PEOPLE v. CAGE (MICKY RAY)Appellant’s Opening BriefCal.March 14, 2011 IN THE SUPREME COURTOF THE STATE OF CALIFORNIA PEOPLE OF THE STATE OF CALIFORNIA,) ) Supreme Court Plaintiff and Respondent, ) Crim. $120583 ) Vv. ) Riverside County ) Superior Court No. MICKY RAY CAGE, F 08339 2. SE a acePREME COURT Defendant and Appellant. ) mf-ED MAR 14 201] Frederick K. Ohirich Clerk APPEAL FROM THE JUDGMENT OF THE SUPERIOR COURT OF THE STATE OF CALIFORNIA™“Deputya FOR THE COUNTY OF RIVERSIDE APPELLANT’S OPENING BRIEF ~ On Automatic Appeal From a Judgment of Death SUSAN K. MASSEY (State Bar No. 138383) 9462 Winston Drive Brentwood, Tennessee 37027 Telephone: (615) 661-0661 Attorneyfor Appellant Micky Ray Cage ASPILI MERIAN Fe.V7 \r ; eae NS \5) 1 | \ | /A\|| | } \ dL 1 L Lie | IN THE SUPREME COURT OF THE STATE OF CALIFORNIA PEOPLE OF THE STATE OF CALIFORNIA,) ) Supreme Court Plaintiff and Respondent, ) Crim. $120583 ) v. ) Riverside County ) Superior Court No. MICKY RAY CAGE, ) RIF 083394 ) Defendant and Appellant. ) APPEAL FROM THE JUDGMENTOF THE. SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF RIVERSIDE APPELLANT’S OPENING BRIEF On Automatic Appeal From a Judgment of Death SUSAN K. MASSEY (State Bar No. 138383) 9462 Winston Drive Brentwood, Tennessee 37027 Telephone: (615) 661-0661 Attorneyfor Appellant Micky Ray Cage TABLE OF CONTENTS TABLE OF AUTHORITIES 1.2.0.0... 0.0.00. cece eee xIv-xliii INTRODUCTION 2.0.0... 0...ccctn eet n enn nes 1 STATEMENT OF APPEALABILITY ..........0..0... 0.00 cee eee eee 4 STATEMENT OF THE CASE ........0..0 00.0 cc cece eee eens 4 STATEMENT OF THE FACTS .......... 0.00 cc cece cee eens 8 The Guilt Phase Evidence and Testimony .............. 00000000 eee 8 A. Appellant’s History with the Victims and Their Family .... 8 B. Clari’s Decision to Leave Appellant ................... 9 C. Events Preceding the Crimes on November 9, 1998 ...... 12 D. The Crime Scene Investigation ...................05. 18 E. Appellant’s Arrest and the Evidence Obtained .......... 20 The Penalty Phase Evidence and Testimony ..................0000- 21 F, Appellant’s post-arrest behavior ..................00. 21 G. The Expert Medical Testimony .................00005 25 1. Defense expert witness Dr. Chong-Sang “Joseph” Wu ................. 25 2. Prosecution expert witness Dr. Alan Waxman ..... 27 H. The Prosecution’s Evidence in Aggravation ............ 29 1. The nature and circumstances of the murders and the impact on the victims’ family, friends and community ... 2.0.0... eee eee 29 2. Appellant’s Past Crimes and Misconduct ......... 30 a. July 12, 1986 - possession ofacane ....... 30 b. January 1987 - possession ofafirearm .... 31 C. April 1987 - threats and assaults against Nancy Icenogle and Willie Hinton ........ 32 d. 1988 - assault and injury to David Burgos . . 34 é. April 14, 1988 -felony conviction ......... 34 f April 29, 1990 - beating of Mary Roosevelt .......0.0 0000 ee 34 g. August 10, 1991 - beating ofClari and subsequentfelony conviction ......... 35 h. December 8, 1992 - assault of Vallerie .... 36 i. 1994 - assault ofRichard Burgos ......... 37 jd. June 1994 incident with neighbors ........ 37 k. January 1996 - assault ofClari .......... 39 L. July 4, 1997 - assault of Vallerie ......... 40 I. The Defense Penalty Phase Case ..................... 40 1. Dr. Boniface Dy .......... 0.0.0... 40 2. Felisha Cage .... 2.2.0.0. e eee eee eee 4] 3. Emly Farmer ........... 0.002 ee eee ee eee eee 42 J. The Prosecution’s Evidence in Rebuttal ............2.. 45 il ERRORSIN THE GUILT PHASE THE TRIAL COURT’S ADMISSION OF IRRELEVANT, CUMULATIVE AND HIGHLY INFLAMMATORY PROPENSITY EVIDENCE DEPRIVED APPELLANT OF HIS STATE AND FEDERAL CONSTITUTIONAL RIGHTS AND WAS ERROR UNDER CALIFORNIA 1 46 A. Introduction ....0 0000.0 ccc cece cece eee eeees 46 B. Overview of Legal Claims ................ 000000008. 48 C. The Proceedings Below ............ 00.0 cece cee eee 49 1. The Prosecutor’s Trial Brief, the Pretrial Hearing and the Court’s Rulings on the Proffered Evidence .. 1.2.0.2... 0... c eee eee aee 49 2. The Prosecutor’s Opening Statement ............ 54 3. Clari Burgos’s Guilt Phase Testimony ........... 54 a. ° Appellant’s choking ofClariin the late 19808...ce55 b. Beating David Montanez and choking Vallerie... 0.ee 55 C. Choking and beating Clari in January 1991]one55 d. Beating Clari in August of1991 .......... 56 é. Hitting Clari with a brick in January of 1995 000ce 56 f Hiding Clari’sfalse teeth ............... 59 g. Threatening Clari in 1998 0.0.0... cca 59 ill h. Sugar in the gas tank ofClari’s car ....... 60 i. Tearing up Clari’s money ............... 61 jh Throwing Clari’s purse out ofthe window ......... 06. 61 4. Vallerie Cage’s Guilt Phase Testimony .......... 62 a. Two Incidents in 1991 and 1994 .......... 63 b. The brick incident in January 1995........ 63 C. Appellant shaves Vallerie’s hair .......... 65 5. The Closing Argument and Jury Instructions ...... 65 Standard of Review ........... 0.0.0 cece cece eee 67 The Prior Incidents of Domestic Violence Were Not Relevant to Any Disputed Facts or Material Issues, and there was no Reasoned Justification for Admitting this testimony under Evidence Code section1101(b) ......... 69 1. The past crimes and the murders did not share the common features which would makethis evidence relevant for identity. ................. 73 2. The evidence wasnot relevant to establish motive 2.0.0... 0... e cece eee ees 77 3. The past crimes were not probative of intent in the capital case... 2...eeee 78 4. The evidence did not prove a common scheme or plan .. 0.2.2... cece eee 80 Appellant’s past Crimes Were Not Similar to The Murders 1.1.0... 00... ccc eee eee eee eee 81 iv Il. H. The Probative Value of This Evidence Was Greatly Outweighedby its Prejudicial Effect .................. 85 1. The domestic abuse wassignificantly different from the charged offenses, and many incidents were remote 2...eeeee eee 88 2. Thetrial court should have limited the past crimes evidence given the availability of alternatives 2.0...ceetee ees 90 Reversal Is Required under Either the State or Federal Standard . 0.0...eteee91 APPELLANT’S CONVICTIONS AND SENTENCE WERE OBTAINED CONTRARY TO CALIFORNIA LAW AND IN VIOLATION OF THE STATE AND FEDERAL CONSTITUTIONS BECAUSE THERE WAS . INSUFFICIENT EVIDENCE OF PREMEDITATION AND DELIBERATION TO SUSTAIN THE FIRST DEGREE MURDER VERDICTS ............-0 0c eee eee 93 A. Introduction ...... 0.0...ceeee eee 93 B. Overview of Legal Argument ..........-..-.--- 5-05. 95 C. Standard of Review ......... 00. e cece eee ee eee ee 96 D. An Unlawful Killing is Presumed to be Second Degree Murder Under California Law ...............2--2005- 96 The Evidence in Appellant’s Case Did Not Sustain an Inference of Premeditation and Deliberation........... 100 1. There was no evidence of extensive planning .... 101 2. The mannerofkilling in this case implies a lack ofpremeditation and deliberation .......... 104 Ill. IV. 3. The prosecution did not establish a motive ...... 106 E. Conclusion . 0.0.0...ceee ee eens 107 THE EVIDENCE DID NOT ESTABLISH THAT APPELLANT HAD BEEN LYING-IN-WAIT .............. 109 A. Introduction and Overview Lc nee eee ne eee eee 109 B. The Legal Standard ....... 0.6.6 cece eee eee eee eee 111 C. Proceedings Below ...........-+-0- 5-05re 111 1. The prosecution’s evidence and argument ....... 111 2. The jury instructions .......... 006. e eee e eee 115 D. There Was No Evidence of Watchful Waiting to Sustain the Special Circumstanceorthe First Degree Murder Theory ........ 2.00 - cess eee eee eee 117 THE JURY INSTRUCTIONS PERTAINING TO THE LYING IN WAIT SPECIAL CIRCUMSTANCES AND THE FIRST DEGREE MURDER THEORY WERE CONFUSING AND DEPRIVED APPELLANT OF A FAIR TRIAL...1.eters 126 A. Introduction and Overview ........ 0.00 cece eee eee 126 B. The Instructions Pertaining to Lying in Wait Were Confusing and Inconsistent ...........- 02+ ee eee eee 127 C. The Instruction on Lying in Wait, First Degree Murder Was Improper ...........--2-0-0065keene 130 D. TheInstructions on the Temporal Elements of Lying in Wait Were Identical for Both Crimes ......... 131 vi Vi. THE TRIAL COURT ALLOWEDTHE JURY TO CONSIDER IRRELEVANT AND HIGHLY PREJUDICIAL VICTIM IMPACT TESTIMONYIN THE GUILT PHASE OF APPELLANT’S TRIAL ........... 133 A. Introduction ... 0... 0... cee eee eee eee ees 133 B. The Evidence and Testimony ............. oveeeees 134 1. Clari Burgos 0.2...eeeeee 134 2. Richie Burgos ....... 0.0.0.0 cece eee eee 138 C, Overview of Legal Claims ..................0-0005- 142 D. Standard ofReview ......... 0... ce eee cece ee eee 143 E. Evidence of Clari’s and Richie’s Reactions to the G. Crimes Had NoRelevance to Any Issues in the Guilt Phase 0.0.0.0...cctees 143 The Testimony was Unduly Prejudicial, Particularly in Conjunction with the Erroneous Admission of Other Prejudicial Evidence in the Guilt Phase............... 145 Reversal is Required ......... 0.000000 eee eee eee eee 145 THE TRIAL COURT ABUSEDITS DISCRETION UNDER CALIFORNIA LAW AND DEPRIVED APPELLANT OF HIS STATE AND FEDERAL CONSTITUTIONAL RIGHTS BY ADMITTING INTO EVIDENCE AN EXCESSIVE NUMBER OF GRUESOME AND HIGHLY PREJUDICIAL PHOTOGRAPHS....... 0.00.0 c ect ene 146 A. Introduction 2.0... 0.0... cecetee ees 146 B. The Proceedings Below .......... 0.0.0 e cece eens 147 C. Overview of Legal Claims .............. 2... .0000005 151 vil VIL. VIL. E. Standard of Review ......... 0.0 e ee eee eee eee eees 151 These Nine Photographs Were Largely Irrelevant, And Any Marginal Relevance Was Vastly Outweighed By the Accompanying Prejudice .................-- 152 These Photographs Were Unduly Prejudicial .......... 156 THE TRIAL COURT ERRONEOUSLY INSTRUCTED THE JURY PURSUANT TO CALJIC 2.51 2...eeeeee 158 This Instruction Allowed the Jury to Determine Guilt Based on Motive Alone .............0 00s eee 159 The Instruction Was Especially Prejudicial in this Case Because it Improperly Supported the Prosecution’s Theory for First Degree Murder ............0020005 160 The Instruction Impermissibly Lessened the Prosecutor’s Burden of Proof and Violated Due ProcesS .......-. 000 cece cee eee ee eens 163 The Instruction Shifted the Burden of Proof to Imply That Appellant Had to Prove Innocence ......... 165 Reversal is Required ..... 00... 0.00 e cece cece eee 166 THE TRIAL COURT ERRED IN INSTRUCTING THE JURY ON CONSCIOUSNESSOF GUILT ............ 166 A. CALJIC 2.52 Improperly Duplicated the Circumstantial Evidence Instructions ...... 0.00.00 c ee eee ee ee eee 167 The Instruction Was Partisan and Argumentative ...... 168 The Consciousness-of-guilt Instruction Allowed An Irrational Permissive Inference about — Appellant’s Guilt... 2.0.02.eee 175 Vill IX. D. Reversal is Required .. 0.0.0.0... 000 c eee cee eee 182 THE INSTRUCTIONS GIVEN TO APPELLANT’S JURY IMPERMISSIBLY UNDERMINED AND DILUTED THE REQUIREMENT OF PROOF BEYOND A REASONABLE DOUBT .. 2... ccceee eee eee nent nee 183 A. Introduction and Overview of Legal Claims ........... 183 B. The Instructions on Circumstantial Evidence Under- E. mined the Requirement of Proof Beyond a Reasonable Doubt (CALJIC Nos. 2.90, 2.01, 8.83 and 8.83.2) ...... 185 Other Instructions Also Vitiated The Reasonable Doubt Standard (CALJIC Nos. 1.00, 2.21.1, 2.21.2, 2.22, 2.27, 2.51 And 2.52) 0...cee 190 This Court Should Reconsider its Prior Rulings Upholding these Defective Instructions .............. 194 Reversal is Required ............. 0.0005.Lee ees 198 THE LYING-IN-WAIT SPECIAL CIRCUMSTANCE OF PENAL CODE SECTION 190.2 IS UNCONSTITUTIONAL .... 0.0... eeeee eee 199 A. This Special Circumstance Fails to Narrow the Class of Persons Subject to the Death Penalty .............. 201 The Lying in Wait Special Circumstance Provides No Meaningful Basis for Distinguishing among Defendants Found Guilty of Murder .. 22.0.0... eee eee 206 ERRORSIN THE PENALTY PHASE XI. THE VICTIM IMPACT EVIDENCE AND TESTIMONY IN THE PENALTY PHASE WAS UNDULY INFLAMMATORY IN LIGHT OF THE CIRCUMSTANCESOF THIS CASE, AND THE ADMISSION OF THIS EVIDENCE WAS ERROR UNDER STATE AND FEDERAL LAW ..........-.-..05. 207 ix Introduction .........- 2.0 ce eee cette teens Overview Of Legal Claims .................-.00. Standard of Review ........... 0c cece ee eee eens The Basic Law Of Victim Impact ................. 1. The Limited Constitutional Authorization Provided by Payne v. Tennessee............. 2. Victim Impact Evidence under California Law ... The Penalty Phase Testimony ...............--+-- 1. The testimony of Bruni’s mother, Mrs. Celena Rodriguez .............-000055 2. The testimony of Bruni’s sister, Lupe Quiles ................. eee eee eee 3, Thetestimony of Clari Burgos .............. 4, Vallerie Cage’s Testimony .............--.-- It Was Improperfor Clari to Include Her Opinion of Appellant in the Victim Impact Testimony .......... It Was Improper and Highly Prejudicial to Ask Witnesses to Speculate about What Their Responses Would Have BeenIfthe Victims Had Died under Different Circumstances ............ 0000s eee eee The Evidence and Testimony Relating the Victims’ Life Stories, Memories of Them as Children and at Family Holidays WasIrrelevant and Highly Prejudicial .... 0.0... eeeee eee .. 207 .. 209 .. 210 .. 211 .. 21) 216 .. 221 .. 221 .. 223 .. 226 .. 228 .. 228 .. 231 .. 236 XII. XII. K. Lupe Quiles’s Testimony Was Cumulative And Inflammatory ........ 0000. e cece ee eee eee 239 The Trial Court Erred by Allowing Other Witnesses to Testify About the Impact of the Crimes on Richie Burgos .... 0.6.0.0... cece eee eee 245 Conclusion .......... 02 cee eee eee eee e es 250 THE TRIAL COURT DENIED APPELLANTHIS CONSTITUTIONAL RIGHTS TO DUE PROCESS OF LAW AND A FAIR AND RELIABLE PENALTY DETERMINATION BY REFUSING ALL DEFENSE REQUESTS FOR MODIFICATIONS TO THE STANDARD INSTRUCTIONS ........ 0.0. c ceceete eee 251 A. Introduction and Overview ........... 0.00 cece eee 251 B. The Requested Modifications Were Appropriate C. and Necessary to Clarify the Law and to Guide the Jury’s Discretion ..... 0.0.0... cece eee eee 253 Reversal is Required ........ 0.00. e eee eee eee 256 THE USE OF CALJIC NO: 8.88 VIOLATED APPELLANT’S RIGHTS UNDER THE FIFTH, SIXTH, EIGHTH AND FOURTEENTH AMEND- MENTS TO THE UNITED STATES CONSTITUTION ...... 256 A. Introduction and Overview ........ 0.00 e eee eee ee 257 B. The Version of CALJIC 8.88 Given Here Improperly Reducedthe Prosecution’s Burden of Proof below the Level Required by Penal Code Section 190.3 .......... 258 The CALJIC 8.88 Instruction Incorrectly Described the Weighing Process Applicable to Aggravating and Mitigating Evidence Under California Law ........ 260 Reversal is Required ... 0.0.0.0... cece eee eee 264 xi XIV. XV. XVI. THE TRIAL COURT FAILED TO ENSURE IMPARTIALITY AND PARITY BETWEEN CALJIC INSTRUCTIONS8.85 AND 8.87 REGARDING JURY NON- UNANIMITY, THUS SKEWING THE INSTRUCTIONS TOWARD A DEATH VERDICT AND VIOLATING APPELLANT’S EIGHTH AMENDMENT RIGHT TO A FAIR AND RELIABLE PENALTY DETERMINATION ..... 266 THE FAILURE TO INSTRUCT THE JURY ON THE PRESUMPTION OF LIFE VIOLATED THE FIFTH, EIGHTH, AND FOURTEENTH AMENDMENTSTO THE UNITED STATES CONSTITUTION ...........-.---- 268 APPELLANT’S CONVICTIONS AND SENTENCE MUST BE REVERSED DUE THE CUMULATIVE EFFECTSOF THE ERRORSIN THIS TRIAL ...... 2... eee ee eee eee 270 XVII. THE DEATH PENALTYIS DISPROPORTIONATE TO APPELLANT’S INDIVIDUAL CULPABILITY ............ 272 LEGAL ARGUMENTS CONCERNING CAPITAL PUNISHMENT XVII. CALIFORNIA’S DEATH PENALTY STATUTE, AS INTERPRETED BY THIS COURT AND APPLIED IN APPELLANT’S CASE, VIOLATES THE UNITED STATES CONSTITUTION AND INTER- NATIONAL LAW 2.0.0.0... eeeene e ene 278 A. Penal Code, section 190.2 Is Impermissibly Broad ...... 280 B. The Broad Application of Section 190.3, Factor(a), Violated Appellant’s Constitutional Rights ............ 281 C, The Instructions Caused the Penalty Determination to Turn on an Impermissibly Vague and Ambiguous Standard 20... 0.ceeeee eens 283 D. The Use of Restrictive Adjectives in the List of Potential Mitigating Factors Impermissibly Prevented Appellant’s Jury from Considering Relevant Mitigation . 283 Xil E. The Failure to Clarify that Certain Statutory Factors Could Only be Relevant as Potential Mitigators Prevented a Fair and Reliable Penalty Determination ............ 284 F, Appellant’s Death Sentence is Unconstitutional Becauseit is Not Based on Findings Made Beyond a Reasonable Doubt ........ ce cece e nee eee eeeee 286 G. California Law Violates the Sixth, Eighth, and Fourteenth Amendmentsby Failing to Require That the Jury Base Any Death Sentence on Written Findings Regarding Agegravating Factors... 02... 6. cece ee eee 291 H. The Death Verdict Was Not Premised on . Unanimous Jury Findings ........... 0.0060. e ee eee 294 1. Some Burden of Proof Is Required, or the Jury Should Have BeenInstructed That There Was No Burden ofProof ......... 0.00 cece ee eee eee 296 J. California’s Use of the Death Penalty as a Regular Form ofPunishment Falls Short of International Norms of Humanity and Decency and Violates the Eighth and Fourteenth Amendments; Imposition of the Death Penalty Now Violates the Eighth and Fourteenth Amendments to the United States Constitution .......... 0. eee eee eee eens 297 CONCLUSION ...... 0... 0c eee ence een ee ee ene 299 CERTIFICATION OF WORD COUNT ...............2 022 eee eee 299 PROOF OF SERVICE .........0000s300 Xlil TABLE OF AUTHORITIES FEDERAL CASES Page Apprendi v. New Jersey (2000) 530 U.S. 466 [147 L.Ed.3d 435, 120 S.Ct. 2348] ..........-. 97, 287-290 Arave v. Creech (1993) 507 U.S. 463 [123 L.Ed.2d 188, 113 S.Ct. 1534] ........-. 200, 201, 207 Baldwin v. Blackburn (5th Cir. 1981) 653 F.2d 942 oooceeetenet een ees 164 Ballew v. Georgia (1978) A35 U.S. 223 [55 L.Ed.2d 234, 98 S.Ct. 1029] .......- 6. eee ee eee 294 Bank ofNova Scotia v. United States (1988) A87 U.S. 250 [101 L.Ed.2d 228, 108 S.Ct. 2369] ........-.----006- 265 Beck v. Alabama (1980) 447 U.S. 625 [65 L.Ed.2d 392, 100 S.Ct. 2382] ........-.2---05- passim Blakely v. Washington (2004) 542 U.S. 296 [159 L.Ed.2d 403, 124 S.Ct. 2531] ........-. 287, 289, 290 Booth v. Maryland (1987) A82 U.S. 496 [96 L.Ed.2d 440, 107 S.Ct 2529] ..... 68, 212, 213, 230, 231 Boyde v. California (1990) A494 U.S. 370 [108 L.Ed.2d 316, 110 S.Ct. 1190] ......-. 0.02 eee. 259 Braxton v. United States (1991) 500 U.S. 344 [114 L.Ed.2d 385, 111 S.Ct. 1854] 2.2.00... 0000-06 105 Brownv. Sanders (2006) 546 U.S. 212 [163 L.Ed.2d 723, 126 S.Ct. 884] .........---05 +2 ee 282 Cage v. Louisiana (1990) A98 U.S. 39 [112 L.Ed.2d 339, 111 S.Ct. 328] ........--.. 184, 191, 199 XIV Caldwell v. Mississippi (1985) 472 US. 320 [86 L.Ed.2d 231, 105 S.Ct. 2633] 2.00.0... eee eee. 266 California v. Brown (1987) 479 U.S. 538 [93 L.Ed.2d 934, 107 S.Ct. 837] 2.0.0.2... eee 237, 291 Campbell v. Blodgett (9th Cir. 1993) 9907 F.2d 512 1.eeeeens 285 Carella v. California (1989) 491 U.S. 263 [105 L.Ed.2d 218, 109 S.Ct. 2419] ...........02. 187, 199 Chapman v. California (1967) 386 U.S. 18 [17 L.Ed.2d 705, 87 S.Ct. 824] 0.20... .....0.0000.0. passim Collins v. Youngblood (1990) 497 U.S. 37 [111 L.Ed.2d 30, 110 S.Ct. 2715]... 0ee eee. 109 Cooperv. Fitzharris (9th Cir. 1978) 586 F.2d 1325 oceeeeee teen e eee 27) Copeland v. State (2001) 343 Ark. 327 [37 S.W.3d 567] 2...eee 248 Cunningham v. California (2007) 549 U.S. 270 [166 L.Ed.2d 856, 127 S.Ct. 856] ....... 286, 287, 289, 290 Delo v. Lashley (1993) 507 U.S. 272 [122 L.Ed.2d 620, 113 S.Ct. 1222] .......0...20...... 268 Durham v. California (1969) 395 U.S. 968 [23 L.Ed.2d 755, 89 S.Ct. 2116] 2.20.2... eee eee. 86 Eddings v. Oklahoma (1982) 455 U.S. 104 [71 L.Ed.2d 1, 102 S.Ct. 869] 22.0.2 eee. 286 Enmundv. Florida (1982) 458 U.S. 782 [73 L.Ed.2d 1140, 102 S.Ct. 3368] ..........0... 273, 275 XV Estelle v. McGuire (1991) 502 USS. 62 [116 L.Ed.2d 385, 112 S.Ct. 475] ......... 48, 142, 146, 196 Estelle v. Williams (1976) 425 U.S. 501 [48 L.Ed.2d 126, 96 S.Ct. 1691] 6.2.0.0... 2 eee eee 268 Fahy v. State ofConnecticut (1963) 375 US. 85 [11 L.Ed.2d 171, 84 S.Ct. 229] 2.2... eee eee 68 Fenelon v. State (Fla. 1992) 17 Fla.Weekly S101 [594 So.2d 292] 2.0.0... . cee eee eee ee eee 173 Fetterly v. Paskett (9th Cir. 1993) 997 F.2d. 1295 oo.cetteeens 284, 285 Ford v. Wainwright (1986) 477 U.S. 399 [91 L.Ed.2d 335, 106 S.Ct. 2595] 2.0... eee eee eee 158 _ Francis v. Franklin (1985) 471 U.S. 307 [85 L.Ed.2d 344, 105 S.Ct. 1965] ........------- 188, 196 Furman v. Georgia (1972) 408 U.S. 238 [33 L.Ed.2d 346, 92 S.Ct. 2726] .........-.-+4-- 280, 293 Garceau v. Woodford (9th Cir. 2001) QTS F.3d 769 Loicnee eee eens 92 Gardener v. Florida (1977) 430 US. 349 [51 L.Ed.2d 393, 97 S.Ct. L197] «0... eee eee eee 67 Godfrey v. Georgia (1980) 446 U.S. 420 [64 L.Ed.2d 398, 100 S.Ct. 1759] ...........005. 132, 200 Green v. Bock Laundry Machine Co. (1989) 490 U.S. 504 [104 L.Ed.2d 557, 109 S.Ct. 1981] .......--.--00--4. 171 Gregg v. Georgia (1976) 428 U.S. 153 [49 L.Ed.2d 859, 96 S.Ct. 2909] .... 222, 255, 256, 266, 291 Xv1 Harmelin v. Michigan (1991) 501 U.S. 957 [115 L.Ed.2d 836, 111 S.Ct. 2680] ...........0.. 292, 295 Hicks v. Oklahoma (1980) 447 U.S. 343 [65 L.Ed.2d 175, 100 S.Ct. 2227] ................. passim Houston v. Roe (9" Cir. 1999) WIT F.3d 901 oeeee nee eens 118 In re Winship (1970) 397 U.S. 358 [25 L.Ed.2d 368, 90 S.Ct. 1068] .........0-...2.0. passim Jackson v. Virginia (1979) 443 U.S. 307 [61 L.Ed.2d 560, 99 S.Ct. 2781]... 2... eee passim Johnson v. Mississippi (1988) 486 U.S. 578 [100 L.Ed.2d 575, 108 S.Ct. 1981] ..........000.. 96, 151 Kansas v. Marsh (2006) 548 U.S. 163 [165 L.Ed.2d 429, 126 S.Ct. 2516] ..........00.. 278, 293 Kennedy v. Louisiana (2008) _ US. [171 L.Ed.2d. 525, 128 S.Ct. 2641] «2.00... ee. 277, 297 Killian v. Poole (9th Cir. 2002) 282 F.3d 1204 2...eetne eee enee 271 Lambright v. Stewart (9th Cir. 1999) L67 F.3d 477 oo.cee 68, 151, 210, 264 Lindsay v. Normet (1972) 405 U.S. 56 [31 L.Ed.2d 36, 92 S.Ct. 862] ...............000.. 168, 171 Lisenba v. California (1941) 314 US. 219 [86 L.Ed. 166, 62 S.Ct. 280 ou — UU ~~ ] Lockett v. Ohio (1978) 438 U.S. 586 [ 57 L.Ed.2d 973, 98 S.Ct. 2954] ......... 67, 265, 273, 283 XVil Lowenfield v. Phelps (1988) 484 U.S. 231 [98 L.Ed.2d 568, 108 S.Ct. 546] 2.0.0... 200 Maynardv. Cartwright (1988) 486 U.S. 356 [100 L.Ed.2d 372, 108 S.Ct. 1853] .......... 200, 281, 282 McKinney v. Rees (9" Cir. 1993) 993 F.2d 1378 (0.eeee tenet ees 92 McKoyv. North Carolina (1990) 494 U.S. 433 [108 L.Ed.2d 369, 110 S.Ct. 1227] .............000.. 294 Michelson v. United States (1948) 335 US. 469 [93 L.Ed. 168, 69 S.Ct. 213] ...... 0... ee eee 87, 92 Miranda v. Arizona (1966) 384 U.S. 436 [L.Ed.2d 694, 86 S.Ct. 1602]... 0.0... cee eee 24 Monge vy. California (1998) 524 U.S. 721 [141 L.Ed.2d 615, 118 S.Ct. 2246] ............00008. 294 Mullvaney v. Wilbur (1975) 421 U.S. 684 [44 L.Ed.2d 508, 95 S.Ct. 1881] «1.0.6.0... 00. ee, 95, 190 Myers v. Yist (9th Cir. 1990) BOT F.2d 417 oo.tneene enna 292, 295 Parker v. Dugger (1991) 498 U.S. 308 [112 L.Ed.2d 508, 95 S.Ct. 1881] 2.0.0... 00.000. 273, 274 Parle v. Runnels (9th Cir. 2007) 505 F.3d 922 oooeennee ence eens 271 Payne v. Tennessee (1991) 501 U.S. 508 [115 L.Ed.2d 720, 111 S.Ct. 2597] ......... 134, 142, 209, 211-216, 221, 229-231, 236 Proffitt v. Florida (1976) 428 U.S. 242 [49 L.Ed.2d 913, 96 S.Ct. 2960] 2.2.0.0... 2 ee eee 255 XVill Reagan v. United States (1895) 157 U.S. 301 [39 L.Ed. 709, 15 S.Ct. 610] ........... 0.2.02. 171, 266 Ring v. Arizona (2002) 536 US. 584 [153 L.Ed.2d 556, 122 S.Ct. 2428] ....... 286-290, 293, 298 Romano v. Oklahoma (1994) 512 U.S. 1 [129 L.Ed.2d 1, 114 S.Ct. 2004] .....0......00..... 199, 206 Roper v. Simmons(2005) 543 U.S. 551 [161 L.Ed.2d 1, 125 S.Ct. 1183] 0.0.0.0... 00.0200 08. 297 Rose v. Clark (1986) 478 U.S. 570 [92 L.Ed.2d 460, 106 S.Ct. 3101] ................... 264 Sandstrom v. Montana (1979) 422 U.S. 510 [61 L.Ed.2d 39, 99 S.Ct. 2450] 2. ....02.....0... 164, 188 Schwendeman v. Wallenstein (9th Cir. 1992) OTL F.2d 313 2.cceee een n ee neas 177, 183 Simmons v. South Carolina (1994) 512 U.S. 154 [129 L.Ed.2d 133, 114 S.Ct. 2187] ............0..0.. 255 Skipper v. South Carolina (1986) 476 U.S. 1 [ 90 L.Ed.2d 1, 106 S.Ct. 1669] .... 0.0.0.0... eee. 68 Sochor v. Florida (1992) 504 U.S. 527 [119 L.Ed.2d 326, 112 S.Ct. 2114] 2.0.0.0... 0.000020. 266 South Carolina v. Gathers (1989) 490 U.S. 805 [104 L.Ed.2d 876, 109 S.Ct. 2207] .......... 211, 212, 215 Spencer v. Texas (1967) 335 U.S. 554 [17 L.Ed.2d 606, 87 S.Ct. 648] .....00......00.00. 87, 92 State ofMaryland v. United States (4" Cir. 1947) 165 F.2d 869 0...cenceenn enna 219 XIX Stringer v. Black (1992) 503 U.S. 222 [117 L.Ed.2d 367, 112 S.Ct. 1130] ...........--. 261, 286 Sullivan v. Louisiana (1993) 508 U.S. 275 [124 L.Ed.2d 182, 113 S.Ct. 2078] ...... 184-187, 191-193, 198, 199, 260 Townsend v. Sain (1963) 372 U.S. 293 [9 L.Ed.2d 770, 83 S.Ct. 745] 20... eee eee eee 291 Trop v. Dulles (1958) 356 U.S. 86 [2 L.Ed.2d 630, 78 S.Ct. 590] «6.2... eee eee 297, 298 Tuilaepa v. California (1994) 512 U.S. 967 [129 L.Ed.2d 750, 114 S.Ct. 2630] ...........--. 269, 282 Ulster County Court v. Allen (1979) AA? U.S. 140 [60 L.Ed.2d 777, 99 S.Ct. 2213] «1... 0... eee. 176, 177 United States v. Frederick (9th Cir. 1996) TR E3d 1370 oo iccccceee e ete e nes 271 United States v. Gainey (1965) 380 U.S. 63 [13 L.Ed.2d 658, 85 S.Ct. 754] 2.6... ee eee ee ee 176 United States v. Hall (5th Cir. 1976) 525 F.2d 1254 (occeee nent n nes 196 United States v. Mitchell (9th Cir. 1999) 172 F.3d 1104octe eens 159 United States v. Rubio-Villareal (9" Cir. 1992) 967 F.2d 294 2.eeenents 176 United States v. Warren (9" Cir. 1994) D5 F.3d 890 oooeeneens 175, 176 Victor v. Nebraska (1994) 511 U.S. 1 [127 L.Ed.2d 944, 114 S.Ct. 1239] 2.2... ee eee eee 184 XX Williams v. Taylor (2000) 529 U.S. 362 [120 S.Ct. 1495, 146 L.Ed.2d 389] ........... 0.0006. 264 Woodson v. North Carolina (1976) 428 U.S. 280 [49 L.Ed.2d 944, 96 S.Ct. 2978] ..... 96, 151, 255, 273, 294 Zant v. Stephens (1983) 462 U.S. 862 [77 L.Ed.2d 235, 103 S.Ct. 2733] .... 151, 199, 205, 274, 280, 284 STATE CASES Buzgheia v. Leasco Sierra Grove (1997) 60 Cal.App.4th 374 [70 Cal.Rptr.2d 427]... 0... c cece cece ee eee ees 197 Cargle v. State (1995) 909 P.2d 806 2...ceeee e eens 237, 238 Commonwealth v. Carr (1950) 312 Ky. 393 [227 S.W.2d 904] ooeeeeens 219 Conoverv. State (1997) 933 P.2d 904 2.cccee eee een nee 236, 238 Dill v. State (Ind. 2001) TAL N.E.2d. 1230 00...ceeee eens 173, 174 Estate ofMartin (1915) 170 Cal. 657 [151 P. 138] 0...tee 169 Guerra v. Handlery Hotels, Inc.(1959) 53 Cal.2d 266 [1 Cal.Rptr. 330, 347 P.2d 674] .... 22. ee eee. 129 Haddanv. State (Wyo. 2002) 42 P.3d495 .......eeeeee tenet ee eee 173 In re Lynch (1972) 8 Cal.3d 410 [105 Cal.Rptr. 217, 503 P.2d 921] ............ 0.0.06. 274 In re Sturm (1974) 11 Cal.3d 258 [113 Cal.Rptr. 361,521 P.2d 97] 2.0.0.2... ee ee. 292 Xxi Mosley v. State (Tex.Crim.App. 1998) 983 S.W.2d 249 200.eee People v. Alcala (1984) 36 Cal.3d 604 [15 Cal.Rptr.2d 432, 842 P.2d 1192] People v. Allison (1989) 48 Cal.3d 879 [258 Cal.Rptr. 208, 771 P.2d 1294] People v. Alvarado (1991) | 232 Cal.App.3d 501 [283 Cal.Rptr.2d 479] ...... People v. Alvarez (2002) 100 Cal.App.4th 1170 [122 Cal.Rptr.2d 859] .... People v. Anderson (1968) 70 Cal.2d 15 [73 Cal.Rptr. 550, 447 P.2d 942] ... People v. Anderson (1994) 26 Cal.App.4th 1241 [32 Cal.Rptr.2d 442] ...... People v. Anderson (2001) 25 Cal.4th 543 [106 Cal.Rptr.2d 575, 22 P.3d 347] People vy. Arellano (2004) 125 Cal.App.4th 1088 [23 Cal.Rptr.3d 172] ..... People v. Arias (1996) 13 Cal.4th 92 [51 Cal.Rptr.2d 770, 913 P.2d 980] People v. Ashmus (1991) 54 Cal.3d. 932 [2 Cal.Rptr.2d 112, 820 P.2d 214] People v. Avalos (1984) 37 Cal.3d 216 [207 Cal.Rptr. 549, 689 P.2d 121] . ' People v. Avila (2006) 38 Cal.4th 491 [43 Cal.Rptr.3d 1, 133 P.3d 1076] XXil Leen eee eee 213, 239 .... 48, 70, 86, 87, 102, 105, 142 Lee ene eee eens 79 Lec eee eee ee 109 .... 79, 95-99, 102, 104, 106, 108, 177, 179 Lecce eee eee ees 268 Lobe eee ence eee 202 beeen eae 172, 269 Lecce eee eee ee 260 People v. Bacigalupo (1991) 1 Cal.4th 103 [2 Cal.Rptr.2d 335, 820 P.2d 414] ......---- eee 172 People v. Bacigalupo (1993) 6 Cal.4th 857 [24 Cal.Rptr.2d 808, 862 P.2d 808] ...........---4-- 280 People v. Balcom (1994) 7 Cal.4th 414 [27 Cal.Rptr.2d 666, 867 P.2d 777] .......---0-0-- 70, 73 People v. Barnett (1998) 17 Cal.4th 1044 [74 Cal.Rptr.2d 121, 954 P.2d 384] ...........--6-- 77 People v. Baskett (1965) 237 Cal.App.2d 712 [47 Cal.Rptr. 274] 0.566... eee eee eee eee 91 People v. Beaumaster (1971) 17 Cal.App.3d 996 [95 Cal.Rptr. 360]... 6.6... e eee eee eee eee 164 People v. Bender (1945) 27 Cal.2d 164 [163 P.2d 8] 2.0.66. eee eeeees 100 People v. Berryman (1993) 6 Cal.4th 1048 [25 Cal.Rptr.2d 867, 864 P.2d 40] ............. 168, 258 People v. Blair (2005) 36 Cal.4th 686 [31 Cal.Rptr.3d 485, 115 P.3d 1145] ........----6-- 281 People v. Bloyd (1987) 43 Cal.3d 333 [233 Cal.Rptr. 368, 729 P.2d 802] ........-.----- +5: 182 People v. Bonilla (2007) 41 Cal.4th 313 [60 Cal.Rptr.3d 209, 160 P.3d 84] ..........-..--5. 123 People v. Boyd (1985) 38 Cal.3d 762 [215 Cal.Rptr. 1, 700 P.2d 782] ........--.--5-- 216, 285 People v. Boyette (2002) 29 Cal.4th 381 [127 Cal.Rptr.2d 544, 58 P.3d 391] ........ 180, 210, 219 XX1il People v. Box (2000) 23 Cal.4th 1153 [99 Cal.Rptr.2d 69, 5 P.3d 130] ........--.. eee eee 220 People v. Brady (2010) 50 Cal.4th 547 [236 P.3d 312, 113 Cal.Rptr.3d 458] ... 208, 210, 211, 244, 248, 270 People v. Breaux (1991) 1 Cal.4th 281 [3 Cal.Rptr.2d 81, 821 P.2d 585] ......----- ee. 267, 283 People v. Brown (1985) AO Cal.3d 512 [230 Cal.Rptr. 834, 726 P.2d 516] ......---- ee ee eee 70 People v. Brown (1993) 17 Cal.App.4th 1389 [22 Cal.Rptr.2d 14] 2.6.0... eee eee eee ee eee 258 People v. Burgener (1986) Al Cal.3d 505 [224 Cal.Rptr. 112].........-..---.05-005- 67, 143, 211 People v. Caldwell (1965) A3 Cal.2d 864 [279 P.2d 539]...eeeens 98 People v. Campbell (1999) 76 Cal.App.4th 305 [90 Cal.Rptr.2d 315] 2.6.0... eee eee ee eee eee 80 People v. Carasi (2008) . 44 Cal.4th 1263 [82 Cal.Rptr.3d 265, 190 P.3d 616] .............-. 200 People v. Cardenas (1982) 31 Cal.3d 897 [184 Cal.Rptr. 165, 647 P.2d 569] ..........6---- 48, 142 People v. Caritativo (1956) 46 Cal.2d 68 [292 P.2d 513] .........- eee eee e 103 People v. Carpenter (1997) 15 Cal.4th 312 [68 CaiRptr.2d 1,935 P.2d 708] .........-.--. 118, 152 People v. Carpenter (1999) 21 Cal.4th 1016 [90 Cal.Rptr.2d 607, 988 P.2d 531] ..........--4-. 272 XX1V People v. Carrington (2009) 47 Cal.4th 145 [97 Cal.Rptr.3d 117, 211 P.3d 617] .......0...000.. 248 People v. Carter (2005) 36 Cal.4th 1114 [32 Cal-Rptr.3d 759, 117 P.3d 476] ........... 111, 156 People v. Castillo (1997) 16 Cal.4th 1009 [68 Cal.Rptr.2d 648, 945 P.2d 1197] .............. 160 People v. Castro (1985) 38 Cal.3d 301 [211 Cal.Rptr. 719, 696 P.2d 111] .................. 176 People v. Catlin (2001) 26 Cal.4th 81 [109 Cal.Rptr.2d 31, 26 P.3d 357] ............... 74, 161 People v. Ceja (1993) 4 Cal.4th 1134 [17 Cal.Rptr.2d 375, 847 P.2d 55] ........0.0.000.. 118 People v. Clark (1993) 5 Cal.4th 950 [22 Cal.Rptr.2d 689, 857 P.2d 1099] 2.02.0... .0000.. 217 People v. Coffman (2004) 34 Cal.4th 1 [17 Cal.Rptr.3d 710, 96 P.3d 30] .........-0.-..-.0-.. 258 People v. Cole (2004) 33 Cal.4th 1158 [17 Cal.Rptr.3d 532,95 P.3d 811] .............06. 119 People v. Cook (2006) 39 Cal .4th 566 [47 Cal.Rptr.3d 22, 139 P.3d 492] ............. 294, 297 People v. Cooper (1960) 53 Cal.2d 755 [3 Cal.Rptr. 148, 349 P.2d 964] .........0.......00... 102 People v. Cooper (1991) 53 Cal.3d 771 [281 Cal.Rptr. 90, 809 P.2d 865] .......... 253, 260, 262 People v. Crandell (1988) 46 Cal.3d 833 [251 Cal.Rptr. 227, 760 P.2d 423] .............0.00.. 180 XXV People v. Crittenden (1994) 9 Cal.4th 83 [36 Cal.Rptr.2d 474, 885 P.2d 887] .......... 144, 195, 196 People v. Daniels (1991) 52 Cal.3d 815 [277 Cal.Rptr. 122, 802 P.2d 906] ......-..--...- 77, 169 People v. Davis (1995) 10 Cal.4th 463 [41 Cal.Rptr.2d 826, 896 P.2d 119] ............. 99, 106 People v. Dewberry (1959) 51 Cal.2d 548 [334 P.2d 852] 2...eeeeeeee 162 People v. Dillon (1983) 34 Cal.3d 441 [194 Cal.Rptr. 390, 688 P.2d 697] .........-.... 274, 275 People v. Duncan (1991) 53 Cal.3d 955 [281 Cal.Rptr. 273, 810 P.2d 131] ......... 253, 258, 259 People v. Durham (1969) 70 Cal.2d 171 [74 Cal.Rptr. 262, 449 P.2d 198] ...... 0.2 eee ee ee 86 People v. Edelbacher (1989) AT Cal.3d 983 [254 Cal.Rptr. 586, 766 P.2d 1] .........--.---- 280, 284 People v. Edwards (1991) 54 Cal.3d 787 [1 Cal.Rptr.2d 696, 819 P.2d 436] ...... 120, 210, 214, 217, 218, 220, 221, 239, 253, 258, 259 People v. Eggers (1947) 30 Cal.2d 676 [185 P.2d 1] 2... .eeeeee eee 98, 102 People v. Escobar (1996) 48 Cal.App.4th 999 [55 Cal.Rptr.2d 883] ........-.... 2c eee eee 52 People v. Estep (1996) 42 Cal.App.4th 733 [49 Cal.Rptr.2d 859] 2.0.1... eee eee eee 195 People v. Ewoldt (1994) 7 Cal.4th 380 [27 Cal.Rptr.2d 646] ............-. A8, 52, 70, 79, 81, 143 XXV1 People v. Fairbank (1997) 16 Cal.4th 1223 [69 Cal.Rptr.2d 784, 947 P.2d 1321] .......... 287, 291 People v. Falsetta (1999) 21 Cal.4th 903 [89 Cal.Rptr.2d 847, 986 P.2d 182] ..............0.. 88 People v. Farnam (2002) 28 Cal.4th 107 [121 Cal.Rptr.2d 106, 47 P.3d 988] .......0........ 288 People v. Fauber (1992) 2 Cal.4th 792 [9 Cal.Rptr.2d 24, 831 P.2d 249] 1.0.2.2... eee 291 People v. Fierro (1991) 1 Cal.4th 173 [3 Cal.Rptr.2d 426, 821 P.2d 1302] ............00.5. 217 People v. Forte (1988) 204 Cal.App.3d 1317 [251 Cal.Rptr. 855]... 0.eee eee 260 People v. Foster (2010) 50 Cal.4th 1301 [242 Cal.Rptr.3d 658, 242 P.2d 105] ...... 69, 70, 73, 75, 76, 267, 270, 297 People v. Foster (2010) 50 Cal.4th 1301 [242 Cal.Rptr.3d 658, 242 P.2d 105] ...........4.. 297 People v. Garceau (1993) . 6 Cal.4th 140 [24 Cal.Rptr.2d 664, 862 P.2d 664] .............. 87, 144 People v. Ghent (1987) 43 Cal.3d 739 [239 Cal.Rptr. 82, 739 P.2d 1250] ............0.05. 297 People v. Gibson (1976) 56 Cal.App.3d 119 [128 Cal.Rptr. 302] ...... 0.20... 0.02 .0000. 154, 155 People v. Gonzales (1990) 51 Cal.3d 1179 [275 Cal.Rptr. 729, 800 P.2d 1159] ..........0.0..0. 189 People v. Grant (1988) 45 Cal.3d 829 [248 Cal.Rptr. 444, 755 P.2d 894] ......... 253, 260, 262 XXVil People v. Green (1980) 27 Cal.3d 1 [164 Cal.Rptr. 1, 609 P.2d 468] .............0.00.0.0.0. 111 People yv. Guerrero (1976) 16 Cal.3d 719 [129 Cal.Rptr. 166, 548 P.2d 366] ...............00.0. 86 People v. Gurule (2002) 28 Cal.4th 557 [123 Cal.Rptr.2d 345, 51 P.3d 224] 2.0.0.0... 02022 .. 220 People v. Gutierrez (2002) 28 Cal.4th 1083 [124 Cal.Rptr.2d373, 52 P.3d 572] ........... 119, 123 People v. Hardy (1992) 2 Cal.4th 86.[5 Cal.Rptr.2d 796, 825 P.2d 781] ...........-... 118, 132 People v. Harris (1981) 28 Cal.3d 935 [171 Cal.Rptr. 679, 623 P.2d 240] .............0.0.4. 268 People v. Harris (1998) 60 Cal.App.4th 727 [70 Cal.Rptr.2d 689] ......... 0.0.00 eee eee 52, 71 People v. Harvey (1984) 163 Cal.App.3d 90 [208 Cal.Rptr. 910]... 0.6...eee 73 People v. Haskett (1982) 30 Cal.3d 841[180 Cal.Rptr. 640, 640 P.2d 776] ...... 134, 142, 209, 220 People v. Haston (1968) 69 Cal.2d 233 [70 Cal.Rptr. 419, 444 P.2d 91] ...... 0... eee, 75 People v. Hatchett (1944) 63 Cal.App.2d 144 [146 P.2d 469] 2.0.0.2eee, 171 People v. Hawthorne (1992) 4 Cal.4th 43 [14 Cal.Rptr.2d 133, 841 P.2d 118] .........0...0.0.. 288 People v. Hayes (1990) 52 Cal.3d 577 [276 Cal.Rptr. 874, 802 P.2d 376] .......... 253, 260, 262 XXVili People v. Heard (2003) 31 Cal.4th 946 [75 P.3d 53, 4 Cal.Rptr.3d 131] ................0.. 144 People v. Hendricks (1987) 43 Cal.3d 584 [238 Cal.Rptr. 66, 737 P.2d 1350] ...............0.4. 153 People v. Hernandez (1988) AT Cal.3d 315 [253 Cal.Rptr. 199, 763 P.2d 1289] ............. 260, 268 People v. Hill (1998) 17 Cal.4th 800 [72 Cal.Rptr.2d 656, 952 P.2d 673] ........ 168, 258, 271 People v. Hillhouse (2002) 27 Cal.4th 469 [117 Cal-Rptr.2d 45, 40 P.3d 754] ......... 117, 120, 202 People v. Holt (1944) 25 Cal.2d 59 [153 P.2d21]...eeeeee 97, 100 People v. Holt (1997) 15 Cal.4th 619 [63 Cal.Rptr. 782, 937 P.2d 213] ..............005. 132 People v. Holt (1984) 37 Cal.3d 436 [208 Cal.Rptr. 547, 690 P.2d 1207] ............. 70, 270 People v. Hovarter (2008) 44 Cal.4th 983 [81 Cal.Rptr.3d 299, 189 P.3d 300] ................. 81 People v. Hovey (1988) 44 Cal.3d 543 [244 Cal.Rptr. 121, 749 P.2d 776] .................. 102 People v. Howard (2010) 51 Cal.4th 15 [243 P.3d 972, 118 Cal.Rptr.3d 678] ............ 269, 297 People v. Hoyos (2007). Al Cal.4th 872 [63 Cal.Rptr.3d 1, 162 P.3d528] .......... 143, 151, 152 People v. Huber (1986) 181 Cal.App.3d 601 [227 Cal.Rptr. 113] ................0.....0004 73 XXIX People v. Hughes (2002) 27 Cal.4th 287 [116 Cal.Rptr.2d 401, 39 P.3d 432] ............. 74, 180 People v. Hyde (1985) 166 Cal.App.3d 463 [212 Cal.Rptr. 440] ..... 0.0.00. ee eee 122 People v. Jennings (2010) 50 Cal.4th 616 [237 P.3d 474, 114 Cal.Rptr.3d 133] ..... 160, 269, 297 People v. Jennings (1991) 53 Cal.3d 334 [279 Cal.Rptr. 780, 807 P.2d 1009] ............. 195, 196 People v. Johnson (1992) 3 Cal.4th 1183 [14 Cal.Rptr.2d 702, 842 P.2d 1] ...........0-04.. 256 People v. Johnson (1980) 26 Cal.3d 557 [162 Cal.Rptr. 431, 606 P.2d 738] ..............00.. 111 People v. Jones (2011) —_Cal.Rptr.3d [2011 WL 285163] .. 0...eee eee 89 People v. Jones (1998) 17 Cal.4th 279 [70 Cal.Rptr.2d 793, 949 P.2d 890] ............4.. . 254 People v. Jurado (2006) . 38 Cal.4th 72 [41 Cal.Rptr.3d 319, 131 P.3d 400] ..........-.. 110, 244 People v. Kainzrants (1996) 45 Cal.App.4th 1068 [53 Cal.Rptr.2d 207] ...... 2... eee ee eee 196 People v. Karis (1988) 46 Cal. 3d 612 [250 Cal.Rptr. 659, 758 P.2d 1189] ..............-. 156 People v. Kelley (1967) 66 Cal.2d 232 [424 P.2d 947] 0...eeeee ee 92 People v. Kelly (1992) 1 Cal.4th. 495 [3 Cal.Rptr. 677, 822 P.2d 385] ..........0 00000000. 172 XXX People v. Kennedy (2005) 36 Cal.4th 595 [31 Cal.Rptr.3d 160, 115 P.3d 472] ................ 282 People v. Kipp (1998) 18 Cal.4th 349 [75 Cal.Rptr.2d 716, 956 P.2d 1169] ............. 73, 74 People v. Lang (1989) 49 Cal.3d 991 [264 Cal.Rptr. 386, 782 P.2d 627] ............0.006. 272 People v. Larson (Colo. 1978) 194 Colo. 338 [572 P.2d 815] 2...eeeens 173 People v. Lee (2011) Cal.Rptr.3d [2011 WL 651850] ...........2-. 00068, 159, 257 People v. Lee (1987) 43 Cal.3d 666 [238 Cal.Rptr. 406, 738 P.2d 752] 2.2... eee eee 164 People v. Lenart (2004) 32 Cal.4th 1107 [12 Cal.Rptr.3d 592, 88 P.3d 498] ............ 204, 297 People v. Lewis (2001) 25 Cal.4th 610 [106 Cal.Rptr.2d 629, 22 P.3d 392] .............0.. 168 People v. Lewis (2008) 43 Cal.4th 415 [75 Cal.Rptr.3d 588, 181 P.3d 947] .... 110, 124, 201, 203 People v. Linkenaugher (1995) 32 Cal.App.4th 1603 [38 Cal.Rptr.2d 868] ........... 00.20. e ee eee 89 People v. Loker (2008) 44 Cal.4th 691 [80 Cal.Rptr.3d 630, 188 P.3d 580] ............-05. 289 People v. Love (1960) 53 Cal.2d 843 [3 Cal.Rptr. 665, 350 P.2d 705] 22... ee eee 209 People v. Lucero (1988) 44 Cal.3d 1006 [245 Cal.Rptr. 185, 750 P.2d 1342] ............ 102, 145 XXX1 People v. Lunafelix (1985) 168 Cal.App.3d 97 [214 Cal-Rptr. 33] 20.0... eee ee 106 People v. Lynch (2010) 50 Cal.4th 693 [114 Cal.Rptr.3d 63, 237 P.3d 416] ............ 167, 171 People v. Marks (2003) 31 Cal.4th 197 [2 Cal.Rptr.3d 252, 72 P.3d 1222] ..........2 2 eee 96, 218 People v. Marshall (1990) 50 Cal.3d 907 [269 Cal.Rptr. 269, 790 P.2d 676] ..... 10... eee eee eee 273 People v. Marshall (1996) 13 Cal.4th 799 [55 Cal.Rptr.2d 347, 919 P.2d 1280] ...........---. 182 People v. Maurer (1995) 32 Cal.App.4th 1121 [38 Cal.Rptr.2d 335] 2.2.2... 6 ee eee eee eee 164 People v. Mayfield (1997) 14 Cal.4th 668 [60 Cal.Rptr.2d 1, 928 P.2d 485] .......---.-200 06. 99 People v. Medina (1995) 11 Cal.4th 694 [47 Cal.Rptr.2d 165, 906 P.2d 2] ........--. 00s eee 74 People v. Mendes (1950) 35 Cal.2d 537 [219 P.2d 1]...eceee 100 People v. Merkouris (1956) A6 Cal.2d 540 [297 P.2d 999] 1...eeeeen ee 201 People v. Michaels (2002) 28 Cal.4th 486 [122 Cal.Rptr.2d 285, 49 P.3d 1032] .......-... 119, 120 People v. Mills (2010) A8 Cal.4th 158 [106 Cal.Rptr.3d 153, 226 P.3d 276] ........----+-- 144 People v. Mincey (1992) 2 Cal.4th 408 [6 Cal.Rptr.2d 822, 827 P.2d 388] ..........---- 169, 170 People v. Montiel (1993) 5 Cal.4th 877 [ 21 Cal.Rptr.2d 705, 855 P.2d 1277] ......---- ee eee 217 XXXli People v. Moon (2005) 37 Cal.4th 1 [32 Cal.Rptr.3d 894, 117 P.3d 591] .......... 119, 132, 156 People v. Moore (2011) —__Cal.Rptr.3d [2011 WL 322379] ......... 108, 159, 185, 294, 295 People v. Moore (1954) 43 Cal.2d 517 [275 P.2d 485] 1...eee eee 171, 266 People v. Morales (1989) 48 Cal.3d 527 [257 Cal.Rptr. 64, 770 P.2d 244] ....... 117, 119, 201-204 People v. Morris (1988) 46 Cal.3d 1 [249 Cal.Rptr. 119, 756 P.2d 843]... 2... eee eee eee 124 People v. Morrison (2004) 34 Cal.4th 698 [21 Cal.Rptr.3d 682, 101 P.3d 568] ................ 285 People v. Nakahara (2003) 30 Cal.4th 705 [134 Cal.Rptr.2d 223, 68 P.3d 1190] ........... 170, 172 People v. Nicolaus (1991) 54 Cal.3d 551 [286 Cal.Rptr. 628,817 P.2d 893] ...............04. 180 People v. Nieto Benitez (1992) 4 Cal.4th 91 [13 Cal.Rptr.2d 864, 840 P.2d 969] ..............04.. 169 People v. Noguera (1992) 4 Cal.4th 599 [15 Cal.Rptr.2d 400, 842 P.2d 1160] ................ 195 People v. Nottingham (1985) 172 Cal.App.3d 484 [221 Cal.Rptr. 1] .... 6.6... eee eee eee 85, 86 People v. Ochoa (1998) 19 Cal.4th 353 [79 Cai.Rptr.2d 408, 966 P.2d 442] ..............5. 258 People v. Ochoa (2001) 26 Cal.4th 398 [110 Cal.Rptr.2d 324, 28 P.3d 78] 2.0.2.2... 00 e 168 XXXill People v. Odle (1988) — 45 Cal.3d 386 [247 Cal.Rptr. 137, 754 P.2d 184] .........0-. 0 ee 265 People v. Padilla (1995) 11 Cal.4th 891 [47 Cal.Rptr.2d 426, 906 P.2d 388] .........-....-- 273 People v. Panah (2005) 35 Cal.4th 395 [107 P.3d 790, 25 Cal.Rptr.3d 672] ........ 248, 249, 250 People v. Partida (2005) 37 Cal.4th 428 [35 Cal.Rptr.3d 644, 122 P.3d 765] ........-... 151, 157 People vy. Pensinger (1991) 52 Cal.3d 1210 [278 Cal.Rptr. 640, 805 P.2d 899] .......-...-.00-. 102 People v. Perez (1992) (1992) 2 Cal.4th 1117 [9 Cal.Rptr.2d 577, 831 P.2d 1159] .......-. 95,99 People v. Pinholster (1992) 1 Cal.4th 865, 959 [4 Cal.Rptr.2d 765, 824 P.2d 571] .........---.- 146 People v. Poggi (1988) A5 Cal.3d 306 [246 Cal.Rptr. 886, 753 P.2d 1082] ......... 153, 154, 155 People v. Pollock (2004) 32 Cal.4th 1153 [13 Cal.Rptr.3d 34, 89 P.3d 353] .......--..-. 218, 219 People v. Pride (1992) 3 Cal.4th 195 [10 Cal.Rptr.2d 636, 833 P.2d 643] ......-...---. 99, 107 People v. Prince (2005) AO Cal.4th 1179 [156 P.3d 1015, 57 Cal.Rptr.3d 543] ...........-.- 244 People v. Raley (1992) 2 Cal.4th 870 [8 Cal.Rptr.2d 678, 830 P.2d 712] ......--....4-- 99, 106 People v. Ramirez (2006) 39 Cal.4th 398 [46 Cal.Rptr.3d 677, 139 P.3d 64] .........---.---. 156 XXXIV People v Ramos (1982) 30 Cal.3d 553 [180 Cal.Rptr. 266, 639 P.2d 908] ............-00--- 153 People v. Ratliff(1986) 4] Cal.3d 675 [224 Cal.Rptr. 705, 715 P.2d 665] ...........--00--- 105 People v. Rhoden (1972) 6 Cal.3d 519 [99 Cal.Rptr. 751, 492 P.2d 1143] ............0.. 132, 133 People v. Riel (2000) 22 Cal.4th 1153 [96 Cal.Rptr.2d 1, 998 P.2d 969] ..............05. 195 People v. Rittger (1960) 54 Cal.2d 720 [7 Cal.Rptr. 901, 355 P.2d 645] ...........-. 22 106 People v. Rivera (1985) A] Cal.3d 388 [221 Cal.Rptr. 562, 710 P.2d 362] ..........---0 0-0 75 People v. Rivers (1993) 20 Cal.App.4th 1040 [25 Cal.Rptr.2d 602] .......-..06-- 0 eee ee eee 191 People v. Roder (1983) 33 Cal.3d 491 [189 Cal.Rptr. 501, 658 P.2d 1302] ..... 184, 188, 197, 199 People v. Rogers (2006) 39 Cal.4th 826 [48 Cal.Rptr.3d 1, 141 P.3d 135] ...........0--00-. 291 People v. Roldan (2005) 35 Cal.4th 646 [27 Cal.Rptr.3d 360, 110 P.3d 289] ............ 218, 219 People v. Ruiz (1988) 44 Cal.3d 589 [244 Cal.Rptr. 200, 749 P.2d 854] ...........--00-6- 119 People v. Russell (2010) 50 Cal.4th 1228 [117 Cal.Rptr.3d 615, 242 P.3d 68] ...... 110, 117, 131, 132, 180, 249 People v. Salas (1976) 58 Cal.App.3d 460 [129 Cal.Rptr. 871] 2.0... 0.0.2 eee eee eee 163 XXXV People v. Salas (1975) 51 Cal.App.3d 151 [123 Cal.Rptr. 903] .......---- 0 ee eee eee 191, 195 People v. Salcido (2008) 44 Cal.4th 93 [79 Cal.Rptr.3d 54, 186 P.3d 437] .......... 143, 151, 152 People v. Sanchez (1995) 12 Cal.4th 1 [47 Cal.Rptr.2d 843, 906 P.2d 1129] ..............--4. 99 People v. Sanders (1995) 11 Cal.4th 475 [46 Cal.Rptr.2d 751, 905 P.2d 420] ............ 169, 254 People v. Satchell (1971) . 6 Cal.3d 28 [98 Cal.Rptr. 33, 489 P.2d 1361] .....-..... 2. eee 267 People v. Schader (1969) 71 Cal.2d 761 [80 Cal.Rptr. 1,457 P.2d 841] ........---0 eee eee 92 People v. Scheid (1997) 16 Cal.4th 1 [65 Cal.Rptr.2d 348, 939 P.2d 748] ..........-.-. 152, 156 People v. Schmeck (2005) 37 Cal.4th 240 [33 Cal.Rptr.2d 397, 118 P.3d 451] ............ 278, 279 People v. Seaton (2001) 26 Cal.4th. 598 [110 Cal.Rptr.2d 441, 28 P.3d 175] ....-..-...--05. 172 People v. Shoals (1992) 8 Cal.App.4th 475 [10 Cal.Rptr.2d 296] .......... 6. eee ee eee eee 267 People v. Silva (2001) 25 Cal.4th 345 [106 Cal.Rptr.2d 93, 21 P.3d 769] ......-..22.- 00 e- 96 People v. Sims (1993) 5 Cal.4th 405 [20 Cal.Rptr.2d 537, 853 P.2d 992] ...........--.4-- 204 People v. Smith (2005) 35 Cal.4th 334 [25 Cal.Rptr.3d 554, 107 P.3d 229] .... 134, 142, 220, 221 XXXVI People v. Solomon (2010) 49 Cal.4th 792 [112 Cal.Rptr.3d 244, 234 P.3d 501] .........--.. 97,99 People v. Stanley (1967) 67 Cal.2d 812 [63 Cal.Rptr. 825, 433 P.2d 913] .......... cee eee eee 71 People v. Stanley (1995) 10 Cal.4th 764 [42 Cal.Rptr.2d 543, 897 P.2d 481] ............ 118, 221 People v. Staten (2000) 24 Cal.4th 434 [101 Cal.Rptr.2d 213, 11 P.3d 968] ............ 152, 220 People v. Stevens (2007) Al Cal.4th 182 [59 Cal.Rptr.3d 196, 158 P.3d 763] 111, 123, 200, 202-206 People v. Stewart (1983) 145 Cal.App.3d 967 [193 Cal.Rptr. 799]... 0... eee eee eee 197 People v. Sturm (2006) 37 Cal.4th 1218 [39 Cal.Rptr.3d 7999, 129 P.3d 10] .............-.. 271 People v. Sully (1991) 53 Cal.3d 1195 [283 Cal.Rptr. 144, 812 P.2d 163] .......-......20.. 74 People v. Taylor (2010) 48 Cal.4th 574 [108 Cal.Rptr.3d 87,229 P.3d 12] ......... 167, 171, 208 People v. Taylor (2001) 26 Cal.4th 1155 [113 Cal.Rptr.2d 827, 34 P.3d 937] ............... 218 People v. Taylor (1990) 52 Cal.3d 719 [276 Cal.Rptr. 391, 801 P.2d 1142] ................. 295 People v. Thomas (1945) 25 Cal.2d 880 [156 P.2d 7] 2.2... 0...cceee 97, 98 People v. Thompson (1980) 27 Cal.3d 303 [165 Cal.Rptr. 289, 611 P.2d 883] ............. 70, 73, 75 XXXVH People v. Thornton (1974) 11 Cal.3d 738 [114 Cal.Rptr. 467, 523 P.2d 267] ............--- 205. 74 _ People v. Tubby (1949) 34 Cal.2d 72 [207 P.2d 51]...eeeeeeens 105 People v. Turner (1984) 37 Cal.3d 302 [208 Cal.Rptr. 196, 690 P.2d 669] .......... 151, 153, 156 People v. Turner (1990) 50 Cal.3d 668 [268 Cal.Rptr. 706, 789 P.2d 887] ..........--000 0. 194 People v. Vasquez (1972) 29 Cal.App.3d 81 [105 Cal.Rptr. 181] .....-. 2. eee eee ee eee 164 People v. Verdugo (2010) 50 Cal.4th 263 [113Cal.Rptr.3d 803, 236 P.3d 1035] ........-..-..- 244 People v. Vieira (2005) 35 Cal.4th 264 [25 Cal.Rptr.3d 337, 106 P.3d 990] .............--- 152 People v. Visciotti (1992) 2 Cal.4th 1 [5 Cal.Rptr.2d 495, 825 P.2d 388] ...........-.--2-0-- 253 People v. Waidla (2000) 22 Cal.4th 690 [94 Cal.Rptr.2d 396, 996 P.2d 46] ..........2---0 08 91 People v. Wash (1993) 6 Cal.4th 215 [24 Cal.Rptr.2d 421, 861 P.2d 1107] ...........--..- 218 People v. Watson (1956) 46 Cal.2d 818 [299 P.2d 243] 2... ceceeee ee 93, 158 People v. Webb (1993) 6 Cal. 4th 494 [24 Cal.Rptr.2d 779, 862 P.2d 779] ..........200-05- 254 People v. Wein (1977) 69 Cal.App.3d 79 [137 CalRptr. 814] .. 0.0... eee eee eee eee 74 XXXVIil People v. Welch (1999) 20 Cal.4th 701 [85 Cal.Rptr.2d 203, 976 P.2d 754] ................ 264 People v. Westlake (1899) 124 Cal. 452 [57 P. 465] 0...eceee 196 People v. Wharton (1991) 53 Cal.3d 522 [280 Cal.Rptr. 631, 809 P.2d 290] ........ 2.0... eee, 98, 102 People v. Wilson (1992) 3 Cal.4th 926 [13 Cal.Rptr.2d 259, 838 P.2d 1212] ............ 195, 198 People v. Wilson (2005) 36 Cal.4th 309 [30 Cal.Rptr.3d 513, 114 P.3d 758] .............00. 211 People v. Wolff(1964) 61 Cal.2d 795 [40 Cal.Rptr. 271, 394 P.2d 959] 2.0... eee 98 People v. Wright (1988) 45 Cal.3d 1126 [248 Cal.Rptr. 600, 755 P.2d 1049] ............ 169, 172 People v. Zamudio (2008) 43 Cal.4th 327 [75 Cal.Rptr.3d 289, 181 P.3d 105] .............0.. 281 People v. Zapien (1993) 4 Cal.4th 929 [17 Cal.Rptr.2d 122, 846 P.2d 704] .............6.4. 217 Renner v. State (Ga. 1990) 260 Ga. 515 [397 S.E.2d 683] 00.00.eee 173 Rufo v. Simpson (2001) 86 Cal.App.4th 573 [103 Cal.Rptr.2d 492] 2.0.2.0... eee eee 83 Salazar v. State (Tex.Crim.App. 2002) 90 S.W.3d 330 2...cctet nes 236, 238, 239 State v. Bone (lowa 1988) 429 N.W.2d 1230.eeeen eens 173 State v. Cathey (Kan. 1987) 24 Kan. 715 [741 P.2d 738] 1.0...eee 173, 174 XXXIX State v. Grant (S.C. 1980) 275 S.C. 404 [272 S.E.2d 169]...eens 173 State v. Hatten (Mont. 1999) 297 Mont. 127 [991 P.2d 939] 2...eeeee eee 173 State v. Nelson (Mont. 2002) 310 Mont. 71 [48 P.3d 739]...0.eeeee eee 174 State v. Reed (Wash.App.1979) 25 Wash.App. 46 [604 P.2d 1330]... 0...eeeee 173 State v. Stilling (Or. 1979) 285 Or. 293 [590 P.2d 1223] 2...eeeeee 174 State v. Wrenn (Idaho 1978) 99 Idaho 506 [584 P.2d 1231] 2...eceee 173 Topanga Assn. for a Scenic Commty v. Cty. ofLos Angeles (1974) 11 Cal.3d 506 [113 Cal.Rptr. 836,522 P.2d 12] ...............0.4. 292 Young v. State (Okla. 1999) 992 P.2d 332 Looeteen eenseee ee 235 CONSTITUTIONS California Constitution Art. 1, §§ Lecceeee ete nee ees 95 Teceene eee eens . passim Seccece tee t ete e nee 110 Qceee ee eee tenet eee 109 LD Llceeeeee ee passim 16 Loceee eet teens passim apassim D4ceeteen ees 209, 210 United States Constitution Amendment V .. 0.2.0...eenspassim xl Amendment VI ..... 0... ceeceepassim Amendment VII... 0.0.0... eeeeee eee passim Amendment XIV ..... 02.0.0... c eee ee eee eee passim STATE STATUTES California Statutes Evidence Code 048,77, 142, 144, 151 eo48, 142-144, 151, 209, 211 §352 2... 48, 52, 53, 67, 88, 143, 150-152, 156, 157, 209, 211, 220 $520 ooo e cece eee e eee eceeeetenecueeenetteneetinees 296 SLO oo eee eee e cence eee eeeteeeeseees 47, 69, 70, 143 §1101(a) oe cece eee cece eect eee eee ete este eeneeeeeee. 69 S11O1(b) oo. eee eee cece eee e ee eees 50, 51, 53, 69, 75, 93, 286 87, 88 Penal Code S187 occ ccc cece ccc ueeeeeeeeeeeeseveeeetsetreubneneeeeees 4 S189 occ cece cece ee ee eee eeeeeteveeeeeeereeeerennn ees 102 8190.2 occ c ccc e eee ccueeueeeeeeteeeeuueeeeeerteenees 280, 281 §190.2(a) (3) occ ccc cece eee eee eee ee sect teteeteeresees 5 §190.2(a) (15) .. 0.0... 2, 5, 109, 118, 126, 177, 199, 203, 205, 281 §190.3 .......0. 6, 216, 217, 219, 257-259, 266, 281, 288, 290, 293 §190.3(a) occ cece cece cence et eceeeeeeeees 210, 220, 281, 282 190.4 occ cece ccc e eve eee eeeeeeeeeeeeeeetrerennbeneeees 273 8190.4 (€) oc ccc cece cee cceeceueeeeeeeevetttuveeverenneed 7,274 80 §243(E\1) oo ec cc ee cee cece eee e eee etneeeeee teens 80 §273.5(A) occ cece cece cece ec ee sees es ecbeetbeeetreeeees 80 $1054 eee cece cece eee cee eevee eeeeeeneeerreeues 112 $1158 (A) oo ccc cece ee cece eee ceeeeeeeeeeeterervennnnesees 295 81170 (C) cee cee cece ce ccee eee eeeeereeeeteeeeteevereneees 292 Sy5 §12001.6 ooo ccc cece cece cece eeeeeeeeeesteeeeeeteteeenneeeees 5 §12022.5 (A) occ cece cece cece ee eeeeeeesttteeeeeteeeeeeeteres 5 xli Title 15, Cal. Code Regs., §§ 2280 et seq. 0...eee tenes 293 JURY INSTRUCTIONS CALJIC LOO 0.eeeeee teen es 190 7k0 168 QOL Liceee teeta 168, 182, 185, 195 7 181, 195 7 172, 180 07180 700190, 191 QV Lettetenes 190, 191, 193 22D Leeneen eens 190, 192, 195 0700a190, 193, 194, 195 ow 66 QL Leete ene n ees 158-160, 163-166, 190, 195 in 160, 163, 166, 167, 169, 170, 175, 180, 182, 190 2.90 Loic cee eee eens 181, 185, 195, 196, 198 8.00 2... eee eee eeeLecce eee eee eee eee 161 161 +161 A 79, 94, 130, 161, 163 B25ceeens 115, 118, 126, 130-133, 161 B30oceeeeet 94, 161 A161 S 94, 161 BBLS Lokeee eee nee 116, 122, 126, 127, 129-131 a185 185 rr271 B85eeevce c cence cece eeee 266, 268 6287 266, 268, 287 8.88 Lee eee eee 251, 253, 254, 256, 258-262, 283, 289 xl OTHER Blume, Ten Years ofPayne: Victim Impact Evidence in Capital Cases (2003) 88 Cornell L-Rev. 257 2.2...eeeees 213 Garvey, Aggravation and Mitigation in Capital Cases; What do Jurors Think? 98 Columbia L.Rev. 1538 2... 0.0...eee 264 LaFave, SUBSTANTIVE CRIMINAL LAW (2nd ed. 2003) Vol. 2, § 14.7(8) 0.e nee eee eens 179 M. Cammack, Admissibility ofEvidence to Prove Undisputed Facts: a Comparison ofthe California Evidence Code § 210 and Federal Rule of Evidence 401 36 Sw. U.L.Rev. 879 (2008) 2.0.0.0... cee eee eee 77 2 Wigmore (Chadbourn rev. ed. 1979) § 300 ........ 6. eee eee eee 79 I Wigmore, Evidence (3d ed. 1940) §§ 193, 194..........-------0055 91 Note, Zhe Presumption ofLife; A Starting Pointfor a Due Process Analysis ofCapital Sentencing (1984) 94 Yale. L.J.352 1.0.2... . eee eee 268 89 A.L.R.2d 1140, Homicide: What constitutes “lying-in-wait” ...... 118 3 Oxford English Dict. (2d ed. 1989) p. 240 ..... 00... 2. eee eee 217 Webster’s New World Dict. (3d College ed. 1989) p. 1336 .......... 259 Haney & Lynch, Comprehending Life and Death Matters; A Preliminary Study ofCalifornia’s Capital Penalty Instructions (1994) 18 Law & Human Behavior 411 0... etenet eeeenee 263 Haneyet al, Deciding to Take a Life: Capital Juries, Sentencing Instructions, and the Jurisprudence ofDeath (1994) J. Soc. Iss., vol. 50, NO.2.) oenenee teen een eee 263 xiii INTRODUCTION Appellant, Micky Cage, was convicted and sentenced to death for the murders of his mother-in-law, Brunilda Montanez, and her 16-year-old son, David Montanez, in Novemberof 1998. The physical evidence and several items of circumstantial evidence connected appellant to the homicides. Jurors could, therefore, conclude that appellant shot the victims. The evidence did not, however, establish that these had been premeditated and deliberate first degree murders. Appellant’s first degree murder convictions and sentence of death had moreto do with the testimony abouthislife history and general character than the evidence about his actions on November 9, 1998. In the guilt phase oftrial, the prosecution was allowedto introduce detailed testimony about 14 other (for the most part unadjudicated) crimes and misdeeds. Appellant’s wife, Clari, and his daughter, Vallerie, recounted the numerousbeatings and humiliations appellant had inflicted on them over the course of 14 years prior to the homicides. The ostensible purpose wasto establish intent, identity and a motive for the capital crimes. In reality the testimony wasnot relevant for any of these reasons. It was, rather, classic propensity evidence havinglittle or no bearing on any of the prosecution’s stated purposes. (See Argument I.) The abundance of propensity evidence persuaded jurors to overlook the logical gapsin the state’s case forfirst degree murder (see ArgumentII), as well as the insufficiency of the evidence supporting the lying-in-wait special circumstance. (See Argument III.) The evidence of appellant’s prior crimes and unadjudicated criminal conduct was unduly inflammatory for several reasons andits inclusion in the guilt phase of a capital trial was wholly inappropriate. Domestic violence is an emotional topic, and a young woman anda child subjected to years of abuse were sure to viewed sympathetically by the jury. As jurors were aware, Clari and Vallerie were not only the direct victims of appellant’s past crimes but also the survivors of the murder victims. Throughtheir guilt phase testimony the jury received what wasessentially “victim impact” evidence. Clari related how she learned of her mother’s and brother’s murders, describing not only her intense grief and shock but the like responses of the extended family. (See Argument V.) An excessive numberof gruesome photographs of the crime scene and autopsies further inflamed the situation, adding horrific visual images to an already emotional case. (See Argument VI.) The confusing and inadequate jury instructions pertaining to first degree murder, and the Penal Code section 190.2, subsection (a)(15) special circumstance, failed to clarify the jurors’ tasks under the law. (See Arguments IV and X.) Finally, several of the guilt phaseinstructions lightened the prosecution’s burden ofproof and underminedthe constitutional requirement that criminal convictions be based on proof beyonda reasonable doubt. (See ArgumentIX.) Having found appellant guilty of first degree murder based on the evidence of his unsavory history with the victims’ family, the jury was virtually certain to recommenddeath as the appropriate sentence. Any doubt in this regard was eliminated after the jury heard additional, improper victim impact testimony in the penalty phase. (See Argument XI.) Thetrial court’s refusal to make defense counsel’s requested modifications to the penalty phase instructions, and the multiple flaws in the instructions given, madethis outcomea near certainty. (See Arguments XII through XV.) For all of the reasons discussed herein, appellant’s convictions and sentence of death must be reversed. IN THE SUPREME COURT OF THE STATE OF CALIFORNIA PEOPLE OF THE STATE OF CALIFORNIA,) ) Supreme Court Plaintiff and Respondent, ) Crim. 8120583 ) Vv. ) Riverside County ) Superior Court No. MICKY RAY CAGE, ) RIF 083394 ) Defendant and Appellant. ) APPELLANT’S OPENING BRIEF (Death Penalty Case) STATEMENT OF APPEALABILITY This is an appeal from a judgmentof death entered by the Riverside County Superior Court on November14, 2003. (13 CT 3676-3678.) Appeal is automatic pursuant to Penal Code section 1239.' STATEMENT OF THE CASE On November12, 1998, a felony complaint wasfiled charging appellant Micky Ray Cage with two counts of murderin violation of Penal Codesection 187, in the intentional killings of victims Brunilda Montanez 1 All statutory references are to the California Penal Code unless otherwise noted. and David Burgos. (1 CT 1.) Three special circumstances werealleged in connection with the two murder counts. With respect to Counts I andII, the complaint alleged that appellant killed the victims while lying in wait within the meaning of Section 190.2(a)(15). Count IT (pertaining to victim David Burgos) further alleged a “multiple murder” special circumstance within the meaning of Section 190.2(a)(3). (1 CT 2.) Personal firearm use and weapon use allegations pursuant to Sections 12022.5(a) and 1192.7(c)(8) were alleged in connection with Counts I and II. (1 CT 2.) Count Icharged appellant with a violation of Section 12021(a)(1) (felon in possession of a firearm) within the meaning of Penal Code Section 12001.6. (/d.) Appellant was arraigned on November16, 1998. (1 CT 4.) The Conflicts Defense Panel (“CDP”) was appointed to represent appellant after the Riverside County Public Defender’s Office declared a conflict of interest. (1 CT 5.) CDP attorney Peter Scalisi was subsequently assigned to the case. (See 1 CT 5.) On March 23, 1999, the People filed a Notice of Intention to Seek - Capital Punishment. (1 CT 12-13.) Appellant was held to answerfor the charges following a preliminary hearing held on July 7, 1999. (1 CT 44; 51-152.) The same charges were filed in an information on July 19, 1999. (1 CT 46-48.) Appellant was arraigned on the information on July 20, 1999, and entered pleas of not guilty to all charges and denied all enhancementallegations. (/d.) On September1, 2000, the court granted appellant’s request to substitute retained attorney Gary Olive in place of his two appointed lawyers, Exum and Scalisi. (1 CT 197.) On September 1, 2000, the People filed a Notice of Evidence to be Introduced in Aggravation During Penalty Phase Pursuant to Section 190.3 listing a total of four items of evidence in aggravation: three previous incidents and the facts and circumstancesofthe instant offenses. (1 CT 195-196.) On September 22, 2000, the People filed an Amended Notice adding three additional unadjudicated incidents. (1 CT 200.) On August 13, 2001, the People filed an another “Amended Notice of Evidence to be Introduced in Aggravation.” * (2 CT 299.) The Amended Noticefiled on August 13, 2001, incorporated the incidents listed in the previousfilings, as well as new items in aggravation, for a total of eleven. (2 CT 299.) On July 31, 2003, a jury trial began before the Honorable Dennis Mc Conaghy. (2 CT 550.) Jury selection concluded on August 18, 2003. (13 CT 3447.) On August 19, 2003, the prosecution began presenting evidence This is the second documenttitled “Amended Notice of Evidence in Aggravation.” It includes additional incidents notlisted in the previously filed “Amended Notice of Evidence in Aggravation.” (Compare | CT 200 with 2 CT 299.) in the guilt phase oftrial. (13 CT 3452.) The presentation of evidence and the arguments of counsel concluded on September 3, 2003, and the jury began deliberations that afternoon. (13 CT 3520.) On September4, 2003, the jury found appellant guilty of first degree murder as charged in the information. (3 CT 3522.) The jury found true the three alleged special circumstances, and further found true the personal use of a firearm and felon in possession enhancements. (/d.) The penalty phase began on September 11, 2003. (13 CT 3578.) The presentation of evidence: and the arguments of counsel concluded on September 22, 2003. (13 CT 3594.) The jury retired to begin deliberations at 1:50 p.m. on September 22, 2003. (/d.) The jury announcedthat they had reached a verdict just before adjourning for the evening at approximately 3:50 p.m. (13 CT 3620.) The court ordered the verdict sealed and retained in the custody of the clerk. (13 CT 3620.) On September 23, 2003, the jury returned to the courtroom andthe verdict of death was announced. (13 CT 3620.) The jury was polled and affirmed the verdict. ( 13 CT 3620.) On September 23, 2003, the trial court denied appellant’s motion for new trial, and also denied the automatic request to modify the verdict of death pursuant to Penal Code §190.4(e). (13 CT 3650.) Thetrial court imposedthe death penalty for the first degree murder charged in CountI of the information. The court also imposed the death penalty for the first degree murder charged in CountII of the information, stating that the sentence in Count II was to run concurrent. (13 CT 3686.) Sentence on CountIII was stayed. (13 CT 3684, 3686.) STATEMENT OF THE FACTS The Guilt Phase Evidence and Testimony. A. Appellant’s History with the Victims and Their Family. In Novemberof 1998, Brunilda (“Bruni”) Montanez lived in a single family home located at 9897 Deercreek Road in Moreno Valley, California. (6 RT 776.) Two of Bruni’s three children lived with her. Her son Richard (“Richie”) Burgos was approximately 28 years-old, but lived with Bruni because he was mildly mentally retarded and incapable of caring for himself. (6 RT 845.) Bruni’s youngest child, 16 year-old David Montanez, also lived in the home. (6 RT 922.) Bruni’s eldest child was a daughter, Claribel (“Clari”) Burgos, who was arounda year older than Richie. (See 6 RT 846; 14 RT 1927.) In November 1998, Clari was married to appellant, Micky Cage. (6 RT 789.) Clari and appellant lived near Bruni in an apartment they shared with their two children: their daughter, 11 year old Vallerie Cage; and, a son, Micky Jr., who wasnearly three. (See 6 RT 791; 798-799; 807.) Over the courseoftrial, the jury heard extensive testimony covering the history of appellant’s relationship with the Burgos family. Appellant and Clari were 14 4 years old when they met in Long Beach, California in 1984. (6 RT 789-790.) Appellant had been having problems at home, and a couple months after he met Clari he movedinto Bruni’s house. (6 RT 791.) In December of 1985, Clari and appellant had a daughter, Vallerie Cage. id.) The couple married in 1989, and their son, Micky Jr., was born in Decemberof 1994. (6 RT 798-799.) While appellant and Clari were together for the better part of fourteen years, their relationship was volatile. Over defense objection, the prosecution introduced a quantity of testimony recounting events which occurred between 1991 to 1998. (6 RT 789-816; 854-860. See Argument I.) Most ofthese were unadjudicated incidents of appellant’s abusive and violent treatment of Clari and Vallerie.* B. Clari’s Decision to Leave Appellant. By October of 1998, Clari was secretly planning to leave. Appellant had becomeincreasingly unstable and suspicious. (6 RT 811.) He refused 3 Pursuant to a stipulation between the parties, the jury was told that appellant was convicted of a felony prior to November 9, 1998. (11 RT 1547-1548.) The jury was not specifically told the underlying facts of the offense. However, following Clari’s testimony, jurors may have surmised the conviction involved a domestic assault. (See ArgumentI, C (3)(g).) 9 to leave Clari alone with the children, and accompanied her to and from work each day. Appellant often kept Clari awake all night arguing. (6 RT 812.) He made threats about what he would doif she ever left him, and repeatedly told her he would kill her entire family. Early on the morning of Thursday, October 15, 1998, Clari was driving on the freeway on her way to work. Appellant accompaniedher as usual, sleeping off and on in the backseat while she drove. (6 RT 813.) Whenappellant asked Clari for gas money, she replied that she had no cash. Appellant appeared to go back to sleep briefly. All of a sudden appellant said, “I know you have money.” Hereachedover from the backseat, grabbed Clari’s purse and threw it out of the car window. (6 RT 815-816.) Clari stoppedto retrieve the purse, and set out again. Appellant grabbed the purse and threw it out onto the freeway a second time. (/d.) This time Clari did not go back to get the purse. She drove to work, went inside, and waited until appellant left the parking lot. Then she called Bruni and asked for her help. (6 RT 816.) Bruni picked up Clari and the children. (6 RT 817.) She found them a temporary place to stay where appellant would not think to look for them. A few days later, on Sunday, October 18, 1998, Bruni sent her daughter and two grandchildren to live with herrelatives in Puerto Rico. (6 RT 823; 827.) 10 In October and Novemberof 1998, Kevin Neal and Jason Tipton lived in apartment 269 at the El Dorado Point apartment complex on Calle Sombra. Appellant lived directly upstairs in apartment 270. The three men often spent weekends together having barbeque, drinking, smoking, and playing dominoes. (7 RT 959-960; 978.) Jason Tipton testified that appellant was upsetafter his wife left with the children. (7 RT 965-966.) * Appellant wasparticularly anxiousto find his son. According to Tipton, appellant said he’d like to put a gun to his mother-in-law’s head to make her tell him where Clari and the kids were. (/d.) Tipton also heard appellant say about his mother-in-law, “I should bust a cap in her ass, and she’s going to call the cops anyway.” (7 RT 965-966.) About one week before November 10, 1998, appellant talked about how he wantedto go to his wife’s mother and get her to tell him where they were. Appellant said he would put a gun to her head. Tipton stated that he had beensitting in the Dodge Dart and listening to music with appellant on the Saturday or Sunday before the crimes when appellant said, “I feel like doing something to Clari’s mom to Tipton testified at the preliminary hearing in July of 1999. (See 1 CT 93-128.) He died in an accident before appellant’s trial began. (See 2 RT 333; Court’s Exh. 1.) The court found that Tipton was an unavailable witness and, over defense objection, permitted his preliminary hearing testimony to be read to the jury. (See 7 RT 959-994.) 11 get my son back.” (7 RT 965-966.) ° C. Events Preceding the Crimes on November 9, 1998. Bruni’s sister-in-law Carmen Burgos, and Carmen’s husband Alfredo, often spent time at Bruni’s home. The couple stayed at the house with Bruni and her family on the weekend ofNovember 7" and 8". They helped Bruni with household chores and some homerepairs. (6 RT 872- 873.) Because Bruni had the day off on Monday, November9, 1998, Carmen and Alfredo spent the day with her and stayed for dinner on Mondayevening. (6 RT 875-876.) After dinner, David Burgos went upstairs to his room to study and listen to music. (6 RT 877.) At approximately 7:30 p.m., Richie left the house with his friend and next-door neighbor, Steve Phipps. (/d.) Steve and Richie wentto play pool and watch a football gameat a local bar, Bahama Mama’s. (6 RT 863.) Carmen and Alfredo watchedtelevision and chatted with Bruni for a while, andleft at approximately 9:00 p.m. (6 RT 877.) Appellant spent the evening ofNovember 9" (from around 5:00 p.m.) playing dominoes, drinking, and smoking dope with downstairs In the penalty phase, appellant’s mother, Emly Farmer,testified about going to visit him after Clari and the children left. Appellant was dirty and disheveled. He seemed disoriented, and told her that he had not been taking his medication. (15 RT 2130-2131.) 12 neighbors Jason Tipton and Kevin Neal. (7 RT 970-971; 1001-1002.) Tipton remembered seeing appellant drinking a 40 ounce can of malt liquor. In addition, all the men dranktall glasses of vodka mixed with Sprite or orange juice. (7 RT 972.) Aroundthree days earlier Neal had seen a “shorter than normal” black shotgun in appellant’s apartment. (7 RT 1007-1008.) He identified People’s Exhibit 1 as the gun. (7 RT 1009.) On the evening ofNovember 9", appellant showed them the gun, and “cocked”it to demonstrateits action. (/d.) Appellant also had a bunch ofred shotgun shells with brass endsjust like the shells in People’s Exhibit No. 6. (7 RT 1010-1011.) James (“J.D.”) Sovel drove to appellant’s apartment on the evening ofNovember9th. (1 CT 57-58.) He arrived at approximately 8:40 p.m., but waited a long time, about ten minutes, before appellant appeared and opened the door. (1 CT 63.) Appellant had a beer in his hand and continued drinking throughout the evening. Sovel saw appellant drink twotall glasses of vodka mixed with Squirt soda. According to Sovel, appellant had quite a lot of vodka that evening. (1 CT 65.) ° Sovel played dominoes with Kevin Nealtestified that he himself had been intoxicated to the point of black out on other occasions, but had not been intoxicated to that degree on the evening ofNovember 9th. Neal believed that they also smoked a joint laced with cocaine that night. He did not, however, recall anyone being “totally wasted.” (7 RT 1022-1023.) 13 appellant, Tipton and Neal. (1 CT 59, 64;7 RT 974, 1001.) After the domino game, appellant said he wanted to go visit his wife at his mother-in- law’s home. (1 CT 60.) Sovel lived in an apartment 3 or 4 blocks away from Bruni’s house and agreed to give him a ride. (1 CT 57.) ’ Tipton testified that appellant left the apartment wearing a long black jacket. The coat had a Raiders emblem on the back and came downpast appellant’s knees. (7 RT 975.) Sovel stated that appellant was wearing a black or dark blue nylon “police type” jacket. (1 CT 63.) Appellant brought with him a laundry basketfilled with clothing as well as some other bags of clothes. (1 CT 60-61.) On the ride to Bruni’s house Sovel noticed that appellant was wearing twopairs of pants; a pair of blue sweat pants with another pair ofpants underneath. (1 CT 67.) Sovel knew Bruni’s family because he wasfriendly with their next- door neighbor, Steve Phipps. (1 CT 61.) He and appellant pulled into Bruni’s driveway at approximately 10:40 p.m. U/d.) Both men got out of the car. Appellant wanted the car keys, but Sovel refused because appellant was Riverside County Sheriff's Department (“RCSD”) Officer Jess Gutierrez interviewed Mr. Sovel on November 13, 1998. Attrial, Officer Gutierrez testified that Sovel had died in a car accident in March of 1999. (8 RT 1091-1092.) The details of Officer Gutierrez’s interview of Sovel were not before the jury. Attrial, Gutierrez stated only that Sovel reported giving appellant a ride to Bruni’s house on the evening ofNovember9, 1998. (See 8 RT 1091-1092.) 14 drunk. (1 CT 61, 66.) As Sovel prepared to leave he took one bag of clothing and threw it out of the car. (1 CT 61.) Appellant picked up the bag of clothes. He then walked aroundto the passengerside ofthecar, retrieved the laundry basket from the back seat, and walked to Bruni’s front door. (1 CT 62.) As Sovel backed out of the driveway, he saw that Bruni had opened the door. Appellant was standing on the threshold. As he drove off, Sovel saw appellant go into the house carrying the laundry basket. (1 CT 62.) Sovel never saw appellant again after that night. Ud.) He had no ~ knowledge of the gun being hidden in the laundry basket. He had not seen the gun earlier that evening. (Ubid.) Steve’s sister, Sarah Phipps, was at home in the house next door to Bruni’s. Sometime between 10:30 and 10:45 p.m.,she heard Bruni’s dog bark. (8 RT 1059-1060.) A few minutes later Sarah heard three loud bangs followed by one more loud bang approximately 90 seconds afterwards. (8 RT 1061, 1062-1063.) Sarah looked outside, but saw nothing unusual. (8 RT 1063.) Another neighbor, Adrian Valdez, also heard four loud bangs. (7 RT 934-935.) Mr. Valdez lived near Bruni, on Sycamore Canyon Road near the intersection of Deercreek and Sycamore. (7 RT 936-937.) When he heard the sounds, Mr. Valdez wentoutside to the front of his house to investigate. (/d.) 15 Mr. Valdez saw a male figure walk across Bruni’s front yard. The man took a diagonal path, walking across the intersection and heading toward where Valdez was standing. (7 RT 936-937.) The man washeavily built and had short dark hair. He stood approximately 5' 6" or 5'7"tall, and was wearing a long dark trench coat. (7 RT 943.) It was dark outside, and the shadowsprevented Mr. Valdez from getting a look at the man’s face. (7 RT 942.) As the man walked past Mr. Valdez he raised his hand and said “Hi.” (7 RT 940-941.)® Mr. Valdez returned the greeting, and the man mumbled something unintelligible and continued walking. Ud.) The man had goneonlya little way when Valdez heard what sounded like an alarm going off at Bruni’s house. (7 RT 947.) The man in the trench coat began to run. Mr. Valdez noticed that the man wascarrying a stick-like object (possibly a rifle) underneath his coat. (7 RT 948.) Something in the man’s pockets made a jingling sound as he ran. (7 RT 949.) Richie called Bruni at around 10:30 p.m. (6 RT 864.) He and Steve needed a ride home, and wanted Bruni to come pick them up at Bahama Mama’s. (6 RT 864; 7 RT 907.) Bruni said she would leave right away, 8 Over defense objection, Mr. Valdez testified that the man’s voice did not soundlike a mature male voice, but was rather high-pitched. (7 RT 957.) The prosecution’s lead investigator, Michelle Amicone, testified that appellant’s voice was high-pitched and juvenile, and appellant sounded much youngerthan she had expected. (11 RT 1543.) 16 but she never came. (/d.)’ Richie and Steve called the house at least ten times after Bruni failed to arrive. (7 RT 911.) Richie was worried, and neither he nor Steve had any money. (7 RT 911, 913.) An acquaintance, Curtis Wilhousen, stopped by Bahama Mama’s at around 12:20 a.m. Wilhousen owned a smallcab company, and he agreedto take Richie and Steve home. (7 RT 912-913.) Wilhousen pulled his cab into the driveway of Bruni’s house and waited in the car while Steve and Richie wentinto their respective houses to get some moneyto pay the fare. (7 RT 913-914.) AsRichie approached his house he noticed that the front door was slightly ajar. He went inside and discovered the crime scene. (6 RT 865.) °° Bruni’s body wasin the entryway. Blood, tissue, and brain matter were splattered everywhere, includingall over the front stairs and the walls of the foyer. (See 9 RT 1240-1241.) Richie began screaming. He huggedhis mom, but she was covered in blood and the blood got on him. (6 RT 870.) Richie ran upstairs and foundhis brother. David wasalso dead. Richie hugged David, and then ran to his own bedroom and madea frantic call to Richie testified that when he called the house again looking for Bruni, Micky Cage answered the phone. (6 RT 864.) 10 Attrial, Richie testified: “My mom waslaying — laying there on the floor right by the stairs with her face blown off.” (6 RT 865.) 17 911. (6 RT 865; 871; People’s Exhs. 92 and 93.) D. The Crime Scene Investigation. RCSD(Riverside County Sheriff's Department) Deputy Ronald Heim wasthefirst to arrive at 12:28 a.m. on November10", and other officers arrived within minutes. (9 RT 1231-1233.) Richie was standing in the front yard, screaming and crying hysterically. (9 RT 1233.) He was coveredall over, including his face, with blood and what appeared to be fleshy matter. (9 RT 1234.) It was difficult for the officers to subdue Richie but they eventually managed to get him in the back of a squad car. (9 RT 1235.) Several RCSD investigators processed the crime scene at Bruni’s house and interviewed neighbors. (See 8 RT1106.) Other law enforcement personnel searchedthe area in the direction reportedly taken by the suspect. (8 RT 1131-1132.) Thestreet thatis the first right turn from Sycamore Canyon is Whitewater Road. Whitewater ends in a cul-de-sac, and a short paved pathway on the right hand side of the cul-de-sac leadsto a dirt bridle path. (See 8 RT 1132-1134; 1146-1147.) A Mossberg 12 gauge shotgun was foundjust off the bridle path, concealed under a dense bush approximately 150 feet from the cul-de-sac. (8 RT 1133-1134; People’s Exh. Nos.115-117.) When investigators extricated the gun from the bush, 18 they noticed what looked like blood andtissue inside the barrel. (8 RT 1140-1142,1145.) Onelive roundandonespent casing were foundinside the gun. (8 RT 1142-1144.) More of the same type of shotgun shells were foundat different points along the trail. (8 RT 1133-1134.) Investigators photographed someshoeprints visible in the area where the gun was discovered. (8 RT 1139-40; 1151-1154.) Criminalist Paul Sham subsequently compared the shoe prints with some black boots taken from appellant’s closet. Sham opined that the right boot “could” have made one of the impressions, and that the left boot “probably” madethe other impression. (8 RT 1401.) Firearms analyst Phillip Pelzel examined the Mossberg shotgun, as well as a number of expended shell components, shotgun shells, and slugs. (9 RT 1265; People’s Exh. Nos. 26, 26a through f.) Pelzel performedtest firings of the Mossberg shotgun and comparedthe results to the various materials. (9 RT 1271-1273.) He noted that this gun does not always leave a distinctive mark. (9 RT 1274.) Pelzel concluded, however, that the four shells found inside the house weredefinitely fired from this gun. (9 RT 1287-1288.) The two slugs(one lodged in the wall between Richie’s and David’s roomsand the other found on the floor in David’s room) were “probably” fired from the Mossberg shotgun. (See 9 RT 1271-1276.) 19 E. Appellant’s Arrest and the Evidence Obtained. Based on the condition of the crime scene, Lead Investigator Michelle Amicone suspected that appellant might be violent and dangerous. (11 RT 1530-1532.) Amicone requested that the Emergency Services Team assist in the arrest. (11 RT 1530-1532.) On the morning ofNovember10, 1998, RCSD deputies arrested appellant without incident outside his apartment. Appellant consented to a search of the apartment. (11 RT 1532.) Investigator David Fernandez searched appellant’s apartment. He wasspecifically looking for dark clothing or pants and any weaponsor ammunition. (8 RT 1178.) Fernandez found a black plastic rifle case in the hall closet. (8 RT 1179-1180.) In the master bedroom closet, he found a magazine clip for a handgun. (8 RT 1182.) In addition, he found and removed a pair of boots, a black jacket, and a large purple coat. (8 RT 1183- 1185.) Fernandez also collected some warm ashesthat had been spread out in a flower pot. (8 RT 1186.) The ashes tested negative for the presence of blood. (/d.) Appellant was taken to the Riverside County Sheriff's Station. (9 RT 1192.) There, investigators collected his clothing as evidence. (See 9 RT 1193-1200; and 1204-1220.) Forensic nurse Dawn Cirrito collected 20 swabs from appellant and drew blood for comparison and analysis. (9 RT 1223-1229.) Four items of evidence screened positive for blood: the blue pants appellant was wearing when arrested; the black shorts appellant had worn underneath the pants; a swab taken from the Mossberg shotgun; and, a swab taken from appellant’s left leg. (See 9 RT 1326-1337.) DNA analysis indicated that two stains on appellant’s blue pants (one blood stain and one stain made by humantissue) matched Bruni Montanez. (10 RT 1429-1431.) After all of the evidence had been collected, investigators sent for a tracking dogto try to determine the suspect’s trail leading away from the house. (8 RT 1146.) Appellant’s boxer shorts were used to give the dog the scent to follow. (9 RT 1215-1216.) The dog, Fidelity, picked up the scent in Bruni’s front yard. She followed a path down Sycamore, across the path leadingto the washarea, along the dirt trail, and to the bush where the gun was found. (8 RT 1146-1147.) Fidelity continued along the path, stopping occasionally to “alert” in areas where various items of evidence had been found. (/d.) Eventually she lost the scent at the point where the dirt trail ended in a culde sac. (8 RT 1166.) The Penalty Phase Evidence and Testimony F. Appellant’s post-arrest behavior. Appellant was transported to the Riverside County Sheriffs Station 21 at approximately 10:30 a.m. on the morning of November10, 1998. (12 RT 1656.) Lead Investigator Michelle Amicone had him brought to an interview room at around 5:20 p.m. (12 RT 1657.) Whenshe and Detective Gutierrez entered the room, appellant began behavingstrangely. (12 RT 1658.) '’ Appellant was bouncing up and downin his chair; shaking, shivering, and chattering his teeth. He had a blankstare on his face, which he alternated with “bugging his eyes out” at Amicone. (12 RT 1658.) Whensheasked a question, appellant would open his eyes very wide,raise his eyebrows, and tip his head forward in her direction. (/d.) Appellant had wrapped a blanket around himself. He was sweating, but was also shaking, shivering, chattering his teeth.. Amicone asked appellant “You’re sweating, but you are acting like you’re cold. Do you know what’s going on?” Appellant did not respond directly. Amicone recalled him saying wasthat he didn’t like her, and for her to get out. (12 RT 1658.) Amicone and Gutierrez stayed in the interview room only a short time. (12 RT 1659- 1660.) At some point appellant asked to make a phonecall, stating that he wanted to call 1-800-lawyer. (12 RT 1661.) Amicone got a cell phone, and 1] RCSD employee Cindy Rambo interacted with appellant throughout the day on November 10, 1998, as she was helping to collect the evidence. She described appellant as pleasant and cooperative with her. (13 RT 1858.) 22 she and Gutierrez leftthe room so appellant could makehis call. Amicone observed him from outside the interview room. Appellant picked up the telephone, and turnedit over in his handslookingatit as if he did not know what it was for. He eventually hit a few numbers onthe key pad, sang to himselfa little, and then put the phone down onthetable and sat there. (12 RT 1662.) When she wentin and asked appellant if he had madehiscall, he did not answer. (/d.) Appellant had told Amicone and Gutierrez that he had diabetes. (13 RT 1851.) Gutierrez had a deputy drive appellant to the emergency room of Moreno Valley Medical Center while he followed in an unmarkedcar. Appellant reached the emergency room at 6:40 p.m. (13 RT 1851.) Gutierrez stayed with him for the two hoursthey spent at the hospital, and was present when the doctor examined appellant. (13 RT 1852.) At the hospital appellant did not shiver, shake or act as he had doneatthe station. He displayed no bizarre behavior, and wasalert, attentive, and fully coherent. (13 RT 1853-1854.) Appellant repeatedly asked Gutierrez: “Are you going to take me back?”, and, “Are you going to book me?” (13 RT 1852.) Amicone and Gutierrez tried to interview appellant again after returning from the hospital. (12 RT 1659-1660; 13 RT 853-1854.) Appellant began the shaking all over again. (13 RT 1853-1854.) Appellant 23 immediately invoked his Miranda '” rights and they terminated the interview. (12 RT 1661.) Dr. Steven Green examined appellant in the emergency room. (12 RT 1665.) Dr. Green had been advised that appellant had diabetes. (12 RT 1665.) He took several steps, including obtaining a medical history and testing appellant’s glucose level. (12 RT 1665-1667.) Appellant’s blood glucose level was 367 which is moderately elevated. (12 RT 1666-1667.) An elevated level suggests that the patient has not taken their insulin for a matter of days or weeks. (12 RT 1669-1670.) However, this wasa fairly commonpresentation and was not dangerousorlife threatening. (12 RT 1666-1667.) Dr. Green consulted with appellant, and determined that the appellant had been prescribed the correct amountof insulin. (/d.) Appellant was in the emergency room for over two hours that evening, during which time he was not shaking or chattering his teeth. (12 1669- 1670.) Appellant appeared alert and coherent. (12 RT 1675.) Dr. Green testified that shivering, shaking, and chattering of teeth are symptoms accompanying low blood sugar and would not be experienced bya patient presenting with an elevated blood glucose level. (12 RT 1671; 1675.) Dr. Green knew of no medical condition to account for appellant’s symptoms "2 Miranda vy. Arizona (1966) 384 U.S. 436 [L.Ed.2d 694, 86 S.Ct. 1602]. 24 basedonhis presentation andtest results. (12 RT 1677.) '* He also saw no evidence of psychosis or acute mental illness. (12 RT 1677-1680.) G. The Expert Medical Testimony. The prosecution and the defense each presented a medical expert in the area of diagnostic brain imaging. The focus ofthe testimony was the interpretation of a PET scan ofappellant’s brain taken in October of 2002. 1. Defense expert witness Dr. Chong-Sang “Joseph” Wu. Chong-Sang or “Joseph” Wu, M.D., testified as an expert witness for the defense in the penalty phase. (12 RT 1684-1686.) Dr. Wu is an associate professor at the University of California, Irvine Medical School, andclinical director for UCI Brain Imaging Center. (12 RT 1684-1686.) In his testimony, he explained for the jury the basic principles ofPET scan and its diagnostic benefits for assessing brain function in an individual as compared to MRI or CATscan. (12 RT 1687-1690.) Dr. Wu also described how the procedure is performed. (12 RT 1693-1695.) In Dr. Wu's professional judgment, the PET scan is moresensitive than an MRI in detecting brain injury. (12 RT 1701.) 13 In responseto the prosecutor’s questioning, Dr. Greentestified that shaking, shivering, and/or teeth chattering, would belikely choices of symptomsfor any diabetic wanting to fake a reaction. (12 RT 1672.) 25 The PET scan of appellant’s brain was performed on October3, 2002. (12 RT 1704.) As he would do in all cases, Dr. Wu recommended that appellant be taken off of all psychoactive medicationsfor at least two weeksprior to the scan. V/d.) Dr. Wu opinedthat appellant’s PET scan was consistent with his having suffered a brain injury. (13 RT 1791.) Dr. Wu did not diagnose brain injury solely on the basis of the PET scan. (13 RT 1791.) The diagnosis was confirmedby information from appellant’s mother reporting that appellant had brokenhis jaw in a football game. Dr. Wuexplained how an amountof force strong enough to break the jaw could easily have injured appellant’s brain. (13 RT 1792-1793.) Dr. Wu’s evaluation was similar with respect to schizophrenia. While he was unable to make a firm diagnosis on the basis of the PET scan alone, Dr. Wu found thetest results to be consistent with those seen in other schizophrenic brains. Specifically, he noted the decreasein the activity of the frontal lobe of appellant’s brain. (13 RT 1791; 1802-1803.) Dr. Wu’s conclusions were based on: the PET scan of appellant’s brain; reports written by other physicians over a period of years; recent medication logs; and anecdotal evidence provided by defense counsel and appellant’s mother. Ud.) Dr. Wu had nospecific recollection of seeing reports from other jail or prison doctors diagnosing appellant with schizophrenia. He did 26 rely on a 1993 report prepared for Social Security disability benefits by a Dr. Scanlon. (/bid.) The 1993 report stated that appellant hadclassic symptomsof schizophrenia including delusions and auditory hallucinations. (13 RT 1786.) Further, Dr. Wu had observed appellant’s “flat affect,” another indicator of mental illness or impairment. (13 RT 1802-1803.) Finally, it was particularly significant that appellant was takinglarge doses of the anti-psychotic drug Haldol. (/d.) Thisin itselfwas a very strong indication of schizophrenia. Dr. Wu found it highly unlikely that appellant could be malingering. (13 RT 1786-1787; 1806.) Referring to the medication prescribed for appellant’s schizophrenia, Dr. Wustated: “Thisis the kind of dosage that would knock most people out like a light.” (13 RT 1802-1803.) 2. Prosecution expert witness Dr. Alan Waxman. The prosecution presented the testimony of Dr. Alan Waxman, director ofNuclear Medicine Services at Cedars-Sinai Imaging Medical Group. (14 RT 1981.) Dr. Waxman testified regarding some different uses and medical applications for PET scans. (14 RT 1982-1983.) Dr. Waxman had reviewed the PET scanstaken of appellant at the direction of Dr. Wu. (14 RT 1986.) Dr. Waxman reviewed what were, in his view, some of the weaknesses inherent in the PET scan as a diagnostic measure for brain 27 injury or abnormality. (See 14 RT 1986-1990.) He thentestified about the problems with the imaging methods Dr. Wuusedto evaluate appellant’s brain. (See 14 RT 1990-1992.) Dr. Waxman found no abnormalities in appellant’s brain. (14 RT 1993; 2002.) The “amateurish” program devised by Dr. Wu has producedinaccurate results in this and in many othercases. (14 RT 1992-1993.) Dr. Waxman summarized a numberofways in which Dr. Wu’s methods were deficient and explained howthoseerrors flawed the final analyses. (See 14 RT 1998-2000.) He has reviewed Dr. Wu’s methods with Ph.D.statisticians, and they concur that Dr. Wu’s protocolis flawed. (14 RT 2000.) Having examined Dr. Wu’s methodology, and reviewed his testimony in a large numberof other cases, Dr. Waxman concluded that Dr. Wu could find an abnormality in any brain. (14 RT 2000-2002.) Dr. Waxmantestified that using a PET scanto find or confirm schizophrenia is an interesting investigatory method, but he could notsay if it was useful or accurate. (14 RT 2015-2016.) The fact that appellant was prescribed Haldol and other antipsychotic medication did not alter his interpretation of the PET scan. (14 RT 2021-2024.) Other information such as medication logs or reports from family members could not affect his reading of the PET scan. (14 RT 2024.) Although more information may be helpful in diagnosing schizophrenia, he could not confirm that appellant 28 wasschizophrenic based on the scan. Dr. Waxman’s reading of the scan showed a normalbrain. (14 RT 2025.) H. The Prosecution’s Evidence in Aggravation. 1. The nature and circumstances of the murders and the impact on the victims family, friends And community. The prosecution presented the testimony of four witnesses to describe the impact of the victims deaths. Bruni’s 83 year-old mother, Celena Rodriguez, came from Puerto Ricototestify. (14 RT 1926.) Mrs. Rodriguez described Bruni’s early life in Puerto Rico, and the effect her death has had on their large and close-knit family. (See 14 RT 1827-1830.) Bruni’s sister, Lupe Quiles gave a disturbing account of her shock and horror upon learning of the homicides. (14 RT 1938-1940.) She described in detail cleaning up the blood and bone fragments that were all that remained of her belovedsister, and revealed that she kept a bone fragment she believed had come from Bruni’s face. (14 RT 1941-1942.) Vallerie and Clari also testified about Bruni and David, and the loss of these central figures in their family. (See 15 RT 2086-2091.) Mrs. Quiles and Clari each testified that they had remained extremely depressed since the deaths. (14 RT 1952-1953; 15 RT 2091-2092.) The victim impacttestimonyis set forth in greater detail in the legal 29 2. Appellant’s past crimes and misconduct. a. July 12, 1986 - possession ofa cane. Officer Tyrone Hatfield testified about appellant’s arrest on July 12, 1986. (13 RT 1836.) Officer Hatfield had been onpatrol in a marked police car. He andhis partner drove by a “problem location” on West Summit Street in Long Beach. Appellant and another male named Trevor Baldwin were standing outin front. (/d.) Appellant washolding a broken, wooden walking cane with the crook over his arm. Baldwin held a martial arts baton. (13 RT 1836-1837.) The officers knew appellant and Baldwin, andcitizens had recently contacted police reporting that people in the area had been beaten up with sticks and similar weapons. (13 RT 1838.) The location was also knownfor high traffic in rock cocaine sales. (13 RT 1839.) When Officer Hatfield asked appellant why he had the cane, appellant said his mom was handicapped. Theofficers handcuffed appellant and Baldwin and took them in to the Station for possession of deadly/dangerous weapons. (/d.) Appellant waived his rights and agreed to talk to Officer Hatfield. ([bid.) Appellant said that Baldwin was looking for a guy who owed him $50. Baldwin plannedto beat the guy up if he found him and appellant had gonealongto help if necessary. (13 RT 1840.) challenges to the admission ofthis evidence. (See Argument XI.) 30 b. January 1987 - possession ofafirearm. In 1987 Nancy Icenogle lived at her grandparents home on San MiguelStreet in Paramount, around three blocks away from Bruni and her family. (13 RT 1879-1880.) Icenogle was around 19 yearsold at the time. (13 RT 1880.) She knew Clari and Richie best, and knew appellant through them. (13 RT 1880.) Appellant and Richie Burgos had cometo visit Icenogle during the daytime when her grandparents were not at home. (13 RT 1893.) Icenogle showed appellant and Richie a German Luger 9 mm gunher grandfather brought homeas a souvenir from World War II. (13 RT 1892-1894.) Appellantliked the gun and admiredit. (13 RT 1895.) Appellant had already told Icenogle that some people were after him. (13 RT 1893.) He said, “Nancy, is there any way youcould get us a knife from the kitchen because I’m afraid to walk home.” (13 RT 1897-1898.) Icenogle put the gun back in its leather case. She wentto the kitchen, and when she came back out appellant, Richie, and the gun were gone. (13 RT 1898.) Icenogle called Bruni’s house and spoketo Clari. (/d.) She wascrying andtelling Clari she had to get appellant to bring the gun back. When Icenogle saw appellant later that afternoon he said she wasnot getting the gun back. Appellant said it was his word against hers and she would haveto proveit. 31 (13 RT 1898.) Icenogle’s grandfather eventually discovered that the gun was missing. (13 RT 1899.) Her grandparents confronted her, and she later admitted what had happenedto her grandmother. (/d.) At that time Icenogle’s grandmothercalled the police. They never did get the gun back. (Ibid.) C. April 1987 - threats and assaults against Nancy Icenogle and Willie Hinton. Brandy Field and her younger brother William “Willie” Hinton lived in the neighborhood in Paramount, and they were friendly with Nancy Icenogle, Clari and appellant. (13 RT 1880-1881.) At the time, Willie was approximately 16 or 17 years old. (13 RT 1882.) On April 4, 1987, appellant approached Icenogle and told her that he wantedto talk to Willie. (13 RT 1883.) Appellant said Willie had taken some money from him and he wanted to work it out. (/d.) Icenogle took appellant to Downey, where Willie was staying, which was only around 10 or 15 minutes awaybycar. (13 RT 1883.) When they arrived at the house, the appellant yelled for Willie. (13 RT 1884.) Appellant got out of the car when Willie came outside. He hit Willie on the head, knocking him to the ground. (/d.) Appellant was big and muscularat the time. He was muchbigger than Willie who was small and scrawny. (13 RT 1884.) Appellant put Willie in the car and drove back to Bruni’s house in Paramount. (13 RT 1885.) He 32 took Willie inside the house. (/d.) Appellant and Richie started beating Willie up. (13 RT 1885-1886.) Appellant was using a piece ofwood with a screw ornail sticking out of it. He was hitting Willie all over in the face and in the upper body. (/d.) Willie curled up in a fetal position and was yelling for them to stop. Appellant was yelling at Willie that he needed to die. (13 RT 1885-1886.) Appellant hadto pull the nail out from whereit punctured Willie. (13 RT 1887.) Richie had a doubled up chain and was using that to beat Willie. (/d.) Icenogle was screaming for them to stop. Appellanttold her to shut up and she got hit too. (13 RT 1887.) The nail left a mark on her back but did not break the skin. (13 RT 1888.) Bruni camein and got Richie off; she then put herself in front of Willie. (13 RT 1889.) Bruni made appellantstop hitting Willie. (13 RT 1903.) There were puncture wounds on Willie’s head, face, chest and arms. (13 RT 1900.) He hadbruises all over his body. (/d.) Bruni helped Willie up, nearly carrying him. (13 RT 1889.) She took him to his grandparents’ house. (13 RT 1889.) The police were called and Icenogle spoke to them, although she feared for her safety. (13 RT 1890.) Icenogle wasthreatened a couple dayslater. (/d.) The Orange Avenue Liquor Store was a central hangoutin the neighborhood. (13 RT 1891.) While Icenogle wasthere on April 9th, appellant camein andasked her to come outside. She knew 33 appellant wouldhurt her so she said no. (13 RT 1891.) Appellant began yelling at her. (/d.) He said she wasa liar; she’d ratted on him and he was going to haveto f ---ing kill her. (13 RT 1890.) Icenogle asked the store ownerto help her. (13 RT 1891-1892.) The owner gotappellantto leave, and a few people in the store walked Icenogle home. (13 RT 1892.) d. 1988 - assault and injury to David Burgos. In the guilt phaseoftrial, Clari testified about several episodes of domestic violence by appellant. On one occasion, appellant allegedly beat and kicked the then six-year-old David Burgos. (See 6 RT 792-793.) Appellant kicked David in the head, causing permanentinjury. David repeatedly had severe headaches. (15 RT 2071.) During some episodes, he would have excruciating pain; he would just hold his temples and scream for several minutes at a time. These headaches occurred around once every couple of weeks. (15 RT 2071.) é. April 14, 1988 -felony conviction. The parties stipulated that on April 14, 1988, appellant was convicted of a felony (cocaine sales) and on Nov 7, 1988, was sentenced to a three year prison term. (13 RT 1771.) | f April 29, 1990 - beating ofMary Roosevelt. Mary Denise Roosevelt is the mother of appellant’s other daughter, 34 Felisha Cage, born November 24, 1986. (13 RT 1833-1834.) On April 29, 1990, appellant went to Roosevelt’s house, grabbed her aroundthe neck and choked her. (13 RT 1834.) He socked Roosevelt in the face and threw her to the floor where he kicked herin the face and the stomach. Appellantalso slammedher head into a wall. (13 RT 1834.) g. August 10, 1991 - beating ofClari Burgos and subsequentfelony conviction. Signal Hill Police Officer Steven Owenswentto Clari’s and appellant’s apartment on August 22, 1991, to speak to Clari Burgos abouta reported burglary. (13 RT 1842; 1844-1846.) Clari had red marks on her face and wasvisibly upset. She gave a lengthy statement about events occurring twelve days earlier on August 10, 1991. (13 RT 1843.) Clari gave the officer a kitchen knife with some blood onit, and the clothes she had been wearing on August 10". (/d.) The clothing was very heavily stained with blood. Clari’s cheeks werestill quite swollen andlightly bruised. (13 RT 1844-1846.) Signal Hill Police Officer Gregory Lee Pepoy had accompanied Officer Owens on August 22, 1991, and described appellant’s arrest that day. (13 RT 1848.) Appellant arrivedriding a bicycle. He rodeup to the officers with his hands on the handlebars. When police wentto place appellant under arrest for domestic violence, he began struggling. At the time appellant was large and very muscular. It took three 35 policemento get a hold of appellant. He was finally subdued when Officer Pepoy’s sergeant stepped in and used the carotid hold. (13 RT 1848.) Theparties stipulated that on September 4, 1991, appellant was convicted of a felony (spousal abuse) and wassentencedto a two year prison term. (13 RT 1771.) | h. December8, 1992 - assault of Vallerie Cage. Clari and Vallerie testified about an incident on December8, 1992, they were living on Genuine Risk in Perris. Clari was washing dishesin the kitchen when she heard screaming. She walked into the family room and saw appellant hitting Vallerie with a belt. He was “holding her up ” by one arm with her feet dangling off the ground. (14 RT 2084.) Clari tried to intercede, but appellant pushed her out of the way and went on. Whenthe defendant finished, the witness confronted him and said she didn’t agree with him hitting her like that. 14 RT 2085.) Appellant said “that’s my child and I'll hit her any way I want.”He said he’d use as muchforce as he wanted to. (14 RT 2086.) Vallerie testified appellant had been beating her that day with a belt buckle. She was seven or eight years old the time, and she got the courage to call the police. (14 RT 2051.) She soonregretted calling the police, because she got in worse trouble and wassent to the closet for long periods 36 of time. (14 RT 2052.) Vallerie sometimes spent entire days in the closet, including once on her birthday. (14 RT 2053.) i. 1994 - assault ofRichard Burgos. Vallerie described an incident when she and Richie had a disagreement over who could havethelast ofthe juice. She told appellant, and he picked a fight with Richie and beat him badly. Appellant hit Richie, knocked him down and kicked him in the abdomen.(14 RT 2048-2049.) Richie had to go to hospital, and he came back heavily bandaged. He had lots of severe bruising around his abdomen andsides, covering his entire torso and ribs. (14 RT 2050.) j. June 1994 incident with neighbors. In June of 1994, David Olson was 15 years old. Olson and his family lived at 2746 Genuine Risk Street in Perris, California. (13 RT 1864.) Bruni, David, Richard and Clari were the Olson’s neighbors. (13 RT 1865-1866.) David Olson also knew appellant, and had knownthe family for around four years before the incident. (/d.) One day David Olson went over to Bruni’s house to have Clari tutor him in high school math. (13 RT 1867-1868.) David had asked if appellant was home before going over to Bruni’s. (13 RT 1868-1869.) He knew appellant was angry at him because he had refused to loan appellant a set of free weights. (13 RT 1870.) David 37 Olson left soon after getting to Bruni’s because appellant came home. (/d.) Appellant asked him “What are you doing here?” David wasafraid of appellant, and began “walking backwards”outofthe house. (13 RT 1870.) Appellant started toward David, and then said “I’m not even going to waste my time with you. I’m just going to pick youup andI'll just toss you.” Appellant picked Olsonup bythe seat of his pants and the back ofhis shirt and threw him over/into a hedge. (13 RT 1871.) David’s mother, Irene Olson,testified that appellant told her if she called the police he wouldkill her and her son and burn their house down. (13 RT 1905-1906.) Appellant pulled his pants down andtold her “Thisis what I care about you. Call the police.” (13 RT 1906.) Appellant exposed himself front and back and said “Lick my nuts bitch.” (/d.) David and Irene Olson were inside their house whenthe police arrested appellant. The Olsons heard the sound of breaking glass. (13 RT 1873; 1906.) David looked out and saw appellanttrying to get out of the windowofthe police car. (13 RT 1873.) It took several police officers to pin him down. Appellant was saying “This is the same shit that happened to Rodney King.” id.) Appellant had broken through the right rear window ofthe patrol car, and crawled out of the window and downto the ground. (13 RT 1874.) Appellant was saying that he wanted water. (/d.) David 38 Olson thought the police had sprayed mace in appellant’s face. One officer got a hoseand wasspraying water in appellant’s face, in response to which appellant was saying “Thank you.” (/bid.) David Olson later heard appellant say that if he ever saw Olson’s dad he’d “kill his white ass.” (13 RT 1875.) Appellantlater said he’d “get 18" Street after him.” (/d.) David Olson believed that 18" Street was an LA street gang. His whole family was scared, and theyslept at a friend’s house that night. (/bid.) k, January 1996 - assault ofClari Burgos. Traci Thompson and appellant’s younger brother, Richard Cage, have twin daughters born in 1990. (14 RT 1956; 1963.) Thompson went to Long Beach Memorial Hospital on January 27, 1995, to see Clari. (/d.) Clari’s children were in the waiting room alone, and Thompson broughther sister along to help watch them. (14 RT 1956.) Clari had a big gash in her head. It was “just white meat, and no teeth.” (14 RT 1957-1958.) Thompsondidn’t believe Clari’s story about being assaultedat the market, and she told Clari repeatedly to tell the police the truth. Ud.) She argued with Clari a bit but Clari couldn’t really talk. (14 RT 1957-1958.) Richard told her they should stay out of appellant’s and Clari’s business. (/d.) Thompsondidnottell the police because she knew it would beuselessif 39 Clari didn’t back up her story. (/bid.) l. July 4, 1997 - assault of Vallerie Cage. Traci Thompsonalso testified about an incident that occurred around July 4, 1997. Thompson, Richard Cage,andtheir children, had goneto visit Clari and appellant at their place in Perris. (14 RT 1958-1959.) At dinner, Vallerie hadn’t wanted to eat her vegetables. (/d.) Appellant took Vallerie into her room to discipline her. Thompson followed and listened by the door. (14 RT 1959.) She heard the sounds ofappellant hitting Vallerie. (14 RT 1960-1961.) There was a big “thump” as Vallerie was being slammedinto the wall. (14 RT 1967-1968.) When Vallerie come out ofher room she was crying and shaking, and her nose was bleeding. (14 RT 1961.) Thompson wasvery angry and upset. She told Richard they had to leave, but driving home she changed her mind. (14 RT 1960-1961.) Thompson wasafraid for Vallerie and Clari, and thought they should go back to protect them from appellant. (/d.) When they returned Thompson spoke privately with Clari. Clari said she knew it was wrong what appellant | had done. (14 RT 1961.) I. The Defense Penalty Phase Case. 1. Dr. Boniface Dy. The defense presented the testimony of another physician. Boniface 40 Dy, M.D., was a psychiatrist employed by Riverside County Detention, Jail Mental Health Services. (15 RT 2097.) Dr. Dytestified that he had been seeing appellant once every 25 to 30 days for medication review since June 14, 2000. (15 RT 2098; 2101.) Appellant was currently taking several psychoactive medications: Seroquel, 300 mg, two timesdaily; Zyprexa 10 mg in the a.m. and 20 mgin the p.m.; and Sinequan, 350 mg in the evening. (15 RT 2099.) '° 2. FelishaCage. Appellant’s other daughter, Felisha Cage, testified in the defense case. Atthe time oftrial, Felisha was 16 years old. She never lived with her father, but he called her on occasion and she sometimes wentto visit at | his house. (15 RT 2105.) She recalled going to Magic Mountain, and spending the weekendat appellant’s house when she was around seven years old. (15 RT 2106-2107.) Felisha could notrecall last time she saw appellant outside of court. (15 RT 2107.) Felisha stated that appellant had never been violent toward her. (/d.) 15 Dr. Dy was the second psychiatrist to see appellant. Prior to his handling the case, Dr. Chan Wells had prescribed for appellant: Sinequan, 100 mg in a.m. and p.m.; Haldol 10 mg, two times daily; Cogentin, 1 mg two times daily; insulin medication for diabetes; and, some cold tablets. (15 RT 2099.) 4] 3. Emly Farmer. Appellant’s mother, Emly Farmer, wasthe final defense witness to testify. (15 RT 2112.) Ms. Farmer related how appellant had been diagnosed with diabetes at age nine. (15 RT 21 14.) Appellant had a hard time accepting the limitations of his condition. (/d.) At that time, appellant’s behavior was “fairly decent,” the largest problem she had with him wasgetting him to take his medicine. Appellant was obedient at home but “was missing a lot of school becauseofthe frequent hospitalizations.” (15 RT 2115.) After the diagnosis of diabetes, appellant’s temperament changed. He got upset quickly and cried easily. "° _ Appellant’s grades were very poorbythe time he waseleven or twelve years old. His grades had never been good, and she had worked hard with him just to help him pass his classes. (15 RT 2118.) Appellant had always seemed slowerthan his younger brother Richard, and after the diabetes diagnosis he was slowerstill. (/d.) Ms. Farmer related how, when the boys were aroundtwelve, they had wanted to buy their own school clothes. Ms. Farmer worked extra hours and gave them moneyto go shop Ms. Farmertestified that the endocrinologist told her that studies show a majority of diabetics have major depression. The prosecutor objected on hearsay grounds. The court granted the motion to strike and admonished the jury to disregard the testimony. (15 RT 2115.) 42 for themselves. Appellant was not able to coordinate buying his own clothing and things. (15 RT 2118-2119.) Bythetime appellant was fourteen years old his behavior was “terrible.” (15 RT 2119.) That year he wentto live with the Burgos family. Initially Ms. Farmer did not know where he was. (15 RT 2120.) Ms. Farmerhadrules and discipline in her home. Appellant was defiant, and he would get very upset and angry when confronted. Ms. Farmerstill wanted appellant at home and she did not approveofhis living elsewhere. She tried to get him back homeseveral times. She sought the help of church members who worked with Children’s Services in Long Beach, and even the Long Beach Chief of Police who wasalso a memberofher church. (15 RT 2120-2121.) Sometimes appellant was persuaded to come back home for brief periods of time, but he would then “return to the undisciplined environment”ofthe Burgos’s house. (15 RT 2121.) Ms. Farmerdid not know if appellant ever went to high school. She related how he oncetold her he just couldn’t understand what went on in school. (15 RT 2122.) She tried getting help through a couple of school programs, but appellant never completed them. They went back to doctors who recommended “psychiatry at Harbor UCLA Hospital.” (/d.)'’ Outside the presence and hearing of the jury, the prosecutor 43 Ms. Farmer went on a cruise in November of 1998. She last saw appellant on October28 or 29, 1998. He was dirty and unkempt and seemed distant. (15 RT 2130-2131.) The next time Ms. Farmer saw appellant was around a weekafter the murders when she droveoutto see him at the County Jail in Riverside. (15 RT 2131.) Appellant did not know her. He was trembling, his hands were shaking andhis lips were quivering. Ms. Farmerkept saying “Micky,it’s mom,” and hejust stared at her. (15 RT 2131-2132.) She stayed between 20 and 30 minutes and appellant never acknowledged her. (15 RT 2132.) Ms. Farmer sawappellant around a | weeklater at the next visiting day. He was much the same. He movedhis mouth a few times butthere was no sound coming out. Ms. Farmer was very alarmedat appellant’s condition. She knew something was wrong. (15 RT 2134.) Ms. Farmertestified: “The only time I’ve seen that type of behavior —— or that type of display was at Metropolitan State Hospital.” (15 RT 2132.) When she came back the next time he spoketo her but it was not a complete thought process. (/d.) On the third visit, hestill seemed not to complained that she had been given no discovery about Ms. Farmer seeking psychiatric care for appellant. (15 RT 2122-2123.) Defense counsel stated that he was surprised by this aspect of Ms. Farmer’s testimony, and had not intendedto elicit the information. (/d.) The court cautioned defense counsel not to explore this area further. (15 RT 2123-2124.) 44 recognize her but appeared to be shaking less. (15 RT 2133-2134.) Appellant did not recognizeherfor at least two weeks. (15 RT 2133.) J. The Prosecution’s Evidence in Rebuttal. The prosecutionrecalled Vallerie and Clari to testify to as rebuttal witnesses following the testimony of defense witnesses suggesting that appellant was schizophrenic. (See 15 RT 2146.) Vallerie described - accompanying appellant to the medical evaluations necessary to qualify him for Social Security disability benefits. (15 RT 2148-2150.) According to Vallerie, appellant had enlisted her participation to help him appear“crazy.” In the office, appellant talked about seeing aliens, made strange faces and laughed out of context. Ud.) Appellant wasin fact fully rational and knew what he was doingall of the time. (15 RT 2153.) Clari alsotestified that appellant faked his mentalillness to collect monthly disability benefits. (15 RT 2165-2167.) She stated that appellant bragged aboutit, and only took the prescribed medications when his case was upfor re-evaluation because he knew the doctors would check his blood. (15 RT 2169.) When taking those psychoactive medications, appellantslept all the time. (15 RT 2170.) 45 I. THE TRIAL COURT’S ADMISSION OF IRRELEVANT, CUMULATIVE AND HIGHLY INFLAMMATORYPROPENSITY EVIDENCE DEPRIVED APPELLANTOFHIS STATE AND FEDERAL CONSTITUTIONAL RIGHTS AND WAS ERROR UNDER CALIFORNIA LAW. A. Introduction. The prosecution had physical evidence and circumstantial evidence connecting appellant to the two homicides. However,to obtain a conviction for capital murder, the prosecution needed to convince the jurors not only that appellantkilled the victims but that these were deliberate and premeditated first degree murders. There were no eye-witnesses to what occurred inside Bruni’s house that evening, and the evidencedid not clearly establish that premeditation and deliberation preceded the shootings. The state’s response was to formulate a theory of the case under which evidence from other crimes and misconduct could be introduced to support an inferenceofintent in the killings of Bruni and David. '* The evidenceincluded both adjudicated and unadjudicated incidents and conduct which, although perhaps morally offensive, arguably did not constitute a crime. In the interest of brevity, this entire body of evidence maybe referred to herein as the “prior crimes” or “past crimes.” 46 Appellant had a 14 yearhistory of acting out violently when angry or frustrated. Sadly, his wife and daughter often bore the brunt ofhis irrational rages. According to the prosecution’s theory the murders were inextricably linked to the domestic violence. The prosecution proposedthat appellant’s plan all along had been to dominate and control not just Clari and Vallerie but every memberofthe Burgos/Montanez family. The murders of Bruni and David were, as the prosecution contended,a direct outgrowth of appellant’s larger scheme. Having thus connected the domestic abuse history to the murders, the prosecution arguedthat the past crimes were relevant and admissible under Evidence Code section 1101, subdivision (b) to show identity, intent, and/or motive with respect to the murders. Over defense objection, the jury heard abundant and detailed testimony aboutappellant’s other, dissimilar (and for the mostpart unadjudicated), crimes and misdeeds.Forall of the reasons discussed below, this was classic propensity evidence and was not probative on any disputed issue. The prior crimes evidence hadlittle if any bearing on any of the prosecution’s stated purposes,i.e., to establish intent, identity, or motive. In addition to its lack of relevance, this material was unduly prejudicial for several reasons. Admitting this evidence,particularly under 47 the case’s unusual circumstances, was a clear abuseofthe trial court’s discretion under California law and deprived appellant of fundamentalstate and federal constitutional rights. Appellant’s convictions and sentence of death must therefore be reversed. B. Overview of Legal Claims. Thetrial court abusedits discretion under California law by admitting evidence with no relevance to disputed facts or material issues in the guilt phase. (Evid. Code §§ 210, 350; People v. Alcala (1984) 36 Cal.3d 604, 631-632; People v. Cardenas (1982) 31 Cal.3d 897, 904-905.) '9 Any marginal relevancethis evidence had was vastly outweighed by the inflammatory effect it was certain to have on the jury. (Evid. Code §§352; 1101; People v. Ewoldt (1994) 7 Cal.4th 380, 404.) The admissionofthis irrelevant, cumulative and highly prejudicial evidence deprived appellant of his constitutional rights to due process of law (Hicks v. Oklahoma (1980) 447 U.S. 343), to a fundamentally fair trial (Estelle v. McGuire (1991) 502 U.S. 62, 72), and a reliable determination of the penalty (Beck v. Alabama (1980) 447 U.S. 625, 638.) (U.S. Const. Amends. V, VI, VIII and XVI; Full parallel citations for cases from all of the courts of California, and cases of United States Supreme Court, are set forth in the Table of Authorities rather than in the text so as not to distract from the legal discussion. Parallel citations are included in the text for the decisions of otherjurisdictions. 48 Cal.Const., art I, sections 7, 15 and 17.) For the reasons discussed below, this Court must reverse appellant’s conviction offirst-degree murder, and overturn his sentence. C. The Proceedings Below 1. The Prosecutor’s Trial Brief, the Pretrial Hearing and the Court’s Rulings on the Proffered Evidence. The week before jury selection began, the prosecutorfiled a 15 page “Trial Brief Regarding the Admissibility of Evidence.” (2 CT 531.) * The Trial Brief had a dual purpose:first, to persuade the court to adopt the prosecution’s theory of the case; and, second, to convince the judge that any evidence offered to bolster that theory was relevant and admissible. The Trial Brief begins with the “Anticipated Statement of Facts,” which sets out a chronological account of appellant’s relationship with Clari Burgos and her family from the time the couple met in 1983 when they were both only 14 years old. Within a few months of appellant’s and Clari’s meeting her mother, Bruni, invited appellant to move in with their family. According to the prosecutor, appellant spent the better part of the next 14 years abusing 20 The Prosecution’s Trial Brief Regarding the Admissibility of Evidence wasfiled on July 28, 2003. (2 CT 531.) On August 5, 2003, defense counsel filed a Motion in Limine to Exclude Other Crimes Evidence. (8 CT 2123.) Thetrial court heard and denied the defense Motion the same day. (8 CT 2126.) 49 and controlling Clari and all members of the household. Several especially egregious incidents are described, leading up to Clari’s decision to leave appellant in October of 1998. The Trial Brief then reviews the evidence the prosecution expects to present regarding the capital crimes, and relates events surrounding appellant’s arrest on November 10, 1998. (See 2 CT 531-536.) In the next section of the Trial Brief, entitled “Proffered Prior Abuse Evidence,” the prosecutor briefly describes 19 incidents of past misconduct by appellant. The incidents were organized according to primary victim, and dated from 1984 through 1998. Fourteen incidents, A through M, involve Clari. (See 2 RT 536-539.) David Burgos was a victim in one incident, and Vallerie Cage was the alleged victim on three occasions. It wasalso alleged that appellant beat up Richard Burgos“all the time.” (2 RT 539.) Thestate argued thatall of these incidents were relevant and admissible under Evidence Code section 1101(b) to show motive, identity and intent. (2 CT 540-542.) The Trial Brief suggests that the state’s case would be vulnerable without the prior conduct evidence: [T]he defendant’s prior acts of abuse toward the Burgos/Montanez family explain several things. First ofall,it showsthe powerand control that he exercised over all of them for so many years. It also showsan escalating pattern of 50 violence by the defendant when he does not get what he wants from the people involvedin this case. It explains why Clari had to take her children and leave the country to feel safe. Most importantly, it is the only logical and reasonable explanation for the killings. Without the motive evidence, the jury will simply be left with the fact that the defendant brutally murdered his mother-in-law and brother-in-law. The first question they will want answered is why. That is why the law allows motive evidenceto be introduced. (2 CT 540.) At the hearing the court asked the prosecutor to elaborate and to explain why the prior acts evidence wasrelevant to motive,intent and identity under Section 1101(b). The prosecutorstated: Numberone, I think the most important reason, is the motive. Because without a motive, the murder makes no sense. ae os oie 2k a2 [T]he defendant wasangry at his wife for taking his children and fleeing, and him having no idea where they were. The defendant had a strong suspicion that his mother-in-law knew where his wife was. And so he wasn’t able to get that information from his mother-in-law because obviously he never went and sought her out. He just complained about not being able to find his children, being upset about the fact that his son was gone. So he went over to his mother-in-law’s house, using the clothes as a ruse to get her to open the door. BecauseI think it’s pretty obvious that this man hasterrorized this family repeatedly over the years. And she probably wouldn’t have willingly opened the door to him, but for the fact that 51 he’s using this pretense of returning clothes to Clari— or giving clothes to the mother to say “Give them to Clari.” So because the defendant is angry with his mother-in- law fornottelling him where his wife and children are he kills her. Also, in one of the many threats the defendant madeto Clari in the course ofthe relationship, especially overthe last couple of weeks before sheactually left, he made threats to the effect of, “I’Il kill your whole family,” things like that. Well, sure enough, lo and behold, the defendant follows through on those threats that he made to Clari if she ever left him. (3 RT 438-439.) Relying on People v. Harris (1998) 60 Cal.App.4th 727, 733, and People v. Escobar (1996) 48 Cal.-App.4th 999, 1023, the prosecutor argued that Evidence Codesection 352 did not foreclose evidence of appellant’s prior misconduct. The prosecutor opined that the prior misconduct evidence was no more inflammatory than the charged crime. As result, the past conduct was admissible under People v. Ewoldt, supra, 7 Cal.4th at p. 405. (2 CT 542-543.) Defense counsel objected on several grounds. First, counsel pointed out the lack of relevance to the charges. If believed, the proffered evidence established that appellant had been abusive to his wife and daughter (Clari and Vallerie). However, there was no evidence of appellant ever having 52 behavedin a violent or aggressive way toward his mother-in-law, Bruni. On the contrary, Bruni wasthe respected family matriarch and appellant had lived with her for years at a time. The violent incidents involving appellant and Clari thus did not establish a motive for appellant to kill Bruni. Counsel next commented that manyofthe incidents were so old that they were, at ‘best, marginally relevant. The single alleged incident involving David Burgos occurred someten or eleven years before the crimes. Counsel further noted this was classic propensity evidence andclearly inflammatory. Additionally, defense counsel maintained that the sheer numberofincidents was unduly prejudicial under Evidence Code section 352. (See 3 RT 442- 449.) Thetrial court held that the prosecutor could introduce nearly all of the evidence discussed in the Trial Brief to show motive and identity under Section 1101(b). (3 RT 445-446.) 7! In connection withits rulings,thetrial court stated: Asfar as Vallerie.Cage, under “A” and “B,” I would let those in because it helps explain why Mrs. Cage was hiding herself and the kids. Andit is prior 1101(b), in the sense that it’s just violent — random violence upon another 21 The evidence of appellant’s having constantly “beaten up” Richard Burgos was not allowed. The court foundthat this testimony would have been excessive under Section 352, and might also have been unduly time- consuming. (3 RT 446-447.) 53 memberwhich helps show the overall picture which goesto the ID and motive. (3 RT 446.) 2. The Prosecutor’s Opening Statement. The prosecutor’s opening statement followed the narrative set out in the Trial Brief. It was immediately clear that the abuse history would be the predominant themein the state’s case for intentional murder. After proclaiming that this case was “tragic, senseless and absolutely gut wrenching,” the prosecutor told jurors that the story had begun yearsearlier. (6 RT 772-773.) Theentire first half of the prosecution’s opening speech wasa preview ofthe evidence andtestimonydetailing appellant’s past misconduct. (6 RT 772-778.) The clear implication was that the crime could be understood andthe full horror appreciated apart from the historical context. The guilt phase presentation of evidence wastailored accordingly, and basically followed a chronological approach leading up to the actual homicides. 3. Clari Burgos’s guilt phase testimony. Clari Burgos was the prosecution’s first witness. She and appellant met in Long Beach in 1984 whenthey were both only 14 years old. (6 RT 789-791.) Clari lived with her mother, Bruni Montanez, her two brothers: Richie Burgos, then age 13, and her baby brother, six month old David 54 Montanez. Bruni invited appellant to move in to their family’s homeonly a few months after he and Clari met. Appellant later moved with them to Paramount, and in December of 1985 Clari andappellant had a daughter, Vallerie Cage. The family subsequently moved to Bellflower, the location of the first incident Clari described. (6 RT 791-792.) a. Appellant’s choking ofClari in the late 1980s. One night appellant woke Clari up and told her to get him a glass of water. When she refused he grabbed herbythe hair, dragged her downstairs, and choked her until she blacked out. (6 RT 792.) b. Beating David Montanez and choking Vallerie. Clari testified about another incident in Bellflower. (6 RT 792-793.) When David Montanez wasfive or six years old he cried one day when Bruni left the house. Appellant got upset. He called David “momma’s boy,” and began to punch and kick him. At one point David was down on the floor and appellant “stomped on” his head. WhenClaritried to pull appellant away from David he turned on Vallerie, “squishing” the baby by bending her legs back over her head until her face turned blue. (6 RT 793.) C. Choking and beating Clari in January 1991. In 1991 Clari, appellant and Vallerie were living in their own apartmentin Signal Hill. (6 RT 793.) The couple argued one evening 55 because appellant wanted to go out with his cousins. He pushed Clari back into the bathroom where he choked her and smashed oneofher teeth out against the bathtub. (6 RT 794-795.) d. Beating Clari in August of1991, Clari described anotherincident in Signal Hill from Augustof 1991. (6 RT 795-796.) She and appellant had been arguing about money. Appellant started choking her. He pushed her face down on the couch and pulled pieces of her hair out. Appellant dragged Clari to the kitchen, pushedheronto the floor and held a knife to her throat. Claritried to get the knife away from her neck but in the struggle her hand wascut. Appellant dragged her into the bedroom and spenttherest of the night beating and choking her. (6 RT 795-796.) Appellant told Clari that if she told the police he would kill Vallerie. (6 RT 797.) é. Hitting Clari with a brick in January of1995. In 1994 Bruni moved to Riverside County, to a house on Genuine Risk Street in Perris. In December of 1994 Clari and appellant had a son, Micky Cage Jr. (6 RT 798.) Appellant was not living with the family at this time, and Clari, Vallerie, and the new baby movedin with Bruni, Richie and David. (6 RT 798-799.) Clari had a new car she had boughtfor the commute from Perris to her job in Carson. Appellant showed upat the 56 house one day in January of 1995. He wantedto use Clari’s new car, and whenshesaid no he began beating her up. (6 RT 799-800.) Clari ran outside, slipped on grass, and fell. The next thing she knew appellant was on top of her and she saw a brick coming toward her mouth. Clari supposed that she must have blacked out. When she cameto there wasa lot of blood in her eyes. Appellant kept saying “I’m not going back to jail. I know you’ll call the police on me.” (6 RT 800.) Appellant made her get in the car with Vallerie, David and the baby, Micky Jr. Clari remembered feeling dizzy, and thought that she must have been in shock. (6 RT 800-801.) She wanted to go to the hospital but appellant just kept driving all around for the rest of the day. They droveall around Lake Elsinore and appellant refused to stop anywhere. Clari looked in the rear view mirror and saw that her forehead wassplit open and the flesh looked like hamburger. She knew that she had totell appellant that she wasin lot ofpain and dizzy or he would not take her to the hospital. (6 RT 801.) Appellant eventually drove near Long Beach. Hesaid that his mother was a nurse and she could look at it. (6 RT 801.) The incident happenedin the middle of the day, but it was night by the time they got to the hospital. (6 RT 800.) They stayed outside in the car for a long time while appellant coached her on what to say. Hetold her 57 that if she said anything to make him get arrested he would kill the children. (6 RT 801.) Clari told the hospital staff that she had slipped and fallen at the market. She wasafraid for the children because appellant had them outside in the car. Appellant’s mother workedat the hospital and she came downto see Clari, as did Appellant’s brother Richard Cage and his girlfriend Tracy Thompson. (6 RT 802-803.) Clari was not admitted, but she had a CATscan and waited there overnight to see the plastic surgeon in the morning. She did not recall the numberofstitches neededto close the ~ woundin her forehead. The hospital arranged for Clari to see an oral surgeon immediately because the front of her jaw was caved in. It was a weekend and the doctor opened uphis office to see them. Clari described how the doctor braced his foot up against the chair to pull her jaw back into alignment. (6 RT 804.) Clari’s jaw still does not close properly and her teeth do not align correctly. (6 RT 804.) She lost her front teeth and herlip was badly cut. She also has a “Y”shaped scar on her forehead. (6 RT 804- 805.) 2 22 Overdefense objection,the trial court admitted into evidence close- up photographs of Clari’s scar taken by an identification technician in the initial days of the trial. (See 7 RT 891-892; People’s Exh. Nos. 98 and 99.) 58 f Hiding Clari’sfalse teeth. Approximately six monthsto a year later, Clari had dentures made because she lost her teeth and much of her gums. (6 RT 805.) Appellant would hide or throw away her dentures so she would have to go to work without teeth. He did that to humiliate her. Appellant did that many times, right up until the time when sheleft. Vallerie felt sorry for her and would go into the dumpster to look for Clari’s teeth. (6 RT 805-806.) g. Threatening Clari in 1998. Clari tried to leave many times but appellant would do something and/or threaten to kill her, the kids or her family. One time he took Micky Jr. and would not give him back. After the brick incident Clari knew that she had to get away. She began giving her Aunt Lydia moneyto hold for her. (6 RT 808.) In the month before she left, Clari was secretly interviewing for new jobs. She went on job interviews on her lunch breaks or before work. Her interview clothes were hidden at Aunt Lydia’s house so appellant would not get suspicious. If Clari dressed up at home before leaving appellant would accuse her of seeing another man. Shetried hiding her interview clothes in the trunk of her car, but appellant then began driving her to work. In the last month or so before Clari left appellant had becomeincreasingly suspicious and aggressive. (6 RT 811.) Appellant 59 would not leave Clari alone with the children. He would notlet her sleep, and instead kept her up all night arguing and madeconstant threats about what he would doif she left him. Appellant repeatedly threatened to kill Clari, the kids, and her entire family. His behavior would cycle. He would be nice for a time, and would then grow increasingly nasty and aggressive. (6 RT 812.) h. Sugar in the gas tank ofClari’s car. Clari testified about other incidents which were not mentioned in the prosecutor’s Trial Brief. Appellant once put sugar in her gas tank. (6 RT 808.) Another time when she wasdriving and he wassitting in the passenger’s seat they argued and he put the car in park. He thoughtit was funny and did it more than once. The car would spin and go out of control, “it was a joke to him.” (6 RT 809.) Appellant often threatened to kill Clari and her entire family. Sometimes he threatened to kill her and Vallerie, saying “then your mother will have to raise Mick.” (6 RT 809.) Clari knew when the remarks were directed to her mom, her brothers and the extended family because whenappellant threatened her or the kids he would use their 23 Defense counsel objected on relevance and discovery grounds. The objections were overruled. (10 RT 1379-1380.) Forensic technician Barbara Maestas wasallowedto testify that she had examined the car and found white residue around the gas tank, and a funnel and an empty box of C&H sugarin the trunk. (See 10 RT 1376-1381.) 60 names. (6 RT 809.) In the eighteen months before the crimes Clari, appellant and the children lived in an apartment two or three miles away from Bruni’s house. Clari worked in Carson, and her hours were 6:00 a.m. to 2:30 p.m. She typically left home around 4:30 a.m. to avoid the rush hourtraffic. In the last month before she left appellant insisted on accompanying her to work. (6 RT 813, 847-848.) He usually slept in the backseat while Clari drove. (6 RT 813.) She kept only a quarter tank of gas in her car because if it was full appellant would drive around anduseupall the gasoline. (6 RT 814.) i. Tearing up Clari’s money. There was no moneyin the housein the last few weeks before Clari left. (6 RT 813.) The last time Clari brought a paycheck homeappellant took it out of her purse, ripped it up and flushed it downthetoilet. (6 RT 813.) jy. Throwing Clari’s purse out ofthe window. Onthe day sheleft, Clari had scheduled a job interview for later in the day. Appellant insisted on taking her to work. (6 RT 814.) The gas tank wasless than half full that morning. Clari told appellant that he needed to go get some money from his motheror they would not have enough gasoline for another round trip between the apartment and herjob. 61 (6 RT 815.) Appellant went to sleep in the back seat. When they were nearing her freeway exit he said “I know you have money,” and grabbed her purse from the front passenger’s seat. He looked through the purse, found nothing and threw it out of the windowonto the freeway. Clari got offat the next exit and doubled back. She stopped the car in the emergency lane and got out to retrieve her purse. Appellant waited until they were moving again, grabbed the purse and threw it out the window a second time. (6 RT 815.) Whenhesaid, “Aren’t you going back to get your purse?” Clari said “No, there was nothing irreplaceablein it,” and kept on driving. Appeilant droppedheroff, saying he would be back to get her at 2:30 p.m. He watched her walk into the building before driving out of the parkinglot. Clari decided this wasit: she had to leave appellant. She called Bruni, asked her to get the kids and to bring them to pick her up at work. Next Clari called Vallerie. She told her to pack some things for each of them because they were leaving. (6 RT 816.) 4. Vallerie Cage’s guilt phase testimony. In her testimony, appellant’s daughter Vallerie described several of the same incidents Clari had related in her testimony. Vallerie also testified about times when appellant had been violent or abusive toward her. (See 6 RT 853-862.) 62 a. Two Incidents in 1991 and 1994. Vallerie described how whenthey wereliving in the apartment in Signal Hill her parents had an argumentthat got out of hand. Vallerie saw Appellant put a knife to Clari’s wrist and drag herinto the other room by her hair. Appellant told Vallerie to get to her room. (6 RT 854-855.) Vallerie heard screaming and yelling but did not recall any specific threats. In 1994 there were several incidents at her grandmother’s (Bruni’s) house on Genuine Risk in Perris. (6 RT 855.) The prosecutor asked Vallerie to testify about the brick incident. b. The brick incident in January 1995. Vallerie testified about her experience of the time when appellant hit Clari in the face with the brick. Vallerie was nine yearsold at the time. (6 RT 857.) She heard her parents arguing in the other room. Appellant went into the living room, telephoned his mom andtold her he loved herandifhe never saw her again he wantedher to know that. Clari was standing by the door, and she ran outside when appellant started toward her. Vallerie saw appellant chase Clari down. Hepicked up a loose brick from the front walkway and “smashed”it into Clari’s face. (6 RT 858.) Appellant dragged Clari back inside the house, and continued punchingher andhitting her in the face. Appellant finally stopped when Clari was screamingthat 63 her teeth were coming out. (6 RT 855.) After that they all got into the car. Appellant drove, Clari sat in the front passenger’s seat, and the children, Vallerie, David, and the baby, Micky Jr., sat in back. (6 RT 856.) They were driving aroundfor a long time. Clari would not turn around because she did not wantthe kids to see her face. Appellant drove aroundtalking as if they were not going anywherein particular. Clari was pleading with appellant to take herto the hospital. He refused, saying that he did not want to get into trouble for what he had done. (6 RT 856.) Throughoutthe long drive Vallerie held the baby, Micky Jr., on her lap. She had only one diaper for him andit was soiled. At one point, Clari motioned for Vallerie to pass her the diaper because she needed something to mopup all the blood. (6 RT 856.) While they were driving around the diaper becamefully saturated with blood and appellantthrewit out the window. (6 RT 857.) Forthe rest of the drive Clari had to use hershirt. (6 RT 857.) Vallerie never told the police what had happened. (6 RT 858.) Appellant had threatened all of them. Hesaid he would hurt Vallerie and Davidifthey told anyone. (6 RT 856.) 64 C. Appellant shaves Vallerie’s hair. The prosecutor had Vallerie testify regarding another incident. (6 RT 858.) School was dismissed early one day, and Vallerie came home to find appellant sitting on the couch with another woman. On previous occasions when appellant did not want Vallerie to know what he was doing he would say “go to your friend’s house,” or “here’s a $20, go to the mall.” This time he said, “I dare you to open your mouth.” (6 RT 858.) Onthis occasion, Vallerie did tell Clari and when Clari confronted appellant it came out that Vallerie had been the source of the information. (6 RT 858-859.) Appellant broke off arguing with Clari. He grabbed Vallerie by her hair and dragged her into the bathroom. Appellant pluggedin his clippers and shaved all her hair off. Vallerie was ten or eleven years old at the time, and her hair had been past shoulder length. (6 RT 859.) She felt humiliated, and did not want to go outside or to school. Her mom boughther a wig but appellant saw it and would not let her wearit. (6 RT 859-860.) 5. The closing argument andthe jury instructions. The prosecutor began by reminding jurors that she had warned them the case would be “gut wrenching.” (11 RT 1572.) ** She summarized the 24 In closing argumentthe prosecutor contrasted the jury’s experience with that of the family. The prosecutor here pointed out while the jury _ heard the evidence in a “sterile courtroom environment,” the witnesses had 65 testimony pertaining to eight of the most egregious past crimesor incidents. (11 RT 1584-1586.) In conclusion, the prosecutorstated: Whydid you hearall of that evidence? Not so that you would think that the defendantis a bad guy or a person of bad character. You can’t use it that way. You heard that evidence to help you understand the intent required in this case, to help you understand the premeditation and deliberation; to help you determine the motive for this crime. That’s why you heard all of that evidence. That’s how youuseall of that evidence. (11 RT 1586.) The court instructed the jury with CALJIC 2.50, stating: Evidence has been introducedfor the purpose of showing that the defendant committed crimes other than that for which he is on trial. This evidence, if believed, may not be considered by you to prove that the defendantis a person of bad character or that he has a predisposition to commit crimes. It may be considered by you only for the limited purpose of determining if it tends to show: The existence of the intent which is a necessary elementof the crime charged; The identity of the person who committed the crime, if any, of which the lived through these events. (11 RT 1572, 1576.) Whereas the jurors were told about appellant’s violent behavior, the witnesses experiencedall ofit. (11 RT 1572-1576.) Specific violent incidents were mentioned, with added reminders of the impact on the victims such as “Vallerie saw that,” or “Clari heard that.” (11 RT 1572-1575.) 66 defendantis accused; A motive for the commission of the crime charged; For the limited purpose for which you are to consider such evidence, you must weighit in the same manneras you do all other evidence in the case. You are not permitted to consider such evidence for any other purpose. (11 RT 1558; 13 CT 3555.) *° D. Standard of Review. The trial court’s evidentiary rulings are usually reviewed for abuse of discretion. (See People v. Burgener (1986) 41 Cal.3d 505; Evid. Code § 352.) However, heightened scrutiny is appropriate and necessary because this claim involves the fundamental constitutional rights of a capitally charged defendant. The United States Supreme Court has applied heightened scrutiny to procedures involved in capital cases based onits recognition that “death is [] different.” (Gardener v. Florida (1977) 430 U.S. 349, 357-358; Lockett v. Ohio (1978) 438 U.S. 586.) As observed by the Ninth Circuit Court of Appeal, the United States Supreme Court’s decisions reflect particular sensitivity to ensuring the accuracy of the 25 Thetrial court refused defense counsel’s request to modify this instruction by inserting after the first sentence: “Before you may consider this evidence you mustfirst determine that the prior offense occurred and that the defendant committed that offense.” (13 CT 3513-3514.) 67 evidence and also the propriety of admitting evidence in capital cases. (Lambright v. Stewart (9" Cir. 1999) 167 F.3d 477,citing Skipper v. South Carolina (1986) 476 U.S. 1; Booth v. Maryland (1987) 482 U.S. 496.) According to the reasoning of these cases, this Court should independently examine the record to determine whetherthe trial court’s erroneous exclusion of this evidence was harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 24.) The constitutional standard of Chapman v. California is long settled. Independent review applies where a claim implicates a significant constitutional right. Where error is found, the burden shifts to the state to demonstrate, beyond a reasonable doubt, that the error did not contribute to the conviction. Reversal is required where “there is a reasonable possibility that the evidence complained of might have contributed to the conviction.” (Chapmanv. California, supra, 386 U.S.at p. 23, citing Fahy v. State of Connecticut (1963) 375 U.S. 85, 86-87.) The United States Supreme Court’s opinion in Chapmanv. California, further explains the nature of independent review. Independent review requires a truly meaningful examination ofthe rights and interests at stake in which all doubts are resolved in the defendant’s favor. It is not enoughfor the state court to simply invoke the rule and then hold the 68 standard is satisfied based on the court’s views regarding the strength of the evidence. The United States Supreme Court specified that the standard must be rigorously applied and not “neutralized” by a reviewing court’s “emphasis and perhaps overemphasis upon the court’s view of 399‘overwhelming evidence.’” (Chapman v. California, supra, at p. 23.) Like the defendant in Chapmanv. California, appellant was “entitled to a trial free from the pressure of unconstitutional inferences.” (/d at p. 26.) Forall of the reasons discussed below,this Court should independently review the record in this case and reverse the convictions and sentence. E. The Prior Incidents of Domestic Violence Were Not Relevant to Any Disputed Facts or Material Issues, and there was no Reasoned Justification for Admitting this Testimony under Evidence Code section1101(b). The policy objectives of Evidence Code section 1101 are well- settled. Evidence of a defendant’s past crimes and badacts is recognized as So prejudicial that, with few exceptions,it is excluded in trial for a subsequent offense. (See Evid. Code §1101(a).) “Evidence that a defendant has committed crimes other than those currently chargedis not admissible to prove that the defendantis a person of bad character or has a criminal disposition.” (People v. Foster (2010) 50 Cal.4th 1301, 242 P.3d 105, 130-131; Evid. Code §1 101.) Evidence Code section 1101, 69 subdivision (b), permits evidence of a defendant’s uncharged crimes or . other misdeeds for limited purposes and only whencertain prerequisites are satisfied. (People v. Ewoldt, supra, 7 Cal.4th 380; People v. Balcom (1994) 7 Cal.4th 414.) “Evidence of uncharged crimes is admissible to prove “the identity of the perpetrator of the charged crimes, the existence of a common design or plan, or the intent with which the perpetrator acted in the commission ofthe charged crimes.” (People v. Foster, supra, 242 P.3d at pp. 130-131; Evid. Code §1101.) The charged and unchargedcrimes must be “sufficiently similar to support a rational inference of identity, common design orplan, or intent.” (People v. Foster, supra.) Thetrial court’s role as gate keeperis particularly important in this context given the potential past crimes evidence hasfor causing substantial undue prejudice. (See, e.g., People v. Thompson (1980) 27 Cal.2d 303, 314.) Evidence of a defendant’s past crimes or misdeedsis to “be received with ‘extreme caution’ and all doubts about its connection to the crime charged must be resolvedin the accused’s favor.” (People v. Alcala, supra, 36 Cal.3d at p. 631 [citation omitted]; see People v. Holt (1984) 37 Cal.3d 436, 451; People v. Brown (1993) 17 Cal.App.4th 1389, 1395.) A trial court should not admit evidence of other crimes until it has ascertained that ~ the evidence tends logically and by reasonable inference to prove the issue 70 upon whichit is offered, that it is offered on an issue material to the prosecution’s case, and is not merely cumulative. (People v. Stanley (1967) 67 Cal.2d 812, 818-819, quoted with approval in People v. Harris, supra, 60 Cal.App.4th at pp. 739-740.) In appellant’s case the trial court was not appropriately vigilant with regard to the proffered evidence ofprior crimes. According to the prosecution’s theory, appellant killed his mother-in- law and brother-in-law because he was angry that his wife had left him. Two categories of evidence were offered in support of this theory: 1) testimony about some 14 incidents when appellant abused his wife and daughter over a period of approximately 14 years; and, 2) Clari’s testimony about appellant having threatenedto kill her family if she ever left him. Clari’s testimony relating specific threats allegedly made within a few weeks of the murders may have been relevant and admissible for this purpose. *° The domestic abuse crimes, however, werenot. 26 Appellant does not concedethe relevance of Clari’s testimony on this point. However, this evidence alone was not unduly prejudicial. Although defense counsel did not object on this basis, Clari’s testimony about threats to Bruni was mere conjecture and was unlikely to be very persuasive. Appellant supposedly madea habit of intimidating Clari, and often threatened to kill her and her entire family. Testifying attrial, Clari claimed she knew whenthe threats were directed to her mother, her brothers, or the extended family because when appellant threatened her or Vallerie he would use their names. (6 RT 809.) Because Clari did not report a direct and specific threat to Bruni, jurors could haveeasily concludedthat her interpretation of appellant’s statements had been 71 In order to connect appellant’s past acts with the capital homicidesit is necessary to collapse the concept of motive into propensity or character. Whenfully articulated, the prosecution’s argument proceedsas follows: Appellant’s past acts demonstrate that he is violent with his wife and daughter, and will use brutal force to dominate and control them. Therefore, it is reasonable to infer that when appellant’s immediate family is gone he acts out violently against the next degree relatives. The trial court’s comments at the motion hearing revealthat it followed this line of reasoning. Uponissuing the ruling, the judge stated: Asfar as Vallerie Cage, under “A” and “B,” I would let those in because it helps explain why Mrs. Cage was hiding herself and the kids. Andit is prior 1101(b), in the sensethatit’sjust violent — random violence upon another member whichhelps show the overall picture which goesto the ID and motive. (3 RT 446 [emphasis added].) Thetrial court allowed itself to be distracted from what should have been the focus ofits analysis. Evidence of appellant’s tendency to explode influenced by subsequent events. This was especially so because the nonspecific comments Clari relied on conflicted with her recollections of appellant’s exact statements. According to Clari, when appellant threatened to kill her and Vallerie he would say “then your mother will haveto raise Mick.” (/d.) This evidence plainly indicates that appellant was not threatening Bruni’s life. 72 in “random violence”directed at family members is evidence of disposition and character whichthe law does not allow. The question was not whether the evidence would be useful to explicate the state’s theory, or to add context, persuasive appeal, or to increase the credibility of state’s witnesses. The correct inquiry was whether the evidence of appellant’s past crimes had substantialprobative valuefora disputed element ofthe chargesto be proven. (People v. Foster, supra, 242 P.3d at p. 133; People v. Thompson, supra, 27 Cal.3d at p. 318.) As demonstrated below, the evidence of appellant’s past domestic violence wasnot probative of identity, intent or motive with regard to the capital case. 1. The past crimes and the murders did not share the commonfeatures which would make this evidence relevant for identity. To admitpast acts to prove identity under Section 1101(b) requires the highest degree of similarity between the defendant’s prior crimes or bad acts and the present offense. The conduct must “display a pattern and characteristics... so unusual and distinctive as to be like a signature.” (People v. Kipp (1998) 18 Cal.4th 349, 370; see also, People v. Harvey (1984) 163 Cal.App.3d 90, 101.) The past crimes and the current offense mustbe virtually identical, or “mirror images.” (People v. Huber (1986) 181 Cal.App.3d 601, 622; People v. Balcom, supra, 7 Cal.4th at p. 425 [“[t]he 73 highly unusual and distinctive nature of both the charged and uncharged offenses virtually eliminates the possibility that anyone other than the defendant committed the charged offense”]; People v. Wein (1977) 69 Cal.App.3d 79, 90 [prior offense was “unique and peculiar”to the extent that it constituted defendant’s “trademark”].) 7’ As the California Supreme 27 In applying the signature test, the court looks at the common marks of the offenses by examining: 1) the degree ofdistinctiveness of the individual shared marks; and 2) the number of minimally distinctive shared marks. (People v. Thornton (1974) 11 Cal.3d 738, 756; see, e.g., People v. Hughes (2002) 27 Cal.4th 287, 333 [the existence of stolen credit cards in Crown Royal bags in both the charged and uncharged offenses was sufficiently distinctive “signature” characteristic to support an inference that the same person committed both the charged and the unchargedacts]; People y. Catlin (2001) 26 Cal.4th 81, 120 [the charged and uncharged crimes bore a numberofhighly distinctive common marks”- each victim was a close female relative of the defendant (wife or mother); the defendant stood to gain financially from each victim’s death; and the victims had died from paraquat poisoning, whichis “rare”]; People v. Kipp, supra, 18 Cal.4th at pp. 370-371 [the charged and uncharged offenses displayed commonfeatures that revealed a “highly distinctive” pattern: in both rape- murders, the perpetrator strangled a 19-year-old womanin onelocation, carried the victim’s body to an enclosed area belonging to the victim, and covered the body with bedding; the bodies of both victims were found with a garment on the upper body, while the breasts and genital area were unclothed; in neither instance had the victim’s clothing been torn, and the bodies of both victims had been bruised on the legs]; People v. Medina (1995) 11 Cal.4th 694, 748 [admission of uncharged murders wasjustified in murder prosecution; both charged and uncharged offenses involved robbery and murder of convenience store employee, each victim wasshotin the head execution-style, and ballistics reports indicated use of the same handgun, later traced to the defendant]; People v. Sully (1991) 53 Cal.3d 1195,1223-1225[illicit sex, cocaine and the abuse ofprostitutes were commonto all crimes, and each crime occurred in defendant’s warehouse, where helived, worked, and controlled “what came in and out”].) 74 Court stated in People v. Rivera (1985) 41 Cal.3d 388, “[iJn order for evidence of a prior crime to have a tendency to prove the defendant’s identity as the perpetrator of the charged offense, the two acts must have enoughshared characteristics to raise a strong inference that they were committed by the same person. Butit is not enough that the two acts contain common marks.” (People v. Rivera, supra, 41 Cal.3d at p. 406, citing People v. Haston (1968) 69 Cal.2d 233, 246, accord, People v. Thompson, supra, 27 Cal.3d at p. 316.) This Court recently considered the degree of similarity between past and present crimes needed to admit evidence of a capital defendant’s past crimes to show identity and a commonplan or design. In People v. Foster, supra, 242 P.3d 105, this Court determined that evidence of two prior crimes had been properly admitted under Section 1101(b). The facts and circumstances ofPeople v. Foster were, however, markedly different and the case offers a useful contrast to appellant’s. The defendant in Peoplev. Foster was charged with first degree murder with burglary and robbery special circumstances. The defendanthad visited a church a few days before the crimes. He targeted a woman who workedin the church’s office, and surprised her there when she was alone on a weekday afternoon. The defendant stabbed the victim to death and stole her wallet. Attrial, the 75 prosecution was allowedto present evidence of two previous crimes. In both ofthe previous cases, the defendant sexually assaulted and robbed women whohe knew would be working alone in their offices. (People v. Foster, supra, at pp. 131-132.) This Court noted 12 very specific features commonto both the capital case and the twoprior crimes. ** Given the significant number ofidentical circumstances, the Court found the two prior crimes to be relevant to prove identity irrespective of the fact that only the victim in the capital case had been killed. (/d at p. 132.) In order to be properly admitted to prove identity under Section 1101(b), the past and present crimes must share specific identifying features. More is required than the prosecution’s assertion that the defendant’s past crimes demonstrate a pattern or practice of committing certain types of offenses, or even a preference for similar types of victims. | 28 In People v. Foster, this Court identified a dozen shared aspects of the prior crimes and the capital homicide:(1) the two prior incidents occurred within three-quarters of a mile of each other, in a relatively rural town area, (2) both occurred between noon and 1:30 p.m., (3) both occurred in an office, (4) both female victims were working alone, (5) defendant had visited each site before the crimes occurred, (6) during his earlier visits to both sites, defendant provided a false story with respect to the purpose of his visit, (7) the contents of both victims’ purses were emptied onto the floor, (8) the victims’ purses were placed onthe floor, (9) the victims were movedto a back area, (10) Cindy M.wastold to disrobe, and one of Gail Johnson’s shoes was found on top of the desk, (11) both victimsresisted and were stabbed, and (12) each attack occurred shortly after defendant was released on parole. (People v. Foster, supra, 242 P.3d at p. 130.) 76 The hypothetical below illustrates the distinction between evidence merely showing criminal propensity and a legitimate use ofpast acts to establish identity. As the author observes: [W]hile evidence of the defendant’s prior burglariesis inadmissible to show propensity to burglarize, evidence linking the defendant to an uncharged burglary that involved disarming a sophisticated alarm system mightlogically tend to identify the defendant as the perpetrator of a charged burglary of a building with a similar system. (M. Cammack, Admissibility ofEvidence to Prove Undisputed Facts: a Comparison ofthe California Evidence Code § 210 and Federal Rule of Evidence 401, 36 Sw.U.L.Rev. 879, 899-900 (2008).) In appellant’s case there were no precise identifying features commonto the domestic violence crimes and the murders, and the evidence should not have been admitted. 2. The evidence wasnot relevant to establish motive. In orderto be relevant and admissible to establish motive, past crimes or bad acts must be specifically linked to the new offense. (See People v. Daniels (1991) 52 Cal.3d 815, 857 [prior bank robbery in which defendant exchanged gunfire with police and was rendered a paraplegic was admissible to prove motivein first degree murder of twopoliceofficers. by use of firearm]; People v. Barnett (1998) 17 Cal.4th 1044, 1118-1119 [evidence of prior violent struggle between defendant and victim relevant 77 and admissible to show motive for first degree murder].) Appellant’s case lacks this type of direct connection. The prior crimes established appellant’s history of abusing his wife and daughter. However, during this same 15 years, there was no indication of appellant ever having acted out against Bruni. The prosecution’s speculation (i.e., that appellant carried his alleged threat to Clari where he said he wouldkill her whole family) was not a sufficient basis from whichto infer a shared motive between different crimes committed against different victims. ”” 3. The past crimes were not probative of intent in the capital case. The evidence of appellant’s past crimes and misdeeds did not support an inference of intent with respect to the two homicides. The 29 In all but one instance,the trial court did not address the specific items ofproffered evidence to determine whether and to what extent each wasrelevant. Where the court did single out two of the past incidents,its remarks indicate its confusion regarding the relationship of the proffered evidence to contested facts and issues. Thetrial court allowed the prosecutor to introduce Items A and B pertaining to Vallerie Cage (see 2 CT 539-540) based,in part, on its finding that this evidence “helps explain why Mrs. Cage washiding herself and the kids.” (3 RT 446.) Setting aside the question of whether these incidents are even probative on that point, Clari’s reasons for leaving appellant are not relevant. The prosecution’s theory was that appellant was angry becausehis wife left him taking their two young children. There was no reason to supposethat Clari’s motivations for leaving would have altered appellant’s responseto the loss of his wife and children. 78 Amended Information charged appellant with two counts of deliberate and premeditated first degree murder. (2 CT 473.) A specific intentto kill is a necessary element of both express malice and first degree murder based on a “willful, deliberate, and premeditated killing.” (See People v. Alvarado (1991) 232 Cal.App. 3d 501, 505.) To establish specific intent, the evidence must show that the defendantkilled “as a result of careful thought and weighing the considerations, as with a deliberate judgment orplan, carried on coolly and steadily according to a preconceived design.” (People y. Anderson (1968) 70 Cal. 2d 15, 26.) °° Appellant’s past mistreatment of his wife and daughter wasirrelevant onthis point.*'! Evidence ofintentis admissible to provethat, if the defendant committed the actalleged, he or she did so with the intent that comprises an element of the charged offense. “In proving intent, the act is conceded or assumed; what is soughtis the state of mind that accompaniedit.” (People v. Ewoldt, supra, 7 Cal .4th at p. 394, fn. 2, quoting 2 Wigmore (Chadbourn rev. ed. 1979) § 300, p. 238.) 30 The jury was instructed with CALJIC 8.20 (13 CT 3559; 11 RT 1564-1565.) Specific legal claims regarding the sufficiency of the evidence for first degree murder, andthe jury instructions regarding premeditation and deliberation, are discussed separately herein. (See ArgumentsII, IV.) 31 Appellant contendsthat the totality ofthe state’s evidence was insufficient to prove premeditation and deliberation either with or without the prior misconduct evidence. (See ArgumentII, section D.) 79 The incidents described in Clari’s and Vallerie’s guilt phase testimony stated facts sufficient to establish battery and/or spousalbattery. (Pen. Code §§ 242; 273.5 (a).) These are generalintent crimes, which require only the intent to committhe assaultive act. (People v. Campbell (1999) 76 Cal.App.4th 305, 308.) Assuming arguendothat all of the incidents related in Clari’s and Vallerie’s testimony were proven beyond a reasonable doubt, that evidence wasnot probative in determining whether appellant acted with the specific intent necessary to sustain a conviction for first degree, premeditated murder. 4. The evidence did not prove a common schemeor plan. To the extent that the prosecutor contended that the evidence reflected the existence of a common schemetying the domestic abuseto the homicides,this justification fails as well. The testimony from Clari and Vallerie demonstrated that appellant was quick to anger (often for irrational reasons) and acted out immediately. Appellant’s behavior wasbrutalat times, but it was not planned or thought out in advance. In order to meet the standard for admissibility under the “common design or plan” exception provided in Section 1101(b), there must be commonfeatures that “indicate the existence of a plan rather than a series of similar spontaneousacts... to support the inference that the defendant employed the plan in committing 80 the charged offense.” (People v. Ewoldt, supra, at pp. 402-403.) In other words, the similarities must show that the prior act and the charged offense were carried out for the same purpose. There was no more than speculation and invention offered in support of a “common plan”linking appellant’s past acts to the homicides. The prosecutor theorizedthat all of appellant’s behavior wasattributable to his plan to dominate and control the entire family. Thetrial court was apparently persuaded,and followed this invitation to infer a global plan from the historic acts. The court stated: “Andit is prior 1101(b), in the sense that it’s just violent — random violence upon another member which helps showthe overallpicture which goes to the ID and motive.” (3 RT 446 [emphasis added].) The judge’s remarks thus revealthat the court conflated the meanings of “plan” and a pattern of behavior or propensity - precisely the error Section 1101 was designed to avoid. F. Appellant’s past Crimes Were NotSimilar to the Murders. California law required that the trial court examinecritically the charged acts andprior incidents, in light ofall of the evidence, to determine whetherthere weresimilarities sufficient to indicate that all were carried out in furtherance of an overarching design. (People v. Hovarter (2008) 44 Cal.4th 983, 1003; People v. Ewoldt, supra, 7 Cal.4th at pp. 402-403.) The 81 prior violence evidence in this case revealed no comprehensive plan as acknowledgedbythetrial judge’s use of the word “random.” Thetrial court did not push the prosecutor to explain the state’s need for evidence of appellant’s history of battery to establish the fact of his anger and frustration toward his mother-in-law. Nor did the judge insist upon specific connections between that evidence and the elements of the charged crimes. A more rigorous approach would have revealed the logical flawsin the state’s contentions and might have prevented the erroneous admission of an abundanceofirrelevant and inflammatory evidence. The facts of the two homicides were markedly different from the facts and circumstances of the domestic abuse incidents. Appellant had, on various occasions overa period of fourteen years, choked andstruck his wife and daughter and made verbalthreats in an apparent effort to intimidate them. He did not, however, threaten either of them with a gun. In fact, Clari’s testimony established that appellant had the opportunity to threaten her with a weapon anddid not do so. When appellant brought a gun into the apartment(on two prior occasions according to Clari’s testimony) she had been upsetat the prospect of an accident with the children and asked him to take it away. Appellant did as she asked without argument. (See 6 RT 834-835 [testimony of Clari Burgos].) 82 Perhaps the most significant distinction between the past acts and the homicides was the difference in appellant’s relationships with the victims. While the victims were from the same family their relationships were very different and their respective roles were not interchangeable. Clari was appellant’s wife and Vallerie was his daughter. Bruni was the respected family matriarch, and the evidence showedthat appellant’s relationship with her was unique. Clari testified that her mother invited appellant to live with the family in 1985 when she and he were young teenagers. (See 6 RT 790, 846.) The couple lived with Bruni off and on for the next 14 years. Not only was Bruninot involvedin the previous incidents, she was not present when they occurred. (See 6 RT 792-808; 846 [testimonyof Clari Burgos].) Clari’s and Vallerie’s testimony recounted incidents of alleged violence and abuse over a period of fourteen years. Nothing in this abundance oftestimony suggested that appellant had ever previously threatened Bruni or behaved in an aggressive manner toward her. (Compare Rufo v. Simpson (2001) 86 Cal.App.4th 573, 585-586 [in a wrongful death action resulting from the defendant’s murder of his former wife, prior instances of defendant’s abuse of the victim were allowed to show motive, intent and identity; no requirementof distinctive modus operandi whereacts involved the same victim and the same perpetrator].) 83 Onthe contrary, testimony in the penalty phase revealed that Bruni wasthe sole respected adult figure in appellant’s life. Appellant’s mother, Emly Farmer, testified that before appellant wentto live with Bruni’s family his behavior at home had been “terrible.” (15 RT 2119.) Appellant continued living in Bruni’s household despite the repeated efforts of his mother, social services people, and church members to persuade him to return hometolive with his mother and younger brother. (15 RT 2119-2121.) In all of the evidence and testimony in this case, Bruni emergesasthe only person capable of controlling him. Witnessestestified about two incidents where several police officers could not contain appellant when he wasin a violent rage. Three police officers were unable to wrestle appellant off of a bicycle to arrest him for spousal abuse in 1991 until the sergeant stepped in and applied the carotid hold. (13 RT 1848.) Several years later, David Olson saw appellant, who had beenarrested, handcuffed and placedin therear of a patrol car, break through the rear window and wriggle to the ground. Onthat occasion the police had to use mace to subdue him. (13 RT 1873-1874.) Bruni, however, could manage appellant even in his worst states. Whenappellant was beating Willie Hinton it was Bruni whointervened to stop him. Nancy Icenogle had tried and appellant had attacked her. (See 13 RT 1887.) Clari also implored 84 appellant to stop but he persisted. (15 RT 2076-2078.) Fortunately forall concerned Bruni came home. Bruni interrupted appellant in the midst of a crazed frenzy of brutal violence, and simply told him to stop. (See 13 RT 1887-1889 [testimony ofNancy Icenogle]; 15 RT 2079 [testimony of Clari Burgos].) Clearly, appellant’s relationship with Clari wasentirely different. Appellant’s feelings for Clari and his behavior toward her were unrelated to his treatment of Bruni. The past incidents between appellant and Clari were, therefore, not relevant and should not have been admitted. G. The Probative Value of This Evidence Was Greatly Outweighed by its Unduly Prejudicial Effect. Forall of the reasons discussed above, the evidence of appellant’s past misconduct wasnot relevant to any disputed issues in the capital case. Assuming, arguendo, that the evidence had some marginal relevance,its usefulness was overwhelmedits obvious tendency to create undue prejudice. Relevanceis not the sole consideration, andthe trial court’s evidentiary ruling must reflect its balancing of the competing concerns of probative value and the “inherent dangerin regard to use of other-crimes evidence” (People v. Nottingham (1985) 172 Cal.App.3d 484, 495.) Evidence of other crimes entails specific and extreme risks of undue prejudice. As the court of appeal remarked, the admission of other-crimes evidence: 85 inevitably tempts the tribunal to give excessive weight to the vicious record of crime thus exhibited, and either to allow it to bear too strongly on the present charge, or to take the proof of it as justifying a condemnation irrespective of guilt of the present charge. (People v. Nottingham, supra, 172 Cal.App.3d at p. 495, quoting andciting People v. Alcala, supra, 36 Cal.3d at p. 631; People v. Guerrero (1976) 16 Cal.3d 719, 724.) These dangers should be of particular concern in a capital case because the jurors are in a sense primed to make a moral assessment. Through the voir dire and juror selection processes capital jurors are awarethat, in the event a penalty phaseis held, they will be making the ultimate moral judgment about the defendant. The only connection between appellant’s past acts and the capital crimes washis propensity for irrational violence when angry or frustrated. This type of loose global connection is precisely what the rules of evidence are designed to prevent. As the California Supreme Court stated over 40 years ago, where evidence of other crimesis offered, “[it] should be scrutinized with great care, ... in light of its inherently prejudicial effect, and should be received only whereits connection with the charged crimeis clearly perceived.” (People v. Durham (1969) 70 Cal.2d 171, 186-187 [emphasis added], cert.denied, Durham v. California (1969) 395 U.S. 968.) Evidence of uncharged offenses “proves too much,”creating a substantial 86 risk of “overpersuading”the jurors and diverting their attention from their duty to determine whether the defendant’s guilt of the instant offense has been proven beyond a reasonable doubt. (Michelson v. United States (1948) 335 USS. 469, 475-416: People v. Alcala, supra, 36 Cal.3d at p. 631.) The danger inherent in the evidence of a defendant’s past crimes or misdeedsis that the jury may be prompted to convict the defendant for being a “bad” person, without regard to whetherhis guilt of the instant offense has been proven beyonda reasonable doubt. (Spencer v. Texas (1967) 3 85 U.S. 554, 575-576 [conc. and dis. opn. ofWarren, C.J.]; Michelson v. United States, supra, 335 U.S. at pp. 475-476; People v. Garceau (1993) 6 Cal.4th 140, 186.) In appellant’s case,it is nearly certain that the jurors were so offended by appellant’s history that they convicted him ofpremeditated, first degree murder and foundtrue the lying-in-wait special circumstance despite the lack of sufficient evidence. The recognition that a defendant’s history of domestic violenceis especially prejudicial in this respect is reflected in other provisions of California law. California Evidence Code section 1109, subdivision (a), section (1) allows evidence of other instances of domestic violence under very limited circumstances. The evidenceis inadmissible if its probative value is outweighed by the possibility it will consume an undue amount of 87 time or create a substantial risk of undue prejudice or of confusing or misleading the jury. (Evid. Code §§352; 1109; People v. Falsetta (1999) 21 Cal.4th 903, 918.) The factors applicable to determining whether to allow evidence of uncharged offenses pursuant to Section 1109 are useful in comparisonto this case, and include: the nature, relevance, and possible remoteness, the degree of certainty of its commission andthelikelihood of confusing, misleading, or distracting the jurors from the main inquiry,its similarity to the chargedoffense, its likely prejudicial impact on the jurors, the burden on the defendant in defending against the uncharged offense, and the availability of less prejudicial alternatives to its outright admission. (People v. Falsetta, supra, 2\ Cal.4th at p. 918.) When the factors recommendedby the California Supreme Court in Falsetta are applied to appellant’s case, the trial court’s error is readily apparent. 1. The domestic abuse wassignificantly different from the charged offenses, and many incidents were remote. As discussed above,the prior incidents constituted different crimes: domestic violence (without use of a weaponin all but one instance), as opposedto first degree premeditated murder with two special circumstances and the use of a gun. Thepast incidents were general intent crimes, requiring proofof a different and less culpable mental state. Additionally, the past domestic violence incidents involved not only other individuals but persons who occupied very different roles in appellant’s life. Even in 88 People v. Linkenaugher (1995) 32 Cal.App.4th 1603, which the prosecutor relied on to argue for the admissionofall of the past conduct evidence, there was a direct correlation between the past and present offenses. There the defendant’s past domestic abuse of his wife was held admissible in his trial for her murder. Not only did Linkenaugher involve the samevictim, the defendant’s acts and methods were similar, and the prior incidents occurred within two years of the murder. The court of appeal noted: “the defendanttortured and strangled his wife to death after abusing her for two years.” (People v. Linkenaugher, supra, 32 Cal.App.4th at p. 1615.) Atthe very least, the trial court should have been more proactive with respect to this evidence. (Compare People v. Jones (2011) __ Cal.Rptr.3d [2011 WL 285163] [noting with approval the trial court’s attempts to avoid undueprejudice by narrowly tailoring the evidence to eliminate a potentially inflammatory feature of the past crime].) Some of these incidents might have been disallowed for remoteness and uncertainty. The guilt phase testimony was made up of unadjudicated incidents - the single exception being the 1991 incident with Clari which resulted in appellant’s guilty plea to spousal abuse charges. (See 13 RT 1771.) Many were quite remote; six incidents occurred seven or more years before the crimes. (See 2 CT 531-546 [People’s Trial Brief Regarding the 89 Admissibility of Evidence].) 2. Thetrial court should have limited the past crimes evidence given the availability of alternatives. The prosecution had evidence to support its theory of the case which wasless prejudicial and more directly relevant to the murders. Clari’s testimony about the month or two leading up to her decision to leave in October of 1998 conveyed the essence of the prosecution’s theory without the excessive and inflammatory details of the entire fourteen year history. Clari’s testimony about appellant in the several weeks preceding her decision to leave was more than adequate to portray appellant as a stereotypical wife abuser. Appellant, viewed through Clari’s accountofthe fall of 1998, was mean,controlling, jealous, and temperamental. She was afraid of him, and he had repeatedly threatened her, her children, and the rest of her family. Assuming for the momentthat Clari’s motivations were relevant, the jurors could certainly understand her reasonsfor fleeing to Puerto Rico and keeping her whereabouts a close secret. Appellant’s predictable anger and upset were describedin the testimony of his neighbor, Jason Tipton, whorelated appellant’s threats to harm and/or intimidate Bruni in the days and weeks immediately before the crimes. (See 7 RT 965-966.) Given these circumstances, there was no legitimate reason for the prosecution to compoundthe prejudice with a glut of extensive and 90 inflammatory evidence. H. Reversal Is Required under Either the State or Federal Standard. “Evidence is substantially more prejudicial than probative if, broadly stated, it poses an intolerable risk to the fairness of the proceedings or the reliability of the outcome.” (People v. Waidla (2000) 22 Cal.4th 690, 724.) The erroneous and improper admission of the abundant testimony concerning appellant’s domestic abuse history was overwhelmingly prejudicial. The jury was encouraged to conclude that appellant justly deserved a death sentence, irrespective of his intent in the homicides, for the role he played in devastating this family. Courts and commentators had long recognizedthis effect: It may almostbe said that it is because of this indubitable Relevancy of such evidencethatit is excluded. It is objectionable, not because it has no appreciable probative value, but because it has too much. The natural and inevitable tendencyofthe tribunal — whether judge or jury — is to give excessive weightto the vicious record of crime thus exhibited, and either to allow it to bear too strongly on the present charge, or to take proofofit as justifying a condemnation irrespective of guilt of the present charge. Moreover, the use of alleged particular acts over the entire period of the defendant’s life makes it impossible for him to be prepared to refute the charge, any or all of which may be mere fabrications. (People v. Baskett (1965) 237 Cal.App.2d 712, 715 [quoting I Wigmore, Evidence (3d ed. 1940) §§ 193, 194 p. 642], disapproved on other grounds, 91 People v. Kelley (1967) 66 Cal.2d 232, 243, fn. 5.) Subjected to the _ plethora of past crimes evidenceand the prosecutor’s argument, the jurors were boundto disregard any doubts they may have harbored about appellant’s identity, motive, or mental state. Such a risk is intolerable in a capital case. (See Garceau y Woodford (9th Cir. 2001) 275 F.3d 769, 775- 776 [convictions and sentence reversed based on introduction of other- crimes evidence andthe prosecutor’s reliance thereon in closing argument].) Dueprocess demandsthat a defendant may be punished with criminal sanctions only for specific criminal acts and not for general bad character. (Un re Winship (1970) 397 US. 358, 364; Spencer v. Texas, supra, 335 U.S.at p. 575; Michelson v. United States, supra, at pp. 489-490 (dis. opn. of Rutledge, J.); People v. Schader (1969) 71 Cal.2d 761, 772.) Appellant contends that, because the erroris of federal constitutional dimension, this Court should apply the standard of Chapmanv. California, supra, at pp. 23-24. (See McKinneyv. Rees (9" Cir. 1993) 993 F.2d 1378 [erroneous admission of bad character evidence constitutes federal constitutional error].) The standard of Chapman requires the state to prove, beyond a reasonable doubt, that the error was harmless. (Chapmanv. California, supra, 386 U.S.at pp. 23-24.) However, reversal is required 92 even applying theless stringent state standard ofPeople v. Watson (1956) 46 Cal.2d 818, becauseit is at least reasonably probable that a more favorable result would have been obtained absent the erroneous admission of the improper propensity evidence. Il. APPELLANT’S CONVICTIONS AND SENTENCE WERE OBTAINED CONTRARYTO CALIFORNIA LAW AND IN VIOLATION OF THE STATE AND FEDERAL CONSTITUTIONS BECAUSE THERE WAS INSUFFICIENT EVIDENCE OF PREMEDITATION AND DELIBERATION TO SUSTAIN THE FIRST DEGREE MURDER VERDICTS. A. Introduction. As discussed in ArgumentI, the prosecution persuadedthe court to admit an abundanceoftestimony detailing appellant’s past violent and criminal behavior; the asserted justification wasits relevanceto identity and motive pursuant to Evidence Code, section 1101, subdivision (b). The state used the past acts evidence for an additional purpose. This evidence was used to prove that appellant acted with the premeditation and deliberation needed to support the first degree murder convictions. According to the prosecutor, appellant’s history of mistreating Clari and Vallerie was evidence of his longstanding plan to exploit the entire Burgos/Montanez family. The murdervictims, Bruni and David, were family members and 93 the physical evidence pointed to appellant as the shooter. The killings were, therefore, consistent with appellant’s supposed plan. The prosecutorrelied on the existence of a plan, together with a few other circumstances, to argue that these were cold and calculated killings accomplished with premeditation and deliberation. Thestate’s first degree murder theory was not based on solid logic or firm evidence. Instead, it dependedupon speculation and interpretations of circumstantial evidence which did not compel, and in someinstances did not support, the inferences the prosecutor favored. Having been inundated with the highly emotional and inflammatory evidenceofthis family’s sad history, the jury overlooked the flaws in the prosecution’s reasoning and found appellant guilty on two countsoffirst degree murder. (13 CT 3524, 3525: 11 RT 1621, 1622.) Forall of the reasons discussed below, the evidence wasinsufficient to elevate the intentional killing from second degree murderto first degree murder andreversalis required. * 32 The jury wasinstructed on the elements of premeditation and deliberation, and the elements offirst degree murder. (CALJIC 8.20; 13 CT 3559; 11 RT 1564-1565.) The court also gave an instruction on the elements of second degree murder. (CALJIC 8.30; 13 CT 3560; 11 RT 1565.) The jurors were further instructed that if they unanimously agreed that there was a reasonable doubt about whether the murder wasofthe secondor first degree, they should return a verdict of second degree murder. (CALJIC 8.71; 13 CT 3561; 11 RT 1566.) Appellant raises several related 94 B. Overview of Legal Argument. Appellant’s first degree murder conviction lacked sufficient evidence under California law which requires “evidence whichis reasonable, credible, and of solid value -- from which a reasonabletrier of fact could find that the defendant premeditated and deliberated beyond a reasonable doubt.” (People v. Perez (1992) 2 Cal.4th 1117, 1124; see also People v. Anderson, supra, 70 Cal.2d 15; Jackson v. Virginia (1979) 443 U.S. 307, 313-314.) The first degree murder verdicts must be reversed to protect appellant’s fundamental state and federal constitutional right to due process of law (U.S. Const. Amends. V and XIV; Cal.Const., art. I, §§ 7, 15, and 16), because the “due process standard . . . protects an accused against conviction except upon evidencethatis sufficient fairly to support a conclusion that every element of the crimes has been established beyond a reasonable doubt.” (Jackson v. Virginia, supra, 443 U.S. at pp. 313-314; Mullvaney v. Wilbur (1975) 421 U.S. 684.) Additionally, the improper conviction violated appellant’s constitutional rights to present a defense (U.S. Const. Amends. V, VI, and XIV; Cal. Const., art. I, §§ 7, 15, and 16), because “[a] meaningful opportunity to defend, if not the right to a trial legal challenges to these and other jury instructions. (See ArgumentsIV; VU; VII; and, [X.) 95 itself, presumes as well that a total want of evidence to support a charge will conclude the case in the favor of the accused.” (Jackson v. Virginia, supra, at p. 314.) Finally, because the improper conviction occurredin a capital case, appellant was deprived of his constitutional rights to fair and reliable guilt and penalty determinations. (U.S. Const., Amends. VIII and XIV; Cal. Const., art. I, § 17; Beck v. Alabama, supra, 447 US.at p. 638; Woodson v. North Carolina (1976) 428 U.S. 280, 304; Johnsonv. Mississippi (1988) 486 U.S. 578, 584-585.) C. ‘Standard of Review. _ Appellate claims regarding the sufficiency of the evidenceforfirst degree murder are reviewed de novo. A reviewing court examinesthe entire record, in the light most favorable to the verdict, “to determine whetherit contains evidencethat is reasonable, credible, and of solid value, from whicha rationaltrier of fact could find the defendant guilty beyond a reasonable doubt.” (People v. Marks (2003) 31 Cal.4th 197, 230; People v. Silva (2001) 25 Cal.4th 345, 368.) D. An Unlawful Killing Is Presumed to Be Second Degree Murder under California Law. The unjustified killing of a human beingis presumedto be second, rather than first, degree murder. (People v. Anderson, supra, 70 Cal.2d at p. 96 25.) To sustain a first degree murder conviction, the prosecution must prove beyonda reasonable doubt that the defendant premeditated and deliberated before acting. (People v. Anderson, supra, at p. 25. See also Jn re Winship, supra, 397 U.S. 358; Apprendi v. New Jersey (2000) 530 U.S. 466, 488-490 [state must prove every elementthat distinguishes a greater from a lesser crime].) A killing is the product of deliberation and premeditation only if the killer acted as a result of careful thought and weighing the considerations, as with a deliberate judgmentor plan, carried on coolly and steadily according to a preconceived design. (/d. See also People v. Thomas (1945) 25 Cal.2d 880; People v. Holt (1944) 25 Cal.2d 59.) While acknowledgingthe difficulty of distinguishing first degree murder from second degree murderin certain cases, the California Supreme Court has steadfastly maintained the distinction. (See People v. Solomon (2011) 49 Cal.4th 792, 812-813 [killing resulting from preexisting reflection is “readily distinguishable from a killing based on unconsidered or rash impulse”]. See also People v. Thomas, supra, 25 Cal.2nd at p. 900; People v. Holt, supra, 25 Cal.2d 59.) “This Court has repeatedly pointed out that the legislative classification of murder into two degrees would be meaningless if ‘deliberation’ and ‘premeditation’ were construed as 97 requiring no more reflection than may be involved in the mere formation of a specific intent to kill.” (People v. Wolff(1964) 61 Cal.2d 795, 821; People v. Caldwell (1965) 43 Cal.2d 864, 869; People v. Thomas, supra, 25 Cal.2d 795.) In the absence of direct evidence of the defendant’s state ofmind, premeditation and deliberation may be inferred from circumstantial evidence. (People v. Eggers (1947) 30 Cal.2d 676, 686.) However, the evidence supporting the inference must be both credible and sufficient. (People v. Anderson, supra, 70 Cal.2d 15.) Three types of evidence are of particular interest in reviewing a jury’s finding ofpremeditation and deliberation:w evidence of the defendant’s planning activity prior to the homicide; (2) evidence of motive arising from prior relationship and/or conduct with the victim; and, (3) the mannerofthe killing, from whichit may be inferred that the defendant had a preconceived design to kill. (People v. Anderson, supra, 70 Cal.2d at pp. 26-27; People v. Wharton (1991) 53 Cal.3d 522, 546.) ** The Anderson factors are guidelines and not 33 Asthe Anderson Court noted, discernible patterns appear in the California cases. “Analysis of the cases will show that [the United States Supreme Court] sustains verdicts of first degree murder typically whenthere is evidence of all three types and otherwise requires at least extremely strong evidence of(1) or evidenceof (2) in conjunction with either (1) or (3).” (People v. Anderson, supra, 70 98 rigid requirements. “Anderson was simply intended to guide an appellate court’s assessment ofwhether the evidence supports an inference that the killing occurred as the result of pre-existing reflection rather than unconsidered or rash impulse.” (People v. Pride (1992) 3 Cal.4th 195, 247; People v. Solomon, supra, 49 Cal.4th at p. 812.) The presence ofall three factors is not a “sine qua non”to finding premeditation and deliberation, and the factors are not exclusive. (See People v. Sanchez (1995) 12 Cal.4th 1, 32; People v. Davis (1995) 10 Cal. 4th 463, 511 [Anderson’s factors are descriptive, not normative]; People v. Perez, supra, 2 Cal.4th 117, 125 [Anderson analysis “was intended only as a frameworkto aid in appellate review.”’|.) Premeditation and deliberation may be found wherethere is very strong evidence ofplanning, or some evidence of motive in conjunction with planning or a deliberate mannerofkilling. (People v. Raley (1992) 2 Cal.4th 870, 886. See also People v. Mayfield (1997) 14 Cal.4th 668.) The California Supreme Court’s flexible approach to the three part analysis ofPeople v. Anderson doesnot alter the prosecution’s burden of proof regarding premeditation and deliberation. The evidencestill must be sufficient to prove first degree murder beyond a reasonable doubt. That Cal.2d at pp. 26-27.) 99 burden wasnot metin appellant’s case. For all of the reasons discussed below, the prosecution failed to carry its burden of provingfirst degree murder beyond a reasonable doubt. This Court should, therefore, reverse appellant’s first degree murder convictions and modify the judgment to reflect convictions for second degree murder. (See, e.g., People v. Bender (1945) 27 Cal.2d 164, 186; People v. Holt, supra, 25 Cal.2d 59; Peoplev. Mendes (1950) 35 Cal.2d 537, 544.) E. The Evidence in Appellant’s Case Did Not Sustain an Inference of Premeditation and Deliberation. The evidence in this case showedthat appellant planned a threatening confrontation with his mother-in-law rather than a cold blooded killing. Accordingto the testimony, appellant desperately wanted his son back. He believed Clari had both children, and that Bruni knew where to find them. (See 7 RT 965-966[testimony of Jason Tipton].) As anyone sufficiently rational to premeditate a murder would realize, killing Bruni would notget appellant the information he wanted. The prosecutorrelied a great deal on the threats appellant allegedly directed toward Bruniin the days and weeksleading upto the shootings. (See 11 RT 1579) These threats, however, do notfit the prosecution’s first degree murder scenario. Appellant said things like, “I ought to put a gun to her head and make her 100 tell me where my sonis.” (7 RT 965-966.) To the extent that this statementreflects a “plan” as opposedto idle boasting or general complaining, the objective of the plan is a confrontation and not a murder. These statements, therefore, were not evidence of a premeditated intent to kill. Other circumstances underminethe prosecution’s case for premeditated murder and suggest another theory of the case. Appellant appearedto be disoriented and unstable after Clari left in mid-October. (See 15 RT 2130-2131 ftestimony of Emly Farmer].) On the evening of November 9" he wasdrinking heavily and using drugs. (See 7 RT 970-971 [testimony of Jason Tipton]; 7 RT 1001-1002 [testimony of Kevin Neal].) While in that condition, appellant decided to go confront Bruni. As he had done on previous occasions, he tossed the gun into the laundry basket. (See 6 RT 834-835 [testimony of Clari Burgos].) Appellant then asked Sovel for aride. These facts suggest that appellant intended to frighten Bruni in order to get what he wanted- information leading to the return of his son, Micky, Jr. The scenario described above at most indicates second degree murder rather than a premeditated and deliberate killing. 1. There was no evidence of extensive planning. Evidence of extensive planning and preparation may bea sufficient 101 basis for a first degree murder conviction. (See, e.g., People v. Pensinger (1991) 52 Cal.3d 1210, 1237-1238; People v. Wharton, supra, 53 Cal.3d at p. 548) The defendant’s planning of the crime hasoften been viewed as “the most important prong”ofthe Anderson analysis. (People v. Alcala, supra, 36 Cal.3d at p. 627; People v. Lucero (1988) 44 Cal.3d 1006; 1018.) Planning is inherent in certain methodsofkilling such as poisoning, arson or use of a destructive device.** Premeditation may be inferred from circumstantial evidence indicating that the killing was contemplated in advance. (See, e.g., People v. Hovey (1988) 44 Cal.3d 543, 556 [inference of intent supported where defendant armed himself with a knife, kidnapped 12 year-old girl, tied and blind-folded her, and drove to remote location].) Planning may also be found from circumstantial evidence in cases where the defendant’s actions are not easily explained other than as preparations for murder. (See, e.g., People v. Eggers, supra, 30 Cal.2d 676 [defendant sold wife’s rings under an assumed name and forged her signature to certificate of ownership for car]; People v. Cooper (1960) 53 Cal.2d 755 34 Therelationship of planning and preparation to culpability is reflected in a variety of statutes, including Penal Code section189, which assigns a presumption ofpremeditation for certain specified crimes: “All murder which is perpetrated by meansof a destructive device or explosive, knowing use of ammunition designed primarily to penetrate metal or armor, poison,lying in wait, torture, or by any other willful, deliberate, and premeditated killing.” 102 [premeditation and deliberation shown by defendant’s descriptionsof his time consuming, careful and surreptitious preparationsto strangle victims]; People v. Caritativo (1956) 46 Cal.2d 68, 72 [defendant forged the will of the first victim to obtain her property and then forged a suicide note for her husband(the defendant’s second victim) making it appear that the husband wasin fact the killer].) The prosecutor argued that planning was evident in appellant’s bringing the shotgun to Bruni’s house concealed in the laundry basket.* (11 RT 1579.) Clari testified that appellant had twice before placed a gun 35 The prosecutor argued: Whatdid he do? The steps he took to have to go over there? He got the shotgun. And we knowthat he took with him at least 10 rounds of ammunition, because there were four expended casings in the house, one expended casing in the gun, and there was one live round in the gun. The onelive round, No. 2, that was found outside where the shotgun was. Three more live rounds on thattrail by the lighter there. So what doesthat tell you? The defendant wantedto makesure that he took care of anyone who wasin that house. He had 10 roundsat least with him. And then he conceals the weapon,putting it into the laundry basket, taking it over there to the house. The evidence of the premeditation and deliberation in this caseis overwhelming. (11 RT 1579.) 103 inside a laundry basketto carry it into the apartment. (6 RT 834-835.) Additionally, the prosecutor noted that appellant brought at least ten rounds of ammunition with him when he went to Bruni’s house. (11 RT 1579.) These circumstances do not demonstrate the kind of detailed or carefully considered planning activity found in the California cases noted above. At most, appellant took advantage of Sovel’s offer of a ride, picked up the shotgun, placed it in the laundry basket, and went to Bruni’s.Ifthis were adequate evidence of planning every gun killing in California would meet the requirements for premeditated and deliberate first degree murder. 2. The MannerofKilling in this Case Implies a Lack of Premeditation and Deliberation. The prosecutor argued that premeditation and deliberation were implicit in the way in which the shootings occurred. (See 11 RT 1579, 1581, 1583-1584.) None of the circumstances the prosecutor noted were sufficient, considered either together or separately, to concludethat the killings were premeditated. It is inconsequential that four or more shots werefired. Death resulting from “indiscriminate multiple attacks of both severe and superficial wounds”does not establish premeditation and deliberation. (People v. Anderson, supra, 70 Cal.2d at p. 21.) Even shooting at close range does not necessarily demonstrate premeditated 104 intent to kill. (See People v. Ratliff(1986) 41 Cal.3d 675, 695-696; see also Braxton v. United States (1991) 500 U.S. 344, 349 [shooting at a federal marshal establishes “a substantial step toward [attempted murder], and perhaps the necessary intent.” [emphasis added]].) On the contrary, firing gun shots in rapid succession while in a furious rage is “consistent with a sudden, random ‘explosion’ of violence” or an eruption of “animal fury” whichis insufficient to prove premeditation and deliberation. (Peoplev. Alcala, supra, 36 Cal.3d at p. 623; People v. Tubby (1949) 34 Cal.2d 72, 78.) Evenif, as the prosecutor theorized, appellant shot Bruni and then walked up the stairs to David’s room to shoot him, these facts are not persuasive evidence ofpremeditation and deliberation in the context ofthis case. The entire incident was part of a single course of conduct whichis “consistent with a sudden, random ‘explosion’ of violence,” and not evidence of the calm, calculated thought associated with premeditation and deliberation. (People v. Alcala, supra, 36 Cal.3d at p. 623.) Cases where the defendant’s pursuit of the victim is noted as a circumstance indicating planning are distinguishable. The defendant’s pursuit of the victim after an intervening event which should have provided a “cooling down”period may indicate persistence in carrying out a preconceivedplan. (See, e.g., 105 People v. Davis, supra, 10 Cal.4th 463 [premeditation and deliberation inferred from mannerofkilling where victim was severely injured in car crash, was pursued by defendant and strangled overa period of five minutes when she was debilitated and in severe pain from internal injuries]; People v. Raley, supra, 2 Cal.4th 870 [defendant’s premeditation inferred from, inter alia, elaborate advance planning and numberofhours after stabbing during which he madea calculated decision to let victims bleed to death rather than seek medical attention]; People v. Rittger (1960) 54 Cal.2d 720, 730 [defendantattacked victim with a knife, stabbed him repeatedly and persisted in attack for some time before fatal woundsinflicted]; People v. Lunafelix (1985) 168 Cal.App.3d 97, 101-102 [entire course of conduct indicated premeditation where defendant and his friends engaged victim in conversation in a bar and then returned to their own tables, and after some interval defendant knocked the victim to the ground, met no resistance and began shooting].) 3. The prosecution did not establish a motive. Motive evidence consists of “facts about the defendant’s prior relationship and/or conduct with the victim from whichthe jury could reasonably infer a motiveto kill.” (People v. Anderson, supra, 70 Cal.2dat pp. 26-27 [emphasis added].) Such facts were not present in this case. 106 Appellant had a long history of acting out violently. According to Clari’s testimony, he had been beating her and threatening to kill her and/or other family members for years. Appellant clearly tried to dominate and control his wife and daughter. However, there was no evidence whatsoever that he had ever bullied, intimidated or threatened his mother-in-law. (Compare People v. Pride, supra, 3 Cal.4th 195, 247 [defendant killed the victim “to silence her as a possible witness to her own sexual assault”’].) Nor was there anything in appellant’s history of violence to suggest that he would formulate and carry outa plan to kill. Appellant’s behavior pattern revealed his tendencyto irrational anger and a lack of self control which occasionally led to violence. This history did not, however, support an inference of premeditated and deliberate murder. Appellant’s statements are also contrary to the prosecution’s theory of the case. According to witnesses, appellant talked about confronting Bruni to get information. This evidence was obviously inconsistent with a motiveto kill. E. Conclusion. The circumstances surrounding the shootings of Bruni and David do not imply premeditation and deliberation. Even when the evidenceis viewedin the light most favorable to the prosecution, there is insufficient support in the record from which to conclude that appellant premeditated 107 and deliberated in connection with the shootings. The prosecution cannot lawfully substitute a plausible theory for sufficient evidence. Although the context was different, the legal principle noted in a recent California Supreme Court opinion applies with equal force to appellant’s case. There, Justice Werdegarstated: That an event could have happened, however, does not by itself support a deduction or inference that it did happen. *** Jurors should not be invited to build narrative theories ofa capital crime on speculation. (People v. Moore (2011) ____ Cal.Rptr.3d__ [2011 WL 322379], at p. 13 [discussing a claim regarding the adequacyofthe foundation for a hypothetical question posed to an expert witness] [emphasis added].) Appellant’s first degree murder convictions were not supported by sufficient evidence ofpremeditation and deliberation and were, therefore, obtained in violation of state law. (People v. Anderson, supra, 70 Cal.2d at pp. 34-35.) The improper convictions also violated appellant’s federal constitutional rights to due process of law. (Jackson v. Virginia, supra, 443 USS.at pp. 313-314.) For all of the reasons discussed above, this Court mustreverse appellant’s first degree murder convictions. 108 Hi. THE EVIDENCE DID NOT ESTABLISH THAT APPELLANT HAD BEEN LYING-IN-WAIT. A. Introduction and Overview. Appellant was charged with two counts offirst degree, premeditated murder in the deaths of Bruni and David. For each murder count, it was alleged that the murders were committed while lying-in-wait within the meaning of Penal Code section 190.2, subdivision (a) (15). *° Twotheories, premeditated and deliberate murder and lying-in-wait murder, were premised on the same facts and evidence. According to the prosecution, appellant hid the shotgun in the laundry basket and arrived at Bruni’s pretendingto be there to return some of Clari’s clothes. Using this ruse, he 36 At the time of the homicides, this sub-section made a defendant death eligible if “[t]he murder was committed while the defendant was lying-in-wait.” (Former Pen. Code §190.2, subd. (a) (15) [Stats. 1998].) In the year 2000, Section 190.2, sub-division (a) (15), was amendedto state that this special circumstance requires that the murder occur “by means of lying-in-wait.” The crimes at issue in appellant’s case occurred in Novemberof 1998. The amendmenttherefore did not apply to appellant pursuantto the prohibition on ex postfacto laws in the California and United States Constitutions. (U.S. Const., art. I, § 10; Cal-Const., art. I, § 9; People v. Alvarez (2002) 100 Cal.App.4th 1170, 1178 [a statute that inflicts greater punishment than the applicable law when the crime was committed is an ex postfacto law], citing Collins v. Youngblood (1990) 497 U.S.37, 42-43.) 109 gainedaccess to the house and then shotthe victims. The requirements of the lying-in-wait special circumstance are more stringent than the requirements for lying-in-wait murder. (See, e.g., People v. Russell (2010) 50 Cal.4th 1228 [242 P.3d 68, 82, fn. 3].) The special circumstance requires proof beyond a reasonable doubtthat the crime was preceded by a “substantial period of watching and waiting.” (People v. Lewis (2008) 43 Cal.4th 415, 508; People v. Jurado (2006) 38 Cal.4th 72, 119.) The California Supreme Court has not specified the minimum amount oftime of watchful waiting necessary to the special circumstance, and the Court has indicated that a brief period of time might suffice in particular cases. (People v. Russell, supra, 242 P.3d at p. 68.) In appellant’s case, however, there is no evidence of watchful waiting. The evidence at most establishes concealment ofpurpose whichis insufficient. (People v. Lewis, supra, 43 Cal.4th at p. 508.) Because the evidence was insufficient to sustain the jury’s special circumstance findings, appellant was deprived ofhis rights to due process of law and a fair trial under both the state and federal constitutions. (U.S. Const., Amends. V, VI and XIV; Cal. Const., art I, §§ 5, 15 and 16.) This Court should vacate the jury’s true finding on the lying-in-wait special circumstance. (People v. Lewis, supra, 43 Cal.4th at p. 509.) 110 B. The Legal Standard. The Due Process Clause of the Fourteenth Amendment requires that there be sufficient evidence, found to be true beyond a reasonable doubt, of each element of a charged crime. (Jackson v. Virginia, supra, 443 U.S.at pp. 315-319.) In Jackson v. Virginia, the United States Supreme Court defined sufficient evidence as that which allowsthetrier of fact to reach a “subjective state of near certitude of the guilt of the accused. . .” (Jacksonv. Virginia, supra, 443 U.S. at p. 315.) California’s legal standard for sufficiency of the evidenceis well-settled. When viewedin the light most favorable to the judgment, there must be “substantial evidence, 1.e., evidencethat is credible and of solid value from whicha rationaltrier of fact could have found the defendant guilty beyond a reasonable doubt.” (People v. Green (1980) 27 Cal.3d 1, 55; People v. Johnson (1980) 26 Cal.3d 557, 578.) The same standard applies to special circumstance findings. (People v. Stevens (2007) 41 Cal.4th 182, 201; People v. Carter (2005) 36 Cal.4th 1215, 1258.) C. Proceedings Below. 1. The prosecution’s evidence and argument. Onepiece of evidence was emphasized and claimedto be conclusive proof ofpremeditation and deliberation. On two previous occasions, 11] appellant carried a shotgun orrifle into his apartment concealed inside a laundry basket covered with clothing.”’ (6 RT 834.) Clari testified that the most recent incidence was around one month before the crimes. (6 RT 834- 835.) She told appellant that she objected to having a gun when they had children in the home. (6 RT 835.) Appellant then put the gun back into the basket, placed the laundry basketinside the trunk of his car, and droveoff. (id) In closing argument, the prosecutorfirst addressed the evidence claimed to prove premeditation and deliberation. The prosecutor noted appellant’s threats to Clari, his desire to control her and the evidence that he put sugar in the gas tank of her car. (11 RT 1578.) The prosecutor also relied on appellant’s comments to Jason Tipton and Kevin Neal where, referring to Bruni, he reportedly said “I oughtto put a gun to her and make her call Clari. I ought to put a gun to her head and make her return my son.” The prosecutor argued: “Whatis that telling you . . . [t]he defendant 37 Defense counsel objected on notice grounds. (6 RT 786-787.) The prosecution had previously advised that Clari would testify to one incident with the laundry basket. The prosecutor stated that Clari had only told her about the second incident when they metto prepare for her testimony the evening before. (6 RT 786.) The court allowed the testimony, finding that there had been no discovery violation under Penal Code section 1054. (6 RT 788.) 112 was expressing to Jason Tipton whathis state of mind was aheadoftime.” (11 RT 1579.) Other circumstances were viewed as “steps” appellant took in preparation. Here the fact that appellant “got the shotgun,” and “took at least 10 rounds of ammunition.” (11 RT 1579.) Finally, the laundry basket was the definitive evidence ofpremeditation and deliberation. The prosecutor argued: “and then he conceals the weapon,putting it into the laundry basket, taking it over there to the house. The evidence of the premeditation and deliberation in this caseis overwhelming.” (/d.) Next the prosecutor reviewed the evidence claimed to support first degree murder based on the lying in wait theory. According to the prosecutor, Clari’s testimony proved that appellant had made a “plan” to use the laundry basket to hide the gun. The prosecutorstated: The judge just read to you an instruction of the theory first-degree murder, lying-in-wait. And this is my attempt to summarize it here. “Murder, which is immediately preceded by lying-in- wait is murder of the first degree.” That’s what the judge just read to you. So ifyou find that the facts fit this, which I submit that they do, this is automatically first degree. There. is no first or second here. The term “lying-in-wait” is defined as, “A waiting and watching for an opportune time to act, and concealment by ambush or by someothersecret design to take the other person by surprise even thoughthe victim is aware of the murderer’s presence.” So what does that mean? When you think ofthis in 113 layman’s terms, “lying-in-wait,” you think of the killer hiding in the bushes until the person comes out and concealedtheir person. But that’s why those words,“even though the victim’s aware of the murderer’s presence”are in bold because the law says, no, you canstill conceal your purpose andstill see the murderer, which is exactly what happenedin this case. Whenthe defendant used that ruse to get into that house, he wasacting like he was doing a goodthing, returning Clari’s clothes so that Bruni would open the door. Of course if he had the shotgun there, she wasn’t going to open the door so he usesthe clothes as a ruse to get in there. He’s concealing his purpose from her. Hehas secret design. Then welook at the bottom one, “The lying in wait need not continue for any particular period of time, as long as the duration showsthe state of mind equivalent to premeditation or deliberation.” Remember what Clari told you? She had seen the defendant carrying the guninto their apartment. Carrying a guninto their apartment on twoprior occasions, two other guns the same way. So the defendant hadthis plan going for a long time. This is how I can get the gun overthere because I’ve doneit before. Nobodyis going to think anything twice. Who’s going to think a shotgun would bein the laundry basket? Noone. He concealed his purpose from her. Hewaited for his golden opportunity. He caught her by surprise and he ambushedher. Thatis lying-in-wait. (11 RT 1580-1581.) The prosecutorreturned to the lying-in-wait special circumstanceasthe last area she discussed in closing argument. Once again, the concealed shotgun is the stated basis for the special circumstance. [Y]ou haveto figure out what is the lying in wait special circumstance. Well, the whole first part of the instruction is exactly like the wording that we heardin that 114 theory offirst-degree murder. Andthat instruction is very long as well. The judge just read it to you. Here’s my shorthand version. The sameas first degree murder — concealment, waiting, and killing all occurred during the sametime, concealing of the purpose, waiting for the moment to act and then killing, all must happen at the same timeor in an uninterrupted attack beginning when the concealmentends. Here, the concealment ends the momentthe defendant pulled that shotgun out of the laundry basket and then Bruni knew what was up. That’s when the concealment ends. They both apply in this case. So what do you need? Well, the instruction says you need more than just a mere concealment of purpose. You also need a substantial period ofwatching and waiting, which we have in this case, and immediately thereafter a surprise attack on an unsuspecting victim from a position of advantage. Clearly that is what we have in this case. She had no idea what was coming or she would have never opened the door and let the defendantin. I submit to you that that special circumstanceis supported by the evidence as to both of the victimsin this case. (11 RT 1583-1584.) 2. The jury instructions. Thetrial court gave the following version of CALJIC 8.25 to address the first degree murder pursuantto a lying in wait theory: Murder which is immediately preceded by lying-in- wait is murderofthe first degree. The term “lying-in-wait” is defined as waiting and watching for an opportune timeto act, together with a concealment by ambushor by someother secret design to take 115 the other person by surprise even though the victim is aware ofthe murderer’s presence. The lying in wait need not continue for any particular period of time providedthatits duration is such as to show state of mind equivalent to premeditation and deliberation. (13 CT 3560; 11 RT 1565.) The special circumstance instruction given was CALJIC 8.81.15, stating: To find that the special circumstance referred to in these instructions as murder while lying-in-waitis true, each of the following facts must be proved: 1. The defendantintentionally killed the victim, and 2. The murder was committed while the defendant was lying-in-wait. The term “while lying-in-wait” within the meaning of the law of special circumstances is defined as a waiting and watching for an opportunetimeto act, together with a concealment by ambush or by someothersecret design to take the other person by surprise even though the victim is aware of the murderer’s presence. The lying-in-wait need not continue for any particular period of time provided thatits duration is such as to show state of mind equivalent to premeditation or deliberation. Thus,for a killing to be perpetrated while lying-in- wait, both the concealment and watchful waiting as well as the killing must occur in the same timeperiod, or in an uninterrupted attack commencingnolater than the moment the concealment ends. If there is a clear interruption separating the period of lying-in-wait and the period in whichthe killing take place, so that there is neither an immediate killing or a continuous flow 116 of the uninterrupted lethal events, the special circumstance is not proved. A mere concealment of purposeis not sufficient to meet the requirement of concealmentset forth in this special circumstance. However, when a defendant intentionally murders another person, under circumstances which include (1) aconcealment of purpose, (2) a substantial period of watching and waiting for an opportune timeto act, and (3) immediately thereafter a surprise attack on an unsuspecting victim from a position of advantage, the special circumstance of murder by lying-in-wait has been established. (13 RT 3562; 11 RT 1567-1568.) D. There Was No Evidence of Watchful Waiting to Sustain the Special Circumstanceor the First Degree Murder Theory. Asthis Court recently observed, there is considerable overlap between the lying-in-wait special circumstance and lying in wait as a theory offirst degree murder; some period of “watching and waiting”is essential to both. (People v. Russell, supra, 242 P.3d at p. 68.) The lying- in-wait special circumstance requires proof of: “an intentional murder, committed under circumstances which include (1) a concealment of purpose, (2) a substantial period of watching and waiting for an opportune time to act, and (3) immediately thereafter, a surprise attack on an unsuspecting victim from a position of advantage.” (People v. Morales (1989) 48 Cal.3d 527, 558; see also People v. Hillhouse (2002) 27 Cal.4th 117 469, 500; People v. Carpenter (1997) 15 Cal.4th 312, 388.) The requirements of lying-in-wait first degree mourder under Penal Code section 189 are “slightly different” from the lying-in-wait special circumstance under Penal Codesection 190.2, subdivision (a)(15). (People v. Ceja (1993) 4 Cal.4th 1134, 1140, fn. 2.) Section 189 provides that a murder “perpetrated by meansof ” lying-in-wait is first degree murder. The time spentlying-in-wait must be ofsufficient duration “such as to show state of mind equivalent to premeditation anddeliberation.” (See CALJIC 8.25; 13 CT 3560; 11 RT 1565.) When usedas first degree murder theory, all three of the elements above must be proven, but then the lying-in-wait serves as “the functional equivalent ofproof of premeditation, deliberation andintent to kill.” (People v. Stanley (1995) 10 Cal.4th 764, 794-795; People v. Hardy (1992) 2 Cal.4th 86, 162-163. See also, 89 A.L.R.2d 1140 [Homicide: What constitutes “lying-in-wait”].) The California Supreme Court has not determined what amount of time constitutes “a substantial period of watching and waiting.” ** 38 Thecritical distinction between lying-in-wait as a means of committing first degree murder, and the lying-in-wait special circumstance is the “temporal element,” which creates a “thin but meaningfully distinguishable line betweenfirst-degree murder by means of lying-in-wait and capital murder with the special circumstances of lying-in-wait.” (Houston v. Roe (9" Cir. 1999) 177 F.3d 901, 908. See also People v. 118 However, the Court has often described the paradigm case for a conviction ofpremeditated murder based on a lying-in-wait theory. Underthe “typical scenario” for the lying-in-wait special circumstance, the killer watches and waits for the victim to fall asleep. (See People v. Michaels (2002) 28 Cal.4th 486, 516 [“[w]aiting and watching until a victim falls asleep before attacking is a typical scenario of a murder by meansoflying-in-wait”’]; People v. Ruiz (1988) 44 Cal.3d 589, 615 [“[f]Jrom such evidence,the jury reasonably could infer that defendant watched and waited until his victims were sleeping and helpless before executing them”’]; People v. Cole (2004) 33 Cal.4th 1158, 1206 [evidence established that “defendant had watched and waited until the victim was sleeping and helpless before he poured the flammable liquid on her andignited it”’].) The “sleeping victim”is not the only scenario capable of sustaining a lying in wait special circumstance. However,in other decisions upholding — the special circumstance findings the defendant had time to reconsider his Morales, supra, 48 Cal.3d at p. 557; People v. Moon (2005) 37 Cal.4th 1, 22, 32.) While this temporal element has been addressed in California case law, most of the analyses have focused on aspects slightly different from the length of time required. (See, e.g., People v. Morales, supra, at p. 558 [killing must either be contemporaneouswith or “follow directly on the heels of the watchful waiting.”]; People v. Gutierrez (2002) 28 Cal.4th 1083, 1149 [“the killing [must] take place during the period ofconcealment and watchful waiting.” [emphasis in original].) 119 or her plan andpersisted, often using the “watching and waiting”period of time to perfect the crime. (See People v. Edwards (1991) 54 Cal.3d 787 [“jury could reasonably infer defendant waited and watched until [victims] reached the place ofmaximum vulnerability before shooting”]; People v. Michaels, supra, 28 Cal.4th at p. 517 [defendant and companion concealed themselves outside of victim’s apartment, waited one half hour after her lights went out for getawaycar to arrive, then wentinsideto kill her]; People v. Hillhouse, supra, 27 Cal.4th at pp. 500-501 [substantial period of watching and waiting for opportune timeto attack from position of advantage].) Appellant’s caseis readily distinguishable from the classic “sleeping victim” murder. Herethere was no period ofwatching and waiting precedingthe killings. All of the evidence indicates that the shootings occurred within moments of appellant’s arrival. Appellant’s friend, J.D. Sovel, drove appellant to Bruni’s that night. He and appellant pulled into the driveway at 10:40 p.m. Both men got out of the car, and had a brief conversation before Sovel left. (1 CT 61-62.) Appellant was so drunk and high that Sovel would not let him borrowthe car. Appellant retrieved some bags of clothing and the laundry basket from Sovel’s car, and walked to Bruni’s front door. (1 CT 61-62.) As he backed out of the driveway, Sovel 120 saw appellant standing on the threshold. Bruni had opened the door, and Sovel looked back through the passenger side window to see appellant walk into the house carrying the laundry basket and the bags. (1 CT 62.) Next- door neighbor Sarah Phipps, and the other neighbor, Mr. Valdez, testified that the shots came between 10:30 and 10:45 p.m. (7 RT 934-935; 1059- 1060.) Bruni’s body was foundjust inside the front doorcloseto the stairs. (See 9 RT 1237 [testimony of Ronald Heim].) Evidence from multiple sources indicates that appellant made no effort to watch and wait in order to gauge an optimaltimeto attack. Nothing in appellant’s activities in the weeks before the shootings implied that he was watching Bruni and waiting to catch her unawares. The several hours leading up to the crimes do not suggest preparation. It was undisputed that appellant was at home in his apartment on the evening of November9, 1998. Appellant had spent the entire evening drinking heavily, using drugs and playing dominoes with his downstairs neighbors. (See, e.g., 7 RT 971-974 [testimony of Jason Christopher Tipton].) There wasnotestimony indicating that he had any plans to go outthat night. Appellant’s plans changed purely by chance and for reasons notrelated to any activities of the victims. Appellant’s friend, J.D. Sovel, happened to stop by the apartment that evening at approximately 8:45 p.m. (1 CT 59.) 121 The domino gamebroke up at approximately 10:30 p.m. (7 RT 1025 [testimony of Kevin Neal].) At that point, appellant asked Sovelfora ride over to Bruni’s house. (1 CT 60.) (Compare People v. Hyde (1985) 166 Cal.App.3d 463 [defendant disguised as police officer stopped victim’s car on freeway, evidenceestablished that defendant had beenstalking the victim at the victim’s workplace for several days, and after the stop defendant kidnappedthe victim to move him to a less visible location before the killing].) The prosecution emphasized appellant’s supposed “plan” to conceal the gun, arguing thatthis concealment of purpose was strong evidence of lying-in-wait. Appellant disagrees with the characterization ofthis conveyanceas a plan. However, even if appellant’s use of the laundry basket could be considered a “plan,” concealment alone is not enough to support the lying-in-wait findings. The applicable jury instruction for the lying-in-wait special circumstance states “[a] mere concealmentofpurpose is not sufficient to meet the requirementof concealment set forth in this special circumstance.” (CALJIC 8.81.15 [emphasis addded].) Both concealment and a substantial period of watching and waiting must be proven. The California Supreme Court has insisted on proofofboth elements. Recently, the Court held: 122 a person may satisfy the requirement by concealing both his purpose andpresence,or only his purpose, not presence, so long as he watches and waitsfor a substantialperiod and then launchesa surprise attack from a position of advantage. (People v. Bonilla (2007) 41 Cal.4th 313, 333, citing, People v. Stevens, supra, 41 Cal.4th at pp. 203-204.) Appellant’s use of the laundry basket was not sufficient on its own. Concealment ofpurpose may be one componentof lying-in-wait, butit must be accompanied by other factors. In People v. Gutierrez, supra, 28 Cal.4th 1083, the defendant planneda trip to where the victim andhis second wife lived. The defendant brought his son alongto help carry out the plan. He parked his van on a hill nearby, and they watched and waited for several hours until the couple returned home. It was Halloween night, and the defendant and his son put on masksto get the victims to open the door. People v. Gutierrez is similar to appellant’s case insofar as the use of a ruse to get inside the victims homes. This, however, is the only common feature and the ruse wasnot the determining factor in the California Supreme Court’s decision to uphold the special circumstance there. The evidence established that the defendant in Gutierrez did considerable planning(i.e., bringing his son, procuring appropriate masks, and timing the journey to coincide with Halloween) and spent several hours watching and 123 waiting to carry out his preconceived design. Appellant’s case is different. There was no comparable evidence of preparation in this case, even with the use ofthe laundry basket. Appellant . ended up at Bruni’s that evening purely by chanceafter James Sovel stopped by unexpectedly. By the time appellant asked Sovelfor a ride (at approximately 10:30 p.m.) he was highly intoxicated in addition to being mentally unbalanced. Most notably, appellant spent no timeatall watching and waiting. All of the evidence indicates that events unfolded in rapid succession. Given these circumstances, the evidence does not permit the same inference of premeditation and deliberation as a substantial period of “watching and waiting” might have allowed. The prosecution persuaded the jury to adopt its theory by piling up a series of mutually reinforcing inferences. This is not competent and sufficient evidence. The jury may baseits findings on “reasonable inferences,” but cannot rely on “suspicion alone, or on imagination, speculation, supposition, surmise, conjecture, or guess work.” (People v. Morris (1988) 46 Cal.3d 1, 21 [internal citations omitted].) The California Supreme Court has confronted a case similar to. appellant’s in this respect. In People v. Lewis, supra, 43 Cal.4th 415, the Court reversedthe jury’s finding, holding that the evidence wasinsufficient to support the lying-in- 124 wait special circumstance. The defendant faced capital chargesarising from a series of robberies and murders. With respect to one incident, a codefendanttestified that the plan had been to drive aroundto find a nice car which they would intentionally “bump” into. After forcing the other driver to stop to deal with the minortraffic accident, the defendants planned to steal the car and any valuables and to shoot the driver if they met with any resistance. (/d at p. 509.) The defendant admitted to demanding the car keys from the victim, Avina, then shooting Avina and taking property from Avina’s truck. The Supreme Court found that the codefendant’s statement should not have been admitted, and further found that without the statement the evidence of lying-in-wait was insufficient. No admissible evidence established that the taking of the truck and the other property was not an afterthought following a genuinetraffic accident and a confrontation with the victim. The Court noted that the physical evidence was equivocal: Finally, the physical evidence of the mannerofthekilling did not supply the missing “watching and waiting” evidence. Althoughit suggested that defendant shot Avina while Avina wassitting up and facing forward, the physical evidence shed no light on what occurred before the confrontation with and the killing of Avina. (Id at p. 508.) Appellant’s case was similarly lacking in evidence. The State has 125 not metits burden ofproving beyond a reasonable doubtthat the killings of Bruni and David constituted lying-in-wait special circumstance murderor first degree murder on a lying-in-wait theory. Reversal is required because the evidence was insufficient as a matter of law to support either the Penal Code section 190.2, subdivision (a) (15) special circumstance findings or the first degree murder conviction. IV. THE JURY INSTRUCTIONS PERTAINING TO THE LYING IN WAIT SPECIAL CIRCUMSTANCES AND THE FIRST DEGREE MURDER THEORY WERE CONFUSING AND DEPRIVED APPELLANT OF A FAIR TRIAL. A. Introduction and Overview. In the guilt phase of appellant’s capitaltrial, the jury was given convoluted and contradictory instructions concerning the lying-in-wait special circumstance andfirst degree murder by lying-in-wait. The special circumstanceinstruction, CALJIC 8.81.15, was lengthy, confusing and internally inconsistent. This instruction also conflicted with other instructions specifically defining key concepts utilized within CALJIC 8.81.15, such as premeditation and deliberation. CALJIC 8.81.15 (special circumstance, lying-in-wait) and CALJIC 8.25 (first degree murder, lying- in-wait) used identical language to state the temporal elementsofthe 126 crimes, leaving jurors with no meaningful way to separate lying-in-waitfirst degree murderfrom the lying-in-wait special circumstance. By giving these instructions, the trial court violated appellant’s state and federal constitutional rights to a fundamentally fair jury trial, to due process of law, and to a reliable verdict and penalty determination. (U.S. Const., Amends. V, VI, VII and XIV; Cal. Const., art. I, §§ 7 and 15.) Forall of the reasons set forth below, appellant’s convictions and sentence of death must beset aside. B. TheInstructions Pertaining to Lying-in-wait Were Confusing and Inconsistent. Appellant’s jury was instructed on the elements ofthe lying-in-wait special circumstance with CALJIC No. 8.81.15. The versionthis court used included the final paragraph which wasset in brackets in the CALJIC Volume. (See CALJIC No. 8.81.15 (6" ed. 1996).) To find that the special circumstance referred to in these instructions as murder while lying in wait is true, each of the following facts must be proved: 1. The defendant intentionally killed the victim, and;. 2. The murder was committed while the defendant was lying-in-wait. 127 The term “while lying-in-wait” within the meaning of the law of special circumstances is defined as a waiting and watching for an opportunetime to act, together with a concealment by ambush or by someother secret design to take the other person by surprise even though the victim is aware of the murderer’s presence. The lying-in-wait need not continue for any particular period of time provided thatits duration is such as to show a state ofmind equivalent to premeditation or deliberation. Thus, for a killing to be perpetrated while lying-in- wait, both the concealment and watchful waiting as well as the killing must occur in the sametime period, or in an uninterrupted attack commencing nolater than the moment the concealment ends. If there is a clear interruption separating the period of lying-in-wait from the period during whichthekilling takes place, such thatthere is neither an immediatekilling nor a continuous flow of the uninterrupted lethal events, a special circumstanceis not provec A mere concealmentofpurpose is not sufficient to meet the requirement of concealmentset forth in this special circumstance. However, when a defendantintentionally murdersanother person, under circumstances which include (1) a concealment of purpose, (2) a substantial period of watching and waiting for an opportunetimeto act, and (3) immediately thereafter a surprise attack on an unsuspecting victim from a position of advantage, the special circumstance of murder by lying-in-wait has beenestablished. (13 RT 3562; 11 RT 1567-1568.) Thelength of this instruction alone is cause for concerns about juror comprehension. The California Supreme Court has consistently urged lower courts to translate legal principles for juries with brevity and simplicity. “It cannot be overemphasizedthat instructions should be clear 128 and in order to avoid misleading the jury.” (See, e.g., Guerra v. Handlery Hotels, Inc.(1959) 53 Cal.2d 266, 272.) This instruction, however, contains even moreserious flaws. CALJIC 8.81.15 is internally inconsistent in its treatment of major elements of the crime. The temporal element of lying-in-waitis conceptualized differently from one paragraph to another. In the second paragraph, CALJIC 8.81.15 states: “The lying-in-wait need not continue for anyparticular period oftime provided that its duration is such as to show state of mind equivalent to premeditation and deliberation.” (CALJIC 8.81.15, § 2.) The court in appellant’s case included the bracketed paragraphsat the endofthe instruction. There, jurors were told that the special circumstance of lying-in-wait is established where thereis, inter alia, a “substantial period” of watching and waiting for an opportune time to act. (13 CT 3562; 11 RT 1567-1568.) The instruction is thus internally inconsistent with respect to a critical element of the special circumstance.’ It is also at odds with the central concepts ofpremeditation 39 Similar inconsistencies plagued the element of concealment. First jurors were advisedthat “concealment by ambush”or “someother secret design” would suffice, “even though the victim is aware of the murderer’s presence.” (CALJIC 8.81.15 at § 2.) However, in the fifth paragraph appellant’s jurors were told that a “mere concealment of purpose”is not sufficient. (CALJIC 8.81.15, 95.) There must also be a “position of advantage,” but this pertains only if there is a “a substantial period of 129 and deliberation as these were defined elsewhere in the set ofjury instructions. CALJIC 8.20 in its final paragraph told the jury that premeditation and deliberation could potentially last only a “short period,” no more than neededto weigh and consider the question of killing. (13 CT — 3560; 11 RT 1565.) C. The Instruction on Lying-in-wait, First Degree Murder Was Improper. In addition to the special circumstance instruction of CALJIC 8.81.15, the jurors were instructed with CALJIC 8.25 setting forth the elements offirst degree murder pursuantto a lying-in-wait theory: Murder which is immediately preceded by lying-in- wait is murderofthe first degree. The term “lying-in-wait” is defined as waiting and watching for an opportunetimeto act, together with a concealment by ambushor by someothersecret design to take the other person by surprise even though the victim is aware of the murderer’s presence. The lying-in-wait need not continue for any particular period of time provided thatits duration is such as to show a state of mind equivalent to premeditation and deliberation. The word “premeditation” means considered beforehand. watching and waiting.” In the first part of the instruction, watching and waiting need not take any longer than the premeditation required for a first- degree murder. (/d.) 130 The word“deliberation” means formedorarrived at or determined as a result of careful thought and weighing of considerations for and against the proposed courseofaction. (13 CT 3560; 11 RT 1565.) D. The Instructions on the Temporal Elements of Lying-in- wait Were Identical for Both Crimes. The temporal element of lying in wait, first degree murderis stated in CALJIC 8.25 in the identical language used in the special circumstance instruction, CALJIC 8.81.15, paragraph two. Both jury instructions providedin relevant part: “The lying-in-wait need not continuefor any particular periodoftime provided thatits duration is such as to show a state ofmind equivalent to premeditation anddeliberation.” (See 13 CT 3560, 11 RT 1565 [CALJIC 8.25]; 13 CT 3562, 11 RT 1567-1568 [CALJIC 8.81.15] [emphases added].) Asthis Court recently specified, “first degree murder by means of lying in wait. . . is distinct from intentional murder while lying in wait, as required by the related but distinct special circumstance.” (People v. Russell, supra, 242 P.3d at p. 68, fn. 3 [emphasis 40 The version of CALJIC 8.25 in the Clerk’s Transcript omits the last two paragraphs defining premeditation and deliberation. These paragraphs appearin brackets in the CALJIC Volume. (See CALJIC No. 8.25 (6"ed. 1996).) The Reporter’s Transcript reveals that the jury was verbally instructed with these final two paragraphs. (See 11 RT 1565.) 131 in original].) A constitutional sentence requires that jurors be given ‘standards by which they may meaningfully distinguish a first degree premeditated murder from a deatheligible, special circumstance killing. (Godfrey v. Georgia (1980) 446 U.S. 420, 427; Peoplev. Holt (1997) 15 Cal.4th 619, 697.) In appellant’s case, the jury instructions stated the temporal element in the same way leaving the jurors no basis for making such adistinction. *! This Court has repeatedly upheld the CALJIC 8.25 instruction on the elementsof lying-in-wait murder. (People v. Russell, supra, 242 P.3d at p. - 82, citing, People v. Moon, supra, 37 Cal.4th at >. 23; People v. Hardy, supra, 2 Cal.4th 86, 161-163.) In People v. Russell, however, the instructions addressed only the murdertheory and not the lying-in-wait special circumstance. (People v. Russell, supra, 242 P.3d at p. 82, fn. 3.) Thatcasedid notpresent the confusing predicament of appellant’s jurors who wereleft to puzzle through two related but supposedly distinct 4l As discussed above,the fifth paragraph of CALJIC 8.81.15 contains anothervariation ofthe temporal element, requiring “a substantial period of watching and waiting.” (See Section B.) This would seem only to add to the confusion. It is not a basis on which to contend that the jury may have distinguished between the elements of the two crimes,first because the internal inconsistency of 8.81.15 was confusing, and second becauseit is impossible to know whichofthe instructions the jurors actually followed. (See People v. Rhoden (1972) 6 Cal.3d 519, 526.) 132 instructions on rather esoteric legal concepts. Assuming, arguendo, that the version of CALJIC 8.25 given to appellant’s jury was a correct statement of the law, reversalis still necessary. Where the jury is given an incorrect instruction, merely giving a correct one as well doesnot cure the harm asit is impossible to know whichofthe instructions the jurors actually followed. (See People v. Rhoden, supra, 6 Cal.3d 519, 526.) Reversal is, therefore, required. V. THE TRIAL COURT ALLOWEDTHE JURY TO CONSIDER IRRELEVANT AND HIGHLY PREJUDICIAL VICTIM IMPACT TESTIMONYIN THE GUILT PHASE OF APPELLANT’STRIAL. A. Introduction. The guilt phase testimony in appellant’s case included substantial descriptions of the survivor’s immediate reactions to the murders. Clari - gave a lengthy account ofhow she received the news, and also described her reactions upon viewing the crime scene. Richie testified about returning hometo find the bodies of his mother and brother.’ Other witnesses, 3 42 Richie’s understandable shock and upset are apparent from his testimony. Richie was a percipient witness and appellant does not contend that his guilt phase testimony was improper victim impact. However, the other witnesses should not have included descriptions ofthe crime’s effect on Richie in their guilt phase testimony. 133 includingfriends, neighbors and police, described Richie’s intense emotional distress and hysteria in the late evening ofNovember 9" and the early morning hours ofNovember 10". This testimony was in fact victim impact evidence which had no relevanceto the jury’s guilt phase determinations. (See, e.g., People v. Smith (2005) 35 Cal.4th 334, Payne v. Tennessee (1991) 501 U.S. 508; People v. Haskett (1982) 30 Cal.3d 841.) Moreover,the testimony was an improper appealfor sympathy of the type the California Supreme Court has repeatedly found to be “out ofplace during an objective determination of guilt.” (People v. Jackson (2009) 45 Cal.4th 662, 691.) Forall of the reasons discussed below,this Court should reverse appellant’s convictions. B. The Evidence and Testimony. 1. Clari Burgos. Clari left appellant on Thursday, October 15, 1998, and she and the children flew to Puerto Rico on Sunday, October 18, 1998. (6 RT 827.) In her direct examination in the guilt phase, Clari gave a detailed account of how she learned of her mother’s and brother’s deaths on November10, 1998: November 9" I didn’t talk to my mom all day so I was anxious because I’m used to talking to my mom every day. I really couldn’t sleep. And I wokeupreally early too because I wanted to talk to her. And I had to wait because there’s a 134 time difference between Puerto Rico and here. So I waited and waited. And whenI thought it was, like, 6:45, 7:00 in the morning,I figured my mom would be awake because she would have to take David to schoolso I called on the phone on the 10". *** And the phone rang and rang and nobody answered. Andthen finally the answering machine came on and I left my mom a message. “Where are you? I don’t — I can’t believe you’re not home. I want to talk to you. | haven’t talked to you all day yesterday. Call me when you get this message.” ButI didn’t realize that she was already gone, and that she wouldn’t reply to my message. ok He 2 ok My Uncle Quiles called and he spoke to melater on that day over the phone. Andhe said, “Are yousitting down? Are yousitting down?” AndI said, “Yeah, why? What’s the matter?” Hesaid, “I have bad news. Your mom and your brother are dead.” And I said, “Yeah, whatever.” And because he joked arounda lot with me, not aboutthat kind of thing, but he played with melike that so I didn’t believe him. I said, “Yeah, whatever.” Andhesaid,“Put your aunt on the phone. Put your aunt on the phone.” So I gave the phone to my Aunt Rose. 28 2K OK So my Aunt Rose, he wastalking to her on the phone, and she didn’t let it be obvious to me becauseI wassitting there. Her face didn’t change. So they were talking on the phone and my Auntput the phone downandshe said, “Go ahead and go. Do what you have to do.” And I gotin the car. Andshesaid, “Take your grandmother with you.” a8 ok ok So I took my grandmother with me and got in my Aunt Rose’s car and we went around the corner to put gas in the car. And when I was pumpingthe gas, that’s when I was realizing like something isn’t right. Why would she ask me to take my grandmotherto a job interview? 135 And so I’m pumpingthe gas and I realized something wasn’t right so I went backto the house. But by then someof my family members werein the driveway, and they wouldn’t let me comein. 38 ok OK So then somebody — one ofmy aunt’s [sic]— one ofmy aunt’s husband[sic] came and picked me up. And I was asking, “What happened? What happened?” Andthey wouldn’t tell me what happened. So he didn’t know how to tell me so he wanted to take me over to my Aunt’s job to pick her up so that maybe she could tell me. She’s like the head of the family over there. “* *** And we wentto her job to pick her up. And weleft my grandmother there. She went to a neighbor’s house, or something. Or she — they let her come inside the house. We left my grandmotherthere. Wewentto go pick up my Aunt Carmen. And when she cameto the car, she already knew. I guess my Aunt Rose had called her, but she didn’t tell me either. We were driving around. And they wanted to go to my grandmother’s doctor because my grandmotherhad previously had a stroke, and they didn’t want herto suffer another stroke becauseofthis. So we wentto talk to her doctor to get some medication. ok 2k ok ok oe Then [after going to the doctor’s office] I kept asking her, “Tell me what happened. Tell me now. I want to know what happened.”Is my mom okay?” Becauseby then I figured out from the previous phone call that something had happened. So wepulled over. Andthis is in this parking lot somewhere. And wegot out of the car and she told methat my mom had passed away. 43 The aunt was identified as one of Bruni’s sisters, Carmen Montanez Echevarria. She is not the same person as the Carmen Burgos whotestified at trial. (6 RT 829.) 136 (6 RT 827-830.) Clari was told about David at the same time. In response to the newsshetestified, “I just lost it.” (6 RT 830.) Clari continued her testimony,relating her conversation with Detective Michelle Amicone- who,as the lead investigator for the Riverside County District Attorney’s Office, was present in court when Clari testified: I went back to the house, but they still wouldn’t let me in because I was emotional. And theystill hadn’t told my grandmother what had happened. So I went to a neighbor’s house. And at the neighbor’s house I spoke — somehow Michele called and *** I spoke to Michele. And I remember asking her, “Are they okay? Are they in Riverside County?” Or, you know, “Are they okay? What’s — what happened to them? Where are they? Did they have a car accident?” And then Michele said, “No.” And she told me what happened. (6 RT 830-831.) Clari also testified that she left Puerto Rico as soon as possible. At the Los Angeles Airport she met her Aunt Lupe whohad flownin from Florida. (6 RT 831.) They drove straight to Bruni’s house. U/d.) Asked to relate her observations when she walked through the door of her mother’s home, Clari testified: I saw bloodall over the floor and all over the carpet. And behind the front door there was blood that reached all the way upto the ceiling. And there was a basket full of clothes. A laundry basket of — clothes basket on the floor. 137 Q. Did you recognize anyofthe items of clothing in that laundry basket? A. WhenI was walking out. Because whenI first walked in, even though I saw everything, I didn’t see anything. I was in shock.” (6 RT 832.) 2. Richie Burgos. Richie Burgostestified on the first day oftrial, as the third witness in the prosecution’s case in chief. (6 RT 863.) He related the events of the evening ofNovember 9, 1998. (6 RT 864-865.) Reachingthe point in the narrative where he arrived hometo find the crime scene, Richie’s testimony conveyed someofthe sense of hysteria he felt in the moment: Q. What happened when you got home? > The door was open about that much (indicating). Aboutan inch?© A. Yeah, a little inch. My mom waslaying — laying there on the floor right by the stairs with her face blownoff. Q. Your mom waslaying there? A. With — with her face blown off. With her face blown off. And I run upstairs. I saw my brother laying there dead. I went in. My— my — my door wasn’t shut. The door was open. I called 9 - 1 - 1. 138 (6 RT 865.) At that point, the prosecutor played the tape ofthe call to 911. (People’s Exh. Nos. 92 [tape], 93 [transcription].) Richie became so upset upon hearing the tape that the court called a recess to allow the prosecutor to calm him downbefore resuming the testimony. (6 RT 865-867.) Several other witnesses described Richie’s emotional upset in considerable detail. Next-door neighbor Sarah Phipps heard Richie’s first “blood-curdling scream.” (8 RT 1064.) Sarah’s brother, Steve Phipps, testified that Richie could be heard screaming continuously for five minutes before he emerged from the house. (7 RT 914-915.) He and cab driver Curtis Wilhousen tried to calm Richie before the police arrived: He — Richie cameout to the car where we wereandsaid that his mom is dead, his brother is dead. And hejust kept saying, “Why? Why? Why?” *** Wesat there. I tried to — I just talked to him. And he kept — you know,there wasnotalking to him. He just kept crying. (7 RT 915-916.) Richie’s entire body was covered with blood. Even after police arrived and placed him in the back ofthe patrol car, Richie remained hysterical. (/d.) Officer Heim wasthe first person from law enforcementto arrive at the scene. (9 RT 1230-1231.) Hetestified about encountering a frantic Richie Burgos: “Uponarrival at the scene, I initially saw a subject that was 139 in the front yard. He was quite hysterical, screaming, crying.” (9 RT 1233.) Askedto continue relating his immediate impressions, Officer Heim stated: Well, initially, we were — myself and Deputy Alves were trying to calm downandbasically catch the person, Richard, who washysterical. We weretrying to basically control him just to find out what’s going on. Richard was coveredin blood and what appearedto befleshy matter that was about him and his face, and he was our main concern atthat point. (9 RT 1233-1234.) The prosecutor asked several more questionsto elicit additional testimony aboutthe extent of Richie Burgos’s hysteria: Q. Howdid you get Richard calmed down enoughto put him into the patrol car? A. Basically just telling him, “Calm down, calm down. You’re okay. You’re safe. We’re here to help.” He just kept screaming, “They’re dead,” and wejust kept telling him to calm down. “We’ll help out.” And we kept trying to reassure him that we hadto get him in the car. Initially he didn’t want to get in the car atall. He wasvery panicky. We did have to use someforce to get him into the car. But it wasn’t anything, you know,like a normalarrest or anything ofthat nature.It wasjust more to guide him in there. And once he was inside, we just asked him to calm down;stating that he wassafe. ae ok ok ok Q. Oncehe wasin the back of the patrol car, washestill screaming hysterically or — A. Yes. He wascrying through — any time that I saw him, he was crying. But after getting him into the patrol car 140 andtelling him that we would be right back — from there, I diverted my attention to the cab driver. (9 RT 1234-1235.) Later in his testimony, Officer Heim again mentioned that Richie was covered in “blood and human matter.” (9 RT 1235.) Lead Investigator Michele Amicone wasthe last witness to testify before the guilt phase closing arguments. She gave a poignant account of her interactions with Richie: He was upset. He wasin the back ofthe car crying, screaming. I kind of wanted to explain who I was and calm him downa little bit, if it was possible. So I took him out of the car and I told him who I was, and that I would be investigating the crime. ****** After I introduced myself and explained whoI was,hestarted crying little bit harder and he hugged me, so wehadthat contact. - (11 RT 1526-1527.) Amicone described how she had hugged Richie back, despite the fact that he was covered with “blood andtissue; possibly brain matter.” (11 RT 1527.) She explained her reasons for doing so. “He was obviously upset. It was obvious from his appearance that he had just been through something horrible. I mean, what do you do? You know,I wanted to calm him down and comfort him.” (11 RT 1527.) Over defense objection, Amiconetestified about some alleged inconsistencies between Richie Burgos’s trial testimony and his statements at the time of the crimes. In his initial interview, Richie said that when he discovered his mother’s 14] body and was huggingherhe said, “Mommy, wake up, Mommy, wake up.” (11 RT 1529.) C. Overview of Legal Claims. Evidence describing the impact of the crimes on the victims survivors (family, friends, and or membersofthe community)is prohibited in the guilt phase of a capital case. (See People v. Smith, supra, 35 Cal.4th 334; Payne v. Tennessee, supra, 501 U.S. 508; People v. Haskett, supra, 30 Cal.3d 841, 846.) Clari’s and Richie’s reactions uponlearning ofthe crimes were irrelevant to any issues pertaining to guilt. This evidence was, however, cumulative and highly prejudicial, and its admission deprived appellant of his constitutional rights to due process of law (Hicks v. Oklahoma, supra, 447 US. 343), to a fundamentally fair trial (Estelle v. McGuire, supra, 502 U.S.at p. 72), and a reliable determinationofthe penalty (Beck v. Alabama, supra, at p. 638). (U.S. Const. Amends. V, VI, VIII and XVI; Cal.Const., art I, sections 7, 15 and 17.) By allowing this testimony, the trial court abused its discretion under California law as the evidence had no relevance to disputed facts or material issues in the guilt phase. (Evid. Code §§ 210, 350; People v. Alcala, supra, 36 Cal.3d at pp. 631-632; People v. Cardenas, supra, 31 Cal.3d at pp. 904-905.) Any marginal relevance this evidence had was vastly outweighed by the 142 inflammatory effect it was certain to have on the jury. (Evid. Code §§352; 1101; People v. Ewoldt, supra, 7 Cal.4th at p. 404.) For the reasons discussed below, this Court must reverse appellant’s conviction offirst- degree murder, and overturn his sentence. D. Standard of Review. The California Supreme Court customarily reviewsa trial court’s evidentiary rulings for abuse of discretion. (See People v. Hoyos (2007) 41 Cal.4th 872, 908; People v. Salcido (2008) 44 Cal.4th 93, 147-148. See also People v. Burgener, supra, 41 Cal.3d 505; Evid. Code §§ 350, 352.) Appellant respectfully submits that heightened scrutiny is appropriate and necessary because these claims involveerrors infringing upon fundamental, constitutional rights, and because the claimsarise in the context of a capital case. (Gardnerv. Florida (1977) 430 U.S.349, 357-358) This Court should, therefore, independently examine the record to determine whether the trial court’s erroneous admission of this irrelevant and prejudicial evidence was harmless beyond a reasonable doubt. (Chapmanv. California, supra, at p. 24.) E. Evidenceof Clari’s and Richie’s Reactionsto the Crimes Had No Relevance to Any Issues in the Guilt Phase. Evidence is not admitted in a criminaltrial unless it is relevant to 143 material issues or disputed facts. Relevant evidence is defined in Evidence Code section 210 as evidence “having any tendency in reason to prove or disprove any disputedfact that is of consequence to the determination ofthe action.” Only relevant evidence is admissible under California law, and a trial court lacks discretion to admit irrelevant evidence. (Evid. Code § 350; People v. Heard (2003) 31 Cal.4th at pp. 972-973; People v. Crittenden (1994) 9 Cal.4th 83, 132; People v. Garceau, supra, 6 Cal.4th at pp. 176- 177.) The testimony detailing the responses of Clari and Richie in the immediate aftermath of the murders contributed nothing to the jury’s determinations of any material issues in the guilt phase of trial. Richie’s | testimony about discovering the crime scene wasrelevantin the guilt phase because it concerned the circumstances of the crime. However, the testimony of several other witnesses contained extensive descriptions of Richie’s hysteria and his gruesome appearance after handling the bodies, facts in no wayrelevantto the circumstances of the crime. To the extent that any other witnesses testimony in this area was marginally relevant,it was far more prejudicial than probative and should not have been admitted. Nopart of Clari’s testimony describing how she received the news was relevant in the guilt phase. (Compare People v. Mills (2010) 48 Cal.4th 144 158, 205 [videotape ofrelative receiving news of the murder was admissible victim impact in the penalty phase].) Clari was thousands of miles awayat the time, having gone to Puerto Rico more than three weeks earlier. The specific account ofhow she learned about the crimes and her reactions to the news had no bearing on any legitimate guilt phase issues. F. The Testimony was Unduly Prejudicial, Particularly in Conjunction with the Erroneous Admission of Other Prejudicial Evidence in the Guilt Phase. The testimony relating Clari’s and Richie’s reactions to a horrifying situation was certain to have engendered tremendous sympathy from the jurors, and an equal amount of enmity toward appellant. “[T]he presumption of prejudice from jury contact with inadmissible evidence is...strong[ ] in the context of a capital case.” (People v. Lucero, supra, 44 Cal.3d at p. 1023.) This type of victim impact evidenceis highly prejudicial under any circumstances. Where the jury is exposed to testimony of this sort in the guilt phaseoftrial the risk of improper prejudice is too great. The jury in a capitaltrial “should pass upon the case free from external causes tending to disturb the exercise of deliberate and unbiased judgment.” (/d.) G. Reversal is Required. The inclusion of this testimony addedto the other prejudicial 145 features ofthis trial created a courtroom environment which allowed “emotion [to] reign over reason,” and gaverise to a substantial likelihood “that irrational, purely subjective responses should carry the day.” (People v. Pinholster (1992) 1 Cal.4th 865, 959.) As a result, appellant was denied his constitutional rights to due process of law (Hicks v. Oklahoma, supra, at p. 346), to a fundamentally fair trial (Estelle v. McGuire, supra, at p. 72), and a reliable determination of the penalty (Beck v. Alabama, supra, at p. 638). (U.S. Const. Amends. V, VI, VIII and XVI; Cal.Const., art I, sections 7, 15 and 17.) Reversal is required. VI. THE TRIAL COURT ABUSEDITS DISCRETION UNDER CALIFORNIA LAW AND DEPRIVED APPELLANT OF HIS STATE AND FEDERAL CONSTITUTIONAL RIGHTS BY ADMITTING INTO EVIDENCE AN EXCESSIVE NUMBER OF GRUESOME AND HIGHLY PREJUDICIAL PHOTOGRAPHS. A. Introduction. Over defense objections, the trial court admitted nine photographs of the victims taken at the crime scene and during the autopsies. These photos displayed the most disturbing images of what was,by all accounts, an exceptionally bloody and gruesome crime. Two of the most senior law enforcement officials each described it as the worst they had ever seen 146 areas ofstippling and gun powderresidue. (See 2 RT 319; People’s Exh. No.85.) Thetrial court overruled the objections, and admittedall five of the David Burgos autopsy photographsthe prosecutor offered. (2 RT 321.) The photographs from Bruni’s autopsy received similar treatment. Defense counsel objected to four from total of nine proffered exhibits. The contested photos were, as the trial judge stated, especially “gory” and disturbing because the massive facial woundswere visible. (See 2 RT 329- 331; People’s Exh. Nos. 69, 70, 71 and 73.) Thetrial court admitted all of these photographs in despite the fact that defense counsel had agreed to a numberof other autopsy pictures. (See 2 RT 327-330.) With respect to the crime scene photographs, defense counsel objected to only a few on the grounds that they were cumulative and unduly prejudicial. Here counsel pointed out that the prosecutor was seeking to admit twoor three photographs showing similar views of Bruni in the entryway and the blood and matter spreading into the living room ofthe house. (See 2 RT 323-325; People’s Exh. Nos. 33, 34, and 35.) Three photos of David Burgos showed the samerelevant information. (See 2 RT 325-327; People’s Exh. Nos. 39, 40, and 41.) Defense counsel objected toall of the items noted above, arguing that the photos were gory and disturbing, cumulative, and unduly prejudicial 149 under Evidence Code section 352. (2 RT 320-321.) ** Additionally, counsel pointed outthat the inflammatory effects would be amplified when the images were viewed onthe Riverside court system’s “tremendous” graphic display system. Aided bythis technology, jurors would be seeing every detail of the horrific images on a large screen monitor. (See 2 RT 330-332.) Although the judge commented on the bloody and gruesome nature ofthe photos, the court overruled the defense objections and admitted all of the photos offered by the prosecution. (See 2 RT 322, 330- 331.) The photos were displayed and referenced often during the prosecutor’s direct examination of forensic pathologist Darryl Garber, M.D. (See 10 RT 1452-1476.) Dr. Garber wentinto considerable detail in his testimony about Bruni’s fatal head and face wound.(See 10 RT 1465- 1476.) Usingthe photos, the doctor pointed out the various aspects of the | “massive destruction” resulting to Bruni’s face and brain. (See 10 RT 1472-1475; People’s Exh. Nos. 69-77.) 48 The court and counsel expressly stipulated that all defense objections would be deemed to have been madeonstate and federal constitutional groundsas well in order to preserve all isues for appeal. (7 RT 897.) 150 C. Overview of Legal Claims. Thetrial court’s admission ofthis irrelevant and highly prejudicial evidence was improper underCalifornia law. (Evid. Code §§ 210, 350, 352; People v. Partida (2005) 37 Cal.4th 428, at 431-439; People v. Turner (1984) 37 Cal.3d.302, 320-321.) The erroneous admission ofthis evidence denied appellant his state and federal constitutional rights to due process of law, to a fundamentally fair trial, and to reliable adjudications at both phasesofhis capital trial. (U.S. Const. Amends.V, VIII, and XIV; Cal. Const., art. I, §§ 7, 15, and 17; Beck v. Alabama, supra,at p. 638; Zantv. Stephens (1983) 462 U.S. 862, 879; Woodson v. North Carolina, supra, 428 U.S. 280, 304; Johnson v. Mississippi, supra, 486 U.S.at pp. 584-585.) Becausethe trial court’s ruling contravenedestablished state law,its actions also deprived appellant ofa state-created liberty interest and denied him due process of law underthe Fifth and Fourteenth Amendmentsto the federal constitution. (Hicks v. Oklahoma, supra, at p. 346; Lambright v. Stewart, supra, 167 F.3d 477.) D. Standard of Review. The California Supreme Court typically reviews a trial court’s evidentiary rulings for abuse of discretion. (See People v. Hoyos, supra, 41 Cal.4th 872, 908; People v. Salcido, supra, 44 Cal.4th 93, 147-148.) 151 Appellant contends that heightened scrutiny is appropriate and necessary because these claims involve constitutional error in the context of a capital case. (Gardner v. Florida, supra, 430 U.S. 349, 357-58. Therefore, this Court should independently examine the record to determine whether the trial court’s erroneous admission ofthis prejudicial evidence was harmless beyond a reasonable doubt. (Chapmanv. California, supra, at p. 24.) E. These Nine Photographs Were Largely Irrelevant, and Any Marginal Relevance WasVastly Outweighed by the Accompanying Prejudice. A determination on appeal of whetheror notthe trial court abusedits discretion focuses on two factors: (1) whether the photographs were relevant; and (2) whetherthe trial court abusedits discretion in finding that the probative value of this evidence outweighedits prejudicial effect. (People v. Hoyos, supra, 41 Cal.Ath at p. 908; People v. Salcido, supra, 44 Cal.4th at pp. 147-148.) Thetrial court has broad discretionin the first instance to decide whether photographs of the deceased should be admitted and whetherthe probative value of such evidence outweighs any prejudicial impact under Evidence Code section 352. (People v. Carpenter, supra, 15 Cal.4th at p. 385; People v. Scheid (1997) 16 Cal.4th 1; People v. Staten (2000) 24 Cal.4th 434, 462-464; People v. Vieira (2005) 35 Cal.4th 264, 291-292.) Nonetheless, this Court, as well as the Court of Appeal, has 152 found in a numberofpreviouscases that the trial court abused its discretion in allowing such evidence to be presented to the jury. Photographsofthe crime scene and/or the autopsy are not admissible absent a probative connection to disputed issues. (Sce, e.g., Peoplev. Turner, supra, 37 Cal.3d at p. 321; People v. Ramos (1982) 30 Cal.3d 553, 578.) Where the defense doesnot dispute the point to which the picture supposedly pertains, the exhibit has no relevance should notbe admitted. (People v. Hendricks (1987) 43 Cal.3d 584, 594.) In-appellant’s case the trial court admitted without question any photos which might be used in connection with the testimonyofthe forensic pathologist. (See 2 RT 330- 332.) This was not an adequatebasis for the court’s rulings. In People v. Poggi (1988) 45 Cal.3d 306, this Court held thatthetrial judge had improperly admitted two photographs ofthe murder victim, one depicting the victim whilestill alive and a second autopsy photograph showingincisionsthat the surgeons made performing a tracheotomy,rather than revealing the stab woundsinflicted during the offense, after defense counselofferedto stipulate that the victim was a humanbeing,that she was alive before the attack, and that she diedas a result of the attack. The California Supreme Court stated: The admission of the photographs waserror.It is true, as the 153 People argue, that the admissibility of photographslies primarily in the discretion ofthe trial court. Butit is also true that the court has no discretion to admit irrelevant evidence. The photographshere are notrelevant to any disputed material issue. The only matters on which they have probative value are the following: [the victim] was a humanbeing;she wasalive before the attack, and she is now dead. In view of defense counsel’s offer to stipulate, these issues were removed from the case as matters in dispute. When,as here, a defendant offers to admit the existence of an elementof a charged offense, the prosecutor must acceptthat offer and refrain from introducing evidence to prove that elementto the jury. (People v. Poggi, supra, 45 Cal.3d at pp. 322-323.) In People v. Gibson (1976) 56 Cal.App.3d 119, the Court of Appeal similarly condemnedthe admission of certain gruesome photographsofthe deceased. In that case the prosecutor argued that the photographs wererelevantto illustrate the anticipated testimonyofthe coroner, andthetrial court admitted the photographs for that purpose. The Court of Appeal reversed the subsequent conviction, stating: The two photographs, to which objection was made,are gruesome,revolting and shocking to ordinary sensibilities. In light of the many other photographsofthe deceased victim used in connection with the testimony of Deputy Coroner Phillips, [these photographs] represented cumulative evidence ofslight relevancy. Their probative value was substantially outweighed by the danger of undueprejudice to defendant. (People v Gibson, supra, 56 Cal.App.3d at pp. 134-135.) 154 The admission of the photographsat issue in appellant’s case was error for the same reasons. As in the Poggi and Gibson cases, there was no question that the two victims diedas a result of multiple shotgun wounds. The prosecutor stated that the head wound Bruni sustained wassufficient by itself to have killed her. (See 2 RT 330.) Admitting the photographs with the most graphic and disturbing depictionsofthe victims woundedbodies with the splattered blood andbrain tissue waserror according to the reasoning ofthe California Supreme Court in People v. Poggi, and that of the reviewing court in People v. Gibson. The nine photos which were the subjects of defense objections were merely cumulative to the testimony of the prosecution’s experts (a forensic pathologist, several criminalists, and various investigators) and had no additional probative value. Multiple prosecution witnesses presented clear and unchallenged evidence illustrated, inter alia, by the 19 photographs defense counsel did not object to, as well as via charts and other evidence. There was no need to amplify or corroborate this substantial body of evidence with the most graphic and gory photographsat hand. Anyprobative value that these photographs might have had was substantially outweighed by their undoubted prejudicial impact on the jury. These exhibits were of the type “most likely to inflame the passions ofthe 155 jurors and cause them to vote guilty regardless of the evidence.” (People v. Scheid, supra, 16 Cal.4th at p. 19; People v. Turner, supra, 37 Cal.3d at pp. 320- 321.) Under these circumstances,the trial court’s admission ofthis evidence was an abuseofits discretion under Evidence Code section 352, and violated appellant’s constitutionalrights. F. These Photographs Were Unduly Prejudicial. Appellant recognizes that California law permits the introduction of unpleasant photographs under certain circumstances. (See, ¢.g., People v. Ramirez (2006) 39 Cal.4th 398, 453-454; People v. Carter, supra, 36 Cal.4th 1114, 1166; People v. Moon, supra, 37 Cal.4th 1, 32.) However, | the California Supreme Court has long recognized the uniqueability ofthe visual image to “evoke an emotionalbias against the defendant as an individual.” (People v. Karis (1988) 46 Cal. 3d 612, 638.) While trial courts generally have considerable discretion to admit evidence, they also have a duty to shield the jurors from photographs which may “sensationalize an alleged crime, or are unnecessarily gruesome.” (People v. Ramirez, supra, 39 Cal.4th at p. 453.) Gruesome photographs are among the types of evidence “most likely to inflame the passionsofthe jurors and cause them to vote guilty regardless of the evidence.” (People v. Scheid, supra, 16 Cal.4th at p.19; People v. Turner, supra, 37 Cal.3d at pp. 320- 156 321.) Explicit photos of any homicide victim are certain to be disturbing on somelevel. These photographs, however, were notably horrific. Several of the investigators (each with more than 20 years of experience) commented that this case was the most bloody and gruesomecrime scene they had ever seen. Dr. Garber, the forensic pathologist explained that the shotgun blast “triggered a massive explosion” which “destroyed mostofher head.” (10 RT 1465.) One of the photos showed whatwasessentially a headless woman covered with blood brain matter and fleshy tissue. All that remained to be seen of her face was part of the chin and lower jaw. (10 RT 1472.) These macabre images served no purpose, especially as defense counsel challenged noneofthe evidence regarding the causes and manner of the victims deaths. (See 10 RT 1476.) Under these circumstances, the trial court’s admission of this evidence was an abuseofits discretion under Evidence Codesection 352, and violated appellant’s constitutional rights to due process of law andto fairtrial. (Lisenbav. California (1941) 314 USS. 219, 228; People v. Partida, supra, 37 Cal.4th at pp. 434-435.) In the context of a capital case where the mentalstate of the perpetrator was challenged by the defense, the erroneous admission of evidence may deprive the defendantof a reliable adjudication of both the guilt and penalty 157 phases. *? (Ford v. Wainwright (1986) 477 U.S. 399, 411; Beck v. Alabama, supra, at p. 638.) In appellant’s case,it is at least reasonably probablethat, without this evidence, the jury would have reached a different conclusion about the degree of murderand different findings with regard to the special circumstances. (People v. Watson, supra, 46 Cal.2d at p. 836.) Appellant’s convictions and sentence of death must, therefore, be reversed. VIL THE TRIAL COURT ERRONEOUSLY INSTRUCTED THE JURY PURSUANT TO CALJIC 2.51. Thetrial court instructed the jury under CALJIC No.2.51, as follows: Motive is not an elementofthe crime charged and need not be shown. However, you may consider motive or lack of motive as a circumstancein this case. Presence of motive may tend to establish the defendantis guilty. Absence of motive may tend to show the defendantis not guilty. (13 CT 3556; 11 RT 1559.) This instruction improperly allowed the jury to determineguilt based upon the presence ofan alleged motive, and shifted the burden of proof to appellant to show an absence of motiveto establish innocence thereby lessening the prosecution’s burden ofproof. The instruction violated appellant’s state and federal constitutional rights to a fundamentally fair jury trial, to due process oflaw,andto a reliable verdict 4 See ArgumentsI andII. 158 and penalty determination. (U.S. Const., Amends.V, VI, VII and XIV; Cal. Const., art. I, §§ 7 and 15.) Appellant recognizes that the California Supreme Court has upheld CALJIC 2.51, rejecting similar claims in other cases. (See People v. Moore (2011) __Cal.Rptr.3d___ [2011 WL 322379]; People v. Lee_ CalRptr.3d___ [2011 WL 651850].) Forall ofthe reasons discussed below, appellant respectfully asks the Court to reconsider. A. This Instruction Allowed the Jury to Determine Guilt Based on Motive Alone. CALJIC No.2.51 states that the presence of motive may tend to establish that a defendantis guilty. The premise of this instruction is a misleading and incomplete statementofthe law. It is axiomatic that due process requires substantial evidence of guilt, and the prosecution must prove each elementofthe offense beyond a reasonable doubtin order to hold the defendantcriminally liable. (Jackson v. Virginia, supra, 443 U.S.at p. 320 [a “mere modicum”of evidenceis not sufficient].) A conviction based solely on evidence of motive (no matter how compelling the motive may appear on an intuitive level) cannotsatisfy this standard because the evidence would be speculative and conjectural. (See e.g., United Statesv. Mitchell (9th Cir. 1999) 172 F.3d 1104, 1108-1109 [motive based on poverty is insufficient to provetheft or robbery].) Plainly stated, motive aloneis insufficient to prove 159 guilt. CALJIC 2.51 allowsthe jury to determine guilt based on motive alone. Indeed, it may encourage them to do so because ofthe marked difference between it and other instructions. Other standard evidentiary instructions addressinga single circumstancespecifically state that the circumstanceis insufficientto establish guilt. (See, e.g., CALJIC 2.52 [flight] 13 CT 3556; 11 RT 1560.) The contrast wasreadily apparent here because the trial court gave CALJIC 2.52 immediately after CALJIC 2.51. Ud.) The jurors could have reasonably concludedthat if motive wereinsufficient by itself to establish guilt, the instruction obviously wouldsay so. (See People v. Castillo (1997) 16 Cal.4th 1009, 1020 (conc. opn. of Brown,J.) [deductive reasoning underlying the Latin phrase inclusio unius est exclusio alterius could mislead a reasonable juror as to the scope ofaninstruction].) B. The Instruction Was Especially Prejudicial in this Case Becauseit Improperly Supported the Prosecution’s Theory for First Degree Murder. It was highly likely that the jury in appellant’s case would adoptthis improper permissive inference. Motive wasthe key to the prosecution obtaining a conviction for first degree murder and a “True”finding on the “lying-in-wait” special circumstance. This wasnota case in which the facts of the offense alone weresufficient to support such a verdict. (See, e.g., People y. Jennings (2010) 50 Cal.4th 616 [systematic starvation of a child]; People v. 160 Catlin, supra, 26 Cal.4th at p. 158 [use of poison].) The parties werelargely in agreementon the basic outline of the case. The state’s evidence established: ~ 1) appellant habitually became violent and abusive when angry at his wife or his daughter; 2) the wife and daughterleft and were unavailable; 3) appellant then acted out by shooting his wife’s mother and younger brother. Assuming that these facts were accepted as proven, the remaining issue was appellant’s mental state. The jury was instructed on the general definitions of murder and malice aforethought (CALJIC Nos. 8.00; 8.10; 8.1 1). (143 CT 3559; 11 RT 1563-1564.) They werealsoinstructed on first degree murder (CALJIC Nos. 8.20; 8.25), and second degree murder (CALJIC Nos. 8.30; 8.70; 8.71). (See 13 CT 3559-3561; 11 RT 1563-1566.) The prosecution’s case for first degree murder wasentirely circumstantial. Success (in the form of a conviction and/or lying-in-wait special circumstance finding) depended uponthe jurors makinga tricky series of inferential leaps. Jurors needed to use different past crimes (domestic violence), requiring a different and less culpable mental state (general intent), and involving other victims, to infer that appellant carried out these crimes with the specific intent required for first degree capital murder. Something was needed to persuade the jury to connectthe instant case to the past crimes. *° The prosecution contrived a concept of “motive” to paper over 50 See Arguments I andIL. 161 the logical gapsin this series of inferences. According to the prosecution, the past crimes and the homicides sprang from the same motive. All of appellant’s conduct, past and present, waspart of an overarching plan to dominate and controlthis family. (See, 11 RT 1578- 1580 [prosecutor’s guilt phase closing argument].) This “motive” theory connectedthe twosets of circumstances, and established the specific intent neededforthe first degree murder finding. Instructing the jurors that they could infer guilt from motive encouraged them adoptthe prosecution’s theory about motive, which in turn led to a finding ofpremeditation and deliberation in the shootings. As discussed in ArgumentI, above,this theory stretched the concept of motive too far, and thetrial court should not have admitted the past misconduct evidence to support it. A concurrent problem wasthe lack of consistency in the instructions as a whole. This Court has recognizedthat differing standards in jury instructions create erroneous implications. (See People v. Dewberry (1959) 51 Cal.2d 548, 557 [the trial court’s failure to instruct on the effect of a reasonable doubt as between anyofthe included offenses, when it had instructed as to the effect of such doubt as between the two highest offenses, and as between the lowest offense and justifiable homicide, left the instructions with the clearly erroneous implication that the rule requiring a 162 finding of guilt of the lesser offense applied only as between first and second degree murder]; see also People v. Salas (1976) 58 Cal.App.3d 460, 474 [when a generally applicable instruction is specifically made applicable to one aspectofthe charge andnot repeated with respect to anotheraspect, the inconsistency may be prejudicial error].) In appellant’s case the juxtaposition of CALJIC Nos. 2.51 and 2.52 highlighted the fact that proof beyond a reasonable doubt was vot requiredto infer guilt from motive. Accordingly, the instruction violated appellant's constitutional rights to due process of law, a fair trial, and a reliable determination of guilt and of the penalty. (U.S. Const., Amends. V, VI, VIII and XIV; Cal. Const., art. I, §§ 7 and 15.) C. The Instruction Impermissibly Lessened the Prosecution’s Burden of Proof and Violated Due Process. Appellant’s jury was instructed according to CALJIC 8.20, stating that first degree murderis a “willful, deliberate and premeditated killing with malice aforethought.” (13 CT 3559; 11 RT 1564-1565.) The prosecution’s theory held that appellant was motivated by his long-standing plan to dominate his family. By informing the jurors that “motive was not an element of the crime,” however,the trial court reduced the burden ofproof onthis crucial, contested element of the prosecutor’s capital murdercase - i.e., that appellant had premeditated anddeliberatedthe killings rather than simply 163 explodingin a violent rage. The instruction thus violated due process by improperly undermining a correct understanding ofhow the burden ofproof beyond a reasonable doubt was supposed to apply. (See Sandstrom v. Montana (1979) 442 U.S. 510; People v. Lee (1987) 43 Cal.3d 666, 673-674 [conflicting instructions on intent violate due process]; Baldwin v. Blackburn (5th Cir. 1981) 653 F.2d 942, 949 [misleading and confusing instructions under state law may violate due process where they are “likely to cause an imprecise, arbitrary or insupportable finding of guilt”].) CALJIC No.2.51 impermissibly lessened the state’s burden ofproof because appellant’s jury would not have been able to separate instructions defining “motive” from “intent.” The distinction between “motive” and “intent” can be difficult, even for lawyers and judges. Judicial opinions have sometimes used the two terms as synonyms. (See, e.g., People v. Vasquez (1972) 29 Cal.App.3d 81, 87; People v. Beaumaster (1971) 17 Cal_App.3d 996, 1007-1008.) The terms “motive” and “intent” are commonly used interchangeably underthe rubric of “purpose.” In People v. Maurer (1995) 32 Cal.App.4th 1121, the defendant was charged with child annoyance, which required that the forbidden acts be “motivated by an unnaturalor abnormal sexualinterest or intent.” (People v. Maurer, supra, at pp. 1126-1127.) The Court of Appeal emphasized, “We mustbear in mindthat the audience for 164 these instructions is not a room of law professors deciphering legal abstractions, but a room oflay jurors reading conflicting terms.”(/d atp. 1127.) The court found that giving the CALJIC No.2.51 motive instruction- stating that motive was not an element ofthe crime charged and neednot be proved - was reversible error. (/d at pp. 1127-1128.) D. The Instruction Shifted the Burden of Proof to Imply That Appellant Had to Prove Innocence. CALJIC 2.51 informed the jurors that the presence ofmotive could be used to establish guilt and that the absence of motive could be usedto establish innocence. Theinstruction effectively placed the burden ofproof on appellant to show an alternative motive to that advanced by the prosecutor. As usedin this case, CALJIC No. 2.51 deprived appellant ofhis federal constitutional rights to due process and fundamentalfairness. (/n re Winship, supra, 397 U.S.at p. 368 [due process requires proof beyond a reasonable doubt].) Appellant was also denied the benefit of the Eighth Amendment’s requirementofparticularreliability in capital sentencing, because the erroneousinstruction allowed the prosecution to convict appellant on less than the full measure of proof. (See Beck v. Alabama, supra,at pp. 637-638 [reliability concerns extend to guilt phase].) 165 E. Reversalis Required. The motive instruction given in this case diluted the state’s obligation to prove beyonda reasonable doubtthat appellant had the specific intent neededforfirst degree, deliberate and premeditated murder. CALJIC No.2.51 encouraged the jury to conclude that motive could be substituted for proof of specific intent to kill. Such a conclusion wasclearly erroneous, as specific intent to kill must be proven beyond a reasonable doubtin order to sustain guilty verdicts on the first degree murder charges and “True” findings on the lying-in-wait special circumstanceallegations. Accordingly, this Court mustreverse appellant’s convictions on Counts One and Two,and the jury’s “True” findings on the special circumstance allegations, because the instructional error - affecting the central issue before the jury - was not harmless beyond a reasonable doubt. (Chapman v. California, supra, at p. 24.) VII. THE TRIAL COURT ERRED IN INSTRUCTING THE JURY ON CONSCIOUSNESSOF GUILT. Thetrial court instructed the jury with CALJIC No.2.52, pertaining to flight after the commission of a crime: The flight of a person immediately after the commission of a crimeis not sufficient in itself to establish his guilt but is a fact 166 which, if proved, may be considered by youin light of all other provedfacts in deciding whether a defendantis guilty or not guilty. The weight to which this circumstanceis entitled is a matter for you to decide. (13 CT 3556; 11 RT 1560.) This instruction should not have been given because it allowed the jury to draw an inference against appellant which lacked sufficient support in the evidence. Especially when considered in conjunction with the othererrors in the guilt phaseoftrial, this error deprived appellant of his rights to due process, a fairtrial, a jury trial, equal protection and reliable jury determinations on guilt, the special circumstances and penalty. (U.S. Const. Amends. V, VI, VIII and XIV; Cal.Const., art I, §§ 7, 15, 16 and 17.) Appellant recognizes that the California Supreme Court has rejecting similar claims in other recent cases. (See People v. Lynch (2010) 50 Cal.4th 693, 761; People v. Taylor (2010) 48 Cal.4th 574, 630.) Appellant respectfully asks the Court to reconsider, and to reverse his convictions and the judgment of death. A. CALJIC 2.52 Improperly Duplicated the Circumstantial Evidence Instructions. It was unnecessary forthe trial court to instruct appellant’s jury with CALJIC No. 2.52. The California Supreme Court has repeatedly disapproved of specific instructions relating to the consideration of evidence which simply 167 reiterate a general principle upon whichthe jury already has beeninstructed. (See People v. Lewis (2001) 26 Cal.4th 334, 362-363; People v. Ochoa (2001) 26 Cal.4th 398, 454-455; People v. Berryman (1993) 6 Cal.4th 1048, 1079- 1080, overruled on another ground, People v. Hill (1998) 17 Cal.4th 800.) In this case, the trial court gave the jury the standard CALJIC Nos. 2.00 and 2.01 circumstantial evidence instructions. (13 CT 3551; 11 RT 1552-1553.) These instructionstold the jurors that they might draw inferences from the circumstantial evidence. In other words, they could infer facts tending to show appellant’s guilt from the circumstances of the crimes. There was no need to repeat this general principle underthe guise ofpermissive inferences of consciousness of guilt. This unnecessary benefit to the prosecution violated both the due process and equal protection clauses of the Fourteenth Amendment. (See Wardius v. Oregon (1973) 412 U.S. 470, 479[state rule requiring defendantto reveal his alibi defense, without providing discovery of prosecution’s rebuttal witnesses, violates due process by giving an unfair advantageto the prosecution]; Lindsay v. Normet (1972) 405 U.S. 56, 77 [an arbitrary preference to particular litigants violates equal protection].) B. The Instruction Was Partisan and Argumentative. The consciousness-of-guilt instruction was not only unnecessary,it was also impermissibly argumentative. The trial court must refuse to deliver 168 argumentative instructions. (People v. Sanders (1995) 11 Cal.4th 475, 560.) The vice ofthese instructions is that they present the jury with a partisan argument disguised as a neutral, authoritative statement of the law. (See People v. Wright (1988) 45 Cal.3d 1126, 1135-1137.) Such instructions unfairly highlight “isolated facts favorable to one party, thereby, in effect, intimating to the jury that special consideration should be given to those facts.” (Estate ofMartin (1915) 170 Cal. 657, 672.) Argumentative instructions are defined as those that “invite the jury to draw inferences favorable to one of the parties from specified items of evidence.” (People v. Mincey (1992) 2 Cal.4th 408, 437 [citations omitted].) Evenifthey are neutrally phrased, argumentative instructions are improper because they “ask the jury to consider the impact of specific evidence,” (People v. Daniels, supra, 52 Cal.3d at pp. 870-871) or “imply a conclusion to be drawn from the evidence.” (People v. Nieto Benitez (1992) 4 Cal.4th 91, 105, fn. 9.) Judged by this standard, CALJIC No 2.52 was impermissibly argumentative. The structure of CALJIC No 2.52 is very similar to the instruction the California Supreme Court disapproved in People v. Mincey, supra, 2 Cal.4th 408. The proposed defense instruction in People v. Mincey provided: Ifyou find that the beatings were a misguided, irrational and totally unjustified attempt at discipline rather than torture as 169 defined above, you may conclude that they were not ina criminal sense wilful, deliberate, or premeditated. (Ud at p. 437, fn. 5.) The use of CALJIC 2.52 heretold the jury, “[i]f you find” certain facts (flight in this case and a misguided and unjustified attempt at discipline in Mincey), then “you may” considerthat evidencefora specific purpose (showing consciousnessofguilt in this case and concluding that the murder was not premeditated in Mincey). The California Supreme Court found the instruction in Mincey to be argumentative. (/d at p. 437.) Appellant submits. that this Court should hold CALJIC No. 2.52 to be impermissibly argumentative as well. In People v. Nakahara (2003) 30 Cal.4th 705, 713, the California Supreme Court rejected a challenge to consciousness-of-guilt instructions based on analogy to People v. Mincey, supra, 2 Cal.Ath, 408. In People v. Nakahara, the Court reasoned that Mincey was “inappositefor it involved no consciousnessof guilt instruction” but, rather, a proposed defense instruction which “would have invited the jury to infer the existence of [the defendant’ s] version of the facts, rather than his theory of defense.” (People v. Nakahara, supra, 30 Cal.4th at p. 713.) However, this holding does not explain why two instructions that are identical in structure should be analyzed differently or 170 whyinstructions that highlight the prosecution’s version of the facts are permissible while those that highlight the defendant’s version are not. “There should be absolute impartiality as between the People and defendant in the matter of instructions .. .” (People v. Moore (1954) 43 Cal.2d 517, 526-527, quoting People v. Hatchett (1944) 63 Cal.App.2d 144, 158; accord, Reagan v. United States (1895) 157 U.S. 301, 310.) An instructional analysis that distinguishes between parties to the defendant’s detriment deprives the defendant of his constitutionalrights to a fair trial and to due process of law. (Green v. Bock Laundry Machine Co. (1989) 490 U.S. 504, 510; Wardius v. Oregon, supra, 412 U.S. at p. 474.) The arbitrary distinction betweenlitigants also deprives the defendant of equal protection of the law. (Lindsay v. Normet, supra, 405 U.S.at p. 77.) In appellant’s case, the use of this prosecution-slanted instruction given in this case also violated due process by lessening the prosécution’s burden of proof. Un re Winship, supra, 397 U.S.at p. 364.) To insure fairness and equal treatment, appellant respectfully submits that this Court should reconsider the cases in whichit has held that California’s consciousness-of-guilt instructions were not argumentative. (See, e.g., People v. Lynch, supra, 50 Cal.4th at p. 761; People v. Taylor, supra, 48 Cal.4th at p. 630.) Except for the party benefitted by the instructions, there 1s 171 no discernable difference between the instructions this Court has upheld(see, e.g., People v. Nakahara, supra, 30 Cal.4th 705, 713; People v. Bacigalupo (1991) 1 Cal.4th 103,123 [CALJIC No. 2.03 “properly advised the jury of inferences that could rationally be drawn from the evidence”]), and a defense instruction held to be argumentative because it “improperly implies certain conclusions from specified evidence.” (People v. Wright, supra, 45 Cal.3d at p. 1137.) The alternate rationale the Court employed in People v. Kelly (1992) 1 Cal.4th. 495, 531-532 (and a numberof subsequentcases, e.g., People v. Arias (1996) 13 Cal.4th 92, 142), is equally flawed. In Kelly, the Court focused on the allegedly protective nature of the instructions, noting that they tell the jury that the consciousness-of-guiltevidence is not sufficient byitself to prove guilt. From this fact, the Kelly court concluded: “If the court tells the jury that certain evidence is not alone sufficientto convict, it must necessarily inform the jury, either expressly or impliedly, that it may at least consider the evidence.” (People v. Kelly, supra, 1 Cal.4th at p. 532.) Morerecently, this Court abandonedthe Kelly rationale, holding that the error in not giving a consciousness-of-guilt instruction was harmless because the instruction “would have benefitted the prosecution, not the defense.” (People v. Seaton (2001) 26 Cal.4th, 598, 673.) Moreover, the 172 allegedly protective aspect of the instructions is weak at best and often entirely illusory. The instructions do not specify what else is required before the jury can find that guilt has been established beyond a reasonable doubt. They thus permit the jury to seize upon oneisolated piece of evidence, perhaps nothing more than evidence establishing the only undisputed element of the crime, and use that in combination with the consciousness-of-guilt evidence to concludethat the defendant is guilty. Finding that a flight instruction unduly emphasizes a single piece of circumstantial evidence, the Supreme Court of Wyominghasheld that giving such an instruction always will be reversible error. (Haddan v. State (Wyo. 2002) 42 P.3d 495, 508.) In so doing,it joined a numberofother state courts that have found similar flawsin the flight instruction. °' The reasoning of two 51 Courts in at least eight other states have held that flight instructions should not be given because theyunfairly highlight isolated evidence. (Dill v. State (Ind. 2001) 741 N.E.2d 1230, 1232-1233; State v. Hatten (Mont. 1999) 991 P.2d 939, 949-950 [297 Mont. 127]; Fenelon v. State (Fla. 1992) 594 So.2d 292, 293-295 [17 Fla. Weekly S101]; Renner v. State (Ga. 1990) 397 S.E.2d 683, 686 [260 Ga. 515]; State v. Grant (S.C. 1980) 272 S.E.2d 169, 171 [275 S.C. 404]; State v. Wrenn (Idaho 1978) 584 P.2d 1231, 1233-1234 [99 Idaho 506]; State v. Cathey (Kan. 1987) 741 P.2d 738, 748-749 [24 Kan. 715]; State v. Reed (Wash.App.1979) 604 P.2d 1330, 1333 [25 Wash.App.46]; see also State v. Bone (Iowa 1988) 429 N.W.2d 123, 125 [flight instructions should rarely be given]; Peoplev. Larson (Colo. 1978) 572 P.2d 815, 817-818 [194 Colo. 338] [same].) Other state courts also have held that flight instructions should not be given, but their reasoning waseither unclear or not clearly relevant to the instant (continued...) 173 of these casesis particularly instructive. In Dill v. State, supra, 741 N.E. 2d 1230, the Indiana Supreme Court relied onthat state’s established ban on argumentative instructions to disapprove flight instructions: | Flight and related conduct may be considered by jury in determining a defendant’s guilt. [Citation.] However, although evidence offlight may, under appropriate circumstances, be relevant, admissible, and a proper subject for counsel’s closing argument, it does not follow that a trial court should give a discrete instruction highlighting such evidence. To the contrary, instructions that unnecessarily emphasize oneparticular evidentiary fact, witness, or phase of the case have long been disapproved. [Citations.] We find no reasonable groundsin this case to justify focusing the jury’s attention on the evidence of flight. (Id at p. 1232,fn. omitted.) In State v. Cathey, supra, 741 P.2d 738, the Kansas Supreme Court cited a prior case which had disapproveda flight instruction, and extendedits reasoning to coverall similar consciousness-of- guilt instructions: It is clearly erroneous for a judge to instruct the jury on a defendant’s consciousnessof guilt by flight, concealment, fabrication of evidence, or the giving of false information. Such an instruction singles out and particularly emphasizes the weight to be given to that evidence by the jury. (Id at pp. 748-749 [citation omitted]. Accord, State v. Nelson (Mont. 2002) *1(...continued) discussion. (See, e.g., State v. Stilling (Or. 1979) 590 P.2d 1223, 1230 [285 Or. 293].) 174 48 P.3d 739, 745 [reasons for the disapprovalofflight instructions also applied to an instruction on the defendant’s false statements].) In appellant’s case the argumentative consciousness-of-guilt instructions invadedthe provinceofthe jury, focusing the jurors’ attention on evidence favorable to the prosecution. Additionally, these instructions placed the trial court’s imprimatur on the state’s theory of the case and lightened the prosecution’s burden of proof. The use ofthese improper instructions violated appellant’s rights to due processoflaw,to a fair trial, and to equal protection of the laws. (U.S. Const. Amends. V, VI, VII and XIV;Cal. Const., art I, §§ 7,15, 16.) Cc. The Consciousness-Of-Guilt Instruction Allowed An Irrational Permissive Inference About Appellant’s Guilt. All the consciousness-of-guilt instructions suffer from an additional constitutional defect — they embody improper permissive inferences. Each instruction permits the jury to infer one fact, such as appellant’s consciousness of guilt, from other facts, i.e., flight (CALJIC No. 2.52). (See People v. Ashmus (1991) 54 Cal.3d, 932, 977.) A permissive inference instruction can intrude improperly upon a jury’s exclusive role as fact finder. (See United States v. Warren (9" Cir. 1994) 25 F.3d 890, 899.) By focusing on a few isolated facts, such an instruction also may cause jurors to overlook 175 exculpatory evidence and lead them to convict without considering all relevant evidence. (United States v. Rubio-Villareal (9" Cir. 1992) 967 F.2d 294, 299-300 (en banc).) A passing reference to considerall evidence will not cure this defect. (United States v. Warren, supra, 25 F.3d at p. 899.) These and other considerations have prompted the Ninth Circuit to “question the effectiveness ofpermissive inference instructions.” (Ud. See also United States v. Warren, at p. 900 (conc. opn. of Rymer,J.) [“I must say that inference instructions in general are a bad idea. There is normally no need for the court to pick out one of several inferences that may be drawn from circumstantial evidence in order for that possible inference to be considered by the jury’”’].) | For a permissive inference to be constitutional, there must be a rational connection between the facts found by the jury from the evidence and the facts inferred by the jury pursuantto the instruction. (Ulster County Courtv. Allen (1979) 442 U.S. 140, 157; United States v. Gainey (1965) 380 U.S. 63, 66-67; United States v. Rubio-Villareal, supra, 967 F.2d at p. 926.) The Due Process Clause of the Fourteenth Amendment “demandsthat even inferences — not just presumptions — be based on a rational connection between the fact proved and the fact to be inferred.” (People v. Castro (1985) 38 Cal.3d 301, 313.) In this context, a rational connection is not merely a logical or 176 reasonable one;rather, it is a connection that is “more likely than not.” (Ulster County Court v. Allen, supra, 442 U.S. at pp. 165-167, and fn. 28; see also Schwendeman v. Wallenstein (9" Cir. 1992) 971 F.2d 313, 316 [noting that the United States Supreme Court has required “‘substantial assurance that the inferred fact is more likely than not to flow from the proved fact on which it is made to depend.”].) This test is applied to judge the inference as it operates under the facts of each specific case. (Ulster County Court v. Allen, supra, at pp. 157, 162-163.) In this case, the prosecution needed a way to conform this set of facts to fit the criteria for first degree and/or special circumstance lying-in-wait murder charged under Penal Code section 190.2(a)(15). (People v. Anderson, supra, 70 Cal.2d at pp. 32-33.) This was accomplished through a series of inferences by which appellant’s mental state was elevated to the most culpable level - deliberate and premeditated murder. These inferences were based on circumstantial evidence and the improper and inflammatory evidence of appellant’s other crimes and misconduct. (See ArgumentI.) Added support camein the form ofthe instructions regarding evidence of consciousness-of- guilt. In closing argument, the prosecutor pointed out a few of appellant’s actions after the crimes. Appellant allegedly walked away from Bruni’s 177 house, exchangeda brief greeting with the neighbor, Mr. Valdez, and continued walking in the direction ofa trail he frequently used as a shortcut when walking to and from his apartment and Bruni’s home. Valdeztestified that appellant walked past him and began to run when an “alarm type” sound was heard. (7 RT 947-948.) Within a few hours, investigators found the Mossberg shotgun crudely concealed undera bush alongside a publictrail. (See 8 RT 1133-1134.) These circumstances were claimed to support consciousness of guilt. (See 11 RT 1578-1579 [prosecution’s closing argumentin the guilt phase].) * In reality, the evidence the prosecution relied on in this endeavor was not adequate to the task. The improper instruction permitted the jury to use the consciousness-of-guilt evidence to infer an intent or mental state which the entire evidentiary picture did not support. The improperinstruction permitted the jury to use the consciousness-of-guilt evidenceto infer, not only that appellant killed the victims, but also that he had done so while harboring the intent or mental state required for conviction offirst degree murder. Although the consciousness-of-guilt evidence in a murder case may bear on a 52 Notsurprisingly, the prosecutor did notcall the jury’s attention to others of appellant’s actions, specifically that he went back to his apartment and was wearing the same clothing when police arrested him without incident the following morning. (See 9 RT 1193-1200; 11 RT 1532.) 178 defendant’s state of mind after the killing, it is not probative ofhis state of mind immediately prior to or during the killing. (People v. Anderson, supra, 70 Cal.2d at p. 32.) As this Court explained: evidence of defendant’s cleaning up andfalse stories. . . is highly probative of whether defendant committed the crime, but it does not bear upon the state of the defendant’s mindat the time of the commission ofthe crime. (People v. Anderson, supra, 70 Cal.2d.at p. 33.) °° Appellant’s actions after the crimes, upon which the consciousness-of- guilt inferences were based, simply were not probative ofwhether he harbored the mental state for first degree premeditated murderat the time of the shooting. There wasno rational connection — muchless a link morelikely than not — between appellant’s alleged flight and consciousness by him of having committed the homicides with (1) premeditation; (2) deliberation,(3) malice aforethought, or (4) a specific intentto kill. The fact that appellant walked home cannot reasonably be deemedto support an inference that he 53 Professor LaFave makes the same point: Conduct by the defendant after the killing in an effort to avoid detection and punishmentis obviously not relevant for purposes of showing premeditation and deliberation as it only goes to show the defendant’s state of mind at the time and not before or during the killing. (LaFave, SUBSTANTIVE CRIMINAL LAW (2nd ed. 2003), vol. 2, § 14.7(a), pp. 481-482, originalitalics, fn. omitted.) 179 had the requisite mentalstate for first degree murder. This Court has previously rejected the claim that the consciousness-of-guilt instructions permit irrational inferences concerning the defendant’s mentalstate. (People v. Russell, supra, 50 Cal.4th 1228, 242 P.3d 68, 89.) ** Appellant respectfully asks this Court to reconsider and to hold that, in this case, instructing his jury with CALJIC 2.52 was reversible constitutionalerror. The foundation for this ruling is the opinion in People v. Crandell (1988) 46 Cal.3d 833. There the California Supreme Court noted that the consciousness-of-guilt instructions do not specifically mention mentalstate, and concluded: A reasonable juror would understand “consciousness of guilt” to mean “consciousness of some wrongdoing”rather than “consciousness of having committed the specific offense charged.” (Id at p. 871.) Appellant respectfully submits that the Crandell analysisis mistaken. First, the instructions do not speak of “consciousness of some wrongdoing;” they speak of “consciousness of guilt.” The Crandell opinion 54 (See also People v. Hughes, supra, 27 Cal.4th at p. 348 [CALJIC No. 2.03]; People v. Nicolaus (1991) 54 Cal.3d 551, 579 [CALJIC Nos. 2.03 and 2.52]; People v. Boyette (2002) 29 Cal.4th 381, 438-439 [CALJIC Nos. 2.03, 2.06 and 2.52].) 180 does not explain why the jury would interpret the instructions to mean something they do not say. Elsewherein the instructions the term “guilt”is used to mean “guilt of the crimes charged.” (See, e.g., 13 CT 3558; 11 RT 1562 [CALJIC No.2.90 stating that the defendantis entitled to a verdict of not guilty “in case of a reasonable doubt whetherhis guilt is satisfactorily shown”].) It would be a violation of due process if the jury could reasonably interpret that instruction to mean that appellant wasentitled to a verdict of not guilty only if the jury had a reasonable doubt as to whether his “commission of some wrongdoing”had beensatisfactorily shown. (/n re Winship, supra, 397 US.at p. 364; see Jackson v. Virginia, supra, 443 U.S. at pp. 323-324.) Second, although the consciousness-of-guilt instructions do not specifically mention the defendant’s mental state, they likewise do not specifically exclude it from the purview ofpermitted inferences or otherwise hint that any limits on the jury’s use of the evidence may apply. On the contrary, the instructions suggest that the scope of the permitted inferences is very broad. They expressly advise the jury that the “weight and significance”ofthe consciousness-of-guilt evidence “if any, are matters for your” determination.~ 55 In a different context, the California Supreme Court repeatedly has held that an instruction which refers only to “guilt” will be understood by the jury as applying to intent or mental state as well. A trial court need not deliver CALJIC No. 2.02, which deals specifically with the use of (continued...) 181 Becausethe consciousness-of-guilt instructions permitted the jury to draw irrational inferences of guilt against appellant, use of those instructions underminedthe reasonable doubt requirement and denied him fair trial and due process of law (U.S. Const. Amends. V and XIV; Cal.Const., art I, §§ 7, 15.) Theinstructions also violated his right to have a properly instructed jury find that all the elements ofall the charged crimes had been proven beyond a reasonable doubt (U.S. Const. Amends. VI and XIV; Cal.Const., art I, § 16), and, by reducing the reliability of the jury’s determination and creating the risk that the jury would make erroneousfactual determinations, the instructions violated his right to a fair and reliable capital trial (U.S. Const. Amends. VIII and XIV; Cal.Const., art I, § 17.) D. Reversalis Required. Appellant’s jury was given an instruction which encouraged them to draw impermissible inferences. The use of CALJIC 2.52 wasan error of federal constitutional magnitude as well as a violation ofstate law. °°(...continued) circumstantial evidence to prove intent or mentalstate, if the court has also delivered CALJIC No.2.01, the allegedly “more inclusive”instruction, which deals with the use of circumstantial evidence to prove guilt and does not mention intent, mental state, or any similar term. (People v. Marshall (1996) 13 Cal.4th 799, 849; People v. Bloyd (1987) 43 Cal.3d 333, 352.) 182 Accordingly, appellant’s murder conviction, the special circumstance findings, and the death judgment, must be reversed unless the prosecution can show that the error was harmless beyond a reasonable doubt. (Chapmanv. California, supra, at p. 24; see Schwendemanv. Wallenstein, supra, 971 F.2d at p. 316 [“A constitutionally deficient jury instruction requires reversal unless the error is harmless beyond a reasonable doubt”].) The state cannot make the required showing here. The instruction affected the jury’s determination of the central contested issue in the case: appellant’s intent in connection with the homicides. Without the first degree murder verdicts, appellant would not have been death-eligible. In this context, the erroneous use of the improper instruction cannot have been harmless beyonda reasonable doubt. Appellant’s convictions and sentence of death must, therefore, be reversed. IX. THE INSTRUCTIONS GIVEN TO APPELLANT’S JURY IMPERMISSIBLY UNDERMINED AND DILUTED THE REQUIREMENT OF PROOF BEYOND A REASONABLE DOUBT. A. Introduction and Overview of Legal Claims. Dueprocess “protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with 183 which heis charged.” (dn re Winship, supra, 397 U.S.at p. 364; accord, Cage . v. Louisiana (1990) 498 U.S. 39, 39-40; People v. Roder (1983) 33 Cal.3d 491, 497.) “The constitutional necessity ofproof beyond a reasonable doubtis not confined to those defendants who are morally blameless.” (Jackson v. Virginia, supra, 433 U.S. at p. 323.) The reasonable doubt standardis the “bedrock axiomatic and elementary principle whose enforcementlies at the foundation of the administration ofour criminal law,” (dn re Winship, supra, 397 U.S.at p. 363) andis at the heart of the right to trial by jury. (Sullivan v. Louisiana (1993) 508 U.S. 275, 278 [“the jury verdict required by the Sixth Amendmentis a jury verdict of guilty beyond a reasonable doubt”].) Jury instructions violate these constitutional requirements if “there is a reasonable likelihood that the jury understood the instructions to allow conviction based on proof insufficient to meet the Winship standard” ofproof beyond a reasonable doubt. (Victor v. Nebraska (1994) 511 U.S. 1, 6.) Thetrial judge in this case gave a series of standard CALJIC instructions, each ofwhich violated the above principles and enabled the jury to convict appellant on a lesser standard than is constitutionally required. Becausethe instructions violated the United States Constitution in a manner that can neverbe “harmless,” the judgmentin this case must be reversed. 184 (Sullivan v. Louisiana, supra, 508 U.S.at p. 275.) *6 B. The Instructions on Circumstantial Evidence Undermined the Requirement of Proof Beyond a Reasonable Doubt (CALJIC Nos. 2.90, 2.01, 8.83 and 8.83.2). Thejury wasinstructed according to CALJIC 2.90, stating in relevant part: “[a] criminal defendant in a criminal action is presumedto be innocent until the contrary is proved,” and “[t]his presumption places upon the People the burden ofproving him guilty beyond a reasonable doubt.” (13 CT 3558; 11 RT 1562.) These principles were supplemented by other instructions explaining the meaning of reasonable doubt. CALJIC No. 2.90 defined reasonable doubt as follows: It is not a mere possible doubt; because everything relating to humanaffairs is open to somepossible or imaginary doubt. It is that state of the case which,after the entire comparison and consideration ofall of the evidence, leaves the minds ofthe jurors in that condition that they cannot say they feel an abiding conviction of the truth of the charge. (13 CT 3558; 11 RT 1562.) The jury was given twointerrelated instructions - CALJIC Nos. 56 Appellant acknowledges that the California Supreme Court has rejected these arguments in other cases, andthat this Court recently upheld the use of these standard instructions in another capital case. (People v. Moore, supra,__ Cal.Rptr.3d [2011 WL 322379].) Appellant respectfully asks the Court to reconsider. 185 2.01 and 8.83— that discussed the relationship between the reasonable doubt requirement and circumstantial evidence. (13 CT 3551, 11 RT 1553 [sufficiency of circumstantial evidence to prove specific intent or mental state]; 13 RT 3562-3563; 11 RT 1568-1569 [special circumstances- sufficiency of circumstantial evidence - generally].) These instructions were relevant to different evidentiary issues but addressed them in nearly identical terms. Appellant’s jury was thus repeatedly advised that if one interpretation of the evidence “appears to you to be reasonable [and] the other interpretation to be unreasonable, you must accept the reasonable interpretation and reject the unreasonable.” (/d.) These instructions informedthe jurors that if appellant reasonably appearedto be guilty, they could find him guilty — even if they entertained a reasonable doubt asto guilt. This twice repeated directive underminedthe reasonable doubt requirement in two separate but related ways, violating appellant’s constitutional rights to due process of law (U.S. Const., Amend. XIV; Cal. Const., art. I, §§ 7 and 15), trial by jury (U.S. Const., Amends. VI and XIV; Cal. Const., art. I, § 16), and a reliable capital trial (U.S. Const., Amends. VIII and XIV; Cal. Const., art. I, § 17); see Sullivan v. Louisiana, supra, 508 U.S. at p. 278; Carella v. California (1989) 491 U.S. 263, 265; Beck v. Alabama, supra, at p. 638.) 186 First, these instructions not only allowed, but compelled, the jury to find appellant guilty on all counts and to find the special circumstances to be true using a standard lower than proof beyond a reasonable doubt. (Cf. Jn re Winship, supra, 397 U.S.at p. 364.) The instructions directed the jury to find appellant guilty and the special circumstances true based on the appearance of reasonableness: the jurors were told they “must” accept an incriminatory interpretation of the evidenceifit “appear[ed]” to them to be “reasonable.” An interpretation that appears to be reasonable, however, is not the same as an interpretation that has been proven to be true beyond a reasonable doubt. A reasonable interpretation does not reach the “subjective state of near certitude” that is required to find proof beyond a reasonable doubt. (Jackson v. Virginia, supra, 443 U.S. at p. 315; see Sullivan v. Louisiana, supra, 508 U.S. at p. 78 [“It would not satisfy the Sixth Amendment to have a jury determine that the defendant is probably guilty,” emphasis added].) Thus, the instructions improperly required conviction on a degree ofproof less than the constitutionally required standard ofproof beyond a reasonable doubt. Second, the circumstantial evidence instructions in this case were constitutionally infirm because they required the jury to draw an incriminatory inference when such an inference appeared to be “reasonable.” In this way, the instructions created an impermissible mandatory presumption that required 187 the jury to accept any reasonable inculpatory interpretation ofthe circumstantial evidence unless appellant rebutted the presumption by producing a reasonable exculpatory interpretation. “A mandatory presumption instructs the jury that it must infer the presumedfact if the State proves certain predicate facts.” (Francis v. Franklin (1985) 471 U.S. 307, 314 [emphasis added, fn. omitted].) Mandatory presumptions, eventhosethat are explicitly rebuttable, are unconstitutionalif they shift the burden of proofto the defendant on an elementofthe crime. (Francis v. Franklin, supra, at pp. 314- 318; Sandstrom v. Montana, supra, 442 U.S.at p. 524.) These twoinstructionsplainly told the jury that if only one interpretation of the evidence appeared reasonable, they must accept the reasonableinterpretation and reject the unreasonable. (13 CT 3551, 11 RT 1553; 13 RT 3562-3563; 11 RT 1568-1569 [emphasis added].) In Peoplev. Roder, supra, 33 Cal.3d at p. 504, the California Supreme Court invalidated an instruction that required the jury to presume the existence of a single element of the crime unless the defendant raised a reasonable doubtas to the existence of that element. A fortiori, this Court should invalidate the instructions given in this case, which required the jury to presumeai/ elements of the crimes supported by a reasonable interpretation of the circumstantial evidence unless the defendant produced a reasonableinterpretation of that evidence pointing to 188 his innocence. The constitutional defects in the circumstantial evidence instructions werelikely to have affected-the jury’s deliberations. First, they allowed the jurors to accept one or more ofthe prosecution’s theories about the first degree _ murderand the special circumstances simply becausethe theory (or theories) was “reasonable” even thoughthe evidence might not besufficient. The circumstantial evidence instructions, therefore, permitted and indeed encouraged the jury to convict appellant of first degree murder andto find the twospecial circumstanceallegations true upon a finding that the prosecution’s theory was reasonable, rather than upon proof beyond a reasonable doubt. The focus of the circumstantial evidence instructions on the reasonableness of evidentiary inferences also prejudiced appellant in another way — by requiring that he prove his defense was reasonable before the jury could deem it credible. Of course, “[t]he accused has no burden ofproof or persuasion, even as to his defenses.” (People v. Gonzales (1990) 51 Cal.3d 1179, 1214-1215, citing In re Winship, supra, 397 U.S.at p. 364, and Mullvaney v. Wilbur, supra, 421 U.S. 684; accord, People v. Allison (1989) 48 Cal.3d 879, 893.) The instructions, however, undercut the defense by requiring that appellant prove that his mental state defense was reasonable rather than requiring that the prosecution meet its reasonable doubt burden. 189 Forall these reasons, there is a reasonable likelihood that the jury applied the circumstantial evidenceinstructionsto find appellant guilty on a standard thatis less than constitutionally required. C. Other Instructions Also Vitiated The Reasonable Doubt Standard (CALJIC Nos. 1.00, 2.21.1, 2.21.2, 2.22, 2.27, 2.51 And 2.52). Thetrial court gave seven other standard instructions that individually and collectively diluted the constitutionally mandated reasonable doubt standard: CALJIC No. 1.00, regarding the respective duties of the judge and jury (13 CT 3549; 11 RT 1550); CALJIC No.2.21.1, regarding discrepancies in testimony (13 CT 3553; 11 RT 1556); CALJIC No.2.21.2, regarding willfully false witnesses (13 CT 3554; 11 RT 1556); CALJIC No. 2.22, regarding weighing conflicting testimony (13 CT 3554; 11 RT 1556-1557); CALJIC No. 2.27, regarding sufficiency of the evidence of a single witness (13 CT 3555; 11 RT 1557); CALJIC No. 2.51, regarding motive (13 CT 3556; 11 RT 1559);°’ and CALJIC No.2.52 regarding flight (13 CT 3556; 11 RT 1560). °*® Each ofthese instructions, in one way or another, urged the jury to decide material issues by determining which side had presentedrelatively 37 In Arguments VII and VU, appellant demonstrates that CALJIC Nos. 2.51 and 2.52 were improperfor additional reasons. 190 stronger evidence. In so doing,the instructions implicitly replaced the “reasonable doubt” standard with the “preponderance of the evidence”test, thus vitiating the constitutional protections that forbid convicting a capital defendant uponanylesser standard of proof. (Sullivan v. Louisiana, supra, 508 U.S. 275; Cage v. Louisiana, supra, 498 U.S. 39; Inre Winship, supra, 397 US. 358.) CALJIC Nos.2.21.1 and 2.21.2, also lessened the prosecution’s burden of proof. CALJIC No. 2.21.2 authorized the jury to reject the testimony of a witness “willfully false in one material part of his or her testimony” unless “from all the evidence, you believe the probability oftruth favors his or her testimonyin other particulars.” (13 CT 3554; 11 RT 1556 [emphasis added].) This instruction lightened the prosecution’s burden of proof by allowing the jury to credit prosecution witnesses by finding only a “mere probability of truth”in their testimony. (See People v. Rivers (1993) 20 Cal.App.4th 1040, 1046 [instruction telling the jury that a prosecution witness’s testimony could be accepted based on a “probability” standard is “somewhat suspect”].) °’ The 59 The court in Rivers nevertheless followed People v. Salas (1975) 51 Cal.App.3d 151, 155-157, wherein the court found noerrorin an instruction which arguably encouragedthe jury to decide disputed factual issues based on evidence “which appeals to your mind with more convincing force,” because the jury was properly instructed on the general governing principle of reasonable doubt. 19] essential mandate of Winship and its progeny — that each specific fact necessary to establish the prosecution’s case be proven beyond a reasonable doubt — is violated if any fact necessary to any element of an offense can be provenbytestimony that merely appeals to the jurors as more “reasonable”or “probably true.” (See Sullivan v. Louisiana, supra, 508 U.S.at p. 278; In re Winship, supra, 397 US.at p. 364.) Furthermore, CALJIC No. 2.22 provided as follows: Youare not required to decide an issue of fact in accordance with the testimony of a number of witnesses, which does not convince you, as against the testimony of a lesser numberor other evidence, which you find more convincing. You may not disregard the testimony of the greater number of witnesses merely from caprice, whim or prejudice, or from a desire to favor one side against the other. You must not decide an issue by the simple process of counting the number of witnesses who havetestified on the opposing sides. Thefinaltest is not in the relative number of witnesses, but in the convincing force of the evidence. (13 CT 3554; 11 RT 1556-1557.) This instruction informed the jurors that their ultimate concern must be to determine which party has presented evidencethat is comparatively more convincing than that presented by the other party. It specifically directed the jury to determine each factual issue in the case by deciding which witnesses, or which version, is more credible or more convincing than the other. In so doing,the instruction replaced the constitutionally-mandated standard of “proof beyond a reasonable doubt”with 192 somethingthat is indistinguishable from the lesser “preponderanceofthe evidence standard,”i.e., “not in the relative number of witnesses, but in the convincing force ofthe evidence.” As with CALJIC No. 2.21.2 discussed above, the Winship requirement ofproof beyond a reasonable doubtis violated by instructing that any fact necessary to any elementofan offense could be proven bytestimony that merely appealed to the jurors as having somewhat greater “convincing force.” (See Sullivan v. Louisiana, supra, 508 U.S.at pp. 277-278; In re Winship, supra, 397 U.S.at p. 364.) CALJIC No.2.27, regarding the sufficiency of the testimony of a single witness to prove a fact (13 CT 3555; 11 RT 1557), was flawed in its erroneous suggestion that the defense, as well as the prosecution, had the burden of proving facts. The defendantis only required to raise a reasonable doubt about the prosecution’s case; he cannot be required to establish or prove any “fact.” However, CALJIC No.2.27, bytelling the jurors that “‘[t]estimony concerning any fact by one witness, which youbelieve, is sufficient for the proof of that fact” and that “[y]ou should carefully review all the evidence upon which the proofofthat fact depends” — without qualifying this language to apply only to prosecution witnesses — permitted reasonable jurors to conclude that (1) appellant had the burden of convincing them that the homicide wasnot a premeditated and deliberate murder and(2) that this burden wasa difficult one 193 to meet. Indeed, this Court has “agree[d] that the instruction’s wording could be altered to have a more neutral effect as between prosecution and defense” and “encourage[d] further effort toward the development of an improved instruction.” (People v. Turner (1990) 50 Cal.3d 668, 697.) The above-quoted observation from the Turner opinion does notbegin to address the unconstitutional effect of CALJIC No.2.27, and this Court should find the instruction unconstitutional as it violates the Sixth and Fourteenth Amendment rights to due process anda fair jury trial. Each ofthe disputed instructions here individually served to contradict and impermissibly dilute the constitutionally-mandated standard that requires the prosecution to prove each necessary fact of each elementof each offense “beyond a reasonable doubt.” Taking the instructions together, no reasonable juror could have been expected to understand — in the face of so many instructions permitting conviction upon a lesser showing — that he or she must find appellant not guilty unless every elementofthe offenses was proven by the prosecution beyond a reasonable doubt. The instructions challenged here thus violated appellant’s constitutionalrights. D. This Court Should Reconsider its Prior Rulings Upholding these Defective Instructions. Each one of the challenged instructions violated appellant’s federal 194 constitutional rights by lessening the prosecution’s burden of proof and by operating as a mandatory conclusive presumption ofguilt. The California Supreme Court has repeatedly rejected constitutional challenges to many ofthe instructions discussed herein. (See, e.g., People v. Riel (2000) 22 Cal.4th 1153, 1200 [addressing false testimony and circumstantial evidence instructions]; People v. Crittenden, supra, 9 Cal.4th at p. 144 [addressing circumstantial evidence instructions]; People v. Noguera (1992) 4 Cal.4th 599, 633-634 [addressing CALJIC Nos.2.01, 2.02, 2.21, 2.27)]; People v. Jennings (1991) 53 Cal.3d 334, 386 [addressing circumstantial evidence instructions].) © While recognizing the shortcomings of someofthese instructions, the California Supreme Court has consistently stated that the instructions must be viewed “as a whole,” rather than singly; that the instructions plainly meanthat the jury should reject unreasonable interpretations of the evidence and should give the defendantthe benefit of 60 Although the California Supreme Court hasnotspecifically addressed the implications of the constitutional error contained in CALJIC Nos. 2.22 and 2.51, the courts of appeal have echoed the pronouncements of the Supreme Court on related instructions. (See People v. Salas, supra, 51 Cal.App.3d at pp. 155-157 [challenge to former version of CALJIC No. 2.22 “would have considerable weightif this instruction stood alone,”but the trial court properly gave CALJIC No. 2.90]; People v. Estep (1993) 42 Cal.App.4th 733, 738-739,citing People v. Wilson (1992) 3 Cal.4th 926, 943 [CALJIC No. 2.51 hadto be viewedin the contextofthe entire charge, particularly the language of the reasonable doubt standard set out in CALJIC No. 2.90].) 195 any reasonable doubt; and,that jurors are not misled whenthey also are instructed with CALJIC No.2.90 regarding the presumption of innocence. Appellant respectfully submits that the Court’s analysis is incorrect. First, what the California Supreme Court hascharacterized as the “plain meaning”ofthe instructionsis not whatthe instructions say. (See Peoplev. Jennings, supra, 53 Cal.3d at p. 386.) The question is whether there is a reasonable likelihood that the jury applied the challenged instructions in a way that violates the federal constitution (Estelle v. McGuire, supra, at p. 72), and there certainly is a reasonable likelihood that the jury applied the challenged instructions according to their express terms. Second, this Court’s essential rationale — that the flawed instructions were “saved”by the language of CALJIC No. 2.90 — requires reconsideration. (See People v. Crittenden, supra, 9 Cal4th at p. 144.) An instruction that dilutes the standard ofproof beyonda reasonable doubt on specific point is not cured by a correct general instruction on proof beyond a reasonable doubt. (United States v. Hall (5th Cir. 1976) 525 F.2d 1254, 1256; see generally Francis v. Franklin, supra, 471 US.at p. 322 [“Language that merely contradicts anddoesnot explain a constitutionally infirm instruction will not suffice to absolve the infirmity”]; People v. Kainzrants (1996) 45 Cal.App.4th 1068, 1075, citing People v. Westlake (1899) 124 Cal. 452, 457 [if an instruction states an incorrectrule of 196 law, the error cannot be cured by giving a correct instruction elsewherein the charge]; People v. Stewart (1983) 145 Cal.App.3d 967, 975 [specific jury instructions prevail over general ones].) “It is particularly difficult to overcome the prejudicial effect of a misstatement when the badinstructionis specific and the supposedly curative instruction is general.” (Buzgheia v. | Leasco Sierra Grove (1997) 60 Cal.App.4th 374, 395.) Moreover, nothing in the circumstantial evidence instructions given in this case explicitly informed the jury that those instructions were qualified by the reasonable doubt instruction.It is just as likely that the jurors concluded that the reasonable doubtinstruction was qualified or explained by the other instructions which contain their own independentreferences to reasonable doubt. Even assumingthat the language of a lawful instruction somehow can cancelout the language of an erroneous one — rather than vice-versa — the principle does not apply in this case. The allegedly curative instruction was overwhelmed by the unconstitutional ones. As discussed above,the jurors in this case heard several separate instructions, each of which contained plain language that was antithetical to the reasonable doubt standard. Yet the charge as a whole contained only one countervailing expression of the reasonable 61 A reasonable doubtinstruction also was given in People v. Roder, supra, 33 Cal.3dat p. 495, but it was not held to cure the harm created by the impermissible mandatory presumption. 197 doubt standard: CALJIC No. 2.90. This Court has admonished “that the correctness ofjury instructionsis to be determined from the entire charge of the court, not from a consideration of parts of an instruction or from a particular instruction.” (People v. Wilson, supra, 3 Cal.4th at p. 943 [citations omitted].) Underthis principle, it cannot seriously be maintained that a single instruction such as CALJIC No.2.90 is sufficient, by itself, to serve as a counterweight to the mass of contrary pronouncements given in this case. The effect of the “entire charge” was to misstate and undermine the reasonable doubt standard, eliminating any possibility that a cure could be realized by a single instruction inconsistent with the rest. E. Reversal is Required. Because the erroneous circumstantial evidence instructions required conviction on a standard ofproofless than proof beyond a reasonable doubt, their delivery wasa structural error whichis reversible per se. (Sullivan v. Louisiana, supra, 508 U.S.at pp. 280-282.) If the erroneous instructions are viewedonly as burden-shifting instructions, the error is reversible unless the prosecution can show that the giving of the instructions was harmless beyond a reasonable doubt. (Carella v. California, supra, 491 U.S.at pp. 266-267.) Here, that showing cannot be made. The questionsof guilt of first degree murder and the truth of the lying in wait special circumstance were close ones 198 (assuming arguendo that there even waslegally sufficient evidence to support the verdicts on these charges), and the dilution of the reasonable doubt requirementby the guilt phase instructions, particularly when considered cumulatively with the other instructional errors set forth in Arguments IV, VII, and VIII, must be deemed reversible error no matter what standard of prejudice is applied. (See Sullivan v. Louisiana, supra, 508 U.S.at pp. 278- 282; Cage v. Louisiana, supra, at p. 41; People v. Roder, supra, 33 Cal.3d at p. 505.) Accordingly, the judgments on counts 1 and 2, andthe “true” findings for the special circumstances must be reversed. | X. THE PENAL CODE SECTION 190.2(A)(15) LYING-IN-WAIT SPECIAL CIRCUMSTANCEIS UNCONSTITUTIONAL. The Eighth Amendmentprohibition against cruel and unusual punishment imposesa “fundamental requirement” on states employing capital punishment: they must “adequately protect[] against the wantonandfreakish imposition of the death penalty.” (Zant v. Stephens, supra, 462 U.S.at p. 876.) To comply with this requirement, a statemust ensurethat its capital sentencing scheme “genuinely narrow[s] the class of personseligible for the death penalty and ... reasonably justif[ies] the imposition of a more severe sentence on the defendant compared to others found guilty of murder.” (Zant v. Stephens, supra, at p. 877; see also Romano v. Oklahoma (1994) 512 U.S. 1,7; Aravev. 199 Creech (1993) 507 U.S. 463, 474; Lowenfield v. Phelps (1988) 484 U.S.231, 244; Godfrey v. Georgia, supra, 446 U.S.at p. 427.) California’s lying-in-wait special circumstance has been expanded so far over the past twenty yearsthat it does not meet either prong of this constitutional standard. (See Maynard v. Cartwright (1988) 486 U.S. 356.) First, the test for this special circumstance has been applied so looselythatit no longer performs a narrowing function at all. A murdereligible for the death penalty on the basis of “lying-in-wait” has becomevirtually indistinguishable from any premeditated murder. (See People v. Stevens, supra, 41 Cal.4th at p. 213 [Werdegar,J., concurring].) Second, the expansive construction given to this special circumstance fails to distinguish “in a meaningful way the category of defendants upon whom capital punishment may be imposed.” (Arave v. Creech, supra, 507 U.S.at p. 476 [statutory factors making a defendant eligible for the death penalty “must provide a principledbasis for doing so.”].) Appellant therefore respectfully requests that the Court reconsider its previous decisions regarding the constitutionality of the lying-in-wait special circumstance andset aside the jury’s “true” findings on the groundsthat this special circumstance is invalid becauseit fails to perform the narrowing function required by the Eighth Amendment. (But see People v. Carasi (2008) 44 Cal.4th 1263, 1310 [holding 200 statute is constitutional]; People v. Lewis, supra, 43 Cal.4th at pp. 515-517 [same].) A. This Special Circumstance Fails to Narrow the Class of Persons Subject to the Death Penalty. The lying-in-wait special circumstanceis established if the defendant commits an intentional murderthat involves (1) a concealment ofpurpose; (2) a substantial period of watching and waiting for an opportune timeto act; and (3) immediately thereafter, a surprise attack on an unsuspecting victim from a position of advantage. (People v. Morales, supra, 48 Cal.3d 527, 557.) The California Supreme Court stated in People v. Morales, “We believe” that this combination of elements “presents a factual matrix sufficiently distinct from ‘ordinary’ premeditated murderto justify treatingit as a special circumstance.” (Jd.) As construed andapplied by the courts ofthis state, each of these elements can be found in most cases of premeditated murder. Traditionally, “lying in wait” has referred to a physical concealment of the perpetrator in an ambushsituation. * (See People v. Merkouris (1956) 46 62 See Dictionary.com. Merriam-Webster’s Dictionary of Law, Merriam-Webster, Inc., http://dictionary.reference.com (defining “lying in wait”as “holding oneself in a concealed position to watch and wait for a victim for the purpose of making an unexpected attack and murdering or (continued...) 201 Cal.2d 540, 559-560 [lying in wait was not established because there was no evidence the defendant hid his presence].) In People v. Morales the California Supreme Court eliminated the physical concealment requirement. There, the Court held that “the concealment element ‘may manifestitself by either an ambush or by the creation of a situation where the victim is taken unawares even though he sees his murderer.’” (People v. Morales, supra, 48 Cal .3d at p. 555.) Asexplained by Justice Moskin his dissent in Morales, a perpetrator almost always “conceals his true purpose andintent before attacking his victim; almost never does he happen on his victim and immediately mount his attack with a declaration of his bloody aim.” (Morales, supra, at p. 575 (Mosk, J., dissenting]; accord People v. Stevens, supra, 41 Cal.4th at p. 223 [Moreno,J., dissenting and concurring].) Moreover, the concealment element has become so malleable in the years since Morales, that it has been found even in cases in which the perpetrator has frankly announced “his bloody aim.” (See People v. Hillhouse, supra, 27 Cal.4th at p. 501 [the defendant stated “I ought to kill you”before striking the victim]; see also People v. Arellano (2004) 125 Cal.App.4th 1088, 1091-92, 1094-95 [concealment of °(__.continued) inflicting bodily injury on the victim”). 202 purpose found despite defendant having threatenedto killhis ex-wife several times, andtelling the ex-wife and her mother he wasgoingto kill her on the day of the homicide].) Giventhis state of the law,it is not clear that the concealment ofpurpose requirement serves any narrowing functionasit appears to impose no meaningfullimits on the class of persons eligible for the death penalty. The California Supreme Court has also given expansive meaningto the “watching and waiting”elementofthis special circumstance, thereby compounding the constitutional infirmity caused by its broad interpretation of the concealment element. In Morales, the Court held there must be a “substantial” period ofwatching and waiting to support a Penal Codesection 190.2(a)(15) lying-in-wait special circumstance. (Morales, supra, at p. 457.) As Justice Kennard explained in her concurrence in People v. Stevens, the Court in Morales required “a substantial period of watching and waiting for an opportune time to act” in order to distinguish between the lying-in-wait special circumstance and first degree premeditated murder. (People v. Stevens, supra, 41 Cal.4th at p. 215 [Kennard, J., concurring] [emphasis in original]. See also People y. Lewis, supra, 43 Cal.4th at pp. 512-515.) The word “substantial” remainsa part ofthetest for this special circumstance. (People v. Stevens, supra, at pp. 201-202, citing People v. Morales, supra, 48 Cal.3d at p. 557.) 203 Subsequent decisions, however, have approvedjury instructionsstating that the period of watching and waiting “need not continue for any particular period oftime provided thatits duration is such as to show state of mind equivalent to premeditation or deliberation.” (People v. Stevens, supra,at pp. 201-202; People v. Sims (1993) 5 Cal.4th 405, 433-34.) Given that “{p}remeditation anddeliberation do not require much time” (People v. Lenart (2004) 32 Cal.4th 1107, 1127), this new construction effectively nullifies the “substantial period” requirement. (See People v. Stevens, supra, 41 Cal.4th at p. 215 [Kennard, J., concurring] [the new standard “undercuts”the test set forth in Morales]. See also People v. Stevens, supra, at pp. 220-221 [Moreno, J., dissenting] [substantial period of watching and waiting”as interpreted in Morales has becomeno more than the watching and waiting neededto establish the premeditation and deliberation required in ‘ordinary’ premeditated murder.”). As a result, this element no longer serves to distinguish the special circumstance from non-capital premeditated murder. (See Stevens, supra, 41 Cal.4th at p. 216 [Kennard,J., concurring] [concluding that the Court was “wrong in departing from this [its] earlier holding in [Morales] that the lying-in-wait special circumstance requiresa ‘substantial’ period of watchful waiting.”].) Thefinal requirement, “a surprise attack on an unsuspecting victim 204 from a position of advantage” immediately following the period of watching and waiting,is routinely treated as if it were a separate, additional factor. The purpose of concealing the intentto kill is to gain a position of advantage and catchthe victim unawares. A surprise attack will always require some concealment, whether of the personor the purpose, to be successful. Surprise is “a common feature of murder- since murderers usually want their killings to succeed, and victims usually don’t wantto be murdered....” (Stevens at p. 223 [Moreno, J., dissenting].) In her concurrence in Stevens, Justice Werdegar expressed serious concern that “the concept of lying in wait threatens to become so expansive as to eliminate any meaningful distinction between defendants rendered eligible for the death penalty by the special circumstance and those who have ‘merely’ committed first degree premeditated murder.” (Stevens at p. 213 [Werdegar, J., concurring]. As shown above,that threat has been realized. The lying-in-wait special circumstance as currently applied is more likely to include than exclude a defendant found guilty of premeditated murder. Penal Code section 190.2(a)(15) special circumstancethereforefails to “genuinely narrow”the class of death-eligible defendants, in contravention of the Eighth Amendment. (Zant v. Stephens, supra, at p. 877.) 205 B. This Special Circumstance Fails to Provide a Meaningful Basis for Distinguishing among Defendants Found Guilty of | Murder. Evenif the lying-in-wait special circumstance were not applicable to most premeditated murders, there is a second reason this special circumstance provision is unconstitutional. To protect the defendant’s Eighth Amendmentrights, a special circumstance must not only narrow the class of murderers, but must doso in a principled and meaningful way that “reasonably justif[ies] the imposition of a more severe sentence on the defendant comparedto others found guilty of murder,” (Romano v. Oklahoma, supra, 512 U.S.at p. 7 [internal citations omitted].) California’s lying-in-wait special circumstance, asit is presently construed, does not provide a meaningfulbasis for identifying a subclass of defendants who are “more deserving of death.” (Arave v. Creech, supra, at p. 476.) As Justice Moreno observed in People v. Stevens, “[t]he lying-in-wait special circumstanceas interpreted by this court declares in effect: “The defendant deserves a greater punishment than the ordinary first degree murderer because not only did he commitfirst degree murder,but he failed to 999 let the person know he was going to murder him before he did.’” (People v. Stevens, supra,at p. 223.) It is not clear, though, why a murderer who 206 confronts his victim andtells him, “I’m going to kill you”is less culpable than - one whohideshis intentions and surprises the victim. The former is most likely either sadistic or confidentof his ability to overpower a defenseless victim, or both. A special circumstance that qualifies a defendantfor the death penalty based onthe use of surprise while allowing a defendant whodeclares his intent to kill to a defenseless victim or sadistically toys with his victim to escape the most severe penalty does not provide a “meaningful basis” for identifying those few defendants who are more deserving of death. (Aravev. Creech, supra, at p. 476.) ERRORSIN THE PENALTY PHASE XI. THE VICTIM IMPACT EVIDENCE AND TESTIMONY IN THE PENALTY PHASE WAS UNDULY INFLAMMATORYIN LIGHT OF THE CIRCUMSTANCESOF THIS CASE, AND THE ADMISSION OF THIS EVIDENCE WAS ERROR UNDER STATE AND FEDERAL LAW. A. Introduction. The quantity of victim impact evidence presented in the penalty phase was not unusually large in comparison to other cases decided by the California 207 Supreme Court overthelast ten years. © Four witnessestestified in appellant’s case: Bruni’s mother Celena Rodriguez; her sister Lupe Quiles; Clari Burgos; and Vallerie Cage. The testimony occupied approximately 43 transcript pages, and was accompanied by 11 exhibits. The exhibits were photographsofthe victims, David and Bruni, taken throughouttheir lives and often showing the victims with the witnesses and other family members. The victim impact evidence was not voluminous. It was, however,highly prejudicial for two reasons. First, the testimony touched upon areas expressly forbidden by the decisions of this Court and the United States Supreme Court. Mrs. Rodriguez testified about Bruni as a baby and younggirl growing up in Puerto Rico, accompanyingher testimony with some of Bruni’s baby pictures. (See 14 RT 1928-1930.) Bruni’s sister, Lupe Quiles, gave very graphic and disturbing testimony about her experience upon viewing the crime scene several days after the shootings. (See 14 RT 1941-1944.) Finally, Clari Burgos expressed her opinion of appellant and the crime. (See 15 RT 2092.) The second reason for the especially prejudicial impact of this evidence was the relationships of the parties. These wereinter-family crimes, and the family dynamic played out 63 Compare People v. Brady (2010) 50 Cal.4th 547, 567-573 [no error when60 witnesses over 12 days testified] People v. Taylor, supra, 48 Cal.4th 574, 656 [testimony ofsix relatives filled 30 transcript pages]. 208 in the courtroom in full view of the jurors and distracted them their duty to rationally determine whetheror not to impose a sentence of death. Forall of the reasons discussed below,the victim impact evidence presented in the penalty phase of appellant’s trial was undulyprejudicial and reversalis required. B. Overview Of Legal Claims. The admission of this irrelevant and unduly prejudicial victim impact evidence and argumentcreated a fundamentally unfair atmosphere for the penalty phase of appellant’s capitaltrial, thereby depriving him ofhis state and federal constitutional rights to due process of law and a reliable sentencing determination. (U.S. Const. Amends. V, VIII, XIV; Calif. Const. Art. I, §§ 7, 15, 17 and 24; Payne v. Tennessee, supra, 501 U.S. 808; People v. Edwards supra, 54 Cal.3d 787.) Thetrial court also abusedits discretion under California law by admitting irrelevant victim impact evidence with no connection to the circumstances “materially, morally or logically” surrounding the capital crimes. (Evid. Code §350; People v. Edwards, supra, 54 Cal.3d 787, 835.) In other instances the evidence, although arguably relevant, ought to have been excluded because the potential for undue prejudice outweighed its probative value. (Evid. Code §352; People v. Haskett, supra, 30 Cal.3d at p. 846; People v. Edwards, supra, 54 Cal.3d 787; People v. Love (1960) 53 209 Cal.2d 843.) Appellant also urges this Court to reconsiderits rejection of certain other claims in previous cases. “ First, he contends that the trial court deprived him ofa state created liberty interest and due processoflaw by admitting this evidence and argument contrary to established California law. (Hicks v. Oklahoma, supra, 447 U.S.at p. 346; Lambright v. Stewart, supra, 167 F.3d 477; contra, People v. Boyette, supra, 29 Cal.4th at pp. 445-446, fn. 12.) Second, the California Supreme Court’s construction ofPenal Code Section 190.3 (a) under which the “circumstances of the crime” encompasses virtually everything which “materially, morally, or logically” surrounds the crimeis unconstitutional. This broad interpretation of Section 190.3(a) renders the statute void for vagueness, encourages arbitrary decision-making, and fails to provide proper notice to the defendant. (U.S. Const. Amends. V, VIII and XIV; Calif. Const. Art. I, §§ 7, 15, 17 and 24; contra, People v. Wilson (2005) 36 Cal.4th 309, 358; People v. Boyette, supra, 29 Cal.4th 381.) For all of the reasons discussed below,this Court must reverse the judgment of death. C. Standard of Review. The California Supreme Court generally reviewsa trial court’s 64 See, e.g., People v. Brady, supra, 50 Cal.4th at pp. 567-573. 210 evidentiary rulings for abuseof discretion. (See People v. Brady, supra, 50 Cal.4th at p. 567; People v. Burgener, supra, 41 Cal.3d 505; Evid. Code §§ 350, 352.) Appellant contends that heightened scrutiny is appropriate and necessary because these claims involve constitutional error in the context of a capital case. (Gardner v. Florida, supra, 430 U.S.at pp. 357-358.) This Court should independently examine the record to determine whetherthetrial court’s erroneous admission ofthis prejudicial evidence was harmless beyond a reasonable doubt. (Chapman v. California, supra, at p. 24.) D. The Basic Law Of Victim Impact. 1. The Limited Constitutional Authorization Provided by Payne v. Tennessee. In 1991 the United States SupremeCourt decided Payne v. Tennessee, supra, 501 U.S. 808,partially overruling its previous decisions in two cases (Booth v. Maryland, supra, 482 U.S. 496, and South Carolina v. Gathers (1989) 490 U.S. 805), whichhadstrictly prohibited the introduction ofvictim impact evidenceor prosecutorial argument on the subject in the sentencing phase ofa capital trial. A divided Supreme Court held that the Eighth Amendmentis not a perse barto all “evidence about the victim and about the impact of the murder on the victim’s family.” (Payne v. Tennessee, supra, 501 211 USS. at pp. 825, 827.) The Payne majority reasoned that Booth v. Maryland, supra, had beentoorestrictive as it “barred [the state] from either offering a ‘glimpse ofthe life’ which a defendant ‘chose to extinguish,’ [citation omitted] or demonstrating the loss to the victim’s family and to society which has resulted from the defendant’s homicide.” (Payne v. Tennessee, supra, 501 U.S.at p. 822.) Two general rationales were advanced in support of allowing victim impact. First, victim impact evidence may demonstrate “the specific harm”caused by the defendant’s capital crimes which would be relevant “for the jury to assess meaningfully the defendant’s moral culpability and blameworthiness ....” (/d at p. 825.) Second, the state was entitled to present victim impact to balance mitigating evidence presented by the defense. (Ibid.) In the event that unduly prejudicial victim impact evidence was admitted, the defendant could seek relief under the due process clause of the Fourteenth Amendment. (/d at p. 825.) Payne v. Tennessee removedthe “brightline” prohibition on victim impact imposed by Booth and Gathers and authorized the use of two types of evidence about the capital murder victim: “victim character,” i.e., evidence concerning the victim’s good qualities, life history and personal achievements; and “victim impact,” which is evidenceofthe effect of the victim’s death on 212 others. However, the United States Supreme Court did not specify the constitutionallimits of this authorization in Payne and has not donesoin any subsequentcase. °° If the Court’s holding is interpreted in light of the case in whichit was made, Payne v. Tennesseeplainly does not imply approval of extensive victim 65 As used herein, “victim character,”refers to evidence concerning the victim‘s good qualities, life history and personal achievements; and “victim impact”is evidenceofthe effect the victim’s death will have on others. Although recognizing that the United States Supreme Court has not distinguished between these twotypes of evidence, the Texas Court of Criminal Appeals adopts these categories for purposes of the discussion in Mosley v. State (Tex.Crim.App. 1998) 983 S.W.2d 249,261. 66 The nearly 20 years following Payne v. Tennessee andthe California Supreme Court’s decision in People v. Edwards, have seen a substantial expansionin the use ofvictim impact evidence. Legal scholars have observed the “overwhelming trend” toward the admission of victim impact in greater quantities and in a wideningarray of forms. (See Blume, Ten Years ofPayne: Victim Impact Evidence in Capital Cases (2003) 88 Cornell L.Rev. 257, 280.) The law, however, has not developed apaceat either the state or federal level. Writing concerning the denials of petitions for certiorari in two California cases, Justice Stevens not long ago observedthe needfor morepreciseconstitutional standards. As Justice Stevensnoted, the United States Supreme Court has“left state and federal courts unguided in their efforts to police the hazy boundaries between permissible victim impactevidence and its impermissible, ‘unduly prejudicial’ forms.” (Kelly v. California (2008) 129 S.Ct. 564, 566.) Justice Breyer wrote separately, expressinghis belief that the high court should begin devising workable standards for victim impact because “the due process problem of disproportionately powerful emotion is a serious one.” (Kelly v. California, supra, 129 §.Ct. at p. 568.) 213 impact material. The victim impact evidence challenged in Payne wasactually quite restrained, particularly in light of the underlying facts. In Payne, a twenty-eight-year-old mother and her two-year-old daughter were killed with a butcher knife in the presence of the mother’s three year-old son who survived critical injuries in the attack. The disputed testimony was brief response to a single question posedto the surviving child’s grandmother. When asked about what she had observedin the child after witnessing the murders of his mother andsister, the grandmothertestified that the boy cried for his mother and that he missed herandhissister. In closing argument, the prosecutorsaid, “His mother will never kiss him good night or pat him as he goesoff to bed, or hold him and sing him a lullaby.” (/bid.) Theprecise constitutional parameters ofvictim character evidence are also uncertain based on the Court’s opinion in Payne v. Tennessee.” Payne 67 The Supreme Court did not need to address this question directly in Payne becausethe testimony at issue there was actually “victim impact” as opposed to “victim character” evidence. The grandmother in Payne testified very briefly about her grandson’s reactions to the deaths of his mother and youngersister. The prosecutor’s closing argument also focused on the crime’s immediate and long term impact. No specific qualities were attributed to the victims and, as noted by the Payne dissenters, the jurors gained no more information aboutthe victims in the penalty phase than they had received in the guilt phase ofthe trial. (Payne, supra, at pp. 865-866 (dis. opn. Stevens, J. and Blackmun,J.).) 214 allowsjurors to receive some information about the victim’s personal characteristics beyond those facts disclosed in the guilt phaseoftrial. The Supreme Court’s referencesto victim character evidence, however, cannot reasonably be understood as authorizing the introduction of extensive biographical information or detailed descriptions of specific charactertraits. Payne speaksofpermitting the jury to see a “quick glimpse ofthe [victim’s] life.” The majority comment that the victim need not remain a “faceless stranger” in the penalty phase of a capital trial. (Payneat p. 825, quoting South Carolina v. Gathers, supra, 490 U.S. at p. 821 (O’Connor,J., dissenting).) Elsewhere, the Court notes that the “uniqueness” and “individuality” of the victim may be considered as a meansofbalancing the defense evidence in mitigation. (See, e.g., Payne at pp. 839-839 (conc. opn. of Souter, J., and Kennedy,J.).) It could reasonably be argued that Payne sanctions only a very limited amountof victim character information,i.e., enoughto preventthe victim from becoming “faceless.” (See Blume, Ten Years ofPayne, supra, at pp. 266-267.) Whatis clear from the Payne opinion is the conspicuous absence of blanket approval for any and all victim impact and victim character evidence. Payne does not sanction the wholesale admission of evidence about the victim’s character, personal history, unique 215 attributes and accomplishments. Nor does the Supreme Court in Payne suggest that evidence aboutthe “impact” of the crime is unlimited in termsof quantity, or admissible irrespective ofits potential for undue prejudice. Appellant’s case contains a substantial amount of victim impact and victim character evidence; far beyond anything contemplated in Paynev. Tennessee. As discussed further below, the reasoning ofPayne and other decisions in the state and federal courts requires that the sentence of death be reversed due to the enormity ofthe prejudice which surely flowed from the evidence and argumentin this case. 2. Victim Impact Evidence under California Law. Shortly after the United States Supreme Court’s decision in Paynev. Tennessee, the California Supreme Court decided People v. Edwards, supra, 54 Cal.3d 787, holding that victim impact evidence and argumentis relevant and admissible under factor (a) of Section 190.3 — which allowsthe jury to consider the circumstances of the capital murder when deciding whether to imposelife imprisonmentor the death penalty. (Ud. at pp. 83 5-836.)The 68 The California Supreme Court has long held that aggravating evidence is admissible in the penalty phase only whereit is relevant to one of the factors set forth in California’s death penalty statute. (Pen. Code §190.3; People v. Boyd (1985) 38 Cal.3d 762, 775-776.) 216 Edwards Court defined “circumstances”so broadly as to include almost any imaginable form of victim impact evidence: The word circumstances as used in factor (a) of section 190.3 does not mean merely the immediate temporal and spatial circumstances of the crime. Rather, it extends to “[t]hat which surrounds morally, materially, or logically” the crime.(3 Oxford English Dict. (2d ed. 1989) p. 240, “circumstance,”first definition.) (People v. Edwards, supra, at p. 833.) It is generally agreed that this set of relevant circumstancesincludes the guilt phase evidence,” and any of the victim’s personal characteristics which were knownor apparentto the defendant. ” Although both federal and state principles require that there must be some “outer limits” for victim impact evidence, 69 See, e.g., People v. Clark (1993) 5 Cal.4th 950 [prosecutor’s argument concerning victim’s age, vulnerability and innocence]; People v. Zapien (1993) 4 Cal.4th 929 [argumentabout the crime’s impacton victim’s children] People v. Fierro (1991) 1 Cal.4th 173 [prosecutor’s commentthat victim waskilled in front of his business of 40 years and that his wife, who waspresent, will have to live with the memory of the shooting]. 70 See, e.g., People v. Wash (1993) 6 Cal.4th 215, 267 [victim’s plan to enlist in the army which she discussed with the defendant]; People v. Montiel (1993) 5 Cal.4th 877 [victim’s general good health and positive outlook in spite of his need for a walker]; People v. Edwards, supra, 54 Cal.3d at p. 832 [photographsofvictims shortly before their death to demonstrate how they appeared to the defendant]. 217 the California Supreme Court has given few indications, in the fifteen years since Edwards, of where they may be found. The Court has refused to exclude from the realm of relevant circumstances matters which the defendant did not know and could not readily observe,” and has been similarly disinclined to confine victim impactin other respects. For example, victim impact witnesses are not limited to persons who werepresentat the scene or soonthereafter,” and need not be membersofthe victim’s immediate family. ” As discussed below, a substantial portion of the victim impact evidence in this case was irrelevant under California law because it could not reasonably be connected to a circumstance of the capital crimes. Appellant also observes, however, that much ofthis evidence and testimony would not have been admitted under a narrowerdefinition of “circumstances.” Other jurisdictions have adopted clear and specific guidelines for victim impact which provide notice to the defense and reducethe risk of a trial court erroneously admitting 7h See, e.g., People v. Roldan (2005) 35 Cal.4th 646; People v. Pollock (2004) 32 Cal.4th 1153. 72 People v. Taylor (2001) 26 Cal.4th 1155. 73 People v. Pollock, supra, 32 Cal.4th 1153; People v. Marks, supra, 31 Cal.4th 197. 218 irrelevant victim impact in an unconstitutionally vague and arbitrary application of California’s statute. * Appellant respectfully asks the California Supreme Court to reconsider its previousrulings declining to limit the admission of victim impact evidence. (See,e.g., People v. Roldan, supra, 35 Cal.4th 646; People v. Pollock, supra, 32 Cal.4th 1153.) Alternatively,it is respectfully suggested that this Court refine and narrowthe definition of relevant circumstancesset forth in People v. Edwards. A narrowerdefinition of “circumstances” for purposes of Penal Code section 190.3 would be easier for lower courts to administer, would be less susceptible to arbitrary decision- making, and would provide moreeffective notice to the defendant. ” Underpresent California law, victim impact evidence offered under 74 The California Supreme Court has acknowledged that the United States Supreme Court has not considered whether factor(a) is unconstitutionally vagueto the extent thatit “is interpreted to include a broad array ofvictim impact evidence ...” (People v. Boyette, supra, 29 Cal.4th 381, 445, fn. 12.) 75 A moretraditional and conservative approachto statutory interpretation wouldbe to define “circumstance”as “[a]ttendantor accompanying facts, events or conditions.” (Black’s Law Dict. (6th ed. 1990) p. 243.) A federal court has defined “circumstances”as “facts or things standing around or about somecentralfact.” (State ofMarylandv. United States (4" Cir. 1947) 165 F.2d 869, 871.) Anotherstate court has defined “circumstances ofthe offense” as “the minor or attendant facts or conditions which havelegitimate bearing on the major fact charged.” (Commonwealth y. Carr (1950) 312 Ky. 393, 395 [227 S.W.2d 904, 905].) 219 Penal Code Section 190.3(a), is subject to exclusion ifit is cumulative, misleading or unduly prejudicial. (Evid. Code §352; People v. Box (2000) 23 Cal.4th 1153, 1200-1201; People v. Staten, supra, 24 Cal.4th 434, 462- 463.) Victim impact should,therefore, be subject to exclusion or limitation like any other proffered evidence. (See, e.g., People v. Gurule (2002) 28 Cal.4th 557, 654.) People v. Edwards cautionsthat excessively emotional victim impact evidence carries an unacceptablerisk of improperprejudice: Our holding does not meanthat there are no limits on emotional evidence and argument. In People v. Haskett, supra, 30 Cal.3d at page 864, we cautioned, ‘Nevertheless, the jury mustfaceits obligation soberly andrationally, and should not be given the impression that emotion may reign over reason. [Citation.] In each case, therefore, the trial court must strike a careful balance between the robative and the prejudicial. [Citations.] On the one hand,it should allow evidence and argument on emotional though relevant subjects that could provide legitimate reasons to sway the jury to show mercy or to imposethe ultimate sanction. Onthe other hand, irrelevant information or inflammatory rhetoric that diverts the jury’s attention from its properrole or invites an irrational, purely subjective response should becurtailed. (Idat p. 836, fn. 11.) The California Supreme Court has repeatedly stated that reversible error would result in the “extreme case” where victim impact evidence was likely to “divert the jury’s attention from its proper role.” (People v. Smith, 220 supra, 35 Cal.4th at p. 365.) ” In practice, however, this Court has never reversed a capital case due to the trial court’s failure to exclude victim impact evidence. Reversal is required here because several distinct forms of improper victim impact were admitted. This evidence wasespecially inflammatory in the context of this case, where the defendant, victims and witnesses were part of the same family. The result was a prejudicial atmosphere in which the jury was unable to perform its proper function at sentencing. Underthese circumstances, reversal of appellant’s sentenceis required as there is an unacceptablerisk that this jury’s decision to impose a death sentence was based on emotion rather than reason. (Gardnerv. Florida, supra, 430 U.S. at p. 358; Gregg v. Georgia (1976) 428 U.S. 153, 189.) E. The Penalty Phase Testimony. 1. The testimony of Bruni’s mother, Mrs. Celena Rodriguez. 76 The Court in Smith foundthe brief testimony of the mother ofthe child victim was not inflammatory. The Court commented: “We do not, however, know ofany cases after Payne and Edwards holding victim impact evidence inadmissible, or argument based on that evidence improper. The references in Payne and Stanley [People v. Stanley,supra, 10 Cal.4th 764, 832] to the exclusion of unduly inflammatory victim impact evidence contemplates an extreme case, whichis notthe situation here.” (People v. Smith, supra, at p. 365.) 221 Bruni’s mother, the 83 year-old Mrs. Celena Rodriguez, came from Puerto Rico totestify in the penalty phase. (14 RT 1926.) Mrs. Rodriguez had 18 children, the first was born when she was 20 years old. (/d.) Bruni washersixth child. 7’ The prosecutor asked: “Can youtell us about the family that you have,all ofyour children? Were you a close-knit family?” (14 RT 1927.) Mrs. Rodriguez agreed that hers had been a very close family. All the children wereraised in Puerto Rico. (14 RT 1927-1928.) After Bruni married, she lived across the street from her parents. (14 RT 1930.) Mrs. Rodriguez sent Bruni to be with her older sister in California when Bruni was having trouble with an abusive husband. (14 RT 1927- 1928.) Clari had been around 5 years-old, and Richie around 4 years-old at the time. (/d.) In California Brunistayed with her eldersister, Mrs. Rodriguez’s fourth child Guadalupe “Lupe” Montanez. (14 RT 1927- 1928.) Mrs. Rodriguez spoke to Bruni on the telephone often, and visited the US once a year. (14 RT 1929.) Bruni also came to Puerto Rico for visits. Ud.) Mrs. Rodriguez last saw Brunialive in July of 1998. Mrs. Rodriguez stayed at Bruni’s home for around two weeksbefore leaving on 77 When Mts. Rodriguez had trouble recalling the year Bruni was born, a spectator said “1948.” The court cautioned the audience notto testify or comment. (14 RT 1926.) 222 July 19, 1998, to spend a week in Florida with her daughter Lupita before . returning to Puerto Rico. (14 RT 1930.) 2. The testimony of Bruni’s sister, Lupe Quiles. Bruni’s youngersister, Lupe Quiles, also testified. (14 RT 1934.) Bruni was two years older than Lupe, and she was Lupe’sbest friend. (14 RT 1935.) Bruni’s waslike a second motherto her younger siblings. (Jd.) Twoorthree years after Lupe and her husband cameto the UnitedStates, their mother sent Bruni and her children, Clari and Richie, to get Bruni away from an abusive husband. Lupe wasliving in Carson, California,at the time. (14 RT 1935.) Bruni had been a legal secretary in Puerto Rico. (14 RT 1937.) Lupe got her a job where she worked,at the Carson Metal Container Company. (/d.) In the mid to late 1980s Lupe bought a houseandleft her entire apartment for Bruni and the kids. (14 RT 1936.) Lupe wasstill close by and they saw each otherall the time. In 1985, Lupe moved to Diamond Bar and Bruni stayed in Carson. (14 RT 1936.) In 1991, Lupe moved to Florida because of her husband’s job. (/d.) She had wanted Bruni to move also, but Bruni didn’t want to leave Clari. (14 RT 1937.) Lupe gavea detailed and dramatic description of how she learned of Bruni’s and David’s deaths. Whenshe received the news she becamesoill 223 and emotionally overcomethat she fainted. (14 RT 1938-1940.) Lupe related how she had flown to Los Angeles, and met Clari at the airport. (14 RT 1940-1942.) She and Clari drove to Bruni’s house together. Lupe’s description of the crime scene andits effect on her was very dramatic and disturbing. She went into detail about all the blood and brain matter. They cleaned the house with gallons of bleach because she could not stand to keep walking over andin hersister’s blood. (14 RT 1940-1942.) The hardest part was sweeping the floor in the entryway. Bone fragments were all over the place. (14 RT 1941-1942.) Lupe knew that she was sweeping up pieces ofher sister’s face. She couldn’t bear to throw out one ofthe larger pieces of bone which she thinks waspart of Bruni’s nose. (14 RT 1941-1942.) She kept it and has it hidden away at home andhasnottold anyone until now. (/d.) The court suggested a recess because the witness wasgetting so upset. (14 RT 1942.) Lupeplanteda tree in her yard to honor Bruni and David. (14 RT 1944.) She places twocrosses on the tree and the family gathers there to pray andto lay flowers on Bruni’s and David’s birthdays. (14 RT 1945.) They buy a cake and they sing Happy Birthday for Bruni. Bruni’s birthday is May 11", and often coincides with Mother’s Day. (14 RT 1935; 1945.) Thetree is always decorated in Bruni’s honor at Christmas, Easter andall 224 family gatherings and holidays. (14 RT 1945.) Lupe has been taking care of Richie because she had always promised Brunithat she wouldifnecessary. (14 RT 1948.) Richie is in very bad shape. (14 RT 1948.) Heis in a mental hospital in Tampa and they are trying to determine whether he will ever get out. Because of what he saw, he has been very unbalanced. (14 RT 1948.) Over defense obj ection, Lupedescribes how Richie found the bodies and was “hugging a mother without a face.” (14 RT 1948-1949.) Richie has become violent and aggressive, and heis too difficult for Lupe and her husband to control. He can’t live alone and function in his own apartment even with extensive family support. (14 RT 1950.) _ Asked to describe her own feelings, Lupe stated “part of my heart is dead.” (14 RT 1952-1953.) Her relationship with her husband of 37 years has suffered. She is very depressed, and the conflicts and stress with Richie have been very difficult. (14 RT 1952-1953.) At the prosecutor’s request, Lupe described the difference between losing anothersister to illness. (14 RT 1953-1954.) Bruni wassofull oflife and so healthy. David wastoo, and she recalls how Bruni was so proud of David. Ofher three children Bruni thought David was the one who would grow upto be successful. He wasbright and ambitious. (14 RT 1953-1954.) 225 3. The testimony of Clari Burgos In her penalty phase testimony, Clari was askedto describe the relationship she had with her brother David. (15 RT 2086.) Clari had been only 14 years-old when David wasborn. Shetold the story ofhow she had been the one to choose David’s name. (15 RT 2087.) Clari had taken care of David as a baby. Heslept in her bed every night until he was two or three years old. David waslike a son to her. She got a job at McDonald’s or she could buy clothes and things for him. (15 RT 2087-2088.) David went everywhere with her when he was a small child. When he became a teenager and wanted to be with his own friends, Clari would get him to invite all the kids over and she would cook for them and have them there to play video games. (15 RT 2088.) Clari taught Davidto drive, and she paid for his drivers education class and his license. (15 RT 2088-2089.) When David finished the class he went right away to get his drivers license. (15 RT 2090.) Clari commented, “he got his license on Saturday waskilled on Monday.” (/d.) The driver’s license arrived in the mail after his death whenshe wasthere to collect the bodies. ([bid.) ™ 78 In connection with her testimony Clari identified two photographs. People’s Exh. No. 164, was taken at her Aunt Lupe’s house in Diamond Bar, California. She did not recall what year the picture was taken, but (continued...) 226 Holidays are no longercelebrated as a result of the crimes. (15 RT 2091.) Aunt Lupe calls Clari all day on Mother’s Day asking her to come over, but Clari will not answer the phone. (/d.) She cannot bearto see or speak to anyone on that day. Sheis not in counseling, and feels she cannot use her family members for support. (15 RT 2091.) Clari was afraid that if she were to “open up” she would be unable to remain functionalfor her children. (/bid.) There is no joy or happinessin her life, and she is not okay. (15 RT 2092.) Clari explained that she feels guilty, as it was because of her that defendant wastaken in treated like a son by her mother. She stated, “Basically, I live one day at a time. And I try to be here for my kids.” (15 RT 2092.) Clari testified that she would “definitely” feel differently if her mother and her brother had died in a car accident. (15 RT 2092.) In response to a question from the prosecutor, she stated, “Well, how would you feel if you brought the devil to your mom’s houseandhedid it to her?” (15 RT 2092.) #8(...continued) David seemsto be about nine or ten years old. The photo represented “a typical holiday for the family back then.” People’s Exh. No. 165 was a photo of the same occasion with appellantin it. (15 RT 2091.) 227 4, Vallerie Cage’s Testimony. Vallerie Cage described how she and David werelike brother and sister. (15 RT 2053.) David wasonly two years, nine monthsolder than she. They grew up together, and went to play soccer and other games. PeoplesExhibit 149 is a photograph of David at soccer when they were living in Lakewood. He wasabouteight years-old at the time, and she was aroundsix. (15 RT 2054.) People’s Exhibit 146 is a photograph from birthday party David had at Chuck E. Cheese. (15 RT 2055.) In the photograph David is hugging his mom. She and David spent every birthday together. (Id.) People’s Exhibit 168 is a photo of Davidin his sophomore year in high school. (15 RT 2056.) He was around 16 years old then, and looked that way at the time of his death. (/d.) Vallerie haslost a large piece of herlife and a large part of her family as a result of the crimes. (15 RT 2056-2057.) Her grandmother, Bruni, wasreally the provider and the father figure for her and for the whole family. (15 RT 2057.) Mother’s Day and Christmasare not really celebrated now. (15 RT 2057-2058.) F. It Was Improperfor Clari to Include Her Opinion of Appellant in the Victim Impact Testimony. Oneaspect of the victim impact testimony violated a clearly established constitutional prohibition. In the courseof her testimony, Clari 228 expressed her opinion ofappellant in no uncertain terms. Q. Do youthink that if your brother and your mom were to die in a car accident like you had originally thought, do you think that would have had different affect [sic] on you? A. Oh, yeah, definitely. Q. Can youtell us why? A. Well, how would you feel if you brought the devil to your mom’s house andhedidit to her? (15 RT 2092 [emphasis added].) The United States Supreme Court has steadfastly maintained one restriction in the area of victim impact evidence. The witnesses are forbidden to express opinions about the crime, the defendant or the appropriate sentence. (See Payne v. Tennessee, supra, 501 U.S.at p. 830, fn. 2.) Summary opinionsofthis sort have been specifically held inadmissible as they are inconsistent with the reasoned decision-making required in capital cases. (See Booth v. Maryland, supra, at pp. 508-509 [the formal presentation of this information by the State can serve no other purpose thanto inflame the jury and divert it from deciding the case on the relevant evidence concerning the crime and the defendant”].) While largely 229 overruling Booth v. Maryland, the United States Supreme Court in Payne expressly retainedthis portion ofBooth’s holding. (Payne v. Tennessee, supra, at p. 830, fn.2.) The California Supreme Court has similarly remarked that the Eighth Amendmentandstate constitutional standards preclude victim impact testimonystating an opinion about the defendant’s character. (See People v. Robinson (2005) 37 Cal.4th 592, 656-657 [conc. opn. Moreno,J.].) Thetestimony in Booth v. Maryland wasactually less dramatic, and the stated opinion less harsh, than Clari’s characterization of appellant. There the victims daughter opinedthat “animals wouldn’t do this,” and that the defendants could not be rehabilitated. (Booth v. Maryland, supra,at p. 508.) Surely the jurors expected Clari to have some complicated and conflicted feelings about appellant. She could bejustifiably angry at appellant for the shootings, and it would be only normalfor her to harbor some resentment over events occurring in their fourteen year relationship. However, the jurors might also reasonably expect Clari to have some positive feelings about him as well. Appellant was, after all, Clari’s first and only boyfriend, her husband, andthe father of her two children. She knew appellant better than anyoneelse, and obviously had seen positive qualities in him to have stayed in such a tumultuousrelationship. It was, 230 then, especially damning forherto call him “the devil.” The United States Supreme Court in Payne v. Tennessee clearly held that victim impact witnesses may not express opinionsabout the crime, the defendant or the appropriate sentence. (Payne v. Tennessee, supra, at p. 830, fn.2.) these types of commentsare forbidden understate law and federal constitutional standards. (See Payne v. Tennessee, supra, 501 U.S. at p. 830, fn. 2; see also People v. Robinson, supra, 37 Cal.4th at pp. 656- 657 (conc. opn. Moreno,J.).) G. It Was Improper and Highly Prejudicial to Ask Witnesses to Speculate about What Their Responses Would Have Been If the Victims Had Died underDifferent Circumstances. The prosecutor asked the victim impact witnesses to describe how they wouldfeel if the victims deaths had been caused by accident or illness. This aspect of the testimony was entirely speculative andirrelevant. It was also highly prejudicial. The questioning in this area provoked considerable emotional reactions on the part of the witnesses and was sure to have had a similar effect on the jurors. Nearing the endof Clari’s testimony, the prosecutor posedthe following line of questions. Q. Doyouthink that if your brother and your mom were 231 to die in a car accidentlike you had originally thought, do you think that would have had a different affect [sic] on you? Oh, yeah, definitely. Can youtell us why? Well, how would you feel if you brought the devil to your mom’s house andhedidit to her? Are youtelling us that you’re feeling like you’re responsible for this? V’m— I’m-—I’m telling you, I’m old enough to know that I’m not responsible, that I couldn’t have stopped it, but I still feel some guilt because I brought him to the house. I introduced him to the family. If it wasn’t for that — my momtreated him like a son because of me. (15 RT 2092.) The prosecutor persisted with a similar line of questioning with Bruni’s mother, Celena Rodriguez. Q. A. Haveyoulost any other children besides Bruni? I had another child, but he — the day he was born he died, so still born [sic]. Any other children? It was a boy. 232 Q. Have youlost any other children besides the boy that wasstill born [sic]? A. I lost a daughter about a month ago. She was the twin sister of one ofmy other daughters. Q. Howdid youfirst learn about Bruni’s death? A. I found out how Bruni died, and they didn’t call me directly. They called one ofmy daughters in Puerto Rico. In Puerto Rico. ae 2K ok Q. Andare you aware of the manner of Bruni’s death? A. I found out through the daughterthat had to go and identify the bodies. Q. Can youtell us if the death of Bruni being taken at the hands of another impacted you differently than losing a child in a different way? A. Well, I don’t think so. I think death is the same, but — well, she didn’t deserveto die in that manner. (14 RT 1932-1933.) Atthis point the witness became so emotionalthat the prosecutorasked if she neededto take a break before continuing her testimony. (14 RT 1933.) Lupe Quiles was asked to compare Bruni’s death the recent loss of 233 another sister following a longillness. Lupe’s response addedfurther prejudice to her already highly emotional testimony. Q. Has the impact of Bruni’s death on you, because [of] the way in whichshedied, hasthis been different than losing your other sister, Lydia’s twin? Yeah, you see, when you have — mysister [Lydia’s twin] wassick. a8 Kk And you expect her — you, you know,to die. When you have relative that — somebodythat hadn’t been sick and you expect that personto die, it doesn’t affect [sic] you that much. If you havea sisterthat is healthy trying to get her life together — she boughta beautiful house, Bruni. And, you know,she was so happy with this brand new house. She had neverhad a houselike this before. You know, with her hard work and she got this, and then taken away from this earth is just something that affects them so much. Notonly me, but the rest of the family because we didn’t expect her — she was only 50 years old. David was only 16. A youngboy,full of ambition. He wanted to study. He’s not like Richie. My sister was so proudofthat boy. He wasso neat, so clean, you know,that she said this is — you know, from mythree kids, this is the one that’s going to be — you know,be somethinginlife. Andtaken away from this earth that way,it just impacts the whole family. It’s just — it’s not the same like whenBombo- we call her Bombo Maria. Clari died. It’s sad, but she die. We know that she needed to go rest. But Bruni, she wasfull of health and ambition. She was just happy. A happy person. But, you know,I don’t understand why this person haveto 234 take her away. And I couldn’t go away. (14 RT 1953-1954.) To the extent that this testimony provided any new information about the victims as individuals, its probative value was far out weighed by the prejudicial effect. Hearing the witnesses speculate and compare levels of grief wasnothelpful for the task at hand: deciding whether appellant wasto live or die. The opinions ofthese witnesses did notresult solely in response to the capital crime, and were a significant contribution to an already inflammatory body of victim impact evidence. (Compare Young v. State (Okla. 1999) 992 P.2d 332, 341-342 [inclusion in otherwise “succinct” victim impact statement of information that the aunt of the two victims had a fatal heart attack upon hearing of their bludgeoning deathsdid notviolate due process where defendant had opportunity to cross-examine the presenter and did not object to the victim impact statementattrial.]; and Copeland vy. State (2001) 343 Ark. 327, 334 [37 S.W.3d 567, 572] [defendant’s failure to object waived claim based onportion ofthe victim impact statementstating that the victim’s mother “gave up” and succumbed to diabetes following the murder].) 235 H. The Evidence and Testimony Relating the Victims Life Stories, Memories of Them as Children and at Family Holidays WasIrrelevant and Highly Prejudicial. Thejurors in this case received evidence and testimony about the victims’ background dating back nearly 60 years before trial. Mrs. Rodriguez testified about Bruni as a baby and as a younggirl growing up in Puerto Rico. She accompanied hertestimony with some of Bruni’s baby pictures; also depicting the family home and Bruni’s father, Mrs. Rodriguez’s late husband. (See 14 RT 1926-1932; People’s Exhs. 151, 152, 155.) David Montanez’slife was the subject of similar evidence and testimony, mainly from Clari and supplemented by Vallerie. (See 15 RT 2086-2091.) This evidence wasfar too detailed and extensive and its admission requires reversal of appellant’s sentence. Nothing in the United States Supreme Court’s decision in Paynev. Tennessee suggests that the victim’s personalhistory is relevant. “A ‘glimpse’ into the victim’s life and backgroundis not an invitation to an instant replay.” (Salazar v. State (Tex.Crim.App. 2002) 90 S.W.3d 330, 336.) In Conover v. State (1997) 933 P.2d 904, the Oklahoma Court of Criminal Appeals explained the lack of relevance and inherent prejudice of life history information: Comments aboutthe victim as a baby, his growing up and his 236 parents hopes for his future in no way provide insight into the contemporaneousand prospective circumstances surrounding his death; nor do they show how the circumstances surrounding his death have financially, emotionally, psychologically, and physically impacted a memberofthe victim’s family. These types of statements address only the emotional impact of the victim’s death. The moreajury is exposed to the emotional aspects of a victim’s death, the less likely their verdict will be a “reasoned moral response” to the question whether a defendant deservesto die; and the greater the risk the defendant will be deprived ofDue Process. (Id at p. 921, quoting California v. Brown (1987) 479 U.S. 538, 545.) Another Oklahomacasenotes the especially inflammatory effect produced whenlife history information is combined with testimony about the victim’s exceptional character. In Cargle v. State (1995) 909 P.2d 806, the Oklahoma Court held that the trial court erred by admitting this type of evidence. The testimony in Cargle covered only twelve transcript pages, far less than the victim impact testimony presented here. ” In Cargle a single victim impact witness (the victim’s sister) read a prepared statement for the jury. The Oklahoma Court’s opinion characterizes the statement as 79 The witness’ entire testimony in Cargle covered approximately 12 transcript pages. The testimony of the four witnesses in this case comprised approximately 43 transcript pagesin the trial record. (See 14 RT 1926-1934 testimony of Celena Rodriguez]; 14 RT 1934-1954 [testimony of Lupe Quiles]; 15 RT 2053-2058 [testimony of Vallerie Cage]; 15 RT 2086- 2096].) 237 _ “detailing the life [of the victim] from childhoodto his death.” (/dat p. 824.) The sister related a number of anecdotes demonstrating her brother’s virtues including self-reliance, kindness and generosity, essentially “eulogizing him as a good kid and adult.” (Cargle, supra, at pp. 824-825, fn. 12.) Evidence of an adult victim’s childhoodis clearly irrelevant andis widely regarded asespecially prejudicial. (Conover v. State, supra, 933 P.2d 904, 921; Salazar v. State, supra, 90 8.W.3d 330.) The testimony about Bruni and David as young children was inappropriate. Bruni was approximately fifty-one years old at the time of her death. (See 14RT 1926.) David was sixteen years old, and while his childhood wasless remote it was also unrelated to any circumstances “materially, morally or logically surround{ing] the crime.” (People v. Edwards, supra, 54 Cal.3dat pp. 835-836.) In Salazar v. State (a case the California Supreme Court recently called an “extreme example of such a dueprocessinfirmity”) 8° the defendant’s sentence was reversed *' based on the admission of emotionally 80 People v. Robinson, supra, 37 Cal.4th 592, 651. 81 The defendant in Salazar was 16 years old when helped an adult co- defendantto kill the victim after a dispute arose in connection with a drug deal. Although charged with capital murder andtried as an adult, the (continued...) 238 charged victim characterandlife history evidence. Jurors in Salazar saw a 17-minute video montage of approximately 140 still photographs of the 20 year-old victim. The photographs (roughly half ofwhich were taken when he was a youngchild) showed the victim in a number of charming and sentimental poses, and the videotaped montage was accompanied by a musical soundtrack. (/d at p. 333.) The Texas Court of Criminal Appeals observedthat “the punishmentphase of a criminaltrial is not a memorial service for the victim. What may be entirely appropriate eulogies to celebrate the life and accomplishments of a unique individualare not necessarily admissible in a criminaltrial.” (/d, at pp. 335-336.) 1. Lupe Quiles’s Testimony Was Cumulative and Inflammatory. Lupe Quiles gave a detailed and dramatic description ofhow she learned of Bruni’s and David’s deaths. When she received the news she becamesoill and emotionally overcomethat she fainted. Q. How did youfirst learn of Bruni’s death? 81. continued) defendant was found guilty of a lesser included, non-capital, murder charge. (Salazar, supra, at p. 332 fn.2.) The Salazar court notedthat, according to Texas law,“victim impact evidence may be admissible at the punishment stage of a [non-capital] criminaltrial when that evidence has some bearing on the defendant’s guilt.” (Jd, at p. 335, citing Mosley v. State, supra, 983 S.W.2d 249, 261-262. See also id at p. 335, fn.5, and casescited therein].) 239 A. Umm,I was — um, ready to go to work.I — all morning I heard the telephone ringing back and forth, you know, somebody calling my husband. Butall the time my husband — we work nights. Andthe telephone keep ringing. And my husband don’t let me answer the phone. Usually I answer the phone, most ofthe time, but this time he kept talking in the phone. Andhe didn’t want to tell me nothing, I guess. I didn’t know. I think something’s wrong, but he don’t wantto tell me. (14 RT 1938.) Lupe continued to describe the multiple telephone calls and confusion of the day. She the reached the part in her narrative whereshe learned that Bruni was involved. Then after that, another friend called. Andthis was Eddie. And he called me and they tell me — “Listen.” I say “Listen. Tell me what’s going on. I heard the phoneall day ringing and nobody wantto tell me what’s going on.” At that point he told me that Bruni had — had gotinto a car accident with David. That they’re okay. Hesay,“They’re okay. They’re just in the hospital.” Andthen, you know,I said, “Well, what hospital?” I worry about that. But he didn’ttell me. Hesaysyoustill — she’s okay. She’s just in the hospital with David.” And alittle while after that, the telephone keep ringing andringing,talking to my husband, but my husbandalready had to go to the store to get something for me because he know I would need something, you know,for my — I’m a very nervous person. 240 Andatthat point, Lydia, my sister that live here in California, she called. She think at this point I already know about Bruni. So she called me and she called me crying so hard. AndI said, “Well, why are you crying so hard?” She’s okay. She’s just in the hospital.” And Lydiasaid, “No, Lupe. She is not okay. She’s dead.” She told me that. Andthat — that nothing else because I fell on the floor. Andat that point my husband walked inside the door. He grabbed the phone and talked to Lydia. And Lydia keep saying, “I’m sorry. I’m sorry. I didn’t knowthat she didn’t know.” At that point, I just went — when my husband wastalking to her, I just was-- got ready to go to work. And I don’t know. My mind was blank. I jumped in my car. Andthat car took me to my job, which is far. And I just went to my job shaking. And I just started screaming and yelling over there. And then a friend of mine bring me back home. (14 RT 1939-1940.) Lupenextrelated how she had flown to Los Angeles and met Clari at the airport. (14 RT 1940-1942.) She and Clari drove to Bruni’s house together. Lupe’s description of the crime scene andits effect on her was dramatic and disturbing. Q. And when you got to Bruni’s house, did it impact you what had happenedthere? A. Oh, yes, very much so. When I opened 241 that door, my mom — see she’s — when I openedthat door and I saw that blood everywhere, there were pieces of brain all over, pieces of brain everywhere, blood everywhere, on the wall, ceiling, in the bathroom,at the door, on the floor. There was blood — blood, pieces of tissue, brain all over. Did youalso go upstairs or — Yeah. I went to David’s room and I saw the same — the same scene even worse in there too, in David’s room. You could see blood everywhere, and on thefloor. Andthen the stereo system that he always cared about, everything. Everywhere. I saw the hole in the — in the door. I saw that too. Everything. And did you leave after you saw — No. I just — we wentto the store with my brother-in-law, and Tito [Lupe’s son] wasthere too. ae kK We went and bring some bleach. I don’t know how many bottles of bleaches [sic] we buy. Wedecided to clean that mess that — that was in that house. And we - - you know, so many. We — we wanted to walk inside now without stepping on mysister’s blood. 242 Anddid you actually clean? Wecleaned as much as we could. We couldn’t clean all that mess, but we rubbed and wethrew bleach and water and sweepthe floor. And the hardest part was sweeping the floor and sweeping her bones. You know, because that was her face there and — (14 RT 1941-1942.) At this juncture, the witness was becoming so distraught that the court intervened and announceda recess. (14 RT 1942.) Lupe Quiles resumed hertestimony on this subject following the recess. Q. After you and Lydia finished cleaning, what do you do next? As I was sweeping the floor and — you know, sweepingall the bones and everything, I sweep it out the door. I openedthe door to clean. I saw this piece of bonethat I thought, you know — maybeI think it’s her nose. And I don’t wantto get rid of that, throw it on the floor. AndI keep that piece of bone because I’m — I didn’t even tell nobody, not even my family about this. Now they know that this piece of bone I still had at my house, I think, somewhere so my husband won’t find it, hid somewhere becauseI think I had a piece of her with me. I had this piece. I think is her nose. Because she had no face left. And there was boneall over. And Ifeel so sad sweeping that floor and sweeping bone from her to the ground. So this —1 243 noticed the big one. I just took it with me and I hideit. Q. Andyoustill have that? A. I still have that piece of bone. And I had to hide it so nobody know — mykids, nobody, my husband knowsI haveit. (14 RT 1944.) The record indicates that Mrs. Quiles became emotional during this portion ofher testimony. Given the subject matter and the witness’s apparent distress, it is highly likely that some ofthe jurors also reacted with emotion. The California Supreme Court has repeatedly held that emotional testimony is not necessarily inflammatory. (See People v. Verdugo (2010) 50 Cal.4th 263 [no error despite the victim’s mother having cried while testifying]; People v. Jurado, supra, 38 Cal.4th at pp. 132-134 [no error although testimony from multiple family members caused somejurors to cry].) In appellant’s case, however, the trial court did not monitor and record its observations (People v. Brady, supra, pp. 575-576; People v. Prince (2005) 40 Cal.4th 1179, 1289-1291.) Unlike other courts handling emotional testimony, the court did not caution the jury about the need to remain objective despite the influence of emotional testimony. (Compare People v. Booker, supra, p. 33, fn. 29 [after a recess following some very 244 emotional victim impact testimony, the trial court instructed the jury, “You can’t probably help notice that someofthe testimony will affect people in the audience andit’s understandable, and you maysee people that are teary- eyed, and they probably can’t help it. Again, the decision can”t be based uponthe reaction ofpeople in the audience.It has to be based upon the evidence presented in the witness stand.”].) J. The Trial Court Erred by Allowing Other Witnesses to Testify About the Impact of the Crimes on Richie Burgos. . Bruni’s mildly retarded son, Richie Burgos,testified in the guilt phaseoftrial. (See 6 RT 862-871.) Although hedid nottestify in the penalty phase, Clari andtheir aunt, Lupe Quiles,testified aboutthe downwardspiral of Richie’s life in the years after the crimes. Lupe told the jurors about how dependent Richie had been on Bruni. Lupe identified photographs of Richie and Bruni when Richie was14 years old, and then just a few monthsbefore the crimes. (See 14 RT She wasthen asked about his functioning after her death. Q. So how hasthis actually impacted Richie, his mother’s death? Can you give us some examples of how he’s changed since his mother’s gone? A. Richie is very — in bad shape as of this moment. As I’m talking, he’s in a mental hospital for — you know, 245 he’s, he’s in the hospital in Tampa. And they wanted to put him in the hospital for six months. As a matter of fact, today they’re going to decideifhe’s going to be there for six monthsin this hospital or for life becausehe isreal, real, umm, mentally ill now since he found his mother dead andhis brother. Q. Does he makereferences to what he saw,that helps you knowthatthat’s what’s causing his mental problems? Defense counsel objected to the question on the groundsthatit asked for an expert opinion. The court overruled the objection,, but suggested that the prosecutor rephrasethe question slightly. (14 RT 1948-1949.) Q. Is there anything that Richie has said about what he’s seen that’s helping you say that this is what’s causing him to be now needingto go into a mental hospital? A. Well, right now he is so confused now. You know,he’s the one whofinds the bodies. And he hugged a mother without — without a face. Youknow,that he hugged. Even a person that isn’t in his condition, he would be so sick, you know, mentally. Imagine him after this happened. He’s having to get counseling. You know,the only person that talked to him is the family, but he hasn’t been able to go toa professional, you know, because if that happened to me — this affected me so much and I’m, you know,healthy. You know,old but healthy. ImagineRichie, that he was mentallyill already from, you know,birth, since he’s born. And nowhis motheris not here. And finding his motherandhislittle 246 brother dead, he’s very, very sick mentally. (14 RT 1948-1949.) Mrs. Quiles continued to describe behavior changes in Richie which she attributed to the crime. Richie has become aggressive and at times violent. He is unpredictable, and she and her husbandanticipate they will need to put him in a mental institution because they cannot control him. (14 RT 1949-1950.) Over further defense objection, * Clari also testified about Richie: Q. Haveyou had anything to do with Richie sincethis happened? oe 2K 2 OK Wheneverything first happened, Richie was living with my grandmother while we madeall our arrangements for funerals and whatnot. And then later he came to live with me. Richie — he’s hard to handle. He needsto be, like, in a group homeor professionally handled. And for a normalsituation it would be hard for him to handle. But with me going throughall the stuff that | was going through, and then on top of that Richie blames me for what happened to my mom and David. Hefeels like it’s — “You and your husbandkilled my mom and David,” is whathe says. So he was aggressive. And I 82 The prosecutor asked Clari about Richie in her redirect examination, following a brief cross-examination by defense counsel. Defense counsel objected that the subject was beyond the scope of Clari’s direct examination. The trial court overruled the objection. (15 RT 2094-2095.) 247 couldn’t — I couldn’t handle him. (15 RT 2094-2095.) Clari explained that she had to arrange for Richie to be cared for in a group home. (15 RT 2095.) The testimony describing Richie’s difficulties and the ongoing family problemscaused by hissituation was improperfor several reasons. First, neither witness was an expert qualified to give an opinion about the lasting effects of the crimes on Richie. The fact that Clari and Mrs. Quiles were close family members and Richie’s primary caretakers did not maketheir testimonyin this area any morereliable. Their testimonyas to the causes of Richie’s problems wassheer speculation and should not have been: permitted. (See People v. Brady, supra, at pp. 577-578 [although not prejudicial underthe facts of the case, improper speculation for victim’s sister testified that their mother “gave up on life” and died six monthsafter the murder], citing, People v. Carrington (2009) 47 Cal.4th 145, 197.) Defense counsel had no way to cross-examinethe subjects of this testimony and no meansto test the accuracy of the witnesses’ statements. The California Supreme Court has allowed family membersto testify about the crime’s impact on other membersofthe victim’s family. In People v. Panah (2005) 35 Cal.4th 395, the Court found no undue prejudice where two family members mentioned the crime’s impact on the victim’s brother. (People v. 248 Panah, supra, 35 Cal.4th 395.) More recently in People v. Russell, supra, 242 P.3d at p. 649, the Court relied on Panah to hold that the wivesand children of the victims could testify about the impact of the crimes on the family. These cases, however, are distinguishable. In contrast to the witnesses Panah and Russell, Richie Burgos did not testify in the penalty phase and was notavailable for defense cross- examination. The aforementioned cases differ from appellant’s in other respects. In Panah, jurors heard victim impacttestimony from the eight- year-old victim’s immediate family, both parents and her three older brothers. Two witnesses, the father and eldest brother, stated their suspicion that the victim’s 16-year-old brother had begun using drugs and alcohol because of her murder. (Panah, supra, 35 Cal.4th at p. 495.) The California Supreme Court foundthat the testimony had not been unduly prejudicial. The Court noted two circumstances: the brevity of the prejudicial testimony, and the fact that “the jury was specifically instructed that in assessing victim impact evidenceit could ‘consider only such harm as was directly caused by defendant’s act.” (Ibid.) * Neither of those circumstances were present here. 83 Although not discussed in connection with the California Supreme Court’s holding, the Panah opinion indicates that the 16-year-old brother who wasthe subject of the testimony did testify in the penalty phase. (See (continued...) 249 As demonstrated by the excerpts of record set forth above, the testimony by Clari and Lupe Quiles was more extensive and detailed and vastly more prejudicial. It was also cumulative, since both witnesses described the lasting effects to Richie. ** Finally, in contrast to Panah,the jury instructions in this case failed to ameliorate the prejudice. (See 13 CT 3601- 3609.) Unlike the jurors in Panah,the jurors in this case were free to consider these speculative harms withoutfirst finding a causal connection between the harms and the homicide. K. Conclusion. The penalty phase of a capital trial should be as free from extraneous emotion as possible. The victim impact evidence in appellant’s case was improper forall of the reasons discussed above. Reversal of appellant’s sentence is, therefore required. 83(...continued) People v. Panah, supra, at p. 490.) Defense counsel in Panah, therefore, had an opportunity to cross-examine the witness in contrast to appellant’s case where this was an impossibility. 84 The California Supreme Court has not indicated the amount of overlap in the victim impact testimony which will be permitted. (See People v. Booker, supra, at p. 34 [although two witnessestestified on the same topic the testimony was not “unduly cumulative,” where portions of one witness’s testimony was unique].) 250 XII. THE TRIAL COURT DENIED APPELLANT HIS CONSTITUTIONAL RIGHTS TO DUE PROCESS OF LAW ANDA FAIR AND RELIABLE PENALTY DETERMINATION BY REFUSING ALL DEFENSE REQUESTS FOR MODIFICATIONS TO THE STANDARD INSTRUCTIONS. A. Introduction and Overview. Defense counselfiled a Request for Special Instructions before closing arguments were held in the penalty phase. (13 CT 3595-3 598.) Through the Request, appellant asked for three modifications to CALJIC 8.88, the standard penalty phase concludinginstruction. CALJIC 8.88 provides in relevant part: It is now your duty to determine which of the two penalties, death or imprisonmentin the state prison forlife without possibility of parole, shall be imposed onthe defendant. After having heard all of the evidence, and after having heard and considered the arguments of counsel, youshall consider, take into account and be guided by the applicable factors of aggravating and mitigating circumstances upon which you have beeninstructed. An aggravating factor is any fact, condition or event attending the commission of a crime which increasesits severity or enormity, or addsto its injurious consequences which is above and beyondthe elements of the crimeitself. A mitigating circumstanceis any fact, condition or event which 251 does not constitute a justification or excuse for the crime in question, but may be considered as an extenuating circumstance in determining the appropriateness of the death penalty. The weighing of aggravating and mitigating circumstances does not mean a mere mechanical counting of factors on each side of an imaginary scale, or the arbitrary assignment of weights to any of them. Youarefree to assign whatever moral or sympathetic value you deem appropriate to each andall of the various factors you are permitted to consider. In weighing the various circumstances you determine under the relevant evidence which penalty is justified and appropriate by considering the totality of the aggravating circumstances with thetotality of the mitigating circumstances. To return a judgmentof death, each ofyou must be persuaded that the aggravating circumstancesare so substantial in comparison with the mitigating circumstances that it warrants death instead oflife without parole. (13 CT 3603-3604.) Appellant’s first request was for the following languageto be added to the instruction: In weighing the aggravating and mitigating factors, you are not merely to count numbers on either side. You are instructed, rather, to weigh and consider the factors. You may return a verdict of life imprisonment without possibility of parole even though you should find the presence ofone or more aggravating factors. (13 CT 3596.) Next, appellant requested that the term “totality” be removedfrom the instruction. (13 CT 3597.) Finally, appellant asked for 252 anotherbrief addition to CALJIC 8.88: “One mitigating circumstance may . be sufficient for you to return a verdict oflife imprisonment without possibility of parole.” (13 CT 3598.) Thetrial court refusedall three defense requests. (See 13 CT 3596-3598.) B. The Requested Modifications Were Appropriate and Necessary to Clarify the Law and to Guide the Jury’s Discretion. Thetrial court’s refusal to modify CALJIC 8.88 as requested was improper for several reasons. The alterations to CALJIC 8.88 which appellant proposed correctly stated the law. As the California Supreme Court has repeatedly held, one mitigating factor can outweigh any numberof aggravating circumstances. (People v. Hayes (1990) 52 Cal.3d 577, 642; People v. Visciotti (1992) 2 Cal.4th 1, 64; People v. Cooper (1991) 53 Cal.3d 771, 845.) Indeed,in People v. Duncan (1991) 53 Cal.3d 955, 979, the Court held that a jury has discretion to impose sentenceoflife without parole even if evidenceis presented in aggravation andthere is no evidence presentedin mitigation. The California Supreme Court has foundit to be properto instruct a jury that a single mitigating factor may outweighall of the aggravation. (See People v. Grant (1988) 45 Cal1.3d 829, 857,fn. 5.) Moreover, the Court has 253 held that instructions similar to the modified CALJIC 8.88 requested by appellant were usefulas they, “significantly reduced the risk ofjuror misapprehension.” (People v. Sanders, supra, 11 Cal.4th 475, 557; see also People v. Webb (1993) 6 Cal. 4th 494, 534 [instruction eliminated any possibility that the jury might not understandits sentencing discretion].) Thepossibility of such a risk should have compelledthe trial court in this case to instruct the jury in accordance with appellant’s request. In People v. Jones (1998) 17 Cal 4th 279, 314, this Court held that an instruction that “one mitigating circumstance may be sufficient to support a decision that death is not the proper penalty” was duplicative and, therefore, properly rejected. This conclusion was based onthe fact that the trial court in People v. Jones instructed the jury to “return a verdictof life imprisonment withoutpossibility of parole if it found that the aggravating factors did not substantially outweigh the mitigating factors, if it outweighed them at all.” (/d.) The instruction used in appellant’s caseis distinguishable, as it emphasized the “totality of the aggravating circumstances”and “the totality of the mitigating circumstances.” (13 CT 3603-3604 [CALJIC 8.88].) This emphasis on “totality” implies a quantitative judgment. The conceptofa single mitigating factorjustifying life without possibility of parole is not encompassed by such aninstruction. 254 The Eighth Amendmentstandard forreliability in a capital case requires sufficient procedural protection and “accurate sentencing information [as] an indispensable prerequisite to a reasoned determination of whether a defendantshall live or die.” (Simmons v. South Carolina (1994) 512 U.S. 154, 172 [conc. opn. of Souter, J.], citing Gregg v. Georgia, supra, 428 U.S. at p. 190.) The jury should fully understand the role of mitigating evidence andits importance in the sentencing process. Accordingly, instructions which clarify the sentencing process should be given upon a defendant’s request. (Simmons v. South Carolina, supra, 512 U.S.at p. 172.) It is not enoughfor the jury to be instructed that it can determine the appropriate verdict. Upon a defendant’s request, the jury should be informed that an appropriate verdict may be based upona single mitigating factor. Thetrial court’s refusal to give such an instruction in appellant’s case underminedthelikelihood that the jurors fully understood the process by which they were to determine the penalty or the overriding significance of mitigating evidence. Thetrial court’s error thus violated due process and failed to providethe “specific and detailed guidance” necessary to meet Eighth Amendmentstandards (Gregg v. Georgia, supra, at p. 189; Proffitt v. Florida (1976) 428 U.S. 242, 253; Woodson v. North Carolina, supra, 428° US.at p. 303.) 255 C. Reversal is Required. In appellant’s casethe trial court’s error cannot be deemed harmless. There was mitigating evidence concerning appellant’s diagnosis of schizophrenia, his brain abnormalities, and his long history of bizarre behavior in the form of suddenirrational violence. Given the normative decision inherent in the penalty deliberations, the presence of one mitigating factor may be enoughto warrant life without parole even if it is substantially outweighed by the aggravation. The law is clear that the jury may return a life verdict even if it finds that aggravation outweighs mitigation. (See People v. Johnson (1992) 3 Cal.4th 1183, 1250.) This Court cannot assume that a death verdict would have been imposed hadthe jury been instructed as appellant requested. The penalty verdict must be reversed. (Chapmanv. California, supra, at p. 24; People v. Robertson, supra, 33 Cal.3d at p. 54.) XIU. THE USE OF CALJIC NO.8.88 VIOLATED APPELLANT’S RIGHTS UNDERTHEFIFTH, SIXTH, EIGHTH AND FOURTEENTH AMENDMENTSTO THE UNITED STATES CONSTITUTION. A. Introduction and Overview. Thetrial court’s use of the standard version of CALJIC 8.88 violated appellant’s rights under the Fifth, Sixth, Eight and Fourteenth Amendments 256 to the United Stated Constitution and the corresponding sectionsofthe California Constitution. The instruction was vague and imprecise in thatit failed to accurately describe the weighing process the jury must apply in capital cases, and deprived appellant of the individualized consideration the Eighth Amendmentrequires. Further, the instruction contradicted the requirements of Penal Code section 190.3 by indicating that a death judgmentcouldbe returned if the aggravating circumstances were “substantial” in comparison to mitigating circumstances. The instruction wastherefore, improperly weighted toward death. In addition, the instruction effectively informed the jury that a single mitigating factor was not sufficient to prevent imposition of the death penalty. Moreover,the instruction’s definition of mitigating circumstances was defective and failed to inform the jury ofthe full scope of evidence which may be considered in mitigation. The instruction also mislead the jury by referring to “life without parole”rather than “life without the possibility of parole” and then failed to provide the jury with a definition of this technical, legal term. Because the infirmities of the instruction affected appellant’s substantial constitutional rights, reversal of the death judgmentis required.» 85 Appellant acknowledgesthat similar arguments have beenrejected by the Court recently as well as in the past. (See e.g., People v. Lee, supra, (continued...) 257 B. The Version of CALJIC 8.88 Given Here Improperly Reduced the Prosecution’s Burden of Proof below the Level Required by Penal Code Section 190.3. California Penal Code section 190.3 states that after considering aggravating and mitigating factors, the jury “shall impose” a sentence of confinementin state prison for a term of life without the possibility of parole if “the mitigating circumstances outweigh the aggravating circumstances.” (Pen. Code § 190.3.) © The United States Supreme Court hasheld thatthis mandatory language is consistent with the individualized consideration of the defendant’s circumstances required under the Eighth Amendment. (Boyde v. California (1990) 494 U.S. 370, 377.) 85(__ continued) 2011 WL 651850; People v. Coffman (2004) 34 Cal.4th 1, 124, Peoplev. Ochoa (1998) 19 Cal.4th 353, 457-458; People v. Duncan, supra, 53 Cal.3d at p. 978; People v. Berryman, supra, 6 Cal.4th 1048, 1099-1 100, overruled on other grounds in People v. Hill, supra, 17 Cal.4th at p. 820.) However, appellant respectfully submits that these cases were incorrectly decided for the reasons set forth herein and that the questions raised herein should therefore be reconsidered. In addition, appellant must presents these issues in order to preserve it for federal review. 86 Thestatute also states that if aggravating circumstances outweigh mitigating circumstances, the jury “shall impose” a sentence of death. However,this court has held that this formulation of the instruction improperly misinformedthe jury regardingits role and disallowedit. (People v. Brown (1985) 40 Cal.3d 512, 544, n.17.) 258 However, this mandatory languageis not included in CALJIC 8.88. Instead, the instruction informs the jury merely that the death penalty may be imposed if aggravating circumstancesare “so substantial” in comparison to mitigating circumstancesthat the death penalty is warranted. In People y. Duncan, this court held that this formulation was permissible because “[t]he instruction clearly stated that the death penalty could be imposedonly if the jury found that the aggravating circumstances outweighed mitigating(sic).” (People v. Duncan, supra, 53 Cal.3d at 978.) However, this is simply not so. The word “substantial” means only “of or having substance.” (Webster’s New World Dict. (3d College ed. 1989) p. 1336.) Although the wordcarries with it connotations “considerable,” “ample,” and “large” (ibid), it neither means nor suggests “outweigh.” Theinstruction therefore fails to conform to the requirements of Penal Code section 1903. Theinstruction by its terms would plainly permit the imposition of a death penalty whenever aggravating circumstances were merely “of substance” or “considerable,” even if they were outweighed by mitigating circumstances. By failing to conform to the specific mandate of Penal Code section 190.3, CALJIC 8.88 violates the Fourteenth Amendment. (Hicks v. Oklahoma, supra, at pp. 346- 347.) In addition, appellant submits that the instruction improperly reduced 259 the prosecution’s burden of proof below that required by the applicable statute. An instructional error which misdescribes the burden of proof, and thus, “vitiates ail the jury’s findings,” can never be showntobe harmless. (Sullivan v. Louisiana, supra, 508 U.S. 275, 281, emphasis in original.) - Appellant respectfully requests that this court reconsider this issue. C. The CALJIC 8.88 Instruction Incorrectly Described the Weighing Process Applicable to Aggravating and Mitigating Evidence Under California Law. A trial court has a sua sponte duty to correctly instruct the jury on the generalprinciples of law governingthe case beforeit. (People v. Hernandez (1988) 47 Cal.3d 315, 353; People v. Avalos (1984) 37 Cal.3d 216, 229.) A trial court’s instructions should be correctly phrased and not misleading. (People v. Forte (1988) 204 Cal.App.3d 1317, 1323.) Here, CALJIC 8.88 mislead the jury not only regarding the weighing process required by Californialaw, butalso in a numberofother respects. For example, the instruction was defective because it improperly suggested that a quantitative comparisonofthe “totality” of mitigating factors was required. The California Supreme Court hasrepeatedly indicated that one mitigating factor, standing alone, may besufficient to outweigh all other factors. (People v. Grant, supra, 45 Cal.3dat p. 857, fn. 5; People v. Hayes, supra, 52 Cal.3d at p. 642; People v. Cooper, supra, 53 Cal.3d at p. 845.) 260 The language of CALJIC 8.88 not only failed to communicate this important concept to the jury but also suggested that the jury was required to consider the “totality” of the mitigating circumstances and balance them againstthe “totality” of the aggravating circumstances. This was prejudicial because, in the absence of qualitative considerations, this quantitative formula could weighthe scales in favor of a judgment of death, thereby depriving appellant of the individualized consideration guaranteed him by the Eighth Amendment to the United States Constitution. (Stringer v. Black (1992) 503 U.S. 222, 231-232.) Further, although CALJIC 8.88 instructed the jury not to engage in “a mere mechanical counting of factors on each side of an imaginary scale or the arbitrary assignment of weights to any of them,”it is difficult to believe that the jury would have interpreted an instruction to consider “thetotality of the aggravating circumstances with the totality of the mitigating circumstances”as anything other than a specific direction to mechanically take the sum ofthese factors and weigh them against each other in the aggregate. The term “totality” plainly implies a quantitative weighing process rather than a qualitative analysis. In addition, as previously noted, the last sentence of CALJIC 8.88 quoted abovestates “[t]o return a judgment of death, each ofyou must be 261 persuaded that the ageravating circumstancesare so substantial in comparison with the mitigating circumstancesthat it warrants death instead of life without parole.” This language further implies a mechanical, quantitative weighing process and underminesthe conceptthat one mitigating factor can outweighall ofthe aggravating factors and warrant a sentence oflife without the possibility of parole. Moreover, CALJIC 8.88 is death oriented becauseit tells the jury what warrants death but fails to inform them what warrants life without the possibility of parole. The jury was nevertold that one mitigating factor can be deemedsufficient to outweighall the aggravating factors no matter how “substantial” those factors are. The instruction reinforces a notion of quantity and not quality of the factors involved. As previously stated, this Court has repeatedly indicated that one mitigating factor may be found sufficient to outweigh a numberof aggravating factors and permit the jury to return a judgmentoflife without parole, rather than death. (People v. Grant, supra, 45 Cal.3dat p. 857, fn. 5; People v. Hayes, supra, 52 Cal.3d at p. 642; People v. Cooper, supra, 53 Cal.3dat p. 845.) However, the misleading language if CALJIC 8.88 failed to effectively communicatethis rule to the jury in appellant’s case. The instruction wasalso defective in its description of mitigation. As 262 noted above, the instruction stated that “[a] mitigating circumstance is any fact, condition or event which as such does not constitute a justification or excuse for the crime in question, but may be considered as an extenuating circumstance in determining the appropriateness of the death penalty.” This definition of mitigation was insufficient to inform the jury of the full scope: of evidence that must be considered in determining the appropriate sentence and wasreasonably likely to be understoodasa limitation on mitigating evidence. The California Supreme Court’s assumption that “mitigating”is a commonly understood term necessitating no further definition is refuted by empirical evidence. The same empirical evidence indicates that one of the primary misconceptions harbored by jurors concerning mitigation is that it relates only to the circumstancesofthe crime. (See Haney & Lynch, Comprehending Life and Death Matters; A Preliminary Study of California’s Capital Penalty Instructions (1994) 18 Law & Human Behavior A11, 422-424; Haneyet al, Deciding to Take a Life: Capital Juries, Sentencing Instructions, and the Jurisprudence ofDeath (1994)J. Soc.Iss., vol. 50, No.2.) The definition of mitigation given in this case, with its focus limited to “the crime in question,” was thus substantially likely to have been understoodas limiting the jury’s consideration solely to the circumstances of 263 the crime, in violation of the state and federal Constitutions. Numerous authorities have noted the importance of mitigation evidence whichis wholly unrelated to the crime, (See e.g., Williams v. Taylor (2000) 529 US. 362, 398 [defendant’s childhood “filled with abuse and deprivation, or reality that he was ‘borderline mentally retarded’” may influence jury’s determination of moral culpability]; Lambright v. Stewart, supra, 241 F.3d at p. 1208 [evidence of mentaldisabilities or a tragic childhood can affect a sentencing determination even in the most savagecase.”]; on impact of mental retardation and otherfactors, see generally Garvey, Aggravation and Mitigation in Capital Cases; What do Jurors Think? 98 Columbia L.Rev. 1538.) Thetrial court’s failure to provide the jury with an adequate understandingofthis critical concept undermined the reliability of the ensuing death judgment, failed to properly channel the jury’s decision- making process, and effectively eliminated from consideration relevant mitigating evidence. (U.S. Const. Amends. V, VI, VIII, XIV; Hitchcockv. Dugger, supra, 481 U.S.at pp. 398-399; but see People v. Welch (1999) 20 Cal.4th 701, 722.) D. Reversal is Required. Reversal perse is mandatedifthe error necessarily rendered thetrial fundamentally unfair, if it aborted the basic trial process, or denied it 264 altogether (Rose v. Clark (1986) 478 U.S. 570, 577-578), thereby permitting a presumption ofprejudice. (Bank ofNova Scotia v. United States (1988) 487 U.S. 250.) Otherwise, the Chapmanstandard ofreview applies. (People v. Odle (1988) 45 Cal.3d 386, 414-415, 247.) Instructional error must be analyzedin termsofits potential impact on the actualtrial. (/d at p. 413.) It is fundamentalthat a “risk that the death penalty will be imposed in spite of factors which may call for a less severe penalty ... is unacceptable and incompatible with the commandsofthe Eighth and Fourteenth Amendments.” (Lockett v. Ohio, supra, 438 U.S.at p. 605.) The numerous errors in this instruction improperly impaired, to appellant’s disadvantage, the jury’s assessment as to whetherlife without possibility of parole or death wasthe proper verdict to reach in this case. It cannot be established beyond a reasonable doubt that theseerrors did not contribute to the judgment of death. (Chapmanv. California, supra, at p. 24.) It certainly cannot be established that these errors had “no effect” on the penalty verdict. (Caldwell v. Mississippi (1985) 472 U.S. 320, 341.) Accordingly, appellant’s sentence of death must be reversed. 265 XIV. THE TRIAL COURT FAILED TO ENSURE IMPARTIALITY AND PARITY BETWEEN CALJIC INSTRUCTIONS8.85 AND 8.87 REGARDING JURY NON-UNANIMITY, THUS SKEWING THE INSTRUCTIONS TOWARD A DEATH VERDICT AND VIOLATING APPELLANT’S EIGHTH AMENDMENT RIGHT TO A FAIR AND RELIABLE PENALTY DETERMINATION. “There should be absolute impartiality as between the People and the defendantin the matter of instructions...” (People v. Moore, supra, 43 Cal.2d at pp. 526-527; accord Reagan v. United States, supra, 157 U.S.301, 310.) Lack ofparity skews the proceeding toward death thus promoting the random andarbitrary imposition of death in violation of appellant’s constitutional rights to be free from cruel and unusual punishment, to due process of law, and to equal protection of the law. (U.S. Const. Amends. VIII, XIV; Sochor v. Florida (1992) 504 U.S. 527; Gregg v. Georgia, supra, 428 U.S. 153.) The jurors in appellant’s case were instructed with CALJIC 8.85, whichsets forth the factors the jury may consider in weighing aggravating and mitigating evidence to determinethe penalty. *’ (13 CT 3601-3602.) CALJIC 8.87, given in modified form in the prosecution’s requested special 87 This instruction mirrors the relevant portion of Penal Code section 190.3. 266 instruction No. 14, instructed the jury on the burden of proof required for “other criminal activity” evidence. (13 CT 3603.) Paragraph two ofthis instruction specifically told the jury that“it is not necessary forall jurors to agree” as to other unadjudicated criminal activity. (/d.) The instruction states the law as interpreted by the California Supreme Court, as doesthe comparable rule regarding mitigation. (See, e.g., People v. Foster, supra, 242 P.3d at pp. 157-158; People v. Breaux (1991) 1 Cal.4th 281, 314.) However, because Breaux precludes the defendant from obtaining a specific non-unanimity instruction as to mitigation, the prosecution should not be permitted to obtain such an instruction in the specific context of other crimes aggravation. Thisis particularly so because the United States Supreme Court has not resolved the issue of whether juror unanimity is required for unadjudicated crimes. It is the trial court’s duty to see that jurors are adequately informed on the law. (People v. Shoals (1992) 8 Cal.App.4th 475, 490-491.) Thetrial court also has a duty to refrain from instructing on principles of law that havethe effect of confusing the jury. (People v. Satchell (1971) 6 Cal.3d 28, 33 fn. 10.) Thus, the languagethat “it is not necessary forall jurors to 267 agree”should be deleted from CALJIC 8.87 sua sponte 88 or, alternatively, the same non-unanimity language should be added tothe instructions defining the burden ofproof regarding mitigation evidence (CALJIC Nos. 8.85, 8.88) so that the instructions are symmetrical. XV. THE FAILURE TO INSTRUCT THE JURY ON THE PRESUMPTION OFLIFE VIOLATED THEFIFTH, EIGHTH, AND FOURTEENTH AMENDMENTSTO THE UNITED STATES CONSTITUTION. In non-capital cases, the presumption of innocenceacts as a core constitutional and adjudicative value to protect the accusedandis basic componentofa fairtrial. (Estelle v. Williams (1976) 425 U.S. 501, 503.) Paradoxically, at the penalty phase of a capital trial, where the stakes are life or death, the jury is not instructed as to the presumptionoflife, the penalty phasecorrelate of the presumption of innocence. (Note, The Presumption of Life; A Starting Pointfor a Due Process Analysis ofCapital Sentencing 88 Although appellant did not object, the erroris still preserved for appeal since the error consists of a breachofthe trial court’s fundamental instructional duty. (See People v. Hernandez, supra, 47 Cal.3dat p. 353; People v. Harris (1981) 28 Cal.3d 935, 956; People v. Anderson (1994) 26 Cal.App.4th 1241, 1249 [if a defendant’s substantial rights will be affected by the asserted instructional error, the court may consider the merits and reverse the conviction if error indeed occurred, even though the defendant failed to object in the trial court.] 268 (1984) 94 Yale. L.J. 352; cf. Delo v. Lashley (1993) 507 U.S. 272.) Appellant submits that the court’s failure to instruct that the presumption favorslife rather than death violated appellant’s right to due process of law underthe Fifth and Fourteenth Amendments, his Eighth Amendmentrights to a reliable determination of the penalty and to be free of cruel and unusual punishment, andhis right to equal protection under the Fourteenth Amendment. The California Supreme Court has considered, and rejected, similar arguments concerning the necessity of a “presumption oflife” instruction. (See, e.g., People v. Howard (2010) 51 Cal.4th 15, 118 Cal.Rptr.3d 678, 700; People v. Jennings, supra, 50 Cal.4th at p. 689; People v. Arias, supra, 13 Cal.4th 92.) Appellant respectfully asks this Court to reconsider. The United States Supreme Court hasconsistently held that as longas a state’s law properly limits death eligibility, “the state may otherwise structure the penalty determination asit sees fit.” (People v. Arias, supra, at p. 190; Tuilaepav. California (1994) 512 U.S. 967, 975-976, 978.) California’s death penalty scheme, however, does not properly limit death eligibility. Amongotherserious defects, the current law gives prosecutors unbridled discretion to seek the death penalty, fails to narrow the class of death- eligible murderers, fails to require written findings regarding aggravating 269 factors, andfails to require proportionality review. 8° Accordingly, appellant submits that a presumption oflife instruction is constitutionally required at the penalty phase, and in its absence, reversal of the penalty judgmentis required. XVI. APPELLANT’S CONVICTIONS AND SENTENCE MUST BE REVERSED DUE THE CUMULATIVE EFFECTS OF THE ERRORSIN THIS TRIAL. Appellant has demonstrated that a numberoferrors occurred in the course ofthis trial. For the reasons discusses above, these errors were highly prejudicial and each wouldbe sufficient to require reversal. Evenifthis Court disagrees, and finds that only some claimsarevalid or finds some claims valid but not sufficiently prejudicial viewed in isolation, reversal is required due to the cumulative effects. (See People v. Holt, supra, 37 Cal.3d at p. 459.) The jury consideredthetrial as a whole. It wasinstructedat the close 89 Appellant is aware that the California Supreme Court has specifically rejected each ofthese contentions. (See, e.g., People v. Foster, supra, 117 Cal.Rptr.3d at p. 722 [neither intercase proportionality review nor written findings required]; People v. Brady, supra, at p. 345 [prosecutorial discretion with respect to charging decisionsin capital cases].) 270 of the penalty phaseto consider the facts from the evidence received during the entire trial. (13 CT 3601 [CALJIC 8.84.1].) To satisfy due process and the Eighth Amendmentthe accumulation of errors must be viewedin the context of the entire trial as well. “A balkanized, issue-by-issue harmless error review is far less effective than analyzing the overall effect of errors in the context of the evidence introducedat trial against the defendant.” (United States v. Frederick (9th Cir. 1996) 78 F.3d 1370, 1381.) “The Supreme Court has clearly established that the combined effect of multiple trial errors may giverise to a due process violationif it renders a trial fundamentally unfair, even where each error considered individually would not require reversal.” (Parle v. Runnels (9th Cir. 2007) 505 F.3d 922, 928. See also Chambers v. Mississippi, supra, 410 U.S. at pp. 289-290,n.3, 303-303; Killian v. Poole (9th Cir. 2002) 282 F.3d 1204, 1210; Cooperv. Fitzharris (9th Cir. 1978) 586 F.2d 1325, 1333 [“prejudice may result from the cumulative impact of multiple deficiencies”].) The California Supreme Court has recognizedthat reversalis required when the whole is greater than the sum ofits parts. (See People v. Sturm (2006) 37 Cal. 4th 1218,1244 [reversing due to cumulative misconduct]; People v. Hill, supra, 17 Cal.4th 800, 844-847 [reversing for multiple cumulative errors].) Appellant has identified numerous errors that occurred 271 during both the guilt and penalty phasesofthis trial. Each of these errors, individually and cumulatively, deprived appellant of his constitutional rights to a fair trial before an unbiased jury, the right to confront the witnesses against him, the right to present a meaningful defense, and the rightto fair and reliable determinations of guilt and ofthe penalty, guaranteed under the Fifth, Sixth, Eighth, and Fourteenth Amendmentsto the United States Constitution. Further, each error, by itself and in combination with others, is sufficiently prejudicial to require reversal of appellant’s convictions and death sentence. XVII. THE DEATH PENALTYIS DISPROPORTIONATE TO APPELLANT’S INDIVIDUAL CULPABILITY. Because the death penalty is disproportionate to appellant’s culpability, its imposition in this case would violate the state and federal constitutions. While the California Supreme Court has previously held that proportionality analysis is not required(see,e.g., People v. Foster, supra, at p. 722; People v. Carpenter (1999) 21 Cal.4th 1016, 1064), the Court does have the inherent discretion to conduct an intra-case proportionality analysis in the interests ofjustice. (See People v. Lang (1989) 49 Cal.3d 991,1043.) Appellant respectfully urges that the Court exercise its discretion in this 272 case. In addition, appellant urges reconsideration of the California Supreme Court’s decisions holding that proportionality analysis is not required in capital cases in view ofthe analysis set forth below.” “The cruel and unusual punishmentclause of the Eighth Amendmentprohibits the imposition of a penalty that is disproportionate to the defendant’s personal responsibility and moralguilt.” (People v. Padilla (1995) 11 Cal.4th 891, 962.) In Enmundv. Florida (1982) 458 U.S. 782, the United States Supreme Court stated “weinsist on ‘individualized consideration as a constitutional requirement in imposing the death sentence,’ ... which means that we must focus on ‘relevant facets of the character and record ofthe individual offender.’” (Enmundv. Florida, supra, 458 U.S.at p. 798, citing and quoting, Lockett v. Ohio, supra, 438 US.at p. 605; Woodson v. North Carolina, supra, 428 U.S.at p. 304.) This Court has both constitutional and statutory authorization to review the sentence. Thetrial court’s ruling on the automatic motion to modify the sentence pursuant to Penal Codesection 190.4 “is subject to independent review:it resolves a mixed question that implicates constitutional rights and hence must be deemed predominantly legal.” (People v. Marshall (1990) 50 90 Appellant also raises this argument here in order to preserveit for federal review. 273 Cal.3d-907, 938.) The motion should have been granted in appellant’s case, andthe death sentence should have been modifiedto life without possibility ofparole following the Penal Code section 190.4(e) hearing. Apart from the discretion contemplated by the statute, this Court has an obligation to give . the sentence meaningful appellate review. The Eighth Amendmentand the DueProcess Clause grant appellant the right to meaningful appellate review to assure that the death penalty is not imposedarbitrarily or irrationally. (Parker v. Dugger (1991) 498 U.S. 308, 321.) “It cannot be gainsaid that meaningful appellate review requires that the appellate court consider the defendant’s actual record. ‘What is important... is an individualized determination on the basis of the character of the individual and the circumstancesofthe crime.’” (Parker v. Dugger, supra, 498 U.S.at p. 321, quoting Zant v. Stephens, supra, 462 U.S.at p. 879.) In analyzing a sentence to determine whetherit is disproportionate underthe circumstancesofthe individual case, the Court should examine “the nature of the offense and/or the offender, with particular regard to the degree of danger both present to society.” (People v. Dillon (1983) 34 Cal.3d 441, 479, citing In re Lynch (1972) 8 Cal.3d 410, 425-429.) With respectto the nature of the offense, the court should consider both the severity of the crime in the abstract and the facts of the crime in question. 274 (People v. Dillon, supra, 34 Cal.3d, at p. 479.) With respect to the nature of the offender, the court must ask “whether the punishmentis grossly disproportionate to the defendant’s individual culpability as shown by such factors as his age, prior criminality, personal characteristics, and state of mind.” This requirement follows from the principle that “a punishment which is not disproportionate in the abstract is nevertheless constitutionally impermissibleif it is disproportionate to the defendant’s individual culpability.” (People v. Dillon, supra, 34 Cal.3d at p. 480.) This requirementis also mandated by the federal Constitution, because the “individualized considerations [are] a constitutional requirementin imposing the death sentence, which meansthat the Court must focus on relevant factors of the character and record ofthe individual offender.” (Enmundv. Florida, supra, at p. 799.) In People v. Dillon, a 17-year-old boy was convicted of murder during an incidentin which he andsix other youths had conducted a well- planned invasion ofa marijuana plantation they intended to rob. The defendant fired ninerifle shots into the victim, who was merely attempting to protect his property. There was no dispute that the crime of which he was convicted was reprehensible. (People v. Dillon, supra, 34 Cal.3d at p. 483.) Nevertheless, this Court reduced Dillon’s conviction to second degree 275 murder, primarily because of his individual background. The court focused primarily on the defendant’s youth, the fact that he lackedthe intellectual and emotional maturity of an average 17-year-old, his lack of a prior record, and the petty chastisements given to the other six youths involved in the incident. (/d at pp. 483-488.) Death is a disproportionate punishment for appellant. The deaths of twovictims in this case were tragic. These events brought suffering to the victims and to surviving family. Appellant, too, is a memberofthat family and he will have to live with the consequencesofhis actions for the remainderofhis life. That does not, however, mean that appellantis deserving of death. The record showsthat appellant had severe neuropsychological impairments. (See 13 RT 1791-1793; 1802-1806 [testimony of Dr. Wu].) Appellant had little education, and left home before he wasfifteen years old. (See 15 RT 2114-2122 [testimony of Emly Farmer].) Although he was poorly equipped to deal with the stressors of parenthood and familylife, appellant was expected to function as a husband and father by the time he wassixteen. The evidence established that he was impulsive, and at timesirrational and even violent. However, nothing in his record orin thetrial testimony demonstrated that he was an unfeeling, calculated killer. On the night of the homicides appellant had been drinking 276 heavily and using illicit drugs. (See 7 RT 971-974 [testimony of Jason Christopher Tipton]; 7 RT 1001-1002 [testimony of Kevin Neal].) Appellant’s actions that night arose from an angry, violent impulse and not a deliberate plan. The evidence as a whole compels the conclusion that death is an inappropriate and disproportionate penalty for the tragic events that befell appellant and his family, “The rule of evolving standards of decency with specific marks on the wayto full progress and mature judgment means that resort to the penalty must be reserved for the worst of crimes and limited in its instances of application. In most casesjustice is not better served by terminating the life of the perpetrator rather than confining him and preservingthe possibility that he and the system will find ways to allow him to understand the enormity of his offense.” (Kennedy v. Louisiana (2008) 128 S.Ct. 2641.) Death under the circumstancesofthis case would violate the Eighth Amendmentand the California Constitution, Art. I, Section 17. Forall of the foregoing reasons, appellant respectfully submits that the death sentence — imposed is disproportionate as applied to him and shouldbesetaside. 277 LEGAL ARGUMENTS CONCERNING CAPITAL PUNISHMENT XVIII. CALIFORNIA’S DEATH PENALTY STATUTE, AS INTERPRETED BY THIS COURT AND APPLIED AT APPELLANT’S TRIAL, VIOLATES THE UNITED STATES CONSTITUTION AND INTERNATIONAL LAW. Manyfeatures of California’s capital sentencing scheme,aloneorin combination with each other, violate the United States Constitution. Because challenges to most ofthese features have been rejected by the California Supreme Court, appellant presents these arguments in an abbreviated fashion sufficient to alert the Court to the nature of each claim andits federal constitutional grounds, and to provide a basis for this Court’s reconsideration of each claim in the context of the state’s entire death penalty system. In People v. Schmeck (2005) 37 Cal.4th 240, 303-304, the California Supreme Court held that what it considered to be “routine” challengesto California’s capital punishment scheme will be deemed “fairly presented” for purposes of federal review “even when the defendant does no more than (i) identify the claim in the contextofthe facts, (ii) note that we previously haverejected the sameor a similar claim in a prior decision, and(iii) ask us 278 to reconsider that decision.” (People v. Schmeck, supra, 37 Cal.4th at pp. 303-304.) In light of this directive, appellant briefly presents the following challengesto urge their reconsideration and to preservethese claimsfor federal review. Should this Court decide to reconsider any of these claims, appellant requests the opportunity to present supplementalbriefing. This Court has considered each of the defects identified below in isolation, without considering their cumulative impact or addressing the functioning of California’s capital sentencing scheme as a whole. This analytic approachis constitutionally defective. “The constitutionality of a State’s death penalty system turns on review ofthat system in context.” (Kansas v. Marsh (2006) 548 U.S. 163,179 n.6.) Whenviewed as a whole, California’s sentencing schemeis so broad in its definitions of whois eligible for death and so lacking in procedural safeguardsthatit fails to provide a meaningfulorreliable basis for selecting the relatively few offenders subjected to capital punishmentin violation of the Fifth, Sixth, Eighth, and Fourteenth Amendments. California’s death penalty statute potentially sweeps virtually every murdererinto its grasp. There are no safeguards in California during the penalty phase that would enhancethereliability of the trial’s outcome. Instead, factual prerequisites to the imposition of the death penalty are found by jurors who are not instructed 279 on any burden of proof, who may not agree with each other, and whoare not required to make any findings. Paradoxically, the fact that “death is different” has been turned on its head to mean that procedural protections taken for grantedin trials for lesser criminal offenses are suspended when the question is a finding that is foundational to the imposition of death. The result is truly a “wanton and freakish” system that randomly chooses among the thousands of murderers in California a few victims to put to death. A. Penal Code,section 190.2 is Impermissibly Broad. A constitutionally valid death penalty law must provide a meaningful basis for distinguishing the few cases in which the death penalty is imposed from the many cases in whichit is not. (People v. Edelbacher (1989) 47 Cal.3d 983,1023, citing Furman v. Georgia (1972) 408 U.S. 238, 313 [conc. opn. of White, J.].) Meeting this criteria requires a state genuinely to narrow, by rational and objective criteria, the class of murdererseligible for death. (Zant v. Stephens, supra, 462 U.S. at p. 878. California’s capital sentencing scheme does not meaningfully narrow the pool of murdererseligible for the death penalty. Accordingto the California Supreme Court, the requisite narrowing in California is accomplished by the “special circumstances”set out in section 190.2. (People v. Bacigalupo (1993) 6 Cal.4th 857, 868.) However,the 280 special circumstances foundtrue in this case - multiple murder, and murder committed while lying in wait (Penal Code § 190.2(a)(15) - lack any meaningful narrowing. These categories are joined by so many other categories of special-circumstance murderthat the statute now comes close to making every murderereligible for death. The Court should reconsider and overrule its prior precedent and hold section 190.2(a) is so broad that it fails properly to narrow the set of murderseligible for death as required by the Eighth and Fourteenth Amendments. B. The Broad Application of Section 190.3, Factor (a), Violated Appellant’s Constitutional Rights. Penal Code Section 190.3, factor (a), directs the jury to consider in aggravation the “circumstancesofthe crime.” Prosecutors can weigh in aggravation almost every conceivable circumstance of the crime, even those that, from caseto case, reflect starkly opposite circumstances.In this case the prosecution relied solely on factor (a) in support ofits call for death. It relied on the circumstancesofthe crime itself and victim impact evidence, which the California Supreme Court has said comes within the ambit the circumstancesofthe crime. (People v. Zamudio (2008) 43 Cal.4th 327, 324- 325.) The California Supreme Court has not applied a limiting construction to factor (a). (People v. Blair (2005) 36 Cal.4th 686, 749.) The 281 “circumstances of the crime” factor can hardly be called “discrete.” (Brown Vv. Sanders (2006) 546 U.S. 212, 222.) The concept of “aggravating factors” has been applied in such a wanton and freakish mannerthat almostall features of every murder can be, and have been, characterized by prosecutors as “aggravating.” Asa result, California’s capital sentencing schemeviolates the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution because it permits the jury to assess death upon nobasis other than “that a particular set of facts surrounding a murder... were enough in themselves, and without some narrowing principles to apply to those facts, to warrant the imposition of the death penalty.” (See Maynard v. Cartwright, supra, 486 U.S.at p. 363; but see Tuilaepa v. California, supra, 512 U.S. 967, 987-988 [rejecting challenge to factor(a)].) Appellant recognizes that the California Supreme Court has repeatedly rejected the claim that permitting the jury to consider the “circumstances of the crime” within the meaningofsection 190.3(a) results in the arbitrary and capricious imposition ofthe death penalty. (See, e.g., People v. Kennedy (2005) 36 Cal.4th 595, 641.) However, forall of the reasonsset forth herein, he respectfully urges the Court to reconsider its previous decisions. 282 C. The Instructions Caused the Penalty Determination to Turn on an Impermissibly Vague and AmbiguousStandard. The question whether to impose the death penalty for appellant hinged on whether the jurors were “persuadedthat the aggravating circumstancesare so substantial in comparison with the mitigating circumstancesthat it warrants death instead of life without parole.” (13 CT 3603 [CALJIC 8.88].) The phrase “so substantial” is an impermissibly broad phrase that does not channelorlimit the sentencer’s discretion in a mannersufficient to minimizethe risk of arbitrary and capricious sentencing. Consequently, this instruction violates the Eighth and Fourteenth Amendments becauseit creates a standard that is vague and directionless. (See Maynard v. Cartwright, supra, 486 U:S.at p. 362.) The California Supreme Court has foundthat the use ofthis phrase does not renderthe instruction constitutionally deficient. (People v. Breaux, supra, | Cal.4th at p. 316, fn. 14.) Appellant respectfully asks this Court to reconsider. D. The Use of Restrictive Adjectives in the List of Potential Mitigating Factors Impermissibly Prevented Appellant’s Jury from Considering Relevant Mitigation. The inclusion in the list of potential mitigating factors of such 283 adjectives as “extreme”(see factors (d) and (g)) and “substantial”(see factor (g)) acted as barriers to the meaningful consideration of mitigation in violation of the Fifth, Sixth, Eighth, and Fourteenth Amendments. (Mills v. Maryland (1988) 486 U.S. 367; Lockett v. Ohio, supra, 438 U.S. 586.) Appellant is aware that the Court has rejected this argument(see People v. Avila (2006) 38 Cal.4th 491, 614), but respectfully urges reconsideration. E. The Failure to Clarify that Certain Statutory Factors Could Only be Relevant as Potential Mitigators Prevented a Fair and Reliable Penalty Determination. As a matter of state law, each of the factors introduced by a prefatory “whether or not” - factors (d), (e), (f), (g), (h), and (j) - were relevant solely as possible mitigators. (People v. Hamilton (1989) 48 Cal.3d 1142, 1184; People v. Edelbacher, supra, 47 Ca1.3d at p. 1034.) The jury, however, was left free to concludethat a “not” answer as to any of these “whether or not” sentencing factors could establish an aggravating circumstance, and wasthus invited to aggravate the sentence uponthe basis of non-existent and/or irrational aggravating factors, thereby precludingthereliable, individualized capital sentencing determination required by the Eighth and Fourteenth Amendments. (Zant v. Stephens, supra, at p. 879.) Further, the jury wasalso left free to aggravate a sentence uponthe basis of an affirmative answer to 284 one ofthese questions, and thus, to convert mitigating evidence (for example, evidenceestablishing a defendant’s mental illness or defect) into a reason to aggravate a sentence,in violation of both state law andthe Eighth and Fourteenth Amendments. (But see People v. Morrison (2004) 34 Cal.4th | 698, 730.) The very real possibility that appellant’s jury aggravated his sentence on the basis of non-statutory aggravation deprived him of an important state-law generated procedural safeguard andliberty interest - the right not to be sentenced to death except upon the basis of statutory aggravating factors (People v. Boyd, supra, 38 Cal.3d at pp. 772-775), and thereby violated appellant’s Fourteenth Amendmentright to due process of law. (See Hicks v. Oklahoma, supra, 447 U.S. 343; Fetterly v. Paskett (9th Cir. 1993) 997 F.2d 1295, 1300 [holding that Idaho law specifying mannerin which aggravating and mitigating circumstancesare to be weighed created a liberty interest protected under the Due Process Clause of the Fourteenth Amendment]; and Campbell v. Blodgett (9th Cir. 1993) 997 F.2d 512, 522 [same analysis applied to state of Washington].) It is likely that appellant’s jury aggravatedhis sentence on the basis of what were, as a matter ofstate law, non-existent factors and did so believingthat the State - as represented by the trial court - had identified them as potential aggravating factors supporting a sentence of death. For example, the court permitted expansive 285 testimony attacking appellant’s character underthe guise of relevant evidence admitted under Evidence Codesection 1 101(b) and, in the penalty phase, victim impact testimony and evidence. (See Arguments I, V, and X.) At the sametime,thetrial court excluded mitigating evidence regarding appellant’s psychiatric history which could have been presented through the testimony of his mother. (See 15 RT 2122-2124.) This violated not only state law, but the Eighth Amendment,for it madeit likely that the jury treated appellant“as more deserving of the death penalty than [he] might otherwise be by relying upon... illusory circumstance[s].” (Stringer v. Black, supra, 503 U.S. 222, 235.) “Capital punishment [must] be imposedfairly, and with reasonable consistency, or not at all.” (Eddings v. Oklahoma (1982) 455 U.S. 104, 112.) Whethera capital sentence is to be imposed cannot be permitted to vary from case to case accordingto different juries understandings ofhow many factors on a statutory list the law permits them to weigh on death’s side of the scale. F. Appellant’s Death Sentence is Unconstitutional Becauseit is Not Based on Findings Made Beyonda Reasonable Doubt. California law does not require a reasonable doubt standard be used 286 during any part of the penalty phase, except as to proofofprior criminality. (CALJIC Nos. 8.86, 8.87; see People v. Anderson (2001) 25 Cal.4th 543, 590; People v. Fairbank (1997) 16 Cal.4th 1223, 1255.) Appellant’s jury was not told that it had to find beyond a reasonable doubt that aggravating factors in this case outweighed the mitigating factors before determining whether or not to impose a death sentence. The United States Supreme Court’s decisions, however, require anyfact that is used to support an increased sentence (other than a prior conviction) be submitted to a jury and proved beyond a reasonable doubt. (See Cunningham v. California (2007) 549 USS. 270; Blakely v. Washington (2004) 542 U.S. 296; Ring v. Arizona (2002) 536 U.S. 584; and Apprendi v. New Jersey, supra, 530 U.S. 466.) In Ring v. Arizona, the Court struck down Arizona’s death penalty scheme, which authorized a judge sitting without a jury to sentence a defendant to death if there was at least one aggravating circumstance and no mitigating circumstances sufficiently substantial to call for leniency. (Ring v. Arizona, supra, 536 US. at p. 593.) Anyfactual finding which increases the possible penalty is the functional equivalent of an elementofthe offense, regardless ofwhen it must be found or what nomenclature is attached; the Sixth and Fourteenth Amendments require that it be found by a jury beyonda reasonable doubt. 287 In Cunningham v. California, the United States Supreme Court rejected the California Supreme Court’s interpretation ofApprendi, and foundthat California’s Determinate Sentencing Law (“DSL”) requires a jury finding beyonda reasonable doubt of any fact used to enhance a sentence above the middle range set by the sentencing statute. It explicitly rejected the reasoning used by this Court to find that Apprendi and Ring have noapplicationto the penalty phase of a capitaltrial. (See Cunninghamv. California, supra, 549 U.S. 270.) California law as interpreted by this Court does not requirethat a reasonable doubt standard be used during any part of the penalty phase of a defendant’s trial relied on as an aggravating circumstance, except as to prior criminality- and even in that context the required finding need not be unanimous. (See People v. Hawthorne (1992) 4 Cal.4th 43, 79.) California statutory law and jury instructions, however, do require fact-finding before the decision to impose death ora lesser sentenceis finally made. As a prerequisite to the imposition of the death penalty, Section 190.3 requires thetrier of fact to find that at least one aggravating factor exists and that such aggravating factor (or factors) substantially outweigh any and all mitigating factors. As set forth in California’s “principal sentencing instruction”(People v. Farnam (2002) 28 Cal.4th 107, 288 177), which wasread to the jury in this case, “an aggravating factor is any fact, condition or event attending the commissionofa crime which increases its guilt or enormity, or addstoits injurious consequences whichis above and beyond the elements ofthe crime itself.” (13 CT 3603 [CALJIC No. 8.88].) Thus,before the process of weighing aggravating factors against mitigating factors can begin, the presence of one or more aggravating factors must be found bythe jury. And before the decision whetheror not to impose death can be made,the jury mustfind that aggravating factors substantially outweigh mitigating factors. These factual determinationsare essential prerequisites to death-eligibility, but do not meanthat death is the inevitable verdict; the jury can still reject death as the appropriate punishment notwithstanding these factual findings. In People v. Loker (2008) 44 Cal.4th 691, 755, the California Supreme Court held, notwithstanding Cunningham, Apprendi, and Blakely, that a defendant has no constitutional right to a jury finding asto the facts supporting a death sentence. In the wake of Cunningham, however,it is clear that in determining whetheror not Ring and Apprendiapplyto the penalty phase ofa capital case, the sole relevant question is whether or not there isa requirementthat any factual findings be made before a death penalty can be imposed. Under California law, once a special circumstance has been found 289 true, life without possibility of parole is the default. Death is not an available option unless the jury makes further findings that one or more aggravating circumstancesexist, and that the aggravating circumstances substantially outweigh the mitigating circumstances. (Pen. Code § 190.3.) “Ifa State makes an increase in a defendant’s authorized punishment contingent on the finding of a fact, that fact - no matter how the State labelsit - must be found by a jury beyond a reasonable doubt.” (Ring v. Arizona, supra, 530 U.S.at p. 604.) Theissue ofthe Sixth Amendment’s applicability hinges on whether, as a practical matter, the sentencer must make additional findings during the penalty phase before determining whetheror not the death penalty can be imposed. In California, as in Arizona, the answeris “Yes.” Ring and Cunningham, require the requisite fact-finding in the penalty phase to be made unanimously and beyond a reasonable doubt. California law violates the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution. Appellant urges this Court to reconsiderits decisions holding that California law is consistent with Cunningham, Ring, Blakely, and Apprendi. He further urges the Court to reconsiderits holdings that the Eighth and Fourteenth Amendments do not require thetrier of fact to be convinced death is the appropriate penalty and 290 that the factual bases supporting the penalty are true beyond a reasonable doubt. G. California Law Violates the Sixth, Eighth, and Fourteenth Amendments by Failing to Require That the Jury Base Any Death Sentence on Written Findings Regarding Aggravating Factors. The failure to require written or other specific findings by the jury regarding aggravating factors deprived appellantof his federal Sixth, Eighth, and Fourteenth Amendmentrights to meaningful appellate review. (California v. Brown, supra, 479 U.S.at p. 543; Gregg v. Georgia, supra, at p. 195.) Because California juries have discretion without significant guidance on how to weigh potentially aggravating and mitigating circumstances (see People v. Fairbank, supra), there can be no meaningful appellate review without written findings. It is impossible to “reconstruct the findings ofthe state trier of fact.” (See Townsend v. Sain (1963) 372 U.S. 293, 313-316.) The California Supreme Court has held that the absence of written findings by the sentencer does not render the death penalty scheme unconstitutional. (People v. Fauber (1992) 2 Cal.4th 792, 859; Peoplev. Rogers (2006) 39 Cal.4th 826, 893.) Ironically, such findings are otherwise 291 considered by the Court to be an element of due process so fundamentalthat they are even requiredat parole suitability hearings and routinely in administrative law proceedings. A convicted prisoner whobelieves that he or she has been improperly denied parole must proceed by filing a petition for writ of habeas corpus andis required to allege with particularity the circumstancesconstituting the State’s wrongful conduct and show prejudice flowing from that conduct. (In re Sturm (1974) 11 Cal.3d 258.) The parole board is therefore required to state its reasons for denying parole:“It is unlikely that an inmate seeking to establish that his application for parole was arbitrarily denied can make necessary allegations with the requisite specificity unless he has some knowledgeofthe reasons therefor.”(Ud at p. 267.) Similarly, administrative decisions must be supported by written findings. (Topanga Assn. for a Scenic Community v. County ofLos Angeles (1974) 11 Cal.3d 506,514-515.) The sameanalysis applies to the far graver decision to put someoneto death. In a non-capital case, the sentenceris required by California law to state on the record the reasonsforthe sentence choice. (Pen. Code § 1170, subd. (c).) °'! Capital defendants are entitled to more rigorousprotections 91 A determination of parole suitability shares many characteristics (continued...) 292 than those afforded non-capital defendants. (Harmelin v. Michigan (1991) 501 U.S. 957, 994.) Since providing more protection to a non-capital defendant ora civillitigant than a capital defendant would violate the equal protection clause of the Fourteenth Amendment(see generally Myers v. Yist | (9th Cir. 1990) 897 F.2d 417, 421; Ring v. Arizona, supra), the sentencer in a capital case is constitutionally required to identify for the record the aggravating circumstances found andthe reasons for the penalty chosen. Written findings are essential for a meaningful review ofthe sentence imposed. (See Mills v. Maryland, supra, 486 U.S.at p. 383, fn. 15.) Even where the decision to impose death is “normative” and “moral”its basis can be, and should be, articulated. The importance of written findingsis recognized throughoutthis country; post-F'urmanstate capital sentencing systems commonly require them. Further, written findings are essential to ensure that a defendant subjected to a capital penalty trial under Section 190.3 is afforded the protections guaranteed by the Sixth Amendmentrighttotrial by jury. There are no other procedural protections in California’s death *'(...continued) with the decision of whether or not to impose the death penalty. In both cases, the subject has already been convicted ofa crime, and the decision maker must consider questions of future dangerousness, the presence of remorse, the nature of the crime,etc., in making its decision. (See Title 15, Cal. Code Regs., §§ 2280 et seq.) 293 penalty system that would somehow compensate for the unreliability inevitably produced bythe failure to require an articulation ofthe reasons for imposing death. (See Kansas v. Marsh, supra, 548 U.S. 163 [statute treating a jury’s finding that aggravation and mitigation are in equipoiseas a vote for death held constitutionalin light of a system filled with other procedural protections, including requirements that the jury find unanimously and beyond a reasonable doubt the existence of aggravating factors and that such factors are not outweighed by mitigating factors].) The failure to require written findings thus violated not only federal due process and the Eighth Amendmentbutalso therightto trial by jury guaranteed by the Sixth Amendment. This Court has rejected these contentions. (People v. Moore, supra, 2011 WL 322379; People v. Cook (2006) 39 Cal.4th 566, 619.) Appellant respectfully urges the Court to reconsider. H. The Death Verdict Was Not Premised on Unanimous Jury Findings. Imposing a death sentence violates the Sixth, Eighth, and Fourteenth Amendments whenthere is no assurance the jury, or even a majority of the jury, ever founda single set of aggravating circumstances that warranted the death penalty. (See Ballew v. Georgia (1978) 435 U.S. 223, 232-234; Woodson v. North Carolina, supra, 428 U.S. at p. 305.) “Jury unanimity ... 294 is an accepted, vital mechanism to ensurethat real andfull deliberation occurs in the jury room,andthat the jury’s ultimate decision will reflect the conscience of the community.” (McKoy v. North Carolina (1990) 494 U.S. 433, 452 [conc. opn. of Kennedy, J.].) This Court “has held that unanimity with respect to aperavating factors is not required by statute or as a constitutional procedural safeguard.” (People v. Taylor (1990) 52 Cal.3d 719, 749; People v. Moore, supra, at pp. 20-21.) Thefailure to require jury unanimity also violates the equal protection clause of the federal constitution. In California, when a criminal defendant has been charged with specialallegations that may increase the severity of her sentence, the jury must render a separate, unanimousverdict onthe truth of such allegations. (See, e.g., Pen. Code § 1158(a).) Since capital defendants are entitled to more rigorous protections thanthose afforded noncapital defendants (see Monge v. California (1998) 524 U.S. 721, 732; Harmelin v. Michigan, supra, 501 U.S.at p. 994), and since providing more protection to a noncapital defendantthan a capital defendant violates the equal protection clause of the Fourteenth Amendment(see e.g., Myers v. Yist, supra, 897 F.2d 417, 421), it follows that unanimity with regard to aggravating circumstances is constitutionally required. To apply the requirement to an enhancementfinding that may carry 295 only a maximum punishmentofone yearin prison, but not to a finding that could have “a substantial impact on the jury’s determination whether the defendant should live or die” violates the right to equal protection andbyits irrationality violates both the due process and cruel and unusual punishment clauses of the federal Constitution, as well as the Sixth Amendment’s guarantee ofa trial by jury. Appellant respectfully urges this Court to reconsider. 1. Some Burden of Proof Is Required, or the Jury Should HaveBeen Instructed That There Was No Burden of Proof. State law provides that the prosecution always bears the burden of proofin a criminal case. (Evid. Code § 520.) Section 520 creates a legitimate state expectation as to the way a criminal prosecution will be decided. Appellant, therefore, is constitutionally entitled under the Fourteenth Amendmentto the burden ofproof provided by that statute. (Hicks v. Oklahoma, supra, at p. 346.) Accordingly, the jury should have been instructed that the prosecution had the burden of persuasion regarding the existence of any factor in aggravation, whether aggravating factors outweighed mitigating factors, and the appropriateness of the death penalty, and that it was presumedthat life without parole was an appropriate sentence. The California Supreme Court has consistently held that capital 296 sentencing is not susceptible to burdens of proof or persuasion because the task is largely moral and normative, and thus is unlike other sentencing. (See, e.g., People v. Foster, supra, at pp. 157-158; People v. Lenart, supra, 32 Cal.4th at pp. 1136-1137.) The Court has also rejected any instruction on the presumptionoflife. (See, People v. Howard, supra, 118 Cal.Rptr3d 678, 700; People v. Jennings, supra, 50 Cal.4th at p. 689.) Appellant is entitled to jury instructions that comport with the federal Constitution and therefore he urges the Court to reconsider these decisions. J. California’s Use of the Death Penalty as a Regular Form of PunishmentFalls Short of International Normsof Humanity and Decency and Violates the Eighth and Fourteenth Amendments; Imposition of the Death Penalty Now Violates the Eighth and Fourteenth Amendments to the United States Constitution. The California Supreme Court has rejected the claim thatthe use of the death penalty atall, or, alternatively, that the regular use of the death penalty violates international law, the Eighth and Fourteenth Amendments, or “evolving standards of decency” (See Trop v. Dulles (1958) 356 U.S.86, 101; People v. Cook, supra, 39 Ca1.4th 566, 618-619; People v. Ghent (1987) 43 Cal.3d 739, 778-779.) Standards of decency are neverstatic. (Trop v. Dulles, supra, 356 U.S. at p. 101.) In light of the international community’s overwhelmingrejection of the death penalty as a regular form of punishment, 297 and the United States Supreme Court’s decision citing international law to support its decision prohibiting the imposition of capital punishment against defendants who committed their crimes as juveniles (Roper v. Simmons (2005) 543 U.S. 551, 554), appellant respectfully asks the Court to reconsider its previous decisions and hold the death penalty unconstitutional because, among other things, it violates the “evolving standards of decency that mark the progress of a maturing society”and is a violation of international law. (Trop v. Dulles, supra, at p. 101.) “When the law punishes by death,it risks its own sudden descentinto brutality, transgressing the constitutional commitment to decency andrestraint.” (Kennedy v. Louisiana, supra, 128 S.Ct. 2641, 2650.) 298 CONCLUSION Forall of the foregoing reasons, appellant’s convictions and sentence of death must be reversed. Dated: March7 2011 Attorney for Appellant CERTIFICATION OF WORD COUNT Appellate counsel certifies in accordance with California Rules of Court, rule 8.630(b)(2) and (4), that this opening brief contains 68, 551 words as calculated by the WordPerfect software in which+? was written. Dated: March Z. 2011 J bag4: 299 DECLARATION OF SERVICE BY MAIL Case Name: People v. Micky Ray Cage Case Number: Crim. SO120583 Riverside County Superior Court No. RIF-083394 I, the undersigned, declare as follows: I am a citizen ofthe United States, over the age of 18 years and not a party to the within action; myplace of employment and business address is 9462 Winston Drive, Brentwood, Tennessee 37027. On March i, , 2011, I served the attached APPELLANT’S OPENING BRIEF by placing a true copy thereof in an envelope addressed to each ofthe persons namedbelow at the addresses shown, and by sealing and depositing said envelope(s) in a United States Postal Service mailbox at Brentwood, Tennessee, with postage thereon fully prepaid. California Appellate Project Holly D. Wilkins 101 SecondStreet, 6" Floor Supervising Deputy Attorney General San Francisco, CA 94105 California Attorney General’s Office Attn. Dorothy Streutker P.O. Box 85266 San Diego, CA 92186-5266 Micky Ray Cage San Quentin State Prison P.O. Box V-13961 San Quentin, CA 94974 Hon. Dennis McConaghy c/o Office of the Clerk Riverside County Superior Court 4100 Main Street Riverside, CA 92501 I declare under penalty of perjury, accordingto the lawsofthe State of California, that the foregoing is true and correct. Executed on March , 2011, at Brentwood, Tennessee.
