mercy”or “pity” in selecting the penalty. (23 RT 4601.)® Given the intangible, ethereal context for the jury’s decision making established by these instructions, it is impossible to determine the role errors may had on the jury’s selection of penalty. Because the jury wasleft with unfettered discretion to imposea life sentence, based on notions such as morality, sympathy, mercy, and/or pity, no appellate court can meaningfully quantify or measure the effect of an error on such a decision making process. Thus,it is impossible to deem any error(s) harmless in such a context. A reviewing court could only endeavor to substitute itself in place of the jury or membersofthe jury. Such a process necessarily supplants the jury’s role in the capital sentencing process. Although the Attorney General’s suggests that reviewing courts have the capacity to apply harmlesserror analysis to penalty phase errors (RB 142), the Attorney General does not suggest how reviewing courts can perform that function 6! “Emotions can ... be powerful, and sometimes their power can overwhelm or ‘unhinge’ our faculty of reason.” (S. Garvey, “As the Gentle Rainfrom Heaven”: Mercy in Capital Sentencing (1996) 81 Cornell L.Rev. 989, 1043.) Of course, “we commonly associate mercy with emotion....” (/d. at p. 1042.) -122- without arrogating the role of the jury to make the ultimate choice betweenlife and death. In fact, no appellate court can say whether or how a given penalty phase error may have impacted a jury’s, or an individual juror’s, decision to extend or withhold mercy in a given case. “Divining the effect of” certain errors and irregularities “on a sentencer’s determination whether death is an appropriate sentenceis thus more in the province of soothsayers than appellate judges.” (Satterwhite v. Texas (1988) 486 U.S. 249, 265.) XXII. THE DEATH PENALTY IS UNCONSTITUTIONAL. State-sponsored executions violate the Constitutions of the United States and California. This court has held otherwise. Mr. Sandoval respectfully raises the issue in order to preserveit for further review. /// /// /// -123- CONCLUSION For the foregoing reasons, Mr. Sandoval respectfully requests this court to reverse the judgmentofthe superior court. Dated: December 18, 2012 Respectfully Submitted, a VICTOR S. HALTOM Attorney for Appellant RAMON SANDVOAL,JR. -124- WORD COUNTCERTIFICATE This appellant’s reply brief complies with the word-countlimit set forth in Rule 8.630(b)(1)(C) of the Rules of Court, as this brief contains 28,179 words, per the word-count function of the word-processing program on whichthis brief was created, Word Perfect X6. Dated: December 18, 2012 Sa Victor S. Haltom Counsel for Ramon Sandoval CERTIFICATE OF SERVICE I am a citizen of the United States and a resident of the County of Sacramento. I am over the age of eighteen years and not a party to the instant action; my business is 428 J Street, Suite 350, Sacramento, CA 95814. On the date below, I served the following document(s): APPELLANT’S REPLY BRIEF (X) BY MAIL. I caused envelopes containing the above-specified document, with postage thereon fully prepaid, to be placed in the United States Mail at Sacramento, California addressed as follows: ( ) BY PERSONALSERVICE.I caused such document(s) to be delivered by hand via a courier service to the offices of the person(s) listed below: ( ) BY FACSIMILE SERVICE.I caused the document(s) to be served via facsimile to the person(s) listed below: Please see attachedservicelist. I declare under penalty of perjury that the foregoing is true and correct. Executed on December __, 2012 at Sacramento, California. MOLLY HELFMAN SERVICELIST: Joan Comparet Cassani JUDGE OF THE SUPERIOR COURT 415 West Ocean Boulevard Long Beach, CA 90802 James S. Bisnow,Esq. 427 S Marengo Ave Ste 6 Pasadena, CA 91101 William K. Riggold, Esq. 2609 Sepulveda Manhattan Beach, CA 90266 Scott Kauffman, Esq. California Appellate Project 101 2nd St #600 San Francisco, CA 94105 Attorney General’s Office Timothy M. Wiener 300 S Spring St Ste 1700 Los Angeles, CA 90013 RESPONDENT Mr. Ramon Sandoval, Jr. P.O. Box T092424 San Quentin, CA 94974 APPELLANT Addie Lovelace Capital Appeals Coordinator Los Angeles County Superior Ct. 210 West Temple M-3, 2Floor Los Angeles, CA 90012