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Appellant's Reply Brief f' 'i 1 ,,~. ;-;- -., .•,.. ~ ,F--., ~ r· /,),,":1 \' il " .' .!, H},""1 COPV ~)\,J( h,:" ." ..~ ·..:"v·":J~'\ SUPREME COURT F~LED IN THE SUPREME COURT OF THE STATE OF CALIFORNIA APR .. 7 Z009 Fr~t;J~rlg.\ Ohlrloh Clerk PEOPLE OF THE STATE OF CALIFORNIA, K. Case No. S0625.62~~=~=="-"MtfeC::::Cep':""-fi"i""fy--- . Plaintiff and Respondent, vs. San Diego CoUnty Superior Court BRANDON ARNAE TAYLOR, No. SCD1113815 Defendant and Appellant. APPELLANT'S REPLY BRIEF Appeal from the Judgment of the Superior Court of the State of California for the County of San Diego The Honorable Frederick Link MICHAEL J. HERSEK State Public Defender' ALISON PEASE. Sr. Deputy State Public Defender Cal. State Bar No. 91398 80 1 K Street, Suite 1100 Sacramento, CA 95814-3518 Telephone(916) 322-2676 Attorneys for Appellant TABLE OF CONTENTS PAGE INTRODUCTION 1 I. THE TRIAL JUDGE ERRED IN DENYING APPELLANT'S MARSDEN MOTIONS BEFORE AND DURING THE COMPETENCY PROCEEDINGS '.' 2' II. THE TRIAL JUDGE ERRED IN FAILING TO' CONDUCT ADEQUATE VOIR DIRE IN VIOLATION OF APPELLANT'S CONSTITUTIONAL RIGHTS 15 III. CODE OF CIVIL PROCEDURE SECTION 223, APPLICABLE TO APPELLANT'S TRIAL, WAS UNCONSTITUTIONAL BECAUSE IT TREATED' CRIMINAL DEFENDANTS LESS FAVORABLY THAN CIVIL LITIGANTS . ~ . ~ ' ~ 29 ,~ IV. THE PROSECUTOR VIOLATED THE PRINCIPLES OF BATSON V. KENTUCKY DURING THE TWO JURY SELECTIONS IN THIS CASE ................... .. 30 . A. .Improper Use ofa Peremptory Challenge During the First Jury Selection 30 1. Expressing Uncertainty About the Death Penalty : '.' 30 2, Other Alleged Problems with Prospective Juror Brooks -. 37 3. Presence ofOne Minority Juror : 41 I I B. Improper Use ofPeremptory Challenges During the Second Jury Selection 42 1 . TABLE OF CONTENTS PAGE a. Al Fulton 44 b. Carol Doxtator 48 c. MadelYQ Estrada : 53 C. The Trial Judge Did Not Rule on Each ofthe Reasons Offered bythe Prosecutor For Striking Minority Prospective Jurors 56 D. This Court's Batson/Wheeler Jurisprudence Does Not Comport With That ofthe United States Supreme Court 59 , V. THE TRIAL COURT ERRED IN ALLOWING THEPROSECUTION TO CROSS-EXAMINE A DEFENSE EXPERT USING EVIDENCE ARISING OUT OF THE COMPETENCY PROCEEDINGS IN THIS CASE ; ~ 65 A. Proceedings in the Trial Court 65 B. Respondent's Arguments onAppeal 69 C. Applicable Law 70 D. Conclusion 74 VI. THE TRIAL JUDGE ERRED IN REFUSING TO INSTRUCT THE JURY ON THE ELEMENTS OF TRESPASS 76 .VII. THE TRIAL JUDGE ERRED IN FAILING TO INSTRUCT THE JURY REGARDING THE OFFENSE OF SECOND DEGREE MURDER ; 79 11 TABLE OF CONTENTS . PAGE VIII. THE TRIAL COURT ERRED IN INSTRUCTING THE JURY REGARDING FIRST DEGREE FELONY MURDER BECAUSE THE INFORMATION CHARGED APPELLANT WITH . SECOND DEGREE MALICE .MURDER IN VIOLATION OF PENAL CODE SECTION 187 , ,,' .. 80 IX, THE TRIAL JUDGE ERRED IN FAILING TO INSTRUCT THE JURORS THATTHEY MUST AGREE UNANIMOUSLY ABOUT EACH ESSENTIAL FACT OF THE MURDER CHARGE 83 X. THE TRIAL JUDGE'S ERRONEOUS INSTRUCTIONS REGARDING THE THREE FELONYSPECIAL CIRCUMSTANCES REQUIRE REVERSAL OF THOSE FINDINGS AND THE DEATH SENTENCE ,,., 84 . XI. THE CUMULATIVE EFFECT OF A SERIES OF INSTRUCTIONAL . ERRORS WAS PREJUDICIAL AND yIOLATED APPELLANT'S RIGHTS TO A FAIR TRIAL, TRIAL BY JURY, AND RELIABLE VERDICTS, REQUIRING REVERSAL OF TH~ ENTIRE JUDGMENT 86 XII. THE JURY INSTRUCTION REGARDING REASONABLE DOUBT,CALJIC No. 2,90, WAS CONSTITUTIONALLY DEFECTIVE ~ ,. '. '.,,,., .. ', 87 XIII. OTHER INSTRUCTIONS IMPERMISSIBLY UNDERMINED AND DILUTED THE REQUIREMENT OF PROOF BEYOND A REASONABLE DOUBT 88 111 . , TA}JLE OF CONTENTS PAGE . XIV. THE PROSECUTOR IMPERMISSIBLY BURDENED APPELLANTS RIGHT TO REMAIN SILENT BY COMMENTING ON APPELLANTS DECISION NOT TO TESTIFY AT THE GUILT PHASE OF HIS TRIAL ; 89 XV. DURING THE SELECTION OF THE SECOND JURY, THE TRIAL JUDGE ERRONEOUSLY INCLUDED PINPOINT .QUESTIONS IN THE JUROR QUESTIONNAIRE WHICH FAVORED THE PROSECUTION'S PURSUIT OF A JURY UNFAIRLY BIASED IN FAVOR OF THE DEATHPENALTY .. ; 90 XVI. THE TRIAL JUDGE ERRED IN FAILING TO ' LINIIT VICTIM IMPACT EVIDENCE 91 XVII. THE TRIAL COURT ERRED IN ADMITTING EVIDENCE OF PRIOR UNADJUDICATED ALLEGED CRIMINAL ACTIVITY AS AGGRAVATING EVIDENCE SUPPORTING A VERDICT OF DEATH 102 A. The Decision in Cunningham v. California 103 B. Roper v. Simmons and Alleged Criminal Activity Committed as a Juvenile ........................•. 106 C. Incident Involving Officer Cherski did not . Qualify as a Crime Under Factor B 111 D. Conclusion " 114 IV TABLE OF CONTENTS PAGE XVIII. THE TRIAL JUDGE PREJUDICIALLY ERRED IN ALLOWING THE PROSECUTOR TO INTRODUCE A SHOCKING AND INFLAMMATORY PHOTOGRAPH DURING APPELLANTS PENALTY RETRIAL 115 . XIX. APPELLANT'S DEATH SENTENCE SHOULD BE REVERSED BECAUSE THE TRIAL JUDGE FAILED TO GIVE A COMPLETE REASONABLE DOUBT INSTRUCTION AT THEPENALTY PHASE RE-TRIAL ; 121 XX. APPELLANT'S RETRIAL AFTER THE ORIGINAL JURY FAILEDTO REACH A PENALTY VERDICT VIOLATED HIS FEDERAL CONSTITUTIONAL RIGHTS 123 XXI. THE TRIAL JUDGE'S FAILURE TO COMPLY WITH THE MANDATE OF PENAL CODE SECTION 190.9 THAT ALL PROCEEDINGS IN A CAPITAL CASE BE RECORDED CONSTITUTES REVERSIBLE ERROR . ; , 128 XXII. THE PROCESS USED IN CALIFORNIA FOR DEATH- QUALIFICATIONOF JURIES IS UNCONSTITUTIONAL 130 XXIII. UNDER THE EIGHTH AMENDMENT, THE DEATH PENALTY IS A DISPORTIONATE SENTENCE FOR FELONY MURDER SIMPLICTER 131 . XXIV. APPELLANT'S CONVICTIONS AND DEATH SENTENCES. MUST BE REVERSED DUE. TO CUMULATIVE ERRORS 138 XXV. IF APPELLANT'S CONVICTION ON ANY COUNT IS REVERSED OR THE FINDING AS TO ANY SPECIAL CIRCUMSTANCE IS VACATED, HIS DEATH SENTENCE MUST BE REVERSED, AND THE CASE REMANDED FOR A NEW PENALTY PHASE TRIAL 140 v TABLE OF CONTENTS PAGE XXVI. THE CALIFORNIA DEATH PENALTY 'STATUTE AND INSTRUCTIONS ARE UNCONSTITUTIONAL BECAUSE THEY FAIL TO INSTRUCT THE JURY ON ANY PENALTY PHASE BURDEN OF PROOF ~ 144 XXVII. THE INSTRUCTIONS DEFINn~G THE SCOPE OF THE JURY'S SENTENCING DISCRETION AND THE NATURE OF ITS DELIBERATIVE PROCESS VIOLATED APPELLANTS CONSTITUTIONAL RIGHTS 150 XXVIII. THE FAILURE TO PROVIDE INTERCASE PROPORTIONALITY REVIEW VIOLATES APPELLANTS CONSTITUTIONAL RIGHTS 151 XXIX. CALIFORNIA'S USE OF THE DEATH PENALTY VIOLATES INTERNATIONAL LAW, THE EIGHTH AMENDMENT, AND LAGS BEHIND EVOLVING STANDARDS OF DECENCY 152 XXX. THE FAILURE TO REQUIRE WRITTEN FINDINGS ABOUT THE AGGRAVATING FACTORS DENIED APPELLANTS CONSTITUTIONAL RIGHTS TO MEANINGFUL APPELLATE REVIEW AND EQUAL PROTECTION OF THE LAW. ............................ .. 153 CONCLUSION 154 VI TABLE OF AUTHORITIES CASES PAGES(S) . Aldridge v. United States (1931) 283 U.S. 308 28 .Apodaca v. Oregon (1972) 406 U.S. 404 .. ..................................... .. 110 .Apprendi v. New Jersey (2000) 530 U.S. 466 : 104-105, 133, 144-149 Arizona v. Fulminante (1991) 499 U.S. 279 64 Atkins v. Virginia (2002) 535 U.S. 304 123, 126, 134-135 Ballew v. Georgia (1978) 435 U.S. 223 110 Barclay v. Florida (1983) 463 U.S. 939 ................................. .. .... .. 113 Batson v. Kentucky 476 U.S. 79 passim Blakely v. Washington (2004) 542 U.S. 296 104, 133, 144-149 Blockberger v. United States (1932) 284 U.S. 299 80-81 Booth v. Maryland (1987) 482 U.S. 496 ..................................... .. 93, 99 Brown v. Craven . (9th Cir. 1970) 424 F.2d 1166 .. ............................... .. 7 VB TABLE OF AUTHORITIES PAGES(S) Brown v. Louisiana (1979) 447 U.S. 323 ....................................... .. 110 Brown v. Sanders (2006) 546 U.S. 212 , 140-143 Buchanan v. Kentucky (1987) 483 U.S. 402. ; , 69 Caldwell v. Mississippi (1985) 472 U.S. 320 ' 138 Cargle v. State (Okla.Crim.App. 1996) 909 P.2d 806 94,98,99 Chapman v. California (1967) 386 U.S. 18 passim Clemons v. Mississippi (1990) 494 U.S. 738 passim Conde v. Henry (9th Cir. 1999) 198 F3d 734. ............................ .. ... 76 Coulter v. Gramley (7th Cir. 1996) 93 F3d 394 .. ................................ .. 42 County Court ofUlster County v. Allen (1979) 442 U.S. 140 ~ .. .. 86 Covarrubias v. Superior Court (1998)60 Ca1.AppAth 1168 16-17 Cunnigham v. California (2007) 549 U.S. 270 : passim . Vlll TABLE OF AUTHORITIES PAGES(S) Daniels v. Woodford (9th Cir. 2005) 428 F.3d 1181 7 Donnelly v. DeChristoforo . (1974) 416 U.S. 637 138 Drope v. Missouri . (1975) 420 U.S. 162 12 . Edelbacher v. Calderon (9th Cir. 1998) 160 F.3d 582 .... .'.... ....................... .. 126 Enmund v. Florida (1982) 458 U.S. 782 ~ ...................... 135 Estelle v. Smith (1981) 451 U.S. 454 12,69 Ford v. Wainwright (1986) 477 U.S. 399 ; 126 Furman v. Georgia (1972) 408 U.S. 238 136 Gardner v.. Florida, (1977)430U.S.~49 95,118,126,138 Gavieres v. United States (1911)220U.S.338 81 Gilmore v. Taylor . (1993) 508 U.S. 333 ' ~ 126 Godfrey v. Georgia (1980) 446 U.S. 420 : 94-95 IX TABLE OF AUTHORITIES PAGES(S) Graham v. Collins (1993) 506 U.S.461 0 0 •••••• 0 0 ••••••• 0 0 0 0 • 0 ••••• 0 •• 0 • 0 136 Gregg v. Georgia (1976) 428 U.S. 153 ~ ~ ..... .. 125, 134 Griffin v. California (1965) 390 U.S. 609 '. ............... .. 89 Hendricks Vo Calderon (9th Cir. 1995) 70 3d 1032 ................................. .. 118 Hicks v. Oklahoma (1980) 447 U.S. 343 0 ••••••••••••••• 82 Hopkins v. Reeves (1998) 524 U.S. 88 131- 132, 136 Hoveyv. Superior Court . (1980) 28 Cal. 3d 1 16-19 Hudson v. Rushen (9th Cir. 1982) 686 F.2d 826 .. ............................... .. 12 In re Hernandez ( 2006) 143 Cal.App.4th 459 : ~ ; ~ 71, 73 Johnson v. Louisiana (1972) 406 U.S. 356 , .. .... .. ... .. 110 Jones v. United States (1999) 526 U.S. 227 " 80, 82 Kennedy v. Louisiana . (2008) _ U.S._, 128 SoCt. 2641 0 •••••• 0 ••••••••• 135-137 x TABLE OF AUTHORITIES PAGES(S) Lindsay v. Normet (1972) 405 U.S. 56 77 Linton v. Perini (6th Cir. 1981) 656 F.2d 207 ~ 8 Lockett v. Ohio (1978) 438 U.S. 586 27, 136 Lott v. State (Okla.Crim.App. 2004) 98 P.3d 318 97-98 Mathews v. United States (1988) 455 U.S. 58 , 76 Miller-El v. Dretke (2005) 545 U.S. 231 , passIm Morgan v. Illinois (1992) 504 U.S. 719 : ~ 15 Payne v.
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