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'" l:\":'d?L.0.•!S nr D C"'·l.. ,Jrl>'j"'j''''·B'... ,~ ., , I'{,'\.l : ::"'~)·j1'['JCn.::.·,·'x" LJ\\VOF'Fl:CES OF J(:JUt'..; P, S('EL:(]( John F. SdHl{;k~ ih,}(i J 11 JJl'~;'~ lj ". ,". <., .... - 'fro),.eo ~.,~U)'-"'Y'(l'l'.l...">:~}~.,I'. t. Si''-'''''·........ tv'V':."" ....t;;,:,...'~";.t;-,,..·':.·w .L..~ Falo AJto, C/\ 94303 1(50) 856,7963 '\ H;'r'"''{-'v .!",~, l"p,;' ~- ... ':.;;, ... : s.~"A'./ _.'I'•.•.s,,:.. .....;\ .j'w,,</t·· ....:... ~.'~· .. s~·~. NA,. 'II L:\N \JEPJ)Uf';() (,;\pjx>inted by the ('<>w":.\ SUPREME COURT, STATE OF CALIFORNIA PEOPLE OF THE STATE OF CALIFORNIA, ) No. S083904 ) Plaintiff/Respondent, ) ) APPELLANT'S v. ) OPENING BRIEF ) NATHAN VERDUGO, ) ) Defendant!Appellant. ) --------------- ) APPEAL FROM THE JUDGMENT OF THE SUPERIOR COURT OF THE STATE OF CALIFORNIA LOS ANGELES COUNTY SUPERIOR COURT CASE NO. BA105622-01 THE HONORABLE CURTIS B. RAPPE, JUDGE LAW OFFICES OF JOHN F. SCHUCK John F. Schuck, #96111 4083 Transport Street, Suite B Palo Alto, CA 94303 (650) 856-7963 Attorney for Appellant NATHAN VERDUGO (Appointed by the Court) VerdugoAOB TABLE OF CONTENTS I. STATEMENT OF APPEALABILITY 1 II. INTRODUCTION . III. STATEMENT OF THE CASE. ...................................... .. 3 IV. STATEMENT OF THE FACTS: GUILT PHASE 10 A. THE PROSECUTION'S CASE 10 1. The party .................................. " 10 2. At the hospital. ....................................... .. 17 3. Mike Arevalo's testimony ........... .. 17 4. Ray Muro's testimony " 21 5. What the firemen heard and saw 24 6. The coroner's testimony 28 7. Police investigation 30 8. The testimony ofJohn Paul Hernandez 37 9. The Honda CRX 38 10. Appellant is located 39 11. Juan Carlos Enciso's testimony 40 12. Salvadore Verdugo's testimony 41 13. Paul Verdugo's testimony 43 14. Eyeglasses evidence .,. ................................ .. 45 15. Donna Tucker's testimony 48 16. The purchase ofshotguns ............................ .. 55 B. APPELLANT'S CASE " 55 1. Law enforcement testimony ............................. .. 55 2. Ray Muro's testimony 58 3. Mary Alice Baldwin's testimony 58 4. Appellant's testimony 60 C. STIPULATIONS 71 D. PROSECUTION REBUTTAL 71 1. Mary Alice Baldwin .. ................................. .. 71 2. Police testimony 72 VerdugoAOB TABLE OF CONTENTS V. STATEMENT OF THE FACTS: PENALTY PHASE 73 A. THE PROSECUTION'S CASE 73 1. Witnesses regarding Richard Rodriguez 73 2. Witnesses regarding Yolanda Navarro 75 B. APPELLANT'S CASE 78 VI. ARGUMENT: PRE-TRIAL ISSUES ................................. .. 82 THE TRIAL COURT PREJUDICIALLY ERRED WHEN IT DENIED APPELLANT'S CONFIDENTIAL APPLICATION FOR SECOND COUNSEL, RESULTING IN A DENIAL OF APPELLANT'S CONSTITUTIONAL RIGHTS TO DUE PROCESS, A FAIR TRIAL, EFFECTIVE ASSISTANCE OF COUNSEL, RELIABLE DETERMINATION OF GUILT AND PENALTY, AND FUNDAMENTAL FAIRNESS; REVERSAL IS REQUIRED. ............. .. 82 1. Introduction. ........................................ .. 82 2. Factual background. ................................... .. 83 3. Standard ofreview 86 4. The Constitutional necessity of second counsel in capital cases 87 5. Conclusion 99 VII. ARGUMENT: GUILT PHASE ISSUES " 100 A. THE TRIAL COURT COMMITTED PREJUDICIAL ERROR WHEN IT EXCLUDED EVIDENCE THAT THE INVESTIGATING OFFICERS HAD BEEN SUSPECTED OF FABRICATING EVIDENCE; AS A RESULT, APPELLANT'S RIGHTS TO DUE PROCESS, A FAIR TRIAL, PRESENT A DEFENSE, A RELIABLE DETERMINATION OF GUILT AND PENALTY, RIGHT TO CONFRONT AND CROSS-EXAMINE WITNESSES, AND FUNDAMENTAL FAIRNESS UNDER THE FIFTH, SIXTH, EIGHTH AND FOURTEENTH AMENDMENTS AND CALIFORNIA CONSTITUTION, ARTICLE 1, SECTIONS 7,15,16,17 AND 28 WERE VIOLATED. REVERSAL IS REQUIRED 100 1. Introduction " 100 2. Standard ofreview -. .............................. .. 101 3. The facts " 102 VerdugoAOB 11 TABLE OF CONTENTS 4. Appellant's constitutional rights were prejudicially violated by the erroneous exclusion ofevidence 104 5. Conclusion. ........................................ .. 107 B. THE PROSECUTOR COMMITTED PREJUDICIAL MISCONDUCT BY FAILING TO DISCLOSE MATERIAL REQUIRED TO BE PROVIDED TO THE DEFENSE BY BRADY V. MARYLAND AND PENAL CODE SECTION 1054.1, THUS DEPRIVING APPELLANT OF HIS STATE AND FEDERAL CONSTITUTIONAL AND STATE STATUTORY RIGHTS, REQUIRING REVERSAL OF HIS CONVICTION 108 1. Introduction. ....................................... .. 108 2. Standard ofreview 109 3. The prosecutor's failures to disclose evidence. ............. .. 109 a. Prosecutor's notes re interview with Ray Muro 109 b. The detective's opinion .. ........................ .. 110 c. Detective Teague's opinion as to the direction the shots were fired ., ....................................... .. 111 d. Nondisclosure ofmeasurements ofEscoto's car. ...... .. 111 e. Failure to disclose notes re witness J.P. Hernandez 112 f. Failure to disclose expert opinions about various aspects ofthe alleged collision between the suspect's and the victim's vehicles ............................................. .. 112 g. Donna Tucker's claim she was threatened 113 h. Failure to tum over notes regarding Donna Tucker's statements ............................................. .. 113 i. Failure to disclose relocation ofDonna Tucker 114 4. The prosecution's discovery obligations 115 5. The prosecutor committed prejudicial Brady error 118 a. Failure to tum over raw work 119 b. The detectives' opinions 120 c. Failure to disclose facts relating to Donna Tucker 122 d. Withholding of evidence regarding Escoto's car 123 6. The withheld evidence was material 123 7. Conclusion. ........................................ .. 125 C. THE TRIAL COURT ERRED WHEN IT DENIED APPELLANT'S REQUEST TO EXAMINE WITNESSES REGARDING DONNA TUCKER'S PSYCHIATRIC TREATMENT. '" ., , 126 1. Introduction. ....................................... .. 126 VerdugoAOB III TABLE OF CONTENTS 2. Factual and Procedural Background. ..................... .. 126 3. The trial court prejudicially erred when it prevented appellant from presenting evidence that Donna Tucker, a key prosecution witness, had been hospitalized in a psychiatric institution just three months before .................................................... 127 4. Conclusion " 130 D. THE TRIAL COURT COMMITTED PREJUDICIAL ERROR BY WITHDRAWING FROM THE JURY THE OPTION OF FINDING APPELLANT GUILTY OF THE LESSER INCLUDED OFFENSE OF VOLUNTARY MANSLAUGHTER AS TO RICHARD RODRIGUEZ. AS A RESULT, APPELLANT'S RIGHTS TO DUE PROCESS, A FAIR TRIAL, A RELIABLE DETERMINATION OF GUILT AND PENALTY, A JURY TRIAL, AND FUNDAMENTAL FAIRNESS UNDER THE FIFTH, SIXTH, EIGHTH AND FOURTEENTH AMENDMENTS AND THEIR CALIFORNIA COUNTERPARTS WERE VIOLATED; REVERSAL IS REQUIRED .............................................. .. 131 1. Introduction " 131 2. The facts. .......................................... .. 131 3. Standard ofreview .......... .. 132 4. The law regarding instruction on lesser included offenses .................................................... 134 5. The trial court was required to instruct sua sponte regarding voluntary manslaughter. ....................................... .. 138 6. Assuming, arguendo, that the error is subject to a harmless error test, reversal is required because appellant suffered severe prejudice as a result ofthe failure to instruct the jury on voluntary manslaughter as to Richard ... ......................................... .. 140 7. Conclusion. ........................................ .. 141 E. THE TRIAL COURT COMMITTED PREJUDICIAL ERROR BY FAILING TO INSTRUCT THE JURY SUA SPONTE WITH CALJIC NOS. 4.21 AND 4.21.1 REGARDING VOLUNTARY INTOXICATION 142 1. Introduction. ....................................... .. 142 2. Due process and fundamental fairness required that the trial court sua sponte instruct the jury regarding voluntary intoxication ...... .. 142 3. Conclusion. ........................................ .. 145 VerdugoAOB IV TABLE OF CONTENTS F. THE CIRCUMSTANTIAL EVIDENCE JURY INSTRU CTIONS UNDERMINED THE CONSTITUTIONAL REQUIREMENT OF PROOF BEYOND A REASONABLE DOUBT " 146 VIII. ARGUMENT: PENALTY PHASE ISSUES . 152 A. THE TRIAL COURT DEPRIVED APPELLANT OF HIS STATE AND FEDERAL CONSTITUTIONAL RIGHTS WHEN IT FAILED TO TELL THE JURY, IN RESPONSE TO ITS QUESTION, THAT APPELLANT WOULD NEVER BE RELEASED ON PAROLE IF LIFE WITHOUT POSSIBILITY OF PAROLE WAS FOUND TO BE THE APPROPRIATE PENALTY; THE DEATH SENTENCE SHOULD BE REVERSED '" 152 1. Introduction " 152 2. Factual and procedural background " 153 3. Standard ofreview 155 4. The trial court should have told the jury that life without possibility of parole means that no parole is possible, ever " 155 5. Conclusion " 162 B. THE TRIAL COURT COMMITTED PREJUDICIAL ERROR BY FAILING TO LIMIT THE VICTIM IMPACT EVIDENCE PRESENTED
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