PEOPLE v. MENDOZA (HUBER JOEL)

Appellant’s Opening Brief

Cal.November 28, 2011

SUPREME COURT COPY IN THE SUPREME COURTOF THE STATE OF CALIFORNIA Calif. Supreme Court PEOPLE OF THE STATE OF CALIFORNIA No. 8143743 ) ) ) Plaintiff and Respondent, ) Stanislaus Co. Super. ) Ct. No. 1034046 Ve ) ) HUBER JOEL MENDOZA, ) Automatic Appeal ) Defendant and Appellant. ) ) SUPREME COURT APPELLANT' S OPENING BRIEF FILED NOV 2.8 201 Frederick K. Ohirich Clerk Deputy KATHY MORENO STATE BAR121701 P. O. BOX 9006 BERKELEY, CA 94709 (510) 649-8602 katmoreno@comcast.net Attorney for Appellant By appointmentofthe Supreme Court DEATH PENALTY TOPICAL INDEX INTRODUCTION STATEMENT OF THE CASE GUILT PHASE STATEMENTOF FACTS A. Evidence Elicited by the Prosecution. 1. Percipient witnesses. 2. Police officer testimony. B. Evidence Presented by the Defense. SANITY PHASE STATEMENTOF FACTS A. Evidence Presented by the Defense. B. Evidence Presented by the Prosecution. C. Evidence Presented by the Defense in Rebuttal. PENALTY PHASE STATEMENT OF FACTS A. Evidence ofAggravating Factors. B. Evidence Presented in Mitigation. ARGUMENT — COMPETENCYTRIAL I. THE EVIDENCE PRESENTED TO THE JURY WAS INSUFFICIENT TO SUSTAIN THE VERDICT OF COMPETENCY, IN VIOLATION OF FEDERAL DUE PROCESS, THUS REQUIRING REVERSAL OF APPELLANT'S SUBSEQUENT CONVICTIONS A. Introduction and Summary ofArgument. B. Summary ofFacts Adduced by Appellant at the CompetencyTrial. 10 12 12 29 34 38 38 40 48 48 48 51 TOPICAL INDEX(cont'd) Expert attorney testimony that competency required the criminal defendantto be able to make important decisions such as whether to testify, and to assist in penalty phase preparation. 51 Court-appointed expert Dr. Zimmerman testified that appellant was seriously depressed and incompetentto stand trial at the time of his November 2003 interview. 52 After hours of interviews over more than a year and in reliance on a reliable competence-related structured interview format, psychiatrist Dr. Stewart testified that at the time ofthe competencytrial, appellant suffered from a deteriorating mental illness and was incompetentto standtrial. 53 Dr. Schaeffer, who had interviewed appellant only four days before testifying, relied on the transcript of that interview to show that appellant had a consistent psychotic thought disorder and was incompetent to stand trial. 56 Evidence Presented by the Prosecution. 59 The Defense Presented Overwhelming and Substantial Evidence ofAppellant's Incompetency That Was Neither Undermined Nor Contradicted by the Prosecution's Evidence. 64 1. Thetrial court denied appellant's motion using the wrong standard andfailed to assess the federal constitutional requirements for competency. 66 i TOPICAL INDEX(cont'd) 2. The prosecution failed utterly to refute the impressive array of evidence presented by the defense that appellant was not competentto stand trial under the federal constitutional requirements. 68 (a) Dr. Cavanaugh's opinion that appellant was competent wasnotonly stale, it was compromised by faulty techniques and was without adequate foundation as shown by the transcript of Dr. Cavanaugh's interview with appellant. 69 (b) The taped phone conversations between appellant and family members showed nothing about his legal competency. 81 (c) Testimony from jail staff as to trivial conversations with appellant failed to refute the strong evidence of his legal competency. 82 (d) Dr. Trompetter gave no opinion as to appellant's competencyat the time of his arrest or any other time. 82 The Insufficient Evidence of Competency In This Case Requires Reversal. 83 International Jurisprudence on Competency to Stand Trial Fully Supports Appellant's Claim that the Evidence Against Him WasInsufficient to Support the Verdict. 86 Conclusion. 93 iil TOPICAL INDEX(cont'd) AFTER THE COMPETENCY JURY VERDICT AND BEFORE, DURING, AND AFTER THE GUILT/SANITY/PENALTY TRIAL, THE DEFENSE REPEATEDLY SHOWED SUBSTANTIAL CHANGED CIRCUMSTANCESAS EVIDENCE OF APPELLANT'S PRESENT INCOMPETENCY, SUCH THAT THE TRIAL COURT'S REFUSAL TO REINSTATE PROCEEDINGS WAS AN ABUSEOF DISCRETION, UNSUPPORTED BY THE FACTS, AND THE RESULTANT DUE PROCESS VIOLATION REQUIRES REVERSAL OF APPELLANT'S CONVICTIONS 95 A. Introduction and Summary ofArgument. 95 B. Summary ofProceedings Below. 96 C. Even After a Verdict of Competency, the Federal Constitution Requires the Trial Court to Reinstate Section 1368 Proceedings When Presented with a Substantial Change of Circumstances. 104 D. Appellant's Demeanor, the Statements and Reports by A Medical Expert and Defense Counsel Were Sufficient To Raise a Reasonable Doubtasto Appellant's Present Competency Such Thatthe Trial Court's Refusal To Reinstate Competency Proceedings Violated Federal Due Process. 105 E. International Jurisprudence Confirms that Any Significant Change in Circumstances Mandates a New Competency Assessment at Any Stage of Trial. 113 1. A defendant's capacity to carry out basic daily tasks or to acquiesce to defense counsel's decisions is insufficient to establish competency. 118 2. A failure to ensure competency undermines the integrity of the criminal justice process. 120 F. Conclusion. 121 iv TOPICAL INDEX (cont'd) ARGUMENT- GUILT AND SANITY TRIAL 122 Ill. IV. APPELLANT'S ABSENCE FROM EVIDENTIARY PORTIONS OF THE GUILT PHASE OF HIS TRIAL, WITHOUT VALID WAIVERSOF HIS RIGHT TO BE PRESENT, VIOLATED HIS STATUTORY AND CONSTITUTIONAL RIGHTS UNDER THE FIFTH, SIXTH AND FOURTEENTH AMENDMENTS TO PRESENCE AND DUE PROCESS 122 A. Introduction and Summary ofArgument. 122 B. Summary of Relevant Facts. 123 1. Guilt trial. 123 2. Sanity trial. 126 3. Penalty trial. 127 C. Appellant Did Not Waive His Statutory And Constitutional Rights To Be Present During The Taking of Testimony. 129 D. The Violation of Appellant's Statutory and and Constitutional Rights Requires Reversal ofHis Convictions. 134 THE PROSECUTOR ERRED IN CLOSING ARGUMENT AT GUILT PHASE BY REFERRING TO FACTSNOT IN EVIDENCE AND VOUCHING, THUS VIOLATING APPELLANT'S STATE AND FEDERAL CONSTITUTIONAL RIGHTS TO CONFRONTATION, DUE PROCESS AND A FAIR TRIAL 136 A. Introduction. 136 TOPICALINDEX(cont'd) B. The Prosecutor Erred by Arguing Matters Outside The Evidence and Suggesting to the Jury that Appellant's Case Was Worse than Other Murders Because the Shootings Were Not Preceded by an Argument, and by Suggesting that the Jury Need Not Consider Appellant's Mental State Because All Murderers Have Something Wrong With Them. C, The Prosecutorial Error Struck at the Heart of the . Defense Case and Was ThusPrejudicial. ARGUMENT — PENALTY TRIAL V. APPELLANT'S SENTENCE OF DEATH VIOLATES THE 138 140 142 EIGHTH AMENDMENT PROTECTION AGAINST CRUEL AND UNUSUAL PUNISHMENT AND DUE PROCESS BECAUSE APPELLANT WAS SERIOUSLY MENTALLY ILL AT THE TIME OF THE OFFENSES AND AT TRIAL A. Introduction and Summary. B. The Most Extreme Sentence ofDeath Is Grossly Disproportionate to Appellant's Personal Responsibility And Moral Guilt Because He WasSeverely Mentally Til. lL. Execution of a severely mentally ill person such as appellant does not serve the policies of deterrenceorretribution. 2. Evolving standards of decency. 3. Execution of the mentally ill: heightened risks of unjustified executions. 4. This Court's decision in Castanedais distinguishable on the facts. 5. Summary. vi 142 142 143 145 148 152 153 155 VU. TOPICAL INDEX(cont'd) IMPOSITION OF THE DEATH PENALTY ON A SEVERELY MENTALLY ILL OFFENDER SUCH AS APPELLANT VIOLATES THE FEDERAL CONSTITUTIONAL EQUAL PROTECTION CLAUSE AND REQUIRES REVERSAL OF APPELLANT'S SENTENCE THE PROCESS USED IN CALIFORNIA FOR DEATH QUALIFICATION OF JURIES IS UNCONSTITUTIONAL AND WAS UNCONSTITUTIONAL IN THIS CASE A. Current Empirical Studies Prove That the Death Qualification Process is Unconstitutional. 1. Thestatistical research since Hovey. 2. The factual basis of Lockhart is no longer sound. a. Misinterpretation of the scientific data. b. Incorrect legal observations. c. The scientific evidence. B. Data Regarding the Impact ofDeath Qualification on Jurors' Race, Gender, and Religion. C. Prosecutorial Misuse of Death Qualification. D. Death Qualification in California Violates the Eighth Amendment. E. The Death-Qualification Process is Unconstitutional. F, Death Qualification Violates the Right to a Jury Trial. Vil 156 159 161 161 163 165 166 167 168 169 17} 172 173 TOPICAL INDEX(cont'd) G. The Prosecutor's Use ofDeath Qualification via Peremptory Challenges was Unconstitutional. H. Errors in Death Qualifying the Penalty Jury Requires Reversal ofthe Guilt Verdicts as Well. L Conclusion. VIII. CALIFORNIA’S DEATH PENALTY STATUTE,AS INTERPRETED BY THIS COURT AND APPLIED AT APPELLANT’S TRIAL, VIOLATES THE UNITED STATES CONSTITUTION POST-CONVICTION REVIEW FOR VIOLATION OF TREATY RIGHTS IX. POST-CONVICTION REVIEW IS THE PROPER FORUM IN WHICH TO ADDRESS THE VIOLATION OF APPELLANT’S CONSULAR TREATY RIGHTS A. Appellant's Consular Treaty Rights Were Violated and His Consulate Was Thereby DeniedIts Right to Assist Him Throughout the Formative Stages of His Case. B. The Scope ofRemedies Potentially Available for the Article 36 Violation Is Dependent on a Showing of Prejudice. C. Any Prejudice Arising from the VCCR Violation in This Case Can Only Be Determined and Addressedin Post-Conviction Proceedings. D. Appellant Is Entitled to Comprehensive "Review And Reconsideration ofthe VCCR. 1. The requirements ofthe Avena Judgment ofthe International Court of Justice apply with full force to appellant's case. Vili 175 179 180 183 195 195 195 200 203 206 206 TOPICAL INDEX (cont'd) 2. Ongoing efforts to implement the Avena judgment domestically counsel for preservation of appellant's claim. 208 CONCLUSION 214 CERTIFICATE PURSUANT TO RULE8.360 215 ix TABLE OF AUTHORITIES CITED State Cases Hovey v. Superior Court (1980) 28 Cal.3d 1 In re Dixon (1953) 41 Cal. 2d 756 In re Harris (1993) 5 Cal.4th 813 In re Martinez (2009) 46 Cal.4th 945 People v. Arias (1996) 13 Cal. 4th 92 People v. Ary (2011) 51 Cal.4th 510 People v. Ashmus(1991) 54 Cal. 3d 932 People v. Bacigalupo (1993) 6 Cal.4th 457 People v. Bassett (1968) 69 Cal.2d 122 People v. Benson (1990) 52 Cal.3d 754 People v. Blacksher (2011) 52 Cal.4th 769 People v. Brown (1988) 46 Cal.3d 432 People v. Carrington (2009) 47 Cal.4th 145 People v. Castaneda (2011) 51 Cal.4th 1292 People v. Catlin (2001) 26 Cal.4th 81 People v. Collins (2001) 26 Cal.4th 297 People v. Collins (2010) 49 Cal.4th 175 People v. Concepcion (2008) 45 Cal.4th 77 People v. Cook (2006) 39 Cal.4th 566 People v. Cruz (2008) 44 Cal.4th 636 161-62, 166, 172, 179, 180 206 206 200, 205, 207 137 95, 106 160, 180 188-194 75 139, 141 131 134 184-194 131, 153, 155 191-194 133 184-194 133 87 204 TABLE OF AUTHORITIES CITED(cont'd) People v. Danks (2004) 32 Cal.4th 269 People v. D’Arcy (2010) 48 Cal.4th 257 People v. Davis (2006) 36 Cal.4th 510 People v. Doolin (2009) 45 Cal.4th 390 People v. Dunkle (2005) 36 Cal.4th 861 People v. Dykes (2009) 46 Cal.4th 731 People v. Edwards (1991) 54 Cal.3d 787 People v. Ervine (2009) 47 Cal.4th 745 People v. Fields (1983) 35 Cal.3d 329 People v. Frye (1998) 18 Cal.4th 894 People v. Gutierrez (2003) 29 Cal.4th 1196 People v. Hawthorne (1992) 4 Cal.4th 43 People v. Herring (1993) 10 Cal.App.4th 1066 People v. Hill (1998) 17 Cal.4th 800 People v. Holt (1997) 15 Cal.4th 619 People v. Jablonski (2006) 37 Cal.4th 774 People v. Jones (1997) 15 Cal.4th 119 People v. Jones (1991) 53 Cal.3d 1115 People v. Kaplan (2007) 149 Cal.App.4th 372 People v. Kelly (2007) 42 Cal.4th 763 People v. Kelly (1992) 1 Cal.4th 49 xi 146 184-194 122, 131, 135 84, 130, 131 108 140 130 184-194 161, 168-69, 179 105 135 187-194 141 84, 137, 138 130 140 108 38, 140 105, 110 130 108 TABLE OF AUTHORITIESCITED(cont'd) People v. Koontz (2002) 27 Cal.4th 104 105 People v. Lawley (2002) 27 Cal.4th 102 49, 75-76, 80, 104, 113 People v. Lewis (2006) 39 Cal.4th 970 186-194 People v. Lindsey (1988) 205 Cal.App.3d 112 141 People v. Marks (2003) 31 Cal.4th 197 83, 111 People v. Marshall (1997) 15 Cal.4th 1 85 People v. Martinez (2010) 47 Cal.4th 911 184-194 People v. Mattson (1990) 50 Cal. 3d 826 160 People v. McWhorter (2009) 47 Cal.4th 318 184-194 People v. Melissakis (1976) 56 Cai.3d 52 112 People v. Mendoza (2000) 24 Cal.4th 130 185 People v. Mendoza (2007) 42 Cal.4th 686 202, 204 People v. Mills (2010) 48 Cal.4th 158 184-194 People v. Moore (2011) 51 Cal.4th 386 76 People v. Ray (1996) 13 Cal.4th 313 187-194 People v. Rogers (2006) 39 Cal 4th 826 130 People v. Rundle (2008) 43 Cal.4th 76 130 People v. Samuel (1981) 28 Cal.3d 489 50, 64, 68, 81, 83, 94, 109 People v. Schmeck (2005) 37 Cal.3d 240 183-194 People v. Stanley (1995) 10 Cal.4th 764 85 People v. Stewart (2004) 33 Cal.4th 425 182 xii TABLE OF AUTHORITIES CITED(cont'd) People v. Taylor (2010) 48 Cal.4th 574 People v. Thompson (2010) 49 Cal.4th 79 People v. Vargas (1973) 9 Cal.3d 470 People v. Weaver (2001) 26 Cal.4th 876 People v. Welch (1999) 20 Cal.4th 701 People v. Wharton (1991) 53 Cal.3d 522 People v. Williams (1997) 16 Cal.4th 153 People v. Young (2005) 34 Cal. 4th 1149 Raven v. Deukmejian (1990) 52 Cal.3d 336 Federal Cases Adamsv. Texas (1980) 448 U.S. 38 Atkins v. Virginia (2002) 536 U.S. 304 Ballew v. Georgia (1978) 435 U.S. 223 Blakely v. Washington (2004) 542 U.S. 296 Breard v. Greene (1998) 523 U.S. 371 Bryan y. Mullin (10Cir. 2003) 335 F.3d 1207 Buchanan v. Kentucky (1987) 483 U.S. 402 California v. Brown (1987) 479 U.S. 538 Chapman v. California (1967) 386 U.S. 18 184-194 184-194 141 105 105 138, 140 139 130, 131, 134, 135 165 160 101, 142-148, 152-158 178 185 195, 202 146 160 143 134 City of Cleburne v. Cleburne Living Center (1985) 473 U.S. 432 157 Cunningham vy. California (2007) 549 U.S. 270 xiii 185 TABLE OF AUTHORITIESCITED(cont'd) Coker v. Georgia (1977) 433 U.S. 584 148 Connecticut Nat'l Bank v. Germain (1992) 503 U.S. 249 211 Cooper v. Oklahoma (1996) 517 US. 348 49-51, 65-67, 75, 87, 109, 112 Davis v. Georgia (1976) 429 U.S. 122 182 Deitz v. Money (6th Cir. 2004) 391 F.3d 804 200 Donnelly v. DeChristoforo (1974) 416 U.S. 637 138 Drope v. Missouri (1975) 420 U.S. 162 Dusky v. United States (1960) 362 U.S. 402 Enmundv.Florida (1982) 458 U.S. 782 Fisher v. United States (1946) 328 U.S. 463 Ford v. Wainwright (1986) 477 U.S. 399 Godinez v. Moran (1993) 509 U.S. 389 Gomez v. United States (1989) 490 U.S. 858 Gray v. Mississippi (1987) 481 U.S. 648 Gregg v. Georgia (1976) 428 U.S. 153 Illinois v. Allen (1970) 397 U.S. 337 Indiana v. Edwards (2008) 554 U.S, 164 Johnson v. Zerbst (1938) 304 U.S. 458 Lawrence v. Texas (2003) 539 U.S. 558 87, 93, 106, 113 49 143, 147 86 148, 153 50, 51, 66, 67, 75 172 175, 178 143, 177 129 50, 95, 104 122, 133 86 Lockhart v. McCree (1986) 476 U.S. 162 161-170, 175, 178, 180, 182 TABLE OF AUTHORITIESCITED (cont'd) v.(1988) 438 U.S. 586 177 Kansas v. Marsh (2006) 548 U.S. 163 193 Maxwell v. Roe (9th Cir. 2010) 606 F.3d 561 106 Medellin v. Texas (2008) 552 U.S. 491 200, 205, 209-211 Medinav. California (1992) 505 U.S. 437 49, 87, 112 Morgan v.Illinois (1992) 504 U.S. 719 163 Qsagiede v. United States (7th Cir. 2008) 543 F.3d 399 200 Panetti v. Quarterman (2007) 551 U.S. 930 153 Penry v. Lynaugh (1989) 492 U.S. 302 147 Powers v. Ohio (1991) 499 U.S. 400 172 Pulley v. Harris (1984) 465 U.S. 37 193 Riggins v. Nevada (1992) 504 U.S. 127 49 Ring v. Arizona (2002) 536 U.S. 584 185, 186, 189 Rochin v. California (1952) 342 U.S. 165 86 Roper v. Simmons(2005) 543 U.S. 551 87, 143-146, 151,153, 156 Sanchez-Llamas v. Oregon (2006) 548 U.S. 331 201, 206 Taylor v. Lousiana (1975) 419 U.S. 522 173, 174 Torres v. Prunty (9th Cir. 2000) 223 F.3d 1103 106 Turner v. Murray (1986) 476 U.S. 28 182-183 United States v. Booker (2005) 543 U.S. 220 185 United States v. Carolene Products (1938) 304 U.S. 144 164 XV TABLE OF AUTHORITIESCITED(cont'd) United States v. Duncan (9" Cir. 2011) 643 F.3d 1242 104 United States v. Gagnon (1985) 470 U.S. 522 129 United States v. Kerr (9"" Cir. 1992) 981 F.2d 1050 139 United States v. Rangel-Gonzalez (9th Cir. 1980) 617 F.2d 529 201 United States v. Rudberg (9™ Cir. 1997) 122 F.3d 1199 140 Wainwright v. Witt (1985) 469 U.S. 412 160, 167, 175 Witherspoonv.Illinois (1968) 391 U.S. 310 166, 175-180, 182 Woodson v. North Carolina (1976) 428 U.S. 280 171 Foreign Cases Avena and Other Mexican Nationals (Mexico v. U.S.) 2004 I.C.J. 12 (Judg. ofMar. 31) 206-213 Commonwealth v. Gautreaux (Mass. 2011) 458 Mass. 741 201 Corcoran v. State (Ind. 2002) 774 N.E.2d 495 146 ICTY, Prosecutor v. Pavle Strugar (Appeal Judgment), IT-01-42-A (17 July 2008) 93, 115-117 Kesavarajah v. R. [1994)181 CLR 230 89, 114, 117 LaGrand Case (F.R.G, v. U.S.), 2001 I.C.J. Reports 196 Public Prosecutor v. Misbah Bin Saat [1997] 3 MLJ 495 115 R. v. John M [2003] EWCA Crim 3452 90 R. v. Miller [No. 2] [2000] SASC 152 89, 117, 120 R.v. Presser [1958] VR 45 88 XVi TABLE OF AUTHORITIES CITED (cont'd) Special Panels on Serious Crimes (East Timor) Deputy General Prosecutor for Serious Crimesv. Joseph Nahak, Case No. 01A/2004 92, 117-121 State v. Morales-Mulato (Minn. App. 2008) 744 N.W.2d 679 202 State v. Nelson (N.J. 2002) 803 A.2d 1 146 European Court ofHuman Rights, S.C. v. the United Kingdom, No. 60958/00 (Judgment of 15 June 2004) 91 Torres v. State (Okla. Crim.App. 2005) 120 P.3d 1184 205 Valdez v. State (Okla.Crim.App.2002) 46 P.3d 703 201 Constitutional Provisions California Constitution, art. I, section 15 129 U.S. Const., Amd. IV, V, VI, VIII, XIV passim State Statutes Penal Code section 187 2 Penal Code section 190.2(a)(3) 2 Penal Code section 245 2 Penal Code section 246 2 Penal Codesection 834(c) 198 Penal Code section 977 129 Penal Code sections 1026-1027 100 Penal Codesection 1043 129-130 XVil TABLE OF AUTHORITIESCITED(cont'd) Penal Codesection 1367 50, 91 Penal Codesection 1368 2 Penal Code section 12022.5 2 Penal Code section 12022.53 2 Penal Code section 12022.7 2 Federal Statutes Consular Notification Compliance Act, 112th Cong. (1st Sess. 2011), § 4(a)(1) 210 Foreign Statutes Criminal Code, R.S.C.s. 2. (1985) (Can.) 91,115 Criminal Code, R.S.C. s. 672.23(1) (1985) (Can.) 115 Vienna Convention on Consular Relations U.N. Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions (1997) 13, 18 Law Review Articles Adams, James J.. MD, Competency To Stand Trial Evaluations In New Hampshire: Whois evaluated? What are the findings? New Hampshire Bar Journal (Winter 2006) 118 American Bar Association Section of Individual Rights and Responsibilities, Death Without Justice: A Guide for Examining the Administration of the Death Penalty in the United States, 63 Ohio St.L.J. 487, 529 (2002) 149 Bowers, W., The Capital Jury Project: Rationale, Design, and Preview ofEarly Findings, (1995) 70 Ind. L. J. 1043 167 XViii TABLE OF AUTHORITIES CITED(cont'd) 30 Mental & Physical Disability L. Rep. 668 (Sept.—Oct. 2006) 151 Bowers, W. & Foglia, W., Still Singularly Agonizing: The Law's Failure to Purge Arbitrariness from Capital Sentencing (2003) 39 Crim. Law. Bull. 51 167 Byrne, Lockhart v. McCree: Conviction-Proneness and the Constitutionality ofDeath-Qualified Juries (1986) 36 Cath. U. L. Rev. 287 164 Garvey, The Overproduction ofDeath (2000) 100 Colum. L. Rev. 2030 169-170 Haney,et al., "Modern" Death Qualification: New Data on Its BiasingEffects (1994) 18 Law & Human Behavior 619 164 Kadane, Juries Hearing Death Penalty Cases: Statistical Analysis of a Legal Procedure (1984) 78 J. American Statistical Assn. 544 162 Kadane, After Hovey: A Note on Taking Account ofthe Automatic Death Penalty Jurors (1984) 8 Law & Human Behavior 115 162 Luginbuhl & Middendorf, Death Penalty Beliefs and Jurors' Responses to Aggravating and Mitigating Circumstances in Capital Trials (1988) 12 Law & Human Behavior 263 162, 163, 169 Moar, Death Qualified Juries in Capital Cases: The Supreme Court's Decision in Lockhart v. McCree (1988) 19 Colum. Hum. Rts. L. Rev. 369 164, 166, 169 Pescocolido et al., A Disease Like Any Other? A Decade ofChange in Public Reactions to Schizophrenia, Depression, and Alcohol Dependence," Am.J.Psychiatry (2010) 167: 1321-1330 148 XIX TABLE OF AUTHORITIES CITED(cont'd) Peters, Constitutional Law: Does "Death Qualification” Spell Death for the Capital Defendant's Constitutional Right to an Impartial Jury? (1987) 26 Washburn LJ. 382 Pirelli, Gianni, et al., A Meta-Analytic Review of Competency to Stand Trial Research, 17 Psychology, Public Policy, and Law 1, 2 (2011) Rozelle, "The Principled Executioner: Capital Juries' Bias and the Benefits of True Bificurcation" (Fall 2006) 38 Ariz. St. L. J. 769 Seltzeret al., The Effect ofDeath Qualificiation on the Propensity ofJurors to Convict: The Maryland Example (1986) 29 How.LJ. 571 Slobogin, Beyond Atkins: A Symposium on the Implications ofAtkins v. Virginia, 33 N.M.L.Rev. 293 (2006) Smith, Due Process Education for the Jury: Overcoming the Bias ofDeath Qualified Juries (1989) 18 Sw. U. L. Rev. 493 Stone, Alan M.D., Psychiatric Times, Supreme Court decision raises ethical questions for psychiatry, Vol. XIX; Issue 9, September 2002 Tabak, Ronald J., A More Rational Approach to a Disturbing Subject --_ Mental Disability and Capital Punishment, 25 St. Louis U.Pub.L.Rev. 283 (2006) Thompson, Death Qualification After Wainwright v. Witt and Lockhart v. McCree (1989) 13 Law & Human Behavior 185 Weiner, Phillip L., Fitness Hearings in War Crimes Cases: From Nuremberg to the Hague, 30 B.C.Int'l & Comp.L. Rev. 185, 197 (2007) 167 88, 118 168 162, 169 153, 158 163, 164, 166 77 151 164, 165, 169 116 TABLE OF AUTHORITIESCITED(cont'd) Newspaper and Magazine Articles Liptak, Facing a Jury of (Someof) One's Peers, New York Times (July 20, 2003) 174 Moller, Death-Qualified Juries Are the ‘Conscience ofthe Community'? L.A. Daily Journal, (May 31, 1988) 174 Rosenburg, Deadliest D.A. (1995) N.Y. Times Magazine (July 16, 1995) 170 Governmental Reports & Professional Journals American Bar Association, ABA Criminal Justice Mental Health Standards (1989), Standard 7-4.4 (a) 75,115 American Bar Association, ABA Criminal Justice Mental Health Standards (1980), Standard 7-4.1 75 American Psychological Association, The Death Penalty in the U.S. (August 2001) at www.apa.org/about/governance/council/ policy/death-penaltyaspx 149 Amnesty International's Report ofJanuary 2006 at www.amnesty.org/en/library/asset/AMRS51/003/2006, p. 10, fn. 23 150 Diagnostic and Statistical Manual of Mental Disorders, 4" edition 12, 13, 18, 153 National Alliance on MentalIllness, report released July 6, 2009, entitled Double Tragediesat www.nami.org/doubletragedies 149 U.S. Departmentof State, Consular Notification and Access (3rd ed., Sept. 2010) and Instructions (Jan. 1988) 196, 197 U.N. Commission ofHuman Rights (2000) 152 TABLE OF AUTHORITIESCITED(cont'd) U.N. Safeguards Guaranteeing Protection of the Rights of Those Facing the Death Penalty (1984) 151 U.N. Special Rapporteur 151 U.S. Senate Committee on the Judiciary 212-213 157 Cong. Rec. $3779-80 210 157 Cong. Rec. $4216 211 XXxii IN THE SUPREME COURT OF THE STATE OF CALIFORNIA ) Calif. Supreme Court PEOPLE OF THE STATE OF CALIFORNIA ) No. S$143743 ) Plaintiff and Respondent, ) Stanislaus Co. Super. ) Ct. No. 1034046 V. ) ) . HUBER JOEL MENDOZA, ) Automatic Appeal ) Defendant and Appellant. ) ) APPELLANT'S OPENING BRIEF INTRODUCTION Appellant was unable to rationally communicate with orassist his attorneys in his defense at any stage ofthe case. Defense counsel repeatedly stated to the court their numerousdifficulties. A jury trial was held within a year of his arrest and appellant was found competent. Appellant maintains that that the evidence wasconstitutionally insufficient to support the jury verdict. Defense counsel continued to urge the court to reconsider appellant's competency tostandtrial, prior to, during and after the jury trial on the guilt, sanity and penalty phases ofthe trial. Despite the changed circumstances, including a mid-trial breakdown by appellant leadingto his absence from the courtroom during testimony, and a newreport by a psychological expert, the trial court refused to reconsider the question. Consequently, appellant's convictions and sentence of death must be reversedas a violation of his federal due processrights. STATEMENTOF THE CASE Information Number 1034046 wasfiled in Stanislaus County Superior Court on January 23, 2003, charging appellant in counts one, two, and three, respectively, with the murders of Alicia Martinez, Carlos Lopez, and Camarino Chavez,in violation ofPenal Code! section 187; in count four with shooting at an occupied building in violation of section 246; and in count five with armed assault on Guadalupe Martinez in violation of section 245, subdivision (a)(2). A multiple murder special circumstance” allegation was attached to counts one, two, and three, pursuantto sections 190.2, subdivision (a)(3). Firearm enhancements werealso attached to counts one through four pursuant to sections 12022.7, 12022.53(a)(b)(c)(d) and 12022.5(a)(1), and a great bodily injury enhancement wasattached to count five pursuant to section 12022.7(a). (1CT 63-68.) On November12, 2003, defense counsel declared a doubt as to appellant's competency and requested the proceedings be suspended under section 1368. (1CT 118-19.) After two experts found appellant ' All further statutory citations are to the California Penal Code unless specifically stated otherwise. 2 A burglary felony murder special circumstance alleged in the information waslater struck. (SRT 875-1.) incompetent and one found him competent, the matter wassetfortrial. Jury trial began on December8, 2004, and on December 15, 2004, the jury found appellant competent to stand trial. (1CT 195; 1CT 242.) On February 24, 2005,the trial court denied the defense motion forjudgment notwithstanding the verdict, and refused to reinstate proceedings under section 1368. (1CT 267.) On June 1, 2005, appellant entered a plea ofnot guilty by reason of insanity. (2CT 526-27.)° Jury selection began on October 21, 2005. On November 1, defense counselreiterated a doubt as to appellant's competency, which was rejected by thetrial court. Testimony began that same day. (3CT 796-97.) On November9, 2005, the jury found appellant guilty as charged and returned a true finding on the multiple murder special circumstanceallegation. (3CT 804.) On November 15, 2005, the sanity phase ofthe trial began and on November30, 2005, the jury returned a verdict of sane. (4CT 890, 918.) The penalty phase ofthe trial began on December6, 2005, and on December 16, 2005, the jury returned a verdict of death. (4CT 959, 1030.) Appellant's motion for new trial was denied. (4CT 1037; 16RT 3428.) On April 25, 2005, the court denied the defense motion for reconsideration 3 In accordancewith this plea, two doctors were appointed pursuant to sections 1026-1027. (2CT 527-28; 537; 562; 3CT 623. 632.) and/or modification ofthe verdict, and sentenced appellant to death. (4CT 1084, 1095; SCT 1382-83.) GUILT PHASE STATEMENT OF FACTS A. Evidence Elicited by the Prosecution. 1. Percipient witnesses. Appellant's estranged wife Cindi Martinez’testified that appellant called herin the early morning hours ofDecember 12, 2001 andsaid he had just killed her whole family; he told their oldest son Huber he was coming to their apartment. WhenCindi's call to her mother went unanswered, she called 911 and reported appellant's conversation (1ORT 1886, 1890, 1896- 97; 4CT 1098a-d [transcript of 911 tape].) Cinditestified that she and appellant had not been intimate for some time and had had separate bedrooms for a year. She moved into her own apartment in Novemberof2001, a month before the shootings, when she started a sexual relationship with Caramino Chavez, a family friend who lived at her parents' house. (1ORT 1900-04.) Cindi was the primary wage earner and paid appellant $20 a day to cook, clean and watch the children; he paid for halfthe rent on their house. (LORT 1910, 1918-19.) Thetragic 4 Forclarity and ease of reference, and with no disrespect, appellant calis the witnesses surnamed Martinez by their first names. 4 shooting was totally unexpected. Appellant had never threatened or hit her and didn't use drugs oralcohol.” (ORT 1922.) Cindi's younger sister Guadalupe Martinez, their mother and father Alicia and Jose Luis Martinez, their cousin Carlos Lopez, and family friend and Cindi's new lover Camarino Chavez,all lived in the Martinez home. (QRT 1660.) Guadalupe awoke to screams and gunshots sometimeafter 10:00 p.m.that night. She heard footsteps going past her bedroom, and heard appellant tell Chavez that he had messed with the wrong guy, and that he shouldn't have messed with a married woman. (9RT 1661-64.) After that Guadalupe heard more gunshots. She realized (after the fact) that she had been shot in the arm from a bullet that went through the wall ofher room and screamed for her mother. Appellant called her name andasked if she wasinjured. Hetried to convinceher(in a normaltone ofvoice) to open the door but she was afraid. Appellant pushed the door open and asked where her parents were. Guadalupesaid she didn't know. When appellant walked towards her parent's bedroom,she followed. (9R 1665- 67.) Appellant tried to convince Mrs. Martinez to come out. When appellant promised not to hurt Mrs. Martinez, Guadalupe asked her mother to come out. Appellant pushed open the door and pushed Guadalupeinto ° Cindi was impeachedwith her prior statement to her mother about getting into a fight with appellant in which they pushed each other and he got her "like this" [demonstrating] across her throat. (1ORT 1924-26.) the hall to the living room. She heard her mothercrying andtelling appellantnotto hurt herlittle girl. Appellant asked Mrs. Martinez how she could have allowed Cindi to see another man while she was marriedto him. Mrs. Martinez said she did not approve of Cindi's relationship and said she loved appellant. Appellant shot Mrs. Martinez and then looked for Mr. Martinez (who was outside). (QRT 1668-72.) Guadalupe asked appellantto take her to the hospital. He offered to call an ambulance but whenthe call didn't go through he said he would take her. (QRT 1673-74.) Guadalupe and appellant left the house in appellant's van. Appellant was wearing a camouflage helmet, black boots and a vest,° and was carrying a gun that he put in the back ofthe van. Hecalled Cindi, said he had killed her family and that she was next, then hung up. (9RT 1675-76.) Guadalupedescribed appellant as seeming crazy and notlike the person she had known her whole life. He was usually quiet and spentall his time with his children. (ORT 1680-82, 1686-87.) By the time they were in the van, appellant seemed "to kind of comebacka little bit." He started crying and repeatedly apologized. (9RT 1687-88.) He alsocalled his brother, said he had committed a terrible crime, and would leave the brother 6 The vest was bullet-resistant and similar to those used by the police. Another vest found in appellant's van wasnotrated to protect against handguns. (11RT 1998-99.) $11,000 wrappedin a diaper.’ They drove byhis brother's house where appellant threw the money out the window,then droveto the hospital where Guadalupe underwentsurgery on her arm.® (ORT 1677-79.) Appellant approached hospital security guard Eustaquio Martin Ramosandsaid he wanted to turn himself in for having shot his mother-in- law. Hetried to hand Ramosa pair ofhandcuffs. Ramos used his own pair ofhandcuffs on appellant. Appellant said his gun was in the van.” (10RT 1744-49.) Jose Luis Martinez awoke at 2:50 a.m. to gunshots and shouting from Lopez. He and Mrs. Martinez went outside but when Guadalupe called her mother, Mrs. Martinez shoved Mr. Martinez down and wentinto the house. (LORT 1704-05.) When it was quiet, Mr. Martinez went inside 7 This money wasthe proceeds from property appellant had sold in Mexico and waskept in a box(the unusedrefrigerator) at appellant's home because appellant did not trust banks, the government, or his own mother. (ORT 1902-03, 1920-21.) 8 Dr. Donn Fassero performed emergency surgery on Guadalupe's arm. Her bone wasshattered with considerable muscle damage. A second surgery was performedto puta stabilizing plate on the bone. (1ORT 1871- 79; ORT 1679.) 9 It was stipulated that appellant's and the victims' blood tested negative for alcohol and controlled substances. The bloodstains on appellant's clothing were from his own blood: appellant had an abrasion on his right thumb when taken into custody at the hospital. (LORT 1950-51; 1IRT 1994-95.) and saw, Lopez and Chavez all dead.!° He asked his neighborsto call the police. (ORT 1705-06.)" 2. Police officer testimony. Detective Henry Dodge Hendee supervised the crime scene video that was playedfor the jury.'* (10RT 1752, 1765; Exh. 1.) Mrs. Martinez’ body wasonthe floor in living room; Carlos Lopez’ body was on the kitchen floor; and Camarino Chavez' body was on the bedroom floor. (10RT 1763, 1768, 1773.) A total of 72 casings and one unexpendedcartridge were found at the scene, outside the front window,in the living room, hallway and in Chavez' bedroom. Nonewere found in Guadalupe's bedroom.”? (10RT 10 Dr. Jennifer Rulon conducted autopsies on all three victims. Alicia Martinez died from two gunshot woundsto the head. Carlos Lopez died of four gunshot wounds, twoto the head, and twoto the chest. Camarino Chavez was shot 12 times and died ofmultiple woundsto the head and chest. (11RT 2067, 2072-74, 2078, 2097.) uN Jose had three guns in a locked closet. (1ORT 1706-08.) When he returned to the house, his pump action gun was leaning against door frame and the closet door was smashed andbullet-riddled. (LORT 1712-13.) 2 Officer Scott Muir entered the house as part of a SWAT team. The front door was open and the front room window wasbroken out. Muir found three bodies in the house. (QRT 1653-59.) B Twenty-ninerifle casings were found (15 outside, 11 in the living room, and three in the hallway); twenty-five 9 mm. casings were found (four in the kitchen, 13 in the hallway, seven in Chavez' bedroom, and one in the hallway bathroom; eighteen .45 caliber casings were found (one in the living room, seven in the hallway, two in Chavez’ bedroom andeightin the master bedroom). (LORT 1819-21.) 1819-21.) Bullet fragments were foundin the hall and laundry room,living room and backyard, and four complete bullets were found in the kitchen. (10RT 1770-72.) An SKS45 7.62 caliber assault rifle, a Ruger 9 mm. semiautomatic handgun, and an empty .45 caliber magazine for a Colt .45 handgun were found in the living room. (LORT 1757-65.) The guns had all been emptied of ammunition. (LORT 1811.) The Colt .45 was foundin appellant's van, along with a military style vest, a flashlight, rope, handcuffs, gas mask, duct tape, a sledge hammer, and 13 family photos some ofwhich were framed. (LORT 1841-55.) Detectives Philip Owen and Steven Jacobson searched appellant's residence, a house described by Jacobson as extremely messy ("a disaster"). (11RT 2105-08.) Owentestified that 14 boxes of ammunition ofvarious calibers were found in a refrigerator in the bedroom closet that was used as a safe. Sales receipts from authorized gun dealers dated 1994-95 were found for the three guns found at the scene and in appellant's van, along with someholsters and a gun case. (1ORT 1725-34, 1737.) Nofirearms were foundin the search of appellant's house. (11RT 2108.) Criminalist James Hamieltestified as a firearms and ammunition expert. (LORT 1929-31.) The expended casings foundat the scene had been fired from the guns recovered at the scene and in appellant's van. (10RT 1035-41.) Each ofthe three guns was a semi-automatic and each had an averagetrigger pull. (LORT 1039-40, 1942.) Detective Jon Buehlertestified that the .45 Colt had an "extended" magazine holding 15 rounds. (11RT 2001-03.) B. Evidence Presented by the Defense. Tuolumne Elementary School principal Nancy Jonesfirst met with appellantat the school around December 10, 2002, when she heard him talking to the secretarial staff. Appellant seemed distraught and said that he didn't wantto leave Angel in schoolas children become corrupt sometimes as they get older. He was crying andsaid that his son Angel would be better at home.’* (11RT 1974-77.) The interaction was extremely unusually but Jones agreed the boy should go home with appellant; she then arranged a family intervention at appellant's home. (11RT 1978-79.) Jones' intention at the meeting was to get help in getting the children to school every day. However, appellant always took the discussion in other directions and appellant was very upset; his sons were very loving and very attached to him. Jones was concerned that appellant was suicidal and thought there was "somestrange stuff going on" with him. He seemed depressed and possibly angry. Appellant told her the world was evil and i Angel would also cry non-stop at school until he was taken home although the other two boys behaved well, and all three boys were well- groomed. (11RT 1980-81.) 10 that he didn't trust the government. Hesaid he didn't want to leave his sons at school; while young they were angels, but when they grow up they become corrupt. (11RT 1182-92.) Deputy Jaime Jimenez (working as a school resource deputy at the elementary school) also had a conversation with appellant around that time about appellant's wife separating from him. Jimenez offered to direct appellant to a support group. Appellant agreed to talk with Jimenez and school principal Nancy Jonesat his (appellant's) home. (11RT 1951-58.) Appellant's wife and their three sons were also present. Jimenez's concern wasthe boy Angel's attendance at school. However, the discussion turned to appellant's concern with his sons knowing about his wife's new boyfriend. For some 30 to 45 minutes, appellant was emotionaland crying; the children were clinging and hanging on to appellant who was hugging them back. (11RT 1961-65.) Jones and Jimenez were both concerned that appellant might be suicidal; when asked appellant said he had felt like committing suicide since he was 24 years old. (11RT 1963-65.) When Jimenez offeredto find an outside agency or support group for divorced fathers, appellant was receptive. Shortly after the meeting ended, appellant phoned Jimenez for the information. Jimenez said he would work onit and get back to him, but never did. (11RT 1965-67.) It was difficult to keep appellant focused on his son's school attendance record; he talked randomly about his marital 11 problems, the government, his distrust of agencies,etc. Appellant agreed the boys should leave with Cindi. (11RT 1970-72.) SANITY PHASE STATEMENT OF FACTS A. Evidence Presented by the Defense. Dr. Pablo Stewart performed a psychiatric evaluation of appellant in the summerof2003 to determineifhe suffered a mental disease or defect at the time ofthe incident and if so, whetherit contributed to his behavior. Dr. Stewart's opinion was that appellant suffered from a long- standing mood disorder with psychotic features (consistent with a major depressive disorder with psychotic features) which was chronic and persistent. (12RT 2241-42.) Psychosis, or a loss of contact with reality, is a symptom ofmental illness rather than an illness itself.!° (12RT 2258.) Basedonfacts elicited in interviews with appellant, his wife,'° and his family in Mexico, Dr. Stewart concluded that appellant met the criteria for this diagnosis as set forth in the DSM-IV [Diagnostic and Statistical Dr. Stewart defined delusional thinking as thoughts not based in reality, and over-elaborated religious ideation is an example of a psychotic symptom,thoughnotall religious experience is psychotic.) (A2RT 2259- 60.) ‘6 Appellant's wife had tried repeatedly to get appellant to treatment, howeverappellant never believed anything was wrong with him, whichis common among the mentally ill: the illness impairs the patient's ability to appreciate that he is sick. (12RT 2261.) 12 Manual ofMentalDisorders, 4" edition], "” i.e., he was depressed and irritable, manifested marked diminishedinterest, fluctuations in weight, fatigue and sleeping difficulties, feelings of guilt or worthlessness, and a diminished ability to concentrate. Appellant's symptoms included emotional tearfulness, obsessive rumination, anxiety and phobias, sexual dysfunction, and work and marital problems. Appellant had been suicidal since the age of 24 and because of his mentalillness, he had become unable to work or care for himself. (12RT 2243-52.) Appellant's condition was genetically induced and biologically mediated, i-e., an illness of the brain most likely caused by a deregulation ofneurotransmitters (chemicals that make connectionsin the brain). (12RT 2249-52.) Although appellant's disease had a "chemicalbiological basis" the only way to diagnoseit was through a clinical examination such as that conducted by Dr. Stewart — no blood or X-ray test is available. (12RT 2253.) Appellant had not been medicatedprior to his arrest. While in custody, he was twice medicated, but stopped taking the medications both times, which is common among mentally ill patients. (12RT 2254-56.) In clinical interviews, appellant presented with poor hygiene and depressive speech; he was sad andtearful; his thinking was exceeding psychotic, "7 Wikipedia, the online encyclopedia, defines the DSM-IV as a manual published by the American Psychiatric Association that includes all currently recognized mental health disorders. 13 paranoid, disorganized and obsessive. He was stuck on the theme about people out to corrupt children andthe need to protect children. For example, if asked what he had for breakfast, or about the shooting, appellant would respond with paranoid remarks about corrupting children. (12RT 2265-70.) Appellant was unable to appreciate the wrongfulness ofhis actions at the time ofthe shooting because he wassuffering from the delusion of the needto protect children. The morning of the incident, appellant's children had been taken from him after the meeting with the school principal, so his worst delusion-based fears had been realized. According to his delusional thinking he prepared himself for a "holy battle" to make sure his children were not taken overto the dark side. In appellant's delusional mind,his action felt justified. For example, when Jones and Jimenez visited appellant's house it was tidy, but in the post-shooting police search the house wastrashed. It appeared that during that time, appellant was so agitated he tore the whole place up;this action and his reported inability to sleep were consistent with his mental illness. (12RT 2271-75.) Dr. Stewart testified that appellant's shouting at Chavez and Mrs. Martinez (as per Guadalupe's testimony) was consistent with fact that appellant went to the house to end the corrupting influence on his children. (12RT 2276-77.) Cindi had told appellant about her liaison with Chavez sometime before: but it was only when appellant's oldest son reported 14 Cindi and Chavez huggingin front of the children that the theme of corruption started building in appellant's mind in terms of taking purposeful acts. Appellant was aware of what he was doing in that he made plans and got weapons. However, the reason he acted was based on a delusional idea ofpreventing his children's corruption. Appellant did not know right from wrong in any moral senseat that time. (12RT 2277-79.) While the shooting of Chavez wasa classic example ofoverkill implying the presence of a severe psychotic illness, appellant did not kill Guadalupe becausein his eyes she was still a child and not a corrupter. (12RT 2280, 2286.) Appellant's statement to Chavez that he was "messing with the wrong man" wasconsistent with appellant's delusion, not inconsistent, as when he told Mrs. Martinez that she should not have allowed Cindi's affair with Chavez to occur in her house -- becausein appellant's delusion that corrupted his children. (12RT 2308-09.)'® In the absence of his mental iliness, appellant would not have acted under a beliefthat he needed to kill to protect his children. Appellant had no history of bad behavior. (12RT 2291.) Appellant was awareofthe nature and quality of his act, i.e., he understood he was killing, but he was unable 18 Appellant's brother Javier Mendozatold the police that appellant suffered auditory hallucinations and that this continued in a recent phone call with his sister, and this is consistent with a major depressive disorder with psychotic features. (12RT 2288-89.) 15 to distinguish right from wrong becauseofhis mental ifIness.'? (12RT 2292-93.) Dr. Wendy Weiss,a clinical and forensic psychologist, was hired by the court to evaluate appellant. (12RT 2365, 2370.) Dr. Weiss reviewed police reports and videotapesofthe police interview with appellant and interviewed appellantin jail for two hours on July 19, 2005. She diagnosed appellant as suffering from depression with emerging psychotic features, disorganized thinking and paranoia at the time ofthe crimes. (12RT 2370- 73.) His delusional anddistorted thinking led him to feel justified in his behavior whenhekilled, under the beliefthat he was tryingto take his children out ofharm's way. He knew that this was wrong,but believed it was whathe hadto do to protect his children. (12RT 2384-87.) Appellant felt justified in his actions because he believed his children were being harmed or damaged. (12RT 2293.) 9 On cross-examination, Dr. Stewart testified that appellant understood that he was killing, but not that it was wrong. (12RT 2310-14.) The prosecutor referred to appellant's statement that the government could give him money,and the nurse's notes stating that appellant denied suicide ideation; and denied hallucination when he talked to Dr. Zimmerman. (12RT 2338-41.) The prosecutor also asked about appellant's phone call after the verdict in which he said he wasn't crazy and it was games by the attorneys. Dr. Stewart testified this was part of appellant's mental illness. (12RT 2338-41.) On redirect, Dr. Stewart pointed out that appellant said defense counsel waspart of the prosecuting team that wanted to hurt his kids, i.e., an example of his delusional thinking. (12RT 2345.) 16 Dr. Weisstestified that although appellant's thinking was distorted, he did understandthat his actions were wrong. (12RT 2395-96.) However, in her report, Dr. Weiss stated that there was insufficient data to indicate whether, as a result of a mental disease, appellant was incapable of understanding the nature and quality of his actions. (12RT 2396-97.) Dr. Weiss believed that although appellant had some elements ofthought disorder and depressive disorder at the time ofthe killings, his mental state haddeteriorated since that time as a result of the traumatic event.”° (12RT 2411.) Dr. Robin Schaeffer, a clinical psychologist on the staff at the Doctors Medical Center and on the faculty at U.C. Davis School of Medicine, conducted sanity and competency evaluations for the court in his 20 Onredirect examination, Dr. Weiss stated her opinion that appellant was suffering from depressionat the timeofthe crime and was "becoming psychotic" and operating under some delusional thoughtprocess." (12RT 2429.) She agreed that according to the December18 progressnote, appellant was lockedinto ideation about defending children and had "no choicebutto kill." (12RT 2435.) Dr. Weiss relied on appellant's statement in the police interview (that he had a bullet resistant vest because he didn't want to kill himself, but ifhe did he would take people with him) as indicating that appellant went to the Martinez house with the idea that something bad was going to happen. (12RT 2420.) Giving his brother the cash after the shootings also showed that appellant understood right from wrong,i.e., that there would be serious consequences from his behavior. (12RT 2424.) Dr. Weiss was unawareofauditory hallucinationsor the report about him on December 15, 2001 talking to people not visible to others. She thought that this information, which she did not have when she reached her conclusions, was more relevant to the psychotic components of appellant's major depressive disorder and nothis belief in wrong or right at time of offense. (12RT 2431-33.) 17 private practice. In 2002, he was asked by the defense to examine appellant. (12RT 2444-50.) In addition to reviewing police reports and appellant's police interview, Dr. Schaeffer met with appellant on 26 occasionsfor a total of 30 hoursstarting in the summer of 2002 and ending a month before his testimony. (12RT 2450-51.) Dr. Schaeffer diagnosed appellant as suffering from major depression with psychotic features at the time ofthe offenses, given that there was "an overwhelming abundanceofevidence"that appellant met the criteria for that disease as outlined in the DSM-IV,including that appellant experienced guilt and worthlessness, depressed mood, diminishedinterest and pleasure, eating and sleeping disturbances, suicidal ideation, with a prominent thought disorder and paranoid delusions. (12RT 2452-56.) Appellant also metthe criteria for psychotic features although he was not schizophrenic. (12RT 2456-58.) Severe depression sometimesresults in psychosis because the chemical imbalanceis so severethat it affects not only the patient's mood but also the chemicals that allow one to function in the realm ofthought. (12RT 2459.) Appellant's psychotic delusion that his children were being adversely affected by their circumstancestranslated for appellant into a conviction that his children were being killed or destroyed. (12RT 2462.) / 18 Dr. Schaeffer concluded that appellant was capable ofknowing and understanding the nature and quality of his acts.”’ However, as a result of his psychotic brain disease, appellant was incapable of distinguishing right from wrongas to the acts of the offenses. (12RT 2463.) Appellant's mental disorder took place over five to six years during which time he becameincreasingly depressed and delusional and suspicious. He quit his job; he projected his fears onto his children and was overprotective to the extent he didn't want his smallest son to go to school; he becameincreasingly suicidal; and viewed everything, but especially his wife's affair, as a corrupting influence on his children. This culminated in his worst fears of losing his children being confirmed whenhis son reported that he saw his mother hugging and kissing Chavez — an act viewed by appellant as a gross immorality. (12RT 2464-70.) There was a breakdown in the ego boundaries between himself and his children. Appellant's references to his children and then "all the kids of the world andforall people" was an example ofthe psychotic loosening ofboundaries: appellant felt a need to defendall the children in the world, and believed thathis children were being destroyed and would be destroyed — thatis killed — if 21 Appellantstated in the interview that he would face LWOPorthe death penalty: this showed that he understood the nature and quality ofhis acts. (13RT 2511.) 19 he didn't take action.” Appellant thus had a delusional-basedjustification and belief that what he did was right and doneto protect his sons. (13RT 2504-05.) Dr. Schaeffer relied on testimony from principal Nancy Jones and Deputy Jimenez: Cindi told Jimenez appellant was acting so strange she hadto leave the house a week before; appellant expressed repeated rambling delusions in the meeting; and asked for help as he was fearing himself. (12RT 2467-68.) Dr. Schaeffer was ofthe opinion that appellant was not acting in a jealous rage — if that were true there would be no reason for him to target Mrs. Martinez which he did. (12RT 2475-76.) Appellant's acts ofplanning (getting weapons, etc.) were not inconsistent with him acting under a delusion: a delusional personis not incapable ofrational thought; rather his rational thought is directed by his delusion. In this case appellant wasfighting for his children, and in the grandiose aspectofhis delusion for all the children ofthe world. (12RT 2477.) Underhis delusional system, appellant had a moral imperative to prevent the destruction of his children. This delusional system was the result of a chemical imbalancein his brain: "too much dopamine here and 22 Appellant said that just before the killings he was "seeing them trying to rub their anuses,steal their dignity, their childhood." This was not an accusation ofmolestation but a bizarre delusion that his children were being destroyed, a delusion resulting from his mental illness. (13RT 2512- 14.) 20 not enough serotonin there,” resulting in the neurotransmitters "out of whack." (12RT 2478.) Appellant's delusional system prevented him for distinguishing wrong from right as to his acts; his delusional brain was telling him he wasright to do what he did. (12RT 2481-82.) Dr. Schaeffer pointed outthat in the three hours ofvideotape during which appellant was interrogated by the police and also made phonecalls to family members(the largest amount of data pertaining to his mentalstate at the time ofthe crime), appellant at times responded to questionsrationally (consistent with the doctor's opinion that he was capableoflogical reasoning and planning) but also on numerous occasions whenalone, he was crying, breathing hard andfast, and talking to himself in a manner consistent with someonein a very altered state having a psychotic episode. (13RT 2498-2500.) Moreover, appellant was experiencing auditory hallucinations, which are defined as an "extreme, profound symptom ofa psychoticbrain," indicative of such a biochemicalalteration such that the brain cannot distinguish between whatis inside and outside, resulting in experiencing one's own thoughts as a voice ofsomeoneelse speaking. (13RT 2501.) This was not a psychological phenomenon buta neurological one. (13RT 2502.) 21 Dr. Schaeffer concluded that appellant was legally insaneat the time ofthe crimes. Appellant believed he was justified in his behavior. > In spite ofbeing ableto distinguish legal from illegal, and being capable of rational thought and planning, appellant could not distinguish right from wrong because he was acting within his delusional system.” (13RT 2516- 17.) Psychologist Dr. Jonathon French was appointed by the court to evaluate appellant's sanity; he evaluated and interviewed appellant in 23 For example, appellanttold his sister-in-law Pati that he just wanted to defend andhelp his children, who "were beingkilled." Other people "wanted to eat them" and "turn them into something they [were] not" and make them bad. His children were "being killed" and he wanted "to defend them." (13RT 2506-07.) Appellant told the detectives that he "didn't want to hurt nobody. . . . All I want is for my kids to be okay." And "If I didn't love the victims. I wouldn't have cared about them enough to kill them, to makethey stop what they were doing." (13RT 2507-08.) 4 On cross-examination ofDr. Schaeffer, the prosecutor made a point about appellant's grandiosity (telling the police he could have been a judge or the president). Dr. Schaeffer explained the statementas a feeling of worthlessnesstransferred into grandiosity. (13RT 2560-61.) Dr. Schaeffer agreed that the planning that wentinto the crimes was consistent with his (Dr. Schaeffer's) conclusion that appellant was capable ofrationality; nonetheless appellant could not distinguish right from wrong — not even whenhe approachedthe security guard at hospital with handcuffs. He did know it was illegal, and he was at that moment coming outofthe delusional system he'd been operating under. (13RT 2566-67, 2570-71.) However, appellant clearly did not understand right from wrong when he wasinside the housecalling Alicia to task and when he shot Chavez and Lopez. (13RT 2573-74.) Dr. Schaeffer testified that despite appellant being able to rationally plan he had diminished ability to think as shown by unfocused and tangential at the school meeting and in his statementto the police. (13RT 2585,see also 13RT 2566.) 22 October, 2005 (a month before this testimony). (13RT 2588-01, 2609.) He diagnosed appellant with major depression. (13RT 2592.) Jail staff had reported appellanttalking irrationally to people not visible on December 15, 2001, which could be consistent with auditory and visual hallucinations. (13RT 2596.) The deputy's report said appellant was hearing voices, and that appellant was trembling and had clammyhands, which soundedlike he was having psychotic symptoms. (13RT 2599.) However, Dr. French saw no evidencethat appellant suffered major psychiatric symptoms. (13RT 2607-08.) Dr. French saw no evidence of malingering and agreed appellant was depressed and attempted to justify his actions in terms ofthe danger he perceived that his children were being corrupted. (13RT 2601-03, 2606.) Appellant acknowledgedthat his actions had damagedhis children as much as anything else, and that what he thought he was accomplishing turned out to backfire. (13RT 2608.) Dr. French's opinion was that appellant was legally sane. (13RT 2610, 2652.) He would have diagnosed appellant as suffering from major depression; but thought that appellant's concern with the damageto his children from his wife's affair, although excessive and obsessive, could plausibly be seen as a cultural reaction (as a dishonored and cuckolded Mexican male) rather than a than a delusional one. (13RT 2615-17, 2642- 44.) Dr. French believed that appellant's statement (in Spanish) about his children being eaten wasa referenceto a socially corrupting influence 23 rather than a physicalthreat. (13RT 2618-19.) He concludedthat appellant knewright from wrong despite his long-standing serious mental illness, noting that appellant admitted spontaneously within minutesafter the event that it was "wrong." (13RT 2621-22.) Detective Craig Groganinterviewed appellant on the morning of December 12, 2001. The interview was videotaped and the videotape was played to the jury (fast-forwarding through the portions when appellantis sitting alone andsilent in the interview room). (13RT 2654-55; 2659; 2662-1through 2661; Exh. NN at 5CT 1162-1340].) Appellanttold the police he loved his children and was a fool; he hadn't eaten for three days. Appellant was crying andtalking unintelligibly to himself. He was concerned for his children, and asked ifthey needed counseling: he didn't want anyone to harm or take revenge on them:they were innocent and beautiful, like the Bush children, like anyone's kids, they were angels. (SCT 1175-79.) Appellant said he did his best to protect his children, he cried, and said he wanted to die. He considered himself "mega-intelligent" but all he wanted was help for his children and everyone's children and himself. 25 Volume 13RT page 2658is followed by page 2659-1 through 2668- 1, which is followed by page 2659, after which the pages follow the usual sequence. 24 (5CT 1182-83.)”° Hesaid he couldn’t control what was in him,andthat was whyhe "did the choice ofbeing here"but also said "it's all under my control." (SCT 1190.) Appellant wanted to talk to his sons and said he hadn't slept well for quite a few days and was "kinda numb for what happened.” (SCT 1198-99.) Whenthe police arranged for a phonecall, appellant told him motherthat he had not bad intentions to harm anyone. "They were harming my beautiful children [] and wanted to eat them [] and turn them into something they are not, to be bad." He said he was going "to fight to the death for [his] beliefs" and for a perfect world andfor his beautiful children and all the children of the world. (SCT 1209-10.) He sobbed andsaid he couldn't take any more pain. He wantedthe best for his children: "maybe I was wrong, but I simply thought and thought and thought and I couldn't find another solution" because his children didn't deserve to have their innocence taken away. (5CT 1213-17.) Hesaid he had no control over what happened. Herealized what he had donebut "I just felt like my kids needed me" and didn't deserve that. (SCT 1223.) He said Cindi hada lot ofbad influence from her mother and father and she washurting his kids so much. She was seeing another man. "I was mad with my pain as aman." (5CT 1223.) *6 After hearing his Mirandarights, appellant said he preferred to have a lawyer, then said he didn't need a lawyer, and that he didn't have a lawyer unless one was appointed, then he said he was spiritually strong enough to handle it. (SCT 1187.) 25 The detectives were unable to get appellant to describe the events specifically but appellant talked about his duty towards his sons. He said the facts spoke for themselves. (SCT 1239-40.) Appellant said he had to do something to keep "those people from harming" his children. He referred to the nephew wholived in the Martinez homeand said "he was always seeing weird thingsthat he didn't like and knew they were hurting [his] kids." (SCT 1244.) Appellant referred to the abuse he got from his father but said that was past; people spit on him buthetried tolet it go. He alwaystried to take responsibility for his acts, and took the responsibility to protect his sons. (SCT 1246.) He didn't wantto hurt anyone;he just wanted to defend his children. (SCT 1258.) Appellant said Mr. Martinez never supported his marriage, and thoughtthe family including Chavez was dealing drugs. (SCT 1254-55.) His children said they saw Cindi hugging and kissing Chavez and that hurt them so much. (SCT 1258.) Appellant said he went over to the Martinez house with gun thinking that the men, particularly Chavez, would attack him; he took firearms because he would "fight to the death" for his children. (SCT 1269.) He had a rifle and two handgunsin the van, also two bullet-proof vests and a helmet he bought years ago at a surplus store. (SCT 1291-92.) Appellant did not recall the events inside the house becausehe just "lost [his] mind" but he said he took responsibility for what happened. (5CT 1271.) Appellant said he knocked at the window but no one answered, then a voice 26 said "get the fuck out." He thought he threw something through the window but wasn't sure. Hejust lost his mind at that moment and wanted to get inside so they hadto talk to him. They did not let him in the door and he went through the window. (5CT 1273-74.) He saw a knife and grabbedit, he felt threatened but also heard Guadalupe scream and he took her to the hospital because he loved her. He felt that someonetried to grab his rifle at first but he couldn't recall: "an army guy [] ora SWAT Team guy." (SCT 1275-76.) Appellant said he needed to talk to José or Alicia and he thought that was when he hit the window with a hammerto gain entry and then just started shooting. Appellant lost control ofhimself but he was desperate because he needed for them to stop what they were doing. (SCT 1297.) He talked to himself and cameto the pointthat if he had to defend himself or kill someone he would kill as much as he could and they could kill him because he didn't feel like staying in this world. He was blind andjust pointed andshot as the guy went back downthe hallway. Guadalupe screamed at him and hetold her she didn't understand, he loved his kids and whydid they let him live in their house, hurting his kids. (SCT 1298-99.) Appellant went to the next door and that guy wasreal scared; appellant didn't know if he had a gun andtried to open the door; he shot at the handle and then the guy was onthe floor and he kept shooting. The first one thatfell probably had the knife. (SCT 1300-01.) 27 Appellant heard Alicia screaming and confronted her, asking who she did that to her own grandchildren. He got more upset and shotthe door handle ofher bedroom;she waslocked in the bathroom and openedit up andtried to run; appellant got more upset and shot her. (SCT 1301-02.) Appellant said he should havetalked to them; they should havetalkedto him; he should not have used a firearm buthe just kept doingit because they were making him upset by nottalking to him. (5CT 1304.) Appellant thoughtifthe police came they could kill him; he took Guadalupeto the hospital and turned himselfin to a security guard. (SCT 1310.) Appellantsaid he just cared for everyone's children, especially his own. He complainedthat Cindi talked about black magic even in front of the children, and put weird things on his food; she burneda lot of candles and onceputrotten eggs on his boots. (SCT 1323-24.) Appellant said his brother Albertico had been in a mentalhospital for two weeksin 1991. (5CT 134-35.) His main concern wasfor his children. (SCT 1338.) Also played for the jury wasa tape recording ofthe December12, 2001 phonecall between appellant (in custody) and his oldest son Huber. (13RT 2665-66; Exh. OO at SCT 1341-51].) Appellant told his oldest son "it had to be done" and he "wantedto protect him." He didn't want anyone to take his sons' innocence. (SCT 1341-43.) He assured his sons that they 28 were not guilty of anything and that they would find happiness,telling them to help people as much asthey could. (SCT 1346-50.) B. Evidence Presented by the Prosecution. Psychologist Dr. Philip Trompetter was retained by the prosecution immediately upon appellant's arrest. From a separate room, Dr. Trompetter had observed much of appellant's December 12, 2001 police interview. (13RT 2668-69.) Based on these observations, Dr. Trompetter wasofthe opinion that appellant appeared depressed, distrustful and suspicious, but did not show evidence ofpsychotic features (such as delusions, hallucinations or disorganized thinking). Appellant appeared emotionally distraught and was apparently hyperventilating and possibly praying, but did not seem psychotic. Dr. Trompetter saw no indication of audio hallucinations or delusions ofpersecution. (13RT 2671-73.) However, he acknowledged reviewing documents from jail staff reporting that on December 15 and December 17, 2001, appellant wastalking irrationally to people notvisible to the staff.’” Dr. Trompetter agreed that those reports appeared to be evidence ofhallucinations experienced by appellant in the days after the interview observed by the doctor. (13RT 2693-95.) 27 The nurse's notes from December 14, 2001 indicated no evidence that appellant was experiencing delusions or hallucinations. (13RT 2697.) 29 The next day Dr. Trompetter had contact with appellant and asked him abouthis prior psychiatric history; appellant said he wasn't feeling well and the interview was terminated. Appellant did deny experiencing hallucinations and suicidal ideation, saying he was "mentally strong" and had never been hospitalized for psychiatric problems. (13RT 2675-77.) Dr. Trompetter did not consider appellant's rambling aboutthe evils of government, etc. as delusional, and appellant's distrust and cynicism and suspicion of the negative influences on his children did not strike Dr. Trompetter as bizarre or absurd. (13RT 2683-85.) Dr. Trompetter did not hear appellant's remark about his children being eaten. Ifhe had, he would have wanted more information; the statement sounds delusional. (13RT 2688.) Deputy Don Ewoldt was assigned to appellant's unitat thejail. Although appellant spoke "broken English," the deputy could understand him. Appellant was not a typical inmate, but was able to understand instructions. He wasinterested in soccer but was quiet and kept to himself. Several times appellant asked for phone or recreation time when he had already had his quota for the day — this was typical inmate behavior. (13RT 2708-14.) Detective Jon Buehler took part in appellant's December 12, 2001 interrogation. (13RT 2715.) Buehler explained that when hetold appellant he “must have been crazy" to commit the crimes, he was not espousing that 30 view buttrying to build rapport with appellant. (13RT 2717-19.) When Buehler told appellant he had made several "good decisions" following the shooting, such as taking Guadalupeto the hospital and turning himselfin, he wastelling the truth; but Buehler also made the statement in an attempt to build rapport with appellant. (13RT 2721-22.) Buehler told appellant he was "not a monster,” by which he meantthat although the crime was monstrous, he saw a difference in appellant's offenses (why hedid it) and other multiple murders. Appellant was cooperative but depressed and crying. (13RT 2725-26.) Criminal investigator Froylan Mariscal reviewed some of appellant's Spanish-speaking phonecalls on the jail computer system. (13RT 2732.) Appellant often spoke to his children about scores of soccer games. (13RT 2735.) Police department clerk and interpreter Beverly Valdivia listened to the tape recording ofa July 28, 2004 phone conversation between appellant and his sister-in-law Pati and made variouscorrections ona transcript that had been prepared by someoneelse.”* The tape recording was played for the jury. (13RT 2739-41; Exh. 141-A.) Appellant said "many bad things" were being doneto his children; he said nothing wasgoingto be fixed with 8 Shetestified to various changes she madeto the transcript: for example, when appellant asked to send someoneto the jail with cigarettes, this had beentranslated as "that I send someone to burn down thejail." (13RT 2742-50; 2754-56.) 31 hatred. He said he had made mistakes, he wantedto fix things up and wanted to pay whatever came his way, but that he could not accept that his innocent children would pay. He talked about Cindi's relationship with Chavez andthat his sons told him that they were hut a lot when the man and their mother hugged andkissed. They told him that whattheir mother was doing was not right. Cindi told him she knew he would take care of their children because she was never going to see them again. He said he did "nothing wrong." When Pati accused him oftaking the lives of three innocent personshe said "I did not take it. The way I see it, we all tookit." WhenPati said she knew he wasn't crazy, appellant agreed he was not; she said his attorneyssaid he was, appellant said that was the attorneys and the DA's game;that they agreed, and were "playing with that." He called the legal process a "farce"? (4CT 1099-1116.) Valdivia transcribed a November9, 2005 phonecall between appellant, and his sister and his sons that took place shortly after the guilty verdict. It was played for the jury. (13RT 2752, 2757, 2763; Exh. 142A.) 29 WhenPati insisted no one was "taking it out" against his children he said "Godis going to . . . understand this. You not only are takingit [out] against my children,but also with your own children. Becauseoneofthese days, they are going to find out aboutall of this ... . As I do not want to do it either, nor the community, nor the famous people of California, nor the world's People the community, nor society, the governmentthe judges. Everythingis a farce; all is a farce, hypocrisy." (4CT 1107.) WhenPati said he or his attorneys were saying he was crazy, appellant insisted, "I am not crazy!" and "that is the attorney's and the district attorneys and ofall of us's game"that we agreed to play. (4CT 1110-11.) 32 Appellant said he had been found guilty and they were "just a bunch of racists" and now he would get the death penalty for sure. Hesaid his attorneys were just playing a game so everyone would think they are supposedly doing things like they are supposed to be done. It was a "bunch of shit." (SCT 1118.) Appellant said that his attorneys referred to the recent guilty verdict saying they had found he premeditated andthat the case would now gotothe jury for penalty phase; appellant said it was all a farce. He said "you saw howI told the district attorney, to shut his mouth aboutthe lies that, that, what are they trying to do telling ali their lies and, anyway whattheyare after, they are getting. They're not going to put him in jail if they find outheis telling lies. They're not going to put [Guadalupe or Jose Martinez or Cindi] in jail, because they weretelling lies. Then why, why continue?" (SCT 1120.) He said they promote hatred and already have everything plannedout, they drink the same cup of coffee; they are afraid ofhim because they are cowards, andheis also afraid, but when God whois big and powerfularrives, then we will come to blowsofthe chest. (SCT 1121.) Appellant said the law only protected "the piecesofshit, the cowards." (SCT 1122.) He said that whether he died and the others lived, or vice versa, they wouldbefine for the greatness of God. "The more we fight with him, weare going to be fine." (SCT 1126.) Hetold his sons he loved them;he told Hubert Jr. that it was certain he would get the death penalty because "everythingis all planned out." (5CT 1127.) Hetold his 33 son to serve God who wasbig and taking care ofthem all. "He wantsusto serve him right or wrong or not serve him atall and ifwe are going to do wrong, do wrong completely from side to side." (SCT 1128.) He said he didn't want Hubert or his brothers to get into the games ofthose people, or they would put them in jail.) He said even if his sons pleaded they would still give him the death penalty and he didn't want them to plead. Only God was the ownerofhis life. (5CT 1130-31.) He asked his son Ivan to forgive those persons that wanted something bad for him, to forgive their mother and to forgive him for the harm he did to him. (SCT 1 135.) He said he would rather Ivan didn't go to court because it wasall a circus, and just acting, and he didn't want him to plead forhis life, but just to havefaith in God and they wouldbe fine. (SCT 1135-36.) Appellant told his sister that the public felt safe and that justice was served because he was convicted, but now women to men and men to women could continue to "do tragedies to innocent children becauseat the end the law will protect them, and, and, serves justice." (SCT 1150.) C. Evidence Presented by the Defense in Rebuttal. Dr. Robin Schaeffertestified that his diagnosis of appellant matchedthat ofDr. Weiss: appellant suffered from major depressive disorder with psychotic features. The psychotic features manifested as auditory hallucinations reported by the jail staff a few daysafter the incident, and appellant's delusions. (14RT 2778-79.) Dr. Schaeffer also 34 agreed with Dr. Weiss that appellant's repeated shifts in conversation from his children to "all the children ofthe world," i.e., excessive abstraction, wasan exampleofhis psychotic thought disorder; and that appellant's psychotic tangentiality (repeatedly drifting off topic) was an indicia of independent psychosis. He also agreed with Dr. Weiss that appellant's belief that someone was trying to harm his children was the basis of appellant's psychosis, and that this same "ideation and preoccupation of paranoid thinking existed at the time ofthe crime." (14RT 2781.) Similarly, Dr. Schaeffer agreed with Dr. Weiss's report that appellant suffered from a delusion-based belief that the killings were justified and necessary to protect his children. This delusion was the product of appellant's psychotic mental illness. Dr. Schaeffer disagreed with Dr. Weiss only as to whether appellant could distinguish right from wrongat the time ofthe crime. Dr. Schaeffer believed that appellant was not capable ofmakingthat distinction. (Dr. Weiss opined that appellant realized his behavior was wrongin that it would land him in jail.) Dr. Schaeffer explained that even while appellant had a delusion-basedbeliefthat he was doing theright thing, he also realized that under someoneelse's eyeshis behavior might be considered wrong, which is why he said he had done something bad. Appellant's mental illness prevented him from distinguishing right from wrong under his own delusional system, and was thus insane. (14RT 2782-84.) 35 Dr. Schaeffer disagreed with Dr. French's conclusion that appellant's inability to distinguish right from wrongat the timeofthe offenses was due to him being in a highly aroused state rather than mentalillness (Dr. French believed that a real mentalillness would persist over time). Dr. Schaeffer explainedthatin his clinical experience (as opposed to Dr. French's mostly forensic experience) delusional symptomsofpsychotic disorders do come and go, andthis is supported by published research andscientific studies. Delusions, like fevers, can rise and fall. (14RT 2788-89, 2799.) A thought disorder or psychosis renders one unableto distinguish between the very abstract and the very concrete, which is why psychotics talk in metaphor. Whenappellant talked about his children being destroyed, he believed, in delusional system, that his children "were being quite literally destroyed, in danger ofbeing destroyed.” (14RT 2797.) Dr. Pablo Stewart, referring to Dr. French's testimony that appellant had "character illogical inadequacy," said that he had never heard of such a term in psychiatry. As to Dr. French's testimony that appellant was psychologically weak (see 13RT 2640), Dr. Stewart testified that such "weakness" had nothing to do with appellant's diagnosis or the offenses. Depressionis a biological condition like diabetes or high blood pressure;it is a genetic influence condition involving neurotransmitter imbalance, and it just so happensthat its symptomsare behavioral in nature. (14RT 2826- 29.) 36 Dr. French was wrongin stating that a "real" mental disorder would persist: while major depressive disorder with psychotic features does persist over time, its presentation is not constant, but waxes and wanes(as it did with appellant when he took Guadalupeto the hospital and shetestified that he seemed to "comeback little bit" from acting crazy; the auditory hallucinations reported on December 17 also showed the waxing and waning qualities.) (14RT 2829-33.) Dr. Stewart pointed out that he and Drs. Weiss and Schaefferall considered appellant to be psychotic. He believed that had Dr. French seen appellant over an extended period oftime, his opinion would change. (14RT 2833-34.) The number one symptom ofmajor depressive disorder according to the DSM-IVis tearfulness and brooding obsessive ruminations, which has been constantly present with appellant during interviews with Dr. Stewart and in the courtroom as well. Dr. French ascribed this depressionto the consequences ofthe homicide, but appellant had similar symptomsfor years prior to the homicides: he was disheveled, he couldn’t work, etc. (14RT 2835-36.) Dr. Stewart also questioned Dr. French's comments about a possible “cultural” basis as motive for the homicides, as appellant had known about his wife's affair for months before the shootings according to what his wife told Detective Grogan, and although appellant was angry he wasactually nicer to her after she told him aboutthe affair. (14RT 2839-40.) 37 Dr. Stewart's firm opinion wasthat appellant did not know right from wrong at the time ofthe offenses because of psychotic symptoms from his chronic his mentalillness. (L4RT 2841-42, 2862.) Joaquin Santi Banez from Morelia, Mexico, met appellant when appellant was 11 years old and Banez was the 17-year-old teacher in his town. Banez married appellant's sister. When appellant visited Banez and his wife in Morelia in 1998, he was alone, unshaved, ungroomedanddirty, whereas before he had always been very clean and well-groomed. He walked up and down, was depressed, and wasnoteating or sleeping. He "was absent" and seemedlike a different person from the one he had been before. (14RT 2802-07.) Jail nurse Joan Lenardtestified to put jail records into evidence: they were generated on November 3, 2005 and delivered sealed to the court under subpoena. (4RT 2817, 2882-87.) PENALTY PHASE STATEMENTOF FACTS A. Evidence ofAggravating Factors.”° Patricia Gonzalez was Alicia and Jose Martinez's daughter, and appellant's sister-in-law, Lopez's cousin and Chavez's friend. Chavez moved into Alicia and Jose Martinez's house after getting into an argument 0 At penalty phase, the prosecution relied most heavily on the circumstancesofthe crimeasset out at the guilt phase; appellant had no prior history of crimesor acts ofviolence. 38 with Patricia's brother-in-law. Chavez was good with children and a caring person. (15RT 3021-23, 3031.) Alicia was active in church and great role model. Patricia and her son Israel missed everything about Alicia. It was hard without her. (1SRT 3024-27.) Alicia was known for her "very forgiving nature." (15RT 3034.) Patricia movedinto the family home with her husband and children at the request ofJose and Guadalupe, because Jose was working and Guadalupe couldn't stay alone in the house. (1SRT 3028-29.) Jose Martinez was married to Alicia and worked at the same company as Lopez. After Lopez died, Jose had to change jobs and made less money. (15RT 3036-37.) He had nightmares about what happened and missed his wife every day. He didn't celebrate Christmasatall anymore. (1SRT 3039.) He placed crucifixes in the house to mark the spots where the three died. (1SRT 3032.) Maria Pulido wasthe oldest daughter ofJose and Alicia. Her cousin Carlos wasfriendly and alwayswilling to help. (1SRT 3045-46, 3051-52.) Maria was very close to her mother and they talked every day. Alicia had a special ring set aside for the quinceanera (15-year-old birthday party) ofMaria's daughter and the daughter cried at her party because she missed her grandmother. (15RT 3046-48.) Alicia was friendly with everyone and generous. (15RT 3050.) Alicia's death has affected all of Maria's children. Herfather Jose is depressed. The family used to get 39 together on December 12 becausethat is the day ofthe Lady of Guadalupe, Guadalupe's patron saint. Now they go to church and remember the deaths. (15RT 3065-67.) Guadalupe Martinez testified that December 12 (her birthday) used to be a happy day but since the shootings, she didn't even like going out on that day. (15RT 3066-67.) She had had twosurgeries on her arm. She recalled the pain of seeing her mother killed before her eyes. She had to go to counseling; she didn't like being or sleeping alone. She wanted her father to sell the house but they asked Patricia and her family to move in so she didn't have to sleep alone. At school, everyonestared at her and she had to go to private school. She was sad that her mother would not be present for her wedding(set for January 7) and when her baby was born. (15RT 3070-75.) Lopez was a happy and helpful person. (15RT 3070.) B. Evidence Presented in Mitigation. Joaquin Santi Banez, appellant's brother-in-law, met appellantin his hometown in Mexico when appellant was eleven years old. As a boy appellant was optimistic and playful and curious. (1SRT 3083-85.) Afier appellant went to the United States, he sent them money. Whenhevisited, he was playful with Banez' children and gave them toys. He had special gift with children. The man whokilled the victims was not the man Banez knew. (15RT 3086-89.) 40 Jorge Mendoza,appellant's older brother, lives in Mexico and works as a city planner. (15RT 3090-91.) Growing up the Mendoza brothers were poor and didn't have a lot to eat but appellant was happy and always gave to others. (1SRT 3093-94.) The boys worked with their father on someoneelse's land, but they earnedlittle and hadlittle food. (15RT 3095-96.) Appellant was very good to his mother, his brothers and his children. (1SRT 3098-3100 ["I would never have wantedto bein this situation. I can't go any longer."].) Elva Mendoza Novoa,appellant's oldersister, is an elementary school teacher in her hometown in Mexico. As the oldest daughter, she was like a mother andsister to appellant. As a child appellant helped her take care ofthe younger children. They all workedin the fields and were poor but happy. Appellant never complained and alwayssaid they had to struggle to help their parents to progress. He was charitable and supportive. (15RT 3152-57 ["that's why I can't believe this."].) Throughout hislife, appellant was good to everyone, with children and the disabled. (15RT 3160-61.) Elva remained close to the Martinez family in Mexico and asked for their forgiveness. (1SRT 3154, 3161.) Rocio Mendoza is appellant's youngersister. (1SRT 3163.) Appellant helped her cometo the United States; they workedin thefields. (15RT 3164-66.) Appellant helped her and counseled her and provided her emotional support when she had problems. (15RT 3169.) She knew 41 appellant was sick and distrusting of everyone before thekillings, but the damagehecreated wasnot the way he wasall ofhis life. (ISRT 3172.) Blanca Santi Banezis appellant's youngersister. (ISRT 3174.) Appellant was an excellent brother. He went to the United States to help out his family who lived in a one-room house where they cooked over a fire, had no electricity, and used an outdoor toilet. Appellant sent money hometo his mother. (1SRT 3177-80.) Appellant last visited her and her family in Mexico in 1998. He brought toys and clothes for her children. She noticed that he was very mistrusting and wouldn't accept any ofher meals. She knew something was wrong; appellant was a different person. Whenheleft he did so around 3:00 or 4:00 a.m. in secret and without explanation. He was pale and hadn't eaten. (1SRT 3183-85.) Appellant had always been a wonderful person; she asked the Martinez family to forgive him. (15RT 3186.) Griselda Mendoza Novoa,appellant's oldersister, testified that appellant was a playful and charitable boy. As a young man, he always walked away from a fight. He was interested in education and wanted to go forward. He studied for a while at the seminary. (1SRT 3189-93.) When she last saw appellant on his 1998 visit to Mexico, he was no longer the little brother she had known. Hepaced,did not eat, hit his head, and looked like he was running from someone. She was troubled and hurt to see him;she lost a great brother in 1998. (1SRT 3192-96.) She and her 42 children and nieces and nephewsvisited appellant in jail; they prayed and sang songs. Shetestified that appellant was no longer "Hubercito" but was very ill; she asked the Martinez family for forgiveness. (ISRT 3197-98.) Elsa Mireya Vivancois appellant's younger sister. She testified that appellant counseled and provided her with emotional support. for example, when her infant baby died after 17 days. Her daughter Liliana also had a special relationship with appellant that has continued; although appellant is incarcerated the daughter talks and sings on the phone. (1SRT 3203-08.) Appellant sent money from the United States for her to go to school and then helped her cometo the United States. He taught her to drive, to get amnesty and then to becomea citizen. It was all thanks to appellant and to this country. (1SRT 3209-16.) Appellant was ill before this tragedy and was not the same brother anymore. He separated himself from everyone. Shelost a great brother. (ISRT 3215-17.) Huber Mendoza, Jr., appellant's oldest son, was 16 years old at the time hetestified. (1SRT 3105-06.) He remembered when hewas in first grade, and didn't like going to school. appellant would go with him and stay with him all day until he got used to it. Appellant helped him and other children with English. Appellant did the same with his little brother Angel. Appellant coached the boys in soccer and taught them teamwork. HuberJr. tried to help his father keep track ofhis favorite soccer team when theytalk on the phone. He andhis dad and uncles went fishing and camping. His 43 father loves animals. (15RT 3105-13.) When HuberJr. got to junior high schoolhis father advocated for him to go to a different school when he saw that there were lots of gang membersin his school. Hestill talks to his father on the phone. His father encourages them to do well in school and to be good. HuberJr. wrotea letter trying to advocate for his father whom he wants to remain with them and share things with them. (15RT 3114-17.) Ivan Mendoza was 14years old at he timeoftrial. His dad coached him in soccer; his favorite thing was to play soccer in the park with his dad. He taughtIvan to be a team player, to be nice to people and respect them,to work hard in schooland help people who need it. (16RT 3316-20.) Ivan wantedto testify although his father told him many times not to do it unless he wanted to. He wrote letter to the prosecutor talking about how muchhe loved and missed his dad, and how he wanted and needed him to be in his life. (16RT 3319-23.) He also missed his grandma Alicia. (L6RT 3324.) Dr. Rodney Erwin,a psychiatrist, interviewed appellant's sons for several hours each, and also talked to their mother Cindi and to appellant. (15RT 3118-20.) Each ofthe boys was very attached to appellant who was the primary child caregiver after Angel was born. He got them ready for school, was involved in their school activities, coached soccer, fixed their meals and was their primary emotional attachment. He had a sincere devotion for and love ofhis children. Even when he was depressed and 44 moving into delusional paranoia, appellant was there to care for his sons and take them to school. (15RT 3121-22.) Eachofthe three boysis an interesting child whohasbeen able to overcomehis difficulties and become a solid young man at school and socially and in the family: this reflects on appellant's love and commitment to them andhis ability as a parent. (1SRT 3124.) HuberJr. has stepped into his father's role helping his younger brothers with schoolwork: he incorporated the parental values displayed by appellant. Angel is creative and has a sense ofhumorthat came from the way he and father laughed and joked together. (ISRT 3125.) As primary caregiver appellantinstilled in his sons real strengths and charactertraits; they have taken on mature rules in their family. It is absolutely important for the boys to maintain their relationship with their father whom they continue to love. (15RT 3129.) At the sametimethey are very protective oftheir mother. (1SRT 3137.) Their psychological need for their father will continue throughouttheir lives; even more important because oftheir attachment to him, and because of their estrangement due to this enormous crime. (15RT 3143.) HuberJr. wasinvolved in somefighting at school. (1SRT 3138.) Appellant told HuberJr. that fighting was not the answerandthat hehad to stop; based on this advice HuberJr. quit fighting. (1SRT 3140, 3145-46.) Vivian Sweatman works for the sheriffs departmentin court security. She was present for a 2002 visit between appellant andhis 45 children. Appellant was loving andtried to calm down thechildren, the oldest ofwhom especially was very emotional. Appellant apologized to HuberJr. and told him he now hadto be the man in the family. Appellant asked his sons about schoolandtheir lives and tried to make sure they were okay. (ISRT 3199-3201.) Daniel Vazquez, former warden of San Quentin Prison and correctional consultant for both prosecution and defense,testified that an LWOPsentence meantthat the prisoner would automatically be held in the maximum level of security. (16RT 3255-65.) He had reviewed police reports, interviewed appellant for three hours, and assessed him. In county jail, appellant had been "a model inmate" for more than four years in custody awaitingtrial in this case. Based on Mr. Vazquez’ extensive experience classifying thousands of inmates, he did not believe appellant would pose any dangerto staff or other inmates. He had no gang connections, was not criminally sophisticated, had no previousarrests, and had a spotless record in county jail. (16RT 3267-69.) Mr. Vazquez had reviewed transcripts ofthe November10, 2005 phonecall appellant made to his sister in which he rambled and "venteda little bit" but nothing in that conversation changedhis opinion that appellant posed no risk of future dangerousness. (16RT 3269-73.) The fact that appellant said that if he jumped up in courtroom he would be shot did not change Vasquez's opinion: "talking and doing are two different things." (16RT 3278-79.) 46 The fact that appellant turned himself in is "very different, very unusual behavior" for offenders. (16RT 3283.) Mr. Vazquez pointed out that appellant had been in court for months unshackled, which indicates he has no real potential for any further violence. (16RT 3290-91.) Moreover, the fear of losing visitation privileges with his beloved children lessened any chance that appellant would be violent. (16RT 3292-93.) Dr. Pablo Stewart testified that he respected the jury sanity verdict but his opinion remained: but for appellant's mental illness with delusions, in which he wastrying to protect his children from evil, these crimes would not have occurred. Appellant had been suicidal and severely depressed since the age of 24.°' His Mexican relatives described him as preoccupied and on guard. (16RT 3295-3300.) / / 3 Appellant's statement in a phone conversation abouta "bullet to the brain" the night of the crime spoke to his suicidality and underlying mental disorder, i.e., wanting the police to shoot him. (16RT 3295.) 47 ARGUMENT-COMPETENCYTRIAL I. THE EVIDENCE PRESENTED TO THE JURY WAS INSUFFICIENT TO SUSTAIN THE VERDICT OF COMPETENCY, IN VIOLATION OF FEDERAL DUE PROCESS, THUS REQUIRING REVERSAL OF APPELLANT'S SUBSEQUENT CONVICTIONS A. Introduction and Summary ofArgument. On November12, 2003, defense counsel declared a doubt as to appellant's competency and requested the proceedings be suspended under Penal Code section 1368. (1CT 118-19.) After two experts found appellant incompetent and one found him competent, the matter was set fortrial. Jury trial on the question of competence only began on December8, 2004, and on December15, 2004, the jury found appellant competent to stand trial. (ICT 195, 242.) On February 24, 2005,the trial court denied the defense motion for judgment notwithstanding the verdict, stating that Dr. Cavanaugh's opinion as to appellant's competency was supported by taped phonecalls between appellant and his family, which showedthat appellant could carry on a rational discussion and pursuerational objectives he believed appropriate. (SRT 760.) However, the constitutionally-based competency standard requires more than the ability to carry on a rational discussion with family members. Moreover, Dr. Cavanaugh gave no opinion as to appellant's present competency,andtestified only that appellant could think rationally about issues relating to the case and could cooperate. (4RT 494-96.) He gave no 48 opinion as to appellant's ability to makethecritical decisions essential to a fair trial, such as whetherto testify, and whether and how to put on a defense. The test for competency is "well settled." (Cooper v. Oklahoma (1996) 517 U.S. 348, 354.) A defendant must (1) be rational, (2) have a rational as well as factual understanding ofthe proceedings against him, (3) have sufficient ability to consult with his lawyer with a reasonable degree of rational understanding, and (4) be able to assist in his defense. (Ibid., Dusky v. United States (1960) 362 U.S. 402, 402.) Cooper quoted Justice Kennedy's concurring opinion in Rigginsv. Nevada (1992) 504 U.S. 127, 139-40 as to the significance ofthe right, emphasizing that competency is "rudimentary, for upon it depends the main part ofthose rights deemed essentialto a fair trial, including the right to effective assistance of counsel, the rights to summon,to confront, and to cross-examine witnesses, and the right to testify on one's own behalf or to remain silent without penalty for doing so." (517 U.S.at 354.) 32 A competency hearing, although arising in the context of a criminal trial, is governed generally by rules applicable to civil proceedings. The defendant is presumed competent unless the contrary is proven by a preponderanceofthe evidence. (People v. Lawley (2002) 27 Cal.4th 102, 131; Medina v. California (1992) 505 U.S. 437, 449 [a state may presume competency and require the defendant to prove his incompetence by a preponderance ofthe evidence].) 49 Appellant contendsthat the strong evidentiary showing ofhis present incompetency, which was unrefuted by the prosecution, mandates a reversal of his convictions. It is a fundamental canon ofcriminal law, and a foundation ofstate and federal due process, that "[a] person cannotbetried or adjudged to punishment while such person is mentally incompetent.” (People v. Samuel (1981) 29 Cal.3d 489, 494,citing Pen. Code, § 1367.) The United States Supreme Court has "repeatedly and consistently recognized that the criminaltrial of an incompetent defendantviolates due process." (Cooper v. Oklahoma, 517 U.S.at 354 [internal quotation marks omitted]; see also Indiana v. Edwards (2008) 554 U.S. 164, 169-70[the competency requirementis rooted in the federal constitution].) Indiana v, Edwards, citing to Godinez v. Moran (1993) 509 U.S. 389 and Drope,stressed that the standard "focuses directly upon a defendant's ‘presentability to consult with his lawyer," and his ability to "assist counsel in preparing his defense.” (554 U.S. at 169-70.) Godinez held that competenceto stand trial and competenceto enter a guilty plea are measured by the same standard: there is no "higher" standard of competencethat applies to a defendant entering a guilty plea than to a defendant whostandstrial. (509 U.S. at 399.) Both types of defendants have to decide whetherto plead guilty or go to trial, and to take or waive the right to testify and to call or cross-examine witnesses. The defendant 50 whodecidesto standtrial faces "still other strategic choices: in consultation with his attorney, he maybe be called upon to decide, among other things, whether (and how) to put on the defense and whetherto raise one or more affirmative defenses." (Id. at 398; see also Cooper, 517 U.S. at 354 [accord].) Whenthetrial court denied appellant's motion for judgment notwithstanding the verdict, it made no finding that the evidence was sufficient to show that appellant was able to consult with and assist counsel in his defense with a reasonable degree of rational understanding,as is required underthe federal constitution. Appellant contends that, as shown below, there was no such evidence. B. Summary ofFacts Adduced by Appellant at the Competency Trial. 1. Expert attorney testimony that competency required the criminal defendant to be able to make important decisions such as whetherto testify, and to assist in penalty phase preparation. Attorney Robert Wildman, an experienced criminal defense attorney who hadtried three capital cases, testified that unless a client had a factual and rational understanding ofthe charges and procedures, he was unable to assist counsel in preparing the defense and making the necessary high level executive decisions. To be competent, the client must be able (1) to decide whetherornotto testify, (2) to assist in the cross-examination, 51 (3) to communicatein a rational manner with counsel, and (4) to cooperate in providing social history at the penalty phase. 3RT 308-17.) 2. Court-appointed expert Dr. Zimmerman testified that appellant wasseriously depressed and incompetent to stand trial at the time of his November 2003 interview. Dr. Gary Zimmermanwas appointed by the court to assess appellant's competency and interviewed him at the jail on November29, 2003.°° At the beginning ofthe interview, appellant was able to answer questions precisely, but then tended to wanderand often concentrated "on the injustice he felt was being done to him" —i.e., separating him from his family. Appellant thought he should be released to be with his children. He wasdepressed, helpless, and hopeless and said it would probably be a good idea ifhe werekilled. Appellant showed a "deep indifference to the proceedings against him" and wasonly able to "hold it together for a short period of time." (3RT 338-41.) In Dr. Zimmerman's opinion, at the time of this interview appellant was incompetentto stand trial. (3RT 353, 357.) Appellant was significantly depressed and "seriously impaired" mentally. Because ofhis 33 Dr. Zimmerman's evaluation included the standardclinical interview, inquiry into appellant's past contacts with the law, checking symptomsofmentalillness, and observation ofthe client's responses to determine his understanding ofthe charges andhis ability to assist in the defense. (3RT 332-37.) 52 serious depression, he did not care what happened to him and he was unableto rationally evaluate and thusassist in his defense. (3RT 338-43.) 3. After hours of interviews over the course of more than a year, and in reliance on a reliable competence-related structured interview format, psychiatrist Dr. Stewart testified that at the time ofthe competencytrial, appellant suffered from a deteriorating mental illness and was incompetent to standtrial. Dr. Pablo Stewart, chiefpsychiatrist at the Haight Ashbury Clinic, had done hundreds of competency evaluations, both formal and informal. (3RT 366-70.) He reviewed appellant's mail, his medical and mental health records, and police reports. He interviewed appellant twice before submitting his report on appellant's competency on November 2, 2003. Dr. Stewart also interviewed appellant on February 12, April 27, July 20, and November 12, 2004. Dr. Stewart's last interview with appellant wasless than a month before his testimony. (3RT 371-72.) After hours of evaluations and interviews (including an interview with appellant's wife — who had unsuccessfully tried many times in the past to get appellant into treatment), Dr. Stewart wasableto state that appellant suffered from a long-standing mood disorder that caused him to have psychotic symptoms,i.e., his reality was altered by reason ofmental disease and defect. Dr. Stewart testified that appellant's condition had endured over time and his psychotic symptoms had become worse. (3RT 373-74; 435.) In the last interview, appellant was unable to answerspecific 53 question about the charges he faced. Even after Dr. Stewart told him the charges and asked if he understood, appellant said, "Other people killed people, so who is holding them responsible." Appellant said he couldn't answer the question "because he was dead." (3RT 375.) These answers were consistent with the mental disease/defect Dr. Stewart notedin his original report and led Dr. Stewart to concludethatat the present time appellant wastotally disconnected from an understanding ofthe charges against him. (3RT 376.) Dr. Stewart performed the MacArthur Competency Assessment Tool -- Criminal Adjudication. In Novemberof2003, appellant tested "significantly impaired" onall three areas tested (ability to realistically consider defense, ability to plan legal strategies, and ability to perceive likely outcome). The testing showedthat his impairment did not stem from any informed decision on his part. (3RT 379, 439.) Dr. Stewart testified that appellant went through drastic mood fluctuations and was unable to give focused answers. His thinking quickly deteriorated into delusional paranoid thinking with lot ofreligious content.** Dr. Stewart considered appellant unableto participate in his ” Dr. Stewart testified that appellant's religious preoccupation and "over-elaborated self-referential relationship with God" wasnot his only symptom ofmentalillness: he had other non-religious based delusions, including paranoia about the government, the process and fairness of the legal system, and looseness of associations. Appellant's interest in soccer scores (talkingabout scores with his sons on the jail tape recordings) was 54 defense, which was due to his severe mood disorder with psychotic features. (3RT 381-85.) Dr. Stewart's opinion was that appellant had a mentalillness that since the 1990's had been getting progressively worse. By 1995 he was unable to keep a job. He had sleeping and eating problems, was suicidal and unable to care for his own hygiene. Due to appellant's depression with psychotic features, appellant was unable (1) to help in choosing jurors, (2) to evaluate testimony of witnesses, (3) to provide insight to his attorneys into what led up to and surrounded the events in question, (4)to assist in gathering and presenting mitigation evidence, (5) to evaluate whetheror not to testify, and/or (6) to evaluate possible plea offers. (3RT 395-97.) Appellant had on two occasionsbeen prescribed anti-depressants by jail mental health staff: first a hefty dose ofProzac (which appellant stopped taking because he thought his improvement was due to reasons other than the medication) and later Remeronfor a short period oftime. Because mental illness prevents a patient from appreciating his illness, truly depressed patients commonly stop taking medications and deny suffering from any mental illness, especially when the mentalillness developsinto psychotic symptoms. (3RT 412-14.) Dr. Stewart testified that appellant's not inconsistent with mental illness. Dr. Stewart madethe pointthat the ability to engage in daily chit-chat did not negate mentalillness by saying that even psychotics know when food is bad. (3RT 386-89.) 55 depression had descended into psychosis rendering him unable to understand the nature of the charges against him and to assist his attorneys in his defense. (3RT 416.) 4. Dr. Schaeffer, who had interviewed appellant only four days before testifying, relied on the transcript of that interview to show that appellant had a consistent psychotic thought disorder and was incompetentto stand trial. Dr. Robin Schaeffer, whoin his private practice routinely conducted competency andsanity evaluations for the court, assessed appellant for competency on December 4, 2004 (four days prior to this testimony). (3RT 448-51.) In the interview, appellant showed a consistent psychotic thought disorder characterized by shifting levels of abstraction, including generalizing when specificity was required; loose associations (rambling); paranoid distrust; delusional grandiosity; suicidal impulses; and a senseofthetrial as unreal and not important.*” Dr. Schaeffer's opinion wasthat appellant was unableto testify in a rational manner and was unable to rationally assist his attorneys; and was thus incompetentto standtrial. 35 Appellant repeatedly talked about "not just me, everyone" which showeda loosening and blurring of differentiation, indicative of a psychotic thought disorder. He also blurred the difference in the roles ofjudge, jury and attorneys, problematic in terms ofcompetency. (4RT 602, 609.) Appellant failed to take advantage ofmany opportunities provided by Dr. Schaeffer to come back from rambling content. In response to specific questions appellant frequently rambled aboutreligious matters that impairedhis ability to give rational response. (4RT 603-04.) 56 (3RT 453-54; Exh. B [transcript of Schaeffer interview played for jury at 3RT 457]; see Clerk's Supplemental Transcript’ at 106-117.) Dr. Schaeffer pointed out the portions of appellant's taped interview that he relied on to reach his conclusions. (4RT 599.) Although Dr. Schaeffer gave appellant repeated opportunities to give coherent, rational, discrete and specific answers to questions, appellant repeatedly shifted to abstractions. These abstract thoughts, together with appellant's sense of unreality, impaired his ability (1) to decide whetherto testify, (2) to waive a jury trial, (3) to enter into plea bargaining,(4) to assist in cross examination, (5) to assist in broad outlines of a defense, and/or (6) to assist with preparation of mitigation materials. (4RT 600, 608, 612-16.) Appellant repeatedly demonstrated that he was not able to engage with his attorneys and manifested a tremendous ambivalence with respect to the needto trust and work with his attorneys. (4RT 605-06.) He repeatedly referred to his paranoid distrust ofpeople even though he struggled with this because Godtold him to trust. (4RT 600 [hedid not “trust people at all"].) Appellant said he had "noothertrial [] than the one from God." (4RT 606.) This sense of unreality was a symptom of appellant's psychotic disorder. Appellant's inability to cooperate with counsel wasnot dueto his religious beliefs but rather due to the wayhis 36 There are two Supplemental Clerk's Transcripts, one labeled Clerk's Supplemental Transcript [hereafter CST], VolumeI of I; the other labeled Supplemental Clerk's Transcript on Appeal [hereafter SCT] VolumeI of I. 57 disordered mindused those religious beliefs. That is, appellant's mental illness (and nothis religious beliefs) prevented him from being able to work with his attorneysalthough appellant expressed his inability in religious terms.°” It was notthe religious content of appellant's statement per se that made them irrational, but the fact that his physiologically-based thought disorder rendered him unable to give specific answersor any answers other than his religious expressions. (4RT 606-07, 609, 633-34.) Dr. Schaeffer concluded that appellant's inability to "stay [on] track mentally" rendered him unable to consult with or assist defense counsel. (4RT 634.) Appellant's sense ofunreality also resulted in a diminishedsense of agency,i.e., his inability to do anything, manifested by his repeated statements that "everything is going to be fine." (4RT 609.) Appellant's thought disorder prevented him from experiencing the actual reality of the trial and legal process. (4RT 633.) Dr. Schaeffer testified that although appellant wasoriented as to time and place, and could make some answers and give someassistance,his ability did not rise to the level required for competency because ofthe ? Appellant did not expressly refuse to cooperate with counsel. In fact Godtold him he had to. But in Dr. Schaeffer's opinion, appellant's state of mind, as demonstrated in this interview, rendered him unableto rationally assist counsel. (4RT 611.) For example, although appellant said he did not commit a murder (not uncommonfor a criminal defendant) he immediately launchedinto a long abstract rambling to concludethatit was nota realtrial and there was no difference between himself and any other person. (4RT 611.) 58 irrational and limited nature of his responses. (4RT 616, 619.) His brain repeatedly threw him into abstractions and ramblings. (4RT 632.) A medical condition (imbalance of neurotransmitters) underlay appellant's disorder. (4RT 635.) His disorder could not be overcomebyan act of will. (4RT 642.) | C. Evidence Presented by the Prosecution. Dr. Gary Cavanaugh was retained by the prosecution to evaluate appellant's competency. Dr. Cavanaugh's evaluation of appellant consisted ofnothing more than a 1.5 hour taped interview with appellant on February 12, 2004, 10 monthsprior to his testimony. (4RT 491-93; see Exh. 7, CST at 56-84.) Dr. Cavanaugh saw no substantial evidence of a major mental illness (only an apparent personality disorder) or delusional thinking. Dr. Cavanaugh testified that appellant showed he could think rationally about issues relating to the case although there were things he did not wantto talk about. Dr. Cavanaugh's opinion was that appellant was competentto stand trial; he found no evidence appellant was unable to understand or cooperate. (4RT 494-96.) Dr. Cavanaugh did not administer anytests commonly used for assessing competency. (4RT 504-04.) Hefelt he had enough information to render an opinion without such testing. (4RT 506.) Dr. Cavanaugh stated that he had revieweda letter from the prosecutor regarding prior evaluations, including Dr. Stewart's report and jail records showing that appellant had been diagnosed with andtreated for 59 depression. Nonetheless, Dr. Cavanaugh concludedthat at the time of his interview (10 months previous) appellant was in remission and showed no signs of depression. (4RT 497-99, 561-62.) Dr. Cavanaugh had no opinion about appellant's current competency.”8 (ART 527.) Psychologist Dr. Philip S. Trompetter observed appellant at the police station around 4:30 a.m.the nightofthe triple homicides, December 12, 2001. At approximately 9:00 a.m.that day, he observed appellant (from another room) whenthedetectives interviewed appellant. (4RT 580- 81.) Dr. Trompetter saw no sign ofpsychotic behavioror evidence of disorganized thinking or hallucinations. Appellant made many religious references but none were delusional; he made some paranoid comments but they were not psychotic. He appeared to understand the questions posed to 38 Dr. Stewart reviewed Dr. Cavanaugh's taped interview of appellant (Exh. 7 at Clerk's Supplemental Transcript 56-84) upon which Dr. Cavanaugh basedhis evaluation. Dr. Stewart testified that Dr. Cavanaugh's questions implied he hadn't done preliminary work, such as familiarizing himselfwith the facts of the case: e.g., Dr. Cavanaugh asked appellant how he and his wife were getting along and ifthere were "any problems"in the marriage (a question that presumably would not be asked by someone who knew the basic facts of a case in which the defendant was charged with killing his wife's mother). (3RT 399-400.) Dr. Cavanaugh saw appellant only once on February 12, 2004. Dr Stewart testified that more than one interview wasnecessary to evaluate competency. (3RT 401-05.) Moreover, Dr. Stewart was ofthe opinion that appellant's condition had worsened since the March 2004 date ofDr. Cavanaugh's report for the prosecution. (3RT 405.) 60 him.*? (4RT 583-86.) Dr. Trompetter had not seen or observed appellant since 2001 and had no opinion as to his competency. (4RT 587.) Court interpreter Diana Morenolistened to and translated tape recordings of some 10 tol2 phone calls made between appellant and his wife Cindi, appellant and his sister-in-law Pati, and appellant and his sons, all made from the jail in 2004. (ART 465-66; see Exh. 2 at CST at 4-32.) The tapes were played for the jury who followed along with transcripts translated into English. (See e.g. 4RT 472, 482.) In a June 1, 2004 phonecall with his wife (Exh. 4, CST at 27-33), appellant asked that she leave his children alone and that she take them to his mother. He said "I do not want them around that son ofa bitch [referring to Jesus, Cindi's new boyfriend]." (4RT 474-75.) Appellant asked Cindito take their children to his mother and to put them in a safe place. He said he prayed to keep his sons separate from her and Jesus, the son of a bitch who hadthe children "under threat" and "tormented with fright." (CST at 27-30.) He asked Cindi why she hurt the children so much. Appellant agreed notto call his sons anymore on the cell phone that Jesus paid for. (Id. at 33.) 39 This interview was taped and transcribed. (See 5CT 1162-1340.) The transcript shows,inter alia, that appellant was crying andtalking unintelligibly to himself, and that in the phonecall to his motherhesaid "they" were harming his children and wanted to eat them. (SCT 1175-79, 1209-10.) 61 In a phonecall with his sister-in-law Pati (Exh. 4, CST 34-50), appellant complained that "many bad things" were being doneto his children; he said nothing was going to be fixed with hatred. He said he had made mistakes and he wanted tofix things up and pay whatever camehis way, but that he could notacceptthat his innocent children would pay. (CST at 35.) He complained that Cindi used tricks to keep his sons from talking to him. (Id. at 37.) He talked about Cindi's relationship with Chavez andsaid that his sons told him that they were hurt a lot when the man and their mother hugged and kissed. They told him that what their mother was doing was not right. Appellant said that Cindi told him — in front ofthe children -- to take care ofthem because she was never going to see them again. Appellantsaid that he did "nothing wrong.” (Id. at 40-41.) Hesaid he sought God but couldn't find him and that he wanted Godto take him, to give him death, then everyone would be in peace. (Id. at 37.) WhenPati accused him oftaking the lives of three innocent persons he said "I did not take it. The way I see it, we all took it." He called the legal process a "farce."*° (Id. at 42.) Appellant insisted to Pati that he was 40 WhenPati insisted no one was "taking it out" against his children appellant said "Godis going to . . . understand this. You not only are taking it [out] against my children, but also with your own children. Because one ofthese days, they are going to find out aboutall of this... . As I do not want to do it either, nor the community, nor the famous people of California, nor the world's People the community, nor society, the governmentthe judges. Everythingis a farce;all is a farce, hypocrisy." (CST at 42.) When Pati said he or his attorneys were saying he wascrazy, 62 not crazy. Pati said his attorneys were saying that. Appellant said "that is the attorney's and the district attorneys and ofall of us's game . . . because we agreed. Weare playing with that.” (Id. at 45-46.) In phone conversations with his sons (Exh. 2, CST 4-32), appellant said he loved and missed them,asked if they ate, and said it was better to love people. (Id. at 4-5, 9-12, 14.) He told one son that he hadtalked to Cindi's new boyfriend Jesus, who said he was supporting the three boys; appellant said not to trust Jesus and warned his son "not to be with those people" who weretrying "to harm" him and trying to separate him (his son) from appellant. He said not to trust Jesus. (Id. at 14-16.) Whentalking to his son Ivan appellant asked him to excuse him "for all the bad times that I made you go through"and said he loved him very much. (4RT 480-81; CST at 24.) He told him to be God's child andto talk to God. Hesaid he didn't want Cindi to intervene in his relationship with his sons but that he had nothing against Cindi and that Ivan should not feel anger against his mother or her family. He told him to give his mother a kiss, to tell he her loved her. He told his Ivan he loved him very much. (CSTat 11, 22.) Deputy Calvin Watson,Jr. had brief conversations with appellant whenpassing by appellant's cell. His last contact with appellant was seven appellant insisted, "I am not crazy!" and "that is the attorney's and the district attorneys andofall of us's game" that we agreed to play. (Id. at 45.) 63 monthsto a year prior to his testimonyat the competencytrial. At that time, appellant was able to communicate enough to ask for a cell change, or to respondto simple questions by saying "fine." Watson's longest conversation with appellant was about two minutes. (4RT 486-89.) Debbie Mandujamo,a psychiatric nurse working in the county jail, testified that her last professional contact with appellant was September 26, 2003 (over a year before her testimony), at which time appellant was not taking medications. She had norecollection of difficulty communicating with appellant. (4RT 648-53.) D. The Defense Presented Overwhelming and Substantial Evidence ofAppellant's Incompetency That Was Neither Undermined Nor Contradicted by the Prosecution's Evidence. On an appellate claim of insufficient evidence to support a verdict of competency, the reviewing court determines whether substantial evidence, viewedin the light most favorable to the verdict, supports the finding. The verdict is “not absolute" and "suspicion" is not substantial evidence,i.e., evidence that is reasonable, credible and of solid value. (Samuel, 29 Cal.3d at 493.) Where the evidence at the competency trial overwhelmingly demonstrates incompetence and is devoid of substantial evidence to the contrary, the effect is the sameas if the defendant had been denied his constitutional right to a proper hearing on competency, andtheerroris reversible per se, requiring that the subsequent convictionsalso be set 64 aside. (Id. at 493-94.) As explained inv.Oklahoma, 517 U.S.at 364, the consequences of an erroneous determination of competence are dire for the defendant and threaten "the basic fairness ofthetrial itself." Because such a defendant lacks the ability to communicate effectively with counsel, he may be unable to exercise the other rights deemed essential to a fair trial. (Ibid.) The evidencein this case was insufficient to support the competency verdict. First, the trial court failed to consider the federal requirements of competency. (Section 1, below.) Secondly, appellant presented a wealth of expert testimony as to his present inability to assist in his defense which was unrefuted by the prosecution's presentation. (Section 2, below). Three experts, including the court-appointed expert, testified that appellant was seriously impaired, significantly depressed, and unable to rationally evaluate or assist in his defense. Two ofthese experts had interviewed and assessed appellant within the previous month, and one within the last week: Dr. Pablo Stewart testified that appellant's condition was deteriorating and that it had worsenedsince the time ofDr. Cavanaugh's report for the prosecution. Specifically, the defense experts testified that appellant was unable (1) to decide whetherto waive a jury trial; (2) to help in choosing jurors; (3) to evaluate testimony ofwitnesses andassist in cross- examination; (4) to provide insight to his attorneys into whatled up to and surroundedthe events in question andassistin outlining a defense; (5) to 65 assist in gathering and presenting mitigation evidence; (6) to evaluate whether ornot to testify; and/or (7) to evaluate possible plea offers. 3RT 395-97; 4RT 600, 608, 612-16.) Onthe other hand, the prosecution's experts did not testify as to appellant's present competency.’ Nordid any ofthe evidence presented by the prosecution refute or even address thecritical point of competency as defined by the United States Supreme Court, i.e., that competency requires the ability to decide whetherto plead guilty orgototrial, to take or waive the right to testify and to call or cross-examine witnesses,to assist counsel in whether (and how) to put on the defense and whetherto raise one or more affirmative defenses. (Godinez, 509 U.S. at 398; see also Cooper, 517 U.S.at 354 [accord].) 1, Thetrial court denied appellant's motion using the wrong standard andfailed to assess the federal constitutional requirements for competency. Thetrial court denied appellant's motion forjudgment notwithstanding the verdict on the grounds that "evidence from Dr. Cavanaugh's opinion" was supported by "evidence from the phonecalls and other evidence indicating that [appellant] had [the] capacity to carry on rational discussions, did not appear to be so depressed that he was unable to “ Dr. Trompetter had no opinionas to appellant's competency. Dr. Cavanaugh had no opinionasto appellant's current competency, although he believed that appellant was competentto stand trial 10 monthsearlier. 66 rationally think or rationally pursue objectives which he believed were appropriate." (SRT 760.) While the taped phonecalls and testimony from jail staff showed that appellant was able (at least months before) to converse at a basic level about daily matters, they also showed appellant's inability to engage in reasonable rational discussion about his case and to assist in his defense, as testified to by the defense experts. Thetrial court found only that the prosecution's evidence demonstrated appellant's capacity to carry on "rational discussions and to rationally pursue objectives he believed appropriate." Competency to stand trial requires more than the ability to discuss and pursue someobjectives in a rational manner. As repeatedly emphasized by the United States Supreme Court, competency requires a present ability to make essential decisions critical to a fair trial, including whetherto plead guilty orgo totrial, to take or waivethe rightto testify and to call or cross-examine witnesses, and to assist counsel in whether (and how)to put on the defense and whetherto raise one or more affirmative defenses. (Godinez, 509 U.S. at 398; see also Cooper, 517 U.S. at 354 [accord].) Thetrial court erred byfailing to apply the federal constitutional standard in assessing the sufficiency of the evidence of appellant's competence. As shown below, Dr. Cavanaugh's opinion that appellant was competent was shown — through Dr. Cavanaugh's owntrial testimony and 67 his taped interview with appellant -- to be based on an inadequate foundation. Furthermore Dr. Cavanaugh's testimony was so compromised by his own admitted failure to conduct follow-up questions with appellant or othersthat it rendered his opinion insubstantial and of less than solid value. 2. The prosecution failed utterly to refute the impressive array of evidence presented by the defense that appellant was not competent to stand trial under the federal constitutional requirements. Appellant proved by a preponderance ofthe evidence that he was unable to consult with counsel with a reasonable degree ofrational understanding, and toassist in his defense, because ofhis neurologically based mental disorder. Nothing in the prosecution's case addressed appellant's inability to rationally assist counsel. Therefore, the jury's verdict finding him competent was contrary to the evidence and should have been set aside. The federal constitution requires that a defendant cannotstandtrial unless he is able to communicate with his attorneys and assist in making critical decisions essential to a fair trial, including deciding whetherto testify and assisting in cross-examination. In Samuel, 28 Cal.3d at 498, this Court found the evidence insufficient to support the jury's verdict of competence where the defense presented an “impressive array" of evidence demonstrating present 68 incompetence and the prosecution offered no expert testimony and only two lay witnesses, neither ofwhom contradicted the defense testimony. Appellant contendsthat a careful analysis of the prosecution's evidence showsthat the same result must be reached here. (a) Dr. Cavanaugh's opinion that appellant was competent wasnot only stale, it was compromised by faulty techniques and was without adequate foundation as shown by the transcript of Dr. Cavanaugh's interview with appellant. Dr. Cavanaugh testified to his opinion that 10 months earlier appellant was competentto standtrial, but the prosecution presented no evidence contradicting Dr. Stewart's testimony that appellant's condition wasdeteriorating and that a month beforetrial he had been unable to answer questions about the charges he faced. Moreover, cross-examination ofDr. Cavanaugh andthe tape recording of his interview with appellant showedthat his opinion was compromised by his admittedly faulty techniques and without adequate foundation. For example, Dr. Cavanaugh stated his opinion that appellant had a basic understanding ofthe players in the proceedings and a capacity to assist his attorneys, based on appellant's ability during the interview to sometimes respond appropriately to questions about what a trial and judge were. (4RT 519-21.) However, Dr. Cavanaugh agreed that appellant's answers about how an attorney should defend (he said "it doesn't really 69 matter what[the lawyers] do” and that "we'reall just doing the wrong thing" and "we don't acknowledge God," and that he would just leaveit in God's hands) did not express a good understanding of an attorney's function. (4RT 554-56.) For example, when Dr. Cavanaugh gave appellant some "rough examples"ofdefenses, he felt appellant was "able to grasp the[ir] nature" but noted that appellant "rapidly movedinto his idea that this is neither here nor there. We have nothing to prove for God is what he said." (4RT 505.) Although Dr. Cavanaugh stated that "at the time” he saw him (months earlier) he felt appellant was able to assist counsel in conducting the defense, this opinion was based on "the fact that he was able to respond logically and rationally to questions which didn't pertain to thetrial,” such as questions regardinghis past history. Dr. Cavanaugh also said that appellant handled without too muchdifficulty hypothetical questions regarding what he would do ifhe were an attorney. (4RT 521.) In fact, what appellant said in response to questions from Dr. Cavanaugh wasthat ifhe were an attorney he would say "I'm just going to leaveit in God's hands." (Exh. 7, 1 Clerk's Supplemental Transcript 79-80.) When Dr. Cavanaugh posedspecific questions about defending cases, appellant said as a lawyer he would "just tell the truth,” and that he really didn't "understand that the poor guy who's being charged and they saw at that time and he'stelling his lawyer that this other people that they call the 70 victim that he's the one whotried to rob money from him . .they all have to prove, I guess, what really happened, and that's that's here and now. Like I said, we've got nothing to prove against God" and then continued in this religious vein. (Id. at 82-83.) Dr. Cavanaugh testified that appellant understood his attorneys'role: appellant said they represented him, but also said that the most important thing they had done wasto arrange contact visits for him and his children. Appellant also understood that the prosecutor was "against him." Yet appellant stated, "I don't understand the system or what is happening,all they do up there, I really don't." (4RT 542-43.) When Dr. Cavanaugh asked appellant what the judge did, appellant responded, "I guessheis monitoring what's going on. I really don't understand." Dr. Cavanaugh prompted him by saying, "Who, uh, who sentences?" Appellant responded that God did. (1CST 71; 4RT 543-44.) When Dr. Cavanaugh tried to focus appellant on punishmentin the temporal plane, by asking what jails were for, appellant said, "That's just victims too. People has different perspectives from my... perspective is that just to punish somebodythat you're not supposed to be punishing. Ifyou want to punish somebodyit'll be yourself and you do not even know howto help even." When Dr. Cavanaugh asked if people who did bad things needed punishment, appellant ranted about God and peace: 71 "They don't have a right to do that just as the people don't have the right to judge, to prosecute, to put peoplein jail, to keep them in jail... just the same thing. Exactly, nobodyhas therightto invade the space of someelse business, but themselvesandit's just completely wrong in every way you see it. Like I said, just because there's a lot ofpeople who's robbing, people who's taking lives of other people... just because of uh, people is sending people to prison, people is judging and sentencing and punishing and taking the lives ofpeople who's supposed to be... committed a crime,that doesn't mean that weare right. That's why weare suffering ourselves. Instead of that we could just trust God and pray and thank Him for all the good things He gives us andbe at peace with Him, And when wefind peace with our brothers and we don't need t o worry aboutall those things... because we worry so much about all those things and that's why they happen.” (1CST 72.) Dr. Cavanaugh asked appellant why he neededto enter a plea of not guilty if it was not right for people to judge. Appellant responded: "Cuz that's what they told meto say, but, uh, I don't need to prove nothing to no people. Godis the one whois going to do whatever He wants to do with me and He's doingit. Just like the way He's doing it to everybody. We think we can go up above him, we won't, and that's when we pay the consequences, and whateverI did against Him,I'm real remorseful and Heis the one who knows meandthat's what I care for. I want to please Him, I don't need to please nobody else. He wants meto please you. I will do it. I just want to do it in a certain way because I wouldn't be talkin’ to you at all. God just keepsletting me knowthat I need to do certain stuff... so you can know... learn about Him. 'Cuz, I just... most ofus will say that we know about Him,butit's just in our [] conscious mind or something. I don't know, but we really don't know about Him. We needto learn about Him." (1CST 72-73.) Cavanaugh agreedthat appellant's statements did not show much understanding ofthe different pleas in a criminal proceeding. (4RT 545- 47.) 72 Dr. Cavanaugh also agreed that appellant failed to respond to the question about the jury's role. Appellant's nonsensical description ofthe jury was: "a personis being tried and what happened and they are to decide if that person, something that is completely wrong,that is, this guy is who decides andthey translateit all being wrong. Nobody can helpit, that is like assuming again." (4RT 558.) Dr. Cavanaugh admitted that at almost every point at which he talked to appellant about things a competent client needed to be able to do, appellant wentoff into religious rants. (4RT 572.) Dr. Cavanaugh had to "redirect" appellant on a numberofoccasions and appellant sometimes gave long-winded answerson religious themesthat had almost nothing to do with the question posed. (4RT 524-25.) When Dr. Cavanaugh askedif appellant could tell him what happened, or what people said happened, appellant responded: "I don't know... I don't know ... I don't know whatthey say that happened. J don't wantto talk about what happened... I'm forgiving about that and thenI'll find the peace... so I don't need to remember things that ... what happened to a lot ofpeople and what happened to me. I don't wantto hurt anybody andI'm prayingfor all those people whotry and hurt me because,like I said,it's not, it's not in my heart for Godto kill someone. IfHe allowsit, I mean, I'm going to befine... still, so, I don't want anybody to hurt themselves. Like I said, I have no control over it. There is nothing I can do butpray. Pray for them. Pray for everybody and pray for me. I'm not worrying about all those things that they want to do up there, um,it's just that they are gonna be allowed to do whatever's fair. They can go." (ICST 69; 4RT 540.) 73 Despite Dr. Cavanaugh's repeated questions about the facts underlying the charges, appellant never gave a direct answer, and instead talked about finding peace, praising God, and said he didn't understand what murder meant: "Dr. Cavanaugh: And, it says that you are charged with murder. Is that your understanding? Mendoza: That's what I did understand before but, right now, the more I think aboutthat is that I didn't do nothing. If weare all suffering about the situations where weput ourselvesinto it, it is because we, ourselves put into our, into that. We're sorry because of our bad deeds. [] And now because someoneelse did something for us. And, all we have to dois trust God and have faith and have the confidence, and pretty soon we are gonna be OK. Andthatis for everybody. Dr. Cavanaugh: OK... can youtell me, just, not relating to you or your charges, but in general, what does murder meant? Mendoza: Thereis nothing I can say that will help. Like I said, we don't need to worry aboutall these things. We're just wasting our time. Onereal simple thing we can do is praise God and thank Him for all the good things that He gives us. We don't do that. We worry about so manyother things that's why we're in trouble. Dr. Cavanaugh: OK,I understand that, but [] what does murder mean? Mendoza: I don't understand what murder means, so, whatever peace meansin our land, or what they mean." (1CST 70; 4RT 541.) In short, Dr. Cavanaugh himselfwas unable to discuss with appellant in any rational way even the mostbasic facts ofthe case, which corroborated the defense experts’ opinions that appellant was unable to consult with defense counsel or assist in his defense in a reasonablerational 74 manner, as is required under United States Supreme Court precedent. (Godinez, 509 U.S. at 398; Cooper, 517 U.S. at 354; see also ABA Criminal Justice Standards on Mental Health (1989) Standard 7-4.1 [competencyto stand trial requires not only a basic understanding ofthe adversary system, but also an ability to rationally communicate to counsel pertinent information and otherwiseassist in the defense].) People v. Lawley, 27 Cal.4th at 132 explained that the chiefvalue of an expert's opinion rests upon the material from which his opinionis fashioned, and the reasoning by which heprogresses from his material to his conclusion, and not in the "mere expression of conclusion." Lawley described expert evidence as an "argument" which has value only in regard to the proofofthefacts and the validity of the reasons advanced for the conclusions. (Ibid., citing People v. Bassett (1968) 69 Cal.2d 122, 141.) Dr. Cavanaugh's opinion that appellant was competent (10 monthsearlier) lacked both factual proof (because ofhis failure to follow-up or investigate) and valid reasons (because of his use of speculation or conjecture). For example, Dr. Cavanaugh concludedthat appellant's preoccupation with religion was "authentic" rather than "delusional,"i.e., appellant had "overvalued" religious ideas not delusions. Dr. Cavanaugh thus opined that these ideas would not interfere with appellant's ability to cooperate with counsel becausereligious ideas were "less firm than 75 delusions," which tended to be more "unreasonable." Dr. Cavanaugh acknowledgedthat delusions could interfere with the ability to cooperate, and acknowledged thatthe distinction between delusions and "overvalued ideas" was a matter of degree, and that the person's culture was one ofthe exclusion factors in deciding whatis a delusion(so that religiosity might not be a delusionifit is culturally based). (4RT 574-75.) However, Dr. Cavanaugh conducted no investigation into appellant's culture. Nor did he consult with family or friends to see if appellant's religious preoccupation was recent or not. (4RT 575.) Since Dr. Cavanaugh could cite no facts in support of his conclusion that appellant did not have delusions (which could interfere with his ability to consult with counsel), and because he did not attempt to obtain the facts required to distinguish between delusions and overvalued ideas, his conclusion that appellant was not delusional was without substantial evidentiary value. His opinion on this point was "the mere expression of a conclusion." (Lawley, 27 Cal.4th at 132; People v. Moore (2011) 51 Cal.4th 386, 405 [proper expert opinion cannot be based on mere conjecture or speculation].) Because Dr. Cavanaugh did not bother to investigate the facts required to distinguish between delusions and preoccupations, his opinion that appellant was not delusional was mere "argument" unsupported by facts, and thus of insignificant evidentiary value. (Lawley, 27 Cal.4th at 132.) 76 Dr. Cavanaugh's lack ofpreparation, inadequate foundation, and consequentlapses in reasoning are demonstrated by his failure to ask follow-up questions and his non sequiturs. When appellant said some people didn't like him and that he was rejecting God and they were rejecting God too, Dr. Cavanaugh's follow-up non sequitur question was "Howtall are you?" Dr. Cavanaugh did not ask appellant why he thought people didn't like him but agreed that having information about appellant's thoughts on this issue would be important in assessing whether a person has paranoid ideation. (4RT 532.) After asking how tall he was, Dr. Cavanaugh asked if appellant ever heard voices, which prompted a rant from appellant: "Like I said, I don't wanna talk no more about my personallife and if you guysare tryin’ to say that I'm crazy,I'm not crazy. Ifyou think that I'm crazy, well just everybody's crazy, because the reason weall got problems because we don't trust God, and all you guysare doing out there . . . it's just ... it's wrong. Everybody outthere is trying to do something that they think is right by people, judging people, condemning people, sentencing people and all of it is wrong because it's not in our handsto do that. All we have to do is praise God. Praise God because,all the good things that we have thatwill really help is from them... from Him, not those of us." (1CST 63.) When Dr. Cavanaugh tried to explain that he was trying to determine whether he could or couldn't cooperate with his attorney, appellant said that "this whole processis just wasting our time [] all this recording and going to court [is] just wasting oftime. We don't, we don't even know ifwe are gonna be alive tomorrow,noneofus do, so the best thing we can do is praise God and thank Him forall the good things that He gives us everyday.. . [] like I said, we all, most ofthe time, are doing stuff that we are not supposed to do. Andthenall the 77 people are doing is hurting people and the most important thing is hurting themselves. We don’t know that, that's why we keep on doing it. But, um, I myself, I'm there with um... but I'm doingthat, but I don’t want to be doing that. I want to have a really good relationship with God, and I want everybody to havea real good relationship with Him. And howis that []? All we have to dois not to worry about anything up there, but praise Him and thank Him... thanking Him for everything Hedoesfor us. It is His good things that He does for us. And,I'm talking about... I don't need to worry about tomorrow,not even what's going to happen later, but what is going on right now. And, right now,I know that I'm in peace and believe it or not, you're in peace because you're nottrying tot do anything | to me... and, in the eyes of Godandjustthat... it's not becauseofyou, butit's the Law ofGod and we're all gonna be OK pretty soon. Even though we're trying to ... our best, to do the opposite." (1CST 63-64.) Dr. Cavanaugh was unable to focus appellant on the questions asked. Appellant talked about God at a high level of abstraction rather than giving the concrete answer Dr. Cavanaugh sought. Despite several attempts Dr. Cavanaugh wasunable to direct appellant back to the court process. Appellantfinally said the voices he had heardhis wholelife and recently more frequently were "inner voices that are from God." Although Dr. Cavanaugh did not considerthese voices as hallucinatory, he also did not ask any questions about the voices, when they came, or whether they issued commands. (4RT 533-36, 565, 573.) When Dr. Cavanaugh asked appellant what kind ofpenalty he faced, appellant said he didn't know and didn't worry about it. (4RT 546-47.) Whentold it was a death penalty case, appellantsaid, "T hear that's what they thinking, but I can tell you they're completely wrong... it's going to happen what God wants. Yeah, because 78 whatever happened up there in mycase,it ain't happening to someone... I really don't understand it, why it happens, but you have to ask Him... and we'll find peace ourselves, asking Him for that peace that we want in our minds and in ourhearts, or we'll never find it.” (4RT 547; 1CST 73.) Dr. Cavanaugh was unfamiliar with the concept ofmitigation in a capital case. (4RT 528.) Because Dr. Cavanaugh was himself ignorant of the meaning of mitigation in a capital trial, his opinion that appellant was able to consult with and assist counsel at the penalty phase ofthat trial was necessarily without foundation and cannot be deemed "substantial evidence" in support of the competency verdict. If Dr. Cavanaugh did not know what types ofthings appellant would be called upon to discuss or assist in for preparation and presentation ofmitigating evidence, Dr. Cavanaugh obviously could not determine that appellant was capable of doing the (to Dr. Cavanaugh) unknown. The federal constitution requires that to consult with counsel and assist in his defense, the defendant mustbe able to give specific information to counsel, and must be able to focus on questions posed by defense counsel. Appellant was not able to do this with Dr. Cavanaugh. Thus, the facts of the interview do not support the doctor's opinion, and his opinion is without solid evidentiary value. Dr. Cavanaugh was shown to have conducted a wholly perfunctory interview with appellant. He admitted not asking important follow-up questions, failing to investigate by questioning appellant's family membersasto his religious ideation. Indeed, 79 as Dr. Stewart pointed out, Dr. Cavanaugh apparently had not even bothered to inform himself about the facts ofthe case asillustrated by the fact that he asked appellant how his marriage was going, and ifhe had any problemsthere. (CST 59; 3RT 399-400.) Dr. Cavanaugh's owntestimony (and the tape recording ofhis interview with appellant) show that appellant was in fact unableto assist counsel since (1) appellant did not express a good understanding of an attorney's function; (2) when Dr. Cavanaugh talked to him about things a competent client would needto do, appellant ranted aboutreligion;(3) despite repeated attempts by Dr. Cavanaugh to ask appellant aboutthe underlying facts of the case, appellant never gave a direct answer and talked about peace and God;and (4) appellant was unable to focus on the questions asked. Appellant was unableto discuss the proceedings, the parties, the facts ofthe case or his defense in a reasonable, rational manner. Because the facts upon which Dr. Cavanaugh relied for his opinion(the taped interview) did not support his conclusion his expert opinion was mere argument and insufficient to support the verdict.” In sum, Dr. Cavanaugh's testimony was a "mere expression of conclusion," Lawley, 27 Cal.4th at 132, rather than an opinion based on ” Dr. Cavanaugh nevertestified that appellant was malingering or feigning. Rather, Dr. Cavanaugh testified that based on the facts of the interview he conducted, appellant was competentto stand trial. However, as shown here,the facts of that interview do not support his opinion. 80 facts and valid reasoning, and thus did not amount(either standing alone or with the other bits of evidence presented by the prosecution) as substantial and solid evidencesufficient to support the jury verdict of competency.” (b) The taped phone conversations between appellant and family members showed nothing about his legal competency. In the taped conversations with his family members, appellant was able to talk to his sons: he told them to be good, to pray to God, andthat he loved and missed them. Hetalked to his wife Cindi andsister-in-law Pati abouthis sons and the threats they had faced from Cindi's former boyfriend (victim Chavez) and her new boyfriend Jesus. As Samuel pointed out, such testimony “revealed little if anything about [appellant's] competence to standtrial" because an ability to communicate as to routine tasks or matters bears "little relation" to the question of competency. (29 Cal.4th at 502; see also American Bar Association, ABA Manual on Criminal Justice Mental Health Standards (1989) 7-4.1 [ability to assist counsel is substantially different from an ability to understandtrial proceedings].) Onthe other hand, these conversations confirmed appellant's paranoid andreligious ideation, and his inability to talk coherently about the facts ofthe case: he repeatedly expressed his fear that his children were 3 Even thetrial court seemed to think that Dr. Cavanaugh's testimony was insufficient standing alone whenit stated that his opinion was "supported" by the phonecalls and "other evidence"indicating appellant was capable of somerational discussion. (SRT 760.) 81 being harmed,he told Pati he had done nothing wrong,that they hadall taken lives, that he even wishedhis children's deaths so they would be in peace andthat this was "coming from God." (CST at 40-49.) (c) Testimony from jail staff as to trivial conversations with appellant failed to refute the strong evidence of his legal competency. Psychiatric nurse Mandujamotestified that when she last saw appellant two years ago she "recalled" no difficulty speaking with him. Deputy Watson hadbrief conversations with appellant when passing by his cell seven monthsto a year prior to trial. The conversations consisted of appellant saying he was "fine"or asking for a cell change. Testimony that appellant was able to engage in short banal conversation or make requests regarding his living conditions show only that appellant was sometimes able to conduct a rational discussion about everyday matters. Asin Samuel, this testimony bore little or no relation to appellant's present competency. (29 Cal.4th at 502.) (d) Dr. Trompetter gave no opinion as to appellant's competencyat the time of his arrest or any other time. Dr. Trompetter gave no opinionatall as to appellant's competency past or present. He had never interviewed appellant, and at the time oftrial it had been three years since his single "observation" of appellant during the police interview following his arrest. Dr. Trompetter acknowledgedthat 82 appellant made paranoid comments andreligious references during this interview. Dr. Trompetter's testimony was devoid of any fact relevant to the test for competency, past or present. Specifically, he gave no testimony in support of Dr. Cavanaugh's (outdated and unfounded) opinion that appellant was capable of rationally consulting with and assisting counsel. D. The Insufficient Evidence of Competency In This Case Requires Reversal. This Court has distinguished Samuel in several recent cases. However, analysis ofthese cases demonstrates that they are distinguishable from the case at bar, which is much moreclosely aligned with Samuel. In People v. Marks (2003) 31 Cal.4197, 219 -- in contrast to Samuel and the case at bar -- the defense evidence of incompetency "was not compelling." The reliability ofthe expert testimony presented by the defense wascalled into question in cross-examination. Moreover, the defense experts whotestified that the defendant was incompetent were unfamiliar with the evidence that tended to render the defendant's behavior comprehensible rather than paranoid. Finally, in contrast to Samuel and the case at bar, the prosecution in Marks produced "abundant evidence"that the defendant was competent, in particular statements and conductby the defendant showing that when he wanted he was well able to assist in his defense (his outbursts showed his understanding) and refused to cooperate only in his attempt to obtain substitution of counsel. (Id. at 269-70.) 83 The evidencein this case is the converse of that in Marks: here the defense produced "abundant evidence"of appellant's incompetency, appellant made no in-court statements or that showed he was able to assist in his defense; the prosecution presented no expert evidencethat appellant was competent at the time oftrial; and the reliability of the expert testimony provided by the prosecution was shownto be based on an inadequate foundation and did notin any way undermineorcontradict the evidence of incompetency presented by the defense. People v. Hill (1998) 18 Cal.4th 894, 1003-05 overruled on other groundsin People v. Doolin (2009) 45 Cal.4th 390, rejected a claim of insufficient evidence of competency where twoofthe three court-appointed experts whotestified found appellant competent after standardized testing and/or lengthy interviews with the defendant; furthermore, a deputy who had seen appellant every day during thetrial observed no significant changes in his behavioror ability to communicate. Clearly, where there is solid and credible expert testimony as to the defendant's present competency,as in Hill, a claim of insufficiency will founder. But in this case the experts who conducted testing and/or lengthy interviews with appellant found him incompetent; the expert who considered appellant competentin the past (Dr. Cavanaugh) had done no testing, conducted only a 1.5 hour interview, and did no preparation (as 84 evinced by his question re marriage) or follow-up (such as checking culture before determining religious fixation was authentic rather than delusional). v.(1997) 15 Cal.4th 1 involved expert witnesses whoseopinionsthat the defendant was incompetent were based "primarily on their interviews with defendant," but both had "reservations regarding their expressed views of defendant's incompetence." (Id. at 32.) One doctor said his opinion of incompetency lacked a level ofreasonable medical certainty, and the other said it was possible that the defendant could cooperate with counsel if he wanted to. Moreover, the court had beforeit evidence ofthe defendant's conduct while he was representing himself that supported a finding ofmental competency. (Ibid.) Here, by contrast, the three defense experts were definitive in their opinions, and the prosecution's experts were inconclusive. People v. Stanley (1995) 10 Cal.4th 764, 809 also distinguished the facts in that case from the "virtually one-sided showing of incompetence"in Samuel. In Stanley, defense counseltestified that the defendant had been competentto assist in the defense until a disagreement about the use of tape-recordingsat penalty phase. The defense medical expert testified that he believed the defendant to be incompetent, although onetest he administered marginally supported a finding of competency andthe second marginally supported a finding of incompetency. Testimony by a jailer and inmate supported a finding of competency. Two court-appointed experts 85 presented by the prosecution found the defendant competent after hour-long interviews. (Id. at 809-11.) Here by contrast, the defense presentation was overwhelming and unequivocal, the prosecution's experts either gave no opinion (Dr. Trompetter), or gave an unfounded and outdated opinion (Dr. Cavanaugh), and the jailhouse witness testimony borelittle or no relation to competency. E. International Jurisprudence on Competency to Stand Trial Fully Supports Appellant's Claim that the Evidence Against Him Was Insufficient to Support the Verdict. The United States Supreme Court has long referred to international legal normsandthepractices of other nations when determining the contours of due process requirements. (See, e.g., Lawrence v. Texas (2003) 539 U.S. 558, 573 [citing ruling by the European Court ofHuman Rights as indicative of “values we share with a wider civilization” embodied in Due Process Clause requirements].) “4 Nowherein law is this confluence between domestic and international practice more evident than in the prohibition against trying individuals who are not mentally competentto assist in their own defense. As the Supreme Court has repeatedly acknowledged, “[t]he rule that a “4 See also Rochin v. California (1952) 342 U.S. 165, 169 [Due Process Clause obliges courts to ascertain whether laws offend “those canons of decency andfairness which expressthe notions ofjustice ofEnglish- speaking peoples”]; Fisher v. United States (1946) 328 U.S. 463, 488 (Frankfurter, J., dissenting) [when reviewing fairness of death sentence in case raising mental responsibility issues, Court “should be guided, as was the [British] Privy Council...by broad considerations ofjustice”]. 86 criminal defendant whois incompetent should not be requiredto standtrial has deep roots in our common-law heritage.” (MedinaCalifornia (1992) 505 U.S. 437, 446; accord Missouri (1975) 420 U. S. 162, 171 [accepting longstanding “common-law prohibition” against trying the mentally incompetent]; Oklahoma, 517 U.S.at 356-359 [relying on extensive survey of historical and contemporary English common law practice in determining that incompetencyis established by a “preponderance of the evidence” standard].) To be sure, the Court’s longstandingreferral “to the laws of other countries and to international authorities” is not dispositive; however, these international sources are “instructive for its interpretation” of constitutional issues. (Roper v. Simmons (2005) 543 U.S. 551, 575; cf. People v. Cook (2006) 39 Cal.4th 566, 620 [where defendant has established “that he was denied due process[or] a fair and impartialtrial,” the court is not precluded “from reaching his international law claims based on thoseallegations”].) Moreover, international jurisprudence supports the merits of appellant’s claim that he was incompetentto standtrial and shedssignificant light on the legal factors that this Court is now called upon to consider. In the United States, the test for a defendant’s competency to stand trial has long been “whether hehas sufficient present ability to consult with his lawyer with a reasonable degree ofrational understanding — and whetherhehasa rational as well as factual understanding ofthe 87 proceedings against him.” (Dusky v. United States (1960) 362 U.S. 402.) A one-pageper curiam orderthat is bereft of any guidance on the meaning or application ofthese requirements, the Dusky holding "has been criticized for both its brevity and ambiguity by mental health professionals and legal scholars alike. Despite these concerns, the Dusky standard, or some variation ofit, has been adopted by every state in the United States ....” (GianniPirelli et. al., A Meta-Analytic Review of Competency to Stand Trial Research, 17 Psychology, Public Policy, and Law 1, 2 (2011).) However, the high courts of other common-law jurisdictions have provided substantially more detailed guidanceonthecriteria and content required for competency determinations. For example, courts in Australia uniformly apply what has become known as the “Presser rules” when evaluating a defendant’s fitness to standtrial, as announcedin R. v. Presser [1958] VicRP 9 VR 45 at 48.*° UnderPresser, an accused must "be able to understand whatit is that he is charged with. He needs to be able to plead to the charge and to exercise his right ofchallenge. He needs to understand generally the nature ofthe proceedings, namely, thatit is an inquiry as to whether he did what he is charged with. He needsto be able tofollow the course ofthe proceedings so as to understand whatis going on in Court in a general sense, though he need not, ofcourse, understandall theformalities. He needs to be able to understand the substantialeffect ofany evidence that may be given against him; and he needsto be able to make his defence or answerto the charge. Where he has counsel he needs to be ableto dothis by letting his counsel know what his version ofthefacts is and, ifnecessary, telling the Court 4 Available at 88 whatit is. He need not have the mental capacity to make an able defence: but he must, I think, have sufficient capacity to be able to decide what defence he will rely upon and to make his defence andhis version ofthefacts known to the court andto his counsel, ifany.” These detailed criteria are viewed as “the minimum standards with which an accused must comply before he or she can be tried without unfairness or injustice.” (Kesavarajah v. R [1994]181 CLR 230at 245 (Austl).)”° Incompetencyto standtrial is established if a preponderance ofthe evidence showsthat the defendantfails to meet any one ofthese requirements. (See R v. Miller [No. 2] [2000] SASC 152 (Supreme Court of South Australia),’’ at para. 43 [finding defendant incompetent to stand trial on the sole basis that “the accused is unable to understand the charge” and without reliance on the other presented criteria for unfitness, such as inability to exercise proceduralrights].)* Drawing on common law precedents dating back to 1836, the Court ofAppeals for England and Wales determinedthat the appropriate test for competencyto standtrial requires an evaluation ofsix primary factors: “(1) *° Available at http://www.austlii.edu.au/cgi-bin/sinodisp/au/ cases/cth/HCA/1994/4 1 .html?query=titleKesavarajahandR orhttp:// www.austlii.edu.au/au/cases/cth/HCA/1994.41 html “7 Available at “8 Available at 89 understanding the charges; (2) deciding whether to plead guilty or not; (3) exercising his right to challenge jurors; (4) instructing solicitors and counsel; (5) following the course ofthe proceedings; (6) giving evidencein his own defence.” (R.v. John M [2003] EWCA Crim 3452, at para. 20.)” The appellate court foundthat thetrial judge correctly instructed the jury that “it was sufficient for the defence to persuade them on the balance of probabilities that any oneofthose six things was beyond the appellant's capabilities.” (Ibid.; emphasis added.) Elaborating on the fourth component, the court approved of a jury instruction explaining that instructing counsel "means that the defendant must be able to convey intelligibly to his lawyers the case which he wishes them to advance on his behalf and the matters which he wishes them to put forward in his defence. It involves being able (a) to understand the lawyers’ questions, (b) to apply his mind to answering them, and (c) to convey intelligibly to the lawyers the answers which he wishesto give." (Id. at para. 21.) Statutory embodiments of competency requirements in other common-law jurisdictions are also instructive: under Canadian law, for example, “unfit to stand trial” is defined as “unable on accountofmental disorder to conduct a defence at any stage of the proceedings before a verdict is rendered or to instruct counsel to do so, and, in particular, unable on account ofmental disorder to (a) understand the nature or object ofthe “8 Available at 90 proceedings, (b) understand the possible consequencesofthe proceedings, or (c) communicate with counsel.” (Criminal Code, R.S.C. s. 2. (1985) (Can.); cf. California Pen. Code §1367 (a) [incompetence defined only as “unable to understand the nature of the criminal proceedingsorto assist counsel in the conduct of a defense in a rational manner’”].). Elsewhere in the Western world, the European Court ofHuman Rights has held that effective participation in trial proceedings presupposes that an accused(i) “has a broad understanding ofthe nature ofthetrial process and ofwhatis at stake for him or her, including the significance of any penalty which may be imposed”;(ii) is “able to understand the general thrust ofwhat is said in court”; (iii) is “able to follow what is said by the prosecution witnesses and, if represented, to explain to his own lawyershis version of events, point out any statements with which he disagrees and make them aware of any facts which should be put forward in his defence.” (S.C. v. the United Kingdom,no. 60958/00, para. 29, ECHR 2004-IV.)° Fortheir part, international criminal tribunals have elaborated on the elements required for the defendant’s “rational and factual understanding” ofthe proceedings: "[T]he Defendant in the present case must have both a rational and a factual understanding ofthe specific charges against him, the processofa trial, the roles of the participants and the consequences ofa conviction. This also means that he 50 Available at < www.menschenrechte.ac.at/orig/04 3/S/C/ GB.pdf> 91 must have both a rational and a factual understanding ofthe role of his lawyer in defending him. Additionally, he must have a presentability to consult with his lawyer and. . . . to assist in the preparation of his defense with a reasonable degree of rational understanding." (Special Panels on Serious Crimes (East Timor), Deputy General Prosecutor for Serious Crimes v. Joseph Nahak, Case No. 01A/2004, Findings and Order on Defendant Nahak’s Competenceto Stand Trial, 1 March 2005, paras. 55 and 156 [hereinafter “Nahak Judgment”]).”! “A failure to have adequate capacity as to any one ofthese elements of competency would befatal to a defendant's fitness to standtrial.” (Id. at para. 135; emphasis added). In a similar vein, the International Criminal Tribunal for the former Yugoslavia (ICTY)recently reviewed the “non-exhaustivelist of rights which are essential for determination of an accused’s fitness to standtrial” by citing a case in which the defendant’s indictment for war crimes had been dismissed 31 Established under United Nations authority, the Special Panels on Serious Crimes (SPDS) heard cases of alleged genocide, war crimes and crimes against humanity perpetrated in East Timor. The Nahak Judgment of the SPDSis available at 92 "on the basis that his mental disorder rendered him incapable ofparticipating in the criminal procedure,i.e. of understanding the indictment, pleading about his guilt, presenting his case, carefully following the course of the hearing, suggesting evidence, examining witnesses, cooperating with his counsel and actively participating in the proceedings usingall the rights he has as the accused." (ICTY, Prosecutor v. Pavle Strugar (Appeal Judgment), IT-01-42-A (17 July 2008), paras. 54 and 55 [hereinafter “Strugar Judgment].)” In short, the competency standard applied in comparative common- law andinternational jurisprudence is broadly consistent with (but often substantially more detailed than) “a person whose mental condition is such that he lacks the capacity to understand the nature and object of the proceedings against him, to consult with counsel, and toassist in preparing his defense... .” (Drope v. Missouri, 420 U.S. at 171.) These additional sources provide important guidance on the range offactors thatthetrial court should have considered. F, Conclusion. In conclusion, the defense far exceeded its burden to prove incompetency by a preponderance of the evidence. Thejury's verdict was not supported by the evidence. It was notreasonable forthe jury to reject the wealth of evidence presented by the defense. Reversal of appellant's subsequentconvictions is thus required in order to ensure that appellantis Available at [accessed 22 October 2011]. 93 not convicted and sentenced to death until he is able to rationally consult with his counsel and assist in his defense. As Samuel explained, although the reviewing court should give deference to the trier of fact, the jury's discretion is not absolute, particularly in the context of a competencytrial, where neither the prosecution nor the defense has a constitutional right toa jury trial, and reversing the competency finding does not necessarily affect the question of guilt or penalty. More importantly, in Samuel asin this case, almost all the experts were either medical experts or employees of public institution and could not reasonably be suspectedoffalsification, and there wasnoreal conflict in the facts, only the conclusions to be drawn from the facts. Thus, the jurors did not have to determine which version of the facts to believe, but had before them only the question ofwhatto conclude from the undisputed facts. (Id. at 505-06.) Understate, federal and international law, the overwhelming and unrefuted evidence demonstrated that appellant was incompetentto stand trial. His due process rights were violated and his convictions must be reversed. / 94 II. AFTER THE COMPETENCY JURY VERDICT AND BEFORE, DURING, AND AFTER THE GUILT/SANITY/PENALTY TRIAL, THE DEFENSE REPEATEDLY SHOWED SUBSTANTIAL CHANGED CIRCUMSTANCESAS EVIDENCE OF APPELLANT'S PRESENT INCOMPETENCY, SUCH THAT THE TRIAL COURT'S REFUSAL TO REINSTATE PROCEEDINGS WAS AN ABUSE OF DISCRETION, UNSUPPORTED BY THE FACTS, AND THE RESULTANT DUE PROCESS VIOLATION REQUIRES REVERSAL OF APPELLANT'S CONVICTIONS A. Introduction and Summary ofArgument. After the jury verdict of competency a year before the guilt/sanity/penalty trial, appellant repeatedly showed a substantial change of circumstances sufficient to warrant suspension ofthe proceedings for a further hearing on his present competency. Thetrial court's refusal to reinstate proceedings under section 1368 was unsupported by the facts, and as such wasan abuseofdiscretion and a violation of appellant's federal due process rights, requiring a reversal of appellant's convictions. (Peoplev. Ary (2011) 51 Cal.4th 510, 517-18.) B. Summary ofProceedings Below. On January 19, 2005, at a hearing on appellant's motion to represent himself, appellant said he understood the charges against him. When asked if he had legal training, he answered, "No, butthis is my life and the life of my kids. So there is no one out there who cares about them. AndI do care so I'm going to do everything I can to protect them." (SRT 756-47.) When the judge asked if he knew what defenses were available to him, appellant said, "Whatever is available is up there. And Godis helping me, so I'm 95 going to be able to doit becausethisis all a lie. And the People is there to protect the so-called innocentvictims. And how come they weren't there to protect my kids that were really innocent?" (SRT 747.) When asked what kind of expert witnesses he would beable to call, appellantsaid, "Somebody who doesn't lie. It doesn't matter who. Somebody whotells the truth." (SRT 747.) Whenthe judge asked him if he could read and write in English, appellant said, "I'll do my best. But like I said, this is my life and this is the life ofmy kids and there is people who corrupted them and they can take their bodies and minds, yours as well as mine, but they're not goingto take their spirit and it's not going to happen." (SRT 748.) Based on the proposition that competency to represent oneself required a different standard than competencyto standtrial, the judge stated that he did not believe appellant was competentto represent himselfbecause ofhis statements that he would put the matter in God's hands and that God would assist him.°? (SRT 749-50.) 3 At the next hearing date, the trial court reversed this ruling, stating that it was based on an incorrect assumption ofthe law that the two standards were different; and then denied the Faretta motion as untimely. (SRT 761-64.) In 2008, the United State Supreme Court concluded the two standards were different: Indiana v. Edwards, 554 U.S. at 178 held that the federal constitution permitted a trial court to insist on representation by counsel for those deemed competent to stand trial under Dusky but "who still suffer from severe mentalillness to the point where they are not competent to conducttrial proceedings by themselves." 96 On October 14, 2005, almost one year after the jury found appellant competent, and shortly before trial on the guilt phase, defense counsel requested reinstatement of section 1368 proceedings on the ground that appellant's major mental illness was currently in an active stage — a changed circumstance. Counsel pointed out that competency focused on the present time; that appellant was unable to cooperate in the defense; that he could not understandhisrights, including the right to testify; that he wanted the death penalty; and that he was a suicide risk. (SRT 929-30.) In a closed hearing,” defense counsel repeated that appellant's mental condition had deteriorated since the time ofthe competency verdict. They explained that they could not discuss the case with appellant because he would speak only about his children, the guilt of others, and the hypocrisy ofthe system. He could not follow directions. He was unable to testify in a relevant manner. Whencounselset up a meeting between appellant anda priest, appellant wanted thepriest to confess to him. He had expressed a desire for the death penalty, and had threatened suicide. The court stated its impression that there was no changein circumstancesjustifying ordering new competency evaluations. (SRT 941-42.) During jury selection two weeks later on November1, 2005, defense counsel reiterated their beliefthat appellant was incompetentto standtrial, “4 Thein camera proceedings at RT 941-44 on October 14, 2005 were sealed. This Court granted appellant's Motion to Unseal and made them part ofthe record available to respondent. 97 stating that he was uninvolved and did not respondtotheir solicitation of feedback. Thetrial court declared there was "no changeofstatus" since the last time the matter was taken upatthe start ofjury selection. (ORT 1603.) On November3, 2005, appellant was so obviously unhinged during that the trial court expressed its "concern" about having Cindi on the stand "under these circumstancesin the presence ofthe jury." (ORT 1888.) The court suggested Cindi leave during the playing ofthe 911 tape. However, Cindi wanted to remain. Appellant then waived his presence for the playing of the tape, and remainedout of court for the remainder of Cindi's testimony and the testimony ofthe witness who followed her. (LORT 1889- 90, 1894.) In an in camera conference after the tape recording was played, defense counsel described appellant as on the edge of a complete mental meltdown, saying appellant had "decompensated to a point that I haven't seen him before," and noted that he had been sobbing heavily, apparently hadn't been sleeping, and looked terrible — a changed circumstance. The trial court had suggested that appellant be "excused" during Cindi's testimony as a "compromise solution," after which they could "reassess"the situation. (RT 1892-93;10RT 1947[trial court summarizes in camera proceeding onthe record].) ad The in camera proceedings at RT 1892-93 on November 3, 2005 were sealed. This Court granted appellant's Motion to Unseal these pages and madethem part of the record available to respondent. 98 On November4, 2005, defense counsel stated that when appellant left the courtroom during and remained absentafter his wife's testimony on the day before, appellant had cried almost the entire time. When he was in court he was crying and continued crying "this morning” (Friday, November 4), which counselattributed to his mental disease or defect." Counsel reported that appellant's condition affected both their ability to represent him andhis ability to adequately participate in his defense. The trial court responded, "Thank you. See you Tuesday." (11RT 2060-61.) On November9, 2005, during the prosecutor's closing argumentat guilt phase, appellant blurted out, "It's a lie," when the prosecutor said appellant promised Guadalupe he wouldn't hurt her mother; and shortly thereafter, engaged in another outburst, saying, "I didn't plan to kill my family." (11RT 2171, 2173.) On November9, 2005, defense counsel again declared a doubtas to appellant's competency, noting that appellant had been consistently crying and sobbing throughout the proceedings. The court declared that appellant's conduct was "not different from that during the course of the case." (1IRT 2217-18.) On November29, 2005, at the end ofthe sanity phase, the Mexican government filed an amicus brief asking the court to re-examine appellant's competency. (4CT 909-16.) Mexico noted that appellant's crying during proceedings, and his mentalstate rendered him periodically unable to follow in-court testimony, which in turn compromised defense counsel's 99 ability to confer with him in an informed and useful way. Counsel could not communicate with appellant on any substantive issues, and could not obtain assistance from him to allow preparation for adequate cross- examination. Counsel could not discusstrial strategy with appellant in any useful way. (4CT 911-12.) Mexico informed the court that Dr. Weiss, the court's appointed section 1026 expert, was of the opinion that appellant was suffering from major depression with psychotic features, and that his condition had deteriorated since the time ofthe charged offenses -- a changed circumstance. (4CT 913.) Dr. Weiss's report was prepared after the competency verdict. (See RT 834 [June 9, 2005 hearing for setting time for Dr. Weiss to examine appellant pursuantto section 1026]; 2CT 526, 535 {Dr. Weiss was appointed pursuant to section 1026, after appellant entered a not-guilty-by-reason-of-insanity plea on June 1, 2005].) Mexico argued that appellant's inability to communicate with his lawyers during trial, his inability to respond to their advice, andhis inability to focus on or understand the proceedings amountedto a significant change in circumstancessince the time ofthe competency verdict a year before. (4CT 193.) Specifically, appellant was unable to make informed and rational decisions, based on the evidence andhis attorneys'strategic concerns, as to whetheror notto testify, to offer one or more defenses, and whether to present specific evidence and arguments in mitigation. (4CT 100 914.) Citing both federal constitutional and international law, the Mexican Government requested a further competency hearing prior to the penalty phase in appellant's capital trial. (4CT 915.) On December1, 2005 (after the sanity verdict was returned) the defense moved to foreclose the death penalty based on Atkinsv.Virginia (2002) 536 U.S. 304. (See Arg. V, pp. 142-155, below.) Thetrial court denied the motion, stating that Atkins didn't apply, that appellant's competency had already been litigated, and that there was no evidence to indicate appellant didn't understand or was unableto assist counsel. (14RT 2950-52.) Defense counsel observed that the Atkinsmotion was distinct from competency, and offered to present witnesses on the competency question, stating that they had never considered appellant competent and his demeanorandparticipation in thetrial up to the present had indicated he was not competent. (14RT 2952.) The trial court said that the Atkins factors did not apply and there were no other facts to justify granting the motion, taking into consideration the prior competency verdict and the court's own observations since that time. Defense counselspecifically asked to present further evidence on competency, arguingthat they should be allowedto do thatifthe court were relying on its observations. The court denied the motion to reopen the 1368 proceedings on the basis that there was no new substantial evidence to justify it. The court refused to 101 revisit the issue, statingthat the matter had repeatedly been raised and ruled upon. (14RT 2953-54, 2988-89, ISRT 3399.) On December 15, 2005,after the penalty phase jury retired to deliberate, defense counsel asserted that appellant was not competent and had not been competentthroughoutthetrial, as borne out by his blurting out of statements during the prosecutor's closing penalty phase argument ("leave my kids alone motherfucker" and "do whatever you want, butnot my kids . . . They're talking about killing somebody and they wantto kill me." (16RT 3360.) Thetrial court stated that appellant's competencylevel had "been the same throughout"andthatit had already ruled on the Mexican government's amicusbrief as to appellant's competency. (16RT 3398-99.) At the hearing on the newtrial motion on April 10, 2006, the defense argued once again that appellant was not competent to assist counsel and that he was not afforded an opportunity to testify on his own behalf. Defense counsel reported that appellant had talked to counsel about testifying but that in their opinion he was not competentto testify and so did not offer him the opportunity. (4CT 1037-45; 16RT 3422-23, 3418-28.) The judge said he had observed appellant from beginning to end after the competency verdict and that appellant was "basically the same." The judge reasoned (1) that jail tapes showed appellant apparently able to calmly and rationally discuss what was occurring; (2) that if defense 102 counsel decided appellant would not make a suitable witness, that wastrial strategy; (3) that if they failed to tell appellant he had a right to testify (and they might not have) they did everything else competent counsel would do when deciding whether he should testify; and (4) that consequently, appellant was not deprived of his Fifth Amendmentright. The court found no changed circumstances and denied the motion for new trial. (16RT 3426-28.). At the sentencing hearing on April 25, 2006, defense counsel asked the court to reweigh the question of appellant's competency. (16RT 3433- 35.) After Cindi Martinez and her sister Pati Gonzalez made statements, appellant addressed the court. Appellant said that nothing he said would take their pain away, "that only God can take the pain away. Andin order to learn about God, yourkids, look at your kids. Remember when youtalk to your mother, he was in her and in you andall of us." He insisted he had never wanted to hurt anyone,that he just "wanted the pain to stop, the pain that my kids were going through, because, you know, you knew from the beginning what you were doing [and that it] was wrongfor you doing that [] becausethere's a difference between me and you being murderers. You become a murderer for what you're doing." He expressed his sorrow for what he had donebutsaid he just wanted "to be there for my kids." (16RT 3446.) He said "the main thing [he] wanted" wasfor them to pay attention to God andlisten to his voice, and insisted that they werestill "damaging 103 [his sons] with what [they were] doing" but couldn't see if because they were blind from the hate and pain they had. "But God is so merciful that He [and only He could] changeall that." (J6RT 3447.) Defense counsel made a final argument as to competency,stating that there was nolegal cause to go forward becauseofappellant's incompetency. Thetrial court denied the motion and sentenced appellant to death. (16RT 3447-48.) C. Even After a Verdict of Competency,the Federal Constitution Requires the Trial Court to Reinstate Section 1368 Proceedings When Presented witha Substantial Change of Circumstances. The defendant's right to be competent during trial extendsto all proceedings before (and even after) his conviction. (United States v. Duncan (9th Cir. 2011) 643 F.3d 1242, 1248,citing Indiana v. Edwards, 554 US.at 170; see also People v. Lawley, 27 Cal.4th at 136 [at any time prior to judgmentfederal due process requires another full competency hearing where the court has been presented with substantial evidence of the defendant's present incompetency].) Even where the defendanthas already been held competentto standtrial, the court must suspend proceedings to conduct a second competency hearing whenit is presented with a substantial change of circumstances or with new evidence casting a serious doubt on the validity of the previous finding. (Ibid.) 104 The standard for assessing substantial evidence of a change in circumstances resembles the standard applicable to the requirementfor a first competency hearing, becauseit reflects the same constitutional and statutory requirements. (People v. Kaplan (2007) 149 Cal.App.4th 372, 384-85, applying the analysis in People v. Frye (1998) 18 Cal.4th 894, 1005 and People v. Weaver (2001) 26 Cal.4™ 876, 953.) Duncan explained that evidenceis "substantial"if it raises a reasonable doubt about the defendant's competency to standtrial. (643 F.3d at1249, fn. 2.) This Court has repeatedly stated that a competency hearing is required wheneverthere is evidence that "raises a reasonable doubt about the defendant's competence to standtrial." (People v. Koontz (2002) 27 Cal.4th 1041; People v. Welch (1999) 20 Cal.4th 701, 738.) D. Appellant's Demeanor, the Statements and Reports by A Medical Expert and Defense Counsel Were Sufficient To Raise a Reasonable Doubt as to Appellant's Present Competency Such That the Trial Court Abused Its Discretion by Refusing To Reinstate Competency Proceeding Where There Was No Evidence to Support The Trial Court's Ruling. Appellant contends that after the initial competency verdict, he presented the court with substantial evidence of a change in circumstances sufficient to raise a reasonable doubtas to his current competency. The trial court ignored the new evidence of appellant's competencyandinsisted, despite the facts to the contrary, that nothing had changed. This was an abuse ofdiscretion — there were no facts to support thetrial court's finding 105 ofno changed circumstances, and an abundance of specific evidence that the circumstances had changed. Consequently,the trial court's refusal to suspend proceedings for a determination as to appellant's current competency deprived appellant of his due process rights and requires reversal of his convictions. (People v. Ary, 51 Cal.4th at 517-18.) The first salient point is that defendant's competency to standtrialis determinedat the present time, and almosta year had passedsince the jury finding that appellant was competent. Although a priorfinding of competency can be taken into consideration when assessing whether another competency hearing is required, the prior verdict is not binding. A trial court "must alwaysbealert to circumstances suggesting a change that would render the accused unable to meet the standards of competenceto stand trial." (Maxwell v. Roe (9th Cir. 2010) 606 F.3d 561, 574, citing Drope, 420 U.S.at 181.) At the time oftrial in Maxwell, the initial competency determination was 13 monthsold and based on reports 18 months old. Maxwell held that where the trial court was aware ofthe defendant's subsequent strange behavior, his attempted suicide, his mental health history and his refusal to take prescribed drugs,the court erred by failing to hold another competency hearing, as this evidence was sufficient to raise a reasonable doubt as to his competency. (Id. at 576; see also Torres v. Prunty (9th Cir. 2000) 223 F.3d 1103, 1110 [a previous competency determination did not obviate need for a hearing where the 106 defendant believed his attorney was conspiring against him and repeatedly disrupted thetrial].) The facts here clearly should have raised a reasonable doubt as to appellant's competency: Dr. Weiss had reported that appellant's mental condition had deteriorated since the time ofthe competency verdict a year earlier and since the time of the offense, and that his disease had psychotic features. At the end of the guilt trial in November of 2005, a year after the jury found appellant to be competent, defense counsel reported to the court that appellant would not respond to their questions and that, as a result of his mental disease, he had been crying almost continuously throughoutthe testimony, which prevented him from participating in his defense and prevented them from representing him effectively. This was a significant change in circumstances. (11RT 2217-18.) Appellant's uncontrollable sobbing andhis later outbursts and other in-court statements were also significant changes. Although thetrial court stated that appellant's behavior was "not different in kind from that previously exhibited during the course ofthe case" (11RT 2218), this was demonstrably incorrect. Appellant may have been crying throughout the "courseofthe case" if by "course ofthe case" the trial court meantthe courseofthe jury trial on guilt. However, the properbasis for evaluating change in circumstances should have been appellant's behavior during the guilt trial compared to the evidence at the 107 competencytrial one year before. The expert testimony at the earlier competencytrial indicated that appellant was depressed and paranoid, and could notrationally evaluate or assist in the defense; andalso that appellant could notrationally think about issues and assist in his defense. However, there wasno earlier indication that appellant had been immobilized by continuous sobbing. Nor was there any indication that appellant was so distressed during the competency proceedings thathe left the courtroom during testimony. Moreover,the fact that the trial court itself expressed its "concern" for witness Cindi Martinez testifying while appellant remained (sobbing) in the courtroom strongly suggests recognition of a significant change of circumstance. People v. Dunkle (2005) 36 Cal.4th 861, 903” held that a general assertion by counselthat the defendant's condition had deteriorated since the first competency hearing, without any explanation ofhow it had done so, did not require a second competency hearing. Here, by contrast, counsel's assertion, the report by Dr. Weiss, and appellant's own behavior dramatically demonstrated both the deterioration in his condition and how that prevented appellant from assisting in his defense. Appellantleft the courtroom during important testimony by his wife and continued crying for days. A defendant overcome by sobbing cannot meaningful confrontor 56 See also Peoplev. Jones (1991) 53 Cal.3d 1115, 1153-54 and People v. Kelly (1992) 1 Cal.4th 495, 542-43 [accord]. 108 listen to witnesses, evaluate or assist the defense in cross-examination, or to assist in counsel in making "myriad smaller decisions concerning the course of his defense." (Cooper, 517 U.S.at 364.) Defense counsel also reported to the court that they could not discuss the case with appellant, that he was unable to follow directions, and that he unable to testify in a relevant manner, i.e., counsel provided a specific explanation ofhow appellant's mental condition had deteriorated in terms of his competency to stand trial. Against these specific assertions by defense counsel that they could not rationally discuss the case with appellant, the trial court relied on the tapes of appellant's conversations with family as indicating that he could talk rationally and calmly about what was occurring. This Court has held that such ordinary kinds of quotidian behaviorbear little relation to the question whether appellant was able to communicate rationally regarding legal matters. (People v. Samuel, 29 Cal.3d at 503.) The fact that appellant knew he had been found guilty and faced the death penalty, or that he thought the proceedings were racist and the attorneysliars, is hardly an indication supporting thetrial court's finding that appellant could talk rationally and that nothing had changed. (5CT 1118-50.) Similarly, the record belies the trial court's claim that it had observed appellant to be unchangedin his demeanor and behavior. Although appellant had earlier been quiet in court, during the guilt/sanity/penalty trial 109 he had outbursts and a breakdown, and spent days sobbing in court. When Cindi wason the stand appellant had the breakdownreported by defense counsel. The trial court's own actionsat this time, i.e., "suggesting" (in appellant's absence) the "compromise solution”that appellant continue to absent himself from the courtroom during Cindi's testimony, indicate the gravity of the change of circumstance that had just occurred. However, instead of acknowledging the evidence ofthe changed circumstances,the trial court offered the radical "solution" that all parties should agree that appellant should abdicate his statutory and constitutional rights to be present at testimony against him. The problem is that the "solution" was proposed andcarried out by the court, defense counsel and the prosecutor. The critically important person, appellant himself, was not part of the discussion or the agreement. That the trial court proposed and was willing to accept such an irregular "agreement"is indicative ofthe drastic change in circumstancesthat had just occurred. The demonstrable and unrefuted fact that appellant was so overcome by his depressive mental state that he left the courtroom during his wife's testimony, and when in the courtroom could only sit there and cry, together with counsel's and Dr. Weiss's report, show a dramatic change in circumstances, akin to the facts in People v. Kaplan (2007) 149 Cal.App.4th 372. Kaplan held that a second competency hearing was mandated where a report showedthat the defendant, although previously 110 found competent, was no longer ableto assist in the defense because of changes in his medications. (Id. at 384.) The sameresult is required here. (See Marks, 31 Cal.4th at 220-21 [noerrorin trial court's refusal to suspend proceedings for further examination of defendant's competency because of defendant's outbursts during trial where the outbursts proved the defendant's ability to understand andassist counsel rather than the opposite].) Moreover, in addition to appellant's weeping during the guilt trial, he madestatements both in and out of court that showed in dramatic fashion his inability to interact in a rational manner with counselorto assist in his defense. When answering the judge's questions about representing himself, appellant discussedthetrial as if its purpose were to "protect" the life of his children, stated that he would call on God's assistance, and that the only qualification for an expert witness was someone "who doesn't lie. It doesn’t matter who." These statements troubledthetrial court sufficiently to initially deem appellant incompetent to represent himself, and appellant contendsthat such a finding (although later reversed) at least should have raised a reasonable doubt as to appellant's competency. At closing penalty phase argument, appellant yelled out to the prosecution to "leave his kids alone," and at the sentencing hearing appellant ranted on about God and the pain his children were going through. All of these statements were sufficient to raise a reasonable doubtas to appellant's current competency. 11] (See People v. Melissakis (1976) 56 Cal.3d 52,60-61 [the trial court erred by not conducting a second hearing into the defendant's competency where his testimony at trial demonstrated a material changeofcircumstances,i.e., his delusionalstate that could have madeit impossible to fully understand his situation and to assist counsel in presenting a rational defense.) Furthermore, defense counsel made explicit both prior to and after trial that appellant was unable to follow directions, discuss the case, or testify in a relevant manner, anda doctorhad reported the deterioration of appellant's condition since the competency verdict. The United States Supreme Court has repeatedly recognized the importance of considering counsel's judgment about the defendant's state ofmind. (See Cooper, 517 U.S. at 352, fn.1; Medina, 505 U.S. at 450.) The trial court, however, repeated ignored counsel's judgment. The multiple instances in which appellant's statements and conduct showedhis deteriorated mental state, and reports by counsel and Dr. Weiss should haveraised a reasonable doubtin the trial court's mind as to appellant's competency. Instead, the trial court repeatedly insisted that based on its own observations that "nothing had changed” — despite the lack of evidence to support the court's ruling and the ample evidenceto the contrary. The court's ruling was unsupported by the facts and amounted to an abuse of discretion. 112 Although a trial court may appropriately take into account its own observations in determining whether the defendant's mental state has significantly changed during the course oftrial, Lawley, 27 Cal.4th at 136, appellant submits that such observations have to be supported by facts. For example, Lawley upheldthe trial court's refusal to initiate a second competency hearing based on its observations that the defendant had been ably representing himself and had demonstrated no mentalillness in doing so. By contrast, in this case, the trial court mechanically and repeatedly insisted that appellant had been "the same throughout" even though that wasnot correct, as shown above. Thetrial court's failure to hold a second competency hearing requires this Court to reverse appellant's convictions. E. International Jurisprudence Confirms that Any Significant Change in Circumstances Mandates a New Competency Assessment at Any Stage of Trial. The United States Supreme Court has emphasizedthata trial court’s duty to ensure a defendant’s competence continues throughoutthetrial proceedings. (See Drope v. Missouri, 420 U.S.at 181 [Even when a defendantis competent at the commencementofhistrial, a trial court must always bealert to circumstances suggesting a change that would renderthe accused unable to meet the standards of competenceto stand trial”].) Trial courts have therefore been exhorted to remain alert to signs suggesting that a defendant may be impaired, such as odd demeanorin the courtroom, irrational behavior, or past medical evidence ofmental illness, and to take 113 action to protect a defendant’s rights at the time that new questions regarding competencearise. (Id. at 180.) High courts in other commonlaw jurisdictions have been no less insistent on the ongoing need to reconsider a defendant’s competency at any stageofthe trial process. The High Court ofAustralia thus reversed a conviction wherethetrial judge refused to conduct a new competency evaluation near the end ofthetrial, despite evidence that the defendant’s mental state had deteriorated: "although the charge to the jury was almost complete, we do not considerthat the appellant's fitness to be tried became an immaterial consideration.... [I]t was still necessary that the appellant should understand the nature ofthe charges and the proceedings, understand the substantial effect ofthe evidence and follow the courseofthe rest of the proceedings. For example, it could not be said that the appellant wasfit to be tried ifhe were unable to understand the nature ofthe jury's finding and the effect of a conviction. . . . Notwithstanding that the trial was drawing toits close, the possibility remained that the appellant might be called upon to participate in the proceedings to protect his own interests. . . . Consequently, at this late stage ofthe trial, a serious question as to the appellant's fitness to be tried again arose, requiring the determination of a jury." (Kesavarajah v. R [1994], 181 CLR 230, at 246-248 (Austl.).°’ The new evidencethatthe trial court had failed to act on included the defendant’s irrational and irrelevant submissionto the judge; that submission, “coming on top of all the material which had accumulated since [the proceedings 57s Available at http://www.austlii.edu.au/cgi-bin/sinodisp/au/ cases/cth/HCA/1994/4 1 .html?query=titleKesavarajahandR. 114 commenced] relating to the appellant's condition, was enough to indicate that the appellant's unstable psychotic condition might well have become the subject of a ‘flare-up’ or ‘florid outbreak’. . . rendering him unfit to be tried.” (Ibid.) Applying the requirements ofthe Malaysian statute on competency to stand trial, that nation’s High Court ruled: "{T]he inquiry by the court as to the fitness of the accused person ought to be determined forthwith when it comesto the knowledgeofthe court, and ought not to be postponed until after the close of the prosecution’s case.It is the duty ofthe court either at the commencementofthe trial, or at any stage during the course ofthe trial, when the question of fitness to standtrial is raised, to determine that issue immediately." (Public Prosecutor v. Misbah Bin Saat [1997] 3 MLJ 495, p. 504.)°8 A similar provision in Canadian law requires that “[w]here the court has reasonable grounds, at any stage of the proceedings before a verdict is rendered, to believe that the accusedis unfit to standtrial, the court may direct, of its own motion or on application of the accused orthe prosecutor, that the issue of fitness of the accused betried.” (Criminal Code, R.S.C.s. 672.23(1) (1985) (Can.); cf. American Bar Association, ABA Criminal Justice Mental Health Standards (1989), Standard 7-4.4 (a) [‘Whenever, at any stage ofthe proceedings, a good faith doubtis raised asto the defendant's competenceto stand trial, the court should order an evaluation 38 Quoted in ICTY, Prosecutor v. Pavle Strugar (Appeal Judgment), IT-01-42-A (17 July 2008), para. 34, n. 90. 115 and conduct a hearing into the competence ofthe defendantto stand trial.”}.) In short, unless the defendant’s submissionsin support ofhis inability to stand trial “are frivolous or manifestly without merit, the immediateresolution by the [court] of any question offitness would appear to be essential... . Correspondingly, the prejudice to the accused resulting from continuing the trial while he or she is unfit to stand would amountto a miscarriage ofjustice.” (Strugar Judgment, at para. 34; emphasis added). Because Strugar has been widely followed by other courts, “it may be viewed as the seminal decision on theissue offitness before international tribunals.” (Phillip L. Weiner, Fitness Hearings in War Crimes Cases: From Nuremberg to the Hague, 30 B.C. Int'l & Comp.L. Rev. 185, 197 (2007).) A wide range of factors may constitute a change of circumstances requiring a new competency determination, including the defendant’s conduct and demeanor during court proceedings: "In reviewing the facts bearing on a defendant's competence to standtrial, a court may considerits observations ofthe defendant's demeanor and behavior in the courtroom,his interaction with defense counsel, reports ofpsychiatric examinations, as well as testimony by psychiatric witnesses and lay testimony concerning the defendant's conduct and mental condition. Each appearance ofthe Defendant before the Court has been marked by eccentric,irrational and, at times, disruptive behavior on his part . . . . It was clear to this Court that in large part the Defendant had no meaningful 116 appreciation for what was transpiring in court and no understanding of the nature and object of the proceedings." (Nahak Decision, at paras. 120, 141.) Reports by mental health experts are another significant factor for judicial consideration, particularly when they contain information bearing on the defendant’s “relevant capacities at the time oftrial and not merely medical diagnoses of his mental or somatic disorders”. (Strugar Judgment, at para. 59.) Accordingly, expert opinions “that are relevant to material issues should be given due consideration,” Nahak Judgmentat para. 120, although a diagnosis of a specific mental disorder“is not a prerequisite for finding a person unfit for trial.” (id. at para. 145.) Thesignificance given in international jurisprudence to properly- focused competency evaluations by mental health experts supports the data from the United States. In a recent study of 192 cases containing judicial findings on competency,“the overall level of agreement between the judicial finding and the psychiatrist’s finding was 92 percent. In cases wherethe judicial finding was “not competent” the psychiatrist and the ° See also R v. Miller [No. 2], at para. 39 [accepting expert evidence providing an “assessmentofthe accused’s capacities” to be “convincing as to the accused’s true lack of comprehension concerning the charge”; Kesavarajah v.R,at para. 34 [faulting the trial court for failing to give weight to an expert’s assessmentthat “the appellant was psychotic, that his condition was unstable...and that this was a matter ofconcern because he might become unfit in the near future within the timeframeofthe trial”’]. 117 court agreed 94 percent ofthe time.”™ Evidence of a psychotic disorder was highly influential, in that “62 percent ofpersons receiving a diagnosis with psychosis were deemed not competent while only 37 percent ofnon- »6! This is not anpsychotic defendants were deemedto be not competent. extreme finding: a recent analytical review of 68 studies of competency determinations spanning the past four decades determined that “defendants diagnosed with a Psychotic Disorder were approximately eight times more likely to be found incompetent than defendants without a Psychotic Disorder diagnosis... .” (GianniPirelli et. al., A Meta-Analytic Review of Competency to Stand Trial Research, 17 Psychology, Public Policy, and Law 1 (2011).) 1. A defendant's capacity to carry out basic daily tasks or to acquiesce to defense counsel's decisions is insufficient to establish competency. In its decision to deny a re-evaluation of competency followingtrial, the trial court placed great weight on appellant’s recorded ability to converse with his family membersprior to trial. (16RT 3426-28.) International jurisprudence supports the conclusion that the trial court erred, in this instance by confusing the defendant’s capacity many monthsearlier 60 James J. Adams, MD, Competency To Stand Trial Evaluations In New Hampshire: Who is evaluated? What are the findings? New Hampshire Bar Journal (Winter 2006), posted at http://www.nhbar.org/publications/display-journal-issue.asp?id=3 19. 61 Ibid. 118 to conduct rational conversations with family memberswith the entirely different capacity to participate meaningfully in his own defense. Confronting a similar situation, the Nahak Court concluded: "The test of competence to lead one's daily life without aid or interference is different from the test of competence to stand trial. The conclusion that a particular defendant can function at a basic level day to day does not address his capacity to understand the charges against him, to understand the nature and to object of court proceedings or to consult with his attorney andto assist in the preparation ofhis defense, Consequently, it is not possible to substitute one form of competence for the other.” (Nahak Judgment, at para. 134.) Thetrial court also denied appellant’s request to re-open the competency proceedings based ona beliefthat defense counsel did everything else competent counsel would do when deciding whether he should testify and that consequently, appellant was not deprived of his Fifth Amendmentright to testify. (16RT 3426-28.) Once again, however, Nahak is instructive: "Even the minimum standard of competence requires that a defendant be able to cooperate with counsel, to inform his attorney concerning the facts of his case andto assist in the preparation ofhis own defense. Absent the capacity to make rational decisionsat trial, a defendant whois simply yielding to the processis likely to do nothing more than accept the decisions of counsel as being the easiest available alternative Moreover, the mere fact that a defendant has the theoretical ability to say yes or no to his attorney does not mean that he has the capacity to makeintelligent decisions concerning his own defense. Accordingly, a lawyer's presencein a case, 119 even whereheor she servesthe best interests of the client, is not a substitute for a defendant being ableto instructhis counsel and to actively assist in his own defense. A defendant, who is unable to do more than agree with his attorney because he does not have the capacity to do otherwise, cannot be described as competent, even though represented by counsel." (Nahak Judgment, at paras. 131-132.) The Supreme Court of South Australia reached the same conclusion, accepting evidence that "It]he accused is capable of exercising a choice as to whether to give evidence by saying yes or no. However,he doesnot have the capacity to grasp any ofthe rationale behind making such a decision. The accused would be likely to follow the advice ofhis solicitor because he is suggestible and it would be the easiest option for him." (R.v. Miller (No 2) [2000] SASC 152,at para. 30.) 2. A failure to ensure competency underminesthe integrity of the criminal justice process. The Nahak Court paid special attention to the wider implications of an inadequate or inaccurate determination of competency: "Finally, there is another rationale supporting the need to ensure that a defendant is competentto stand trial. This consideration goes to the integrity ofthe trial itself and the purposes that such a proceeding serves. A trial is not only the defendant's day in court; it is also the occasion upon which society applies its laws to one of its members. In that context, not only is the defendant entitled to a fair trial, but so too is society, which must be assured that the processit uses to try an accused comports with standards of fairness and accuracy. In circumstances where a defendant cannot comprehend the nature of the proceedings against him, cannotrationally consult with his attorney or cannotassist in the preparation of his defense, the results of the trial are unlikely to be either fair or accurate. Society has an interest in ensuring that the 120 conviction of a defendant is not the result of his helplessness at trial." (Nahak Judgment, para. 48.) Finally, the incarceration of a defendant who was not competent prior to or during trial profoundly undermines the principles of rehabilitation, deterrence and retribution on which the State’s powerto punish must ultimately rest: "Moreover, in the event a defendantin those circumstances were to be convicted, his inability to understand the proceedings would undermine any sentence that might be imposed, as underlying sentencing policies such as rehabilitation or retribution would not likely achieve their purpose in his ease. Consequently, there is a social value associated with ensuring a defendant's competence to stand trial that goes beyond the personalinterests ofthe defendant himself." (Ibid.) International law thus bolsters appellant's claim based on state and federal constitutional law that the trial court erred in failing to reinstitute competency proceedings. F, Conclusion. The trial court's refusal to reinstitute competency proceedings despite the wealth of evidence of a substantial change in circumstances deprived appellant of his federal due process rights and mandates reversal of his convictions. / / 121 ARGUMENT- GUILT, SANITY AND PENALTY TRIAL Wl. APPELLANT'S ABSENCE FROM EVIDENTIARY PORTIONS OF THE GUILT PHASEOF HIS TRIAL, WITHOUT VALID WAIVERSOF HIS RIGHT TO BE PRESENT, VIOLATED HIS STATUTORY AND CONSTITUTIONAL RIGHTS UNDER THE FIFTH, SIXTH AND FOURTEENTH AMENDMENTS TO PRESENCE AND DUE PROCESS A. SummaryArgument. Appellant maintains that he was incompetent throughoutall phases of the trial and sentencing, and was thus also incompetent to waivehis right to presence. Assuming arguendo,this Court rejects appellant's arguments as to competency, appellant contends that his absence from evidentiary portionsofthe trial, without an informed and express personal waiver of his right to presence, requires reversal of his convictions. The repeated purported "waivers" of his presence, by defense counsel and the prosecutor, and "suggestions" by the trial court that appellant's presence be waived, amounted to a de facto recognition by the prosecutor, defense counsel, and thetrial court, that appellant was not competent. Appellant has statutory and constitutional rights to be present at every critical stage ofthe trial. Although People v. Davis (2005) 36 Cal.4th 510, 531 held that a capital defendant can personally waivehis right to presence, as long as his waiver is voluntary, knowing and intelligent under the standard set forth in Johnson v. Zerbst (1938) 304 U.S. 458, 464, appellant did not expressly waivehis statutory or federal constitutional 122 rights to presenceat histrial. B. Summary of Relevant Facts. Appellant contends that his absence during evidentiary portions of the guilt trial, based on purported waiversofhis right to presence by defense counsel, some madeafter the fact, amount to federal constitutional error. In this summary, appellant also chronicles numerous "waivers" by defense counsel (and even the prosecutor)” of appellant's right to be present at other non-evidentiary proceedings in the guilt, sanity and penalty phasesofthetrial, in order to show the repeated, cursory and almost automatic nature of the purported waivers. The numberof "waivers" of appellant's presence, and the manner in which they were obtained, showthatall the trial players, including the court itself, did not believe appellant was currently competent. As shown below, actions speak louder than words. 1. Guilt trial. On October 14, 2005 (during jury selection for guilt trial) the trial court suggested litigating the jury questionnaire outside of appellant's presence. After stating that appellant was not competentto waive hisright to presence himself, counsel waived his presence on his behalf. (SRT 928- % The prosecutorhadneithera right to appellant's presence nor authority to waive his presence. The fact that the prosecutor agreed to "waive" appellant's presence is an indication that the prosecution doubted appellant's competence. 123 30.) In an argumentas to appellant's incompetency made in chambers, counsel again waived his presence. (SRT 941-44.)° Back in open court, with appellant present, defense counsel said that he "didn't have any problem"with appellant not being present for discussions on the jury questionnaire, but he was "not sure that [he could] waive his presence on his behalf. . . based on [their] position, he's not competentto do the waive[r] himself." (SRT 946.) After a short discussion with counsel, and on-the-record prompting by counsel ("so you can spend more time with Dr. French") appellant agreed (by stating "yes") to waive his presence for further proceedings. (SRT 946-47.) Appellant was excused andthe jury questionnaire was discussed in his absence. (SRT 948-965.) On October 18, 2005, the first day oftrial, appellant was not dressed properly. There wasa short (one-page) proceeding regarding a motion that would be addressedafter jury selection. Defense counsel waived appellant's presence for this discussion, after the fact; appellant then appeared and jury selection proceedings began. (6RT 870-1 to 871-1.) On November1, 2005, the day testimony began, Cindi Martinez testified about the 911 call she made. When the prosecutor said she plannedto play the tape recording, defense counsel requested that the tape be played after Cindi had finished testifying as they had stipulated to her 63 The in camera proceedings at RT 941-44 on October 14, 2005 were sealed. This Court granted appellant's Motion to Unseal these pages and made them part ofthe record available to respondent. 124 voice and the contents ofthe tape. Defense counsel was "quite concerned aboutthe disability" of appellant, who was sobbing heavily in the courtroom. (See [ORT 1891-92, 1947.) Although the prosecutor agreed to the procedure, Cindi wanted to remain in court. Counsel then asked if appellant could be excused. The court asked appellant, "Do you waive your presence...?" The reporter transcribed "yeah" for appellant and defense counsel reported, "He said softly yes." The tape was then played in appellant's absence. (ORT 1886-90.) After the tape was played, defense counsel asked to go into chambers without the prosecutor, and "waived Mr. Mendoza's presencefor that." Counsel reported that appellant did not want to be present while the tape was beingplayed. The court suggested as a “compromise”that appellant absent himself during Cindi's testimony and that he could possibly return to court after Cindi's testimony for other "drier" testimony. (1ORT 1892-93.)™ Appellant wasnot presentfor this agreement to "waive" his presence. Back in open court, the prosecutor said she was "okay" with appellant "waiving his presence," and the trial court told the jury that appellant had elected to continue his absence for the duration of the testimony ofat least "this next witness,” i.e., Cindi. (ORT 1894-95.) 4 The in camera proceedings at RT 1892-93 on November3, 2005 were sealed. This Court granted appellant's Motion to Unsealthese pages and made them part ofthe record available to respondent. 125 However,appellant was not returned to the courtroom after Cindi's 911 tape testimony for the remainder of Cindi's testimony. Cinditestified in his absence. (1ORT 1895-1928.) The next witness, ballistics expert James Hamiel, also testified in appellant's absence. (ORT 1928-1944.) In chambers after Hamiel's testimony, defense attorney said that"it was decided that [appellant] was not in very good shape[to stay for Cindi's testimony]" and the prosecutor noted appellant did not return for Hamiel's testimony. Defense counsel said, "We continue our waiverofour client's presence for the ballistics evidence that was put on here late this afternoon." (10RT 1947.) However, there was no personal waiver — either contemporaneousor after-the-fact -- by appellant of his presence for Cindi's testimony apart from the 911 tape or for Mr. Hamiel's testimony. On November9, 2005, defense counsel waived appellant's presence for a discussion on the assault weaponjury instruction. The prosecutor agreed that the enhancementwasnot charged(orat least not correctly) and the trial court struck it. (11RT 2164-66.) 2. Sanity trial. On November 15, 2005, defense counsel waived appellant's presence for a "briefpretrial matter" (discussion of a specially requested jury instruction, discovery matters, and a defense request for an Evidence Code section 402 hearing). (12RT 2220-23.) On November16, 2005, defense counsel again waived appellant's presence at a discussion in chambers 126 regarding a letter in which juror numbernine asked to be released from service because of marital problems. Counsel stipulated to the juror's excusal and he wasreplaced with an alternate juror. (12RT 2361-64.) Later that day, counsel waived appellant's presence for another conference in chambersat which the parties addressed the prosecution's objection to Defense Exhibit M [a chart prepared by defense} that the trial court ruled was admissible unless contrary authority was provided. (12RT 2441-43.) The following day, November 17, 2005, defense counsel and the prosecutor® waived the defendant's presence for their discussions on the revised Exhibit M and after discussion the court ruled that the chart could be used but was not admissible in evidence. They also discussed the existence of reports by jail staff regarding appellant's auditory hallucinations. (12RT 2489-95.) On November 18, 2005, outside the presence ofthe jury, the parties discussed upcoming witnesses. Defense counsel waived appellant's presence. (13RT 2662.) 3. Penalty trial. On December6, 2005 (first day of testimony at penalty trial) defense counsel "waived appellant's presence" and "acknowledged his absence" during discussion outside the presence ofthe jury regarding photos the 65 As noted above,in fn. 62, p. 123, the prosecutor has no authority to "waive" the defendant's presence. That she did soin this case suggests that she did not consider appellant competent. 127 prosecutor intended to introduce. Defense counsel agreed to the introduction offive selected photos. (15RT 3043-44.) On December7, defense counsel waived appellant's presence at beginning ofthe day during discussion ofwitness scheduling and co-counsel's absence to attend his father's surgery. Defense counsel also reported that one ofthe "regular deputy attorneys" said there was a loud conversation from someone she thought was a deputy (but notthe regular bailiff or Jerry Waymire) about the death penalty and the victimsnot getting a chance: this was outside the presence ofthe jury but counsel wanted to make sureit didn't happen again. The court said "alright" and jury and appellant were then broughtin. (15RT 3102-04.) On December13, 2005, defense counsel waived appellant's presence at the beginningofthe day for proceedings outside the presenceofthe jury in which thetrial court overruled the prosecutor's objection to testimony by Vivian Sweatman, deferred ruling on the prosecutor's objection to letters from appellant's sons, and limited the numberofphotos of appellant's sons that the defense could introduce. (15RT 3147-51.) On December14, 2005, after the jury was instructed, appellant and the jury left the courtroom. (15RT 3335.) Defense counsel then objected to the prosecutor having the magazine in the gun during argument; the prosecutor eventually agreed not to touch or wave the gun around but would leave it on the table. The jury and appellant returned to the 128 courtroom and defense counsel said they "retroactively" waived appellant's presence for the prior proceeding. (15 RT 3340.) C. Appellant Did Not Waive His Statutory And Constitutional Rights To Be Present During the Taking ofTestimony. Underthe Sixth Amendmentright of confrontation and the Fourteenth Amendmentright to due process, a criminal defendant has the right to be present at every critical stage ofthe trial. (llinoisv. (1970) 397 U.S. 337, 338.) Although rooted in the Confrontation Clause, the right is protected by the Due Process Clause in somesituations when a witness is not actually being confronted by a witness, if his presence has somereasonably substantial relation to his opportunity to defend. (United States v. Gagnon (1985) 470 U.S. 522, 526.) The right to presence is also protected under the California Constitution,art. I, section 15, and Penal Code sections 977 [requiring a felony defendant to be present during taking of evidence unless hesigns a written waiver] and 1043 [permitting voluntary absence for a non-capital felony defendant, and also excepting removal for disruptive behavior]. The latter two statutes, read together, permit a defendant to be absent under only two conditions, neither ofwhich applies here: when the defendantis removed for disruptive behavior undersection 1043, subd. (b)(1); or when the defendant voluntarily waives his right under section 977, subd. (b)(1). However, the voluntary waiver exception of section 977 does not permit a 129 defendantto be absent during the taking of evidence, and the exception in section 1043 does not apply to capital defendants. (People v. Young (2005) 34 Cal.4th 1149, 1214.) This Court has interpreted these statutes as providing that while a trial cannot be held despite voluntary absence by a capital defendant, the capital defendant may waivehis presenceatleast as to the proceedings not specifically listed in section 977, subd.(b) [mandating the defendant's presence at arraignment, preliminary hearing, during the taking of evidence, and sentencing]. (See e.g., People v. Edwards (1991) 54 Cal.3d 787, 811 - [no error where thetrial court acceded to the defendant's wish to absent himself from jury selection]; People v. Holt (1997) 15 Cal.4th 619, 706-08 [neither the statutory nor constitutional right to presence extended to in- chambers or bench discussions outside the presence ofthe jury]; People v. Rogers (2006) 39 Cal 4th 826, 855-56 [no error where capital defendant wasabsent during unreported in chambers conferences regarding juror hardship excusals]; People v. Kelly (2007) 42 Cal.4th 763, 781-82 [legal matters discussed]; People v. Rundle (2008) 43 Cal.4th 76, 133-37, 178° [finding statutory error where the defendant wasabsent during testimony even though he had made a voluntary and informed waiverofhis right to presence; but no error where the defendant was absent from in camera 66 Overruled in part on other groundsin People v. Doolin, 45 Cal.4th a 421, fn. 22. 130 hearings regarding a juror's alleged misconduct]; Castaneda (2011) 51 Cal.4th 1292, 1342-43 [defendant had norightto be present for discussion ofpenalty phase jury instructions]; Blacksher (2011) 52 Cal.4th 769, 800 [no error where the defendant was absent from discussions on jury selection and jury instructions].) However, section 977 requires the capital defendant's presence at the taking ofevidence and the constitutional provisions require the capital defendant's presence at proceedings where his presence has some reasonably substantial relation to his opportunity to defend. People v. Young, 34 Cal.4th at 1214 found error where the trial court permitted a non-disruptive capital defendant to absent himself during the taking of penalty phase evidence, even though the defendant had personally waived his presence after having informed counsel that he would just as soon not hear the testimony of certain witnesses. People v. Davis (2006) 36 Cal.4th 510, 531-32 found federal constitutional error where defense counsel purported to waive the defendant's presenceata pretrial hearing during whichthe contents ofjailhouse tape recordings were discussed and the admission of excerpts ofthose recordings were agreed upon. Davis observedthat this Court had not addressed the question whether defense counsel could waive the defendant's presence for him although some federal courts had allowed waiver by counsel where there was evidence that the defendantconsented, and that he understood the right he was waiving 131 and the consequences thereof. (Id. at 532.) Following the rationale of the federal case law, Davis held that neither the defendant nor counsel on his supposed behalfhad validly waived the right to presence, where the record showed only that counsel represented to the court that he had discussed the hearing with the defendant, and that the defendant would waivehis presence: there was no evidence that defense counsel informed the defendantofhis right to presence, or that the defendant understoodthat by absenting himself he would be unable to contribute to the discussion ofthe recordings. (Ibid.) Under these precedents, the taking of testimony by Cindi Martinez and James Hamiel, in appellant's absence, was likewise error, and deprived appellantofhis statutory rights and his Sixth and Fourteenth Amendment rights to due process and confrontation. As to testimony by Cindi Martinez, the record showsthat appellant did not make a personal waiver of his presence for any of Cindi's testimony exceptthat relating to the 911 tape. Appellant left the courtroom and testimony by Cindi beyond that relating to the 911 tape and by criminalist Hamiel was adduced in his absence. (LORT 1886-90.) Defense counsel's unsworn statement that appellant waived his presence is not a valid substitute for a personal waiver of the constitutional right to be present, which requires, as noted in Davis, evidence that the defendant had been informed ofhis right and understood the consequences 132 of a waiver. A criminal defendant's fundamentalright to be presentattrial and to confront adverse witnesses is a personal right that must be expressly waived and thus cannotbe relinquished by the action or inaction of counsel.*’ People v. Collins (2001) 26 Cal.4th 297, 308,relying on inter alia Johnson v. Zerbst, 304 U.S. at 464-65, explained that in order to protect against the inappropriate incursion on a defendant's exercise or waiver of a fundamental constitutional right, the federal constitution has long been construed as requiring procedural safeguards, such as a personal and express waiver. Thus,it cannot be said that defendant waived his right to be present for Cindi's testimony apart from that concerning the 911 tape. The taking offurther testimony by James Hamiel in appellant's absencealso violated his statutory and federal rights to presence. Appellant made no personal waiver, audible or inaudible, of his right to be present for Hamiel's testimony. Instead, the matter was simply decided by the prosecutor and defense counsel, who agreedthat appellant's previous "waiver" should be continued because appellant was not in "very good shape." Although not a word was heard from appellant during this time, the trial court informed the jury (even though there is nothing in the record to support the claim) that appellant had "elected" to continue his absence for 67 Although it has been held that a defendant can impliedly waive his right to presence, these cases involve disruptive behavior, escape during trial, or failure to return to trial while on bail. (See People v. Concepcion (2008) 45 Cal.4th 77, 81-82 and cases cited therein.) 133 the duration ofthe testimony ofat least "this next witness." (1ORT 1894- 95.) In fact, it was only appellant's counsel who "waived"appellant's presence for the testimony ofHamiel(as they had done for Cindi's testimony) and with respect to Hamiel's testimony, counsel made their "waiver" for appellant only after the fact. (1ORT 1947.) D. The Violation ofAppellant's Statutory and and Constitutional Rights Requires Reversal ofHis Convictions. Because the error is of federal constitutional dimension, review for prejudice should be under the Chapman v. California (1967) 386 U.S. 18 standard, requiring reversal unless the prosecution can showtheerrorto be harmless beyond a reasonable doubt. The error in Young, 34 Cal.4th at 1214, was deemed harmless™ because the jurors were admonished not to speculate about defendant's absence, not to infer anything from it, nor allow it to affect their deliberations in any manner. Young also concludedthat the defendant's absence from the cross-examination of his own expert, regarding 68 Because the defendant in Young was absent for proceedings at penalty phase only, and because the Court found only statutory error (having found that the defendant madea valid waiver ofhis constitutional rights), the Court reviewed for prejudice under the standard set forth in People v. Brown (1988) 46 Cal.3d 432, 447-48,i.e., whether there was a reasonable possibility the error would have affected the penalty phase verdict. 134 defendant's neuropsychological assessment, andthe entire testimony ofhis former schoolteachers, was not likely to alter the penalty verdict.” (Ibid.) Here, the trial court informed the jury only that appellant had "elected" to be absent "at least" for the remainder of Cindi's testimony, and made no announcementat all concerning appellant's absence for Hamiel's testimony. (1ORT 1895.) Thetrial court failed to admonish the jury notto speculate or infer anything from appellant's absence. Consequently, this Court cannot rely on any admonitions as curing the error, as was done in Young.” Appellant's absence during Cindi's and Hamiel's testimony cannot be considered as harmless beyond a reasonable doubt. Cindi testified to her relationship with appellant and his relationship with their children, her relationship with Carmino Chavez, and the weapons, bullet-proof vests, and 69 But see People v. Gutierrez (2003) 29 Cal.4th 1196, 1206-09 [where the defendant refused to leave his cell to be presentattrial, the trial could properly proceed in his absence notwithstanding the requirementof section 977 that the defendant be present when evidence wastaken beforethetrier of fact]. This is akin to the implied waiver through disruptive behavior. See fn. 67, p. 133, above. 70 This Court also held the defendant's absence to be harmlesserror in People v. Davis, 36 Cal.4th 532-33, because the attorneys in that case had access to the jail tapes before the hearing and had ample opportunity to discuss their contents with the defendant and seek his assistance in deciphering them, so that his presence at the hearing would have added little to his attorney's ability to argue the admissibility ofthe tapes. The sameis not true for live witnesses whose testimonyis notstatic as is a tape recording. 135 helmets. Appellant's presence for this testimony would have been extremely helpful in cross-examination of Cindi as appellant was the only person with knowledgerelating to the matterstestified to by Cindi. As to Hamiel, the prosecutor considered the ballistics evidence as "particularly probative" in assisting the jury as to whether the weapons could fire off the number ofrounds within the time frames provided by the eyewitness, thus proving first degree murder. (3CT 752-54.) Defense counsel had objected to the ballistics testimony and renewed those objections during andafterballistics testimony by the detective and Hamiel. Hamieltestified that each ofthe three guns had an "average" trigger pull. (1ORT 1039-42.) Had appellant been present, if he was competent, then he should have been able to assist counsel in formulating questions on cross-examination as to trigger pull, which was relevant to determining the degree of homicide. IV. THE PROSECUTOR ERRED IN CLOSING ARGUMENT AT GUILT PHASE BY REFERRING TO FACTS NOTIN EVIDENCE AND VOUCHING, THUS VIOLATING APPELLANT'S STATE AND FEDERAL CONSTITUTIONAL RIGHTS TO CONFRONTATION, DUE PROCESS AND A FAIR TRIAL A. Introduction. The prosecutor argued to the jury in closing argumentat guilt phase that the facts in this case were "like a shooting gallery .. . unlike so many other murder cases where there's an argument." The trial court overruled 136 defense counsel's "lack of foundation" objection. (11RT 2178.)”’ The prosecutor then elaborated, asking the jurors to envision a case in which there was an argument and tempers flared and a gun wasfired and the killer said, "I thought he had a gun. Well, I was just trying to scare him. Well, I didn't know the gun was loaded." The prosecutor contrasted those cases as presenting a question asto intent to kill or malice. (11RT 2178-79.) The prosecutor also argued that although appellant had "some [mental] problems," the problems were not sufficient to reduce his culpability from first degree to second degree murder becausenokilleris "all right in his head." (11RT 2200.) Appellant contends that these remarks constituted prosecutorial error”in that they referred to matters not in evidence, and amounted to vouching for the strength of the prosecution's case, rendering the guilttrial fundamentally unfair in violation ofboth state law and appellant's federal rights to confrontation and due process. m Although defense counsel did not object to this further argument,his initial objection had been overruled, and further objection would have been futile. A defendant will be excused from the necessity ofeither a timely objection and/or a request for admonitionifeither would be futile. (People v. Arias (1996) 13 Cal. 4th 92, 159.) 72 People v. Hill, 17 Cal.4th at 822-23 & fn. 1 explained that prosecutorial "misconduct" is a misnomer; prosecutorialerror is the more apt description. Bad faith is not a prerequisite for gaining appellate relief based on the prosecutor's actions because the injury to the defendant occurs whether the conduct was committed inadvertently or intentionally. 137 B. The Prosecutor Erred by ArguingMatters Outside The Evidence and Suggesting to the Jury that Appellant's Case Was Worse than Other Murders Because the Shootings Were Not Preceded by an Argument, and by Suggesting that the Jury Need Not Consider Appellant's Mental State Because All Murderers Have Something Wrong WithThem. A prosecutor's conduct violates the federal constitution when it so infects the trial with unfairness as to deny the defendant due process. (Donnelly v. DeChristoforo (1974) 416 U.S. 637, 642-43; People v. Hill, 17 Cal.4th at 819.) Conductby a prosecutor that does not render a criminal trial fundamentally unfair nonetheless violates state law ifit involves the use of deceptive or reprehensible methods to attempt to persuadethe jury. (Ibid.) Although a prosecutoris given wide latitude during argument, proper argument must be a fair comment on the evidence, which can include reasonable inferences, or deductions to be drawn therefrom; the prosecutor mayalso refer to matters not in evidence if they are common knowledgeor are illustrations drawn from common experience, history or literature.’? (People v. Wharton (1991) 53 Cal.3d 522, 567-68.) However, when the prosecutor suggests that information not presented to the jury supports his case, the commentcrossestheline into 8 Nonetheless, this Court has warned that prosecutors should generally refrain from comparing defendantto historic or fictional villains, especially when wholly inappropriate or unlinked to the evidence. (People v. Jones (1997) 15 Cal.4th 119, 180.) 138 impermissible vouching for the strength of its case. (Peoplev. (1997) 16 Cal.4th 153, 256; Hill, 17 Cal.4th at 828 [prosecutorial statements of facts not in evidence "makethe prosecutor his own witness — offering unsworn testimony not subject to cross-examination"].) A prosecutor may not suggest the existence of "'facts'" outside ofthe record by arguing matters not in evidence. (People v. Benson (1990) 52 Cal.3d 754, 794-95.) United States v. Kerr (9th Cir. 1992) 981 F.2d 1050, 1053 explained that a prosecutor "has no businesstelling the jury his individual impressions of the evidence. Becauseheis the sovereign's representative, the jury may be misled into thinking his conclusions have been validated by the government's investigatory apparatus." Yet this is precisely what happened here. The challenged remarks are not "fair comment" on the evidence. Obviously, there was no evidence in this case as to other homicide cases in which an argument preceded or provoked the killing, and there was no evidence as to the mental state of otherkillers — such evidence would have been excluded as completely irrelevant to appellant's individual culpability. Nonetheless, the prosecutor injected his own opinion and impressions of appellant's culpability compared to "other killers" and "other murder cases" in an attempt to persuade the jury that appellant's mental state and provocation defenses should be rejected in favor of a first degree murderverdict. 139 The prosecutor's remarks were not based on "common knowledge" or "common experience,history orliterature." The comparison wasnotto Hitler, or Charles Manson, or the Menendez brothers, cases which could be considered common knowledge, and reference to which might have been permissible. (Wharton, 53 Cal.3d at 567-68; see e.g. People v. Jones, 15 Cal.4th at 180 [proper for the prosecutor to use well-known examples of irrational murdersto illustrate a point]; People v. Jablonski (2006) 37 Cal.4th 774, 836-37 [accord].) Rather, the prosecutor's reference was to "other killers" and "other murders" in general — information the jury would understand as being within the prosecutor's professional experience and knowledge(but not their own) — and thus both highly persuasive to the jury and prejudicial to appellant. C. The Prosecutorial Error Struck at the Heart of the Defense Case and Was ThusPrejudicial. A claim ofprosecutorial error based on prosecutorial argument to the jury is reviewed for prejudice by considering how the statement would, or could, have been understood by a reasonable juror in the context ofthe entire argument. (People v. Dykes (2009) 46 Cal.4th 731, 771-72; United States v. Rudberg (9th Cir. 1997) 122 F.3d 1199, 1205-06.) Here, the error must be deemed prejudicial because a reasonable juror would have understood the improper argument as confirmation by the experienced prosecutorthat appellant should be deemedguilty of first degree murder — 140 not only based on the evidence but also based on the prosecutor's implied personal promises or guarantees that (1) appellant's mental state should be disregarded because "all killers" have something wrong with them, and (2) appellant's culpability should not be reduced because there was no argumentlike in "other murders." (Compare People v. Benson, 52 Cal.3d at 793 [no misconduct exists if a juror would not have understood the statement as something harmful to the defendant].) In short, the error is prejudicial because it went to the heart ofthe case. People v. Herring (1993) 10 Cal.App.4th 1066, 1073-77 reversed a conviction where the prosecutor erred by telling the jury that he represented "victims" while defense counsel represented "murderers and rapists" whom he had to tell what to say: the comment wentto the heart ofthe defense because the main issue in the case was credibility. In this case, the defense evidence of appellant's mental problems and heat ofpassion supported a verdict of second degree murder. (See 11RT 2191-92; 2192-99.) The prosecutor's improper argumenttold the jury that (based on his implied personal knowledge and experience of other killers and other murders) that these defenses should be rejected in favor of a first degree murder verdict. Error striking at the heart of the defense is considered prejudicial. (See e.g., People v. Herring, 10 CalApp.4th at 1077; People v. Lindsey (1988) 205 Cal.App.3d 112, 117; People v. Vargas (1973) 9 Cal.3d 470, 481.) 141 ARGUMENT-- PENALTY TRIAL Vv. APPELLANT'S SENTENCE OF DEATH VIOLATES THE EIGHTH AMENDMENT PROTECTION AGAINST CRUEL AND UNUSUAL PUNISHMENT AND DUE PROCESS BECAUSE APPELLANT WAS SERIOUSLY MENTALLYILL AT THE TIME OF THE OFFENSES AND AT TRIAL A. Introduction and Summary. All the psychiatrists and psychologists who examined appellant agreed that appellant suffered from a major mentalillness. Drs. Stewart and Schaeffer, defense experts, and Drs. Weiss and French, appointed by the court, testified that appellant suffered from major depression with psychotic features. Dr. French, also appointed by the court, testified that appellant suffered from major depression but did not observe any major psychiatric or psychotic symptoms. Appellant had also been prescribed psychiatric medications byjail psychiatric staff. Defense counsel argued that because appellant clearly suffered from a significant mental disease or disorder, the trial court should eliminate the death penalty. (3CT 624.) The issue wasfirst raised priorto trial; and then, pursuantto the court's suggestion, after the sanity phase. (6RT 920-22.) Thus, on December1, 2005, prior to the penalty phase, defense counsel argued thatthe trial court should eliminate or limit the death penalty under evolving standards ofdecency,citing Atkins v. Virginia (2002) 536 U.S. 304 [Eighth Amendmentprohibits the execution of 142 mentally retarded persons] and Simmons (2005) 543 U.S. 551 {Eighth Amendmentprohibits the execution of defendants underthe age of 18 at the timeofthe crime]. Thetrial court ruled that Atkins didn't apply.” (I4RT 2952-54.) Appellant contends that his death sentence violates the Eighth and Fourteenth Amendments and Article 1, section 17 of the California Constitution, for the reasons set forth below. B. The Most Extreme Sentence ofDeath Is Grossly Disproportionate to Appellant's Personal Responsibility And Moral Guilt Because He Was Severely Mentally Il. A capital sentence violates the Eighth Amendment whenit is “grossly out ofproportion to the severity of the crime”or “so totally without penological justification that it results in the gratuitousinfliction of suffering.” (Gregg v. Georgia (1976) 428 U.S. 153, 173, 183.) Determination ofthe proportionality of a capital sentence cannot be based solely upon the magnitude ofharm resulting from the offense. “[F]or purposes of imposing the death penalty ... punishment mustbetailored to [a defendant's] personal responsibility and moral guilt.” (Enmundv. Florida (1982) 458 U.S. 782, 801; see also California v. Brown (1987) 479 U.S. 538, 545 (O'Connor, J. concurring) ["punishment should be directly related ™ The court first denied the motion on the ground that competency had already beenlitigated. (14RT 2950-52.) Defense counsel clarified for the trial court that the Atkins issue was distinct from the matter of appellant's competency. (14RT 2952.) 143 to the personal culpability of the criminal defendant"].) Thus, in considering claimsthat the Eighth Amendment prohibits imposition of the death penalty on particular categories of convicted murderers, the United States Supreme Court has long focused on the offenders’ moral culpability andtheir degree ofpersonal responsibility for the harm resulting from the offense. Asset out above, Atkins, 536 U.S. at 320 held that the Eighth Amendmentprohibited execution ofmentally retarded persons, because their reduced cognitive functioning rendered them less culpable than the average offender. Roper v. Simmons, 543 U.S.at 553 held that the execution ofjuveniles was also prohibited because their vulnerability and comparative lack of control rendered them less morally reprehensible than an adult offender. Atkins relied upon three rationales in reaching its conclusion: (1) the evolving standards of decency marking the progress of a maturing; (2) the Court's independent determination that execution of such persons would not further the policies of deterrence or retribution; and (3) the fact that the nature of the impairment leads to an unacceptable risk ofwrongful executions. (536 U.S. at 312-20.) The samerationales support a conclusion that the Eighth Amendmentprohibits execution of a severely mentally ill person. / 144 1. Execution of a severely mentally ill person such as appellant does not serve the policies of deterrence or retribution. In Atkins the High Court held that the Eighth Amendmentprohibited imposition of the death penalty on mentally retarded offenders because they were "categorically less culpable than the average criminal." (536 U:S.at 316.) Atkins concluded that because mentally retarded persons have "diminished capacities to understand and process information, to communicate, to abstract from mistakes and learn from experience,to engagein logical reasoning, to control impulses, and to understand the reactions of others," their execution does not "measurably contribute[]" to either the retributive or the deterrence goal of capital punishment." (Id. at 318-20.) Moreover, a moral and civilized society diminishesitselfif its system ofjustice does not afford meaningful recognition and consideration of such limitations. (Id. at 311.) Atkins held that the reduced culpability ofmentally retarded offenders maderetribution less justified; similarly a person of diminished capacity would notlikely be deterred by the threat of execution. Deterrence is also less justified because a person of diminished capacity is not likely to be deterred by the threat of execution. (Id. at 349.) Roper v. Simmonsalso held that neither retribution nor deterrence was an effective rationale for imposition ofthe death penalty on juvenile offenders. (543 U.S. at 571-72.) Appellantcontendsthat the rationale ofAtkins applies equally to a 145 severely mentally ill offender such as himself. Other courts around the country have recognizedthe substantial overlap between mental retardation and other mental impairments with parallel implications. (Bryan v. Mullin qo" Cir. 2003) 335 F.3d 1207, 1237, Henry, J. concurring and dissenting [logic of Atkins is just as applicable to other severe mental deficiencies]; State v. Nelson (N.J. 2002) 803 A.2d 1, Zazzali, J. concurring [history of defendant’s mental iliness and the nexus betweenthat illness and the crime committed should makeher level of culpability insufficient to impose the death penalty for the samereasonsas in Atkins]; People v. Danks (2004) 32 Cal.4th 269, 322, Moreno, J. concurring and dissenting [the diminished capacities ofthe mentally ill are so similar to those with mental retardation, as recognized in Atkins, that they should weigh against the imposition of the death penalty]; Corcoran v. State (Ind. 2002) 774 N.E.2d 495, 502-503, Rucker, J. dissenting [citing Atkins and the evolving standards of decency rationale as a rationale for a categorical prohibition ofthe use ofthe death penalty for the significantly mentally ill].) Underthe rationale ofAtkins and Simmons, a death sentence imposed on a severely mentally ill offender such as appellant is disproportionate to his moral culpability and lacks moral justification under a policy of deterrence or retribution. Mental illness is a medical disease. The record in this case showsthat appellant's mental illness had a neurobiological chemical base and was beyondhis voluntary control, just as is mental 146 retardation (or youthful immaturity). (See 12RT 2478, 14RT 2826-29 [appellant's depression was a bio-chemical condition, i.e., neurotransmitter imbalance]). Thus, appellant should be deemedineligible for the death sentence for the samereasons that a mentally retarded or juvenile offender is ineligible for a death sentence. Unless the death penalty "measurably contributes"to either deterrence or retribution, it is "nothing more than the purposeless and needless infliction ofpain and suffering,” and thus unconstitutional. (Enmundv. Florida, 458 U.S. at 798.) Whether a defendant possesses the "degree of culpability associated with the death penalty," Penry v. Lynaugh (1989) 492 U.S. 302, 338, cannot be resolved by reliance on statutory definitions of crimes. For example, although states are empowered to make an aider and abettor equally culpable with the actor, and to enact felony murderstatutes, minor participation in a felony resulting in death does not amountto sufficient moral culpability to justify imposition of a capital sentence on retributive grounds. (Enmund, 458 U.S. at 798-801.) By the same reasoning, while California can make those whoact without sufficient mental capacity to conform their acts to the law equally culpable as those who are unimpaired, in order to justify imposition of the death sentenceonthefirst group of offenders, the state must be able to explain how the death sentence "measurably contribute[s] to the retributive end of ensuring that the 147 criminalgets his just deserts." (Id. at 801.) Appellant contendsthat imposition ofthe death sentence onthe severely mentally ill cannot contribute to retribution, and amounts only to the "exacting of mindless vengeance.” (Ford v. Wainwright (1986) 477 U.S. 399,410.) 2. Evolving standards of decency. Review of a death sentence under evolving standards of decency should be informed by objective factors, such as legislation, to the extent possible. (Atkins, 536 U.S. at 312.) However, such factors are not dispositive, and the High Court madeit clear that the overarchingrationale ofAtkins was the Court's own "independent evaluation.” "[I]n the end our own judgmentwill be brought to bear on the question ofthe acceptability of the death penalty under the Eighth Amendment.” (Id., quoting Coker Georgia (1977) 433 U.S. 584, 597.) Atkinsalso relied on the professional consensus of organizations with germane expertise that opposed the imposition ofthe death penalty on mentally retarded offenders. (Id. at 316, fn. 21.) The case law cited immediately above in section 1, pp. 145-46, shows an emerging consensus against imposing a death sentence on a severely mentally ill offender. Moreover, studies have shown that over the last decade a large majority of the public agreed that major depression was due to neurobiological causes. (See, Pescocolidoet al., "A Disease Like Any Other? A Decade ofChange in Public Reactions to Schizophrenia, 148 Depression, and Alcohol Dependence," Am.J.Psychiatry (2010) 167: 1321- 1330.) In a Gallup poll conducted in May of2002, approximately 75% of Americans respondedthat they opposed the death penalty when asked whether they favored or opposedit for the "mentally ill." (See American Bar Association Section of Individual Rights and Responsibilities, Death Without Justice: A Guide for Examining the Administration of the Death Penalty in the United States, 63 Ohio St.L.J. 487, 529 (2002).) Thus, as with mental retardation, the mentally ill offender is seen by a large majority of the population as being subject to forces (neurobiological) beyond his voluntary control. Finally, professional psychiatric and psychological organizations oppose imposition of the death penalty on the severely mentally ill for all the reasons discussed herein. (National Alliance on Mental Illness, report released July 6, 2009, entitled Double Tragedies.)” The American Psychological Association in a 2000 resolution called upon each capital punishment jurisdiction in this county not to carry out the death penalty based in part on procedural and other problems with mentally ill defendants until the jurisdiction implemented policies and procedures that could be shown through psychological and social science research to ameliorate % See www.nami.org/doubletragedies 149 those deficiencies.” The American Psychiatric Association describedits members as "uniformly troubled by the execution ofpeople whose offenses were linked to serious mental disorders or whose mental disorders prevented a fair adjudication, and identified specific circumstances under which a severe mentaldisorderat the time ofthe offense should preclude a death sentence, including the situation in whichat the time of the offense, the offender had a severe mental disorder that significantly impaired his capacity to appreciate the nature, consequencesor wrongfulness of his conduct, to exercise rational judgmentin relation to his conduct, or to conform his conduct to the requirements ofthe law — a standard broader than that encompassedby the law in California regarding sanity and mitigation based on extreme mental or emotional disturbance.” Theyear after the decision in Atkins, the American Bar Association (ABA)Section ofIndividual Rights and Responsibilities (IRR) established a Task Force on Mental Disability and the Death Penalty, comprised of 7 See ™ Amnesty International's Report of January 2006 quoted the former president ofAmerican Psychiatric Association whosaid that "the mentally ill suffer from many ofthe same limitations that [as stated in Justice Stevens’ opinion in Atkins] 'do not warrant an exemption from criminal sanctions, but they do diminish their personal culpability.'" www.amnesty.org/en/library/asset/AMRS5 1/003/2006, p. 10, fn. 23, quoting Alan A. Stone, M.D., Supreme Court decision raises ethical questions for psychiatry. Psychiatric Times, Vol. XIX; Issue 9, September 2002. 150 lawyers, mental health practitioners and academics, to consider Atkins might apply to people with other types of impaired mental conditions. After two years of deliberations, the ABA adoptedthe task force recommendation and resolution — the sameas that previously adopted by both the American Psychological Association and the American Psychiatric Association — on the application of capital punishmentto severely mentally ill offenders.’> The ABA believes that these recommendations, which previously had been adopted by both the American Psychological Association and the American Psychiatric Association, should be adopted by all capital jurisdictions. (Tabak, Ronald J., A More Rational Approach to_a DisturbingSubject --_ Mental Disability and Capital Punishment, 25 St. Louis U.Pub.L.Rev. 283 (2006).) Finally, the United States Supreme Court has deemed the laws of other countries and international authorities as instructive for interpreting the Eighth Amendment's prohibition of cruel and unusual punishments. (See e.g., Roper v. Simmons 543 U.S. at 576.) The execution ofthose with severe mentalillness is prohibited by international law, and by virtually every country in the world. (See U.N. Safeguards Guaranteeing Protection of the Rights of Those Facing the Death Penalty (1984); the U.N. Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions (1997) [calling for governmentsthat continue to use the death penalty against 78 See 30 Mental & Physical Disability L. Rep. 668 (Sept—Oct. 2006). 151 minors and the mentally ill to bring their legislation into conformity with international legal standards]; U.N. Commission ofHuman Rights (2000) [urging all states with a death penalty not to impose it on any person suffering from a mental disorder].) 3. Execution ofthe mentally ill: heightened risks of unjustified executions. Atkins cited the enhancedrisk faced by the mentally retarded "that the death penalty will be imposed in spite of factors which maycall for a less severe penalty," as a further justification to categorically exclude such defendants from capital sentencingeligibility. (Atkins, 536 U.S. at 320.) A similarly enhancedrisk exists for mentally ill defendants who,like appellant, have a significantly reduced ability to meaningfully assist defense counsel. Appellant suffered both delusions and hallucinations, which (1) reducedhis ability to accurately observe and report to counsel, (2) caused him to mistrust counsel and impairedhis ability to cooperate with counsel. Thus, appellant faced an enhancedrisk of having the death sentence imposed, despite the factors that should have called for a lesser sentence, because he was unable to assist counsel with respect to the accuracy of aggravating factors or the existence ofmitigating factors. Moreover, his mental illness made him unable to conform his conduct to the requirements of courtroom procedure and decorum:he sobbed; he swore; he had outbursts. For these same reasons, his attorneys did not 152 believe he would make a good witness, even though his testimony otherwise could have been helpful. Asnoted in Atkins, appellant's demeanor probably created "an unwarranted impression of lack ofremorse." (id. at 321.) Severe mental illness enhancesthe likelihood that the jury will find aggravation while at the same time increasing the likelihood the jury will reject mitigation, thus creating a heightenedrisk ofunjustified death sentences. (Slobogin, Beyond Atkins: A Symposium on the Implications ofAtkins v. Virginia, 33 N.M._LRev.293 (2006).) 4. This Court's decision in Castaneda is distinguishable on thefacts. Finally, appellant notes that in People v. Castaneda (2011) 51 Cal.4th 1292, this Court rejected the argument that the Eighth Amendment as interpreted in Atkins and Roper v. Simmons should bar imposition ofthe death penalty for a defendant suffering from antisocial personality disorder.” Castaneda held that the defendant had failed to show that antisocial personality order was analogous to mentalretardation (as in ” The DMS-IV defines antisocial personality disorder as "a pervasive pattern of disregard for and violation of the rights of others occurring since age 15 years,” as indicated by three or more ofthe followingtraits: a failure to conform to social norms and lawful behavior, deception, impulsiveness, irritability and aggressiveness, reckless disregard for the safety ofself or others, consistent irresponsibility, or lack of remorse. (See http://en.wikipedia.org/wiki/Antisocial_personality_disorder.) 153 Atkins) or juvenile status (as in Roper v. Simmons) because (1) there was no objective evidence that society viewed as inappropriate the execution of persons with antisocial personality disorder; (2) the expert evidence in the case showedthat persons with antisocial personality disorder were aware of their actions and were able to choose not to commit crimes, so that the disorder did not diminishtheir personal culpability; (3) the justifications of retribution and deterrence were served by application ofthe death penalty to such individuals; and (4) the ability of such individuals to charm and manipulate others enhancedrather than diminished their capacity to avoid wrongful conviction and execution. (Id. at 1345.) None ofthese factors applies to appellant. Whatever the current societal beliefs about antisocial personality disorder, society does not consider execution appropriate for the mentally ill. (Ford v. Wainwright (1986) 477 U.S. 399, 409-10 [the Eighth Amendmentprohibits execution of a person whois insane]; Panetti v. Quarterman (2007) 551 U.S. 930 [remanding for further proceedings to determine if the defendant's mental illness rendered him incompetent to be executed]; see also pp. 145-52, aboveas to evolving standards of decency in the case law andsociety.) Most ofthe expert evidence in this case showed that appellant was unable to appreciate the wrongfulness of his actions because ofhis delusional mental illness: Dr. Stewart and Dr. Schaeffer both testified that 154 appellant's mentalillness was biochemical and that he was unable to appreciate the wrongfulness of his actions. (12RT 2249-53, 2265-70, 2463, 2478.) Dr. Weiss did not consider appellant legally insane buttestified that appellant's delusional thinking caused him to believe his acts were necessary to protect his children. (12RT 23 84-87.)*° Finally, appellant's severe mentalillness did not include the ability to charm anyone. Thus, in contrast to the defendant in Castaneda, execution of a severely mentally ill person such as appellant does not serve the policies of retribution or deterrence. 5. Summary. The evidencein this case showed overwhelmingly that appellant suffered from a genetically induced mental illness, caused by a deregulation ofneurotransmitters in the brain. His illness had a "chemical biological basis." He had been suicidal for the six years preceding the offenses, and had been unable to work or care for himself since the age of 31. (12RT 2243-52.) In other words, he displayed the same social and occupational dysfunction (inability to hold employment, impaired social relationships, isolation) as shown byindividuals suffering mental retardation. Appellant was paranoid and obsessed with protecting his children from what he 80 Dr. Frenchtestified that appellant did know right from wrong at he time of the offenses. (13RT 2621-22.) 155 viewedas corrupting influences. His depression had psychotic and delusionalfeatures (according to the court-appointed psychologist) that led him to feel justified in his actions, which he believed necessary to protect his children. (12RT 2370-73; 2384-87; see also 12RT 2452-58; 2462.) In sum,appellant is a hostage ofhis neurobiological processes as muchas is an immature juvenile or a mentally retarded offender. Just as they cannot choose to have more advanced cognitive functioning, appellant could not, by force of will, choose to disregard the chemical imbalancein his brain that caused him to believe that his actions were necessary to protect his children. Such a person, notwithstanding his crimes,is deserving of less than the most severe punishmentofdeath. VI. IMPOSITION OF THE DEATH PENALTY ON A SEVERELY MENTALLY ILL OFFENDER SUCH AS APPELLANT VIOLATES THE FEDERAL CONSTITUTIONAL EQUAL PROTECTION CLAUSE AND REQUIRES REVERSAL OF APPELLANT'S SENTENCE Asset out immediately above, in Atkins the United States Supreme Court held that mentally retarded offenders were categorically protected from the death penalty under the Eighth Amendment. Roper v. Simmons, 543 U.S. 551 held that juvenile offenders were categorically protected as well. Appellant contends that imposition ofthe death sentence on him despite his disability of severe mental illness, where minors and the mentally retarded are categorically removed from death penalty eligibility, 156 violates the Fourteenth Amendment guarantee of equal protection under the law as well as arbitrary within the meaning ofthe Eighth Amendment. Juveniles, the mentally retarded, and the severely mentally ill are uniformly less culpable than other offenders. Similarly, the goals of deterrence andretribution are less applicable across those three groups. To treat one ofthose three legally indistinguishable groups differently for purposes ofpunishmentviolates the Fourteenth Amendment’s Equal Protection Clause. If the differentiation of a similarly situated group is based on an “irrational prejudice,” it may violate the Equal Protection Clause ofthe Fourteenth Amendment. (City of Cleburne v. Cleburne LivingCenter (1985) 473 U.S. 432, 450:*' see also ABA Manual, p. 5 [the stigma attached to mentalillness is like racism or sexism and is defined as an "irrational prejudice" due to a person's mental disability, based on stereotype, myth and de-individualization that affects both jurisprudence and lawyering practices].) The severely mentally ill are similarly situated to the mentally retarded and juveniles in that they are less culpable and the imposition of the death penalty on them isless likely to promote the goals of deterrence and retribution for the reasonsarticulated by the Court in Atkins and 31 City of Cleburne held that a municipal permit requirement violated equal protection becauseit rested on "an irrational prejudice" ofthe mentally retarded. 157 Simmonsand as discussed in detail above, in Argument V. Atkins considered mentally retarded personsineligible for the death penalty becauseoftheir "diminished capacities to understand and process information... ." (536 US.at 318-20.) A brief description of the symptomssuffered by appellant (addressed above in the Statement of Facts, Sanity Trial, pp. 12-29, and incorporated by reference here) makesit clear that he also had a diminishedability to understand and process information, to communicate, to engage in logical reasoning, to control his impulses, and to understand the reactions of others. If anything, appellant's delusions, paranoia, and impaired thought process represent a greater dysfunction than that experienced by most mildly retarded persons (the only mentally retarded people likely to commit capital crimes) and by virtually any non-mentally ill teenager. (See Slobogin, Beyond Atkins: A Symposium on the Implications ofAtkins v. Virginia, 33 N.M.L.Rev. 293, 304 (2006).) It is true that the California statutory scheme, including sanity proceedings and the mitigating factors at penalty trial, to a certain extent recognize and protect the mentally ill. However, just as juveniles and the mentally retarded have ended up on death row despite mitigating factors, many people who were mentally ill at the time of their crime are sentenced to death. "The insanity defense is rarely successful, even (or especially) in 158 murder cases." (Id. at 305.) Despite that mental impairments are explicitly recognized as potential mitigation in capital sentencing statutes, research suggests that presentation of such evidence often acts as an aggravating factor: sentencing juries and judges apparently focus more on the perceived dangerousnessofthe mentally ill than on their diminished culpability and deterrability. (Ibid.) These facts show an "irrational prejudice" against people with mentalillness that is not justified by any legitimate state interest. Consequently, imposition ofthe death penalty on appellant, whois seriously mentally ill and suffered from a major mentalillness at the time of the offenses, violated his federal constitutional guarantee of equal protection underthe law. Vil. THE PROCESS USED IN CALIFORNIA FOR DEATH QUALIFICATION OF JURIES IS UNCONSTITUTIONAL AND WAS UNCONSTITUTIONAL IN THIS CASE The death-qualification procedure used in California to select juries in capital cases is unconstitutional. As will be demonstrated below, the death-qualification process produces juries which are both more likely to convict and more likely to vote for death and also disproportionately remove women, membersofracial minorities and religious people from juries. Therefore, the use of the death-qualification procedure in California violates the rights of a capital defendant to equal protection and due process as well as the rightto a reliable death penalty adjudication, in derogation of 159 the Fifth, Sixth, Eighth and Fourteenth Amendments ofthe United States Constitution and article I ofthe California Constitution, sections 7,15,16 and 17. Asthe United States Supreme Court has explained: "A ‘death qualified' jury is one from which prospective jurors have been excluded for cause in light of their inability to set aside their views about the death penalty that would prevent or substantially impair the performanceoftheir duties as jurors in accordance with their instructions and oath." (Buchanan v. Kentucky (1987) 483 U.S. 402, 408, fh. 6 [internal citations and quotations omitted).) Ifa juror's ability to perform his or her duties is substantially impaired underthis standard, he or she is subject to dismissal for cause. (People v. Ashmus (1991) 54 Cal. 3d 932, 961-962 citing Wainwright v. Witt (1985) 469 U.S. 412, 424 and Adamsv. Texas (1980) 448 U.S. 38, 45.) This Court has held that the only question that a trial court needs to resolve during the death-qualification process is "whether any prospective juror has such conscientiousorreligious scruples about capital punishment, in the abstract, that his views would prevent or substantially impair the performanceofhis duties as a juror in accordance with his instructions and his oath." (People v. Mattson (1990) 50 Cal. 3d 826, 845.) J / 160 A. Current Empirical Studies Prove That the Death Qualification Process is Unconstitutional. In Hovey v. Superior Court (1980) 28 Cal.3d 1, andv. (1983) 35 Cal.3d 329, this Court began to examine the vast body of research concerning the problems caused by death-qualification procedure. Based onthestatistical evidence presented, this Court concluded that California's death-qualification jury selection process did not violate the Sixth Amendmentright to an impartial guilt phase jury. Similarly, in Lockhart v. McCree (1986) 476 U.S. 162, 165, the United States Supreme rejected a claim that death qualification violated a defendant's Sixth and Fourteenth Amendmentrights to have guilt or innocence determined by an impartial jury selected from a representative cross-section ofthe community. (Id. at 167.) However, the concerns aboutstatistical evidence stated in Hovey and Fields have since been resolved, and new evidenceestablishes that the factual basis on which Lockhart rests is no longer valid, and that this decision wasbased onfaulty science and improperlogic. The questions raised in these cases mustbe reevaluatedin light ofthe new evidence. 1. Thestatistical research since Hovey. Hovey generally accepted the vast research condemningthe death- qualification process, although it found one flaw in thescientific data then available. The "Hovey problem"wasthat the studies presented in that case 161 did not take into accountthe fact that California also excluded automatic death penalty jurors via "life-qualification." (Hovey, 28 Cal.3d at 18-19.) Asset forth immediately below,this problem has been solved, and this Court should now acknowledge that fact. After Hovey, a study was conductedthat specifically addressed the "Hovey problem." (Kadane, Juries Hearing Death Penalty Cases: Statistical Analysis of a Legal Procedure (1984) 78 J. American Statistical Assn. 544.) Thearticle reviewed two studies presented in Hovey, the 1984 Fitzgerald and Ellsworth study and the 1984 Cowan, Thompson, and Ellsworth study. (Id. at 545-546.) The conclusion wasthat excluding the "always or never"group,i.e., the automatic death and automaticlife jurors, results in a "distinct and substantial anti-defense bias" at the guilt phase. (1d.at 551.) Professor Kadane conducted additional research using data unavailable at the time Hovey was decided. (See Kadane, After Hovey: A Note on Taking Account ofthe Automatic Death Penalty Jurors (1984) 8 Law & Human Behavior 115 (hereafter "Kadane, After Hovey").) This study proved that "the procedure of death qualification biases the jury pool against the defense." (Id. at 119.) More recent studies have reached the same result. (See, e.g., Seltzer et al., The Effect ofDeath Qualification on the Propensity ofJurors to Convict: The Maryland Example (1986) 29 How. LJ. 571, 604 [hereafter "Seltzer et al."]; see also Luginbuhl & Middendorf, Death Penalty Beliefs and Jurors' Responses to Aggravating 162 and Mitigating Circumstances in Capital Trials (1988) 12 Law & Human Behavior 263.) A morerecent study updated the past research on death qualification based on numerouschangesin society and the law, including the increase in support for the death penalty and the Supreme Court's decision in Morgan v. Illinois (1992) 504 U.S. 719, which required "life qualification," or the removal ofthe automatic death jurors. (See Haney,et al., "Modern" Death Qualification: New Data on Its Biasing Effects (1994) 18 Law & Human Behavior 619, 619-622 [hereafter "Haney"].) The Haney study was "likely the most detailed statewide survey on Californians' death penalty attitudes ever done." (Id. at 623, 625.) It found that "[d]eath-qualified juries remain significantly different from those thatsit in any other kind of criminal case." (Id. at 631.) Thesestudiesare the type of research that this Court sought in the Hovey opinion,and they establish that death qualification ofjurors serving in capital cases, even when "life qualification" also occurs, violates the Sixth and Fourteenth Amendments and article I, sections 7, 15, 16 and 17 ofthe California Constitution. 2. Thefactual basis ofLockhart is no longer sound. Lockhart has been repeatedly criticized for its analysis of both the data andthe lawrelated to death qualification. (See, e.g., Smith, Due Process Education for the Jury: Overcoming the Bias ofDeath Qualified 163 Juries (1989) 18 Sw. U. L. Rev. 493, 528 [hereafter "Smith"] [the analyses in Lockhart were "characterized by unstated premises, fallacious argumentation and assumptions that are unexplained or undefended"); Thompson, Death Qualification After Wainwright v. WittLockhart McCree (1989) 13 Law & Human Behavior 185, 202 [hereafter "Thompson"]{Lockhart is "poorly reasoned and unconvincing both in its analysis of the social science evidence andits analysis of the legal issue of jury impartiality"]; Byrne, Lockhart v. McCree: Conviction-Proneness and the Constitutionality ofDeath-Qualified Juries (1986) 36 Cath. U. L. Rev. 287, 318 (hereafter "Byrne"] [Lockhart was a "fragmented judicial analysis," representing an "uncommonsituation where the Court allows financial considerations to outweigh an individual's fundamental constitutional right to an impartial and representative jury"].) (See also Moar, Death Qualified Juries in Capital Cases: The Supreme Court's Decision in Lockhart v. McCree (1988) 19 Colum. Hum.Rts. L. Rev.369, 374 [hereafter "Moar" [detailing criticism of the Court's analysis of the scientific data].) Becausethe "constitutional facts" upon which Lockhart was based are no longer correct, the Supreme Court's holding should not be considered controlling under the federal Constitution. (United States v. Carolene Products (1938) 304 U.S. 144, 153.) This Court needs to review the new data and reevaluate this issue. 164 Moreover, Lockhart does not control the issues raised under the California Constitution. (RavenDeukmejian (1990) 52 Cal.3d 336, 352- 354.) This Court should continue the path it began in Hovey and find the death qualification process unconstitutional under the California Constitution. a. Misinterpretation ofthe scientific data. Despite that the studies presented in Lockhart were carried out in a "manner appropriate and acceptable to social or behavioralscientists," the United States Supreme Court categorically dismissed them. (Smith, 18 Sw. U. L. Rev.at p. 537.) When the Supreme Court found a supposed flaw in a study, or a group ofstudies, it dismissed the study or studies "from further consideration, never considering that alternative hypotheses left open by shortcomingsin studies of one type mightbe ruled out by studies of another type." (Thompson, 13 Law & Human Behaviorat 195.) The Court dismissed any study that it deemed less than definitive. (Ibid.) Professor Thompson also observed: "The Court's adamant refusal to acknowledgethe strength of the evidence beforeit casts grave doubts upon its ultimate holding in Lockhart." (Ibid.) The Supreme Court "erredin its rejection of the empirical evidence." In Lockhart, the Supreme Court was presented with over fifteen years of scholarly research on death-qualification procedures, using a "wide variety ofstimuli, subjects, methodologies, and statistical 165 analyses." (Moar, 19 Colum. Hum.Rts.L. Rev.at pp. 386-387.) From both a scientific and a legal perspective, "[g]iven the seriousnessofthe constitutional issues involved [] and the extent and unanimity of the empirical evidence,it is hard to justify [the Court's} superficial analysis and rejection ofthe social science research."(Id. at 387.) The Lockhart decision "ignored the evidence whichindicatesthat a death-qualified jury, composed of individuals with pro-prosecutionattitudes, is more likely to decide against criminal defendants than a typical jury whichsits in all noncapital cases." (Byrne, 36 Cath. U.L. Rev. at p. 315.) In deciding the issue now presented here, the Court should not rely upon the analysis ofthe statistics found in the Lockhart decision. b. Incorrect legal observations. Witherspoonv.Illinois (1968) 391 U.S. 510 hadall but accepted that, once the "fragmentary" scientific data on the effect of death qualification on guilt phase was solidified, the Court would act to protect impartial guilt phase juries. "It seemed only inadequate proofof 'death- qualified' juror bias caused the Court to uphold Witherspoon's guilty verdict." (Smith, 18 Sw.U.L.Rev. at 518.) This Court should follow not the the faulty Lockhart decision butrather the path laid out by Hovey, both in construing and applying the federal and state Constitutions properly. "The Court's holding in Lockhart infers [sic] that the Constitution does not guarantee the capital defendant an ‘impartial jury' in the true meaningofthe 166 phrase, but merely a jury that is capable of imposing the death penalty if requested to do so by the prosecution." (Peters, Constitutional Law: Does "Death Qualification" Spell Death for the Capital Defendant's Constitutional Rightto an Impartial Jury? (1987) 26 Washburn LJ. 382, 395.) This is not the meaning of impartiality, under either the federal or the state Constitutions, discussed in Hovey,noris it the proper one. c. Thescientific evidence. Empirical studies of actual jurors from actual capital cases show that many capital jurors who had been death-qualified under Witt, and "who had decided a real capital defendant's fate, approached their task believing that the death penalty is the only appropriate penalty for many ofthe kinds of murder commonlytried as capital offenses." (Bowers, W. & Foglia, W., Still Singularly Agonizing: The Law's Failure to Purge Arbitrariness from Capital Sentencing (2003) 39 Crim. Law. Bull. 51, 62 [hereafter "Bowers & Foglia"].) In 1990, a group ofresearchers, under the leadership ofProfessor William J. Bowers, and funded by the Law and Social Sciences Program of the National Science Foundation, formed the Capital Jury Project ("CJP"). Oneofits purposes was to generate a comprehensive and detailed understanding ofhow capital jurors actually maketheir life or death decisions. (See Bowers, W., The Capital Jury Project: Rationale, Design, and Preview ofEarly Findings, (1995) 70 Ind. L. J. 1043.) 167 The work ofthe CJP has addressed many ofthe specific problems noted in Lockhart. First, it studied 1201 actual jurors whoparticipated in 354 actual cases. Second, the CJP studied how their decisions were influenced by their peers during jury deliberations. Third,as a result of studying actualjurors, this research data is not "contaminated" by the influence ofthe so-called nullifiers [automatic life jurors] because they wereall excused during the death-qualification process at voir dire. (Rozelle, "The Principled Executioner: Capital Juries! Bias and the Benefits of True Bifurcation" (Fall 2006) 38 Ariz. St. L. J. 769, 784.) The CJP study confirms whatthe earlier studies described in Lockhart showed:the death-qualification process results in juries more prone to convict and to choose the death penalty; that it produced skewedjuries, particularly in the following ways: (1) there are more automatic death penalty jurors; (2) many of these jurors don't understand the nature of mitigation evidence; and (3) such jurors tend to decide prematurely both to convict and to choose the death sentence.(Id. at 785, 787-93.) B. Data Regarding the Impact ofDeath Qualification on Jurors' Race, Gender, and Religion. Lockhart did not address whether death qualification had a negative impact on the racial, gender, and religious composition ofjuries. This Court acknowledged in People v. 168 Fields, that this issue is of constitutional dimension and required more research. Such research is now available, and it compels a finding that the death-qualification process has an adverse effect on the inclusion of important classes ofpeople in capital juries. Numerousstudies have shown that "proportionately more blacks than whites and more women than men are against the death penalty." (Moar, 19 Colum. Hum.Rts. L. Rev. at 386.) Death qualification "tends to eliminate proportionately more blacks than whites and more women than men from capital juries," adversely affecting two distinctive groups under a fair cross-section analysis. (Id. at 388; see also Seltzer et al., 29 How. LJ. at p. 604 [death qualification results in juries that under-represent blacks],; Luginbuhl & Middendorf, 12 Law & Hum. Behav.at 269 [there is a significant correlation between attitudes about the death penalty and the gender, race, age, and educational backgroundsofjurors].) C. Prosecutorial Misuse ofDeath Qualification. Research has shownthat a "prosecutor can increase the chances of getting a conviction by putting the defendant's life at issue." (Thompson, 13 Law & Human Behavior at 199.) Some prosecutors have acknowledged that death qualification skewsthejury and that they use this unconstitutional practice to their advantage in obtaining conviction-prone juries. (See Garvey, The Overproduction ofDeath (2000) 100 Colum. L. 169 Rev. 2030, 2097 & fus.163 and 164 [hereafter "Garvey"]; see also Rosenburg, Deadliest D.A. (1995) N.Y. Times Magazine (July 16, 1995)p. 42 [quoting "various former and current Pennsylvania prosecutors explaining the Philadelphia District Attorney's practice of seeking the death penalty in nearly all murder casesas self-consciously designed to give prosecutors 'a permanent thumbonthe scale’ enabling them to ‘use everything you can' to win,including ... "everyone who's ever prosecuted a murder case wants a death-qualified jury,’ because ofthe ‘perception... that minorities tend to say much moreoften that they are opposed to the death penalty,' so that '[a] lot ofLatinos and blacks will be [stricken from capital juries as a result of] these [death qualification] questions.” Lockhart declined to consider the prosecutorial motives underlying death qualification because the petitioner had not argued that death qualification wasinstituted as a means "for the State to arbitrarily skew the composition of capital-case juries.” (476 U.S. at 176.) But the Lockhart dissent predicted that "[t]he State's mere announcementthat it intends to seek the death penalty if the defendant is found guilty of a capital offense will, under today's decision, give the prosecution license to empanelajury especially likely to return that very verdict." (476 U.S. at 185 [dis. opn of Marshall, J., Brennan, J., & Stevens, J.].) The prosecutor's use of death qualification in this case violated appellant's Sixth, Eighth and Fourteenth Amendmentrights andhis rights 170 underarticle I, sections 7, 15, 16, and 17 of the California Constitution. D. Death Qualification in California Violates the Eighth Amendment. In California, the death-qualification process skewsjuries making them more conviction-prone and morelikely to vote for a death sentence. Non-capital defendants do not face such skewedjuries. This result is unacceptable under the Sixth, Eighth and Fourteenth Amendments ofthe United States Constitution and article I, sections 7,15, 16 and 17 ofthe California Constitution. The Eighth Amendment requires "heightened reliability" in capital cases because "death is different." The penalty of death is qualitatively different from a sentence of imprisonment, howeverlong. (Woodson v. North Carolina (1976) 428 U.S. 280, 305.) Since death qualification results in a jury more likely to choose a death sentence,it cannot survive the "heightenedreliability" requirement mandated by the Eighth Amendment. The Supreme Court has recognized the sameprinciple whenit comesto guilt determinations. In California, instead of the "utmost care" and "heightenedreliability,” capital defendants face juries which are not allowed in any other type of case: capital defendantsare tried by juries at both the guilt and penalty phasesthat are far less "impartial" than juries provided to defendants in any other kind of criminal case. Accordingly, the death-qualification process violates the "heightenedreliability" requirement 171 ofthe Eighth Amendmentbecauseit is utterly "cruel and unusual"to put a human beingontrial for his life while also forcing him to face a jury thatis prone to convict and condemn him to die because many if notall ofthe jurors who would have been opento the defense evidence had been excluded. Since appellant faced such a death-qualified jury, his convictions, the special circumstance finding against him, and his death penalty must be reversed. E. The Death-Qualification Process is Unconstitutional. Evenifthis Court does not condemn death qualification in principle, the process of death qualification in California courts is nevertheless unconstitutional. The Supreme Court did not reach this issue in Lockhart. In Hovey,this Court reviewed the evidence on this issue and generally acceptedit, although the decision only addressed someofthe problems presented by the evidence. In Fields, this Court improperly allowed more specific death-qualification voir dire, which exacerbated the problemsofthe process. "The voir dire phase ofthe trial represents the ‘jurors’ first introduction to the substantive factual and legal issues in a case.' The influence ofthe voir dire process may persist through the whole course of the trial proceedings." (Powers v. Ohio (1991) 499 U.S. 400, 412, quoting Gomez v. United States (1989) 490 U.S. 858, 874.) As detailed in Hovey 172 and in recent studies, death-qualification voir dire persuades jurors to adopt pro-conviction and pro-death views. The result is that potential jurors who do not share such pro-prosecution attitudes on guilt and penalty are removed from the panel. The death qualification in this case influenced the deliberative process and the mindset ofthe jurors concerning their responsibilities and duties. The use of death-qualification voir dire in California violates the Sixth, Eighth and Fourteenth Amendments andarticle I, sections 7,15,16 and 17 ofthe California Constitution. Any verdict reached by a jury chosen in this manner cannot stand since the use of a jury whose views are skewed and biased constitutes a structural error. F. Death Qualification Violates the Right to a Jury Trial. Taylor v. Louisiana (1975) 419 U.S. 522, 530-531 identified three purposes underlying the Sixth Amendmentright to a jury trial, and death qualification defeats all three. First, "the purpose ofajury is to guard against the exercise of arbitrary power--to make available the common sense judgmentofthe community as a hedge against the overzealous or mistaken prosecutor and in preference to the professional or perhaps overconditionedor biased responseofajudge." (Ibid.) Death qualification makes the "commonsense judgment ofthe community" unavailable. The evidence now showsthat a death-qualified jury fails to represent the judgmentofthe excluded community members. Death qualification also 173 removesthe constitutionally required "hedge against the overzealous or mistaken prosecutor" or "biased responseofa judge." (Ibid.) Evidence showsthat prosecutors intentionally use the death qualification processto removepotential jurors so that there is no "hedge" to prevent their overzealousness.(See, e.g., Garvey, 100 Colum.L.Revat 2097 and fn. 163.) The second purposeofthe jury trial is to preserve public confidence. "Community participation in the administration ofthe criminal law, moreover, is not only consistent with our democratic heritage but is also critical to public confidence in the fairness ofthe criminal justice system. (Ibid.) Death qualification fails to preserve confidence in the system and _ discourages community participation. (See, e.g., Moller, Death-Qualified Juries Are the 'Conscience ofthe Community’? L.A. Daily Journal, (May 31, 1988) p. 4, Col. 3 [noting the "Orwellian doublespeak"ofreferring to a death-qualified jury as the "conscience of the community"];"(Smith, supra, 18 Sw. V.L.Rev.at p. 499 ["the irony oftrusting the life or death decision to that segment ofthe population least likely to show mercy is apparent"); Liptak, Facing a Jury of (Some of) One's Peers, New York Times (July 20, 2003), Section 4.) Thethird purposeis to implement the belief that "sharing in the administration ofjustice is a phase of civic responsibility." (Taylorv. Louisiana, 419 U.S. at 532.) The exclusion of a segmentofthe 174 community from jury duty sends a messagethat the administration of justice is not a responsibility shared equally byall citizens. Finally, because the death-qualification process undermines the purposesofthe Sixth Amendmentright to a jury trial, excluding individuals with views against the death penalty from petit juries also violates the fair cross-section requirement and the Equal Protection Clause. "Wethink it obviousthat the concept of "distinctiveness" must be linkedto the [three] purposesoft he fair cross-section requirement." (Lockhart v. McCree, 476 U.S.at 175.) For these reasons, death qualification violates the Sixth and Fourteenth Amendments ofthe United States Constitution as well as article I, sections 7,15,16 and 17 ofthe California Constitution. G. The Prosecutor's Use of Death Qualification via Peremptory Challenges was Unconstitutional. In the instant case, the prosecutor's use ofperemptory challenges to systematically exclude jurors with reservations about capital punishment denied appellant his constitutional rights. After all jurors who declared they could not impose a death sentence were excused, various prospective jurors remained whohadreservations about the death penalty, but who were not excludable for cause under Witherspoon and Witt. These prospective jurors stated that they could vote for the death penalty in an appropriate case. (Gray v. Mississippi (1987) 481 U.S. 648, 667-668.) However, when these jurors were called to the jury box, the 175 prosecutor systematically used a peremptory challenge to exclude those who were hesitant or conflicted about imposition of the death penalty. For example, the prosecutor used a peremptory challengeto strike Gloria Coady from the jury. (QRT 1608.) In voir dire, Ms. Cody stated that she had a "hard time" wrestling with the responsibility of deciding the death penalty but had indicated she was neutral on the merits of it and would be able to impose the death penalty for multiple murder. (7RT 1063.) Similarly, the prosecutor used a peremptory challenge to strike prospective juror Terry Murphy. (ORT 1611.) Mr. Murphysaid in voir dire that he mistakenly stated in his questionnaire that he could not impose the death sentence. Heclarified that, after hearing from the judge, he could vote to impose the death penalty if the evidence warranted it. (7RT 1110, 1150-51.) The prosecutor also used a peremptory challenge to excuse Roberto Mendoza, oneofthe few Hispanics on the panel. (QRT 1612.) Mr. Mendozastated that he was "conflicted" on the death penalty and would have to hear the evidence. Mr. Mendozahadstated both that he could never imposethe death penalty but also that he would impose the death penalty for first degree murder. (9RT 466, 1471.) Asthe above examples demonstrate, the prosecutor's actions in this case denied appellant his federal and state constitutional rights to due 176 process, equal protection, an impartial jury, a jury drawn from a fair cross- section of the community and a reliable determination of guilt and sentence under the Fifth, Sixth, Eighth and Fourteenth Amendments ofthe U.S. Constitution and related provisionsofarticle I, sections 7,15,16 and 17 of the California Constitution. The peremptory exclusion ofthese jurors prejudiced appellant's rights at the guilt phase for the same reasonsas did the "death qualification" ofthe jury. Unlike death qualification done by for-cause challenges, which excludes from the jury only those whom thetrial judge determines would not be able to follow their oath at the penalty phase, the elimination ofthese jurors through peremptory challenge involves the exclusion ofpersons whoseability to follow their oath and instructions at the penalty phaseis unaffected by their reservations about capital punishment. Even assuming their exclusion was harmless at the guilt phase, reversal ofthe death judgmentis required nonetheless. (See, e.g., Gregg v. Georgia, 428 U.S.at 188; Lockett v. Ohio (1988) 438 U.S. 586, 604.) The prosecution "stacked the deck"in favor of death by exercising its peremptory challenges to remove these jurors. The exclusionofthese jurors resulted in a "jury uncommonly willing to condemn a man to die." (Witherspoonv.IHinois, 391 US. at 521, 523.) The prosecutor shares responsibility with the trial judge to preserve a defendant's right to a representative jury and should exercise peremptory 177 challenges only for legitimate purposes. Since the State is forbidden from excusing a class ofjurors for cause based on their death penalty skepticism, those viewsare not a properbasis for a peremptory challenge. The State has nolegitimate interest in the removal ofjurors who can follow their oaths, but who mayalso be skeptical about the death penalty. A jury stripped of the significant community viewpoint that these prospective jurors provide is not ideally suited to the purpose and functioningofa jury in a criminaltrial. (Ballew v. Georgia (1978) 435 U.S. 223, 239-242.) Even if these jurors do not constitute a cognizable class for purposes ofanalysis ofthe Sixth Amendment's representative cross-section ofthe community issue (Lockhart v. McCree, 476 U.S. at 174-77), they constitute a distinct group for purposes of ensuring both thereliability of a capital sentencing decision and the need for the jury to reflect the various views of the wider community. (Witherspoon, 391 U.S. at 519.) In Gray v. Mississippi, the Supreme Court held the wrongful exclusion for cause of a prospective juror who wasa death penalty skeptic constituted reversible error. The plurality opinion emphasized the potential prejudice to a capital defendant when death penalty skeptics are systematically excluded from a jury by peremptory challenges. (481 U.S.at 667-68.) The systematic, peremptory exclusion of death penalty skeptics in appellant's case requires reversal of the penalty verdict. / 178 H. Errors in Death Qualifying the Penalty Jury Requires Reversal ofthe Guilt Verdicts as Well. Witherspoonv.Illinois identified three separate problems regarding death qualification. First, death qualification can be so extreme as to make the jury biased at the penalty phase. Second, death qualification that is so extreme may also makethe jury biased at the guilt phase. Third, even death qualification that is not so extreme biases the jury at the guilt phase. (391 U.S. 510.) Thefirst issue is the one that formed the basis for the limits on death qualification in Witherspoon. The second andthird issues were left open for further studies. However, it appears that courts have erroneously compoundedthese issues. (See, e.g., Hovey v. Superior Court, 28 Cal.3d at 11-12 [summarizing Witherspoon and discussing the twoissuesas ifthey were identical]; see also People v. Fields, 35 Cal.3d at 344.) This melding of issues is incorrect. The second issue is whether death qualification that did not meet the proper standard for removal of penalty phase jurors was improperat the guilt phase. (Witherspoon, 391 U.S. at 516-18.) Witherspoon held that because the evidence on this second issue was not yet developed, it only would reverse the penalty phase.(Id. at 516-18, 522, fn. 21.) The third issue is whether, assuming the State properly death-qualified the jury for purposes ofthe penalty phase, it was proper for such death qualification to also exclude potential jurors from the 179 - guilt phase. (Id. at 521, fn. 19.) This was the issue involving the "guilt phase includables" discussed in Lockhart and Hovey. This Court has routinely asserted that Witherspoon error as to the penalty phase jury requires the reversalofthe penalty butnot the guilt verdicts. (See, e.g., People v. Ashmus, 54 Cal.3d at 962.) The UnitedStates Supreme Court has not addressed this issue. This Court should alterits position on this point and find that error resulting from the death qualification ofthe jury also requires reversal of any convictions resulting from the guilt phase. Since the evidence showsthat a death-qualified jury is conviction prone and different from a typical jury, this Court should reconsider the conclusion that Witherspoon error requires only penalty reversal. The State's only conceivable legitimate interest in death qualification is at the penalty phase. If it committed error in achieving this interest, then it has no interest in death-qualifying the guilt phase jury. Since the prosecution did death-qualify the jury in this case, appellant improperly faced a biased guilt phase jury. Moreover, an error resulting in a biased jury cannot be harmless. When this Court finds error as to the penalty phase jury's death qualification, it must also reverse appellant's guilt phase convictions. I, Conclusion. The death-qualification process in Californiais irrational and unconstitutional. It prevents citizens from performing as jurors in capital 180 cases based on their "moral and normative" beliefs despite the fact that the law specifically requires capital jurors to make "moral and normative" decisions. These citizens’ voices are eliminated from the data that the courts rely on to determine whethera particular punishment offends evolving standards of decency under the Eighth Amendment. To make matters worse, California allows some case-specific death qualification; one ofthe effects of this process is to remove jurors who would be highly favorable to specific mitigation evidence in violation of the Eighth Amendment. The death-qualification procedure in California also violates the equal protection and due process clauses of the Fourteenth Amendment. To their detriment, capital defendants receive vastly differentjuries at the guilt phase in comparison with other defendants. In addition, since death qualification results in juries which are more likely to convict and to choose the death sentence, capital defendants' guilt and penalty determinations are not made with the heightenedreliability required by the Eighth Amendment. A vast amount ofscientific data demonstrates that death-qualified juries are far more conviction-prone and death-pronethan any otherjuries. The data showsthatthe death-qualification process disproportionately removes minorities, women,andreligious people from sitting on capital juries in violation ofthe Sixth and Fourteenth Amendments. Moreover, as 181 wastruein this case, prosecutors regularly use the death-qualification process to achieve these results. The very process of death qualification skewscapital juries to such a degree that they can no longerbe said to be impartial and fully representative ofthe community. All ofthese errors were present in the instant case. From beginning to end, death qualification violated appellant'srights. In this case, the process accomplished was what was expressly prohibited by the Supreme Court: "In its quest for a jury capable of imposing the death penalty, the State produced a jury uncommonly willing to condemn a man to die. It is, of course, settled that a State may not entrust the determination ofwhether a man is innocent or guilty to a tribunal ‘organized to convict.’ It requires but a short step from that principle to hold,as wedo today, 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." (Lockhart v, McCree, 476 U.S. at 179, quoting Witherspoonv.Illinois, 391 U.S. at 520-521 [footnotes and internal citations omitted].) Thus, death qualification in general and as applied in this particular case violated appellant's Fifth, Sixth, Eighth and Fourteenth Amendment rights under the United States Constitution andarticle I, sections 7, 15, 16 and 17 ofthe California Constitution. Since this error is comparable to other constitutional errors in the jury selection, it requires reversal of defendant's convictions and death sentence without inquiry into prejudice. (See, e.g., Davis v. Georgia (1976) 429 U.S. 122, 123 [improper challenges for cause]; People v. Stewart (2004) 33 Cal.4th 425, 454; Turner v. Murray 182 (1986) 476 U.S. 28, 37 [failure to question prospective jurors about race in a capital case involving interracial violence].) Appellant's convictions and death sentence accordingly must be reversed. VII. CALIFORNIA’S DEATH PENALTY STATUTE, AS INTERPRETED BY THIS COURT AND APPLIED AT APPELLANT’S TRIAL, VIOLATES THE UNITED STATES CONSTITUTION In People v. Schmeck (2005) 37 Cal.3d 240, a capital appellant presented a numberofoften-raised constitutional attacks on the California capital sentencing schemethat had been rejected in prior cases. As this Court recognized, a major purpose in presenting such argumentsis to preserve them for further review. (Id. at 303.) This Court acknowledged that in dealing with these attacksin prior cases, it had given conflicting signals on the detail needed in order for an appellant to preserve these attacks for subsequent review. (Id. at 303, fn. 22.) In order to avoid detailed briefing on such claimsin future cases, the Court authorized capital appellants to preserve these claims by “do[ing] no morethan (i) identify[ing] the claim in the context ofthe facts, (ii) not[ing] that we previously have rejected the sameor a similar claim in a prior decision, and (iii) ask[ing] us to reconsider that decision.” (Id. at 304.) Appellant Mendozahasno wish to unnecessarily lengthenthis brief. Accordingly, pursuant to Schmeckandin accordance with this Court’s own practice in 183 decisionsfiled since then,” appellant identifies the following systemic and previously rejected claimsrelating to the California death penalty scheme that require reversal ofhis death sentence and requests the Court to reconsider its decisions rejecting them: 1. Factor (a): Section 190.3, subdivision (a), permitting a jury to sentence a defendant to death based on the “circumstancesofthe crime,” is being applied in a mannerthat institutionalizes the arbitrary and capricious imposition of death, is vague and standardless, and violates appellant’s Fifth, Sixth, Eighth, and Fourteenth Amendmentrights to due process, to equal protection, to a reliable and non-arbitrary determinations ofthe appropriateness ofthe death penalty andofthe fact that aggravation outweighed mitigation, and freedom from cruel and unusual punishment. The jury in this case was instructed in accord with this provision. (4CT 1011-12.) In addition, the jury was not required to be unanimousasto which “circumstances ofthe crime” amounting to an aggravating circumstance had been established, nor wasthe jury required to find that such an aggravating circumstance had beenestablished beyond a reasonable 8 See, e.g., People v. Taylor (2010) 48 Cal.4th 574, 143-44 and People v. McWhorter (2009) 47 Cal.4th 318, 377-379. See also, e.g., People v. Collins (2010) 49 Cal.4th 175, 259-61; People v. Thompson (2010) 49 Cal.4th 79; People v. D’Arcy (2010) 48 Cal.4th 257, 307-309; People v. Mills (2010) 48 Cal.4th 158, 213-215; People v. Ervine (2009) 47 Cal.4th 745, 810-811; People v. Carrington (2009) 47 Cal.4th 145, 198-199; People v. Martinez (2010) 47 Cal.4th 911, 967-968. 184 doubt, thus violating Ring v. Arizona, 536 U.S. 584 and its progeny®and appellant’s Sixth Amendmentright to a jury trial on the “aggravating circumstance[s] necessary for imposition of the death penalty.” (Ring, 536 U.S.at. 609.) This Court has repeatedly rejected these arguments. (See, e.g., People v. Collins, 49 Cal.4th at 259-61; People v. Mills, 48 Cal.4th at 213-14; People v. Martinez, 47 Cal.4th at 967 ; People v. Ervine, 47 Cal.4th at 810; People v. McWhorter, 47 Cal.4th at 378; People v. Mendoza (2000) 24 Cal.4th 130, 190; People v. Schmeck, 37 Cal.4th at 304-05.) The Court’s decisions should be reconsidered because they are inconsistent with the aforementioned provisions ofthe federal Constitution. 2. Factor (b): During the penalty phase, the jury wasinstructedit could considercriminalacts that involved the express or implied use of violence. (4CT 1011.) The only evidence in support of this instruction was testimony at the guilt phase that appellant had pushedhis wife in a fight and the jury was authorized to consider such acts at the penalty phase pursuant to section 190.3, subdivision (b). The jurors were nottold that they could notrely on this factor (b) evidence unless they unanimously agreed beyond a reasonable doubt that the conduct had occurred. In light of ** Ring v. Arizona (2002) 536 U.S. 584, Blakely v. Washington (2004) 542 U.S. 296, United States v. Booker (2005) 543 U.S. 220, Cunningham v. California (2007) 549 U.S. 270. 185 the Supreme Court decision in Arizona, 536 U.S. 584 andits progeny,”thetrial court’s failure violated appellant’s Sixth Amendment right to a jury trial on the “aggravating circumstance[s] necessary for imposition of the death penalty.” (Ring, 536 U.S.at 609.) In the absence of a requirementofjury unanimity, defendant was also deprived ofhis Eighth Amendmentright to a reliable, non-arbitrary penalty phase determination and to freedom from cruel and unusual punishment. This Court has repeatedly rejected these arguments. (See, e.g., Peoplev. Collins, 49 Cal.4th 259-61; People v. D’Arcy, 48 Cal.4th at 308; People v. Martinez, 47 Cal.4th at 967-68; People v. Lewis (2006) 39 Cal.4th 970, 1068.) The Court’s decisions should be reconsidered because they are inconsistent with the aforementioned provisions ofthe federal Constitution. In addition, allowing a jury that has already convicted the defendant of first degree murder to decide ifthe defendant has committed other criminal activity violated appellant’s Fifth, Sixth, Eighth and Fourteenth Amendmentrights to an unbiased decision maker, to due process, to equal protection, to a reliable and non-arbitrary determinations ofthe appropriateness ofthe death penalty and ofthe fact that aggravation outweighed mitigation, and freedom from cruel and unusual punishment. A . . . 8 See cases cited above in previous footnote. 186 This Court has repeatedly rejected these arguments. (See, e.g., People Hawthorne (1992) 4 Cal.4th 43, 77.) The Court’s decisions in this vein should be reconsidered because they are inconsistent with the aforementioned provisions ofthe federal Constitution. 3. Factor(i): The trial judge’s instructions permitted the jury to rely on defendant’s age in deciding if he would live or die without providing any guidance as to whenthis factor could comeinto play. (4CT 1012.) This aggravating factor was unconstitutionally vague in violation of due process and the Eighth Amendmentrightto a reliable, non-arbitrary penalty determination and requires a new penalty phase. This Court has repeatedly rejected this argument. (See, e.g., People v. Mills, 48 Cal.4th at 213; People v. Ray (1996) 13 Cal.4th 313, 358.) These decisions should be reconsidered because they are inconsistent with the aforementioned provisionsofthe federal Constitution. 4. Inapplicable, vague, limited and burdenless factors: At the penalty phase,thetrial court instructed the jury in accord with standard instruction CALJIC 8.85. (4CT 1011-13.) This instruction was constitutionally flawed in the following ways:(1) it failed to delete inapplicable sentencing factors, (2) it contained vagueandill-defined factors, particularly factors (a) and(k), (3) it limited factors (d) and (g) by adjectives such as “extreme” or “substantial,” and(4)it failed to specify a burden ofproof as to either mitigation or aggravation. Theseerrors, taken 187 singly or in combination, violated appellant’s Fifth, Sixth, Eighth and Fourteenth Amendmentrights to due process, to equal protection, to reliable and non-arbitrary determinationsofthe appropriatenessofthe death penalty and ofthe fact that aggravation outweighed mitigation, and freedom from cruel and unusual punishment. This Court has repeatedly rejected these arguments.(See, e.g., Thompson, 49 Cal.4th at 143-44; People v. Taylor, 48 Cal.4th at 661-63; People v. D’Arcy, 48 Cal.4th at 308; People v. Mills, 48 Cal.4th at 214 ;v.47 Cal.4th at 968; People v. Schmeck, 37 Cal.4th at 304-305; People v. Ray, 13 Cal.4th at 358-359.) The Court’s decisions should be reconsidered because they are inconsistent with the aforementioned provisions ofthe federal Constitution. 5. Failure to Narrow: California’s capital punishment scheme,as construed by this Court in People v. Bacigalupo (1993) 6 Cal.4th 457, 475- 477, and as applied, violates the Eighth Amendmentby failing to provide a meaningful and principled wayto distinguish the few defendants whoare sentenced to death from the vast majority whoare not. This Court has repeatedly rejected this argument. (See, e.g., People v. D’Arcy, 48 Cal.4th at 308; People v. Mills, 48 Cal.4th at 213 ; People v. Martinez, 47 Cal.4th at 967; People v. Schmeck, 37 Cal.4th at 304.) The Court’s decisions should be reconsidered because they are inconsistent with the aforementioned provisions ofthe federal Constitution. 188 6. Burden ofproof and persuasion: Under California law, a defendant convicted of first-degree special-circumstance murder cannot receive a death sentence unless a penalty-phase jury subsequently (1) finds that aggravating circumstances exist, (2) finds that the aggravating circumstances outweigh the mitigating circumstances, and (3) finds that death is the appropriate sentence. The jury in this case wasnottold that these three decisions had to be made beyond a reasonable doubt, an omission that violated the Supreme Court decisions in Ring v. Arizona, 536 U.S. 584 and its progeny. Nor was the jury given any burden ofproofor persuasionat all. These were errors that violated appellant’s rights under the Fifth, Sixth, Eighth and Fourteenth Amendmentrights to due process, to a jury trial, to equal protection, to a reliable and non-arbitrary determination ofthe appropriateness ofthe death penalty, and freedom from cruel and unusual punishment. This Court has repeatedly rejected these arguments. (See, e.g., People v. Collins, 49 Cal.4th at 259-61; People v. Taylor, 48 Cal.4th at 259-61; People v. D’Arcy, 48 Cal.4th at 308; People v. Mills, 48 Cal.4th at 213; People v. Martinez, 47 Cal.4th at 967; People v. Ervine, 47 Cal.4th at 810-811; People v. McWhorter, 47 Cal.4th at 379; People v. Schmeck, 37 Cal.4th at 304.) The Court’s decisions should be reconsidered because they are inconsistent with the aforementioned provisions of the federal Constitution. 7. Written findings: The California death penalty schemefails to 189 require written findings by the jury as to the aggravating and mitigating factors found and relied on, in violation of Fifth, Sixth, Eighth and Fourteenth Amendmentrights to due process, to equal protection, to reliable determinations of the appropriateness ofthe death penalty and of the fact that aggravation outweighed mitigation, and freedom from cruel and unusual punishment. This Court has repeatedly rejected these arguments. (See, e.g., People v. Collins, 49 Cal.4th at 259-61; People Thompson, 49 Cal.4th at 143-44; People v. Taylor, 48 Cal.4th at 661-63; People v. D’Arcy, 48 Cal.4th at 308; People v. Mills, 48 Cal.4th at 213; People v. Martinez, 47 Cal.4th at 967.) The Court’s decisions should be reconsidered because they are inconsistent with the aforementioned provisions ofthe federal Constitution. 8. Mandatory life sentence: Theinstructions fail to inform the jury that if it determines mitigation outweighs aggravation, it must return a sentence oflife without parole. This omission results in a violation of appellant’s Fifth, Sixth, Eighth, and Fourteenth Amendmentrights to due process of law, equal protection, a reliable, non-arbitrary determination of the appropriateness of a death sentence, and freedom from cruel and unusual punishment. This Court has repeatedly rejected these arguments. (See, e.g., People v. McWhorter, 47 Cal.4th at 379; People v. Carrington, 47 Cal.4th at 199.) The Court’s decisions should be reconsidered because they are inconsistent with the aforementioned provisions ofthe federal 190 Constitution. 9. Vaguestandard for decision-making: Theinstruction that jurors may impose a death sentence only if the aggravating factors are “so substantial” in comparison to the mitigating circumstancesthat death is warranted (4CT 1026-28) creates an unconstitutionally vague standard, in violation of the Fifth, Sixth, Eighth, and Fourteenth Amendmentrights to due process, equal protection, a reliable, non-arbitrary determination of the appropriateness of a death sentence, and freedom from cruel and unusual punishment. This Court has repeatedly rejected these arguments. (People v. Carrington, 47 Cal.4th at 199; People v. Catlin (2001) 26 Cal.4th 81, 174; People v. Mendoza, 24 Cal.4th at 190.) The Court’s decisions should be reconsidered because they are inconsistent with the aforementioned provisions ofthe federal Constitution. 12. Intercase proportionality review: The California death penalty schemefails to require intercase proportionality review, in violation of Fifth, Sixth, Eighth and Fourteenth Amendmentrights to due process, to equal protection, to reliable determinations of the appropriateness of the death penalty and of the fact that aggravation outweighed mitigation, and freedom from cruel and unusual punishment. This Court has repeatedly rejected these arguments. (See, e.g., People v. Collins, 49 Cal.4th 259-61; | People v. Thompson, 49 Cal.4th at 143-44; People v. Taylor, 48 Cal.4th at 661-63; People v. D’Arcy, 48 Cal.4th at 308-09; People v. Mills, 48 Cal.4th 191 at 214; People v. Martinez, 47 Cal.4th at 968.) The Court’s decisions should be reconsidered because they are inconsistent with the aforementioned provisions of the federal Constitution. 13. Disparate sentence review: The California death penalty schemefails to afford capital defendants with the same kind ofdisparate sentence review asis afforded felons under the determinate sentence law,in violation ofFifth, Sixth, Eighth and Fourteenth Amendmentrights to due process, to equal protection, to reliable determinations ofthe appropriatenessofthe death penalty and ofhe fact that aggravation outweighed mitigation, and freedom from cruel and unusual punishment. This Court has repeatedly rejected these arguments. (See, e.g., People v. Collins, 49 Cal.4th at 259-61; People v. Mills, 48 Cal.4th at 214; People v. Martinez, 47 Cal.4th at 968; People v. Ervine, 47 Cal.4th at 811.) The Court’s decisions should be reconsidered because they are inconsistent with the aforementioned provisions ofthe federal Constitution. 14. International law: The California death penalty scheme, by virtue of its procedural deficiencies and its use of capital punishmentas a regular punishment for substantial numbers of crimes, violates international norms ofhuman decency andinternational law — including the International Covenant of Civil and Political Rights —- and thereby violates the Eighth Amendmentand the Supremacy Clause as well, and consequently appellant’s death sentence must be reversed. This Court has 192 repeatedly rejected these arguments. (See, e.g., People v. Collins, 49 Cal.4th at 259-61; People v. Taylor, 48 Cal.4th at 661-63; People v. D’Arcy, 48 Cal.4th at 308; People v. Mills, 48 Cal.4th at 213; People v. Martinez, 47 Cal.4th at 968; People v. Carrington, 47 Cal.4th at 198-199; People v. Schmeck, 37 Cal.4th at 305.) The Court’s decisions should be reconsidered because they are inconsistent with the aforementioned provisions of federal law and the Constitution. 15. Cruel and unusual punishment: The death penalty violates the Eighth Amendment’s proscription against cruel and unusual punishment. This Court has repeatedly rejected this argument. (See, e.g., People v. Thompson, 49 Cal.4th at 143-44; People v. Taylor, 48 Cal.4th at 661-63; People v. McWhorter, 47 Cal.4th at 379.) Those decisions should be reconsidered because they are inconsistent with the aforementioned provision ofthe federal Constitution. 16. Cumulative deficiencies: Finally, the Eighth and Fourteenth Amendments are violated when one considers the preceding defects in combination and appraises their cumulative impact on the functioning of California’s capital sentencing scheme. As the United States Supreme Court hasstated, “[t]he constitutionality of a State’s death penalty system turns on review ofthat system in context.” (Kansas v. Marsh (2006) 548 US. 163, 179, fn. 6; see also Pulley v. Harris (1984) 465 U.S. 37, 51 [while comparative proportionality review is not an essential componentof every 193 constitutional capital sentencing scheme,a capital sentencing scheme may be so lacking in other checks on arbitrariness that it would not pass constitutional muster without such review].) Viewed as a whole, California’s sentencing schemeis so broadin its definitions of whois eligible for death and so lacking in procedural safeguards thatit fails to provide a meaningfulor reliable basis for selecting the relatively few offenders subjected to capital punishment. To the extent respondent hereafter contends that any ofthese issues is not properly preserved, on the grounds that, despite Schmeck andthe other cases cited herein, appellant has not presented them in sufficient detail, appellant will seek leaveto file a supplemental briefmore fully discussing these issues. / / 194 POST-CONVICTION REVIEW FOR TREATY VIOLATIONS IX. POST-CONVICTION REVIEW IS THE PROPER FORUM IN WHICH TO ADDRESS THE VIOLATION OF APPELLANT’S CONSULAR TREATY RIGHTS A. Appellant's Consular Treaty Rights Were Violated and His Consulate Was Thereby Denied Its Right to Assist Him Throughout the Formative Stages of His Case. Article 36 of the Vienna Convention on Consular Relations, Apr. 24, 1963, 21 U.S.T. 77 [hereinafter, “Vienna Convention” or “VCCR”] requires all law enforcementofficers to notify a detained foreign national, without delay, of his right to communicate with and contact his consulate. At the detainee’s request, the authorities must also notify consular officials — again, without delay — of his incarceration. Furthermore, Article 36 grants consular officers the right of access to their detained nationals, to visit and converse with them and to arrange for their legal representation. Finally, Article 36(2) requires that local laws and regulations “must enable full effect to be given to the purposes for which the rights accorded under this Article are intended.” Some 172 nations are parties to the VCCR, including Mexico and the United States;*° accordingly, California authorities were under a binding obligation to inform Mr. Mendozaofhis 8 Within the United States, the VCCR “has continuously been in effect since 1969.” (Breard v. Greene (1998) 523 U.S. 371, 376.) 195 right to consular communicationand notification promptly uponhisarrest in 2001.*° Well prior to appellant's arrest, the U.S. DepartmentofState had circulated a comprehensive booklet on consular notification and access obligations to all major U.S. police departments,*’ as well as a wallet-sized card designedto becarried byarresting officers that summarized Article 36 obligations. As ofMarch 2000,“the Department had distributed approximately 44,000 booklets and over 300,000 cardsto arresting officers, prosecutors, and judicial authorities in every state.. . .”' (LaGrand Case (F.R.G.v. U.S.), 2001 I.C.J. Reports, Counter-Memorial Submitted by the United States of America (27 March 2000)at para. 20.)*8 The same 86 The United States takes the view that the duty to inform a known foreign national of the right to consular contact should occurat the time of his initial detention. (See U.S. Department of State, Consular Notification and Access (3rd ed., Sept. 2010) at 21 [advising U.S. police departments that “[i]f the identity and foreign nationality of a person are confirmed during a custodial interrogation that precedes booking, consular information should be provided at that time” and that if "it appears that the person is probably a foreign national, you should provide consular information andtreat the person like a foreign national until and unless you confirm that he or she is instead a U.S.citizen.”].) 87 U.S. Department of State, Consular Notification and Access: Instructions for Federal, State, and other Local Law Enforcement and Other Officials Regarding Foreign Nationals in the United States and the Rights of Consular Officials To Assist Them (Released January 1998). Available at: http://web.archive.org/web/20011210191723/ http:// travel.state.gov/consul_notify.html/ 88s Available at http://www.icj-cij.org/docket/files/104/8554.pdf. 196 comprehensive instructions were also available on-line at the time of 1.” These instructions adviseappellant’s arrest in December of 200 arresting officers to be alert to “indicators [that] could be a basis for asking the person whether he/she is a foreign national” such as a detainee’s “claim to have been born outside the United States” in order“to determine whether any consular notification obligations apply.””° Appellant's booking form clearly identifies his place ofbirth as Mexico; moreover, during the initial stage of his interrogation, he was asked “how long he had lived in the United States” and informedthe police that he had learned English “back in Mexico.” (2CT 284). Furthermore, the investigating officers were aware from the timeofhis arrest that appellant had previously been deported from the United States. (SRT 785). Despite these obvious indications of foreign nationality, the police made no further inquiries regarding appellant's nationality and no advisement of consular rights was ever provided to him. On May5, 2005, defense counselfiled a Motion to Preclude the Death Penalty and/or Other Sanctions based on a violation of the VCCR. 89 Available at http://web.archive.org/web/20011210191723/ http://travel.state.gov/consul_notify.html [archived copy of Consular Notification andAccess, captured on December10, 2001]. %0 U.S. Departmentof State, Consular Notification and Access, Part III: Detailed Instructions, at http://Awveb.archive.org/web/20011210030250/ http://travel.state.gov/notification3 -html. 197 (2CT 283-345). An opposition wasfiled on May 18, 2005. (2CT 365- 491). At the hearing on May 23, 2005, the trial court found that a violation of Article 36 obligations (as enacted by Penal Code section 834(c)) had taken place, but that the violation was “not purposeful” because “the officers involved were unaware ofthe provisions... .” (SRT 797.) The court also stated that the question ofthe appropriate remedy for the violation “{wa]s certainly open” but that there was no California case law or Supreme Court precedentto indicate that the death penalty should be precluded as a sanction. (Id.) Despite appellant’s declaration stating that he would have requested consular notification and would not have discussed the case with the police if he had been advised ofhis right to speak with a Mexican consular representative (2CT 344), the trial court denied the requested preclusion ofthe death penalty or other sanctions on the grounds that appellant's sworn statement was “speculation.” (SRT 798). The Mexican Consulate did not become aware of appellant’s detention until November 8, 2002 — 11 monthsafter his arrest— and then only because it was contacted by a defense investigator, rather than by law enforcement authorities. Among other services, the Mexican Government respondedto this tardy notification by providing the defense with access to legal resources through its Capital Legal Assistance Program. (See 4CT 909-16 [Letter Brief on behalf ofthe Government ofMexico].) 198 Bythe time ofMexico’s delayed consular involvement, the prosecution had already decided to seek the death penalty against appellant. Subsequent consular efforts to assist in appellant’s defense were severely hampered byhis deteriorating mental state. As the Mexican Government informedthetrial court, defense counsel had repeatedly raised their concern with Mexico’s legal representatives that appellant was “unable to assist them in the preparation and presentation of a defense” and “[d]uring a number of communications spread over several months, counsel for appellant expressed concern about their client’s emotional state, current mental state and competencyto standtrial.” (id. at 910-911.) Furthermore, due to appellant's increasingly severe mental illness, “counsel ha[d] largely been unable to communicate with Mr. Mendoza on any substantive issues” and were “unable, in any specific way, to discusstrial strategy.” (Id. at 911.) On December1, 2005, the trial court allowed Mexico’s amicusbrief to be filed — and then summarily denied the reconsideration of appellant's competency that the defense and Mexico had requested. (14RT 2954.) Three significant facts emerge from this record. First, the arresting authorities were aware of appellant's probable foreign nationality from the earliest stages of his detention, yet never complied with their binding information and notification obligations under Article 36(1) ofthe VCCR. Second, the trial court found that Article 36 obligations had been violated, 199 yet declined to apply any form ofpre-trial remedies for the violation.” Lastly, once appellant's consulate finally learned ofhis arrest and prosecution, Mexico expended extraordinary efforts to assist in his defense andto protect his right to due process —just as Mexico would have done from the outset of his case, but for the protracted Vienna Convention violation perpetrated by the police and condonedby thetrial court. B. The Scope ofRemedies Potentially Available for the Article 36 Violation Is Dependent on a Showingof Prejudice. Like the United States Supreme Court, this Court “continue[s] to adhere”to the approach of“assuming, without deciding, that article 36 confers individual rights on foreign nationals.” (In re Martinez (2009) 46 Cal.4th 945, 957 fn. 3; cf Medellin v. Texas (2008) 552 U.S. 491, 506 fn. 4 [same].) It follows, therefore, that a wide range ofjudicial remedies could be available for a timely post-conviction claim asserting a prejudicial Article 36 violation — precisely as many other courts have long recognized. (See e.g., Deitz v. Money (6th Cir. 2004) 391 F.3d 804 [remanding non-capital case to determine, inter alia,if trial attorney’s ae See, e.g., Sanchez-Llamas v. Oregon (2006) 548 U.S. 331, 350 [recognizing that if a defendant “raises an Article 36 violationattrial, a court can make appropriate accommodationsto ensure that the defendant secures, to the extent possible, the benefits of consular assistance”; see also Osagiede v. United States (7th Cir. 2008) 543 F.3d 399, 408 n. 4 {Neither do we consider the “appropriate accommodations” remedy suggested in Sanchez-Llamas to be a new rule of criminal procedure:it is simply an application ofcommon sense”’}.) 200 failure to “notify Deitz of his right to contact the Mexican consulate...deprived him ofthe effective assistance of counsel]”); Valdez State (Okla.Crim.App.2002) 46 P.3d 703, 710 [finding trial counsel prejudicially ineffective for failing to “inform Petitioner he could have obtained financial, legal and investigative assistance from his consulate” based on “the significance and importance ofthe factual evidence {since} discovered with the assistance of the Mexican Consulate”]; United States v. Rangel-Gonzalez (9th Cir. 1980) 617 F.2d 529, 532-533 [recognizing right conferred under Article 36 “is a personal one” and dismissing indictment for illegal re-entry, where INS failed to comply with consular advisement requirements and defendant demonstrated prejudice]; see also Commonwealth v. Gautreaux (Mass. 2011) 458 Mass. 741, 751-752 [challenge to conviction resulting from Article 36 violation may be madein post-conviction motion for new trial; to demonstrate prejudice, “the defendant mustestablish that his consulate would have assisted him in a way that likely would have favorably affected the outcomeofhis case”].) Thus, with the sole exception of denying suppression as an available remedy for an Article 36 violation, see Sanchez-Llamas v. Oregon, 548 U.S.at 350, a broad rangeofjudicial reliefmay be applicable to a properly- preservedand prejudicial breach ofArticle 36 obligations.” The threshold %2 Evenin the context of suppression, however, the U.S. Supreme Court has recognized that an Article 36 violation can be considered as a 201 requirement commonto the rulings recognizing the availability of such remediesis the need to demonstrate actual prejudice: in other words, “some showingthat the violation had an effect on thetrial.” (Breard Vv. Greene, 523 U.S. at 377.) Where, as here, disposition of a VCCRclaim necessarily relies on consideration of “[w]hether defendantcan establish prejudice based on facts outside ofthe record” the issue becomes“a matter for a habeas corpus petition” and the Article 36 claim “is appropriately raised in such a petition.” (People vy. Mendoza (2007) 42 Cal.4th 686, 711.) Additionally, no factual findings on the question ofprejudice should be made without the opportunity for an evidentiary hearing. Accordingly,this Court should defer any resolution ofthe matter on direct appeal. / / / relevant factor in the totality of the circumstances. (See id. [defendant can raise an Article 36 claim “as part of a broader challenge to the voluntariness of his statements to police”]; accord State v. Morales-Mulato (Minn. App. 2008) 744 N.W.2d 679 [suppression not an appropriate remedy for Article 36 violation, but may be considered in assessing whether custodial statement wasvoluntary, knowing, and intelligent].) While the U.S. Supreme Court has notyet ruled on the availability of other sanctions such as preclusion of the death penalty for a prejudicial Article 36 violation, it has nonetheless clearly signaled that post-conviction review is the proper forum for consideration of a non-defaulted claim. (See, e.g., Breard v. Greene, 523 U.S. at 376-78 {recognizing federal habeas statute provides authority to consider a Vienna Convention violation and alternatively addressing merits of defaulted claim ofprejudice].) 202 C, Any Prejudice Arising from the VCCR Violation in This Case Can Only Be Determined and Addressed in Post-Conviction Proceedings. In assessing whether or not appellant was prejudiced by the VCCR violation, the trial court focused on factors related solely to the suppression of his custodial statement. (See 5RT 797 [noting that “the defendant had been in the United States for quite some period oftime, did speak English reasonably well” and “was advised of his constitutional right [sic] in the Miranda decision”].) However, the defense motion was not confined to the issue of appellant's interrogation; instead, it urged the trial court to consider the possible prejudice arising from the treaty violation during the entire time period from his arrest to the eventual contact with his consulate nearly a year later: "The lack of consular notification was particularly prejudicial in this case because Mr. Mendoza was denied the assistance ofhis own consulate until many monthsafter the prosecution’s decision to seek death. Thus, he was deprived ofthe assistance ofhis consular officers during one ofthe mostcritical time periods ofhis case. Consular officials were not able, because they were not notified, to assist with developmentofmitigation or other persuasive reasons why death should not be sought.For this reason, preclusion ofthe death penalty would be an appropriate remedy." (2CT 297; emphasis added). Thetrial court did not address these broader implications ofthe Article 36 violation in its limited ruling, finding only that “[w]e don’t have any idea what would haveactually happened backatthat time, had he been 203 so advised.” (SRT 798). The trial court also left open the possibility that other sanctions might apply, “express[ing] no opinion as to whetheror not defendant might have a right to enforce his rights” by other means such as a “civil suit against the officers in this matter.” (Ibid.) Thetrial court thus did not examine the full impact ofthe VCCR violation throughout the crucial early stages of appellant's case, just as the defense motion implied but failed to establish specific instances of prejudice. This Court has indicated that the appropriate test for prejudice for Article 36 claims is whether “the alleged violation denied defendant any benefit he would have otherwise received had the consulate been properly notified” along with evidence that he “did not obtain that assistance from other sources.” (Mendoza, 42 Cal.4th at 711.) While there are indications here of some potential avenues for a prejudice inquiry,it is not possible from the incomplete record in this case to determine what effect the protracted treaty violation may have had on the subsequent proceedings. In these circumstances, post-conviction review provides the only appropriate forum in which to address appellant’s claim that he was prejudiced by the failure to advise him ofhis right to seek consular assistance and by the resulting 11-month delay in consular involvementin his capital case. (See People v. Cruz (2008) 44 Cal.4th 636, 689 n. 7 [Vienna Convention claim involving “matters outside this appellate record”is “properly raised on habeas corpus and will be addressed and resolved in that proceeding”]; In 204 re Martinez, 46 Cal.4th at 957 [noting that, in response to “petitioner’s first habeas corpuspetition assert[ing] a violation of his Vienna Convention rights” this Court “reviewed and consideredthat claim, including, of course, whether petitioner was prejudiced by any violation ofhis article 36 rights”’].) Other courts have also determined that post-conviction review is the appropriate venue for the consideration of Article 36 claims. In his concurrence in Medellin v. Texas, Justice Stevens noted that the “the Oklahoma Court of Criminal Appeals . . . ordered an evidentiary hearing” on whether a death-sentenced Mexican national “had been prejudiced by the lack of consular notification.” (Medellin v. Texas (2008) 552 U.S. 491, 506, fn.) Like the Oklahoma Court of Criminal Appeals, this Court possesses the inherent authority to remand appellant’s case for an evidentiary hearing in habeas proceedings to determine if he was “prejudiced by the State’s violation of his Vienna Conventionrights”. (Torres v. State (Okla. Crim.App. 2005) 120 P.3d 1184, 1186.) Appellant anticipates that habeas corpus counsel (whois notyet appointed) will likely provide additional supporting and dispositive facts concerning this issue. As in Torres, there is thus a significant likelihood that further investigation in preparation for a possible evidentiary hearing in this case would reveal the full extent to which the Mexican Consulate’s earlier involvement “would have focused on obtaining a sentenceofless 205 than death”or, in the circumstances of this case, would also have “assisted in the guilt phase ofthe trial.” (Id. at 1188.) Underthis Court’s established jurisprudence, “issues that could be raised on appeal mustinitially be so presented,” so that “an unjustified failure to present an issue on appealwill generally preclude its consideration in a post-conviction petition for a writ ofhabeas corpus.” (In re Harris (1993) 5 Cal.4th 813, 829 [citing In re Dixon (1953) 41 Cal. 2d 756, 759]; see also Sanchez-Llamas, 548 U.S. 331 at 360 [Article 36 claims may be subjected to state procedural default rules].) In light of these procedural requirements and the inadequacy ofthe existing factual record regarding prejudice, appellant hereby preserves his entitlement to post- conviction development and consideration ofthe effects ofthe lengthy pre- trial VCCR violation, and to any remedies that this Court may thensee fit to impose. D. Appellant Is Entitled to Comprehensive "Review And Reconsideration ofthe VCCR 1. The requirements ofthe Avena Judgment of the International Court of Justice apply with full force to appellant's case. Asrecognized in Avena and Other Mexican Nationals (Mexicov. U.S.) 2004 LC.J. 12 (Judg. ofMar. 31) (“Avena”), the International Court of Justice “concluded that the United States had violated the Vienna Convention rights of 51 Mexican nationals then on death row.. . by failing 206 to comply with Vienna Convention, article 36’s consular notification requirement” and “directed the courts of the United States to review the convictions and sentences of those Mexican nationals to determine whether, as a result of the violation, they suffered actual prejudice.” (In re Martinez, 46 Cal.4th at 949.) Although appellant had not yet been sentenced and was thus not among the 51 individuals whose claims were specifically addressed by the ICJ,it is nonetheless clear that the remedial requirements ofAvena apply to his case with fullforce. The operative and binding findings ofAvena consist ofthe 11 subsections ofparagraph 153 in the ICJ Judgment. Most notably, the ICJ found that the “appropriate reparation”is that the United States “provide, by means of its own choosing, review and reconsideration”in the cases of the Mexican nationals referred to in the decision. (Avena, para. 153(9).) Significantly, however, should the United States’ efforts to provide 9993“guarantees and assurances of non-repetition”’” of such past violations prove unsuccessful, the ICJ unanimously foundthat the identical remedy must also apply to future cases: "[S]hould Mexican nationals nonetheless be sentenced to severe penalties, without their rights under Article 36, paragraph 1 (6), of the Convention having been respected, the United States ofAmerica shall provide, by meansofits own choosing, review and reconsideration ofthe conviction and sentence, so as to allow full weight to be given to the 8 Id., para. 153(10). 207 violation ofthe rights set forth in the Convention, taking accountofparagraphs 138 to 141 of this Judgment." (Id., para. 153(11).) It is indisputable that appellant is a Mexican national whose Article 36 rights were not respected and that he was subsequently sentenced to the most severe ofall penalties. He therefore remainsentitled to receive the comprehensive judicial “review and reconsideration” ofhis conviction and sentence mandated under Avena, in a mannerthat will “guarantee that the violation and the possible prejudice caused by that violation will be fully examined and taken into account...”. (Id. at para. 138.) Finally, this review must examine the claim on its own terms and not require that it qualify also as a violation of some other procedural or constitutional right. The required review must examinethe violation “irrespective ofthe due process rights under United States constitutional law” by considering the claim “as treaty rights which the United States has undertaken to comply with in relation to the individual concerned,”so that “full weight is given to the violation of the rights set forth in the Vienna Convention, whatever may be the actual outcome of such review and reconsideration.” (Id. at para. 138.) 2. Ongoing efforts to implement the Avena judgment domestically counsel for preservation of appellant's claim. Appellant recognizes that the current state of U.S. law does not offer a mechanism by which to seek enforcementofthe Avena Judgmentin U.S. 208 courts, but hereby preserves his entitlement to “review and reconsideration” in light of the ongoing efforts to enshrine that requirement in federal law. Medellin v. Texas, 552 U.S. at 506 concludedthat “the Avena judgmentis not automatically binding domestic law.” However, both the majority and the dissent in Medellin emphasized the compelling nature of the interests at stake in finding a means by which the Avena Judgment could be honored. As Chief Justice Roberts explained for the Court, “In this case, the President seeks to vindicate United States interests in ensuring the reciprocal observance ofthe Vienna Convention, protecting relations with foreign governments, and demonstrating commitmentto the role of international law. These interests are plainly compelling.” (Medellin, 552 U.S. at 524.) The Court also unanimously recognized the binding nature of the Avena Judgment, finding it undisputed that compliance with the decision “constitutes an international law obligation on the part ofthe United States.” (Id. at 504.) The Justices were also in unanimous agreement on onecrucial issue: Congress possessesthe clear constitutional authority to implement the requirements ofAvena. (See id. at 525 [“responsibility for transforming an international obligation arising from a non-self-executing treaty into domestic law falls to Congress”); id. at 535, fn. 3 (Stevens,J., concurring) [discussing “Congress’ implementation options” for ICJ decisions]; id. at 209 566 (Breyer,J., dissenting) [majority’s holdings “encumber Congress" with the task ofpost-ratification legislation].) Developments since Medellin establish that a concerted effort is under way by the Executive and Legislative Branches to ensure that the U.S. meets its obligations to comply with Avena. On June 14, 2011, U.S. Senator Patrick Leahy introduced the Consular Notification Compliance Act (S. 1194), which would grant a right to the judicial process required under Avena. The newlegislation has the full support of “the Obama Administration, including the Department ofJustice, the Department of State, the Department of Defense and the Department ofHomeland Security.” (See 157 Cong. Rec. $3779-80 (daily ed. June 14, 2011) [statement of Sen. Leahy].) This universal support from the affected divisions of the Executive Branch distinguishes the legislation from previous congressional efforts to comply with binding Avena requirements and greatly enhances the chancesofpassage. The proposed law specifically authorizes federal courts to review the merits of a petition claiming a violation of “Article 36(1)(b) or (c) ofthe Vienna Convention on Consular Relations. . . filed by a person convicted and sentenced to death by any federal or state court prior to the date of enactmentofthis Act.” (Consular Notification Compliance Act, 112th Cong.(1st Sess. 2011), § 4(a)(1); emphasis added.) Appellant was sentenced to death well prior to enactment ofthe Act, and the required 210 literal reading of statutory language makesthis provision applicable to his case. (See, e.g., Connecticut Nat'l Bank v. Germain (1992) 503 U.S. 249, 253-254 [ in "interpreting a statute a court should always turn to one cardinal canon before all others" and the courts "must presumethat a legislature says in a statute what it means and meansin a statute whatit says there”].) Under the proposed law,the petition raising an Article 36 violation “shall be part ofthefirst Federal habeas corpus application or motion for Federal collateral relief under chapter 153 oftitle 28, United States Code, filed by an individual. . . .” (Consular Notification Compliance Act, §4(a)(5); emphasis added.) In a letter to the bill’s sponsor that was published in the Congressional Record, the U.S. Attorney-General and the Secretary of State emphasized that passage ofthe Actwill: "finally satisfy U.S. obligations under the judgmentofthe International Court of Justice (ICJ) in [Avena]. As we expressed in April 2010 letters to the Senate Judiciary Committee, this Administration believes that legislation is an optimal way to give domestic legal effect to the Avena judgment and to comply with the U.S. Supreme Court’s decision in Medellin v. Texas, 552 U.S. 491 (2008). (See 157 Cong. Rec. $4216 (daily ed. June 29, 2011). Theplain intentofthe legislation is to meet the requirements of Avena through unencumbered review andreconsideration in a federal habeas corpus proceeding, by ensuring that a petition raising a violation of Article 36 shall not “be considered a second or successive habeas corpus 211 application or subjected to any bars to relief based on pre-enactment proceedings. . .”. (Consular Notification Compliance Act, §4(a)(5).) The legislation further meets Avena requirements by providing that the federal court “may conduct an evidentiary hearing if necessary to supplement the record and, upon a finding of actual prejudice, shall order a new trial or sentencing proceeding.” (Id. at § 4(a)(3).) On July 27, 2011, the full Senate Committee on the Judiciary held a hearing on the Consular Notification Compliance Act, under the title of “Fulfilling Our Treaty Obligations and Protecting Americans Abroad.” Senators heard testimony from the State Department’s Under Secretary for Management, who emphasizedthat passageofthe legislation is “a matter of great urgency” andthat “failure to act is not an option.””* Similarly, the Deputy Assistant Attorney General and Counselor for International Affairs ofthe U.S. DepartmentofJustice testified that passage ofthebill “is critical to the law enforcementinterests ofthe United States” and “strongly urge[d] passage ofthis bill because it protects American citizens abroad while preserving our interests in maintaining critical law enforcement "4 U.S. Senate Committee on the Judiciary, Testimony ofPatrick Kennedy,at http://judiciary.senate.gov/pdf/1 1-7- 27%20Kennedy%20Testimony.pdf 212 cooperation with foreign allies and seeing justice done in capital cases.” Efforts are ongoingto pass this crucially important legislation during the current Congressional session. These provisionsofa bill enjoying the full support of the Administration provides ample reason to believe that review and reconsideration ofArticle 36 violations will be provided to appellantin federal habeas proceedings, should his case proceed to that stage. However, it is certainly possible that the bill will be amended during thelegislative approvalprocess:it is not inconceivable thatits ultimate scope may be limited to those cases where defendants had previously raisedtheir right to “review and reconsideration” in a timely manner. Appellant therefore respectfully preserves his entitlement to comprehensive “review and reconsideration”ofthe Article 36 violation in his case, at a later date and in a manner fully consistent with the dictates of the Avena Judgment. / / * U.S, Senate Committee on the Judiciary, Testimony ofBruce Swartz, at http://judiciary.senate.gov/pdf/11-7- 27%20Swartz%20Testimony.pdf 213 CONCLUSION Wherefore, for the foregoing reasons, appellant respectfully requests that this Court reverse his convictions and his sentence of death, and remandfor a fair trial if and when appellant is found competentto stand trial. DATED: November 2011 Respectfully submitted,—__? KATHY R. MORENO Attorney for Appellant Huber Mendoza 214 CERTIFICATE PURSUANT TO RULE OF COURT8.630(b) I, Kathy R. Moreno,attorney for Huber Mendoza,certify that this Appellant's Opening Brief does not exceed 102,000 words pursuantto California Rule of Court, rule 8.630(b). According to the Word word- processing program on which it was produced, the number ofwords contained herein is 47,755 and the font is Times New Roman 13. I hereby declare, under penalty ofperjury, that the above is true and correct, this ADday ofNovember, 2011, in Berkeley, CA. Ack= C. Nar. KA R. MORENO 215 CERTIFICATE OF SERVICE I, Kathy Moreno,certify that I am over 18 years of age and not a party to this action. I have my business address at P.O. Box 9006, Berkeley, CA 94709-0006. I have made service ofthe foregoing APPELLANT'S OPENING BRIEFby depositing in the United States mail on November _, 2011, a true and full copy thereof, to the following: Attorney General 455 Golden Gate Ave., Rm. 11000 San Francisco, CA 94102 CAP, Attn Scott Kauffiman 101 Second St., Ste. 600 San Francisco, CA 94105 Dist. Atty. Stanislaus County ATTN: Annette Rees 832 12" Street, Ste. 300 Modesto, CA 95354 Superior Court Stanislaus Co., ATTN The Hon. John Whiteside 801 11th St., Room 100 Modesto, CA 95354 Huber Mendoza F 28288 San Quentin, CA 94974 I hereby declare that the aboveis true and correct. Signed underpenalty ofperjury this _day ofNovember, 2011, in Berkeley, CA. KATHY MORENO 216