PEOPLE v. AMEZCUA

Appellant, Oswaldo Amezcua, Opening Brief

Cal.January 26, 2012

SUPREME COURT COPY IN THE SUPREME COURTOF THE STATE OF CALIFORNIA THE PEOPLE OF THE STATE OF CALIFORNIA, Plaintiff and Respondent, Vv. OSWALDO AMEZCUA AND JOSEPH CONRAD FLORES, Defendants and Appellants. AUTOMATIC APPEAL FROM A JUDGMENT OF DEAFé SUPREME CT. NO. S133660 LASC KA050813 SUPREME COURT FILED JAN 26 2012 Frederick K: ORIEN Glerk FROM THE SUPERIOR COURT OF LOS ANGELES COUNTY —-P@Puty THE HONORABLE ROBERTJ. PERRY, JUDGE PRESIDING APPELLANT’S OPENING BRIEF on behalfof OSWALDO AMEZCUA JANYCE KEIKO IMATABLAIR State Bar No. 103600 Suite 3 Ocean Plaza 302 West Grand Avenue ~ El Segundo, California 90245 _ Telephone: (310) 606-9262 Attorney by AppointmentoftHe Supreme Court of California for Defendant and Appellant OSWALDO AMEZCUA [ c a ]DEATH PENALTY IN THE SUPREME COURT OF THE STATE OF CALIFORNIA THE PEOPLE OF THE STATE OF CALIFORNIA, SUPREMECT. NO. §133660 Plaintiff and Respondent, V. LASC KA050813 OSWALDO AMEZCUA AND JOSEPH CONRAD FLORES, Defendants and Appellants. AUTOMATIC APPEAL FROM A JUDGMENT OF DEATH FROM THE SUPERIOR COURT OF LOS ANGELES COUNTY THE HONORABLE ROBERTJ. PERRY, JUDGE PRESIDING APPELLANT’S OPENING BRIEF on behalfof OSWALDO AMEZCUA JANYCE KEIKO IMATA BLAIR State Bar No. 103600 Suite 3 Ocean Plaza 302 West Grand Avenue El Segundo, California 90245 Telephone: (310) 606-9262 Attorney by Appointmentofthe Supreme Court of California for Defendant and Appellant OSWALDO AMEZCUA il Table of Contents Table of Authorities | xiii STATEMENT OF THE CASE | 1 Statement of Appealability | 1 Introduction | 2 Procedural History | 4 Statement of Facts | 18 The Prosecution’s Guilt Phase Evidence | 18 “ m a m m o a w > The Diaz and Gonzales Crimes | 18 The Madrigal and Gutierrez Crimes | 22 The Paul Ponce Crimes | 24 The Ledford Drive Crimes | 26 The Luis Reyes Crimes | 32 The Santa Monica Pier Crimes | 37 Custodial Possession of Shank | 42 The Steve Mattson Crimes | 43 The Redacted Versions of the Prosecutor’s Recorded Interviews with Flores and Appellant Heard by the Jury | 44 Flores’ Defense | 59 The Prosecution’s Penalty Phase Evidence | 59 ili Table of Contents ARGUMENT| 64 Jury Selection Issues | 64 I. Il. THE TRIAL COURT ERRED IN REJECTING THE DEFENSE REQUEST THAT THE QUESTIONNAIRE ASK PROSPECTIVE JURORS WHETHER THEY WOULD ALWAYS VOTE FOR DEATH IF APPELLANT WAS CONVICTED OF MULTIPLE MURDERS. THE RULING DEPRIVED APPELLANT OF HIS CONSTITUTIONAL RIGHTS TO A FAIR TRIAL AND IMPARTIAL JURY AS GUARANTEED BY THE SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION.| 64 A. Background | 64 B. The Relevant Law and Application to this Case | 67 C. Reversal of the Penalty Judgment Is the Appropriate Remedy because the Trial Court’s Restriction of Voir Dire Creates Doubt That Appellant Was Sentenced to Death by a Jury Empanelled in Compliance with the Law | 72 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 | 74 A. Jury Selection Procedures | 74 B Prospective Juror No. 74 | 77 C. The Relevant Law and Application to This Case | 81 D Reversal of the Penalty Judgment Is the Appropriate Remedy because Execution of the Death Sentence Would Deprive Appellant of His Life without Due Process of Law | 88 iV Table of Contents Guilt Phase Issues | 91 II. THE TRIAL COURT COMMITTED FEDERAL CONSTITUTIONAL ERROR WHEN IT ERRONEOUSLY INSTRUCTED THE JURY THAT A PERSON WHO AIDS AND ABETS IS “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.” | 91 A. Introduction | 91 B. The Instructions regarding the Liability of Principals Given to Appellant’s Jury | 95 C. The Equally Guilty Language of the Aider and Abettor Instructions Misdirected the Jury in Determining Appellant’s Culpability for Murder. An Aider and Abettor’s Guilt in a Murder Prosecution Is Based on the Combined Acts of the Principals, But on the Mental State of the Aider and Abettor. | 97 D. The Equally Guilty Language of the Aider and Abettor Instructions Misdirected the Jury in Determining the Degree of Appellant’s Murder Liability. An Aider and Abettor’s Murder Liability Is Determined by Examining the Defendant’s Personal Mens Rea and by Applying Penal Code Section 189 | 104 E. A Trial Court Is Obligated to Correctly Instruct the Jury on the Applicable Law | 111 F, The Failure to Instruct Correctly on the Elements of Aiding and Abetting Was Not Harmless Beyond a Reasonable Doubt | 112 IV. Table of Contents 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 | 115 A. Introduction | 115 B. The Record Fails to Establish That Dr. Carrillo Was Unavailable or That Appellant Had a Prior Opportunity to Cross-Examine Him | 119 C. Bullcoming and Melendez-Diaz Establish That the Results of the Forensic Autopsy Performed by Dr. Carrillo Are Testimonial Evidence and Together with Crawford and Davis Present a Clear Iteration That the Confrontation Clause Does Not Permit the Testimonial Statement of One Witness to Enter into Evidence through the In-Court Testimony of a Second | 121 D. Permitting the Testimonial Statement of One Witness to Enter into Evidence through the In-Court Testimony of a Second Thwarts All Four Elements of Confrontation Identified in Maryland v. Craig | 135 E. The Erroneous Admission of Dr. Carrillo’s Testimonial Statements through the In-Court Testimony of Dr. Scheinin Was Not Harmless beyond a Reasonable Doubt | 139 PF. Appellant’s Claim of Error Was Not Procedurally Defaulted because Counsel Rendered Ineffective Assistance in Failing to Object to the Confrontation Clause Violation | 140 vl VI. Table of Contents THE TRIAL COURT ERRED IN ADMITTING THE JAILHOUSE INTERVIEW OF APPELLANTS; EVIDENCE CODE SECTION 1153, PENAL CODE SECTION 1192.4, AND PUBLIC POLICY RENDER STATEMENTS REGARDING CRIMINAL CONDUCT MADE IN THE COURSE OF PLEA NEGOTIATIONS INADMISSIBLE | 143 A. Introduction | 143 B. Procedural Background | 144 C. Appellants’ Jailhouse Statements to the District Attorney and His Investigator, When Viewed Contextually, Establish That They Were Made during Appellants’ Efforts at Plea Negotiations | 147 D. Admissions of Criminal Conduct Made in the Course of Plea Negotiations Are Inadmissible | 152 E. Appellants’ Admissions of Criminal Conduct Were Made in the Course of Negotiations with Levine Regarding Restitution and Should Have Been Excluded under the Zanner Rule; The Failure to Do So Created Prejudicial Error | 156 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 BASE ITS 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| 159 A. Background | 159 B. A Trial Court’s Decision Regarding Heightened Courtroom Security Must Be Based on a Thoughtful, Case-Specific Consideration of the Need for Heightened Security and the Potential Prejudice to the Defendant | 163 vu VIL. D. THE PROSECUTOR COMMITTED MISCONDUCT AND VIOLATED APPELLANT’S RIGHT TO DUE PROCESS OF LAW WHEN HE INVITED THE JURY TO DEPART FROM THEIR DUTY TO VIEW THE EVIDENCE OBJECTIVELY AND INSTEAD TO VIEW THE CASE Table of Contents The Trial Court Abused Its Discretion When It Failed to Engage in a Fact-Specific Analysis of the Need for Heightened Courtroom Security | 171 Appellant Was Prejudiced by the Unconstitutional Security Measures Imposed at His Trial | 174 THROUGH THE EYES OF THE VICTIMS | 178 A. The Prosecutor’s Invitation to View the Case through the Eyes of the Victims Was an Improper Appeal to Use Sympathy for the Victim in Deciding the Case | 178 It Has Long Been Settled That Appeals to the Sympathy or Passions or Fears of the Jury Are Inappropriate at the Guilt Phase of a Trial | 179 The Improper Argument Denied Appellant a Fair Trial and Due Process of Law; Trial Counsel Failed to Provide Effective Legal Assistance When Counsel Failed to Timely Object to the Argument | 182 Trial Counsel Failed to Provide Effective Legal Assistance Guaranteed by the Sixth Amendment to the Federal Constitution When Counsel Failed to Timely Object to the Argument | 183 The Improper Argument Denied Appellant a Fair Trial and Due Process of Law | 185 Viil Table of Contents Penalty Phase Issues | 188 VIII. THE FAILURE TO PRESENT A PENALTY PHASE DEFENSE, APPELLANT’S EXPRESS REQUESTS AND THE TRIAL COURT’S CONSENT NOTWITHSTANDING, VIOLATED APPELLANT’S RIGHT TO A RELIABLE DETERMINATION OF THE JUDGMENT OF DEATH | IX. 188 A. Appellant’s Request That Counsel Present No Mitigating Evidence, Nor Cross-Examine Witnesses, Nor Present Argument during the Penalty Phase | 188 Appellants’ Related Request That the Court Not Give Defense-Proffered Penalty Phase Instructions | 193 The Relevant Law and Application to This Case | 195 THE TRIAL COURT ERRED IN INSTRUCTING THE JURY THAT DEATH IS A GREATER PUNISHMENT THAN LIFE IMPRISONMENT WITHOUT POSSIBILITY OF PAROLE AND IN SO DOING VIOLATED THE EIGHTH AMENDMENT’S GUARANTEE OF A CAPITAL JURY SUITABLY INSTRUCTED TO AVOID AN ARBITRARY AND CAPRICIOUS DEATH VERDICT | 206 A. B. Background | 206 The Notion That a Competent Mind May Rationally Conclude That Death Is the Less Severe Option Is Grounded in Concepts of Human Dignity, Which the United States Supreme Court Has Declared to Be the Core Concept underlying the Eighth Amendment | 208 The Law in California and the Uncertainties Attending It | 219 Appellant Was Prejudiced by the Instruction | 223 ix Table of Contents CALIFORNIA’S DEATH PENALTY STATUTE, AS INTERPRETED BY THIS COURT AND APPLIED AT APPELLANT’S TRIAL, VIOLATES THE UNITED STATES CONSTITUTION | 225 A. Appellant’s Death Penalty Is Invalid because Penal Code Section 190.2 Is Impermissibly Broad | 227 B. Appellant’s Death Penalty Is Invalid because Penal Code Section 190.3, subd. (a), As Applied, Allows Arbitrary and Capricious Imposition of Death in Violation of the Fifth, Sixth, Eighth, and Fourteenth Amendments to the U. S. Constitution | 229 C. California’s Death Penalty Statute Contains No Safeguards to Avoid Arbitrary and Capricious Sentencing and Deprives Defendants of the Right to a Jury Determination of Each Factual Prerequisite to a Sentence of Death; It Therefore Violates the Sixth, Eighth, and Fourteenth Amendments to the United States Constitution | 231 1. Appellant’s Death Verdict Was Not Premised on Findings beyond a Reasonable Doubt by a Unanimous Jury That One or More Aggravating Factors Existed and That These Factors Outweighed Mitigating Factors; His Constitutional Right to Jury Determination Beyond a Reasonable Doubt of All Facts Essential to the Imposition of a Death Penalty Was Thereby Violated | 232 2. In the Wake of Apprendi, Ring, Blakely, and Cunningham, Any Jury Finding Necessary to the Imposition of Death Must Be Found True Beyond a Reasonable Doubt | 236 3. Whether Aggravating Factors Outweigh Mitigating Factors Is a Factual Question That Must Be Resolved beyond a Reasonable Doubt | 242 (a) (b) (c) (d) (f) Table of Contents The Due Process and the Cruel and Unusual Punishment Clauses of the State and Federal Constitution Require That the Jury in a Capital Case Be Instructed That They May Impose a Sentence of Death Only If They Are Persuaded Beyond a Reasonable Doubt That the Aggravating Factors Exist and Outweigh the Mitigating Factors and That Death Is the Appropriate Penalty | 244 Factual Determinations | 244 Imposition of Life or Death | 245 California Law Violates the Sixth, Eighth and Fourteenth Amendments to the United States Constitution by Failing to Require That the Jury Base Any Death Sentence on Written Findings Regarding Aggravating Factors | 247 California’s Death Penalty Statute as Interpreted by the California Supreme Court Forbids Inter-case Proportionality Review, Thereby Guaranteeing Arbitrary, Discriminatory, or Disproportionate Impositions of the Death Penalty | 250 The Prosecution May Not Rely in the Penalty Phase on Unadjudicated Criminal Activity; Further, Even If It Were Constitutionally Permissible for the Prosecutor to Do So, Such Alleged Criminal Activity Could Not Constitutionally Serve as a Factor in Aggravation Unless Found to Be True beyond a Reasonable Doubt by a UnanimousJury | 252 The Use of Restrictive Adjectives in the List of Potential Mitigating Factors Impermissibly Acted as Barriers to Consideration of Mitigation by Appellant’s Jury | 253 Xi Table of Contents (g) The Failure to Instruct That Statutory Mitigating Factors Were Relevant Solely as Potential Mitigators Precluded a Fair, Reliable, and Evenhanded Administration of the Capital Sanction | 253 D. The California Sentencing Scheme Violates the Equal Protection Clause of the Federal Constitution by Denying Procedural Safeguards to Capital Defendants That Are Afforded to Non-Capital Defendants | 257 E. California’s Use of the Death Penalty as a Regular Form of Punishment Falls Short of International Norms of Humanity and Decency and Violates the Eighth and Fourteenth Amendments; Imposition ofthe Death Penalty Now Violates the Eighth and Fourteenth Amendments to the U.S. Constitution | 260 Cumulative Error | 263 XI. THE NUMEROUS ERRORS THAT OCCURRED DURING THE GUILT AND PENALTY PHASES OF HIS TRIAL, WHEN CONSIDERED CUMULATIVELY, DEPRIVED APPELLANTOF A FAIR TRIAL | 263 Joinder | 265 XII. APPELLANT JOINS IN ALL CONTENTIONS RAISED BY His COAPPELLANT THAT MAY ACCRUE TO HIS BENEFIT | 265 CONCLUSION | 266 CERTIFICATE OF WORD COUNT | 267 Xli Table of Authorities Page(s) FEDERAL CASES Adamsv. Texas (1980) MAB US. 38 cicccccccccccccscsesssesesesessessuesesscsesssscsesessesseseseseseusssesesaeeesseaeausaeseseesseaescseeeseseneneees 82, 83 Addington v. Texas(1979) AA] US. 418 ooo ccccccenececcesneeecesneeensneeecssecensesessasessenseeecaseeeeesseassenaaaeesenaaaeesnaes 243, 245, 247 Apprendi v. New Jersey (2000) 530 U.S. 466occceecseeeteeeeens 233, 234, 235, 236, 237, 238, 239, 240, 241, 242, 252 Atkins v. Virginia (2002) 536 U.S. B04 occcccccecceccscsssessesssesseseseseneesesecsesescecsacseasaeensceesecsesetatseasesaenecaeeeeeterts 213, 261, 262 Blakely v. Washington (2004) 542 US. 296 oo ecccccccecesecssceseesecsseeseeateneesseeecneeeeneeeens 233, 234, 235, 236, 238, 239, 242, 252 Brown v. Plata (2011) 536U.S.131 S.Ct. 1910... 118, 122, 132, 133, 134, 135, 138, 213, 214, 215, 216 Bullcoming v. New Mexico (2011) —US.131 S.Ct. 2705oes117, 118, 121, 122, 132, 133, 134, 135, 138 Bullington v. Missouri (1981) A51 U.S. 430, 441 occccccccccccsecsseccsseeesceesesecsaecessesssesenneesaeessesessetecaeesestereeeaes 243, 247 Bush v. Gore (2000) S31 U.S. 98 ccccccccsccscecesscsssessescsesscscscsesacseseseesessesesesevecsesesssesaeseseaeeaeaseaesenesatseetetesatanensents 259 California v. Brown (1987) AT9 U.S. 538 cocceccccccsscccsssessesesesesesensececsesssacseseseesseeeseeseesatsceecssssaeseaseasecscecssetatenseaesenenseseas 247 Campbell v. Blodgett (9th Cir. 1993) 997 F.2d S12 ececccccccsssssescsssscseseeecseceseesestacsesesneuceceanscatecsecassecaescuenecserseaeseessatcaeieessaeasaceanes 256 Chapmanv. California (1967) 386 U.S. 18 ciccccccccsecssccscsecseeeeeseeeeeseeseeesseeseeeeesseeetseees 89, 90, 94, 114, 119, 139, 140, 142 xii Table of Authorities Coy v. Iowa (1988) ABT U.S. L012 iccccccccccccccescsecnecceseeeeecsesceececseeaceeesesesscnesesesuseecsesesacsaneessaeereseseneesenseesereneaey 138 Crawford v. Washington (2004) 541 UNS. 36 weeeeeeeteeeee 117, 120, 121, 122, 123, 124, 125, 128, 129, 134, 135, 137, 141 Cunningham v. California (2007) S49 U.S. 270 vinccccccccccccscccesecseteesseeccenseeeaceceneesesseeeesseeaseesseenseeeeeeseeeenneeees 233, 235, 238, 239, 240 Darden v. Wainwright (1986) ATT U.S. 168 oocceccccccccccccescscscsesscscsesesscscseneesceceeeseceesessesceensnscsecsseesaesessessiasssavesaesenesseesgenesaees 183 Davis v. Alaska (1974) ALS U.S. 308 cooccccccccccsssssssssccessccesesesesescseseseseecaesereeeeseneecscaeseresscsnsneessseeeseneceneeseeseneeeeeeaeneney 137 Davis v. Georgia (1976) 429 US. 122ieccecceseeteeetereeeees 90, 117, 121, 122, 124, 125, 126, 127, 128, 129, 134, 135 Davis v. Washington (2006) 547 ULS. 813 ci ccceceeceereetertecereeteeneceensneeneeeeen 117, 122, 123, 124, 125, 127, 129, 132, 137 Deck v. Missouri (2005) 544 U.S. 622 ocecccccccccscsssssessssesecseeseceeeeeseseneneneessesenenecscscseseeeereassesessenenecenseesseensnenenenty 164, 177 Delaware v. Van Arsdall (1986) 475 U.S. 673, O81 cocccccccccccccsscsesscsesecsceeesensseeeeeeseceesaceeseesecarerseaceeesesecsessecsesseseseessneseeeaenees 139 Dowdell v. United States (1911) 221 U.S. 325 coccccccsccccsssscsssssssssesessssesesesesesesesenssasacecseeecsereassesesesscsssesseseesesesenaneseeeeenaseeesasteney 136 Duckett v. Godinez (9th Cir. 1994) 67 F.3d 734 woeccccccccccescsscscsccsesscscsessecscseecseeccseesecseeseeseeeeaceeseneaaneseecsasessesesssesssensesssessensearenens 176 Duncan v. Louisiana (1968) 391 US. 145 ccccecccscecscsssscscsscscsesesseeescseeesecsesessessesseneesessssassesssarscsesesaasseesseseeesseneaeenentts 81 Dyas v. Poole (9th Cir. 2002) 309 F.3d 586 occccccscccessccesssseecesseeccssseecesseenaecereeessaeecsseseeceessseeasessseeeserseaeeeees 175, 176, 177 XIV Table of Authorities Eddings v. Oklahoma (1982) ASS US. 104 oeececccccccssssseseseesesesesenesecaeseseeseseescsacsevsesssesssessssesssssaesssesasaesevasacstecsesecseeeeecsteaens 256 Elledge v. Dugger (11th Cir. 1987) 823 F.2d 1439 ooceeeeesessseseseseseereeesesesenseaeeeeceecacaestaceesacacaeseesseseaeaeseneuceseeasaetecsesnseseaees 177 Estelle v. Williams (1976) ADS US. SOD ce eeccccccsesesesseseseseeseseecenecsceseseesecesessssecssseseeseeseesseseseescsseseaeeaeanecseseesasees 174, 175 Evans v. Bennett (1979) AAO US. 1301 cccccccccccccecsecsessececcsscsecsseeesseeseesscsessessssesssecsecsesseeeesssenenssees 209, 210, 214 Faretta v. California (1975) A22 US. 806 ec ecccccccccccescsseseneccessesesenecseeseccsessecescsessesseseseesecssessssnecsessssesesaeseseneeseesecseseenees 5,13 Fetterly v. Paskett (9th Cir. 1993) 997 F.2d 1295 oie ccccccssesseseesessseeseseesesecsecssessecssesesscsseecsecsecssssesssesatsassesassessessssesecsesesaeeaeees 255 Ford v. Wainwright (1986) ATT U.S. 399 oociccccccccsessssescsssscsecsesesecsecsesecsecsesaecsesscsucsesscseesessessesssssassasaseassesessessceecaseecsseesees 262 Furman v. Georgia (1972) AO8 U.S. 238 oececccccccssssessesesssececsesesesecscsessesesssecaesessesesssasseeseseseeacsesesasesssessesesesesseseeaseeaseass 251 Gardner v. Florida (1977) M30 US. 349icccccesescesesesseseescseeessessesseseseeseeesessessesesecseecessesaesesesaseeesenecaecsesesesaeeaeeeeaeeasees 245 Gilmore v. Utah (1976) A299 U.S. L012 occccccccccccscsccsecsceecsecsecsecsecseccssenscseecsssscsesessesacseacsecsesstesesseseesess 208, 209, 214 Godfrey v. Georgia (1980) AAG US. 420 occceeceseenecsesceececeesecceecscsecaesesacsecaccesaeseecacsessesesaceeseeecacseaeseeseatiseesateeneeateeeens 231 Gonzales v. Oregon (2006) S46 U.S. 243 oc cceceesesessesesseseecescnsesscsececuceeseseesscsesueneosseseeseusssssueaueacsesssacanersuseesasiteceeeesieeteses 211 Gray v. Mississippi (1987) AB 1 US. 648 woe ccccccesesssessssesesesesesnenssesesescesesesnecseseseescessaesesessucaeseseseseseseaneneeceeeeenses 89, 90 XV Table of Authorities Gregg v. Georgia (1976) A228 U.S. 153 veeccceccccesscsssessscsceseenesesssesesesesesecesececeseseneaesenesesessaeacareessseseensacsesensesssesenesessaesees 247 Harmelin v. Michigan (1991) S01 US ., 957 cocccccccccscssccsesesssesesscecsesceceensesesesesecsecacsasscsesececsesassssesesscessesesaeeesseesenaseesenengens 249 Hicks v. Oklahoma (1980) AAT U.S. 343 viccccccccccccesccccsscsesseseesesescsecsessseecsecsecsensesseescaeeeceeseeeeseeessessssessessenenssseseesseenees 255 Hilton v. Guyot (1895) 159 U.S. 113 cicccccccccccscseescsesesseseneseececsesceseecacsecsesessceceeraceecsessessscseseseseeeeassenseseeseseesienees 261 Holbrook v. Flynn (1986) ATS U.S. 560 oocccceccccccccccccscccsssceesseeeeseeseecsseseneececeaeecessaeeoneeeetenssessaeeees 163, 164, 168, 169, 174 Illinois v. Allen (1970) 397 U.S. B37 vieccccccceccccessscscsscscssscscesseseescscseseseceseeseseeeesecaeaesecseaesseaesenesseessessenesaseeeneeeees 164, 174 Inre Winship (1970) 397 U.S. 358 voccccccccccccccccecsssesssecescseseseeesesesacseeaeneesecseceeenseseerseeseesseesesseseeseeaeeneees 244, 245, 246 Jecker, Torre & Co. v. Montgomery (1855) 59 US. [18 How.] 110 occceeecececeenecceeeeensneeseetsesessseseecseseseanenansseneseeeeesesenennsesaeneenenenees 261 Johnson v. Mississippi (1988) 486 U.S. 578 voceccccccccccscssscssssecseseseceacsescseceesesesesesssseeeacesssseeesessseceatsneeasseneeeeneeesnenenentsees 204, 252 Kansas v. Marsh (2006) S48 U.S. 163 coccccccccccccsececccsseeeseeeeeseneeretecsacevecsesseusceessseeessaseseseeeesseensneeens 225, 250, 251 Lenhard v. Wolff(1979) 443 US. 1306 woo cccccccecccceceeeeteeteseeeeeaeenesseceeseseeseseseesesseesseseeeseseeesnseenenseesnatees 210, 211, 214 Lockett v. Ohio (1978) 438 U.S. 586 oocccccccccccscssscsesccccssseseseseseeeseseseseeeecssseserecssesesssnsescoesesesesenseeeenseseneeeeseeeeneegs 205, 253 Lockhart v. McCree (1986) 476 U.S. 162 vececccccccccccsccccscsscsscscsecsessecsccsesesececseeaesareeeeeenecseessseeseseseessesesesseenaeseseateeseeneenenseegey 67 XVI Table of Authorities Lopez v. Thurmer (2009) 573 F.3d 484ccseseseesessecsesseeeesensscenseecsnsnsaeecsesssnenerssssesesnsseseseasaesesesssesneseseseasecees 174 Madrid v. Gomez (N.D. Cal. 1995) 889 F.Supp 1146occcseeeceseseseseseensesesesesnsneseesesssesesesessassssssessescsneseseecasses 215, 216 Martin v. Waddell’s Lessee (1842) AL ULS. [16 Pet.) 367 occccceeteseseseeseseseecsensesesssssescsesesevesessesesesssessesseecseesetenscecesseseatass 261 Maryland v. Craig (1990) AQT US. 836 oececcccccecssescseseesesesessesesvsesesesssscsesecssessuesacsssesscaesecsessescseseeassecsncecavenss 118, 135, 137 Mattox v. United States (1895) L560 US. 237 oeceecccceccecceseseeseesseeseesesesnsescecesesesaesessesenecassesesaesessesssseeceesasacsasaeeecssstscensases 136, 138 Maynard v. Cartwright (1988) A86 U.S. 356 occceecseeeesesssesesssseesesesesacseseaeeeaeseeeseeeseaeeneeaeseaeaeaeeseeessseseseseceseseseseseseeeees 231 Melendez-Diaz v. Massachusetts (2009) 557 USS. » 129 S.Ct. 2527eee 117, 118, 121, 122, 123, 125, 126, 127, 128, 129, 130, 131, 132, 134, 135 Miller v. United States (1871) 78 U.S. [LL Wall] 268 occcecccccecseseseseeeeesesesesesesesenecseaeacssseseesesesesseseseataeseseseneneseves 261 Mills v. Maryland (1988) A486 U.S. 367 oocccccccccccccccsscsesscsscssecestsesseceecesscsecessecstessseseesecesecsesesesseesseseese es 204, 249, 253, 259 Miranda v. Arizona (1966) 384 U.S. 436 occ eccccceceseeessncesneeceneesessaeecseeensneecseesenesssessesetensecneseseresesssesesesesnenss 144, 145 Monge v. California (1998) S24 US. D2 iecccccceccccssceeessseesssaaeseecessacecseeeceesasessueseseececsaseccnseeeseneeseeseaeees 243, 247, 257 Morganv. Illinois (1992) 504 U.S. 719 occccccccccccceccssccsscssccseeescsecsseecssssessaeccsseescseessecseesseceesseeneseats 67, 68, 69, 70, 73, 83 Myers v. Yist (9th Cir. 1990) B97 FQ ALTec cecccsseseseescneeseseseseseseseserssesesesaencseaensaeasecuecaeaceceeseecanaeaeeaseeacaeseaseeaees 249, 259 XVil Table of Authorities Nederv. United States (1999) S27 U.S. cecccceccccesssscscscssssesesceseseseseceesesesseseaseeecesecaceeeesseeeesessaeeeseetsssesenssenesessesseneass 94, 112, 139 Ohio v. Roberts (1980) BAB U.S. 56 occccccccccscccssescsesesesesesesesesceesecesecesesenseeeaeseesesesesusnsrseessessseeearsessesseasseeeeeenss 123, 128 Penry v. Lynaugh (1989) A92 U.S. 302 cecccccccccccsesesesssecessesssesecceeseecsescseaeseecseseneeenseeeseeessessvarscessessseeeneasssseesseseeeseesaeaes 195 Pointer v. Texas (1965) 380 U.S. 400 eccccceccececcssecscsesescsesescsesceescseseseseeeeecseseneeeeeesesecssisisnssessssseresenereeeeeess 116, 138 Presnell v. Georgia (1978) A439 U.S. 14 coccceccccccccccscsscscsscsceeeseesesesecsecseseeaeseseeceesenecseseesessesseeersentesesssessessessesssesesenecsens 245 Pulley v. Harris (1984) AOS US. 37 coccccccccccsseccsscesseseseeseceseecseeenececeeeeeceeeecsaecseeeaeeeaecssseeeessessesssesseeneseraeees 225, 250, 251 Rhoden v. Rowland (9th Cir. 1999) 172 F.3d 633 vocccccccccsccsscssccsecssceeceseeeceeceeceeeceeeeeeeenerseeseeesssesessesesseseenesnesseesessseesaes 175, 176, 177 Ring v. Arizona (2002) 536 U.S. S84cece233, 234, 235, 236, 237, 239, 240, 241, 243, 244, 249, 252, 259 Rosales-Lopez v. United States (1981) A5] U.S. 182 ciccccceccscccscscescescsssecseecsesecsescesesecsecsesserseseecesecsetsessesenerseeceseessessessenseeseassesaeseeees 68 Santosky v. Kramer (1982) ASS US. 743 coccccccccsscsscceeesessecsecseeeeeececeeeeeseceaeersereeseeseeseneeenseeeesseaeeesssseeegs 243, 245, 246, 247 Skinner v. Oklahoma (1942) 316 U.S. 535 cccccccccccscssscecsesessscseseseseeeseeeseneeeceeeseseeseetaeseeracssessscscseneseneaseesesessnenensessenseeeesens 257 Speiser v. Randall (1958) 357 U.S. 513 ccccccsccccsssccssssesessssseesceseeeceecsesenseessseseesessacsssesseseeesceassseseaneneseseneneeenseeneeanerenasees 244 Stanford v. Kentucky (1989) AQ2 U.S. 361 cocceececcccscscsssssssscscsccesescseseseseseseceseneneeeeacecseeeestsnsesssesassessecssseseeneeseseneneqeassieneneney 260 XViil Table of Authorities Strickland v. Washington (1984) 466 U.S, 668 ooo ec cccccccccceceesccsscssesscessesssseessessssseaseessesesssecennesseseeeats 119, 140, 141, 183, 184 Stringer v. Black (1992) S03 U.S. 222 oiccccccccccsecsscseescseeseseseeescseseseeesesceceerecaeeceacsenecssesseesersereeevenseaseensenseseeerensenerass 256 Taylor v. Kentucky (1978) 436 U.S. 478 oocccccceccccecescseseeecseeeesesesesecscscscnesecacsececeececesesenensesseeeeesesessnseesseeeeaeenessesesecaseeeacns 164 Thompson v. Oklahoma (1988) ABT US. 815 ciccccccccccccscsecssessessesescseesssscsesesecseceeseseseeesenseseceaeeassenesaseaeaeaseeesacaeeceesaeeaceeeeerars 260 Townsend v. Sain (1963) 372 US. 293 oicccccccccsscsesssscessseeseesessscsesseseseesesecsessecsaesesscsessaecseeseessaessnssecseaceeeseeeaseeeeseaeeaes 248 Trop v. Dulles (1958) 356 U.S. 86 ccccccccccccccccssssscsscsesecscseseseesesenesesesecacseaceessecececasecessensaceesseecuceaeseaeenesaceneateevecsevetes 214 Tuilaepa v. California (1994) S12 US. 967 cieccccccccccscscsssesscsessssesevecsesesensseeescasseenecaesaeacscecesaeeeeceeeseeseenseetaeeeeteseeseaeaas 195, 230 United States v. Agurs (1976) AQT U.S. 97 coccccccccsscesesssesessesessssesesscsesesesecsecseseanscsesecasaceeeasscessecesesavaeseseaseaessseaesceassaneesentenes 186 United States v. Booker (2005) 543 U.S. 220 ooceccccccccecccsccsssecssecessccseeesecessesscessceseeseeeeeeeseeceacsesesseeeeesseecearecsaseaes 235, 238, 252 United States v. Chanthadra (10th Cir. 2000) 230 F.3d 1237 vocceccccccccesessescsceseseseeeesescseseaceesseaeseneesceesececsaeeacacaesecsensneasesssseeaesevessetteseeeeeees 90 United States v. Frederick (9th Cir. 1996) TB EB 1370 vccccccccccsscssscscssesesecsesesceccsesesesesessenesssesesaseeeseecsacneseasscesesenesseseseencaterenseasseearaes 263 United States v. Inadi (1986) ATS U.S. 387 coccccccccccsssscseesecseseesseeessessscecesesesecsecseseeseecaceeedeceseeseseeeeeeseasensseeseseaseaseesseeeeserees 137 Uttecht v. Brown (2007) S51 US. SSD cccccccsccccsssessssscscsesscecseecsesesseseseseesnenesseaeseaeaeseeesaeegeeeecaeeeseapesseateseteenane 83, 85, 89 XIX Table of Authorities Wainwright v. Witt (1985) 469 US. 412 occcccececeteceneeteeeeceneceeeeeneeeteseeneeeneseses 67, 74, 81, 82, 83, 84, 87, 88, 89, 90 Walker v. Engle (6th Cir. 1983) 703 F.2d 959 ooocccecccccccsssesscssesssesessescecscseesesesesseeeesseseesesessesessesessesssessessessesssesaseeeeneeseassesseens 263 Walton v. Arizona (1990) AQT U.S. 639 coccccccccccccssccsscssescsesesseseesesesesseseseseseeesaceeeetseeeescsseeeaceesseaeeseseseasstesssscseseesseseneneneees 234 Witherspoon v. Illinois (1968) BOL US. S10 eecccccsecsesecssescsecseseeseteeseecseeeeceeseseceeseeeeseenseesseaesenenscseseeeneeaes 74, 81, 82, 83, 89 Woodson v. North Carolina (1976) 428 U.S. 280 eccccccccccssessscssesesesseccseeceseseecescaeseaceeeaceseesseeseaeseseeaueseseseneesessseneessneenss 204, 246, 254 Zant v. Stephens (1983) M62 U.S. 862 oeccccccccccccssssseseessseseseseecseseceseseaeenscaeaseseseesseseseasseessassssssesessasenenessensesecesasneeneateey 254 CALIFORNIA CASES Bryan v. Superior Court (1972) 7 Cal.3d 575 .ecccccccsssccsesssesscsesscscscsseeseseacseceesescseneessseneseesesscsesssecessesesseasssieeneaseesseeeesseees 143, 155 In re Sturm (1974) L1 Cal.3d 258 ooo cccccccccccsseesecsseceseeeeeseesaeeeceseeseeeeasassesssecseeeesesseeesscnsessesseesnnsneesnenseeate 248 Keenan v. Superior Court (1982) 31 Cal.3d 424 oocecccccscssscssceseeeseesseeseseaceseeaeecseesseassecseacsesseecesseesecnsessseseeeperseessenageats 192 People v. Adcox (1988) AT Cal.3d 207 wo.cccccccscccscesccesscecsesseecescenecneceeceeesseeeseesnessssseaeecssesaecseseaseseeeseeeeesasensesseneeey 229 People v. Ainsworth (1988) A5 Cal.3d 984 oooceccccccscesccssssseeseceseceeeceeseeseteeseceeesesnssesesseceseecsssaenscnessesseseeenneaeens 169, 170 People v. Allen (1986) A2 Cal.3d 1222 oececcccccccsccsssscesscssccseeseeseescescsecseesesnesesecsecaressesessecaseaseseeesenesseseesesanens 237 KX Table of Authorities People v. Anderson (2001) 25 Cal.4th 543 oeccccceesccesceseeceseseecesseceecesesssesseeesscseessessaeessecesesecesessessecsscsessesesaeeses 240 People v. Arias (1996) 13 Cal.4th 92.ccecccecceseseseeesesesusssseseseeneseseaesenescseseseseessnsneeseseseseseseseseaesesneseseeneeseseseseees 254 People v. Ashmus (1991) 54 Cal.3d 932ie ceccccccccssssecssesesesessesesesesesesesesesessesesesssesesesevesssseesaesesesesersvssaesesnssesesesesesecseseees 90 People v Bacigalupo (1993) 6 Cal4th 857ccccscssssscscseseeeseenenssesenescescsesesesesssesesesesesseseassesesesesesaeeseseanensneesseeeeeseess 227 People v. Beagle (1972) 6 Cal.3d 44D oe ceccccccceecsesseseseescseecsesssecessesesessesesesacsesesesacsesesavacsasscaesasscsesseseseseeeasaseseasaeens 139 People v. Berryman (1993) 6 Cal4th 1048 ooeesecsseeesesesseeceeensneseseacscsescacseensnensseneseneasseacsesescseansnensssenseensaeseseaeers 185 People v. Bittaker (1989) AS Cal.3d 1046 one ecccccccccesssesssesesesecsesesesessescsssessesssssesesscsesssseseseacseeecscseseaesesesavseaeeesaees 230 People v. Black (2005) 35 Cal4th 1238 ooocccccccescssesescscsesesevecsesessssesesessessscsececsesessesesscsesesseseaessessesesesaess 238, 239 People v. Bland (2002) 28 Cal4th 313 occcccccccccscsesecsssesesesssscsescsesscsssescecsesecesseseesesesscseaeeecscseracseessesesesenecatarenees 106 People v. Bloom (1989) A8 Cal.3d 1194oecccessesenseeees 196, 197, 198, 199, 200, 201, 202, 203, 223, 224 People v. Boyd (1985) 38 Cal.3d 765 eee cccccsessescsssscsesecssscsvscsesssesavsssesessesessescsesesecsessscesevesaesesesacseseseseaeeesscaeeeeseaes 255 People v. Bradford (1997) TS Cab4th 1229occcceeceseesescseseececsnsesescseseseacsesesenssesaeecacaeseseseseeaeacseasacsesesesestseseeeaeeenenes 69 People v. Brasure (2008) AD Cal. 4th 1037 ooccecccccceccscsessessssseseseseseseseessesesenessesesessesesesessueessanscsesesesseenseseseseeeseceeseses 71 Xx] Table of Authorities People v. Breaux (1991) 1 Cal.4th 280 cccccccccccccccccsescsssensceeeeseeeceeeeseeeesenesnsceesesesessscsesessssssssseeessssesacaseeeneaseensnseentes 195 People v. Brown (1988) A6 Cal.3d 432 voecccccccccccccssessecseessecesceeaeceseeareeseecsecseeesessesesssessessecesecneesseensseeeenees 236, 237 People v. Burgener (1986) AL Cal.3d S05. .cccccccccccccsscsseceseseseeeeeceeeseesesrscsecseesesssesecsesescessesessseseaneseseeseseneeseeneeesisieneeess® 196 People v. Burnick (1975) 14 Cal.3d 306...cccccccccccscsceesesssscseeseseseeeeeeesseereesesenesecsaesseseseersssessssseaeecseassenecneeseteeaes 245 People v. Cain (1995) LO Cal.4th Docicccccccccccccccsccscscencesessseeecsescsesesereeeeneessensecesnensssseesseeesssssesssesesenssesenseeeenenenties 194 People v. Caldwell (1984) 36 Cal.3d 210... cccccccccsccscscssssesesececeesessesesesecacseceesenecassesacsseecsesesesassenseeesessceneneseeeseseeteges 105 People v. Cancino (1937) LO Cal.2d 223 oocccccecccccccccssscssssccssssecesseseesescsessececacecescneceeeeseacesaseescscsesseseaesecssseseseseeeensaseenenes 194 People v. Carpenter (1997) 15 Cal.4th 312 ooocccccccccccccssesscececsessceecsescseseaeeececncsensesssssnscsesecssseesessssessaesesenenesneneeeeeeereey 255 People v. Cash (2002) 28 Cal.4th 703 oo... ccccccseesceesseeseeeeseeeeseveceeceeeesesseseesessesrensesneees 68, 69, 70, 71, 72, 73, 183 People v. Castillo (1991) 233 Cal.App.3d 36 ....cccccececccecsesececsescrsseeseesessssesssescsseseseseensseseseseeseseessneasensneeseeeearenseseneeenety 265 People v. Ceja (1993) A Cal.4th 1139 occcccccccceeseesseseeeeeeseseeensesasessnsessscseseeseseeesesesesesesesnenenseeeeeserenassnereaeneas 110 People v. Cervantes (2001) 26 Cal.4th 860 ooccccccccccccscsesscsscseseessececseseeeeneceseeceeesssscssscssersssseesssseseseseseneneueneaseerenenesees 105 People v. Chun (2009) A5 Cal.4th 1172 cocccccccccccccscsesssssscsceeseecaceesenesesessesesscsessscessesseesssseecseseansesseneaenserenseenensensceeey 110 XX Table of Authorities People v. Clair (1992) 2 Cal4th 629occccccccccccsscscesessssssesecsscseesessesevensesecsenseseeaesaeeeeeeaeeacaesecaesacsceesecsevseseeeaserens 185 People v. Clark (2011) 52 Cal. 4th 856 ooocccccccccccccssssscsesesesscsscsessessesssecseeccaeseseaeecsecsesenesaeeeeseaecesseeseeeseeaseaeeesetesets 185 People v. Cole (2004) 33 Cal. 4th 1158 cocccccccssseseseesenessesseecsnssecsecacsesesesseseeecseseeerseseseseaeeteenseeseseeseneneeess 186 People v. Collins (1975) 68 Cal.2d 319ccc ccccccsesescsescesesesceseeseesesesseccasscaeeecaceccsneesesseseseeerseeseenecassesseerseassensseseessenes 158 People v. Concha (2009) AT Cal.4th 653 wo...94, 97, 98, 99, 100, 101, 103, 104, 105, 106, 107, 110, 113 People v. Conner (1983) 34 Cal. 3d 141 cececcccsecssscsseeseceeeeeesseeceeeeeeesesecseceseeesseeesanersaesaaeeansseeeensseeeseeeaeags 145 People v. Cook (2006) 39 Cal4th S66 o.ececccccccccccscssescscseseseesesesesecsesscsseesesecsqacacaecsesseseaeaeeesecaceenecaeeeeseseeneeasarensanass 183 People v. Cooper (1991) 53 Cal.3d D7 Licceccccccccccssssssssesesceecseceseseceesceeeecseeeeeeseaecscsesesesseetesesesseseseassesssaracsesssesecenes 193, 194 People v. Cox (1991) 53 Cal.3d 618 ...cccccccccscsssesessescscssssscescsscssecesesesesceeeaceseseeesessseseeseaeseaseeeseesessresseseaeseeseeeseaes 194 People v. Crittenden (1994) Q Cal.4th 8 ooiccccccccccccssescscscscssesesseeseseesesenecseseeceseaesesecececaeceesaeeeaeseseeseneeeeseeeseeenenaeeeseaeeneesesenes 84 People v. Crow (2006) 28 CalApp.4th 440 occcccceeceeeeeeeneneneneseesesisesessnsnesrersssaessseesseseeesesenseceneney 154, 155, 156 People v. Cruz (2008) 4A CalAth 636 oo... ccccccccssscssecssccesseceecseecesceaeeeseesseceneeecceseeeeacesseessestseecaceseeesessassessoreseresseeegs 255 People v. Cunningham (2001) 25 Cal4th 926 oo... csceceseeeccecceeteeeeseceeerseeeeteseeneeseeeeees 72, 233, 235, 236, 238, 239, 240, 242 XX1l Table of Authorities People v. Danielson (1992) 3 Cal.4th 69d occcccccccccccccecscssecseseescnenscseecsesesevenececseeenseenerecseeseseeesesassessseeeesesnseeeeeseeestees 195 People v. Davenport (1985) AL Cal.3d 247 ooccccccccccccccccescssssscescesececsesescaeseseceeeeeaeseeecevaeaesesssstsnsssesseeesseenenesseseeseseecaeeesnensaees 71 People v. Deere (1985) AL Cal.3d 353 ooo cccccccsccsecesneeeseceteeeneecseecnseseerssseseseessssecesessseesseeaees 196, 200, 201, 202, 203 People v. Deere (1991) 53 Cal.3d 705 occ cccccceccccsscceseccesceneeeeeeeeaeceneessecesaeersisersesssenesseeesseeseseenes 199, 200, 201, 202, 203 People v. Demetroulias (2006) 39 Cal.4th Lincee ieee cccccccssscccssseeseeeceneececeeessecesseneesssaeecseesessaaseessneessagesneeeeegnesenes 237, 249, 258 People v. Dennis (1998) 17 Cal4th 468 oooccccccccccecscccscscseseeeeeeneeeeerseneeesesseseessneteceesesesecesssessesseseessesseneneety 184, 186 People v. DeSantis (1992) 2 Cal4th 1198 vocesccccccsccscsesesenecseeeseeeecseneeseseevseseesasaesesssssnanseeseesessensseseneseserereses 194 People v. Dickey (2005) 35 Cal.4th 884 oooccccscscescscseseseesesenecseseeseesssesecssaessesseessenssseseseeesseneesssenenenesesecererees 238 People v. Dillon (1984) 34 Cal.3d 44 Lincceccccccccccscssseeseseseeseseeeeeesesecseseeseeevsseeeeseescsesessssecsesesssesseesesenerenseneereneegs 228 People v. Duncan (1991) 53 Cal.3d 955 vccccccccccccscsssssscsescsesesceseseseseeeseseseacseccesenenevessrecsesesesseassesseaceeeseneesseeeeeseneeeey 195, 220 People v. Duran (1976) 16 Cal.3d 282... ceccccccccccccesecteceeneceretieeeseetacecssaesssaeseeseaeensseeeseesneeees 164, 168, 170, 172, 174 People v. Dyer (1988) A5 Cal.3d 26 ..ccccccceccccsssscscscsesesccscsesssesesescnesenseseeeesscesessstscseseseeecsssesessseeseesenseseeneeeneneateey 112, 229 People v. Dykes (2009) AG Cal.4th 731 voeccccccccccccscsscscsesescsessssssseceescsescseeeeeescacseseessssscsassneseeecsesesesesaseseeeneneeeesesaeees 230 XXIV Table of Authorities People v. Earp (1999) 20 Cal.4th 826 .ccccccccccccescsceseeseseeesceecseseseneeseseecaeeseseseaeeeeeesseeseeessscessaessessssesesesesecseneaees 70 People v. Edelbacher (1989) AT Cal.3d 983 ooccccccccccccccscccsrecsssessesseecseceseecsseenseeesnececeseeesesseceeeseeecneeseseesseseeaeaeeatees 227, 253 People v. Ervin (2000) 22 Cal.4th 48.cccccccccsccscssccseseseescsecsessesecsesecsesceenscaeeeeseeeesesseseeseeessesseesssasseneaeeetanees 69, 70 People v. Ervine (2009) AT Cal4th 745 ooccccccccccccccscsesssscsesesnecseseseceseseuesceeneesesensscneacseseeseseeeeesessasisisseeasenseaeseseseeneess 230 People v. Fairbank (1997) 16 Cal.4th 1223 occccccccccssscsceeesseenecseeceeeeesseeseseaesaeeneesarsasesueseneaeeessssseeeeens 233, 236, 248 People v. Farnam (2002) 28 Cal4th 107ccccccccsccscssecseeseeeeseesesseceeseseceeseceseeescereneeeseseeessessseeseeseneseeseeeeseseees 187, 236 People v. Fauber (1992) 2 Cal.4th 792ccc ccccccccccccseccseeceeseesesseecsecenecseassaeeeeeasesecececeeesseceaeensesenaeeseeseressanssensaes 193, 248 People v. Feagley (1975) 14 Cal.3d 338 ...cccccccccccscscsessecsneeseeseceeesesceececacsesseseseeesescsenssesscseecscaecaesessescsasescssseceseasess 245 People v. Fields (1983) 35 Cal.3d 329.eccccccscssssesssscsecscsescessesesceeseeecseeecsecaeseseseeceesaraceeessseseeeeeeeteessasass 180, 181, 187 People v. Fierro (1991) L Cal4th73 occccccccescsseeseescecscsesescseseneaeeceseeserseneeseeeenseensesessseessnenscsesenseesesseasseneeseeesnesses 251 People v. Gallego (1990) 52 Cal.3d LIScccccccccccccscsseseeccsesesceseseseecaescseeececererecseesessessessssssssescsesesessseesseecsesseceesees 193 People v. Gilbert (1965) 63 Cal.2d 690... ccccccccccccsscsseccscecsesesesescsesecsecanecseasaeseeeescacaceceeescssaeeaeneeseessesesscaeaeeeneneseestes 105 People v. Gonzales (1990) 51 Cal.3d 1179 voocccccccccsesesscesessssescssesceseseceecessececseesteesseessecssesesseesaessassessseeseesessseesesaeeeeess 194 XXV Table of Authorities People v. Graham (1969) T1 Cal.2d 303icceccccccccencecccsseecesscneeeesscneeeseeseesesssessseececscsseneesscenesssasesseaeeesens 94,111,112 People v. Guzman (1988) A5 Cal.3d O15 vo ieccecccceccccscccscseescsesesecseeeecsceecseseceecsenseessessessecsecssneesssseescsensesrenseseeresieeeeents 85 People v. Hamilton (1989) AS Cal.3d 1142 iceccecccccccsescseseseesesesscseescsceeeeeceessescsecscscsesessssssisseeessssenenseceeeeeseeeseeeesnaees 253 People v. Hardy (1992) 2 Cal.4th 86occccccceccssscssscecssecesseeereseceseceeesesseaeeeeseessseaseseeecesseaesnerecseseaaesesstseeneges 112, 230 People v. Harrington (1871) AD Cal 165 voecceeccccccccscssescsessescscescscscseesesececseeeecseeeceeceeesessaeessecsesecsscssassenessesenenesaseeneneeeey 167, 168 People v. Harris (2005) 37 Cal.4th 310 oiecccccscceesseeeneceereecesasestseeesecsseesensasssaeeeensaeesies 217, 219, 220, 221, 251 People v. Hart (1999) 20 Cal.4th 546 ooccccccccccccccsescscscsecsesesseseeessseeeeseecsesesssesstscsecsesassssenseasaesenesseaesenerseeeasecgens 140 People v. Hawthorne (1992) A Cal4th 43 icccccecccccccccesssscsesesesesceeececeeseseeeneseceeseeseesseseesseessessseneenseeeesesessensnarenssey 236, 249 People v. Heard (2003) 31 Cal4th 946 voice ccccccscscscseecscsesseesseseseseeeeseeesseececsssseeeseseneneeesanesseseenecaeeeenenerenesenetaey 90 People v. Hernandez (2011) 51 Cal.4th 733 oo. ccccccecssceseceeeseeeeessecerseeeeees 163, 164, 165, 166, 167, 171, 174, 175, 177 People v. Herring (1993) 20 Cal.App.4th 1066.0... ccecesscsessseescesssneseeneseseesscneenenseacerensinsassntsneanessesssecsssseensnnenesnnesy 263 People v. Hill (1998) 17 Cal.4th 800 weecece ccccecccssessreeeeseeessneeeesnseeeecsessessseserseeeeseaeesseesssnarensasesaees 171, 185, 263 People v. Hillhouse (2002) QT Cal.4th 469 oocccccccccccsscsssescssscsesseseeeeenseeeeeseseessnesaescesscscseneneseesenenenerenensaeecseessssnenssenes 228 XXVI Table of Authorities People v. Howard (2010) 51 Cal4th 15.ccccccsecccsssssssecssssseesesscsessessssesssessecesnscsessecsesecsessenssecseeseseseescseeceseesseeeeasses 173 People v. Hoyos (2007) AY Cal.4th 872 oooccccccccccesecescseessesesesesseesesesesescesesessaeseaseaeseeesenesenseceaseesesesneesvseseeeataeatasees 183 People v. Jackson (1996) 13 Cal.4th 1164 occcccccssssssesessesenecseseeseseesesseceesenessessececsesseseceesesseenseseecseaeeneseeseaaes 193 People v. Kaurish (1990) 52 Cal.3d 648... ecececscesssesesesesesscseeesesesneeseeecsecessevecsesesesesseeesesaeesecseessasenenenees 84, 85, 88, 194 People v. Kaurish (1990) 53 Cal.3d 648 oo. cecccccsceseseseseseessesesesesseensnseeessscessscseaseecasaessseaseereaseeseeeeseeeeeseeaseesenseans 71, 84 People v. Kirkpatrick (1994) 7 CalAth 988oo. cccccccccccscsssseseesesesesescceeeseaeeeecsescsesacaesececaeeasecsenecsesesessedeeceeeeesesesesenssaeaeeeeanes 70 People v. Kraft (2000) 23 Cal4th 978 ooocccccccccccsssscessssssssseseeseseeeeseccesescenecseeseseseseseeseesseeaeeetecaeesesseecaeeeeaeeeaeeetaceees 254 People v. Lamphear (1984) 36 Cal.3d L638ec eecccccccsssesesenscsesnsseeseceseceseseseseseseeavensaceseseeseeseeessesneseseseeensesesesnesaeeenenterees 194 People v. Lang (1989) AO Cal.3d 991 occcccccccccscsesscssscsesesseesessseseesesecseeeessessecseeaeeeeeaeeaseaeeaes 197, 198, 199, 204, 205 People v. Laws (1993) 12 Cal.App.4th 786oeccceseessesecseeeeseneeeesnseecaesscneeeecsesesseseesseseseesesseseeesesseeraeeeeeesessees 108 People v. Ledesma (2006) 39 Cal.4th 641 ooo ccccccesssscscesssesscsseecsceaeseesescseeseeseeeseeeecseeeeeeaeseeeeeesaeseeereesesseneesens 183, 184 People v. Leonard (2007) AO Cal4th 1370 woo. ccccccccccscsecsssessseseesescseneeseseseeeccesescesseaesseenesacsesseeeeseceeneeesaes 181, 182, 185 People v. Livaditis (1992) 2 Cal4th 759oc cccccccsssscsesssseesscseecseesssensessescseseesessenscsesecsacsessesesacseeeeseeassesesaeeeeeseeasaeees 69, 71 XXVIL Table of Authorities People v. Lomax (2010) AD Cal4th 530 wocccccccccccssccscsssesesesscseseseesececececeseseeeesseeeessetecscsesesssseseaesesenenenassessseenseneneasentees 173 People v. Lopez (2008) AD CalAth 960 o.cccccccccccccccccsccssesescceseeecseseeesesereseneessssnsesnsnsssesseasssssseseseeeseneeeeseaeaseeesneenncateee® 184 People v. Magana (1993) 17 Cal. App. 4th 137 Loceececesecsecesesesecescssssecsssesescesesseneseesesenesnenesesneeneataeeneateanesssesesneess 155 People v. Malone (1988) AT Cal.3d Lececccccccssssseseessecesecesececscneeestsesessesceceasassessscseaseseseseseseseqeeasesenensasanessesneameasssscsesenees 140 People v. Mar (2002) QB Cal.4th L201 woicceccccccccceccscsecsesecsecsescecsecseecsesseescsseeeacsesecsessesesscsesessessenesssnenseeetes 172, 173 People v. Marks (2003) 31 Cal.4th 197 ccccccccccccccscccscsscscscsecesececeesesescsenecseseaeeesecececersstsnecesseeenensassesenesseanenenseeeees 168 People v. Marshall (1990) 50 Cal.3d 907 o.cceccecccccccsscscessscsscscessscsessccesesenecsessceesessesesersessessecsassssenenesseeeeseasseseeecieaees 252 People v. Martin (1986) AD Cal.3d 437 oicccccccccccccsccscscscsssscsescsesseecsesveesesesesceesecssnsnsesrscscsseessesessnanenevsnasesseeeneneassesaneesates 167 People v. Maury (2003) 30 Cal.4th 342 oiccccccccccccsssssssssseseeeeeesssesescreseacceeseeensestessesessssssssssessneenseseaeeeseseaesesenteeaees 141 People v. McCoy (2001) 25 Cal.4th 1111oe93, 97, 98, 99, 100, 101, 102, 103, 104, 105, 106, 107, 110 People v. McDaniel (2008) 159 Cal.App.4th 736.0... ccccecscseesesesrsssssseesssssesnsseescenenesesenesessssnseneetecseenenstsnseseseasnenseneanees 173 People v. Memro (1995) L1 Cal.4th 786 ooccccccccccccccsssscssessessssesesesecassesscacsesesescansverssesensssssseseseseeneuessaesseneeceneneeenenstens 254 People v. Mendoza Tello (1997) 15 Cal4th 264 vicccccccccccccscscccscscsesesescseccsesesececacersecessesesesssesessessnesseesesasnesasseeneneeensecasenceas 141 XXVili Table of Authorities People v. Montiel (1994) 5 Cal4th 877 o.cccccccccccccsscsssesesecsesesesesesesenesescececeeeesseneeeeceeeeseeseseseensnssesecseseenesesenseeaeaeseeeesessey 255 People v. Morales (1989) AB Cal.3d 527 occccccccccccccccsssssesesseecsenscsensesseacsceseseeaescessaecssseeeeseeeceeeeeaereseessenenseeesareenseasesaeases 110 People v. Morris (1991) 53 Cal.3d 152. ccccccccccsessessssesescsesesscsessseesceceseessceesscnenersesessesesesesessesesessssnecsesensessensessseeeees 194 People v. Morrison (2004) 34 Cal.4th 698 ooocccccccccccccsccscssssessesessnecsecseeseceseeeseeeecsessesseessseevacsecsesaceecesessaeeseeeeees 254, 255 People v. Murtishaw (1989) AS Cal.3d LOOL ooccccccccccccscsssscssescssesesessessesecsenecerseseecseesssseseseseesnserscnsensessssssessssseesseseesees 193 People v. Nero (2010) 181 Cal.App.4th 504 ....ccccccccsscssscssssssccssssssssntinssnseseccesssssnnsnssniunmeesseeeesseee 94, 101, 102, 103 People v. Nicolaus (1991) 54 Cal.3d 55 1 ovcccccccccsssssssscsscsescsesccesescseseseeseeeseeeesseeeessqeeesessenseesenersesssescseseseaeereseeeneseesseseey 230 People v. Noguera (1992) A Cal. 4th 599 ooocicccccccccscescsescseseesesssecseeceeececaesecsereeessesssesssensessseeeceesssaesssesssssasesseeaseenenes 195 People v. Ochoa (2001) 26 Cal.4th 398 oooccccccccccccccscsscsccescsssescseseceseesesteesssacsceneesnsnssssssenssssesssessessasserasseesssseeseesssennees 69 People v. Olivas (1976) 17 Cal.3d 236... ccccccccccccccsssssccessssscesesscsesnsssesenesesesesceaeseseecacsenescsenesesescsasessessasecseseseesesassanenees 257 People v. Pantoja (2004) 122 Cal.App.4th 1ceceeeeecseeeteesesrsnscsssesesesesssscsssesenssenesesessnesenseeseseessesacseseasaeessenenerens 141 People v. Pearson (2012) (S120750 Cal. Jan. 9, 2012) 2012 Cal. LEXIS 2 oo. ecececcesseseseneseeseeeenenensenetereeees 85, 86 People v. Penoli (1996) A6 Cal.App.4th 298 ooo. ececcccccsecnssesessessssssscssssssesssssssneseseseeseseensnsenensacasensneceeneeeneeasaransenacees 167 XXIX Table of Authorities People v. Pensinger (1991) 52 Cal. 3d 1210 woe ccccccccccecsseeseceeeeeeeesneesseerseeceeeeeseseecsseeseseeeseeesseeenrerinenses 179, 180, 187, 193 People v. Pinholster (1992) 1 Cal.4th 865 ooocccccccccccccccsssecssessesescesseseeeneeecacseseseeserarscsessesssesessesesesessesesaseeasaeneneessasaes 69, 195 People v. Pitts (1990) 223 Cal.App.3d 606 .0...ceececccececsesesesssssesssssessesesssssnescseessnsseeeeeenmsecesisestimensacsnenseesseeeneenes 263 People v. Poindexter (2006) 144 Cal.App.4th 572... cccccscssssssesessescseeseseseeeeseseeessenenensnenensesesssereasesteessnsenenanens 109, 110 People v. Pope (1979) 23 Cal.3d 42iiicccsscccccseccsesnseceessseneeeseeseeeseeecesesssseeeeesesegeeseaeseenereesenes 119, 141, 184 People v. Prettyman (1996) 14 Cal. 4th 248 ooocscccscssseesseeeeeseecesseeeeesaeestseerseesssssessseseessesseeeeseseeeeneneeeseeeeeeeenees 100 People v. Pride (1992) 3 Cal.4th 195 .occcccccsssssssscesscscsesesseesecseseseserscseeeeessesesssssscsanesseesenseeeeseeeesenseaeeranenenenes 195 People v. Prieto (2003) 30 Cal.4th 226 ooeccccceccccccccscsssscssscsesscseccesceeeecsecsecseseesseecsesscsseessesesenseseenseeneeetss 238, 240, 258 People v. Quinn (1964) 61 Cal. 2d S5 Liccececcccccccccsescscscssscsseeseseeeesecescseceseesessessecsesssssscseeeessseesssseeseeeeaeesaesneeserecarenises 155 People v. Robinson (2005) 37 Cal.4th 592 ooicccccsscsccscssssesscscscsesesesesecseseecesssceseessssssssscsesssesseacseesansesesseeseesaseevecaeenenes 230 People v. Rodrigues (1994) B Cal4th 1060 uu. cecccccecccecccscscsssesescesesceeneeeeceeesceecsssesssssseeesessesecesseeaenessneeecenaseeeenenenseensessanes 86 People v. Rogers (2006) 39 Cal4th 826 coccccccccccscssssssssscssssesescsseseeeecsecesersesssetscsesessssesececseseesseseaeneneasecseeesssnesscesenes 248 People v. Ruiz (1988) AG Cal.3d S89occ ecccccccsesessssscsscesescseseesssesescceseeecsesecssesssesasssessenesseeenseeeseesereracaseseetens 108, 109 XXX Table of Authorities People v. Samaniego (2009) 172 Cal.App.4th 1148 ..ccccccccccssscsssssssessssseesessessesssneeeseseessssssesssssesssen 94, 100, 101, 102, 103 People v. Sanders (1990) 51 Cal.3d 47 Livcccccccccccccccscsssscsesssscssseseescsesecacseseseeseeescaeeecacseeenesseeecessesceeceeseeeseneseneees 198, 199 People v. Sengpadychith (2001) 26 Cal.4th 316 .occcccceccccccsccsesesscsesceceeeseneeseacaceessesesecseseseeseeeeecaesceeeseaeatessenevacceeasecseaees 94, 112 People v. Siripongs (1988) 45 Cal.3d 548ccccccccccsseseseseseseneneeneseseeeeseseseeeseneneseeeeepsesessesieaseesstansseceserenssenseesesseasesseentenes 71 People v. Smith (1970) A CalApp.3d 41 occcccececeeeecereneseneeseessessesscsesssessesensesesssesesnessensessesesseneaseasessesseseenens 265 People v. Snow (2003) BO Cal4th 43 ooocccccccceccccsssssscssesssesesesesseseseesesesesensenseesacseteeseesesseseeenseseasseeeeersneeenenees 238, 258 People v. Stansbury (1993) A Cal4th LOV7 ccccccccccccccsccsesscsesessssesseecsseecsesecsaeneneeaesaeeecaeseeaesecseseaeeeseseeseetseseees 181, 184 People v. Steger (1976) 16 Cal.3d 539. ccccccccccccscsssessesecscseseseseesesseseseseecsecseecsesaesenecseessesacseeeseraracsceteavsssnasesaueessceees 108 People v. Stevens (2009) AT Cal.Ath 625 ooocciccccccccccsscsscessccssesssseceseeseesseseesaeesaceeeseeeseatensess 163, 164, 165, 167, 171, 174 People v. Stewart (2004) 33 Cal4th 425 ooocccccessccesssesesseeseseessccsseceseseseeceeeeenereeereeeneees 71, 81, 84, 85, 87, 88, 90 People v. Stone (1981) 117 Cab.App.3d 15 occccceceseseterecesereneseeseceessescsssessasessnscsusssssssssessessseessesseseseeseesenenees 265 People v. Strickland (1995) 11 Cal.3d 946... ccccccscccscscscsssscscseseseseeesescsssesesessecaeasaeseneeseeeseseceecseaessacaeaseesestsasessasesesseeses 187 People v. Superior Court (Engert) (1982) BL Cal.3d 797 ooiccccccccsccscccsecssscssecsscsssssecsseesseeseceececseesesecesnedsaeeeaeeeeseesaerseesersassseeeanesses 228 XXXi Table of Authorities People v. Tanner (1975) 45 Cal.App.3d 345 cccccsscccssssssssseesssessscesssssssssssnessceensnnneneesesecsssssnns 153, 154, 155, 156, 157 People v. Tate (2010) AO Cal4th 635 coiicccccceccccccsscscccsssseecesssneeesseceterssaeeccesesssccessnseesesessneeereessgas 217, 219, 220, 221 People v. Taylor (1990) 52 Cal.3d 719vic ccccccccsscccssccecssnerseeceeseeceeesessscesaeeesssaseenneeseseesesesaeeeessaeestesersasesseserees 193, 194 People v. Terry (1964) 61 Cal.2d 137 viccceecccsscsssesscsscsscsscscsesecssscssesessecsecessecseeeseresasssceecsesessecsacsesassesessensesenreasensaeas 194 People v. Thimmes (2006) 138 Cal.App.4th 1207 oo... ccceeccesecsscssseesesssseeeeseceneneseesesseeeeneceseeaeeeesssssseeseassereeneey 141, 142 People v. Thomas (1977) 19 Cal.3d 630 ....ccccccccccscccsssesescscsesescsecceesesesecscseresenesesseenscsessecescassssesesssescseasseeesenteeasasasesentass 245 People v. Thomas (2011) 52 Cal.4th 336 voocccccccccccsssscsssseecscsesecsesceesecscseeeesacssseesesssccsasssseesssseeeseseseeseeeeeseneeases 219, 221 People v. Thornton (2007) A] Cal.4th 391 cccccccccccscsscscssessssesscsessssesecaeeeesacescerseesesscesersessssessassesenessesseasersaneaseenees 183 People v. Virgil (2011) 51 Cal. 4th 1210 oocccccccccescscscssscsssseesseccecesecesscsenesseesseesseassassessseneeseesseeeenseeeeeteenssenenerenees 164 People v. Walker (1988) AT Cal3d 605 ...cccecccsccsccsessessscseseceesesecestenseecscsestseseecsnssssescssesseaseneneseseeeensnsasesssaneeecseasersicty 229 People v. Watson (1956) 4G Cal.2d 818occicceccccsscessssecssecessnececetsaeeesssesssssaeeeseeesesenecssearecsaneeeniees 158, 163, 175, 177 People v. West (1970) 3 Cal. 3d 595 vcccccccccsscscscscscscscssssececsesscsecescsseseeesssssseseseersssesseecsneesnenesseeesesesesicacsnenersneseaes 155 People v. Wickersham (1982) 32 Cal.3d 307 ceccccecsssscscscsesessssssccssescssseceecseeeeeseasseeseseessasesssaseesesseseseesecseeuseeraneraeseneasetins 112 XXXIi Table of Authorities People v. Wilson (1992) 3 Cal.4th 926. .ccccccccccccssscccescesssessessseescsesseseeeeseceseeecaseececsecesssseeeevscseeeeaessssesesessssessceraeseenss 183 People v. Wright (1990) 52 Cal.3d 367 viccccccccscccccscccsccssccssescsecscsecsesscssesessseeeceeeseceeescaeeesaeeersceeeseeaeseeieveraeeetsseenesaeeenens 193 Westbrook v. Milahy (1970) 2 Cal.3d 765 voccccccccccccscsccssesescesscsecsesesecscsecsccsesceeeseecssaeaeesecseaecacscvaseecaececaeeaeaaveceavensaeeeeeseceees 257 CASES FROM OTHERSTATES Baxter v. Montana (MT 2009) 2009 MT 449 ooo cccccescsccccscseseseseeseceeeesseseceseseeerseeseesescseesstesssesesereracaesssesessesseasesessenees 212 Johnson v. State (Nev. 2002) 59 P.3d 450. ceccecccccccsccsecsseccssecseesseceseceseecsecssceeeceeeeecenerseenaeeaeeseeesestensaseeeeseeees 237, 243 McCarverv. North Carolina (N.C. 2001) O.T. 2001, NO. 00-8727 ooeccccccccccccssccscseesessceecseseeeescesseceeecaesecseseesesarseeeeeessesersessensseestsesesaeses 261 State v. Bobo (Tenn. 1987) TIT S.W.2d 945 vcccccccccscccssssccescsscsesecsescesessesseseceeaceaeeecaeeecceeseatseeesaeessenacetsesueseseseseeseseseees 252 State v. Ring (Az. 2003) 65 P.3d O15 viecccccccccssssesescscscsecseseseseseessecseeescseseseaeneecseecaesessesesteassesssecsvausessseseseesesssesseseneas 242 State v. Whitfield (Mo. 2003) LO7 S.W.3d 253 occccccccscccssscceessessssssesscscecseeccsccsceecsesceseseeasacsanesenscaeeeesesseetsnsssessesseeeseseesenees 242 Woldt v. People (Colo.2003) 64 P.3d 256 viiceccccccecccccsssscssssscsscssccesecseeecseeeceseaeeseseeeeeeaceaseersessesaseesessoesssssesesecessesesseseseeasees 243 XXXill Table of Authorities CALIFORNIA STATUTES Code Regs., § 2280 ef SOQ. ..eccceccessssssscssesssesssecnscnscesseecsscneeeneeecneeseesesceesserssenseseensasanas 249 Evid. Code, § 1153 v.cccccccccecesescecenerssseesssssevecssscssssesecessssssesaesessenesssueeesasaeeteensresseeecaneesenes passim Pen. Code, § 20 w.ccccccccsseesceceseseesereetseeesessssesesesesseecsssesssenseeneessseaseesseeseenseeerseneeseetersneaenens 99, 113 Pen. Code, § 186.22 ..ccccccscssscscseeseeeeeseseseseerssesescecscsesesensssseseseseseseseseneneeeeeasenenenaensics 15, 21, 115 Pen. Code, § 186.22, subd. (D) oe. ceeeeeesssseesesesereseseseseseseseseseneeenesensesessnenssasssseneesseseeseestenens 8 Pen. Code, § 186.22, subd. (D)(1) ...ecececeeseecesessessseseseeesesssesseeaeseseecenseeasneensaserersesseseeeesseenegs 15 Pen. Code, § 187 w.ccccccccsessessesecceececssessecseesessscsssusesssessravesesesseseesseseasseeeeaesnecsessseasasssensseeeeseseaeeges 99 Pen. Code, § 187, Subd. (8)...ceceesesscsscsenetesseseseseseneneeseseneseeacsensessseaesasesneneess 7, 15, 115 Pen. Code, § 189 w..ccccccccccescsseceseseserscseeseessersesesescessenesecanscessesesasesaesaneeeeasareeseneasasssessasensaces passim Pen. Code, § 190, subd. (8)...ceceeeeeesceeessecsssesesesesneneneneeeseneeseecacaesenerssneeseneacesieesees 240, 241 Pen. Code, § 190.2 occseeseesceesseesesseesssecsesnesseeesesenseenes 226, 227, 228, 231, 240, 241, 251 Pen. Code, § 190.2, subd. (€)(3) 0... cceeesceseeseseseenenesenenseseeereneeaenecareceretsnesseenseseenenees 8, 13, 15 Pen. Code, § 190.2, subd. (a)(10)...eeceseescceseseeessseseacsesesenenensaenesenensacsssnsnestseenenananenesseaeaees 8 Pen. Code, § 190.2, subd. (a)(15)... ce eeeceeessessscsesescsenessseceseresenenesenensseesnenensesenenessetsssenaeneasenenees 8 Pen. Code, § 190.2, subd. (a)(17).... ce ceeessecesesesescsssescenenescnenenenenenseessentenseeesssaesenensseesseassennenenees 8 Pen. Code, § 190.2, subd. (€)(18).....ceeessecesesesesssesescensneensneeeneneestenseaseeensssssseaesessseesseasenenenenens 8 Pen. Code, § 190.2, subd. (a)(21).... ee eeeessescsessscsesesesesesesnenseseenensensessenenseraneeneseney 8, 13, 15, 115 Pen. Code, § 190.3 ...c.cccccsessseseseseseesssesessensessesesenesssesesesesseseeseasesseaeasaesasevensesseenensnaeneseaees passim Pen. Code, § 190.3, Subd. (8)... cee ecssesesesessceseessesencsenesenenseseneneseesesenentiseenenentenens 229, 231, 241 Pen. Code, § 190.5 voccccccecececeseseseesesesessesssesessssesessscenensssseseesenensnessenenenenensasecensecsnsseatassseeseneenees 241 XXXIV Table of Authorities Pen. Code, § 190.4, subd. (€)...... cc ccececeeeeseeereeseeteeteneeseeecsesessssessecassenesssssseesessseseeneeetasees 13, 192 Pen. Code, § 207, Subd. (a) ..c.cccccececececcseceseeeesseseeesestscseseeeesssesesssscsevecsessaesessseseseneestensesseneneneeretsey 7 Pen. Code, § 210.5 ..ccccccceccscsessseeeeeeeeseeeecsesscstsnerevecsesssscseasscessessecssecsesesessseseatiseneesseeseaeass 7, 16 Pen. Code, § 211 occcccccccccssesseceeseeneaesenseessescsessecacscsecersssesesaesesssseessssesessnesesenaseneeseeseereneees 7, 16 Pen. Code, § 245, subd. (€)(2) .....ccccceccecscececeeeseceseeseenseeeeneesesesesnscseneneacsesasansseanesecaresnessesseneneasasecs 7 Pen. Code, § 245, subd. (D) oo... cecceereseeereestsesnsescseseeesessssenesecsesenesenenssssasnsasaeacareeaneeeterntees 7, 16 Pen. Code, § 246 o...eccececceecscecceccsersecesesesesceseeesesesesanssseseeaseasseneneenes seceseeseceeseseeseeeeseeteeeeeeeeees 7,15 Pen. Code, § 451, subd. (Gd)... ceceeeeeseeeeeeseeeserseeesesessenesssesesesesseneneceseeseeeeasaeeenesaerenseneentees 7, 16 Pen. Code, § 654 w.ncccccccccccessccsessetceeeseseseecesecessssceesecsesseassssesacseeassessesenenseseseeesaseeneeneetaeeasanes 16, 17 Pen. Code, §§ 654, 4502, subd. (a)... cceeecessetsesesrersessesesssesssesesseseneeceeseseseseasessesneneseereasneneney 17 Pen. Code, §§ 654, 12021, subd. (8)...ccececceeeeeseseeeneeseneseeseeseeseeensesseenentertenennsenentees 16 Pen. Code, § 664, Subd. (€)....ceececsecececrsceeecessesssseseeesessescaessasseenessneseseseesenesssesasnseesieeesereeastesacnsens 7 Pen. Code, §§ 664/187, subd. (a) oo. eeceecceesececseceeeeceeseeneneeeesenenenenseseneeasaeereneeaseeneeerentees 7,15 Pen. Code, § 667, Subd. (€)(1) oo. cececceseessssesesseseseseseseeceneeseseseseseseneseaeseaeaeseesensetecenetsesensneacacess 17 Pen. Code, § 667, SUDdS. (D)-(i).... eee eeeseesesessserescseseseneneeseseseneeseesaseeneesenseeeseerenseeeenetenens 8,15 Pen. Code, § 11S.) cccccccseesserenesensesessssescseesesecssseseseseeesseseeessssaseensneisnseeennesensseegs 9, 37, 42 Pen. Code, § 1158 woccccccccssccesceceseesstcsenenessesssrerstsescssseeesessesesanecsesesesenecssesiseeseneenensenseeaneneaeeey 258 Pen. Code, § 11588 ccccccccsessceseseeeesesesesesesssessseseessssesesesensnaesesasecesesenenensseseseceescsacerseeearaeeses 258 Pen. Code, § 1170, Subd. (C)occecsseseseseneseeeseeceneeseseneseessseeeneneeseneneneneaeeeneeneeenenenenasey 249 Pen. Code, § 1192.10 ecccescecesseeseesesseseeseseeesrsseseesesesesneasseseseceeseeesensassnsnseeesaeeacieattastenssisensecens 153 Pen. Code, § 1192.2 .occccceesseeesesesestssessssssessescssesensnsneseseneceeenesseseesscseeeesseenensassessssasesereneenesees 153 XXXKV Table of Authorities Pen. Code, § 1192.4 oocccccccccssseceeeeeeseteeeeseseessrscessessssscansesseeeneneseseneasseaeneneasaceneneusecssgenens passim Pen. Code, § 1202.4 o.c.cecccccccccscseeseceeeescseseeesessesesesssscscseensnsseseeeseseenenenesensenereeeassuensanenseserenesueanees 17 Pen. Code, § 1239 o.ecccecccscscessececneeeessesesesesesssssesseseaesesanesesesessseseseneseceeeceeesessenssaseneessesseerassenssnss 1 Pen. Code, § 1259 v.cccccecscccseseseesceecesessseeesesessssessseesesssssanenessaesesececeesseneesaeseesssssseneesecesens 94, 111 Pen. Code, § 1385 ....ccccccccsscceseceseeeseceneeerseessesessssesceecsessesacsesseseeaeneeeeeaenasseneeecessssssssenseraneenenanaseasanas 4 Pen. Code, § 14240... ececcscecscescesesscesesseseseseesenesseensssevaesesenseseseeesnenseessaseransassesseecscsesenesassessseaenenens 145 Pen. Code, § 4502, Subd. (8)... ceeeeeceesesesesrsscsesesesesenesesenesesescseeeeeenesetensaeersnsveasaceeareseneneseseeneans 8 Pen. Code, § 12021, subd. (a)(1)....eee eeeceessessssessesessseseseesseseenenesenseeeerensesnsseseseasseeeseneasaneneans 7 Pen. Code, § 12022.7 .ccccccccccscssseseseseessesesesesvesesesasesesesessseseaeseseseeneceecaseeeeenenensasacaeeseresenseeasssesesas 8 Pen. Code, § 12022.53, SUD. (C) ...ceeceesesseesseseseseeessseseeseneeeeeeseeseetenseesscaseeneasenseeneseseesesenenees 15 Pen. Code, § 12022.53, subd. (d) oe. eeeceesesssseseseseeseseseseeseaeseneeeseseneeacaensnenssnensenenersensseasieenegnas 15 Pen. Code, §§ 12022, subds. (a), (D) oo... ececcccecceseseseseseenesseesenenenseerensasesneaseseessesseeenenesseseeeens 8 STATUTES FROM OTHER STATES Washington’s Death with Dignity Act (Revised Code of Washington, Chapter 70.245.) ......ceecssesessseeseneeseseenesenteseicncaesennensensesensesasenaneeneneneees 212 Advanced Directives Act (Texas Health & Safety Code Chapter 166) .........-:eeeeens 211 Oregon Revised Statutes, § 127.800-995 occccesecestesereenenestseteeseeestensseeneeneseensanenennseaes 211 XXXVI Table of Authorities FEDERAL CONSTITUTIONAL PROVISIONS Compulsory Process Clause .........ccccceeccesseseseeesesenseteneeneceseeesensasatanensnenesssseseeeassrassessneasens 126 Confrontation Clause .......cccccccccccccseeeeseceeeeeeeesseesseesesanssesessesesseseesseseeseessaeeeerseseeiseesaeeesees passim Due Process Clause ...c...cccccscecssccssccccsscessccceseersneeecsseceseeessssesessenesseeseesecsseeeeseeseaeesersneesseseenaeeey passim Sixth AMeNdMENt oo.ecccceccceescsscsseseeeceecseeeseeeceeeesceseesecsenessessessssenesscaseaeesseneesecseeeetages passim Eighth Amendment ...0.....ccceccesseseeeeseescseeseeseeeeneseeneeeseeeaeenenseeeecaeeessnsensaneseseeseeseseaseeeeneesy passim Fourteenth Amendment ..........cccccccccesccseeeecneeceseeceeneeeseeeeeesesesscseesessseaeesecseneesaeeeesnsaeteesagss passim STATE CONSTITUTIONAL PROVISIONS Art. I, § 16, Cal. Const. oo. ccecececececscsesesessresesesesssessesssesnsnesesensenseneneensenensicseersnersensesseeseesseenenenans 81 JURY INSTRUCTIONS CALCRIM No.400 o..cccccceeeceececeseeeeseessssesseeesessessessessenenecsseneneeaseseesersenteetay 100, 101, 102, 103 CALIIC 8.88 occ cccccsscscssessscsssecsccscesesessesensesesecsesseneessseneescecesssscsasecsesaesessenessecaenneneneceesastenecsents 241 CALJIC No. 2.72 cicccccccccccsscssscsccsscsseseseeseesenceecsecesacseensasseseseesssecssseeseecseeseeeageeseneeuseneraseeressenes 139 CALJIC No. 3.00 ooeccececccccscesscccscsscsccsecscsscsesseesecsseeeaeesceseesessscssesecsssresssseeseenseseseseeseareoreeetiey passim CALJIC No. 3.01 cieccccccccccccsssescsecseseseeceseeeceseecesseseesesseseseesseseseseenessaeseesenseenesseraseaentegeneeeses 95, 96 CALIJIC No. 8.20 cecccicccccccsssssecsscsseseseesessseeccececseseseessessesessssenscsseseassessecssesneenseseeuerseneseesteasaes 107 CALIIC No. 8.85 .cccceccscssccscsssscsssescesseesesesceseseecseecsesesseecsecessesecsssessseesesesenessenseeneeseneceesenseesssegeetes 255 CALJIC No. 8.88 cooccccccccsccccscscsscscescsssscscesesesecseeetaceecsssesesceccssseesscecsesasaessesseeseeeseenererasesetens passim CALITIC Nos. 8.25, 8.25. iccccccccccscesssseseseceecseesesssessseessssssescseseseseceesssesessensnseenseresaeiseeesseesesestees 107 XXXVil Table of Authorities CALIFORNIA RULES OF COURT Rule 2.1050 cocccccccccccccccccccceceesccccecceccsecccceceevensscnsscceusscssssaaaeeececeeseeseeeeeeeeeeeseaueeessaueeeeensaeeseeeesseee? 221 Rule 4.42(€) ooccccccccccccssssssesssseeeeeeeneseseseevsesessesssesenesesesesessseneeessacasecneneiessacsnsseseacsseerneseneneseeasaeens 258 Rule 2.1050, Subd. (D) ..ccecccecesceetereeeseeseeeecsesesessseeesessesenenesenasecseneaeserasscenssensseeneseseneennenseneety 220 Rule 8.200, subd. (a)(5)...ccccccccccecseceesecceesestsesrssseesesesesesesneceeseasneneneeecseneesssansrenesesssesessenenenerney 265 OTHER AUTHORITIES 1978 Voter’s Pamphlet, p. 34, “Arguments in Favor of Proposition Do cccccccceceusccceeeceeueesacesessceececsenaseeeseeeeeseeeeeesseneeeeeeseeeceeseseeeeeneeanneeeseeeeeeeeteaeeeeeeeeeeeeeeseeeeeeseeentee 227 Dressler, Reassessing the Theoretical Underpinnings ofAccomplice Liability: New Solutions to an Old Problem (1985) 37 Hastings LD. OD ceecccecececescescecscscsssesceccscsesesesescseseeeeeceesesereseseseeensracsesessescaesesenessesececeeeenseteceseerensnensseseneies 100 Kozinski and Gallagher, Death: The Ultimate Run-On Sentence, 46 Case W.Res. L.Rev. 1, 30 (1995)... cee ceeceseeeeeesseesseecnsesneerseeeseesaeensseaeesneeesasennenes 262 Stevenson, The Ultimate Authority on the Ultimate Punishment. The Requisite Role ofthe Jury in Capital Sentencing (2003) 54 Ala L. Rev. L091, 1126-1127 oo cecccccccccscenceeceeeceecesscseceeeseeenscseeseeeecneesaecseneessesesessneasenseseeaees 243 XXXVili IN THE SUPREME COURTOF THE STATE OF CALIFORNIA THE PEOPLE OF THE STATE OF CALIFORNIA, SUPREME CT. NO. $133660 Plaintiff and Respondent, Vv. LASC KA050813 OSWALDO AMEZCUA AND JOSEPH CONRAD FLORES, Defendants and Appellants. APPELLANT’S OPENING BRIEF on behalfof OSWALDO AMEZCUA STATEMENT OF THE CASE STATEMENT OF APPEALABILITY This is an automatic appeal pursuant to Penal Code Section 1239,' subdivision (b), from a conviction and judgmentof death entered on April 20, 2005, against appellant OSWALDO AMEZCUA in the Superior 1 Penal Code. Unless otherwise indicated, all statutory references are to the Court of the State of California in and for Los Angeles County. (18CT 4775-4784; 14RT 3254-3264.) The appeal is taken from a judgmentthat finally disposes of all issues between the parties. INTRODUCTION In this brief, appellant demonstrates that the trial court violated his rights to a fair trial and impartial jury as guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution when, during the selection ofthe jury, the trial court erred by restricting voir dire on the question of whether prospective jurors would always vote for death if appellant were to be convicted of multiple murders and by excusing a prospective juror who, despite conscientious reservations about imposing the death penalty, stated repeatedly that she was willing to carry out her duties as a juror in accordance with the court’s instructions andher oath. Appellant also asserts that the trial court committed federal constitutional error when it erroneously instructed the jury that a person whoaids and abets is “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 combinedacts of the principals, but the aider and abettor’s own mensrea and therefore his level of guilt “floats free.” In addition, appellant was denied his right of confrontation under the Sixth Amendment whenthe results of one victim’s autopsy were entered into evidence through the in-court testimony of a forensic pathologist who did not perform the autopsy. Thetrial court also erred in pathologist who did not perform the autopsy. Thetrial court also erred in admitting the prosecutor’s jailhouse interview of appellants. Evidence Code section 1153, Penal Code section 1192.4, and public policy render statements regarding criminal conduct made in the course of plea negotiations inadmissible. Further, appellant’s rights to a fair trial, to present a defense, and to the presumption of innocence were prejudiced by heightened courtroom security. Here, the trial court did not base its security order exclusively on case-specific reasons as is required and did not state on the record why the need for the heightened security measures outweighed potential prejudice to the defendants. Also, the prosecutor committed misconduct and violated appellant’s right to due process of law when he invited the jurors to depart from their duty to view the evidence objectively and instead to view the case through the eyes of the victims. Appellant also asserts that his right to a reliable determination of the judgment of death was violated by the failure to present a penalty phase defense, appellant’s express requests and the trial court’s consent notwithstanding. In addition, the trial court erred in instructing the jury that death is a greater punishmentthan life imprisonment without possibility of parole and in so doing violated the Eighth Amendment’s guarantee of a capital jury suitably instructed to avoid an arbitrary and capricious death verdict. Appellant further asserts that California’s Death Penalty statute, as interpreted by the courts and applied at appellant’s trial, violates the United States Constitution. PROCEDURAL HISTORY In the early morning minutes of July 4, 2000, codefendant Joseph Conrad Flores (Flores)? used a public telephone on the Santa Monica Pier to return a contact made to his pager by San Bernardino County Sheriff's detectives investigating several shootings and homicides. Soon after, Santa Monica police dispatched to the pier used a description given them by the San Bernardino County Sheriffs to identify and arrest Flores. (LORT 2483.) Appellant OSWALDO AMEZCUA was walking on the pier with Flores when Santa Monica police approached them. Flores made contact with the officers, but appellant turned and walked into the Playland Arcade where he barricaded himself and arcade customers. Appellant shot at and woundedpolice officers before he was arrested. (LORT 2379-2384.) During the long and somewhat complex pretrial period? that preceded the capital trial in this case, appellant and Flores were at first The victim in count 4 is George Flores and he is identified throughout this brief as either George Flores or George. Codefendant Joseph Flores is most often identified simply as Flores, but also sometimes as Joseph Flores. Appellant was arrested on July 4, 2000. On July 6, 2000, appellant made the first of multiple appearances in the Superior Court of Los Angeles County, Santa Monica Courthouse, in LASC No. $A039397 (Death Penalty Supplemental IV, Supplemental Clerk’s Transcript, pp. 35- 36 (hereinafter DPSuppIV, SuppCT 35-36)). (See Felony Complaint in LASC SA039397 filed on July 6, 2000, and First Amended Felony Complaint filed July 13, 2000 (DPSuppIV, SuppCT 5-13, 46-59).) On December 20, 2000, at the request of the prosecution,the trial court ordered a dismissal of the pleading in the Santa Monica case in the furtherance of justice (Pen. Code, § 1385), after the deputy district attorney represented that his office had filed a superseding complaint in West Covina (LASC represented by counsel. (See, e.g., 2CT 295.) On January 7, 2002, however, the trial court granted the motion of each defendant to defend himself without counsel. (3CT 664ff., 773-774; Faretta v. California (1975) 422 U.S. 806). On May 6, 2002, at the request of each defendant, the trial court once again appointed counsel to represent both men. (7CT 1689-1690; 2RT 7.) During the time the defendants acted as their own counsel, they met on several occasions in the Los Angeles County Jail with the trial prosecutor. (3RT 728, 738.) The lead investigator was also present for one of the interviews. (11RT 2626.) The trial prosecutor surreptitiously recorded two of the interviews. (3RT 738.) During these interviews, appellant and Flores made certain admissions regarding uncharged offenses. (3RT 728.) In addition, the prosecution also sought and obtained authorization to wiretap and did wiretap the jailhouse telephones used by appellant and Flores during a three-month portion of the period the defendants represented themselves.’ (4RT 1048-1052.) Collectively, these events led to further police investigations and resulted in the filing of additional charges against the defendants. In addition, during the pretrial period they were housed in Men’s Central Jail in Los Angeles, Flores and appellant were individually reported to be in possession of shanks on separate occasions and also to the West Covina pleading. (DPSuppIV, SuppCT 124-125; DPSuppV, SuppCT 28-30.) ‘ Thetrial court denied the defendants’ joint motion to suppress the use of the wiretap intercepts at the guilt and penalty phases ofthetrial. (4RT 1114-1115.) Ultimately, however, the prosecution chose not to present any of the wiretap intercepts at trial. (14RT 3083.) have acted together in attacking an inmate on another occasion. (8RT 1989; ORT 2149.) As a result of these events, appellant and Flores wereinitially charged by felony complaint® and then by information® with multiple counts of first degree murder with special circumstances and multiple counts of attempted willful, deliberate, and premeditated murder, attended by gang and weapon enhancements. Later in 2002, appellant and Flores were charged by grand jury indictment filed on November 26, 2002 (1CT 155-162) and determined to be a true bill (1CT 164) with additional counts of first degree murder with special circumstances and additional counts of attempted willful, deliberate, and premeditated murder, all of which were attended by gang and weapon enhancements. On December 3, 2002,the trial court ordered the information and indictment consolidated into an amended information. (7CT 1744- 1746; 2RT 595.) On January 22, 2003, the amended information’ on whichthis case eventually wentto trial in 2005 wasfiled, alleging the 47 counts and ° See Felony Complaint (LASC KA050813) filed December 19, 2000 (1CT 209-232); Amended Felony Complaint filed February 1, 2001 (2CT 266-289); Second Amended Felony Complaint filed March 19, 2001 (2CT 314-338); Third Amended Felony Complaint filed December 13, 2001 (2CT 472-498); Fourth Amended Felony Complaint filed February 25, 2002 (4CT 883-912); Fifth Amended Felony Complaintfiled March 13, 2002 (SCT 1110-1138). 8 See Information filed April 2, 2002. (7CT 1642-1676.) y This version of the pleading was titled simply “Amended Information.” (7CT 1751.) the special circumstance, weapons, gang, and strike enhancements summarized below. (7CT 1751-1792.) The amended information charged appellant with the crimes of murder® (Pen. Code, § 187, subd. (a)); attempted willful, deliberate, and premeditated murder’ (Pen. Code, §§ 664/187, subd. (a)), including premeditated murder attempts committed against peace officers’” (Pen. Code, § 664, subd. (e)); kidnapping’! (Pen. Code, § 207, subd. (a)); false imprisonment’? (Pen. Code, § 210.5); robbery in the second degree’® (Pen. Code, § 211); assault with a firearm’ (Pen. Code, § 245, subd. (a)(2)); assault with a semiautomatic firearm’? (Pen. Code, § 245, subd. (b)); shooting at an inhabited dwelling'® (Pen. Code, § 246); arson of property’” (Pen. Code, § 451, subd. (d)); felon in possession of a firearm'® (Pen. Code, § 12021, subd. (a)(1)); and custodial possession of a shank’? (Pen. Code, § 4502, subd.(a)). 8 Counts 1, 4, 11, 42, 45. (7CT 1751-1792.) 9 Counts 5-7, 18, 19, 20-24, 38, 43, 46. (7CT 1751-1792.) 10 Counts 14, 18-24. (7CT 1751-1792.) " Count 25. (7CT 1751-1792.) 2 Counts 28-33, 48. (7CT 1751-1792.) 13 Count 12. (7CT 1751-1792.) 4 Count 27. (7CT 1751-1792.) 'S Count 26. (7CT 1751-1792.) © Count 8. (7CT 1751-1792.) 17 Count 17. (7CT 1751-1792.) 18 Counts 2, 9, 13, 34. (7CT 1751-1792.) 19 Counts 37, 39, 41. (7CT 1751-1792.) The amended information alleged the murders were committed within the meaning of the following special circumstances: multiple murder?” (Pen. Code, § 190.2, subd. (a)(3)); witness killing” (Pen. Code, § 190.2, subd. (a)(10)); lying in wait’” (Pen. Code, § 190.2, subd. (a)(15)); felony robbery”? (Pen. Code, § 190.2, subd. (a)(17)); torture~* (Pen. Code, § 190.2, subd. (a)(18)); and intentional discharge of a firearm from a vehicle” (Pen. Code, § 190.2, subd. (a)(21)). The amended information also alleged that most of the crimes were committed for the benefit of a criminal street gang (Pen. Code, § 186.22, subd. (b)); that appellant had been previously convicted of a felony within the meaningofthe strikes law (Pen. Code, § 667, subds.(b)-(i)); that some of the crimes involved the infliction of great bodily injury (Pen. Code, § 12022.7); and that many of the crimes involved one or more weapon enhancements (Pen. Code, §§ 12022, subds. (a), (b); 12022.53, subds. (b), (c), (d), (e)). (CT 1751-1792.) On May 21, 2003, the prosecution notified the parties ofits intention to seek the death penalty. (Pen. Code, § 190.3; 7CT 1817; 2RT 633.) 20° Counts 4, 11, 42, 45. (7CT 1751-1792.) 21 Count 11. (7CT 1751-1792.) 22 Count 1. (7CT 1751-1792.) 23 Count 11. (7CT 1751-1792.) 4 Counts 1, 11. (7CT 1751-1792.) 25 Counts 4, 42, 45. (7CT 1751-1792.) The case was called for jury trial on February 22, 2005. (11CT 2810.) Twelve jurors and six alternates were sworn to try the cause on March 1, 2005. (17CT 4425; 6RT 1551.) At the close of the prosecution’s case on March 9, 2005, the trial court determined the evidence was insufficient to sustain convictions on appeal of the following matters and entered judgmentsof acquittal (Pen. Code, § 1118.1) as to them: the witness killing and torture special circumstances alleged as to count 11; the gang benefit enhancements alleged as to counts 18 through 33; the kidnappingalleged in count 25; the great bodily injury enhancement alleged in count 26; the false imprisonment alleged in count 32; the custodial possession of a shank alleged in count 41. (12RT 2766-2770, 2779-2782.) The trial court also ordered the amended information to be amended to conform to proof, as follows: by adding a new false imprisonment charge (count48)in the place of the kidnapping count(count 25) the court had earlier dismissed (Pen. Code, § 1118.1) and by adding appellant as a named defendant to the murder counts alleged in counts 42 and 45 and the attempted willful, deliberate, and premeditated murder counts alleged in counts 43 and 46, andto thestrikes law enhancement.”° (17CT 4465; 12RT 2785.) 26 The amendment of counts 42, 43, 45, and 46 to include appellant as a named defendant was made over defense counsel’s objection that the amendmentviolated due process and was untimely. The prosecutor represented that the omission of appellant’s name wasattributable to a “screener’s error.” (12RT 2785-2786.) Appellant’s affirmative defense consisted of a stipulation regarding evidence relevant to counts 1 and 2.27 (13RT 2854.) The jury received the case on March 10, 2005. (13RT 3002.) On March 21, 2005, the jury returned verdicts acquitting appellant of one count of murder (count 1) and one countof being a felon in possession of a semiautomatic handgun (count 2). (17CT 4541-4542; 14RT 3035.) The jury convicted appellant of four counts of first degree murder (counts 4, 11, 42, 45) with related findings that the murder was committed for the benefit of a criminal street gang (counts 4, 11, 42, 45) and that appellant intentionally discharged a semiautomatic firearm in the commission of specified offenses causing great bodily injury or death (counts 4, 11). (17CT 4543, 4549, 4569, 4570; 14RT 3035-3036, 3042- 3043, 3056-3058.) As to counts 42 and 45, the jury found the shooting from a motor vehicle special circumstance allegation to be true. The jury also found the multiple murder special circumstance allegation to betrue. (17CT 4569, 4570, 4573; 14RT 3056-3058, 3060.) The jury also convicted appellant of 11 counts of attempted willful, deliberate, premeditated murder (counts 5-7, 18-24, 46) with related findings in some counts that the victim was a peace officer (counts 18-24); in some countsthat the crimes were committed for the benefit of a criminal street gang (counts 5-7, 46); and in certain counts that the crimes involved the intentional discharge of a firearm (counts 5-7, 18-24). (17CT 4544- 4546, 4559; 14RT 3037-3040; 3045-3052.) a The jury acquitted appellant in counts 1 and 2 (see succeeding paragraph). 10 The jury also convicted appellant of five counts of false imprisonment (counts 28-31, 33) (17CT 4562-4566; 14RT 3053-3055); of three counts of being a felon in possession of a firearm (counts 9, 13, 34) (17CT 4548, 4550, 4567; 14RT 3041, 3043-3044, 3055); of arson of property (count 17) (17CT 4552; 14RT 2045); of two counts ofassault with a semiautomatic firearm (counts 26, 27) (17CT 4560, 4561; 14RT 3053, 3059); and of custodial possession of a shank (count 37) (17CT 4568; 14RT 3056). The jury convicted appellant of shooting at an inhabited dwelling (count 8) (17CT 4547; 14RT 3040-3041) and of robbery in the second degree (count 12) (17CT 4550; 14RT 3043-3044) with the further findings that both of these crimes were committed for the benefit of a criminal street gang and involved the personalintentional discharge of a firearm. The jury further found that appellant had been previously convicted of robbery in the second degree on June 2, 1993, in Los Angeles Superior Court Case number KA017616. (17CT 4574; I4RT 3059-3060.) The jury declared it was deadlocked on counts 38, 39, and 43 as to appellant and on count 40 as to Flores. The trial court declared a mistrial as to them. (17CT 4686, 4703; 14RT 3080-3082.) Before the trial’s penalty phase began, defense counsel informed the court that while he had prepared a presentation of evidence for the penalty phase, appellant was now requesting that no evidence be presented even though counsel had advised appellant that such a course of action would substantially increase the chance the jury would impose the death penalty. (12RT 2817.) Counsel for codefendant Flores stated that 1] Flores also wanted no evidence presented on his behalf. (12RT 2819- 2821.) In the hearing that followed, the court spoke directly to both appellant and Flores, jointly and separately, and advised them of their rights. Both defendants spoke directly to the court concerning the reasons for their decision. (12RT 2823-2842.) In a separate subsequenthearing on the subject, appellant and Flores further informed the court that they also did not want their respective counsel to cross-examine any of the victim-impact witnesses or present any argument at the penalty phase. (13RT 3016.) The court confirmed with each defendant that he did not wish his counsel to ask any questions or present any evidence during the penalty phase of the trial. (13RT 3020.) The court then ascertained that each of the two trial counsel for each defendant believed the defendant was sincere in his belief and stated position. The court accepted the statements of both defendants and their counsel. (13RT 3020-3024.) The penalty phase of the trial was presented on March 22, 2005. (18CT 4724; 14RT 3094.) At appellant’s request, no opening statement, affirmative defense, examination of witnesses, or argument was presented on his behalf. (18CT 4724-4725; 14RT 3105, 3194, 3218.) Also at appellant’s request and following a hearing on the subject, neither defense counsel northe trial court made any statement to the jury about the silence on the part of appellant’s defense during the penalty phase. (14RT 3086-3092.) The jury received instructions and beganits deliberations the same day. ((18CT 4725; 14RT 3218-3231.) On March 23, 2005, the jury returned verdicts of death for both appellant and Flores. (18CT 4747, 4748, 4752; 14RT 3236-3238.) 12 On April 20, 2005, the trial court heard and denied appellant’s new trial motion and that of Flores, in which appellant had joined. Appellant argued the court erred in allowing the amendmentof the charging papers to allege appellant as a named defendant in counts 42, 45, and 46; in denying the defense motions to recuse the district attorney’s office and the trial prosecutor, respectively; and in denying the defendants’ severance motion. As applicable to appellant, Flores argued error in allowing the jury to hearportions of the pro per defendants’ surreptitiously recorded statements to the trial prosecutor; in failing to dismiss the case on the groundsrelated to theillegality of the wiretap intercepts of the pro per defendants and the interference with the defendants’ Faretta (Faretta v. California (1975) 422 U.S. 806) rights; and in allowing the defendant to control the presentation of the penalty phase defense. (18CT 4770-4772, 4795; 14RT 3246.) The trial court then turned to the matter of the automatic motion to modify the verdict of death (Pen. Code, § 190.4, subd. (e)). Defense counsel informedthe court that appellant did not wish the court to reduce the penalty or considerthe alternative. (14RT 3246.) Thetrial court made the following findings pursuant to Penal Code section 190.4, subdivision (e), in denying the motion to modify the death verdict: Appellant was convicted of the first degree murders of George Flores (count 4), Luis Reyes (count 11), John Diaz (count 42), and Arturo Madrigal (count 45). The special circumstanceallegations of drive- by shooting (Pen. Code, § 190.2, subd. (a)(21); counts 42 and 45) and of multiple murders (Pen. Code, § 190.2, subd. (a)(3)) were foundtrue. 13 The evidence of appellant’s participation in these murders was compelling and included tape-recorded joint admissions by appellant and Flores, accomplice eyewitnesstestimony, and ballistics evidence. Appellant was also convicted of many other crimes involving use of force or violence, including four counts of attempted murder of civilians, seven counts of attempted murder ofpolice officers, and shooting at an inhabited dwelling. The evidence also proved that appellant had a prior felony conviction for robbery. Evidence of appellant’s participation in an additional uncharged attempted murder was introduced and proven at penalty stage. Appellant was a committed memberofa criminalstreet gang. The murders, attempted murders, and other acts of violence committed by appellant were unprovoked and demonstrated an extreme indifference and callous disregard for humanlife. Appellant and Flores appeared to treat their participation in the shootings and killings as sport. The aggravating circumstances in appellant’s criminal acts were overwhelming. Appellant deliberately and voluntarily chose to offer no evidence of mitigating circumstances at penalty phase. In conclusion, the trial judge stated that based on this review and weighing of evidence, he had determined that the jury’s findings and verdict that the aggravating circumstances outweighed the mitigating circumstances were consistent with the law and fully supported by the evidence. (18CT 4766; 14RT 3247-3249.) 14 On April 20, 2005, the court ordered that a judgmentof death commitment order and death warrant setting forth appellant’s sentence, as follows, be filed. (18CT 4775; 14RT 3254-3267.) Indeterminate Terms Counts 4, 11, 42, 45 — The trial court sentenced appellant to death (Pen. Code, §§ 187, subd. (a), 190.2, subd. (a)(3), (21)) plus 10 years (Pen. Code, § 186.22, subd. (b)(1)). As to counts 4 and 11, the court imposed a consecutive term of 25 years to life (Pen. Code, § 12022.53, subd. (d)) and ordered the remaining weapon enhancement (Pen. Code, § 12022.53, subd.(c)) stayed. Counts 5-7, 18-24, and 46 — The trial court sentenced appellant to a consecutivelife term (Pen. Code, §§ 664/187, subd. (a)) with a 15-year minimum paroleeligibility date doubled to 30 years (Pen. Code, § 186.22) for each count. As to counts 5, 18, 19, the court imposed a consecutive term of 25 yearsto life (Pen. Code, § 12022.53, subd. (d)) and ordered the remaining weapon enhancement (Pen. Code, § 12022.53, subd. (c)) stayed. As to counts 6, 7, 20-24, the court imposed a consecutive term of 20 years to life (Pen. Code, § 12022.53, subd. (c)). Determinate Terms Count 8 — The court selected this count as the principal determinate term. The court found aggravating circumstances in appellant’s prior record of conviction and in evidence appellant is a danger to society. The court imposed the term of 7 years (Pen. Code, § 246) doubled to 14 years by appellant’s prior strike (Pen. Code, § 667, subds. (b)-(i)) and a consecutive term of 20 years (Pen. Code, § 12022.53, subd. (c)) plus 10 years (Pen. Code, § 186.22, subd. (b)(1)). 15 Count 9 — The court stayed the sentence for felon in possession offirearm used in committing counts 4-8 (Pen. Code, §§ 654, 12021, subd.(a)). Count 12 — The court stayed the sentence for robbery of the victim in count 11 (Pen. Code, §§ 211, 654.) Count 13 — The court stayed the sentence for felon in possession of firearm used in committing count 11 (Pen. Code, §§ 654, 12021, subd.(a)). Count 17 — The court found the arson of property of the victim in count 11 involved a separate intent and objective and therefore deserving of consecutive sentencing and imposed a term of 16 months, calculated as one-third of the midterm of two years (or eight months) doubled dueto the priorstrike. (Pen. Code, §§ 451, subd.(d)), 654.) Counts 26, 27 — The court imposed the term of two years consecutive for each violation of assault with a semiautomatic firearm, calculated as one-third the midterm of six years doubled due to the prior strike. (Pen. Code, § 245, subd.(b)). Counts 28-31, 33 — The court imposed the term ofthree years four months consecutive for each violation of false imprisonment, calculated as one-third of the midterm of five years doubled dueto the prior strike. (Pen. Code, § 210.5.) Count 34 — The court stayed the sentence for felon in possession offirearm used in committing counts 26-31, 33. (Pen. Code, §§ 654, 12021, subd.(a).) Count 37 — The court imposed the term of two years consecutive for the custodial possession of a shank, calculated as one-third 16 the midterm of three years doubled dueto theprior strike. (Pen. Code, §§ 654, 4502, subd.(a).) Count 48 — The court stayed the sentence for the false imprisonmentof the victim of the assault with firearm charge in count 26. (Pen. Code, § 654.) The court imposed the consecutive term of five years for the serious felony prior conviction (Pen. Code, § 667, subd. (a)(1)) and a restitution fine of $200 (Pen. Code, § 1202.4). The court noted that all of the counts involved separate victims and/or separate intents and objectives and ordered all of the sentences to be served consecutively. (18CT 4775, 4842; 14RT 3254-3267.) 17 STATEMENT OF FACTS” THE PROSECUTION’S GUILT PHASE EVIDENCE A. The Diaz and Gonzales Crimes” Brothers John Diaz and Paul Gonzales lived on Merced Street in an area of Baldwin Park claimed by gangs. Diaz was a member of a Monrovia gang and had “Monrovia” tattooed above his right knee. Gonzales was not a gang member. Sometime around midnight on April 11, 2000, Diaz and Gonzales stopped briefly at a Circle K store on their way home. (6RT 1613, 1636, 1646-1647.) They were seen there by Baldwin Park Police Detective Ernie Collaso, who was seated in his car in the store’s parking lot. (6RT 1624-1626.) The brothers had one bike between them. Whentheyleft the Circle K, Diaz rode on the handlebars while Gonzales pedaled. At the 8 The Statement of Facts includes descriptions of events that resulted in charges against appellant that ended in conviction, acquittal, or mistrial following the jury’s declaration of deadlock, as well as of events or incidents pertaining to codefendant Flores alone. Accompanying footnotes describe the outcome of charged events that did not result in convictions. ° At the close of the prosecution’s case, the trial court amended the charging document to name appellant as a defendant in counts 42 and 43. As amended, count 42 charged appellant and Flores with the murder of John Diaz attended by weapon and gang enhancements and with the special circumstance of shooting from a motor vehicle. Count 43, as amended, charged appellant and Flores with the attempted willful, deliberate, and premeditated murder of Paul Gonzales. (12RT 2785-2786.) The jury convicted appellant of the first degree murder of Diaz and found the gang enhancement and special circumstance to be true. (17CT 4569; 14RT 3056-3057.) The trial court declared a mistrial on the charge and enhancementsrelated to Paul Gonzales after the jury declared a deadlock as to count 43. (17CT 4574; 14RT 3059-3060, 3080-3082.) 18 Merced Street intersection, Gonzales and Diaz crossed in front of a black sport utility vehicle (SUV) and continued down Merced Street. The black SUV drove past them, made a U-turn, and drove past them once more. Gonzales continued to pedal toward home. (6RT 1637-1639.) The SUV made another U-turn. Whenit returned, Gonzales saw that it was occupied by a passenger in addition to the driver. The passenger yelled, “Where you from?” Gunfire erupted from the SUV. Gonzales jumped off the bike and took cover behind a car. (6RT 1640- 1643.) When the SUV sped off, Diaz told Gonzales, “Call the ambulance, fool,” before falling to the ground. Gonzales placed a sweatshirt under Diaz’s head and ran for help. (6RT 1646.) At the sound of gunshots, Officer Collaso, who wasstill in his police car in the Circle K parking lot, drove in the direction of Merced Street. Along the way, he received a radio call about a gunshot victim on Merced Street. When Collaso arrived, Diaz was lying face down on the lawn, but still breathing. Collaso called for paramedics. Diaz was pronounced deadat the hospital. (6RT 1628-1630.) Right after the shooting, Gonzales told police the shooter was 18 to 22 years old, light-complected, with a fade haircut. (6RT 1662, 1669.) Twoyearsafter that, in June 2002, Gonzales identified Flores as the shooterby circling his picture in a six-pack photo lineup. (6RT 1667, 1673, 1680-1681.) Five years later, at trial, Gonzales looked at Flores, who was then 34 years old, and identified him as the passenger and shooter. Gonzales made no identification of appellant. (6RT 1649-1650, 1675, 1684.) 19 An autopsy revealed that Diaz, 23 years old, had been shot three times. Two bullets penetrated the abdominalcavity, perforating the liver, vena cava, aorta, and stomach, and were deemed fatal; the third bullet penetrated the urinary bladder and was considered life-threatening. (ORT 1601-1603, 1613.) The forensic pathologist recovered one projectile from the chest area, which was turned over to police. (6RT 1603, 7RT 1701.) At the sceneof the shooting, police recovered five expended 9 millimeter shell casings. All five casings were head-stamped “BMC.” (7RT 1696.) Firearms analysis of the five “BMC” expended shell casings showed them to have beenfired from a single 9 millimeter firearm. (12RT 2717.) Firearms analysis of the coroner’s bullet indicated it was a 9 millimeter Luger bullet with eight lands and grooves that could possibly match a pistol of Lorcin manufacture. (12RT 2717-2718.) Baldwin Park Detective David Reynoso testified as the prosecution’s gang expert. Reynoso, who had had field contacts with both appellant and Flores, described both men as self-admitted members ofthe Eastside Bolen Parque (ESBP) gang,a territorial Hispanic gang with roots in Baldwin Park. (1IRT 2542-2546, 2549-2550, 2557-2558.) According to Reynoso, ESBP committed crimes ranging from vandalism to murder. Many of its members committed violent crimes for the benefit of, at the direction of, and to promote the reputation of ESBP.*” (1IRT 2547-2548.) 30 The trial court admonished the jury that evidence that ESBP committed a variety of serious crimes was limited in use to proving the gang enhancement andnotto be used to prove the guilt or innocence of the defendants. (11RT 2546.) 20 Reynoso said Flores’ allegiance to ESBP was memorialized in his tattoos: “Laro Este Bolen Park” (Eastside Bolen Park) and “ESBP.” (1IRT 2550-2552, 2588.) Appellant also had body tattoos: “Bolen,” “ESBP,” “ES” and “BP,” and on his forehead above his eyebrows: “Eastside Bolen Parque.” (11RT 2557-2558, 2566.) Reynosotestified to his opinion that shots were fired at Diaz and Gonzales for the benefit of the ESBP gang within the meaning of Penal Code section 186.22. Diaz was a memberof a rival Monrovia Hispanic gang with tattoos on his body and was dealt with severely for that reason. Reynoso listened to the recorded statements’ the defendants madeto the trial prosecutor Deputy District Attorney Darren Levine and lead investigating officer Thomas Kerfoot and came to the opinion that the defendants perceived Diaz and Gonzales to be rival gang members in territory claimed by ESBP. Reynoso concluded the shooting was committed to promote the gang’s reputation and thus was committed for the benefit of the gang. (1IRT 2559-2563.) st The prosecution played redacted versions of the recorded statements in its case-in-chief. Summaries of the interview statements are set forth below in SubsectionI. 21 B. The Madrigal and Gutierrez Crimes” On the night of May 25, 2000, Arturo Madrigal and Fernando Gutierrez were seated in Madrigal’s Chevrolet Blazer in Baldwin Park. Madrigal was attempting to park the Blazer near the corner of Rexwood and Maine whena car stopped alongside the Blazer’s driver’s side door. (8RT 2028-2029.) Someone from the car asked, “Where you from?” Gutierrez answered, “We’re not from nowhere.” (8RT 2030-2031.) Gutierrez saw the flash from a gun and dove under the dashboard. When the shooting stopped, Gutierrez could hear blood dripping from Madrigal. Gutierrez got out of the car and ran for help. (8RT 2032-2033.) Gutierrez told police that night there were four male Hispanics between the ages of 20 to 25 in the car, all with shaved heads. He said the passenger did the shooting and that he was unable to identify anyone. (8RT 2035-2036.) 32 As occurred with the Diaz and Gonzales counts, supra, at the close of the prosecution’s case, the trial court ordered the amended information further amended to include appellant as a named defendantin counts 45 and 46. As amended, appellant was charged in count 45 with the murder of Arturo Madrigal with weapon and gang enhancements and the special circumstance allegation of shooting from a motor vehicle. Count 46, as amended, charged appellant with the attempted willful, deliberate, and premeditated murder of Fernando Gutierrez with weapon and gang enhancements. (12RT 2785-2786.) The jury convicted appellant of the first degree murder of Madrigal and found the gang benefit enhancement and the shooting from motor vehicle special circumstance to be true. (17CT 4570; 14RT 3057-3058.) The jury also convicted appellant of the attempted premeditated murder of Gutierrez and found the gang benefit enhancementto be true. (17CT 4571; 14RT 3059.) 22 Gutierrez testified that neither he nor Madrigal were members of a gang. (8RT 2034.) The forensic pathologist who performed the autopsy recovered a bullet from Madrigal’s skull and determined that he waskilled by a gunshot woundto the head that severed the brain stem. (7RT 1739- 1740.) Madrigal also sustained a nonfatal grazing wound to one knee. (7RT 1743.) Police recovered four expended nine millimeter Luger cartridge casings and two expendedbullets from the area near the Blazer and one expended bullet from the inside the driver’s door. (7RT 1714- 1717, 1728.) Trajectory rods inserted into three bullet holes found on the driver’s side of the Blazer showed that the shots came from outside the Blazer. (7RT 1726.) Firearms analysis showed the four expended nine millimeter cartridge cases were fired from a single firearm. The coroner’s bullet was one of four coroner’s bullets in this case fired from a single firearm. These coroners’ bullets showed six lands and grooves with a right hand twist and would be consistent with having been fired from a nine millimeter Smith & Wesson semiautomatic pistol. (12RT 2721.) Prosecution gang expert David Reynosotestified that the shootings of Madrigal and Gutierrez were committed for the benefit of the gang. Madrigal’s head was shaved, creating the perception that he was a rival gang memberpresent in ESBPterritory in an act of disrespect. The shooting contributed to the gang’s notoriety and so was committed for the benefit of the gang. (11RT 2563-2565.) 23 C. The Paul Ponce Crimes” Around 4:45 a.m. on the morning of June 7, 2000, Katherine Shafer and Paul Ponce were in the garage of Ponce’s Victorville home when a knock sounded on the front door. The garage monitor for the home’s closed circuit security system displayed an unknowncarin front of the house. Ponce left the garage to answer the front door. (7RT 1805- 1808.) About ten seconds later, Shafer heard a burst of gunfire, the shots coming one after another. Shafer hid. She heard no voices or footsteps and saw no one. She did not look again at the closed circuit monitor. After the silence had lasted for a few minutes, Shafer entered the house where she found Ponce’s body lying near the living room coffee table. He was not breathing. Shafer called the police. (7RT 1809-1816, 1830.) The parties stipulated as part of appellant’s affirmative defense to the prosecution’s guilt phase case that Katherine Shafer was interviewed by San Bernardino sheriff's deputy William Holland on June 7, 2000. During this interview, Shafer told Holland that she heard a vehicle drive up and then saw the vehicle pull into the home’s driveway on the garage video monitor, which was linked to a camera at the front of the residence. A male subject then cameto the front door and began to ring the 33 Appellant was charged with the murder of Paul Ponce (count 1) and with being a felon in possession of a semiautomatic firearm (count 2). Gang, weapon, and special circumstance enhancements (lying in wait; torture; and multiple murder) attended the murder count. The jury returned verdicts of not guilty in both counts 1 and 2. (17CT 4541, 4542, 14RT 3035.) 24 doorbell over and over. Paul Ponce then left the garage and wentto the front door. Almost immediately after the front door opened, Shafer heard several very loud and distinct gunshots coming from that area. (13RT 2854.) At trial, Shafer testified on cross-examination that she did nottell deputy Holland that she saw on the video monitor a lone male subject come to the front door and ring the doorbell over and over. (7RT 1821.) During their investigation of Ponce’s home, San Bernardino sheriff's detectives recovered expended nine millimeter and .22 caliber shell casings. The expended .22 caliber casings appeared to be from solid projectile firing, but the detectives also found .22 caliber birdshot projectiles stuck in the living room walls. (7RT 1838-1843.) A search of the home yielded less than one gram of methamphetamine and one-eighth ounce of a substance resembling either methamphetamine or cocaine, the latter quantity being sufficient to suggest that drugs were being sold from the house. Officers also found a loaded .44 caliber magnum revolver in the drawer of the coffee table and a .22 caliber revolver in a planter near the front door. (7RT 1854-1855.) Investigators subsequently learned that Ponce was a member of the Eastside Bolen gang whose moniker was “Vago.””“ (7RT 1851.) Forensic pathologist Frank Sheridan performed the autopsy upon Ponce’s body and assigned multiple gunshot wounds as the cause of death. Dr. Sheridan estimated that Ponce died within two or three minutes of being shot. (7RT 1793-1795.) 34 1800.) The word “Bolen” was tattooed on Ponce’s back. (7RT 25 Dr. Sheridan identified nine entry wounds, four of which were fatal. (7RT 1786-1789.) A deposit of soot around one entry wound near the right ear indicated that the gun was fired from a distance of not more than one foot. (7RT 1765-1767.) Dr. Sheridan recovered projectiles showing that Ponce had been shot with three different types of ammunition — nine millimeter, .22 caliber, and birdshotpellets, with the primary damage inflicted by the nine millimeter slugs. (7RT 1796, 1801.) D. The Ledford Drive Crimes” In June 2000, Robert Perez lived in a house on Ledford Drive in a Baldwin Park neighborhood ruled by the ESBP gang. Perez was always vigilant while outdoors because one of his relatives had been murdered there. (8RT 1895, 1898.) . Around 10:00 on the morning of June 19, Perez and his friends George Flores, Art Martinez, and Joe Mayorquin were in the front yard of the Ledford Drive residence. Earlier in the morning, they hadfired guns at the shooting range, but now the guns were in a bag in the back %8 Appellant was charged with the murder of George Flores (count 4), with the attempted willful, deliberate, premeditated murders of Joe Mayorquin, Robert Perez, Jr., and Art Martinez (counts 5-7, respectively), with shooting at an inhabited dwelling house (count 8), and with being a felon in possession of a firearm (count 9). Gang and weapon enhancements attended counts 4 through 8. The jury convicted appellant of the charges, found the murder to be of the first degree, the attempted murders to be willful, deliberate, and premeditated, and the weapon and gang enhancementsto be true. (17CT 4543-4548; 14RT 3035-3041.) 26 yard.*° Noneof the four men was armed. (8RT 1897.) Perez was not a gang member; twoof his friends were inactive members of the 22nd Street gang. (8RT 1916-1917.) Perez took note of a Chevrolet Monte Carlo driving past because the Monte Carlo’s occupants were staring at them. A minutelater, the Monte Carlo returned,this time followed by a tan-colored Toyota. The driver and passenger in the Monte Carlo were both male. The Toyota was driven by a female; the front passenger was male. Perez called out to his friends to move to the back yard. Perez and Martinez walked up the driveway, but George Flores and Mayorquin wanted to see what was going on and stayed on the sidewalk. (8RT 1898-1902.) The Monte Carlo stopped. Attrial, Perez identified appellant as the man who stepped out from the Monte Carlo with a black pistol in his hand and who walked up to George Flores. Perez heard George Flores say that no one wasdisrespecting the neighborhood or them. (8RT 1902-1904.) Appellant asked, “Who’s your homeboy?” (8RT 1920.) Atthat point, Martinez, who had been squatting in front of a Cadillac parked in the driveway, moved. The movement caught appellant’s attention and appellant fired. Perez jumped for cover in front of a Camaro that was also parkedin the driveway. (8RT 1904.) At trial, Perez identified defendant Joseph Flores as the male seated in the passenger seat of the Toyota. Flores hada tattoo on his neck 36 Although he was interviewed by police on several occasions, Perez never told the police about the guns in the bag until the guns were found. (8RT 1928.) Attrial, he testified that the guns could not have been fired because the group had used up their ammunition at the shooting range earlier in the morning. (8RT 1937.) 27 and was looking at them and smirking. Perez heard him say, “Well, well, what do we have here?” (8RT 1905, 1909.) Perez heard the sound of a rifle slider from Flores’ direction. Flores did not get out of the car. There was nonstop firing for 10 to 15 seconds. The gunshots from Flores’ direction sounded louder than the first gunshot Perez heard. When the firing stopped, there wasa lot of smokein the area of the Toyota. Gunshots from the Toyota continued as the car drove away. Perez never saw the face of the Toyota’s female driver and did not think she fired a gun. (8RT 1906-1910.) Perez got up and checked himself. He had not been injured. He went down to the sidewalk. George Flores lay on his stomach, unmoving, with a wound in his neck. Mayorquin was shot in the leg and asked whether Flores was dead and whether he himself was goingto die. (8RT 1912-1914.) Later, Perez found bullets in his house and garage. His father, his sister, and two young nieces were in the house. (8RT 1916.) An autopsy showed that George Flores died as the result of a fatal gunshot woundthat entered his back and perforated his lung, carotid artery, and jugular vein. A second, non-fatal, gunshot wound also entered his back and emergedathis left shoulder. (8RT 1864-1865.) Both wounds left large gaping exit holes indicating the bullets were fired from a high- powered weapon. (8RT 1873.) The parties stipulated that Mayorquin was surgically treated for a gunshot wound to the upper right arm and the upper left and right thighs. A projectile was recovered from the thigh area and turned over to Baldwin Park police. (LORT 2300-2301.) 28 Police found two distinct groupings of ballistics evidence at the scene — one grouping of expended .32 caliber rifle casings and a separate grouping of nine millimeter casings — leading to the conclusion two weapons and two shooters, both basically stationary, were involved in the shooting. (8RT 1888-1890.) Both the Cadillac and Camaro in the driveway were hit by gunshots. (89RT 1957.) Police recovered 14 expended nine millimeter cartridge casings and 16 expended 7.62 x 39 millimeter cartridge casings generally associated with AK-47assaultrifles, and four projectiles from the Ledford Drive shooting scene. (8RT 1961-1964, 1981.) Around 11:30 p.m. on June 18, two days before the Ledford Drive shooting, Flores and appellant asked Katrina Barber®’ for a ride. At the time, Barber was driving a Toyota Corolla she had stolen. Thetrio drove around Baldwin Park and Alhambra for a while until the Corolla broke down. Barber then stole a Toyota Cressida and drove Flores and appellant to the homeof Flores’s mother in Hemet. It was 3:00 when they arrived. (8RT 2043-2044.) The next morning, Flores and appellant carried two long black bags to the car. One bag was filled with clothes; the other with approximately ten guns. (8RT 2045-2048.) Barber drove Flores and appellant to the La Puente home of Luis Reyes. They showered, watched 7 The trial court instructed the jury that Barber was an accomplice as a matter of law in counts 4-12 and her testimony subject to the rule requiring corroboration. (17CT 4517.) At the time of trial, Barber had entered a plea to shooting at an inhabited dwelling and had been sentencedto state prison for five years. (SRT 2044; 9RT 2119.) 29 television, and used crystal methamphetamine, which Reyes provided. (8RT 2049.) Whenthey left, Flores, who did not drive, rode with Barberin the Toyota Cressida. Appellant rode with Reyes in Reyes’s Chevrolet Monte Carlo. The cars drove in tandem to a hotel parking lot. Reyes stopped his car next to a car that appeared to have been waiting for him. Barber saw something passed between Reyes and the other driver. Flores told her the car looked like an FBI car. (8RT 2050-2052.) The Monte Carlo and the Cressida returned to the freeway and the cars then drove to Baldwin Park. Barber became separated from the Monte Carlo when the cars got off the freeway. She began to drive toward her mother’s house. On Ledford Drive, she and Flores passed by a group of guys sitting on the wall. Flores asked her if she knew them and when she said no,he told her to “Flip a bitch,” meaning to make a U-turn. She did and then saw that the Monte Carlo was once more with them. (8RT 2053-2055.) Barber stopped at the house where the guys were on the wall. The Monte Carlo also stopped. Flores said, “Well, well, well, what do we have here?” (8RT 2055-2057.) Amezcuagot out of the Monte Carlo with a pistol and started shooting at the people in front of the house. Floresalso fired a gun he later told her was an AK-47. The gunfire lasted for a long time. (8RT 2058- 2059.) Flores stopped shooting and handed Barber a .22. He told her it was hers. Barberfired three or four times in the direction of the house, but not at the people. Her gun was a semiautomatic. Flores continued shooting as she drove away. Barber saw someone whowasattempting to get to the 30 front door of the house get shot and fall to the porch floor. (8RT 2062- 2063.) After the shooting, Barber told Flores she wanted to go to her mother’s home. He told her no and that Reyes would drop her off later. The Monte Carlo and the Toyota got back onto the eastbound freeway toward San Bernardino. At Ontario, the Toyota began to shake. Barber took the Vineyard exit, followed by the Monte Carlo, and turned into the driveway of a business. (8RT 2063-2065.) A latent print lifted from the rearview mirror of the Toyota Cressida used in the Ledford Drive shooting was matchedto appellant’s left thumb. (8RT 1944-1949.) Fourteen cartridge casings recovered from the area near the driveway of the Ledford Drive scene were later matched to a nine millimeter Ruger linked to appellant at the Santa Monica Pier shooting, which appellant describes below. (12RT 2722.) Prosecution gang expert David Reynoso testified to his opinion that the Ledford Drive shooting was committed for the benefit of the gang because it was disrespectful for a member of another gang to live openly in ESBPterritory. (11RT 2569-2571.) 31 E. The Luis Reyes Crimes”™ Katrina Barber’® testified that when the Monte Carlo and the Cressida reached Ontario following the Ledford Drive shooting on June 19, 2000, she exited the freeway and drovetheailing Toyota Cressida down the driveway of an Ontario business. Barber stopped the Cressida. The Monte Carlo also stopped. As she was gathering her things to move them to the Monte Carlo, Barber heard ten shots from the Monte Carlo. Sh e looked over and saw appellant shooting Reyes. (8RT 2068.) Flores asked appellant, “What are you doing that here for?” Flores and appellant pulled Reyes out from the driver’s seat. Barber co uld hear Reyes gagging and choking. He was bleeding a lot. (8RT 2069.) Barber, Flores, and appellant got into the Monte Carlo. Flores noticed that Reyes’ right leg was still caught in the car and told Barberto just run him over. (8RT 2072.) Barber got back onto the freeway and drove to Los Angeles. They stopped first at appellant’s cousin’s workplace and then went to the cousin’s home in Pasadena. They took showers; Flores ironed. They ate food from Carl’s Junior. (8RT 2073.) 38 Appellant was charged with the murder (count 11), robbery (count 12), and arson of the property (count 17) of Luis Reyes, and of be ing a felon in possessionofa firearm in the commission of these crimes (count 13). Counts 11 and 12 were attended by gang and weapon enhancem ents. The jury convicted appellant of the charged crimes, determined the m urder to be ofthe first degree and the robbery of the second degree and fou nd the gang and weapon enhancementsto betrue. (17CT 4549-4552; 14RT 30 42- 3045.) %° Katrina Barber was prosecuted in San Bernardino as an accessory to the murder of Luis Reyes and was sentenced to three years in state prison. (9RT 2141.) 32 Whenthey left, Barber, Flores, and appellant drove to the Hemet home of Flores’ mother. The black bag with the guns was with them. Flores took the gunsinto his mother’s home. Barber told Flores she wanted to go home,but hesaid she could not leave. They stayed there for three or four days. (8RT 2075-2076.) Andrew Quiroz cameacross Reyes’s body on the roadway on Guasti Roadandstopped to give help. Whenhe approached Reyes, hesaw three circular bloodstains on Reyes’s shirt. Reyes made gurgling sounds and reacted to Quiroz’s voice. (ORT 2160-2164.) An autopsyrevealed that Reyes sustained 19 gunshot wounds to the body, some of which were caused when the same bullet entered, exited, and entered the body once more. (11RT 2639-2640.) Some of the wounds were fatal; some potentially fatal; some were defensive. (1IRT 2642-2661.) Soot or stippling on the body indicated the distance from the gun to the body was roughly twofeet or less. (1IRT 2673.) Police ran the license plate numberof the abandoned Cressida and learned the car had been stolen in Alhambra. They recovered two .22 caliber shell casings and three 7.62 x 39 shell casings from the Cressida’s interior. (QRT 2182-2184.) Police also found a car paymentreceipt on Reyes and learned of the black Monte Carlo by checking with the Department of Motor Vehicles. (9RT 2179.) Ontario police issued a Department ofJustice stop on the Monte Carlo, indicating the car was involved in a murder investigation and that its occupants were armed and dangerous. (ORT 2188.) 33 At the Guasti Road crime scene, police recovered a projectile from under Reyes’s body andlater, at the autopsy, were given a medium caliber copper-jacketed projectile and expended bullet from Reyes’s chest. (ORT 2177, 2185.) Firearms analysis indicated that the bullets were consistent with having been fired from a nine millimeter Ruger recovered in the Santa Monica Pier arcade and linked to appellant, as described below. (12RT 2756, 2759.) Police also located expended nine millimeter shell casings in the weeds on the roadside. (QRT 2175.) Carina Renteria*® was Flores’s girlfriend in June 2000. On the night of June 24, 2000, Renteria met with Flores and appellant at her sister’s house. She was driving her purple Honda Civic. Flores got into her car with a big black duffle bag. Appellant was driving a Monte Carlo. (ORT 2193-2195.) Both cars, traveling in tandem, stopped at a 7-Eleven for drinks. On leaving, appellant drove out of the parking lot first. He was followed by a sheriff's deputy who had been parkedin the store lot in his marked police unit. Renteria and Flores followed. The three cars got onto the Interstate 10 freeway. (QRT 2196-2199.) Appellant began to increase his speed; the sheriff's deputy followed directly behind. Suddenly, as the cars approached the Sierra Highway exit, appellant cut in front of a diesel truck and exited the freeway. Thesheriffs deputy did not. RT 2204-2206.) “0 Renteria entered pleas to arson and accessory. (9RT 2222- 2223.) The trial court instructed the jury that Renteria was an accomplice as a matter of law in counts 14-17 and her testimony subject to the rule requiring corroboration. (17CT 4517.) 34 Flores told Renteria to accelerate and catch up with the deputy. When she did, Flores rolled downhis window andlevered the top half of his body out of the car. Flores began shooting at the deputy as Renteria drove the Hondapastthe driver’s side of the police unit.“! Renteria got off the freeway at Citrus and drove to the home of Flores’s mother in Hemet. A few minutes after they arrived, appellant pulled up in the Monte Carlo. (QRT 2210.) Later, in a discussion with Flores’s mother, appellant said the car was “too hot.” The decision was made to burn the car. (RT 2212- 2213.) Flores had taken Renteria’s car keys from her so she wouldn’t leave. He now returned them so Renteria and Flores’s mother could go to the gas stationto fill the red plastic gas can Renteria kept in her car. When they returned to the house with the gas, Flores and appellant put the gas can into the Monte Carlo. Then, both cars traveled in tandem to an area where there was just one house on the corner. Flores and appellant were in the 4“ San Bernardino Sheriff's deputy Andrew Putneytestified that he followed a dark-coloredcar thatleft the 7-Elevenat a high rate of speed until the car made an abrupt hard right in front of him and took the Sierra Highway exit. (QRT 2227-2231.) Putney was talking with dispatch when a gunshothit his driver’s side front tire. He looked and saw a male Hispanic sitting in the door frame of a dark-colored compact car and firing rounds at him. Putney heard about 15 gunshots amid the sounds of bullets hitting his car before his car began to decelerate and the shooter’s car moved on. (ORT 2231-2233.) Six bullet impact areas were found on the Tahoethat Putney was driving. (ORT 2250.) Asthe result of these events, Flores was charged with and convicted of the crimes of attempted willful, deliberate, premeditated murderof a peace officer; of assault upon a peaceofficer with a semiautomatic firearm; and of being a felon in possession of a firearm (counts 14-16, respectively). (7CT 1766-1767; 17CT 4585-4588.) 35 Monte Carlo. Flores’ mother rode with Renteria. Renteria parked and waited until Flores and appellant got into her car. Then she drove back to Flores’s mother’s home. The next morning Renteria left and returned to her sister’s home. (QRT 2214-2218.) On June 25, 2000, at 2:58 a.m., firefighters responded to a vehicle fire on Seventh Street in San Jacinto, Riverside County. The fire was concentrated in the Monte Carlo’s passenger compartment and engine. No one wasaround and the police were called because the car was thought to be possibly stolen. (ORT 2303-2306.) San Jacinto police ran the Monte Carlo’s license plate number and contacted Ontario Police. (10RT 2307- 2310.) Frank Huddleston, the arson investigator for the Ontario Fire Department, concluded the fire began in the Monte Carlo’s interior and excavated there. He found a hard piece of red plastic he recognized as a gas can and noticed a strong odor of gas. He concluded the fire was intentionally set. (1ORT 2312-2319.) During the investigation that followed, a forensic technician found severalshells, bullets, and cartridge casings in the Monte Carlo. (1ORT 2320.) Prosecution gang expert David Reynosotestified that Luis Reyes was an ESBP gang member. At the time Reyes was killed, police were aware that Reyes was considered to be a “rat” because he had cooperated with the police. Reyes came forward to police officers who regarded him as a murder suspect and led them to the house of another gang member where Reyes asked people to give him an alibi. Reynoso believed that Reyes was killed because his cooperation with the police was disrespectful to the gang and his killing promoted the reputation of the gang. (11RT 2572, 2607.) 36 Renteria later described the events of June 24 and 25 to Andre Acevedo, her K-Mart coworker. She was later contacted by Fontana sheriff's deputies. (QRT 2219.) On July 3, 2000, Renteria gave Flores’s pager number to police investigators from San Bernardino County. The investigators used the numberto page Flores. (QRT 2219.) F. The Santa Monica Pier Crimes” Around midnight on July 3, 2000, Santa Monica Pier was crowded with people. Santa Monica Police Officer Robert Martinez was on the pier when dispatch advised him that a triple homicide suspect who had also shot at police officers had just made a phone call from oneofthe pier’s public telephones. Martinez went to the location of the pay phones and “ Appellant was charged and convicted in counts 18-24 with the attempted willful, deliberate, and premeditated murders of police officers Christina Coria, James Hirt, Steven Wong, Michael Von Achen, Michael Braaten, Robert Martinez, and Renaldi Thruston. The jury returned true findings to attendant weapon enhancements. (17CT 4553- 4559: 14RT 3045-3052.) Appellant was also charged and convicted in counts 28-31, 33, and 48 of the false imprisonment of hostages Bonnie Stone, Mike Lopez, Lorna Cass, Paul Hoffman, Sabino Perez, and Cathy Yang, respectively. (17CT 4562-4566; 14RT 3053-3055.) Appellant was charged and convicted in courts 26 and 27 of the assault with a firearm upon Cathy Yang and Jing Huali. The jury additionally found that appellant inflicted great bodily harm upon Jing Huali. (17CT 4561; 14RT 3053, 3059.) The jury convicted appellant in count 34 of being a felon in the possession of a semiautomatic firearm in the commission of the Santa MonicaPier offenses. (17CT 4567; 14RT 3055.) The trial court dismissed allegations that appellant kidnapped Cathy Yang (Count 25); that appellant falsely imprisoned hostage Jose Lopez Melchor (Count 32); and gang benefit allegations as to these counts (Pen. Code, § 1118.1; 12RT 2766, 2781.) 37 confirmedthe particular pay phone’s number with dispatch to verify he was at the right location. (LORT 2366-2367.) Within minutes, additional officers arrived. Together, the officers began walking toward the end ofthe pier. Martinez spotted Flores and appellant near the east door of the arcade. Flores matched the description of a small Hispanic male of thin build. Flores continued walking toward the officers, but appellant turned and entered the arcade. (1ORT 2371-2372.) Oneofthe officers began talking to Flores. Martinez circled behind Flores and saw an identifying tattoo on his neck. Martinez put his hands on Flores to pat him down for weapons. Flores turned as if to get away. Martinez wrapped his arms around Flores and both men wentto the pier deck. Flores resisted, but after Officer Michael Von Achen had his police dog bite Flores’s leg, Flores was subdued, cuffed, and searched. Police removed a 9 millimeter semiautomatic AP9 handgun with a 30- round capacity from the small of Flores’s back.’ (1ORT 2373-2376, 2483; 12RT 2714.) Once Flores was taken into custody, Martinez notified the other officers that Flores had been in the company of a second man, who ® Flores was taken to a hospital for treatment of the dog bite injuries to his leg. In the treatment room,Flores’ hands were cuffed to the bedrails on either side. Officer Michael Cabrera saw Flores moving around. Flores stuck his hand into the pocket of his shorts. Cabrera removed Flores’ hand and recovered a fully loaded, small ca liber, semiautomatic pistol with a live round chambered (count 35). (AIRT 2530- 2535.) Firearms analysis of the .25 caliber Colt semiautomatic recovered from Flores at the hospital showed the gun had a capacity of six rounds in the magazine and was operable. (12RT 2715.) Asked to identify Flores at trial, Cabrera pointed to appellant. (IRT 2531-2532.) 38 had walked into the arcade. The officers moved toward the arcade as arcade workers began rolling down the northeast arcade doors in preparation for closing. That left the southern arcade doors as the only pointof exit. (LORT 2377.) Martinez positioned himself to see those exiting the southern arcade doors. After 30 to 40 people left, Martinez saw appellant wearing the same blue jacket he had onearlier. Martinez yelled out that the officers should watch the “bald guy.” Appellant’s hands suddenly came up and he grabbed a womanlater identified as Cathy Yang around the neck and held her in front of him. Appellant had a gun in his hand, which he turned so that it was parallel to the ground. Appellant’s gun began tracking Martinez’s movement. Martinez heard gunshots. (1ORT 2377-2380, 2341.) Martinez heard Officer Christina Coria yell, “I’ve been hit,” and turnedto see herfalling down to the pier deck. Martinez picked her up and carried her around the building out of the line of fire. He heard additional gunshots but stayed with Coria until she was transported to the hospital. (LORT 2381-2384.) Police Sergeant Michael Braaten was standing near Martinez when he saw appellant grab Cathy Yang and holdher in front of him as a shield. (10RT 2338-2341.) Simultaneously, appellant pointed a gun at Braaten. Braaten pivoted and moved behind a pillar. The shooting stopped. Braaten peered around the pillar, saw appellant’s handgun, and heard gunshots once more. (LORT 2341-2344.) Officer James Hirt heard someoneyell, “He has a gun,” and then saw Coria cradle her left arm and fall to the ground. Hirt moved 39 behind a trash can and felt a jolt through his leg. He looked down and realized he was bleeding. (1ORT 2411-2418.) Hirt looked up and saw appellant standing with an arm around a woman’s neck. Appellant pointed a handgun at him and shot. (1ORT 2419-2422, 2426.) Hirt sustained a through-and-through shot to his left knee that nicked an artery. (1ORT 24231) Officer Michael Von Achen wasbehinda pillar when he saw appellant shooting at officers. Bullet impacts hit the front of the pillar. (10RT 2489.) Officer Steven Wong heard 10 to 15 gunshots and saw bullet debris bounding off the wall he was behind. (10RT 2500.) Wong ran in the direction of Sergeant Braaten, heard more gunshots, and felt something hit his right hip. Wong looked toward the arcade door and saw a large Hispanic male holding a woman in front of him as a shield. (LORT 2502- 2503.) Officer Renaldi Thruston was standing with Officer Coria before she was shot. Thruston heard gunshots and took cover nearthe side of the building. When asked attrial to identify the shooter, Thruston identified Flores as the male he sawfiring five or six shots at him. He was not hit. (LIRT 2524-2528.) The bullet that struck Coria’s arm broke her humerus and radius. At the time oftrial, she had had four surgeries and had suffered some permanent loss of movement. (1ORT 2472-2475.) She did not see whoshot her. (LORT 2478.) Jing Huali was leaving the arcade when she heard gunshots and felt something in her leg. She saw appellant holding someone with his 40 left hand and pointing a weaponat her with his right hand. She wastreated at the hospital for an injury to her upperleft leg. (LIRT 2519-2521.) Lorna Cass and Paul Hoffman were in the arcade with their children when they heard the sound of gunshots and took cover. Cass saw a person holding an Asian woman hostage. The person appeared scared and panicky himself. He asked them to move the arcade machines closer together to form a barricade and askedall of the people to come together so he could see everyone. Herepeatedly told Cass that he was not going to hurt her or her children. Neither she nor Paul Hoffman was allowed to leave. ((ORT 2428-2431.) Bonnie Stone and Michael Lopez were also in the arcade when the shooting occurred. Appellant held an Asian woman hostage. He had the men move the vending machines to form a barricade and told people to sit inside the barricaded area. Appellant handed Lopez two magazines andtold him to load them with bullets. Appellant never said she and Lopez could not leave, but she assumed they could not because appellant was armed. (1ORT 2432-2436, 2438-2442.) After a while, appellant told the group, “I don’t feel right holding you guys here. You guys can leave if you want.” Appellant never expressly told them not to leave; they just didn’t feel they should. (JORT 2442-2443.) Appellant released a person who washyperventilating. (JORT 2453.) Lopez did not feel in much danger from appellant. The hostage situation lasted about five hours. (1ORT 2446, 3453.) Sabino Cordova was at work at the arcade counter when he heard gunshots. He looked toward the sound of gunfire and saw a man with his arm around a woman’s neck and a gun in his hand. Whenaskedat 41 trial to identify the man, Cordova pointed to Flores. The man pointed a gun at him and told him to sit down. After about 3 % hours, Cordova asked for permission to go to the bathroom. On his way back, Cordova gestured to the police and jumped out through a window. (1ORT 2455-2462.) Twelve expended cartridge cases and three bullet fragments were recovered from the area around the arcade and matchedto a nine millimeter Ruger semiautomatic pistol found in an alcove near the arcade vending machines that had been moved to form a barricade. The Ruger was therefore fired at least 12 times on the Santa Monica Pier. (12RT 2697-2699, 2707-2709.) Three magazines, each with a capacity of 15 rounds, were also recovered from the arcade. (12RT 2700.) G. Custodial Possession of Shank“ On January 29, 2001, jailer Armando Meneses searched appellant’s cell in Module 2904, Men’s Central Jail, and discovered a shank under the rim ofthe toilet. The shank measured 5 % inches long by 1 inch wide. One end was sharpened into a point and the other end covered in cloth. (QRT 2149.) Appellant was the only occupantofthe cell, which was searched before appellant was placed in it. (QRT 2150.) “ Appellant was charged with custodial possession of a shank in counts 37 and 41. The jury convicted appellant in count 37 on the evidence described here. (17CT 4568; 14RT 3056.) Count 41 was dismissed bythe trial court (Pen. Code, § 1118.1). (12RT 2781.) 42 H. The Steve Mattson Crimes On November 2, 2001, Flores and appellant were high security inmates in men’s central jail. Because of that status, whenever they left their cells jailers cuffed their hands behind their backs and then hooked the cuffs to chains around their waist. Around 6:00 p.m., Flores and appellant and other inmates on their row were released from their cells so they could be taken to the visitors’ area. Both defendants simultaneously managedto free themselves from their restraints. Both ran toward inmate Steve Mattson, who was cuffed and waist-chained in the prescribed manner. Flores was the first to attack Mattson, stabbing him with a shank multiple times in the head and body. (8RT 1989.) Jailer Fred Jimenez saw a shank in Flores’s hand. He did not see a shank in appellant’s hand, but did see appellant striking Mattson in a way that led Jimenez to believe appellant had a shank. (8RT 2000.) Flores and appellant continued to kick and stab Mattson, who was cornered against a wall, for 30 to 60 seconds, despite Jimenez’s repeated orders to stop. (8RT 1991-1992.) Mattson received five stab wounds to the stomach and multiple stab woundsto the left rear shoulder. (8RT 1995.) ® Appellant and Flores were charged with the attempted willful, deliberate, premeditated murder of Steve Mattson in count 38 and with the related custodial possession of a weapon (jailhouse shank) in counts 39 (appellant) and 40 (Flores). Gang and great bodily injury enhancements attended the attempted murder charge. (7CT 1779-1780.) The jury declared a deadlock as to counts 38, 39, and 40, and a mistrial was subsequently declared as to those counts. (14RT 3080-3082.) 43 I. The Redacted Versions of the Prosecutor’s Recorded Interviews with Flores and Appellant Heard by the Jury During the period when appellant and Flores were pro per defendants, trial prosecutor Darren Levine met with both defendants on several occasions. Prior to the February 21, 2002, interview, Sheriff's Deputy Daniel Beers placed a digital recording device on a note pad Levine carried and turned it on. Levine took the notepad into an attorney-client meeting areain the jail. Approximately one hourlater, Levine emerged and gave the note pad to Beers, who turned off the recording device. Beers took the device to the laboratory and downloaded its contents onto a compact disk. (P95; 11RT 2623-2624.) A redacted version of the recorded conversation was played for the jury during the prosecution’s case and a transcription (P95a) provided for jurors’ use. (11RT 2675.) During this interview, Flores told Levine about uncharged crimes he had committed between the date of his release from state prison on April 4, 2000, to the date of his arrest on July 4, 2000. In addition to describing events during that time frame for Levine (DPSupplII, SuppCT 50:21°°), Flores told Levine he was informing him of a new murder*’ (DPSuppllI, SuppCT 49:2-3) that took place in Baldwin Park (DPSuppllI, “6 The citation to DPSuppIlI, SuppCT 50:21 is a citation to line 21 of page 50 of the volume marked Death Penalty Supplemental II, Clerk’s Transcript, Volume | of 1 Volume, Pages 1-263. 4 . - 4: ’ When Levine indicated he was unaware of uncharged murders, Flores said, “Have you come close? Okay, uhm, wanna give him another bone. Uhm, uhm — ” Appellant replied, “Yeah.” (DPSuppllI, SuppCT 49:5-7.) But, when Levine asked, “What are you guys talking about,” appellant replied, “Nothing — nothing.” (DPSupplIII, SuppCT 49:11-12.) 44 SuppCT 50:18). The murder victim was “on the handle bars of a bicycle and it was his friend or his brother who was riding him on the bike,” and that person “was never shot but the other one’s dead.” (DPSupplll, SuppCT 49:20-22, 24.) Flores also told Levine “the first one died. The other one watched it, witnessed the whole thing,” and “he could identify because the dude walked up on him after he shot him off the bicycle, bah, bah, bah, two more into him, looked at him. Only wasted five shots with a 9mm, so there’s five casings. I mean, obvious.” (DPSupplll, SuppCT 50:9-10, 12-14.) Later in the interview, Levine asked again about the shooting of the man riding on the handlebars of a bike, and Flores said: “A bike. IU — TI give you a bit more. He was wearing, uh, it was either a light gray or a light blue, and he had his legs sticking out because he didn’t wrinkle his pants.” Flores told Levine that appellant was the driver and added, “[b]ecause as you must know, I don’t like drive a [unintelligible], you know. But it takes too much from me,if I have to drive, how do I shoot?” WhenFlores said that appellant was the driver, appellant laughed andsaid, “Catch me?” (DPSupplIlI, SuppCT 68:5-7, 9-10.) Flores also offered to give Levine information about another murder after their forthcoming trial was completed (DPSupplIII, SuppCT 51:4-5) and made reference to a murder committed by appellant and himself that had already been filed in Los Angeles County and assigned to another prosecutor (DPSuppllII, SuppCT 53:3-4). When Levine asked, “A murder that you guys did,” Flores answered, “Uh-huh,” and appellant said, “Yeah.” (DPSupplll, Supp CT 53:5-7.) Flores said, “We did more murders than you would evenrealize. .. . Seriously.” (DPSupplII, SuppCT 45 60:5, 7.) Flores also told Levine he was going to send someone to the library to obtain clippings of the other murders. (DPSupplll, SuppCT 60:12-17.) At this point, appellant said, “Can we talk about restitution?” (DPSuppIlI, SuppCT 60:21.) Flores said: “Oh, yeah. See, that’s what we wanna do. Okay, we’re gonna get a lot of restitution. We'll give you a murder if drop [sic] ourrestitution, so it’l] only be 200 instead of a whole [unintelligible] of restitution, which we’ll never be able to pay.” (DPSupplIII, SuppCT 60:22-24.) Flores explained that now that he’s “going to death row,” he didn’t “wanna havea lot of restitution because when I buy a TV, they’re gonna make mepayto the victims in [unintelligible] or right up front.” (DPSuppIII, SuppCT 62:9-11.) Flores spoke of the Ledford Drive shooting and asked what happened to the individual who was shot on the porch, stating “the porch was tore up.” (DPSupplIII, SuppCT 69.) When Levine said he thought the defendants were a “good shot” and made reference to the shooting of the Tahoe in San Bernardino, Flores responded, “Yeah, it’s hard to shoot when you’re in a vehicle and both vehicles are moving and one’s turning.” When Levine remarked that Flores “hit that car a lot of times,” Flores said, “I should’ve used the other gun. ‘Cause I had four on methat day, you know.” Appellant said he had five. (DPSupplIl, SuppCT 70:2-3, 9.) Flores said of witness Katrina Barber:** “Stupid broad. Her best bet was to just shut it up because she wasnot there, but she wanted to “8 The prosecution called Katrina Barberto testify in connection with the Ledford Drive and Luis Reyes crimes. (Please see subsections D and E, above.) 46 be there ‘cause she decided she was gonna [unintelligible] and be somebody. If you look at her first and second statement, you know, bam.” Hesaid at trial he intended to say to her “Yeah, we gave you back yourlive [sic]. We could’ve killed you easy. But still, look what you did. You got more time — you got convicted because of your own. If you would’ve just shut it up, you were never there. But you wanted to place yourself at that scene and do 14 years, that’s up to you.” (DPSupplII, SuppCT 71:18-21, 24, 72:1-3.) In explaining why he wanted to make disclosures regarding the uncharged murders, Flores told Levine that both defendants wanted to talk with him because they wanted him to makesure that a large restitution fine would not be imposed upon them. (DPSuppllI, SuppCT 74:15-24, 75:1-4.) In discussing the charged counts contained within the pleading, appellant responded “Right” to Levine’s statement that appellant “had one [shank] in the toilet.” (DPSupplII, SuppCT 79:20-21.) Before Levine left them, Flores asked for autopsy photos, stating: “I want the autopsies. Hey, I look ‘em all day. Anything with bullet holes — ” . . . [§] “Well, see I wanna see where they got their [unintelligible] and the fuckin’ holes run in, where the bullet enters and checked out.” (DPSupplIII, SuppCT 80:12-15.) On March 18, 2002, Detective Thomas Kerfoot was present in the courtroom when Flores and appellant, still appearing in propria persona, asked for a meeting with Levine and Kerfoot to discuss charged and uncharged homicides. 47 On March 28, 2002, Kerfoot and Levine met at the jail. Deputy Beers provided them with a digital recording device. Kerfoot and Levine then met with Flores and appellant and surreptitiously recorded the conversation, which waslater placed on a compact disk. (P96; 11RT 2629- 2630.) A redacted version of the recorded conversation was played for the jury during the prosecution’s case and a transcription (P96a) provided for jurors’ use. (1IRT 2677, 12RT 2680.) At the onset of the interview, Levine advised Flores and appellant that any information they provided could be used against them, that they did not need to talk to him or Kerfoot although they had requested the meeting so they could provide Levine with information about new cases in exchange for the imposition of limited restitution, and that they had a right to have a lawyer present. (DPSupplIII, SuppCT 91:20-22, 92:10-15.) Flores in turn said that in order to avoid being identified as snitches, “Like wesaid from the beginning, I will only state what I did. He will only state what he did.” (DPSupplIlI, SuppCT 92:18-19.) Flores also asked how Levine was going to “guarantee” his promises regarding restitution (DPSuppIII, SuppCT 92:17) and asked that Levine leave Katrina Barber, Carina Renteria, and his mother alone (DPSupplIlI, SuppCT 93:2-6). Flores stated that they were going to give Levine information on “[t]}wo murders that you don’t got us for... .” (DPSuppIII, SuppCT 93:13.) In the conversation that followed, Levine repeated his advisement that Flores and appellant had the right to counsel and further advised them that even if the information they provided failed to result in convictions regarding those murders, it could still be used by the 48 prosecution in its penalty phase case. (DPSuppIII, SuppCT 94:10-16, 97:3- 8.) Appellant asked, “So how much of a guarantee can we have on the restitution though?” (DPSuppllI, SuppCT 99:4.) Levine said he would make his “best efforts” at requesting a $200 restitution for each of them. (DPSupplIII, SuppCT 99:8-16.) Flores hinted they might be willing to provide evidence of more than two murders. When Levine asked why, Flores said, “Well, we’re figuring this. When we go up — up there, we might decide to give up another one, you know. And they’ll say, ‘Well, they were right about the last one, so they good reprises [sic], you know. Try this one, boom. Who investigated this one? Who’s_ been [unintelligible] for it.” (DPSuppII, SuppCT 101:1-10.) Flores then turned to the specifics of the sentence the prosecution was seeking for Katrina Barber. Levine said he would be open to giving her a sentence that would allow her to be out with credit for time- served, but also asked the defendants for assurance that Barber would be safe when she got out. (DPSupplIiI, SuppCT 101-104.) Flores said, “We ain’t got a problem with her. Even with Co — Corina [Carina Renteria], truthfully, if we wanted to hurt them — .” Appellant interrupted, “We would’ve doneit.” Flores resumed, “they’d have been hurt. And her mom would’ve been hurt in her apartment. Her brother neighbor would’ve been hurt. Catch me?” (DPSuppllI, SuppCT 104:18-22.) Flores then provided this description: “Okay, okay. There was a guy that rested in peace. I believe it was on Los Angeles Street in Baldwin Park and Merced. Uh, there’s a restaurant on the sameside of the street. Uh, three houses from that restaurant I believe there’s a brown big 49 pole.” (DPSupplIII, SuppCT 106:13-15.) ‘“There’s a brown big pole. Okay, he was coming from the direction of a Circle K. He was on a handlebars of a bicycle, and his gang name is V-A-G-O, Vago, and he’s from a gang called Monrovia. (DPSuppIII, SuppCT 106:17-19.) Flores said he did not know Vago before the shooting (DPSupplIll, SuppCT 106:20-21), and then continued with, “Uhm, he had light blue or light gray pants on. Wore a white shirt. And give you action one more time. A 9 millimeter pistol was used, not a revolver. It was a click, right... . [§] [J Uh, I believe you should find five cases, right, there should be five cases, but one might not have landed there, but there’s five bullet impacts. Uhm, there should be — one would be on his left side, towards possibly his rib side, like on the side right here — . . . [{] by his rib. Uh, and he should have one to two there and two to three in his chest area, all chest shots.” (DPSuppIII, SuppCT 106:23, 107:1-10.) Appellant addedto this description in Spanish, “In front of his mouth” and “Thisis the other.”*” (DPSupplII, SuppCT 107:11, 13.) Levine asked whether they were walking or driving, and Flores replied, “No, we were driving.” (DPSupplIlI, SuppCT 107:18.) Levine asked who was driving and appellant replied, “I’m driving.” (DPSuppllI, SuppCT 107:20.) Appellant described the vehicle as a “four- runner.” (DPSupplIlI, SuppCT 108:10.) Flores added, “Okay, it’s late night, about — from 10:30 and nowhere past 12:00, within that time.” (DPSuppII, SuppCT 108:12-13.) ° This Spanish translation was included in the transcript provided to the jury. (DPSupplIl, SuppCT 107:11, 13.) 50 Flores said, “And there was a bunch of candles placed there. Oh, supposedly — suppose — I went back, right. Criminal always goes back to see it. By that pole — that’s why I rememberthe pole so clearly. The pole, there was — candles placed there, but he’s from Monrovia and his name is Vago... .” (DPSupplIJ, SuppCT 108:15-18.) Flores continued, “Vago, right. And, uhm, there wasa little dude that was right — he was on the — on the handlebars. The little dude was pedaling him, right. Theyfell off the bike, boom. And you'll be able to prove this becausethelittle dude had just laid there, didn’t run, and — and he see the dude get shot. Later on I found out that per — perhaps that washis brother, the guy went into shock. Okay, that’s one. You’ll be able to find that... .’ (DPSupplll, SuppCT 108:22-23, DPSuppIl, SuppCT 109:1-3.) Flores continued, “He went into shock. He — I already went to the hospital, and I felt bad for that. I didn’t wanna hurt him. He wasn’t a gang member. You could tell if was [sic] a gang member or not gang member. | let it off. I thought it perhaps been his brother, butit’s not his brother, or it might be, but he was a regular dude [unintelligible]. That’s why I saw we — we hurt some — some we don’t — there was no reason to hurt him.” (DPSupplI, SuppCT 109:8-12.) Flores confirmed that he was the shooter, appellant the driver in this incident and that Kerfoot did not have the gun he used, which Flores described as “black, uh, I believe it’s five to six — five in the click, one in the hole, which would be a Lawrence weapon, a Lawrence cheap.” (DPSupplll, SuppCT 109:13-20.) Flores then said, “I'll give you number two. That’s why tell you I like 9 millimeters. Same city, the street called Vinland, V-I-N-L-A- 51 N-D,Street... .[§] Youll find a blue blazer [sic], right?” Appellant said, “No, primer. It’s like a primer — ” (DPSupplll, SuppCT 110:15-19.) Appellant described an “older model blazer” (DPSupplIII, SuppCT 110:21) with a “shell.” (DPSuppIII, SuppCT 111:4.) During a conversation between the defendants about the namesofthe streets involved, appellant said, “And we — we going south on Vinland, going down on that same street where you madea right. When you madea right on that — on Vinland, and going out Vinland, he made a right. Right when he stopped at the corner, he pulled over at the corner. We’re going down south, making a left on the same street that he just turned on.” (DPSuppllI, SuppCT 111:5-23.) Flores said he was the shooter. Appellant said, “I’m driving the car.” (DPSuppllJ, SuppCT 112:15-17.) Flores said, “Right on Vinland, and down Vinland there’s a turn... .[§] Ill pull a G right here. He never let the driver see... . [9] One — I believe two to three shots. There was twoto three shots. [ believe one in the face, one in the neck. Think there’s two.” Appellant agreed with these statements. (DPSupplIII, SuppCT 112:4-9.) Both appellant and Flores said the passenger jumped out and ran. (DPSupplll, SuppCT 112:10-13.) Flores said, “He was holding onto the steering wheel. He was holding on the steering wheel whenI left.” Appellant said, “And he — and his head hit the — the horn, I believe.” (DPSuppIII, SuppCT 112:20-21.) Flores said, ‘““He’s dead.” (DPSupplIJI, SuppCT 113:4.) Flores told Levine he would be able to “prove this because he had a passenger. That’s the one that should’ve called 911.” Appellant added, “He ran.” (DPSupplIl, SuppCT 113:8-10.) 52 Levine asked for the reason for the killing. Appellant replied, “He was a gang member, man.” Flores said, “He was a gang memberin the wrong area. Territorial.” Appellant added, “Tribal instincts froma... [] place in the colonial days, you know.” (DPSupplII, SuppCT 113:17-23.) Appellant said he was driving a light bluish car, a stolen car. Appellant said they were not looking for the victim and describedit as “ta vandal — it’s a — it’s a vandal type of thing. You’re driving around your neighborhood looking for people to kill.” Flores said, “Right.” Appellant said, “Main objective.” Flores said, “He’s not supposed to be in the neighborhood, and wefinally seen him driving by on this night, okay.” (DPSuppIII, SuppCT 114:10-17.) Flores said he had seen him before and that the victim was “from around here.” (DPSuppllJ, SuppCT 114: 18-21.) Flores described the location and the shooting this way. “You go down Vinland, then could go straight towards Foster School, but before you get to Foster School, we turn in, bam, and it’s a corner house equals to the corner that we pulled up next to. I domed him, boom, boom. That dude from the passenger side jumpsout, runs, goes by the first house, bam.. . .” (DPSupplIll, SuppCT 115:6-10.) Flores said he was the closest to the driver. “Yes. Because he stopped, we stopped, and I go boom, domed him. ...” (DPSuppIll, SuppCT 116:3-4.) Flores said he didn’t know the driver’s gang, “but he — he act stupid one time. You know what I’m saying.” When Kerfoot suggested “disrespectful,” Flores said, “Yeah. So he — you — nobody got caught for these things, man, smooth as silk.” (DPSupplIII, SuppCT 116:8-12.) Appellant said Flores used “a different 9 millimeter.” Flores agreed and 53 said it could have been a Smith and Wesson. Hesaid he was “tight with 9. That’s why ti—I—I like 9s.” (DPSuppHI, SuppCT 116:15-18.) Appellant said, “If you have a casing from that big street on Vinland . . . [{]] that same casing will match the one on that samestreet, where four gang members walked up to a car and shot it with three 9 millimeters.” (DPSuppI, SuppCT 117:12-15.) Flores agreed. (DPSupplll, SuppCT 117:16.) Flores spoke again of the shooting involving the bicycle. “I popped him twice. He fell off the handlebars, the bike rolled over, boom. This dude standing closest to me. The other one’s by — there’s that little driveway right there, bam, and onetried to crawl with his hands like — he waslike on his — on his butt with his feet on the ground and his hands on — in back of him, and he wastrying to crawl back to me, pow, pow, put the rest to him.” (DPSuppIII, SuppCT 122:14-18.) Flores said, “Yeah, the other guy was just in shock, just looking at me like — and I just looked at him like, ‘Man, for what?[’?] He don’t look like a gang member.” (DPSuppllII, SuppCT 122:23, 123:1.) Flores told Levine that he had not even found half of the Redlands matters. Appellant said, “You guys didn’t even try.” (DPSupplIIl, SuppCT 123:6-12.) Appellant then turned to the shooting at Santa Monica Pier, saying, “But [ll tell you one thing, I would’ve — I would — I make suggestions if police officers at the Santa Monica pier were very lucky.” Appellant said, “Let me tell you what I had that day. .. . [f] I had a fully automatic AK47 with a [unintelligible] and 20-round clip drum.” (DPSupplIll, SuppCT 123:16-23.) Appellant and Flores said they had an 54 “AK47 with four clips, 30-round clips. Some are hollow point and some are not... .” Appellant reiterated, “So you guys were lucky.” (DPSupplll, SuppCT 124:4-5, 9.) Flores and appellant noted that while they had given Levine and Kerfoot information about five murders, there were others. Flores said, “Because, see, the whole thing is you — why give upall our marbles at one time. Catch me?” (DPSuppllI, SuppCT 133:23, 134:1.) Kerfoot asked Flores and appellant what motivated them to “go out and just start capping - . . . [§] people that are walking down the street?” Appellant responded, “ — what motivates you to go to work?” Flores said, “Yeah. You gotta go to — like it’s your job, you know.” Flores also said, “I took a job and that’s my job.” (DPSuppIl, SuppCT 138:23, 139:1-6.) Flores explained, “That’s it. That’s my neighborhood, man. Andit’s territorial. Uh, Wolf pees on every spot that’s his, and next side of a bar [unintelligible] you enter it, theyll go pee on your spot again and make — because you go init... .” (DPSupplIII, SuppCT 139:23; 140:1-3.) As to the crimes committed outside his area, Flores said, “Well, see, the whole thing is [unintelligible] — let — let — let’s — oh, we were trying to better the gang and instill fear to the rest of the gangs.” (DPSupplII, SuppCT 140:8-9.) Flores explained shooting the driver who heearlier said had been disrespectful in this way. “Yeah. You know, I mean,he wastold not to drive in our hood, you know? Drive somewhere else. Go around the block. Take the long way. I caught him taking the short way, you know. The long way would’ve been get off the freeway, come up off on Merced, boom, by the McDonald’s, boom, by La Puente, boom, makethat turn and 55 get to wherever you gotta go. But if they would listen or they don’t believe.” (DPSuppII, SuppCT 140:20-23, 141:1.) When Levine asked again about what Katrina Barber knew, Flores said, “My thing is I’m at peace of whatever I done, however I done it, you know. I’m —I regret not being — you know. And — and — and my thing is the only regret that I have is that three women were involved, my mom, Corina, Katrina, you know?” (DPSupplII, SuppCT 141:12-14.) Flores spoke of Paul Ponce, saying, “Vago, Paul Ponce, he — he’s a good person. Catch me? real good person.” (DPSupplll, SuppCT 144:2-3.) Flores also said, “I like him. I like him. You know? I mean,if he’s dead. If you’re gonnagive it to us, if you can charge us forit, charge us to clean your books, that’s cool. But don’t run him through the mud. That’s all we ask you. Yeah, that — that really — that really affects us.” (DPSuppllI, SuppCT 144:17-20.) Flores and appellant said they went to the wake for Ponce and walked up to the casket and left within minutes of arrival because they didn’t want to get caught there. Flores said there would have been a lot of bloodshed. They both said they had many guns that day. (DPSupplIlI, SuppCT 146.) At a point in the conversation, Kerfoot asked what Flores and appellant had done with their duffle bags of weapons. Flores replied, “Well, we can’t tell you that. You know, but if we ever get out —.. . [{] If we ever get out, will we be able to go get ‘em and we’ll be able to finish our mission? ‘Cause our mission was not completed.” Appellant agreed, “Yeah.” Flores continued, “But I'll tell you, he had a — he had a — 120- round drum that, bam, and a Chinese AK,and I took off the stock and put a short stock on it.” (DPSuppIII, SuppCT 151:8-15.) 56 Kerfoot asked, “What was your mission?” Appellant replied, “To kill as much people as I could. . . . [{] Cops included.” (DPSupplII, SuppCT 151:21-23.) Flores agreed, “Yeah.” Appellant said, “Unfortunately, we got cut short.”” (DPSuppIII, SuppCT 152:1-2.) Appellant and Flores then began to describe incidents in which they had had opportunities to kill police officers, but did not. In the earlier interview Flores and appellant had with Levine on February 21, 2002, they discussed a time when they had given a “pass” to a Baldwin Park police officer named Koback. They said they waited outside a nursery with two AKs for Koback to emerge, but then decided they had no reason to hurt him. (DPSuppllI, SuppCT 66-67.) Now, during the second recorded interview with Levine and Kerfoot, the defendants discussed again the fact that they did not shoot the officer who stopped in the nursery by the 7-Eleven store off of Benton. They also could have but did not shoot the “detectives in the red car” and also a “Mr. Reynoso,” who may have been Baldwin Park detective and prosecution gang expert David Reynoso. (DPSupplII, SuppCT 152:1-23.) Flores added, “Yeah. We could’ve caught them other times, tell “em don’t hang out at Public Taco off of Ramona by the Mobile [sic], because I wanted to get him when they each pulled up next to me, say, ‘Hey, [unintelligible],’ (whispering) bam, bam, bam, jump on the freeway.” Levine asked, “Why do you want cops so bad?” Flores said, “They followed us. I can’t go to the goddam eat a taco with him there.” Appellant agreed, “Yeah.” (DPSupplll, SuppCT 153:4-13.) Levine asked Flores about the gun he had in the hospital following his arrest. Flores said, “Yeah, yeah, yeah. I was gonna shoot a 57 cop. I’m not gonna lie. That’s why I kept saying, ‘Oh, ’'m hurting, I’m hurting.’ But they had me handcuffed like this to the bar.” Levine asked which cop he intended to shoot. Flores said, “Whichever cop that was closest to me. I was trying to get the gun, but I couldn’t reach andit wouldn’t fall off, and if it would’ve fell out, he was gone.” Levine pointed out that Flores was handcuffed. Flores said, “And I was [simulating gunfire]. I had five shots, plus one, ‘cause I always keepit in the hole... .” (DPSuppHI, SuppCT 154:13-23.) Levine asked the defendants to provide him with the guns from the shootings involving Monrovia and the one that occurred off Vinland. Flores said he would be able to give Levine the Monrovia firearm, a “black Lawrence,” a “big ugly, ugly gun.” (DPSuppllIl, SuppCT 156:2-15.) Flores also said, “Oh, I only shot five times. I only had five shots.” (DPSupplIlI, SuppCT 156:19.) Toward the end of the conversation, Flores spoke again about the Blazer shooting. “Well, see, I don’t believe — I don’t think it was — it was — I’m — I’m telling you, homes, it was two shots. That blazer was two shots. I know what I can do. It was two shots, because I smiled and said, ‘Hey, homie, two.’ Catch me? And I counted after to top it off [unintelligible]. ‘Cause I believe that one carried — that Smith and Western was a old Smith and Western, and I believe it carried eight with one or nine with one. Bad ass, boom. It had four clips [unintelligible].” (DPSupplII, SuppCT 173:16-21.) 58 FLORES’ DEFENSE” The parties stipulated that Carina Renteria told Andre Acevedo, the security manager at K-Mart where she worked, that she had an unknownperson in the front passenger seat and two people in back and they were following a car loaded with guns when a police car got between the two cars. The two males in the back seat told her to catch up with the police car and, when she did, they rolled down their windows and began shooting at the officer. Acevedo then recounted this to the police. (13RT 2852-2853.) THE PROSECUTION’S PENALTY PHASE EVIDENCE On March 29, 1995, David Wachtel, Buddy Jacob, and a woman named Karen were talking in a car in Baldwin Park. Flores and a second man jumped over a fence and came up to the car. Flores tapped on the window. Wachtel, who wasseated in the rear, opened his door. Flores displayed a gun, asked for money, and told Wachtel to get out of the car. Flores took Wachtel’s pager and wallet, Jacob’s necklace, and $20 from Karen’s purse. After Flores was arrested and charged, Wachtel testified at the preliminary hearing and identified Flores in court. (14RT 3108-3111.) On May 10, 2001, jailer Dustin Cikcel searched Flores’s cell and removed contrabandconsisting of excess sheets and food while Flores was in the shower two orthree cells away. Flores was belligerent and cussing. Later, Flores said, “You will see Cikcel. Maybe not today, but *0 Appellant’s defense consisted of a stipulation pertaining to the murder charged in count 1. The substance of that stipulation is provided above in subsection C as part of the description of the Paul Ponce crimes, of which appellant was acquitted in counts | and 2. 59 you will see when youare not expectingit.” Cikcel took Flores’s statement as a serious threat because of Flores’s charges, prior convictions, and gang allegations. (14RT 3118-3020.) On November 19, 2004, jailer Juan Rivera searched appellant’s cell and found a shank undera stool. A couple of weeks before he gave this testimony, appellant told Rivera he knew that Rivera was going to find that shank that day. (14RT 3113-3117.) Maria de Los Angeles Calvo, the mother of George Flores, testified that George was the youngest of her four children and a happy, friendly person who had manyfriends, liked to study, liked baseball, and was loved by his family. (14RT 3123-3124.) George was a good and loving son who wasclose to her, watched television with her, and wanted to go into electronics. George had a son who questioned why his father was gone. (14RT 3123-3128.) Michelle Gerena was a friend of George Flores. Her husband grew up with George. George wanted everyone to be happy. Heloved his son. The people at his funeral, not the cemetery personnel, asked for shovels and buried him. (14RT 3134-3137.) Vivian Gonzales, the mother of John Diaz, testified that she missed her good, funny, caring, and loving son. She missed him very much. Now,her son Paul Gonzales had no siblings. John waskilled three days before his 24th birthday. She heard the gunshots and ran. The shots were so loud they scared the whole neighborhood. Then she saw Paul and knew that John had been shot. She could not make herself go to him and see him die. (14RT 3138-3140.) She could not go to his gravesite, so she made a garden for him and found comfort there. She had changed; she was 60 often angry. Many days she didn’t want to get out of bed. Johnleft a daughter Celeste who will never knowher father. (14RT 3140-3143.) Timothy Obregon testified that he lived in Baldwin Park but was never a gang member. On June 13, 2000, around 10:00 at night, Richard Robles, an Eastside Baldwin Parque member asked him to drive his homeboys to their home. Obregon at first refused because he was expecting his girlfriend Alicia Garcia to come over. (14RT 3148-3149.) But Robles pleaded and Obregon finally agreed. Robles brought Flores and appellant over to Obregon’s home and gave Obregon $40 to buy gas and said any leftover monies belonged to Obregon. Garcia decided to go along for the ride. (L4RT 3152-3154.) Either Flores or appellant brought a large black duffle bag with him and put it into the trunk of the gray Nissan that belonged to Obregon’s mother Patricia Obregon. Everyone got into the car. Obregon drove; Flores sat behind him. Garcia sat in the front passenger seat and appellant behind her. After Obregon stopped for gas, Flores told Obregon to drive east on Interstate 10. (J4RT 3155-3157, 3184.) After a while, Garcia commented that the trip was taking a long time and asked how muchfarther they had to go and when they would get there. No one answered. A minute or two later, Obregon heard lot of popping sounds. He saw bullet holes popping through the windshield and Garcia squirming. He looked around and saw that appellant had a gun. Appellant pulled the magazine out from the gun and put in another. He then moved the gun from one hand to another and beganto raise the gun to Garcia’s head. Garcia said, “Stop shooting me.” Flores told appellant, “No, don’t do that.” (14RT 3158-3160.) 61 Garcia turned to Obregon andstarted to cry. She said, “He shot me, and I am dying.” Blood was gushing from a hole in her chin. Obregon felt something in the back of his neck. Appellant said, “Better drive straight, motherfucker, or I will shoot you with this nine.” (14RT 3161.) At Flores’ direction, Obregon pulled off at the next exit. He knew of no reason why the shooting had happened. (14RT 3161-3162.) Garcia was beginning to lose consciousness. Flores told Obregon he would let them go where they could get some help. After they passed by a Circle K store, Flores told Obregon topull overin a residential neighborhood. When Obregon got out of the car, Flores did too. Flores asked Obregon for money. Obregon gave him the $20 he hadleft. Flores told Obregon to get Garcia out of the car. Obregon opened Garcia’s door and saw a lot of blood and her sad eyes. (14RT 3163-3165.) When Obregon lifted Garcia, she screamed in pain. There were multiple gunshot wounds in her breast. He was unable to carry her more than a few steps. He put her down and attempted to shield her. Flores asked Obregon, “Do you know me?” Obregon replied he would say they had been carjacked. (14RT 3166, 3170.) Flores and appellant drove away in the gray Nissan. Obregon ran to the first house and banged on the door. No one answered. Garcia lifted her head andtold him to get to a telephone. Obregonranto the Circle K and called 911 to report a carjacking. (14RT 3168-3170.) Garcia recovered, but she was no longer able to draw. Her personality had changed; she was a wreck, fearful of everybody and everything. She lived in her car. (14RT 3173.) 62 Redlands firefighters responded to the call made from Alta and San Bernardino Avenues in Redlands. Garcia had gunshot woundsto her breast, finger, and chin. They made what they called a scoop-and-run call, one in which the priority is to get the person to the hospital. (14RT 3175-3180.) Redlands police recovered Garcia’s clothing at the scene. The soot on the clothing indicated the weapon wasfired at close range. (14RT 3187-3192.) At 3:00 a.m. early the next day, Baldwin Park police came upon Patricia Obregon’s Nissan fully engulfed in flames. (14RT 3184.) 63 ARGUMENT Jury Selection Issues THE TRIAL COURT ERRED IN REJECTING THE DEFENSE REQUEST THAT THE QUESTIONNAIRE ASK PROSPECTIVE JURORS WHETHER THEY WOULD ALWAYSVOTE FOR DEATH IF APPELLANT WAS CONVICTED OF MULTIPLE MURDERS. THE RULING DEPRIVED APPELLANT OF HIS CONSTITUTIONAL RIGHTS TO A FAIR TRIAL AND IMPARTIAL JURY AS GUARANTEED BY THE SIXTH AND FOURTEENTH AMENDMENTSTO THE UNITED STATES CONSTITUTION. The information charged appellant with committing multiple murders. The defense requested that the questionnaire to be completed by prospective jurors include a question asking jurors if they would automatically vote for death if appellant was convicted of multiple murders. Instead of the defense-proffered question, the trial court included a modified version of the question that failed to elicit the information sought by the defense. In soruling, the trial court deprived appellant ofhis right to a fair trial and impartial jury as required by the Sixth and Fourteenth Amendmentsto the United States Constitution. A. Background Counsel for Flores, joined by Amezcua (4RT 1166), requested that the following question be included in the jury questionnaire: 1. If you find the defendant guilty of five different murders with special circumstances would you always vote 64 for the death penalty? Yes== No Please Explain. (ICT 2724.) At the initial hearing regarding the questionnaire, the prosecutor opposed the giving of the question. (4RT 1166:17.) Thetrial court advised counsel that he was concerned that the question would cause the prospective jurors to prejudge the evidence, but at the same time said he thought the question might be helpful. (4RT 1167:14-17.) The court then recounted this experience. I had a trial one time where we were doing voir dire without the benefit of the questionnaire on a case where a man had been accusedofkilling four women on four separate occasions. And I remembera prospective juror in the back row said, you know, your honor, if the evidence shows he killed four womenI’m going to vote for death. And frankly, I commended the juror for the way he was so forthright with his feeling about that. Of course, he was excused from the jury. And that jury later returned a life sentence. (4RT 1167:18-27.) The court continued: The question is, you don’t wantin a questionnaire or in voir dire to have jurors commit to certain positions based on what you expect the evidence is going to show. I know as an advocate you would like very muchto try your case in voir dire. It is my job to keep you from doing so. (4RT 1168:2- 7.) I don’t know, I will think about it as to the number of murders. I don’t think murder with special circumstance means very much to anybody. Special circumstances means a lot to lay jurors. I will try to fashion a question about the number of murders, perhaps. I will give some thought toit. (4RT 1168:8-13.) 65 The matter was put overfor later resolution. (4RT 1168.) At the next hearing, the court proposed the defense-proffered question be reworded as follows: “If you found a defendant guilty of five murders, would you always vote for death and refuse to consider mitigating circumstances(his background, etc.)?” (4RT 1174:23-27.) Both the prosecutor and counsel for Flores agreed to the form of the question and the court ordered the question included within the questionnaire. (4RT 1175-1175.) The record reveals no_ specific concurrence by counsel for Amezcua, whoat that point, in the absence of lead counsel, was represented by second seat defense counsel.”' (4RT 1173-1175.) The question, as stated above, was included in_ the questionnaire. (11CT 2837.) As appellant explains below, a challenge for cause may be based on a prospective juror’s response when informed of facts or circumstances likely to be present in the case being tried. Here, appellant wascharged with multiple murders and the defense sought to identify those jurors who would automatically vote for death in the event appellant was convicted of five murders. Whenthe trial court modified the defense- proffered question by tacking on, in the conjunctive, consideration of mitigating circumstances, the court blurred the call of the original question in a way that suggested that only evidence of mitigating circumstances >! On an earlier occasion, the trial court stated that unless counsel stated otherwise, he would presume that both defendants were joining in each other’s motion. (3RT 898:7-9.) 66 would suffice to prevent a death verdict. The question also became compound. Jurors could answer no who will always vote for death (but give consideration to mitigation). For the reasons set forth below, the court’s refusal to include the originally requested question in the questionnaire waserror. B. The Relevant Law and Application to This Case In Wainwright v. Witt (1985) 469 U.S. 412, the United States Supreme Court held that a prospective juror may be excluded for cause if the juror’s views prevent or substantially impair the juror’s performance in accordance with the juror’s instructions and oath. (/d., at p. 424.) Witt confirmed that this standard for excusing a juror is grounded in the Sixth Amendment’s guarantee of an impartial jury. (U/d., at p. 423.) In Lockhart v. McCree (1986) 476 U.S. 162, the Supreme Court recognized that the time to identify prospective jurors whose views would adversely affect the performance of their duties is during voir dire examination. (/d., at p. 170 fn. 7 (state must be given opportunity to identify at voir dire prospective jurors whose opposition to death penalty would prevent them from performing jurors’ duties).) In Morganv. Illinois (1992) 504 U.S. 719, the Supreme Court noted that the Constitution “does not dictate a catechism for voir dire, but only that the defendant be afforded an impartial jury.” (/d., at p. 729.) The Court then observed: “Even so, part of the guarantee of a defendant’s right to an impartial jury is an adequate voir dire to identify unqualified jurors.” (Ibid.) “Voir dire plays a critical function in assuring the criminal defendant that his right to an impartial jury will be honored. Without an 67 adequate voir dire the trial judge’s responsibility to remove prospective jurors whowill not be able impartially to follow the court’s instructions and evaluate the evidence cannotbe fulfilled.” (Rosales-Lopez v. United States (1981) 451 U.S. 182, 188.) In Morgan, the trial court, conducting the voir dire examination in accordance with Illinois law, asked each prospective juror whether he or she had moralor religious principles so strong that the juror could not impose the death penalty “regardless of the facts.” (Morgan v. Illinois, supra, 504 U.S. at p. 722.) Thetrial court, however, refused the defense request that the court inquire, “If you found Derrick Morgan guilty, would you automatically vote to impose the death penalty no matter what the facts are?” on the groundthat the court had asked substantially the same question as part of other more general questions. (/d., at p. 723.) Morgan held the trial court’s refusal of the defendant’s request constituted reversible error. (/d., at p. 725, 739.) In so doing, the Court took note that the belief that death should be imposed ipso facto upon conviction of murder reflects on a prospective juror’s inability to follow the law. However, that same juror may believe he or she can be fair and impartial and follow the law, and at the same time be unaware that those beliefs prevent him or her from following the law. (qd., at p. 735.) Morgan concluded that a defendant is “entitled, upon his request, to inquiry discerning those jurors who, even prior to the State’s case in chief, had predetermined the terminating issue of his trial, that being whether to imposethe death penalty.” (/d., at p. 736.) In People v. Cash (2002) 28 Cal.4th 703, this Court recognized that the identification of prospective jurors whose views on the 68 death penalty would prevent or substantially impair the performance of their duties as jurors encompassed two “real questions.” There are whether the juror’s views about capital punishment would prevent or impair the juror’s ability to return a verdict of death in the case, and its corollary, whether the juror’s views about capital punishment would prevent or impair the juror’s ability to return a verdict of life without parole in the case. (/d., at p. 719-720; Morganv. Illinois, supra, 504 U.S. at pp. 726-728.) In Cash, a capital homicide prosecution, a general fact or circumstance present in the case was that the defendant had previously murdered his grandparents. The trial court, however, did not permit defense counsel to inquire during voir dire whether prospective jurors would automatically vote for death if the defendant had previously committed a prior murder (viz., the murders of his grandparents). This Court held that the trial court prejudicially erred in prohibiting voir dire on prior murder,“a fact likely to be of great significance to prospective jurors” and one “that could cause some jurors invariably to vote for the death penalty.” (People v. Cash, supra, 28 Cal.4th at p. 721.) Cash noted that “such particularized death-qualifying voir dire” had been held to be appropriate in People v. Pinholster (1992) 1 Cal.4th 865, 916-917 (felony murder); People v. Ochoa (2001) 26 Cal.4th 398, 431 (perpetrator not the actual killer); People v. Ervin (2000) 22 Cal.4th 48, 70-71 (hirer in murder- for-hire case); People v. Livaditis (1992) 2 Cal.4th 759, 772-773 (young defendant or lack of prior murder); and People v. Bradford (1997) 15 Cal.4th 1229, 1320 (for cause excusal proper where prospective juror asked to conceive of circumstances in which he could render a death verdict 69 provided hypothetical example of specified, particularly extreme cases with more egregious facts than involved in present case.) In People v. Kirkpatrick (1994) 7 Cal.4th 988, this Court held that a challenge for cause may be based on the juror’s response when informed of facts or circumstances likely to be present in the case being tried. (/d., at p. 1005, accord People v. Ervin, supra, 22 Cal.4th at p. 70; People v. Earp (1999) 20 Cal.4th 826, 853.) These cases, “affirmed the principle that either party is entitled to ask prospective jurors questions that are specific enough to determine if those jurors harbor bias, as to somefact or circumstance shownbythetrial evidence. .. .” (People v. Cash, supra, 28 Cal. 4th at pp. 720-721.) The foregoing authority thus establishes that the parties are entitled to identify potential jurors who would automatically vote for either life or death based upon a fact or circumstance present in the case and that the time for making the necessary inquiries is during voirdire. Here, of course, the question originally proffered by the defense was intended to identify jurors who, if they convicted appellant of five murders (a fact or circumstance present in the case), would always vote for death. The question was analogous to the question that Morgan v. Illinois held the trial court should have allowed the defense in its case to make, to wit, “If you found Derrick Morgan guilty, would you automatically vote to impose the death penalty no matter what the facts are?” Additionally, contrary to the trial court’s concern that the original defense question impermissibly allowed the jurors to prejudge the case,this Court has determined that court-imposed restrictions on particularized 70 death-qualifying voir dire based on facts or circumstances present in the case creates reversible error. (People v. Cash, supra, 28 Cal.4th at p. 723.) Appellant has asserted above that when the court reframed the question to include a refusal to consider mitigating circumstances (“If you found a defendant guilty of five murders, would you always vote for death and refuse to consider mitigating circumstances (his background,etc.)?’’), the question linked a death verdict with a refusal to consider mitigating circumstances and obscured the call of the original question, i.e., what would the jury do in the absence of mitigating evidence? This was particularly germane in this case in which the defense presented no mitigating evidence. This Court has recognized that California’s death penalty sentencing process allows jurors to take into account their own values in weighing aggravating and mitigating factors. (People v. Kaurish (1990) 53 Cal.3d 648, 699; People v. Stewart (2004) 33 Cal.4th 425, 447.) Accordingly, a juror may vote for life and not death whenthe penalty phase evidenceis limited to aggravating factors alone. In addition, to the extent the revised question suggests that the lack of mitigating factor(s) may be construed as an aggravating factor, it states an incorrect principle of law. “[T]he absence of a mitigating factor may not be considered as an aggravating factor.” (People v. Siripongs (1988) 45 Cal.3d 548; People v. Davenport (1985) 41 Cal.3d 247, 289.) This Court has held that an instruction indicating that a jury may choose death simply on the basis of a lack of mitigation, without finding that the aggravating circumstances themselves warranted the most severe penalty,is error. (People v. Brasure (2008) 42 Cal. 4th 1037, 1065; see also People v. 71 Livaditis (1992)2 Cal.4th 759, 784 (absence of mitigating factoris not itself aggravating is correct statement of law, but specific instruction to that effect is not required.) In addition, the compound nature of the revised question creates an opportunity for confusion because a no answerto the question, “If you found a defendant guilty of five murders, would you always vote for death and refuse to consider mitigating circumstances(his background, etc.)?” does not necessarily mean that the juror would not automatically vote for death. Appellant further contends that the court’s error in restricting death qualification voir dire resulted in a failure to identify those jurors whose death penalty views would prevent or substantially impair the performanceoftheir duties as jurors. C. Reversal of the Penalty Judgment Is_ the Appropriate Remedy because the Trial Court’s Restriction of Voir Dire Creates Doubt That Appellant Was Sentenced to Death by a Jury Empanelled in Compliance with the Law This Court has held that a defendant who establishes that a trial juror was biased against him is entitled to a reversal. (People v. Cunningham (2001) 25 Cal.4th 926, 975.) In People v. Cash, supra, as in the present case, the trial court’s ruling prevented the defense from examining prospective jurors on the disqualifying view that the death penalty should be imposed invariably and automatically on the defendantif he had committed one or more murders other than the murder charged in the case. Like appellant, the defendant in Cash could not identify a particular biased juror because he was denied an adequate voir dire 72 regarding convictions for other or multiple murders, “a possibly determinative fact for a juror.” (People v. Cash, supra, 28 Cal.4th at pp. 722-723.) Cash noted that when the court restricted voir dire about other murders, it created the risk that a juror who would automatically vote to impose the death penalty upon a defendant who had committed other murders would be seated and that the juror would act upon those views and thereby violate the defendant’s due process right to an impartial jury. (d., at p. 723.) That, in turn, creates doubt the defendant was “sentenced to death by a jury empaneled in compliance with the Fourteenth Amendment.” (Morgan vy. Illinois, supra, 504 U.S. at p. 739; People v. Cash, supra, 28 Cal.4th at p. 723.) Cash, in accord with Morgan, held that reversal of the judgment of death was the appropriate remedy. ‘Because thetrial court’s error makes it impossible for us to determine from the record whether any of the individuals who were ultimately seated as jurors held the disqualifying view that the death penalty should be imposed invariably and automatically on any defendant who had committed one or more murders other than the murder charged in this case, it cannot be dismissed as harmless. Thus, we must reverse defendant’s judgment of death. (Morgan v. Illinois, supra, 504 U.S. at p. 739.)” (People v. Cash, supra, 28 Cal. 4th at p. 723. Appellant respectfully submits that his case is like that of Morgan and Cash and that reversal of the judgment of death is similarly warranted here. 73 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 ACCORDANCE WITH THE COURT’S INSTRUCTIONS AND HER OATH The trial court excused for cause Prospective Juror No. 74 who expressed some reservations about imposing the death penalty, but who 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.) In excusing a prospective juror for cause despite her willingness to fairly consider imposing the death penalty, the trial court committed reversible error under Witherspoon v. Illinois (1968) 391 U.S. 510 and Wainwright v. Witt (1985) 469 U.S. 412, violating appellant’s rights to a fair trial and impartial jury as guaranteed bythe Fifth, Sixth, and Fourteenth Amendments. A. Jury Selection Procedures The court employed a questionnaire in selecting a jury. The questionnaire included the following questions, inter alia, pertaining to the death penalty. Are you so strongly opposed to the death penalty that you would always vote for life in prison without the possibility of parole and never vote for death for a defendant convicted of first degree murder and a special circumstance? (16CT 4201.) Are you so strongly in favor of the death penalty you would always [] vote for death and never vote for life in 74 prison without the possibility of parole for a defendant convicted of first degree murder and a special circumstance? (16CT 4201.) Are you so strongly opposed to the death penalty that you would always vote against death regardless of what evidence of aggravation or mitigation is presented? (16CT 4202.) Are you so strongly in favor of the death penalty that you would alwaysvote for death regardless of what evidence of aggravation or mitigation is presented? (16CT 4202.) In a penalty phase, would you want to hear evidence of aggravation and mitigation? (16CT 4202.) In a penalty phase would you always vote for death, regardless of the mitigating evidence? (16CT 4202.) In a penalty phase would you always vote for life, regardless of the aggravating evidence? (16CT 4202.) Regardless of your views of the death penalty, would you be able to vote for death for a defendant if you believed, after hearing all the evidence, that the death penalty was appropriate? (16CT 4202.) Will your feelings about the death penalty impair your ability to be a fair and impartial juror in this case? (16CT 4202.) In his prefatory remarks to the potential jurors before voir dire examination, the trial court continued in the same vein. The court told the jury: “Jurors who would never impose death cannotsit in this case. []] Jurors who would never impose life cannot sit on this case.” (SRT 1307:7- The court went on to explain that he and other judges have found that “people kinda break themsel[ves] down into four categories in a case like this.” (SRT 1307:16-17.) The court explained further: 75 Wehave the category number one people. These are folks that don’t believe in the death penalty. And that’s fine. Many of you said you could never impose death and I respect that decision. J am not here to try to change your mind. (SRT 1307:18-22.) But you are a category one person. You are somebody who would never ever vote to convict or to put to death someone at the hands ofthe state. And that’s fine. I respect that decision. (SRT 1307:23-26.) We have a category two person. This is the person who’s strongly in favor of the death penalty. He is kinda of an eye for an eye guy whosaysif this person, this defendant, committed murder with special circumstances, he must die. [§]] I don’t care about his personal history or background. I don’t care about the mitigating evidence. Murder means he should be executed. That is a category number two person. Wehave someofthose in this group. (SRT 1307:27-1308:8.) Then we have what I call the category three person. Andthis is the person who says, you know, I believe in the death penalty. But, you know, I know myself. And I don’t think I could ever vote to put somebody to death. (SRT 1308:9-14.) The court went on to describe the anguish experienced by category three jurors who, though they believed in the death penalty, found when faced with making a decision that they could not vote for death. (SRT 1308-1309.) The court then described the category four person. Nothing wrong with being a category three person. Nothing wrong with being a category one person. Nothing wrong with being a category two person. (SRT 1310:1-4.) The reason I bring these up, is because I know some of you are going to fall in these categories. The 4th category, the category four person is the person whosays, you know,I can go either way. I want to hear it all. And I was really 76 happy to read the questionnaire. Many of you said I want to hear everything that I am entitled to hear before I have to make such a decision. But many of you said I could make such a decision. And that’s all we’re after. We want people that can make the decision. [{] I am not sending any messages here. We want people to make a decision based on the evidence. And that’s all we want. (SRT 1310:5-17.) During his voir dire examination of the panel, the court asked each prospective juror to select the category that best fit him or her. For example, the court asked the following representative questions of Prospective Juror No. 1: The Court: What would you — How would you categorize yourself; Are you a number one, are you somebody that would never vote for death? (SRT 1314:15- 17.) Are you a numbertwo, are you somebody that would always vote for death if someone committed murder? (SRT 1314:18-19.) Are you a number [] three, someone who kinda believes in the death penalty but couldn’t — could never impose death themselves? (SRT 1314:20-22.) Or are you a numberfour, someone who would beable to weigh all the evidence and make an appropriate decision? (SRT 1314:23-25.) B. Prospective Juror No. 74 In her questionnaire responses, Prospective Juror No. 74 wrote that she had “no opinion one way or the other” about the death penalty, and added: “I just don’t want to be the one to decide; I wouldn’t chooseto kill someone.” (16CT 4201.) She considered death to be a more 77 severe penalty than life without the possibility of parole because it “ends someone’s life.” (16CT 4201.) On the one hand, she said she was “so strongly opposed to the death penalty that [she] would always vote forlife in prison without the possibility of parole and never vote for death for a defendant convicted of first degree murder and a special circumstance.” (16CT 4201; boldface in original.) On the other hand, she said she was unsure about whether she was “so strongly opposed to the death penalty that [she] would alwaysvote against death regardless of what evidence of aggravation or mitigation is presented.” (16CT 4202; boldface in original.) Prospective Juror No. 74 also responded in her questionnaire that she would “want to hear evidence of aggravation and mitigation”in the penalty phase, that she would not “always vote for death regardless of the mitigating evidence, and that she would probably “always vote for life regardless of the aggravating evidence.” (16CT 4202; boldface in original.) However, she also said that she would “be able to vote for death for a defendant if [she] believed, after hearing all the evidence, that the death penalty was appropriate.” (16CT 4202.) And, importantly, she stated that her “feelings about the death penalty would not impair [her] ability to be a fair and impartial juror in this case.” (16CT 4202.) In addition, Prospective Juror No. 74 stated that she understood (1) that the charges are not evidence; (2) that the defendants are entitled to the presumption of innocence; (3) that the State must prove the case beyond a reasonable doubt; (4) that the defendants are not required to prove their innocence;(5) that the defendants have a constitutionalright not to testify; (6) that she must judge the evidence as to each count separately; and (7) that she must judge the case against each defendant separately. She 78 also agreed to follow the above legal principles and apply them in this case. (16CT 4200.) When the court asked during voir dire examination that she select a descriptive category for herself, Prospective Juror No. 74 responded, as “pretty much a three.” (SRT 1356:6-7.) The following colloquy ensued. The Court: Pretty much a three. Are you a three? (SRT 1356:8-9.) Prospective Juror No. 74: Yeah, I would say so. It would have to be for me to put someone to death, the aggravating circumstance be a lot and there would be like no mitigating evidence. So it’s a good chancethat I am three. (SRT 1356:10-14.) The Court: Well, but you are saying that you could put somebodyto death.? (SRT 1356:15-16.) Prospective Juror No. 74: It would have to be really harsh circumstances. (SRT 1356:17-18.) The Court: Thatis all right. It’s up to the People to persuade you. [{] I am saying that number threes are people whosay, Judge, I know myself. I could never, regardless of whatthe evidence was, put somebody to death. [{] Are you that person? (SRT 1356:19-24.) Prospective Juror No. 74: Well, I could be a four with three tendencies. (SRT 1356:25-26.) The Court: Yes, and we’re not allowing that this morming. No four with three tendencies. But I understand what you are saying. [{] So are you a three or a four? [9] You soundlike you are a four? (SRT 1356:27-1357:3.) Prospective Juror No. 74: I could be a four. (SRT 1357:4.) The Court: Yeah, I think you are a four. But the prosecutor is taking a note here. Okay. (SRT 1357:5-6.) 79 Later, during questioning by counsel for Flores (Mr. Bisnow), Prospective Juror No. 74 reaffirmed that she could carry out her duties as a juror. Mr. Bisnow: Number 74? Where are you? Okay. You had some problems, but you think that you could be a neutral juror here? (SRT 1384:20-22.) Prospective Juror No. 74: Oh, yeah. (SRT 1384:23.) Mr. Bisnow: Okay. In both not only the guilt phase, but also the penalty phase? (SRT 1384:24-25.) Prospective Juror No. 74: Like I said before, I would lean towards, you know,like [sic] instead of death, but if I thought the aggravating was enough, then you know it would be hard, but I could make the decision. (SRT 1384:26- 1385:1.) In response to questioning by the prosecutor (Mr. Levine), replete with graphic descriptions of jurors having to return with a death verdict to the courtroom filled with the defendant’s family,° Prospective Juror No. 74, said, “I don’t think I could do it.” (SRT 1388:11-12.) Later, in formulating the list of prospective jurors to be excused for cause, the trial court said: “And in addition to those jurors, I would add Number 74 whohasvaccilated [sic] between being a three and a four, and I think Mr. Levine pushed her over or got her to commit to being °2 The prosecutor said, for example: “Is there anybody that has listened to what I’ve said andstarting 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?” (SRT 1387:1-17.) 80 a three.” (SRT 1396:17-20.) The court thereupon excused Prospective Juror No. 74 for cause over objection of defense counsel. (3RT 898; 5RT 1396, 1397.) As appellant explains in the next section, the law is settled that a prospective juror may be challenged for cause based upon her views regarding capital punishment only if those views would prevent or substantially impair the performance of her duties as a juror in accordance with her instructions and oath. (Wainwright v. Witt (1985) 469 U.S. 412, 424; People v. Stewart (2004) 33 Cal.4th 425.) As the foregoing shows, Prospective Juror No. 74 expressed both confusion and reservations toward the death penalty, but consistency in her representations that her feelings about the death penalty would not impair her ability to be a fair and impartial juror in the case and that she could weigh aggravating and mitigating evidence and reach a determination about penalty. Thetrial court therefore erred in excusing Prospective Juror No. 74 for cause. C. The Relevant Law and Application to This Case The Sixth and Fourteenth Amendments to the United States Constitution guarantee the right of trial by jury to criminal defendants in state courts. (Duncan v. Louisiana (1968) 391 U.S. 145, 149-150.) This right is also secured byarticle I, section 16, of the California Constitution. (Cal. Const., art. I, § 16.) In Witherspoon v. Illinois (1968) 391 U.S. 510, the United States Supreme Court held that Illinois infringed a capital defendant’s right under the Sixth and Fourteenth Amendments to trial by an impartial jury 81 when it excused for cause all those members of the venire who expressed conscientious objections to capital punishment. Under Witherspoon’s standard, jurors may be excluded from the jury for cause only if they make it unmistakably clear that they would automatically vote against death without regard to the evidence before them orif their attitude toward the death penalty would prevent them from making an impartial decision as to guilt. Ud., at p. 522 fn. 21.) In Adamsv. Texas (1980) 448 U.S. 38, the Court revisited the Witherspoon standard and the iterations of that standard in the cases that followed it. Adams explained that Witherspoon and its progeny established the general proposition that a juror may not be challenged for cause based on his views about capital punishment unless those views would prevent or substantially impair the juror’s performance of his duties in accordance with his instructions and his oath. (Adams v. Texas, supra, 448 U.S.at p. 45.) One of the potential jurors in Adams was excluded based on his statement, “Well, I think it probably would [affect my deliberations] because after all, you’re talking about a man’s life here. You definitely don’t wantto takeit lightly.” (d., at p. 50 fn. 7.) The Court found that the juror’s acknowledgment was meant only to indicate the juror would be more emotionally involved or would view his task with greater seriousness and gravity. It did not demonstrate that the prospective juror was unwilling or unable to follow the law or obey his oath. (/d., at p. 49.) The juror’s refusal was thus constitutional error. In Wainwright v. Witt (1985) 469 U.S. 412, the Court reaffirmed the standard articulated in Adams was proper and clarified its decision in Witherspoon. The standard for excusing a juror for cause based 82 on death penalty views is whether the juror’s views would “prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath.” (Wainwright v. Witt, supra, 469 U.S. at p. 424.) Witt observed that the Adams standard is proper becauseit is “in accord with traditional reasons for excluding jurors and with the circumstances under which such determinations are made.” (/d., at p. 423.) “Witherspoon is not grounded in the Eighth Amendment’s prohibition against cruel and unusual punishment, but in the Sixth Amendment. Here, as elsewhere, the quest is for jurors who will conscientiously apply the law and find the facts. That is what an ‘impartial’ jury consists of... .” (bid.) More recently, in Uttecht v. Brown (2007) 551 U.S. 551, the United States Supreme Court reiterated the applicable principles as follows: “First, a criminal defendant has the right to an impartial jury drawn from a venire that has not been tilted in favor of capital punishment by selective prosecutorial challenges for cause. (Witherspoon [v. Illinois (1968)], 391 U.S., at 521... . Second, the State has a strong interest in having jurors who are able to apply capital punishment within the framework state law prescribes. [Wainwright v.] Witt, [supra,] 469 U.S., at 416. . . . Third, to balance these interests, a juror whois substantially impaired in his or her ability to impose the death penalty under the state-law framework can be excused for cause; but if the juror is not substantially impaired, removal for cause is impermissible. Jd., at 424... . Fourth, in determining whether the removal of a potential juror would vindicate the State’s interest without violating the defendant’s right, the trial court makes a judgment based in part on the demeanorofthe juror, a judgment owed deference by reviewing courts. Id., at 424-434 ....” (Uttecht v. Brown, supra, 551 U.S.at p. 9.) 83 This Court’s decisions are consistent with the standard articulated by the United States Supreme Court. In People v. Crittenden (1994) 9 Cal.4th 83, 121, this Court held that a prospective juror may be challenged for cause based upon his or her views regarding capital punishment only if those views would “prevent or substantially impair” the performance of the juror’s duties as defined by the court’s instructions and the juror’s oath. . In People v. Kaurish (1990) 52 Cal.3d 648, 699, this Court recognized that a prospective juror may not be excluded for cause simply because his or her conscientious viewsrelating to the death penalty would lead the juror to impose a higher threshold before concluding that the death penalty is appropriate or because such views would makeit very difficult for the juror ever to impose the death penalty. In People v. Stewart (2004) 33 Cal.4th 425, this Court elaborated upon the discussion in Kaurish. “Because the California death penalty sentencing process contemplates that jurors will take into account their own values in determining whether aggravating factors outweigh mitigating factors such that the death penalty is warranted, the circumstance that a juror’s conscientious opinions or beliefs concerning the death penalty would makeit very difficult for the juror ever to impose the death penalty is not equivalent to a determination that such beliefs will ‘substantially impair the performance of his [or her] duties as a juror’ under Witt, supra, 469 U.S. 412.” (People v. Stewart, supra, 33 Cal.4th at p. 447.) Stewart further explained, “A juror might find it very difficult to vote to impose the death penalty, and yet such a juror’s performancestill would not be substantially impaired under Witt, unless he or she were unwilling or unable to follow 84 the trial court’s instructions by weighing the aggravating and mitigating circumstances of the case and determining whether death is the appropriate penalty under the law.” (/bid.) In People v. Pearson (S120750; filed January 9, 2012; 2012 Cal.Lexis 2), the trial court, acting in express reliance on People v. Guzman (1988) 45 Cal.3d 915, excused a prospective juror after finding the juror held “equivocal views on capital punishment.” This Court rejected such a reading of Guzman. Citing Uttrecht, supra, this Court noted: “Guzman does not stand for the idea that a person is substantially impaired for jury service in a capital case becausehis or her ideas about the death penalty are indefinite, complicated or subject to qualifications, and we do not embrace such arule. As the high court recently reminded us, ‘a criminal defendant has the right to an impartial jury drawn from a venire that has not been tilted in favor of capital punishment by selective prosecutorial challenges for cause.” (Uttecht v. Brown, supra, 551 U.S. at p. 9.) Personal opposition to the death penalty is not itself disqualifying, since ‘[a] prospective juror personally opposed to the death penalty may nonetheless be capable of following his oath and the law.’ (People v. Kaurish (1990) 52 Cal.3d 648, 699.) It follows the mere absence of strong, definite views about the death penalty is not itself disqualifying, since a person without strong general views may also be capable of following his or her oath and the law.” (People v. Pearson, supra, slip opn., at p. 51; 2012 Cal. LEXIS 2 (Cal. Jan. 9, 2012).) This Court further observed that the exclusion of prospective jurors holding equivocal views on capital punishment results in an unconstitutionally biased selection process. “To exclude from a capital jury 85 all those who will not promise to immovably embrace the death penalty in the case before them unconstitutionally biases the selection process. So long as a juror’s views on the death penalty do not prevent or substantially impair the juror from “conscientiously consider[ing] all of the sentencing alternatives, including the death penalty where appropriate” (People v. Rodrigues (1994) 8 Cal.4th 1060, 1146), the juror is not disqualified by his or her failure to enthusiastically support capital punishment.” (People v. Pearson, supra, slip opn., at p. 53; 2012 Cal. LEXIS 2 (Cal. Jan. 9, 2012).) Here, Prospective Juror No. 74’s questionnaire responses reflected a juror who had no fixed opinion about the death penalty in general, but who had concerns about herself imposing a penalty that would “end someone’s life.” Juror No. 74 said in her questionnaire that she would be able to vote for death without regard for her views on the death penalty if, after hearing all of the evidence, she thought death was the appropriate penalty. She wanted to hear aggravating and mitigating evidence during the penalty phase. She said she would not always vote for death regardless of the mitigating evidence. She said her feelings about the death penalty would not impair her ability to be a fair and impartial juror in the case. Further, she stated that she understood the legal principles that would govern the trial as they were set forth in the questionnaire and she agreed to follow and apply them inthe case. During voir dire examination by the court and then by defense counsel, Juror No. 74 said, “It would have to be really harsh circumstances,” but that she could impose the death penalty. “Like I said before, I would lean towards, you know,like [sic] instead of death, but if I thought the aggravating was enough, then you know it would be hard, but I 86 could make the decision.” Then, in response to the prosecutor’s emotionally fraught scenario involving the return of a death verdict before the defendant’s mother, Juror No. 74 said, “I don’t think I could do it.” In sum, Prospective Juror No. 74 stated a personal conscientious objection to imposing the death penalty, but stated and restated that if “the aggravating was enough, . . . it would be hard, butI could make the decision.” It was only after the prosecutor had woven a hypothetical aimed at eliciting an emotional rather than a rational response that Juror No. 74 hesitated and said, “I don’t think I could doit.” In all other ways, however, Juror No. 74’s_ responses persuasively demonstrated an ability to set aside her personal reservations about imposing the death penalty, to weigh and consider the aggravating and mitigating evidence, and to make an evidence-based determination about whether death is the appropriate penalty. Juror No. 74 affirmed by her questionnaire responses that she understood and agreed to abide by the legal principles that governed the trial and that she would be able to vote for death if, after hearing all of the evidence, she found death to be the appropriate penalty. And, she stated that her feelings about the death penalty would not impair her ability to be a fair and impartial juror in the case. Decisions of the United States Supreme Court and of this Court, as set forth above, make it clear that a prospective juror’s personal conscientious objection to the death penalty is not a sufficient basis for excluding that person under Witt, supra. Juror No. 74’s commentthat “for me to put someone to death, the aggravating circumstance [would need] to be a lot,” is not a sufficient basis for exclusion. In Stewart, this Court 87 recognized that “A juror might find it very difficult to vote to impose the death penalty, and yet such a juror’s performance still would not be substantially impaired under Witt, unless he or she were unwilling or unable to follow the trial court’s instructions by weighing the aggravating and mitigating circumstances of the case and determining whether death is the appropriate penalty under the law.” (People v. Stewart, supra, 33 Cal. 4th at p. 447; see also People v. Kaurish, supra, 52 Cal.3d at p. 698.) A review of Juror No. 74’s responses reveal a juror whose feelings about the death penalty would not impair her ability to be a fair and impartial juror; who wanted to hear aggravating and mitigating evidence; who would weigh and consider all penalty evidence and who would carry out her obligations to impose a death sentenceifthe “aggravating was enough.” Under the circumstances present here, Juror No. 74’s brief emotional response to the prosecutor’s hypothetical, when considered in conjunction with the remainder of Juror No. 74’s responses, is not sufficient to establish a basis for exclusion for cause. Accordingly, the trial court’s finding that Juror No. 74’s views on imposition of the death penalty would prevent or substantially impair the performance or her duties as a juror is not supported by substantial evidence. D. Reversal of the Penalty Judgment Is_ the Appropriate Remedy because Execution of the Death Sentence Would Deprive Appellant of His Life without Due Process of Law By erroneously excusing Juror No. 74 for cause, the trial court denied defendant the impartial jury to which he wasentitled under the 88 Sixth and Fourteenth Amendments to the United States Constitution. (Uttecht v. Brown, supra, 551 U.S. at pp. 6, 9.) In Witherspoon, the United States Supreme Court held that “a State may not entrust the determination of whether a man should live or die to a tribunal organized to return a verdict of death.” (Witherspoon v. Illinois, supra, 391 U.S. at p. 521, fn. omitted.) Witherspoon held that under such circumstances, the death sentence must be reversed. “Specifically, we hold that a sentence of death cannot be carried out if the jury that imposed or recommended it was chosen by excluding veniremen for cause simply because they voiced general objections to the death penalty or expressed conscientious or religious scruples against its infliction. No defendant can constitutionally be put to death at the hands of a tribunal so selected.” (Witherspoonv.Illinois, supra, 391 U.S.at pp. 521- 523.) In ordering the reversal, the Court said: “Whatever else might be said of capital punishment, it is at least clear that its imposition by a hanging jury cannot be squared with the Constitution. The State ofIllinois has stacked the deck against the petitioner. To execute this death sentence would deprive him ofhis life without due process of law.” (/d., at p. 523.) In Gray v. Mississippi (1987) 481 U.S. 648, the Supreme Court said: “Because the Witherspoon-Witt standard is rooted in the constitutional right to an impartial jury (Wainwright v. Witt, supra, 469 U.S. at p. 416), 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.” Chapman v. California (1967) 386 U.S. 18, 23. The right to an 89 impartial adjudicator, be it judge or jury, is such a right. (/d., at 23, n. 8.)” (Gray v. Mississippi, supra, 481 U.S. at p. 668; see also Davis v. Georgia (1976) 429 U.S. 122, 123; United States v. Chanthadra (10th Cir. 2000) 230 F.3d 1237, 1270-1272.) This Court has recognized that the controlling decisions of the Supreme Court compel the automatic reversal of the death sentence wjem a prospective juror is excused without satisfying the Witt standard. (People v. Ashmus (1991) 54 Cal.3d 932, 962; People v. Heard (2003) 31 Cal.4th 946, 966; People v. Stewart, supra, 33 Cal.4th at p. 454.) “Furthermore, the governing high court decisionsalso establish that although such an error does not require reversal of the judgment of guilt or the special circumstance findings, the error does compel the automatic reversal of defendant’s death sentence, and in that respect the error is not subject to a harmless-error rule, regardless whether the prosecutor may have had remaining peremptory challenges and could have excused Prospective Juror [74].” (People v. Heard, supra, 31 Cal.4th at p. 966.) For the reasonsset forth above, appellant respectfully submits that the record does not support the trial court’s excusal of Prospective Juror No. 74 for cause under the governing legal standard (Wainwrightv. Witt, supra, 469 U.S. at p. 424) and that this error requires reversal of appellant’s death sentence without inquiry into prejudice. 90 Guilt Phase Issues TI. THE TRIAL COURT COMMITTED FEDERAL CONSTITUTIONAL ERROR WHEN IT ERRONEOUSLY INSTRUCTED THE JURY THAT A PERSON WHO AIDS AND ABETS IS “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. INTRODUCTION Appellant was convicted by the jury of the first degree murders of John Diaz (count 42) and Arturo Madrigal (count 45) and of the attempted willful, deliberate, and premeditated murder of Fernando Gutierrez (count 46.) The prosecution’s evidence showed that John Diaz, a member of a Monrovia gang, was shot and killed in Baldwin Park by nine millimeter gunfire while riding on the handlebars of a bicycle pedaled by his brother Paul Gonzales. (6RT 1637-1639.) Gonzales identified codefendant Flores as the shooter and passengerin a black SUV that made two U-turns to drive past Diaz and Gonzales andtestified that Flores yelled out “Where you from?” just before shooting. Gonzales made no identification of the vehicle’s driver or of appellant. (6RT 1640-1643, 1649-1650, 1667, 1673, 1675, 1684.) The prosecution also presented Flores’s extrajudicial statement confirming that he was the shooter. When Flores and appellant 9] acted as their own counsel, they met with the prosecutor for jailhouse interviews. At that time, Flores told the prosecutor that he fired five shots from a nine millimeter firearm and killed a male riding on the handlebars of a bicycle. (DPSuppHI, SuppCT 50:9-10, 12-14.) Flores also told Levine that appellant was the driver, at which point the transcript reflects that appellant laughed andsaid, “Catch me?” (DPSupplIlI, SuppCT 68:5-7, 9- 10.) The shooting of Diaz wasrevisited in a subsequent meeting between the prosecutor and the pro per defendants. On this occasion, appellant said he was driving a “four-runner” and said Diaz had suffered a shot “in front of his mouth.” (DPSuppIIlI, SuppCT107:11, 13.) Flores again confirmed that he was the shooter and appellant the driver in this incident. (DPSuppllIl, SuppCT 109:13-20.) The prosecution’s evidence regarding the shooting of Arturo Madrigal and Fernando Gutierrez showed that Madrigal was parking his Chevrolet Blazer when a car stopped alongside and someone called out, “Where you from?” Gutierrez, who was Madrigal’s passenger, said, “We’re not from nowhere.” (8RT 2028-2031.) Gutierrez told police there were four male Hispanics with shaved heads in the car and that the passenger fired shots that killed Madrigal. (8RT 2035-2036.) The killing bullet was determined to be a nine millimeter. (12RT 2721.) During their jailhouse interviews with the prosecutor, Flores and appellant also spoke of a shooting involving a Blazer. Flores said he was the shooter and appellant said he drove the car. (DPSupplIII, SuppCT 110:15-19, 21.) Flores said he shot the driver once in the face, once in the neck and that the passenger ran. Appellant agreed. (DPSuppllI, SuppCT 112:10-13, 20-21; 113:4, 8-10.) Asked for the reason for the shooting, 92 appellant replied, “He was a gang member, man,” and described the act as “a vandal — it’s a — it’s a vandal type of thing. You’re driving around your neighborhood looking for people to kill.” (DPSuppIII, SuppCT 14:10-17.) Appellant said Flores used “a different 9 millimeter” in this incident. (DPSupplIll, SuppCT 116:15-18.) In arguing appellant’s culpability for these crimes, the prosecutor described appellant’s role as the driver in these cases and said a driver aids and abets in a drive-by shooting and is just as culpable as the shooter. The prosecutor further argued that “[p]rincipals include those who directly and actively commit the act constituting the crime, and those who aid and abet in the commission of the crime.” The prosecutor said, “Each principal, regardless of the extent or mannerofparticipation[,] is equally guilty.” (13RT 2868; italics added.) Thetrial court instructed the jury similarly, stating that those whoaid and abet a crime and those whodirectly perpetrate the crime are principals and equally guilty of that crime. (CALJIC No. 3.00; 17CT 4515; 13RT 2958.) That instruction incorrectly stated the law when it said 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. Rather, an aider and abettor’s guilt in a homicide prosecution, not involving felony murder, is based on the combinedacts ofall the principals, but on the aider and abettor’s own mens rea. An aider and abettor may therefore be culpable for a lesser crime than the direct perpetrator andit is error to instruct the jury to the contrary. (People v. McCoy (2001) 25 93 Cal.4th 1111, 1120; People v. Samaniego (2009) 172 Cal.App.4th 1148, 1164-1165; People v. Nero (2010) 181 Cal.App.4th 504, 515-518.) Appellant was entitled to have the jury consider his culpability in light of his own mensrea in deciding his guilt of the crimes of murderor attempted premeditated murder and, if found liable for murder or attempted murder, in determining the degree of murder or attempted murder for which heis liable. (People v. Concha (2009) 47 Cal.4th 653, 663.) Defense counsel did not object with specificity to this instruction, but this failure has no legal consequence. 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.) Moreover, because the facts of these crimes demonstrate instances in which the liability of the actual killer may have been greater than the liability of appellant (the prosecution’s proof of appellant’s acts and mens rea at the time of the individual shootings was sparse and appellant’s post-crime statements do not necessarily prove he possessed the joint operation of act and mental state required for proof of culpability), the instructional error may was not harmless beyond a reasonable doubt. 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.) The effect of such violation is measured against the harmless error test of Chapmanv. California (1967) 386 U.S. 18, 24, which asks whether it has been 94 demonstrated beyond a reasonable doubt that the jury verdict would have been the samein the absence of the misinstruction. B. THE INSTRUCTIONS REGARDING THE LIABILITY OF PRINCIPALS GIVEN TO APPELLANT’S JURY The trial court instructed the jury in the language of the pattern CALJIC instructions, defining a principal and the liability of a principal (CALJIC No. 3.00) and defining an aider and abettor (CALJIC No. 3.01), as follows: Persons who are involved in committing a crime are referred to as principals in that crime. Each principal, regardless of the extent or manner of participation[,] is equally guilty. Principals include: 1. Those who directly and actively commit the act constituting the crime, or 2. Those who aid and abet the commission of the crime. (CALJIC No. 3.00; 17CT 4515; 13RT 2958.) A person aids and abets the commission of a crime whenheorshe: (1) With knowledge of the unlawful purpose of the perpetrator, and (2) With the intent or purpose of committing or encouraging orfacilitating the commission ofthe crime, and (3) By act or advice aids, promotes, encourages or instigates the commission of the crime. A person who aids and abets the commission of a crime need not be present at the scene of the crime. Mere presence at the scene of a crime which does not itself assist the commission of the crime does not amount to aiding and abetting. 95 Mere knowledgethat a crime is being committed and the failure to prevent it does not amount to aiding and abetting. (CALJIC No. 3.01; 17CT 4516; 13RT 2958-2959.) Thedirective of these instructions is clear. The prosecution’s evidence showed and the prosecutor argued that codefendant Flores shot and killed John Diaz and Arturo Madrigal and attempted to shoot andkill Fernando Gutierrez with premeditation and deliberation or preceded by lying in wait or by discharging a firearm with the specific intent to kill from vehicles driven by appellant. (13RT 2865-2867, 2873-2874.) If the jury found that appellant acted as an aider and abettor, then it was bound by the instructions to find him equally guilty of first degree murder withoutfirst determining whether appellant acted with the requisite mens rea for murder and the requisite mens rea for the Penal Code section 189 elementsforfirst degree murder, i.e., murder committed with premeditation and deliberation or preceded by lying in wait or by discharging a firearm with the specific intent to kill from a vehicle. The instructions on an aider and abettor’s liability incorrectly stated the law. An aider and abettor’s guilt in a murder prosecution is based on the combinedacts ofthe principals, but on the aider and abettor’s personal mental state, as appellant explains below. None ofthe instructions regarding the liability of principals corrects the misinstruction and misdirection. 96 Cc. THE EQUALLY GUILTY LANGUAGE OF THE AIDER AND ABETTOR INSTRUCTIONS MISDIRECTED THE JURY IN DETERMINING APPELLANT’S CULPABILITY FOR MURDER. AN AIDER AND ABETTOR’S GUILT IN A MURDER PROSECUTION IS BASED ON THE COMBINED ACTS OF THE PRINCIPALS, BUT ON THE MENTALSTATE OF THE AIDER AND ABETTOR. Recently, in People v. Concha (2009) 47 Cal.4th 653, our Supreme Court was asked to determine whether a defendant may be liable for first degree murder when his accompliceis killed by the intended victim in the course of an attempted murder. In concluding that the defendant in such circumstances may be convicted of first degree murder if he personally acted willfully, deliberately, and with premeditation during the attempted murder, the Court relied on the theory of liability known as provocative act murder, which the Court described as “not an independent crime with a fixed level of liability,” but rather “simply a type of murder.” (/d., at p. 663.) Appellant was not prosecuted on a theory of provocative act murder and does not rely on Concha in that respect. What Concha does provide is a helpful path to understanding the extent and nature of accomplice liability in the context of a murder prosecution and an analytical framework that, when followed, shows whythetrial court’s instruction in this case that the actual killer and the aider and abettor are “equally guilty” waslegally incorrect. Appellant relies on that particular aspect of Concha’s analysis. Concha, in important part, relied and built upon the Court’s earlier decision in People v. McCoy (2001) 25 Cal.4th 1111.°? In McCoy, the Court held that in somesituations, an aider and abettor may be guilty of °8 Both Concha and McCoy were authored by Chin,J. 97 a greater homicide-related offense than the actual perpetrator, reasoning that an aider and abettor was liable for the combined acts of the aider and abettor and the direct perpetrator, but that his guilt was based on his own mental state. Ud., at p. 1118.) Appellant first summarizes Concha’s conclusion in the words of the Court and then discusses the analytical framework that resulted in that conclusion. “... [A] defendant is liable for murder when the actus reus and mens rea elements of murder are satisfied. The defendant or an accomplice must proximately cause an unlawful death, and the defendant must personally act with malice. Once liability for murder is established in a provocative act murdercase, or in any other murdercase, the degree of murderliability is determined by examining the defendant’s personal mens rea and applying section 189. Where the individual defendant personally intends to kill and acts with that intent willfully, deliberately, and with premeditation, the defendant may be liable for first degree murder for each unlawful killing proximately caused by his or her acts, including a provocative act murder. Where malice is implied from the defendant’s conduct or where the defendant did not personally act willfully, deliberately, and with premeditation, the defendant cannot be held liable for first degree murder.” (People v. Concha, supra, 47 Cal.4th at pp. 663-664; italics in the original; boldface added.) The Court began its analysis in Concha by defining murder, its required acts and mental states, and the effect of adding accomplice liability to the calculus. 98 “Murder is the unlawful killing of a person with malice aforethought. ([Pen. Code], § 187.) Murder includes both actus reus and mens rea elements. To satisfy the actus reus element of murder, an act of either the defendant or an accomplice must be the proximate cause of death. [Citations omitted.]” (People v. Concha, supra, 47 Cal.4th at p. 660.) “For the crime of murder, as for any crime other than strict liability offenses, ‘there must exist a union, or joint operation of act and intent, or criminal negligence. ([Pen. Code], § 20.)” (People v. Concha, supra, 47 Cal.4th at p. 660.) “To satisfy the mens rea element of murder, the defendant must personally act with malice aforethought. ([People v.] McCoy [(2001) 25 Cal.4th 1111,] 1118.)” Wd., at p. 660; italics added.) In People v. McCoy, upon which Concha relied, the Court recognized that an aider and abettor may harbor a greater mental state than that of the direct perpetrator and thus be culpable of a greater crime than the actual perpetrator. The Court based this conclusion on the premise that an aider and abettor’s mensrea is personal and may be different from that of the direct perpetrator. (People v. McCoy, supra, at pp. 1117-1118.) “<