'prYFr~ ¥FAf\~ H"T'" ~ '.. ·.W0/l:.ii(:~ t .U· i.'.~ SU.' ·.Hkd :~ a,~ "t<Vit pJ.h V py PEOPLE: OF TH.E ST:\TE OF C,\.LfFOR.Nl\.,. .'"\ ,::. Y. ) JOI{;~< JOSFPJ-f Fi\\AA,.L/\.RC\ ) .> /\FPELl.A:NT~S OPENING BRIEF ~ ::-';')~ .~< ..,. '1""r': ~ -:-"t () <: ,:.. '~/'" {";._..,~ ~. ..~.\.. t,tvrL.(>.s.:·-, .,.;"(,,,,;.,-.,__ ,::':\'t;P<;;'·<~i.." , t';'".,.C.lu "t.'i.•. ,>r··U~1i:}i:c.:.i.s.-:.--.- .. .:-, '·~).:.tL.Juf)<.:.:r..,f ",H' '.-.v.J., of the. Smtt: of C[-\b'f;:H'n.iJ D)r tht~ v {'~';'t' COF}\t.' .."...... ". "'J rlf'.-,".- ....} ..... ~..\~";'0."P'..... HI»fORABLE J(}f.T>f J. RYAN, JUDGE JOEL hJl(SHENBAt:\j Sa.r ·t-<o. 049919 L>cputySLrie Pu,bUc DcD~ndcr 2.2:~ \{{1~I1 ,Street~ ~I'<;ntl1. .Fl<)()f S,1n Fnrnc1scu, (\dlf(nnia 94105 'Tek!)ho{v:: (.:~ IS} 9(v;'··5600 /\tl:Of.ncys for .·\.Pv~IL;;m. TABLE OF CONTENTS STATEMENT OF APPEALABILITY 1 STATEMENT OF THE CASE 1 STATEMENT OF FACTS 3 Guilt Phase 3 1. Prosecution Case 3 A. Denise Huber's Disappearance 3 B. The Discovery of Denise Huber"s Body 6 C. The Autopsy and Related Forensic Testing 7 D. The Searches ofAppellant's House and Warehouse 9 II. Defense Case .................................... 12 Penalty Phase 15 1. Introduction 15 II. Prosecution Case 18 III. Defense Case 26 ARGUMENT 78 TABLE OF CONTENTS I THE TRIAL COURT'S DENIAL OF APPELLANT'S INITIAL AND RENEWED MOTIONS FOR A CHANGE OF VENUE DEPRIVED HIM OF A FAIR TRIAL BY AN IMPARTIAL JURY AND A RELIABLE PENALTY DETERMINATION IN VIOLATION OF THE SIXTH, EIGHTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION, AND REQUIRES REVERSAL OF THE ENTIRE JUDGMENT 78 A. Introduction 78 B. Factual and Procedural Background 81 1. The Venue Hearing 81 2. The Questionnaires and Voir Dire of Prospective Jurors, and Post-Jury- Selection Proceedings 94 a. The Publicity Questionnaires 94 b. The Voir Dire of Prospective Jurors 95 c. Post-jury-Selection Proceedings 143 C. The Trial Court Erroneously Denied Appellant's Motions for Change ofVenue 152 1. Governing Legal Principles 152 2. The "Five Factors" Considered by California Courts in Deciding Whether the "Reasonable Likelihood" Standard Has Been Met Required a Change ofVenue 155 a. The Nature and Gravity ofthe Offense .... 155 II TABLE OF CONTENTS b. The Nature and Extent ofNews Coverage . 158 c. The Size of the Community 166 d. The Status of the Victim and the Accused ............................ 170 (i) The Victim 170 (ii) The Defendant 175 3. The Reasonable Likelihood That a Fair Trial Could Not Be Had Applied to Both the Guilt and Penalty Determinations 177 4. The Passage of Time Had No Effect on the Reasonable Likelihood That a Fair Trial Could Not Be Had 185 5. Retrospective Review on Appeal Clearly Demonstrates a Reasonable Likelihood That Appellant Did Not In Fact Receive a Fair Trial ... 191 6. Juror Assurances of Impartiality Do Not Justify the Trial Court's Refusal to Change Venue, Either Factually or Legally 196 7. The Facts That Defense Counsel Exhausted Their Allotted Peremptory Challenges, Requested Additional Peremptory Challenges, Expressed Dissatisfaction with the Composition of the Trial Jury, and Expressed Dissatisfaction with the Entire Venire Due to the Extraordinary Media Coverage ofThis Case, in and of Themselves Show That Appellant Was Not Tried by a Fair and Impartial Jury 201 III TABLE OF CONTENTS D. The Erroneous Denial of Appellant's Motions for a Change of Venue Requires Reversal of the Entire Judgment 207 II THE TRIAL COURT'S REFUSAL TO CONDUCT AN INDIVIDUALIZED, SEQUESTERED VOIR DIRE OF THE PROSPECTIVE JURORS REGARDING THEIR EXPOSURE TO PUBLICITY ABOUT THE CASE INDEPENDENTLY DENIED APPELLANT HIS RIGHTS TO TRIAL BY A FAIR AND IMPARTIAL JURY AND TO A RELIABLE PENALTY DETERMINATION, EXACERBATED THE REASONABLE LIKELIHOOD THAT A FAIR TRIAL WAS NOT HAD FROM THE REFUSAL TO CHANGE VENUE ALONE, AND CREATED ACTUAL PREJUDICE TO APPELLANT 209 III THE TRIAL COURT VIOLATED APPELLANT'S FUNDAMENTAL CONSTITUTIONAL RIGHTS AND COMMITTED PREJUDICIAL ERROR BY DELIVERING CALJIC NO. 2.06 220 A. Introduction 220 B. On the Facts of This Case, the Trial Court Prejudicially Erred by Giving CALJIC No. 2.06 220 IV A SERIES OF GUILT-PHASE INSTRUCTIONS IMPERMISSIBLY AND UNCONSTITUTIONALLY UNDERMINED AND DILUTED THE REQUIREMENT OF PROOF BEYOND A REASONABLE DOUBT 231 A. Introduction 231 IV TABLE OF CONTENTS B. The Instructions on Circumstantial Evidence Undennined the Requirement of Proof Beyond a Reasonable Doubt 232 C. Other Instructions Also Vitiated the Reasonable- Doubt Standard 235 D. This Court Should Reconsider Its Prior Rulings Upholding the Defective Instructions 240 E. Reversal Is Required 243 V THE TRIAL COURT PREJUDICIALLY ERRED, AND VIOLATED APPELLANT'S CONSTITUTIONAL RIGHTS, IN INSTRUCTING THE JURY ON FIRST DEGREE PREMEDITATED MURDER AND FIRST DEGREE FELONY-MURDER BECAUSE THE INDICTMENT CHARGED APPELLANT ONLY WITH SECOND DEGREE MALICE-MURDER IN VIOLATION OF PENAL CODE SECTION 187 245 VI THE TRIAL COURT COMMITTED REVERSIBLE ERROR, AND DENIED APPELLANT HIS CONSTITUTIONAL RIGHTS, IN FAILING TO REQUIRE THE JURY TO AGREE UNANIMOUSLY ON WHETHER APPELLANT HAD COMMITTED A PREMEDITATED MURDER OR A FELONY-MURDER BEFORE RETURNING A VERDICT FINDING HIM GUILTY OF MURDER IN THE FIRST DEGREE 253 VII THE ADMISSION OF VICTIM-IMPACT EVIDENCE VIOLATED EX POST FACTO PRINCIPLES AND APPELLANT'S RIGHTS TO DUE PROCESS AND A RELIABLE PENALTY DETERMINATION, AND REQUIRES REVERSAL OF THE DEATH JUDGMENT ..... 262 v TABLE OF CONTENTS A. Introduction 262 B. The Admission of the Victim-Impact Evidence Was Erroneous, Unconstitutional and Prejudicial, Especially Given the Massive Publicity Regarding the Victim's Parents Extending over Many Years Which Even Touched the Actual Trial Jurors 263 VIII THE TRIAL COURT ERRONEOUSLY, UNCONSTITUTIONALLY AND PREJUDICIALLY FAILED TO INSTRUCT THE JURY ON THE APPROPRIATE USE OF VICTIM-IMPACT EVIDENCE 281 IX THE TRIAL COURT COMMITTED REVERSIBLE ERROR, AND VIOLATED APPELLANT'S SIXTH, EIGHTH AND FOURTEENTH AMENDMENT RIGHTS TO DUE PROCESS AND A RELIABLE PENALTY DETERMINATION, BY ERRONEOUSLY SUSTAINING THE PROSECUTION OBJECTION TO MITIGATING EVIDENCE RELATING TO THE CHILDHOOD MOLESTATION OF APPELLANT BY HIS OLDER BROTHER 287 A. Introduction 287 B. The Proffered Testimony of Appellant's Sister Was Admissible for Relevant Non-Hearsay Purposes As Critical Mitigating Evidence, Both As an Affirmative Part ofAppellant's Penalty Case and to Rebut or Forestall the Prosecution's Case in Aggravation 289 c. Appellant Had a Federal Constitutional Right to Present the Proffered Evidence in Mitigation 296 Vl TABLE OF CONTENTS D. The Exclusion ofthe Proffered Evidence Requires Reversal ofthe Death Judgment 300 X THE DELIVERY OF CALJIC NO. 2.27 AT THE PENALTY PHASE IMPERMISSIBLY AND UNCONSTITUTIONALLY UNDERMINED AND DILUTED THE REQUIREMENT OF PROOF BEYOND A REASONABLE DOUBT AS TO THE ALLEGED FACTOR (B) CRIMINALITY 306 XI THE ADMISSION AND USE OF EVIDENCE OF UNADJUDICATED CRIMINAL ACTIVITY VIOLATED APPELLANT'S RIGHTS UNDER THE SIXTH, EIGHTH AND FOURTEENTH AMENDMENTS OF THE UNITED STATES CONSTITUTION, REQUIRING REVERSAL OF THE DEATH JUDGMENT 309 A. Introduction 309 B. The Use of Factor (b) Violated Appellant's Constitutional Rights, Including His Sixth, Eighth and Fourteenth Amendment Rights to Due Process and a Reliable Penalty Determination 310 C. The Alleged Criminal Activity Was Improperly Considered in Aggravation Because It Was Not Required To Be Found True Beyond a Reasonable Doubt by a Unanimous Jury 315 D. The Unadjudicated Prior Criminal Activity Alleged Against Appellant Was Outside Applicable Statutes of Limitations and Therefore Was Improperly Introduced As Evidence in Aggravation 316 Vll TABLE OF CONTENTS E. Conclusion 319 XII THE INSTRUCTIONS ABOUT THE MITIGATING AND AGGRAVATING FACTORS IN PENAL CODE SECTION 190.3, AND THE APPLICATION OF THESE SENTENCING FACTORS, RENDER APPELLANT'S DEATH SENTENCE UNCONSTITUTIONAL 320 A. The Instruction on Penal Code Section 190.3, Factor (a), and Application of That Sentencing Factor, Resulted in the Arbitrary and Capricious Imposition ofthe Death Penalty 321 B. The Failure to Instruct That Statutory Mitigating Factors Are Relevant Solely As Mitigators Precluded the Fair, Reliable and Evenhanded Application ofthe Death Penalty 322 C. The Failure to Require the Jury to Base a Death Sentence on Written Findings Regarding the Aggravating Factors Violated Appellant's Constitutional Rights to Meaningful Appellate Review and Equal Protection of the Law 323 D. Even If the Absence of the Previously­ Addressed Procedural Safeguards Does Not Render California's Death-Penalty Scheme Constitutionally Inadequate to Ensure Reliable Capital Sentencing, Denying Them to Capital Defendants Like Appellant Violates Equal Protection 326 Vlll TABLE OF CONTENTS XIII THE INSTRUCTION DEFINING THE SCOPE OF THE JURY'S SENTENCING DISCRETION, AND THE NATURE OF ITS DELIBERATIVE PROCESS, VIOLATED APPELLANT'S CONSTITUTIONAL RIGHTS, AND REQUIRES REVERSAL OF THE DEATH mDGMENT 332 A. Introduction 332 B. The Instruction Caused the Jury's Penalty Choice to Turn on an Impermissibly Vague and Ambiguous Standard That Failed to Provide Adequate Guidance and Direction 333 C. The Instruction Did Not Convey That the Central Determination Is Whether the Death Penalty Is Appropriate, Not Merely Authorized under the Law .... 337 D. The Instruction Did Not Tell the Jury That a Life Sentence Is Mandatory If the Aggravating Factors Do Not Outweigh the Mitigating Ones 340 E. The Instruction Did Not Tell the Jury That If They Determined That Mitigation Outweighed Aggravation, They Were Required to Return a Sentence ofLife without the Possibility of Parole 342 F. The Instruction Did Not Tell the Jury It Could Impose a Life Sentence Even IfAggravation Outweighed Mitigation 344 G. The Instruction Did Not Tell the Jury That Appellant Did Not Have to Persuade Them That the Death Penalty Was Inappropriate 345 lX TABLE OF CONTENTS H. Conclusion 346 XIV THE CALIFORNIA DEATH-PENALTY STATUTE AND INSTRUCTIONS ARE UNCONSTITUTIONAL BECAUSE THEY FAIL TO SET OUT THE APPROPRIATE BURDEN OF PROOF 347 A.