PEOPLE v. RODRIGUEZ (ANGELINA)

Appellant’s Reply Brief

Cal.August 27, 2013

SUPREME COURT COPY IN THE SUPREME COURT OF THE STATE OF CALIFORNIA SUPREME COURT FILED PEOPLE OF THE STATE OF CALIFORNIA. AUG 27 2013 Plaintiff and Respondent, vs. Los Angeles County Superior CourtNo. = Frank A. McGuire Clerk BA213120 ANGELINA RODRIGUEZ, Defendant and Appellant Supreme Court No. Deputy $122123 e e e e e e e e e e e e e e APPELLANT'S REPLY BRIEF Appeal from the Judgmentof the Superior Court of Los Angeles County Honorable William Pounders, Judge Presiding Karen Kelly State Bar No. 118105 P.O. Box 6308 Modesto, CA 95357 209 552 0988 Attorneyfor Appellant Angelina Rodriguez DEATHPENALTY TABLE OF CONTENTS INTRODUCTION —_......sssncecccncscecersccccscnsscntonsscascccescescnsencssescnensesesteesonsansccoss I. APPELLANT WAS DEPRIVED OF HER RIGHTS TO DUE PROCESS, A FAIR TRIAL, A REPRESENTATIVE JURY, AND RELIABLE GUILT AND PENALTY DETERMINATIONS BY THE ERRONEOUSEXCUSALOF JURORS NO. 2 AND 8 FOR CAUSE ou...ssscsscststnceecsesoncetsccnscsenentnesstenennnsseascensaseensenes I. IN VIOLATION OF APPELLANT’S RIGHTS TO DUE PROCESS, ACCESS TO COUNSEL, FAIR TRIAL, EQUAL PROTECTION AND TOA FAIR PENALTY DETERMINATION, APPELLANT WAS SUBJECTED TO UNLAWFUL AND INHUMANE CONDITIONS OF CONFINEMENT _.ccsccssccoscnscneteeneeeseesensens Mt. THE TRIAL COURT’S DENIAL OF TELEPHONE ACCESS ANDVISITS FROM HER DEFENSE COUNSEL, AND PERMITTING JAIL INTERFERENCE WITH CORRESPONDENCE AND LEGAL MATERIALS, DEPRIVED APPELLANT OF HER FIFTH AND SIXTH AMENDMENTRIGHTS TO COUNSEL, AND FIFTH AND FOURTEENTH AMENDMENTRIGHTS TO DUE PROCESS ANDA FAIR TRIAL...... IV. THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT FAILED TO DISCHARGE APPELLANT’S RETAINED ATTORNEY AT HER REQUEST —_un ssssscnsssscsnsscrscscncscccccsescscscesseersesscscscsscasscnsossesnscsassssoesess V. THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING APPELLANT'S MARSDEN MOTION FOR APPOINTMENTOF NEW COUNSEL naeeeccsssccrrccesenscescnssoeeens svesccncvasscnneeneucconeccacossacncsesceeeeeserstanseaes A. Houchin's Failure to Provide Adequate Representation_.............. 1. The Court's inquiry was Inadequate and Houchin did in fact provide ineffective assistance of counsel .........sssssseseeeeeee B. Evidence of an Irreconcilable Conflict..............cccsscccccsssescsccscccccscnsecs 1. The Court's Inquiry was Inadequate and the Parties had Become Embroiled in an Irreconcilable Conflict. ............... 15 20 21 21 25 Table of Contents Cont. VI. APPELLANT'S STATE AND FEDERAL DUE PROCESSRIGHTS WEREVIOLATEDBY THE DENIAL OF ANY MEANINGFUL HEARING ON HER COMPETENCY TO PROCEED TO TRIAL............ssessesseosserorsssesensnerserseese 27 Vil. THE TRIAL COURT ERRED IN PERMITTING THE INTRODUCTION OF IMPROPER DEMEANORTESTIMONY _ucecsscesesssnsrscerseceeee 32 VII. EVIDENCE OF JUDICIAL BIAS REQUIRES REVERSAL OF APPELLANT CONVICTIONS AND DEATH SENTENCE.........sscsccessoorercceserersseees 36 IX. APPELLANT WAS DEPRIVED OF HER RIGHTS TO DUE PROCESS, TO A FAIR TRIAL AND TO HER RIGHT TO BE PRESENT THE TRIAL COURT’S ERROR IN CONDUCTING PROCEEDINGSIN APPELLANT’S ABSENCE. .............-++ 41 X. APPELLANT’S 6" AMENDMENTRIGHT TO CONFRONT WITNESSES UNDERCrawford v. Washington WAS VIOLATED BY THE TRIAL COURT’S ADMISSION OF EVIDENCE —..ccccccccssecseseccescrecserssceves 47 A. The Handwritten Notes and Recorded Statement of GwendolynHall through the Testimonyof Detective StEIMWAN ocssscscccecccscccnensssscereessecconscnccsceseeeeseeecccecssesccesssecscesesouscecs 47 B. AutumnFuller's Statements about Gatorade throughthe testimonyof Dr. Vicary via the report of Dr. ROMANOPFF —___aicccccccccccccccccccccccccnscnrscnccscccccersncserscncesrescnsssccensseves 49 XI. THE GUILT PHASE ERRORS MUST BE DEEMED PREJUDICIAL TO THE PENALTY PHASE UNLESS THE STATE CAN PROVE BEYOND A REASONABLE DOUBT THAT THE ERRORSDID NOT AFFECT THE PENALTY VERDICT =—_—__caceecccccncsssccesccccssccccsnssncncnsessconccsconesssesessanencceconenees 50 XII. THE USE OF INADMISSIBLE EVIDENCE IN AGGRAVATION THAT APPELLANT-- EIGHT YEARS EARLIER — ALLEGEDLY MURDERED HER INFANT DAUGHTERVIOLATEDTHEFIFTH, SIXTH, EIGHTH AND FOURTEENTH AMENDMENTS oui... ..cscscnsscsrorscrccccnscasesenesessscrscensneesesseaees 52 Table of Contents cont. XI. 1, The court failed to hold an adequatePhillips hearing to determine whether there was sufficient evidence to find the essential elements of the crime of murder beyond a reasonable doubt, and the evidence adducedat that truncated hearing wasinsufficient to establish the commissionof that crime ..........s++0+ 52 2. The Court Failed To Apply the Correct Legal Standardin Determining Whether Aggravating Evidencethat Alicia’s Death was a Homicide Should be Introduced at the Penalty Trial, and the Evidence Before the Court wasInsufficient to find that the Jury Could Properly find Beyond a Reasonable Doubt that Alicia’s Death was a Homicide __...... 57 THE COURT ERRED IN ADMITTING EVIDENCE REGARDING APPELLANT'S COMMENTS ABOUTERLINDAALLEN AS PART OF THE PEOPLE'S CASE IN AGGRAVATION BECAUSE THOSE COMMENTS DID NOT CONSTITUTE THE USE OR ATTEMPTED USE OF FORCE OR VIOLENCE OR THE EXPRESS OR IMPLIED THREAT TO USE FORCE OF VIOLENCE —csscecctcsccrrcrcccereresceesscesseapenssconccscccsccescesccsouseoonesescoussoesssesensnenenss 62 XIV. IT IS REASONABLY LIKELY THAT ONE OR MORE JURORS WERE MISLED INTO THINKING THAT,IF APPELLANT KILLED UNDER THE INFLUENCE OF MENTALOR EMOTIONALDISTURBANCE THAT WAS LESS THAN EXTREME, SUCH DISTURBANCE WAS NOTA FACTORIN MITIGATION........ccsssssseccessccscorcnccsccsssecesssssnssscscnncucnssccsconcascuscscessosenesesseersesssees 64 XV. THE COURT IMPROPERLY DENIED APPELLANT’S APPLICATION FOR MODIFICATION OF THE DEATH SENTENCE UNDER PENAL CODESECTION 190.4, SUBDIVISION (e), DEPRIVING APPELLANT OF DUE PROCESS OF LAW ANDA FAIR AND RELIABLE PENALTY DETERMINATIONIN VIOLATION OF HER RIGHTS SECUREDBY THEFIFTH, EIGHTH AND FOURTEENTH AMENDMENTS... 64 XVI. THE CALIFORNIA DEATH PENALTY STATUTE AND INSTRUCTIONS ARE UNCONSTITUTIONAL BECAUSE THEYFAIL TO INSTRUCT THE JURY ON ANY PENALTY PHASE BURDEN OF PROOF ___......sesssssscrsscecsscreccserseeserscesececesrente 68 XVII. THE INSTRUCTIONS DEFINING THE SCOPE OF THE JURY'S SENTENCING DISCRETION AND THE NATUREOFITS DELIBERATIVE PROCESS VIOLATED APPELLANT'S CONSTITUTIONAL RIGHTS «—aassssssscossecsseesesscssesessseesensconsons 68 Table of Contents Cont. XIII. THE FAILURE TO PROVIDE INTERCASE PROPORTIONALITY REVIEW VIOLATES APPELLANT'S CONSTITUTIONALRIGHTS ...........ssscessssseeee 69 XIX. CALIFORNIA’S USE OF THE DEATH PENALTY VIOLATES INTERNATIONAL LAW, THE EIGHTH AMENDMENT, AND LAGS BEHIND EVOLVING STANDARDS OF DECENCY =—_h aa eecscccsssccsssccerscsccccesessscesssccsscssscasesnsceessscessescncesosscsecsonceaes 69 XX. CALIFORNIA'S DEATH PENALTY SCHEMEFAILS TO REQUIRE WRITTEN FINDINGS REGARDING THE AGGRAVATING FACTORS AND THEREBY VIOLATES APPELLANT'S CONSTITUTIONAL RIGHTS TO MEANINGFUL APPELLATE REVIEW AND EQUAL PROTECTION OF THE LAW ..........sccsssscsssssssccssseccssssccsnssasonensesene 70 XXI. THE CUMULATIVE EFFECT OF THE ERRORS UNDERMINED THE FUNDAMENTALFAIRNESSOF THE TRIAL AND THE RELIABILITY OF THE DEATH JUDGMENT, REQUIRING REVERSAL aa... es ececcesssccscscceecensseesscccesenscseencnsons 70 XXII. ANY FAILURE OF DEFENSE COUNSEL TO REQUESTOR OBJECT TO ANY OF THE JURY INSTRUCTIONS SHOULD BE EXCUSED a... ..sssesenseonoees 72 XXIII. THIS COURT SHOULD REVIEW ALL ERRORS ON THE MERITS, RATHER THAN INVOKING PROCEDURALBARS BECAUSEDEATHIS THE ULTIMATE PENALTY —..eeccccccsscccsscccserenscnscsccssenscnccescssssccsccsssssensesesscsosccesensonesesosens 73 XXIV. CLAIMS RAISED IN THE HABEASPETITION ARE INCORPORATED BY REFERENCE, BUT ONLYiF THIS COURT DETERMINES THAT SUCH CLAIMS SHOULD HAVE BEEN RAISED ON APPEAL easeeeessscsccesccnsceccceesonensorescene 73 CONCLUSION —_naiscssssscccsceccesssscesssccsccersseencessnscnsccssscseoeeseesssconssacsecessneceess 73 CERTIFICATION OF WORK COUNT.............ccccsssesssceeeeeeessesssstasessssssssseseesessseees 75 TABLE OF AUTHORITIES CASES Arizonav. Fulminante (1991) 499 U.S. 279 Bell v. Cone (2002) 535 U.S. 68 vvececcstessseeen Crawford v. Washington (2004) 541 U.S. 36 Diaz v. United States (1912) 223 U.S. 442........ Cee meee seen eterna seas eseaseeneennanaee Doers v. Golden Gate Bridge ete. Dist. (1979) 23 Ca1.3d 180 ............ Dong Hawv. Superior Court (1947) 81 Cal.App.2d 153. .ccsccsessessesesseseees Drope v. Missouri (1975) 420 U.S.162 ....... Dusky v. United States (1960) 362 U.S. 408 Faretta v. California (1975) 422 U.S. 806 seve Gardnerv. Florida (1977) 430 U.S. 349 _....... Gideon v. Wainwright (1963) 372 U.S. 335 Gregg v. Georgia (1976) 428 U.S.153 a... Hicks v. Oklahoma (1980) 447 U.S. 343 _....... In re Marquez (1992)1Cal.4th584 sa... Kentuckyv. Stincer (1987) 482 U.S. 730 _....... Marshall v. Jerico, Inc. (1980) 446 U.S. 238 | Medinav. California (1992) 505 U.S. 437....... Pate v. Robinson (1966) 383 U.S.375 ws... People v. Arias (1996) 13 Cal.4th92 so... Peoplev. Bolin (1998) 18 Cal.4th 297) w.. People v. Brown (1988) 46 Cal.3d 432 ........ People v. Clair (1992) 2 Cal.4°629 a... People v. Cook (1984) 151 Cal.App.3d 1142 Cem enesrcreneerereceeseseccesennennaenassesnese 43 43 48 43 — 36 54 29, 42 27 42 53 19 65 66 72 42 37 28, 29 28 65 32 72 58 63 People v. Farley (2009) 46 Cal.4th 1053__....... People v.Fierro, (1991) 1Cal4th173 _....... People v. Grant (1988) 45 Cal.3d 829 ....... People v. Griffin (2004) 33 Cal.4th 536 =... People v. Harrison (2005) 35 Cal.4th 208....... People v. Hill (1992) 3 Cal.4th 959 ou... - People v. Marsden (1973) 2 Cal.3d 118 _....... People v. Memro (1995) 11 Cal.4th 786 ....... People v. Ochoa (2001) 26 Cal.4th 398_........ People v. Ortiz (1990) 51Cal.3d975 People v. Partida (2005) 37 Cal.4th 428 oiiiecesssecssssecsssecscessscesesesssaceesenseeees People v. Pennington (1967) 66 Cal.2d 508 Peoplev. Perez (2000) 82 Cal.App.4"" 760 Peoplev. Phillips (1985) 44 Cal.3d29 _....... People v. Redmond (1969) 71 Cal.2d 745 .......ccecccssccssessessecsssesseseesseseseecseseeseeas People v. Roberts (1992) 2 Cal.4th 271 _....... People v. Rundle (2008) 43 Cal.4th 1067....... Reem meme e ean se cn eens ns eeseeneceseeeeensnssenes Dee e ame re mn ereeecerenen sees sesseeernnasssesenesaes People v. Sandoval (1992) 87 Cal.App.4th 1425 oo... .eeceesscssccsecsecseteeesseereseres People v. Snow (2003) 30 Cal.4th43 a... People v. Superior Court (Campbell) (1975) 51 Cal.App.3d 459.............ccsceeees People v. Whisenhunt(2008) 44 Cal.4th 174 People v. Zamudio (2008) 43 Cal.4th 327....... Proffitt v. Florida (1976) 428 U.S.242 ....... Riggins v. Nevada (1975) 504 S.Ct. 127 _....... United States v. Gonzalez-Lopez (2006) 548 U.S.140 wa..eccsessscsseesseesseeseeees 36 25 53, 58 20 25 43 16 32, 33 28 48 53 54 32 37 60 41 31 55 32, 33 65 28 17 United States v. Kelm (9th Cir. 1987) 827 F.2d 1319 UnitedStatesv.Lillie (9th Cir. 1993) 989 F.2d 1054 United States v. Ray (9th Cir. 1984) 731 F.2d 1361 CODES Evidence Codesection Bo iicccccecsseeecteeeeseescerenseeeesseeseeeeseneeseseeesnees Penal Codesection 190.3 ooieeeecccectssecsceseesssesssseseeseesesaesceseeeseees OTHER 2003 ABA Guidelines os. eeesseeesssecsseeetteeceseneesees Burton, Burton’s Legal Thesaurus 4thed. (2007) McGraw-Hill Companies,Inc. California Code ofJudicial Ethics ...........essssasessesssasuessesessnestecessaveesessnanestsessssen Code of Judicial Ethics oeceeeeeccesicesesesecesessessnccescnsccaccceccccccesecececcoeceeeesessseseees Seem wen eon teres eeeaaenesccssensease Sunderland, The Problem ofAppellate Review (1927) 5 Tex. L. Rev. 126 United States Constitution Fifth Amendment ouui........cceececeseeeeseeesesceeeeeees Sixth AMeENdMENt ou.eeeccececcceecccccceeecccsssesseceees Eighth Amendment ..........cccccccccsessssssessessseeees Fourteenth Amendment...............0s:seccccceesseeess California Constitution article |, sections 7, 16, and 17 wu.eeeeee 18 17 17 33 53, 58 58 41,42 28 23, 44 11 37, 38 36 passim passim passim passim passim IN THE SUPREME COURTOF THE STATE OF CALIFORNIA PEOPLE OF THE STATE OF CALIFORNIA. Plaintiff and Respondent, Los Angeles County vs. Superior Court No. ANGELINA RODRIGUEZ, BA213120 Defendant and Appellant Supreme Court No. §122123 m e e e e e e e e e e e e APPELLANT'S REPLY BRIEF INTRODUCTION In this brief, appellant addresses specific contentions made by respondent, but doesnotreply to arguments which are adequately addressed in appellant’s opening brief. Appellant’s decision not to address any particular argument, sub-argumentor allegation made byrespondent,or to reassert any particular point madein the opening brief, does not constitute a concession, abandonmentor waiverof the point by appellant (see People v. Hill (1992) 3 Cal.4th 959, 995,fn. 3), but reflects appellant’s view that the issue has been adequately presented and thepositions of the parties fully joined. I. APPELLANT WAS DEPRIVED OF HER RIGHTS TO DUE PROCESS,A FAIR TRIAL, A REPRESENTATIVE JURY, AND RELIABLE GUILT AND PENALTY DETERMINATIONSBY THE ERRONEOUS EXCUSALOF JURORS NO. 2 AND 8 FOR CAUSE Respondentdisagrees with appellant's contention that the trial court's excusalof prospective Jurors nos. 2 and 8 violated herrights to a fair and impartial trial and to due process. (RB 47.) Because the voir dire of these jurors established that their position on the death penalty would neither prevent nor impair their ability to impose a sentence of death, respondentis wrong. Juror No. 2 Appellant and respondenthavebothcited the applicable portions of Juror no. 2's voir dire. (AOB 78-80; RB 49-52.) Although Juror no. 2 expressed some reservationin applying the death penalty, the dialogue between this prospective juror and the court did not establish that the juror held such views on the death penalty which would preventor substantially impair her ability to imposeit in this case. Respondentrelies in part on People v. Harrison (2005) 35 Cal.4th 208, 227-228 to support its argument that because Juror no. 2 gave conflicting answersthetrial court properly granted the prosecution's challenge. (RB 54.) However, the answersgiven by the juror in Harrison demonstrate that in the instant case, Juror no. 2's answers were not such that the challenge should have been granted. Several times during voir dire in Harrison, the prospective juror said she could not vote for the death penalty. Although she hedged her answerbystating that "maybe" she could notdo so, by the endofvoir dire, she stated: "! would find it very, very difficult [to vote for the death penalty], but | could probably do it. | mean, that's as good as I can come."After the prosecutor challenged the juror for cause, thetrial court noted that the juror was "quite uncomfortable" during questioning and that "the record may notreflect the physical manifestations of her anxiety." (/d., at p. 227.) It was under these circumstancesthat that court's determination of the prospective juror's state of mind wasbinding.(/bid.) But in the instant case, while the juror expressed somereluctance, she respondedthat there were instances when the death penalty was appropriate; that she would not automatically vote for or against the death penalty; would not necessarily consider any type of crime necessarily deserving of the death penalty; would not disregard the weighing processin favor of or against the death penalty; and that althoughin her opinion the death penalty was not used enough, she would decide cases on Casebycase basis. (RT 949-982.) As recognized by respondent, the juror noted examplesof specific factors where the death penalty was appropriate. These factors included a violent defendant who had committed several murders, disrupted the judicial process, and never showed remorse. (RB 50-51; RT 1008-1009.) Prospective Juror no. 2 stated that she thought that the death penalty should be carried out more often. (RT 981.) Moreover, unlike the prospective juror in Harrison, where thetrial court removed the juror not because she had serious doubts about the death penalty, but becausethe trial court found that those doubts would substantially impair her ability to follow the court's instructions (/d., at p. 228), Juror no. 2 was removed becausethetrial court erroneously found that the juror would only vote for death in the most extreme of situations. Here the trial court specifically noted she would "perhaps"vote for the death of a defendant "whohaskilled 25 people." (RT 1038-1039.) As noted above, that wasnotthe juror's responseto the court's questions. Substantial evidence does not supportthetrial court's findings that prospective juror no. 2 held views concerning Capital punishmentthat substantially impaired herability to perform her duties. Juror no. 8 The court's dismissal of Juror no. 8 also was not permissible. Again, appellant and respondentrecite the dialogue betweenthejuror and the parties. (AOB 81-82; RB 56-60.) As recognized by respondent,Juror no. 8 was challenged by the prosecutor because of the prosecutor concluded "[Juror no. 8] basically admitted that he can't be fair to police officers and he would not judge them by the samestandardsas any other witness" (RB 60; RT 1101), and because, again in the prosecutor's opinion, he had given conflicting answers to whether he would impose the death penalty. (RB 60.) Respondentconcludes once more that based on Harrison, the court was permitted to dismiss the juror. (RB 61.) However, while prospective Juror no. 8 recognized that his emotions might comeinto play when deciding the appropriate penalty, he assured the court and the parties that he would judgeall witnesses fairly and would "divorce"his emotions from the process. (RT 1090-1091.) In the instantcase, unlike the situations presented in People v. Griffin (2004) 33 Cal.4th 536, (cited by respondent RB 61-62) there is not substantial evidence to support the dismissal of juror no. 8. Although,similar to Griffin, the trial court, may have had the opportunity to observe the demeanor of this juror in order to “assess the degree of reluctance and apprehension expressed by [the] prospective juror in responding to questioning"(id., at p. 560), appellant maintains that the trial court could not "reasonably find that the prospective juror’s views on the death penalty would substantially impair [his] ability to perform the duties of a juror in accordance with the trial court's instructions."(/bid.) In Griffin, this Court noted that one of the prospective jurors indicated that she would not wantto take responsibility for voting for the death penalty and, upon further questioning, stated and reiterated that she did not know whethershe ever could vote to imposethe death penalty, regardless of the state of the evidence in a case. Another prospective juror, although stating that she supported the death penalty generally, also stated she did not know whether she actually could vote to impose the death penalty-- even in a case in which she had concluded that the defendant deserved the death . penalty. (id., at p. 560.) In the instant case, by contrast, there was little conflict in the juror's views and he neverstated he would not or could not impose the death penalty. Juror no. 8 merely responded that he had personal feelings which made him uncomfortable with the death penalty and might gaugehisbelief as less than moderately in favor ofits use. (RT 110)-1101.) For all of the reasons argued aboveandin appellant's opening brief, dismissal of these jurors wasreversible error. il. IN VIOLATION OF APPELLANT’S RIGHTS TO DUE PROCESS, ACCESS TO COUNSEL, FAIR TRIAL, EQUAL PROTECTION ANDTO A FAIR PENALTY DETERMINATION, APPELLANT WAS SUBJECTED TO UNLAWFUL AND INHUMANE CONDITIONS OF CONFINEMENT AND HI. THE TRIAL COURT’S DENIAL OF TELEPHONE ACCESS AND VISITS FROM HER DEFENSE COUNSEL, AND PERMITTINGJAIL INTERFERENCE WITH CORRESPONDENCE AND LEGAL MATERIALS, DEPRIVED APPELLANT OF HER FIFTH AND SIXTH AMENDMENT RIGHTS TO COUNSEL, AND FIFTH AND FOURTEENTH AMENDMENTRIGHTS TO DUE PROCESS ANDA FAIR TRIAL As respondent combined its arguments underonesection appellantwill reply in the same fashion. Respondent's contention can befairly summedup as "She got what she deserved." However, the entire premise of respondent's argument, that appellant was somehowresponsible for the deplorable treatment and conditions she was subjected to for nearly three years while awaiting trial, is faulty. First, contrary to respondent's observation (RB 79-80), the record does not indicate that appellant was placed in Module 211 of Los Angeles County Twin Towers facility for disciplinary reasons. There was no evidencethat appellant presented a discipline problem or was a dangerto custodial personnel. At best, one mightinfer that appellant's housing assignment was in some wayassociated with her solicitation charge. Nevertheless, appellant maintains that the punishment heapedonherfor a crime which she had not beenyet found guilty was not in proportion to the "need"if there was one, to protect witnesses. In any event, if the "punishment"for the solicitation charged was that her telephoneaccess berestricted was appropriate -- which appellant certainly does not concede-- all other improper conditions of confinement were gratuitous, unnecessary, and aimed atbreaking appellant's body andspirit.” Respondentcontendsthat the conditions of appellant's confinementdid not so interfere with herability to communicate with counselor assist in her defense so as to constitute a violation of appellant's rights to due processoreffective assistance of counsel. (RB 76.). This is not so. In her opening brief, appellant outlined the onerous conditions of confinement to which she wassubjected in nearly 20 pagesof briefing. (AOB 89-117.) For example, while housed in Module 211, appellant's contention that no provisions were madefor colder weather were confirmedbytrial counsel who obtained a court order that appellant be provided with thermal underwear. (CT 23.) Appellant's lack of phone access not only impacted her access to counsel, but resulted in appellant * In this case, approximately two monthsafter her arrest, in April 2001, the prosecution applied ex parte, i.e. without notice given to appellant and her attorney and without her or her attorney having an opportunity to be heard, for an order terminating appellant's telephoneprivileges. (Supp. CT 1-6.) Appellant's telephone privileges were not reinstated until August 2003. In the interim, besides having no telephone access to counsel, appellant had few if any face-to-face confidential visits with counsel. And yet, the court's only concern wasvoiced to appellant's attorney who the court lamented would be "burdened"by havingto visit appellant at the jail. (RT 45.) being cut off from family, including her 11 year old daughter. (CT 196.) Trial counsel agreed that appellant's mental state had been impacted to the degree that appellant was unable to adequately assist him in case preparation. (RT 498.) Subsequent court proceedings confirmedthe restrictive and inhumane conditions appellant was subjected to in Module 211. (RT 484-487, 503-504, 514-519, 525-527, 530-550.) ” Whentheparties met approximately two monthsafter appellant hadfirst made thetrial court aware of these issues, none, but appellant's request to use the law library, which the court denied, were addressed or even commented on by the court. (RT 66- 89.) Respondentaddresses each of the three specific concerns raised by appellant which were at some point pretrial addressed by the court. These concerns were:(1) ? Appellant documented additional abusive conditions which included: No outside windows, only one small inside window onthe door which was, for some time, covered completely resulting in a totally enclosed cell (RT 516), no “face to face interviews” with defense counselor family, no access to tape recorded conversations (discovery) without a court order (CT 17), no telephoneprivileges (Supp. CT 1-6), monitoredvisits without appellant's knowledge(RT 19), intensifying "mental torment" and “vicious and despicable” treatment (CT 205-206), exposure to tuberculosis and other contagious diseases (CT 207), one showerevery six days (CT 207), no recreation time (CT 207), manipulation of medications (CT 207), being subjected to the sexual advances of male staff members while showering" (CT 207), 25% lighting (CT 208), temperature never over 60° (CT 208), being housedin a dirty and toxic smelling cell infested with mites, poisonousspiders andfleas (CT 208), being made to wear the same uniform and underpants for a week (CT 208), being made to wearthe same thermals for four months (CT 208), being made to use sameblankets for three to four months (CT 208), and no provisions madefor the cold weather (CT 208) appellant's access to counsel; (2) the tampering of legal mail; and (3) the lack of access to proper medical and mental health. (RB 76-79.) Because they concern the particularly onerousconstitutional violations visited on appellant as she tried to secure her right to counsel in the most seriousofall criminal cases, a death penalty prosecution, appellant's complaints that she was denied access to counsel and securelegal mail are contained in a separate argumentin appellant's opening brief. (AOB 119-124.) For the most part, respondent doesnotdirectly address the case law andfactual assertions madein that claim, but merely concludes the court addressed appellant's concerns, concluding as did the trial court that due to her own criminal behavior (RB 77), interference with appellant's rights was permissible. (RB 78.) Here again, respondentis wrong. Before this Court, appellant has fully documented the efforts she undertook to acquire limited telephoneaccess both to find new retained counsel and to communicate with the counsel with whom she ultimately was forced to proceedtotrial with in ArgumentIll (AOB 119-124), Argument i (AOB 86-89), ArgumentIV, regarding the court's failure to discharge retained counsel (AOB 125-142), and ArgumentV, regarding the court's failure to grant her Marsden motion. (AOB 142-180.) Appellantalsofully argued the case law supporting her requests for relief. For the most part, as indicated elsewherein this Reply, respondent simply concludes that because, at the timethetrial court addressed appellant's concerns (to the extent they were addressed), she faced a chargeofsolicitation to dissuade a witnessfrom testifying, the court was correct to deny appellant's requests for access to counsel. However, it is simply unreasonable that the trial court would curtail this most essential constitutional right simply because appellant faced a charge which involved the use of a telephone. As arguedin her opening brief, appellant’s ability to confer with counsel was severely restricted for all but three monthsof her nearly 3 year stay in countyjail. Additionally, appellant's right to counsel wasinfringed on by the trial court's denied telephoneaccessto herinvestigator, the frequent denial, for long periods of time, of “face-to-face” access to her counsel and investigator and the denialof private, confidential and timely access to counsel through the legal mail which was, without cause or justification, interfered with by jail staff. No showingthat the aboverestrictions were necessary in orderto provide for the reasonable security of the institution and/or for the reasonable protection of the public was made. There werenoallegationsthatthejail staff feared for custodial officer safety. The only safety concernrelied on by the court to restrict appellant's telephone access was appellant’s attempted “intimidation” of Palmira Gorham which tookplace a month after appellant's arrest and 2 1/2 years beforetrial began.* (CT 218-219.) > Appellant describes this as attempted because Palmira Gorham wasnot dissuaded from testifying and immediately reported appellant's telephonecall to the district attorney. 10 Appellant maintains that it was the court's obligation to ensure appellant's rights were protected. * Thatif the Los Angeles CountyJail was unable or unwilling to devise a method wherebyappellant could contact her attorney, the court had the ability to fashion any numberof ordersto assist herin first seeking new retained counsel and later in ensuring she had access to her trial counsel. It is all the more evident the court was required to protect appellant's rights given the antagonistic attitude her attorneys expressed toward her and the constant efforts of the prosecutorto disrupt the attorney-client relationship by invading this arena with secret motions and direct input whenthe attorney-client matters were heard. (RT 102.) Regarding the lack of proper medical and mentalhealth care, appellant hasfully argued the efforts she undertookto alleviate the torment and the neglect of both her * The California Codeof Judicial Ethics requires that a judge: “participate in establishing, maintaining, and enforcing high standards of conduct," and warnsthat the judge "shall personally observe those standardsso that the integrity and independenceofthejudiciary will be preserved" (Canon1), "respect and comply with the law andshall act at all times in a manner that promotes public confidencein the integrity and impartiality of the judiciary" (Canon 2), "require order and decorum in proceedings before the judge.” (Canon 3B(2)), "be patient, dignified, and courteous to litigants, jurors, witnesses, lawyers and others with whomthe judgedeals in an official capacity...."(Canon 3B(4)), "perform judicial duties without bias or prejudice. A judge shall not, in the performanceofjudicial duties, by words or conduct manifest bias or prejudice, including but notlimited to bias or prejudice based uponrace,sex,religion, national origin, disability, age, sexual orientation or socioeconomic status" (Canon 3B(5)), and "require lawyers in proceedings before the judge to refrain from manifesting, by words or conductbias or prejudice, including but not limited to bias or prejudice based uponrace,sex,religion, national origin, disability, age, sexual orientation or socioeconomic status against parties, witnesses, counsel, or others." (Canon 3B(6)). {1 mental and physical health suffered at the handsofjail staff in ArgumentIII, ArgumentII (AOB 86-124), and ArgumentVI (AOB 180-198) and ArgumentVIII (AOB 212-227) in her openingbrief (AOB 86-124, 180-198, 212-227), and feels no need to reassert this wealth of evidence which, for the most part respondent does not address. Appellant notes, however, that in no way did the treatment she received from the court satisfy the obligation that appellant receive timely and proper care. For example, respondent praises the court for respondingto trial counsel's contention that appellant's mental state had deteriorated thereby prompting the court's request for a mental status examine. However no such mental status examination was performed. (See Argument VI, AOB 180-198re: denial of hearing re: competency to proceed to trial.) Also, respondentpraises the court too for paying attention to appellant's complaints whenit stated: "If [appellant] knows what she needs, we'll order that (RT 417; RB 79.) However, this same court derided appellant when she explained she wassuffering serious mentalissues bystating: Isn't this kind of a catch 22 with a person whosayshe or she need psychological help is the one who's to be examined? In other words, how -- the pointis if you really needed psychological treatment, psychiatric help, | would think you'd be the last person to know aboutthat. It would be somebodyelse that would say somethingis strange about the things you're saying or what you're doing, we need to see what kind of mental health you need. You're the one saying you need mental help. (RT 631.) 12 And this same judge, who,in the above passage,forcefully explained "his Opinion" on how someone would presentif mentally ill, in the next breath claims to know nothing of mental health: Beyond that wheneverthe doctors and the doctors are the ones that need to evaluate her both physically and mentally, this court does not have a medical degree or psychiatric degree, so I'm really not qualified to say what's happening is appropriate or inappropriate....(RT 494.) As argued in her openingbrief, throughout the proceedings what emerged was the picture of a woman who,overthe course of three years of reprehensible treatment, predictably continued to decompensate mentally. (AOB 197.) Appellant maintains that placementof appellant in administrative segregation in a situation of sleep deprivation, physical and mental abuse, deliberate indifference to her welfare, and arbitrary deprivation of rights was intended to break appellant, or at least punish her for her alleged crimes. This housing assignment amountedto a sustained, low-intensity attack on appellant that deprived herof herability to participate in her defense. What few sincere objections were rendered by her defense counsel were not adequately addressedbythetrial court and ultimately the court came to blameappellant for the unconscionable situation in which she found herself. Manyof the conditions appellant suffered flowed from the unremitting hostility of custodial officers, who took it upon themselves to administer punishment to appellant while she was housed undertheir care. For example custodial officers 13 confirmed that appellant was housedin the mostrestrictive housing alternative, that appellant's cell had no windowswhichfaced outside and that the one window which faced thejail interior was covered. (RT 514-517, 525-527.) Confirming perhaps the most inhumanetreatment of appellant byjail staff, custodial officers were forced to confirm that appellant was in complete isolation becauseof the staff's practice of applying duct tape and/or a towel to block whatlittle light and sound came through the bottom of appellant's cell door. (RT 524, 541-542.) Additionally, interference with legal mail both to and from appellant and removal of legal materials from appellant’s cell were undertaken without cause. These repeated violations of her privacy and of the confidentiality of her legal materials created a permanent unease within appellant. The trial court undertook noefforts to determine whetherappellant’s repeated complaints about interference with herlegal rights occurred andif they did under what authority. The trial court undertook noefforts to remedythe interference with appellant’s mail and legal materials. The deleterious effects on appellant's mind and body from sexual-harassment, isolation, emotional abuse, ineffective medical treatment and arbitrary withholding of rights guaranteed by the state and federal constitution compromised her ability to assist in her own defense.(See ArgumentsII and II! AOB 86-124.) 14 The effort to ameliorate appellant's treatment preoccupied both counsel and appellantat different times throughoutthetrial, and prevented them from concentrating on the task at hand, of preparing appellant's defense. These conditions violated appellant's Fifth, Sixth and Fourteenth Amendment rights to due process of law,to assist in her owndefense, the effective assistance of counsel, and theright to a reliable guilt and penalty determination. They undermined every aspect of appellant's defense, and ensured that her conviction was obtained at a fundamentally unfair proceeding. IV. THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHENIT FAILED TO DISCHARGE APPELLANT’S RETAINED ATTORNEY AT HER REQUEST Respondent contendsthat "[t]here is nothing in the record to indicate that the trial court ever denied appellant's request to remove herretained counsel [Ward]," and for that reason, appellant's claim that the trial court committed reversible error whenit failed to discharge Ward at her request mustbe rejected. (RB 81-88.) Respondentis being obtuse, because howelseis this Court to interpret the trial court's refusal for monthsto grant appellant's request andits direct order to Ward to "continue to work on the case,"in spite of appellant's direction for him to stop? (RT 46.) Here, contrary respondent's mischaracterization of the efforts of the trial court to accommodate appellant's demand to replace her retained counsel as "extraordinary," the trial court forced appellant to be represented by Ward for more than eight (8) months [December 14, 2011 - August 13, 2012 (RT 10-11, 96; CT 187)] after herfirst request to replace him. 15 Although during that period of time appellant appearedin the trial court on six occasions and bothorally and in writing advised the court of her continued desire to replace Ward, rather than remove Ward, the court ordered him to continue to work on her case and delayed ruling on the matter. Moreover, in spite of appellant's written notice in January, 2002, that she wanted to use what remained of the retainer paid to Ward to pay for new counsel , over the next seven (7) months, Ward exhaustedall of the funds appellant had paid to retain him, leaving appellant unable to exercise her constitutional right to retain counsel of her choosing. It was not until August 13, 2002, after Ward requested to be relieved that the court was persuadedto vacatehis appointment. (RT 34, 45-46, 69, 74 [Ward: "| feel if they wanted to argue about [returning the retainer, they can go to civil court on a contract basis or they can go to the State Bar or whomeverthey wantto...." CT 195, 220-228.) Appellant and respondent agree on the applicable law (AOB at 125, RB at 86): A defendantin a criminal case has a constitutional right to retain counsel of her choosing, and to discharge retained counselas she seesfit. (People v. Ortiz (1990) 51 Cal.3d 975, 983.) Atrial court may deny a motion to discharge retained counselonlyif "discharge will result in ‘significant prejudice’ to the defendant[citation],orif it is not timely,i.e., if it will result in ‘disruption of the orderly processesofjustice’ [citations]." (Ibid.) Respondent adds that underfederallaw, "a trial court has 'wide latitudein balancing the right to counsel of choice against the needsof fairness’ and ‘against the 16 demandsofits calendar.'" (RB at p. 86 citing United States v. Gonzalez-Lopez (2006) 548 U.S. 140, 152.) However, respondentdoesnot argue appellant's claim should be denied becauseeither reason supported thetrial court's actions in the instant case. The record of appearancesafter appellant's first request to remove Ward demonstrates that the reasons employed to force appellant to continue to be represented by a retained attorney not of her choosing did notfall within that narrow justification of "significant prejudice to the defendant"or "disruption of the orderly processesof justice" sanctioned by thelaw. On December14, 2001, appellant advised the court that she was looking for new counsel. By this time, appellant had been represented by Wardfor three (3) months. During that period of time appellant had not spoken to Ward by telephone and Ward had not arrangedto visit with his client "face-to-face." (RT 14-17.) At this hearing, the prosecutor argued against appellant's use of a telephonefor any purpose, including to seek new counsel. Thetrial court advised appellant it would not reinstate appellant's telephoneprivileges, even to contact new counsel. (RT 14-17.) Because a criminal defendanthas a constitutional right to hire counsel ofhis choice (UnitedStates v. Ray (9th Cir. 1984) 731 F.2d 1361, 1365),” in the instantcase, ° This right is qualified because it may be curtailed to serve a “compelling purpose." (United Statesv.Lillie (9th Cir. 1993) 989 F.2d 1054, 1055-1056.) An example of a compelling purpose exists when a delay in the proceedings and the prosecution's interest in the promptandefficient administration of justice outweighs the defendant's need for new counselto adequately defend himself. (United States v. Kelm (9th Cir. 17 even assuming the trial court wasjustified in not permitting appellant access to a telephone to contact new counsel, it was not permitted to entirely ignore appellant's Sixth Amendmentright to counsel of choice. Although access to counsel would be more difficult than had appellant been permitted telephone access, neither the court nortrial counsel were entitled to abdicate their obligation to protect appellant's federal and state constitutional rights. ° Approximately two weekslater, appellant advised the court that lack of access to the telephone had seriously impacted her attempts to retain an attorney of her own choosing. Appellant sought the court's guidance on how to obtain appointed counsel should, after the next 30 days, her efforts to retain chosen counselfail. (CT 193.) On January 16, 2002, when the parties next met and appellant reasserted her desire to no longer be represented by Mr. Ward.’ The court explicitly recognized that there was no procedural reason why appellant could not retain new counselof her choosing, however, the court made no efforts to fashion a method by which that might be accomplished, advising appellant "it's up to you essentially...." (RT 34-36.) The matter was put over for approximately two more monthsso that appellant 1987) 827 F.2d 1319, 1322.) The court here expressly indicated there were no timeliness bars to removal of Ward.(RT 36.) 6 Appellant intendsto raise the issues oftrial counsel's abdication of appellantin this regard in collateral proceedings before this Court. ” By this time the court was awarethat appellant had notified Mr. Ward, in writing that he wasfired and requested that portion of the retainer that was unused be returned to her for the purposeof retaining new counsel. (CT 193-195.) 18 could continue, by whatever meansshe hadat herdisposal, to retain counsel of her own choosing. On August 1, 2002, a week after the prosecutor announcedits intention to seek the death penalty, Ward requested he be relieved. (CT 218, 220.) As appellant explained in her opening brief, Ward prepared a formal motion to be relieved which he served on the prosecution. (AOB 135.) In his motion, Ward expressly indicated that appellant was "unable to meetthe financial obligations to counsel...." (CT 222.) On August 13, 2002, the court granted Ward's motion to be relieved. (RT 96.) Here, the denial of the motion to discharge wasstructural error requiring reversal of the guilt and penalty phase judgments. Theright to counselis fundamental. "The right of one charged with crime to counsel may not be deemed fundamentalin some countries, butit is in ours." (Gideon v. Wainwright (1963) 372 U.S. 335, 344.) "The denial of a motion to substitute counsel implicates the defendant's Sixth Amendmentright to counsel...." (Bland v. California Department of Correction, supra 20 F.3d 1469.) Respondent cannothide behindthe lack of the specific words "your motionis denied" whenthedefacto result of the court's inaction in response to appellant's repeated oral and written requests over a period of more thaneight (8) months to remove retained counsel Ward so that she could retain new counsel of her choosing, aggravated by the court's order that counsel continue to work on the case, thus 8 In his motion, Ward divulged confidential attorney client communications, and disparaged appellant's character and conduct. (CT 220-228.) 19 completely exhausting the retainer paid, was to force appellant to proceed with a retained counsel, not of her choosing, in violation of her state and federal rights to counsel. Appellant is entitled to automatic reversal. V. THE TRIAL COURT ABUSEDITS DISCRETION IN DENYING APPELLANT'S MARSDEN MOTION FOR APPOINTMENTOF NEW COUNSEL Respondentclaims that "under the circumstances"thetrial court "properly exercised its discretion in denying appellant's Marsden’ motion." (RB 88.) Respondentis wrong. In her opening brief, appellant argued that her motion should have been granted because (1) her attorney was not providing adequate representation and (2) because she and counsel Houchin had become embroiled in an irreconcilable conflict. (AOB 142- 180.) Respondent addressed only the first ground and concludedthat as appellant's complaints "largely amounted to a disagreementovertrial tactics and generalized distrust in her attorney and whether he was prepared to gototrial" (RB 99), thetrial court properly denied appellant's motion. (RB 100.) In the instant case, neither appellant nor the court addressed appellant's contention that she and her attorney had become embroiled in an irreconcilable conflict. *° Appellant maintainsthat thetrial ° People v. Marsden (1973) 2 Cal.3d 118. 10 Respondent contendsthat the court "denied appellant's motion because appellant failed to demonstrate...that she and counsel had become embroiled in an irreconcilable conflict." (RB 100.) Respondentfails to cite to any portion of the record whichindicates that court denied appellant's motion on that ground, and appellant has found no portion of the record supporting respondent's contention. 20 court should have granted appellant's motion on both grounds that Houchin was not providing adequate representation and that she and Houchin had become embroiledin an irreconcilable conflict. A. Houchin's Failure to Provide Adequate Representation 1. The Court's Inquiry was Inadequate and Houchin didin fact provideineffective assistance of counsel Respondentargues that appellant’s case is distinguishable from cases wherethis Court has found error because appellant had a full opportunity to state her concerns and the court discussed those concerns determining the extent and quality oftrial counsel’s work. (RB 99-100.) Itis uncontested that appellant had an “opportunity” to voice her complaints at the Mardsen hearing. However, the trial court did not adequately conductits inquiry into the substance of appellant’s claims. Rather, the court based its finding on unsworn and unsupported statements of defense counsel-- statements which did not satisfy appellant's concerns and did not constitute a sufficient basis for denial of appellant's motion. Appellant clearly articulated the areas of counsel's representation where she did not understand the decisions he had made, the tactics he had chosen,orthe legal basis for his reliance on claiming he need not follow the suggestions or urgings she made. The first area concerned counsel's choice of Dr. Vicary as a mental health expert. Appellant rightly noted Dr. Vicary was recently impeached byhis actions in the 21 Menendezbrother murdercase, ** and thatalthough trial was a mere two monthsoff, Dr. Vicary and appellant had not yet met. (CT 483.) Trial counsel told the court Vicary would rely on the report of Dr. Romanoff who had previously examined appellant but because of damaging information contained in his report, could not be usedin the case. The court did not address the propriety of sharing a damaging report with a testifying expert. And, as might be expected by competent counsel, Dr, Vicary was impeached and forced to reveal extremely damaging statements of appellant's daughter which directly implicated appellant in her husband's murder. (See AOB 244-245.) Appellant wascorrect, too, that Vicary could not be properly preparedin so short of time. He was repeatedly impeached byhis failure to independently verify the information given to him by appellant. Thus, Houchin's decision to use Vicary was damaging to appellant and did not constitute effective assistance of counsel. (See AOB Argument X 243-246 detailing Vicary's testimony regarding appellant's daughter's alleged statements to investigators, and the prosecutor's argument based uponit at (RT 3760-3761).) Appellant expressed considerable doubt that Houchin was capable of handing the complexities of her case without assistance. She rightly noted that defendants facing capital chargesare entitled to ancillary services. Appellant understood the need to have u Lyle and Eric Menendez faced capital charges in Los Angeles County in 1996 whereit wasalleged that defense counsel convinced Dr. Vicary to alter his examination notes. 22 a defense team which included mental health specialists.” Withoutinquiring of defense counsel why he would not wantto or did not need to expand the defense team to comport with ABA Guidelinesi.e. seeking a tactical explanation for counsel's decision "to go it alone," the court announced to appellant that jn the court's opinion two attorneys, a penalty phaseinvestigator, and a mental health specialist were unnecessary. (RT 620.) Appellant understood that her mental state was relevant at both the guilt and penalty phasesof the trial. She expressed her(correct) belief that expert assistance regarding herstate of mind could be introducedasto thespecific intent element of the charges she faced. She also expressed herbelief that although she "could"testify to her mental state, that "might not be the most effective way to explain it to the jury." (RT 630-631.) Without any evidence thattrial counsel had undertaken the necessary investigation so as to makea tactical decision not to offer expert testimony on the issue of appellant's specific intent, the court concluded Houchin’s decisions were madefor tactical reasons. Thisis in spite of the fact that, as the court recognized, some of the most damaging evidence against appellant -- the video made by undercoverofficers-- '2 2003 ABA Guideline 4.1, entitled "The Defense Team and Supporting Services, which wasin place at the time of appellant's jurytrial, provided for a defense team that provided high quality legal representation, and which should consist of no fewer than qualified attorneys, an investigator, and a mitigation specialist and should haveatleast one memberqualified by training and experience to screen individuals for the presence of mental or psychological disorders or impairments. 23 would lead a reasonablejury to conclude appellant was"intelligent, charming,lucid, very persuasive" and that her mind was working "very well." (RT 631.) °° As noted above, Houchindid in factfail to represent appellant adequately. His decision to use Vicary was disastrous. Vicary wasill prepared. He did notverify the information provided to him almost entirely by appellant and was impeached onthat very shortcoming. Having been provided by Houchin with a prior doctor's report, Vicary offered some of the most damaging testimony against appellant -- that she intentionally enlisted the assistance of her 9 year old daughterto kill her husband. Vicary did not testify to the any aspectof appellant's mental state which might negate the specific intent element of the crimes with which she was charged. Houchin also gave appellant erroneousinformation regarding presentation of mental health evidence. Appellant's mental state was relevant at both the guilt and penalty phasesoftrial. Yet, Houchin advised appellant that only could testify to her mental state. Houchin told the court: "She wishes that a doctor take the stand and in herplace testify as to whatit was that caused herto say and do thosethings which the court has been apprisedofin different testimony, and also the videotape the court has also reviewed. Diminished capacity is no longer a defense. I've indicated to her that '’ Of course since appellant's specific intent was at issue, trial counsel's representation only appellant could offer evidence of her mental state was wrong. Moreover, any suggestion that only she could offer evidence of her mental state would FORCE appellant to take the stand and subject herself to cross examination against her or forgo offering evidence of her mentalstate all together. 24 certainly if there are some things going on in her head, she has every opportunity to take the stand and explainto the trier of fact whyit is that she did the things that she did. She can get on the stand and she can contradict the truthfulness of different testimonies that we have heard here and what| anticipate will be other testimony after this trial begins." (RT 639.) But it is not legally correct that only appellant could offer such evidence. Moreover, Houchin's "advice" to appellant that only she couldtestify as to her mental state put appellant in the no win situation of either forgoing mental health testimonyentirely or subjecting herself to cross examination. B. Evidence of an Irreconcilable Conflict 1. The Court's Inquiry was Inadequate and the Parties had Become Embroiled in an Irreconcilable Conflict. Thetrial court’s inquiry into appellant’s reasons for requesting new counsel was insufficient. In fact, it was nonexistent. As recognized by this Court, a trial court must “carefully inquire into defendant's reasons for requesting substitution of counsel.” (People v. Memro (1995) 11 Cal.4th 786, 857, citing People v. Fierro, (1991) 1 Cal.4th 173, 206.) Becausethetrial court did not carefully inquire into appellant’s request to substitute counsel, the court could not assess the extent of the breakdownin the attorney-client relationship. As noted above,at best, the trial court conducted a perfunctory inquiry of appellant's assertions of inadequate representation. Moreover, contrary to respondent's claim, the court did improperly rely heavily On its own past personal experience with appellant’s trial counsel. The court vouched 25 for Mr. Houchin and discounted appellant's very real concerns that she was not receiving adequate representation and that she and Houchin were embroiled in an irreconcilable conflict. The court relied, too, on its erroneous and unsupported conclusions that appellant was manipulating the legal system (a seed planted by the prosecution who had noright to be present or express any opinion regarding appellant's legal representation (RT 102)), that appellant "didn't like" the appointed public defender (who,in fact, was required to withdrawafter declaring a legal conflict), "didn't like" her retained counsel (who appellant had no duty to retain whethershe "liked" him or not), and caused Mr. Yamamoto, one of the "finest attorney's" he had ever seen to "for some reason” declare a conflict and withdraw, as groundsto deny the motionto substitute appointed counsel. (RT 643-646.) Appellant clearly indicated to the court that there was a grave conflict between her and her appointed counsel Houchin. She requested a hearing based on "conflict." (CT 482.) She told the court that there had been a "complete breakdownof trust and conflicts of interest." (CT 483; RT 619.) She advised the court that the relationship had deteriorated to the point that they were “at each other's throat now.” Appellantfelt counsel wasjust pushingto get things over with. (RT 626-627.) Appellant told the court that the two were "butting heads." (RT 629.) Contrary to the court’s conclusion that appellant was determined notto get along with any attorney, appellant explained that for over two years, she had worked 26 with and attemptedto place trust in Houchin. (RT 631.) Simply put, there was no working attorney-client relationship between appellant and Houchin. Appellant told the court she did not understand what he wasdoing, his approach, or why he was making the decision he was making. (RT 633.) Althoughtrial counsel admitted to there being difficulties between appellant and him (RT 639), the trial court failed to inquire into this ground for replacing counsel. For the reasons stated above and in appellant's opening brief the Marsden motion should have been granted, and reversalis required. Vi. APPELLANT'S STATE AND FEDERAL DUE PROCESS RIGHTS WERE VIOLATED BY THE DENIAL OF ANY MEANINGFUL HEARING ON HER COMPETENCY TO PROCEEDTO TRIAL Respondentdisagrees with appellant's contention that she was denied a meaningful hearing on her competencyto proceed to trial. (RB 100-108.) Although respondent acknowledgesthat appellant's competency to proceed to trial was a recurring theme for more than a year and that the court did in fact order a psychiatric evaluation of appellant (RB 106-107), the gist of respondent's argument appears to be that although no actual competency hearing took place and no psychiatric report was forthcoming, the recitation by "the program director for women's health in thejail" that appellant had been receiving treatment for depression and anxiety once every three weeks, was somehow adequatetosatisfy the statutory requirements of Penal Code 27 section 1368 and appellant's state and federal rights of due process to be competent to stand trial. (RB 107-108.) Respondentis very wrong. Appellant and respondent agree that underfederal law, the conviction of a defendant whois legally incompetentviolates the federal constitution. This is so becausethe conviction of a person while legally incompetent is a violation of federal substantive due process and requires reversal. (Pate v. Robinson {1966) 383 U.S. 375, 378; Medinav. California (1992) 505 U.S. 437, 453; People v. Pennington (1967) 66 Cal.2d 508, 511.) In Riggins v. Nevada (1975) 504 .S. 127, 139-40, Justice Kennedy described the fundamentalnatureof the right of competency: “Competenceto standtrial is rudimentary, for upon it depends the main part of those rights deemedessential to fairtrial, including the right to effective assistance of counsel, the rights to summon,to confront, and to cross- examine witnesses, and the right to testify on one’s own behalf or to remain silent without penalty for doing so.” (/d., at pp. 139-40, conc.) The parties agree too that underCalifornia law, criminal proceedings may not be maintained against a defendant whois mentally incompetentto stand trial. Under California law, a defendantis mentally incompetent"if, as a result of mental disorder or developmentaldisability, the defendant is unable to understand the nature of the criminal proceedingsor to assist counsel in the conduct of a defensein a rational manner.” (Pen. Code §1367.) This statutory definitionis compelled under the federal due processclause.In Dusky v. United States (1960) 362 U.S. 408, the Court stated that to be competent to 28 stand trial, the accused must(1) be rational; (2) have a sufficient ability to consult with counsel with a reasonable degree of rational understanding; and (3) have a rational and factual understanding of the proceedings. In Drope v. Missouri (1975) 420 U.S. 162, 171, the High Court added a fourth prong to the competency requirement: the accused must have the ability to assist counsel in preparing his defense. (See also Medinav. California, supra, 505 U.S. at 452 [the defendant'sinability to assist counsel can be, in andofitself, probative evidence of incompetency].) (AOB 180-182; RB 104-106.) In the instant case, appellant, defense counsel, and the court each expressed doubtas to appellant's mental state and its impact on herability to stand trial. (CT 122, 412-413; RT 416-417.) Defense counsel's concerns, at the August 28, 2033 pretrial hearing, directly related to appellant's present ability toprepare for trial which was scheduled to begin in less than two (2) months: Well, my client, and | should say | have concernsafter speaking with myclient. | have seen certainly a change in her demeanor, and an onsetof that has been within the last two weeks. This is certainly additional or different than what they believed they've been treating herfor the last two years. (RT 416-417.) Then: I'd like for someoneto sit down and talk to her and see what her mentalstateis. I'm having a difficult time even when | go downto see her to keep her focused on things. Her emotionalstate is certainly not conducive to preparing for this trial. (RT 417.) The next day, further discussions were had regarding appellant's mental condition. Defense counsel agreed with appellant's representations to the court that 29 she wasnotable to assist him in trial preparation. (RT 491, 498.) The court was compelled to anddidin factinitiate competency proceedings. It specifically recognized that a psychiatric evaluation was required, requested one be performed and that a report be prepared for the court. (RT 494- 5; CT 442-443.) [T]he doctors and the doctors are the ones that need to evaluate her both physically and mentally, this court does not have a medical degree or psychiatric degree, so I'm really not qualified to say what's happeningis appropriate or inappropriate, and that's why we're talking about doing a better order. (RT 494.) The court's minute order specified appellant receive a "psychiatric evaluation" and that a report be provided to the court by September 15, 2003. (CT 442-443.) In spite of the court's order, as respondent must admit, no evaluation or report followed. Instead, on September 15, 2003, at a pretrial hearing concerning appellant's conditions of confinement (RT 503), internal jail staff advised the court of the counseling and prescriptions appellant was currently receiving. (RT 505-509; RB 107.) In the instant case, both defense counsel and the court expressed doubtsas to appellant's competency to stand trial. Defense counsel's primary concern wasthat appellant was unable to assist him in the preparation of her defense. In spite of the court's order that appellant undergo a "psychiatric evaluation" (CT 442-443), no evaluation was undertaken. Moreover, none of the testimony at the hearing on appellant's conditions of confinement addressed appellant's inability to assist her '* Respondenterroneously refers to this discussion as "an in camera competency hearing.” (RB 107.) 30 attorney in preparation for her capital trial. (See People v. Superior Court (Campbell) (1975) 51 Cal.App.3d 459 [The test of a Penal Code section 1368 proceedingis the capacity to cooperate....].) The testimony addressed only the medications appellant received and the frequencyofvisits by mental health personal. Moreover, the focus of the hearing was whether, dueto the isolating aspects of appellant's housing assignment, whetherit might be changed and whetherappellant's access to counseling could be increased. (RT 505-513.) Respondentcontendsthat the nature and extent of appellant's participation in the proceedings demonstrated that she understood their purpose and did not provide substantial evidence of incompetency. Respondentis wrong. Foremost, the question of appellant's competency did not concern whether she understood the proceedings, but whethershe hadthe capacity to assist her attorney. Additionally, as argued in her opening brief, appellant's mental deterioration waslikely in part brought about by her conditions of confinement. Despite the recognition by the court and counsel that a psychiatric evaluation and a hearing on appellants’ competency was needed, none waseverheld. Thetrial of a mentally incompetent defendantis a denial of due process and constitutes per se reversible error. (Dusky v. United States (1960) 362 U.S. 402; James v. Singletary (11thCir. 1992) 957 F.2d 1562, 1571.) 31 Vil. THE TRIAL COURT ERRED IN PERMITTING THE INTRODUCTION OF IMPROPER DEMEANORTESTIMONY In her opening brief, appellant argued that the trial court improperly permitted various witnessesto offer their opinion as to appellant's demeanor. (AOB 198-212.) Respondentcontendsfirst, that due to trial counsel's failure to object to the opinion testimony of each witness, the argument has been waived, and that second,the testimony regarding appellant's demeanor was properly admitted. (RB 113-118.) A. This Court Should Address Appellant's Claim on its Merits Citing to a numberof cases, respondentnotesthat this Court has held that a failure to object to the qualifications of a witness offering opinions based ona special skill, training, and experienceattrial forfeits the issue on appeal. (RB 113 citing People v. Bolin (1998) 18 Cal.4th 297, 321; People v. Williams (1997) 16 Cal.4th 153, 194-195; People v. Roberts (1992) 2 Cal.4th 271, 298.) However, respondentalso notesthatin People v. Zamudio (2008) 43 Cal.4th 327, this Court advised that while the defendant's failure to make a timely and specific object on the ground asserted on appeal doesin fact make that ground not cognizable, no particular form of objection is required. Rather, the objection must "fairly inform thetrial court, as well as the party offering the evidence,of the specific reason or reasons the objecting party believes the evidence should be excluded, so that the party offering the evidence can respond appropriately and the court can makea fully informedruling." (/d., at p. 354, citing People v. Partida (2005) 37 Cal.4th 428, 435; RB 113-114.) 32 In Partida, the question before this Court was whethera trial objection on Evidence Code section 352 groundspreserved the appellate argument that admitting the evidence violated a defendant's federal due processrights and,if the argument was preserved, under whatcircumstanceserror of this nature violated due process. (People v. Partida, supra, 37 Cal.4th at p. 431.) In that case, the defendant objected to gang evidenceattrial on the ground that it should have been excluded under Evidence Code section 352. He did notobject at trial that admitting the evidence would violate his due processrights. (/d., at 433.) This Court concluded thata trial objection must fairly state the specific reason or reasons the defendant believes the evidence should be excluded. If the trial court overrules the objection, the defendant may argue on appealthat the court should have excluded the evidencefor a reason asserted at trial. A defendant may not argue On appealthat the court should have excluded the evidence for a reason not assertedattrial. A defendant may, however, argue that the assertederrorin overruling the trial objection had the legal consequence of violating due process.(Ibid.) In People v. Zamudio, the question before this Court concerned the defendant's ability to raise constitutional objections to the admission of prejudicial laboratory technician testimony on appeal when noneof those constitutional objections had been raised below. (People v. Zamudio, supra, 43 Cal.4th at p. 353.) Recognizing that Zamudio's constitutional arguments were "cognizable only to the extent they [did] not involvefacts or legal standards different from those defendant presentedto thetrial 33 court, citing Partida, this Court concluded that zamudio could not argue on appealthat constitutional provisions required exclusion of the evidence for reasons other than those articulated in his argumentattrial. (/bid.) In the instant case, defense counsel objected to the prosecutor's questions that ultimately led to Detective Steinwand's testimony regarding appellant's demeanorafter she allegedly realized that law enforcement knew she had beenlying about the circumstances of her husband's death (RT 229-231); objected to Officer Sharpe's testimony that appellant's demeanor was unusual and rehearsed (RT 1785); objected to Frank's sisters' testimony that appellant's demeanorwasodd,indifferent and without emotion (RT 1816-1817, 1825, 1876-1881); objected to insurance agent Marracino's testimony that appellant's demeanor was odd and emotionless (RT 1864-1865); and objected to Sergeant Wisley's testimony that appellant's demeanor was odd andthat appellant was more concerned aboutlife insurance money than herloss (RT 1915-1917, 2029-2030.) On two occasions, defense counsel's objections on the grounds of speculation were sustained. (RT 231, 1825.) Respondent argues that the above mentioned demeanor testimony was properly admitted. (RB 114-117.) This is not so. The demeanortestimony described above and in appellant's opening brief was irrelevant, without foundation and based on speculation. (AOB 204-209.) In each instance, the prosecutor sought to admit appellant's response to the circumstances of her husband's death and/or questions put 34 to her by law enforcement testimony to demonstrate appellant's character, guilty state of mind and malice toward her husband. However, none of the witnesses had any bases of knowledge to determine how,if in any way, appellant's responses, demeanor, or composure wasindicative of some conclusion about her involvement in her husband's death. These witnesses simply did not know appellant and therefore had no basis to draw anyrelevant conclusion about her individual responses or demeanor. Given the fact that trial counsel objected on grounds of speculation and because both the lower court and the prosecutor understood that the objection was groundedin each of the witness’s lack of ability or knowledge to draw conclusions on how appellant might respondin anygiven situation, the claim is not waived and admission of the evidence waserror. Respondentargues that evenin the admission of the demeanor evidence was erroneous, the error was harmless. (RB 117-118.) Appellant disagrees. Evidence that several witnesses concluded appellant wascold, calculating and indifferent to her husband's death and suffering was relied on by the prosecutor to convince the jury to find appellant guilty of cold bloodedfirst degree murderfor financial gain and that she was deserving of the death penalty. (RT 3596, 2659-2600.) This error was not harmless beyond a reasonable doubt. 35 Vill. EVIDENCE OF JUDICIAL BIAS REQUIRES REVERSAL OF APPELLANT CONVICTIONS AND DEATH SENTENCE Respondentcontends that appellant's argument that evidenceofjudicial bias requires reversal should be rejected on two grounds,first, that the error has been waived and second that no judicial bias occurred. (RB 118-123.) Respondentis wrong. Although this Court has held that a claim of judicial bias is waived if not made below,this Court has reached the merits.of those claims even when waiver has been found. (People v. Farley (2009) 46 Cal.4th 1053, 1110.) For several reasons, the instant case is one whichis appropriate to decide on the merits. As a general rule, an appellate court will not reach an issue that was notraised in the trial court. (See Doers v. Golden Gate Bridge ete. Dist. (1979) 23 Ca1.3d 180, 184, fn. 1.) However, the rigidness of this general rule may inappropriately shield from correction miscarriagesof justice and fundamental unfairnessin trials. Firm adherenceto the general rule can result in a "monstroussacrifice of justice on the altar of a commonlaw procedural tradition...." (Sunderland, The Problem ofAppellate Review (1927) 5 Tex. L. Rev. 126, 141.). As alluded to in appellant's opening brief and as will be argued thoroughly in appellant's petition for a writ of habeas corpus, appellant's trial attorney was complicit in the trial court's actual bias and/or appearance of bias against appellant. It is unreasonable to expect trial counsel to have recognized the court's bias, much less 36 undertaken measures to remedy it. Waiver should not prevent this court from reaching the merits of appellant's claim. Generally speaking, appellant and respondent agree on the applicable law. (AOB 213-214; RB 118-119.) A criminal defendant has a due processright to an impartial trial judge underboththestate and federal constitutions. (See People v. Rundle (2008) 43 Cal.4th 1067, 1111.) These due process rights guaranteethata litigant shall proceed before an impartial and disinterested tribunal in order to preserve "both the appearanceandreality of fairness." (Marshall v. Jerico, Inc. (1980) 446 U.S. 238, 242.) In her openingbrief, appellant cited to comments contained in pages upon pages of the appellate record which demonstratethetrial court's bias by its comments and lack of response to appellant's pleas to have the court intercede to protect her basic humanandlegal rights. (AOB 216-226.) For the most part, respondentignores the court's actual commentsandshifts the "blame" to appellant [RB: 120: "appellant appeared to be manipulating the legal system’ "appellant largely has herself to blame"; ‘ “appellant's endless complaints"], concluding appellant was completelyat fault, and absolvesthetrial court of any wrongdoing. Both ignorethetrial court's obligation to ensure appellanta fair trial. As noted in Canon 1 of the CodeofJudicial Ethics, "[a]n independent, impartial, and honorable judiciary is indispensable to justice in our society. A judge should participate in establishing, maintaining, and enforcing high standards of conduct, and 37 shall personally observe those standardsso that the integrity and independenceof the judiciary will be preserved. Canon B (4) requires that a judge "be patient, dignified, and courteoustolitigants..."with whom the judge dealsin an official capacity. Even the appearanceofbias is to be avoided. (See Canon B (5).) Thetrial court's bias against appellant can be traced backto thefirst time appellant approached the court seeking to discharge her retained counsel and asking for telephone access so that she could contact new counsel. At this point appellant had not had telephoneaccessfor nearly 8 months. Respondent contends that whenappellant requested telephoneaccessat that time, the court "simply advised appellant that the issue had already been decided, and that the position was not going to change...." (RB 120.) Although the court did in fact make this comment,thatis notall it said, and what it said and howit ruled, as discussed below, demonstrate the completelack of effort by the court to protect appellant's right to counsel. Within two monthsof appellant's arrest, at the request of the prosecution at an ex parte hearing to which appellant wasnot a party, was not represented by counsel and whichtookplace before a judge other than appellant'strial judge, that appellant's telephoneprivileges were terminated. (CT 189; Supp. CT 1-2; RT 192.) Nearly eight (8) monthslater (and nearly nine monthsafter the alleged dissuading act took place), appellant advised the trial court she wanted to fire retained counsel and retain new 38 counsel. (RT 14-17; CT 33-34.) The recordis clear that appellant had quietly accepted the punishment meted outfor heralleged solicitation act until she desired to hire anew attorney. Evenso, the trial court never permitted appellant or her counsel a hearing on the issue of reinstatement and worse, when appellant addressed the court, contrary to respondent's characterization that the court "simply advised" appellant it would not revisit appellant's concerns with counsel, the court launched into a personal attack which did not leave any room for an impartial discussion of the matter. The Court: I'm not going to jump in here and at your word decidethatI'm going to change your housing andgive you free access to the telephone. | meanit does take somelevelof intelligence to get to this pointin life where you're sitting as a judge in Superior Court and you have the poweroflife and death over a defendant. | don't know how youthink you're going to argue your wayinto somethingthat's already been decided with regard to your housing and telephoneaccess. It's amazing to me that you would assert that position, given the charge of against you of trying to dissuade witnessesin a case involving special circumstances of murderfor financial gain and torture murder,| believe,is the other one. (RT 20-21.) Respondentalso incorrectly characterizes the court's treatmentof appellant with regard to her attemptsto fire retained counsel and find new counselto retain as proper responsesto appellant's attempts to manipulate the legal system. (RB 120.) In addition to the demeaning,belittling, hostile, and'rude treatment of appellant at each instance whereshe attemptedto discuss her constitutionally guaranteed right to counsel, the court relied on misconceptions, and wrongly permitted the prosecuting attorney to weigh in on appellant's right to counsel. (See AOB 217-220.) For example, appellant did 39 not "fire" the Office of the Public Defender, that office declared a conflict. (CT 182.) She “had every right to discharge retained counsel Ward, and Yamamoto moved to withdraw, appellant did not move to have him discharged. Also, appellant was not charged with torture (RT 21), multiple appointed counsel did not ask to be relieved (RT 128), appellant was not housed in Module 211 becauseofthe solicitation charge and she was never housed there because she wasa disciplinary problem (RT 643-644.) In addition, the trial court expressedits bias against appellant in numerous hearings on issues appellant rightly put beforeit for it. For example, the court did nothing to remedy the tampering with of appellant's legal mail, did little to remedy the horrendous conditions of appellant's confinement, did not remedy thelack of contact appellant had with her attorney, did not fairly hear her motion to fire retain counsel and wentso far as to orderthe exhausting of her entire retainer, expressed the false opinion that two attorneys were never necessary in a death penalty case, did not follow through with orders that appellant receive a mental examination, and solicited the prosecutor's opinion on confidential matters. Most of appellant's concerns, while properly brought to the attention of the court, were not acknowledgedor addressedatall. (See AOB 221- 226.) Not only wasthetrial court biased against appellant, but it showed bias in favor of the prosecution. For example, the court permitted the prosecutor's requestfor a post conviction hearing in order to preserve the convictions by permitting, without 40 authority, a post-conviction and outside the presence of the jury, production of additional testimonial evidence. (AOB 224-226; RT 3894-3896, 3935-3970.) Even respondent must concedethat the court permitted the prosecution to "finish taking the evidence" on a circumstance in aggravation. Respondentcites no authority for the propriety of this unheard of impromptu extensionofa jury trial. (RB 122-123.) On appeal, this Court must assess whetherany judicial misconduct or bias was so prejudicial that it deprived defendantof "'a fair, as opposed to a perfect,trial.’ “(People v. Snow (2003) 30 Cal.4th 43, 78 quoting United States v. Pisani (2d Cir. 1985) 773 F.2d 397, 402.) Here, appellant did not request a perfecttrial, only one which wasfair and just and at which she wasafforded herconstitutional rights, including access to counsel, her right to confrontation, an unbiased judge and her right to have a jury decide the evidence by whichthe prosecution sought to use to execute her. IX. APPELLANT WAS DEPRIVED OF HER RIGHTS TO DUE PROCESS, TO A FAIR TRIAL AND TO HER RIGHTTO BE PRESENT THE TRIAL COURT’S ERROR IN CONDUCTING PROCEEDINGSIN APPELLANT’S ABSENCE Respondentarguesthat appellant's rights were not violated by her absence from certain proceedings. In fact, respondent boldly asserts that appellant had "no right to be present at the proceedings in question." (RB 123-130.) Respondentis wrong. Underthe California Constitution (art. I, section 13) and as codified in Penal Code section 1043, a defendantat a felony trial must be “personally present at thetrial.” Penal Code section 1043 subd.(b) recognizes the special need to protect the right of 41 capital defendants to be personally presentat trial. That code section states in pertinent part: "The absence of a defendantin a felony case,after trial has commencedin his presence shall to prevent continuing the trial to, and including, the return of the verdict in any of the following cases:....(2) any prosecution which is not punishable by death in which the defendantis voluntarily absent. (Pen. Code sec. 1043 subd.(b) emphasis added;(See, e.g., People v. Robertson (1989) 48 Cal.3d 18, 60.) Likewise, underthe federal Constitution, every defendant “is guaranteed the right to be present at any stage of the criminal proceeding thatis critical to its outcome if his presence would contribute to the fairness of the procedure.” (Kentuckyv. Stincer (1987) 482 U.S. 730, 745; Faretta v. California (1975) 422 U.S. 806, 819, fn. 15 [accused entitled “to be presentat all stages of the trial where his absence might frustrate the fairness of the proceedings”].) The right to be present also constitutes an elementof the rights to confrontation and due process guaranteed underthe Sixth and Fourteenth Amendmentsto the United States Constitution. (See Drope v. Missouri (1975) 420 U.S. 162, 171 [trial of an incompetent defendant violates due process, as does trial held “in absentia”); Taylor v. United States (1973) 414 U.S. 17, 19 (per curiam)[right to be presentat trial derives from right to testify and rights under the Confrontation Clause].) The right to be present extends “to every stage ofthetrial, inclusive of the empanelling of the jury and the reception of the verdict and . . [is] scarcely less important to the accused than theright totrial itself.” (Diaz v. United States (1912) 223 42 U.S. 442, 455.) A “critical stage” is any “step of a criminal proceeding” that holds “significant consequences for the accused.” (Bell v. Cone (2002) 535 U.S. 685, 695.) If a defendantis denied his right to be presentat any critical stage of the proceedings, reversal is automatic if the defendant's absence constitutes a “structural error” that permeates “[t]he entire conductofthetrial from beginning to end,” or “affect[s] the framework within whichthetrial proceeds.” (Arizona v. Fulminante (1991) 499 U.S. 279, 309-310.) The alternative to structural erroris “trial error” which occurs “during the presentation of the case to the jury, and which maytherefore be quantitatively assessed in the context of other evidence presented in orderto determine whetherits admission was harmless beyond a reasonable doubt.”(/d. at 307- 308.) In People v. Ochoa (2001) 26 Cal.4th 398, this Court set forth the rule in different language, but describing the same substantiveright, stating: A criminal defendant’s federal constitutional right to be presentattrial, largely rooted in the confrontation clause of the Sixth Amendment, also enjoys protection through the due process clause of the Fifth and Fourteenth Amendments wheneverhis presence has a relation, reasonably substantial, to the fullness of his opportunity to defend against the charge, but not when presence would be useless, or the benefit but a shadow.(/d. at p. 433 [citations and interior quotation marks omitted].) In the instant case, appellant was excluded from critical stages of the proceedings. 43 As arguedin her opening brief, appellant was excluded from two hearings from during which discussions about her Sixth Amendmentright to counsel was had. During both of these hearings, matters of her right to counsel, which would have "significant consequences"for appellant were discussed. Had appellant been permitted to be present and address the court she could have explained thatas the trial date loomed, she had not had an adequate opportunity to assist her appointed counselin the preparation of her defense. By this time, appellant had been denied access to counsel for more than two years. Respondent contendsthat appellant had noright to be present because these hearings were merely continuations of hearing concerning "legal or procedural questions” and because defense counsel waspresent and "fully able to represent appellant's interests." (RB 128, 129.) Appellant begs to differ. These hearings concerned appellant's fundamental state and federal constitutional rights regarding access to counsel. The only reasonthese hearings were "continuations" of prior hearings was that appellant tenaciously foughtfor herrights in spite of the trial court’s dismissive treatmentof her efforts. Appellant's right to full access to the attorney appointed to represent herin capital proceedings is not some procedural or inconsequential legal matter. As for trial counsel's ability to represent appellant in her absence, as argued elsewhere,trial counsel showedlittle interest in developing and maintaining the type of attorney-client relationship necessary to successful 44 representation in a capital case. (See 2003 ABA Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases: [Commentary: [C]ounsel must consciously work to establish the special rapport with the client that will be necessary for a productive professional relationship over an extended period of stress].) 1 Appellant had a state and federally guaranteed right to counsel. Her unsuccessful efforts to exercise those rights were never properly addressed. Even more outrageous, ’ out of her presence and with noreal representation by her attorney of record, the prosecutor’s speculated about what appellant might or might not doif permitted access to counsel]. As a result, during these hearings, appellant was denied both effective representation and her ownpresenceatthis critical proceeding. (AOB 231.) Appellant wasalso excluded from a later hearingat which witness Gwendolyn Hall was ordered to appear. In response to respondentclaim that this proceeding was a '? Guideline 10.5 A and C entitled "RELATIONSHIP WITH THE CLIENT"provide respectively that "A. Counselatall stages of the case should make every appropriate effort to establish a relationship of trust with the client, and should maintain close contact with the client," and C. "Counsel atall stages of the case should engagein a continuing interactive dialogue with the client concerning all matters that might reasonably be expected to have a material impact on the case, such as: 1. the progress of and prospects for the factual investigation, and what assistance the client might providetoit; 2. current or potentiallegal issues; 3. the development of a defense theory; 4. presentation of the defense case; 5. potential agreed-upondispositions of the case; 6.litigation deadlines and the projected schedule of case-related events; and 7. relevant aspects of the client’s relationship with correctional, parole or other governmental agents(e.g., prison medical providers or state psychiatrists)." 45 "routine administrative matter" (RB 129), appellant makes two observations. First, by comparison to the routine ordering backof a witness, it is obvious that appellant's right to be present when her right to counsel wasatissue, as argued above,wasin fact a critical stage of the trial. Second, intentionally absenting appellant from these aspects of hercase is yet another example whichleads to the conclusion that by conductof defense counsel, the prosecution and by orderof the court, appellant was madeto be a mere spectatorto her capital trial. No harmlesserrorfinding is permissible in this case because appellant was absented without her consent at proceedings which involved herright to a defense attorney. These hearings occurred a mere month orso before hercapitaljury trial began. This resulted in the denial of appellant's right to due process and to fairtrial, confrontation, and a reliable guilt and sentencing determination by an impartial jury, in violation of appellant's rights under the Fifth, Sixth, Eighth, and Fourteenth Amendmentsto the United States Constitution, and article |, sections 7, 16, and 17 of the California Constitution. (See Zant v. Stephens (1983) 462 U.S. 862, 879, 103 S.Ct. 2733, 77 L.Ed.2d 235; Woodsonv. North Carolina (1976) 428 U.S. 280, 304, 96 S.Ct. 2978, 49 L.Ed.2d 944 [plurality opinion]; Johnson v. Mississippi (1988) 486 U.S. 578, 584- 585, 108 S.Ct.1981, 100 L.Ed.2d 575.) 46 x. APPELLANT’S 6'" AMENDMENTRIGHT TO CONFRONT WITNESSES UNDER Crawford v. Washington WAS VIOLATED BY THE TRIAL COURT’S ADMISSION OF EVIDENCE Appellant argues that her Sixth Amendmentright to confront the witnesses against her was violated whenthetrial court admitted the handwritten notes and statements of Gwendolyn Hall and her daughter Autumn's statements about Gatorade. (AOB 233-257.) *° Respondentdisagrees with each of these arguments. (RB 130.) Respondentis wrong. A. The Handwritten Notes and Recorded Statement of GwendolynHall through the Testimony of Detective Steinwand Instead of testimony by GwendolynHall, through the testimony of law enforcement, taped interviews with law enforcement and documentsallegedly authoredby Hall, the prosecution introducedhighly incriminating evidence which appellant had no ability to confront. (See AOB 237-241.) The gist of respondent's argumentis that, although GwendolynHall was properly declared an unavailable witnessfor her purported lack of memory regarding her interactions with appellant, she wasnevertheless present and subject to cross examination. Respondent’s argumentis meritless and its conclusion that Hall’s “presence”at trial was sufficient to satisfy appellant’s right to confrontation must be rejected. (See RB 139-139.) '° Appellant recognizes this Court has since resolved additional Crawford claims made by appellant in her opening brief, contrary to appellant's position. 47 Here, as recognized by respondent, Hall’s interview with law enforcement(which respondentdoesnotarguefails to satisfy that prong of Crawford v. Washington (2004) 541 U.S. 36, which requires the evidence admitted be “testimonial,”) was providedto the jury at the guilt phase when the prosecution played the entire taped interview as narrated by and cornmentedonby Detective Steinwand. Appellant had no opportunity to cross examine the declarant, Hall, about this evidence. Moreover, notes taken by Hall and given to law enforcement were introducedinto evidence, again, with a running commentary by Steinwand.(RT 2244-2274, 2278-2292, 2252, 2254, 2256, 2257, 2260, 2246-2248, 2251-2252; RB 1354-136.) At the penalty phase, Hall was not brought before the jury. At a pre-penalty phase evidentiary hearing Hall once again insisted she was unableto recall her interactions with appellant. (RT 3066-3074, 3098-3100.) In this instance the trial court found it unnecessary to have the witness brought before the jury at all. (RT 3099-3100.) Thus, at the penalty phase, Detective Steinwand wascalled upon once again to testify about appellant’s statements to Hall, as recorded during the police interview with Hall. The recorded statementsof Hall were, again, played forthe jury. (RT 3118-3138.) Respondentcontendsthatthe situation presented at appellant’s trial is “virtually identical” to the contention considered and rejected by the Court of Appeal in People v. Perez (2000) 82 Cal.App.4"" 760. (RB 138-139.) This Court should reject that contention. Foremost, Perez was decided years before Crawford, which, as recognized by 48 respondent, “transformed theSixth Amendmentjurisprudence...” (RB 137.) Moreover, as the United States Supreme Court in Crawford has madeclear, a defendant's Sixth Amendmentright of confrontationis violated by the admission of testimonial statements of a witness who wasnot subject to cross-examinationat trial, unless the witness was unavailable to testify and the defendant had a prior opportunity for cross- examination. (Crawford, supra, 541 U.S. 36 at p. 68 [124 S.Ct. 1354, 158 L.Ed.2d 177].) Appellant had no opportunity, whatsoever, to cross examineHall. B. Autumn Fuller's Statements about Gatorade through the testimonyof Dr. Vicary via the report of Dr. Romanoff Respondentcontendsthat the use of appellant’s daughter Autumn’s statements to law enforcement regarding a "special" bottle of Gatorade (the implication being the bottle containing antifreeze used by appellantto kill her husband) to cross examine appellant’s penalty phase medical expert, Dr. Vicary, did not violate appellant’s right to confrontation. (RB 139-141.) Again, it is not contested that Autumn herself did not testify before the jury (so as to be cross examined about her statementto police), or that her statement, madein the course ofthe investigation of appellant, was testimonial under Crawford. Rather, according to respondent, because Autumn was called by the defenseto testify about anothertopic entirely appellant's right to confront Autumnonthe topic of the Gatoradebottle wassatisfied. (/bid.) Again, respondent’s contention must be rejected. 49 Although Autumnwascalled by the defense, as recognized by respondent,prior to her testimony andprior to Vicary's testimony, the prosecution assured the defense counsel and the court that she would not be examined about her “Gatorade” statement. (RT 3262-3263, 3266.) The sum and substance of Autumn’s testimony wasthat she would like the jury not to execute her motherso that she could visit her in the future. (RT 3266.) The prosecutor then sandbagged appellant with the unexpected and extremely damaging testimony about the Gatoradeafter the prosecution had concluded its case in aggravation, Autumn had concludedherbrief testimony and Dr. Vicary was called as part of appellant’s presentationof mitigating evidence. (RT 3158-3162.) Having been assured that the prosecution had nointention of using Autumn’s Gatorade comments, appellant had no reasonto, and therefore, no opportunity to cross examineheronthis topic. XI. THE GUILT PHASE ERRORS MUSTBE DEEMED PREJUDICIAL TO THE PENALTY PHASE UNLESS THE STATE CAN PROVE BEYOND A REASONABLE DOUBTTHAT THE ERRORSDID NOT AFFECT THE PENALTY VERDICT The state contends that because there were no prejudicial errorsin the guilt phase, there could be no harm in the penalty phase. (RB 148-150.) Appellant disagrees. Appellant has proven thatthis Court should reverse her convictions because of substantial guilt phase errors. Those sameerrors poisoned appellant's penalty phase defense. Should this Court hold that the guilt phase errors were harmlessas to the guilt 50 determination, it should nonetheless reverse the death sentence because of the prejudice those errors caused appellant at the penalty phase. As argued in her openingbrief, in this case, the errors in the guilt phase were not harmlessin the penalty phase. For example, life-leaning jurors were erroneously excused for cause;the conditions of appellant's confinementin jail -- which extended throughoutherguilt and penalty phasetrials -- were so adverseas to substantially impair appellant's ability to assist counselin the preparation of her defense. Moreover, the effects of such confinement on appellant's mental health wereaffirmatively argued by the prosecutorin his plea to the jury to sentence appellant to death. The many interferences with appellant’s constitutionally guaranteed right to counsel committed by the jail staff and the court impacted appellant at both the guilt and penalty phases; appellant was required to proceed throughboth the guilt and penalty phasesofhertrial with an attorney whodid not adequately represent appellant and with whom there had been a completedissolution of an attorney-client relationship. Finally, the court's failure to properly evaluate appellant's competency to proceedto trial extended throughoutherguilt and penalty phasesas did the court's obvious bias against appellant throughoutherentire trial. The errors above, which were committed in the guilt phases directly affected appellant's case in mitigation as well as the jury's assessmentof the prosecution case so 51 that the errors affected the penalty phase as a whole. Thus, the penalty determination wasnotsufficiently reliable to form the basis for a death sentence. For the reasons stated aboveandin appellant's opening brief, appellant maintains that evenif the guilt phase errors were harmless as to the guilt determination, the prejudice of those errors requires reversal of appellant's death sentence. XII. |THE USE OF INADMISSIBLE EVIDENCE IN AGGRAVATIONTHAT APPELLANT-- EIGHT YEARS EARLIER — ALLEGEDLY MURDERED HER INFANT DAUGHTERVIOLATED THE FIFTH, SIXTH, EIGHTH AND FOURTEENTH AMENDMENTS It is respondent's contention that the trial court did not err in admitting evidence of the death of appellant infant's daughter at the penalty phase. (RB 150-167.) For the reasons below and those arguedin her opening brief, appellant maintains that when the trial court erroneously admitted evidence from which the jury could draw the unsupported, speculative, and highly prejudicial conclusion that appellant had murderedherinfant daughterfor financial gain. The erroneous admission of the evidence virtually ensured appellant would be sentenced to death. In her opening brief, appellant outlined a numberof specific errors related to the introduction of this evidence committed by the trial court. Respondent contends no errors were committed. Once again, respondent is wrong. 1. The court failed to hold an adequate Phillips hearing to determine whether there wassufficient evidenceto find the essential elements of the crime of murder beyond a reasonable doubt, and 52 the evidence adducedat that truncated hearing wasinsufficient to establish the commission of that crime. Respondentagreesthat in People v. Phillips (1985) 44 CAI.3d 29, this Court noted that "in many cases it may be advisable for the trial court to conduct a preliminary inquiry before the penalty phase to determine whetherthere is substantial evidence to prove each element" of other violent crimes the prosecution intends to introducein aggravation undersection 190.3,factor(b). (/d., at p. 72, fn. 25; RB 153.) This is so, as argued by appellant in her opening brief, because aggravating evidenceis limited to evidence that comes within one of the specified factorslisted in Penal Code section 190.3 andfor whichthereis sufficient evidence for the trier of fact to determine that the elements of the offense have been proved beyond a reasonable doubt. (People v. Grant (1988) 45 Cal.3d 829, 850.) It is the trial court's responsibility to determine whether the evidenceexists by which the jury can makesucha finding of criminal activity which is beyond a reasonable doubt, before permitting the prosecution to present the other crimes evidence to the jury. (People v. Boyd, supra, 38 Cal.3d at p. 778.) This is so because whena jury is going to decide betweenlife and death, the trial court must be extremely careful to ensure that every safeguard is observed to protect defendant'sright to a full defense (Gardner v. Florida (1977) 430 U.S. 349,357, emphasis added), and the reasonable doubt standard is required to ensure such reliability. (People v. Balderas (1985) 41 Cal.3d 144, 205, n. 32; AOB 272-273.) 53 In passing on a claim of insufficient evidence, “the court must review the whole record in the light most favorable to the judgment below to determine whetherit discloses substantial evidence -- that is, evidence which is reasonable, credible and of solid value -- such that a reasonabletrier of fact could find the defendant guilty beyond a reasonable doubt.” (People v. Johnson (1980) 26 Cal.3d, 557, 578.) However, the “substantial evidence” standard does not meanthat any evidencewill be sufficient to support a verdict. To be “substantial,” evidence must be “reasonable, credible, and of solid value.” (Ibid; Dong Haw v. Superior Court (1947) 81 Cal.App.2d 153.) “Evidence which merely raises a strong suspicion of the defendant's guilt is not sufficient to support a conviction. Suspicion is not evidence, it merely raises a possibility, and this is not a sufficient basis for an inferenceof fact.” (People v. Redmond (1969) 71 Cal.2d 745, 755.) In the instant case the court ordered a Phillips hearing at which professorof aeronautics and applied mechanics, Dr. Wolfgang Knausstestified. (RT 560-596.) Respondentcontendsthat the testimony of Dr. Knauss constituted "substantial evidence that appellant caused the death of her daughter by tampering with [a] pacifier." (RB 154.) This is simply not so. As explained in appellant's opening brief, a week before jury selection began, California Institute of Technology professor, Wolfgang Knauss wascalled by the prosecutorto testify to what the courtcharacterized as a pretrial hearing "to determine 54 the admissibility of the evidence with regard to the death of Ms. Rodriguez’ child, and morespecifically the structure of that pacifier that apparently caused the death." (RT 560.) Knauss wasthe only witnessto testify at this hearing. Counsel stipulated, for the purposeofthis hearing, that Knauss was an expert onthefailure of viscous materials including rubber. (RT 560-562.) Nine yearsearlier, as part ofa civil suit appellant and her husbandhadinitiated against Gerberforfailure of the pacifier on which their child, Alicia, had allegedly chocked to death, Knauss examined the pacifier and took pictures but, did not conduct anytests on it. Knauss prepared an eight-page report on how hethoughtthepacifier may havefailed. (RT 564.) Knausstestified that the physical condition of the pacifier was inconsistent with the scenario that a 13-month-old child with two teeth could have cut through the pacifier, based upon the appearanceofthe fracture surface. (RT 569-571.) Knauss did not have a photograph which showed wherethefailure occurred. To the best of his recollection from nine (9) years earlier, it occurred within a millimeter or two of the place where the rubber emanated from his shield or was connectedto the shield. This was the only scenario for failure of the pacifier which Knauss considered. (RT 572.) Respondent's reliance on this Court's finding in People v. Whisenhunt(2008) 44 Cal.4th 174), is misplaced. (RB 153-154.) In Whisenhunt, at the guilt phase, the prosecution cross-examined the defendant about an incident in which he had physically 55 abusedhis niece by breaking her leg. At the penalty phase, pursuantto section 190.3, factor (b), the prosecutor sought to introduce evidence of this incident of child abuse by calling one of the doctors who hadtreated the niece. The trial court held a Phillips hearing during which the doctortestified that, although he had no recollection of the incident, based uponhis records from that day, his opinion was that the niece's femur had been deliberately broken. Thetrial court ruled the prosecution had shownsufficient evidencethat the issue could go beforethejury.(/d., at pp. 224-225.) Unlike the controlling facts of Whisenhunt, in the instant case, at the time he had examined (but not tested) the pacifier Knauss found that rather than having been bitten and suckedoff by an infant with twoteeth, it was morelikely that the pacifier had been damagedbeforethe child had it in her mouth. (RT 575-578.) In response to the prosecutor's question at the Phillips hearing, Knausstestified that at the time, because he had no information on howthepacifier was damaged, he had no wayof forming a conclusion other than it appeared asif the nipple had been run over by a hard object, such as a chair. (RT 579.) Clearly in an effort to offer Knauss a basis to form the opinion that appellant had intentionally damaged the pacifier and then knowingly gaveit to her child to choke on, the prosecutor asked Knauss whether the damage could have been caused bythe useofpliers. Knauss, having never examined any other pacifiers, never tested any pacifies and never seen plier damageto a pacifier speculated that the damagehesaw onthepacifier Alicia choked on was "consistent" with such. This 56 opinion was based entirely on his examination of plier damage to an automobile tire. (RT 581-582.) Thus, unlike the testimony of an examining doctor who no doubtwasqualified to offer the opinion that a fractured leg appeared to have been deliberately injured, here, Knauss, an expert on tire-type rubber, who had never examined a pacifier other than this one, had not tested any, and was not qualified to offer an expert opinion on howit became damaged,offered evidence to the court that the pacifier was intentionally and maliciously run overor pulled with pliers so that it could be used as an instrument to murdera child. There wasnot sufficient evidence for the trial court to permit this highly prejudicial and completely speculative evidence to appellant's penalty jury. 2. The Court Failed To Apply the Correct Legal Standard in Determining Whether Aggravating Evidencethat Alicia’s Death was a Homicide Should be Introducedat the Penalty Trial, and the Evidence Before the Court wasInsufficient to find that the Jury Could Properly find Beyond a Reasonable DoubtthatAlicia’s Death was a Homicide Respondentarguesthat the trial court “applied the proper standard of proof” in holding the evidence presented by Dr. Knaussat the hearing priorto the trial court concluding the death of appellant’s daughterAlicia was admissible as a factor of aggravation. (RB 154.) However, no objective evaluation of Knauss’s testimony could yield such a result. As argued in appellant’s opening brief, at the pretrial hearing, the trial court was 57 required to determine whether the prosecution’s proposed evidence wassubstantial enoughto support introduction of the factor in aggravation that appellant murdered her infant daughter at appellant’s penalty phase. This was not the standard applied by the trial court and the evidence wasnotsufficient for then jury to have found beyond a reasonable doubt that appellant killed her daughterAlicia. As arguedin appellant’s openingbrief, a trial court must determine whether evidence exists by which a jury can make finding that the elements of then offense have been proved beyond a reasonable doubt. (AOB 273; People v. Grant (1988) 45 Cal.3d 829, 850; People v. Clair (1992) 2 Cal.4" 629, 672-673.) Here, the trial court made no such determination. Whenlitigating trial counsel’s request that the court hold a hearing, counsel, apparently unsure of the burden of proof, nevertheless requested the court hold an evidentiary hearing to determine whetherthe evidence wassufficient to send the proposed aggravatorto the jury. (RT 450-452.) After Dr. Knauss’s testimony, which was the only evidence offered at the hearing, the court appeared to employ a simple weighing of the evidence in order to determine whether, if admissible, it was not so prejudicial so as to be excluded. Court: | do find the evidence to be sufficient to submit to withstand a challenge underfactor(b), | believe it is, of 190.3. The evidence is admissible, and the reason | reviewed this because as Mr. Houchin hasindicated,it’s potentially very emotional evidence,very prejudicialif it does not sustain challenge, andtheinitial challenges sufficient here to show thatit should be submitted to a jury and let the jury evaluate. (RT 608.) 58 Appellant maintains that even if the evidence was properly before the jury, there was notsufficient evidence for the jury to find the aggravatorthat “appellant murdered" her daughterAlicia (RT 608), true beyond a reasonable doubt. Appellant summarized the evidence offered on the aggravatorin her opening brief. (AOB 279-294.) In her summary, appellant recognized the evidence respondent argues wassufficient for the jury to conclude appellant had murdered her daughter. (See too RB 155-157.) There wasnotsufficient evidence for the jury to have found appellant committed eitherfirst or second degree murder. Even assuming, given the dubious expertise of Dr. Knauss to render the expert opinion as to how thatthis particular pacifier could not have been chewedapart byAlicia and possibly might have been damagedby a chair rolling over it (RT 2958-2962, 2963, 2967), there was no evidence whatsoeverthat the pacifier became damaged because of someintentional and knowing manipulation by appellant. Respondentrelies on appellant's deposition statementthat the pacifier on which Alicia choked was out of her possession for a matter of months; and that after it was returned to her, she checkedit for safety purposes and cleanedit before giving it to her daughterto arguethat, if these commentsare to be believed, the only other scenario by whichthe pacifier failed — that Alicia chewedit or sucked it apart—had been disproven by expert testimony. (RB 157-158.) Even if this Court rejects appellant’s argument that the trial court erred in admitting these statements which appellant made during a 59 deposition taken related to the wrongful deathcivil action, there is not sufficient evidenceto attribute the failure of the pacifier to the intentional and malicious acts of appellant. Theerrorsof the trial court finding legally sufficient evidence to send the aggravatorthat appellant murdered her infant daughter and from which a jury might find that aggravator true was compoundedbythetrial court permitting Dr. Knauss to testify beyond the scope of his expertise, and the trial court abusingits discretion in precluding appellant’s civil attorney from testifying to areas within his expertise. This accumulation of errors requires reversal. Respondentcontendsthatthetrial court did not abuseits discretion in admitting Dr. Knauss’s testimony and that Dr. Knauss’s testimony did not exceed the scopeofhis expertise. (RB 161-162.) Respondent argues appellant has waived this claim on appeal. (RB 161.) However,trial counsel did object on various grounds and those objections were overruled. To object further would have beenfutile, particularly given thetrial court’s reliance on Knauss’s “expertise” to permit the evidenceto go to thejury after appellant’s request, pre-penalty phase that it be excluded. (People v. Roberto V. (2001) 93 Cal.App.4th 1350, 1365,fn. 8, citing People v. Sandoval (1992) 87 Cal.App.4th 1425, 1433, fn. 1 [neither argument nor objection is required to preserve a point for appeal whenit would have beenfutile because the trial court has already overruled an objection to similar evidence.].) 60 Respondent’s second contentionis that appellant’s complaints concern the weight to be given Knauss’s opinionsrather than its admissibility. (RB 161-162.) Not so. Because Knaussdid not have special skill, knowledge, and training and there was not a sufficient foundation for the view he expressed. Knauss was no expert regarding pacifiers, the failure of pacifiers nor child behavioral issues. Knauss was an expert on the rubberused in the manufactureof tires and the causes oftire failure. There was no showing that there wasanysimilarity between tire and pacifier rubber or any correlation betweena failure in one and failure in the other. Neither does respondent agree with appellant’s contention that the trial court erred in not permitting appellant’s civil attorney, Barry Novak, to offer the opinion that Gerber’s settlement to appellant and her husband was “far from nuisance value.” (RB 162-166; RT 2892-2893.) Respondent argues that because Novak had never been a defense attorney, he could “hardly be said to have sufficient knowledge” as to whether a $710,000 settlement by Gerber was more than nuisance value. (RB 165.) Not so. “Nuisance value”is a legal term of art commonly understoodto describe the cost associated with resolving a frivolous cause of action and a quick settlement amountfor a frivolous case. (Burton, Burton’s Legal Thesaurus 4thed. (2007) McGraw-Hill Companies, Inc.) Barry Novak was an experienced productliability attorney representingplaintiffs in personal injury and death cases. It certainly would be expected that in the course of advising his clients, he would be knowledgeable about how much a 61 suit would be worth, and certainly whether an offer was reasonable to offset damages or merely an amountrepresentative of whether the defense wanted to dispose of the case quickly and/or cheaply. Here, the jury should have beenentitled to give what weight it deemed fit to Novak’s opinion (CALJIC no. 2.80, 2.81, 2.82, 2.83; CT 981-982), particularly in light of the prosecutor’s argumentthat the amountof the settlement represented nothing more to Gerber than the cost of doing business,i.e., nuisance value. Here, the admission of a prior unadjudicated act of violence violated appellant’s rights to a fair and impartial jury, a fair trial due process of law and a reliable sentencing proceeding and determination. (U.S. Const., 6°", 8 & 14° Amends.; Cal. Const., art. |, §§ 1, 7,15, 16 &17.) XIll. THE COURT ERRED IN ADMITTING EVIDENCE REGARDING APPELLANT'S COMMENTS ABOUTERLINDA ALLEN AS PART OF THE PEOPLE'S CASEIN AGGRAVATION BECAUSE THOSE COMMENTSDID NOT CONSTITUTE THE USE OR ATTEMPTED USE OF FORCE OR VIOLENCE OR THE EXPRESS OR IMPLIED THREAT TO USE FORCE OF VIOLENCE Respondentdisagrees with appellant's contention that the court erred in admitting evidence regarding appellant's comments to Gwendolyn Hall about Erlinda Allen as part of the people's case in aggravation. (RB 168-171.) According to respondent,it does not matter that Erlinda Allen was not a witnessin the proceedings or that appellant's comments to Gwendolyn Hall about Allen did not amountto an express or implied threat to use force or violence. (RB 170-171.) Respondent's attempts 62 to skirt the requirements that only actual crimes may be offered as aggravation under Penal Codesection 190.3(b) are unpersuasive. As argued in her openingbrief, “[t]he crime ofsolicitation consists of asking another to commit oneof the crimes specified in Penal Code section 653f, with the intent that the crime be committed. Thegist of the offenseis the solicitation, and the offense is complete whenthesolicitation is made." (People v. Cook (1984) 151 Cal.App.3d 1142, 1145, internal citations-omitted.) However here, appellant never solicited Gwendolyn Hall or any other person to assault or murder Allen. No evidence of any attempt was introduced and in noneof the taped conversations betweenappellant and Hall does appellantsolicit Hall to commit such an act nor does appellanttell Hall that she solicited another to do so. When GwendolynHall was asked whetheror not she had ever heard of appellant trying to solicit someoneelse to help her, Hall responded "I've never heard hertell nobodyall -- nobody nothing.” (CT 744.) Simply, there is no evidence whatsoeverthat appellant solicited Hall or any other individual to commit any kind of assault on Linda Allen. Respondentis also wrong thatit does not matter that Allen was not a witnessin the proceedings. Penal Code section 190.3(b) requires an actual violation of a criminal statute. If Allen was not a witness, appellant could not have solicited someone to assault or murdera witness. The entirety of what appellant had done wasnothing but 63 “tough talk" in a custodial environment which was conveyed to overzealous law enforcement by a snitch. XIV. ITIS REASONABLY LIKELY THAT ONE OR MORE JURORS WEREMISLED INTO THINKING THAT, IF APPELLANT KILLED UNDER THE INFLUENCE OF MENTAL OR EMOTIONAL DISTURBANCETHAT WASLESS THAN EXTREME, SUCH DISTURBANCE WAS NOT A FACTORIN MITIGATION Without any substantive discussion of the cited case law cited by appellantin her openingbrief respondentrelies on prior case law of this Court and disagrees with appellant's claim thatit is reasonably likely that one or more jurors were misled into thinking that, if appellant killed under the influence of mental or emotional disturbance that was less than extreme, such disturbance wasnot a factor in mitigation. (RB 171- 173.) Appellant Rodriguez briefed this issue extensively in her opening brief (AOB 331- 339) arguing whythis Court's prior case law must be reconsidered. Accordingly, no further reply is necessary as the issues are adequately presented in the openingbrief. XV. THE COURT IMPROPERLY DENIED APPELLANT’S APPLICATION FOR MODIFICATION OF THE DEATH SENTENCE UNDER PENAL CODESECTION 190.4, SUBDIVISION(e), DEPRIVING APPELLANT OF DUE PROCESS OF LAW ANDA FAIR AND RELIABLE PENALTY DETERMINATIONIN VIOLATION OF HER RIGHTS SECURED BY THE FIFTH, EIGHTH AND FOURTEENTH AMENDMENTS Respondentdisagrees with appellant's claim that because the trial court failed to make an independent on-the-record reweighing of the aggravating and mitigating factors, improperly minimized and ignored mitigating factors, gave undue weight to aggravating factors, and improperly considered matters notin the statutory list when 64 ruling on appellant's application for modification of the death sentence, appellant was deprived of due processof law and a fair and reliable penalty determination. (RB 174- 178.) Respondent is wrong. As arguedin her opening brief, Section 190.4(e) requires the trial judge to independently reweigh the evidence of aggravating and mitigating factors presented at trial and determine whether, in his independent judgment, the evidence supports the death verdict. He must state the reasonsforhis ruling on the record and provide a ruling adequate to assure thoughtful and effective appellate review of the reasons why he concluded the aggravating circumstances exceeded the mitigating circumstances. (People v. Arias (1996) 13 Cal.4th 92, 191-192; People v. Bonillas (1989) 48 Cal.3d 757, 801; People v. Rodriguez (1986 ) 42 Cal.3d 730, 794.) Such a record is necessary to ensure that sentencesof death are not “wantonly” or “freakishly” imposedin violation of the Eighth and Fourteenth Amendments. (Gregg v. Georgia (1976) 428 U.S. 153, 206- 207; Proffitt v. Florida (1976) 428 U.S. 242, 260; see People v. Jackson (1980) 28 Cal.3d 264, 316-317; People v. Frierson (1979) 25 Cal.3d 142, 178-180 (plurality opinion).) Because the judge must determine independently whether the death penalty is appropriate and, in so doing, weigh the evidence of aggravating and mitigating circumstances, the appellate court is provided with a sufficient record upon review. Onthebasis of the judge's written conclusions, the appellate court can determine whetherthe evidence supportedthejury's finding of aggravated circumstances.If the judge and the appellate court concludethat the jury verdict is supported by the evidence, the danger that the jury acted underthe influence of undue passion or prejudice is negligible. See Gregg v. Georgia, 428 U.S. at 195, 96 S.Ct. at 2935 (plurality opinion) (Harris v. Pulley (9"" Cir. 1982) 692 F.2d 1189, 1195 -1196.) 65 Such a recordis also necessary to ensurethat equal protection demandsare satisfied. (People v. Medina (1990) 51 Cal.3d 870, 910.) Furthermore, section 190.4, subdivision (e) is a state-created liberty interest. A trial court’s failure to comply withits provisions deprives a capital defendant of the due process of law guaranteed by the Fourteenth Amendment. (Hicks v. Oklahoma (1980) 447 U.S. 343, 345.) In the instant case, the court recited verbatim aggravating and mitigating factors by reading from a previously prepared written statement. And while the practice of preparing tentative rulings may be "commonplace and not objectionable" (see People v. Medina (1995) 11 Cal.4th 694, 783), the record must be clear that the court gave due consideration to defense counsel's arguments. Here, that was notthe case. Other commentsby the court support appellant's claim that the court came to the hearing with a fixed decision on imposing the death penalty, in spite of the evidence presented by defense counsel. The court completely ignored the persuasivetrial evidencein mitigation that appellant had been a victim of sexual abuse by multiple victimizers, including having been a victim of incest. Respondent argues that defense counsel "made sure"to "highlight this point" during his argument for modification. (RB 178.) However, while trial counsel alluded to appellant's "unusual" background and "problems" with her paternal grandfather (RT 3976), he did not effectively advocate the long term abuse and betrayalof trust appellant suffered at the hands of multiple molesters, and the court minimized the evidence and may have disregarded the 66 molestation by her grandfather and anotherit entirely. [The court considered "evidence [that] suggested [appellant] was sexually molested...by a family member." (RB 4022; CT 1067.) Respondentalso contends that becauseit wasnot cited as an aggravating factor during the pronouncementofthe ruling during the hearing or mentionedin the court's written order, the court did not improperly considerlack of remorse as a factor not presented to the penalty phase jury. (RB 177.) This contention too mustbe rejected. During the hearing on the motion, the court wentso far as to interrupt defense counsel's presentation to discussits consideration of whether or not appellant was remorseful, whichit clearly stated, appellant was not. How do you square with whatthe doctorhassaid, Dr. Vicary's report of January 7, 2004, where hesays the defendant does have remorsefor the murderof her husbandandthatshe's reluctant to share that remorsefor legal and psychological reasons? There's been no indication of remorseat all during the trial, and in factit's hard to believe that there would be any remorse. 4] He was only married for a few months whenshe created the circumstances under which he received a $250,000life insurance with her as a beneficiary, and two monthsafter that roughly attemptsto kill him by the use of loosening the gas connection, which also endangered not only her husband butalso the community around her husband in the event that there had been an explosion, then attempting to poison him with oleander poisoning, and onthefailure of that a weeklater poisoning him for a long period of time with anti-freeze. {| And | have to sayit is the coolestkilling I've ever seen. Most of the murders, and most of the cases we have our murdercasesin this court, over the past 20 yearsI've ever seen a colder heart. She seemed to have no care for the agony that she put her husband through, and the sole goal being to make profit in his death. | So | don't see how the doctor’s opinion squares with any of the evidencethatI've seen throughoutthistrial. (RT 3976-3977.) 67 Forall of the reasons stated above andin appellant's opening brief, the court improperly denied appellant's request to modify the judgment. XVI. THE CALIFORNIA DEATH PENALTY STATUTE AND INSTRUCTIONS ARE UNCONSTITUTIONAL BECAUSETHEYFAIL TO INSTRUCT THE JURY ON ANY PENALTY PHASE BURDEN OF PROOF Without any substantive discussion of the cited case law cited by appellant in her opening brief respondentrelies on prior case law of this Court and asserts appellant's claim that the California death penalty statute and instructions are unconstitutional becausetheyfail to instruct the jury on any penalty phase burden of proof should be rejected. (RB 178-179.) Appellant Rodriguez briefed this issue extensively in her opening brief (AOB 348- 388) arguing why this Court's prior case law must be reconsidered. Accordingly, no further reply is necessary as the issues are adequately presented in the openingbrief. XVII. THE INSTRUCTIONS DEFINING THE SCOPE OF THE JURY'S SENTENCING DISCRETION AND THE NATUREOFITS DELIBERATIVE PROCESS VIOLATED APPELLANT'S CONSTITUTIONAL RIGHTS Respondent summarily argues that the jury was properly instructed under CALJIC no. 8.88 essentially because this Court has rejected similar claims in the past. (RB 179- 180.) Respondentis incorrect. Appellant will not repeat the lengthy argument she madein her openingbrief her. (AOB 389-403.) However, appellant strongly urges this Court reconsiderits prior rulings holding otherwise. 68 Respondentalso argues that the error was waived because appellantfailed to object (RB 179.) However, a reviewing court may consider claim despite lack of objection when,asin the instant case, the error may have adversely affected defendant's right to a fair trial. (People v.Hill (1998) 17 Cal.4th 800, 843,fn. 8.) As set forth above andin appellant's opening brief, because CALJIC No. 8.88, failed to comply with the requirements of the Due Process Clause of the Fourteenth Amendmentand with the Cruel and Unusual Punishment Clause of the Eighth Amendment, appellant's death judgment must be reversed. XIII. THE FAILURE TO PROVIDE INTERCASE PROPORTIONALITY REVIEW VIOLATES APPELLANT'S CONSTITUTIONAL RIGHTS Respondentrelies on prior case law of this Court and asserts appellant's claim that the absence of intercase proportionality renders California's death penalty law unconstitutional should be rejected without any substantive discussion of the cited case law cited by appellant in her opening brief. (RB 181.) Appellant Rodriguez briefed this issue extensively in her opening brief (AOB 403- 408) arguing why this Court's prior case law must be reconsidered. Accordingly, no further reply is necessary as the issues are adequately presented in the openingbrief. XIX. CALIFORNIA’S USE OF THE DEATH PENALTY VIOLATES INTERNATIONALLAW, THE EIGHTH AMENDMENT,AND LAGS BEHIND EVOLVING STANDARDSOF DECENCY Respondent contendsthat the death penalty is constitutional and does not violate international law. (RB 181.) Respondentrelies solely on prior case law of this 69 Court and asserts appellant's claim otherwise should berejected without any substantive discussion of the cited case law. Appellant Rodriguez briefed this issue extensively in her opening brief (AOB 408- 414) arguing whythis Court's prior case law must be reconsidered. Accordingly, no further reply is necessary as the issues are adequately presented in the openingbrief. XX. CALIFORNIA'S DEATH PENALTY SCHEMEFAILS TO REQUIRE WRITTEN FINDINGS REGARDING THE AGGRAVATING FACTORS AND THEREBY VIOLATES APPELLANT'S CONSTITUTIONAL RIGHTS TO MEANINGFUL APPELLATE REVIEW AND EQUAL PROTECTION OF THE LAW : Respondent contendsthat the United State's Constitution does not require written findings regarding aggravating factors and asserts appellant's claim that her constitutional rights to meaningful review and equal protection of the law based on California's failure to require written findings should be rejected. (RB 182.) Respondent relies solely on prior case Jaw of this Court without any substantive discussion of the cited case law. Appellant Rodriguez briefed this issue extensively in her opening brief (AOB 414- 417) arguing why this Court's prior case law must be reconsidered. Accordingly, no further reply is necessary as the issues are adequately presented in the openingbrief. XX. THE CUMULATIVE EFFECT OF THE ERRORS UNDERMINED THE FUNDAMENTAL FAIRNESS OF THE TRIAL AND THE RELIABILITY OF THE DEATH JUDGMENT, REQUIRING REVERSAL Respondentargues there was no cumulative error, and if there were multiple errors, there was not prejudice. (RB 182-183.) Appellant, in her opening brief, argued 70 extensively why both the guilt and penalty determinations must be reversed due to the accumulation of multiple trial errors. (AOB 417-421.) There can belittle question that the purposeful, methodical, and unrelenting court-sanctioned deprivation of appellant's basic human rights and needsincluding medical attention, sleep, sunlight, nutrition, and exercise time outside her cell combined with the mental and physical abuse heaped on appellant by custodial staff broke appellant's spirit and negatively impacted her mental state. Compounding the impact of the horrendous and inhumane treatment appellant was forced to endure for morethan two yearswasthefact that the two individuals tasked with protecting appellant -- her attorney and her trial judge -- not only abandonedappellant to the whimsandcruelty of custodial staff, but aggravated thesituation by their own biases and hostilities toward appellant. Numerouslegal errors, including the admission of irrelevant and highly prejudicial evidence and the erroneous denial of appellant's request to remove her retained counselin a timely fashion so that appellant could hire counsel of her choice and the failure to removeineffective and conflict ridden counsel resulted from the bias against appellant held by the court. Here, respondent has not madeany attempt to demonstrate that the cumulative effect of the errors were harmless beyond a reasonable doubt. Thereis,in fact,little doubt that absentthese errors, appellant would not have been convicted at theguilt 71 phase, and evenif she were convicted, a single juror may not have voted to sentence her to death. (People v. Brown (1988) 46 Cal.3d 432, 464-466 [error occurring at the guilt phase requires reversal of the penalty determination if there is a reasonable possibility that the jury would have rendered a different verdict absent the error]; /n re Marquez (1992) 1 Cal.4th 584, 605, 609 [an error may be harmlessat the guilt phase but prejudicial at the penalty phase].) Appellant's convictions and death sentence must be reversed. XXII. ANY FAILURE OF DEFENSE COUNSEL TO REQUEST OR OBJECT TO ANY OF THE JURY INSTRUCTIONS SHOULD BE EXCUSED Respondentagreesthatfailure to object to jury instructions which affect a defendant's substantial rights does not result in waiver, in other words, where instructional error occurs buttrial counselfailed to object, the defendant does not forfeit her claim on appeal. (RB 183.) Im the instant case, appellant complains that instructional error was committed below in arguments XIV [IT Is REASONABLYLIKELY THAT ONE OR MORE JURORS WEREMISLED INTO THINKING THAT,IF APPELLANT KILLED UNDER THE INFLUENCE OF MENTAL OR EMOTIONALDISTURBANCE THAT WASLESS THAN EXTREME, SUCH DISTURBANCE WASNOTA FACTORIN MITIGATION]; XVI [THE CALIFORNIA DEATH PENALTY STATUTE AND INSTRUCTIONS ARE UNCONSTITUTIONAL BECAUSE THEYFAIL TO INSTRUCT THE JURY ONANY PENALTY PHASE BURDEN OF PROOF] and XVIII [THE INSTRUCTIONS DEFINING THE SCOPE OF THE JURY'S SENTENCING DISCRETION AND THE NATUREOFITS DELIBERATIVE PROCESS VIOLATED APPELLANT'S 72 CONSTITUTIONALRIGHTS]. Insofar as appellant's substantial rights were impacted, these claims are not waived bytrial counsel's failure to object below. XXIII. THIS COURT SHOULD REVIEW ALLERRORS ON THE MERITS, RATHER THAN INVOKING PROCEDURALBARS BECAUSE DEATHIS THE ULTIMATE PENALTY Respondentasksthat appellant's request that this Court review all errors on the merits rather than invoking procedural bars because deathis the ultimate penalty, should be rejected. (RB 184.) Appellant's reasonsfor this request are statedfully in her opening brief and need not be repeated here. XXIV. CLAIMS RAISED IN THE HABEASPETITION ARE INCORPORATEDBY REFERENCE, BUT ONLYIF THIS COURT DETERMINES THAT SUCH CLAIMS SHOULD HAVE BEEN RAISED ON APPEAL Respondentargues against appellant's request that claims which will be raised in appellant's habeaspetition which this Court deems should have been raised on appeal not be forfeited by appellant's failure to do so now. (RB 184.) Appellant's reasonsfor this request are stated fully in her opening brief and need not be repeatedhere. CONCLUSION For the reasons stated above andin appellant's openingbrief, appellant respectfully requests this Court to reverse the judgmentbelow and grant her a new trial, or, at a minimum, reverse the judgment of death and remandfor a new penalty hearing. 73 Dated: J /fi3 Respectfully submitted, Attorney for Appellapv Angelina Rodriguez By Appointment of the Supreme Court 74 CERTIFICATION OF WORK COUNT | certify that Appellant Rodriguez’ Reply Brief consists of 19,198words. Dated: Hi Respectfully submitted, KAREN Attorney for A ant Angelina Rodriguez By Appointmentof the Supreme Court 75 PROOF OF SERVICE I am a citizen ofthe United States and am employedin Stanislaus County. Iam over 18 years of age and am not a partyto the within action. My business address is P.O. Box 6308 Modesto, CA 95357: On the date specified below I served the attached: APPELLANT'S REPLY BRIEF on the interested parties by placing a true copy thereof in a sealed envelope with postage thereon fully prepaid in a United States Postal Service mailboxat Modesto, CA addressed as follows: California Attorney General 300 S. Spring 5" FI. Los Angeles, CA 90012 Angelina Rodriguez CAP X02712 101 Second St. #600 Central California Women’s Facility San Francisco, CA 94104 P.O. Box 1508 Chowchilla, CA 93610-1508 Addie Lovelace David Houchin, Esq Los Angeles Superior Court 8934 Santa Monica Blvd. #191 210 West Temple Room M-3 West Hollywood, CA 90069 Los Angeles, CA 90012 I, K. Kelly_ , declare underpenalty of perjury underthe lawsofthe State of California that the foregoing is true and correct. Executed on ES at Modesto, California. 76