In The Supreme Court of California

No.
S070686
IN THE SUPREME COURT OF CALIFORNIA
THE PEOPLE OF THE STATE OF LOS ANGELES COUNTY

CALIFORNIA, SUPERIOR COURT
Plaintiff and Respondent, Superior Court Case

No. BA102638
v.
GERARDO ROMERO,
Defendant and Appellant.
ON AUTOMATIC APPEAL
FROM A JUDGMENT AND SENTENCE OF DEATH
Superior Court of California, County of Los Angeles

The Honorable Charles E. Horan, Judge Presiding
APPELLANT’S OPENING BRIEF
Stephen M. Lathrop (S.B. #126813)

21143 Hawthorne Blvd., #950
Torrance, CA 90503-4615
Tel. 310.237.1000, ext. 3; Fax 310.237.1010
Attorney for Defendant/Appellant

GERARDO ROMERO
TOPICAL INDEX
Page
INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
STATEMENT OF APPEALABILITY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
STATEMENT OF FACTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
A. GUILT PHASE – PROSECUTION’ S CASE ...................... 6
1. VIDEO STORE INCIDENT INVOLVING EUGENE

AFABLE ( COUNT 1) ............................... 6
2. NORTH BONNIE BRAE STREET INCIDENT INVOLVING

REYNALDO HAU, FRANCISCO PICENO, GABRIEL HAU
CRUZ, AND JOSE AGUILAR ( COUNTS 2-6) .............. 10
3. SEARCH OF APPELLANT’ S BEDROOM ................. 15
4. PROSECUTION’ S GANG TESTIMONY .................. 16
5. STIPULATION RE: SAME FIREARM USED IN BOTH THE

VIDEO STORE AND NORTH BONNIE BRAE STREET
INCIDENTS ..................................... 18
B. GUILT PHASE – DEFENSE CASE ........................... 19
C. PENALTY PHASE – PROSECUTION’ S CASE ................... 26
1. VIOLENT CRIMINAL ACTIVITY ...................... 27
a. AX ASSAULT ON TONY SCHMIDT .............. 27
b. ATTEMPTED ROBBERY OF VICTOR CAN AND

RESULTING FELONY CONVICTION FOR
ATTEMPTED ROBBERY ...................... 28
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c. SHOOTING AT THE RESIDENCE OF
GUSTAVO ROSAS ON NORTH BONNIE BRAE
STREET .................................. 29
d. ASSAULT ON DUK AN ....................... 30
e. ASSAULT ON ISAAC GONZALES, WHICH THE JURY

HEARD BUT THEN WAS TOLD TO DISREGARD ..... 31
f. ASSAULT ON ENRIQUE DIAZ .................. 32
2. VICTIM IMPACT EVIDENCE ......................... 32
D. PENALTY PHASE – DEFENSE CASE ........................ 34
1. CLINICAL ASSESSMENT OF MENTAL HEALTH ISSUES

ADVERSELY AFFECTING APPELLANT ................. 34
2. CHARACTER WITNESSES ROSALBA ROMERO, MARIA

SOSA, ANGELINA ROMERO, MARTIN UITZ AND YENISSEN
DE SANTIAGO ................................... 36
ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
GUILT PHASE ISSUES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
I. THE EVIDENCE IS INSUFFICIENT AS A MATTER OF LAW

TO SUSTAIN THE FINDING THAT APPELLANT
PERPETRATED THE KILLING OF EUGENE AFABLE,
ESPECIALLY WHEN CONSIDERING THE HEIGHTENED
VERDICT RELIABILITY REQUIREMENT AT THE GUILT
PHASE OF A CAPITAL TRIAL, THEREBY REQUIRING
REVERSAL OF APPELLANT’S CONVICTION IN COUNT 1 AS
A DENIAL OF DUE PROCESS (CAL. CONST., ART. 1, § 15; U.S.
CONST., 5 TH , 8 TH & 14 TH AMENDS.) . . . . . . . . . . . . . . . . . . . . . . . . . . 40
A. INTRODUCTION AND SUMMARY OF ARGUMENT ............... 40
B. STANDARD OF REVIEW ................................. 41
-ii-
C. THERE IS INSUFFICIENT EVIDENCE, WHICH IS REASONABLE,
CREDIBLE, AND OF SOLID VALUE, TO SUSTAIN THE FINDING
THAT APPELLANT PERPETRATED THE KILLING OF EUGENE
AFABLE ............................................. 44
II. THE EVIDENCE IS INSUFFICIENT AS A MATTER OF LAW

TO SUSTAIN THE FINDING THAT APPELLANT COMMITTED
THE MURDER OF EUGENE AFABLE WITH PREMEDITATION
AND DELIBERATION, THEREBY RESULTING IN A DENIAL
OF DUE PROCESS (CAL. CONST., ART. 1, § 15; U.S. CONST.,
5 TH , 8 TH & 14 TH AMENDS.) AND REQUIRING THE
CONVICTION IN COUNT 1 TO BE REDUCED TO SECOND-
DEGREE MURDER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
A. INTRODUCTION AND SUMMARY OF ARGUMENT ............... 53
B. STANDARD OF REVIEW ................................. 54
C. THE PROSECUTION FAILED TO SUSTAIN ITS BURDEN OF PROVING

THAT APPELLANT COMMITTED THE MURDER WITH
PREMEDITATION AND DELIBERATION ...................... 54
III. THE TRIAL COURT PREJUDICIALLY ERRED IN FAILING TO

SUA SPONTE INSTRUCT THE JURY IN CONNECTION WITH
COUNT 2 (REYNALDO HAU) ON EXPRESS-MALICE
SECOND-DEGREE MURDER, A LESSER INCLUDED
OFFENSE OF THE CHARGE OF FIRST-DEGREE MURDER . . . . . 62
A. INTRODUCTION AND PROCEDURAL BACKGROUND ............ 62
B. THE TRIAL COURT IS REQUIRED TO INSTRUCT THE JURY SUA

SPONTE AS TO ALL LESSER INCLUDED OFFENSES, AND AS TO ALL
THEORIES OF LESSER INCLUDED OFFENSES, SUPPORTED BY THE
EVIDENCE ........................................... 63
C. EXPRESS- MALICE SECOND- DEGREE MURDER IS A LESSER

INCLUDED OFFENSE OF FIRST- DEGREE MURDER AS CHARGED IN
COUNT 2 ............................................ 65
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D. THE TRIAL COURT PREJUDICIALLY ERRED BY FAILING TO
INSTRUCT THE JURY ON THE LESSER INCLUDED OFFENSE OF
EXPRESS- MALICE SECOND- DEGREE MURDER BECAUSE
SUBSTANTIAL EVIDENCE EXISTS TO SUPPORT A FINDING OF THE
LESSER OFFENSE AND THE FAILURE TO SO INSTRUCT FORCED
THE JURY INTO AN UNWARRANTED ALL- OR- NOTHING CHOICE
TO CONVICT OF THE GREATER OFFENSE OR ACQUIT ........... 67
IV. THE OFF-THE-RECORD, UNREPORTED DISCUSSIONS

BETWEEN INTERPRETERS AND TESTIFYING WITNESSES
GABRIEL HAU CRUZ, FRANCISCO PICENO, AND VICTOR
CAN PREJUDICIALLY DENIED APPELLANT THE SIXTH
AMENDMENT RIGHT TO CONFRONTATION AND TO BE
PRESENT AT ALL CRITICAL STAGE OF THE CRIMINAL
PROCEEDINGS, THE RIGHT TO DUE PROCESS UNDER THE
FOURTEENTH AMENDMENT, THE CALIFORNIA
CONSTITUTIONAL AND STATUTORY RIGHT TO AN
INTERPRETER THROUGHOUT THE PROCEEDINGS, AND
THE RIGHT TO AN ADEQUATE RECORD ON APPEAL . . . . . . . . 74
V. THE TRIAL COURT’S EXPLANATIONS AND INSTRUCTIONS

TO THE JURY, WHICH PERMITTED A FINDING OF GUILT
BASED ON EVIDENCE OF APPELLANT’S ASSOCIATION
WITH THE ROCKWOOD GANG, DEPRIVED APPELLANT OF
HIS SIXTH AND FOURTEENTH AMENDMENT RIGHTS TO
DUE PROCESS AND A FAIR TRIAL BECAUSE THERE WAS
NO SUBSTANTIAL, CREDIBLE EVIDENCE THAT THE
OFFENSES WERE GANG-RELATED . . . . . . . . . . . . . . . . . . . . . . . . 80
VI. THE TRIAL COURT ERRONEOUSLY INSTRUCTED THE JURY

IN CONNECTION WITH COUNT 1 (EUGENE AFABLE) THAT
IT COULD NOT RETURN A VERDICT OF SECOND-DEGREE
MURDER UNLESS IT FIRST UNANIMOUSLY ACQUITTED
APPELLANT OF FIRST-DEGREE MURDER, THEREBY
REQUIRING REVERSAL OF APPELLANT’S CONVICTION IN
COUNT 1 FOR A VIOLATION OF THE STATE AND FEDERAL
CONSTITUTIONAL RIGHTS TO DUE PROCESS AND JURY
TRIAL (CAL. CONST., ART. I, §§ 7, 15, 17; U.S. CONST., 5 TH ,
6 TH , 8 TH , AND 14 TH AMENDS.) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 90
-iv-
B. REQUIRING A CAPITAL CASE JURY TO UNANIMOUSLY ACQUIT

ON THE GREATER OFFENSE BEFORE BEING PERMITTED TO
CONVICT OF A LESSER INCLUDED OFFENSE VIOLATES DUE
PROCESS, JURY TRIAL, AND EIGHTH AMENDMENT GUARANTEES .. 91
C. APPELLANT WAS SEVERELY PREJUDICED BY THE ACQUITTAL-

FIRST INSTRUCTION BECAUSE THE EVIDENCE DOES NOT
NECESSARILY SUPPORT A CONVICTION FOR THE GREATER
OFFENSE OF FIRST- DEGREE MURDER ....................... 95
VII. THE TRIAL COURT’S UNILATERAL CORRECTION OF THE

REPORTER’S TRANSCRIPT FOR ACCURACY OF A
MATERIAL MATTER NOT SUPPORTED BY THE RECORD
PREJUDICIALLY DEPRIVED APPELLANT OF DUE PROCESS
OF LAW AND A COMPLETE AND ACCURATE RECORD OF
THE TRIAL PROCEEDINGS ADEQUATE FOR A FAIR
DISPOSITION OF THE INSTANT APPEAL . . . . . . . . . . . . . . . . . . . . 98
B. THE TRIAL JUDGE’ S CHANGE TO THE REPORTER’ S TRANSCRIPT

OF A MATERIAL MATTER THAT WAS NEITHER AMBIGUOUS NOR
CONTRADICTED BY THE RECORD, NOR WAS A GRAMMATICAL
ERROR, BY TAKING TESTIMONY FROM THE PROSECUTOR AND
BY REFERRING TO HIS OWN MEMORY OF THE TRIAL
PROCEEDINGS SUBVERTED THE PROPER RECORD CORRECTION
PROCESS AND THEREBY DEPRIVED APPELLANT OF DUE PROCESS
OF LAW AND THE RIGHT TO A FULL AND ACCURATE RECORD
ADEQUATE FOR APPELLATE REVIEW ...................... 101
C. APPELLANT WAS PREJUDICED BY THE TRIAL COURT’ S

ERRONEOUS CHANGE TO THE REPORTER’ S TRANSCRIPT
BECAUSE THE ORIGINAL REPORTER’ S TRANSCRIPT CONTAINED
AN UNSETTLED MATERIAL AMBIGUITY CONCERNING THE
MANNER IN WHICH THE SPECIAL CIRCUMSTANCE ALLEGATIONS
SHOULD BE CONSIDERED ............................... 106
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VIII. THE GUILT AND PENALTY PHASE INSTRUCTIONS
DILUTED THE PROSECUTION’S BURDEN OF PROOF
BEYOND A REASONABLE DOUBT IN VIOLATION OF
APPELLANT’S STATE AND FEDERAL CONSTITUTIONAL
RIGHTS TO DUE PROCESS, JURY TRIAL, A UNANIMOUS
JURY VERDICT, TO PRESENT A DEFENSE, AND TO
RELIABLE, INDIVIDUALIZED AND NON-ARBITRARY GUILT
AND SENTENCING DETERMINATIONS (CAL. CONST., ART.
I, §§ 7, 15, 17; U.S. CONST., 5 TH , 6 TH , 8 TH , AND 14 TH AMENDS.) . . 108
IX. APPELLANT’S EXCLUSION FROM PROCEEDINGS IN THE

MIDST OF GUILT-PHASE DELIBERATIONS ON THE JURY’S
NOTE REQUESTING INFORMATION – A CRITICAL STAGE
OF THE CRIMINAL PROCEEDINGS – PREJUDICIALLY
DENIED APPELLANT THE SIXTH AMENDMENT RIGHT TO
CONFRONTATION, THE RIGHT TO DUE PROCESS UNDER
THE FOURTEENTH AMENDMENT, THE RIGHT TO BE
PERSONALLY PRESENT WITH COUNSEL “IN A CRIMINAL
CAUSE” UNDER ARTICLE I, SECTION 15, OF THE
CALIFORNIA CONSTITUTION, AND HIS STATUTORY RIGHT
TO BE PRESENT AT TRIAL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 117
X. APPELLANT’S FEDERAL CONSTITUTIONAL RIGHTS WERE

VIOLATED WHEN THE TRIAL COURT INSTRUCTED THE
JURY DURING VOIR DIRE IN THE LANGUAGE OF CALJIC
NO. 17.41.1 – THE DISAPPROVED “JUROR SNITCH”
INSTRUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 125
XI. THE CUMULATIVE EFFECT OF THE GUILT PHASE ERRORS

IN THIS CASE REQUIRES REVERSAL OF APPELLANT’S
CONVICTIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 130
PENALTY PHASE AND SENTENCING ISSUES . . . . . . . . . . . . . . . . . . 133
XII. THE DEATH VERDICT AND APPELLANT’S SENTENCE

MUST BE REVERSED FOR LACK OF JURISDICTION
BECAUSE SUBSTANTIAL EVIDENCE WAS PRESENTED
DURING THE PENALTY PHASE TRIAL THAT APPELLANT IS
DEVELOPMENTALLY DISABLED, WHICH REQUIRED
IMMEDIATE SUSPENSION OF CRIMINAL PROCEEDINGS
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AND THE APPOINTMENT OF THE DIRECTOR OF THE
REGIONAL CENTER FOR THE DEVELOPMENTALLY
DISABLED TO EVALUATE APPELLANT, THEREBY
DEPRIVING APPELLANT OF HIS STATE AND FEDERAL
CONSTITUTIONAL RIGHTS TO DUE PROCESS (CAL.
CONST., ART. 1, § 15; U.S. CONST., 5 TH , 8 TH & 14 TH AMENDS.) . 133
A. INTRODUCTION AND SUMMARY OF ARGUMENT .............. 133
B. THE EVIDENCE PRESENTED DURING THE PENALTY PHASE TRIAL

WAS SUFFICIENT TO RAISE A “ SUSPICION” THAT APPELLANT IS
DEVELOPMENTALLY DISABLED, THEREBY REQUIRING
REVERSAL OF THE DEATH VERDICTS AND SENTENCE FOR LACK
OF JURISDICTION ..................................... 134
XIII. THE DEATH JUDGMENT MUST BE REVERSED FOR A

VIOLATION OF THE CONFRONTATION CLAUSE OF THE
SIXTH AMENDMENT BECAUSE THE TRIAL COURT
PREJUDICIALLY ERRED IN PERMITTING, OVER DEFENSE
OBJECTION, DEPUTY KEVIN BURKE TO TESTIFY ABOUT
THE OUT-OF-COURT STATEMENTS MADE TO HIM BY
TONY SCHMIDT IDENTIFYING APPELLANT AS THE
PERPETRATOR OF AN AX ATTACK UPON HIM . . . . . . . . . . . . . 141
A. INTRODUCTION AND PROCEDURAL BACKGROUND ........... 141
B. THE ADMISSION OF SCHMIDT’S TESTIMONIAL STATEMENTS

AGAINST APPELLANT, WHERE APPELLANT HAD NO
OPPORTUNITY TO CROSS- EXAMINE SCHMIDT, VIOLATED
APPELLANT’S RIGHT TO CONFRONTATION UNDER THE SIXTH
AMENDMENT ........................................ 144
C. THE JURY’ S CONSIDERATION OF SCHMIDT’ S STATEMENTS

ABOUT THE AX ATTACK WARRANTS REVERSAL OF THE DEATH
JUDGMENT BECAUSE IT CANNOT BE PROVED BEYOND A
REASONABLE DOUBT THAT THE EVIDENCE DID NOT
CONTRIBUTE TO THE DEATH VERDICT ..................... 147
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XIV. THE TRIAL COURT PREJUDICIALLY ERRED IN FAILING TO
GIVE FULL AND ACCURATE INSTRUCTIONS ON THE
ELEMENTS OF DEATH QUALIFICATION AND THE
PROSECUTION’S BURDEN, AND BY PLACING THE BURDEN
ON THE JURY TO DETERMINE WHICH GUILT PHASE
INSTRUCTIONS APPLY AT THE PENALTY PHASE, THEREBY
REQUIRING REVERSAL OF THE DEATH VERDICT FOR A
VIOLATION OF APPELLANT’S STATE AND FEDERAL
CONSTITUTIONAL RIGHTS TO DUE PROCESS, JURY TRIAL,
TO PRESENT A DEFENSE, TO A PENALTY DETERMINATION
BASED ON ALL AVAILABLE MITIGATING EVIDENCE, AND
TO A RELIABLE DETERMINATION OF PENALTY (CAL.
CONST., ART. I, §§ 7, 15, 17; U.S. CONST., 5 TH , 6 TH , 8 TH , AND 14 TH
AMENDS.) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 149
A. INTRODUCTION AND SUMMARY OF ARGUMENT .............. 149
B. THE TRIAL COURT HAS A SUA SPONTE DUTY TO CORRECTLY

INSTRUCT THE JURY ON ELEMENTS OF DEATH QUALIFICATION
AND THE PROSECUTION’ S BURDEN ....................... 151
C. STANDARD OF REVIEW ................................ 151
D. THE TRIAL COURT GAVE BIASED EXPLANATIONS OF CASE

ISSUES TO PROSPECTIVE JURORS DURING VOIR DIRE BY
PRESENTING MITIGATING FACTORS SOLELY IN TERMS OF
MATTERS THAT MIGHT MITIGATE THE SEVERITY OF THE
OFFENSE OR THAT MIGHT MITIGATE PUNISHMENT, BUT
ENTIRELY OMITTED A DISCUSSION OF FACTOR ( K) MITIGATION . 152
E. THE TRIAL COURT IMPROPERLY PLACED THE BURDEN ON THE

JURY TO DETERMINE WHICH GUILT PHASE INSTRUCTIONS
APPLY AT THE PENALTY PHASE, AND THEREBY LEFT THE JURY
TO CONSIDER INSTRUCTIONS THAT ERRONEOUSLY INFORMED
THE ANALYSIS OF MITIGATION EVIDENCE .................. 156
-viii-
F. THE TRIAL COURT’ S SUPPLEMENTAL INSTRUCTION TO THE JURY
DURING TRIAL DEFENSE COUNSEL’ S CLOSING SUMMATION
IMPROPERLY PRECLUDED THE JURY FROM GIVING FULL EFFECT
TO THE GOOD CHARACTER EVIDENCE PRESENTED BY
APPELLANT IN MITIGATION ............................. 159
G. REVERSAL OF THE DEATH VERDICT IS WARRANTED BECAUSE IT

IS REASONABLY LIKELY THAT THE JURY APPLIED THE
INSTRUCTIONS GIVEN TO IT IN A WAY THAT PREVENTED FULL
AND FAIR CONSIDERATION OF CONSTITUTIONALLY RELEVANT
MITIGATION EVIDENCE - I.E., APPELLANT’ S CHARACTER
EVIDENCE .......................................... 161
XV. THE TRIAL COURT’S DENIAL OF APPELLANT’S TIMELY

REQUEST FOR ALLOCUTION VIOLATED APPELLANT’S
FEDERAL CONSTITUTIONAL RIGHT TO DUE PROCESS (U.S.
CONST., 5 TH , 8 TH & 14 TH AMENDS.), THEREBY REQUIRING
REVERSAL OF THE DEATH VERDICT AND SENTENCE . . . . . . 165
XVI. THE DEATH VERDICT MUST BE SET ASIDE ON THE

GROUND THAT THE TRIAL COURT ERRED IN DENYING
THE AUTOMATIC MOTION TO MODIFY THE DEATH
VERDICT BECAUSE THE TRIAL COURT FAILED TO
DISCHARGE ITS DUTY TO INDEPENDENTLY REWEIGH THE
AGGRAVATING AND MITIGATING EVIDENCE AND TO
INDEPENDENTLY DETERMINE WHETHER IMPOSITION OF
THE DEATH PENALTY IS PROPER, THEREBY VIOLATING
PENAL CODE SECTION 190.4, SUBDIVISION (E), AND
APPELLANT’S STATE AND FEDERAL CONSTITUTIONAL
RIGHTS TO DUE PROCESS, TO PRESENT A DEFENSE, TO A
PENALTY DETERMINATION BASED ON ALL AVAILABLE
MITIGATING EVIDENCE, AND A RELIABLE
DETERMINATION OF PENALTY (CAL. CONST., ART. I, §§ 7,
15, 17; U.S. CONST., 5 TH , 8 TH , AND 14 TH AMENDS.) . . . . . . . . . . . . 171
B. STANDARD OF REVIEW ................................ 174
-ix-
C. THE TRIAL COURT FAILED TO CONSIDER RELEVANT MITIGATING
EVIDENCE, IT CONSIDERED INTERCASE PROPORTIONALITY IN AN
ARBITRARY, UNBALANCED MANNER AGAINST APPELLANT, AND
ITS COMMENTS REFLECT DEFERENCE TO THE JURY VERDICT
RATHER THAN THE REQUIRED INDEPENDENT PENALTY
DETERMINATION ..................................... 174
1. THE TRIAL COURT FAILED TO REWEIGH THE MITIGATING

EVIDENCE PRESENTED AT TRIAL IN FAVOR OF LIFE AND
THE COURT ERRONEOUSLY FOUND THAT, EXCEPT FOR
APPELLANT’ S AGE, THERE WERE NO MITIGATING
FACTORS ..................................... 175
2. THE TRIAL COURT CONSIDERED INTERCASE

PROPORTIONALITY IN AN ARBITRARY, UNBALANCED
MANNER AGAINST APPELLANT ..................... 179
3. THE TRIAL COURT’ S COMMENTS REFLECT DEFERENCE TO

THE JURY VERDICT RATHER THAN THE REQUIRED
INDEPENDENT PENALTY DETERMINATION ............ 181
XVII. THE DEATH VERDICT MUST BE REVERSED BECAUSE THE

FAILURE OF CALIFORNIA’S DEATH PENALTY SCHEME TO
REQUIRE WRITTEN FINDINGS AND REASONS FOR A
DEATH VERDICT, AND THE TRIAL COURT’S FAILURE TO
REQUIRE SUCH WRITTEN FINDINGS AND REASONS HERE,
PREVENTS MEANINGFUL APPELLATE REVIEW OF THE
VERDICT, THEREBY DENYING APPELLANT HIS FEDERAL
CONSTITUTIONAL RIGHTS TO DUE PROCESS AND A
RELIABLE DETERMINATION OF PENALTY (U.S. CONST.,
5 TH , 8 TH , AND 14 TH AMENDS.) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 184
XVIII. THE TRIAL COURT’S FAILURE TO CONDUCT INDIVIDUAL

SEQUESTERED DEATH QUALIFICATION VOIR DIRE, OVER
DEFENSE OBJECTION, VIOLATED APPELLANT’S STATE
AND FEDERAL CONSTITUTIONAL RIGHTS TO DUE
PROCESS, JURY TRIAL, EFFECTIVE ASSISTANCE OF
COUNSEL, TO PRESENT A DEFENSE, AND TO A RELIABLE
DETERMINATION OF PENALTY (CAL. CONST., ART. I, §§ 7,
15, 17; U.S. CONST., 5 TH , 6 TH , 8 TH & 14 TH AMENDS.),
-x-
REQUIRING REVERSAL OF BOTH THE GUILT PHASE AND
PENALTY PHASE DETERMINATIONS . . . . . . . . . . . . . . . . . . . . . 187
B. A VOIR DIRE PROCEDURE THAT DOES NOT ALLOW INDIVIDUAL

SEQUESTERED VOIR DIRE ON DEATH- QUALIFYING ISSUES
VIOLATES A CAPITAL DEFENDANT’ S CONSTITUTIONAL RIGHTS
TO DUE PROCESS, TRIAL BY AN IMPARTIAL JURY, EFFECTIVE
ASSISTANCE OF COUNSEL, AND A RELIABLE SENTENCING
DETERMINATION ..................................... 188
XIX. CALIFORNIA’S DEATH PENALTY STATUTE, AS

INTERPRETED BY THIS COURT AND APPLIED AT
APPELLANT’S TRIAL, VIOLATES THE UNITED STATES
CONSTITUTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 193
A. APPELLANT’S DEATH PENALTY IS INVALID BECAUSE PENAL

CODE SECTION 190.2 IS IMPERMISSIBLY BROAD ............. 195
B. APPELLANT’S DEATH PENALTY IS INVALID BECAUSE PENAL

CODE SECTION 190.3( A) AS APPLIED ALLOWS ARBITRARY AND
CAPRICIOUS IMPOSITION OF DEATH IN VIOLATION OF THE FIFTH,
SIXTH, EIGHTH, AND FOURTEENTH AMENDMENTS TO THE
UNITED STATES CONSTITUTION .......................... 200
C. CALIFORNIA’ S DEATH PENALTY STATUTE CONTAINS NO

SAFEGUARDS TO AVOID ARBITRARY AND CAPRICIOUS
SENTENCING AND DEPRIVES DEFENDANTS OF THE RIGHT TO A
JURY TRIAL ON EACH FACTUAL DETERMINATION PREREQUISITE
TO A SENTENCE OF DEATH; IT THEREFORE VIOLATES THE SIXTH,
EIGHTH, AND FOURTEENTH AMENDMENTS TO THE UNITED
STATES CONSTITUTION ................................ 208
1. APPELLANT’ S DEATH VERDICT WAS NOT PREMISED ON

FINDINGS BEYOND A REASONABLE DOUBT BY A
UNANIMOUS JURY THAT ONE OR MORE AGGRAVATING
FACTORS EXISTED AND THAT THESE FACTORS
OUTWEIGHED MITIGATING FACTORS; HIS
CONSTITUTIONAL RIGHT TO JURY DETERMINATION
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BEYOND A REASONABLE DOUBT OF ALL FACTS
ESSENTIAL TO THE IMPOSITION OF A DEATH PENALTY
WAS THEREBY VIOLATED ......................... 209
a. IN THE WAKE OF RING, ANY AGGRAVATING

FACTOR NECESSARY TO THE IMPOSITION OF
DEATH MUST BE FOUND TRUE BEYOND A
REASONABLE DOUBT ...................... 210
b. THE REQUIREMENTS OF JURY AGREEMENT AND

UNANIMITY .............................. 221
2. THE DUE PROCESS AND THE CRUEL AND

UNUSUAL PUNISHMENT CLAUSES OF THE STATE
AND FEDERAL CONSTITUTION REQUIRE THAT THE
JURY IN A CAPITAL CASE BE INSTRUCTED THAT
THEY MAY IMPOSE A SENTENCE OF DEATH ONLY
IF THEY ARE PERSUADED BEYOND A
REASONABLE DOUBT THAT THE AGGRAVATING
FACTORS OUTWEIGH THE MITIGATING FACTORS
AND THAT DEATH IS THE APPROPRIATE PENALTY ...... 227
a. FACTUAL DETERMINATIONS ................. 227
b. IMPOSITION OF LIFE OR DEATH ............... 228
3. EVEN IF PROOF BEYOND A REASONABLE DOUBT WERE

NOT THE CONSTITUTIONALLY REQUIRED BURDEN OF
PERSUASION FOR FINDING (1) THAT AN AGGRAVATING
FACTOR EXISTS, (2) THAT THE AGGRAVATING FACTORS
OUTWEIGH THE MITIGATING FACTORS, AND (3) THAT
DEATH IS THE APPROPRIATE SENTENCE, PROOF BY A
PREPONDERANCE OF THE EVIDENCE WOULD BE
CONSTITUTIONALLY COMPELLED AS TO EACH SUCH
FINDING ...................................... 232
4. SOME BURDEN OF PROOF IS REQUIRED IN ORDER TO

ESTABLISH A TIE- BREAKING RULE AND ENSURE EVEN-
HANDEDNESS .................................. 234
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5. EVEN IF THERE COULD CONSTITUTIONALLY BE NO
BURDEN OF PROOF, THE TRIAL COURT ERRED IN FAILING
TO INSTRUCT THE JURY TO THAT EFFECT ............. 235
6. CALIFORNIA LAW VIOLATES THE SIXTH, EIGHTH AND

FOURTEENTH AMENDMENTS TO THE UNITED STATES
CONSTITUTION BY FAILING TO REQUIRE THAT THE JURY
BASE ANY DEATH SENTENCE ON WRITTEN FINDINGS
REGARDING AGGRAVATING FACTORS ............... 236
7. CALIFORNIA’ S DEATH PENALTY STATUTE AS

INTERPRETED BY THE CALIFORNIA SUPREME COURT
FORBIDS INTER- CASE PROPORTIONALITY REVIEW,
THEREBY GUARANTEEING ARBITRARY,
DISCRIMINATORY, OR DISPROPORTIONATE IMPOSITIONS
OF THE DEATH PENALTY ......................... 241
8. THE PROSECUTION MAY NOT RELY IN THE PENALTY

PHASE ON UNADJUDICATED CRIMINAL ACTIVITY;
FURTHER, EVEN IF IT WERE CONSTITUTIONALLY
PERMISSIBLE FOR THE PROSECUTOR TO DO SO, SUCH
ALLEGED CRIMINAL ACTIVITY COULD NOT
CONSTITUTIONALLY SERVE AS A FACTOR IN
AGGRAVATION UNLESS FOUND TO BE TRUE BEYOND A
REASONABLE DOUBT BY A UNANIMOUS JURY ......... 246
9. THE USE OF RESTRICTIVE ADJECTIVES IN THE LIST OF

POTENTIAL MITIGATING FACTORS IMPERMISSIBLY
ACTED AS BARRIERS TO CONSIDERATION OF MITIGATION
BY APPELLANT’ S JURY ........................... 247
10. THE FAILURE TO INSTRUCT THAT STATUTORY

MITIGATING FACTORS WERE RELEVANT SOLELY AS
POTENTIAL MITIGATORS PRECLUDED A FAIR, RELIABLE,
AND EVENHANDED ADMINISTRATION OF THE CAPITAL
SANCTION .................................... 248
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D. THE CALIFORNIA SENTENCING SCHEME VIOLATES THE EQUAL
PROTECTION CLAUSE OF THE FEDERAL CONSTITUTION BY
DENYING PROCEDURAL SAFEGUARDS TO CAPITAL DEFENDANTS
WHICH ARE AFFORDED TO NON- CAPITAL DEFENDANTS ........ 250
E. CALIFORNIA’ S USE OF THE DEATH PENALTY AS A REGULAR

FORM OF PUNISHMENT FALLS SHORT OF INTERNATIONAL
NORMS OF HUMANITY AND DECENCY AND VIOLATES THE
EIGHTH AND FOURTEENTH AMENDMENTS; IMPOSITION OF THE
DEATH PENALTY NOW VIOLATES THE EIGHTH AND FOURTEENTH
AMENDMENTS TO THE UNITED STATES CONSTITUTION ........ 260
XX. THE CUMULATIVE EFFECT OF THE ERRORS IN THIS CASE

REQUIRES REVERSAL OF APPELLANT’S DEATH SENTENCE 265
CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 267
CERTIFICATE OF COMPLIANCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 267
-xiv-
TABLE OF AUTHORITIES
Page(s)
FEDERAL CASES
Addington v. Texas (1979)

441 U.S. 418 ............................................................................................. 228
Apprendi v. New Jersey (2000)

530 U.S. 466 ..................................................................................... 185, 209
Arizona v. Fulminante (1991)

499 U.S. 279 ....................................................................................... 95, 148
Ashe v. North Carolina (4th Cir. 1978)

586 F.2d 334 6 .......................................................................................... 167
Atkins v. Virginia (2002)

122 S.Ct. 2248 ........................................................................... 243, 262-263
Attridge v. Cencorp. (2nd Cir. 1987)

836 F.2d 113 ............................................................................................. 127
Barclay v. Florida (1976)

463 U.S. 939 ............................................................................................. 241
Beck v. Alabama (1980)

447 U.S. 625 ................................................. 43, 63-64, 69, 72, 91, 231, 257
Boardman v. Estelle (9th Cir. 1992)

957 F.2d 1523 ................................................................................... 167-168
Bollenbach v. United States (1946)

326 U.S. 607 ............................................................................................... 85
Boyde v. California (1990)

494 U.S. 370 ............................................................................. 114, 151, 164
Braxton v. United States (1991)

500 U.S. 344 ............................................................................................... 59
-xv-
Brown v. Louisiana (1980)
447 U.S. 323 ............................................................................................. 222
Bullington v. Missouri (1981)

451 U.S. 430 ............................................................................................. 225
Burger v. Kemp (1987)

483 U.S. 76 ................................................................................................. 43
Bush v. Gore (2000)

531 U.S. 98 ............................................................................................... 258
Cage v. Louisiana (1990)

498 U.S. 39 ............................................................................................... 110
California v. Ramos (1983)

463 U.S. 992 ..................................................................................... 191, 257
California v. Velasquez (1980)

448 U.S. 903 ............................................................................................... 54
Campbell v. Wood (9th Cir. 1994)

18 F.3d 662 ............................................................................................... 119
Carella v. California (1989)

491 U.S. 263 ............................................................................................... 85
Carter v. Bell (6th Cir. 2000)

218 F.3d 581 ............................................................................................. 138
Carter v. Kentucky (1981)

450 U.S. 288 ............................................................................................... 85
Catches v. United States (8th Cir. 1978)

582 F.2d 453 ............................................................................................... 93
Chapman v. California (1967)

386 U.S. 18 ............................................................ 79, 86, 96, 122, 124, 132,
148, 169
-xvi-
Charfauros v. Board of Elections (9th Cir. 2001)
249 F.3d 941 ............................................................................................. 258
Coker v. Georgia (1977)

433 U.S. 584 ..................................................................................... 243, 254
Cooper v. Oklahoma (1996)

517 U.S. 348 ............................................................................................. 136
Cooper v. Sowders (6th Cir. 1988)

837 F.2d 284 ............................................................................................. 131
Donnelly v. DeChristoforo (1974)

416 U.S. 637 ....................................................................................... 43, 132
Drope v. Missouri (1975)

420 U.S. 162 ............................................................................................. 136
Duncan v. Louisiana (1968)

391 U.S. 145 ............................................................................................. 128
Dunn v. United States (1932)

284 U.S. 390 ............................................................................................. 128
Eddings v. Oklahoma (1982)

455 U.S. 104 ............................................................................. 150, 235, 250
Enmund v. Florida (1982)

458 U.S. 782 ..................................................................................... 243, 255
Estelle v. McGuire (1991)

502 U.S. 62 ......................................................................................... 86, 114
Ford v. Wainwright (1986)

477 U.S. 399 ............................................................................................. 264
Furman v. Georgia (1972)

408 U.S. 238 ..................................................................... 195, 200, 245, 262
Gardner v. Florida (1977)

430 U.S. 340 ............................................................................. 191, 228, 256
-xvii-
Gerlaugh v. Stewart (9th Cir. 1997)
129 F.3d 1027 ........................................................................................... 130
Gilmore v. Taylor (1993)

508 U.S. 333 ............................................................................................... 43
Godfrey v. Georgia (1980)

446 U.S. 420 ..................................................................................... 195, 207
Gray v. Mississippi (1987)

481 U.S. 648 ............................................................................................. 189
Green v. United States (1961)

365 U.S. 301 ..................................................................................... 167, 170
Gregg v. Georgia (1976)

428 U.S. 153 ..................................................................................... 242-250
Griffin v. United States (1991)

502 U.S. 46 ....................................................................................... 222, 233
Harmelin v. Michigan (1991)

501 U.S. 957 ..................................................................... 185, 223, 238, 257
Harris v. McAdory (7th Cir. 2003)

334 F.3d 665 ............................................................................................. 138
Herrera v. Collins (1993)

506 U.S. 390 ............................................................................................. 185
Hill v. United States (1962)

368 U.S. 424 ..................................................................................... 166, 168
Hilton v. Guyot (1895)

159 U.S. 113 ..................................................................................... 263-262
Hitchcock v. Dugger (1987)

481 U.S. 393 ............................................................................................. 176
Honkies v. Reeves (1998)

524 U.S. 88 ................................................................................................. 69
-xviii-
Hopper v. Evans (1982)
456 U.S. 605 ............................................................................................... 63
Illinois v. Allen (1970)

397 U.S. 337 ..................................................................................... 119-120
Jackson v. Fogg (2d Cir. 1978)

589 F.2d 108 ............................................................................................... 47
Jackson v. Virginia (1979)

443 U.S. 307 ................................................................. 42-43, 102, 110, 116
Johnson v. Mississippi (1988)

486 U.S. 578 ............................................................................. 223, 246, 248
Jones v. Thigpen (5th Cir. 1986)

788 F.2d 1101 ........................................................................................... 176
Jurek v Texas (1976)

428 U.S. 262 ............................................................................................. 162
Keeble v. United States (1973)

412 U.S. 20 ........................................................................................... 72, 91
Kinsella v. United States (1960)

361 U.S. 234 ............................................................................................. 256
Kyles v. Whitley (1995)

514 U.S. 419 ............................................................................................... 43
Larson v. Tansy (10th Cir. 1990)

911 F.2d 392 ............................................................................................. 123
Lawson v. Borg (9th Cir. 1995)

60 F.3d 608 ............................................................................................... 164
Lewis v. United States (1892)

146 U.S. 370 ............................................................................................. 120
Lincoln v. Sunn (9th Cir. 1987)

807 F.2d 805 ............................................................................................. 132
-xix-
Lockett v. Ohio (1978)
438 U.S. 586 ..................................................................... 150, 153, 247, 256
Lorraine v. Coyle (6th Cir. 2002)

291 F.3d 416 ............................................................................................. 138
Manson v. Brathwaite (1977)

432 U.S. 98 ................................................................................................. 47
Martin v. United States (10th Cir. 1962)

309 F.2d 81 ............................................................................................... 169
Matthews v. Eldridge (1976)

424 U.S. 319 ............................................................................................. 229
Mattox v. United States (1895)

156 U.S. 237 ............................................................................................. 144
Maynard v. Cartwright (1988)

486 U.S. 356 ............................................................................................. 207
McCleskey v. Kemp (1987)

481 U.S. 279 ..................................................................................... 254-255
McDonald v. Pless (1915)

238 U.S. 264 ............................................................................................. 127
McGautha v. California (1971)

402 U.S. 183 ............................................................................................. 166
Medina v. California (1992)

505 U.S. 437 ............................................................................................. 136
Mikes v. Borg (9th Cir. 1991)

947 F.2d 353 ............................................................................................. 102
Mills v. Maryland (1988)

486 U.S. 367 ............................................................. 186, 235, 238, 247, 259
Monge v. California (1998)

524 U.S. 721 .............................................. 185, 219-223, 224, 231-232, 257
-xx-
Moore v. Parke (7th Cir. 1998)
148 F.3d 705 ............................................................................................. 102
Morgan v. Illinois (1992)

504 U.S. 719 ...................................................................... 188-189, 191-192
Murray's Lessee v. Hoboken Land and Improvement Co. (1855)

59 U.S. (18 How.) 272 ...................................................................... 222-223
Myers v. Ylst (9th Cir. 1990)

897 F.2d 417 ..................................................................................... 238, 260
Pate v. Robinson (1966)

383 U.S. 375 ............................................................................................. 136
Penry v. Lynaugh (1989)

492 U.S. 302 ..................................................................................... 138, 150
Perez-Lastor v. Immigration and Naturalization Service

(9th Cir. 2000) 208 F.3d 773 ...................................................................... 76
Phillips v. Woodford (2001)

267 F.3d 966 ..................................................................................... 130, 265
Pointer v. Texas (1965)

380 U.S. 400 ............................................................................................. 120
Presnell v. Georgia (1978)

439 U.S. 14 ............................................................................................... 228
Proffitt v. Florida (1976)

428 U.S. 242 ............................................................................. 235, 241, 243
Pulley v. Harris (1984)

465 U.S. 37 ....................................................................................... 199, 241
Reagan v. United States (1895)

157 U.S. 301 ............................................................................................... 95
Reid v. Covert (1957)

354 U.S. 1 ................................................................................................. 256
-xxi-
Richardson v. United States (1999)
526 U.S. 813 ............................................................................................. 226
Riggins v. Nevada (1992)

504 U.S. 127 ............................................................................................. 136
Ring v. Arizona (2002)

536 U.S. 584 ............................................................................................. 185
Ohio v. Roberts (1980)

448 U.S. 56 ............................................................................................... 145
Rosales-Lopez v. United States (1981)

451 U.S. 182 ..................................................................................... 189, 192
Rose v. Clark (1986)

478 U.S. 570 ............................................................................................... 86
Rushen v. Spain (1983)

464 U.S. 114 ............................................................................................. 122
Sabariego v. Maverick (1888)

124 U.S. 261 ............................................................................................. 262
Sandstrom v. Montana (1979)

442 U.S. 510 ............................................................................................. 110
Schad v. Arizona (1991)

501 U.S. 624 ............................................................................................... 69
Sibron v. New York (1968)

392 U.S. 40 ................................................................................................. 87
Skinner v. Oklahoma (1942)

316 U.S. 535 ............................................................................................. 251
Skipper v. South Carolina (1986)

476 U.S. 1 ................................................................................................. 150
Smith v. Mitchell (6th Cir. 2003)

348 F.3d 177 ............................................................................................. 138
-xxii-
Speiser v. Randall (1958)
357 U.S. 513 ............................................................................................. 228
Spivey v Zant (5th Cir. 1981)

661 F. 2d 464 ............................................................................................ 162
Stanford v. Kentucky (1989)

492 U.S. 361 ............................................................................................. 261
Stantosky v. Kramer (1982)

455 U.S. 743 ..................................................................................... 229-231
Strickland v. Washington (1984)

466 U.S. 668 ............................................................................................. 225
Stringer v. Black (1992)

503 U.S. 222 ............................................................................................. 249
Sullivan v. Louisiana (1993)

508 U.S. 275 ......................................................................................... 96-97
Summit v. Blackburn (5th Cir. 1986)

795 F.2d 1237 ........................................................................................... 102
Taylor v. Kentucky (1978)

436 U.S. 478 ..................................................................................... 130, 265
Thompson v. City of Louisville (1960)

362 U.S. 199 ............................................................................................... 43
Thompson v. Oklahoma (1988)

487 U.S. 815 ..................................................................................... 243, 261
Townsend v. Sain (1963)

372 U.S. 293 ............................................................................................. 237
Tuilaepa v. California (1994)

512 U.S. 967 ............................................................................. 186, 201, 250
Turner v. Murray (1986)

476 U.S. 28 ....................................................................... 189, 191-192, 257
-xxiii-
U.S. ex. rel. Negron v. New York (2nd Cir. 1970)
434 F.2d 386 ............................................................................................... 75
United States v. Beckett (3d Cir. 2000)

208 F.3d 140 ............................................................................................ 169
United States v. Behrens (1963)

375 U.S. 162 ............................................................................................. 167
United States v. Bernard (9th Cir. 1980)

625 F.2d 854 ............................................................................................... 49
United States v. Brown (D.C. Cir. 1972)

461 F.2d 134 ............................................................................................... 48
United States v. Brown (D.C. Cir. 1987)

823 F.2d 591 ............................................................................................. 126
United States v. Canady (2nd Cir. 1997)

126 F.3d 352 ............................................................................................. 123
United States v. Carroll (6th Cir. 1994)

26 F.3d 1380 ............................................................................................. 130
United States v. Coffey (6th Cir. 1989)

871 F.2d 39 ............................................................................................... 169
United States v. De La Paz (5th Cir. 1983)

698 F.2d 695 ............................................................................................. 169
United States v. Fleming (11th Cir. 1988)

849 F.2d 568 ............................................................................................. 169
United States v. Gagnon (1985)

470 U.S. 522 ............................................................................................. 120
United States v. Jackson (9th Cir. 1984)

726 F.2d 1466 ............................................................................................. 93
United States v. Jackson (11th Cir. 1991)

923 F.2d 1494 ........................................................................................... 167
-xxiv-
United States v. Jobson (6th Cir. 1996)
1102 F.3d 214 ............................................................................................. 85
United States v. Lewis (4th Cir. 1993)

10 F.3d 1086 ............................................................................................. 170
United States v. Li (2nd Cir. 1997)

115 F.3d 125 ............................................................................................. 169
United States v. Marques (9th Cir. 1979)

600 F.2d 742 ............................................................................................. 128
United States v. McCoy (7th Cir. 1993)

8 F.3d 495 ................................................................................................. 120
United States v. Prince (5th Cir. 1989)

868 F.2d 1379 ........................................................................................... 169
United States v. Rosales-Rodriguez (9th Cir. 2002)

289 F.3d 1106 ........................................................................................... 121
United States v. Russell (6th Cir. 1976)

532 F.2d 1063 ............................................................................................. 47
United States v. Simtob (9th Cir. 1990)

901 F.2d 799 ............................................................................................. 130
United States v. Smith (9th Cir. 1977)

563 F.2d 1361 ............................................................................................. 48
United States v. Symington (9th Cir. 1999)

195 F.3d 1080 ........................................................................................... 128
United States v. Thomas (2nd Cir. 1997)

116 F.3d 606 ............................................................................................. 127
United States v. Tsanas (2nd Cir. 1978)

572 F.2d 340 ......................................................................................... 92-93
United States v. Wade (1967)

388 U.S. 218 ............................................................................................... 47
-xxv-
United States v. Wallace (9th Cir. 1988)
848 F.2d 1464 ........................................................................................... 130
United States v. Wells (8th Cir. 2000)

223 F.3d 835 ............................................................................................... 88
Victor v. Nebraska (1994)

511 U.S. 1 ................................................................................................. 109
Wade v. United States (D.C. Cir. 1971)

441 F.2d 1046 ........................................................................................... 124
Wainwright v. Witt (1985)

469 U.S. 412 ..................................................................................... 189-190
Walton v. Arizona (1990)

497 U.S. 639 ............................................................................................. 170
White v. Illinois (1992)

502 U.S. 346 ............................................................................................... 43
In re Winship (1970)
397 U.S. 358 ...................................................... 109-110, 114, 116, 228-231
Woodson v. North Carolina (1976)

428 U.S. 280 ............................................................. 186, 191, 231, 248, 256
Yates v. Evatt (1991)

500 U.S. 391 ............................................................................................... 86
Ybarra v. Illinois (1979)

444 U.S. 85 ................................................................................................. 87
Zant v. Stephens (1983)

462 U.S. 862 ..................................................................... 191, 195, 248, 257
STATE CASES
Alford v. State (Fla. 1975)

307 So.2d 433 ........................................................................................... 244
-xxvi-
Brewer v. State (Ind. 1981)
417 N.E.2d 889 ......................................................................................... 244
Cantrell v. State (GA 1996)

469 S.E.2d 660 ............................................................................................ 92
Cantrell v. State (GA 1996)

469 S.E.2d 660 ............................................................................................ 94
Collins v. State (Ark. 1977)

548 S.W.2d 106 ......................................................................................... 244
Commonwealth v. O'Neal (1975)

327 N.E.2d 662 ......................................................................................... 251
Covarrubias v. Superior Court (1998)

60 Cal.App.4th 1168 ................................................................................. 190
Hitchcock v. State (1982)

413 So.2d 741 ........................................................................................... 176
Hovey v. Superior Court (1980)

28 Cal.3d 1 ................................................................................ 187, 190-191
Jones v. United States (D.C. 1988)

544 A.2d 1250 ....................................................................................... 92, 95
Marks v. Superior Court (2002)

27 Cal.4th 176 ................................................................................... 104-105
Norris v. State (1983)

429 So.2d 688 ........................................................................................... 176
People v. Adcox (1988)

47 Cal.3d 207 ............................................................................................ 201
People v. Aguilar (1984)

35 Cal.3d 785 ........................................................................................ 75-78
People v. Alcala (1984)

36 Cal.3d 60 .......................................................................................... 56, 59
-xxvii-
People v. Allen (1986)
42 Cal.3d 1222 .......................................................................... 213, 253-256
People v. Alvarez (1996)

14 Cal.4th 155 ............................................................................................. 77
People v. Andersen (1994)

26 Cal.App.4th 1241 ................................................................................... 80
People v. Anderson (2001)

25 Cal.4th 543 ........................................................................................... 213

70 Cal.2d 15 .......................................................................................... 55, 60

15 Cal.3d 806 .............................................................................................. 65
People v. Babbitt (1988)

45 Cal.3d 660 ............................................................................................ 159
People v Bacigalupo (1993)

6 Cal.4th 857 ............................................................................................. 196
People v. Baker (1954)

42 Cal.2d 550 .............................................................................................. 71
People v. Barton (1995)

12 Cal.4th 186 ....................................................................................... 63, 65
People v. Bean (1988)

46 Cal.3d 919 .............................................................................................. 43
People v. Berryman (1993)

6 Cal.4th 1048 ................................................................................... 174-175
People v. Bittaker (1989)

48 Cal.3d 1046 .......................................................................................... 201
People v. Blake (1884)

65 Cal. 275 .................................................................................................. 71
-xxviii-
People v. Blakeley (2000)
23 Cal.4th 82 ............................................................................................... 96
People v. Bolin (1998)

18 Cal.4th 297 ........................................................................................... 221
People v. Bonillas (1989)

48 Cal.3d 757 ............................................................................................ 183
People v. Bradford (1997)

15 Cal.4th 1229 ..................................................................................... 70, 77
People v. Breverman (1998)

19 Cal.4th 142 ............................................................................................. 63
People v. Breverman (1998)

19 Cal.4th 142 ............................................................................ 63-64, 67-68
People v. Briggs (1962)

58 Cal.2d 385 ............................................................................................ 130
People v. Brown (2003)

31 Cal.4th 518 ........................................................................................... 151
People v. Brown (1985)

40 Cal.3d 512 ............................................................................ 212-213, 216
People v. Brownell (Ill. 1980)

404 N.E.2d 181 ......................................................................................... 244
People v. Buffum (1953)

40 Cal.2d 709 ............................................................................................ 131
People v. Bull (1998)

185 Ill.2d 179 ............................................................................................ 260
People v. Burgener (2003)

29 Cal.4th 833 ................................................................................... 175, 182
People v. Burnham (1986)

176 Cal.App.3d 1134 .................................................................................. 68
-xxix-
People v. Cahill (1993)
5 Cal.4th 478 ............................................................................................... 95
People v. Caldwell (1965)

43 Cal.2d 864 ........................................................................................ 60-61
People v. Cardenas (1982)

31 Cal.3d 897 ............................................................................................ 163
People v. Carpenter (1997)

15 Cal.4th 312 ............................................................................................. 80
People v. Carter (2003)

30 Cal.4th 1166 ......................................................................................... 159
People v. Cash (2002)

28 Cal.4th 703 ............................................................................................. 68
People v. Castro (2000)

78 Cal.App.4th 1402 ................................................................. 134, 136, 140
People v. Clair (1992)

2 Cal.4th 629 ............................................................................................. 114
People v. Cleveland (2004)

32 Cal.4th 704 ........................................................................................... 166
People v. Collins (1968)

68 Cal.2d 319 ............................................................................................ 131
People v. Cooper (1991)

53 Cal.3d 771 ........................................................................................ 65, 67
People v. Cox (2003)

30 Cal.4th 916 ........................................................................................... 185
People v. Coyne (1949)

92 Cal.App.2d 413 ...................................................................................... 71
People v. Crew (2003)

31 Cal.4th 822 ........................................................................................... 109
-xxx-
People v. Cummings (1993)
4 Cal.4th 1233 ........................................................................................... 189
People v. Cunningham (2001)

25 Cal.4th 92 ............................................................................................. 183
People v. Davenport (1985)

41 Cal.3d 247 ............................................................................................ 248
People v. Davenport (1995)

11 Cal.4th 1171 ......................................................................................... 166
People v. Dillon (1984)

34 Cal.3d 441 ............................................................................................ 197
People v. Dyer (1988)

45 Cal.3d 26 .............................................................................................. 201
People v. Easley (1983)

34 Cal.3d 858 ............................................................................................ 153
People v. Edelbacher (1989)

47 Cal.3d 983 .................................................................................... 195, 248
People v. Engelman (2002)

28 Cal.4th 436 ........................................................................................... 126
People v. Fairbank (1997)

16 Cal.4th 1223 ......................................................................................... 209
People v. Farnam (2002)

28 Cal.4th 107 ........................................................................................... 212
People v. Fauber (1992)

2 Cal.4th 792 ..................................................................................... 184, 237
People v. Feagley (1975)

14 Cal.3d 338 ............................................................................................ 229
People v. Fields (1996)

13 Cal.4th 289 ............................................................................................. 91
-xxxi-
People v. Filson (1994)
22 Cal.App.4th 1841 ................................................................................... 52
People v. Fitzpatrick (1992)

2 Cal.App.4th 1285 ..................................................................................... 80
People v. Flood (1998)

18 Cal.4th 470 ............................................................................................. 86
People v. Flores (1992)

7 Cal.App.4th 1350 ..................................................................................... 82
People v. Francis (1969)

71 Cal.2d 66 ................................................................................................ 65
People v. Frausto (1982)

135 Cal.App.3d 129 .................................................................................... 82
People v. Gamez (1991)

235 Cal.App.3d 957 .................................................................................... 82
People v. Geiger (1984)

35 Cal.3d 510 ........................................................................................ 66, 72
People v. Godwin (1995)

31 Cal.App.4th 1112 ................................................................................... 80
People v. Graham (1969)

71 Cal.2d 30 ................................................................................................ 72
People v. Griggs (1941)

17 Cal.2d 621 .............................................................................................. 71
People v. Gzikowski (1982)

32 Cal.3d 580 ............................................................................................ 103
People v. Hall (1989)

208 Cal.App.3d 34 ...................................................................................... 80
People v. Hamilton (1989)

48 Cal.3d 1142 .......................................................................................... 248
-xxxii-
People v. Hardy (1992)
2 Cal.4th 86 ............................................................................................... 201
People v. Harris (1994)

9 Cal.4th 407 ............................................................................................... 86
People v. Hawthorne (1992)

4 Cal.4th 43 ....................................................................................... 212, 239
People v. Hayes (1990)

52 Cal.3d 577 ............................................................................ 227, 234, 239
People v. Heard (2003)

31 Cal.4th 946 ........................................................................................... 109
People v. Helliger (NY 1998)

691 NY.S.2d 858 ......................................................................................... 94
People v. Hernandez (2003)

30 Cal.4th 835 ........................................................................................... 215
People v. Hernandez (1988)

46 Cal.3d 194 .............................................................................................. 86
People v. Hill (1898)

123 Cal. 47 .................................................................................................. 71
People v. Hill (1998)

17 Cal.4th 800 ................................................................................... 130, 265
People v. Hillhouse (2002)

27 Cal.4th 469 ........................................................................................... 197
People v. Hogan (1982)

31 Cal.3d 815 ............................................................................................ 122
People v. Holloway (1990)

50 Cal.3d 1098 .......................................................................................... 103
People v. Hovey (1988)

44 Cal.3d 543 .............................................................................................. 56
-xxxiii-
People v. Howard (1987)
190 Cal.App.3d 41 .................................................................................... 115
People v. Howard (1992)

1 Cal.4th 1132 ............................................................................................. 77
People v. Hughes (2002)

27 Cal.4th 287 ..................................................................................... 67, 106
People v. Jackson (1996)

13 Cal.4th 1164 ......................................................................................... 119
People v. Jeter (1964)

60 Cal.2d 671 ........................................................................................ 69, 89
People v. Johnson (1980)

26 Cal.3d 557 .............................................................................................. 41
People v. Kaurish (1990)

52 Cal.3d 648 ............................................................................................ 204
People v. Kelly (1992)

1 Cal.4th 495 1 .......................................................................................... 115
People v. King (1978)

22 Cal.3d 12 ................................................................................................ 68
People v. Kobrin (1995)

11 Cal.4th 416 ............................................................................................. 86
People v. Koontz (2002)

27 Cal.4th 1041 ......................................................................................... 174
People v. Lee (1987)

43 Cal.3d 666 ........................................................................................ 86, 88
People v. (Lester) Ochoa (1998)

19 Cal.4th 353 .................................................................. 153, 155, 158, 160,
178
-xxxiv-
People v. Lewis (2001)
25 Cal.4th 610 ............................................................................................. 68
People v. Love (1960)

53 Cal.2d 843 .................................................................................... 179, 181
People v. Lucero (1988)

44 Cal.3d 1006 .......................................................................................... 248
People v. Macedo (1989)

213 Cal.App.3d 554 .................................................................................... 86
People v. Marshall (1990)

50 Cal.3d 907 ............................................................................................ 244
People v. Martin (1986)

42 Cal.3d 437 .................................................................................... 184, 238
People v. Martinez (1995)

11 Cal.4th 434 ............................................................................................. 52
People v. Matlock (1959)

51 Cal.2d 682 .............................................................................................. 44
People v. McDonald (1984)

37 Cal.3d 35 ................................................................................................ 48
People v. Medina (1995)

11 Cal.4th 694 ) - ...................................................................................... 224
People v. Melton (1988)

44 Cal.3d 713 ............................................................................................ 248
People v. Mickey (1992)

54 Cal.3d 612 ............................................................................................ 153
People v. Miranda (1994)

21 Cal.App.4th 1464 ................................................................................... 66
People v. Moore (1954)

43 Cal.2d 517 .............................................................................................. 95
-xxxv-
People v. Morales (2001)
25 Cal.4th 34 ............................................................................................... 49
People v. Morales (1989)

48 Cal.3d 527 ............................................................................................ 197
People v. Morris (1988)

46 Cal.3d 1 .................................................................................................. 48
People v. Nicolaus (1991)

54 Cal.3d 551 ............................................................................................ 201
People v. Ogunmola (1985)

39 Cal.3d 120 ............................................................................................ 164
People v. Olivas (1976)

17 Cal.3d 236 ............................................................................................ 251
People v. Osband (1996)

13 Cal.4th 622 ........................................................................................... 176
People v. Pearch (1991)

229 Cal.App.3d 1282 .................................................................................. 52
People v. Pennington (1967)

66 Cal.2d 508 ............................................................................................ 136
People v. Perez (1981)

114 Cal.App.3d 470 .................................................................................... 82
People v. Phillips (1985)

41 Cal.3d 29 .............................................................................................. 205
People v. Pinholster (1992)

1 Cal.4th 865 ............................................................................................. 103
People v. Pride (1992)

3 Cal.4th 195 ............................................................................................... 55
People v. Prieto (2003)

30 Cal.4th 226 ........................................................................................... 213
-xxxvi-
People v. Raley (1992)
2 Cal.4th 870 ............................................................................................. 224
People v. Ramkeesoon (1985)

39 Cal.3d 346 .............................................................................................. 71
People v. Ratliff (1986)

41 Cal.3d 675 .............................................................................................. 59
People v. Redmond (1969)

71 Cal.2d 745 .............................................................................................. 42
People v. Reyes (1974)

12 Cal.3d 486 ........................................................................................ 42, 50
People v. Roberts (1992)

2 Cal.4th 271 ............................................................................................... 82
People v. Rodrigues (1994)

8 Cal.4th 1060 ........................................................................................... 175
People v. Rodriguez (1986)

42 Cal.3d 730 .................................................................................... 175, 255
People v. Rodriguez (1999)

20 Cal.4th 1 ................................................................................................. 41
People v. Roehler (1985)

167 Cal.App.3d 353 .................................................................................... 80
People v. Samuel (1981)

29 Cal.3d 489 .............................................................................................. 41
People v. Sanchez (1950)

35 Cal.2d 522 .............................................................................................. 71
People v. Sanders (1990)

51 Cal.3d 471 ............................................................................................ 107
People v. Sandoval (1992)

4 Cal.4th 155 ............................................................................................. 109
-xxxvii-
People v. Santamaria (1994)
8 Cal.4th 903 ............................................................................................... 68
People v. Scott (1997)

15 Cal.4th 1188 ........................................................................................... 77
People v. Sengpadychith (2001)

26 Cal.4th 316 ........................................................................................... 169
People v. (Sergio) Ochoa (2001)

26 Cal.4th 398 ........................................................................................... 121
People v. Snow (2003)

30 Cal.4th 43 ............................................................................................. 213
People v. Stanley (1995)

10 Cal.4th 764 ..................................................................................... 41, 199
People v. Steele (2002)

27 Cal.4th 1230 ......................................................................................... 182
People v. Superior Court (Engert)

(1982) 31 Cal.3d 797 ................................................................................ 196
People v. Taylor (1990)

52 Cal.3d 719 ............................................................................................ 221
People v. Thomas (1945)

25 Cal.2d 880 ........................................................................................ 60, 73
People v. Thomas (1992)

2 Cal.4th 489 ............................................................................................... 55
People v. Thompkins (1987)

195 Cal.App.3d 244 .................................................................................... 85
People v. Toro (1989)

47 Cal.3d 966 .............................................................................................. 66
People v. Trevino (1985)

39 Cal.3d 667 .............................................................................................. 50
-xxxviii-
People v. Tubby (1949)
34 Cal.2d 7 .................................................................................................. 60
People v. Turner (1990)

50 Cal.3d 668 .............................................................................................. 63
People v. Valdez (2004)

32 Cal.4th 73 ............................................................................................... 65
People v. Velasquez (1980)

26 Cal.3d 425 .............................................................................................. 54
People v. Vincent (1892)

95 Cal. 425 .................................................................................................. 71
People v. Von Villas (1992)

11 Cal.App.4th 17 ..................................................................................... 131
People v. Wagner (1975)

13 Cal.3d 612 ............................................................................................ 131
People v. Waidla (2000)

22 Cal.4th 690 ........................................................................................... 191
People v. Walker (1988)

47 Cal.3d 605 ............................................................................................ 201
People v. Watson (1956)

46 Cal.2d 818 ...................................................................................... 96, 115
People v. Weaver (2001)

26 Cal.4th 876 ........................................................................................... 177
People v. Wharton (1991)

53 Cal.3d 522 .............................................................................................. 55
People v. Wheeler (1978)

22 Cal.3d 258 ............................................................................................ 224
People v. White (1986)

185 Cal.3d 822 ............................................................................................ 68
-xxxix-
People v. Wickersham (1982)
32 Cal.3d 307 .................................................................................. 67, 72, 80
People v. Williams (1971)

22 Cal.App.3d 34 ...................................................................................... 131
People v. Wolff (1964)

61 Cal.2d 795 .............................................................................................. 60
People v. Woodard (1979)

23 Cal.3d 329 .............................................................................................. 52
People v. Woods (1991)

226 Cal.App.3d 1037 .................................................................................. 59
People v. Wright (1990)

52 Cal.3d 367 ............................................................................................ 103
People v. Wright (1990)

52 Cal.3d 367 ............................................................................................ 121
In re Podesto (1976)
15 Cal.3d 921 ............................................................................................ 184
State v. Bobo (Tenn. 1987)

727 S.W.2d 945 ......................................................................................... 246
State v. Dixon (Fla. 1973)

283 So.2d 1 ............................................................................................... 244
State v. Ferreira (HI 1990)

791 P.2d 407 ............................................................................................... 92
State v. LeBlanc (AZ 1996)

924 P.2d 441 ............................................................................................... 93
State v. Pierre (Utah 1977)

572 P.2d 1338 ........................................................................................... 244
State v. Pierre (Utah 1977)

572 P.2d 1338 ........................................................................................... 211
-xl-
State v. Richmond (Ariz. 1976)
560 P.2d 41 ............................................................................................... 244
State v. Simants (Neb. 1977)

250 N.W.2d 881 ........................................................................................ 211
State v. Simants (Neb. 1977)

250 N.W.2d 881 ........................................................................................ 244
State v. Stewart (Neb. 1977)

250 N.W.2d 849 ........................................................................................ 211
State v. White (Del. 1978)

395 A.2d 1082 ........................................................................................... 239
State v. Williams (1988)

113 N.J. 393, 550 A.2d 1172 .................................................................... 189
In re Sturm (1974)
11 Cal.3d 258 ............................................................................................ 237
Taylor v. Superior Court (1970)

3 Cal.3d 578 ................................................................................................ 44
Westbrook v. Milahy (1970)

2 Cal.3d 765 .............................................................................................. 251
Williams v. Davis (1946)

27 Cal.2d 746 .................................................................................... 101-102
In re Wing Y. (1977)
67 Cal.App.3d 69 ........................................................................................ 87
STATUTES
21 U.S.C. § 848 ...................................................................................... 223, 226
Ala. Code § 13A-5-46(f) (1982) ..................................................................... 239
Ala. Code § 47(d) (1982) ................................................................................ 239
-xli-
Ariz. Rev. Stat. Ann. § 13-703(d) (1989) ....................................... 211, 216, 239
Ariz. Rev. Stat. Ann. § 13-1105(c) ................................................................. 214
Ark. Code Ann. § 5-4-603(a) (1987) .............................................................. 239
Cal. Code Civil Proc., § 223 ........................................................................... 191
Cal. Code Regulations, title 17, § 54000 ........................................................ 136
Cal. Evid. Code, § 402 .................................................................................... 141
Cal. Evid. Code, § 411 ...................................................................................... 47
Cal. Evid. Code, § 520 .................................................................................... 233
Cal. Evid. Code, § 1240 .................................................................................. 142
Cal. Pen. Code, § 190.3 .................................................................................. 216
Cal. Pen. Code, § 187, subd. (a) ......................................................................... 1
Cal. Pen. Code, § 189 ................................................................................. 1, 197
Cal. Pen. Code, § 190.2 .................................................................................. 195
Cal. Pen. Code, § 190.3 .......................................................................... 200, 240
Cal. Pen. Code, § 997, subvd. (b) ................................................................... 121
Cal. Welf. & Inst. Code, § 4512 ..................................................................... 135
Colo. Rev. Stat. Ann. § 16-11-103(d) (West 1992) ........................................ 211
Conn. Gen. Stat. Ann. § 53a-46a(e) ............................................................... 239
Del. Code Ann. tit. 11, § 4209(d)(1) .............................................................. 211
Fla. Stat. Ann. § 921.141(3) (West 1985) ...................................................... 239
Ga. Code Ann. § 1710-30(c) (Harrison 1990) ........................................ 211, 239
-xlii-
Idaho Code § 19-2515(g) (1993) .................................................................... 211
Ill. Ann. Stat. ch. 38, para. 9-1(f) (Smith-Hurd 1992) .................................... 211
Ind. Code Ann. §§ 35-50-2-9(a) ..................................................................... 211
Ky. Rev. Stat. Ann. § 532.025(3) (Michie 1992) ................................... 211, 239
La. Code Crim. Proc. Ann. art. 905.3 (West 1984) ........................................ 211
La. Code Crim. Proc. Ann. art. 905.7 (West 1993) ........................................ 239
Md. Ann. Code art. 27, §§ 413(d) .................................................................. 211
Md. Ann. Code art. 27, §§ 413(I) (1992) ....................................................... 239
Miss. Code Ann. § 99-19-103 ................................................................ 211, 239
Mont. Code Ann. § 46-18-306 (1993) ............................................................ 239
Neb. Rev. Stat. § 29-2522 (1989) ................................................................... 239
Nev. Rev. Stat. Ann. § 175.554(3) (Michie 1992) ......................................... 239
N.H. Rev. Stat. Ann. § 630:5(IV) (1992) ....................................................... 239
Okla. Stat. Ann. tit. 21, § 701.11 (West 1993) ............................................... 239
S.C. Code Ann. § 16-3-20(c) (Law. Co-op. 1992) ......................................... 239
S.D. Codified Laws Ann. § 23A-27A-5 (1988) ............................................. 239
Tenn. Code Ann. § 39-13-204(g) (1993) ........................................................ 239
Tex. Crim. Proc. Code Ann. § 37.071(c) (West 1993) .................................. 239
Va. Code Ann. § 19.2-264.4(D) (Michie 1990) ............................................. 239
Wash. Rev. Code Ann. § 10.95.060(4) ........................................................... 211
Wyo. Stat. § 6-2-102(e) .................................................................................. 211
-xliii-
MISCELLANEOUS
1 Kent’s Commentaries 1 ............................................................................... 261
American Psychiatric Association, Diagnostic and Statistical

Manual of Mental Disorders (4th ed. Text Revision 2000) .............. 137, 139
CALJIC No. 1.00 .............................................................................................. 49
CALJIC No. 1.03 .............................................................................................. 49
CALJIC No. 2.00 ............................................................................................ 109
CALJIC No. 2.01 ............................................................................................ 109
CALJIC No. 2.20 ............................................................................................ 157
CALJIC No. 2.61 ............................................................................ 112, 113, 114
CALJIC No. 2.90 .................................................................................... 108, 115
CALJIC No. 8.80.1 ......................................................................................... 101
CALJIC No. 8.83 .................................................................................... 109, 115
CALJIC No. 8.83.1 ......................................................................................... 109
CALJIC No. 8.84.1 ......................................................................................... 158
CALJIC No., 8.88 ............................................................... 201, 212, 215, 216
CALJIC No. 17.41.1 ............................................................................... 125, 126
Cal. Const. art. I, § 7 ....................................................................... 121, 108, 188
Cal. Const., art. I, § 14 ...................................................................................... 76
Cal. Const. art. I, § 15 ..................................................................... 121, 108, 188
Cal. Const, art. I, § 16 ............................................................................. 188, 224
-xliv-
Cal. Const., art. I, § 17 .................................................................................... 108
Cal. Rules of Court, rule 4.42 ......................................................................... 253
Cal. Rules of Court, rules 4.421 ..................................................................... 258
U.S. Const., 5 th Amend. ............................................................................. passim
U.S. Const. 6 th Amend. .............................................................................. passim
U.S. Const. 8 th Amend. .............................................................................. passim
U.S. Const. 14 th Amend. ............................................................................ passim
-xlv-
No. S070686
IN THE SUPREME COURT OF CALIFORNIA
THE PEOPLE OF THE STATE OF LOS ANGELES COUNTY

CALIFORNIA, SUPERIOR COURT
Plaintiff and Respondent, Superior Court Case

No. BA102638
v.
GERARDO ROMERO,
Defendant and Appellant.
ON AUTOMATIC APPEAL
FROM A JUDGMENT AND SENTENCE OF DEATH
Superior Court of California, County of Los Angeles

The Honorable Charles E. Horan, Judge Presiding
APPELLANT’S OPENING BRIEF
INTRODUCTION
Appellant Gerardo Romero was convicted by jury in 1998 in Los Angeles
County Superior Court of the first-degree murders of Eugene Afable and Reynaldo
Hau (Pen. Code, §§ 187, subd. (a), 189).1 The jury found true the two special
1
Further undesignated statutory references are to the Penal Code,
references to rules are to the California Rules of Court, “RT” designates the
1
circumstance allegations: multiple murder (§ 190.2, subd. (a)(3)) and that the
murder of Reynaldo Hau was committed in the course of a robbery (§ 190.2, subd.
(a)(17)(A)). The jury also convicted appellant of attempted murder (§§ 664, 187)
and attempted second-degree robbery (§§ 664, 211) of Francisco Piceno, second-
degree robbery of Gabriel Hau Cruz (§ 211), and attempted second-degree robbery
of Jose Aguilar (aka “Luis”) (§§ 664, 211). The jury found that appellant
committed the attempted murder of Francisco Piceno willfully, deliberately and
with premeditation (§ 664, subd. (a)), personally inflicted great bodily injury upon
Francisco Piceno (§ 12022.7, subd. (a)), and in connection with each offense
personally used a firearm (§ 12022.5, subd. (a)). (RT 3043-3055; CT 2766-2772.)
At the penalty phase the jury returned a verdict of death. (RT 3548-3551.)
STATEMENT OF THE CASE
By information filed June 9, 1997, amended by interlineation on February
23, 1998, the District Attorney of Los Angeles County charged appellant with the
first-degree murders of Eugene Afable and Reynaldo Hau (§§ 187, subd. (a), 189;
counts 1 & 2, respectively), the attempted murder (§§ 664, 187) and attempted
second-degree robbery (§§ 664, 211) of Francisco Piceno (counts 3 & 4,
respectively), second-degree robbery of Gabriel Hau Cruz (§ 211; count 5), and
attempted second-degree robbery of Jose Aguilar (§§ 664, 211; count 6). It was
reporter’s transcript, and “CT” designates the clerk’s transcript.
2
alleged in connection with count 3 that appellant committed the attempted murder
of Francisco Piceno willfully, deliberately and with premeditation (§ 664, subd.
(a)) and personally inflicted great bodily injury upon Francisco Piceno (§ 12022.7,
subd. (a)). It also alleged in connection with each count that appellant personally
used a firearm (§ 12022.5, subd. (a)). Finally, two special circumstances were
alleged: (1) multiple murder, counts 1 and 2 (§ 190.2, subd. (a)(3)) and (2) murder
during the commission of a robbery, count 2 (§ 190.2, subd. (a)(17)(A)). (CT 247-
251; RT 1518-1519.)
On February 6, 1998, the trial court denied appellant’s previously-filed
motion to sever counts 1 and 2 on the grounds that the two offenses are of the
same class (murder) and some of the evidence is cross-admissible (i.e., same
handgun used in both offenses). (RT 1509-1510; CT 434-436.) That same day the
trial court also denied appellant’s motion for individual sequestered voir dire
during the death qualification portion of jury selection. (RT 1513; CT 325-330.)
Trial commenced on February 9, 1998, with jury selection. (RT 1532.) On
February 17, 1998, the trial and alternate jurors were impaneled and sworn. (RT
2377-2378, 2446-2447.)
On February 18, 1998, the trial court denied appellant’s section 1538.5
motion to suppress an “Emit” brand watch and .380 caliber ammunition recovered
during a search of appellant’s bedroom located in his parents’ residence at 201
3
South Columbia Place, Los Angeles. The trial court denied the motion on the
grounds that 1) appellant and his father both consented to the search and 2)
appellant was on felony probation with search conditions permitting a search of
appellant and his belongings at any time without probable cause and without
consent. (RT 2459-2470.)
On February 23, 1998, after the close of the defense guilt-phase evidence,
the prosecution’s trial exhibits (People’s Exhibits 1 through 24, inclusive) were
admitted into evidence without objection.2 (RT 2870-2876.) At the same time,
appellant moved to dismiss count 6 (robbery of Jose Aguilar; § 211) for
insufficient evidence pursuant to section 1118.1.3 (RT 2877.) The court granted
and denied the motion in part by ordering the information amended to charge the
lesser included offense of attempted robbery of Jose Aguilar (§§ 664, 211). (RT
2877-2880.)
On February 26, 1998, appellant was convicted as charged. (RT 3043-
3055; CT 2766-2772.)
2
The prosecution previously rested its case subject to admission of
trial exhibits. (RT 2785.)
3
The defense motion was deemed made at the close of the
prosecution’s case. (RT 2785.)
4
On March 2, 1998, the penalty phase of the trial commenced. (RT 3069.)
The jury began deliberating on March 4, 1998, at 2:30 p.m. and on March 6, 1998,
at 10:00 a.m. returned a verdict of death. (RT 3370, 3401, 3548-3551.)
On April 21, 1998, appellant filed a motion for new trial on the ground that
the evidence was insufficient as a matter of law to sustain the convictions and
verdict of death. (CT 2800-2803.) On May 1, 1998, the trial court denied the
motion. (RT 3560.) That same day, the court considered and denied the automatic
motion for modification of the verdict of death. (RT 3561-3567, 3583.)
On May 22, 1998, the trial court sentenced appellant as follows: (1) death
on counts 1 and 2 (first-degree murder of Eugene Afable and Reynaldo Hau; §§
187, subd. (a), 189); (2) an indeterminate term of life in state prison on count 3
(attempted murder of Francisco Piceno committed willfully, deliberately and with
premeditation; §§ 664, 187) plus 10 years for the firearm use enhancement (§
12022.5, subd. (a)) and 3 years for the great bodily injury enhancement (12022.7,
subd. (a)); (3) three years in state prison on count 4 (attempted second-degree
robbery of Francisco Piceno; §§ 664, 211) plus 10 years for the firearm use
enhancement (§ 12022.5, subd. (a)), consecutive to count 3; (4) five years in state
prison on count 5 (second-degree robbery of Gabriel Hau Cruz; § 211) plus 10
years for the firearm use enhancement (§ 12022.5, subd. (a)), consecutive to count
3 and concurrent with count 4; and, (5) three years in state prison on count 6
5
(attempted second-degree robbery of Jose Aguilar; §§ 664, 211) plus 10 years for
the firearm use enhancement (§ 12022.5, subd. (a)), consecutive to count 3 and
concurrent with counts 4 and 5. The court imposed an additional term of 10 years
on each of counts 1 and 2 for the firearm use enhancement (§ 12022.5, subd. (a)),
but stayed imposition of sentence pending execution of the death sentence. (RT
3583-3590.) A restitution fine was imposed and appellant was given custody
credit. (RT 3592-2593.)
STATEMENT OF APPEALABILITY
This appeal from a judgment of death is automatic. (Cal. Const., art. VI, §
11; § 1239, subd. (b).)
STATEMENT OF FACTS
A. GUILT PHASE – PROSECUTION’ S CASE
1. VIDEO STORE INCIDENT INVOLVING EUGENE AFABLE

(COUNT 1)
The evidence presented by the prosecution at trial consisted of the
following: On October 9, 1994 at approximately 9:00 p.m. someone entered J & L
Video Store at 2534 West Temple Street, Los Angeles, walked up behind 17-year-
old Eugene Afable (aka “Temper”), who was watching a video, and without
warning fired a single bullet from a .380 caliber handgun into the back of Afable’s
head at contact range. Afable collapsed onto the floor and died. (RT 2494-2496,
2500, 2532, 2542-2543, 2555.) The shooter fled on foot. (RT 2607.)
6
Ismael Magallanes, the store manager, was sitting at the back of the store
about four feet from Afable watching a video with him. (RT 2495, 2497.)
Magallanes heard one shot, he stood up, saw Afable fall to the ground, and “got a
glimpse” “of the person shooting.” (RT 2498.) As the shooter was turning,
Magallanes saw three-quarters of the shooter from behind the counter six to eight
feet away. (RT 2498-2500, 2520.) When interviewed that evening by police
officers, Magallanes described the shooter as Hispanic, 5'4" to 5'6" tall, clean
shaved, light complexion, and a shaved head with a 3 to 4 inch ponytail protruding
from the back of his head bound with a rubber band. (RT 2504-2505, 2515-2516.)
The following day, he identified individual #1 (appellant) from a six-pack
photographic lineup (People’s Exhibit 4) as “close” and “similar” to, but “heavier”
than, the shooter. (RT 2502-2503, 2516-2517.) At appellant’s trial, Magallanes
testified that appellant was the shooter, but immediately qualified the identification
by testifying that he was only 90% sure that appellant was the actual shooter
because he only saw him for 2 to 3 seconds and had never seen him before. (RT
2502, 2520.)
When Magallanes identified individual #1 (appellant) from the six-pack
photographic lineup the day after the shooting, he was also shown side and back-
view photographs of appellant’s head (People’s Exhibits 5B and 5C, respectively),
which revealed a shaved head with a 3 to 4 inch ponytail protruding from the back.
7
(RT 2517.) Magallanes testified on direct examination at appellant’s trial that he
recognized People’s Exhibits 5B and 5C, that the ponytail depicted in those
exhibits appears to show how the shooter wore his ponytail at the time of the
shooting, and People’s Exhibit 5A (a photograph of appellant) is “similar” to the
person that he saw running out of the store. (RT 2517.)
From the adjacent laundromat, Felix Callejas heard one shot and saw a
person run out of the J & L Video Store. The person crossed in front of Callejas
from a distance of about 21 feet, giving Callajas a side view of the person’s face as
he was running. (RT 2606-2609.) Callejas described the person as light skinned
and bald with an unwrapped ponytail protruding from the back of his head. (RT
2609.) The person ran towards Rampart Street and then out of sight. He then
heard an engine start and a vehicle drive away. (RT 2609-2610.) The following
day when Callejas was interviewed by the police, he identified individual #1
(appellant) from a six-pack photographic lineup (People’s Exhibit 4), stating that
the individual shared “some similarities with the person at the scene.” (RT 2616.)
At the same time, he was shown People’s Exhibits 5B and 5C (depicting the right
side and back views of appellant’s upper torso and head, revealing an unwrapped
ponytail protruding from the back of appellant’s head), and recognized the
“ponytail in the back of the head as being how the suspect looked.” (RT 2617.)
8
Detective John Freitas, assigned to the Los Angeles Police Department’s
Rampart Division, arrived at J & L Video Store at approximately 1:00 a.m.
(October 10 th ) after interviewing witness Magallanes and Callejas at the Rampart
station. (RT 2536-2537, 2540-2541.) Afable was lying on his back, face-up in a
pool of blood, wearing a black jersey with silver lettering and numbers, which was
consistent with jerseys worn by Temple Street gang members. (RT 2538-2539,
2540.) The letters “TST” (the Temple Street gang moniker) and the number “86”
were imprinted on the back of the jersey between Afable’s shoulder blades. (RT
2540; People’s Exhibit 6C.) One .380 automatic caliber spent shell casing was
recovered two feet from Afable; the word “Win” was stamped on the face of the
shell casing. (RT 2540, 2553.)
Detective Freitas identified appellant as a suspect in the shooting.4 On
October 10 th at approximately 7:30 a.m., he arrived at appellant’s residence,
located at 201 South Columbia Place, Los Angeles, and arrested appellant.
Appellant had a 3" to 4" unwrapped, loose ponytail at the center of the back of his
head. Freitas noticed waves in the hair of the ponytail consistent with it having
4
Detective Freitas did not testify how he identified appellant as a
suspect. Within a few hours after the Reynaldo Hau shooting, however, appellant
was identified by Gabriel Hau Cruz from a set of identification cards that
Detective Robert Bub showed him. (RT 2649-2651, 2741, 2745.) Detective Bub
testified that the identification cards were made “for contacts with known gang
members.” (RT 2741.)
9
been recently wrapped. Freitas took Polaroid photographs of appellant’s upper
torso and head from the front, right side, and back position (People’s Exhibits 5A,
5B and 5C, respectively). (RT 2541-2542, 2549.) Appellant did not have any
tattoos on his body. (RT 2555.)
Later that morning Detective Freitas showed the Polaroid photographs of
appellant to Magallanes and Callejas. The six-pack photographic lineup (People’s
Exhibit 4) shows the photograph of appellant’s upper torso and head from the front
position (People’s Exhibit 5A) in position number 1 (top left). People’s Exhibits
5A, 5B, and 5C, together with appellant’s booking photograph (People’s Exhibit
7), are photographs of appellant taken the morning of his arrest. (RT 2542-2543,
2547-2548, 2552.)
Afable died as a result of a single gunshot wound to the back of the head.
The wound was a “contact wound,” meaning that the gun was placed up against
the head before the shot was fired. (RT 2542-2543.)
2. NORTH BONNIE BRAE STREET INCIDENT INVOLVING

REYNALDO HAU, FRANCISCO PICENO, GABRIEL HAU CRUZ,
AND JOSE AGUILAR ( COUNTS 2-6)
At midnight on October 9, 1994, two men, one of which was wearing a
Halloween mask, walked up to a group of five people in front of a residence on
North Bonnie Brae Street, located in rival Rascals gang territory within two to
three miles of the J & L Video Store. (RT 2632-2633, 2675.) The man without
10
the mask accosted Jose Aguilar at gunpoint (count 6, attempted robbery),
demanded property from the group, struck Francisco Piceno with the gun and shot
him in the face (counts 3 [attempted premeditated murder] & 4 [attempted
robbery]), took Gabriel Hau Cruz’s “Emit” brand watch (count 5, robbery), and
then took Reynaldo Hau’s watch and shot him in the chest (count 2, first-degree
murder). (RT 2674-2684, 2697-2698.) The other individual observed these events
from the sidewalk. The two men then fled on foot. (RT 2642.)
Gabriel Hau Cruz testified, through a Spanish interpreter, that he and four
others, Reynaldo Hau (his brother-in-law), Joaquin Hau Cruz (his brother),
Francisco Piceno and Jose Aguilar, were drinking beer in the driveway of
Aguilar’s residence at 1022 North Bonnie Brae Street. All were standing next to
Gabriel Hau Cruz’s vehicle, which was parked in the driveway, except Reynaldo
Hau was seated in the vehicle. (RT 2268-2631.) A “boy” (whom Hau identified in
court as appellant) walked up to them with another, unidentified, man. (RT 2632-
2633.) Appellant asked for someone named “Eftie.” (RT 2664.) He then drew a
gun stating, “Give me what you have.” (RT 2633.) Gabriel Hau Cruz gave
appellant his “Emit” brand watch. (RT 2634, 2661.) Appellant then put the gun to
Aguilar’s head and demanded his property, but Aguilar did not have anything.
(RT 2634-2635.) Appellant struck Joaquin Hau Cruz with the gun. The gun
dropped to the ground. Gabriel Hau Cruz yelled for Joaquin Hau Cruz to get the
11
gun. Appellant recovered the gun and everyone ran, except Reynaldo Hau who
was still sitting in the car. Gabriel Hau Cruz heard shots, the two assailants ran
off, and he returned moments later to find Reynaldo Hau lying under the car. (RT
2636-2637, 2639-2641.) Gabriel Hau Cruz testified that appellant was wearing
white pants, a dark navy shirt, and a dark colored baseball cap with the letters
“LA” written on the front; he did not see the back of appellant’s head. (RT 2650-
2651, 2663.)
Later that same night, the police showed Gabriel Hau Cruz 15 to 20
photographs. He immediately identified appellant. (RT 2650.) The day after the
shooting, October 10, 1994, Gabriel Hau Cruz identified for police the “Emit”
brand watch with broken crystal that appellant had taken from him. (RT 2652.) At
trial, Gabriel Hau Cruz testified that the “Emit” brand watch seized by the police
from appellant’s bedroom was the watch that appellant took from him. (RT 2654-
2655.)
Joaquin Hau Cruz’s testimony was similar to that of his brother, Gabriel
Hau Cruz, except he could not recall the gunman hitting anyone with the gun. (RT
2675-2677.) Joaquin Hau Cruz identified appellant in court as the shooter (RT
2686-2688), stating that the shooter’s hair was “short with a ponytail.” (RT 2691.)
Appellant asked Joaquin Hau Cruz for his property. Joaquin Hau Cruz told
appellant that he did not have any. (RT 2693.) After taking Gabriel Hau Cruz’s
12
watch, appellant swung the gun at him (Joaquin Hau Cruz) but missed and dropped
the gun. (RT 2676-2679.) Francisco Piceno was telling appellant to calm down.
(RT 2679.) Appellant retrieved the gun, took Reynaldo Hau’s gold “Citizen”
watch, and shot Reynaldo Hau as he was seated in the vehicle. (RT 2676, 2679-
2681, 2684-2685, 2699-2700.) Appellant turned and shot Francisco Piceno in the
face as Francisco Piceno was standing in the street. (RT 2679-2682.) Three shots
were fired. (RT 2693.) Appellant took some of Joaquin Hau Cruz’s beer and left.
(RT 2696.) Joaquin Hau Cruz admitted at trial that when police showed him
photographs on the day after the incident he could not recall whether he identified
anyone as the shooter. (RT 2685, 2688-2689.)
Francisco Piceno testified that of the two individuals that approached the
group, only one had a gun; the individual without the gun merely stood aside
watching. The gunman first grabbed Jose Aguilar by the neck, drew a gun, pinned
him against a car, and asked him whether he wanted to die. (RT 2711-2713.) He
then took Gabriel Hau Cruz’s watch. (RT 2713.) The gunman asked the group
what property they had. Piceno told the gunman to take whatever. The gunman
told Piceno to shut up, and then struck Piceno with the gun, breaking his nose.
(RT 2715, 2717.) Piceno fell to the ground. As he was holding his face, the
gunman walked up to him and shot him in the face. (RT 2717-2719.) Piceno then
played dead. He heard two or three more gunshots fired, but did not see the
13
gunman. (RT 2722-2723, 2725.) A few hours after the shooting, Piceno was
interviewed by police at the hospital and shown some photographs. He selected
the photograph of appellant’s face (a smaller copy of People’s Exhibit 15A) as the
photograph that looked “similar” to the gunman. (RT 2728.) Piceno also
identified appellant in court stating, “It looks like him.” (RT 2728.) The bullet
entered the left side of Piceno’s face, a couple inches up from his chin, and lodged
in his neck, where it still remained at the time of trial. (RT 2720-2721.)
Detective Robert Bub interviewed several witnesses at the Rampart Police
Station in connection with the incident at 1022 North Bonnie Brae Street. He
showed Gabriel Hau Cruz some 25 photographic identification cards that he had
made from police contacts with known gang members. (RT 2741.) The standard
admonition, as shown in People’s Exhibit 17, was given before showing the
identification cards. (RT 2742-2743.) After reviewing the photographic
identification cards Gabriel Hau Cruz identified the photograph of appellant as the
shooter. (RT 2745.) Joaquin Hau Cruz also was shown the photographic
identification cards but did not identify anyone. (RT 2745-2746.)
Detective Bub further testified that he arrived at appellant’s house between
8:00 a.m. and 8:30 a.m. the following morning (October 10, 1994), observed
appellant with a 3 to 4 inch ponytail protruding from the back of his head,
photographed appellant, and retrieved an “Emit” brand watch (People’s Exhibit
14
16) during a search of appellant’s bedroom. (RT 2748-2751.) Later that day
Gabriel Hau Cruz identified People’s Exhibit 16 as the watch that appellant took
from him. (RT 2750-2751.) Four .380 automatic caliber casings were recovered
at the scene of the shooting at 1022 North Bonnie Brae Street. (RT 2739, 2760.)
The casings were fingerprinted, but without any results. (RT 2761.)
The parties stipulated that Reynaldo Hau died from two gunshot wounds,
one to the leg and one to the chest, as depicted in People’s Exhibits 18A, 18B, and
18C. (RT 2747-2748.)
3. SEARCH OF APPELLANT’ S BEDROOM
On October 10, 1994, at approximately 8:00 a.m., Los Angeles Police
Rampart Detectives Charles Salazar and Robert Bub conducted a search of
appellant’s bedroom in his parents’ residence at 201 South Columbia Place, Los
Angeles. Detective Salazar approached the house, a small 2-bedroom bungalow,
and requested that the occupants exit. Seven to eight people came out, including
appellant, both of his parents, and his younger brothers and sisters. (RT 2765-
2766.) Both appellant and his father, the owner of the house, consented to a search
of the residence. (RT 2766.) Appellant’s father identified appellant’s bedroom.
(RT 2766.) The bedroom contained one bed and a sofa that was being used as a
bed. (RT 2468-2469.) A search of the bedroom uncovered an “Emit” brand watch
with cracked crystal, which was later identified by Gabriel Hau Cruz, a digital
15
sportsman Casio watch with black band, a .380 caliber ammunition clip containing
2 live rounds of ammunition, a plastic video cassette container (with the name
“Gerardo Romero” written on it) containing several live .380 caliber rounds of
ammunition, loose .380 and .22 caliber rounds in a dresser drawer, and 2 baseball
caps (one with the letters “LA” imprinted on the front and the other with “WS
Rockwood” imprinted thereon). (RT 2767-2774.)
4. PROSECUTION’ S GANG TESTIMONY
Detective Vincent Balderamma, assigned to the Los Angeles Police
Department’s Rampart Division, testified as the prosecution’s gang expert. In
October 1994, he was a detective trainee assigned to the Rampart Division
CRASH (Community Resources Against Street Hoodlums) unit. (RT 2558-2560.)
Balderamma testified that four principal gangs operated in or around the area
where Afable was killed: the Rockwood gang, the Temple Street gang, the
Eighteenth Street gang, and the Rascals. (RT 2560-2561, 2564.)
Balderamma testified that the Temple Street gang controls the area at the J
& L Video Store. The closest territory to the corner of the video store that the
Rockwood gang controls is Westmoreland and First Street, which is approximately
one and one-fourth of a mile away. (RT 2561-2562.) The Temple Street and
Rockwood gangs were enemies; a Rockwood gang member would be in enemy
16
territory if he went to the J & L Video Store. (RT 2562-2664.) In October 1994,
the Rockwood gang consisted of approximately 150 members. (RT 2560-2561.)
Balderamma testified that the football jersey that Afable was wearing,
bearing the letters “T-S-T”, is Temple Street gang clothing. (RT 2565-2566.) A
Rockwood gang member seeing Afable’s clothing would view that person as a
rival gang member from the Temple Street gang. (RT 2566.) A Rockwood gang
member would shoot and kill a Temple Street gang member to increase his own
prestige in the gang and to instill fear in rival gang members. (RT 2566-2567.)
The two gangs were involved in shootings prior to October 9, 1994. (RT 2568.)
Balderamma also testified that the Rascals and Rockwood gangs were
enemies because the Rascals were friends with the Temple Street gang. (RT
2564.) A Rockwood gang member would increase his prestige within the gang by
going into Rascal gang territory and robbing someone in that territory, regardless
of whether the victim of the robbery was a Rascal gang member. (RT 2568-2569.)
1022 North Bonnie Brae is about a mile or less from Temple and Rampart Streets.
The Temple Street and Rascals gangs “hang[] out there.” (RT 2569.) The area
surrounding 1022 North Bonnie Brae is well outside of any territory controlled by
the Rockwood gang. (RT 2569.) A Rockwood gang member armed with a
handgun roaming in the area of 1022 North Bonnie Brae would be in enemy gang
territory. (RT 2570-2571.)
17
Tattoos signify a way of showing your pride in a gang. Tattooing usually
starts with three dots on the wrist, which signify “my crazy life” in the gang world,
and then progresses to putting the gang name on the body. (RT 2571-2572.)
Balderamma testified that People’s Exhibits 8, 9, 10, 11, and 12, depict appellant
wearing tattoos that show his membership in, and strong commitment to, the
Rockwood gang. (RT 2572-2576.) People’s Exhibit 8 depicts the back of
appellant’s shaved head with the tattoos “RWST” and “LCS”, which stand for
Rockwood Street Locos. The large size of the letters signifies that appellant is
very proud of his gang. (RT 2574.) People’s Exhibit 9 depicts the tattoo “RW”,
which means Rockwood, below appellant’s lower lip and on his left ear lobe, and
three dots and the numbers “213”, which stands for the Los Angeles telephone area
code, on his left hand wrist. People’s Exhibits 10 and 11 are close-ups of the left
ear and lower lip “RW” tattoos shown in People’s Exhibit 9. People’s Exhibit 12
depicts appellant’s right lower leg with the tattoos “Youngster 1,” “VRWST,” and
“LCS.” Youngster is appellant’s gang name, VRWST stands for Varrio
Rockwood Street, and LCS stands for Locos. (RT 2572-2577.) People’s Exhibits
8, 9, 10, 11, and 12 are photographs dated March 1, 1998. (RT 2576.)
5. STIPULATION RE: SAME FIREARM USED IN BOTH THE VIDEO

STORE AND NORTH BONNIE BRAE STREET INCIDENTS
The parties stipulated that “the gun used to kill Reynaldo Hau [] that night
was, in fact, the same gun that was used to kill Eugene Afable; and, furthermore,
18
that one and the same gun fired all the casings at both crime scenes and all the
projectiles at both crime scenes.” (RT 2760-2761.) Detective Salizar also testified
that the same gun was used in both murders. (RT 2774.) The firearm was never
recovered. (RT 2761, 2775.)
B. GUILT PHASE – DEFENSE CASE
Appellant’s defense at the guilt phase consisted of challenges to the
credibility of prosecution witnesses and presentation of an alibi defense. Appellant
impeached the credibility of key prosecution percipient witnesses Callejas,
Magallanes, and Joaquin Hau Cruz, revealing in each instance the uncertainty, and
tentative nature of, their purported identification of him. Appellant’s alibi defense,
consisting of the testimony of Martha Dravis and Magin Munoz, showed that at the
time of the Afable killing appellant was attending a barbeque and social gathering
at Dravis’ residence.5
During the prosecution’s case-in-chief, appellant revealed the uncertainty of
the eyewitness identifications. Callejas testified that when he picked appellant’s
photograph out of a six-pack photographic line-up (People’s Exhibit 4), he told the
police that the person shared “some similarities with the person at the scene.” (RT
2616.) Callejas never told the police that appellant was in fact the person at the
5
Appellant did not testify, instead choosing to rely upon the strength
of his alibi defense and the failure of the prosecution to prove each element of
each offense and enhancement beyond a reasonable doubt. (RT 2866, 2869.)
19
scene. (RT 2615-2618.) Callejas did not provide an in-court identification of
appellant. (RT 2604-2625.)
The defense cross-examination of Magallanes revealed that he too could not
be certain of his identification of appellant. Magallanes admitted on cross-
examination that he never had a direct view of the shooter’s face:
Q: ... Did you ever see this face at any time when it was still?
A: Like standing still?
Q: Yes. The way your face is now and the way mine is now.
A: No.
Q: So at the time that you saw it, it was turning?
A: Yeah. [RT 2527.]
Nor did Magallanes see the shooter exit the video store:
Q: Did you see whether or not this person ran out of the store?
A: By the time he turned back, I looked back at eugene when he was

falling down.
Q: So for all you know, this person may have just walked out of the
store. Right?
A: I don’t know, sir.
Q: You didn’t see this person run out of the store. Is that correct?
A: No. [RT 2527-2528.]
20
Magallanes admitted on cross-examination that the photograph of appellant
did not match the person that he saw in the video store when Afable was shot; the
person in the photograph (appellant) was heavier than the person in the video store.
Magallanes responded to trial defense counsel’s questions:
Q: Now the picture that you saw that the police showed you, that
appeared to be heavier than the person that you saw in the store.
Right?
A: Not really heavy but --
Q: The pictures [People’s Exhibits 5, 5A, 5B, and 5C] were heavier
than the live person that you saw.
A: Yeah. [RT 2525.]
Magallanes witnessed the Afable killing on October 9, 1994, at
approximately 9:00 p.m. The photographs of appellant (People’s Exhibits 5, 5A,
5B, and 5C) all were taken by the police when appellant was arrested the very next
morning at approximately 8:30 a.m. – less than 12 hours later. Magallanes’
testimony that the “pictures [of appellant] were heavier than the live person”
suggests, therefore, that appellant was not the shooter.
Joaquin Hau Cruz admitted during his trial testimony that he could not even
recall whether he selected any photographs of potential suspects when interviewed
at the police station a few hours after the North Bonnie Brae Street incident. (RT
2685.) During cross-examination, he candidly admitted the speculative nature of
his identification of appellant:
21
Q: The only reason you are saying it is him [appellant] now is because
he is the only person down at that end of the [court]room that is of
the right age. Is that correct?
A: Yes. [RT 2688-2689.]
Moreover, the defense contended that the prosecution also failed to prove
beyond a reasonable doubt appellant participated in the murders of Afable and
Reynaldo Hau because it failed to eliminate the logical perpetrator of the offenses
– the only person that shared both close physical characteristics with appellant and
shared the same bedroom with appellant where the “Emit” watch was recovered:
appellant’s brother. When appellant was arrested his brother was present in the
house and, when requested by the police, he exited the residence with appellant.
(RT 2463-2464, 2766) The two shared the same bedroom in the 2-bedroom
bungalow where they resided with their parents, and thus had equal access to the
area from which the “Emit” watch was recovered. (RT 2467-2468, 2774.) The
close physical characteristics shared between brothers can easily produce a
misidentification, especially by individuals with whom there has been no previous
contact. This phenomenon is precisely what trial defense counsel suggested to the
jury during closing summation when he argued, “Your brother certainly looks like
you. Even though you may not think your brother looks like you, he does.” (RT
3004.)
22
Finally, appellant presented an alibi defense to both the Video Store and
North Bonnie Brae Street incidents. Martha Dravis testified that her daughter,
Carla, had several people over at her (Dravis’) house on the afternoon and evening
of October 9, 1994, for a barbeque, including appellant, Kelly Ramos, and Magin
Munoz. (RT 2789.) She recalled the specific day because October 9 th was the day
that she took her son to the hospital for a fever; her husband also was in the
hospital that day recovering from surgery. (RT 2790.) Appellant, whom she had
know for 10 years as Carla’s friend in junior high and high school, was at the
house at 5:00 p.m. when she left to take her son to the hospital. Appellant was
wearing a white T-shirt and white pants. (RT 2802.) She returned home with her
son at 9:00 p.m., having spent two to three hours at the hospital. (RT 2791.)
Appellant was still at the house when she returned. He recalled that appellant
asked to come inside the house to use the restroom, and she recalled that he spoke
with her ill son. (RT 2791-2792.) Ms. Dravis testified, in part:
Q: Now about what time did you leave to go to the hospital?
A: Approximately 5:00. Something like that. I was at the hospital for a

couple of hours. I came back -- so I came back at 9:00. And he
[appellant] asked me permission to go to the bathroom.
And he came and he approached the bed. My son was in bed.
And he talked to my son and told my son that he had also been ill.
Q: Now did you eventually stay overnight at the hospital?
A: Yes. Because after 9:00 I went back to the hospital with my son.
23
Q: And Mr. Romero was still at your house when you went back to the
hospital?
A: Yes. He was still at my house.
Q: Had you noticed if any of the kids had left the party before you went
back to the hospital with your son?
A: No. They were there. Outside. [RT 2791-2792.]
Ms. Dravis left the house again after 9:00 p.m. to take her son back to the
hospital. Appellant was still at the house when she left. (RT 2792, 2809.) Ms.
Dravis remained at the hospital that night with her son. (RT 2810.)
Magin Munoz, appellant’s next-door neighbor, testified that he and
appellant arrived at Carla’s house at approximately 5:00 p.m. (RT 2822.) They
both stayed there continuously until about 10:30 or 11:00 p.m. and then left
together to go home. (RT 2822-2824, 2848, 2856.) Munoz testified, in part:
Q: Were you continuously at her house from 5:00 or 6:00 in the

afternoon?
A: Yeah.
Q: And was Gerardo there all of that time, too?
A: Yes. We were all right there.
Q: How long would you say he was out of your presence during that
period?
A: None. We were all right there. [¶]
Q: When you left, who did you leave with?
24
A: With the same person.
Q: Okay. And where did he take you?
A: Straight home. I went home. I was living with my wife at that time.
[¶]
Q: And when you got home, or got out of the car, what did you do?
A: Went straight home. I said “goodbye” to Gerardo and I walked my

way and I went home.
Q: So the last time you saw Gerardo that night, what was -- where was
he?
A: We were getting out of the car on to the sidewalk [in front of our
houses] and I said “goodbye” and I just walked in. [RT 2824-2825.]
Munoz was a Rockwood gang member at the time, known by the moniker
“Popeye.” (RT 2830-2832.) Appellant also was a Rockwood gang member.
Munoz would call appellant “Gerardo” or “Steam.” (RT 2831-2832.)
Rockwood’s main enemy was the Eighteenth Street gang, not Temple Street or the
Rascals. (RT 2834-2836.) Moreover, Rockwood was not the type of gang where
one had to something illegal to be initiated into the gang. Nor does membership in
Rockwood require any illegal conduct. (RT 2859.) Munoz was accepted into
Rockwood without having to do anything illegal. (RT 2857, 2859.) Appellant had
no tattoos prior to his arrest on October 9, 1994. (RT 2826, 2840-2841.) The
tattoos depicted in People’s Exhibit 8 (i.e., the back of appellant’s shaved head
25
with the tattoos “RWST” and “LCS”) stand for Rockwood Street Locos. (RT
2839.)
The testimony of Dravis and Munoz provided direct evidence of alibi for
the Afable killing, which occurred at 9:00 p.m. Neither provided such direct
evidence for the midnight incident at North Bonnie Brae Street. Yet, appellant
presented indirect evidence of alibi for the North Bonnie Brae Street incident. The
parties stipulated that the same firearm was used in both incidents. (RT 2760-
2761.) Trial defense counsel argued during closing summation that since the same
firearm was used in both incidents, and each occurred on the same evening within
a relatively narrow time period of 3 hours, it could be reasonably inferred
therefrom that the same person was involved in both incidents. (RT 3006.)
Accordingly, appellant’s alibi defense to the Afable killing also extended to the
North Bonnie Brea Street incident.
C. PENALTY PHASE – PROSECUTION’ S CASE
The prosecution’s case in aggravation consisted of evidence of appellant’s
violent criminal activity, including a stipulated prior felony conviction for
attempted robbery (§§ 664, 211), as well as victim impact evidence.
26
1. VIOLENT CRIMINAL ACTIVITY
a. AX ASSAULT ON TONY SCHMIDT
Officer Kevin Burke of the Los Angeles Police Department testified that on
May 27, 1993, at approximately 6:00 p.m. to 6:30 p.m., he arrested appellant for an
ax attack on Tony Schmidt. He received a radio call and responded to 1130 West
Sunset Boulevard. (RT 3161-3162.) Upon his arrival, Tony Schmidt came
running up to his patrol car. Schmidt showed Burke a cut on his right pinky finger;
it was bleeding onto the rest of his hand. (RT 3162-3163.) Schmidt told Burke
that two people who were spray painting graffiti on a building where he is the
property manager. He told them to stop. One of the individuals pulled a small
hammer-size ax from his waistband, swung it, and struck Schmidt’s finger. (RT
3163-3164.) Schmidt retreated into the building then reappeared. The two
individuals charged toward him, one with an ax and one with a knife. Schmidt
displayed a handgun and fired three shots into the air. (RT 3164-3165.) The two
individuals fled but were quickly apprehended, having been found hiding nearby in
some bushes. Appellant had a small hammer-size ax in his waistband. Within five
minutes of the incident, Schmidt viewed the two individuals that were detained in
a field show-up and identified appellant as the individual that attacked him with
the ax. (RT 3165-3168.)
27
b. ATTEMPTED ROBBERY OF VICTOR CAN AND
RESULTING FELONY CONVICTION FOR ATTEMPTED
ROBBERY
Appellant stipulated that on January 6, 1994, he suffered a conviction for
attempted robbery (§§ 664, 211) and was sentenced to 365 days in county jail
(Case No. BA084773) for his involvement in the following incident involving
Victor Can (RT 3132): On October 9, 1993, just after midnight, Victor Can was a
sitting at a bus stop on Beverly Boulevard in Los Angeles when four individuals
approached him and asked for his money. One individual stood behind him,
placing a knife to his throat, and threatening to cut him if he did not cooperate. At
the same time, two others twisted Can’s arm to his neck. (RT 3119-3121.) As a
police vehicle, driven by Los Angeles Police Officer Henry Covarrubias drove by,
Can stood up from the bench, appellant pulled him back, and then as Officer
Covarrubias made a u-turn the four individuals fled on foot. (RT 3121-3122,
3129-3130.) Appellant and two others were apprehended as they fled. (RT 3130-
3131.) Several minutes later, Can was placed inside a patrol car and identified
appellant and the other two individuals in a field show-up as three of the four
individuals that were involved in the incident. (RT 3122.) Can identified
appellant in court stating, “... BUT HE IS THE ONE.” (RT 3124.)
28
c. SHOOTING AT THE RESIDENCE OF GUSTAVO ROSAS ON
NORTH BONNIE BRAE STREET
In the early morning hours on October 3, 1994, Gustavo Rosas, a member
of the Rascals street gang, was sleeping at his residence at 1022 North Bonnie
Brae (located about 100 to 150 feet from where Reynaldo Hau was killed) with
eight other people when he heard approximately seven bullets strike his house,
shattering windows and penetrating walls. (RT 3307-3309, 3318.) A few days
later, Rosas showed police detectives the damage to the house and gave them
several bullet casings he found on the ground. (RT 3310-3311.) Rosas testified on
direct examination, in part:
Q: And do you remember telling the police that you woke up and heard
the bullets being fired into your house and heard someone that you
knew as Gerardo Romero yelling “fuck trash cans”?
A: Um, yes.
Q: And that's the truth, isn’t it?
A: Yes.
Q: And previously you knew Gerardo Romero but then after you joined
Rascals and he joined Rockwood you began having problems; isn't
that right?
A: That’s right. [RT 3311-3312.]
Appellant stipulated that two of the bullet casings recovered by Rosas were
fired from the same gun that was used in the Afable and Hau killings. (RT 3316-
29
317.) However, the other two casings provided by Rosas did not match the casings
recovered from the Afable and Hau killings. (RT 3321.)
d. ASSAULT ON DUK AN
On December 2, 1994, Duk An, an inmate in county jail, was attacked and
severely beaten for about 5 minutes by a group of six inmates after he reported to
authorities that his personal belongings were missing. (RT 3108-3113.) He was
struck by fists and feet all over his body, rendering him unconscious. (RT 3111-
3113.) After the incident, An made “some identifications” to Sheriff Deputies, but
was not asked to make an in-court identification. (RT 3113.) As a result of the
attack, he still has headaches. (RT 3113-3114.)
Deputy Mark Brock testified that An approached him and said he had just
been robbed. An was bleeding from the face, he had a three-quarter inch
laceration across the bridge of his nose, numerous cuts and scrapes on his face, and
visible indentations on his face. (RT 3153.) An’s injuries were consistent with
someone who had been “badly beaten ....” (RT 3154) Deputy Brock further
testified that shortly after the incident An reviewed 30 Hispanic inmates from
behind a privacy curtain and identified appellant and five others as his attackers.
(RT 3155-3157.)
30
e. ASSAULT ON ISAAC GONZALES, WHICH THE JURY
HEARD BUT THEN WAS TOLD TO DISREGARD
On January 5, 1995, Isaac Gonzales, an inmate, was attacked by three or
four inmates while on the 14 th floor of the courthouse in lock-up. Deputy Sheriff
Jackie Spencer testified that she heard yelling and loud thumping coming from the
cell. She responded and found Gonzales laying on the floor holding his head. She
was unsure of his injuries. (RT 3342-3343.) Gonzales did not identify anyone at
the time, nor did he make an in-court identification. (RT 3340, 3344.) Sheriff
deputies quickly checked all of the inmates (fifty to seventy men) for physical
signs of possible involvement in the attack, such as elevated heart rate and/or
abrasions. Appellant and three other inmates had physical signs of possible
involvement and were written-up for the incident; appellant was breathing heavily.
(RT 3344-3347.)
Following the testimony of Gonzales and Spencer, out of the presence of
the jury the trial court stated that it would instruct the jury to disregard the
Gonzales incident because it had not been proven beyond a reasonable doubt that
appellant assaulted Gonzales. (RT 3348.) Subsequently, the jury was instructed to
disregard the testimony of Gonzales and Spencer as it was not proven beyond a
reasonable doubt that appellant assaulted Gonzales. (RT 3359-3360.)
31
f. ASSAULT ON ENRIQUE DIAZ
On March 6, 1997, starting at approximately 3:30 p.m., Enrique Diaz, an
inmate in county jail, was attacked and severely beaten for about four hours by a
group of four inmates, including appellant. (RT 3171-3175, 3180-3181, 3183-
3184, 3188, 3189-3190, 3298-3299.) Diaz knew appellant, a Rockwood gang
member, as “Gerardo Romero” and “Youngster.” (RT 3175-3176, 3184, 3195.)
Appellant also sexually assaulted Diaz by trying to get Diaz to orally copulate him;
Diaz refused and appellant continued to beat him as he tried unsuccessfully to
force Diaz to orally copulate him. (RT 3178.) Appellant told Diaz not to say
anything or he would kill him. (RT 3186.) As a result of his injuries Diaz was
hospitalized for three days. Almost a year after the incident Diaz has nightmares,
frequent headaches and mental problems caused by the attack. (RT 3185-3186.)
2. VICTIM IMPACT EVIDENCE
Eleno Afable (Eugene Afable’s father) testified about the very close
relationship he had with his son (the youngest of five children), his son’s good,
loving nature, and about how his son’s death has devastated his own life. (RT
3080-3090.) His son immigrated to the United States from the Philippines in
1990, four years before his death; he was 17 years old when he was killed. (RT
3087, 3090.) He thinks of his son “every moment of every day” and he has
“nothing to do but just cry” when he thinks of him. (RT 3082-3083.) His son was
32
involved in sports, particularly weightlifting, and talked about becoming a soldier.
(RT 3083-3084.) He recognized People’s Exhibit 25, a poster board of five
separate photographs of his son, showing him in 1988 wearing a boy scout uniform
in the Philippines (Exhibit 25D), smiling for the camera as a teenager (Exhibits
25A, 25B), standing at his mother’s house when he was 16 years old (Exhibit
25E), and, finally, lying face-up in an open casket at his funeral with a crucifix
hanging above him, a single lit candle in the background, and flowers in the
foreground and background (Exhibit 25C). (RT 3085-3089.) He cannot forgive
his son’s killer. (RT 3092-3093.)
Ida Afable (Eugene Afable’s mother) testified about the very close
relationship she had with her son, a loving child whose death changed her life so
much that she is always sad. (RT 3094-3095.) He was a thoughtful, honest child.
(RT 3096.) She recognizes People’s Exhibit 25A as a photograph of her son
dancing, Exhibit 25B when he was 12 and one-half years old, Exhibit 25D
graduating from elementary school in the Philippines, Exhibit 25E taken five days
before he was killed, and Exhibit 25C at his funeral. (RT 3097-3100.) His death
adversely affected his brothers and sisters. (RT 3103.) She remembers him as a
happy child, her inspiration. (RT 3100-3101.)
Reynaldo Hau’s wife, Maria Feliciana Hau Cruz, testified that she and
Reynaldo Hau have two children, ages 9 and 3. (RT 3324-3325.) Reynaldo was a
33
very good person and provided support for her and her children so she could stay
home with them and not work. Since his death, she has to work outside the home
and is separated from her children. The children ask about their father and it is
difficult for them to accept his death. (RT 3325-3327.)
D. PENALTY PHASE – DEFENSE CASE
Appellant’s penalty phase evidence consisted of (1) Dr. Nancy Kaser
Boyd’s clinical examination of appellant and results of psychological testing, and
(2) character witnesses Rosalba Romero, Maria Sosa, Angelina Romero, Martin
Uitz and Yenissen De Santiago. Appellant did not testify. (RT 3350.)
1. CLINICAL ASSESSMENT OF MENTAL HEALTH ISSUES

ADVERSELY AFFECTING APPELLANT
Dr. Nancy Kaser Boyd, Ph.D., a clinical and forensic psychologist, testified
that she examined appellant in January 1997. (RT 3232-3233.) She reviewed
arrest and witness interview reports concerning the charges, and then she
conducted a direct clinical examination which is a series of interviews and
psychological testing. She also interviewed appellant’s family, including his
mother and father. (RT 2322.)
Dr. Boyd testified that appellant suffered from a significant illness as a baby
– a bacterial infection with a very high fever. (RT 3235.) Dr. Boyd testified, in
part:
34
... He had one problem with a very, very high fever and significant
illness as a baby which may be the reason that I tested him as
mentally deficient. And that was treated at County USC. [RT 3235.]
Dr. Boyd further testified that appellant’s intelligence quotient is 77,
revealing a mental deficiency. (RT 3235.) Dr. Boyd testified on direct
examination, in part:
Q: Now you say that you tested him as mentally deficient. What does
that mean?
A: As far as I.Q., my test showed him at 77.
Q: And at what would percentile would that be with the general

population?
A: 94 percentile -- I’m sorry. 6 percentile which means that 94 percent

of people his age would function higher than he.
Q: Would test at higher than a 77 I.Q.?
A: Yes. [RT 3235.]
Dr. Boyd further testified that the death of appellant’s close friend, Joseph
Sosa, to leukemia adversely affected appellant, causing appellant to become
depressed, grief stricken, and despondent. (RT 3236.) Several other extremely
stressful events also adversely affected appellant, causing him to react to his
environment in a militant, forceful manner. When appellant was 12 years old his
mother was diagnosed with uterine cancer; she was away from the home for two
months. (RT 3237.) Appellant was failing at school, receiving failing grades (D’s
35
and F’s) since seventh grade. (RT 3237.) Dr. Boyd testified on direct
examination, in part:
... And according to his school records that I reviewed, he never was
able to come back to an average level of functioning.
He got D’s and F’s from seventh grade on. [RT 3237.]
In Dr. Boyd’s words, “[H]e got no help.” [RT 3238.] His parents were very naive
about the assistance appellant needed, and so he never received the assistance of
the Special Education Department and he never received tutoring. (RT 3238.)
The incident where appellant was stabbed in the alley behind his home created a
vulnerability in him that he coped with by turning to force and violence. (RT
3239.) Dr. Boyd characterized appellant as “socially dysfunctional.” (RT 3238.)
Socially dysfunctional individuals, especially those who have had a period of
positive social behavior, can be successfully treated. (RT 3239.)
2. CHARACTER WITNESSES ROSALBA ROMERO, MARIA SOSA,

ANGELINA ROMERO, MARTIN UITZ AND YENISSEN DE
SANTIAGO
Rosalba Romero, appellant’s 17-year-old sister, testified that appellant is
one of five siblings. She has lived with appellant all of her life. Appellant has
been adversely affected by many family problems. (RT 3205-3206.) She
described four particular incidents that adversely affected appellant: (1) eviction of
the family from their home; (2) stabbed in the arm and chest with a screwdriver in
the alley behind their home; (3) death of close friend to cancer; and (4) mother
36
hospitalized with cancer for an extended period of time during portions of which
appellant, as the oldest child (11 years of age) had to take care of his five siblings.
On December 11, 1990, her family was evicted from their home. She recalls the
date because her younger brother, David Romero, was very ill. They lost
everything, except the clothes they were wearing. Appellant was especially hurt
because he was not permitted to retrieve the trophies he had received for playing
football and sports at the Boys and Girls Club and in school. (RT 3206-3208.)
They lived on the streets for two weeks, and then moved in with Nate Wilson, the
supervisor of the Boys and Girls Club. (RT 3208-3209.) She noticed a change in
appellant’s behavior after the eviction. (RT 3208.)
Appellant was attacked by a group of people in the alley behind their house.
He was stabbed with a screwdriver in his left armpit and toward the center of the
chest. He was not involved with gangs at the time. (RT 3209-3210.)
Appellant had a close, brother-type friendship with Joseph Sosa. They got
along very well and often would be at the house together. Sosa died of throat
cancer in 1992 or 1993. Appellant was badly hurt by his death. (RT 3211-3212.)
Finally, when appellant was 11 years old their mother was hospitalized for
an extended period of time with cancer. (RT 3205, 3221.) Appellant was required
to take care of his five siblings when her aunt was not there. (RT 3222.) She
testified, in part:
37
Q: Are you old enough to remember some serious illness that your
mother experienced?
A: My mom had cancer when I was six years old. And she was in the
hospital for a long period of time. One of my aunts would take care
of us because my dad would work. But it was not the same.
Q: Was Gerardo taking care of you, too, at that time?
A: He would take care of us when my aunt would go out. She wouldn't

tell us, but she would just leave. And he would have to take care of
us.
Q: He was the oldest child at the house?
A: Yes. [RT 3221-3222.]
Maria Sosa testified that her son, Joseph Sosa, died of cancer. Appellant
was a very good friend of Joseph’s since childhood. When Joseph became ill,
appellant helped a lot by visiting often. Appellant has never done anything to hurt
or damage anybody in her family. (RT 3258-3259.)
Angelina Romero, appellant’s mother, testified, through a Spanish
interpreter, that although appellant was born healthy he had a serious illness
throughout the time that she was pregnant with her second son. Appellant was
hospitalized most of the time during her pregnancy. Mrs. Romero testified, in part:
He started vomiting a lot. A lot of diarrhea. Throughout my

pregnancy with this child, he was ill. [¶]
... He spent most of the time at general hospital.
He would be home for two weeks and the thing -- and then he
would spend a month in the hospital. [RT 3263.]
38
Mrs. Romero also testified that she became seriously ill when appellant was
twelve or thirteen years old. Appellant helped take care of his five siblings, four
brothers and a sister, when she was ill. (RT 3263.) Finally, she testified that
appellant was a kind boy with many friends. (RT 3266.)
Martin Uitz testified that he has known appellant, his former neighbor of 10
years, since elementary school. The two often played sports together at the Boys
and Girls Club. Appellant always treated him fairly; appellant treated the other
boys fairly too. (RT 3272-3273.) Uitz recalled that appellant talked about having
nightmares after his friend Joseph Sosa died. (RT 3273-3275.)
Yenissen De Santiago testified that he met appellant at the Boys and Girls
Club when De Santiago was 11 years old. He saw appellant there almost daily.
Appellant’s behavior was good. (RT 3279.) After Joseph Sosa’s death, appellant
stopped coming to the Club. He never saw appellant harm anyone. (RT 3280.)
///
39
ARGUMENT
GUILT PHASE ISSUES
I.
THE EVIDENCE IS INSUFFICIENT AS A MATTER OF LAW TO

SUSTAIN THE FINDING THAT APPELLANT PERPETRATED THE
KILLING OF EUGENE AFABLE, ESPECIALLY WHEN CONSIDERING
THE HEIGHTENED VERDICT RELIABILITY REQUIREMENT AT THE
GUILT PHASE OF A CAPITAL TRIAL, THEREBY REQUIRING
REVERSAL OF APPELLANT’S CONVICTION IN COUNT 1 AS A
DENIAL OF DUE PROCESS (CAL. CONST., ART. 1, § 15; U.S. CONST.,
5 TH , 8 TH , & 14 TH AMENDS.)
A. INTRODUCTION AND SUMMARY OF ARGUMENT
Appellant was found guilty in count 1 of the first-degree murder of Eugene
Afable. (RT 3043-3044.) As explained below, however, there is insufficient
evidence, which is reasonable, credible, and of solid value, to sustain the finding
that appellant perpetrated the killing. The testimony of the only two eyewitnesses
to the murder, Ismael Magallanes and Felix Callejas, identifying appellant as the
perpetrator was unreliable because the testimony was qualified and it was based on
conjecture. Their testimony also was inconsistent on a material point concerning
the perpetrator’s ponytail. Moreover, there was no physical evidence linking
appellant to the scene of the killing (i.e., fingerprints, footprints, DNA, etc.).
Finally, although appellant stipulated that the same firearm was used in the North
Bonnie Brae Street incident later that same night (RT 2760-2761), it does not
necessarily follow that the same person used the firearm in both incidents because
40
multiple people had access to the firearm (i.e., the prosecution’s evidence showed
that multiple people were involved in both incidents).
B. STANDARD OF REVIEW
Faced with a challenge to the sufficiency of the evidence, the court reviews
“the whole record in the light most favorable to the judgment below to determine
whether it discloses substantial evidence – that is, evidence which is reasonable,
credible, and of solid value – such that a reasonable trier of fact could find the
defendant guilty beyond a reasonable doubt.” (People v. Johnson (1980) 26 Cal.3d
557, 578 [emphasis added]; People v. Samuel (1981) 29 Cal.3d 489, 505 [evidence
relied upon must be “reasonable in nature, credible and of solid value”].) “The
standard of review is the same in cases in which the prosecution relies mainly on
circumstantial evidence.” (People v. Rodriguez (1999) 20 Cal.4th 1, 11.) “If the
circumstances reasonably justify the trier of fact’s findings, the opinion of the
reviewing court that the circumstances might also reasonably be reconciled with a
contrary finding does not warrant a reversal of the judgment.” (Ibid., citing People
v. Stanley (1995) 10 Cal.4th 764, 792-793.)
In determining whether a reasonable trier of fact could have

found defendant guilty beyond a reasonable doubt, the appellate
court “must view the evidence in a light most favorable to
respondent and presume in support of the judgment the existence of
every fact the trier could reasonably deduce from the evidence.”
[Citation omitted.] The court does not, however, limit its review to
the evidence favorable to the respondent. As People v. Bassett,
supra, 69 Cal.2d 122, explained, “our task ... is twofold. First, we
41
must resolve the issue in the light of the whole record – i.e., the
entire picture of the defendant put before the jury – and may not limit
our appraisal to isolated bits of evidence selected by the respondent.
Second, we must judge whether the evidence of each of the essential
elements ... is substantial; it is not enough for the respondent simply
to point to ‘some’ evidence supporting the finding, for ‘Not every
surface conflict of evidence remains substantial in the light of other
facts.’ [People v. Johnson, supra, 26 Cal.3d at pp. 576-577 (citation
omitted).]
The federal standard of review, under principles of federal due process,
entails a determination of whether, upon review of the entire record in the light
most favorable to the prosecution, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt. (Jackson v. Virginia
(1979) 443 U.S. 307, 317-320 [99 S.Ct. 2781; 61 L.Ed.2d 560].) The requisite
qualitative nature of the evidence as that which is sufficient to permit the trier of
fact to reach a “subjective state of near certitude of the guilt of the accused ....”
(Id., 443 U.S. at p. 315.)
“‘Evidence which merely raises a strong suspicion of the defendant’s guilt
is not sufficient to support a conviction. Suspicion is not evidence; it merely raises
the possibility, and this is not a sufficient basis for an inference of fact.’” (People
v. Reyes (1974) 12 Cal.3d 486, 500, citing People v. Redmond (1969) 71 Cal.2d
745, 755.) Nor can “substantial evidence” be based on speculation:
We may speculate about any number of scenarios that may have

occurred on the morning in question. A reasonable inference,
however, “may not be based on suspicion alone, or on imagination,
speculation, supposition, surmise, conjecture, or guess work. [¶] ...
42
A finding of fact must be an inference drawn from evidence rather
than ... a mere speculation as to probabilities without evidence.
[People v. Morris (1988) 46 Cal.3d 1, 21 (citations omitted).]
Moreover, in capital cases it is well recognized that heightened verdict
reliability is required at both the guilt and penalty phases of trial. (Beck v.
Alabama (1980) 447 U.S. 625, 627-646 [100 S.Ct. 2382; 65 L.Ed.2d 392]; see also
Kyles v. Whitley (1995) 514 U.S. 419, 422 [115 S.Ct. 1555; 131 L.Ed.2d 490];
Burger v. Kemp (1987) 483 U.S. 76, 785 [107 S.Ct. 3114; 97 L.Ed.2d 638];
Gilmore v. Taylor (1993) 508 U.S. 333, 342 [113 S.Ct. 2112; 124 L.Ed.2d 306].)
Moreover, even in non-capital cases, a conviction that is based on unreliable
and/or untrustworthy evidence violates the constitutional guarantee of due process.
(See White v. Illinois (1992) 502 U.S. 346, 363-364 [112 S.Ct. 736; 116 L.Ed.2d
848] [“Reliability is ... a due process concern”]; Donnelly v. DeChristoforo (1974)
416 U.S. 637, 646 [94 S.Ct. 1868; 40 L.Ed.2d 431] [due process “cannot tolerate”
convictions based on false evidence]; Thompson v. City of Louisville (1960) 362
U.S. 199, 204 [80 S.Ct. 624; 4 L.Ed.2d 654].) A conviction unsupported by
substantial evidence denies a defendant due process of law. (Jackson v. Virginia,
supra, 443 U.S. at p. 318; People v. Bean (1988) 46 Cal.3d 919, 932.)
43
C. THERE IS INSUFFICIENT EVIDENCE, WHICH IS REASONABLE,
CREDIBLE, AND OF SOLID VALUE, TO SUSTAIN THE FINDING
THAT APPELLANT PERPETRATED THE KILLING OF EUGENE
AFABLE
It is axiomatic that to be convicted of first-degree murder the defendant
must have either actually perpetrated the murder or he must have been proven to be
vicariously responsible for the murder. (People v. Matlock (1959) 51 Cal.2d 682,
685 [where person actually performs or actively assists in performing overt act
resulting in death, his act constitutes murder]; Taylor v. Superior Court (1970) 3
Cal.3d 578, 582-583 [vicarious liability of aider and abettor].) The prosecution
proceeded on the theory that appellant was the direct perpetrator of the murder; it
did not proceed on a theory of vicarious liability. (RT 2891-2893.)
The prosecution’s case against appellant for the Afable murder rested
principally on the eyewitness testimony of Ismael Magallanes and Felix Callejas.
Magallanes was sitting a few feet from Afable at the time of the shooting. (RT
2495, 2497.) After he heard the firing of the single shot that struck Afable,
Magallanes did not immediately view the perpetrator. Instead, Magallanes
testified that he first had to stand up, and then he only “got a glimpse” of the
shooter (RT 2498), viewing him for a mere 2 to 3 seconds (RT 2520). Magallanes
had not previously seen the shooter. (RT 2520.) He gave the police a general
description of the shooter (i.e., Hispanic, 5'4" to 5'6" tall, clean shaved, light
complexion, and a shaved head with a hairstyle consisting of a 3 to 4 inch ponytail
44
protruding from the back of his head bound with a rubber band (RT 2504-2505,
2515-2516)) that could have described any number of individuals living in urban
Los Angeles in 1994, regardless of whether those individuals were associated with
the local Rockwood, Temple Street, Eighteenth Street, or Rascals gangs. Not
surprisingly, therefore, a few hours after the shooting when police showed
Magallanes a six-pack photographic lineup (People’s Exhibit 4) with appellant’s
photograph (itself taken only a few hours after the shooting) in position #1,
Magallanes could not be certain of the identification, stating merely that the
photograph in position #1 was “close” and “similar” to, but “heavier” than, the
shooter. (RT 2502-2503, 2516-2517.) Likewise, Magallanes’ in-court
identification of appellant was qualified: he was only “90 percent” certain that the
person sitting at the defense table was the shooter. (RT 2502.)
Nor did Callejas provide a reliable identification of appellant. Callejas was
inside the adjacent laundromat, heard one shot, and saw a person run out of the J &
L Video Store. He had never before seen the person. He had only a side view of
the person, at night, and from a distance of approximately 21 feet. (RT 2606-
2609.) Callejas did not provide an in-court identification of appellant; the
prosecution simply did not ask Callejas to identify appellant in the presence of the
jury. (RT 2604-2625.) The only out-of-court identification he made of a possible
suspect was the following day when police showed him People’s Exhibit 4 – the
45
six-pack photographic lineup with appellant in position #1. Pointing to the
photograph in position #1, Callejas did not identify appellant with any degree of
certainty but, instead, merely stated that the photograph of the person in position
#1 “... had some similarities with the person at the scene.” (RT 2616.) The
general description of the shooter that he gave to police (i.e., light skinned and
bald with an unwrapped ponytail protruding from the back of his head) was similar
to the description given by Magallanes in that it could have described any number
of individuals in urban Los Angeles in 1994. (RT 2609.) Yet, the description also
was materially different. In contrast to Magallanes’ testimony that the person had
a hairstyle consisting of a 3 to 4 inch ponytail protruding from the back of his head
bound with a rubber band, Callejas testified the person had a hairstyle consisting
of an unwrapped ponytail protruding from the back of his head. (RT 2609.)
“Erroneous identification of criminal suspects has long been recognized by
commentators as a crucial problem in the administration of justice.” (Levine &
Tapp, The Psychology of Criminal Identification: The Gap From Wade to Kirby
(1973) 121 U.Pa.L.Rev. 1079, 1081.) Numerous examples of misidentification
have been extensively documented and the problems of eyewitness identification
are well chronicled in the legal and psychological literature. Over three decades
ago, the United States Supreme Court stated, “The vagaries of eyewitness
identification are well-known; the annals of criminal law are rife with instances of
46
mistaken identification.” (United States v. Wade (1967) 388 U.S. 218, 228 [87
S.Ct. 1926; 18 L.Ed.2d 1149].) The High Court also noted “the high incidence of
miscarriage of justice” caused by such mistaken identifications, and warned that
“the dangers for the suspect are particularly grave when the witness’ opportunity
for observation was insubstantial, and thus his susceptibility to suggestion the
greatest.” (Id. at pp. 228-229.) As Justice Marshall pointed out in his dissent in
Manson v. Brathwaite (1977) 432 U.S. 98, 125 [97 S.Ct. 2243; 53 L.Ed.2d 140] in
referring to several additions to the literature: “Studies since Wade have only
reinforced the validity of its assessment of the dangers of identification testimony.”
(Id. at p. 125; see Jackson v. Fogg (2d Cir. 1978) 589 F.2d 108, 112 [convictions
based on testimony that identifies a defendant previously unknown to the witness
is highly suspect].) Subsequently, this Court observed:
Some of the reasons for that unreliability [in eyewitness

identification] were discussed by Judge (later Solicitor General)
McCree in United States v. Russell (6th Cir. 1976) 532 F.2d 1063,
1066: “There is a great potential for misidentification when a witness
identifies a stranger based solely upon a single brief observation, and
this risk is increased when the observation was made at a time of
stress or excitement. ... [T]his danger is inherent in every
identification of this kind, ....” As Judge McCree noted, “This
problem is important because of all the evidence that may be
presented to a jury, a witness’ in-court statement that ‘he is the one’
is probably the most dramatic and persuasive.” (Id. at p. 1067.)
The rule that the testimony of a single witness is sufficient to
prove identity (see Evid. Code, § 411) is premised in part on the
assumption that an eyewitness identification is generally reliable.
Yet Judge Hufstedler has declared that premise to be “at best, highly
dubious, given the extensive empirical evidence that eyewitness
47
identifications are not reliable.” (United States v. Smith (9th Cir.
1977) 563 F.2d 1361, 1365 (conc. opn.).) And with his characteristic
vigor, Chief Judge Bazelon has called on the courts to face up to the
reliability problems of eyewitness identification, to inform
themselves of the results of scientific studies of those problems, and
to allow juries access to that information in aid of their factfinding
tasks. (United States v. Brown (D.C. Cir. 1972) 461 F.2d 134,
145-146, fn. 1 (conc. & dis. opn.).) [People v. McDonald (1984) 37
Cal.3d 351, 363-364.]
The qualified, inconclusive eyewitness identifications made by Magallanes
and Callejas, suggesting that appellant was the shooter, are thus too unreliable to
sustain a conviction for first-degree murder in a capital case because they fail to
meet the substantial evidence test set forth above and they fail to meet the
heightened verdict reliability requirement at the guilt phase of a capital trial. The
most that can be said from reviewing the testimony of Magallanes and Callejas is
that they suspected that appellant might be the shooter; but with only a fleeting
glimpse of the shooter, and not having previously seen him, they could not be
certain of their identification. The jury could not reasonably infer, therefore, that
appellant committed the killing. (See People v. Morris (1988) 46 Cal.3d 1, 21 [“A
reasonable inference ... may not be based on suspicion alone, or on imagination,
speculation, supposition, surmise, conjecture or guess work .... A finding of fact
must be an inference drawn from the evidence rather than ... a mere speculation as
to probabilities without evidence.”].)
48
Moreover, there was no physical evidence linking appellant to the scene of
the killing (i.e., fingerprints, footprints, DNA, etc.), except that appellant stipulated
that “the gun used to kill Reynaldo Hau that night was, in fact, the same gun that
was used to kill Eugene Afable; and, furthermore, that one and the same gun fired
all the casings at both crime scenes and all the projectiles at both crime scenes.”
(RT 2760-2761.) The stipulation does not support a solid, reliable inference that
appellant fired the shot that killed Afable.6 Regardless of the weight of the
evidence of appellant’s involvement in the North Bonnie Brae Street incident, it
does not necessarily follow that the same person used the firearm in both incidents
because the firearm was never found in appellant’s possession (i.e., it was never
recovered) and there was evidence that multiple people had access to the firearm
(i.e., the prosecution’s evidence showed that two suspects were involved in the
North Bonnie Brae Street incident). (RT 2632-2633, 2642, 2675.)
Further, there was evidence that the shooter of Afable did not act alone.
Callejas testified at trial that prior to the shooting he observed a small car drive
6
Nor does defense counsel’s argument to the jury – that the same
person fired the gun in connection with both incidents – support a solid, reliable
inference that appellant fired the shot that killed Afable. (RT 3005-3006.) As
the jury was instructed, argument of counsel is not evidence. (RT 3371; CALJIC
Nos. 1.00, 1.03; People v. Morales (2001) 25 Cal.4th 34, 47 [“we presume that
the jury relied on the instructions, not the arguments, in convicting defendant”];
United States v. Bernard (9 th Cir. 1980) 625 F.2d 854, 857 [“Counsel’s argument
is neither law nor evidence, and the jury is so instructed.”].)
49
through the parking lot adjacent to the video store. (RT 2623.) He saw two boys
and two girls exit the vehicle, all of whom appeared to be the same age as the
person that he subsequently observed running out of the video store after the
shooting. (RT 2618.) Once the shot was fired, he saw the person run out of the
video store towards Rampart Street, he heard a car’s engine start, and he “saw a
small car[,] like a Toyota or Datsun[,]” drive away. (RT 2609-2610.)
Accordingly, the evidence does no more than raise a suspicion of
appellant’s involvement, which alone is insufficient to sustain appellant’s
conviction for the murder of Afable. (See People v. Reyes (1974) 12 Cal.3d 486,
500 [“Evidence which raises a strong suspicion of the defendant’s guilt is not
sufficient to support a conviction.”]; People v. Trevino (1985) 39 Cal.3d 667, 698-
699.)
Finally, during deliberations on February 24, 1998, the jury returned a
question concerning the identifications of appellant by Magallanes and Callejas
stating, “What time was the suspect identified by the first 2 [eye]witnesses [i.e.,
Magallanes and Callejas]? Immediately after, that evening or the next morning?”
(CT 2761; RT 3033-3034. 3037.) The following day, February 25, 1998, at 8:50
a.m., the court reconvened the attorneys outside the presence of the jury and
appellant to discuss the question and a proposed response. (RT 3032.) The parties
and the court discussed that the photographs of appellant were not taken until the
50
following morning from between 8:00 a.m. and 8:30 a.m. and, therefore, the
identifications by Magallanes and Callejas of the photograph of appellant in
position #1 of the six-pack line-up (People’s Exhibit 4) did not occur until the next
morning. (RT 3033-3035.) The jury then was reconvened, outside appellant’s
presence, with the following colloquy:
The Court: We got your note. Let me read it. Once again, counsel
and the court discussed it. Your question is: what time
was the suspect identified by the first two witnesses
immediately after? That evening or the next morning?
Signed by the foreperson dated February 24th .
When you say first two witnesses, you mean the
first two civilian witnesses from over at the video
incident?
Juror No. 8: In the first incident. Yes.
The Court: All right. Counsel have conferred and the answer is
the next morning. Am I correct, gentlemen?
Mr. Brougham: Yes.
Mr. Clark: Yes.
The Court: The next morning.
Juror No. 8: Okay.

The question, again, is what time the next
morning.
The concern is about the lapse of time in
questioning the witnesses and whether there was
maybe a problem in recalling the events as they
occurred because there was so much time involved, as
I understand the question.
There was a memory lapse question.
51
The Court: I don't know -- I don't want to know what you guys are
doing. If you have another question, put it in writing
and we will do our best to answer it. We have
answered this one. If you have another one, fill out a
form and I will keep counsel standing by here. Let’s
do it that way rather than just ad hoc.
Juror No. 8: Okay. [RT 3037-3038.]
The jury’s question concerning the eyewitness identifications, and the
above-quoted colloquy with Juror No. 8 following the response to the question,
demonstrates that the jury was focused on the quality and reliability of the
eyewitness identifications. Together with the length of deliberations
(approximately 10 hours over the course of three days; RT 3026, 3031-3032, 3040-
3042),7 the questions regarding the eyewitness identification show both the
closeness of the case in connection with the Afable murder (count 1)8 and the
prejudicial nature of the unreliable, qualified eyewitness identifications.
Accordingly, reversal of appellant’s conviction in count 1 is warranted.
///
7
This Court has held that jury deliberations of almost six hours are
an indication that the issue of guilt is not “open and shut ....” (People v. Woodard
(1979) 23 Cal.3d 329, 341.)
8
People v. Filson (1994) 22 Cal.App.4th 1841, 1852 [request for
additional instructions indicator of closeness of case], overruled on an unrelated
point in People v. Martinez (1995) 11 Cal.4th 434, 452; People v. Pearch (1991)
229 Cal.App.3d 1282, 1295 [“[j]uror questions ... are indications the
deliberations were close”].
52
II.
THE EVIDENCE IS INSUFFICIENT AS A MATTER OF LAW TO

SUSTAIN THE FINDING THAT APPELLANT COMMITTED THE
MURDER OF EUGENE AFABLE WITH PREMEDITATION AND
DELIBERATION, THEREBY RESULTING IN A DENIAL OF DUE
PROCESS (CAL. CONST., ART. 1, § 15; U.S. CONST., 5 TH , 8 TH & 14 TH
AMENDS.) AND REQUIRING THE CONVICTION IN COUNT 1 TO BE
REDUCED TO SECOND-DEGREE MURDER
Appellant was found guilty in count 1 of the first-degree murder of Eugene
Afable. (RT 3043-3044.) As explained below, assuming, arguendo, that
sufficient evidence was presented that appellant shot Afable (see Argument I,
above), there is insufficient evidence, which is reasonable, credible, and of solid
value, to elevate the intentional killing of Afable from second-degree murder to a
killing done with premeditation and deliberation – first-degree murder. There was
no evidence of a plan by appellant to kill Afable. The purported gang motive for
the killing was very weak, especially given the failure of the prosecution to present
any evidence of prior contact between appellant and Afable, prior contact between
appellant and the Temple Street gang, and/or prior involvement by appellant in the
Rockwood gang. Finally, although the method of killing – a single shot fired at
contact range to the back of the head – may support a specific intent to kill
(second-degree murder), the hasty manner in which the killing was perpetrated
53
shows a rash, impulsive killing which does not support a finding of premeditated
and deliberate first-degree murder.
The standard of review in assessing a claim of insufficiency of the
evidence, the heightened verdict reliability requirement in a capital trial, and the
California and federal constitutional violations that result from a conviction
unsupported by the requisite evidence at trial, are set forth ante, § I.B, and
incorporated herein.
C. THE PROSECUTION FAILED TO SUSTAIN ITS BURDEN OF PROVING

THAT APPELLANT COMMITTED THE MURDER WITH
PREMEDITATION AND DELIBERATION
In assessing the sufficiency of the evidence as to the element of
premeditation and deliberation, “‘[t]he true test is not the duration of time as much
as it is the extent of the reflection. Thoughts may follow each other with great
rapidity and cold, calculated judgment may be arrived at quickly, but the express
requirement for a concurrence of deliberation and premeditation excludes ... those
homicides ... which are the result of mere unconsidered or rash impulse hastily
executed.’” (People v. Velasquez (1980) 26 Cal.3d 425, 435, vacated and
remanded on other grounds in California v. Velasquez (1980) 448 U.S. 903.) A
killing is deliberate and premeditated only if the killer acted as a result of careful
thought and weighing the considerations, as with a deliberate judgment or plan,
54
carried on coolly and steadily according to a preconceived design. (People v.
Anderson (1968) 70 Cal.2d 15, 26.)
Anderson prescribes a tripartite test for assessing the sufficiency of the
evidence to support premeditation and deliberation: (1) the defendant’s planning
activity prior to the homicide; (2) his motive to kill, as gleaned from his prior
relationship or conduct with the victim; and (3) the manner of the killing, from
which it might be inferred the defendant had a preconceived design to kill.
(People v. Anderson, supra, 70 Cal.2d at pp. 26-27; People v. Wharton (1991) 53
Cal.3d 522, 546.) “Anderson does not require that these factors be present in some
special combination or that they be accorded a particular weight, nor is the list
exhaustive. Anderson was simply intended to guide an appellate court’s
assessment whether the evidence supports an inference that the killing occurred as
the result of preexisting reflection rather than unconsidered or rash impulse.”
(People v. Pride (1992) 3 Cal.4th 195, 247; People v. Thomas (1992) 2 Cal.4th
489, 516-517.)
In this case, there is insufficient evidence of each factor. First, there is no
evidence of planning activity. There was no evidence that appellant had discussed
the murder of Afable prior to the killing. Nor was there evidence that appellant
had discussed a killing of a Temple Street gang member. There was no evidence
that the weapon appellant possessed was unique, which might indicate planning
55
activity (i.e., a hand-crafted, fabricated weapon); instead, the weapon used was a
handgun that discharged standard .380 caliber ammunition. (RT 2540, 2553, 2739,
2760-2761.) The prosecution did not present any evidence that the timing of the
killing coincided with another relevant event, suggesting that the killing was a
random occurrence, rather than a pre-planned event. Moreover, appellant did not
move Afable from one location to another to facilitate the killing, suggesting that
the act of shooting Afable was spontaneous, not pre-planned. (See People v.
Hovey (1988) 44 Cal.3d 543, 556 [that defendant armed himself with a knife,
kidnaped and bound his victim, and took her to a secluded location constituted
substantial evidence of a prior plan to kill].) In People v. Hovey, supra, this Court
stated:
Although the evidence was in some conflict on this point, the jury
could conclude that defendant was armed with a knife or other
weapon capable of stabbing. He kidnaped his young victim, tied and
blindfolded her, and drove her to a place he considered secluded.
Although not conclusive proof of a prior plan to kill, such evidence
is certainly substantial evidence thereof. As we recently stated in a
strikingly similar case involving the kidnapping/stabbing of a
12-year-old girl, “[W]hen one plans a felony [kidnapping] against a
far weaker victim, takes her by force or fear to an isolated location,
and brings along a deadly weapon which he subsequently employs, it
is reasonable to infer that he considered the possibility of homicide
from the outset. [Citations.] Thus, there is substantial evidence of a
‘planned’ killing – the most important prong of the Anderson test.”
[Ibid., citing People v. Alcala (1984) 36 Cal.3d 604, 626-627.]
In contrast to the planning activity found in Hovey, which involved
substantial physical contact with, and movement of, the victim, appellant did not
56
have any physical contact with Afable and he did not move Afable to facilitate a
killing. Nor was there evidence that appellant stalked Afable, or that there was any
appreciable period of time between when appellant first saw Afable in the video
store and when appellant fired the fatal shot, thereby supporting an inference that
the act was a rash impulse hastily executed without reflection.
As for motive, the prosecution introduced evidence that the killing was
gang-related, a killing of a Temple Street gang member by a rival Rockwood gang
member, presumably appellant, to increase his prestige in the gang and to instill
fear in rival gang members. (Ante, pp. 6-10, 16-18.) Detective Balderamma
testified for the prosecution that the two gangs were rivals at the time of the killing
and that the two gangs were involved in shootings prior to October 9, 1994. (RT
2562-2664, 2568.) Yet, Balderamma never stated that appellant was a member of
the Rockwood gang, nor did he testify that appellant was a member of any gang, at
the time of the killing. Instead, Balderamma testified that gang members wear
tattoos to show pride in their gang. He testified that the “[t]attooing usually starts
with three dots on the wrist, which signify “my crazy life” in the gang world, and
then progresses to putting the gang name on the body. (RT 2571-2572.)
Indisputably, however, when appellant was arrested the following day for the
57
murder of Afable, he did not have a single tattoo on his body.9 (RT 2555.) The
reasonable inference from Balderamma’s testimony and the lack of a single tattoo
on appellant’s body, therefore, is that contrary to appellant being some type of
hard-core gang member, at the time of the Afable killing he was not a gang
member at all. Nor can appellant’s gang membership reasonably be inferred by the
fact that a baseball cap was recovered in appellant’s bedroom with the word
“Rockwood” imprinted thereon (RT 2767-2774); appellant’s brother shared that
same bedroom, and thus the prosecution failed to present any evidence that the
baseball cap belonged to appellant. Further, there was no evidence of any specific
animosity between appellant and Afable, there was no evidence that appellant
knew Afable or had any prior contact with him, there was no evidence that
appellant had any prior contact with any member of the Temple Street gang, and
there was no prosecution evidence of appellant’s prior participation in the
Rockwood gang.
Finally, as for the manner of killing, the evidence showed that a single shot
was fired at the back of Afable’s head. This does not necessarily demonstrate a
preconceived design to kill in a certain way – a manner of killing that could
9
Detective Balderamma testified extensively about the tattoos
appearing on appellant’s body at the time of trial, which appellant obtained while
incarcerated pending disposition of this case and well after the Afable killing.
(RT 2572-2577.)
58
support a finding of premeditation and deliberation. (See People v. Ratliff (1986)
41 Cal.3d 675, 695-696 [shooting at close range does not necessarily demonstrate
an intent to kill]; see also Braxton v. United States (1991) 500 U.S. 344, 349 [111
S.Ct. 1854; 114 L.Ed.2d 385] [shooting “at a marshal” establishes “a substantial
step toward [attempted murder], and perhaps the necessary intent.”]) A shooting at
close range, therefore, could support an instruction, where applicable, upon the
lesser included offense of involuntary manslaughter and/or the lesser related
offense of assault with a deadly weapon. (See People v. Woods (1991) 226
Cal.App.3d 1037, 1051-1052.)
The manner of killing (a single shot fired at close range) stands in contrast
to the type of evidence routinely upheld by this Court as sufficient to show a
premeditated, deliberate killing, i.e., where the victim is stabbed and beaten
repeatedly. In People v. Hovey, supra, this Court stated:
... [T]he evidence indicated that defendant stabbed or beat Tina

repeatedly in the head. As in Alcala, where the victim was “all cut
up,” such a brutal method of injuring his victim, coupled with the
foregoing evidence of planning and motive, “supports the inference
of a calculated design to ensure death, rather than an unconsidered
‘explosion’ of violence. [Citation.]” [Id. at pp. 556-557, citing
People v. Alcala, supra, 36 Cal.3d at p. 627.]
Moreover, the manner of killing alone will not support a conviction for
premeditated and deliberate first-degree murder. As this Court stated in Anderson,
an appellate court will sustain a conviction where there exists evidence of all three
59
elements (planning, motive, and manner of killing indicating a preconceived
design to kill in a certain way), where there is “extremely strong” evidence of prior
planning activity, or where there exists evidence of a motive to kill, coupled with
evidence of either planning activity or a manner of killing which indicates a
preconceived design to kill. (People v. Anderson, supra, 70 Cal.2d at pp. 26-27.)
Appellant recognizes that deliberation and premeditation can occur in a
brief period of time. (People v. Thomas (1945) 25 Cal.2d 880, 900 [“The true test
is not the duration of time as much as it is the extent of the reflection ...”].) Yet, it
is well established that even the brutality of a killing alone cannot itself support a
finding that the killer acted with premeditation and deliberation.
If the evidence showed no more than the infliction of multiple acts of

violence on the victim, it would not be sufficient to show that the
killing was the result of careful thought and weighing of
considerations. [People v. Caldwell (1965) 43 Cal.2d 864, 869; see
also People v. Tubby (1949) 34 Cal.2d 72, 78.]
Moreover, this Court has
repeatedly pointed out that the legislative classification of murder

into two degrees would be meaningless if “deliberation” and
“premeditation” were construed as requiring no more reflection than
may be involved in the mere formation of a specific intent to kill.
[People v. Wolff (1964) 61 Cal.2d 795, 821; People v. Caldwell,
supra, 43 Cal.2d at p. 869; People v. Thomas, supra, 25 Cal.2d at p.
898.]
Consistent with this principle, this Court has held that in order for a killing
with malice aforethought to be first rather than second-degree murder, “‘[the]
60
intent to kill must be ... formed upon a pre-existing reflection,’ ... [and have] been
the subject of actual deliberation or forethought ....” (People v. Thomas, supra, 25
Cal.2d at pp. 900-901.) The Court has therefore held that “[a] verdict of murder in
the first-degree ... [on a theory of a wilful, deliberate, and premeditated killing] is
proper only if the slayer killed ‘as a result of careful thought and weighing of
considerations; as a deliberate judgment or plan; carried on cooly and steadily,
[especially] according to a preconceived design.’” (People v. Caldwell, supra, 43
Cal.2d at p. 869 [citation omitted].)
Taken together, the evidence is insufficient to support the jury’s conclusion
that appellant’s acted with premeditation and deliberation. The circumstances of
the shooting show an absence of planning activity and a lack of motive to kill – all
reflecting the absence of premeditation and deliberation. The jury’s finding that
the murder of Afable was committed deliberately and with premeditation must be
reversed for insufficient evidence and appellant’s conviction in count 1 reduced to
second-degree murder.
///
61
III.
THE TRIAL COURT PREJUDICIALLY ERRED IN FAILING TO SUA

SPONTE INSTRUCT THE JURY IN CONNECTION WITH COUNT 2
(REYNALDO HAU) ON EXPRESS-MALICE SECOND-DEGREE
MURDER, A LESSER INCLUDED OFFENSE OF THE CHARGE OF
FIRST-DEGREE MURDER
A. INTRODUCTION AND PROCEDURAL BACKGROUND
Appellant was charged in count 2 with the first-degree murder of Reynaldo
Hau (§§ 187, subd. (a), 189.) (CT 247-248; RT 1518-1519.) During a discussion
between the prosecution and the trial court on the theories of guilt on count 2, the
prosecution initially stated its intention to have the jury instructed on both felony
and express-malice theories of first-degree murder. (RT 2891-2892.) The trial
court agreed that the evidence would support both theories. (RT 2891.) The court
also acknowledged that instruction on an express-malice theory would necessitate
instruction on second-degree murder. (RT 2891.) However, the court explained
that instruction on the felony murder theory of first-degree murder alone would not
necessitate an instruction on second-degree murder. (RT 2893.) The prosecution
then stated that “in the interest of streamlining the case” it would proceed only on a
theory of felony murder as to count 2. (RT 2893-2894.) Trial defense counsel
agreed to submit count 2 to the jury on a theory of felony murder only. (RT 2894.)
Subsequently, count 2 was submitted to the jury on a theory of first-degree felony
murder. (RT 2933-2934, 2938-2940, 3017-3018; CT 2767.)
62
B. THE TRIAL COURT IS REQUIRED TO INSTRUCT THE JURY SUA
SPONTE AS TO ALL LESSER INCLUDED OFFENSES, AND AS TO ALL
THEORIES OF LESSER INCLUDED OFFENSES, SUPPORTED BY THE
EVIDENCE
In every criminal case, even absent a request, and there was none here, the
trial court must instruct on general principles of law relevant to the issues raised by
the evidence. (People v. Breverman (1998) 19 Cal.4th 142, 154.) This obligation
includes giving instructions on lesser included offenses when the evidence raises a
question whether all the elements of the charged offense were present, but not
when there is no evidence the offense was less than that charged. (Ibid.; People v.
Turner (1990) 50 Cal.3d 668, 690.) The trial court must so instruct even when, as
a matter of trial tactics, a defendant not only fails to request the instruction, but
expressly objects to its being given. (People v. Breverman, supra, 19 Cal.4th at p.
154; see also People v. Barton (1995) 12 Cal.4th 186, 196, 199-203 [trial court
must instruct on heat-of-passion and unreasonable self-defense theories of
manslaughter, if supported by evidence, even when defendant objects on the basis
that such instructions would conflict with his defense].)
In Beck v. Alabama, supra, 447 U.S. 625 and Hopper v. Evans (1982) 456
U.S. 605 (102 S.Ct. 2049, 72 L.Ed.2d 368), the United States Supreme Court held
that due process and the Eighth Amendment required that a jury in a death penalty
case be instructed on offenses warranted by the evidence because the failure to do
63
so “diminish(es) the reliability of the guilt determination (Beck v. Alabama, supra,
447 U.S. at p. 638) and violates the Eighth Amendment.
[W]hen the evidence is guilty of a serious, violent offense but leaves
some doubt with respect to an element that would justify conviction
of a capital offense – the failure to give the jury the “third option” of
convicting on a lesser included offense would seem inevitably to
enhance the risk of an unwarranted conviction. [Beck v. Alabama,
supra, 447 U.S. at p. 637.]
The sua sponte instructional rule derives from the broad interests served by
it. This Court described these interests as follows:
As we have said, insofar as the duty to instruct applies regardless of

the parties’ requests or objections, it prevents the “strategy,
ignorance, or mistakes” of either party from presenting the jury with
an “unwarranted all-or-nothing choice,” encourages “a verdict ... no
harsher or more lenient than the evidence merits” [citation], and thus
protects the jury's “truth-ascertainment function” [citation]. “These
policies reflect concern [not only] for the rights of persons accused
of crimes [but also] for the overall administration of justice.”
[Citation.] [People v. Breverman, supra, 19 Cal.4th at p. 153.]
In a murder prosecution, the trial court has a sua sponte duty to instruct on
all lesser necessarily included offenses supported by the evidence; this includes the
duty to instruct on every supportable theory of the lesser included offense of
voluntary manslaughter, not merely the theory or theories which have the strongest
64
evidentiary support, or on which the defendant has openly relied. (Id. at pp. 153-
154.)
In other words, a trial court errs if it fails to instruct, sua sponte, on lesser
included offenses that find substantial support in the evidence. (Id. at p. p. 162.)
“‘Substantial evidence’ in this context is “evidence from which a jury composed of
reasonable [persons] could ... conclude[]” that the lesser offense, but not the
greater, was committed.” (Ibid.)
Nor did appellant invite the error with respect to second-degree murder
instructions. (People v. Valdez (2004) 32 Cal.4th 73, 115; People v. Cooper
(1991) 53 Cal.3d 771, 830-831; see also People v. Barton, supra, 12 Cal.4th 186,
198 [“[t]he doctrine of invited error does not ... vindicate the decision of a trial
court to grant a defendant’s request not to give an instruction that is otherwise
proper: the error is still error”].)
C. EXPRESS- MALICE SECOND-DEGREE MURDER IS A LESSER INCLUDED

OFFENSE OF FIRST- DEGREE MURDER AS CHARGED IN COUNT 2
To determine whether a lesser offense is necessarily included in the charged
offense, one of two tests must be met: the “elements” test or the “accusatory
pleading” test. The elements test is satisfied when “‘all the legal ingredients of the
corpus delicti of the lesser offense [are] included in the elements of the greater
offense.’” (People v. Anderson (1975) 15 Cal.3d 806, 809-810, quoting People v.
Francis (1969) 71 Cal.2d 66, 73.) Stated differently, if a crime cannot be
65
committed without also necessarily committing another offense, the latter is a
necessarily lesser included offense within the former. (People v. Miranda (1994)
21 Cal.App.4th 1464, 1467.) The accusatory pleading test states that a lesser
offense is included within the greater charged offense “‘if the charging allegations
of the accusatory pleading include language describing the offense in such a way
that if committed as specified the lesser offense is necessarily committed.’”
(People v. Toro (1989) 47 Cal.3d 966, 972, quoting People v. Geiger (1984) 35
Cal.3d 510, 517, fn. 4.)
Count 2 of the information alleges that “in violation of Penal Code section
187(a) ... [appellant] “did unlawfully, and with malice aforethought murder
Reynaldo Hau, a human being.” (CT 248 [italics added].) (§ 187, subd. (a).)
Second-degree murder is the unlawful killing of a human being with malice
aforethought, but without the additional element of premeditation and deliberation
necessary to sustain a conviction of first-degree murder. (§§ 187, subd. (a), 189;
People v. Jeter (1964) 60 Cal.2d 671, 675; People v. Thomas (1945) 25 Ca1.2d
880, 903-904.) Thus, the charging allegations of the information include language
describing the offense of first-degree murder in count 2 in such a way that if
committed as specified the lesser offense of express-malice second-degree murder
(the unlawful killing of a human being with malice aforethought) is necessarily
committed. Accordingly, aside from the unsettled issue whether express-malice
66
second-degree murder is a lesser included offense of felony murder under the
elements test (People v. Valdez, supra, 32 Cal.4th at p. 115, fn. 17 [“we do not
address here whether second degree murder is a lesser included offense of felony
murder”]),10 here, at the very least, second-degree murder is a lesser included
offense under the accusatory pleading test.
D. THE TRIAL COURT PREJUDICIALLY ERRED BY FAILING TO INSTRUCT

THE JURY ON THE LESSER INCLUDED OFFENSE OF EXPRESS- MALICE
SECOND- DEGREE MURDER BECAUSE SUBSTANTIAL EVIDENCE
EXISTS TO SUPPORT A FINDING OF THE LESSER OFFENSE AND THE
FAILURE TO SO INSTRUCT FORCED THE JURY INTO AN
UNWARRANTED ALL- OR- NOTHING CHOICE TO CONVICT OF THE
GREATER OFFENSE OR ACQUIT
In determining whether the trial court prejudicially erred in failing to sua
sponte instruct the jury on express-malice second-degree murder the issue is
whether the jury could have reasonably concluded that appellant committed
10
A logical application of this Court’s decisions compels the
conclusion that express-malice second-degree murder is a lesser included offense
of both premeditated and felony murder because they are both part of the “one
offense” of first-degree murder. Express-malice murder and felony murder are
merely different theories of the same offense – first-degree murder. (People v.
Hughes (2002) 27 Cal.4th 287, 369.) Second-degree murder is a lesser included
offense of first-degree murder. (People v. Cooper (1991) 53 Cal.3d 771, 827;
People v. Wickersham, supra, 32 Cal.3d 307, 326.) The duty to instruct sua
sponte on lesser included offenses is not satisfied by instructing on only one
theory of an offense if other theories of the same offense are supported by the
evidence. (People v. Breverman (1998) 19 Cal.4th 142, 160.) Given these
holdings, this Court may conclude that second-degree murder is a lesser included
offense of both express-malice and felony murder, as they are both part of the
“one offense” of first-degree murder.
67
second-degree murder but not robbery felony murder, not whether the robbery
evidence was sufficient to sustain the robbery felony murder conviction. (See
People v. Breverman, supra, 19 Cal.4th at p. 162.)
Where the issue on appeal is the failure of the trial court to give an
instruction favorable to the defense, as here, the evidence is not viewed in the light
most favorable to the judgment. (See People v. King (1978) 22 Cal.3d 12, 15-16
[appellate review “of the evidence introduced at trial is necessarily one
emphasizing matters which would justify such instruction, rather than the
customary summary of evidence supporting the judgment.”].) Instead, because
“[d]efendants have a constitutional right to have the jury determine every material
issue presented by the evidence, and a trial court’s failure to instruct on lesser
included offenses denies them that right[]” (People v. Cash (2002) 28 Cal.4th 703,
736; People v. Lewis (2001) 25 Cal.4th 610, 645), if there is any doubt as to
whether the evidence warranted the instruction, doubts as to the sufficiency of the
evidence must be resolved in favor of the accused. (People v. White (1986) 185
Cal.3d 822, 830, overruled on other grounds in People v. Santamaria (1994) 8
Cal.4th 903, 922; see also, People v. Burnham (1986) 176 Cal.App.3d 1134,
1140.)
In a capital case, the failure to instruct on a noncapital lesser included
offense where supported by the evidence violates the Due Process Clause and the
68
Eighth Amendment. (Beck v. Alabama, supra, 447 U.S. at p. 634; Honkies v.
Reeves (1998) 524 U.S. 88, 90 [118 S.Ct. 1895; 141 L.Ed.2d 76]; Schad v. Arizona
(1991) 501 U.S. 624, 646-647 [111 S.Ct. 2491; 115 L.Ed.2d 555] [under the facts
of this case, instruction on second-degree murder provided a sufficient “third
option” to withstand a Beck challenge to trial court’s failure to instruct on other
lesser included offenses].)
Here, the evidence shows that appellant shot Reynaldo Hau while he
(Reynaldo Hau) was seated in a vehicle. (RT 2676, 2679-2681, 2684-2685, 2699-
2700.) Joaquin Hau Cruz testified that appellant also took Hau’s watch. (RT
2697-2700.) Aside from the issue whether the evidence is sufficient as a matter of
law to sustain the robbery felony murder conviction, the jury was free to accept all,
none, or some of the evidence in support of the prosecution’s case. (See People v.
Jeter (1964) 60 Cal.2d 671, 675-676 [second-degree murder issue squarely posed
if jury believed only that portion of the defendant’s testimony which negated
commission of robbery but accepted the prosecution’s testimony in all other
respects].) It is within the province of the jury to assess and weigh all of the
evidence independently. Accordingly, the jury could have found that Joaquin Hau
Cruz’ testimony about the taking of the watch was incredible, especially
considering that he was the only witness, among several witnesses to the killing, to
testify that Hau’s watch was taken.
69
Moreover, the record contains substantial evidence from which the jury
reasonably could find that appellant killed Hau without premeditation or
deliberation. As explained in connection with the argument on the insufficiency of
the evidence to sustain the findings of premeditation and deliberation in
connection with the murder of Afable (count 1), ante, § II, the nature of the killing
itself would not preclude a finding that appellant acted upon impulse. (See People
v. Bradford (1997) 15 Cal.4th 1229, 1345 [the circumstance that the manner of
killing, ligature strangulation, might be somewhat more time-consuming than other
methods, for example, firing a weapon, does not obviate the conclusion that
defendant might not have premeditated or deliberated before killing the
victims.”].)
The trial court’s comments also show that substantial evidence warranted
instruction on the offense of express-malice murder. The trial court and the
prosecutor engaged in the following colloguy:
The Court: ... If you go felony murder only, he is guilty of first-

degree murder or not guilty. If you throw in that
additional express malice theory in count 2, then the
jury must be given the option, obviously, to convict
him of murder under the second-degree under that
theory.
Mr. Brougham: Right.
The Court: I am saying that is fine. You are certainly correct and
the evidence will support either or both of those
theories. [RT 2891 (emphasis added).]
70
The trial court’s explicit statement that the evidence supports instruction on
express-malice murder is persuasive evidence on the issue. (See People v. Baker
(1954) 42 Cal.2d 550, 573 [“The fact that an instruction on intoxication (though
inadequate) was given, indicates that the trial judge had satisfied himself that the
evidence was ... sufficient to put the question ‘within the province of the jury.’ His
judgment on this question would seem to settle all doubts on the matter.”], quoting
People v. Coyne (1949) 92 Cal.App.2d 413, 416-417; People v. Hill (1898) 123
Cal. 47, 52; see also People v. Vincent (1892) 95 Cal. 425, 428; People v. Griggs
(1941) 17 Cal.2d 621, 625; People v. Blake (1884) 65 Cal. 275, 278; People v.
Sanchez (1950) 35 Cal.2d 522, 527-529.)
Finally, a trial court’s failure to instruct on a lesser included offense
suggested by the evidence requires reversal unless the factual question posed by
the omitted instruction was necessarily resolved adversely to appellant under other,
properly given instructions. (People v. Ramkeesoon (1985) 39 Cal.3d 346, 351-
352.) This type of error “cannot be cured by weighing the evidence and finding it
not reasonably probable that a correctly instructed jury would have convicted the
defendant of the lesser included offense.” (Id. at p. 352.)
Indeed, the danger in failing to give instructions on lesser included offenses
is that the jury may reach an unreliable verdict because it is placed in an all or
71
nothing position. In explaining why lesser included offenses are important in
capital cases, the high court stated:
“[I]t is no answer to petitioner’s demand for a jury instruction on a

lesser offense to argue that a defendant may be better off without
such an instruction. True, if the prosecution has not established
beyond a reasonable doubt every element of the offense charged, and
if no lesser offense instruction is offered, the jury must, as a
theoretical matter, return a verdict of acquittal. But a defendant is
entitled to a lesser offense instruction – in this context or any other –
precisely because he should not be exposed to the substantial risk
that the jury’s practice will diverge from theory. Where one of the
elements of the offense charged remains in doubt, but the defendant
is plainly guilty of some offense, the jury is likely to resolve its
doubts in favor of conviction.” [Beck v. Alabama, supra, 447 U.S. at
p. 634; Keeble v. United States (1973) 412 U.S. 205, 212.]
The pressures which create this risk affect the reliability of the fact finding
process and “thereby undermine the reasonable doubt standard.” (People v.
Geiger, supra, 35 Cal.3d at p. 520, overruled on another point in People v. Birks
(1998) 19 Cal.4th 108.)
[I]t is the life and liberty of the defendant in a case such as this that
is at hazard in the trial and there is a continuing duty upon the part of
the trial court to see to it that the jury are properly instructed upon all
matters pertinent to their decision of the cause. [People v.
Wickersham (1982) 32 Cal.3d 307, 325 citing People v. Graham
(1969) 71 Cal.2d 303, 319.]
With the all-or-nothing instructions here, appellant was exposed to the
“‘substantial risk that the jury’s practice will diverge from theory.’” (Beck v.
Alabama, supra, 447 U.S. at p. 634.) There were no comparable instructions
which could have permitted the jury to find appellant guilty of the lesser offense of
72
express-malice second-degree murder (i.e., an intentional murder perpetrated
without premeditation and deliberation). (§ 189; People v. Thomas (1945) 25
Cal.2d 880, 903-904.) Thus, as to count 2, the jury was forced to either convict on
the charged offense or acquit. The jury’s options were thus severely restricted.
(People v. Barton, supra, 12 Cal.4th at p. 196 [jury denied opportunity to decide
whether the defendant was guilty of lesser included offense established by
evidence].)
Reversal of appellant’s conviction in count 2 is warranted.
///
73
IV.
THE OFF-THE-RECORD, UNREPORTED DISCUSSIONS BETWEEN

INTERPRETERS AND TESTIFYING WITNESSES GABRIEL HAU CRUZ,
FRANCISCO PICENO, AND VICTOR CAN PREJUDICIALLY DENIED
APPELLANT THE SIXTH AMENDMENT RIGHT TO CONFRONTATION
AND TO BE PRESENT AT ALL CRITICAL STAGE OF THE CRIMINAL
PROCEEDINGS, THE RIGHT TO DUE PROCESS UNDER THE
FOURTEENTH AMENDMENT, THE CALIFORNIA CONSTITUTIONAL
AND STATUTORY RIGHT TO AN INTERPRETER THROUGHOUT THE
PROCEEDINGS, AND THE RIGHT TO AN ADEQUATE RECORD ON
APPEAL
Prosecution trial witnesses Gabriel Hau Cruz, Francisco Piceno, and Victor
Can testified in Spanish. Their testimony was translated by official, court-
approved interpreters. During the testimony of each of these witnesses, however,
there were off-the-record, unreported discussions between interpreter and witness.
During the prosecutions direct examination of Gabriel Hau Cruz, Spanish
language interpreter Marisa Mares requested and received permission from the
trial court to “inquire” of the witness. This is followed by an exchange off the
record between the interpreter and Gabriel Hau Cruz. (RT 2638-2639.) During
cross-examination of Gabriel Hau Cruz another off-the-record discussion occurred.
(RT 2664.)
During the prosecutions direct examination of Francisco Piceno, Spanish
language interpreter Raymundo Del Rio requested and received permission from
the trial court to “inquire” of the witness. This is followed by an exchange off the
record between the interpreter and Piceno. (RT 2727.) During cross-examination
74
of Piceno, the trial court sua sponte interrupted the court reporter, stating, “Are you
sure that is what he said, Mr. Interpreter? (RT 2731.) This is followed by an
exchange off the record between the interpreter and Piceno. (RT 2731.)
During the prosecution’s direct examination of Victor Can, Spanish
language interpreter Manena Fayos requested and received permission from the
trial court to clarify a question and answer with the witness. This is followed by an
exchange off the record between the interpreter and Can. (RT 3123.) Shortly
thereafter, interpreter Fayos requested and received permission from the trial court
to “inquire” of Can. (RT 3123-3124.) This is followed by yet a third instance
where the interpreter requested and received permission from the trial court to
“inquire” of Can. (RT 3124.)
The off-the-record discussions deprived appellant of the Sixth Amendment
right to confrontation. (See People v. Aguilar (1984) 35 Cal.3d 785, 792-793,
citing U.S. ex. rel. Negron v. New York (2 nd Cir. 1970) 434 F.2d 386, 390-391.)
The discussions also deprived appellant of the Fourteenth Amendment due process
right to a fundamentally fair trial because they raise issues concerning the quality
of the translation and the witness’ ability to understand the translation. An
incompetent translation affects both the substance of the witness’ testimony and
the witness’ credibility, thereby supporting reversal of the judgment on the ground
defendant was denied due process under the federal Constitution. (See People v.
75
Aguilar , supra, 35 Cal.3d at p. 793; Perez-Lastor v. Immigration and
Naturalization Service (9 th Cir. 2000) 208 F.3d 773, 778 (“It is long-settled that a
competent translation is fundamental to a full and fair hearing.”) The discussions
also deprived appellant of the right to be present at all critical stages of the
criminal proceedings because, although seated in the courtroom, he was effectively
excluded from the discussions. (See post, § X.)
The discussion also deprived appellant of the right, guaranteed by the
California Constitution, to an interpreter to interpret the witnesses’ testimony.
(Cal. Const., art. I, § 14.) This is so because the off-the-record discussion were not
translated. (People v. Aguilar, supra, 35 Cal.3d at p. 790.) Article 1, section 14
provides, in part, “A person unable to understand English who is charged with a
crime has a right to an interpreter throughout the proceedings. (Emphasis added.)
This provision of our California Constitution to entitles the accused to an
interpreter for the whole course of the proceeding. (Ibid.)
In People v. Aguilar, supra, in the analogous situation involving an
interpreter appointed for the defendant to interpret the trial proceedings, this Court
reversed the defendant’s conviction, pointedly stating:
The trial court correctly appointed an interpreter for Mata Aguilar,

thus complying with the portion of the Constitution which guarantees
that an interpreter be provided. However, the trial court failed to
follow the last three words of the constitutional provision ¶
“throughout the proceedings” ¶ when it deprived Mata Aguilar of
that right by using his interpreter to translate for the prosecution’s
76
witnesses. California’s Constitution does not provide a half measure
of protection. Rather, it requires that when an interpreter is
appointed for a criminal defendant, that the interpreter must be
provided to aid the accused during the whole course of the
proceedings. (Ibid.)
Moreover, because “[i]t is extremely difficult to pinpoint direct evidence of
translation errors without a bilingual transcript of the hearing” (People v. Aguilar,
supra, 35 Cal.3d at p. 790), and there is no bilingual transcript of the hearing in
this case, and because this Court denied appellant’s request for settlement of the
record of the off-the-record discussions, appellant is deprived of the ability to fully
develop a claim of incompetent translation. A defendant in a criminal case is
entitled to an appellate record adequate to permit “meaningful appellate review.”
(People v. Scott (1997) 15 Cal.4th 1188, 1203; see also People v. Bradford (1997)
15 Cal.4th 1229, 1381-1382; People v. Howard (1992) 1 Cal.4th 1132, 1166
[Under the Fourteenth Amendment, “the record of the proceedings must be
sufficient to permit adequate and effective appellate review.” Under the Eighth
Amendment, “the record must be sufficient to ensure that there is no substantial
risk the death sentence has been arbitrarily imposed.”].) “The record on appeal is
inadequate ... if the complained-of deficiency is prejudicial to the defendant’s
ability to prosecute his appeal.” (People v. Alvarez (1996) 14 Cal.4th 155, 196, fn.
8.) There is an inadequate record of the trial proceedings for appellant to fairly
and fully prosecute his appeal because, as explained below, the unreported
77
discussions occurred during critical testimony of the prosecution’s key witnesses,
thereby undermining the credibility of the recorded testimony of the very witnesses
that gave evidence essential to sustain appellant’s convictions.
Finally, the discussions also violated appellant’s right under Rule 984.4(b)
to a complete and accurate interpretation of “everything that is said” during the
testimony of a witness. Rule 984.4(b) states:
[Complete and accurate interpretation] An interpreter shall use his

or her best skills and judgment to interpret accurately without
embellishing, omitting, or editing. When interpreting for a party, the
interpreter shall interpret everything that is said during the entire
proceedings. When interpreting for a witness, the interpreter shall
interpret everything that is said during his or her testimony.
[Emphasis added.]
Nor did appellant waive the constitutional right to have the entire
proceedings interpreted by failing to object in the trial court. (People v. Aguilar,
supra, 35 Cal.3d at p. 794-795 [no waiver by mere acquiescence].)
The inherent prejudice in the failure to interpret the entire proceedings
alone is sufficient reason to reverse appellant’s convictions. (See People v.
Aguilar, supra, 35 Cal.3d at p. 794-795 [reversing conviction for constitutional
violation of interpreter services without specific prejudice analysis].)
Here, the unreported discussions occurred during critical testimony of the
prosecution’s witnesses. The discussions between Gabriel Hau Cruz and reporter
Mares occurred during testimony about the murder of Reynaldo Hau (charged in
78
count 2) and the robbery of Gabriel Hau Cruz (charged in count 5). (RT 2636-
2665.) The discussions between Piceno and reporter Del Rio occurred during
testimony about a photographic identification of appellant and the identification of
Reynaldo Hau’s killer. (RT 2726-2732.) The discussions between Can and
reporter Fayos occurred during testimony about eyewitness identification and
contact with police officers. (RT 3122-3125.) Accordingly, even when analyzed
under the constitutional standard of prejudice, the prosecution will not be able to
prove that the error was harmless beyond a reasonable doubt because the off-the-
record discussion occurred during testimony critical to the charged offenses. (See
Chapman v. California (1967) 386 U.S. 18, 24 [87 S.Ct. 824; 17 L.Ed.2d 705].)
///
79
V.
THE TRIAL COURT’S EXPLANATIONS AND INSTRUCTIONS TO THE

JURY, WHICH PERMITTED A FINDING OF GUILT BASED ON
EVIDENCE OF APPELLANT’S ASSOCIATION WITH THE ROCKWOOD
GANG, DEPRIVED APPELLANT OF HIS SIXTH AND FOURTEENTH
AMENDMENT RIGHTS TO DUE PROCESS AND A FAIR TRIAL
BECAUSE THERE WAS NO SUBSTANTIAL, CREDIBLE EVIDENCE
THAT THE OFFENSES WERE GANG-RELATED
During voir dire, and then again when it instructed the jury during the guilt-
phase trial, the trial court repeatedly explained to the jury that it could use “gang
evidence” and “gang membership” to prove identity (i.e., that appellant was the
perpetrator of the charged offenses). 11 (RT 2038-2039, 2221-2222, 2919, 2926.)
11
Trial defense counsel did not object to the trial court’s explanations
and instructions to the jury, and he did not request supplemental or clarifying
instructions. The lack of objection does not bar appellate review because the
error affects appellant’s substantial rights. (§§ 1259, 1469; People v. Croy
(1985) 41 Cal.3d 1, 12, fn. 6; People v. Roehler (1985) 167 Cal.App.3d 353, 394-
395 [“Appellate courts review the instructions to a jury regardless of objection
because to do otherwise would reduce litigation to a hypertechnical game of
some sort.”].)
The sua sponte obligation to correctly instruct “reflect[s] concern both for
the rights of persons accused of crimes and for the overall administration of
justice.” (People v. Wickersham, supra, 32 Cal.3d at p. 324; People v. Carpenter
(1997) 15 Cal.4th 312, 380-381 [defendant may challenge on appeal the
preponderance of the evidence standard for other crimes evidence without
objection]; People v. Fitzpatrick (1992) 2 Cal.App.4th 1285, 1291 [court may
review lying in wait murder instruction without objection at trial]; see also
People v. Godwin (1995) 31 Cal.App.4th 1112, 1116; People v. Hall (1989) 208
Cal.App.3d 34, 47; and People v. Andersen (1994) 26 Cal.App.4th 1241, 1249
[various instructions reviewed on appeal without objection].
80
The court explained the use of evidence of gang membership to the prospective
jurors, in part, as follows:
If you hear some gang evidence in this case, if it comes in, it

will come in with a limiting instruction.
You can't just use it to prove guilt without some guidance.
It can come in on certain specified narrow issues, motive,
identity, things of that nature. [RT 2038-2039 (emphasis added).]
The court further explained during voir dire:
If there is gang evidence in this case, I think if we were to ask

everybody in this courtroom if they were in favor of gangs or against
them, I think anybody who is honest will tell you that it is horrible
and bad.
Here is the thing though.
If we have gang evidence in this case, or any case for that
matter, it can only be used by the jury for certain limited and very
narrow purposes.
As I explained last week, perhaps it would be issues of intent
or motive, identity. Things of that nature.
The fact that somebody is in a gang is not in and of itself
evidence of any guilt of any offense nor does it determine any
penalty that may be appropriate. [RT 2221-2222 (emphasis added).]
During the guilt-phase trial, the jury was instructed, in part, as follows:
“Gang membership evidence has been introduced in this case for the limited
purpose of proving motive and intent to commit the crimes charged.” (RT 2919
(emphasis added).) The jury was further instructed, in part, as follows: “Motive is
not an element of the crime charged and need not be shown. However, you may
consider motive or lack of motive as a circumstance in this case. Presence of
motive may tend to establish the defendant is guilty. Absence of motive may tend
81
to show that the defendant is not guilty.” (RT 2926 (emphasis added).)
Accordingly, the jury was instructed that gang membership may establish that the
defendant is guilty of the charges. This reinforced what that the trial court had
explained to prospective jurors during voir dire, i.e., that gang membership may be
used to establish identity.
Although gang membership may be used to show motive and, in turn,
identity of the perpetrator, a defendant’s association with a gang is only relevant
where there is evidence that the crimes are gang-related. (See, e.g., People v.
Roberts (1992) 2 Cal.4th 271, 297-299; People v. Flores (1992) 7 Cal.App.4th
1350, 1355; People v. Gamez (1991) 235 Cal.App.3d 957, 964-966; People v.
Frausto (1982) 135 Cal.App.3d 129, 140-141 [discussing several gang evidence
cases].) In other words, a defendant’s mere association with a particular group
becomes relevant only if the prosecution presents other evidence that the crimes
were group-related. (See People v. Perez (1981) 114 Cal.App.3d 470, 477 [“The
asserted active membership in the ‘CV3’ gang by defendant ... did not have any
‘tendency in reason’ to prove a disputed fact, i.e., the identity of the person who
committed the charged offense.”].)
Here, there was no substantial, credible evidence that the crimes were gang-
related. Detective Balderamma, the prosecution’s gang expert, testified that (1)
Afable (count 1) was a member of the Temple Street gang (RT 2565-2566), (2) the
82
Rockwood and Temple Street gangs previously were involved in shootings (RT
2568), and (3) the area surrounding North Bonnie Brae Street (where the offenses
charged in counts 2 through 6 were committed) is enemy gang territory for a
Rockwood gang member (RT 2569-2571).
With respect to the Afable killing, although Afable was a Temple Street
gang member (RT 2495-2496), there was no direct evidence that appellant was
associated with the Rockwood gang, or any other gang, at the time of the offense.
There was no testimony that appellant was a gang member at the time of the
offense. There was no evidence of appellant’s involvement in any prior gang-
related activity. Also, there was no evidence that appellant was wearing gang
clothing or colors, nor evidence that a gang-related epithet was uttered or sign
made, at the time of the offense. The only circumstantial evidence of appellant’s
possible association with the Rockwood gang was the recovery of two baseball
caps in a bedroom he shared with his brother. (RT 2467-2468, 2774.) One cap
bore the innocuous letters “L.A.” on the front; the other had “WS Rockwood”
written on the front. (RT 2769; People’s Exh. 19.) This circumstantial evidence,
however, does not amount to credible evidence of appellant’s association with the
Rockwood gang because the prosecution never produced evidence that the cap
bearing the words “WS Rockwood” belonged to appellant. For example, there was
no evidence that appellant’s name was written on the cap, or that appellant was
83
ever seen wearing the cap, or that the cap even fit appellant. The location of the
cap, in a room appellant shared with his brother, made it equally as likely that the
cap belonged to his brother. Under the circumstances described above, it would be
pure speculation to conclude that the cap was evidence of appellant’s association
with the Rockwood gang.
With respect to the North Bonnie Brae Street incident involving counts 2
through 6, there was simply no evidence at all that the violence was gang-related.
In addition to the lack of gang-related evidence cited above, there was no evidence
that anyone involved in the incident was associated with a gang.
Moreover, Detective Balderamma testified that tattooing expresses the
depth of passion a member has for his gang. (RT 2572.) At the time of his arrest,
however, appellant had no tattoos. (RT 2555.)
The prosecution introduced photographs of appellant’s tattoos as evidence
that appellant was associated with the Rockwood gang, not only to suggest that he
was the killer of Afable and Reynaldo Hau, but also to argue the inference that the
killings were gang-related. (RT 2572-2576.) The photographs were taken on
March 1, 1998. (RT 2576.) The evidence merely showed appellant’s possible
association with the Rockwood gang while he was in jail awaiting trial – three and
one-half years after the charged offenses occurred. (RT 2576.)
84
The evidence is woefully insufficient to support an inference that either the
Afable killing, or the Reynaldo Hau killing and other criminal activity at North
Bonnie Brae Street, was gang-related. Accordingly, the trial court’s explanations
and instructions to the jury, which permitted a finding of guilt based on evidence
of appellant’s association with the Rockwood gang after the commission of the
offenses, lessened the prosecution’s burden of proof in violation of the state and
federal constitutional rights to trial by jury and due process. (See United States v.
Jobson (6 th Cir. 1996) 1102 F.3d 214, 222 [if gang-related evidence is admitted,
the failure to instruct the jury on proper consideration of the evidence may be
reversible error].)
Jury instructions provide essential guidance to the jury. (Carter v. Kentucky
(1981) 450 U.S. 288, 302 [67 L.Ed.2d 241]; Bollenbach v. United States (1946)
326 U.S. 607, 612 [90 L.Ed.2d 350]; People v. Thompkins (1987) 195 Cal.App.3d
244, 250.)
Jurors are not experts in legal principles; to function

effectively, and justly, they must be accurately
instructed in the law. [Carter v. Kentucky, supra, 450
U.S. at p. 302.]
Failure to adequately instruct the jury upon matters relating to proof of any
element of the charge and/or the prosecution’s burden of proof thereon violates the
defendant’s federal (6 th and 14 th Amendments) and California (Art. I, § 15 and §
16) constitutional rights to trial by jury and due process. (See Carella v. California
85
(1989) 491 U.S. 263, 270 [105 S.Ct. 218; 109 L.Ed.2d 218] [“misdescription of an
element of the offense ... deprives the jury of its factfinding role” and thus is “not
curable by overwhelming record evidence of guilt”] (conc. opn. of Scalia, J.);
Yates v. Evatt (1991) 500 U.S. 391, 403-406 [111 S.Ct. 1884; 114 L.Ed.2d 432],
disapproved on other grounds in Estelle v. McGuire (1991) 502 U.S. 62, 73, fn. 4
[112 S.Ct. 475; 116 L.Ed.2d 385]; Rose v. Clark (1986) 478 U.S. 570, 580-581
[106 S.Ct. 3101; 92 L.Ed.2d 460]; People v. Kobrin (1995) 11 Cal.4th 416, 423-
424, 428-429; People v. Harris (1994) 9 Cal.4th 407, 457 (conc. & dis. opn. of
Kennard, J.); People v. Lee (1987) 43 Cal.3d 666, 673-674; People v. Hernandez
(1988) 46 Cal.3d 194, 211; see also People v. Macedo (1989) 213 Cal.App.3d 554,
561 [“Conflicting or inadequate instructions on intent are closely related to
instructions that completely remove the issue of intent from the jury's
consideration ... [and] they constitute federal constitutional error [citation]”.)
Instructional errors, including “misdescriptions, omissions, or presumptions
– as a general matter fall within the broad category of trial errors subject to
Chapman ... review on direct appeal.” (People v. Flood (1998) 18 Cal.4th 470,
499.) Accordingly, reversal of appellant’s convictions is required unless the error
was harmless beyond a reasonable doubt. (See Chapman v. California, supra, 386
U.S. at p. 24.)
86
The trial court placed no effective limitation on the use of the evidence of
appellant’s association with the Rockwood gang after the charged offenses
occurred. Indeed, the trial court’s explanations and instructions encouraged the
jury to use this evidence to prove that appellant perpetrated the offenses. Twice
during voir dire the trial court explicitly told prospective jurors that “gang
evidence” could be used to prove “identity.” (RT 2038-2039, 2221-2222.) Then,
when instructing the jury during the guilt-phase trial, the trial court reinforced this
explanation by instructing that gang membership may be used to prove motive and,
in turn, evidence of motive may be used to establish guilt. (RT 2919, 2926.) The
trial court’s explanations and instructions on gang evidence permitted the jury to
draw the unreasonable inference that appellant was guilty of the offenses on the
theory of “guilt by association” – i.e., appellant’s association with the Rockwood
gang several years after the offenses occurred. (See In re Wing Y. (1977) 67
Cal.App.3d 69, 79.)12
12
An inference of criminal activity from guilt by association cannot
be drawn even in circumstances where the standard of proof is far less than that
necessary to sustain a conviction. For example, in the context of the issue
whether the evidence supports probable cause to conduct a search for contraband,
a defendant’s mere association with others cannot alone constitute probable cause
to search. (Ybarra v. Illinois (1979) 444 U.S. 85, 91 [100 S.Ct. 338; 62 L.Ed.2d
238] [“mere propinquity” to suspect premises or persons involved in selling
heroin does not constitute probable cause]; Sibron v. New York (1968) 392 U.S.
40, 62 [88 S.Ct. 1889; 20 L.Ed.2d 917] [“The inference that persons who talk to
narcotic addicts are engaged in criminal traffic in narcotics is simply not the sort
of reasonable inference supportive of an intrusion by the police upon the
87
The error was exploited during closing argument when the prosecution
urged the jury to find appellant guilty based, in material part, on evidence of his
association with the Rockwood gang. (See People v. Lee, supra, 43 Cal.3d at p.
677 [finding harmless instructional error based, in part, on correct focus of
prosecutor’s closing argument].) The prosecutor argued:
The back drop or the context of this case, as it would be in

any other gang related case, is the mentality or values that drive a
gangster like Gerardo Romero to commit crimes so ruthlessly foreign
to the rest of mainstream society.
It is important, I think, for us to take a few minutes to
understand the mentality that Detective Balderamma describes for us
at trial .... [¶]
And understand the strength of the motive that Gerardo
Romero had to kill which confirms and corroborates the
identification made of Gerardo Romero by the witnesses. [¶]
Detective Balderamma told you how merely spotting a rival
gang member is sufficient reason to go up and shoot that rival gang
member because if you go up and shoot that rival gang member, you
gain respect, stature from your gang in the streets. [¶]
Again, if you understand what Detective Balderamma tried to
explain during the trial, I think you will agree and you will
understand that Gerardo Romero in the act of going into rival gang
neighborhoods and robbing people and killing people as he robbed
them makes him a more feared man in the streets.
That is the motive. And if you understand the motive and the
reasons why those two victims are not with us, you understand how
clearly this implicates him and ties in and corroborates the
identification made by him – made by the witnesses in this case. [RT
2973-2975.]
individual’s personal security.”]; United States v. Wells (8 th Cir. 2000) 223 F.3d
835, 839 [no probable cause based on defendant’s known association with
another suspect].)
88
This was a close case on the issue of whether appellant perpetrated the
killing of Eugene Afable (count 1). (Ante, § I.) Appellant also presented
substantial evidence that he was not the perpetrator of the offenses charged in
counts 2 through 6. (Ante, pp. 19-26.) Appellant recognizes that in addition to the
gang membership evidence the prosecution presented eyewitness identification
testimony and evidence of appellant’s possession of the stolen watch. (Ante, pp. 6-
16.) Yet, the jury was free to accept the alibi defense presented by appellant and
reject the evidence in support of the prosecution’s case. (See People v. Jeter,
supra, 60 Cal.2d at pp. 675-676.) Accordingly, because the prosecution’s case was
closely balanced against appellant’s alibi defense, and the prosecution’s case
turned upon the credibility of eyewitnesses whose vulnerabilities were exposed by
appellant’s trial defense counsel, the prosecution cannot sustain its burden of
proving that the instructional error was harmless beyond a reasonable doubt.
///
89
VI.
THE TRIAL COURT ERRONEOUSLY INSTRUCTED THE JURY IN

CONNECTION WITH COUNT 1 (EUGENE AFABLE) THAT IT COULD
NOT RETURN A VERDICT OF SECOND-DEGREE MURDER UNLESS IT
FIRST UNANIMOUSLY ACQUITTED APPELLANT OF FIRST-DEGREE
MURDER, THEREBY REQUIRING REVERSAL OF APPELLANT’S
CONVICTION IN COUNT 1 FOR A VIOLATION OF THE STATE AND
FEDERAL CONSTITUTIONAL RIGHTS TO DUE PROCESS AND JURY
TRIAL (CAL. CONST., ART. I, §§ 7, 15, 17; U.S. CONST., 5 TH , 6 TH , 8 TH ,
AND 14 TH AMENDS.)
The jury was instructed that in connection with count 1 if it found beyond a
reasonable doubt that the crime of murder was committed, then it could find
appellant guilty of either first-degree murder or of the lesser offense of second-
degree murder. (RT 2940-2941.) The instruction required the jury to find
appellant not guilty of first-degree murder before it could return a verdict on
second-degree murder. (RT 2941.) The court instructed the jury:
If you are convinced beyond a reasonable doubt and

unanimously agree that the crime of murder has been committed by
the defendant, but you unanimously agree that you have a reasonable
doubt whether the murder was of the first or of the second-degree,
you must give defendant the benefit of that doubt and return a verdict
fixing the murder as of the second-degree. [RT 2941.]
As explained below, the instruction violated appellant’s Fifth, Sixth, Eighth
and Fourteenth Amendment rights to due process, trial by jury, and full, fair, and
reliable jury consideration of lesser included offenses in a capital case.
90
B. REQUIRING A CAPITAL CASE JURY TO UNANIMOUSLY ACQUIT ON
THE GREATER OFFENSE BEFORE BEING PERMITTED TO CONVICT OF
A LESSER INCLUDED OFFENSE VIOLATES DUE PROCESS, JURY TRIAL,
AND EIGHTH AMENDMENT GUARANTEES
Appellant recognizes that this Court has held that a jury must unanimously
agree to acquit a defendant of a greater charge before returning a verdict on a
lesser charge. (People v. Fields (1996) 13 Cal.4th 289, 310-311.) The Court
should reconsider the holding, however, as it precludes full jury consideration of
lesser included offenses, and thereby implicates the due process and jury trial
guarantees of the Fifth, Sixth and Fourteenth Amendments and the Eighth
Amendment’s requirement for heightened reliability in capital cases.
“Where one of the elements of the offense charged remains in doubt, but
the defendant is plainly guilty of some offense, the jury is likely to resolve its
doubts in favor of conviction.” (Beck v. Alabama, supra, 447 U.S. 625, 634,
quoting Keeble v. United States (1973) 412 U.S. 205, 212-213.) Because “[s]uch
risk cannot be tolerated in a case in which the defendant’s life is at stake” (id. at p.
637), the United States Supreme Court has held that a defendant accused of capital
murder has a due process and Eighth Amendment right to lesser included offense
instructions. (Id. at pp. 637-638.) “[P]roviding the jury with the ‘third option’ of
convicting on a lesser included offense ensures that the jury will accord the
defendant the full benefit of the reasonable-doubt standard.” (Id. at p. 634.) An
instruction that the jury cannot convict on the lesser charge unless it first
91
unanimously votes to acquit on the greater charge prevents a capital case jury from
making use of lesser included offense instructions in the way contemplated by
Beck, and subjects jurors to the same pressure to ignore the reasonable doubt
standard that they would face if no lesser included offense instruction were given
at all.
The unanimity requirement prevents the jury from giving effect to lesser
included offense instructions because it encourages false unanimity and coerced
verdicts. “Members of the jury who have substantial doubts about an element of
the greater offense, but believe the defendant guilty of the lesser offense, may very
well choose to vote for conviction of the greater rather than to hold out until a
mistrial is declared, leaving the defendant without a conviction of any charge.”
(Jones v. United States (D.C. 1988) 544 A.2d 1250, 1253; see also United States v.
Tsanas (2 nd Cir. 1978) 572 F.2d 340, 346 [“if the jury is heavily for conviction on
the greater offense, dissenters favoring the lesser may throw in the sponge rather
than cause a mistrial that would leave the defendant with no conviction at all,
although the jury might have reached sincere and unanimous agreement with
respect to the lesser charge”]; Cantrell v. State (GA 1996) 469 S.E.2d 660; State v.
Ferreira (HI 1990) 791 P.2d 407, 411-412 [jury need not unanimously reject the
greater charge in order to consider the lesser included offense, and an instruction
requiring this procedure is reversible error].)
92
In United States v. Tsanas, supra, 572 F.2d 340, for example, Judge
Friendly recognized the reality that an acquittal-first instruction may result in “the
defendant ... being convicted on the greater charge just because the jury wishes to
avoid a mistrial ....” (Id. at p. 346.) This is so because, “[i]f the jury is heavily for
conviction on the greater offense, dissenters favoring the lesser may throw in the
sponge rather than cause a mistrial that would leave the defendant with no
conviction at all, although the jury might have reached sincere and unanimous
agreement with respect to the lesser charge.” (Ibid.) This view was also expressed
by the Ninth Circuit in United States v. Jackson (9 th Cir. 1984) 726 F.2d 1466,
1469-1470, where the court explained that if the jury must unanimously agree on
acquittal on the greater offense before returning a conviction on a lesser included
offense, there is a risk that jurors who have a doubt that the defendant is guilty of
the greater offense, but who are convinced the defendant is guilty of some offense,
will likely resolve their doubts in favor of convicting the defendant of the greater
offense, rather than holding out and not convicting the defendant of anything at all.
(Id. at pp. 1469-1470; see also Catches v. United States (8 th Cir. 1978) 582 F.2d
453, 459 [referring to Judge Friendly’s opinion in Tsanas as a “well-reasoned
rule”].)
The acquittal-first rule was criticized and abandoned by the Arizona
Supreme Court in State v. LeBlanc (AZ 1996) 924 P.2d 441 because it encourages
93
“false unanimity” and “coerced verdicts.” (Id. at 442.) The court stated that
“requiring a jury to do no more than use reasonable efforts to reach a verdict on the
charged offense is the better practice and more fully serves the interest of justice
and the parties.” The court concluded that the jury should be instructed that it may
deliberate on and return a lesser offense “if it either (1) finds the defendant not
guilty on the greater charge, or (2) after reasonable efforts cannot agree whether to
acquit or convict on that charge.” (Ibid.)
The unanimity requirement also prevents the jury from giving effect to
lesser included offense instructions because it gives an unfair advantage to the
prosecution. (Cantrell v. State (GA 1996) 469 S.E.2d 660, 662 [acquittal-first
instruction “gives the prosecution an unfair advantage”].) This is so because the
acquittal-first rule is based on “the desire to avoid lending encouragement to jurors
who are irrationally holding out for a lesser charge” while at the same time the rule
“lends support to jurors who are irrationally holding out for a greater charge.”
(People v. Helliger (NY 1998) 691 NY.S.2d 858, 865.)
Rationality does not necessarily favor one side or the other

when there is disagreement. When a court submits a greater and a
lesser a legal determination has been made that either position could
be rationally based. A court may only submit a lesser offense when
“there is a reasonable view of the evidence which would support a
finding that the defendant committed such lesser but did not commit
the greater.” [Citation.] There is no legal presumption that one
position is more rational than the other. In cases where lenity is not
the primary or only evil to be avoided, it may be wise for Court to
read the statute to the jury, as the Legislature has directed, and advise
94
them that they may convict upon any of the counts submitted ....
[Ibid.]
(See also Jones v. United States (DC 1988) 544 A.2d 1250, 1253-1254 [acquittal-
first instruction which requires jury to take affirmative step by rendering acquittal
of greater offense before it may consider lesser offense improperly interferes with
jury’s deliberations by encouraging jury to favor conviction of greater offense].)
Accordingly, the acquittal first instruction violates the settled principle that
“[t]here should be absolute impartiality as between the People and the defendant in
the matter of instructions.” (People v. Moore (1954) 43 Cal.2d 517, 526-527;
Reagan v. United States (1895) 157 U.S. 301, 310 [15 S.Ct. 610; 39 L.Ed. 709].)
C. APPELLANT WAS SEVERELY PREJUDICED BY THE ACQUITTAL- FIRST

INSTRUCTION BECAUSE THE EVIDENCE DOES NOT NECESSARILY
SUPPORT A CONVICTION FOR THE GREATER OFFENSE OF FIRST-
DEGREE MURDER
Because an acquittal-first instruction influences the jury’s deliberative
process and undermines both the fairness and the reliability of its verdict, it affects
basic structural rights. (See, e.g., Arizona v. Fulminante (1991) 499 U.S. 279,
309-310 [111 S.Ct. 1246; 113 L.Ed.2d 302; People v. Cahill (1993) 5 Cal.4th 478,
493, 501-502.) As the Court can only speculate about the jury’s deliberation
process, the giving of this instruction does not lend itself to harmless error
analysis; reversal of appellant’s first-degree murder conviction is required. (Ibid.)
95
Alternatively, instructional error which violates only state law requires
reversal if “it is reasonably probable that a result more favorable to the [defendant]
would have been in the absence of the error.” (People v. Watson (1956) 46 Cal.2d
818, 836; People v. Blakeley (2000) 23 Cal.4th 82, 85.)
Where the error violates appellant’s rights under the federal Constitution
reversal is required under Chapman v. California, supra, 386 U.S. at p. 24, unless
the error was harmless beyond a reasonable doubt. Under this test, the appropriate
inquiry is “not whether, in a trial that occurred without the error, a guilty verdict
would surely have been rendered, but whether the guilty verdict actually rendered
in this trial was surely unattributable to the error.” (Sullivan v. Louisiana (1993)
508 U.S. 275, 279 [113 S.Ct. 2078; 124 L.Ed.2d 182].)
Assuming harmless-error review should be undertaken, reversal of the first-
degree murder conviction (count 1) is still required. First, the prosecution failed to
sustain its burden of proving that appellant committed the murder of Afable with
premeditation and deliberation. (Ante, § II.) Second, given the weakness of the
evidence in support of the first-degree murder conviction in count 1 (ante, § II.C),
there is a reasonable probability of a result more favorable to appellant in the
absence of the error (i.e., a conviction for second-degree murder – an intentional
but unpremeditated murder). For the same reason, the prosecution could not
possibly prove beyond a reasonable doubt that the instructional error did not
96
contribute to the verdict. Appellant’s first-degree murder conviction in count 1
cannot be deemed “surely unattributable to the” erroneous acquittal-first
instruction. (See Sullivan v. Louisiana, supra, 508 U.S. at p. 279.) Reversal of
appellant’s conviction in count 1 is required.
///
97
VII.
THE TRIAL COURT’S UNILATERAL CORRECTION OF THE

REPORTER’S TRANSCRIPT FOR ACCURACY OF A MATERIAL
MATTER NOT SUPPORTED BY THE RECORD PREJUDICIALLY
DEPRIVED APPELLANT OF DUE PROCESS OF LAW AND A
COMPLETE AND ACCURATE RECORD OF THE TRIAL
PROCEEDINGS ADEQUATE FOR A FAIR DISPOSITION OF THE
INSTANT APPEAL
The reporter’s transcript reflects that the trial court instructed the jury, “You
must not decide separately each special circumstance alleged in this case.” (RT
2952 [emphasis added].) On November 1, 2002, during record correction
proceedings, the trial court sua sponte proposed correcting the reporter’s transcript
to strike the word “not” from the above-quoted sentence. (RT Certification
Proceedings 11/01/2002, pp. 239-245; CT Supp. IV, p. 429.) Counsel for
appellant objected on the grounds that it would be improper to assume that the
proposed correction is accurate because the written jury instructions are not part of
the appellate record.13 (RT Certification Proceedings 11/01/2002, pp. 240-241.)
The Deputy Attorney General responded for the prosecution by offering the
testimony of the prosecutor, Dave Brougham, who was present when the jury
instructions were read to the jury, to offer his recollection of the events:
13
The Clerk of the Superior Court certified that “[t]he written jury
instructions given and/or refused in the guilty-phase (sic) of the trial are not
contained in the court filed.” (CT Supp. IV, p. 435.)
98
The Court: .... Okay. Either side have any further argument or
comment?
Mr. Katz: Your honor, not having the benefit of having been
there, I would wonder whether Mr. Brougham might
be able to offer something in case, for example, it --
that it may not be his normal practice to follow along
with the court when the court reads instructions and to
comment if he observed any misreading.
The Court: I don't know if that's his practice or not.
Mr. Katz: I'd like to ask him whether it is.
The Court: Go ahead and ask.
Mr. Brougham: As I indicated to counsel, although I would generally

follow along, I can't say I always do. Sometimes we're
prepping for argument mentally. But I did indicate to
counsel in response to his question that if I overheard a
jury instruction which I believe was incorrectly being
read, such as the portion where the court -- the
transcript reads: “you should not consider each special
circumstance separately.” It's being changed the other
way around, “You should” -- if I heard that, it would
be my practice to approach and ask the court to correct
that. And I obviously did not in this case. [RT
Certification Proceedings 11/01/2002, pp. 241-242.]
Counsel for appellant objected on the grounds that the procedure being used
to correct the record was improper. (RT Certification Proceedings 11/01/2002, p.
242.) The trial court and appellate counsel engaged in the following colloquy:
The Court: Anything further, either side has?
Mr. Lathrop: I just want to register an objection to the taking of any

type of testimony from Mr. Brougham concerning what
his recollection or standard practice is on this matter
99
because to the extent that these corrections require
looking into counsel's memory to clear what happened,
it's not a proper procedure to do at this point. So I
would object.
The Court: I don't know that there needs to be a great deal of

formality.
Mr. Lathrop: I'd just like to mention what Mr. Brougham has
mentioned here at 2952.
The Court: I'm aware of it. It's an absolute mistake by the court
reporter, as clear as it can be, as are these others.
Mr. Lathrop: We're looking at lines 16 through 19 on page 2952

where it says, “You must not decide separately” --
The Court: I would never read it that way. I never did. The
written instruction, I guarantee, didn't say that. That's
why I'm correcting it because it's erroneous and it is
not appropriate to have an erroneous record go up.
I'm as sure of that as I am that I'm sitting here
breathing today. I'll put it that way. So regardless of
Mr. Brougham's recollection or not, frankly, people
can make mistakes, people do misspeak, and I do on
occasion, but I didn't on that occasion.
What I did was read the jury instructions. And
errors - are sometimes made such as when the Court
used the word “criminal” and it came out crime
natural. And I guarantee that the court didn't sit up
there and say “crime natural activity.” It's just not
something that would come out of my mouth.
“Bound” versus “bond.”
Mr. Lathrop: This isn't a grammatical error.
The Court: It is an error nonetheless, counsel. That's an error and

the court is about to correct it over your objection. [RT
Certification Proceedings 11/01/2002, pp. 242-243.]
100
The court ordered the reporter’s transcript corrected to strike the word “not”
from the sentence, “You must not decide separately each special circumstance
alleged in this case.” (RT Certification Proceedings 11/01/2002, pp. 243-244.)
The relevant portion of the certified transcript reads, “You must decide separately
each special circumstance alleged in this case.” (RT 2952.)
B. THE TRIAL JUDGE’ S CHANGE TO THE REPORTER’ S TRANSCRIPT OF

A MATERIAL MATTER THAT WAS NEITHER AMBIGUOUS NOR
CONTRADICTED BY THE RECORD, NOR WAS A GRAMMATICAL
ERROR, BY TAKING TESTIMONY FROM THE PROSECUTOR AND BY
REFERRING TO HIS OWN MEMORY OF THE TRIAL PROCEEDINGS
SUBVERTED THE PROPER RECORD CORRECTION PROCESS AND
THEREBY DEPRIVED APPELLANT OF DUE PROCESS OF LAW AND THE
RIGHT TO A FULL AND ACCURATE RECORD ADEQUATE FOR
APPELLATE REVIEW
Appellant recognizes that when the trial court determines that the record is
incorrect it must order the reporter to correct it. (Williams v. Davis (1946) 27
Cal.2d 746, 753; Rules 35.2(b).) The fact that trial counsel may have previously
reviewed the record and either requested corrections or indicated that it was correct
neither forecloses appellate counsel from requesting additional corrections nor
does it relieve the court from making corrections. (§ 1240.1, subd. (e)(2); Rules
35.1(d), 35.2(a), (b).)
Finally, the trial court’s unilateral correction of a material matter in the
reporter’s transcript that was not shown by the record to be an accurate correction.
Although the standard CALJIC instruction omits the word “not” (CALJIC No.
101
8.80.1), and the trial judge stated that he read the language of the standard CALJIC
instruction, people frequently mis-speak. Understandably, the trial judge admitted
he is not immune from this common phenomenon. (RT Certification Proceedings
11/01/2002, p. 243.) Moreover, there is no indication in the record that the court
reporter had on other occasions erroneously inserted the word “not” in any
sentence when preparing the reporter’s transcript. Finally, there is no indication in
the record that the court reporter who transcribed the trial court’s reading of the
jury instructions felt that there was an error in transcription. Accordingly, the trial
court’s conclusion, reached years after the event, that there was an error in
transcription is entirely speculative. The correction of the record based on
insufficient evidence – here, speculation – deprived appellant of due process of
law. (See Jackson v. Virginia, supra, 443 U.S. at p. 318; Moore v. Parke (7 th Cir.
1998) 148 F.3d 705, 708; Mikes v. Borg (9 th Cir. 1991) 947 F.2d 353, 360-361;
Summit v. Blackburn (5 th Cir. 1986) 795 F.2d 1237, 1244.)
Further the procedure used by the trial judge to reconstruct the record –
considering the testimony of the prosecutor and referring to his own recollection of
the events, was erroneous. Although the trial court has the authority, indeed the
duty, to correct the record (Williams v. Davis, supra, 27 Cal.2d at p. 753),
appellant has not covered any authority permitting the trial court to make a
material change to the reporter’s transcript of an unambiguous matter in a manner
102
not supported by the record but, instead, only supported by speculation. The trial
judge’s change to the reporter’s transcript, striking the word “not,” is a material
change in the reporter’s transcript that is analytically indistinguishable from the
inclusion in the record of “unreported matter,” which is subject to record
settlement proceedings, not unilateral change. (See People v. Gzikowski (1982) 32
Cal.3d 580, 585, fn. 2 [settled statement of “oral proceedings” includes settlement
of “unreported matter, the contents of which may be useful on appeal”].) Further
supporting this conclusion is the principle that the rules authorizing settlement,
augmentation, and correction of the record are intended to ensure that the record
transmitted to the reviewing court preserves and conforms to the proceedings
actually undertaken in the trial court. (See, e.g., People v. Pinholster (1992) 1
Cal.4th 865, 922 [settled statement of unreported bench conferences between court
and counsel]; People v. Wright (1990) 52 Cal.3d 367, 401, fn. 6 [settled statement
of unreported bench discussion between court and juror]; People v. Holloway
(1990) 50 Cal.3d 1098, 1116 [settled statement of unreported in-chambers
discussion between court and counsel].) Here, there can be no such assurance that
the certified record conforms to the proceedings actually undertaken in the trial
court because the trial judge by-passed proper record settlement procedures and
unilaterally changed the record in a speculative manner.
103
The process for settling the record is governed by rules 7 and 32.2. (Marks
v. Superior Court (2002) 27 Cal.4th 176, 197.) 14 This Court admonished that
[s]trict compliance with rule 7 assumes particular significance in

capital cases by avoiding questions as to the sufficiency of the
appellate record [citations] and obviating delays if insufficiencies
arise after briefing. [Citation omitted.] Collaterally, proper
settlement of the record also preserves a death penalty defendant’s
interests with respect to the investigation of potentially meritorious
habeas corpus claims. [Ibid.]
This Court set forth the proper procedure for settling the record:
First, the appellant shall “serve and file an application for

permission to prepare a settled statement,” which “shall be verified
and shall contain a statement of the facts or a certificate of the clerk
showing that a reporter’s transcript cannot be obtained.” (Rule
36(b); see also rule 4(e).)
Second, the judge “shall decide the application ..., and, if the
showing is sufficient, shall make an order permitting the preparation
of a settled statement” of the oral proceedings in question. (Rule
36(b).)
14
Since the Marks decision, rules 4 and 7 have been repealed and re-
adopted with changes, and rule 36 has been repealed and replaced with new rule
32.3. As relevant to the rule citations in Marks, as quoted herein below, former
rule 4(e), regarding the procedure for agreed or settled statement when
proceedings cannot be transcribed, is now rule 4(g). Former rule 7(b), regarding
the time to file, and contents of, the statement, remains rule 7(b). Former rule
7(d), regarding settlement, preparation, and certification, is now rule 7(c).
Former rule 36(b), regarding service and filing of an application for permission to
file a settled statement, is now rule 32.3(a); the rule regarding order and proposed
statement on an application for permission to file a settled statement is now
contained in rule 32.3(b); and, the rule regarding serving and filing the settled
statement is now contained in rule 32.3(c).
104
Third, upon such an order, the appellant must “serve and file a
condensed statement [thereof] in narrative form ....” (Rule 7(b); see
rule 36(b).) ....
Fourth, the respondent may “serve and file proposed

amendments” to the proposed settled statement. (Rule 7(b).)
Fifth, the superior court’s clerk “shall set a time ... for
settlement of the statement” and “give ... notice to all parties of the
time set ....” (Rule 7(d).)
Sixth, at this hearing “the judge who tried the case” “shall
settle the statement and fix the time within which the appellant shall
engross it as settled.” (Rule 7(d).)
Seventh, “the appellant shall engross the statement in

accordance with the order of the judge,” and “serve and file the
engrossed statement.” (Rule 7(d).)
Eighth, if the respondent thereafter serves and files timely

objections, the judge must determine whether the statement was
prepared in accordance with the order; if not, changes are required.
(Rule 7(d).)
Finally, once the statement is determined to conform to the

order, the judge then certifies it. (Rule 7(d).) [Id. at p. 193.]
Here, the procedure used by the trial judge did not conform in any manner
to the requirements of rule 7, and thus was erroneous under Marks v. Superior
Court, supra, 27 Cal.4th 176.
105
C. APPELLANT WAS PREJUDICED BY THE TRIAL COURT’ S ERRONEOUS
CHANGE TO THE REPORTER’ S TRANSCRIPT BECAUSE THE ORIGINAL
REPORTER’ S TRANSCRIPT CONTAINED AN UNSETTLED MATERIAL
AMBIGUITY CONCERNING THE MANNER IN WHICH THE SPECIAL
CIRCUMSTANCE ALLEGATIONS SHOULD BE CONSIDERED
Prior to certification for accuracy, the reporter’s transcript read, in pertinent
part:
You must not decide separately each special circumstance

alleged in this case. If you cannot agree as to both of the special
circumstances but can agree as to one, you must make your finding
as to the one upon which you do agree.
In order to find the special circumstance alleged in this case to
be true or untrue, you must agree unanimously.
You will state your special finding as to whether this special
circumstance is or is not true on the form that will be supplied. [RT
2952-2953.]
In the first paragraph above, the first sentence informed the jury that they
were to decide the two special circumstance allegations jointly. The second
sentence informed them that they were to decide each special circumstance
allegation separately. This ambiguity was never clarified in any other instructions.
Accordingly, the jury was left to guess whether they should consider the special
circumstances jointly or separately. In other words, under the instructions given,
the jury reasonably may have concluded that it could return a true finding on the
special circumstance allegations if it found either one, but not both, to be true.
Appellant is entitled to separate findings on each special circumstance allegation.
(See People v. Hughes (2002) 27 Cal.4th 287, 376-377.) Since it is impossible to
106
determine whether the jury appropriately considered the special circumstance
allegations, the true findings must be reversed. (See People v. Sanders (1990) 51
Cal.3d 471, 520-521.)
///
107
VIII.
THE GUILT AND PENALTY PHASE INSTRUCTIONS DILUTED THE

PROSECUTION’S BURDEN OF PROOF BEYOND A REASONABLE
DOUBT IN VIOLATION OF APPELLANT’S STATE AND FEDERAL
CONSTITUTIONAL RIGHTS TO DUE PROCESS, JURY TRIAL, A
UNANIMOUS JURY VERDICT, TO PRESENT A DEFENSE, AND TO
RELIABLE, INDIVIDUALIZED AND NON-ARBITRARY GUILT AND
SENTENCING DETERMINATIONS (CAL. CONST., ART. I, §§ 7, 15, 17;
U.S. CONST., 5 TH , 6 TH , 8 TH , AND 14 TH AMENDS.)
A number of the jury instructions given during the guilt and penalty phases
misled the jury regarding the standard of proof of beyond a reasonable doubt and
impermissibly lightened the prosecution’s burden of proof. These instructions
violated appellant’s state and federal constitutional rights to due process, jury trial,
a unanimous jury verdict, to present a defense, and to reliable, individualized and
non-arbitrary guilt and sentencing determinations (Cal. Const., Art. I, §§ 7, 15, 17;
U.S. Const., 5 th , 6 th , 8 th , and 14 th Amends.).
The jury was instructed that appellant was “presumed to be innocent until
the contrary is proven” and that “[t]his presumption places upon the People the
burden of proving him guilty beyond a reasonable doubt.” (CALJIC No. 2.90; RT
2927-2928.) The court instructed the jury:
A defendant in a criminal action is presumed to be innocent

until the contrary is proved, and in case of a reasonable doubt
whether his guilt is satisfactorily shown, he is entitled to a verdict of
not guilty. This presumption places upon the People the burden of
proving him guilty beyond a reasonable doubt. Reasonable doubt is
defined as follows: it is not a mere possible doubt; because
everything relating to human affairs is open to some possible or
108
imaginary doubt. It is that state of the case which, after the entire
comparison and consideration of all the evidence, leaves the minds
of the jurors in that condition that they cannot say they feel an
abiding conviction of the truth of the charge. [RT 2927-2928.]
While this same reasonable doubt instruction, standing alone, has been
found to be constitutional (Victor v. Nebraska (1994) 511 U.S. 1 [114 S.Ct. 1239;
127 L.Ed.2d 583]; People v. Sandoval (1992) 4 Cal.4th 155, 185-186), in
combination with the other instructions and the prosecutor’s argument, it was
reasonably likely to have led the jury to convict appellant on proof that did not
meet the “beyond a reasonable doubt” standard. (See In re Winship (1970) 397
U.S. 358, 363-364 [90 S.Ct. 1068; 25 L.Ed.2d 368]; but see People v. Heard
(2003) 31 Cal.4th 946, 979-980 [rejecting challenge to CALJIC Nos. 2.00, 2.01];
People v. Crew (2003) 31 Cal.4th 822, 847-848 [rejecting challenge to CALJIC
Nos. 2.00, 2.01, 8.83, 8.83.1].)
The jury was given four interrelated instructions that discussed the
relationship between proof beyond a reasonable doubt and circumstantial evidence,
and addressed proof of specific intent and/or mental state: CALJIC Nos. 2.01
[Sufficiency of Circumstantial Evidence – Generally], 2.02 [Sufficiency of
Circumstantial Evidence to Prove Specific Intent or Mental State], 8.83 [Special
Circumstance – Sufficiency of Circumstantial Evidence – Generally], and 8.83.1
[Special Circumstance – Sufficiency of Circumstantial Evidence to Prove
Required Mental State]. (RT 2917-2919, 2954-2956.) Except for the fact that they
109
were directed at different evidentiary points, each of these instructions informed
the jury, in essentially identical terms, that if one interpretation of the evidence
“appears to you to be reasonable and the other interpretation appears to be
unreasonable, you must accept the reasonable interpretation and reject the
unreasonable.” (Ibid.) This repeated directive was contrary to the requirement
that appellant may be convicted only if guilt is proved beyond a reasonable doubt.
(In re Winship, supra, 397 U.S. 358; Jackson v. Virginia, supra, 443 U.S. at p.
339.) Telling jurors that they “must” accept a guilty interpretation of the evidence
as long as it “appears to be reasonable,” is inconsistent with proof beyond a
reasonable doubt, and allows a finding of guilt based on a degree of proof below
that required by the due process clause. (Cage v. Louisiana (1990) 498 U.S. 39
[111 S.Ct. 328; 112 L.Ed.2d 339.) Additionally, these four instructions required
the jury to draw an incriminatory inference when such an inference appeared to be
“reasonable.” Because the jurors were told they “must” accept such an
interpretation, the instructions operated as an impermissible mandatory conclusive
presumption of guilt upon a finding that an interpretation of the evidence that
pointed to guilt “appears to be reasonable.” (See Sandstrom v. Montana (1979)
442 U.S. 510, 515 [99 S.Ct. 2450; 61 L.Ed.2d 39].) During the penalty phase trial,
the jury was told to refer to these same instructions. (RT 3352.)
110
During closing summation to the jury during the guilt phase trial, the
prosecutor reinforced these instructions by arguing that the burden of proof beyond
a reasonable doubt was a simple matter of determining what was reasonable to
believe. The prosecutor argued:
Now I would like to begin today by discussing the standard of

proof.
The standard of proof, as we all know by now, is proof
beyond a reasonable doubt.
What is proof beyond a reasonable doubt?
Some attorneys, and I’m sure Mr. Clark will not do this, will
try to get you to believe that their reasonable doubt standard of proof
is a threshold that can never be crossed.
To the contrary, as you have heard throughout the flow of jury
instructions, the reasonable doubt standard of proof is a common
sense standard by which you folks as jurors decide what is
reasonable to believe versus what is unreasonable to believe.
Accept the reasonable and reject the unreasonable. [RT
2969.] [¶]
Proof beyond a reasonable doubt.
Accept the reasonable. Reject the unreasonable.
Now there is one instruction, one jury instruction, that the
court read that I think is probably as helpful as any other instruction
and understanding the reasonable doubt standard of proof.
That instruction which we refer to as a single witness
instruction defines my job as a prosecutor in proving a case to you
jurors beyond a reasonable doubt.
This jury instruction stands for the proposition that as a
prosecutor, I have only one task and that is to put on one witness
without any corroboration and ask you folks to make a credibility
call.
One witness’ testimony without corroboration from
fingerprints, videotape, long lines of other witnesses coming through
the doors, one witness who you believe as to all the essential facts of
the crime is enough proof under California law to hold a defendant
accountable for the crimes. [RT 2970-2971.]
111
CALJIC Nos. 2.01, 2.02, 8.83 and 8.83.1 also misled the jury by stating that
if there were two reasonable interpretations, one pointing to guilt and the other to
innocence, the jury should accept the one pointing to innocence. (RT 2917-2919,
2954-2956.) The prosecution’s burden of proof beyond a reasonable doubt means
that a defendant is not required to put forward any theory of innocence, or to
explain the incriminating evidence in order to be entitled to an acquittal.
Accordingly, a juror can appropriately conclude that only incriminatory inferences
“appear” to be reasonable, and yet also conclude that a conviction is unwarranted
because there are insufficient incriminating inferences to establish guilt beyond a
reasonable doubt. This set of instructions had the effect of reversing this burden of
proof by requiring the jury to find appellant guilty unless he came forward with
evidence explaining the incriminatory evidence put forth by the prosecutor. Given
the State’s reliance on circumstantial evidence to prove appellant’s guilt, the
erroneous instructions were prejudicial with regard to guilt, the special
circumstances, and the death verdict.
In what appears to be an issue of first impression, the court also
prejudicially erred by instructing the jury in the language of CALJIC No. 2.61
[Defendant May Rely on State of the Evidence] because CALJIC No. 2.61
contains a latent ambiguity which can allow the jury to convict when the
112
prosecution has proved some – but not all – of the elements of the offense. The
court instructed the jury:
In deciding whether or not to testify, the defendant may choose to

rely on the state of the evidence and upon the failure, if any, of the
People to prove beyond a reasonable doubt every essential element
of the charge against him. No lack of testimony on defendant's part
will make up for a failure of proof by the People so as to support a
finding against him on any such essential element. [RT 2927.]
This instruction goes to the heart of the burden of proof that rests with the
prosecution: the prosecution must prove each and every essential element of the
charge against the defendant.
However, CALJIC No. 2.61 is ambiguous – it can reasonably be read to
reverse the burden of proof in favor of the prosecution. The ambiguity arises in
the phrase, “failure ... to prove ... every essential element ....”
An instruction that a not guilty verdict is required if the People fail to prove
every essential element can mean: (1) vote not guilty if every element is unproved;
or (2) vote not guilty if at least one element is not proved. The latter interpretation
is correct; the former is unconstitutional.15
15
Similarly, the statement “he failed to prove every statement,” can
mean: (1) some statement was not proved; or (2) every statement was not proved.
And the statement “he failed to do everything that was asked of him,” could
mean: (1) he didn’t do any thing that was asked of him or (2) he didn’t do some
of the things that were asked of him.
113
The latent ambiguity of CALJIC No. 2.61 becomes apparent in the
following hypothetical dialogue:
Juror No. 1: Did the prosecutor fail to prove every element of the crime?
Juror No. 2: No, not at all. She proved some of the elements of the crime.
However, since the jury instruction as given is ambiguous, it is impossible
to know whether the jury voted guilty because they believed that the People had
proven every essential element of the charge, or simply because they believed that
the People had proven some of the essential elements of the charge (i.e., had not
failed to prove every essential element of the charge.) This is constitutionally
impermissible. (In re Winship, supra, 397 U.S. at p. 364 [the due process clause of
the Fourteenth Amendment “protects the accused against conviction except upon
proof beyond a reasonable doubt of every fact necessary to constitute the crime
with which he is charged”].)
Where an ambiguous instruction is given, as here, the error will be
reversible if the instruction so infected the trial that the resulting conviction
violates due process. The test for determining a violation of due process in this
context is whether there is a reasonable likelihood that the jury misconstrued or
misapplied the words of the instruction in a way that violates the federal
Constitution. (Estelle v. McGuire, supra, 502 U.S. at p. 72 [following Boyde v.
California (1990) 494 U.S. 370, 380 [110 S.Ct. 1190; 108 L.Ed.2d 316]; People v.
114
Clair (1992) 2 Cal.4th 629, 662-663 [federal test is proper for examining
instructions under California law: applicable test for resolving a challenge to an
ambiguous jury instruction is whether there is a reasonable likelihood that the jury
misapplied or misconstrued the instruction], cert. denied, 506 U.S. 1063 (1993);
People v. Kelly (1992) 1 Cal.4th 495, 525, cert. denied, 506 U.S. 881.)
A “reasonable likelihood” standard is not a “reasonable probability” test.
Under the latter standard, a defendant would have to show that it is more probable
than not that error occurred. (People v. Watson, supra, 46 Cal.2d at p. 836.)
However, under a “reasonable likelihood” test, the defendant’s burden of
persuasion need not reach this level. Rather, it should be sufficient to show “a
significant but something-less-than-50 percent likelihood” that the jury was
misinstructed. (People v. Howard (1987) 190 Cal.App.3d 41, 48.)
Here, it is reasonably likely that the jury misapplied or misconstrued the
challenged instructions in a manner that significantly lowered the quantum of
proof necessary to sustain appellant’s convictions and the death verdict. CALJIC
Nos. 2.01, 2.02, 2.61, 2.90, 8.83 and 8.83.1 go to the heart of the burden of proof.
Four of these instructions (CALJIC Nos. 2.01, 2.02, 8.83, and 8.83.1) informed the
jury that they “must” accept a guilty interpretation of the evidence as long as it
“appears to be reasonable.” Although proof may appear “reasonable,” it may
nonetheless fall well below the requisite proof of beyond a reasonable doubt. (See
115
In re Winship, supra, 397 U.S. 358; Jackson v. Virginia, supra, 443 U.S. at p.
339.) By repeatedly phrasing guilt in terms of evidence that “appears to be
reasonable,” however, there is a reasonable likelihood that the jury construed these
instructions as defining the quantum of proof necessary for its verdict. In other
words, the standard of “proof beyond a reasonable doubt” was lowered to proof by
what “appears to be reasonable.” Reversal of the guilt and death verdicts is
required.
///
116
IX.
APPELLANT’S EXCLUSION FROM PROCEEDINGS IN THE MIDST OF

GUILT-PHASE DELIBERATIONS ON THE JURY’S NOTE
REQUESTING INFORMATION – A CRITICAL STAGE OF THE
CRIMINAL PROCEEDINGS – PREJUDICIALLY DENIED APPELLANT
THE SIXTH AMENDMENT RIGHT TO CONFRONTATION, THE RIGHT
TO DUE PROCESS UNDER THE FOURTEENTH AMENDMENT, THE
RIGHT TO BE PERSONALLY PRESENT WITH COUNSEL “IN A
CRIMINAL CAUSE” UNDER ARTICLE I, SECTION 15, OF THE
CALIFORNIA CONSTITUTION, AND HIS STATUTORY RIGHT TO BE
PRESENT AT TRIAL
The jury began guilt-phase deliberations during the morning session on
February 24, 1998. (RT 3022.) Appellant agreed at that time to have trial defense
counsel make the decision whether his personal presence would be required if
there were further trial proceedings during deliberations, including proceedings “if
we answer a question or give readback or whatever.” (RT 3027.)
On February 25, 1998, outside of the presence of appellant and the jury (RT
3032-3035), the court and counsel discussed a tentative response to the following
note returned by the jury: “What time was the suspect identified by the first two
witnesses? Immediately after, that evening or the next morning?” (RT 3033.)
Counsel agreed that the response to the question would be, “the next morning.”
(RT 3035.) Defense counsel waived appellant’s presence for the reading of the
response, provided that “it does not go any further than that ....” (RT 3035-3036.)
The jury was then reconvened in open court outside appellant’s presence.
(RT 3036.) The following colloquy occurred:
117
The Court: We got your note. Let me read it.
Once again, counsel and the Court discussed it.
Your question is: what time was the suspect identified
by the first two witnesses immediately after? That
evening or the next morning?
Signed by the foreperson dated February 24th.
When you say first two witnesses, you mean the
first two civilian witnesses from over at the video
incident?
Juror No. 8: In the first incident. Yes.
The Court: All right. Counsel have conferred and the answer is
the next morning. Am I correct, gentlemen?
Mr. Brougham: Yes.
Mr. Clark: Yes.
The Court: The next morning.
Juror No. 8: Okay. The question, again, is what time the next
morning.
The concern is about the lapse of time in
questioning the witnesses and whether there was
maybe a problem in recalling the events as they
occurred because there was so much time involved, as
I understand the question.
There was a memory lapse question.
The Court: I don't know -- I don’t want to know what you guys are
doing. If you have another question, put it in writing
and we will do our best to answer it. We have
answered this one. If you have another one, fill out a
form and I will keep counsel standing by here. Let’s
do it that way rather than just ad hoc.
Juror No. 8: Okay. [RT 3036-3038.]
118
Juror No. 8 then requested ten minutes to discuss the matter with the other
jurors. (RT 3038.) The jury resumed deliberations and then fourteen minutes later
were reconstituted in open court in the presence of the trial judge and counsel, but
outside of appellant’s presence. The court asked Juror No. 8, “What do you need.”
(RT 3039.) Juror No. 8 stated that the jury did not have any further questions and
that counsel did not have to be kept waiting any longer. The jury then resumed
deliberations. (RT 3039-3040.)
Preliminarily, appellant recognizes that a defendant may waive personal
presence at critical stages of the trial. (People v. Jackson (1996) 13 Cal.4th 1164,
1209-1210; Campbell v. Wood (9 th Cir. 1994) (en banc) 18 F.3d 662, 671-672
[holding defendant’s absence from jury impanelment not unconstitutional where
defendant knowingly and voluntarily waived right to be present], cert. denied, 511
U.S. 1119 (1994).) Appellant’s waiver, however, did not extend to the colloquy
between the court and Juror No. 8 concerning the nature of the question.
Appellant verbally waived his presence to the extent waived by trial defense
counsel. (RT 3027.) Defense counsel was explicit when he told the court that
appellant’s presence was being waived only to the extent of the three-word
response (i.e., “the next morning”) to the jury’s question. (RT 3035-3036.)
Every defendant has a fundamental right to be present at every stage of the
trial. (Illinois v. Allen (1970) 397 U.S. 337, 338 [90 S.Ct. 1057; 25 L.Ed.2d 353].
119
The right of presence derives from the Confrontation Clause of the Sixth
Amendment and the Due Process Clauses of the Fifth and Fourteenth
Amendments. (United States v. Gagnon (1985) (per curiam) 470 U.S. 522, 526
[105 S.Ct. 1482; 84 L.Ed.2d 486].) The Sixth Amendment to the United States
Constitution guarantees to every criminal defendant the right to be confronted with
the witnesses against him. From this, the Supreme Court has inferred a right of
physical presence in the courtroom. (Lewis v. United States (1892) 146 U.S. 370.)
The constitutional right extends to all phases of a criminal trial proper (Pointer v.
Texas (1965) 380 U.S. 400), particularly when evidence is adduced. (United
States v. Gagnon (1985) 470 U.S. 522.) Indeed, “[o]ne of the most basic of the
rights guaranteed by the Confrontation Clause is the accused’s right to be present
in the courtroom at every stage of his trial.” (Illinois v. Allen, supra, 397 U.S. at p.
338; accord United States v. Gagnon, supra, 470 U.S. at p. 526; see also Lewis v.
United States, supra, 146 U.S. at p. 372 [“A leading principle that pervades the
entire law of criminal procedure is that, after indictment, nothing shall be done in
the absence of the prisoner”]. Moreover, “[t]he presence of a defendant is a
condition of due process to the extent that a fair and just hearing would be
thwarted by his absence, and to that extent only.” (United States v. Gagnon, supra,
470 U.S. at p. 526 (internal quotation omitted); see United States v. McCoy (7 th
Cir. 1993) 8 F.3d 495, 497.)
120
The fundamental right of every defendant to be present at the trial
proceedings also is guaranteed by our California Constitution. (People v. (Sergio)
Ochoa (2001) 26 Cal.4th 398, 433-434; Cal. Const. art. I, §§ 7, 15.) Further, a
statutory right to be present is created in Penal Code section 997, subdivision
(b)(1), which provides that “the accused shall be present ... during those portions
of the trial when evidence is taken before the trier of fact ... [and] at all other
proceedings unless he or she shall, with leave of court, execute in open court, a
written waiver of his or her right to be personally present ....” Furthermore, section
1043, subdivision (a), recites in part that “[e]xcept as otherwise provided in this
section, the defendant in a felony case shall be personally present at the trial.”
The oral proceedings identified above occurred during trial – a critical stage
of the criminal proceedings. (People v. Wright (1990) 52 Cal.3d 367, 402.) The
proceedings took place outside of appellant’s presence and, therefore, violated his
constitutional and statutory right to be personally present at all “critical stages” of
the proceedings. (U.S. Const. amends. VI, XIV; Cal. Const., art. I, §§ 7, 15; §§
977, subd. (b), 1043; see United States v. Rosales-Rodriguez (9 th Cir. 2002) 289
F.3d 1106, 1109-1110 [delivery of supplemental instruction to a jury is a “critical
stage” of the prosecution, at which the defendant’s right to be present applies].)
The violation of appellant’s right to be present at all critical stages of the
criminal proceedings, amounting to federal constitutional error, requires reversal
121
of appellant’s convictions unless it can be demonstrated that the error is harmless
beyond a reasonable doubt. (Rushen v. Spain (1983) 464 U.S. 114, 117-120 [104
S.Ct. 453; 78 L.Ed.2d 267]; People v. Hogan (1982) 31 Cal.3d 815, 850; see
Chapman v. California, supra, 386 U.S. at pp. 20-21.)
The prosecution will not be able to prove that the exclusion of appellant
from the trial proceedings on February 25, 1998 was harmless beyond a reasonable
doubt. After answering the jury’s question by responding, “The next morning,”
Juror No. 8 immediately requested further clarification stating, “The question,
again, is what time the next morning. The concern is about the lapse of time in
questioning the witnesses and whether there was maybe a problem in recalling the
events as they occurred because there was so much time involved, as I understand
the question. There was a memory lapse question.” (RT 3037-3038.) The
question went to the heart of appellant’s defense – misidentification. (Ante, pp.
19-26.) Juror No. 8’s response to the court made clear that the court and counsel
misinterpreted the original question (i.e., the response formulated by counsel was
non-responsive). The jury continued deliberations, but then within a few minutes
reconvened in open court, again outside of appellant’s presence, and told the court
that they had no further questions. The jury’s original question thus was never
answered by assistance from the parties, and appellant was not present to assist in
122
ensuring that the jury did not abrogate their responsibility to critically resolve the
issue of identification.
The prejudice inherent in appellant’s absence during this critical stage of
the criminal proceedings cannot be gainsaid. In United States v. Canady (2 nd Cir.
1997) 126 F.3d 352, for example, in the context of a bench trial where the district
court reserved decision on the case and subsequently mailed the verdict to the
defendant, the Second Circuit remanded for reading of the verdict in open court in
the presence of the defendant. The court held that failure of the district court to
announce its verdict in open court violated defendant’s right to be present at all
stages of his criminal proceedings. (Id. at p. 359.) Significantly, the court also
rejected the government’s position that defendant’s presence at the return of the
verdict would serve no useful purpose. The court emphasized that several courts
have pointed to the fact that the defendant’s mere presence exerts a “psychological
influence” on the jury and the judge; and that the announcement of the decision to
convict or acquit “is neither ‘of little significance’ nor ‘trivial’; it is the focal point
of the entire criminal trial. ... ‘While the benefits of a public trial are frequently
intangible, difficult to prove, or a matter of chance, the Framers plainly thought
them nonetheless real’.” (Id. at p. 364.)
Similarly, in Larson v. Tansy (10 th Cir. 1990) 911 F.2d 392, 394, the Tenth
Circuit held that a defendant’s absence from the delivery of the jury instructions,
123
closing arguments, and the rendition of the verdict, violated his due process rights.
The court observed that the defendant’s absence “deprived [him] of his due
process right to exert a psychological influence upon the jury, completely aside
from any assistance he might have provided to his counsel.” (Id. at p. 396. fn. 5;
see also Wade v. United States (D.C. Cir. 1971) 441 F.2d 1046, 1049-1050 [under
similar circumstances, finding violation of Fed. R. Crim. P. 43, and recognizing
the role played by the defendant in exerting psychological influence over the
jury].)
It is impossible to say that such error – the exclusion of appellant during the
discussion of guilt-phase evidence with the jury – was harmless beyond a
reasonable doubt. (Chapman v. California, supra, 386 U.S. 18.) Reversal of the
guilt and death verdicts is required.
///
124
X.
APPELLANT’S FEDERAL CONSTITUTIONAL RIGHTS WERE

VIOLATED WHEN THE TRIAL COURT INSTRUCTED THE JURY
DURING VOIR DIRE IN THE LANGUAGE OF CALJIC NO. 17.41.1 –
THE DISAPPROVED “JUROR SNITCH” INSTRUCTION
The trial court instructed the jury during voir dire in the language of
CALJIC No. 17.41.1,16 the recently disapproved juror snitch instruction requiring
jurors to report each other for perceived misconduct during deliberations. (RT
2213-2214.) The trial court admonished the prospective jurors during voir dire, as
follows:
If any juror for whatever reason cannot or will not follow the
law, it is the obligation of that juror and each juror to let the court
know so that we can, if necessary, get somebody in there that can.
It is not appropriate deciding the case based on things,
evidence not received, things that the person knows about the scene,
for example, or anything of that nature.
But the court will not be able to do anything about it unless
somebody tells the court that. [RT 2213-2214.]
The Supreme Court of the United States has not handed down a decision on
the constitutionality of CALJIC No. 17.41.1 or a similar jury instruction requiring
jurors to report misconduct. Recently, however, this Court reviewed CALJIC No.
16
At the time of appellant’s trial, CALJIC NO. 17.41.1 provided:
“The integrity of a trial requires that jurors, at all times during their deliberations,
conduct themselves as required by these instructions. Accordingly, should it
occur that any juror refuses to deliberate or expresses an intention to disregard
the law or to decide the case based on [penalty or punishment, or] any [other]
improper basis, it is the obligation of the other jurors to immediately advise the
Court of the situation.”
125
17.41.1 and found that it did not violate a defendant’s Sixth Amendment right to a
jury trial because the constitutional right does not require “absolute and
impenetrable secrecy for jury deliberations in the face of an allegation of juror
misconduct,” or “constitute[] an absolute bar to jury instructions that might induce
jurors to reveal some element of their deliberations.” (People v. Engelman (2002)
28 Cal.4th 436, 443.) Nonetheless, this Court exercised its supervisory power and
directed that CALJIC No. 17.41.1 not be given in future trials due to the potential
to lead members of the jury to “shed the secrecy of deliberations” and to “draw the
court unnecessarily into delicate and potentially coercive exploration of the subject
matter of deliberations.” (Id. at p. 447.)
The trial court’s instruction to the jury during voir dire deprived appellant
of his rights to a jury trial and due process by chilling jury deliberations because
the instruction invades the secrecy of jury deliberations and chills free and open
debate, especially by jurors who hold a minority view. Private and secret
deliberations are essential features of the jury trial guaranteed by the Sixth
Amendment. (United States v. Brown (D.C. Cir. 1987) 823 F.2d 591, 596.) The
instruction here pointedly told each juror that s/he is not guaranteed privacy or
secrecy. At any time, the deliberations might be interrupted and a fellow juror may
repeat his/her words to the judge and allege some impropriety, real or imagined,
which the fellow juror believed occurred in the jury room. The jurors are not only
126
threatened with exposure, they are also left to wonder what consequences will
follow exposure. This uncertainty will likely cause jurors to forego independence
of mind, conceal concerns they may have about the state’s evidence, and hurry
toward consensus. In short, the instruction assures the jurors that their words
might be used against them, and that candor in the jury room might be punished.
The instruction, therefore, chills speech and free discourse in a forum where “free
and uninhibited discourse” is most needed. (Attridge v. Cencorp. (2 nd Cir. 1987)
836 F.2d 113, 116.) The instruction virtually assures “the destruction of all
frankness and freedom of discussion” in the jury room. (McDonald v. Pless
(1915) 238 U.S. 264, 268.)
United States v. Thomas (2 nd Cir. 1997) 116 F.3d 606 is an exegesis on the
importance of jury secrecy and freedom of speech in the jury room. There, a juror,
unsolicited by any instruction, told the judge that another juror had expressed an
intention to disregard the law read to them. The judge interviewed the jurors
singly in chambers, and then discharged the accused juror. The defendants were
convicted. On appeal, they complained about the discharge of the juror, and the
court reversed the convictions. Although the court agreed that a juror who intends
to disregard or “nullify” applicable law is subject to dismissal, it decided that the
possibility of jury nullification is a “lesser evil” than “broad-ranging judicial
127
inquisitions into the thought processes of jurors.” (Id. at p. 623.) The Thomas
court stated the general rule that:
No one - including the judge presiding at a trial - has a “right to

know” how a jury, or any individual juror has deliberated or how a
decision was reached by a jury or juror. The secrecy of deliberations
is the cornerstone of the modern Anglo-American jury system. [Id.
at p. 618.]
Moreover, “Juror privacy is a prerequisite of free debate, without which the
decision-making process would be crippled.” (United States v. Symington (9 th Cir.
1999) 195 F.3d 1080, 1086 (citation omitted).) Free jury discourse is so important
that, as a matter of policy, post-verdict inquiry into the deliberative process is
highly disfavored. (See, e.g., United States v. Marques (9 th Cir. 1979) 600 F.2d
742, 747.)
The Supreme Court of the United States has recognized that the jury retains
the power to render a not-guilty verdict even where acquittal is inconsistent with
the law given by the court. (See Dunn v. United States (1932) 284 U.S. 390,
393-394.) The court also noted that when a jury renders a verdict at odds with
what the court would have rendered, it is usually because the jurors are serving the
very purpose for which they were called to serve. (Duncan v. Louisiana (1968)
391 U.S. 145, 157 [88 S.Ct. 1444; 20 L.Ed.2d 491].) Indeed, “the jury’s
fundamental function is not only to guard against official departures from the rules
of law, but on proper occasions themselves to depart from unjust rules or their
128
application.” (Kadish & Kadish, Discretion to Disobey: A Study of Lawful
Departures from Legal Rules, p. 53 (1973).)
Accordingly, the chilling effect that the instruction necessarily had on jury
deliberations – stifling free expression during the deliberative process, deprived
appellant of his federal constitutional rights to jury trial and due process.
///
129
XI.
THE CUMULATIVE EFFECT OF THE GUILT PHASE ERRORS IN THIS

CASE REQUIRES REVERSAL OF APPELLANT’S CONVICTIONS
Appellant’s convictions should be reversed due to the cumulative prejudice
caused by the numerous errors. As this Court recently stated, “a series of trial
errors, though independently harmless, may in some circumstances rise by
accretion to the level of reversible and prejudicial error. [Citations.].” (People v.
Hill (1998) 17 Cal.4th 800, 844.) Thus, even in a case with strong government
evidence, reversal is appropriate when “the sheer number of ... legal errors raises
the strong possibility the aggregate prejudicial effect of such errors was greater
than the sum of the prejudice of each error standing alone.” (Id. at p. 845; see also
Gerlaugh v. Stewart (9 th Cir. 1997) 129 F.3d 1027, 1043; United States v. Wallace
(9 th Cir. 1988) 848 F.2d 1464, 1475-1476; Taylor v. Kentucky (1978) 436 U.S.
478, 487, fn. 15; Phillips v. Woodford (2001) 267 F.3d 966, 985.)
In a close case which turns on the credibility of witnesses, as here, anything
which tends to discredit the defense witnesses in the eyes of the jury or to bolster
the story told by the prosecution witness, “requires close scrutiny when
determining the prejudicial nature of any error.” (People v. Briggs (1962) 58
Cal.2d 385, 404; see also United States v. Carroll (6 th Cir. 1994) 26 F.3d 1380,
1384 [curative instruction not sufficient where conflicting testimony was virtually
the only evidence]; United States v. Simtob (9 th Cir. 1990) 901 F.2d 799, 806
130
[improper vouching for a key witness’ credibility by the prosecutor in a close
case]; People v. Taylor, supra, 180 Cal.App.3d at p. 626 [error requires reversal in
“close case where credibility was the key issue”].)
In a close case ... any error of a substantial nature may require a

reversal and any doubt as to its prejudicial character should be
resolved in favor of the appellant. [People v. Von Villas (1992) 11
Cal.App.4th 175, 249.]
When a case is close, a small degree of error in the lower court should, on
appeal, be considered enough to have influenced the jury to wrongfully convict the
appellant. (People v. Wagner (1975) 13 Cal.3d 612, 621; People v. Collins (1968)
68 Cal.2d 319, 332.) Additionally, in a close case, the cumulative effect of errors
may constitute a miscarriage of justice. (People v. Buffum (1953) 40 Cal.2d 709,
726.)
Moreover, even if some of the errors raised in the preceding sections of this
brief do not alone rise to the federal level, the cumulative effect of the combination
of federal constitutional and other trial errors must still be reviewed under
Chapman. (See People v. Williams (1971) 22 Cal.App.3d 34, 58-59.) Indeed, it is
well recognized that cumulative prejudice flowing from state law error can result
in the denial of a fair trial under the federal due process clause. This can occur, for
example, “where the violation of a state’s evidentiary rule has resulted in the
denial of fundamental fairness, thereby violating due process ....” (Cooper v.
131
Sowders (6 th Cir. 1988) 837 F.2d 284, 286; see also Lincoln v. Sunn (9 th Cir. 1987)
807 F.2d 805, 814, fn. 6.)
In view of the substantial record of serious errors described above (ante, §§
I-X), the State cannot prove beyond a reasonable doubt that there is no “reasonable
possibility that [the combination and cumulative impact of the guilt phase errors in
this case] might have contributed to [appellant’s] conviction.” (Chapman v.
California, supra, 386 U.S. at p. 24.) The combined effect of the numerous and
substantial errors created cumulative prejudice. (See Donnelly v. DeChristoforo,
supra, 416 U.S. at pp. 642-643 [cumulative errors may so infect “the trial with
unfairness as to make the resulting conviction a denial of due process.”].)
Appellant’s convictions should be reversed.
///
132
PENALTY PHASE AND SENTENCING ISSUES
XII.
THE DEATH VERDICT AND APPELLANT’S SENTENCE MUST BE

REVERSED FOR LACK OF JURISDICTION BECAUSE SUBSTANTIAL
EVIDENCE WAS PRESENTED DURING THE PENALTY PHASE TRIAL
THAT APPELLANT IS DEVELOPMENTALLY DISABLED, WHICH
REQUIRED IMMEDIATE SUSPENSION OF CRIMINAL PROCEEDINGS
AND THE APPOINTMENT OF THE DIRECTOR OF THE REGIONAL
CENTER FOR THE DEVELOPMENTALLY DISABLED TO EVALUATE
APPELLANT, THEREBY DEPRIVING APPELLANT OF HIS STATE AND
FEDERAL CONSTITUTIONAL RIGHTS TO DUE PROCESS (CAL.
CONST., ART. 1, § 15; U.S. CONST., 5 TH , 8 TH & 14 TH AMENDS.)
Substantial evidence was presented during the penalty phase trial that
appellant is developmentally disabled. This evidence consists of direct, un-
rebutted testimony of Dr. Nancy Kaser Boyd that appellant is “mentally deficient”
– a disability that may have developed as a result of the very serious bacterial
infection that appellant suffered as a baby but, in any event, a developmental
condition that originated prior to appellant attaining the age of 18 years, can be
expected to continue indefinitely, and which constitutes a substantial disability for
appellant. (RT 3232-3239.)
The evidence was sufficient to raise a “suspicion” whether appellant is
developmentally disabled, thereby requiring the trial court to suspend criminal
proceedings during the penalty phase trial and appoint the director of the regional
center for the developmentally disabled, or the director’s designee, to evaluate
133
appellant. (See § 1369, subd. (a); People v. Castro (2000) 78 Cal.App.4th 1402,
1413-1414.)
Despite the evidence that appellant was developmentally disabled, the trial
court failed to suspend criminal proceedings, and it did not appoint the director of
the regional center for the developmentally disabled, or the director’s designee, to
evaluate appellant. Accordingly, the death verdicts and sentence must be reversed.
B. THE EVIDENCE PRESENTED DURING THE PENALTY PHASE TRIAL

WAS SUFFICIENT TO RAISE A “ SUSPICION” THAT APPELLANT IS
DEVELOPMENTALLY DISABLED, THEREBY REQUIRING REVERSAL OF
THE DEATH VERDICTS AND SENTENCE FOR LACK OF JURISDICTION
Whenever during the trial proceedings there is evidence that the defendant
is developmentally disabled the court is required to suspend the criminal
proceedings and appoint the director of the regional center for the developmentally
disabled to examine the defendant. (§ 1369, subd. (a); People v. Castro, supra, 78
Cal.App.4th at pp. 1413-1414.)
Section 1367, subdivision (a), provides:
A person cannot be tried or adjudged to punishment while that

person is mentally incompetent. A defendant is mentally
incompetent for purposes of this chapter if, as a result of mental
disorder or developmental disability, the defendant is unable to
understand the nature of the criminal proceedings or to assist counsel
in the conduct of a defense in a rational manner.
Section 1367, subdivision (a), thus explicitly provides that mental
incompetence may be the result of a developmental disability. Section 1369,
134
subdivision (a), mandates the appointment of the regional director to examine a
defendant when there is a “suspicion” the defendant is developmentally disabled.
Section 1369 provides, in part:
The court shall appoint a psychiatrist or licensed psychologist, and

any other expert the court may deem appropriate, to examine the
defendant. In any case where the defendant or the defendant’s
counsel informs the court that the defendant is not seeking a finding
of mental incompetence, the court shall appoint two psychiatrists,
licensed psychologists, or a combination thereof. One of the
psychiatrists or licensed psychologists may be named by the defense
and one may be named by the prosecution. If it is suspected the
defendant is developmentally disabled, the court shall appoint the
director of the regional center for the developmentally disabled
established under Division 4.5 (commencing with Section 4500) of
the Welfare and Institutions Code, or the designee of the director, to
examine the defendant. The court may order the developmentally
disabled defendant to be confined for examination in a residential
facility or state hospital. [§ 1369, subd. (a) (emphasis added).]
Welfare and Institutions Code section 4512, subdivision (a), defines
developmental disability as follows:
“Developmental disability” means a disability which originates

before an individual attains age 18, continues, or can be expected to
continue, indefinitely, and constitutes a substantial disability for that
individual. As defined by the Director of Developmental Services,
in consultation with the Superintendent of Public Instruction, this
term shall include mental retardation, cerebral palsy, epilepsy, and
autism. This term shall also include disabling conditions found to be
closely related to mental retardation or to require treatment similar to
that required for individuals with mental retardation, but shall not
include other handicapping conditions that are solely physical in
nature. [Emphasis added.]
135
(See § 1370.1, subd. (a)(1)(H) [“developmental disability” is defined to include
mental retardation]; see California Code of Regulations, title 17, section 54000, et
seq.)17
As defined in the Diagnostic and Statistical Manual of Mental Disorders,
mental retardation is a disorder “characterized by significantly subaverage
17
The California statutory provisions set forth above embody the
corollary federal constitutional principle. (People v. Castro, supra, 78
Cal.App.4th at p. 1414 [“Whether a person is competent to stand trial is a
jurisdictional question, and cannot be waived by the defendant or counsel.”],
citing People v. Pennington (1967) 66 Cal.2d 508, 521; Cooper v. Oklahoma
(1996) 517 U.S. 348, 354 [116 S.Ct. 1373; 134 L.Ed.2d 498].)
The United States Supreme Court has long recognized that trial of any
defendant who is factually incompetent is inconsistent with the central tenets of
the Constitution, and as a result, any such trial is impermissible. (Drope v.
Missouri (1975) 420 U.S. 162; Pate v. Robinson (1966) 383 U.S. 375.) This is
true for historical, functional, and systemic reasons. “The rule that a criminal
defendant who is incompetent should not be required to stand trial has deep roots
in our common-law heritage.” (Medina v. California (1992) 505 U.S. 437, 446.)
Aside from its historical antecedents, the status of competence to stand trial is
also “fundamental to an adversary system of justice,” Drope v. Missouri, supra,
420 U.S. at p. 172, because of its functional role in assuring a fair trial. Recently,
the High Court unanimously observed:
Competence to stand trial is rudimentary, for upon it
depends the main part of those rights deemed
essential to a fair trial, including the right to effective
assistance of counsel, the rights to summon, to
confront, and to crossexamine witnesses, and the
right to testify on one’s behalf or to remain silent
without penalty for doing so. [Cooper v. Oklahoma
(1996) 517 U.S. 348, 354 [116 S.Ct. 1373; 134
L.Ed.2d 498] (quoting Riggins v. Nevada (1992) 504
U.S. 127, 139-140 (Kennedy, J., concurring in the
judgment)).]
136
intellectual functioning (an IQ of approximately 70 or below) with onset before
age 18 years and concurrent deficits or impairments in adaptive functioning.”
(American Psychiatric Association, Diagnostic and Statistical Manual of Mental
Disorders (4 th ed. Text Revision 2000) (hereinafter, the “DSM-IV-TR™”), p. 39.)18
According to the DSM-IV-TR™, “[f]our degrees of severity can be specified,
reflecting the level of intellectual impairment: Mild, Moderate, Severe, and
Profound,” with mild mental retardation occurring with an IQ of “50-55 to
approximately 70.” (DSM-IV-TR™, p. 42.) The DSM-IV-TR™ further states
that “there is a measurement error of approximately 5 points in assessing IQ ....
Thus, it is possible to diagnose Mental Retardation in individuals with IQs
between 70 and 75 who exhibit significant deficits in adaptive behavior.” (DSM-
IV-TR™, pp. 41-42.)
There was substantial evidence raising a suspicion whether appellant is
developmentally disabled because the evidence that appellant is “mentally
deficient” shows that appellant suffers from a condition “closely related to mental
retardation” – i.e., appellant’s IQ score and adaptive functioning, which together
determine whether an individual is mentally retarded, fall in the borderline
18
Appellant has filed herewith a request for judicial notice of that
certain section of the American Psychiatric Association, Diagnostic and
Statistical Manual of Mental Disorders (4 th ed. Text Revision 2000) relating to
mental retardation appearing at pages 39 through 49, inclusive, of the publication,
a copy of which is attached to the request for judicial notice.
137
mentally retarded range.19 Dr. Boyd explicitly testified that appellant was
“mentally deficient.” (RT 3235.) He suffered a significant illness as a baby – a
bacterial infection with a very high fever. (RT 3235.) Dr. Boyd testified, in part:
... He had one problem with a very, very high fever

and significant illness as a baby which may be the
reason that I tested him as mentally deficient. And that
was treated at County USC. [RT 3235 (emphasis
added).]
According to Dr. Boyd, appellant’s IQ is 77, revealing a mental deficiency.
(RT 3235.) Dr. Boyd testified on direct examination, in part:
Q: Now you say that you tested him as mentally deficient. What does
that mean?
A: As far as I.Q., my test showed him at 77.
Q: And at what would percentile would that be with the general

population?
19
Penry v. Lynaugh (1989) 492 U.S. 302, 308, n. 1 [109 S.Ct. 2934;
106 L.Ed.2d 256] [“In 1992, the Association revised its classification to identify
individuals with an IQ of 75 or below as presumptively retarded.”]; Harris v.
McAdory (7 th Cir. 2003) 334 F.3d 665, 668-669 [expert testimony that defendant
had “IQ of 76, putting him on the cusp of mental retardation”]; Smith v. Mitchell
(6 th Cir. 2003) 348 F.3d 177 [expert testimony that full Scale IQ of 78 is
borderline mentally retarded]; Lorraine v. Coyle (6 th Cir. 2002) 291 F.3d 416, 429
[testimony that “petitioner was identified as emotionally mentally retarded, with
an IQ of 83, suggesting borderline mental functioning.”]; Carter v. Bell (6 th Cir.
2000) 218 F.3d 581, 593 [expert testimony that defendant’s “IQ tested in the
borderline mentally retarded range in 1992, with a score of 79]; Pickens v.
Gibson (10 th Cir. 2000) 206 F.3d 988, 997 [expert testimony that defendant “was
borderline mentally retarded, with an overall IQ of 77.”]; Tompkins v. Moore
(11 th Cir. 1999) 193 F.3d 1327, 1338 [expert testimony that defendant was “in the
borderline of mental functioning” with a full scale IQ of 79].
138
A: 94 percentile -- I’m sorry. 6 percentile which means that 94 percent
of people his age would function higher than he.
Q: Would test at higher than a 77 I.Q.?
A: Yes. [RT 3235.]
When considering the evidence showed that appellant’s IQ may be as low
as 72 (tested IQ of 77 with measurement error of approximately 5 points),
appellant tested very close to, if not at the top range of, mild mental retardation (IQ
“to approximately 70”). (DSM-IV-TR™, pp. 39, 41-42, 49.)
Dr. Boyd further testified that appellant was failing at school, receiving
failing grades (D’s and F’s) since seventh grade. (RT 3237.) Dr. Boyd testified on
direct examination, in part:
... And according to his school records that I reviewed, he never was
able to come back to an average level of functioning.
He got D’s and F’s from seventh grade on. [RT 3237.]
Dr. Boyd’s testimony also supports a strong inference that appellant has
significant impairment of adaptive or social functioning skills. Dr. Boyd explicitly
characterized appellant as “socially dysfunctional.” (RT 3238.) Appellant reacts
to his environment in a militant, forceful manner. (RT 3236-3239.)
Appellant’s diagnosed “mental deficiency” constitutes a condition “closely
related to mental retardation” because his IQ falls within the borderline mental
retardation range and his adaptive functioning level is low. Accordingly, the
testimony of Dr. Boyd raised the requisite “suspicion” whether appellant is
139
developmentally disabled because it generally described a disability which
originated before appellant attained the age of 18 and which is continuing in nature
and is a substantial disability for appellant.
Despite this evidence, however, the trial court never sua sponte raised the
issue whether appellant should be evaluated by the director of the regional center
for the developmentally disabled as required by section 1369, subdivision (a). Nor
did the trial court suspend criminal proceedings and appoint the director of the
regional center for the developmentally disabled to examine appellant. The
applicable standard of review is an objective one, not whether from the trial
judge’s independent observations there was substantial evidence sufficient to raise
a suspicion that appellant suffered a developmental disability.
[C]ase law establishes that the standard to be applied in determining

whether to suspend proceedings and evaluate the defendant’s
competency is an objective one. (People v. Tomas, supra, 74
Cal.App.3d at p. 90.) If there is sufficient doubt the defendant may
be developmentally disabled, and the suspicion appears on the record
as a matter of law, if the trial court fails to proceed in accordance
with section 1369, an abuse of discretion is shown, and a reversal is
required. (See Marks, supra, 1 Cal.4th at p. 68; People v. Aparicio,
supra, 38 Cal. 2d at p. 568.) [People v. Castro, supra, 78
Cal.App.4th at pp. 1416.]
The failure to do so where, as here, there is evidence which raises a
“suspicion” that appellant is developmentally disabled, deprives the court of
jurisdiction to proceed. (People v. Castro, supra, 78 Cal.App.4th at pp. 1413-
1414; § 1369, subd. (a).)
140
XIII.
THE DEATH JUDGMENT MUST BE REVERSED FOR A VIOLATION

OF THE CONFRONTATION CLAUSE OF THE SIXTH AMENDMENT
BECAUSE THE TRIAL COURT PREJUDICIALLY ERRED IN
PERMITTING, OVER DEFENSE OBJECTION, DEPUTY KEVIN BURKE
TO TESTIFY ABOUT THE OUT-OF-COURT STATEMENTS MADE TO
HIM BY TONY SCHMIDT IDENTIFYING APPELLANT AS THE
PERPETRATOR OF AN AX ATTACK UPON HIM
At a hearing outside the jury’s presence (Evid. Code, § 402), and over
defense hearsay objection (RT 3148), the trial court ruled admissible the proposed
testimony of Deputy Kevin Burke regarding statements Tony Schmidt made to him
identifying appellant as the perpetrator of an ax attack upon him. (RT 3149-
3150.)20
At the 402 hearing, Deputy Burke testified that on May 27, 1993, at
approximately 6:00 p.m., he received a radio call and responded to the 1100 th block
of West Sunset in Los Angeles. (RT 3139.) Upon his arrival, he was approached
by an individual (Tony Schmidt) walking towards him frantically. Schmidt was
upset, excited, and sweating. Schmidt showed Deputy Burke a cut on his right
finger. Schmidt told Deputy Burke that two people who were spray painting
graffiti on a building where he is the property manager. He told them to stop. One
20
Schmidt was unavailable at trial because, according to the
prosecution, he had died at some unspecified time prior to trial and for reasons
unrelated to the incident. (RT 3062-3063.)
141
of the individuals pulled a small hammer-size ax from his waistband, swung it, and
struck Schmidt’s finger. (RT 3140-3141.) Schmidt said he retreated into the
building then reappeared. The two individuals charged toward him, one with an ax
and one with a knife. Schmidt displayed a handgun and fired three shots into the
air. The two individuals fled on foot. (RT 3141-3142.) Deputy Burke further
testified that officers conducted a search of the area and within a few minutes
located appellant hiding in the bushes nearby. Appellant had a small hammer-size
ax in his waistband; the ax had a foot-long handle with a small metallic ax head at
one end. (RT 3145-3146.) Deputy Burke also testified that, within five minutes of
locating appellant, Schmidt identified appellant as the individual that attacked him
with the ax. (RT 3142-3143.)
The prosecution argued that Burke’s testimony reciting Schmidt’s out-of-
court statements was admissible under the spontaneous utterance exception to the
hearsay rule (Evid. Code, § 1240).21 (RT 3147-3148.) Trial defense counsel
objected on the ground that Burke’s testimony did not qualify for admission under
that exception. (RT 3148.) The trial court overruled defense counsel’s objection
stating, in pertinent part:
21
Section 1240 provides: “Evidence of a statement is not made
inadmissible by the hearsay rule if the statement: (a) Purports to narrate, describe,
or explain an act, condition, or event perceived by the declarant; and (b) Was
made spontaneously while the declarant was under the stress of excitement
caused by such perception.”
142
Under the law, spontaneous does not mean unsolicited.
The case law is pretty clear that even if questions are asked,
and sometimes lengthy questioning has been held to not deprive
statements under a spontaneous nature, so the fact that the officer is
asking questions and Schmidt is responding does not make the
statement less spontaneous.
The issue is was he under the stress of excitement as to
minimize the possibility of fabrication.
That is what 1240 is all about.
The evidence that I have is this. He was frantic. He was
upset. He was excited. He was sweating and displayed an injury
that he had just suffered.
Further, his statements seemed to possess some further indicia
of reliability due to the fact that nearby lo and behold is the
defendant with his little hatchet.
So it does not sound like it is a made-up story.
There does not seem to be any reason to bar it under 1240.
[RT 3149-3150.]
Burke subsequently testified in the presence of the jury in substance as he
had testified during the 402 hearing as set forth above. (RT 3161-3168.) The
statements were admitted for the truth of the matters asserted as the jury was not
instructed that the testimony was admitted for a limited purpose. (RT 3352-3364.)
Moreover, the jury was explicitly instructed to consider the incident (criminal
activity involving the use of force and/or violence) in making its sentencing
decision. The trial court instructed the jury that it “shall consider,” among other
things, “the presence or absence of criminal activity by the defendant, other than
the crimes for which the defendant has been tried in the present proceedings,
which involved the use or attempted use of force or violence or the express or
implied threat to use force or violence.” (RT 3355-3356.)
143
B. THE ADMISSION OF SCHMIDT’ S TESTIMONIAL STATEMENTS
AGAINST APPELLANT, WHERE APPELLANT HAD NO OPPORTUNITY
TO CROSS- EXAMINE SCHMIDT, VIOLATED APPELLANT’ S RIGHT TO
CONFRONTATION UNDER THE SIXTH AMENDMENT
In a defining case for Confrontation Clause analysis, the high court recently
held that “[w]here testimonial evidence is at issue ... the Sixth Amendment
demands what the common law required: unavailability and a prior opportunity for
cross-examination. (Crawford v. Washington (2004) ___ U.S. ___ [124 S.Ct.
1354; 158 L.Ed.2d 177] [emphasis in original].)
“The substance of the constitutional protection is preserved to the

prisoner in the advantage he has once had of seeing the witness face
to face, and of subjecting him to the ordeal of a cross-examination.
This, the law says, he shall under no circumstances be deprived of
....” (Id. at 124 S.Ct. p. 1367, citing Mattox v. United States (1895)
156 U.S. 237, 244 [39 L.Ed. 409; 15 S.Ct. 337].)
As explained below, Schmidt’s statements to Deputy Burke constituted
testimonial evidence that was inadmissible under the Sixth Amendment because,
although Schmidt was unavailable, appellant was not afforded a prior opportunity
for cross-examination.
In Crawford v. Washington, supra, on certiorari from the denial of a habeas
petition, the high court held that the state trial court’s admission into evidence of a
recorded statement made by petitioner’s wife during police interrogation violated
the Confrontation Clause because the statement, admitted for the truth of the
matter asserted therein, constituted testimonial evidence which, regardless of any
144
perceived reliability, was admissible only on a showing of unavailability and prior
opportunity to cross-examine. (Id. at 124 S.Ct. p. 1374.) Petitioner’s wife did not
testify at trial because of the state’s marital privilege. She had neither testified at
the preliminary hearing nor any other hearing at which petitioner had a prior
opportunity for cross-examination. (Id. at 124 S.Ct. pp. 1357-1358.) Accordingly,
although there was a showing of unavailability due to the marital privilege, her
statements were admitted in violation of the Confrontation Clause because
petitioner was not afforded a prior opportunity for cross-examination. (Id. at 124
S.Ct. pp. 1358, 1374.)
The high court drew a distinction between testimonial and nontestimonial
evidence, holding that the Confrontation Clause requires of the former
“unavailability and a prior opportunity for cross-examination,” but with respect to
the latter “it is wholly consistent with the Framers’ design to afford the States
flexibility in their development of hearsay law – as does Roberts,22 and as would
an approach that exempted such statements from Confrontation Clause scrutiny
altogether.” (Id. at 124 S.Ct. p. 1374.) The high court held that petitioner’s wife’s
statements, although not made under oath, were testimonial because they were
made in response to police interrogation. (Id. at 124 S.Ct. pp. 1364-1365.) Yet,
22
Ohio v. Roberts (1980) 448 U.S. 56 [65 L.Ed.2d 597; 100 S.Ct.
2531], overruled by Crawford v. Washington, supra.
145
the court refrained from providing a precise definition of “testimonial” evidence
but, rather, provided the following guidance whether a particular statement
constitutes “testimonial” evidence:
The text of the Confrontation Clause reflects this focus. It

applies to “witnesses” against the accused – in other words, those
who “bear testimony.” [Citation.] “Testimony,” in turn, is typically
“[a] solemn declaration or affirmation made for the purpose of
establishing or proving some fact.” Ibid. An accuser who makes a
formal statement to government officers bears testimony in a sense
that a person who makes a casual remark to an acquaintance does
not. The constitutional text, like the history underlying the common-
law right of confrontation, thus reflects an especially acute concern
with a specific type of out-of-court statement.
Various formulations of this core class of “testimonial”
statements exist: “ex parte in-court testimony or its functional
equivalent – that is, material such as affidavits, custodial
examinations, prior testimony that the defendant was unable to cross-
examine, or similar pretrial statements that declarants would
reasonably expect to be used prosecutorially,” [citation]
“extrajudicial statements ... contained in formalized testimonial
materials, such as affidavits, depositions, prior testimony, or
confessions,” [citation]; “statements that were made under
circumstances which would lead an objective witness reasonably to
believe that the statement would be available for use at a later trial,”
[citation]. These formulations all share a common nucleus and then
define the Clause’s coverage at various levels of abstraction around
it. Regardless of the precise articulation, some statements qualify
under any definition – for example, ex parte testimony at a
preliminary hearing.
Statements taken by police officers in the course of
interrogations are also testimonial under even a narrow standard.
Police interrogations bear a striking resemblance to examinations by
justices of the peace in England. The statements are not sworn
testimony, but the absence of oath was not dispositive. .... [Id. at 124
S.Ct. p. 1364.]
146
Here, the nature and circumstances of Schmidt’s statements demonstrate
that they are testimonial. When Schmidt spoke with Deputy Burke he was a
“‘witness[]’ against the accused ....” (See id. at 124 S.Ct. p. 1364.) Schmidt’s
statements bore testimony against appellant because they were accusatory (i.e., the
statements explicitly accused appellant of attacking him with an ax) and they were
made to a government officer (i.e. Deputy Sheriff Burke). The statements were
not merely “a casual remark to an acquaintance ....” (See ibid.) Instead, the
statements “‘were made under circumstances which would lead an objective
witness reasonably to believe that the statement would be available for use at a
later trial’” because Schmidt made the statements to a deputy sheriff engaged in his
official duties and, in part, in the presence of appellant while appellant was being
forcibly restrained by the police. These circumstances reasonably portend a
subsequent criminal proceeding. Accordingly, appellant was deprived of the Sixth
Amendment right of confrontation when the trial court admitted Schmidt’s
statements over defense objection.
C. THE JURY’ S CONSIDERATION OF SCHMIDT’ S STATEMENTS ABOUT

THE AX ATTACK WARRANTS REVERSAL OF THE DEATH JUDGMENT
BECAUSE IT CANNOT BE PROVED BEYOND A REASONABLE DOUBT
THAT THE EVIDENCE DID NOT CONTRIBUTE TO THE DEATH VERDICT
Schmidt’s statements portrayed a callous, vicious attack perpetrated by
appellant as recently as the year prior to the murder of Afable and Hau – an attack
that could have been lethal. Schmidt described an attack in which appellant
147
actually struck him with the ax, cutting his finger, and then attempted to attack him
a second time with the ax when Schmidt reappeared after going inside to retrieve
his firearm. (RT 3161-3168.)
The prosecution emphasized appellant’s violent criminal activity – and
specifically argued the evidence of the ax attack – as a basis for imposition of a
death verdict. The prosecutor argued, in rhetorical fashion:
What is the just punishment for a man who commits a series,

a string of life-threatening crimes leading up to those murders,
including attacking another human being with an ax or a hatchet
after being confronted about some graffiti .... [¶]
... The crime involving Mr. Schmit (sic) an hour – excuse me,
a year and a half prior to the murders. Mr. Schmit (sic) was attacked
with a small ax or hatchet by the defendant. Why? Mr. Schmit (sic)
had the audacity to confront the defendant about the graffiti he was
spray painting on the side of his building.
The defendant responded then as he continued to regularly
respond over the next five years: he went off on that man. He is a
ticking time bomb going off, and off, and off; and when you
consider the entire pattern of evidence, the only fair and the only just
decision is death. [RT 3372-3380.]
Schmidt’s statements about the ax attack were material evidence used by
the prosecution in support of the death verdict. The prosecution cannot now prove
beyond a reasonable doubt that the evidence of the ax attack did not contribute to
the death verdict. (Chapman v. California, supra, 386 U.S. at p. 24; Arizona v.
Fulminante, supra, 499 U.S. at p. 296.) The death judgment must be reversed.
///
148
XIV.
THE TRIAL COURT PREJUDICIALLY ERRED IN FAILING TO GIVE

FULL AND ACCURATE INSTRUCTIONS ON THE ELEMENTS OF
DEATH QUALIFICATION AND THE PROSECUTION’S BURDEN, AND
BY PLACING THE BURDEN ON THE JURY TO DETERMINE WHICH
GUILT PHASE INSTRUCTIONS APPLY AT THE PENALTY PHASE,
THEREBY REQUIRING REVERSAL OF THE DEATH VERDICT FOR A
VIOLATION OF APPELLANT’S STATE AND FEDERAL
CONSTITUTIONAL RIGHTS TO DUE PROCESS, JURY TRIAL, TO
PRESENT A DEFENSE, TO A PENALTY DETERMINATION BASED ON
ALL AVAILABLE MITIGATING EVIDENCE, AND TO A RELIABLE
DETERMINATION OF PENALTY (CAL. CONST., ART. I, §§ 7, 15, 17; U.S.
CONST., 5 TH , 6 TH , 8 TH , AND 14 TH AMENDS.)
The trial court gave biased explanations of case issues to prospective jurors
during voir dire, entirely omitting a discussion of factor (k) mitigation. (Post, §
XIV.D.) It improperly placed the burden on the jury to determine which guilt
phase instructions apply at the penalty phase, thereby leaving the jury with
inapplicable guilt-phase instructions that incorrectly stated the law on mitigating
evidence. (Post, § XIV.E.) And, it gave a supplemental instruction to the jury
during trial defense counsel’s closing summation that improperly precluded the
jury from giving full effect to the good character evidence presented by appellant
in mitigation. (Post, § XIV.F.)
The Eighth Amendment prohibition against cruel and unusual punishment
requires the individualized consideration of mitigating circumstances in
determining a sentence of death. When it comes to the imposition of the death
149
penalty, the Supreme Court has repeatedly held that justice and “the fundamental
respect for humanity underlying the Eighth Amendment” require jurors to give full
effect to their assessment of the defendant’s character, circumstances, and
individual worth. (Eddings v. Oklahoma (1982) 455 U.S. 104, 112 [102 S.Ct. 869;
71 L.Ed.2d 1]; Lockett v. Ohio (1978) 438 U.S. 586, 604-605 [98 S.Ct. 2954; 57
L.Ed.2d 973].) In Skipper v. South Carolina (1986) 476 U.S. 1, the court, quoting
Eddings, stated that the sentencer may “not be precluded from considering, as a
mitigating factor, any aspect of a defendant’s character or record and any of the
circumstances of the offense that the defendant proffers as a basis for a sentence
less than death.” (Id. at p. 4.) Thus, the capital sentencer must consider both
statutory and nonstatutory mitigating evidence. (Penry v. Lynaugh (1989) 492
U.S. 302, 317 [109 S.Ct. 2934; 106 L.Ed.2d 256].)
Considered as a whole, the trial court’s voir dire and instructions precluded
the jury from giving full effect to the evidence in mitigation and deprived appellant
of a properly guided, individualized sentencing hearing, thereby warranting
reversal of the death verdict.
150
B. THE TRIAL COURT HAS A SUA SPONTE DUTY TO CORRECTLY
INSTRUCT THE JURY ON ELEMENTS OF DEATH QUALIFICATION AND
THE PROSECUTION’ S BURDEN
The trial court has a sua sponte duty to correctly instruct the jury, and its
instructions and comments to the jury are properly reviewed on appeal without
objection below. (§ 1259;23 People v. Brown (2003) 31 Cal.4th 518, 539.) 24
C. STANDARD OF REVIEW
The standard of review for a claim that a sentencing instruction is
ambiguous is “whether there is a reasonable likelihood that the jury has applied the
challenged instruction in a way that prevents the consideration of constitutionally
relevant evidence.” (Boyde v. California (1990) 494 U.S. 370, 380 [110 S.Ct.
1190; 108 L.Ed.2d 316].)
23
Section 1259 provides in part: “The appellate court may also
review any instruction given, refused or modified, even though no objection was
made thereto in the lower court, if the substantial rights of the defendant were
affected thereby.”
24
Trial defense counsel neither objected to the trial court’s voir dire
of the jury nor to the instructions given to the jury.
151
D. THE TRIAL COURT GAVE BIASED EXPLANATIONS OF CASE ISSUES TO
PROSPECTIVE JURORS DURING VOIR DIRE BY PRESENTING
MITIGATING FACTORS SOLELY IN TERMS OF MATTERS THAT MIGHT
MITIGATE THE SEVERITY OF THE OFFENSE OR THAT MIGHT
MITIGATE PUNISHMENT, BUT ENTIRELY OMITTED A DISCUSSION OF
FACTOR ( K) MITIGATION
During voir dire of the first panel of prospective jurors (and in the presence
of the entire panel), the trial court defined aggravating and mitigating factors as
follows:
Aggravating factors are things that make the crime even more
heinous than it normally would be, for example. Maybe particular
vulnerability of a victim, for example, and things about the
offender’s background that might make his conduct even more
blameworthy; a life of crime, a life of violence. Things of that
nature.
Mitigating factors would be things that would make the crime
less severe, might mandate a less severe or point you toward a less
severe punishment. For example, if a person had some sort of
organic brain damage that was demonstrated to exist or if it was
demonstrated that the person was of tender years at the time he or
she committed the qualifying offenses or the person was acting under
the substantial domination of an older person, things like that, that
wouldn't be defenses. It wouldn’t be excuses, certainly, for
committing the crime of murder. But they might be things the jury
would find mitigating, might cause the jury to consider life without
parole as opposed to the death penalty.
These are just examples; not at all an exhaustive list. But
that’s how you would go about your duties. If you get to a penalty
phase, you would be asked to weigh, each of you conscientiously,
aggravation and mitigation and determine which penalty is
appropriate in that situation. [RT 1567-1568.]
152
The trial court defined mitigating factors in terms of matters that might
mitigate the severity of the offenses or that might mitigate the punishment. The
trial court misleadingly failed to include a discussion of factor (k) mitigation.
Factor (k) mitigation allows the trier of fact to consider “any other
circumstance which extenuates the gravity of the crime, even though it is not a
legal excuse for the crime.” (§ 190.3, subd. (k).) Consistent with Lockett v. Ohio,
supra, 438 U.S. 586, this section allows the trier of fact to consider any mitigating
evidence of the defendant’s character or record which the defendant offers.
(People v. Easley (1983) 34 Cal.3d 858, 876 [adopting Lockett]) The phrase is an
open-ended, catch-all provision, allowing the jury’s consideration of any
mitigating evidence, limited only by relevance. (People v. Mickey (1992) 54
Cal.3d 612, 692-693 [holding 8 th and 14 th amendments require that sentencer not
be precluded from considering as mitigating factor any aspect of defendant’s
character or record and any of circumstances of offense, as long as it is relevant],
cert. denied, 506 U.S. 819 (1992).) To avoid any misunderstandings, the
sentencing court must inform the jury that it can consider as a mitigating factor any
other circumstance or aspect of the defendant’s character or record that the
defendant proffers as a basis for sentence less than death. (People v. (Lester)
Ochoa (1998) 19 Cal.4th 353, 455-456.)
153
During voir dire of the second panel of prospective jurors (and in the
presence of the entire panel), the trial court defined aggravating and mitigating
factors as follows:
Phase 2, as you might know, is called a penalty phase or

penalty trial. It involves the same jury, same judge, same counsel.
We just continue along. After the verdict in phase 1, we’ll have a
penalty trial. At that phase, the prosecution and defense have the
opportunity to put on additional evidence to give the jury additional
evidence, although they don't have to, but typically they will.
The evidence is slightly different in a penalty phase than what
you're apt to hear in a guilt phase. At the penalty phase, the focus
shifts away from proving whether the defendant is guilty or not
guilty and focuses more on the defendant and his background and his
character and things of that nature. Although, that's not all you're
going to hear, necessarily, if you hear a penalty phase, but that's --
the predominant focus now becomes prior activities of the defendant,
good and bad.
The D.A., for example, in a penalty phase might put on
evidence of prior offenses or prior acts of violence, for example.
That's, you know, typically done if such exist. And the defense in a
penalty phase might put on the other type of evidence; things that the
defendant has done during his life that are good or beneficial things.
Those are the types of issues that you would consider in a penalty
phase. [¶]
So that would be the choice that may confront a jury in this
case. The way you arrive at a decision and penalty in the state of
California is by a weighing process. You would be asked to weigh
aggravating factors in the case versus mitigating factors. Most of
you know what those words mean. If you don't, they mean good
things and bad things. Aggravation and mitigation; the good and the
bad.
An aggravating factor is something that makes the crime even
more enormous or grave than it normally would be, or an
aggravating factor may be something about the offender that makes
his conduct more blameworthy and more deserving of the death
penalty, such as a long history of violence, let's say, or prior felony
convictions. Things like that.
154
A mitigating factor is just the opposite. It’s something good
about the defendant, or at least something that might tend to
ameliorate or mitigate the punishment in some fashion, although not
constituting a defense.
For example, if the evidence showed that a person was very
young at the time he or she committed a homicide, the jury might
consider that some mitigation. If the evidence showed that a person
had some sort of injury to the brain or some sort of a psychological
defect or abnormality, the jury might consider that to be a mitigating
factor. If this person acted under the substantial domination of a
much older and stronger person, they might consider that for
mitigation. Those are the sorts of things the jury would be asked to
weigh. And the court will give you a rather exhaustive list, if we
ever get to that point. [RT 1599-1601.]
Subsequently, during voir dire of Prospective Juror No. 3 (also conducted in
the presence of the entire panel), the trial court gave a similar explanation of
aggravating and mitigating factors: “You have to weigh the bad things, serious
things about the case, versus the mitigating factors, the things that make the crime
perhaps less blameworthy or good things about the defendant’s background.” (RT
1893.)
The trial court defined mitigating factors in terms of (1) “good” things that
appellant had done and (2) matters relating to the offense. The court’s use of the
analogy of “good and bad” to define “mitigating and aggravating factors,” and its
focus on mitigating factors relating to the offense, misleadingly omitted a
discussion of factor (k) mitigation – i.e. relevant life influences that adversely
affected appellant. (See People v. (Lester) Ochoa, supra, 19 Cal.4th at p. 456.)
155
E. THE TRIAL COURT IMPROPERLY PLACED THE BURDEN ON THE JURY
TO DETERMINE WHICH GUILT PHASE INSTRUCTIONS APPLY AT THE
PENALTY PHASE, AND THEREBY LEFT THE JURY TO CONSIDER
INSTRUCTIONS THAT ERRONEOUSLY INFORMED THE ANALYSIS OF
MITIGATION EVIDENCE
When instructing the jury at penalty-phase, the trial court instructed the jury
to consider some unspecified guilt-phase jury instructions when making its
sentencing determination. The court instructed the jury, in part:
.... I am not going to reread to you the guilt phase instruction

packet. There is no need to do so. And a great many of those
instructions simply no longer apply, you don’t need to concern
yourself with them. However, you may refer to the guilt phase
instructions for definitions such things as attempted robbery for
example will be mentioned in these instructions, it was also
mentioned in the guilt phase so you may if you need to refresh your
recollection as to what that charge entails, for example you should
take a look at the guilt phase instructions. Likewise, the term
reasonable doubt is used in a portion I will read you now, reasonable
doubt is defined in the guilt phase instruction so if you need to refer
back to that you may.
Likewise, credibility of witnesses so forth, we had witnesses
testify, both phases so when you get to judging credibility again guilt
phase instruction 2.20 touched on that. Many of them will apply. If
you need further clarification whether one does or does not apply, let
us know, send a note out and we will certainly deal with it. Primary
difference was at the guilt stage I told you all not to consider penalty
or punishment and I’ve told you not to consider sympathy and things
of that nature. And now those instructions no longer apply because
of the penalty phase you are obviously to consider penalty and
punishment and the sympathetic factors set forth and shown by the
evidence are not to be ignored by the jury in the phase. That will be
the primary difference. [¶]
You must determine what the facts are from the evidence
received during the entire trial unless you are instructed otherwise.
You must accept and follow the law that I state to you. Disregard all
156
instructions given to you in other phases of this trial if they conflict
with anything stated in these instructions. [RT 3352-3354.]
These instructions first informed the jury that “a great many” of the guilt-
phase instructions do not apply, but failed to specify precisely which ones did not
apply. (RT 3352.) The instructions next informed the jury that it could refer to the
guilt-phase instructions for “definitions” of certain terms, like “attempted robbery”
and “reasonable doubt.” (RT 3352.) The instructions then informed the jury that
“[m]any of ... [the guilt-phase instructions] will apply.” (RT 3352-3353.) The
instructions explicitly referenced CALJIC No. 2.20. Perhaps recognizing the
confusing nature of the instructions, the court then instructed the jury that if it was
confused as to which of the penalty-phase instructions applied to the penalty
determination then it should “send a note out [during deliberations] ....” (RT
3353.)
The guilt-phase instructions included the following admonition:
You must not be influenced by mere sentiment, conjecture,

sympathy, passion, prejudice, public opinion or public feeling. Both
the People and the defendant have a right to expect that you will
conscientiously consider and weigh the evidence, apply the law, and
reach a just verdict regardless of the consequences. [RT 2912-2913.]
The admonition to reach a verdict uninfluenced by sympathy for appellant
and “regardless of the consequences” prevented the jury from giving full effect to
the mitigating evidence presented by appellant. Although it is true that the jury
may not be swayed by mere sympathy (Victor v. Nebraska (1994) 511 U.S. 1, 13
157
[127 L.Ed.2d 583, 114 S.Ct. 1239]), in assessing the penalty phase evidence to
reach a just verdict in view of the consequences the jury may properly consider the
sympathy it feels for the defendant as the result of the character evidence presented
in mitigation. (See People v. (Lester) Ochoa, supra, 19 Cal.4th at p. 456.)
Instead of leaving the jury to guess which guilt-phase instructions apply to
the penalty-phase trial, the trial court should have instructed in the language of
CALJIC No. 8.84.1, which tells the jury to disregard guilt-phase instructions.25
Indeed, recognizing the confusion implicit in the manner in which the trial court
instructed here, long before appellant’s trial this Court admonished: “To avoid any
possible confusion in future cases, trial courts should expressly inform the jury at
the penalty phase which of the instructions previously given continue to apply.”
25
CALJIC No. 8.84.1 provides:
You will now be instructed as to all of the law
that applies to the penalty phase of this trial.
You must determine what the facts are from
the evidence received during the entire trial unless
you are instructed otherwise. You must accept and
follow the law that I shall state to you. Disregard all
other instructions given to you in other phases of this
trial.
You must neither be influenced by bias nor
prejudice against the defendant, nor swayed by public
opinion or public feelings. Both the People and the
Defendant have a right to expect that you will
consider all of the evidence, follow the law, exercise
your discretion conscientiously, and reach a just
verdict.
158
(People v. Babbitt (1988) 45 Cal.3d 660, 719, fn. 26.) More recently, this Court
“strongly caution[ed] trial courts not to dispense with penalty phase evidentiary
instructions in the future. The cost in time of providing such instructions is
minimal, and the potential for prejudice in their absence surely justifies doing so.”
(People v. Carter (2003) 30 Cal.4th 1166, 1222.)
F. THE TRIAL COURT’ S SUPPLEMENTAL INSTRUCTION TO THE JURY

DURING TRIAL DEFENSE COUNSEL’ S CLOSING SUMMATION
IMPROPERLY PRECLUDED THE JURY FROM GIVING FULL EFFECT TO
THE GOOD CHARACTER EVIDENCE PRESENTED BY APPELLANT IN
MITIGATION
Trial defense counsel argued during closing summation for a verdict of life
without the possibility of parole by reminding the jury of appellant’s family’s love
for him and urging the jury to make a decision for life that would not increase the
hurt already felt by them, especially considering that the jury’s decision could not
bring life to those killed. (RT 3392-3393.) Trial defense counsel argued, in part:
I also believe that both that the families involved here and
there are three, there's the Hau family, there's the Afable family and
there's the Ramirez family. If you think the Ramirez family isn't
hurt, you haven't been thinking. I see in your sympathetic
consideration no reason why after putting two families through this I
know of no mother, as a matter of fact you heard it yesterday, when
Mrs. Romero is still in denial. She's not unusual in that fashion.
Even though I am a member of a mother/son relationship, they are
estranged. And I can understand how they are. So it's not that
Gerardo hurt other people, he hurt his family, too. I see no reason to
increase that, particularly when you can't bring Renaldo back, or you
can't bring Eugene back. There is no way.
The way the sheriff handles things hopefully it will get better.
I'm not here to dump on the sheriff, there is enough people dumping
159
on him already with respect to getting health care for the inmates, or
I don't know but the way that you solve how the sheriff behaves, how
these incidents – [RT 3392-3393.]
The trial court sua sponte interrupted defense counsel, supplementing its
previous instructions to the jury as follows:
Ladies and gentlemen, your job on this case is to – and I will

continue to do so if necessary, although I don't like to do so in a
death penalty case. Your job is to weigh the aggravation, weigh the
mitigation, arrive at a penalty in that fashion. That is without regard
to the effect that that (sic) decision will have on anyone other than
this defendant. So you can't vote for death to make the victim's
family better. You can't hold for life to make the defendant's mother
feel better. That's not what this is about. This is not about the
sheriff's department or sending a message if we will hear that. [RT
3393-3394.]
The trial court’s supplemental instruction that the jury’s function is to
“arrive at a penalty ... without regard to the effect that that (sic) decision will have
on anyone other than this defendant” was erroneous. (RT 3393.) Although the
effect of execution on the defendant’s family is not a factor in mitigation (People
v. (Lester) Ochoa, supra, 19 Cal.4th at p. 456), their love for him is relevant as
evidence of his character, to the extent that it shows that something about him can
inspire such love. (Id.) Appellant presented irrefutable evidence in mitigation that
his family loved him dearly. (Ante, pp. 36-39.) Accordingly, this was strong
character evidence supporting a verdict of life. The instruction was erroneous and
unbalanced because it precluded the relevant consideration of appellant’s family’s
response to his loss should the jury return a verdict of death.
160
G. REVERSAL OF THE DEATH VERDICT IS WARRANTED BECAUSE IT IS
REASONABLY LIKELY THAT THE JURY APPLIED THE INSTRUCTIONS
GIVEN TO IT IN A WAY THAT PREVENTED FULL AND FAIR
CONSIDERATION OF CONSTITUTIONALLY RELEVANT MITIGATION
EVIDENCE - I.E., APPELLANT’ S CHARACTER EVIDENCE
Although the trial court instructed the jury on factor (k) mitigation (RT
3357-3358), during trial the court repeatedly misguided the jury about the proper
application of factor (k) mitigation. During voir dire, the trial court educated
prospective jurors about 1) the weighing of aggravating and mitigation evidence
and 2) the type of mitigation evidence that it could consider. (RT 1567-1568,
1599-1601, 1893.) It did so, however, in a manner that was biased in favor of a
death verdict by omitting a discussion of factor (k) mitigation. (Ante, § XIV.D.)
The trial court then improperly placed the burden on the jury to determine which
guilt phase instructions apply at the penalty phase. In doing so, the jury was left to
consider inapplicable guilt-phase instructions that erroneously described the jury’s
sentencing decision as one that should not be influenced by sympathy and one that
should be rendered “regardless of the consequences.” (Ante, § XIV.E.) Finally,
the trial court erroneously instructed the jury during defense counsel’s closing
summation that it should render its verdict without regard to the effect that the
decision has on anyone other than appellant. (Ante, § XIV.F.)
In a capital case, the court must clearly and explicitly instruct the jury about
mitigating circumstances. “The jury must receive clear instructions which not only
161
do not preclude consideration of mitigating factors, Lockett, but which also
‘guide[] and focus[] the jury’s objective consideration of the particularized
circumstances of the individual offense and the individual offender.’” (Spivey v
Zant (5 th Cir. 1981) 661 F. 2d 464, 471, quoting Jurek v Texas (1976) 428 U.S.
262, 274 [96 S.Ct. 2950; 49 L.Ed.2d 929]), cert. denied, 458 U.S. 111 (1982).)
Appellant presented substantial evidence in mitigation concerning the life
influences that caused him to act as he did, and he presented strong evidence of his
good character shown by the fact that he engendered in his family and friends a
great love for him. Appellant presented the testimony of family and friends,
including Rosalba Romero, Maria Sosa, Angelina Romero, Martin Uitz and
Yenissen De Santiago. (Ante, pp. 36-39.) Through their testimony, appellant
presented strong, uncontradicted mitigating evidence of several life influences that
adversely affected him. Rosalba Romero described how the family was evicted
from their home and how, in the process, appellant lost all of his life possessions,
including his prized trophies. (RT 3206-3209.) She described the gang-infested
area in Los Angeles where appellant was raised, and the stabbing that appellant
suffered when he was viciously attacked by a group of people in the alley directly
behind their home. (RT 3209-3210.) She also described the devastating impact on
him from the loss of his close, brother-like friend, Joseph Sosa, to cancer ((RT
3211-3212), from the lengthy hospitalization of his mother (who also was ill with
162
cancer) (RT 3205, 3221), and the special burden he carried from the time he was
11 years of age – being the oldest child and having to care for his five siblings (RT
3222). Maria Sosa testified about her son’s illness with cancer, the positive
support that appellant provided, and the close friendship that her son shared with
appellant. (RT 3258-3259.) Angelina Romero described a serious illness that
appellant suffered when he was a child, her extended absence from the home due
to her own illness, and the many friendships that appellant formed with others.
(RT 3263-3266.) Martin Uitz and Yenissen De Santiago both testified about
appellant’s good behavior at the Boys and Girls Club he attended and about the
profound adverse impact that the death of Joseph Sosa had on appellant. (RT
3272-3280.) Accordingly, the evidence presented by the prosecution in
aggravation (ante, pp. 26-34) was closely balanced with the substantial evidence
presented by appellant in mitigation (ante, pp. 34-39).
The closeness of the case on the issue of sentencing choice also is shown by
the length of the jury’s deliberations. The jury deliberated for six and one-half
hours over the span of 3 days, commencing their deliberations on March 4, 1998,
at 2:30 p.m. and not reaching a verdict until March 6, 1998 at 10:00 a.m. (CT
2785-2786, 2798; RT 3401, 3548.) The length of the deliberations here indicate
that the choice of penalty was closely balanced. (See People v. Cardenas (1982)
31 Cal.3d 897, 907 [lengthy jury deliberations “are an indication that the issue of
163
guilt is not ‘open and shut’ and strongly suggests that errors ... are prejudicial”;
deliberations extending six hours]; People v. Ogunmola (1985) 39 Cal.3d 120,
124; Lawson v. Borg (9th Cir. 1995) 60 F.3d 608, 612 [nine hours of deliberations
“deemed protracted”].)
Juror comprehension of the sentencing instruction is a federal constitutional
guarantee. (See Boyde v. California, supra, 494 U.S. at p. 380.) Here, the death
verdict should be reversed because there is a reasonably likelihood that the jury
applied the instructions in a way that prevented the consideration of
constitutionally relevant evidence consisting of 1) mitigation concerning the life
influences that caused appellant to act as he did and 2) evidence of his good
character shown by the fact that he engendered in his family and friends a great
love for him.
///
164
XV.
THE TRIAL COURT’S DENIAL OF APPELLANT’S TIMELY REQUEST

FOR ALLOCUTION VIOLATED APPELLANT’S FEDERAL
CONSTITUTIONAL RIGHT TO DUE PROCESS (U.S. CONST., 5 TH , 8 TH &
14 TH AMENDS.), THEREBY REQUIRING REVERSAL OF THE DEATH
VERDICT AND SENTENCE
In the afternoon on March 3, 1998, during the penalty phase trial, the trial
court advised appellant of his right to testify under oath. The court explained that
if appellant chose to testify, then he would be subject to cross-examination by the
prosecutor. (RT 3284.) Following the explanation of the right to testify, the court
asked appellant whether he understood, and the following colloquy occurred:
The Defendant: Yeah. Will I be able to -- would I be able to testify

after I find out the verdict or whatever it might be?
The Court: No. That is a little late then.

You mean after they decide whether it is life in
prison or the death penalty?
The Defendant: Yes.
The Court: That is a novel approach, but no. You can’t do it that
way. No.
You have to decide well prior to that because
what happens is that all the evidence is taken and then
I instruct on the law and the attorneys argue like the
guilt phase.
So we couldn’t allow you to do that after they
had decided what it is that they are going to decide.
[RT 3285.]
165
Appellant’s request to “testify” after the jury rendered its verdict amounted
to a request for allocution 26 because it was an unequivocal request to directly
address the jury.
A capital defendant possesses a federal constitutional right to allocute.27 In
Hill v. United States (1962) 368 U.S. 424, 428 [82 S.Ct. 468; 7 L.Ed.2d 417], the
United States Supreme Court held that a sentencing judge’s failure to ask whether
defendant has anything to say before sentence is imposed, although a violation of
rule 32 of the Federal Rules of Criminal Procedure, is not an error of constitutional
dimension subject to collateral attack. (Id. at p. 428.) But the court left open the
question whether due process is violated when a defendant requests, and is denied,
the opportunity to speak. (Id. at p. 429; see also McGautha v. California (1971)
402 U.S. 183, 218-219, fn. 22 [91 S.Ct. 1454; 28 L.Ed.2d 711].)
Despite this constitutional uncertainty, the United States Supreme Court has
characterized the right to allocution as being of fundamental importance in
26
Black’s Law Dictionary defines “allocution” as “an unsworn
statement from a convicted defendant to the sentencing judge or jury in which the
defendant can ask for mercy, explain his or her conduct, apologize for the crime,
or say anything else in an effort to lessen the impending sentence. This statement
is not subject to cross-examination.” (Black’s Law Dictionary (7th ed. 1999).
27
Appellant recognizes that this Court has held that a capital
defendant has no right to allocution. (People v. Cleveland (2004) 32 Cal.4th 704,
766; People v. Davenport (1995) 11 Cal.4th 1171, 1209 [“we have repeatedly
held that a capital defendant has no right to address the penalty phase jury in
allocution”].)
166
criminal proceedings. Justice Frankfurter, writing for a plurality in Green v.
United States (1961) 365 U.S. 301, 304 [81 S.Ct. 653; 5 L.Ed.2d 670], commented
that although major changes had evolved in criminal procedure since the
seventeenth century,
None of these modern innovations lessens the need for the

defendant, personally, to have the opportunity to present to the court
his plea in mitigation. The most persuasive counsel may not able to
speak for a defendant as the defendant might, with halting
eloquence, speak for himself.
Justice Black, dissenting in the same case, commented, “A rule so highly prized
for so sound a reason for so long a time deserves to be rigorously enforced ....”
(Id. at p. 311.) Justice Harlan later characterized the right as “elementary.”
(United States v. Behrens (1963) 375 U.S. 162, 167 [84 S.Ct. 295; 11 L.Ed.2d 224]
(conc. opn.).)
Accordingly, a criminal defendant has a constitutional right to personally
address the fact finder who will pass sentence on him. (Boardman v. Estelle (9th
Cir.) 957 F.2d 1523, 1530, cert. denied, 506 U.S. 904 (1992); see also Ashe v.
North Carolina (4th Cir. 1978) 586 F.2d 334, 336, cert. denied, 441 U.S. 966
(1979); United States v. Jackson (11th Cir. 1991) 923 F.2d 1494, 1496.) In
Boardman, for example, the Ninth Circuit explicitly recognized that allocution is a
due process right guaranteed by the Constitution. (Boardman v. Estelle, supra,
167
957 F.2d at p. 1525.) Although arising in a non-capital context, the Ninth Circuit
stated:
We hold that allocution is a right guaranteed by the due process

clause of the Constitution. Our holding is limited to circumstances
in which a defendant, either unrepresented or represented by counsel,
makes a request that he be permitted to speak to the trial court before
sentencing. If the trial court denies that request, the defendant has
not received due process. [Id. at p. 1530.]
Ninth Circuit precedent thus clearly establishes that a defendant has a
constitutional right to allocute. In reaching its conclusion, the Ninth Circuit noted
that the Supreme Court’s holding in Hill v. United States (1962) 368 U.S. 424 [82
S.Ct. 468; 7 L.Ed.2d 417], which determined that allocution is not a right protected
by the United States Constitution, was limited to situations where the sentencing
judge fails to ask a defendant if he has anything to say. (Boardman v. Estelle,
supra, 957 F.2d at p. 1527.) The Ninth Circuit read Hill as “leaving open the
question of whether a defendant who asks the court to speak has a Constitutionally
guaranteed right to do so.” (Id.) The Boardman defendant specifically requested
to allocute, just as appellant did here. Accordingly, appellant’s request for
allocution rises to a constitutional dimension under Ninth Circuit precedent.
Appellant recognizes that a number of courts have read Hill as determining
that there is no constitutional right to allocution. These cases are distinguishable,
however, because they arose in a non-capital context and the courts were facing a
situation similar to that in Hill, wherein the defendant did not request to allocute.
168
(See, e.g., United States v. Li (2nd Cir. 1997) 115 F.3d 125 [citing Hill for the
proposition that allocution is not a constitutional right, but remanding for
resentencing because defendant possessed an absolute right to allocute under the
Federal Rules of Criminal Procedure]; United States v. Coffey (6th Cir. 1989) 871
F.2d 39 [holding that allocution was not required prior to resentencing defendant
for probation revocation; defendant was not offered, and did not request,
opportunity to speak]; United States v. Prince (5th Cir. 1989) 868 F.2d 1379
[finding no constitutional right to allocution where defendant did not object when
judge failed to offer defendant opportunity to speak]; United States v. Fleming
(11th Cir. 1988) 849 F.2d 568 [same]; United States v. De La Paz (5th Cir. 1983)
698 F.2d 695 [same]; Martin v. United States (10th Cir. 1962) 309 F.2d 81
[same].)
The trial court’s violation of the right of allocution merits reversal of
appellant’s death verdicts and sentence because it cannot be said that the
constitutional error was harmless beyond a reasonable doubt. (See Chapman v.
California, supra, 386 U.S. at p. 24; People v. Sengpadychith (2001) 26 Cal.4th
316, 326 [Chapman asks whether the prosecution has “prove[d] beyond a
reasonable doubt that the error ... did not contribute to” the verdict].) This is not a
case where the error can be deemed harmless because the defendant received the
minimum statutory sentence. (See United States v. Beckett (3d Cir. 2000) 208 F.3d
169
140, 148 [addressing a violation of the right of allocution, the defendant was not
entitled to automatic resentencing because he was not prejudiced by the denial in
light of the fact that “he was sentenced to the [Sentencing] Guidelines minimum”
sentence]; United States v. Lewis (4th Cir. 1993) 10 F.3d 1086.) Appellant
received the maximum sentence – death. Given appellant’s right to an
individualized sentence in his capital trial (Walton v. Arizona (1990) 497 U.S. 639,
652 [110 S.Ct. 3047; 111 L.Ed.2d 511]), and the fundamental importance of the
right of allocution (Green v. United States, supra, 365 U.S. at p. 304), the Attorney
General simply cannot sustain its burden of proving that the error was harmless
beyond a reasonable doubt. Accordingly, reversal of the death verdicts and
sentence, and remand for resentencing, is warranted.
///
170
XVI.
THE DEATH VERDICT MUST BE SET ASIDE ON THE GROUND THAT

THE TRIAL COURT ERRED IN DENYING THE AUTOMATIC MOTION
TO MODIFY THE DEATH VERDICT BECAUSE THE TRIAL COURT
FAILED TO DISCHARGE ITS DUTY TO INDEPENDENTLY REWEIGH
THE AGGRAVATING AND MITIGATING EVIDENCE AND TO
INDEPENDENTLY DETERMINE WHETHER IMPOSITION OF THE
DEATH PENALTY IS PROPER, THEREBY VIOLATING PENAL CODE
SECTION 190.4, SUBDIVISION (E), AND APPELLANT’S STATE AND
FEDERAL CONSTITUTIONAL RIGHTS TO DUE PROCESS, TO
PRESENT A DEFENSE, TO A PENALTY DETERMINATION BASED ON
ALL AVAILABLE MITIGATING EVIDENCE, AND A RELIABLE
DETERMINATION OF PENALTY (CAL. CONST., ART. I, §§ 7, 15, 17;
U.S. CONST., 5 TH , 8 TH , AND 14 TH AMENDS.)
The automatic motion to modify the jury’s death verdict was heard on May
1, 1998. Trial defense counsel urged the trial court to grant the motion on the
following grounds: (1) the death penalty in California is imposed in an inconsistent
manner in terms of individual culpability – some with substantially greater
culpability receive life while some with substantially less culpability receive death,
thereby warranting life for appellant; (2) appellant’s youthful age of 19 years at the
time of the offenses in the instant case; and, (3) appellant’s IQ of 77, reflecting a
diminished mental capacity and thus reduced individual culpability. (RT 3561-
3562.)
The prosecution argued that the motion should be denied because appellant
(1) murdered two individuals, and attempted to murder a third individual, during a
171
short 3-hour time span, (2) engaged in extensive criminal activity pending trial,
and (3) suffered a prior conviction for attempted robbery. (RT 3562-3563.)
The trial court denied the motion, stating:
Well, Mr. Clark, your comments, some are well taken, but it is
not the function of this court to try to right all wrong and try to look
at every death penalty case I have heard of and see where Mr.
Romero fits in.
Whether a Ted Kaczinsky should or should not have gotten
the death penalty is far beyond this court's control. And I am sure
there were reasons for the actions taken in that case. In that case
both sides were ably represented and I don’t think that case went to
trial.
As far as I recall, the last minute they were plea bargaining
the case out. [¶]
... One would think, yes, that that [sic] would not have been
an unreasonable resolution for that case that Mr. Kaczinsky perhaps
gotten a different outcome.
I see what you are saying if that is your position.
But the issue here is that I can't focus on those cases but as to
Mr. Romero.
What are the aggravating factors and mitigating factors and
was the jury’s rendition of the death verdict inappropriate in his case.
That is all I can focus on.
That is plenty.
The sad fact for your client is that there is no mitigation, with
one exception that the court can see and that is his age.
I will give him that.
19, you are right.
If you were my age at age 19, you would have needed my
parents’ permission to do almost everything.
I was clueless as to almost everything and most 19 year olds
are.
But things have changed and you see a situation now where
people 14, 15, 16, 18, et cetera, have evolved into predators at a very
young age for whatever reason. And Mr. Romero clearly fits into
that category.
These offenses were horrible in the extreme.
172
One would think that after committing one homicide one
might take a rest and pause a bit and consider the gravity and
enormity of what had taken place.
But apparently the whole thing appealed to Mr. Romero
because what the D.A. correctly points out is that that same night,
within hours, Mr. Romero is at another location with a weapon,
attempted to rob people that don’t have any more than Romero has, a
bunch of guys drinking beer in a car, or whatever they were doing,
and Romero thought he would take whatever property they had,
apparently, and in the course of that killed one of them and darn near
killed another one.
That fellow had a gun placed close to his head and a weapon
discharged and he survived. And thankfully he did, but no thanks to
Mr. Romero.
So a guy who would go out, 19 or not, in one night and
execute two people for no real good reason, the first one I guess your
standard gang felony, enough that somebody is in a different group
and Romero walked up on him, an unarmed, helpless individual in a
video store, as I recall, and put the gun up to his head in a brazen,
cold-blooded manner that one could imagine and ended this kid’s
life.
A kid probably not too different from Romero.
He had the right, nonetheless, to be with us and to live.
And Mr. Romero decided that he would put an end to that
kid’s life.
I have heard no excuse or justification or reason for it.
Being 19 gets him something, but when you weigh this and
you put this on the scale and ask yourself how mitigating is that, and
I would have to say the mitigation is quite insubstantial given the
gravity of the crime and given his behavior while at county jail, this
assault we heard about with this poor fellow who found himself
unlucky to be in a cell with Romero, I don’t know if you have seen a
guy beaten any worse than that in your days around the criminal
courts, perhaps so, but I recall the pictures of that individual.
Again, what did he do other than to have the misfortune of
crossing paths with your client who apparently took great pleasure in
torturing him.
Beating him as bad as they could for several hours until this
guy’s head looked like a pumpkin, as far as I can recall.
173
That was one of the many incidents that your client was
involved in including his prior conviction.
I think he was on probation and he got a probated sentence on
a 211 and was out on probation at the time that he committed these
two murders.
So it is an uphill battle and one that you are not going to be
able to win here to convince me that there is any substantial
mitigation to in any way hamper with the finding of that jury.
Their finding was amply justified by the record. The
mitigation is insubstantial.
The aggravation great.
And he deserves what they came up with as far as the court
can see, 19 or not.
Now that being said, your motion for modification is denied.
[RT 3563-3567.]
The trial court’s ruling on an automatic motion to modify the death verdict
is subject to “independent review,” meaning that “we simply review the trial
court’s determination after independently considering the record ....” (People v.
Koontz (2002) 27 Cal.4th 1041, 1090, citing People v. Berryman (1993) 6 Cal.4th
1048, 1106.)
C. THE TRIAL COURT FAILED TO CONSIDER RELEVANT MITIGATING

EVIDENCE, IT CONSIDERED INTERCASE PROPORTIONALITY IN AN
ARBITRARY, UNBALANCED MANNER AGAINST APPELLANT, AND ITS
COMMENTS REFLECT DEFERENCE TO THE JURY VERDICT RATHER
THAN THE REQUIRED INDEPENDENT PENALTY DETERMINATION
Pursuant to section 190.4, subdivision (e), a capital defendant is
automatically deemed to have applied for a sentence modification. Section 190.4
provides that the judge hearing that application
174
shall review the evidence, consider, take into account, and be guided
by the aggravating and mitigating circumstances referred to in
Section 190.3, and shall make a determination as to whether the
jury’s findings and verdicts that the aggravating circumstances
outweigh the mitigating circumstances are contrary to law or the
evidence presented. [§ 190.4, subd. (e).]
Although the statute does not so state, the Court has interpreted this
subdivision to require the trial court to make an independent determination
whether imposition of the death penalty on the defendant is proper in light of the
relevant evidence and the applicable law. The trial court is required to determine
whether the verdict is adequately supported, in accordance with the weight it
believes the evidence deserves. (People v. Berryman, supra, 6 Cal.4th at p. 1105;
People v. Rodriguez (1986) 42 Cal.3d 730, 793.) Thus, in ruling on the application
for modification of the verdict, “‘the trial judge must independently reweigh the
evidence of aggravating and mitigating circumstances and determine whether, in
the judge’s independent judgment, the weight of the evidence supports the jury
verdict.’” (People v. Burgener (2003) 29 Cal.4th 833, 891, citing People v.
Rodrigues (1994) 8 Cal.4th 1060, 1196.)
1. THE TRIAL COURT FAILED TO REWEIGH THE MITIGATING

EVIDENCE PRESENTED AT TRIAL IN FAVOR OF LIFE AND THE
COURT ERRONEOUSLY FOUND THAT, EXCEPT FOR
APPELLANT’ S AGE, THERE WERE NO MITIGATING FACTORS
In ruling on the motion to modify the death verdict, the trial court stated, in
pertinent part:
175
one exception that the court can see and that is his age. [RT 3564
(emphasis added).]
Consistent with the statement that there was no mitigation evidence, except
appellant’s age (§ 190.3, subd. (I)),28 the trial court’s statement of reasons in
support of its ruling only mentioned age as a mitigating circumstance. (RT 3563-
3567.) Yet, appellant presented substantial evidence in mitigation, which was
largely uncontradicted, including (1) evidence that at the time of the offense his
capacity to appreciate the criminality of his conduct or to conform his conduct to
the requirements of law was impaired as a result of mental defect (§ 190.3, subd.
(h)) and (2) evidence of sympathetic or other aspects of appellant’s character or
record (§ 190.3, subd. (k)).
With respect to section 190.3, factor (h), Dr. Boyd testified that she tested
appellant as “mentally deficient.” (RT 3235.) Dr. Boyd further testified that
appellant’s mental deficiency may have been caused by a significant illness he
suffered as a baby – a bacterial infection with a very high fever. (RT 3235.) Dr.
Boyd testified that appellant’s intelligence quotient is 77, revealing a mental
28
It is well recognized that youth, as measured by chronological age,
may be a mitigating factor. (See e.g., Hitchcock v. Dugger (1987) 481 U.S. 393,
397 [107 S.Ct. 1821; 95 L.Ed.2d 347] [youth at the time of crime mitigating];
Jones v. Thigpen (5 th Cir. 1986) 788 F.2d 1101, 1103 [age 17]; Norris v. State
(1983) 429 So.2d 688, 690 [age 19]; Hitchcock v. State (1982) 413 So.2d 741,
747 [age 20]; People v. Osband (1996) 13 Cal.4th 622, 708-709 [age may be
considered a factor in mitigation or aggravation].)
176
deficiency. An intelligence quotient of 77 places appellant in the bottom 6% of the
population. (RT 3235.) Dr. Boyd characterized appellant as “socially
dysfunctional.” (RT 3238.) Finally, Dr. Boyd linked these mitigating
circumstances to appellant’s inability to conform his conduct to the requirements
of the law. She testified that appellant reacts to his environment in a militant,
forceful manner. (RT 3237.)
With respect to section 190.3, factor (k), Dr. Boyd’s diagnosis of appellant
as mental deficient and socially dysfunctional with a low IQ of 77 applies with
equal force as factor (k) mitigation evidence. (See People v. Weaver (2001) 26
Cal.4th 876, 987-988.) Dr. Boyd also testified about appellant’s academic failings
since seventh grade that were caused in part by the lack of necessary assistance.
(RT 3237-3238.) Moreover, from early childhood, appellant suffered serious
physical and emotional injury. In addition to the debilitating bacterial infection he
sustained as a baby, appellant was brutally attacked behind his home and stabbed
in the neck or chest with a screw driver. (RT 3206.) At 12 years of age, appellant
suffered the emotional injury of dealing with a mother diagnosed with uterine
cancer and being home without a mother for some time. (RT 3237.) At 15 years
of age, appellant’s family was evicted from their home, causing the family to live
on the streets for two weeks; appellant lost all of his personal possessions in the
eviction. (RT 3206-3208.) Appellant then suffered the loss of his close friend,
177
Joseph Sosa, to cancer (RT 3211-3212), causing appellant to become depressed,
grief stricken, and despondent. (RT 3236.) Dr. Boyd testified that these physical
and emotional injuries created a vulnerability in appellant that he coped with by
turning to violence, reacting to his environment in a militant, forceful manner.
(RT 3237-3239.) Appellant earned the love and respect of his family and friends
(RT 3205-3206, 3266, 3272-3273, 3279),29 he cared for his five siblings when
their mother was hospitalized with cancer (RT 3221-3222) he was successful in
sports, having won many trophies for his accomplishments (RT 3206-3208), and
he showed empathy and compassion toward his friend Joseph Sosa while Sosa was
dying of cancer (RT 3258-3259). Finally, Dr. Boyd testified that socially
dysfunctional individuals, especially individuals like appellant who have had a
period of positive social behavior, can be successfully treated. (RT 3239.)
The trial court’s ruling on the motion to modify the death verdict utterly
failed to consider the above-referenced section 190.3, factors (h) and (k) evidence
that appellant presented in mitigation, supporting life over death. Nor can it be
implied that the court considered this mitigation evidence from the fact that the
court heard the evidence at trial. Here, the trial court explicitly stated that there
29
People v. (Lester) Ochoa, supra, 19 Cal.4th at p. 456 [“defendant
may offer evidence that he or she is loved by family members or others, and that
these individuals want him or her to live ... because it constitutes indirect
evidence of the defendant’s character”].
178
was no mitigation other than age, thereby precluding any possibility that the trial
court faithfully discharged its duty to reweigh the mitigating evidence. This Court
has long observed in the context of capital sentencing that “the determination of
penalty, ... like the determination of guilt, must be a rational decision.” (People v.
Love (1960) 53 Cal.2d 843, 856.) The trial court’s failure to recognize the
mitigating evidence favoring life, and its concomitant failure to reweigh the
mitigating evidence, resulted in an irrational determination of penalty.
2. THE TRIAL COURT CONSIDERED INTERCASE

PROPORTIONALITY IN AN ARBITRARY, UNBALANCED
MANNER AGAINST APPELLANT
Defense counsel suggested that appellant’s death verdict is excessive when
the penalties imposed in other capital cases are considered. (RT 3561-3562.) The
trial court refused defense counsel’s suggestion to engage in intercase
proportionality review of sentences imposed in capital cases, stating, in part:
Well, Mr. Clark, your comments, some are well taken, but it is
not the function of this court to try to right all wrong and try to look
at every death penalty case I have heard of and see where Mr.
Romero fits in.
Whether a Ted Kaczinsky should or should not have gotten
the death penalty is far beyond this court’s control. And I am sure
there were reasons for the actions taken in that case. In that case
both sides were ably represented and I don't think that case went to
trial.
As far as I recall, the last minute they were plea bargaining
the case out. [¶]
... One would think, yes, that that would not have been an
unreasonable resolution for that case that Mr. Kaczinsky perhaps
gotten a different outcome.
179
I see what you are saying if that is your position.
But the issue here is that I can't focus on those cases but as to
Mr. Romero. [RT 3563-3564.]
Yet, after refusing to consider intercase proportionality in mitigation of the
death verdict, moments later when discussing appellant’s age the trial court
considered the characteristics of other offenders to weigh the mitigation evidence
presented in appellant’s case. The trial court stated, in part:
one exception that the court can see and that is his age.
I will give him that.
19, you are right.
If you were my age at age 19, you would have needed my
parents’ permission to do almost everything.
I was clueless as to almost everything and most 19 year olds
are.
But things have changed and you see a situation now where
people 14, 15, 16, 18, et cetera, have evolved into predators at a very
young age for whatever reason. And Mr. Romero clearly fits into
that category. [RT 3564-3565 (emphasis added).]
By placing appellant into “that category” of other “people 14, 15, 16, [and]
18 [years of age] ...” that have “evolved into predators ...[,]” the trial court did
precisely what it said it could not do – consider intercase proportionality.
There can be no rational basis for rejecting appellant’s argument that a
review of capital case sentencing warrants life in this case while at the same time
justifying the death verdict by placing appellant into a category of teenagers
unworthy of life. The trial court’s reasons for denying appellant’s motion to
modify the death verdict thus show that the court used intercase proportionality in
180
an arbitrary, unbalanced manner, thereby rendering the sentencing decision an
irrational one that must be set aside. (See People v. Love, supra, 53 Cal.2d at p.
856 [determination of penalty in a capital case must be a rational decision].)
3. THE TRIAL COURT’ S COMMENTS REFLECT DEFERENCE TO

THE JURY VERDICT RATHER THAN THE REQUIRED
INDEPENDENT PENALTY DETERMINATION
In ruling on the motion to modify the death verdict the trial court not only
refused to consider almost all of the mitigation evidence presented by appellant
(ante, § XVI.C.1) but repeated statements revealing deference to the jury verdict
instead of the requisite independent penalty determination. The trial court
commented, in part:
But the issue here is that I can’t focus on those cases but as to
Mr. Romero.
What are the aggravating factors and mitigating factors and
was the jury’s rendition of the death verdict inappropriate in his
case.
That is all I can focus on. [¶]
So it is an uphill battle and one that you are not going to be
able to win here to convince me that there is any substantial
mitigation to in any way hamper with the finding of that jury.
Their finding was amply justified by the record. The
mitigation is insubstantial.
The aggravation great.
And he deserves what they came up with as far as the court
can see, 19 or not.
Now that being said, your motion for modification is denied.
[RT 3563-3567 (emphasis added).]
After rejecting appellant’s suggestion of intercase proportionality review of
death sentences, the trial court stated that its duty in connection with the motion
181
was, in part, to determine whether “the jury’s rendition of the death verdict [was]
inappropriate in his case.” [RT 3564.] This articulation resembles the deferential
substantial evidence standard because it focuses on whether to uphold the
factfinder’s verdict and implies that the verdict will be upheld unless it is arbitrary
and/or unsupported by the evidence. (See People v. Burgener (2003) 29 Cal.4th
833, 892; see e.g., People v. Steele (2002) 27 Cal.4th 1230, 1249 [reviewing for
sufficiency of evidence whether evidence is “reasonable, credible, and of solid
value such that ... [the jury] could find the defendant guilty”].) The trial court’s
final comments prior to denying the motion make repeated reference to the jury’s
death verdict, which again show that the trial court was considering the motion
using a deferential, substantial evidence standard of review.
In People v. Burgener, supra, for example, when ruling on an automatic
motion to modify the death verdict the trial court stated, in part, that its duty was to
“look to see if there was evidence on each of the factors and, if so, could the jury,
based upon such evidence, find as they did?” (Id. at p. 892.) The trial court
repeatedly deferred to the jury’s death verdict, stating finally that “[t]he jury had
sufficient aggravating factors presented to them that I cannot say their verdict,
finding the aggravating circumstances outweigh the mitigating circumstances –
outweighed the mitigating circumstances, and, hence, imposing the penalty of
182
death was contrary to law or the evidence presented.” (Ibid.) Commenting on the
trial court’s deferential review, this Court stated that
[t]he record here contains no indication that the judge understood his
duty to independently reweigh the evidence and make an
independent determination whether the evidence supported the
verdict of death. Indeed, the court’s statements betray reliance on a
lesser standard of review. [Ibid.]
This Court then vacated the judgment of death and remanded for a new
hearing, ruling that the trial
court’s failure to exercise its independent judgment in reviewing an

application to modify the verdict under section 190.4, subdivision (e)
was error. [Id. at p. 893, citing People v. Bonillas (1989) 48 Cal.3d
757, 801 and People v. Cunningham (2001) 25 Cal.4th 926, 1039.]
So too must the instant death judgment be vacated and the case remanded
for a new hearing on the motion to modify the death verdict because the record
indicates that by deferring to the jury’s death verdict the trial court failed to
discharge its own duty to independently reweigh the evidence and make an
independent determination whether the evidence supported the verdict of death.
///
183
XVII.
THE DEATH VERDICT MUST BE REVERSED BECAUSE THE FAILURE

OF CALIFORNIA’S DEATH PENALTY SCHEME TO REQUIRE
WRITTEN FINDINGS AND REASONS FOR A DEATH VERDICT, AND
THE TRIAL COURT’S FAILURE TO REQUIRE SUCH WRITTEN
FINDINGS AND REASONS HERE, PREVENTS MEANINGFUL
APPELLATE REVIEW OF THE VERDICT, THEREBY DENYING
APPELLANT HIS FEDERAL CONSTITUTIONAL RIGHTS TO DUE
PROCESS AND A RELIABLE DETERMINATION OF PENALTY (U.S.
CONST., 5 TH , 8 TH , AND 14 TH AMENDS.)
California’s death penalty scheme fails to require that the jury make a
written statement of findings and reasons for its death verdict. Although this Court
has held that the absence of such a requirement does not render the death penalty
scheme unconstitutional (People v. Fauber (1992) 2 Cal.4th 792, 859), that
holding should be reconsidered as the failure to require written findings deprives a
capital defendant of his Fifth, Eighth, and Fourteenth Amendment rights to due
process and meaningful appellate review of the death verdict.
The importance of explicit findings to ensure adequate appellate review has
long been recognized by this Court. (See e.g., People v. Martin (1986) 42 Cal.3d
437, 449 [determinate sentencing requires statement of reasons]; In re Podesto
(1976) 15 Cal.3d 921, 937-938.) Thus, in a non-capital case, the sentencer is
required by California law to state on the record the reasons for the sentencing
choice. (Ibid.; § 1170, subd. (c).) The Fifth, Eighth, and Fourteenth Amendments
afford capital defendants more rigorous protections than those afforded non-capital
184
defendants. (See Monge v. California (1998) 524 U.S. 721, 732; Harmelin v.
Michigan (1991) 501 U.S. 957, 994; Herrera v. Collins (1993) 506 U.S. 390, 405
[113 S.Ct. 853; 122 L.Ed.2d 203] [“We have, of course, held that the Eighth
Amendment requires increased reliability of the process by which capital
punishment may be imposed.”].) Accordingly, the jury in a capital case is
constitutionally required to identify for the record the aggravating and mitigating
circumstances found and rejected.
Moreover, Apprendi v. New Jersey (2000) 530 U.S. 466 [120 S.Ct. 2348;
147 L.Ed.2d 435] and Ring v. Arizona (2002) 536 U.S. 584 [122 S.Ct. 2428; 153
L.Ed.2d 556] require that a jury decide unanimously and beyond a reasonable
doubt any factual issue allowing an increase in the maximum sentence.30 Without
written findings by the jury, it is impossible to know which, if any, of the
aggravating factors in this case were relied upon by the jurors in returning the
death verdict.
Moreover, this Court has long recognized the essential nature of written
findings for adequate, meaningful appellate review:
... [W]e emphasized [in In re Podesto, supra, 15 Cal.3d at p. 938]

that a requirement of articulated reasons to support a given decision
serves a number of interests: it is frequently essential to meaningful
review; it acts as an inherent guard against careless decisions,
30
But see People v. Cox (2003) 30 Cal.4th 916, 971-972 [rejecting
argument that Apprendi and Ring require jury unanimity].)
185
insuring that the judge himself analyzes the problem and recognizes
the grounds for his decision; and it aids in preserving public
confidence in the decision-making process by helping to persuade
the parties and the public that the decision-making is careful,
reasoned and equitable. [People v. Martin, supra, 42 Cal.3d at pp.
449-450.]
Explicit findings in the penalty phase of a capital case are especially critical
because of the magnitude of the penalty involved (see Woodson v. North Carolina
(1976) 428 U.S. 280, 305) and the need to address error on appellate review (see
Mills v. Maryland (1988) 486 U.S. 367, 383, fn. 15.) California capital juries have
wide discretion, and are provided little guidance, on how they should weigh
aggravating and mitigating circumstances. (Tuilaepa v. California (1994) 512
U.S. 967, 978-979.) Without a written explanation of the basis for the jury’s death
verdict, this Court cannot adequately assess prejudice, especially considering that
the trial court’s instructions on aggravating and mitigating evidence were
materially deficient (ante, § XIV).
Accordingly, the trial court’s failure to require written findings and reasons
supporting the death verdict deprived appellant of his Fifth, Eighth and Fourteenth
Amendment rights to due process and meaningful appellate review of the verdict.
The death verdict must be set aside and the case remanded for a new penalty trial
requiring explicit written factual findings supporting the verdict.
///
186
XVIII.
THE TRIAL COURT’S FAILURE TO CONDUCT INDIVIDUAL

SEQUESTERED DEATH QUALIFICATION VOIR DIRE, OVER
DEFENSE OBJECTION, VIOLATED APPELLANT’S STATE AND
FEDERAL CONSTITUTIONAL RIGHTS TO DUE PROCESS, JURY
TRIAL, EFFECTIVE ASSISTANCE OF COUNSEL, TO PRESENT A
DEFENSE, AND TO A RELIABLE DETERMINATION OF PENALTY
(CAL. CONST., ART. I, §§ 7, 15, 17; U.S. CONST., 5 TH , 6 TH , 8 TH & 14 TH
AMENDS.), REQUIRING REVERSAL OF BOTH THE GUILT PHASE
AND PENALTY PHASE DETERMINATIONS
Given the frailty of human institutions and the enormity of

the jury’s decision to take or spare a life, trial courts must be
especially vigilant to safeguard the neutrality, diversity and integrity
of the jury to which society has entrusted the ultimate responsibility
for life or death. [Hovey v. Superior Court (1980) 28 Cal.3d 1, 81.]
On June 3, 1996, appellant timely filed a motion for modified struck system
jury selection procedure, requesting that the trial court conduct individual
sequestered death qualification voir dire. [CT 325-330.] On February 6, 1998,
shortly before the start of trial, the trial court summarily denied the motion. (RT
1513.) The trial court stated:
That motion will be denied. The way I will handle --

There will be no individualized Hovey, that is, sequestered
Hovey on the case.
I will do it the following way. After we read the
questionnaires -- we will get a time qualified jury in here prior to
discussing the case with them.
Then we will hand out questionnaires and get those answers
back and read them.
Once that is done, we will come back to court and we will
take the first 12 and you will know which ones they will be. You
187
will have those questionnaires in the right order so you will know
who is coming up.
I will simply select a jury by questioning 12 jurors at a time as
to all issues germane to the case and then we will begin with the
challenges for cause and the peremptory challenge. I will do it the
old fashioned way. So his motion for modified system is denied.
[RT 1513-1514.]
The trial court thereafter failed to conduct individual sequestered death
qualification voir dire. (RT 1595-2456.) The trial court’s failure to conduct
individual sequestered death qualification voir dire violated appellant’s federal
constitutional rights to due process, trial by an impartial jury, effective assistance
of counsel, and a reliable death verdict, and his rights under California law to
individual juror voir dire where group voir dire is not practicable.
B. A VOIR DIRE PROCEDURE THAT DOES NOT ALLOW INDIVIDUAL

SEQUESTERED VOIR DIRE ON DEATH- QUALIFYING ISSUES VIOLATES
A CAPITAL DEFENDANT’ S CONSTITUTIONAL RIGHTS TO DUE
PROCESS, TRIAL BY AN IMPARTIAL JURY, EFFECTIVE ASSISTANCE
OF COUNSEL, AND A RELIABLE SENTENCING DETERMINATION
A criminal defendant has federal and state constitutional rights to trial by an
impartial jury. (U.S. Const., 6 th & 14 th Amends.; Morgan v. Illinois (1992) 504
U.S. 719, 726; Cal. Const, art. I, §§ 7, 15 & 16.) Whether prospective capital
jurors are impartial within the meaning of these rights is determined in part by
their opinions regarding the death penalty. Prospective jurors whose views on the
death penalty prevent or impair their ability to judge in accordance with the court’s
instructions are not impartial and cannot constitutionally remain on a capital jury.
188
(See Wainwright v. Witt (1985) 469 U.S. 412; Witherspoon v. Illinois 391 U.S.
510; see also Morgan v. Illinois, supra, 504 U.S. at pp. 733-734; People v.
Cummings (1993) 4 Cal.4th 1233, 1279.) Death qualification voir dire plays a
critical role in ferreting out such bias and “assuring the criminal defendant that his
[constitutional] right to an impartial jury will be honored.” (Morgan v. Illinois,
supra, 504 U.S. at p. 729, quoting Rosales-Lopez v. United States (1981) 451 U.S.
182, 188.) To that extent, the right to an impartial jury mandates voir dire that
adequately identifies those jurors whose views on the death penalty render them
partial and unqualified. (Ibid.) Anything less generates an unreasonable risk of
juror partiality and violates due process. (Id. at pp. 735-736, 739; Turner v.
Murray (1986) 476 U.S. 28, 37.) A trial court’s insistence upon conducting the
death qualification portion of voir dire in the presence of other jurors necessarily
creates such an unreasonable risk.
Reliable information regarding venire members’ views on the death penalty
is critical to choosing an impartial jury. Admittedly, this process can be time
consuming. Nevertheless, it must be done carefully and thoroughly. “Given the
important, delicate and complex nature of the death qualification process, there can
be no substitute for thorough and searching inquiry …” (State v. Williams (1988)
113 N.J. 393, 413, 550 A.2d 1172.) With many jurors, initial responses to
death-qualifying questions cannot be taken at face value. (See Gray v. Mississippi
189
(1987) 481 U.S. 648, 662-663 [“[D]espite their initial responses, the venire
members might have clarified their positions upon further questioning and
revealed that their concerns about the death penalty were weaker than they
originally stated. It might have become clear that they could set aside their
scruples and serve as jurors.”]; Wainwright v. Witt, supra, 469 U.S. at p. 425
[recognizing that a searching inquiry is often necessary before jurors can be
excluded on the basis of moral, philosophical or practical reservations regarding a
particular punishment].)
This Court has long recognized that exposure to the death qualification
process creates a substantial risk that jurors will be more likely to sentence a
defendant to death. (Hovey v. Superior Court, supra, 28 Cal.3d at pp. 74-75.)
When jurors state their unequivocal opposition to the death penalty and are
subsequently dismissed, the remaining jurors may be less inclined to rely upon
their own impartial attitudes about the death penalty when choosing between life
and death. (Id. at p. 74.) By the same token, “[j]urors exposed to the death
qualification process may also become desensitized to the intimidating duty of
determining whether another person should live or die.” (Covarrubias v. Superior
Court (1998) 60 Cal.App.4th 1168, 1173.) “What was initially regarded as an
onerous choice, inspiring caution and hesitation, may be more readily undertaken
simply because of the repeated exposure to the idea of taking a life.” (Hovey v.
190
Superior Court, supra, 28 Cal.3d at p. 75.) Death qualification voir dire in the
presence of other members of the jury panel may further cause jurors to mimic
responses that appear to please the court, and to be less forthright and revealing in
their responses. (Id. at p. 80, fn. 134.)
Given the substantial risks created by exposure to the death qualification
process, any restriction on individual and sequestered voir dire on death-qualifying
issues, including that imposed by Code of Civil Procedure section 223, which
allows death qualification in the presence of other prospective jurors and abrogates
this Court’s mandate that such voir dire be done individually and in sequestration
(Hovey v. Superior Court, supra, 28 Cal.3d at p. 80; People v. Waidla (2000) 22
Cal.4th 690, 713) cannot withstand constitutional principles of jury impartiality.
(See, e.g., Morgan v. Illinois, supra, 504 U.S. at pp. 736, citing Turner v. Murray,
supra, 476 U.S. at p. 36 [“The risk that ... jurors [who were not impartial] may
have been empaneled in this case and ‘infected petitioner’s capital sentencing [is]
unacceptable in light of the ease with which that risk could have been
minimized.’”].) Nor can such restriction withstand Eighth Amendment principles
mandating a need for the heightened reliability of death sentences. (See, e.g.,
California v. Ramos (1983) 463 U.S. 992, 998-999; Zant v. Stephens, supra, 462
U.S. 862, 884-885; Gardner v. Florida, supra, 430 U.S. 349, 357-358; Woodson v.
North Carolina, supra, 428 U.S. 280, 305.) Likewise, because the right to an
191
impartial jury guarantees adequate voir dire to identify unqualified jurors and
provide sufficient information to enable the defense to raise peremptory challenges
(Morgan v. Illinois, supra, 504 U.S. at p. 729; Rosales-Lopez v. United States,
supra, 451 U.S. at p. 188), the negative influences of open death qualification voir
dire violate the Sixth Amendment’s guarantee of effective assistance of counsel.
Put simply, juror exposure to death qualification in the presence of other
jurors leads to doubt that a convicted capital defendant was sentenced to death by a
jury empaneled in compliance with constitutionally compelled impartiality
principles. Such doubt requires reversal of appellant’s death sentence. (See, e.g.,
Morgan v. Illinois, supra, 504 U.S. at p.739; Turner v. Murray, supra, 476 U.S. at
p. 37.)
///
192
XIX.
CALIFORNIA’S DEATH PENALTY STATUTE, AS INTERPRETED BY

THIS COURT AND APPLIED AT APPELLANT'S TRIAL, VIOLATES
THE UNITED STATES CONSTITUTION
Many features of this state’s capital sentencing scheme, alone or in
combination with each other, violate the United States Constitution. Because
challenges to most of these features have been rejected by this Court, appellant
presents these arguments here in an abbreviated fashion sufficient to alert the
Court to the nature of each claim and its federal constitutional grounds, and to
provide a basis for the Court’s reconsideration. Individually and collectively, these
various constitutional defects require that appellant's sentence be set aside.
To avoid arbitrary and capricious application of the death penalty, the
Eighth and Fourteenth Amendments require that a death penalty statute's
provisions genuinely narrow the class of persons eligible for the death penalty and
reasonably justify the imposition of a more severe sentence compared to others
found guilty of murder. The California death penalty statute as written fails to
perform this narrowing, and this Court's interpretations of the statute have
expanded the statute's reach.
As applied, the death penalty statute sweeps virtually every murderer into
its grasp, and then allows any conceivable circumstance of a crime – even
circumstances squarely opposed to each other (e.g., the fact that the victim was
193
young versus the fact that the victim was old, the fact that the victim was killed at
home versus the fact that the victim was killed outside the home) – to justify the
imposition of the death penalty. Judicial interpretations of California’s death
penalty statutes have placed the entire burden of narrowing the class of first-degree
murderers to those most deserving of death on section 190.2, the “special
circumstances” section of the statute – but that section was specifically passed for
the purpose of making every murderer eligible for the death penalty.
There are no safeguards in California during the penalty phase that would
enhance the reliability of the trial’s outcome. Instead, factual prerequisites to the
imposition of the death penalty are found by jurors who are not instructed on any
burden of proof, and who may not agree with each other at all. Paradoxically, the
fact that “death is different” has been stood on its head to mean that procedural
protections taken for granted in trials for lesser criminal offenses are suspended
when the question is a finding that is foundational to the imposition of death. The
result is truly a “wanton and freakish” system that randomly chooses among the
thousands of murderers in California a few victims of the ultimate sanction. The
lack of safeguards needed to ensure reliable, fair determinations by the jury and
reviewing courts means that randomness in selecting who the State will kill
dominates the entire process of applying the penalty of death.
194
A. APPELLANT’ S DEATH PENALTY IS INVALID BECAUSE PENAL CODE
SECTION 190.2 IS IMPERMISSIBLY BROAD
California’s death penalty statute does not meaningfully narrow the pool of
murderers eligible for the death penalty. The death penalty is imposed randomly
on a small fraction of those who are death-eligible. The statute therefore is in
violation of the Eighth and Fourteenth Amendments to the U.S. Constitution. As
this Court has recognized:
To avoid the Eighth Amendment's proscription against cruel and

unusual punishment, a death penalty law must provide a “meaningful
basis for distinguishing the few cases in which the death penalty is
imposed from the many cases in which it is not.” (Furman v.
Georgia (1972) 408 U.S. 238, 92 S.Ct. 2726, 2764, 33 L.Ed.2d 346
[conc. opn. of White, J.]; accord, Godfrey v. Georgia (1980) 446
U.S. 420, 427, 100 S.Ct. 1759, 1764, 64 L.Ed. 2d 398 [plur. opn.].)
(People v. Edelbacher (1989) 47 Cal.3d 983, 1023.) In order to meet this
constitutional mandate, the states must genuinely narrow, by rational and objective
criteria, the class of murderers eligible for the death penalty:
Our cases indicate, then, that statutory aggravating circumstances

play a constitutionally necessary function at the stage of legislative
definition: they circumscribe the class of persons eligible for the
death penalty.
(Zant v. Stephens (1983) 462 U.S. 862, 878.)
The requisite narrowing in California is accomplished in its entirety by the
“special circumstances” set out in section 190.2. This Court has explained that
“[U]nder our death penalty law, . . . the section 190.2 ‘special circumstances’
195
perform the same constitutionally required ‘narrowing’ function as the
‘aggravating circumstances’ or ‘aggravating factors’ that some of the other states
use in their capital sentencing statutes.” (People v Bacigalupo (1993) 6 Cal.4th
857, 868.)
The 1978 death penalty law came into being, however, not to narrow those
eligible for the death penalty but to make all murderers eligible. This initiative
statute was enacted into law as Proposition 7 by its proponents on November 7,
1978. At the time of the offense charged against appellant the statute contained
[twenty-six] special circumstances 31 purporting to narrow the category of first-
degree murders to those murders most deserving of the death penalty. These
special circumstances are so numerous and so broad in definition as to encompass
nearly every first-degree murder, per the drafters’ declared intent.
In the 1978 Voter's Pamphlet, the proponents of Proposition 7 described
certain murders not covered by the existing 1977 death penalty law, and then
stated: “And if you were to be killed on your way home tonight simply because the
murderer was high on dope and wanted the thrill, the criminal would not receive
the death penalty. Why? Because the Legislature's weak death penalty law does
31
This figure does not include the “heinous, atrocious, or cruel”
special circumstance declared invalid in People v. Superior Court (Engert)
(1982) 31 Cal.3d 797. The number of special circumstances has continued to
grow and is now thirty-two.
196
not apply to every murderer. Proposition 7 would.” (See 1978 Voter's Pamphlet,
p. 34, “Arguments in Favor of Proposition 7” [emphasis added].)
Section 190.2’s all-embracing special circumstances were created with an
intent directly contrary to the constitutionally necessary function at the stage of
legislative definition: the circumscription of the class of persons eligible for the
death penalty. In California, almost all felony-murders are now special
circumstance cases, and felony-murder cases include accidental and unforeseeable
deaths, as well as acts committed in a panic or under the dominion of a mental
breakdown, or acts committed by others. (People v. Dillon (1984) 34 Cal.3d 441.)
Section 190.2’s reach has been extended to virtually all intentional murders by this
Court’s construction of the lying-in-wait special circumstance, which the Court has
construed so broadly as to encompass virtually all intentional murders. (See
People v. Hillhouse (2002) 27 Cal.4th 469, 500-501, 512-515; People v. Morales
(1989) 48 Cal.3d 527, 557-558, 575.) These broad categories are joined by so
many other categories of special-circumstance murder that the statute comes very
close to achieving its goal of making every murderer eligible for death.
A comparison of section 190.2 with Penal Code section 189, which defines
first-degree murder under California law, reveals that section 190.2’s sweep is so
broad that it is difficult to identify varieties of first-degree murder that would not
make the perpetrator statutorily death-eligible. One scholarly article has identified
197
seven narrow, theoretically possible categories of first-degree murder that would
not be capital crimes under section 190.2. (Shatz and Rivkind, The California
Death Penalty Scheme: Requiem for Furman?, 72 N.Y.U. L.Rev. 1283, 1324-26
(1997).)32 It is quite clear that these theoretically possible noncapital first-degree
murders represent a small subset of the universe of first-degree murders (Ibid.).
Section 190.2, rather than performing the constitutionally required function of
providing statutory criteria for identifying the relatively few cases for which the
death penalty is appropriate, does just the opposite. It culls out a small subset of
murders for which the death penalty will not be available. Section 190.2 was not
intended to, and does not, genuinely narrow the class of persons eligible for the
death penalty.
The issue presented here has not been addressed by the United States
Supreme Court. This Court routinely rejects challenges to the statute’s lack of any
32
The potentially largest of these theoretically possible categories of
noncapital first-degree murder is what the authors refer to as “‘simple’
premeditated murder,” i.e., a premeditated murder not falling under one of
section 190.2’s many special circumstance provisions. (Shatz and Rivkind,
supra, 72 N.Y.U. L.Rev. at 1325.) This would be a premeditated murder
committed by a defendant not convicted of another murder and not involving any
of the long list of motives, means, victims, or underlying felonies enumerated in
section 190.2. Most significantly, it would have to be a premeditated murder not
committed by means of lying in wait, i.e., a planned murder in which the killer
simply confronted and immediately killed the victim or, even more unlikely,
advised the victim in advance of the lethal assault of his intent to kill – a
distinctly improbable form of premeditated murder. (Ibid.)
198
meaningful narrowing and does so with very little discussion. In People v. Stanley
(1995) 10 Cal.4th 764, 842, this Court stated that the United States Supreme Court
rejected a similar claim in Pulley v. Harris (1984) 465 U.S. 37, 53. Not so. In
Harris, the issue before the court was not whether the 1977 law met the Eighth
Amendment’s narrowing requirement, but rather whether the lack of inter-case
proportionality review in the 1977 law rendered that law unconstitutional. Further,
the high court itself contrasted the 1977 law with the 1978 law under which
appellant was convicted, noting that the 1978 law had “greatly expanded” the list
of special circumstances. (Harris, supra, 465 U.S. at p. 52, fn. 14.)
The U.S. Supreme Court has made it clear that the narrowing function, as
opposed to the selection function, is to be accomplished by the legislature. The
electorate in California and the drafters of the Briggs Initiative threw down a
challenge to the courts by seeking to make every murderer eligible for the death
penalty. This Court should accept that challenge, review the death penalty scheme
currently in effect, and strike it down as so all-inclusive as to guarantee the
arbitrary imposition of the death penalty in violation of the Fifth, Sixth, Eighth,
and Fourteenth Amendments to the U.S. Constitution and prevailing international
law.33 (See section E of this Argument, post).
33
In a habeas petition to be filed after the completion of appellate
briefing, appellant will present empirical evidence confirming that section 190.2
as applied, as one would expect given its text, fails to genuinely narrow the class
199
B. APPELLANT’ S DEATH PENALTY IS INVALID BECAUSE PENAL CODE
SECTION 190.3( A) AS APPLIED ALLOWS ARBITRARY AND
CAPRICIOUS IMPOSITION OF DEATH IN VIOLATION OF THE FIFTH,
SIXTH, EIGHTH, AND FOURTEENTH AMENDMENTS TO THE UNITED
STATES CONSTITUTION
Section 190.3(a) violates the Fifth, Sixth, Eighth, and Fourteenth
Amendments to the United States Constitution in that it has been applied in such a
wanton and freakish manner that almost all features of every murder, even features
squarely at odds with features deemed supportive of death sentences in other cases,
have been characterized by prosecutors as “aggravating” within the statute’s
meaning.
Factor (a), listed in section 190.3, directs the jury to consider in aggravation
the “circumstances of the crime.” Having at all times found that the broad term
“circumstances of the crime” met constitutional scrutiny, this Court has never
applied a limiting construction to this factor other than to agree that an aggravating
factor based on the “circumstances of the crime” must be some fact beyond the
of persons eligible for the death penalty. Further, in his habeas petition, appellant
will present empirical evidence demonstrating that, as applied, California’s
capital sentencing scheme culls so overbroad a pool of statutorily death-eligible
defendants that an even smaller percentage of the statutorily death-eligible are
sentenced to death than was the case under the capital sentencing schemes
condemned in Furman v. Georgia (1972) 408 U.S. 238, 33 L.Ed.2d 346, and thus
that California’s sentencing scheme permits an even greater risk of arbitrariness
than those schemes and, like those schemes, is unconstitutional.
200
elements of the crime itself. 34 Indeed, the Court has allowed extraordinary
expansions of factor (a), approving reliance on the “circumstance of the crime”
aggravating factor because three weeks after the crime defendant sought to conceal
evidence,35 or had a “hatred of religion,” 36 or threatened witnesses after his arrest,37
or disposed of the victim’s body in a manner that precluded its recovery.38
The purpose of section 190.3, according to its language and according to
interpretations by both the California and United States Supreme Courts, is to
inform the jury of what factors it should consider in assessing the appropriate
penalty. Although factor (a) has survived a facial Eighth Amendment challenge
(Tuilaepa v. California (1994) 512 U.S. 967, 987-988), it has been used in ways so
arbitrary and contradictory as to violate both the federal guarantee of due process
of law and the Eighth Amendment.
34
People v. Dyer (1988) 45 Cal.3d 26, 78; People v. Adcox (1988) 47
Cal.3d 207, 270; see also CALJIC No. 8.88 (6 th ed. 1996), par. 3.
35
People v. Walker (1988) 47 Cal.3d 605, 639, fn.10, 765 P.2d 70,
90, fn.10, cert. den., 494 U.S. 1038 (1990).
36
People v. Nicolaus (1991) 54 Cal.3d 551, 581-582, 817 P.2d 893,
908-909, cert. den., 112 S. Ct. 3040 (1992).
37
People v. Hardy (1992) 2 Cal.4th 86, 204, 825 P.2d 781, 853, cert.
den., 113 S. Ct. 498.
38
People v. Bittaker (1989) 48 Cal.3d 1046, 1110, fn.35, 774 P.2d
659, 697, fn.35, cert. den. 496 U.S. 931 (1990).
201
Prosecutors throughout California have argued that the jury could weigh in
aggravation almost every conceivable circumstance of the crime, even those that,
from case to case, reflect starkly opposite circumstances. Thus, prosecutors have
been permitted to argue that “circumstances of the crime” is an aggravating factor
to be weighed on death’s side of the scale:
a. Because the defendant struck many blows and inflicted multiple
wounds 39 or because the defendant killed with a single execution-style wound.40
b. Because the defendant killed the victim for some purportedly
aggravating motive (money, revenge, witness-elimination, avoiding arrest, sexual
gratification)41 or because the defendant killed the victim without any motive at
all.42
39
See, e.g., People v. Morales, Cal. Sup. Ct. No. [hereinafter “No.”]
S004552, RT 3094-95 (defendant inflicted many blows); People v. Zapien, No.
S004762, RT 36-38 (same); People v. Lucas, No. S004788, RT 2997-98 (same);
People v. Carrera, No. S004569, RT 160-61 (same).
40
See, e.g., People v. Freeman, No. S004787, RT 3674, 3709
(defendant killed with single wound); People v. Frierson, No. S004761, RT
3026-27 (same).
41
See, e.g., People v. Howard, No. S004452, RT 6772 (money);
People v. Allison, No. S004649, RT 968-69 (same); People v. Belmontes, No.
S004467, RT 2466 (eliminate a witness); People v. Coddington, No. S008840,
RT 6759-60 (sexual gratification); People v. Ghent, No. S004309, RT 2553-55
(same); People v. Brown, No. S004451, RT 3543-44 (avoid arrest); People v.
McLain, No. S004370, RT 31 (revenge).
42
See, e.g., People v. Edwards, No. S004755, RT 10,544 (defendant
killed for no reason); People v. Osband, No. S005233, RT 3650 (same); People v.
202
c. Because the defendant killed the victim in cold blood 43 or because
the defendant killed the victim during a savage frenzy.44
d. Because the defendant engaged in a cover-up to conceal his
crime 45 or because the defendant did not engage in a cover-up and so must have
been proud of it.46
e. Because the defendant made the victim endure the terror of
anticipating a violent death 47 or because the defendant killed instantly without any
warning.48
Hawkins, No. S014199, RT 6801 (same).

43
See, e.g., People v. Visciotti, No. S004597, RT 3296-97 (defendant
killed in cold blood).
44
See, e.g., People v. Jennings, No. S004754, RT 6755 (defendant
killed victim in savage frenzy [trial court finding]).
45
See, e.g., People v. Stewart, No. S020803, RT 1741-42 (defendant
attempted to influence witnesses); People v. Benson, No. S004763, RT 1141
(defendant lied to police); People v. Miranda, No. S004464, RT 4192 (defendant
did not seek aid for victim).
46
See, e.g., People v. Adcox, No. S004558, RT 4607 (defendant
freely informed others about crime); People v. Williams, No. S004365, RT 3030-
31 (same); People v. Morales, No. S004552, RT 3093 (defendant failed to
engage in a cover-up).
47
See, e.g., People v. Webb, No. S006938, RT 5302; People v. Davis,
No. S014636, RT 11,125; People v. Hamilton, No. S004363, RT 4623.
48
See, e.g., People v. Freeman, No. S004787, RT 3674 (defendant
killed victim instantly); People v. Livaditis, No. S004767, RT 2959 (same).
203
f. Because the victim had children 49 or because the victim had not
yet had a chance to have children.50
g. Because the victim struggled prior to death 51 or because the
victim did not struggle.52
h. Because the defendant had a prior relationship with the victim 53
or because the victim was a complete stranger to the defendant.54
These examples show that absent any limitation on the “circumstances of
the crime” aggravating factor, different prosecutors have urged juries to find this
aggravating factor and place it on death’s side of the scale based on squarely
conflicting circumstances.
49
See, e.g., People v. Zapien, No. S004762, RT 37 (Jan 23, 1987)
(victim had children).
50
See, e.g., People v. Carpenter, No. S004654, RT 16,752 (victim
had not yet had children).
51
See, e.g., People v. Dunkle, No. S014200, RT 3812 (victim
struggled); People v. Webb, No. S006938, RT 5302 (same); People v. Lucas, No.
S004788, RT 2998 (same).
52
See, e.g., People v. Fauber, No. S005868, RT 5546-47 (no
evidence of a struggle); People v. Carrera, No. S004569, RT 160 (same).
53
See, e.g., People v. Padilla, No. S014496, RT 4604 (prior
relationship); People v. Waidla, No. S020161, RT 3066-67 (same); People v.
Kaurish (1990) 52 Cal.3d 648, 717 (same).
54
See, e.g., People v. Anderson, No. S004385, RT 3168-69 (no prior
relationship); People v. McPeters, No. S004712, RT 4264 (same).
204
Of equal importance to the arbitrary and capricious use of contradictory
circumstances of the crime to support a penalty of death is the use of the
“circumstances of the crime” aggravating factor to embrace facts which cover the
entire spectrum of facets inevitably present in every homicide:
a. The age of the victim. Prosecutors have argued, and juries were
free to find, that factor (a) was an aggravating circumstance because the victim
was a child, an adolescent, a young adult, in the prime of life, or elderly.55
b. The method of killing. Prosecutors have argued, and juries were
was strangled, bludgeoned, shot, stabbed or consumed by fire.56
55
See, e.g., People v. Deere, No. S004722, RT 155-56 (victims were
young, ages 2 and 6); People v. Bonin, No. S004565, RT 10,075 (victims were
adolescents, ages 14, 15, and 17); People v. Kipp, No. S009169, RT 5164 (victim
was a young adult, age 18); People v. Carpenter, No. S004654, RT 16,752
(victim was 20), People v. Phillips, (1985) 41 Cal.3d 29, 63, 711 P.2d 423, 444
(26-year-old victim was “in the prime of his life”); People v. Samayoa, No.
S006284, XL RT 49 (victim was an adult “in her prime”); People v. Kimble, No.
S004364, RT 3345 (61-year-old victim was “finally in a position to enjoy the
fruits of his life’s efforts”); People v. Melton, No. S004518, RT 4376 (victim was
77); People v. Bean, No. S004387, RT 4715-16 (victim was “elderly”).
56
See, e.g., People v. Clair, No. S004789, RT 2474-75
(strangulation); People v. Kipp, No. S004784, RT 2246 (same); People v.
Fauber, No. S005868, RT 5546 (use of an ax); People v. Benson, No. S004763,
RT 1149 (use of a hammer); People v. Cain, No. S006544, RT 6786-87 (use of a
club); People v. Jackson, No. S010723, RT 8075-76 (use of a gun); People v.
Reilly, No. S004607, RT 14,040 (stabbing); People v. Scott, No. S010334, RT
847 (fire).
205
c. The motive of the killing. Prosecutors have argued, and juries
were free to find, that factor (a) was an aggravating circumstance because the
defendant killed for money, to eliminate a witness, for sexual gratification, to
avoid arrest, for revenge, or for no motive at all.57
d. The time of the killing. Prosecutors have argued, and juries were
was killed in the middle of the night, late at night, early in the morning or in the
middle of the day.58
e. The location of the killing. Prosecutors have argued, and juries
were free to find, that factor (a) was an aggravating circumstance because the
victim was killed in her own home, in a public bar, in a city park or in a remote
location.59
57
See, e.g., People v. Howard, No. S004452, RT 6772 (money);
People v. Allison, No. S004649, RT 969-70 (same); People v. Belmontes, No.
S004467, RT 2466 (eliminate a witness); People v. Coddington, No. S008840,
RT 6759-61 (sexual gratification); People v. Ghent, No. S004309, RT 2553-55
(same); People v. Brown, No. S004451, RT 3544 (avoid arrest); People v.
McLain, No. S004370, RT 31 (revenge); People v. Edwards, No. S004755, RT
10,544 (no motive at all).
58
See, e.g., People v. Fauber, No. S005868, RT 5777 (early
morning); People v. Bean, No. S004387, RT 4715 (middle of the night); People
v. Avena, No. S004422, RT 2603-04 (late at night); People v. Lucero, No.
S012568, RT 4125-26 (middle of the day).
59
See, e.g., People v. Anderson, No. S004385, RT 3167-68 (victim’s
home); People v. Cain, No. S006544, RT 6787 (same); People v. Freeman, No.
S004787, RT 3674, 3710-11 (public bar); People v. Ashmus, No. S004723, RT
206
The foregoing examples of how the factor (a) aggravating circumstance is
actually being applied in practice make clear that it is being relied upon as an
aggravating factor in every case, by every prosecutor, without any limitation
whatever. As a consequence, from case to case, prosecutors have been permitted
to turn entirely opposite facts – or facts that are inevitable variations of every
homicide – into aggravating factors which the jury is urged to weigh on death’s
side of the scale.60
In practice, section 190.3’s broad “circumstances of the crime” aggravating
factor licenses indiscriminate imposition of the death penalty upon no basis other
than “that a particular set of facts surrounding a murder, . . . were enough in
themselves, and without some narrowing principles to apply to those facts, to
warrant the imposition of the death penalty.” (Maynard v. Cartwright (1988) 486
U.S. 356, 363 [discussing the holding in Godfrey v. Georgia (1980) 446 U.S.
420].)
7340-41 (city park); People v. Carpenter, No. S004654, RT 16,749-50 (forested

area); People v. Comtois, No. S017116, RT 2970 (remote, isolated location).
60
The danger that such facts have been, and will continue to be,
treated as aggravating factors and weighed in support of sentences of death is
heightened by the fact that, under California’s capital sentencing scheme, the
sentencing jury is not required to unanimously agree as to the existence of an
aggravating factor, to find that any aggravating factor (other than prior
criminality) exists beyond a reasonable doubt, or to make any record of the
aggravating factors relied upon in determining that the aggravating factors
outweigh the mitigating. (See section C of this argument, below.)
207
C. CALIFORNIA’ S DEATH PENALTY STATUTE CONTAINS NO
SAFEGUARDS TO AVOID ARBITRARY AND CAPRICIOUS SENTENCING
AND DEPRIVES DEFENDANTS OF THE RIGHT TO A JURY TRIAL ON
EACH FACTUAL DETERMINATION PREREQUISITE TO A SENTENCE OF
DEATH; IT THEREFORE VIOLATES THE SIXTH, EIGHTH, AND
FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION
As shown above, California’s death penalty statute effectively does nothing
to narrow the pool of murderers to those most deserving of death in either its
“special circumstances” section (§ 190.2) or in its sentencing guidelines (§ 190.3).
Section 190.3(a) allows prosecutors to argue that every feature of a crime that can
be articulated is an acceptable aggravating circumstance, even features that are
mutually exclusive.
Furthermore, there are none of the safeguards common to other death
penalty sentencing schemes to guard against the arbitrary imposition of death.
Juries do not have to make written findings or achieve unanimity as to aggravating
circumstances. They do not have to believe beyond a reasonable doubt that
aggravating circumstances are proved, that they outweigh the mitigating
circumstances, or that death is the appropriate penalty. In fact, except as to the
existence of other criminal activity and prior convictions, juries are not instructed
on any burden of proof at all. Not only is inter-case proportionality review not
required; it is not permitted. Under the rationale that a decision to impose death is
“moral” and “normative,” the fundamental components of reasoned decision-
making that apply to all other parts of the law have been banished from the entire
208
process of making the most consequential decision a juror can make – whether or
not to impose death.
1. APPELLANT’ S DEATH VERDICT WAS NOT PREMISED ON

FINDINGS BEYOND A REASONABLE DOUBT BY A UNANIMOUS
JURY THAT ONE OR MORE AGGRAVATING FACTORS EXISTED
AND THAT THESE FACTORS OUTWEIGHED MITIGATING
FACTORS; HIS CONSTITUTIONAL RIGHT TO JURY
DETERMINATION BEYOND A REASONABLE DOUBT OF ALL
FACTS ESSENTIAL TO THE IMPOSITION OF A DEATH PENALTY
WAS THEREBY VIOLATED
Except as to prior criminality, appellant’s jury was not told that it had to
find any aggravating factor true beyond a reasonable doubt. The jurors were not
told that they needed to agree at all on the presence of any particular aggravating
factor, or that they had to find beyond a reasonable doubt that aggravating factors
outweighed mitigating factors before determining whether or not to impose a death
sentence.
All this was consistent with this Court’s previous interpretations of
California’s statute. In People v. Fairbank (1997) 16 Cal.4th 1223, 1255, this
Court said that “neither the federal nor the state Constitution requires the jury to
agree unanimously as to aggravating factors, or to find beyond a reasonable doubt
that aggravating factors exist, [or] that they outweigh mitigating factors . . .” But
these interpretations have been squarely rejected by the U.S. Supreme Court’s
decisions in Apprendi v. New Jersey (2000) 530 U.S. 466, 490 [hereinafter
209
Apprendi] and Ring v. Arizona (2002) 536 U.S. 584, 122 S. Ct. 2428 [hereinafter
Ring].
In Apprendi, the high court held that a state may not impose a sentence
greater than that authorized by the jury’s simple verdict of guilt unless the facts
supporting an increased sentence (other than a prior conviction) are also submitted
to the jury and proved beyond a reasonable doubt. (Id. at p. 478.)
In Ring, the high court held that Arizona’s death penalty scheme, under
which a judge sitting without a jury makes factual findings necessary to impose the
death penalty, violated the defendant’s constitutional right to have the jury
determine, unanimously and beyond a reasonable doubt, any fact that may increase
the maximum punishment. While the primary problem presented by Arizona’s
capital sentencing scheme was that a judge, sitting without a jury, made the critical
findings, the court reiterated its holding in Apprendi, that when the State bases an
increased statutory punishment upon additional findings, such findings must be
made by a unanimous jury beyond a reasonable doubt. California’s death penalty
scheme as interpreted by this Court violates the federal Constitution.
a. IN THE WAKE OF RING, ANY AGGRAVATING FACTOR

NECESSARY TO THE IMPOSITION OF DEATH MUST BE
FOUND TRUE BEYOND A REASONABLE DOUBT
Twenty-six states require that factors relied on to impose death in a penalty
phase must be proven beyond a reasonable doubt by the prosecution, and three
210
additional states have related provisions.61 Only California and four other states
(Florida, Missouri, Montana, and New Hampshire) fail to statutorily address the
matter.
California law as interpreted by this Court does not require that a reasonable
doubt standard be used during any part of the penalty phase of a defendant’s trial,
except as to proof of prior criminality relied upon as an aggravating circumstance –
and even in that context the required finding need not be unanimous. (People v.
61
See Ala. Code § 13A-5-45(e) (1975); Ark. Code Ann. § 5-4-603
(Michie 1987); Colo. Rev. Stat. Ann. § 16-11-103(d) (West 1992); Del. Code
Ann. tit. 11, § 4209(d)(1)(a) (1992); Ga. Code Ann. § 1710-30(c) (Harrison
1990); Idaho Code § 19-2515(g) (1993); Ill. Ann. Stat. ch. 38, para. 9-1(f)
(Smith-Hurd 1992); Ind. Code Ann. §§ 35-50-2-9(a), (e) (West 1992); Ky. Rev.
Stat. Ann. § 532.025(3) (Michie 1992); La. Code Crim. Proc. Ann. art. 905.3
(West 1984); Md. Ann. Code art. 27, §§ 413(d), (f), (g) (1957); Miss. Code Ann.
§ 99-19-103 (1993); State v. Stewart (Neb. 1977) 250 N.W.2d 849, 863; State v.
Simants (Neb. 1977) 250 N.W.2d 881, 888-90; Nev. Rev. Stat. Ann. § 175.554(3)
(Michie 1992); N.J.S.A. 2C:11-3c(2)(a); N.M. Stat. Ann. § 31-20A-3 (Michie
1990); Ohio Rev. Code § 2929.04 (Page's 1993); Okla. Stat. Ann. tit. 21,
§ 701.11 (West 1993); 42 Pa. Cons. Stat. Ann. § 9711(c)(1)(iii) (1982); S.C.
Code Ann. §§ 16-3-20(A), (c) (Law. Co-op 1992); S.D. Codified Laws Ann.
§ 23A-27A-5 (1988); Tenn. Code Ann. § 39-13-204(f) (1991); Tex. Crim. Proc.
Code Ann. § 37.071(c) (West 1993); State v. Pierre (Utah 1977) 572 P.2d 1338,
1348; Va. Code Ann. § 19.2-264.4 (c) (Michie 1990); Wyo. Stat.
§§ 6-2-102(d)(i)(A), (e)(I) (1992).
Washington has a related requirement that, before making a death
judgment, the jury must make a finding beyond a reasonable doubt that no
mitigating circumstances exist sufficient to warrant leniency. (Wash. Rev. Code
Ann. § 10.95.060(4) (West 1990).) And Arizona and Connecticut require that the
prosecution prove the existence of penalty phase aggravating factors, but specify
no burden. (Ariz. Rev. Stat. Ann. § 13-703) (1989); Conn. Gen. Stat. Ann.
§ 53a-46a(c) (West 1985).)
211
Fairbank, supra; see also People v. Hawthorne (1992) 4 Cal.4th 43, 79 [penalty
phase determinations are “moral and . . . not factual,” and therefore not
“susceptible to a burden-of-proof quantification”].)
California statutory law and jury instructions, however, do require fact-
finding before the decision to impose death or a lesser sentence is finally made.
As a prerequisite to the imposition of the death penalty, section 190.3 requires the
“trier of fact” to find that at least one aggravating factor exists and that such
aggravating factor (or factors) outweigh any and all mitigating factors.62
According to California’s “principal sentencing instruction” (People v. Farnam
(2002) 28 Cal.4th 107, 177), “an aggravating factor is any fact, condition or event
attending the commission of a crime which increases its guilt or enormity, or adds
to its injurious consequences which is above and beyond the elements of the crime
itself.” (CALJIC No. 8.88; emphasis added.)
Thus, before the process of weighing aggravating factors against mitigating
factors can begin, the presence of one or more aggravating factors must be found
by the jury. And before the decision whether or not to impose death can be made,
62
This Court has acknowledged that fact-finding is part of a
sentencing jury’s responsibility; its role “is not merely to find facts, but also –
and most important – to render an individualized, normative determination about
the penalty appropriate for the particular defendant. . . .” (People v. Brown
(1988) 46 Cal.3d 432, 448.)
212
the jury must find that aggravating factors outweigh mitigating factors.63 These
factual determinations are essential prerequisites to death-eligibility, but do not
mean that death is the inevitable verdict; the jury can still reject death as the
appropriate punishment notwithstanding these factual findings.64
In People v. Anderson (2001) 25 Cal.4th 543, 589, this Court held that since
the maximum penalty for one convicted of first-degree murder with a special
circumstance is death (see section 190.2(a)), Apprendi does not apply. After Ring,
this Court repeated the same analysis in People v. Snow (2003) 30 Cal.4th 43
[hereinafter Snow], and People v. Prieto (2003) 30 Cal.4th 226 [hereinafter
Prieto]: “Because any finding of aggravating factors during the penalty phase
does not ‘increase the penalty for a crime beyond the prescribed statutory
maximum’ (citation omitted), Ring imposes no new constitutional requirements on
63
In Johnson v. State (Nev., 2002) 59 P.3d 450, the Nevada Supreme
Court found that under a statute similar to California’s, the requirement that
aggravating factors outweigh mitigating factors was a factual determination, and
not merely discretionary weighing, and therefore “even though Ring expressly
abstained from ruling on any ‘Sixth Amendment claim with respect to mitigating
circumstances,’ (fn. omitted) we conclude that Ring requires a jury to make this
finding as well: ‘If a State makes an increase in a defendant’s authorized
punishment contingent on the finding of a fact, that fact – no matter how the
State labels it – must be found by a jury beyond a reasonable doubt.’” (Id., 59
P.3d at p. 460)
64
This Court has held that despite the “shall impose” language of
section 190.3, even if the jurors determine that aggravating factors outweigh
mitigating factors, they may still impose a sentence of life in prison. (People v.
Allen (1986) 42 Cal.3d 1222, 1276-1277; People v. Brown (Brown I) (1985) 40
Cal.3d 512, 541.)
213
California’s penalty phase proceedings.” (People v. Prieto, supra, 30 Cal.4th at p.
263.) This holding is based on a truncated view of California law. As section 190,
subd. (a),65 indicates, the maximum penalty for any first-degree murder conviction
is death.
Arizona advanced precisely the same argument in Ring to no avail:
In an effort to reconcile its capital sentencing system with the Sixth

Amendment as interpreted by Apprendi, Arizona first restates the
Apprendi majority’s portrayal of Arizona's system: Ring was
convicted of first-degree murder, for which Arizona law specifies
“death or life imprisonment” as the only sentencing options, see
Ariz.Rev.Stat. Ann. § 13-1105(c) (West 2001); Ring was therefore
sentenced within the range of punishment authorized by the jury
verdict. . . . This argument overlooks Apprendi's instruction that “the
relevant inquiry is one not of form, but of effect.” 530 U.S., at 494,
120 S.Ct. 2348. In effect, “the required finding [of an aggravated
circumstance] expose[d] [Ring] to a greater punishment than that
authorized by the jury's guilty verdict.” Ibid.; see 200 Ariz., at 279,
25 P.3d, at 1151.
(Ring, 122 S.Ct. at 2431.)
In this regard, California’s statute is no different than Arizona’s. Just as
when a defendant is convicted of first-degree murder in Arizona, a California
conviction of first-degree murder, even with a finding of one or more special
circumstances, “authorizes a maximum penalty of death only in a formal sense.”
65
Section 190, subd. (a) provides as follows: “Every person guilty of
murder in the first-degree shall be punished by death, imprisonment in the state
prison for life without the possibility of parole, or imprisonment in the state
prison for a term of 25 years to life.”
214
(Ring, supra, 122 S.Ct. at p. 2440.) 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 actually be imposed unless the jury finds a
special circumstance (section 190.2). Death is not an available option unless the
jury makes the further finding that one or more aggravating circumstances
substantially outweigh(s) the mitigating circumstances. (Section 190.3; CALJIC
8.88 (7 th ed., 2003). It cannot be assumed that a special circumstance suffices as
the aggravating circumstance required by section 190.3. The relevant jury
instruction defines an aggravating circumstance as a fact, circumstance, or event
beyond the elements of the crime itself (CALJIC 8.88), and this Court has
recognized that a particular special circumstance can even be argued to the jury as
a mitigating circumstance. (See People v. Hernandez (2003) 30 Cal.4th 835, 864
[financial gain special circumstance (section 190.2, subd. (a)(1)) can be argued as
mitigating if murder was committed by an addict to feed addiction].)
Arizona’s statute says that the trier of fact shall impose death if the
sentencer finds one or more aggravating circumstances, and no mitigating
215
circumstances substantial enough to call for leniency,66 while California’s statute
provides that the trier of fact may impose death only if the aggravating
circumstances substantially outweigh the mitigating circumstances.67
There is no meaningful difference between the processes followed under
each scheme. “If a State makes an increase in a defendant’s authorized
punishment contingent on the finding of a fact, that fact – no matter how the State
labels it – must be found by a jury beyond a reasonable doubt.” (Ring, 122 S.Ct. at
2439-2440.) The issue of Ring’s applicability hinges on whether as a practical
matter, the sentencer must make additional fact-findings during the penalty phase
66
Ariz.Rev.Stat. Ann. section 13-703(E) provides: “In determining
whether to impose a sentence of death or life imprisonment, the trier of fact shall
take into account the aggravating and mitigating circumstances that have been
proven. The trier of fact shall impose a sentence of death if the trier of fact finds
one or more of the aggravating circumstances enumerated in subsection F of this
section and then determines that there are no mitigating circumstances
sufficiently substantial to call for leniency.”
67
California Penal Code Section 190.3 provides in pertinent part:
“After having heard and received all of the evidence, and after having heard and
considered the arguments of counsel, the trier of fact shall consider, take into
account and be guided by the aggravating and mitigating circumstances referred
to in this section, and shall impose a sentence of death if the trier of fact
concludes that the aggravating circumstances outweigh the mitigating
circumstances.” In People v. Brown (1985) 40 Cal.3d 512, 541, 545, fn.19, the
California Supreme Court construed the “shall impose” language of section 190.3
as not creating a mandatory sentencing standard and approved an instruction
advising the sentencing jury that a finding that the aggravating circumstances
substantially outweighed the mitigating circumstances was a prerequisite to
imposing a death sentence. California juries continue to be so instructed. (See
CALJIC 8.88 (7 th ed. 2003).)
216
before determining whether or not the death penalty can be imposed. In
California, as in Arizona, the answer is “Yes.”
This Court has recognized that fact-finding is one of the functions of the
sentencer; California statutory law, jury instructions, and the Court’s previous
decisions leave no doubt that facts must be found before the death penalty may be
considered. The Court held that Ring does not apply, however, because the facts
found at the penalty phase are “facts which bear upon, but do not necessarily
determine, which of these two alternative penalties is appropriate.” (Snow, supra,
30 Cal.4 th at 126, fn. 32; citing Anderson, supra, 25 Cal.4th at 589-590, fn.14.)
The distinction between facts that “bear on” the penalty determination and
facts that “necessarily determine” the penalty is a distinction without a difference.
There are no facts, in Arizona or California, that are “necessarily determinative” of
a sentence – in both states, the sentencer is free to impose a sentence of less than
death regardless of the aggravating circumstances. In both states, any one of a
number of possible aggravating factors may be sufficient to impose death – no
single specific factor must be found in Arizona or California. And, in both states,
the absence of an aggravating circumstance precludes entirely the imposition of a
death sentence. The finding of an aggravating factor is an essential step before the
weighing process begins.
217
In Prieto, the Court summarized California’s penalty phase procedure as
follows: “Thus, in the penalty phase, the jury merely weighs the factors
enumerated in section 190.3 and determines ‘whether a defendant eligible for the
death penalty should in fact receive that sentence.’ (Tuilaepa v. California (1994)
512 U.S. 967, 972, 114 S.Ct. 2630, 129 L.Ed.2d 750.) No single factor therefore
determines which penalty – death or life without the possibility of parole – is
appropriate.” (Prieto, 30 Cal.4th at 263; emphasis added.) This summary omits
the fact that death is simply not an option unless and until at least one aggravating
circumstance is found to have occurred or be present – otherwise, there is nothing
to put on the scale. The fact that no single factor determines penalty does not
negate the requirement that facts be found as a prerequisite to considering the
imposition of a death sentence.
A California jury must first decide whether any aggravating circumstances,
as defined by section 190.3 and the standard penalty phase instructions, exist in the
case before it. Only after this initial factual determination has been made can the
jury move on to “merely” weigh those factors against the proffered mitigation.
The presence of at least one aggravating factor is the functional equivalent of an
element of capital murder in California and requires the same Sixth Amendment
protection. (See Ring, supra, 122 S.Ct. at 2439-2440.)
218
Finally, this Court relied on the undeniable fact that “death is different,” but
used the moral and normative nature of the decision to choose life or death as a
basis for withholding rather than extending procedural protections. (Prieto, 30
Cal. 4 th at 263.) In Ring, Arizona also sought to justify the lack of a unanimous
jury finding beyond a reasonable doubt of aggravating circumstances by arguing
that “death is different.” This effort to turn the high court’s recognition of the
irrevocable nature of the death penalty to its advantage was rebuffed.
Apart from the Eighth Amendment provenance of aggravating

factors, Arizona presents “no specific reason for excepting capital
defendants from the constitutional protections . . . extend[ed] to
defendants generally, and none is readily apparent.” The notion that
the Eighth Amendment’s restriction on a state legislature’s ability to
define capital crimes should be compensated for by permitting States
more leeway under the Fifth and Sixth Amendments in proving an
aggravating fact necessary to a capital sentence . . . is without
precedent in our constitutional jurisprudence.
(Ring, supra, 122 S.Ct. at p. 2442, citing with approval Justice O’Connor’s
Apprendi dissent, 530 U.S. at p. 539.)
No greater interest is ever at stake than in the penalty phase of a capital
case. (Monge v. California (1998) 524 U.S. 721, 732 [“the death penalty is unique
in its severity and its finality”].)68 As the high court stated in Ring, supra, 122
68
In Monge, the U.S. Supreme Court foreshadowed Ring, and
expressly found the Santosky v. Kramer ((1982) 455 U.S. 745, 755) rationale for
the beyond-a-reasonable-doubt burden of proof requirement applicable to capital
sentencing proceedings: “[I]n a capital sentencing proceeding, as in a criminal
trial, ‘the interests of the defendant [are] of such magnitude that . . . they have
219
S.Ct. at pp. 2432, 2443:
Capital defendants, no less than non-capital defendants, we

conclude, are entitled to a jury determination of any fact on which
the legislature conditions an increase in their maximum
punishment. . . . The right to trial by jury guaranteed by the Sixth
Amendment would be senselessly diminished if it encompassed the
fact-finding necessary to increase a defendant’s sentence by two
years, but not the fact-finding necessary to put him to death.
The final step of California’s capital sentencing procedure is indeed a free
weighing of aggravating and mitigating circumstances, and the decision to impose
death or life is a moral and a normative one. This Court errs greatly, however, in
using this fact to eliminate procedural protections that would render the decision a
rational and reliable one and to allow the facts that are prerequisite to the
determination to be uncertain, undefined, and subject to dispute not only as to their
significance, but as to their accuracy. This Court’s refusal to accept the
applicability of Ring to any part of California’s penalty phase violates the Sixth,
Eighth, and Fourteenth Amendments to the U.S. Constitution.
been protected by standards of proof designed to exclude as nearly as possible the

likelihood of an erroneous judgment.’ ([Bullington v. Missouri,] 451 U.S. at p.
441 (quoting Addington v. Texas, 441 U.S. 418, 423-424, 60 L.Ed.2d 323, 99
S.Ct. 1804 (1979).)” (Monge v. California, supra, 524 U.S. at p. 732 (emphasis
added).)
220
b. THE REQUIREMENTS OF JURY AGREEMENT AND
UNANIMITY
This Court “has held that unanimity with respect to aggravating factors is
not required by statute or as a constitutional procedural safeguard.” (People v.
Taylor (1990) 52 Cal.3d 719, 749; accord, People v. Bolin (1998) 18 Cal.4th 297,
335-336.) Consistent with this construction of California’s capital sentencing
scheme, no instruction was given to appellant’s jury requiring jury agreement on
any particular aggravating factor.
Here, there was not even a requirement that a majority of jurors agree on
any particular aggravating factor, let alone agree that any particular combination of
aggravating factors warranted the sentence of death. On the instructions and
record in this case, there is nothing to preclude the possibility that each of 12 jurors
voted for a death sentence based on a perception of what was aggravating enough
to warrant a death penalty that would have lost by a 1-11 vote had it been put to the
jury as a reason for the death penalty.
With nothing to guide its decision, there is nothing to suggest the jury
imposed a death sentence based on any agreement on reasons therefor – including
which aggravating factors were in the balance. The absence of historical authority
to support such a practice in sentencing further violates the Sixth, Eighth, and
221
Fourteenth Amendments.69 And it violates the Sixth, Eighth, and Fourteenth
Amendments to impose a death sentence when there is no assurance the jury, or a
majority of the jury, ever found a single set of aggravating circumstances which
warranted the death penalty.
The finding of one or more aggravating factors, and the finding that such
factors outweigh mitigating factors, are critical factual findings in California’s
sentencing scheme, and prerequisites to the ultimate deliberative process in which
normative determinations are made. The U.S. Supreme Court has made clear that
such factual determinations must be made by a jury and cannot be attended with
fewer procedural protections than decisions of much less consequence. (Ring,
supra.)
These protections include jury unanimity. The U.S. Supreme Court has
held that the verdict of a six-person jury must be unanimous in order to “assure . . .
[its] reliability.” (Brown v. Louisiana (1980) 447 U.S. 323, 334 [100 S.Ct. 2214,
65 L.Ed.2d 159].) Particularly given the “acute need for reliability in capital
sentencing proceedings” (Monge v. California, supra, 524 U.S. at p. 732;70 accord,
69
See, e.g., Griffin v. United States (1991) 502 U.S. 46, 51 [112 S.Ct.
466, 116 L.Ed.2d 371] [historical practice given great weight in constitutionality
determination]; Murray’s Lessee v. Hoboken Land and Improvement Co. (1855)
59 U.S. (18 How.) 272, 276-277 [due process determination informed by
historical settled usages].
70
The Monge court developed this point at some length, explaining as
follows: “The penalty phase of a capital trial is undertaken to assess the gravity
222
Johnson v. Mississippi (1988) 486 U.S. 578, 584), the Sixth, Eighth, and
Fourteenth Amendments are likewise not satisfied by anything less than unanimity
in the crucial findings of a capital jury.
An enhancing allegation in a California non-capital case is a finding that
must, by law, be unanimous. (See, e.g., sections 1158, 1158a.) Capital defendants
are entitled, if anything, to more rigorous protections than those afforded
non-capital defendants (see Monge v. California, supra, 524 U.S. at p. 732;
Harmelin v. Michigan (1991) 501 U.S. 957, 994), and certainly no less (Ring, 122
S.Ct. at p. 2443).71 See section D, post.
of a particular offense and to determine whether it warrants the ultimate

punishment; it is in many respects a continuation of the trial on guilt or innocence
of capital murder. ‘It is of vital importance’ that the decisions made in that
context ‘be, and appear to be, based on reason rather than caprice or emotion.’
Gardner v. Florida 430 U.S. 349, 358, 97 S.Ct. 1197, 1204, 51 L.Ed.2d 393
(1977). Because the death penalty is unique ‘in both its severity and its finality,’
id., at 357, 97 S.Ct., at 1204, we have recognized an acute need for reliability in
capital sentencing proceedings. See Lockett v. Ohio, 438 U.S. 586, 604, 98 S.Ct.
2954, 2964, 57 L.Ed.2d 973 (1978) (opinion of Burger, C.J.) (stating that the
‘qualitative difference between death and other penalties calls for a greater
degree of reliability when the death sentence is imposed’); see also Strickland v.
Washington, 466 U.S. 668, 704, 104 S.Ct. 2052, 2073, 80 L.Ed.2d 674 (1984)
(Brennan, J., concurring in part and dissenting in part) (‘[W]e have consistently
required that capital proceedings be policed at all stages by an especially vigilant
concern for procedural fairness and for the accuracy of factfinding’).” (Monge v.
California, supra, 524 U.S. at pp. 731-732.)
71
Under the federal death penalty statute, a “finding with respect to
any aggravating factor must be unanimous.” (21 U.S.C. § 848, subd. (k).)
223
Jury unanimity was deemed such an integral part of criminal jurisprudence
by the Framers of the California Constitution that the requirement did not even
have to be directly stated.72 To apply the requirement to findings carrying a
maximum punishment of one year in the county jail – but not to factual findings
that often have a “substantial impact on the jury’s determination whether the
defendant should live or die” (People v. Medina (1995) 11 Cal.4th 694, 763-764)
– would by its inequity violate the equal protection clause and by its irrationality
violate both the due process and cruel and unusual punishment clauses of the state
and federal Constitutions, as well as the Sixth Amendment’s guarantee of a trial by
jury.
This Court has said that the safeguards applicable in criminal trials are not
applicable when unadjudicated offenses are sought to be proved in capital
sentencing proceedings “because [in the latter proceeding the] defendant [i]s not
being tried for that [previously unadjudicated] misconduct.” (People v. Raley
(1992) 2 Cal.4th 870, 910.) The United States Supreme Court has repeatedly
pointed out, however, that the penalty phase of a capital case “has the ‘hallmarks’
of a trial on guilt or innocence.” (Monge v. California, supra, 524 U.S. at p. 726;
72
The first sentence of article 1, section 16 of the California
Constitution provides: “Trial by jury is an inviolate right and shall be secured to
all, but in a civil cause three-fourths of the jury may render a verdict.” (See
People v. Wheeler (1978) 22 Cal.3d 258, 265 [confirming the inviolability of the
unanimity requirement in criminal trials].)
224
Strickland v. Washington, 466 U.S. at pp. 686-687; Bullington v. Missouri (1981)
451 U.S. 430, 439 [101 S.Ct. 1852, 68 L.Ed.2d 270].) While the unadjudicated
offenses are not the offenses the defendant is being “tried for,” obviously, that
trial-within-a-trial often plays a dispositive role in determining whether death is
imposed. This is particularly the case where, as here, the chief reasons presented
to the jury for imposing a death sentence were various forms of misconduct that
were not part of the commitment offenses. The prosecutor began his closing
penalty-phase summation by explicitly urging the jury to return a death verdict
based, in material part, on the unadjudicated offenses. (RT 3372-3373.) The
prosecutor argued:
What is the just punishment for a man who commits a series,

a string of life-threatening crimes leading up to those murders [for
which appellant has been found guilty], including attacking another
human being with an ax or a hatchet after being confronted about
some graffiti and then attacking together with the group of thugs a
man sitting at a bus stop just trying to get on a bus to get to work and
while that man is being robbed, having that man informed that that
[sic] if he doesn't cooperate his throat will be slit, and then firing
round after round after round inside the dwelling house where very
easily any one of the occupants could have been killed.
And then what is the just punishment for a man who while he
has every incentive in the world sitting in jail pending murder
charges to act right continues the savagery giving one person after
another the beating of their lives leaving two separate human beings
with life-threatening injuries and life long memories of this
continual, continual pattern of savagery? The only just punishment
for the sum total of all these crimes, all this savage brutality towards
fellow mankind, the only just punishment for this defendant Gerardo
Romero is death. [RT 3372-3373.]
225
In Richardson v. United States (1999) 526 U.S. 813, 815-816, the U.S.
Supreme Court interpreted 21 U.S.C. § 848(a), and held that the jury must
unanimously agree on which three drug violations constituted the “‘continuing
series of violations’” necessary for a continuing criminal enterprise [CCE]
conviction. The high court’s reasons for this holding are instructive:
The statute’s word “violations” covers many different kinds of

behavior of varying degrees of seriousness. . . . At the same time,
the Government in a CCE case may well seek to prove that a
defendant, charged as a drug kingpin, has been involved in numerous
underlying violations. The first of these considerations increases the
likelihood that treating violations simply as alternative means, by
permitting a jury to avoid discussion of the specific factual details of
each violation, will cover up wide disagreement among the jurors
about just what the defendant did, and did not, do. The second
consideration significantly aggravates the risk (present at least to a
small degree whenever multiple means are at issue) that jurors,
unless required to focus upon specific factual detail, will fail to do
so, simply concluding from testimony, say, of bad reputation, that
where there is smoke there must be fire.
(Richardson, supra, 526 U.S. at p. 819 (emphasis added).)
These reasons are doubly applicable when the issue is life or death. Where a
statute (like California’s) permits a wide range of possible aggravators and the
prosecutor offers up multiple theories or instances of alleged aggravation, unless
the jury is required to agree unanimously as to the existence of each aggravator to
be weighed on death’s side of the scale, there is a grave risk (a) that the ultimate
verdict will cover up wide disagreement among the jurors about just what the
defendant did and didn’t do and (b) that the jurors, not being forced to do so, will
226
fail to focus upon specific factual detail and simply conclude from a wide array of
proffered aggravators that where there is smoke there must be fire, and on that
basis conclude that death is the appropriate sentence. The risk of such an
inherently unreliable decision-making process is unacceptable in a capital context.
The ultimate decision of whether or not to impose death is indeed a “moral”
and “normative” decision. (People v. Hawthorne, supra; People v. Hayes (1990)
52 Cal.3d 577, 643.) However, Ring makes clear that the finding of one or more
aggravating circumstance that is a prerequisite to considering whether death is the
appropriate sentence in a California capital case is precisely the type of factual
determinations for which appellant is entitled to unanimous jury findings beyond a
reasonable doubt.
2. THE DUE PROCESS AND THE CRUEL AND UNUSUAL

PUNISHMENT CLAUSES OF THE STATE AND FEDERAL
CONSTITUTION REQUIRE THAT THE JURY IN A CAPITAL CASE
BE INSTRUCTED THAT THEY MAY IMPOSE A SENTENCE OF
DEATH ONLY IF THEY ARE PERSUADED BEYOND A
REASONABLE DOUBT THAT THE AGGRAVATING FACTORS
OUTWEIGH THE MITIGATING FACTORS AND THAT DEATH IS
THE APPROPRIATE PENALTY
a. FACTUAL DETERMINATIONS
The outcome of a judicial proceeding necessarily depends on an appraisal
of the facts. “[T]he procedures by which the facts of the case are determined
assume an importance fully as great as the validity of the substantive rule of law to
be applied. And the more important the rights at stake the more important must be
227
the procedural safeguards surrounding those rights.” (Speiser v. Randall (1958)
357 U.S. 513, 520-521.)
The primary procedural safeguard implanted in the criminal justice system
relative to fact assessment is the allocation and degree of the burden of proof. The
burden of proof represents the obligation of a party to establish a particular degree
of belief as to the contention sought to be proved. In criminal cases the burden is
rooted in the Due Process Clause of the Fifth and Fourteenth Amendment. (In re
Winship (1970) 397 U.S. 358, 364.) In capital cases “the sentencing process, as
well as the trial itself, must satisfy the requirements of the Due Process Clause.”
(Gardner v. Florida (1977) 430 U.S. 349, 358; see also Presnell v. Georgia (1978)
439 U.S. 14.) Aside from the question of the applicability of the Sixth
Amendment to California’s penalty phase proceedings, the burden of proof for
factual determinations during the penalty phase of a capital trial, when life is at
stake, must be beyond a reasonable doubt.
b. IMPOSITION OF LIFE OR DEATH
The requirements of due process relative to the burden of persuasion
generally depend upon the significance of what is at stake and the social goal of
reducing the likelihood of erroneous results. (Winship, supra, 397 U.S. at
363-364; see also Addington v. Texas (1979) 441 U.S. 418, 423.) The allocation of
a burden of persuasion symbolizes to society in general and the jury in particular
228
the consequences of what is to be decided. In this sense, it reflects a belief that the
more serious the consequences of the decision being made, the greater the
necessity that the decision-maker reach “a subjective state of certitude” that the
decision is appropriate. Winship, supra, 397 U.S. at 364. Selection of a
constitutionally appropriate burden of persuasion is accomplished by weighing
“three distinct factors . . . the private interests affected by the proceeding; the risk
of error created by the State’s chosen procedure; and the countervailing
governmental interest supporting use of the challenged procedure.” (Stantosky v.
Kramer (1982) 455 U.S. 743, 755; see also Matthews v. Eldridge (1976) 424 U.S.
319, 334-335.)
Looking at the “private interests affected by the proceeding,” it is
impossible to conceive of an interest more significant than that of human life. If
personal liberty is “an interest of transcending value,” Speiser, supra, 375 U.S. at
525, how much more transcendent is human life itself! Far less valued interests
are protected by the requirement of proof beyond a reasonable doubt before they
may be extinguished. See Winship, supra (adjudication of juvenile delinquency);
People v. Feagley (1975) 14 Cal.3d 338 (commitment as mentally disordered sex
offender); People v. Burnick (1975) 14 Ca1.3d 306 (same); People v.
Thomas(1977) 19 Ca1.3d 630 (commitment as narcotic addict); Conservatorship
of Roulet (1979) 23 Ca1.3d 219 (appointment of conservator). The decision to
229
take a person’s life must be made under no less demanding a standard. Due
process mandates that our social commitment to the sanctity of life and the dignity
of the individual be incorporated into the decision-making process by imposing
upon the State the burden to prove beyond a reasonable doubt that death is
appropriate.
As to the “risk of error created by the State’s chosen procedure” Stantosky,
supra, 455 U.S. at 755, the United States Supreme Court reasoned:
[I]n any given proceeding, the minimum standard of proof tolerated

by the due process requirement reflects not only the weight of the
private and public interests affected, but also a societal judgment
about how the risk of error should be distributed between the
litigants. . . . When the State brings a criminal action to deny a
defendant liberty or life, . . . ‘the interests of the defendant are of
such magnitude that historically and without any explicit
constitutional requirement they have been protected by standards of
proof designed to exclude as nearly as possible the likelihood of an
erroneous judgment.’ [citation omitted.] The stringency of the
‘beyond a reasonable doubt’ standard bespeaks the ‘weight and
gravity’ of the private interest affected [citation omitted], society’s
interest in avoiding erroneous convictions, and a judgment that those
interests together require that ‘society impos[e] almost the entire risk
of error upon itself.’”
(455 U.S. at 756.)
Moreover, there is substantial room for error in the procedures for deciding
between life and death. The penalty proceedings are much like the child neglect
proceedings dealt with in Stantosky. They involve “imprecise substantive
standards that leave determinations unusually open to the subjective values of the
230
[jury].” Stantosky, supra, 455 U.S. at 763. Nevertheless, imposition of a burden
of proof beyond a reasonable doubt can be effective in reducing this risk of error,
since that standard has long proven its worth as “a prime instrument for reducing
the risk of convictions resting on factual error.” Winship, supra, 397 U.S. at 363.
The final Stantosky benchmark, “the countervailing governmental interest
supporting use of the challenged procedure,” also calls for imposition of a
reasonable doubt standard. Adoption of that standard would not deprive the State
of the power to impose capital punishment; it would merely serve to maximize
“reliability in the determination that death is the appropriate punishment in a
specific case.” (Woodson, supra, 428 U.S. at 305.) The only risk of error suffered
by the State under the stricter burden of persuasion would be the possibility that a
defendant, otherwise deserving of being put to death, would instead be confined in
prison for the rest of his life without possibility of parole.
The need for reliability is especially compelling in capital cases. Beck v.
Alabama (1980) 447 U.S. 625, 637-638.) No greater interest is ever at stake; see
Monge v. California (1998) 524 U.S. 721, 732 [“the death penalty is unique in its
severity and its finality”].) In Monge, the U.S. Supreme Court expressly applied
the Stantosky rationale for the beyond-a-reasonable-doubt burden of proof
requirement to capital sentencing proceedings: “[I]n a capital sentencing
proceeding, as in a criminal trial, ‘the interests of the defendant [are] of such
231
magnitude that . . . they have been protected by standards of proof designed to
exclude as nearly as possible the likelihood of an erroneous judgment.’
([Bullington v. Missouri,] 451 U.S. at p. 441 (quoting Addington v. Texas, 441
U.S. 418, 423-424, 60 L.Ed.2d 323, 99 S.Ct. 1804 (1979).)” (Monge v. California,
supra, 524 U.S. at p. 732 (emphasis added).) The sentencer of a person facing the
death penalty is required by due process and Eighth Amendment constitutional
guarantees to be convinced beyond a reasonable doubt not only that the factual
bases for its decision are true but that death is the appropriate sentence.
3. EVEN IF PROOF BEYOND A REASONABLE DOUBT WERE NOT

THE CONSTITUTIONALLY REQUIRED BURDEN OF PERSUASION
FOR FINDING (1) THAT AN AGGRAVATING FACTOR EXISTS,
(2) THAT THE AGGRAVATING FACTORS OUTWEIGH THE
MITIGATING FACTORS, AND (3) THAT DEATH IS THE
APPROPRIATE SENTENCE, PROOF BY A PREPONDERANCE OF
THE EVIDENCE WOULD BE CONSTITUTIONALLY COMPELLED
AS TO EACH SUCH FINDING
A burden of proof of at least a preponderance is required as a matter of due
process because that has been the minimum burden historically permitted in any
sentencing proceeding. Judges have never had the power to impose an enhanced
sentence without the firm belief that whatever considerations underlay such a
sentencing decision had been at least proved to be true more likely than not. They
have never had the power that a California capital sentencing jury has been
accorded, which is to find “proof” of aggravating circumstances on any
considerations they want, without any burden at all on the prosecution, and
232
sentence a person to die based thereon. The absence of any historical authority for
a sentencer to impose sentence based on aggravating circumstances found with
proof less than 51% – even 20%, or 10%, or 1% – is itself ample evidence of the
unconstitutionality of failing to assign at least a preponderance of the evidence
burden of proof. (See, e.g., Griffin v. United States (1991) 502 U.S. 46, 51 [112
S.Ct. 466, 116 L.Ed.2d 371] [historical practice given great weight in
constitutionality determination]; Murray’s Lessee v. Hoboken Land and
Improvement Co., supra, 59 U.S. (18 How.) at pp. 276-277 [due process
determination informed by historical settled usages].)
Finally, Evidence Code section 520 provides: “The party claiming that a
person is guilty of crime or wrongdoing has the burden of proof on that issue.”
There is no statute to the contrary. In any capital case, any aggravating factor will
relate to wrongdoing; those that are not themselves wrongdoing (such as, for
example, age when it is counted as a factor in aggravation) are still deemed to
aggravate other wrongdoing by a defendant. Section 520 is a legitimate state
expectation in adjudication and is thus constitutionally protected under the
Fourteenth Amendment. (Hicks v. Oklahoma, supra, 447 U.S. at p. 346.)
Accordingly, appellant respectfully suggests that People v. Hayes – in
which this Court did not consider the applicability of section 520 – is erroneously
decided. The word “normative” applies to courts as well as jurors, and there is a
233
long judicial history of requiring that decisions affecting life or liberty be based on
reliable evidence that the decision-maker finds more likely than not to be true. For
all of these reasons, appellant’s jury should have been instructed that the State had
the burden of persuasion regarding the existence of any factor in aggravation, and
the appropriateness of the death penalty. Sentencing appellant to death without
adhering to the procedural protection afforded by state law violated federal due
process. (Hicks v. Oklahoma, supra, 447 U.S. at p. 346.)
The failure to articulate a proper burden of proof is constitutional error
under the Sixth, Eighth, and Fourteenth Amendments and is reversible per se.
(Sullivan v. Louisiana, supra.) That should be the result here, too.
4. SOME BURDEN OF PROOF IS REQUIRED IN ORDER TO

ESTABLISH A TIE- BREAKING RULE AND ENSURE EVEN-
HANDEDNESS
This Court has held that a burden of persuasion is inappropriate given the
normative nature of the determinations to be made in the penalty phase. (People v.
Hayes, supra, 52 Cal.3d at p. 643.) However, even with a normative
determination to make, it is inevitable that one or more jurors on a given jury will
find themselves torn between sparing and taking the defendant’s life, or between
finding and not finding a particular aggravator. A tie-breaking rule is needed to
ensure that such jurors – and the juries on which they sit – respond in the same
way, so the death penalty is applied evenhandedly. “Capital punishment [must] be
234
imposed fairly, and with reasonable consistency, or not at all.” (Eddings v.
Oklahoma, supra, 455 U.S. at p. 112.) It is unacceptable – “wanton” and
“freakish” (Proffitt v. Florida, supra, 428 U.S. at p. 260) – the “height of
arbitrariness” (Mills v. Maryland (1988) 486 U.S. 367, 374) – that one defendant
should live and another die simply because one juror or jury can break a tie in
favor of a defendant and another can do so in favor of the State on the same facts,
with no uniformly applicable standards to guide either.
5. EVEN IF THERE COULD CONSTITUTIONALLY BE NO BURDEN

OF PROOF, THE TRIAL COURT ERRED IN FAILING TO
INSTRUCT THE JURY TO THAT EFFECT
If in the alternative it were permissible not to have any burden of proof at
all, the trial court erred prejudicially by failing to articulate that to the jury.
The burden of proof in any case is one of the most fundamental concepts in
our system of justice, and any error in articulating it is automatically reversible
error. (Sullivan v. Louisiana, supra.) The reason is obvious: Without an
instruction on the burden of proof, jurors may not use the correct standard, and
each may instead apply the standard he or she believes appropriate in any given
case.
The same is true if there is no burden of proof but the jury is not so told.
Jurors who believe the burden should be on the defendant to prove mitigation in
235
penalty phase would continue to believe that. Such jurors do exist.73 This raises
the constitutionally unacceptable possibility a juror would vote for the death
penalty because of a misallocation of what is supposed to be a nonexistent burden
of proof. That renders the failure to give any instruction at all on the subject a
violation of the Sixth, Eighth, and Fourteenth Amendments, because the
instructions given fail to provide the jury with the guidance legally required for
administration of the death penalty to meet constitutional minimum standards. The
error in failing to instruct the jury on what the proper burden of proof is, or is not,
is reversible per se. (Sullivan v. Louisiana, supra.)
6. CALIFORNIA LAW VIOLATES THE SIXTH, EIGHTH AND

FOURTEENTH AMENDMENTS TO THE UNITED STATES
CONSTITUTION BY FAILING TO REQUIRE THAT THE JURY
BASE ANY DEATH SENTENCE ON WRITTEN FINDINGS
REGARDING AGGRAVATING FACTORS
The failure to require written or other specific findings by the jury regarding
aggravating factors deprived appellant of his federal due process and Eighth
Amendment rights to meaningful appellate review. (California v. Brown, supra,
479 U.S. at p. 543; Gregg v. Georgia, supra, 428 U.S. at p. 195.) And especially
given that California juries have total discretion without any guidance on how to
weigh potentially aggravating and mitigating circumstances (People v. Fairbank,
73
See, e.g., People v. Dunkle, No. S014200, RT 1005, cited in
Appellant’s Opening Brief in that case at page 696.
236
supra), there can be no meaningful appellate review without at least written
findings because it will otherwise be impossible to “reconstruct the findings of the
state trier of fact.” (See Townsend v. Sain (1963) 372 U.S. 293, 313-316.) Of
course, without such findings it cannot be determined that the jury unanimously
agreed beyond a reasonable doubt on any aggravating factors, or that such factors
outweighed mitigating factors beyond a reasonable doubt.
This Court has held that the absence of written findings does not render the
1978 death penalty scheme unconstitutional. (People v. Fauber (1992) 2 Cal.4th
792, 859.) Ironically, such findings are otherwise considered by this Court to be
an element of due process so fundamental that they are even required at parole
suitability hearings. A convicted prisoner who believes that he or she was
improperly denied parole must proceed via a petition for writ of habeas corpus and
is required to allege with particularity the circumstances constituting the State’s
wrongful conduct and show prejudice flowing from that conduct. (In re Sturm
(1974) 11 Cal.3d 258.) The parole board is therefore required to state its reasons
for denying parole: “It is unlikely that an inmate seeking to establish that his
application for parole was arbitrarily denied can make necessary allegations with
the requisite specificity unless he has some knowledge of the reasons therefor.”
237
(Id., 11 Cal.3d at p. 267.)74 The same analysis applies to the far graver decision to
put someone to death. (See also People v. Martin (1986) 42 Cal.3d 437, 449-450
[statement of reasons essential to meaningful appellate review].)
In a non-capital case, the sentencer is required by California law to state on
the record the reasons for the sentence choice. (Ibid.; section 1170, subd. (c).)
Under the Fifth, Sixth, Eighth, and Fourteenth Amendments, capital defendants are
entitled to more rigorous protections than those afforded non-capital defendants.
(Harmelin v. Michigan, supra, 501 U.S. at p. 994.) Since providing more
protection to a non-capital defendant than a capital defendant would violate the
equal protection clause of the Fourteenth Amendment (see generally Myers v. Ylst
(9th Cir. 1990) 897 F.2d 417, 421; Ring v. Arizona, supra), the sentencer in a
capital case is constitutionally required to identify for the record in some fashion
the aggravating circumstances found.
Written findings are essential for a meaningful review of the sentence
imposed. In Mills v. Maryland, 486 U.S. 367, for example, the written-finding
requirement in Maryland death cases enabled the Supreme Court not only to
74
A determination of parole suitability shares many characteristics
with the decision of whether or not to impose the death penalty. In both cases,
the subject has already been convicted of a crime, and the decision-maker must
consider questions of future dangerousness, the presence of remorse, the nature
of the crime, etc., in making its decision. See Title 15, California Code of
Regulations, section 2280 et seq.
238
identify the error that had been committed under the prior state procedure, but to
gauge the beneficial effect of the newly implemented state procedure. (See, e.g.,
id. at p. 383, fn. 15.) The fact that the decision to impose death is “normative”
(People v. Hayes, supra, 52 Cal.3d at p. 643) and “moral” (People v. Hawthorne,
supra, 4 Cal.4th at p. 79) does not mean that its basis cannot be, and should not be,
articulated.
The importance of written findings is recognized throughout this country.
Of the thirty-four post-Furman state capital sentencing systems, twenty-five
require some form of such written findings, specifying the aggravating factors
upon which the jury has relied in reaching a death judgment. Nineteen of these
states require written findings regarding all penalty phase aggravating factors
found true, while the remaining six require a written finding as to at least one
aggravating factor relied on to impose death.75
75
See Ala. Code §§ 13A-5-46(f), 47(d) (1982); Ariz. Rev. Stat. Ann.
§ 13-703(d) (1989); Ark. Code Ann. § 5-4-603(a) (Michie 1987); Conn. Gen.
Stat. Ann. § 53a-46a(e) (West 1985); State v. White (Del. 1978) 395 A.2d 1082,
1090; Fla. Stat. Ann. § 921.141(3) (West 1985); Ga. Code Ann. § 17-10-30(c)
(Harrison 1990); Idaho Code § 19-2515(e) (1987); Ky. Rev. Stat. Ann.
§ 532.025(3) (Michie 1988); La. Code Crim. Proc. Ann. art. 905.7 (West 1993);
Md. Ann. Code art. 27, § 413(I) (1992); Miss. Code Ann. § 99-19-103 (1993);
Mont. Code Ann. § 46-18-306 (1993); Neb. Rev. Stat. § 29-2522 (1989); Nev.
Rev. Stat. Ann. § 175.554(3) (Michie 1992); N.H. Rev. Stat. Ann. § 630:5(IV)
(1992); N.M. Stat. Ann. § 31-20A-3 (Michie 1990); Okla. Stat. Ann. tit. 21,
§ 701.11 (West 1993); 42 Pa. Cons. Stat. Ann. § 9711 (1982); S.C. Code Ann.
§ 16-3-20(c) (Law. Co-op. 1992); S.D. Codified Laws Ann. § 23A-27A-5 (1988);
Tenn. Code Ann. § 39-13-204(g) (1993); Tex. Crim. Proc. Code Ann.
239
Further, written findings are essential to ensure that a defendant subjected
to a capital penalty trial under Penal Code section 190.3 is afforded the protections
guaranteed by the Sixth Amendment right to trial by jury. As Ring v. Arizona has
made clear, the Sixth Amendment guarantees a defendant the right to have a
unanimous jury make any factual findings prerequisite to imposition of a death
sentence – including, under Penal Code section 190.3, the finding of an
aggravating circumstance (or circumstances) and the finding that these aggravators
outweigh any and all mitigating circumstances. Absent a requirement of written
findings as to the aggravating circumstances relied upon, the California sentencing
scheme provides no way of knowing whether the jury has made the unanimous
findings required under Ring and provides no instruction or other mechanism to
even encourage the jury to engage in such a collective fact-finding process. The
failure to require written findings thus violated not only federal due process and
the Eighth Amendment but also the right to trial by jury guaranteed by the Sixth
Amendment.
§ 37.071(c) (West 1993); Va. Code Ann. § 19.2-264.4(D) (Michie 1990); Wyo.
Stat. § 6-2-102(e) (1988).
240
7. CALIFORNIA’ S DEATH PENALTY STATUTE AS INTERPRETED
BY THE CALIFORNIA SUPREME COURT FORBIDS INTER- CASE
PROPORTIONALITY REVIEW , THEREBY GUARANTEEING
ARBITRARY, DISCRIMINATORY, OR DISPROPORTIONATE
IMPOSITIONS OF THE DEATH PENALTY
The Eighth Amendment to the United States Constitution forbids
punishments that are cruel and unusual. The jurisprudence that has emerged
applying this ban to the imposition of the death penalty has required that death
judgments be proportionate and reliable. The notions of reliability and
proportionality are closely related. Part of the requirement of reliability, in law as
well as science, is “‘that the [aggravating and mitigating] reasons present in one
case will reach a similar result to that reached under similar circumstances in
another case.’” (Barclay v. Florida (1976) 463 U.S. 939, 954 (plurality opinion,
alterations in original, quoting Proffitt v. Florida (1976) 428 U.S. 242, 251
(opinion of Stewart, Powell, and Stevens, JJ.)).)
One commonly utilized mechanism for helping to ensure reliability and
proportionality in capital sentencing is comparative proportionality review – a
procedural safeguard this Court has eschewed. In Pulley v. Harris (1984) 465 U.S.
37, 51, the high court, while declining to hold that comparative proportionality
review is an essential component of every constitutional capital sentencing
scheme, did note the possibility that “there could be a capital sentencing scheme so
lacking in other checks on arbitrariness that it would not pass constitutional muster
241
without comparative proportionality review.” California’s 1978 death penalty
statute, as drafted and as construed by this Court and applied in fact, has become
such a sentencing scheme. The high court in Harris, in contrasting the 1978
statute with the 1977 law which the court upheld against a lack-of-comparative-
proportionality-review challenge, itself noted that the 1978 law had “greatly
expanded” the list of special circumstances. (Harris, 465 U.S. at p. 52, fn. 14.)
As we have seen, that greatly expanded list fails to meaningfully narrow the
pool of death-eligible defendants and hence permits the same sort of arbitrary
sentencing as the death penalty schemes struck down in Furman v. Georgia, supra.
(See section A of this Argument, ante.) Further, the statute lacks numerous other
procedural safeguards commonly utilized in other capital sentencing jurisdictions
(see section C of this Argument), and the statute’s principal penalty phase
sentencing factor has itself proved to be an invitation to arbitrary and capricious
sentencing (see section B of this Argument). The lack of comparative
proportionality review has deprived California’s sentencing scheme of the only
mechanism that might have enabled it to “pass constitutional muster.”
Further, it should be borne in mind that the death penalty may not be
imposed when actual practice demonstrates that the circumstances of a particular
crime or a particular criminal rarely lead to execution. Then, no such crimes
warrant execution, and no such criminals may be executed. (See Gregg v.
242
Georgia, supra, 428 U.S. at p. 206.) A demonstration of such a societal evolution
is not possible without considering the facts of other cases and their outcomes.
The U.S. Supreme Court regularly considers other cases in resolving claims that
the imposition of the death penalty on a particular person or class of persons is
disproportionate – even cases from outside the United States. (See Atkins v.
Virginia (2002) 122 S.Ct. 2248, 2249; Thompson v. Oklahoma (1988) 487 U.S.
815, 821, 830-831; Enmund v. Florida (1982) 458 U.S. 782, 796, fn. 22; Coker v.
Georgia (1977) 433 U.S. 584, 596.)
Twenty-nine of the thirty-four states that have reinstated capital punishment
require comparative, or “inter-case,” appellate sentence review. By statute
Georgia requires that the Georgia Supreme Court determine whether “. . . the
sentence is disproportionate compared to those sentences imposed in similar
cases.” (Ga. Stat. Ann. § 27-2537(c).) The provision was approved by the United
States Supreme Court, holding that it guards “. . . further against a situation
comparable to that presented in Furman [v. Georgia (1972) 408 U.S. 238, 33 L.Ed
346, 92 S.Ct. 2726] . . .” (Gregg v. Georgia (1976) 428 U.S. 153, 198.) Toward
the same end, Florida has judicially “. . . adopted the type of proportionality review
mandated by the Georgia statute.” (Profitt v. Florida (1976) 428 U.S. 242, 259, 49
L.Ed.2d 913, 96 S.Ct. 2960.) Twenty states have statutes similar to that of
243
Georgia, and seven have judicially instituted similar review.76
Section 190.3 does not require that either the trial court or this Court
undertake a comparison between this and other similar cases regarding the relative
proportionality of the sentence imposed, i.e., inter-case proportionality review.
(See People v. Fierro, supra, 1 Cal.4th at p. 253.) The statute also does not forbid
it. The prohibition on the consideration of any evidence showing that death
sentences are not being charged or imposed on similarly situated defendants is
strictly the creation of this Court. (See, e.g., People v. Marshall (1990) 50 Cal.3d
907, 946-947.)
76
See Ala. Code § 13A-5-53(b)(3) (1982); Conn. Gen. Stat. Ann. §
53a-46b(b)(3) (West 1993); Del. Code Ann. tit. 11, § 4209(g)(2) (1992); Ga.
Code Ann. § 17-10-35(c)(3) (Harrison 1990); Idaho Code § 19-2827(c)(3)
(1987); Ky. Rev. Stat. Ann. § 532.075(3) (Michie 1985); La. Code Crim. Proc.
Ann. art. 905.9.1(1)(c) (West 1984); Miss. Code Ann. § 99-19-105(3)(c) (1993);
Mont. Code Ann. § 46-18-310(3) (1993); Neb. Rev. Stat. §§ 29-2521.01, 03, 29-
2522(3) (1989); Nev. Rev. Stat. Ann. § 177.055(d) (Michie 1992); N.H. Rev.
Stat. Ann. § 630:5(XI)(c) (1992); N.M. Stat. Ann. § 31-20A-4(c)(4) (Michie
1990); N.C. Gen. Stat. § 15A-2000(d)(2) (1983); Ohio Rev. Code Ann. §
2929.05(A) (Baldwin 1992); 42 Pa. Cons. Stat. Ann. § 9711(h)(3)(iii) (1993);
S.C. Code Ann. § 16-3-25(C)(3) (Law. Co-op. 1985); S.D. Codified Laws Ann. §
23A-27A-12(3) (1988); Tenn. Code Ann. § 39-13-206(c)(1)(D) (1993); Va. Code
Ann. § 17.110.1C(2) (Michie 1988); Wash. Rev. Code Ann. § 10.95.130(2)(b)
(West 1990); Wyo. Stat. § 6-2-103(d)(iii) (1988).
Also see State v. Dixon (Fla. 1973) 283 So.2d 1, 10; Alford v. State (Fla.
1975) 307 So.2d 433,444; People v. Brownell (Ill. 1980) 404 N.E.2d 181,197;
Brewer v. State (Ind. 1981) 417 N.E.2d 889, 899; State v. Pierre (Utah 1977) 572
P.2d 1338, 1345; State v. Simants (Neb. 1977) 250 N.W.2d 881, 890 [comparison
with other capital prosecutions where death has and has not been imposed]; State
v. Richmond (Ariz. 1976) 560 P.2d 41,51; Collins v. State (Ark. 1977) 548
S.W.2d 106,121.
244
Given the tremendous reach of the special circumstances that make one
eligible for death as set out in section 190.2 – a significantly higher percentage of
murderers than those eligible for death under the 1977 statute considered in Pulley
v. Harris – and the absence of any other procedural safeguards to ensure a reliable
and proportionate sentence, this Court’s categorical refusal to engage in inter-case
proportionality review now violates the Eighth Amendment.
Furman raised the question of whether, within a category of crimes or
criminals for which the death penalty is not inherently disproportionate, the death
penalty has been fairly applied to the individual defendant and his or her
circumstances. California’s 1978 death penalty scheme and system of case review
permits the same arbitrariness and discrimination condemned in Furman in
violation of the Eighth and Fourteenth Amendments. (Gregg v. Georgia, supra,
428 U.S. at p. 192, citing Furman v. Georgia, supra, 408 U.S. at p. 313 (White, J.,
conc.).) The failure to conduct inter-case proportionality review also violates the
Fifth, Sixth, Eighth, and Fourteenth Amendment prohibitions against proceedings
conducted in a constitutionally arbitrary, unreviewable manner or which are
skewed in favor of execution.
245
8. THE PROSECUTION MAY NOT RELY IN THE PENALTY PHASE
ON UNADJUDICATED CRIMINAL ACTIVITY; FURTHER, EVEN IF
IT WERE CONSTITUTIONALLY PERMISSIBLE FOR THE
PROSECUTOR TO DO SO , SUCH ALLEGED CRIMINAL ACTIVITY
COULD NOT CONSTITUTIONALLY SERVE AS A FACTOR IN
AGGRAVATION UNLESS FOUND TO BE TRUE BEYOND A
REASONABLE DOUBT BY A UNANIMOUS JURY
Any use of unadjudicated criminal activity by the jury during the sentencing
phase, as outlined in section 190.3(b), violates due process and the Fifth, Sixth,
Eighth, and Fourteenth Amendments, rendering a death sentence unreliable. (See,
e.g., Johnson v. Mississippi (1988) 486 U.S. 578, 108 S.Ct. 1981, 100 L.Ed.2d
575; State v. Bobo (Tenn. 1987) 727 S.W.2d 945.) Here, the prosecution presented
extensive evidence regarding unadjudicated criminal activity allegedly committed
by appellant, including evidence of 1) an ax assault on Tony Schmidt on May 27,
1993, 2) shooting at the residence of Gustavo Rosas on North Bonnie Brae Street
on October 3, 1994, 3) an assault on Duk An in county jail on December 2, 1994,
and 4) an assault on Enrique Diaz in county jail on March 6, 1997. (Ante, pp. 26-
32.) The prosecution devoted a considerable portion of its closing summation to
arguing the unadjudicated offenses. (RT 3372-3373, 3376-3378, 3380-3381,
3385-3387.)
The United States Supreme Court’s recent decisions in Ring v. Arizona,
supra, and Apprendi v. New Jersey, supra, confirm that under the Due Process
Clause of the Fourteenth Amendment and the jury trial guarantee of the Sixth
246
Amendment, all of the findings prerequisite to a sentence of death must be made
beyond a reasonable doubt by a jury acting as a collective entity. (Ante, § XVII.)
The application of Ring and Apprendi to California’s capital sentencing scheme
requires that the existence of any aggravating factors relied upon to impose a death
sentence be found beyond a reasonable doubt by a unanimous jury. (Ante, §
XIX.C.1.) Thus, even if it were constitutionally permissible to rely upon alleged
unadjudicated criminal activity as a factor in aggravation, such alleged criminal
activity would have to have been found beyond a reasonable doubt by a unanimous
jury. Appellant’s jury was not instructed on the need for such a unanimous
finding; nor is such an instruction generally provided for under California’s
sentencing scheme.
9. THE USE OF RESTRICTIVE ADJECTIVES IN THE LIST OF

POTENTIAL MITIGATING FACTORS IMPERMISSIBLY ACTED AS
BARRIERS TO CONSIDERATION OF MITIGATION BY
APPELLANT’ S JURY
The inclusion in the list of potential mitigating factors of such adjectives as
“extreme” (see factors (d) and (g)) and “substantial” (see factor (g)) acted as
barriers to the consideration of mitigation in violation of the Fifth, Sixth, Eighth,
and Fourteenth Amendments. (Mills v. Maryland (1988) 486 U.S. 367; Lockett v.
Ohio (1978) 438 U.S. 586.)
247
10. THE FAILURE TO INSTRUCT THAT STATUTORY MITIGATING
FACTORS WERE RELEVANT SOLELY AS POTENTIAL
MITIGATORS PRECLUDED A FAIR, RELIABLE, AND
EVENHANDED ADMINISTRATION OF THE CAPITAL SANCTION
In accordance with customary state court practice, nothing in the
instructions advised the jury which of the listed sentencing factors were
aggravating, which were mitigating, or which could be either aggravating or
mitigating depending upon the jury’s appraisal of the evidence. As a matter of
state law, however, each of the factors introduced by a prefatory “whether or not”
– factors (d), (e), (f), (g), (h), and (j) – were relevant solely as possible mitigators
(People v. Hamilton (1989) 48 Cal.3d 1142, 1184; People v. Edelbacher (1989) 47
Cal.3d 983, 1034; People v. Lucero (1988) 44 Cal.3d 1006, 1031, fn.15; People v.
Melton (1988) 44 Cal.3d 713, 769-770; People v. Davenport (1985) 41 Cal.3d
247, 288-289). The jury, however, was left free to conclude that a “not” answer as
to any of these “whether or not” sentencing factors could establish an aggravating
circumstance and was thus invited to aggravate the sentence upon the basis of non-
existent and/or irrational aggravating factors, thereby precluding the reliable,
individualized capital sentencing determination required by the Eighth and
Fourteenth Amendments. (Woodson v. North Carolina (1976) 428 U.S. 280, 304;
Zant v. Stephens (1983) 462 U.S. 862, 879; Johnson v. Mississippi (1988) 486 U.S.
578, 584-585.)
248
The likelihood that the jury in appellant’s case would have been misled as
to the potential significance of the “whether or not” sentencing factors was
heightened by the prosecutor’s misleading and erroneous statements during penalty
phase closing argument that the defense had not presented any evidence relevant to
factors (d), (e), (f), (g), (h), and/or (j). (RT 3382.) It is thus likely that appellant’s
jury aggravated his sentence upon the basis of what were, as a matter of state law,
non-existent factors and did so believing that the State – as represented by the trial
court – had identified them as potential aggravating factors supporting a sentence
of death. This violated not only state law, but the Eighth Amendment, for it made
it likely that the jury treated appellant “as more deserving of the death penalty than
he might otherwise be by relying upon . . . illusory circumstance[s].” (Stringer v.
Black (1992) 503 U.S. 222, 235.)
Even without such misleading argument, the impact on the sentencing
calculus of a defendant’s failure to adduce evidence sufficient to establish
mitigation under factor (d), (e), (f), (g), (h), or (j) will vary from case to case
depending upon how the sentencing jury interprets the “law” conveyed by the
CALJIC pattern instruction. In some cases the jury may construe the pattern
instruction in accordance with California law and understand that if the mitigating
circumstance described under factor (d), (e), (f), (g), (h), or (j) is not proven, the
factor simply drops out of the sentencing calculus. In other cases, the jury may
249
construe the “whether or not” language of the CALJIC pattern instruction as
giving aggravating relevance to a “not” answer and accordingly treat each failure
to prove a listed mitigating factor as establishing an aggravating circumstance.
The result is that from case to case, even with no difference in the evidence,
sentencing juries will likely discern dramatically different numbers of aggravating
circumstances because of differing constructions of the CALJIC pattern
instruction. In effect, different defendants, appearing before different juries, will
be sentenced on the basis of different legal standards. This is unfair and
constitutionally unacceptable. Capital sentencing procedures must protect against
“‘arbitrary and capricious action’” (Tuilaepa v. California (1994) 512 U.S. 967,
973 quoting Gregg v. Georgia (1976) 428 U.S. 153, 189 (joint opinion of Stewart,
Powell, and Stevens, JJ.)) and help ensure that the death penalty is evenhandedly
applied. (Eddings v. Oklahoma, supra, 455 U.S. at p. 112.)
D. THE CALIFORNIA SENTENCING SCHEME VIOLATES THE EQUAL

PROTECTION CLAUSE OF THE FEDERAL CONSTITUTION BY DENYING
PROCEDURAL SAFEGUARDS TO CAPITAL DEFENDANTS WHICH ARE
AFFORDED TO NON- CAPITAL DEFENDANTS
As noted in the preceding arguments, the U.S. Supreme Court has
repeatedly directed that a greater degree of reliability is required when death is to
be imposed and that courts must be vigilant to ensure procedural fairness and
accuracy in fact-finding. (See, e.g., Monge v. California, supra, 524 U.S. at pp.
731-732.) Despite this directive California’s death penalty scheme provides
250
significantly fewer procedural protections for persons facing a death sentence than
are afforded persons charged with non-capital crimes. This differential treatment
violates the constitutional guarantee of equal protection of the laws.
Equal protection analysis begins with identifying the interest at stake. In
1975, Chief Justice Wright wrote for a unanimous court that “personal liberty is a
fundamental interest, second only to life itself, as an interest protected under both
the California and the United States Constitutions.” (People v. Olivas (1976) 17
Cal.3d 236, 251 (emphasis added). “Aside from its prominent place in the due
process clause, the right to life is the basis of all other rights. . . . It encompasses,
in a sense, ‘the right to have rights,’ Trop v. Dulles, 356 U.S. 86, 102 (1958).”
(Commonwealth v. O’Neal (1975) 327 N.E.2d 662, 668, 367 Mass 440, 449.)
If the interest identified is “fundamental,” then courts have “adopted an
attitude of active and critical analysis, subjecting the classification to strict
scrutiny.” (Westbrook v. Milahy (1970) 2 Cal.3d 765, 784-785.) A state may not
create a classification scheme which affects a fundamental interest without
showing that it has a compelling interest which justifies the classification and that
the distinctions drawn are necessary to further that purpose. (People v. Olivas,
supra; Skinner v. Oklahoma (1942) 316 U.S. 535, 541.)
The State cannot meet this burden. In this case, the equal protection
guarantees of the state and federal Constitutions must apply with greater force, the
251
scrutiny of the challenged classification be more strict, and any purported
justification by the State of the discrepant treatment be even more compelling
because the interest at stake is not simply liberty, but life itself. To the extent that
there may be differences between capital defendants and non-capital felony
defendants, those differences justify more, not fewer, procedural protections
designed to make a sentence more reliable.
In Prieto,77 as in Snow,78 this Court analogized the process of determining
whether to impose death to a sentencing court’s traditionally discretionary decision
to impose one prison sentence rather than another. If that were so, then California
is in the unique position of giving persons sentenced to death significantly fewer
procedural protections than a person being sentenced to prison for receiving stolen
property.
An enhancing allegation in a California non-capital case is a finding that
must, by law, be unanimous. (See, e.g., sections 1158, 1158a.) When a California
judge is considering which sentence is appropriate, the decision is governed by
77
“As explained earlier, the penalty phase determination in California
is normative, not factual. It is therefore analogous to a sentencing court’s
traditionally discretionary decision to impose one prison sentence rather than
another.” (Prieto, 30 Cal.4th at 275.)
78
“The final step in California capital sentencing is a free weighing
of all the factors relating to the defendant’s culpability, comparable to a
sentencing court’s traditionally discretionary decision to, for example, impose
one prison sentence rather than another.” (Snow, 30 Cal.4th at 126, fn. 32.)
252
court rules. California Rules of Court, rule 4.42, subd. (e) provides: “The reasons
for selecting the upper or lower term shall be stated orally on the record, and shall
include a concise statement of the ultimate facts which the court deemed to
constitute circumstances in aggravation or mitigation justifying the term selected.”
Subdivision (b) of the same rule provides: “Circumstances in aggravation and
mitigation shall be established by a preponderance of the evidence.”
In a capital sentencing context, however, there is no burden of proof at all,
and the jurors need not agree on what aggravating circumstances apply. (See
sections C.1-C.5, ante.) Different jurors can, and do, apply different burdens of
proof to the contentions of each party and may well disagree on which facts are
true and which are important. And unlike most states where death is a sentencing
option and all persons being sentenced to non-capital crimes in California, no
reasons for a death sentence need be provided. (See section C.6, ante.) These
discrepancies on basic procedural protections are skewed against persons subject
to the loss of their life; they violate equal protection of the laws.
This Court has most explicitly responded to equal protection challenges to
the death penalty scheme in its rejection of claims that the failure to afford capital
defendants the disparate sentencing review provided to non-capital defendants
violated constitutional guarantees of equal protection. (See People v. Allen (1986)
42 Cal.3d 1222, 1286-1288.) There is no hint in Allen that the two procedures are
253
in any way analogous. In fact, the decision centered on the fundamental
differences between the two sentencing procedures. However, because the Court
was seeking to justify the extension of procedural protections to persons convicted
of non-capital crimes that are not granted to persons facing a possible death
sentence, the Court’s reasoning was necessarily flawed.
In People v. Allen, supra, this Court rejected a contention that the failure to
provide disparate sentence review for persons sentenced to death violated the
constitutional guarantee of equal protection of the laws. The Court offered three
justifications for its holding.
(1) The Court initially distinguished death judgments by pointing out that
the primary sentencing authority in a California capital case, unless waived, is a
jury: “This lay body represents and applies community standards in the capital-
sentencing process under principles not extended to noncapital sentencing.”
(People v. Allen, supra, 42 Cal. 3d at 1286.)
But jurors are not the only bearers of community standards. Legislatures
also reflect community norms, and a court of statewide jurisdiction is best situated
to assess the objective indicia of community values which are reflected in a pattern
of verdicts. (McCleskey v. Kemp (1987) 481 U.S. 279, 305.) Principles of
uniformity and proportionality live in the area of death sentencing by prohibiting
death penalties that flout a societal consensus as to particular offenses. (Coker v.
254
Georgia, supra, 433 U.S. 584) or offenders (Enmund v. Florida (1982) 458 U.S.
782; Ford v. Wainwright, supra; Atkins v. Virginia, supra.) Juries, like trial courts
and counsel, are not immune from error. The entire purpose of disparate sentence
review is to enforce these values of uniformity and proportionality by weeding out
aberrant sentencing choices, regardless of who made them.
While the State cannot limit a sentencer’s consideration of any factor that
could cause it to reject the death penalty, it can and must provide rational criteria
that narrow the decision-maker’s discretion to impose death. (McCleskey v.
Kemp, supra, 481 U.S. at pp. 305-306.) No jury can violate the societal consensus
embodied in the channeled statutory criteria that narrow death eligibility or the flat
judicial prohibitions against imposition of the death penalty on certain offenders or
for certain crimes.
Jurors are also not the only sentencers. A verdict of death is always subject
to independent review by a trial court empowered to reduce the sentence to life in
prison, and the reduction of a jury's verdict by a trial judge is not only allowed but
required in particular circumstances. (See section 190.4; People v. Rodriguez
(1986) 42 Cal.3d 730, 792-794.) The absence of a disparate sentence review
cannot be justified on the ground that a reduction of a jury’s verdict by a trial court
would interfere with the jury’s sentencing function.
255
(2) The second reason offered by Allen for rejecting the equal protection
claim was that the range available to a trial court is broader under the DSL than for
persons convicted of first-degree murder with one or more special circumstances:
“The range of possible punishments narrows to death or life without parole.”
(People v. Allen, supra, 42 Cal. 3d at p. 1287 [emphasis added].) In truth, the
difference between life and death is a chasm so deep that we cannot see the
bottom. The idea that the disparity between life and death is a “narrow” one
violates common sense, biological instinct, and decades of pronouncements by the
United States Supreme Court: “In capital proceedings generally, this court has
demanded that fact-finding procedures aspire to a heightened standard of reliability
(citation). This especial concern is a natural consequence of the knowledge that
execution is the most irremediable and unfathomable of penalties; that death is
different.” (Ford v. Wainwright, supra, 477 U.S. at p. 411). “Death, in its finality,
differs more from life imprisonment than a 100-year prison term differs from one
of only a year or two.” (Woodson v. North Carolina (1976) 428 U.S. 280, 305
[opn. of Stewart, Powell, and Stephens, J.J.].) (See also Reid v. Covert (1957) 354
U.S. 1, 77 [conc. opn. of Harlan, J.]; Kinsella v. United States (1960) 361 U.S.
234, 255-256 [conc. and dis. opn. of Harlan, J., joined by Frankfurter, J.]; Gregg v.
Georgia, supra, 428 U.S. at p. 187 [opn. of Stewart, Powell, and Stevens, J.J.];
Gardner v. Florida (1977) 430 U.S. 340, 357-358; Lockett v. Ohio, supra, 438
256
U.S. at p. 605 [plur. opn.]; Beck v. Alabama (1980) 447 U.S. 625, 637; Zant v.
Stephens, supra, 462 U.S. at pp. 884-885; Turner v. Murray (1986) 476 U.S. 28,
90 L.Ed.2d 27, 36 [plur. opn.], quoting California v. Ramos (1983) 463 U.S. 992,
998-999; Harmelin v. Michigan, supra, 501 U.S. at p. 994; Monge v. California,
supra, 524 U.S. at p. 732.) 51 The qualitative difference between a prison sentence
and a death sentence thus militates for, rather than against, requiring the State to
apply its disparate review procedures to capital sentencing.
(3) Finally, this Court relied on the additional “nonquantifiable” aspects of
capital sentencing as compared to non-capital sentencing as supporting the
different treatment of felons sentenced to death. (Allen, supra, at p. l287.) The
51
The Monge court developed this point at some length: “The
penalty phase of a capital trial is undertaken to assess the gravity of a particular
offense and to determine whether it warrants the ultimate punishment; it is in
many respects a continuation of the trial on guilt or innocence of capital murder.
‘It is of vital importance’ that the decisions made in that context ‘be, and appear
to be, based on reason rather than caprice or emotion.’ Gardner v. Florida, 430
U.S. 349, 358, 97 S.Ct. 1197, 1204, 51 L.Ed.2d 393 (1977). Because the death
penalty is unique ‘in both its severity and its finality,’ id., at 357, 97 S.Ct., at
1204, we have recognized an acute need for reliability in capital sentencing
proceedings. See Lockett v. Ohio, 438 U.S. 586, 604, 98 S.Ct. 2954, 2964, 57
L.Ed.2d 973 (1978) (opinion of Burger, C.J.) (stating that the ‘qualitative
difference between death and other penalties calls for a greater degree of
reliability when the death sentence is imposed’); see also Strickland v.
Washington, 466 U.S. 668, 704, 104 S.Ct. 2052, 2073, 80 L.Ed.2d 674 (1984)
(Brennan, J., concurring in part and dissenting in part) (‘[W]e have consistently
required that capital proceedings be policed at all stages by an especially vigilant
concern for procedural fairness and for the accuracy of factfinding’).” (Monge v.
California, supra, 524 U.S. at pp. 731-732.)
257
distinction drawn by the Allen majority between capital and non-capital sentencing
regarding “nonquantifiable” aspects is one with very little difference. A trial judge
may base a sentence choice under the DSL on factors that include precisely those
that are considered as aggravating and mitigating circumstances in a capital case.
(Compare section 190.3, subds. (a) through (j) with California Rules of Court,
rules 4.421 and 4.423.) One may reasonably presume that it is because
“nonquantifiable factors” permeate all sentencing choices that the legislature
created the disparate review mechanism discussed above.
In sum, the Equal Protection Clause of the Fourteenth Amendment to the
United States Constitution guarantees all persons that they will not be denied their
fundamental rights and bans arbitrary and disparate treatment of citizens when
fundamental interests are at stake. (Bush v. Gore (2000) 531 U.S. 98, 121 S.Ct.
525, 530.) In addition to protecting the exercise of federal constitutional rights,
the Equal Protection Clause also prevents violations of rights guaranteed to the
people by state governments. (Charfauros v. Board of Elections (9th Cir. 2001)
249 F.3d 941, 951.)
The fact that a death sentence reflects community standards has been cited
by this Court as justification for the arbitrary and disparate treatment of convicted
felons who are facing a penalty of death. This fact cannot justify the withholding
of a disparate sentence review provided all other convicted felons, because such
258
reviews are routinely provided in virtually every state that has enacted death
penalty laws and by the federal courts when they consider whether evolving
community standards no longer permit the imposition of death in a particular case.
(See, e.g., Atkins v. Virginia, supra.)
Nor can this fact justify the refusal to require written findings by the jury
(considered by this Court to be the sentencer in death penalty cases [Allen, supra,
42 Cal.3d at p. 186]) or the acceptance of a verdict that may not be based on a
unanimous agreement that particular aggravating factors that support a death
sentence are true. (Ring v. Arizona, supra.) 52 California does impose on the
prosecution the burden to persuade the sentencer that the defendant should receive
the most severe sentence possible, and that the sentencer must articulate the
reasons for a particular sentencing choice. It does so, however, only in non-capital
cases. To provide greater protection to non-capital defendants than to capital
defendants violates the due process, equal protection, and cruel and unusual
punishment clauses of the Eighth and Fourteenth Amendments. (See, e.g., Mills v.
52
Although Ring hinged on the court’s reading of the Sixth
Amendment, its ruling directly addressed the question of comparative procedural
protections: “Capital defendants, no less than non-capital defendants, we
conclude, are entitled to a jury determination of any fact on which the legislature
conditions an increase in their maximum punishment. . . . The right to trial by
jury guaranteed by the Sixth Amendment would be senselessly diminished if it
encompassed the factfinding necessary to increase a defendant’s sentence by two
years, but not the factfinding necessary to put him to death.” (Ring, supra, 122
S.Ct. at pp. 2432, 2443.)
259
Maryland, supra, 486 U.S. at p. 374; Myers v. Ylst (9th Cir. 1990) 897 F.2d 417,
421; Ring v. Arizona, supra.)
Procedural protections are especially important in meeting the acute need
for reliability and accurate fact-finding in death sentencing proceedings. (Monge
v. California, supra.) To withhold them on the basis that a death sentence is a
reflection of community standards demeans the community as irrational and
fragmented and does not withstand the close scrutiny that should be applied by this
Court when a fundamental interest is affected.
E. CALIFORNIA’ S USE OF THE DEATH PENALTY AS A REGULAR FORM

OF PUNISHMENT FALLS SHORT OF INTERNATIONAL NORMS OF
HUMANITY AND DECENCY AND VIOLATES THE EIGHTH AND
FOURTEENTH AMENDMENTS; IMPOSITION OF THE DEATH PENALTY
NOW VIOLATES THE EIGHTH AND FOURTEENTH AMENDMENTS TO
THE UNITED STATES CONSTITUTION
“The United States stands as one of a small number of nations that regularly
uses the death penalty as a form of punishment. . . . The United States stands with
China, Iran, Nigeria, Saudi Arabia, and South Africa [the former apartheid
regime] as one of the few nations which has executed a large number of
persons. . . . Of 180 nations, only ten, including the United States, account for an
overwhelming percentage of state ordered executions.” (Soering v. United
Kingdom: Whether the Continued Use of the Death Penalty in the United States
Contradicts International Thinking (1990) 16 Crim. and Civ. Confinement 339,
366; see also People v. Bull (1998) 185 Ill.2d 179, 225 [235 Ill. Dec. 641, 705
260
N.E.2d 824] [dis. opn. of Harrison, J.].) (Since that article, in 1995, South Africa
abandoned the death penalty.)
The non-use of the death penalty, or its limitation to “exceptional crimes
such as treason” – as opposed to its use as regular punishment – is particularly
uniform in the nations of Western Europe. (See, e.g., Stanford v. Kentucky (1989)
492 U.S. 361, 389 [109 S.Ct. 2969, 106 L.Ed.2d 306] [dis. opn. of Brennan, J.];
Thompson v. Oklahoma, supra, 487 U.S. at p. 830 [plur. opn. of Stevens, J.].)
Indeed, all nations of Western Europe have now abolished the death penalty.
(Amnesty International, “The Death Penalty: List of Abolitionist and Retentionist
Countries” (Dec. 18, 1999), on Amnesty International website
[www.amnesty.org].) 53
Although this country is not bound by the laws of any other sovereignty in
its administration of our criminal justice system, it has relied from its beginning on
the customs and practices of other parts of the world to inform our understanding.
“When the United States became an independent nation, they became, to use the
language of Chancellor Kent, ‘subject to that system of rules which reason,
morality, and custom had established among the civilized nations of Europe as
their public law.’” (1 Kent’s Commentaries 1, quoted in Miller v. United States
53
These facts remain true if one includes “quasi-Western European”
nations such as Canada, Australia, and the Czech and Slovak Republics, all of
which have abolished the death penalty. (Id.)
261
(1871) 78 U.S. [11 Wall.] 268, 315 [20 L.Ed. 135] [dis. opn. of Field, J.]; Hilton v.
Guyot, supra, 159 U.S. at p. 227; Sabariego v. Maverick (1888) 124 U.S. 261,
291-292 [8 S.Ct. 461, 31 L.Ed. 430]; Martin v. Waddell’s Lessee (1842) 41 U.S.
[16 Pet.] 367, 409 [10 L.Ed. 997].)
Due process is not a static concept, and neither is the Eighth Amendment.
“Nor are ‘cruel and unusual punishments’ and ‘due process of law’ static concepts
whose meaning and scope were sealed at the time of their writing. They were
designed to be dynamic and gain meaning through application to specific
circumstances, many of which were not contemplated by their authors.” (Furman
v. Georgia, supra, 408 U.S. at p. 420 [dis. opn. of Powell, J.].) The Eighth
Amendment in particular “draw[s] its meaning from the evolving standards of
decency that mark the progress of a maturing society.” (Trop v. Dulles, supra, 356
U.S. at p. 100; Atkins v. Virginia, supra, 122 S.Ct. at 2249-2250.) It prohibits the
use of forms of punishment not recognized by several of our states and the
civilized nations of Europe, or used by only a handful of countries throughout the
world, including totalitarian regimes whose own “standards of decency” are
antithetical to our own. In the course of determining that the Eighth Amendment
now bans the execution of mentally retarded persons, the U.S. Supreme Court
relied in part on the fact that “within the world community, the imposition of the
death penalty for crimes committed by mentally retarded offenders is
262
overwhelmingly disapproved.” (Atkins v. Virginia, supra, 122 S.Ct. at 2249, fn.
21, citing the Brief for The European Union as Amicus Curiae in McCarver v.
North Carolina, O.T.2001, No. 00-8727, p. 4.)
Thus, assuming arguendo capital punishment itself is not contrary to
international norms of human decency, its use as regular punishment for
substantial numbers of crimes – as opposed to extraordinary punishment for
extraordinary crimes – is. Nations in the Western world no longer accept it. The
Eighth Amendment does not permit jurisdictions in this nation to lag so far behind.
(See Atkins v. Virginia, supra, 122 S.Ct. at p. 2249.) Furthermore, inasmuch as the
law of nations now recognizes the impropriety of capital punishment as regular
punishment, it is unconstitutional in this country inasmuch as international law is a
part of our law. (Hilton v. Guyot (1895) 159 U.S. 113, 227; see also Jecker, Torre
& Co. v. Montgomery (1855) 59 U.S. [18 How.] 110, 112 [15 L.Ed. 311].)
Categories of crimes that particularly warrant a close comparison with
actual practices in other cases include the imposition of the death penalty for
felony-murders or other non-intentional killings, and single-victim homicides. See
Article VI, Section 2 of the International Covenant on Civil and Political Rights,
which limits the death penalty to only “the most serious crimes.” 54 Categories of
54
Judge Alex Kozinski of the Ninth Circuit has argued that an
effective death penalty statute must be limited in scope: “First, it would ensure
that, in a world of limited resources and in the face of a determined opposition,
263
criminals that warrant such a comparison include persons suffering from mental
illness or developmental disabilities. (Cf. Ford v. Wainwright (1986) 477 U.S.
399; Atkins v. Virginia, supra.)
Thus, the very broad death scheme in California and death’s use as regular
punishment violate both international law and the Eighth and Fourteenth
Amendments. Appellant’s death sentence should be set aside.
///
we will run a machinery of death that only convicts about the number of people
we truly have the means and the will to execute. Not only would the monetary
and opportunity costs avoided by this change be substantial, but a streamlined
death penalty would bring greater deterrent and retributive effect. Second, we
would insure that the few who suffer the death penalty really are the worst of the
very bad – mass murderers, hired killers, terrorists. This is surely better than the
current system, where we load our death rows with many more than we can
possibly execute, and then pick those who will actually die essentially at
random.” (Kozinski and Gallagher, Death: The Ultimate Run-On Sentence, 46
Case W. Res. L.Rev. 1, 30 (1995).)
264
XX.
THE CUMULATIVE EFFECT OF THE ERRORS IN THIS CASE

REQUIRES REVERSAL OF APPELLANT’S DEATH SENTENCE
Appellant’s death judgment must be evaluated in light of the cumulative
effect of the multiple errors occurring at both the guilt and penalty phases of his
trial. (Taylor v. Kentucky, supra, 436 U.S. 478, 487, fn. 15; People v. Hill, supra,
17 Cal.4th 800, 844-845; Phillips v. Woodford, supra, 267 F.3d 966, 985, citing
Mak v. Blodgett, supra, 970 F.2d 614, 622.) Thus, even if the Court were to hold
that not one of the errors discussed above was, by itself, prejudicial, the cumulative
effect of these errors sufficiently undermines confidence in the integrity of the
penalty proceedings in this case. These numerous constitutional violations
compounded one another, and created a pervasive pattern of unfairness that
violated appellant’s Fifth, Sixth, Eighth and Fourteenth Amendment rights by
resulting in a penalty trial that was fundamentally flawed and a death sentence that
is unreliable.
As shown above, this was a close case on the issue of penalty as evidence
by, among other things, the strength of the mitigation evidence (ante, pp. 34-39)
and the length of the jury’s deliberations (approximately 10 hours over the course
of three days; RT 3026, 3031-3032, 3040-3042). It simply cannot be said that the
combined effect of the errors detailed above had “no effect” on at least one of the
jurors who determined that appellant should die by execution. (Caldwell v.
265
Mississippi, supra, 472 U.S. 320, 341.) Appellant’s death sentence must be
reversed due to the cumulative effect of the numerous errors in this case.
///
266

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No.

IN THE SUPREME COURT OF CALIFORNIA

THE PEOPLE OF THE STATE OF LOS ANGELES COUNTY

Plaintiff and Respondent, Superior Court Case

Defendant and Appellant.

Superior Court of California, County of Los Angeles

APPELLANT’S OPENING BRIEF

Stephen M. Lathrop (S.B. #126813)

Attorney for Defendant/Appellant

STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

A. GUILT PHASE – PROSECUTION’ S CASE ...................... 6

1. VIDEO STORE INCIDENT INVOLVING EUGENE

2. NORTH BONNIE BRAE STREET INCIDENT INVOLVING

3. SEARCH OF APPELLANT’ S BEDROOM ................. 15

4. PROSECUTION’ S GANG TESTIMONY .................. 16

5. STIPULATION RE: SAME FIREARM USED IN BOTH THE

B. GUILT PHASE – DEFENSE CASE ........................... 19

C. PENALTY PHASE – PROSECUTION’ S CASE ................... 26

1. VIOLENT CRIMINAL ACTIVITY ...................... 27

a. AX ASSAULT ON TONY SCHMIDT .............. 27

b. ATTEMPTED ROBBERY OF VICTOR CAN AND

d. ASSAULT ON DUK AN ....................... 30

e. ASSAULT ON ISAAC GONZALES, WHICH THE JURY

f. ASSAULT ON ENRIQUE DIAZ .................. 32

2. VICTIM IMPACT EVIDENCE ......................... 32

D. PENALTY PHASE – DEFENSE CASE ........................ 34

1. CLINICAL ASSESSMENT OF MENTAL HEALTH ISSUES

2. CHARACTER WITNESSES ROSALBA ROMERO, MARIA

GUILT PHASE ISSUES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40

I. THE EVIDENCE IS INSUFFICIENT AS A MATTER OF LAW

A. INTRODUCTION AND SUMMARY OF ARGUMENT ............... 40

B. STANDARD OF REVIEW ................................. 41

II. THE EVIDENCE IS INSUFFICIENT AS A MATTER OF LAW

A. INTRODUCTION AND SUMMARY OF ARGUMENT ............... 53

B. STANDARD OF REVIEW ................................. 54

C. THE PROSECUTION FAILED TO SUSTAIN ITS BURDEN OF PROVING

III. THE TRIAL COURT PREJUDICIALLY ERRED IN FAILING TO

A. INTRODUCTION AND PROCEDURAL BACKGROUND ............ 62

B. THE TRIAL COURT IS REQUIRED TO INSTRUCT THE JURY SUA

C. EXPRESS- MALICE SECOND- DEGREE MURDER IS A LESSER

IV. THE OFF-THE-RECORD, UNREPORTED DISCUSSIONS

V. THE TRIAL COURT’S EXPLANATIONS AND INSTRUCTIONS

VI. THE TRIAL COURT ERRONEOUSLY INSTRUCTED THE JURY

B. REQUIRING A CAPITAL CASE JURY TO UNANIMOUSLY ACQUIT

C. APPELLANT WAS SEVERELY PREJUDICED BY THE ACQUITTAL-

VII. THE TRIAL COURT’S UNILATERAL CORRECTION OF THE

A. INTRODUCTION AND PROCEDURAL BACKGROUND ............ 98

B. THE TRIAL JUDGE’ S CHANGE TO THE REPORTER’ S TRANSCRIPT

C. APPELLANT WAS PREJUDICED BY THE TRIAL COURT’ S

IX. APPELLANT’S EXCLUSION FROM PROCEEDINGS IN THE

X. APPELLANT’S FEDERAL CONSTITUTIONAL RIGHTS WERE

XI. THE CUMULATIVE EFFECT OF THE GUILT PHASE ERRORS

PENALTY PHASE AND SENTENCING ISSUES . . . . . . . . . . . . . . . . . . 133

XII. THE DEATH VERDICT AND APPELLANT’S SENTENCE

A. INTRODUCTION AND SUMMARY OF ARGUMENT .............. 133

B. THE EVIDENCE PRESENTED DURING THE PENALTY PHASE TRIAL

XIII. THE DEATH JUDGMENT MUST BE REVERSED FOR A

A. INTRODUCTION AND PROCEDURAL BACKGROUND ........... 141

B. THE ADMISSION OF SCHMIDT’S TESTIMONIAL STATEMENTS

C. THE JURY’ S CONSIDERATION OF SCHMIDT’ S STATEMENTS

A. INTRODUCTION AND SUMMARY OF ARGUMENT .............. 149

B. THE TRIAL COURT HAS A SUA SPONTE DUTY TO CORRECTLY

C. STANDARD OF REVIEW ................................ 151