This serves as a critical check on thearbitrary and capricious impositionofthe death penalty. Here however, the Section 190.4 hearing as flawed, and the death sentence was unreliable. This constitutional infirmity further adds to the cumulative errors set forth in this claim.

In People v. Weaver, supra, 53 Cal.4th 1056, this Court rejected the same constitutional claim that appellant presents here. There, defendant claimed that section 190.4, subdivision (e), was unconstitutional becauseit failed to provide a mechanism for an independentreview ofa trial court’s penalty phase verdict. (/d. at p. 1091.)

" (Ring, supra, 530 U.S. at 604.) Section 190, subd. (a) provides that the punishment for first degree murder is 25 years to life, life without possibility of parole ("LWOP"), or death; the penalty to be applied "shall be determined as provided in Sections 190.1, 190.2, 190.3, 190.4 and 190.5." Neither LWOP nor death can be imposed unless the jury finds a special circumstance (section 190.2).

(Ring, supra, 536 U.S. at 604.) Penal Code section 190, subd. (a) provides that the punishmentfor first-degree murder is 25 yearsto life, life without possibility of parole (““LWOP”), or death; the penalty to be applied “shall be determined as provided in Sections 190.1, 190.2, 190.3, 190.4 and 190.5.” Neither LWOP nor death can be imposed unless the jury finds a special circumstance(section 190.2).

In California, when ajury convicts a defendantoffirst degree murder, the maximum punishmentis imprisonment for a term of 25 yearstolife. (Pen. Code, § 190, subd.(a) [cross-referencing §§ 190.1, 190.2, 190.3, 190.4 and 190.5].) When the jury returns a verdict offirst degree murder with a true finding of a special circumstance listed in Penal Code section 190.2, the penalty range increasesto either life imprisonment without the possibility of parole or death. (Pen. Code, § 190.2, subd. (a).)

(47 CT 12705; 36 RT 7216-7218.) OnJuly 22, 2005, the trial court denied Avila’s motionsfor a newtrial and modification of the death verdict (§§ 1181 and 190.4, subd (e)), and sentenced him to death. The court stayed execution of the term related to the non-homicide offenses pursuant to section 654. (48 CT 12810; 36 RT 7243-7244.)

(3) Admission ofletters written by co-defendant Hajek, over objection of appellant Vo.*” '? Co-defendant Hajek also filed a Motion for New Trial (CT 2752- 2755), supported by the Declaration of Brenda Wilson, a paralegal who attended an interview with three jurors on August 10, 1995. (CT 2756- 2757.) Also pending before the trial court was appellant Vo’s Motion to Reduce Death Verdict to the Penalty of Life Imprisonment Without the Possibility of Parole [Penal Code §190.4(e); §1181(7)], filed on August 16, 1995. (CT 2730-2740.) That motion was supported by the Declaration of Jeanne DeKelver, appellant’s second counsel, relating conversations with several jurors after the penalty phase(thefirst also attended by the prosecutor and an investigator for the Public Defender, and the second also attended by counsel for co-defendant Hajek).

° However, under the harsher 1978 death penalty statute, California reverted to the minority group of states which permit such penalty retrials. (Pen. Code, § 190.4, subd. (b).) This position is followed by statute in only seven other states: Alabama, Arizona, Delaware, Florida, Indiana, Montana and Nevada.

273 Cal.3d-907, 938.) The motion should have been granted in appellant’s case, andthe death sentence should have been modifiedto life without possibility ofparole following the Penal Code section 190.4(e) hearing. Apart from the discretion contemplated by the statute, this Court has an obligation to give . the sentence meaningful appellate review.

(Ring, supra, 530 U.S. at 604.) Section 190, subd. (a), provides that the punishment for first degree murder is 25 years to life, life without possibility of parole ("LWOP"), or death; the penalty to be applied "shall be determined as provided in Sections 190.1, 190.2, 190.3, 190.4 and 190.5." Neither LWOP nor death can be imposed unless the jury finds a special circumstance (section 190.2).