PEOPLE v. RICES

Appellant’s Opening Brief

Cal.November 18, 2014

~~? SUPREME COURT COPY. “ERED IN THE SUPREME COURT NOV 18 2014 OF THE STATE OF CALIFORNIA’ Frank A. McGuire Clerk Deputy THE PEOPLE OF THE STATE ) $175851 OF CALIFORNIA, ) ) San Diego County Case No. Respondent, ) SCE266581 ) V. ) ) JEAN PIERRE RICES, ) ) Appellant. ) ) APPELLANT’S OPENING BRIEF Appeal From The Judgment Of The Superior Court Of The State Of California, San Diego County Honorable Lantz Lewis, Judge CLIFF GARDNER (State Bar No. 93782) RUDOLPH J. ALEJO (State Bar No. 284302) 1448 San Pablo Avenue Berkeley, CA 94702 Tel: (510) 524-1093 Fax: (510) 527-5812 Casetris @aol.com Attorneys for Appellant Jean Pierre Rices DEATH PENALTY TABLE OF CONTENTS INTRODUCTION .......... 0.2eeeete teen ne eee eee 1 STATEMENT OF THE CASE ............ 02. ccc e c eeec een ene eens 7 STATEMENT OF FACTS .........0 2... cece ee cee teen eee tenet en eeeee 9 A. Introduction ........ 02... eee ecee eee e nent eens 9 B. The Charged Crime ...... 0.2... ccccece ee eens 9 Cc. Ageravating And Mitigating Circumstances ............2-.- 00 000s 11 ARGUMENT..... 06... ccc cee ee een eee e eee eee n terete eee eee 19 I. GIVEN THAT DEFENDANT WAS BLACK, AND JURORS WERE DECIDING IF HE SHOULD LIVE OR DIE, THE TRIAL COURT COMMITTED PREJUDICIAL ERRORIN REFUSING TO STRIKE JURORS WHO CANDIDLY ADMITTED THEIR BELIEF THAT BLACKS WERE MORE VIOLENT THAN WHITES ...............-.---20065 ... 19 A. The Relevant Facts .... 2.2... 2. eeeeeeens 19 1. The voir dire process 21... 2.0.0 e c eee een ee 19 2. Thetrial court refused to strike prospective jurors T.T. and L.M. even though they believed blacks were more likely to be violent than whites 2.2... . 0... eeeceeee teens 21 B. BecauseProspective Jurors T.T. And L.M. Both Believed Blacks Were More Violent Than Other Races, The Trial Court Erred In Refusing To Discharge Them For Cause From A Case In Which They Would Have To Decide If Jean Pierre Rices -- A Black Man -- Should Live Or Die ... 2.00... eee ee eee eee eee e eee ee eeee 25 1. The trial court’s refusal to discharge prospective jurors T.T. and L.M. was improper ......... 0... e ee cee eee eens 26 2. Defense counsel properly preserved this issue for appeal. ....... 29 BECAUSETHE MAIN THRUST OF THE DEFENSE CASE WAS THAT MR.RICES’S CHILDHOOD AND UPBRINGING CONSTITUTED MITIGATING EVIDENCE CALLING FOR A SENTENCE LESS THAN DEATH, THE TRIAL COURT COMMITTED PREJUDICIAL ERROR IN REFUSING TO STRIKE JURORS WHO EXPLICITLY ADMITTED THEY WOULD NOT CONSIDER CHILDHOOD EVENTSIN MITIGATION... 34 A. The Relevant Facts ......... 2.0... ce eeeee eee eee eee 34 B. TheTrial Judge Erred As A Matter Of Law In Refusing To Discharge For Cause Prospective Jurors Who Said They Would Not Consider Childhood Evidence In Mitigation ............. 0.0.00. ce eee ee eee 37 THE TRIAL COURT COMMITTED PREJUDICIAL ERRORIN PRECLUDING DEFENSE COUNSEL FROM FULLY VOIR DIRING JURORS TO DETERMINE IF THEY WOULD CONSIDER LIFE ASAN OPTION IN DECIDING MR.RICES’S PENALTY ..................-26. 41 A. The Relevant Facts ......... 02... cece cece eee ee eee eee eee 4l B. The Trial Court’s Repeated Refusal To Permit Defense Counsel To Ask Prospective Jurors If They Would Consider Life In A Case Where Defendant Had Prior Convictions For Attempted Murder, Carjacking AndPossession Of A Shank Requires A New Penalty Phase .......... 44 1. The area defense counsel sought to probe has long been recognized as an area which hasa substantial impact upon the sentencing determination .............. 0.0 ee eee ce eee eee 48 2. Thestate cannot prove thatthe trial court’s improperlimitation on defense counsel’s voir dire was harmless ...............-- 51 BECAUSE THE TRIAL COURT ERRONEOUSLY EXCUSED PROSPECTIVE JUROR WADHAMS WHO REPEATEDLY AGREED SHE WOULD ADDRESS THE QUESTION OF PENALTY BY LISTENING TO ALL THE EVIDENCE, REVERSAL OF THE PENALTY PHASEIS REQUIRED ....... 00. cece cece cence cece ce ebe eben ene en eeneeenens 53 A. The Relevant Facts ccc nee nee eee te ee eee eee eee ence eee eee eeee 53 il VI. B. The State May Not Excuse A Prospective Juror For Cause Based On Her Personal Views About The Death Penalty Unless It Affirmatively Establishes The Juror Will Not Follow The Law ................... 58 THE “SUBSTANTIAL IMPAIRMENT” STANDARD FOR EXCLUDING JURORSIN CAPITAL CASESIS INCONSISTENT WITH BOTH THE STATE AND FEDERAL CONSTITUTIONAL RIGHTS TO A JURY TRIAL 64 A. Introduction «0.0.0.0... 0... eccee e ee een e eee 64 B. Development Of The Adams Test For Discharging Jurors Based On Their Views Of Capital Punishment ............... 2.0.0.0 e eee eee 65 C. The Supreme Court’s Modern Sixth Amendment Precedent Focuses Not On Identifying And Accommodating Competing Interests, But On The Historical Understanding Of The Rights Embraced By The Sixth Amendment AndThe Intent Of The Framers .....................-. 67 D. The Framers Intended The “Impartial Jury” Guarantee To Prohibit Jurors From Being Struck Based On Their Views Of The Death Penalty .. 0.2...eeecee en eee eee e eee een eee 75 THE TRIAL COURT COMMITTED PREJUDICIAL ERROR, AND VIOLATED MR.RICES’S STATE AND FEDERAL CONSTITUTIONAL RIGHTS, BY FORCING HIM TO TRIAL IN A COMMUNITY WHERE A SUBSTANTIAL PORTION OF THE JURY POOL HAD BEEN EXPOSED TO HIGHLY INFLAMMATORYPRETRIAL PUBLICITY ............... 84 A. The Relevant Facts .......... 00.2 cece cece cece ete eee eee 84 B. Because ThePervasive Pre-Trial Publicity Prevented The Court From Seating An Impartial Jury, Reversal Is Required ................... 92 1. The legal standard ........ 20.0... occ cece ee eee 93 2. The pre-trial publicity here created a perception that Mr. Rices was a “dangerous” “animal,” and that the murders were “cold- blooded,” “execution-style” slayings .......... see e eee eee 99 iti Vil. VIL. MR. RICES WAS DENIED HIS RIGHT TO CONFLICT-FREE COUNSEL ~WHEN HIS LAWYER WAS FORCED TO CHOOSE BETWEEN BECOMINGAWITNESS AT TRIAL OR KEEPING THE CASE AS COUNSEL .... 02.ece ce eee ete eet n eee ee eens 104 A. The Relevant Facts ......... 0.0... cece cece eee eee eee 104 B. Because The County Fee Agreement Forced Trial Counsel To Make Critical Tactical Decisions Relating To The Penalty Phase While Laboring Under A Conflict Between The Client’s Interest And His Own, Reversal Is Required ....... 0.0... cece eee ene 112 1. The county fee agreement forced counsel to decide what mitigation evidence to present while laboring undera conflict of interest 22...Leecee eee ete eee 114 2. The conflict requires reversal because there were other strategies available to defense counsel besides the “food tray” theory, and it is reasonably likely the conflict impacted counsel’s decision making process ............-..00002005- 118 Because The County Fee Agreement Created A Conflict Of Interest Which Prevented Counsel From Discharging The Duties Required In A Capital Penalty Phase, Mr. Rices Was Deprived Of His Federal And State Rights To A Reliable Penalty Phase .....................05. 121 The Case Must Be Remanded Because Although The Trial Court Should Have Been Aware Of The Conflict, The Court Failed To Conduct Any Inquiry At All. 2.0...eeeee eee 123 Because Defense Counsel Failed To Move To Withdraw From Representation, Reversal Is Required .............2. 02. e eee eeeee 125 ALTHOUGH THE TRIAL COURT PROPERLY APPOINTED “INDEPENDENT COUNSEL” TO ADVISE MR. RICES WHETHER HE SHOULD GO TO TRIAL WITH A LAWYER WHOTHE ASSIGNING _ AGENCY BELIEVED WAS NOT QUALIFIED TO HANDLE A CAPITAL CASE, THE COURT ERRED IN FAILING TO HOLD A HEARING AFTER LEARNING THAT THE LAWYERIT HAD APPOINTED MAY HAVE SUFFERED FROM A DISABLING CONFLICT OF INTEREST .......... 131 iv XI. A. The Relevant Facts ........ 0... cc cece ce eee eee tetas 131 B. Because The Trial Court Was On Notice Of The Potential Conflict, It Was Required To Hold A Hearing ............ 2... ce eee eee eee 139 C. Mr. Rices Did Not Waive His Right To Conflict-Free Counsel ....... 141 D. A RemandIs Required To Determine Whether Mr. Levine Was Suffering From A Conflict Of Interest .............. 02.2 e ee eee 144 THE TRIAL COURT ERRED IN DENYING MR.RICES’S MOTION TO REPLACE COUNSEL AFTER LEARNING THAT COUNSEL HAD,IN APPARENT COMPLIANCE WITH RULE OF PROFESSIONAL CONDUCT3-100(B), REPORTED MR. RICES TO JAIL AUTHORITIES.. 147 DEFENSE COUNSEL RENDERED INEFFECTIVE ASSISTANCEIN FAILING TO OBJECT WHENMR.RICES’S JURY WAS CALLED BACKINTO SESSION TO HEAR CO-DEFENDANT’S LAWYER PRESENT EVIDENCE IN AGGRAVATION ........ 06... e ee ee eee 152 A. The Relevant Facts .......... 00. e cee eee ences 152 B. Upon A Proper Objection, The Trial Court Would Have Been Required To Excuse Mr. Rices’s Jury Prior To Presentation Of Miller’s Defense Case .......... 0.00. cece ee eee eens 161 l. Because there wasnotactical reason for defense counsel to wantthe Rices jury to hear Miller testify, and because a timely objection would have preventedit, trial counsel’s failure to object to seating of the Rices jury during Miller’s testimonyfell below an objective standard of reasonableness .............. 161 2. There is a reasonable probability that absent counsel’s error, the result of the penalty phase would have been different ...... 173 ONCE IT BECAME CLEAR THAT MILLER WAS GOING TO TESTIFY IN FRONT OF THE RICES JURY, THE TRIAL COURT’S FAILURE TO PROVIDE THE RICES DEFENSE TEAM WITH A COPY OF MILLER’S PRE-TRIAL “FREE TALK” WITH POLICE VIOLATED MR.RICES’S RIGHT TO THE EFFECTIVE ASSISTANCE OF COUNSEL ............ 176 XI. A. Introduction ........ 0... cece ccc ce ce cee eee ee ene nees 176 C. A Trial Court’s Action May Cause Even The Most Diligent Of Counsel To Provide Ineffective Assistance ............ 0.00 cece eee 179 D. The Court Induced Deprivation Of Counsel Requires Reversal ....... 184 THE TRIAL COURT DEPRIVED MR. RICES OF COUNSEL AT A CRITICAL STAGE OF THE PROCEEDINGS WHEN, WITHOUT CONSULTING COUNSEL, THE COURT RESPONDED EX PARTE TO A QUESTION FROM THE JURY ABOUT SPECIFIC EVIDENCEIN THE CASE ooo cc cccc cece cece cee bebe cbc btbbebbbtbesnbentbeetinns 191 A. Introduction .. 0... cc ecee ee cee ee ne cee eee eee eens 191 B. The Relevant Facts . 2... cece cccececcucccucccecuccucuceeeees 192 C. The Trial Court’s Ex Parte Contact With The Jury Violated Due Process And The Sixth Amendment And Requires A New Penalty Phase ..... 2.2... cece eee ee ee eee eee eet tenn eee 200 1. Whena deliberating jury asks a question directly related to the facts or law involvedin a case, the ensuing communication with the jury is a critical stage of the criminaltrial at which counsel isrequired .. 2... eeee eee 201 2. Theerror requires reversal without a showing of prejudice, but even if harmlesserror analysis is applied, reversal is required here given the importance of the evidence .................. 204 D. The Trial Court’s Ex Parte Contact With The Jury Violated Mr. Rices’s State And Federal Constitutional Rights To Presence ........ 212 E. The Trial Court’s Failure To Notify Defense Counsel Of The Jury’s Question Violated The Reliability Requirements Of The Eighth Amendment ........ 0... 2c ceceeee teenies 213 Vi XH. XIV. XV. THE PROSECUTOR VIOLATED THE EIGHTH AMENDMENT IN ASKING THE JURY TO SENTENCE MR.RICESTODIE BASED,IN PART, ON PRIOR FELONY CONVICTIONS AND CRIMINAL CONDUCT COMMITTED WHEN MR. RICES WAS A CHILD .......... 217 A. Introduction ......... 0. cee ee cee ce ee ee cee ee cence teen ees 217 B. Evolving Standards Of Decency, And Recent Supreme Court Authority, Preclude The State From Asking A Jury To Sentence A Defendant To Die Based On Acts He Committed When He Was A Child .......... 0 cee eee te eee eee eee eees 219 C. The Erroneous Admission Of Acts Committed When Mr. Rices Was A Child Was Not Harmless Beyond A Reasonable Doubt ............. 230 THE TRIAL COURT COMMITTED PREJUDICIAL ERROR IN PERMITTING THE PROSECUTOR TO RELY ON NON-STATUTORY AGGRAVATIONIN URGING THE JURY TO SENTENCEMR.RICES TO DEATH...... 0.0.0.0eceeeeee eee e eens 231 A. The Relevant Facts ..... 0... 0. cee eeeece eee nee 231 B. Pursuant To People v. Murtishaw (1981) 29 Cal.3d 733, Evidence Of Future Dangerousness “Is Not Relevant To Any Of The [Aggravating] Factors” Listed In The California Death Penalty Scheme ............ 232 THE TRIAL COURT VIOLATED THE EIGHTH AMENDMENT IN PRECLUDING DEFENSE COUNSEL FROM ASKING THE JURY TO CONSIDER THE IMPACT OF AN EXECUTION ON THE DEFENDANT’S FAMILY ..... 0.0.0ccce eee eens 240 A. The Relevant Facts 1.2... 0... cc eeeec eee eee 240 B. Because The Legislature Intended That Capital Defendants Be Permitted To Rely On The Impact Of An Execution On Their Loved Ones, The Trial Court’s Order Forbidding Such Argument In This Case Was Fundamentally Improper ......... 20.0.2... ce eee eee eee ee eee 242 Vii 1. Because the term “mitigation” used by the electorate in section 190.3 had a then-recognized meaning permitting consideration of the impact of a sentence on the defendant’s family, the electorate is presumed to have intended the same meaning in section 190.3 22... cee eee ee ee eee 244 2. Section 190.3’s explicit provision that a defendant can introduce “any matter relevant to . . . sentence” independently permits a defendantto rely on the impact of a death sentence on the defendant’s family .......eee eee eee ee eee ee eee ees 249 The Eighth Amendment Requires That In Cases Where The State Is Permitted To Rely On The Impact Of A MurderIn Asking For Death, The Defendant Should Be Permitted To Rely On The Impact Of An Execution In Asking For Life ............ 0.0.2. ce cece ee ee eee 253 The Trial Court Exclusion Of Evidence And Argument About The Impact Of An Execution On Mr. Rices’s Family Requires A New Penalty Phase ............- 0c cece eee ee eee eee teenies 259 XVI. THE DEATH SENTENCE MUST BE REVERSED BECAUSE THE JURY WAS PERMITTED TO (1) RELY ON ACCOMPLICE ANTHONY MILLER’S PRIOR STATEMENTS TO POLICE ABSENT ANY CORROBORATION AT ALL AND (2) CORROBORATE MILLER’S IN-COURT TESTIMONY WITH HIS OWN PRE-TRIAL STATEMENTS. . 266 A. B. The Relevant Facts ......... Leen eee Lecce eee eee tent eee eeaes 266 Under State Law, The Trial Court Erred In Failing To Instruct The Jury That It Could Not Find Aggravation Based On (1) Miller’s Testimony Absent Corroboration Independent of Miller And (2) Miller’s Prior Statements To Police Unless They Were Corroborated ............. 272 1. Thetrial court was obligated to instruct the jury that it could not rely on Miller’s testimony absent corroboration which was “independent of Miller’s statements or testimony.” .......... 272 2. Thetrial court was obligated to instruct the jury that it could not rely on Miller’s pretrial statements to police absent corroboration ....... 2... cee eee eee eee ee ete ne eens 274 Vili 3. The exception to the accomplice corroboration requirementset forth in People v. Easley (1988) 46 Cal.3d 712 and its progeny does not apply to this case 6.6...eeeeee 280 C. The Trial Court’s Failure To Instruct The Jury It Could Not Rely On Miller’s Testimony And Prior Statements In Aggravation Unless They Were Properly Corroborated Also Violated Federal Law ............ 285 D. Because Of The Significance Of Miller’s Aggravating Evidence To The State’s Case, The Failure To Provide A Corroboration Instruction Requires A New Penalty Phase ............ 0.0 eee e eee eee eee 287 E. EvenIf The Trial Court Had No Sua Sponte Duty To Give Proper Corroboration Instructions, Trial Counsel’s Failure To Request Such Instructions Constituted Ineffective Assistance of Counsel .......... 290 1. Counsel’s failure to request proper corroboration instructions constituted deficient performance ...........-....--002006. 291 2. Reversal of the penalty phase is required becausethere is a reasonable probability that but for counsel’s error, at least one juror would have voted for life ............-.... 0-002 e eee 293 XVII. THE TRIAL COURT’S ERRONEOUS DENIAL OF THE NEW TRIAL MOTION REQUIRES A NEW PENALTY PHASE ..................04. 295 A. The Relevant Facts ........ 02-20. ceeeee te eee eee 295 1. The gang evidence priorto and at trial ..............-...0.. 295 2. The “bragging” evidenceprior to and at trial ................ 296 3. The newtrial motion ............ 0... e eee eee cee eee eee 300 B. Standard Of Review ............eee eee teen eee eee es 302 C. The Trial Court’s Improper Denial Of Defense Counsel’s New Trial Motion Requires A New Penalty Phase ...............00 200 e eee 304 1. The gang evidence .......... 0. e eee eee cee eee eee 304 1X 2. The bragging evidence ......... 0... eee eee eee eee ees 310 XVII. BECAUSETHE TRIAL COURT WAS PRESENTED WITH CONFIDENTIAL INFORMATION BOTH ABOUT THE CRIME AND MR. RICES, AND BECAUSE THE TRIAL COURT REFUSED TO ALLOW MR.RICES ACCESS TO THIS EVIDENCE, A NEW . SECTION 190.4 HEARING IS REQUIRED .................006. 313 A. The Relevant Facts ........... 0.00 c ccc eee cee eee eee 313 B. The Trial Court’s Access To Confidential Information -- Which The Trial Court Itself Characterized As “Inculpatory” And Which Mr. Rices Could Not Confront, Deny Or Rebut-- Violated The Eighth Amendment And The Due Process Clause ................-. 315 XIX. BECAUSE THE CALIFORNIA CAPITAL SENTENCING SCHEMEIS. UNCONSTITUTIONAL IN NUMEROUSRESPECTS,MR. RICES’S DEATH SENTENCE MUST BE REVERSED ........... 00.2 e eee eens 318 CONCLUSION .......... 0. ceeeeette nee tenes 321 TABLE OF AUTHORITIES FEDERAL CASES Abdul-Kabir v. Quarterman (2007) 550 U.S. 233) 0... eee eee eee 260 Adamsv. Texas (1980) 448 U.S. 38 2.0... eee ee ee eee 26, 28, 58, 59, 60, 61, 62, 66 Ake v. Oklahoma (1984) 470 U.S. 68 2.1...eee eee eee 252 Allen v. Buss (7th Cir. 2009) 558 F.3d 657) 2... ee ec ee eee ee 261 Apprendi v. New Jersey (2000) 530 U.S. 466 ... 6.6... eee eee eee eee eee 70 Baze v. Rees (2008) 553 U.S.35 2.eteeens 75,77 Beck v. Alabama (1980) 447 U.S. 625. «0.2... 169, 184, 213, 216, 287, 307 Blakeley v. Washington (2004) 542 U.S. 296 2.2.6... cece eee eee 73 Booth v. Maryland (1986) 482 U.S. 496 0.0...cecee ee 253 Brady v. Maryland (1963) 373 US. 830 0...eeees 163, 176 Brady v. United States (1970) 397 U.S. 742 2...oeeee 142 Brewer v. Quarterman (2007) 550 U.S. 286 ©... 0.0.60 eee eee 260 Brooks v. Tennessee (1972) 406 U.S.605 ......-.... 0.0 cee cee eee 180, 189 Brown v. Sanders (2006) 546 U.S. 212 2.2...0ccee eee 308 Delgadov. Rice (S.D.Cal. 1999) 67 F. Supp. 2d 1148 ................05. 207 Wiggins v. Smith (2003) 539 U.S. 510 2...eeeee eee 211 Chapmanv. California (1987) 386 U.S. 18 ........... 204, 230, 287, 310, 312 Xi Clay y. American Tobacco Co.(S.D.Ill. 1999) 188 F.R.D. 483 ........... 225 Crutchfield v. Wainwright (11th Cir. 1986) 803 F.2d 1103 ............... 189 Davis v. Alaska (1974) 415 U.S. 308 «20... 0... cee ee ee eee eee eens 189 Dugas v. Coplan (Ast Cir. 2005) 428 F.3d 317 2.02.eeeee eee 172 Eddings v. Oklahoma (1982) 455 U.S. 104 ............. 37, 38, 214, 226, 252, 253, 255, 259, 260 Egev. Yukins (6th Cir. 2007) 485 F.3d 364 2.0... cece eee eee 172 Ferguson v. Georgia (1961) 365 U.S.570 2.0...ccc ce eens 189 Furman vy. Georgia (1972) 408 U.S. 238 ......2.2..5. scene ee ewes 216 Freemanv. Class (8th Cir. 1996) 95 F.3d 639 ..........-...---0 022 e ee 291 Gardnerv. Florida (1977) 430 US. 349 .. 0... .....6-. 121, 214, 307, 315, 316 Geders v. United States (1976) 425 U.S. 80 2.0.0... cee eee 180, 188 Georgia v. Brailsford (1794) 3 U.S. Lo...occeeeee 80 Glasser vy. United States, supra, 315 U.S. atp.70 ............... ... 142, 143 Godfrey v. Georgia (1980) 446 U.S. 420 22... ec eee eee eee eee 286 Gray v. Mississippi (1987) 481 U.S. 648 2.0... e eeee eee 62 Green v. Georgia (1979) 442 US.95 2.0... ccc ccc ee eee 121 Gregg v. Georgia (1976) 428 U.S. 153) ooeecee eee 286 . Groppi v. Wisconsin (1971) 400 U.S. 505...eeeee eee 92 Hamv. South Carolina (1973) 409 U.S. 524 2...cceee ene 27 Hart v. Gomez (9th Cir. 1999) 174 F.3d 1067 ........2...0.0 20 eee eee 172 Xi Herring v. New York (1975) 422 US. 853) 2. oeee ee eee 180, 188, 206 Hicks v. Oklahoma (1980) 447 US. 343 2.0... eecc ee eee 238, 285 Higgins v. Renico (6th Cir. 2006) 470 F.3d 624 ....... 0... eee ee eee 189 Hintz v. Beto (Sth Cir. 1967) 379 F.2d 937 2...ccee eee 181 Geders v. United States (1976) 425 U.S. 80 2.0... 2... eee ee ee eee 206 J.D.B. v. North Carolina (2011) 131 S. Ct. 2394 2.0... eee ee eee 226 Jackson v. Denno (1964) 378 U.S. 368 «2.0... ce eee eee ee eens 306 Johnson v. Mississippi (1988)486 U.S. 578 2.0.0eee... 50 Kentucky v. Stincer (1987) 482 U.S. 730 «0.2.2.2occe ee eee 212 Kleba v. Williams (7th Cir. 1986) 796 F.2d 947 2.0.0.0. eee eee ee 188 Kyles v. Whitley (1995) 514 U.S. 419 200.eee eee 164, 176 Lankford v. Idaho (1991) 500 U.S.WO.ceeee ee 214 Lockett v. Ohio (1978) 438 U.S. 586... ......-.00205- 121, 214, 252, 253, 255, 259, 260, 315 Lockhart v. McCree (1986) 476 U.S. 162 ...........-20- 22 eee eee eee 59, 74 Lorillard TobaccoCo.v. Reilly (2001) 533 U.S.525) 0.2.0... eee ee eee 225 Marshall v. United States (1959) 360 U.S. 310 ...........--0.--- 22 ee eee 98 McGauthav. California (1971) 402 U.S. 183 2... eeeee eee 216 Miller v. Alabama (2012) __ U.S. ___, 132 S. Ct. 2455 2.0... 219, 221 Morganv. Illinois (1992) 504 U.S. 719 2...eeeee 37 Xiil Napuev.Illinois (1959) 360 U.S. 264 2.0...ce ce eee 164, 176 Nelson v. Quarterman (5th Cir. 2006) 472 F.3d 287 ............2.00205- 261 Ohio v. Roberts (1980) 448 U.S. 56 22.1...eee 66, 67, 72 Osbournev. Shillinger (10th Cir. 1988) 861 F.2d 612 ...............60.. 113 Pavel v. Hollins (2nd Cir. 2001) 261 F.3d 210 ......0 0... cece ee eee 172 Penry v. Johnson (2001) 532 U.S. 782 2.0... cece eee eens 260, 261 Penry v. Lynaugh (1989) 492 U.S. 302 .....- 2... eee eee 214, 259, 260 Richardson v. Marsh (1987) 481 U.S. 200 .....-....2- 2 cee ee eee ee eee 306 Rideau v. Louisiana (1963) 373 US. 723 . ccc eee cece eee ees 92, 93, 97 Ring v. Arizona (2002) 536 U.S. 584 ........... 0.00006. 68, 70, 71, 237, 319 Rompilla v. Beard (2005) 545 U.S. 374 2.ceeee nee 114 Rushen v. Spain (1983) 464 U.S. 114 2.0...eecceee 205 Simmonsv. South Carolina (1994) 512 U.S. 154.2... 0.0.0... 0 00 eee eee 285 Snyder v. Massachusetts (1934) 291 U.S.97 2... eeecee eee 212 Soffar v. Dretke (5th Cir. 2004) 368 F.3d 441... 0... ee eee eee 172 Sparfv. United States (1895) 156 U.S. 51 ......... vc cvseccetecereeeues 78 Strickland v. Washington (1984) 466 U.S. 668 ......... 122, 161, 173, 180, 185, 186, 188, 205, 206, 290, 293 Trop v. Dulles (1958) 356 U.S. 86 2...ceeens 224 Turner v. Murray (1986) 476 U.S. 28 2.02...ceeee 27 Xiv United States v. Burr (C.C.Va. 1807) 25 F. Cas.49 ..............00.----- 77 United States v. Cronic (1984) 466 U.S. 648 ............-. 200, 205, 206, 262 United States v. Gouveia (1984) 467 U.S. 180 .. 20.2... ee ee eee eee 179 United States v. Graham (6th Cir. 2010) 622 F.2d 445 .............2005. 229 United States v. Hale (1975) 422 U.S.171 oo. eeeee eee 306 United States v. Hammer (M.D.Pa. 1998) 25 F. Supp. 24518 ............ 115 United States v. Harvill (9th Cir. 1974) 501 F.2d 295 ....... 2.0.0.0. 181 United States v. Skilling (2010) 561 U.S. 358, 130 S. Ct. 2896 ............. 98 Uttecht v. Brown (2007) SSI US. 1 0...ecec ce eee 75 Washington v. Texas (1967) 388 U.S. 14 2...ceeeee 188 Welch v. Simmons(10th Cir. 2006) 451 F.3d 675 .......0.2..---2---22005- 189 Welch v. Texas Dept. ofHighways and Public Transp. (1987) 483 U.S. 468 .. 237 Wiggins v. Smith (2003) 539 U.S.510 2...eeece ee eee 265 Witherspoon v. Illinois (1968) 391 U.S.510 .................. 62, 63, 65, 66 Woodson v. North Carolina (1976) 428 U.S. 280.00... ......00 200 213, 286 Woodwardv. Sargent (8th Cir. 1986) 806 F.2d 153 ...........0. 02.00.04. 291 Wright v. United States (9 th Cir. 1964) 339 F.2d 578 ...............005. 181 Wright v. Walls (7th Cir. 2002) 288 F.3d 937 2.0.2... eee ee eee 261 STATE CASES Brunerv. State (Okla. 1980) 612 P.2d 1375 ........2......--0-0-0220000- 311 XV C & K Engineering Contractors v. Amber Steel Co. (1978) 23 Cal.3d 1 ...... 82 City ofSacramento vy. Drew (1989) 207 Cal. App. 3d 1287)... 22... .6.0-. 303 Commonwealth v. Patterson (Mass. 2000) 432 Mass. 767 ............---- 118 Corenevsky v. Superior Court (1984) 36 Cal. 3d 307 ...............200-. 161 Davis v. Ryan (D.Ariz. 2009) 2009 WL. 2515644 ...........0.. 0200006. 115 Gilbert v. National Corporation for Housing Partnerships (1999) 71 Cal.App. 4th 1240 ... 00.ceeeee eee 150 Hoelv. City ofLos Angeles (1955) 136 Cal. App. 2d 295 ................ 309 Howard v. Babcock (1993) 6 Cal. 4th 409 ................0.4. . 149, 150,319. Jameson v. Tully (1918) 178 Cal. 380.2... 2.eeeee 309 Kaiser v. Hopkins (1936) 6 Cal. 24537 2.2...ceeee 244 McLaughlin v. Sikorsky Aircraft (1983) 148 Cal. App. 3d 203 ............ 309 Moradi-Shalal y. Fireman's Fund Ins. Companies (1988) 46 Cal. 3d 287 2... eee ee eee eee 119, 143, 144, 149, 238, 280, 287, 310, 312 Odle v. Superior Court (1982) 32 Cal. 3d 932 2.0... eee ee ee eee 93 People v. Aragon (1957) 154 Cal. App. 2d 646 ........... eee eee ences 310 People v. Avila (2006) 38 Cal. 4th 491.2...eeeee 202 People v. Ayala (2000) 24 Cal. 4th 243... 0... 2 cece ee eee eee 213 People v. Bentley (1955) 131 Cal. App. 2d 687 ................ 0.002085 311 People v. Bevins (1960) 54 Cal. 2d 71 2...eeeee 273 People v. Bivert (2011) 52 Cal. 4th96 ...............2-..-02-2008- 202, 227 Xvi People v. Bojorquez (2002) 104 Cal. App. 4th 335.....Lace eee e eee. 307 People v. Bradford (2007) 154 Cal. App. 4th 1390 ................. 203, 207 People v. Bradford (1976) 17 Cal. 3d. 8...oecee eee nee 303 People v. Brawley (1969) 1 Cal. 3d. 277 2.0... ceeee eens 48 People v. Brown (2003) 31 Cal. 4th 518 20.2...ceeee 277 People v. Cabrellis (1967) 251 Cal. App. 2d 681 .... 20.2.2... 02 eee eee eee 311 People v, Carter (2003) 30 Cal. 4th 1166 ............... 00... 0000- 275, 281 People v. Champion (1995) 9.Cal. 4th 879. 0... 0.2... Lene e eee ee eee ..- 308 People v. Coffman (1969) 2 Cal. App. 3d 681 2.2.0.2... eee eee eee eee 162 People v. Cuevas (1995) 12 Cal. 4th 252 «1.0.0.2... eee eee 234, 238, 283 People v. Dagnino (1978) 80 Cal. App. 3d 981... 0.2... eee eee eee 202 People v. Davenport (1985) 41 Cal. 3d 247 1.0.0... ee cee eae 48, 235 People v. Edwards (2013) 57 Cal. 4th 658 «2.0.2...eeeeee 46 People v. Eubanks (1996) 14 Cal. 4th 580 2.0.2.2. eee eee eee eee 165, 251 People v. Flood (1998) 18 Cal. 4th 470 2.0... eeeeee eee ee 83 People v. Friend (2009) 47 Cal. 4th 1...eeeeee 235,277 People v. Galloway (1979) 100 Cal. App. 3d 551.................22205. 306 People v. Garcia (1984) 160 Cal. App. 3d 82 ........... 02.0020 2 eee eee 203 People v. Garcia (1999) 21 Cal. 4th 1.2...eeeee 251 People v. Geddes (1991) 1 Cal. App. 4th 448 10... 2. eee ee eee eee 115 XVii People v. Glass (1975) 44 Cal. App. 34.772 .....0 0020 0cceeeeeeeeeeeees 306 People v. Gordon (1973) 10 Cal. 3d 460... 22... ee eee eee eee 273, 291 People v. Guinn (1994) 28 Cal. App. 4th 1130 ............----- eee eee 247 People v. Hendricks (1987) 43 Cal. 34584 Jo. e eee cece eee eee ee 263 People v. Hogan (1982) 31 Cal. 3d 815 2.0... eee eee eee eee eee 203, 205 People v. Holt (1997) 15 Cal. 4th 619 .. 2.0... ee eee eee eee eee 58 People v. Jacobs (1984) 158 Cal. App. 3d 740 ......-.-..-.4--. 303, 304, 306 People v. Laursen (1968) 264 Cal. App. 2d 932 .......-.. 22. ee eee ee eee 306 People v. Lawley (2002) 27 Cal. 4th 102 ...... 2.0.2... eee eee eee eee 276 People v. Lee (2011) 51 Cal. 4th 620 ........-- 6. eee eee eee eee 227, 287 People v. Leonard (2007) 40 Cal. 4th 1370 «0.2.2.2... eee eee eee eee eee 94 People v. Linkenauger (1995) 32 Cal. App.4d ......--- 02-2 e eee eee eee 303 People v. Marsden (1970) 2 Cal. 3d 118 «0.2.6... e ee eee eee ee eee eee eee 149 People v. Medrano (1978) 78 Cal. App. 3d 198... 2... eee eee eee eee eee 286 People v. Michaels (2002) 28 Cal. 4th 486 .........--....-- 44, 46, 47, 51, 52, 142, 144, 149, 217, 228 People v. Miranda (1987) 44 Cal. 3d 57 .......--.----- 59, 235, 261, 273, 288 People v. Mize (1889) 80 Cal. 41 2...6cceee eee eens 286 People v. Muni Court (Pellegrino) (1972) 27 Cal. App. 3d 193 ........ 164, 165 People v. Najera (2008) 43 Cal. 4th 1132 .......--.------0-0---0-- 212, 283 XVili People v. Parsons (1984) 156 Cal. App. 3d 1165 ..................0205. 311 People v. Perez (1981) 114 Cal. App. 3d 470 ....... 0... ee eee eee eee 307 People v. Polk (1975) 63 Cal. 2d 443 2.0... eeecece eee 48 People v. Powell (1967) 67 Cal. 24.32 2.0... eee cece ee eee 289 People v. Price (1991) 1 Cal. 4th 324 2.00...ceeee eee 212 People v. Pride (1992) 3 Cal. 4th 195 2.0... cee cece eee ee 218, 235 People v. Robertson (1982) 33 Cal. 3d 21... 6... cee cece ee eee 48 People v. Rodrigues (1994) 8 Cal. 4th 1060 ...................22 20008 277 People v. Rodriguez (1997 Wl.), 680 N.E.2d 757 «20... eee ee ee eee 171 People v. Schiering (1979) 92 Cal. App. 3d 429... 0.2.0.0... .2.2200208. 162 People v. Schiers (1971) 19 Cal. App. 3d 102 .............. 020000200 ee 306 People v. Schmeck (2005) 37 Cal. 4th 240 ...........0......0.. 318, 319, 320 People v. Solomon (2010) 49 Cal. 4th 792 21.0... cee eee eee 47 People v. St. Andrew (1980) 101 Cal. App. 3d 450. ................0.0.. 162 People v. Sundlee (1977) 70 Cal. App. 3d 477 .....0......2..22-.eee 162 People v. Superior Court (Du) (1992) 5 Cal. App. 4th 822 ............... 246 People v. Superior Court (Greer) (1977) 19 Cal. 3d 255 ................. 163 People v. Tidwell (1970) 3 Cal. 3d 62 ......... Lecce cece eee ee ee eee 94, 95 People v. Valdez (2012) 55 Cal. 4th 82 2.00... eeeeeeee 47 People v. Varnum (1967) 66 Cal. 2d 808 ............ Lecce cee e eens 273 XIx People v. Viray (2005) 134 Cal. App. 4th 1186... 0.2.2.2... . eee eee eee 165 People v. Warren (1940) 16 Cal. 2d 103... 0... eeeeeeee 273 People v. Welch (1972) 8 Cal. 3d 106 1.2... oeceecee nee 95 People v. White (1958) 50 Cal. 2d 428 2.0...0.eee 311 People v. Williams (2004) 34 Cal. 4th 397 2.0.0... eee eee cee ees 248 People v. Williams (1997) 16 Cal. 4th 153 ................. 26, 277, 279, 302 People v. Willoughby (1985) 164 Cal. App. 3d 1054 ................-55. 309 People v. Wright (1990) 52 Cal. 3d 367 ..........-...---. 208, 231, 235, 236 People v. Ybarra (2008) 166 Cal. App. 4th 1069 ................ ... 163,273 People v. York (1966) 242 Cal. App. 2d 560 ........ 0... ce eee ee ee eee 291 People v. Young (1978) 85 Cal. App. 3d 594 2... 2... eee cee eee 306 Rand v. Board ofPsychiatry (2012) 206 Cal. App. 4th 565 ............... 150 Roland v. Superior Court (2004) 124 Cal. App. 4th 154 ................. 164 Santa Clara County v. Woodside (1994) 7 Cal. 4th 525 ......... 45, 46, 59, 150 State Farm Mut. Auto Ins. Co. v. Garamendi (2004) 32 Cal. 4th 1029 ...... 250 State v. Dugan (Ariz. 1980) 508 P.2d 771 2...cee eee 311 State v. Mann (Ariz. 1997) 934 P.2d 784 2.02...eeeeee 255 State v. Rhines (S.D. 1996) 548 N.W.2d 415 2...eeee ee eee 255 State v. Simmons (Mo. 1997) 944 S.W.2d 165.222... 22. eee eee eee 255 White v. State (Fla. 1978) 365 So. 2d 199 1...eeeee 311 XX Williams v. Superior Court (1983) 34 Cal. 3d 584 ...................00-. 93 XXi INTRODUCTION Along with Anthony Miller, appellant Jean Pierre Rices was charged with murder arising out of the March 1, 2006 shooting deaths of two employees at the Granada Liquor Store in El Cajon, California. The state sought death against Rices alone. Priorto trial, Rices pled guilty to murder. Thus, his jury would have only one decision to make: should Jean Pierre Rices live or die? Both Rices and Miller are black. Because the shootings had received extensive coveragein the local media-- including nearly 100 newspaperarticles with numerous references to evidence that would never come before the jury -- the parties prepared a detailed questionnaire to assess the views of prospective jurors. The results were stark. “They Should KILL Them NIGGA’S ....” “He needsto fry.” “Tn my opinion these two guys should be hanged on the courthouse lawn! Also the hanging should be shown on every network T.V.station in the world.” The statements of prospective jurors appear to have reflected the views of the local population at large. As one resident of the county candidly told a newscaster: “They should hang him here,in front of the liquor store. This way, he never doit again.” Defense counsel sought a change of venue. That motion was denied. Although the jury wassolely deciding whether Mr. Rices wouldlive ordie, the court then refused to strike several jurors who candidly admitted their view that “black[s] . . . are more likely to be violent” than whites. Moreover, despite the fact that a substantial part of the defense case in mitigation involved presenting evidence regarding Mr. Rices’s difficult childhood and upbringing,the court also refused tostrike several jurors who conceded they would not “consider the defendant’s childhood and upbringing” in deciding whether he would live or die. Finally, although the state gave notice it would rely on other crimes evidencein asking the jury to impose death,the trial court refused to permit defense counsel to ask any voir dire questionsat all aboutthis critical area and whether prospectivejurors could hear evidenceof this nature andstill consider life as an option. Asdiscussed morefully below, although defense counsel didall in his power to mitigate the court’s errors -- objecting, using peremptory challenges when he could and preparing both oral and written motions for additional challenges when his allotmentof peremptory challenges was exhausted -- the jury selection and voirdire process in this case posedsignificant hurdlesto a fair penalty phase. But these were not the only hurdles. Because the state was not seeking death against Miller, the court empaneled two juries to hear the case. The Miller jury would decide whether Miller was guilty. The Rices jury would decide whether Rices would live or die. The parties agreed on a procedure where (1) the two juries would sit together to hear the state’s case about the crimeitself, (2) the Rices jury would be discharged for Miller’s defense case and (3) the Rices jury alone would reconvene to hear aggravating and mitigating evidence in connection with Rices’s penalty phase. Inexplicably, despite the logic of this procedure, the Rices jury was re-convenedearly to hear Miller testify in his own defense. This testimony was devastating to Mr. Rices. Unbeknownstto the defense, Miller had been interviewed by police and the prosecutor for several hours. Prior to trial, the court permitted the state to suppress this interview after the prosecutor promised that Miller would “not be called as a witness by the People.” When Miller was called as a witnessin front of the Rices jury, defense counsel -- completely unaware of what Miller told police during this secret interview -- did not object. Miller then testified that Rices forced him to commit the crime. In addition, the state was then able to introduce Miller’s statementsto police that Rices shot both victims as they were beggingfor their lives. Whencounsel for Mr. Rices finally objected and asked that the Rices jury be excused, the trial court asked “‘whyis this objection coming in now” and overruled the objection. In urging the jury to impose death, the prosecutor repeatedly relied on Miller’s testimony. But even taken together, the jury selection and suppression of evidence issues referenced above -- which impacted Mr. Rices’s ability to obtain a fair jury as well as his ability to confront aggravation -- were not the only hurdles to a reliable penalty phase verdict. Mr. Rices’s right to conflict free counsel -- and counsel’s own ability to make conflict free decisions about mitigation -- was also compromised. Whenthestate initially brought charges against Mr. Rices -- and whenprivate defense counsel was appointed to represent Mr. Rices -- the charges were notcapital. It wasnotuntil eight monthslater that the state decided to seek death against Mr. Rices. Because Rices wasindigent, the state appointed private counsel to represent him. The court and counselagreed on flat fee for the case. Becausethe case against Mr. Rices was nowcapital, the agency that had recommendedprivate counsel advised thetrial court that in its view although appointed counsel was qualified to handle a non-capital murder case, he wasnot qualified to handle a capital case. Defense counsel disagreed andthetrial court appointed “independent counsel” to advise Mr. Rices of his options. This was entirely appropriate. Unfortunately, however, and apparently unbeknownstto the court, the “ The Appendixto Brief of Petitioner in Adamsis a transcript of the voir dire examination of prospective jurors. 60 In other words, Adams involvedfive jurors who expressed equivocal comments about whether they would put aside their personal views which might conflict with their ability to follow the law. In connection with each of these five jurors expressing equivocal comments,the trial court resolved the ambiguity in the state’s favor, discharging them all for cause. Nevertheless, the United States Supreme Court held the state had notcarried its burden of proving these jurors were properly stricken for cause “because they were unable positively to state whether or not their deliberations would in any waybe affected.” (448 U.S.at pp. 49, 50.) Thus, Adams showsthat even when a prospective juror gives equivocal responses, the state has notcarried its burden of proving that the juror’s views would “prevent or substantially impair the performanceofhis duties as ajuror....” (Adamsv. Texas, supra, 448 U.S.at p. 45.) Here, read as a whole, Ms. Wadhams’ questionnaire and voir dire responses were not even equivocal. At no pointdid she suggest that she would be unable to follow the law asset forth by the court or her oath as a juror. To the contrary, she stated in her questionnaire that although she was“slightly against the death penalty” she would not automatically vote forlife. (26 CT 6484-6485.) Under questioning by the prosecutor she repeated that she could consider death as an option and herdecisionas to the penalty was “going to depend on the evidence.” (7 RT 1133.) She admitted under questioning by defense counselthat sitting on a capital case would be very stressful and shereiterated 61 this under questioning by the prosecutor:it was a “heavy burden.” (7 RT 1079, 1134.) Becauseofthis stress, she admitted she did not know in advanceif she “could make a fair assumption,” but explained that she would try. (7 RT 1135.) On this record,the state did not carry its burden of proving that Ms. Wadhams’s views would “preventor substantially impair the performanceof[her] duties as a juror. . ..” (Adams vy. Texas, supra, 448 U.S. at p. 45.) As noted above,this required thestate to prove that Ms. Wadhams’ “views on capital punishment would prevent or substantially impair the performanceof [her] duties as a juror in accordance with [her] instructions and [her] oath.” (Witt, supra, 469 U.S.at p. 424.) Because neither her questionnaire nor her voir dire come close to satisfying this burden, reversal of the penalty phase is required. (Gray v. Mississippi (1987) 481 U.S. 648, 660.) In making this argument Ms. Rices recognizes that the record certainly shows Ms. Wadhamswasconcernedwith thestress of sitting on a capital jury. But this is not enoughto justify a for-cause discharge based on her views on the death penalty. Asthis Court hasitself noted, “{a]ny juror sitting in a case such as this would properly expect the issues and evidence to have an emotional impact. A juroris not to be disqualified for cause simply becausethe issues are emotional.” (Peoplev. Bittaker (1989) 48 Cal.3d 1046, 1091.) And as the United States Supreme Court itself stated in Witherspoonv. 62 Illinois (1968) 391 U.S. 510 “‘[t]he declaration of the rejected jurors, in this case, amounted only to a statementthat they would notlike . .. aman to be hung. Few men would. Every right-thinking man would regardit as a painful duty to pronouncea verdict of death upon his fellow-man.”” (dd.at p. 515.) In short, on the state’s motion the trial court discharged Ms. Wadhamsbecause “she would be substantially impairedin her ability to return a verdict of death.” But the record showsthestate had simply presented insufficient evidence to sustain its burden of showing that Ms. Wadhams’ “views on capital punishment would preventor substantially impair the performance of[her] duties as a juror in accordance with [her] instructions and [her] oath.” (Witt, supra, 469 U.S. at p. 424.) A new penalty phase is required. 63 V. THE “SUBSTANTIALIMPAIRMENT” STANDARD FOR EXCLUDING JURORSIN CAPITAL CASESIS INCONSISTENTWITH BOTH THE STATE - AND FEDERAL CONSTITUTIONAL RIGHTS TO A JURY TRIAL. A. Introduction. The trial court discharged prospective juror Wadhams who wasopposedto the death penalty becauseit found “she . . . would be substantially impaired in herability to return a verdict of death.” (7 RT 1148.) In addition, presumably applying this same standard,the trial court discharged prospective jurors Wimberly and Gregg. (7 RT 1142, 1150.) As discussed in Argument IV above, even accepting this standard as a correct application of the Sixth Amendment(and theparallel jury trial provisionsof the state constitution), the trial court here applied this standard improperly as to prospective juror Wadhams. This requires reversal of the penalty phase. As Mr. Rices explains below, however,the standarditself is inconsistent with both the state and federal constitutions. For these reasons too a new penalty phaseis required. The standard usedbythetrial court here was taken from the Sixth Amendment framework erected by a series of United States Supreme Court cases decided between 64 1968 and 1980. This standard reflected a then-common approachto the Sixth Amendmentwhich did not examinethe intent of the Framers in enacting the Sixth Amendment, but instead defined the scope of that amendmentby identifying and balancing competing interests of the state and the defendant. As more fully discussed below, however, in the past 15 years the Court has rejected this “competing interest” approach to the Sixth Amendment, reexaminedits framework for analyzing the scope of the Sixth Amendment, andheld that the contours of the Sixth Amendmentare to be determined by the Framers’intent in enshrining the right to an “impartial jury” in the Constitution. As also discussed below,the test used by the trial court here is fundamentally inconsistent with the intent of the Framers in adopting the Sixth Amendment. Reversal of the penalty phase is required. B. Development Of The Adams Test For Discharging Jurors Based On Their Views Of Capital Punishment. In Witherspoonv.Illinois (1968) 391 U.S. 510, the Supreme Court first addressed whetherthe Sixth Amendmentrightto a jury trial permitted the state to exclude from jury servicein a capital case jurors who opposed the death penalty. Witherspoonheld that the Sixth Amendmentpermitted the state to exclude jurors only if the record made “ummistakably clear” the jurors would (1) automatically vote against the imposition of 65 capital punishment without regard to any evidence that might be developedat the tal of the case before them, or (2) that their attitude toward the death penalty would prevent them from making an impartial decision as to the defendant's guilt. (391 U.S.at p. 515, n.9, 522, n. 21.) Twelve yearslater, in Adams v. Texas, supra, 448 US. 38, the Court revised this standard. As discussed above, Adamsheld that the Sixth Amendmentpermitted the state to discharge any juror “based on his views about capital punishment[if] those views would prevent or substantially impair the performanceof his duties as a juror in accordance with his instructions and his oath.” (Id. at p. 45.) The Court stated thatits conclusion waspart of an effort “to accommodatethe State's legitimate interest in obtaining jurors who could follow their instructions and obey their oaths.” (448 U.S.at pp. 43-44.) The approachto the Sixth Amendmentwhich resulted in the rule set forth in Adams-- an approach whichconsidered the interests of the defendant and the interests of the state and then sought to reach a principled accommodationofthe two -- was not unique to Adams. Indeed, on the very same day the Court decided Adamsit issued another decision applying the Sixth Amendment-- Ohio v. Roberts (1980) 448 U.S. 56. In Roberts, the Court addressed whether the Sixth Amendmentconfrontation right 66 permitted the state to introduce preliminary hearing testimony against a defendantattrial. Ultimately, as it did in Adams, the Court’s Sixth Amendmentanalysis in Roberts recognized “competing interests” betweenthe goals of the Confrontation Clause itself and effective law enforcement, sought to accommodate these competing interests, and ruled the evidence admissible. (448 U.S.at p. 64, 77.) The question presented here is whether the “competing interests” approachto the Sixth Amendment taken in Adams-- and the standard Adamsset forth as a result -- is consistent with the Court’s current approach to the Sixth Amendment, or the intent of the Framers who drafted the Sixth Amendment. As discussed below, the Adamsstandardis consistent with neither. C. The Supreme Court’s Modern Sixth Amendment Precedent Focuses Not On Identifying And Accommodating Competing Interests, But On The Historical Understanding Of The Rights Embraced By The Sixth Amendment And TheIntent Of The Framers. In a series ofdecisions issued over the last 15 years, the Supreme Court has reexamined muchof its Sixth Amendmentjurisprudence. In those decisions, the Court has consistently explained that the contours of the Sixth Amendmentare no longerto be determined by seeking to balance competinginterested, but instead are to be determined by assessingthe intent of the Framers. Indeed, the Court’s decisions overthe last decade 67 show that the Court has nothesitated to overrule its prior Sixth Amendmentprecedents to incorporate into its Sixth Amendmentjurisprudence fidelity to the Framers’ intent. (See, e.g., Ring v. Arizona (2002) 536 U.S. 584 overruling Walton v. Arizona (1990) 497 U.S. 639 (1990); Crawford v. Washington (2004) 541 U.S. 36 overruling Ohio v. Roberts, supra, 448 U.S. 56.) The starting point for this analysis is the Court’s decision in Jones v. United States (1999) 526 U.S. 227. There, the Court addressed whethera particular factual finding was an element of the offense (which hadto be provento a jury under the Sixth Amendment) or merely a sentencing factor which could be decided by a judge. In making this assessment, the Court emphasized the Sixth Amendmentimplications based on the historical role of juries. Thus, the Court explainedthat, historically, there had been “competition” between judge and jury overtheir respective roles. (526 U.S.at p. 245.) Juries had the power“to thwart Parliament and Crown”both in the form of“flat-out acquittals in the face of guilt” and also “what today we wouldcall verdicts of guilty to lesser included offenses, manifestations of what Blackstone described as ‘pious perjury’ on the jurors’ part.” (Ibid., quoting 4 William Blackstone, Commentaries on the Laws of England atpp. 238-39.) The Court explainedthat“[t]he potential or inevitable severity of sentences was 68 indirectly checked by juries’ assertions of a mitigating power when the circumstancesof a prosecutionpointedto political abuse of the criminal process or endoweda criminal conviction with particularly sanguinary consequences.” (Ibid.) Of course, there is no more “sanguinary consequence” than capital punishment. Although Jones wasnot a capital case, the Court’s concern with the “genuine Sixth Amendmentissue” that would flow from diminishing the jury’s significance applies to death qualified juries as well. (Jd. at p. 248.) The Court echoed a crucial warning from Blackstone that was “well understood” by Americansof the time: there is a need “‘to guard with the most jealous circumspection’” against erosionsofthe jury trial right flowing from a variety of plausible pretenses for limiting the right. (Zbid.) Asthe Court reiterated, “however convenient these may appear atfirst, (as doubtless all arbitrary powers, well executed, are the most convenient), yet let it be remembered,that delays, and little inconveniences in the forms of justice, are the price thatall free nations must payfortheir liberty in more substantial matters.” (Id. at p. 246, quoting 4 Blackstone, supra, at pp. 342-44). In capital cases, limiting juries to death-qualified juries is precisely the sort of convenience that Blackstone warmed a free nation must guard against. That it may be more convenient to accommodate the government’s interest in only trying a capital case 69 to a jury that has excluded from its ranks all of the individuals who mightinterfere with the government’s effort to impose a death sentence is no answer. The historical basis for the Sixth Amendment, as Jones emphasizes, is to interpose citizens between the governmentand an accused. Oneyear after Jones, the Court again invoked the Sixth Amendment’s “historical foundation”as support for its conclusion that a jury mustfind a defendantguilty of every element of any charged crime beyond a reasonable doubt. (Apprendi v. New Jersey (2000) 530 U.S. 466, 477.) Like Jones, Apprendi was nota capital case. It involved firearms charges andthe potential for a sentencing enhancement under a New Jersey hate- crimestatute. But in analyzing the question presented, the Court again focused on the jury’s historical role as a “guard against a spirit of oppression and tyranny onthe part of rulers,” and “as the great bulwark of [our] civil and political liberties... .” Ubid., quoting 2 Joseph Story, Commentaries on the Constitution of the United States 540-41 (4th ed. 1873).) These principles, important in a case where the consequence at stake for a defendantis imprisonment, are indispensable in the contextof a capital case. Twoyearslater, the Court applied the Sixth Amendmentprinciplesset forth in Jones and Apprendiin the capital context. (See Ring v. Arizona (2002) 536 U.S. 584.) Ring involved the question whether it violated the Sixth Amendmentfora trial judge to 70 alone determine the presence or absence of aggravating factors required for imposition of the death penalty after a jury’s guilty verdict on a first degree murder charge. In answering that question “yes,” the Court reversed its earlier holding in Walton v. Arizona (1990) 497 U.S. 639 and recognizedthat “[a]lthough ‘the doctrine of stare decisis is of fundamental importanceto the rule of law{,] . . . [o]ur precedents are not sacrosanct.” (Ring, supra, 536 U.S. at p. 608.) Ring continued the Court’s focus on the historical right to a jury trial and discussed the juries of 1791, when the Sixth Amendment became law -- just as Justice Stevens had done in his Walton dissent. (See Walton, supra, 497 U.S.at p. 711.) Ring unequivocally stressed that at the time the Bill of Rights was adopted, the jury’s right to determine “which homicide defendants wouldbe subject to capital punishment by making factual determinations, many of whichrelatedto difficult assessments of the defendant’s state of mind” was “unquestioned.” (Ring, supra, 536 USS.at p. 608.) In addition, the Court repeated that “the Sixth Amendmentjury trial right . .. does not turn ontherelative rationality, fairness, or efficiency of potential factfinders.” (Id. at p. 607.) “The founders of the American Republic were not prepared to leaveit to the State, which is why the jury-trial guarantee wasoneofthe least controversial provisionsin the Bill of Rights. It has never beenefficient; but it has always beenfree.” (Ibid.) 71 Twoyears after Ring, the Court again overturned oneofits earlier Sixth Amendmentdecisions which hadnotrelied on a historical understanding of the Sixth Amendment. In Crawford v. Washington (2004) 541 U.S. 36 the Court focused on an historical interpretation of the Sixth Amendment’s Confrontation Clause and reversedits holding in Ohio v. Roberts, supra, 448 U.S. 56. As noted above, in Roberts the Court had held that the Sixth Amendment permitted the state to introduce preliminary hearing testimony against a defendantattrial as a method of accommodating the “competing interests” between the goals of the Sixth Amendmentand the government’s interest in effective law enforcement. (448 U.S.at p. 64, 77.) In Crawford, however, the Court took a very different approach, one that was consistent with the approach it took in Jones, Apprendi and Ring. The Court examined the “historical record” and concluded that under the commonlaw in 1791, “the Framers would not have allowed admission of testimonial statements of a witness who did not appear at trial... .” (Crawford v. Washington, supra, 541 U.S. at pp. 53-54.) The Court acknowledgedthatits contrary holding in Roberts had failed to honor the historical role of the jury and thereby created a framework that did not “provide meaningful protection from even core confrontation violations.” (Id. at p. 63.) Finally, only three months after Crawford, the Court applied its historical record 72 model yet again in the Sixth Amendmentcontext. In Blakeley v. Washington (2004) 542 U.S. 296, the Court held that it violated the Sixth Amendmentfor a judge to impose a longer sentence based on fact-finding not made bythe jury. As the Court reiterated, again citing Blackstone, every accusation against a defendantshould “be confirmed by the unanimoussuffrage of twelve of his equals and neighbours.” (Jd. at p. 301.) Once again focusing on the Framers’ intent, the Court stressed that “the very reason the Framersput a jury-trial guarantee in the Constitution is that they were unwilling to trust governmentto mark outthe role of the jury.” (Id. at pp. 306-08,citing Letter XV by the Federal Farmer (Jan. 18, 1788), reprinted in 2 The Complete Anti-Federalist 315, 320 (H. Storing ed., 1981) [describing the jury as “‘secur[ing] to the people at large, their just and rightful controulin the judicial department”]; John Adams, Diary Entry (Feb. 12, 1771), reprinted in 2 Works of John Adams 252, 253 (C. Adamsed., 1850) [“[T]he common people, should have as complete a control . . . in every judgment ofa court of judicature” as in the legislature]; Letter from ThomasJefferson to the Abbe Arnoux (July 19, 1789), reprinted in 15 Papers of ThomasJefferson, 282, 283 (J. Boyd ed., 1958) [“Were I called upon to decide whetherthe people had best be omitted in the Legislature or Judiciary department, I would say it is better to leave them out of the Legislative.”]; Jones, supra, 526 U.S.at pp. 244-48.) Theclear and consistent line of cases from Jones to Apprendi to Ring, Crawford, 73 and Blakeley leaves no doubtthat the Court has sought to connect Sixth Amendment jurisprudenceto thehistorical role ofjuries and the intent of the Framers in adopting the Sixth Amendment. The Court’s approach to the death qualification of capital juries -- based on the 1980 Adamsdecision-- is utterly incompatible with its current approach to the Sixth Amendment, as demonstrated by the cases just discussed. Unlike these recent cases -- which specifically consider the Framers’ intent when interpreting the Sixth Amendment’s protections -- the Court’s earlier death-qualification decisions did not consider the Framers’ intentat all in deciding whether the practice of death qualification violates the Sixth Amendment. Instead, the Court’s death qualification decisions attemptedto craft a balancing test that accommodateda State’s interest in implementing its death penalty system while trying to avoid unduly stacking the deck against a defendant. While this balancing approach maybe a perfectly valid approachto drafting legislation,it is plainly inconsistent with the Court’s recent approachto interpreting the Sixth Amendmentbytethering the protections of that amendmentto a historical understanding of what it meant to guarantee a defendant an impartial jury. It is worth noting that in the years since Adams wasdecided -- and while the Court has refined much of its Sixth Amendmentjurisprudenceto ensure that it aligns with the Framers’ understandings-- the Court has never examined whetherthere is any historical support for the Adams death qualification standard. (See,e.g., Lockhart v. McCree (1986) 74 476 U.S. 162; Uttecht v. Brown (2007) 551 U.S. 1.) Indeed, in Uttecht the Court explicitly noted that the relevant “principles”established in the case law create a standard that seeks to “balance”the interests of the defendant against theinterest of the state -- without even contemplating whetherthe “impartial jury” guarantee permits such “balancing.” (551 U.S.at p 9.)° Ultimately, as the Court’s more recent pronouncements makeclear, the propriety of death qualifying under the Adams standardin light of the Sixth Amendment depends not on whetherthat standard accommodates competing interests, but whetherit violates the historical understanding of an impartial jury codified in the Sixth Amendment. As discussed below,it plainly does. D. The Framers Intended The “Impartial Jury” Guarantee To Prohibit Jurors From Being Struck Based On Their Views Of The Death Penalty. Permitting jurors to be struck for cause because of their views toward the death penalty is antithetical to the Framers’ understanding of an “impartial jury.” When the 6 Whether the Adamsstandard actually does result in a jury that is “balanced”in terms of attitudes towards the death penalty is very much an open question. Justice Stevens recognizedthat, in fact, the Adamstest does not result in a balanced jury atall, but results in a jury “biased in favor of conviction.” (Baze v. Rees (2008) 553 U.S. 35, 84, Stevens,J., dissenting). 75 Sixth Amendment was adopted, neither prosecutors nor defense counsel were permitted to exclude a juror based onthat individual’s attitude toward the death penalty. Jurors were permitted to consult their conscience and, in this limited way,“find the law” in addition to “finding the facts.” Indeed, this was -- and should continueto be -- a critical component of the Sixth Amendment’s “impartial jury” protection. Steeped in the experience of overreaching criminal laws(such aslibel laws that were used to punish political dissidents), the Framers consideredajury to be the conscience of the community, serving as an important bulwark against the machinery of the judiciary. The jury wasfree to use its verdict to reject the application of a law that it deemed unjust -- indeed, it was its duty to do so -- and this was (and should again be) at the heart of the “impartial jury” guaranteedtoall criminal defendants under the Sixth Amendment.’ At commonlaw,striking a juror on the basis of bias, or “propter affectum,” was limited to circumstancesin which the jury had a bias toward a party (relational bias);it did not include striking a juror on the basis of her opinion of the law orthe range of 7 A juror couldstill be struck for cause for refusing to deliberateat all. Consistent with the Framers’ understanding, however, the Sixth Amendment’s “impartial jury” guarantee ensuresthat a criminal defendant’s case is tried before a jury that, upon deliberating, can consult their consciences and considerthe fairness and justice of the law and punishmentthe jury is asked to apply. 76 punishmentfor breaking the law. As Blackstone cogently articulated: “Jurors may be challenged propter affectum, for suspicion ofbias or partiality. This may either be a principal challenge, or to the favour. A principal challenge is such where the cause assigned carries with it prima facie evident marks of suspicion, either of malice or favour: as, that a juror is of kin to either party within the ninth degree; that he has been arbitrator on either side; that he has an interest in the cause; that there is an action depending between him andthe party; that he has taken money for his verdict; that he has formerly been a juror in the samecause;that he is the party’s master, servant, counselor, steward or attorney,or of the same society or corporation with him:all these are principal causes of challenge; which,if true, cannot be overruled for jurors must be omni exceptione majores.” (3 William Blackstone, Commentaries on.the Laws of England 363.) Chief Justice Marshall acknowledged this exact understanding of the propter affectum challenge, and its connection to the Sixth Amendment, in United States v. Burr (C.C.Va. 1807) 25 F. Cas.49, 50, noting that“{t]he end to be obtained is an impartial jury; to secure this end, a manis prohibited from serving on it whose connection with party is suchas to induce a suspicion ofpartiality.” And the limited understanding of “bias” or “partiality” is not somehistorical footnote: at the time of the Framers, bias as to the law was both welcomed and expected from jurors. The colonial and early American 8 Blackstone specified three other groundsjustifying exclusion of a juror: propter honoris respectum, which allowed challenges on the basis of nobility; propter delictum, which allowed challenges based on prior convictions; and propter defectum, which allowed challenges for defects, such as if the juror was an alien or slave. (Id. at pp. 361-364.) 77 experience teachesthat the right to reject the law as instructed wascrucial to therole the jury playedin its check against the judiciary and executive. For example, when England made the stealing orkilling of deer in the Royal forests an offense punishable by death, English juries responded by committing “pious perjury,” i.e., rejecting these politically motivated laws by acquitting the defendant of the charged offense. (John Hostettler, Criminal Jury Old and New: Jury Power from Early Timesto the Present Day 82 (2004); see also Sparfv. United States (1895) 156 U.S. 51, 143 [Gray, J., and Shiras,J., dissenting] [observing that juries in England and America returned general verdicts of acquittal in order to save a defendant prosecuted under an unjustlaw].) Onewell known example of such “pious perjury” is the 1734trial of John Peter Zenger. The Royal Governor of New York,in an effort to punish Zengerfor hiscriticism of the colonial administration, prosecuted Zenger for criminallibel. Andrew Hamilton, representing Zengerattrial, argued that jurors “have the right beyond all dispute to determine both the law and the fact” and thus could acquit Zenger on the basis he was telling the truth, even thoughthelibel lawsat the time did not provide that truth was a defense. (James Alexander, A Brief Narrative of the Case and Trial of John Peter Zenger 78-79 (Stanley N. Katz ed., 2d ed. 1972).) Zenger was acquitted on a general verdict. Thistrial, and otherslike it, provides necessary context for understanding what animated the Framers’ intent in guaranteeing a defendantthe constitutional right to an impartial 78 jury. Reinforcing how the Framers themselves viewedthe issue, a different (and even more famous) Hamilton successfully made a similar argument seventy yearslater on behalf of a man accusedof libeling John Adams and ThomasJefferson. In that case Founding Father Alexander Hamilton argued: “Tt is admitted to be the duty of the court to direct the jury as to the law, and it is advisable for thejury, in most cases, to receive the law from the court; andin all cases, they ought to pay respectful attention to the opinion of the court. But, it is also their duty to exercise theirjudgments uponthe law, as well as the fact; and if they have a clear conviction that the law is different from whatit is stated to be by the court, the jury are bound, in such cases, by the superior obligations of conscience, to follow their own convictions.It is essential to the security of personal rights and public liberty, that the jury should have and exercise the power to judge both of the law andof the criminal intent.” (People v. Croswell (N.Y. Sup. 1804) 3 Johns. Cas. 337, 346, emphasis added.) Atbase,the notion of striking a juror because of his opinion on the propriety of the law wasentirely foreign to the nation’s founders. In fact, it was expected that the jurors would follow their conscience and render a verdict that was against a law they deemed unjust -- this wasat the heart of the impartial jury as understood by the Framers. As John Adams wrote in 1771: 79 “And whenever a general Verdict is found, it assuredly determines both the Fact and the Law. It was neveryet disputed, or doubted, that a general Verdict, given under the Direction of the Court in Point of Law, wasa legal Determination of the Issue. Therefore the Jury have a Powerof deciding an Issue upon a general Verdict. And,if they have, is it not an Absurdity to supposethat the Law would oblige them to find a Verdict accordingto the Direction of the Court, against their own Opinion, Judgment, and Conscience[?]” (1 Legal Papers of John Adams 230 (L. Kinvin Wroth & Hiller B. Zobel eds., 1965). (See also Akhil Reed Amar, America’s Constitution 238 (2005) [Alongside their right and powerto acquit against the evidence, eighteenth century jurors also claimedthe right and powerto determining legal as well as factual issues -- to judge both law and fact ‘completely’ -- when rendering any general verdict.”].) This principle was echoed in the instructions given by Chief Judge Jay who,at the end ofa trial before the Supreme Court, charged the jurors with the “good old rule”that: “on questionsoffact, it is the province of the jury, on questionsof law,it is the provinceof the court to decide. But it must be observed that by the same law, which recognizes this reasonable distribution ofjurisdiction, you have nevertheless a right to take upon yourselves to judge ofboth, and to determine the law as well as thefact in controversy. On this, and on every other occasion, however, we have no doubt, you will pay that respect, which is due to the opinionof the court: For, as on the one hand,it is presumed, that juries are the best judgesof facts; it is, on the other hand, presumable, that the court are the best judges of the law. Butstill both objects are lawfully, within your powerofdecision.” (Georgia v. Brailsford (1794) 3 U.S. 1, 4, emphases added). 80 Indeed, the importanceof this right was widely shared by those attending the Constitutional Convention. (See Federalist 83 (Hamilton), reprinted in The Federalist Papers 491, 499 (Clinton Rossiter ed., 1961) [“The friends and adversaries of the plan of the convention,if they agree in nothing else, concur at least in the value they set upon the trial by jury; or if there is any difference between them it consists in this: the former regardit as a valuable safeguard to liberty; the latter represent it as the very palladium of free government.”].) The current death-qualification “substantial impairment”standard reflects none of this -- and conflicts with all of it. To the Founding Fathers, it was the solemn duty of a jury to issue a verdictreflecting the jury’s conscience. There was no exceptionto this rule carved out for cases wherethe state sought a sentence of death. Thus, the substantial impairment test announced in Adamsin 1980 -- designed as a way to accommodate the interests of the state -- contradicts the intent and understanding of the Framersof the _ Sixth Amendmentand erodes the Sixth Amendment’s guarantee of an impartial jury whereit is needed most. Application of that test in this case violated Mr. Rices’s Sixth Amendmentrights and requires that the penalty judgment be reversed. It is true, of course, that in contrast to some of the Court’s Sixth Amendmentcases such as Walton and Roberts -- where the Court’s historical approach hasalready resulted 81 in these decisions being overruled -- the Supreme Court has notyet been askedto revisit Adamsbasedonthis identical approach. But this should not changetheresult here. Article I, section 16 of the California Constitution, originally enacted in 1850, providesthat“[t]rial by jury is an inviolate right and shall be securedto all... .” This Court has long recognizedthat the state right to a jury trial “is the right as it existed at commonlaw, whenthe state Constitution was first adopted.” (Cornette v. Department of Transportation (2001) 26 Cal.4th 63, 75-76. Accord Crouchmanv. Superior Court (1988) 45 Cal.3d 1167, 1173-1274; C & K Engineering Contractors v. AmberSteel Co. (1978) 23 Cal.3d 1, 8-9; People v. One 1941 Chevrolet Coupe (1951) 37 Cal.2d 283, 287.) As this Court has noted, in assessing the scope ofthe state jury trial guarantee,“[i]t is the right to trial by jury as it existed at common law whichis preserved; and whatthat rightis, is a purely historical question, a fact whichis to be ascertainedlike any other social, political or legal fact. The rightis the historical right enjoyed at the time it was guaranteed by the Constitution.” (People v. One 1941 Chevrolet Coupe, supra, 37 Cal.2d at p. 287.) Thus, in order to determine if the Adams “substantial impairment”test violated Mr. Rices’s right to a jury trial underthe state constitution, this Court must examine the common law. And as the above analysis of the commonlaw shows,the substantial 82 impairmenttest is simply irreconcilable with the common law. Assuch,the trial court’s use of that test to permit juror dischargesnot only violated the Sixth Amendment,butit violated the state constitution as well. Of course, in making this argument Mr. Rices recognizesthe similarity between the state and federal constitutional jury trial guarantees. But as Article 1, Section 24 of the California Constitution establishes, the “{rlights guaranteed by this Constitution are not dependent on those guaranteed by the United States Constitution.” And as numerous justices of this Court have madeclear over the years, in assessing the independentforce of the state constitution, the Court “should disabuse[itself] of the notion that in matters of constitutional law and criminal procedure we must always play Ginger Rogers to the high court’s Fred Astaire -- always following, never leading.” (People v. Cahill (1993) 5 Cal.4th 478, 557-558 [Kennard,J., dissenting]. Accord People v. Flood (1998) 18 Cal.4th 470, 547 [Mosk,J., dissenting].) It is time to lead. The historical evidence is clear. The substantial impairmenttest violates both state and federal law. Reversal of the penalty phaseis required. 83 VI. THE TRIAL COURT COMMITTED PREJUDICIAL ERROR, AND VIOLATED MR. RICES’S STATE AND FEDERAL CONSTITUTIONAL RIGHTS, BY FORCING HIM TO TRIAL IN A COMMUNITY WHERE A SUBSTANTIAL PORTION OF THE JURY POOL HAD BEEN EXPOSED TO HIGHLY INFLAMMATORYPRETRIAL PUBLICITY. A. The Relevant Facts. “They Should KILL Them NIGGA’S[sic],” wrote one potential juror who followed media’s coverage in this case. (24 CT 6019.) “He needsto fry,” wrote another. (26 CT 6393-6394.) “In my opinion these two guys should be hanged on the courthouse lawn! Also the hanging should be shown on every network T.V.station in the world,” wrote yet another. (12 CT 2636.) Like 98.8 percent of the venire, these three potential jurors lived in East San Diego County (“East County”). (12 CT 2625; 24 CT 6008; 26 CT 6382.) And in many ways, these three jurors reflected the sentiment of East County. As another East County resident told a newscaster, “They should hang him here,in front of the liquorstore.” (2 CT 266.) These crimes occurred in East County. The victims in this case were Chaldean, a Catholic sect made up of people of Iraqi descent. (2 CT 195.) Asthe parties below 84 recognized, there was a large Chaldean population in San Diego County,andnearly all of them lived in East County. (2 CT 213.) The media coverage wasintense. Ten monthsbefore trial began, defense counsel for Mr. Rices moved to change venue. (2 CT 192.) Counselattached to his initial moving papers 94 media accounts of the crimes, taken from local newspapers and newsstations. (2 CT 217-348.) In these newspieces, the media described the crimes as “execution-style” murders 55 times.” Other media accounts repeatedly described the crimes as “brutal” and “cold-blooded,” as well as “evil,” “horrible,” and “horrific.” A prominent local politician declared, “The personthatdid this is... an animal.” (4 CT 220.) Numerousarticles contained references to inadmissible evidencethat the jury would never hear. Thus, while the trial court ruled the state could not present evidence that Mr. Rices “bragged”aboutthe crimes, the mediadid just that. (4 RT 665-666.) Counsel’s venue change motion contains no fewer than 10 references to this 9 2CT 219, 221 [twice], 252, 254 [twice], 255, 258, 267, 269, 274, 275, 282, 285, 287, 288, 290, 292, 295, 305, 306, 310 [twice], 312 [three times], 313, 314, 316 [twice], 319 [twice], 322 [twice], 324, 325, 327, 328 [twice], 330 [twice], 332, 334 [twice], 335 [twice], 336 [twice], 337, 340, 341, 343, 345 [twice], 348. © 2CT 275 [“brutal”], 288 [“‘cold-blooded”], 303 [“cold blooded,” “evil,” “brutal,” “cold-blooded”], 310 [“brutal’”’], 312 [“brutal’’], 323 [“cold blood,” “brutal’], 328 [“cold- blooded”], 330 [“horrific,” “horrific,” “horrible,” “cold-blooded,” “horrible”], 334 [“brutal’”’}, 348 [“brutal’’]. 85 unsubstantiated and inadmissible “bragging” evidence.'’ Other published newsarticles claimed thatthe safety of various witnesses was in danger becauseof their cooperation, and that several were placed in the witness protection program; again the jury never heard any of this information. (2 CT 251, 293, 325, 327, 332.) Media accounts also questioned Mr. Rices’s competency. (2 CT 292, 319, 321.) Priorto trial, Mr. Rices pled guilty. The only thing for the jury to decide, then, was whether Mr. Rices should live or die. Media claims that Mr. Rices was an “animal,” “coward[],” “dangerous,” and “a danger to the community” who “[had] no conscience” thus wentto the heart of the issue. (2 CT 220, 270, 275, 278, 279.) Given the inflammatory coverage, the venue motion was supported by a survey the defense conducted of potential jurors throughout San Diego County. (2 CT 193-194.) The survey was brokenup into three geographic areas: (1) East County, (2) North County, and (3) Central/South County. (/bid.) Theresults were stark. 70 percent of potential jurors in East County had been exposedto pretrial publicity, 28 percent of whom believed Mr. Rices was guilty. (4 CT 194.) In contrast to East County, only 46 percent of potential jurors from North County "2 CT 250 [three times], 252, 293, 323, 324, 325, 326, 327. 86 had heardof the case, 16 percent of whom believed Mr. Rices was guilty. (Ibid.) Similarly, in Central and South County, only 49 percent of potential jurors had been exposedto pretrial publicity, 24 percent of whom believed Mr. Rices wasguilty. (Ibid.) Recognizing the widespread publicity, the defense moved for a change of venue. (2 CT 200-212.) In the alternative, given that the publicity was focused on East County -- where the crimes had occurred -- defense counselaskedthetrial court to transfer the case to North or Central County, where far fewer potential jurors knew of the case. (2 CT 213-215.) The risk to Mr. Rices’s right to an impartial jury wasnotlost on the prosecutor. Indeed, recognizing that East County was far more saturated with pretrial publicity, and in an attemptto avoid havingthe trial movedoutof county -- or to anotherjudicial district within the county -- the prosecutor agreed “to draw jurors from the entire county of San Diego andnotjust the jury pool in East County.” (3 CT 569.) Of course, a countywidevenire is entirely proper. (See Code Civ. Proc., § 198.5 [‘‘{T]he court, in its discretion, [may] order[] a countywide venire in the interest of justice.”].) But, as the parties would cometo learn at the hearing on the motion to change venue, measures beyondtheir control made a countywide venire impossiblein this case. 87 Prior to the hearing on the venue motion, defendantpled guilty. Doing so triggered yet another waveofpretrial publicity. (See 4 CT 740-758.) As with all of the other publicity, this coverage referred to the crimes as “execution-style” murders and again contained references to evidence the jury would never hear. (See 4 CT 742 [referencing unsubstantiated preliminary hearing testimony of Hooks and Mays, which the jury never heard], 743 [same], 744 [“execution-style”], 756 [“executionstyle” (twice)].) Thus, by the time the venue motion washeard, the media had referred to the crimes as “execution-style” murders at least 58 times. (See Footnote 9, supra,at p. 82.) On November 17, 2008,the trial court heard arguments on defense counsel’s motion to change venue. Counsel asked the court to transfer the case out of San Diego County. (4 RT 621-626.) But counselalso told the court that should the court deny the venue change motion,the parties had agreed on analternative: “T believe the People and the defense are in agreementthat we’re going to ask the court to not only not -- to not draw exclusively from this area ofthe county, in other words, do a complete county draw in this case, and that would be, I believe, a joint request. The People addressthat in their responsive papers, and if we’re going to stay in San Diego County, I think that the polling data that we did reflects that it would be more reasonable that an impartial jury is drawn from a countywide analysis.” (4 RT 621.) Thestate opposed the venue change motion, arguing that a countywide draw would offset 88 the widespreadpretrial publicity in East County and ensure Mr.Rices received fairtrial: “T... ] [A]nd because we’re drawing countywide, there shouldn’t be a problem. We can draw from North County, South County, East County, Central. We’re getting the entire diversity of San Diego County.” (4 RT 628-629.) Thetrial court agreed with counsel that Mr. Rices was muchbetteroff receiving a countywide draw than one from just East County. (4 RT 630.) Whenthetrial court discussed this matter with the jury commissioner, however, the court.learnedthat a local. “policy” presented a problem with this approach. The court summarized the problem: “(By the court]: And then I made an inquiry of [the Jury Commissioner], and she certainly indicated and pointed to a Civil Procedure section that allowsthat, if the interest of justice suggests that it be necessary. That’s CCP 198.5. “But she responded[thatthere is] a policy that a juror summonedfor jury duty can report to any courthouse on the date of the summons. If you live in San Diego, and it says report to the Central Division, and you workin the East County, you comeout to East County, and you fulfill your jury obligation . . [{]. “(The Jury Commissioner] said, ‘I don’t see how wecould changethis rule in a special draw.’ So in other words, if we issued summonsto North county residents, they would all be lining up in North County. ‘Pm not going to drive to East County. Your rules allow meto report here.’ Same with South Bay and Central Divisions probably as well. So it neutralizes the impact of the countywide draw.” (4 RT 630-631.) 89 Despite this policy, the court believed the solution to the venue change motion was a countywide draw. Thus, the court told the parties it had “checked with our jury clerk here, and she indicated, oh, yeah. We have lot of people that show up every Monday morning, Tuesday, whatever, who don’tlive in the East County.” (4 RT 630-631.) The court believed “‘you’re going to get a lot of people anywaythat don’t live in East County.” (4RT 631.) In denying defense counsel’s venue-related motions, the court stated it was “considering the policy of the San Diego Superior Court that allows jurors”to report at courthousesclosest to their work or school, “[a]nd the anecdotal evidence presented to this court from our East County jury clerk is that jury draws in East County result in a numberofjurors who report from non-East County residences.” (4 RT 644. See also 4 RT 646 [trial court denies motion to transfer to another judicial district based in part “on the prospectthat our jury panel will have a numberof individuals wholive in other districts [ensuring] that a fair, impartial jury can be selected”].) Asthe record would show, however,the trial court’s “anecdotal evidence” did not pan out. Instead, a mere 3 jurors -- 1.2% of the total venire -- were from outside of East County. Put another way, a full 98.8% of the venire was drawn from the precise area 90 which had been saturated with the prejudicial publicity. (See Appendix A.)' As morefully discussed below,thetrial court’s refusal to grant the change of venue -- premised on the erroneous assumptionthat a significant number of non-East County jurors would appear -- violated both state and federal law. East County was saturated with publicity about the case. This publicity, much of which wasplainly inflammatory, continued unabated from the time of the crime itself until the timeoftrial. It contained repeated references to inadmissible evidence that the jury would neverhear. The publicity, coupled with the East County draw, madea fair trial impossible. Reversal is required. 2 Atthe hearing on the venue change motion,the parties defined East County. Thus, accordingto thetrial court, East County included thecities of Santee, La Mesa, El Cajon, Lemon Grove, as well as nearby unincorporated areas. (4 RT 629.) According to the prosecutor, East County “extends all the way up to Julian andall the way outto the border and incorporates places like Ramona and Alpine.” (4 RT 634.) Question 4 of the juror questionnaire asked potential jurors to identify the neighborhoodof El Cajon-- or the area of San Diego County -- in which theylived. Using the parties’ own definitions, counsel for Mr. Rices has reviewed the answerto question 4 for each of the 242 juror questionnaires. The results are tabulated in Appendix A. All but one of the 242 prospective jurors referenced an identifiable city or neighborhood. (See 14 CT 3154 [“San Diego County”].) The 241 locations capable of identification show thatall but 3 were inside of East County as the parties themselves defined it. In order to avoid a footnote several pages long, the record citation showing the jurors’ locationsis attached to this brief as Appendix A. 91 B. Because The Pervasive Pre-Trial Publicity Prevented The Court From Seating An Impartial Jury, Reversal Is Required. a The Sixth and Fourteenth Amendments to the United States Constitution guarantee a criminal defendant’s right to be tried by a fair and impartial jury. (Groppi v. Wisconsin (1971) 400 U.S. 505, 508.) Reversal is required when the record demonstrates that the community wherethe trial was held was saturated with prejudicial and inflammatory publicity about the crime. (See, e.g., Rideau v. Louisiana (1963) 373 U.S. 723, 726-727. Accord Murphy v. Florida (1975) 421 U.S. 794, 798-799; Sheppard v. Maxwell (1966) 384 U.S. 333, 352-355, 363; Harris v. Pulley (9th Cir. 1988) 885 F.2d 1354, 1361.) In this situation, a defendant need not demonstrate actual prejudice. (Sheppard v. Maxwell, supra, 384 U.S.at p. 352; Rideau v. Louisiana, supra, 373 U.S.at pp. 726-727; Harris v. Pulley, supra, 885 F.2d at p. 1361.) As morefully discussed below,this test has been met here. The degree of prejudicial pre-trial publicity foreclosed any possibility that Mr. Rices would receive a fair trial. The record showsthat (1) the trial venue was saturated with hostile publicity, (2) this adverse publicity included frequent references to evidence which could never comebefore the jury, and (3) an overwhelming percentage of East County residents eligible to serve on the jury were fully aware of this hostile publicity. Reversal is required. 92 1. Thelegal standard. As noted above, when a defendant is convicted by a jury drawn from a community which hasbeen saturated with prejudicial publicity about the crime, reversal may be required. (Murphy v. Florida, supra, 421 U.S.at pp. 798-799; Rideau v. Louisiana, supra, 373 U.S. at pp. 726-727. ) The ultimate question is whether the record showsit is “reasonably likely” pervasive pre-trial publicity resulted in an unfairtrial; if so, reversal is required. (Sheppard v. Maxwell, supra, 384 U.S.at p. 363; People v. Williams (1989) 48 Cal.3d 1112, 1125-1 126.) Asthis Court has made clear on numerousoccasions, “the phrase ‘reasonable likelihood’ denotes a lesser standard of proof than ‘more probable than not.’” (People v. Vieira (2005) 35 Cal.4th 264, 279. Accord People v. Williams, supra, 48 Cal.3d at pp. 1125-1126.) Wherea trial or reviewing court is making a pre-trial determination whether the defendantcan receivea fair trial in a particular county -- courts consider a number of factors, including (1) the nature of the offense, (2) the nature and extent of the publicity, (3) the size of the community, (4) the status of the defendant in the community and(5) the status of the victim. (See, e.g., Williams v. Superior Court (1983) 34 Cal.3d 584, 588; Odle v. Superior Court (1982) 32 Cal.3d 932, 937; Martinez v. Superior Court (1981) 29 Cal.3d 574, 578.) In order to prove there is a reasonable likelihood of an unfair trial, a 93 defendant need not prove “the community was aroused to an emotional fever pitch.” (People v. Williams, supra, 48 Cal.3d at p. 1128.) Instead,“the possibility of an unfair trial may originate in widespread publicity describing facts, statements and circumstances whichtendto create a belief in [defendant’s] guilt.” (Ibid. Accord People v. Tidwell (1970) 3 Cal.3d 62, 70; People v. McKay (1951) 37 Cal.2d 792, 797 [reversal required whereat the timeoftrial, pre-trial publicity had created a “cool, widely held conviction that defendants were guilty and should be tried and sentenced to death as expeditiously as possible.”].) The risk of an unfair trial from pre-trial publicity is significantly heightened whenthe publicity includes prejudicial information which is inadmissible at trial. (See, e.g., Sheppard v. Maxwell, supra, 384 U.S. at pp. 356-357. Compare People v. Leonard (2007) 40 Cal.4th 1370, 1396 [no risk of unfair trial where pretrial publicity did not discuss any inadmissible evidence]; People v. Ramirez (2006) 39 Cal.4th 398, 434 [same].) And as this Court held long ago, “when a defendant’s life is at stake, the rule [is] that all doubts [must] be resolved in favor of venue change... .” (Martinez v. Superior Court, supra, 29 Cal.3d at p. 585.) This Court has also madeclear the standard of review in applying the reasonable likelihood test. “Whetherraised [pretrial] or on appeal from judgmentof conviction, the reviewing court must independently examine the record and determine de novo whether a fair trial is or was obtainable.” (People v. Williams, supra, 48 Cal.3d at p. 1125. Accord 94 People v. Alfaro (2007) 41 Cal.4th 1277, 1321; People v. Welch (1972) 8 Cal.3d 106, 113; People v. Tidwell, supra, 3 Cal.3d 68-69.) Federal reviewing courts take the same approachto ensuringfair trials, employing de novoreview. (See,e.g., Harris v. Pulley, supra, 885 F.2d at p. 1360. Accord Murphy v. Florida, 421 U.S.at p. 802; Sheppardv. Maxwell, supra, 384 U.S.at pp. 345-349; Irvin v. Dowd, supra, 366 U.S.at pp. 725-726.) Several cases show how these factors are applied in practice. In Martinez v. Superior Court, supra, 29 Cal.3d 574,this Court held that a capital murder defendant could not be given fair trial because ofpretrial publicity. There, defendant was charged with a single count of murder, three counts of robbery, and one count of attempted robbery. In the year before the motion to change venue wasfiled, there were 97 articles published about the case. As this Court noted, “[t]he press gave substantial coverage to the fact that the accused forced the patronsto lie face down onthefloor during the robbery andshotthe victim at close range in the back.” (Id. at p. 579.) Manyarticles painted defendantas a “cold-blooded” murderer who committed an “execution-style” murder. (Id. at p. 582.) Based on the population of the county and the newspaper circulation, this Court believed roughly half of the venire had been exposedtothis pretrial publicity, noting that “{sJuch characterizations can easily become embeddedin the consciousness of the community, especially a small one.” (/d. at p. 579, fn. 1, 585.) 95 Other cases, too, describe when a change of venue is proper. In Peoplev. Williams, supra, this Court reversed a capital murder conviction and death sentence because of prejudicial pretrial publicity. There, defendant was charged with capital murder. During the nine-month period between defendant’s arrest and the change of venue motion “more than 50 newspaper and radio reports appeared ....” (48 Cal.3d atp. 1127.) Thetrial court denied defendant’s motion to change venue and defendant was convicted and sentenced to death. On appeal, defendant contended the record showed a “reasonable likelihood”the pre-trial publicity precludeda fairtrial. This Court performeda detailed de novo review of the media coverage, noting that manyof these reports “were front-page orleadarticles.” (Jbid.) The court characterized these articles as “frequently sensational” and noted that some detailed statements “were inadmissible due to a ‘Miranda’ violation.” ([bid.) Some ofthe stories “focused on preliminary hearing evidenceand sheriff’s statements indicating that defendant wasthe actual ‘triggerman’....” ([bid.) The Court concludedthat the media coverage constituted “extensive, sometimes inflammatory pretrial publicity” which “suggest[ed] to the persons who werepotential jurors . . . the probability that petitioner was the actual killer.” ([bid.) Based on thepre-trial publicity this Court held “a brutal murder had obviously become deeply embeddedin the public consciousness” and “it is more than a reasonable possibility that the case could not be viewed with the requisite impartiality.” 96 (48 Cal.3dat p. 1129.) Rideau y. Louisiana is also an instructive case. There, defendant was charged with murder and confessed in a filmed interrogation. This confession was broadcastthree times on television over the next two days. Althoughtrial did not occur for nearly two months, defendant moved for a change of venue. The motion was denied. Ultimately, only three of the twelve seated jurors had seen the televised confession. After defendant was convicted of murder, he contended that his conviction by a jury drawn from a community exposedto this televised evidence violated Due Process. Although none of the three jurors who saw the confession declared a belief in defendant’s guilt during voir dire, and each explicitly promised the court they could put the confession aside and be impartial, (373 U.S. at pp. 725, 732), the Supreme Court nevertheless concluded reversal wasrequired “without pausing to examine a particularized transcriptof the voir dire examination of the membersof the jury... .” (/d. at p. 727.) “Any subsequent court proceedings in a community so pervasively exposed to such a spectacle could be but a hollow formality.” (Id. at p. 726. See also Sheppard v. Maxwell, supra, 384 U.S.at pp. 356-357 [finding constitutional violation wherepretrial publicity included substantial referencesto facts that were inadmissible at trial, such as fact that defendant exercised his constitutional right to a lawyer, that he had sexual relations with womenother than his wife, and that he was allegedto be liar; held, Supreme Court reverses, noting that 97 “much of the material printed or broadcast . . . was never heard from the witness stand.”’]; Marshall v. United States (1959) 360 U.S. 310, 313.) The decision in United States v. Skilling (2010) 561 U.S. 358, 130 S.Ct. 2896,is useful in showing the type of publicity which will not result in an unfair trial. There, defendant was charged with securities fraud arising out of the Enron collapse. Based on the pre-trial publicity, he moved for (and was denied) a change of venue. The Supreme Court concluded there was no constitutional violation under the facts of the case, noting (1) defendant wastried in Houston,the fourth largestcity in the country, with a population of 4.5 million, (2) 40% of people surveyed had never heard of defendant, (3) the publicity about Enron had diminished substantially in the four years between Enron’s collapse andthetrial, (4) very little of the publicity actually named the defendant, (5) the jury acquitted defendant on nine counts, and (6) the publicity did not contain “prejudicial information.” (130 S.Ct. at pp. 2915-2916 and notes 15 and 17.) Taken together, these cases articulate the framework for analysis of the pretrial publicity here. Ultimately, the question is whether the nature and extentof thepretrial publicity made it “reasonablylikely’ that Mr. Rices could not be afforded a fair trial. It is 98 to that question Mr. Rices now turns.'? 2. Thepre-trial publicity here created a perception that Mr. Rices was a “dangerous” “animal,”and that the murders were “cold-blooded,” “execution-style” slayings. The media coverage began immediately after the crimes occurred. The crimes were immediately dubbed “execution-style” murders. (See,e.g., 2 CT 221 [March3, 2006 article].) The coverage continued during a funeral involving “hundreds” of mourners. (See, e.g., 2 CT 223.) The El Cajon Police Chief declared that “[t}his crime [ ] has victimized the entire community.” (Ibid.) The Chief declared, “I think the people of El Cajon havea rightto be outraged bythis... .” (Ibid.) Auday Arabo, another prominentpublic figure, declared, “I have a messagefor the cowards. There is no place you can hide. There is no place safe for you. The loss and anguish you causedthis community will never be forgotten.” (2 CT 224.) According to these press accounts, 13 As the above discussion of Skilling demonstrates, in addition to examining the facts of cases like Williams, Tidwell, Maxwell and Rideau -- where courts have found a . reasonablelikelihoodthat pre-trial publicity preventeda fair trial -- it is also useful to look at the facts of cases where courts have reached a contrary result. (See, e.g., People v. Alfaro, supra, 41 Cal.4th at p. 1322 [20 articles over 22 month period notconsidered extensive publicity]; People v. Panah (2005) 35 Cal.4th 395, 448 [18 articles over 12 month period not considered extensive, especially where articles ended more than one year prior to venue motion]; People v. Vieira, supra, 35 Cal.4th at p. 280-281 [no reasonable likelihood of unfair trial where publicity “quickly subsided” and wasnot “persistent and pervasive”); People v. Welch (1999) 20 Cal.4th 701, 744 [publicity not extensive where it ended twoyears prior to venue motion].) 99 many mourners called for the death penalty: “They should hang him here,in the front of the liquor store. This way, he never doit again.” (2 CT 266.) “Eye for an eye, tooth for a tooth.” (Ibid.) “T don’t think he have [sic] a heart. No heart, and this guy, I don’t think he’s gonna have life.” (2 CT 267.) Thearticles were not simply objective discussions of the facts. Thus, the media describedthe preliminary hearing testimony of Dwayne Hooks and Debbie Mays-- “witnesses” from whom the jury would neverhear -- in which both claimed that Mr. Rices said he killed Mr. Firas after the latter attempted to remove his mask. (2 CT 250, 252, 293, 295, 324; 4 CT 742, 743.) Of course, since the surveillance video showedthat Mr. Rices did not wear a mask (see 11 RT 1648-1649), this information wasentirely false. In any event, both Hooks and Maysalso claimedthat Mr. Rices shot Ms. Mattia after she refused to open the safe. (2 CT 250, 252, 294, 334, 335; 4 CT 742, 743.) But the store had no safe. (12 RT 1833.) Making matters worse,like Sheppard, significant amountsof the pre-trial publicity focused on evidencethat wasplainly inadmissible. Thus, numerousarticles detailed claims by Hooks and Maysthat Mr. Rices “bragged” about Ms. Mattia’s feet moving after 100 she was shot. (2 CT 250, 252, 293, 323, 324, 325, 326, 327..) Thetrial court explicitly ruled this “highly prejudicial” evidence inadmissible attrial. (4 RT 665-666.) But the media reported on this inadmissible evidence repeatedly. The media and numerouspoliticians also repeatedly referred to Mr. Rices as being “dangerous”and “‘a danger to the community.” (2 CT 277, 278, 279, 280.) Thetrial court also ruled this evidence inadmissible. (See 15 RT 2276-2277.) The articles also extensively covered Mr. Rices’s competency proceedings. (2 CT 292, 319, 321.) The coverage about Mr. Rices’s competency continued even after a judge found him fit to stand trial, with one station playing a video of Mr. Rices’s courtroom “rage” in which he was removed from the courtroom. (2 CT 291-292.) The jury would hear noneofthis evidence either. The overarching narrative of this coverage -- spanningasit did over the course of two and onehalf years and continuing through the venue change motion -- was that Mr. Rices was a “dangerous” “animal” who committed two “horrible,” “brutal,” “execution style” murders, and the “outraged” community had already determined Mr.Rices deserved to die. 101 This case is just like Martinez. In Martinez, reversal was required where there were 97articles about the case and 50% of the venire had been exposed to the publicity. Here, defense counsel’s initial and responsive venue change papers contained more than 100 discrete news accounts of the crimes. As discussed above, the media referred to these crimes as “execution-style” at least 58 times. There were also countless other accounts of the murders as being “evil,” “cold-blooded,” “horrible,” and so on. Mr. Rices was described as “dangerous”and “an animal.” And, far worse than Martinez, a full 70 percent of the venire had been exposedto this publicity. (Compare People v. Williams, supra, 48 Cal.3d 1112 [reversal required where 50 articles about the case appearedin the press].) The prosecutordid not dispute these numbers. Instead, as noted above,the prosecutortook the position that “there shouldn’t be a problem” becausethe jury panel would be drawn “from North County, South County, East County, Central. We’re getting the entire diversity of San Diego County.” (4 RT 628-629.) Based on discussions with the jury commissioner and “anecdotal evidence,” the trial court agreed that a substantial portion of the venire would be from outside of East County. The record shows, however, that the court and prosecutor could not have been more wrong. 98.8 percent of potential jurors were from East County. (See Appendix A.) 102 Giventhat “when a defendant’s life is at stake, the rule [is] that all doubts [must] be resolved in favor of venue change... ,” (Martinez v. Superior Court, supra, 29 Cal.3d at p. 585), the trial court erred in leaving the matter to chance. Here, even the prosecutor himself acknowledgedthe risk to Mr. Rices’s fair trial rights with a jury drawn from East County. Yetthat is exactly what happened. The court erred in denying defense counsel’s motion to change venue. Reversal is required. 103 VI. MR. RICES WAS DENIED HIS RIGHT TO CONFLICT-FREE COUNSEL WHEN HIS LAWYER WAS FORCED TO CHOOSE BETWEENBECOMING A WITNESS AT TRIAL OR KEEPING THE CASE AS COUNSEL. A. The RelevantFacts. Mr. Rices was charged in connection with the murdersin this case on November 29, 2006. (1 CT 1.) He wasincarcerated in San Diego County jail to await trial. - Mr.Rices wasinitially represented by the San Diego County Public Defender. (2 RT 3.) In March 2007, the Public Defender declared a conflict, and the trial court appointed an attorney from the Private Conflicts Counsel panel (“PCC”) to represented Mr. Rices. (2 RT 45-47.) The county reached a fee agreement with counsel through PCC. According to paperworkfiled with the court in January 2008, that agreement required the Superior Court to pay counsel $137,000 in legal fees -- separate and apart from expenses-- to represent Mr. Rices throughtrial. (33 Sealed CT 7749-7755.)'* According to the judge whosigned the order, this fee was to “cover attorney’s fees through the endoftrial.” (33 14 The sealed documents referenced at 33 Sealed RT 7749-7755 are covered by California Rule of Court 8.47, subdivision (b)(1)(B). Pursuant to Rule 8.47, subdivision (b)(2), the state may seek a copy of this material. 104 Sealed CT 7754.) The January 2008 termsof the fee agreement were plain. Counselhadalready received $17,000; of the remaining $120,000, counsel was to receive $40,000 “forthwith.” (33 Sealed CT 7754.) This left $80,000 of the fee outstanding; counsel was to receive $40,000 “at the commencementofpre-trial motions hearing” and the balance of $40,000 “after the jury is impaneled.” (33 Sealed CT 7754.) On April 29, 2008 -- well before either the “pre-trial motions hearing”or the jury being impaneled -- Mr. Rices brought a Mardsen motionto replace counsel. (3 RT 411.) Thetrial court held an in-camera hearing outof the presence of the prosecutor. (3 RT 415.) Mr. Ricestold the court that he wanted a new lawyer because he could no longer “work with” trial counsel and “I don’t trust him.” (3C RT 416, 422.)'° Mr. Rices explainedthat he had been experiencing mental health problemsin jail, hearing voices telling him to “kill people”in jail and “slice people’s throats open.” (3C RT 417.) He wasseeking help; he knew hehad a problem becausejail inmates weretelling him he did ‘5 The April 29, 2008 Marsden hearing is covered by Rule 8.47, subdivision (b)(1)(A). Yet again, Rule 8.47, subdivision (b)(2) permits the state to seek a copy of this hearing. 105 things he could not remember. (3C RT 417.) Mr. Rices recognized thatif he told anyjail personnelabouthis mental state they could become witnesses against him: “I felt like I couldn’ttell -- I couldn’t trust a deputy. I couldn’t tell a deputy because, you know,that could be used against me, you know what I’m saying? Probably for mycase, theytell the D.A. that I’m going around killing people.” (3C RT 417.) So Mr. Rices did what he thought wasthe next best thing. He told defense counsel. (3C RT 416, 417.) At the in-camera hearing, defense counsel confirmed that he did indeed speak with with Mr. Rices “and he told mebasically what he told the court.” (3C RT 420.) Of course, once Mr. Rices conveyedthis information to counsel, it put defense counselin a difficult position. Generally, of course, communications from clients are privileged and confidential. (See Evid. Code § 954.) But Evidence Code section 956.5 states that there is no privilege “if the lawyer reasonably believesthat disclosure of[a confidential communication] . . . is necessary to prevent a criminalactthat the lawyer reasonably believesis likely to result in the death of, or substantial bodily harm to, an individual.” California Rule of Professional Conduct 3-100(B) tracks this same language and permits counsel to “reveal confidential information. . . to the extent [counsel] believes the disclosure is necessary to prevent a criminal act that [counsel] reasonably 106 believesis likely to result in death of, or substantial bodily harm to, an individual.” Here, defense counsel had received information from his client that because of mental health issues, he was a serious dangerto others in prison. Pursuant to the Rules of Professional Conduct,after Mr. Rices told defense counsel of his concerns regarding “kill[ing] people”in jail and “‘slic[ing] people’s throats open,” defense did what he could to preventviolence: he called the county jail where Mr. Rices was housed. Mr. Rices madeclear that he and counsel had “agreed for [defense counsel] to tell the watch commanderthat I neededto see the psych, but I didn’t agree for him to disclose information of why I neededto see the psych.” (3C RT 417-418.) According to Mr. Rices, deputies told him that defense counsel called the jail and “told the watch commanderthat [Mr. Rices] feel[s] like being violent to other people.” (3C RT 418.) Mr.Rices believed the attorney-client privilege had been violated when defense counsel revealed the specifics of what Mr. Rices told him. (3C RT 418.) That is why he could no longertrust counsel. (3C RT 416, 422.) _ Again, defense counsel confirmed Mr. Rices’s account. Counsel advised the court that (1) he and Mr. Rices agreed counsel would call the jail staff and (2) after speaking with Mr. Rices, counsel called the watch commanderin an effort to move up the date of 107 Mr. Rices’s meeting with the jail psychiatrist. (3C RT 420.) Counsel said that he told the watch commanderthat Mr.Rices had the potential of “acting out.” (3C RT 420.) Having heard from both parties, the trial court denied Mr. Rices’s Marsden motion. (3C RT 421.)"° Several months later, Mr. Rices attacked officer James Clements in the county jail. As Officer Clements wouldlatertell the jury, on August 8, 2008 Mr. Rices attacked him, hitting him in the head andslicing him with a shank. (15 RT 2320-2324.) Officer Clements had no idea whyhe wasattacked; he did not have any prior confrontations with Mr. Rices and had not had any harsh words with him. (15 RT 2325.) Thestate brought separate charges based on this August 2008 attack, charging Mr. Rices with attempted premeditated murder, along with a deadly weaponuseallegation, an allegation that he inflicted great bodily injury and priorstrike allegation. (See 3 RT 492-495.) On September 4, 2008, Mr. Rices was arraigned on this separate complaint 16 After the Marsden motion was denied, Mr. Rices then shifted gears and asked to represent himself. (3C RT 422.) The court refusedto rule on that separate motion, preferring to set another hearing date to discuss the requestfor self-representation. (3C RT 422.) The court explained its view that often a request for self-representation is simple a “kneejerk” reaction to a Marsden denial, and the court wanted to be sure Mr. Rices really wanted to represent himself. (3C RT 422.) The court set a hearing date on that motion for May 6, 2008. (3C RT 422.) At the May6 hearing, Mr. Rices withdrew his separate request to represent himself. (3 RT 426.) 108 and his lawyer on the pending death penalty case was appointed to represent him in this separate case as well. (3 RT 447.) One month later, defense counsel had Mr. Rices plead guilty to these charges. (3 RT 492-495.) On September 19, 2008, the state amendedits notice of aggravating evidence. (3 CT 678.) The amendednotice advised defense counselin plain terms that the state would be introducing “[e]vidence of the attack on Sheriffs personnel with a razor shank on August8, 2008.” (3 CT 681.) True to its word, the prosecution called Officer Clementsto testify at the penalty phase. (15 RT 2311.) In rebuttal, defense counsel did not introduce any evidence suggesting this assault was related to Mr. Rices’s April 2008 plea for help with the voices he washearingtelling him to harm peoplein jail. Defense counsel did not offer to testify to Mr. Rices’s April 2008 plea for help. Instead, defense counsel (1) cross-examined officer Clements, (2) suggested the attack was motivated by the fact that officer Clements might have dropped a meal of Mr. Rices’s while serving food and (3) arguedthat officer Clements’s actions were “unacceptable.” (15 RT 2327-2328; 19 RT 2765.) In light of the defense position,it is perhaps not surprising that the prosecutorin closing argumentrelied on the attack on officer Clements in urging the jury to impose 109 death. (19 RT 2751-2752.) According to the prosecutor, Mr. Rices “without any provocation, without any reason whatsoever, he goes over and . . starts slicing him up with a razor... trying to kill him. That’s your glimpseinto Jean Pierre Rices.” (19 RT 2752.) He urgedthejury to consider the concept of future dangerousness based on the assault on officer Clements: “{D]o not think for one momentthat his interaction with staff in a prison setting is going to change. .. . Someone’s son, someone’s daughter worksin our prisons. They are exposed to the people whoare alive and keptalive in our prisons. They are and will be exposed to Jean Pierre Rices..... And based uponthis defendant’s violent criminal behavior, both before, during and after this crime, he is a danger to those people.” (19 RT 2753.) As morefully discussed below, and for four separate reasons, the death sentence in this case must be reversed. First, as discussed in Argument B below,through no fault of his own defense counsel was operating undera stark conflict of interest which violated both the state and federal constitutions. On the one hand, the fee agreement offered by the county gave counsela substantial financial interest in remaining as counsel on the case. On the other hand, counsel alone was in a unique position to serve as a mitigation witness and provide (1) factor (k) evidence regarding Mr. Rices’s plea for psychiatric assistance in county jail and (2) evidence which explainedthat the attack on officer Clements was something other than an unprovoked attack on a prison guard (asthe state hypothesized) but instead was the result of voices which Mr. Rices was hearing and doing 110 his best to resist for months. But serving as a mitigation witness would have required counsel to terminate his work on the case. In other words, the nature of the county fee agreement required counsel to makethecritical tactical decision as to what mitigating evidenceto present while laboring under a patent conflict of interest. Second, as discussed in Argument C below,because the conflict in this case involved decisions made in connection with the presentation of mitigating evidence at a capital sentencing proceeding, the conflict also violated the special reliability requirements of the Eighth Amendment. Third, as discussed in Argument D below,evenif the record is insufficient to establish a conflict of interest under the state and federal constitutions, a remandis required because althoughthetrial court was aware of the facts on which the conflict was based, it made no inquiry at all into the conflict.. And fourth, as discussed in Argument E below, even apart from the conflict of interest issue, reversal is required because defense counsel was undera state-law obligation to withdraw from representing defendant once it becameclear he should have been a witness at the penalty phase. 111 B. Because The County Fee Agreement Forced Trial Counsel To Make Critical Tactical Decisions Relating To The Penalty Phase While Laboring Under A Conflict Between The Client’s Interest And His Own, Reversal Is Required. Underboth the state and federal constitutions, Mr. Rices wasentitled to the effective assistance of counsel in connection with the penalty phase of his trial. (See Wiggins v. Smith (2003) 539 U.S. 510 [granting penalty phase relief where counsel failed to provide effective assistance of counsel at penalty phase of capital trial].) Since Mr. Rices was constitutionally entitledto. competent counselat his penalty phase,it follows. that he wasentitled to a lawyer who would maketactical decisionsat the penalty phase free from a conflict of interest. (See Woods v. Georgia (1981) 450 U.S. 261, 271 [‘‘[w]here a constitutional right to counsel exists, our Sixth Amendmentcases hold that there is a correlative right to representation that is free from conflicts of interest.”’].) Of course, the right to conflict free counsel -- like the right to counselitself -- arises underboth the federal and state constitutions. (Holloway v. Arkansas (1978) 435 U.S. 475; People v. Bonin (1989) 47 Cal.3d 808, 833-834.) In the absence of a knowing and intelligent waiver, the existence of an actual conflict of interest that undermines the loyalty and performanceof counselviolates both the federal and state constitutions. (Wood v. Georgia, supra, 450 U.S.at p. 272; People v. Mroczko (1983) 35 Cal.3d 86, 103-105.) 112 Underboth state and federal law, to obtain relief because of a conflict of interest a defendant mustfirst establish there was an actual conflict of interest. Although a conflict frequently arises in a multiple or dual representation context, a conflict of interest can arise “in a variety of situations.” (Osbourne v. Shillinger (10th Cir. 1988) 861 F.2d 612, 624.) A conflict occurs “whenever counselis so situated that the caliber of his services may be substantially diluted.” (People v. Hardy (1992) 2 Cal.4th 86, 136.) Conflicts “embraceall situations in which an attorney’s loyalty to, or efforts on behalf of, a client are threatened by his responsibilities to another client or a third person or by his own interests.”” (People v. Cox (1991) 53 Cal.3d 618, 653.) Once a conflict has been established, the question becomes one of remedy. The standard for obtaining relief under state and federal law is the same and depends on whetherthe trial court was aware of the conflict. Where the trial court continues conflicted representation over objection, reversal 1s automatic. (Holloway, supra, 435 US.at p. 488; People v. Clark (1993) 5 Cal.4th 950, 995.) Wherethere is no objection, and thetrial court is unaware of the conflict, defendant must show “that an actual conflict of interest adversely affected his lawyer’s performance.” (Clark, supra, 5 Cal.4th at pp. 995-966. See People v. Doolin (2009) 45 Cal.4th 390, 421 [holding that state and federal prejudicetest for conflict of interests are the same].) 113 Thus, there are two questions to be resolved in connection with the conflict issue here. First, was there a conflict at all? Put another way, do the facts of this case show that defense counsel’s efforts on behalf of Mr. Rices were “threatened .. . by his own interests.’” (People v. Cox, supra, 53 Cal.3d at p. 653.) If so, the second question is whetherreversal is required because it waslikely that the conflict impacted counsel’s handling of the case. 1. The county fee agreement forced counsel to decide what mitigation evidence to present while laboring undera conflict of interest. | Thefirst question to be resolved is whether an actual conflict exists. It is Mr. Rices’s burden to prove that a conflict existed. In 2003 -- six years before the penalty phasein this case -- the Supreme Court itself recognized that at the penalty phase of a capital trial, counsel is obligated “to discoverall reasonably available mitigating evidence and evidenceto rebut any aggravating evidence that [might] be introduced by the prosecutor.” (Wiggins v. Smith, supra, 539 U.S.at p. 524.) And in 2005 -- four years before the penalty phase in this case -- the Court found defense counsel ineffective for failing to properly investigate an unrelated act of violence the state was going to admit at defendant’s penalty phase. (Rompilla v. Beard (2005) 545 U.S. 374, 383-390.) 114 Here, the state gave ample notice it was going to present evidence of the August8, 2008 attack during the penalty phase. (3 CT 681.) Pursuant to both Wiggins and Rompilla, defense counsel was therefore obligated to discover any reasonably available “evidence to rebut” the state’s thesis as to the August 2008 attempted murder. In fact, however, defense counsel wasalready personally aware of mitigating evidence, and evidence which could have been usedto rebutthe state’s theory. As discussed in some detail above, in April of 2008 Mr. Rices had spoken with defense counsel and pleaded for help with a mental health issue he was having in prison. He was hearing voices whichweretelling him to “kili[] people”in jail and “slice” them. (@C RT 417.) This evidence was mitigating in a numberof ways. First, it showed something about Mr. Rices himself in that he was trying to address his mental health issues. Second, to the extent his mental health issues would have rendered him a dangerin the future, this evidence would have shown he waswilling and trying to do something aboutit to prevent acts of violence which couldresult from his disorder. (See, e.g., Davis v. Ryan (D.Ariz. 2009) 2009 WL 2515644 at * 3 [capital defendant’s attempt to seek help for mental disorder was mitigating]; United States vy. Hammer (M.D.Pa. 1998) 25 F.Supp.2d 518, 521 [same]. Compare People v. Geddes (1991) 1 Cal.App.4th 448, 457 [refusal to seek 115 help for mental disorder made defendant more dangerous].) Mr. Rices’s statements to defense counsel could plainly have been considered mitigating evidence in andof their own right. (See generally Smith v. Texas (2004) 543 U.S. 37, 44 [evidence is mitigation so long as a “fact-finder could reasonably deem”the evidenceto have mitigating value}.) Moreover, the evidence was also relevant mitigating evidence since it provided an alternate -- andfar less sinister -- explanation for the August 8, 2008 attack. As discussed above, the state argued that the attack was entirely unprovoked and showedthat Mr. Rices would be dangerousin the future. (15 RT 2325; 19 RT 2752-2753.) But evidence from defense counsel about Mr. Rices’s plea for help in dealing with the voices that were telling him to “slice” people in jail would have permitted the defense to argue thatin light of Mr. Rices request for help in April of 2008, the attack wastheresult of a battle with mentalillness. And, as also noted above, absent this evidence the defense presented evidence -- and argued -- that the attempted murder occurred because officer Clements might have dropped a foodtray. Mr. Rices recognizes that there were both pros and consto the evidence defense counsel could have presented. For purposesof the conflicts issue presentedhere, this does not matter. Once the state gave notice that the August 8 incident was going to be a part of the penalty phase, there wasa tactical decision to be madein terms of whether 116 defense counsel shouldtestify to present mitigating evidence and rebutthe state’s theory as to why the attack occurred. As such, Mr. Rices was constitutionally entitled to the assistance of conflict-free counsel in making this importanttactical decision. Here, however, defense counsel’s decision as to how to deal with the August8 incident-- that is, whether to provide his own mitigating testimony or forego presenting it and try a different response to the August 8 incident -- was made undera disabling conflict of interest. The state gave notice of its intent to use the August attack in the penalty phase in September 2008. (3 CT 678.) Understate law, if defense counsel had decided that the best approach wasfor counsel to serve as a witness in the penalty phase, ethical rules would have required him to quit as counsel. (See Rule of Professional Conduct 5-210 [prohibiting an attorney from acting as both a witness and an advocate in the sametrial]; People v. Dunkle (2005) 36 Cal.4th 861, 915 [An attorney must withdraw from representation . .. whenever he or she knows or should know heor she ought to be a material witness to the client’s case.”].) And if counsel quit, he would have had to forego $80,000 -- that part of his fee which had not yet been paid. In other words, defense counsel had to makea tactical decision as to what mitigating evidenceto present. If he decided to call himself as a mitigation witness, he would have to quit as counsel and forego $80,000. If he decided to forego presenting this 117 mitigating evidence, he could keep the $80,000 and present the “dropped food tray” explanation for the August 8, 2008 attack. Through no fault of defense counsel this was a clear conflict of interest; it is the precise situation in which “an attorney’s loyalty to, or efforts on behalf of, a client are threatened . . . by his own interests.” (People v. Cox, supra, 53 Cal.3d at p. 653.) As the Supreme Court of Massachusetts recognized more than a decade ago,“[t]he conflict lies in the fact that the client’s interest would be better served by having the attorney testify while the attorney’s interests would be better served by nottestifying.” (Commonwealth v. Patterson (Mass. 2000) 432 Mass. 767, 780.) 2. The conflict requires reversal because there were otherstrategies available to defense counsel besides the “food tray” theory, andit is reasonablylikely the conflict impacted counsel’s decision making process. The next question to be resolved is whether the actual conflict between Mr. Rices and his lawyer requires reversal. It does. As noted above, when conflicted representation continues despite a timely objection, reversal is automatic. (Holloway v. Arkansas, supra, 435 U.S.at p. 488; People v. Clark, supra, 5 Cal.4th at p. 995.) Where thetrial court is unaware of the conflict -- as where there is no objection -- the defendant must show “that an actual conflict of interest adversely affected his lawyer’s performance.” (People v. Clark, supra, 118 5 Cal.4th at pp. 995-966. See People v. Doolin, supra, 45 Cal.Ath at p. 421 [holding that state and federal prejudice test for conflict of interests are the same].) As this Court has repeatedly noted, even where a defendant must show adverseeffect “it is important to recognize that ‘adverse effect on counsel’s performance’. . . is not the same as ‘prejudice’ in the sense in which weoften use that term.” (People v. Clark, supra, 5 Cal.4th at p. 995. Accord People v. Easley (1988) 46 Cal.3d 712, 725.) In evaluating “prejudice” in connection with traditional ineffective assistance of counsel claims, the Court looks to see if there is a “reasonable probability that the result . .. would have been different.” (People v. Clark, supra, 5 Cal.4th at p. 995.) In contrast, in evaluating “adverse effect” in a conflict situation, the Court looks to see if the conflict caused counsel to “pull[] his punches.” (Ibid.) The defendant must show “someeffect on counsel’s handling of particular aspectsofthe trial is likely.” (Lockhart v. Terhune (9th Cir. 2001) 250 F.3d 1223, 1231.) A defendant may demonstrate “that defense counsel’s performance wasadversely affected by an actual conflict ofinterest if a specific and seemingly valid or genuinealternative strategy or tactic was available to defense counsel, but it was inherently in conflict with his duties to others or to his own personalinterests. [Citations omitted.] No further showing of prejudice is necessary.” (United States v. Bowie (10th Cir.1990) 892 F.2d 1494, 1500.) 119 Here, defense counsel did not object to the conflict. But the record showsthetrial court wascertainly aware of the facts on which the conflict was based. Mr. Rices himself let the trial court know whathe hadtold his lawyerin a sealed Marsden hearing long before trial. (3C RT 415-423.) And the court wascertainly awarelater that the August 8 incident was going to be part of the state’s penalty phase case. But there is no need to decide whetherthetrial court’s awareness of the basis for the conflict, and its failure to do anything aboutit, brings this case within the rule ofper se reversal. Evenif the “adverse effect”rule is applied here, reversal is required. Defense counsel had tactical choice to make here. If he listed himself as a mitigation witness -- to testify to Mr. Rices’s attempts to seek help for his mental issues and to mitigate the state’s explanation for the August 8 attack -- he would forego $80,000, since he could no longer represent Mr. Rices. And after defense counsel elected not to testify, he instead presented a very different explanation for the August 8 incident, arguing that Mr. Rices stabbedthe officer because the officer “unacceptably” dropped a food tray. This record suggests not only that because of the conflict “some effect on counsel’s handling of particular aspects ofthe trial [was] likely,” (Lockhart v. Terhune, supra, 250 F.3d at p. 1231) but that there was “a specific and seemingly valid or genuine alternativestrategy or tactic . . . available to defense counsel, but it was inherently in 120 conflict with his duties to . . . his own personal interests.” (United States v. Bowie, supra, 892 F.2d at p. 1500.) Because an adverse effect has been shown,reversal is required under the Sixth Amendment and Article 1, section 15 of the California Constitution. Cc. Because The County Fee Agreement Created A Conflict Of Interest Which Prevented Counsel From Discharging The Duties Required In A Capital Penalty Phase, Mr. Rices Was Deprived Of His Federal And State Rights To A Reliable Penalty Phase. The Supreme Court has long notedthat “death is a different kind of punishment from any other which may be imposedin this country.” (Gardner v. Florida (1977) 430 U.S. 349, 357.) Because death is such a qualitatively different punishment, the Eighth and Fourteenth Amendments require “a greater degree of reliability when the death sentence is imposed.” (Lockett v. Ohio (1978) 438 U.S. 586, 604.) For this reason, the Court has not hesitated to strike down penalty phase procedures which increase the risk that the factfinder will make an unreliable determination. (Caldwell v. Mississippi (1985) 472 U.S. 320, 328-330; Green v. Georgia (1979) 442 U.S. 95; Lockett v. Ohio, supra, 438 U.S. at pp. 605-606; Gardnerv. Florida, supra, 430 U.S.at pp. 360-362.) The Court has madeclear that defendants have “a legitimate interest in the character of the procedure which leads to the imposition of sentence evenif [they] may have norightto object to a particular result of the sentencing process.” (Gardnerv. Florida, supra, 430 U.S.at p. 358.) 121 Given the fundamental role played by defense counsel in ensuring a reliable result, the Sixth Amendmentright to counselis not satisfied by the mere presence of counsel, but by the presence of counsel “whoplays the role necessary to ensure that the trial is fair.” (Strickland v. Washington (1984) 466 U.S. 668, 685.) Where a defendantis sentenced to die in a proceeding where he wasrepresented by an attorney who was making importanttactical choices as to mitigating evidence while suffering from a conflict of interest, the reliability requirements of the Eighth Amendmentare uniquely threatened. This is especially true here where -- as discussed more fully below -- the trial court failed to conduct an inquiry targeted to determine whether counsel could or would effectively present mitigation. As the Supreme Court noted in Holloway,the risk in allowing counsel to go forwardin this situation was whatthe conflict prevented him from doing: “Theevil - it bears repeating - is in what the advocate finds himself compelled to refrain from doing[.] . . . It may be possible in some cases to identify from the record the prejudice resulting from an attorney’s failure to undertake certain trial tasks, but even with a record .. . it would be difficult to judge intelligently the impactof a conflict on the attorney’s representation of a client.” (Holloway, 435 USS. at pp. 490-491.) Because any attempt to precisely gauge the impact of defense counsel’s conflict on Mr. Rices’s representation during the penalty trial would require “unguided speculation” 122 (Holloway, supra, 435 U.S.at p. 491), the death verdict in this case cannotsatisfy the reliability requirements imposed by the Eighth Amendment. The sentence of death must therefore be reversed for this reason as well. D. The Case Must Be Remanded Because Although The Trial Court Should Have Been Aware Of The Conflict, The Court Failed To Conduct Any Inquiry At All. Whena trial court knows,or reasonably should know,of the possibility of a conflict of interest on the part of defense counsel,it is required to inquire into the matter. (Woodv. Georgia, supra, 450 U.S. at p. 272.) It is immaterial how the court learns of the possibility of the conflict, or whether the issue is raised by the prosecution or the defense; in either case, thetrial court is obligated (1) to conduct an adequate inquiry and (2) to act in response to whatit learns. (Jd. at pp. 272-273.) The court’s obligation to inquire increases whereserious crimes are charged: “In dischargingits duty, [a trial court] must act ‘with a caution increasing in degree as the offenses dealt with increase in gravity.’” (People v. Bonin, supra, 47 Cal.3d at p. 837.) The purposeofthe trial court’s inquiry is to “ascertain whetherthe risk [of conflicted counsel is] too remote to warrant [new] counsel.” (Holloway v. Arkansas, supra, 435 U.S.at p. 484.) Accordingly, the inquiry must be both “searching” and 123 “targetedat the conflict issue.” (Selsor v. Kaiser (10th Cir. 1996) 81 F.3d 1492, 1501.) Whena trial court is aware ofa potential conflict of interest, but fails to make an appropriate inquiry, the proper remedy is to remandthe case to the trial court for a proper hearing. (Wood v. Georgia, supra, 450 U.S.at pp. at 272-274.)"” In this case, the trial court was aware that while in county jail in April of 2008 Mr. Rices had told defense counsel about (1) hearing voicestelling him to kill people in jail and (2) wanting to get help for this obvious mental health issue. (3C RT 415-423.) The sametrial judge was also aware that Mr. Rices was charged with stabbing a jail guard some monthslater -- it was the same judge whoarraigned Mr. Rices on this charge. (3 RT 444-448.) Thestate filed a notice of aggravating evidence with the court which identified the August 8 attack as evidence it would use in the penalty phase. (3 CT 681.) Andthe prosecutor wasclear in his opening statementthat this attack was part and parcel of the penalty phase. (9 RT 1337-1338.) Onthese facts, the trial court knew or reasonably should have knownof the potential conflict. In this situation, even if the recorditself does not establish an actual conflict which requires reversal, at a minimum the trial court was required to conduct an 1 Of course, as the discussion in Argument VH-B above makesclear,if the record itself reveals a conflict -- along with an adverse impact-- then reversal is required regardless of the trial court’s failure to conduct an inquiry. 124 adequate inquiry. (Woods v. Georgia, supra, 450 U.S. at pp. 272-273; People v. Bonin, supra, 47 Cal.3d at p. 836.) The failure to do so requires a remand. E. Because Defense Counsel Failed To Move To Withdraw From Representation, Reversal Is Required. Even putting aside the conflict of interest which arises under the state and federal constitutions, and which requires reversal for the reasons set forth above, there is a separate state-law reason reversal is required in this case. Understate law, defense. counsel was obligated to move to withdraw from this case. His failure to do so requires reversal. California Rule of Professional Conduct 5-210 states that with certain exceptions not applicable here “[a] membershall not act as an advocate before a jury which will hear testimony from the member....” This ethical rule applies wheneverthe attorney “knows or should know that he or she ought to be called as a witnessin litigation in which there is a jury.” (Rule 5-210, Discussion.) As this Court has concluded, “[a]n attorney must withdraw from representation, absent the client’s informed written consent, whenever he or she knowsor should know heorshe oughtto be a material witness in the client’s cause.” (People v. Dunkle (2005) 36 Cal.4th 861, 915.) 125 In assessing whetheran attorney “knowsor should know”he should be called as a witness, a reviewing court must “evaluat{e] all pertinent factors ....” (People v. Dunkle, supra, 36 Cal.4th at p. 915.) These include “the significance of the matters to which the attorney mighttestify, the weight the testimony might have in resolving such matters, and the availability of other witnesses or documentary evidence by which these matters may be independently established.” ([bid.) An attorney should “resolve any doubt in favor of preserving the integrity of his testimony and against his continued participationastrial counsel.” (Comden v. Superior Court (1978) 20 Cal.3d 906, 915. Accord Peoplev. Dunkle, supra, 36 Cal.4th at p. 915.) Here, application of the factors identified in Dunkle compels a conclusion that defense counsel should have known he should have been called as a witness. With respect to the “significance of the matters to which the attorney mighttestify,” since Mr. Rices pled guilty, the only issue for the jury was whether to impose life without parole or death. The prosecutor made future dangerousness-- and particularly, future dangerousnessto prison staff -- an important part of his argument that death was appropriate. (19 RT 2752-2753.) In light of the record as it went to the jury, the prosecutor placed substantial reliance on the August 8 attack. (19 RT 2751-2752.) He relied on this attack in his rebuttal argument as well. (19 RT 2781.) The prosecutor was not subtle, nor did he haveto be: on the record before the jury the August 8 attack was 126 “without any provocation, without any reason whatsoever ....” (19 RT 2752.) Had defense counseltestified to Mr. Rices’s statements of April 2008, the jury would have been presented with a dramatically different view of the Augustattack. Defense counsel’s testimony would have shown that months before the stabbing of officer Clements, Mr. Rices told counsel he was hearing voicestelling him to do just that -- “slice” people in jail. (@C RT 417.) Mr. Rices asked counsel for help in dealing with whathe himself recognized was a mental health issue. (3C RT 417.) This testimony presented the potential for a very different explanation for the August attack. Given the recognized importance of rebutting aggravating evidence in general, and the specific reliance the prosecutor here placed on the unprovokedattack in making his future dangerousness argument, defense counsel’s testimony would plainly have been on a significant matter. With respect to the “weight the testimony might have,” given the circumstances of the conversation between Mr. Rices and counsel,it is likely the jury would have accorded substantial weight to the testimony. Had Mr. Rices sought help from the prison staff directly, the state might be able to suggest that he was simply trying to create a mental health issue where none existed. But Mr. Rices did no such thing; he specifically did not talk to prison staff because he thought they wouldtestify against him if he sought help 127 from them. (3C RT 417.) Instead, he spoke to his lawyer, presumably in confidence, and asked for help. (3C RT 417.) The circumstances around the conversation therefore undercut any suggestion that Mr. Rices was anything but sincere. Finally, the Court must examine “the availability of other witnessesor documentary evidence by which these matters may be independently established.” Here, “defense counsel wasthe only witness to Mr. Rices’s request for help. There was neither witness testimony nor documentary evidence which could have substituted for defense counsel’s own testimony as to what happened. The facts of this case stand in sharp contrast to those in People v. Dunkle, supra, where the Courtheld that counsel did not have a duty to withdraw. There, defendant was charged with capital murder. At a separate competencytrial, defense counsel testified about his observations of defendant. Defendant was eventually found competent; at the subsequentpenalty phase, the defense evidence focused primarily on defendant’s mental state. Defense counsel wasnotcalled as a witness at the penalty phase. The defense called a psychiatrist “who reviewed voluminousreports and records and recounted at length his own observations of defendant during the course of multiple interviews.” (36 Cal.4th at p. 916.) On this record -- where the defense wasable to presentto the jury testimony from someoneelse who had observed defendant-- the Court found that defense 128 counsel had no obligation to withdraw. (36 Cal.4th at p. 916.) The court noted the undesirability of a rule which would require counsel to withdraw after the competency phase, causing delays in trial. ([bid.) Unlike Dunkle, here the defense wasentirely unable to present testimony from other witnesses to offer a possible alternative explanation for the August 8 attack. To the contrary, as discussed above, absent any such evidence the defense substituted the “food tray” theory of the attack which the prosecutor quite properly ridiculed in his rebuttal. (19 RT 2781.) And unlike Dunkle, the motion to withdraw here would have caused far less of a delayin trial; in contrast to Dunkle (where counsel would have had to withdraw after the competency phase butbefore the penalty trial), the state gave notice that it would use the August 8 attack in aggravation in September 2008 (3 CT 681) buttrial did not start until nine monthslater in June 2009. (5 CT 1076.) Given that Mr. Rices had already pled guilty, there might have been no delayat all had a prompt motion to withdraw beenfiled. In short, applying the Dunkle factors here, counsel should have knownhe ought to be a witness in the penalty phase. This is especially true if indeed an attorney should “resolve any doubtin favor of preserving the integrity of his testimony and against his continuedparticipation as trial counsel,” a motion to withdraw should have beenfiled in this case. (See People v. Dunkle, supra, 36 Cal.4th at p. 915; Comden v. Superior Court, 129 supra, 20 Cal.3d at p. 915.) The failure to make such a motion here resulted in the absenceof important mitigating evidence during the penalty phase. Reversal is required. 130 VII. ALTHOUGH THE TRIAL COURT PROPERLY APPOINTED “INDEPENDENT COUNSEL” TO ADVISE MR: RICESWHETHER HE SHOULD GO TO TRIAL WITH A LAWYER WHOTHE ASSIGNING AGENCY BELIEVED WAS NOT QUALIFIED TO HANDLEA CAPITAL CASE, THE COURT ERREDIN FAILING TO HOLD A HEARING AFTER LEARNING THAT THE LAWYERIT HAD APPOINTED MAY HAVE SUFFERED FROM A DISABLING CONFLICT OF INTEREST. A. The Relevant Facts. As noted above, Mr. Rices was charged with two murders on November29, 2006. (1 CT 1.) Although he wasinitially represented by the San Diego County Public Defender, in March 2007 the Public Defender declared a conflict and the trial court appointed counsel through the PCC panel. (2 RT 3, 45-47.) At this point, the state had not yet declared it would be seeking death. In November 2007 the state advised defense counselit would be seeking the death penalty. (3 RT 312.) Shortly thereafter, PCC sought a hearing with the trial court, defendant and defense counsel. (3 RT 326.) The hearing was held on December 13, 2007 and ordered sealed. At the hearing, PCC lawyers advised the Court that defense counsel had been selected for this case “before the district attorney decided to seek death ....” (ART 131 331.)'8 Under PCC’s view, although defense counsel was qualified to handle the case when it was a murder prosecution, he was not qualified to serve asfirst chair in a capital case. (3A RT 329-330.) He was, however, qualified to serve as second chair. (3A RT 330.) PCC suggested that the court appoint a lawyer to advise Mr. Rices “whathis options are and whatall of this means.” (3A RT 332.) For his part, defense counsel disagreed that he was not qualified. He told the court that he had advised PCC he “had done two[capital trials] before.” (3A RT 3372.) Counsel had also arranged for a lawyer he had worked with previously -- William Wolfe- - to serve as second chair. (3A RT 333.) Counsel believed he was qualified under both the ABA Guidelines and California Rule of Court 4.117 and explained his view that PCC “for whatever reason I’m not privy to has decided they are going to in place of the A.B.A. guidelines and California Rules of Court .. . seek to replace me as counsel.” (3A RT 334.) He addedthat he would not serve as second chair because it would create a “conflict in this defense team.” (3A RT 334.) The PCCrepresentatives madeclear they had not considered the A.B.A. Guidelinesat all. (3A RT 335.) In fact, “it had nothing to do one wayor the other with 18 The sealed proceedings of December 13, 2007 are covered by Rule 8.47, subdivision (b)(1)(B). Thus, the state may seek a copy of this transcript pursuant to Rule 8.47, subdivision (b)(2). 132 us for A.B.A. guidelines.” (3A RT 336.) Counsel was not qualified because “unless and until you have second chaired a capital case, we do not approve somebodyto befirst chair. Period.” (3A RT 336.) Defense counsel explained the two capital trials he had handled. In one he had been advisory counsel to a pro per defendant who turned to counsel andsaid “try the case.” (3A RT 336.) Counsel did so. (3A RT 336.) In the second case, counsel was standby counselto another pro per defendant. (3A RT 337.) Counseldid not explain if he handled any aspectof the trial in the second case. (3A RT 337.) Counsel explained that when he offered his capital experience to PCC,“that didn’t seem to sway them.” (3A RT 337.) Healso stated he had more than 30 murdertrials. (3A RT 337.) At this point, Mr. Rices advised the court that he had developeda relationship with defense counsel and both he and his family trusted him. (3A RT 341.) Hefelt like he would be “losing ground”if he got new counsel. (3A RT 342.) The court decided to appoint a lawyer to advise Mr. Rices. (3A RT 344.) The purpose was“to get you advised of yourrights.” (3A RT 346.) The court stated thatit wantedto pick “an independent counsel” -- one who wasnot on the PCC board. GA RT 349.) PCC suggested that the court appoint “someone whois a capital case qualified 133 attorney to advise Mr. Rices” and suggested two possibilities including Don Levine and Allen Bloom. (3A RT 350-351.) Whenthe court indicatedit did not “know the attorneys in this county whoare capitally qualified” defense counsel -- who had been working on this case for more than nine months -- advised the court that “Don Levineis fine.” (3A RT 351.) The court took the suggestion and appointed Mr. Levine to counsel Mr. Rices. (GA RT 352.) As discussed below, defense counsel’s advice to the court would turn out to create far more problems than it solved. The parties reconvened on January 11, 2008. (3B RT 358.)'° Mr. Levine wasin open court, as was the prosecutor. (3 RT 355.) Before being excused from the sealed proceedings, the prosecutor noted that she did not “know what [Mr. Levine’s] role is in this case” but had “just learned that it looks like he’s going to be advising or speaking with Mr. Rices in some capacity.” (3 RT 356.) She advised the court that Mr. Levine was representing a witness who had “come forward to provide testimony against Mr. Rices.” (3 RT 357.) The prosecutor madeclear her concerm: 19 The sealed proceedings of January 11, 2008 are also covered by Rule 8.47, subdivision (b)(1)(B). 134 “Given that information, I don’t know whatthe court’s position is on having Mr. Levine being involved in possibly defending Mr. Rices.” (3 RT 357.) The sealed portion of the hearing then began. The court did not ask Mr. Levine anything about what the prosecutor had said, nor did Mr. Levine offer a comment. Instead, Mr. Levine simply informedthe court that he had spoken to Mr. Rices and advised him that defense counsel was“technically not . . . qualified.” (3B RT 359.) He reiterated that he “discussed with [Mr. Rices] the question whether [defense counsel] qualified, technically, according to the PCC guidelines... .” (3B RT 360.) According to Mr. Levine, “Mr. Rices felt that [defense counsel] was sufficiently qualified to handle his case....” (3B RT 360.) The court then turned to Mr. Rices. For his part, Mr. Rices did not ignore the prosecutor’s expressed concern. He picked up right where the prosecutor hadleft off and asked the court why it appointed Mr. Levine, who represented a witness against Mr. Rices. The court madeclear it had been unaware of this obvious conflict: “The Court: Mr. Rices, did you wish to state anything, sir? “The Defendant: Why’d ya’ll send somebodyto methat represented a confidential informant or a cooperating witness? “The Court: Sir, I don’t know what, if anything, Mr. Levine’s involvement 135 with any witness or potential witness in this case has been. I selected Mr. Levine because hehad not represented you. As far as I knew,there was no conflict.” (3B RT 362.) The court asked Mr. Rices if he wanted to consult with another lawyer andstated he would “be happy to appoint another lawyerto talk to you aboutthis issue... .” (GB RT 362.) Mr. Rices declined, but again madeclear his concern that the “independent lawyer”the court had picked had a pre-existing interest in the case: “The Defendant: No. I don’t believe I would like that. I just don’t understand how ya’ll didn’t research good enoughto find out whether he represents somebodythat’s cooperating against me.” (3B RT 362.) Fairly read, the record suggests that trial court became a bit defensive aboutnot knowing Mr. Levine’s connection to the case, explaining that “I don’t have a police report.” (3B RT 362.) The court added that “I don’t know everything about this case. In fact, I know very little.” (3B RT 362.) Whenthe court stated that it had appointed Mr. Levine “based on the representations made to me, that Mr. Levine had not handled this matter as far as you were concerned,” Mr. Rices repeated for a third time his concern about having been given “independent counsel” who wasrepresenting a witness against him: 136 “The Defendant: Ya’ll didn’t check to see if he had represented someone who wascooperating?” The court responded, providing the somewhat perplexing explanation that because she was the judge who was making rulingsin the case, she was not permitted to know if the “independentcounsel” she had appointed to advise Mr. Rices had a disabling conflict of interest: “The Court: I’m not permitted to know any ofthat sir, because I’m the judge who is making rulings on the case.” (3B RT 362-363.) The court again offered to “appoint some other attorney to talk to you.” (3B RT 363.) Mr. Rices declined the offer and told the court that he wished to keep defense counsel. (3B RT 363.) Throughoutthis entire exchange, both defense counsel and Mr. Levine remained silent. Neither advised the court whether Mr. Rices’s allegation -- that Mr. Levine “represented a confidential informant or a cooperating witness”-- was true. (3B RT 362- 363.) Defense counsel did not discuss with the court whether he knewofthat potential conflict when he recommended Mr. Levine at the December 13 hearing. Mr. Levine did not confirm or deny the allegation at all. And despite the fact that both the prosecutor and 137 Mr. Rices hadalerted the trial court to what the trial court itself recognized was a potential conflict of interest, the court made no inquiry of anyone. The court asked no questions of defense counsel. The court asked no questions of Mr. Levine. And the only question it asked of Mr. Rices was whether he wantedthe court to appoint yet another lawyerto talk to him. And at the end of this hearing, the court denied the motion by PCC to relieve defense counsel. (3B RT 366.) Less than nine monthslater, defense counsel had Mr. Rices plead guilty to the capital charges in exchangefor nothing from the state. (3 RT 455-470.) That same day defense counsel had Mr. Ricesplead guilty to the August 8 assault on officer Clements. (3 RT 492-495.) At the ensuing penalty phase, defense counsel elected not to present any mental health evidence to explain this August 8 incident, instead arguing that the attack on officer Clements was caused because Clements dropped a food tray. (15 RT 2327- 2328; 19 RT 2765.) Moreover, although the co-defendant admitted to police that the robbery washis idea, defense counsel elected not to introduce that evidenceto the jury deciding Mr. Rices’s fate. (12 RT 1778, 1832-1833.) As more fully discussed below, the only reason the court wasable to say at the January 11 hearing that “[a]s far as I knew, there was no conflict’ (3B RT 362) was because it madenoeffort at all to determine if there was a conflict. On this record, where 138 the prosecutor raised the conflict issue prior to the hearing, where Mr. Rices raised the issue three times during the hearing and wherethe court itself recognized the possibility of a conflict, the court was at least required to make an inquiry. B. Because The Trial Court Was On Notice Of The Potential Conflict, It Was Required To Hold A Hearing. Asdiscussed in some detail above, when trial court knows, or reasonably should know,of the possibility of a conflict ofinterest on the part of defense counsel,it is required to inquire into the matter. (Wood v. Georgia, supra, 450 U.S.at p. 272.) The more serious the charged crime, the morealert a trial court must be to potential conflicts. (People v. Bonin, supra, 47 Cal.3d at p. 837.) When the court does make an inquiry,it must make a sufficient inquiry directed at the conflict issue to determine whether new counselis warranted. (Holloway v. Arkansas, supra, 435 U.S.at p. 484; Selsor v. Kaiser, supra, 81 F.3d at p. 1501.) When trial court is aware of a potential conflict, but fails to make an appropriate inquiry, the case must be remandedfor a proper inquiry. (Wocdv. Georgia, supra, 450 US.at pp. at 272-274.) In this case, although there was some dispute on the matter, PCC advised the court that in its view defense counsel was not qualifiedto first chair a capital trial. (3A RT 329-331, 336.) Because Mr. Rices himself expressed an interest in keeping counsel, the 139 trial court properly ruled that the best step would be to appoint counsel to advise Mr. Rices of the pros and cons of keeping current counsel. Thetrial court advised Mr. Rices it was going to appoint “independent counsel”to advise him ofhis rights. (3A RT 346.) Based on the suggestion of both PCC and defense counsel, the court appointed Don Levine. (3A RT 350-351.) Atthat point in the proceedingsit is impossibleto criticize the trial judge. She was doing everything possible to make sure that Mr. Rices’s right to counsel was honored. The problem occurred at the January 2008 hearing when the court heard from both the prosecutor and Mr. Rices that Mr. Levine -- the “independent counsel” she had appointed to advise Mr. Rices if he should go forward with unqualified counsel -- may himself have been operating under a conflict because he “represented a confidential informantor a cooperating witness.” (3B RT 362.) The prosecutor broughtthis to the court’s attention prior to the January 11 hearing, Mr. Ricesreiterated the point three times during the hearing, and the trial court made clear (1) she knew nothing aboutit and (2)it raised a potential conflict. (3 RT 356-357; 3B RT 362-363.) On these facts, the trial court knew or reasonably should have knownof the potential conflict. In this situation, the trial court was required to at least conduct an adequate inquiry. (Woods v. Georgia, supra, 450 U.S. at pp. 272-273; People v. Bonin, 140 supra, 47 Cal.3d at p. 836.) Yet the court made no inquiry at all. The court did not ask Mr. Levine anything at all about what he knewofthe potential conflict. It did not find out if he represented a witness, if the witness was a penalty phase or guilt phase witness and if so, who the witness was, what information the witness provided and what arrangements the witness had made if any with the state. The court did not ask defense counsel whether he was aware Mr. Levine represented a witness or whether Mr. Levine’s advice to defendant would impact how defense counsel would cross-examine Mr. Levine’s client. None of this information is in the record precisely because the trial court failed to hold a hearing. That failure was error under both the state and federal constitutions. C. Mr. Rices Did Not Waive His Right To Conflict-Free Counsel. After the court was made awareofthe potential conflict the trial court twice stated it would “be happy”to appoint a different lawyer to speak with Mr. Rices about whether he should continue with unqualified counsel. (3B RT 362, 363.) On both occasions Mr. Rices declined the offer. (3B RT 362, 363.) Respondent may arguethat (1) these exchanges constitute some kind of waiver of the right to conflict free counsel for purposes of receiving advice about the decision to proceedto trial with then-appointed counseland (2) as a consequenceof the waiver, there is no need to remandfora hearing 141 under Woods v. Georgia. It is, of course, true that a defendant may waivethe right to conflict-free counsel. But such a waiver must be unambiguous,“withoutstrings,” and made “with sufficient awareness of the relevant circumstances andlikely consequences.” (People v. Bonin, supra, 47 Cal.3d at p. 837,citing People v. Mroczko (1983) 35 Cal.3d 86, 110; Brady v. United States (1970) 397 U.S. 742, 748; see also People v. McDermott (2002) 28 Cal.4th 946, 990.) While the trial court need not undertake any “particular form of inquiry” before it accepts such a waiver, “at a minimum, the trial court mustassure itself that (1) the defendant has discussed the potential drawbacksof [potentially conflicted] representation with his attorney, or if he wishes, outside counsel, (2) that he has been made aware of the dangers and possible consequences of [such] representation in his case, (3) that he knowsofhis right to conflict-free representation, and (4) that he voluntarily wishes to waive that right.” (People v. Mroczko, supra, 35 Cal.3d at p. 110; see also Glasser v. United States (1942) 315 U.S. 60, 71.) “This inquiry is to be made directly of defendants to assure that they have been adequately appraised of the nature and consequencesof any conflicts faced by counsel.” (People v. Mroczko, supra, 35 Cal.3d at p. 112.) A defendant’s statement he would like to continue with current counsel is not a sufficient waiver whenit is not accompanied by 142 on-the-record adviceas to the dangers of continuing with the conflicted representation. (See People vy. Bonin, supra, 47 Cal.3dat pp. 840-841 [defendant said he wanted attorneys to represent him attrial; held, waiver of right to conflict-free counsel invalid because “defendant did not even purport to make a personal, on-the-record waiver. . [and becausehis statement in favor of the attorneys] was not made in light of a constitutionally adequate, on-the-record advisementof the possible dangers and consequencesofconflicted representation.”]; People v. Easley, supra, 46 Cal.3dat p. 730 [no waiverofright to conflict-free counsel where “defendant was never asked for a waiver. . . [nor was he} ever advised ofthe full range of dangers and possible consequencesofthe conflicted representation in his case”’].) A reviewing court indulges “every reasonable presumption against the waiver of unimpaired assistance of counsel.” (People v. Bonin, supra, 47 Cal.3d at p. 840,citing People v. Mroczko, supra, 35 Cal.3d at p. 110, Glasser v. United States, supra, 315 U.S. at p. 70.) In this case, the record does not comeclose to rebutting the presumption. Here, Mr. Rices wasentitled to a conflict-free lawyer advising him about whether to continue with current counsel. At the January 11, 2008 hearing Mr. Rices “did not even purport to make a personal, on-the-record waiverof his constitutional right to the assistance of conflict-free counsel.” (People v. Bonin, supra, 47 Cal.3d at p. 840.) “It is 143 true that [appellant] stated he [did not want a new lawyer appointed to advise him}. His statement, however, is without significance here since it was not madein light of a constitutionally adequate on-the-record advisementof the possible dangers and consequencesof conflicted representation.” (Id. at p. 841.) Because the court never inquired into whether Mr. Levine actually had a conflict, it never informed Mr. Rices of his right to conflict-free counsel, it never asked him for a waiver, and it never advised him of the dangers and possible consequencesof relying on conflicted advice from Mr. Levine. (See, e.g., People v. Easley, supra, 46 Cal.3d at p. 730; People v. McDermott, supra, 28 Cal.4th at p. 990.) Indeed, precisely because the court had madeno inquiry,it wasin no positionatall to understandthe nature of the conflict or provide any advice aboutthat conflict to Mr. Rices. Mr. Rices did not waivehis right to conflict free counsel for purposes of receiving advice about the decision to proceed to trial with appointed counsel. D. A RemandIs Required To Determine Whether Mr. Levine WasSuffering From A Conflict OfInterest. The typical situation where trial judge is awareof, but fails to inquire into, a potential conflict involves a conflict involving defendant’s trial lawyer. (See, e.g., Woods v. Georgia, supra, 450 U.S. 261.) In such a situation the proper remedyis to remand the case backto the trial court for an inquiry into the conflict. If this hearing reveals a 144 disabling conflict of interest, the lower court can simply reverse the conviction. (d.at pp. 272-274 [wheretrial court did not hold a hearing to inquire into conflicted representation at defendant’s probation revocation hearing, Supreme Court remands and notes that if the hearing showsa “disqualifying conflict of interest” then the lower court must hold a new revocation hearing with conflict free counsel].) Mr. Rices recognizes that as to Mr. Levine’s conflict, the issue is slightly different. After all, Mr. Levine did not represent Mr. Ricesattrial -- he represented him only in connection with advice as to whether to proceed with counsel who PCC believed was not qualified. But the Woods approach should still be followed. The case should be remandedfor a hearing to determine if Mr. Levine suffered from a disqualifying conflict of interest. If so, then different counsel must be appointed to advise Mr. Rices whetherit wasin his interest to proceed with unqualified counsel. Ofcourse, there is an immediate problem. Giventhattrial has already occurred, any advice now given to Mr. Rices about defense counsel (and any decision Mr. Rices now indicates he would have made based on that advice) may be tainted by the knowledgethat proceeding with defense counsel resulted in a death verdict. But this is a very similar problem to that faced by courtsall the time addressing ineffective assistance of counselin the guilty plea context. Specifically, defendants whoreject a plea offer, go 145 to trial, get convicted and receive a sentence longer than the originally offered plea sometimesclaim their lawyer provided ineffective assistance in connection with the rejected plea offer. In that situation courts are charged with making a retrospective determination based on the objective evidence as to whether the defendant would have accepted the plea had he received proper advice. (See In re Alvernaz (1992) 2 Cal.4th 924, 938.) That is essentially the same inquiry which must be madehere; assuming the court on remandfinds a disabling conflict of interest for Mr. Levine, the question is whether Mr. Rices would have proceeded with defense counsel had he received genuinely independent advice on the subject. The case must be remanded sothat these inquiries can be made. 146 IX. THE TRIAL COURT ERRED IN DENYING MR.RICES’S MOTION TO REPLACE COUNSEL AFTER LEARNING THAT COUNSEL HAD,IN APPARENT COMPLIANCE WITH RULE OF PROFESSIONAL CONDUCT3- 100(B), REPORTED MR. RICES TO JAIL AUTHORITIES. In April 2008 Mr. Rices brought a Mardsen motionto replace counsel. (3 RT 411.) Thetrial court held an in-camera Marsden hearing to hear Mr. Rices’s concerns. (3 RT 415.) As discussed above, Mr.Ricestold the trial court heneeded new counsel because he no longer could “trust” or “work with” defense counsel. (3C RT 416, 422.) Mr. Rices had been hearing voicestelling him to “kill people” in jail and “slice people’s throats open.” (3C RT 417.) He wasafraid to tell jail personnel of these voices because they would “tell the D.A.” (C RT 417.) So Mr. Rices told defense counsel. (3C RT 416, 417.) Defense counsel confirmed that Mr. Rices “told me basically what he told the court.” (3C RT 420.) Asalso discussed above, defense counsel wasin a difficult position. He had been given information byhis client which he could reasonably believe could lead to significant harm, either death or great bodily injury of people in prison. In this situation, California Rule of Professional Conduct 3-100(B) permits counsel to reveal otherwise confidential information in an effort to prevent such harm. Counsel did so and contacted 147 the jail. In turn,jail deputies advised Mr. Rices that his lawyer had contacted the jail; Mr. Rices told the court that deputies told him that defense counsel called the jail and “told the watch commanderthat [Mr. Rices] feel[s] like being violent to other people.” (3C RT 418.) Believingthat the attorney-client privilege had been violated, Mr. Ricestold the court he no longer trusted his lawyer. (3C RT 416, 418, 422.) For his part, defense counsel confirmedthat he did indeed call the jail, explaining that he told officers that Mr. Rices had the potential of “acting out.” (3C RT 420.) Thetrial court denied Mr.Rices’s Marsden motion. (3C RT 421.) This was error. As discussed below, when a defense lawyer confronts a situation like that presented here -- and he receives information from a client which he reasonably believes suggestthat the client may be about to commit a criminal act of violence involving death or bodily harm -- the lawyer has a choice to make. Under California’s ethical rules, the lawyer mayeither (1) remainsilent or (2) reveal the informationin order to prevent the violent act. California’s ethical rules are equally clear, however, thatif the lawyerelects to reveal information in order to prevent the violentact, the attorney-client relationship must be terminated. Because the trial court here simply ignored this aspectof California law in ruling on Mr. Rices’s Marsden motion, reversal is required. When a criminal defendant seeks to replace his appointed attorney,the trial court 148 is under an obligation to inquire into and evaluate the specifics of the defendant's complaints. (People v. Marsden (1970) 2 Cal.3d 118 , 125-126; see also People v. Smith (1993) 6 Cal.4th 684, 690.) Where the record “clearly shows”that the relationship between the defendant and counselhas deteriorated to such an extent that continued representation is untenable, new counsel should be appointed. (See People v. Michaels (2002) 28 Cal.4th 486, 523.) Of course, in making this assessmenta trial court is not required to simply accept at face value a defendant’s claim that he no longertrusts his lawyer. (Id. at p. 523; People v. Crandell (1988) 46 Cal.3d 833, 860; People v. Berryman (1993) 6 Cal.4th 1048, 1070.) Here, when Mr. Rices requested new counsel pursuant to Marsdenthetrial court properly held a hearing. Mr. Rices explained that the reason he could no longer “work with” or “trust” defense counsel was that counsel had contacted the jail and conveyed the substance of conversations Mr. Rices’s believed wereprivileged. (3C RT 416-418.) As discussed above, given that the statements Mr. Rices made to counsel may have involved a danger of violence, defense counsel may certainly have had a good faith belief that these statements were neither privileged nor confidential. (See Evidence Code section 956.5 [privilege]; Rule of Professional Conduct 3-110(B) [confidentiality].) Defense counselis certainly not to be faulted for this belief. But the Rules of 149 Professional Conductare quite clear on this point; once counsel decidesthat he is going to reveal client communications in an attempt to prevent death or great bodily injury, the attorney-client relationship must end: “When a memberhas revealed confidential information under paragraph [3- 100] B,in all but extraordinary cases the relationship between member and client will have deteriorated so as to make the member’s representation of the client impossible. Therefore, the memberis required to seek to withdrawfrom the representation . . . unless the memberis able to obtain the client’s informed consent to the member’s continued representation.” (Rules of Professional Conduct, Rule 3-100, Comment 11, emphasis added.) Of course, the Rules of Professional Conductare “adopted by the Board of Govemorsof the State bar . . . and approved by the Supreme Court... .” (Rule of Professional Conduct 1-100(A).) As such,these rules are “binding upon all members of the State Bar.” (Rule of Professional Conduct 1-100(A).) And this Court, as well as courts throughoutthe state, rely on the comments section of the rules in applying the rule itself. (See, e.g., Santa Clara County v. Woodside (1994) 7 Cal.4th 525, 548; Howardv. Babcock (1993) 6 Cal.4th 409, 429; Rand v. Board ofPsychiatry (2012) 206 Cal.App.4th 565, 577-578; Gilbert v. National Corporationfor Housing Partnerships (1999) 71 Cal.App.4th 1240, 1255.) Here, defense counsel did not make the requisite “motion to withdraw”that he was 150 required to make. He did not “obtain [Mr. Rices’s] informed consent to the member’s continuedrepresentation.” Instead, when Mr. Rices himself made the requisite motion to end counsel’s representation, neither the court nor counsel took any heedat all of Rule 3- 100. To avoid confusion, Mr. Rices will makeclear his argument. His argumenthere is not that Rule 3-100 provides an independentbasis for his Marsden motion. To the contrary, the basis of his argumenthere is a basis long acknowledged: new counsel must be appointed where the record showsthat the attorney-client relationship has irremediably broken down. Rule 3-100 and its comments simply recognize the commonsense proposition that where a defense lawyer makesthe substantial decision to reveal client communicationsto a third party “the relationship between [counsel] and client will have deteriorated” so that continued representation is simply not feasible. In reaching a contrary conclusion herethetrial court ignored this aspect of Rule 3-100 entirely and, as a consequence, necessarily abusedits discretion. The Marsden motion should have been granted andreversal is required. Moreover,thetrial court’s refusal to appoint new counsel forced Mr. Ricesto trial with a lawyer with whom his relationship had obviously deteriorated and violated his federal and state constitutional rights to the effective assistance of counsel, as well as a fair and reliable penalty phase guaranteed by the Fifth, Sixth, Eighth and Fourteenth Amendments. 151 X. DEFENSE COUNSEL RENDERED INEFFECTIVE ASSISTANCEIN FAILING TO OBJECT WHENMR.RICES’S JURY WAS CALLED BACK INTO SESSION TO HEAR CO-DEFENDANT’S LAWYER PRESENT EVIDENCEIN AGGRAVATION. A. The Relevant Facts. Jean Pierre Rices and Anthony Miller were jointly charged with two counts of murder. (1 CT 69-70.) The state sought death for Mr. Rices andlife without parole for Mr. Miller. (1 CT 78-79.) Because Mr. Miller had madepre-trial statements to police which inculpated both defendants, Mr. Rices moved for a severanceor, in the alternative, for the court to seat two juries. (3 CT 478-490.) The state conceded that two juries were appropriate. (3 CT 607-614.) That is the approach the court took, empaneling twojuries. Ultimately, Mr. Rices pled guilty to special circumstance murder. (4 CT 716-718.) Thus, the two-jury procedure would workasfollows. Mr. Miller’s jury would hear the guilt phase against Mr. Miller. Mr. Rices’ jury would be present for what wasreferred to as the “overlapping” evidence, and it would 152 thereby learn the circumstancesof the crime. Mr. Rices’s jury would not be present for the Miller defense evidence. After the guilt trial of Miller was completed, Mr. Rices’s jury would return to hear (1) aggravating evidence offered by the state and (2) mitigating evidence offered by the defense. (See 4 RT 710-711.) And this is precisely whatthe trial court explained to the jury during voir dire. (S RT 795.) Finally, this point was again madeclear by the calendar the court provided to the jurors, which provided for both juries to be present for the overlapping evidence, followed by five days of testimony to be heard only by the Miller jury. (5 CT 1020.) To a point, this is exactly what happened. On June 8, 2009, the prosecutor made opening statements to Mr. Rices’s jury. (5 CT 1056; 9 RT 1331.) On June 9, 2009, the presentation of the state’s case began before both juries. (5 CT 1077; 10 RT 1359.) The state presented evidence from nine witnessesto both juries. (5 CT 1077-1081; 10 RT 1367-1546.) The next day -- June 10, 2009 -- the state presented evidence from two additional witnesses to both juries. (5 CT 1086-1087; 11 RT 1583-1650.) The prosecutor advised the court that he would be donewith thejointtrial that day and “the Rices jury would be done until we -- unless Mr. Miller decides to testify, the Rices jury will be done ....” (11 RT 1565.) Defense counsel said nothing in response to the prosecutor’s suggestion that Mr. Rices’s jury would be presentif Miller testified in his own defense. (11 RT 1565.) 153 At the end of the day, the parties discussed scheduling. Thetrial court suggested that Mr. Rices’s jury be placed on telephonic standby because of “the prospect that Mr. Miller would testify. We would want both juries.” (11 RT 1653.) Again defense counsel did not objectto calling Mr. Rices’s jury back to hear Mr. Millertestify in his own defense. (11 RT 1653-1655.) The court then dismissed the Rices jurors until June 18, althoughit placed them on telephonic standby in case they were neededearlier. (11 RT 1661-1663.) On June 11, 2009, the Miller jury alone returned to hear two prosecution witnesses. (5 CT 1092-1094; 12 RT 1682-1838.) One of these witnesses was the “primary investigator on the case, Officer James Hoefer. (12 RT 1750.) In frontof the Miller jury only, the state introduced evidence that when interviewedby police after the crime, Miller said it was his idea to rob thestore all along: “Q: [by the prosecutor]: During the course of your interview with Mr. Miller, did you ask him who cameup with the idea? In other words, whoidea wasit to actually victimize this store, the Granada Liquor store? “A: [by officer Hoefer] Yes I did. “Q: What did hetell you? “A: He told mein January, they were talking about locations to rob. During those conversations, he suggested Granada Liquorstore because of knowledge that he had ofthe store. 154 “Q: So he said it was his idea? “A: Yes, he did.” (12 RT 1778.) The Rices jury was notin court to hear this mitigating evidence. Shortly thereafter, the state then rested its case against Mr. Miller. (5 CT 1095; 12 RT 1839.) Mr.Miller then began calling his defense witnesses. (5 CT 1095; 12 RT 1841.) He called two witnesses that day. (5 CT 1095; 12 RT 1841-1848.) The Rices jury was not present for these defense witnesses called by Mr. Miller’s counsel. (5 CT 1092- 1094.) This was entirely proper, since Mr. Rices had pled guilty and the only evidence relevantfor his jury was evidence presented by the state in aggravation or evidence presented by Mr. Rices in mitigation. Notably, in his cross-examination, the prosecutor asked one of Miller’s witnesses (1) whether she had heard the plan to rob the store was Miller’s, and (2) if that fact would change her opinion of his character. (12 RT 1844.) The Miller jury was ordered back on June 16, 2009 to hear more of the Miller defense case. (5 CT 1095.) The Miller jury returned that day, again without the Rices jury. (5 CT 1101.) Mr. Miller’s counsel called five witnesses in the defense case. (5 CT 11101-1102; 13 RT 1860-1888.) Again, the prosecutor asked each of these witnesses whether they had heard it was Miller who planned the robbery, and whetherthat fact 155 would changetheir opinion of him. (13 RT 1865, 1868-1869, 1873-1874, 1880, 1888.) The Rices jury was notpresent for these defense witnesses either. This, too, was entirely proper since this evidence wasneither (1) evidence presented by the state in aggravation nor (2) evidence presented by the defense in mitigation. Later on June 16, 2009, Mr. Miller’s counsel decidedto call another witness in Mr. Miller’s defense: Mr. Miller himself. (13 RT 1892.) In accord with the prosecutor’s (and trial court’s) suggestion of June 8, and in contrastto all the other defense witnessescalled by Mr. Miller’s counsel, the Rices jury was present in court to hear this particular defense witness called by Mr. Miller. (5 CT 1102; 13 RT 1891.) Yet again there was no objection by defense counsel for Mr. Rices to having the Rices jury there for evidence offered in the Miller defense case by Mr. Miller’s counsel. (13 RT 1891.) On direct examination, Miller told the jury that on the evening of the shooting he had planned to go bowling with Mr. Rices or perhaps see a movie. (13 RT 1899.) They drove around, stopped near the market and Mr. Rices pulled out a gun -- which Mr. Miller had never seen before -- and told him he was going to “take somebody’s money for me.” (13 RT 1907-1908.) Of course, at this point the Miller jury had already heard officer Hoefer’s 156 testimonythat it was actually Mr. Miller’s idea to rob the store. (12 RT 1778.) But the | Ricesjury had not beenin court for that testimony, and wouldin fact never be presented with that information. Instead, Mr. Miller continued,telling the jury on direct examination by his own lawyerthat (1) Mr. Rices told him to put on gloves and a mask, (2) he (Mr. Miller) did so only because Mr. Rices had a gun, (3) they wentin the store and (4) during the robbery, Mr. Rices shot the victims. (13 RT 1909-1921.) Mr. Miller explained that he was scared of Mr. Rices becauseof his “reputation.” (13 RT 1939.) While still being questioned by his own lawyer, Miller explained exactly what he meant: “Well, as far as streets go, street ethics and being a gang member,[Rices] has a very high status.” (13 RT 1939.) On defense counsel’s immediate objection,the trial court told the Miller jury it could consider this gang evidence, but told the Ricesjury it could not. (13 RT 1940.) Defense counsel for Mr. Miller then had Mr. Miller confirm that he told police officers that Mr. Rices had “a killer glaze in his eyes.” (13 RT 1940.) Defense counsel objected again. (13 RT 1941.) Thetrial court noted that there wasa conflict between the evidence which counsel for Mr. Miller wanted to introduce to prove a duress defense -- involving acts of violence and Mr. Rices’s reputation -- “which would not be offered to a jury trying only the penalty issue.” (13 RT 1942.) After the 157 court ruled it would “not prevent” Mr. Miller’s lawyer from pursuing this defense, defense counsel for Mr. Rices requested that the Rices jury be present for the prosecutor’s cross-examination. (13 RT 1944.) Defense counsel for Mr. Rices then asked for a mistrial in light of the fact that the Rices jury had been told Mr. Rices was a prominent gang member. (13 RT 1945.) The court denied the motion. (13 RT 1945.) The court asked Mr. Miller’s counsel to “focus on things that don’t involve Mr. Rices.” (13 RT 1945.) When Mr. Miller’s lawyersaid that he wanted to presentadditional evidence regarding the relationship between Miller and Rices, defense counsel finally “request[ed] that the Rices jury be excused so that they are not presentfor that.” (13 RT 1946.) The prosecutor cross-examined Mr. Miller in front of both juries. (13 RT 1950.) At nopointin this cross-examination did the prosecutorelicit any evidence that the idea to rob was Mr. Miller’s. (13 RT 1950-1982.) Instead, and relatively quickly, the prosecutor sought to play Mr. Miller’s recorded police interview in orderto refresh Mr. Miller’s memory. (13 RT 1951-1953.) Defense counsel for Mr. Rices objected to the Rices jury hearing this evidence. (13 RT 1953.) The court asked defense counsel ‘’’whyis this objection coming in now?” (13 RT 158 1955.) Defense counsel explained that the witness was aboutto discuss the facts of the crime to which Mr. Rices had already pled guilty. (143 RT 1955.) The court noted that this evidence wasrelevantto the “circumstancesof the crime portion ofthe trial.” (13 RT 1955.) Thetrial court denied the request to removethe Ricesjury, ruling that “so long as the examination of Mr. Miller is limited to what transpired at the store, impressionsofit, what he heard, what he saw, what he claims Mr. Rices did, your objection is overruled. That’s circumstancesof the crime.” The prosecutor then elicited the fact that Miller told police one victim said “please don’t kill me. I just want to be with my family.” (13 RT 1958-1959.) The prosecutor elicited the fact that Miller told police the other victim said “I’m young. Please don’t kill me. Let me live.” (13 RT 1959.) After Mr. Miller’s testimony, and while still in front of both juries, Mr. Miller’s lawyercalled another defense witness, Sherri Miller, the defendant’s mother. (13 RT 1992-1993.) After Ms. Miller’s brief and unremarkable testimony, the trial court excused the Rices jury. (13 RT 1998.) Atthat point-- solely in front of the Miller jury -- Mr. Miller was recalled for continued direct and cross-examination. (13 RT 2000-2013.) In his closing argumentto the jury at the penalty phase of Mr. Rices’s case, the 159 prosecutorrelied extensively on the evidence elicited during Miller’s testimony. Thus, he arguedthat Miller’s statements to police about the victims’ last words providedall the aggravating evidencethe jury needed to impose death:“If there wasn’t one shred of aggravating evidence beyondthat, not one thing, you would be justified in saying, [‘]For that conduct, Jean Pierre Rices, you deserveto die.[‘]” (19 RT 2748; see also 19 RT 2747, 2780.) Andin closing argumentsfor the defense, counsel for Mr. Rices was unable to cite to a single favorable point in Miller’s statements or testimony, and instead spent a great dealof time trying to cast doubt on Miller’s credibility. (See, e.g., 19 RT 2763- 2764, 2788.) As more fully discussed below, defense counsel’s failure to object when the Rices jury was seated for Miller’s testimony deprived Mr. Rices of the effective assistance of counsel. While thetrial court was certainly correct that Miller’s testimony may have been relevant “circumstances of the crime” evidence, in capital cases -- and for sound policy reasons-- it is only the state that may present aggravating evidence against a defendant. Had a timely motion been made,the Rices jury would have been excused during Miller’s testimony, and would have heard noneof the extremely prejudicial testimony about Mr. Rices’s gang connections, Miller’s statements to police about the crimeitself, or Miller’s asserted reasons for committing the crime. Because the evidence that came in during Miller’s testimony was extremely prejudicial, and played an importantrole in the 160 prosecutor’s request for death, a new penalty phase is required. B. Upon A Proper Objection, The Trial Court Would Have Been Required To Excuse Mr. Rices’s Jury Prior To Presentation Of Miller’s Defense Case. Both the United States and California Constitutions give defendants in criminal cases a right to assistance of competent counsel. (See United States Constitution, Amendment6; California Constitution, Art. 1, § 15; Corenevsky v. Superior Court (1984) 36 Cal.3d 307, 319.) When a criminal defendantseeksrelief because his lawyer has provided deficient representation, he must prove two elements: (1) counsel’s performance fell below an “objective standard of reasonableness”and (2) counsel’s error undermined confidencein the outcomeofthetrial. (Strickland v. Washington, supra, 466 U.S.at pp. 687, 694.) Here, both the performance and prejudice prongs of the Strickland test have been met. 1, Because there was notactical reason for defense counsel to want the Rices jury to hear Miller testify, and because a timely objection would have preventedit, trial counsel’s failure to object to seating of the Rices jury during Miller’s testimony fell below an objective standard of reasonableness. Asnoted, the performance prong of the Stricklandtest is established when defense counsel’s performancefalls below an “objective standard of reasonableness.” (Strickland 161 v. Washington, supra, 466 U.S.at p. 687.) The failure to object to damaging and inadmissible testimony or to make appropriate motions can be the basis for a conclusion that counsel was incompetent. (People v. St. Andrew (1980) 101 Cal-App.3d 450; People v. Schiering (1979) 92 Cal.App.3d 429; People v. Sundlee (1977) 70 Cal.App.3d 477, 485; People v. Coffman (1969) 2 Cal.App.3d 681, 690.) Here,that is exactly what happened. As explained above,thestate relied extensively on evidence which camein during Miller’s testimony in urging the jury to impose death. Given the significance of this evidence to the state’s case there is no conceivable tactical reason which would justify a decision to allow the testimony to be heard by Mr. Rices’s jury. To besure, counsel cannot be faulted for failing to move to excuse his client’s jury prior to Miller’s testimonyif, in fact, such a motion would likely have been denied. After all, counsel cannotbe ineffective for failing to make a motion that would be denied. But in light of California law in this area, and under the unique circumstancesofthis case, such a motion by defense counsel would havehadto be granted. Pursuant to California Government Code section 100, subdivision (b) all criminal prosecutions are conducted in the nameof the People of the State of California and by 162 their authority. (See also Cal Pen. Code § 684.) Government Codesection 26500 makes clear thatit is the district attorney who “shall initiate and conduct on behalf of the people all prosecutions for public offenses.” Put simply, “California law does not allow private prosecutions.” (People v. Dehle (2008) 166 Cal.App.4th 1380, 1386.) As this Court has noted,“[{t]he prosecution of criminal offenses on behalf of the People is the sole responsibility of the public prosecutor... .” (Dix v. Superior Court (1991) 53 Cal.3d 442, 451.) There is good reasonfor this rule. The public prosecutor “is the representative not of any ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compellingas its obligation to govern at all; and whoseinterest, therefore, in a criminalprosecutionis not that it shall win a case, but that justice shall be done. Assuch,heis in a peculiar and very definite sense the servantof the law, the twofold aim of whichis that guilt shall not escape or innocence suffer.” (People v. Superior Court (Greer) (1977) 19 Cal.3d 255, 266.) Special burdens of honesty and candorare routinely placed upon prosecutors in the adversary system which are not placed on other parties. The goal of all these rules is to ensure, to the maximum extent possible, a reliable result. (See, e.g., Brady v. Maryland (1963) 373 U.S. 83 [prosecutors havea constitutional duty to disclose exculpatory evidence]; United States v. Bagley (1985) 473 U.S. 667, 674 [prosecutors have a constitutional duty to disclose evidence 163 which impeachesstate witnesses]; Kyles v. Whitley (1995) 514 U.S. 419 [prosecutors have a constitutional duty to “learn of any favorable evidence knownto the others acting on the government’s behalf in the case, including the police.”]; Napuev. Illinois (1959) 360 U.S. 264 [prosecutors have a constitutional duty notto presentfalse testimony from their own witnessesandto correct false testimony from their own witnesses whichis elicited on cross-examination]; In re Sakarias (2005) 35 Cal.4th 140 [prosecutors have a constitutional duty not to present inconsistent arguments].) The special rules which apply to prosecutors are not just constitutional in origin. Thus, Penal Codesection 1054.1 provides discovery rules which apply to prosecutors in criminal cases. Generally speaking, this section requires provision to the defenseofall relevant evidence,including written statements of witnesses, exculpatory evidence and impeaching evidence. It also requires the state to disclose oral statements of witnesses. (Roland v. Superior Court (2004) 124 Cal.App.4th 154, 165; People v. Campbell (1972) 27 Cal.App.3d 849, 858.) These special statutory and constitutional rules which apply to prosecutors ensure that the entity entrusted with prosecuting crimes will do so in as fair a manneras possible within the confines of an adversary system. For example, by limiting the prosecution of crimesto state prosecutors whoare subject to Brady, Bagley and Napue, our court system 164 can state with confidence that when the prosecution calls a witness to testify against a defendant, not only will the defendant have been provided with any evidencein thestate’s possession which could be used to impeach the witness,but if that witness presents false testimony during either direct or cross-examination, the prosecutor will honorhis duty to expose that falsehood. Andthe statutory rules applicable to prosecutors in the criminal system ensure that any statements made by that witness -- whetheroral or written -- will have been providedto the defense. In this way, the system ensures that when a prosecution witnesstestifies, the defense is prepared to confrontthe testimony and the ultimate result will be a reliable proceeding. It is for this reason that private parties who are not subject to these constitutional and statutory rules should never be permitted to call witnesses against a criminal defendant. Only the state prosecutor -- who is boundto follow these rules of fairness-- can prosecute in our system. This has long been the law. Thus,private parties may notfile criminal complaints. (People v. Viray (2005) 134 Cal.App.4th 1186, 1201; People v. Muni Court (Pellegrino) (1972) 27 Cal.App.3d 193, 196-198, 200-201, 208.) Private parties may not fund investigation in criminal cases. (People v. Eubanks (1996) 14 Cal.4th 580.) It follows from all these authorities that private parties may not call witnesses against a defendantin 165 a defendant’s case. Andthatis exactly what section 1093, subdivision (b) provides. Section 1093 generally governs the procedureoftrial and providesin relevant part, as follows: “The jury having been impaneled and sworn, unless waived,thetrial shall proceedin the following order, unless otherwise directed by the court: (c) The district attorney, or other counsel for the people shall then offer the evidence in support of the charge . . . .” (Emphasis added.) Therule is no different at the penalty phase of a capital trial Section 190.3 governs the procedures applicable to the penalty phase of a capital trial. Like section 1903, subdivision (c) this section provides that only the prosecution can offer evidence ~ against the defendant: “In the proceedings on the question of penalty, evidence may be presented by both the people and the defendant... .” Butthat is not what happened here. As noted above,the trial court called the Rices jury back to hear counsel for Mr. Miller present aggravating evidence from Mr. Miller. Becausethis witness was not called by the prosecutor, none of the procedural protections 166 which would have applied to this evidence hadit been elicited by the prosecution applied to this evidence -- including the constitutional rules of Brady, Bagley, Kyles, Napue and Sakarias and the statutory rules of discovery discussed above. Yet, as discussed above, each ofthese rules wasspecifically designed to try and ensure a fair proceeding. Onthe facts of this case, this was certainly not some academic point. Mr. Miller’s counselhadnostatutory obligation to provide any discovery to Mr. Rices’s counsel or even notice of the witnesses he wascalling in Miller’s defense. Without notice, as defense counsel noted in one of his objections, matters that should have been taken care of in pre-trial rulings were being presentedto the Rices jury. (13 RT 1945.)”° And of course Mr. Miller’s counsel was not obligated under Brady or Bagley to disclose to counsel for Mr. Rices evidence which impeached Mr. Miller. Nor was Mr. Miller’s counsel obligated under Napue to correct any falsehoods which Miller provided on cross-examination. Those obligations apply only to the prosecution. And Miller’s counsel had no obligation under the discovery statutes to disclose to Mr. Rices’s lawyer 0 In fact, counsel for Mr. Rices attempted to do just that. Priorto trial he litigated the question of whether gang evidence would comebefore the jury and the prosecution stated it would not be introducing gang evidence in aggravation. (4 RT 609.) The matter was discussed again later. (4 RT 636-641.) At no point did counsel for Mr. Miller advise the court or Mr. Rices’s counsel that Mr. Miller was going to be introducing gang evidence. (4 RT 609-610, 636-641.) 167 any written or oral statementsofhisclient. Moreover, becausethe state was not calling Mr. Miller as its witness, it could avoid all the disclosure and good faith obligations which would apply to its own witnesses. Indeed, the prosecutor made this point explicitly prior to trial when he moved under Penal Code section 1054.7 to avoid disclosing statements made by “John Doe # 1.” (3 CT 590-591.) After an in camera hearing,the trial court granted this motion based on the state’s representation that “John Doe will not be called as a witness by the People.” (4 CT 769.) Significantly, however, in a subsequently unsealed exchange it became clear that John Doe wasactually Mr. Miller. (12 RT 1817.) In fact, in pleadings filed in conjunction with record settlement the state has conceded that John Doe was Mr. Miller. (Respondent’s Reply to Appellant’s Application for Order Unsealing Portions of Record on Appeal at p. 6.) Thus, the state was able to introduce aggravating evidence through a witnessat trial while at the same time keeping secret from the defense prior statements that this very same witness had made. In short, permitting the Rices jury to hear counsel for Mr. Miller present evidence in aggravation from Miller effectively allowed aggravating evidence from a second 168 prosecutor, operating without any of the constraints normally imposedon the prosecution. This not only violated Mr. Rices’s federal and state due process rights to a fair trial, but his Eighth Amendmentright to a reliable penalty phase determination. (See,e.g., Caldwell v. Mississippi (1985) 472 U.S. 320, 323; Beck v. Alabama (1980) 447 U.S. 625, 638, n.13.) In makingthis argument, Mr. Rices takes no issue with the trial court’s decision to seat two juries. California courts have long recognized that seating two juries can be a viable alternative to complete severance andfully separate trials. (People v. Harris (1989) 47 Cal.3d 1047, 1070-1076; People v. Wardlow (1981) 118 Cal.App.3d 375, 383-387.) But in cases where twojuries are seated, each jury should hear only evidence against the defendant presented by the prosecution, not the other defendant. (See People v. Harris, supra, 47 Cal.3d at pp. 1070-1076; People v. Wardlow, supra, 118 Cal.App.3d at pp. 383-387.) People v. Wardlow, supra,illustrates how a dual jury trial should be conducted. There, two defendants (Wilson and Wardlow) weretried for robbery and murder. (People v. Wardlow, supra, 118 Cal.App.3d at p. 380.) One defendant (Wilson) made statements which incriminated Wardlow. (/d. at p. 383.) At Wardlow’s request, the trial court empaneled separate juries to hear the cases. (Ibid.) Attrial, both defendants testified on 169 their own behalf. (Jd. at p. 382.) After the state rested its case-in-chief, the defense cases began. Wilsontestified in his own defense; when Wilson testified, however-- and incriminated Wardlow -- Wardlow’s ownjury was not present. (Id. at p. 386.) In short, People v. Wardlow demonstrates the proper procedure to be used when twojuries have been empaneled: where one defendanttestifies in his own case and implicates a second defendant, the jury for the second defendant should not be present. Mr.Rices has been unable to discover any California case where a trial court did what the court did here: (1) order separate juries for two defendants but (2) require the jury of one defendantto be present when the co-defendant presented adverse evidence. But one Florida case has addressedthis situation. In Watson v. State (Fla. 1994) 633 So.2d 525, the Florida Court of Appeal addressed the very issue presented here. In that case, defendant Watson wastried for attempted robbery along with co- defendant Tomingo. They weretried together, although they had separate juries. After the state rested its case against both defendants, Tomingo began his case-in-chief. He testified in front of both juries, incriminating Watson as the shooter during a failed robbery attempt. Trial counsel for Watson made no objection. On appeal, Watson contended this evidence was inadmissible against him. The appellate court “agree[d] that it was error to allow Watson’sjury to remain in the courtroom during the taking of 170 testimony in Tomingo’s case... .” (Watson v. State, supra, 633 So.2d at p. 525. Compare People v. Rodriguez (1997 I.) 680 N.E.2d 757, 767 [reversible error for state to have “two bites at the apple of defendant’s guilt because the trial court allowed the State to first impeach its witnesses asto their initial statements, and then to have those impeachments supported by [co-defendant’s] cross-examinationsin the presence of defendant's jury.”].) The Watson court noted, however, that because defense counsel had madeno objection, the only potential remedy was for the defendantto establish “that his counsel wasineffectivein failing to request removal of Watson’s jury during Tomingo’s case.” (Watsonv. State, supra, 633 So.2d at p. 526.) Forall the reasons discussed above,the rule applied in Watson is sound. As discussed above, permitting counsel for Mr. Miller to act as a second prosecutor violated both the state and federal constitutions. Had defense counsel made a timely motion, he could have kept the Rices jury from hearing any of Miller’s testimony. And had Miller nottestified, the state would have been unableto elicit his prior statements to police that Rices shot the victims while they were begging fortheir lives. In short, had defense counsel askedthe trial court to follow the procedure applied in Wardlow and approvedin Watson,the Rices jury would not have heard Millertestify. Mr. Rices recognizes that a reviewing court will not find ineffective assistance of 171 counsel wherethe challenged failure could have been the result of an informed reasonable tactical choice rather than of neglect. (People v. Pope (1979) 23 Cal.3d 412, 425-426.) In somecases, however,“there simply could be no satisfactory explanation.” (Jd.at p. 426.) This is especially true where the failure was in direct contravention of counsel’s chosen defense strategy. For instance, counsel’s conduct is unreasonable where “[h]aving chosen to pursue [a particular] line of defense,” counsel does not introduce readily available evidence corroborating that defense. (Hart v. Gomez (9th Cir. 1999) 174 F.3d 1067, 1071; Dugas v. Coplan (Ast Cir. 2005) 428 F.3d 317, 328-329; Soffar v. Dretke (Sth Cir. 2004) 368 F.3d 441, 473; Pavel v. Hollins (2nd Cir. 2001) 261 F.3d 210, 219; Harris v. Reed, supra 894 F.2d at p. 879. See also Ege v. Yukins (6th Cir. 2007) 485 F.3d 364, 378-379.) That is the case here. From the beginning of this case -- when defense counsel moved for severance from Miller -- defense counsel wanted no part of Miller. As discussed, defense counsel movedto severthetrial, or, in the alternative, empanel dual juries. (3 CT 478-490.) He based this motion, primarily, on the presence of incriminating pre-trial statements made by Miller and conflicting defenses. (3 CT 481-486.) He noted that Mr. Miller’s testimony would be “damaging” to the defense. (3 CT 485.) Given defense counsel’s demonstrated strategy, there was no conceivable tactical reason for counsel’s failure to object to the presence of the Rices jury during Miller’s testimony. 172 Nothing more is necessary to establish that counsel’s conduct was not based on a reasonabletactical judgment.” 2. There is a reasonable probability that absent counsel’s error, the result of the penalty phase would have been different. The only remaining question is prejudice. Where defense counsel has provided ineffective assistance, reversal is required whenever counsel’s error “undermines[s] confidence in the outcomeofthe case.” (Strickland v. Washington, supra, 466 U.S.at p. 694.) In Stricklanditself the Supreme Court rejected the notionthatthe test for prejudice was an “outcomedeterminative standard.” (/d. at pp. 693-694.) To the contrary, defendants are not required to show that “counsel’s conduct more likely than notaltered the outcomein the case” but merely “a probability sufficient to undermine confidence in the outcomeofthe trial.” (Zbid.) All a defendant must show underthis standardis that one juror could have reasonably reached a different result absent the error. (See, e.g., 21 Asnoted above,afterthe trial court ruled that Miller’s counsel could explore certain issues with Miller on direct examination, defense counsel asked that the Rices jury be present for the prosecutor’s cross-examination. (13 RT 1946.) In no way, however, does this reflect some kind oftactical decision by counsel that he wanted the Rices jury to hear Miller’s direct examination testimonyin the first instance. Instead,it reflects defense counsel’s attempt at mitigating the damage caused bythe fact that the Rices jury heard Miller’s direct examination. Moreover, when it becameclear exactly what evidence the prosecutor was seeking to elicit on cross-examination, defense counsel movedto excuse the Rices jury. (13 RT 1953.) 173 Wiggins v. Smith (2003) 539 U.S. 510, 537 [finding prejudice under Strickland where absent counsel’s penalty phase error “there is a reasonable probability that at least one juror would have struck a different balance” and votedforlife].) Here, counsel’s error requires reversal. The consequencesof allowing the Rices jury to hear Miller’s testimony were devastating. Mr. Rices’ jury was exposed to Miller’s claim that Rices forced Miller to do the crime, a claim some members of Miller’s jury foundcredible in refusing to convict. (13 RT 1899, 1907-1908, 1939, 1940.) The Rices jury also heard Miller’s devastating pretrial statements to police, which only camein because the Rices jury waspresent for Miller’s testimony. And in closing arguments, the prosecutor urged the jury to rely on these statements in returning a death verdict: “These kids begged for their lives. They’re laying on the floor. 22-year-old girl says [‘]I just want to be with my family. Let me live.[’] 23-year-old mansays, [“]?’'m young. I wantto live.[’] “He doesn’t care. He doesn’t care. None of that matters to Jean Pierre Rices. So whatif they had the money? So whatif the victims were cooperative? So whatif the victims were beggingfor their lives? Jean Pierre Rices wanted to kill them. There was no other reason.” (19 RT 2747.) Absentthis devastating evidence,“there is a reasonable probability that at least one juror would havestruck a different balance” and voted forlife. (Wiggins v. Smith, supra, 174 539 U.S. at p. 537.) Reversal of the penalty phase is required. 175 XI. ONCEIT BECAME CLEAR THAT MILLER WASGOING TO TESTIFY IN FRONT OF THE RICES JURY, THE TRIAL COURT’S FAILURE TO — PROVIDE THE RICES DEFENSE TEAM WITH A COPY OF MILLER’S PRE- TRIAL “FREE TALK” WITH POLICE VIOLATED MR.RICES’S RIGHT TO THE EFFECTIVE ASSISTANCE OF COUNSEL. A. Introduction Asdiscussed in Argument X above, had Miller been called as a witness by the state, the prosecution would have been obligated under both California statutes and federal constitutional principles to disclose to counsel for Mr. Ricesall relevant evidence relating to Miller’s potential testimony, including (1) all oral statements Miller made,(2) all written statements he made, (3) any evidence which impeached Miller’s account of events and (4) all evidence which impeachedhis testimony and/orcredibility. (See Pen. Code, § 1054.1; Kyles v. Whitley, supra, 514 U.S. 419; United States v. Bagley, supra, 473 U.S. at p. 674; Brady v. Maryland, supra, 373 U.S. 83; Napuev. Illinois, supra, 360 U.S. 264.) These rules were designed to ensure fairness in the criminal justice system and avoid unfair surprise. However, because it was the co-defendant-- not the prosecution -- who called Millerin this case, none of these rules applied. As discussed more fully in ArgumentX, it is precisely for this reason that defense counsel for Mr. Rices should have immediately 176 objected to the Rices jury being present for Miller’s testimony. Underthe facts ofthis case there was no conceivable tactical reason for defense counsel’s failure to object. (Argument X, supra, at pp. 171-172.) But there maybeat least a partial explanation. Priorto trial, police and Miller had an interview several hours long. Thetrial court permitted the prosecution to keep this interview a secret from the defense. Withoutthis interview, when Miller wascalled as a witness-- as discussed in Argument X -- defense counsel did not object. As discussed below, however, had defense counsel hadthis interview, he certainly would have objected to Miller testifying before the Rices jury. Thetrial court’s ruling permitting the state to keep this interview a secret violated both state and federal law and requires a new penalty phase. B. The Relevant Facts. Penal Code section 1054.1, subdivision (b) imposesonthestate the obligation to disclose to a defendant“[s]tatements of all defendants.” In this case, it turns out that co- defendant Miller made statements to police prior to trial during a lengthy “free talk” he had with investigators. (3 CT 590-591; 12 RT 1817.) Thus, pursuantto section 1054, subdivision (b) these statements should have been disclosed. 177 Butpriorto trial the state moved to avoid disclosing to Mr. Rices any of these statements pursuantto section 1054.7. (3 CT 590-591, 689-692; 4 CT 769.) That section permits the state to keep certain material a secret where “good cause” is shown. Thetrial court granted the state’s motionin light of the state’s assurance that Miller “will not be called as a witness by the People.” (4 CT 769.) Ofcourse, once it became clear that Miller was going to be a witness, there was no longer any question as to whether these secret statements should have been disclosed. Nothing in section 1054.7 permits the state to (1) obtain statements from a witness (or co- defendant) priortotrial, (2) introduce inculpatory evidence through that witness or co- defendantin its case against a defendant, and (3) nevertheless keep the pre-trial statements a secret from the defendant’s lawyer. And here, although it was the co- defendant whooriginally called Miller, there is little doubt that the state introduced aggravating evidence from Miller and relied on that evidence in asking the jury to impose death. (19 RT 2747, 2780.) Hadthe free talk been disclosed to counsel for Mr. Rices, there is no doubt whatthe result would have been: defense counsel would have moved to excuse the Rices jury as soon as Miller wascalled as a witness. In Argument X above, Mr. Rices has contended that even on the current record, trial counsel’s failure to move to excuse the Rices jury from hearing Miller’s testimony 178 requires a new penalty phase. Even putting that argument aside, however, reversalis still required. Once it becameclear that Miller was goingto testify in front of the Rices jury, there was no longer any properjustification for keeping his “free talk” a secret. At that point, the trial court was required to reconsiderits ruling allowing the state to suppress the free talk interview with police. As discussed below,allowing the state to keep the statements Miller madepriorto trial a secret from Mr. Rices’s lawyer even after Miller becamea witness at the Rices penalty phase resulted in a fundamental deprivation of Mr. Rices’s right to the effective assistance of counsel. Reversal is required.” C. A Trial Court’s Action May Cause Even The Most Diligent Of Counsel To Provide Ineffective Assistance. The Sixth Amendmentprovides that criminal defendants are entitled to the effective assistance of counselat all critical stages of the proceedings against them. (United States v. Gouveia (1984) 467 U.S. 180, 187.) Given the fundamental role played by defense counsel in ensuring a reliable result, the right to counselis notsatisfied by the mere appointment of counsel, but by counsel “whoplays the role necessary to ensure that 2 A transcript of the Miller interview wasnot disclosed prior to or duringtrial. It wasfinally disclosed during post-conviction record completion proceedings, and then only pursuant to a January 23, 2014 protective order permitting use in “state court appellate proceedings” but precluding general disclosure of the interview. In an order dated November12, 2014 this Court unsealed the transcript. Accordingly, this brief refers to the material formerly covered by thetrial court’s protective order. 179 the trial is fair.” (Strickland v. Washington, supra, 466 U.S.at p. 685.) There are two ways counsel can fail to play this critical role. First, counsel can makean error and thereby “fail [] to render ‘adequate legal assistance.’” (Id. at p. 686.) The Court has termedthis type of failure as “actual ineffectiveness.” (Ibid.) Alternatively, state interference can cause even the mostdiligent of counsel to be unable to play the role necessary to ensurea fair trial. Thus,a trial court mayitself violate a defendant’s rightto the effective assistance of counsel by actions whichinterfere with the ability of counsel to respondto the state’s case or conduct a defense. (Ibid.; accord Geders vy. United States (1976) 425 U.S. 80 [defendant denied Sixth Amendment right to effective counsel wheretrial court precluded him from consulting with counsel during an overnightrecessin trial]; Herring v. New York (1975) 422 U.S. 853 [defendant denied right to effective counsel wheretrial court refused to allow his counsel to make closing argumentin benchtrial]; Brooks v. Tennessee (1972) 406 U.S.605 [defendant denied Sixth Amendmentrightto effective counsel where trial court required that he testify first if he wishedto testify atall].) The lower federal courts have recognized someof the varied instances in which a trial court can prevent counsel from rendering effective assistance of counsel. The 180 general rule from these cases is that the defendant has been deniedhisright to effective assistance of counsel whenevera trial court’s actions fundamentally interfere with the ability of counsel to contest the state’s case or present a defense. (See, e.g., Sheppard v. Rees (9th Cir. 1989) 909 F.2d 1234, 1237; United States v. Gaskins (9th Cir. 1988) 849 F.2d 454, 460; United States v. Harvill (9th Cir. 1974) 501 F.2d 295, 295-296; Wrightv. United States (9 th Cir. 1964) 339 F.2d 578, 579; Hintz v. Beto (Sth Cir. 1967) 379 F.2d 937, 942.) Thus, where defense counsel makescritical tactical decisions without notice of a particular theory of culpability -- and the trial court undercuts the basis of those decisions by instructing the jury on such a theory -- the defendant has been denied his rightto the effective assistance of counsel. (See, e.g., Sheppard v. Rees, supra, 909 F.2dat pp. 1236-1237; United States v. Gaskins, supra, 849 F.2d at p. 460.) The reasonis simple: to effectuate the constitutional right to counsel, and to permit defense counsel to prepare an adequate defense, the defendant must be clearly informed of the charges against him and the theories of culpability upon which he will be prosecuted. (See, e.g., Sheppard v. Rees, supra, 909 F.2dat p. 1236.) These authorities govern this case as well. Thetrial court provided Mr. Rices with a separate jury. From that point on, every decision defense counsel madein the case was 181 made with the knowledge and understanding that Mr. Rices would have a separate jury. Andwhileit is true, for all the reasons set forth in Argument X, supra, that defense counsel should have immediately objected to Miller testifying in front of the Rices jury, the trial court’s ruling on the state’s section 1054.7 motion -- and its decision not to revisit that ruling once it becameclear that Miller would testify against Rices -- made the absence of an objection even morelikely. After all, Miller spoke with police during an interview which was provided to defense counsel during the discovery process. (See 37 CT 8389-8582.) Yetit is only in Miller’s subsequentfree talk with police -- which the state kept a secretfrom defense counsel -- that Miller undercutthe idea that he was anything but a willing participant in the crime. In his initial statementto police -- which was disclosed to defense counsel and which the prosecutortold the Rices jury was “much morereliable” (19 RT 2780) -- Miller told police that (1) the robbery was his (Miller’s) idea, (2) he and Rices did other robberies before this one, (3) immediately upon getting into Rices’s car that night, Rices told him that they were “aboutto go bust a lick” and that Miller was to drive, to which Miller responded, “[O].k.,” (4) he took packsof his favorite cigarettes during the robbery 182 because he was “gonnagrab cigarettes that” he wanted, “[njot what anybody else want[ed],” (5) he wasfriends with Ms. Mattia and her brother, Chris, (6) he and Mr. Rices talked or bragged about the murdersin front of others, and (7) he saw and handled Rices’s gun and bullets before the murder, and was very familiar with firearms. (37 CT 8390-8391, 8405-8406, 8412, 8416-8417, 8423, 8426-8427, 8437, 8449-8456, 8477- 8482, 8495-8500, 8521, 8537, 8541-8542, 8564, 8566-8567.) In his free talk -- kept a secret from the defense -- Miller recanted all of this. Thus, contrary to his “much morereliable” statements to police, Miller claimedin his free talk that (1) the robbery was nothis idea, (2) he and Mr. Rices did not commit any other | robberies, (3) he did not learn about the robbery immediately upon getting in the car, and instead first learned of it when they were parked across the street from the store, (4) he did not take his favorite brand of cigarettes during the robbery, (5) he was notfriends with Heather or Chris Mattia,(6) he did not discuss the crime with other people, and (7) he never saw or handled Mr. Rices’s gun before that night, and actually had no experience with guns. (40A SCT 8902, 8925-8927, 8933-8934, 8936.) In short, Miller did everything possible in the free talk to set up his duress defense and retreat from his earlier statements to police that were fundamentally inconsistent with a duress defense. Obviously, had the trial court not kept this information a secret from defense 183 counsel, defense counsel would have had someinkling as to.what was coming and would therefore have objected to the presence of the Rices jury as soon as Miller wascalled as a witness. Had counsel for Mr. Rices seen the free talk, he would have knownthat Miller was aboutto give a version of the offense which wasnot only very different from the version he had previously given police, but which was even more damagingto Rices. If the Sixth Amendmentright to counsel means anything,it means that counsel must be entitled to make decisions about how to contest evidence, and what objections to make, without being affirmatively mislead as to what evidence is. Moreover, keeping this evidence a secret from defense counsel resulted in the Rices jury hearing aggravating evidence which wasnot subject to any of the constraints normally imposed on aggravating evidence and designedto ensurereliability in violation of Mr. Rices’s Fifth and Fourteenth Amendmentrights to a fair penalty phase and his Eighth Amendment right to a reliable penalty phase determination. (See Caldwell v. Mississippi, supra, 472 USS.at p. 323; Beck v. Alabama, supra, 447 U.S.at p. 638, n.13.) D. The Court Induced Deprivation Of Counsel Requires Reversal. The Supreme Court hasarticulated two different standards to be applied in assessing whena violation of the Sixth Amendmentright to counsel will require reversal. 184 Forboth practical and policy reasons, the Supreme Court has madeclear that the standard of prejudice dependsentirely on the source of counsel’s ineffectiveness. As discussed below, where the case involves “actual ineffectiveness”-- that is, where counsel has made errors which a reasonably competent attorney would not have made-- the burdenis on the defendant to prove prejudice. As also discussed below, where counsel’s ineffectiveness is causedbythestate itself, prejudice need not be proven, but is presumed. In Strickland itself the Court addressed for thefirst time the question of what standard should apply to “judge a contention that the Constitution requires that a criminal judgmentbe overturned becauseofthe actual ineffective assistance of counsel.” (466 U.S.at p. 684.) The Court initially held that a defendant must prove his lawyer’s performance wasdeficient. (Id. at pp. 687-691.) The Court then addressed allocation of the burden of proof in connection with the question of prejudice. The Court was explicit that allocation of the burden of proof depended on whetherthe right to counsel had been impaired by state conduct, or simply by an ineffective lawyer. Thus, the Court ultimately concluded it was appropriate to impose the burden of proving prejudice on the defendantin Strickland itself precisely because the state was not responsible for the error in the first instance: 185 “[A]ctual ineffectiveness claims alleging a deficiency in attorney performance are subject to a general requirementthat the defendant affirmatively prove prejudice. The governmentis not responsible for, and hencenotable to prevent, attorney errors that will result in reversal of a conviction or sentence.” (466 U.S.at p. 692.) The Court wascareful to distinguish these types of ineffectiveness claims from situations where the lawyer’s effectiveness was compromised becauseofstate action. The Court noted that in cases involving “state interference with counsel’s assistance” the defendant did not have a burdento prove prejudice, but prejudice was “presumed.” (466 U.S. at p. 692.) The Court explained that the reason these types of errors were treated differently was becausethe state itself was “directly responsible [for these errors and as a result they were] easy for the governmentto prevent.” (Jbid.) The different treatment Strickland afforded state-created impediments to counsel’s assistance reflected the exact position taken by the State of California as well. In Strickland, United States Solicitor General Rex Lee filed an amicusbrief on behalf of Florida, the petitioner in that case. The California Attorney General explicitly joined that brief. (466 U.S.at p. 670.) California arguedthat in cases of actual ineffectiveness, it wasfair to impose the burden of proving prejudice on defendants “because neither the prosecution nor the court is responsible for the alleged defects in the proceedings.” (Strickland v. Washington, 82-1554, Brief of Solicitor General (Joined by California)at p. 186 28.) Emphasizingthat in the typical ineffective assistance of counselsituation “there is no suggestion” that the prosecution or court were “responsible in any way”(id. at p. 41), California explained it would be unfair to impose a prejudice burden on the state because the court was simply not responsible for counsel’s error: “(Because neither the prosecution northe court is responsible for the alleged errors by defense counsel, it would be unfair to require . . . that the governmentbear the burden on the question [of prejudice].” (/d. at p. 44.) Strickland’s focus on the sourceof the error in allocating the burden of proof was not only premised on California’s own position in the case, but on a long line of Supreme Court case law holding that wherethestate itself created an impedimentto counsel’s representation in a criminal case, the defendant did not have to prove prejudice. Indeed, the Court’s case law both before and after Strickland makesthis point plain. For example, the Supreme Court has properly held that where defense counsel in a criminal case decides not to present closing argument on a defendant’s behalf, a defendant seeking to prove counsel ineffective must establish prejudice under Strickland. (Bell v. Cone (2002) 535 U.S. 685, 696-699; see People v. Dickey (2005) 35 Cal.4th 884, 925-926.) But where defense counsel’s failure to present closing argumentis caused not by defense counsel himself, but by the trial court, the Court has held defendant need not 187 prove prejudice. (Herring v. New York (1975) 422 U.S. 853.) The difference between Herring and Bell, of course, is that the impedimentin Herring was state-created. As the state of California argued in Strickland,it is entirely fair to put the prejudice burden on the state where the court is “responsible for” the error as it was in Herring. And the Supreme Court in Strickland agreed, notingthat in this situation prejudice should be presumed. (466 U.S.at p. 692.) Indeed, in Bell v. Cone itself the Court explained the result in Herring by noting that it involved “government action.” (Bell v. Cone, supra, 535 U.S.at p. 696, n.3.) Significantly, the Court’s focus on “sovernmentaction”in allocating the burden ofproof in Strickland, Bell and Herringis entirely consistent with more than four decades of Supreme Court case law: ° Where defense counselfails to consult with the defendant, a defendant seeking to prove counsel ineffective must establish prejudice under Strickland. (See, e.g., Kleba v. Williams (7th Cir. 1986) 796 F.2d 947, 954.) But whereit is a state-created impedimentthat prevents counsel from consulting with defendant, the defendantneed not prove prejudice. (Geders v. United States, supra, 425 U.S. 80.) ° Wheredefense counselfails to call certain witnesses, a defendant seeking to prove counsel ineffective must prove prejudice under Strickland. (See, e.g., Strickland v. Washington, supra, 466 U.S.at pp. 699-700.) But where defense counselis precluded from calling certain witnesses by a state statute, no prejudice need be shown. (Washington v. Texas (1967) 388 U.S. 14.) . Wheredefense counselfails to cross-examinecertain witnesses, a 188 defendant seeking to prove counsel ineffective must prove prejudice underStrickland. (See, e.g., Higgins v. Renico (6th Cir. 2006)470 F.3d 624, 634-635; Welch v. Simmons (10th Cir. 2006) 451 F.3d 675, 706.) But where defense counselis precluded from cross-examining a state witness by state statute, no prejudice need be shown. (Davis v. Alaska (1974) 415 U.S. 308.)” In each of these cases, where the impedimentto effective assistance comes not from defense counsel’s ownactions, but from thetrial court itself, the Supreme Court has refused to require defendants to prove prejudice under Strickland. Indeed, in Bell v. Cone the Court again explainedthe result in Geders by noting that it involved “government action.” (Bell v. Cone, supra, 535 U.S. at p. 696, n.3.) Thus, as the Court has succinctly concluded,state interference with defense counsel’s ability to represent a criminal defendant“is not subject to the kind of prejudice analysis that is appropriate in determining whether the quality of a lawyer’s performanceitself has been constitutionally ineffective.” (Id. at p. 280. Accord Crutchfield v. Wainwright (11th Cir. 1986) 803 F.2d 1103, 1108 [holding that the Strickland harmlesserror standarddoes not “apply to situations wherethe state, the court, or the criminal justice system denies a defendant the effective assistance of counsel.”].) 3 See also Brooks v. Tennessee, supra, 406 U.S. 605 [no showingof prejudice required where impedimentto defense counsel’s representation was caused bystate law]; Ferguson v. Georgia (1961) 365 U.S. 570 [same]. 189 Pursuantto all these authorities, a harmless error analysis is inappropriate in this case. Ultimately, however, there is no need to even address the question. Under any standard of prejudice properly applied to the Sixth Amendmentviolation in this case (or the related Fifth and Eighth Amendmentviolations), reversal would be required. Mr. Rices will be clear about whatheis and is not arguing. Heis not contending that the trial court’s initial ruling under section 1054.7 wasincorrect. After all, at that point there was no indication that Miller was going to become a witness. But onceit became clear Miller was going to be a witness,the trial court was no longerentitled to simply keep Miller’s free talk with police a secret from the defense. The court’s decision to do so undercuttactical decisions defense counsel madeat a critical pointin the case. Hadthe evidence been disclosed to defense counsel, at a minimum counsel would have moved to excuse the Rices jury from hearing Miller’s testimony. As discussed in detail in Argument X above, had defense counsel made such a motion, it would have been granted. Given the aggravating evidence which came in from Miller, and for the identical reasons also discussed in ArgumentX,the court’s decision to keep the free talk a secret from defense counsel for Mr. Rices requires a new penalty phase. 190 XII. THE TRIAL COURT DEPRIVED MR. RICES OF COUNSEL AT A CRITICAL STAGE OF THE PROCEEDINGS WHEN, WITHOUT CONSULTING ~~ COUNSEL, THE COURT RESPONDED EX PARTE TO A QUESTION FROM THE JURY ABOUT SPECIFIC EVIDENCEIN THE CASE. A. Introduction. Co-defendant Miller was calledto testify in front of both the Miller and Rices juries. In an effort to present a duress defense to the robbery charge (on which the felony murder prosecution wasbased), Miller told both juries that Rices forced him to commit the robbery at gunpoint. As to the separate guilt phase trial against Miller, this duress evidence apparently had substantial persuasive value, since the Miller jury ultimately refused to convict. Asto the Rices penalty phase, the prosecutor accurately recognized that this duress claim from Miller was aggravating evidence, andthe trial court agreed. But on cross- examination in front of the Rices jury, Miller’s duress claim was squarely called into doubt by Exhibits 65 and 65A,a letter offered by the state which Miller wrote to Rices after Miller was arrested for murder. For obvious reasons, defense counsel raised no objection to this letter and, after the close of evidence, the state offered into evidence “all of the exhibits that have been referred to and marked.” Yet again defense counsel raised no objection to Exhibits 65 or 65A. 191 During deliberations, the Rices jury asked to see Exhibits 65 and 65A. Without advising either defense counsel or the prosecutor of the jury’s question, the court fashioned a responsein secret. The court told the jury that these exhibits had not been introduced into evidence at Mr. Rices’s trial. As more fully discussed below,in light of the importance of these exhibits in undercutting what the prosecutor himself recognized was aggravating evidence,the trial court’s decision to respondto the jury’s question in the absence of counsel (and the defendant himself) violated Mr. Rices’s federal and state constitutional rights to the assistance of counselatall critical stages of the proceedings, his rights to due process and his right to be present at trial. This resulted in preventing the jury from considering mitigating evidence, and requires that the penalty phase be reversed. Separate and apart from violation of the rights to counsel and presence caused bythe trial court’s action, the trial court’s action also violated Mr. Rices’s Eighth Amendmentright to procedures which ensure a reliable penalty phase. For this reason too, reversal is required. B. The Relevant Facts. On June 16, 2009, the Rices jury was called back into session to hear testimony from co-defendant Miller. (13 RT 1891.) In front of both juries, Miller explained that 192 Rices had forced him to commit these crimes. According to Miller, he had actually planned to go bowling with Mr. Rices or perhaps see a movie. (13 RT 1899.) Miller was in the car with Rices and Nichelle Hopson; they stopped near the Granada Liquorstore and Mr. Rices took out a gun and told Miller that he (Miller) was going to “take somebody’s money for me.” (13 RT 1907-1908.) Rices handed him a bag with a ski mask and a pair of gloves. (13 RT 1908.) Miller was “scared out of his wits.” (13 RT 1908.) In some detail, Miller explained exactly how it was that Mr. Rices forced him to commit the crime. Rices ordered Miller to put on the gloves and the mask. (13 RT 1909.) Miller complied because Rices had a gun and “I didn’t think I had a choice... .” (13 RT 1909.) Rices approachedthe liquor store and Miller “followedas told.” (13 RT 1910.) Once they got in the store, Rices told Miller “what to do and what to grab.” (13 RT 1913.) Miller recalled that when he could notfind the cash, Rices yelled at him “what the fuck are you doing?” (13 RT 1914.) Miller found the cash and putit in the bag. (13 RT 1918.) Rices then ordered him to leave the store and start the car. (13 RT 1918- 1919.) Miller went back to the car and told Nichelle Hopson, who wasstill in the car, to start the car. (13 RT 1920.) Moments later Rices cameout of the store and they drove away. (13 RT 1923.) 193 Miller told both juries that several days later, Rices offered him a hundred dollar bill as his “cut” from the robbery. (13 RT 1928.) Miller said he declined the money. (13 RT 1928.) He did not call police because he was“scared for [his] life.” (13 RT 1928.) Whenhe later spoke with police, Miller said that if he had tried to walk away, Rices would have shot him. (13 RT 1947.) Ofcourse, the obvious purpose of Miller’s testimony was to conveyto his jury that he wasnotliable for felony-murder based on the underlying robbery because he participated in the robbery only out of duress. And this evidence was obviously persuasive to some degree because -- although Miller explicitly admitted his complicity in the robbery itself -- his jury refused to convict and he ended up with a hung jury. (17 RT 2473-2497.) The Rices jury, however, was not concerned with Miller’s guilt. Instead, the Rices jury was concerned only with what penalty to select for Mr. Rices. And certainly evidence that Rices had forced Miller to participate in the robbery was an unusual circumstance of the crime which could reasonably be construed as aggravating. Of this there should be no doubt; the prosecutor himself recognized this exact point, noting that “Sf the claim is that Rices used threats against Miller, that certainly is an aggravant.” (13 RT 1946.) The trial court agreed: “of courseit is.” (13 RT 1946.) 194 But evidence was presented which directly undercut this aggravating inference. Near the end of his cross-examination of Miller, the prosecutor confronted Miller with a letter he had written to Rices from jail. Page oneof this letter was marked as Exhibit 65, and pages 2 through 3 were marked as Exhibit 65A. (13 RT 1981.) Defense counsel for Mr.Rices raised no objection to this evidence. (13 RT 1981.) The contents ofthe letter show whydefense counsel had no objection to the Rices jury seeing the evidence. In the letter Miller telis Rices that “I love you boy.” (13 RT 1982.) In signing off at the end ofthe letter, Miller again expresses this sentiment: “The struggle only gets better. Until pencil meets paper again, your protégé, with love, lil bro, Ant.” (13 RT 1982.) After introducing these portions of Exhibits 65 and 65A,the prosecutor endedhis cross-examination in a rhetorically powerful way: “Q: That letter was sent since you’ve been in custody facing charges on this case, correct? “A: Yes,sir. “Q: Thank you sir. I have no further questions.” (13 RT 1982.) 195 The inference from Exhibits 65 and 65A was obvious,and directly undercut Miller’s testimony that Rices forced him to commit the crime at gunpoint. Afterall, if Miller had genuinely been forced at gunpoint to commit the robbery,it is certainly unlikely he would have expressed the feelings he did in Exhibits 65 and 65A after having subsequently been arrested for murder in connection with that very same robbery. And the prosecutor’s use of Exhibits 65 and 65A was so powerful that moments later defense counsel elected not even to cross-examine Miller on the aggravating duress evidence. (13 RT 1983.) On June 19, 2009 -- three days after the cross-examination of Miller -- the prosecution rested its penalty phase case against Mr. Rices “pending the admission of the People’s exhibits ....” (16 RT 2392.) Out of the jury’s presence,the parties discussed admission of the exhibits. (16 RT 2393.) The state movedinto evidenceall of the exhibits which had been previously marked and referenced during the trial. (16 RT 2393.) The following exchange shows that the trial court and prosecutor McAllister understood that the state was moving into evidence all exhibits which had been marked for identification and referencedattrial: “The Court: ... The People are offering all of the exhibits that have been referred to and marked;is that correct? 196 “Mr. McAllister: Yes, your honor.” (16 RT 2393.) In the ensuing discussion, defense counsel Chambers renewedearlier objections to Exhibits 88 and 89 which involveda videoof certain preliminary hearing testimony. (16 RT 2394.) The court then reiterated -- without objection from the prosecutor-- that as to those exhibits (like 65 and 65A) which “had been offered in front of both juries” the state was “resting conditioned upon the court receiving those additional exhibits.” (16 RT 2395.) This wasthe relevant portion of the colloquy: “Mr. Chambers:] “The Court: “Mr. Chambers: “The Court: “Mr. Chambers: “The Court: I am unclear as too -- I believe exhibits 49 through 65A,there wasa question as to which ones came in to which juries. I’m not sure we’re in a position right now to discuss 50 and 52, 63, 64, 65 and 65A,but if weare -- Now -- Those are from the Miller [testimony] when we had both juries. We neverreally gotintothat. You broughtup anissue that I didn’t think about. Manyof those exhibits are in the jury room. Perhaps I can help the court. Exhibit no. 67 through 89, we rest on our objections on those. Let’s do this, and I think I understand where we’re headed Mr. Chambers... .. [T]he objections are noted, but for the objection to 88, are overruled. I’m going to -- that is as to 67 though 89. Theyare received with 88 being under submission. 197 As to the balance ofPeople’s exhibits that may have been offered infront ofbothjuries,’'m just going to reflect that the People are resting conditioned upon the court receiving those additional exhibits.” (16 RT 2394, emphasis added.) The defense case in mitigation began the next day and continued until June 23, 2009. (5 CT 1196-1197, 1199, 1207; 18 RT 2677.) After the defense rested, the parties turned once again to the admission of exhibits. (18 RT 2677, 2680.) The prosecutor stated that although all defense exhibits had been introducedthere were“still . . . several People’s exhibits” to be discussed. (18 RT 2680.) Hestated that “there are some from several days ago, 63, some others that I am concerned about.” (18 RT 2681.) Exhibit 63 was the audio of an interview between Miller and police. (13 RT 1962.) When it was offered by the state, defense counsel for Mr. Rices had raised a standing objection. (13 RT 1962.) At the end of proceedings on June 23, prosecutors Kaplan and McAllister reminded the court that Exhibit 63 was the “one item of evidence” played in front of both juriesthat still remained an open question andthe parties agreed to return to the question of exhibits on the next day: “Ms. Kaplan: I’m sorry your honor. I didn’t mean to interrupt. There is one item of evidence, and that was number 63, which was aC.D., that was played in front of Miller’s jury and Rices’s jury on the same day. It was received as to Miller’s jury only. It has not been received as to Rices’s jury. 198 “The Court: Notto delay everything. We’ll take up 88, 88A, 90, 91 and 63 tomorrow. And that would resolveall of the pending issues regarding People’s evidence? “Mr. McAllister: Yes. “Ms. Kaplan: Yes, your honor.” (18 RT 2714.) The parties did indeed discuss exhibits the next day. (19 RT 2715-2718.) The court admitted Exhibit 63. (19 RT 2722.) The parties agreed that there were no remaining issues regarding the evidence. (19 RT 2724.) During closing arguments defense counsel for Mr. Rices repeatedly urged the jury not to rely on anything said by Miller because he was simply not credible. (19 RT 2764 [“I don’t think we can rely on anything that man said on the stand.”]; 2787 [“You will have to decide how muchcredibility you give to a man who can’t give the same story twice. He can’t give the same story twice.”]; 2788 [“he lied to protect Nichelle Hopson, and he lied to protect himself, and the lies to protect himself kept growing, and when one didn’t work, he moved onto another, until ultimately you got that packageoflies that he presented to you when he camein here andtestified.”]; 2788 [“You should disregard everything that Anthony Millertells you.”].) The Rices jury began deliberations on penalty at 1:35 on the afternoon of June 24, 199 2009. (19 RT 2798; 6 CT 1255.) The jury was obviously considering Miller’s testimony; approximately 20 minutes after deliberations started, the jury asked thebailiff if they could see copies of Exhibits 65 and 65A. (6 CT 1255.) According to the settled record, the following ex parte contact occurred betweenthetrial court and the jury: “(T]he Bailiff relayed the jury’s request to the Court, . . . the Court advised the bailiff to tell the jury that these exhibits were not admitted into evidence in Mr. Rices’trial and . . . the Bailiff relayed this information to the jury. Counselfor the People and counselfor the defense were not notified of the jury’s note or the Court’s response.” (People v. Rices, Order of January 27, 2014 Settling Record at pp. 3-4, emphasis added.) At 3:34 that afternoon -- roughly 95 minuteslater -- the jury returned a verdict of death. (6 CT 1255.) C. The Trial Court’s Ex Parte Contact With The Jury Violated Due Process And The Sixth Amendment And Requires A New Penalty Phase. The Sixth Amendmentto the United States Constitution provides that criminal defendants are entitled to the assistance of counsel. The Supreme Court has long recognized thatthis right entitled defendants to the presence of counsel atall “critical stage[s]”oftrial. (United States v. Cronic (1984) 466 U.S. 648, 659.) This Court has reached the same conclusion. (See, e.g., People v. Doolin, supra, 45 Cal.Ath at p. 453 [“A 200 criminal defendanthasa constitutional right to counselat all critical stages of a criminal prosecution... .”].) Thus, there are two questions to be resolved in this case. First, was the ex parte communication betweenthe trial court and the jury a “critical stage” of the trial? If so, then Mr. Rices’s right to counselatall critical stages of trial was plainly violated when the trial court responded without consulting counsel. Assumingthat this was a critical stage, the second question is whether the violation of this fundamental right requires reversal in this case. It is to these questions Mr. Rices now turns. As discussed below,not only washis right to counsel indeed violatedin this case, but that violation requires a new penalty phase. 1. Whena deliberating jury asks a question directly related to the facts or law involved in a case, the ensuing communication with the jury is a critical stage of the criminaltrial at which counselis required. This Court has properly recognized that not every ex parte communication betweena trial court and a jury in a criminal case involvesa critical stage of the criminal trial. “[N]ot every communication between the judge and jury constituted critical stage 201 of ... trial.” (People v. Clark (2011) 52 Cal.4th 856, 987.) Thus, a trial court may properly engage in ex parte communications whichrelate to “scheduling, administrative purposes or emergencies that do not deal with substantive matters.” (Ibid. People v. Avila (2006) 38 Cal.4th 491, 613 [no constitutional violation where ex parte communication involved scheduling of further deliberations].) But where communications from the jury involve either the facts or the law of the specific case before the court -- issues on which “counsel could have taken some action on defendant’s behalf to amplify, clarify, or modify” the court’s response -- then communications with the jury do involvea critical stage of the criminal proceedings. (See People v. Hawthorne (1992) 4 Cal.4th 43, 68-69.) Thus, where a trial court fashions an ex parte response to a jury question by providing furtherinstructions on the law orthe re-reading of testimony, the defendant’s constitutional right to counselata critical stage has been violated. (See, e.g., People v. Knighten (1980) 105 Cal.App.3d 128, 132 [re- reading testimony]; People v. Dagnino (1978) 80 Cal.-App.3d 981, 988 [re-instructing jury].) Such ex parte communicationsalso violate the defendant’s state statutory rights 202 under Penal Code section 1138. (People v. Knighten, supra, 105 Cal.App.3d at p. 132.)¥ In short, ex parte communications betweenthetrial court and the jury relating to the specific case -- and not involving administrative or scheduling matters -- violate the defendant’s right to counselata critical stage of the criminal proceedings. (See, e.g., People v. Bradford (2007) 154 Cal.App.4th 1390, 1413; People v. Garcia (1984) 160 Cal.App.3d 82, 88.) As this Court has specifically noted, “[a] jury request for exhibits during deliberation is a critical stage of the prosecution during whichtheright to counsel applies.” (People v. Hogan (1982) 31 Cal.3d 815, 849, disapproved on another point in People v. Cooper (1991) 53 Cal.3d 771, 836.) That is exactly the error which occurred here. The jury asked to see copies of Exhibits 65 and 65A. This was neither an administrative nor a scheduling matter. Instead, it was a matter directly related to evidence which the jury had seen during Miller’s cross-examination. And given that this evidence rebutted Miller’s aggravating 4 Section 1138 provides as follows: “After the jury have retired for deliberation,if there be any disagreement between them asto the testimony,or if they desire to be informed on any point of law arising in the case, they must require the officer to conduct them into court. Upon being broughtinto court, the information required must be given in the presenceof, or after notice to, the prosecuting attorney, and the defendantor his counsel, or after they have been called.” 203 testimony about Rices forcing him to committhe crime, this evidence wasplainly important to the jury’s assessmentof the aggravating evidence. Pursuant to the above authorities, the trial court’s decision to answer the jury’s question without consulting defense counsel-- or even notifying him -- wasa plain violation of Mr. Rices’s state and federal constitutional rights to counselat a critical stage of the proceeding,his right to due processandhis rights under Section 1138. Error has occurred. 2. The error requires reversal without a showing of prejudice, but even if harmless error analysis is applied, reversal is required here given the importance of the evidence. In 1967, the United States Supreme Court set forth a general standard to be applied in assessing prejudice from constitutional errors which occurat a criminal trial. Under this standard, when a federal constitutional error occurred attrial, the state has the burden of proving the error harmless beyond a reasonable doubt. (See Chapman v. California (1967) 386 U.S.18, 24.) For many years after Chapman,courts evaluating violations of the constitutional right to counsel -- including both this Court and the United States Supreme Court -- assumedthat the general standard of prejudice set forth in Chapman applied to such violations. Thus, in People v. Hogan, supra, this Court held that where a jury asked to 204 see certain exhibits during deliberation, and the trial court answered the jury without ever notifying or consulting with defense counsel, defendant’s right to counsel was violated and the Chapmanstandard appliedto the error. (31 Cal.3d at p. 850.) In Rushen v. Spain (1983) 464 U.S. 114, the Supreme Court made the same assumption in a per curiam opinion, holding that a trial court’s ex parte communication with a jury was to be evaluated under the Chapmanstandard. (464 U.S.at pp. 117-118.) Oneyear after Rushen, however, the Supreme Court decided two cases which for the first time directly addressed the question of what standard of prejudice to apply in cases where a defendantalleges that his lawyer provided ineffective assistance of counsel: Strickland v. Washington, supra, 466 U.S. 668 and United States v. Cronic, supra, 466 U.S. 648. In Strickland, the Supreme Court recognized that defense counselin a criminal case can makeanerror-- or a series of errors -- and thereby“fail [] to render ‘adequate legal assistance’” in violation of the Sixth Amendment. (/d. at p. 686.) In contrast to the Chapman standard of prejudice applied to other federal constitutional violations, however, Strickland held that burden would notshift to the state to prove the error harmless beyond a reasonable doubt. Instead, even though this was a constitutional claim, the burden would remain with the defendant to prove any error by counsel was prejudicial by establishing “that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” 205 (Strickland v. Washington, supra, 466 U.S.at p. 694.) _ In Cronic, the Court recognized three situations in which the defendant would not have to show Strickland prejudice to obtain relief. Of relevance here, the Court stated that “the complete denial of counsel” would require reversal without a showing of prejudice. (466 U.S. at p. 659.) The Court was carefulto explain that this rule ofper se reversal was notlimited to the situation where the denial of counsel occurred for the entire trial; instead, “a trial is unfair if the accused is denied counselat a critical stage of his trial.” (lbid. citing Geders v. United States, supra, 425 U.S. 80 [defendant charged with drug offenses,trial court precluded defense counsel from consulting with defendant during overnight recess; held, Sixth Amendmentright to counsel violated and conviction reversed without an analysis of prejudice]; Herring v. New York, supra, 422 U.S. 853 [defendant charged with attempted robbery, waivedhisrightto a jury trial, trial court refused to allow defense counsel to make a closing argument: held, Sixth Amendment right to counsel violated and conviction reversed without an analysis of prejudice].) In Bell v. Cone, supra, 535 U.S. at pp. 695-696 the Supreme Court reviewed Cronic and recognized that per se reversal was required “where the accused is denied the presence of counsel at ‘a critical stage’ .. . a phrase we used . . . to denote a step of the criminal proceeding. . . that held significant consequencesfor the accused.” Similarly, in Mickens v. Taylor, supra, 535 U.S. at p. 166 the Supreme Court stated that “[w]e have spared the 206 defendantthe need of showing probable effect upon the outcome, and have simply presumed such effect, where assistance of counsel has been denied entirely or during a critical stage of the proceeding.” In the years since Cronic, this Court has recognized that in light of Cronic, a denial of the right to counselat a critical stage of the proceedings is presumedto be prejudicial. (See, e.g., People v. Streeter (2012) 54 Cal.4th 205, 232; People v. Benavides (2005) 35 Cal.4th 69, 86.) Andat least one other court has recognized that Cronic may have specific application in connection with the complete denial of counselfor a trial court’s ex parte communication with jurors on an important subject. (See People v. Bradford, supra, 154 Cal.App.4th 1390.) In Bradford, the appellate court addressed this very issue. The court recognized that prior to 1984 (andprior to Cronic), courts applied Chapmantothis type oferror. (154 Cal.App.4th at p. 1417.) Citing Cronic, the court went on to note “[h]Jowever, there is authority that suggests that the deprivation of the right to counselata critical stage of the proceedings is cause for automatic reversal.” (154 Cal.App.4th at p. 1417.) Ultimately, Bradford did not decide which standard to apply because the error there was prejudicial even under Chapman. (Ibid. Cf. Delgado v. Rice (S.D.Cal. 1999) 67 F.Supp.2d 1148, 1162 n.1 {recognizing that although Rushen applied the Chapmantest to 207 this type of error in 1983 (one year before Cronic), the appropriate standard of prejudice was an open question in light of subsequent authority regarding structural errors].) In sum, this case involves a total deprivation ofMr. Rices’s right to counsel at a critical stage of the proceedings. In light of the recognition in Cronic, Bell and Mickens that no prejudice analysis is required where a defendant is completely denied the presence of counselat a critical stage, no analysis of prejudice is required and the penalty phase must be reversed. In making this argument, Mr. Rices is aware that in several cases after Cronic, this Court has continued to apply the Chapman standard of prejudice even when defendant wastotally deprived of his right to counselfor this critical stage involving a court’s responsesto the jury. (See, e.g., People v. Jennings, supra, 53 Cal.3d at pp. 383-384; People v. Wright (1990) 52 Cal.3d 367, 403.) In each of these cases, however, the Court has cited the Supreme Court’s 1983 decision in Rushen v. Spain. But as discussed above, because the per curiam 1983 decision in Rushen precedes the Court’s 1984 decision in Cronic, as well as the subsequent decisions in Bell and Mickens,it can no longerbe relied on as valid authority on this point. In the final analysis, however, and just like the Bradford decision discussed above, 208 the Court may not need to reach this issue. Even if the Chapman standard appliesto this error, the trial court’s refusal to allow defense counsel for Mr. Rices to participate at this critical stage of the criminal trial cannot be deemed harmless. In great detail, Miller explained to both juries how Rices forced him to commit the robbery at gunpoint. (13 RT 1907-1928, 1947.) The prosecutorandtrial court both recognized this was aggravating evidence against Rices. (13 RT 1946.) The prosecutor then presented both juries with evidence undercutting this aggravating evidence -- Exhibits 65 and 65A -- which wasa letter written by Miller himself after his arrest for robbery and murder. (13 RT 1981-1982.) Of course, defense counsel did not object to these exhibits. Whenthestate rested its case against Mr. Rices, the prosecutor made clear he was “offering ali of the exhibits that have been referred to and marked... .” (16 RT 2393.) Pursuantto this plain statement, defense counsel would have understood that Exhibits 65 and 65A were being offered into evidence since both exhibits had been “referred to and marked.” This view was confirmed moments later when the trial court made clear that “[a]s to the balance of People's exhibits that may have been offered in front of both juries, I’m just going to reflect that the People are resting conditioned upon the court receiving those additional exhibits.” (16 RT 2394.) 209 Less than 30 minutes into deliberations, the jury asked to see Exhibits 65 and 65A. Hadthetrial court contacted defense counsel-- instead of formulating an answerin secret -- defense counsel could have explained that these two exhibits were (1) marked by the prosecutor and (2) shown to Miller in open court and referenced by the prosecutor during cross-examination. Defense counsel could have explained that as a consequence, these exhibits were properly considered among the “referred to and marked”exhibits the prosecutor explicitly said he was offering into evidence at page 2393 of the Reporter’s Transcript. Defense counsel could have reminded the court that counsel had not objected whenthe prosecutor offered Exhibits 65 or 65A,either at the tume they were shown to Miller during cross-examination or later when the prosecutor offered into evidence“all of the exhibits that have been referred to and marked.” Finally, defense counsel could have explained not only that the prosecution had offered them into evidence without defense objection, but that when the state rested, it was conditioned on the court receiving “the balance of People’s exhibits that may have been offered in front of both juries.” In short, defense counsel would haveasked that these exhibits be given to the jury. This is precisely what should have happened and would have permitted the jury to consider 210 evidence which obviously undercut Miller’s theory that Rices threatened to kill him unless heparticipated in the robbery.” Onthis record, the state cannot prove the trial court’s violation ofthe right to counsel harmless beyond a reasonable doubt. It resulted in the jury being precluded from considering exhibits which contained evidence directly undercutting what the prosecutor and trial court alike recognized was aggravating evidence from Miller. The jury had asked for this evidence less than 30 minutes into deliberations, so it may have been of some importance. If this evidence caused even a single juror to change his or her mind, the state would have been unable to obtain a death verdict. (Cf Wiggins v. Smith, supra, 539 U.S.at p. 537 [penalty phase error was prejudicial where absentthe error “there is a reasonable probability that at least one juror would have struck a different balance” and voted forlife].) And as discussed elsewherein this brief, in light of Jean Pierre Rices’s extremely difficult upbringing, this was certainly not a case without mitigation. Evenif the court applies a harmless error analysis to the violation of Mr. Rices’s right to counsel at all stages of the case, reversal is required here. 25, The clerk’s minutes show thatthe clerk did not place Exhibits 65 and 65Ain the jury room for deliberation because she thought they had not been introduced. (6 CT 1255.) The minutes do not explain why the clerk believed these exhibits -- which had been referred to and marked duringtrial -- were not covered by the explicit statement that the prosecutor was offering into evidence “all of the exhibits that have been referred to and marked.” (16 RT 2393.) 211 D. The Trial Court’s Ex Parte Contact With The Jury Violated Mr. Rices’s State And Federal Constitutional Rights To Presence. = For the same reasonsasjust discussed,the trial court’s refusal to notify the defense aboutthe jury’s request also violated Mr. Rices’s federal and state constitutional right to presence. The state and federal constitutional rights to presence are generally coextensive. (People v. Butler (2009) 46 Cal.4th 847, 861; People v. Harris (2008) 43 Cal.4th 1269, 1306.) The constitutional rights to presence exist when the defendant’s presence “hasa relation, reasonably substantial, to the fullness of [defendant’s] opportunity to defend against the charge.” (Snyder v. Massachusetts (1934) 291 U.S. 97, 105-106. Accord Kentucky v. Stincer (1987) 482 U.S. 730, 745 [the right to be present exists at any “stage . . . that is critical to [the] outcome” and where the defendant’s “presence would contribute to the fairness of the procedure.”]; People v. Price (1991) | Cal.4th 324, 407-408.) Here, had defendant been notified of the jury’s question, and appeared with counsel, he too might have beenable to point out to counsel -- for communication to the judge-- the importance of having the jury consider Exhibits 65 and 65A,andthe facts that (1) the state had offered this into evidence at page 2393 and (2) there was no objection from the defense. Thus, his right to presence wasviolated. 212 This Court has held that violations of the right to be present are subject to the Chapmanstandard of prejudice. (People v. Ayala (2000) 24 Cal.4th 243, 268-269.) As such, and for the identical reasons set forth in the Chapman analysis above, the presence violation also requires a new penalty phase. E. The Trial Court’s Failure To Notify Defense Counsel Of The Jury’s Question Violated The Reliability Requirements Of The Eighth Amendment. Asdiscussed above,hadthetrial court notified defense counsel aboutthe jury’s request to see Exhibits 65 and 65A,it is likely that both exhibits would have been given to the jury. Accordingly, the court’s refusal to notify defense counsel not only violated Mr.Rices’s right to counsel, his right to be present and his due process rights, but also his right to a reliable penalty phase procedure. In this regard, the Supreme Court has recognized that the death penalty is a qualitatively different punishment than any other. (See, e.g., Beck v. Alabama (1980) 447 U.S. 625, 638, n.13; Woodson v. North Carolina (1976) 428 U.S. 280, 305.) In light of the absolute finality of the death penalty, there is a “heightened needforreliability” in capital cases. (See, e.g., Caldwell v. Mississippi (1985) 472 U.S. 320, 323; Beck v. Alabama,supra, 447 U.S.at p. 638, n.13.) 213 Procedures which risk undercutting this heightened need forreliability violate the Eighth Amendment. (See, e.g., Lankford v. Idaho (1991) 500 U.S. 110, 127; Eddings vy. Oklahoma (1982) 455 U.S. 104, 118-119 (O’Connor,J., concurring); Lockett v. Ohio (1978) 438 U.S. 586; Gardner v. Florida (1977) 430 U.S. 349, 362.) The case law shows a myriad of waysthat the special reliability concerns of the Eighth Amendment can be violated in any case. For example,the reliability of a death judgment can be undercut whena state’s capital punishment schemeitself precludes a defendant from presenting mitigating evidence which could call for a sentence less than death. (Lockett v. Ohio, supra, 438 U.S. 586.) Even whereall mitigating evidence is admitted, a trial court’s refusal to instruct the jury properly on how it can considerthat mitigating evidence mayalso result in a death judgmenttoo unreliable for Eighth Amendmentpurposes. (See Penry v. Lynaugh (1989) 492 U.S. 302; Eddings v. Oklahoma, supra, 455 U.S. 104.) A prosecutor’s misleading closing argumentat the penalty phase may also undercut the reliability concernsat the heart of the Eighth Amendment. (Caldwell v. Mississippi, supra, 472 U.S. 320.) Here, the jury was deciding whether Mr. Rices would live or die. It was important for this jury to consider both the aggravating and the mitigating evidence. Exhibits 65 214 and 65A were both relevant precisely because they undercut someof the aggravating evidence presented by Miller in his testimony. Telling the jury that “these exhibits were not admitted into evidence in Mr. Rices’ trial” precluded the jury from considering this mitigating evidence. After all, the court (1) told the jury that in deciding whether Mr. Rices shouldlive or die it could only consider the “evidence”it had been presented and (2) defined “evidence”as including only those “exhibits admitted into evidence ....” (6 CT 1216.) Thus, telling the jury that Exhibits 65 and 65A had not been admitted effectively told jurors they could not consider this evidence. And as the case law discussed above shows, the Supreme Court has repeatedly recognizedthat the special reliability concerns of the Eighth Amendmentare implicated whena capital sentenceris precluded from considering mitigating evidence. Forthis reason,the trial court’s conduct in this case violated not only the state and federal right to counsel, but the Eighth Amendmentas well. Noseparate harmless error analysis is required. For the same reasonsas discussed in connection with the Chapmananalysis above,the state will be unable to prove the trial 215 court’s violation of Mr. Rices’s Eight Amendmentrights harmless beyond a reasonable doubt. A new penalty phaseis required.” 6 The Eighth Amendment componentofthis claim stands independently of whether the Court find that Mr. Rices’s rights to counsel, presence or due process have been violated. The Court has repeatedly noted that the special reliability concernsof the Eighth Amendment maybe violated by procedures even when those same procedures do not violate other constitutional provisions. (See, e.g., Beck v. Alabama, supra, 447 U.S. at pp. 636-638 [in a capital case, Eighth Amendmentneedfor reliability requires instructions on lesser included offenses even though Fifth Amendment DueProcess Clause may not require such instructions]. See Sawyer v. Smith (1990) 497 U.S. 227, 235 [Court distinguishes between the protections of the Due Process Clause and the “more particular guarantees of sentencingreliability based on the Eighth Amendment.”}.) Compare Furman v. Georgia (1972) 408 U.S. 238 [standardless capital sentencing violates the Eighth Amendment] with McGautha v. California (1971) 402 U.S. 183 [standardless capital sentencing does not violate Due Process].) 216 XU. THE PROSECUTOR VIOLATED THE EIGHTH AMENDMENT IN ASKING THE JURY TO SENTENCE MR. RICES TO DIEBASED, IN PART,ON PRIOR FELONY CONVICTIONS AND CRIMINAL CONDUCT COMMITTED WHEN MR. RICES WASA CHILD. A. Introduction. Penal Code section 190.3, subdivision (b) provides that at a capital penalty phase, the state is authorized to introduce evidence showing “the presence . . . of criminal activity by the defendant which involved the use or attempted use of force or violence. . .” The purposeof permitting this evidence is to allow the penalty phase jury to assess the “character and history of a defendant” and thereby determine the appropriate punishment. (People v. Tully (2012) 54 Cal.4th 952, 1029.) Penal Codesection 190.3, subdivision (c) provides that at a capital penalty phase, the state is authorized to introduce evidence showing “[t]he presence. . . of any prior felony conviction.” The purpose of permitting this evidence “is to show the capital offense was the culmination of the defendant’s habitual criminality -- that it was undeterred by the community’s previous criminal sanctions.” (People v. Malone (1988) 47 Cal.3d 1, 46. Accord People v. Gurule (2002) 28 Cal.4th 557, 636.) Of course, for prior conviction evidence under section 190.3(c) to serve the 217 identified purpose it does not matterif the prior conviction was suffered when the defendant when he was a child or an adult. In either case, the evidence shows he was undeterred by the prior sanctions. Accordingly, there has been no bar on the use of juvenile convictions under subdivision (c). (See, e.g., People v. Pride (1992) 3 Cal.4th 195, 256-257.) Similarly, for prior criminal acts evidence undersection 190.3(b) to serve the identified purpose it does not matter if the prior acts were committed when the defendant wasa child or an adult. (See, e.g., People v. Cox (1991) 53 Cal.3d 618, 689.) The prosecutor here took full advantage of these rules, introducing one prior conviction which Mr. Rices suffered as a juvenile, as well as two incidents of prior criminal conduct Mr. Rices committed when he wasa juvenile. (15 RT 2307 [conviction on August 11, 1999]; 15 RT 2197-2201 [prior conduct of February 10, 1999]; 15 RT 2202-2205 [same]; 15 RT 2208-2213 [prior conduct of March 7, 1999]; 15 RT 2214-2220 [same].) The court instructed the jury on this evidence. (19 RT 2735-2736, 2741.) And the prosecutor urged the jury to rely on this evidence in sentencing Mr. Rices to die. (19 RT 2748-2749.) Asdiscussed more fully below,the rules permitting the use ofjuvenile convictions 21 Defendant was born on August 22, 1981. (6 CT 1337.) Thus, he turned 18 on August 22, 1999. Convictions and prior conduct which occurred before August 22, 1999 occurred whenhe wasstill a juvenile. 218 and uncharged conductin aggravation of a capital sentence must changein lightof a trio of cases from the United States Supreme Court addressing application of the Eighth Amendmentto harsh penalties imposed on children: Roper v. Simmons(2005) 543 U.S. 551, Graham v. Florida (2010) ___ U.S. , 130 S.Ct. 2011 and Miller v. Alabama (2012)___—sU.S. ___, 132. S.Ct. 2455. In each case, the Court has recognized that there are substantial differences between children and adults, differences which preclude applying traditional concepts of deterrence and punishment to juveniles. In light of this recognition, the prosecutor’s reliance on Mr. Rices’s criminal conduct as a juvenile violated the Eighth Amendment and a new penalty phase is required. B. Evolving Standards Of Decency, And Recent Supreme Court Authority, Preclude The State From Asking A Jury To Sentence A Defendant To Die Based On Acts He Committed When He Was A Child. In Roperv. Simmons, supra, 543 U.S. 551, the Court held that the death penalty could not be imposed on defendants who were underthe age of eighteen at the time of the crime. In reaching this result, the Court noted that as compared to adults, teenagers have “fa] lack of maturity and an underdeveloped sense of responsibility”; they “are more vulnerable or susceptible to negative influences and outside pressures”; and their character“is not as well formed.” (Jd. at pp. 569-70.) Based on these basic differences, the Court concludedthat “it is unclear whether the death penalty has a significant or even 219 measurable deterrent effect on juveniles ....” (/d. at p. 571.) This was “of special concern”to the Court precisely because “the same characteristics that render juveniles less culpable than adults suggest as well the juveniles will be less susceptible to deterrence.” ([bid.) The Court noted what every parent knows-- “the likelihood that the teenage offender has made. . . [a] cost-benefit analysis . . . is so remoteas to be virtually nonexistent.” (Id. at p. 572.) In Graham v. Florida, supra, 130 S. Ct. 2011, the Court again recognized that traditional concepts of deterrence do not apply to juveniles. There, the Court addressed the question of whether juveniles could receivea life without parole term for a non- homicide offense. The Court cited scientific studies of adolescent brain structure and functioning which again confirmed the daily experience of parents everywherethat teenagersarestill undeveloped personalities, labile and situation-dependent, impulse-driven, peer-sensitive, and largely lacking in the mechanismsof self-control which almostall of them will gain later in life. Because “their characters are ‘not as well formed,’”” the Court found that “it would be misguided to equate the failings of a minor with those of an adult.” (Graham v. Florida, supra, 130 S. Ct. at p. 2026.) The Court held that deterrence did not justify a life without parole sentence because-- in contrast to adults -- “juveniles' ‘lack of maturity and underdeveloped sense of responsibility . . . often result in impetuousandill-considered actions and decisions ... .’” (Id. at p. 2028.) 220 Finally, in Miller v. Alabama (2012) 132 S.Ct. 2455 the Court again addressed the conceptof deterrence in connection with juveniles. There, the Supreme Court addressed the question of whethera life without parole term imposed on a juvenile constituted cruel and unusual punishment even for a homicide. Ultimately, the Court “{did] not consider Jackson’s and Miller’s alternative argument that the Eighth Amendmentrequires a categorical bar on life without parole for juveniles ....” (132 S.Ct. at p. 2469.) Instead, the Court reversed the life without parole terms imposedin both of the cases before it by finding that the schemes under which they were imposed were improperly mandatory. (Id. at p. 2460.) But in reaching this more limited decision, it is important to note that the Court fully embracedthe view of deterrence expressed in both Roper and Graham. Asit had in both Roper and Graham,the Court again recognized that because ofthe the “immaturity, recklessness and impetuosity” with which juveniles act, they are less likely than adult to consider consequences and,as such, deterrence cannotjustify imposing a life with parole term on a juvenile. (Jd. at p. 2465.) The Court’s rationale in these cases directly undercuts the use ofjuvenile convictions and conductto aggravate penalty in a capital case. As noted above,the reason prior felony convictions are permitted in aggravation at a penalty phase is to show 221 “the capital offense was. . . undeterred by the community's previous criminal sanctions.” (People v. Malone, supra, 47 Cal.3d at p. 46.) This is entirely sensible when the prior conviction was committed by an adult. But the opinions in Roper, Graham and Miller establish that juveniles and adults should not be treated the same whenit comes to assumptions aboutdeterrence. To the contrary,in light of what the Supreme Court has said regarding children and deterrence, there are two reasonsthe traditional rationale for admission of prior felony convictions at a capital penalty phase makes little sense when applied to juvenile convictions. First, in connection with a juvenile conviction, the decision to commit the prior crime itself was made by a juvenile who wasnotdeterred by the criminal sanction applicable to that crime precisely because of a “lack of maturity and underdeveloped sense of responsibility.” (Graham v. Florida, supra, 130 S. Ct. at p. 2028.) Second, Roper, Graham and Miller all recognize that expecting deterrence from a conviction imposed on a juvenile -- as the state may legitimately expect from an adult -- is a “misguided [attempt] to equate the failings of a minor with those of an adult.” (Graham v. Florida, supra, 130 S. Ct. at p. 2026.) Similarly, prior criminal conduct is admitted at the penalty phase to permit an assessmentof the “character and history of a defendant to determine” the appropriate 222 punishment. (People v. Tully, supra, 54 Cal.4th at p. 1029.) Given the Supreme Court’s recognition that becauseoftheir brain structure, teenagers show “[a] lack of maturity and an underdevelopedsense of responsibility,” “are more vulnerable or susceptible to negative influences andoutside pressures”and their character “is not as well formed” (Roper, supra, 543 U.S.at pp. 569-570), it seems both unfair and unreliable to permit decisions made and conducttaken as a juvenile to so heavily impact a jury’s subsequent decision as whether defendant should live or die. To treat adults and juveniles the same in this instance-- that is, to treat prior conduct committed as a juvenile the sameasprior conduct committed as an adult for purposes of a capital sentencing phase -- runs square into the Supreme Court’s admonition that “it would be misguided to equate the failings of a minor with those of an adult.” (Grahamv. Florida, supra, 130 S. Ct. at p. 2026.) It is true, of course, that the current crime in this case was committed by defendant when he wasan adult. But that does not change the equation in any constitutionally significant way. Aggravating the capital murderhere by relying on the fact that when he was a child, defendant was not deterred from committing crimes by the criminal sanction available for that crime, or by conviction for those crimes, implicates the precise concerns about ignoring the impact of youth on the “lack of maturity and. . . underdeveloped sense of responsibility” which juveniles possess and which renders them “less culpable than adults . . . [and] less susceptible to deterrence.” (Roper v. Simmons, supra, 543 USS.at p. 223 569-572.) In assessing an Eighth Amendmentchallengeto a practice, the Supreme Court “looks beyondhistorical conceptionsto ‘the evolving standards of decency that mark the progress of a maturing society.’”” (Graham v. Florida, supra, 130 S.Ct. at p. 2021. Accord Roperv. Simmons, supra, 543 US. at p. 561; Trop v. Dulles (1958) 356 U.S.86, 101.) In making this assessment, a reviewing court must look to “objective indicia of society’s standards, as expressed in legislative enactments ....” (Graham v. F.lorida, supra, 130 S.Ct. at p. 2022. Accord Roper v. Simmons, supra, 543 U.S.at p. 563.) With these objective indicia in mind, the court mustthen bringits independent judgmentto bear on the constitutional question. (Graham v. Florida, supra, 130 S.Ct.at p. 2022; Roperv. Simmons, supra, 543 U.S.at p. 563.) The objective criteria consistently point in the samedirection. Legislation from around the country establishes a clear nationwide consensus recognizing that because of their more limited decision-making capabilities in weighing future consequence, juveniles mustbe protected from making decisions that can adversely impactthe rest of their life. There are many examples. As the Supreme Court noted in Roperitself, “[iJn recognition of the comparative immaturity and irresponsibility ofjuveniles, almost every 224 State prohibits those under 18 years of age from voting, serving on juries, or marrying withoutparental consent.” (Roper v. Simmons, supra, 543 U.S.at p. 569.) Every state precludesjuveniles underthe age of 18 from drinking alcohol. (See,e.g., Lorillard Tobacco Co.v. Reilly (2001) 533 U.S. 525, 589 [noting that “every state prohibits the sale of alcohol to those under 21 ....”].) Every state precludes juveniles from using tobacco products. (See Clay v. American Tobacco Co. (S.D. Ill. 1999) 188 F.R.D. 483, 486 [noting that every state prohibits sale of tobacco products to minors].) Similarly, the vast majority of states do not even permit juveniles under 18 to decide whetherto get a tattoo.”® There is a basic, commonstrand-- a national consensus-- reflected by these consistentlegislative judgments. Legislatures throughout the country recognize that as a 28 See Ala. Code § 22-17A-2; Alaska Stat. Ann. §08.13.217; Ariz. Rev. Stat. Ann. § 13-3721; Ark. Stat. Ann. § 5-27-228; Cal. Penal Code § 653; Col. Rev. Stat. Ann. § 25-4-2103; Conn. Gen.Stat. § 19a-92g; Del. Code Ann. Title 11, Ch 5 § 1114(a); Fla. Stat. § 877.04; Ga. Code §16-5-71; Hawaii Rev. Stat. § 321-379; Idaho Code § 18-1523; Ill. Pub. Act 094-0684; Ind. Code Ann. § 35-42-2-7; Iowa Code § 135.37; Kan. Stat. Ann. § 65-1953; Ky. Rev. Stat. § 211.760; La. Rev. Stat. Ann. § 14:93.2; Me. Rev. Stat. Ann. Title 32, Ch. 63 § 4203; Mich. Comp. Laws Ann.§ 333.13102; Minn.Stat. § 609.2246; Miss. Laws§ 73-61-1; Mo. Rev.Stat. § 324.520; Mont. Code Ann. § 45-5-623; Neb. Rev. Stat. § Sec. 427 71-3; N.J. Stat. Ann. § 2C:40-21; N.C. Gen. Stat. § 14-400; N.D. Cent. Code § 12.1-31; Ohio Rev. Code Ann. § 3730.06; Okla. Stat. Title 21 § 842.1, 842.2; Pa. Cons.Stat. Title 18 § 6311; RI General Laws§ 11-9-15; S.C. Code Ann.§ 44-34-60; S.D. Codified Laws Ann. § 26-10-19; Tenn. Code Ann. § 62-38-207; Texas Health and Safety Code Ann. § 146.012; Utah Code Ann. § 76-10-2201; Vt. Stat. Ann. Title 26 § 4102; Va. Code § 18.2-371.3; Wash. Rev. Code § 26.28.085; W. Va. Code § 16-38-3; Wis. Stat. § 948.70; Wyo.Stat. § 14-3-107. 225 class, juveniles are simply not developed enough to makethe kinds of decisions which can impact the remainderoftheirlife -- such as the decision to take up smoking,to drink, to marry,or even to get a tattoo. In turn, Roper and Graham recognized that the common concerns about maturity which animated these otherwise diverse legislative enactments are a key factor in assessing the constitutionality of a practice that involves juveniles. Significantly, Roper and Graham donot stand alone in recognizing the special fragility of juveniles and the implication of this recognition in assessing the protection juveniles should be given. (See, e.g., J.D.B. v. North Carolina (2011) 131 S.Ct. 2394, 2403 [“[T]he commonlaw hasreflectedthe reality that children are not adults” and has erected safeguards to “secure them from hurting themselves by their own improvident acts.”]; Eddings v. Oklahoma (1982) 455 U.S. 104, 115-116 [“Our history is replete with laws andjudicial recognition that minors . . . generally are less mature and responsible than adults.’”].) In sum, allowingthe state to aggravate a capital sentence byrelying on actionsthe defendant took as a juvenile violates not only the principles animating the Court’s decisions in Miller, Graham, and Roper, but a national consensus recognizing that juveniles are simply not mature enough to make decisions which impactthe rest of their lives. The practice cannot be squared with the Eighth Amendment. 226 In makingthis argument Mr. Rices recognizes that this Court has rejected the argumentthat Roperitself precludes consideration of juvenile convictions in penalty phase aggravation. (See People v. Bivert (2011) 52 Cal.4th 96, 123; People v. Lee (2011) 51 Cal.4th 620, 648-649; People v. Taylor (2010) 48 Cal.4th 574, 653-654; People v. Bramit (2009) 46 Cal.4th 1221, 1239.) Although noneof these cases considered the impactof either Graham or Miller, Mr. Rices concedes that the rationale on which they reject his position is certainly broad enough to include thosecases as well. The essential rationale is expressed by this Court’s decision in People v. Bramit, supra, 46 Cal.4th at p. 1239. There the Court concludedthatreliance on the holding in Roper was“badly misplaced” because “[a]n Eighth Amendmentanalysis hinges upon whetherthere is a national consensusin this country against a particular punishment. (Roper v. Simmons, supra, 543 U.S.at pp. 562-567.. .. Defendant's challenge hereis to the admissibility of evidence, not the imposition of punishment.” Mr. Rices agreesthat the actual holdings of Roper, Graham and Miller do not control this issue. They are, after all, simply holdings about whetherthereis a national consensus againstcertain punishmentsfor juveniles -- the death penalty and life without parole. And since the claim here is that evidence ofjuvenile convictionsis not admissible, the actual holdings of Roper, Graham and Miller are properly distinguished. 227 Butthe principles animating that trio of cases should not beso easily brushed aside. After all, the entire reason prior crimes evidenceis permitted undersection 190.3, subdivision (c) is that it shows the current crime was undeterredby the prior sanctions imposed on the defendant. (People v. Gurule (2002) 28 Cal.4th 557, 636; People v. Malone (1988) 47 Cal.3d 1, 46.) But Roper, Graham andMiller all recognizedthatthe concept of deterrence simply does not work the same way with children as it does with adults. (Roper v. Simmons, supra, 543 U.S.at p. 571 [noting that juveniles “will be less susceptible to deterrence]. Accord Graham v. Florida, supra, 130 S.Ct. at p. 2028; Miller v. Alabama,supra, 132 S.Ct. at p. 2465.) Each of these three cases recognizes that becauseof the differences between adults and children in connection with the impact of deterrence, they should not be treated the same wayas one another. That sameprinciple applies here, even if the narrow holdings of Roper, Graham and Miller are distinguishable. It is precisely because prior felony convictions are permitted in aggravation to show “the capital offense was undeterred by previous criminal sanctions”that the Supreme Court’s rationale in Roper, Graham and Miller applieshere. Thatrationale -- that juveniles and adults should notbe treated the same in connection with deterrence -- directly undercuts the use ofjuvenile convictions to aggravate penalty in a capital case. While it may makeperfect sense to prove that a defendant wasnot deterred from the capital crime by convictions imposed on him as an adult, Roper, 228 Graham andMiller makeclear that that same purposeis not achieved when the prior convictions were committed as a juvenile. To the contrary, the decision to committhe prior crimeitself was made bya juvenile who wasnotdeterred by the criminal sanction applicable to that crime precisely because of a “lack of maturity and underdeveloped sense of responsibility.” (Graham v. Florida, supra, 130 S.Ct. at p. 2028.) And expecting deterrence from a conviction imposed on a juvenile -- as the state may legitimately expect from an adult-- is nothing but a “misguided [attempt] to equate the failings of a minor with those of an adult.” (Graham vy. Florida, supra, 130 S. Ct. at p. 2026.) Thus, while this Court has held that the narrow holding of Roper doesnotitself preclude admission ofjuvenile convictions to aggravate, the principles on which Roper, Graham and Miller were decided directly supports such a conclusion. This Court should interpret section 190.3, subdivision (c) in light of the rationale of Roper, Graham and Miller. (See United States v. Graham (6th Cir. 2010) 622 F.2d 445, 465, 469 [Merrit, J., dissenting] [relying on rationale of Graham v. Florida to reject reliance on juvenile conviction to enhance adult conviction and imposelife sentence].) 229 Cc. The Erroneous Admission Of Acts Committed When Mr. Rices Was A Child Was Not Harmless Beyond A Reasonable Doubt. Because the erroneous admission of this evidence at the penalty phase violated Mr. Rices’s Eighth Amendmentrights, reversal is required unless the state can provethe error harmless beyond a reasonable doubt. (See Chapmanv. California, supra, 386 U.S.at p. 24 [federal constitutional errors require reversal unless the state can proven the error harmless beyond a reasonable doubt].) For many of the same reasons discussed above, the state will be unable to carry its burden here. Although the state did present substantial aggravating evidencein this case, the fact of the matter is that (1) defendant here acknowledged wrongdoingat an early stage of the proceedings by pleading guilty and (2) there wassignificant mitigation evidence presented regarding defendant’s childhood. Considered either alone, or in conjunction with the trial court’s errors in refusing to allow mitigating evidence regarding the impact of an execution on defendant’s family, and the court’s incorrect ruling permitting future dangerousnessto be used as a non-statutory aggravating factor, there is at least a reasonable possibility that in the absence oferror at least one juror could reasonably have voted for life. A new penalty phaseis therefore required. (See Wiggins v. Smith, supra, 539 U.S.at p. 537; People v. Soojian (2010) 190 Cal.App.4th 491, 520.) 230 XIV. THE TRIAL COURT COMMITTED PREJUDICIAL ERROR IN PERMITTING THE PROSECUTOR TO RELY ON NON-STATUTORY AGGRAVATIONIN URGING THE JURY TO SENTENCEMR. RICES TO DEATH. A. The Relevant Facts. Penal Code section 190.3 authorizes the jury to considerthree categories of evidence: “the circumstancesof the crime of which the defendant was convicted in the present proceeding|[,] .. . the presence . . . of criminal activity by the defendant which involved the use or attempted use of force or violence . . . [and] the presence . . . of any prior felony conviction.” (Pen. Code § 190.3, subd. (a)-(.c).) This Court has madeclear for many years that subject areas irrelevant to these three specific aggravating factors cannotbe considered in aggravation at the penalty phase of a capitaltrial. (See, e.g., People v. Wright (1991) 52 Cal.3d 367, 425; People v. Burton (1989) 48 Cal.3d 843, 859; People v. Boyd (1985) 38 Cal.3d 762, 774.) Here, pursuant to Penal Code section 190.3, subdivision (b) the prosecutor introduced evidence showing that Mr. Rices had committed acts in prison which involved either the use of force or violence, or the threat of force or violence. (See 15 RT 2267- 2268, 2272, 2294-2295, 2320-2321.) Pursuant to section 190.3, subdivision (b) the prosecutor wasfully entitled to urge the jury to consider this evidence in the sentencing 231 calculus as a factor favoring death because of what it showed about defendant’s past. Butthe prosecutor went further. The prosecutor not only asked the jury to consider this evidence for what it showed about defendant’s past (which was fully authorized by section 190.3, subdivision (b)) but he asked the jury to consider this evidence as a factor favoring death because of what it showed about defendant’sfuture. During his closing argument, the prosecutor arguedthat this evidence showed defendant was going to be a future dangerto other prisoners andto prison staff. (19 RT 2752- 2753.) Thetrial court overruled defense counsel’s immediate objection to this argument. (19 RT 2753.) As more fully discussed below, the trial court’s ruling violated both state and federal law. More than 30 years ago,this Court held that future dangerousness wasnot an aggravating factor underthe California death penalty scheme. The court’s contrary ruling here violated both state law and federal law. A new penalty phase is required. B. Pursuant To People v. Murtishaw (1981) 29 Cal.3d 733, Evidence Of Future Dangerousness“Is Not Relevant To Any Of The [Aggravating] Factors” Listed In The California Death Penalty Scheme. Thetrial court’s ruling violated state law. As noted above, subdivisions(a), (b) 232 and (c) of section 190.3 limit a penalty phase jury to considering three categories of evidence:“the circumstancesof the crime,” “the presence . . . of criminal activity by the defendant which involvedthe use or attempted use of force or violence” and “the presence . . . of any prior felony conviction.” Under California law, the state may notrely on non-statutory aggravation -- defined as aggravation not covered by subdivisions(a), (b) or (c) -- in a capital trial. (People v. Boyd, supra, 38 Cal.3d at p. 774.) The question to be resolved in this case is whether evidence and/or argument regarding future dangerousnessis relevant to the statutory aggravating factors set forth in section 190.3. This Court specifically resolved this issue People v. Murtishaw, supra, 29 Cal.3d 733. There, the state was permitted to introduce expert testimony from a mental health expert that if sentencedto life without parole, defendant would commit violentacts in prison. This Court held that such evidence was impermissible “for two reasons.” (29 Cal.3d at p. 771.) First, the Court concluded that expert predictions of future dangerousnesswere too unreliable to permit in penalty phase proceedings. (29 Cal.3d at p. 771.) Second, and of more importance here, the Court concluded that the subject of future dangerousness was “not relevant’ to any of the aggravating factors specified by the Legislature: “The Legislature has listed specifically the factors which the jury must consider in deciding whether to impose the death penalty. The testimony of 233 Dr. Siegel [on the subject of future dangerousness] is not relevant to any of the listedfactors.” (29 Cal.3d at p. 772, emphasis added.) Several years after Murtishaw wasdecided,this Court held that matters whichare irrelevant to the factorslisted in section 190.3 -- matters known as non-statutory aggravation -- “are not entitled to any weightin the penalty determination.” (Peoplev. Boyd, supra, 38 Cal.3d at p. 773.) Prosecutors may not introduce evidence of non- statutory aggravation, nor may they argue non-statutory aggravation. (People v. Boyd, supra, 38 Cal.3d at p. 775 [evidence]; People v. Lucas (1995) 12 Cal.4th 415, 491-495 [argument].) Here,to the extent that the prosecutor introduced and relied on Mr. Rices’s prior conduct under section 190.3, subdivision (b) in asking the jury to impose death based on this prior conduct, there was no error. But whenthe prosecutor asked the jury to impose death becauseof the future dangerto prisoners andstaff, his argument on future dangerousness-- just like the future dangerousness evidence in Murtishaw was“not relevant to anyofthe listed factors.” (People v. Murtishaw, supra, 29 Cal.3d at p. 772.) In making this argument Mr. Rices is aware that on a numberof occasionsthis Court hasheld that although expert testimony of future dangerousness may not be admitted under Murtishaw, prosecutors are nevertheless free to raise the issue of future 234 dangerousnessin closing argument. (See, e.g., People v. Ervine (2009) 47 Cal.4th 745, 797; People v. Payton (1992) 3 Cal.4th 1050, 1063-1064; People v. Hayes (1990) 52 Cal.3d 577, 636; People v. Poggi (1988) 45 Cal.3d 306, 337; People v. Miranda (1987) 44 Cal.3d 57, 111.) At their root, all of these cases either cite this Court’s plurality decision in People v. Davenport (1985) 41 Cal.3d 247 or cite cases which cite cases whichultimately rely on Davenport. As a consequence, in evaluating Mr. Rices’s claim here, it becomes important to examine Davenport. In Davenport, the defendant was charged with capital murder. At his penalty phase, the prosecutor argued that defendant would be dangerousin prison if sentenced to life without parole. (41 Cal.3d at p. 277.) On appeal, defendant contendedthis violated Murtishaw. (41 Cal.3d at p. 288.) Three justices of the Court addressedthis issue, distinguishing Murtishaw by noting that it was based on the unreliable and extremely prejudicial nature of expert testimony regarding future dangerousness. (41 Cal.3d at p. 288.) They wenton to note that argument on future dangerousnessdid notviolate the federal constitution. (41 Cal.3d at p. 288.) Davenport’s observation about federal law was accurate, but has nothing to do with the state law componentof the claim. And as the above discussion of Murtishaw shows,the Davenport plurality’s description of Murtishaw’s state-law holding was 235 incomplete. As noted above, Murtishawitself gave two reasons whythe future dangerousness evidencein that case was inadmissible. The first reason -- focused on in Davenport -- was that expert evidence on the point was unreliable and extremely prejudicial. (29 Cal.3d at p. 771.) The second reason was that such evidence was simply irrelevant to any of the enumerated aggravating factors. (29 Cal.3d at p. 772.) This latter reason -- which Davenport did not referenceatall -- assumes even greater importance after Boyd, which madeclear that aggravation unrelated to one of the enumerated factors simply may not be considered. Atleast one justice of this Court has noted that Davenport’s discussion of Murtishaw was incomplete and -- as a result -- has harshly criticized that decision (Davenport). In his concurring opinion in People v. Taylor (1990) 52 Cal.3d 719, the late Justice Mosk noted the entirely separate basis for the Murtishaw opinion -- the fact that future dangerousness had “little relevance to any of the factors the jury must considerin determining whether to impose the death penalty.” Accordingly, Justice Mosk concluded that the distinction drawn by the Davenport plurality of Murtishaw was “ineffective[]” and he criticized Davenport for failing to acknowledge the rule from Boyd that non- statutory aggravation may not be considered. (52 Cal.3d at p. 752, n.1.) In light of both Murtishaw and Boyd, Justice Mosk concludedthat “future dangerousness is simply immaterial under the 1978 death penalty law.” (Ibid.) 236 As a matter of statutory construction, and fidelity to Murtishaw, Justice Mosk was correct. Taken together, Murtishaw and Boyd compel a conclusion that under the California death penalty scheme, the subject of future dangerousness is immaterial as an aggravating factor. It does not matter in what form the evidence or argumentis presented; in any form such evidence or argumentsimply doesnotrelate to the specific statutory aggravating factors California juries are permitted to consider. Asnoted above, Mr. Rices recognizes that in reliance on the plurality decision in Davenport, this Court has rejected similar argument on a number of occasions. And the concept of stare decisis certainly supports following these decisions even though, as Justice Mosk concluded, they are inconsistent with both Murtishaw and Boyd. Butas the United States Supreme Court has noted in this exact context on many occasions, “[a]lthough the doctrine of stare decisis is of fundamental importanceto the rule of law, our precedents are not sacrosanct.” (Ring v. Arizona (2002) 536 U.S. 584, 609. Accord Patterson v. McLean Credit Union (1989) 491 U.S. 164, 172; Welch v. Texas Dept. ofHighways and Public Transp. (1987) 483 U.S. 468, 494.) Prior decisions should be overruled “where the necessity and propriety of doing so has been established.” (Patterson, supra, 491 U.S.at p. 172.) This Court has agreed, noting that “[a]lthough the doctrine [of stare decisis] does indeed serve important values, it nevertheless should not 237 shield court-created error from correction.” (People v. Cuevas (1995) 12 Cal.4th 252, 269. Accord People v. Latimer (1993) 5 Cal.4th 1203, 1212-1213; Moradi—Shalalv. Fireman's Fund Ins. Companies (1988) 46 Cal.3d 287, 296.) Here,it is time to either reconsider Davenport and its progeny or reconsider Murtishaw and Boyd. As Justice Mosk noted,the twolines of authority cannotrationally be reconciled; the Davenport result “does not acknowledge” Boyd and ignores the relevancy holding of Murtishaw. For many of the same reasons as discussed above,the error requires a new penalty phase. This Court has stated that in determining if a new penalty phase is required due to the admission of aggravating factors unauthorized by state law, the question is whether there is a reasonable possibility of a different result absent the error. (See, e.g., People v. Brown (1988) 46 Cal.3d 432, 449.) In fact, however, because Mr. Rices had state created right to a penalty phase free from non-statutory aggravation, the plain violation of this right also trampled his federal Fifth and Fourteenth Amendment Due Processrights. (See Hicks v. Oklahoma (1980) 447 U.S. 343, 346 [defendanthad a state created right toa - jury determination of the appropriate sentence,trial court violated this right; held, violation of state created right not only violated state law, but defendant's federal constitutional due processrights as well].) Moreover, since reliance on non-statutory 238 aggravation can also impactthe reliability of the sentencing proceeding, the admission of such evidencehere also violated Mr. Rices’s Eighth Amendmentrightto reliable proceduresat sentencing. Here, undereither standard a new penalty phase is required. As discussed above, although the state did present aggravating evidencein this case, the fact of the matteris that not only did defendant acknowledge wrongdoingat an early stage of the proceedings by pleading guilty, but there was significant mitigation evidence presented regarding defendant’s childhood. Onthis record there is at least a reasonable possibility that in the absence of a reference to future dangerousness, at least one juror could reasonably have voted for life. A new penalty phase is therefore required. (See Wiggins v. Smith, supra, 539 U.S. at p. 537; People v. Soojian, supra, 190 Cal.App.4th at p. 520.) 239 XV. THE TRIAL COURT VIOLATED THE EIGHTH AMENDMENT IN PRECLUDING DEFENSE COUNSEL FROM ASKING THE JURY TO CONSIDER THE IMPACT OF AN EXECUTION ON THE DEFENDANT’S FAMILY. A. The RelevantFacts. In Payne v. Tennessee (1991) 501 U.S. 808 the Supreme Court recognized that “evidence about. . . the impact of [a] murder on the victim’s family is relevant to the jury’s decision as to whetheror not the death penalty should be imposed.” (/d. at p. 826.) A major premise of Payne’s rationale was that the sentencing phase ofa capital trial requires an even balance between the evidence available to the defendant and that available to the state. (501 U.S.at pp. 820-826.) Defense counsel sought to give voice to this premise. At the time of trial, Mr. Rices had a young son named Demu. (17 RT 2538.) Mr. Rices’s father appeared as a mitigation witness, as did his aunt, his maternal uncle, his grandfather, his grandmother and his great uncle. (17 RT 2447, 2461, 2500, 2514, 2517, 2536.) During the mitigation testimony of Gloria Brook (Mr. Rices’s grandmother), defense counsel asked her “what the impact would be on Jean Pierre’s family if he was to be executed?” (16 RT 2538.) Thetrial court sustained the prosecution’s immediate objection. (16 RT 2538-2539.) 240 At the subsequentinstructional conference, defense counsel asked the court to instruct with standard CALCRIM instruction 763. The last sentence of that requested instruction reads as follows: “LYJou mayconsider evidence about the impact the defendant's execution would haveon (his/ her) family if that evidence demonstrates some positive quality of the defendant's background or character.” Having successfully objected to evidence of execution impact, the prosecutor opposedprovision ofthis instruction because “we just don’t believe there’s been any of that.” (18 RT 2693.) Defense counsel contended that there was demeanor evidence from numerous family members which would support the instruction. (18 RT 2693.) Thetrial court refused to provide the instruction. (19 RT 2719.) In fact, the court specifically instructed the jury it was not to consider sympathy for the defendant’s family. (6 CT 1228.) As more fully discussed below,thetrial court's exclusion of execution impact evidence was improper for two reasons. First, in 1978 the electorate enacted Penal Code section 190.3 to govern admission of evidence at penalty phases in California capital cases. The language used in section 190.3 was not pulled from thin air. Instead, the critical language usedto describe the type of evidence admissible at such hearings had 241 been used in the 1977 death penalty law and, in turn, other sentencing statutes as well, and had a well-recognized meaning which permitted consideration of sentence impactin selecting an appropriate sentence. Under well-established principles of statutory construction, there is a strong presumption that the electorate intended this language to have the same meaningin section 190.3 as well. The defense wasentitled to rely on that intent, and thetrial judge had neither powernordiscretion to act as a super-legislature and preclude consideration of this fact in mitigation. Second, even if the electorate had not intended sentence impact evidence to be admissible, the Eighth Amendmentitself requires that such evidence be admissible in mitigation during the sentencing phase of a capital case. Because the trial court here completely precluded the defense from introducing execution impact evidence, and relying on this argumentin mitigation, the death sentence must be reversed. B. Because The Legislature Intended That Capital Defendants Be Permitted To Rely On The Impact Of An Execution On Their Loved Ones, TheTrial Court’s Order Forbidding Such ArgumentIn This Case Was Fundamentally Improper. The current law fixing the penalty for first degree murder-- Penal Code section 190.3 -- was enacted by voterinitiative in November of 1978. Once a defendant has been convicted of special circumstances murder, section 190.3 provides for a separate penalty phase to determine the appropriate penalty as between life without parole and death. 242 Section 190.3 goes on to describe the evidence admissible at the penalty phase: “In the proceedings on the question of penalty, evidence may be presented by both the people and the defendantas to any matter relevant to aggravation, mitigation, and sentence including, butnot limited to, the nature and circumstancesofthe present offense, any prior felony conviction or convictions whether or not such conviction or convictions involved a _ crime of violence, the presence or absence of other criminal activity by the defendant which involved the use or attempted use of force or violence or which involved the express or implied threat to use force or violence, and the defendant's character, background, history, mental condition and physical condition.” Thus, underthe plain termsofthis statute, the parties are permitted to introduce “any matter relevant”to three distinct areas: (1) aggravation, (2) mitigation and (3) sentence. Underthe express language of section 190.3,this “includ[es] but [is] not limited to” a numberofareas, including “the defendant's character, background,history, mental condition and physical condition.” As discussed below,and for two separate reasons, basic principles of statutory construction compel a conclusion that the effect of a death penalty on the defendant’s family is admissible underthis section of the Penal Code. First, section 190.3 permits defendants to introduce “any matter relevant to... mitigation... .” At the time the 1978 law wasenacted, the term “mitigation” had been used in previous sentencing statutes and had been recognized to include the impact of sentence on the defendant’s family. Under 243 well accepted principles of statutory construction, the electorate is deemed to have intended “mitigation” as used in section 190.3 to have the same meaningasit had in these otherstatutes. Second, section 190.3 also permits introduction of “any matter relevantto. . sentence.” Assuming the electorate’s use of the phrase “any matter relevantto. . mitigation” wasinsufficient to authorize the use of sentence impact information, such information wasplainly admissible as a matter relevant to sentence. 1. Becausethe term “mitigation” used by the electorate in section 190.3 had a then-recognized meaning permitting consideration of the impact of a sentence on the defendant’s family, the electorate is presumed to have intended the same meaningin section 190.3. The primary goalof statutory construction is to determine the Legislature's intent and so effectuate the purpose of the law. (DuBois v. Workers' Comp. Appeals Bd. (1993) 5 Cal.4th 382, 387.) Of course, this principle applies with equal force to statutes passed by the electorate through the initiative process. (See, e.g., People v. Jones (1993) 5 Cal.4th 1142, 1146; Kaiser v. Hopkins (1936) 6 Cal.2d 537, 538.) In determining the intent behind anyparticular statute, a court looksfirst to the wordsofthe statute. (DuBois v. Workers’ Comp. Appeals Bd., supra, 5 Cal.4th at p. 387.) 244 Wherethe languageofa statute includes termsthat already have a recognized meaning in the law,“the presumption isalmost irresistible” that the terms have been used in the same way. (In re Jeanice D. (1980) 28 Cal.3d 210, 216. See Hogya v. Superior Court (1977) 75 Cal.App.3d 122, 133.) This principle too applies to legislation adopted through the initiative process. (In re Jeanice D., supra, 28 Cal.3d at p. 216.) In this case, as noted above, the statute governing admission of evidence at the penalty phaseofa capital trial was passed by the electorate in 1978. It provides that the parties may introduce evidence “as to any matter relevant to aggravation, mitigation, and ? sentence .... Significantly, the term “mitigation” as used in the 1978 statute was not new to the 1978 statute. In fact, prior to the 1978 law, the same term had been used repeatedly in sentencing statutes and court rules governing sentencing. For example,at the time the electorate voted on the 1978 law, Penal Code section 1203, subdivision (b) provided that wherea person had been convicted of a felony, the probation officer would prepare a report to “be considered either in aggravation or mitigation.” Subdivision (c)(3) of that section went on to provide that a grant of probation was appropriate if the trial court found “circumstancesin mitigation ....” Similarly, Penal Code section 1170, subdivision (b) -- which governeda trial court’s selection of sentence between upper, 245 middle and lower terms of imprisonment when probation was denied -- provided for a middle term of imprisonmentunless there were circumstancesin “aggravation or mitigation.” Thereis little dispute as to the meaning of the phrase “mitigation” in the context of these other statutes. At the time the electorate enacted section 190.3 in 1978, both section 1203 and 1170, subdivision (b) had court rules drafted to implement them. Rule of Court 414 set forth “criteria affecting probation,” designed to implementthe inquiry into aggravation and mitigation mandated by section 1203. Rule 414 provided that in deciding if there was mitigation for purposes of whether to grant probation, the court was required to consider a numberof factors, including the impact of the sentence “on the defendantand his or her dependents.” Courts have long relied on this mitigating factor in determining an appropriate sentence. (See, e.g., People v. Superior Court (Du) (1992) 5 Cal.App.4th 822, 834 and n.15.) Similarly, Rules of Court 421 and 423 set forth aggravating and mitigating factors designed to implementthe inquiry into aggravation and mitigation mandated by section 1170. The advisory committee note to Rule 421 madeclear that “the scope of ‘circumstances in aggravation or mitigation’ under section 1170(b) is . . . coextensive with the scope of inquiry underthe similar phrase in section 1203.” As this note shows, 246 aggravation and mitigation have the same meaning under both section 1203 and 1170. In describing the type of evidence admissible at a penalty phase trial, the 1978 electorate used the very same term that was used in sections 1203 and 1170. As noted above,at the sentencing phase of a capital trial, section 190.3 permits the admission of “any matter relevant to... mitigation... .” Pursuantto the principles of statutory construction discussed above,“the presumption is almostirresistible” that the phrase “mitigation” as used in section 190.3 was intended to have the same meaningas the identical term had in sections 1203 and 1170. (See In re Jeanice D., supra, 28 Cal.3d at p. 216.) Indeed,at least one court has recognized that “the mitigating and aggravating circumstancesset forth in the determinate sentencing guidelines are also proper criteria” in selecting a sentence undersection 190.3. (People v. Guinn (1994) 28 Cal.App.4th 1130, 1149.) Because the term “mitigation” in sections 1203 and 1170 included the impact of a sentence “on the defendant and his or her dependents,”it should be given the same meaning in section 190.3. Many California courts have construed section 190.3 in this exact way. (See, e.g., People v. Weaver (2001) 26 Cal.4th 876, 986 [jury told it could consider in mitigation “sympathyor pity for the defendantor his family”]; People v. Osband (1996) 13 Cal.4th 622, 705 [jury told it could considerin mitigation “the likely effect of a death sentence on 247 [defendant’s] family, loved ones andfriends.”}; People v. Mickle (1991) 54 Cal.3d 140, 194[trial court properly admitted evidence of impact of execution on defendant’s family and friends].) Mr. Rices was entitled to the that same construction here. To be sure, Mr. Rices recognizes that in People v. Ochoa (1999) 19 Cal.4th 353, this Court held that neither the Due Process Clauses of the federal andstate constitutions, nor the Eighth Amendment, required a capital sentencer to consider in mitigation the impact of an execution on the defendant’s family. (19 Cal.4th at pp. 454-456. Accord People v. Smithey (1999) 20 Cal.4th 936, 999-1000 [holding there was no Eighth Amendmentviolation in telling jury that sympathy for the defendant’s family was notto be considered]; People v. Bemore (2000) 22 Cal.4th 809, 855-856 [same].) Thetrial court here relied on Ochoa. (18 RT 2694.) Butas this Court has often noted, cases are notauthority for propositions neither presented nor considered. (See, e.g., People v. Williams (2004) 34 Cal.4th 397, 405.) It is clear from both Ochoa and Bemorethat this Court was not presented with, nor did it resolve, the statutory construction argumentpresented here. As discussed above, applying well-established principles of statutory construction to section 190.3 compels a conclusionthat the electorate intended to permit defendants in capital cases the same ability that defendants in non-capital cases hadto rely on the impactof a particular 248 sentence on the defendant’s family. The trial court’s contrary ruling in this case was error.”? 2. Section 190.3’s explicit provision that a defendant can introduce “any matter relevant to . . . sentence” independently permits a defendant to rely on the impact of a death sentence on the defendant’s family. Evenif the phrase “mitigation” did not have a well-recognized meaningat the time section 190.3 was passedbythe electorate, or even if this Court were to hold that the electorate intended the term “mitigation” in section 190.3 to mean something distinct from “mitigation” in sections 1203 and 1170, the trial court’s ruling in this case would still be erroneous. That is because section 190.3 does not merely permit evidenceas to 8 In rejecting the argumentthat defendants were constitutionally entitled to rely on the impact of an execution on the defendant’s family, Ochoa noted thatstate law permitted only “an individualized assessment of the defendant’s background, record and character, and the nature of the crimes committed... .” (19 Cal.4th at p. 456.) With all due respect, that is not what section 190.3 says. Section 190.3 authorizes evidence relevant to “aggravation, mitigation and sentence including but notlimited to the nature and circumstancesof the present offense. . . and the defendant’s character, background[and] history ....” In other words, Ochoa’s observation that mitigationis limited to defense evidence regarding a defendant’s “background, record and character” ignores section 190.3's explicit provision that penalty phase evidenceis not limited to the “character, background [and] history” of the defendant. It also ignores section 190.3's explicit reference to mitigating evidence regarding the “sentence.” Underthe plain terms of section 190.3, a defendantis not limited to presenting evidence which impacts his “character, background, history, mental condition and physical condition.” 249 “aggravation” and “mitigation.” Instead, by its very terms,it broadly permits evidence “as to any matter relevant to aggravation, mitigation, and sentence ....” (Emphasis added.) In determining what the electorate intended by authorizing evidence “as to any matter relevant to . .. sentence,” it is important to note that the electorate must have intended this to mean something different from evidence relating to “aggravation” or “mitigation.” “Otherwise, the clause would be mere surplusage and serve no purpose,in direct contravention of our rules of statutory construction.” (State Farm Mut. Auto Ins. Co. v. Garamendi (2004) 32 Cal.4th 1029, 1046. Accord Williams vy. Superior Court (1993) 5 Cal.4th 337, 357 [“An interpretation that renders statutory languagea nullity is obviously to be avoided”’].) It is also important to note the breadth of the statutory language. The statute does not purport to narrowly define the type of evidence which can be presented in connection with the sentence. Instead, the statute broadly permits “any matter” relevant to the sentence. As discussed above,at the time section 190.3 was enacted, the law generally permitted consideration of sentence impact on the family members of a defendantin 250 selecting an appropriate sentence for that defendant. Assumingthat use of the phrase “any matter relevantto . . . mitigation” was not intendedto incorporate this same flexibility into section 190.3, such evidence would fall squarely within the phrase “any matter relevant to ... sentence.” After all, as the case law, statutes and court rules had recognized prior to 1978, the impact of a sentence on the defendant’s family was not only relevant to the sentence,it was afactor which court rules themselves specifically required the trial court to consider. (See Rule 414.) And, as noted above, section 190.3 goes on to state that the evidence admissible at a penalty phaseis “not limited to . . . the defendant’ s character, background [and] history.” (Section 190.3.) Moreover,in deciding the intent behindthis particular provision of section 190.3, there is another principle of construction which is relevant. Whena criminalstatute is susceptible of two reasonableinterpretations, the appellate court should ordinarily adopt that interpretation more favorable to the defendant.(See e.g., People v. Garcia (1999) 21 Cal.4th 1, 10; People v. Gardeley (1996) 14 Cal.4th 605, 622.) Here, given the background against which section 190.3 was enacted in 1978 (which required consideration as to the impact of a sentence on the defendant’s family) and the electorate’s use of the extremely broad phrase “any matter relevantto . . . sentence,”it is certainly reasonable to assume that the electorate intended to permit defendants to rely on such evidencein capital cases as well as non-capital. Indeed, as noted above, several trial 251 courts have apparently reached this very result, instructing the jury that in deciding if defendant shouldliveordie, it can consider the impact of defendant’s execution on the defendant’s family. (See, e.g., People v. Weaver, supra, 26 Cal.4th at p. 986; People v. Osband, supra, 13 Cal.4th at p. 705; People v. Mickle, supra, 54 Cal.3d at p. 194.) Here, Mr. Rices was seeking nothing more than the same right given to Mr. Weaver, Mr. Osband and Mr. Mickle in their respective capital trials.*” 30 Interpreting section 190.3 to permitsentence impact would also avoid a construction ofthe statute raising a serious constitutional question. In this regard, when a statue is susceptible of two or more interpretations, one of whichraises constitutional questions, the court should construe it in a mannerthat avoids any doubt regardingits validity. (Associationfor Retarded Citizens v. Department ofDevelopmental Services (1985) 38 Cal.3d 384, 394.) Here, in selecting an appropriate and reliable sentence in the non-capital context, California law explicitly requires the sentencer to consider the impact of a sentence on the defendant’s family. (See Rule 414.) Accepting the trial court’s approach in this case would mean that only as to capital cases is consideration of this same information in fashioning an appropriate and reliable sentence precluded. This approach is squarely contrary to the thrust of the Supreme Court's capital jurisprudence. Recognizing the qualitatively different punishment involved in a capital case, the Court has repeatedly concludedthatthe protections. afforded a capital defendant must be more rigorous than those provided non-capital defendants. (See Akev. Oklahoma (1984) 470 U.S. 68, 87 [Burger, C.J., concurring]; Eddings v. Oklahoma (1982) 455 U.S. 104, 117-18 [O’Connor, J., concurring]; Lockett v. Ohio (1978) 438 U.S. 586, 605-06.) Accepting the trial court’s approach in this case would meanthat the current California scheme adopts precisely the opposite approach, singling out capital defendants for /ess protection. As such, embracing the trial court’s interpretation of section 190.3, subdivision (b) to preclude sentence impact testimony in capital cases would raise serious equal protection concerns. Such an interpretation of section 190.3 should be avoided. 252 C. The Eighth Amendment Requires That In Cases Where TheState Is Permitted To Rely On The ImpactOf A Murder In Asking For Death, The Defendant Should Be Permitted To Rely On The Impact Of An Execution In Asking ForLife. Evenif the electorate did not intend sentence impact to be a proper consideration in the capital sentencing process, there is an independent reason such information is properly considered by the sentencer. As the Supreme Court has long noted, a state may not preclude the sentencerin a capital case from considering any relevant evidence in support of a sentence less than death. (Skipper v. South Carolina (1986) 476 U.S.1; Eddings v. Oklahoma, supra, 455 U.S.at p. 114; Lockett v. Ohio, supra, 438 U.S.at p. 604.) “[V]irtually no limits are placed on the relevant mitigating evidence a capital defendant mayintroduce ....” (Payne v. Tennessee, supra, 501 U.S.at p. 809.) Indeed,it was precisely because of the broadlatitude afforded capital defendants that the Supreme Court reversed its opposition to victim impact evidenceandheld that “evidence about. . . the impact of the murder on the victim’s family is relevant to the jury’s decision as to whetheror not the death penalty should be imposed.” (Paynev. Tennessee, supra, 501 U.S.at p. 826.) In Payne, the Court overruled Booth v. Maryland (1986) 482 U.S. 496 and held that testimony as to the impact of the murder on the victim’s surviving family was relevant and admissible. (501 U.S.at p. 826.) As noted above, the underlying premise of the majority decision in Payneis that the sentencing 253 phaseof a capital trial requires an even balance between the evidence available to the defendantandthat available to the state. (501 U.S. at pp. 820-826.) Indeed, in his concurring opinion, Justice Scalia explicitly noted that since the Eighth Amendment required the admission ofall mitigating evidence on the defendant’s behalf, it could not preclude victim impact evidence because “the Eighth Amendmentpermits parity between mitigating and aggravating factors.” (501 U’S.at p. 833.) Equally important, the Payne majority explained that the impact of the victim’s death on his surviving family members wasessential for the jury to understand the victim’s “uniquenessas an individual humanbeing.” (501 U.S. at p. 823. Accord Id. at p. 831 [O’Connor,J., concurring] and pp. 835, 837 [Souter, J., concurring].) Significantly, Payne also explained that the Court’s broad rulings requiring admission of “any mitigating evidence” were also premised on the need to ensure the jury understood the defendant as a “uniquely individual human being.” (501 U.S.at p. 822.) In other words, the Supreme Court has ruled that the impact of a victim’s death on the victim’s family is essential for the jury to understand the victim as a unique human being. It follows that the impact of the defendant’s death on his own family is equally essential for the jury to understand the defendant’s uniqueness as a human being. Indeed, the Supreme Court’s Eighth Amendmentjurisprudence has long recognized that evidence 254 showing the defendant’s uniqueness as a human being may not be excluded from a capital penalty phase. (See, e.g., Lockett v. Ohio, supra, 438 U.S. at p. 605; Eddings v. Oklahoma, supra, 455 U.S.at p. 110.) Courts throughout the country have reachedthis precise result, recognizing that a defendant’s execution impact evidenceis relevant to the sentencing decision. (See,e.g., State v. Mann (Ariz. 1997) 934 P.2d 784, 795 [noting mitigating evidence of “the effect on [defendant’s children] if he were executed}; State v. Simmons (Mo. 1997) 944 S.W.2d 165, 187 [noting mitigating evidence that defendant’s “death at the handsofthe state would injure his family”]; State v. Rhines (S.D. 1996) 548 N.W.2d 415, 446-447 [noting mitigating evidence of “the negative effect [defendant’s}] death would have on his family]; State v. Benn (Wash. 1993) 845 P.2d 289, 316 [noting mitigating evidence of “the loss to his loved ones if he were sentenced to death”]; State v. Stevens (Oregon 1994) 879 P.2d 162, 167-168 [concluding that the Supreme Court’s mandate for unfettered consideration of mitigating circumstances required consideration of the impact of an execution on the defendant’s family]; Lawrie v. State (Del. 1993) 643 A.2d 1336, 1339 [noting that defendant’s “execution would havea substantially adverse impact on his seven year-old son . . . and on [defendant’s] mother”]; Richmondv. Ricketts (D. Ariz. 1986) 640 F.Supp. 767, 792 [noting trial court’s consideration of testimonyrelating “the impactof the execution” on defendant’s family], rev’d. on other grounds, Richmondv. 255 Lewis (1992) 506 U.S. 50. Compare State v. Wessinger (La. 1999) 736 So.2d 162, 192 {rejecting defendant’s argumentthat an instruction precluded the jury from considering the impact of a death sentence on the defendant’s family].) In light of Payne v. Tennessee, supra, and these other authorities from around the country, it seems clear that the jury in this case should have been permitted to consider the impactof a potential death sentence on the defendant’s family. Payneheldthatthe impactof the victim’s death on his surviving family was relevant precisely becauseit showedthe victim’s “uniquenessas an individual human being.” (501 U:S.at p. 823.) Whatis sauce for the goose should be sauce for the gander; the impact of defendant’s death on his surviving family was a powerful way of showing defendant’s “uniqueness as an individual human being.” The articulated rationale of Payne -- that there should be parity between the type of evidence available to the state and the defendantat the sentencing phase of a capital case -- compels a conclusion that sentence impact considerations are equally relevant. And as noted above, several Californiatrial judges have reached this very conclusion, permitting the jury to consider sentence impact evidence in mitigation. (See, e.g., People v. Weaver, supra, 26 Cal.4th at p. 986; People v. Osband, supra, 13 Cal.4th at p. 705; People v. Mickle, supra, 54 Cal.3d at p. 194.) 256 Mr. Rices recognizes that this Court has on several occasionsrejected arguments that the federal constitution required consideration of sentence impact. (See, e.g., People v. Ochoa, supra, 19 CalAth at p. 454-456; People v. Smithey, supra, 20 Cal.4th at pp. 999-1000; People v. Bemore, supra, 22 Cal.4th at pp. 855-856.) Of course, as also noted above, because these cases did not consider the statutory construction arguments made above, they do not control the state law aspects of this case. But even in connection with the Eighth Amendmentargument, these casesare not controlling. Thetrials in both Ochoa and Bemore occurred before Payne v. Tennessee had overruled Booth v. Maryland. (People v. Ochoa, supra, 19 Cal.4th at p. 873, n.21; People v. Bemore, supra, 22 Cal.4th at p. 455, n.9.) Thus, it was not possible for the juries in those cases to consider “sympathy forthe victim or his family.” (19 Cal.4th at p. 873, n.21.) As a consequence, the parity concerns of Payne -- which are implicated when the law permits victim impact evidence but precludes sentence impact evidence -- were plainly not implicated in those cases.” Butjust as plainly, these parity concerns are implicated in this case. Here, 3 The text of Smithey does not reveal whether it too was a pre-Paynetrial. An examination of the record in Smithey showsthat the jury returned a verdict of death on June 22, 1989. (People v. Smithey, No. S011206, CT 1117-1118, 1120, 1150.) Payne was decided on June 27, 1991. Thus, Smithey too was a pre-Paynecase andthe parity concerns of Payne were not present. 257 pursuant to Payne the prosecutor wasfully entitled to introduce victim impacttestimony. And assuming Payne’s concern with parity between the defense andthestate is to mean anything atall, in cases where victim impact evidence is admissible to show the victim as a unique humanbeing, sentence impact evidence should be equally admissible to show defendant’s uniqueness as a human being. In addition, not only did thetrials in Ochoa, Bemore and Smithey pre-date Payne, but the appellate opinionsin thosecasesall pre-dated a series of United States Supreme Court cases emphasizing the “low threshold for relevance” imposed by the Eighth Amendment. (Smith v. Texas (2004) 543 U.S. 37, 44; Tennard v. Dretke (2004) 542 U.S. 274, 287.) As those cases recognize, the Eighth Amendmentdoesnotpermit a state to exclude evidence which “might serve as a basis for a sentence less than death.” (Tennard v. Dretke, supra, 542 U.S. at p. 287.) So long as a “fact-finder could reasonably deem”the evidence to have mitigating value, a state may notpreclude the defendant from presenting that evidence. (Smith v. Texas, supra, 543 U.S.at p. 44.) Execution impact evidenceis plainly relevant under Smith and Tennard. As the Supreme Court has concluded, victim impact evidenceis relevant because it shows the “uniqueness”of the victim. For the very same reasons, execution impact evidenceis relevant because it shows the uniqueness of the defendant. This evidencesatisfies the 258 “low threshold for relevance” precisely because a juror deciding whether Mr. Rices shouldlive or die “could reasonably deem”the evidence to have mitigating value. Ochoa, Bemore and Smithey -- which wereall decided prior to Smith and Tennard -- do not control this case.*” D. The Trial Court Exclusion Of Evidence And Argument About The Impact Of An Execution On Mr. Rices’s Family Requires A New Penalty Phase. Capital defendants havea constitutionalright to present to the sentencer any mitigating evidence demonstrating the appropriateness of a penalty less than death. (Skipper v. South Carolina, supra, 476 U.S.at p. 5; Lockett v. Ohio, supra, 438 U.S.atp. 604.) They have a corollary right to have the sentencer consider the mitigating evidence underinstructions which permit the sentencer to give a reasoned, moral response to the mitigating evidence. (Penry v. Lynaugh (1989) 492 U.S. 302, 319-320; Eddingsv. Oklahoma,supra, 455 U.S. at pp. 113-114; Lockett v. Ohio, supra, 438 U.S.at p. 605.) 32 Mr. Rices recognizes that the Attorney General will certainly take a contrary position here. Yet it is worth noting that in asking the Supreme Court to overrule Booth and admit victim impacttestimony, the Attorney General formally took the position that “[i]f the death penalty is constitutional, as the Court has repeatedly held, it cannot be unconstitutional to permit the pros and consin theparticular case to be heard.” (Paynev. Tennessee, No. 90-5721, Brief of Amicus Curiae, State of California at p. 10, 1991 WL 11007883 at * 13, emphasis added.) Just as “victim impact” represents the “pro” in a particular case (from the state’s perspective), the devastating impact of an execution on the family of a defendantis one of the “cons.” 259 Here, these rights were violated. Thetrial court precluded the defense from introducing evidence regarding the impact of an execution on defendant’s family. The trial court refused to give any instructions on this issue which,as a practical matter, meantthat defense counsel could not argue it. (See 6 CT 1212 [telling jurors that if either attorney said anything inconsistent with the court’s instructions, the court’s instructions prevailed].) The trial court’s error requires a new penalty phase. Indeed,in this context the United States Supreme Court has never held that errors which prevent the jury from considering mitigating evidence can be found harmless by a reviewing court. (See, e.g., Brewer v. Quarterman(2007) 550 U.S. 286, 293-296 [instructional error precludesfull jury consideration of mitigating evidence at defendant’s penalty phase;held, death sentence reversed without application of a harmless error test]; Abdul-Kabirv. Quarterman (2007) 550 U.S. 233, 247-265 [same]; Penry v. Johnson (2001) 532 U.S. 782, 796-803 [same]; Penry v. Lynaugh (1989) 492 U.S. 302, 319-328 [same]; Eddingsv. Oklahoma, supra, 455 U.S. 104 [sentencer refuses to consider evidence regarding defendant’s childhood;held, death sentence reversed without application of a harmless error test]; Lockett v. Ohio, supra, 438 U.S. 586 [state statute precluded sentencer from considering mitigating evidence; held, death sentence reversed without application of a harmlesserror test].) Lower federal courts too have recognized that this type of erroris 260 not subject to harmless error review. (See, e.g., Nelson v. Quarterman (5th Cir. 2006) 472 F.3d 287, 314; Wright v. Walls (7th Cir. 2002) 288 F.3d 937, 942-946; Hargravev. Dugger (11th Cir. 1987)(en banc) 832 F.3d 1528, 1533-1535. See generally Allen v. Buss (7th Cir. 2009) 558 F.3d 657, 667 [when a class of mitigating evidence is excluded “Eddings . . . mandate{s] relief.”}.) The Supreme Court’s decision in Penry is particularly instructive. In that case, defendantfirst contended that the state’s use of a psychiatrist’s report violated his Fifth Amendmentrights. (532 U.S.at pp. 793-796.) The Supreme Court rejected the claim and, in an alternative holding, found any error harmless. (532 U.S.at p. 796.) As to defendant’s secondclaim involving mitigating evidence, the Court agreed there was constitutional error and reversed without any harmless error analysisat all. (/d. at pp. 796-803.) In making this argument, Mr. Rices is aware that in a case which pre-dated Penry, this Court charted a different course, applying harmlesserror analysis to the exclusion of mitigating evidence. (See, e.g., People v. Lucero (1988) 44 Cal.3d 1006, 1031-1032.) Numerous subsequentdecisionsof this Court have reached the same conclusion, many citing Lucero. (See, e.g., People vy. Smith (2005) 35 Cal.4th 334, 368; People v. Mickle (1991) 54 Cal.3d 140, 193.) 261 In this case, there is no need to resolve the tension between these two lines of authority. Even assuming this Court applies harmless error analysis to the trial court’s errors here, the error cannot be found harmless for three reasons. First, the trial court here did not just preclude evidence on the subject, it also refused to instructthe jury on the issue and thereby precluded argumentas well. As the Supreme Court has observed, the “very premise of our adversary system of criminal justice is that partisan advocacy on both sides of a case will best promote the ultimate objective that the guilty be convicted and the innocentgo free.” (United States v. Cronic, supra, 466 U.S.at p. 655.) The essence of the Sixth Amendmentis contained in the Supreme Court's observation that “[t]ruth . . . is best discovered by powerful statements on both sides of the question.” (Ibid.) Here, the entire adversary system ceased to function in connection with this mitigating evidence. The defendant was precluded from presenting this information to the jury by way of argumentorinstruction, and he was prevented from urging the jury to sparehis life on the basis of this evidence. Underthese circumstances, defendant did not have “partisan advocacy on bothsides of[his] case ....” At every turn defendant was barred from presenting his “side of the case” to the jury on this point. Nor could a reliable judgment emerge from the existence of “powerful statements on bothsides of the 262 question.” Becauseofthe trial court’s ruling, defense counsel wasnot allowed to make any statementatall on his side of this importantissue. Second, although the circumstanceofthis crime were concededly tragic, this case does not involve the type of particularly heinous defendant the Court often sees in death penalty cases. (See, e.g., People v. Ray (1996) 13 Cal.4th 313, 330-331 [defendant had two prior murder convictions]; People v. Nicolaus (1991) 54 Cal.3d 551, 567 [defendant convicted of murderin 1985 hadkilled his three children in 1964 and hadbeen on death row for these prior homicides]; People v. Hendricks (1987) 43 Cal.3d 584, 588-589 [defendant had two prior murderconvictions].) Here, while defendant had been convicted of crimes prior to the charged crimes-- a robbery, a drug possession offense and possession of a weaponinjail -- these offense pale by comparisonto the prior offensesin cases like Ray, Nicolaus and Hendricks. Third, although the state presented a case in aggravation which included other offenses as well as assaults in custody, this was certainly not a case bereft of mitigation. In fact, as noted in the statement of facts above, the mitigation case in this case started before defendant was even born. There is no need to repeat the mitigation evidence here in detail. Jean Pierre was 263 born to a prostitute who was addicted to PCP. Her own family membersrecalled that she “was always calling him stupid.” (17 RT 2465.) She abandoned Jean Pierre when he was only five years old on the streets of Los Angeles outside a Jack-in-the-Box. (17 RT 2431- 2441.) She yelled at him, cursing and screamingthat she did not want him and threw rocks and a beer can at him to get him to leave her. (17 RT 2432.) The responseoflittle five-year old Jean Pierre was typical; he called out to his mother “Mama,I want to go,I want to go. Mama!” (17 RT 2431.) His mother walked away and “never turned around to look back.” (17 RT 2433-2434.) Mr. Rices never saw his motheragain. Jean Pierre wasnot provided with services of any kind -- no treatmentor therapy. (17 RT 2550; 18 RT 2665.) Expert witness Barbara Dueytestified that treatment and therapy are important because a very high number of abused, dependant children can become delinquent. (17 RT 2555, 2557-2558.) Bythe time Jean Pierre was 11 or 12 years old he had not only been abandoned by his mother and father, but abandonedhis grandparents and his aunt as well. And although he found somesuccess at a group home whenhe wasbefriended by Bobby Sparks, when Mr Sparksleft the home, Jean Pierre went south again. (17 RT 2525-2528.) Despite all this, Mr. Rices had numerous family members comeandtestify on his 264 behalf at sentencing. As noted above, Mr. Rices’s father appeared as a mitigation witness, as did his aunt, his maternal uncle, his grandfather, his grandmotherandhis great uncle. (17 RT 2447, 2461, 2500, 2514, 2517, 2536.) But the defense was precluded from presenting evidence to show the impact of an execution on any of these family members. Even assuming a harmless error analysis could be appliedto this error, given the mitigating evidence which waspresented, the state will be unable to prove thatat least one juror could not reasonably have votedforlife had such evidence be presented. As such, because California law requires a unanimous jury for a death verdict, reversal of the penalty phase is therefore required. (Compare Wiggins v. Smith, supra, 539 U.S.atp. 537 [where state law requires unanimousverdict, relief required where absent the error one juror could have reached a different verdict]; People v. Soojian, supra, 190 Cal.App.4th at p. 520 [relief required understate-law standard of prejudice where one juror could have reached a different verdict].) 265 XVI. THE DEATH SENTENCE MUST BE REVERSED BECAUSE THE JURY WAS PERMITTED TO (1) RELY ON ACCOMPLICE ANTHONYMILLER’S PRIOR STATEMENTS TO POLICE ABSENT ANY CORROBORATIONAT ALL AND (2) CORROBORATE MILLER’S IN-COURT TESTIMONY WITHHIS OWN PRE-TRIAL STATEMENTS. A. The Relevant Facts. Asdiscussed above, the Rices jury was called back into session to hear evidence in aggravation from Anthony Miller. (5 CT 1102; 13 RT 1891.) Mr. Rices has already explained why defense counsel’s failure to object to this procedure requires a new penalty phase. But even putting that issue aside, reversal of the penalty phase is required. Miller wasplainly an accomplice to the crime. During his examination, Miller testified about the crimeitself. He told jurors that he had planned to go with Rices to a moviethat night, and had no idea what was going to happen until they stopped near the market when Mr. Rices pulled out a gun andtold Miller he was going to “take somebody’s moneyfor me.” (13 RT 1899, 1907-1908.) Miller testified that Rices ordered him to put on gloves and a maskand he did so because Rices had a gun. (13 RT 1909.) Miller said he was scared of Mr. Rices because he had a “reputation;”“as far as streets go, street ethics and being a gang member, [Rices] has a very highstatus.” (13 RT 1939.) Thetrial court told the 266 Miller jury it could consider this gang evidence, but the Rices jury it could not. (13 RT 1940.) Miller then confirmed that Rices had “a killer glaze in his eyes.” (13 RT 1940.) But Miller’s actual testimony was not the only evidence in aggravation introduced during Miller’s time on the stand. In addition to Miller’s testimony, the jury heard aggravating evidencein the form of Miller’s pretrial statements to police. Thus, the prosecutorplayed specific portions of Miller’s prior statements to police in which he detailed the last words of the two victims: “Q: [by the prosecutor] Do you rememberhaving a specific memory whenyoutalked to [police] about what it was Heather Mattia said when you cameinto the store? “A: [by Mr. Miller] Yes I do. “Q: What did she say? “A: Well, what I had said, as you just played on the tape was,I believe,it was‘help me.” Or something alongthe lines ‘don’t kill me.’”(13 RT 1958.) The prosecutor was obviously aware of the powerthis evidence had. He continued asking Mr. Miller abouthis prior statementto police: * The Miller jury obviously found this evidence of duress worth believing. Duress was Miller’s only defense and his jury hung on the murder charges. (17 RT 2490-2491.) 267 “A: «Q: “A: Mr. Miller, do you remembertelling detectives that you heardher say ‘Please don’t kill me. I just want to be with my family”? Yes, I remembertelling the detective that. Is that your recollection of what happened now? No,it is not.” (13 RT 1958-1959.) The prosecutor then turned to Miller’s statements to police about what he heard from the second victim: “Q: “A: “Q: “A: How aboutFiras Eiso; did Firas Eiso beg for his life? Nosir. Do you remembertelling detectives that Firas Eiso said ‘I’m young. Please don’t kill me. Let melive.’ No, I do not rememberthat.” (13 RT 1959.) The prosecutor then showed Miller a transcript of his statements to police to refresh his recollection. (13 RT 1959-1960.) He then returned to Miller’s statements about what Mr. Eiso said: «Q: Do you remembertelling detectives ‘faroos, faroosh, whatever, he was just begging forhislife, too, at one point,’ and being asked by detective Hoefer, “What was he saying?’ You responded,‘I don’t 268 know. Just please, you know, please let me go. ’'m young.’ Do you rememberthat? “A: YesIdo.” (13 RT 1960.) Asdiscussed above in Argument X,this evidence in aggravation from Mr. Miller assumeda central role in the prosecutor’s argument for death. Thus,relying on Miller’s statements to police, the prosecutor urged the jury to impose death because “Heather and Firas did everything they were told to do. They didn’t resist. They laid down on the floor. They begged for their lives.”” (19 RT 2747.) In the prosecutor’s view Miller’s statements to police were reliable and the jury should fully credit them: “You rememberI impeached him with his prior statement to law enforcement, which youare entitled to consider as evidence for the truth of the matter. Andthat is that they begged for their lives. These kids begged for their lives. They’re laying on the floor. 22-year-old girl says [‘]I just want to be with my family. Let me live.[’] 23-year-old man says, [“]I’m young. I wantto live.[’] “He doesn’t care. He doesn’t care. None of that matters to Jean Pierre Rices. So what if they had the money? So whatif the victims were cooperative? So whatif the victims were begging for their lives? Jean Pierre Rices wantedto kill them. There was no other reason.” (19 RT 2747.) In his rebuttal argument, the prosecutor returned to this same theme. He again asked the jury to consider Miller’s statements about the victims’s last words. (19 RT 269 2780.) Thetrial court properly advised the jury that Miller was an accomplice. (6 CT 1221.) In instructing jurors what evidence from Miller should be viewed with caution, the trial court specifically referenced both Miller’s testimony andhis prior statements to police,telling jurors that “any statementor testimony of Mr. Miller that tends to incriminate the defendant. . . should be viewed with caution.” (6 CT 1221, emphasis added.) However,in instructing jurors what evidence from Miller required corroboration, the court singled out Miller’s testimony alone,telling jurors that “the testimony of Anthony Miller[] requires supporting evidence... .” (6 CT 1220.) The inference from these two instructions together was plain. In back-to-back instructions jurors had been told that (1) Miller’s “statement{s] [and] testimony” should be viewed with caution but (2) only Miller’s “testimony” required supporting evidence. (6 CT 1220-1221.) A logical and certainly reasonable reading of these instructionsis that Miller’s pre-trial statements did not require supporting evidence. In fact, the trial court never did instruct jurors that just as with Miller’s testimony, they could not find any fact in aggravation true based on Miller’s pretrial statements to police absent corroborating or supporting evidence. (6 CT 1220-1221.) Moreover,as to 270 Miller’s testimony -- which the trial court did advise jurors required supporting testimony -- the court never explained that the supporting evidence had to be independentof Miller’s testimony or statements. As more fully discussed in Argument XVI-B, below, because Miller was an accomplice there are two distinct instructional errors. First, the trial court had a sua sponte obligation to instruct jurors not just that they could notrely on Miller’s testimony absent supporting evidence, but that the supporting evidence hadto be independent of Miller’s statements or testimony. Second, and again because Miller was an accomplice, the trial court had a sua sponte obligation to instruct jurors that this corroboration requirement applied not just to Miller’s testimony, but to both Miller’s testimony and his pretrial statements to police. The trial court’s failure to give proper instructions on these points violated state law. But as discussed in Argument XVI-C,this was not just a violation of state law. Given the recognized unreliability and dangers of accomplice testimony, the failure to give proper corroboration instructions also violated federal law, including Mr. Rices’s Eighth Amendmentright to a reliable penalty phase as well as his right to a fair and reliable sentencing proceeding underthe Fifth, Sixth and Fourteenth Amendments. Ultimately, though, as discussed in Argument XVI-D,it does not matter whether 271 this is viewedas state or federal error. Because there was simply no corroboration of Miller’s testimony or pretrial statements to police about the victims’ last words, and because Miller’s prior statements were central to the state’s argumentfor death, the absence of proper corroboration instructions requires a new penalty phase. Finally,as discussed in Argument XVI-E,evenif the trial court had no sua sponte duty to give proper corroboration instructions, trial counsel’s failure to request such instructions violated Mr. Rices’s right to the effective assistance of counselanditself requires a new penalty phase. B. UnderState Law, The Trial Court Erred In Failing To Instruct The Jury That It Could Not Find Aggravation Based On (1) Miller’s Testimony Absent Corroboration Independent of Miller And (2) Miller’s Prior Statements To Police Unless They Were Corroborated. 1, Thetrial court was obligatedto instruct the jury that it could not rely on Miller’s testimony absent corroboration which was “independent of Miller’s statements or testimony.” Penal Code section 1111 governs the treatment of accomplice testimony, providing that a conviction may not be based upon suchtestimonyunless it is corroborated: “A conviction cannotbe had uponthe testimony of an accomplice unlessit be corroborated by such other evidenceas shall tend to connect the defendant with the commission of the offense; and the corroboration is not 272 sufficientif it merely shows the commission of the offense or the circumstancesthereof.” Consistent with this principle, trial courts have a sua sponte duty to instruct the jury on pertinent principles of accomplice testimonyif the accomplice was “liable for prosecution for the identical offense charged against [the defendant].” (People v. Ybarra (2008) 166 Cal.App.4th 1069,citing People v. Guian (1998) 18 Cal.4th 558, 579, n.1. See also People v. Gordon (1973) 10 Cal.3d 460; People v. Bevins (1960) 54 Cal.2d 71; People v. Warren (1940) 16 Cal.2d 103.) This Court has repeatedly required instructions on the necessity of accomplice corroboration instructions in connection with evidence from accomplices offered in aggravation at the penalty phase of capital cases. (See, e.g., People v. Mincey (1992) 2 Cal.4th 408, 461; People v. Varnum (1967) 66 Cal.2d 808, 814-815; People v. McClellan (1969) 71 Cal.2d 793, 807-808; People v. Miranda (1987) 44 Cal.3d 57, 100.) Proper corroboration instructions in the penalty phase will inform jurors of two main points. First, such instructions will advise jurors that before they may rely on an accomplice’s testimony it must be “supported by other evidence that you believe.” (CALCRIM 335.) Second,it will advise jurors that the supporting evidence “must be independentof the accomplice’s statement and/or testimony.” (Jbid.) 273 Here, there should be no dispute that Miller was an accomplice. After all, he was charged with the same crimes andthetrial court itself recognized (and told the jury) that Miller was an accomplice. (6 CT 1221.) Pursuant to the above authorities, complete and accurate corroboration instructions as to Miller’s testimony should have been given. But they were not. Thetrial court advised the jury in substanceas tothefirst of the points covered in the standard accomplice corroboration instructions. (6 CT 1220 {advising jurors that Miller’s testimony “require[d] supporting evidence”before it could be relied on to “prove any fact.”].) But the court failed to instruct the jury atall on the second of these requirements -- that the corroboration be independentof the accomplice’s own testimony or prior statements. Error has occurred. 2. Thetrial court was obligated to instruct the jury that it could not rely on Miller’s pretrial statements to police absent corroboration. By its own terms, section 1111 -- enacted in 1872 -- imposes the corroboration requirement only asto “the testimony of an accomplice.” That section doesnotrefer to prior statements of an accomplice. This made sense. In fact, there was no reason for the Legislature to reference anything other than testimony in section 1111. After all, at the time section 1111 was 274 drafted, whenprior statements were admitted at trial they were only admitted to impeach a witness’s testimony, and notfor the truth of the matter asserted in the prior statements. (People v. Belton (1979) 23 Cal.3d 516, 525.) Since an accomplice’s prior statements were admissible only to impeach, and not for the truth of the matter asserted, there was no | reason to extend the scope of section 1111 to those statements. But this changed with the 1967 enactment of Evidence Code section 1235. Section 1235 permitted prior statements of witnesses not only for impeachment, but also for the truth of the matter asserted in those statements. (Ibid.) As a result, this Court has invoked “the basic principle that legislative intent prevails over literal construction”to hold an accomplice’s prior statement is testimony within the meaningofsection 1111. (People v. Belton (1979) 23 Cal.3d 516, 526.) Thus the corroboration requirement of section 1111 applies not just to accomplice testimony, butalso “to an accomplice’s out- of-court statements when such statements are used as substantive evidence ... .” (People v. Andrews (1989) 49 Cal.3d 200, 214.) ) “In both the guilt and penalty phasesoftrial, the court ordinarily mustinstructthe jury sua sponte [on the corroboration requirement] whenout-of-court statements to police by accomplices are admitted into evidence.” (People v, Carter (2003) 30 Cal.4th 1166, 1223.) Here, as noted above,thetrial court itself recognized that Miller was an 275 accomplice. As such, an instruction telling the jury that the accomplice corroboration requirement applied to Miller’s statements to police wasentirely proper. No suchinstruction was given here. Thetrial court instructed the jury that absent supporting evidence,it could not rely on Miller’s “testimony”to find any fact. (6 CT 1220.) As also noted above,this instruction conveyed the need for supporting evidence in connection with Miller’s testimony,but not his prior statements. Defense counsel here did not request a modification of CALCRIM 301 to include a separate reference to Miller’s pretrial statements. Andrews and Carter establish that such a modification was entirely proper. Since defense counsel made no such request, in order to determineif the trial court erred in failing to give this instruction, the question is whetherthe trial court was under a sua sponte duty to provide the instruction. For two separate reasons the answeris yes. In the early cases in which this Court settled the law -- and held that the accomplice corroboration requirementdid indeed apply both to an accomplice’s pretrial statements as well as his in-court testimony -- the Court went on to hold thatthetrial court had no sua sponte duty to modify the standard instructionsto reflect this. (People v. Andrews, supra, 49 Cal.3d at pp. 214-215 [trial in mid-1980s]; People v. Lawley (2002) 276 27 Cal.4th 102, 148, 160-161 [trial in 1989]; People v. Friend (2009) 47 Cal.4th 1, 10, 42 [trial in 1992].) This does not mean, however,trial courts have no such duty for all time. (See People v. Flannel (1979) 25 Cal.3d 668, 682 [holding that althoughthetrial court in that case had no sua sponte duty to instruct on imperfect self-defense, after the Court’s decision recognizingthe rule, future courts should consider imperfect self-defense “a general principle for purposes of jury instruction[s]. . . .”].) This Court recognized in Flannel that as the law develops and changes, so too does the sua sponte duty of trial courts. As a result, this Court proposed a general rule to be used in determining if a particular legal rule has achievedsufficientclarity to be considereda “general principle of law,” explaining that courts mustlook to see if the rule has been clearly stated in published cases and has received headnote status. (People v. Flannel, supra, 25 Cal.3d at p. 682.) Here,since this Court’s 1989 decision in Andrews-- and well before the 2009trial in this case -- the rule that the accomplice corroboration instruction applies to prior statements of the accomplice (and not just testimony) has beenclearly stated in many published cases. (See,e.g., People v. Brown (2003) 31 Cal.4th 518, 555; People v. Williams (1997) 16 Cal.4th 153, 245; People v. Rodrigues (1994) 8 Cal.4th 1060, 1131.) It has also achieved headnote status. (See, e.g., People v. Brown, supra, 31 Cal.4th 518 277 [headnote 53}.) Moreover, in the standard CALCRIM jury instructions published priorto trial (whichthetrial court here used), the use note specifically tells the trial court that because “the out-of-court statement of a witness may constitute ‘testimony’ within the meaning of Penal Code section 1111,”trial courts should determine whether to modify the standard instructionto state that “testimony within the meaning of . . . section 1111 includes . . all out of court statements of accomplices ....” (CALCRIM 334 (2006 edition) at p. 82; accord CALCRIM 335 (2006 edition) at p. 85 [“If the court concludes that the corroboration requirementapplies to an out of court statement, use the word ‘statement’ throughoutthe instruction.”].) In short, for the reasons this Court identified in Flannel -- at least as for trials like this which began after 2009 -- there is no longer any reason this basic principle of accomplice corroboration should not be a sua sponte obligation. Butthere is a second, case-specific reason there was a sua sponte duty to instruct the jury that the accomplice corroboration requirement applied to Miller’s pre-trial statements. Here -- in contrast to cases like Andrews, Lawley and Friend-- thetrial court did not simply give a general instruction telling jurors that the testimony of accomplices needed supporting evidenceor corroboration. Instead, the court gave two instructions on accomplice testimony,instructions which taken together here may haveaffirmatively 278 misled jurors into thinking that Miller’s statements could be relied on absent any supporting evidence. In this regard, the trial court affirmatively drew a distinction between Miller’s testimonyand his pre-trial statements. When the court advised jurors what accomplice evidence they must view with caution,it specifically identified both Miller’s “statements” and his “testimony.” (6 CT 1221.) But when the court advised jurors what accomplice evidence needed supporting evidence,it specifically identified only Miller’s “testimony.” (6 CT 1220.) As noted above, from this combination of instructions jurors could have logically understoodthatthe trial court’s decision not to include “statements” in the supporting evidence instruction was not an accident, but meant they could rely on Miller’s statements in the absence of supporting evidence. Thus, even if thetrial court had no sua sponte duty to explain the accomplice instructions in terms of both pre-trial statements and in-court testimony, once the court elected to instruct on these areas it was required to do so correctly. (See People v. Castillo (1997) 16 Cal.4th 1009, 1015; People v. Montiel (1993) 5 Cal.4th 877, 942; People v. Cummings (1993) 4 Cal.4th 1233, 1337; People v. Malone(1988) 47 Cal.3d 1, 49.) On the facts of this case, the trial court was obligated to instruct the jury that it could not rely on Miller’s pre-trial statements absent some corroboration. The failure to do so violated state law. 279 3. The exception to the accomplice corroboration requirementset forth in People v. Easley (1988) 46 Cal.3d 712 and its progeny does not applyto this case. In arguing thatthe trial court failed to properly instruct the jury in connection with Miler’s testimony andhis prior statements, Mr. Rices is aware that the Court has recognized an exception to the general rule requiring proper instructions on accomplice corroboration. Simply stated, accomplice corroboration instructions are not required when the accomplice’s penalty phase testimonyrelates to an offense of which the defendanthas already been convicted. (People v. Easley (1988) 46 Cal.3d 712, 734.) Wherea defendanthas already been found guilty beyond a reasonable doubt of an offense, the testimony and prior statements of an accomplice that defendant committed that crime need not be corroborated. This exception makes perfect sense. If an accomplicetestifies or gives a statement that defendant committed a crime, no corroboration is necessary where that crime has already been fully adjudicated and a jury has found that defendant committed the crime beyond a reasonable doubt. The same would presumably be true where,as here, the defendantentered a plea and admitted committing the crime. Thus,if the prosecutor here had only sought to introduce Miller’s testimony or prior statements that Mr. Rices committed the charged crimes, no corroboration would be necessary because Mr. Rices 280 had admitted this by pleading guilty. That would be a logical and sound application of the Easley exception. Butthat is not what happened here. The aggravating evidence from Miller’s testimony and prior statements went well beyond simply proving that Mr. Rices committed the crime. Instead, the evidence presented specific facts in aggravation about how the murders were committed, facts which Mr. Rices had not admitted in his guilty plea. In fact, none of these facts in aggravation had been previously adjudicated by Mr. Rices’s plea. This Court has addressed similar situations on several occasions. In People v. Carter (2003) 30 Cal.4th 1166, the defendant was convicted of capital murder in the shooting death of two victims. At the penalty phase, the prosecution introduced evidence from an accomplice that defendant wasthe actual shooter in both cases. No accomplice instructions were given. On appeal, defendant recognized that he had already been convicted of these two offenses and made the same argument Mr. Rices makes here: the Easley exception did not apply because the jury which found him guilty had not necessarily resolved the specific facts of the crime and may have convicted him as an accomplice. (30 Cal.4th at p. 1223.) The Court rejected the argument, noting that the jury had not simply found defendant guilty of murder but it had gone further and found 281 that defendant personally used the weapon which killed the victims. (Jbid.) Underthis situation, the Easley exception wasfairly applied since the accomplice’s penalty phase testimony did not introduce any facts which had not been found true beyond a reasonable doubt. (Ibid. See also People v. Mincey, supra, 2 Cal.4th at p. 462 [no prejudicial error in failing to give accomplice corroboration argumentas to penalty phase aggravating evidence provided by accomplice where the accomplice’s testimony did not go beyond jury’s guilt phase findings that defendant wasthe actual killer and the murder involved torture].) This case stands in sharp contrast to both Carter and Mincey, andthe differences explain why the Easley exception should not apply here. Here, in contrast to both those cases, Mr. Rices’s guilty plea did not involve findings on the very aggravating evidence offered by the accomplice. If it had, then like those cases, the Easley exception would be fully applicable. But because the aggravation provided by Miller’s testimony and statements to police went well beyond what wasinherent in Mr. Rices’s guilty plea, the Easley exception should not apply. It bears noting that the policy behind requiring the accomplice corroboration instruction is directly implicated in this case. The reasontrial courts have a sua sponte duty to instruct on the requirement of corroboration for the testimony and statements of 282 accomplices is because of the Legislature’s recognition that accomplices often provide unreliable information to police. (See People v. Najera (2008) 43 Cal.4th 1132, 1137; People v. Cuevas (1995) 12 Cal.4th 252, 261.) Here, that reason is directly implicated. Miller’s entire defense was predicated on convincing the jury that he participated in the crime because Mr. Rices forced him to. Thus, he plainly had a motive to lie when he testified to both juries that Mr. Rices forced him to do the crime-- testimony which at least the Miller jury found believable enoughto force a hung jury. (13 RT 1907-1909, 1309-1321.) But Miller’s motive to lie was equally evidentin his statements to police. In fact, Miller acknowledged lying to police specifically about things the victimssaid: “Q: “A: “Q: “A: «Q: “AS [by the prosecutor]: Mr. Miller, do you remembertelling the detectives that you heard hersay [‘]Please don’t kill me. I just want to be with my family?[’] [by Miller]: Yes, I remembertelling the detectivesthat. Is that your recollection of what happened now? No,it is not. Why would yousay that to the detectives back thenif it weren’t true? Atthat point, I had so many things going though my head, the most important thing wasto try to get the detectives to believe me. SoI said whatever I had to say.” (13 RT 1958-1959.) 283 Again, Mr. Miller madeclear that he was lying to police -- trying to give them information which would makeotherparts of his story more believable: “Q: “A: “Q. “A. [by prosecutor]: Why would you say [the victims were begging]? [by Miller]: To be believed. For what purpose? By your detectives.” (13 RT 1967.) This theme wasrepeated throughout Miller’s testimony. (See 13 RT 1934 [Miller said he lied when he told police he was the getaway driver and Nut-Nut wasthere], 1935 [lied about not going into the store], 1935-1936 [lied about going to Sunshine’s house], 1936 [lied about doing other robberies], 1936-1937 [lied about having a gun to his head in the past], 1961 [lied about taking his brands of cigarettes during the robbery], 1965 [lied about whenhefirst saw the gun], 1968 [lied about when hefirst knew of the planned robbery], 1969 [lied about hanging out with Heather Mattia], 1970-1971 [lied about when he first put gloves on], 1984 [lied about knowing victim’s brother, Chris Mattia].) Miller concisely summeduphis strategy in telling police theselies: “How can I put this? I would haveliked to have been believed by the officers, so I said a lot of things that were false [para.] but sounded believable.” (13 RT 1960.) 284 Onthis record,the trial court should haveinstructed jurors that before they could rely on Miller’s testimony and prior statements as aggravating evidence that evidence had to be properly corroborated. The exception carved out in Easley does not applyto this case; the trial court’s failure to provide properinstructions violated state law. C. The Trial Court’s Failure To Instruct The Jury It Could Not Rely On Miller’s Testimony And Prior Statements In Aggravation Unless They Were Properly Corroborated Also Violated Federal Law. Thetrial court’s failure to give proper accomplice corroboration instructions also violated federal law. Becausestate law entitled Mr. Rices to instructions explaining that the jury could not rely on Miller’s testimony and prior statements in aggravation unless the evidence was properly corroborated, thetrial court’s failure to give these instructions also violated due process. (See Hicks v. Oklahoma, supra, 447 U.S.at p. 346 [arbitrary deprivation of state law right violates Due Process].) In addition, since state law permitted Mr. Rices to urge the jury to reject Miller’s testimony and statements because they were uncorroborated, the trial court’s failure to instruct on this line of defense affirmatively interfered with Mr. Rices’s ability to present a defense to the jury that was fully recognized bystate law,in violation of the Fifth Amendmentright to present a defense and the Sixth Amendment right to a jury trial. (See, e.g., Simmons v. South 285 Carolina (1994) 512 U.S. 154 [at penalty phase of capital trial, jury was instructed not to consider parole; held, instruction violated due process where defense theory was that defendant would neverbe paroled]; People v. Mize (1889) 80 Cal. 41, 44-45 [defendant charged with murder, defense presented evidence of self-defense, jury instructed it could find culpable mental state simply by finding defendantshot victim; held, instruction improper becauseit undercut the defense presented]; People v. Medrano (1978) 78 Cal.App.3d 198, 214 [instruction which withdrawsa principal defense from the jury is error], overruled on other grounds in Vista v. Agricultural Labor Relations Bd. (1981) 29 Cal.3d 307.) Thetrial court’s failure to give a proper corroboration instruction also violated the Eighth Amendment, which imposesa heightened standard “forreliability in the determination that death is the appropriate punishmentin a specific case.” (Woodsonv. North Carolina (1976) 428 U.S. 280, 305 [plurality opinion of Stewart, Powell, and Stevens, JJ.]; see also Godfrey v. Georgia (1980) 446 U.S. 420, 427-428; Mills v. Maryland (1988) 486 U.S. 367, 383-384.) The Eighth Amendmentrequires provision of “accurate sentencing information [as] an indispensable prerequisite to a reasoned determination of whether a defendant shalllive or die,” (Gregg v. Georgia (1976) 428 U.S. 153, 190 [joint opinion of Stewart, Powell, and Stevens, JJ.]), and invalidates “procedural rules that ten[d] to diminish thereliability of the sentencing determination.” 286 (Beck v. Alabama (1980) 447 U.S. 625, 638.) Pursuantto these principles, the trial court’s failure to give proper corroboration instructions violated the Eighth Amendment. Understate law, and precisely because of concerns aboutreliability, the jury was notentitled to rely on Miller’s testimony and prior statements in aggravation unless this evidence was properly corroborated by evidence independentof Miller. Thetrial court’s failure to explain this to the jury violated the Eighth Amendmentprecisely because it undercutthereliability of the evidence which resulted in the jury’s subsequent death sentence. State and federal error has occurred. D. Because Of The Significance Of Miller’s Aggravating Evidence To The State’s Case, The Failure To Provide A Corroboration Instruction Requires A New Penalty Phase. Whethertheerror is analyzed understate law, the Fifth Amendment, the Sixth Amendmentor the Eighth Amendmentis of no import. Under any framework,the error is subject to the so-called Chapmanstandard of prejudice, requiring the state to prove the error harmless beyond a reasonable doubt. (See Chapmanv. California, supra, 386 U.S. at p. 24 [federal errors require the state to prove the error harmless beyond a reasonable doubt]; People v. Brown (1988) 46 Cal.3d 432, 448 [articulating prejudice standard for state law errors at the penalty phase]; People v. Gonzales (2011) 51 Cal.4th 894, 953 287 [concluding that the state law test for prejudice at the penalty phase is the sameas the federal Chapman standard].) “[T}he failure to instruct on accomplice testimony pursuant to section 1111 is harmless where there is sufficient corroborating evidence in the record.” (People v. Miranda (1987) 44 Cal.3d 57, 100.) Here, through Miller’s testimony and prior statements the jury heard the following facts in aggravation: (1) Mr. Rices ordered Miller to put on gloves and a mask, (2) Miller did so only because Rices had a gun, (3) Miller was scared of Rices becauseofhis “reputation,” (4) Miller told police Rices had “‘a killer glaze in his eyes,” (5) the last words of one of the victims were “please don’t kill me. I just want to with my family” and (6) the last words of the other victim were “I’m young. Please don’t kill me. Let melive.” (13 RT 1939-1940, 1958-1959.) The fact of the matteris that the trial record below contains no independent corroboration atallfor even a single one of these aggravatingfacts. Not one. On this record, understate law, the jury simply could not rely on these uncorroborated statements in its calculus to determine whether death was appropriate. But the jury was nevertold this. And the prosecutor’s argument exacerbated the error. As noted above, the prosecutorrelied extensively on Miller’s pretrial statements. As discussed above, the prosecutorrelied on Miller’s statements to police in rhetorically powerful fashion in both 288 his opening argumentfor death, and his closing argument for death. (19 RT 2747, 2780.) The prosecutor wasnot subtle; after describing the statements for a second time the prosecutorfrankly told the jury how important these statements were to the state’s case for death: “Tf there wasn’t one shred of aggravating evidence beyondthat, not one thing, you would bejustified in saying, [‘]For that conduct, Jean Pierre Rices, you deserveto die.[’]” (19 RT 2748.) Of course, the prosecutor’s emphasis on this evidence demonstrates the importanceofit to the state’s case “and so presumably [to] the jury.” (See People v. Powell (1967) 67 Cal.2d 32, 55-57 [prosecutor’s reliance on evidencein final argument reveals how important the prosecutor “and so presumably the jury” considered the evidence].) Moreover, as explained elsewhere in this brief, this was not a case where the defendantfailed to present mitigation. Here the defense presented substantial mitigation evidence regarding his childhood. On such a record as this, where no evidence corroborated Miller’s testimony and statements in aggravation, and where the prosecutor heavily relied on this evidence to urge the jury to impose death, the state cannot prove the error in failing to instruct on accomplice corroboration harmless. Reversal of the penalty 289 phase verdict is required. E. EvenIf The Trial Court Had No Sua Sponte Duty To Give Proper Corroboration Instructions, Trial Counsel’s Failure To Request Such Instructions Constituted Ineffective Assistance of Counsel. The federal andstate constitutions guarantee criminal defendants the right to the effective assistance of counsel. In orderto obtain relief because counsel provided ineffective assistance, a defendant must show both (1) deficient performance (performance below an objective standard of reasonableness) and(2) prejudice. (Strickland v. Washington, supra, 466 U.S.at pp. 688, 693.) Here, counsel’s failure to request proper corroboration instructions as to Miller violated both prongs of Strickland. 34 As noted, the court told jurors Miller’s testimony required supporting evidence... (6 CT 1220.) Respondent may suggestthat this instruction renders any error harmless. This argument should notlong detain the Court. The court’s instruction did indeed conveyto the jury the need for supporting evidence. Butthis instruction (1) specifically limited this requirementto Miller’s testimony and (2) did not cover Miller’s devastating statements to police about the victims’ last words. And evenasto Miller’s testimony,this instruction failed to tell the jury that the supporting evidence had to be independentof Miller’s own testimony and statements. Asa result, this instruction doesnot alter the prejudice calculus in any appreciable way. A new penalty phaseis required. 290 1. Counsel’s failure to request proper corroboration instructions constituted deficient performance. In applying the deficient performance prongs to counsel’s failure to request limiting instructions, it is importantto recall that the responsibility of ensuring the jury is fully instructed on the principles applicable to the defense theory of the case does notfall uponthetrial judge alone. Althoughthetrial court’s duty in this area is considerable, defense counsel too has an obligation to ensure that the trial court does not omit critical instructions. (See People v. York (1966) 242 Cal.App.2d 560, 575.) This Court has underscored this dimension of defense counsel’s obligation to his client: “We deem it appropriate to emphasize that the duty of counsel to a criminal defendant includes careful preparation of and requestfor all instructions whichin his judgmentare necessary to explain all of the legal theories upon whichhis defenserests.” (People v. Sedeno (1974) 10 Cal.3d 703, 717, n.7 overruled on other grounds in Peoplev. Breverman (1974) 19 Cal.4th 142, 172-173.) And as the Eighth Circuit Court of Appeals has recognized, there can be notactical reason for failing to request an instruction that can only benefit the defendant. (Woodwardv. Sargent (8th Cir. 1986) 806 F.2d 153, 157.) Notsurprisingly, then, the failure to request certain instructions can bethe basis for a conclusion that counsel was incompetent. (See Freeman v. Class (8th Cir. 1996) 95 F.3d 639, 641-642.) 291 To be sure, counsel cannotbe faulted for failing to request particular instructions if those instructions would have been refused. But for the reasons identified in Argument XVI-B,above,thetrial court here could not properly have refused a request to instruct the jury (1) Miller’s testimony could not be corroborated by Miller’s own statements or (2) the corroboration requirement applied not only to Miller’s testimony,but to his pretrial statements as well. (See CALCRIM 335[corroboration must be independent of accomplice]; People v. Andrews, supra, 49 Cal.3d at p. 214 [the corroboration requirementof section 1111 applies not just to accomplice testimony, but also “to an accomplice’s out-of-court statements . . . .”].) In this case, counsel should have taken steps to ensure that the jury did not rely on Miller’s testimony or pretrial statements to police absent corroboration. Priorto trial, defense counsel moved for severancein large part because of these prior statements, as well as a concern about conflicting defenses. (3 CT 478-490.) Thus, there was no reasonable explanation for counsel wanting the jury to consider Miller’s testimony or pretrial statements. And defense counsel himself made this clear, when he strenuously objected to the prosecutor’s plan to play Miller’s statements before both juries, telling the trial court Miller’s claims that the victims were begging was “overtly prejudicial evidence”that would create an “insurmountable” obstacle. (13 RT 1953-1957.) Finally, in his closing argument to the jury, defense counsel referencedthe trial court’s partial 292 accomplice instruction in arguingthat the jury should notbelieve Miller: “We saw Anthony Miller testify. And, you know,I have been doingthis for 18 years, andI tried to keep track of what Anthony Miller was doing, andI have no idea. And guess it’s helpful and that’s why the court gives you these kind of instructions, that because he is an accomplice, things that he says that tend to criminalize Jean Pierre, you know, you can’t arbitrarily disregard them,butyoureally, really have to look closely at what they say.” (19 RT 2763-2764.) Clearly, given defense counsel’s stated position, his failure to request proper instructions was anything but a reasonable tactic. Proper corroboration instructions as to Miller’s testimony and prior statements could only have benefitted Mr. Rices. Counsel’s failure to seek such an instructionsfell below an objective standard ofcare. 2. Reversal of the penalty phase is required becausethere is a reasonable probability that but for counsel’s error, at least one juror would have votedforlife. In assessing whether counsel’s error requires reversal, the question is whether the error “undermine[s] confidence in the outcomeofthe case.” (Strickland v. Washington, supra, 466 U.S.at p. 694.) In the context of prejudice, if absent the error even one juror could have reached a different result -- resulting in a hung jury -- that is a “more favorable verdict” and reversalis required. (See Wiggins v. Smith, supra, 539 U.S.atp. 293 537 [finding prejudice under Strickland where absent counsel’s error at the penalty phase of a capital trial “there is a reasonable probability that at least one juror would have struck a different balance” and votedforlife].) Here, for the very samereasonsset forth in Argument XVI-D above,the absence of proper corroboration instructionsasto this critical aggravating evidence undermines confidence in the outcomeofthe penalty phase and requires a new trial. Not only did the jury hear Miller’s uncorroborated duress defense -- which was powerful enoughto result in a mistrial from Miller’s jury -- the jury also heard his devastating (and uncorroborated) statements about the victims’s last words. Moreover, as discussed above, the prosecutor took full advantage of this evidence,telling the jury that this alone merited death. (19 RT 2748.) Reversal of the penalty is required. 294 XVII. THE TRIAL COURT’S ERRONEOUS DENIAL OF THE NEW TRIAL MOTION REQUIRES A NEW PENALTY PHASE. . A. The Relevant Facts. 1. The gang evidenceprior to andattrial. Prior to trial, defense counsel moved to exclude any reference to Mr. Rices’s alleged past membership or association with anygangs. (3 CT. 703-705.) Defense counsel explained that the past contact, if any, was too remote to be relevantto the determination of whether Mr. Rices should live or die. (/bid.) Additionally, counsel explainedthat this particular type of evidence was highly prejudicial and would underminethe jury’s ability to fairly determine the penalty. (See 3 CT 705.) Forits part, the state made clear that it did not plan on introducing this type of evidence. Thus, the prosecutor assured defense counsel and the court that “[w]e don’t plan to elicit any gang evidenceas far as the defendant being in a gang.” (4 RT 609.) The trial court confirmed thatthe state did “not have an objective of attempting to establish that any of the incidents . . . include an overt gangaffiliation.” (4 RT 610.) The trial court repeated that “there is not going to be an objective of establishing any form of gangaffiliation.” (Ibid.) 295 All of that changed, however, whenthe state elected to call Mr. Rices’s jury to appear for the direct and cross-examination of codefendant Anthony Miller. Under direct-examination, Miller told both juries that he and many other people wereafraid of Mr. Rices because Mr. Rices was “[a] gang member[of] a very high status.” (13 RT 1939.) Defense counsel immediately objected. (13 RT 1939.) Thetrial court instructed the Rices jury that it could not consider this evidence. (13 RT 1940.) Simultaneously, however, the court instructed the Miller jury that it was free to consider this evidence. ([bid.) Defense counsel then movedfor a mistrial. (13 RT 1945.) Counsel madeclear that this evidence violated the court’s in liminae ruling, and he explained that the highly prejudicial nature of gang evidence madethis onebell that could not be unrung. (bid.) Thetrial court denied the motion. ([bid.) 2. The “bragging” evidence priorto andat trial. Police first heard Mr. Rices’s name from Dwayne Hooks. (See 2 CT 236-237.) Hookswasarrested for robbing a Washington Mutual bank. (1 PRT 55-56.) When he 296 was arrested, Hooks had a Crimestopperscard in his wallet. (1 PRT 81-82; 2 CT 201.) Hooks was aware there was a $100,000 reward in the Granadaliquor store murders. (1 CT 96.) Hooks eventually told police that Mr. Rices discussed the liquor store murdersat Hooks’s baby showerin late June 2007. (1 PRT 39.) Hooks claimed that the mannerin which Mr. Rices described the crime was “braggadocious.” (1 PRT 42.)*° Defense counsel made clear that he based his penalty phase strategy on keeping this evidence out. (15 RT 2367.) Thus, he explained that he agreed to enter into stipulations with respect to the testimony of the two witnesses who wouldtestify to the bragging issue -- Debbie Mays and Dwayne Hooks. (Ibid.) 35 In exchangefor his cooperation, Mr. Hooks received more than just the promise of reward money. First, Hooks was sentenced to one day injail with credit for time served for his rolein robbing a bank. (1. PRT 59-60.) But Hooks also had a prior conviction for lewd andlasciviousacts against his youngersister. (1 PRT 47.) Additionally, Hooks attempted to forcibly sodomize his cellmate at the California Youth Authority. (1 PRT 46-47.) As such, Hooks was subject to both lifetime sex offender registration, as well as mandatory placement on the Megan’s Law website. (See Pen. Code §§ 290, subd. (c), 290.46, subd. (b)(2)(G)-(H).) However, the prosecutor arranged for Hooks to be removed from the Megan’s Law website altogether. (1 PRT 65-66. See Pen Code § 290.46, subd. (a)(1) [mandating placement on Megan’s Law website].) 297 Thetrial court refused to allow this “bragging” evidence to comein at the penalty phase. (4 RT 655.) Rebuffing the state’s repeated argumentsthat this evidence was germaneto an alleged “lack of remorse,” the trial court wasclear: “T’m disagreeing with the People and their argumentthat regardless of how muchtime elapsed, the words themselvesreflect an attitude at the time of the shooting. I’m making a finding that too much time has elapsed for[the alleged bragging] to be automatically characterized as overt remorselessness that would be immediately a part of the crime.” (4 RT 665.) The court indicated this evidence might become admissible if lingering doubt became an issue, something that counsel for Mr. Rices assured the court would not occur. (4 RT 664-666.) Trial counsel for Mr. Rices followed through on this promise; he made clear in his opening statements that Mr. Rices was guilty. (9 RT 1350.) Notwithstanding the court’s straightforward in limine ruling, the bragging evidence-- like the gang evidence discussed above -- madeits way into trial. In fact, the jury heard referencesto this evidence directly from Detective James Hoefer. Hoeferfirst testified before Mr. Miller’s separate jury. (12 RT 1750.) He was later called before the Rices jury. After describing portions of the surveillance video in which it appeared Ms. Mattia’s feet moved after she wasshot,the following exchange 298 occurred: “(Prosecutor]: “THoefer]: “{Prosecutor]: “MR. WOLFE: “THE COURT: Andthat was information that you then later heard from other people, such as Dwayne Hooks? Yes. We eventually received information from witnesses whostated that Mr. Rices bragged about-- Mr. Hoefer-- Motionto strike, your honor. Hold on just a second. [para.] This is difficult, ladies and gentlemen. I’m going to ask [the prosecutor] to lead the investigator. There’s certain things that I’ve excludedin termsof his description of what other people have said becauseit’s technically hearsay. {para.] Mr. [Prosecutor], I’m striking the word that you cut him off on, ‘bragged.’ It is to be disregarded.” (15 RT 2361-2362.) Hoefer then went on to confirm that the surveillance video of the crime confirmed the “stipulations of Debbie Mays and Dwayne Hooks and of Rodney Hodges. . . that Mr. Rices said the female victim’s feet flew into the air... .” (15 RT 2362.) Defense counsel again movedfor a mistrial. (15 RT 2366.) Counsel explained that “Detective Hoefer has been here since the beginningofthe trial,”’ and “he should have been well aware that bragging was not to comein before the Rices jury.” (Ibid.) Counsel explained: 299 “{Hoefer] is the lead detective in this investigation. Heis a district attorney investigator. He has been present during the wholetrial, and he knew notto talk about brag. That’s been clear. All the stipulations that were generated in this case were generated with [--] one of the things in mind wasto removethe issue of bragging from the Rices jury.” (15 RT 2367.) Tohis credit, the prosecutor apologized to the court. (15 RT 2367.) The prosecutor acknowledged that Hoefer’s outburst was “unfortunate,” but he claimed it did not merit a mistrial. (Ibid.) Thetrial court found that Hoefer’s reference to this previously excluded evidence was“unintentional” and denied the mistrial motion (15 RT 2368-2369.) 3. The new trial motion. Following the death verdicts, defense counsel for Mr. Rices moved for a new penalty phase trial. (6 CT 1296-1325.) Among otherthings, counsel argued that a new penalty phase was required because of the improperreferences to both Mr. Rices’s alleged gang connectionsandthe alleged bragging. (6 CT 1310-1316.) The state opposed the new trial motion. Asto the gang reference, the state argued that gang evidence wasnotspecifically listed amongthe list of factors the jury could 300 consider in aggravation, and thus the jury could not considerit. (6 CT 1371.) Further, the state arguedthat the trial court should presumethe jury followedits instruction not to considerthis evidence. (bid.) Finally, citing the testimony of defense expert Dr. Minagawaabout Mr. Rices’ past gangaffiliation, the state argued the trial court should deny the new trial motion because it was Mr. Rices whoelectedto “elicit{] such testimony.” (6 CT 1372-1373.) Asto the bragging references, the state argued again that the court’s admonition “obviated any harmful effect.” (6 CT 1374.) The state further argued that because Hoefer was cutoff, “there was no context or understanding on the jury’s part what it was Rices was bragging about.” (Ibid.) Finally, the state claimed that because this evidence would have been admissible had Mr. Ricesnotpled guilty, “it [ ] would not have been so prejudicial as to warrant a newtrial.” (6 CT 1375.) Thetrial court denied the new trial motion. Thetrial court ruled that the “fleeting” references to the gang and bragging evidence “did not deprive [Mr. Rices] of a fair trial.” (20 RT 2807-2808, 2813.) Asdiscussed below,the trial court got it wrong. Defense counsel’s motion for a new trial should have been granted. Reversal of the penalty phase is required. 301 B. Standard Of Review. Whena trial court grants a new trial motion, and the state appeals, the appropriate standard of review is the deferential abuse of discretion standard. (See People v. Ault (2004) 33 Cal.4th 1250, 1265.) This makes perfect sense. After all, the trial court is most “familiar with the evidence, witnesses and proceedings, and is therefore in the best position to determine whether, in view of all the circumstances, justice demandsa retrial.” (Id. at p. 1261.) It would makelittle sense then for a reviewing court, which is necessarily less “familiar with the evidence, witnesses and proceedings,” to disturb this ruling when a mainrole of the reviewing court is “determine whether a miscarriage of justice occurred.” (Cal. Const., art. VI, § 13. See People v. Ault, supra, 33 Cal.4th at pp. 1260-1261.) Review of an order denying a newtrial motion is a different matter. Subjecting the trial court’s denial of a new trial motion to the deferential abuse of discretion standard would function as an abrogation of a reviewing court’s duty to “conduct an independent examination of the proceedings to determine whether a miscarriage of justice occurred.” (Cal. Const., art. VI, § 13.) While this Court has never explicitly resolved the question, recent decisions indicate this Court should engage in independent review to determine the propriety of the trial court’s ruling denying the new trial motion. (See People v. Nesler 302 (1997) 16 Cal.4th 561, 582, fn. 5 [applying de novo review to assesstrial court’s denial of newtrial motion]; See also People v. Ault, supra, 33 Cal.4th at pp. 1260-1262 [collecting cases].) Even when an abuse of discretion standard is employed,there are limits. This Court has noted that “[d]iscretion is abused when the court exceeds the bounds of reason, all of the circumstances being considered.” (People v. Bradford (1976) 17 Cal.3d 8, 20.) Other courts have written that discretion is abused only whenthe trial court’s ruling was “arbitrary, whimsical or capricious.” (See, e.g., People v. Linkenauger (1995) 32 Cal.App.4d 1603, 1614.) With respect, neither of these phrasingsis particularly helpful or, indeed, even accurate. While “exceed[ing] the bounds of reason,” or making an “arbitrary, whimsical or capricious” ruling will certainly be sufficient for a reviewing court to concludea trial court has abusedits discretion, these are certainly not the necessary requirements for a conclusion that discretion has been abused. Indeed, some courts havecriticized these colorful descriptions of the abuse of discretion standard in search of principles that can actually be used in practice. (See People v. Jacobs (2007) 156 Cal.App.4th 728, 736; City ofSacramento v. Drew (1989) 207 Cal.App.3d 1287, 1297 [criticizing the “arbitrary, whimsical or capricious”test as “pejorative boilerplate”].) Putting aside colorful 303 descriptions and “pejorative boilerplate,” the ultimate question is whetherthe trial court’s decision was unreasonablein light of the governing law andthe facts presented. (People v. Jacobs, supra, 156 Cal.App.4th at pp. 737-738.) Butthere is really no reason to decide the issue here. Even under the more deferential abuse of discretion standard, the trial court erred in denying the newtrial motion. C. The Trial Court’s Improper Denial Of Defense Counsel’s New Trial Motion Requires A New Penalty Phase. 1. The gang evidence. Mr. Rices will begin with the improper reference to the gang evidence. As discussed above, codefendant Anthony Miller claimed that Mr. Rices was “[a] gang member[of] a very high status.” (13 RT 1939.) Thetrial court told the Ricesjury to disregard this comment. (13 RT 1940.) But the court simultaneously told the Miller jury that it could consider this commentas valid evidence. ([bid.) Given that the Miller jury wasallowed to consider this evidence, there was no reason for the Ricesjury to believe the evidence was somehowinherently unreliable. 304 Thereis, of course, no doubtthat admission of the gang evidence was improper. After all, counsel for Mr. Rices made very clear during in limine motionsthat he objected to any gang evidence. (3 CT 703-705.) And the state had agreed notto elicit such . evidence. (4 RT 609.) So there is no doubt that injection of the gang evidence waserror. Asthestate correctly noted in responding to the new trial motion, however, the trial court told jurors to disregard this evidence. (6 CT 1371.) According tothestate, this rendered any error harmless. (6 CT 1371.) Thestate is wrong. To be sure, of course, jurors are normally presumed to follow such limiting instructions. (LeMons v. Regents of University of California (1978) 21 Cal.3d 869, 878.) But as the United States Supreme Court has concludedin a similar context, the law is a bit more nuanced. While courts can generally assume a jury will follow a trial court’s instruction to ignore certain information, “there are some contexts in which the risk that the jury will not, or cannot, follow instructions is so great, and the consequencesoffailure so vital to the defendant, that the practical and human limitations of the jury system cannotbe ignored.” (Bruton v. United States (1968) 391 U.S. 123, 135.) Whereajury has seen or heard something that could be highly prejudicial to a defendant, courts have long recognized that curative instructions may not be sufficient. 305 (See, e.g., United States v. Hale (1975) 422 U.S. 171, 175, n.3 [introduction of evidence that defendant remained silent was not cured by jury instruction telling jurors to ignore the evidence]; Bruton v. United States, supra, 391 U.S. at pp. 125-126 [where evidence against defendant was“not strong,” reviewing court could not rely on instruction advising jurors to ignore prejudicial and inadmissible evidence]; Jackson v. Denno (1964) 378 U.S. 368, 387-388 [refusing to assume jury would follow instruction advisingit to disregard involuntary confession of defendant].) The Supreme Court has proposed a commonsense guide: in deciding the effect of a curative instruction which advises a jury to disregard whatit has seen or heard, the question is “plain and simply, whetherthe jury can possibly be expected to forget it in assessing the defendant’s guilt.” (Richardson v. Marsh (1987) 481 U.S. 200, 208.) California courts have applied this test in practice; when information aboutprior criminal conductis conveyedto the jury, a curative instruction -- asking jurors to simply ignore information they heard -- is an inadequate basis on which to presume jurors would ignore whatthey had been told. (See,e.g., People v. Jacobs (1984) 158 Cal.App.3d 740, 745-746; People v. Galloway (1979) 100 Cal.App.3d 551, 562; People v. Young (1978) 85 Cal.App.3d 594, 602-603; People v. Glass (1975) 44 Cal-App.3d 772, 781; People v. Schiers (1971) 19 Cal.App.3d 102, 114; People v. Laursen (1968) 264 Cal.App.2d 932, 938.) 306 This principle has even more application here, where althoughthe trial court told the Rices jury it could not consider the gang references as evidence, it told the Miller jury -- in the presence of the Rices jury -- that it could consider this very same evidence. Giventhe inherently prejudicial nature of this evidence, and the fact that the Rices jury knew that the evidence wasreliable enough for the Miller jury, the trial court’s admonishmentto the Rices jury was insufficient to cure the error. Andthere should be no dispute as to the inherently prejudicial nature of the improper remark. After all, “[t]he word ‘gang’ . . . connotes opprobrious implications. . . . [T]he word ‘gang’ takes on a sinister meaning whenit is associated with activities.” (People v. Perez (1981) 114 Cal.App.3d 470, 479.) As this Court has recognized, gang evidenceis often “so extraordinarily prejudicial . . . that it threatens to sway the jury to convict regardless of the defendant’s actual guilt.” (People v. Hernandez (2004) 33 Cal.4th 1040, 1049; see also People v. Cox (1991) 53 Cal.3d 618, 660.) In short, irrelevant gang evidence has no place in a criminaltrial. (See The Constitutional Failure of Gang Databases (Nov. 2005) 2 Stanford J. Civ. Rights & Civ. Liberties 115. Cf People v. Bojorquez (2002) 104 Cal.App.4th 335, 345.) This is particularly true in a capital trial where, because death is different, the procedures which lead to a death sentence must meet an enhancedlevel of reliability. (See, e.g., Beck v. Alabama, supra, 447 U.S. at p. 638; Gardner v. Florida, supra, 430 U.S.at p. 357.) 307 Thestate also argued there could be no harm from the gang reference because the jury was provided with a list of aggravating factors and “[nJo gang reference was included.” (6 CT 1371.) This argument misses the mark. Asthis Court has recognized, gang evidence can be relevantto factor (a), the circumstances of the crime. (People v. Champion (1995) 9 Cal.4th 879, 908,fn. 6, overruled on another point in People v. Combs (2004) 34 Cal.4th 821, 860.) Indeed, as the United States Supreme Court has recognized, “[t]he ‘circumstances of the crime’ factor can hardly becalled ‘discrete.’ Jt has the effect of rendering all the specified factors nonexclusive ....” (Brown v. Sanders (2006) 546 U.S. 212, 222.) Put simply, the jury was more than able to consider the gang evidence underthe “nonexclusive” instructions it had been given. Finally, this Court should also reject the state’s argumentthat the gang evidence did not merit a new penalty phase because a defense expert in mitigation referenced the evidence. This argument ignores a doctrine this Court has recognized for nearly a century: the defensive acts doctrine. Under the defensive acts doctrine, a lawyer who receives an adverse ruling from trial court does not undercut or waive his objection to that ruling by taking defensive acts to make thebestof a bad situation. (See, e.g., People v. Turner (1990) 50 Cal.3d 668, 704-705 n.18; People v. Scott (1978) 21 Cal.3d 284, 291; 308 People v. Sam (1969) 71 Cal.2d 194, 207-208; Jamesonv. Tully (1918) 178 Cal. 380, 384. See People v. Willoughby (1985) 164 Cal.App.3d 1054, 1064; McLaughlin v. Sikorsky Aircraft (1983) 148 Cal.App.3d 203, 209; Hoel v. City ofLos Angeles (1955) 136 Cal.App.2d 295, 310.) Pursuantto this doctrine, a reviewing court can properly consider a defendant’s objection to the admission of certain evidence even thoughas a defensive act the defendant himself introduces the evidence. (People v. Turner, supra, 50 Cal.3d at pp. 704-705, n.18.) Similarly, a reviewing court can properly consider a defendant’s objection to the admission of certain evidence even thoughas a defensiveact the defendant himself relied on this evidence in closing argument to contend he was not guilty. (People v. Scott, supra, 21 Cal.3d at p. 291.) Here,thetrial court had overruled defense counsel’s request for a mistrial when the gang evidence waspresentedto the Rices jury. (13 RT 1945.) The defense expert’s testimony wasnot introduced until after the trial court’s ruling. (18 RT 2654) Underthe defensive acts doctrine this does not impact consideration of this claim. In the final analysis, the inflammatory gang evidence undermined whatthetrial court itself found to be “very persuasive” evidence in mitigation. (20 RT 2817.) The 309 gang evidence cannot be deemed harmless. (See Lisenba v. California (1941) 314 U.S. 219, 236 [irrelevant evidence can violate due process}; Chapman v. California, supra, 386 U.S.at p. 24; People v. Brown (1988) 46 Cal.3d 432, 448.) But there is more. 2. The bragging evidence. As discussed above, defense counsel basedhistrial strategy to a large extent on keeping the bragging evidence out. (15 RT 2367.) Thus, hestipulated to the testimony of two prosecution witnesses to try and avoid this prejudicial testimony. (Ibid.) And on defense counsel’s motion,priorto trial the court refusedto allow thestate to present this evidence. (4 RT 655.) Butall of that changed when Detective Hoefertold the jury that Mr. Rices was “bragging” aboutthe victim’s feet moving after the shooting. Like any other party to litigation, prosecutors may nottry to introduce evidence whicha trial court has specifically ruled inadmissible. (See People v. Aragon (1957) 154 Cal.App.2d 646, 658.) It is also clear that prosecutors have a duty to warn their witnesses against offering such inadmissible and prejudicial testimony. (See People v. Stinson (1963) 214 Cal.App.2d 476, 481.) Thus,it is entirely improper for prosecution witnesses to inject evidentiary harpoonsinto a case. This is so regardless of whether the testimony is volunteered by the witness during direct or cross examination. (See, e.g., People v. 310 Stinson, supra, 214 Cal.App.2d at pp. 480-481; White v. State (Fla. 1978) 365 So.2d 199, | 200; Bruner v. State (Okla. 1980) 612 P.2d 1375, 1378-1379; Wilson v. State (Ala. 1980) 386 So.2d 496, 500; State v. Dugan (Ariz. 1980) 508 P.2d 771,774.) And of course, prosecutorial misconductin failing to “guard against”prejudicial testimony “need not be intentional to be harmful.” (People v. Parsons (1984) 156 Cal.App.3d 1165, 1171; People v. Cabrellis (1967) 251 Cal.App.2d 681, 688. See also People v. Bentley (1955) 131 Cal.App.2d 687, 690 [prosecutor has a “duty to see that the witness volunteers no statementthat would be inadmissible”], disapproved on another point by People v. White (1958) 50 Cal.2d 428.) In this case, Mr. Rices’s jury heard claims that Mr. Rices was “bragging” about the murders from Detective Hoefer. (15 RT 2361-2362.) Thestate’s claim that “there was no context or understanding on the jury’s part what it was [Mr.] Rices was bragging about” was simply untrue. (6 CT 1374.) Hoefer first described how the Ms. Mattia’s feet movedafter she was shot. (15 RT 2361.) The prosecutor then asked Hoeferif he confirmed that the victim’s feet moved bytalking to other people, such as Dwayne Hooks. (/bid.) Hoefer then said he had heard from other people that Mr. Rices had “bragged.” ([bid.) Immediately after he was cut off, Hoefer went on to explain the surveillance video confirmed the “stipulations of Debbie Mays and Dwayne Hooksand of Rodney Hodges. . . that Mr. Rices said the female victim’s feet flew into the air. . . .” 311 (15 RT 2362.) The state’s claims that “Hoefer did not say what it was that Mr. Rices was bragging about” simply ignores the entire context of the questions and answers which were being given. Andthe trial court’s admonition can hardly be called powerful in this case. The trial court simply told the jury that “[t]here’s certain things that I’ve excludedin terms of his description of what other people have said because it’s technically hearsay. [para.] Mr. [Prosecutor], I’m striking the word that you cut him off on, ‘bragged.’ It is to be disregarded.” (15 RT 2361-2362.) Of course, this was more than “technically hearsay.” Defense counsel based his strategy in keeping this highly inflammatory evidenceout. When viewed inisolation or in conjunction with the improper gang evidence, Hoefer’s improper bragging comment wasprejudicial. (Lisenba v. California, supra, 314 US.at p. 236; Chapmanv. California, supra, 386 U.S. at p. 24; People v. Brown, supra, 46 Cal.3d at p. 448.) Reversal is required. 312 XVII. BECAUSE THE TRIAL COURT WAS PRESENTED WITH CONFIDENTIAL INFORMATION BOTHABOUTTHE CRIME AND — MR. RICES, AND BECAUSE THE TRIAL COURT REFUSED TO ALLOW MR.RICES ACCESS TO THIS EVIDENCE, A NEW SECTION 190.4 HEARING IS REQUIRED. The Relevant Facts. Generally, discovery in a criminal case is governed by Penal Codesection 1054,et seq. Section 1054.7 of the Penal Code permits either party to make an in camera showing to explain whyit should be excused from disclosing certain evidence which would otherwise have to be disclosed.”® In this case, on July 30, 2008 -- well before trial began -- thestate filed four motions pursuant to Penal Code section 1054.7. (8 CT 590-595, 675-676.) In relevant part, in these motionsthe state sought orders permitting it not to disclose to counsel for 36 In relevant part, section 1054.7 provides as follows: “Upon the request of any party, the court may permit a showing of good cause for the denial or regulation of disclosures, or any portion of that showing, to be made in camera. A verbatim record shall be made of any such proceeding. If the court enters an order granting relief following a showing in camera,the entire record of the showing shall be sealed and preserved in the records of the court, and shall be madeavailable to an appellate court in the event of an appeal or writ. In its discretion, the trial court mayafter trial and conviction, unseal any previously sealed matter.” 313 Mr. Rices (1) the identity and statements of “John Doe #1”and (2) statements from various in-custody inmates pertaining to inculpatory statements made by Mr. Rices. (Ibid.) Defense counsel opposed each of these motions. (3 CT 686-700.) On November 17, 2008 the court held in an in-camera proceeding from which defendant and his lawyers were excluded. (4 RT 684.) The court promised that a written ruling would follow. (4 RT 684.) The in-camera hearing is contained at sealed pages 686-706 of the Reporter’s Transcript. On November 26, 2008, the trial court issued its written ruling. The court granted the state’s motion permitting it not to disclose either the identity and statements of John Doe or the identity and statements of various in-custody inmates. (4 CT 769-770.) The court’s order makesclear it had reviewed “inculpatory information provided by John Doe”as well as “inculpatory information provided by these inmates... .” (4 CT 769, 770.) Ultimately, the jury sentenced Mr. Rices to death. (6 CT 1252.) Pursuant to Penal Code section 190.4, defense counsel moved for a reduction in the sentenceto life without parole. (6 CT 1328-1334.) Thetrial court denied this motion and sentenced Mr. Rices to die. (6 CT 1408-1411.) 314 B. The Trial Court’s Access To Confidential Information -- Which The Trial Court Itself Characterized As “Inculpatory” And Which Mr.Rices Could Not Confront, Deny Or Rebut -- Violated The Eighth Amendment And The DueProcess Clause. Whena state chooses to impose capital punishment, the Due Process Clause of the Fifth and Fourteenth Amendments and the Eighth Amendmentrequire procedures which insure the sentenceis not imposed in an unreliable mannerbut instead is based on complete and accurate information aboutthe defendant. (See, e.g., Lockett v. Ohio (1978) 438 U.S. 586, 604; Gardnerv. Florida (1977) 430 U.S. 349, 357.) Both the Eighth Amendmentand the Due Process Clause precludethe state from basing a death sentence on information which the defendant did not have a full opportunity to rebut. (See,e.g., Gardnerv. Florida, supra, 430 U.S. at p. 357.) Gardnerinvolveda situation very similar to this case. There, defendant was convicted of capital murder. The jury recommendeda life sentence. Under Florida law, however,trial courts are vested with power to modify the jury’s sentence. Pursuant to state law, the trial judge in Gardner was presented with information aboutthe case contained in a presentence report prepared by the probation department. (430 U.S.at p. 353.) Under Florida law,part of this report was confidential and had not been disclosed to defense counsel. (Ibid.) Thetrial court modified the jury’s sentence to death. Defense counselhadnot askedto see the portion of the confidential report, nor did the trial court 315 “qndicate there was anything of special importancein the undisclosed portion... .” (430 U.S.at p. 353.) Nevertheless, the Supreme Court found that defendant’s due process rights hadbeen violated because he was unableto rebut or confront the confidential information. (430 U.S.at p. 362.) The Supreme Court then rejected the state’s suggestion that it simply remandthe casefor the state reviewing court to perform harmlesserror analysis with the confidential report in hand; instead, the Supreme Court ruled that such a procedure “could not fully correct the error” because“it is possible that full disclosure, followed by explanation or argument by defense counsel” could have resulted in a different ruling by the trial court. (/bid.) Accordingly the case was remandedfor “further proceedingsat the trial court level... .” (Ibid.) The same result is compelled here. Here too the state presented evidenceto the trial court which waskept from the defense. Just as in Gardner, defendant wasnot given copies of these inculpatory statements and -- as a consequence-- was completely unable to rebut or respond to them. Indeed, this case is even stronger than Gardner -- where the trial court did not “indicate there was anything of special importance in the undisclosed portion....” (430 U.S.at p. 353.) In contrast, here thetrial court itself described the confidential evidence as “inculpatory.” (4 CT 769-770.) Moreover, andalso in contrast to Gardner,trial counsel here objected and tried to obtain the information. 316 Ironically, the trial court here was apparently aware of the danger of considering information which the defense did not have a chance to rebut. Thus, the trial judge had received a presentence report from the probation officer and was careful to state that he had conductedhis section 190.4 review “before I received a presentence report from the probationofficer.” (20 RT 2814.) The judge had also received a “confidential” section of the probation report which waslabeled “Victim addendum”andstated on the record he had “not reviewedthat.” (20 RT 2818.) In the context of both these documents the court emphasizedthatit had “considered only evidence presented to the jury.” (20 RT 2814.) Andthe court did not hear the victim impact statements until after ruling on the motion to modify the sentence. (20 RT 2819.) In the final analysis, the vice identified in Gardneris the risk that the court making the final decision will be influenced by information about the case or defendant which-- because it was confidential and not subject to the adversarial process -- may have been unreliable. That risk is present here when the court was exposed to “inculpatory” evidence aboutthe crime and the defendant. A new section 190.4(e) hearing is required. 317 XIX. BECAUSE THE CALIFORNIA CAPITAL SENTENCING SCHEMEIS UNCONSTITUTIONAL IN NUMEROUSRESPECTS, MR.RICES’S DEATH SENTENCE MUST BE REVERSED. In the capital case of People v. Schmeck (2005) 37 Cal.4th 240, the defendant presented a numberofattacks on the California capital sentencing scheme which had been raised and rejected in prior cases. As this Court recognized, a major purpose in presenting such argumentsis to preserve them for further review. (37 Cal.4th at p. 303.) This Court acknowledgedthat in dealing with these systemic attacks in past cases, it had given conflicting signals on the detail needed in order for a defendantto preserve these attacks for subsequent review. (37 Cal.4th at p. 303, n.22.) In order to avoid detailed briefing on such claimsin future cases, the Court held that a defendant could preserve these claims by “(i) identifying] the claim in the context of the facts, (ii) not[ing] that we previously have rejected the sameor a similar claim in a prior decision,and(iii) ask[ing] us to reconsiderthat decision.” (37 Cal4th at p. 304.) Mr. Rices has no wish to unnecessarily lengthen this brief. Accordingly, pursuant to Schmeck, Mr. Rices identifies the following systemic (and previously rejected) claims relating to the California death penalty scheme which require a new penalty phasein his case: 318 (1) Thetrial judge’s instructions permitted the jury to rely on defendant’s age in deciding if he wouldliveor die. (19 RT 2734.) This aggravating factor is unconstitutionally vague in violation of the Eighth Amendment and requires a new penalty phase. This Court has already rejected this argument. (People v. Ray (1996) 13 Cal.4th 313, 358.) The Court’s decision in Ray should be reconsidered. (2) California’s capital punishment scheme, as construed by this Court in People v. Bacigalupo (1993) 6 Cal.4th 457, 475-477, and as applied, violates the Eighth Amendmentandfails to provide a meaningful and principled wayto distinguish the few defendants who are sentenced to death from the vast majority who are not. This Court has already rejected this argument. (People v. Schmeck, supra, 37 Cal.4th at p. 304.) For the same reasonsset forth by the appellant in People v. Schmeck, supra, however, the Court’s decision should be reconsidered. (3) Penal Code section 190.3, subdivision (a) -- which permits a jury to sentence a defendantto death based on the “circumstancesof the crime”-- is being applied in a mannerthat institutionalizes the arbitrary and Capricious imposition of death. The jury in this case wasinstructed in accord with this provision. (19 RT 2733.) This Court has already rejected this argument. (People v. Schmeck, supra, 37 Cal.4th at pp. 304-305.) For the same reasonsset forth by the appellant in People v. Schmeck, supra, however, the Court’s decision should be reconsidered. (4) During the penalty phase, the jury was instructed it could consider criminal acts which involved the express or implied use of violence. (19 RT 2734.) The jurors were instructed they could notrely on this evidence unless it had been proven beyond a reasonable doubt. (19 RT 2737.) The jurors were told, however, that they could rely on this factor (b) evidence even if they had not unanimously agreed that the conduct had occurred. (19 RT 2737.) In light of the Supreme Court decision in Ring v. Arizona (2002) 536 U.S. 584, the trial court’s failure to require unanimity as to these crimes violated Mr. Rices’s Sixth Amendmentrightto a jury trial on the “aggravating circumstance[s] necessary for imposition of the death penalty.” (Ring, 536 U.S.at p. 609.) In the absence of a requirement of jury unanimity, defendant wasalso deprived of his Eighth Amendmentright to a reliable penalty phase determination. This Court has already rejected both these arguments. (People v. Lewis (2006) 39 Cal.4th 970, 1068.) The Court’s decision in Lewis should be reconsidered. 319 (5) Under California law, a defendant convicted of first degree murder cannot receive a death sentence unlessa jury (1) finds true one or more special circumstance allegations which render the defendantdeatheligible and (2) finds that aggravating circumstances outweigh mitigating circumstances. The jury in this case wasnottold that the second of these decisions had to be made beyond a reasonable doubt. This violated Mr. - Rices’s rights underthe Fifth, Sixth, Eighth and Fourteenth Amendments. This Court has already rejected this argument. (People v. Schmeck, supra, 37 Cal.4th at p. 304.) For the same reasonsset forth by the appellantin People v. Schmeck, supra, however, the Court’s decision should be reconsidered. (6) At the penalty phase,the trial court instructed the jury in accord with a standard instruction defining the statutory aggravating and mitigating factors. (19 RT 2733-2735.) This instruction was constitutionally flawed in five ways: (1) it failed to delete inapplicable sentencing factors,(2) it failed to delineate between aggravating and mitigating factors, (3) it contained vague andill-defined factors, (4) some mitigating factors were limited by adjectives such as “extreme”or “substantial,” and (5) it failed to specify a burden of proofas to either mitigation or aggravation. (Ibid.) Theseerrors, taken singly or in combination, violated Mr. Rices’s Fifth, Sixth, Eighth and Fourteenth Amendmentrights. This Court has already rejected these arguments. (People v. Schmeck, supra, 37 Cal.4th at pp. 304- 305; People v. Ray, supra, 13 Cal.4th at pp. 358-359.) The Court’s decisions in Schmeck and Ray should be reconsidered. (7) Because the California death penalty scheme violates international law - - including the International Covenant of Civil and Political Rights -- Mr. Rices’s death sentence must be reversed. This Court has already rejected this argument. (People v. Schmeck, supra, 37 Cal.4th at p. 305.) For the same reasonsset forth by the appellant in People v. Schmeck, supra, however, the Court’s decision should be reconsidered. To the extent respondent argues that any of these issues is not properly preserved because Mr. Rices has not presented them in sufficient detail to this Court, Mr. Rices will seek leave to file a supplemental brief more fully discussing these issues. 320 CONCLUSION Forall these reasons the case should be reversed for a new penalty phase. parep:__//eliq 321 Respectfully submitted, ONNeem CliffGérdner Attorney for Appellant Jean Pierre Rices APPENDIX A APPENDIX A ANALYSIS OF QUESTION 4 FROM THE JURY QUESTIONNAIRE Juror Number 298 Juror Number 4 244 11 Juror Number 14 185 59 138 155 71 67 57 7 4 108 47 13 115 8 164 72 106 231 142 118 32 201 171 103 Unidentifiable Area/Neighborhood San Diego County Citation 14 CT 3154 Non-East County Area/Neighborhood Citation Spring Valley Fashion Valley San Carlos East County Area/Neighborhood El Cajon La Mesa Julian Rancho San Diego Ramona Lakeside E] Cajon Fletcher Hills, El Cajon East County Spring Valley Spring Valley Rancho San Diego East County Spring Valley Boulevard East Spring Valley Lemon Grove La Mesa El Cajon (Olive Hills) Ramona Ramona Mt. Helix Alpine Spring Valley 8 CT 1638 14 CT 3329 18 CT 4206 Citation 7 CT 1440 7 CT 1462 7 CT 1484 7 CT 1506 7 CT 1528 7 CT 1550 7 CT 1572 7 CT 1594 8 CT 1616 8 CT 1638 8 CT 1682 8 CT 1704 8 CT 1726 8 CT 1748 8 CT 1770 15 CT 3504 8 CT 1792 9 CT 1814 9 CT 1835 9 CT 1857 9 CT 1879 9 CT 1901 9 CT 1923 9 CT 1945 9 CT 1967 316 200 116 218 174 144 49 20 253 281 82 222 233 289 211 250 83 213 143 247 153 313 307 52 23 104 184 17 204 162 12 263 21 187 140 227 91 170 133 92021 [El Cajon] Fletcher Hills El Cajon El Cajon Lakeside, CA Fletcher Hills Dulzura/East County E] Cajon National City/Spring Valley E] Cajon Lakeside La Mesa Lemon Grove El Cajon East of El Cajon Rancho San Diego El Cajon Rancho San Diego La Mesa Ramona Santee Lakeside Lemon Grove Lakeside Fletcher Hills/El Cajon Spring Valley East County, Lakeside La Mesa La Mesa La Mesa La Mesa La Mesa Casa de Oro Ramona Ramona East La Mesa El Cajon Lakeside La Mesa 9 CT 1989 9CT 2011 © 9 CT 2033 9 CT 2055 10 CT 2077 10 CT 2099 10 CT 2121 10 CT 2143 10 CT 2165 10 CT 2186 10 CT 2208 10 CT 2230 10 CT 2251 10 CT 2273 10 CT 2295 10 CT 2317 11 CT 2339 11 CT 2361 11 CT 2383 11 CT 2405 11 CT 2427 11 CT 2449 11 CT 2471 11 CT 2493 11 CT 2515 11 CT 2537 11 CT 2559 11 CT 2581 12 CT 2603 12 CT 2625 12 CT 2647 12 CT 2669 12 CT 2691 12 CT 2713 12 CT 2735 12 CT 2757 12 CT 2779 12 CT 2801 12 CT 2823 12 CT 2845 159 269 34 134 92 146 294 38 90 175 85 302 35 208 224 102 241 299 154 188 260 62 190 287 121 167 164 293 101 163 209 288 105 194 183 259 99 303 88 Lakeside La Mesa Lakeside Santee Santee Santee Rural El Cajon Spring Valley Spring Valley El Cajon Lakeside Ramona Spring Valley El Cajon, off Madison East County, Dehesa Santee El Cajon La Mesa Spring Valley Lakeside Hidden MesaEstates Fletcher Hills (El Cajon) El Cajon Lemon Grove El Cajon El Cajon La Mesa/Rolando East Crest Santee Lakeside Spring Valley Santee Lemon Grove El Cajon Lemon Grove Fletcher Terrace Fletcher Hills Casa de Oro Spring Valley 13 CT 2867 13 CT 2889 © 13 CT 2911 13 CT 2933 13 CT 2955 13 CT 2977 13 CT 2999 13 CT 3022 13 CT 3044 13 CT 3066 13 CT 3088 13 CT 3110 14 CT 3132 14 CT 3176 14 CT 3197 14 CT 3219 14 CT 3241 14 CT 3263 14 CT 3285 14 CT 3307 14 CT 3350 14 CT 3372 15 CT 3394 15 CT 3416 15 CT 3438 15 CT 3460 15 CT 3482 15 CT 3504 15 CT 3526 15 CT 3548 15 CT 3570 15 CT 3592 15 CT 3614 15 CT 3636 16 CT 3658 16 CT 3680 16 CT 3702 16 CT 3724 16 CT 3746 16 CT 3768 282 125 197 195 207 157 107 60 262 126 236 219 172 315 135 202 166 44 127 295 74 312 36 29 11 246 258 39 292 165 196 274 66 265 30 279 2367 89 19 272 Lakeside Santee Ramona La Mesa Santee Santee Ramona El Cajon El Cajon/Rancho San Diego Unincorporated El Cajon Julian Unincorporated El Cajon El Cajon Lakeside Santee Santee Spring Valley Santee Spring Valley Granite Hills Ramona Granite Hills El Cajon 91942 [La Mesa] La Mesa Alpine La Mesa Santee Rancho San Diego Julian La Mesa Santee Alpine La Mesa Lakeside Ramona East El Cajon Spring Valley Spring Valley El Cajon 16 CT 3790 16 CT 3812 16 CT 3834 16 CT 3856 16 CT 3878 16 CT 3900 17 CT 3922 17 CT 3944 17 CT 3965 17 CT 3987 17 CT 4009 17 CT 4030 17 CT 4052 17 CT 4074 17 CT 4096 17 CT 4118 17 CT 4140 17 CT 4162 18 CT 4184 18 CT 4228 18 CT 4250 18 CT 4272 18 CT 4294 18 CT 4316 18 CT 4338 18 CT 4360 18 CT 4382 18 CT 4404 18 CT 4426 19 CT 4448 19 CT 4470 19 CT 4492 19 CT 4514 19 CT 4536 19 CT 4558 19 CT 4580 19 CT 4601 19 CT 4623 19 CT 4645 19 CT 4667 300 48 256 308 130 113 95 122 61 252 161 284 238 75 119 10 80 40 235 275 46 212 26 245 94 37 310 100 286 158 86 266 69 51 280 290 84 255 Santee Rancho San Diego El Cajon La Mesa Lemon Grove Eastern (El Cajon) Santee El Cajon La Mesa Jamul Rancho San Diego El Cajon-Moving to Ramona Alpine El Cajon Flinn Springs E] Cajon Santee East County Alpine Lemon Grove Fletcher Hills La Mesa Santee Santee La Mesa El Cajon Julian Ramona Santee Lakeside Lemon Grove Spring Valley El Cajon Lemon Grove La Mesa Lakeside Ramona Spring Valley Spring Valley Santee La Mesa 19 CT 4689 20 CT 4711 © 20 CT 4733 20 CT 4755 20 CT 4777 20 CT 4799 20 CT 4821 20 CT 4843 20 CT 4865 20 CT 4887 20 CT 4909 20 CT 4931 20 CT 4953 21 CT 4975 21 CT 4997 21 CT 5019 21 CT 5041 21 CT 5063 21 CT 5085 21 CT 5107 21 CT 5129 21 CT 5151 21 CT 5173 21 CT 5195 21 CT 5217 22 CT 5239 22 CT 5261 22 CT 5283 22 CT 5305 22 CT 5327 22 CT 5349 22 CT 5371 22 CT 5393 22 CT 5415 22 CT 5437 22 CT 5459 22 CT 5481 23 CT 5503 23 CT 5525 23 CT 5547 216 226 81 223 129 261 240 31 270 112 304 151 242 15 249 309 145 296 239 191 179 178 137 291 314 173 58 182 41 45 181 232 230 76 87 93 217 234 156 109 East County Lakeside El Cajon Alpine Alpine Spring Valley La Mesa/Lake Murray El Cajon El Cajon Lemon Grove El Cajon El Cajon/Lakeside Lakeside La Mesa Lakeside La Mesa East County Lakeside El] Cajon El Cajon La Mesa La Mesa La Mesa El Cajon Granite Hills Santee El! Cajon (Granite Hills) Rancho San Diego Spring Valley Santee Lakeside El Cajon Alpine Jamul Lemon Grove San Diego/Mt. Woodson El Cajon Santee La Mesa Lakeside 23 CT 5569 23 CT 5591 23 CT 5613 23 CT 5635 23 CT 5657 23 CT 5679 23 CT 5701 23 CT 5723 23 CT 5745 24 CT 5767 24 CT 5789 24 CT 5811 24 CT 5833 24 CT 5855 24 CT 5877 24 CT 5899 24 CT 5921 24 CT 5943 24 CT 5964 24 CT 5986 24 CT 6008 25 CT 6030 25 CT 6052 25 CT 6074 25 CT 6096 25 CT 6118 25 CT 6140 25 CT 6162 25 CT 6184 25 CT 6206 25 CT 6228 25 CT 6250 26 CT 6272 26 CT 6294 26 CT 6316 26 CT 6338 26 CT 6360 26 CT 6382 26 CT 6404 26 CT 6426 301 147 169 311 189 228 251 28 160 120 276 124 64 Boulevard Jamul Lakeside Lakeside Santee Lakeside La Mesa El Cajon La Mesa El Cajon El Cajon El Cajon El Cajon 26 CT 6448 26 CT 6470 26 CT 6492 27 CT 6514 27 CT 6536 27 CT 6558 27 CT 6580 27 CT 6602 27 CT 6624 27 CT 6646 27 CT 6668 27 CT 6690 27 CT 6712 CERTIFICATE OF COMPLIANCE I certify that the accompanying non-redactedbrief is double spaced,that a 13-point proportional font wasused, andthat there are 74,214 wordsin the brief. Dated: November18, 2014 ? | |/ How~ chefGatdner CERTIFICATE OF SERVICE I, the undersigned, declare as follows: I am a citizen of the United States, over the age of 18 years and not a party to the within action. My business address is 1448 San Pablo Avenue, Berkeley, California 94702. On November 18, 2014 I served the within APPELLANT’S OPENING BRIEF upon the parties named below by depositing a true copy in a United States mailbox in Berkeley, California, in a sealed envelope, postage prepaid, and addressed as follows: California Appellate Project 101 2" Street San Francisco, CA 94105 Office of the Attorney General P.O. Box 85266 San Diego, CA Jean Pierre Rices P-98772 San Quentin State Prison San Quentin, CA 94974 Hon. Lantz Lewis Office of the District Attorney San Diego Superior Court 250 E. Main Street 250 E. Main Street El Cajon, CA 92020 El Cajon, CA 92020 I declare under penalty of perjury that the foregoing is true. Executed on November 18, 2014 in Berkeley, California. Declarant |