PEOPLE v. CORDOVA (JOSEPH SEFERINO)

Appellant’s Opening Brief

Cal.May 17, 2013

SUPREME COURT 20PY IN THE SUPREME COURTOF THE STATE OF CALIFORNIA PEOPLE OF THE STATE OF ) §152737 CALIFORNIA ) ) Plaintiff/Respondent ) Contra Costa County ‘y 040292-5 VS. ) ) ) SUPREME COURT JOSEPH S$. CORDOVA ) FILED Defendant/Appellant ) MAY 17 2013 Frank A. McGuire Clerk Deputy APPELLANT’S OPENING BRIEF Glen Niemy, Esq P.O. Box 764 Bridgton, ME 04009 207-646-2600 gniemy/@yahoo.com Bar # 73646 Attorney for Appellant PME ASTI [ISINit OnE Is iru ENALTY IN THE SUPREME COURT OF THE STATE OF CALIFORNIA PEOPLE OF THE STATE OF $152737 CALIFORNIA Plaintiff/Respondent Contra Costa County 040292-5 ) ) ) ) ) Vs. ) JOSEPH S. CORDOVA ) ) )Defendant/Appellant APPELLANT’S OPENING BRIEF Glen Niemy, Esq P.O. Box 764 Bridgton, ME 04009 207-646-2600 gniemy@yahoo.com Bar # 73646 Attomey for Appellant TABLE OF CONTENTS TABLE OF AUTHORITIES.....0.0.00.0.0.cccccccccccsesecseeseseeaceseeces (xi) STATEMENTOF THE CASE....0....ccccccccccccecesessscseescsceceeees 1 STATEMENTOF FACTS..00...0cccccccccccscccsescssscsssesesecsacsceeeee3 GUILT PHASE...00ccscesseceneresetaseetseseses3 People’s Case 1979 Investigation of Crime........0...cccceececceeeee3 A. Initial Investigation of the Crime....................3 B. Gathering of Forensic Evidence...esteeeeeeeseseeees 5 C. The Autopsy... .cccccccccssscecsecsessssescesesesecses 5 D. Processing of Forensic Evidence......................7 E. Police Interviews of William Flores................. 7 F. 1996 Investigation of Crime.................seussesseees 9 G. 2002-2004 STR Genetic Testing.........0.0.00...... 11 H. Statements of Appellant........00000.000cee15 I. Evidence CodeSection 1108 Evidence............. 17 Defense Case A. Scientific Testimony..........0...0.cccccccsccecseseeeeees 18 B. Additional Evidence Regarding Third Party Culpability....0000000cece22 (i) PENALTY PHASE..000occcccccccssccceseceseensesseseceesees23 People’s Case A. Victim Impact Witnesses...0..000...cccecceccseseeee23 B. Evidence of Other Offenses.............0.0.ccccccccccs:24 Appellant’s Case.........ccccccccccsccsscesssecceeeceseseeees24 GUILT PHASE ARGUMENTS..w..ccccccccsssssssssssssessssesssesssceeeeee37 I. DUE TO THE PERVASIVE NEGLIGENCE OF GOVERNMENTAGENTSIN THE INVESTIGATION OF THIS MATTER, APPELLANT WAS NOT CHARGED WITH THE INSTANT CRIMES UNTIL TWENTY-THREE YEARS AFTER ITS COMMISSION, THEREBY PREVENTING HIM FROM MOUNTING AN ADEQUATE DEFENSE AT TRIAL IN VIOLATION OF HIS RIGHT TO DUE PROCESS OF LAW UNDER THE FIFTH AND THE FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION...........00000.00..37 A. INTRODUCTION....0.....ccccccccesccssseceescassessseeseseees39 B. PROCEDURAL HISTORY...ccc39 C. GENERAL DISCUSSION OF THE LAW...............39 1. Federal law as to Pre-Indictment Delay...........39 2. California Law........ seeseneeeesecesssecseneeeseeeeseaeeesnss44 D. APPLICATION OF THE LAW TO THE INSTANT CASE.ou. ecccccccccecesscsssecesececstseseatstenasseeess48 (ii) Il. THE TRIAL COURT VIOLATED APPELLANT’S RIGHT TO DUE PROCESS OF LAW UNDER THE FIFTH AND FOURTEENTH AMENDMENTSTO THE UNITED STATES CONSTITUTION BY ALLOWING THE ADMISSION INTO EVIDENCE IN THE GUILT PHASE OF THE APPELLANT’S 1992 AND 1997 CONVICTIONS OF SEXUAL ASSAULT UPONNINA S. AND CURTISB............00000062 A. FACTUAL BACKGROUND.............ccccccesceseeseeees63 B. PROCEDURAL HISTORY.....0....cececccccscsseeeseeees60 C. GENERAL DISCUSSION OF THE LAW OF SECTION 1108.00.00... cccccccsceseeseeeeseestesesseesesaeenenees 68 D. APPLICATION OF LAW TO THE INSTANT CASE. oo.ccece ccsccccecseeseeseesessesseseseeeeeseeseeeessecaseeceeses74 E. DISCUSSION OF THE LAW OF SECTION VOU (D)..ccccecceecccsccesccssssecssseecssuesesssesessueessuccessessseseesecesan 82 It. APPELLANT’S RIGHTS TO DUE PROCESS OF LAW UNDER THE FIFTH AND FOURTEENTH AMENDMENTS OF THE UNITED STATES CONSTITUTION WERE VIOLATED BY THE TRIAL COURT’S REFUSAL TO ORDER DISCOVERY OF REQUESTED MATERIAL EVIDENCE............000000000. 86 A. PROCEDURAL AND FACTUAL SUMMARY......86 B. INTRODUCTIONTO ARGUMENT..............0.0..95 C. FSA WAS PART OF THE “PROSECUTION TEAM,” THEREFORE, THE PROSECUTION HAD THE OBLIGATION TO OBTAIN THE INFORMATION SOUGHT...ccceceeeeeeeees93 (iii) - D. ANY PUBLIC POLICY CONSIDERATIONS FAVOR DISCLOSURE.............cccscccccssssssecsstssesseeeeees 95 E. DUTIES OF PROSECUTOR TO REVEAL EXCULPATORY INFORMATION TO APPELLANT..000..cece cecccecsessseseesssessecsesesssvacsceeseneeeens 97 1. Discovery under the United States Comstitution..........ccccccccccscessesseccsescesseseseceeseees 99 2. Application of the Above Law to the Instant Cases...cccccccsecscesscessscsseseseecesteees 104 IV. APPELLANT WASDENIED HIS CONSTITUTIONAL RIGHTS UNDER THE CONFRONTATION CLAUSE OF THE SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATE’S CONSTITUTION PURSUANT TO THE UNITED STATE’S SUPREME COURTDECISION IN CRAWFORD V. WASHINGTON......0.c.c..ccccccssssssesvssssessscees 113 A. PROCEDURAL AND FACTUAL HISTORY........113 B. LEGAL ARGUMENTeceoseeceooeecoooooooooooceecceecccn. 114 V. THE PROSECUTOR VIOLATED APPELLANT’S RIGHT TO DUE PROCESS OF LAW BY IMPROPERLY MISLEADING HE JURY IN HER ARGUMENT...eccccececsessesssesescscsscavsnsvecsacavatstatsssesesessess 126 A. FACTUAL AND PROCEDURAL HISTORY......... 126 B. LEGAL ARGUMENT.....0.0..ccccccccccccesseccsessecsesees 121 (iv) VI. FORENSIC SCIENCE ASSOCIATESUSE OF THE IDENTIFILER STR TEST KIT WAS A NEW SCIENTIFIC PROCEDURE AND THE TRIAL COURT ERRED IN REFUSING TO GRANTA FIRST-PRONG KELLY/FRYE HEARING TO DETERMINE WHETHER THE USE OF SAID KIT WAS GENERALLY ACCEPTED IN THE SCIENTIFIC COMMUNITY THEREBY VIOLATING APPELLANT’S RIGHT TO DUE PROCESS OF LAW, A FAIR TRIAL, AND FAIR DETERMINATION OF GUILT AND PENALTY UNDER THE FIFTH, SIXTH, EIGHTH, AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION...................... 130 A. INTRODUCTION.000. ocecccccccsccssecessessecsssssessceseees 130 B. PROCEDURAL SUMMARYo.oo. occcccccccsccscsceosesees 131 C. LEGAL ARGUMENT....0...occccccccccscccccssessscesereceeces 134 VIL. THE TRIAL COURT VIOLATED APPELLANTS RIGHT TO DUE PROCESS OF LAW,A FAIR TRIAL AND RIGHT TO A FAIR DETERMINATION OF GUILT AND PENALTY BY ALLOWING THE PROSECUTOR TO PRESENT EVIDENCE THAT APPELLANT WAS DEFINITELY THE SOURCE OF THE SPERM FOUND INSIDE CANNIE BULLOCK’S BODY..........cccccccccccccccccoscs 136 A. FACTUAL AND PROCEDURAL SUMMARY......136 B. LEGAL ARGUMENT...eccccccccccccssccscccesseseceeeees 137 PENALTY PHASE ARGUMENTS..0000oooocccccccccccccsseseseecseceess 14] VU. DUE TO THE TRIAL COURT’S IMPROPER INSTRUCTION TO THE JURY PANEL, APPELLANT WASDEPRIVEDOFHIS RIGHT TO A FAIR DETERMINATION OF THE PENALTY UNDER THE EIGHTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION...................... 14] (v) A. INTRODUCTION....0...ccccccccccesscscssssscececeeseceesecseans 14] B. FACTUAL AND PROCEDURAL SUMMARY......142 C. LEGAL DISCUSSION.....0....cccceecccecseseseeeteetereseees 143 Ix. APPELLANT’S RIGHT TO DUE PROCESS OF LAW, A FAIR TRIAL, AND REASONABLE DETERMINATION OF PENALTY PURSUANTTO THE FIFTH, SIXTH, EIGHTH AND FOURTEENTH AMENDMENTSTO THE UNITED STATES CONSTITUTION WERE . VIOLATED BY THE COURT’S ERRORIN ADMITTING EVIDENCE OF NONSTATUTORY AGGRAVATIONIN THE FORM OF APPELLANT’S PRIOR ACTS OF SEXUAL TOUCHING...cceccceccsceseees 146 A. FACTUAL SUMMARY.........0..ccceceeeeeeeseesaseeeseees 147 B. DISCUSSION OF LAW OF STATUTORY FACTORSIN AGGRAVATION...........cccccseceseeeeeees 147 C. APPLICATION OF LAW TO THE FACTSOF THE INSTANT CASE..0oootccc eecesesseeeseecesesseenesescsesvacenees 150 X. THE TRIAL COURT DENIED APPELLANT DUE PROCESS OF LAW WHENIT INSTRUCTED THE JURY THAT THE IMPACT OF APPELLANT’S EXECUTION ON THE DEFENDANT’S FAMILY MEMBERS SHOULD BE DISREGARDED UNLESSIT . ILLUMINATES SOMEPOSITIVE QUALITY OF THE DEFENDANT’S BACKGROUND OR CHARACTER.......... 154 A. FACTUAL SUMMARY..........cccccccccessecseseeeeeeeeeees 154 B. LEGAL ARGUMENT...cccccccccecscsecesecceseseseeees 155 1. This Court Should Reconsiderits Holding In People v. OCHO. ...cccccccccccccccccecscsscsscecetsceusesseses 155 (vi) 2. Precluding Appellant’s Jury From Considering the Impactof his Execution Upon His Family Violated the Eighth Amendmentto the United States Constitution ...0..0.0.0..00ccccccccccccscseseeeceeseees 156 XI. APPELLANT’S RIGHT TO DUE PROCESS OF LAW, A FAIR TRIAL, REASONABLE DETERMINATION OF PENALTY AND FREEDOM OF EXPRESSION PURSUANTTO THE FIFTH, SIXTH, EIGHTH AND FOURTEENTH AMENDMENTSTO THE UNITED STATES CONSTITUTION WERE VIOLATED BY THE COURT’S ERROR IN ADMITTING EVIDENCE OF NONSTATUTORY AGGRAVATIONIN THE FORM OF APPELLANT’S THREAT AT A PRISON ANGER MANAGEMENTSESSION TO KILL A DEPUTY PROSECUTOR... cccccccccccsssesssssssssseesacstsessasaeavavassessecseen 158 A. PROCEDURAL AND FACTUAL HISTORY......... 158 B. LEGAL ARGUMENT.....0.0..0.cccccccccccscsesesesscssseseeessees 160 CALIFORNIA’S DEATH PENALTY STATUTE AS INTERPRETED BY THIS COURT AND APPLIED AT APPELLANT’S TRIAL, VIOLATES THE UNITED STATES CONSTITUTION....0...0.cccccccccsccsccessesessecsssscsecscceveeees 163 XII. APPELLANT’S DEATH PENALTY SENTENCEIS INVALID BECAUSE SECTION190 .2 IS IMPERMISSIBLY BROAD 200iccee cee escssesesecsussvessusevevsutatscstsusacesstevevevensees 163 XU. APPELLANT’S DEATH PENALTYIS INVALID BECAUSE§190.3(a) AS APPLIED ALLOWS ARBITRARY AND CAPRICIOUS IMPOSITION OF DEATH,IN VIOLATION OF THE FIFTH, SIXTH, EIGHTH AND FOURTEENTH AMENDMENTSTO THE UNITED STATES CONSTITUTION.2.0... cceccecccccsssscsescssssecssstsesessessseseevsveseeeees 165 (vii) XIV. CALIFORNIA’S DEATH PENALTY STATUTE CONTAINS NO SAFEGUARDS TO AVOID ARBITRARY OR CAPRICIOUS SENTENCING, AND DEPRIVES APPELLANTOF THE RIGHT TO A JURY TRIAL ON EACH ELEMENTOFA CAPITAL CRIME:IT THEREFORE VIOLATESTHE FIFTH,SIXTH, EIGHTH, AND FOURTEENTH AMENDMENTSTO THE UNITED STATES CONSTITUTION.....0..0..c-ccccccccccccecee- 166 INTRODUCTION...00.o.cccccccccecccccsssssssesessesesesesrseseescees 166 A. BEYOND A REASONABLE DOUBTIS THE APPROPRIATE BURDEN OF PROOF FOR FACTORS RELIED ON TO IMPOSEA DEATH SENTENCE, FOR FINDING THAT AGGRAVATING FACTORS OUTWEIGH MITIGATING FACTORS, AND FOR FINDING THAT DEATHIS THE APPROPRIATE SENTENCE..uo0...ccccccccccscccccccsssssceseee 167 B. EVEN IF PROOF BEYOND A REASONABLE DOUBT WERE NOT THE CONSTITUTIONALLY REQUIRED BURDENFORFINDING (1) THAT AN AGGRAVATING FACTOREXISTS, (2) THAT THE AGGRAVATING FACTORS OUTWEIGH THE MITIGATING FACTORS, AND (3) THAT DEATH IS THE APPROPRIATE SENTENCE, PROOF BY A PREPONDERANCEOF THE EVIDENCE WOULD BE CONSTITUTIONALLY COMPELLED AS TO EACH SUCH FINDING...0..0.o..coccccccccscccssecseecceese. 169 C. THE TRIAL COURT’S FAILURE TO INSTRUCT THE JURY ON ANY PENALTY PHASE BURDEN OF PROOF VIOLATED APPELLANT’S CONSTITUTIONAL RIGHTS TO DUE PROCESS AND EQUAL PROTECTION OF THE LAWS AND HIS RIGHT NOT TO BE SUBJECTED TO CRUEL AND UNUSUAL PUNISHMENT...ccccccccccssccsesesees 170 (viii) D. CALIFORNIA LAW VIOLATESTHE SIXTH, EIGHTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION BY FAILING TO REQUIRE UNANIMOUS JURY AGREEMENT ON AGGRAVATING FACTORG....... 171 E. CALIFORNIA LAW VIOLATESTHEFIFTH, SIXTH, EIGHTH AND FOURTEENTH AMENDMENTSTO THE UNITED STATES CONSTITUTION BY FAILING TO REQUIRE THAT THE JURY BASE ANY DEATH SENTENCE ON WRITTEN FINDINGS REGARDING AGGRAVATING FACTORS..........ccccccccsscssseceseeeees 172 F. THE CALIFORNIA DEATH PENALTY STATUTE AS INTERPRETED BY THE CALIFORNIA SUPREME COURT FORBIDS INTER-CASE PROPORTIONALITY REVIEW, THEREBY GUARANTEEING ARBITRARY, DISCRIMINATORY, OR DISPROPORTIONATE IMPOSITIONS OF THE DEATH PENALTY...eceeceseesteeeeseseesene 72 G. IN THE PENALTY PHASE THE PROSECUTION MAY NOT RELY ON UNADJUDICATED CRIMINAL ACTIVITY; FUTHER, EVENIF IT WERE CONSTITUTIONALLY PERMISSIBLE FOR THE PROSECUTORTO DO SO, SUCH ALLEGED CRIMINAL ACTIVITY COULD NOT CONSTITUTIONALLY SERVEAS FACTORIN AGGRAVATION UNLESS FOUNDTOBE TRUE BEYOND A REASONABLE DOUBT BY A UNANIMOUS JURY 000. eeeceececcccecessesseescesesetstseeesees 173 H. THE JUROR’S USE OF RESTRICTIVE ADJECTIVES IN THE LIST OF POTENTIAL MITIGATING FACTORS IMPERMISSIBLY ACTED AS BARRIERS TO CONSIDERATION OF MITIGATION BY APPELLANT’S JURY............ 174 (ix) J. CALIFORNIA LAW THAT GRANTS UNBRIDLED DISCRETION TO THE PROSECUTOR COMPOUNDSTHE EFFECTS OF VAGUENESS AND ARBITRARINESS INHERENT ON THE FACE OF THE CALIFORNIA STATUTORY SCHEME........0.ccccc 175 XV. EVEN IF THE ABSENCE OF THE PREVIOUSLY ADDRESSED PROCEDURAL SAFEGUARDSDID NOT RENDER CALIFORNIA’S DEATH PENALTY SCHEME CONSTITUTIONALLY INADEQUATE TO ENSURE RELIABILITY AND GUARD AGAINST ARBITRARY CAPITAL SENTENCING, THE DENIAL OF THOSE SAFEGUARDS TO CAPITAL DEFENDANTS VIOLATES THE CONSTITUTIONAL GUARANTEE OF EQUAL PROTECTION OF THE LAWS....0.....cccccccccccscesseseseseesseeees 176 XVI. CALIFORNIA’S USE OF THE DEATH PENALTY AS A REGULAR FORM OF PUNISHMENT FALLS SHORT OF INTERNATIONAL NORMS OF HUMANITY AND DECENCY, AND VIOLATES THE EIGHTH AND FOURTEENTH AMENDMENTGB........ 176 XVI. THE CUMULATIVE EFFECT OF GUILT AND PENALTY PHASE ERRORS WASPREJUDICIAL....177 CONCLUSION... ceeccecccsescesscsscscsssessssavesssevststssssssesnsessnees 179 CERTIFICATE OF COMPLIANCE...ccccccccccscscsseesseeseees 180 (x) TABLE OF CONTENTS CONSTITUTIONAL AUTHORITY Amendment Vo...eccesecssessscsscesecsecsescsscsscssssssseseceaseaseseens venaeeeeens in passim Amendment VI...eecccessecssssesesessescsscssessesseseees | boseseseceeeeeceserenseees in passim Amendment VID...cccececssscscssssesesescesessesesesscsesssscssvsesenaveceeeaes in passim Amendment XIVuo.sec ececsccsesscssesesssseesececsesscssscsessessvacsusaeseeanenees in passim in passim UNITED STATES SUPREME COURT AUTHORITY: Apprendi v. New Jersey (2000) 530 U.S. 466........ccccecseeceeeeeees 166,167 Banksv. Dretke (2004) 540 U.S. 668.0... ..cccccececcceceesccesessccsseeseensees 118 Barker v. Wingo (1972) 407 U.S. 514....cecccccsccscecseeseseseesesetseeseaes42, 43 Berger v. United States(1935) 295 U.S. 78.....cccecccscssececcsecesseeeseseens 128 Blakely v. Washington (2004) 542 U.S. 296.0... ccccsseesessesseeseeeeeees 166, 172 Blystone v. Pennsylvania (1990) 494 ULS. 29...ccccececeeseeseeeececees 145 Boyd v. United States (1926) 271 U.S. 104... cceccccssesseceeeseeersees 145 Boydev. California ( 1990) AD4 US. 310.eeeecseeseeseeenecteeenesenesseessees 142,145 (xi) Brady v. Maryland (1963) 373 U.S. 83 ...cccccccsscscsssesesessesssesees in passim Bullcoming v. New Mexico (2011) 131 S.Ct. 2705....ccecccccssscccessseees 117, 123 124 Caldwell v. Mississippi (1985) 472 U.S. 320seseeueeeeseeeteneeceaneeeneeeesseess 129 Chapman v. California (1986) 386 U.S. 18....ccccccscssecececesesseecsees in passim Connelly v. DeChristoforo (1974) 416 U.S. 637 ....ccccccessssssssssscseseees 129 Crawford v. Washington (2004) 541 U.S. 36.0...ccccccesesscsescesescsseseee 116,121, 122. Cunningham v. California (2007) 549 U.S. 270... .cecccesssssseseseeseseeees 166,171 Daubert v. Merrell Dow Pharmaceuticals, Inc. (1996) S09 U.S. S79... ccceccsetssseceeeeesenesssessscescsecsesececsssscevsctecesevacsenssacaesesteasaes 134 Davis v. Washington (2006) 547 U.S. 813 .....ccecssescsscscescessessscessscseces 124 District Attorey’s Office for the Third Administrative District v. Osborne (2009) 557 U.S. 52.....cccccsccessssssssessesesteescsescerteceeaes 96 Doggett v. United States (1992) 505 U.S. 647... ceccscsscsscscesesecsesees4] Eddings v. Oklahoma ( 1982) 455 U.S. 104... eeeeceeeeesstessseseessnen 149 Furman v. Georgia (1972) 408 U.S. 238......ccccscsscsssssscesssesssescsseseees 163, 176 Giglio v. United States (1972) 405 U.S. 150... ccccsessssescsecsssecseseses 106 Godfrey v. Georgia (1980) 446 U.S. 420...ccccescecseseeeseseseseees 163 (xii) Gregg v. Georgia (1976) 428 U.S. 153... cccccscsscecceceeceeeseeessessene 172 Hicks v. Oklahoma (1980) 447 U.S. 342... cccccsssssccsssssesseseserssecerers 153 Hilton v. Guyot (1895) 159 U.S. 113 ..ccceccesesesseseccsssssseessssesseseeees 177 In re Winship (1970) 397 U.S. 358....ccccccccceseseeseeceseeeeees beeaseeesneeees 170 Kyles v. Whitley (1995) 514 U.S. 419.eeeceecesceeeesseenrens in passim Lockett v. Ohio (1978) 438 U.S. 586.......ccccccssssesesssecssssessesssesseeees 174 Martin v. Waddell’s Lessee (1842) 41 U.S. 367...ucecececeeeseeseeeeees 177 McDaniel v. Brown (2010) 558 U.S. 120.....cccccceesceesseeseeeceeceeeees 139 Melendez-Diaz v. Massachusetts (2009) 541 U.S. 305.0... 123 Miller v. United States (1871) 78 U.S. 268.0... cececcecccesceseseececeeeeees 177 Mills v. Maryland (1988) 4486 U.S. 367.....ccccccccsessesccsseseeeseeseeeesees 170, 174 Mongev. California (1998) 524 U.S. 721iecccccccccssssssssesseceeneesees 176 Napuev.ILlinois (1959) 360 U.S. 264.00... cccccccsceccecseeeseesseeeesesees 105 Ohio v. Roberts (1980) 448 U.S. 56.....cceccccccesssssseseeseesseseseesescensees 121, 122 Payne v. Tennessee (1991) 501 U.S. 808...ccccesesescseceereeeeeeeee 157 Pulley v. Harris (1984) 465 U.S. 367.00... ccccccsescsscseseseceessseeseecseveseevaes 172 Ring v. Arizona (2002) 536 U.S. 420.00... cccccsccsessecsssssscesseeseesessesees 166, 169 170 Roper v. Simmons (2005) 543 U.S. 551i cccccessscseessessessessesssssstsesees 177 Shantosky v. Kramer (1982) 455 U.S. 745 ....cccccecccsscssessccsseeeseseseres 170 (xiii) Skipper v. South Carolina (1986) 476 U.S. 1, Sccccccccccccsesesecececececeee. 156, 157 Smith v. Texas (2004) 543 U.S. 37.o.cecceccccccssecsscscssscessesesescssessveseesees 157 Strickler v Green (1999) 527 U.S. 263 .....ccecccsssscssssssesesesssseseserceseceeseees 105 Stringer v. Black (1992) 503 U.S. 222..oocvcccssscsssssssecssssevesececeseeececece, 163 Taylor v. Kentucky (1978) 436 U.S. 478......cccccsssscscscscsessssesssesseseeececees 178 Tennard v. Dretke (2004) 542 U.S. 274....eecccesssssststststnsntnssee 157 Townsendv. Sain (1963) 372 U.S. 293... ccsecssssssescssssssesecseseseeseccecees 172 Tuileapa v. California (1994) 512 U.S. 967....ccccscsscsccssssscsseesseeeee 169,172 United States v. Agurs (1976) 427 U.S. 97 .o.cccccscsscseccsssesessecesereeees 104,105 United States v. Bagley (1985) 473 U.S. 667 ..cccccccccccsscssssesececesesecee 104-106, 110, 117 United States v. Lovasco (1977) 431 U.S. 783.ccccccccccseccecsseceeeesccoess-n.42, 43 United States v. Marion (1971) 404 U.S. 307. .ccccccccccscsccescsecsesececececees40, 41 United States v. Young (1985) 470 U.S. Liccccccccccssscccssssesecssssesececesees 130 Vitek v. Jones (1980) 445 U.S. 480....cccccccesccessssesesesscesscscssecesesee 153 Woodsum v. North Carolina (1976) 428 U.S. 280...cccccccccccesesesesecceeees 176 Zant v. Stephens (1983) 402 U.S. 862...cceccscssesccsssssesssessecseccsssereccsssece 149 OTHER CASE AUTHORITY: Barnett v. Superior Court (2010) 50 Cal.4th 890 ....c.ccccsccccccseseseseceeeees 109 Beam v.Paskett (9 Cir. 1993) 3 F.3d 13 QL eccccccsccccscccescssecceceecececcesees. 152 (xiv) Bortin v. Superior Court (1976) 64 Cal.App.3d 873......ccccccssssccssescsees99 Brownv. Farwell (9" Cir. 2008) 525 F.3d 787... eccccccesccccceseseeesees 137, 138 Davis v. Zant (11" Cir. 1994) 36 F.3d 1538... .ccccssecssssessesccsesseesessees 129 Farrell L. v. Superior Court (1998) 203 Cal.App.3d 521.0...cece. 162 Frank v. Superior Court (1989) 48 Cal.3d 632......ceccccssssscescesesescesceee 84 Frye v. United States (D.C. Cir. 1923) 29 F. 1013 ...cccccccccccscesseeees 134 - Garcia v. Superior Court (1984) 163 Cal.App.3d 148.0.eee49,51 Gonzalez v. Wong (9" Cir. 2011) 667 F3d 965 ..ccccccccccccsesecceseseseseeee 109, 128 Hilton v. Guyot (1895) 159 U.S. U3 ccccccssessccssecsssusecesseeeeeeece 177 Ibarra v. Municipal Court (1984) 162 Cal.App.3d 853......ccceccceeeseee49 In re Brown a 976) 17 Cal.3d 873.....ccccccccscsscsssssccsssesesceceeatescscseeeees98, 99 In re Ferguson (1971) 5 Cal.3d 535 ....ccccccccesceccsscsscssesseesscssesesesess 103 In re Jackson (1992) 3 Cal.4th 578.0.....cccccccscsscecescssccesecesesseseseess 161 In re Marquez (1992) 1 Cal.4th 584.0.cccccsscsceseesecceseecseseesseas 178 In re Sassounian (1995) 9 Cal.4th 535...ceecsccsscscceseceseseeseesese 104 Izazaga v. Superior Court (1991) 54 Cal.4th 356.0....ccccccceccssscesceeeese 103 Lambright v. Stewart (9" Cir. 1999) 191 F.3d 1181.cccesecsseeseseeeees 152 Myers v. Yist (9" Cir, 1990) 897 F.2d 417... cccccssccsessessessssestesseseevees 170 Penney v. Superior Court (1972) 28 Cal.App.3d 941....ccceeeeeeeee47 (xv) People v. Abilez (2007) 41 Cal4th 472.0... ccccccsccssscessecssscccecseeseces72, 73, 74, 75, 77 People v. Adcox (1988) 47 Cal.3d 207... cceccsscssscssssesessseesesecececese 146, 175 People v. Archerd (1970) 3 Cal.3d 615..0..c..cccccsecseeesescecusnsee45, 48, 52, 53 People v. Axell (1991) 235 CalApp.3d 836..0...c..cccccesssssesssesseesssesees 112 People v. Avila (2006) 38 Cal4th 491 ....ccccccccccsessscsecessscssseseacsees 100, 101 People v. Bacigalupo (1993) 6 Cal.4th 857..0..c.cccccccscssssssessesecseseeees 163 People v. Balcom (1994) 7 Cal.4th 414.00. .cccccececessssssessessseeees16, 83 People v. Barney (1992) 8 CalApp.4th 798.......cccccccesscsssscssseseneeees 135 People v. Benemore (2000) 22 Cal.4th 809.....0cccccccsesesecsesescseesees 155 People v. Blair (2005) 36 Cal.4th 686........ccccccccsececcsessesesseseseeeees 150 People v. Boyd (1985) 38 Cal.3d 762.0... .ececcsssssceseescsssseceseseseeees 147, 150 People v. Brown (1985) 40 Cal.3d 5120... .occcccccsccescesssecsecescseseees 142, 143, 144, 145, 155 People v. Burgener (1986) 41 Cal.3d 505.0... cciecsscsscssescsecesesecsees 143 People v. Burns (1987) 189 Cal.App.3d 734......cccccccsssssecseseessees79 People v. Caitlin (2001) 26 Cal.4th 81] .cccccccccccscscsesessesessees esssseeseen45, 49 People v. Clark (1993) 5 Cal.4th 950.......ccccsscseesesecsescseesesesesens 152 People v. Cooper (1991) 53 Cal.3d 771ow...ecececccssseesscsssssescesseceees 144 People v. Dillon (1984) 34 Cal.4th 441... ccccccsscsecseecesceseeeseees 164 (xvi) People v. Easely (1983) 34 Cal.3d 858. ..cccccccccccccscccssssesesecsececeseceees 149 People v. Escudero (2010) 183 Cal.App.4th 302....ccccccccscccccsesssescesees 72 People v. Ewoldt (1994) 7 Cal.4th 389... cccccsccccscssccssessssecsesecseeeees 76, 83 People v. Falsetta (1999) 21 Cal.4th 903.0... ccccesscsssecsscecssscsceseseseees65, 68, 69, 70 People v. Fiero (1991) 1 Cal.4th 173.0... cccesscsseccsessecsesssesseesees 129 People v. Garcia (1999) 21 Cal.4th Liccciccccccccsecsscssscsescsesesecesesesees 156 People v. Hannon (1977) 19 Cal.3d DBBeececcccteceeseeteteeesesesetseees44, 46 People v. Harris (1998) 60 Cal.App.4th 727.......cccccsssssssssssscesseeseees 70, 78, 79, 80 People v. Hill (1984) 37 Cal.3d 491........stiessseeseseeeseearensecseeneeneeneenaeees 60 People v. Hill (2001) 89 CalApp.4th 48......0ccccccccccscsesesesescscereses 113 People v. Hillhouse (2002) 27 Cal.4th 469.......cccccccccccccccssseccecseseceeeee164 People v. Hollie (2010) 180 Cal.App.4th 1262.00... c.cccceccsssssesesesscoeceee 73 | People v. Holt (1984) 37 Cal.4th 436.0... ccccccesesesessecseserersseceees 178 People v. Horning (2004) 34 Cal4th 871 ...ccccccccecssssssssssescseseesese.49,60 People v. Hughes (1970) 38 Cal.App.3d 670 .ccccccccssssscssseccseeeeeeeeeeecee 51, 57 People v. Kasim (1997) 56 Cal.App.4th 1360......ccccccccessssccsesscsceseseees 105 People v. Kelly (1976) 17 Cal.3d 24.0.0 cccccccsssscssscessssscsstssecseseceesess 92, 110, 134 People v. Kipp (2001) 26 Cal.4th 1100.0... ccesssssssescccssessecseeseseeees 160 People v. Jackson (2008) 163 Cal.App.3d 313............seteeeecseeeeaeeeseees 135 (xvii) People v. Jenkins (2000) 22 Cal.4th 900.0... .cccccesessssecssessssecessececsees 96 People v. Loy (2011) 52 Cal.4th 46...ccccccccccccsssssesscsssesssscscceeveees70, 71, 72, 75 People v. Lawley (2002) 27 Cal.4th 102.....ccccccscscsssesescssseseseseeseess 129 People v. Leahy (1994) 8 Cal.4th 587.0... .ccccccccsssssscssscesecceccscscecsecesee 134, 135 People v. Luttenberger (1990) 50 Cal.3d Lic.ecccccsccssssescccsescesesseceeses 100 People v. Martinez (2000) 22 Cal4th 750.0... cccccssssesescsseseessserees46 People v. Medina (1995) 11 Cal.4th 694.00. cccccccsccsccscssesesseceeseseee 171 People v. Memro (1985) 38 Cal.3d 658......cccccccccsssessssecessseccssceseeseree 95 People v. Miramontes (2010) 189 Cal.App.4th L085....ccccccccsesceeeees72 People v. Morales (1989) 48 Cal.3d 527.0... cccecccessssssscscscssessecseesees 164 People v. Morris (1988) 46 Cal.3d Lo.icccccccccccsescsescsecessesssesseseesees49 People v. Morrison (2004) 34 Cal.4th 689......ccccccccccccssccsssssseseceseeeees 17] People v. Murtishaw (1989) 48 Cal.3d 1001... .cccccscssscscsescsssesceees 142, 145 People v. Nelson (2008) 43 Cal.4th 1242.0.0.0occcccccccssssstscsesesescsees45-48, 61 People v. Ochoa (1998) 19 Cal.4th 353... ccccccscsssessescscscesseseeseees 155 People v. Ortiz (1979) 95 Cal.App.3d 926......cccecsccessseseees beveseeeaee 148 People v. Pellegrino (1978) 86 Cal.App.3d 766.......ccccccscscsesssseseee.45, 51 People v. Prieto (2003) 30 Cal.4th 226.00... cccccccssssecsssscescssessssesseces 171 People v. Raley (1992) 2 Cal.4th 870..0...ccccccccsscisssssscscescssesceceececes 152 (xviii) People v. Ramriez (1990) 50 Cal.3d 1158......tccceeeescesesesseseeeee 161 People v. Robbins (1988) 45 Cal.3d 867.......ccccecccsecessesececeeeessesseees 83 People v. Robinson (1995) 31 Cal.App.4th 494.000.99 People v. Rodriguez (1986) 42 Cal.3d 730.....c.cccccsscceecesesseeeeteees 161,162 People v. Roybal (1998) 19 Cal.4th 481 ....ccescccsssssccssssececsssseessssseee 111 People v. Salazar (2005) 35 Cal.4th 103 1a.seecseecseceeseerees 105 People v. Smithey (1999) 20 Cal4th 939.0... cccescsessesseeeteeneees 155 People v. Snow (2003) 30 Cal.4th 43...ccccsesscssessssesseesessssesens 168 People v. Superior Court (Barrett) (2000) 80 CalApp.4th 130S.........98 People v. Tuileapa (1992) 4 Cal.4th 569.00... ecceccecsscssscesseseseeees 169 People v. Venegas (1998) 18 Cal4th 47........cccccccscscsesesssseseeeees 93,97, 112 People v. Zapien (1993) 4 Cal4th 929.0... cccccccecscseessceseessesessseenes79 Pitchess v. Superior Court (1974) 11 Cal3d SB Lee eeeceesteceesseeeeenseeees 101 Robinson v. Superior Court (1978) 76 Cal.App.3d 873........ccccceee99 Sabariego v. Maverick (1888) 124 U.S. 261 eceeestensesenseeeeteaaseceeeseaaees 177 Scherling v. Superior Court (1978) 22 Cal.3d 493...eeeeeees47 United States v. Bluefield (9" Cir 2002) 312 F.3d 962.0... .ceceeseee 129 United States v. Chischilly (9 Cir. 1994) 30 F.3d 1147.139 United States v. Crooks (1 st Cir 1985) 766 B24 T cesesesseeecceesesssteees44 United States v. Feinburg (2d Cir. 1967) 388 F.2d 60.......... cece52, 56 (xix) United States v. Kohring (9" Cir. 2011) 637 F3d 895.....cccccccsssesesees 119 United States v. LePage (9" Cir. 2000) 231 F.3d 488.....cccecssscscseee 128 United States v. Mays (9" Cir. 1977) 549 F2d 670......cscscccccecseseesees44 United States v. Moran (9" Cir. 1985) 759 F2d 777. .cccccssscccsscseseeees44 United States v. Reyes (9" Cir. 2009) 577 F.3d 1069......ccccecccccseees 129 United States v. Shonubi (E.D.N.Y. 1995) 895 F.Supp. 460.......... 139 STATUTORY AUTHORITY California Evidence Code SECTION 352.0. ccececesescesccessececacessescsssessessececsacesceseesseacens in passim SECTION 1043 oo. eee ceeceeseesceeesetseseeersesecsscssessesvscsecsstevaveceneases 101 SCCTION LODieeeee eesseesseeessescsescsessescsecscsstscecseesenesees in passim SCCTION L108.eeeeseeseescseeeesseseesesessssesssecsscetevsevaceateeees in passim Wel. & Inst. Code SCCTION 827 oo. eeeeecsessscessencesesessescessssesecsesessesessssevsvscavsceavacseseenes 101 Section 828.0...cecevesesaeeesaeeeeaeeeseeseneeestaeneee Veseeeeseeeeeneeesees 101 Penal Code section 187... wiseeeeseeevseseseesseeseseeceseceetaseeseaseceeneteseeees 84 SCCTION 190.2.eeceeseesesseseesesececesssecsesessessssesvansueaseaseeas in passim Section 190.2 (@) (17)....cccccccescccscssssscsssscecesctsessssecereeseesecaesece 84 (xx) Section 190.3... ecseescsessssessessscsssesscecesvsecsesueesaeereseeaes in passim Section 1054... ceccccessssscsscscssesssesessesvseccesecstaeescsasacseees 87, 89,103 SECTION 1054.1ooecsecsssscesesesssssssssscscssscssccecsceseecaceatanacsesees 104 section 1054.7... aceeeeseceesnnseeveneneeeuseseesuaceseessasaneeeessuaeeesuersusecses67 OTHER AUTHORITY California Rules of Court 4.20 (b)....ccccccccccecessesescsesessesesees 169 California Rule of Court 4.414 (D)oo. eccceesecessessesseeesseecseseeaees 147 (xxi) IN THE SUPREME COURT OF THE STATE OF CALIFORNIA PEOPLE OF THE STATE OF ) §152737 CALIFORNIA ) ) Plaintiff/Respondent ) Contra Costa County ) 040292-5 VS. ) ) ) JOSEPH S. CORDOVA ) ) Defendant/Appellant ) APPELLANT’S OPENING BRIEF An Automatic Appeal from the Judgment ofthe Contra Costa superior Court, Honorable Peter L. Spinetta, Judge. STATEMENT OF THE CASE On March 2, 2004, an information wasfiled that charged appellant, Joseph Cordova, with the first degree murder of Cannie Melinda Bullock, on or about August 24-August 25, 1979, with the special circumstance allegations that the murder was committed while appellant was engaged in the commission or attempted commission of the crimes of rape and/or lewd and lascivious acts upon a child under the age of fourteen years (California Penal Code Sections 187, 190.2 (a) (17).) Jury selection began on December12, 2006 (7 CT 1805; 9 RT 2052 et seq) and the jury was empaneled on December20, 2006. (7 CT 1810; 12 RT 2701.) The prosecution commencedits case on January 8, 2007. (7 CT 1824; 13 RT 2915) and rested on January 22, 2007, subject to calling two additional witnesses whosearrival was delayed by bad weather. (7 CT 1831; 17 RT 3812.) The defense commencedits case that same day and rested on January 24, 2007. (7 CT 1840; 18 RT 4090.) On January 25, 2007, the jury was instructed and counsel gave their summations (7 CT 1952; 18 RT 4106.) The jury returned a guilty verdict the next day, also finding true both special circumstances. (7 CT 1853; 18 RT 4322 et seq.) The penalty phase ofthe trial commenced on February 5, 2007, with the prosecution resting the same day. (8 CT 2807; 19 RT 4479 et seq.) The defense commencedits penalty phase case the next day (19 RT 4568), with appellant testifying on his own behalf on February 7, 2007. (8 CT 2093; 20 RT 4775.) The defense rested on February 9, 2007. (8 CT 2095; 21 RT 5062.) The jury was instructed and closing arguments were presented on February 14, 2007 (8 CT 2096; 21 RT 5180), with the jury returning a death verdict on February 16, 2007. (8 CT 2098; 22 RT 5292) On May 11, 2007,the trial court denied appellant’s Motion to Modify, Motion for new Trial and Motion to Set aside the Verdict and sentenced appellant to death. (8 CT 2243; 22 RT 5309.) STATEMENT OF FACTS GUILT PHASE People’s Case 1979 Investigation of Crime A. Initial Investigation of the Crime On the night of August 24, 1979, eight-year-old Cannie Bullock was living with her mother, Linda, and Linda’s friend, Debbie Fisher, in a small house on DoverStreet in San Pablo. (13 RT 2940-2942.) It was a one bedroom home;Lindaslept in the single bedroom and Debbie and Cannie slept on a couchin the living room. (13 RT 2943.) Linda Bullock was a neglectful and inattentive mother. (13 RT 2940- 2942.) On that night, Linda and Debbie left Cannie alone in the Dover Street house while they went to a bar. The two womenleft the house at approximately 10:00 p.m., leaving Cannie asleep on the sofa bedin the living room. (13 RT 2942-2943.) They believed they locked the front door upon leaving the premises. (13 RT 2944.) Lindaleft the bar a short time before closing to return home, and Debbie left soon thereafter. Upon herarrival at the Dover Street house, Debbie saw Linda screaming that she couldn’t find “her baby.” (13 RT 2945.) The front gate of the house, which had been latched when the womenhadleft for the bar, was open, and the robe that Cannie had been wearing was foundin the house, stained with blood. (13 RT 2946.) There was no sign of forced entry into the home. (14 RT 3114.) The two womensearched for Cannie but could not find her. After some delay, the police were called. They found Cannie’s body, covered by a bed spread, in the small backyard of the house. (13 RT 2947; 14 RT 3096.) Bruising was evident on Cannie’s shoulders and neck and there was also bruising and blood in her vaginal area. (14 RT 3100-3102.) Linda was generally uncooperative with the police (14 RT 3119), but did tell them she often had sex with different men in her bedroom. She claimed that she did not have sex with anyone the night of the murderor the night before. (13 RT 2976; 14 RT 3004.) While conducting their initial on-scene investigation of the murder, the police found a pendant in the form ofthe zodiac symbolSagittarius and a sewing machine manual in the house. Debbie told the police that she did not recognize either of these two items. (14 RT 3113.) B. Gathering of Forensic Evidence At the DoverSt. house, the police took photos and collected some physical evidence. (13 RT 3024 et seq.) Richard Schorr, a criminalist with the Contra Costa County Sheriff's Laboratory, went to the scene of the murder on August 25, 1979. (14 RT 3154.) He took various photos and measurements and did sketches, and he collected about 25 items of evidence, including the victim’s robe. (14 RT 3156 et seq.) C. The Autopsy Dr. George Bolduc conducted the autopsy of Cannie Bullock and determined that Cannie died of asphyxiation secondary to manual strangulation. (14 RT 3246.) He reported observing severe bruising, tearing and bleeding around her pouchette, the portion ofthe female genitalia on the lower end of the vagina. (14 RT 3251-3252.) Dissection of the vagina revealed more bruising, which, in his opinion, indicated that the victim was raped before she was murdered. (14 RT 3253.) Using swabs, Dr. Bolduc obtained evidentiary samples from Cannie’s vagina, anus, and mouth and turned these over to Detective Bennett, who attended the autopsy. Detective Bennett, in turn, gave the samples to Richard Schorr. (13 RT 3054 et seq; 14 RT 3257-3260.) Dr. Bolductestified that he believed he gathered the semen evidence by inserting the swab full length into the vagina and movingit around toget. a good specimen. He furthered testified that he took caution to make sure that an inserted swab did not touch any other part of the body. (14 RT 3257- 3260.) Dr. Bolduc stated that he did not observe any semen on Cannie’s body, although his autopsy report made no mention of this one way or the other. (15 RT 3264; 3356.) He admitted that this wasthe first autopsy in which he performed this swabbing procedure and that he had no independent recollection as to the swabbing methodheactually used in this case. (14 RT 3260.) Upon cross-examination,it was revealed that sometimeafter the autopsy, Dr. Bolduc may havetold the police that he couldnotreally be sure whether the penetration occurred before or after Cannie’s death. (14 RT 3266-3267.) In addition, it was revealed that since the autopsy Dr. Bolduc had had a very checkered work history, had lied on his resume, and had been fired from a position due to his negligence in performing an autopsy procedure and destroying evidence. (14 RT 3274-78.) Dr. Bolduc also had spent time working for Federal Express and Kinkos, presumably because of his inability to get work as a pathologist. (14 RT 3274-3288.) In his current employmentas a pathologist, he was not allowed to work on murdercases. (14 RT 3289.) D. Processing of Forensic Evidence On August 28, 1979, Richard Schorr of the Contra Costa County Sheriff's Laboratory did some preliminary testing on the biological evidence recovered form the body of Cannie Bullock at the autopsy. (14 RT 3170.) Using the acid phosphatase screening test, he obtained a positive reaction for the presence of sperm on both the vaginal and rectal swabs. (bid.) A confirmatory test using choline, was positive for semen for the vaginal swab, butnotfor the rectal swab. (14 RT 3171.) Schorr then looked at the samples under the microscope and confirmed the presenceofintact spermatozoa on both the vaginal and rectal samples. (/bid.) The swabs were then returned to the custody ofthe San Pablo Police Department. (14 RT 3174.) E. Police Interviews of William Flores During a canvass of the area conducted immediately after the crime, Detective Bennett contacted William Flores, who lived with his mother in a house near the one occupied by Linda and Cannie Bullock. (14 RT 3126- 3 127.) Flores told Detective Bennett that at about 7:00 on the evening before the murder, he saw a male on motorcycle drop off a female in front of the Bullock house. He could not be sure if the woman was Linda Bullock. bid.) Flores said he knew Cannie Bullock. He felt she was too friendly, and this made him nervous. (14 RT 3127) Flores also told the police that in the early morning hours ofAugust 25, 2011, he’d been watching Creature Features on Channel 5. He then wentto his bedroom wherehe heard a voice from his back yard stating “you shouldn’t do that. You should leave her alone.” (14 RT 3127.) | Flores also knew that Cannie’s body had been foundin the backyard and not in the house. (14 RT 3127.) Detective Bennett noted that it was odd that Flores knew this because the police had sealed off the backyard as a crime scene, and his officers were very careful not to talk about the details of the case. (14 RT 3128.) Flores told Detective Bennett that the person whokilled the victim did it because he felt sorry for her and that the reason the body was moved to the backyard wasto fool the police into thinking she wasn’t killed in the house. (14 RT 3129.) Flores also stated that it was too bad that the person whokilled Cannie got away with it. bid.) The police indicated that Flores stopped talking to them when his mother walked over to see him. (/bid.) Detective Bennett talked to William Flores again on August 27, 1979. (14 RT 3130.) Flores told him that between 11:00 and 11:30 p.m. on August 24, 1979, he heard two male voices coming from the southeast corner ofhis rear yard. One voice said ““You shouldn’t have doneit.” The other said “You don’t suppose he heard us?” Flores told Detective Bennett that at that point a dog began to bark. He looked out a window, and thought he heard someone running. (14 RT 3130-3132.) Flores then suggested that the police check his backyard. (/bid.) The police did so and found some torn pieces of paperin a trash can. (14 RT 3132.) The pieces ofpaper seemed to be similar totorn pieces ofpaper that the police recovered during a consent search of the Flores backyard a few days before. (/bid.) Later, the police put the pieces ofpaper together and discovered that they. were all part of a single document. (14 RT 3132.) The document was a somewhat pathetic self-evaluation by Flores. It included a section entitled “goals.” One of goals listed was “correspondence course, vacuum and sewing machine repair.” (14 RT 3132-3133, 3139.) This was significant because ofthe sewing machine repair manual that had been found in Linda Bullock’s house after the homicide. (14 RT 3133.) F. 1996 Investigation of Crime From 1979 to 1996, the investigation ofthe case lay dormant. In April of 1996, Detective Mark Harrison, of the San Pablo Police Department, reopenedthe case in light of recent developments in the use of DNAfor identification. (15 RT 3331-3332.) Aware that serological evidence had been recoveredat the time of the autopsy, Detective Harrison felt that this case would be perfect for DNA testing should there ever be a knowndonor. (15 RT3332.) In April of 1996 he delivered vaginal and rectal swabs and someother evidentiary material to Mr. Schorr at the sheriff's laboratory. (14 RT 3177.) Mr. Schorr determined that there was sufficient DNA present for further DNA typing analysis. (14 RT 3177-3179.) Becausethe sheriffs laboratory could not do DNAanalysis at this point in time, he forwarded portions of the vaginal and deep vaginal swabs to Cellmark, a private laboratory, for further testing. (14 RT 3180-3181.) In 1996, there were two main techniques ofDNA profiling in forensic use: RFLP (restriction fragment length polymorphism) and PCR (polymerase chain reaction.) (15 RT 3436.) Schorr’s purpose in having DNAtesting done on the samples was to generate a DNA profile which | might be compared to the profiles ofknown suspects. ([bid.) The RFLP procedure required a relativelylarge biological sample. The PCR process in use at the time wasless discriminating than RFLPtesting, but had the advantage of being an effective procedure for obtaining profiles from very small or degraded DNA samples. (15 RT 3438.) Cellmark performed PCR 10 analysis on the samples received in this case and wasable to ascertain a genetic profile from both the sperm and non sperm fraction of the samples. (15 RT 3439; 3441-3447, 3450.) The only suspectat the time ofthis testing was William Flores, who had died. The San Pablo Police received permission from Flores’s sister to have his body exhumed. (15 RT 3338-3339.) Cellmark was able to obtain a PCR DNAprofile from a sample of Flores’s bone. (15 RT 3450-3453.) That profile was different from either profile obtained from the evidentiary samples obtained at the autopsy, and it excluded Flores as the source of the unidentified DNA.(15 RT 3453; 3456.) All the evidence not consumedin Cellmark’s 1996 analysis was returned by them to the Contra Costa County sheriff's laboratory in 1999. (16 RT 3597.) G. 2002-2004 STR Genetic Testing By 2002, the Contra Costa County Sheriffs Laboratory had acquired the equipment and personnel to conduct DNAtesting. On February 2, 2002, David Stockwell, the lead DNA analyst at the sheriff’s laboratory, received a request fro the San Pablo Police Department to conduct further DNA testing on specimens from this case. (16 RT 3601.) Stockwell tested the samples using the COfiler and Profilerkits which targeted 13 separate STR sites and one additional gender 11 discriminatory site. (16 RT 3624-3625.) He was successful in creating such a profile for both the non-sperm fraction and the sperm fraction (16 RT 3636-3637.) The profile of the non-sperm fraction was matchedto the known 13 site DNA profile of Cannie Bullock. (16 R 3638.) After the extracts were examined, they were returned to the San Pablo Police Department on April 23, 2002. (16 RT 3602.) Following the creation oftheDNA profile for the sperm fraction of the extracts taken from Cannie, Mr. Stockwell uploadedthat profile into the FBI’s CODIS database ofDNA samples taken from convicted offenders. (16 RT 3638.) Not long afterward, Mr. Stockwell was informed that a profile in the CODISdata base shared the same13 site profile as the one he had submitted from the Cannie Bullock case. (16 RT 3639.) The matching profile was that of appellant Joseph Cordova, who was then incarcerated in Colorado. (16 RT 3574-3576.) In May of2002 a Colorado judge signed a search warrant authorizing a draw ofMr. Cordova’s blood. (16 RT 3574-3577.) The blood taken from Mr. Cordova wasdelivered to Mr. Stockwell and in July, 2002 he created a DNAprofile from it in the same manneras he created the profile uploaded into the CODISsystem. (16 RT 3641-3642.) The profile created from Mr. Cordova’s blood matched the sperm fraction profile in the 12 Cannie Bullock case. (16 RT 3642.) Mr. Stockwell determined that one would expect to see Mr. Cordova’sprofile in 1 in 3.6 quintillion Hispanics, 1 in 3.1 quintillion African Americans, and | in 670 quadrillion Caucasians. (16 RT 3642.) Mr. Stockwell did two moretests at the request of the San Pablo Police Department. One was on a sample obtained from a vaginal smear taken at the autopsy. The tests were done in February and March of 2003. The results were the same as the 2002 tests. (16 RT 3645.) Thefinal test done by Mr. Stockwell was donein from Mayto July, 2004 with the evidentiary material that was taken from a deep vaginal swab. Theresults, again, were the same. (16 RT 3647.) In addition to the testing done by Mr. Stockwell, similar testing of samples from the autopsy was done by Alan Keelat Forensic Science Associates, a private forensic laboratory. (16 RT 3777.) Mr. Keel used a new test kit, the Identifiler, that tested alleles at 15 genomic sites as opposed to the 13 sites of the Cofiler and Profiler Plus kits. Mr. Keel also did DQ-alpha and genetic marker testing similar to that previously done in 1996, (16 RT 3779.) Theresults of the testing established that Mr. Cordova matchedthe profile of the sperm fraction from the autopsy samples. Keel calculatedthe statistical frequency for this profile as 1 in 13 billion trillion 13 for Hispanics, 1 in trillion trillion for African-Americans, and 1 in 134 trillion for Caucasians (16 RT 3783-3784.) Stockwell testified at Mr. Cordova’s trial that the state of the sperm fraction taken from the autopsy evidence wasconsistent with a fresh ejaculation into Cannie’s body no more than a few hoursbefore her death (16 RT 3654.) He based this opinion on the fact that spermatozoa have very fragile tails which detach from the sperm head very easily as they “swim” up the vaginal cavity. (16 RT 3652-3653.) Sperm with tails will exist in the living female body for no more than 8-10 hours before the tails drop off due to the constant motion. (16 RT 3653.) However, when the sperm is present in a dead female body, the lowered body temperature will cause the sperm to cease moving,so they retain their tails. (16 RT 3654.) Many intact sperm were present in the ejaculation in Cannie’s body, leading Mr. Stockwell to opine that the evidence was consistent with fresh ejaculation into a dead or dying body. Ubid.) Dr. Edward Blake, another DNA analyst, testified that the amount of sperm detected in the vaginal and rectal swabs taken at Cannie’s autopsy wasobjectively very large. This is consistent with an ejaculation into the vaginal cavity and the victim then not moving after that and at some time later that material being seized. (17 RT 3785.) 14 H. Statements of Appellant On July 18, 2002, Detective Von Millanich, from the San Pablo Police Department, visited Mr. Cordova and informed him of the court order for the blood draw. A phlebotomist was present to make the draw, and completed it without incident. (8 CT 2269-2270'; 14 RT 3313-3314, 16 RT 3574-3577.) _ Detective Von Millanich then informed Mr. Cordova of his Miranda rights, and Mr. Cordova respondedthat he understood each ofhis rights. (8 CT 2270-2271.) Without obtaining a formal waiver, Von Millanich questioned Mr. Cordova about the murder of Cannie Bullock. Mr. Cordova said that before moving to Colorado on New Years Day of 1980, he had lived most recently in the San Pablo area. (8 CT 2271.) He indicated that he used to frequent the local bars in San Pablo, including “Oscar’s.” (8 CT 2272.) Mr. Cordovasaid he left the San Pablo are for Canada in October of | 1979. (8 CT 2273.) In response to further questioning, he said remembered both Debbie Fisher and Linda Bullock. He also “vaguely remembered”her 1. The tape of the interview of appellant by Detective Millanich was playedto the jury but was not otherwise reported in the reporter’s transcript. (14 RT 3313- 3314.) The transcripts of this tape recording are part ofthe clerk’s transcript and are cited as such. 15 nine year old daughter. ([bid.) Von Millanvich then told Mr. Cordovathat he had a problem in that his seminal fluid had been foundin thelittle girl. (8 CT 2273.) Mr. Cordova responded bystating that he did not know “how that got there.” (8 CT 2274.) Mr. Cordovaalso related that he rememberedthat on a Friday night he had a one-night-stand with the girl’s mother at the Bullock house andleft to go to work that next morning. (8 CT 2275.) Mr. Cordovastated that he found out about the murder that Saturday night at a local bar. bid.) The detective informed Mr. Cordovathat the girl was raped and murdered. Mr. Cordova denied committing the crime. (8 CT 2276.) Mr. Cordova was again questioned six days later, this time by SmokeyKurtz, a Colorado State Prison investigator. (14 RT 3291 et seq.)’ He wasagain advised of his “Miranda”rights, which he acknowledged.(8 CT 2273.) When asked by Mr. Kurtz whether he wantedto talk, Mr. Cordovareplied it depended upon what the investigator wantedto talk about. (/bid). Investigator Kurtz asked Mr. Cordova about a Sagittarius pendant found at the crime scene. Mr. Cordova admitted that he was born under the sign of Sagittarius, but denied owning the pendant. (8 CT 2265- 2. The tape of the interview of appellant by Mr.. Kurtz was playedto the jury but was not otherwise reported in the reporter’s transcript. (14 Rt 3293.) The transcripts of this tape recording are part of the clerk’s transcript and are cited as such. - 16 2266.) In response to questioning, Mr. Cordova said again that he was with Linda Bullock on the Friday night before Cannie was murderedandthat he saw Cannie,alive, Saturday morning before he went to work. (8 CT 2266.) Mr. Cordovastated that while he was having sex with Linda in Linda’s bedroom, Cannie wasin the other room. (8 CT 2267.) He further stated that this was the only time that he had ever been at the Bullock house andthat he had no idea how his seminalfluid got into the girl. (/bid.) I. Evidence Code Section 1108 evidence At Mr. Cordova’s guilt trial, the prosecution presented evidence of two incidents involving sexual misconduct by Mr. Cordova. Nina Sharp testified that in 1992 she was 12 years of age and living in Lakewood, Colorado. (17 RT 3808.) At that time she was acquainted with Mr. Cordova, whom she knew as “Geezer,” as well as Mr. Cordova’s wife. (bid.) On September 26, 1992, she and her two-year-old brother were taken to the Cordova house to spend the night. She had never been to the house before. (17 RT 3809.) She went to bed alone, but was awakened by Joseph Cordova rubbing her chest and her “butt.” (17 RT 3810.) She told him to stop and he did, hugging her andtelling her that if shé told anyone about the 17 incident he would goto jail. Wbid.) When Mr. Cordovaleft the bedroom, Nina called her mother who came to the Cordova house and picked her up. Nina told her mother what happened andthe police werecalled. (17 RT 3810-3811.) On the evening ofNovember 22, 1997, Curtis Baker, then ten years ofage, attended a party in Denver, Colorado, with his father. (17 RT 3913.) Curtis went upstairs and fell asleep on a bed that he was sharing with a 19 year old girl, Pam, who wasa platonic friend. bid.) He was awakened by Mr. Cordova rubbing his back and his “butt.” (17 RT 3914.) Curtis jumped up and ran downstairsto tell his father, who took Curtis to the police station to fill out a report. (17 RT 3915.) Curtis also testified that Mr. Cordova had been drinking that evening. (17 RT 3916.) Mr. Cordova wasconvicted of attempted sexual assault on Nina Sharp and assault on Curtis Baker and certified copies of both convictions were entered into evidence. (17 RT 3811-3812.) Defense Case A.Scientific Testimony Keith Inman, a senior scientist from Forensic Analytical Science, a private laboratory, testified for the defense and rendered an opinion that Mr. 18 Cordova’s semen could have been transferred into Cannie Bullock’s body from the sheets on her mother’s bed. (17 RT 3921 et seq.) Mr. Inman examinedthe vaginal and rectal swabs and samples, plus several microscopic slides from prior analysis, as well as items of clothing and bedding from the scene of the crime. (17 RT 3926.) Hetestified that the semen in Cannie Bullock’s body could have been deposited there by means other than vaginal intercourse. (17 RT 3927.) Transfer could have occurred if an undiluted ejaculation onto an item, such as a bed sheet, later came into contact with the genital area of the victim and nothing occurred afterward that removed the semen.(/bid.) To support the possibility of such a transfer, Mr. Inman notedthat if the semen foundin this case had been deposited during a violent sexual assault there would be an expectation that a mixture of blood and semen would be observed on items such as someofthe bedding and Cannie’s robe. No semen waspresent on these items. (17 RT 3928-3931.) Mr. Inman found no evidence of rectal penetration. He said that the semen on the rectal swabs could be accounted for by either a blood/semen mixture dripping from the vagina, across the perineum andintothe rectal area or incident contact with a pure semen stain, unrelated to the attack. (17 RT 3935.) Mr. Inmanalso indicated that in a case of vaginal intercourse, 19 one would expectto find a relatively greater amount of semen in the vagina than the rectal area, unlike in this case. (17 RT 3935-3936.) Mr. Inmanalso stated that the finding of intact sperm with tails does not refute the theory that the transfer of semen to Cannie’s body could have been by an innocent means. (17 RT 3937-3938.) In summary, Mr. Inman stated that there was nothingin the state of the physical evidence that would refute the alternative hypothetical of a non-sexual, inadvertent transfer of semenin this case. (17 RT 3939.) Brent Turvey, a scientist from Forensic Solutions, also testified for the defense as to the viability of an alternate theory as to how Mr. Cordova’s sperm may have doneto be in Cannie’s body. (17 RT 3983 et seq.) Mr. Turvey reviewed thousands of pages ofreports and additional discovery in this case. (17 RT 3988.) From this review, he concludedthat the murder took place inside the Bullock home. (17 RT 3989.) He further stated that all ofthe conditions were present to support a theory that the sperm could have been transferred in the same way as described by Mr. Inman and that he knew of a case where such a transference actually did happen. He had described that case in one ofhis text books. (17 RT 3991- 3995.) Like Mr. Inman, Mr. Turvey stated that the absence of sperm cells in 20 "the bloodstains on Cannie’s robe and bedding supported the theory of inadvertenttransfer. (17 RT 3996.) He criticized the methods of evidence collection by the police and suggested that the medical examiner’s competencyor lack thereofmay have had an effect on the ultimate findings in this case. (17 RT 3998-3999.) Anticipating the testimony of the above two defense witnesses, the prosecutor addressed the unintentional transference theory in her case-in- chief. The prosecutor posited the following hypothetical to Mr. Stockwell: Let’s assume male & female have sexual intercourse, and the male ejaculates into adult — female. The adult female then has seepage from her vagina onto a surface such as a bed sheet. The child spendsat least a day in normal activity that an 8 year old child would engage in. The child then takes a bath or shower, changesclothes andis then at some point after that we’re now probably at least 14-16 hours later, the child is raped and strangled to death. The child is then drug out to the yard in the backyard through the house. Later the child is taken to the autopsy and the pathologist in getting swabs from the vagina somehow gets some ofthis cellular material onto the swabs (16 RT 3659-3660.) The prosecutor then asked Stockwell whether this hypothetical would account for the type and amount of sperm he observedin the evidence samples. (16 RT 3660.) Stockwell stated that it would not. First, he said, if there was seepage from another female’s vagina, one would 21 expect to find an indication of two sources of vaginal fluid in such a scenario, whereasin this case only one non-sperm fraction was detected. (16 RT 3660; 3663-3664.) Further, once drainage has taken place onto a bed sheetor similar substances, there would be a drying process and oncethestain is dried there would bevirtually no transfer of cellular material. Therefore, the time frame would have to be relatively abbreviated to get a liquid stain transfer to the girl. (16 RT 3660.) Stockwell also stated that even if there was a great deal of material transferred in the hypothetical inadvertenttransfer of sperm, bathing would remove the material from her external surfaces, and it would not have been " present at the autopsy to contaminate a vaginal sampling. (16 RT 3661.) In addition, because all four swabs prepared at the autopsy contained samples of sperm, for the defense hypothetical to be true all of these swabs would have to have been contaminated in the same way, which speaks against the defense hypothesis. (16 RT 3661.) B. Additional Evidence Regarding Third Party Culpability Linda Flores Smith wasthe sister of William Flores, who died in 1983 (18 RT 4046.) In 1979, her brother and mother wereliving at 2608 DoverSt., San Pablo. (/bid.) She became aware that someone had been 22 killed on DoverSt. a few months after the crime occurred. (18 RT 4048.) Detective Mark Harrison of the San Pablo Police Department, the officer who spoke with Linda Flores Smith in 1996, testified that at their first meeting Ms. Smith spontaneously asked him “is this about Bill”or something to that effect. (18 RT 4071.) Ms. Smith told Detective Harrison that her mother had two sewing machines, a Sears and a Singer, and she wasfairly certain that the sewing machine booklet found at the murder scene wasone that had belonged to her mother. (18 RT 4072.) Ms. Smith also told Detective Harrison that her mother told her about the killing about a week after it occurred. (18 RT 4073.) Ms. Smith also stated that she had learned from her motherthat Flores had come home the night ofthe homicide with a bloody shirt, and she had been unable to clean it so she burned it in an incinerator. (18 RT 4077.) She also said her mother had told her that when he committed suicide several years later Flores left a note saying “he was sorry for what he did.” (18 RT 4078.) PENALTY PHASE People’s Case A. Victim Impact Witnesses The People called two victim impact witnesses, Linda Bullock and Cannie’s uncle, Roy Bullock. Lindastated that after the death of her 23 daughter, she attempted suicide twice. (19 RT 4499.) Ms. Bullocktestified howterrible she felt about her daughter’s death, a feeling engendered, in part, because she did not properly take care of Cannie. Linda Bullock further stated that Cannie is now her “guardian angel’ who “takes care of her.” Her daughter’s death affects her every day. (19 RT 4554.) B. Evidence of Other Offenses Mr. Cordova wasarrested for possession of an operable sawed-off shotgun in 1977. (19 RT 4506; 4517.) A firearms expert testified as to the configuration and inherent dangers of such a weapon. (19 RT 4517.) In addition, the prosecution introduced evidence of a 1982 Colorado incident, which Mr. Cordova admitted hefired a rifle during an argument with his then-girlfriend, Janice. (19 RT 4547.) The prosecutor also introduced evidence of the convictions for possession of the sawed-off shotgun, for assault against Kelly Cordova, and a felony conviction for uttering false instruments. (19 RT 4538.) The prosecutor also relied on the convictions for sexual misconduct admitted in the guilt phase pursuant to Evidence Code section 1108. (19 RT 4539.) Appellant’s Case Mr. Cordova’s older brother, Abe, presented a slide show about 24 appellant’s life and the environment in which Mr. Cordova wasraised. Mr. Cordova wasborn in 1944, outside of the town of Trinidad, a mining and ranching community in southern Colorado. (20 RT 4572.) The Cordova family settled in Colorado in 1847. His mother’s side of the family were shepherds and his father’s side were carpenters. ([bid.) Mr. Cordova’s father was a coal miner and a deputy sheriff “up in the valley,” where approximately 10,000-12,000 people lived. (/bid. ) Mostly everyone in the area worked in the coal mines. Many ofthe children that Mr. Cordova knew worked for the ranchers when they were younger, turning to mining work when they were 15 or 16 years of age in order to help their families financially. Abe stated that his brother had a “good country life,” raising chickens and rabbits and doing chores around the home with the animals. (20 RT 4573.) Joe and his family left Colorado _ for California in 1959, and Abe remained behindto finish high school. (bid.) Upon graduation, Abe joined the Army. After being discharged in 1963, Abe joined his family in California. (/bid.) Mr. Cordova was knownin his family as “Junior.” Growing up, he appeared to be a happychild, “joyful all the time.” He did not get into any trouble while living in Colorado and never did anything “weird” with his sisters. Abe Cordova described his brother as a ‘jokester,” with a good 25 sense of humor. (20 RT 4578-4580.) Abealso described how when he and Cordova were young,his father would take them to the mines and show them how cold anddirty it was and how they should aspire to something better. (20 RT 4581-4582.) Abe described Mr. Cordova’s childhood as “wholesome”and “uneventful.” (20 RT 4612.) Abealsotestified that the boys of the family cut timber in the summer to make money. They worked 10 to 12 hours a day, five days a week, giving most of their pay to their parents to help make ends meet. No members of the Cordova family, except for appellant, had been in trouble with the law. (20 RT 4596; 20RT 4613.) After he and appellant becameadults, Abe said they really didn’t see each other very much. Fora time, they were both in the service. (20 RT 4597,) In 1979, Abetestified that appellant moved to Canada with a woman named Corrie, who was expecting Joe’s child. Joe eventually returned from Canada andlived in Colorado for a while before moving to San Pablo, California in 1981. Abe did not see Mr. Cordova again until 1984, at his sister’s 25" anniversary party. (20 RT 4579-4598.) Abestated that his brother is a very trustworthy person andthat he has a very hard time believing that Joe could have done the crime. Abe also 26 said that he felt very sorry for the little girl and her family, indicating that he had a granddaughter of his own. (20 RT 4600-4601.) Abealso stated that Joe had been married three times and had children with several women. He also indicated that appellant did not have a lot of long-term relationships with women.(20 RT 4602-4603.) Vicki Cordova, Abe’s wife, testified that she first met Joe in Colorado when she was 13 years of age. She stated that Joe has always treated her “like a queen.” (20 RT 4618-4620.) She noticed a change in Joe’s behavior after he returned from military service in Viet Nam,stating that he used to be “happy-go-lucky” before his war experience but was no longer. She stated that she believed the war had affected Joe a lot. 20 RT 4620-4621.) However, even after Joe returned from Viet Nam, he was always very good to her and was very supportive to her, especially when her father died. (20 RT 4621.) | Vicki never saw Joebeing disrespectful toward other women.(20 RT 4622.) She said he was a “magnetfor girls” and never had problems getting a date; he was a “family legend” because ofthis.bid.) Vicki said she had difficulty accepting the verdict of the jury and felt that the conduct for which Joe was convicted wastotally out of character for him. bid.) On cross-examinatio#, Ms. Cordova admitted that she had hadvery little 27 contact with Mr. Cordovasince the late 1970's. (20 RT 4633-4634.) Phillip Cordova, Mr. Cordova’s thirty-eight year old son by Lupe Snasel, also testified for the defense. (20 RT 4638-4639.) While he could not recall how often his father contacted him, he stated that he saw appellant “when he came around.” (20 RT 4639.) He said he had fond memories of his father and that his father never forgot birthdays or holidays. (bid.) Linda “Windy” Gurule, appellant’s youngersister, testified that the Cordova siblings were all very close when they were growing up. They lived in a country setting, and often played together. Joe always included Windyin his activities and taught her things like how to play basketball. (20 RT 4642-4644.) He also chaperoned her dances. (20 RT 4645.) Windy also stated that nothing in Joe’s childhood suggested that he wascapable of committing the sort of crime for which he was convicted. (20 RT 4644.) As a youth, he never drank to excess nor did he take drugs. (20 RT 4645.) Windy though that this changed when Joe returned from Viet Nam. Before he joined the Navy he was a happy person but that changed as well. (/bid.) When he got back from Viet Nam, she saw a changein his expression. He told her that she was better off not knowing what went on during the war. He began drinking and smoking marijuana on a daily basis. 28 (20 RT 4645-4646.) In spite ofthis, she had no concerns aboutleaving her two young daughters in his care. Windy said her girls loved Mr. Cordova and called him “Uncle Joe.” (20 RT 4647-4648.) She did not believe that her brother committed the murderor any child molesting crimes, stating “that is not who my brother is.” (20 RT 4678.) On cross-examination she also acknowledged that she had rarely seen appellant since the 1970's (20 RT 4656-4657.) Tangie Hollis lived with Joe Cordova for a few monthsin 1979 but had not seen him since. (20 RT 4666.) She met him at a bar in San Pablo. She was a “big drinker”at the time of their initial meeting. ([bid.) They drank a lot when they were together, but Joe was always considerate of her. (20 RT 4667-4669.) Joe left her when an old boyfriend of hers showed up. Tangie said she got mean and shotat Joe but he did not retaliate in any way. (20 RT 4669-4670.) Kelly Cordova, appellant’s wife, married him in 1990. (20 RT 4690; 4693.) She met him in August of 1988 after being “abandonedin a public place,”and started living with him right away. (20 RT 4691.) When they first met, she knew him by the nameof“Geezer.” (/bid.) The couple had two sons, Joseph, born in 1989, and Sean, born in 1992. Both were living 29 with Kelly’s parents in Arizona. (20 RT 4692.) Kelly lived with Joe for a total of five years, until he wentto jail in 1993. (20 RT 4693.) She said that during this period of time, she and Joe were cooperatively building a family together. He was a hard worker, unloading semi-trucks for a living. (20 RT 4693-4694.) They had a normal family life, doing family-oriented activities, such a bowling and entertaining friends and family. (20 RT 4694.) Joe didn’t allow drugs in the house and there wasn’t any drinking until right before he wastaken to jail on the first of the Colorado charges. bid.) Kelly further testified that Joe was a good father. He wasthere for both births and spent a lot of time with the children as they were growing up, participating in all of their activities. In addition, he shared in the household chores. (20 RT 4694.) Joe was aggressive toward her only once during their five year relationship. Towardthe very endofthe relationship, he started drinking for the first time in five years. (20 RT 4697-4698.) He lost his temper once and struck her on the head with his fist. (20 RT 4698-4699.) Hefelt great remorse afterward and sought treatment for his alcohol and domestic violence problem. (20 RT 4709-4710.) Appellant’s youngest sister, Sally, testified that her family knew Mr. 30 Cordova as “Junior.” ([bid.) She had fond memories of Joe during the period when they were growing up in California (20 RT 4734-4735.) After Joe returned from the military, he lived with her for a period of approximately six months. He babysat for her two daughters, who were eight and nine years old at the time. She never suspected anything improper was happening and had no concerns. (20 RT 4735-4738.) She didn’t believe that Joe committed any of the crimes for which he was convicted. (20 RT 4739-4740.) On cross-examination she admitted to seeing very little of Joe during the 1980's and nothingat all of him in the 1990's, but said she would not believe that her brother did anything wrong unless, he himself, admitted to it. (20 RT 4742-4743.) Richard Cordero was Lupe Snasel’s brother and appellant’s ex- brother-in-law. (20 RT 4744. Hefirst met Joe in 1959 while they were attending Harry Ellis High School in Richmond, California. They became friends while in ninth grade. (20 RT 4745.) As teenagers, they got into some minortrouble, drinking and breaking curfew. (20 RT 4745-4746.) Cordero testified that nothing he was aware of in Mr. Cordova’s background would have led Mr. Cordova to killing and raping an eight- year-old girl. (20 RT 4752.) Miles Malmgren met appellant in the mid 1980's and continued a. 31 friendship with him until Mr. Cordova wentto prison in the early 1990's. Malmgren lived with Mr. Cordova as a roommate in Colorado for three years. (20 RT 4753.) Malmgren had served as a Marine in Viet Nam, where he was injured four times. (20 RT 4753-4754.) During the time they lived together, Mr. Cordova unloaded trucks and Malmgren drove them. Mr. Cordova wasa very hard worker. (20 RT 4755.) There wasn’t much drinking in their apartment because Mr. Malmgren didn’t approveofit. ([bid.) However, there wasa lot of marijuana smoking. (20 RT 4756.) After Mr. Cordova moved in with Kelly. Malmgren lived with them for about a year and would watchlittle Joe. As far as Malmgren couldtell, Mr. Cordova was a good husband andfather. (20 RT 4758.) Even though he had been made aware of Mr. Cordova’s prior arrests, Mr. Malmgren did not believe that Mr. Cordova murdered Cannie. (20 RT 4765.) Appellant testified at the penalty phase. He said he was not angry at the guilty verdict, stating “I don’t know if (the jury) based their decision of evidence or if they took the crimeitself as such a bad crimethat they wanted to punish somebody.” (20 RT 4776.) Hetestified that he did not commit the crime, but at that point he did not care whether hegot a 32 sentence of death orlife imprisonment, because one sentence wasas bad as the other for a sixty-two-year-old man.([bid.) When asked by his counsel whether he was asking the jury to sentence him to death, Mr. Cordova responded “T am not asking them to do anything. I am not goingto lie to save my life. I am goingto die in prison, anyway.” (20 RT 4777.) Hetestified that he had Hepatitis C, an incurable disease, and diabetes. (20 RT 4777-4778.) He stated that a sentence oflife without possibility ofparole would expose him to other prisoners where he might haveto kill to defend himself, if necessary (20 RT 4778.) If he received the death penalty, he would get a single cell accommodation, which would be safer for everyone involved. In any event, he said he did not believe that he would be executed because of slow operation of the death penalty. (20 RT 4779; 4786.) He also stated that he would face additional danger in general population as a convicted child murderer- rapist. (20 RT 4786.) Mr. Cordovatestified that he served in the Navy from 1962-1970, reenlisting twice, during that time. (20 RT 4790.) He spent six months in ‘Viet Nam in 1964-1965, where he flew as a reconnaissancepilot. (/bid.) He then went to Okinawabefore returning to Viet Nam in 1968, where he was assigned to river boat detail near Cam Rahn Bay. (20 RT 4792.) Duringthis 33 tour of duty, he was fired upon by the enemy. (Jbid.) When asked whether his service upon these boats contributed to any abnormal behavior he admitted that it was very disconcerting knowing he could get killed at any time butsaid, “I do not believe that I am unstable except when I get drunk, maybe.” (20 RT 4793-4794.) However, he did state that his experiences in Viet Nam led to an increase in his drinking and drug use. He would lace marijuana with opium and smokeit to get high. Use ofmarijuana was epidemic where he was stationed. (20 RT 4794.) Mr. Cordovatestified that Viet Nam changed him a lot. He recalled that the smell of decomposition was overwhelming from the dead bodies that were being shipped home. (20 RT 4795.) Mr. Cordova claimed that the Navy abusedthe sailors and the Congress “chickened out” and did not want to bomb North Viet Nam, letting the Viet Cong rearm and resupply themselves. He had planned to makea career ofthe Navy butfelt betrayed, continuing in the service only because he had re-enlisted. (20 RT 4795.) In 1970, while still in the Navy, Mr. Cordova becameinvolvedin the theft of a check from a new officer. Hefelt that they were “bugging him”so he stole their money. (20 RT 4797.) Hetestified that the federal court put him on probation. (/bid.) He also stated that he stole the money, in part, because he just wanted the money for 34 himself and to support his family. (20 RT 4810.) Mr. Cordova married Lupe Snasel in 1968, who bore him a son, Phillip. He stated that their breakup washis fault because of his drug use and his baseless accusations of adultery. (20 RT 4798.) Hetestified that the end oftheir relationship hurt him very much,stating that she “washis rock,” and that shestill visited him in jail. bid.) Oncross-examination, appellant denied committing the murder. He also denied committing the other molestations for which he was convicted, saying he had pled guilty to avoid harsher penalties. (20 RT 4799-4801.) However, he did admit to partying and flirting with Pam, which later culminated in his trying to sexually arouse her while she was sleeping next to Curtis, whom he was convicted of molesting. (20 RT 4799-4804.) Twenty-seven days after Mr. Cordova wasreleased from prison forthe first molestation charge, he was arrested for the molestation of Curtis. (20 RT 4805.) In response to questioning by the District Attorney, Mr. Cordova stated that nothing happened while he wasin the Navy that would have forced him to become a child molester. (20 RT 4814.) At one point, he also told the prosecutor that if there was something he wanted he “wouldjust take it.” (20 RT 4818.) However, he denied having committedthe crime 35 against Cannie. (/bid.) He also admitted to smoking pot and “doing little acid” in the 1970's and 1980's, but denied having a drug problem. (/bid.) He also admitted to dealing marijuana and cocaine “on and off.” (20 RT 4819.) Healso stated that he carried a handgunat one point for protection. (/bid.) Appellant related that he married Lupe in 1968, while he wasin the Navy, and divorced hera yearlater. (20 RT 4821.) Dueto his service commitment, he only lived with Lupe for six months. (20 RT 4822.) In 1974, Mr. Cordova married Sandy and waswith her for about six months. He married Kelly in 1992 and had twochildren with her. (20 RT 4823.) He also had a daughter from another woman,a child he had neverseen. (20 RT 4823.) He also had a child with a woman named Karen and a woman in Virginia. (20 RT 4823-4824.) Further, he lived with a person named Corrie off and on in the mid-1970's having a son, Matt, with her. (20 RT 4825.) He stated that he cheated on Corrie and they separated. (20 RT 4826-4828.) Mr. Cordovastated that he never struck Corrie but admitted to threatening his ex-girlfriend, Janice, with a gun, and hitting Kelly on the head during an argument. (20 RT 4828-4829.) He also admitted that in a prison anger managementclass, he said he was so mad at Deputy District Attorney Lori Clapp he was mad enoughto kill her andsaid, “If I’d had a gun in Court, I would have killed that bitch” (20 RT 4831.) 36 Mr. Cordova admitted to burglarizing a neighbor’s house when he was twelve-years-old in Colorado. He further stated that his parents were law abiding people and had attempted to teach him right from wrong. However, when he wanted something he just took it. (20 RT 4833.) Mr. Cordovaalso admitted to being caught with dangerous contraband on three separate occasions while in prison, but denied that he harbored any intent to harm anyone, and only possessed these items for innocent purposes. (20 RT 4834-4838.) GUILT PHASE ARGUMENTS I. DUE TO THE PERVASIVE NEGLIGENCE OF GOVERNMENT AGENTSIN THE INVESTIGATION OF THIS MATTER, APPELLANT WAS NOT CHARGED WITH THE INSTANT CRIMES UNTIL TWENTY-THREE YEARS AFTER ITS COMMISSION, THEREBY PREVENTING HIM FROM MOUNTING AN ADEQUATE DEFENSE AT TRIAL IN VIOLATION OF HIS RIGHT TO DUE PROCESS OF LAW UNDER THE FIFTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION. A. INTRODUCTION Cannie Bullock was murdered 23 years before appellant was charged with the crime. From the outset, the investigation ofthe crime by law enforcement was haphazardly and negligently conducted. On the very first day ofthe investigation, the police were convinced 37 that the crime had to have been committed by one of Linda Bullock’s acquaintances.In fact, within hours of the discovery of Cannie’s body, Debbie Fisher, Linda’s close friend and sometime housemate, informed the police that Ms. Bullock knew whodid the crime. (7 RT 1499-1503.) In spite of this information,the police did very little to follow up. Instead ofpursing these leads, the police conducted only a few ineffectual interviews with Ms. Bullock, interviews in which it was clear that she was hiding the truth.In the days following the murder, Ms. Bullock was uncooperative and under the influence of somesort of intoxicant. The police did virtually nothingto pierce her silence. Instead ofholding Ms. Bullock as a material witness, or arresting her for criminal negligence in Cannie’s death, the police seemed simply to discount her as a viable source of information and ignoredthe likelihood that she held that the key to solving the crime. Soon after the crime, Linda Bullock wentinto hiding, in an apparent attempt to avoid further inquiries about her daughter’s murder. The balance of the investigation was equally perfunctory. In spite of the fact that they knew that Ms. Bullock’s circle of friends was largely limited to the bikers that frequented the local bars of San Pablo,the police did very little canvassing at these establishments in an attemptto identify possible suspects in the murder. Asthe result of an internal conflict within 38 the San Pablo Police Department, the investigation essentially endeda little over a month after it began, with all of the detective work of the San Pablo Police department being contracted to the County Sheriff. There was no evidencethat the Sheriff did anything to find Cannie’s killer for the next seventeen years. It was not until 1996 that any attempt was madeto further investigate the case. The government’s negligence in pursuing the investigation ofthis case caused appellant to suffer prejudice from the loss of material witnesses and evidence, compromising his ability to defend himself. The pre- indictment delay of 23 years violated appellant’s right to due process of law pursuant to both the Fifth and Fourteenth Amendments to the United States Constitution and the Constitution ofthe State of California. B. PROCEDURAL HISTORY On September 1, 2006, appellant filed a Motion to Dismiss for Violation of Defendant’s Due Process Rights. (5 CT 1103.) In that motion, appellant argued that the delay in filing formal charges against him was caused by the negligence of law enforcement authorities and that the delay caused him irreversible prejudice due to the loss of material witnesses and evidence, compromising his ability to defend himself. (5 CT 1105.) On September 22, 2006, the prosecutor filed a response in whichit 39 argued that the police were not negligent in their investigation of the case and that, in any event, any prejudice to appellant was minimal. (5 CT 1309:1313-1316.) On September 29, 2006, the trial court heard arguments on the motion and deniedit. (6 RT 1406 et seq; 7 RT 1525-1526.) The court stated that it did not believe that a showing ofnegligence had been made,stating that it was not clear whetheror notthe police failed to properly follow up on leads. (7 RT 1524.) The trial court also held that even if the police were negligent by failing to properly conduct the investigation, it was “pure speculation”that had the investigation been done properly, it would have led to the discovery or arrest of appellant. (7 RT 1524-1525.) C. GENERAL DISCUSSION OF THE LAW 1. Federal law as to Pre-Indictment Delay In United States v. Marion (1971) 404 U.S. 307, the United States Supreme Court held that the Sixth Amendmentright to a speedy trial does not extend to pre-indictment delay, as occurred in the instant case. However, the Court held that the DueProcess Clause ofthe Fifth Amendmentto the United States Constitution mandates dismissal ofthe indictmentifthe pre-indictment delay caused substantial prejudice to defendant’s right to a fair trial. 7d. at p. 324.) 40 The Marion Court did not attempt to define the exact nature of the prejudice that must be suffered before due processrelief can be granted. However, the Court did generally state that “to accommodate the sound administration ofjustice to the rights of a defendantto a fairtrial will necessarily involve a delicate judgment based on the circumstances of each case.It would be unwiseat this juncture to attempt to forecast our decision in such cases.” (Marion, supra at pp. 324-325.) Further, the Court held such relief was dependent upon the intent of the government; an indictment could be dismissed on the ground of delay only if the delay “was an intentional device to gain tactical advantage over the accused.” (Marion, Id. at 324.) In United States v. Lovasco (1977) 431 U.S. 783, the High Court departed from its Marion decision to the extent that it no longer required government conductto be in bad-faith beforebeing able to find due process violation for pre-indictment delay. The High Court in Lovascostated that the delay need not be intentional but could be “in reckless disregard of circumstances knownto the prosecutor, suggesting that there existed an appreciable risk that the delay would impair the ability to mount an effective defense.” (/d. at 796 at fn 17.) In 1992, the Court decided Doggett v. United States (1992) 505 US. 4] 647, in whichit considered whether governmental negligence can trigger a speedy trial analysis. While Doggettis a speedytrial case involving post- indictmentdelay, it is illustrative of certain principles pertinent to the due process issue in the instant case. Doggett held that governmental negligence might be sufficient to trigger action by the court “Between diligent prosecution might be sufficient to trigger action by the court. “Between diligent prosecution and bad-faith delay, official negligence in bringing an accusedto trial occupies the middle ground. While not compelling relief in every case where bad- faith delay would makerelief virtually automatic, neither is negligence automatically tolerable simply because the accused cannot demonstrate exactly how it prejudiced him.” (Doggett, supra, at 657.) Regarding the standard of prejudice, because Doggett was a Sixth Amendment case, the Court based muchofits decision on the seminal case ofBarker v. Wingo (1972) 407 U.S. 514. Again, while Barker is a speedy trial, Sixth Amendmentcase, much ofits logic can equally be applied to Fifth Amendmentcases, such as the instant case. Barker rejected any mechanical or rigid test as to how much time need pass between the date of the crime andits formal prosecution before a defendant’s rights be said to be violated. (Barker, at pp. 522-523.) Further, 42 it rejected the notion that at some point during the period of delay, a defendant must requesta trial in order to be able to later claim thathis _ speedytrail rights were violated. (/d. at pp. 523-524.) In doing so, Barker made clear that anything less than an express and knowing waiver ofa right is insufficient to waive defendant’s right to a speedytrial, as a “defendant has no duty to bring himselfto trial.” (/d. at pp. 526-527.) Ultimately, the Barker Court settled on a balancing test in which the conduct of both the defense and prosecution are weighted, considering factors such as length of the delay, the reason for the delay, the defendant’s assertion ofhis right, and prejudice to the defendant. (Barker, supra, 407 USS. at p. 530.) The United States Supreme Court has never specifically developed a set of standards for determining whether pre-indictment delay has violated a defendant’s Fifth Amendmentdue processrights. In fact, it has literally gone out of its way to avoid setting such a standard, stating in Lovasco that it “leave(s) to the lower courts, in the first instance, the task of applying the settled principles of due process..to the particular circumstances of the case.” (United States v. Lovasco, supra, 431 U.S.at p. 797.) The federal appellate courts have split on the nature of such a standard. According to the Ninth Circuit, a defendant must make some 43 demonstration of actual prejudice and establish “some culpability on the government’s part either in the form ofintentional misconduct or negligence,” and then the court must balance the degree ofprejudice, the length of delay, and the government’s reasons for delay in order to determine whether the defendant’s due process rights were violated. (United States v. Mays (9" Cir. 1977) 549 F2d 670, 677-78; United States v. Moran (9" Cir 1985) 759 F.2d 777, 781.) Underthe standard followed by the Ninth Circuit it is possible to establish a due process violation based on merely negligent delay, provided that the prejudice to the defendantis sufficiently severe. (E.g. United States v. Mays, supra, 549 F.2d at pp. 677-678.) The majority of the circuits have held that in order to prevail on a pre-indictment delay claim the accused must show both actual prejudice and an intentional delay on the part of the government to gain an unfairtactical advantage or for some other bad faith motive. (E.g. United States v. Crooks (1st Cir. 1985) 766 F.2d 7, 11.) 2. California Law Oneofthe central differences between federal and California state law in this area is that according to this Court’s holding in People v. Hannon (1977) 19 Cal.3d 588, 604-605, the California Constitution does not differentiate between pre-indictment and post-indictment delays, and the 44 same balancingtests are used for both. The standards for this balancing understate law are clearer than the federal law. In 2008, the California Supreme Court in People v. Nelson (2008) 43 Cal.4th 1242, clarified both the procedural and substantive law standards as to delay in prosecution underthe state Constitution. The facts ofNelson are similar in some waystothe facts of the instant case. In 1976, a college student was raped and murdered. Unlike Mr. Cordova, Nelson was considered a suspect not long after the crime was committed but there was not enough evidence to formally charge him. In 2000,the state allocated funding for the Cold Hit program and defendant wasidentified soon afterward as the donor ofDNA from various incriminating latent stains from the 1976 murder. Regarding the procedural framework to be employedin the ultimate determination of prejudice, this Court stated, citing People v. Catlin (2001) 26 Cal.4th 81, 107, that a defendant seeking to dismiss an indictment on speedytrial/due process grounds must demonstrate prejudice arising from the delay. After a showing ofprejudice has been made, the prosecutor may offer a justification for the delay; the trial court then balances the harm to the defendant against the reasonsfor the delay. (Nelson at p. 1250; see also People v. Archerd (1970) 3 Cal.3d 615, 639-632; People v. Pellegrino 45 (1978) 86 Cal.App. 3d 776, 779-781.) The Nelson Court did not attempt to quantify the degree ofprejudice that has to be shownto trigger an explanation of the delay from the prosecutor, instead referring to the defense burden as the need to show “some”prejudice. Ud. At 1251.) In short, Nelson and its precedent cases set up a three-step process, as follows. 1. Defendant must show “some evidence”ofprejudice. 2. Burden then shifts to the People to justify the delay. 3. Court then balances the harm to the defendant against the reason for delay. | In Nelson, this Court began its analysis of California law by citing to People v. Martinez (2000) 22 Cal.4th 750, which stated “[t]he right of due process’ protects a criminal defendant’s interest in fair adjudication by preventing unjustified delays that weaken the defense through dimming of memories, the death or disappearances ofwitnesses.” (Nelson, supra, 43 Cal.4th at p. 1250.) This Court declined to decide whether the delay in prosecution under federal due process principles requires bad faith on the part of the prosecutor. However,it held that in any event, California was not 3. As stated above, People v. Hannon makesit clear that “speedytrial” and “due process” signify the same constitutional protection in this context. 46 bound by any “minimalist notions” of the federal courts and proceeded to define California law as more lenient than certain “bad-faith” based interpretations of federal due processrights. (Nelson at p. 1254.) In doing so, Nelson, citing to Penney v. Superior Court (1972) 28 Cal.App 3d. 941, held that the requirementof a legitimate reason for the prosecutorial delay cannot be met simply by showing an absence of deliberate, purposeful or oppressive police conduct. A legitimate reason logically requires something more than the absence of governmental bad faith. Negligence on the part of police officers in gathering evidence or putting the case together for presentation to the district attorney in evaluating a case for possible prosecution can hardly be considered a valid police purpose justifying a lengthy delay which results in the deprivation ofa rightto a fair trial. Penney at p. 953; Nelsonat p. 1254.) In Nelson, this Court also reaffirmed its own reasoning in Scherling v. Superior Court (1978) 22 Cal.3d 493. In Scherling, this Court found that the defendant hadn’t shown prejudice so the Court need not reach the question ofjustification for the delay. However, the Court stated [w]e do not intend to imply that only a deliberate delay by the prosecution for the purposeofprejudicing the defense may justify a conclusion that a defendant has been denied due process. The ultimate inquiry in determininga claim based on due process is whether the defendant will be denieda fair trial. If such deprivation results from unjustifiable delay by the prosecution coupled with prejudice, it makes no difference whether the delay was deliberately designed to disadvantage the defendant, or whetherit was caused by negligent of law enforcement agencies or the prosecution....Thus, although 47 delay may have been caused only by the negligence of the government, the prejudice suffered by a defendant may be sufficient when balanced against the reasons for delay to constitute a denial of due process. (Scherling at p.1255.) The Court then summedupthe state of California law, stating that negligent, as well as purposeful delay may serve as groundsfor a due processviolation if the requisite degree ofprejudice is shown. However, since “purposeful delay to gain an advantageis totally unjustified, a relatively weak showing ofprejudice would suffice to tip the scales towards finding a due process violation. If the delay was merely negligent, a greater showing ofprejudice would be required to establish a due process violation.” (People v. Nelson, supra, 43 Cal.4th 1255-1256.) D. APPLICATION OF THE LAW TO THE INSTANT CASE To find additional specific guidanceasto the nature ofthe practical standard to be used in the instant case, it is helpful to examine cases decided before Nelson. In People v. Archerd, supra, 3 Cal.3d 615, this Court made reference to a “balancing process”that took into accountall of the circumstancesofthe nature of the delay and set forth the procedure to be followed in effecting this test. “In the balancing process, the defendant has the initial burden of showing someprejudice before the prosecutionis required to offer any reason for the delay [citations]. The showing of prejudice requires some evidence and cannot be presumedbut can be 48 attributed to loss of memory orloss ofphysical evidence.” (/d at pp. 639- 640; see Ibarra v. Municipal Court (1984) 162 Cal.App. 3d 853, 857.) Similarly, in People v. Catlin, this Court stated “[w]e have observed that “[p]rejudice may be shownby loss of material witnesses due to lapse of time [citation] or loss of evidence because of fading memory attributable to the delay.’” (People v. Catlin, supra, 26 Cal.4th at 107 citing to People v. Morris (1988) 46 Cal.3d 1, 37.) People v. Horning (2004) 34 Cal.4th 871 expands Catlin by recognizing that the longer the delay, the harderit is for a defendantto “particularize” prejudice with specific allegations. “[A]ffirmative proof ofparticularized prejudice is not essential to every speedy trial claim, because excessive delay presumptively compromises the reliability of a trial in ways that neither party can prove, or for that matter, identify.” (/d.at 893.) | Additional guidance can be found in decisions ofthe courts of appeal. In Garcia v. Superior Court (1984) 163 Cal.App. 3" 148,the court discussed the importance ofa full examination of both the prejudice suffered by the defendant and the prosecution’s explanation forthe delay. In that case, the petitioner was released on bond following her arrest. She appeared for arraignment on February 11, 1983; however, no complaint had been filed. After several more court appearancesstill no complaint had been 49 | filed, and the court eventually exonerated the bail bond. A complaint was eventually filed on December30, 1983. Petitioner appeared in court on January 11, 1984, in responseto a letter notifying her to appear for arraignment on the complaint. Petitioner claimed a speedytrial violation, relying on the Sixth Amendment to the United States Constitution and Article I, section 15 of the California Constitution. Although petitioner argued prejudice was presumedfrom the length of the delay she also offered evidence of prejudice in a declaration. Her declaration stated the police entered her homeillegally when executing the search warrant the day ofherarrest. According to petitioner, witnesses observed the unlawful entry andarrest. She claimed these witnesses also saw the police search petitioner’s person and clothing at least three times before she was taken to the jail and therefore could confirm she had no heroin in her pocket. However, the declaration stated petitioner was unableto find the witnesses due to the length ofthe delay in prosecution. Without hearing any evidenceto explain the reason for the delay in filing charges, the trial court denied petitioner’s motion to dismiss, finding an insufficient showing ofprejudice. The court of appeal reversed and remanded,holdingthat petitioner had made a primafacie showing ofprejudice, which shifted the burden to 50 the prosecution to justify the delay. (Garcia at p. 151.) The court stated that the trial court erred in failing to conducta hearing requiring the prosecution to justify the delay so that the court could conduct a balancing test between the two equities. bid.) In People v. Hughes (1970) 38 Cal.App. 3d 670, 677, the court of appeal indicated that amongthe factors to be considered in deciding whether defendant was prejudiced by the delay, the death or disappearance of a witness is “the most serious. If witnesses die or disappear during a delay, the prejudice is obvious.” In People v. Pelligrino, supra, 86 Cal.App.3d at p. 779, the court held that prejudice resulted from the fact that because of the delay between the crime andthetrial, the sole prosecution witnesstestified not from personalrecollection but only with the aid ofhis official notebook, the sole meansofidentification and prosecution of dozensof alleged narcotics offenders. In regard to the prosecution’s reason for the delay between the crime and bringing formal charges, the court distinguished between investigative needs and a lack of interest on the part of law enforcement, warning that the police cannot simply put their investigation “on the back burnerhopingthat it will some day simmer into something more prosecutable.” Ud. at 781.) 51 The prejudicial effect of loss ofpersonal recollection was also discussed by this court in People v. Archerd, supra, 3 Cal.3d at 639, which although ultimately denying relief because of a lack of prejudice demonstrated by the defendant, recognized that lapse oftime can cause a prejudicial lapse ofmemory or other situation that makes defending the case overly difficult. Ud. at pp. 639-640; United States v. Feinberg (2d Cir. 1967) 388 F.2d 60, 64, 67.) Feinberg, supra, which exemplifies those situations in which pre- indictment delay generally cannot be said to have caused prejudice, is instructive regarding the instant case. In Feinberg, a 5-year delay between the offense and the indictment washeld not to constitute a denial of due process because ofthe defendant’s failure to show any prejudice. The defendant was shown to have sufficient memory of the ‘essential matters of dispute.” (Feinberg, supra, at p. 66.) Accordingto the circuit court of appeals, the defendant wasable to “testify with specificity as to the events in question.” (/bid.) Accordingto the court, defendant was given every opportunity to demonstrate prejudice from the delay, but was only able to point to isolated incidents of dismissed recall not dealing with essential matters in dispute. Further, the offense was immediately and properly investigated. Defendant’s recollection wasassisted by various documents in 52 evidence. The record disclosed no failure by defendant to reconstruct what he did not remember. The court further held that until prejudice has been shownbythe defendant there should be no inquiry into the reason for the delay ([bid.; see Archerd, supra, 3 Cal.3d at 640-641.) All ofthe abovecases lead to the inescapable conclusion that any balancing test in this case must be resolved in favor ofMr. Cordova and a finding that appellant suffered irreversible prejudice from the negligent failure of the police to conduct a proper investigation. Theinitial investigation of this case by law enforcement authorities was characterized by neglect, indifference, and a failure to follow up on possible leads as to the perpetrator of the crime. From the outset of the investigation, the police had every reasonto suspectthat the killer was someone known to Linda Bullock, Cannie’s mother. (7 RT 1497.) It was clear that Ms. Bullock was being evasive, unwilling to give the police accurate information about her knownassociates, and generally not forthcoming about what she knew. (7 RT 1499.) The police believed that this may have been because of the involvement of a member or members of motorcycle gangs in the crime. (7 RT 1499.) Linda was underthe influence during her only interviews with the police (7 RT 1499; 1515.) She eventually went into hiding not long after the murder. (7 RT 1511.) Other 53 than doing a DMV check and someother unspecified efforts, little was done to find her, in spite of the fact that the police had ascertained she was hiding information from them. (7 RT 1511.) She also told the police a black guy named “John did crime” (13 RT 2987-2988), and that she had had sexual relations with various men in her bedroom aroundthe generaltime period of the murder. (13 RT 2976.) There wasno evidencethat the police followed up on any ofthese leads. The police received a list from Debbie Fisher, Linda Bullock’s house mate, as to the identity of these visitors. (7 RT 1503.) While the authorities said appellant’s name never came up, Fisher knew Cordovaasa visitor to house andthere was no reason whyshe should not have given his name on the list. (13 RT 2953.) There was nothing in the record to indicate that this list was preserved by the police. Nor wasthere any indication that the police personally interviewed any of these people. The police also learned that Linda’s social life revolved around the local bars in San Pablo, especially Oscar’s and the Esquire. (7 RT1505- 1506.) Inexplicably, virtually no investigation was conducted at the establishments to determine the identity ofthese acquaintances and to interview them. (7 RT 1507-1508.) This haphazard, cursory investigation qualifies as the type ofpolice 54 negligence referred to in Nelson. It was evidencedin thepitifully low intensity nature of the investigation in light of the tragic circumstances of the crime; the rape and murder of a younggirl in her own home. Considering the severity of the crime, very little effort was madeto solveit. The investigation was essentially terminated not long after it began, when the San Pablo Police, beset with internal difficulties, stopped doing any active detective work, instead contracting with the Sheriffs Department. (7 RT 1512.) The San Pablo’s Police Department’s indifference to this case wasso great that it was several years before the San Pablo Police even followed up with the Sheriff. (7 RT 1513.) The state was not able to provide any sort of adequate explanation for the failure to proceed with the type of investigation that must follow the commission ofthis serious crime. However, appellant showedthe type of prejudice required by People v. Nelson to shift the burden to the prosecutor to justify the delay. The police negligencein this case essentially precluded the developmentofleadsas to suspects that might have led to a resolution of the matter within a reasonable time after the crime. By ignoring possible suspects, failing to collect and preserve important crime scene evidence, and terminating the investigation weeksafter it began, the police allowed decades to pass before they found a viable suspect in appellant. During that 55 time, memories were effectively extinguished and evidence and possible witnesses disappeared. This is not a case where a defendant simply speculated as to what witnesses and information might have been available if there had been no improper delay. (United States v. Feinberg, supra, 388 F.2d.,64, 67.) Appellant demonstrated to thetrial court the loss ofwitnesses who potentially could have shedlight on the case and who,ifproperly interviewed in 1979, might have caused a suspect to be identified, or served to suggest that someoneother than appellant committed the crime.In their very detailed written motion (5 CT 1103 et seq) and arguments in thetrial court, defense counsel set forth specifically, the names of possible witnesses no longer available and evidence lost. Thetrial court’s conclusion that appellant did nothing more than speculate as to the prejudice that might have been caused by the delay missed the mark,entirely. In very detailed and complete written motion (5 CT 1103 et seq), counsel set forth specifically, the names of possible witnesses who were no longeravailable, records no longer available and evidencelost. Relevant witnesses who have died or otherwise became unavailable because ofthe delay, as stated in the abovecited law, are amongthefactors to be considered by the reviewing court in deciding whether appellant 56 suffered prejudice by the delay. (People v. Hughes, supra, 38 Cal.App.3dat p. 677.) In this case, these witnesses were legion.- Rose Azevedo (5 CT 1128), Charles Greener (Jbid), and Michael Hunt (5 CT 1129), neighbors of the Bullocks,all deceased by the time appellant wasfinally charged, could have provided information that could have established a reasonable doubtas to guilt by substantiating appellant’ s version ofwhat occurred. In addition, Mr. Hunt reported a suspicious vehicle near the Bullock house the night of the murder. As appellant did not drive, this certainly would have been relevant information. (5 CT 1129.) Several other witnesses made unavailable by the passage of time could have given relevant information and testimony as to the possible involvementof third party suspect William Flores. These witnesses included Mary Flores, Marcelle Martin, Rosemary Hearst, Ann Crews, Nancy Perdue, and Palmira DeSlivera (5 CT 1125-1126; 1139.) All these witnesses could have provided information about Mr. Flores’s violent and suspicious behavior, his bizarre sexual attitudes, and his past criminal conduct. (/bid.) In addition, as stated in the Statement of Facts, Flores committed suicide. Suicide is often precipitated by a feeling of guilt over past actions. Heleft a suicide note that was destroyed. This note could have provided 57 information about the reason he killed himself. Drs. Wa Roelfing and Thomas Smith, both deceased at the timeoftrial, treated Flores after his _ suicide attempt. They might well have hadfiles and other information regarding why Flores wished to kill himself and logically the meaning of the suicide note he left.(5 CT 1132-1133.) Asindicated in the Statement of Facts, supra, the possible involvement of William Flores in the murder of Cannie was essential to the defense, which was that Flores was the murderer and appellant’s sperm found in Cannie due to unintended transfer from a non-sexual conveyance. Anyadditional evidence that Flores was the killer would not only stand to create a reasonable doubt as to whether appellant was the killer, but would have also supported his theory of unintentional transfer. In addition, as explained in appellant’s new trial motion, many associates of Linda Bullock that socialized with her in 1979, were no longer available when appellant was finaly charged. These included people who were with her on the night ofthe murder and who were well informed about her circle of acquaintances. (5 CT 1130 et seq.) In addition, a person named “Blue” had informed Ms. Bullock that a black man named “John” had killed Cannie. (5 CT 1131.) Other sources of information, known to Ms. Bullock and the San Pablo Police included Patrick Arambula and Timothy 58 Connolly, who had knowledge of a disturbance at the Bullock house two weeks before the murder. (5 CT 1131.) It is not mere speculation that these people, all unavailable due the passage oftwenty-three years oftime, could well have played a direct role in the investigation of this case and could haveled to the development of a suspect aroundthe timeofthekilling. As stated above,the entire police investigation was based upon what Ms. Bullock waspreparedto tell them, which wasvery little. To suspend, and then totally abandon, an investigation ofa little girl’s rape and murder because her mother was not cooperative is indefensible. Ms. Bullock’s desire not to cooperate should have triggered the police to re-double their efforts, not abandon them. Further, as appellant’s counsel explainedto the trial court, witnesses to appellant’s experience and character while serving in Viet Nam were either lost or their memories too faded to be ofmuch use. (5 CT 1140.) Further, educational, military, and medical records were destroyed, records that could well have provided mitigating evidence for the penalty phase. (5 CT 1144.) In addition, as stated in the Motion, during the twenty-three year delay caused by the police, many events had occurred in appellant’s life that would have had an impact on the penalty phase, including head injuries and 59 use of alcohol and drugs. (5 CT 1135 et seq.) The memory ofwitnesses to these events could only have fadedas to the their details, and appellant himself could not possibly rememberall that had occurred to him overthis twenty-three year period of time. These faded memories clearly may be considered in determining prejudice to appellant caused by negligent and indifferent police conduct. (People v. Hill (1984) 37 Cal.3d 491, 494.) The passage of 23 years from the time of the murderto the time of notice to appellant that he was suspected ofthe offense “presumptively compromisesthereliability of a trial in ways that neither party can prove, or for that matter, identify.” (People v. Horning, supra, 34 Cal.4th at p. 893.) The defensein the instant case was that appellant did not murder Cannie and that he was elsewhere when the murder was committed. Counsel admitted that the sperm purportedly swabbed from Cannie’s vaginal vault wasappellant’s but that it was deposited on her body and from there to the swab throughthe process ofunintended transfer from the bed where she slept with her mother, and that it was another person whoactually killed and sexually assaulted Cannie. (AOB,supra, at pp. 22 et seq.) The 23 year delay in bringing charges against appellant far exceeded those delays in the court of appeal cases mentioned above. This period was so long that it madeit impossible for appellant to prepare an effective 60 defense. Appellant’s ability, or lack thereof, to recall his whereabouts at the exact time ofthe crime is of the utmost importance. The fact that appellant cannot specifically state what any ofthese possible witnesses would have said does not preclude relief, and, in fact, tends to show the severity of the prejudice from the delay. The reliability of the trial was compromised by the passage of so muchtimethat it was impossible for appellant to defend himself. Either through presenting evidence of his true whereabouts the night ofthe crime or locating and interviewing witnesses who would have otherwise raised a reasonable doubtas to his guilt. Through his written motion, appellant carried his initial burden to show the required quantum ofprejudice dueto the delay in prosecution. (Nelson, supra, 43 Cal.4th at 1251.) The prosecution could not explain why the police failed to perform the proper investigation. All it could do was point to some rudimentary investigation as to two third party suspects, Rudy Sandoval and William Flores. (7 RT 1522 et seq.) Considering all ofthe above, the delay ofnearly a quarter of a century between the commissionofthe crime andits purported resolution- the charging of appellant was by andlarge caused by a very perfunctory and negligent investigation by the police. The delay in turn created such problemsfor the appellant in defending his case that a fair trial was 61 impossible. As such, appellant was denied his right to due process of law under the Fifth Amendment ofUnited States Constitution andthe rights to due process and a speedytrial under the California State Constitution. Appellant’s conviction must be reversed. Il. THETRIAL COURT VIOLATED APPELLANT’S RIGHT TO DUE PROCESS OF LAW UNDER THE FIFTH AND FOURTEENTH AMENDMENTSTO THE UNITED STATES CONSTITUTION BY ALLOWING THE ADMISSION INTO EVIDENCEIN THE GUILT PHASE OF TRIAL APPELLANT’S 1992 AND 1997 CONVICTIONS OF SEXUAL ASSAULT UPONNINAS. AND CURTISB. A. FACTUAL BACKGROUND At Mr. Cordova’s trial, evidence was presented over objection, of two incidents in which he had sexually fondled children. On September 26, 1992, Debbie Taylor dropped off her two children, twelve year old Nina and three year old Brandon,to spend the night at appellant’s home-in Lakewood, Colorado. (17 RT 3808-3809.) Nina went to bed, alone, but was later awakenedby appellant rubbing her chest and buttocks. (17 RT 3810.) She told appellant to stop, and he immediately complied with her wishes. He then huggedher and askedherto please not tell anyone or he would go to jail. (17 RT 3810.) Appellant went into the bathroom, and Nina called her mother to pick her up. (/bid.) When her motherarrived, Nina told her what happened. (17 RT 3811.) Appellant eventually pled guily to attempted 62 sexual assault of a child. (17 RT 3906.) On November 22, 1997, Curtis Baker, then ten years of age, attended a party with appellant and others at a house in Denver, Colorado. (17 RT 3905.) While the party wasstill going on, Curtis and nineteen-year-old - Pamela Baughmanfell asleep together in an upstairs bedroom. (17 RT 3912-3913.) A short time thereafter, Curtis was awakened by appellant placing his hand downthe boy’s boxer shorts and rubbing his buttocks. Curtis immediately ran downstairsto tell his father what happened. (17 RT 3914-3915.) Appellant eventually pled to the sexual assault of Curtis. (17 RT 3907.) B. PROCEDURAL HISTORY On September 22, 2006, the prosecutor filed a Motion in Limine to Introduce Evidence ofDefendant’s Prior Sexual Offenses Under Evidence Codesection 1108. (5 CT 1272.) In the motion, the prosecutor argued that the two unrelated sexual offenses described above were admissible against Mr. Cordovaat trial under Evidence Code 1108. (5 CT 1274.) The prosecution urged, for various reasons, that Evidence Code section 352 did not require the exclusion ofthat evidence. In addition to urging admission undersection 1108, the prosecutor also argued that evidence of these sexual assaults were admissible under 63 Evidence Codesection 1101 (b) in that they were material to show “defendant’s deviant sexual interest in young and helpless people” and relevant to appellant’s intent at the time ofthe instant offense. (5 CT 1278- 1279.) Appellant’s Reply to this Motion was filed November21, 2006,In it, he arguedthat section 1108 did not applyto the factual situation because the legislative intent wasthat the statute only appliedto situations in which there was some question as to whetherthe crime itselfwas committed, not to situations where the question was who committed it. (6 CT 1538-1539.) Appellant further argued that the purposeofthe statute wasto aid the jury in weighing the credibility of the defendant as opposedto that ofthe alleged victim, a scenario that did not exist in the instant case. ([bid.) Secondly, appellant argued that the degree of similarity between the instant crime and the two sexual assault convictions wasso slight that evidence ofthe two assaults would have no relevance to proving appellant’s guilt in the instant case. (6 CT 1539-1540.) Appellant argued that “the nature and surrounding circumstancesofthe prior circumstances ofthe prior offenses and the alleged crimein the current case have nothing in common, other than fitting the very broad category of sexual offenses.” (6 RT 1541.) 64 Appellant further argues that even if the two sexual assault cases bore somerelevanceto the instant case, that relevance wassubstantially outweighed by the unduly prejudicial nature of the ofthe sexual assaults. Citing to People v. Falsetta (1999) 21 Cal.4th 903, 915, appellant set forth the protections afforded to a defendant’s due process rights under section 1108. Asstated in Falsetta, the chief ofthese protections is the assurance that Evidence Codesection 352 would remain fully operative in the application of section 1108. To this end, the trial court must: Engage in a careful weighing process under section 352. Rather than admit or exclude every sex offense a defendant commits, trial judges must consider such factors as its nature, relevance, and possible remoteness, the degree of certainly of its commission and the likelihood of confusing, misleading, or distracting the jurors from their main inquiry, its similarity to the main offense to the charged offense,its likely prejudicial impact on the jurors, the burden on the defendant against the uncharged offense, and the availability of less prejudicial alternatives to its outright admission, such as admitting some butnotall of the defendant’s other sex offenses, or excluding irrelevant though inflammatory details surrounding the offense. (Falsetta at 917; 6 CT 1542.) Pursuantto the above standards, appellant argued under Evidence 65 Code section 352, the evidence of the sexual assaults and the instant crimes, the remoteness in time and the substantial danger ofprejudice. (6 CT 1542- 1545.) Regarding the application ofEvidence Code 1101 (b), in his Reply, appellant argued that there were insufficient similarities between the two sets of crimes to be relevant to any ofthe issues listed under section 1101 (b). (6 CT 1546 et seq.) Appellant also argued that the application of section 1108 would violate the constitutional provisions against ex post facto application of the law (6 CT 1550) and would violate defendant’s due process and equal protection rights under the United States Constitution. (6 CT 1551 et seq.) During the hearing on this motion, appellant’s counsel also argued that the two sexual assault cases were too remote and dissimilar to have any relevance to Mr. Cordova’s propensity to have committed the 1979 crimes. (8 DT 1773-1774; 1779.) The dissimilarity argument was based upon the fact that the sexual assault crimes lacked any forcible conduct, violence, genital touching, brutality, or injury. (8 RT 1776.) While recognizing that both the dissimilarities and remoteness were factors in its ultimate determination of admissibility, the trial court stated that the question was “one of weighing the probative value (of the sexual 66 assaults given their remoteness, given the similarities, as against the other section 352 considerations: prejudice, misleading the jury, undue consumption oftime andso forth. It’s a weighing process, and that’s what weare really getting to.” (8 RT 1780.) Thetrial court then stated that under section 1108, evidence of a defendant’s propensity to commit a crime through other sexual offensesis relevant to prove the identity of the perpetrator in the charged sexual crime and while the dissimilarities and remoteness goes to the weight of the evidence, in this case the probative value of this propensity evidence was not outweighed by undueprejudice or any other section 352 consideration. (8 RT 1791-1792.) The court further stated the two assault crimes were “very relevant because (they) show that Mr. Cordova had a propensity to commit sexual offenses, and that’s evidence that he’s the one who committed (the instant) sexual offenses, by no means conclusive evidence but evidence in that direction.” (8 RT 1819.) Regarding the admissibility of this evidence under Evidence Code section 1101 (b), the trial court found that while the two sets of crimes were not sufficiently similar to raise an inferenceofidentity, they were similar enoughto raise an inference ofintent. (8 RT 1819; 1822-1823.) 67 C. GENERAL DISCUSSION OF THE LAW OF SECTION 1108 Evidence Code section 1108 reads as follows: 1108. Evidence of another sexual offense by defendant; disclosure; construction of section (a). In a criminal action in which the defendant is accused of a sexual offense, evidence ofthe defendant’s commission of another sexual offense or offenses is not made inadmissible by Section 1101, if the evidence is not inadmissible pursuant to section 352. (b) In an action in which evidenceis to be offered under this section, the people shall disclose the evidenceto the defendant, including statements of witnesses or a summary ofthe substance of any testimony that is expected to be offered in compliance with the provisions of Section 1054.7 of the Penal Code. (c) This section shall not be construedto limit the admission or consideration of evidence under any other section of this code. (d) As usedin this section, the following definitions shall apply: (1) “Sexual offense” means a crime under the law ofa state or of the United States that involved any ofthe following: (A) Any conduct proscribed by Section 243.4, 261, 261.5, 262, 264.1, 266c, 269, 286,288,288a,288.2,288.5, or 289, or subdivision (b), (c), or (d) of section 311.2 or section 311.3,311.4,311.10,311.11,314, or 647.6, of the Penal Code. The seminalcase interpreting whatthe statute meant was People v. Falsetta (1999) 21 Cal.4th 903, 911. Its core holding wasthat by enacting Evidence code 1108, the Legislature implicitly abrogated prior judicial 68 decisions indicating that evidence of a defendant’s propensity to commit certain offenses is per se unduly prejudicial to the defense. By enacting the statute, the Legislature has determined that policy considerations favoring the exclusion of evidence ofuncharged sexual offenses are outweighed in criminal sexual offense cases by the policy considerations favoring the admission of such evidence. The Court ruled that in spite of the fact that the doctrine of exclusion of propensity evidence was “long standing”it was not an “unalterable principle embodied in the Constitution.” (Id at p. 914.) The Falsetta Court stated that the reason why Evidence Code section 1108 did not violate state or federal Due Processis becausethe inclusion therein of the requirementthat a “careful analysis under Evidence Code section 352 must be conducted by the trial court to assure that the defendant has not suffered undue prejudice.” (/d. At p. 911.) The Court then set forth at least some of thefactors thatthe trial court should consider in making this determination. These include the degree of certainly of the Evidence Codesection 1108 offenses, the similarity ofthese offenses to the charged offense, the relevance of the charges, their prejudicial impact on the jurors,the possibility of less prejudicial alternatives and the likelihood of “misleading or distracting the jurors from their main inquiry.” (People v. Falsetta, supra, at pp. 917-919.) . 69 Falsetta also madeit clear thatthetrial judge’s obligation to consider exclusion ofthis type of evidence under Evidence Code section 352 is to be taken seriously. This court directed that this discretion be “broad” and went so far as to state that there is “no reason to assume”that the trial courts will find that the “prejudicial effect of a prior sex offense will rarely if ever outweigh its probative effect.” (People v. Falsetta, supra, at p. 919.) This Court has confirmed that the question of similarity of charged and uncharged crimes remains “relevantto the trial court’s exercise of discretion” under section 1108 as well as section 1101 (b). (People v. Loy (2011) 52 Cal.4th 46,63.) Loy madeclear that while section 1108 expanded the admissibility of sex crime evidence beyondthat allowed under section 1101 (b), this expansion wasnotonly limited by section 352, but also by the parameters of a “similarity” analysis analogousto, if somewhat less stringent than that employed in section 1101 (b). Regarding this “similarity” analysis, this Court reasoned in Loy that violent sex crimes involving serious bodily injury and/or the use of a deadly weapon do not havea “sufficient similarity” for 1108 purposes to non- violent sex crimes that are facilitated by the defendant’s position ofrelative authority over the victims. (bid.; People v. Harris (1998) 60 Cal.App. 4" 70 727.) Regarding this “similarity” analysis, this Court then proceeded to hold that violent sex crimes involving serious bodily injury and/or the use of a deadly weapon do not havea “sufficient similarity” for section 1108 purposesto non-violent sex crimes that are facilitated by the defendant’s position of relative authority overthe victims. (Ibid.) Loy was charged with the violent sexual assault and murderof a twelve-year-old girl. The cause of death was asphyxia due to compression of the face and/or neck and/or body. (Loy, supra, 52 Cal.4th at p. 53.) Defendant, on two separate prior occasions, committed violent sexual assaults against women by meansof choking. (Jd. at pp. 54-55.) Thetrial court admitted these prior offenses under section 1108. Defendant argued to this Court that the trial court erred in admitting this evidence becauseit lacked sufficient similarity to the charged offense. (People v: Loy, supra, 52 Cal.4th at p. 63.) Regardingthe issue ofthe degree of similarity necessary for admission under section 1108,this Court concluded that evidence ofLoy’s prior sexual offenses had been properly admitted under section 1108. This Court noted that while the previous sexual offenses may not have been sufficiently similar to be admissible undersection 1101, they were “not 71 dissimilar.” ([bid.) Loy identified the following points ofsimilarity. (1) One ofthe victims was only four years older than the 12-year-old victim was when she died; (2) the defendant had choked both of his previous victims; (3) the forensic pathologist stated that 12-year-old victim had died of asphyxiation; (4) the forensic pathologist testified asphyxiation was the most common meansofkilling in cases of sexualassault, (People v. Loy, supra, 52 Cal.4th at pp. 63-64.) The Loy Court found evidenceofthe choking to be highly relevant and therefore “weighing in favor of admission. (Ibid.) Several recent court of appeal cases also emphasize the importance of the similarity of the instant and uncharged offensesin thetrial court’s determination as to whether to admit the uncharged offensesin the trial under section 1108. People v. Miramontes (2010) 189 Cal.App.4th 1085, 1096 putthe issue in termsas to whether “prior incidents of sexual misconduct[are relevant and admissible]for the purpose of showing a defendant’s propensity to commit offenses ‘of the same type.’” The court of appeal ruled that the current and twosets of offenses were sufficiently similar for section 1108 purposesin that all involved the non-violent sexual touching and lewd behaviorin front ofyoung children whom defendant knewfrom prior occasions. (Id. at pp. 1090 et seq.) 72 In People v. Escudero (2010) 183 Cal.App.4th 302,the court also recognized the necessity of finding similarities between the charged and uncharged offenses under section 1108. In Escudero, the court found the twosets of crimesto be similar in that all involved taking sexual advantage of females as they slept. The evidence demonstrated that defendant took advantage ofvulnerable females regardless oftheir ages, sexually assaulting them whenit wasparticularly risky to do so. (/d.at 306.) In People v. Hollie (2010) 180 Cal.App.4th 1262, the key issue was whether the sexual encounter between defendant and the victim was consensual. The resolution of the consent issue was primarily dependent uponthe jury’s assessment ofthe credibility of the victim in the charged offense. The defense admitted that defendant andthe victim “had sex,” but forcefully attacked the victim’s credibility and claimed that the sex acts were “all consensual.” “The defense case not only challenged the accuracy of the victim’s perception orrecollection of events, but also asserted that her version of the incident was entirely concocted to avoid the shame and embarrassmentof“having unprotected consensual sex” with a stranger. (/d. at p. 1275.) Therefore, evidence ofthe uncharged sexual assault committed by defendant wasvital to the jury’s effort to evaluate the credibility of the victim and determine if her account of a forcible sexual assault was 73 accurate. (/d. at p. 1276.) D. APPLICATION OF LAW TO THE INSTANT CASE Comparing these casesto the instant case, it is clear that the dissimilarities between the murder of Cannie Bullock in 1979 and the sexual touching ofthe two children in the 1990's are so compelling as to negate any inference of propensity. The twosets of crimes were not only different in the commission, they were not even ofthe same generaltype. The murder wasa horrible violent crime, committedin the dark of night in such a waythat the victim would not beleft alive to testify against the perpetrator. Ostensibly, it was planned to some degree. The perpetrator waited until the adults that lived in the house were not home, gainedillegal entrance, murdered Cannie and disappeared from the scene. In the 1990's cases, there was neither threat nor violence. The crimes were poorly conceived and apparently unplanned. Appellant impulsively entered the roomsofsleeping children and fondled them. He stopped when they told him to stop and did nothing to prevent them from reporting these incidents to their parents or the police. There were other adults in the respective houses when the crimes were committed. While the two uncharged incidents might have been admissible vis a vis each other, they were not admissible under section 1108 as to the instant 74 offense. They proved nothing about a propensity of appellant to commit a pre-planned violent rape and murder. To state that a man who has the propensity to commit non-violent, non-injury producing, fondling-type crimes also has the propensity to commit felony rape-murderdefies logic. If such were the logical conclusion, then it could be said that a man who once committed a shoplifting offense has the propensity to commit a vicious felony robbery-murder, underthe theory that both sets of crimes involve the taking of property. Appellant’s position is fully supported by this Court in its decision in People v. Abilez (2007) 41 Cal.4th 472. As with Loy and the above cited court of appeals cases, Abilez reviewed section 1108 in the context of relevance:that is, whether the uncharged offense supported an inference of a defendant’s propensity to commit the charged offense. To arrive at the answerto this question, this Court examinedthe similarities of the charged and uncharged offenses and their temporal remoteness from one another. Unlike the factual situation in Loy, the charged and uncharged offenses were notall crimes of violence. In Abilez, the defendant and a co-defendant were charged with the sodomy-murderofa single victim. Abilez attempted to proveto the jury that it was his co-defendant, Vieyra, who did the actual crime. To this end, he attempted to introduce into evidence, under the 75 umbrella of both Evidence Code sections 1101 (b) and 1108, Vieyra’s 1973 juvenile adjudication for unlawful attempted sexual intercourse with a minor. This Court first discussed the admission ofprior illegal sexualacts undersection 1101 (b). It cited to its seminal decision in People v. Ewoldt (1994) 7 Cal.4th 389, stating the overarching concern in the admission of other crime evidence to convict a defendant of another crimeattrial. “Because evidence ofother crimes may be highly inflammatory, its admissibility should be scrutinized with great care.”(Abilez, supra, 41 Cal.4th at p. 501.) (Emphasis provided.) This Court then exercised that extreme care by employing the Ewoldt case in reviewing the admissibility of the prior sexually related offense to prove identity under Code section 1101 (b). To prove identity the “pattern and characteristics of the crimes must be so unusual anddistinctive to be like a signature,” so that “the highly unusual and distinctive nature of both the charged and unchargedoffensesvirtually eliminates the possibility that anyone other than the defendant committed the charged offenses.” (Ibid; Ewoldt at p.403; People v. Balcom (1994) 7 Cal.4® 414, 425.) The Court then ruled that due to the fact that the prior crime, while sexual in its general nature, was “so different from the instant crime” there was no 76 inference can be drawn from the prior crime that would lead to evidence that identifies defendantas the perpetrator of the instant offense. (Abilez, supra, 41 Cal.4th at p. 501.) In turning to its analysis under section 1108, the Abilez Court used the sametype ofanalysis as it performed in determining that the evidence of the prior sexual offenses was inadmissible to prove defendant’s identity in the sexual murder under section 1101 (b). This Court cited to Falsetta in explaining its decision. Rather than admit or exclude every sex offense a defendant commits, trial judges must consider such factors as its nature, relevance, and possible remoteness, the degree of certainly of its commission and the likelihood of confusing, misleading, or distracting jurors from the main inquiry, its similarity to the chargedoffense, its likely prejudicial impact on the jurors, the burden on the defendant in defending against the uncharged offense, and the availability of less prejudicial alternatives to its outright admission, such as admitting somebut not all of the defendant’s other sex offenses, or excluding irrelevant though inflammatory details surrounding the offense. (Emphasisin original text) (People v. Abilez, supra, 41 Cal.4th at p. 502 citing to People v. Falsetta, supra, Cal.4th at p. 917.) This Court then foundthat the remoteness and lack of similarity of the 1973 sex crimeto the instant offense precluded the use of the 1973 77 crime undersection 1108, (Abilez at p. 502.) While this court did not specify the degree of similarity needed to qualify a prior sex crime for admission under section 1108, it did analogize the weighing processto that used in section 1101 (b).did.) Abilez confinedits analysis to relevancy. People v. Harris, supra, 60 Cal.App.4th 727 discussed the related issue of thé Evidence Codesection 352 analysis that must be done on section 1108 evidenceto assure that this section doesnot violate a defendant’s due processrights. In Harris, defendant, a mental health nurse was accused of sexually preying upon women who were vulnerable to his advances due to their mental illnesses. (Ud. at p. 730.) Defendant never used any violence against these women.(/d. at 731-732.) The defenseto these allegations was that the women in question were hallucinating due to their mental condition. (/bid.) Over the objection of defense counsel, thetrial court permitted the prosecutorto introduce evidenceof a vicious rape and assault with a deadly weapon committed by defendant 23 years before the charged offenses. (Harris at p. 733-735.) The prosecutor took full advantage of this by arguing to the jury that the evidence ofthe prior rape proved that defendant assault those who couldn’t fight back. (/d. at 735.) The court of appeal overturned defendant’s conviction because the 78 evidence ofthe prior rape and assault with a deadly weapon charge was inadmissible under section 352, and that defendant’s right to due process of law wasviolated by its admission of evidence against him. In doing so, the court of appeal discussed the meaning ofthe term “prejudice” under section 352 citing to this Court’s holding in People v. Zapien (1993) 4 Cal.4th 929, 958. The prejudice which section 352 is designed to avoid is not the prejudice or damage to a defense that naturally flows from relevant highly probative evidence. [Citations omitted.] Rather, the statute uses the word in its etymological sense of “prejudging” a person or cause based upon extraneous factors.” (Harris at p. 737.) The court of appeal focused upon both the remoteness ofthe earlier rape and the dissimilarity between it and the charged crimes in makingits determination of section 352 prejudice. While makingit clear that there is no “bright line rule” as to the amount of time that passed between the charged and uncharged crimes before there is prejudice, Harris held that “23 years is a long time.” (Harris at p. 739; see People v. Burns (1987) 189 Cal. App.3rd 734, 738.) Further, the fact that there was no evidencethat defendant was involved in any serious wrongdoingin this 23 year period supported the notion that the admission ofthe evidenceofthe prior rape 79 wasprejudicialin the trial of the charged offenses. ([bid.) Regarding the issue of similarity, the Harris court madeclear that the commission of a violent sex offense says virtually nothing about a defendant’s propensity to commit other types of non-violent sex crimes. (Harris at p. 740.) The court of appeal drew a comparison with the similarities required for admission of other crime evidence under Evidence Code section 1101(b), stating that while the similarity in section 1108 cases need not to be of the same degree as in 1101 (b) cases, there hasto beat least a “meaningful similarity” between the two sets of crimesin 1108 cases for there to be any probative value even in a propensity sense. (Ibid.) Placing the facts of the instant case upon the legal template created by this Court in Abilez, and the court of appeals in Harris, it is clear that the two sexual assault cases should not have been admitted by thetrial court. Asstated above,the entire legislative purpose of section 1108 was to suspend the general law against propensity evidencein certain sex crime cases. However, the law did not obviate the necessary relevant connection between the charged and uncharged crimes. There must bea requisite degree of similarity and temporal nexus betweenthe twosets of offenses. Asin Abilez, in the instant case the 1992 and 1997assaults fail the relevancytests for reasons of both dissimilarity and remoteness. The instant 80 case involved chargesofa violent rape and murder of a younggirl. It was committed in such a waythat the assault took place in a house whére the victim was alone and unprotected, and ended with the death of the only witness. The 1992 and 1997 crimes were completely dissimilar. While they involved some sexual contact, the crimes involved no force, violence, or threat whatsoever. Appellant never attemptedto silence the young witnesses with violence or threats thereof. These were crimes of impulse, committed in the residence where other adults were present, where discovery was almost assured. Other than the fact that the victims wereall minors, there were no similarities at all between the twosets of offenses. Further, not only was there 13 and 17 years respectively between the instant and 1992 and 1997 crimes, the non-charged crimes occurred after the instant offense. While nothing in section 1108 specifically precludes the use of sexual offenses that occurredafter the charged offense, this court has never ruled on this issue. The vast majority of reported cases that approve the use of section 1108 to show propensity to commit the charged offense deal with other crime evidence that occurred before the charged offense. Logically, there can belittle doubt that the relevancy ofpropensity evidence as to the identity of the perpetrator of a charged offense is muchstrongerif the uncharged offense occurred before the charged offense. The reason for 81 this is obvious; incidents that occurred before the instant offense would tend to demonstrate a propensity to commit sexual offenses that clearly preexist the charged offense. On the other hand, events that occurred over a dozen years after the charged offense do not necessarily speak to a defendant’s predisposition many years before. Forall the above stated reasons, the trial court erred in using Evidence Code section 1108 as the means of admitting the 1992 and 1997 offenses before appellant’s murderjury. In doing so, the court violated appellant’s right to due process of law underthe Fifth Amendmentto the United States Constitution and the concomitant provisions of the California Constitution and the case law for our courts. A trial court error of federal constitutional law requires the prosecution to bear the burden ofproving that the error was harmless beyond a reasonable doubt. (Chapmanv. California (1986) 386 U.S.18, 24.) The prosecution cannot meet this burden. This entire judgment must be reversed. E. DISCUSSION OF THE LAW OF SECTION1101 (b) In its Motion to Introduce the Evidence UnderSection 1108, the prosecution also maintained that the evidence ofthe uncharged offenses was properly introduced under Evidence Code section 1101 (b) to prove intent. (5 CT 1278.) The prosecution maintained that appellant’s plea of not 82 guilty “puts all of the elements of the murder and special circumstancesin issue for the determination of the admissibility of evidence ofpast misconduct.” (People v. Balcolm, supra, 7 Cal. 4" at p. 422.) As such, the - prosecution arguedthat in the instant case it “must prove appellant’s deviant sexualinterest in young andhelpless people.” (5 CT 1278.) Evidenceof intent is admissible to provethat if the defendant committed the act alleged, he or she did so with the intent that comprises an element ofthe charged offense.“In proving intent, the act is conceded or assumed; whatis soughtis the state of mind that accompaniedit. [Citations omitted.|” (People v. Ewoldt, supra, 7 Cal.4th at p. 394, fn 2.) In order to be admissible to prove intent, the uncharged misconduct must be sufficiently similar to support the inference that the defendant “probably harbored the same intent in each instance.’ [Citations.]” (People v. Robbins (1988) 45 Cal.3d 867, 879; see People v. Ewoldt, supra, 7 Cal.4th at 402.) The degree of similarity betweenthe uncharged act and the charged offense required in to prove intentis less than the similarity needed to prove identity. “[T]he recurrenceof a similar result...tends (increasingly with each instance) to negative accident or inadvertence or self-defense or good faith or other innocent mental state, and tends to establish (provisionally, at least though notcertainly) the presence ofthe normal, i.e., criminal, intent 83 accompanying such an act....°(2 Wigmore, supra, (Chadbourn rev. ed. 1979) §§ 302,p. 241.) The prosecution’s argumentfails for two reasons.First, this is not a case whereit is necessary to negate “inadvertence,self defense or good faith.” In the instant case, appellant was charged with first degree murder with the special circumstances allegations that the murder was committed while the defendant was engaged in the commission or attempted commission of the crimes of rape and/or lewd and lascivious acts upon a child under the age of fourteen years. (California Penal Code sections 187, 190.2 (a) (17).) While the prosecutor relied on the legal bromide that once a defendant has been charged with a crime, all elements of the crime are at issue, the reality of this case is that the evidence in the case leaves no issue of intent at all. When a female is murdered in the course of a vicious rape, there can be no conceivable question as to the actor’s intent. The crime of rape is a generalintent crime. It only requires the perpetrator’s intent to commit sexual intercourse without the consent ofthe sexual partner. (Frank v. Superior Court (1989) 48 Cal.3d 632, 642.) As indicated, this is not a case where there could have been a mistake, good faith or inadvertence on part ofthe defendant. To suggest otherwise, wouldto create a legalfiction, 84 a pretext to allow before the jury prejudicial evidence to “prove” a non- issue. More importantly, the two sets of crimes are so dissimilar that they cannot possibly support the inference that the defendant “probably harbored the sameintent in each instance.” The intent of the fondling incidents was just that: a non-violent desire to gratify oneselfby touching young children. No force was used or intended. Appellant stopped immediately when the children indicated that they did not consent. The murder of Cannie Bullock — evinced a completely different, darker and more savageintent: a forcible rape with physical injury and the murderofthe victim. The fact that the crimes were committed against young people does not mean that were committed with the sameintent. Ifthe instant case involved the fondling of a child, it would be relevant to admit the other non-charged crime to disprove any proofor inference of inadvertence or mistake. However, such is not the case. Non-charged fondling cases no more provetheintent to commit rape andkill than a minorassault of an uncharged victim would prove intent to kill in the murdertrial of another victim. The attempt to link these two classes of dissimilar crimes by a far-fetched theory on intent was nothing less than an obviouspretext to avoid the prohibitions ofEvidence Code section 1101 (b). 85 Forall ofthe above stated reasons, thetrial court erred in using Evidence Codesection 1101 (b) as the means of admitting the 1992 and 1997 offenses before appellant’s murderjury. In doing so, the court violated appellant’s right to due process of law under the Fifth and Fourteenth Amendments to the United States Constitution, the concomitant provisions _ of the California Constitution, and the case law promulgated by the courts. A trial court error of federal constitutional law requires the prosecution to bear the burden ofproving that the error was harmless beyond a reasonable doubt. (Chapman v. California, supra, 386 U.S.at p. 24.) The prosecution cannot meetthis burden. The entire judgment must be reversed. IU. APPELLANT’S RIGHT TO DUE PROCESS OF LAW UNDER THE FIFTH AND FOURTEENTH AMENDMENTSOF THE UNITED STATES CONSTITUTION WAS VIOLATED BY THE TRIAL COURT’S REFUSAL TO ORDER DISCOVERY OF REQUESTED MATERIAL EVIDENCE A. PROCEDURAL AND FACTUAL SUMMARY In an informal discovery letter dated January 4, 2005, appellant requested of the prosecution the following discovery regarding the DNA testing done by Forensic Science Associates (hereinafter referred to a 86 “FSA.” (See AOB StatementofFactsat p. 13.)* Instances of unintended DNAtransfer or sample contamination: Please provide copiesofall records maintained by the laborator(ies) that document instances of unintendedtransfer of DNAor sample contamination, such as any instances ofnegative controls that demonstrated the presence of DNAorthe detection of unexpected extra alleles in control or reference samples, and any corrective measurestaken. (3 CT 601, 606.) In a July 12, 2005 responseletter, the prosecutor refused to tender this discovery, stating that it did “not believe that the information you are . requesting is relevant, nor is it under our custody or control.” (3 CT 620.) On November 14, 2005, appellant filed a Motion to Compel Discovery. (3 CT 583.) In part, that Motion stated that appellant, through informal discovery, had previously requested instances ofDNA transfer and/or sample contamination committed by “FSA,” the private lab that did some ofthe DNAanalysis in this case. Appellant contended that he had not received this information in spite of the fact that he wasentitled to it becauseit was relevant to the history of the quality ofwork done by FSA.(3 CT 586.) Further, appellant pointed outto the trial court that the American 4. The same request was made in a similar informal discovery letter dated May 6, 2005. (3 CT 606) 87 Society of Crime Laboratory Directors, the organization which provides accreditation for forensic laboratories, requires accredited crime laboratories that conduct DNAtesting to create and maintain records documenting instances of contamination which occurred during testing. (4 CT 767.) The prosecution’s opposition asserted that FSA did not keep such records. Instead, they publish a report for each project they undertake. If any such instances had occurred, they would be duly notedin the report. Copies ofthese reports are kept at FSA on shelves, and numberin the hundreds, spanning a period of over 20 years. There is no individual master list maintained that would document and instances of unintended transfer or contamination. To create such a list would require an individual to manually go through each ofthe hundredsofreports that exist. This is simply too onerous a burdento place on FSA. (3 CT 627.) The prosecution maintained that there was “no legal requirementfor FSA to maintain such a masterlist, and no legal justification for requiring them to create sucha list.” (3 CT 627.) The prosecutor further stated that the controlling statute does not permit discovery of this information because it is not relevant to this particular case. bid.) While it is true that the defense is entitled to any | exculpatory evidence, (Penal Code section 1054 (e)), the defense has not make a showingthat 88 their request is for exculpatory evidence. Exculpatory evidenceis defined in Brady v. Maryland(1963) 373 U.S. 83, 87 as evidence that is material to either guilt or punishment. Case law states evidence is “material’’only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.” (Citation omitted)... In this case the defense is asking for some 20 years of reports that may or may not contain evidence of intended transfers and/or contamination in totally unrelated cases. There has been no showing that such an event occurredin this case, or even may have occurredin this case. There has been no showingthat, assuming such transfers occurred at some point overthe last twenty years, they are in any wayrelated to the case, i.e. (Sic) the same lab techs were involved, or the sametesting proceduresutilized. The request is overbroad and should be denied. On December8, 2005,the trial court conducted a hearing on appellant’s motion. (2 RT 215 et seq.) The court credited the prosecutor’s argumentthat the gathering of information from FSA documenting contamination in its cases would require examination of hundredsoffiles over many years, records that occupy “a whole wall of binders.at the FSA labs.” (2 RT 219-221.) Thetrial court also questioned whether appellant wasentitled to the discovery soughtundereither PC 1054or the United States Constitution. (2 RT 227.) The court stated that appellant had made no showingthat the information sought was exculpatory and thatat this pointin time, 89 appellant’s request was “just a fishing expedition.” (2 RT 228.) The court stated that, in reality, what the defense was seeking was the prosecution to producethe recordsofall of the FSA projects so the defense could _ determine if there had been any instances of contamination. The court ruled that appellant wasnotentitled to that information either under Penal Code section 1054 or the United States Constitution. (2 RT 232.) Thetrial court did acknowledge that FSA waspart ofthe prosecution team and that if FSA currently knew of any contamination that might be exculpatory they were under constitutional obligation to produceit for dissemination to the defense. (2 RT 234.) The prosecutor respondedthat Dr. Edward Blake, the owner of FSA nevertold her that any contamination had occurred in the present case. ([bid.) Theprosecutortold the court that when she submitted appellant’s discovery request to Dr. Blake, he stated that it was impossible to produce this sort of information because he had 20 years of reports which would have to be individually read to determine the numberand nature of instances of contamination. (2 RT 235.) The trial court stated that it would not order that anyonereadall ofthe files, but agreed to withholdits final ruling on this matter until Dr. Blaketestified as to this particular pre-trial issue. (2 RT 236-241.) 90 Dr. Biaketestified that hefounded FSA in 1978. While he might remember a few anomalousresults “off of the top of his head” (2 RT 347), his laboratory kept no separate compendium of unintendedtransfers or other contaminationin its testing. (2 RT 345.) He stated that he was in possession of about one thousandcasefiles and it would take up to a week to cull out the separate instances of contamination requested by appellant. (2 RT 349-350.) Dr. Blake then estimated that out of these one thousand files, perhaps twelve have “some sort of misadventure.” (2 RT 357.) Defense counsel argued that while they still maintained appellant wasentitled to all of the information requested, they were willing to limit the temporal scope of the discovery to all instances of unintended of transfer or contamination that occurred betweensixty days before or sixty days after FSA’s testing donein the instant case. ° (2 RT 385.) In spite of this reasonable offer of comprise, the trial court ruled that the defense had failed to make a sufficient showing that evidence of any errors in testing done by FSAin other cases might be relevant to this case (2 RT 394), and denied appellant’s request for the material from FSA on this ground. (2 RT 399-400.) On March 16, 2006, appellant filed an additional Memorandum of 5. The FSA testing in this case took place on November 18, 2002, December 20, 2002 and May 5, 2004. 91 Points and Authorities in Support of Motion to Compel Discovery, along with an accompanying Declaration from Dr. Christie Davis. (3 CT 760 et seq.) This additional Motion was a supplemental request for the discovery previously sought from FSA.In it, appellant reiterated that the items sought regarding the contamination ofDNA samples are material in that they were exculpatory evidence, or might lead to evidence that was exculpatory or useful for the impeachmentofprosecution witnesses. (3 CT 763.) In her Declaration, Dr. Davis specifically stated that “documented instances of unintended DNA transfer or sample contamination should be provided (by FSA) for review as part of the Quality Assurance and Quality Control for forensic DNA testing in this case.” Defense counsel argued that for FSA’stesting results to be permitted before the jury, they must be reliable under People v. Kelly (1976) 17 Cal.3d 24. (3 CT 764.) To achieve the goalofreliability, in 1994 Congress passed the DNAIdentification Act, which indirectly created the DNA Advisory Board (hereinafter “DAB”) to develop national standards for _ quality assurance in DNAtesting. (3 CT 765.) In addition, the Federal BureauofInvestigation also sponsors the Technical Working Group on DNAanalysis methods (herein after “TWGDAM”), which provides a forum for discussing DNAtesting. (3 CT 766.) Counsel further argued “Thefinal 92 authority for standards withing the scientific forensic community is the American Society of Crime Lab Director (hereinafter ASCLD) which provides for lab accreditation.” (3 CT 767.) All these scientific authorities, through specific guidelines either require or suggest that the type of records requested by appellant in this case be kept by a DNAlab. (3 CT 767.) Such guidelines, defense counsel observed, “are deemed the generally accepted practice among the scientific community, therefore, FSA’s noncompliance with the standards constitutes exculpatory evidence. The DNA PCRtesting in this matter must endure a third-prong Kelly hearing beforeit is admissible, to determine that the laboratory conducted in accordance with generally accepted procedures.” (Lbid.) Because FSA did not keep records of contamination incidents, defense counsel argued the laboratory was not in compliance with the DAB, TWGDAM or ASCLDguidelines. As these guidelines are considered the generally scientifically accepted practice in the DNA community, the failure to keep these records should be considered exculpatory evidence under Kelly and People v. Venegas (1998) 18 Cal.4th 47, 90-93. Proof of FSA’s noncompliance with national standards would greatly weaken the strength of the evidence it offers and should be discoverable. (3 CT 768.) Counsel also argued that the records themselves may contain 93 exculpatory evidence in that “the rate of contamination is one factor in determining the lab’s overall rate of error in the testing it performs.If FSA’s records show a great deal of contamination, FSA’s results will be deemedlessreliable, and therefore less credible.” (3 CT 769.) In addition, counsel argued that since the prosecution intended to introduce the testimony ofDr. Blake andthe results ofFGDSA’s testing, evidence that the laboratory’s procedures sometimesresulted in error and contamination would serve to impeach Dr. Blake’s credibility.bid.) In its Opposition to defendant’s supplemental briefing, the prosecution argued that the issue was not whetherthere had been any incidents of “misadventure,” “ but whether FSA’s testing methods and documentation of such tests follows generally accepted scientific procedures. These issues can be resolved by testimony by Dr. Blake © regarding FSA methods, as well as any defense evidence to show that the methodsastestified to are inadequate.” (3 CT 790.) On June 5, 2006,the trial court madeits final ruling on this issue, stating that the discovery sought by the appellantwerefiles “completely unrelated” to the instant case andas such the prosecution had “no right and no ability to review thosefiles or compel the laboratory in question, Forensic Science Associates, to produce them.” (4 RT 972-973.) The court 94 further held that the cost and labor involvedin the review ofthesefiles “would be considerable.” (4 RT 973.) The court also reversed its prior ruling and held that FSA was not part ofthe “prosecution team” with respect to the files in question and that these files were notin the actual or constructive possession of the prosecutor. “Accordingly, the defendant’s request to producethefiles, to compel the DA (sic) to review them for exculpatory information, is denied. This denial is without prejudice to the defendant seeking to subpoenasaid files or records directly from FSA, with appropriate notice, if any is required, given to the subjects of thosefiles.” (4 RT 973.)° B. INTRODUCTION TO ARGUMENT Thiscourt has madeclear that “a defendant generally is entitled to discovery of information that will assist in his defense or be useful for impeachmentor cross-examination of adverse witnesses.” (People v. Memro (1985) 38 Cal.3d 658, 677.) Any defense motion to obtain such information “must describe the information sought with somespecificity and provide a plausible justification for disclosure. The trial court’s ruling on a discovery motionis subject to review for abuse ofdiscretion.” (People 6. Counsel did not attempt to subpoena these records. However, considering the trial judge’s insistence the evidence sought was “unrelated” to the instant case, such an action would have beenfutile. 95 vy. Jenkins (2000) 22 Cal.4th 900, 953.) As recently acknowledged by the United States Supreme Court, recent advances in DNA technology haveessentially created anew gold standard for proof in certain types of criminal cases. “It is literally possible to confirm guilt or innocence beyond any question whatsoever,at least in some categories of cases.” (District Attorney's Officefor the Third Administrative District v. Osborne (2009) 557 U.S. 52, 95-96.) In a case such as this, where the prosecution presentedtrial testimony that the DNA deposited on or in a rape victims body “matched”a control sample donated by defendant,it is essential for the prosecutor to turn overto the defense any evidencethat will tend to demonstrate that the DNA evidence was not as conclusive as the government would have the jury believe. The overwhelming evidentiary power of such DNAtesting in the eyes of any jury is so great that full defense investigation into all possibly exculpatory aspects of such testing is mandated by both the due process clause of the United States Constitution and the California discovery law. This is especially true in the instant case where no other evidencetied appellant to the scene, let alone to the crime. DNA evidence wasnot an integral part of the prosecution’s case, it was their entire case. Appellant’s trial counsel argued that because separate records of contamination were not 96 kept by FSA, they were not in compliance with either the DAB, TWGDAM or ASCLD guidelines. As these guidelines are considered the generally scientifically accepted practice in the DNA community, the failure to keep these records should be considered exculpatory evidence. (bid.; See People v. Venegas, supra, 18 Cal.4th at pp. 90-93.) In the instant case, there was no question that the evidence sought from FSA was exculpatory to the extent that it might have revealed instances wheretesting by that laboratory yielded anomalous or erroneous results and instances where technicians failed to follow the laboratory’s protocols and techniques. This information would have served to aid in the impeachment of Dr. Blake’s testimony regardingthe results ofhis testing. Although Dr. Blake minimizedthe significance of his laboratory errors, the weight of such error was the jury’s province. This was especially true in that FSA was the only independent laboratory that did any DNAtesting in this case. The trial court failed to recognize the relevance ofthis information although it was directly relevant to the trustworthiness of the only evidence the prosecution could marshal to convict him. Further, the trial court also mistakenly denied appellant’s request that the prosecution produce the FSA files for appellant on the ground that the prosecutor wasnotin the actual or constructive possession ofthe requested 97 information because FSA wasnotpart ofthe “prosecution team.” (4 RT 973.) Considering the above law, this Argument will be presented in three parts; (1) whether the prosecutor was mandated by law to obtain the information sought from FSA; (2) whether there were any public policy considerations in favor ofnon-disclosure of the information sought; and (3) whetherthe disclosure of this particular information was required under the Due Process Clause of the Fifth and Fourteenth Amendmentsto the United States Constitution and/or California’s statutory discovery scheme. C. FSA WAS PART OF THE “PROSECUTION TEAM,” THEREFORE, THE PROSECUTION HAD THE OBLIGATION TO OBTAIN THE INFORMATION SOUGHT A prosecutor’s duty under Brady to disclose material exculpatory evidence extends to evidence the “prosecution team” knowingly possesses or has the right to possess. (People v. Superior Court Barrett) (2000) 80 Cal.App. 4" 1305, 1315.) The “team” obviously includes both investigative and prosecutorial agencies and their personnel. (See Jn re Brown (1998) 17 Cal.4th 873, 879.) In Kyles v. Whitley (1995) 514 U.S. 419, 437-438,the Supreme Court held that a prosecutor has a duty to learn of favorable evidence knownto other prosecutorial and investigative agencies acting on 98 the prosecution’s behalf, including police agencies. The scope ofthe prosecutorial duty to disclose encompasses exculpatory evidence possessed by investigative agencies to which the prosecutor has reasonable access. (See People v. Robinson (1995) 31 Cal.App.4th 494, 499.) In addition to police and other governmental investigative agencies, a prosecutor has a duty to search for and disclose exculpatory evidence if the evidence is possessed by a person or agency that has been used by the prosecutor or the investigating agency to assist the prosecution or the investigating agency in its work. The important determinant is whether the person or agency has been “acting on the government’s behalf” (Kylesv. Whitley, supra, 514 U.S.at p. 437) or”assisting the government’s case.” Un re Brown, supra, 17 CalAth at p. 881.) On a showingofplausible justification, discovery should be ordered even if compiling that information would be burdensome. (Bortin v. Superior Court (1976) 64 Cal.App.3d 873, 878; Robinson v. Superior Court (1978) 76 Cal.App.3d | 968, 982-983.) Thetrial court’s ruling that FSA wasnot part of the “prosecutorial team” ran contrary not only to the above law, but to commonsense,as well. _ FSA washired by the prosecutorto do critical forensic testing in this case. The recordis clear that the prosecutorordered such testing with a view to 99 usingits results in its case-in-chief. There can be no doubt that FSA was “acting on the government’s behalf.” If the Court held otherwise, prosecutors could avoid its discovery obligations, wheneverit wished by simply subcontracting its case work to private investigatory or scientific companies and then claiming that they have no obligation to disclose evidence generated by these otherwise private concerns. The prosecution in this case had the obligation to obtain the information sought from FSA. The next question to be examined is whether there were any public concerns to be considered by this Court in deciding this issue. D. ANY PUBLIC.POLICY CONSIDERATIONS FAVOR DISCLOSURE This Court has held that the right of the accused to obtain discovery is not always absolute. Thetrial court retains the discretion to protect against the disclosure of information which might “unduly hamper the _ prosecution or violate some other legitimate governmentalinterest,” especially when such information does not directly relate to the defendant’s guilt.. (People v. Avila (2006) 38 Cal.4th 491, 606; see People v. Luttenberger (1990) 50 Cal.3d 1, 21.) 100 For example, juvenile case files are often confidential by operation of law, and their inspection is limited by statute. (See Welf. & Inst.Code, §§ 827, 828; Cal. Rules of Court, rule 1423(a), (b).) In addition, the inspection of personnelrecordsofpoliceofficers is also limited under both statute and case law. (California Evidence Code section 1043; Pitchess v. Superior Court (1974) 11 Cal.3d 531.) There was nothing in the discovery of the information requested that | would have “unduly hamper(ed) the prosecution or violate(d) some other legitimate governmentalinterest.” (People v. Avila, supra, 38 Cal.4th atp. 606.) This was not a case, as in Avila, where the requested material consisted of certain juvenile records otherwise protected by the law. The only “interest” to oppose the interest of appellant to a fair trial and right to competent representation of counsel, was embodied in the prosecutor’s claim that it would have been too muchofa burden to gather the information requested. Neither this Court, nor the federal courts have ever held that inconvenience to the prosecutoror his agents, standing alone,is a competing interest in any criminalcase, let alone a capital prosecution. While there are many other examples of such public policy in the law, one thing is clear. No such policy against disclosure exists in a case such as this. There is no conceivable public interest in protecting forensic 101 laboratories from the revelation of their mistakes. Considering the impact of a DNA “match”on a criminaltrial, the public interest lies in complete revelation of such records so that juries, comprised almost exclusively of lay people, can best evaluate the true implication of a DNA result that claims to be ableto essentially single out a defendant from all personsthat ever lived on earth. There being no public policy against disclosure of the information sought, the next issue to be discussed is whether the law mandated the disclosure of the specific information sought. E. DUTIES OF PROSECUTOR TO REVEAL EXCULPATORY INFORMATION TO APPELLANT _ The prosecution’s obligation to disclose exculpatory evidence stems from two sources. The exact nature of this prosecutorial obligation is dependant upon whetherthat obligation has a constitutionalor statutory basis. According to the seminal case ofBrady v. Maryland (1963) 373 U.S. 83, 87, “the suppression by the prosecution of evidence favorable to the accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” | The obligation of disclosure, as describedin Brady andits progeny, 102 isa sua sponte obligation, pursuant to the due processclause of Fifth and Fourteenth Amendments to the United States Constitution, to disclose to the defense information within its custody or control which is material to, and exculpatory of, the defendant. (Kyles v. Whitley, supra, 514 U.S.at p. 433; Inre Ferguson (1971) 5 Cal.3d 525, 532.) This constitutional duty is independent of and to be differentiated from, the California statutory duty of the prosecution to disclose information to the defense. (California Penal Code§ 1054 et seq.; Izazaga y. Superior Court (1991) 54 Cal.3d 356, 378.) Thespecific statutory obligations of the prosecution read as follows: The prosecuting attorney shall disclose to the defendantor his or her attorney all of the following materials and information, if it is in the possession of the prosecuting attorney orif the prosecuting attorney knowsit to be in the possession ofthe investigating agencies: (a) the names and addresses ofpersons the prosecutorintendsto call as witnessesattrial. (b) Statements of all defendants. (c) All relevant real evidence seized or obtained as a part of the investigation ofthe offenses charged. (d) The existence of a felony conviction of any material witness whosecredibility is likely to be critical to the outcomeofthetrial. (d) Any exculpatory evidence. (f) Relevant written or recorded statements of witnesses or reports of the statements of witnesses whom the prosecutor intendstocallat the trial, including any reports or statements of 103 experts made in conjunction with the case, including the results of physical or mental examinations, scientific tests, experiments, or comparisons which the prosecutor intends to offer in evidence at the trial. (California Penal Code section 1054.1.) 1. Discovery Under the United States Constitution The prosecution has a duty under the Fourteenth Amendment’s due process clause to disclose evidence to a criminal defendant when the evidence is both favorable to the defendant and material on either guilt or punishment. (Jn re Sassounian (1995) 9 Cal.4th 535, 543, citing United States v. Bagley (1985) 473 U.S. 667, 674-678; see also Brady, supra, 373 US. at p. 87.) “Evidence is ‘favorable’if it ...helps the defense or hurts the prosecution, as by impeaching one of the prosecution’s witnesses.” (Sassounian, supra at p. 544.) “Evidenceis ‘material’ ‘only if there is a reasonable probability that, had [it] been disclosed to the defense, the result ...would have been different.’” ([bid.; accord, Kyles v. Whitley, supra, 514 USS. at pp.433-434.) Such a probability exists when the undisclosed evidence reasonably could be taken to put the whole case in such a differentlight as to undermine confidence in the verdict. (Kyles, supra at p. 434; In re Brown, supra, 17 Cal.4th at pp. 886-887.) As the Court explained in United States v. Agurs (1976) 427 U.S. 97, 104, “[a] fair analysis of the holding in Brady 104 indicates that implicit in the requirement of materiality is a concern that the suppressed evidence might have affected the outcomeofthetrial.” (See Bagley, supra, 473 U.S. at pp.674-675.) Moreover, the duty to disclose exists regardless of whether there has been a request by the accused. Further, the suppression of evidencethat is materially favorable to the accused violates due process regardless of whetherit was intentional, negligent, or inadvertent. (People v. Salazar (2005) 35 Cal.4th 1031, 1042; People v. Kasim (1997) 56 Cal.App.4th 1360, 1381; see Strickler v. Greene (1999) 527 U.S. 263, 275, fn.12; United States v. Agurs, supra, 427 U.S. at p. 107; Brady, supra, 373 U.S.at p. 87.) Asstated by Brady, itself, material evidence is “evidence favorable to an accused,”in that “if disclosed and used effectively, it may make the difference between conviction and acquittal.” (Brady, 373 U.S, at p. 87; Cf. Napuev.Illinois (1959) 360 U.S. 264, 269.) As stated by the High Court, “The jury’s estimate of the truthfulness and reliability of a given witness may well be determinative of guilt or innocence, and it is upon such subtle factors as the possible interest of the witness in testifying falsely that a defendant’slife or liberty may depend.” (Bagley, supra, 473 US.at p. 676.) The Brady duty extends to evidence that is both favorable to the accused and material either to guilt or to punishment. (Unites Statesv. 105 Bagley, supra, at p. 674; see Giglio v. United States (1972) 405 U.S. 150, 154.) As a general principle, the standard of prejudice that must be met by a showing of “materiality” as required under Brady does not require by preponderanceofevidence that disclosure of suppressed evidence would have resulted in defendant’s acquittal. (Kyles v. Whitney, supra, 514 U.S.at p. 434.) In determining whether the evidence that the governmentfailed to disclose to defendantsatisfied the materiality test of Brady, the questionis not whether would morelikely than not have received a different verdictif the evidence had been madeavailable, but whetherin its absence he received a “fair trial” that is a trial worthy of the public’s confidence. (Jbid.) Further, the High court in Kyles v. Whitley, supra, 417 U.S. at p. 435-436, held, Oncea reviewing court applying Bagley has found constitutional error there is no need for further harmless-error review. Assuming, arguendo,that a harmless-error enquiry were to apply, a Bagley error could not be treated as harmless, since ‘a reasonable probability that, had the evidence been disclosed to the defense, the result ofthe proceeding would have been different,’ [citations], necessarily entails the conclusion that the suppression must have had’” substantial and injurious effect or influence in determining the jury’s verdict,”’ [citations]....In sum, once there has been Bagleyerror..., it cannot subsequently be found harmless... 106 The High Court has also emphasized tht what constitutes “material” evidence requires that the evidence in question must be considered collectively, not item by item. (Kyles v. Whitley supra, 514 U.S.at pp. 434- 437.) As stated in Agurs, The proper standard of materiality must reflect our overriding concern with the justice of the finding of guilt. Such a finding is permissible only if supported by evidence establishing guilt beyond a reasonable doubt.It necessarily followsthat if the omitted evidence creates a reasonable doubt that did not otherwise exist, constitutional error has been committed. This means that the omission must be evaluated in the contextofthe entire record. If there is no reasonable doubt about guilt whether or not the additional evidence is considered, there is no justification for a new trial. On the other had,if the verdictis already of questionable validity, additional evidence ofrelatively minor _ importance might be sufficient to create a reasonable doubt. (Agurs, supra, 417 U.S. at pp. 112-113.) In addition to the legal standard stated above, the High court has madeit clear that the concept of “materiality” must be considered along with the prosecutor’s unique position in our criminal justice system. As state in Kyle v. Whitley, supra, 514 U.S. at pp. 437-440, While the definition ofBagley materiality in terms ofthe cumulative effect of suppression must accordingly be seen as leaving the government with a degree of discretion, it must also be understood as imposing a corresponding 107 burden. On the one side, showing that the prosecution knew of an item of favorable evidence unknownto the defense does not amount to a Brady violation, without more. But the prosecution, which alone can know whatis undisclosed, must be assigned the consequent responsibility to gaugethe likely net effect of all such evidence and make disclosure when the point of “reasonable probability” is reached. This in turn meansthat the individual prosecutor has a duty to learn of any favorable evidence known to the others acting on the government’s behalf in the case, including the police. But whether the prosecutor succeeds or fails in meetingthis obligation (whether, that is, a failure to disclose is in good faith or bad faith, see Brady, 373 U.S., at 87, 83 S.Ct., at 1196- 1197), the prosecution’s responsibility for failing to disclose known, favorable evidence rising to a material level of importanceis inescapable. His means, naturally, that a prosecutor anxious about tacking too close to the wind will disclose a favorable piece of evidence. See Agurs, 427 U.S. at 108, 96 Sct., at 2399-2400 (“[T]he prudent prosecutor will resolve doubtful questions in favor of disclosure.”’). This is as it should be. Such disclosure will serve to justify trust in the prosecutoras “the representative ... of a sovereignty ... whoseinterest ... in a criminal prosecution is not that it shall win a case, but that justice shall be done.” Berger v. United States, 295 U.S. 78, 88 (1935). Andit will tend to preserve the criminaltrial, as distinct from the prosecutor’s private deliberations, as the chosen forum for ascertaining the truth about criminal accusations... the prudence of the careful prosecutor should not therefore be discouraged. 108 Asstated by the Ninth District Court of Appeal in Gonzalez v. Wong (9" Cir. 2011) 667 F.3d 965, 981 our system, Places a duty [on prosecutors] to refrain from improper methods calculated to produce a wrongful conviction. [citations omitted.] Principal among a prosecutor’s dutiesis to provide a defendantwith all material exculpatory and impeachmentevidenceprior to trial. This obligation recognizesthat significant _advantage the state has over an individual defendant in regards to gathering information, and seeks to level the playing field. We expect our governmentto fight fair and not deny a defendant evidence that could exculpate him or ameliorate the penalty he faces. Only by giving a defendantthis evidence can the government ensurethat “justice is done its citizens in the courts.” [Citation omitted] 2. Discovery Under California Law While the concept of “materiality” isrelevant to the ultimate application of the above Brady law,it is critical to recognize that under California Penal Code section 1054, a defendantis entitled to “any exculpatory evidence” not just “material “ evidence. This Court has held that it is not necessary for a defendant to be able to prove “materiality” before being allowed to even see the evidence in question in pre-trial discovery. (Barnett v. Superior Court (2010) 50 Cal.4th 890, 901.) While to prevail on an appellate claim that the prosecutor suppressed discovery, the appellant must show materiality. bid.) However, no such showing need be 109 made upon request at trial as there is no waythat the defendant can definitively prove the materiality of something they havenotseen.(Ibid.) Appellant has demonstrated in the subsection immediately above that the discovery sought was material under federal law. However, even discounting the materiality issue ofBrady andits progeny, thetrial court erred in not ordering the prosecutor to comply with Penal Code section 1054.1 and surrender the documentation of laboratory error that the prosecutor admitted existed. 3. Application of the Above Law to the Instant Case Thetrial court’s holding that the discovery sought by appellant was “completely unrelated” to the instant case comports neither with law northe facts of this case. Evidence directly related to the general performance of the FSA lab not only wasrelevant to the jury’s determination as to the truthfulness and reliability of the prosecution’s witnesses (United States v. Bagley, supra, 473 U.S.at p. 676), but also to the actual determination by the trial court as to whether this evidence should have even been allowed before the jury. Concerning the issue of reliability, in People v. Kelly, supra, W7 Cal.3dat p. 30, this court set forth the following “general principles of admissibility” for opinion testimony based on newscientific techniques: 110 “(1) [T]he reliability of the method mustbe established, usually by expert testimony, and (2) the witness furnishing such testimony must be properly qualified as an expert to give an opinion on the subject. [Citations.] Additionally, (3) the proponent ofthe evidence must demonstrate that correct scientific procedures were used in the particular case. (Emphasis provided.)” In the instant case, this court held extensive “Kelly” hearings, both to determine whether STR DNAtesting done by the prosecution had been afforded general scientific acceptance in the relevant scientific community (People v. Venegas, supra, 18 Cal.4" at p.74), and to determine whetherthe laboratory in question “adopted correct scientific procedures” in doing the test. (People v. Roybal (1998) 19 Cal.4th 481, 506.) This so called “third-prong” of the “Kelly-Frye ”standard for scientific testing operated independently from the question whether STR testing was any longer considered a newscientific technique according to the first prong of “Kelly” Even assumingfor the sake of this argument, that the use of the general STR process had been accepted by the courts and was no longer subject to a first-prong analysis, this third-prong requirementis still a prerequisite before the trial court can allow any testimony before the jury. “Due to the complexity ofthe DNA multisystem identification tests 111 and the powerful impact that this evidence may have on a jury,satisfying Frye [i.e., satisfying Kelly’s first prong] aloneis insufficient to place this type of evidence before a jury without a preliminary critical examination of the actual testing proceduresperformed.” (People v. Axell (1991) 235 Cal.App. 3d 836, cited by People v. Venegas,supra, 18 Cal.4th at p. 80.) Althoughthe court in Axell was writing about the earlier RFLPtesting technique, its observation holds true for the testing methods based on STR’s, which are perhaps even more complex. However, the sametrial court that granted appellant’s request for a third-prong hearing regarding FSA’s useofthe Identifilertest kit, itself, it unaccountably denied appellant the opportunity to garner evidence that would have demonstrated to the very samecourt that FSA may well have failed to follow correct scientific procedures, thereby precluding the admission of the FSA testing results. By Dr. Blake’s own admission, there had been several incidents in his lab where the procedures followed byhis laboratory yielded tainted and questionable results. Hetestified that he founded FSA in 1978. He remembered a few “anomalousresults” “off of the top of (his) head.” (2 RT 347.) However, he stated that no separate compendium was kept on unintendedtransfers or other contamination in testing donebyhis lab. (2 RT 345.) Hestated that he was in possession of 112 about one thousandcases files and it would take up to a week to cull out the separate instances of contamination requested by appellant. (2 RT 349-350.) Dr. Blake then estimated that out of these one thousandfiles, perhaps twelve have “somesort of “misadventure.” (2 RT 357.) The fact that Dr. Blake deliberately chose not to keep these sort of records stands in direct contrast with the standards ofthe scientific community. Recognizing that the impact of a DNA “match”on a jury is inestimable, various government agencies have undertaken lengthy reviews to assure that DNA “matches”arise from only the mostreliable procedures. As appellant argued in his Memorandum ofpoints and Authorities in Support ofthe Motion to Compel Discovery (3 CT 639 et seq), to achieve the goal of reliability, in 1994 Congress passed the DNAIdentification Act, whichindirectly created the DNA advisory Board (hereinafter “DAB”) to develop national standards for quality assurance in DNAtesting. (3 CT 765.) In addition, the Federal Bureau of Investigation also sponsors the Technical Working Group on DNA Analysis Methods(hereinafter “TWGDAM”), which provides for a forum for discussing DNAtesting. (3 CT 766; see People v. Hill (2001) 89 CalApp4th 48, 56.) Further,-as stated in appellant’s Motion, “The final authority for standards within the scientific forensic community is the American Society 113 of Crime Lab Directors (hereinafter as “ASCLD”) which provides for lab accreditation.” All ofthese scientific authorities, through specific guidelines, either require or suggest that the type of records requested by appellant in this case be kept by a DNAlaboratory. (3 CT 767.) Such guidelines are deemed the generally accepted practice amongthe scientific community, and therefore, FSA’s non-compliance with these standards constitutes, in and ofitself, exculpatory evidence. There is no question that it was the prosecutor’s choice to use FSA to perform their laboratory work in that case, and there is no question thatit was FSA’s choice not to keep these type of records, even though it was contrary to the national standards. (2 RT 222-223.) However, FSA’s refusal to keep a current compendium onthese errors should not inure to the detriment of appellant. To allow the prosecution to avoid tendering this discovery because they chose a laboratory which, contrary to all industry standards, did not keep the information requested, would defeat the requirements of due process. The fact that it would have required FSA to spend sometime making up forits failure to follow such basic standards should not have been even considered by the trial court. If FSA felt that it was not worth their time to do what it should have been doingall along - 114 according to the standards, the remedy wasforthe trial court to impose sanctions on the prosecution, not punish appellant. The fact that Dr. Blake characterized the mistakes his laboratory made as simply a few “misadventures”did not render the material sought any less material. To allow the opinion of a prosecutor’s expert’s biased evaluation of his own work to stand in place of documentary discovery of the way that work was done, would stand the entire adversarial system on its head. Yet that is exactly what transpired in this case. By refusing to allow discovery ofthe files that demonstrated a pattern of error in the workings of Dr. Blake’s laboratory, the trial court adopted the prosecutor’s argument that the cross-examination of Dr. Blake aboutthereliability of his laboratory met due process standards. In its Opposition to Appellant’s supplemental briefing, the prosecutor stated that the issue was not whetherthere had been any instances of “misadventure,” “but whether FSA’s testing methods and documentation of such tests follows generally accepted scientific procedures.” The prosecutor then opined that these issues could be resolved by Dr. Blake’s testimony regarding FSA methods, as well as any defense evidence to show that the methodsastestified to are inadequate.” (3 CT 115 790.) The prosecutor cited no authority to support this claim. The reason for this failure is obvious as such a position, under Brady andits progeny, runs contrary to the most basic principles of due process and confrontation as mandatedby the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution. The prosecutor presented evidencethat essentially identified appellant as the only possible donorin the known universe’ of the male portion ofthe DNA foundin the victim’s vagina. Thetrial court’s ruling foreclosed the discovery of documentation that could refute this assured conviction. The DNAevidence wasnot only central to the prosecutor’s case;it was the prosecutor’s case. Withoutit, there would not have been enough evidence to even effect an arrest, let alone a conviction. In spite of this, the trial court deprived appellant of the opportunity to fully impeach both the FSA witnesses and the generalreliability of FSA’s testing protocols and methods. Citing to Crawford v. Washington (2004) 541 U.S. 36, 61, the United 7. As related in the Statementof Facts, the test results obtained by FSA matched appellant to the sperm found in Cannie to a factor that ranged from quadrillion to quintillions. There are only approximately 3 % billion males on earth. 116 States Supreme Court in Bullcoming v. New Mexico (2011 131 S.Ct 2705, confirmed that the Sixth Amendment’s Confrontation Clause confers upon the accused “[i]n all criminal prosecutions,...the right...to be confronted with the witnesses against him.” The right to confrontation is rendered hollow if the finder of fact has already assumed that the witness being cross-examinedis reliable so that any cross-examination is limited to the words out of the witness’s mouth without consideration of extrinsic material to impeach him. Once again, focus must be placed on the High Court’s equation of proper discovery and the jury’s search fortruth. “The jury’s estimate of the truthfulness andreliability of a given witness may well be determinative of guilt or innocence, and...it is upon such subtle factors such as the possible interest of the witness in testifying falsely that a defendant’slife or liberty may depend.” (Bagley, supra, 473 U.S. at p. 676.) The factors of reliability here are not even remotely subtle. They are manifest. Initially, at least, appellant’s entire case depended upon whether or not appellant’s jury could be convinced that there was a reasonable doubt as to the DNAtestresults. The “estimateofthe truthfulness” of the witness in question was heavily reliant upon appellant being able to demonstrate that the prosecutions claim of a positive identification of appellant as the 117 sperm donor wasbased upona testing protocol that in the past produced tainted results. IfFSA’s records show significant contamination errors or other lab mishaps, FSA’s results will be deemedless reliable, and therefore less credible. Dr. Blake’s attempt to minimize any instances of contamination and anomaloustesting results by his laboratory as “misadventures,” was indicative of his attitude that his laboratory could do no wrong, hence, his word alone should be sufficient to satisfy appellant’s need to investigate the veracity of his testimony. Thetrial court’s acceptance of this paradigm assured that the third-prong of the Kelly test would be placed beyond | dispute and the FSA testing results would goto the jury. Thetrial court’s ruling that the questioning of Dr. Blake withoutthe use of the discovery material requested was sufficient runs afoul of basic High court precedent. The High Court and the Ninth Circuit Court of Appeal have repeatedly held that withheld impeachment evidence does not become immaterial merely because there is some other impeachmentofthe witnessat trial. Where the withheld evidence opens up new avenuesfor impeachment, it can well be material. (Banks v. Dretke (2004) 540 U.S. 668, 702.) Banks rejected the argument that since the witness was otherwise impeached, the withheld impeachment evidence was immaterial. (/bid.) In 118 United States v. Kohring (9" Cir 2011) 637 F.3d 895, 905-06, the Ninth Circuit held that even though a witness was impeached on memory problems, evidence ofalleged sexual misconduct and suborning perjury was not cumulative becauseit “would have added an entirely new dimension to the jury’s assessment of [witness]” such that ““there is a reasonable probability that the withheld evidence would havealtered at least one juror’s assessment [ofthe evidence].” Here,the refusalofthetrial court to order the discovery requested by appellant assured that the prosecutor would be able to meet the third prong of Kelly and thatthe results of the FSA testing would be admitted before the jury. Thetrial court’s ruling left appellant without the means to mount an effective defense against the prosecutor’s claim that appellant was essentially the one and only person on earth that could have deposited the sperm in Cannie. A trial court error of federal constitutional law requires the prosecution to bear the burden of proving that the error was harmless beyond a reasonable doubt. (Chapmanv. California 91986) 386 U.S. 18, 24.) The prosecution cannot meet this burden. The entire judgment must be reversed. 119 IV. APPELLANT WAS DENIED HIS CONSTITUTIONAL RIGHTS UNDER THE CONFRONTATION CLAUSE OF THE SIXTH AND FOURTEENTH AMENDMENTSTO THE UNITED STATE’S CONSTITUTION PURSUANT TO THE UNITED STATE’S SUPREME COURT DECISION IN CRAWFORD V. WASHINGTON A. PROCEDURAL AND FACTUAL HISTORY As morefully stated I the Statement of Facts at pp. 11-12, in 1996, the Contra Costa County Sheriff's Laboratory forwarded certain vaginal swabs prepared at Cannie Bullock’s autopsy to Cellmark for DNA analysis. (15 RT 3439; 3441-3447.) Cellmark developed extracts of the sperm and non-spermfractions for these swabs in 1996 and wasable to ascertain a limited genetic profile from these fractions. (15 RT 3450; AOB supra, at pp. 11-12.) These extracts were used by the Contra Costa County Sheriff's Laboratory in 2002 to obtain the far more discriminating STR profile (16 RT 3635-3636 ; AOB, supra, at p. 15) and resulted in a “cold hit” match with the previously - entered profile of appellant. (16 RT 3574-3576; AOB, supra, at p. 16) Cellmark’s testing was performed by Paula Yates, who created a file of her testing procedures andresults. (15 RT 3450.) Ms. Yates was no longer employed by Cellmarkat the time of appellant’s trial and was not called to testify before the jury. Instead, another Cellmark employee, Dr. Charlotte Word, gave testimony about Ms. Yates’s testing based onherfile 120 reports. (14 RT 3419 et seq; 14 RT 3444.) In addition to testifying to the nature of the work done by Ms. Yates Dr. Word rendered certain opinions based upon that work. She opined from the contents of the file that the microscopic analysis done by Ms. Yates indicated that the sperm deposited in Cannie Bullock’s vaginal vault was undiluted and was collected a few hoursafter it was deposited. (14 RT 3445.) Dr. Word further opined that this pattern was not consistent with a female who cameinto contact with the sperm, spent 24 hours walking around and then took a showeror bath before the swabs were taken from the vaginal vault. (14 RT 3446.)° | B. LEGAL ARGUMENT The Confrontation Clause ofthe Sixth Amendment guarantees toall defendants “the right to be confronted by all witnesses against them.” In Crawford v. Washington, supra, 541 U.S. at p. 59, the High Court held that Confrontation Clause permits admission of “[t]estimonial statements of witnesses absent from trial...only when the declarant was unavailable and only where the defendant has had a prior opportunity to cross-examine.” In so holding, the Court expressly abrogated its own decision in Ohio v. Roberts (1980) 448 U.S. 56. Roberts stated an out-of-court statement by .8. A discussion of significance of this opinion appears below at p 126. 121 an unavailable witness can be admissible under the Confrontation Clause of the Sixth Amendmentas long as that statement fell within a “firmly rooted hearsay exception or bore a “particularized guarantee of trustworthiness.” (Id. at p. 66.) In abrogating the above holding ofRoberts, the High Court stated that the principle function of the Confrontation Clause was to guard against the use of exparte examinations against a criminal defendant. (Crawford, supra, 541 US. at p. 52.) As such, the Crawford Court ruled that the intent of the Framers of the Constitution would not be metif out-of-court statements, regardless of their innate reliability, were admitted before the jury unless the declarant of the out-of-court statement was both unavailable and defendant had a prior opportunity to cross examine said declarant. (/d. at p. 58.) In rejecting the concept that a hearsay statement, if sufficiently reliable, can satisfy that hearsay exception, the Court in Crawford stated “{djispensing with because testimony that is obviously reliable is akin to dispensing with jury trial because a defendant is obviously guilty. Thisis not what the Sixth Amendmentprescribes.” Ud. at p. 62.) The Court further stated that the now discredited Roberts test would allow the jury to hear evidencethat remained “untested by the adversary process” simply because it was judicially determined that said evidence was 122 “reliable.” (Crawford, supra, at p. 62.) To follow such a test would replace constitutional requirements with a more relaxed evidentiary standard promulgated by state law. (/bid.) Five years after Crawford, in Melendez-Diaz v. Massachusetts (2009) 557 U.S. 305, 317-318, the United States Supreme Court specifically refused to carve out what might be termed a “forensic evidence” exception from Crawford. The Melendez-Diaz Court held that a forensic laboratory report created specifically as evidence at a criminaltrial is “testimonial” for Sixth Amendmentpurposesso that the prosecutor could not admit the report without offering a witness to testify to the truth of the report’s contents. (Ibid.) More recently, the High Court in Bullcoming v. New Mexico, supra, 131 S.Ct. 2705 decided the question central to the instant case, that being Whether the Confrontation Clause permits the prosecution to introduce a forensic laboratory report containing a testimonial certification - made for the purpose ofproving a particular fact- through the in-court testimony of a scientist who did not sign the certification or perform or observethe test reported in the certification. In Bullcoming, the defendant was charged with an aggravated Driving While Intoxicated charge. The blood alcohol testing was done by Curtis Caylor, who signed the report as the “certificate of analyst.” 123 (Bullcoming, supra, 131 S.Ct at p. 2710.) However, Mr. Caylor did not testify. Instead, the prosecutor used the testimony of Garasimos Razatos,a scientist at the same lab wherethe actual testing was performed,to “qualify” Mr. Caylor’s report as a “business record,” a designation which the trial court employed to admit the report as evidenceofthe conclusions therein stated.’ (/d. at pp. 2712-2713.) The Bullcoming Court held that the evidentiary process employed by the prosecution and approvedbythetrial judge was unconstitutional in that it violated the Confrontation Clause of the Sixth Amendment. The High Court reiterated its holding from Crawford that the Confrontation Clause permitted admission of testimonial statements of witnesses absent from trial only where the declarant was unavailable and defendant had a prior opportunity to cross-examine him orher. (Bullcoming, supra, 132 S.Ct. at p. 2713.) To qualify as a “testimonial”statement, the statement must have the “primary purpose” of “establishing or proving past events potentialto later criminal prosecution.” (Davis v. Washington (2006) 547 U.S. 813, 822; Bullcoming, supra, 131 S.Ct. at p. 2716, fn 6.) It is clear from an examination ofthe facts of the instant case and the above law thatthe testimony ofDr. Word violated appellant’s Sixth 9,Thereport indicated that defendant had a bloodalcohollevel of .21 grams per hundred millimeters, indicating that he was very intoxicated. (/d. at p. 2710.) 124 Amendmentright to confrontation of the witnesses arrayed against him. While the prosecutor did not attempt to introduce Ms. Yates’ report, it was clear that Dr. Word usedit as the basis for her testimony. This was in direct contravention ofthe holding in Bullcoming. Dr. Word was not present during the testing that Ms. Yates performed for Cellmarkand took norole in performing the tests, Having Dr. Wordtestify did not constitutionally satisfy Bullcoming, as the report wasclearly testimonial and Ms. Yates was never subjected to cross-examination. The prejudice ofthis constitutional error is clear. The work done by Cellmark was not only used to establish a PCRprofile in 1996, it also provided the DNA sperm and non-sperm abstracts that were used to ultimately create the STR profiles by the Contra Costa County Criminal Laboratory in 2002. (AOBat p. 13.) These STR profiles were able to discriminate to a factor of more than a quadrillion, creating, in the jury’s mind, the inevitable association between the sperm portion of the sample taken from Cannie and appellant. Therefore, the ability of appellant to confront the person who actually performed the work for Cellmark was critical to the defense. In addition, due to this constitutional error, Dr. Word was permitted to improperly opine that the evidence analyzed by Ms. Yates indicated that 125 the defense theory of unintentional transfer was inconsistent with that evidence, but consistent with the theory that the person who donated the sperm murdered Cannie soon thereafter. (14 RT 3445-3446.) Thetrial court’s error in not barring the admission of the testimony of Dr. Word violated appellant’s rights under the Confrontation Clause of the Sixth Amendmentofthe United States Constitution. This error is one of constitutional dimension, and as such the prosecution must prove that the error was harmless beyond a reasonable doubt. (Chapmanv. California, supra, 386 U.S. at p. 24.) The state cannot meet this burden and the death judgment must be reversed. V. THE PROSECUTOR VIOLATED APPELLANT?’S RIGHT TO DUE PROCESS OF LAW BY IMPROPERLY MISLEADING HE JURY IN HER ARGUMENT A. FACTUAL AND PROCEDURAL HISTORY William Flores was a viable third party suspect in this case. (AOB, supra, at pp. 7-10.) Until the “cold hit” “match” to defendant in 2002, Mr. Flores had been the only viable suspect in the killing of Cannie Bullock. Police suspicions were drawn to Mr. Flores because of motive, opportunity, past history and various incriminating statements he made to law enforcement. Whatalso drew police attention to Mr. Flores was the discovery of a 126 sewing machine repair manual found duringtheinitial police canvass of the house in which Cannielived at the time she was murdered. Theresidents of the house had never seen this manual before. (AOB, supra, p. 5.) Mr. Flores’ sister told Detective Harrison that her mother had two sewing machines, a Sears and a Singer, and she wasfairly certain that she recognized the sewing machine booklet found at the murder scene as that belonging to her mother. (AOB, supra at p. 29.) Duringthetrial testimony of Detective Harrison, appellant attempted to introduce into evidence Exhibit “O.” This exhibit was a letter from Detective Harrison’s case file that bore Mr. Flores’s name and was addressed to a correspondence school for sewing machinerepair. This letter corresponded to the note Mr. Flores once wrote indicating that one of his goals was to become a sewing machine repairman.(18 RT 4 102.) The prosecution objected to the admission ofthis letter becauseit lacked foundation. Thetrial court sustained this objection. (18 RT 4101- 4102.) During the prosecutor’s guilt phase rebuttal argument, the prosecutor argued that there was nothing in the case that connected Flores with the sewing machine manual found in Cannie’s house. (18 RT 4285-4286.) This was patently untrue, as Exhibit “O,” which the prosecutor successfully 127 suppressed, directly connected Mr. Flores with the sewing machine manual. B. LEGAL ARGUMENT Asstated by the Ninth Circuit Court ofAppeal in Gonzalez v. Wong, supra, 667 F.3d at p. 981, our system, Places a duty [on prosecutors] to refrain from improper methods calculated to produce a wrongful conviction.” [Citations omitted.] Principal among a prosecutor’s duties is to provide a defendant with all material exculpatory and impeachment evidence prior to trial. This obligation recognizesthe significant advantage the state has over an individual defendant in regards to gathering information and seeks to level the playing field. We expect our governmentto fight fair and not deny a defendant evidence that could exculpate him or ameliorate the penalty he faces. Only by giving a defendant this evidence can the government ensure that “justice is doneits citizens in the courts.” [citation omitted.] A prosecutor has a special duty commensurate with his unique power to assure that defendants receive fairtrials. (United States v. LePage (9" Cir. 2000) 231 F3d 488, 492.) It has been long held by the United States Supreme Court that, “it is as much [the prosecutor’s] duty to refrain from ‘improper methodscalculated to produce a wrongful convictionas it is to use every legitimate method to bring about one.” (Berger v. United States (1935) 295 U.S. 78, 88.) The prosecutor is the representative not of any part to a 128 controversy, but of a sovereigntywhose obligation to govern impartially is as compelling as its obligation to govern at all; and whoseinterest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. (People v. Fierro (1991) 1 Cal.4th 173, 207-208.) Improper commentsby prosecutors that tended to mislead the jury as to the critical issue in the case can “so infect the trial with unfairness as to makethe resulting conviction a denial of due process.” (Connelly v. DeChristoforo (1974) 416 U.S. 637, 643; see also Caldwellv. Mississippi (1985) 472 U.S. 320, 336.) The prosecutor at Mr. Cordova’s trial did not live up to her responsibility under the law, in arguingthat no evidence connected Mr. Flores with the sewing machine manual, even thoughsheherselfhad arranged the exclusion ofthe evidence that would have madethat connection. This Court is one of the few whohasheld thatthistype of prosecutorial conduct is permissible in state court. (Peoplev. Lawley (2002) 27 Cal.4th 102, 156.) Courts in other jurisdiction have held that a prosecutor commits misconduct whenheor she argues facts knowing them to be untrue. (See United States v. Bluefield (9" Cir. 2002) 312 F.3d 962; United States v. Reyes (9Cir. 2009) 577 F.3d 1069; Davis v. Zant (11" Cir. 1994) 36 F.3d 1538, 1547-1548.) 129 Asstated by the High Court in United States v. Young (1985) 470 U.S. 1, 18-19, the reason for holding a federal prosecutor to such a high standard is a “prosecutor’s opinion carries with it an imprimatur ofthe Government and may inducethe jury to trust the Government’s judgment rather than its own view of the evidence.” There is good reason for state prosecutors to be held to this high standard. Appellant respectfully requests | that this Court reconsider its decision in that case. VI. FORENSIC SCIENCE ASSOCIATES USE OF THE IDENTIFILER STR TEST KIT WAS A NEW SCIENTIFIC - PROCEDURE AND THE TRIAL COURT ERRED IN REFUSING TO GRANT A FIRST-PRONG KELLY/FRYE HEARING TO DETERMINE WHETHER THE USE OF SAID KIT WAS GENERALLY ACCEPTEDIN THE SCIENTIFIC COMMUNITY THEREBY VIOLATING APPELLANT’S RIGHT TO DUE PROCESS OF LAW,A FAIR TRIAL, AND FAIR DETERMINATION OF GUILT AND PENALTY UNDER THE FIFTH, SIXTH, EIGHTH, AND FOURTEENTH AMENDMENTSTO THE UNITED STATES CONSTITUTION A. INTRODUCTION Forensic Science Associates, a private forensic laboratory, performed several DNAtests on swabs taken from swabs obtained from Cannie Bullock during her autopsy. The testing was done by FSA employee Alan Keel. Mr. Keel used a new STR multiplex test kit, the Identifiler, that simultaneously tested alleles at 15 sites, as compared to the 13 sites used by 130 the Cofiler and Profiler Plus kits. The latter kits pre-dated the Identifiler kit and had been used by the Contra Costa County Criminal Laboratory previously in obtaining their test results. (16 RT 3779.) Before trial, defense counsel challenged the acceptance of the Identifiler technology and the admissibility ofthe results from thattest under People v. Kelly, supra, 17 Cal.3d 24. Thetrial court took evidence at the hearing and denied the motion. At appellant’s trial, Mr. Keel testified that the DNAprofile of appellant obtained using the Identifiler test matched the profile of the sperm fraction from the autopsy samples. Mr. Keel calculated that the statistical frequency for appellant’s profile to be 1 in 13 billiontrillion for Hispanics, 1 in a trillion trillions for African Americans, and 1 in 134 trillion for Caucasians. (16 RT 3783-3784.) B. PROCEDURAL SUMMARY On January 25, 2006, appellant filed a Memorandum of Points and Authorities in Support of Request for Kelly Hearing. (3 CT 639 et seq.) In part, that Memorandum arguedthat the Identifiler kit used by FSA in this case has never been subjectedto the “first-prong analysis” ofPeople v. Kelly (1976) 17 Cal.3d 24. (3 CT 662.) Appellant maintained that the results from the Identifiler kit cannot be used as evidence unlessthekit is 131 foundto be generally accepted as reliable among the relevantscientific community. Ud. at p. 32.) Appellant’s counsel maintained that the Identifiler kit is materially distinct from any other PCR/STRkits that have gained acceptance from the scientific community and the courts. (3 CT 672.) On May3, 2006, a hearing was held to determine whetherthetrial court would hold an additional “first-prong” Kelly hearing as to whether the Identifiler kit was acceptedas reliable by the DNA community. (3 RT 570 et seq.) Marc Taylor, a respected DNA laboratory owner and forensic scientist testified for the defense. (3 RT 573 et seq.) Mr. Taylor testified that his laboratory did not use the Identifiler kit. (3 T 592.) He stated that there were modifications that has to be done onthis kit because ofartifact problems.([bid. ) Mr.Tayloralso stated that there were several other differences between the Identifiler kit and the older kits that have been approved bythe courts. (3 RT 594-597.) He also stated that there are questions in the scientific community as to whether more modification had to be performed on the Identifiler kit to makeit reliable. (3 RT 600.) Mr. Taylor further testified that there was insufficient information to allow the scientific - community to determine whether the Identifiler’s new components were 132 reliable. (3 RT 605.) David Stockwell, who workedfor the Contra Costa County Criminal Laboratory, testified for the prosecution. (3 RT 647 et seq.) Mr. Stockwell testified that the Identifiler methodology was generally accepted in the scientific community. (3 CT 651.) Mr. Stockwell also testified that this test kit has been used by the California Department of Justice and many other county laboratories in California, as well as out-of-state laboratories. (3 RT 653.) However, upon cross-examination, the witness stated that there was very little independentvalidation ofthe Identifiler kit as comparedto the better established kits such as Profiler and Cofiler. (3 RT 674-678.) After hearing the testimony and argument,thetrial court ruled that it did not believe that the methodology usedin the Identifiler kit was new and that the Identifiler kit’s methodology had gained acceptancebythe relevant scientific community, hence, allowingtrial testimony asto its use and results in the instant case. (3 RT 686.) 133 C. LEGAL ARGUMENT The admissibility of expert evidence pertaining to a new scientific technique is determined by applying the following analysis set forth by our Supreme Court . “'(1) [T]hereliability of the method must be established, usually by expert testimony, and (2) the witness furnishing such testimony must be properly qualified as an expert to give an opinion onthe subject. [Citation.] Additionally, the proponent ofthe evidence must demonstrate that correct scientific procedures were usedin theparticular case. [Citations.]' ” ( People v. Leahy (1994) 8 Cal.4th 587, 594, quoting People v. Kelly, supra, 17 Cal.3d at p. 30.) This test was adopted from Frye v. United States (D.C. Cir. 1923) -293 F. 1013, which was overruled in Daubert v. Merrell Dow Pharmaceuticals, Inc. (1993) 509 U.S. 579, Nevertheless, People v. Kelly and its progeny continue to represent the law ofthis state. With respect to the first prong ofthis test, “reliability” means that the technique “ mustbe sufficiently established to have gained general acceptance in the particularfield in whichit belongs.’” (People v. Kelly, supra, 17 Cal.3dat p. 30.) In determining whetherthere has been “general acceptance,” “[t]he goal is not to decide the actual reliability of the new technique, but simply to determine whetherthe 134 technique is generally acceptedin the relevant scientific community.”( People v. Barney (1992) 8 Cal-App.4th 798, 810.) Courts “must consider the quality, as well as quantity, of the evidence supporting oropposing a new scientific technique. Mere numerical majority support or opposition by persons minimally qualified to state an authoritative opinionis oflittle value....” (People v. Leahy, supra, 8 Cal.4th at p. 612.) In the instant case, there was insufficient evidence to allow thetrial court to reach the conclusion that the use ofthe Identifiler kit had gained acceptance in the relevant scientific community.’° As stated arguedbytrial counsel, the Identifiler kit is quiet different in several aspects that the other previously accepted kits. Both the number andloci ofthe genomiccites are different. (3 CT 672.) Further, there are different procedural steps employed _ in the Identifiler kit.bid.) The Identifiler kit is not simply a different version of the same methods employedin the two other kits. The newerkits employs different individual techniques using different markers and primers. (3 CT 671.) Assuch,thetrial court erred in foregoing a first-prong Kelly hearing as this error resulted in the reversible prejudice to appellant and deprived 10. The court of appeal in People v. Jackson (2008) 163 Cal.App.4th 313 held that the Identifiler DNAtest kit did not require a first-prong Kelly hearing to determineits scientific acceptance. However, this Court has never ruled uponthis issue. | 135 him of due processoflaw,a fair trial, and a fair determination of guilt and penalty underthe Fifth, Sixth, Eighth, and Fourteenth Amendmentsto the United States Constitution. VIL. THE TRIAL COURT VIOLATED APPELLANTS RIGHT TO DUE PROCESS OF LAW,A FAIR TRIAL AND RIGHT TO A FAIR DETERMINATION OF GUILT AND PENALTY BY ALLOWING THE PROSECUTORTO PRESENT EVIDENCE THAT APPELLANT WAS DEFINITELY THE SOURCE OF THE SPERM FOUND INSIDE CANNIE BULLOCK’S BODY A. FACTUAL AND PROCEDURAL SUMMARY During the guilt phase ofthe trial, appellant’s counsel made an oral motion that the trial court enter an order to bar the prosecution’sDNA experts from testifying that the sperm recovered from Cannie’s Bullock’s body originated from appellant. (15 RT 3403.) Counsel argued that while the experts could properly testify as to the rarity of appellant’s genetic profile amongthe general population”’, they should not be allowed to definitively state that the sperm recovered from Cannie wasappellant’s. (Ibid.) The prosecutor argued that such testimony would be appropriate as the rarity statistics demonstrated that appellant’s genetic profile was unique and different from all other people on earth. (15 RT 3404-3409.) 11. As stated in Argument VI, supra,therarity ratio of appellant’s genetic profile exceeded the numberofpersons on earth. 136 Appellant’s counsel countered by stating that the determination of uniqueness is not within the current realm of scientific expertise. (15 RT 3409.) The trial court stated that it would take the matter under consideration. (15 RT 3410-3413.) Thetrial court entertained further discussion ofthe matter. The prosecutor stated that the current state ofDNA science allows for an expert to state that a DNAprofile is like fingerprints in that no two people are alike. (16 RT 3555-3556.) Appellant’s counsel stated such testimony would be nothing more than an non-expert interpretation of the mathematics of rarity ratios, a matter that shouldbeleft to the jury. (16 RT 3564-3565.) Ultimately, the trial court ruled in favor of the prosecution and allowed testimony that appellant was the donorofthe sperm found in Cannie Bullock’s body. (16 RT 3571.) Ultimately, David Stockwell, ofthe Contra Costa County Criminal Laboratory,testified that because ofthe rarity statistics, he was able to form an opinion “to a reasonable degreeof scientific certainty,” that the source of the sperm foundin the victim was appellant. (16 RT 3644.) B. LEGAL ARGUMENT In Brown v. Farwell (9™ Cir. 2008) 525 F.3d 787(rev’d on another ground sub nomine McDaniel v. Brown (2010) 558 U.S. 120), the Ninth 137 Circuit Court ofAppeals addressed this issue, which has become commonly referred to as “source attribution.” In Brown, defendant was charged with the sexual assault of a nine — yearold girl. (Brownat p. 790.) The assailant’s sperm was foundin the underwearofthe young victim. The prosecution’s DNA expert initially testified that based uponhertesting andstatistical analysis thereof, “only 1 in 3,000,000 people randomly selected from the population would also match the DNA found in (the victim’s) underwear (random match probability.)” Wd. at pp. 795-796.) | After the prosecutor asked herto put this statistic in a percentage form, the expert testified that there was a 99.99967 percent chancethat the DNAin the victim’s underwear was defendant’s. (Jbid) The Brown court referred to this percentage as “source probability.) (/bid.) The Brown Court reversed defendant’s conviction, in part because. the “source probability “ testimony was unreliable because it essentially stated that science has established that there was a 100% chancethat defendant was guilty. (Brown at p. 795.) The court stated that this was an incorrect assertion and falls “directly into what has become know asthe ‘prosecutor’s fallacy’.” (/bid) The court went onto explain thatthe fallacy “occurs when the prosecution elicits testimony that confuses source 138 probability with random match probability.”(Ibid.) In doing so the court stated that the “prosecution errs when hepresents statistical evidence to suggest that the [DNA] evidence indicates thelikelihood ofthe defendant’s guilt rather that the oddsofthe evidence having been found in a randomly selected sample.” (Ibid; see United States v. Shonubi (E.D.N.Y. 1995) 895 F.Supp. 460, 516, vacated on other grounds 103 F.3d 1085.) The Brown court also quoted from United States v. Chischilly (9* Cir. 1994) 30 F.3d 1147, 1154 which stated “[to] illustrate (the prosecutor’s fallacy), suppose...evidence establishes that there is a one in 10,000 chance of a random match. The jury might equate this likelihood with source probability by believing there is a one in 10,000 chancethat the evidentiary sample did not come from the defendant.” The Brown Court concludedthat this fallacy is dangerous, as the probability of finding a random match “can be muchhigherthat the probability ofmatching one individual, given the weight of the non-DNA evidence. (Brown, supra, 525 F.3d at 795.) The Brown decision was eventually reversed by the United States Supreme Court in McDaniel v. Brown (2010) 558 U.S. 120. However,the High Court neverstated that “source attribution” evidence should be ~ admissiblein state courts, and indeed agreedthat it was erroneous to equate 139 the random match probability with the probability that defendant is the source of the DNA. (McDaniel, supra, 558 U.S. at pp. 128-130.) The Court reversed on the basis that consideringall ofthe evidence presented to the jury, the “source probability” evidence did not cause the overall DNA evidence to be unreliable. (/d. at p. 672-673.) The High Court acknowledged, and even the government conceded thatits trial expert overstated the probative value of the evidence by “failing to dispel the prosecutor’s fallacy.” ([bid.) In the instant case, a prosecution expert was improperly allowed to perpetrate this prosecutor’s fallacy to the jury. According to Brown, this fallacy confusesthe rarity of the profile, with the “odds” of defendant being guilty, making the evidence presented against appellant unreliable. Appellant’s jury was in effect told that the scientific community wasable to say that appellant wasguilty. The introduction of this unreliable evidence created reversible prejudice. The only evidence of appellant’s guilt were the DNAtestresults. The conflation of these results in such a mannerso that they conclusive brand appellant as the guilty party demandsthat appellant’s conviction be reversedasit violated appellant’s right to due process of law,a fair trial, and a fair determination of guilt and penalty under the Fifth, Sixth, Eighth, 140 and Fourteenth Amendments to the United States Constitution. PENALTY ISSUES VIII. DUE TO THE TRIAL COURT’S IMPROPER INSTRUCTION TO THE JURY PANEL, APPELLANT WAS DEPRIVED OFHIS RIGHT TO A FAIR DETERMINATION OF THE PENALTY UNDER THE EIGHTH AND FOURTEENTH AMENDMENTSTO THE UNITED STATES CONSTITUTION A. INTRODUCTION A trial court is not bound to give anysort of instructions at the outset ofvoir dire. However, when it choosesto do so, it also assumesthat responsibility of giving properinstructions. Before a single juror was selected, the trial court improperly instructed all of the prospective jurors, including those that would eventually sit. As these instructions were the only law that the jury would be given until the very end of the deliberative process, the jury necessarily relied on these constitutionally defective instructions in its evaluation of the evidence presentedtoit. The instructions complained ofherein touched the very essence of the California death penalty sentencing scheme. They defied this Court’s admonitions aboutinstructions that went to the mandatory imposition of the death penalty. These instructions stood in contravention to this Court 14] decision ofBoyde v. California (1990) 494 U.S. 370. The reading ofthese instructions misled the jury into believing that, in some cases, the death penalty was mandated by law. Therefore, the death judgment must be vacated. B. FACTUAL AND PROCEDURAL SUMMARY The selection of the jury proceeded in the following fashion. Over the objection of counsel who had requested a fully sequestered “Hovey” voir dire (8 RT 1667-1670), the trial court conducted the voir dire of the jury in groupsofthirty prospective jurors. (10 RT 2175.) Thefirst group | was questioned on December 18, 2006 (10 RT 2177et seq), the second group on December 19, 2006 (11 RT 2417 et seq), andthe third group of thirty on December 20, 2006. (12 RT 2662 et seq). Aspart of the voir dire process, before actually questioning the prospective jurors thetrial court instructed them on various points ofthe law pertaining to their duties. As part of these instructions, the trial judge said to the first panel ofthirty, “{i]f the jury found the circumstancesin aggravation so substantially outweighs those in mitigation that it warrants the imposition of the death penalty, you should vote for the death penalty. If 142 it finds they donot, they will vote for life without the possibility of parole.” (10 RT 2201-2202.) A similar instruction was given to the December 19, 2006 panel whenthetrial judge stated, “[i]f the jury found that the circumstances in ' aggravation so substantially outweighsthose in mitigation that it warrants the imposition of the death penalty, then you should for the death penalty.” (11 RT 2439.) Thethird panelalso received a similar instruction, “[i]f you find, and only if you find, that the aggravating factors so substantially outweigh the mitigating factors that in your mind it warrants the imposition of death, then you vote for death. Any only ifyoufind that the mitigating factors outweigh the aggravating factors that the life without possibility of paroleis warranted, then you should vote for that.” (12 RT 2684.) C. LEGAL DISCUSSION Atrial court errs when it instructs the jury that “it shall impose a sentence of death,” unless such an instruction is accompanied by additional instructions that make fully clear the weighing process that must take place within the mindofeach individual juror. (People v. Brown, supra, 40 Cal.3d at p. 541; People v. Burgener (1986) 41 Cal.3d 505, 542-543.) Not only must the jurors be informed that the decision must be an individual 143 one, but also that they are free to assign whatever moral or sympathetic value they deem appropriate to each andall ofthe factors they are permitted to consider, especially factor (k). (People v. Brown, supra, 40 Cal.3dat p. 541.) Asstated in People v. Murtishaw, supra, 48 Cal.3d at p. 1027, the 1978 death penalty law, under which appellant wastried “should not be understood to require any jury to vote for the death penalty unless, upon completion of the weighing process, he decides that death is the appropriate penalty underall the circumstances.” This Court proceededto explain Each juror must assign whatever moral or sympathetic value he deems appropriate to the relevant sentencing factors, singly and in combination. He must believe aggravation is so relatively great, and mitigation comparatively minor, that the defendant serves death rather than society’s next most serious punishment, life in prison without parole. The deletion of such instructions from the trial court’s voir dire instruction improperly affected the jury’s penalty determination that appellant should be executed rather than be given a sentenceoflife without parole. (People v. Cooper (1991) 53 Cal.3d 771, 845.) In Brown, this Court explained that Penal Code section 190.3 was constitutional, but had the potential of confusing the jurors by suggesting that the death penalty was 144 mandatory undercertain circumstances. Brown further stated that the only thing that could preservethe constitutionality of the statute wasa full set of instructions that informed them that they could individually weighall mitigating, as well as aggravating factors, before arriving at their personal assessmentofmoral culpability. (Brown, supra, 40 Cal.3d at pp. 542-545.) The Constitutional necessity of giving such supplemental instructions along with the “shall” instruction, was endorsed by the United States Supreme Court in Blystone v. Pennsylvania (1990) 494 U.S. 29 and Boyde v. California (1990) 495 U.S. 924. The Court madeit clear that while the jury may be instructed that undercertain circumstances they “shall” impose the death penalty, they must also be instructed that imposition of such a penalty is permissible only if they are also instructed that they must considerall mitigating evidence in making their decision. (Blystoneat p. 307; Boyde at p. 377.) The rationale ofthe High Court rested to a great extent on the axiomatic principle established in Boyd v. United States (1926) 271 U.S. 104, 107 which stated “[i]Jn determining the effect of (an) instruction on the validity ofrespondent’s conviction, we acceptat the outset the well- established proposition that a single instruction to a jury may not be judged in artificial isolation, but must be viewed in the context of the overall 145 charge.” (Boyde v. California, supra, 495 U.S.at p. 378.) In the instant case, there was but one instruction given to the prospective jurors, and it was the “shall” instruction. There were no accompanying instructions given. There was no formal explanation ofthe weighing process, nor the actual nature or definition of the aggravatingand mitigating factors. (See People v. Adcox (1988) 47 Cal.3d 207, 269.) The jurors proceeded through the subsequentvoir dire, the entiretrial, guilt and the evidentiary portion of the penalty phase, with the mistaken assumption that the death penalty was indeed mandatory if aggravating factors “outweighed” mitigating circumstances and did so with no knowledge of what these factors were or how they should be factored in their decision. The jurors also went uninformed as to the individual nature of the determination ofthe above. Assuch, appellant was deprivedofa fair determination ofhis penalty under the Eighth and Fourteenth Amendments ofthe United States Constitution and the death judgment must be reversed. | IX. APPELLANT’S RIGHT TO DUE PROCESS OF LAW, A FAIR TRIAL, AND REASONABLE DETERMINATION OF PENALTY PURSUANT TO THEFIFTH, SIXTH, EIGHTH AND FOURTEENTH AMENDMENTSTO THE UNITED STATES CONSTITUTION WERE VIOLATED BY THE COURT’S ERROR IN ADMITTING EVIDENCE OF NONSTATUTORY AGGRAVATION IN THE FORM OF APPELLANT’S PRIOR ACTS OF SEXUAL TOUCHING 146 A. FACTUAL SUMMARY The facts pertinent to this issue are the sameas the facts pertinent to ArgumentIT, supra. In 1992 and 1997, appellant was convicted oftwo non- violent sexual assaults on minors. ArgumentII argued that the trial court committed reversible error by allowing the prosecutor to present evidence of the convictions and the facts surrounding them under Evidence Code section 1108 and 1101 (b) in the guilt phase. This argumentherein pertains to the trial court’s error in allowing the prosecutor to use these incidents as aggravating factors in the penalty phase under Penal Code section 190.3(a), “circumstances of the offense.” (19 RT 4370.) B. DISCUSSION OF LAW OF STATUTORY FACTORSIN AGGRAVATION Penal Code section 190.3 sets forth the procedure that a jury must use in reaching the penalty determinationin a capital trial. This language, derived from the 1978 initiative made certain fundamental changes from the 1977 death penalty law, which it superseded. The mostcritical change was described by this Court in People v. Boyd, supra, 38 Cal.3d 762, 773 [c]rucial change in the method by whichthe jury determines whether to impose the death penalty - achange which compels us to depart from our language in Murtishaw. Under the 1977 version of section 190.3 the jury must “consider, take into account and be guided by the aggravating 147 and mitigating circumstances” enumerated in that section. The statute, however, provided no further guidance or limitation to the jury’s sentencing discretion. In the absence of such a limitation, the jury wasfree, after considering the listed aggravating and mitigating factors, to consider any other matterit thought relevant to the penalty determination. The 1978 initiative, by contrast, provided specifically that the jury “shall impose a sentence of deathif[it] concludes that the aggravating circumstances outweigh the mitigating circumstances.If[it] determinesthat the mitigating circumstances outweigh the aggravating circumstances[it] shall impose a sentence of confinement in state prison for a term oflife without the possibility or parole.” (Section 190.3, see discussion in People v. Easley, supra, 34 Cal.3d 858, 881- 882.) By thus requiring the jury to decide the appropriateness of the death penalty by a process of weighing the specific factors listed in the statute, the initiative necessarily implied that matters not within the statutory list are not entitled to any weight in the penalty determination. * The Court proceeded tostate; The change from a statute in whichthelisted aggravating and mitigating factors merely guide the jury’s discretion to one in which they limit its discretion requires us to reconsider the question ofwhat evidenceis “relevant to aggravation, mitigation, and sentencing.” (Section 190.3.) Relevant evidence “means evidence...having any tendency in reason to proveor disprove any disputed fact thatis of consequenceto the determination ofthe action.” Evid. Code section 210; see People v. Ortiz (1979) 95 Cal.App.3d 926, 933.) Since the jury 148 must decide the question ofpenalty on the basis of the specific factors listed in the statute, the quoted language mustrefer to evidence relevant to those factors. Evidence of defendant’s background, character, or conduct whichis not probative of any specific listed factor would have no tendencyto prove or disprove a fact of consequence to the determination of the action, and is therefore irrelevant to aggravation. (Boyd, supra, at p. 773.) Therefore, evidence that does not apply to one ofthelisted aggravating factors is inadmissible before the penalty jury. (People v. Boyd, supra, 38 Cal.3d at p. 775, citing to People v. Easley (1983) 34 Cal.3d 858, 878.) This Court stated in Boyd that while a defendant is permitted under 190.3 (k) to introduce any evidence as to defendant’s character or record or the circumstancesofthe crime as a basis for a sentence less than death, the prosecutor does not have a concomitant right to present evidence that defendant was of bad character unless it is specifically within the statutory scheme of 190.3. (Id. at p. 775; see Lockett v. Ohio (1978) 438 U.S. 586, 604; Eddings v. Oklahoma (1982) 455 U.S. 104, 110.) The Court pointed out that there was no requirement under the federal constitution that the prosecutor be allowedto present to the jury any evidence that may serve as a basic for the death penalty. (Boyd at p. 775 citing to Zant v. Stephens (1983) 462 U.S. 862, 978-979,fin. 17.) 149 C. APPLICATION OF LAW TO THE FACTS OF THE INSTANT CASE This statutory provision permits the prosecution at the penalty phase of a capital case to introduce evidence of “{c]riminal activity by the defendant which involvedthe use or attempted use of force or violence or the express or implied threat to use force or violence.” (Section 190.3 (b).) This Court madeit clear that the 1978 death penalty statute, unlikeits predecessor, barred the admission of evidence of defendant’s character unless it was in the form of a prior felony conviction or evidence ofviolent criminalactivity. (Boyd, supra, at p. 772-773.) In the instant case, it is clear that neither the 1992 nor 1997 incidents involved violence or the threat thereof. The trial court admitted thisin its ruling. (19 RT 4370.) However, thetrial court ruled that these incidents were “circumstances of the offense” (factor (a)) vis a vis the murder of Cannie Bullock. bid.) Regarding the meaning of“circumstances of the crime”as used in section 190.3 factor (a), this Court has held that this factor “does not mean merely the immediate temporal and spatial circumstancesofthe crime. Rather it extends to’[t]hat which surrounds materially, morally, or logically the crime.” (People v. Blair (2005) 36 Cal.4th 686, 749; People v. Blair 150 (2005) 36 Cal.4th 686, 833.) However, there are no cases reported that would even suggest that the “circumstances of the offense” may be extended to non-violent, completely unrelated offenses that took place eighteen andthirteen years, respectively, after the murder. The reason for the absence of suchprecedent is obvious. If such remote, nonviolent actions were considered to be circumstancesofa capital offense then virtually all socially undesirable acts of a defendant could be said to fall into this aggravating factor, as long as there was some connection, no matter how slight, between the factor (a) offenses and the murder for which defendant stands convicted. For example, under such an overly broad definition of circumstances of the offense, a defendant’s fifteen year remote act ofpublic exposure could be utilized as an aggravating circumstanceto a rape-murder, as both involved somesort of aberrant sexual behavior. Another example of such an completely illogical and unconstitutional extension of factor (a) would be to allow a remoteact of shoplifting as a circumstance ofthe offense of a robbery-murder conviction as both events demonstrate defendant’s inclination to enrich himself at the expense of others. The reason why such evidenceis inadmissible is that it is not admissible evidenceofthe circumstances ofthe offense, but rather, inadmissible evidence of a 151 defendant’s general bad character. The only time that bad character evidencein the penalty phase is permitted before the jury is to rebut defense proffered evidence of defendant’s good character. For example, in People v. Clark (1993) 5 Cal.4th 950, 1032, where the defendant wore a cross every day ofhistrial, and his mothertestified at the penalty phase that he wore a cross on and off throughouthis childhood, this Court held that the prosecution was entitled to rebut the inference that defendant wasa religious person with testimony that he was not wearing a cross when he wasarrested. In People v. Raley (1992) 2 Cal.4th 870, 912, this Court held that the admission of pornographic photos ofwomen in bondage found in appellant’s bedroom wasnot improper aggravation where the evidence was relevant to rebut appellant’s claim that he had a respectful, kind and chivalrousattitude toward women. The Ninth Circuit dealt with this issue in Beam v. Paskett (9" Cir. 1993) 3 F.3d 1301, overruled on other ground by Lambright v. Stewart (9" Cir. 1999) 191 F.3d 1181.) Beam madeclear that no further detriment should incur to a capital defendant due to his personallifestyle and that aggravating factors that allowed such evidence in the penalty phase were unconstitutional under the Eighth and Fourteenth Amendments to the 152 United States Constitution. The court stated “[s]imply put, a state may not use the death penalty as a mechanism for enforcing societal norms regarding sexual activity.” (/d. at pp. 1308-1309.) In allowing the admission ofthe two non-violent touching crimes in the penalty phase,that is exactly whatthe trial court’s error permitted in the instant case whenit allowed the admission of the two touching crimesas part ofthe prosecutor’s case-in- chief. Wherea state has provided for the imposition of a criminal punishmentin the discretion of a jury, defendant’s interest in the exercise of that discretion is not simply a matter of state procedural law. The defendant has a legitimateright under the United States Constitution to have the jury exercise its discretion according to the limitations of the state statute granting said discretion. (Hicks v. Oklahoma (1980) 447 U.S. 343, 345- 346.) Therefore, when state court deprives a defendantofthe sentencing procedure guarantee understate law, his life andliberty interest is onethat the Fourteenth Amendmentwill protect pursuant to a defendant’s federal right to due processof law. (/bid.; see Vitek v. Jones (1980) 445 U.S. 480, 488-489.) In the instant case, the improperruling ofthe trial court deprived 153 appellant of his right to be sentenced according to the California statutory scheme embodied in Penal Code section 190.3. The prejudice was manifest. Asthe court's error is of constitutional magnitude, the prejudicial effect ofthe error must be measured against the standard of Chapman v. California, supra, 386 U.S. at p.18, where reversal is required unless the error was harmless beyond a reasonable doubt. Even under People v. Watson, supra, 46 Cal.2d at p. 386, the error is manifest and extremely prejudicial. But for this error, a result more favorable to appellant would have been reached. Therefore, the judgment of death must be reversed. X. THE TRIAL COURT DENIED APPELLANT DUE PROCESS OF LAW WHENIT INSTRUCTED THE JURY THAT THE IMPACT OF APPELLANT’S EXECUTION ON THE DEFENDANT’S FAMILY MEMBERS SHOULD BE DISREGARDED UNLESSIT ILLUMINATES SOME POSITIVE QUALITY OF THE DEFENDANT’S BACKGROUND OR CHARACTER A. FACTUAL SUMMARY During appellant’s penalty phase case, counsel questioned Vicki Cordova, appelilant’s sister-in-law, about the emotional impact on appellant’s family should he be put to death. Ms. Cordovasaid it would devastate the family. (20 RT 4629.) The prosecutor objected to this line of inquiry andthetrial judge sustained the objection, telling the jury to disregard Ms. Cordova’s answerthat it wasirrelevant to their penalty phase 154 decision. (Ibid.) B. LEGAL ARGUMENT 1. This Court Should Reconsiderits Holding in People v. Ochoa | In People v. Ochoa (1998) 19 Cal.4th 353, 456, this Court ruled that the impact of a defendant’s execution on his family was not relevant consideration in the jury’s determination ofthe penalty. This Court subsequently repeated there was no Eighth Amendmentviolation in failing to allow consideration of such evidence. (People v. Smithey (1999) 20 Cal.4th 939-999-1000.) | This Court’s position, as stated in People v. Benmore (2000) 22 Cal.4th 809, 856, has been that the impact of a death sentence on the defendant’s family and friends, unlike the impact on the victim’s family, has no relevance to the individualized nature of the penalty hearing because it “does notrelate to either the circumstancesofthe capital crimeor the character and background ofthe abused.”’ However, the aboveline of cases failed to consider this Court’s decisions that the California death penalty law does notlimit considerations in favor ofa life sentenceto only-the mitigating factors of section 190.3 but allowsthe jury to consider “any matter” relevant to sentencing. (Penal Code section 190.3; People v. Brown ' (1985) 40 Cal.3d 512, 542.) Further, it failed to considerthat the trial court, while sentencing a non-capital defendant,is specifically allowed to consider 155 the impact ofthe sentence on defendant’s dependent family members. (California Rule of Court 4.414 (b) (5).) It is highly probable that the intent of the electorate in approving the California death penalty statute, was to allow a defendant to introduce the same type of evidentiary considerations that are commonly used in sentencing non-capital defendants. If there is some question as to the meaning ofthe California death penalty statute as to this issue, and the statute is susceptible oftwo possible reasonable interpretations, the interpretation favoring the defendant holds sway. (People v. Garcia (1999) 21 Cal.4th 1,10.) Therefore, appellant requests that this Court reconsider its holding in People v. Ochoa and allow for the admission of the above evidence proffered by the appellant. 2. Precluding Appellant’s Jury From Considering the Impact of his Execution Upon His Family Violated the Eighth Amendmentto the United States Constitution The United States Supreme Court has long held that the Eighth and Fourteenth Amendments does not allow the states to preclude a jury ina capital case from considering any relevant evidence that supports a sentence of less than death. (Skipper v. South Carolina (1986) 476 U.S. 1, 5; Eddings v. Oklahoma (1982) 455 U.S. 104, 114.) According to the High Court, relevant evidenceis not limited to that 156 whichis related to defendant’s moral culpability. It also includes any evidence that has a tendencyto influence the jury to find for a sentence of less that death. (Skipper, supra, 476 U.S. ap pp. 4-5; see also Tennardv. Dretke (2004) 542 U.S. 274, 285.) Further the High Court has madeit clear that evidencerelevantto a sentence less than death need not pass a high threshold of relevance. The relevancetest is met by “evidence whichtendsto logically prove or disprove some fact or circumstance which a fact finder could reasonable deem to have mitigating value.” (Smith v. Texas (2004) 543 U.S. 37, 43-44.) Therefore, while this Court wascorrectin asserting that the sentencing paradigm requires an individual assessment of defendant’s character and crimes,there is no logical reason why appellant should have been barred from presenting evidence of his execution’s impact on his family. If appellant has a family who sufficiently loves him thathis execution would “devastate” them, this is certainly logically relevantto the issue as to whether he deserves life over death. Logically speaking,the impact on appellant’s family should be noless relevant than the impact on the victim’s family. Both speak to the moral impact of the death sentence on those other than the victim and defendant. The High Court in Payne v. Tennessee (1991) 501 US. 808, 823 set forth the reasoning behind allowing “victim-impact”evidence before the 157 jury stating “as a general matter,...victim impact evidenceis not offered to encourage comparative judgements ofthis kind—for instance, that the killer of hardworking, devoted parent deserves the death penalty but that the murderer of a reprobate doesnot. It is designed to show instead each victim’s “uniqueness as an individual human being.’” Using the abovelogic, there is no rationale to prevent the use of evidencerelating to the impact of appellant’s execution on his family. This impact would show appellant's “uniqueness as a humanbeing,”clearly a factor that might well persuade a to impose a sentence other than death. Therefore, the exclusion of this evidence deprived appellantofhis right to a fair determination ofpenalty under the Eighth and Fourteenth Amendmentsto the United States Constitution. XI. APPELLANT’S RIGHT TO DUE PROCESS OF LAW, A FAIR TRIAL, REASONABLE DETERMINATION OF PENALTY AND FREEDOM OF EXPRESSION PURSUANT TO THE FIFTH, SIXTH, EIGHTH AND FOURTEENTH AMENDMENTSTO THE UNITED STATES CONSTITUTION WERE VIOLATED BY THE COURT’S ERRORIN ADMITTING EVIDENCE OF NONSTATUTORY AGGRAVATION IN THE FORM OF APPELLANT’S THREAT AT A PRISON ANGER MANAGEMENTSESSION TO KILL A DEPUTY PROSECUTOR A. PROCEDURAL AND FACTUAL HISTORY In its Motion Regarding Defense Penalty Evidence in Mitigation, filed on February 1, 2007 (8 CT 2068 et seq), the prosecutor profferedto thetrial 158 court as aggravating evidence an alleged threat that appellant made, while appellant was in the custody of the Colorado Department of Correction. (8 CT 2074.) Appellant’s remark was made during a therapy session with his therapist, Lori Clapp. (/bid.) Appellant told Ms. Clapp thathe wantedto kill, Cheryl Smith Howard, the deputy district attorney who had prosecuted him in 1994 for a domestic violence charge. (Ibid.) Ms. Clapp was so concerned about the threat that she felt it necessary to break confidentiality to issue a Tarasoffwarning. (Ibid.) Appellant objected to the use of this statement and a hearing was held on February 1, 2007. At that hearing, thetrial court held that the statement ‘did not amount to an aggravating factor under section 190.3 (b) and forbade the prosecution from presenting this evidence underthat factor. (18 RT 4390- 4397.) Aspart of appellant’s penalty phase case-in-chief, Vicki Cordova, appellant’s sister-in-law,testified that she “never been(sic) (appellant) mistreat any womanorbe violent with any woman, you know.” (20 RT 4622.) On cross-examination, the prosecutor asked Ms. Cordovaif she knew anything about appellant’s “threat”to kill a female deputy district attorney. (20 RT 4636.) Counsel immediately objected to the prosecutor’s referenceto this “threat”’stating that while the defense did put characterin issue, evidence of 159 this alleged threat exceeded bounds ofpermissible rebuttal. (20 RT 4637.) Thetrial court stated that counsel raised the point on direct as to how well he treated womenso the threat against a woman prosecutor wasfair questioning on rebuttal. (20 RT 4637.) Appellant also testified on his own behalf in the penalty phase. During the cross-examination, relying upon the above ruling of the court, the prosecutor questioned appellant aboutthis incident. Appellant acknowledgedthat he did state “[i]f I had a gun in court, I would have killed that bitch.” (20 RT 4831.) However, appellanttestified that he was not threateningto kill the. district attorney, but was simply stating what he felt at an anger managementtherapy session in prison. (bid.) On re-direct, appellant made clearthat in anger managementclass, the inmates were encouraged to express their anger so they could deal with their feelings. (20 RT 4846-4847.) B. LEGAL ARGUMENT Thetrial court was mistaken when it held that evidence of appellant’s claim that he wanted to kill the deputy district attorney was admissible to rebut evidence that appellant treated women with respect. Character evidence under section 190.3 (k), can only be mitigating, and as such, the prosecutor cannot present to the jury evidence of defendant’s bad character in his case-in-chief in the penalty phase of a death penalty trial. (People v. Kipp (2001) 26 Cal.4th 1100, 1134-1135.) However, once defendanthas puthis character into issue at the penalty phase by presenting 160 evidence thereof, the prosecutor may rebut that mitigating evidence with evidence that manifests to the jury a more accurate picture of defendant’s character. (bid; People v. Rodriguez (1986) 42 Cal.3d 730, 791.) But, the prosecution is not allowed to go beyondthe aspects of the defendant’s background actually introduced by him. Wn re Jackson (1992) 3 Cal.4th 578, 613-614; see People v. Ramirez (1990) 50 Cal.3d 1158, 1193.) That is exactly what occurred in the instant case. The evidence presented by appellant was limited to the very narrow issue ofhow appellant treated women in public settings. The evidence introduced by the prosecution far exceeded the scope of appellant’s evidence in that it purported to demonstrate to the jury a violent disposition that extended to homicidal thoughts. Thetrial court misunderstood the connection between appellant’s mitigating evidence and the prosecutor’s rebuttal. The prosecutor’s evidence did not rebut testimony regarding appellant’s treatment ofwomen. The fact that the prosecutor in question was a woman wasirrelevant. Appellant’s anger and “disrespect” was not directed toward women;it was a display of anger toward a prosecutor, who had put him inprison. Thefact thatthis - prosecutor happened to be a woman, does not mean appellant disrespects women. “Evidence presented or argued as rebuttal mustrelate directly to a particular incidentor charactertrait [the] defendant offers on his own behalf.” ( People v. Rodriquez, supra, 42 Cal.3d at p. 792, fn 24.) 161 The rebuttal evidencein the instant case did notrelate directly to the character evidence introduced through Vicky Cordova. Therefore, it should not have been admitted. The presentation of this evidence to the jury was highly prejudicial in that it revealed to them a defendant who,at least on the surface, had murderousintent in his heart. As such, it strongly suggested the appellant was more than capable of murdering Cannie Bullock. In addition to the above considerations, the circumstances under which the so-called threat was made does not lend themselves to use as character rebuttal evidence. The anger management session falls underthe statutory privilege of Evidence Code 1012 and should not have been allowed as evidence before the jury. In addition, the whole purpose of such a group therapy anger managementsession held in prisonis to encourage, or perhaps even indirectly compel, prisoners to publically reveal their thoughts and share them with other persons with similar persons in the group to “provide comfort and resolution”to all involved. (Farrell L. v. Superior Court (1998) 203 Cal.App.3d 521, 527.) Appellant’s statement was madeaspart of such a group anger managementtherapy session. The fact that such a session was in a group setting did not obviate the psychotherapist-patient privilege under Evidence Code section 1012. (/d. at p. 527.) Asthe court’s error is of constitutional magnitude, the prejudicial effect of the error must be measured against the standard of Chapmanv. 162 California, supra, 386 U.S. at p. 18, where reversal is required unless the error was harmless beyond a reasonable doubt. Even under People v. Watson, supra, 46 Cal. 2d at p. 836, the error is manifest and extremely prejudicial. But forthis error, a result more favorable to appellant would have been reached. Therefore, the judgement of death must be reversed. CALIFORNIA’S DEATH PENALTY STATUTEAS INTERPRETED BY THIS COURT AND APPLIED AT APPELLANT’S TRIAL, VIOLATES THE UNITED STATES CONSTITUTION XII. APPELLANT’S DEATH PENALTY SENTENCEIS INVALID BECAUSESECTION 190 .2 IS IMPERMISSIBLY BROAD California’s death penalty statute does not meaningfully narrow the pool of murderers eligible for the death. As such, the statute thereforeis in violation ofthe Eighth and Fourteenth Amendments to the U.S. Constitution. (Furman v. Georgia (1972) 408 U.S. 238 [conc. opn. Of White, J.]; accord, Godfrey v. Georgia (1980) 446 U.S. 420, 427.) The requisite narrowing in California is accomplishedin its entirely by the “special circumstances”set out in section 190.2. This Court has explained that “{U]nder our death penalty law,...the section 190.2 ‘special circumstances’ perform the same constitutionally required ‘narrowing’ function as the ‘aggravating circumstances’ or ‘aggravating factors’ that some of the other states use in their capital sentencing statutes.” (People v. 163 Bacigalupo (1993) 6 Cal.4th 857, 868.) Section 1902's all-embracing special circumstances were created with an intent directly contrary to the constitutionally necessary function of the state legislative definition: the circumscription of the class ofpersons eligible for the death penalty. This is because,in California, almost all felony- murders are now special circumstance cases, and felony-murder cases include accidental and unforeseeable deaths, as well as acts committed in a panic, or under the dominion of a mental breakdown,or acts committed by others. (People v. Dillon (1984) 34 Cal.3d 441.) Section 190.2's reach has been ~ extendedto virtually all intentional murders by this Court’s construction of the lying-in-wait special circumstance. (See People v. Hillhouse (2002) 27 Cal.4" 469, 500-501, 512-515; People v. Morales (1989) 48 Cal.3d 527, 557- 558, 575.) These broad categories are joined by so many other categories of special circumstance murderthat the statute comes very close to achievingits goal of making every murderereligible for death. The death penalty scheme as applied to felony murder sweepsin a broad andarbitrary fashion. While all willful, deliberate and premeditated killings are first degree murder under the California statute, not all such killings are subject to the death penalty. On the other hand, any perpetrator of a felony murder, by virtue of even an unintended killing, may be sentenced to die. Such a sorting cannot be anything other than arbitrary and capricious, in violation of the Eighth 164 Amendment. XII. APPELLANT’S DEATH PENALTY IS INVALID BECAUSE §190.3(a) AS APPLIED ALLOWS ARBITRARY AND CAPRICIOUS IMPOSITION OF DEATH, IN VIOLATION OF THE FIFTH, SIXTH, EIGHTH AND FOURTEENTH AMENDMENTSTO THE UNITED STATES CONSTITUTION Section 190.3(a) violates the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution in that it has been applied in such a wanton and freakish manner that almost every feature of every murder, even features squarely at odds with features supportive of death sentences in other cases, have been characterized by prosecutor’s as “aggravating” within the statutes meaning. Factor(a), listed in section 190.3, directs the jury to considerin aggravation “circumstancesofthe crime.” Having at all times foundthat this broad term met constitutional scrutiny, this Court has never applied a limiting constructiontothis factor. The purpose of section 190.3, according to its language and interpretations by the United States and California Supreme Courts, is to inform the jury ofwhatfactorsit should considerin assessing the appropriate penalty. Factor (a) has been used in ways so arbitrary and contradictory as to violate both the federal guarantee of due process of law and the Eighth Amendment. 165 XIV. CALIFORNIA’S DEATH PENALTY STATUTE CONTAINS NO SAFEGUARDS TO AVOID ARBITRARY OR CAPRICIOUS SENTENCING, AND DEPRIVES APPELLANT OF THE RIGHT TO A JURY TRIAL ON EACH ELEMENT OF A CAPITAL CRIME:IT THEREFORE VIOLATES THEFIFTH, SIXTH, EIGHTH, AND FOURTEENTH AMENDMENTSTO THE UNITED STATES CONSTITUTION INTRODUCTION Relying on the cases of Cunningham v. California (2007) 549 US. 270, Blakely v. Washington (2004) 542 U.S. 296, Ring v. Arizona (2002) 536 U.S. 584, and Aprendi v.New Jersey (2000) 530 U.S. 466, on January 31, 2007, appellant filed his trial Motion to Bar the Death Penalty. Appellant arguedthat the failure of California’s death penalty statutes to require that a jury unanimouslyfind proof of every aggravating factor beyond a reasonable doubt renders the death penalty unconstitutional. (8 CT 2052 et seq.) It was also argued that according to Cunningham, since aggravating factors had to be proven to the jury, they must be listed in the Information. The bottom line of appellant’s trial argument is that in California there are none of thesafeguards commonto other death penalty sentencing schemes to guard againstthe arbitrary imposition of death. Juries do not have to make written findings or achieve unanimity as to aggravating circumstances. They do not have to believe beyond a reasonable doubt that aggravating circumstances have been proven,that they outweigh the 166 mitigating circumstances, or that death is the appropriate penalty. In fact, except as to the existence of other criminal activity and prior conviction, juries are not instructed on any burden ofproofat all. Not only is inter-case proportionality review not required, it is not permitted. Underthe rationale that a decision to impose death is “moral,” and “normative,” the fundamental components of reasoned decision-making that applyto all other parts of the law have been banished from the entire processing of making the most consequential decision a juror can make - whether or not to impose death. A. BEYOND A REASONABLE DOUBTIS THE APPROPRIATE BURDEN OF PROOF FOR FACTORS RELIED ON TO IMPOSE A DEATH SENTENCE, FOR FINDING THAT AGGRAVATING FACTORS OUTWEIGH MITIGATING FACTORS, AND FOR FINDING THAT DEATH IS THE APPROPRIATE SENTENCE. In Apprendi v. New Jersey, supra, 530US. 466, the U.S. Supreme Court held that a state may not impose a sentence greater than that authorized by the jury’s simple verdict of guilt, unless the facts supporting an increased sentence (other than a prior conviction) are also submitted to the jury and proved beyond a reasonable doubt. (/d. at 478.) This decision seemed to confirm that as a matter of due process under the Fourteenth Amendment, the proof beyond a reasonable doubt standard must apply to all ofthe findings the sentencing jury must makeas a prerequisite to its consideration of whether death is the appropriate punishment. In Ring v. Arizona, supra, 536 U.S. 584, the High Court held that the 167 Sixth and Fourteenth Amendment guaranteesofajury trial means that such determinations must be made by a jury, and must be made beyond a reasonable doubt. In People v. Snow (2003) 30 Cal.4th 43, 126, fn 32, this Court stated that the holding of Apprendi v. New Jersey, supra, 530 U.S. 466, which held that a jury must find, unanimously and beyonda reasonable doubt, any fact that increases the maximumsentence possible for a defendant, does not affect California’s death penalty process. The reasoning given was oncea special circumstance hasbeen found beyond a reasonable doubt the defendantis death eligible and jury findings as to aggravating circumstances do not expose a defendant to a higher maximum penalty. A careful look at California’s death penalty procedures showsthat essential steps in the death-eligibility process take place during the penalty phase of a capitaltrial and these steps are subject to the mandates ofRing. To summarize, there are four steps to determining whether the sentence in a California capital case will be death or LWOP:(1) the defendant must be found guilty of first-degree murderand at least one ofthe “special circumstances enumerated in section 190.2 must be found; (2)at least one of a different list of aggravating factors from section 190.3 must be found; (3) aggravating factors must be found to outweigh any mitigating factors present; and (4)if, and only if, aggravating factors are found to 168 outweigh mitigating factors present, the jury must choose between death and LWOP. Ofthese four steps only the first occurs during the guilt phase of the trial, attended by the Sixth Amendment’s protections of unanimity and proof beyond reasonable doubt. In contrast, Steps 2, 3, and 4 occur during the penalty phase. Although occurring in the penalty phase, in actuality steps 2 and 3 are part ofthe eligibility determination as described by this Court in People v. Tuilaepa, supra, 4 Cal.4th 569, rather than the selection determination. Like the Arizona defendant in Ring convictedoffirst-degree murder, a person convicted of first-degree murder with a special circumstance finding in Californiais eligible for the death penalty in a formal sense only (Ring, supra, 536 U.S.at pp. 602-605); death cannot be imposeduntil Steps 2 and 3 have occurred. B. EVEN IF PROOF BEYOND A REASONABLE DOUBT WERE NOT THE CONSTITUTIONALLY REQUIRED BURDEN FOR FINDING (1) THAT AN AGGRAVATING FACTOR EXISTS,(2) THAT THE AGGRAVATING FACTORS OUTWEIGH THE MITIGATING FACTORS, AND (3) THAT DEATH IS THE APPROPRIATE SENTENCE, PROOF BY A PREPONDERANCE OF THE EVIDENCE WOULDBE CONSTITUTIONALLY COMPELLED AS TO EACH SUCH FINDING California imposes on the prosecution the burden to persuade the sentencer that the defendant should receive the most severe sentence possible. It does so, however, only in non-capital cases. (Cal R. Ct. 420(b) [existence 169 of aggravating circumstances necessary for imposition ofupper term must be proved by preponderance of evidence].) To provide greater protection to non- capital defendants than to capital defendants violates the due process, equal protection, and cruel and unusual punishmentclauses ofthe Eighth and Fourteenth Amendments, and the Sixth Amendment’s guaranteeto trial by jury. (See e.g., Mills v. Maryland (1988) 486 U.S. 367, 374; Myers v. Yist (9" Cir. 1990) 897 F 2d 417, 421; Ring v. Arizona, supra, 122 8. Ct. at 1443.) C. THE TRIAL COURT’S FAILURE TO INSTRUCT THE JURY ON ANY PENALTY PHASE BURDEN OF PROOF VIOLATED APPELLANT’S CONSTITUTIONAL RIGHTS TO DUE PROCESS AND EQUAL PROTECTION OF THE LAWS AND HIS RIGHT NOT TO BE SUBJECTED TO CRUEL AND UNUSUAL PUNISHMENT Appellant’s death sentence violates the Fifth, Eighth, and Fourteenth Amendments to the United States Constitution because it was imposed pursuantto a statutory schemethat does notrequire (except as to prior criminality) that aggravating circumstances exist beyond a reasonable doubt, or that aggravating circumstances outweigh mitigating circumstances beyond a reasonable doubt, or that the jury be instructed on any burden of proofat all when deciding the appropriate penalty. (See Santosky v. Kramer (1982) 455 U.S. 745, 754-767; In Re Winship (1970) 397 U.S. 358.) 170 D. CALIFORNIA LAW VIOLATES THE SIXTH, EIGHTH AND FOURTEENTH AMENDMENTSTO THE UNITED STATES CONSTITUTION BY FAILING TO REQUIRE UNANIMOUS JURY AGREEMENT ON AGGRAVATING FACTORS. Jury unanimity was deemed such an integral part of criminal jurisprudence by the Framers ofthe California Constitution that the requirementdid not even have to be directly stated. To apply the requirement to findings carrying a maximum punishment of one year in the county jail - but not to factual findings that often have a “substantial impact on the jury’s determination whether the defendant shouldlive or die” (People v. Medina (1995) 11 Cal.4th 694, 763-764) - would, by its inequity, violate the equal protection clause and byits irrationality violate both the due process and cruel and unusual punishment clauses ofthe state and federal Constitutions. This claim must be consideredin light of Cunningham v. California (2007) 549 U.S. 270. Cunningham supports appellant’s contention that the aggravating factors necessary for the imposition of a death sentence must be foundtrue bythe jury beyond a reasonable doubt and by unanimous decision ofthe jury. Because of Cunningham, this Court’s effort to distinguish Ring v. Arizona, supra, and Blakely v. Washington, supra, 542 US. 296 should be reexamined. (See People v. Prieto (2003) 30 Cal.4th 226, 275-276 [rejecting the argumentthat Blakely requires findings beyond a reasonable doubt] and People v. Morrison (2004) 34 Cal.4th 698, 731 171 [same].) E. CALIFORNIA LAW VIOLATES THEFIFTH, SIXTH, EIGHTH AND FOURTEENTH AMENDMENTSTO THE UNITED STATES CONSTITUTION BY FAILING TO REQUIRE THAT THE JURY BASE ANY DEATH SENTENCE ON WRITTEN FINDINGS REGARDING AGGRAVATING FACTORS The failure to require written or other specific findings by the jury regarding aggravating factors deprived appellant of his federal due process and Eighth Amendmentrights to meaningful appellate review. (Gregg v. Georgia (1976) 428 U.S. 153,195.) And especially given that California juries have total discretion without any guidance on howto weigh aggravating and mitigating circumstances (Tuilaepa v. California (1994) 512 U.S. 967, 979-980), there can be no meaningful appellate review withoutat least written findings because it will otherwise be impossible to “reconstruct the findings ofthe state trier of fact.” (See Townsend v. Sain (1963) 372 U.S. 293, 313-316.) F. THE CALIFORNIA DEATH PENALTY STATUTE AS INTERPRETED BY THE CALIFORNIA SUPREME COURT FORBIDS INTER-CASE PROPORTIONALITY REVIEW, THEREBY GUARANTEEING ARBITRARY, DISCRIMINATORY, OR DISPROPORTIONATE IMPOSITIONS OF THE DEATH PENALTY. One commonly utilized mechanism for helping to ensurereliability and proportionality in capital sentencing is comparative proportionality review - a procedural safeguard this Court has eschewed.In Pulley v. Harris (1984) 465 U.S. 37, 51, the High Court, while declining to hold that 172 comparative proportionality review is an essential component of every constitutional capital sentencing scheme, did note the possibility that “there could be a capital sentencing schemeso lacking in other checks on arbitrariness that it would not pass constitutional muster without comparative proportionality review.” Given the tremendousreach ofthe special circumstances that make one eligible for death as set out in section 190.2 - a significantly higher percentage ofmurderers than those eligible for death under the 1977 statute considered in Pulley v. Harris - and the absence of any other procedural safeguards to ensure a reliable and proportionate sentence, this Court’s categorical refusal to engage in inter-case proportionality review now violates the Eighth Amendment. G. IN THE PENALTY PHASE THE PROSECUTION MAY NOT RELY ON UNADJUDICATED CRIMINAL ACTIVITY; FUTHER, EVEN IF IT WERE CONSTITUTIONALLY PERMISSIBLE FOR THE PROSECUTORTO DO SO, SUCH ALLEGED CRIMINAL ACTIVITY COULD NOT CONSTITUTIONALLY SERVE AS FACTORIN AGGRAVATION UNLESS FOUND TO BE TRUE BEYOND A REASONABLE DOUBT BY A UNANIMOUS JURY The United States Supreme Court’s recentdecision in Ring v. Arizona, supra, and Apprendi v. New Jersey, supra, confirm that under the Due Process Clause ofthe Fourteenth Amendmentandthe jury trial guarantee of the Sixth Amendment, all of the findings prerequisite to a sentence of death must be made beyond a reasonable doubtby a jury acting as a collective 173 entity. (See Section A, ante.) The application ofRing and Apprendito California’s capital sentencing scheme requires that the existence of any aggravating factors relied upon to impose a death sentence be found beyond a reasonable doubt by a unanimousjury. (See Section A, ante.) Thus, even ifit were constitutionally permissible to rely upon alleged unadjudicated criminal activity as a factor in aggravation, such alleged criminal activity would have to have been found beyond a reasonable doubt by a unanimous jury. Appellant’s jury wasnot instructed on the need for such a unanimousfinding; nor is such an instruction generally provided for under California’s sentencing scheme. H. THE JUROR’S USE OF RESTRICTIVE ADJECTIVES IN THE LIST OF POTENTIAL MITIGATING FACTORS IMPERMISSIBLY ACTED AS BARRIERS TO CONSIDERATION OF MITIGATION BY APPELLANT’S JURY Theinclusionin the list of potential mitigating factors of such adjectives as “extreme”(see factors (d) and (g)), and “substantial”(see factor (g)), acted as barriers to the consideration ofmitigation in violation of the Fifth, Sixth, Eighth, and Fourteenth Amendments. (Mills v. Maryland, supra, . 486 U.S. 367; Lockett v. Ohio, supra, 438 U.S. 586.) In accordance with customary state court practice, nothing in the instructions advised the jury whichofthe listed sentencing factors were aggravating, which weremitigating, or which could be either aggravating or 174 mitigating depending uponthejury’s appraisal of the evidence.It is thus likely that appellant’s jury aggravated his sentence upon the basis ofwhat were, as a matter of state law, non-aggravating factors and did so believing that the state - as represented by thetrial court - had identified them as potential aggravating factors supporting a sentence of death. This violated not only state law, but the Eighth Amendment, as well, for it madeit likely that the jury treated appellant “cas more deserving of the death penalty than he might otherwise be by relying on...illusory circumstance[s].” (Stringerv. Black (1992) 503 U.S. 222, 235.) J. CALIFORNIA LAW THAT GRANTS UNBRIDLED DISCRETION TO THE PROSECUTOR COMPOUNDS THE EFFECTS OF VAGUENESS AND ARBITRARINESS INHERENT ON THE FACE OF THE CALIFORNIA STATUTORY SCHEME Under California law, the individual county prosecutor has complete discretion to determine whether a penalty hearing will be held to determine if the death penalty will be imposed. As Justice Broussard notedin his dissenting opinion in People v. Adcox, supra, 47 Cal.3dat pp. 275-276, this creates a substantial risk of county-by-county arbitrariness. The arbitrary and wanton prosecutorial discretion allowed by the California scheme-in charging, prosecuting and submitting a case to the jury as a capital crime- merely compounds,in application, the disastrous effects of vagueness and arbitrariness inherent on the face of the California statutory 175 scheme. Just like the “arbitrary and wanton”jury discretion condemned in Woodsom v. North Carolina (1976) 428 U.S. 280, 303, suchunprincipled, broad discretion is contrary to the principled decision-making mandated by Furman v. Georgia, supra, 408 U.S. 238. XV. EVEN IF THE ABSENCE OF THE PREVIOUSLY ADDRESSED PROCEDURAL SAFEGUARDS DID NOT RENDER CALIFORNIA’S DEATH PENALTY SCHEME CONSTITUTIONALLY INADEQUATE TO ENSURE RELIABILITY AND GUARD AGAINST ARBITRARY CAPITAL SENTENCING, THE DENIAL OF THOSE SAFEGUARDS TO CAPITAL DEFENDANTS VIOLATES THE CONSTITUTIONAL GUARANTEE OF EQUAL PROTECTION OF THE LAWS Asnoted in the preceding arguments, the United States Supreme Court has repeatedly directed that a greater degree ofreliability is required when death is to be imposed, and that courts must be vigilant to ensure procedural fairness and accuracyin fact finding. (Monge v. California (1998) 524 U.S. 721, 731-732.) Despite this directive, California’s death penalty scheme provides significantly fewer procedural perfections for persons facing a death sentence than are afforded persons charged with non-capital crimes. This differential treatment violates the constitutional guarantee of equal protection of the laws. XVI. CALIFORNIA’S USE OF THE DEATH PENALTYAS A REGULAR FORM OF PUNISHMENT FALLS SHORT OF INTERNATIONAL NORMS OF HUMANITY AND DECENCY, AND VIOLATES THE EIGHTH AND FOURTEENTH AMENDMENTS Although this country is not bound by thelaws of any other 176 sovereignty in its administration of our criminal justice system, it has relied from its beginning on the customsandpractices of other parts of the world to inform our understanding.“When the United States became an independent nation, they became,to use the language of Chancellor Kent, ‘subject to that system of rules which reason, morality, and custom had established among the civilized nations of Europeas their public law.’” (1 Kent’s Commentaries 1, quoted in Miller v. United States (1871) 78 U.S. [11 Wall.] 268, 315 [20 L.Ed. 135] [dis. opn. of Field, J.]; Hilton v. Guyot (1895) 159 U.S. 113, 227; ' Sabariego v. Maverick (1888) 124 U.S. 261, 291-292; Martin v. Waddell’s Lessee (1842) 41 US. [16 Pet.] 367, 409 [10 L. Ed. 997].) Recently, the United States Supreme Court in Roper v. Simmons (2005) 543 U.S. 551, 567, struck downthe death penalty for defendants who committed the capital crime as juveniles, signaling the High Court’s inclination to bring this country more in line with international standards vis-a-vis capital punishment. (Jbid.) Thus, the very broad death schemein California, and the use of death as regular punishment randomly imposed,violates the Eighth and Fourteenth Amendments. Therefore, appellant’s death sentence should beset aside. XVII. THE CUMULATIVE EFFECT OF GUILT AND PENALTY PHASE ERRORS WAS PREJUDICIAL There were numerouspenalty trial errors in this case. There werealso significant guilt phase errors. This Court has recognizedthat guilt 177 phaseerrors that may not otherwise be prejudicial as to the guilt phase may nevertheless improperly and adversely impact the jury’s penalty determination. (See, for example, Jn re Marquez (1992) 1 Cal. 4" 584, 605, 607-609.) This Court is also obliged to consider the cumulative effect of multiple errors on the sentencing outcome.(Taylor v. Kentucky (1978) 436 U.S. 478, 487-488; People v. Holt (1984) 37 Cal.3d 436, 459.) The cumulative weight ofthe guilt and penalty phase errors was prejudicial to appellant. As demonstrated elsewhere in this opening brief with respect to various guilt phase errors, appellant’s rights were violated under the Fifth, Sixth, Eighth and Fourteenth Amendmentsto the United States Constitution. In the penalty trial, appellant was deprived ofa fair and reliable determination ofpenalty underthe Fifth, Sixth, Eighth, and Fourteenth Amendmentsto the United States Constitution. Together, the cumulative effect of these errors was prejudicial. It is both reasonabye probable andlikely that boththe jury’s guilt and penalty determinations were adversely affected by the cumulativeerrors. (Chapmanv. California, supra, 386 U.S.at 24.) In the absence ofthe errors, _ the outcome would have been more favorable to appellant.It certainly cannot be said that the errors had “no effect” on the jury’s penalty - verdicts. 178 CONCLUSION Byreason ofthe foregoing, appellant, Joseph Cordova, respectfully requests that the judgment of conviction on all counts, the special circumstance findings, and the judgment of death be reversed and the matter be remandedto the trial court for a newtrial. Appellant was denied his First, Fifth, Sixth, Eighth, and Fourteenth Amendmentrights guaranteed by the United States Constitution in respect to both the guilt and penalty trials. The grievouserrors deprived appellantof his right to a meaningful determination of penalty. The citizens of the State of California can have no confidence in the reliability of any of the verdicts rendered inthis case. Respectfully submitted, A Glen Niemy Attorney for Appellant May 14, 2010 179 CERTIFICATE OF COMPLIANCE I, hereby certify that this Appellant’s Opening Briefwas composed in 13 point font, New Times Roman type, and consists of a total of 40900 words. onan LU “GlenNiemy, #sq Attorney for Appellant 180 DECLARATION OF SERVICE Re: People v. Joseph Cordova Superior Court 040292 Supreme Court $152737 I, Glen Niemy, declare that I am over the age of 18 years, not a party to the within cause, my business address is P.O. Box 764, Bridgton, ME 04009. I served a copy ofthe attached Appellant’s Opening Brief on each of the following by placing the same in an envelope addressed (respectively) California Supreme Court (original and 14 copies) 350 McAllister St San Franscisco, CA 94102 Linda Robertson, Esq California Appellate Project 101 2" St, Ste 600 San Francisco, CA 94102 Joseph Cordova P.O. Box F73604 San Quentin, CA 94974 Attorney General’s Office 300 So. Spring St Los Angeles, CA 90013 District Attorney ofthe County of Contra Costa 900 WardSt . Martinez, CA 94553 ~ Each envelope was then on May 16, 2013, sealed and placed in the United States mail, at Bridgton Maine, County of Cumberland, the county in which I have my office, with the postage thereon fully prepaid. I declare underthe penalty of perjury and the laws of California and Maine that the foregoing is true and correct this May 16, 2013 at Bridgton, ME Glen Niemy SUPREME COURT COPY SUPREME COURT Glen Niemy, Attorney at Law F | L E D P.O. Box 764 Bridgton, ME 04009 MAY 23 2013 (207) 647-2600 State Bar # 73646 Frank A. McGuire Clerk Attorney for Joseph S. Cordova Deputy SUPREME COURTOF THE STATE OF CALIFORNIA PEOPLE OF THE STATE OF CALIFORNIA) Superior Court 040292-5 ) Supreme Court §152737 ) Plaintiff, ) ) JOSEPH S. CORDOVA, ) ) Defendant. ) (Capital Case) ) ) ) SUPPLEMENTAL DECLARATIONOF SERVICE Re: People v. Joseph Cordova Superior Court 040292-5 Supreme Court 8152737 I, Glen Niemy,declare that I am overthe age of 18 years, not a party to the within cause, my business address is P.O. Box 764, Bridgton, ME 04009. I served a copy ofthe attached Appellant’s Opening Brief on each of the following by placing the same in an envelope addressed (respectively) .California Supreme Court (original and 14 copies) 350 McAllister St San Franscisco, CA 94102 a re aa nt ge osPPE SP Tecan om a eas Pod ha ; ng i Peogay Ui 1 ' Linda Robertson, Esq CAP 101 2" St, Ste 600 San Francisco, CA 94105 Joseph Cordova F 73604 San Quentin, CA 94974 Attorney General’s Office Ronald Matthias, Esq 455 Golden Gate Ave, Ste 11000 San Francisco, CA 94102 Douglas McMaster, Esq Deputy District Attorney of the County of Contra Costa 900 Ward St ~ Martinez, CA 94553 Hon.Peter Spinetta _ Contra County Superior Court c/o Appeals Section 725 Court St Martinez, CA 94533 Each envelope, was then on May 15, 2013, sealed and placed in the United States mail, at Bridgton Maine, County of Cumberland, the county in which I have myoffice, with the postage thereon fully prepaid. In addition, an additional copy was forwarded to Judge Peter Spintta, c/o the Contra Costa County Superior Court on May 21, 2013. I declare under the penalty of perjury and the laws of California and Maine that the foregoing is true and correct this May 21, 2013 at Bridgton, ME. Le Glen Niemy