MANRIQUEZ

Petitioner’s Response Brief re Referee’s Report

Cal.September 19, 2014

SUPREME COURT COPY oe sss FILED No. 8141210 SE Frank A. McGuire CI IN THE SUPREME COURT OF THE Deputy STATE OF CALIFORNIA Ine (Related to People». Manriques Supreme Court No. SO38073) ABELINO MANRIQL (Los Angeles County Superior | Court No. WANUEEAE) OnMabeas Corpus, | Hon. Robert Armstrong, | Presiding RESPONSE TO RESPONDENT'S BRIEF ON MERITS AND EXCEPTIONS TO REFEREF’S REPORT “Jol R, Reese, Bar No, 37653 john.rcese@bingham.com Robert A. Brundage, Bar No, 159890 robert brundage@bingham.com Nitin Jindal, Bar No. 257850 nitin jindal@bingham.com Monica A. Temandez, Bar No. 280195 monica hernandez@bingham.com BINGHAM MCCUTCHEN LLP ‘Three Embarcadero Center San Francisco, California 94111-4067 Telephone: 415.393.2000 Facsimile: 415.393.2286 Atlomeys for Petitioner Abelino Manriquez. DEATH PENALTY No. $141210 IN THE SUPREME COURT OF THE STATE OF CALIFORNIA In re (Related to People v. Manriquez, Supreme Court No. S038073) ABELINO MANRIQUEZ, (Los Angeles County Superior Court No. VA004848) On Habeas Corpus. Hon. Robert Armstrong, Presiding RESPONSE TO RESPONDENT?’S BRIEF ON MERITS AND EXCEPTIONS TO REFEREE’S REPORT *John R. Reese, Bar No. 37653 john.reese@bingham.com Robert A. Brundage, Bar No. 159890 robert.brundage@bingham.com Nitin Jindal, Bar No. 257850 nitin.jindal@bingham.com Monica A. Hernandez, Bar No. 280195 monica.hernandez@bingham.com BINGHAM MCCUTCHENLLP Three Embarcadero Center San Francisco, California 94111-4067 Telephone: 415.393.2000 Facsimile: 415.393.2286 Attorneys for Petitioner Abelino Manriquez TABLE OF CONTENTS I. INTRODUCTIONoccecscscesceseeseesecsessecseeeeseesssessessecssensenssennees 1 I. THE UNDISPUTED LEGAL FRAMEWORK APPLICABLE FOR THIS CASEwu...cccccceeseeesessssseeeseeseesees 3 Hl. . JUROR C.B. WAS ACTUALLYBIASED...ecccecceeeseeees 5 A. Respondent’s Reliance On C.B.’s Claim That She Was Not Biased Is Misplaced 00.00... ceesesessescecceeeteeeerseeeseseseses 6 B. Respondent, Like The Referee, Completely Ignores The Bias Inquiry occseecsecessereeenseeessceeeeeceseeecaeceeeees 1] IV. RESPONDENT CANNOT PROVE THERE WAS NO SUBSTANTIAL LIKELIHOOD THAT C.B. WAS BIASED 0... ccescceeceeeseseeeecsnesecscesecseeasesaseneeaseaeeaaeeeseresateneesss 13 V. RESPONDENTFAILS TO CURE THE DEFECTSIN THE REFEREE’S FINDING THATC.B.’S FAILURE TO DISCLOSE HER ABUSE DURING VOIR DIRE WAS UNINTENTIONAL .L..ceccececeecseseceseceeceseesserseesacesaneeaneeaeeeaees 16 A. The Referee’s Finding That C.B. Provided Credible ReasonsFor Failing To Disclose Her History Of Abuse And Rape Is Unsupported... ceeeesseeesteeeteeeenes 17 l. C.B.’s Admissions That The Questions Were Not Limited To Any TimePeriod, But That She Nonetheless Interpreted Them To Relate Only To Adulthood, Are Irreconcilable.........c..eee 17 2. C.B.’s Statements That Abusing And Raping A Child Are Crimes And Acts Of Violence, But That Her Own Abuse And Rape Are Not, Are Trreconcilable 00.0.0... .cccesccsscstecsesseeseesseeessnecasseseneeees 18 3. C.B.’s Claim That She Failed To Recall Her Childhood Abuse And Rape Though She Carefully Thought About Her Answers To The Questionnaire Is Implausible 0.0.0... ceeeeeeseetseeeees 20 B. RespondentFails To Cure The Referee’s Erroneous Finding That C.B. Did NotIntentionally Conceal Her History Of Abuse On HerJuror Questionnaire................... 21 l. C.B.’s Statements Post-Verdict Show That She Intentionally Concealed Her History of Abuse On Her Juror Questionnaire ............ccceceseseeceeeenneeeeees 21 2. Respondent’s Cases Do Not Cure The Referee’s Defective Finding 0.0.0... cccccsscscesscsecesssessessscecseens 23 VIL CONCLUSION o.oo ccesseeseseneeeseeeseteseeessesesseessesseessesesesensersees 24 il TABLE OF AUTHORITIES Page(s) Cases Bayramoglu v. Estelle (9th Cir. 1986) 806 F.2d 880 ocesessssessessessesecsesssssecsssssecesssceeseeeases 12 In re Boyette (2013) 56 Cal.4th 866 0... ccccssccsecssesseccssectscsssersesecssesssestrecseeeaes passim Burton v. Johnson (10th Cir. 1991) 948 F.2d 1150oeccccsceccsecssesesssessscusssensteseeeens 12 In re Carpenter (1995) 9 Cal.4th 634oocssceccscesssscessecsscssscesseeseesseesscseseesseesssesenennes 6 Ghirardo vy. Antonioli (1994) 8 Cal.4th 791 oocceccsesseseteeesseesesssscssescssesesesecsteseseseseessasebays 6 Griffin v. United States © (1991) 502 US. 46eeeccccecesseecscsssssessesessesseseeesseessecsessseecssscssoessseues 8 In re Hamilton (1999) 20 Cal4th 273 ooececsssessetesteesecsseeseessesenscesesseeseeeeserees 1,4, 23 In re Hitchings (1993) 6 Cal4th 97 ooo eeecsccescessessscsseessesssecsseeeseneessasseeseatessseues 14, 16 Irvin vy. Dowd (1961) 366 U.S. 717eeccsccsnetecseeseneeseceeessesseceessecsecescsseaeesessesssceseans l Norris v. State (1998) 230 Ga.App. 492 oo. eeccccesectcecseseessecsscesssesecesscsscseessssesesseeeeses 12 People v. Blackwell (1987) 191 CalApp.3d 925 oecccccsccctessesssecssessssersessessessesesesens 12, 23 People v. Cissna (2010) 182 Cal.App.4th 1105 ooccesceessessscessesssecsecsssssssssseessenssseaes 7 People v. Diaz (1984)152 Cal.App.3d 926oeeeccceseeseecseessseseesssccssessessessseescesesenses 15 People v. Guiton (1993) 4 Cal4th L116.cecsecessessessesssseecsseesesssccsesssesssssssseasseseaeeass 8 ill People v. Harris (2008) 43 Cal.4th 1269oeecsessnecseessecseenestestseeeseeessesseeseessesneses 14 People v.. Hensley (2014) 59 Cal.4th 788 ooccccessssesessscsscsssessssecsssssssssessssseaseseeeaees 4,11 People v. Hughes (2002) 27 Cal.4th 287 ooo cccccccscessssssssesscsscesscesssecsscssssssseecsesseeesessesseenees 8 People v. Marshall (1990) 50 Cal.3d 907 oooecececsceessecseeecersnseceseesesereeeseeeseeseeeesesessesns 14 People v. Merriman (2014) 60 Cal.4th1eeccssecetsecsseeseeseeessseceesessesseeseseeceeeneeeeets 16 People v. Nesler (1997) 16 Cal.4th S61 oeccecseseeesseserstesssesenerenssasssessesssssetees 1, 12, 13 People v. Oliver CL. App. 1977) 50 IlLApp.3d 665... eeeeesccsseeseeeeceeeesecenessseseeseaeeats 12 People v. Ray | (1996) 13 Cal.4th 313eceecesesesssesneceseecaeeecseseeeseeeesatseresseseaeeers 22 People v. Thomas (1990) 218 CalApp.3d 1477 vo. eecscccsscsccsseceseeeecessecsseseeenseseesseceneeens 12 People v. Thomas (2012) 53 Cal.4th 771.........sesseeseececensecaeesseecsneceseeaeeneseaeeseeseseseeseeseareneenes 6 People v. Weatherton © (2014) 59 Cal4th 589.cccsessscssseseseessssessssesssssssesssesacseseseseessesseaes 13 Reynolds v. United States (1878) 98 U.S. 145 oeescseeessccsscesseaceeeseecsessecsesssesseeesseesnesaesseseeaneseeas 1 Smith v. Phillips (1982) 455 U.S. 209 oiecccsessecseeeesresseeecseensceesecsessesaressesaesaeens passim Smith v. State (Fla. 2009) 28 S0.3d 838 oo... ccccecsssececsssccccesseccsecesseceseecesesseseessrsseeess 15 State v. LaRue (Hawaii 1986) 722 P.2d 1039.0... cccccccccesessscecesscecessseeeescesseneseens 12, 15 Tinsley v. Borg (9th Cir. 1990) 895 F.2d 520oececeneeeneecseceeensesateneceaeevseseaeeeaeeneeees 15 iv United States v. Allsup (9th Cir, 1977) 566 F.2d 68 uu... cccccecssscecsssseceessersessssseeeeeensccsssstevesssaee 15 United States v. Eubanks (9th Cir. 1979) 591 F.2d 513 veeccessccsnscceseecssseccesesesessacesseceaeecsesecennes 12 United States v. Gonzalez (9th Cir. 2000) 214 F.3d 1109ececsccssssccssecessscesseecessesseeesesseees 14 United States v. Martin (11th Cir, 1985) 749 F.2d 1514 oo. ecccssccccesssecessteeeseesseesssscesssenesss 12 United States v. Sampson (D. Mass. 2011) 820 F.Supp.2d 151oeeecsesesscesecesteeceeetsssssennesenees 12 Statutes California Penal Code § 1181, subdivision 7............ccccecsesecesseessecsneseeeseers 25 I. INTRODUCTION Petitioner was sentenced to death by an unconstitutionally biased jury. Respondent recognizes that the United States and California Constitutions require an impartial jury, one in which “‘every memberis capable and willing to decide the case solely on the evidence before it.’” | (Respondent’s Brief on Merits and Exceptions to Referee’s Report (“RB’’) at 7-8, quoting Jn re Hamilton (1999) 20 Cal.4th 273, 294; see also Smith v. Phillips (1982) 455 U.S. 209, 217.) Without dispute, the juror must “lay aside [her] impression or opinion and rendera verdict based on the evidence presented in court” (U/rvin v. Dowd (1961) 366 U.S. 717, 722-23, citations omitted; People v. Nesler (1997) 16 Cal.4th 561, 580-81, plurality opinion) and “those strong and deep impressions which close the mind against the testimonythat may be offered in opposition to them, which will combatthat testimony andresist its force” make the juror biased. (Reynolds v. United States (1878) 98 U.S. 145, 155, quotations omitted; Nesler, supra, 16 Cal.4th at 581, quoting same.) Respondent never addresses the questions these standards mandate. Did C.B. “decide the case solely on the evidence”? Was C.B. “capable . . . [of] decid[ing] the case solely on the evidence”? Did C.B.lay aside her opinions? Ordid her abusive, enslaved childhood close her mind, combatPetitioner’s evidence andresist its force? The undisputed evidence unequivocally answers the questions Respondent should have addressed: No, C.B. did not decide the question of Petitioner’s death based solely on the evidence. No, C.B. was not capable of doing so. No, she did not lay aside her opinions. And yes, her personal traumaclosed her mind andresisted the force of Petitioner’s evidence; she had concludedthat childhood abuse was no excuse before she ever walked into the courtroom. (See Petitioner’s Exceptions to the Referee’s Findings of Fact and Merits Brief (“PB”) at Section IV.B.) Respondent completely ignores the facts and law compelling these conclusions. Respondent does not acknowledge, let alone cometo grips with: e C.B.’s admissionsthat she rejected Petitioner’s mitigation evidence based on her uniquely similar and traumatic history of abuse; e C.B.’s statements to her fellow jurors about the same; and e C.B.’s admission that even before the trial, her own history of abuse had predisposedherto reject any mitigation defense based on abuse. Instead of confronting these undisputed facts, Respondent distracts by relating facts of the murders for which Petitioner was convicted — facts that are utterly irrelevant to the juror misconduct and bias -2- issues before this Court. Respondentargues that C.B. was not biased simply because she said so at the 2013 evidentiary hearing, 20 years after the trial. This testimonyis beside the point because C.B. admitted she did not know the legal definition of “bias.” Her contemporaneous and subsequent admissions show that she wasbiased underthe legal definition, as a matter of law: She did not decide to vote for death based solely on the evidence; she did not lay aside her opinions; and her past closed her mind to Petitioner’s childhood-abuse testimony and combattedits force. Respondentalso argues that C.B.’s failure to disclose her history of abuse on herjuror questionnaire was neither intentional nor deliberate. However, Respondent ignores the contradictions in C.B.’s testimony. C.B. could not be completely “credible” because the reasons she gave for not disclosing her abuse during voir dire cannotall be true. Because substantial and credible evidence does not support the Referee’s finding, this Court should go where the evidence takesit: C.B. understood the clear questions and — however understandably — deliberately chose not to disclose her painful past. Il. THE UNDISPUTED LEGAL FRAMEWORK APPLICABLE FOR THIS CASE As Respondent concedes, “[a] juror who conceals relevant facts or gives false answers during the voir dire examination thus -3- underminesthe jury selection process and commits misconduct.” (RB at8; In re Boyette (2013) 56 Cal.4th 866, 889.) The false answer is misconduct even if the juror did notintentionally conceal relevant facts. (in re Boyette, supra, 56 Cal.4th at 889-90 [juror’s incorrect answers on voir dire were misconductraising presumption of prejudice even though he answeredin good faith].) “{J]Juror misconductraises a presumption of prejudice.” (Un re Boyette, supra, 56 Cal.4th at 890.) The prosecution bears the burden of rebutting the presumption. (/d. at 892.) “Any presumption of prejudiceis rebutted, and the verdict will not be disturbed,if the entire record in the particular case, including the nature of the misconductor other event, and the surrounding circumstances, indicates there is no reasonable probability of prejudice,i.e.,no substantial likelihood that one or more jurors were actually biased against the defendant.” Un re Hamilton, supra, 20 Cal.4th at 296, emphasis in original andcitations omitted.) Irrespective of the prejudice inquiry, if the Court finds a “substantial likelihood that a juror wasactually biased, [the Court] must set aside the verdict, no matter how convinced[it] might be that an unbiased jury would have reached the same verdict, because a biased adjudicator is one of the few structuraltrial defenses that compel reversal without application of a harmless error standard.” (People v. Hensley (2014) 59 Cal.4th 788, 824, quotations omitted.) Here, C.B.’s failure to disclose her history of abuse, intentional or not, was misconduct because she “g[a]ve[] false answers during [] voir dire.” (/n re Boyette, supra, 56 Cal.4th at 889.) Respondent does not claim otherwise. C.B.’s undisputed misconduct presumptively prejudiced Petitioner, a presumption that the government cannot rebut because it was substantially likely that C.B. was actually biased. (See Section IV, below.) Indeed, C.B. was actually biased. (See Section III, below.) That C.B. intentionally and deliberately concealed her history of physical abuse and rape (see Section V, below) only confirmsthis conclusion. IH. JUROR C.B. WAS ACTUALLY BIASED Respondentclaims that C.B. was not actually biased because she testified 20 years after-the-fact that she was not biased. That testimony cannot support a conclusion that she was not biased as the law definesit, however. C.B. admitted she does not know whatbias means underthe U.S. and California Constitutions. (EHT' at 60:21-23.) She directly testified to facts making clear that she did not lay her opinionsaside and decide based solely on the evidence presented in court and that her undisclosed history of abuse created strong and deep impressions that closed her mind, combatted Petitioner’s mitigation evidence andresisted its force — the tests for bias. 'The record of the evidentiary hearing includesa transcript of the June 30, 2013 hearing and exhibits admitted by both Petitioner and Respondent. The evidentiary hearing transcriptis cited herein as “EHT.” -5- (See Section I, above; PB at Section IV.B.2.) Respondentignores these facts even while admitting that the “entire record” and the “totality of the circumstances”are relevantto the bias inquiry. (RB at14, citing People v, Thomas (2012) 53 Cal.4th 71, 819, and In re Carpenter (1995) 9 Cal.4th 634, 654.) Respondent agrees that conclusions of law and mixed questions of law andfact are subject to this Court’s independent review. (RB at 2.) Because the question of whether C.B. wasactually biased requires this Court to apply the constitutional standard of “bias” to undisputed facts, it should be determined by this Court de novo. (Ghirardo v. Antonioli (1994) 8 Cal.4th 791, 800-01; see also PB at Section IV.B.1.) The undisputed facts establish that C.B. had a history of abuse that wassignificant, traumatic, and that mirrored Petitioner’s history of abuse. They further establish that she was predisposed to and did indeed reject Petitioner’s defense because ofthat history. Under California and federal Constitutional law, that means she wasactually biased. A. Respondent’s Reliance On C.B.’s Claim That She WasNot Biased Is Misplaced Unable to dispute either C.B.’s admissionsorthat they satisfy the test for bias, Respondent falls back on her conclusory testimony that she wasnotbiased, saying she “emphatically denied that she held any bias against Petitioner.” (RB at 13.) To no avail. C.B.’s uninformed -6- conclusion cannot overcomeher specific admissions of unconstitutional bias. First, C.B. did not “emphatically” deny anything; she was simply asked “Were you biased against Mr. Manriquez at any time while you werea sitting juror in this trial?” and responded “No, sir, I was not.” (EHTat 53:25-27.) Second, and more importantly, C.B.is not a lawyer and admitted she did not knowthe legal definition of bias. (EHT at 60:21-23.) The Referee erroneously overruled Petitioner’s objection to asking C.B. whether she was“biased” becauseit called for a legal conclusion (EHTat 52:17-53:27) and Respondent deliberately prevented Petitioner from then determining what her answer meant. Petitioner’s counsel asked her “What does bias mean to you?” Respondent then objected on relevance grounds, and the Referee erroneously sustained the objection. (/d. at 60:12-19.) Thus we knowthat C.B. was not denying that she metthe legal test for bias (since she did not know whatthat test was) and we do not know whatshe did mean (because the Referee sustained Respondent’s relevance objection to that question, though it was very relevant). If C.B.’s claimed lack ofbias were given any weight, the Referee’s ruling preventing Petitioner from determining what she meant was erroneous, unfair and prejudicial. A layperson such as C.B. would likely understand “bias” to mean personal prejudice or animusagainst the defendant. (But see People -7- v. Cissna (2010) 182 Cal.App.4th 1105, 1116 [“Juror bias does not require that a juror bear animosity towards the defendant.”].) C.B. could not know that a fixed preconvictionorinability to decide the case solely on the evidence wasbias. Asthis Court explained in anothersetting, jurors can be expected to determine facts (especially here, where the fact is the juror’s ownstate of mind). But they cannot reasonably be expected to know whetherthose facts satisfy the law. (See People v. Guiton (1993) 4 Cal.4th 1116, 1128-29 [test for determining whether defendant wasprejudiced by instructions on both valid and invalid theories: when defect in theory is “purely factual,” jury is “fully equipped to detect”it and instruction is normally not prejudicial; but when defect “is legal, not merely factual, that is, when the facts do not state a crime underthe applicable statute,” jury has no way of detecting the problem and erroneousinstruction is presumptively prejudicial]; Griffin v. United States (1991) 502 U.S. 46, 59 [similar]; see also People v. Hughes (2002) 27 Cal.4th 287, 349-50 [holdingthattrial court erred in failing to define rape, despite prosecution’s contention that term was “commonly understood”; “The People cite no empirical evidence or authority for the proposition that reasonable lay jurors are aware ofthe correct legal definition of rape... .”].) Thus, Respondent can take no solace from Smith v. Phillips (1982) 455 U.S. 209, which considered a juror’s statement that he was not -8- biased. (RB at 14.) In Smith, the court relied on the juror’sfactual testimony abouthis state of mind, not his conclusion as to whether those constituted bias. In Smith, a juror applied for a job with the prosecuting District Attorney’s office duringtrial. (455 U.S. at 212.) Defendant claimed the juror was incapable of being impartial, and that the court should imply bias, due to the pendencyofhis job application and his desire to impress a potential new employer. (/d. at 215.) Nothing in Smith suggests that the juror was asked a conclusory question about whether he was “biased.” He wasnot, as the briefs in that case make clear. He testified about the facts of his state of mind, not whetherthat state of mind met the legal standard for bias: Question: Do youthink that [being a juror] might have helped you, that might have been helpful in considering you as an applicant for the job? Answer: Mr. Rothblatt, I swore an oath to listen to the evidence andto render a verdict on that evidence.I did so. +k Question: I didn’t ask youthat. Answer: Well, I’m telling you that this wasn’t in my mind. I didn’t consider it favorable. [The District Attorney’s office] had nothing to do with this case so far as I’m concerned. ke Question: Did you think that you would be considered for this job as investigator for the -9. District Attorney’s Office if you voted to acquit Mr. Phillips? Yes, or No. Answer: I didn’t think about whetheror notto acquit or convict Phillips had anything to do with the job. I didn’t think aboutit at all, one way orthe other. OK Question: You mean you neverthoughtfor a momentthat an acquittal in this case, the people in the District Attorney’s Office would look upon you unfavorably as an investigator workingfor their staff if you felt that Mr. Phillips was entitled to an acquittal; is that what you’re telling us? Answer: Yes, that’s what I’m telling you. Why would the DA’s Office care about myactions as a juror? You’re the one who’s suggestingit, no oneelse-. (Brief of Appellant, Smith v. Phillips (1982) 455 U.S. 209, available at 1981 WL 389698, at *12.) Thetrial court gave weightto this testimony and foundthat the juror was not biased, and Smith found it was permissible for the trial court to rely only on the juror’s testimonyfor that finding. (Smith, supra, 455 U.S. at 215-17.) This case is thus nothing like Smith. The juror there testified to thefacts about his state of mind; C.B.here testified only to the conclusion that she wasnot biased, while admittedly not knowing what bias meant underthe law. Thefacts the juror recounted in Smith did not constitute legal bias; the facts C.B. testified to here do constitute legal bias. (See Section III.B, below; PB at IV.B.2.) -10- Smith affirmedthat “[d]ue process meansajury capable and willing to decide the case solely on the evidence beforeit, and a trial judge ever watchful to prevent prejudicial occurrences and to determinethe effect of such occurrences when they happen.” (455 U.S. at 217.) As described in the following section, C.B. was actually biased, because herfactual admissions prove she could not and did not decide the case “solely on the evidence before”her. B. Respondent, Like The Referee, Completely Ignores The Bias Inquiry Respondent acknowledgesthat Petitioner was entitled to a jury in which every member was “capable and willing to decide the case solely on the evidence before it” (RB at 7-8), and this Court recently confirmed that this requirement applies equally to the penalty phase of a trial in which the State seeks to sentence the defendant to death. (People v. Hensley (2014) 59 Cal.4th 788, 824.) Yet, Respondent completely ignores the substantial case law applying this standardof bias and the facts relevant to it. C.B. did not meet the constitutional requirement of impartiality. Instead of basing her decision solely on the evidence, C.B. rejected Petitioner’s mitigation defense based on a unique, similar and traumatic personal experience that mirrored the material facts at issue during Petitioner’s penalty phase trial. (See PB at Section I.B.3 -ll- [describing undisputed facts of C.B.’s rejection of Petitioner’s mitigation evidence based on hersimilar history].) Indeed, her uniquely similar history madeherpredisposedto reject Petitioner’s defense, and her rejection was immediate. (/bid. [describing undisputed facts of C.B.’s predisposition to reject mitigation evidence].) Thus, C.B. was biased because she could not and did not base her decision solely on the evidence. (See id. at Section IV.B.2.) Casesfrom California and other state and federal courts uniformly confirm that when a juror enduresa significant, traumatic, and unique experience that mirrors the facts at issue in the case, and whenthat experienceis likely to or actually enters deliberations, as here, the juroris actually biased. (PB at 23-30 [discussing People v. Blackwell (1987) 191 Cal.App.3d 925; Nesler, supra, 16 Cal.4th 561; State v. LaRue (Hawaii 1986) 722 P.2d 1039; United States v. Sampson (D. Mass. 2011) 820 F.Supp.2d 151; People v. Thomas (1990) 218 Cal.App.3d 1477; United States v. Eubanks (9th Cir. 1979) 591 F.2d 513; Burton v. Johnson (10th Cir. 1991) 948 F.2d 1150; United States v. Martin (11th Cir. 1985) 749 F.2d 1514; People v. Oliver (Il. App. 1977) 50 Ill_App.3d 665; Bayramoglu v. Estelle (9th Cir. 1986) 806 F.2d 880; and Norris v. State (1998) 230 Ga.App. 492].) Respondent has no answerto this substantial body of law establishing C.B.’s bias under the undisputed facts, even -12- though Petitioner cited these in his Traverse before this Court and the briefing before the Referee. C.B.’s actual bias confirmsthat Petitioner’s sentence violated California and federal constitutional law, and compels a new penaltytrial. IV. RESPONDENT CANNOT PROVE THERE WAS NO SUBSTANTIAL LIKELIHOOD THATC.B. WASBIASED Petitioner is entitled to a new penaltytrial even if C.B. was not “actually biased” (though she was). C.B.’s nondisclosure during voir dire constituted misconduct creating a presumption of prejudice, and the State cannot rebut that presumption becauseit cannot meetits burden to prove that there is no substantial likelihood that she wasactually biased. (Un re Boyette, supra, 56 Cal.4th at 889-90.) “Whether prejudice arose from juror misconduct . . . is a mixed question of law andfact subject to an appellate court’s independent determination.” (Nesler, supra, 16 Cal.4th at 582.) The presumption that Petitioner suffered prejudice as a result of Juror C.B.’s misconduct mustbe the starting point for the Court’s inquiry. “It is for the prosecutor to rebut the presumption by establishing there is ‘no substantial likelihood that one or more jurors were actually biased against the defendant.’” (People v. Weatherton (2014) 59 Cal.4th -13- 589, 600 [requiring a newtrial and finding that trial court did not properly apply the presumption ofprejudice], (emphasisin original.) Nonetheless, Respondent makes no attempt to meet the burden of showing nosubstantial likelihoodofbias. Indeed, he cannot because the evidence overwhelmingly establishes that C.B. was actually biased. (See PB at Section IV.B; Section III, above.) Atthe very least, Respondentcannot rebut the presumption of prejudice because C.B.’s history of abuse wasinherently likely to have influenced her and the evidence undermines any confidencethat neither C.B. nor any of the other Jurors was impermissibly influenced by C.B.’s pre-existing views. C.B.’s history of abuse wasinherently likely to have influenced her deliberations; in fact, she admitted they did. As Respondent acknowledges, the question of prejudice is “whether the misconductis inherently likely to have influenced the juror.” (RB at 9, citing People v. Harris (2008) 43 Cal.4th 1269, 1303, Jn re Hitchings (1993) 6 Cal.4th 97, 118; People v. Marshall (1990) 50 Cal.3d 907, 950-951.) C.B.’s traumatic history of abuse wasinherently likely to have influenced her during deliberations because jurors cannot help but connect their own unique and traumatic experiences to similar experiences that are presented to them. (United States v. Gonzalez (9th Cir. 2000) 214 F.3d 1109, 1114 [“[T]he relationship between a prospective juror and some aspect ofthe litigation [can be] such thatit is highly unlikely that the average person could remain -14- impartial in his deliberations under the circumstances,” quoting Tinsleyv. Borg (9th Cir. 1990) 895 F.2d 520, 527.]; United States v. Allsup (9th Cir. 1977) 566 F.2d 68, 71 [“The potential for substantial emotional involvement” may “adversely affect[] impartiality.”]; Smith v. State (Fla. 2009) 28 So.3d 838, 860 [in a capital murder case, trial court erroneously denied challenge for cause against juror who was witnessin acapital case where his daughter was murdered, even though he “sincerely”“stated that he could follow the instructions given by thetrial court as well as be fair” because court did not accept that juror “could not be influenced, albeit unintentionally, by such a painful and tragic experience”].) Here, evidence of Petitioner’s abuse immediately caused C.B. to think of her own abuse. She then decided Petitioner’s fate based on her own uniquely similar history, and she told the other jurors of her past in an attemptto influence them. There can be no question that C.B.’s history of abuse actually influenced her, confirming a substantial likelihood of bias. Respondentalso is unable to meet its burden because C.B.’s admissions aboutthe role her history of abuse played during deliberations undermine any confidence that she was not biased. (See PB at 40-42 [discussing “substantial likelihood” standard].) Given C.B.’s role as the jury foreperson, there wasalsoa “‘reasonable probability the remaining jurors’ were also influenced by her views.” (See PB at 42-43[citing People v. Diaz (1984) 152 Cal.App.3d 926, 936; LaRue, supra, 722 P.2d at 1042]; -15- compare People v. Merriman (2014) 60 Cal.4th 1, *99-100 [where juror discussed case with acquaintance who wasin law enforcement, and that discussion was misconduct, finding presumptionofprejudice rebutted because “Juror No. | did not share with her fellow jurors the fact or substance of her conversation”and jurortestified that she “maintained an open mind regarding defendant’s guilt’”’].) V. RESPONDENT FAILS TO CURE THE DEFECTS IN THE REFEREE’S FINDING THATC.B.’S FAILURE TO DISCLOSE HER ABUSE DURING VOIR DIRE WAS UNINTENTIONAL C.B. provided several conflicting explanations for her failure to disclose her childhood abuse and rape on herjuror questionnaire. The conflicts cannot be reconciled and neither Respondent nor the Referee attempt to do so. In fact, both Respondentand the Referee selectively discuss only some of C.B.’s testimony and ignoretherest. As described below, some of C.B.’s explanations are inescapably false; therefore, the Referee’s finding that she was generally credible is clearly wrong. (See also PB at Section IV.D.1 [describing C.B.’s conflicting explanations and the Referee’s failure to reconcile them].) The Referee’s ultimate conclusion that C.B. unintentionally did not disclose her history of abuse on her juror questionnaire is not entitled to deference becauseit is not supported by “substantial and credible evidence.” (/n re Hitchings, supra, 6 Cal.4th at 109; see also PB at 43-51.) -16- Because Respondentfails to provide support for the Referee’s finding, the finding must be rejected. A. The Referee’s Finding That C.B. Provided Credible Reasons For Failing To Disclose Her History Of Abuse And Rape Is Unsupported Respondentrecites the Referee’s finding that Juror C.B. provided credible reasons for failing to disclose her childhood abusein her pre-trial juror questionnaire, and that her “testimony explaining the different aspects of her testimony wasinternally consistent.” (RB at 10, citing Referee’s Findings of Fact (“RFF”) at 8.) To the contrary, they are inconsistent. 1. C.B.’s Admissions That The Questions Were Not Limited To Any Time Period, But That She Nonetheless Interpreted Them To Relate Only To Adulthood, Are Irreconcilable Respondentnotesthat “[a]t the [evidentiary] hearing, Juror C.B. acknowledged that she had been present during a violent act, and that whenshe answered Question 64 in 1993 (‘Have you oranyrelative or friend ever experienced or been present during a violent act, not necessarily a crime?’), she ‘did not interpret the question as imposing any timeframe limitation per se.’” (RB at 4, quoting RFF at 5; EHT at 38.) Respondent claimsthat C.B. did not disclose her childhood abuse in responseto the -17- question because she “‘did not consider [her] childhood a violentact.’” (RB at 4, quoting RFF at 5; EHTat 38.) Respondent’s argumentfor C.B.’s nondisclosure cannotbe squared with her testimonythat she interpreted questions 63-66 of the juror questionnaire to relate only to her adulthood (EHT at 39:24-40:14, 41:6- 17), and her admission that nothing in the questions indicated they were limited to any time period (/d. at 38:13-16). It cannot be true that she interpreted the questions to relate only to her adulthood andalso that she did not interpret them to have any time limitation. Thus, C.B.’s testimony is not credible and both Respondent and the Referee fail to reconcile her ' contradictory statements. 2. C.B.’s Statements That Abusing And Raping A Child Are Crimes And Acts Of Violence, But That Her Own Abuse And Rape Are Not, Are Irreconcilable Respondentstates that “C.B. consistently testified the sole reason for not disclosing her childhood abuse wasthat she did not consider any incident during her childhood to be a violent act (EHTat p. 38), and that she did not consider the abuse she suffered to have been a crime (EHT at pp. 19-20).” (RB at 10; see also RB at 4.) However, Respondent’s argument is wrong because C.B. alsotestified that in 1993 she considered physically abusing a child to be violence (EHT at 22:2-4) and molesting a child to be violence (/d. at 19:9-13) and criminal (/d. at 19:14-27). Saying -18- that she did not regard what happenedto heras a crimeis anirrational explanation for her answer. Question 64 asked whether C.B. had ever experienced “a violent act, not necessarily a crime.” (Pet. Ex. 2 [Pre-Trial Questionnaire] at TF393132, emphasis supplied.) C.B. had been raped, and by any standard rapeis a violent act. The question plainly covers violent acts even if they are not crimes. Respondent simply ignoresthis inescapable fact because he has no answerfor C.B.’s false and contradictory explanations. Accordingly, C.B.’s statements are inconsistent and not credible. Instead of reconciling C.B.’s inconsistent statements, Respondentsimply restates the Referee’s unsupported explanation that “her ‘experiences of growing up as a child in the 1950’s, which shaped her view of life, support her explanation ofwhy she did not disclose the circumstances of her abusive childhood.’” (RB at 10, quoting RFF at 7.) This is not a reasonable explanation, and it was not the 1950’s when she answered the questionnaire. Shefilled out the questionnaire in 1993, when she admittedly knew and believed that physical abuse and rape were “violence” and “crimes.” (EHTat 19:9-27, 22:2-4.) Thus, herfalse answers on the questionnaire wereinconsistent with her own understanding of the questions. Neither Respondentnor the Referee explain how C.B. could reasonably have given answers contrary to her admitted understanding. -19- Instead, they simply restate her conclusory testimony that she did not consider her molestation to have been anact of violence. (See RB at 10; RFF at 4:19-21, citing EHT at 20:18-22 [“Q. In 1993 did you consider the molestation that happened to you to have been anact of violence, not necessarily a crime? A. No, I didn’t.”].) This is not enough. C.B.’s inconsistent and unreasonable statementsare not credible. 3. C.B.’s Claim ThatShe Failed To Recall Her Childhood Abuse And Rape Though She Carefully Thought About Her Answers To The Questionnaire Is Implausible Respondentstates that “in response to a question posed by the Referee regarding her thought process, Juror C.B. testified that she ‘tried to recall if she had been a victim of any crime, and nothing cameto mind.’” (RB at 5, quoting EHT at 68.) This simply parrots the Referee’s statement that C.B.’s childhood abuse did not come to mind whenshe carefully thought of her answers to the questionnaire (RFF at 5:12-6:2, 9:17-25), but that they came to mind whensheput herself in Petitioner’s place (RFF at 6:18-20). Again, this is not credible. First, the relevant questions clearly called for this information. They were not ambiguousand C.B. wasreadily able to understand what they meant. (EHTat 14:19-26.) Second, C.B. had plenty of time to deliberate over the questions, she considered them important, and she thought about them. (/d. at 67:16-18, 68:9-11, 41:4-5.) Third, C.B. - 20 - took the questionnaire home, thought about her answers before checking the “no” boxes, and she may have even discussed someofthe questions with her partner. (/d. at 67:9-68:11.) Yet she claimed that her decade of abuse andherrape “did not come to mind.” (/d. at 20:9-12, 68:19-20.) Howcanten years of “physical abuse” and “slave”labor, in addition to being raped, “not to come to mind”in response to an unambiguous question that asked about any “violent acts”? If that is credible, then credibility has no meaning. B. RespondentFails To Cure The Referee’s Erroneous Finding That C.B. Did Not Intentionally Conceal Her History Of Abuse On Her Juror Questionnaire C.B.’s explanations for her failure to reveal material, relevant information on her juror questionnaire cannot be believed. The only reasonable conclusionis that C.B. intentionally and deliberately did not disclose her history of abuse during voir dire. 1. C.B.’s Statements Post-Verdict Show That She Intentionally Concealed Her History of Abuse On Her Juror Questionnaire Both Respondent and the Referee place great weight on the fact that C.B. brought her abusive childhoodhistory to the attention of Petitioner’s trial counsel in the post-verdict juror questionnaire and that she informed Petitioner’s habeas counsel that she communicatedthis information to the other jurors during jury deliberations. (RB at 6, 10-14; -21- RFFat 7:9-21, 12:7-13.) However, C.B.’s statements post-verdict show that she intentionally concealed her childhood abuse on herpre-trial questionnaire. As Respondentandthe Referee admit, C.B.did not disclose her abusive childhoodhistory until after the trial and after Petitioner was sentenced. (See RB at 6, 11; RFF at 7:9-20, 12:7-8.) C.B.’s decision to not notify the trial judge of her childhood history of abuse during deliberations, when she claims to have remembered her abuse, is more consistent with an intentional choice notto disclose the abuse during voir dire, than with any unintentional nondisclosure. Respondent confuses C.B.’s disclosure post-verdict with situations in whichjurors voluntarily disclosed potentialbiasesbefore receiving jury instructions and before rendering a verdict. Respondentcites to People v. Ray (1996) 13 Cal.4th 313 for the proposition that “had Juror C.B. intended to intentionally conceal her childhood abuse, she ‘would have simply remainedsilent.’” (RB at 12, citing Ray, 13 Cal.4th at 344.) In Ray, a juror sent a note to the court explaining that the daughter ofthe victim attended the same high school where he was employed as a guidance counselor, but that he had never talked about the case with the daughter. This potential bias wasdisclosed to the court “before [jury] instructions were given” and “defense counsel informed the court that he already knew about the note and saw no‘reasonto inquire’”as to the juror’s “statement that he[] never talked to the daughter about the case satisfied the defense.” -22- (Ray, 13 Cal.4th at 342-43.) Here, C.B. did not disclose her bias until after Petitioner had been sentenced to die. This denied Petitioner’s trial counsel andthetrial court the opportunity to explore her biases and dismiss her from the jury. Moreover, unlike defense counsel in Ray, Petitioner’s trial counsel was never afforded the opportunity to become“satisfied” with C.B.’s explanations for her failure to disclose her childhood abuse on voir dire. AsPetitioner explained, People v. Blackwell (1987) 191 Cal.App.3d 925 is analogous to this case. (See PB at 49-50.) In Blackwell, a juror whofailed to disclose relevant facts on voir dire admitted after the verdict that she had personal experiences similar to the defendant’s. The court correctly held that the juror “was awareof the information sought and deliberately concealed it by giving false answers.” (Blackwell, 191 Cal.App.3d at 930.) Accordingly, C.B.’s disclosure post-verdict showsthat she intentionally concealed her childhood abuse onthe pre-trial questionnaire. 2. Respondent’s Cases Do Not Cure The Referee’s Defective Finding Both Respondentand the Refereecite to Jn re Boyette, supra, 56 Cal.4th at 890, and Jn re Hamilton, supra, 20 Cal.4th at 298-301, for the proposition that “[b]ecause Juror C.B. answeredthe pretrial juror questionnaire in good faith based on her understanding of the meaning of -23- the questions, her honest mistake does not suggest that she intentionally concealed her past or that she was biased against Petitioner.” (RB at 12-13; see also RFF at 10:9-11, 11:3-6, 11:12-15.) However, C.B.’s conflicting reasons for her nondisclosure, which cannot be reconciled, show that C.B. did not “honest[ly]” fail to answer the questions correctly, but that she intentionally concealed her childhood abuse and rape. Moreover, the referees’ credibility determinations in Boyette and Hamilton are not relevant here. As Boyette makesclear, a referee’s credibility determinations are fact driven. Unlike the referees’ findings in Boyette and Hamilton, the findings of the Referee in this case are not supported by substantial and credible evidence and should be rejected. (See Section V.A, above.) C.B.’s testimony demonstrates that she thought about her answers, remembered her childhood abuse, and chosenot to discloseit. Because both Respondent and the Referee fail to demonstrate otherwise, this Court should not accept the Referee’s findings that C.B. did not intentionally and deliberately concealher history of abuse. VI. CONCLUSION Petitioner respectfully submitsthat his petition for writ of habeas corpus be granted. Alternatively, and at the very least, Petitioner’s death sentence must be vacated, and this Court should exerciseits -24- discretion under California Penal Code section 1181, subdivision 7 to reduce his sentence to life without parole. DATED: September 19, 2014 BINGHAM MCCUTCHEN LLP Bingham McCutchen LLP Attorneys for Petitioner Abelino Manriquez -25- CERTIFICATE OF COMPLIANCE I certify that the attached Response to Respondent’s Brief on Merits and Exceptions to Referee’s Report uses a 13-point Times New Roman font, and contains 5,479 words. DATED:September 19, 2014 By: — ! John R. Reese Bingham McCutchen LLP Attorneys for Petitioner Abelino Manriquez - 26 - PROOF OF SERVICE I am overeighteen years of age, not a party in this action, and employed in San Francisco County, California at Three Embarcadero Center, San Francisco, California 94111-4067. I am readily familiar with the practice ofthis office for collection and processing of correspondence for mail and UPS overnight delivery, and they are deposited that same day in the ordinary course of business. On September 19, 2014, I served the attached: RESPONSE TO RESPONDENT’S BRIEF ON MERITS AND EXCEPTIONS TO REFEREE’S REPORT FS (BY MAIL)by causinga true and correct copy of the above to be placed in the United States Mail at San Francisco, California, in sealed envelope(s) with postage prepaid, addressed as set forth below. I am readily familiar with this law firm’s practice for collection and processing of correspondence for mailing with the United States Postal Service. Correspondenceis deposited with the United States Postal Service the samedayit is left for collection and processing in the ordinary course of business. Abelino Manriquez, CDC # J12400 San Quentin State Prison San Quentin, CA 94974 Fa (UPS/OVERNIGHT DELIVERY)by causing a true and correct copy of the document(s)listed above to be delivered by in sealed envelope(s) with all fees prepaidat the address(es) set forth below. John A. Clarke, Clerk Office of the State Public Defender LA County Superior Court 1111 Broadway, 10th Floor 111 North Hill Street Oakland, CA 94607 Los Angeles, CA 90012 -27- Attorney General - LA Office Hon. Jackie Lacey, District Attorney Timothy M. Weiner, Deputy Brian R. Kelberg, Deputy District Attorney General Attorney Sharlene A. Honnaka, Deputy LA County District Attorney’s Attorney General Office Keith Borjon, Capital Case 320 West Temple Street, Suite 540 Coordinator Los Angeles, CA 90012 300 S. Spring Street, Sth Floor Los Angeles, CA 90013 Nora Cregan, Esq. Habeas Corpus Resource Center 619 Mariposa Avenue 303 - 2nd Street, 400 South Oakland, CA 94610 San Francisco, CA 94107 California Appellate Project 101 Second Street, Suite 600 San Francisco, CA 94105-3672 I declare under penalty of perjury under the lawsofthe State of California that the above is true and correct and that this declaration was executed on September 19, 2014. Taney &Aum Nancy S. Lum - 28 -