PEOPLE v. JOHNSON (BILLY JOE)

Appellant’s Reply Brief

Cal.January 22, 2015

SUPREME COURT COPY IN THE SUPREME COURT OF THE STATE OF CALIFORNIA THE PEOPLE OF THE STATE OF CALIFORNIA, Case No. $178272 Plaintiff and Respondent, Orange County Superior Court Case No. 07CF2849 VS. BILLY JOE JOHNSON, DEATH PENALTY CASE Defendant and Appellant. SUPREME COUR® FILED JAN 2.2 2015 APPELLANT’S REPLY BRIEF Frank A. McGuire Clerk Deputy On Automatic Appeal from the Judgment of the Superior Court of the State of California for the County of Orange Honorable Frank F. Fasel, Judge Presiding MARKD. LENENBERG Attorney at Law . State Bar No. 77161 P.O. Box 940327 Simi Valley, California 93094-0327 Telephone: (805) 217-5768 Email: mmdl@roadrunner.com Attorney for Appellant DEATH PENALTY TOPICAL INDEX APPELLANT’S REPLY BRIEF ARGUMENT I. I. Iii. IV. THERE WAS INSUFFICIENT EVIDENCE TO SUPPORT THE FINDING THAT APPELLANT KILLED MILLER BY MEANS OF LYING-IN-WAIT EITHER AS A THEORY OF FIRST DEGREE MURDER OR A SPECIAL CIRCUM- STANCE THE VERSION OF THE LYING-IN-WAIT SPECIAL CIRCUMSTANCE PROVISION DESCRIBED IN SECTION 190.2(a)5) IS NOW INDISTINGUISHABLE FROM THE LYING-IN-WAIT THEORY OF FIRST DEGREE MURDER, UNCONSTITUTIONALLY VAGUE, AND CREATESAN AR- BITRARY AND CAPRICIOUS APPLICATION OF THE DEATH PENALTY BY FAILING TO NARROW THE CLASS OF DEATH-ELIGIBLE DEFENDANTS THE TRIAL JUDGE PREJUDICIALLY ERRED BY IN- STRUCTING THE JURY WITH CALCRIM NO. 400 THAT AN AIDER AND ABETTOR OF A CRIME IS EQUALLY GUILTY WITH THE ACTUAL PERPETRATOR THE “TRUE” FINDING ON THE PRIOR MURDER SPECIAL CIRCUMSTANCE MUST BE STRICKEN BECAUSE THE INTERPRETATION OF PRIOR MURDER IN THIS CASE VIOLATES THE FEDERAL CONSTITUTION THE TRIAL COURT ERRED BY FAILING TO LIMIT THE SCOPE OF VICTIM IMPACT EVIDENCE TO THE CAPI- TAL OFFENSE, MANDATING REVERSAL OF APPEL- LANT’S DEATH VERDICT A. THE CLAIM WAS NOT FORFEITED B. TESTIMONY ABOUT THE IMPACT OF THE CORY LAMONS KILLING WAS INADMISSIBLE UNDER CALIFORNIA LAW 12 19 20 20 22 C. INTRODUCTION OF VICTIM IMPACT EVIDENCE RELATING TO THE NONCAPITAL MURDER OF CORY LAMONS WAS FEDERAL CONSTITUTIONAL ERROR D. THE ERROR WAS PREJUDICIAL VI. PROSECUTORIAL MISCONDUCT MANDATES REVERSAL OF APPELLANT’S DEATH SENTENCE VIE THE CUMULATIVE EFFECT OF THE ERRORS IN THE GUILT AND PENALTY PHASES WAS PREJUDICIAL AND REQUIRES REVERSAL OF THE VERDICT OF DEATH VIII. CALIFORNIA’S DEATH PENALTY STATUTE, AS INTER- PRETED BY THIS COURT AND APPLIED AT APPEL- LANT’S TRIAL, VIOLATES THE UNITED STATES CON- STITUTION CONCLUSION CERTIFICATE OF COMPLIANCE WITH CALIFORNIA RULES OF COURT, RULE8.360(b) il. 24 24 26 29 31 32 33 TABLE OF AUTHORITIES CITED Cases Booth v. Maryland (1987) 482 U.S. 496 Chapmanv. California (1967) 386 U.S. 18 Godfrey v. Georgia (1980) 446 U.S. 420 Gregg v. Georgia (1976) 428 US. 153 Houston v. Roe (9th Cir. 1999) 177 F.3d 901 In re Seaton (2004) 34 Cal.4th 193 In re Winship (1970) 397 U.S. 358 Jackson v. Virginia (1979) 443 U.S. 307 Makv. Blodgett (9th Cir. 1992) 970 F.2d 614 Maynardv. Cartwright (1988) 486 U.S. 356 Neder v. United States (1999) 527 U.S. 1 Payne v. Tennessee (1991) 501 U.S. 808 People v. Abbaszadeh (2003) 106 Cal.App.4th 642 People v. Ashmus (1991) 54 Cal.3d 932 People v. Beeman (1984) 35 Cal.3d 547 People v. Benson (1990) 52 Cal.3d 754 People v. Birks (1998) 19 Cal.4th 108 People v. Bouzas (1991) 53 Cal.3d 467 People v. Boyd (1985) 38 Cal.3d 762 People v. Boyde (1988) 46 Cal.3d 212 People v. Caitlin (2001) 26 Cal.4th 81 ill. Pages 22 15, 18, 24, 29 8 8 9 13 3 4,7 29 10 15 20, 21, 24 20 24 13 22 20 9 22 22, 23 Cases People v. Canizalez (2011) 197 Cal.App.4th 832 People v. Castillo (1997) 16 Cal.4th 1009 People v. Ceja (1993) 3 Cal.4th 1134 People v. Clark (1990) 50 Cal.3d 583 People v. Cortez (1998) 18 Cal.4th 1223 People v. Fudge (1994) 7 Cal.4th 1075 People v. Gordon (1990) 50 Cal.3d 1223 People v. Grimes (Jan. 5, 2015, $076339)___Cal.4th___ [2015 WL 47493] People v. Guerra (2006) 37 Cal.4th 1067 People v. Guiton (1993) 4 Cal.4th 1116 People v. Hill (1992) 3 Cal.4th 959 People v. Hill (1998) 17 Cal.4th 800 People v. Holt (1984) 37 Cal.3d 436 People v. Hudson (2006) 38 Cal.4th 1002 People v. Jones (2003) 29 Cal.4th 1127 People v. Jurado (2006) 38 Cal.4th 72 People v. Lewis (2008) 43 Cal.4th 415 People v. Livingston (2012) 53 Cal.4th 1145 People v. McCoy (2001) 25 Cal.4th 1111 People v. Mickle (1991) 54 Cal.3d 140 People v. Morales (1989) 48 Cal.3d 527 People v. Musselwhite (1998) 17 Cal.4th 1216 People v. Nero (2010) 181 Cal.App.4th 504 iv. Pages 14 16, 17 13 13 22 28 29 13 30 12, 14 23 4,7 8, 10 14, 15 Cases People v. Partida (2005) 37 Cal.4th 428 People v. Rogers (1978) 21 Cal.3d 542 People v. Russell (2010) 50 Cal.4th 1228 People v. Samaniego (2009) 172 Cal.App.4th 1148 People v. Sanghera (2006) 139 Cal.App.4th 1567 People v. Scott (1994) 9 Cal.4th 331 People v. Smithey (1999) 20 Cal.4th 936 People v. Stevens (2007) 41 Cal.4th 182 People v. Streeter (2012) 54 Cal.4th 205 People v. Superior Court (Bradway) 105 Cal.App.4th 297 People v. Talle (1952) 111 Cal.App.2d 650 People v. Webster (1991) 54 Cal.3d 411 People v. Wein (1958) 50 Cal.2d 383 South Carolina v. Gathers (1989) 490 U.S. 805 United States Constitution Sth Amend. 6th Amend. 8th Amend. 14th Amend. Pages 13, 22 13 24 12, 13, 14 3 13 13 3, 8 8 10 26 5 26 22 Pages 21 21 8, 11,21 8, 21 Statutes Pen. Code, § 189 Pen. Code, § 190.2 Pen. Code, § 190.3 Pen. Code, § 1259 Rules of Court Rule 8.360 Jury Instructions CALCRIM No.400 CALCRIM No.401 CALCRIM No.521 Other Authorities Proposition 18 Vi. Pages 2, 8, 10, 11 2, 8,9, 10 20, 21, 22, 23, 24 13 Pages 33 Pages 12, 14, 15, 17 15 2 Pages 8,9 IN THE SUPREME COURT OF THE STATE OF CALIFORNIA THE PEOPLE OF THE STATE OF CALIFORNIA, Case No. $178272 Plaintiff and Respondent, Orange County Superior Court Case No. 07CF2849 VS. BILLY JOE JOHNSON, Defendant and Appellant. APPELLANT’S REPLY BRIEF In this reply brief, appellant addresses specific contentions made by respondent, but does not reply to arguments which are adequately ad- dressed in Appellant’s Opening Brief. The failure to address any particular argument, sub-argument or allegation made by respondent, or to reassert any particular point made in the opening brief, does not constitute a conces- sion, abandonment or waiver of the point by appellant (see People v. Hill (1992) 3 Cal.4th 959, 995, fn. 3), but reflects appellant’s view that the issue has been adequately presented and the positions ofthe parties fully joined.! ! Unless otherwise indicated, all further statutory references shall be to the Penal Code. Appellant’s Opening Brief will be cited “AOB”and Re- spondent’s Brief will be cited “RB.”’As in Appellant’s Opening Brief, the Clerk’s Transcript will be cited “CT” and formatted “CT VOL- -|- ARGUMENT I. THERE WAS INSUFFICIENT EVIDENCE TO SUPPORT THE FINDING THAT APPELLANT KILLED MILLER BY MEANS OF LYING-IN- WAIT EITHER AS A THEORY OF FIRST DE- GREE MURDER OR A SPECIAL CIRCUM- STANCE Appellant was found to have committed the first degree murder of Scott Miller. The jury had been instructed on lying-in-wait as one theory of first degree murder, and also found true a lying-in-wait special circum- stance allegation. Section 190.2, subdivision (a)(15), allows imposition of a lying-in- wait special circumstance if the jury finds the defendant “intentionally killed the victim by meansof lying in wait.” While the statutory language of the lying-in-wait special circumstance adds a requirementof intentional- ity, the remainderis in conformity with the language of section 189 which defines first degree murder, inter alia, as murder committed “by . . . lying in wait.” The elements of lying-in-wait first degree murder are concealmentor a concealed purpose from the person killed; waiting and watching for an opportunity to act; and from a position of advantage, makinga surprise at- tack on the person killed or aiding and abetting the person who madethe surprise attack. (People v. Ceja (1993) 3 Cal.4th 1134, 1138-1140; CALCRIM No.521.) The prosecutor urged the jury to convict appellant of first degree murder under a lying-in-wait theory and also urged them to find the lying- UME:PAGE.” In like manner, the one volume “Supplemental Clerk’s Transcript on Appeal Re: Accuracy” will be cited “SCT” and formatted without a volume number, and the Reporter’s Transcript will be cited “RT” and formatted “RT VOLUME:PAGE.” o. in-wait special circumstance allegation true.2_ The prosecutor argued that evidence showed appellant set up Miller’s murder and drove Miller to the place where Michael Lamb executed him, and that these facts and infer- ences from them established lying-in-wait. Appellant contends that there wasinsufficient evidence to support either first degree murderorthe special circumstance premised on lying-in-wait. Respondent disagrees, contending initially that appellant “fail[ed] to assess the evidence under the applicable standard of review, insisting on viewingthe facts in the light most favorable to himself and refusing to draw any reasonable inferences from the facts in support of the judgment.” (RT 51.) In support of this position, respondent quotes from People v. Sanghera (2006) 139 Cal.App.4th 1567, 1574, about an appellant’s need to presentall relevant evidencerelating to a claim of insufficient evidence and baldly as- serts that appellant has failed to do so without pointing to any evidence other than the evidence appellant presented and fully discussed. (RB 59- 60.) In fact, a comparison of appellant’s and respondent’s briefs show that the parties present and discuss the same evidence, but differ dramatically on the interpretation the evidence reasonably permits. First ofall, the fact that evidence is to be presented in the light most favorable to the prosecution does not mean that uncontroverted evidence favorable to the defense may be ignored, especially when that evidence was presented by the prosecution during the direct examination of its own wit- nesses. Instead, “upon judicial review all the evidenceis to be considered. . 2 The prosecutor also alleged, and the jury was instructed on,first degree murder based on a theory ofpremeditation and deliberation, a theory that is included within lying-in-wait and which is necessarily established if lying in wait is proven. (See, e.g., People v. Stevens (2007) 41 Cal.4th 182, 219 [lying in wait is a “kind of willful, deliberate, and premeditated kill- ing”].) ..” (Jackson v. Virginia (1979) 443 U.S. 307, 319, emphasis in original.) Moreover, if evidence is to be held legally “substantial,” it must be suffi- cient to prove the alleged offense or special circumstance beyond a reason- able doubt. Un re Winship (1970) 397 U.S. 358, 364.) This court has stated that when an appellate court considers whether there is a murder by lying-in-wait -- and in particular when the issue turns, as it does here, on the element of concealment or concealment of purpose-- the analysis “is often a difficult one which must be made on a case-by-case basis, scrutinizing all of the surrounding circumstances.” (People v. Mo- rales (1989) 48 Cal.3d 527, 558.) Appellant submits that when that assess- ment is done on the facts of this case, there is insufficient substantial evi- dence to support the interpretation sought by respondent.3 It is not mere concealment of purpose that is required for lying-in- wait murder; instead, lying-in-wait requires concealment of purpose that puts the perpetrator in a position of advantage that allows the jury to infer that lying-in-wait was part of the plan to take the victim by surprise. (Peo- ple v. Morales, supra, 48 Cal.3d at p. 555.) Here, that mandated nexus be- tween concealment of purpose and a surprise attack from a position of ad- vantage is absent. Instead, the jury heard evidence that Miller’s media interview put him at risk of being killed by his gang at any time, including long after the interview aired on television, and that Miller was both aware of the poten- tial consequences and was on his guard because of them. Prior to the night of the killing, Miller told Marnie Simmons on more than one occasion that 3 Respondent argues that there was a sufficient showing of intent to kill, an element of the lying-in-wait special circumstance. Respondent also argues that there was sufficient evidence of watching and waiting for an opportunity to act. For purposessolely of this argument, appellant does not contend otherwise. he was concerned for his safety. At the party the night of the killing, An- drea Metzger observed Miller joking with appellant that Miller would have to keep up his guard. Similarly, after Miller left the party with appellant, ostensibly to purchase drugs, he left a voice message for Simmonsin which he sounded concerned. In the message, Simmons may have heard appel- lant’s voice in the background. Similarly, appellant’s prior testimony -- as presented by the prosecution -- revealed that appellant told Miller at the party that he was going to kill him for breaking gang rules. The only rea- sonable inferences that can be drawn from this evidenceare that (1) Miller knew his gang sought to kill him; (2) Miller was concerned because ap- pellant was at the party and Miller had not seen him in the year since the interview was on television; and (3) Miller was specifically concerned he wasto be killed that night because he was out with appellant. Respondent seeks to marginalize this evidence by arguing that “tljuring the victim ‘to an isolated location on a pretext’ constitutes a con- cealment of purpose,” citing People v. Webster (1991) 54 Cal.3d 411, 448. (RB 56.) Appellant does not disagree with this general proposition, but that is not what occurred here. Miller was a drug addict willing to accompany appellant to buy drugs even though he clearly knew appellant’s real purpose. Miller knew the Public Enemy Number 1 gang wanted him dead. He had expressed that sentiment to others in the past, spoke about it with appellant at the party, and in the telephone call he made to Simmonswhile driving with appellant he was very worried. In his prior testimony that was uncontradicted at this trial, appellant testified that while at the party, Miller knew that appellant was going to kill him and appellant told Miller that he was going to kill him. (RT 5:1703.) Thus, while appellant may have used the promise of buying drugs as the inducement to get Miller to come with him because Miller would make a bad choice in order to obtain drugs, there was no con-_ -5- cealment of what appellant intended to do. Thus, the evidence was uncon- troverted that Miller knew an attempt on his life could be made if he de- parted with appellant, but chose to go with him anyway because he had a primary purpose of acquiring drugs. This was not a question of conceal- ment of purpose but instead of Miller’s bad choice to go with appellant in spite of the fact that he understood the purpose. The absence of concealment of purpose was further evidenced by Miller’s lack of surprise when he heard the footsteps of Michael Lamb and Jacob Rump behind him at the shooting scene, asked, “Are those PEN1 guys,” and appeared resigned that he wasto bekilled. The only reasonable inference from this uncontroverted evidence wasthat Miller knew all along what was going to happen to him that night, just not when and where. Thus, while the ultimate time and place of his shooting were most likely unknownto Miller, there was no substantial evidence that appellant ever concealed his purpose, and ever reasonable inference from the evi- denceis to the contrary. Respondent next asserts that there was sufficient evidence of a sur- prise attack from a position of advantage, requiring that a victim be “taken by surprise, with little or no opportunity to escape or fight back.” (RB 58, citing People v. Jurado (2006) 38 Cal.4th 72, 120.) Respondent’s argument is simple: Miller was isolated in the alley when he heard footsteps and asked whether gang members were behind him, and he had no opportunity to escape or fight back because he was already isolated and surrounded. Respondent’s position is mistaken. There was no evidence that Miller was surprised when Lamb and Rump cameup behind him. Miller knew that something waslikely goingto happen to him that night when he departed the party with appellant, and he apparently asked whether the guys behind him were from the gang in a matter-of-fact tone that did not indicate surprise. The mere fact Miller was -6- shot in the back of the head, apparently after introductions to Lamb and Rump,does not indicate a surprise attack; instead -- it merely showsthat Miller was resigned to being killed. Respondent repeatedly asserts that it was mere seconds between the sound of footsteps and the shooting, or that the killing occurred instantane- ously, thus precluding fighting back or escaping, but there was no evidence to support this contention, or any evidenceat all of the time involved. In this regard, respondentis not urging inferences from the evidence, but in- stead is fabricating evidence that was not beforethetrier of fact. In addition, respondent selectively utilizes only the evidence be- lieved to fit into its idealized elements of lying-in-wait and ignores the complete evidentiary picture, an approached clearly disapproved in Jackson v. Virginia, supra, 443 U.S. 307. As previously noted, an appellate assess- ment of the sufficiency of the evidence to support lying-in-wait, either as a theory of murderor a special circumstance, must be done case-by-case and mandates “scrutinizing all of the surrounding circumstances.” (People v. Morales, supra, 48 Cal.3d at p. 558.) Respondent has failed to do that. Whenall of the surrounding circumstances are analyzed, the record discloses no evidence that was reasonable, credible, and of solid value, that appellant either: (1) concealed his purpose; or (2) that Miller was killed by a surprise attack from a position of advantage. As such, no reasonabletrier of fact could find appellant guilty of first degree murder or a special cir- cumstance premised on lying-in-wait to be true. (People v. Guiton (1993) 4 Cal.4th 1116, 1126-1127.) The findings of first degree murder by lying-in-wait and the true finding on the lying-in-wait special circumstance allegation must be re- versed. ll. THE VERSION OF THE LYING-IN-WAIT SPE- CIAL CIRCUMSTANCE PROVISION DE- SCRIBED IN SECTION 190.2(a)(15) IS NOW IN- DISTINGUISHABLE FROM THE LYING-IN- WAIT THEORY OF FIRST DEGREE MURDER, UNCONSTITUTIONALLY VAGUE, AND CRE- ATES AN ARBITRARY AND CAPRICIOUS AP- PLICATION OF THE DEATH PENALTY BY FAILING TO NARROW THE CLASS OF DEATH-ELIGIBLE DEFENDANTS In March, 2000, California voters passed Proposition 18, modifying section 190.2 subd. (a)(15), creating death qualification for a defendant committing a murder “by means oflying-in-wait,” rather than “while lying- in-wait.” This change made the special circumstancestatute virtually iden- tical to the first-degree murder lying-in-wait provision of section 189. By eliminating the former distinction, the electorate removed the definite guideline needed to prevent arbitrary and capricious enforcement of these laws as required by the Eighth and Fourteenth Amendments. (Godfrey v. Georgia (1980) 446 U.S. 420, 428; Gregg v. Georgia (1976) 428 U.S. 153, 188; and see People v. Musslewhite (1998) 17 Cal.4th 1216, 1265, & Peo- ple v. Caitlin (2001) 26 Cal.4th 81, 90.) (AOB 59-62.) Respondent does not address appellant’s argument, but merely urges in highly abbreviated form that “[t]his Court has already rejected similar constitutional challenges to the lying-in-wait special circumstance.” (RT 62-63, citing People v. Streeter (2012) 54 Cal.4th 205, 249-250, People v. Livingston (2012) 53 Cal.4th 1145, 1174, People v. Lewis (2008) 43 Cal.4th 415, 515-517, & People v. Stevens, supra, 41 Cal.4th at pp. 203-204.) Re- spondent then quotes People v. Stevens, supra, 41 Cal.4th at p. 204, for the proposition that the lying-in-wait special circumstance narrowsthe category of those eligible for death because it has a requirementof intention to mur- der, while lying-in-wait murder does not. According to respondent, “[ap- pellant] fails to acknowledge or discuss these decisions which defeat his -8- claim. (See AOB 59-62.) As such, [appellant] offers no reason to reconsider or revisit this issue and the judgment should be affirmed.” (RB 63.) Appellant initially notes that none of the four cases cited by re- spondent actually support the proposition cited. While all the cases rejected a constitutional challenge to the lying-in-wait special circumstance, each case involved a murder that occurred prior to enactment of Proposition 18 in March, 2000, at which time the lying-in-wait special circumstance set forth in section 190.2, subdivision (a)(15), applied to a defendant commit- ting a murder “while lying-in-wait.” This court has yet to rule on the con- stitutionality of the current version of the statute applicable to a defendant committing murder “by means oflying-in-wait.” Appellant submits that the complete failure to respond to his argument acts as a concession of the point. (People v. Grimes (Jan. 5, 2015, S076339) ss Cal4th —y_ [2015 WL 47493, 18] [‘“respondent’s failure to address an argument raised by an appellant may, under some circumstances, be interpreted as a conces- sion.”]; People v. Bouzas (1991) 53 Cal.3d 467, 480.) To the extent that this court finds that respondent has adequately re- plied to the issue raised in Appellant’s Opening Brief, respondentis incor- rect. In a case cited by appellant and ignored by respondent, the Ninth Circuit addressed the issue as it read prior to the 2000 amendment and found that the only reason section 190.2, subd.(a)(15), was not void for vagueness was the fact that the statute required that the defendant kill “while” lying-in-wait rather than “by means of” lying-in-wait. (Houston v. Roe (9th Cir. 1999) 177 F.3d 901, 906-907.) The following year that very distinction was eliminated by the enactment of Proposition 18. Accord- ingly, under the reasoning of Houston v. Roe, the amendmentrendered the special circumstance void for vagueness and thus unconstitutional. To date, the only published case which analyzes the constitutionality of the amendedversion of section 190.2, subdivision (a)(15), is People v. Superior Court (Bradway) (2003) 105 Cal.App.4th 297, 306-307 (“Bradway”). In that case the Court of Appeal for the Fourth Appellate District, Division One, relied on the requirement of intent to kill found in the special circumstance, but not in section 189, and foundthis distinction adequately narrowedthe class of persons to whom the special circumstance could be applied and thus rendered the provision constitutional. However, as Justice Kennard said in her dissent in People v. Ceja, supra, 4 Cal.4th at pp. 1146-1157, and as Justice McDonald repeated in his dissent in Bradway, supra, 105 Cal.App.4th at pp. 311-314, the concept of lying-in- wait as both a theory of murder and the special circumstance are now iden- tical because lying-in-wait is the functional equivalent of intent to kill. For this reason, appellant respectfully urges this court to disapprove Bradway. Even if this court agrees with the holding in Bradway, it does not apply to the present case. (Maynard v. Cartwright (1988) 486 U.S. 356, 361-362 [the constitutionality of a statute is judged on an “as applied ba- sis”].) The Bradway court noted the defendant’s intent to kill his victim was an inescapable conclusion given the facts of that case. (Bradway, supra, 105 Cal.App.4th at p. 310.) However, because appellant did not personally commit the murder, section 189 required the prosecution to prove appel- lant’s intent to kill the victim to find him guilty of murder premised on ly- ing-in-wait. (People v. Musselwhite, supra, 17 Cal.4th at p. 1265.) Given the facts of this case, there was no meaningful distinction between thestat- utes. Respondent appears to acknowledge this problem in the counter-ar- gumentto appellant’s contention that there was insufficient proof to sustain the lying-in-wait allegations of both statutes. Respondent asserts that “where ‘““the evidence supports the special circumstance, it necessarily supports the theory offirst degree murder.” [Citations omitted.]” (RB 54.) -10- Once the jury reached its verdict under section 189, accepting that appellant intended to kill Miller and did so by lying-in-wait, its additional finding that appellant qualified for the death penalty underthe lying-in-wait special circumstance was inevitable because the jury was not required to consider any additional information in makingits decision. This is in viola- tion of the Eighth Amendment’s requirement that factors making a defend- ant eligible for the death penalty must properly channel the jury’s discretion and narrow the class of first degree murders for which a jurymay impose capital punishment. The lying-in-wait special circumstance finding must be reversed. -11- I. THE TRIAL JUDGE PREJUDICIALLY ERRED BY INSTRUCTING THE JURY WITH CAL- CRIM NO. 400 THAT AN AIDER AND ABET- TOR OF A CRIMEIS EQUALLY GUILTY WITH THE ACTUAL PERPETRATOR The trial judge instructed the jury with a version of CALCRIM No. 400 that stated an aider and abettor is equally guilty of a crime with the ac- tual perpetrator. As appellant argued in his opening brief (AOB 63-74),this instruction was erroneous becausean aiderandabettor’s culpability may be greater or lesser than the actual perpetrator depending on the mens rea of the aider and abettor. (People v. McCoy (2001) 25 Cal.4th 1111, 1121; People v. Samaniego (2009) 172 Cal.App.4th 1148, 1164-1165.) After both the decision in Samaniego andthe trial in this case, CALCRIM No. 400 was amendedto delete the phrase “equally” in situations such as this one. It was error to instruct on equal culpability in this case because there was a clear difference in culpability level between appellant and Michael Lamb. In the prosecutor’s theory of the case, Lamb actually killed Scott Miller by shooting him in the head, while appellant was less culpable be- cause he merely escorted Miller to the scene. Appellant submits that his jury believed the prosecutor’s theory that he directly aided and abetted Lambin the killing, which in turn necessarily led to a verdict offirst degree murder under the erroneous “equally culpable” languageof the instruction in CALCRIM No.400. Respondentdisagrees, but for the reasons discussed below,respond- ent is mistaken. Respondent first contends that appellant has forfeited this claim be- cause appellant’s trial counsel did not object to the instruction as given, and because the former version of CALCRIM No. 400 given in this case is a correct statement of the law merely subject to clarification or modification. (RB 64-65.) Respondent misses the mark on both counts. -12- First, an appellate court may review any claim ofinstructional error affecting a defendant’s substantial rights irrespective of whether there was an objection in thetrial court. (§ 1259; People v. Hudson (2006) 38 Cal.4th 1002, 1012; People v. Smithey (1999) 20 Cal.4th 936, 976, fn. 7.) Whether appellant’s substantial rights were affected can only be determined by de- ciding if the instruction as given was flawed and, if so, whether the error wasprejudicial. Thatis, if the claim has merit, it has not been forfeited.4 Moreover, the general rule that a party may not complain about an instruction that is legally correct but needs clarification or amplification “does not apply when. . . the trial court gives an instruction that is an incor- rect statement of the law.” (People v. Hudson, supra, 38 Cal.4th at pp. 1011-1112.) Respondentfails to respond to appellant’s argument that while Samaniego found the claim to be waivedin that case (People v. Samaniego, supra, 172 Cal.App.4th at p. 1163), Samaniego changed the law in April, 2009, and in cases like this one that weretried after Samaniego,a trial court is required to instruct correctly even when it has no sua sponte duty to do so. (People v. Gordon (1990) 50 Cal.3d 1223, 1275; People v. Fudge (1994) 7 Cal.4th 1075, 1110; People v. Castillo (1997) 16 Cal.4th 1009.) Here, however, the trial court had a sua sponte duty to instruct on aiding and abetting culpability. (People v. Beeman (1984) 35 Cal.3d 547, 560- 4 The flaw in respondent’s forfeiture argument is demonstrated by the cases relied on by respondent, none of which involve failure to object to or request clarification of a jury instruction incorrect on the law. (See Jn re Seaton (2004) 34 Cal.4th 193, 198 [three claims relating to prosecutorial decision to seek death penalty and one claim of deliberate manipulation of racial composition of jury panel]; People v. Rogers (1978) 21 Cal.3d 542, 548 [admission of evidence based on unreasonable search]; People v. Partida (2005) 37 Cal.4th 428 [admission of evidence]; People v. Scott (1994) 9 Cal.4th 331, 353 [reasons for sentencing choice]. -13- 561.) Respondent’s argument that appellant’s argument is forfeited is not well taken. Shifting to the substance of appellant’s claim, respondentassertsthat the jury wascorrectly instructed. In so doing, respondent misdescribes the holding ofPeople v. McCoy, supra, 25 Cal.4th 1111, and ignores both Peo- ple v. Samaniego, supra, 172 Cal.App.4th 1148 and People v. Nero (2010) 181 Cal.App.4th 504, both premised on McCoy. According to respondent, the equally guilty language of CALCRIM No. 400 is inapplicable in this case because the case was not prosecuted undera natural and probable con- sequences theory of aiding and abetting culpability, so “the jury was re- quired to find [appellant] had the specific intent to kill to be liable as an aider and abettor[.]” (RB 66.) For reasons explained below, respondent is wrong. [Neither McCoy nor Samaniego involved the natural and probable consequences doctrine. Each reached its conclusion only for aiders and abettors of a target offense. McCoy ex- pressly stated, “Nothing we say in this opinion necessarily applies to an aider and abettor’s guilt of an unintended crime under the natural and probable consequence doctrine.” (McCoy, supra, 25 Cal.4th at p. 1117, 108 Cal.Rptr.2d 188, 24 P.3d 1210.) Its analysis was only to apply “when guilt does not depend on the natural and probable consequences doctrine....” (Ud. at p. 1118, 108 Cal-Rptr.2d 188, 24 P.3d 1210.)” (People v. Canizalez (2011) 197 Cal.App.4th 832, 851.) Instead, the “equally guilty” language in CALCRIM No. 400 “misdescribes the prosecution’s burden in proving the aider and abettor’s guilt of first degree murder by eliminating its need to prove the aider and abettor’s own (1) intent, (2) willfulness, (3) premeditation and (4) delibera- tion, the mental states for murder.” (People v. Samaniego, supra, 172 Cal.App.4th at p. 1165.) In this case, the differences between appellant’s and Lamb’s intent and mental states were the mostcritical issues, and the -14- improper instruction misinformed the jury on the central issues they were called uponto resolve. Respondent argues that CALCRIM NO.401 required the jury to find appellant had the specific intent to kill required for aider and abettor culpa- bility for first degree murder and that the “equally guilty” version of CALCRIM No. 400 wastherefore correct in his case. (RB 66) Respondent is wrong. CALCRIM No. 401 merely sets for the basic elements of direct aiding and abetting, requiring appellant to know Lambintended to commit a murder, intended to aid him in doing so, and aided him in doing so.It makes no reference to lesser degrees of culpability, and more importantly, CALCRIM No.400, as erroneously given, required the jury to find appel- lant equally guilty if he directly aided and abetted Lamb. Respondent concedes that the error in this case must be analyzed pursuant to the standard of Chapman v. California (1967) 386 U.S. 18, 24 (RB 66), requiring reversal unless respondent can demonstrate beyond a reasonable doubt that the jury verdict would have been the same absent the error. (Neder v. United States (1999) 527 U.S. 1, 15; People v. Nero, supra, 181 Cal.App.4th at pp. 518-519.) Respondent’s only position on prejudicial error is simple: either appellant conceded or admitted the contested elements of the crime, or they were by necessity resolved adversely to appellant under other instructions. (RB 66-67.) Respondentasserts that appellant’s intent to kill was otherwise re- solved through appellant’s admission to Donald McLachlan that he wanted Lamb to shoot Miller in the face, and appellant’s prior testimony that he would kill fellow gang members that do not abide by the gang’s rules and considered Miller a “dead man”after Miller’s televised interview over one yearprior to the killing. (RB 66-67.) To the extent that respondent urges appellant’s gang related testi- mony as proofof intent, respondent ignores the crux of this issue and con- -15- fuses motive with intent. The fact that gang members were expectedto kill other gang members whoviolated gang rules wasitself a gang rule, butit provided no more than a reasonto kill and did not demonstrate appellant’s intent at the time Miller was actually killed. Similarly, appellant’s testi- mony that he considered Miller a “dead man”after the interview did not demonstrate his intent to kill him at the time of the homicide. The statement to McLachlan was contested at trial and in any event was not an admission of intent but, if anything, merely an after-the-fact proclamation of bravado. In neither instance did the evidence to which respondent points prove that appellant had the required mens rea at the time of the killing fe convict him of murder, nor did it provide sufficient evidence and to determine the de- gree of the crime. Critically, appellant’s prior testimony and his statement to McLach- lan differed in almost every important respect. According to McLachlan, appellant said that Lamb wasthe shooter, but in his own testimony appel- lant claimed he acted alone. The prosecutor chose to rely on the statement to McLachlan’s version and characterized appellant’s prior testimony as an attempt to exculpate Lamb because that theory would permit the conviction of Lamb and Rump in addition to appellant, whoat the time ofhis testi- mony wasalready serving a life sentence for a prior murder. Respondent now seeks to adopt parts of both McLachlan’s and appellant’s testimony, picking and choosing those portions which supposedly show intent while ignoring both the prosecutor’s own theory andthetotality of the evidence. Relying on People v. Cortez (1998) 18 Cal.4th 1223, 1231-1232 (“Cortez”), respondent contends that because appellant was also convicted of conspiracy to murder Scott Miller, the issues of intent to kill and the mental states of premeditation and deliberation were necessarily resolved adversely to appellant under the conspiracy instructions. Respondent mis- reads Cortez. Respondent misreads Cortez. -16- In Cortez, this court concluded that “all conspiracy to commit mur- der ‘is necessarily “conspiracy to commit [premeditated] first degree mur- der.”” (id. at p. 609) and is therefore punishable in the same mannerasfirst degree murder pursuant to the provisions of Penal Code section 182.” (Cortez, supra, 18 Cal.4th at p. 1226.) The court also concluded that be- cause “conspiracy to commit murder is a unitary offense punishable in every instance with the penalty prescribed for first degree murder, there is no occasion or requirement for the jury to further determine the ‘degree’ of the underlying target offense of murder, and thus no need for specific in- struction on premeditation and deliberation respecting the conspiracy charge.” Ud. at pp. 1226-1227.) Respondent has conceded that appellant’s jury was not instructed on premeditation and deliberation as part of the con- spiracy to murder instructions. (RB 67.) Hence, whether or not the mental states required for conspiracy to murder necessarily establish premeditation and deliberation, as urged by respondent, the jury did not by necessity re- solve the issue adversely to appellant under the instructions they were given. Beyond addressing whether the elements of the crime were resolved by other instructions, respondent does not contest prejudice arising from the error. With nothing further in dispute, appellant will not reargue prejudice, but will rely on the argumentin his openingbrief. Finally, with respect to appellant’s alternative claim that trial coun- sel rendered ineffective assistance in failing to object to the improperin- struction, respondent contends the claim should be rejected because there was neither error nor prejudice. In so doing, respondentrelies on the same arguments advanced previously. Appellant will not reassert those portions of his argumentother than urging that there is support in the record forinef- fective assistance of counsel in failing to assure that a properly modified version of CALJIC No. 400 was givenattrial. -|7- Here the jury was allowed to premise appellant’s level of culpability on that of his co-defendant without ever considering appellant’s personal mens rea. Respondent has not demonstrated that the error was harmless be- yond a reasonable doubt. (Chapmanv. California, supra, 386 U.S.at p. 24.) Reversal of appellant’s conviction of first degree murder is man- dated. -18- IV. THE “TRUE” FINDING ON THE PRIOR MUR- DER SPECIAL CIRCUMSTANCE MUST BE STRICKEN BECAUSE THE INTERPRETATION OF PRIOR MURDERIN THIS CASE VIOLATES THE FEDERAL CONSTITUTION In his opening brief, appellant argued that the true finding on the prior murder special circumstance mustbe stricken as violative of the fed- eral constitution because the prior murder on which it was based was com- mitted after the capital murder in this case, even though appellant was con- victed of that prior murder before the trial in this case. (AOB 75-78.) Re- spondent relies on this court’s previous decisions which rejected similar claims and urges this court to decline appellant’s invitation to reconsiderits prior rulings. (RB 71-72.) Accordingly, the issue is joined and no reply is necessary to re- spondent’s argument. -19- V. THE TRIAL COURT ERRED BY FAILING TO LIMIT THE SCOPE OF VICTIM IMPACT EVI- DENCE TO THE CAPITAL OFFENSE, MAN- DATING REVERSAL OF APPELLANT’S DEATH VERDICT Over defense objection, the prosecutor was permitted to introduce victim impact evidence relating to the noncapital murder of Cory Lamons. That secondary murder was used both as the predicate crime for the prior murder special circumstance and as an aggravating factor pursuant to sec- tion 190.3, factor (b), which permits the presentation of evidence of “other violent criminalactivity.” The failure to limit victim impact evidence to the circumstancesof the capital offense exceeded the scope of aggravating evi- dence allowed under Payne v. Tennessee (1991) 501 U.S. 808, and the jury was improperly influenced in its penalty determination by evidence that wasirrelevant but highly emotional and prejudicial. Respondent’s protesta- tions to the contrary are unavailing. A. THE CLAIM WAS NOT FORFEITED Respondentfirst urges that the claim on appeal was forfeited due to defensecounsel’s failure to raise it in the trail court. According to respond- ent, while defense counsel objected to introduction of the factor (b) victim impact evidence on relevance grounds,the failure to object specifically that victim impact evidenceis limited to the circumstances ofthe capital offense forfeited appellant’s claim on appeal. (RB 73-75.) Respondent’s position vis-a-vis forfeiture is unfounded. | Appellate courts will not insist upon an objection where the objec- tion would have beenfutile at the time. This exception is applicable where the statutory or case law binding the lower court at the time would have precluded the claim. (People v. Abbaszadeh (2003) 106 Cal.App.4th 642, 648-649; People v. Birks (1998) 19 Cal.4th 108, 116, fn. 6.) As noted in -20- both appellant’s opening brief and respondent’s brief, this court has con- sistently held the effects of a defendant’s violent criminal activity under section 190.3, factor (b), on victims and survivors of that activity are ad- missible in the penalty phase of a capital crime. It would have been point- less to object when the proffered evidence andtrial court ruling complied with then current binding authority of this court. Moreover, the objection raised by defense counsel wassufficient to protect the claim from forfeiture on appeal. In response to the prosecutor’s written motion seeking introduction of victim impact evidence relating to the collateral murder pursuant to section 190.3, factor (b), the defense filed an opposition titled: “The Defense Objects to Victim Impact Statements of Factor (b) Crimes.” Included in the paragraph that followed the title, the defense wrote: “The impact that a crime has on a victim’s mentalstate is not admissible absent its relevance to prove that the crime fits within the guidelines set forth by 190.3 (b).” (CT 15:3774.) This relevancy objection is entirely consistent with Payne v. Tennessee, supra, 501 U.S. 808, which held that in a penalty phase, victim impact evidence about the capital mur- der is relevant and not per se barred by the Eighth Amendmentif a state chooses to permit its introduction. (/d. at p. 827.) The issue here addresses both the overall relevance of victim impact evidence under section 190.3, factor (b), and whether California has actually permitted victim impacttes- timony about crimes unrelated to the capital crime. Both aspects of theis- sue are fairly included within the defensetrial objection. To the extent that the instant issue raises a federal issue, defense counsel set forth the basis for exclusion and sought the sameresult urged here, but did not identify the federal constitutional basis for the remedy sought: appellant’s Fifth, Sixth and Fourteenth Amendmentrights to due process of law andtrial before a fair and impartial jury, and the requirement of a reliable determination in a capital case under the Eighth Amendment. -2|- Accordingly, these constitutional objections are not forfeited despite failure to specifically urge them in the trial court. (People v. Partida (2005) 37 Cal.4th 428, 433-439; People v. Guerra (2006) 37 Cal.4th 1067, 1085,fn. 4.) B. TESTIMONY ABOUT THE IMPACT OF THE CORY LAMONSKILLING WASIN- ADMISSIBLE UNDER CALIFORNIA LAW In People v. Boyd (1985) 38 Cal.3d 762, this court held that aggra- vating evidence proffered by the prosecution must be premised on one of the three statutory aggravating factors found in section 190.3. Three years later, in People v. Boyde (1988) 46 Cal.3d 212, this court relied on the reasoning in Boyd in holding that testimony by victims of non-capital of- fenses relating to the impact of the crime on their lives was improperly ad- mitted as a matter of state law. (People v. Boyde, supra, 46 Cal.3d at p. 249.) Only two yearslater, in People v. Benson (1990) 52 Cal.3d 754, 797, this court reached the opposite result, holding that state law permitted in- troduction of evidence and argument on the impact on the victims of other crimes, but noted that it was not allowing evidence of the emotional impact on their family members because at that time such evidence and argument had been held to violate the federal constitution in Booth v. Maryland (1987) 482 U.S. 496, and South Carolina v. Gathers (1989) 490 U.S. 805. This court reasonedthat the other crime victim impact evidence was admis- sible as part of the “nature and circumstances of other criminal activity in- volving the use or threat of force or violence or the effect of such criminal activity on the victims.” (People v. Benson, supra, 52 Cal.3d at p. 797.) Benson did not discuss the contrary holding in Boyde. -22- The following year, in People v. Mickle (1991) 54 Cal.3d 140, this court held “other crime” victim impact evidence admissible “as circum- stances of the prior crimes bearing on defendant’s culpability.” Ud. at p. 187.) The court noted parenthetically that its decision was contrary to its earlier holding in Boyde, but did not otherwise discuss Boyde. Since that time, this court has consistently held that “other crime” victim impact evidence is admissible as a circumstance ofthe prior violent conduct, but has never addressed the specific issue of statutory construction raised here on appeal: whether in adopting section 190.3 the electorate in- tended to permit introduction of victim impact testimony about other crimes, in view ofthe fact that it utilized very different language in factor (a) [“‘the circumstances of the crime of which the defendant was convicted in the present proceeding”] and factor (b) [“the presence ... of criminal activity by the defendant which involved the use or attempted use of force or violence . .”]. (AOB 80-88.) | Respondent disagrees with appellant’s assertion of state law error but does not address the merits of appellant’s argument. Instead, in a one paragraph argument, respondent relies on prior holdings of this court up- holding other crime victim impact evidence as admissible pursuant to sec- tion 190.3, factor (b). (RB 75-76.) Accordingly, appellant has nothing to whichto reply. Based on the argumentin his opening brief, appellant reiterates that his argument on the statutory construction of section 190.3 is well-taken and not previously ruled upon by this court. Appellant submits the court should take up the issue and reverse the penalty judgmentonthis basis. ~23- C. INTRODUCTION OF VICTIM IMPACT EVIDENCE RELATING TO THE NON- CAPITAL MURDER OF CORY LAMONS WAS FEDERAL CONSTITUTIONAL ER- ROR In his opening brief, appellant argued that the admission of victim impact evidencerelating to the non-capital murder of Cory Lamons,intro- duced pursuantto section 190.3, factor (b), was federal constitutional error and urged this court to reconsider its prior contrary holdings. (AOB 88-95.) Respondentrelies on this court’s previous decisions rejecting the issue ap- pellant has raised in asking this court to decline appellant’s invitationto re- considerits prior rulings. (RB 76-77.) Accordingly, the issue is joined and no reply is nécessary to re- spondent’s argument. D. THE ERROR WASPREJUDICIAL As respondent concedes, federal constitutional error must be ana- lyzed pursuant to the standard of Chapman v. California, supra, 386 U.S. 18, 24 (RB 77), which requires reversal unless respondent can demonstrate beyond a reasonable doubt that the jury verdict would have been the same absent the error. (See People v. Clark (1990) 50 Cal.3d 583, 629; Paynev. Tennessee, supra, 501 U.S. at p. 824.) Respondent urges that any error in the introduction of victim impact evidence related to the Lamonskilling was harmless because there was “overwhelming evidence of aggravation” independentof the erroneously admitted evidence. (RB 78, citing People v. Russell (2010) 50 Cal.4th 1228, 1265.) | Respondent misses the point. In conducting a prejudice analysis of penalty phase error under Chapman,this court must ascertain how the error 999 would have affected “a hypothetical ‘reasonable juror.’” (People v. Ashmus (1991) 54 Cal.3d 932, 984.) This analysis necessarily requires examination -24- of the prosecutor’s argument to the jury at the conclusion of the penalty phase. Here, the prosecutor repeatedly referred to the impact of the non- capital murder on Lamons’ mother and urged that it must be given the highest value when weighing the aggravating and mitigating factors. At the end of his argument, the prosecutor urged a verdict of death by asking the jurors whether they felt what Lamons’ mother and her daughterfelt. In do- ing so, the prosecutor focused the penalty phase on the characterof the vic- tim of a non-capital crime and his family as opposed to the circumstances of the capital crime and the character of the defendant. Here, the federal due processerror in admitting highly emotional and prejudicial improper victim impact evidence cannot be harmless. Reversal of appellant’s death penalty is mandated. -25- VI. PROSECUTORIAL MISCONDUCT MANDATES REVERSAL OF APPELLANT’S DEATH SEN- TENCE During his penalty phase summation to the jury, the prosecutor un- mistakably addressed his argument to each juror, asking them one-by-one whether they were indignant about appellant’s behavior before asking the entire jury to return a verdict of death. (RT 9:2723-2724.) Referring to ju- rors individually in argument is an improper appeal to the passions and prejudices of the jurors. (People v. Wein (1958) 50 Cal.2d 383, 395-396; People v. Talle (1952) 111 Cal.App.2d 650, 675.) With reference to the asserted error, respondent contends that there was no error because penalty phase jurors are required to personally assign weight to aggravating and mitigating factors, and personally weigh whether the aggravating substantially outweighs the mitigating to warrant a death sentence. According to respondent, the argument was proper because the prosecutor was “impress[ing] each juror with his or her personal andindi- vidual responsibility to arrive at an appropriate penalty by addressing them separately.” (RB 84.) Despite respondent’s attempt to put an innocent spin on the prose- cutor’s argument, it is clear from the record that the prosecutor was not asking the jurors to deliberate individually in weighing the appropriate pen- alty, for he made no mention of that responsibility either shortly before or after the offending remarks. Moreover, it is clear from the context and the words that the prosecutor used that he was using this rhetoricalstyle to stir the emotions of the jury as a whole to return his desired verdict. In any event, even if the purpose of the argument wasproper, the prosecutor used a technique universally forbidden by this court and all other courts to reach the issue in both guilt and penalty phase trials. Using an improper meansto this end wasstill misconduct. -26- After acknowledging that this court has previously forbidden argu- ment addressing individual jurors, respondent urges that the prosecutor did not violate that rule because he “address[ed] each of the twelve jurors in generic fashion with the same rhetorical question . . . in effect addressing the jury as a whole.” (RB 85, italics in original.) Respondent appears to be contending that the misconduct was somehow corrected because the prose- cutor committed it with all twelve of the jurors instead of just one, or two, or eleven. This argument is absurd. The additional misconduct did notalle- viate the problem; it compoundedit. Each time the prosecutor addressed another juror individually he committed new misconduct and madethesit- uation worse. Respondent next contends that any penalty phase prosecutorial mis- conduct was harmless. Respondent’s short argument on prejudice centers on the “overwhelming” nature of the case in aggravation and the “uncon- vincing” case in mitigation. (RB 86-87.) But the defense was not uncon- vincing; it asked the jurors to look at appellant’s relationships with his family and friends, his life history, and institutionalfailure. The prosecutor’s improper argument came near the end of his sum- mation and had the obvious purpose or increasing the individual anger of each juror so they wouldset aside their rational weighing process instead of focusing on it. The prosecutor’s argument was one more link in the chain the prosecutor sought to build leading to a sentence of death, and plainly contributed to the death verdict. Accordingly, the error cannot be held harmless. Finally, respondent urges that to the extent appellant’s counsel pro- vided ineffective assistance of counsel, it should be rejected because there was neither error nor prejudice. In so doing, respondentrelies on the same arguments advanced on error and prejudice earlier in this portion of re- spondent’s brief. Appellant submits that those arguments were in error and -27- will therefore not reassert those portions of this argument apart from noting that the record amply supports the conclusion that counsel wasineffective in failing to object to this highly prejudicial misconduct.> Respondent has not demonstrated that the error was harmless beyond a reasonable doubt and appellant’s sentence of death must be reversed. 5 Failure to object to prosecutorial misconduct does not necessarily waivethe error. (People v. Hill (1998) 17 Cal.4th 800, 820-821.) -28- Vil. THE CUMULATIVE EFFECT OF THE ERRORS IN THE GUILT AND PENALTY PHASES WAS PREJUDICIAL AND REQUIRES REVERSAL OF THE VERDICT OF DEATH Even whereindividual errors do not result in prejudice, the cumula- tive effect of such errors may require reversal of the guilt phase. By and large, those same errors impacted the penalty phase in addition to other er- rors that were unique to the penalty phase. The discussion of each individ- ual error identifies the way in which the error prejudiced appellant and re- quires reversal of the death judgment. The combined effect of all the errors must be considered apart from the cumulative effect at the guilt phase, since the jury’s consideration of all the penalty factors results in a single general verdict of death orlife without the possibility of parole. Multiple errors, each of which might be harmless had it been the only error, can combine to create prejudice and compelre- versal. (Mak v. Blodgett (9th Cir. 1992) 970 F.2d 614, 622; People v. Holt (1984) 37 Cal.3d 436.) Respondent counters that “there were no errors in either the guilt or penalty phase. Even assuming for purposes of argument a technical viola- tion of the Wein rule in penalty phase argument, there would be nothing to aggregate.” (RB 89.) While respondent repeats this refrain throughout the brief, respondent fails to fully appreciate the allocation of the parties’ re- spective burdens in prejudice analysis. First, to the extent that there is fed- eral constitutional error in the guilt phase, it is analyzed for prejudice pur- suant to Chapman. Second, to the extent that appellant has shown penalty phase error, the burden of demonstrating prejudice is respondents, not ap- pellant’s. The applicable test of prejudice from state law error in a penalty trial is the same as the analysis for federal constitutional error under Chap- man v. California, supra, 386 U.S. at p. 24; the state law standard of a showing of a “reasonable possibility” the error affected the penalty verdict -29. is the equivalent of the federal constitutional standard requiring respondent to demonstrate that the error was harmless beyond a reasonable doubt. (People v. Jones (2003) 29 Cal.4th 1127, 1264, fn. 11.) Here, respondent has merely offered up the various assignments of error made by appellant and stated that there was noresultant error or prej- udice resulting from any individual error. To the extent that this court holds that there were multiple guilt and penalty phase errors, respondent has made no attempt to meet the burden of demonstrating that the errors were harmless beyond a reasonable doubt. Accordingly, because the compounderrors in this case rendered the sentence unreliable, appellant’s judgment of death must be reversed. -30- VII. CALIFORNIA’S DEATH PENALTY STATUTE, AS INTERPRETED BY THIS COURT AND AP- PLIED AT APPELLANT’S TRIAL, VIOLATES THE UNITED STATES CONSTITUTION In his opening brief, appellant set forth various deficiencies relating to the application of the California death penalty statute. (AOB 107-143.) Respondentrelies on this court’s previous decisions rejecting the issues ap- pellant has raised in urging this court to decline appellant’s invitation to re- considerits prior rulings. (RB 89-93.) Accordingly, the issues are joined and no reply is necessary to re- spondent’s argument. -31- CONCLUSION For the reasonsset forth in Appellant’s Opening Brief and this reply brief, appellant respectfully requests that this Honorable Court reverse his judgmentof conviction and sentence of death. Dated: January 20, 2015. Respectfully submitted, MARK D. LENENBERG Attorney for Appellant BILLY JOE JOHNSON -32- CERTIFICATE OF COMPLIANCE WITH CALIFORNIA RULES OF COURT, RULE8.360(b) I certify that this Appellant’s Reply Brief contains 7,655 words,in- cluding footnotes, but not including this page, attachments, and tables, as counted by Microsoft Word for Windows 2007. I declare under penalty of perjury under the laws of the State of Cali- fornia that the foregoing is true and correct and that this Declaration is exe- cuted this 20th day of January, 2015, at Simi Valley, California. MARK D. LENENBERG Attorney for Appellant BILLY JOE JOHNSON -33- DECLARATION OF SERVICE BY MAIL I, MARK D. LENENBERG,declare that I am over 18 years of age, and not a party to the within cause; my business address is P.O. Box 940327, Simi Valley, California; I served one copy of the attached APPELLANT’S REPLY BRIEF on the following, by placing samein an envelope addressed as follows: Ronald Jakob Deputy Attorney General P.O. Box 85266 San Diego, California 92186-5266 Ebrahim Baytieh Senior Deputy District Attorney 700 Civic Center Drive West P. O. Box 808 Santa Ana, California 92702 Billy Joe Johnson # F-35047 CSP- SQ 2-AC-51 San Quentin, California 94974 Clerk of the Superior Court for Honorable Frank F. Fasel, Judge 700 Civic Center Drive West Santa Ana, California 92701 Wesley A. Van Winkle Attorney at Law P.O. Box 5216 Berkeley, California 94705 Michael Molfetta Attorney at Law Molfetta & Associates 4425 Jamboree Road Suite 130 Newport Beach, California 92660 (Trial counsel for appellant) Each envelope was then, on January 20, 2015, sealed and deposited in the United States mail at Simi Valley, California, the county in which I am employed, with the postage thereon fully prepaid. I declare under penalty of perjury that the foregoing is true and correct. Executed on January 20, 2015, at Simi Valley, California. MARK D. LENENBERG Declarant