PEOPLE v. MILLS

Appellant’s Reply Brief on the Merits

Cal.November 22, 2011

IN THE SUPREME COURT OF THE STATE OF CALIFORNIA PEOPLE OF THE STATE OF ) CALIFORNIA, ) ) SUPREME COURT Plaintiff and Respondent, _) ) NO: 8191934 VS. ) ) AHKIN R. MILLS, ) . ; ) SUPREWE COURT - Defendant and Appellant. _) F [ Lo fs rf) NOV 22 2011 REPLY BRIEF ON THE MERITS Fredarick K. Ohirich Clerk Deputy First Appellate District, Division Two, Case No. A125969 Alameda County Superior Court, Case No. C154217 Honorable Larry J. Goodman, Judge KYLE GEE (SBN 065895) 2626 Harrison Street Oakland, CA 94612 (510) 839-9230 Attorney for Appellant AHKIN R. MILLS TOPICAL INDEX TABLE OF AUTHORITIES CITED ............... 0.0.0... il PRELIMINARY STATEMENT .............. 00.0 000000. 1 INTRODUCTION TO THE REPLY BRIEF ON THE MERITS ... 2 ORGANIZATION OF THE REPLY BRIEF ................. 5 I MR. MILLS URGES THIS COURT TO ADDRESS HIS CLAIMS OF ERROR ANEW, NOTWITHSTANDING THE CODDINGTON AND BLACKSHER DECISIONS. .... 6 A. Introduction. ........... 0.0000 cee eee eee eee 6 B. Mr. Mills’s Responsive Arguments. .............. 6 I CLARK IS NOT "IN ACCORD WITH CODDINGTON AND BLACKSHER, NOR DOES A "CONCLUSIVE PRE- SUMPTION OF LEGAL SANITY" INSTRUCTION AT THE GUILT PHASE "IMPLEMENT" CLARK’S HOLD- ING.2.eeeeee ees 9 A. Introduction. .. 0...keee 9 B. Mr. Mills’s Views as to Clark, in Brief. ........... 10 C. Mr. Mills’s Views as to Clark, in Detail. .......... 12 1. The Two Issues in Clark. ............00.., 12 2. The Trial and Appellate Court Proceedings in Clarh3 Il IV 3. The Supreme Court’s Resolution of the "Definition of Insanity" Issue. .. 2... 2... 00.02 ee ee 14 4. The Supreme Court’s Resolution of the Due Process Issue Regarding Arizona’s Exclusion at the Guilt Phase of Psychiatric and Psychological Evidence on the Issue of Mens Rea, in Reference to Both "Dimin- ished Capacity" and "Diminished Actuality." ... 16 Mr. Mills’s Multiple Points of Disagreement With the Attorney General’s Conclusions as to the Purported Signifi- cance of Clark. . 0.0...ee 23 THE ATTORNEY GENERAL FAILS TO DEMON- STRATE THAT THE OTHER INSTRUCTIONS OR AR- GUMENTS OF COUNSEL EITHER PREVENTED CON- STITUTIONAL ERRORIN THE FIRST INSTANCE OR RENDERED THAT ERROR NOT PREJUDICIAL. ....... 28 A. Introduction. ........ 0.0.0. eeee ns 28 B. The Instructions and Argument Did Not Avoid Constitutional Error, ....... 0... 0c eee ee ne 28 The Instructions and Argument Did Not Ren- der the Constitutional Error Non-Prejudicial......... 29 THE LOGIC OF PATTERSON AND STARK, WHILE NOT BINDING ON CALIFORNIA COURTS, REMAINS LOGI- CALLY AND LEGALLY PERSUASIVE. ............. 31 THE ATTORNEY GENERAL’S PEREMPTORY DIS- MISSAL OF THE STATE LAW ARGUMENTS-- IN A FOOTNOTE -- FAILS TO GIVE PROPER DEFERENCE TO PRIOR DECISIONS OF THIS COURT. ............ 33 CONCLUSION ... 0.0...oeeee 34 1 TABLE OF AUTHORITIES CITED FEDERAL CASES Carella v. California (1989) 491 U.S. 263 Clark v. Arizona (2006) 548 U.S. 735 Fisher v. United States (1946) 328 U.S. 463 Francis v. Franklin (1985) 471 U.S. 325 In re Winship (1970) 397 U.S. 358 Montana v. Egelhoff (1996) 518 U.S. 37 Patterson v. Gomez (9th Circuit 2000) 223 F.3d 959 Rose v. Clark (1986) 478 U.S. 570 Sandstrom v. Montana (1979) 442 U.S. 510 Smith v. California (1959) 361 U.S. 147 Stark v. Hickman (9th Cir. 2006) 455 F.3d 1070 Ulster County Court v. Allen (1979) 442 U.S. 140 Yates v. Evatt (1991) 500 U.S. 391 CALIFORNIA CASES People v. Coddington (2000) 23 Cal.4th 529 People v. Anderson (1965) 63 Cal.2d 351 People v. Birks (1998) 19 Cal.4th 108 People v. Blacksher (2011) 52 Cal.4th 769 ili 29 passim 23 12, 28, 29, 31 10 10 5, 31 29 passim 10 5, 32 23 30 4,5, 6, 7, 8,9 7, 8, 33 8 4, 5, 6, 7, 8, 9, 23 People v. Bonin (1988) 46 Cal.3d 695 People v. Burton (1971) 6 Cal.3d 375 People v. Dobson (2008) 161 Cal.App.4th 1422 People v. Jackson (1954) 42 Cal.2d 540 People v. Mickey (1991) 54 Cal.3d 612 People v. Roe (1922) 189 Cal. 548 Price v. Superior Court (2001) 25 Cal.4th 1046 FEDERAL CONSTITUTIONAL PROVISIONS Sixth Amendment Fourteenth Amendment CALIFORNIA STATUTES Penal Code section 22 Penal Code section 25 Penal Code section 28 Penal Code section 1026 OTHER AUTHORITIES CITED CALJIC 3.32 CALJIC 5.16 iv 26 31 26 7, 8, 33 2, 8, 34 passim 4,9 4,9 4,9 24, 29 24 IN THE SUPREME COURT OF THE STATE OF CALIFORNIA PEOPLE OF THE STATE OF CALIFORNIA, Plaintiff and Respondent, VS. AHKIN R. MILLS, Defendant and Appellant. PRELIMINARY STATEMENT Appellant AHKIN R. MILLSin this Reply Brief on the Merits will address certain contentions and arguments advanced in the Attorney General’s Respondent’s Brief on the Merits ("RBM"). As for any matter not specifically addressed, Mr. Mills will rely on the arguments and authorities set forth in his Opening Brief on the Merits ("OBM"). INTRODUCTION TO THE REPLY BRIEF ON THE MERITS The Respondent’s Brief on the Merits is reasonably predictable and straightforward, with the exception of its heavy reliance on Clark v. Arizona (2006) 548 U.S. 735. As will be explained, Clark had nothing to do with California homicide law, California evidentiary law, or California procedural law, and Clark said nothing which bears on whether a Califor- nia jury should be instructed on a "conclusive presumption of sanity" at the guilt phase of a bifurcated guilt and sanity trial. . Perhaps the most telling case citation in Respondent’s Brief on the Merits appears at RBM 7-8, when reference is made to the following language from People v. Dobson (2008) 161 Cal.App.4th 1422, 1431: "In the first phase oftrial, the defendant is tried on his or her factual issue of guilt without reference to his insanity plea." Emphasis added. Would that it had been so at Mr. Mills’s trial. Dobson’s observation captures perfectly Mr. Mills’s view of California procedure in the event of dual pleas of "not guilty" and "not guilty by reason of insanity." Yet this procedural demarcation was not observed in Mr. Mills’s case, when thetrial court -- over defense objec- tion -- blurred the line between the two phasesoftrial by transmuting a procedural provision of Penal Code section 1026' into a substantive instruction to Mr. Mills’s guilt phase jury. The trial court’s decision to give a "conclusive presumption of legal sanity" instruction at the guilt phase violated the Fourteenth Amendment requirement of "proof beyond a reasonable doubt" and the Sixth Amendment guarantee oftrial by jury, '7 All code references are to the California Penal Code, unless otherwise noted. as those rights are protected by the holdings of cases such as Sandstrom v. Montana (1979) 442 U.S. 510 ("Sandstrom"). Throughoutits brief, the Attorney General subtly but persistently seeks to blur the line between the guilt phase of trial and the sanity phase of trial. For example, the third sentence of the Respondent’s Brief on the Merits begins as follows: "The People bear the burden to prove every element of the crime, but the defendant bears the burden to prove sanity, if he stands convicted and contests that issue at trial." RBM 1. While correct as far as it goes, a fully accurate articulation of these two burdens would have been as follows: "The People bear the burden to prove every element of the crime [beyond a reasonable doubt at the guilt phase]; but the defendant [thereafter] bears the burden to prove insanity [at the subsequent sanity phase oftrial], if he stands convicted "and contests that issue at trial." The defendant’s burden as to insanity at the sanity phase should play norole at the guilt phase, under California’s law and procedure, or under the federal constitution. Throughoutits brief, the Attorney General also subtly but persis- tently seeks to blur the line between evidentiary restrictions with respect to mental disease or defect, and constitutionally prohibited presumptions related to mental disease or defect. In addition, the Attorney General subtly but persistently seeks to blur the line between definitions of crime and defenses, and constitutionally prohibited presumptions bearing on the prosecution’s burden of proof and the right to jury trial. Mr. Mills emphasizes once more that the question before this court does not concern how the California Legislature has defined the elements of first degree or second degree malice-murder. Nor does the issue concern what evidence the California Legislature has deemed admissible and inadmissible at the guilt phase, under Penal Code sections 22, 25, or 28. Nor does the question concern the mitigating defenses which have been recognized by this court, or the definition of insanity which Califor- nia has adopted. Mr. Mills concedes these matters to be within the Legislature’s and courts’ authority under well-established federal constitu- tional principles which the United States Supreme Court recently re-af- firmed in Clark. Mr. Mills’s issue has a different focus. His challenge concerns what a guilt phase jury may constitutionally be told, in reference to the jury’s consideration of admissible evidence of mental disease and defect, as that evidence bears on the elements of first and second degree murder, and on “imperfect self-defense." His position, which he has conceded is seemingly at odds with Coddington and Blacksher,’ is that a substantive instruction on a "conclusive presumption of sanity" violates the federal constitutional ban against conclusive presumptions which bear on the mens rea elements of an offense and a defense. */ People v. Coddington (2000) 23 Cal.4th 529, overruled on other grounds in Price v. Superior Court (2001) 25 Cal.4th 1046; and People v. Blacksher (2011) 52 Cal.4th 769. 4 ORGANIZATION OF THE REPLY BRIEF The Reply Brief on the Merits will generally track the organization of the Respondent’s Brief on the Merits. Mr. Mills will begin in Argu- ment I, at pages 6-7, with limited observations as to the Attorney Genera- ls discussion of Blacksher, supra, 52 Cal.4th 769 and Coddington, supra, 23 Cal.4th 529 (RBM 9-12). Thereafter, Mr. Mills will spend significant time in Argument II, at pages 8-27, discussing Clark v. Arizona, supra, although he does so with reluctance. As explained in the Introduction to Argument II, he deems Clark inapposite, because the issues considered in Clark had solely to do with a state’s power to define the mens rea element of crimes, to define the defenses to the mens rea element of a crime, to limit the evidence which may be considered by the trier of fact on the mens rea element at the guilt phase, or to define legal insanity. In Argument II, Mr. Mills will dissect Clark andits limited holdings. Mr. Mills will expose the fallacy of the Attorney General’s contention that a "conclusive presumption of sanity" instruction to a guilt phase jury "implements Clark’s holding." See, RBM 19-23. In ArgumentIII, at pages 28-30, Mr. Mills will dispute the Attorney General’s "hybrid" claim of "no error" and "no prejudice," which is based on otherinstructions. RBM 21-23. In Argument IV, at pages 31-32, Mr. Mills will have observations with regard to Patterson and Stark,’ which cases the Attorney General dismisses as "unpersua- sive." RBM 25-27. Finally, in Argument V, at page 33, Mr. Mills notes the Attorney General’s failure to discuss relevant state law. */ Patterson v. Gomez (9th Circuit 2000) 223 F.3d 959 and Stark v. Hickman (9th Cir. 2006) 455 F.3d 1070. 5 I MR. MILLS URGES THIS COURT TO ADDRESS HIS CLAIMS OF ERROR ANEW, NOTWITHSTANDING THE CODDINGTON AND BLACKSHER DECISIONS. A. Introduction. At RBM 9-10, the Attorney General presents a summary ofthis court’s decision in Coddington, supra, 23 Cal.4th at 584-585, and at RBM 10-11, the Attorney General summarizes the recent decision in Blacksher, supra, 52 Cal.4th at 831-852. The Attorney General’s sum- maries of the two cases largely mirrors OBM 2-4, 40-41, and 47-48. At RBM 12, the Attorney General advances the following three points: (i) "[a]ppellant does not explain how a separate [due process] analysis [in Coddington] would have produceda different outcome in that case"; (ii) "[i]n Blacksher, the defendant specifically argued the instruc- tion violated his right to due process... and... the court rejected [the claim] on due process grounds"; and (iii) the instruction "1s fully consis- tent with California’s allocation of the burden or proof on guilt and sanity, an allocation that was upheld in Clark v. Arizona, supra, 547 U.S. 735." B. Mr. Mills’s Responsive Arguments. As for the Attorney General’s first point, Mr. Mills deems the entirety of his Opening Brief on the Merits -- and particularly OBM 34- 38 and 48-51 -- to be an explanation of how "a different outcome" should have been reached in Coddington, had the Sandstrom issue been squarely considered. As for the Attorney General’s third point, Mr. Mills will address in ArgumentII, at pages 8-27, the lack of significance of Clark to the Sandstrom issue. That leaves the Attorney General’s second point, which is -- as begrudgingly conceded in part at OBM 2-4 -- that Blacksher appears "to be generally against Mr. Mills, at least in dictum," even though the opinion in Blacksher did not discuss Sandstrom or any other United States Supreme Court case. That circumstance arguably leaves Mr. Mills with little to say. Justice Baxter authored Coddington, Justices Werdegar and Chin joined, and Justice Kennard’s dissent focused on another issue. Justice Corrigan was the author of Blacksher, and every current memberofthis court with the exception of Justice Liu was a signatory. This court knowsfar better than either party what it considered and what it meant when Blacksher and Coddington were decided However, most of Mr. Mills’s Opening Brief on the Merits (OBM 26-51) was devoted to an explanation of why he believed, with deference, that the conclusions reached in Blacksher and Coddington, whether or not in dictum, were at odds with cases such as Sandstrom. Another part of Mr. Mills’s Opening Brief on the Merits (OBM 52-54) was devoted to an explanation of why he believed, with deference, that the court’s "correct statement of the law" rationale is at odds with the holdings of cases such as People v. Anderson (1965) 63 Cal.2d 351, People v. Jackson (1954) 42 Cal.2d 540, and People v. Roe (1922) 189 Cal. 548. This court knows what it was thinking and whatit intended in Blacksher and Coddington, and if the Opening Brief did not change the court’s mind, a Reply Brief will not. The best Mr. Mills can do now is to remind the court of the distinctions between his procedural circum- stances and the procedural circumstances in Coddington and Blacksher, and to urge the court to consider these questions further in light of Sandstrom, Anderson, Roe and the other cases cited in the Opening Brief on the Merits. In neither Coddington nor Blacksher had there been a defense objection at trial to the challenged instruction, while Mr. Mills’s counsel specifically objected under the Sixth and Fourteenth Amendments. In neither Coddington nor Blacksher hadthetrial court refused to define for the jury the term "legally sane" which the jury was told was to be "con- clusively presumed." In summary, Mr. Mills’s issues were fully pre- served, while they were not in Coddington and Blacksher. Even werethis court to deem Mr. Mills’s procedural posture indistinguishable from Coddington and Blacksher, and even were the court to deem the Sandstrom and Roe issues to have been fully raised, considered, and resolved in Coddington and Blacksher, Mr. Mills asks the “court to address them anew, with full discussion of the Sandstrom and Anderson-Roe principles. The court has shownitself willing to rethink a position (People v. Birks (1998) 19 Cal.4th 108), and it would be appro- priate to do so here. II CLARK IS NOT "IN ACCORD WITH CODDINGTON AND BLACKSHER, NOR DOES A "CONCLUSIVE PRESUMPTION OF LEGAL SANITY" INSTRUCTION AT THE GUILT PHASE "IMPLEMENT" CLARK’S HOLDING. A. Introduction. Throughout the Respondent’s Brief on the Merits the Attorney General seeks to pound a very round peg into a very square hole, whenit is asserted that the United States Supreme Court’s decision in Clark is somehow dispositive of Mr. Mills’s claim of error. At RBM 1, the Attorney General refers to the Clark holding and concludesthat "[a]ppel- lant’s argument accordingly fails." At RBM 7,it is contended that "[a]n instruction at the guilt phase that a defendant is presumed sane imple- ments Clark’s holding... ." It is asserted at RBM 12, that "Clark v. Arizona is in accord with Coddington and Blacksher." Finally, the Attorney General’s subsection heading at RBM 19 again asserts that "the trial court’s instruction at the guilt phase that appellant was conclusively presumed sane implements Clark’s holding." None of these assertions is legally or logically correct. Clark had two holdings, one relating to Arizona’s legal definition of sanity, and the other relating to Arizona’s exclusion of psychological and psychiatric evidence at the guilt phase on the issue of mens rea. While California can draw comfort from Clark in the sense that Penal Codesections 22, 25, and 28 pass constitutional muster at the guilt phase, and that Califor- nia’s definition of legal insanity and assignment of the burden pass constitutional muster at the sanity phase, Clark does not dictate the result in relation to either the Sandstrom or the Anderson-Roe issue. B. Mr. Mills’s Views as to Clark, in Brief. The gnarled tree of the Fourteenth Amendment Due Process Clause has multiple branches. For example, the Due Process Clause almost never limits a state’s ability to specify the elements of crimes. See, e.g., Smith v. California (1959) 361 U.S. 147, 150. At the same time, however, once a state has prescribed the elements of a crime, the Due Process Clause requires the state to present proof beyond a reason- able doubt of each element of that crime. See In re Winship (1970) 397 U.S. 358. Such independent lines of due process may fully and comfortably co-exist, without one undermining another. For example, it would be specious for the state to argue under Smith that the Legislature was not constitutionally required to include a mens rea element in the definition of a crime, and then to leap to a conclusion that the state need not prove that element beyond a reasonable doubt. While the Due Process Clause says little about the choices a state may constitutionally make in terms of elements of a crime, and defenses to a crime, the Due Process Clause says a great deal about the burden of proof and level of proof required to convict of a crime. Moreover, a state may validly limit the evidence on which a defendant may rely in defense of a crime, including defense against the mens rea element. See, e.g., Montana v. Egelhoff (1996) 518 U.S. 37 [a state may validly preclude evidence of intoxication when offered to negate mens rea]. Again, however,this line of due process law does not undermine the right to jury trial, or the requirement of proof beyond a reasonable doubt, and the ban against conclusive and mandatory presump- tions. 10 One of the two due process questions addressed in Clark was "wh- ether Arizona violates due process in restricting consideration of defense evidence of mental illness and incapacity to its bearing on a claim of insanity, thus eliminating its significance directly on the issue of the mental element of the crime charged. .. ." Clark, supra, 548 U.S. 742.4 In rejecting the due process challenge, the Clark court stated: The third principle implicated by Clark’s argument is a defendant’s right as a matter of simple due process to present evidence favorable to himself on an elementthat must be proven to convict him. .. . [f] As Clark recogniz- es, however, the right to introduce relevant evidence can be curtailed if there is a good reason for doing that. Id., at 769-770; footnote omit- ted. The other issue in Clark was whether Arizona’s definition of legal insanity offended due process, which the High Court found it did not. Although the Clark decision contained a great deal of analysis of legal sanity, the types of evidence which may bear on mens rea, and related matters, the conclusions in Clark were narrow: (i) Arizona’s definition of legal sanity did not offend due process; and (ii) Arizona’s exclusion of psychiatric evidence on mens rea did not offend due process. The High Court noted specifically that its decision dealt solely with the choices made by the Arizona Legislature and courts: “/ Unlike California, Arizona’s statutory and case law had established for Arizona courts that not only was "diminished capacity" evidence precluded on mens rea but that psychiatric evidence on "diminished actu- ality" was precluded. 11 It bears repeating that not every State will find it worthwhile to make the judgment Arizona has made... . The point here is simply that Arizona has sensible reasons to assign the risks as it has done by channeling the evi- dence. Id., at 778; footnotes omitted. There is an independent line of Due Process Clause jurisprudence dealing with presumptions in criminal cases. Once a state has defined a crime, has identified the relevant defenses, and has established the rules governing admission of evidence in relation to the crime and defenses, the state may not validly rely on a conclusive presumption to establish an element of the crime or to defeat a defense. See Francis v. Franklin (1985) 471 U.S. 307 ("Francis"); and Sandstrom, supra, 442 U.S. 510. Clark did not address or alter California law, and nothing in Clark undermines the holdings of Sandstrom and Francis barring a "conclusive presumption" as a substitute for proof. Unless and until California law is changed, and unless and until Sandstrom and Francis are abandoned by the United States Supreme Court, Clark has no persuasive relevance here, and Mr. Mills’s federal constitutional claim survives intact. C. Mr. Mills’s Views as to Clark, in Detail. 1. The Two Issues in Clark. The United States Supreme Court began its analysis in Clark by defining the issues before it: The case presents two questions: whether due pro- cess prohibits Arizona’s use of an insanity test stated solely in terms of the capacity to tell whether an act charged as a crime wasright or wrong; and whether Arizona violates due process in restricting consideration of defense evidence 12 of mental illness and incapacity to its bearing on a claim of insanity, thus eliminating its significance directly on the issue of the mental element of the crime charged (known in legal shorthand as the mens rea, or guilty mind). Clark, supra, 548 U.S. at 742. Everything which the Attorney General has to say about Clark, and every alleged implication of Clark to Mr. Mills’s case, must be considered and evaluated in reference to those two issues. 2. The Trial and Appellate Court Proceedings in Clark. The defendant in Clark had been charged with "intentionally or knowingly killing a police officer who wasacting in the line of duty." Id., at 743. Ata court trial, the defendant "relied on his undisputed paranoid schizophrenia at the time of the incident in denying that he had the specific intent to shoot a law enforcement officer or knowledge that he was doing so... ." Jbid. Evidence of mental illness had been offered at the court trial "for two purposes": "to rebut the prosecutor’s evidence of the requisite mens rea, that he had acted intentionally or knowingly"; and (ii) to support "the affirmative defense of insanity," to wit: "that ‘at the time of commission of the criminal act [he] did not know the criminal act was wrong,’ [citation]." Jd., at 744. In declining to permit the defendant to rely on psychiatric or psychological evidence to dispute mens rea, the trial court "cited State v. Mott, 187 Ariz. 536, 931 P.2d 1046 (en banc), cert. denied, 520 U.S. 1234, 117 S. Ct. 1832, 137 L. Ed. 2d 1038 (1997), which ‘refused to allow psychiatric testimony to negate specific intent,’ 187 Ariz., at 541, 931 P. 2d at 1051, and held that ‘Arizona does not allow evidence of a defendant’s mental disorder 13 short of insanity .. . to negate the mens rea element of a crime,’ ibid." Clark, supra, 548 U.S. at 745; footnote omitted. The defendant’s claims on appeal in Arizona were that Arizona’s narrow definition of insanity offended due process, at that Mott's evi- dentiary holding offended due process. The Arizona Court of Appeal rejected these constitutional claims, and the Arizona Supreme Court denied review. The United States Supreme Court "granted certiorari to decide whether due process prohibits Arizona from thus narrowing its insanity test or from excluding evidence of mental illness and incapacity due to mental illness to rebut evidence of the requisite criminal intent. [Citation.]" Clark, supra, 548 U.S. at 747. 3, The Supreme Court’s Resolution of the "Definition of Insanity" Issue. In Part II of its Clark opinion, the United States Supreme Court concluded that Arizona’s definition of insanity did not offend the Due Process Clause. Jd., at 747-756. Although the circumstances ofthat analysis are of little or no concern here, it will be briefly summarized. First, the United States Supreme Court logically viewed the M’Naghtentest of insanity in terms of "cognitive capacity" and "moral capacity." Neither reflects California’s historic -- and now abrogated -- definition of "diminished capacity," which was couched in terms of "diminished responsibility.". As explained in Clark: The first part asks about cognitive capacity: whether a mental defect leaves a defendant unable to understand what he is doing. The second part presents an ostensibly alternative basis for recognizing a defense of insanity understood as a lack of moral capacity: whether a mental 14 disease or defect leaves a defendant unable to understand that his action is wrong. Id., at 747. The United States Supreme Court referred later in Clark to a third type of "capacity" as it applies in the realm oflegal insanity: "The volitional incapacity or irresistible-impulse test .. . asks whether a person was so lacking in volition due to a mental defect or illness that he could not have controlled his actions." Jd., at 749. In a footnote, the Supreme Court stated: "‘Capacity’ is understood to mean the ability to form a certain state of mind or motive, understand or evaluate one’s actions, or control them." J/d., at 749 fn. 7. Clark noted that "[h]istory shows no deference to M’Naghten that could elevate its formula to the level of fundamental principle, so as to | limit the traditional recognition of a State’s capacity to define crimes and defenses, [citation]." bid. The court deemedit "clear that no particular formulation has evolved into a baseline for due process, and that the insanity rule, like the conceptualization of criminal offenses, is substan- tially open to state choice." Jd., at 753. Clark rejected the argument that "someconstitutional minimum has been shortchanged" by Arizona’s abrogation of the "cognitive inca- pacity" test, leaving only the "moral incapacity" test. In so holding, the court stated that "cognitive incapacity is itself enough to demonstrate moral incapacity." Jbid. The court continued: Cognitive incapacity, in other words, is a sufficient condi- tion for establishing a defense of insanity, albeit not a necessary one. As a defendant can therefore make out moral incapacity by demonstrating cognitive incapacity, 15 evidence bearing on whether the defendant knew the nature and quality of his actions is both relevant and admissible. In practical terms, if a defendant did not know what he was doing when he acted, he could not have knownthat he was performing the wrongful act charged as a crime. Id., at 753-754; footnote omit- ted. After noting that "Clark can point to no evidence bearing on insanity that was excluded" (id., at 755-756), the court deemeditself "satisfied that neither in theory nor in practice did Arizona’s 1993 abridgment of the insanity formulation deprive Clark of due process." Jd., at 756. Thus far in Clark, there is little of significance to Mr. Mills’s issue. Nonetheless, it is intriguing to consider the several ways in which the United States Supreme Court defined "capacity," and the United States Supreme Court’s apparent conclusion that lack of "moral capacity" also satisfies the "cognitive capacity" prong under the M’Naghtentest. 4. The Supreme Court’s Resolution of the Due Process Issue Regarding Arizona’s Exclusion at the Guilt Phase of Psychi- atric and Psychological Evidence on the Issue of Mens Rea, in Reference to Both "Diminished Capacity" and "Dimin- ished Actuality." The procedural posture in Clark may have a tendency to "muddy the waters" a bit, for the reason that the issue of guilt and the issue of sanity were heard in a single court trial, with no distinction between a "guilt phase" and a "sanity phase." Thetrial court was receivingall psychiatric and psychological evidence at one proceeding, while not considering that evidence on the issue of guilt (as it bore on mens rea). 16 In that regard, the trial in Clark resembled to an extent a pre-1927 guilt- sanity trial in California, in which the trier of fact was considering both guilt and sanity in a single proceeding, with the state bearing the burden as to guilt and the defendant bearing the burden as to insanity. The legal posture in Clark may also have a tendency to "muddy the waters” a bit, because Arizona law precludes psychiatric and psycho- logical evidence from consideration on the issue of mens rea, in terms of both "diminished capacity" and "diminished actuality." California, of course, precludes such evidence at the guilt phase on "diminished capaci- ty" but not on "diminished actuality." Part III of Clark addressed whether a Due Process Clause violation had occurred when the Arizonatrial court "held that testimony of a professional psychologist or psychiatrist about a defendant’s mental incapacity owing to mental disease or defect . . . could not be considered on the element of mensrea, that is, what the State must show about a defendant’s mental state (such as intent or understanding) when he performed the act charged against him. [Citation.]" Jd., at 756-757. The court identified three "categories of evidence with a potential bearing on mens rea": (i) "‘observation evidence’ in the everyday sense";° (ii) "men- tal-disease evidence";® and (iii) "evidence we will refer to as ‘capacity evidence’ about a defendant’s capacity for cognition and moral judgment °/ This was further described as "testimony from those who observed what Clark did and heard what he said; this category would also include testimony that an expert witness might give about Clark’s tendency to think in a certain way and his behavioral characteristics." Jd., at 757. °/ This was further described as "opinion testimony that Clark suffered from a mental disease with features described by the witness." Id., at 759. 17 (and ultimately also his capacity to form mensrea)." Id., at 758-758. With regard to this latter category of "capacity evidence" in the context of a guilt trial, the court noted that "[hJere, as it usually does, this testimony came from the same experts and concentrated on those specific details of the mental condition that make the difference between sanity and insanity under the Arizona definition." Jd., at 758. In Parts III-B and III-C (id., at 760- 765), the Clark majority concluded that "the only issue properly before us is the challenge to [State v.] Mott on due process grounds, comprising objections to limits on the use of mental-disease and capacity evidence." /d., at 762. In Part III-D, the court deemed the defendant’s Due Process Clause argumentto "Tturn] on the application of the presumption of innocence in criminal cases, the presumption of sanity, and the principle that a criminal defen- dant is entitled to present relevant and favorable evidence on an element of the offense charged against him." J/d., at 765. As for the "presumption of innocence," Clark recognized that this presumption requires that the prosecution "[prove] beyond a reasonable doubt each element of the offense charged [citations], including the mental element or mens rea." Jd., at 766. The court continued, as follows, with regard to the "presumption of sanity": The presumption of sanity is equally universal in some variety or other, being (at least) a presumption that a defendant has the capacity to form the mens rea necessary for a verdict of guilt and the consequent criminal responsi- bility. [Citations.] ... The force of this presumption, like the presumption of innocence, is measured by the quantum of evidence necessary to overcomeit; unlike the presump- tion of innocence, however, the force of the presumption of sanity varies across the many state and federal jurisdictions, and prior law has recognized considerable leeway on the 18 part of the legislative branch in defining the presumption’s strength through the kind of evidence and degree of persua- siveness necessary to overcomeit, [citation]. Id., at 766-767; emphasis added; footnote omitted. Clark identified "two points" at which "the sanity or capacity presumption may be placedin issue." Jd., at 767. The first is familiar to California courts and practitioners, in terms of so-called "diminished actuality," and in terms of the now-abrogated "diminished responsibility" defense: ... [A] State may allow a defendant to introduce (and a factfinder to consider) evidence of mental disease or inca- pacity for the bearing it can have on the government’s burden to show mensrea. [Citation.] In such States the evidence showing incapacity to form the guilty state of mind, for example, qualifies the probative force of other evidence, which considered alone indicates that the defen- dant actually formed the guilty state of mind. . . . In juris- dictions that allow mental-disease and capacity evidence to be considered on par with any other relevant evidence when deciding whether the prosecution has proven mensrea beyond a reasonable doubt, the evidence of mental disease or incapacity need only support what the factfinder regards as a reasonable doubt about the capacity to form (or the actual formation of) the mensrea, in order to require ac- quittal of the charge. Thus, in these States the strength of the presumption of sanity is no greater than the strength of the evidence of abnormal mental state that the factfinder thinks is enough to raise a reasonable doubt. Id., at 767-768. 19 The "second point" at which "the force of the presumption of sanity may be tested is in the consideration of a defense of insanity raised by a defendant." Jd., at 768. The burden that must be carried by a defendant who raises the insanity issue, again, defines the strength of the sanity presumption. A State may provide, for example, that when- ever the defendant raises a claim of insanity by some quan- tum of credible evidence, the presumption disappears and the government must prove sanity to a specified degree of certainty. ... [Citation.] Or a jurisdiction may place the burden of persuasion on a defendant to prove insanity... . In any case, the defendant’s burden defines the presumption of sanity, whether that burden be to burst a bubble or to show something more. Id., at 769. The court then turned to the "third principle" of significance in Clark, which was "a defendant’s right as a matter of simple due process to present evidence favorable to himself on an element that must be proven to convict him." Jbid.; footnote omitted. However, "the right to introduce relevant evidence can be curtailed if there is a good reason for doing that." Jd., at 770. "And if evidence may be kept out entirely, its consideration may be subjectto limitation, .. ." Jbid. In that regard, Arizona law was summarized, as follows: _. . [M]ental-disease and capacity evidence may be consid- ered only for its bearing on the insanity defense, and it will avail a defendant only if it is persuasive enough to satisfy the defendant’s burden as defined by the terms ofthat defense. The mental-disease and capacity evidence is thus being channeled orrestricted to one issue and given effect only if the defendant carries the burden to convince the factfinder of insanity; the evidence is not being excluded 20 entirely, and the question is whether reasons for requiring it to be channeled andrestricted are good enoughto satisfy the standard of fundamental fairness that due process re- quires. Id., at 770-771. Part E of the Clark decision was devoted to the question whether Arizona’s "reasons for requiring it to be channeled and restricted" were "good enoughto satisfy the standard of fundamental fairness... ." Jd, at 771-778. The ultimate conclusions in Part F were: (i) "Arizona’s rule serves to preserve the State’s chosen standard for recognizing insanity as a defense and to avoid confusion and misunderstanding on the part of jurors"; and (i1) "there is no violation of due process ..., and no cause to claim that channeling evidence on mental disease and capacity offends any ‘"principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental,"’ [citation]." /d., at 779. In the course of Part E, the Supreme Court noted repeatedly that it was evaluating Arizona’s law under the Due Process Clause and not dictating an approach which other states must adopt. The court noted "that a State may place a burden of persuasion on a defendant claiming insanity," and that -- if so -- a state "must be able to deny a defendant the opportunity to displace the presumption of sanity more easily when addressing a different issue in the course of the criminaltrial." J/d., at 771. However: "a State is of course free to accept such a possibility in its law." Jd., at 772. A state legislature "may well be willing to allow 21 such evidence to be considered on the mens rea element for whatever the factfinder thinks it is worth." Ibid.’ After discussing in some detail the "good reasons" which Arizona may have had in its evidentiary choices (id., at 773-778), the court again emphasized that other states may validly make other choices: Now,a State is of course free to accept such a possi- bility in its law. . . . the legislature may well be willing to allow such evidence to be considered on the mens rea element for whatever the factfinder thinks it is worth. What counts for due process, however, is simply that a State that wishes to avoid a second avenuefor exploring capacity, less stringent for a defendant, has a good reason for confining the consideration of evidence of mental disease and incapac- ity to the insanity defense. Id., at 778. California, of course, has made other choices. 7/ In a footnote, the court in Clark noted that "diminished capacity" in California had the meaning of "diminished responsibility": "Though the term "diminished capacity" has been given different meanings [cita- tion], California, a jurisdiction with which the concept has traditionally been associated, understood it to be simply a ‘"showing that the defenda- nt’s mental capacity was reduced by mental illness, mental defect or intoxication,"’ People v. Berry, 18 Cal.3d 509, 517, 134 Cal. Rptr. 415, 556 P.2d 777, 781 (1976) (quoting People v. Castillo, 70 Cal.2d 264, 270, 74 Cal. Rptr. 385, 449 P.2d 449, 452 (1969); emphasis deleted), abrogated by Cal. Penal Code Ann. §§ 25(a), 28(a)-(b), 29 (West 1999 and Supp. 2006)." Clark, supra, 548 U.S. at 772 fn. 41. 22 D. Mr. Mills’s Multiple Points of Disagreement With the Attorney General’s Conclusions as to the Purported Significance of Clark. In Clark, the United States Supreme Court noted that it had recognized in Fisher v. United States (1946) 328 U.S. 463, 466-476 that Congress had "considerable leeway" in defining the "strength" of the presumption of sanity "through the kind of evidence and degree or persuasiveness necessary to overcomeit [citation]." Clark, supra, 548 U.S. at 767. The court then added in a footnote: "Although a desired evidentiary use is restricted, that is not the same as a Sandstrom presump- tion." Jd., at 767 fn. 36. Footnote 36 observed that which is self-evident: an evidentiary restriction is not legally equivalent to an instruction creating an unconsti- tutional conclusive presumption. Yet the Attorney General at RBM 14-15 quotes footnote 36 and makes the quantum leap to a conclusion that "appellant’s contrary argument-- that the presumption of sanity instruc- tion acts as a presumption on an element of the offense -- is without merit." RBM 15, footnote omitted. However, an "evidentiary restriction" bears on whatthe jury is allowed to hear and consider, while an unconsti- tutional mandatory presumption is an "evidentiary device" which is forbidden because ofits dual effects of shifting the burden to the defen- dant and requiring the jury to find an "elemental fact" upon proof of a “basic fact." Ulster County Court v. Allen (1979) 442 U.S. 140, 157. At RBM 16, the Attorney General quotes Clark to the effect that a state may deny to the defendant the ability "to displace the presumption of sanity more easily" at the guilt phase than at the sanity phase. The Attorney General at RBM 17 contendsthat this court made the same point in Blacksher, supra, 52 Cal.4th at 832, when it found no error in 23 the rejection of a proposed defense instruction because the "instruction would, in effect, have resurrected the defense of diminished capacity." The Attorney General asserts further that Mr. Mills "may not bypass the sanity phaseof a trial by seeking to raise reasonable doubt based on a lack of capacity to form the requisite mental state... ." RBM 17. However, there was nothing in Mr. Mills’s defense attrial, or in the other instructions his jury would hear, which tendedto raise "legal insanity" or "diminished capacity" in the context of his guilt trial. The guilt phase jury was to hear CALJIC 3.32,to inform them as follows: You have received evidence regarding a mental disease or mental disorder of the defendant at the time of the commission of the crime charged in Count One, namely murder, or a lesser crime thereto, namely voluntary man- slaughter. You should consider this evidence solely for the purpose of determining whether the defendant actually formed the required specific intent, premeditated, deliberat- ed or harbored malice aforethought, which is an element of the crime charged in Count One, namely murder. 8RT 1196." Nothing in this instruction -- or any other -- raised the potential for Mr. Mills’s jury to rely on “legal insanity" or "diminished capacity" at the guilt phase, and the "conclusive presumption of sanity" instruction was entirely unnecessary. 8/ The jury was also to hear CALJIC 5.16, which included the following: "There is no malice aforethoughtif the killing occurred in the actual but unreasonable belief in the necessity to defend oneself against imminentperil to life or great bodily injury." 8RT 1199-1200. 24 Withoutcitation to the Opening Brief on the Merits -- and there could be no such citation -- it is wrongly asserted at RBM 18 that "[a}ppellant . . . argues that if evidence of incapacity could show insanity, it would be at least doubtful that the defendant could form the mental state required for guilt, thus precluding a guilty verdict in the first place." Mr. Mills made no such argument, nor anything remotely similar to such an argument. His argument was that there was evidence of mental disease and defect in his case from which the jury could readily have concluded that he did not premeditate, that he did not deliberate, that he did not intend to kill, and/or that he acted in imperfect self-defense. Mr. Mulls never made any contention with respect to his "capacity," "dimin- ished," "cognitive," "moral," or otherwise. At RBM 19-20, the Attorney General quotes the Court of Appeal’s Slip opinion, at pages 21-22, where it is stated that "it does no harm to instruct the jury of the state’s policy that, for the purpose of proceedings devoted to [the guilt] determination, the presumption is one ofsanity." Emphasis added. With deference, the initial question is whether the Court of Appeal’s "no harm" conclusion is valid, in light of Sandstrom, and Mr. Mills submits with deference that the Court of Appeal was wrong on this point. The further question is whether such an instruction added something to the jury’s universe of knowledge which would bear even remotely on the guilt issues, and neither the Court of Appeal nor the Attorney General had identified what that "something" might be. The quoted portion of the Slip opinion also includes that "it makes eminent sense for the jury to be told that sanity is not to be considered in the determination of guilt." Emphasis added. However, the jury in Mr. Mills’s case was nottold that "sanity [was] not to be considered in the 25 determination of guilt.". Mr. Mills’s jury was told that his sanity was to be conclusively presumed against him in the dete rmination of guilt. Moreover, whatever "sense" there might be in suc h a "conclusive presumption of sanity" instruction -- which Mr. Mil ls continues to dispute -- it would only make "sense" if the jury knew wh at was meant by "sanity" in this context. Yet the trial court flatly ref used to define the term "legally insane" which the jury was told was to be "conclusively presumed" against Mr. Mills at the guilt phase. At RBM 20, the Attorney General arguesthat the "c onclusive presumption ofsanity" instruction “correctly channel ed the jury’s consid- eration of the mental state evidence." The reasonin g appearsto bethat, if the guilt phase jury had not been told that Mr. Mills was "conclusively presumed to have been legally sane," the jury at the guilt phase might have returned a verdict of legally insane at the guilt phase. If that represents the Attorney General’s concern, it run s afoul of a basic presumption of California law, which is that jur ors are presumed to follow the instructions they hear. People v. Bonin (1 988) 46 Cal.3d 695, 699.° Legally and logically, there was no chance that M r. Mills’s guilt phase jury would find him legally insane, with or wit hout a "conclusive presumption ofinsanity" instruction. At RBM 20, the Attorney General argues that "[i]t woul d avail the state little to have the authority Clark confers if the stat e is not also permitted to instruct the jury of the distinction it has m ade between guilt and sanity." Mr. Mills has never argued that his jury sho uld not know °/ “The crucial assumption underlying our constitutional system of trial by jury is that jurors generally understand and faithf ully follow instructions. Citation]" People v. Mickey (1991) 54 Cal. 3d 612, 689 fn. 17. 26 that the trial was to have two phases, that the first phase was to concern the question of his guilt of crime under instructions relevant to guilt, and that the second phase was to concern the issue of "legal sanity" under instructions relevant to that issue. His complaint was in the giving of a substantive instruction that he was "conclusively presumed to have been legally sane," and to have refused to explain what "legally sane" meant, all of which allowed the jury to give the legally technical term "sane" whatever lay meaning the jurors adopted. Moreover, the argumentis specious that it "would avail the state little to have the authority Clark confers" -- the powerto limit evidence and define sanity -- if the state is not permitted also to give a "conclusive presumption of sanity" instruction at the guilt phase. Practically and legally, this argument differs little from a contention that it "would avail the state little to have the authority" to define the elements of crimes if the state were not permitted to prove those elements on proof less than beyond a reasonable doubt. Mr. Mills will belabor this issue no further. In relation to Mr. Mills’s claim of error, Clark is used by the Attorney General as a make- weight. While Clark may have broadsignificance in Arizona, and broad significance to other due process doctrines, it has no persuasive force on the Sandstrom issue presented here. 27 I THE ATTORNEY GENERAL FAILS TO DEMONSTRATE THAT THE OTHER INSTRUCTIONS OR ARGUMENTS OF COUNSEL EITHER PREVENTED CONSTITUTIONAL ERROR IN THE FIRST INSTANCE OR RENDERED THAT ERROR NOT PREJUDICIAL. A. Introduction. At RBM 21-23, the Attorney General addresses the other instruc- tions and arguments of counsel. It is not entirely clear whether this discussion is purported to establish that the jury would not haveinter- preted the "conclusive presumption of sanity" instruction as creating an unconstitutional presumption, or purportedly to establish that Mr. Mills did not suffer prejudice from the unconstitutional presumption. In either event, the Attorney’s General’s arguments are unpersuasive. B. The Instructions and Argument Did Not Avoid Constitutional Error. If the former possibility reflects the Attorney General’s position, it fails to satisfy standards articulated by the United States Supreme Court. With an allegedly improper presumption, the question turns on "the way in which a reasonable juror could have interpreted the instruction" (Sandstrom, supra, 442 U.S. at 514), and a possibility the jury may not have relied on the presumption does not cure the error. Jd., at 526. Other instructional "[l]Janguage that merely contradicts and does not explain a constitutionally infirm instruction will not suffice to absolve the infirmity," because "[a] reviewing court has no way of knowing which of the two irreconcilable instructions the jurors applied in reaching their verdict." Francis, supra, 471 U.S. at 322; footnote omitted. Finally, 28 instructions on the presumption of innocence and reasonable doubt standard are insufficient to explain and qualify an infirm instruction. Id., at 319. Whenthese standards are brought to bear on the Attorney Gen- eral’s argument, it is clear that "a reasonable juror could have interpreted the instruction" as Mr. Mills fears. Sandstrom, supra, 442 U.S. at 514. No other instruction "explained" the "conclusive presumption of sanity" instruction so as to cure its "infirmity," and no other instruction told the jurors to ignore the "conclusive presumption of sanity" instruction in determining guilt. Francis, supra, 471 U.S. at 322. The best the Attor- ney General has done is to identify CALJIC 3.32 as an instruction a juror might have found to conflict with the constitutionally infirm instruction, and this court cannot know "which of the two irreconcilable instructions" was heeded by the jurors. Jbid. C. The Instructions and Argument Did Not Render the Constitutional Error Non-Prejudicial. If the Attorney General is arguing that Mr. Mills suffered no prejudice from theinstruction, the issue is whether the State can demon- strate beyond a reasonable doubt that the error did not contribute to the verdict. See Carella v. California (1989) 491 U.S. 263, 266-267, dis- cussing Rose v. Clark (1986) 478 U.S. 570, 580-581. To say that an error did not contribute to the verdict is, rather, to find that error unimportant in relation to every- thing else the jury considered on the issue m question, as revealed in the record. Thus, to say that an instruction to apply an unconstitutional presumption did not contribute to the verdict is to make a judgment about the significance of the presumption to reasonable jurors, when measured 29 against the other evidence considered by those jurors inde- pendently of the presumption. Yates v. Evatt (1991) 500 U.S. 391, 403-404. The Attorney General omits entirely to discuss the trial evidence. As a result, no argument is advanced by respondent to support a conclu- sion that the constitutionally invalid instruction did not contribute to the verdict on premeditation and deliberation, on intent to kill, or on imper- fect self-defense. Thus was the constitutional violation prejudicial at every level of homicide liability, which would leave only voluntary manslaughter as a level of guilt which was not prejudiced by the infirm instruction. 30 IV THE LOGIC OF PATTERSON AND STARK, WHILE NOT BINDING ON CALIFORNIA COURTS, REMAINS LOGICALLY AND LEGALLY PERSUASIVE. At RBM 23-26, the Attorney General urges this court not to be influenced by the Ninth Circuit’s analysis in Patterson v. Gomez, supra, 223 F.3d 559 and Stark v. Hickman, supra, 455 F.3d 1070. It is argued first that Ninth Circuit authority is not binding in California (RBM 23), a point which Mr. Mills cannot dispute. It is argued second that Patterson and Stark have been eclipsed by Clark (RBM 23-24), a contention which was addressed at length in Argument I, above. It is argued third that Patterson’s reliance on People v. Burton (1971) 6 Cal.3d 375 was misplaced (RBM 24); yet the linchpin of the Patterson analysis was not Burton but Francis v. Franklin, 471 U.S. 325: The Supreme Court wrote in Francis, Because a reasonable juror could have under- stood the challenged portions of the jury instruction in this case as creating a mandatory presumption that shifted to the defendant the burden of persuasion on the crucial element of intent, and because the charge read as a whole does not explain or cure the error, we hold that the jury charge does not comport with the requirements of the Due Process Clause. 471 U.S. at 325 (emphasis added). If the italicized word "intent" is changed to "mental state," this language captures our case precisely. Patterson, supra, 223 F.3d at 967; emphasis in original. 31 At RBM 24,it is asserted that Patterson’s analysis is "highly flawed" because the Ninth Circuit "speculated about the definition of sanity the jury might have used,"in light of Patterson’s reference to a dictionary. However, this was not "speculation"; it was precisely the analysis undertaken in Sandstrom -- by reference to a dictionary -- in resolving how "a reasonable jury could have interpreted" the presumption at issue in Sandstrom. See Sandstrom, supra, 442 U.S. at 517. Also in footnote 10 at RBM 24, the Attorney General defends the trial court’s refusal to define legal insanity as a "decision not to confuse the jury with instructions on what it was not deciding . . ." This conten- tion is cruelly ironic, because that is Mr. Mills’s core claim of error: his jury should not have been confused by an instruction on an issue which his jury was not deciding at the guilt phase. At RBM 25, Patterson’s analysis is faulted purportedly because "Ta] defendant can suffer from mental disease and yet be sane, as any rational juror would understand." While a "rational" criminal appellant practitioner may knowthis to be true, it is a counter-imtuitive notion, and such understanding comes only after years of legal experience. Turning to Stark v. Hickman supra, 455 F.3d 1070, it is contended at RBM 25 that Stark failed to consider Clark. This omission, however, is entirely understandable, since Clark had nothing to do with the Sand- strom issue being decided in Stark. In sum, there is nothing in the Attorney General’s criticisms of Patterson and Stark which undermines their persuasive force. They should serve as a guide for this court’s resolution of Mr. Mills’s issue. 32 Vv THE ATTORNEY GENERAL’S PEREMPTORY DISMISSAL OF THE STATE LAW ARGUMENTS-- IN A FOOTNOTE-- FAILS TO GIVE PROPER DEFERENCE TO PRIOR DECISIONS OF THIS COURT. At OBM 52-55, Mr. Mills discussed decisions of this court dealing with instructions on legal principles of no relevance to the issues before the jury, and instructions containing technical legal terms. Cited were cases such as People v. Anderson, supra, 63 Cal.2d 351 and People v. Roe, supra, 189 Cal. 548. The Attorney General’s entire response appears at RBM 23 fn.9, where Clark is cited. In view of the Attorney General’s declination to address these matters, Mr. Mills has no reply. 33 CONCLUSION For the foregoing reasons, and for the reasons stated in the Open- ing Brief on the Merits, Mr. Mills submits that error occur red, under the Sixth and Fourteenth Amendments, and under Califo rnia law. The judgment should be reversed and remanded for a new tri al, with appropri- ate instructions. Dated: November 21, 2011 Respectfully sub mitted, form KYLE GEE Attorney for Appellant AHKIN R. MILLS 34 CERTIFICATE OF WORD COUNT IN COMPLIANCE WITH RULE 33, SUBDIVISION (B) I hereby certify, pursuant to Rule 8.504, California Rules of Court, that the attached brief contains 8212 words. In this certificate, | am relying on the word count produced by Wordperfect 5.1. Dated: November 21, 2011 foe KYLE GEE Attorney for Appellant AHKIN R. MILLS PROOF OF SERVICE I declare that: I am employed in the County of Alameda, California. I am over the age of eighteen years and not a party to the within cause; my business address is 2626 Harrison Street, Oakland, California 94612. On November21, 2011, I served the within APPELLANT’S REPLY BRIEF ON THE MERITSontheinterested parties in said cause, by placing a true copy thereof enclosed in a sealed envelope with postage thereon fully prepaid, in the United States Mail at Oakland, California, addressed as follows: Attorney General Hon. Larry J. Goodman, Judge Department of Justice c/o Superior Court Clerk 455 Golden Gate Avenue Alameda County Suite 11000 1225 Fallon Street San Francisco, CA 94102-3664 Oakland, CA 94612 FDAP District Attorney 730 Harrison St., #201 1225 Fallon Street, Room 900 San Francisco, CA 94107 Oakland, CA 94612 Ahkin R. Mills Marvin Lew, Esq. AA4742 Dalton & Lew CSP - Corcoran 214 Duboce Avenue PO Box 8800 San Francisco, CA 94103 Corcoran, CA 93212-8309 Court of Appeal, First Appellate District, Division Two, Earl Warren Building, 350 McAllister Street, San Francisco, CA 94102 I declare under penalty of perjury that the foregoing is true and correct, and that this declaration was executed on November 21, 2011 at Oakland, California. Lauren Osher