PEOPLE v. CORDOVA (JOSEPH SEFERINO)

Appellant’s Reply Brief

Cal.March 17, 2015

SUPREME COURT COPY Dam5Sf 4 IN THE SUPREME COURT OF THE STATE OF CALIFORNIA PEOPLE OF THE STATE OF ) 8152737 CALIFORNIA ) ) Plaintiff/Respondent ) Contra Costa County ) 040292-5 VS. ) ETTCOURT JOSEPH S. CORDOVA ) FIL ED M Defendant/Appellant ) AR 17 2015 Frank 4 Victsuire Clerkcee: Deputy—-—— APPELLANT’S REPLY BRIEF An Automatic Appeal from the Judgment ofthe Contra Costa superior Court, Honorable Peter L. Spinetta, Judge. Glen Niemy Attomey at Law P.O. Box 3375 Portland, ME 04104 207-699-9713 gniemy@yahoo.com Fax 207-747-5127 Attorney for Appellant State Bar # 73646 DEATH PENALTY IN THE SUPREME COURTOF 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 REPLY BRIEF An Automatic Appeal from the Judgment ofthe Contra Costa superior Court, Honorable Peter L. Spinetta, Judge. Glen Niemy Attorney at Law P.O. Box 3375 Portland, ME 04104 207-699-9713 gniemy@yahoo.com Fax 207-747-5127 Attorney for Appellant State Bar # 73646 TABLE OF CONTENTS TABLE OF AUTHORITIES...cececceeeeessenesenseeeessseessenseee1X GUILT PHASE ARGUMENTS I. DUE TO THE PERVASIVE NEGLIGENCE AND INDIFFERENCE 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 FOURTEENTH AMENDMENTSTO THE UNITED STATES CONSTITUTION.2.0000.eecceeeeesee cesses ee sseeenseceesnceeeees2 A. SUMMARYOF APPELLANT’S ARGUMENT..............2 B. SUMMARYOF RESPONDENT?’S BRIEF ARGUMENTnoooceccececccccccccesecccscccesssessscccsccceesccessssssesseseeess4 C. APPELLANT’S REPLYARGUMENT...7 L. Tmtroductionin......ccccccccceeccceecensesenssscrenessesseuees7 2. The Government’s Intentional Lack of Interest in Investigating this Case Caused a 23 Year Delay.in Prosecution that Made the Showing of “Particularized” Prejudice Both Impossible and Unmecessary................:cccescccsscseeecseeeecsseeeesserenseeeees 10 3. The Cases Cited By Respondentin Its Brief WereUnavailing to Its Argument Due to Their FactualDissimilarity to the Instant Case...................21 (i) Il. THE TRIAL COURT VIOLATED APPELLANT’S RIGHT TO DUE PROCESS OF LAW UNDER THEFIFTH AND FOURTEENTH AMENDMENTSTO THE UNITED STATES CONSTITUTION BY ALLOWING EVIDENCE RELATING TO APPELLANT’S1992 AND 1997 CONVICTIONS OF SEXUAL ASSAULTUPONNINAS. AND CURTISBuuuii..cecccccecccesecececeeecseeeceenseeseeesreessnesseseeeseaenenasonaeeeees4] A. SUMMARYOF APPELLANT’S ARGUMENT..............41 1. Factual Summary.............cccccccseeseeesseeereeereeneneeneneeenes41 2. Legal Argument...ccccscseeseseesenerereseeseeeeesseeneneenenes42 B. SUMMARYOF RESPONDENT’S ARGUMENT...........46 C. APPELLANT’S REPLY ARGUMENT...............-:48 1. General Law of Admissibility of Uncharged Crimes Pursuant to Evidence Code section 1108........48 2. Standard Of Review ............:.c:ccescccessssesseeeeneeeeeeteseetes49 3. Analysis of Instant Case Undersection 1108...........51 4. Evidence of the Uncharged CrimesIs Not Admissible Under Evidence Codesection 1101 (b)....73 Ill. APPELLANT’S RIGHTS TO DUE PROCESS OF LAW UNDER THE FIFTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION WERE VIOLATED BY THE TRIAL COURT’S REFUSAL TO ORDER DISCOVERY OF REQUESTED MATERIAL EVIDENCE....00...cccccccccccccsccceeeeeeeseseseesensesseeseenesenenaeeeesenessessusesasseeeseengees77 A. SUMMARYOF APPELLANT’S ARGUMENT...............77 (ii) 1. Factual Background................cee eceeeeeeneeeneeteeeeeee77 2. Summary of Appellant’s Legal Argument............... 83 B. SUMMARYOF RESPONDENT’S ARGUMENT............85 C. APPELLANT’S REPLY ARGUMENT................:cccseee87 1. FSA WasPart of the Prosecution’s “Team”...........88 2. The Information Withheld From Counsel Was Matteriiall.................::ccccccccseeceeeseesesecsscecnsescenseeeeesseeneeeeees93 3. Public Policy Considerations..................::cceseeeeeeeees97 A, Prejudice...cescsssssssessseseeseeenateceseseeeeneseeseneneees99 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.........c0cccceccccesesesseecesecsnsetecesseeteeenees99 A. SUMMARYOF APPELLANT’S ARGUMENT...............99 B. SUMMARYOF THE RESPONDENT’S ARGUMENT..104 C. APPELLANT’S REPLY ARGUMENT...............::0:008 . 105 V. THE PROSECUTOR VIOLATED APPELLANT’S RIGHT TO DUE PROCESS OF LAW BY IMPROPERLY MISLEADING HE JURY IN HER ARGUMENT...0.0..cccecececeesssecessenecessssseseseesecseneesecseaeseseneesesseceseneasenseeasens 113 (iii) 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 ACCEPTEDIN THE SCIENTIFIC COMMUNITY THEREBY VIOLATING APPELLANT’S RIGHT TO DUE PROCESS OF LAW,A FAIR TRIAL, AND FAIR DETERMINATION OF GUILT AND PENALTY UNDERTHEFIFTH,SIXTH, EIGHTH, AND FOURTEENTH AMENDMENTSTO THE UNITED STATES CONSTITUTION..113 VII. 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...ceceeeeeseeeneeee 114 A. SUMMARYOF APPELLANT’S ARGUMENT...........0..0.0... 114 B. SUMMARYOF RESPONDENT’S ARGUMENT.......0.00...... 115 C. APPELLANT’S REPLY ARGUMENT......0.0...ccccceeeeeseees 115 PENALTY PHASEISSUES VIIDUE TO THE TRIAL COURT’S IMPROPER INSTRUCTION TO THE JURY PANEL, APPELLANT WASDEPRIVED OFHIS RIGHT TO A FAIR DETERMINATION OF THE PENALTY UNDER THE EIGHTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION....00.....ccccceeeeseeeeeees 121 (iv) LIX. APPELLANT’S RIGHT TO DUE PROCESSOF 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 NON- STATUTORY AGGRAVATIONIN THE FORM OF APPELLANT’S PRIOR ACTS OF SEXUAL TOUCHING........... 122 A. SUMMARYOF APPELLANT’S ARGUMENT.............. 122 B. SUMMARYOF RESPONDENT’S ARGUMENT............ 124 1. The Non-Violent Crimes Were Circumstances of the Offense Pursuant to Penal Codesection 190.3 ().....cccceceescesscesssssesseseeeeenecseenseaenensssseeeecnsaesenensnnes 124 2. The Colorado Molestations Qualified as Rebuttal Character Evidence..................::c:ccceseseeesreeeeeeeeeeennerenseees 126 3. Appellant Has Forfeited His Claim.....................-+- 127 C. APPELLANT’S REPLY ARGUMENT............-..-:::-+ 128 1. The Non-Violent Crimes Were Not Circumstances of the Offense Pursuant to Penal Code section 190.3 (a)...cccccscesceesecsssstsscsesseeseseeneensseeneesseetenesnecsesesseneeeaesees 128 2. The Evidence of the Colorado Crimes Do Not Qualify as “Rebuttal Evidence”...................scceeeeeee 134 3. Appellant Has Not Forfeited His Claim.................... 137 4. The Error Was Not Harmlless..................--:-::scsee 138 X. THE TRIAL COURT DENIED APPELLANT DUE PROCESS OF LAW WHENIT INSTRUCTED THE JURY THAT THE IMPACT OF APPELLANT’S EXECUTION ON HIS FAMILY SHOULD BE DISREGARDED UNLESSIT ILLUMINATES SOMEPOSITIVE QUALITY OF APPELLANT’S BACKGROUND OR CHARACTER...141 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 NON-STATUTORY AGGRAVATIONIN THE FORM OF APPELLANT’S THREATAT A PRISON ANGER MANAGEMENT SESSION TO KILL A DEPUTY PROSECUTOR................:c:c00 142 A. SUMMARYOF APPELLANT’S ARGUMENT.............. 142 B. SUMMARY OF RESPONDENT’S ARGUMENT............ 144 C. APPELLANT’S REPLY ARGUMENT.............:::scseeee 146 1. Appellant Did Not Forfeit His Claim......................... 146 2. The Trial Court Abused Its Discretion in Permitting the Prosecutor to Question Defense Witnesses About the Threatening COMMEDUES............:cccccceeeceesesesesesssesessnsseseesssrsceseessesesseenens 147 3. Appellant’s Threat Wasa Privileged Communication...............ccccccceecceeeeecsseeesesenesssseevseeseeeeses 150 4. The Trial Courts Error Was Not Harmless.............. 150 (vi) CALIFORNIA’S DEATH PENALTY STATUTE AS INTERPRETED BY THIS COURT AND APPLIED AT APPELLANT’STRIAL, VIOLATES THE UNITED STATES CONSTITUTION...cececcccceeceeessssenseseeeeseseeeeeeses 151 XII. APPELLANT’S DEATH PENALTY SENTENCEIS INVALID BECAUSE SECTION190 .2 IS IMPERMISSIBLY BROAD 0000. ceccecceceecceceeceeeeeeeeeeseeeeeceseseeneeeaceaeeeseneseesesesassecneeseneeeegs 151 XIII. APPELLANT’S DEATH PENALTYIS INVALID BECAUSE§190.3(a) AS APPLIED ALLOWS ARBITRARY AND CAPRICIOUS IMPOSITION OF DEATH,IN VIOLATION OF THEFIFTH, SIXTH, EIGHTH AND FOURTEENTH AMENDMENTSTO THE UNITED STATES CONSTITUTION...eeeceeeeceseeeeeeeseeeseseseessessenssesessauentesscesssseaeees 151 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 ELEMENTOF A CAPITAL CRIME:IT THEREFORE VIOLATES THE FIFTH, SIXTH, EIGHTH, AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION.....0000ccceeeees 151 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....0000.0.0ccccccccccssscssessessseeseesenseseees 152 (vii) XVI. CALIFORNIA’S USE OF THE DEATH PENALTY AS A REGULAR FORM OF PUNISHMENT FALLS SHORT OF INTERNATIONAL NORMSOF HUMANITY AND DECENCY, AND VIOLATES THE EIGHTH AND FOURTEENTH AMENDMENTB................. 152 XVII. THE CUMULATIVE EFFECT OF GUILT AND PENALTY PHASE ERRORSWAS PREJUDICIAL............ 152 CONCLUSION(uo o.cccscccsececeseseseneceneersssasecseeeneaasneseaceeneseserersssueneseneseneaseneneas 153 CERTIFICATION OF COMPLIANCE...........:c:cccecsstsesesssestseseeseenenneees 154 (viii) TABLE OF AUTHORITIES CASE AUTHORITY: United States Supreme Court Authority Barker v. Wingo (1972) 407 U.S. 514...eeeeeeeseeeeeetseseeerens 14 Barnett v. Superior Court (2010) 50 Cal.4th 890..........ee85 Brady v. Maryland (1963) 373 U.S. 83......ssssssssssseeseeteeseeees85 Bullcoming v. New Mexico (2011) 131 S.Ct. 2705...in passim Chapmanv. California (1967) 386 U.S. 18.0.0...eeeeeseeesin passim Crawford v. Washington (2004) 541 U.S. 36...seersin passim Davis v. Washington (2006) 547 U.S. 813.0...cesses103 District Attorney’s Office for the Third Administrative District v. Osborne (2009) 557 U.S. 52............98 Doggett v. United States (1992) 525 U.S. 642.0...sesso12-14, 38 Estelle v. McGuire (1991) 502 U.S. 62........csccsseeeeesereeteeteeenees71, 138 Gamachev. California (2010) 131 S. Ct. 591...eeeeeteeeees72, 140 Kyles v. Whitley (1995) 514 U.S. 419... eeeeeeseeeseeeeeneenenees 89, 99 Melendez-Diaz v. Massechusetts (2009) 557 U.S. 305.............in passim Riggins v. Nevada (1992) 504 U.S. 127.0...sseseseseeseseseseeneees72 United States v. Agurs (1976) 427 US. 97.....ccssseseteseeeetereees 85 United States v. Bagley (1985) 473 U.S. 667......cseseenesetees85, 95 (ix) United States v. Lovasco (1973) 431 U.S. 783.0... ee eeeeeeeeeeees4 United States v. Marion (1971) 404 U.S. 307.0...eee eeeeeeeee 5 Victor v. Nebraska (1994) 511 U.S. Looecceeeeeseeeeeeeeeeeeeeeee71, 139 Williamsv. Illinois (2012) 132 S.Ct6. 221...eeeeeeeeeeeeein passim Yates v. Evatt (1991) 500 U.S. 391ecseteeeeeneneeneees71, 138 Other Case Authority Brownv. Farwell (9 Cir 2008) 525 F.3d 787.........ccccccsseeeees 115 In re Brown (1998) 17 Cal.Ath 873.000.ssceseeeeesesseeeseeeees88 In re Deborah C. (1981) 30 Cal.3d 125.0...eeeeeeeeseeeeeeees 89 In re Steele (2004) 32 Cal.4th 682.0000...eeeeeeecceeeeereresnerenees92, 93 People v. Abel (2012) 53 Cal4th 891eeeeeeeeseneeseeeeens 5, 28, 29 People v. Abilez (2007) 41 Cal.4th 472.00... eccccsessessestereees44,45, 67 People v. Adcox (1988) 47 Cal.3d 207.0...cece ceeeeseeeseseeeneeeeee 131 People v. Archerd (1970) 3 Cal.3d 615.0...eeecssesseeeetseeeees 5, 8 People v. Avena (1996) 13 Cal.4th 394.00ecseeeteeeeeee 149 People v. Avila (2006) 38 Cal.4th491ceeeeeeeeees84, 97 People v. Barney (1992) 8 CalApp.4th 798.000...cece eeeeeeees 120 People v. Blair (2005) 36 Cal.4th 686.000...cesseseeeseeteceesees 123 People v. Belton (1992) 7 Cal.4th 414.eeecseeeeseeees29, 30 (x) People v. Booker (2011) 51 Cal-4th 141... eeeeeeeeeeetetenes48, 53 People v. Boyd (1985) 38 Cal.3d 762..........:sssssseseseseeereeenens 102 People v. Boysen (2007) 165 Cal.App.4th 761...8, 34-37 People v. Burns (1987) 189 Cal.App.3d 734........:sssecsseeseeesees64 People v. Caitlin (2001) 26 Cal4th 81.0.0... eeeessseteeeeesesnteees in passim People v. Cowan (2010) 50 Cal4th 401.0... sesesseeetstentenees5, 31, 32, 33 People v. Cua (2011) 191 Cal.App. APD S82. eeceeceeeeesteeeeseseeees 115, 116, 121 People v. Dungo (2012) 55 Cal4th 608.........:sssesesseeseseteneees in passim People v. Dunn-Gonzalez (1996) 47 Cal.App.4th 899.............. 8, 20, 25, 40 People v. Earle (2009) 172 Cal-App.4th 372.........ssssssseserees57 People v. Edwards (1991) 54 Cal.3d 767.......::sssssssessessseeereees 124, 129 People v. Escudero (2010) 183 Cal.App.4th 302........:-sseeee44 People v. Ewoldt (1994) 7 Cal4th 380..........ssssecessseeseseeeetees74, 75, 76 People v. Falsetta (1999) 21 Cal.4th 903.........:sssscssssseessesenseees42. 43.45, 52, 70 People v. Fitch (1997) 55 CalApp.4th 172.......:ssssssessssescsetees49 People v. Hollie (2010) 180 Cal.App. 4% 302...44 People v. Hannon (1977) 19 Cal.3d 558........:cssseseessessssseneetees 12, 15 People v. Harris (1998) 60 Cal.App.4th 727.........scssseseeeeeees45, 50, 51, 63-66 (xi) People v. Horning (2004) 34 Cal.4th 71........:cscssssseeeseereeeees in passim People v. Jackson (2014) 58 Cal4th 724.........cesesseesseseesseeees71, 72, 139 People v. Jantres (2014) 226 CalApp.4th 340........ccccesseeeeeees54-58 People v. Jennings (2010) 50 Cal.4th 616...........cssessseeeeneees 105 People v. Johnson (2006) 139 Cal.App.4th 1135.0...eee115 People v. Jones (2012) 54 Cal4th Lo... eeeessesteseeeeeseseneenees59, 60 People v Lewis (2009) 46 Cal.4th 1255.00... cceseessseeeeeseeeeees60 People v. Lewis (2006) 39 Cal.4th 970..........cccscssessessesseeseeenens 129 People v. Loker (2008) 44 Cal.4th 691.000... cesesssseeeeseseeeeees 147, 148 People v. Lopez (2012) 55 cal.4th 569.00... ccessseseseeteteneeees 104 People v. Loy (2011) 52 Cal.4th 46.0.0... cceccssesesreeesreseneneens44, 67, 68 People v. Luttenberger (1990) 50 Cal.3d 1a... ceseceseseseeseees97 People v. Martinez (2000) 22 Cal.4th 750.........:cssesseseeerees8, 12, 21 People v. Memro (1985) 38 Cal.3d 658.........ccssesseeeeteseerceees83, 96 People v. Miller (1990) 50 Cal.3d 954.000... csssseteseeseeeeteeeeeeee76 People v. Miramontes (2010) 189 Cal.App.4th 1085................44, 69 People v. Nelson (2008) 43 Cal4th 1242.00...eeeeeteeeeeeeeesin passim People v. Ngyuen (2010) 184 Cal. App.4th 1096.............ce55 People v. Nicolaus (1991) 54 Cal.3d 551.0... ceceeessereeseneeenees 125, 129 People v. North (1981) 29 Cal.3d 509.0...csssssrecsereesseeeeeenes89 (xii) People v. Osband (1996) 13 Cal4th 622.000...ccssceeeeteeeeeees 129 People v. Pelligrino (1978) 86 Cal.App.3d 776........ccescscseees 8 People v. Ramos (1997) 15 Cal.4th 1133.00.00...ceeeceseeseeseeeee 124, 130 People v. Riggs (2008) 44 Cal.4th 248.00...eeeceseeseeceneeees 125, 129 People v. Robbins (1988) 45 Cal.3d 867.00... :ccsscesscseseereeseees75 People v. Rodriguez (1986) 42 Cal.3d 730...........cccsessecseeeseees 136, 148 People v. Salazar (2005) 35 Cal.4th 1031.0... cceceessereeeenees87 People v. Smith (2005) 35 Cal.4th 334.000... ccseesseeeeseeeeseerens 124,125, 130 People v. Superior Court (Barrett) (2000) 80 Cal.App.4th 1305.....ceecessesscesescessecsesceseeeceeceseesseesescossevscessresesssesersessssneeeees84, 90, 91 People v. Valdez (2012) 55 Cal.4th 82.00.00... cccceeeseeseeeteeneeees 126, 127, 135, 136, 147 People v. Venegas (1998) 18 Cal.4th 47.0.0... ccccsesesetsereteeees 120 People v. Viscotti (1992) 2 Cal4th Loo...cccceeseseeseseeseeeneees 148 People v. Villatoro (2012) 54 Cal.4th 1152.00...cece62, 63 People v. Walker (2006) 139 CalApp.4th 782........ccsseseereeees50 People v. Watson (1956) 46 Cal.2d 818.0000... eeeseseseeneeeennens70 Sacramento v. Drew (1989) 207 Cal.App.3d 1287.........cccecee50 Sargon Enterprises, Inc. V. University of Southern California (2012) 55 Cal4th 747.0... eeeceseesssssseseesesceenseeeesessssseessesseneeees 50 Sennav. Superior Court (1985) 40 Cal.3d 239.000... cee eceeeeeees5 (xiii) United States v. Jenkins (D.C. 2005) 887 A2d 1013.............0 118 STATUTORY AUTHORITIES California Evidence Code Section 352...cccccccececcececsssscceescscscscccceessecssesssneeeeeeseeerenees47,48 Section LLOLcceeeceeeesceeseneeereessneeseeererasesseneesnseenes in passim Section 1108.0...cee eececsecsseeeeereesseeeeeeesseeeeseeeneerserenees in passim California Penal Code Section 1903 .........cceeeceeccceeesseeeeteeesneeneseeeeenesenesensneeesin pasim Section 1054.9......cccccseeesessesecseseeeseeeseeseseeeetsneraesenens92 OTHER AUTHORITIES: CALSIC 8.88.......cccccesccscesceceeseeeseeeeeneenseneenseesseseesecseeneeses 131 Balding, D.J.., When can a DNA profile be regarded as unique?, Science and Justice 1999...118 Biederman,A., et al., Decision theoretic properties of forensic identification: Underlying logic and argumentative implications, Forensic Science International 177 (2008) 120-132.......cesessesesesseeeetesescsesseneeeeteneteenenenes 118 Buckleton,J., and Triggs, C., Relatedness andDNA:are we taking it seriously enough?, Forensic Science International 152 (2005) 115-1119...eeeeseeseeeeseeneees 118 Cole, S., Forensics without uniqueness; conclusions without individualization; a new epistomology of forensic identification, Law, Probability, and Risk (2009) 8, 233-235.....sccccecsecseseeserscseessrcseseneeneneetersneataceeeees 118 (xiv) IN THE SUPREME COURTOF THESTATE OF CALIFORNIA PEOPLE OF THE STATE OF ) §152737 CALIFORNIA ) ) Plaintiff/Respondent ) Contra Costa County ) 040292-5 VS. ) ) ) JOSEPH S. CORDOVA ) ) Defendant/Appellant ) APPELLANT’S REPLY BRIEF An Automatic Appeal from the Judgment ofthe Contra Costa superior Court, Honorable Peter L. Spinetta, Judge. GUILT PHASE ARGUMENTS I. DUE TO THE PERVASIVE NEGLIGENCE AND INDIFFERENCE OF GOVERNMENTAGENTSIN THE INVESTIGATION OF THIS MATTER, APPELLANT WAS NOT CHARGED WITH THE INSTANT CRIMES UNTIL TWENTY-THREE YEARSAFTERITS 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 AMENDMENTSTO THE UNITED STATES CONSTITUTION. A. SUMMARYOFAPPELLANT’S ARGUMENT Cannie Bullock was murdered 23 years before appellant was charged with the crime. From the outset, the investigation of the crime by law enforcement was haphazardly, indifferently, and negligently conducted. Onthe very first day of the investigation, the police were convinced that the crime had to have been committed by one ofLinda Bullock’s acquaintances. In fact, within hours ofthe 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 ofthis information, the police did very little to capture the killer. 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 thetruth. In the days following the murder, Ms. Bullock was uncooperative and underthe influence of some sort of intoxicant. The police did virtually nothing to pierce her silence. Instead of holding Ms. Bullock as a material witness, or arresting her for criminal negligencein Cannie’s death, the police seemed simply give up on herin spite of the fact that they were convinced she held the key to the entire investigation. Soon after the crime, Linda Bullock went into hiding, in an apparent attempt to avoid further inquiries about her daughter’s murder. Thereis no indication that the local authorities ever contacted the Federal BureauofInvestigation of other state authorities to help find her. The police simply gave up. The balanceofthe investigation was equally perfunctory. In spite of the fact that they knew that Ms. Bullock’s circle of friends waslargely limited to the bikers that frequented the local bars of San Pablo,the police did very little canvassing at these establishments in an attempt to identify possible suspects in the murder. Asthe result of an internal conflict within the San Pablo Police Department, the investigation essentially endeda little over a month after it began, with all of the detective work ofthe 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 23 years. Nor was there any indication that any local authority made any attempt to contact any state or federal law enforcement agency for assistance. It was not until 1996 that any attempt was madeto further investigate the case, and eventhen the investigation consisted of creating a 3 very limited DNA profile. The government’s indifference in pursuing the investigation ofthis case caused appellant to suffer prejudice from the loss of material witnesses and evidence, compromisinghis ability to defend himself. The pre- indictment delay of 23 years violated appellant’s right to due process of law pursuantto both the Fifth and Fourteenth Amendmentsto the United States Constitution and the Constitution of the State of California. B. SUMMARYOF RESPONDENT?’S BRIEF ARGUMENT Citing to People v. Nelson (2008) 43 Cal.4th 1242, respondent acknowledgedthat prosecution delay that was both unjustified and prejudicial may infringe upon a defendant’s state and federal due process protections. Respondent maintained that a violation of due process under the United States Constitution must involve a governmental delay that “was undertaken to gain a tactical advantage over the defendant.” (RB p. 40; People v. Caitlin (2001) 26 Cal.4th 81, 105; United States v. Lovasco (1973) 431 U.S. 783, 795.) However, respondentfurther acknowledgedthat California due process protections, in turn, may be infringed upon when the governmentnegligenceor intentional inaction results in a time lapse before charging. (RB p. 40; People v. Nelson (2008) 43 Cal.4th at p. 1255.) Regarding the standard and procedure that the trial court must follow in determining whether a defendant was deprived of hie due processrights 4 by any such delay, a defendant seekingrelief “must first demonstrate resulting prejudice, as by showingthe loss of material or other missing evidence or fading memory causedbylapse oftime.”(RB 41; People v. Abel (2012) 53 Cal.4th 891, 908.) Respondentargued that such prejudice is not presumed. (RB at p. 41; People v. Abel, supra, 53 Cal.4th at pp. 908-909.) Prejudice must be “actual” and it is not demonstrated where defendantrelies upon “possibilities” (RB 41; United States v. Marion (1971) 404 U.S. 307, 326. Norcan prejudice be speculative. (People v. Belton (1992) 6 Cal. 4" 1425, 1433; People v. Archerd (1970) 3 Cal.3d 615, 640.) Respondent further argued that even if prejudice is established the “prosecutor may offer justification for the delay and the court considering of the motion to dismiss must balance the harm to defendant against the justification for the delay.” (RB 41; People v. Catlin, supra, 26 Cal.4th atp. 107.) Ifprejudice is not established the trial court may deny defendant’s motion without inquiry into the cause of delay. (RB 41; Senna v. Superior Court (1985) 40 Cal.3d 239, 249.) Respondent further argued that mere negligent delay requires a greater showing ofprejudice than a purposeful delay. (RB 42; People v. Cowan (2010) 50 Cal.4th 401, 431.) Regarding the instant case, respondent specifically argued that appellant based his claim on this sort of speculation in that there was “no 5 showingthat any people cited as potential defense witnesses would have cooperated and offered helpful evidence. “ (RB 43 ) Into this category of potential “speculative” witnesses, respondent placed the Bullock neighbors (RB at p.43-45), relatives of third party suspect Flores (RB atp. 45), the medical staff attending at the time of Flores death (RB at p. 46), and Linda Bullock’s social contacts. (RB at pp. 46-47.) In addition, respondent arguedthat any prejudice from lost penalty phase witnesses from appellant’s Viet Nam-era service days, as well as lost military, medical, and educational records is also pure speculation. (RB at p. 47.) In addition, respondent disagreed with argumentthat appellant was prejudiced by his own faulty memory stating that the record demonstrated that appellant had a good memory ofthe events that transpired as far back as the time of Cannie’s death. (RB at p. 47-48) Respondentalso argued that “the fact that the passage oftime allowed the prosecutor to generate DNA evidence identifying appellant as Cannie’s rapist and killer does not constitute prejudice for due process purposes.” (RB at p. 48; Jn re Chuong D.(2006) 135 Cal.App.4th 1303, 1311.) In addition, respondent argued that “even ifthere was some minimal 6 prejudice accruedasa result ofthe delay, the prosecutionborelittle if any burdenofjustification” in that the delay wasneither intentional nor negligent, but rather an “investigational” delay. (RB at p. 48-49.) To support these arguments, respondentcited People v. Nelson, supra, 43 Cal. 4" at p. 1256, a case where it took 26 years to solve a crime because the state ofDNA science was not sufficiently developed to make an identification until that long after the crime. (RB at p. 49.) Respondent also argued that the police investigation into Cannie’s murder “was hampered by her mother’s drug and alcohol and attempts to evade contact with investigators.” (RB at p. 50.) Respondentalso justified the delay by citing to the same manpowershortage in the San Pablo Police Department that was referenced in Appellant’s Opening Brief. (AOB at pp. 54-55.) Respondentfurther argued that once new DNAtechnology became available, “law enforcement responded promptly and aggressively.” (RB at p. 51.) Respondent closed its argument by stating that any showing of prejudice did not outweigh the justification for delay. (RB at p. 52-53.) C. APPELLANT’S REPLY ARGUMENT 1. Introduction Respondent’s general exposition of the controlling law was correct. In People v. Catlin, supra, 26 Cal.4th at p. 107, this Court stated that a defendant seeking to dismiss an indictment on speedytrial/due process 7 grounds must demonstrate prejudice arising from the delay. After a showing ofprejudice has been made, the prosecutor mayoffer a justification for the delay; the trial court then balances the harm to the defendant against the reasonsfor the delay. (See People v. Nelson, supra, 43 Cal.4th at p. 1250; People v. Archerd, supra, 3 Cal.3d at pp. 639-632; People v. Pellegrino (1978) 86 Cal.App.3d 776, 779-781.) The defendant has the burden to “affirmatively demonstrate that the delay (whether undereither the speedy trial or due process rationale) has prejudicedhis ability to defend against the charge.” (People v. Martinez (2000) 22 Cal.4th 750, 766.) In a broad sensethetrial court’s task “is to determine whether pre- charging delay violates the fundamental conceptions ofjustice whichlie at the base of ourcivil and political institutions and which define the community’s sense of fair play and decency.” (People v. Boysen (2007) 165 Cal.App.4th 761, 777; People v. Dunn-Gonzalez (1996) 47 Cal.App.4th 899, 914.) It is true that prosecutors are under no obligation to file charges as soon as probable cause exists but before they are satisfied that they can prove the case beyond a reasonable doubt. (People v. Dunn-Gonzalez, supra, 47 Cal.App.4th at p. 915) However, if defendant has met his burden of showing that delay in prosecution has caused a defendant prejudice, the trial court must balance the harm to the defendant againstthe justification 8 for the delay. The facts and circumstances must be viewed in light of (1) time involved, (2) who causedthe delay, (3) the purposeful aspect ofthe delay, (4) prejudice to the defendant, and (5) waiver by the defendant. (Ud. at p. 911.) This balancing task is “a delicate one,” and “a minimal showing ofprejudice may require dismissalifthe proffered justification for delayis insubstantial. The more reasonable the delay, the more prejudice the defense has to show to require dismissal.” (/d. at p. 915.) Thefirst part of respondent’s argument was that regardless of any paucity ofthe police investigation or their indifference to solving the crime, appellant was unable to prove any “specific” prejudice from the 23 year delay. (RB at pp. 42- 48) Appellant also strongly disagrees with thetrial court’s holding that evenifthe police were negligent by failure to properly conduct the investigation, it was “pure speculation”that had the investigation been done properly, it would haveled to an arrest or identification of a suspect. (7 RT 1524-1525.) As will be show below, respondent’s argumentflies in the face of commonsense andthespirit of the law. The second part ofrespondent’s argument was that the delay in charging wasjustified. (RB at pp. 48-52.) Appellant again agrees neither with respondent’s analysis nor with the ruling ofthe trial court which stated that it did not believe that a showing ofnegligence had been made,yet at 9 the sametimestated that it was not clear whether ornot the police failed to properly follow up on leads. (7 RT 1524.) As will be shown,theinitial police investigation in this matter was more than just negligent or improperly conducted.Instead, it was characterized by inexcusable indifference constituting an intentional disregard for solving the case. Considering the grave natureofthe charges, and the fact that the perpetrator of this egregious crime had not been apprehended,the police simply gave up on the investigation within a very short time of the crime. They knew from the outset that the victim’s mother, Linda Bullock, held the key to solving the crime, but instead ofusing all of the legitimate meansat their disposal to compel Ms. Bullock’s cooperation, they simply accepted Ms. Bullock’s post-crimestate of intoxication and refusal to cooperate. The wholly inadequate police investigation was so intertwined with the true prejudice suffered by defendant, appellant’s responseto all of respondent’s argumentswill be containedin the following unified rebuttal argument. 2. The Government’s Intentional Lack of Interest in Investigating this Case Caused a 23 Year Delay in Prosecution that Made the Showing of “Particularized” Prejudice Both Impossible and Unnecessary Respondent’s chief argument is that appellantis not entitled to due process relief because he failed to state any specific prejudice he suffered 10 because ofthe delay of 23 years. It similarly argued that the claims of prejudice appellant did make were “speculation.” (ARB at p. 6.) Respondent’s argumentdefiesthe reality of the natural effect of the passage oftwenty-three years on human memory.There is nothing at all speculative about what the passage of almost a quarter of a century doesto the ability to investigate and defend against a capital charge such as this. Respondent’s contention that there was no proofthat the witnesses referenced in the AOB could have produced any evidence beneficial for the defenseis, itself, the speculation as to the issue ofprejudice The respondent’s argument also makesan artificial and counterintuitive distinction between cases where the content ofthe missing evidence is known and those whereit is not. Respondent essentially argued that prejudice can only be shown if law enforcement authorities did sufficient investigation so a lost witness or a lost piece of evidence could be specifically identified. However, conversely, if the investigation was so incomplete or nonexistent that such an investigation becomes impossible, no prejudice can be shown. Respondent’s argument, therefore, would reward laziness and badfaith on the part ofthestate. In addition to defying commonsense, respondent’s position is not supported by the law. Respondent completely failed to recognize the legal relationship between the length of the prosecutor’s delay in bringing the 1] charges and the degree ofparticularization of prejudice required by the defense. Delays in prosecution far less shorter than seen in this case create situations in whichthe articulation ofthe precise prejudice impossible becausethe precise effect of this prejudice can no longer be ascertained. This Court recognized this in People v. Horning (2004) 34 Cal.4th 871, a case not cited by respondent. Horning fully recognized that the longer the delay in prosecution, the harderit is for a defendantto “particularize” prejudice with specific allegations. “[A]ffirmative proof of particularized prejudice is not essential to every speedytrial claim, because excessive delay presumptively compromisesthereliability of a trial in ways that neither party can prove,or for that matter, identify.”' (Id at 893.) Further, this Court, citing to Doggett v. United States (1992) 505 U.S. 642, 651-652, made clear that the “presumption ofpre-trial delay has prejudiced the accusedintensified over the time.” (Horning, supra, 34 Cal.4th atp. 893.) Doggett was a speedytrial case in which 8 4 years had passed from defendant’s indictment in federal district court to his arrest.’ The High 1. Appellant cited to Horning for this point in his AOB.(AOBatp. 49.) Respondent did not respondtothis citation in its Brief. 2. Both Horning and Doggett were post-charging delay speedy trial cases, but the logic is the samein a pre-accusational due process case as in the instant case. Further, as stated in People v. Hannon (1977) 19 Cal.3d 588, 604- 12 Court called this 8 % year period “extraordinary”andheld that the governments delay in proceeding with case caused a violation in defendant’s tight to a speedy trial under the United States Constitution. In February 1980, Doggett was indicted for conspiracy to distribute cocaine. (Doggett v. United States, supra, 505 U.S.at p. 648.) Government agents promptly went to Doggett’s house to arrest him but discoveredthat, Doggett, unaware of any charges pending against him,hadleft the country. (Id. at pp 647-648.) Agents made plans through a computer program to locate Doggett on his return to the United States. However, the police allowed the computer entry bearing Doggett’s nameto expire leaving no computerized record of his wanted status. (/bid.) In September 1981, the government located Doggett in Panama, where he was underarrest for another crime. U.S. agents requested that Panama“expel” him to the United States. (Doggett, supra, 505 U.S.at p. 649) However, Panama released Doggett, who returned to the United States and settled into a crime free family life. ([bid.) Evidence revealed that after his unhindered return to the United States in 1982, the government wasat times aware ofDoggett’s whereabouts, especially when hetraveled 605, 607, the California Constitution does not distinguish betweenpre- charging and post charging delays and the same balancing test is the same for both. (See also People v. Martinez, supra, 22 Cal.4th at p. 766.) 13 overseas. No attempt was madeto apprehend him until 1988, when the Marshal’s Service ran a routine credit check on several thousand people subject to warrants. Doggett’s name, address, and place of employment cameup in a matter ofminutes leadingto his arrest. Ud. at pp. 649-650.) Accepting the recommendations of the magistrate, the district court found that while the delay in prosecution was “clearly attributable to the negligence ofthe government,” Doggett had madeno “affirmative showing” that the delay “had impairedhis ability to mount a successful defense or otherwise prejudiced him.” Therefore, the district court denied Doggett’s motion to dismiss the case against him for a violation of the speedytrial provisionsofthe Fifth Amendment. (Doggett v. United States, supra, 505 USS.at p. 650.) The court of appeals affirmed. However, the United States Supreme Court overruled the decision of the court of appeals. It rejected the government’s claim that Doggett’s claim was defeated by the failure to identify particularized prejudice. Instead, the Court held that after a lengthy delay in prosecution created by the prosecutor’s negligence, the delay becomes “presumptively prejudicial”? without additional showing of any specific prejudice. (Doggett v. United 3. The term “presumptively prejudicial” has been defined as the prejudice needed to trigger the balancing test ofprejudice against the reasons for the delay to determine if defendant’s due process or speedytrial right(s) have been violated. (People v. Horning, supra, 34 Cal.4th at p. 892.) 14 States, supra, 505 U.S.at p. 652.) The High Court held that though Doggett was unable to demonstrate any specific prejudice, the “extraordinary” delay of 8 %4 years between indictment and arrest had an innately prejudicial effect on Doggett’s ability to prepare his case and, further, diminishedhis memory and that of other witnesses. (/d. at p. 654.) The High Court held that a delay ofthis length created a situation in which the fairness ofthe entire system was “skewed”against a defendant. ([bid.) The Court specifically acknowledged that the most serious form of prejudice that a defendant can suffer because of prosecutorial delay is the possiblity that the accused’s defense will be impaired by dimming memories or loss of exculpatory evidence. (Ibid.; see Barker v. Wingo (1972) 407 U.S. 514, 532.) The Court then concludedbystating Betweendiligent prosecution and bad faith delay, official negligence in bringing an accusedtotrial occupies the middle ground. While not compellingrelief in every case where bad faith delay would makereliefvirtually automatic, neitheris negligence automatically tolerable because the accused cannot demonstrate exactly how it has prejudiced him.It was on this point that the Court ofAppeal erred, and on the facts before us it was reversible error. (/d. at p. 657) Because People v. Hannon, supra, 19 Cal.3d at 607 madeit clear that California law applied the same standards to speedy trial/due process questions both pre- and post- charging, Doggett’s analysis applies to the 15 instant case. While a lengthy delay doesn’t necessarily compel reveal ofthe conviction, neitheris its effect rendered mootby a failure to cite to “particularized ” prejudice, especially after a delay of 23 years, as in the instant case. Even ifwas true that appellant was unable to state with particularity the specific prejudice he suffered by the unreasonable and inexcusable delay, under the above law and the commonsensethat spawnedit, such a showing was not necessary. Asstated both above and in the Appellant’s Opening Brief, the delay in prosecution was not a function of the lack of scientific methodology. Although the development of such methodology ultimately caused the prosecution to commence, the reason for delay was governmental difference and neglect. The police almost immediately reachedthe conclusion that Linda Bullock knew whokilled her daughter, or at very least possessed information that could lead to Cannie’s killer. In spite of this, she was allowed to simply disappear. Her “social contacts” went largely uninvestigated, or disappeared with her. This was a classic case which had to be acted upon quickly and with sufficient manpowerto putinto effect all police strategies, such as the use of informants, rewards, mass canvassing of all motorcycle and similar type outlaw gangs, and perhaps most importantly, the type of interdepartmental 16 cooperation that is essential to solving cases such asthis one. Instead, the agents ofthe government contented themselves to impose the most cavalier restrictions on both the scope and depth oftheir investigation, leaving justice in the hands of Cannie’s criminally incompetent mother and a dysfunctional small town police department. The lack of results of this incomprehensibly weak investigation of such a grievous crime wasutterly predictable. Further, the responsibility for this wholly unsurprising lack of results must fall completely upon the government, which in 1979 deliberately chose to invest so little of its resources and time into this crime. The investigation was essentially terminated not long after it began, whenthe 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 was so great that it was several years before the San Pablo Police even followed up with the Sheriff, only to be told nothing had been done. (7 RT 1513.) There was utterly no showing that any effort was madeto investigate this case after the San Pablo Police Department washedits handsofit. Respondent’s attempt to justify such indifference and neglect by citing a short-handedlocal department constituted a misapprehension as to how law enforcement should, and usually behaves in cases such as this. Respondent, 17 being a critical part of the law enforcementprocess, is fully aware that an abundanceofassistance is available to local police over-stressed by a complicated investigation requiring more resources than available to them. At no point did respondentever explain why the police did not contact the federal agencies such as the Federal Bureau ofInvestigation, the Drug Enforcement Agency, or the Bureau ofAlcohol Tobacco and Firearms, all whom hadfar greater resources andfar greater contacts, especially concerning the very type of outlaw people implicatedin this case. These agencieshad accessto the type ofundercover agents and informants that were necessary to solvethis type of crime. Nowhere in respondent’s brief, nor in the reporter’s transcript, was there any indication as to why such help wasnot soughtby local authorities. While appellantis reluctant to speculate as to why law enforcement chose to take such an indifferent approach to the death of an eight-year-old girl, the following does not require speculation. Cannie’s murder received scant attention and even less concerted interdepartmentaleffort to solveit. That was the choice of the prosecutor and his subordinates, alone. They cannot now be allowedto re-write history and say that they did their best and that the delay wasjustifiable. Areas ofprejudice condemnedby respondentfor their lack of specificity (RB at pp 42 et seq) were as specific as appellant could be 18 considering the length ofthe governmentcreated delay and the dearth of substantive investigation by those who should have been responsible for gathering the evidence appellant is now faulted for not having. Doggett is this controlling case as to the issue of the specificity ofprejudice that defendant must set forth. Twenty-three years passed from the time of the murderto the time of appellant’s arrest, almost three times the delay found constitutionally unacceptable in Doggett. Unless a crime took placeat the exact time defendant could conclusively establish an alibi with official records (incarceration, serving overseas, etc), it is impossible to establish an alibi after almost a quarter of a century. Respondent’s claim that appellant remembered what he was doing around the general period of the crime (RB at pp. 47-48) does not mean that appellant could possibly remember exactly where he was during the few minutes ofthe actual commission of the crime. More importantly, it certainly does not mean that any possible alibi witnesses would have any memory ofthat timeatall. Further, the passage of such a lengthy period oftime that he was incarcerated makesit absolutely impossible for the defense team to properly investigate what the police should have investigated 23 years before. The defense could not possible reconstruct the disreputable cast of characters that surrounded Linda Bullock nor the nomadic biker gangs who 19 intimidated her into silence. After such a period oftime, there people may as well have never existed. Even if by sometwist of fate, the defense team could turn up one or more ofthese people, it would probably be impossible to place them in San Pabloat the time of the crime, let alone at the scene of the crime. This sort of investigation should have been done by the government, in 1979, not by a defense investigator 23 years after the fact. (People v. Dunn-Gonzalez, supra, 47 Cal.App.4th at p. 915) Because appellant met his burden of showing that delay in prosecution has caused him prejudice, the trial court must balance the harm to the defendant against the justification for the delay. The facts and circumstances must be viewedin light of (1) time involved, (2) who caused the delay, (3) the purposeful aspect ofthe delay, (4) prejudice to the defendant, and (5) waiver by the defendant. (People v. Dunn-Gonzalez, supra, 47 Cal.App.4th at p. 915) All of these factors favor appellant’s claim. The delay in prosecution spanned 23 years and was causedsolely by governmental indifference. This indifference was purposeful in the sense that a conscious decision was made by governmental authorities not to press the investigation in spite of fact that the police had a good idea how and where they could find their suspect. As stated above, the prejudice to appellant was manifest, and the delay was in no way waived by him. 20 3. The Cases Cited By Respondentin Its Brief Were Unavailing to Its Argument Due to Their Factual Dissimilarity to the Instant Case In its Brief, respondent claimed that People v. Nelson, supra, 43 Cal.4th 1242 “controll(ed)” the instant fact situation. On the surface, the facts ofNelson bear somefacial similarity to the instant case, but in their most relevant aspect are fundamentally distinguishable in both the nature of the prejudice andreason for the delay. On February 23, 1976, Ollie George a 19 yearold college student, disappeared after having car trouble at a local shopping center in Sacramento.(Id. at pp. 1247-1248.) Twodayslater, her body was found in a remote Sacramento County location. She had been raped and drownedin mud.(Id. at p. 1248.) In early March ofthe same year, defendant wasinterviewed by the police. While he gave a “confused account”ofhis activities at the time of the murder, the police did not have sufficient evidence with which to accuse him ofthe crime. (People v. Nelson, supra, 43 Cal.4th at p. 1248.) However,the police fielded “hundredsoftips,” and “interviewed over 180 potential witnesses” (Jbid.) Further, the police followed up on otherleads, but wereultimately unable to focus the investigation on any single suspect. (Ibid.) After exhaustingall other alternatives, the authorities ultimately left the case open but “inactive.” (/bid.) 21 The Nelson case wasultimately solved in the same manneras the instant case. (People v. Nelson, supra, 43 Cal.4th at p. 1248.) In the years following the murder ofMs. George, Nelson had been convicted of crimes and was imprisonedin the state prison system for a lengthy period oftime. Asin the instant case, while Nelson was in prison a DNA sample was taken from defendant and entered into the inmate data bank. (/bid.) In 2001, a DNA match was madeofa latent semen stain found on Ms. George’s sweater and the known DNAsample taken from defendant. (/d. at pp. 1248- 1249.) Based primarily on this DNA testing, Nelson was convicted ofMs. George’s rape and murder. (/d. at 1249.) This Court in Nelson stated that the delay in that case was completely justified in that it was only after the DNA comparison wasthere sufficient cause to bring charges against Nelson. (People v. Nelson, supra, 43 Cal.4th at p. 1256.) This Court held that the due process clause does not permit courts to abort criminal prosecutions simply because they disagree with the prosecutor’s judgment as to when to seek an indictment,...A prosecutor abides by elementary fair play and decency by refusing to seek an indictmentuntil he or she is completely satisfied that the defend ant should be prosecuted and the office of the prosecutor will be able to promptly establish guilt beyond a reasonable doubt. (/bid.) Appellant disputes none of this. This Court’s holding in Nelson protects both the public and the accused against rushed and hasty 22 prosecutorial decisions. As stated in Nelson, such a delay is “not so one- sided,” but protective ofthe interests of all. (People v. Nelson, supra, 43 Cal. 4" at p. 1256.) However,the fact that Nelson and this case both involve “cold case” hits almost a quarter of a century after the crime does not mean that Nelson justifies the sort of truly one-sided delay ofthe instant case. Thecritical difference between the two casesresides in the nature of the pre-DNA match investigation in each case. In Nelson, the police did everything within their powerto solve the case. They followed up on hundredsoftips, interviewed over 180 witnesses, and followed any numberofleads until they could go no further. There was no sign of police indifference or lack of effort. Further, there was no indication that the police were presented with substantial leads that they did not pursue, or had developed theories that were not fully examined with the tools available to them in 1976. Asstated above, this was definitely not the situation in the instant case. According to the police, they were convinced from the outset that Ms. Bullock knew much more than she wasstating. They knew that their suspect was in Ms. Bullock’s “social circle” and likely one ofher male sexual partners. Yet, as also stated, there was nothing that even resembled the type of investigation performed by the police in the Nelson investigation. 23 The other cases cited by respondentto arguethat appellant’s claim of prejudice was speculative were also factually dissimilar to the instant case in both the nature of the prejudice suffered and the length ofthe delay. They do not support the argument urged by respondentthat appellant is not entitled to relief either because he did not demonstrate that he suffered any prejudice or that the police were not responsible for the delay. People v. Catlin, supra, 26 Cal.4th 81, was used by respondentto argue that no prejudice can be shown in the instant case because of appellant’s inability to show that witnesses named would have beenable to provide material evidence. (See RB at p. 44.) However, a close inspection of the underlying facts of Catlin demonstrate why its precedential value in this case in extremely limited. In Catlin, defendant’s fourth wife, Joyce, died in 1976 of gross pulmonary thrombosis. While paraquat poisoning was considered as the cause ofthis thrombosis, the state ofmedical testing in 1976 did not allow for accurate detection ofthis particular poison. (People v. Catlin, supra, 26 Cal.4th at p. 99.) Six years later, defendant’s mother died ofpoisoning as well. (Id. at pp. 101-102.) By 1982, the state of forensic testing allowed for the isolation ofparaquat in the human body. (/d. at p. 102.) In addition, unlike in the death of Joyce Catlin, not only was there evidence ofthe use ofparaquat, but there was other evidencethat defendanthad the motivation 24 and intent to kill his mother. (/bid.) Defendant wasarrested in 1985, for the murder of both of Joyce and his mother. At a pre-trial motion, defendant moved that the murder charge for the death of Joyce Catlin be dismissed because the nine year delay between the murder and formal chargesit was a violation ofthe due process clause ofboth the state and federal constitution. (/d. at p. 106.) Defendant’s claim of prejudice rested chiefly upon the argumentthat two ofthe persons that who attended Joyce’s autopsy in 1976 (a pathologist and a coroner’s employee) had died before charges were ultimately brought against Catlin nine years later. (People v. Catlin, supra, 26 Cal.4th at p. 108.) However, there was no evidence presented thateither of these gentlemen would have provided any relevant defense testimonyatthetrial. Further, defendant claimedthatthe loss of certain tissue samples taken from Joyce at the autopsy had been lost. However, once again, defendant was not able to articulate how the preservationofthis tissue would have aided defendant as there was uncontested evidenceatthe trial that defendant’s thrombosis could only have been caused by paraquat poisoning (/d. atp. 109.) This Court held that there was nothing in the testimony ofthese witnesses that could have disputed this. (Ibid, see also People v. Dunn- Gonzalez, supra, 47 Cal.App.4th at pp. 915-916.) Unlike in the instant case, the claim in Catlin rested on the 25 unavailability oftwo specific witnesses and the loss ofa particular tissue sample. It was decisively proven that neither the witness nor tissue absence wasat all relevantto the case, therefore the length of the delay, andits usually inherent prejudice, wasirrelevant. Further, as Catlin had almost constant access to his victims, the importance of an alibi as to his whereabouts at the time of the murders was slight, unlike in the instant case. Nor wasthere any indication that the police in Catlin failed to doa properinitial investigation of the charges. While the facts ofHorning did notresult in relief to the defendant, they bear review onthe issue of the impact of the length of delay, especially in the absence of “particularized prejudice.” In September, 1990, the dismembered body of Sammy McCullough was found in the San Joaquin River Delta. (People v. Horning, supra, 34 Cal.4th 879.) In December of the same year, the District Attorney of San Joaquin County filed a complaint charging defendant with Mr. McCullough’s murder. (/d. at p. 890.) In March of 1991, defendant was arrested in Arizona on other charges ofwhich he was convicted and sentenced to four consecutive life sentences. (/bid.) However, in May 1992, defendant escaped from Arizonastate prison and committed several more crimes.(/bid.) This escapetriggered a review ofstatus of defendant’s case by the San Joaquin District Attorney who decidedto extradite defendant on a 26 charge of capital murder in May 1993. (People v. Horning, supra, 34 Cal.4th at p. 891.) Defendant claimed that the two and one-halfyear delay betweenthefiling ofthe original complaint and his May 1993 arraignment violated his speedytrial rights. ({bid.) In addition to strongly questioning exactly when defendant’s speedy trial rights were triggered, this Court indicated that a goodpart ofthe delay in formally charging defendant was that he was in hiding, with the governmentbeing responsible for perhaps a year ofthe delay. (People v. Horning, supra, 34 Cal.4th at pp. 892-893.) Further in comparison with the 8 %4 year delay in Doggett, this Court held that the relatively short delay in this case tookit out of the realm of the “presumptively prejudicial” delay of Doggett, especially whenthe delay was in large part caused by defendant himself. In drawinga distinction between the 8 % year delay in Doggett, and the muchshorter delay in Horning, the Horning Court clearly imparted a central truth aboutthe instant case. A delay of over a quarter-of- a- century is a very, very long time, and a claim that there wasnoprejudice unlessit can be specifically shown is a very difficult claim to maintain. Thisis especially true in the instant case where after the passage of so muchtimeit is simply absurd to expect a defendant to be able to rememberhe was for the very short time period it took to committhe crime. 27 In its Brief, respondentalso cited to People v. Able (2012) 53 Cal.4th 891 to stand for its argument that appellant failed to demonstrate that the delay in prosecution resulted in prejudice such as the loss of a material witness or other missing evidence, or fading memory caused by lapse oftime.(Id. at p. 908; RB at p. 41.) However, once again,the facts of Abelstrongly limited its value as precedentin the instantcase. OnJanuary 4, 1991, in the City of Tustin, Armando Miller was robbed of a substantial amount ofmoney andshot to death in front of the Sunwest Bank. (People v. Abel, supra, 53 Cal.4th at 898.) For over two years there were absolutely no leads. (/d. at p. 899.) However, on August3, 1993, the police received an anonymoustip that defendant wasthe killer. This tip caused the case to be re-opened. Overthe nextyear, the police attempted to corroborate the information given by the tipster. (Jbid.) In May 1995, the authorities decided that there was enough evidence to charge defendant with capital murder. (/bid.) Defendant moved for a dismissal ofthe case on due process grounds, claiming the delay caused him prejudice thorough his own loss ofmemory and the loss ofmemory an alibi witness. (People v. Abel, supra, 53 Cal.4th at p. 909.) Defendant claimed he was working as a mortgage agentat the time ofthe killing was in another city at time of killing. bid.) He claimed that he was with a client, Elaine Tribble that day, and had delivered 28 mortgage documentsto her. (/bid.) However, there was no evidence that Ms. Tribble’s memory of such an event would have been better if there were no delay. To the contrary, she stated that she could not rememberif any mortgage papers had ever been returned to her and, in any event, she would not have kept them. Further, the pre-trial evidence madeit clear that defendant had an excellent memory ofwhat happened on January 4, 1991. (People v. Abel, supra, 53 Cal.4th at p. 909.) Therefore the trial court was correct in holding that defendant failed to meet its initial burden of showing somesort ofprejudice, and certainly the length of the delay, if there was one, was insufficient to trigger a Doggett presumption.(/d. at pp. 910-911.) The facts ofAbel have no meaningful similarities to those ofthe instant case. Not only was the delay approximately one-tenth the length of the delay in the instant case, but defendant’s claim of prejudice in Abel, as was the case in Catlin and Horning, was based upon a very specific set of facts that were found to be incorrect. Respondent similarly cited to People v. Belton, supra, 6 Cal.App.4th 1425 to support its contention that the 23 year delay in the instant case did not create a due process violation. (RB at p.41.) However, once again, the facts ofrespondent’s cited case bear little or no resemblance with those of appellant’s case. In Belton, defendant was an inmate in 29 Pelican Bay State Prison when a homemade weapon was discovered in his possession.(Id. at p. 1428.) Seven monthslater, a information wasfiled in Del Norte Superior Court. (Jbid.) Defendant movedto dismiss the information on the ground that they delay between the crime and the information inuredto his prejudice. (/d. at p. 1434.) Defendant claimed that there were various witness who might support his accountthat the weapon in question was plantedin his legal papers by his cellmate. (People v. Belton, supra, 6 Cal.App.4th at p. 1141.) Thetrial court found both a lack of prejudice in that defendant’s investigator never eventried to find these witnesses, and there really was no delay to speak of considering the fact that 60-80 criminal files cameto the small Del Norte District Attorney’s Office from Pelican Bay every week, and faster processing just wasnot possible. (Ibid.) Again, these facts have absolutely nothing in common with the facts of the instant case. The “delay,” was a matter ofmonths, not 23 years. In addition, the clam of prejudice was completely unsupported, either by the passage oftime or any “narticularized” claim. Respondent’s citations to other cases to stand for the argument that the Catlin balancing test clearly mandated the denial of the Motionto Dismiss were similarly unavailing, as the facts of these cases were also so dissimilar to the instant facts as to have no precedential value. Respondent 30 cited to People v. Cowan, supra, 50 Cal.4th 401 (RB at pp. 50, 52) to stand for the proposition that neither the trial nor reviewing courts should be second guessing or “Monday morning quarterbacking”the prosecutionas to whenit is properto bring formal charges. However, a closer examination of the facts of Cowan, reveal that case to be of no precedential value in this matter. On September4, 1984,the bodies of Clifford and Alma Merck were foundin their burglarized Bakersfield home. (People v. Cowan, supra, 50 Cal.4th at p. 415.) By 1985, law enforcement agents had gathered evidence linking several items ofproperty stolen from the Merck hometo defendant. (Id. at p. 428.) However, an extensive fingerprint analysis of latent prints found in Merck home cameup negative for defendant’s prints. Ibid.) In late 1985 or early 1986, a Bakersfield Police detective presented the case to the Kern County District Attorney. (People v. Cowan, supra, 50 Cal,.4th at p. 428.) However, after reviewing thefile, two deputy district attorneystold the detective that they could not issue a complaint without evidencedirectly linking defendant to the murders. ({bid.) In addition,later in 1986 yet a third deputy district attorney opined that there was not enough evidence to take the case to a jury. ([bid.) Some additional investigation was done but by 1987 the case was essentially deactivated because of lack of evidence, including fingerprints, to tie defendantto the killings. (/bid.) 31 In 1994, the authorities tried matching the latent prints found inside the Merck hometo that of certain suspects. This time, a government criminalist was able to match twolatent prints with defendant’s rolled thumb and middle fingerprints. (People v. Cowan, supra, 50 Cal.4th at pp. 428-429.) The case wasthen re-presented to the District Attorney, who now decided that there was sufficient evidence to arrest and charge defendant. (Ud. at p. 429.) Atthe pre-trial hearing to dismiss, defendant claimed that because of the ten year delay between the murders andhis arrest it was impossible for him to recall where he was and who he waswith at the time of the murder. (People v. Cowan, supra, 50 Cal.4th at p. 427.) Thetrial court denied the motion to dismiss. It found that it could find no conductby the authorities that caused the delay. The court stated that the delay wasattributable to an inadvertent failure in 1984 to match the latent prints to defendant’s rolled prints. (7d. at p. 429.) Thetrial court also held that as late as 1987, there were several people under investigation for the crime but without the fingerprint match, there was not enough evidence to proceed against any of them. (/bid.) Using the Catlin balancing protocol, this Court found the showing of prejudice “relatively weak.” (People v. Cowan, supra, 50 Cal.4th at p. 431.) It rejected the defense argumentthat the original fingerprint examiner’s 32 memory had fadedin the past ten years by pointing out that this was irrelevant as both the latent prints and defendant’s rolled prints were available to a defense expert at the time ofthe ultimate changing in 1994 and thetrial in 1996. (/bid.) Regarding defendant’s claim that the delay irreparably damagedhisability to construct an alibi defense, this Court noted that defendant was aware he was a suspect when contacted by the police in early 1985. As such, if defendant had an alibi, it was only logical that he would have attempted to investigate it at that time, only a few monthsafter the murder. (/d. at p. 432.) Regarding his specific claim as to the fading memory of certain witnesses who could attest whetherafter the murderhe possessed the property of the victims, the reviewing court stated that these witnesses gave memorialized statements to the police during the early states of the investigation in 1984 and 1985. (/d. at p. 433.) Regarding the length of the delay, this Court held that this was a situation where after substantial investigation, the prosecution simply did not have enough evidence to go forward totrial with any degree of confidence. (People v. Cowan, supra, 50 Cal.4th at 434-435.) This Court echoed its holding in People v. Nelson, supra, 43 Cal.4th at 1256 stating that “a court should not second-guess the prosecutor’s decision regarding whethersufficient evidence exists to warrant brining charges.” (Cowanatp. 435.) 33 Therefore, combining the weak showing ofprejudice with a very reasonable showingofthe necessity for any investigative delay, this Court affirmedthetrial court’s ruling that the defense was not persuasive in its argument that the Cazlin protocol mandatedthe granting ofits motion to dismiss on due process grounds. (People v. Cowan, supra, 50 Cal.4th at p. 436.) Again, the facts and circumstancesofthe instant case are so different that the cited case has no precedential value. Appellant did not discoverthat he was a suspect until 23 years after the crime, negating any chance for an effective alibi defense. Further, in the instant case, there were no “memorialized” statements to help refresh the recollection of the witnesses that appellant claimed might have helped him,ifthere was no delay. There is a point at which the appellate courts of California no longer acceptthe prosecutors justifying a lengthy delay by contending thatthey were simply not comfortable with the strength of their case. In People v. Boysen (2007) 165 Cal.App.4th 761, there was a 24 year delay between the commission ofthe murder and filing of charges against defendant. On April 6, 1980, the bodies of Elsie and Robert Boysen were foundin their San Diego County home.(/d. at p. 765.) Both had been shotto death with a 9mm semi-automatic handgun. (/d. at p. 766.) Atthe time ofthe murders, the victims’ son David lived with his 34 wife approximately 10 miles from the murder scene. (People v. Boysen, supra, 165 Cal.App.4th at p. 766.) David’s wife initial told the police that both ofthem were homethe night ofthe murders. (/bid.) The police did a thorough investigation of the murder and were able to identify various possible suspects. (/d. at pp. 766-767.) However, they were unable to establish a case against any onein particular. (Jbid.) Continuedpolice investigation revealed that David was having serious financial problems and by the end of 1981, Davud had becomethe focus of the investigation into the murderofthis parents. (People v. Boysen, supra, 165 Cal. App.4th at p.767.) In 1982, the police reinterviewed Linda, whoby then was separated from David. She now stated that David was not with her the entire evening ofthe murder, that she he was gone from 6:00 p.m. to 10:30 p.m. (/d. at p. 768.) When she saw him leave their condo that evening, David was wearing overalls, his favorite T-shirt and brown tennis shoes. Whenhe arrived homeat 10:30 p.m., he was wearing a bathingsuit. Linda stated she never saw the overalls, shirt or tennis shoes again. (/bid.) Lindaalso explained to the police that about two weeks before the murders, David learned that his parents had changedtheir wills to leave their estate to their church, and not to David and his sister, as the wills were originally written. (People v. Boysen, supra, 165 Cal.App. 4" at p. 768.) In addition, Lindatold the police she once caught David srtealing money 35 from his parent’s house. She said that David falsely reported a burglary to the police to cover his crime. bid.) Later in 1982, the police submitted the caseto the district attorney. After a thorough review,the district attorney’s office declined prosecution. (People v. Boysen, supra, 165 Cal.App.4th at p. 768.) It was not until 2004 that the police decided to reopen the case through the newly created San Diego County District Attorney’s Office Cold Case Homicide Unit. (Id. at p. 768-769.) No additional evidence was discovered regarding defendant's culpability, although certain third party suspects were eliminated from consideration as the murderer. (/d. at pp. 769-770.) In May 2004, a complaint was filed against defendant for the murder ofhis parents. Five monthslater, the information wasfiled. (/d. at p. 771.) Defendant subsequently movedfor the dismissal of the charges based uponprejudicial, unjustified preoccupation delay. ({bid.) Thetrial court found that defendant was prejudiced by the delay between the crimes and the commencement of prosecution. After balancing that prejudice againstthe justification for the delay offered by the prosecution,the trial court found the delay denied defendant’s right to due process of law and dismissed the case against him. (Ibid.) The court of appeal affirmed the decision ofthe trial court. While acknowledging the laws general disinclination to instruct the prosecutoras 36 to when to proceed with charging of a case, the court of appealstated “[oJur sense of fair play is offended when, with little or no justification, the government waits decades to bring a prosecution and that delay has demonstrably placed the defense at a profound disadvantage. This is esp- ecially true in cases, like the present one, in which the reasonsfor the prosecutor’s delay cannot be reconstructedby either party.” (Peoplev. Boysen, supra, 165 Cal.App.at p. 774.) The court of appeal agreed with the trial court that defendant had presented “extensive evidence” ofprejudice caused by the delay and further commented that it would be hard to find a case that would not be prejudiced by a twenty-four year delay. (People v. Boysen, supra, 165 Cal.App.4th at p. 778.) The court was able to specifically enumerate several witnesses who were no longer available but police records showed would have made good defense witnesses. (Id. at p-p. 778-780.) The court of appeal also found that the re-opening ofthe investigation in 2004 yielded no evidence connecting defendantto the crime. (/bid.) In summary, noneofthe cases cited by respondent stand for the proposition for which they were cited; that a delay of 23 years caused by governmental indifference and deliberate inaction cannotconstitute a due processviolation unless the defendant can cite to some specific “particularized” prejudice. As indicated in Doggett and Horning, there are 37 certain situations which simply do not lend themselves to such a simplistic analysis in that too much time was allowed to pass by governmentinaction “because excessive delay presumptively compromisesthereliability of a trial in ways that neither party can prove, or for that matter, identify.” (People v. Horning, supra, 34 Cal4th at p. 892.) Further, this Court, citing to the High Court case ofDoggett v. United States (1992) 505 U.S. 642, 651-652, madeclear that the “presumption ofpre-trial delay has prejudiced the accused intensifies over time.” (Horning, supra, 34 Cal.4th at p. 893.) The instant case is precisely one ofthose situations. There is no reason to believe that with a proper investigation, Cannie’s killer would not have been revealedin rather short order. Unlike in cases cited by respondent, the police investigation in the instant case was an investigation in name only. Whenever faced with any sort of impedimentto finding Cannie’s killer, the police gave up. When Ms. Bullock retreated into drugs and alcohol to avoid surrendering what she knew ofthe crime, the policelet her go, unmolested by the pressure that an organized, multi-departmental investigation could have been broughtto bear. Unlike in the casescited, the police in the instant case knew where the answer could be found, yet did madenosincere attempt to discover these answers, never exhausted the leads, nor involve other law enforcement agencies before the trail went cold. Respondent fully admitted that the police investigators believed that 38 killer was known to Cannie and believed Linda was withholding information becauseofherties to the Hell’s Angels, fear of police and continuousstate of intoxication. (RB at p. 35) Yet nowhere did respondent indicate what they did to put any pressure on Ms. Bullock to cooperate. Respondent’s description of the balance ofthe investigation speaks for itself. What respondent called an adequate investigation was anything but. A younggirl was brutally raped and murderedin a small town. Even relying on respondent’s description ofthe investigation, instead of pulling out all of the stops, the search for a suspect was cursory, to be charitable. According to respondent, the investigation consisted of the following.It stated stated the police spoke to “all of the neighbors” but only identified sevenspecific people that were interviewed. (RB at pp. 34-35.) Respondent further stated the authorities took physical samples from Rudy Sandoval and submitted them to crime law but didn’t say why they did so or what type of samples were submitted. (RB at p. 35) The police placed Sandoval in somesort of lineup that was shown to Linda Bullock butdid not indicate what she was asked nor what washerreaction. (/bid.) Respondent also indicatedthat the police “scrutinized” William Flores as a potential suspect but there was no indication what was meantbythis. (/bid.) There was some sort of interview of a bartender, and the person who had brought Linda back to the house from the bar (RB p. 36), but nowherein the record was there 39 any indication what those interviews revealed or what sort of follow up was attempted. This was a non-violent, self reported white-collar crime simply having to wait a few years to befully investigated by an understaffed fraud unit of a local police department. (See People v. Dunn-Gonzalez, supra, 47 Cal.App.4th 899.) The murder in this case instant case was not only a terrible crime, but one which required immediate and intense investigative attention becauseofthe strong possibility that the perpetratoror perpetrators were individuals with no strongties to the San Pabloarea.In solving violent crimes, speedis of the essence. The police had a workable theory. Instead of doggedly following up onit, they lost interest. The governmentaccepted the fact that Linda Bullock didn’t want to cooperate. She was neverarrested for child neglect nor was there any evidencethat the weight ofthe law wasever arrayed againsther. The personnel problemsin the police department does notring as a true excuse. Such a crime had to have been on top of any short list of priority cases. The fact that several officers may haveleft the local police force cannot be considered a legitimate excuse for allowing a child killer to remain at large. There was no indication that the California Department of Justice or the Federal Bureau of Investigation were ever calledin to help. Linda “disappearing”not excuse.It is impossible to believe that this woman 40 could not be foundifthe resources of the state and federal law enforcement had been broughtto bear on a casethat certainly merited the allocation of these resources. Therefore, the extraordinarily long delay in commencing the appellant’s prosecution wasnot, as respondentportrayed it, a function of the need to develop sufficient DNA technology to solve the case. The delay wasa direct result of intentional governmental neglect and indifference as to who killed Cannie Bullock. The government’s delay in commencing the prosecution violated appellant’s right to federal and state due process, and as such, the entire ofjudgment against appellant must be vacated. 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 EVIDENCE RELATING TO APPELLANT’S 1992 AND 1997 CONVICTIONS OF SEXUAL ASSAULT UPONNINAS. AND CURTISB. A. SUMMARYOF APPELLANT’S ARGUMENT 1. Factual Summary Appellant was convicted in two separate acts of criminal sexual assault on a child. 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 the homeofappellant in Lakewood, Colorado. (17 RT 3808-3809.) 4] Nina went to bed, alone, but was later woken by appellant rubbing her chest and buttocks. (17 RT 3810.) She told appellant to stop, and he immediately complied with her wishes. He then hugged her and asked herto please not tell anyone or he wouldgotojail. (17 RT 3810.) Appellant went into the bathroom and Ninacalled her motherto pick her up. (/bid.) When her motherarrived, Nina told her what happened. (17 RT 3811.) Appellant eventually pled guilty to attempted sexual assault of a child. (17 RT 3906.) On November22, 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 Baughman fell 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.) 2. Legal Argument After hearing the prosecutor’s Motion in Limineto Introduce Evidence ofDefendant’s Prior Offenses Under Evidence Codesection 1108,the trial court ruled that both the above two unrelated sexual offenses could be introduced in the guilt phase of appellant’s trial under section 42 1108 to show appellant’s “propensity to commit sexual offenses.” (8 RT 1819.) In addition,thetrial court ruled that the two sets of crimes were sufficiently similar in nature to be admissible under Evidence Code section 1101 (b)to raise an inference of intent, but not sufficiently similar to raise an inference of identity. (8 RT 1819; 1822-1823.) In his AOB,appellant cited to the seminal case ofPeople v. Falsetta (1999) 21 Cal.4th 903, arguing that the reason that section 1108 does not violate state or federal due process is because of the inclusionin that section ofthe requirement that a “careful analysis under Evidence Code section 352 must be conductedby the trial court to assure that the defendant has not suffered undue prejudice. (/d. at p. 911; AOBat p. 69.) Appellant further argued that Falsetta also madeit clear that thetrial judge’s obligation to consider exclusion ofthis type of evidence under Evidence Codesection 352is to be taken seriously. This Courtdirected that this discretion be “broad” and wentso 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; AOBatp. 70.) Appellantcited to several cases, including this Court’s decision in People v. Loy (2011) 52 Cal.4th 46 to support the argument that the question ofthe similarity of charged and uncharged crimesis both relevant 43 and critical to the trial courts exercise of discretion under both sections 1108 and 1101 (b). (AOBatp. 70.) Appellant proceeded to argue that according to these cases, the non-violent sex crimes committed in 1992 and 1997 do not possesssufficient similarity to the instant crime to support an inference ofpropensity, hence, the non-charged crimes should not been admitted pursuant to section 1108. (See People v. Loy, supra, 52 Cal.4th at pp. 63-64; People v. Miramontes (2010) 189 Cal.App.4th 1085, 1096; People v. Escudero (2010) 183 Cal.App.4th 302, 306; People v. Hollie (2010) 180 Cal-App.4th 1262; AOB at pp. 70-73.) Appellant also relied upon this Court’s decision in People v. Abilez (2007) 41 Cal.4th 472. (AOB at pp. 75-78.) The Abilez Court used a similarity analysis in determining that defendant’s proffer of evidence of co-defendant’s propensity to commit the crime in question was inadmissible to prove co- defendant’s identity in the charged sexual murder under section 1108 and 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 andthe likelihood of confusing, misleading, or distracting jurors from the main inquiry,its similarity to the charged offense, its likely prejudicial impact on the jurors, the burden on the defendant in defending against 44 the uncharged offense, andthe availability of less prejudicial alternatives to its outright admission, such as admitting some but notall of the defendant’s other sex offenses, or excluding irrelevant though inflammatory details surrounding the offense. (Emphasis in original text) (People v. Abilez, supra, 41 Cal.4th atp. 502 citing to People v. Falsetta, supra, Cal.4th at p. 917.) This Court then found that the remoteness and lack ofsimilarity of the 1973 sex crime, unlawful intercourse with a minor to the charged offense of sodomy and murder of an older woman, precludedthe use ofthe 1973 crime undersection 1108. (People v. Abilez, supra, 41 Cal.4th at p. 502.) Appellant also cited to People v. Harris (1998) 60 Cal.App.4th 727, a case in whichthe court of appeal, using the factual similarity precepts of Falsetta, reversed a conviction because the prosecutor wasallowed to introduceevidence ofa prior violent rape the occurred 23 years before the charged offense. (AOBat pp. 78-79.) The charged offense consisted of accusations that defendant, a mental health nurse, used his position to sexually preying upon severalpatients. (AOBat p. 78.) Appellant pointed out that Harris relied both upon the remoteness of the uncharged offenses and their lack of similarity in making its decision. (/bid.) Appellant also argued that the degree ofsimilarity to create an 45 inference of intent under section 1101(b) was not present in this case. (AOBat p. 82 et seq.) Further, he argued that as intent was never an issue in the instant case, the admission of intent evidence would havelittle probative worth comparedto the prejudicial harm. (AOBat pp. 84-85.) B. SUMMARYOF RESPONDENT’S BRIEF ARGUMENT In its Brief, respondent arguedthatthe trial court did not abuseits discretion in permitting evidence of the 1992 and 1997 incidents. (RB at p. 58.) It stated that “the two subsequent offenses were highly probative proof appellant was sexually attracted to young children, and acts onhis pedophilic impulses when presented with the opportunity to do so without detection and whenhis victims are alone and otherwise vulnerable.” (/bid.) Respondentalso argued that there were many similarities between the subsequent offenses andthe instant offense. These includedthe fact that all of the crimes were sexualin nature, they all occurred at night, the victims wereall in their bedclothes, they were of similar age, and the crimes occurred while all were “in moments ofhigh vulnerability.” (RB at pp. 58-59.) Respondentalso argued that these points of similarity “were particularly relevant in light of appellant’s defensethat he did not rape and kill Cannie, but that his semen was somehowtransferred into her vagina by contact sometime after he had sexual intercourse with Cannie’s mother on 46 an unspecified occasion. Appellant’s propensity to sexually assault children certainly bore uponthe credibility of the proposed defense theory.” (RB at p. 59.) Regarding the application ofEvidence code section 352, respondent also argued that a relatively insignificant time was spent presenting the 1108 evidence andlittle risk of undue prejudice to appellant. (RB at p.60.) Respondent also concurred with thetrial court’s finding under Evidence Code section 352 that the sexual touching oftwo children was unlikely to be prejudicial. (RB 55, 60.) Further, respondent argued that neither the temporal remoteness between the subsequent offenses and instant offense nor the fact that the uncharged offenses took place after the charged offenses is a significant factor in that the trait of pedophilia remains constant over long periods oftime. (RB at pp. 60-61.) Respondent further argued that appellant’s reliance on Abilez and Harris was misplaced, stating that the non-charged and charged crimesin both cases were far more dissimilar than those in the instant case. (RB at pp. 61-63.) In addition, respondent claimedthat evenifthe trial court erred in the exercise of its discretion in this matter, the error was harmless, arguing that the standard to be used in reviewing the error should be based upon People v. Watson (1956) 46 Cal.2d 818, 836, which states that the harmless 47 error analysis is limited to a determination whetherit is reasonably probable appellant would have obtained a more favorable result had the evidence not been admitted. (RB at pp. 64-65.) C. APPELLANT’S REPLY ARGUMENT 1. General Law of Admissibility of Uncharged Crimes Pursuant to Evidence Code section 1108 People v. Falsetta, supra, 21 Cal.4th 903 set forth the parameters under which the trial court must determine whether or not uncharged sexual offenses are admissible to prove defendant’s propensity to commit the charged sexual offense. Asclearly stated by this Court, the trial court must [e]ngage in a careful weighing process under section 352. Rather than admit or exclude every sex offense a defendant commits, trial judges must consider such factorsasits nature, relevance, andpossible remoteness, the degree ofcertainly of its commission and thelikelihood of confusing, misleading, or distracting the jurors from their main inquiry,[its similarity of the main offense to the charged offense],its likely prejudicial impacton 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 but notall of the defendant’s other sex offenses, or excluding irrelevant though inflammatory details surroundingthe offense. (People v Falsetta, supra, 21 Cal.4th at p. 917.) The prejudice of section 352 is “evidence that poses an intolerable tisk to the fairness of the proceedingsorreliability ofthe outcome.” (People v. Booker (2011) 51 Cal. 4 141, 187-189.) 48 Evidence Codesection 1108 represented a radical shift away from the law that pre-existed it regarding propensity evidence. (People v. Fitch (1997) 55 Cal.App.4th 172, 181-183.) Prior to section 1108, it was universally accepted in California law that other crimes evidence could not be used to establish that a defendant had a propensity to commit a crime. (1101(a)) This is still the rule as to every type of crimes with the exception of sex crimes. This Court explained that the reason that the Legislative carved out this exception to the rule for sex crimes was because that evidence ofprior sexual acts was “critical” given the serious and secretive nature of sex crimes and the often resulting credibility contest between the accuser and defendantat trial. (People v. Falsetta, supra, 21 Cal4th atp. 912.) 2. Standard of Review In its Brief, respondent emphasized the “broad”discretion ofthe trial court in deciding whether to admit such evidence. (RB at p. 58.) However, the analysis that must be performedby thetrial court in deciding how to exercise this discretion may be neither reflexive norproforma. Before other crimes evidence, especially evidence as inherently prejudicial as a sex crime, may be admitted for consideration by the jury hearing the instant offense, an “extremely careful analysis” is necessary. (People v. Ewoldt (1994) 7 Cal.4th 380, 404.) 49 Therefore, while this trial court’s discretion is certainly entitled to a degree of deference by this Court, the decision ofthetrial court can pass appellate muster only if evidence admitted remains within the parameters of the legal standard set by existing law. An “action that transgresses the confines of applicable principles of law is outside the scope of discretion and wecall such action an “abuse of discretion.” (Sacramento v. Drew (1989) 207 Cal.App.3d 1287, 1297.) Therefore, as stated by this Court, “to determine whethera court has abusedits discretion , we must...consider the legal principles and policies that should have guided the court’s actions.” (Sargon Enterprises, Inc. v. University ofSouthern California (2012) 55 Cal.4th 747, 773.) Asstated in People v. Harris, supra, 60 Cal.App.4th at p. 736 “[t]he discretion intended...is not a capriciousorarbitrary discretion, but an impartial discretion, guided and controlled in its exercise by fixed legal principles. It is not a mental discretion, to be exercised ex gratia, but a legal discretion, to be exercised in conformity with the spirit of the law and in a manner to subserve and not to impede or defeat the ends of substantial justice.” Further, “to the extent thetrial court’s ruling depends on the proper interpretations of the Evidence Code, however,it presents a question of law and the review is de novo.” (People v. Walker (2006) 139 Cal.App.4th 782, 792.) “Section 1108 passes constitutional muster if and 50 only if section 352 preservesthe accused rights to betried for the current offense (emphasisprovided by court). (People v. Harris (1998) 60 Cal.App. 4" at p. 737.) 3. Analysis of Instant Case Undersection 1108 Respondentessentially predicatedits entire argument on the applicability of section 1108in this case on the free-standing fact that the charged and uncharged crimesall involved some sort of sexual crime against children. (RB at pp. 58-59.) Appellant maintains that the disposition of this issue is not as simple as respondent wouldlike this court to believe. Appellantfully agrees that the most important factor of section 1108lawis the similarities ofthe charged and uncharged offenses to one another. However, respondent was wrongin its simplistic conclusion that the age of the victim was the dispositive factor in this case.* Respondent’s attempt to draw additional similarities, apart from the age of the victims, are strained andfail the test of common-sense andlogic (RB at p. 59.) Asstated above, the reason why the Legislature carved out the section 1108 exception to the general law ofEvidence Codesection 1101(a), was becauseofthe “serious and secretive nature of sex crimes and 4. In fact, the trial court in its ruling stated that the the uncharged offenses were admissible under 1108 to show appellants “propensity to commit sexual offenses” not propensity to commit crimes against children. (8 RT 1819-23.) 51 the often resulting credibility between the accuser and defendantattrial.” (People v. Falsetta, supra, 21 Cal.4th at p. 912.) Therefore, whileit is true that both the uncharged and charged crimes were committed against children of the same general age, the other similarities cited by respondent were either part of the universal “secretive” nature of such crimes,or simply a coincidence without any probative significance. For example, the fact that all crimes were committed “at night” does not constitute a modus operandi. Most sex crimes are committed under the cover of darkness. Further, if as respondent argued, both the charged and uncharged crimes were crimes of opportunity (RB at p. 58), it would hardly matter that the crimes were committed at a particular time of the day. Further, respondent’s argumentthat the fact that the victims were in bed clothing wasa “similarity,” is without merit. (Jbid.) If the cirmes were committed at night, it is only logical that the victims would have been dressed in sleeping clothes. Respondentfurther arguedthat the assaults all came “in moments of high vulnerability.” (RB at p. 59.) Again, due to the inherently “secretive nature” of sex crimes, the great majority of a/l sexual crimes, regardless of the nature of the victim, occur at such moments. The very nature of sexual offenses is that they occur in a private so that the perpetratoris isolated from the intervention of third parties. 52 Respondentfailed to recognize the truly dispositive difference between the instant offense and the uncharged offenses in the instant case. This difference is so great that it refutes any inference that can be made that the commission of the uncharged offenses show a propensity to commit the instant offense. While both sets of crimes had some sexual components, the core feature of the instant offense was the extreme violence with which it was committed. Cannie was raped and murdered, not simply inappropriately touched. The fact that a defendant has a inclination to inappropriately touch a child, does not lend itself to a logical inference that the same defendantis a murderer andrapist of a child victim. Therefore, the 1992 and 1997 offenses, which occurred 13 and 17 years after the charged offense, respectively, had very little or no probative value as to the commission of rape and murder of Cannie Bullock. The undue prejudice of branding appellant as a pedophile, albeit a non-violent one, easily was “evidence that poses an intolerable risk to the fairness of the proceedings or reliability of the outcome.” (People v. Booker (2011) 51 Cal. 4" 141, 187- 189.) Such a branding essentially destroyed any hope that the jury would carefully listen to or consider appellant’s defense that his DNA was transferred to Cannie through a non-sexual vector. (AOBat pp. 18-22.) Therefore, respondent’s claim that the charged offense was more “inflammatory”that the non-chargedoffensesis a distinction without a 53 difference. Theoverriding importanceofthe violent/non-violent dichotomyas it relates to admissibility pursuant to section 1108 can been seen in any numberof cases from both this Court and the court of appeals. Very recently, People v. Jandres (2014) 226 Cal.App.4th 340 dealt with an appeal of defendant’s conviction forcible rape ofAdriana “Doe,” an 18 year old young woman. Adrianatestified that she had been drinking the nightthe alleged sexual assault when she was approached by defendantin front of a 7-Eleven. She stated defendant grabbed her and forced her to a moreisolated location where heviolently raped her until a police officer approachedto investigate, whereupon he ran away. (Id. at 347.) Acting upon a prosecution motion, pursuantto section 1 108 the trial court allowed before the jury evidence regarding an offense that appellant allegedly committed against an 11 yr oldgirl, “Madeline.” According to pre- trial motion testimony, Madeline was lying on a couch in her grandmother’s house when the defendantbroke in. He sat down next to her, put his hand over her mouth, picked her up, and walked across the dining room. At somepoint while doing so, defendantput his finger inside Madeline’s mouth. Madeline began to scream and defendant dropped her and fled. (People v. Jandres, supra, 226 Cal.4th at p. 346.) After hearing Madeline’s testimony,the trial court ruled that it was 54 admissible under section 1108 "as evidence of a sexual offense” reasoning that “touching an 11-year-old, picking that person up and carrying them toward exiting the room, clearly has sexual intent to it and, therefore, is a proper basis as 1108 evidence.” (People v. Jandres, supra, 226 Cal.App.4th at pp. 346-347.) The trial court further expressly rejected excluding this evidence under Evidence Code section 352 because it would not cause “any confusion of issues, undue consumption of time, nor does the prejudice outweigh the probative value.” (Id. at p. 347.) The appellate court had two issues to decide. The first was whether the assault against Madeline was a sexual crime pursuantto Legislative intent. (People v. Jandres supra, 226 Cal.App.4th at p. 354.) The reviewing court held that the jury could reasonably find that the uncharged incident constituted a sexual offense under Penal Code section 647.6 (child molest) because ofthe insertion of defendant’s finger in her mouth. (Jbid.) However, the appellate court reversed defendant’s conviction, ruling that the trial court erred by admitting Madeline’s testimony under Evidence Codesection 1108. (People v. Jandres, supra, 226 Cal-App.4th at p.354.) Thecourt reiterated that section 1108 "passes constitutional muster if and only if section 352 preserves the accused rights to betried for the current offense.” (/d. at p. 355; People v. Harris, supra, 60 Cal.App.4th at p. 737.) The Jandres court cited to People v. Nguyen (2010) 184 Cal.-App.4th 55 1096, 1117 in stating the factors to be considered in making this 352 analysis. (1) whether the propensity evidence has probative value, e.g., whether the uncharged conduct is similar enough to the charged behavior to show defendant did in fact commit the chaired offense; (2) whether the propensity evidenceis stronger and more inflammatory that evidence ofthe defendant’s charged acts; (3) whether the uncharged conduct is remote or stale; (4) whether the propensity evidenceis likely to confuse or distract the jurors from their main inquiry, e.g., whether the jury might be tempted to punish the defendant for his uncharged, unpunished conduct; and (5) whether admission ofthe propensity evidence will require an undue consumption of time. (Jandres, supra, at p. 355.) The Jandres Court then held that the uncharged sex offense must have some tendency in reason to show that the defendant is predisposed to engage in conduct ofthe type charged. (People v. Jandres, supra, 226 Cal.App.4th at p. 355, emphasis provided by court; see also People v. Earle (2009) 172 Cal.App.4th 372, 397.) It further confirmed the charged and uncharged offenses may be so dissimilar as to mandate exclusion under Evidence Codesection 352. (People v. Jandres, supra, 226 Cal.App.4th at p. 356.) The Jandres Court stated “at issue in defendant’strial is whether he forcibly raped Adrianaas shetestified, or had consensual sex with her, as he maintained. Thus, the pertinent inquiry is whether evidence that defendant exhibited a sexual interest in an 11 year old by putting his finger 56 in her mouth rationally supports an inference that defendant is predisposed to rape an 18 year old woman.”(People v. Jandres, supra, 226 Cal.App.4th at p. 356.) Citing to People v. Earle (2009) 172 Cal-App.4th 372, 396-398, Jandres held that a non-violent but sexually based crime does not support the inference that the person who committed it has a propensity to commita violent sexual assault. (Ibid.) As such Jandres concludedthatthe prejudicial effect of Madeline’s testimony exceededits relativedly low prejudicial value and should have been excludedby the trial court. (Id. at p. 357.) As such, Jandres has substantial precedential value in the instant case. What respondent completely ignoredis that the sexual touchingofthe children in the prior offenses were a completely different type of crime from the murder. Cannie wasnot just touched; she wasforcibly raped, then she was beatenand strangled after she was violated. In spite of respondent’s argument, the only thing that these crimes had in common were that they were sexually motivated and committed against children.*> However, appellant is not on death row because he was charged with an act of pedophilia. He is on death row because he was convicted the special 5. In Jandres, the 18 year old rape victim was only 7 years older than Madeline. Further, Adrianna “Doe”stood only 4' 11", hence may havebeeneasily confused for a child. In spite ofthis, the Jandres did not consider the similarities in age and stature a significant factor. 57 circumstance of committing murder during the course of a violent sexual crime. Asstated in Jandres, the fact that a crime may have a sexual component does not mean thatit allows for the inference that the defendant who committed that crime has a disposition toward violent rape and murder. In fact, the uncharged crime in Jandres had far greater similarities to the charged crime against Adrianna that was the case here. In Jandres, there was an element ofviolence in the attack on Madeline. In the instant case, appellant went so far as to apologize to Nina and beg,not threaten, her to nottell the police. Therefore, ifJandres overturned defendant’s conviction, so much more should the instant conviction be overturned, because the uncharged offenses involved no violence or threats of violence, whatsoever. Thefact that Nina and Curtis were a few years older than Cannie® does notcreate the level of similarity needed to create an inference of appellant’s predisposition to commit violent sexual offenses or sexual murder. There is an enormous difference between harboring a sexual attraction towarda particular class ofvictim, and acting upon thatattraction through rape and murder. 6. In Jandres, Adrianna and Madeline were7 yearsapart. In the instance Cannie and Nina were 4 years apart, only a three year difference. 58 To create the inference ofpredisposition to commit the charged offenses from the facts of the non charged offenses there must be a far greater degree in similarity between the charged and uncharged offenses than seen in the instant case. All of the cases cited by respondent to support its argument that such an inference is warranted are factually dissimilar to the instantcase in that the similarities between the charged and uncharged crimes were far more similar than in the instant case. In People v. Jones (2012) 54 Cal.4th 1, 49 (RB at pp. 56-57), defendant was charged with the forcible rape and murder of an elderly woman andsetting fire to her house to cover up the crime. (People v. Jones, supra, 54 Cal.4th at p. 11.) Defendant’s position at trial was not that he did not do the acts in question, but that he went to the victim’s hometo check on her safety. He was intoxicated and accidentally fell on her, killing her. Defendantclaimed he had nointention of having sex with the victim before he went over to her house and if such an intent arose, it occurred post- mortem. (/bid.) Therefore the central issue for the jury to resolve was intent. (/bid.) The non-charged 1108 offense admitted by the trial court was a very similar crime of forcible rape on a 16 year old girl committed six years priorto the instant offense (People v. Jones, supra, 54 Cal.4th at p. 18.) This crime was admitted for the purpose ofproving defendant’s propensity 59 to commit violent sex crimes to refute his argumentas to lack ofintent. (Ibid.) This Court held that the uncharged assault was admissible under section 1108 because it was probative to prove that defendant had the propensity to commit violent sexualoffenses, thereby disproving the defense that he did notintend to rape the victim in the instant case. (People v. Jones, supra, 54 Cal.4th at p. 51.) Thevalue of any such propensity evidence is to serve as circumstantial evidence that defendant committed the instant offense. (People v. Jones, supra, 54 Cal.4th at p. 49.) Clearly, as in Jones, for circumstantial evidence ofa prior offense to have any relevant probative value to the instant offense it must be of a similar general type of crime, unlike in the instant case. Further, the fact that the victims were notofthe same age was irrelevant to this Court, damaging respondent’s argumentthat age similarities between charged and unchargedvictimsare critical to the section 1108 analysis. People v. Lewis (2009) 46 Cal.4th 1255 wasalso improperly relied upon by respondent to support contention that sufficient similarities existed in the instant case. (RB at pp. 58, 60.) In Lewis, defendant was charged with forcibly raping Patricia Miller and then murdering her by slashing her throat. (Id. at p. 1260.) Defendant maintainedthat he had consensual sex 60 with Miller, whom he had befriended, and that he neither rape nor murderedher. (/d. at p. 1268.) Overthe objection of defense counsel, the trial court allowed the prosecutor to admit testimony about appellant’s rape of Christa B., under both Evidence Code sections!101(b) and 1108, to show defendant’s propensity to commit sexual assaults. (People v. Lewis, supra, 46 Cal.4th at pp. 1284-1285.) Christa testified that defendant gained entry to her apartment underthe guise of “chatting” with her and proceededto violently overpowerher, threatening to slash her throat if she did not submitto his brutal assault. (/d. at p. 1276.) This Court rejected the defense argumentthat the probative value of the Christa B. rape was greatly outweighedbyits prejudicial impact. This Court basedits ruling upon the strong similarities between the charged and uncharged crimes. The probative value ofthe evidence was strong. First, the two sexual assaults shared many similarities. Defendant was acquainted with both victims before the assaults, and therefore may have chosen them because they would be more inclined to grant him access to their homes, wherethe assaults occurred. Both attacks occurred late in the evening after defendant socialized and ingested drugs with the victims, suggesting they were induced to let down their guard. Both victims were physically small in stature and therefore less able to resist a physical assault. The hands of both victims were pinned abovetheir heads. Both victims were strangled. Defendant threatened to slice Christa B.'s throat, and Miller's throat was cut. Second, the prior offense occurred only four 61 years earlier, and defendant had been incarcerated for much of the intervening time. Finally, the independent sources of the evidence, particularly the police detective's testimony that Christa contemporaneously reported the same details of the prior offense that were set forth in her testimonyat defendant's trial, increased the probative value ofthe evidence. (People v. Lewis, supra, 46 Cal.4th at p. 1287.) Thecritical connection between the charged and uncharged offenses in Lewis was the violent nature ofboth crimes, the type of force used to facilitate their commission, andthe relatively short period oftime between their commission. Because of both the similarities and nearnessin time, the uncharged crime supported an inference of defendant’s propensity to commit crimes of savage violence, with his preferred method offorce a slashing knife. The facts of the instant case were essentially the polar opposite ofLewis;, hence, respondent’s reliance on Lewis was completely misplaced. It cannot be logically maintained that people who have the propensity to touch young children have the propensity to kill them, or even for that matter, vaginally rape them. Touching children when they sleep, while certainly a serious matter, is a far, far cry from child murder. Respondentalso cited to People v. Villatoro (2012) 54 Cal.4th 1152 for the proposition that the instanttrial court’s analysis under section 352 wasproperly conducted. (RB at p. 57.) However, not only is Villatoro off point as to respondent’s argument, it actually supports it. In Villatoro, the 62 defendant wascharged with five sets of sexual crimesagainst five different women, most ofwhom wereprostitutes. The crimes all occurred within 3 years of one another, andall involved defendant picking women up in his car, using somesort of deadly weapon to threaten them into submission, and then violently raping them and robbing them beforeletting them go. (Ud. at p. 1156-1158.) The question in Villatoro was not whether uncharged offenses could be admitted under section 1108, but whether it was appropriate to give the jury a modified section 1108 jury instruction that would allow it to consider the five sets of charges together to with the purpose of determining whether defendanthad the propensity to commit violent sexual offenses. (People v. Villatoro, supra, 54 Cal.4th at pp. 1158-1159.) In reachingits holding that section 1108 was applicable in a case where all the crimes were charged, this Court expressly approved ofPeople y. Harris, supra, 60 Cal.App. 4" 727, which wasdiscussed at length by appellant in his Opening Brief to support appellant’s position thatthe trial court erred in allowing before the jury the non-violent touching crimes against Nina and Curtis.’ In Harris, defendant, a mental health nurse, was accused ofsexually 7. See AOBat pp. 78-80 for a more complete discussion ofHarris. 63 preying upon women who were vulnerable to his advances dueto their mentalillnesses. (/d. at p. 730.) Defendant never used any violence against these women.(/d. at 731-732.) The defense to these allegations wasthat the womenin question were hallucinating due to their mental condition. ([bid.) Overthe objection of defense counsel, pursuant to section 1108, the trial court permitted the prosecutor to introduce evidence of a vicious rape and assault with a deadly weapon committed by defendant 23 years before the charged offenses. (Harris at p. 733-735.) The court of appeal overturned defendant’s conviction because the evidence ofthe prior rape and assault with a deadly weapon charge was inadmissible due to the section 352 provision of section 1108. In doing so, the court of appeal focused upon both the remotenessofthe earlier rape and the dissimilarity betweenit and the charged crimes in making its determination of section 352 prejudice. While making it clear that there is no “bright line rule” as to the amountoftime 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 evidence that defendant was involved in any serious wrongdoing in this 23 year period supported the notion that the admission ofthe evidence of the prior rape was prejudicial in thetrial of the charged offenses. Ibid.) 64 Regardingthe 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 ofnon-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 ofthe same degree as in 1101 (b) cases, there hasto be at least a “meaningful similarity” between the two sets of crimes in 1108 cases for there to be any probative value even in a propensity sense. (/bid.) In its brief, respondent claimed that Harris was factually too dissimilar to advance appellant’s cause. (RB at pp. 62-63.) However, respondent’s argumentis largely based upon respondent’s insistence that similarity in the victim’s ages is dispositive of the section 1108 issue. Respondent further argued that unlike in the instant case, the uncharged offense in Harris was not only “totally dissimilar” to the charged offense but was “remote, inflammatory and nearly irrelevant and likely to confuse the jury and distractit from the consideration of the charged offenses.” (People v. Harris, supra, 60 Cal.App.4th at pp. 740-741.) Respondent’s attempt to distinguish Harris from the instant case essentially made appellant’s case for him. As described above, despite respondent’s insistence, the charged and uncharged offensesin the instant 65 case are just as dissimilar as they were in Harris. The charged offense involved a brutal rape-murder, and the uncharged offenses involved a surreptitious non-painful touching, two completely different types of events. The fact that the victims in the instant case were all children, should have no more impactthan the fact that the crimes in Harris wereall committed against adult women. Respondent’s claim that the uncharged offense in Harris was inflammatory as opposed to the uncharged offensesin the instant case ignores the reality ofhow those whosexually touch children are viewed. Suchpersonsare universally despised by society. Even if prison, they are considered pariahs who haveto be isolated from the general population lest they be harmedor killed. Even after their release, society’s outrage is expressed in draconian lawsostracizing such offenders by publishing their namesin sex offenderregistries and enacting lawsrestricting where they maylive and work. Branding appellant as such an individual virtually guaranteedthat the jury would ignore his defense of non-sexualtransfer of his DNA andconvict him for what he had done in thepast. Respondent made the same argument as to appellant’s reliance on People v. Abilez, supra, 41 Cal.4th 472. (RB atpp. 61-62), stating that Albilez can be distinguished from the instant case because the charged and uncharged crimes were committed 20 years apart and were committed upon 66 victims of different ages. (RB at pp. 61-62.) As stated in the AOBat pp. 75- 78, Abilez was charged with the sodomy-murder of a 68 year old woman. Duringtrial, he proffered evidence that his co-defendant had attempted to have sex with a minor 20 years prior to the charged offense. This Court upheldthe trial court’s denial ofAbilez’s request to present this evidence on the groundthat the offenses were too dissimilar to one another and that no logical inference could be made that because the co-defendant attempted to have sex with a minor, he was predisposed to kill and sodomize an elderly woman.(/d. at p. 500-502.) Abilez is directly on pointin the instant case. The charged and uncharged offenses were just as dissimilar and almost as far apart in time. Once again, respondentbasedits entire argument on the similar ages ofthe victims in the instant case and ignoredthe fact that the two sets of crimes were completely dissimilar. Respondent’s reliance on People v. Loy, supra, 52 Cal.4th at p. 63 is, for the same reasons mentioned above, completely misplaced. (RB atp. 59.) Loy was charged with the violent sexual assault and murder of 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.) The uncharged offenses were that on two separate prior occasions defendant committed violent sexual assaults against women by meansofchoking. (/d. 67 at pp. 54-55.) This Court upheld thetrial court’s admission ofthe uncharged offenses to show propensity. It did so by identifying the following points of similarity. (1) One ofthe victims was only four years older than the 12- year-old victim was whenshe 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 sexual assault. (People v. Loy, supra, Cal.4th at pp. 63-64.) The Loy Court found evidence of the choking to be highly relevant and therefore “weighing in favor of admission.” (/bid.) The emphasis ofthis Court in Loy was the violent way both crimes were committed and the fact that both victims were raped and choked. The similarity or lack thereof in age ofthe victims in the charged and uncharged crimes was ofvery minor importance. It was the similar violent conduct that created the inference of propensity. In the instant case, the uncharged offenses had nothingatall in common other than the fact that both the charged and uncharged crimes statutorily qualified as sexual offenses. In fact, those crimes were as far apart in similarity as any two crimes could be andyetstill fit into the broad legislatively created category of sexual crimes. 68 This is not to say that there are not situations in which uncharged improper sexual conduct with children cannot serve to establish an inference of predisposition to commit a similar charged offense. People v. Miramontes, supra, 189 Cal.App.4th 1085 is an example ofa fact situation in which the charged and uncharged victim were all of the same youthful age and the crimes weresufficiently similar to create an inference of propensity. Defendant was charged with three sets of sexualassaults on three separate male children, ages 7, 12, and 11, respectively. Defendant was acquainted with the victims from past experienceand the assaults consisted of relatively non-violent touching of the children and lewd behavior in their presence. (Id. at p. 1090; AOBat p. 72.) The court of appeal ruled that evidence ofthe same type of crimes committedin the exact same manner upon twovictimsofa similar age was admissiblein that it logically created the inference that defendant had the propensity to commit non-violent acts of sexual abuse on children. (/d. at p. 1093-1094.) Consideringall of the above authorities, appellant’s right to due process of law under both the federal and state constitutions was violated by thetrial court’s failure to exclude evidence of appellant’s 1992 and 1997 convictions. Respondentfurther claimed that any error committed bythetrial court was harmless (RB at p. 64) and that any error involved the 69 misinterpretation of the state evidence code (section 352), so the standard for determining prejudice is that of People v. Watson (1956) 46 Cal.2d 818, 836, as opposed to the more stringent review of constitutional violations mandated by Chapmanv. California (1967) 386 U.S. 18, 24. (RB at pp. 64-66.) Respondent is mistakenin its analysis. The seminal case ofPeople v. Falsetta, supra, 21 Cal.4th at p. 915 madeit clear that the improper application of section 1108 invokes a violation of a defendant’sright to due process of law. Falsetta directly stated that only the proper application of section 352 “saved” section 1108 from violating a defendant’sright to due processoflaw. (Id. at p. 919.) Therefore, the improper application of section 352 in this particular instance is elevated to constitutionalerror. The admission ofthe uncharged offenses statement was unquestionably an error in federal constitutional law, and reversal is mandated unless respondent can prove the error harmless beyond a reasonable doubt. (Chapmanv. California, supra, 386 U.S.at p. 24; People v. Cage, supra, 40 Cal4th at pp. 991-992.) An error is considered “harmless” beyond a reasonable doubt when it does not contribute to the verdict because it is “unimportant in relation to everything else the jury considered on the issue in question, as revealed in the record.” (Yates v. Evatt (1991) 500 U.S. 391, 403, disapproved on other 70 groundsin Estelle v. McGuire (1991) 502 U.S. 62, 72, fn 4.) Obviously, to makethis determination, the reviewing court must look to the evidence that the jury actually heard in a given case. (/bid.) Recently, in People v. Jackson (2014) 58 Cal.4" 724, Justice Liu, in his separate and concurring and dissenting opinion reviewed the current state of the Chapman standard for harmlesserror as it has been applied by this Court. He stated that the standard required before federal constitutional error can be said to be harmless “has long been understood to indicate the very high level of probability required by the Constitution to deprive an individualoflife or liberty.” (/d. at p. 792; Victor v. Nebraska (1994) 511 U.S. 1, 14.) As Justice Liu stated, while the standard of “beyond a reasonable doubt”is not one of absolute certainty, it is intended to be “very stringent: it is not satisfied so long there is a doubt based upon reason.” (People v. Jackson, supra, 58 Cal.4th at p. 792; Jackson v. Virginia (1979) 443 U.S. 307, 317.) As Justice Liu observed, “The stringencyofthis standard reflects not only its protective function but also its amenability to principled application.” (People v. Jackson, supra, 58 Cal.4th at p. 792.) Accordingly, Justice Liu opined that under Chapman, a reviewing court “need not calibrate its certitude to some vaguely specified probability, instead the court must be convinced that the error was harmlessto the maximallevel ofcertainty within the realm ofreason, a \evel that admits no 71 reasonable doubt.” (/bid emphasisin originaltext.) Obviously, the burden falls upon the party who benefited by the error, the prosecution. (Chapman, supra, 386 U.S.at 24.) Therefore, as stated by Justice Liu “it is not defendant’s burden to show that the error did have adverse effects; it is the state’s burden to show that the error did not have adverse effects.” (Jackson, supra, at p. 793 (emphasis in original text).) Because it may be difficult to determine whether a particular error contributed to the jury’s verdict given the counterfactual nature of the inquiry,“the allocation of the burden proving harmlessness can be outcome determinative in some cases” (Gamachev. California (2010) 131 S. Ct 591, 593.) Justice Liu discussed the United States Supreme Court’s opinion in Riggins v. Nevada (1992) 504 U.S. 127, 138, in which the Court reversed a capital conviction because defendant was unconstitutionally forced to take anti-psychotic drugs during the courseofhistrial. In Riggins, the United States Supreme Court made no finding that the medication actually affected the defendant’s outward appearance,testimony, ability to follow the proceedings, or communication with counsel. The High Court stated thatit was enoughthat sucheffects were “clearly possible,”and it was the state’s burden to show that the error did not have such adverse effects. 72 In the instant case, under those principles, the respondent must prove that the error in allowing the jury to hear evidence ofthe uncharged offenses was harmless to the extent that there was absolutely no doubt based upon reasonthatthe error did not have an adverse effect on the verdict. As the branding of appellant as a pedophile doomed appellant’s defense, respondent cannot meet this burden. As such, the entire conviction mustbe vacated. 4, Evidence of the Uncharged Crimes Is Not Admissible Under Evidence Code section 1101 (b). Respondent claimed that appellant forfeited any claim of error related to the admission of other crime evidence under Evidence Code section 1101(b) because thetrial court ruled the uncharged offenses were admitted under section 1108 and not under 1101(b). (RB at pp. 67-69.) Appellant is perfectly willing to accept respondent’s representation that the trial court chose not to admit the uncharged offenses under section 1101 (b). If such wasthe case, appellant need not argue that the trial court was incorrect by doing so. Therefore, the trial court’s error was based onits incorrect application of section 1108, which wasfully discussed above. In the event that this Court does wish to consider thetrial court’s admission ofthe uncharged crimes under subdivision (b) of section 1101, respondent is incorrect whenit stated that the similarities of the charged 73 and uncharged crimes weresufficient to allow for the admission of the uncharged offenses. As a general proposition, in California, evidence of a person’s characterortrait thereof is not admissible to prove that person’s conduct on a specific occasion. (Evidence Codesection 1101(a).)* However, Evidence Code section 1101(b) created an exception to this general rule by stating that section 1101 (a) does not prohibit admission of evidence of uncharged misconduct when such evidenceis relevant to establish some fact other than the person's character or disposition, such as motive, intent, common plan or schemeor identity. (Evid. C. § 1101, subd. (b); People v. Ewoldt (1994) 7 Cal.4th 380, 393.) Respondent maintained that under section 1101(b), the uncharged offenses were relevant to prove appellant’s identity as Cannie’s killer, as well has his intent and motive. (RB at p. 69.) Appellant fully explained in his Opening Briefwhy this was not the case. (AOBat pp. 82-86.) For section 1101 (b) to create an inference of either intent or identity, the non-charged and charged crimes must possessa sufficient degree of similarity in the way they were committed to create that inference. Evidence of intent is admissible to prove that, if the defendant committed the act alleged, he or she did so with the intent that comprises an 8. Evidence Code section 1108 is also an exception to this general rule, to the extent it is appropriately applied. 74 elementofthe charged offense. “In proving intent, the act is conceded or assumed; whatis sought is 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.) Theleast degree of similarity (between the unchargedact andthe charged offense) is required in order to proveintent. "[T]he recurrence of a similar result ... tends (increasingly with each instance) to negative accident or inadvertenceor self-defense or good faith or other innocent mentalstate, and tendsto establish (provisionally, at least, though notcertainly) the presenceofthe normal, i.e., criminal, intent accompanying such an act.... (2 Wigmore, supra, (Chadbourn rev. ed. 1979) §§ 302,p. 241.) 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 sameintent in each instance.' [Citations.]" (People v. Robbins, supra, 45 Cal.3d at p. 879 ; see People v. Ewoldt, supra, 7 Cal.4th at 402.) Nosuchsimilarity existed between the charged and uncharged crimes in this case. The “result” of the charged crime was rape and murder. As stated above, the uncharged comes were completely dissimilar in both 75 commission and operation. They involved surreptitious touching, stopped as soon as the victim objected. Further, there was no issue of inadvertence, self defense or other innocent mental state as to the charged crime.In a case such asthis, the intent was painfully obvious from the scene ofthe crime. To create an inference ofidentity, the similarities between the charged and uncharged crimes must be far greater than those that may be relied on to proveintent. For identity to be established, the uncharged misconduct and the charged offense must share commonfeaturesthat are sufficiently distinctive so as to support the inference that the same person committed both acts. (People v. Miller (1990) 50 Cal.3d 954, 987.) The charged offense involved rape and murder. The uncharged offenses involved touching. The fact that both sets of offenses were committed against children does not even begin to meet the similarity requirements ofMiller. Therefore, neither Evidence Code section 1108 nor 1101 (b) can justify the admission of the 1992 and 1997 touching offenses in the instant trial. The admission ofthese non-charged offenses caused defendant to be branded in the jury’s mind as a child molester, a branding that eliminated any chance appellant hadto a fair trial. As such, the entire judgment must be reversed. 76 Hit. APPELLANT’S RIGHTS TO DUE PROCESS OF LAW UNDER THE FIFTH AND FOURTEENTH AMENDMENTSOF THE UNITED STATES CONSTITUTION WERE VIOLATED BY THE TRIAL COURT’S REFUSAL TO ORDER DISCOVERY OF REQUESTED MATERIAL EVIDENCE A. SUMMARYOF APPELLANT’S ARGUMENT 1. Factual Background Asstated in Appellant’s Opening Brief, by 2002, the discriminatory factor ofDNA testing had greatly improved over the type ofDNAtesting that was unavailable before that time. (AOBat pp. 11-14.) On February 2, 2002, David Stockwell, the lead DNA analyst at the sheriff's laboratory, tested the samples obtained from Cannie’s body during the 1979 autopsy, using testing kits which targeted 13 separate loci and one additional gender discriminatory site. (16 RT 3624-3625.) He was successful in creating a profile from those samples for both the non-sperm fraction and the sperm fraction. (16 RT 3636-3637.) The profile of the non-sperm fraction was matched to 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 of the DNA profile for the sperm fraction of the extracts taken from Cannie, Mr. Stockwell uploadedthat profile into the 77 FBI’s CODIS database ofDNA samples taken from convicted offenders. (16 RT 3638.) Not long afterward, Mr. Stockwell was informedthat a profile in the CODISdata base shared the same13site profile as the one he had submitted from the Cannie Bullock case. (16 RT 3639.) The matching profile was that of appellant, who was then incarcerated in Colorado. (16 RT 3574-3576.) A warrant was issued to allow for a blood sample to be taken from appellant. DNA from that sample wasextracted and amplified and a profile created which matchedthe sperm fraction profile.. 16 RT 3642.) Mr. Stockwell determined that one would expectto see Mr. Cordova’s profile in 1 in 3.6 quintillion Hispanics, 1 in 3.1 quintillion African Americans, and 1 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 donein February and Marchof2003. The results were the same as the 2002tests. (16 RT 3645.) The finaltest 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 78 Associates, a private forensic laboratory. (16 RT 3777.) Mr. Keel used a newtest kit, the Identifiler, that tested alleles at 15 genomicsites as opposedto 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 ofthe sperm fraction from the autopsy samples. Mr. Keel calculated the statistical frequency forthis profile as 1 in 13 billion trillion for Hispanics, 1 in trillion trillion for African-Americans, and 1 in 134 trillion for Caucasians (16 RT 3783-3784.) 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 “FSA.” ) Instances of unintended DNAtransfer or sample contamination: Please provide copiesofall records maintained by the laborator(ies) that documentinstances of unintended transfer of DNAor sample contamination, such as any instances of negative controls that demonstrated the presence ofDNAorthe detection of unexpected extra alleles in control or reference samples, and any corrective measures taken. (3 CT 601, 606.) In a July 12, 2005 responseletter, the prosecutor refused to tender 79 this discovery, stating that it did “not believe that the information you are requesting is relevant, noris it under our custody or control.” (3 CT 620.) On November14, 2005, appellant filed a Motion to Compel Discovery. (3 CT 583; AOBat p. 87.) Appellant contendedthat he that was entitled to this requested discovery because it was relevant to the history ofthe quality ofwork done by FSA.(3 CT 586; AOBat p. 87.) He also arguedthat the American Society of Crime Laboratory Directors, the organization which provides accreditation for forensic laboratories, requires accredited crime laboratories that conduct DNA testing to create and maintain records documenting instances of contamination which occurred duringtesting. (4 CT 767; AOBatp. 88.) In its opposition to the Motion, the prosecution asserted that FSA did not keep such a separatelist nor was there a legal requirement for FSA to create one in responseto a defense request. (3 CT 627; AOBat p. 88-89.) At a hearing on December8, 2005,the trial court found, in reliance on the prosecutor’s argument, that the gathering of information from FSA documenting contamination in its cases would require examination of hundreds offiles over many years, records that occupy “a whole wall of binders at the FSA labs.” (2 RT 219-221.) The court also questioned whether appellant was entitled to the discovery sought under either PC 80 1054 or the United States Constitution (2RT 227), stating appellant had made no showing that the information sought was exculpatory andcalling appellant’s request“a fishing expedition.” (2 RT 228; AOBat p. 90.) The court opinedthat, in reality, what the defense was seeking was for the prosecution to produce the recordsofall ofthe FSA projects so the defense could determine ifthere had been any instances of contamination. Pending the testimony of Dr. Edward Blake ofFSA,thetrial court tentatively ruled that appellant was notentitled to that information either under Penal Code section 1054 or the United States Constitution. (2 RT 232; AOBat p. 90.) Dr. Blake thentestified that he founded 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 ofunintendedtransfers or other contaminationin its testing. (2 RT 345.) Hestated that he was in possession of about one thousand casefiles andit 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 “somesort of misadventure.” (2 RT 357; AOB at p. 91.) Defense counsel argued that while they still maintained appellant was entitled to all of the information requested, they were willing to limit 81 the temporal scope of the discovery to all instances ofunintended of transfer or contamination that occurred between sixty days before or sixty days after FSA’s testing done in the instant case. (2 RT 385; AOBat p. 91.) In spite of this reasonable offer of comprise, the trial court ruled that the defense had failed to makea sufficient showing that evidence of any errors in testing done by FSA in other cases might be relevant to this case (2 RT 394), and tentatively denied appellant’s request for the material from FSA.(2 RT 399-400.) After another round of briefing (AOBat pp. 91-94), on June 5, 2006,the trial court madeits final ruling on this issue, stating that the discovery sought by the appellant were files “completely unrelated”to the instant case and as such the prosecution had “no right and no ability to review those files or compel the laboratory in question, Forensic Science Associates, to produce them.” (4 RT 972-973.) The court further held that the cost and labor involvedin the review ofthese files “would be considerable.” (4 RT 973.) The court also reversed its prior ruling and held that FSA wasnotpart ofthe “prosecution team” with respect to thefiles in question and that these files were not in the actual or constructive possession ofthe prosecutor. “Accordingly, the defendant’s request to 82 producethe files, 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 ofthose files.” (4 RT 973; AOBat pp. 94-95.) 2. Summary of Appellant’s Legal Argument Appellant argued that this Court has madeclear that “a defendant generally is entitled to discovery of information that will assist in his defense or be useful for impeachment or cross-examination of adverse witnesses.” (People v. Memro (1985) 38 Cal.3d 658, 677; AOBatp. 95.) This axiomatic principle of discovery applies particularly to DNA evidence, as recent advances in DNAtechnology haveraisedit to a “gold standard of proof” in many cases. (AOBatp. 96.) Appellant further argued that where the prosecution presented trial 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 over to the defense any evidence that will tend to demonstrate that the DNAevidence wasnot as conclusive as the government would have the jury believe. (AOBat p. 96.) This is especially true where the DNA constituted the entire case against a defendant. (/bid.) 83 Appellant additionally argued that there was no question that the evidence sought from FSA was exculpatory to the extent that it might have revealed instances where testing by that laboratory yielded anomalousor erroneousresults and instances where techniciansfailed to follow the laboratory’s protocols and techniques. (AOBat p. 97.) Appellant argued that 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; AOBatp. 98.) Appellant argued that in this case FSA was part of the “prosecutorial team”as they werehired by the prosecutorto act on the government’s behalf. (AOBat p. 100.) Appellantalso argued that there wasnopublic policy consideration that granting the discovery would “unduly hamper the prosecution or violate some other governmentalinterest.” (People v. Avila (2006) 38 Cal.4th 491, 606; AOBat p. 100.) Finally, appellant argued that by refusing to order the prosecution to turn over the requested discovery to the defense, thetrial court violated both the due process clause of the federal and state Constitutions and the principles of statutory discovery under Penal Code section 1054 et seq. 84 (AOBatpp. 104 seq.) B. SUMMARY OF RESPONDENT’S ARGUMENT Respondent argued that appellant’s right to discovery under the United States Constitution was significantly limited by the materiality requirement set for in Brady v. Maryland (1963) 373 U.S.83 in that “the prosecutor will not have violated his constitutional duty of disclosure unless his [or her] omission is of sufficient significance to result in the denial of the defendant’s right to a fair trial.” (United States v. Agurs (1976) 427 U.S. 97, 108, disapproved on other grounds in United States v. Bagley (1985) 473 U.S. 667, 676-683; RB at p. 76.) Respondent further argued that Evidence Codesection 1054.1 “does not expand the prosecutor’s discovery obligations beyond whatis required by federal due process.” (Barnettv. Superior Court (2010) 50 Cal.4th 890, 906; RB at p. 76.) Morespecifically, respondent argued along the samelinesas did the trial prosecutor that “[e]ven if FSA’s entire history ofDNA caseworkfiles were considered readily accessible prosecution team documents, appellant has failed to demonstrate that they would have been exculpatory or impeaching.” (RB at p. 77.) Respondentstated that Mr. Keel ofFSA testified that he know ofno instances ofreported contamination occurring within 60 days of either before or after the instant testing.bid.) In 85 addition, there was other testimony that unintended transfer was “rare,” and had taken place perhaps 12 timesin over a thousand cases at FSA.(Ibid.)? Respondentcites to several other factors to “prove” that the FSA testing was accurate and not contaminated These included 1. The testimony ofFSA employees Alan Keel and Dr. Blake touting the “robust quality control procedures” in place in their laboratory.(RB at pp. 78-79.) 2. Other laboratories with no connection to FSA performed similar testing and arrived at the sameresult. (RB at p. 79.) 3. FSA witnesses testified that the autopsy swabscontained a high density of sperm, which weighed against the theory of inadvertent contamination. (RB at p. 79.) Respondentcited to People v. Salazar (2005) 35 Cal.4th 1031, 1048 for the proposition that in addition to proving that evidence must be favorable and material, it must also be suppressed by the government. Respondent arguedthat the material sought by the defense was not suppressed by the government because it was not possessed by a member 9. In other words, Mr. Keel’s testimony was an admission that unintended transfer had occurred in approximately 1 in 83, instances, or a bit over 1 percent of the time — statistic, which, if confirmed by the evidence sought by the defense, might have given jurors food for thought on thereliability ofthe astronomical match probabilities presented toit. 86 ofthe “prosecution team.” (RB at pp. 80-85.) Additionally, respondent argued that appellant did not demonstrate that FSA records were otherwise unavailable to the defense, as they could have subpoenaed them.(RB atp. 85-87.) Respondentalso claimed that for a Brady claim to succeed,the suppressed evidence mustbe “material,” which meansthat there is “a reasonable probability that, had the evidence been disclosedto the defense, the result of the proceeding would have been different. (People v. Salazar, supra, 35 Cal.4th at pp. 1049-1050.) Respondent claimedthatthere was no reasonable probability that information about the circumstances surrounding a handful of contamination events in 20 years ofunrelated FSA case work would haveresulted in a more favorable trial outcomefor appellant. (RB at 87-88.) The chief reason given for this claim was the fact that several other DNAtests done by other laboratories also obtained profiles matching appellant’s. (RB at 88-89.) C. APPELLANT’S REPLY ARGUMENT The prosecutor’s argument, whichthetrial court relied uponit its denial of discovery, wasbasically two-fold; that (1) FSA wasnotpart of the “prosecution team,” so the prosecutor had no duty, or for that matter, ability to disclose the requested information, and (2) the information 87 sought wasnot material to the defense. Neither one ofthese arguments abide by the basic principles of due process anda fair trial for the accused under either federal or California law. 1. FSA Was Part of the Prosecution’s “Team” Respondent’s argument (RB at pp. 80-85), completely missed the key elementofthe relationship ofFSA and the prsoecution. The prosecution hired FSA to do the work that is normally done by prosecutorial agencies. While certainly FSA had a non-law enforcement function outside oftheir contract with the prosecution in this case, that function wasirrelevantto his issue. The determination whethera person or entity is on the “prosecution team” does not hinge upon whetherthat person carries a badge or whether the entity is normally part of everyday law enforcement. The question is whether the person or agency has been “acting on the government’s behalf” (Kyles v. Whitley, supra, 514 U.S.at p. 437) or “assisting the government’s case.” (In re Brown (1998) 17 Cal.4th 873, 881.) There is no rational argument that can be made that FSA wasnotacting on the government’s behalf or assisting the government’s case. Holding otherwise would create a precedent that would allow the government to completely evade its constitutional and statutory discovery 88 responsibilities by “privatizing” both its forensic and investigative trial workby hiring private concerns to do government work, allowing the work product of these concernsto be usedat trial without the concomitant discovery required by the law. The creation of a pseudo-private strawman to avoid the government’s constitutional responsibilities is not otherwise permitted in the law. The police cannot avoid their Fourth Amendmentobligations by employing private citizens to engagein illegal entries and searchesfor them. (People v. North (1981) 29 Cal.3d 509, 515.) Neither may they do the same in order to avoid their obligations under Miranda.(In re Deborah C. (1981) 30 Cal.3d 125, 131.) Yet respondent asks this Court to carve out an exception to the state agent law for this one purpose. Respondent readily admitted that as a general proposition, a laboratory that performs scientific work for the prosecution is considered part of the prosecution team for discovery purposes. (RB at p. 81; In re Brown (1998) 17 Cal.4th 873, 880.) Further, “the individual prosecutor has a duty to learn of any favorable evidence knownto others acting on the government’s behalf” in a given case. (RB at p. 81; Kyles v. Whitley (1995) 514 US. 419, 437.) However, instead of acknowledging FSAas a part of the prosecution 89 team, making the prosecutor responsible for all properly requested discovery in the possession of FSA, respondent attempted to exempt the prosecution from that responsibility. It did so by stating that even though FSA mayhavebeenpart ofthe prosecution team for some purposes, it was not for other purposes, andtherefore the prosecution did not havefull access to the discovery sought from FSA.(RB at p. 82.) To support its position, respondent cited to People v. Superior Court (Barrett) (2000) 80 Cal.App.4th 1305. In Barrett, the defendant, an inmate in the California prison system, was charged with the murderofa fellow inmate.(Id. at p. 1309.) By way ofdiscovery, defendant requested voluminous discovery from the California Department of Corrections (CDC) concerning generalpolicies, procedures and data kept by the CDC concerning the operation ofits prisons. (/d at p. 1310.) The court of appeal held that while the while the information gathered by prison investigators about the murder placed the CDC on the “prosecution team” for certain purposes, they were not membersofthat team asit related to the day-to-day running ofthe prison system. Therefore, the prosecution was not responsible for gathering the discovery sought as to generalpolices, procedures, etc. (People. v. Superior Court (Barrett), supra, 80 Cal.App.4th at p 1317-1318.) Respondent equated the “hybrid” 90 status of the CDC vis a vis the prosecution in Barrett with the status ofFSA vis a vis the prosecution in the instant case, arguing that FSA was nota part of the prosecution teamsas it pertained to the discovery ofrecords oferrors and anomalies in its DNAtesting. (RB at pp. 82-83.) Respondent’s attempt to analogize FSA’srole in the instant case with that ofthe CDC in Barrett does not stand the test of logic or common sense. FSA was pro-actively brought into the instant case to assist the government in mounting a case against the appellant by retesting certain biological samples. Therefore, their role in the instant case wasasa full, albeit temporary, memberofthe prosecution team. Furthermore, unlike the records of day to day operations retained by the CDC in Barrett, evidence of shortcomingsin the laboratory’s DNA testing procedures wasdirectly relevant to the reliability of those procedures and the test result in appellant’s case. Respondent requests, in essence, that this Court adopt a position that the prosecution should be allowedto benefit from its relationship with FSA by using their inculpatory test results, yet should also be inoculated from surrendering information that might impeach those results by designating FSAas part of the “team” only as to the operation that yielded inculpatory 91 results. !° The respondent cannot haveit both ways. If the prosecution teams up with a private concern to do forensic work in a specific case, it cannot be allowed to selectively disavow that “team”status to avoid turning over exculpatory material concerning the work done. Respondentalso cited to In re Steele (2004) 32 Cal.4th 682, 697, whichstated “...information possessed by an agency that has no connection to the investigation or prosecution of the criminal charge against the defendant is not possessed by the prosecution team, and the prosecutor does not have the duty to search for or disclose such material.” Steele is completely inapposite to the respondent’s argument, and in fact strongly supports appellant’s position. In Steele, petitioner requested postconviction discovery of information from the files of the CDCR concerning the activities of the Nuestra Familia prison gang, pursuant to Penal Codesection 1054.9. The purpose of this discovery wasto assist petitioner in developing a habeas claim:that petitioner, as a state prison inmate, risked his life by providing information to authorities about that very dangerous prison gang. (Jn re Steele, supra, 32 Cal.4th at p. 689.) This 10. It should be noted that the prosecution readily complied with appellant’s same request for discovery from the other laboratories that performed DNAtesting in this case. (1 RT 202.) 92 Court madeit clear that the documentation sought was material in thatit was relevant to mitigation in the penalty phase andthat if the defense had requested this information at the time ofthetrial, the defense would have been entitled to it. Id. at pp. 697-698.) This Court stated that the scope ofthe prosecutor’s duty to disclose exculpatory information extends beyondthe contentsofhis file and encompasses the duty to ascertain as well as divulge any favorable evidence knownto others acting on the government’s behalf. (Citation omitted) As a concomitantofthis duty, any favorable evidence knownto others acting on the government’s behalf is imputed to the prosecution. The individual prosecutor is presumed to have knowledgeof all such information in connection with the government’s investigation. (Id. at p. 697.) 2. The Information Withheld From Counsel Was Material Respondent’s claim that the discovery sought was not materialalso ran contrary to the spirit and letter ofthe law. Respondent claimedthat the documents sought in discovery was not “material”in that there was no reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. (RB at p. 87.) This position was chiefly based uponthe assertion that other laboratories had done similar tests to those done by FSA andthosetests bore out the FSA 93 conclusion. (RB at pp. 88-89.) Respondent argued “[i]n short, the proof of appellant’s culpability would have been just as stark and compelling had FSA notparticipated in the case investigationat all...” (RB at p. 89.) In addition, respondent claimed that the testimony of its own witnesses “proved”that the material sought would have made no difference to the jury. Respondentcited to the testimony ofFSA employees Alan Keel and Dr. Blake, who both stated that possible inaccuracies in testing in other files had no bearing onthe testing. (RB at pp. 78-79.) To support this position, respondentalso argued that other laboratories with no connection to FSA performed similar testing and arrived at the sameresult. (RB atp. 79.) Further, respondent further argued that the FSA witnessestestified that the autopsy swabs contained a high density of sperm, which weighed against the theory of inadvertent contamination. (RB at p. 79.) What respondent failed to acknowledge was the prosecutions entire case consisted of DNA evidence. Without the DNA test results conviction would have been impossible. Yet, by this argument, respondent attempted to shield the prosecution from its discovery obligation by claiming that the evidenceit felt was highly relevantat trial to inculpate appellant but not sufficiently material to require the prosecutor to live up to its discovery obligation to reveal exculpatory documentation. Such a double standard 94 cannot be allowed to operate. Respondent, in the capacity of the prosecutor affirmatively made the decision that the DNAtesting by FSA wascritical to securing a guilty verdict. It cannot be allowed to successfully argue that evidence which mightlessen the inculpatory impact of that evidence is immaterial. According to United States v. Bagley, supra, 473 U.S.at p. 682, evidence withheld by the prosecution is material where there is a “reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A ‘reasonable probability’ is a probability sufficient to undermine confidence in the outcome(ofthe trial.)” The strongest argument that the discovery that was denied to appellant was material came from the mouth ofthe prosecutor, herself, during her summation. She madeit clear that the testimony ofthe FSA experts was very important to her case. After discussing the other evidence against appellant, including the findings of the governmental police laboratories, the prosecutor argued: It wasn’t over yet. What’s the next step? Well the nextstep is whatthey tell you to do is important to do in DNAtesting, that is to get independent testimony, independent testing from a lab that’s not involved. So they decided on Forensic Science Analysts, a lab that actually works to exonerate suspects, a lab that actually works with the Innocence Project to free wrongfully convicted people, a lab with no bias toward the prosecution, anda lab that is run by Dr. Edward Blake, 95 practically grandfather ofDNA. He’s been onit since the very beginning, was one ofthe people that helped develop the earliest test kits used in the forensic world. This is a man that has qualifications. This is a man that knows DNA.And they sent him not just one sample but two, a vaginal swab that hasn’t been examined yet. And they told him don’t do one DNAtest on each of these evidence samples, do five. All of the tests that basically are available now, do them. And we want you do those evidence samplesblindly, one at a time, not at the same time. Would have beeneasier to do them allat the same time, but we didn’t want any question of contamination or bias in the interpretation of the results. So do first the vaginal and then the rectal, and then longafter that do the blood sample ofthe defendant because, again, we do not want any question of cross- contamination or any question that there’s bias in the interpretation of these results. And that’s what Dr. Blake did. (18 RT 4251-4252.) Therefore, according to the prosecutor own position, which she shared with the jury, the FSA testing had an “independent” and “important” significance over and aboveany other evidence, forensic or not. This Court has made it clear 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, supra, 38 Cal.3d at p. 677.) In the instant case, there can be no question the discovery sought from FSA would have greatly aided in the cross- examination ofboth Mr. Keel and Dr. Blake in that it would have shown that the FSA methodology was not beyond reproach and/orthatits technicians had a history ofperforming their duties in an unprofessional 96 way. The fact that Dr. Blake minimized the significance of his laboratory’s errors (2 RT 345-346) only underscored the need to provide appellant with discovery that would have served to impeach Dr. Blake’s high opinion of the accuracy of his own laboratory. Appellant’s jury was entitled to hear that a laboratory who purported to be able to conclusively state that the statistical frequency of appellant’s DNA profile was “1 in 13 billion trillion” (16 RT 3642) had “somesort of misadventure”in its testing approximately a dozen out of one thousandtests, a rate of 1.2%. (2 RT 357.) 3. Public Policy Considerations There is no public policy exception against granting the discovery request in the instant case. While thetrial court retains the discretion to protect against the disclosure of information which might “unduly hamper the prosecution or violate some other legitimate governmental interest,” this is not one of those instances. (People v. Avila, supra, 38 Cal.4th at p. 606 [disclosure ofjuvenile record]; People v. Luttenberger (1990) 50 Cal.3d1, 21 [disclosure ofpolice personnelfiles].) If anything, there should be a public policy consideration infavor of discovery to insure the integrity of forensic testing that has becomethe “gold standard” of guilt of lack thereof in so many majorcrimetrials. As stated by the High Court, with the 97 discrimination possible in today’s testing “[i]t is literally possible to confirm guilt or innocence beyond any question whatsoever,at least in somecategories of cases.” (District Attorney’s Officefor the Third Administrative District v. Osborne (2009) 557 U.S. 52, 95-96.) Very few jurors possess the scientific acumen to fathom the intricacies of such expert testimony.It is the ultimate opinion ofthe expert as to whether the defendant “did it” that a jury uses to decide a person’s liberty,or in this case, a person’s life. It is no “fishing expedition” to gather information that is known both to exist and capable of dispelling the aura of godlike perfection that clings to practitioners ofDNA science. The fact that the gathering of this information by FSA may take some time and create some inconvenienceis irrelevant. There is no public policy consideration that places the prosecution’s convenience and ease over a defendant’s right to due process of law. FSA chose not to keep the information sought in a separate file even though such record keeping was required as “generally accepted practice in the scientific community” by variousscientific organizations, including one sponsored by the Federal BureauofInvestigation. (AOBat pp. 92-93.) Respondent also maintained that appellant was not entitled to the discovery because they could not demonstrate that the FSA records were 98 not otherwise available through the subpoenaprocess. (RB pp. 85-87.) Such a claim lacks logic in that considering the record as a whole,it is clear that ESA would have moved to quash the subpoenaandthetrial court, having foundalready that the defense’s arguments about the relevancyofthat material were “speculative” andits request forit a “fishing expedition,” would have granted such a motion. 4. Prejudice Once a reviewing court decides that there wasconstitutional error in depriving a defendant of material discovery, there is no need for any additional harmless error analysis. (Kyles v. Whitney, supra, 514 U.S.at p. 436.) Therefore, as appellant has proven that had the evidence been disclosed to the defensetheresult ofthe proceeding would be different, there can be no argumentofharmless error. (/bid.) IV. APPELLANT WASDENIED HIS CONSTITUTIONAL RIGHTS UNDER THE CONFRONTATION CLAUSE OF THE SIXTH AND FOURTEENTH AMENDMENTSTO THE UNITED STATES CONSTITUTION PURSUANTTO THE UNITED STATE’S SUPREME COURTDECISION IN CRAWFORD V. WASHINGTON A. SUMMARYOF APPELLANT’S ARGUMENT As more fully stated in the StatementofFacts at pp. 11-12 of appellant’s openingbrief, in 1996, the Contra Costa County Sheriff's 99 Laboratory forwarded certain vaginal swabs prepared at Cannie Bullock’s autopsy to Cellmark for DNA analysis. (15 RT 3439; 3441-3447.) (AOBat pp. 11-12.) Cellmark developed extracts of the sperm and non-sperm fractions for these swabs in 1996, and wasableto 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) andresulted 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, whocreated file of her testing procedures and results. (15 RT 3450.) Ms. Yates was no longer employed by Cellmark at 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 onher file reports. (14 RT 3419 et seq; 14 RT 3444; AOBat pp. 120-121.) 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 ofthe file that the microscopic analysis done by Ms. Yates indicated that the sperm deposited in Cannie Bullock’s vaginal vault was 100 undiluted and wascollected a few hours after it was deposited. (14 RT 3445; AOBat p. 121.) Dr. Word further opinedthat 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; Ibid.) Appellant argued that the admission ofthe testimony ofDr. Word as to the work done by Ms. Yates violated the confrontation clause ofthe Sixth Amendment which guaranteesto all defendants “the right to be confronted by all witnesses against them.” In Crawford v. Washington (2004) 541 U.S. 36, 59, the High Court held that Confrontation Clause permits admission of “[t]estimonial statements ofwitnesses absent from trial...only when the declarant was unavailable and only where the defendant has had a prior opportunity to cross-examine.” (AOBat p. 121.) Appellant also argued that 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 termeda “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 Amendment purposesso that the prosecutor could not admit the report without offering a witnessto testify to the truth of the 101 report’s contents. (bid; AOBat p. 123.) Appellant further argued, the High Court in Bullcoming v. New Mexico (2011) 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 whodid not sign the certification or perform or observe the test reported in the certification. (AOBat p. 123.) In Bullcoming, the defendant was charged with an aggravated Driving While Intoxicated charge. The bloodalcoholtesting was done by Curtis Caylor, whosigned the report as the “certificate of analyst.” (Bullcoming, supra, 131 S.Ct at p. 2710.) However, Mr. Caylordid not testify. Instead, the prosecutor used the testimony of Garasimos Razatos,a scientist at the same lab where the actualtesting was performed,to “qualify” Mr. Caylor’s report as a “business record,”a designation which the trial court employed to admit the report as evidence of the conclusions therein stated. (/d. at pp. 2712-2713.) The Bullcoming Court held that the evidentiary process employed by the prosecution and approved bythetrial judge was unconstitutional in that it violated the Confrontation Clause ofthe Sixth Amendment. The High 102 Court reiterated its holding from Crawford that the Confrontation Clause permitted admission of testimonial statements ofwitnesses absent from trial only where the declarant was unavailable and defendanthada prior opportunity to cross-examine him or her. (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 potential to later criminal prosecution.” (Davis v. Washington (2006) 547 USS. 813, 822; Bullcoming, supra, 131 S.Ct. at p. 2716, fn 6.) Appellant argued that it was clear from an examination ofthe facts of the instant case and the above law that the testimony ofDr. Word violated appellant’s Sixth Amendmentright to confrontation ofthe 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 Cellmark and took no role 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. (AOBat pp. 124-125.) 103 B. SUMMARY OF RESPONDENT?’S BRIEF Respondentargued that appellant’s claim has no merit because Dr. Word “provided independent expert opinions about the DNAtesting conducted at Cellmark.”As such, Dr. Word wasthe “witness against” appellant within the meaning ofthe Sixth Amendmentto the United States Constitution, and appellant had a full and fair opportunity to engage her in cross- examination. The analytical data and chain of custody information from the laboratory’s file, relied upon Dr. Word in forming her opinions, were not testimonial statements in view ofrecent decisional authorities from this Court has well as the United States Supreme Court. (RB at p. 90.) Respondentessentially argued that the analytical data produced by Ms. Yates was “non-testimonial” under Crawford, hence the confrontation clause did not apply to them. (RB at pp. 97-100; People v. Lopez (2012) 55 Cal.4th 569; People v. Dungo (2012) 55 Cal.4th 608; Williamsv. Illinois (2012) 132 S.Ct. 221.) This argument was based uponthe lack of formality or solemnity in such documentation. (People v. Lopez, supra, 55 Cal.4th at pp. 582-583, RB at pp. 97-99; People v. Dungo, supra, 55 Cal.4th at p. 612, RB at p. 99.) In addition, respondent argued the confrontation clause did not apply because the “primary purpose”ofthe data generated by Ms. Yates was not for the prosecution of an individual, but instead the purposes were varied 104 and went far beyondthe prosecution of a targeted individual. (RB at pp. 99- i) Respondentalso argued that appellant forfeited his claim because trial defense counsel made no objection to Dr. Word’s testimonyasit related to work performed by Ms. Yates at Cellmark. (RB at p. 94.) C. APPELLANT’S REPLY ARGUMENT Regarding appellant’s failure to object below, the cases cited by respondent all post-date the trial in this matter. Therefore, appellant should be allowed to raise an objection to respondent’s application ofthem even if there was no timely objection below. (See gen. People v. Jennings (2010) 50 Cal.4th 616, 652.) Further, in the last case the United States Supreme Court decided on this issue, Williams v. Illinois, the High Court was unable to arrive at a majority opinionas to the proper application ofthe confrontation clause in cases involving laboratory notes andtesting results. These facts compel this Court to reexamine the facts of this case in light of the current law. Crawford, a case involving the improper admission of a hearsay statement by petitioner’s wife, explained that the Sixth Amendment confrontation right pertained to those who give “testimony,” defined as “a solemn declaration or affirmation for the purpose ofproving somefact.” 105 (Crawford v. Washington, supra, 541 U.S. at p. 51.) Crawford offered several definitions of statements that would be testimonial in nature such as statements containedin affidavits, despositions, confessions, prior testimony, and statements that were made under circumstances which would lead an objective witness to believe that the statement would be for use at a latertrial. /d. at pp. 51-52.) However, Crawford neversettled on a single definition of “testimonial.” ([bid.) Five years after Crawford, the United States Supreme Court decided Melendez-Diaz v. Massachusetts (2009) 541 U.S. 305,the first case in what might be deemedthe extension of Crawfordto forensic testing. This case dealt with the testimonial nature of a sworn certificate of a cocaine analysis doneby a analyst not present at trial. Ud. at p. 308.) The High Court ruled that such certificates were “within the core class of testimonial statements” making them inadmissible under Crawfordin that they (1) they were a solemn declaration or affirmation made for the purpose of establishing or proving somefact, (2) that they were functionally identical to live in-court testimony and (3) made under circumstances which would lead an objective witness to reasonably believe it would be available for useata latertrial./d at p. 311.) The next “Crawford” case decided by the Supreme Court also 106 involveda forensic application. Bullcoming v. New Mexico (2011) 131 S.Ct. 2705, was a driving while intoxication case in whichthetrial court allowed the admission a “certificate of analyst” from Curtis Caylor that stated the correctnessofhis lab reports conclusion that defendant had an illegal high percentage of alcoholin this blood. Caylor did nottestify. Instead a fellow analyst was called to testify about the results. While familiar with the lab’s testing procedure, the witness neither participated in nor observed the testing done by Caylor. The High Court in Bullcoming held that the admissionattrial of Caylor’s laboratory report violated defendant’s right to confront and cross examine Caylor. (Bullcoming, supra, 131 S.Ct. at p. 2710.) The Court stated while the certificate in Bullcoming was not sworn to and notarized, as the one in Melendez was, Caylor’s statement was “formalized”in a signed document and the document madereferenceto court rulesthat would allow for its admission. (/d. at p. 2717. ) Further, the Court held that the lab reports were testimonial because their purpose wasto serve as evidencein a police investigation. The last “forensic” Crawford decided by the United States Supreme Court was Williamsv. Illinois (2012) 132 S.Ct. 221, a case heavily relied upon by respondent. Williams was a legally complex case because ofthe 107 lack of majority opinion, whose importancelies largely in the fact that it represents the last word from the High Court The factual situation in Williams was somewhat similar to the instantcase. Illinois State Police forensic biologist Sandra Lambatostestified that a DNAprofile (derived from semen on a vaginal swab ofthe rape victim) produced by an independent Maryland lab matched a DNAprofile, derived from defendant’s blood, produced by theIllinois State Police Laboratory. Justice Alito wrote the plurality opinion for the Court, joined by three other Justices. In a separate concurring opinion, Justice Thomas providedthefifth vote that won the day for the State of Illinois, but on a rationale not adopted by the plurality opinion. The plurality decided on two alternative grounds that Lambatos’s testimony did notviolate defendant’s federal Constitutional right to confrontation of the person who performed the Marylandtesting. (1) The report was not admitted forits truth but only for the limited basis of explaining Lambatos’s independent conclusion, based on her expertise, that the defendant’s DNA matched the male DNA on the swab. (Williams, supra, 132 S.Ct. at p. 2228.) Alternatively, (2) there was no confrontationright violation because the Maryland laboratory’s report wasprepared for the primary purpose of finding a dangerous rapist who wasstill at large, and “not for the primary purpose of accusing a targeted individual.” (/d. at p. 2243.) The fifth vote came from 108 Justice Thomas whoagreed with the plurality’s conclusion that Lambatos’s expert testimony did not offend the confrontation right but for a completely different reason”: that the Maryland laboratory report on which Lambatos relied “lacked the solemnity of an affidavit or deposition” and therefore was not “testimonial.” (Ud at 2260; Dungo, supra, 55 Cal.4th 619.) In Williams, five justices specifically repudiated the concept that the report was not hearsay because it was not admitted for the truth. (Williams v. Illinois, supra, 132 S.Ct. 2264 et seq [dissent of Justice Kagen joined by Justices Ginsberg, Scalia, and Sotomayor]. ) Further, the alternative analysis of the Williams plurality, (that the report failed to satisfy the primary purposetest), also was rejected by a majority ofthe 9 justices. (It wasonly Justice Thomas’s vote, on the groundsthat the report lacked formality, that allowed the Williams Court to come down onthe side of the state. Ibid.) The Kagan dissent called the plurality’s not-for-the-truth rationale as “a simple abdication to state law labels,” stating “No wonder whyfive Justices rejected it.” (/d. at p. 2272.) It further rejected the plurality’s opinion that the Cellmark report was not testimonial. Justice Kagan succinctly yet powerfully stated “Have we not already decidedthis case,” referring to the Court decision in Bullcoming v. New Mexico, referenced above. Justice Kagan rightfully saw no difference between the relevant facts ofBullcoming and Williams. (Id. at p. 2267.) 109 Justice Kagan also madeclear that the plurality’s test ofneeding a targeted individual to satisfy the primary purpose test does not bear the weight of logic and that “it is anybody’s guess” where suchas test “came from.” (Williams, supra, 132 S.Ct. at p. 2273.) As stated by Justice Kagan “*_.it makes not a whit of difference whether at the time of the laboratory test, the police already have a suspect.” Such is most definitely so in the instant case where there was no other conceivable purpose for Ms. Yates to do the testing other than to eventually arrest and prosecute the proper suspect. Williams leaves the legal community suspended in mid-air as to the relation between scientific testing and the confrontation clause. Williams provided a decision that, while binding Mr. Williams, had no such precedential effect on any othercase.as no five justices could agree to why the Maryland report was or was not testimonial. As such, any reliance on Williams by respondentis misplaced. Therefore, as stated by Justice Corrigan in her Dungo dissent “the question remains: For the purposes ofthe Sixth Amendmentconfrontation clause, can a statementin an uncertified document be formal enough to qualify as testimonial?” (Dungo, supra, 55 Cal.4th at p. 636.) That is certainly the question in the instant case. 110 Subsequent to Williams, this Court decided People v. Dungo (2012) 55 Cal.4th 608. The facts ofDungo differed from the facts ofMelendez- Diaz and Bullcoming in that they did not deal with forensic testing done by persons other than the witness,butrather, the use of the notes of the attending pathologist by a testifying pathologist who wasnot presentat the autopsy. (Id. at pp. 612-615.) This Court ruled that because the hearsay in question involved only statements describing the attending pathologist’s statements regarding his anatomical and physiological observationsofthe conditions ofthe body, his statements lacked the “solemn declaration or affirmation for the purpose ofproving somefact” required by Crawford and its progeny to make a statement “testimonial” for the purposes of the confrontation clause. (Id. at p. 617; Crawford v. Washington, supra, 541 US. at p. 59.) Further, Dungo heldthat in addition to the lack of formality, the statements ofthe attending pathologist were not testimonial because they were not made under circumstances which would lead an objective witness to reasonably believe that would be available for later useattrial. (See Crawford v. Washington, supra, 541 U.S. at pp. 51-52; People v. Dungo, supra, 55 Cal.4th at pp. 619-620.) This Court held that autopsies were statutorily mandated and were employed for any numberofother reasons than the prosecution of a criminal defendantand as such the “primary 111 purpose”ofthe autopsy report was simply “an official explanation of an unusual death, and such official records are ordinarily non-testimonial.” (Dungo, supra, at p. 621.) Respondent’s extensive reliance on Dungoto argued that the testing of Ms. Yates was “non-testimonial,”’ hence outside the mandates ofthe confrontation clause is mistaken. In the instant case, Ms. Yates’s testing went far beyond the mere recording of observations. It involved a formal process that involved the creation of complex microbiological samples and profiles. Further, there can be no questionthat, unlike in Dungo,this work wasdonefor the “primary purpose”ofprosecuting an eventual defendant for the death of Cannie Bullock. In fact, there could be no other purpose. Therefore, in spite of respondent’s arguments to the contrary, there - is no reasoning in Crawford, Melendez-Diaz, Bullcoming, or Dungothat supports its position. Respondent wasincorrect when it claimed that both federal andstate court precedent favors his argument. Thereality is that Williams has left the law in a state of flux. Appellant therefore urges this Court to follow the lead of Justice Kagan to return to the United States Supreme Court precedent of Melendez-Diaz and Bullcoming and apply the confrontation clause in full effect to the report of Ms. Yates. 112 V. THE PROSECUTOR VIOLATED APPELLANT’S RIGHT TO DUE PROCESS OF LAW BY IMPROPERLY MISLEADING THE JURY IN HER ARGUMENT Appellant respectfully restates and relies upon his Argument madein his Opening Brief, AOB, supra, at p. 126. VI. FORENSIC SCIENCE ASSOCIATES USE OF THE IDENTIFILER STR TEST KIT WASANEW SCIENTIFIC PROCEDURE AND THE TRIAL COURT ERRED IN REFUSING TO GRANTA FIRST-PRONG KELLY/FRYE HEARING TO DETERMINE WHETHERTHEUSEOF 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 Appellant respectfully restates and relies upon his Argument made in his Opening Brief, AOB, supra, at p. 130. In addition, appellant respectfully requests that this Court strike footnote 40 ofthe Reply Brief. (RB at p. 124.) It is a gratuitous piece of evidence outside the record, both literally and temporally, presented for the sole purpose of weakeningthe trial testimony of defense witness Mark Taylor’s trial testimony. The issue in the Kelly hearing was whether use of the new primers and linkers in the mix had been validated and shown to 113 work. Marc Taylor’slater use ofthe system is not part ofthe record before the trial court and is therefore irrelevant to its decision. Nor does it qualify as a change in the landscape regarding the general acceptance of Identifiler. The bare fact ofMr. Taylor’s use of a version of Identifiler ten years after the hearing says nothing about the validity or general acceptanceofthe system employed by Contra Costa County in 2003. VII. THE TRIAL COURT VIOLATED APPELLANTS RIGHT TO DUE PROCESSOF LAW, A FAIR TRIAL AND RIGHT TO A FAIR DETERMINATION OF GUILT AND PENALTY BY ALLOWING THE PROSECUTOR TO PRESENT EVIDENCE THAT APPELLANT WASDEFINITELY THE SOURCE OF THE SPERM FOUNDINSIDE CANNIE BULLOCK’S BODY A. SUMMARYOF APPELLANT’S ARGUMENT During the guilt phase of the trial, appellant’s counsel made an oral motion that the trial court enter an order to bar the prosecution’s DNA experts from testifying that the sperm recovered from Cannie’s body originated from appellant. (15 RT 3403.) Counsel argued that while said experts could testify as to the rarity of appellant’s genetic profile among the general population, they should not be allowedto definitively state that the sperm recovered from Cannie was appellant’s. (/bid. The trial court ruled in favor of the prosecution and allowed testimony that appellant was the donor 114 ofthe sperm found in Cannie Bullock’s body. (16 RT 3571.) Ultimately, David Stockwell, of the Contra Costa County Criminal Laboratory, testified that because ofthe rarity statistics, he was able to form an opinion “to a reasonable degree ofscientific certainty,” that the source of the sperm foundin the victim wasappellant. (16 RT 3644.) In his opening brief, appellant argued that Brown v. Farwell (9Cir. 2008) 525 F.3d 787, the Ninth Circuit Court ofAppeals addressed this issue, which has become commonlyreferred to as “source attribution,” and forbade evidence that the source latent sperm wasa particular individual. (AOBat p. 132-133.) B. SUMMARY OF RESPONDENT’S ARGUMENT Citing to People v. Nelson (2008) 43 Cal.4th 1242, 1262, fn 1, People v. Cua (2011) 191 Cal.App.4th 582, and People v. Johnson (2006) 139 Cal.App.4th 1135, 1146, fn 10. (RB at p. 142 et seq.) Respondent argues that the law is established that experts can testify to an opinion that identified a particular person as the source ofDNA evidence. C. APPELLANT’S REPLY ARGUMENT While People v. Nelson stated that some authorities have found in favor of “source attribution,” this Court has never stated such to be the case. The central authority upholding such a holding is People v. Cua, supra, 191 115 Cal.App.4th 582. Cua is inadequate authority for such a premises. In Cua, the court’s holding was issued in a case in which no objection was madein thetrial court to the analyst’s opinion and no record was madeofthe scientific and legal controversy surrounding the question whether such “source attribution” testimony is proper. In Cua, the defendant was charged with a double murder. The evidence against him included criminalists’ testimony about the results ofDNA testing on blood found in the victims’ home and car. Most ofthe DNAtesting results were presented with correspondingstatistics,i.e., the probability of a random match between the evidence sample andthat ofthe defendant or one ofthe victims. However, one criminalist testified simply that Cua wasthe single source ofDNA found on the seat of the car and that one ofthe victims was the single source ofDNA ona ring found in the car. Mr. Cua’s trial counsel did not object to any ofthe DNA testimony. Mr. Cua’s appellate counsel, anticipating that any claimsoferror in admission ofthe DNA evidence would be forfeited by trial counsel’s failure to object to them, argued on appealthat trial counsel had provided ineffective assistance by failing to challenge the DNA evidence,including the criminalist’s testimony identifying Mr. Cua and the victim as the sole sources of the DNA onthe car seat and the ring. The Court ofAppeal, did, 116 in fact, find the error claimsforfeited, and it also rejected the ineffective assistance of counsel claims. However, the court did not stop there, but went on to hold, in a decision which it certified for publication,that it is not necessarily error for an analystto testify to an opinion that a given DNA sample came from oneperson,to the exclusionofall others. The court acknowledgedthat it could not determinethe propriety of the analyst’s source attribution testimony in the case before it because the record did not contain any statistical evidence of the random match probabilities ofthe two samplesin question. The court did not specify the circumstances under which a conclusion of identity would be permissible, nor couldit, because there is considerable disagreement amongscientists about this very point. The Cua case was not an appropriate vehicle on the admissibility of testimonyattributing a DNA sampleto a sole source. The question whether DNAprofiles are sufficiently rare that it is appropriate to say that a particular profile is unique is far from being resolved, and the Court of Appeal’s ruling upholding such sourceattribution testimony was based on a record lacking any discussion ofthe concernsofscientists that source attribution of a DNAprofile is inaccurate and misleading. Mostscientists with expertise in the issues surrounding forensic 117 DNAtyping believe thatit is inappropriate to permit source attribution of profiles. (See, e.g., Balding, D.J., When can a DNA profile be regarded as unique?, Science and Justice 1999: 39(4): 257-260; Biederman,A.,etal., Decision theoretic properties offorensic identification: Underlying logic and argumentative implications, Forensic Science International 177 (2008) 120-132; Buckleton, J., and Triggs, C., Relatedness andDNA:are we taking it seriously enough?, Forensic Science International 152 (2005) 115- 119; see also Cole, S., Forensics without uniqueness; conclusions without individualization: a new epistomology offorensic identification, Law, Probability and Risk (2009) 8, 233-235 [discussing the problems with source attribution in forensic science in general].) Onereasonfor scientists’ concerns is that the random match probability statistic, which can suggestthat a profile is so rare as to be unique, does not necessarily reflect the probability ofa match in the real world. The random match probability statistic (RMP) is actually an artificial number, the calculation of the probability that another identical profile will occur in a hypothetical population consisting entirely of unrelated individuals from a limited set of racial groups. (See United States y. Jenkins (D.C. 2005) 887 A.2d 1013, 1018.) The real world, however, includes many people whoare related to one another; scientists do not know to what extent the existence of related individuals may affect the real 118 probability of the existence oftwo matchingprofiles. Studies of offender databaseshave,in fact, revealed the existence ofprofiles matching at up to twelve loci at frequencies substantially higher than the random match probability would predict. Another concern is that identifying a profile as unique ignores not only the existence of relatedness but also the weight ofnon-DNA evidence in the case andthe possibility of error or contaminationin the collection, processing, and analysis of samples. Some experts on probability and statistics have observed that courtroom testimony thata profile can be uniquely attributed to one person inevitably involves inferential steps based on assumptions beyond whatis logically warranted by the analysis process, deliberately and illogically suppresses the uncertainty inherent in the probabilistic model represented by the RMP,substitutes the witness’s own assumptionsand belief about the truth for the evidence, and invadesthe province ofthe factfinder. (Biederman,A., et al., Decision theoretic properties offorensic identification: Underlying logic and argumentative implications, Forensic Science International 177 (2008) 120-132. The appellate courts of California, including this Court, have long recognizedthat the statistical match probability is integral to the 119 determination of the significance of a DNA match. (See, e.g., People v. Venegas (1998) 18 Cal.4th 47, 82; People v. Barney (1992) 8 Cal.App.4th 798, 817.) The National Academy of Sciences endorsedthis view in its landmark report on forensic science, “Strengthening Forensic Science in the United States: A Path Forward” (2009). As noted below, the NAS was critical of the tendency of analysts in many other forensic sciences to couch their opinions as conclusions that two exemplars matched to the exclusion of all others. The report emphasized that such conclusionsofidentity are questionable and often not supported by available research and data, and concluded that “the concept of ‘uniquely associated with’ must be replaced with a probabilistic association, and other sources of the crime scene evidence cannot be completely discounted.” (National Academy of Sciences Report, “Strengthening Forensic Science in the United States: A Path Forward” (2009), p. 184.) Permitting a DNA analyst to testify that a profile is unique, especially sincea statistic is available, would contravene both the prior reasoning of this Court and the recommendationsofthe NAS. Whethertherule requiring a numerical statement ofthe likelihood of a match should be replaced with opinion testimony that a DNA sampleis uniqueis a question that should be considered in a case in whicha full record is made onthe issues attending such a change. No such record was madein this case becausetrial counsel did not object to the admission of 120 the analyst’s testimony. Furthermore, the ruling ofthe Court ofAppealthat such testimony may be permissible provideslittle or no guidancein future litigation. The court did not state that the source attribution in the case before it was proper, and it could not do so in any eventin the absence of any evidence ofthe random match probability for the two samples. It explicitly declined to establish criteria for when an expert can state an opinion that a DNA sample belongsto a particular individual to the exclusion ofall other. Instead, the court wrote, “We hold only that the expert is not necessarily precluded from doing so and that the defendant here has failed to meet his burden to show that the court erred in not excluding the evidence sua sponte.” (People v. Cua, supra, 191 Cal.App.4th 582, 601) VII. DUE TO THE TRIAL COURT’S IMPROPER INSTRUCTION TO THE JURY PANEL, APPELLANT WASDEPRIVEDOF HIS RIGHT TO A FAIR DETERMINATION OF THE PENALTY UNDER THE EIGHTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION Appellant respectfully restates and relies upon his Argument made in his Opening Brief, AOB, supra, at p. 141. 121 IX. APPELLANT’S RIGHT TO DUE PROCESSOF 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 ERROR IN ADMITTING EVIDENCE OF NONSTATUTORY AGGRAVATIONIN THE FORM OF APPELLANT’S PRIOR ACTS OF SEXUAL TOUCHING A. SUMMARYOF APPELLANT’S ARGUMENT The facts pertinent to this issue are the same as those central to the ArgumentII ofthe opening andreply briefs. In 1992 and 1997, appellant wasconvicted oftwo non-violent sexual assaults on minors. ArgumentII arguedthatthe trial court committed reversibleerror in the guilt phase by allowing the prosecutor to present evidence of the convictions andtheir surrounding facts under Evidence Code section 1108 and 1101 (b) in the guilt phase. The argumentherein pertains to the trial court’s error in allowing the prosecutor to use these incidents as aggravating factors in the penalty phase as aggravating evidence undersection 190.3 (a). Appellant argued that evidence that does not apply to one ofthe listed aggravating factors of section 190.3 is inadmissible before the penalty jury in the prosecution case in chief (AOBat p. 147; People v. Boyd (1985) 38 Cal.3d 762, 775, citing to People v. Easley, 34 Cal.3d 858, 878.) Section 190.3 permits the prosecution at the penalty phase of a capital case to 122 introduce evidence of “[c]riminal activity by the defendant whichinvolved the use or attempted use of force or violence or the express or implied threat to use force or violence.” (Section 190.3 (b).) However,it does not permit the prosecution to introduce evidence ofnon-violent crimesthat did notresult in a felony conviction. (Section 190. 3. (¢ ); People v. Boyd, supra, 38 Cal.3dat pp. 772-773.) In the instant case, the trial court explicitly acknowledged that neither the 1992 nor 1997incidents referenced in ArgumentIT involved violence or the threat thereof, hence, were inadmissible under section 190.3 (b). (19 RT 4370.) However, the trial court ruled that these incidents were “circumstances ofthe offense” of the murder of Cannie Bullock. (Jbid.) Appellant argued that while the “circumstance ofthe offense” extends to “that which surrounds materially, morally, or logically the crime” (People v. Blair (2005) 36 Cal.4th 686, 749), there are no cases reported that would even suggest that the factor (a) may be extended to non-violent, completely unrelated offenses that took place 13 and 18 years, respectively, after the murder. (AOBatp. 151.) Appellant concluded his argumentbystating the improperruling of the trial court deprived him ofhis right to be sentenced according to the California statutory scheme, resulting in a manifest prejudice. 123 B. SUMMARY OF RESPONDENT’S ARGUMENT Respondentarguedthat the trial court did not abuse its discretion in determining that evidence of appellant’s “child molest” offenses of 1992 and 1997 was admissible in the penalty phase for two reasons, summarized as follows. 1. The Non-Violent Crimes Were Circumstances of the Offense Pursuant to Penal Code section 190.3 (a) Respondent argued that the two non-violent crimes were admissible in that {T]hey could be considered circumstances ofthe underlying capital crime within the meaning ofPenal Code 190, factor (a). The events were relevant and highly probative of appellant’s identity as Cannie’s rapist and killer by demonstrating his propensity to sexually assault children. As such, they were circumstancesofthe offense. (RB at p. 168.) Respondentargued that this Court had “adopted an expansive reading”ofthe factor (a) language in Penal Code section 190.3. (RB at p. 176; People v. Smith (2005) 35 Cal.4th 334, 352.) It further argued that within the meaningofthis factor, “penalty phase evidence is permitted beyond the immediate temporal and spatial circumstances ofthe crime to also encompassthat which surrounds, materially, morally, or logically the crime.” (RB at p. 176; People v. Edwards (1991) 54 Cal.3d 767, 833.) In 124 other words, respondent argued that “penalty phase evidence is admitted to the extent it gives rise to reasonable inferences concerning the circumstances of the crime and defendant’sliability.” (RB at p. 176; People v. Riggs (2008) 44 Cal.4th 248, 321-322.) Citing to People v. Smith, supra, 35 Cal.4th 334, respondentalso argued that the two molestation cases were relevant to the penalty phase because they provided evidence of appellant’s mental state as to sexual contact with children. (RB at p. 176-177.) Further, respondentcited to People v. Ramos (1997) 15 Cal.4th 1133, 1170 to stand for the proposition that evidence that explains a defendant’s identity, motive, intent, or methods, may be considered in aggravation pursuant to section 190.3 (a). (RB at p. 177.) Respondent also argued that under People v. Nicolaus (1991) 54 Cal.3d 551, 581-582, evidence of events that took place either before or after the capital crime can be admissible. (RB at p. 177.) Respondent concludedthis section of its argumentbystating that “the Colorado events demonstrated appellant’s propensity to sexually assault children, particularly those known to him and to whom he had opportunistic access.” (RB at p. 178.) 125 2. The Colorado Molestations Qualified as Rebuttal Character Evidence Respondent pointed out multiple instances of appellant’s penalty phase witnessestestifying as to appellant’s general “good character”and specifically, his respectful attitude toward around children and women. (RB at pp. 169-173.) Respondent argued that “as a direct and proportionate response to defense witnesses’ testimony about appellant’s courteous and respectful treatment of women, and about how his character was inconsistent with raping andkilling a younggirl, the People properly addressed the Colorado child molest convictions cross examination and then the implication ofthe evidencein its closing.” (RB at p. 179.) Respondentfurther argued that the law governing the admission of such evidence is controlled by People v. Valdez (2012) 55 Cal.4th 82, 169-170 whichstated Rebuttal evidence is relevant and admissible if it tends to disprove a fact of consequence von which the defendant introduced evidence. The scope of proper rebuttal depends on the breadth and generality of the direct evidence. Evidence presented or argued as rebuttal mustrelate directly to a particular incident or character trait the defendant offers on his own behalf. When a defendant places his character at issue during the penalty phase of a capitaltrial, the prosecution may respond by introducing character evidence to undermine defendant’s claim that his good character evidence weighs in favor of mercy and to present a more balanced picture of defendant’s personality. (RB at pp. 179-180.) 126 Respondent argued that “the references to the Colorado child molestation cases arose during the direct and cross-examination of the defense cases. To the extent that the child molest convictions were referenced by the People, such evidence wasdirectly responsive to defense witness testimony about appellant’s good character.” (RB at p. 180.) In addition, respondent arguedthat “by continuing to deny that he raped and murder Cannie during his penalty phase testimony, appellant placed his own character into issue.” (RB at p. 181.) In summary, respondentstated that the Colorado evidence was considered by the jury only to present “a more balanced picture of appellant’s personality for the jury,” a permissible usage for such testimony under People v. Valdez, supra, 55 Cal4th at p. 170. (AOBat p. 181.) 3. Appellant Has Forfeited His Claim Respondentarguedthat “Insofar as the prosecutor referenced appellant’s Colorado child molest offenses to impeach appellant’s character witnesses to and rebut defense character evidence, and the jury’s consideration ofthe evidence for that purpose, appellant has forfeited that claim of error. While appellant arguedat trial that the Colorado child molest events could not be considered as circumstancesofthe capital crime underfactor (a) ofPenal Code section 190.3, he did not oppose the use of 127 the Colorado crimesto rebut his own good character evidence.” (RB at p. 174.) C. APPELLANT’S REPLY ARGUMENT 1. The Non-Violent Crimes Were Not Circumstancesof the Offense Pursuant to Penal Code Section 190.3 (a) Not a single one ofrespondent’s citations support their stated contention that crimes completely unrelated to the capital offense that took place 13 and 18 years, respectively, after said offense, constitute circumstancesofthe capital offense, under section 190.3 (a). No decision from this or any other federal or state court in California that even hintsat such a broad reading of section 190.3 (a). Whileit is true that this Court has expanded the temporal range of the circumstancesofthe offense beyond the immediate commission ofthe murder, it did not extend them indefinitely to any event that occurred at any time that has some arguably probative connection to the capital crime. Each ofthe cases respondent cited to support its position involved an act or acts by a defendant that occurred close in time to the capital crime and that wasdirectly related to the way the crime was committed. None of these cases involved temporally distant acts that had nothingatall to do with the charged capital crime, except perhaps to show appellant’s general 128 attitude about a particular class ofpeople. Nor did any ofthese cases involve incidents so temporally removed from the capital crimeas those admitted in Mr. Cordova’s trial. A review ofthe cases cited by respondent clearly supports appellant’s position. In People v. Lewis (2006) 39 Cal.4th 970, 1051-1052 (RB at p. 178), this Court confirmed as a factor (a) “circumstance of the offense” defendant’s terrorizing his murder victims not long before their murder. In People v. Nicolaus, supra, 54 Cal.4th at p. 581 (RB at p. 177), this Court allowed cross-examination of defendant into the anti-Christian philosophy ofNietzsche as a circumstances of the offense when the victim wasofa particular sect of Christianity that defendant despised. In People v. Osband(1996) 13 Cal.4th 622, 708, this Court held that defendant’s drug addiction at the time ofthe crime could be considered a circumstanceofthe offense whenthe prosecutorial theory was that the felony murder robbery was committed to steal money to pay for defendant’s drug habit. (RB at at p. 177.) In People v. Edwards, supra, 54 Cal.3d at p. 893 (RB 176-177), this Court held that a “massive butfutile” air and ground search for defendant by law enforcement immediately after his commission ofthe capital crime was a factor (a) circumstance ofthe offense. Similarly, in People v. Riggs 129 (2008) 44 Cal.4th 248, 321-322 (RB at p. 176), this Court allowed evidence as to the difficulty in solving the charged murderas a circumstanceofthe offense. In People v. Ramos, supra, 15 Cal.4th 1133, also cited by respondent (RB at p. 177), this Court stated that evidence that defendant told his cellmate that he shot the victims and enjoyed hearing them beg for their lives was relevant to factor (a) in that it was relevant to defendant’s lack of remorse during the commission ofthe crime. Respondent’s citation to People v. Smith, supra, 35 Cal.4th at p. 352 is similarly unavailing to its position. In Smith this Court held that the prosecution wasentitled to call an expert to testify the general psychological nature of a sexual murder of a young child (the type of crime committed by defendant), and how certain items found in defendant’s possession correspondedto said nature. This Court held that such testimony qualified under factor (a) in that it “surround(ed) materially, morally, or logically” the crime. (Jbid.) However, in the instant case there was no evidence showing any sort ofpsychological connection between the Colorado incidents of touch and the rape-murder of Cannie.It is pure speculation that the touching incidents say anythingat all about the instant crime and the prosecutorfailed to call any expert who could makethis connection. 130 In makingits argument, respondenthaslost sight of the meaning of “aggravating factors”as it pertains to the penalty phase of a death penalty trial. According to CALJIC 8.88 “an aggravating factoris any fact, condition or event attending the commission ofa crime whichincreasesits severity or enormity or adds to its injurious consequences over and above the elements ofthe crimeitself.” (Emphasis added; and see People v. Adcox (1988) 47 Cal.3d 207, 269.) This Court has never suggested that evidence of a non-violent crime completely unrelated to the charged offense that occurred over a decadeafter the charged offense could be considered an aggravating circumstance. They provided absolutely no insightinto the capital, “increase[] its severity or enormity,” or “add[]to its injurious consequences.” They crime, nor did they provide any information that aggravated that crime. There was nothing about the Colorado crimes that “surrounds materially, morally, or logically” the crime. (See People v. Tully (54 Cal4th 952, 1042.) Respondent also claimed that the evidence ofthe Colorado crimes should be admissible as a circumstance ofthe capital offense because they “demonstrat(e) (appellants) propensity to sexually assault children, particularly those known to him and to whom he had opportunistic access. Asrespondent would haveit, appellant’s sexual predatory tendencies, as evidenced on the 1990's, were proof of his criminal motive and methodsin 131 1979 and corroborated his identify as the perpetrator, especially in view of the special circumstancesalleged (and proved) in this case...” (RB at p. 178.) This position is both factually and legally incorrect. Factually, even if such a remote crime could ever be legally be considered a circumstance ofthis offense, the facts of the instant case would not allow for the operation ofsuch a legal doctrine. As discussed more fully in ArgumentII, the Colorado crimes are so fundamentally dissimilar to the capital crime that no aspectoftheir commission can be of any way relevantto the capital offense. The argumentthat a person who improperly touched the Colorado children waslikely the same person whobrutally murdered and raped Cannie ignoresthe reality of such crimes. Asstated in ArgumentII, the fundamental feature of the instant crime wasbrutal violence, while the fundamental feature of the Colorado crimes was a surreptitious touching. This argumentis akin to claiming that temporally distant acts ofnon- violent thefts should be admissible in the penalty phase of a felony-murder robbery underfactor (a) because they show a propensity to steal, or that acts of children disrespect toward police can be used to show hostility toward police in the penalty phaseof a police killing capital case. Notonly is the evidence of the Colorado crimesfactually irrelevant 132 to the instant crime, California death penalty law forbidsits introduction. This Court has madeit clear that general acts ofbad conductare not admissible in the prosecutions penalty phase case-in-chief unless they fall into one of the statutory aggravating factors of section 190.3. As stated in in People v. Avena (1996) 13 Cal.3d 394, 439 In Boyd, we examined the 1978 death penalty law and concluded that not only must the jury “decide the question of penalty on the basis of the specific factorslisted in the statute,” but the evidence admitted at the penalty phase must be “relevant to those factors.” (Citation omitted.) Although evidence in mitigation is not limited to statutory factors (Citation omitted), “[e]vidence 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 consequenceto the determination of the action, and [would] therefore [be] irrelevant to aggravation.” (Citation omitted.) Thus, “[aggravating] evidenceirrelevantto a listed factor is inadmissible”(citation omitted), unlessit is to rebut defense mitigating evidence admitted pursuantto section 190.3, factor (k).” (Citation omitted.) As the Colorado offenses do not fall under any of the statutory factors, they are not relevant to the jury’s determination ofpenalty. Respondent’s claim that the Colorado crimes should be considered factor (a) circumstances underthe California death penalty statute because they show “propensity” has nobasis in the law. As stated in ArgumentII, as a general axiom, uncharged offenses are not admissible to show a defendant’s propensity to commit a charged offense unless there is specific 133 statute allowing for such an inference. (RB at p. 54.) Section 1108 allows the inference ofpropensity to be made undercertain circumstances in the determination of guilt in a sexually related case. However, there is no law that permits the use ofpropensity evidence in the penalty phaseofa capital trial if it does not otherwisefit into the statutory scheme. 2. The Evidence of the Colorado Crimes Was Not Admitted as Rebuttal Evidence, But Used in Rebuttal Only After the Court’s Ruling Admitting It Under Factor(a) Respondentalso claimedthat in additional to being circumstances of the offense, the Colorado crimes were admissible as rebuttal to the evidence of good character presented by appellant’s witnesses. (RB at pp. 179-182.) While respondentis correct that in certain cases evidence of bad character can be used to rebut “good character” evidence presented under section 190.3 (k), it has briefed a factual scenario that does not exist in the instant case. The evidence ofthe Colorado crimes were not admitted to rebut appellant’s evidence of “good character” toward children. The ruling that the evidence would be admissible was made and the evidence was heard by the juryprior to any evidence presented by appellant in the guilt phase. As stated above,prior to the commencement of any penalty phase testimony, the trial court ruled that this evidence could be considered by the jury in the penalty phase as circumstancesofthe capital offense under 134 factor (a). Therefore, whether appellant decided to present any “good character” evidence or not, the evidence ofthe Colorado crimes would have been considered by the jury. The evidence of the Colorado crimes werenot rebuttal in that it was not admitted to present a “more balanced picture of [appellant’s] personality.” (People v. Valdez, supra, 55 Cal.4th at p. 170.) Instead, the Colorado crimes served as an improperattack on appellant’s general character, falling outside of any aggravating factor, which,in essence, appellant had to rebut through his own evidence. This question of the orderofpresentation is not a difference without a distinction.It is critical to this discussion. The early ruling that the jury would be permitted to consider the Colorado crimes as evidence onthe issue of penalty necessarily altered the defense’s strategy with regard to the presentation of evidencein mitigation. Had the judge sustained the defense’s objection to the evidence, counsel would undoubtably have avoided presenting evidence that would have invited evidence ofthose crimes as rebuttal. As it was, the alternative that remained to the defense was to present testimony whichit hoped would counter the bad character evidence ofthe Coloradocrimes.It did not invite rebuttal; it responded to evidence already in the record.It is circular and disingenuousto ignore the effect ofthe initial error in admitting the Colorado crimes evidence and arguethat it was proper rebuttal to evidence offered defensively to mitigate 135 the harm caused by the admission of the evidence in thefirst place. The theory for permitting rebuttal evidenceis not that it provides a statutory factor, but that it undermines defendant’s claim that his good character weighs in favor ofmercy. (People v. Rodriguez (1986) 42 Cal.3d 730, 791; People v. Daniels (1991) 52 Cal.3d 815, 882-883.) People v. Valdez, supra, 55 Cal.4th at p. 169, a case respondent heavily relied upon, stated “[r]ebuttal evidence is relevant and admissible if it tends to disprove a fact of consequence which defendant has introduced into evidence(in the penalty phase.)” Valdez at pp. 169-170 further stated that “[w]hen a defendant places his character at issue during the penalty phaseofa capitaltrial, the prosecution may respond by introducing character evidence to undermine the defendant’s claim that his good character weighed in favor of mercy and to present a more balanced picture ofthe defendant’s personality.” (See People v. Loker (2008) 44 Cal.4th 691, 709.) As stated in Loker, “[t]he scope ofproper rebuttal is determined by the breadth and generality of the direct evidence.” (Ibid.) Under the above definitions and limitations, it is clear that the evidence ofthe Colorado cases was not rebuttal evidence at all. It was not introduced to counter appellant’s evidence of good character as appellant had notyet put his character in issue when this evidence was admitted.It 136 wasthe prosecution that put appellant’s character into issue, not appellant. Oncethe trial court madeits final ruling allowing the prosecutor to present the Colorado evidence (19 RT 4457), it was appellant who was rebutting respondent’s aggravating evidence in order to present a more balanced picture of appellant’s character, not the other way around. Thetrial court error could not be any clearer. 3. Appellant Has Not Forfeited His Claim Respondent claimed that “While appellate argued attrial that the Colorado child molest events could not be considered as circumstance of the capital crime under factor (a) ofPenal Code section 190.3, he did not oppose use of the Colorado crimes to rebut his own good character evidence.” (RB at p. 174.) In its Motion to Exclude Aggravating Evidence (8 CT 1991et seq), the defense madeit clear that appellant was objecting to the admission of evidence ofthe Colorado crimesin that they were not relevant to the penalty phase because they were not proper aggravation. This was reiterated at the hearing in this matter. (19 RT 4370.) Further, prior to the guilt phase, appellant strongly objected to the admission ofthe Colorado crimes for any purpose. (See ArgumentII, supra, AOB.) No further objection was needed whenthe prosecutor subsequently referredto that 137 evidence in her corss-examination of defense witnesses. “An attempt to attack the merits of damaging testimony to which a party hasc unsuccessfully objected has long been recognized as a necessary and propertrial tactic, and it may not be deemed a waiver of a continuing objection.” (People v. Sam (1969) 71 Cal.2de 194, 207.) Furthermore, there was neither need nor opportunity for appellant to have raised an objection to a theory of admission that did not exist until respondentcreatedit years after the trial ended. As such, respondent’s argumenthas no merit. 4. The Error Was Not Harmless The admission ofthe Colorado crimes was unquestionably an error in federal constitutional law and reversal is mandated unless respondent can prove the error harmless beyond a reasonable doubt. (Chapmanv. California, supra, 386 U.S.at p. 24; People v. Cage, supra, 40 Cal.4th at pp. 991-992.) Error is considered “harmless” whenit does not contribute to the verdict becauseit is “unimportant in relation to everything else the jury considered on the issue in question, as revealed in the record.” (Yatesv. Evatt (1991) 500 U.S. 391, 403, disapproved on other groundsin Estelle v. McGuire (1991) 502 U.S. 62, 72, fn 4.) Obviously, to makethis 138 determination, the reviewing court must look to the evidence that the jury actually heard in a given case. ([bid.) Recently, People v. Jackson (2014) 58 Cal.4" 724,Justice Liu, in his separate and concurring and dissenting opinion reviewed the current state ofthe beyond a reasonable doubt standard for harmless error. He stated that the beyond as reasonable doubt standard required before federal constitutional error can be said to be harmless “has long been understood to indicate the very high level ofprobability required by the Constitution to deprive an individualoflife or liberty.” Ud. at p. 792; Victor v. Nebraska (1994) 511 U.S. 1, 14.) As Justice Liu stated, while the standard of “beyond a reasonable doubt”is not one of absolutely certainty, it is intended to be “very stringent: it is not satisfied so long there is a doubt based upon reason.” (People v. Jackson, supra, 58 Cal.4th at p. 792; Jacksonv. Virginia (1979) 443 U.S. 307, 317.) As observed by Justice Liu “the stringency ofthis standard reflects not only its protective function but also its amenability to principled application.” (People v. Jackson, supra, 58 Cal.4th at p. 792.) Accordingly, Justice Liu opined that under Chapman, a reviewing court “need not calibrate its certitude to some vaguely specified probability, instead the court must be convincedthat the error was harmlessto the 139 maximallevel ofcertainty within the realm ofreason, a \evel that admits no reasonable doubt.” (bid, emphasisin originaltext.) Obviously, the burden falls upon the party who benefitted by the error, the prosecution. (Chapman, supra, 386 U.S. at 24.) Therefore, as stated by Justice Liu “it is not defendant’s burden to show that the error did have adverse effects; it is the state’s burden to show that the error did not have adverse effects.” (Jackson, supra, at p. 793 (emphasis in original text).) Because it may be difficult to determine whethera particular error contributed to the jury’s verdict given the counterfactual nature of the inquiry, “the allocation of the burden proving harmlessness can be outcome determinative in some cases” (Gamachev. California (2010) 131 S. Ct 591, 593.) Respondenttries to minimize the seriousness ofthe error by conceding that the Colorado offenses involved only “brief, nonviolent touching of the victim,” in order to argue that they were “insignificant”in light of the facts ofthe assault and murder. Butthere is nothing insignificant about allegations that a defendantis a child molester. The response ofthe community andits representatives to child molesters ofall degrees, makes it impossible to avoid the realization that such evidenceis inherently inflammatory. Our society’s outrage can be tracked in the ever 140 more punitive laws enacted, by the Legislature and by popular vote through the initiative process, against such offenders and the vocabulary used to designate them. By the community’s fiat, they have been imprisonedfor life as “sexually violent predators,” released into the community subject to lifelong registration requirements,identified in offender databases available to anyone, and subjected to residency restrictions so draconian that many ex-offenders are made homeless because there is no roof under which society will allow them tolive. Byallowing the jury to consider the Colorado crimesin aggravation, appellant was brandedas a serial sex offender. Considering the implications of such a branding in today’s society, respondent cannot meetits burden. Assuch, the judgment of death should be reversed. X. THE TRIAL COURT DENIED APPELLANT DUE PROCESS OF LAW WHENIT INSTRUCTED THE JURY THAT THE IMPACT OF APPELLANT’S EXECUTION ON HIS FAMILY SHOULD BE DISREGARDED UNLESSIT ILLUMINATES SOMEPOSITIVE QUALITY OF APPELLANT’S BACKGROUND OR CHARACTER Appellant respectfully restates and relies upon his Argument made in his Opening Brief, AOB, supra, at p. 154. 141 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 ERROR IN ADMITTING EVIDENCE OF NON-STATUTORY AGGRAVATIONIN THE FORM OF APPELLANT’S THREAT AT A PRISON ANGER MANAGEMENTSESSION TO KILL A DEPUTY PROSECUTOR A. SUMMARYOF APPELLANT’S ARGUMENT In its Motion Regarding Defense Penalty Evidence in Mitigation, filed on February 1, 2007 (8 CT 2068 et seq), the prosecutor proffered as aggravating evidence an alleged threat that appellant made while appellant was in the custody of the Colorado Department of Correction. (8 CT 2074.) This threat was made during a therapy session with his therapist, Lori Clapp. (/bid.) Appellant objected to the use of this statement, and a hearing washeld on February 1, 2007. At that hearing, the trial court held that the actions of the appellant did not amountto an aggravating factor under section 190.3 (b) and forbid the prosecution from using this evidence. (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) 11. From the context ofthe record,it is clear that the witness said “seen” not “been.” 142 mistreat any woman orbe violent with any woman....” (20 RT 4622.) On cross-examination, the prosecutor asked Ms. Cordovaifshe 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 character in issue, evidence of this alleged threat exceeded boundsofpermissible rebuttal. (20 RT 4637.) Thetrial court overruled counsel’s objection. (20 RT 4637.) Appellant argued that the trial court was mistaken whenit held that evidence of appellant’s statement that he wanted to kill the deputy district attorney was admissible to rebut evidence that appellant treated women with respect. (AOBat p. 160.) Appellant acknowledged that once defendant has put his character into issue at the penalty phase by presenting evidence thereof, the prosecutor may rebut that mitigating evidence with evidence that manifests to the jury a more accurate picture of defendant’s character. (AOBat pp. 160-161.) However, as appellant argued, the prosecution is not allowed to go beyond the aspects of the defendant’s backgroundactually introduced by him, which was what happened in this case. (AOBat p. 161.) The evidence presented by appellant was limited to the very narrow issue ofhow appellant treated womenin public settings. However, 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 143 disposition that extended to homicidal thoughts. (AOBat p. 160.) Appellant also argued that the communication to Lori Clapp was privileged under Evidence Code section 1012, the patient-psychotherapist confidentiality statute. B. SUMMARYOF RESPONDENT’S ARGUMENT Respondentfirst argued that appellant forfeited his claim on appeal becauseattrial defense counsel argued exclusively that the evidence in question was inadmissible as factor (b) aggravating evidence but not thatit was inadmissible because it exceeded the boundsofrebuttal evidence. (RB at p. 206.) Respondentalso argued thatthe trial court has “‘broad discretion’”” to allow rebuttal evidence andits decision to do so is reviewed for an abuse of discretion and will not be overturned ‘palpable abuse.’” (RB at p. 207) Asthere was no abuseofdiscretion in receiving evidenceasto the threat to the Colorado prosecutor, there was noerror. (Jbid.) Respondent additionally argued that even defense counsel admitted that the evidence in question was admissible to rebut appellant’s mitigating evidence of good character.” 12. This argumentcan be disposed of out of hand. Counsel neversaid this. During a hearing regarding the admissibility ofthis evidence underfactor (b), counsel did state that the evidence “may” be admitted as rebuttal. However,it was clear from the context ofthe argument that counsel was not conceding anything, but rather 144 (Ibid; 21 RT 4898.) Respondent proceeded to recount the “good character” evidence appellant presented. (RB at pp. 207-212.) This included testimony from Abe Cordova, appellant’s brother, that all the women who knew appellant “loved him,” and that he could not believe that appellant could commit such a crime. (RB at p-p. 207-208.) Vicki Cordova, Abe’s wife,testified that appellant was very respectful to her and was“like a magnettothegirls.” (RB at p. 206.) She also expressed disbelief that he could have committed the instant crime. (RB at pp. 208-209.) Further, Kelly Cordovatestified that appellant treated her like a wife should be treated and was goodto kids, in spite of appellant having assaulted her 15 years before thetrial. (RB atpp. 198-199.) Respondent arguedthat the threat to the female prosecutor was properly introducedto rebut appellant’s testimony that he was a “kind,” “charming,” and “happy-go-lucky” sort who could not have committed the capital offense. (RB at pp. 206-207.) Respondentalso argued that appelliant’s threat was nota privileged communication. (RB at pp. 212-214.) Firstly, appellant never raised the claim of privilege at trial. (RB at p. 212.) Secondly, the psychotherapist- was urging the court to focus on the (b) factor argument. 145 patient privilege does not exist when “the psychotherapist has reasonable cause to believe that the patient is in such mental or emotional condition as to be dangerousto himself or to the person or property of another and that disclosure ofthe communication is necessary to prevent the threatened danger.” (RB at p. 213.) Thirdly, respondent argued that the record is “largely devoid of information”as to whether or not the anger management class actually constituted a scenario under which the psychotherapist- patient privilege applied. (RT at pp. 212-214.) Finally, respondent argued that any error committedbythetrial court was harmless. (RB pp. 214-216.) C. APPELLANT’S REPLY ARGUMENT 1. Appellant Did Not Forfeit His Claim Respondentis factually incorrect in its assertion that appellant “exclusively” objected to the admission of appellant’s statement to Lori Clapp on section 190.3 (b) groundsand not on the ground thatit could not be usedas rebuttal evidence.It is true that such wasthe nature of the objection at the penalty phase pre-trial hearing, with appellant prevailing on his argument. (AOBat p. 159; 18 RT 4390-4397.) However, during appellant’s penalty phase case, witness Vicki Cordovatestified, in part, that she had never seen appellant mistreat any woman or be violence with her. 146 (AOBat p. 159; 20 RT 4622.) On cross-examination, the prosecutor asked the witness whether she knew anything about appellant’s “threat” to kill a female district attorney. (AOBat p. 159; 20 RT 4636.) Counsel immediately objected to this question, stating that evidence of the alleged threat exceeded the boundsofpermissible rebuttal. (AOBat p. 160; 20 RT 4637.) Therefore, appellant preserved the issue on appeal by making the propertimely objection. 2. The Trial Court Abused Its Discretion in Permitting the Prosecutor to Question Defense Witnesses About the Threatening Comments Asin Reply BriefArgument IX, supra, respondent essentially base its argument on People v. Valdez, supra, 55 Cal.4th at pp. 169-170, which stated “[r]Jebuttal evidence is relevant and admissible if it tends to disprove a fact of consequence which defendant has introduced into evidence(in the penalty phase.)” Valdez further stated that “[wJhen a defendant placeshis character at issue during the penalty phase ofa capitaltrial, the prosecution mayrespondby introducing character evidence to underminethe defendant’s claim that his good character weighed in favor ofmercy andto present a more balanced picture ofthe defendant’s personality.” (See People v. Loker (2008) 44 Cal.4th 691, 709.) 147 However,as stated in Loker, “[t]he scope ofproper rebuttal is determined by the breadth and generality of the direct evidence.” (Loker, supra,44 Cal.4th at p. 709.) Not any “good character” evidence presented by a defendant “will open the door”to any “bad character” evidence that the prosecutor can “dredge up.” (People v. Rodriguez (1986) 42 Cal.3d 730, 791, fn 24.) The relevance of evidence of character or a character trait to the penalty phase determination in a capital case is not whether defendant acted in accordance with that trait but whetherthe trait should be considered as a mitigating factor. (People v. Visciotti (1992) 2 Cal.4th 1, 69, fn 37.) Therefore, only rebuttal evidence that serves to counter the position that a particular charactertrait of the defendant’s is mitigating is admissible. Thecharacter traits presented by appellant’s witnesses basically consisted of his popularity with womendueto the positive way he treated them in public and family type settings. In addition, some ofthe witnesses indicated that knowing appellant’s personality, they could not believe her would rape and murder a younggirl. (RB at pp. 207-210.) The evidence of the comment made about the deputy prosecutor had little to do with these charactertraits in the sense that they did very little to reduce their value as mitigators. The alleged “threat” against the female district attorney was neither made directly to her nor in an indirect matter that would cause these 148 commentsto be transmitted to her. In addition,it is highly speculative that by this single incident, appellant was in any way demonstrating a lack of respect for women,in general. As madeclear by the evidence,thesetting of these comments was an anger managementgroupinside a prison, where the participants were encouragedto expresstheir frustration.(AOBatp. 162.) Also, as stated, appellant’s comments were abouthis prosecutor, who happened to be a woman, not a woman who happenedto be a prosecutor. (AOBatp. 161.) It is entirely consistent for an inmate, who generally respected women, to have made such comments, out of frustration, about the person whoput him in prison. Therefore, there is nothing in appellant’s statements about, but not to, the prosecutor, that would serve to lessen the mitigating value of appellant’s aforementioned witnesses. By improperly framing the admission ofthis isolated comment of anger andfrustration in termsofrebuttal evidence to appellant’s factor (k) evidence, respondent was able to circumventsection 190.3 prohibition against general “bad character” evidence that did notfit into one ofthe statutorily defined aggravating categories. (People v. Avena (1996) 13 Cal.3d 394, 439.) 149 3. Appellant’s Threat Wasa Privileged Communication Appellantrepeats its argumentas stated in this brief, Argument1X at pp. 162-163 asifmore fully stated herein. In addition, appellant asks the Court to consider Mr. Cordova’s own description of the circumstances surrounding his remark during the anger management group therpay session, as quoted by respondentin its brief: She [Clapp] asked me what happenedin court. Shec knew I wasgoing to court.; And I told her what happenedandthat’s whenI told her I was mad enough that I coulds have killed the bitch. Q. Did you expect that was not going any further? A. No. Everything that-we signed a piece ofpaper that says everything wesay is confidential. (RB at pp. 203-204; 20 RT 4846.) 4. The Trial Courts Error Was Not Harmless Appellantrestates his legal position on harmless error propounded in Argument IX, supra, at pp. 119-121.) The improper admission of appellant’s comments to Ms. Clapp cannot be considered harmless in that they branded him as a person who would threaten to kill a public official for simply doing her duty. Both separately and in combination with the error in allowing before the penalty jury evidence of the Colorado crimes, appellant was deprived of his Eighth and Fourteenth Amendmentrightsto a fair determination ofpenalty and, as such, the death judgment should be 150 vacated. CALIFORNIA’S DEATH PENALTY STATUTE AS INTERPRETED BY THIS COURT AND APPLIED AT APPELLANT’S TRIAL, VIOLATES THE UNITED STATES CONSTITUTION XII. APPELLANT’S DEATH PENALTY SENTENCEIS INVALID BECAUSE SECTION190 .2 IS IMPERMISSIBLY BROAD Appellant respectfully restates and relies upon his Argument made in his Opening Brief, AOB,supra, at p. 163. XI. 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 Appellant respectfully restates and relies upon his Argument made in his Opening Brief, AOB,supra, at p. 165. XIV. CALIFORNIA’S DEATH PENALTY STATUTE CONTAINS NO SAFEGUARDSTO 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 THE FIFTH, SIXTH, EIGHTH, AND FOURTEENTH AMENDMENTSTO THE UNITED STATES CONSTITUTION Appellant respectfully restates and relies upon his Argument made in his Opening Brief, AOB, supra,at p. 166. 151 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 SAFEGUARDSTO CAPITAL DEFENDANTSVIOLATES THE CONSTITUTIONAL GUARANTEE OF EQUAL PROTECTION OF THE LAWS Appellant respectfully restates and relies upon his Argument made in his Opening Brief, AOB, supra, at p. 176. 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 Appellant respectfully restates and relies upon his Argument madein his Opening Brief, AOB, supra, at p. 176. XVII. THE CUMULATIVE EFFECT OF GUILT AND PENALTY PHASE ERRORS WASPREJUDICIAL Appellant respectfully restates and relies upon his Argument madein his Opening Brief, AOB, supra, at p. 177. 152 CONCLUSION Accordingly, appellant respectfully requests that the judgment be vacated. March 13, 2015 Respectfully submitted, Glen Niemy, Esq Attorney for Appellant P.O. Box 3375 Portland, ME 04104 207-699-9713 gniemy@yahoo.com State Bar # 73646 153 CERTIFICATE OF COMPLIANCE I certify that the attached Appellants Reply Brief uses a 13 point Times New Roman font and contains 34, 680 words. March 13, 2015 Kh Glen Niemy, Esq Attorney for Appellant 154 Glen Niemy, Attorney at Law P.O. Box 3375 Portland, ME 04104 (207) 699-9713 State Bar # 73646 Attomey for Joseph S. Cordova 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) ) ) ) DECLARATION OF SERVICE Re: People v. Joseph Cordova Superior Court 040292-5 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 addressis P.O. Box 3375, Portland, ME 04104. I served a copy ofthe attached Appellant’s Reply 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 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 Costa County Superior Court c/o Appeals Section 725 Court St Martinez, CA 94533 Each envelope, was then on March 16, 2015, sealed and placed in the United States mail, at Portland, Maine, County of Cumberland, the county in which I have myoffice, with the postage thereon fully prepaid. I declare under the penalty ofperjury and the laws of California and Mainethat the foregoing is true and correct this March 16, 2015 at Portland, ME. a” Glen Niemy