PEOPLE v. AMEZCUA

Appellant, Joseph Flores, Reply Brief

Cal.August 14, 2013

SUPREMECOURTCOPY FILED AUG 1 4 2013 SUPREME COURT OF THE STATE OF CALIFORNE,,1, a McGuire Clerk THE PEOPLE OF THE STATE OF CALIFORNIA, Deputy Plaintiff and Respondent, vs. OSWALDO AMEZCUAand * JOSEPH CONRAD FLORES, Defendants and Appellants. Superior Court No. No. KA050813 /4720 363 California Supreme Court No. $133660 APPELLANT JOSEPH CONRAD FLORES'S REPLY BRIEF APPEAL FROM THE SUPERIOR COURT OF LOS ANGELES COUNTY THE HONORABLE ROBERTJ. PERRY PRESIDING David H. Goodwin, State Bar #91476 P.O. Box 93579 Los Angeles, Ca 90093-0579 (323) 666-9960 PEAIH PENALTY TABLE OF CONTENTS Table ofAuthorities (ii) APPELLANT FLORES'S REPLY BRIEF 1 ARGUMENTS 2 JURY SELECTION ISSUES 2 I THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY EXCUSING PROSPECTIVE JUROR NO. 74 WHO, DESPITE CONSCIENTIOUS RESERVATIONS ABOUT IMPOSING THE DEATH PENALTY, STATED REPEATEDLY THAT SHE WAS WILLING TO CARRY OUT HER DUTIES AS A JUROR IN ACCORDANCEWITH THE COURT’S INSTRUCTIONS AND HER OATH 2 A. Summary of Contentions 2 B. The Trial Court’s Excusal of Prospective Juror No. 74 Is Not Supported by Substantial Evidence 3 C. Respondent Agrees that Witherspoon-Witt Error Is Reversible Per Se 6 GUILT PHASE ISSUES 11 IJ APPELLANT’S RIGHTS TO A FAIR TRIAL, TO PRESENT A DEFENSE, AND TO THE PRESUMPTION OF INNOCENCE WERE PREJUDICED BY HEIGHTENED COURTROOM SECURITY; THE TRIAL COURT DID NOT BASEITS SECURITY ORDER EXCLUSIVELY ON CASE-SPECIFIC REASONS AND DID NOT STATE ON THE RECORD WHY THE NEED FOR THE HEIGHTENED SECURITY MEASURES OUTWEIGHED POTENTIAL PREJUDICE TO THE DEFENDANTS 11 A. The Flaws in Respondent’s Contentions 11 B. Prejudice 14 Ill THE TRIAL COURT ERRED IN ADMITTING THE JAILHOUSE INTERVIEW OF APPELLANTS BECAUSE THOSE STATEMENTS WERE PART OF SETTLEMENT NEGOIATIONS AND WERE PRIVILEGED UNDER EVIDENCE CODE SECTION1152 17 A. Introduction 17 B. The Issue Is Not Waived 17 C. The Flaws In Respondent’s Contentions 2] D. The Cases Cited By Respondent 24 E, Summary 24 IV APPELLANT WASDENIED HIS RIGHT OF CONFRONTATION UNDER THE SIXTH AMENDMENT WHEN THE RESULTS OF ARTURO MADRIGAL’S AUTOPSY WERE ENTERED INTO EVIDENCE THROUGH THE IN-COURT TESTIMONY OF A FORENSIC PATHOLOGIST WHO DID NOT PERFORM THE AUTOPSY 26 A. Summary of Contentions 26 B. Appellant’s Claim Has Not BeenForfeited 26 C. The Admission of Testimonial Evidence Violated the Confrontation Clause 28 D. The Erroneous Admission of Dr. Carrillo’s Testimonial Statements through the In-Court Testimony of Dr. Scheinin Was Not Harmless Beyond a Reasonable Doubt 32 V THE TRIAL COURT COMMITTED FEDERAL CONSTITUTIONAL ERROR WHEN IT ERRONEOUSLY INSTRUCTED THE JURY THAT A PERSON WHOAIDS AND ABETSIS “EQUALLY GUILTY” OF THE CRIME COMMITTED BY A DIRECT PERPETRATOR. IN A PROSECUTION FOR MURDER, AN AIDER AND ABETTOR’S CULPABILITY IS BASED ON THE COMBINED ACTS OF THE PRINCIPALS, BUT THE AIDER AND ABETTOR’S OWN MENS REA, AND THEREFORE HIS LEVEL OF GUILT, “FLOATS FREE.” 34 A. Summary of Contentions 34 il B. Appellant’s Claim Has Not Been Forfeited C. The Trial Court Erred in Instructing That Principals Are Equally Guilty Given the Facts in This Case D. The Failure to Instruct Correctly on the Elements of Aiding and Abetting Was Not Harmless Beyond a Reasonable Doubt VI THE PROSECUTOR COMMITTED MISCONDUCT AND VIOLATED APPELLANT’S RIGHT TO DUE PROCESS OF LAW WHENHE INVITED THE JURY TO DEPART FROM THEIR DUTY TO VIEW THE EVIDENCE OBJECTIVELY AND INSTEAD TO VIEW THE CASE THROUGH THE EYES OF THE VICTIMS VIl THE TRIAL COURT ERRED WHENIT ACQUIESCED TO THE DEMANDSOF APPELLANTS NOT TO ALLOW DEFENSE COUNSEL PRESENT ANY FORM OF DEFENSE IN THE PENALTY PHASE OR TO REQUEST PENALTY PHASE JURY INSTRUCTIONS. A. The Flaws In Respondent’s Argument B. Appellants Should Not Be Estopped From Raising This Issue. C. Conclusion VII. CALIFORNIA’S DEATH PENALTY STATUTE, AS INTERPRETED BY THIS COURT AND APPLIED AT APPELLANT’S TRIAL, VIOLATES THE UNITED STATES CONSTITUTION APPELLANT JOINS IN ALL CONTENTIONS RAISED BY HIS CO-APPELLANT THAT MAY ACCRUE TO HIS BENEFIT CONCLUSION CERTIFICATE OF WORD COUNT ili 36 4] 43 44 47 47 52 53 54 56 57 57 TABLE OF AUTHORITIES CASES Adams v. United States ex rel. McCann (1942) 317 US. 269 ooceeceseceeceeeseeeesscesncensecseesseeaesenessceeceeeeesecaeaceseeeseseseenaseeesetes 20 Beck v. Alabama (1980) 447 U.S. 625 occceseseceseeccsceseesseessesecseesaeeseeseaseaeeaseseeseseaeeaseseeeaseasenseaeaeens 45 Berger v. United States (1935) 295 U.S. 78 oo. eee essccesceeseeseceesseeesesesaeesseeesceesceesseceseessecesneeseeesceaeeesaeerscersaeeeeeees 45 Bryan v. Superior Court (1972) 7 Cal.3d 575 ooo. ee eeccescecccesceceeseesscescecsecssecseceseeaeeacesseeeeeeeeseneesseeseesseeeneseseeeeeuee 17 Bullcoming v. New Mexico (2011) 564 US.eeeccs esccseceseetscesscesseenseeseteeesecessesseessaeeserscessesesseesasssaeeasenaseeeeee 30 Chapmanv. California (1967) 386 U.S. 18 woceeececcescsscecssesssesscecessecececessecaeecsneeeseesnsesenesseesesteceeetecseeaeespassim Crawford v. Washington (2004) 541 US. 36 oeeeeeeeccseeneececeneeeseseecesaeessecscesaeseeseasesssseessaenssoesseseeeseaes 27, 28, 29 Edwards v. Arizona (1981) 451 U.S. 477 eeeccecceeseeseceeecessceseeeseeeaecsaeseseaeseceeseessesesssosusesseessseneseeseasensen 19 Fare v. Michael C. (1979) 442 U.S. 707 csssssssssssssesssssssssssssesssusssssssssussssssesssvesssvcssssessssessecenseessecensseessvesesssees 20 Florida v. Nixon (2004) 543 U.S. 175 coeeeeeeeesesesecessceeesceesenecsseccnecseescseeesaeeseeeeaceseeeaseseaseeeeceseseeessaseseseas 51 Glasser v. United States 315 US. 60eeeeeeceeceeeseeesececsecessseeeeeeesauececssesseessececeessaeesceecacecsaeeesseeessaeereeessueeeeseaeeeaes 20 Gray v. Mississippi (1987) 481 U.S. 648 oooeeeeceecceeeeseeneeesecseesseceaessssseeesessseseaeseoesseeseseneesseeenes 6, 7, 8,9 Hale v. Morgan (1978) 22 Cal.3d 388oecesceseecccesscesecessceeceseceeseesusensesescsecsssesuesssecssseseaeeesouseseeesees 19 Holbrook v. Flynn (1986) 475 U.S. 560 woneccceneeeseceneecnecssececessessascneeseessecessseseeeasesserssecnecesssessosecaseas 13 iv a Illinois v. Allen (1970) 397 US. 337 wo.ccecccescssseseecessceseceesscecscessceessccenacesscecsacecseneceaseesteoseesecesseeeeseeeseeees 15 In re Horton (1991) 54 Cal.3d 82 oo... ccccecccssccstecssesseesssccesaeseseessneeeseeeceeeessaceeeeeeseecseecseesceeneeeeteaees 51 In re Marquez (1992) 1 Cal.4th 584...cccsscsesscesssecessseeceseeesensecessnsecssaeecseeeceesesseeesaeeesaeseceeenses 56 Johnson v. Mississippi (1988) 486 U.S. 578 oo. cccccssesseeseeeseesseceseecsscecseessueescseecaesssaesessesseesaeesseeeeesesesseeaaees 46 Johnson v. Zerbst (1938) 304 US. 458 ooocececcccseceeeessecesseecsseesscececeeseanecseecesneceseeseceesseeaneeeeeeneeeseees 19, 21 Mak v. Blodgett (9™ Cir. 1992) 970 F.2d 614 ..eeceecsscescessessessecceseessecsessesssssesesscsecssssseceecsessetssessessessseeesss 56 McElroy v. United States Ex Rel. Guagliardo (1960) 361 U.S. 249 (Harlan, J., diss.) ........cccesecsscessseecscccseecesceesecescesenesseensceeseessceees 45 Melendez-Diaz v. Massachusetts (2009) 557 U.S. 305 ....cccccessccsssscsenscesssccessecessceeceeeceseseceesceeecesenessaesessnssenseeesaeectecseaees 30 Miranda v. Arizona (1966) 384 U.S. 436 woeccecccsecscessecseccesssesseeeesseesseeceneeesssessnseesseessesecsseseecesseeeseeeseees 17 Moore v. Michigan (1957) 355 ULS. 155 wecccccsssccssccssecessesseeseccesseecesseeseeecesaccsaceeseeseseeesersesesaessecseteeseeeees 19 Moran v. Burbine (1986) 475 US. 412 cececccccssscsssessssccssecseccesscesseceessnecssscesssesaeecseeesaessseesseseseeneeeneess 20 Neder v. United States (1999) 527 U.S. 1, 144 L. Ed. 2d 35, 119 S. Ct. 1827 ooo.cccsccsssceesseesseeeeteeeeeeees 43 Pena v. Municipal Court (1979) 96 Cal.App.3d 77......cccscccscccesceesccesssesssessscesceseesseecseeceaeeseeeseeeeseeneeseseesseeaeeeneees 19 People v. Avalos (1984) 37 Cal.3d 216.0...ce ccssssscstecsscescessssseeessseasssecsceeeseesseesnesseeeeterscessesssssesaecaesarees 40 People v. Barba (2013) 215 CalApp.4th 712 oo...ceccccccsscsscecessssssecesseeesecesscesseeeesseceeessseneesseecseseneesaes 3] Vv People v. Beagle (1972) 6 Cal.3d 44] ceeccscseseecneseeseeseeaesesseessescesenectaesaeseescesaeetseasasenseeeaseaseeetans 33 People v. Blair (2005) 36 Cal.4th 686.00...eescececeeceecsseessecsecaeeseeaeceessaesesesscssseaseeecssesaseeeeeesaseeteases 3 People v. Blanco (1992)10 Cal4th 1167eeesessscssecesceseessssceasssesessseseceserseseneeaesseeceseaeeceeneeserseeaneas 19 People v. Blanco (1992) 10 Cal.App.4th 1167 ieeeeeees ceceseeeeeecestsscsesseeseessseneesasseesssesueceetasseeseseaees 19 People v. Bolden (1990) 217 Cal.App.3d 1591 ooeseceecsecsceseeseesctsnenesesecesecescesesnseesessceseserseseasense 37 People v. Boyer (2006) 38 Cal.4th 412.eceeesesseeeeesesecssesseesesseesecssessesasesesseesseteeseeesseeseneeaes 17 People v. Bradford (1997) 15 Cal.4? 1229 oceceeceesscssescesscessssssessesseessesseessscsassevessessesseessessesseeseeseesstesesseessecs 45 People v. Brown (1996) 42 CalApp.4th 461 oocececcscecseeeeesersssseeseesssesesseesesseeseeerssssseseeasenseenes 19 People v. Brown (2004) 33 Cal.4th 382ooceeessescesceseecesscseescesccesessenecsessseseseseeseeseeenesetsessenesssens 16, 46 People v. Bruner (1995) 9 Cal..4th 1178ooeeessccsesesseeeseseeteesscesesseesscsseseseeceeseeseessesesassaesesessessneaeiesas 19 People v. Canizalez (2011) 197 CalApp.4th 832ccceecssceecseesscserssceesssserssssssseessssssssessscessenserseessees 38, 39 People v. Castillo (1991) 233 CalApp.3d 36.00.eeeesceenccesseeeseeeeessstensseesessassessecesesseseseessseesnseeseesetane 56 People v. Castillo (1997) 16 Cal.4th 1009.eeecscececeseesecseeeeseseeesesseceateeeeeseseseenseesesseeseessessesesseeneees 37 People v. Coates (1984) 152 CalApp.3d 665 oo.ecceeseeeeseseseeeeeeeseeeseesesesesesseessesseesesseeeseeeeeenssnessees 37 People v. Cole (1988) 202 Cal.App.3d 1439 oo.escscscesseseseseeeecsesssenessceseeseseeesseesasesseseeaeeesenssavaees 37 vi et People v. Concha (2009) 47 Cal.4th 653occccccsesssseeccsseesecsecesecssseeecnaeessesneesnessceeeseeeeeees 36, 38, 39, 42 People v. Crow (1994) 28 CalApp.4th 440ooceescsccesssseesecereeseessessseseesseeesseccensersesseeaaessesesensaeenees 24 People v. Cummings (1993) 4 Cal4th 1233 occcecssscessescescenceseesscesseaseeessnsseeensenesseesaseseseseeenesesserenesees 37 People v. Duenas (2012) 55 Cal4th Loneceeesceseecesesseeseeeseeeeeesacesseessesseeneeseeseseeeseeeaseseeeseseeseaeeseeens 3 People v. Dungo (2012) 55 Cal.4th 608 oo...cccscsecesseesecceeeseeseeessesseessessaeeaeeenecseessseuseseseeees 29, 30, 31 People v. Duran (1976) 16 Cal.3d 282ecseesseccceseeeececseesncessesececsecseeessceseesseecssssaecssoesereeaseateneesaeens 15 People v. Ernst (1994) 8 Cal.4th 441eeecceesceseeensscseneesnecsetaeesecesnceesensssceeessneseserseneeacesseneasens 51 People v. Falsetta (1999) 21 Cal.4th 903 oo.escsecseeeseceecesceesscessscacecseescessessscesesesensaeossseesecsaseneeaseaeees 36 People v. Fudge (1994) 7 Cal.4th 1075 oo.eeeeeseecseecesececesseceseeeseseseesceeseesseceaseseeesesesssssseeaseseasseseeeees 36 People v. Gordon (1990) 50 Cal.3d 1223 oooccccesseeceesseeeeeescecsceeseeeseeseesecesceeccescssesessseeseesseeeeaeeeceerees 36 People v. Graham (1969) 71 Cal.2d 303neecccessscecceseeseeeoneesseesscesesseeeseccecesnsesseaneesseseeteacesseeseeeeseneee 36 People v. Hall (1980) 28 Cal.3d 143ooeceeeeeneeeseeseessssessesssseceecsseessecssessseseensccsessesuessessesneasaasenes 37 People v. Hawthorne (1992) 4 Cal.4th 43ooecsccssceeesetseesaesseeseesscssceneeseesassecseseenseessseseessssceseessesaseeeenes 16 People v. Hayes (1990) 52 Cal.3d 577oeeecscesccssccseeseeeceeceeseerseeseeseeseeeeceaseeseaecseesseseessscesesesseceeasseneseae 16 People v. Hernandez (1988) 47 Cal.3d 315oeccsssescesccsseeseeseceeesseesnesceseeneessecsceesesesseseeoseseosseeeseteateneeass 40 Vii People v. Hernandez (2011) 51 Cab.4th 733ooececccsecesecceseeseeeecessecesseceeeesscecsuceseaeeesenseeseeeececeeeeeees 13, 14 People v. Hill (1992) 3 Cal.4th 959, cert. den. (1993) 510 U.S. 963 ou.eeeeeseeeseesceeessseeeesseseseseseesees 1 People v. Hill (1998) 17 Cal.4™ 800 ......csescssssssssesccsssssseeeececeesssssneseeccesssneseccesssssvescesssssunsseesssnssiuessess 45 People v. Holt (1984) 37 Cal.3d 436ooeccseesesececeecesetecsnesesssesessceseesaceseseasssecsecsesssesssensesareesetsaes 56 People v. Jackson (2009) 45 Cal.4th 662.0... ceccsccseecsscesecsseseeeeeeecesseeseceseeessenseeeeeessseeaseneseseseeessssseserseeee 49 People v. Jenkins (2000) 22 Cal.4th 900 2...eee eececececesscesseeseceeeececasseeeeeeseseceaeesceecececeesaesssecseesaseneeneessees 3 People v. Leonard (2007) 40 Cal.4th 1370.0... eceescessseecesssesccessecsesseescesscenscesscecsescnsseseseececeseaeeaecenseatenss 25 People v. Lopez (2011) 198 CaLApp.4th 1106.0... cesesesecessessecsseccesessseeesessensessscsesesseeseeanes 37, 38 People v. Lopez (2012) 55 Cal.4th 569iceccsccssesseeeseeeneseessesseassussesceessussensenseneeeesees 29, 30, 38, 39 People v. Malone (1988) 47 Cal.3d 1cececeeeecessceessesssesssesseessseeessssscsersacsessesssseecessessesesesessssecesseasesnans 37 People v. Mar (2002) 28 Cal.4th 1201 oo.eeceeeseessessceseceeceeeenseseceneeeesecsnenseeseaesaeeeecesueeeaseneeacees 13,15 People v. McCoy (2001) 25 Cal.4th L111eeecceeecescceeeesecesceececceseececeeesesseaesaeeeseeeaeseaaeeneens 36, 38, 39 People v. McKinnon (2011) 52 Cal.4th 610...cceeceseceeessscssceeesesseescnersceescesseescsetesseenesssesesecseeeseescaseaees 54 People v. Mejia (2012) 211 Cal.App.4th 586oo.ceeeseeseeetsscseseeeetsensescessesacsessesssesseeseenes 37, 38, 39 People v. Montiel (93) S Cal.4th 877oeeescsssesccscesersecsessseesesecessescseseessesssesscesceeseesseesessassecseeasseeesaeseees 37 Viil People v. Nero (2010) 181 Cal.App.4th 504 0.0ccccessscssscsscesseserssessessecessesssssseeeeseeeneeeses 36, 38, 39 People v. Pearson (2012) 53 Cal.4th 306.0...ecceccesceseesseceseeseesesaeecseeseesessesecsssseacseseeseesceaseeesseseessaeseenes 4 People v. Posten (1980) 108 CalApp.3d 633 oo... cceeccseeceseesscsenesceeeessecseeaeesessesseesssseeeseeseeeeseeeacensenes 24 People v. Riccardi (2012) 54 Cal.4th 758occeeeessessesseeseseeeseceneescesseseeeeeeseeaseasssesseeseeseeeaeeeeeaneaspassim People v. Rodriguez (1986) 42 Cal.3d 730 ou... eccceecesccescesscescessseececseceseeeseenensuesseeesecseesaeeneeeesenseceeeaes 16, 46 People v. Salter (2012) 210 Cal.App.4th 769 oo... cccsesecseessesceteceeseecssseeeesccseesessceaesoneeeeeaseaeesceaseasenes 49 People v. Samaniego (2009) 172 Cal.App.4th 1148oo.cceesesseesscesseeeneeeeeeseeseceesseceesesseeeaeenees 36, 38, 39 People v. Sanders (1990) 51 Cal.3d 471 occececcsesseescesscesseesseessssscesssessecseesseeesessesssesseeesesaeeeese 48, 49, 50 People v. Schmeck (2005) 37 Cal4th 240ooceessecseceeeseesseeseceesssessceseesesseeesceseeeeesessseeessaesesessonsseseaees 54 People v. Sengpadychith (2001) 26 Cal.4th 316.0...eesscsseececesesseeseeeeesassceeecesesenenscesstsesscessseetsetscenesesceseeereeees 43 People v. Smith (1970) 4 Cal.App.3d 41 oo..eceeccecceeceesceesececceseeeeneenseeseesssesenesecsneeeeessessceeeeeeeeceseneneenesas 56 People v. Stevens (2009) 47 Cal4th 625 occ ceeccccsccssccessecsssesesceeescsecceescecessecearecesesesessecenseeeeeesenes 12, 13, 13 People v. Stewart (2004) 33 Cal.4th 425 oooeeeceescceeesceseceeneeescceseessceceeeeecseceseenseeacessesseesaeerseeeeeeseeseeeeees 4 People v. Stone (1981) 117 CabApp.3d 15 ooeeecsececcseseceseeeseeeseecseesseecesseeseresesesecseeseesaeseenesaeens 56 People v. Tanner (1975) 45 CalApp.3d 345 ooo eeeeesscessceesneeesencesseecsnecesceseeeeseesceeceeerseeseseeees 23, 24, 25 ix People v. Thimmes (2006) 138 Cal.App.4th 1207oeeececessescessesseeeesstececscsececeeeseeeeseseersacessessenceneeseeaeens 27 People v. Towey (2001) 92 CalApp.4th 880.00... cecccccccssscssscessessessetseeeseesenessnescssseceaeesecessseseeseeeeeeaeenees 51 People v. Wattier (1996) 51 Cal.App.4th 948 ooo... ceeeeesesscessesssessessceeseeececseseresseceacensesseseseeseonseseeeeseaeees 19 People v. Welch (1999) 20 Cal4th 701eeecseescseeecesecenesseeesseeeeeecstessesasenscnceatesseneesseseeesscasseseaseasensens 49 People v. Whitehorn (1963) 60 Cal.2d 256 00... eeeceeccesecescessceescecessceececccesceseseeseeesacesceesesseesessaseneseeeeaseeeees 37 People v. Williams (1998) 17 Cal.4th 148ooeeecesscssessssscessesseesecenseceeeecesessecnaceneeseeseeeeseseseeaeeeaeens 18, 31 People v. Wilson (2008) 43 Cal4th 1eeeeesecsessesesesseesscessececcecesseessaenscecseessessacescesaeeesssseessseaeeaeesaees 17 People v. Wilson (2008) 44 Cal.4th 758 ooo... eccceceescceseceseesseesseecesseeeeceeceseetoeecseeeaceesetsceeeeeeaseaaeneeesseeees 3,18 People v. Woods (1991) 226 Cal.App.3d 1037oeeeecccescessessceeesneseeeaseesesseeeetsesscessenstsescesesssessseeseneenes 36 Ross v. Oklahoma (1988) 487 U.S. 81 ooeeeecceeeceeeeecsecesceseescsacseseseeeecescesasenseaeeeestecsesseesssesucaeenesseenens 8,9 Taylor v. Kentucky (1978) 436 U.S. 478 oeeeeeseesessecsseeceecesesenseesseesacenceecesseencesesesesseescessesseeeseseneseeseeaeeaes 56 United States v. Gaddy (8th Cir. 2008) 532 F.3d 783... cceseecsecessessesecseeeseseceateeneescesseesecsceseeeesecencecesseeaeeeseneaes 20 United States v. Garza (Sth Cir. 1979) 608 F.2d 659 ooeesecssccsesscesceeeeeececsceeseseeeseeseseseeeseeseeseeteceeaeeeseaeaeeaes 45 United States v. Harper (8th Cir. 2006) 466 F.3d 634oececsscssseceesssessceceerseessnsesseesessssoessceeseeseaeassesseasnesens 20 Uttecht v. Brown (2007) 551 US. 1 woe eeeeessesceesecssereessccnseseseesnessssseeseececeacesaseaneaaesaeenecsessseaseneseeeaceas 4,5 x Wainwright v. Witt (1985) 469 US. 412eeeccccccssssssesessssssesecesesesseeseseessecsesaseseestesasessesesseeseeeeensspassim Wainwright v. Witt, Supra. (RB 37-38, 41-43.)eeeeccenscsseeeessessesseseeeseeecesesseseeesseeseseeseessesaeeseeeseseeeasesseneesees 3 Ward v. Taggart (1959) 51 Cal.2d 736...eeescscesceseesssenesseeecceeeeneesessenssesesaceaeessesssseseaeseneseetsesseatenes 19 Williams v. Illinois (2012) S67 US. eceeeeceeessccssecesseesseesssecssesenseecseesceeseeesasessseceaeeecsecenseeeeseseeeesaees 30, 31 Williams v. Illinois, SUPVA, 132 S.Ct. i eeeecesceseccseesenesccescceeeeeevensessessceeeeeseeesseseesneeseceaeseaeesaseneesenseeeeeneess 30, 31 Williams v. Mariposa County Unified Sch. Dist. (1978) 82 Cal.App.3d 843 ooocsesecsesssssscsesceecseseseeesseseensscaseseeseesaecneeseesneserseeaneanenes 19 Witherspoonv. Illinois (1968) 391 U.S. 510 oecece cecseeesceesecceeeneessecseeesecneeesesessesaseaeessessaceseesneesssteasesseees 2, 6, 7 Wong v. Di Grazia (1963) 60 Cal.2d 525 ooceecescccssesssseseescescecsseeensceaeeseceecseseseesaceaeesenseeeseecseesaeeaeceaenaees 19 CONSTITUTIONAL AUTHORITY AND STATUTES United States Constitution, Sixth Amendment...0..........cecccssseesseeseeceesseeessseeenees 26, 27, 32 United States Constitution, 8th Amendment ..............cccccccccecessseeceeceeeeeesenseeeneceeseeseaees 16, 45 United States Constitution, Fourteenth Amendment........... cece eeeceeeseesneceeeeeesesseruaeees 47, 53 California Constitution., artilce I, section 16.0.0...cece ccccccsseessnececeeceecesseneeeceeesseneneeeesees 51 Code of Civil Procedure 232, subdivision (D) ...........:.ccsecsssceseeeeeeceeeceteenseeeeeseeeeeeesaeeeaseeeees 5 Evidence Code section 1153 wo... cccsssecsssccesseeeesseeessceceesseecsneeessnsaccssaeecssnesseseeeees 17, 21, 23 Penal Code section 20 .0......eeeecesscsssescesseesceceesceecesceceecceeatenseseeaecsesscesetaeeeseaeessseassessessaeaneas 42 Penal Code section 190.05 (h)(4) and (8)...ceeeeecseseceneecsseesseeeseecessececessceereetostennesteeeaes 50 Penal Codesection 1044 oo... eecccessceeeceecesseseneeenesensesseeceeeacerseceaeecseeseensaseseseeseeseseesseeeees 52 Penal Code section 1192.4 oo... ieccccsscssscceecesssssnscsceeeececeecnesscesseessesesesesssnaeseeeeseeees 17, 21, 23 Penal Code section 1259 .....ccccccccccccssseccesssscecsessccsecceeessecsecnssanececeessasseueccseeecesscesecessnees 36, 40 x1 OTHER AUTHORITIES S Wigmore, Evidence .........c.sccecscseseesceeseesseccesacesssecscesseesecscesecesseeneceneeacesaeeeeeeseeseesneeseens 50 American Bar Association, Association Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases (2003), Guideline 10.8(A)(3)(C).) ...ceeesescceeesseecsceessessececeeneeaeceeeseseasesseeeeeseeeseseeeeseseaceesesensees 28 CALCRIM 400 oooeecsesesesenccecesssscseessesessesesssecesensesesnecaseecescsasenesscssceseseeessecseeeseass 38, 40 CALJIC NO. 2.72 voeecececessccssesecsscceeceneececeneeseecersescesecesasesseeeaceseeneeecessssaeeeseacesasensesesenseneeegs 33 CALJIC No. 3.00 ooo.eeececceseecstecseeceeceescssenaceeneeeenseecseeesesoseesssesessessseeseeesseessseeenesespassim CALJIC No. 3.01 oe eeececcecssscessessecsseescceceessceeeneseeseeesaeesseesesseeeaeceseescecaeeseeeasesecessenseeseeereees 4] CALIJIC No. 17.00 occcceeceeessssscecesseeseeeceseesceseccereeesascesenesscescssessaeeeeacssseseessosetsavseeeasaceaes 4] http://www.merriam-webster.com/dictionary/accede............ccsscesssesesssesesseseseeeseeneseeerseees 48 Witkin & Epstein, Cal. Crim. Law (2d Ed. 1988) § 2954 woo. eesescseetscneeesecenecteeeeeeeees 37 xii SUPREME COURT OF THE STATE OF CALIFORNIA’ THE PEOPLE OF THE STATE OF CALIFORNIA, Superior Court No. Plaintiff and Respondent, No. KA050813 VS. California Supreme OSWALDO AMEZCUAand JOSEPH CONRAD FLORES, Court No. $133660 Defendants and Appellants. APPELLANT FLORES'S REPLY BRIEF In this brief, appellant does not reply to those of respondent’s arguments which are adequately addressed in his opening brief. The failure to address any particular argumentor allegation made by respondent, or to reassert any particular point made in the opening brief, does not constitute a concession, abandonment, or waiver of the point by appellant (see People v. Hill (1992) 3 Cal.4th 959, 995 fn. 3, cert. den. (1993) 510 U.S. 963), but rather reflects appellant’s view that the issue has been adequately presented and the positions of the parties fully joined. References to Appellant’s Reply Brief are identified by the initials AOB. References to respondent’s brief are identified by the initials RB. As used herein “appellant” refers to appellant Joseph Flores, and ‘“Amezcua” refers to co-appellant Oswaldo Amezcua. The use of the plurals “defendants” and “appellants”refers jointly to appellant and Amezcua. ARGUMENTS JURY SELECTION ISSUES I THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY EXCUSING PROSPECTIVE JUROR NO. 74 WHO, DESPITE CONSCIENTIOUS RESERVATIONS ABOUT IMPOSING THE DEATH PENALTY, STATED REPEATEDLY THAT SHE WAS WILLING TO CARRY OUT HER DUTIESAS A JUROR IN ACCORDANCE WITH THE COURT’S INSTRUCTIONS AND HER OATH A. Summary of Contentions Thetrial court committed reversible error and violated appellant’s rights to a fair trial and impartial jury as guaranteed by the Fifth, Sixth, and Fourteenth Amendments when it excused Prospective Juror No. 74 for cause despite her willingness to fairly consider imposing the death penalty. (Witherspoon v. Illinois (1968) 391 U.S. 510; Wainwright v. Witt (1985) 469 U.S. 412.) Prospective Juror No. 74 expressed both confusion and reservations toward the death penalty, but consistently said her feelings about the death penalty would not impair her ability to be a fair and impartial juror in the case. The prospective juror said she could weigh aggravating and mitigating evidence and that she would vote for death if she found “the aggravating was enough, then you know,it would be hard, but I could make the decision.” (SRT 1384-1385.) Appellant contended in the opening brief that the trial court erred in excusing this prospective juror because the United States Supreme Court and this Court have made it clear that a prospective juror’s personal conscientious objection to the death penalty is not a sufficient basis for excluding a person who was willing to follow the court’s instructions to weigh the aggravating and mitigating circumstances and determine whether death was the appropriate penalty under the law. (AOB 57-70.) Respondentpoints out that Prospective Juror No. 74 gave inconsistent and conflicting responses regarding herability to impose the death penalty and asserts that substantial evidence therefore supports the trial court’s findings. Respondent further argues that any error was harmless. (RB 37-45.) B. The Trial Court’s Excusal of Prospective Juror No. 74 Is Not Supported by Substantial Evidence A prospective juror in a capital case may be excluded for cause if the juror’s views on capital punishment would preventor substantially impair the juror’s performance ofhis or her duties. (Wainwright v. Witt, supra, 469 U.S.at p. 424; People v. Jenkins (2000) 22 Cal.4th 900, 987; People v. Blair (2005) 36 Cal.4th 686, 741.) When the prospective juror’s answers are conflicting or equivocal, the trial court’s findings regarding the prospective juror’s state of mind are binding on the appellate courts if the findings are supported by substantial evidence. (People v. Duenas (2012) 55 Cal.4th 1, 10; People v. Wilson (2008) 44 Cal.4th 758, 779.) , Respondent points to voir dire responses given by Prospective Juror No. 74 and characterizes them as conflicting. Respondent asserts that substantial evidence therefore supports the trial court’s conclusion that this juror’s personal feelings about the death penalty would prevent her from carrying out her duties in accordance with the court’s instructions and the juror’s oath, the standard articulated in Wainwright v. Witt, supra. (RB 37-38, 41-43.) An examination of the record, however, reveals otherwise, i.e., that the trial court’s determination that Prospective Juror No. 74 was not a proper death- qualified juror is not supported by substantial evidence. Respondent and appellant rely upon the same factual representations regarding the prospective juror’s questionnaire and oral voir dire responses. (See, e.g., AOB 60-63 and RB 37-39, 41-43.) he The record in fact shows that Prospective Juror No. 74 may have had ideas about the death penalty that were indefinite or complicated or made the death penalty difficult to impose, but this Court and the United States Supreme Court have recognized that such a juror’s performancestill would not be substantially impaired under Witt. (See, e.g., Uttecht v. Brown (2007) 551 U.S. 1, 9; People v. Stewart (2004) 33 Cal.4th 425, 447; People v. Pearson (2012) 53 Cal.4th 306, 327; AOB 81-88.) The record showsthat the most direct exchange betweenthe trial court and Prospective Juror No. 74 occurred whenthe trial court asked the juror if she was someone whokind of believed in the death penalty but could never impose death herself or whether she was someone who would be able to weigh all of the evidence and make an appropriate decision. During the jury selection process, the court asked each prospective juror to identify him- or herself with a series of four categories described by the court (see AOB 57-60). The court labeled the questions above that it asked of this prospective juror as describing categories 3 and 4, respectively. During the colloquy between the court and Prospective Juror No. 74, the prospective juror initially described herself as a category 3 person, i.e., someone who kind of believed in the death penalty but could never impose death. But, then the prospective juror also said she could impose death albeit under “harsh circumstances,” (SRT 1356:17-18.) After a further exchange, the court and the prospective juror agreed that the prospective juror was a category 4 person,i.e., someone who would be able to weigh all of the evidence and make an appropriate decision. (SRT 1357:3-6.) In short, Prospective Juror No. 74 and the trial court were in agreement that the prospective juror was a properly qualified juror under the Witt standard. . However, a little later in the proceeding when the court was formulating the list of prospective jurors to be excused for cause, the trial court added Prospective Juror No. 74 to the list, finding that the prosecutor had “pushed her 4 over or got her to commit to being a [category] three.” (SRT 1396: 17-20; AOB 63-64.) The trial court was referring to an exchange between the prosecutor and Prospective Juror No. 74 when the prosecutor asked if the prospective juror had thought about having to tell the defendant’s mother that her son was going to be executed. The prosecutor said: “Is there anybody that has listened to what I’ve said and starting to think, whoa, wait a minute, in front of the defendants, I am going to have to come back and return a verdict of death in front of them. [] Maybe with their family sitting out in the audience, I have to tell a mother that her son is going to be put to death?” (5RT 1387:1-17.) Prospective Juror No. 74’s response to this was, “I don’t think I could do it.” (SRT 1388:11-12.) The United States Supreme Court has madeit very clear that a juror whose views on the death penalty would substantially impair the performance of his duties as a juror in accordance with his instructions and his oath may be excused for cause. (Wainwright v. Witt, supra, 469 U.S. at p. 424; emphasis added.) If the juror is not substantially impaired, removal for cause is impermissible. (Uttecht v. Brown, supra, 551 U.S. at p. 9.) Here, the trial court found the prospective juror disqualified for service based on a hypothetical verdict reached not on the law and the evidence, but on an impermissible basis — the verdict’s effect upon others — based on a constructed hypothetical scenario (“I have to tell a mother that her son is going to be put to death”) specifically intended to elicit the very response given by the prospective juror. Neither the juror’s oath' norany legalinstruction requires a juror to render a verdict on anything but the evidence presented and the instructions of the court. ' The oath administeredto trial jurors pursuant to Code of Civil Procedure 232, subdivision (b), is as follows: “Do you and each of you understand and agree that you will well and truly try the cause now pending before this court, and a true 5 In all other pertinent responses during the jury selection process, Prospective Juror No. 74 expressed some reservations about imposing the death penalty, but she also explained that she would vote for death if she found “the aggravating was enough, then you know, it would be hard, but I could make the decision.” (SRT 1384:28-1385:1.) Here, the trial court relied on Prospective Juror No. 74’s emotional reaction to a flawed hypothetical and found the prospective juror’s response to be dispositive in determining whether the juror was a properly death-qualified juror. Hence, evidence that the jury was not a death-qualified juror was not supported by substantial evidence. C. Respondent Agrees that Witherspoon-Witt Error Is Reversible Per Se The law is settled that reversal of the penalty judgment is the appropriate remedy for Witherspoon-Witt error. (Witherspoon v. Illinois, supra, 391 U.S. at pp. 521-523; Gray v. Mississippi (1987) 481 U.S. 648, 668; People v. Riccardi (2012) 54 Cal.4th 758, 783; AOB 89-90.) Stare decisis thus compels its application here. Respondent recognizes that Witherspoon-Witt error is reversible per se, but nonetheless urges this Court to adopt a new, more permissive standard and find “technical” errors to be harmless. (RB 43-45.) As explained below, both this ‘court and the United States Supreme Court have already considered and rejected this argument, and because respondent provides no new rationale for reconsidering this contention, this court should once again rejectit. In support of this request, respondent characterizes the erroneous for-cause exclusion of Prospective Juror No. 74 as a mere “technical error’ that should be considered harmless. Respondent attributes this characterization to Gray v. Mississippi, supra, 481 U.S. at p. 666. (RB 45.) An examination of Gray, verdict render accordingly only to the evidence presented to you and to the instructions of the court.” however, reveals that the “technical error” language and harmless error standard of review argument were merely the linchpins of an argument made bythe State of Mississippi and rejected by the Gray Court. Mississippi argued that the erroneous exclusion of a prospective juror should be viewed as a “technical error that should be considered harmless” becauseit had no prejudicial effect. (bid.) In rejecting this contention, the court in Gray explained why the harmless error analysis formulated in Chapmanv. California (1967) 386 U.S.187 could not apply to the fundamental constitutional issues at stake here. “Because the Witherspoon-Witt standard is rooted in the constitutional right to an impartial jury [citation] and because the impartiality of the adjudicator goes to the very integrity of the legal system, the Chapman harmless-error analysis cannot apply. We have recognized that ‘some constitutional rights [are] so basic to a fair trial that their infraction can never be treated as harmless error.’ [Citation.] The right to an impartial adjudicator, be it judge or jury, is such a right. [Citation.] As was stated in Witherspoon, a capital defendant’s constitutional right not to be sentenced by a ‘tribunal organized to return a verdict of death’ surely equates with a criminal defendant’s right not to have his culpability determined by a ‘tribunal “organized to convict.”’ [Citation.] (Gray v. Mississippi, supra, 481 U.S.at p. 668.) Respondent thus asks this Court to visit an argument the high court has previously considered and rejected. Respondent’s argument, which is heavily dependent on the concurring opinion in People v. Riccardi, supra, is essentially as follows: Witherspoon and Witt limit the State’s power to exclude capital case jurors, but this power is neither unilateral nor unlimited and therefore its misapplication is a technical error subject to harmlesserror analysis. (RB 45.) *Chapmanarticulated this standard: “[B]efore a federal constitutional error can be held harmless, the court must be able to declare a belief that it was harmless beyonda reasonable doubt.” Chapmanv. California, supra, 386 U.S.at p. 24.) 7 aaa anit at eat As noted, respondent relies on the concurring opinion in Riccardi for his harmless error argument. The concurrence discussed and contrasted the reasoning and rulings in Gray v. Mississippi, supra, with Ross v. Oklahoma (1988) 487 U.S. 81, and noted that “the Ross majority declined to apply the reasoning articulated in the Gray court’s majority opinion — that an error in ruling on a challenge for cause, which might have affected the ultimate composition of the jury as a whole, always requires reversal.” (People v. Riccardi, supra, 54 Cal.4th at p. 843, conc. opn. of Cantil-Sakauye, C.J.) Ross instead applied harmless error analysis in a situation involving the erroneous inclusion of a prospective juror who stated he would automatically vote for death if the defendant was found guilty. (Ross v. Oklahoma, supra, 487 U.S.at pp. 83-87.) The concurring opinion noted that the Gray majority based its automatic reversal rule on the reasoning that Witherspoon-Witt error in excluding a qualified juror affects the composition of the jury panel as a whole. By contrast, while the Ross majority criticized this reasoning and found the rationale “too sweeping to be applied literally.” (People v. Riccardi, supra, 54 Cal.4" at p. 843, conc. opn. of Cantil-Sakauye, C.J.) The Ross court then disagreed on the appropriate remedy, holding instead that such an error could be found harmless. The concurrence concluded that “Ju]ltimately, the difference between Gray and Ross perhaps boils down to a question of policy.” (People v. Riccardi, supra, 54 Cal.4th at pp. 842-845, conc. opn. of Cantil-Sakauye, C.J.) The concurring opinion invited clarification by the high court, noting that “[a]ppellate courts around the country would certainly be assisted if the United States Supreme Court were to provide further elucidation on this important subject... .” (/d., at p. 846.) However, as Justice Liu pointed out in his separate concurring opinion, Ross factually distinguished Gray by noting that in Gray it was impossible to know with certainty whether the prosecution would have used a peremptory challenge to remove the wrongly excused juror. In Ross, on the other hand, the prospective juror was in fact removed, thus eliminating the need to speculate 8 whether the juror would have been excused by peremptory challenge in the absence of the erroneous ruling. Ross thus declined to extend the rationale of Gray beyond circumstances involving an erroneous excusal for cause because it is impossible to analyze prejudice when a qualified juror has been wrongfully excused. (People v. Riccardi, supra, 54 Cal.4th at p. 847, conc. opn. of Liu, J.) Gray wasdecided in 1987 and Ross in 1988. Justice Liu pointed out in his concurring opinion that both cases have been repeatedly applied by state and federal courts and therefore the doctrine of stare decisis offers no basis for reconsidering this issue. The Chief Justice contends that Gray and Ross considered together lack a certain theoretical purity. (See conc. opn. of Cantil- Sakauye, C. J., ante, at pp. 834-844.) But Ross itself makes explicit the ground ofdistinction between the two cases, and in the two and a half decades since Gray and Ross were decided, state and federal courts have dutifully applied their respective holdings without complaint and without any split of authority. There appear to be few cases wherea trial court has erroneously excluded a prospective juror for cause resulting in an unknowable effect on the composition of the jury as a whole. But in the few cases wherethis has occurred, courts have consistently applied Gray. (See Peoplev. Stewart (2004) 33 Cal.4th 425, 432; People v. Heard (2003) 31 Cal.4th 946, 951; Szuchon v. Lehman (3d Cir. 2001) 273 F.3d 299, 329-331; U.S. v. Chanthadara (10th Cir. 2000) 230 F.3d 1237, 1272-1273.) There are significantly more cases wherea trial court has erroneously failed to exclude a prospective juror but the juror did not end up sitting on the jury. In such cases, courts have consistently applied Ross to find harmless error. (E.g., People v. Farley (2009) 46 Cal.4th 1053, 1096; People v. Wallace (2008) 44 Cal.4th 1032, 1056; People v. Gordon (1990) 50 Cal.3d 1223, 1246-1247; Beuke v. Houk (6th Cir. 2008) 537 F.3d 618, 638; Soria v. Johnson (Sth Cir. 2000) 207 F.3d 232, 242-243 & fn. 12; US. v. Nururdin (7th Cir. 1993) 8 F.3d 1187, 1191; Pickens v. Lockhart (8th Cir. 1993) 4 F.3d 1446, 1450-1451; U.S. v. Farmer (11th Cir. 1991) 923 F.2d 1557, 1566; Pursell v. Horn (W.D.Pa. 2002) 187 F. Supp. 2d 260, 322; Ward v. State (Ind. 2009) 903 N.E.2d 946, 954— 955.) Neither Gray nor Ross, singly or together, has proven unworkable. No factual premise of either decision has changed in 9 oa the past 25 years. And far from having been eroded by subsequent legal developments, both cases have been repeatedly and faithfully applied by state and federal courts. There is no basis in the doctrine of stare decisis for revisiting this settled law. (People v. Riccardi, supra, 54 Cal. 4th at pp. 847-848, conc. opn., Liu, J. Because, as Justice Liu explained, there is no basis in the doctrine ofstare decisis for revisiting this settled law, respondent’s request lacks merit and should be rejected. 10 GUILT PHASE ISSUES I APPELLANT?’S RIGHTSTO A FAIR TRIAL, TO PRESENT A DEFENSE, AND TO THE PRESUMPTION OF INNOCENCE WERE PREJUDICED BY HEIGHTENED COURTROOM SECURITY; THE TRIAL COURT DID NOT BASEITS SECURITY ORDER EXCLUSIVELY ON CASE-SPECIFIC REASONS AND DID NOT STATE ON THE RECORD WHY THE NEED FOR THE HEIGHTENED SECURITY MEASURES OUTWEIGHED POTENTIAL PREJUDICE TO THE DEFENDANTS As explained in Appellant’s Opening Brief (AOB 83-97), the defense objected to the presence of exceptionally heavy courtroom security and to the prejudicial impression such a level of security would have uponthe jurors and the trial. (SRT 1201-1202.) As appellants explained, the court failed to exercise its own discretion and instead deferred to the Sheriff's Department’s judgment without independently analyzing the need for that level of security and its potential impact uponthetrial. A. The Flaws in Respondent’s Contentions Respondent argues that heightened courtroom security was justified by various incidents involving appellants in jail. (See, e.g., RB 46-48.) However, while some of the incidents respondent discusses might have justified heightened security in jail, most of these incidents had nothing to do with appellants’ behavior in the courtroom. For example, respondent notes that appellant had a pencil in his cell when he had been previously limited to crayons as writing equipment. (RB 48.) The possession of a pencil in his cell may have been a violation ofjail rules, but it cannot be said to be a major threat to the security of the trial, particularly when defendants can be searched prior to entering the courtroom. 11 a ai ] Other evidence respondent cites of appellants’ behavior in the jail, while certainly more violent, also reflects conditions in the jail, had little to do with appellant’s likely behavior in the courtroom, and was moreover outdated. Most of the incidents to which respondentpoints occurred in the jail in 2001, and even the pencil incident occurred in 2002, whereas the motion on excessive security was not heard until 2005, four years after the violent incidents in the jail. (2RT 613, SRT 1197.) Four-year-old incidents occurring in the violent, threatening surroundings of a jail have little relevance to determining whether a defendant might most potential security threats in a courtroom. Furthermore, if four-year- old incidents in the jail were to be introduced against them, the court at a minimum should have inquired into whether any similar misconduct had occurred in the meantime or whether the defendants appeared to have adjusted to institutional restrictions. In failing to even conduct such an inquiry, the court failed to exercise its discretion. Even when respondentpoints to incidents that occurred in the courtroom, the incidents were plainly mere macho posturing rather than real threats. For example, respondent notes that appellant pointed his finger at the deputy district attorney and said he wished he had a gun. (RB 48.) This gesture and comment may be unnerving, but it does not justify security measures in the courtroom that denied appellant a fair trial. Moreover, the court clearly did not consider this incident to be particularly threatening. In fact, in the hearings of February of 2005, when courtroom security was discussed, the noted that appellants had “conducted themselves in a very appropriate manneratall times with this court, and I think that once we get going, that the sheriff will see that there is probably not the need to have such a numberofbailiffs.” (SRT 1202:16-1203:10; italics added.) Respondentagrees that extraordinary security measures “must be justified by a particular showing of manifest need.” (RB 52, citing People v. Stevens (2009) 47 Cal.4th 625, 633-634.) However, apart from conduct that occurred two 12 years before in jail, in light of their good behaviorat all times in court, respondent is unable to pointto facts that would justify extraordinary security. In short, respondent’s argument regarding appellants’ prior misconduct in jail is a red herring. Unlike the courtroom,jail is a violent environment in which inmates must defend themselves to survive. However, prior to being transported to court, each inmate is searched, subject to somerestraint, and under the constant supervision of watchful eyes. Not only is the courtroom substantially different from the environment of the jail, but also the evidence of appellants’ violent behavior was four years old and hadlittle relevance to appellants’ likely behavior in court, which the court itself had found to be exemplary. The second problem with respondent’s contentions is that respondent ignores the fact that the court failed to exercise its discretion in making this ruling. Instead, the judge clearly stated that he was relying on the judgment of the sheriffs because he normally left security issues up to the bailiffs, whom the judge viewed as “the experts.” (SRT 1202.) Thereafter the judge gave no indication that he was using its own discretion to evaluate this issue independently, putting specific reasons on the record. A trial judge cannot simply leave the matter of courtroom security up to “the experts” but must instead make a ruling which primarily protects the due process rights of criminal defendants to a fair trial while also taking into account the state’s need for security adequate to maintain custody of the defendant and protect the safety of court personnel and the public. Permitting the sheriff to make all decisions regarding security without performing this analysis is an abdication of the trial court’s fundamental responsibility to ensure a fair trial. The court’s abdication in this case is in contrast to law set forth in the numerouscases cited in the Opening Brief (AOB at pp. 86-89, 93-95), including Holbrook v. Flynn (1986) 475 U.S. 560, People v. Stevens (2009) 47 Cal.4th 625, 644, People v. Hernandez (2011) 51 Cal.4th 733, 742, 744, and People v. Mar 13 (2002) 28 Cal.4th 1201. All of these cases clearly hold that the court mustuseits own discretion rather than rely excessively on the policies of security personnel. In fact, the trial court’s rationale for its ruling in this case was specifically rejected in Hernandez where this Court found the trial court did not base its decision on a “thoughtful, case-specific consideration of the need for heightened security” but on a standard policy. (People v. Hernandez, supra, 51 Cal.4th at p. 743.) B. Prejudice Respondent contends that “[t]he mere presence of security guards in the courtroom ‘is seen by jurors as ordinary and expected.’ ” (RB 60, citing Peoplev. Stevens (2009) 47 Cal.4th 625, p. 634.) It is probably true that the mere presence of security guards is normal and would be perceived to be so by the jury. However, this case involved not the mere presence of security, a feature common in courtrooms,airports, and courtrooms, but the presence of exceptional security. It is precisely this exceptional level of security that prejudices criminal defendants, depicting them dangerous persons and distracting jurors from their task of determining the defendants’ guilt or innocence solely on the basis of the evidence presented. Similarly, respondent notes that “there are a wide range of inferences that a juror might reasonably draw from the presence of additional courtroom security officers...” (RB 60.) While this may be true, respondentignores the fact that one of those inferences is that the defendants are unusually dangerous men. Respondent’s contentions regarding prejudice focus heavily on the fact that there was evidence supporting the verdict. (RB 60-62.) However, appellant is not here arguing that there was insufficient evidence to support the verdict, but rather that the verdict was improperly influenced by security measures which violated appellants’ due process rights. Respondent’s arguments also ignore the likely impact of these security measures both on the jurors and the defendants. 14 The deprivation of a federal constitutional right requires application of the Chapmanprejudice standard and shifts the burden to respondent to show beyond a reasonable doubt that the error did not affect the outcome. (Chapman v. California , supra, 386 U.S. at p. 24.) Respondent cannot show that the presence of eight uniformed and armed deputies in the courtroom was nevernoticed by any juror, and cannot show that no jurors came to the conclusion that these were particularly dangerous defendant requiring the utmost security. Likewise, respondent cannot show that the unusual physical limitations on appellants’ ability to move imposed by the physical restraints would not go unnoticed by the panel naturally looking at the defendants to judge how they were reacting. Likewise, the courts have noted that there is an unavoidable impact on the defendant when restraints are used. People v. Mar (2002) 28 Cal.4" 1201, discussed the problems inherent in restraints, which this court had previously recognized by People v. Duran (1976) 16 Cal.3d 282, noting that the impact of such restraints in court not only prejudices the jurors but also constitutes an “affront to human dignity” and impacts a defendant's decision to take the stand. (Mar, at p. 1216, quoting Duran, at p. 290.) It was this factor which caused Duran to state that its principles applied to both “visible” and “concealed” restraints. (/d., at pp. 291-292.) As a result, Mar held that in determining what security measures to employ, trial courts should adopt “the least restrictive measure that will satisfy the court's legitimate security concerns.” ([bid.) The United States Supreme Court has also recognized that the use of shackles has a negative effect beyond the prejudicial impact on a jury which might become aware of the shackles. The high court found that the use of shackles was itself “an affront to the very dignity and decorum of the judicial proceedings that the judge is seeking to uphold.” (illinois v. Allen (1970) 397 U.S. 337 at pp. 343-344.) Furthermore, the principal value protected by a defendant’s right to be physically present at his trial-- his ability to communicate with his counsel-- is greatly reduced in a condition of total restraint. Ubid) In 15 ie the short, the prejudicial impact of excessive restraints and heightened security measures goes beyond the impact such measure may have upon the jury and includes other factors that are less tangible but are nonethelessreal. Finally, in capital cases, heightened security measures not only impact the fundamental fairness of the trial but also violate a capital defendant’s Eighth Amendmentright to reliable guilt and penalty verdicts. The decision whether or not to impose death is a “moral” and “normative” decision. (People v. Hawthorne (1992) 4 Cal.4th 43; People v. Hayes (1990) 52 Cal.3d 577, 643.) Otherwise stated, the verdict is a highly “moral and . . . not factual” determination. (People v. Brown (2004) 33 Cal.4th 382, 400; People v. Rodriguez (1986) 42 Cal.3d 730, 779.) Ion determining whether death is the appropriate punishment, the penalty phase jury must look beyond the facts of the crime and consider the individual character and backgroundofthe defendant. The profoundly prejudicial message conveyed by excessive restraints necessarily affects the jury’s determination regarding the likely future dangerousness of the defendants and the appropriateness of the death penalty. Accordingly, the excessive security measures employed in this case compel reversal of the guilt and penalty judgment. 16 Il THE TRIAL COURT ERRED IN ADMITTING THE JAILHOUSE INTERVIEW OF APPELLANTS BECAUSE THOSE STATEMENTS WERE PART OF SETTLEMENT NEGOIATIONS AND WERE PRIVILEGED UNDER EVIDENCE CODE SECTION1152 A. Introduction Asdetailed more fully in Appellant’s Opening Brief (AOB 98-99), prior to trial the Deputy District Attorney andtrial prosecutor Darren Levine interviewed appellants in the Los Angeles County Jail at a time when appellants represented themselves. Those interviews were tape-recorded. Attrial, over multiple defense objections, the trial court allowed the jury to hear redacted versions of the taped interviewsas part of the prosecution’s case-in- chief.. Appellant contends that these statements were made during plea negotiations and therefore their admission was prohibited by statute and public policy, as appellant explains below. (Evid. Code, § 1153; Pen. Code, § 1192.4; Bryan v. Superior Court (1972) 7 Cal.3d 575, 588 (policy favoring settlement of criminal cases underlies the exclusionary rule). B. TheIssue Is Not Waived Respondent contends that appellant has waived this issue becauseat trial appellants’ attorneys only objected under Miranda v. Arizona (1966) 384 U.S. 436 and further argues that appellants spoke to the Deputy District Attorney because of promises of leniency regarding restitution. (RB 75-76.) Respondent is wrong. In People v. Wilson (2008) 43 Cal.4th 1, this court articulated the standard to be applied in determining whether a defendant has properly preserved an issue for purposes of appeal by quoting from People v. Boyer (2006) 38 Cal.4th 412, 441 fn. 17: 17 er 7 ie As to this and nearly every claim on appeal, defendant asserts the alleged error violated his constitutional rights. At trial, he failed to raise some orall of the constitutional arguments he now advances. “In each instance, unless otherwise indicated, it appears that either (1) the appellate claim is of a kind (e.g., failure to instruct sua sponte; erroneous instruction affecting defendant's substantial rights) that required no trial court action by the defendant to preserve it, or (2) the new arguments do not invoke facts or legal standards different from those the trial court itself was asked to apply, but merely assert that the trial court’s act or omission, insofar as wrong for the reasons actually presented to that court, had the additional legal consequence ofviolating the Constitution. To that extent, defendant’s new constitutional arguments are not forfeited on appeal. [Citations.] [§] In the latter instance, of course, rejection, on the merits, of a claim that the trial court erred on the issue actually before that court necessarily leads to rejection of the newly applied constitutional ‘gloss’ as well. No separate constitutional discussion is required in such cases, and we therefore provide none.” (Wilson, at p. 13 fn. 3.) Additionally, while a party’s failure to object may preclude a party from asserting an issue, it is not a bar to the issue being resolved by an appellate court if that court sees a need to resolve the issue. As this court stated in People v. Williams (1998) 17 Cal.4th 148, n.6, In Scott [People v. Scott (1994) 9 Cal.4th 331], we held only that a party cannot raise a “complaint[] about the manner in which the trial court exercises its sentencing discretion and articulates its supporting reasons ... for the first time on appeal.” (/d. at p. 356.) We did not even purport to consider whether an appellate court may address such an issue if it so chooses. Surely, the fact that a party may forfeit a right to present a claim of error to the appellate court if he did not do enough to “prevent[]” or “correct[]’’ the claimed error in the trial court (id. at p. 353) does not compel the conclusion that, by operation of his default, the appellate court is deprived of authority in the premises. An appellate court is generally not prohibited from reaching a question that has not been preserved for review by a party. Ud. at p, 161.) 18 Furthermore, as the facts relating to the contention are undisputed and there would probably be no contrary showing at a new hearing, the appellate court may properly treat the contention solely as a question of law and pass onit accordingly. (Ward v. Taggart (1959) 51 Cal.2d 736, 742; Williams v. Mariposa County Unified Sch. Dist. (1978) 82 Cal-App.3d 843, 850.) This is particularly true when the new issue is of "considerable public interest" or concerns "important issues of public policy" and has been briefed and argued before the reviewing court. (See, Wong v. Di Grazia (1963) 60 Cal.2d 525, 532, fn. 9; Hale v. Morgan (1978) 22 Cal.3d 388, 394; Pena v. Municipal Court (1979) 96 Cal.App.3d 77, 80-81.) In this case, the facts relating to this issue are not in dispute, and therefore it is a pure issue of law. There is no reason whythis court should not address the issue. (People v. Brown (1996) 42 Cal.App.4th 461, 475; People v. Blanco (1992)10 Cal.4th 1167, 1172.) Furthermore, waiver is not a favored concept and should be sparingly applied, especially in a criminal case. “Because the question whether defendant has preserved his right to raise this issue on appeal is close and difficult, we assume he has preserved his right, and proceed to the merits.” (People v. Bruner (1995) 9 Cal..4th 1178, 1183, n. 5; see also People v. Wattier (1996) 51 Cal.App.4th 948, 953.) "Whether the [general] rule shall be applied is largely a question of the appellate court's discretion." (People v. Blanco (1992) 10 Cal.App.4th 1167, 1172-1173.) A finding of waiveris not lightly to be made. (Moore v. Michigan (1957) 355 U.S. 155, 161.) As has been pointed out in another context, "[i]t has been pointed out that ‘courts indulge every reasonable presumption against waiver' of fundamental constitutional rights and that we ‘do not presume acquiescence in the loss of fundamental rights.' A waiver is ordinarily an intentional relinquishment or abandonmentof a knownright or privilege." (Edwards v. Arizona (1981) 451 U.S. 477, 482; Johnson v. Zerbst (1938) 304 U.S. 458, 464.) 19 Additionally, the fact that the Deputy District Attorney advised appellants that any statements made could be used against them does not act as a waiver of any rights they may have had in regards to settlement negotiations because any purported waiver was not knowing. "A waiver is knowing and intelligent if made with a full awareness of both the nature of the right being abandoned and the consequences of the decision to abandonit." (United States v. Harper (8th Cir. 2006) 466 F.3d 634, 643.) "A waiver is voluntary if it was the product of a free and deliberate choice rather than intimidation, coercion, or deception." (United States v. Gaddy (8th Cir. 2008) 532 F.3d 783, 788; see, Glasser v. United States 315 U.S. 60, 71; Adams v. United States ex rel. McCann (1942) 317 U.S. 269, 277-281.) The inquiry into the validity of waiver has two distinct elements. (Moran v. Burbine (1986) 475 U.S. 412, 421.) The court must determine, first, whetherit was voluntary and second, whether it was knowing and intelligent. (/bid.) This determination is to be made based on the "totality of the circumstances" Michael C. (1979) 442 U.S. 707, 725.) (Farev. In this case, while appellants had definite goals in these discussions,1.e., to secure either a sentence of no more than fifty years with no life-in-prison provision and/or a limit on restitution, they were laymen with no legal training, and it is unlikely that they would know that they could negotiate for these things in confidence. If they wanted to negotiate in pursuit of these goals, their only option wasto talk to the prosecution. Furthermore, unlike a police officer taking a suspect into custody, a deputy district attorney should be held to a higher standard in his dealings with defendants due to knowledge of the law, including the fact that settlement negotiations are confidential. For a prosecutor to advise and obtain a waiver only of Mirandarights, and fail to advise appellants of other potential privileges and consequences that could result from negotiations, was to use his training and position to take advantage of pro per defendants unversedin the law. 20 It is particularly egregious for the professional prosecutor to take advantage ofthe ignorant pro per. As Justice Black wrote for the Court: The Sixth Amendment stands as a constant admonition that if the constitutional safeguards it provides be lost, justice will not “still be done.” It embodies a realistic recognition of the obvious truth that the average defendant does not have the professional legal skill to protect himself when brought before a tribunal with powerto take his life or liberty, wherein the prosecution is presented by experienced andlearned counsel. That which is simple, orderly, and necessary to the lawyer-to the untrained layman may appear intricate, complex and mysterious. (Johnson v. Zerbst (1938) 304 U.S. 458, 462-463.) C. The Flaws In Respondent’s Contentions Respondent contends that the interviews with appellants were not part of negotiations designed to reach a plea bargain, and therefore are not prohibited by Evidence Code section 1153 or Penal Code section 1192.4. However, respondent’s argument relies entirely on a highly selective review of the discussions. Respondent refers to portionss of the negotiations between appellants and the prosecution, respondent ignores crucial sections of the negotiations. In addition, it must be remembered that although the prosecution was represented by experienced litigators, the defendants were uprepresented when they were engaged in these discussions. As amateurs they should not be held to hypertechnical, legalistic standards in articulating their intent. Examining the discussions from a lay-person’s perspective, it is clear that appellants were engaged in discussions with an intent to resolve at least some aspects of the case, if not the entire case. Appellants’ intent becomes particularly apparent in view of the fact that they repeatedly asked deputy district attorney Levine about the possibility of an outcome less than the death penalty. Achieving that result would both obviously 21 er Sis and necessarily involve a plea bargain without regard to whether the words “plea bargain” were ever mentioned. Whether appellant’s used precise legal terminology correctly is irrelevant when one considers the only possible way their clear purpose could be achieved. Asnoted in Respondent’s Brief, in the February 21, 2002 meeting, deputy district attorney Levine reminded appellants that they had come to him asking for “50 years.... [{] . . . without the ‘L.’ [life sentence].”» Appellant wanted that deal because if he got the 50 years and nolife sentence, “I can get married and get a bone yard visit. . . . [§] But if you give me the ‘L,’ I have no sex.” (RB p. 66, citing DPSupp II CT 51:21-22, 24.) Explaining that this 50-year sentence would be the functional equivalent of life-without-parole, appellant added, “If you give me 50 years, I guarantee you I won’t live 50 years. Ifyou give me 85%, which I haveto get it —”’ (DPSuppIIICT 52:8-9.)° Obviously, achieving appellant’s goal of a 50-year sentence would necessarily involve a plea bargain. It would be impossible for the prosecution to agree to a deal involving a maximum of 50 years without a guilty plea. Later during this February 21 meeting, as respondent notes, appellants asked for a cap on restitution. (RB p. 69, citing DPSupp III CT 74-75.) They also asked for assurances of a limit on restitution during the March 28, 2002 meeting. (Supp. III 1CT 99.) The foregoing portions of the record make clear that appellants were negotiating with the prosecution in an effort to achieve a result that would necessarily involve a plea bargain — a sentence of 50 years with nolife in prison — and also for a limit to restitution. It is only by ignoring the fact that appellants > The 85% appears to be a reference to section 2933.(c) which limits the maximum conduct credits that can be awarded to a defendant convicted of a felony listed in section 667.5. Under this formula, appellant wouldstill be serving a de facto life term. 22 were seeking something very specific that respondent can argue that the statements were not madein the course of plea negotiations. It is also important to recall that appellants were charged with five counts of first degree murder, seven counts of attempted murder, and a variety of other offenses. By the end oftrial, appellants indicated a preference for the death penalty rather than life in prison. For respondent to suggest that any negotiations would depend on appellant seeking to enter into a “plea bargain” ignores the reality that it is inconceivable that the District Attorney would have agreed to any “plea bargain” that would haveresulted in anything less than a very long prison term. Consequently, appellants could ask for little in return beyond what they were asking for — a term with no life sentence and leniency when the case reached a stage whererestitution and fines would bein issue. The fact that the prosecution lived up to its part of the deal when the case reached that stage of restitution does not mean that they were not involved in negotiations as respondent contends (See RB 77-78.). In short, appellant was bargaining for the most for which he could ask — a request by the District Attorney’s Office for leniency in restitution fines and a term with no life sentence. Thus, appellants were clearly negotiating in with the prosecution for a result that would have a favorable impact on appellants’ sentences. Respondent’s position that these statements were not madein the course of negotiations should also be rejected as urging a too-narrow,literal reading of section 1192.4 and Evidence Codesection 1153. To the contrary, and as noted in Appellant’s Opening Brief (AOB 106-107), a liberal reading of the statute must be applied to promote the policies underlying the rule. Althoughthestatutes refer to offers to plead guilty, in People v. Tanner (1975) 45 Cal.App.3d 345, this Court held that in order to promote candor in negotiations the statutes must be read as applying to “any incidental statements made in the course of plea 23 negotiations ....” (id. at pp. 351-352, see also People v. Crow (1994) 28 Cal.App.4th 440.) D. The Cases Cited By Respondent. In support of his argument, respondent relies on a number of inapposite cases. For example, respondent cites People y. Posten (1980) 108 Cal.App.3d 633. (RB 80.) In that case, the police went to Virginia to pick up the defendant and bring him back to California for trial. On the way back to California he had to spend several days in close quarters with the police officers. During that time, he requested a copy of the complaint, discussed the charges against him, and “apparently” tried to work out a deal regarding a plea. The Court of Appeal held that the defendant’s offers “were not made in the course of bona fide plea negotiations but were merely unsolicited admissions by appellant without any understanding that they would be inadmissible.” (/d. at p. 648.) Posten has no relevance to this case. First, it is unclear whether the defendant in that case actually thought he was engaged in negotiations, or whether anything resembling negotiations actually took place. The court stated only that the defendant was “apparently” trying to work out a deal. The court stated that appellant asked for a copy of the complaint. However, he did not seek a particular desired outcomeor other resolution of the case, such as being charged with a lesser offense. More importantly, however, and unlike the situation in this case, the defendant in Posten was not negotiating with the deputy district attorney prosecuting his case. It goes without saying that police officers escorting a defendant back to California do not have the authority to engage in plea negotiations. The defendant in Posten was simply in close quarters with the police for an extended period of time and chose to make conversation about his case. 24 Respondentalso cites People v. Leonard (2007) 40 Cal.4th 1370. (RB 81.) That case is also not relevant here. In Leonard the defendant in open court, on the record, suddenly raised his finger and blurted out that he was guilty. (ld. 1410.) Neither the prosecution nor the court did anything to elicit this statement, and the defendant was not pro per but was represented by two attorneys. Far from constituting an offer to negotiate, the defendant’s statement in Leonard was simply an outburst and a disruption of the proceedings. By contrast, appellants in this case were seeking very specific benefits as part of discussions in which they were acting in pro per-- a limit of 50 years on the sentence or a limit on restitution. E. Summary As appellant has shown above and in the opening brief, a review of the exchanges between Levine, his investigator, and appellants establishes that the parties were in negotiations for either a sentence offifty years in prison or, in the alternative, a reduced restitution amount. As such, appellants’ statements, made in the course of bona fide plea bargaining negotiations, should have been excluded under the rule of Tanner. Because appellants were prejudiced by the improper admission ofthis evidence, the conviction must be reversed. 25 bis: Cl IV APPELLANT WASDENIED HIS RIGHT OF CONFRONTATION UNDER THE SIXTH AMENDMENT WHEN THE RESULTS OF ARTURO MADRIGAL’S AUTOPSY WERE ENTERED INTO EVIDENCE THROUGH THE IN-COURT TESTIMONY OF A FORENSIC PATHOLOGIST WHO DID NOT PERFORM THE AUTOPSY A. Summary of Contentions Appellant argued in the opening brief that his Sixth Amendmentright to confront witnesses against him was violated when Dr. Lisa Scheinin, who neither performed nor observed the autopsy of Arturo Madrigal, was allowedto testify to the findings and conclusions made by Dr. Juan Carrillo, the forensic pathologist whoactually performed the autopsy. (AOB 113-137.) Respondent contends that appellant has failed to show that his Sixth Amendment right of confrontation was violated by the admission of Dr. Scheinin’s testimony. (RB 86-88.) Respondentinitially contends that appellant has waived his claim because he failed to object to Dr. Scheinin’s testimony on this constitutional basis. (RB 88-91.) Respondent next argues there was no Confrontation Clause violation because Dr. Carrillo’s opinion and conclusions were prepared before appellant was a suspect in Madrigal’s murder and they were therefore not testimonial. (RB 91-99.) Respondent’s final contention is that any error was harmless. (RB 99-101.) B. Appellant’s Claim Has Not Been Forfeited Respondent argues that because appellant did not raise a Confrontation Clause objection to Dr. Scheinin’s testimony at trial, this issue has not been preserved for appeal. (RB 88-91.) Appellant anticipated and addressed respondent’s claim of procedural default of this issue in the opening brief. (AOB 134-137.) There, appellant 26 asserted that any claimed procedural fault resulted from trial counsels ineffective performancein failing to object to the testimony on Sixth Amendment grounds. Crawford was decided in 2004; appellant’s trial was held in 2005. By then, Crawford had been recognized as a significant development in criminal defense jurisprudence. Appellant argued there was no satisfactory explanation for counsel’s failure to object on confrontation grounds. (AOB 140-142.) Respondent argues that appellant should not be allowed to rely on a claim of ineffective assistance of counsel to salvage his claim of error because “trial counsel may have decided not to object to Dr. Scheinin’s testimony because of the relative unimportance ofthe testimony and in order to prevent delays in the trial.” (RB 91.) The argumentis both legally and factually incorrect. First, while a defense attorney’s tactical judgmentcalls generally will not be second-guessed on appeal, the imaginary justifications respondent has advanced are not “tactical” in nature. Even if counsel had somehow concluded that the evidence was “relatively unimportant” or wanted to prevent delays— suppositions for which there is no evidence apart from respondent’s own imagination, and which the following discussion will show to be factually inaccurate-- these rationales have nothing to do with trial strategy or tactics and therefore would not constitute legal justification for a failure to object. Moreover, the evidence in question included evidence pertaining to the gunshot wounds, including the trajectory of the bullets, the age of wounds, the cause of death, and the assignment of death as a homicide-- all facts that were indisputably a critical part of the prosecution’s case. Furthermore, the prosecution presented evidence of the autopsy results as “science,” as objective “corroboration” in arguing appellant was guilty of premeditated murder. The failure to object on confrontation grounds to the hearsay presentation of that evidenceclearly fell below a standard of reasonable competence. The standard of reasonable competence requires defense counsel to diligently investigate the case and research the law. (People v. Thimmes (2006) 27 138 Cal.App.4th 1207, 1212-1213.) Defense counsel in capital cases have a particular duty to assert and preserve legal claims “against later contentions by the government that the claim has been waived, defaulted, not exhausted, or otherwise forfeited.” (American Bar Association Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases (2003), Guideline 10.8(A)(3)(c).) Plainly, defense counsel in this case fell below the standard of reasonable competencein failing to make a Crawford based objection. The admission of the autopsy evidence also cannot be said to have been harmless beyond a reasonable doubt with regard to proving that Madrigal’s death was a premeditated murder, as respondent urges this Court to find. (Chapmanv. California, supra, 386 U.S. at p. 24.) Appellant has already discussed the prejudice from this error in his opening brief. (See AOB 133-134.) Briefly, however, the autopsy evidence was the only corpus delicti evidence presented to confirm appellant’s statement regarding the Madrigal murder, and was therefore critical to the prosecution’s case. Without it, the conviction could not have occurred. The error therefore cannot be held harmless under any standard of review. C. The Admission of Testimonial Evidence Violated the Confrontation Clause Respondent contends that because appellant was not a suspect in the death of Madrigal at the time the autopsy was conducted, no Confrontation Clause violation occurred because the autopsy report was not testimonial within the meaning of Confrontation Clause jurisprudence. Respondent further argues the autopsy report was not testimonial because the autopsy was conducted and the report written before appellant was either suspected of committing the crime or arrested for it. (RB 91-99.) Appellant summarized Dr. Scheinin’s testimony at pages 113-114 of the opening brief. As respondent acknowledges, Dr. Scheinin testified not only to the 28 condition of Madrigal’s body, but also to Dr. Carrillo’s opinion and conclusions on the cause of Madrigal’s death as Dr. Carrillo memorialized them in the autopsy report he authored. (RB 98; AOB 115-116; 7RT 1739-1745.) Crawford v. Washington (2004) 541 U.S. 36, 68, established that the prosecution violates the Confrontation Clause when it introduces one witness’s testimonial statements through the in-court testimony of a second witness. The use of testimonial out-of-court statements ordinarily violates the defendant’s right to confront the maker of the statements unless the declarant is unavailable to testify and the defendant had a prior opportunity for cross-examination. (Crawford v. Washington, supra, 541 US.at p. 59.) Respondentrelies on People v. Dungo (2012) 55 Cal.4th 608. (RB 94-98.) In Dungo, this Court held that statements in an autopsy report describing a nontestifying pathologist’s observations of the condition of the victim’s body were not testimonial. Dungo explained that autopsy reports typically contain two kinds of statements — “(1) statements describing the pathologist’s anatomical and physiological observations about the condition of the body; and (2 ) statements setting forth the pathologist’s conclusions as to the cause of the victim’s death.” (Id., at p. 619.) The autopsy report in issue in Dungo contained the nontestifying pathologist’s observations about the condition of the victim’s body. Dungo found such statements to be nontestimonial in nature because “[t]hese statements, which merely record objective facts, are less formal than statements setting forth a pathologist’s expert conclusions.” (/bid.) In People v. Lopez (2012) 55 Cal.4th 569, this Court considered whether a nontestifying analyst’s laboratory report and a colleague’s testimony relating some of the report’s contents violated the defendant’s right to confront and cross- examine the report’s author and concludedit did not. In reaching this decision, Lopez took up the question of whether the critical portions of the laboratory report were made with the requisite degree of formality or solemnity to be considered testimonial in the context of Crawford v. Washington (2004) 541 U.S. 29 a aed iat eb wad 7. os at 36; Melendez-Diaz v. Massachusetts (2009) 557 U.S. 305; Bullcoming v. New Mexico (2011) 564 U.S. (131 S.Ct. 2705; 180 L.Ed.2d 610); and Williamsv. Illinois (2012) 567U.S.___((132 8.Ct. 2221; 183 L.Ed.2d 89). Lopez concluded that to be testimonial the out-of-court statement must have been made with some degree of formality or solemnity, but also noted that the degree of formality remains a matter of dispute among the members of the high court itself. (People v. Lopez, supra, 55 Cal.4th at pp. 581-582.) Lopez also noted that “all nine high court justices agree that an out-of-court statement is testimonial only if its primary purpose pertains in some fashion to a criminal prosecution, but they do not agree on what the statement’s primary purpose must be.” (Ibid.) Dungonoted that an autopsy serves several purposes, only one of whichis criminal investigation, and concluded that “[t]he autopsy report itself was an official explanation of an unusual death, and such official records are ordinarily not testimonial.” (People v. Dungo, supra, 55 Cal.4th at pp. 619-620; Melendez- Diaz v. Massachusetts, supra, 557 U.S. at p. 324 (business and public records generally admissible absent confrontation because they were created for the administration of an entity’s affairs and not for proving somefact attrial.) In his concurring opinion, Justice Chin explained further that the autopsy report did not have the primary purpose of accusing the defendant or any other targeted individual of having committed a crime. Instead, its primary purpose was to describe the condition of the victim’s body. (People v. Dungo, supra, 55 Cal.4th at p. 630 (conc. opn. of Chin, J.).) . In his concurring opinion, Justice Chin noted the presence of some circumstances indicating that the autopsy report in Dungo was prepared for the primary purpose of accusing the defendant of a crime. The defendant was a suspect at the time the autopsy report was prepared; an investigator was presentat the autopsy; and the pathologist was aware that the defendant had confessed before the autopsy report was written. Justice Chin noted that the plurality in 30 Williams had noted that the defendant in that case was not a suspect at the time the autopsy report was written and that nothing in Williams suggested that the defendant’s status as a suspect was anything more than a circumstance of which the Court must take account. (People v. Dungo, supra, 55 Cal.4th at p. 632; Williams, supra, 567 U.S. at p.__—« (132. S.. Ct. at p. 2243.) The keydistinction for Justice Chin was that the opinion concerning the manner of death came from the testifying expert who wassubject to full cross-examination, and not from the report. (People v. Dungo, supra, 55 Cal.4th at p. 632, conc. opn. of Chin, J.; People v. Barba (2013) 215 Cal.App.4th 712, 738.) In contrast, in the present case, as respondent acknowledges, Dr. Scheinin testified to Dr. Carrillo’s opinion and conclusions in the cause of Madrigal’s death that were contained in the autopsy report. (RB 98; see, e.g., 7RT 1739, 1744 (Dr. Scheinin testified that Dr. Carrillo stated his opinion in the autopsy report that Madrigal’s death was a homicide resulting from a gunshot wound to the head.) Respondentrelies on Williams v. Illinois, supra, and argues there was no Confrontation Clause violation here because appellant was not a suspect when the autopsy report was prepared and argues that for this reason the Madrigal autopsy report was not prepared for the primary purpose of accusing a targeted individual. (RB 98-99; Williamsv. Illinois, supra, 132 S.Ct. at p. 2243.) Asappellant noted above, Justice Chin explained in his concurring opinion in Dungo (in which Cantil-Sakauye, C.J., Baxter, J., and Werdegar, J., concutred), that although the plurality in Williams stated the defendant in that case was not a suspectat the time, nothing in the opinion suggested that a targeted suspect was a “requirement” in determining whether the autopsy report was testimonial. Rather, it was a “surrounding circumstance” of which the court must take account. (People v. Dungo, supra, 55 Cal.4th at p. 632; Williams v. Illinois, supra, 132 S.Ct. at p. 2243; see also People v. Barba, supra, 215 Cal.App.4th at pp. 733-734 (how to interpret William.) Indeed, whether a particular individual has been targeted for investigation bears little logical relevance to the question of 31 & ll i whether the contents of the report on a homicide victim’s autopsy or the autopsy surgeon’s conclusions are testimonial in nature. Even if appellant himself was not a suspect at the time the Madrigal autopsy was performed, it defies both reason and experience to argue that forensic pathologists are not aware that their conclusions regarding an autopsy performed on a homicide victim are likely to be presented as evidence in a murdertrial. Here, the trial court erred in not allowing appellant to confront Dr. Carrillo, who was not shown to be unavailable and who had not been previously subject to cross-examination by appellant. (See AOB 119-120 for discussion on the record’s failure to establish that Dr. Carrillo was either unavailable or that appellant had a prior opportunity to cross-examine him.) The Confrontation Clause required that appellant be afforded the opportunity to confront Dr. Carrillo regarding his opinion and conclusions on the cause of Madrigal’s death. The prosecution’s presentation of this evidence through the testimony of Dr. Scheinin violated appellant’s Sixth Amendmentright to confront witnesses against him. D. The Erroneous Admission of Dr. Carrillo’s Testimonial Statements through the In-Court Testimony of Dr. Scheinin Was Not Harmless Beyond a Reasonable Doubt Respondent argues that any Confrontation Clause violation arising from the testimonial statements of Dr. Carrillo through the testimony of Dr. Scheinin was harmless beyond a reasonable doubt. (RB 99-101.) Respondent asserts evidence that Madrigal died from gunshot woundsto the head was overwhelming. Respondent points to Flores’ statement that he “domed” Madrigal and shot him in the face and to other evidence establishing that Madrigal had been shot. (RB 100-101.) However, as appellant observed above and also in his discussion of prejudice in the opening brief (AOB 133-134), the jury was required to find proof of the corpus delicti of the crime independent of Flores’ statement he had 32 “domed” Madrigal, as the court properly instructed the jury. (People v. Beagle (1972) 6 Cal.3d 441, 455; CALJIC No. 2.72; 17CT 4513.) The forensic autopsy evidence that Madrigal was killed by a fatal gunshot wound to the head corroborated Flores’s statement and the prosecution relied uponit. The admission of the autopsy evidence thus cannot be said to have been harmless beyond a reasonable doubt with regard to proving that Madrigal’s death was a premeditated murder. (Chapman v. California, supra, 386 U.S.at p. 24.) 33 he fr & rd oad Vv THE TRIAL COURT COMMITTED FEDERAL CONSTITUTIONAL ERROR WHEN IT ERRONEOUSLY INSTRUCTED THE JURY THAT A PERSON WHOAIDS AND ABETsIS “EQUALLY GUILTY” OF THE CRIME COMMITTED By A DIRECT PERPETRATOR. IN A PROSECUTION FOR MURDER, AN AIDER AND ABETTOR’S CULPABILITY IS BASED ON THE COMBINED ACTS OF THE PRINCIPALS, BUT THE AIDER AND ABETTOR’S OWN MENS REA, AND THEREFORE HIS LEVEL OF GUILT, “FLOATS FREE.” A. Summary of Contentions“ Among other offenses, appellant was convicted by the jury of the first degree murders of George Orlando Flores” (count 4) and Luis Reyes (count 11) and of the attempted willful, deliberate, and premeditated murder of Fernando Gutierrez (Count 46), counts for which Amezcua wasthe shooter. Asdiscussed in greater detail in the Statement of the Facts (AOB 19-21), the prosecution’s evidence showed that around midnight on June 18, 2000, appellant was riding in a Toyota Cressida driven by a woman named Katrina Barber as they passed a residence on Ledford Street in La Puente. George Flores, Robert Perez, and two other men were standing orsitting near a cinder block wall in front of the residence. Barber drove past, turned around, and returned, stopping in front of the residence. As she did so, a grey Monte Carlo driven by Luis Reyes pulled up in front of the residence. Amezcua got out of the Monte Carlo, pulled out a gun, and walked up to Flores. Perez heard a shot and jumped behind a parked car for cover. He heard other shots, possibly from another gun. Barbertestified that appellant fired an AK-47, and that she herself had fired four “Respondent addressesthis issue stating, “appellant Amezcua claimsthatthetrial court erroneously instructed the jury with CALJIC No. 3.00....” (RB, at p. 107.) However, appellant also raised this issue in his opening brief, specifically explaining that the issue also applied to appellant. Although respondent only addresses the argument as to Amezcua, to the extent that reasoning applies to appellant, appellant replies to respondent’s contentions here. ° George Flores was not related to appellant. 34 or five shots from a .22 caliber pistol appellant had handed her. Perez might have heard a gun being loaded in the area where he had seen appellant. Bullets from two guns were found in the area. Flores and another man were fatally shot. The relevant facts pertaining to Reyes, discussed in greater detail in the Statement of the Facts (AOB 22), are as follows. After the Flores shooting, the Toyota Cressida in which appellant and Barber were riding began to have engine trouble and Barber pulled off the freeway. Reyes and Amezcua, who were driving behind them in the Monte Carlo, followed them, and the two cars stopped near each other on a side road. Barber heard gunshots coming from the Monte Carlo and saw Amezcua shoot Reyes, killing him. Appellant asked Amezcua whyhe hadshot Reyes. With regard to the murder of George Flores (Count 4), the jury found true the allegations that appellant personally used a firearm causing death, that the murder was committed for the benefit of a street gang allegation, and that the murder was committed by meansoffiring a firearm from a motor vehicle. The jury also foundtrue the special circumstance allegation of multiple murder. With regard to the murder of Reyes (Count 11), the jury found the murder to be in the first degree and found true the allegation that the murder was committed for the benefit of a street gang allegation. The jury also foundtrue the special circumstance allegation of multiple murder. The trial court instructed the jury stating that those who aid and abet a crime and those who directly perpetrate the crime are principals and equally guilty of that crime. (CALJIC No.3.00; 17CT 4515; 13RT 2958.) Appellant contended in the opening brief that the trial court erred whenit instructed that the actual killer and the aider and abettor are equally guilty of the crime. An aider and abettor of a homicide is not always as guilty as the actual killer. To the contrary, in a homicide prosecution not based on a felony murder theory, the liability of an aider and abettor’s guilt is based on the combined acts of all the principals but the aider and abettor’s own mens rea. An aider and 35 aa abettor may therefore be culpable for a lesser crime than the direct perpetrator and it is error to instruct the jury to the contrary. (People v. McCoy (2001) 25 Cal.4th 1111, 1120; People v. Samaniego (2009) 172 Cal.App.4th 1148, 1164- 1165; People v. Concha (2009) 47 Cal.4th 653, 663; People v. Nero (2010) 181 Cal.App.4th 504, 515-518.) Respondentinitially argues that appellant forfeited this claim by inaction below. (RB 107-111.) Respondent also argues that under the factual circumstances present in this case the trial court did not commit error whenit instructed in the language of CALJIC No. 3.00. (RB 111-113.) Respondent further contends that any alleged error was harmless. (RB 113-115.) Appellant addresses each of respondent’s contentions in the sections that follow. B. Appellant’s Claim Has Not Been Forfeited In the opening brief, appellant noted that defense counsel did not object to this instruction but argued that counsel’s failure to object is unnecessary to preserve the issue because a trial court has an independent duty to correctly instruct the jury regarding applicable legal principles. (Pen. Code, § 1259; People v. Graham (1969) 71 Cal.2d 303, 317-318; AOB 94-95.) It is the trial judge’s duty to see to it that the jury is properly instructed with correct legal principles and to tailor form instructions accordingly. (See, e.g., People v. Woods (1991) 226 Cal.App.3d 1037, 1054-55 [court has duty to "tailor instructionsto fit the facts"].) “[A] court may give only such instruction as are correct statements of the law. [Citation].” (People v. Gordon (1990) 50 Cal.3d 1223, 1275.) This duty requires the trial court to correct or tailor an instruction to the particular facts of the case even though the instruction submitted by the defense was incorrect. (People v. Fudge (1994) 7 Cal.4th 1075, 1110 [judge musttailor instruction to conform with law rather than deny outright]; see also People v. Falsetta (1999) 21 Cal.4th 903, 924 [“trial court erred in failing to 36 tailor defendant’s proposed instruction to give the jury some guidance regarding the use of the other crimes evidence, rather than denying the instruction outright”]; People v. Malone (1988) 47 Cal.3d 1, 49; People v. Hall (1980) 28 Cal.3d 143, 159; People v. Whitehorn (1963) 60 Cal.2d 256, 265; People v. Coates (1984) 152 Cal.App.3d 665, 670-71; People v. Bolden (1990) 217 Cal.App.3d 1591, 1597; People v. Cole (1988) 202 Cal.App.3d 1439, 1446 and cases cited therein; Witkin & Epstein, Cal. Crim. Law (2d Ed. 1988) § 2954,p. 3628.) For example, even thoughthetrial court has no sua sponte duty to instruct upon the elements of other crimes introduced at the penalty phase as aggravating factors, if instructions are given, the court has a duty to instruct correctly. (People v. Cummings (1993) 4 Cal.4th 1233, 1337; see also People v. Castillo (1997) 16 Cal.4th 1009 [even whena trial court instructs on a matter on whichit has no sua sponte duty to instruct, it must do so correctly]; People v. Malone (1988) 47 Cal.3d 1, 49; People v. Montiel (93) 5 Cal.4th 877, 942.) Appellant contended that the facts of the Flores, Reyes, and Gutierrez crimes were all situations in which appellant’s liability was arguably less than that of Amezcua because evidence of appellant’s involvement in these shootings—particularly evidence of mens rea—was sparse at best. For that reason, appellant was entitled to have the jury directed to evaluate the evidence to see whether he possessed the required mental state for the charged crimesat the time the crimes were committed. (See AOB 94-95.) The gist of respondent’s argument is that appellant forfeited his claim because he neither objected to the instruction nor requested clarifying or amplifying language below. (RB 108-111.) Respondent argues that because the questioned “equally guilty” language of CALJIC No. 3.00 is a generally correct statement of the law, appellant was obliged to request that the instruction be modified in order to preserve the issue for appellate review. (RB 110-111.) Respondent supports this contention with citations to People v. Mejia (2012) 211 Cal.App.4th 586, 624; People v. Lopez (2011) 198 Cal-App.4th 1106, 1118-1119; 37 People v. Canizalez (2011) 197 Cal.App.4th 832, 849; People v. Samaniego (2009) 172 Cal.App.4th 1148, 1163. (RB 110-111.) However, as appellant explained in the opening brief, Samaniego and Nero held that to the extent the pattern aiding and abetting instructions described aiders and abettors and direct perpetrators as being “equally guilty,” the instructions were misleading. (AOB 172-175.) Both Samaniego and Nero based their holdings on this Court’s holdings in People v. Concha (2009) 47 Cal.4th 653, 663, and People v. McCoy (2001) 25 Cal.4th 1111, 1120, that an aider and abettor’s guilt in a homicide prosecution for both the substantive offense and the degree of the crime is based on the combinedacts of all of the principals, but on the aider and abettor’s own particular mens rea. (AOB 93-94, 97-104.) Mejia, upon which respondentrelies, characterized this description of the law on the liability of principals as an “unremarkable proposition,” but ruled that the defendants in that case had forfeited their claim of error by failing to request modification or amplification below. (People v. Mejia, supra, 211 Cal.App.4th at p. 624.) The Court in Lopez, supra, noted that the Judicial Council of California had amended CALCRIM No. 400 to remove the “equally guilty” language, but Lopez nevertheless characterized the instruction with the “equally guilty” language as being “generally accurate, but potentially incomplete in certain cases,” and held that a request for modification was necessary in order to preserve the issue for appeal. (People v. Lopez, supra, 198 Cal.App.4th at pp. 1118-1119.) In Canizalez, supra, the Court of Appeal, quoting from Samaniego, foundthat the former version of CALCRIM No. 400, which included the “equally guilty” language, “is generally an accurate statement of the law.” (People v. Canizalez, supra, 197 Cal.App.4th at p. 849.) In People v. Nero, supra, the Court of Appeal, in contrast, concluded: “We believe that even in unexceptional circumstances CALJIC No. 3.00 and CALCRIM No. 400 can be misleading.” (People v. Nero, supra, 181 Cal.App.4th at pp. 517-518.) Nero noted that the jury in its case had received 38 multiple instructions from which it should have known that the mental states of the direct perpetrator and the aider and abettor were not linked, but the jury still asked if the aider and abettor could be guilty of a greater or lesser offense than the direct perpetrator. Nero understood this to mean that the pattern instruction (CALJIC No. 3.00) with its “equally guilty” language was confusing. ([bid.) This Court made clear in McCoy and again, almost a decade later, in Concha, that an aider and abettor is liable for the combined acts of all the principals, but only for his own mens rea. McCoy explained that each person’s level of guilt “floats free” because each person’s mensrea“floats free.” (People v. McCoy, supra, 25 Cal.4th at p. 1121.) Given this court’s clear statement of the law of aider and abettorliability in McCoy and Concha, the reasoning applied by thecourts in Samaniego, Mejia, Lopez, and Canizalez is flawed. This Court has repeatedly held that direct perpetrators and aiders and abettors are “equally guilty” only in certain evidentiary circumstances. Indeed, even Mejia acknowledged “that the extent of an aider and abettor’s liability is dependent upon his particular mental state, which may, under the specific facts of any given case, be the same as, or greater or lesser than, that of the direct perpetrator.” (People v. Mejia, supra, 211 Cal.App.4th at p. 624.) Despite its recognition that aider and abettor liability is dependent upon the aider and abettor’s particular mental state, Mejia and the other cases upon which respondentrelies concluded that as a general proposition the “equally guilty” language of CALJIC No. 3.00, as read to appellant’s jury, was a correct statement of the law. However, that “general proposition” is simply wrong. McCoy and Contra teach that the accurate “general” legal proposition on aider and abettor liability is that the extent of an aider and abettor’s liability is dependent uponhis particular mental state. In contrast, the statement of law that principals are equally guilty does not describe a general proposition of law, but rather a specific statement of law that is correct or not depending on the specific facts of the case. 39 il) Hi ii ia ig he ste For that reason, the line of cases upon which respondent relies does not withstand scrutiny. Moreover, the removal of the “equally guilty” language from CALCRIM 400 and CALJIC No. 3.00 by the Judicial Council of California and West’s Committee on California Criminal Jury Instructions, respectively, strongly suggests that the Judiciall Council does not view the “equally guilty” language as an accurate statement of the law. Appellant contended in the opening brief that he has not forfeited his claim of error because a trial court is obligated to correctly instruct the jury on the applicable law. (AOB 181-182.) “The trial court’s duty to fully and correctly instruct the jury on the basic principles of law relevant to the issues raised by the evidence in a criminal case is so important that it cannot be nullified by defense counsel’s negligent or mistaken failure to object to an erroneousinstruction or the failure to request an appropriate instruction.” (People v. Avalos (1984) 37 Cal.3d 216, 229; People v. Hernandez (1988) 47 Cal.3d 315, 353.) In addition, Penal Code section 1259 gives this Court authority to review any instruction given, even if no objection was madebelow if, as happened here, appellant’s substantial rights were affected by the misinstruction. Upon an appeal taken by the defendant, the appellate court may, without exception having been taken in the trial court, review any question of law involved in any ruling, order, instruction, or thing whatsoever said or doneat the trial or prior to or after judgment, which thing was said or done after objection made in and considered by the lower court, and which affected the substantial rights of the defendant. The appellate court may also review any instruction given, refused or modified, even though no objection was madethereto in the lower court, if the substantial rights of the defendant were affected thereby. (Penal Code section 1259.) For these reasons, appellant’s claim oferror is not forfeited. 40 C. The Trial Court Erred in Instructing That Principals Are Equally Guilty Given the Facts in This Case Respondent advances twotheories in an attempt to argue that there was no instructional error under the circumstances of this case. (RB 111-113.) Neither argument is persuasive. Respondentfirst contends there was noinstructional error becausethetrial court instructed the jury with CALJIC No. 3.01, which states that aider and abettor liability includes the requirements of knowledge, intent, and conduct, and also instructed the jury in accordance with CALJIC No. 17.00 that it must separately decide each defendant’s guilt. (RB 111-112.) The problem with this analysis is perhaps best illustrated by respondent’s own argument. Appellant respectfully directs this Court to the first full paragraph of page 112 of respondent’s brief, which begins in this manner: “By instructing the jury with CALJIC Nos. 3.00, 3.01, and 17.00, the trial court effectively told the jury... .” Respondent purports in this paragraph to explain whythe clear directive of CALJIC No. 3.00 that the principals are equally guilty had no effect in this case because CALJIC Nos. 3.01 and 17.00 nullified the damage done by the “equally guilty” language. However, nothing in respondent’s argument explains why the jury would not follow the simpler, clearer, and more direct charge that principals are “equally guilty” rather than parsing two other jury instructions to arrive at the contrary conclusion that it must separately determine each defendant’s mental state in order to determine each defendant’s guilt. Respondent next contends that the misinstruction was of no consequence because the evidence does not suggest that appellants had different mentalstates. (RB 112-113.) Respondent supports his argument largely with references to statements made by Flores to the prosecutor at a time when Flores and appellant were representing themselves. (RB 112-113.) These statements were made by appellant years after the crimes were committed. While they may serve as circumstantial evidence of appellant’s 4] a dl Ne mental state at the time of the commission of the various crimes, appellant was entitled to have the jury consider other evidence of his mental state at the times the crimes were committed in determining his culpability. Penal Code section 20 requires a joint operation of actus reus and mens rea at the time of the commission of the crime. (People v. Concha, supra, 47 Cal.4th at p. 660.) The instruction stating that principals in the commission of the crime are equally guilty manifestly directs the jury away from an evaluation of appellant’s individual mensrea. Furthermore, the evidence suggests that appellant and Amezcua did not share a common mensrea in the offenses discussed above, particularly in the case of the Reyes killing. The evidence showed that Amezcua shot Reyes in the Monte Carlo while appellant wasstill in the Toyota Cressida driven by Barber, and that after Reyes was shot appellant asked Amezcua why he had shot Reyes. This statement strongly suggests that far from sharing a common mensfea, appellant was completely surprised by Amezcua’s act. A correctly instructed jury thus in all likelihood would not have considered appellant “equally guilty” for the Reyes killing but would instead have examined the evidence of appellant’s lack of involvement in that offense and found appellant not guilty of the Reyes murder. In a similar vein, the mens rea of appellant and Amezcua appears to have been very different in the killing of George Flores, where it appeared that Amezcua got out of his car and approached Flores before fatally shooting him, and that appellant did not start shooting at the other people until after that. (See AOBp.20.) Consequently, a properly instructed jury may have found that there was a different mental state regarding these two killings and need not have convicted appellant of the same charge as Amezcua 42 D. The Failure to Instruct Correctly on the Elements of Aiding and Abetting Was Not Harmless Beyond a Reasonable Doubt Respondent’s final contention is that any alleged error was harmless. (RB 113-115.) Because respondent only addresses this issue as it relates to Amezcua, appellant here incorporates the discussion of prejudice from Appellant’s Opening Brief. (AOB 182-186.) However, it is worth reiterating here that misinstruction on elements of a crime is federal constitutional error. (Neder v. United States (1999) 527 U.S. 1, 144 L. Ed. 2d 35, 119 S. Ct. 1827; People v. Sengpadychith (2001) 26 Cal.4th 316, 324.) Prejudice from federal constitutional errors is measured against the harmless error test of Chapman v. California (1967) 386 U.S. 18, 24, which asks whether respondent can show beyond a reasonable doubt that the jury verdict would have been the same in the absence of the misinstruction. Particularly in view of the facts of the Reyes case discussed above, respondent cannot meet this burden, and reversal is required. 43 marr i ent VI THE PROSECUTOR COMMITTED MISCONDUCT AND VIOLATED APPELLANT’S RIGHT TO DUE PROCESS OF LAW WHENHE INVITED THE JURY TO DEPART FROM THEIR DUTY TO VIEW THE EVIDENCE OBJECTIVELY AND INSTEAD TO VIEW THE CASE THROUGH THE EYES OF THE VICTIMS Asexplained more fully in Appellant’s Opening Brief (AOB 137-139), the prosecutor committed misconduct during guilt phase argument by inviting the jury to “remember what it must have been like to be one of [appellants’] victims” and making other inflammatory appeals to the emotions and sympathyofthe jury to improperly influence their verdict. This constituted misconduct and a violation of appellant’s rights under the Fifth, Sixth, Eighth, and Fourteenth Amendments, in particular to his rights to a fair trial and due processof law. Respondent’s Brief addresses only some of the objectionable arguments made by prosecution, specifically the arguments found at pages 2861-2862 and 2895-2896 of Volume 13 of the Reporter’s Transcript. (RB 101-102.) However, as discussed in the Opening Brief (AOB at 137-139), these arguments were just two of the inflammatory arguments used by the prosecutor. The prosecutor repeatedly talked about shattering people’s lives, shattering people’s bones, and shooting them “to bits.” Among his other inflammatory arguments, the prosecutor described appellants as hard-core predators who enjoyed killing and luridly described Reyes choking on his own blood. Respondent agrees that it is improper to make emotionally charged arguments to the jury. (RB 105.) Likewise, respondent appears to concedethatit is improper to ask jurors, as this prosecutor did, to put themselves in the victim’s shoes at the time of death. (RB 106.) Nor does respondent argue that the remarks complained of were proper argument. Rather, respondent argues that the issue 44 was waived by appellants’ failure to object and request an admonition and that any error was harmless. (RB 105-106.) It is true that objections are usually required to preserve an issue for appeal. However, this rule is not uniformly applied, particularly when the issue concerns prosecutorial misconduct in argument. In this situation, this court has held that the failure to request an admonished doesnot forfeit the issue for appeal if “an admonition would not have cured the harm caused by the misconduct.” (People v. Hill (1998) 17 Cal.4" 800, 820; People v. Bradford (1997) 15 Cal.4® 1229, 1333.) Respondent argues that appellant did not show that an admonition would not have been effective. (RB 103.) However, it is long been recognized that when a jury has heard profoundly inflammatory argument, it cannot cleanse its collective memory. Asis frequently said under such circumstances “one ‘cannot unring a bell’; ‘after the thrust of the saberit is difficult to say forget the wound’; and finally, ‘if you throw a skunk into the jury box, you can't instruct the jury not to smell it.’” (United States v. Garza (5th Cir. 1979) 608 F.2d 659, 666, quoting prior case law.) Misconduct in argumentis particularly prejudicial when it comes from the mouth of the prosecutor. The Supreme Court has long recognized that jurors hold prosecutors in high esteem, and that improper suggestions and insinuations “are apt to carry much weight [when presented by the prosecution] against the accused ... (Berger v. United States (1935) 295 U.S. 78, 88.) Finally, as noted above (ante, at p. 16), prosecutorial misconduct in argument is particularly prejudicial in capital cases, where heightened due process requirements apply. (See Beck v. Alabama (1980) 447 U.S. 625, 638 and n. 13; see also McElroy v. United States Ex Rel. Guagliardo (1960) 361 U.S. 249, 255 (Harlan,J., diss.).) The prosecutor’s repeated misconduct violated the g@ Amendment prohibition on a sentence brought about in part by arbitrariness, 45 ap ale he al passion or prejudice and rendered the conviction and death sentence unreliable. (Johnson v. Mississippi (1988) 486 U.S. 578, 587.) The misconduct also prejudiced appellant in the penalty phase. As this court has previously observed, the ultimate decision of whether or not to impose death is indeed a “moral” and “normative” decision, and the verdict is thus primarily a “moral and. . . not [a] factual” determination.” (People v. Brown, supra, 33 Cal.4th 382, 400; People v. Rodriguez, supra, 42 Cal.3d 730, 779.) In the penalty phase, the jury’s determination does not depend on the amount of evidence of guilt. Therefore, whether or not there was “overwhelming evidence” supporting the guilt verdict, as respondent asserts (RB 105-106), does not indicate that there was no prejudice in the penalty phase, where the decision must focus on the background and character of the defendant in addition to the evidence supporting a finding of guilt. 46 vil THE TRIAL COURT ERRED WHEN IT ACQUIESCED TO THE DEMANDSOF APPELLANTS NOT TO ALLOW DEFENSE COUNSEL PRESENT ANY FORM OF DEFENSE IN THE PENALTY PHASE OR TO REQUEST PENALTY PHASE JURY INSTRUCTIONS. Asset forth in more detail in Appellants’ Opening Brief (AOB 187-195), the attorneys for both appellants informed the court prior to the guilt verdicts that the defendants did not wish to present any defense in the penalty phasein the event that guilty verdicts were returned. The attorneys, who had previously been prepared to present a case in mitigation, thereafter took a completely passiverole. Throughout the penalty phase they madeno further objections, did not cross- examine witnesses, and did not present arguments. The defense attorneys did request jury instructions, but the court refused those requested instructions because the defendants themselves objected. The trial court’s acquiescence in allowing defense counsel sit idle and present no defense deprived the defendants of the right to counsel, the right to a jury trial, the right to due process of law, and the right to a reliable determination of the facts in a capital trial, in violation of the Fifth, Sixth, Eighth, and Fourteenth Amendmentto the Constitution of the United States. The error also defeated the state’s owninterest in fair, accurate, and reliable capital judgments. A. The Flaws In Respondent’s Argument Respondentargues that no error occurred. However, these arguments are flawed for several reasons. Respondent argues that the defense attorneys “acceded”to the request of appellants. (RB 125.) This is not accurate. To “accede” implies giving approval 47 or consent,° and there is no evidence that the defense attorneys either approved or consented to their clients’ wishes. At the most, they informed the court of their clients’ demands. Counsel hadlittle choice but to do so, as it would have been extremely awkward for the defense attorneys to simply stop litigating and refrain from argument, cross-examination, or any other normal defense functions without explaining in advance what they were doing. The fact that counsel informed the court of their clients’ decisions cannot be considered “acceding”to this course of action. Indeed, the fact that the defense offered jury instructions belies the argument that they ‘“‘acceded”to this tactic. Respondent next contends that under People v. Sanders (1990) 51 Cal.3d 471, it was not error for the court to allow the defense attorneys to abandon efforts to present a defense. Appellant respectfully submits that to the extent that Sanders applies in these circumstances, this Court should reconsiderits holding in that case. The principal problem with Sandersis that it assigns all power over the control oflitigation to the defendant and gives virtually no authority to the attorney, a radical restriction of the role of attorneys. As explained in the opening brief, attorneys previously controlled all aspects of the litigation not involving fundamental rights that personally belonged to the defendant. (See AOB,at pp. 198-201.) Noneofthelitigation decisions in this case were matters that have traditionally fallen within the scope of matters in the control of the defendant. To the contrary, they were all decisions traditionally considered to be within the purview the attorney, who has always beenfree to act with or without the approval of the client. For example, the selection of appropriate jury instructions is not a personal fundamental right in which the defendant hasfinal say but has instead always been considered within the attorney’s purview. ° http://www.merriam-webster.com/dictionary/accede 48 Herethe trial court’s acquiescence to the defendant’s wishes effectively reversed the traditional roles of attorney and defendant, making counsel the cabin boy whenheusedto be the “captain of the ship” empowered to make “all but a few fundamental decisions for the defendant.” (People v. Welch (1999) 20 Cal.4th 701, 728-729; see also People v. Salter (2012) 210 Cal.App.4th 769, 774; see also People v. Jackson (2009) 45 Cal.4th 662, 688.) With counsel effectively stripped of the power to make objections, cross-examine witnesses, request instructions, call witnesses, or perform any other function, one has to wonder whetherit would have been error for counsel to absent themselvesforthe rest of the trial. Indeed, considering the fact that the motion to reduce the verdict and the notice of appeal are both automatic in capital cases, counsel might as well have been discharged. Furthermore, Sanders fails to recognize the role of opposing attorneys in the adversary system. In Sanders this Court found that the required reliability in a capital case is attained when the prosecution has metits burden of proof “pursuant to the rules of evidence . . . , the death verdict has been returned under properinstructions and procedures, andthetrier of penalty has duly considered the relevant mitigating evidence, if any, which the defendant has chosen to present.” (Quoting Sanders at p. 526, italics added by respondent, RB 124.) Takenliterally, the foregoing passage suggests that the prosecution, represented bya trained and experienced attorney, is opposed only by a defendant with no legal training. In fact, of course, the defense is represented by an attorney, andit is that attorney—notthe defendant himself—who normally choses the evidence to be presented. The foregoing Sanders quotation byits terms assumesthat the fact that one attorney follows laws of procedure and evidenceis sufficient for the adversary system to function, when in fact the Anglo-American system ofjustice requires the participation of an opposing counsel with equivalent resources and skills. 49 ae | L a 4 1K This case is the perfect example of the need for an advocate for the defense in the adversary system. Inherent in our death penalty schemeis a balancing of aggravating and mitigating factors. If there are facts in the defendant’s background that mitigate the severity of the crime, our capital scheme envisions the jury balancing those facts against the circumstances of the crime and any factors in aggravation. For example, if a defendant had been under an extreme mental disturbance at the time or was impaired as a result of mental disease or defect at the time of the crime (Pen. Code § 190.05, (h)(4) and (8)), but wasstill competent to standtrial, the state would have no interest in executing a person with such mental disabilities merely because he told his attorney not to present a defense. This would be true even ifthe prosecutor followed rules of evidence and properinstructions were given. In this case, there was a breakdownin the adversary system because the defense did not test the prosecution’s case through cross-examination, described as “the greatest legal engine ever invented for the discovery ofthe truth” (5 Wigmore, Evidence, Chadborne Rev. 1974, Section 1376). Nor did the defense attorneys present any argument to counter the argumentpresented by the prosecution. Furthermore, the defense attorneys had a case in mitigation that they wanted to present. They could have questioned the evidence presented by the prosecution. They also could have argued that some factors in aggravation did not apply. In short, the attorneys could have presented a defense, even if it had been limited to questioning the prosecution’s case. Ironically, in the penalty phase of a capital case, the proceeding in which the state has the greatest interest in obtaining an accurate result, this court’s holding in Sanders permits the attorney to have the least impact. Indeed,in this case, counsel had no impactat all. The inevitable result will be a result that is less reliable, and as a consequencethis court should revisit and disapprove Sanders. 50 Respondent’s contentions regarding the penalty phase instructionsare also incorrect. Appellant had contendedit was error to refuse requested instructionsat the penalty phase because selection of appropriate jury instructionsis a tactical decision within counsel’s control. (RB 126, citing AOB 224- 226.) Respondent disagrees, stating that “certain decisions regarding the exercise or waiver of basic trial rights are of such momentthat they cannot be made for the defendant by a surrogate.” (RB 126, quoting Florida v. Nixon (2004) 543 U.S. 175, 187.) Respondentnotes that Florida v. Nixon held counsel did not have the authority to consent to a guilty plea on behalf of a defendant. It is noteworthy that in this argument respondent impliedly agrees that some decisions are within the realm of the attorney. However, respondent never addresses the question of whether selecting, examining, and cross-examining witnesses, requesting jury instructions, and presenting arguments are within that realm or not. Furthermore, respondent’s argument effectively equates selection ofjury instructions with the decision of whetheror not to plead guilty. In fact, jury instructions and guilty pleas represent two extremesat the end of a spectrum. Jury instructions are perhaps the paradigm oftactical decisions that are under the control of the attorney. Even whenthe instruction involves constitutional issues, such as the right notto testify, the decision as to whether to ask for the instruction is under the control of the attorney. (People v. Towey (2001) 92 Cal.App.4th 880, 884.) In contrast, the decision as to whetheror not to enter a guilty plea is a right that requires a personal waiver by the defendant. (In re Horton (1991) 54 Cal.3d 82, 95; People v. Ernst (1994) 8 Cal.4th 441.) Indeed, the legal requirement that the defendant must waive that right is included in the California Constitution. (Cal. Const., art. I, § 16.) Respondenterrs in conflating matters requiring legal training and experience with fundamental personal rights within the purview of the defendant. 51 B. Appellants Should Not Be Estopped From Raising This Issue. Respondent implies that appellants should be estopped from raising this issue because they hadinstructed the attorneys to pursue this course ofaction. (RB p. 124.) Appellant disagrees. If the attorney does controlthetactics oflitigation and there is a dispute as to those tactics, it is error for the trial court to side with the client and overrule counsels’ objections, effectively granting control overthe litigation to theclient. To hold that the defendant is estopped from asserting the error creates two impermissible results: (1) such a holding would eviscerate the rule that the attorney controls thelitigation; and (2) such a holding would permanently immunize the error from ever being corrected. If the defense is estopped from raising this issue on appeal, then the attorney no longer has control overlitigation because the client would have unreviewable power to overrule any judgment the attorney may have exercised. Such a rule would not only remove control of the litigation from the attorney, but also underminethe authority of the trial court. Thetrial court judge is charged with the authority, power, and duty to control the proceedings “with a view to the expeditious and effective ascertainmentofthe truth regarding the matters involved.” (Pen. Code § 1044.) The court’s pursuit of the truth is not advanced when the defendant is given a veto poweroverthelitigation. As between the defendant, untrained in law with possible motives that are not consistent with obtaining a “just result,” and a trial court judge entrusted with the duty of ascertaining the truth and ensuring a properresult , appellant submits that the trial judge is properly assignedthe task of presiding over the course of thetrial Furthermore, any bar against the defense raising the issue on appeal would permanently prevent potentially egregious injustices and errors from ever being corrected. Accordingly, appellants should not be estopped from raising this issue 52 C. Conclusion Although a defendant maintains control over some decisions, when represented by counsel he relinquishes control over other most areas of the case not involving personal, fundamental rights. In this case, appellant’s attorney should have been allowed to make the decisions regarding the defense to be presented in the penalty phase. Thefailure to allow the attorneys to control these aspects of the case deprived appellant of the right to counsel, the right to a jury trial, the right to due process of law, and the right to a reliable determination of the facts in a capital trial, in violation of the Fifth, Sixth, Eighth, and Fourteenth Amendment to the Constitution of the United States. For all the foregoing reasons, reversal is required. 53 xX CALIFORNIA’S DEATH PENALTY STATUTE, AS INTERPRETED BY THIS COURT AND APPLIED AT APPELLANT’S TRIAL, VIOLATES THE UNITED STATES CONSTITUTION Appellant argued in the opening brief that for a number of reasons California’s death penalty statute, as interpreted by this Court and applied at appellant’s trial, violates the United States Constitution. (AOB 225-262.) Respondent argues that appellant’s constitutional challenges to California’s death penalty statute must be denied because, in respondent’s view, appellant has failed to provide persuasive reasons for departing from the precedents set forth in respondent’s brief. (RB 131-136.) Appellant replies to respondent’s contention as follows: In People v. Schmeck (2005) 37 Cal.4th 240 (abrogated on another ground in People v. McKinnon (2011) 52 Cal.4th 610, 637-643), a capital appellant presented a numberof often-raised constitutional attacks on the California capital sentencing schemethat had been rejected in prior cases. As this Court recognized, a major purpose in presenting such arguments is to preserve them for further review. (d., at p. 303.) This Court acknowledged that in dealing with these attacks in prior cases, it had given conflicting signals on the detail needed in order for an appellant to preserve these attacks for subsequent review. (/d.. at p. 303 fn. 22.) In order to avoid detailed briefing on such claims in future cases, the Court authorized capital appellants to preserve these claims by “do[ing] no morethan(i) identify[ing] the claim in the context of the facts, (ii) not[ing] that we previously have rejected the same or a similar claim in a prior decision, and (iii) ask[{ing] us to reconsider that decision.” (/d., at p. 304.) Accordingly, pursuant to Schmeck and in accordance with this Court’s own practice in decisions filed since then, appellant has identified the systemic and previously rejected claims relating to the California death penalty scheme that require reversal of his death sentence and requests the Court to reconsiderits 54 decisions rejecting them. Appellant contends that these arguments are squarely framed and sufficiently addressed in Appellant’s Opening Brief and therefore makesno furtherreply. 55 APPELLANT JOINS IN ALL CONTENTIONSRAISED BY HIS CO-APPELLANT THAT MAY ACCRUETO HIS BENEFIT Appellant JOSEPH CONRAD FLORESjoinsin all contentions raised by his co-appellant that may accrueto his benefit. (Rule 8.200, subdivision (a)(5), California Rules of Court [“Instead of filing a brief, or as a part of its brief, a party may join in or adopt by reference all or part of a brief in the same or a related appeal.”]; People v. Castillo (1991) 233 Cal.App.3d 36, 51; People v. Stone (1981) 117 Cal-App.3d 15, 19 fn. 5; People v. Smith (1970) 4 Cal.App.3d 41, 44.) CONCLUSION For the reasons set forth herein, it is respectfully submitted on behalf of defendant and appellant JOSEPH CONRAD FLORES that the judgment of conviction and sentence of death must be reversed. In addition, appellant submits that the cumulative impact of the numerous errors in this case requires reversal of the even if no single error does so independently. (Taylor v. Kentucky (1978) 436 U.S. 478, 487, and fn. 15; People v. Holt (1984) 37 Cal.3d 436, 459; Mak v. Blodgett (9Cir. 1992) 970 F.2d 614, 622.) In addition, a numberofguilt-phase errors also had a considerable impact on the penalty determination and the impact of these errors must also be assessed in evaluating the prejudice resulting from the penalty phaseerrors.! DATED: August 12, 2013 Respectfully submitted, DAVID H. GOODWIN,SBN 91476 Attorney for Defendant and Appellant James Flores ’ An error may be harmlessat the guilt phase but prejudicial at the penalty phase. (In re Marquez (1992) 1 Cal.4th 584, 605, 609.) 56 CERTIFICATE OF WORD COUNT Rule 8.630, subdivision (b)(1), California Rules of Court, states that an appellant’s reply brief in an appeal taken from a judgment of death produced on a computer must not exceed 47,600 words. The tables, the certificate of word count required by the rule, and any attachment permitted under Rule 8.204, subdivision (d), are excluded from the word countlimit. Pursuant to Rule 8.630, subdivision (b), and in reliance upon Microsoft Office Word 2007 software, which was used to prepare this document,I certify that the word count of this brief is 16,638 words. Respectfully submitted, DAVID H. GOODWIN 57 a ee DECLARATION OF SERVICE BY MAIL STATE OF CALIFORNIA, COUNTY OF LOS ANGELES I, David H. Goodwin, declare that I am over the age of eighteen years and not a party to the within entitled action; my business address is Angeles,Ca 90093-0579. On August 12, 2013, I served a copy of the attached__Appellant” Opening Brief on the interested parties in said action, by placing a true copy thereof enclosed in a sealed envelope with postage thereon fully prepaid, in the United States mail at Los Angeles California addressed as follows: Viet Nguyen, DAG Office of the Attorney General 300 S. Spring Street Los Angeles, CA 90013 Counsel for respondent Los Angeles Superior Court 210 W. Temple Street Rm M-3 Los Angeles, CA 90012 Clerk, Capital Appeals Los Angeles Superior Court 210 W. Temple Street Rm M-3 Los Angeles, CA 90012 Wesley VanWinkle PO Box 5216 Berkeley, CA 94705 Assisting attorney For: Hon. Robert J. Perry (Dept 104) Office of the District Attorney 210 W. Temple St Los Angeles, CA 90012 Janyce Blair 321 Richmond Street El Segundo, Ca 90245 Counsel for appellant Amezcua Joseph Flores San Quentin Prison P.O. Box V-76699 San Quentin, CA 94974 Mark Goldrosen 255 Kansas St., Ste 340 San Francisco, CA 94105 Assisting attorney for Counsel for appellant Amezcua Executed on August 12, 2013, at Los Angeles, California I declare under penalty of perjury that the foregoing is true and correct. David H. Goodwin 58 P.O. Box 93579, Los