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IN THE CALIFORNIA COURT OF APPEAL

SECOND APPELLATE DISTRICT - DIVISION THREE

THE PEOPLE OF THE STATE OF CALIFORNIA, ) No. B216425


)
Plaintiff/Respondent, )
)
v. )
)
PHILLIP SPECTOR, )
)
Defendant/Appellant. )
)
)

Los Angeles County Superior Court No. BA255233


The Honorable Larry P. Fidler

APPELLANT’S REPLY BRIEF

DENNIS P. RIORDAN, Esq., No. 69320 CHARLES SEVILLA, Esq., No. 45930
DONALD M. HORGAN, Esq., No. 121547 1010 Second Ave., 1825
RIORDAN & HORGAN San Diego CA 92101
523 Octavia Street Telephone: (619) 232-2222
San Francisco, CA 94102
Telephone: (415) 431-3472

Attorneys for Appellant


PHILLIP SPECTOR
TABLE OF CONTENTS

I. THE INTRODUCTION AGAINST APPELLANT SPECTOR OF


TESTIMONIAL STATEMENTS BY THE TRIAL JUDGE
VIOLATED HIS STATE STATUTORY AND FEDERAL
CONSTITUTIONAL RIGHTS AND REQUIRES REVERSAL. . . . . . . . . . . . . . 1

A. Introduction. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

B. Respondent’s Claim of “Forfeiture” .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

C. Judge Fidler’s Statements and Gestures on the Video


Were Hearsay . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

D. The Prosecution’s Use of Judge Fidler’s Statements


Violated Crawford. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

E. Judge Fidler’s Impermissible Dual Role. . . . . . . . . . . . . . . . . . . . . . . . . . . 12

F. The Error Was Prejudicial. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

1. Lintemoot’s Testimony and Gestures on the Videotape.. . . . . . . . . 15

2. CALCRIM 3550. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

3. Respondent’s Assessment of the Trial Facts . . . . . . . . . . . . . . . . . . 18

4. The Difference Between The First and Second Trials. . . . . . . . . . . 23

II. THE TRIAL COURT COMMITTED REVERSIBLE ERROR UNDER


STATE AND FEDERAL LAW BOTH IN ADMITTING EVIDENCE
OF UNCHARGED BRANDISHING OFFENSES AND IN
INSTRUCTING THE JURY ON HOW THAT EVIDENCE COULD
BE CONSIDERED. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

A. Introduction. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

-i-
Table of Contents continued

B. The Trial Court’s Instruction That The §1101(b) Evidence


Could be Used To Establish “That the Defendant Was the
Person Who Committed The Offense Alleged In This Case”
Requires Reversal. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

C. The Uncharged Offenses Were Not Admissible Under an


“Absence of Mistake, Accident, or Suicide” Theory. . . . . . . . . . . . . . . . . 33

D. The Uncharged Offense Evidence Was Inadmissible


on a Motive Theory. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37

1. The Prosecution’s Motive Theory in This Case


Necessitated an Impermissible Inference Regarding
Spector’s Character.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39

2. The Admission of the Uncharged Offenses Was


Clear Error Because of the Absence of a Supportable
Theory of Identity or Common Plan or Design. . . . . . . . . . . . . . . . 41

3. The Record Evidence Does Not Establish the Similarity


Between Charged And Uncharged Offenses . . . . . . . . . . . . . . . . . . 44

E. The Trial Court Did Not Properly Instruct on the Definition


of Motive. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46

F. The Trial Court Did Not Properly Exercise Its Discretion


Under Evidence Code Section 352. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48

G. The Trial Court Improperly Allowed the Prosecution to Argue


That Appellant’s Conduct Demonstrated a Pattern. . . . . . . . . . . . . . . . . . . 53

H. There Was Prejudice. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55

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Table of Contents continued

III. ADMISSION OF THE TESTIMONY OF VINCENT TANNAZZO


CONCERNING APPELLANT’S PROFANE STATEMENTS
ABOUT WOMEN A DECADE BEFORE THE CHARGED OFFENSE
WAS REVERSIBLE ERROR. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56

A. Introduction. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56

B. The Tannazzo Testimony was Inadmissible Because Intent


Was Not in Dispute. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57

C. The Tannazzo Testimony Was Not Admissible as a


“Generic Threat”. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59

1. The First Statement.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59

a. The Substance of the Statement . . . . . . . . . . . . . . . . . . . . . . 59

b. The Passage of Time. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63

c. The Circumstances Surrounding the Threat . . . . . . . . . . . . . 61

d. Other Evidence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63

2. The Second Statement. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64

D. The Remainder of the Tannazzo Testimony Was


Inadmissible. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64

E. The Tannazzo Testimony Was Barred by Evidence Code


Section 352 and the Federal Due Process Clause. . . . . . . . . . . . . . . . . . . . 65

F. The Court’s Instructional Error Exponentially Compounded


the Prejudice of Its Error in Admitting the Tannazzo Testimony. . . . . . . . 66

IV. PROSECUTION MISCONDUCT DURING FINAL ARGUMENT


PREJUDICED APPELLANT’S RIGHT TO A FAIR TRIAL.. . . . . . . . . . . . . . . 68

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Table of Contents continued

A. The Misconduct Arguments are Not Forfeited . . . . . . . . . . . . . . . . . . . . . . 68

B. The Prosecution’s “Machinations of the Truth”Theme


Was the Context for the “Hide the Truth” Argument with
Respect to the Expert Witnesses. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72

C. Arguing the Defense Was a “Pay to Say” Case in Which the


Defense Paid Experts to Give Preposterously False Evidence to
“Hide the Truth” Was Not Supported By the Evidence and
Was Misconduct. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75

D. There Was No Evidence the Experts Were Bought to Say


Anything the Defense Desired. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77

E. There Was Prejudice... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82

CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83

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TABLE OF AUTHORITIES

CASES

Berger v. U.S. (1935) 295 U.S. 78 17, 72

Brown v. Lynbaugh (5t h Cir. 1988) 843 F. 849 12, 14

Chapman v. California (1967) 386 U.S. 18 13

County Court of Ulster County v. Allen (1979) 442 U.S. 140 31

Crawford v. Washington (2004) 541 U.S. 36 2, 11

Davis v. Washington (2006) 547 U.S. 813 12

Greenboam v. State (Ind.App. 2006) 766 N.E.2d 1247 24

Harvey v. State (1979) 604 P.2d 586 48

Hassoldt Patrick Media Group, Inc. (2000) 84 Cal. App.4th 153 24, 42

In re Murchison (1955) 349 U.S. 133 12

Melendez-Diaz v. Massachusetts (2009) 129 S.Ct. 2527 11, 22

Ouber v. Guarino (1st Cir. 2002) 293 F.3d 19 23

People v. Abbaszadeh (2003) 106 Cal.App.4th 642 5, 30

People v. Albertson (1944) 23 Cal.2d 550 45

People v. Alcala (1984) 36 Cal.3d 604 24

People v. Antick (1975) 15 Cal.3d 79 54

People v. Arias (1996) 13 Cal.4th 92 65, 72

People v. Armstead (2002) 102 Cal.App.4th 784 27

-v-
People v. Asbury (1985) 173 Cal.App.3d 362 71

People v. Bain (1971) 5 Cal.3d 839 76

People v. Becerra (2008) 165 Cal.App.4th 1064 81

People v. Bennett (1969) 276 Cal.App.2d 172 14

People v. Bentley (1955) 131 Cal.App.2d 687 83

People v. Bolton (1979) 23 Cal.3d 208 14, 17

People v. Brooks (1979) 88 Cal.App.3d 180 23

People v. Burns (1987) 189 Cal.App.3d 734 50

People v. Cardenas (1982) 31 Cal.3d 897 13

People v. Cartier (1960) 54 Cal.2d 300 60

People v. Chaney (2007) 148 Cal.App.4th 772 5

People v. Collins (1968) 68 Cal.2d 319 14

People v. Crittenden (1994) 9 Cal.4th 83 5, 71

People v. Cunningham (2001) 25 Cal.4th 926 54, 71

People v. Davis (2009) 46 Cal.4th 539 45, 50, 61

People v. Deeney (1983) 145 Cal.App.3d 647 37

People v. Dees (1990) 221 Cal.App.3d 588 29

People v. Demetrulias (2006) 39 Cal.4th 1 4, 66, 69

People v. Dennis (1998) 17 Cal.4th 468 4, 68

People v. Duncan (1945) 72 Cal.App.2d 247 62

-vi-
People v. Ewoldt (1994) 7 Cal.4th 380 passim

People v. Farnam (2002) 28 Cal.4th 107 4, 68

People v. Gallego (1990) 52 Cal.3d 115 45

People v. Gibson (1976) 56 Cal.App.3d 119 47, 54

People v. Guerrero (1976) 16 Cal.3d 719 25

People v. Harris (2005) 37 Cal.4th 310 28

People v. Karis (1988) 46 Cal.3d 612 passim

People v. Lang (1989) 49 Cal.3d 991 60

People v. Love (1980) 111 Cal.App.3d Supp. 1 39

People v. Marquez (1992) 1 Cal.4th 553 69, 71

People v. Mattson (1990) 50 Cal.3d 826 5

People v. McCray (1997) 58 Cal.App.4th 159 60

People v. McGreen (1980) 107 Cal.App.3d 504 75, 81

People v. Morris (1991) 53 Cal.3d 152 64

People v. Norwood (1972) 26 Cal.App.3d 148 5

People v. Ogunmola (1989) 39 Cal.3d 120 23

People v. Pantages (1931) 212 Cal. 237 83

People v. Peete (1946) 28 Cal.2d 306 50

People v. Perry (1972) 7 Cal.3d 756 74

People v. Pic'l (1981) 114 Cal.App.3d 824 74

-vii-
People v. Riel (2000) 22 Cal.4th 1153 5

People v. Rivera (2003) 107 Cal.App.4th 1374 5

People v. Robinson (1946) 73 Cal.App.2d 233 14

People v. Roder (1983) 33 Cal.3d 491 31, 32, 71

People v. Rucker (1980) 26 Cal.3d 368 14, 18

People v. Sandoval (1992) 4 Cal.4th 15 passim

People v. Scaffidi (1992) 11 Cal.App.4th 145 5

People v. Scheer (1998) 68 Cal.App.4th 1009] 41

People v. Scott (1978) 21 Cal.3d 284 5

People v. Tafoya (2007) 42 Cal.4th 147 4

People v. Turner (1994) 8 Cal.4th 137 8, 9, 17

People v. Vance (2010) 188 Cal.App.4th 1182 70

People v. Wattier (1996) 51 Cal.App.4th 948 6

People v. Weatherford (1945) 27 Cal.2d 401 18

People v. Wells (1893) 100 Cal. 459 84

People v. Wesson (2006) 138 Cal.App.4th 959 50

People v. Whisenhunt (2008) 44 Cal.4th 174 34, 60, 75

People v. White (1958) 50 Cal.2d 428 83

People v. Young (2005) 34 Cal.4th 1149 82

State v. Lassiter (S.D. 2005) 692 N.W.2d 171 40

-viii-
Surprenant v. Rivas (1st Cir. 2005) 424 F.3d 5 54

Tyler v. Swenson (8th Cir. 1970) 427 F.2d 412 12

United States v. Cunningham (7th Cir. 1996) 103 F.3d 553 48

United States v. Foskey (D.C. Cir. 1980) 636 F.2d 517 49

United States v. Kojayan (9th Cir. 1993) 8 F.3d 1315 67

United States v. Manafzadeh (2d Cir. 1979) 592 F.2d 81 37

United States v. Sampson (3rd Cir. 1992) 980 F.2d 883 25

United States v. San Martin (5th Cir. 1974) 505 F.2d 918 51

United States v. Thomas (7th Cir. 2003) 321 F.3d 627 54

Vorse v. Sarasy (1997) 53 Cal.App.4th 998 51

STATUTES

Evid. Code §703 12, 13

Evid. Code §1101 passim

Evid. Code, section 1221 7

Evid. Code section 1290, et. seq 6

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I. THE INTRODUCTION AGAINST APPELLANT SPECTOR OF
TESTIMONIAL STATEMENTS BY THE TRIAL JUDGE
VIOLATED HIS STATE STATUTORY AND FEDERAL
CONSTITUTIONAL RIGHTS AND REQUIRES REVERSAL

A. Introduction
Appellant Spector has challenged the admission at his retrial of a video containing
factual assertions and gestures made by his trial judge at a hearing outside the presence of
the jury at Mr. Spector’s first trial. Respondent fairly recapitulates Spector’s claims: “Not
contesting the admission of Lintemoot’s prior testimony and visual demonstration,
appellant instead complains that the evidence of the trial court’s participation in the
[videotaped] examination of Lintemoot was inadmissible hearsay, infringed on his Sixth
Amendment right to confront witnesses, and violated his state and federal constitutional
rights to be present at the prior hearing and to have the trial judge not testify in his case.”
(Respondent’s Brief [“RB”], 55.)
In its responsive briefing to these claims of error, respondent expends far fewer
pages arguing that the video was properly admitted than it does contending that the claims
of error were waived or that the errors were harmless. That was an inevitable tactical
decision because no California court (or, apparently, any court in this nation) has ever
approved admitting the out-of-court statements of the very judge presiding over a
defendant’s trial as evidence of that defendant’s guilt, much less the posting during
closing arguments of a photo of the trial judge as one of the prosecution’s principal
witnesses.
As will be demonstrated below, the state’s assertion that Mr. Spector’s claims of
statutory and constitutional error were waived below is frivolous, as timely and specific
objections to the video containing the trial judge’s comments and gestures were made
before the video was admitted. As to the issue of prejudice, this prosecution mistried
once; the guilty verdict at appellant’s retrial was returned only after lengthy jury
deliberations; and the evidentiary error raised here bore on the most important factual

1
issue in the case. These facts alone defeat the state’s claim of harmless error.
Nonetheless, because the state advances numerous misleading contentions concerning the
strength of the trial evidence, and because the issue of prejudice arises again as to Mr.
Spector’s other appellate claims, appellant will reply to the state’s harmlessness argument
at some length.
B. Respondent’s Claim of “Forfeiture”
The state concedes, as it must, that before the video containing Judge Fidler’s
statements was offered and admitted into evidence, appellant’s counsel objected to its
admission on “hearsay and Crawford1 grounds....” (RB, at 60.) Indeed, citing Crawford,
the defense objected that the “video has the court making certain statements about what it
observed and the court doing that in a way that became testimony, and it cannot be cross-
examined.” (46 RT 9141; see also 46 RT 9142 -9143: “By taking a clip from a previous
trial, we are denied the right to cross-examine or to correct a record...[I]f the testimony
had come in in this proceeding, we would have had the right to cross-examine, and we
didn’t.”) The defense also objected that the video was used to cross-examine an expert,
and that material used to test the opinion of an expert does not thereby become
admissible. (46 RT 9140.)
Despite these timely objections on the grounds raised here on appeal, respondent
now claims that “appellant forfeited his claims regarding the videotape by failing to make
timely and specific objections below.” (RB 57-60.) The claim is utterly lacking in merit.
As the state’s brief establishes, the prosecution first made use of the video
containing Judge Fidler’s statements during the cross-examination of a defense witness,
Dr. Lakshmanan, the Los Angeles Medical Examiner. (RB, at 59.) Expert witnesses are
frequently examined on the basis of materials that then are not admitted into evidence. At
no point during the prosecution’s examination of Lakshmanan did the prosecution attempt

1
Crawford v. Washington (2004) 541 U.S. 36.

2
to admit the video, much less indicate an intention to rely on Judge Fidler’s statements as
evidence of Spector’s guilt or innocence. Because the state had not attempted to admit the
video, the only objection the defense could have made was to the use of the video exhibit
as a basis for questioning Lakshmanan, and, as the state concedes, Spector’s counsel
made that objection. (RB, at 59, citing 28 RT 6309-6310.)
The prosecution played the video for a second time during its cross-examination of
defense expert Spitz. Again, the state made no attempt to admit the video during its
questioning of Spitz, so any objection to the video’s admission or the evidentiary use of
Judge Fidler’s statements would have been meaningless. What the defense could and did
object to was the displaying of Judge Fidler’s comments to the jury during Spitz’s
questioning. (RB, at 59, citing 34 RT 6624.)
Appellant’s appellate challenge is not to the fact that the video was shown to the
jury, although defense counsel’s objection to that display was well-taken, but to the
admission of Judge Fidler’s statements on the video as substantive evidence of
appellant’s guilt. Spector’s objection on hearsay and Crawford grounds to the video’s
admission was made both as soon as the prosecution made clear its intention to use the
video for that purpose, and before the court admitted the video into evidence. No
California case, and certainly none cited by respondent, has ever held that a specific
objection to evidence made before that evidence is admitted, as was the case here, can be
deemed untimely for the purpose of preserving that issue for appeal.
The state apparently contends that appellant Spector was required to object to
Judge Fidler’s videotaped statements when the state first displayed the video during its
cross-examination of Doctor Lakshmanan and later during its cross of Doctor Spitz. (RB
at 59.). As noted, defense counsel Weinberg did indeed object to the video’s use on those
occasions. But Spector’s counsel could not object to the admission of Judge Fidler’s
statements at that juncture because no attempt was made to move them into evidence at
that time. The questions put to these two witnesses by the prosecution based on the video

3
were not evidence; the only evidence admitted during the cross-examination of
Lakshmanan and Spitz was their sworn answers, not the statements of Lintemoot on the
video, much less the comments of Judge Fidler.
The principal case cited by the state, People v. Demetrulias (2006) 39 Cal.4th 1,
20-22, held that an objection to testimony on relevancy grounds was not specific enough
to preserve an objection on the ground of inadmissible character evidence, and an
objection made several days after the testimony was admitted on the appropriate
“character evidence” grounds was too late to be timely. Demetrulias simply stands for the
proposition that a specific objection must be made before evidence is admitted. The state
misstates the Demetrulias holding by asserting it requires an objection before the
evidence is “produced,” whatever that means (e.g., produced in discovery?). The
Demetrulias discussion does not contain the word “produced.” 2
The prosecution could not have asked the jury in its closing argument to consider
the videotaped testimony of Lintemoot or the accompanying comments of Judge Fidler to
be proof of guilt unless and until the video was offered and admitted into evidence.
Before the video’s admission, counsel for Mr. Spector indisputably made the timely and
specific objections that are the basis of his claims here. The trial court fully understood
the nature of appellant’s objections when ruling his comments on the video to be
admissible evidence. (See People v. Scott (1978) 21 Cal.3d 284, 290 [“Preliminarily, we

2
People v. Tafoya (2007) 42 Cal.4th 147, 166, cited by respondent at page 59 of its
brief, simply stands for the proposition that a confrontation clause objection cannot
ordinarily be raised on appeal if it was not made during trial. (Id., citing People v. Lewis
and Oliver (2006) 39 Cal.4th 970, 1028 fn. 19 [defendants forfeited confrontation clause
claim by failing to raise it at trial].) People v. Farnam (2002) 28 Cal.4th 107, 153 and
People v. Barnett 91998) 17 Cal.4th 1044, 1122, stand for nothing more than the
proposition that testimony must be objected to on a specific ground when the testimony is
admitted to preserve that specific ground as a basis for an appellate challenge. These
cases are of no assistance to the state here, where the defense raised timely, specific
objections to the admission of the video.

4
dispose of the People’s contention that defendant waived his objections, first, by failing to
raise them with sufficient specificity before the trial court, and second, by declining to
renew them after the test results were known. We cannot accept the contention. ¶ .... ¶An
objection is sufficient if it fairly apprises the trial court of the issue it is being called upon
to decide.”])3 And, obviously, given the number of defense objections to the video’s use
overruled by Judge Fidler before and after its formal admission, there can be no serious
contention that an even earlier objection would have met a different fate. (People v.
Abbaszadeh (2003) 106 Cal.App.4th 642, 648 [A defendant need not object if it would
have been futile to do so]; People v. Sandoval (2001) 87 Cal.App.4th 1425, 1433, fn. 1
[same].) Appellant Spector has not forfeited his statutory and constitutional claims.4

3
Had defense counsel’s hearsay and Crawford objections been untimely, and they
certainly were not, the issue would still be ripe for decision on appeal. Because counsel
obviously sought to exclude the Fidler evidence, any failure to properly object to its
admission would be the basis for a claim of ineffective assistance of counsel. (People v.
Mattson (1990) 50 Cal.3d 826, 854; People v. Scaffidi (1992) 11 Cal.App.4th 145, 151);
People v. Norwood (1972) 26 Cal.App. 3d 148, 153 [“A matter normally not reviewable
upon direct appeal, but ... vulnerable to habeas corpus proceedings based upon
constitutional grounds may be considered upon direct appeal ....”]; see also People v.
Crittenden (1994) 9 Cal.4th 83, 146 [defense counsel waived issues of prosecution
misconduct for failure of trial counsel to object, but court reviewed the issue:
“Nonetheless, in view of the potential claim that counsel’s failure to object on the specific
grounds urged on appeal denied him his rights under the state and federal Constitutions to
the effective assistance of counsel, we review these claims on the merits”]; People v.
Chaney (2007) 148 Cal.App.4th 772, 780 [“we choose to address the issue on its merits
even though it was waived by failure to specifically object”]; People v. Rivera (2003) 107
Cal.App.4th 1374, 1379 [“Because appellant contends that any waiver would constitute
ineffective assistance of counsel, we will consider appellant's contention”].)

4
Furthermore, when an issue of forfeiture is close and difficult, the appellate court
will assume defendant has preserved the issue and address it on its merits. (E.g., People v.
Riel (2000) 22 Cal.4th 1153, 1192 [issue addressed on merits where defendant made a
motion to strike testimony the day after the witness testified]; accord People v. Champion
(1995) 9 Cal.4th 879, 908, fn. 6; People v. Wattier (1996) 51 Cal.App.4th 948, 953.)

5
C. Judge Fidler’s Statements and Gestures on the Video
Were Hearsay

As respondent acknowledges, “[h]earsay is an out-of-court statement that is


offered to prove the statement’s truth; hearsay is inadmissible absent an applicable
exception.” (RB, at 60.) In the context of the hearsay rule, of course, “out-of-court” refers
to any court proceeding other than the one in which the statement is being offered. Thus,
a statement made “in court” during a preliminary hearing or during a prior trial
nevertheless is an “out-of-court” statement for the purposes of the hearsay rule when
offered at a later trial, although such hearsay testimony may be admissible under a
statutory exception to the hearsay rule. (Evid. Code section 1290, et. seq.) The state does
not dispute that Judge Fidler’s videotaped statements were made “out-of-court.” Their
admissibility thus turns on the answers to two remaining questions. The first is whether
Judge Fidler’s taped statements were admitted for the purpose of proving the truth of his
statements; the second is, if so admitted, did the statements fall within a recognized
exception to the hearsay rule?
As to the purpose for which the statements were admitted, jurors at the second trial
watching the tape alone could not see where Lintemoot was pointing because her wrists
were facing away from the camera. Respondent concedes as much. (RB, at 57.) In the
course of arguing a motion to strike Lintemoot’s testimony on blood spatter, which the
trial court denied, defense counsel Weinberg noted that the video does not clearly show
where Lintemoot was pointing, and that on the video prosecutor “Jackson doesn’t know
exactly where she is pointing to.” (40 RT 7883.) Mr. Weinberg stated: “There is then a
confusion...The court then indicates the backs of the wrist. I don’t know what why [sic]
the court did that.” (Id.) Judge Fidler replied: “Because I had the best view in the
courtroom....I’m looking down on the witness. Everybody else — she didn’t show it
where the jury can see the top. The lawyers can’t even see it. The only person who could
see it is me, and I describe what I’m watching.” (Id.)

6
When he finally admitted the video over defense objection, Judge Fidler justified
his ruling by stating; “[A]t any time, in any trial, a court may define and describe what a
witness is doing ... I had the best view of Miss Lintemoot, so it was appropriate for me to
do it.” (46 RT 9142.) Judge Fidler thus stated in no uncertain terms that his statements
were intended to establish the truth of what he had claimed to have observed.
In closing, prosecutor Do argued that jurors should determine the meaning of
Lintemoot’s testimony by taking as true the taped statements and the gestures that Judge
Fidler concerning Lintemoot’s testimony. While playing the video tape in slow motion,
Do stated:
[T]he judge who had the best position, seated next to the
witness, looks over to what she’s done in that videotape, and
then he describes it both by words and by his own
demonstration, and this is what he did. So, when Mr.
Weinberg gets up here and tries to argue that it wasn’t here
and it’s here, remember this videotape because he’s going to
be telling you you can’t even believe your own eyes.

(47 RT 9295; see also 47 RT 9275: Lintemoot and “the judge both indicated the back
spatter was on Lana’s wrist on the outside.”)
Plainly, Judge Fidler admitted his own statements as proof of the truth of what
those statements asserted, and the prosecution urged the jury to consider the statements to
be just that.
As to the second question, there is no exception to the hearsay rule that would
allow an out-of-court statement by a judge concerning the testimony of a witness taken
during a hearing conducted outside the presence of the jury to be admitted for the truth of
what it asserts at a defendant’s trial. Respondent’s assertion that the “adoptive admission”
exception to the hearsay rule (Evid. Code, section 1221) constituted an appropriate
conduit for the admission of Judge Fidler’s statements (RB, at 63) was and remains
plainly meritless, as that rule reaches only the adoptive admission by a party of the truth

7
of statements made to that party; it has no application to a witness such as Lintemoot.
Respondent candidly admitted its blunder in its letter of October 15, 2010, filed in this
Court only a few days after Respondent’s Brief. But respondent’s egregious error
regarding the scope of the adoptive admissions exception to the hearsay rule fatally
infects the remainder of its argument on the hearsay question.
Other than section 1221 itself, respondent relies on People v. Turner (1994) 8
Cal.4th 137, 189 for the proposition that “[a] declarant’s statement is nonhearsay when it
places the declarant’s statement’s in context.” Quoting Turner, respondent argues that
“the trial court’s questions, clarifications, and gestures on the videotape of the prior
testimony of Jaime Lintemoot were admissible for the non-hearsay purpose of giving
context and meaning to Lintemoot’s responses.” (RB, at 61.) But Turner did not hold that
the statements of a third party declarant — a Mr. Scott — were “admissible for the non-
hearsay purpose of giving context and meaning” to a witness’s testimony; rather, Turner
permitted the admission of Scott’s statements to the defendant because Scott’s statements
“gave context and meaning to defendant’s admissions.” (RB, at 61, quoting 8 Cal.4th at
190; emphasis added) The defendant’s statements in Turner were admitted under
Evidence Code section 1220, an exception to the hearsay rule which, like section 1221,
excepts admissions by a party from the reach of the hearsay rule. Section 1220 and
Turner have no more application to the present case than does section 1221.
Furthermore, respondent’s claim that the trial court’s statements “were admissible
for the non-hearsay purpose of giving context and meaning to Lintemoot’s responses” and
“functioned only as questions that placed Lintemoot’s testimony in context” (RB, at 61,
62-63) is belied by the fact that the most critical exchange on the tape contained only
statements and gestures made by Judge Fidler and replies by prosecutor Jackson; there are

8
no “responses” from Lintemoot during this exchange.5 Judge Fidler’s statements and
gestures were coming in not to “place[] Lintemoot’s testimony in context,” as respondent
now contends, but rather to independently supplement the witness’s testimony, which,
standing alone, was quite unclear. (See 40RT 7883: Judge Fidler states that Lintemoot
“didn’t show it where the jury can see the top. The lawyers can’t even see it. The only
person who could see it is me, and I describe what I’m watching.”)
Of paramount importance, in Turner, “the jury was repeatedly instructed that they
were not to consider Scott's statements for the truth of the matter asserted, but merely to
give context to defendant's statements. . .” as well as that Scott’s statements were not
evidence, and the Supreme Court “presume[d] that the jury followed the court's
instructions.” (8 Cal.4th at 192.) Here, Judge Fidler did not instruct the jury to consider
his statements as providing mere context to Lintemoot’s testimony; and he certainly did
not bar the jury from considering his statements as evidence proving the truth of the
matter asserted, as was true of Scott’s statements in Turner. To the contrary, Judge Fidler
intended his statements and gestures to serve as “stand-alone” evidence as to what
Lintemoot pointed to in testifying about the blood spatter she claimed to have observed
on Lana Clarkson’s wrists. The prosecutor then urged jurors to consider Judge Fidler the

5
THE COURT [gesticulating]: I would say it’s from – if you take where the wrist
joint is, the two to three - inch radius would be in a circle from that point.
Would that be correct?

MR. JACKSON: The interior wrist, that portion of the wrist joint –

THE COURT: That’s the exterior, isn’t it? The interior would be this part, the
exterior would be where she was pointing.

MR. JACKSON: Actually, I was making a differentiation between this part of the
joint and that part of the joint.

(RT of May 4, 2007, at 1797-1799.)

9
best witness on the blood spatter point. That is why the prosecution took the remarkable
step in closing argument of displaying a photo of Judge Fidler among the photos of its
principal witnesses. (47 RT 9275, 9319, 9321.)
Respondent cites Evidence Code section 775 and People v. Harris (2005) 37
Cal.4th 310, 350 for the proposition that a judge may and should participate in the
examination of witnesses when to do so will assist the jury’s understanding of the
evidence. (RB, at 61.) But appellant does not here complain of any participation by
Judge Fidler in the examination of witnesses at his second trial. Nor does he contend that
Judge Fidler acted improperly in making comments concerning his observations during
the examination of Lintemoot during the hearing outside the presence of the jury during
Spector’s first trial. The issue is rather whether Judge Fidler’s out-of-court statements at
that time were admissible at Spector’s retrial to prove the truth of what they asserted.
Section 775 does not contain an exception to the hearsay rule, and neither Harris nor any
case interpreting section 775 is of any relevance to the hearsay issue now before this
Court.
Unless its meets the requirements of Evidence Code section 1290, even sworn
testimony taken at a court hearing is inadmissible hearsay when offered at a later trial.
Judge Fidler’s observations of Lintemoot’s prior testimony would have been admissible at
Spector’s retrial only if the judge had disqualified himself and subjected himself to cross-
examination by Spector’s counsel. His videotaped out-of-court statements constituted
hearsay as to which no exception to the hearsay bar applied, and the prosecution’s
dramatic reliance upon those statements to gain Spector’s conviction was grave error.
D. The Prosecution’s Use of Judge Fidler’s Statements Violated
Crawford

Respondent advances several contentions why the hearsay error did not violate the
Sixth Amendment right to confrontation, as defined in Crawford. First, it claims that the
Sixth Amendment “is inapplicable to the introduction of out-of-court statements for non-

10
hearsay purposes” and that “the confrontation clause is also not implicated by adoptive
admissions,” citing Turner, supra. (RB, at 64)
Here, the trial court’s questions and clarifying gestures on the
videotape did not violate appellant’s confrontation rights
because they served the non-hearsay purpose of giving
meaning and context to Lintemoot’s opinion testimony.
Moreover, as statements that Lintemoot concurred with, they
were adoptive admissions exempted from the confrontation
clause.

(Id.; emphasis added)


But respondent has already conceded in its letter to this Court that it erred in
relying on the “adoptive admissions” doctrine to defend the introduction of Judge Fidler’s
statements, and appellant has demonstrated above that the judge’s statements were indeed
admitted to prove the truth of what they asserted, rather than for a non-hearsay purpose.
Respondent also argues that Judge Fidler’s statements were not “testimonial,” as
that term is defined by Crawford, and thus not subject to the constraints of the
Confrontation Clause. (RB, at 65.) The argument is frivolous. Crawford defined a
“testimonial” statement as "[a] solemn declaration or affirmation made for the purpose of
establishing or proving some fact" which is made “under circumstances which would lead
an objective witness reasonably to believe that the statement would be available for use at
a later trial.” (541 U.S. at 51-52; accord, Melendez-Diaz v. Massachusetts (2009) 557
U.S. __, 129 S.Ct. 2527.) Such statements need not be sworn. (Crawford, 541 U.S. at 51-
52.) Crawford emphasized that it is the “involvement of government officers in the
production of testimonial evidence..., whether the officers are police or justices of the
peace” that gives rise to the risks of unreliability that the Confrontation Clause was
designed to protect against. (Id.)
Given this definition, it is simply preposterous to suggest that a statement by a
judge in court in the midst of criminal trial proceedings, which indisputably was “made

11
for the purpose of establishing or proving some fact" about the testimony in that
proceeding, and which was both transcribed by a court reporter and preserved by
videotape, is not ‘testimonial’ within the meaning of Crawford. It is nonsense to argue,
as respondent does, that the admission of Judge Fidler’s statements can be justified under
the holding of Davis v. Washington (2006) 547 U.S. 813, which held nothing more than
that “[s]tatements are nontestimonial when made in the course of police interrogation
under circumstances objectively indicating that the primary purpose of the interrogation is
to enable police assistance to meet an ongoing emergency.” (Id., at 822.) Davis has
nothing remotely to do with judicial statements made during the course of criminal
proceedings. The admission of Judge Fidler’s statements in violation of Crawford’s
requirement of cross-examination deprived appellant Spector of his Sixth Amendment
right to confrontation.
E. Judge Fidler’s Impermissible Dual Role
Due process is denied to a defendant where the trial judge gives evidence against
him. (Brown v. Lynbaugh (5t h Cir. 1988) 843 F. 849, 851 [“We conclude that Brown was
denied a fair trial when the state was allowed to establish the essential elements of the
crime of escape through the testimony of the presiding trial judge.”]; see also In re
Murchison (1955) 349 U.S. 133 [judge may not serve as fact finder in a contempt
proceeding in which he would also be a witness]; Tyler v. Swenson (8th Cir. 1970) 427
F.2d 412, 416 [A judge cannot serve as a material witness as well as the trier of fact.)] In
California, a judge cannot testify in a civil or criminal case unless he first discloses the
nature of his testimony to the parties and offers them a chance to object; if any such
objection is lodged, the judge must declare a mistrial and recuse himself. (Evid. Code §
703.)
In arguing that a mistrial and recusal was not required, respondent asserts that:
“The trial court’s questions and gestures merely put Lintemoot’s testimony into context
and were not testimony.” (RB, at 65.) The contention that Judge Fidler’s statements were

12
not admitted as “testimony” has been fully rebutted above,6 but it rings especially hollow
in light of the fact that in closing argument the prosecution placed Judge Fidler’s photo
before the jury as one of its witnesses. When the defense objected and asked Judge Fidler
to instruct the jury that “the court is not a witness for either party” (47 RT 9319), the court
denied the request, ruling that the prosecution’s use of the video in closing argument was
not error. (47 RT 9320-9321)
At least at the point in closing when the prosecution categorized the trial judge as
one of their chief witnesses, Judge Fidler was required to declare a mistrial and allow the
matter to be tried before another judge, permitting Judge Fidler to be called as a witness,
and, if the prosecution chose that course, to be cross-examined by the defense. (Evid.
Code § 703.) The failure to declare a mistrial was another source of grave trial error.
F. The Error Was Prejudicial
Appellant Spector’s case was sufficiently close that the errors described in this
argument must be held prejudicial under either a Chapman or Watson standard.
(Chapman v. California (1967) 386 U.S. 18, 23; People v. Watson (1956) 46 Cal.2d 818,
836.) There is at least a reasonable probability of a different outcome. The first trial,
after two weeks of deliberations and four votes, reported itself solidly deadlocked at 7 to
5, and, after further deliberations proved futile, a mistrial was declared. The reason for
that deadlock was stated by the trial judge: "We don't know how the gun got in her
mouth." (FT 11878.)
Even with the prosecution improperly making the trial judge a witness who
supported the prosecution theory of the case, the second jury deliberated over nine days.
Courts have considered considerably shorter deliberations as indicia of the closeness of a
case. (See, e.g., People v. Cardenas (1982) 31 Cal.3d 897, 907 [deliberations of 12 hours

6
Respondent’s claim that the testimony was not timely objected to and thus
“Evidence Code section 703 does not afford appellant relief’” (RB, at 66) has also been
refuted in the above section.

13
represented “graphic demonstration of the closeness of this case”]; People v. Woodard
(1979) 23 Cal.3d 329, 341 [deliberations of six hours indicates case “was far from open
and shut”]; People v. Rucker (1980) 26 Cal.3d 368, 391 [nine hours of deliberations
underscores fact that defense was strong]; People v. Collins (1968) 68 Cal.2d 319, 332
[approximately eight hours of deliberations sign of closeness of case]; People v. Bennett
(1969) 276 Cal.App.2d 172, 177, fn. 10 [10 hours of deliberations indicative of jury
doubts regarding prosecution’s case].)
Respondent advances about a half dozen arguments in support of its contention
that the admission of Judge Fidler’s videotaped, out-of-court statements, and the use of
that evidence in the prosecution’s closing was harmless. These contentions, some self-
contradictory, will be discussed below.
Initially, however, a claim that respondent fails to address in its brief must be
noted: i.e., irrespective of the specific testimony tendered by the trial judge, the very fact
that Judge Fidler permitted himself to be used as a prosecution witness, thereby placing
his credibility in service of the prosecution’s case, deprived appellant of a fair trial. “It is
difficult to see how the neutral role of the court could be more compromised, or more
blurred with the prosecutor's role, than when the judge serves as a witness for the state.”
(Brown v. Lynaugh, 843 F.2d at 850.) “[T]he members of the jury are apt to give great
weight to any hint from the judge as to his opinion on the weight of the evidence or the
credibility of the witnesses....” (People v. Robinson (1946) 73 Cal.App.2d 233, 237.)
Respondent concedes that “a biased trial judge’ is one of the structural errors that
requires reversal without any showing of specific prejudice. (RB, at 67, citing
Washington v. Recuenco (2006) 548 U.S. 212, 218-219 & fn.2.) Under California law,
testifying for the prosecution establishes a disqualifying bias as a matter of law. Reversal
is required on that basis alone.
//

14
1. Lintemoot’s Testimony and Gestures on the Videotape
Respondent observes that Lintemoot’s testimony concerning blood spatter on
Clarkson’s wrists was an important piece of evidence used to show that “Clarkson could
not have shot herself.” (RB 55.) Respondent argues, however, that: “The jury...would
have come to the same conclusion about the location of the spatter even without the trial
court’s questioning and gesturing.” (RB, at 68.) That contention is rebutted by the
prosecution’s fervent embrace of the Fidler evidence at trial.
Lintemoot’s testimony and work in the case was initially poorly documented and
vague.7 The prosecution knew this very early in the investigation. In February 2004, well
before trial, there was a meeting held where the prosecution criticized the lack of precise
location of spatter in Lintemoot’s notes or in the photos she directed be taken. (18 RT
3386; 28 RT 5598; Exhibit 608.)
In her trial testimony Lintemoot initially agreed with appellant where the
undocumented spatter was located.8 After she was excused, the prosecution phoned her
and told her “there was some confusion as to the area the blood spatter was in and asked
me to come back and clarify that.” (18 RT 3385.) On recall, she testified she did not
agree with appellant’s counsel. She testified she saw spatter in the wrist joint with a
radius of 2-3 inches. (18 RT 3391.) In this regard, it must be noted that Dr. Pena, who
conducted the autopsy, did not mention any spatter on the back of Clarkson’s hands when
he examined her. Photographs taken do not show spatter. (28 RT 5600.) Clarkson’s

7
In Lintemoot’s report, she identified two areas - a small area of stain and a large
smear, both on the back of Clarkson's left hand, between the forefinger and the thumb as
follows: "left wrist – outside ‘blood splatter'"; "left wrist – inner larger area." (Exhibit
613.)
8
Lintemoot testified she did not recall (and did not document) spatter being on the
left half of the back of the left hand or on the right side of the back of the right hand.
(18RT 3297.) She could not point to one photo taken of the back of Clarkson’s wrists.
(18RT 3389.)

15
body was washed by his office afterward. (Id.)
Needless to say, Lintemoot’s statements about the location of spatter on the back
of Clarkson’s wrists tested her competence and credibility. Her testimony was important
to justify Dr. Herold’s change of position from the first trial (where Herold conceded that
there was no forensic evidence inconsistent with the conclusion Ms. Clarkson shot
herself) to then testifying at the second trial that if there were blood spatter evidence as
Lintemoot testified on the back of the wrists, then Clarkson did not shoot herself. (26 RT
5069, 5071, 5276.)
As respondent notes, when Lintemoot pointed to her hands on the videotape, her
wrists were away from the camera. (RB 57.) Given her failures to direct that detail-
revealing photographs be taken of Clarkson’s wrists (which was her responsibility) or to
contemporaneously document the spots with precision, and given her testimonial flip-
flopping, the judge’s videotaped comments about the spatter location became critical.
(See appellant’s accurate description of her failure to take contemporaneous notes or
photos and contradictory testimony at 40 RT 7880-7883.) For that reason, the prosecutor
relied heavily on Judge Fidler’s videotaped statements in closing to argue its view of what
Lintemoot had seen on Clarkson’s wrists.
[J]ust so we are clear, let’s go through it in slow motion. She
is pointing to the backside of the wrist at the joint area, just
like she’s consistently testified. Now, the judge who had the
best position, seated next to the witness, looks over to what
she’s done in that videotape, and then he describes it both by
words and by his own demonstration, and this is what he did.

(47 RT 9295; italics added.)

Indeed, even here on appeal, the government endorses Judge Fidler’s statement at
trial that he “had the best view of Ms. Lintemoot.” (RB, at 69.) His judicial evidence was
particularly prejudicial to the defense as it was used by prosecutor Do in closing to attack
the integrity of defense counsel.

16
So, when Mr. Weinberg gets up here and tries to argue to you
that it wasn’t here and that it’s here, remember this videotape
because then he’s going to be telling you you can’t believe
your own eyes.

(47 RT 9295.)

2. CALCRIM 3550

Respondent relies in part on a concluding instruction given with all the other
instructions telling the jurors that what the court said during trial should not be deemed to
reflect its views on the evidence: “Do not take anything I said or did during the trial as an
indication of what I think about the facts, the witnesses or what your verdict should be.”
(CALCRIM 3550, quoted at RB 68; italics added.) This in no way addressed the issue of
the court’s statements on the video which were admitted as evidence as opposed to the
court’s non-evidentiary comments during the trial.
The instruction did not say the court’s video comments were not evidence because
the court believed they were proper evidence. That is why Judge Fidler denied the
defense request to instruct the jury that he was not a witness for either side. (47 RT 9319-
9321.) In doing so, he recognized that he was indeed a witness for the prosecution. Nor,
of course, was the jury “repeatedly instructed that they were not to consider [Judge
Fidler’s] statements for the truth of the matter asserted, but merely to give context to
[Lintemoot’s] statements,” as was the case in Turner. (8 Cal.4th at 192; see also People v.
Gutierrez (2009) 45 Cal.4th 789, 822-823 [noting the limits of a court’s power to
comment on evidence per article I, §10 of the Calif. Constitution and making comments
on evidence should make clear that his views are not binding but advisory only.])
The language of the cursory, untimely and off-point instruction could not cure the
error. As stated in Berger v. U.S. (1935) 295 U.S. 78, 85, "It is impossible to say that
the evil influence upon the jury of these acts of misconduct was removed by such mild
judicial action as was taken.” (See also People v. Bolton (1979) 23 Cal.3d 208, 215, fn. 5:

17
the judge “should aim to make a statement to the jury that will counteract fully whatever
prejudice to the defendant resulted from the prosecutor's remarks.”) Given that the trial
court saw no issue at all with the prosecution’s use of its video statements as evidence, it
is not surprising that Judge Fidler refused to inform the jury that his videotaped
statements were not evidence and should be ignored.
3. Respondent’s Assessment of the Trial Facts

Respondent’s statement of facts (RB 1-54) takes full advantage of the legal
presumption that credibility issues must be deemed decided in its favor. (People v.
Johnson (1980) 26 Cal.3d 557, 558 [when insufficiency of evidence is at issue, the
reviewing court "must review the whole record in the light most favorable to the
judgment"].) That rule, however, does not carry over into a prejudice calculus. Rather,
“[t]he facts ... must be considered in some detail because it is apparent from the
circumstantial nature of the evidence and the conflicting inferences which may be drawn
therefrom, that a very close case is presented, and, therefore, any error committed by the
trial court which materially affected the substantial rights of defendant and might have
resulted in a miscarriage of justice, must be deemed prejudicial and ground for reversal.”
(People v. Weatherford (1945) 27 Cal.2d 401, 403.)
Respondent relies on the “confession” to De Souza to argue the error is harmless.
(RB 69.) Suffice to say, this evidence came in at the first trial and the jury did not
convict. De Souza testified appellant said: “I think I killed somebody.” (14 RT 2532.)
But the strength of that evidence was undermined by: DeSouza’s lack of command of the
English language; his anxiety at the moment he heard a statement from appellant; the loud
sounds from the fountain between him and appellant; appellant being hard to understand
when drinking; appellant being drunk; and DeSouza telling police officers due to his
imperfect English he could not be sure what appellant said to him. (See AOB pp. 13-14.)
Furthermore, if appellant Spector witnessed Lana Clarkson kill herself accidentally or

18
suicidally with Spector’s weapon, he could well exclaim: “I think I killed somebody,”
without in any way meaning that he had fired the fatal shot himself.
Appellant’s erratic, drunken and confused conduct after the shot was fired (see RB
69) was consistent with a person facing the horror of a suicide or accidental shooting.
Wiping Clarkson’s face with a rag bespeaks of someone trying to render aid rather than to
facilitate a killing.
Reliance on the Evidence Code § 1101(b) evidence (RB, at 70) is reliance upon
erroneously admitted and instructed upon evidence. (See AOB, at 64-109, and Argument
II in this Reply Brief.) Suffice it to say here that appellant’s instances of misconduct with
the five women, taken from almost 30 years of his life and in no instance more recently
than eight years prior to Clarkson’s death, show no instance of ever putting a gun in a
woman’s mouth, much less firing it.
Respondent’s reliance on the medical examiner’s finding that this was a homicide
(RB, at 69-70) deserves a detailed response, given that it demonstrates how the medical
examiner’s position, based on pressure from the District Attorney’s office, continually
morphed over the years to conform to the latter’s theory.
Dr. Pena was the medical examiner. The original draft of his autopsy report had
no opinion regarding the manner of Clarkson’s death. (22 RT 4276.) Indeed, on July 22,
2003, six months after Clarkson’ death, Dr. Pena wrote that the physical evidence in the
case would not support a finding of homicide. (22 RT 4280.)
When Dr. Pena arrived at the scene on the day of Clarkson’s death, he was told
appellant confessed to the shooting. (21 RT 4049.) Dr. Pena admitted that after hearing
this, he had an inclination to prove that assessment correct. (21 RT 4089.) Thus, he was
hoping the shot was not intraoral, common in suicides, because an external shot would be
more consistent with a homicide. (21 RT 4050.) The alleged statement by appellant to De
Souza was one of the most important things in his consideration of the case. (22 RT
4298.)

19
Despite testifying that “from a medical standpoint” that he “couldn’t tell” whether
Lana Clarkson was holding the gun when it fired (21 RT 4052), Dr. Pena claimed he was
able to render an opinion of homicide by late July 2003 because he had received
significant information from Sheriff’s investigators. (22 RT 4288.) In support of his
non-scientific homicide opinion, Dr. Pena said he thought women did not commit suicide
by intraoral gunshots. However, after he filed his report in 2003, the Coroner’s office did
a study on the topic and found that such female suicides did occur with some frequency.
(32 RT 6233-6234.) Of all female suicides in Los Angeles County during the three years
of study, suicides from intraoral shootings amounted to 30% of them. (23 RT
4481–4482.)
Dr. Pena agreed the lack of a suicide note does not mean anything. But he told the
first jury that because there was no note he was aided in concluding it was a homicide
despite his knowledge that most suicides do not leave notes. (22 RT 4300-4301.) He also
told the jury it was a homicide because women do not like to shoot themselves in the head
— despite the evidence it occurs. (22RT 4303-4305.)
In fact, 99% of intraoral shootings are suicides. (34 RT 6503, 40 RT 7692.) Dr.
Werner Spitz never in his entire career (65,000 autopsies supervised or personally
completed) saw an intraoral homicide with a gun. (34 RT 6501.) Dr. DiMaio testified
that in his entire career, including 35,000 autopsies, he saw only three intraoral
homicides, and never one with a snub-nose revolver. (40 RT 7693, 7694.) Dr.
Lakshmanan, the Coroner, with 17 years of experience, testified he never saw one; he
testified intraoral gun wounds are almost always self-inflicted. (31 RT 6055.)
As to the existence of bruises on Clarkson’s arms, Dr. Pena originally could not
identify the bruises as having anything to do with a struggle. (The house showed no signs
of struggle between appellant and Clarkson.) He testified it was possible the bruises
were caused when Clarkson’s arms hit the chair after the shot or that she had received
them earlier at work. (21 RT 4124-4128.) Before the grand jury, he testified he could not

20
give an opinion as to the cause of the bruises. (21 RT 4118-4119.) He also previously
testified he could not tell whether the bruises occurred at the same time. (24 RT 4691.)
But at appellant’s trial, he told the jury he was sure they were from a struggle and not just
consistent with a struggle (21 RT 4118), explaining, “I have had time to think again over
the number of years that have passed and seen more.” Then he retreated by saying the
bruises could be “consistent with struggle.” (21 RT 4142.) He admitted there were “other
readily available causes for these bruises.” (24 RT 4684-4685.)9 Indeed, he agreed with
studies concluding that the timing of bruises cannot be precise. (21 RT 4140.) Further,
none of the State’s criminalists who closely examined and photographed Clarkson’s body
at the scene noted bruises.
As to the alleged bruise on the tongue, when Dr. Pena looked at the body during
autopsy, he gave no thought to a mark on Clarkson’s tongue more than two inches inside
her mouth. For the following four years, he gave it no significance. But the prosecution
called him and pointed it out. Then it became blunt force trauma — “symmetrical
bruises on the right side of the tongue." (21 RT 4014; 21 RT 4090-4091.) Dr. Pena
previously told the prosecution the bruise was consistent with an explosion in the mouth
from the shot, but he said nothing about this on direct examination to the jury. Instead, it
was blunt force trauma. Only on cross-examination was it revealed the bruise was
consistent with a gun shot going off in the mouth. (21 RT 4095.)10 His boss, Dr.

9
Dr. Spitz and Dr. DiMaio testified it is impossible to time bruises as Dr. Pena did
in order to claim they occurred at the time of the shooting. (Dr. Spitz, 34 RT 6533; Dr.
DiMaio, 40 RT 7736.)
10
Dr. Spitz testified the bruise (or tear) was caused by the bullet and exploding
gases. (34 RT 6535.) The discoloration was not caused by blunt force trauma. (34 RT
6537.) Indeed, a gun with a 1.5 inch barrel could not have caused trauma that far back in
Clarkson’s mouth – over two inches. (34 RT 6537-6538.) Accord Dr. DiMaio. (40 RT
7718.) A prosecution criminalist testified that when the gun was inside Clarkson’s
mouth, it was inside no more than 1.5 inches (21 RT 3920), and probably less because the
“crane” on the underside of the barrel would prevent an entry of 1.5 inches. (21 RT 3968-

21
Lakshmanan, testified that not only was there no evidence of trauma to Clarkson’s mouth
that would suggest the gun was forced in, but that he was unable to find a case in which a
gun was forced into someone’s mouth and discharged. (33 RT 6452; 32 RT 6193.)
Finally, the rejection of a psychological autopsy was significant also in showing
the result-directed nature of Dr. Pena’s testimony. In 2003, the Coroner was told by the
District Attorney not to pursue a psychological autopsy until the prosecution completed
its inquiry. (32 RT 6221-6222.) But four days later, the prosecution informed the Coroner
that it could release the autopsy report with the homicide conclusion. (32 RT 6223-6225.)
A year later, the Coroner was provided an abundance of relevant evidence concerning
Clarkson’s health problems, her depressed mood, alcohol abuse, chronic pain and injury,
career decline and despair over it, and acute financial distress that was not considered
prior to the release of the homicide conclusion in September 2003.11 When confronted
with this material at trial, Dr. Pena said it would not alter his opinion of homicide. (22
RT 4331-4335.)
Dr. Pena’s opinion started with no cause of death, but over the years it morphed to
fit the prosecution theory. This phenomenon is not unique to this case. As the Supreme
Court noted in Melendez-Diaz v. Massachusetts (2009) 129 S. Ct. 2527, 2536: ‘A forensic
analyst responding to a request from a law enforcement official may feel pressure--or
have an incentive--to alter the evidence in a manner favorable to the prosecution. ‘
(Italics added.)
//

3969.) Further, there was no evidence of injury to the outside of her mouth.
11
Respondent’s characterization of the emails, witness testimony of Greg Sims
and Jennifer Hayes (RT 8087) and other evidence as mere “glimpses” of Clarkson’s
temporary condition (RB 71) is meritless. (See AOB pp. 29-35 for a description of this
evidence.)

22
4. The Difference Between The First and Second Trials
As demonstrated in appellant’s opening brief, the one notable difference in the
evidence between the first and second trial was the testimony at the retrial of Lynne
Herold that the blood spatter purportedly found on the back of Lana Clarkson’s wrists
was inconsistent with a self-inflicted wound. This testimony, of course, was wholly
dependent on that of Lintemoot concerning the blood spatter. And in closing the
prosecution characterized the blood spatter testimony as the most important evidence in
the case: “Why is it the defense needs to go through this long process of machinations of
truth on this? Because this is the single piece of evidence they cannot explain away. It is
absolutely inconclusive with Lana Clarkson holding the gun.” (47 RT 9297; italics
added.)
In People v. Brooks (1979) 88 Cal.App.3d 180, 188, after a first trial resulted in a
hung jury, the erroneous admission of threat evidence at retrial required reversal, despite
the identification testimony of one witness to the charged robbery, because the error could
have confused the issues and misled the jury. (See also People v. Ogunmola (1989) 39
Cal.3d 120, 124 [finding result before other jury proved “the effect of the error with
seeming laboratory precision”]; Ouber v. Guarino (1st Cir. 2002) 293 F.3d 19, 33
[finding prejudice because juries had deadlocked in petitioner’s first two trials and the
only “substantial difference” was counsel’s ineffectiveness; relying on these “actual
rather than hypothetical reference points”].)
Here, the key corroboration offered for Lintemoot’s confused and confusing
testimony was the evidence of Judge Fidler’s statements and gestures on the videotape.
The prosecution argued this as the most important evidence in the case, thereby making
the judge its key witness. Absent that evidence, it is highly probable that the result at
appellant’s second trial would have been no worse than it was at the first — a hung jury.
Reversal is required here.

23
II. THE TRIAL COURT COMMITTED REVERSIBLE ERROR UNDER
STATE AND FEDERAL LAW BOTH IN ADMITTING EVIDENCE OF
UNCHARGED BRANDISHING OFFENSES AND IN INSTRUCTING THE
JURY ON HOW THAT EVIDENCE COULD BE CONSIDERED

A. Introduction

In its brief, respondent does not dispute that California maintains its long-standing
statutory ban on character evidence in the form of proof of uncharged offenses (Evid.
Code §1101(a)), and that the “codification of the common law rule . . . is absolute where
it applies.” (People v. Alcala (1984) 36 Cal.3d 604, 631. [Emphasis added]) The rule
against character-conformity evidence is “designed to prevent the jury from assessing a
defendant’s present guilt on the basis of his past propensities.” (Greenboam v. State
(Ind.App. 2006) 766 N.E.2d 1247, 1252 [citation omitted]; cf. People v. Younger (2000)
84 Cal.App.4th 1360, 1382 [“neither prior offenses nor propensity prove guilt of a
charged offense”]; 1 Wigmore, Evidence (3rd ed. 1940) § 192, p. 642 [it “has long been
accepted in our law . . . [t]hat the doing of one act is in itself no evidence that the same or
a like act was again done by the same person”] (internal quotation marks omitted).)
Admittedly, the §1101(a) ban on uncharged offense evidence to prove bad
character does not prohibit the admission of evidence of prior offenses to prove the issues
listed in Evidence Code §1101(b) — identity, motive, intent, etc. — when those issues are
fairly in dispute, but California jurisprudence has struggled mightily to ensure that
subsection (b) is not so broadly interpreted so as to swallow the absolute evidentiary bar
contained in subsection (a). For that reason, our Supreme Court has directed trial courts to
employ “extremely careful analysis” before admitting such evidence due to the great risk
of prejudice such evidence carries (People v. Ewoldt (1994) 7 Cal.4th 380, 404), and to
admit that evidence only “with extreme caution” and only after resolving “all doubts
about its connection to the crime charged . . . in the accused’s favor.” (Alcala, 36 Cal.3d
at 631.)

24
The “extremely careful analysis” described in Ewoldt requires that a trial court
“look behind the label” advanced by the party proffering uncharged-offenses evidence.
(People v. Thompson (1980) 27 Cal.3d 303, 316; see also People v. Guerrero (1976) 16
Cal.3d 719, 724 [“[A]dmission of other crimes evidence cannot be justified merely by
asserting an admissible purpose”].) As the commentator relied upon by respondent (RB at
75) himself states, “[t]o determine whether the asserted theory [of admissibility of
uncharged acts] qualifies, the trial judge must trace the entire chain of inferences
underlying the theory. The theory passes muster if the inferential path between the item
of evidence and a fact of consequence in the case does not require any inferences as to
the defendant’s personal, subjective character.” (Imwinkelried, “An Evidentiary
Paradox: Defending the Character Evidence Prohibition by Upholding a Non-character
Theory of Logical Relevance, the Doctrine of Chances” (Jan. 2006) 40 U.Rich. L.Rev.
419, 429 [emphasis added]; see also People v. Thompson, supra, 27 Cal.3d at p. 317
[“The inference of a criminal disposition may not be used to establish any link in the
chain of logic connecting the uncharged offense with a material fact.”]; United States v.
Sampson (3rd Cir. 1992) 980 F.2d 883, 887 [“If the government offers prior offense
evidence, it must clearly articulate how that evidence fits into a chain of logical
inferences, no link of which can be the inference that because the defendant committed . .
. offenses before, he therefore is more likely to have committed this one”]; Wright &
Graham, supra, § 5239 [“evidence of other crimes can be used to prove the conduct of a
person if the inference to conduct can be made without the need to infer the person’s
character as a step in the reasoning from the other acts to the conduct in issue”].)
Given the nature of the state’s response to appellant Spector’s multiple claims of
error concerning the admission of a plethora of inflammatory uncharged offense evidence
at trial, the importance of this appeal to California evidence law is most evident. As
appellant will demonstrate below, the trial court, in admitting the avalanche of uncharged
offense evidence, much of it concerning alleged incidents occurring decades before the

25
charged offense, was far from “extremely careful” in its analysis. Rather, the court
accepted the prosecution’s intoning of admissible purposes without serious consideration
of whether the proffered theories of admissibility actually rested on inferences about
appellant Spector’s character and personal history. If endorsed on appeal, the trial court’s
various rationales for admitting the §1101(b) evidence would effectively eliminate any
and all hurdles to the admission of character evidence in a criminal trial in California.
That is particularly so given the trial court’s instructional rulings, which resulted in a jury
charge on the consideration of uncharged offense evidence unlike any ever previously
given in a trial in this state.
This Court neither should nor can engage in the judicial repeal of §1101(a) that
respondent urges upon it. Upon a finding of error, the Court must reverse because
respondent virtually concedes that, if Spector is correct regarding the uncharged-offenses
evidence, the error was prejudicial. (See RB at 72 [acknowledging obvious fact that the
uncharged offenses were “crucial” to the jury’s determination of Spector’s guilt].)
B. The Trial Court’s Instruction That The §1101(b) Evidence
Could be Used To Establish “That the Defendant Was the
Person Who Committed The Offense Alleged In This Case”
Requires Reversal

As respondent concedes, at trial, “the main issue was which of two persons,
Clarkson or appellant, was the shooter” (RB, at 87); that is to say, the core issue in this
case was one of identity. The §1101(b) evidence, however, was inadmissible on the
issue of identity of the person who caused the firearm to discharge in Ms. Clarkson’s
mouth because the prosecution could not and did not meet the “distinctive signature” test
required by People v. Ewoldt (1994) 7 Cal.4th 380, 404 (“The greatest degree of
similarity is required for evidence of uncharged misconduct to be relevant to prove
identity ... The pattern and characteristics of the crimes must be so unusual and distinctive
as to be like a signature.”) In none of the prior seven incidents did appellant place a gun
in anyone’s mouth, nor did he ever cause a gun to discharge. After initially indicating that

26
the uncharged evidence might be admissible on the issue of identity, the trial court
correctly reversed itself on that issue (46 RT 9129-9130), and respondent now agrees that
“identity was not an admitted purpose for the prior act evidence in this case.” (RB, at 87
fn. 13; see also RB, at 88: reference to “the trial court ruling excluding identity as a
ground for admission of the prior acts evidence.”)
Because the uncharged offense evidence was not, and could not have been,
admitted to prove identity, just as it was not, and could not have been, admitted to prove
intent or common plan and scheme, the trial court erred if its instructions permitted the
jury to consider the §1101(b) evidence as to these issues. People v. Armstead (2002) 102
Cal.App.4th 784 (reversible error if jury instruction retroactively expands purpose for
which evidence was admitted.) The trial court did just that by instructing the jury that it
could rely on the uncharged offenses to find that “the defendant was the person who
committed the offense alleged in this case.”
As respondent apparently concedes, no California court has ever previously used
the phraseology at issue here in an instruction on uncharged offense evidence. According
to respondent, this instruction did not permit the jury to consider the uncharged offenses
on the issue of the identity of the person who pulled the trigger (or on the issues of intent
or common plan and scheme) because, essentially, the words did not mean what they said.
(RB at 86-89.) Respondent claims that the challenged phrase was part of a complete
sentence authorizing the jury to consider the uncharged offenses for the purpose of
“[e]stablishing that the death of Lana Clarkson was not the result of accident, mistake, or
suicide, but rather that the defendant was the person who committed the offense alleged
in this case;” in context, the final phrase purportedly did no more than “properly explain
the only reasonable inference from finding that Clarkson’s death did not result from her
accident, mistake or suicide. If Clarkson did not die by one of those three means, then
appellant killed her, and this is all the instruction conveyed.” (RB at 87.)
There are two gaping flaws in respondent’s argument. First, the words “the

27
defendant was the person who committed the offense alleged in this case” clearly did add
a fourth (and unbounded ) use as to which the §1101(b) evidence could be put by the jury.
Second, if the challenged phrase indeed did have the meaning that respondent attributes to
it, the instruction plainly was constitutionally flawed under well-established authority of
the United States and California Supreme Courts.
Turning to respondent’s first contention — that the challenged phrase added to
“not the result of accident, mistake, or suicide” did not permit the jury to consider the
§1101(b) evidence for anything other than those three factual issues — one must ask why,
then, did the prosecution include those words in its instructional request and why did the
trial court convey them to the jury over the defense’s vigorous objection? Surely no
reasonable juror would conclude that the court was providing it with a meaningless
portion of an instruction. On the contrary, as respondent points out in another context, a
reasonable juror is presumed to follow the instructions he or she is given. (RB, at 61,
citing People v. Harris (2005) 37 Cal.4th 310, 350.) Defense counsel had been
extremely precise in articulating the problem with the language at issue (48 RT 9617), but
the court gave it anyway because that language “was exactly what [it] had in mind.” (48
RT 9618.) Clearly, the trial court believed that the language at issue carried some import.
What Judge Fidler had in mind, and expressly so, was to permit the jury to consider the
uncharged offenses on the question of the identity of the shooter, but to avoid the close
appellate scrutiny that the term “identity” would draw under Ewoldt. (46 RT 9129-9131.)
Furthermore, when the trial court suggested dropping “identity” from its
instruction due to the legal hurdle Ewoldt posed to the term’s use, the prosecution agreed
on the ground that the phrase used by the trial court conveyed precisely the same
meaning. (See 46 RT 9132 [prosecution accedes to trial court’s suggestion of instructing
jury on identity theory without calling it that because such instruction would, nonetheless,
permit it to argue that “the prior incidents establish to this jury who did this” because
“what[ever] you think about 1101 evidence in any of these categories, however you want

28
to label it, [it] really does go to proving identity anyway”].) Given the prosecution’s
position below, respondent should be estopped from even arguing that this instruction did
not authorize the jury to consider the uncharged offenses under an impermissible identity
theory. (People v. Dees (1990) 221 Cal.App.3d 588, 598 [prosecutor estopped from
asserting a position on appeal it conceded at trial].)
Moreover, respondent’s claim the jury was not permitted by the trial court’s
instructions to consider the other offense evidence on the issue of identity is contradicted
by its assertion elsewhere in its brief that: “The evidence that appellant had committed
seven prior assaults with a gun against five women under circumstances similar to the
charged offense tended to show that Clarkson’s death...was the result of a deliberate, life
threatening act by appellant.” (RB, at 84.)
Respondent next claims, rather remarkably, that the prosecution’s closing
arguments did not urge the jury to use the uncharged offenses as proof of the identity of
the person who shot Clarkson because, instead, “it spoke directly to appellant’s motive for
threatening Clarkson with the gun. . . .” (RB at 88.) That claim is irreconcilable with the
record. (See AOB at 83-85, 108-109, fn. 30, citing, inter alia, 47 RT 9236 [“Lana’s is a
murder that was waiting to happen in Phil Spector’s world of conscious disregard for
human life”]; 48 RT 9547 [“Phillip Spector does what he does time after time, after time,
after time, after time, after time and again. . . . So he pulls a gun, and he threatens Lana
Clarkson with it. . . . And this time, this time that gun goes off.”].)
Respondent also claims that Spector forfeited his claim that the prosecution used
the other offense evidence to argue identity, based on the failure of defense counsel to
timely object and request an admonition. (RB at 87.) But Spector has not raised here an
independent claim of prosecutorial misconduct on the identity issue. His point, rather, is
that this misuse by the prosecution of the uncharged offenses established the prejudice of
the trial court’s instruction that permitted the prosecution to argue, and the jury to find,
that the uncharged offenses proved that it was Spector who had shot and killed Clarkson.

29
(See AOB at 92 [citing the prosecution’s argument to demonstrate the effect of the
erroneous instruction].) In any case, prior to its closing argument, the prosecutor had
already informed the court that it intended to use the improvised instruction to argue
identity. (46 RT 9132.) Any objection to a tactic of the prosecution as to which the court
had already indicated its approval would thus have been futile. (Abbaszadeh, 106
Cal.App.4th at 648; Sandoval, 87 Cal.App.4th at 1433, fn. 1.)
With its alternate defense of the trial court’s novel instruction, respondent digs
itself a huge constitutional hole. According to respondent, the challenged language in the
improvised instruction, properly read, “did not relate to identity, but was connected to the
first clause....” (RB, at 87.) Rather than adding an additional issue on which the other-
offense evidence could be considered — who was the shooter? — the challenged
language, says respondent, merely supplied the necessary consequence of the jury’s
consideration of the issue of the absence of accident, mistake, and suicide. Respondent
contends that the instruction informed the jury that the §1101(b) evidence must be
considered for the purpose of “[e]stablishing that the death of Lana Clarkson was not the
result of accident, mistake, or suicide”... because “if Clarkson did not die by one of these
three means, then appellant killed her.” (RB, at 87.) “[A]ll the trial court’s instruction
conveyed,” respondent asserts, was the fact that “the only reasonable inference from
finding that Clarkson’s death did not result from her accident, mistake or suicide” was
that “appellant killed her.” (Id.) Thus respondent interprets the challenged instruction as
informing jurors that if they found fact A — a lack of accident, mistake, or suicide —
then they were to infer fact B — Spector shot Clarkson — because B was the only
reasonable inference to be drawn form the finding of A.
But instructing jurors, as here, that if they find one intermediate fact — the
absence of accident, mistake, or suicide — they must or should find “that the defendant
was the person who committed the offense alleged in this case” creates a legal
presumption, either conclusory or rebuttable in nature. Incorporating either form of legal

30
presumption in a jury instruction is federal constitutional error. In Sandstrom v. Montana
(1979) 442 U.S. 510, the high court held unconstitutional a presumption in jury
instructions that “the law presumes that a person intends the ordinary consequences of his
voluntary acts” because it shifted the prosecution’s burden on the issues of purpose and
knowledge at the petitioner’s murder trial. In finding unconstitutional the presumption
described in the instructions, Sandstrom cited the unequivocal statement of In re Winship,
397 U.S. 358 (1970), where the Court “explicitly [held] that the Due Process Clause
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.” 442 U.S. at 520,
citing Winship, 397 U.S. at 364 (emphasis added in Sandstrom). Sandstrom acted on the
warning in County Court of Ulster County v. Allen, 442 U.S. 140 (1979) that no
presumption should be permitted to “undermine the factfinder’s responsibility at trial.”
442 U.S. at 156.
The California Supreme Court has been stringent in its policing of rebuttable
presumptions, holding in People v. Roder (1983) 33 Cal.3d 491, that a statutory rebuttable
presumption regarding guilty knowledge of receipt or purchase of stolen property was
unconstitutional in light of Ulster. Paying “careful attention to the words actually spoken
to the jury,” as Ulster requires, the Court first found that the trial court’s instructions
“could be read to suggest that the presumption of guilty knowledge was simply a
permissive inference, which the jurors could, but were not required to, draw.” (Id., at 502-
503.) That did not end the matter, however. The Court continued:
The jury could certainly have understood the [trial court’s
explanation of the presumption] to mean that once the
prosecution proved the basic facts, the burden shifted to the
defense to raise a reasonable doubt as to the ultimate fact;
conversely, if the defense raised no such doubt, the
prosecution’s case on the issue of knowledge was deemed
established as a matter of law on the basis of the
circumstantial evidence which, as a matter of common sense,

31
allowed, but by no means compelled, a finding of the ultimate
fact. If that was the jury’s understanding, the presumption
would not have operated merely as a permissive inference....

Accordingly, we conclude that from the instructions given in


this case the jury could have reasonably interpreted the
presumption . . . as relieving the prosecution of its burden of
proving every element of the offense beyond a reasonable
doubt. As Ulster County and Sandstrom establish, this was
constitutional error.

(33 Cal. 3d at 504.)

If respondent is taken at its word, the instruction the trial court devised to avoid
Ewoldt scrutiny of its admission of §1101(b) evidence directed the jury to find the
defendant guilty of the “charged offense evidence in this case” — murder — upon
finding Clarkson’s death was not the result of accident, mistake, or suicide. Even if the
instruction did not require the jury to draw that inference, as in Roder, “the jury could
have reasonably interpreted the [instruction] . . . as relieving the prosecution of its burden
of proving every element of the offense beyond a reasonable doubt.” (33 Cal. 3d at 504.)
The trial court thereby committed federal constitutional error requiring reversal.
Finally, in response to Spector’s claim of procedural error — that the trial court
only announced its decision to give the instruction that the jury could consider the
uncharged offenses for the purpose of establishing that “the defendant was the person
who committed the offense alleged in this case” after defense counsel had finished his
closing argument, unfairly giving him no opportunity to address it with the jury (AOB , at
94-96) — respondent asserts that counsel had sufficient notice of the trial court’s
intention prior to his closing. (RB, at 88-89.) That notice consisted of the trial court’s
statement, prior to closing arguments, that it would instruct “on the absence of suicide or
mistake . . . ” (RB at 88 [citing 46 RT 9218].) That is the only notice that defense
counsel got.

32
Although the court ambiguously added after the foregoing statement, “and
basically show, under the People’s theory, that it’s Mr. Spector who is responsible for the
act without using the word ‘identity,’ per se, which would still be appropriate” (ibid.),
nowhere in the entire statement is there an express pronouncement that the court was
going to instruct on the latter point. Surely no reasonable defense counsel would have
construed the statement as such given that no court in the history of California had ever
given such an instruction. Spector’s constitutional right to present a full and complete
closing argument cannot not be sacrificed on so flimsy an altar. Reversal is required on
this ground as well.
C. The Uncharged Offenses Were Not Admissible Under an
“Absence of Mistake, Accident, or Suicide” Theory

Spector contends that it was error to admit the uncharged offenses as proof of “the
absence of accident, mistake, or suicide.” (AOB at 96-97.) Nowhere is Ewoldt’s call for
“extremely careful analysis” more germane, because respondent’s defense of the trial
court’s ruling, while asserting an admissible purpose, quickly degenerates into self-
contradiction and illogic.
The proper use of §1101(b) evidence to prove the absence of accident or mistake is
well-established in California jurisprudence. The classic context in which the issue arises
is when a defendant admits that he committed an act alleged to be criminal — a sexual
touching, the discharge of a rifle, the scalding of a child — but claims he did so by
accident or mistake, rather than with the intent the law requires to commit that crime. If
the defendant has committed similar bad acts in the past, evidence of those crimes is
admissible to prove that the defendant’s conduct in the charged incident was indeed
intentional rather than accidental. (See CALCRIM 375 [permitting jury to consider
uncharged offenses on issue of whether “defendant’s alleged actions were the result of
mistake or accident”] (emphasis added).)
Thus, the absence of accident or mistake is the flip side of the presence of intent.

33
Despite the different phraseology — “absence of accident or mistake” versus “intent” —
the case law is clear that the standard for admitting evidence in this context is one and the
same. Indeed, in the primary case relied on by respondent, People v. Whisenhunt (2008)
44 Cal.4th 174 (RB, at 84), the court rejected the defendant’s attempt to treat “intent and
absence of accident as distinct and separate bases for admissibility,” instead finding that
they “merely reflect[] two ways of describing the same relevant issue in that case, namely,
that defendant performed the acts that killed [the victim] intentionally rather than
accidentally.” (Id. at pp. 203-204 [emphasis added].) (See also Wright & Graham,
supra, § 5247 [“‘[A]bsence of mistake or accident,’ is simply a special form of the
exception that permits the use of other crimes to prove intent.”] (emphasis added); ibid.
[“The justification for admitting evidence of mistake or accident is the same as for the
other exceptions involving proof of the defendant's state of mind. When [properly]
offered for this purpose, no inference to any conduct of the defendant is required and, in
addition, in many cases the evidence does not require any inference as to the character of
the accused.”] (emphasis added; footnotes omitted).)12
In Whisenhunt, the defendant raised the claim that he had caused the victim’s
injuries in his opening statement, which “expressly placed the question of accident in
issue for the prosecution’s case-in-chief . . . .” (44 Cal.4th at 204.) Here, Spector never
contended that if he put a gun in Lana Clarkson’s mouth and discharged it, that act was
not purposeful, but rather the result of an accident or mistake. His consistent defense was
that Clarkson, not he, put the gun in her mouth. Spector’s case is indistinguishable from
People v. Balcom (1994) 7 Cal.4th 414 (where intent to rape was never in issue, as
discussed in AOB, at 96-97), in that, if the jury believed that Spector put the gun in
Clarkson’s mouth and pulled the trigger, the prosecution needed no other evidence

12
Without appreciating its significance in the instant context, respondent later in its
brief acknowledges that absence of accident and intent are two ways of describing the
same issue. (RB at 86.)

34
regarding his intent. When respondent attempts to distinguish Balcom (RB at 85, fn. 11),
it makes no effort to explain how intent was any more at issue in Spector’s case than in
Balcom’s, and for an obvious reason — it cannot.
Furthermore, in this case uncharged offense evidence would have been relevant
only if that evidence concerned incidents in which Spector had intentionally fired a gun or
placed one in someone’s mouth, thereby tending to disprove a claim of accidentally
killing Clarkson (which, of course, Spector never made). None of the seven prior
incidents admitted into evidence against Spector involved any such conduct. And the trial
court made no finding that the other offense evidence passed the test for admission on the
issue of intent, nor did it admit the evidence to prove intent.
After citing and discussing Whisenhunt, respondent effectively admits that the
admission of the §1101(b) evidence cannot possibly be justified by that precedent, for it
asserts that the probative value of the evidence was not in the first instance to prove
Spector’s intent or a lack of accident or mistake on his part, but rather to prove his
identity as the shooter, which in turn would prove that Lana Clarkson did not kill herself
by accident, mistake, or suicide. Admitting that at trial “the main issue was which of two
persons, Clarkson or appellant, was the shooter” (RB, at 87), respondent asserts that the
“evidence that appellant had committed seven prior assaults with a gun against five
women under circumstances similar to the charged offense tended to show that
Clarkson’s death was not in fact a result of her accident or mistake but rather was the
result of a deliberate, life-threatening act by appellant.” (RB, at 84.)13

13
In response to Argument II.B., above, respondent argued that the instruction “the
death of Lana Clarkson was not the result of accident, mistake, or suicide, but rather that
the defendant was the person who committed the offense alleged in this case” (48 RT
9674) meant simply that if the jury found no accident, mistake, or suicide, it could
conclude that Spector was the shooter. In the context of the present argument, however,
respondent effectively admits the position that the §1101(b) can prove the absence of
accident, mistake, or suicide only by proving that Spector was the shooter. In traveling

35
It is, of course, obvious that none of the uncharged offense evidence, dealing with
incidents involving Spector and other women years before he met Lana Clarkson, could
shed any light on whether Clarkson was likely to kill herself intentionally or by mistake.
Respondent is correct that §1101(b) evidence was relevant only to the extent that it could
establish Spector’s identity as the shooter. But in order to gain admission of the §1101(b)
evidence on the identity of the shooter, the prosecution would have had to meet the
Ewoldt standard for the admission of other offense evidence on that issue, or at least what
respondent concedes is “the stricter ‘common plan or scheme’ standard for admissibility,”
rather than the “most lenient ‘intent’ standard.” (RB, at 85.) The prosecutor indisputably
plainly failed to meet either.
This case is thus on all fours with People v. Deeney (1983) 145 Cal.App.3d 647,
655, which respondent completely misconstrues. (RB, at 84.) The court there reversed a
manslaughter conviction based in part on the admission of extrinsic acts evidence, which
had been admitted on, among other theories, absence of mistake. One night, the
defendant and his wife were heard to have had a loud argument; the wife died of a brain
hemorrhage the following day. (Id. at 651.) The defense was that she had fallen because
she was drunk, that is, that her death was an accident. (Ibid.) The court found that the
admission of two instances of the defendant’s past abuse of his wife was prejudicial error
because the issue posed by the evidence was not whether the defendant’s conduct in
killing his wife was accidental, but whether the victim, an alcoholic, accidentally fell and
caused her fatal injuries. (Id., at 655.)
Contrary to respondent’s mischaracterization of that holding, the Deeney court did
not find the evidence of past abuse “relevant to show absence of accident” (RB at 84) and
did not find error merely because the trial court had failed to “give an appropriate limiting

full circle, respondent’s arguments trip over themselves.

36
instruction.” (Ibid.) (See Deeney, supra, 145 Cal.App.3d 647 at p. 651 [“the evidence of
Deeney’s prior conduct [was] erroneously admitted”]; id. at p. 654 [“The People
incorrectly contend this evidence was relevant to facts such as . . . absence of mistake or
accident”].) See also United States v. Manafzadeh (2d Cir. 1979) 592 F.2d 81, 88
[holding inadmissible evidence of other crimes to prove absence of mistake or accident
where defendant did not claim he committed charged acts as result of mistake or accident,
but instead denied doing charged acts altogether].) As in Deeney, reversal is required in
this case.
D. The Uncharged Offense Evidence Was Inadmissible on a Motive
Theory

That acceptance of respondent’s position on the admissibility of the §1101(b)


evidence would mean the end of the ban on character evidence is never more clear than in
its argument concerning motive. That is true for at least three reasons.
First, like the trial court, respondent on appeal equates a character trait, as proven
by specific instances of conduct, with an emotion or feeling that leads one to commit a
crime, which in turn equates with a motive to commit the crime. Under respondent’s
analysis, any and all “bad character” evidence that is barred from admission by the
§1101(a) ban on character evidence would constitute an emotion that leads one to commit
crimes, and thus would be admissible under §1101(b)’s “motive” category.
Assume a victim is shot to death in a drive-by shooting in 2010. The defendant and
the victim were known to have exchanged hostile words in the past, and he is charged
with the offense, with identity being the sole issue at trial. The prosecution moves for the
admission of evidence of a series of bar fights involving the defendant and third parties
ten years earlier in which an initial verbal altercation escalated into defendant’s infliction
of serious injury on his adversaries. The proffered §1101(b) evidence could not possibly
pass muster under the Ewoldt test for the admission of other offense evidence on the issue
of identity, but is offered on the theory that the defendant’s anger is an emotion that may

37
impel or incite him to act in accordance with his state of emotion; that such emotion
constituted a motive to commit the charged murder; and the motive evidence is relevant
to identity. If that argument were sustained, the ban on character evidence under §1101(a)
would be a dead letter, and Ewoldt with it. It simply must be the law that when other
offense evidence is offered as “an intermediate fact which may be probative of such
ultimate issues as...identity...” (RB, at 74), the standard for admission governing the
ultimate issue must apply to the intermediate fact as well.
Second, when the admission of other offense evidence turns on a foundational
showing of a similarity between the charged and uncharged offenses, the facts of the
former must be established independent of the facts of the latter. Here, respondent argues
that the offense charged against Spector must have involved conduct of explosive anger,
of which there is no evidence, because the uncharged offenses involved such conduct;
once the charged offense is assumed to be similar to the uncharged offenses, that
similarity provides the foundational basis for admitting the latter. Bootstrapping of this
sort cannot justify admission of what is indisputably a highly prejudicial form of
evidence.
Finally, respondent’s argument for the admission of the other offense evidence to
prove the intermediate fact of motive is rationalized on the assertion that motive can in
turn prove the ultimate fact of intent. (See RB, at 76: “Motive was a material fact in
dispute in this case because it was highly relevant to the central issue at trial of who had
the intent to discharge appellant’s firearm in Clarkson’s mouth: appellant or Clarkson.”)
But, as demonstrated above in Section II.C., intent was not in issue in this case and cannot
serve as a valid basis of admissibility.
//
//

38
1. The Prosecution’s Motive Theory in This Case
Necessitated an Impermissible Inference Regarding
Spector’s Character

The admitted uncharged offenses evidence was relevant only to the extent that it
supported an inference that Spector acted in conformity with a propensity to become
angry at women and assault them with firearms, which the uncharged acts purportedly
established. That is the very inference §1101(a) forbids.
The core disputed factual issue in this case was whether Spector put a gun in
Clarkson’s mouth and pulled the trigger. The state’s theory was that the uncharged acts
lead to the intermediate inference that Spector had a tendency to become angry with
women, causing him to assault them with firearms, which led to the ultimate inferences
that he experienced the same emotion, which impelled him to commit the same act, on the
charged occasion. The only way that the uncharged acts made it more likely that he
assaulted Lana Clarkson was by a “history” showing Spector to be the kind of person who
would do so. In other words, the state’s theory of admissibility requires precisely the
inference from propensity to guilt that §1101(a) prohibits.
In People v. Love (1980) 111 Cal.App.3d Supp. 1, for example, the court reversed
convictions for two solicitations of an act of prostitution based on the erroneous
admission of an uncharged prior act of the defendant’s having done so, rejecting the
state’s putative motive theory:
The fact that on the earlier date, defendant solicited Police
Officer Day for an act of sex in exchange for money (the
uncharged crime) does not tend to prove motive to commit the
two current charged crimes other than to establish that
defendant was a prostitute by profession. This is strictly
character trait evidence and its use as such is prohibited by the
general rule of Evidence Code section 1101, subdivision (a)
because it is offered to prove defendant’s conduct on a
specified occasion (I. e., the two current charges).

(Id. at p. 9.)

39
Thus, despite the fact that the defendant Love likely had the same motive for her
solicitations in both the uncharged act and the charged crimes, the court, nonetheless,
found the admission of the former reversible error because, in order to establish that
motive, the state necessarily had to rely on the forbidden character inference.
The same is true of State v. Lassiter (S.D. 2005) 692 N.W.2d 171. There, the
defendant was convicted of aggravated assault on the current boyfriend of defendant’s
former girlfriend. The prosecution introduced evidence of defendant’s assault on another
former girlfriend, in part based on a motive theory. The state argued that “the same
circumstances motivated both crimes,” specifically, that his “being ‘jilted’ was
defendant’s motive behind” both attacks because both jiltings caused him to get angry.
(Id. at pp. 177-178.) The court had no problem with the admission of the evidence of
defendant’s anger at the second girlfriend for jilting him as motive evidence tending to
explain his assault on that woman’s current boyfriend, but reversed his conviction based
on admission of the assault of his first girlfriend. Finding that it “only tended to prove
that because defendant had done it before, he must have done it again,” the court wrote:
This is the kind of propensity evidence SDCL 19-12-5 (Rule
404(b)) was designed to preclude: evidence of other crimes
cannot be used to prove conduct through an inference about
the defendant’s character, i.e., a general propensity to commit
assaults when rejected by girlfriends. Indeed, this is what
legal commentators warn against: “But where the motive
evidence is offered to prove that the act was committed or that
the defendant was the perpetrator, the only justification for
admitting the evidence under Rule 404(b) is that it is not
evidence of character; in this situation courts must be on
guard to prevent the motive label from being used to smuggle
forbidden evidence of propensity to the jury.” 22 Charles
Alan Wright & Kenneth W. Graham, Jr., Federal Practice And
Procedure § 5240, at 480 (1978) (emphasis added).

(Id. at p. 179.)

40
Respondent has no answer to this fatal problem other than to say it is no problem
at all. Respondent is wrong.
2. The Admission of the Uncharged Offenses Was
Clear Error Because of the Absence of a
Supportable Theory of Identity or Common Plan or
Design

Among the cases that respondent relies upon in its answering brief is a decision of
Division Seven of this Court, People v. Walker (2006) 139 Cal.App.4th 782, 802-805,
which respondent described with the parenthetical, “in a defendant’s trial for murdering a
prostitute, the trial court properly admitted evidence of three prior sexual assaults in order
to show the defendant’s ‘common motive of animus against prostitutes resulting in
violent battering interrupting completion of the sex act.’” (RB at 76.)14 A careful reading
of Walker, however, demonstrates a fundamental flaw in the trial court’s adoption of the
state’s motive theory here.
Walker affirmed and applied the principle enunciated by Division Four of this
Court in People v. Scheer (1998) 68 Cal.App.4th 1009, and relied upon by Spector herein
(see AOB, at 100-101), that, although similarity of offenses is not essential to establish a
motive theory of the relevance of the uncharged acts, “a nexus or direct link must still
exist between the prior crime and the charged offense.” (Walker, supra, 139 Cal.App.4th
at p. 804 [citing Scheer].) The Walker court then went on to say that, where “the
commission of the prior offense is itself not the incentive for commission of the charged
crime,” it may still be admissible where it evinces the same motive (which is respondent’s
proffered theory herein), but only where such motive “may be a contributing factor in
finding a common plan or design.” (Ibid. [emphasis added; citing Scheer].)

14
Respondent did not get it precisely right: the Walker court sustained the
admission of two of the prior offenses but held admission of the third improper. (See 139
Cal.App.4th at p. 805 [“[T]here was no nexus or relationship between the two
occurrences to support its admission to demonstrate motive”].)

41
Thus, respondent cites “two types of motive evidence in the area of uncharged
misconduct” — where the uncharged acts cause the charged crime, and where the
uncharged acts arise from the same cause as the charged crime. (RB, at 75.) If that
second type is to be admitted, however, it can only be with recognition of a critical
distinction between the two types of motive evidence in terms of admissibility, as
Division Four recognized in Scheer and Division Seven recognized in Walker. When
Walker upheld the admission of uncharged acts of the second type, that is, those evincing
the same cause as the charged crime, it did so only on the basis of their being contributing
factors under a “common plan or design” theory, finding “sufficiently distinctive”
common features to support an inference that the defendant committed both the
uncharged and charged acts. (139 Cal.App.4th at pp. 804-805.) In other words, when
other offense evidence is being proffered as an intermediate fact to prove an ultimate fact
with a strict standard for admissibility, such as identity or common plan or scheme, the
“motive” evidence must meet that high standard.
That was the holding of this Division in Hassoldt v. Patrick Media Group, Inc.
(2000) 84 Cal. App.4th 153, where the Court held that other offense evidence is
admissible as proof of motive only if the identity of the actor is not in dispute and that, if
that identity is in dispute, the other-offense evidence is admissible only if it meets the
most stringent test for admissibility under an identity theory (a test which the trial court
found that the prosecution could not meet as to Spector). Respondent first attempts to
evade application of this principle by asserting that the instant case “was not one where
the identity of the murderer was unknown; if there was a murderer, it was appellant.”
(RB, at 80.) That attempt is utterly specious. The identity of the person who pulled the
trigger was the material factual dispute in this case, as respondent acknowledges in its
brief. (RB, at 87; see also RB, at 97: “Either appellant shoved the gun in Clarkson’s
mouth, or she did.”) The dispositive admissibility point is “that the identity of the actor is
in dispute” (Hassoldt, supra, 84 Cal.App.4th at p. 166 [emphasis added].)

42
Respondent next seeks to evade the Hassoldt analysis by citing People v. Soper
(2009) 45 Cal.4th 759 (RB at 80), but even it does not claim that Soper overruled
Hassoldt. Nor did it do so. In Soper, the issue was whether the trial court had abused its
discretion in refusing to sever two charged murders. In the course of its discussion, the
court highlighted the “significantly different” analysis applied to that issue and to the
issue of the admissibility of uncharged offenses. In the latter context, the state has the
burden of establishing that the “evidence has substantial probative value that clearly
outweighs its inherent prejudicial effect.” (Id. at p. 773.) In the joinder context, by
contrast, the burden is reversed. (Ibid.) Moreover, the burden is heavier on a defendant
seeking to prove an abuse of discretion in the joinder context than in the context of
challenging an evidentiary ruling to admit uncharged offenses. In the former, the
defendant must make a stronger showing of prejudice, namely, that the decision to join
the charges was “outside the bounds of reason.” (Id. at p. 774.) The balancing process
under Evidence Code section 352 does not even occur on a motion to sever charges.15
None of the uncharged offenses could serve as a contributing factor to finding
identity or a common plan or design because none manifested “similarity in results” or
“such a concurrence of common features that the various acts are naturally to be
explained as caused by a general plan of which they are individual manifestations.”
(Ewoldt, supra, 7 Cal.4th at p. 402.) And, of course, the trial court rejected a theory of
admissibility based on common plan or design. (5/23/05 RT at 2, 49-51; 9/15/08 RT at
32), just as it ultimately concluded that the §1101(b) evidence could not pass the Ewoldt
test on the identity issue. Indeed, respondent concedes that the §1101(a) evidence was
not admitted to prove either identity or common plan. (RB, at 88: court excluded identity

15
It was only in the course of this discussion of the propriety of a trial court’s
joinder decision — where the burden was on the defendant to establish the propriety of
severance and, on appeal, to establish the irrationality of joinder — that Soper questioned
the application of Hassoldt.

43
as ground for admission of the prior acts evidence; RB, at 85: prior act evidence not
introduced to show appellant’s common plan or scheme.)
To sum up, Spector contended in his opening brief that the trial court’s
interpretation of the motive theory of admissibility presented by the prosecution herein,
which essentially equated motive with a character flaw, obliterated California law’s
“limitations on identity and common plan or scheme evidence” because such an
expansive motive theory could be made to encompass virtually all extrinsic acts. (AOB at
100.) In response, respondent cites a case decided by this Court, Walker, which did the
opposite by harmonizing admissibility under a motive theory of relevance with those
limitations, precisely what respondent refuses, and more to the point, what the trial court
refused, to do. Walker supports Spector’s claim, not respondent’s answer.
Applying the analysis of Scheer and Walker, this Court should conclude that none
of the uncharged acts offenses was properly admitted under the prosecution’s motive
theory. Respondent asserts that the other acts “supplied the reason why appellant would
have killed Clarkson” (RB at 76 [emphasis in original]), but it at no point states what that
reason is. None of those acts provided a reason or incentive for Spector to kill Clarkson,
that is, none tended to establish a motive within any commonly understood definition of
that term. Indeed, the trial court itself expressly acknowledged this obvious fact. (4/10/07
RT at 14.)
3. The Record Evidence Does Not Establish the
Similarity Between Charged And Uncharged
Offenses

As noted above, there is yet another fatal flaw in respondent’s effort to justify the
motive theory. Respondent claims to find “defining similarities” in overlapping “factors”
between the uncharged acts and the charged crime (RB, at 76-77), which purportedly
justify the admission of the uncharged acts under a motive theory. With respect to the
charged crime, however, there was no evidence “that these factors occurred.” (RB at 77.)

44
Respondent asserts that the uncharged acts all exhibit Spector’s getting angry at, and
losing control with, a woman in whom he was sexually or romantically interested when
she attempted to leave his presence, at which point he blocked her egress and threatened
her with a gun. The proof at trial, however, contained no indication that Spector had
become angry at Clarkson or lost control with her or, indeed, threatened her with a gun. In
other words, respondent finds common features only through flawed, circular reasoning.
The California Supreme Court has condemned this sort of “vicious circle” in regard to the
admission of prior “bad act” evidence. (People v. Albertson (1944) 23 Cal.2d 550, 580-
581.)16
As Spector has already pointed out (AOB at 90-91), respondent’s argument, which
carried the day below, is that, because he had brandished a firearm at women before, he
must have done the same with Clarkson, and, because he acted in that manner with
Clarkson, the charged offense resembled the uncharged offenses such that the latter are
admissible to prove the former. Respondent cites no case that has upheld the admission
of uncharged offenses based on such bootstrapping. In all of the cited cases, there was
independent proof of the circumstances of the charged offense that established its
commonality with the uncharged offenses. (People v. Gallego (1990) 52 Cal.3d 115,
171-172; People v. Davis (2009) 46 Cal.4th 539; RB at 75-76.) Indeed, it was precisely

16
Circumstantial proof of a crime charged cannot be
intermingled with circumstantial proof of suspicious prior
occurrences in such manner that it reacts as a psychological
factor with the result that the proof of the crime charged is
used to bolster up the theory or foster suspicion in the mind
that the defendant must have committed the prior act, and the
conclusion that he must have committed the prior act is then
used in turn to strengthen the theory and induce the
conclusion that he must also have committed the crime
charged. This is but a vicious circle.

Id., at 580-581.

45
because the trial court found such proof lacking that it refused to admit the uncharged
offenses against Spector under the strict standards applicable to other offense evidence
proffered on an identity or common plan theory.
In sum, because the uncharged offenses did not provide an incentive for Spector to
kill Clarkson, because the purported presence of the same emotion in the charged and
uncharged offenses was not a contributing factor in finding a common plan or design,
because the “defining similarities” claimed by respondent (e.g., Spector’s anger, his loss
of control, his blocking Clarkson’s exit) were not established by independent evidence,
and because the identity of the shooter was very much in dispute, the trial court erred in
admitting the uncharged offense evidence on a motive theory. Three decisions of this
Court – Hassoldt, Scheer, and Walker – compel the finding of error.
E. The Trial Court Did Not Properly Instruct on the
Definition of Motive

Striking out on its own, and over defense objection, the trial court crafted an
instruction on the jury’s consideration of the uncharged offenses under a motive theory,
defining “motive” as “an emotion that may impel or incite a person to act in accordance
with his state of emotion.” That expansive definition, not employed in CALJIC or
CALCRIM instructions, eliminates the fine but crucial distinction between motive and
character in the other-offense context.
One treatise well describes rulings employing the rationale embodied in the trial
court’s unauthorized instruction:
Some cases attempt to avoid the policy of the rule [against
character-conformity evidence] by engaging in word-play on
the meaning of “character”; e.g., by claiming that the fact that
a husband is jealous is not a character trait but simply a
“particular emotional state.” One could often say the same
thing about greed, hatred, or lasciviousness and virtually do
away with the rule. Such reckless generalizations may be
tolerable in everyday affairs but courts are understandably
reluctant to encourage their use in the jury room.

46
(22 Wright & Graham, Federal Practice & Procedure: Evidence (1st ed. 1978 & 2010
supp.) (hereafter Wright & Graham) § 5239 [footnote omitted].)
Respondent begins its reply by citing Justice Jefferson, who, in People v. Gibson
(1976) 56 Cal.App.3d 119, 129, described motive in terms similar to those employed by
the trial court here. (RB, at 81.) Justice Jefferson did so, however, not as a suggestion
that the definition should be included in a jury instruction, but as part of a discussion of
why evidence should be admitted under a motive theory of relevance only with the
greatest of care:
In terms of prejudicial consequence, there is very little
difference, however, between other-crimes evidence that is
introduced to establish a defendant’s motive and thence to the
inference that the charged offense was committed by
defendant in accordance with such motive, and other-crimes
evidence as character trait evidence that leads to the same
inference – that a defendant acted in accordance with such
character trait and committed the charged offense.

Thus, Justice Jefferson’s point was that, precisely because motive can be
understood in the manner explicitly incorporated in the trial court’s instruction here, other
offense evidence should be admitted on the issue of motive only with extreme care.
Indeed, Gibson reversed the defendant’s murder conviction in part because of the lower
court’s abuse of discretion in admitting the other crimes evidence to prove motive while
failing to exercise the requisite degree of care.
It is the essence of sophistry and lack of realism to think that
an instruction or admonition to a jury to limit its consideration
of highly prejudicial evidence to its limited relevant purpose
can have any realistic effect. It is time that we face the
realism of jury trials and recognize that jurors are mere
mortals. Of what value are the declarations of legal principles
with respect to the admissibility of other-crimes evidence . . .
if we permit the violation of such principles in their practical
application? We live in a dream world if we believe that
jurors are capable of hearing such prejudicial evidence but not

47
applying it in an improper manner.

(Id. at pp. 128-130; see also United States v. Cunningham (7th Cir. 1996) 103 F.3d 553,
556-557 [“The greater the overlap between propensity and motive, the more careful the
district judge must be about admitting under the rubric of motive evidence that the jury is
likely to use instead as a basis for inferring the defendant’s propensity, his habitual
criminality, even if instructed not to.”].)
Where, as here, a jury is expressly authorized to consider uncharged offenses for
the purpose of determining whether the defendant had an inciting emotion that caused
him to act in accordance therewith and commit the charged offense, and the jury is
exposed to uncharged offenses that purportedly manifested that emotion over the course
of nearly 30 years, that emotion is no different than a character trait. Indeed, respondent
makes Spector’s case for him. (See RB at 90 [“The fact that the similar assaults had
recurred over a lengthy period added to their probative value.”].)
This Court would open a Pandora’s box were to it to approve Judge Fidler’s
instructional formulation, which has never been included in a California form instruction.
As the Alaska Supreme Court has said in an analogous context, “We decline to broaden
the intent exception to the established rule prohibiting evidence of prior misconduct to the
extent that it would destroy the rule.” (Harvey v. State (1979) 604 P.2d 586, 589.)
Likewise, this Court should not broaden the motive exception to destroy the rule of
Evidence Code §1101(a) by accepting the trial court’s departure from the CALCRIM
definition of motive.
F. The Trial Court Did Not Properly Exercise Its Discretion Under
Evidence Code Section 352

In addition to contending that all of the uncharged-offenses evidence was


inadmissible on any non-character-conformity basis, Spector also claims that, even if that
were not true, the trial court abused its discretion and violated his due process right to a
fair trial by refusing to exclude that evidence as unduly prejudicial. (AOB at 106-107.)

48
Respondent answers that the evidence had a strong probative value and, because the
uncharged offenses were less inflammatory than the charged offenses (that is, no one had
been shot in the course of the other offenses, let alone killed), the prejudice of their
admission was “diminished.” (RB at 90.)
As an initial matter, although left unmentioned by respondent, “[w]hen the
evidence is of an uncharged offense, [it is appropriate] to place on the People the burden
of establishing that the evidence has substantial probative value that clearly outweighs its
inherent prejudicial effect.” (People v. Soper, supra, 45 Cal.4th at p. 773 [emphases in
original; citation omitted].) Spector has already discussed at length, both in his opening
brief and above, why the probative value carried by the uncharged offense evidence was
solely a function of the extent to which it violated the rule against character conformity
evidence, that is, why the other offenses held no probative value other than through the
impermissible inference that, because the defendant had a particular character trait, he
was more likely to have killed Clarkson. Again, the asserted enhanced probative value of
the uncharged offenses because they “had recurred over a lengthy period” (RB at 90)
appears only because such recurrence better establishes Spector’s propensity to behave in
certain ways on account of his character.
A second factor that should have been, but was not, factored into the probative
value calculus was the temporal remoteness of the uncharged offenses. These purported
offenses occurred in 1975 (Robitaille), 1982 (Ogden), 1986 (Robitaille), 1989 (Ogden),
1993 (Melvin), 1993 (Grosvenor), and 1995 (Jennings). Clarkson died in 2003. In theory
at least, a defendant “must be tried for what he did, not for who he is.” (United States v.
Foskey (D.C. Cir. 1980) 636 F.2d 517, 523 [citation and internal quotation marks
omitted]; cf. Harrison’s Trial (Old Bailey 1692) 12 How. St. Tr. 834, 864 [excluding
propensity evidence in murder trial and remarking, “Hold, what are you doing now? Are
you going to arraign his whole life? Away, away, that ought not to be; that is nothing to
the matter”].) The vast majority of cases that have upheld the admission of such old

49
offenses as not unreasonably remote have done so on the ground that the defendant had
been incarcerated for a significant portion of the intervening years. (See, e.g., People v.
Davis, supra, 46 Cal.4th at p. 602 [“[A]lthough the prior acts occurred 17 years before the
crimes against Polly, they were not so remote as to warrant their exclusion, as defendant
had only remained free from incarceration for a total of three years during the intervening
period”],17 citing People v. Peete (1946) 28 Cal.2d 306, 308-309, 318-319 [24-year lapse
since prior conviction was “not significant” when defendant had been incarcerated for 18
of those years]; People v. Wesson (2006) 138 Cal.App.4th 959, 970 [14-year-old offenses
not too remote since defendant served an 11-year sentence for them].) Although it may
well be true that each case must be determined on its own facts and no prior offense is so
ancient as to be inadmissible as a matter of law, regardless, one “that is twenty years old .
. . certainly meets any reasonable threshold test of remoteness” (People v. Burns (1987)
189 Cal.App.3d 734, 738.) A fortiori, 28-year-old (Robitaille) and 21-year-old (Ogden)
offenses indisputably meet that threshold for exclusion. The other offenses meet it as
well given the absence of any incarceration time in the time period between their
purported occurrences and the charged offense.
With respect to the absence of substantial, legitimate probative value, a third factor
exists. As the trial court had ruled, the uncharged offenses were inadmissible under a
theory of common plan or design because none involved preplanned acts. (9/15/08 RT at
32.) The words of one court discussing the admission of other crimes to prove intent are
equally apposite in the instant context; they highlight the absence here of probative value,
let alone substantial probative value, independent of the impermissible reliance on
character:
[T]he evidence of prior crimes involving intent of the moment

17
Respondent cites Davis with the parenthetical, “prior acts committed 17 years
before charged crimes” (RB at 90), without noting the dispositive fact that the defendant
had been incarcerated for 14 of them.

50
are hardly ever probative of later acts involving similarly
split-second intent. Indeed, such prior crimes have less to do
with the type of specific intent that may arise later . . . than
they do with the defendant’s overall disposition or character;
and if there is one clear category that is not an exception to
the general rule against allowing evidence of prior acts, it is
that which includes “character, disposition, and reputation.”

(United States v. San Martin (5th Cir. 1974) 505 F.2d 918, 923 [citations omitted].)
Precisely the same is true with respect to motive when it is defined, as was done here, as
an emotion that propels action.
On the prejudice side, the notion advanced by respondent — that numerous
instances of Spector’s purportedly acting inexcusably and criminally in terrifying women
with a firearm is not unduly prejudicial because he did not kill those women — defies
common sense. If the rule were that the uncharged offenses have to be as inflammatory
as the charged crime to be sufficiently prejudicial to support reversal, there would never
be such error in a murder case if the other offenses did not involve a killing. That has
never been the rule, nor should it be. Moreover, that Spector had actually committed one
or more of the uncharged offenses was clear; whether he had shot and killed Clarkson
was anything but. Thus, though the charge of murder is more inflammatory than that of
brandishing a firearm, given the dearth of evidence that Spector had actually committed a
murder, the imbalance in the gravity of the comparative putative charges hardly
diminishes the prejudice he suffered.
The test for prejudice under section 352 is whether the evidence at issue induces
the jury to decide the case on an improper basis, commonly an emotional one, rather than
on the evidence presented. (See, e.g., Vorse v. Sarasy (1997) 53 Cal.App.4th 998, 1009
[“[E]vidence should be excluded as unduly prejudicial when it is of such nature as to
inflame the emotions of the jury, motivating them to use the information, not to logically
evaluate the point upon which it is relevant, but to reward or punish one side because of

51
the jurors’ emotional reaction”]; People v. Zapien (1993) 4 Cal.4th 929, 958 [“prejudice”
is used in section 352 “in its etymological sense of ‘prejudging’ a person or cause on the
basis of extraneous factors”].) At least two factors commonly relied upon by courts to
find the requisite undue prejudice in the admission of uncharged offenses are present
here.
First, no punishment was ever imposed for the other offenses. (See, e.g., Ewoldt,
supra, 7 Cal.4th at p. 405 [observing that, if prior offenses did not result in conviction,
danger is increased that jury may wish to punish defendant for them]; Balcom, supra, 7
Cal.4th at p. 427 [similar].) Given the extremely unsympathetic manner in which
Spector’s character was portrayed in the seven discrete uncharged offenses, none of
which had carried any penal consequences for him, it is more than likely that at least one
juror was influenced to punish him now, if not for any one of them, then for their
cumulation. Indeed, the prosecution effectively urged as much. (See 47 RT 9233-9334
[“In Phil Spector’s world, you can commit such violence, such conscious disregard for
human life not once but seven times”].)
Second, the prosecution exacerbated the prejudice when it repeatedly used the
uncharged offenses to urge the jury to do precisely what the erroneous instruction
authorized, namely, find Spector guilty of murder because of the propensity he had
exhibited in the uncharged offenses and the likelihood that he had behaved in conformity
therewith in killing Clarkson. (See AOB at 83-85, 108-109, fn. 30.)
In light of all the above, it should be clear to this Court that the state never met its
burden of demonstrating both that the uncharged offense evidence had substantial (and
legitimate) probative value and that, if it did, said value was not substantially outweighed
by its inherent prejudicial effect.
//
//

52
G. The Trial Court Improperly Allowed the Prosecution to Argue That
Appellant’s Conduct Demonstrated a Pattern

When the trial court reversed itself and permitted the prosecution to argue that
Spector’s “pattern” of violent behavior helped prove that he killed Clarkson, it effectively
permitted an impermissible propensity argument, an error under state evidentiary law and
federal constitutional law. (AOB, at 107-109.) Respondent answers that the
prosecution’s argument, though it heavily employed references to Spector’s “pattern” of
behavior, was proper because “the pattern demonstrated all the permissible grounds for
admitting the other crimes evidence” and the argument did not expressly “urge the jury to
find appellant guilty based upon an inference of bad character.” (RB, at 91.) Respondent
also notes that courts often use the word “pattern” in their discussions regarding properly
admitted other offense evidence and that the prosecution’s arguments to the jury herein
were consistent with that precedent. (Id., at 92.) Furthermore, there could be no
prejudice, according to respondent, because of the trial court’s instruction directing the
jury not to use the uncharged offense evidence for any impermissible purpose. (Id., at
93.)
As the trial court at least at one point recognized, however, the prosecution’s
repeated use of the term “pattern” was akin to using the uncharged offense evidence as
propensity evidence, and, in the trial court’s words, “propensity is what you can’t use
1101(b) for” (7 RT 1183.) The trial court was hardly alone in that view. (See, e.g.,
Gilcrease v. State (Ark. 2009) 318 S.W.3d 70, 81-82 [upholding admission of other-
crimes evidence because not “offered to show a pattern of behavior”].)
The term “pattern” is most often employed in the uncharged offense cases under
section 1001 in connection with discussion of an identity theory. (See, e.g., Ewoldt,
supra, 7 Cal.4th at p. 403 [“For identity to be established, the uncharged misconduct and
the charged offense must share common features that are sufficiently distinctive so as to
support the inference that the same person committed both acts. The pattern and

53
characteristics of the crimes must be so unusual and distinctive as to be like a signature.”]
(emphasis added; citations and internal quotation marks omitted).) Respondent claims
that “the prosecution’s closing argument did not run afoul of the trial court’s ruling
excluding identity as a ground for admission of the prior acts evidence.” (RB, at 88.) But
the prosecution said it was going to use the uncharged offenses to argue identity (46 RT
9132), and then proceeded to do exactly that (see AOB, at 83-85 [summarizing
prosecution’s use of offenses in closing arguments]; id., at 108-109, fn. 30 [listing
excerpts.]) Its reliance on Spector’s “pattern” of behavior over 40 times was integral to
the misuse of the uncharged offense evidence in derogation of his right to a fair trial.
Respondent’s attempts to “put lipstick on the propensity pig” (Surprenant v. Rivas (1st
Cir. 2005) 424 F.3d 5, 23) are unconvincing.
The portion of the CALCRIM instruction that admonished the jurors not to
“conclude from this evidence that the defendant has a bad character or is disposed to
commit the crime,” even when coupled with the instruction admonishing them to follow
the instructions if they conflict with statements of counsel (RB at 93), does not mitigate
the damage suffered by Spector on account of the heavy “pattern” emphasis. As Justice
Jefferson wrote, it is “the essence of sophistry and lack of realism” to make such a claim.
(People v. Gibson, supra, 56 Cal.App.3d at p. 130.) The inadequacy of limiting
instructions in this context is well recognized. (See, e.g., People v. Antick (1975) 15
Cal.3d 79, 98, disapproved on other grounds in People v. McCoy (2001) 25 Cal.4th 1111,
1123 [“Despite limiting instructions, the jury is likely to consider this evidence for the
improper purpose of determining whether the accused is the type of person who would
engage in criminal activity”]; United States v. Thomas (7th Cir. 2003) 321 F.3d 627, 637
[“[D]espite the district court’s use of a limiting instruction, we are not convinced that the
two evidentiary admissions, with their attendant connotations of propensity . . . had no
effect on the jury when it weighed the other circumstantial evidence . . . presented by the
government”].)

54
H. There Was Prejudice
Respondent concludes with an argument that any errors relating to the admission
of and instruction on the uncharged-offenses evidence was harmless. (RB at 94.) This is
so, according to respondent, because of Spector’s “confession,” his post-shooting actions
that evinced his consciousness of guilt, and the forensic evidence. (Ibid.) The state
spends only a paragraph on its harmlessness contention because it is well aware it has
effectively conceded that admission of the §1101(b) material, if error, requires reversal. It
does so in other portions of its brief when it relies on the other offense evidence as a
“crucial” factor in obtaining appellant’s conviction. (See RB at 72 [acknowledging
obvious fact that the uncharged offenses were “crucial” to the jury’s determination of
Spector’s guilt]; RB, at 70: “Appellant’s prior assaults with a firearm on five other
women for sexual purposes also demonstrated that the shooting was a homicide rather
than a suicide, accident, or mistake.”) Furthermore, a salient difference between the first
trial and the second was the trial court’s expansion of the purposes for which the jury
could consider the other offense evidence, instructing that it could be considered to
determine whether Spector committed the charged crime.
Also ignored by respondent is the oft-recognized inherent prejudice carried by
uncharged-offenses evidence. (See, e.g., 1A Wigmore, Evidence in Trials at Common
Law (Tillers rev. 1983) § 58.2, at p. 1212 [“The natural and inevitable tendency of the
tribunal — whether judge or jury — is to give excessive weight to the vicious record of
crime thus exhibited, and either to allow it to bear too strongly on the present charge, or to
take the proof of it as justifying a condemnation irrespective of guilt of the present
charge”].)
Spector concludes, then, where he began — he was denied a fair trial because his
was a trial by character. He should be afforded a trial in which the state presents its proof
of his guilt of the charged offense, untainted by the errors delineated ante and in his
opening brief, and a jury objectively and reliably determines whether it suffices to meet

55
the state’s burden.
III. ADMISSION OF THE TESTIMONY OF VINCENT TANNAZZO
CONCERNING APPELLANT’S PROFANE STATEMENTS ABOUT
WOMEN A DECADE BEFORE THE CHARGED OFFENSE WAS
REVERSIBLE ERROR

A. Introduction
As set forth in appellant’s opening brief (at 119-125), a trial court may admit
evidence of a defendant’s “generic” threat or intent to harm another where such evidence
is relevant to prove the charged offense (see, e.g., Evidence Code section 350); where “. .
. other evidence brings the actual victim within the scope of the threat. . .” (see, e.g.,
People v. Rodriguez (1986) 42 Cal.3d 730, 757); and where neither “. . . the
circumstances in which the threat was made, the lapse of time, [nor] other evidence ...
suggest[s] that the state of mind was transitory and no longer existed at the time of the
charged offense. . .” (see People v. Karis (1988) 46 Cal.3d 612, 637).
In its response to appellant’s challenge to admission of Tannazzo’s testimony, the
state does not, and cannot, dispute this statement of the governing rules. Neither does (or
can) the state dispute that:
• The Tannazzo evidence was admitted, over appellant’s repeated objections
on multiple grounds, solely on the theory that it qualified as evidence of
appellant’s “generic threats” within the meaning of Rodriguez and related
precedent (see AOB, at 112-114, 117);
• The criteria governing the admissibility of generic threats are sui generis
and therefore in many respects distinct from those that govern the
admissibility of defendant’s similar uncharged acts pursuant to Evidence
Code section 1101(b), People v. Ewoldt (1994) 7 Cal.4th 380, 404, and
related authority; and
• Despite their differing admissibility principles, evidence of “generic
threats” has “at least as great a potential for prejudice in suggesting a

56
propensity to commit crime as evidence of other crimes,” a fact that — as
respondent expressly concedes (RB, at 99) — imposes upon the trial court
the duty to “carefully examine” the alleged threats both to determine their
relevance to showing state of mind and intent and to assess “whether the
probative value of the evidence outweighs the prejudicial effect.” (Karis,
46 Cal.2d at 636.)
Application of all of these principles exposes the trial court’s admission of the
Tannazzo evidence as reversible error for not one but a host of elementary reasons, as
appellant’s opening brief explains (at 110-132). The state’s responses to each of
appellants’ supporting arguments fail for the reasons that follow.
B. The Tannazzo Testimony was Inadmissible Because Intent Was
Not in Dispute

The opening brief initially challenged the Tannazzo evidence on the ground that
the sole purpose for which it was admitted, i.e., to establish defendant’s intent at the time
of the charged offense, was not substantially contested at trial, since the charged act, if
proven, simply could not permit a finding of innocent intent. (AOB, at 119-122, citing
People v. Balcom, supra.)
On this point (unlike others discussed below), the admissibility issue is
unquestionably governed by the principles expressed in Ewoldt, such that, “‘[i]n proving
intent, the act is conceded or assumed; what is sought is the state of mind that
accompanied it.’” (Balcom, supra, 7 Cal.4th at 422 (quoting Ewoldt, 7 Cal.4th at 394).)
To be sure, as Balcom recognizes, a defendant’s plea of not guilty puts all elements of a
charged offense in dispute (id., 7 Cal.4th at 422-423), but there are instances, as in
Balcom, where the act, if done, does not permit a finding of non-criminal intent and
permits no “middle ground.” In cases such as Balcom and the present appeal, only the act
is in dispute and evidence concerning intent must be excluded, particularly in light of its
inherently prejudicial effect. (Id., at 422-423.)

57
The state meets this argument not by seriously disputing the Balcom principle but
by observing that the intent placed in issue here was that needed to support a finding of
implied malice, as opposed to express malice, a theory on which the prosecution did not
rely. (RB, at 97: “but implied malice, the theory that the prosecution did rely on, also
requires intent — the intentional commission of an act with conscious disregard for
human life.”) But upon analysis, it becomes clear that the Tannazo statements could not
have possibly been relevant to prove the mental state element of implied malice, and
instead were admitted for the impermissible purpose of establishing identity through
proof of bad character.
If the Tannazo statements had any probative value, and as explained below they
did not, it would be to prove an intent to kill, and respondent admits that the prosecution
never contended at Spector’s retrial that the defendant acted with express malice, i.e., that
he intended to kill Lana Clarkson. Spector never contended that if he shot Clarkson, that
act was not life threatening or he fired the fatal shot without implied malice — a
conscious disregard for the danger to life that act created — nor do the Tannazo
statements logically tend to prove that Spector intended to commit a life threatening act
without an intent to kill, but with a conscious disregard for life. Indeed, the state agrees
that the only real issue in the case was whether “appellant shoved the gun in Clarkson’s
mouth, or [whether] she did.” (RB, at 97.) Here, as in Balcom, only the act was contested,
rendering the other-event evidence of appellant’s intent categorically out of bounds.
//
//
//
//

58
C. The Tannazzo Testimony Was Not Admissible as a
“Generic Threat”

1. The First Statement

a. The Substance of the Statement

Inherent in the admissibility criteria discussed in Rodriguez and Karis is the


requirement that a proffered statement of intent to harm or “generic threat” actually meet
the definition of such a statement or threat in the first instance. (See AOB, at 122-125.)
As appellant has demonstrated, however, his initial statement, as reported by Tannazzo —
made a decade before the charged offense and to the effect that all women deserve a
bullet in their heads — fails to pass even this preliminary threshold.
Specifically, a comment, however pointed or angry, about what women do or not
“deserve” is a far cry from a plain statement of intent to harm that can authorize
admission under governing case law. Echoing the trial court’s rationale, the state
responds that there is no requirement that a generic threat be more definite than that
admitted here because the “context and wording unambiguously showed a deep-seated
belief about women” and because questions concerning the statement’s meaning
implicate issues of weight rather than admissibility. (RB, at 99.)
This claim is nonsense. Case law nowhere suggests that evidence of a “deep
seated” animosity towards a victim class — essentially, simple propensity evidence — is
enough to constitute admissible evidence of a generic threat in a homicide prosecution.
To the contrary, each of the cases cited by respondent (and appellant) approving the
admission of “generic threats” has involved a statement(s) that, on its face, involves the
defendant’s direct statement of an intent to harm rather than a remark about what “should
happen” to another, as occurred here. (See Rodriguez, supra, 42 Cal.3d at 756-758
(defendant “declare[d] that he would kill any officer who attempted to arrest him.” [cited
at RB 98]); Karis, supra, 46 Cal.3d at 634 (defendant stated that “he would not hesitate to

59
eliminate witnesses if he committed a crime.” [cited at RB 98-99]); People v. Lang (1989)
49 Cal.3d 991, 1013 (when asked why he carried gun, defendant pointed weapon at
witness and replied, “I’ll waste any mother fucker that screws with me.” [cited at RB
98]); People v. Cruz (2008) 44 Cal.4th 636, 651 (defendant threatened to kill sheriff’s
deputy other than deputy-victim by shooting him “in the back of the head” [cited at RB
98]).)18 Nor do any of the cited cases suggest that, notwithstanding the potential for
undue prejudice arising from purported threat evidence, the question is merely one of
“weight” rather than admissibility.
Appellant also maintains that his first statement, if a “threat” at all, was so wide-
ranging and without limitation in its object that it does not create a meaningful “class” of
generic victims at all. (See AOB, at 127.) The state essentially responds that the
circumstances surrounding the statement nevertheless “matched” those attending the other
incidents admitted pursuant to section 1101(b) (see Argument II, supra) and the charged
incident itself, and were therefore “sufficiently narrow” to be “probative” of the latter.
(RB, at 100.) This argument is misguided because (1) it fails to address the criteria at
issue, i.e, the class of victims identified in the statement itself and (2) it erroneously
invokes a section 1101(b)/Ewoldt analysis that, even were it applicable, could never
locate the requisite similarity between the “generic threat” evidence and the evidence
relating to the charged offense (or, for that matter, the remaining incidents) that would
permit admission of the former.
//

18
The other two cases on which respondent relies do not implicate “generic threat”
principles as set forth in Rodriguez and Karis at all. See RB, at 98 (citing People v.
Cartier (1960) 54 Cal.2d 300, 311 (approving admission in murder prosecution of
evidence of prior quarrels between defendant and actual victim) and People v. McCray
(1997) 58 Cal.App.4th 159, 172-173 (approving admission in criminal threat and stalking
prosecution of defendant’s prior threats to actual victim where victim’s state of mind was
directly at issue).)

60
b. The Passage of Time
Putting aside its failure to constitute a cognizable “threat” at all, appellant’s initial
statement simply cannot be deemed to reflect an abiding, i.e., non-transient, intent to kill
or harm in light of the substantial amount of time — again, Tannazzo’s shifting account
ultimately settled on roughly a decade — between the statement and the charged offense.
(See AOB, at 119-122.) Recognizing the difficulty presented by this critical condition,
respondent seeks to alter the governing criteria by arguing that lapse of time is merely a
“factor” in determining the duration of the alleged intent under Karis. (RB, at 100-101.)
But Karis does not call for application of a “balancing test” where one “factor,” (here,
time) is weighed against various others to determine an outcome. To the contrary, that
case holds that the remoteness of the threat alone “suggests” impermanence and, with that
suggestion, requires exclusion. (See id., 46 Cal.2d at 637 (evidence of qualifying generic
threat is admissible “unless the circumstances in which the threat was made, the lapse of
time, or other evidence suggests that the state of mind was transitory and no longer
existed at the time of the charged offense. . .”) [emphasis added].)
Furthermore, and of great significance, none of the cases cited by respondent or
located by appellant has approved the admission of “generic threat” evidence after
anything approaching the 10 year period between purported “threat” and offense
appearing here. (See RB, at 98-103.) Having failed to locate any such authority,
respondent seeks to change the subject by invoking decisions in which reviewing courts,
applying section 1101(b), have approved the admission of similar bad acts evidence that
was even more temporally remote. (See RB, at 101, citing People v. Davis (2009) 46
Cal.4th 539, 602 [admitting prior acts as evidence or common scheme or plan and intent
to commit sexual assault] and People v. Steele, 27 Cal.4th 1230, 1245 [admitting
evidence of prior homicide on issue of premeditation as to charged offense].) The
obvious flaw here is that, again, these cases did not involve generic threats at all, but
rather similar acts of misconduct that were proffered and admitted under the different

61
legal criteria required by section 1101(b), People v. Ewoldt (1994) 7 Cal.4th 380, and
related authority. As the trial court in this case recognized and the state cannot credibly
dispute, in no event could the purported threat described by Tannazzo meet such “similar
acts” criteria.19
Applying a related and equally flawed analysis, the state argues that the temporal
lapse appearing in this case may be disregarded because the disputed “threat” occurred
within a “continuous thread” of prior bad acts that the trial court (erroneously) admitted
pursuant to section 1101(b) and Ewoldt. (RB, at 101.) But nothing in the “generic
threats” doctrine permits an inference that an intent to harm others of a class remains in
effect based on a particular bad act(s) directed at a particular person for reasons that may
have had nothing to do with the “generic threat” at issue. Even were a court inclined to
entertain such an approach, it surely should not do so here, where the most recent “bad
act” — that involving Stephanie Jennings (see RB, at 101) — itself occurred many years
prior to the charged offense. Indeed, as appellant has also observed, appellant doubtless
encountered hundreds of women from the time of the first statement and the charged
offense without any incident, providing another basis to conclude that any “intent” he

19
Respondent argues that appellant has “mischaracterized” the holding in People
v. Duncan (1945) 72 Cal.App.2d 247, in which the defendant, charged with murdering his
girlfriend, contended that she had committed suicide and unsuccessfully complained on
appeal of the trial court’s ruling excluding the testimony from the girlfriend’s ex-husband
that she had threatened to commit suicide eight years before her death. (RB, at 101, n.17)
Appellant described Duncan as holding that the girlfriend’s statements were so remote as
to be irrelevant on the issue of her state of mind at death. (AOB, at 104, citing Duncan,
72 Cal.App.2d at 253). Respondent points to Duncan’s observation that other evidence
precluded any possibility that suicide had caused her death and so suggests that Duncan
was not concerned with the passage of time but simply questions of “relevance.” (RB, at
101, n.17) The remoteness of the girlfriend’s statements, however, were key to Duncan’s
ruling. Thus, the Court began its discussion by stating, “The appellant complains that he
was not permitted to show by the testimony of deceased's former husband that deceased
was an habitual drinker and had threatened suicide. The testimony was excluded as too
remote. The ruling was sound.” (Duncan, 72 Cal.App.2d at 253 [emphasis added].)

62
purportedly expressed in the challenged statement was either non-existent at that time or
dissipated with his departure from the Christmas party. (See AOB, at 128-129.)
c. The Circumstances Surrounding the
Threat

Yet another fatal obstacle to admission of the first statement is raised by


consideration of the circumstances in which it was made. (Karis, 46 Cal.2d at 637.)
Here, the trial evidence discloses virtually nothing about the specific events that preceded
appellant’s argument with Dorothy Melvin or otherwise explained appellant’s first
challenged statement. In no event could the trial court reliably conclude that the
circumstances that attended or prompted the statement continued in a manner that
rendered non-transitory any intent the statement expressed.
d. Other Evidence
Appellant has also observed that Tannazzo’s testimony strongly indicates that if
appellant’s initial statement was a “threat” at all, the trial court should have deemed it an
idle one and excluded on this ground alone. (AOB, at 129.) Respondent counters that the
statement was relevant to show appellant’s “intent, motive, and state of mind in directing
the gun” at Clarkson and most of the other “assault victims” and that appellant’s conduct
at other times shows the “seriousness” of the disputed threat. (RB, at 101-102.)
Application of the “generic threats” doctrine, however, is not like creating a goulash that
improves with each new ingredient. The law did not authorize the trial court to consider
other events that could never qualify as “similar” for any purpose recognized by Ewoldt
when it assessed the meaning and admissibility of the purported “generic threat.”
Respondent’s further claim that the “threat” was at least relevant to demonstrate the intent
required to prove implied malice (RB, at 102) falters because if appellant’s statement did
not constitute a threat to shoot all women in the head — and it obviously did not — it
patently failed to qualify as an enduring intent to consciously endanger a woman’s life
some ten years later.

63
2. The Second Statement
The second statement reported by Tannazzo, purportedly made a year after the
first, was, by its terms, directed at specific woman whose name was unknown and for
reasons that were equally unknown. Accordingly, because the statement was not directed
at a class of victims of whom Ms. Clarkson was one, it clearly was not cognizable as a
“generic threat” under Rodriguez, as the trial court erroneously ruled. (See AOB, at 129-
130.) The state essentially concedes this point but urges that the second statement was
admissible to “show the seriousness in which (sic) he made the earlier, more general
statement.” (RB, at 103.) However, neither the “generic threats” doctrine nor any other
principle of state evidentiary law, including the 1101(b) tests articulated in Ewoldt, has
ever authorized the admission of evidence of a defendant’s character in the form of a
specific incident for such a purpose.
D. The Remainder of the Tannazzo Testimony Was
Inadmissible
Appellant also contends that the trial court erred in admitting those portions of the
Tannazzo testimony that far exceeded his account of appellant’s challenged statements.
(See AOB, at 130.) Respondent first responds that appellant forfeited this claim because
he did not secure a ruling on it from the trial court. (RB, at 103-104.) Appellant,
however, objected to precisely this evidence by means of a pre-trial motion in limine that
(1) addressed the specific legal theories for excluding the evidence; 2) was directed at a
specific body of evidence, i.e, that identified in the opening brief; and 3) was made at a
time when the court was able to determine the evidentiary question in its appropriate
context. (CT 5763-5778; CT 5816-5820.) Furthermore, in ruling that the disputed
statements would be admitted, the trial court effectively ruled that the remaining evidence
proffered by the prosecution would be admitted as well. Accordingly, appellant’s motion
in limine preserved this issue on appeal such that appellant was not required to renew it at
trial. (People v. Morris (1991) 53 Cal.3d 152, 189.) Indeed, given the trial court’s ruling

64
at the second trial and its admission at the first trial of both the Tannazzo statements as
well as the remaining evidence challenged here, any further objection would have been
futile. (People v. Arias (1996) 13 Cal.4th 92, 159.)20
As a substantive matter, respondent argues that the remaining Tannazzo testimony
was needed to provide “context” to the disputed statements themselves and to
demonstrate appellant’s “state of mind, motive, and intent.” (RB, at 104-105.) Apart
from the statements, however, virtually all of the remaining events described by Tannazzo
lacked probative value as to the sole purpose (intent) for which the statements were
admitted but were highly prejudicial to appellant. The trial court accordingly erred by
admitting this evidence at trial.
E. The Tannazzo Testimony Was Barred by Evidence Code
Section 352 and the Federal Due Process Clause

As previously noted, because “generic threat” evidence has “at least as great a
potential for prejudice in suggesting a propensity to commit crime as evidence of other
crimes,” a trial court must carefully weigh the probative value of such evidence against its
potential prejudicial effect under section 352. (Karis, 46 Cal.2d at 636.)
Respondent opposes appellant’s claim that the Tannazzo evidence should have
been excluded under this standard (AOB, at 131-132) with a conclusory argument about
its purportedly high probative value. (RB, at 105-106.) Appellant simply replies that if
the obligation described in Karis has any true meaning at all, it required the trial court to
bar the Tannazzo evidence in light of the facts that the challenged statements (1) cannot
reliably be deemed true “threats,” (2) against a meaningful class of victims, (3) nor can
any expressed intent be deemed to have continued given both the passage of time, and (4)

20
Respondent complains that appellant has not supplied record citations for this
category of challenged evidence. (RB, at 104, n.19.) But the relevant citations plainly
appear in the factual summary provided in the opening portions of appellant’s argument.
(AOB, at 114-116.)

65
the uncertainty concerning the circumstances that prompted the statements. Added to
these factors undermining the persuasive force of the evidence is the obvious cumulative
effect of all the Tannazzo evidence when considered in conjunction with the extensive,
uncharged offense evidence admitted under section 1101(b). (See AOB, at 131.)
Finally, defendant’s federal constitutional challenge to admission of the Tannazzo
evidence “[does] not invoke facts or legal standards different from those the trial court
itself was asked to apply, but merely assert that the trial court's act or omission, insofar as
erroneous for the reasons actually presented to that court, had the additional legal
consequence of violating the Constitution.” For that reason, and contrary to respondent’s
claim (RB, at 106), the federal constitutional dimension of this claim may not be deemed
forfeited on appeal. (People v. Rogers (2006) 39 Cal.4th 826, 850, n.7.)
F. The Court’s Instructional Error Exponentially
Compounded the Prejudice of Its Error in Admitting the
Tannazzo Testimony

In the final portion of his argument, appellant contends that the trial court’s
instructions greatly magnified the prejudice arising from admission of the Tannazzo
evidence given that, as read, the instructions invited jurors to consider such evidence for a
variety of purposes governing the “other incident” evidence admitted under section
1101(b) and failed to explain the proper limits applicable to such testimony under
Rodriguez and related precedent. (AOB, at 132.)
For whatever reason, respondent ignores the plain import of appellant’s discussion
and characterizes appellant’s prejudice argument as advancing an independent,
substantive claim of instructional error. (RB, at 106, et seq.) Having done so, respondent
submits a lengthy opposition to its own straw man, contending that: (1) appellant
“forfeited” one component of his supposed claim by not seeking a limiting instruction,
and that (2) appellant “invited error” by requesting that the court not re-read an
instruction that omitted reference to the Tannazzo evidence but that the court instead

66
direct jurors to consult the written instructions that omitted the reference. (RB, at 106-
112.)
This argument misses the point. The state does not dispute that: (1) prior to
argument, the trial court had recognized its obligation to read an instruction that limited
the Tannazzo evidence in a way that “other offense” instruction did not, and (2) the court
erred when it failed to so limit the Tannazzo evidence. (45 RT 8735-8737; 48 RT 9672-
9674; 48 RT 9690-9691.) At that point, defense counsel confronted a Hobson’s choice
because a re-reading of an 1101(b) instruction that omitted the reference to the Tannazzo
evidence would only serve to emphasize the importance of the erroneously admitted
1101(b) evidence discussed elsewhere in the instruction. It was only in this context that
appellant’s trial counsel asked the court to instruct jurors to consult the written instruction
in lieu of a re-reading.21
All of this is to say that, as appellant has maintained, it was the admission of the
Tannazzo testimony as evidence of “generic threats” that constituted the trial court’s
substantive error. The court’s additional failure to deliver a promised instruction
ultimately led jurors to hear an erroneous one, and then be told to consult a truncated one
that effectively permitted them to make whatever use of the Tannazzo evidence they
chose. That development, in conjunction with the content of the evidence and the
prosecution’s reliance upon it in opening statement and closing argument, established the
prejudicial effect of the asserted evidentiary error under any available standard of review.
(See, e.g., People v. Guiton (1993) 4 Cal.4th 1116, 1130 [reviewing court should examine
entire record, including arguments of counsel, to determine prejudice from instructional
error]; United States v. Kojayan (9th Cir. 1993) 8 F.3d 1315, 1318 [“Closing argument
matters; statements from the prosecutor matter a great deal.”].)

21
In no event can this Court conclude that defendant erroneously failed to seek a
limiting instruction in the first instance since the trial court had expressly stated its
obligation and intent to give such an instruction.

67
IV. PROSECUTION MISCONDUCT DURING FINAL ARGUMENT
PREJUDICED APPELLANT’S RIGHT TO A FAIR TRIAL

A. The Misconduct Arguments are Not Forfeited


Appellant’s claims of misconduct in the prosecution’s closing argument are found
in the subheadings “C” and “D” of Argument IV in his opening brief, both of which relate
to the prosecution’s unfounded assertions that defense counsel paid expert witnesses to
give false testimony. (See AOB, pp. 139, 142.) Respondent’s contention that these
claims have been forfeited is meritless. To give context to the prosecutor’s attacks raised
here as error, appellant pointed to related statements castigating appellant’s defense as not
“liking” the truth, unlike prosecutors whose job it was to “give you [the jury] the truth”
(48 RT 9548-9549; 9550), or that the defense was an invention. (48 RT 9558.) These and
other comments, noted at RB 117-120, were the prelude to the statements at issue — that
appellant paid experts to invent testimony on behalf of the defense. (People v. Dennis
(1998) 17 Cal.4th 468, 522 [“we must view the statements in the context of the argument
as a whole”].)
As respondent states at RB 113, forfeiture “does not apply if a defendant's
objection or request for admonition would have been futile or would not have cured the
harm caused by the misconduct; nor does it apply when the trial court promptly overrules
an objection and the defendant has no opportunity to request an admonition.” (Citing
People v. McDermott (2002) 28 Cal.4th 946, 1001.)
Here, appellant objected to the arguments that “we paid for false testimony” for
“people to lie,” asserting that prosecutor Jackson is “accusing me — he is accusing me of
buying testimony. That is misconduct.” (48 RT 9606.) The court responded that the
prosecutor’s arguments were a “fair inference” from the record. (See AOB, at 138-139.)
This was completely unsupported by the record. The only suggestion made by the court
to the prosecutor was: “[t]hat is not the way I read it, but please clear that up.” (48 RT
9606.) This was followed by the prosecutor’s telling the jury the defense expert

68
witnesses were not credible because of the money they were paid. In no way did the
prosecutors retract (because they were not so ordered) the statements that the defense had
to “[j]ust go out and buy yourself a scientist.” (48 RT 9605); that this was a pay-to-say
defense in that “[y]ou pay it; I'll say it, no matter how ridiculous it is” (ibid.); or that the
defense strategy was all an illicit scheme (a “machination”) to hide from the jury the
truth: “The total cost to the defense to hide the truth from you folks, a staggering
$419,000. Cogitate on that number for just a second. A staggering $419,000 bucks to hide
the truth.” (48 RT 9606; italics added.)
Respondent’s argument that the prosecutor eliminated any improper suggestion by
his statement that the jury could consider the money experts were paid in order to assess
their credibility (quoted at RB 137-138), does not remove the stain of accusations the
defense purchased testimony to hide the truth from the jurors. There was no attempt by
the prosecutors to do so.
Furthermore, even if the defense objections were imperfectly made, then the
futility exception would apply. As the record reflects, the trial court did not agree there
was misconduct. Indeed, the court stated the arguments were a “fair inference” from the
evidence. Thus, even a perfectly made “timely objection and admonition would [not] have
cured the harm” because the court was not of a mind to give any such admonition.
Counsel need not ask for a curative instruction after an objection when the court finds no
error. (People v. Demetrulias (2006) 39 Cal.4th 1, 32 [once the objection is overruled,
counsel need not ask the jury to be admonished].) Thus, this court must reach the issue of
whether there was error resulting in a miscarriage of justice (People v. Marquez (1992) 1
Cal.4th 553, 575-576), or denied the due process of law guaranteed by the Fourteenth
Amendment.
No curative instruction regarding the prosecution accusations was given, leaving
undiminished the stain of the objectionable comments heard by the jury. Only at the end
of the case as part of the general instruction was it briefly stated that arguments are not

69
evidence.22 This comment was buried amidst all the instructions (48 RT 9658) and
without any direction concerning the attacks on counsel for dishonesty.
To the extent respondent argues the defense was too late in making the misconduct
objections (see RB 114), the argument fails. Counsel objected on the same transcript
page as the accusations that the experts were paid “to hide the truth.” To be sure, the
prosecutor made similar arguments earlier (see AOB 137-138), but as was recently stated
in People v. Vance (2010) 188 Cal.App.4th 1182, 1198, counsel need not jump to object
to the first instance of misconduct for fear of forfeiture:
The Attorney General appears to believe that an objection
must be made at the very outset of assertedly improper
comments, and only at the very beginning, lest the power to
object be effectively lost. In other words, there can be no
effective objection once the improper remarks are underway.
It is understandable why the Attorney General does not cite a
single decision that endorses such a draconian rule. It makes
no allowance for defense counsel who may be a little slow to
appreciate the thrust of the argument. It makes no allowance
for counsel who might initially decide not to object in the
tactical hope that an improper remark is isolated, and
therefore should not be emphasized to the jury with an
objection. As shown above, once defense counsel decided to
object to the prosecutor's continued argument, he did
so—repeatedly and insistently—in a timely manner. We
therefore reject the argument that defendant's contention was

22
Compare People v. Cummings (1993) 4 Cal.4th 1233, 1302 (cited at RB 116
and 119), where the Court observed: “If there is a reasonable likelihood that the jury
would understand the prosecutor's statements as an assertion that defense counsel sought
to deceive the jury, misconduct would be established. [Citation] It is possible that, taken
alone, the prosecutor's argument might have been so understood. However, any
implication in the argument that defense counsel engaged in deception was removed by
the trial court's admonition, after a defense objection was sustained, that the court was
certain that counsel were not trying to impugn the integrity of any parties to the
proceedings.” (Italics added.) Here, neither admonitions nor sustained objections
occurred.

70
not preserved for review.

The defense objection was correct and the court was wrong not to intercede.
(Vance, supra at 1201, “the possible prejudicial effect of the improper comments by the
prosecutor was exacerbated by the trial court's passive reaction to them.”)
Finally, this court always has discretion to review misconduct claims when the
objection below is less than perfect. In four of the cases relied upon by respondent, after
finding forfeiture, the reviewing court went on to decide the merits of the issue. (See
People v. Cunningham (2001) 25 Cal.4th 926, 1002; People v. Gionis (1995) 9 Cal.4th
1196, 1215; People v. Cummings (1993) 4 Cal.4th 1233, 1303 fn. 48 ]; People v. Marquez
(1992) 1 Cal.4th 553, 576.)
In People v. Crittenden (1994) 9 Cal.4th 83, 146, the court held that defense trial
counsel waived issues of prosecutorial misconduct in final argument for failure to timely
object. Then, the court reviewed the merits of the issue “in view of the potential claim
that counsel's failure to object on the specific grounds urged on appeal denied him his
rights under the state and federal Constitutions to the effective assistance of counsel
[IAC], we review these claims on the merits.” given the egregious nature of the
accusations, the objections that were made and the lack of judicial intervention, the issue
merits full review.23
For any or all of the above reasons, the misconduct issue is reviewable.

23
Because of the arguments defense counsel made in objecting to the prosecution’s
accusations, there could be no possible strategy in not making proper objections. (See
People v. Asbury (1985) 173 Cal.App.3d 362, 365-366 ("The fact that counsel objected to
the felony-murder instructions at all, however, refutes any inference that he was pursuing
some tactical advantage by withholding the collateral estoppel argument.") As such, if
there was any deficiency in the objections raised below, the failure to object properly
would constitute ineffective assistance of counsel. (People v. Fosselman (1983) 33
Cal.3d 572, 581 [bar to review of People v. Green (1980) 27 Cal.3d 1, 34 may be avoided
if the failure to object to the misconduct in final argument deprived appellant of the
effective assistance of counsel].)

71
B. The Prosecution’s “Machinations of the Truth”Theme
Was the Context for the “Hide the Truth” Argument with
Respect to the Expert Witnesses

The prosecution’s attack on defense counsel for paying for false testimony was not
simply a criticism of “defense tactics and evidence,” as respondent argues. (RB 116.)
The rule is one of boundaries: evidence-based attacks on witness credibility are permitted,
but not baseless accusations that defense counsel is dishonest in procuring witnesses in
order to hide the truth from the jury. “Argument may not denigrate the integrity of
opposing counsel, but harsh and colorful attacks on the credibility of opposing witnesses
are permissible.” (People v. Arias (1996) 13 Cal.4th 92, 162; italics in original; accord
People v. Sandoval (1992) 4 Cal. 4th 155, 183-185.) From the prosecutor’s opening final
argument, the attack was initiated on defense counsel such that the latter had to address
the issue in his own argument: “The prosecution, apparently, thinks that you find me
untrustworthy. Apparently, that was the meaning of Ms. Do’s argument yesterday.” (48
RT 9344.)
Respondent argues the aspersions cast on defense counsel for his alleged
“machinations of the truth” and similar comments were proper. The term “machination”
is defined as “a scheming or crafty action or artful design intended to accomplish some
usually evil end.”24 In context, the word conveyed that appellant’s counsel was a schemer
to achieve an evil end, i.e., the suppression of the truth. In fact, they explicitly argued he
hired the experts in order to hide the truth from the jury.
Prosecutors may zealously argue their cases and strike hard blows in the process,
but not foul ones. (Berger v. United States (1935) 295 U.S. 78, 88.) Respondent goes
through each of the statements at issue to explain that they in some way responded to

24
See Webster’s on line dictionary: http://www.merriam-webster.com/dictionary/
machination?show=0&t=1288998846.

72
defense positions. (See RB 117 et seq.) But it is one thing to point to the evidence to
argue the defense position is unsupported or contradictory, and another to label the
process as counsel’s dishonest scheme to suppress the truth. It is this context that defines
the prosecution argument that counsel paid his experts to say whatever he wanted them to
say no matter how ridiculous in order to keep the truth from the jury.
For reasons of space limitations and because it is not particularly useful for this
court to review it, appellant will not rejoin respondent’s efforts to show why the alleged
“shifting sands” arguments were not supported. Suffice it to say that each argument was
met by evidence by defense counsel in his summation.
To give one example, respondent states the prosecution commented on the
changed defense theories of how and why Clarkson’s arms showed bruises. (RB, at 117.)
Yet, if there was a seismic shift on this issue, it came from the prosecution’s witnesses.
Dr. Peña could not identify the bruises as having anything to do with a struggle. (The
house showed no signs of struggle between appellant and Clarkson.) He testified it was
possible the bruises were caused when Clarkson's arms hit the chair after the shot or that
she had received them earlier at work. (21 RT 4124-4128.) Before the grand jury, he
testified he could not even give an opinion as to the cause of the bruises. (21 RT
4118-4119.) He also previously testified he could not tell whether the bruises occurred
simultaneously. (24 RT 4691.) But at appellant's trial years after his grand jury
testimony, he told the second jury he was sure they were from a struggle and not just
consistent with a struggle (21 RT 4118), explaining, "I have had time to think again over
the number of years that have passed and seen more." Then he retreated to saying the
bruises could be merely "consistent with struggle." (21 RT 4142.) Then he admitted
there were "other readily available causes for these bruises." (24 RT 4684-4685.) Indeed,
he agreed with studies that said the timing of bruises cannot be precise. (21 RT 4140.)
None of the State's criminalists who closely examined and photographed the body at the
scene noted any bruises on the arms.

73
More generally, respondent’s argument that the “prosecution thus properly retorted
that it was the defense that was avoiding the truth....” (RB, at 120) is not supported by the
record. The theme of the “machinations of the truth” came in the opening portion of the
prosecution’s final argument (see AOB, p. 137.) Obviously, the accusation of
“machinations” was not responsive to the defense closing argument. Further,
respondent’s position is not substantively supported because the theme of the defense
argument was based on science. The one isolated defense comment about the “truth”
cited in Respondent’s Brief concerned the lack of merit in the prosecution’s position that
the fatal shot was not self-inflicted. Appellant’s counsel argued from the evidence
showing that 99% of intra-oral shots are self-inflicted that to ignore this fact “is to
choose to ignore reality, to choose to ignore truth and go look for an excuse.” (48 RT
9353.)
That hardly justified the pervasive attack on him in both opening and rebuttal final
arguments. In any event, there is no “open door” rule to permit misconduct. (See People
v. Perry (1972) 7 Cal.3d 756, 790; see also People v. Pic'l (1981)114 Cal. App.3d 824,
871, overruled on other grounds, People v. Pic'l (1982) 31 Cal. 3d 731, [“Two wrongs
do not make a right. Thus, defense counsel's misconduct does not justify a tit-for-tat
answering misconduct by the prosecutor. We consider this to be the teaching of People v.
Perry (1972) 7 Cal.3d 756"].)
Respondent defends the prosecution’s argument regarding defense counsel going
“through the machinations of the truth to avoid it, to change it, to move it from here to
here. I mean, this is almost like an inside joke with us because we’ve seen this moved to
here.” (47 RT 9276.) Respondent’s defense of this “inside joke” between the two
prosecutors is that it was not an attempt to smuggle into the case an inference that the
prosecutors had an “inside joke;” i.e., personal beliefs about defense counsel’s
machinations and not an argument based on factual information known only to the
prosecutor. (RB 121.) The rejoinder fails. The comment and the others like it were not

74
mere “arguments that defense counsel called witnesses that gave implausible testimony.”
(RB 123.)25 They were attacks on counsel’s integrity that he put on phony evidence to
“hide the truth” from the jury.
C. Arguing the Defense Was a “Pay to Say” Case in Which
the Defense Paid Experts to Give Preposterously False
Evidence to “Hide the Truth” Was Not Supported By the
Evidence and Was Misconduct

As appellant stated in his opening brief, he has no quarrel with the proposition that
the prosecution may vigorously argue that compensation to witnesses may color their
credibility. (See AOB, pp. 142-143, citing People v. Parson (2008) 44 Cal.4th 332,
362-363), People v. McGreen (1980) 107 Cal.App.3d 504, 514-519.) The core subject of
the present argument is the prosecution’s claim that appellant’s trial counsel fabricated his
defense by hiring expert witnesses to give false testimony.
It first should be noted that the alleged “evidentiary reasons” that the defense
experts’ testimony was unsound (and thus fair game for adverse comment) should be
compared to the prosecution experts’ alterations of position. Dr. Herold (see AOB, pp.
45-46) and Dr. Peña (see supra) made dramatic changes in their positions over the years,
yet the defense did not argue to the jury that the changes were prosecution “machinations
of the truth,” or examples of "[j]ust go[ing] out and buy yourself a scientist (48 RT
9605), or "[y]ou pay it; I'll say it, no matter how ridiculous it is" (ibid.), or an effort by
counsel “to hide the truth." (48 RT 9606.)
There is a qualitative difference between arguing about the impact of
compensation on witness credibility and accusing the defense attorney of paying money to
experts for “ridiculous” testimony “to hide the truth.” There is no requirement that the

25
Appellant’s brief reference to the court’s corrective actions in the first trial
(AOB 141-142) was not argued as a basis of reversal. (See RB 122-123.) It was argued as
a contrast to the court’s lack of similar corrective action in this case.

75
words “suborned perjury” must be used to cross the line of misconduct. (See RB 124.) It
is clear enough from the language used that the charge was that counsel was dishonest
and paid enormous sums to buy experts to say anything helpful to the defense, no matter
how ridiculous, all in a campaign to hide the truth from the jury. This is to be contrasted
with what the prosecutor told the jury of the prosecution role: "My job, Ms. Do's job, is
to give you the truth." (RT 9549.) On the other hand, the defense role was characterized
as a series of “parlor tricks”: “Mr. Weinberg doesn’t like the truth.” He just moves it.”
(RT 9550.)
Respondent states such comments are proper when supported by evidence: “The
prosecution also may argue that defense counsel intentionally clouded the facts as long as
there is evidence to support that claim.” (RB 125.) There is not the slightest evidence
Mr. Weinberg did anything to buy experts26 for shaped, preposterous scientific testimony.
In fact, the most reputable, experienced experts were employed, each of whom had plenty
of scientific basis for their expert opinions. (People v. Bain (1971) 5 Cal.3d 839, 847
[“[t]here is no basis for the claim of fabrication by defense counsel, and the prosecutor's
comment to that effect must be deemed misconduct”].)27

26
Mr. Weinberg did not “go out and buy” these experts as most were hired before
the first trial where they testified. This was long before Mr. Weinberg was on the case.
(See Dr. Di Maio [FT 6178 et seq.]; James Pex [FT 7727 et seq.]; Dr. James [FT 7936 et
seq.]; and Dr. Spitz [FT 8205 et seq].) The second trial was a reason for higher costs for
the experts.
27
See State v. Hughes (1998) 193 Ariz. 72, 84; 969 P.2d 1184, where the
prosecutor went “out of bounds, and outside the record, to argue that psychiatrists create
excuses for criminals.” As in this case, the prosecutor in Hughes argued that defense
counsel paid a doctor for a result: “[the doctor] knows the result he's looking for, and
that's it. He knows the result he is looking for. Subject comes in with schizophrenic --
potential schizophrenic diagnosis. He knows right there what he is looking for, and $ 950
later, yes, that's what he's got..... . . He knows the result for he knows the result he wants.”
The court held: “It is improper for counsel to imply unethical conduct on the part of an
expert witness without having evidence to support the accusation.” (Id., at 86.) The case

76
D. There Was No Evidence the Experts Were Bought to Say
Anything the Defense Desired.

Respondent addresses each of the experts identified in appellant’s argument. (RB,


at 127-133) and then quotes or summarizes the prosecution accusations made in final
argument. (RB, at 136, et seq.) None of the analysis justifies the prosecution argument
that the defense overall approach to the science was to buy experts to testify to the
ridiculous in an effort to hide the truth from the jury. That is not a reasonable inference
from the evidence. It is misconduct. Nor was there evidence to support the claim that
payments alone were the true basis for their expert opinions.
Each expert’s testimony at trial was detailed and lengthy. Each expert
demonstrated the basis for his or her opinion. They were not just made up or “ridiculous”
opinions. While it is not productive to assess the content of respondent’s arguments
about the expert’s testimony, the record reflects that their opinions were reasoned,
supported by the experience and expertise of the expert, as reflected in voluminous pages
of the transcript. (See summaries of their testimony at AOB 14 as to Dr. Loftus; AOB 34
as to Dr. Seiden; AOB 38-40 as to Dr. James; AOB 40-41 as to Dr. Spitz; AOB 41-42 as
to James Pex, and AOB 43-44 as to Dr. Di Maio.)
The issue here is whether there was any basis to argue that the defense experts
gave ridiculous “pay to say” testimony. Respondent concedes as to Dr. Loftus that “there
was no testimony about the exact amount Loftus was receiving in this case.” (RB 127.)
In fact, there was no testimony at all about her compensation, yet respondent argues the
defense can be ridiculed for using her as part of the “pay to say” theme and that she could
be attacked “in part because she was a paid witness.” (RB 127.) Even if theoretically
permissible, the “pay to say” argument at a minimum would require evidence of some

was reversed for multiple instances of misconduct.

77
payment.
As to Dr. Seiden, the only testimony regarding compensation was that he was paid
$6,000 in addition to the time spent testifying (42RT 8239), hardly supportive of a “pay to
say” expert. As to Dr. Stuart James, his compensation bias evidently only applied when
he testified to findings supportive of the defense. (See RB, at 130-131.)
As to Jim Pex, his flub on the photos in his powerpoint presentation (using a photo
of a different handgun instead of the one at issue) certainly was argued by the prosecution
as mendacious. There was only one problem: no matter what make of handgun, the laws
of physics would apply to both: if appellant held the gun in his hand when it fired there
would be no blood or blood spatter on the front of the grip where the fingers would be.
That is all Pex’s photos sought to demonstrate. And there was blood spatter there. (36
RT 7012-16.) The prosecution did not refute the existence of spatter being in that
location. Pex’s findings of impact spatter stains on the gun grip were peer-reviewed by
Dr. Stuart James and another scientist. (37 RT 7054.) Dr. Di Maio also noted the lack of
a prosecution explanation for such spatter if its theory of homicide were correct. (40 RT
7714-7717.) (See RB 134, asserting that Pex’s testimony only basis for spatter on the
front of the grip.)28 Dr. Herold, the prosecution spatter expert, would only testify, “I
wouldn’t say one way or the other on the stand [as to spatter being on the forward grip]. I
would want to go back to the original photography and examine it. It is not obvious
spatter to me.” (RT 5160.) This statement was made six years after Clarkson’s death and
after the first trial, where the defense of suicide was quite explicit. Dr. Herold never
returned to the stand to answer the question.
With regard to Dr. Spitz and Dr. Maio, these two experts are nationally, if not
world, renowned. Both literally “wrote the book” on their subject of expertise. They

28
Examination of the photos of the gun grip shows blood. Detective Lillienfield
testified to the blood on the strap of the gun. (RT 3192-3193.) Dr. Herold testified to the
forward-facing part of gun grip and strap having blood all over it. (RT 5154.)

78
were well compensated for their extensive work and hours committed to the case over the
course of two trials. There was no basis to argue that Mr. Weinberg defense hired these
experts to hide the truth, or that the experts rendered opinions based on just money rather
than science and evidence.
In his opening brief, Spector argued that the baseless nature of the prosecution’s
“say for pay” attack on the defense experts was demonstrated by the fact that there was no
conflict in the evidence concerning five major points showing suicide (at AOB 146-147).
Some of respondent’s responses on these points reveal the weakness of the prosecution’s
position below. (RB, at 133-135.) Thus, in arguing against the fact that 99% of intra-oral
gunshots are suicides,29 respondent argues that Dr. Seiden did not find clinical depression
or find expressed thoughts of suicide in Clarkson’s emails. (RB 134.) This is a supposed
rebuttal to the 99% figure. One wonders what the Clarkson email on December 8, 2002
meant when it stated: “I am truly at the end of this whole deal. I’m going to tidy up my
affairs and chuck it....” (Exhibit 572; see AOB p. 31-32.) Two witnesses, Hayes and
Sims, testified to her extreme despair and desire to die expressed (in Sims’ testimony) just
shortly before she died. (AOB 34.) With respect to Ms. Clarkson’s despairing emails
weeks before her death, respondent argues that these were selectively chosen (RB 135),
but does not refute their content or the temporal proximity to her death. Dr. Seiden
testified to the great number of risk factors for suicide present in Clarkson’s life at the
time of her death. (See AOB, p. 35.)
The issue of the blood on the gun grip (discussed supra) stands unrefuted. Herold
declined to say there was spatter on the forward facing gun grip, explaining that she
would have to look at the photos, but she never returned to testify.
As to the alleged refutation of the defense’s reliance on the absence GSR and

29
In questioning Dr. Di Maio’s 99% figure on the probability of suicide, the
prosecutor prefaced a question stating, “Granted, nobody is going to argue that most
intraoral gunshot wounds are [not] self-inflicted.” (RT 7784.)

79
spatter on the jacket (RB, at 134), the prosecution chose not to test “[a]ppellant’s
clothing...for GSR because his clothing would be expected to contain GSR given the
number of his guns in this house.” [!] (RB,, at 134.) The problem with this excuse was
that the other guns in the house were in the upstairs room inside a box. (19 RT 3467.) If
there had been GSR on the jacket, this would have been evidence; yet, the investigation
elected not to test for it. (RT 19 3561.) Further, what respondent labels spatter on the left
sleeve was a transfer stain, according to Dr. James. (29 RT 5759-5760, disagreeing with
Dr. Herold.)
As to Dr. Di Maio, his opinion was straightforward that this was a suicide. (40 RT
7684 et seq.) The so-called concessions made on cross-examination were in response to
hypothetical questions which removed the factual basis for his opinions.30
Says respondent, “[t]he prosecution rigorously disputed every material aspect of
defense evidence.” (RB, at 135.) That may be so, but the dispute did not refute the
evidence nor explain the inexplicable decisions made in the investigation. Thus, while
Sheriff’s criminalist Steve Renteria swabbed bloody areas of gun that would be held by
the shooter and found no DNA attributable to appellant (RT 3181), he did not test other
areas of the gun because that would be “handler” DNA. (RT 3793.)31 That is, if
appellant’s DNA were on the gun, it could be explained away by it being his gun, so why
bother? That might be true, but evidence of the complete absence of his DNA on the gun

30
See, e.g., RT 7827: “Q. If I asked you to assume the following to be true, assume
that what's on that, the front strap, is actually smeared blood and flaked-off blood, all
right, based on earlier testimony, assume that to be true, if that is not spatter, okay, if that
is not spatter, there's nothing inconsistent with Phil Spector having held the gun? A. If
that is not splatter, it does not — It's — that removes one of the arguments, right.”(40 RT
7826-7827.)

31
A Lexis search of the phrase “handler DNA” reveals no cases discussing it,
much less stating it is a reason not to test for DNA.

80
grip and trigger would be highly probative of his not firing the gun that night. That
question was the issue in the case.
Renteria admitted there were portions of gun that had no blood on them and that
would have been handled by the shooter, but that were not tested for DNA. (RT 3800,
3863.) Although it would have been possible to find DNA on the trigger, they did not test
for it there. (RT 3805.) DNA is a powerful instrument, perhaps the most powerful
forensic tool in existence. Other California prosecutions have not been so reticent about
testing gun grips and triggers for the DNA of the alleged shooter. (See, e.g., People v.
Becerra (2008) 165 Cal.App.4th 1064, 1067 [search of defendant’s apartment turned up
the gun used in a murder, and his DNA found on the trigger and grip revealed that “the
chance that a random person could not be excluded as a main contributor of the DNA was
1 in 700,000 for the DNA on the trigger and one in 10 billion for the DNA on the grip.”].)
Such inexplicable failures to DNA test the trigger and grip, as well as the
morphing of the State’s expert testimony (e.g., Dr. Peña, Dr. Herold, Ms. Lintemoot) all
in the direction of supporting a conviction, does not speak for a neutral scientific
investigation but rather for a desired result.
Finally, respondent cites People v. Sandoval (1992) 4 Cal.4th 15 for its approval of
the prosecution examination of a witness in the case and distinguishing that conduct from
the more egregious conduct in People v. McGreen (1980) 107 Cal.App.3d 504. (RB, at
138.) Sandoval found permissible the fact that “the prosecutor elicited testimony tending
to show bias by questioning the witness about his contrary testimony in previous cases
and his interest in helping the defense.” (Sandoval, supra, at 180.)
Appellant agrees that the case is instructive on this issue for several reasons. First,
the Court stated, “We have also held it improper for the prosecutor to imply that defense
counsel has fabricated evidence or otherwise to portray defense counsel as the villain in
the case.” (Id., at 183.) Second, the trial court in that case “sustain[ed] [the defense]
objection to the accusation of [counsel] perpetrating a fraud on the court. It admonished

81
the jury to disregard the comment, stating that there had been no perpetration of a fraud
by any lawyer in this case.” (Id., at 184.) Appellant here received no such protective
instruction. Third, while a prosecutor is entitled to argue inconsistencies in the evidence
and characterize inconsistent testimony as lies, the “prosecutor went beyond that point on
several occasions, denigrating counsel instead of the evidence. Personal attacks on
opposing counsel are improper and irrelevant to the issues.” (Ibid.)
E. There Was Prejudice.
Respondent relies upon the prosecutor’s purported clean-up statement following
the objections by appellant. As noted above, in no way was any accusation against
counsel removed from the case by the comments cited at RB 137-138. Nor were these
comments “isolated remarks.” (RB, at 140.) The theme of defense counsel’s
machinations of the truth and similar comments were ongoing and best exemplified by the
accusation that defense counsel went out to buy phony expert evidence to hide the truth
from the jury.
The court’s cursory final instruction stating that nothing the attorneys argue is
evidence was not curative. It neither spoke to the prosecution’s denigration of defense
counsel nor told the jury there was no evidence that Mr. Weinberg purchased testimony to
hide the truth from them. Respondent’s reliance on People v. Young (2005) 34 Cal.4th
1149, 1193, is meritless. (RB, at 140.) Young was convicted for having murdered three
men who were all shot from behind while begging for their lives or trying to run away.
The murders were either eye-witnessed or the defendant was seen with the victims as the
fatal shots were fired. All the bullets from each of the homicides came from the same
gun. The evidence was thus extremely compelling. Young found misconduct in the
prosecutor’s “brief remarks” characterizing defense counsel as lying to the jury. It was
held harmless because, in context, it was a comment “the jurors [would have] viewed ...
as mere reciprocal retort in an effort to rehabilitate the integrity of the maligned law
enforcement officer and [given] it little to no consideration.” (Id., at 1193.) Finally, the

82
court relied on the instruction that argument was not evidence. (Id.)
Given the repeated theme of defense counsel having a program to hide the truth
from the jurors through his machinations and “pay to say” conduct with the experts,
Young is a far cry from this case. The cursory final instruction “was no antidote for the
poison that had been injected into the minds of the jurors." (People v. Bentley (1955) 131
Cal.App.2d 687, 690, disapproved on another point in People v. White (1958) 50 Cal.2d
428, 431).)
Respondent’s claim that the evidence “overwhelmingly established that appellant
murdered Clarkson” (RB 140) has been fully rebutted in Arguments I and II, supra. As
was said long ago,
It is a well-known fact that intemperate and inflammatory
language coming from the lips of a high officer of the county
claims an attention from the ordinary juror which, if similarly
given voice by the defense, it does not receive. When it is
considered that what was said by the district attorney was
apparently with the sanction and approval of the judge of the
trial court, the prejudicial effect on the substantial rights of
the defendant becomes apparent.

(People v. Pantages (1931) 212 Cal. 237, 245.)

CONCLUSION

In this case, where the scientific evidence raised reasonable doubts as to


defendant’s guilt, other means were advanced to persuade the jury: the unprecedented
use of the trial judge as a witness for the prosecution on a central point in the case; the use
of inflammatory evidence of uncharged conduct, much of it decades old, which was
improperly argued as pure propensity evidence; and the castigation of appellant’s counsel
for purportedly having bought expert witnesses to make up “ridiculous testimony” in
order to hide the truth.
It is too much the habit of prosecuting officers to assume

83
beforehand that a defendant is guilty, and then expect to have
the established rules of evidence twisted, and all the features
of a fair trial distorted, in order to secure a conviction. If a
defendant cannot be fairly convicted, he should not be
convicted at all; and to hold otherwise would be to provide
ways and means for the conviction of the innocent.

(People v. Wells (1893) 100 Cal. 459, 465.)


Appellant was not fairly convicted. Reversal is required.

Dated: December 9, 2010 Respectfully submitted,


DENNIS P. RIORDAN
DONALD M. HORGAN
RIORDAN & HORGAN

CHARLES SEVILLA

By:
DENNIS P. RIORDAN

Attorneys for Appellant


PHILLIP SPECTOR

84
CERTIFICATE OF COMPLIANCE

I, Dennis P. Riordan, hereby certify that the attached brief is proportionately

spaced, has a typeface of 13 points, and contains 28,987 words.

Dated: December 9, 2010

_____________________
Dennis P. Riordan
PROOF OF SERVICE BY MAIL -- 1013(a), 2015.5 C.C.P.

I am a citizen of the United States; my business address is 523 Octavia Street, San
Francisco, California 94102. I am employed in the City and County of San Francisco,
where this mailing occurs; I am over the age of eighteen years and not a party to the
within cause. I served the within:

APPELLANT’S REPLY BRIEF


on the following person(s) on the date set forth below, by placing a true copy thereof
enclosed in a sealed envelope with postage thereon fully prepaid, in the United States
Post Office mail box at San Francisco, California, addressed as follows:

Lawrence Daniels Clerk of the Superior Court


Deputy Attorney General County of Los Angeles
300 South Spring Street, Suite 1702 210 W. Temple Street
Los Angeles, CA 90013 Los Angeles, CA 90012

Alan Jackson Phillip Spector #G63408


Truc T. Do E-4-126L
Deputy District Attorneys California Substance Abuse
210 W. Temple Street, Room 18-709 Treatment Facility
Los Angeles, CA 90012 P.O. Box 5242
Corcoran, CA 93212

[x] BY MAIL: By depositing said envelope, with postage thereon fully prepaid, in the
United States mail in San Francisco, California, addressed to said party(ies); and
[ ] BY PERSONAL SERVICE: By causing said envelope to be personally served on
said party(ies), as follows: [ ] FEDEX [ ] HAND DELIVERY [ ] BY FAX
I certify or declare under penalty of perjury that the foregoing is true and correct.

Executed on December 9, 2010 in Francisco, California.

___________________________
Jocilene Yue

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