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Appellant's Reply Brief SUPREME COURT COpy IN THE SlJFRE\IC COERI' OF THE STA'IT OF CALIFORNIA PEOPLE OF THE STATE OF CALIFORNlA.) ) CAPITAL C~ASE Plaintiffand R~5IHmd~nr~ ) SD93303 ) ) ROPATI BEPM.A.tiP ~ } Ahurwda No< ) N~t H.24fJ57 A•. Defendant ~md A.ppel.lanL ) } ,J APPELLANT·S REFL'y BRIEF ~~/fa.rk [). (Jr(~(~nberg: /\Horney at Lg~x SEN 99726 484 Lale F<lrk: Av(~nue, ><0- 429 Odd2md, C/\ 9461. () 510 452 3126 ·;;·:1rH;«-:.....' U TABLE OF CONTENTS APPELLANT'S OPENING BRIEF 1 INTRODUCTION 1 ARGUMENT IN REPLY 2 I. REPLY CONCERNING THE "EVIDENCE" OF MS. BACKERS' SUBJECTIVE MOTIVES FOR BESTOWING FAVORABLE PLEA ARRANGEMENTS TO lULl AND PALEGA, AND HER VOUCHING THEREBY FOR THEIR CREDIBILITY AND APPELLANT'S GUILT 2 xv: REPLY CONCERNING VOUCHING ERRORS AS THEY AFFECTED THE PENALTY DETERMINATION 24 II. REPLY CONCERNING DOYLE ERROR 28 III, XVII. REPLY CONCERNING MISCONDUCT IN IMPUGNING DEFENSE COUNSEL'S INTEGRITY AND ACCUSING HIM OF FABRICATING EVIDENCE 31 IV. REPLY CONCERNING MS. BACKERS' APPEAL TO PASSION AND PREJUDICE, WHICH UNDERMINED THE FUNDAMENTAL FAIRNESS OF THE GUILT PHASE OF TRIAL 35 • Appellant has kept the same numeration ofarguments used in the opening brief, but not the same order. (See below, INTRODUCTION, pp. 1-2.) v. REPLY CONCERNING TONY lULl'S HEARSAY STATEMENT THAT APPELLANT "BLEW SOME DUDE AWAY" 41 VI. REPLY CONCERNING TONY lULl'S IMPROPER OPINION REGARDING TAUTAI 44 VII. REPLY CONCERNING THE ALLEGED CONTRACT ON TONY lULl 45 XVIII. THE PROSECUTOR'S USE AT THE PENALTY PHASE OF THE HEARSAY CONTRACT 50 IX. JUDICIAL MISCONDUCT DURING CROSS­ EXAMINATION EXAMINATION OF TAUTAI 51 X. REPLY CONCERNING ERROR IN ADMITTING EXHIBIT 46 WITHOUT HAVING OR PRESENTING PROOF OF A PROPER FOUNDATION 53 XIX EXHIBIT 46 AT THE PENALTY PHASE OF TRIAL 61 XI. REPLY CONCERNING THE ALLEGED OFFER BY TAUTAI TO TESTIFY AGAINST APPELLANT 11 62 VIII., XII., XIII. CUMULATIVE ERROR AND PREJUDICE 67 XIV. REPLY CONCERNING CALJIC No. 2.15 68 XVI. REPLY CONCERNING TRIAL COURT'S ADMONITION REGARDING THE "SO­ SUBSTANTIAL" STANDARD FOR DETERMINATION OF PENALTY 71 XX. REPLY CONCERNING THE INVOCATION OF RICHARD ALLEN DAVIS AS THE PARADIGM FOR EXPLAINING APPELLANT'S SUPPOSED INSULT TO THE JURY FOR WEARING HIS JAIL CLOTHING DURING THE PENALTY PHASE OF TRIAL 74 XXI. REPLY CONCERNING CHURISH'S IMPROPER TESTIMONY ABOUT A CONJECTURED ROBBERY 76 XXII., XXIII. CUMULATIVE ERROR FOR PENALTY PHASE 78 XXIV. VICTIM-IMPACT EVIDENCE UNDER STATE LAW 80 111 xxv. CONSTITUTIONAL CHALLENGES TO THE DEATH PENALTY LAW AS INTERPRETED AND APPLIED 82 CONCLUSION 83 CERTIFICATION OF WORD-COUNT 84 TABLE OF AUTHORITIES Cases Beck v. Alabama (1980) 447 U.S. 625 18,34,44,66 Britain v. State (Ala.Cr.App.1987) 518 So.2nd 198 5 Bruno v. Rushen (9th Cir. 1983) 721 F.2nd 1193 34 Bruton v. United States (1968) 391 U.S. 123 34 Campbell v. Superior Court (2008) 159 Cal.App.4th 635 64 Chapman v. California (1967) 386 U.S. 18 23,28,31,41,45,50,51,60,66,71,74, 80 Crane v. Kentucky (1986) 476 U.S. 683 34 Darden v. Wainwright (1986) 477 U.S. 168 34,41 Doyle v. Ohio (1976) 426 U.S. 610 28,78 Giglio v. United States (1972) 405 U.S. 150 66 In re Antonio C. (2000) 83 Cal.App.4th 1029 62 Kindler v. Horn (E.D. Pa.2003) 291 F.Supp.2nd 323 25 Knapp v. White (E.D.Mich.2003) 296 F.Supp.2nd 766 29 IV Marshall v. Hendricks (3 rd Cir.2002) 307 F.3 rd 36 30 Mary M v. City olLos Angeles (1991) 54 Ca1.3 rd 202 11 Miranda v. Arizona (1966) 384 U.S. 436 28 Morgan v. Hall (1S1 Cir.1978) 569 F.2nd 1161 28 Napue v.Illinois (1959) 360 U.S 264 66 Nogart v. Upjohn Co. (1999) 21 Ca1.4th 383 11 OnLeev. United States (1952) 343 U.S. 747 49 Payne v. Tennessee (1991) 501 U.S. 808 81 People ex reI. Lockyer v. Shamrock Food Co. (2000) 24 Ca1.41h 415 76 lh People v. Abbaszadeh (2003) 106 Ca1.App.4 642 62,72 People v. Adamson (1953) 118 Ca1.App.2nd 714 55 People v. Alverson (1964) 60 Ca1.2 nd 803 14-17,18 People v. Arends (1958) 155 Ca1.app.2nd 496 7 People v. Armendariz (1984) 37 Ca1.3 rd 573 47 People v. Ashmus (1991) 54 Ca1.3 rd 932 28,51,74,80,82 People v. Bain (1971) 5 Ca1.3 rd 839 7 People v. Bandhauer (1967) 66 Ca1.2nd 524 35 People v. Belton (2008) 168 Cal.App.4lh 432 33 1h People v. Bemore (2000) 22 Ca1.4 809 32 People v. Black (2007) 41 Ca1.4th 799 80 People v. Bolton (1979) 23 Ca1.3 rd 208 18,66 People v. Bonin (1988) 46 Ca1.3 rd 659 62-63 v People v. Boyer (2006) 38 Ca1.4th 412 19 People v. Brown (2003) 31 Ca1.4th 518 72 People v. Brown (1988) 46 Ca1.3 rd 432 28,51,80,82 People v. Brown (1981) 119 Cal.App.3 rd 116 14 People v. Bunyard (1988) 45 Ca1.3 rd 1189 47 People v. Cain (1995) 10 Ca1.4th 1 17 People v. Carasi (2008) 44 Ca1.4th 1263 19 People v. Carr (2000) 81 Cal.AppAth 837 5-6 People v. Champion (1995) 9 Ca1.4th 879 24,50 People v. Chatman (2006) 38 Ca1.4th 344 62 People v. Crandell (1988) 46 Ca1.3 rd 833 28 People v. Donaldson (2001) 93 Cal.AppAth 916 7 People v. Earp (1999) 20 Ca1.4 th 826 54 People v. Edwards (1991) 54 Ca1.3 rd 787 80 People v. Evans (1994) 25 Cal.AppAth 358 29 People v. Fierro (1991) 1 Ca1.4th 173 13,33 People v. Floyd (1970) 1 Ca1.3 rd 694 80 People v. Frye (1998) 18 Ca1.4 th 894 14,32 People v. Gaines (1997) 54 Ca1.AppAth 821 17,66 People v. Gambos (1970) 5 Cal.App.3rd 187 7 People v. Garcia (2009) 171Cal.AppAth 1649,90 Cal.Rptr.3 rd 440 30 VI People v. Ghent (1987) 43 Ca1.3 rd 739 26 People v. Guerra (2008) 37 Ca1.4th 1067 71 People v. Gutierrez (2009) 45 Cal. 4th 789 19,41 th People v. Harris (2008) 43 Ca1.4 1269 72 People v. Harris (1989) 47 Ca1.3 rd 1047 18,66 rd People v. Haskett (1982) 30 Cal.3 841 38 People v. Herrera (2000) 83 Cal.App.4th 46 42 People v. Hill (1998) 17 Cal.4th 800 62 th People v. Hinton (2006) 37 Ca1.4 839 67 People v. Huggins (2006) 38 Cal.4th 175 7,13,25 People v. Hurlic (1971) 14 Cal.App.3rd 122 45,64,78 People v. Jablonski (2006) 37 Cal.4th 774 75 People v. Jackson (2009) 45 Cal.4th 662 38 People v. Johnson (2006) 139 Cal.App.4th 1135 5 People v. Johnson (2004) 119 Cal.App.4th 976 72 People v. Johnson (1981) 121 Cal.App.3rd 94 14 People v. Keener (1983) 148 Cal.App.3rd 73 30 People v. Kennedy (2008) 168 Cal.App.4th 1233 55,64 nd People v. Kirkes (1952) 39 Ca1.2 719 7 th People v. Kirkpatrick (1994) 7 Cal.4 988 80 People v. Lindsey (1988) 205 Cal.App.3rd 112 29 th People v. Livaditis (1992) 2 Cal.4 831 42,46 VII People v. Lewis (2004) 117 Ca1.AppAth 246 29 People v. Love (1960) 53 Ca1.2 nd 843 80 People v. Marsh (1962) 58 Ca1.2 nd 732 55 People v. Marshall (1996) 13 Ca1.4th 799 42 People v. Mayfield (1997) 14 Ca1.4th 668 71 People v. Mendoza (2007) 42 Ca1.4th 686 38,72 People v. Moreno (1987) 188 Ca1.App.3 rd 1179 49 People v. Morrison (2004) 34 Ca1.4 th 698 64 People v. Padilla (2002) 98 Ca1.AppAth 127 49 People v. Parson (2008) 44 Ca1.4th 332 69 People v. Partida (2005) 37 Ca1.4 th 428 19,34,44,45,52,60,76,78 People v. Price (1991) 1 Ca1.4 th 324 54,63 People v. Ramirez (2006) 39 Ca1.4th 398 24,50 People v. Riel (2000) 22 Ca1.4 th 1153 80-81 People v. Riggs (2008) 44 Ca1.4th 248 11,25 People v. Rigney (1961) 55 Ca1.2nd 236 53 People v. Romero (2008) 44 Ca1.4th 386 73 People v. Rundle (2008) 43 Ca1.4 th 76 71 People v. Sanchez (1995) 12 Ca1.4 lh 1 80 People v. Saunders (1993) 5 Ca1.4th 580 80 People v. Scott (1994) 9 Ca1.4 1h 331 55,64 Vlll People v. Seaton (2001) 26 Ca1.4th 598 63,64 People v. Sergill (1982) 138 Cal.app.3rd 34 64 People v. Smithey (1999) 20 Ca1.4th 936 72 People v. Snyder (2003) 112 Cal.Ap.4th 1200 68 People v. Southern Cal. Edison Co. (1976) 56 Cal.App.3rd 593 57 People v. Stanley (2006) 39 Ca1.4th 913 49,78 People v. Stanley (1995) 10 Ca1.4th 764 80 People v. Stansbury (1993) 4 Ca1.4th 1017 38,40 People v. Sturm (2006) 37 Ca1.4th 1218 52 People v. Superior Court (Mitchell) (1993) 5 Ca1.4th 1229 24 People v. Thompson (1988) 45 Ca1.3 rd 86 32 People v. Valencia (2008) 43 Ca1.4th 268 32 People v. Von Villas (1992) 10 Ca1.4th 201 5 People v. Warren (1988) 45 Ca1.3 rd 471 63 People v.
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