Petition for Writ of Certiorari — Joseph Andrew Perez, Petitioner v. California

Supreme Court briefJul 18, 2018

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No._____(Capital Case)

In the

Supreme Court of the United States

__________________________________________________

JOSEPH ANDREW PEREZ, JR.,

Petitioner,

-vTHE STATE OF CALIFORNIA

Respondent.

_______________________________________

On Petition for Writ of Certiorari to the

Supreme Court of the State of California

_______________________________________

APPENDICES

_______________________________________

A. Richard Ellis, Atty. at Law

75 Magee Ave.

Mill Valley, CA 94941

TEL.: (415) 389-6771

FAX: (415) 389-0251

E-mail: a.r.ellis@att.net

Member, Supreme Court Bar

Counsel of Record for Petitioner

Index of Appendices

Appendix A: People v. Perez, 4 Cal.5th 421, 411 P.3d 490, 229 Cal.Rptr.3d 303 (2018)

(originally filed Mar. 1, 2018; as modified on denial of rehearing May 16, 2018).

Appendix B: People v. Perez, No. S 104144, (order modifying opinion and denying petition

for rehearing and remittitur), May 16, 2018.

Appendix C: Contra Costa County Coroner’s Office, Autopsy Report (Mar. 26, 1998).

APPENDIX A

People v. Perez, 4 Cal.5th 421 (2018)

411 P.3d 490, 229 Cal.Rptr.3d 303, 18 Cal. Daily Op. Serv. 1991...

4 Cal.5th 421

Supreme Court of California

The PEOPLE, Plaintiff and Respondent,

Joseph Andrew PEREZ, Jr.,

Defendant and Appellant.

S104144

Filed 3/1/2018

As Modified on Denial of Rehearing 5/16/2018

Synopsis

Background: Defendant was convicted in the Superior

Court, Contra Costa County, No. 990453-3, Peter L.

Spinetta, J., of murder, residential robbery, residential

burglary, and vehicle theft, and was sentenced to death for

murder count, as well as six years for burglary, four years

for robbery, and two years for vehicle theft. Appeal to the

Supreme Court was automatic.

[8] death sentence did not violate any Eighth Amendment

requirement of proportionate sentencing.

Affirmed.

**498 ***312 Contra Costa County Super. Ct. No.

990453-3, Judge: Peter L. Spinetta

Attorneys and Law Firms

A. Richard Ellis, under appointment by the Supreme

Court, for Defendant and Appellant.

Kamala D. Harris and Xavier Becerra, Attorneys

General, Dane R. Gillette and Gerald A. Engler,

Chief Assistant Attorneys General, Ronald S. Matthias,

Assistant Attorney General, Alice B. Lustre, Glenn R.

Pruden and John H. Deist, Deputy Attorneys General, for

Plaintiff and Respondent.

Opinion

CUÉLLAR, J.

Holdings: The Supreme Court, Cuéllar, J., held that:

[1] ongoing connection between trial counsel and trial

judge related to prior case did not demonstrate that

counsel had conflict of interest;

[2] trial judge's comments at accomplice's trial about

strength of prosecution's evidence did not suggest

improper bias against defendant;

[3] demonstrable reality showed that sitting juror was

unable to perform his duty as a juror, and thus court did

not abuse its discretion in removing juror;

[4] prosecutor did not commit reversible misconduct;

[5] accomplice testimony was sufficiently corroborated;

[6] any error in admitting hearsay testimony regarding

victim's autopsy was harmless;

[7] victim impact evidence from victim's daughters did not

render proceeding fundamentally unfair or invite a purely

irrational response; and

*427 In November 2001, Joseph Andrew Perez, Jr., was

sentenced to death for killing Janet Daher during a March

1998 robbery at *428 Daher's home. This is Perez's

automatic appeal. Perez alleges several defects both at his

jury trial and in California's administration of the death

penalty. We affirm the judgment.

On March 24, 1998, Janet Daher was found dead in

her home in Lafayette, California. An indictment filed in

Contra Costa County Superior Court on March 24, 1999,

charged Perez along with Lee Snyder and Maury O'Brien

of four crimes related to Mrs. Daher's death: murder,

residential robbery, residential burglary, and vehicle theft.

The indictment charged special circumstances for the

murder count under Penal Code section 190.2, subdivision

(a)(17), alleging that Mrs. Daher was killed during the

commission of a robbery and burglary. 1 The three cases

were severed, and Snyder, who was 17 at the time of the

crimes, was tried first. (See People v. Snyder (2003) 112

Cal.App.4th 1200, 1206, 1216, 5 Cal.Rptr.3d 711.) He was

convicted of all four charges and sentenced to life in prison

People v. Perez, 4 Cal.5th 421 (2018)

411 P.3d 490, 229 Cal.Rptr.3d 303, 18 Cal. Daily Op. Serv. 1991...

without the possibility of parole, plus six years. (Ibid.) Jury

selection for Perez's trial started on September 12, 2001,

and testimony began on September 24. O'Brien had not

been tried when Perez's trial began.

All subsequent unlabeled statutory references are to

the Penal Code.

The trial's first witnesses described how the victim's body

was discovered. The victim's husband, Joe Daher, testified

that he left home for his daughter Lauren's softball game

around 2:00 p.m. on the day of Mrs. Daher's death. Mrs.

Daher was home at the time, and Mr. Daher left the

garage door open. According to Mr. Daher's testimony,

he answered a phone call from his other daughter Annie

on his way home from the game. Annie had come home

from school to find her mother missing and the contents

of her mother's purse strewn on the floor. Annie did not go

upstairs to the master bedroom, and she eventually called

law enforcement. The dispatcher told her that officers had

found her mother's vehicle and that officers were **499

on their ***313 way to the house. Two officers arrived

and one went upstairs. He testified that he found Mrs.

Daher's body on the floor of the master bedroom with

a phone cord tied “very tightly around her hands” “up

to her neck, around her neck.” Mr. Daher later helped

officers identify the property that was missing from the

house, including his wife's sport utility vehicle (SUV) and

several thousands of dollars' worth of jewelry.

Law enforcement officers soon began recovering some

of the stolen property and identifying suspects. Multiple

witnesses told officers that they saw three men near the

Daher home on the afternoon of the murder. One of these

witnesses testified that he drove within 25 feet of the men

and then *429 identified Perez in court. Another witness

identified Perez in a photo lineup. Asked in court if Perez

was who he saw and identified, the witness testified that

he “can't be exact, but yes, he looks a lot like him.” Mrs.

Daher's SUV was discovered in the yard of a roofing

company in Cordelia, a small town near Fairfield. An

employee of the roofing company testified that he found

the SUV “up against the fence like somebody was trying

to hide it.” A detective also testified that he had found

records showing that Maury O'Brien checked into the

Overnighter Motel (less than a half mile from where the

SUV was found) on March 24, 1998. The owner of the

motel later testified that O'Brien had registered at the

motel at 3:31 p.m. on March 24.

Officers tracked O'Brien down about a month and a half

after the murder, after the Contra Costa County Sheriff

received a tip. The tip eventually led officers to Lacy

Harpe, O'Brien's former girlfriend, who told the officers

that O'Brien may have been involved with the crime. At

first O'Brien denied his involvement in the crime, but the

officers told him they had evidence against him. O'Brien

then quickly admitted that he was involved in the crime,

though he insisted that he did not personally harm Mrs.

Daher. O'Brien testified against Perez at trial, describing

how the men came to break into the Daher home and

kill Mrs. Daher. He testified that he and Lee Snyder were

plotting to rob a drug dealer and discussed the plan with

their friend Jason Hart, who introduced the two to Perez.

O'Brien told jurors that he met with Perez every day in

the two or three days before the murder. O'Brien was

not planning for the robbery of the drug dealer to take

place on March 24, but Perez “showed up unexpectedly”

that morning so the men agreed to do it that day. They

arranged to meet the drug dealer in Fairfield and decided

to take the Bay Area Rapid Transit (BART).

According to the testimony, the men boarded BART at

the Balboa Park station in San Francisco. They planned

to get off in either Pleasant Hill or Walnut Creek, but

their plans changed. Instead the men debarked the train

at the Orinda station to smoke cigarettes. O'Brien testified

that Snyder and Perez “were looking out into the hills

over there between Orinda and Lafayette” and decided

that they “wanted to rob a house instead of going up

to Fairfield.” The men walked a short distance to some

nearby large houses, and began searching for “whatever

one would be easiest to break into.” O'Brien was carrying

a knife, Snyder had a handgun, and Perez was unarmed.

The group saw a house with its garage door open. The

three went inside, and Perez closed the garage door. They

saw Mrs. Daher as soon as they entered the house. O'Brien

testified that Perez “put his hand over her mouth and

hit her on the head, and she went down to the floor.”

O'Brien then “held the gun on her” as “[Snyder] went ...

through the downstairs rooms and [Perez] went through

the upstairs rooms.” Mrs. Daher told O'Brien that her

daughter “was coming home in 15 minutes,” so O'Brien

***314 “yelled out to [Perez] and [Snyder] that we had 15

minutes to get in and out.” O'Brien may *430 have used

their names when he yelled this, and Perez responded that

O'Brien “would have to kill the victim” since he “spoke up

and messed it all up.”

People v. Perez, 4 Cal.5th 421 (2018)

411 P.3d 490, 229 Cal.Rptr.3d 303, 18 Cal. Daily Op. Serv. 1991...

O'Brien also testified that Mrs. Daher “was very

cooperative” throughout the robbery. Snyder and Perez

took Mrs. Daher upstairs. O'Brien testified that he heard

noises from upstairs, so he went up to the master bedroom,

where he saw Snyder “pulling out a telephone cord” and

Perez “on the other side of the bed” “maybe holding the

victim down.” He later saw “Perez on top of the victim”

**500 with “the telephone cord wrapped around [her].”

Perez “was pulling really hard on the telephone cord” and

Mrs. Daher's “neck was twisted back.” O'Brien testified

that Perez told him “to go get a knife from the kitchen,”

so O'Brien handed over the knife that was in his pocket.

Mrs. Daher was “lying motionless face down by her bed”

as Perez walked over and stabbed her “many times” with

the knife “[a]ll over her body and her head and neck area.”

Perez later handed O'Brien his knife back.

The men found Mrs. Daher's SUV in the garage with the

keys inside. Perez drove. The men drove toward Fairfield

but then abandoned the vehicle and checked into the

Overnighter Motel in Cordelia, where they split the stolen

property. O'Brien cleaned the knife in the bathroom and

later threw it in some bushes. They then went to the home

of an acquaintance named Justin Mabra, where they did

cocaine with Mabra and his girlfriend Megan McPhee.

Soon their friend Jason Hart (the one who had introduced

O'Brien and Snyder to Perez) picked the three of them up

in his car. In the car with Hart was Deshawn Dawson.

Hart drove the men to Snyder's home in San Francisco.

Mabra, McPhee, Dawson, and Hart all testified

against Perez as well, corroborating several aspects of

O'Brien's narrative. Mabra testified that he and McPhee

encountered Perez, O'Brien, and Snyder in Fairfield in

late March 1998, around the time of the murder. Mabra

did not know Perez from before but identified him both

at a live lineup and in court. McPhee also identified

Perez both in a live lineup and in court. Dawson testified

that he was in the car when Hart drove the men to San

Francisco. Dawson told jurors that the three were “talking

and bragging” about “stealing and robbing and whatnot.”

Hart began his testimony by telling jurors that he had

been granted immunity from prosecution. He testified that

O'Brien and Snyder had told him about their plan to rob

a drug dealer, and Perez wanted to join because “he was

broke and he needed some money.” Perez later told him

that “they robbed a lady” and strangled her to death with

a phone cord. Hart drove the three men to Snyder's home,

where they showed Hart the jewelry they had stolen. Hart

was especially interested in buying a large diamond ring

that *431 Snyder was carrying, but Snyder wanted a

thousand dollars for it. Hart ended up paying $200 for a

diamond ring from Perez. When officers arrested Snyder,

they found him carrying a gold necklace and several rings

that the Daher family identified as belonging to them.

The same day, officers searched Snyder's home and found

property from the Daher home, including more jewelry

and a mobile phone.

The prosecution also called two witnesses to describe Mrs.

Daher's autopsy. The first was Steven Ojena, a criminalist

who worked at the Contra Costa County Sheriff's crime

laboratory. During the autopsy, Ojena could see the

telephone cord “stretched tightly around her neck” and

“wrapped around her wrists,” “binding her ***315

hands behind her back.” He also testified that Mrs. Daher

had “ligature marks, that is, impression marks on her

neck,” and he took photographs of the body during the

autopsy. Next was Brian Peterson, a forensic pathologist

who worked for a private company in Fairfield that had a

contract with Contra Costa County to perform autopsies.

Another pathologist from the company had performed

Mrs. Daher's autopsy, but she had since left the company.

Peterson described the autopsy findings and testified to his

opinion about the cause of death.

The defense only called two witnesses in the guilt phase.

First, Lacy Harpe, O'Brien's former girlfriend, testified

that O'Brien had spoken to her about the murder before

he was arrested. O'Brien had given her some jewelry, and

she explained that he told her at some point that “him and

[Snyder] and this other guy went ... inside this lady's garage

that was open and into the house and killed her for her car

and $20 and broke her neck.” Second, Ken Whitlatch (one

of the two officers who came to the Daher home and met

Annie) testified that he interviewed one of the eyewitnesses

who had seen the three men walking in the neighborhood.

The parties then stipulated that the eyewitness drew for

Officer Whitlatch a picture of the tattoo he saw on the

right side of Perez's neck.

**501 The jury found Perez guilty on all four charged

counts. The penalty phase began a week later. The

prosecution presented evidence of several uncharged prior

crimes: a 1992 mugging, a rape of a minor from 1992 or

1993, an assault from 1994, and some violent incidents

from when Perez was incarcerated. The prosecution also

People v. Perez, 4 Cal.5th 421 (2018)

411 P.3d 490, 229 Cal.Rptr.3d 303, 18 Cal. Daily Op. Serv. 1991...

called Mrs. Daher's two daughters, who described how

Mrs. Daher's death had impacted their lives. The defense's

penalty-phase case consisted of rebuttal testimony about

the uncharged prior crimes, as well as mitigating evidence

from over a dozen witnesses who had known Perez at

different times in his life. The witnesses chronicled how

Perez's teenaged parents abused and neglected him, as

well as how Perez had from a young age been surrounded

by drugs and violent crime. His parents sold and used

drugs in front of him. Perez's father would sometimes blow

marijuana *432 smoke into Perez's face when he was

a baby, and he was taught how to smoke a marijuana

joint when he was a toddler. Perez attended four different

schools from kindergarten through first grade, and his

numerous absences from school forced him to repeat the

first grade. As a teenager, Perez served as a lookout while

his father committed burglaries and other crimes, often

stealing money to buy drugs. When Perez was nine, his

mother was living with a man who sold drugs from his

home. Perez spent a night at the house when two armed

men broke in, demanding money and drugs. The men tied

up Perez and his mother, threatening to shoot Perez in the

head.

Perez later experienced more stability living with his

grandmother, but she died of a stroke when Perez was

12. Perez soon began committing crimes and went in

and out of foster care, youth homes, and work camps

before he was committed at age 14 to the California

Youth Authority (CYA). Perez was one of the youngest

wards in the CYA system at the time. The defense

presented testimony from an expert on juvenile detention

facilities, who described violence, abuse, and chaos in

CYA facilities during this period. The jury also heard

from a psychologist who characterized Perez's childhood

as “remarkably unstable” and “overwhelmed with chaos,

violence, and loss.” She explained that “dissocial behavior

was the norm” in Perez's family. The state's rebuttal

evidence consisted ***316 of new testimony on the

uncharged prior crimes.

The jury returned a verdict of death on November

16, 2001. After defense counsel moved to modify the

sentence, the trial court ruled that the aggravating factors

outweighed the mitigating ones and the defendant had

shown “no sense of wrongdoing or remorse.” The court

sentenced Perez to death for the murder count, as well

as six years for burglary, four years for robbery, and two

years for vehicle theft.

II.

A. Pretrial issues

1. Counsel's conflict of interest

Perez claims his lead attorney, William Egan, Jr., faced a

conflict of interest because Egan had a few years earlier

represented a client named Yvonne Eldridge in a criminal

trial before Perez's trial judge, Judge Peter Spinetta. Judge

Spinetta ruled in the Eldridge case that Egan rendered

ineffective assistance of counsel to Eldridge. Perez's case

was assigned to Judge Spinetta on November 5, 1999.

An appeal of Judge Spinetta's ineffectiveness ruling in

Eldridge's case was pending in the Court of Appeal

at that time. Then, several months before Perez's trial

began, the Court of Appeal remanded *433 Eldridge's

case for further factual findings. Judge Spinetta held an

evidentiary hearing and then ruled again that Egan had

been ineffective at Eldridge's trial. The appeal of this

ruling was pending throughout Perez's trial. If the Court

of Appeal upheld Judge Spinetta's ruling, the judge may

have had to file a report with the state bar detailing

Egan's conduct in Eldridge's case. (See Bus. & Prof. Code,

§ 6086.7, subd. (a)(2).) Perez argues that this ongoing

connection between Egan and Judge Spinetta established

a conflict of interest because Egan's “overriding concern

would have been in controlling and limiting the damage

already done to his relationship with the trial judge, not in

vigorously defending his client.”

**502 a) Background

The same day that Perez's case was assigned to Judge

Spinetta, on November 5, 1999, the judge met with Egan

to discuss the case. This meeting was transcribed into

the trial record, though Perez was not present. Counsel

for codefendant Lee Snyder was not present either, nor

was any prosecutor present. Egan and Judge Spinetta

discussed whether the assignment of the case to the

judge was appropriate in light of the judge's ruling that

Egan had been ineffective at Yvonne Eldridge's trial.

Egan shared that he found out about Judge Spinetta's

ruling in Eldridge's case after a reporter called him. Egan

also said that the “whole thing is definitely the worst

thing that's ever happened to me in my career.” Judge

Spinetta expressed sympathy and told Egan that the

pending appeal in Eldridge's case would have “absolutely

no impact” on his attitude toward Egan at Perez's trial.

People v. Perez, 4 Cal.5th 421 (2018)

411 P.3d 490, 229 Cal.Rptr.3d 303, 18 Cal. Daily Op. Serv. 1991...

Throughout the conversation, Egan repeatedly stated that

he preferred for Perez to be tried before Judge Spinetta.

He explained that “the whole reason” he wanted to meet

with the judge to discuss the issue at this early stage is

that he did not want the case transferred to another judge.

Egan explained that his “objective is to end up being

comfortable trying the case in this court.” He added: “I

want to be in this court and I want to clear the air on it.”

The judge suggested that Egan discuss the issue with his

client. Egan implied he would and then reiterated: “[M]y

desire, whether or not it has any bearing or anything,

is to have the case stay here.” The judge concluded by

observing ***317 that “we need the client and the D.A.

here,” lest someone in the future alleges that the case

“shouldn't have proceeded in that department, given the

situation that Mr. Egan and Judge Spinetta were in at that

time because of the Eldridge conflict.”

A few days later, on November 10, 1999, Judge Spinetta

met again with Egan, this time with counsel for codefendant Snyder also present (the trials had not yet been

severed). Perez was not present at this meeting, nor was

any prosecutor. Judge Spinetta observed that if the Court

of Appeal upheld his *434 determination that Egan was

ineffective at Eldridge's trial then “I may have to report

it, and there may be an investigation in the matter.” The

judge reiterated though that this possibility would not

affect his attitude toward Perez's trial. He also observed

that he was not putting Egan “in any conflict situation”

because “the only thing that [Egan] could do to impress

me in connection with [Perez's trial] would be the sort of

thing that's consistent with the interest of your clients.

And that is effective representation of your current client.”

Egan responded that he did not think he had been placed

“in a conflict situation.” The transcript does not appear

to indicate if Judge Spinetta ever asked Egan if he had

discussed the issue with Perez since the last meeting, and

Egan did not say anything about this question on the

record.

Judge Spinetta referred throughout this second meeting

to the possibility of Egan or Perez filing a Code of Civil

Procedure section 170.6 motion against the judge. Section

170.6 provides that “[a] judge ... shall not try a civil or

criminal action ... when it is established as provided in this

section that the judge ... is prejudiced against a party or

attorney or the interest of a party or attorney appearing

in the action or proceeding.” (Code Civ. Proc., § 170.6,

subd. (a)(1).) Prejudice for purposes of section 170.6 is

established by a motion supported by an “affidavit or

declaration under penalty of perjury, or an oral statement

under oath” that the assigned judge “is prejudiced against

a party or attorney ... so that the party or attorney cannot,

or believes that he or she cannot, have a fair and impartial

trial or hearing before the judge.” (Id., subd. (a)(2).) So

long as the “motion is duly presented, and the affidavit

or declaration under penalty of perjury is duly filed or an

oral statement under oath is duly made, thereupon and

without any further act or proof,” section 170.6 requires

for a different judge to be assigned. (Id., subd. (a)(4).)

Judge Spinetta made several references to Code of Civil

Procedure section 170.6 throughout his second meeting

with Egan. The judge began the meeting by noting that

the “first” issue that needed to be discussed “is really

a nonissue, and that is whether **503 [Perez] should

exercise a 170.6 in this matter, for any reason.” He

explained that the question of whether Perez or Egan

should file a section 170.6 motion was “of course, for you

and your client to decide” and “I don't really get involved

in that one way or another.” The judge then turned the

conversation to whether his potential obligations with

regards to the Eldridge case created a conflict of interest.

But some time later, the judge again brought up section

170.6, suggesting that the discussion the two men had

been having about the potential conflict “is separate from

the 170.6.” Egan responded, “Right.” The judge then

reiterated at length that he did not want to discuss the

topic of section 170.6: “I don't really want to comment

too much about the 170.6, other than to say that's clearly

simply for you and your client to decide, or you and

your client, for that matter, for other reasons. And I

really should not talk about that. Because, quite frankly,

I don't want any ***318 appearance that I'm addressing

those matters. Those are not *435 proper matters, I

don't think, for counsel and court to talk about. Those

are things for you guys to decide. You have a statutory

right, and judges understand that. There's a right to do

those things, and there's no problem one way or the other,

insofar as anybody's concerned—so far as I'm concerned.”

In April 2000—five months after Perez's case was

assigned to Judge Spinetta and long before Perez's

trial began in September 2001—the Court of Appeal

issued an unpublished opinion reversing Judge Spinetta's

ineffective assistance ruling and remanding the case

for new factual findings. Judge Spinetta then held an

People v. Perez, 4 Cal.5th 421 (2018)

411 P.3d 490, 229 Cal.Rptr.3d 303, 18 Cal. Daily Op. Serv. 1991...

evidentiary hearing in September 2000. Egan testified

at the hearing, explaining the choices he made while

representing Eldridge. In December 2000, Judge Spinetta

again ruled that Egan had been ineffective in representing

Eldridge. The judge characterized Egan's choices in the

case as “disastrous” and explained that Egan left the

“case seriously wanting of any evidence likely to move the

jurors.” The People appealed again. The Court of Appeal

did not rule the second time around until September 2002,

nearly a year after Perez's trial was completed. This time,

the court affirmed Judge Spinetta's judgment in full.

different choices as well as whether counsel's choices were

the product of tactical reasons rather than the alleged

conflict of interest. (See ibid. [“ ‘[W]here a conflict of

interest causes **504 an attorney not to do something,

the record may not reflect such an omission. We must

therefore examine the record to determine (i) whether

arguments or actions omitted would likely have been

made by counsel who did not have a conflict of interest,

and ***319 (ii) whether there may have been a tactical

reason (other than the asserted conflict of interest) that

might have caused any such omission.’ [Citations.]”].)

[5] In his opening brief, Perez contends that Egan's

b) Analysis

loyalty was divided between Perez's interests and Egan's

[1] [2] [3] [4] Both the United States Constitution andpersonal interest in currying favor with Judge Spinetta.

the California Constitution guarantee criminal defendants

Specifically, Perez argues that because “Mr. Egan was

the right to the assistance of counsel unburdened by any

‘intending to retire’ after this trial, his overriding concern

conflicts of interest. (See People v. Doolin (2009) 45 Cal.4th

would have been to go out with a clear record.” To

390, 417, 87 Cal.Rptr.3d 209, 198 P.3d 11 (Doolin).)

accomplish this task, Perez asserts that Egan “would

Essentially, a claim of conflict of interest constitutes a

be unlikely to do anything at appellant's trial which

form of ineffective assistance of counsel. (Ibid.; People v.

could cause Judge Spinetta to cast him in an unfavorable

Mai (2013) 57 Cal.4th 986, 1009-1010, 161 Cal.Rptr.3d

light with regard to the state bar.” Perez also argues

1, 305 P.3d 1175 [“[A] claim of conflicted representation

that “Egan's overriding concern would have been in

is one variety of claim that counsel provided ineffective

controlling and limiting the damage already done to

assistance.”]; Doolin, at p. 419, 87 Cal.Rptr.3d 209,

his relationship with the trial judge, not in vigorously

198 P.3d 11 [“Under our state Constitution, the right

defending his client.”

to counsel includes the correlative right to conflict-free

representation.”].) In order to demonstrate a violation of

Although Perez identifies these purported conflicts of

the federal and state constitutions based on a conflict of

interest in his opening brief, Perez fails to specify how

interest, a defendant must show that his or her counsel

Egan's divided loyalties affected the defense. Perez's reply

was burdened by an “actual” conflict of interest—one that

brief then adds a list of specific actions he claims Egan

in fact adversely affected counsel's performance. (Doolin,

would have taken if Egan was not burdened by a

at p. 421, 87 Cal.Rptr.3d 209, 198 P.3d 11 [“[T]he high

conflict of interest. What none of the examples establish

court's analysis of Sixth Amendment conflict of interest

is that Egan was burdened by an actual conflict of

claims has evolved into one of ineffective assistance of

interest that adversely affected Perez's defense. Perez first

counsel, which requires a defendant to show counsel's

points to ways in which Egan could have presented a

deficient performance and a reasonable probability that

stronger guilt phase case. He observes that Egan “called

but for counsel's deficiencies, the result of the proceeding

only two witnesses” during the guilt phase and “made

would have been different.”].) When determining whether

little effort to discredit [prosecution witnesses] or point

counsel's performance was “adversely affected” by the

out numerous inconsistencies in their testimony.” Perez

purported conflict under this standard, we consider

presents no explanation for how the purported conflict—

whether “ ‘counsel “pulled his punches,” i.e., whether

Egan's supposed desire to prove that he did not deserve

counsel failed to represent defendant as vigorously as he

state bar discipline for providing ineffective assistance to

might have, had there been no conflict.’ ” (Id. at p. 418,

another client—could possibly motivate Egan to provide

87 Cal.Rptr.3d 209, 198 P.3d 11.) This analysis will often

weaker assistance of counsel to Perez. If anything, that

turn on *436 choices that a lawyer could have made,

desire might have motivated Egan to provide Perez more

but did not make. In order to determine whether those

effective counsel. Because the record contains nothing that

choices resulted from the alleged conflict of interest, we

links Egan's choices to the alleged conflict, Perez has not

must analyze the record to determine whether a lawyer

established “that the conflict of interest adversely affected

who did not face the same conflict would have made

People v. Perez, 4 Cal.5th 421 (2018)

411 P.3d 490, 229 Cal.Rptr.3d 303, 18 Cal. Daily Op. Serv. 1991...

his counsel's performance.” (Mickens v. Taylor (2002) 535

U.S. 162, 174, 122 S.Ct. 1237, 152 L.Ed.2d 291.) Perez

may end up introducing new evidence in post-conviction

proceedings that link Egan's choices to the alleged conflict

of interest. But on the record before us at this time, we

have no basis to “conclude that the only explanation for

counsel's *437 failure to” call additional witnesses and

discredit the prosecution's evidence more vigorously “is

the asserted conflict of interest.” (Doolin, supra, 45 Cal.4th

at p. 423, 87 Cal.Rptr.3d 209, 198 P.3d 11.)

Although some of Egan's choices in the case may

at least arguably appear consistent with the goal of

remaining in the judge's good graces, alternative—and

legally permissible—rationales are also consistent with

Egan's behavior. Even if we assume Egan faced incentives

to alter his behavior to remain in the judge's good

graces, the question remains whether such incentives

created a conflict of interest that adversely affected

counsel's performance. To answer that question, we

must “ ‘examine the record to determine (i) whether

arguments or actions omitted would likely have been

made by counsel who did not have a conflict of interest,

and (ii) whether there may have been a tactical reason

(other than the asserted conflict of interest) that might

have caused any such omission.’ [Citation.]” (Doolin,

supra, 45 Cal.4th at p. 418, 87 Cal.Rptr.3d 209, 198

P.3d 11.) The record before us at this time does not

establish that any of Egan's choices were attributable to a

conflict of interest. Nothing in the trial record addresses

whether a different attorney would ***320 have made

other choices or whether tactical considerations informed

Egan's decisions. For example, for Egan's failure to

file a Code of Civil Procedure section 170.6 motion,

the record at this time does not even contain evidence

establishing that either Egan or Perez “believe[d]” that

Perez would not “have a fair and impartial trial ... before

the judge” as would have been required for the affidavit

supporting the motion. (Code Civ. Proc., § 170.6, subd.

(a)(2).) Because “[t]he record **505 does not show that

a different strategy would likely have been adopted by

competent, unconflicted counsel,” “it fails to demonstrate

either conflict-driven adverse performance, or ineffective

assistance, on counsel's part.” (People v. Mai, supra, 57

Cal.4th at p. 1014, 161 Cal.Rptr.3d 1, 305 P.3d 1175; see

also People v. Gonzales and Soliz (2011) 52 Cal.4th 254,

310, 128 Cal.Rptr.3d 417, 256 P.3d 543 [rejecting claims

that a purported conflict of interest caused counsel to

perform adversely because the “contentions reflect pure

speculation, unsupported by anything in the record”].)

Perez fails to establish that any “conflict of interest

adversely affected his counsel's performance,” thus his

claim must be denied. (Mickens v. Taylor, supra, 535 U.S.

at p. 174, 122 S.Ct. 1237.)

2. Perez's absence during discussions on Egan's conflict

of interest

[6] [7] [8] [9] Perez argues that the trial court violated

his federal and state constitutional right to be present at

judicial proceedings critical to the outcome of his case,

because Perez was absent at the November 5, 1999, and

November 10, 1999, discussions about Egan's supposed

conflict of interest, discussed in detail in the prior section.

A criminal defendant has the right under the Sixth

Amendment and the due process clause to be “ ‘present

at any stage of the *438 criminal proceedings “that is

critical to its outcome if his presence would contribute

to the fairness of the procedure.” ’ ” (People v. Perry

(2006) 38 Cal.4th 302, 311, 42 Cal.Rptr.3d 30, 132 P.3d

235 (Perry).) Our state Constitution similarly provides a

“ ‘right to be personally present at critical proceedings.’

” (Ibid.) In contrast, a defendant has no right to be

present at discussions on questions of law outside the

jury's presence or at proceedings where the defendant's

presence does not have a “ ‘ “ ‘reasonably substantial

relation to the fullness of his opportunity to defend against

the charge.’ ” ' [Citations.]” (People v. Bradford (1997)

15 Cal.4th 1229, 1357, 65 Cal.Rptr.2d 145, 939 P.2d 259

(Bradford).) Although the exclusion of the defendant from

a critical proceeding constitutes error, it is not structural

error. (People v. Mendoza (2016) 62 Cal.4th 856, 901,

198 Cal.Rptr.3d 445, 365 P.3d 297 [“The high court

has never suggested that a defendant's improper absence

from any critical stage of the proceedings constitutes

structural error requiring reversal without regard to

prejudice.”].) Instead, we evaluate federal constitutional

error for harmlessness under the Chapman beyond a

reasonable doubt standard, and state law error under

the Watson reasonably probable standard. (Id. at pp.

901-902, 198 Cal.Rptr.3d 445, 365 P.3d 297; Chapman

v. California (1967) 386 U.S. 18, 24, 87 S.Ct. 824, 17

L.Ed.2d 705 [requiring error to be harmless beyond a

reasonable doubt]; People v. Watson (1956) 46 Cal.2d

818, 836, 299 P.2d 243 [finding prejudice unless it is

“reasonably probable that a result more favorable to the

appealing party would have been reached in the absence

of the error”]; see also Perry, at p. 312, 42 Cal.Rptr.3d 30,

People v. Perez, 4 Cal.5th 421 (2018)

411 P.3d 490, 229 Cal.Rptr.3d 303, 18 Cal. Daily Op. Serv. 1991...

132 P.3d 235; Bradford, at p. 1357, 65 Cal.Rptr.2d 145,

939 P.2d 259.)

purported lost chance to seek to remove his attorney does

not constitute prejudice.

Perez contends that the November 5 and November 10

discussions were critical stages of the proceedings—and

that Perez's presence would have contributed to ***321

the fairness of those proceedings. We have previously

acknowledged that a criminal defendant “may be entitled

to be present at a conference called to consider whether

to remove his counsel for conflict of interest or any

other reason.” (Perry, supra, 38 Cal.4th at p. 313, 42

Cal.Rptr.3d 30, 132 P.3d 235.) Nonetheless, we need

not resolve whether Perez's absence here constituted a

violation of his constitutional right to be present because

any such error was harmless beyond a reasonable doubt.

Perez also contends that if he had been present at the

November 5 and November 10 discussions, he might

have “exercise[d] a peremptory challenge” under Code

of Civil Procedure section 170.6. Section 170.6 allows a

defendant to bring a motion—supported by an affidavit

or declaration—alleging that the assigned judge “is

prejudiced against a party or attorney” such that the

party or attorney “cannot, or believes that he or she

cannot, have a fair and impartial trial or hearing before

the judge.” (Code Civ. Proc., § 170.6, subd. (a)(1), (2).)

So long as the requirements for filing such a motion are

followed, section 170.6 requires a different judge to be

assigned in lieu of the originally assigned one. (Id., subd.

(a)(4).) According to Perez, had he been present at the

November 5 and November 10 discussions, he would have

learned of the conflict of interest issue and might have

filed a section 170.6 motion. But irrespective of Perez's

presence at the proceedings, Egan was under an obligation

to raise these issues with Perez. (See Rules Prof. Conduct,

rule 3-500 [“A member shall keep a client reasonably

informed about significant developments relating to the

employment or representation.”]; ABA Model Rules Prof.

Conduct, rule 1.4(b) [“A lawyer shall explain a matter

to the extent reasonably necessary to permit the client to

make informed decisions regarding the representation.”].)

Indeed, Judge Spinetta urged ***322 Egan to consult

with Perez multiple times about whether Perez wished

to file a section 170.6 motion. During the discussion on

November 10, for example, Judge Spinetta stated the

following: “I don't really want to comment too much

about the 170.6.... Those are not proper matters, I don't

think, for counsel and court to talk about. Those are

things for you guys to decide.” Perez argues in his

supplemental briefing that “there is nothing in the record

to indicate appellant was made aware of defense counsel's

concern over the fairness of Judge Spinetta or Judge

Spinetta's concern over counsel's potential conflict.”

Nonetheless, just because the limited record on a direct

appeal was devoid of such information does not mean that

Perez lacked *440 knowledge of the alleged conflict of

interest. And even if Perez had been present, we do not

know whether he would have filed a section 170.6 motion.

What Perez argues is that he suffered prejudice because his

presence at the November 5 and November 10 discussions

would have enabled him to seek removal of either his

attorney because of a conflict of interest, or Judge Spinetta

by making a motion under Code of Civil Procedure

section 170.6. Yet no prejudice arises from Perez's alleged

lost opportunity to remove his attorney. A review of the

circumstances associated with the proceeding in Perez's

case shows why. During the discussions on the conflict

of interest issue, Judge Spinetta clearly stated that he was

not putting Egan “in any conflict situation” because “the

only thing that **506 [Egan] could do to impress me

in connection with [Perez's trial] would be the sort of

thing that's consistent with the interest of your clients.

And that is effective representation of your *439 current

client.” Moreover, approximately one year later, Perez

brought a motion under People v. Marsden (1970) 2

Cal.3d 118, 84 Cal.Rptr. 156, 465 P.2d 44 to remove his

counsel. That motion raised Judge Spinetta's prior finding

that Egan provided ineffective assistance of counsel in

the Eldridge case. But Judge Spinetta found no conflict

of interest and stated that “there was nothing [in the

Marsden proceedings] that made it appear to the court that

Mr. Egan might be in some conflict of interest situation

warranting the appointment of another counsel to address

issues of ineffective assistance of counsel.” From this

record, we can glean that even if Perez had been present at

the November 5 and November 10 discussions and sought

to remove his counsel based on a conflict of interest, the

trial court would have denied such a motion. We hold

above that Perez fails to demonstrate that his counsel

had an actual conflict of interest. Accordingly, Perez's

Indeed, even now Perez only states it is “reasonably

possible that he would have insisted that Judge Spinetta

be recused”—and does not state that he would have filed

People v. Perez, 4 Cal.5th 421 (2018)

411 P.3d 490, 229 Cal.Rptr.3d 303, 18 Cal. Daily Op. Serv. 1991...

a Code of Civil Procedure section 170.6 motion. Because

the discussion between the trial court and Egan resulted

in the conclusion that no conflict of interest existed, it

is unclear why Perez would have developed a sufficient

belief of Judge Spinetta's prejudice to file a section 170.6

motion. Indeed, such a motion requires a sworn statement,

under penalty of perjury, that Perez believed the judge to

be prejudiced. So we have no basis to conclude that Perez

suffered prejudice in this direct appeal. (Cf. People v. Davis

(2005) 36 Cal.4th 510, 533, 31 Cal.Rptr.3d 96, 115 P.3d

417 [holding lack of presence harmless where counsel had

“ample opportunity to discuss” the defendant's thoughts

before a hearing and that “there is no way on this record

to determine, had defendant been **507 present at the

hearing,” what information the defendant would have

provided].)

Nor are we persuaded Perez suffered prejudice because he

lost the opportunity to replace Judge Spinetta. (See People

v. Lee (2002) 95 Cal.App.4th 772, 780, 115 Cal.Rptr.2d

828 [“[D]efendant cannot show prejudice.... He has not

shown the loss of his [Code of Civil Procedure section]

170.6 motion deprived him of a defense nor has he

submitted even one example of prejudicial treatment

by [the presiding judge].”]; In re James H. (1981) 121

Cal.App.3d 268, 273, 175 Cal.Rptr. 141 [“His defense

was one of alibi, and it was fully presented by himself,

his mother and stepfather.... Under the circumstances

of this case, the failure to properly invoke the Code

of Civil Procedure section 170.6 challenge was not

prejudicial....”].) Perez does not point to any action or

decision by Judge Spinetta that shows prejudice, or that

shows that the outcome would have changed if some other

judge had presided over the proceedings. (See Bradford,

supra, 15 Cal.4th at p. 1358, 65 Cal.Rptr.2d 145, 939 P.2d

259 [“[D]efendant has failed to explain how his attendance

during the testimony of these witnesses would have altered

the outcome of his trial....”].) And as detailed below, we

reject Perez's contentions that Judge Spinetta was biased.

Accordingly, if any constitutional error resulted from

Perez's absence from the November 5 and November 10

discussions, it was harmless beyond a reasonable doubt.

3. Trial judge's disqualification

[10] Later during pretrial proceedings, Perez moved to

disqualify Judge Spinetta under Code of Civil Procedure

section 170.1 based on statements the judge made at

co-defendant Lee Snyder's trial. The motion was denied

by a separate judge assigned to adjudicate it. Perez

claims this was an error. Several *441 months before

Perez's trial began, Snyder was found guilty ***323

at a jury trial before Judge Spinetta. In March 2001,

about six months prior to the start of Perez's trial, Judge

Spinetta denied Snyder's motion for a new trial. While

announcing that ruling, the judge made several statements

about the strength of the prosecution's evidence. Some

of this same evidence would later be used against Perez

too. Judge Spinetta first stated that he was “persuaded”

that “Mr. O'Brien was telling the truth in all material

regards.” He also said that the evidence to support the

verdict was “substantial.” Later, when sentencing Snyder,

Judge Spinetta characterized the murder as “senseless,”

“vicious,” “heinous,” “done with premeditation,” “cold,”

“callous,” “perpetuated by what [were] clearly indifferent

murderers,” and “horrendous.” The judge further stated

that “the evidence strongly points to the fact that Mrs.

Daher was dead at the time she was stabbed.”

Within weeks of Snyder's sentencing, Perez filed a motion

to disqualify Judge Spinetta. Attached to the motion

were newspaper stories about Snyder's sentencing hearing.

One story reported that “Spinetta disagreed” with the

Snyder family's claims of innocence, “saying the evidence

supported a conviction.” The story also referred to Judge

Spinetta saying that “O'Brien told the truth about the

material facts.” Another story observed that the judge

“[b]rush[ed] aside a claim of innocence.” Perez's motion to

disqualify was assigned to a separate judge. Judge Spinetta

filed a written response explaining that the “import”

of his remarks was that he found O'Brien's testimony

“at the Snyder trial to be credible, in the light of the

cross-examination, and the evidence presented, there.”

Judge Spinetta also said he did “not consider [him]self

precluded in any way from coming to a different judgment

if warranted by the evidence at the Perez trial.”

This court long ago explained that a trial judge may hear a

case even if he or she has expressed an adverse impression

of a party that was “based upon actual observance of

the witnesses and the evidence given during the trial of

an action.” (Kreling v. Superior Court (1944) 25 Cal.2d

305, 312, 153 P.2d 734; see also ibid. [“[W]hen the state

of mind of the trial judge appears to be adverse to one

of the parties but is based upon actual observance of

the witnesses and the evidence given during the trial of

an action, it does not amount to that prejudice against

a litigant which disqualifies him....”]; In re Richard W.

(1979) 91 Cal.App.3d 960, 968, 155 Cal.Rptr. 11 [“A

People v. Perez, 4 Cal.5th 421 (2018)

411 P.3d 490, 229 Cal.Rptr.3d 303, 18 Cal. Daily Op. Serv. 1991...

judge is not disqualified to try a **508 case merely

because he previously, in a separate proceeding, heard

a case of a coparticipant or passed on the application

of a codefendant for probation. [Citations.]”].) Though a

judge in certain circumstances may develop an excessive

or improper bias against a defendant because of evidence

about the defendant presented in another case, Judge

Spinetta's comments at Snyder's trial suggest no such bias.

The judge simply stated that he found the live testimony

and other evidence against Snyder to be sufficiently

persuasive. Not once did the judge *442 refer to any

evidence or information beyond what those trial witnesses

elucidated through their testimony. Nor did the judge's

comments go beyond the two narrow questions he was

tasked with answering: whether the evidence was sufficient

to establish guilt and what penalty suited the crime.

While there may have been some risk that the jurors at

Perez's trial would have read media reports about Judge

Spinetta's assessment of the evidence at Snyder's trial, the

proper way to alleviate this concern was via jury selection,

not disqualification of the judge. Perez has not proven

that Judge Spinetta's comments at Snyder's trial ***324

served to disqualify him from presiding over Perez's trial.

4. September 11

[11] Jury selection in Perez's trial began one day after

the September 11 terrorist attacks. He claims that the

“intense pro-government patriotic fervor generated by

this traumatic event meant that the defense was operating

under a tremendous disadvantage both in attempting

to discredit the State's case for appellant's guilt and in

opposing the State's request for the death penalty.” Yet

Perez offers no examples of how the September 11 attacks

biased jurors, and his trial did not raise any issues that

resembled any issues related to the attacks. Other courts

have rejected similarly generalized claims about prejudice

from the September 11 terrorist attacks. (See, e.g., U.S. v.

Templeton (8th Cir. 2004) 378 F.3d 845, 848, fn. 2; U.S.

v. Capelton (1st Cir. 2003) 350 F.3d 231, 236-237; U.S. v.

Merlino (D.Mass. 2002) 204 F.Supp.2d 83, 89-90, affd. in

part & revd. in part on other grounds (1st Cir.) 592 F.3d

22.) Moreover, though Perez argues that his trial “should

have been continued,” the record does not indicate that

he asked for a continuance. Perez fails to establish that

his trial's timing improperly biased his jurors or otherwise

violated his constitutional rights.

B. Jury selection claims

1. Restrictions on voir dire

[12] Perez contends that “the trial court's jury selection

system did not allow adequate time for voir dire of the

prospective jurors.” The trial court had denied defense

counsel's request to sequester potential jurors from each

other for a portion of voir dire. The trial court also

restricted each side's questioning of potential jurors to

a half-hour per panel of 25 jurors. Perez argues that

these restrictions prevented his lawyers from asking

potential jurors about discrepancies between their written

questionnaires and live answers. He also argues that

potential jurors may have become “less inclined to rely

upon their [ ] impartial attitudes about the death penalty”

after they saw others get dismissed for stating opposition

to the death penalty, as well as that jurors *443 might

“mimic responses that appear to please the court.” Perez

also points to instances where potential jurors heard

details about the case from fellow panelists, such as when

one potential juror said she wanted the defendants “killed

like they killed her.” Another panelist said he would

“adamantly press for the death penalty” based on what he

learned about the case from media reports.

[13] We have long recognized that “the enormity of the

jury's decision to take or spare a life” requires trial judges

to “be especially vigilant to safeguard the neutrality,

diversity and integrity of the jury.” (Hovey v. Superior

Court (1980) 28 Cal.3d 1, 81, 168 Cal.Rptr. 128, 616

P.2d 1301.) At the same time, “in reviewing a trial

court's denial of a defendant's motion for individual

sequestered jury selection, we apply the ‘abuse of

discretion standard,’ under which the pertinent inquiry

is whether the court's ruling ‘falls outside the bounds

of reason.’ [Citation.]” (People v. Famalaro (2011) 52

Cal.4th 1, 34, 127 Cal.Rptr.3d 40, 253 P.3d 1185.) In

Famalaro, prospective jurors had commented **509 in

front of their peers that the “defendant should ‘fry,’ and

that they felt uncomfortable looking at, and breathing

the same air as, [him].” (Ibid.) Other jurors revealed

that they “had prejudged defendant's guilt and believed

he should be executed.” (Id. at p. 35, 127 Cal.Rptr.3d

40, 253 P.3d 1185.) Yet we found no error or prejudice

in the trial judge's decisions to allow group voir dire,

explaining that “[i]ndividual sequestered jury selection is

not constitutionally required, ***325 and jury selection

is to take place ‘where practicable ... in the presence of the

other jurors in all criminal cases, including death penalty

cases.’ ” (Id. at p. 34, 127 Cal.Rptr.3d 40, 253 P.3d 1185,

quoting Code Civ. Proc., § 223.) In Perez's case, as in

People v. Perez, 4 Cal.5th 421 (2018)

411 P.3d 490, 229 Cal.Rptr.3d 303, 18 Cal. Daily Op. Serv. 1991...

Famalaro, the trial court acted within its discretion when

it chose to allow group voir dire despite statements from

some jurors that they had views on the case. We likewise

conclude that the trial court's decision did not amount to

constitutional error.

[14] As for Perez's argument that the trial court gave

counsel too little time to question each juror, neither

the state nor federal Constitution requires individualized

voir dire questioning by attorneys. (See People v. Avila

(2006) 38 Cal.4th 491, 533-536, 43 Cal.Rptr.3d 1, 133

P.3d 1076; see also Morgan v. Illinois (1992) 504 U.S.

719, 729-730, 112 S.Ct. 2222, 119 L.Ed.2d 492.) As for

statutory requirements, the Legislature has established

only that “counsel for each party shall have the right

to examine, by oral and direct questioning, any or

all of the prospective jurors” after “completion of the

court's initial examination.” (Code Civ. Proc., former

§ 223.) 2 Former section 223 also says that the trial

court “may, in the exercise of its discretion, limit *444

the oral and direct questioning of prospective jurors,”

including by “specify[ing] the maximum amount of time

that counsel for each party may question an individual

juror” or by “specify[ing] an aggregate amount of time

for each party.” (Ibid.) We have further recognized that

trial judges have “a duty to restrict voir dire within

reasonable bounds to expedite the trial.” (Avila, at p. 536,

43 Cal.Rptr.3d 1, 133 P.3d 1076.) Given this framework,

Perez has not established that the trial judge's choice to

limit counsel to 30 minutes per panel (in addition to 30page written questionnaires and a preliminary round of

questioning by the judge) was an abuse of discretion in

these circumstances. Nor has Perez established that the

time allotted for voir dire violated his constitutional rights.

Former Code of Civil Procedure section 223 was

repealed by Stats. 2017, c. 302 in September 2017, and

the new section 223 became effective as of January

1, 2018. (See Code Civ. Proc., § 223.) We refer to

former section 223 because it was the requirement

in effect at the time of the voir dire for Perez's trial.

Even if we were to apply the new section 223, the

result would not change because setting “reasonable

limits” to attorney voir dire is still “in the judge's

sound discretion.” (Id., subd. (b)(1).)

2. Trial judge's voir dire questions

[15] Perez claims that “the trial judge endorsed the

inconsistent comments of a prospective juror” who

had indicated on his written questionnaire that he was

not willing to consider “psychological, psychiatric, or

other mental health testimony regarding a defendant

in determining the appropriate sentence at the penalty

phase.” The prospective juror also wrote that he did not

“care for a history lesson” and “crime=punishment,” and

he answered “maybe” in response to a question of whether

“it would be hard ... not to require the defense to prove

the defendant is innocent.” In his oral questioning, this

prospective juror stated that he “could follow the law.”

He again indicated that he found “problematic” that a

defendant did not need to present evidence of innocence,

but he said he could “live with” the rule. At the end of

the oral questioning, the judge thanked the potential juror

for his honesty and told him “[i]t would have been very

easy for you to give answers that would automatically

disqualify [you].” Defense counsel objected, explaining

that “I'm supposed to be attacking this guy after the

court has congratulated him.” The judge responded, “I

didn't affirm his answer. I simply said that I felt that

he answered truthfully.” Perez claims that the judge's

comments “had the prejudicial effect of sanctioning this

prospective juror's improper comments.” He argues that

this ***326 violation was a structural error because it

suggests “a biased tribunal.” We disagree. The judge's

comments here simply commended the juror's honesty.

While trial judges should take care to avoid suggesting

that any particular **510 answer to a voir dire question

is favorable, the judge's comments to this juror did not

endorse the substance of the juror's answers or otherwise

suggest any preference for the juror's views.

[16] Perez also alleges that the trial judge was more

aggressive in instructing potential jurors who Perez

contends “would otherwise have been subject to

challenges for cause by the defense.” Perez argues

that these “interventions on behalf of pro-death jurors

were designed to have them change their otherwiseobjectionable answers” and he claims that the judge

failed to act impartially by instructing these jurors in

this way. We have explained that the “occasional use of

leading questions when attempting to rehabilitate ‘deathleaning’ jurors” does not “suggest a lack of impartiality.” (

*445 People v. Mills 2010) 48 Cal.4th 158, 190, 106

Cal.Rptr.3d 153, 226 P.3d 276; see also ibid. [“We assume

the trial court formulated its questions based on the

individual characteristics of each juror, including the

juror's questionnaire answers and in-court demeanor. To

second-guess these choices would encourage the trial

People v. Perez, 4 Cal.5th 421 (2018)

411 P.3d 490, 229 Cal.Rptr.3d 303, 18 Cal. Daily Op. Serv. 1991...

court to engage in substantially the same questioning

of all prospective jurors irrespective of their individual

circumstance, something we have declined to do.”].) As in

Mills, Perez has not established that the trial judge acted

improperly in his questioning of these jurors.

3. Failure to dismiss jurors

[17] Perez claims that some of the prospective and actual

jurors should have been either dismissed, excluded, or

disqualified. But defense counsel did not attempt to

strike any of these jurors, either for cause or by using

a peremptory challenge. In fact, defense counsel used

only 10 of the available 20 peremptory strikes and never

expressed dissatisfaction with the composition of the

jury. We thus “agree with the Attorney General that

defendant, having chosen not to challenge [a juror] for

cause or peremptorily, and having neither exhausted his

peremptory challenges nor expressed dissatisfaction with

the jury, cannot raise on appeal the trial court's failure to

excuse [such a juror.]” (People v. Taylor (2009) 47 Cal.4th

850, 883-884, 102 Cal.Rptr.3d 852, 220 P.3d 872.)

4. Removed juror

[18] Perez claims that his rights to due process of law and

to trial by jury were violated when the trial judge dismissed

a seated juror during the guilt phase proceedings. Just

before opening statements, the judge informed counsel

that a juror (Juror No. 7) approached him and “indicated

that he wanted to discuss with me his level of comfort

with sitting on a death penalty case and suggesting that

—that he may have some difficulty in that regard.” The

judge told the juror that the issue would be addressed after

the judge spoke to counsel. The jury was then brought in,

both sides gave opening statements, and several witnesses

testified. At the end of that day, the judge asked the

juror at issue to stay behind when the jury was excused.

The juror told counsel that the past week had given him

“time and reason to reflect further on myself, on the death

penalty” and though he wrote on his jury questionnaire

that he had no moral, religious, or philosophical qualms

with imposing the death penalty, he “no longer” thought

he was “capable of making that decision myself.” The

juror later confirmed that his “state of mind was such that

no ***327 matter what the aggravating circumstance is

and no matter what the mitigating circumstance evidence

is,” he “could not ever” vote for the death penalty. After a

discussion with counsel, the judge dismissed the juror over

Perez's objection.

[19] [20] [21] *446 Although the trial court's decision

to discharge a sitting juror is reviewed for abuse of

discretion, the trial court's factual basis for doing so

is reviewed under the “demonstrable reality” standard.

(See People v. Zamudio (2008) 43 Cal.4th 327, 349,

75 Cal.Rptr.3d 289, 181 P.3d 105; see also People v.

Lomax (2010) 49 Cal.4th 530, 589-91, 112 Cal.Rptr.3d

96, 234 P.3d 377 (Lomax).) A trial court may discharge

a sitting juror if the court finds the juror is unable to

perform his or her duty. (See Lomax, at p. 589, 112

Cal.Rptr.3d 96, 234 P.3d 377; § 1089 [“If at any time,

whether before or after the final submission of the case

to the jury, a juror dies or becomes ill, or upon other

good cause **511 shown to the court is found to be

unable to perform his or her duty, ... the court may

order the juror to be discharged and draw the name of

an alternate....”].) This “demonstrable reality” standard

requires a less deferential, more searching review of the

factual predicate for discharging a juror than what is

entailed by the substantial evidence standard. (Lomax, at

p. 589, 112 Cal.Rptr.3d 96, 234 P.3d 377.) Crucially, in

order to uphold the trial court's determination, we must

conclude “ ‘that the court as trier of fact did rely on

evidence that, in light of the entire record, supports its

conclusion that bias was established.’ [Citation.]” (Ibid.;

see also id. at p. 590, 112 Cal.Rptr.3d 96, 234 P.3d 377

[“The inquiry is whether ‘the trial court's conclusion is

manifestly supported by evidence on which the court

actually relied.’ [Citation.]”].)

[22] Perez claims the record in his case does not show

“a demonstrable reality” that the juror at issue here was

unable to perform his duty as a juror, since the judge

determined only that the juror could not impose the death

penalty. But “ ‘[a] juror may be disqualified for bias, and

thus discharged, from a capital case if his views on capital

punishment “would ‘prevent or substantially impair the

performance of his duties as a juror in accordance with

his instructions and his oath.’ ” [Citations.]' ” (Lomax,

supra, 49 Cal.4th at p. 589, 112 Cal.Rptr.3d 96, 234 P.3d

377, quoting People v. Keenan (1988) 46 Cal.3d 478, 532,

250 Cal.Rptr. 550, 758 P.2d 1081.) The instructions in

this case required jurors to decide whether the aggravating

circumstances outweighed the mitigating circumstances

and then determine whether death was an appropriate

punishment. Juror No. 7 had confirmed that he “could

not ever” vote for the death penalty, “no matter what

the aggravating circumstance is and no matter what the

People v. Perez, 4 Cal.5th 421 (2018)

411 P.3d 490, 229 Cal.Rptr.3d 303, 18 Cal. Daily Op. Serv. 1991...

mitigating circumstance evidence is.” Perez concedes that

refusal to impose the death penalty is a valid basis to

strike a prospective juror, but he argues that this hesitance

is an improper basis to strike a juror after the trial has

begun. Section 1089 does not invite a different standard

for dismissing prospective jurors versus seated ones. To

the contrary, it says a juror may be discharged “at any

time, whether before or after the final submission of the

case to the jury” if “found to be unable to perform his or

her duty.” (§ 1089, italics added.) Given this juror's clear

indication that he would not be able to perform his duty

of choosing whether a death sentence was appropriate, the

trial judge had an adequate basis to dismiss the juror for

good cause.

*447 Perez claims in the alternative that the juror should

have at least been kept on through the end of the guilt

phase, since the juror's inability to vote for the death

penalty would not affect his duties until ***328 the

penalty phase. Yet Perez points to no cases requiring a

trial judge to keep a dismissible juror on for part of the

trial in this way. Instead, he cites three cases from our

court addressing whether there was a sufficient basis for

a trial judge to conclude that a juror would be unable to

perform his or her duty. (See People v. Pearson (2012) 53

Cal.4th 306, 327-333, 135 Cal.Rptr.3d 262, 266 P.3d 966;

People v. Allen and Johnson (2011) 53 Cal.4th 60, 69-79,

133 Cal.Rptr.3d 548, 264 P.3d 336; People v. Wilson (2008)

44 Cal.4th 758, 813-821, 80 Cal.Rptr.3d 211, 187 P.3d

1041.) By contrast, in this case we have already accepted

the soundness of the judge's conclusion that the juror

would be unable to perform his duty during the penalty

phase of the trial. The remaining question is whether the

judge should have allowed the juror to participate in a

portion of the trial despite the juror's inability to perform

that duty.

Perez also points to Jennings v. State (Fla. 1987) 512 So.2d

169, a case in which a juror revealed during the guilt phase

of a capital trial that “she had not been completely candid

about her feelings concerning the death penalty.” (Id.

at p. 172.) In particular, the juror revealed that though

“she still could render an impartial verdict in the guilt

phase, she could not recommend a death sentence.” (Ibid.)

Neither defense counsel nor the prosecution asked for

this juror to be removed during the guilt phase, and the

trial court allowed the juror to remain through the end

of the guilt phase and then dismissed her after the guilt

phase ended. On appeal, the defendant claimed that the

juror should have been kept for the entire trial, past the

guilt phase. That claim is distinct from Perez's **512

claim that a juror should have been kept on for the guilt

phase alone. We have already explained why Juror No. 7

should not have been kept through the penalty phase in

this case. The Jennings court took the same view, rejecting

the defendant's claim. As for Perez's argument that the

juror here should have been kept during the guilt phase,

the Florida Supreme Court said nothing about whether

the trial court was required to keep the juror for part of

the trial in this way.

[23] [24] In California, a judge has discretion to remove

a juror for only part of trial, as the trial court did in

Jennings. But section 1089 does not distinguish between

different portions of a trial or otherwise suggest that a

trial court is required to keep a juror for part of a trial if

the juror's inability to perform his or her duty is limited

to a different phase of the trial. Instead, the statute says

a trial court “may order [a] juror to be discharged” if a

juror “is found to be unable to perform his or her duty.” (§

1089.) This interpretation of section 1089 finds support

in our preference for unitary juries. (See People v. Fields

(1983) 35 Cal.3d 329, 351-352, 197 Cal.Rptr. 803, 673

P.2d 680.) The trial court may exercise its section 1089

discretion to remove a juror in the early *448 stages of

a trial as a means to “assure—insofar as possible—that

the decision-making process of a death penalty case is a

coherent whole.” (Id. at p. 352, 197 Cal.Rptr. 803, 673

P.2d 680.) With a unitary jury, the decision maker will

be more likely to have “full recognition of the gravity of

its responsibility throughout both phases of the trial” and

knowledge “of lingering doubts that may have survived

the guilt phase deliberations.” (Ibid.) Even if an alternate

replaces a juror who opposes the death penalty at the start

of the penalty phase, that alternate will not have fully

engaged in the deliberative process and so would not fully

satisfy the concerns we described in Fields. (See id. at p.

351, 197 Cal.Rptr. 803, 673 P.2d 680; People v. Valles

(1979) 24 Cal.3d 121, 124-128, 154 Cal.Rptr. 543, 593 P.2d

240 [holding that an alternate ***329 juror may sit in the

jury deliberation room so long as the alternate juror does

not take part in or affect the deliberations].) As a result,

we hold that section 1089 allows a trial court to remove

a juror before the conclusion of the guilt phase if the

juror cannot fulfill his or her responsibilities in the penalty

phase. Here, the trial record contains evidence sufficient

to satisfy the demonstrable reality standard that the juror

would be unable to perform his duty to decide whether a

People v. Perez, 4 Cal.5th 421 (2018)

411 P.3d 490, 229 Cal.Rptr.3d 303, 18 Cal. Daily Op. Serv. 1991...

death sentence was due because the juror confirmed that

he would never be able to vote for a sentence of death.

Accordingly, the trial court did not abuse its discretion

when it chose to remove the juror for the entire remainder

of the trial on that basis.

5. Lower-income jurors

[25] Perez claims that the trial court's refusal to provide

higher compensation for lower income jurors deprived

him of a jury of his peers. We have rejected similar claims

in the past. (See, e.g., People v. DeSantis (1992) 2 Cal.4th

1198, 1216, 9 Cal.Rptr.2d 628, 831 P.2d 1210.) We do the

same here.

C. Prosecutorial misconduct

1. Late disclosure of aggravation evidence

[26] The prosecution's penalty-phase case included

evidence that Perez had raped a girl who was under age 14

when Perez was aged 18 or 19. On March 1, 2001, over six

months before the start of jury selection, the prosecutor

wrote to defense counsel about his intention to present

evidence about this uncharged rape. A few months later,

at a hearing on July 27, 2001, the prosecutor named a

San Francisco Police Department (SFPD) detective that

the prosecutor planned to talk to about the incident.

The prosecution filed its formal notice of aggravation on

August 16, 2001. On the same date, the prosecution told

defense counsel that the SFPD's file on the uncharged rape

appeared to be missing. Jury selection began on September

12, 2001. Then, in October 2001, near the end of the guilt

phase, a prosecutor turned over portions of a police report

related to the incident. The prosecutor apologized *449

for handing the documents over late but claimed he had

not received them earlier. Perez contends the prosecution

purposely delayed in turning over the police reports and

filing a formal notice of aggravation.

[27]

**513 Perez claims that the prosecution's delays

violated his rights under section 190.3, which bars

prosecutors in first degree murder cases from presenting

penalty-phase aggravating evidence “unless notice of the

evidence to be introduced has been given to the defendant

within a reasonable period of time as determined by the

court.” (§ 190.3.) One purpose of this statute is assigning

to trial courts discretion for deciding how much time

is enough adequate notice, though we have generally

required that notice be provided “before the case is

called.” (People v. Roberts (1992) 2 Cal.4th 271, 330,

6 Cal.Rptr.2d 276, 826 P.2d 274 [“Section 190.3's plain

language gives the court discretion to determine what

amount of notice is reasonable, but the evidence must be

given to a defendant before the case is called.”]; see also

People v. Jurado (2006) 38 Cal.4th 72, 136, 41 Cal.Rptr.3d

319, 131 P.3d 400 [“Notice provided before jury selection

begins is generally considered timely, and the purpose

of the notice provision is satisfied if the defendant has

a reasonable chance to defend against the charge.”].)

More than six months before jury selection began, the

prosecution gave defense counsel informal notice. The

prosecutor then conveyed the name of the SFPD detective

three months before jury selection began. The prosecutor

***330 filed a formal notice of aggravation on August

16, 2001, almost a month before jury selection began on

September 12, 2001. In these circumstances, the trial court

did not abuse its discretion in ruling that the prosecution

gave Perez “notice of the evidence to be introduced ...

within a reasonable period of time.” (§ 190.3; Jurado, at p.

136, 41 Cal.Rptr.3d 319, 131 P.3d 400.)

[28]

[29] Perez further claims this purposeful delay

violated the People's federal constitutional obligation to

disclose exculpatory evidence under Brady v. Maryland

(1963) 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215,

along with the analogous requirement of the California

Constitution. Under both Brady and the California

Constitution, the prosecution is only required to disclose

evidence that “ ‘helps the defense or hurts the prosecution,

as by impeaching a prosecution witness.’ ” (People v.

Verdugo (2010) 50 Cal.4th 263, 279, 113 Cal.Rptr.3d

803, 236 P.3d 1035.) Perez claims that the police report

about the rape incident constitutes Brady material, but

does not claim that it is exculpatory on its own. Rather,

Perez argues that it would be useful for impeachment

and voir dire purposes. The police report stated that a

female victim reported that Perez had sexually assaulted

her three times with at least one instance of vaginal rape.

The statements in the police report were consistent with

the notice of aggravation, which referred to the alleged

incidents of rape. Moreover, the police report ultimately

proved unhelpful to Perez because it was consistent with

the victim's testimony that he had sexually assaulted and

raped her multiple times. As Perez presents no proof

*450 the prosecution failed to disclose evidence that in

any way “helps the defense or hurts the prosecution,”

he has not established a violation of his rights under

People v. Perez, 4 Cal.5th 421 (2018)

411 P.3d 490, 229 Cal.Rptr.3d 303, 18 Cal. Daily Op. Serv. 1991...

[33]

[34] Perez next claims the prosecutor improperly

vouched for a witness's credibility during the guilt-phase

closing argument by saying, “But you think Jason Hart

is going to tell the cops that he gave three guys a ride

2. Other prosecutorial misconduct

from what amounted to a murder if he didn't do it? Well,

Perez lists five other allegations of prosecutorial

we know he didn't do it, so *451 he's not going to

misconduct, advancing brief arguments supporting each.

do that.” As with the first claim, Perez failed to object

Because we find unpersuasive each of these claims for the

to this statement or request a limiting instruction, and

reasons discussed below, we also reject Perez's argument

thus the claim is forfeited. (See People v. Redd, supra,

that the cumulative “effect of these individual instances of

48 Cal.4th at p. 746, 108 Cal.Rptr.3d 192, 229 P.3d

prosecutorial misconduct” requires reversal.

101 [requiring objection and request for admonition to

preserve prosecutorial misconduct claim].) Even if not

[30]

[31]

[32] Perez first contends the prosecution forfeited, these statements were not improper: they were

elicited irrelevant victim impact testimony of the victim's

based on Hart's testimony, rather than the prosecutor's

husband and daughter during the guilt phase. The

independent knowledge or beliefs. (See People v. Frye

Attorney General argues that defendant forfeited this

(1998) 18 Cal.4th 894, 971, 77 Cal.Rptr.2d 25, 959 P.2d

argument because Perez failed to object to this testimony

183 [“[S]o long as a prosecutor's assurances regarding the

at trial. To avoid forfeiture of a claim of prosecutorial

apparent honesty or reliability of prosecution witnesses

misconduct, a defendant must object and request an

are based on the ‘facts of [the] record and the inferences

admonition. (People v. Redd (2010) 48 Cal.4th 691, 746,

reasonably drawn therefrom, rather than any purported

108 Cal.Rptr.3d 192, 229 P.3d 101 [ “[A] defendant must

personal knowledge or belief,’ her comments cannot be

object and request an admonition in order to preserve

characterized as improper vouching.”], disapproved on

a claim of prosecutorial misconduct, and the objection

other grounds in Doolin, supra, 45 Cal.4th at p. 421, fn. 22,

must be made upon the same ground as that which the

87 Cal.Rptr.3d 209, 198 P.3d 11.)

defendant assigns as error on appeal.”].) Perez failed to do

so on this claim and thus the claim is forfeited. Even if not

[35] Perez third claims that the prosecution asked

forfeited, the argument fails. The prosecution committed

improper or argumentative questions “designed to

misconduct, Perez argues, by asking the **514 victim's

discredit” penalty-phase witness Susan Frankel, an

husband how long he had known his wife and by

attorney who knew Perez through a mentorship

presenting testimony from the victim's daughter—who,

program for California Youth Authority parolees. Perez's

Perez asserts, “did not witness anything, did not add

objections to those questions were sustained and defense

anything to the State's case for guilt, and did not view

counsel did not request any further jury instruction

the body.” The testimony of both the victim's husband

about them. Even assuming the prosecutor's statements

and daughter was relevant to the prosecution's guilt-phase

were improper, Perez fails to demonstrate prejudice. (See

case because it helped narrate the circumstances of Mrs.

People v. Riggs (2008) 44 Cal.4th 248, 298, 79 Cal.Rptr.3d

Daher's murder. The daughter's testimony established the

648, 187 P.3d 363 [“Under California law, a prosecutor

timing of when the men allegedly broke into the home, and

commits reversible misconduct if he or she makes use

the husband's comments ***331 about his relationship to

of ‘deceptive or reprehensible methods' when attempting

his wife helped frame his observations about her routines.

to persuade either the trial court or the jury, and it

None of this testimony was improper. (See People v.

is reasonably probable that without such misconduct,

Salcido (2008) 44 Cal.4th 93, 151, 79 Cal.Rptr.3d 54, 186

an outcome more favorable to the defendant would

P.3d 437 [affirming verdict in capital case in which a

have resulted.”].) Although the prosecution's questions to

murder victim's wife's testimony during the guilt phase

Susan Frankel were potentially argumentative, the fact

that the victim recently changed his work schedule so she

that the judge sustained the objections to the questions

would not have to drive during her pregnancy was not

and that Susan Frankel's testimony played a small role in

improper because the testimony “scarcely touched upon

the penalty phase of trial demonstrates a lack of prejudice

the victim's family life and did not relate the effect of

arising from any asserted error.

defendant's acts upon family members”].)

either Brady or the analogous requirements of California's

Constitution.

People v. Perez, 4 Cal.5th 421 (2018)

411 P.3d 490, 229 Cal.Rptr.3d 303, 18 Cal. Daily Op. Serv. 1991...

[36] [37] Fourth, the prosecutor asked the jury to make

Perez “sit on death row until his appeals process is over”

during the prosecutor's penalty-phase closing argument.

Perez claims this statement suggested that his appeals

would succeed. Defense counsel did not object to the

reference to the appeals process but later moved for a

mistrial on account of that statement along with others.

Prosecutors must exercise great caution in making any

reference to the appeals process in a case, since an

emphasis on that process can serve to diminish a juror's

sense of responsibility about the profound task that every

criminal trial requires the jury to undertake. This concern

is especially acute ***332 in capital cases, where jurors

hold a person's life in their hands. Nonetheless, Perez

must demonstrate that the prosecutor's statements caused

prejudice. ( **515 People v. Riggs, supra, 44 Cal.4th at

p. 298, 79 Cal.Rptr.3d 648, 187 P.3d 363.) In this case, all

that the prosecutor told jurors about the appeals process

was that Perez would await the end of the appeals process

before his death sentence could be lawfully *452 carried

out. This reference in the closing statement of the penalty

phase of the trial was too slight and tangential to diminish

the jury's sense of responsibility about its task.

[38] Fifth, the prosecutor asserted during the penaltyphase closing argument that Perez never appeared to show

remorse. The prosecutor also mentioned that Perez and

the other suspects had seemed to “celebrate” by drinking

beer and doing cocaine at various times on the night of

the crime. Defense counsel again did not object but later

moved for a mistrial on account of that statement along

with others. We have repeatedly held that prosecutors may

comment on a defendant's lack of remorse in committing

a capital crime. (See, e.g., People v. Hawthorne (2009)

46 Cal.4th 67, 94, 92 Cal.Rptr.3d 330, 205 P.3d 245,

abrogated on other grounds in People v. McKinnon (2011)

52 Cal.4th 610, 130 Cal.Rptr.3d 590, 259 P.3d 1186.)

D. Accomplice testimony

[39] Perez claims that the testimony of Maury O'Brien

and Jason Hart was unlawful, first because it was

insufficiently corroborated and second because it was

made unreliable by promises that the prosecution made

to the witnesses. On the first point, Perez argues that the

testimony did not satisfy the requirements of section 1111,

which provides, “A conviction can not be had upon the

testimony of an accomplice unless it be corroborated by

such other evidence as shall tend to connect the defendant

with the commission of the offense; and the corroboration

is not sufficient if it merely shows the commission of the

offense or the circumstances thereof.” (§ 1111.) The term

“accomplice” is then defined as “one who is liable to

prosecution for the identical offense charged against the

defendant on trial in the cause in which the testimony of

the accomplice is given.” (Ibid.)

We have interpreted section 1111 to require “evidence

tending to connect defendant with the crimes ‘without

aid or assistance from the testimony of’ ” the accomplice.

(People v. Davis, supra, 36 Cal.4th at p. 543, 31

Cal.Rptr.3d 96, 115 P.3d 417, quoting People v. Perry

(1972) 7 Cal.3d 756, 769, 103 Cal.Rptr. 161, 499 P.2d

129.) We recently explained that evidence corroborating

accomplice testimony “ ‘need not independently establish

the identity of the victim's assailant’ [citation], nor

corroborate every fact to which the accomplice testifies

[citation], and ‘ “may be circumstantial or slight and

entitled to little consideration when standing alone.” ’

” (People v. Romero and Self (2015) 62 Cal.4th 1, 32,

191 Cal.Rptr.3d 855, 354 P.3d 983 (Romero and Self).)

But the evidence must nonetheless connect the defendant

to the crime itself, rather than simply connect the

accomplice to the crime. (See id. at p. 36, 191 Cal.Rptr.3d

855, 354 P.3d 983 [“[A]n accomplice's testimony is not

corroborated by the circumstance that the testimony

is consistent with the victim's description of the crime

or *453 physical evidence from the crime scene. Such

consistency and knowledge of the details of the crime

simply proves the accomplice was at the crime scene,

something the accomplice by definition admits. Rather,

under section 1111, the corroboration must connect the

***333 defendant to the crime independently of the

accomplice's testimony.”].)

O'Brien's testimony was corroborated by enough evidence

to satisfy section 1111's requirements. Eyewitnesses from

the neighborhood placed Perez and the two other men

near the scene of the crime during the timeframe when

Mrs. Daher was killed. A series of other witnesses then

testified that they met Perez and the two men immediately

after the killing, at which time the men tried to sell some

of the stolen property. The timeframe of the crime was

also confirmed by the evidence of when and where the

stolen SUV was abandoned, as well as when and where the

men checked into a motel near the site of the abandoned

vehicle. While this array of evidence did not “corroborate

every fact to which the accomplice testifie[d]” and could

perhaps be characterized as “circumstantial or slight and

People v. Perez, 4 Cal.5th 421 (2018)

411 P.3d 490, 229 Cal.Rptr.3d 303, 18 Cal. Daily Op. Serv. 1991...

entitled to little consideration when standing alone,” it

tends to connect Perez to much of the narrative established

by O'Brien's testimony. (See **516 Romero and Self,

supra, 62 Cal.4th at p. 32, 191 Cal.Rptr.3d 855, 354

P.3d 983.) As for Hart, the Attorney General claims

that section 1111 did not apply to his testimony to the

extent Hart was not “liable to prosecution for the identical

offense charged against the defendant on trial.” (§ 1111.)

We need not decide whether this conclusion is correct.

Even if section 1111's requirements apply to Hart's

testimony, what Hart said about Perez's commission of

the four charged offenses was sufficiently corroborated by

other evidence.

[40] Separate from his argument about corroboration,

Perez further argues the accomplice testimony was

unreliable because the accomplices were promised

immunity in exchange for their cooperation. Only Hart

appears to have been awarded immunity. As for O'Brien,

whose testimony dominates Perez's claim about the

accomplice testimony, he testified that he had not

received immunity of any kind. He also told jurors

that neither the police nor prosecutor had offered him

anything in exchange for his testimony. At any rate, we

have long “rejected the contention that the testimony

of an immunized accomplice necessarily is unreliable

and subject to exclusion.” (People v. Jenkins (2000) 22

Cal.4th 900, 1010, 95 Cal.Rptr.2d 377, 997 P.2d 1044.)

Perez claims that his “argument is that [the accomplice

testimony] was unreliable in this case” though he gives no

reason why the testimony at issue in this case was unique

in a way that its reliability was not assured through the

normal mechanisms (cross-examination, comparison with

other evidence, and the jury's assessment of a live witness's

credibility). The jurors at Perez's trial were even instructed

that, in evaluating the credibility of the witnesses, they

should consider any prior criminal conduct reflecting

adversely on credibility, along with whether the witnesses

were testifying under a grant of immunity. Each *454

witness told the jury about what they had been promised in

exchange for incriminating Perez, and the trial record does

not cast doubt on this testimony's truth. Perez presents no

basis to believe that either O'Brien or Hart were coerced

in a manner that jurors would have been unable to discern

when assessing their credibility.

E. Autopsy evidence

Mrs. Daher's autopsy was performed by a pathologist

named Susan Hogan, who worked for a private company

that had a contract with Contra Costa County to perform

autopsies. Hogan testified at Snyder's trial but had

moved out of the area by the time of Perez's trial, so

the prosecution presented testimony about the autopsy

from another pathologist from the same company named

Brian Peterson. The prosecution ***334 never proffered

evidence showing that Hogan was unavailable to testify.

(See Evid. Code, § 240, subd. (a).) Peterson had zero

involvement with Mrs. Daher's autopsy, and his entire

knowledge of the autopsy came from Hogan's report,

which was never admitted into evidence.

Peterson's testimony included a description of the signs

that Daher was strangled, including marks around her

neck, bleeding in the whites of her eyes, bleeding in the

muscles of her neck, and a furrow around her neck. He

testified that these “changes in the face [ ] implied that

that force had indeed contributed to this lady's death.”

Peterson also characterized the severity and cause of

various stab wounds. Peterson asserted, for example, that

for six different stab wounds “it's safe to say that ... the

knife was pushed in far enough so that the entire blade was

inside the body.” The prosecutor then showed Peterson

the knife that was in evidence, and Peterson testified that

“this knife is certainly consistent with every injury that

we saw here that was delivered by sharp force.” At times,

Peterson expressly relayed observations that Hogan had

recorded at the autopsy, saying things like “Dr. Hogan

estimated,” “she noted,” and “[her] findings included.”

Peterson also shared various reasons why he believed

“that the strangulation happened first” and that “the

major force in this case was ... the strangulation.” Though

Peterson believed “that relatively lethal to sub lethal force

had already been delivered before those stab wounds,” he

testified that he could “say unequivocally, based on the

blood inside the chest, that her heart was still beating at

the time those stab wounds were delivered.” Asked if “in

your opinion would the cause of death be a combination

of **517 ligature strangulation and stabbing,” Peterson

answered yes.

[41]

[42] Perez claims Peterson's testimony violated

the confrontation clause because it contained out-ofcourt, testimonial statements offered for their truth

—that is, testimonial hearsay statements—that Perez

had no opportunity *455 to confront. Years after

Perez's trial, Crawford v. Washington (2004) 541 U.S.

36, 124 S.Ct. 1354, 158 L.Ed.2d 177 established that

the confrontation clause bars the government from

People v. Perez, 4 Cal.5th 421 (2018)

411 P.3d 490, 229 Cal.Rptr.3d 303, 18 Cal. Daily Op. Serv. 1991...

introducing such testimonial hearsay statements unless (1)

there is a showing that the declarant is unavailable, and (2)

the defendant had a prior opportunity to cross-examine

the declarant. (Id. at pp. 53-54, 124 S.Ct. 1354; see also

Michigan v. Bryant (2011) 562 U.S. 344, 354, 131 S.Ct.

1143, 179 L.Ed.2d 93 [holding that “testimonial hearsay”

statements must be excluded unless the prosecution

satisfies Crawford 's requirements], quoting Davis v.

Washington (2006), 547 U.S. 813, 826, 126 S.Ct. 2266,

165 L.Ed.2d 224.) 3 Here, the prosecution has not shown

unavailability or prior opportunity for cross-examination,

so the confrontation clause would bar the parts of

Peterson's testimony that constitute testimonial hearsay.

A statement is testimonial hearsay only if it is (1) hearsay

under a traditional hearsay inquiry and (2) testimonial

within the meaning of Crawford and its progeny. (People

v. Sanchez (2016) 63 Cal.4th 665, 680, 204 Cal.Rptr.3d

102, 374 P.3d 320 (Sanchez) [“The first step is a traditional

hearsay inquiry.... If a hearsay statement is being offered

by the prosecution in a criminal case, and the Crawford

limitations of unavailability, as well as cross-examination

or forfeiture, are ***335 not satisfied, a second analytical

step is required. Admission of such a statement violates

the right to confrontation if the statement is testimonial

hearsay, as the high court defines that term.”].)

A defendant may also forfeit a confrontation clause

challenge by engaging in wrongdoing that renders the

declarant unavailable with an intent to prevent that

declarant's in-court testimony. (Giles v. California

(2008) 554 U.S. 353, 377, 128 S.Ct. 2678, 171 L.Ed.2d

488.) No evidence of such a forfeiture is present here.

In Perez's opening brief, Perez challenges Peterson's

testimony from trial generally, but supplemental briefing

narrows Perez's confrontation clause challenge. One

month after Perez's opening brief, we issued People v.

Dungo (2012) 55 Cal.4th 608, 147 Cal.Rptr.3d 527, 286

P.3d 442 (Dungo), which addressed whether statements

in autopsy reports are testimonial. (Id. at pp. 618-621,

147 Cal.Rptr.3d 527, 286 P.3d 442.) Multiple state courts

have subsequently addressed similar issues. (See, e.g.,

Miller v. State (Okla.Crim.App. 2013) 313 P.3d 934,

967-973.) We also recently issued Sanchez, supra, 63

Cal.4th 665, 204 Cal.Rptr.3d 102, 374 P.3d 320, in

which we addressed the circumstances where an expert's

statements at trial constitute hearsay. (Id. at pp. 679-686,

204 Cal.Rptr.3d 102, 374 P.3d 320.) In light of these cases,

we requested supplemental briefing from Perez and the

Attorney General on the hearsay and confrontation clause

issues. In that supplemental briefing, Perez narrowed

the scope of his confrontation clause challenge. Instead

of the whole of Peterson's testimony, Perez challenges

only particular statements that Perez asserts could only

have been obtained from Hogan's autopsy report. These

statements include descriptions of the hemorrhaging of

the victim's eyes, the depth of knife wounds on the victim's

body, and internal injuries caused by *456 the stabbings.

We thus analyze the hearsay and confrontation clause

issues with respect to this narrowed challenge.

[43] [44] [45] We first address whether the challenged

statements are hearsay. If an expert testifies to casespecific out-of-court statements on which he or she relied

for their truth to form an opinion, such statements are

also “necessarily considered by the jury for their truth,

thus rendering them hearsay.” (Sanchez, supra, 63 Cal.4th

at p. 684, 204 Cal.Rptr.3d 102, 374 P.3d 320.) But an

expert may nonetheless “rely on hearsay in forming an

opinion, and may tell the jury in general terms that he did

so” without violating hearsay rules or the confrontation

clause. (Id. at p. 685, 204 Cal.Rptr.3d 102, 374 P.3d

320; see also People v. Leon (2015) 61 Cal.4th 569, 603,

189 Cal.Rptr.3d 703, 352 P.3d 289 [“It is also clear that

testimony **518 relating the testifying expert's own,

independently conceived opinion is not objectionable,

even if that opinion is based on inadmissible hearsay.”].)

Here, Peterson's description of the hemorrhaging in the

victim's eyes, the depth of knife wounds, and the internal

injuries caused by the stabbing related case-specific facts

about the victim's body that were taken directly from

Hogan's autopsy report and no other sources. (See, e.g.,

Sanchez, at p. 677, 204 Cal.Rptr.3d 102, 374 P.3d 320

[holding that “hemorrhaging in the eyes was noted during

the autopsy of a suspected homicide victim” could be

case-specific out-of-court statement if no other exhibits

established that fact].) Peterson also presented these facts

as true, and relied on their purported truth in forming his

opinion. These statements thus constitute hearsay under

Sanchez.

[46] Even if we assumed hearsay statements in an

autopsy report are admissible under an applicable hearsay

exception (see, e.g., Evid. Code, §§ 1280, 1271; cf. People

v. Clark (1992) 3 Cal.4th 41, 158-159, 10 Cal.Rptr.2d

554, 833 P.2d 561; People v. Beeler (1995) 9 Cal.4th 953,

978-981, 39 Cal.Rptr.2d 607, 891 P.2d 153), a separate

question would remain: whether the statements constitute

testimonial hearsay under the confrontation clause as

People v. Perez, 4 Cal.5th 421 (2018)

411 P.3d 490, 229 Cal.Rptr.3d 303, 18 Cal. Daily Op. Serv. 1991...

interpreted ***336 by Crawford and its progeny (see

Sanchez, supra, 63 Cal.4th at p. 685 & fn. 12, 204

Cal.Rptr.3d 102, 374 P.3d 320). In Dungo, we held that

“anatomical and physiological observations about the

condition of the body” are “not so formal and solemn

as to be considered testimonial for purposes of the Sixth

Amendment's confrontation right.” (Dungo, supra, 55

Cal.4th at pp. 619, 621, 147 Cal.Rptr.3d 527, 286 P.3d

442.) We need not address Dungo 's continued viability

here because any federal constitutional error arising from

the admission of these statements was harmless beyond a

reasonable doubt. 4 (See Chapman, supra, 386 U.S. at p.

24, 87 S.Ct. 824; People v. Pearson (2013) 56 Cal.4th 393,

463, 154 Cal.Rptr.3d 541, 297 P.3d 793.)

prejudice. Even if the challenged factual statements were

testimonial hearsay, Peterson's opinion about the cause of

death was admissible. While Peterson relied on hearsay

in forming his opinion, he is permitted to do so under

Sanchez and Evidence Code section 802. (See Sanchez,

supra, 63 Cal.4th at p. 685, 204 Cal.Rptr.3d 102, 374 P.3d

320 [“Any expert may still rely on hearsay in forming an

opinion, and may tell the jury in general terms that he did

so.”].) The jury would have thus heard Peterson's opinion

about the cause of death even if the trial court had denied

admission of the challenged hearsay statements. So we

conclude that any error was harmless beyond a reasonable

doubt.

**519 F. Other evidentiary issues

Perez also contends that the hearsay statements

do not fall into an applicable hearsay exception

(see Evid. Code, §§ 1280, 1271), and thus were

inadmissible under state law alone. But as with the

alleged confrontation clause error associated with the

admission of these hearsay statements, in this case,

any state law error was harmless beyond a reasonable

doubt.

*457 A comparison of the evidence at trial and

the hearsay statements shows why. At trial, evidence

bearing no connection to the hearsay statements, such as

photographs and police testimony, showed that someone

had choked Mrs. Daher and stabbed her multiple times.

These facts were not disputed. The exact depth of the

stab wounds, the fact that the victim's eyes contained

hemorrhages, and the details on her internal injuries, in

light of the other evidence at trial, were such minor pieces

of evidence that they had no effect on the jury's ultimate

determination of Perez's guilt.

[47] Yet Perez nonetheless contends that he still suffered

prejudice, because of the differing opinions of Hogan

and Peterson about the cause of death. Hogan testified

at Perez's co-defendant's trial that because of the small

amount of blood in the victim's lungs, the victim had died

before she was stabbed. Peterson, in contrast, opined that

the victim was still alive, but had a weak heartbeat when

someone stabbed her. Perez argues that these differing

opinions show prejudice, on the theory that the timing

of the victim's death could alter defendant's perceived

culpability, at least at the penalty phase. But there is a

disconnect between the statements Perez challenges from

Peterson's testimony—which only encompass factual

statements about the victim's body—and this claim of

1. Crime scene photo

[48] Perez claims the trial judge erred in denying defense

objections to the introduction into evidence of one

photo of the crime scene. Prior to trial, defense counsel

moved to preclude the prosecution from introducing into

evidence any photos of the victim's body. The trial court

reviewed the photos and then admitted three crime scene

photos and four autopsy photos. Defense ***337 counsel

objected, claiming that one of the crime scene photos

and one of the autopsy photos were duplicative of other

photos. Time and again, we have explained that the

admission of photographs alleged to include disturbing

details is essentially a relevance question, over which trial

courts retain considerable discretion. ( *458 People v.

Roldan (2005) 35 Cal.4th 646, 713, 27 Cal.Rptr.3d 360,

110 P.3d 289, disapproved on other grounds in Doolin,

supra, 45 Cal.4th at p. 421, fn. 22, 87 Cal.Rptr.3d 209, 198

P.3d 11; see also People v. Bonilla (2007) 41 Cal.4th 313,

353-354, 60 Cal.Rptr.3d 209, 160 P.3d 84.) We have also

explained that prosecutors “are not obliged to prove their

case with evidence solely from live witnesses; the jury is

entitled to see details of the victims' bodies to determine

if the evidence supports the prosecution's theory of the

case.” (People v. Gurule (2002) 28 Cal.4th 557, 624, 123

Cal.Rptr.2d 345, 51 P.3d 224; see also People v. Pierce

(1979) 24 Cal.3d 199, 211, 155 Cal.Rptr. 657, 595 P.2d 91

[“ ‘[M]urder is seldom pretty, and pictures, testimony and

physical evidence in such a case are always unpleasant.’

”].)

Perez points to the opinion in People v. Marsh (1985)

175 Cal.App.3d 987, 221 Cal.Rptr. 311, in which the

Court of Appeal said that where “[a]utopsy photographs

People v. Perez, 4 Cal.5th 421 (2018)

411 P.3d 490, 229 Cal.Rptr.3d 303, 18 Cal. Daily Op. Serv. 1991...

have been described as ‘particularly horrible,’ and where

their viewing is of no particular value to the jury, it can

be determined the only purpose of exhibiting them is to

inflame the jury's emotions against the defendant.” (Id. at

pp. 997-998, 221 Cal.Rptr. 311.) In Marsh, the prosecutor

sought to introduce photos that even he admitted were

“ ‘terribly gruesome and terribly upsetting.’ ” (Id. at p.

997, 221 Cal.Rptr. 311.) For instance, one photo displayed

the child victim's exposed brain, including his dangling

bloody scalp. In the background of the photo was the

child's blood-splattered torso “with the ribcages rolled

back to expose the bowels.” (Id. at p. 996, 221 Cal.Rptr.

311.) On appeal, the court held that the autopsy surgeon's

testimony was sufficient to make the prosecution's point

regarding the amount of force used to inflict fatal blows

to the victim. (Id. at p. 998, 221 Cal.Rptr. 311.) But the

Court of Appeal took care to reiterate that the trial court

maintains discretion to admit autopsy photos “even where

they are only cumulatively used to graphically portray

injuries already detailed in the testimony of a doctor

witness.” (Ibid.)

Unlike the photos in Marsh, the autopsy photos

introduced here were devoid of blood and showed little

of the victim's face. As for the crime scene photos, they

depicted the victim's body from a distance, with her face

hidden from view. These photos were probative to the

questions of the requisite state of mind of the perpetrator

because the severity and number of wounds helped

establish that the killing was intentional. The photos also

helped to corroborate Maury O'Brien's description of

where and how Mrs. Daher was killed. Even if the photos

were unsettling, the degree of prejudice did not outweigh

the probative value enough to exceed the trial court's

discretion.

2. Jason Hart's immunity agreement

[49] Perez claims the trial court and prosecutor vouched

for the credibility of prosecution witness Jason Hart

by disclosing a portion of Hart's immunity agreement.

Prior to Hart's testimony, the jury was told that Hart

*459 was granted immunity from prosecution. Hart then

disclosed that he could not be prosecuted for various

crimes related to the issue if he testified truthfully. Perez

claims that the disclosure of the immunity agreement was

prejudicial to the defense because it gave the jury the

impression that Hart was necessarily telling the truth.

We have long “require[d] full ***338 disclosure to the

jury of any agreement bearing on the witness's credibility,

including the consequences to the witness of failure to

testify truthfully.” ( **520 People v. Fauber (1992) 2

Cal.4th 792, 823, 9 Cal.Rptr.2d 24, 831 P.2d 249; see also

People v. Frye, supra, 18 Cal.4th at p. 971, 77 Cal.Rptr.2d

25, 959 P.2d 183 [ruling that prosecutor properly read

to the jury the terms of a witness's immunity agreement,

which stated that defendant had “promised to tell the

truth in exchange for the district attorney's promise to

refrain from charging her with any crimes relating to the ...

murders”].) The trial court properly allowed the jury to

learn about Hart's immunity agreement.

3. Maury O'Brien's taped interview

[50] Perez also contends the trial court should have

granted his motion for a mistrial after the prosecution

introduced a tape recording of Maury O'Brien's law

enforcement interview. That interview, Perez argues,

contained three improper comments by O'Brien. First,

O'Brien stated that Perez “just got out of the penitentiary.”

Both the prosecution and judge agreed that the jury

should not have heard this comment, and the judge told

jurors to disregard the comment as both speculative and

irrelevant. The judge also asked jurors if they would be

able to disregard the comment, and all jurors nodded

affirmatively. Second, O'Brien told officers that Perez

“wants to kill me right now because he knows that I saw

him.” The prosecution agreed the jury should not have

heard this comment. Though the statement appeared in

a transcript of O'Brien's interview, the attorneys noticed

the mistake during a break in the proceedings and the jury

was given a revised transcript with the statement redacted.

Third, the tape contained two brief references to a “test”

that officers would administer on O'Brien. The jury never

heard any explanation of what this “test” was, and the trial

court told jurors to disregard the reference.

[51] Perez is correct in one respect: Disclosing a

defendant's prior criminality to the jury can prejudice

the defendant's case. But here again, courts have

“considerable discretion” to determine whether such an

error warrants granting a mistrial or whether the error can

be cured through admonishment or instruction. (People

v. Haskett (1982) 30 Cal.3d 841, 854, 180 Cal.Rptr.

640, 640 P.2d 776 [“A mistrial should be granted if the

court is apprised of prejudice that it judges incurable

by admonition or instruction. [Citation.] Whether a

particular incident is incurably prejudicial is by its nature

a speculative matter, and the trial court is vested with

considerable discretion in ruling on mistrial motions.”];

People v. Perez, 4 Cal.5th 421 (2018)

411 P.3d 490, 229 Cal.Rptr.3d 303, 18 Cal. Daily Op. Serv. 1991...

see also *460 People v. McLain (1988) 46 Cal.3d 97, 113,

249 Cal.Rptr. 630, 757 P.2d 569 [holding that the trial

judge properly denied a motion for mistrial based on a

prosecutor's allegedly improper comment during closing

argument, since “the admonition given was sufficient to

prevent the harm”].) In this case, the jury's exposure to

Perez's past criminality was a brief comment in a recorded

interview played for the jury. The mistake was recognized

quickly, and the court crafted a remedy by telling jurors

that the comment was speculative and irrelevant and

then confirming that they would be able to disregard it.

This remedy was an acceptable alternative to granting

a mistrial, given the minor nature of the error. As for

the statement that Perez wanted to kill O'Brien, assuming

error, Perez suffered no prejudice because the page of

the transcript containing this comment was replaced with

a redacted version as soon as counsel discovered the

error and the record contains no basis to believe the

brief exposure to the statement caused prejudice. As

for O'Brien's reference to a “test,” the jury received no

***339 further information about this test and was told

to disregard the comment. The trial court did not abuse its

discretion by denying Perez's motion for a mistrial.

not exceed those limitations here. He merely asked the

witness to clarify at which train station the men exited, in

response to a complicated narrative that involved several

train stations.

*461 5. Incidents during defendant's prior

incarceration

[54] The prosecution asked to present penalty-phase

evidence of five violent incidents from while Perez was

incarcerated. After hearing arguments from counsel, the

court barred evidence of two of the incidents. Perez claims

that the evidence from the other three incidents should

have been excluded as well. He argues that “[t]here was

no evidence appellant initiated” the first incident; that

the second “seemed to be consensual”; and that the third

incident involved him acting in defense of another. Perez

points to no cases or other authorities that support his

argument, and we rejected similar claims in People v.

Moore (2011) 51 Cal.4th 1104, 1135-1139, 127 Cal.Rptr.3d

2, 253 P.3d 1153. We reject Perez's claims too.

6. Audience outburst

[55] During the cross-examination of a prosecution

witness

who claimed Perez had raped her when she was

4. Coaching of Maury O'Brien

[52]

[53] Perez claims the trial court improperly a child, the witness's father spoke up from the audience.

After the witness agreed with defense counsel that she

“coached” Maury O'Brien by asking O'Brien to clarify

had “mixed feelings” about the issue, the trial transcript

his answer to a question during his direct examination.

reflects a person in the audience saying, “Just like a

O'Brien testified that he, Snyder, and Perez boarded a

13 year old. You're leading the witness on here.” The

BART train at the Balboa Park station in San Francisco,

judge started to respond but the man interrupted saying,

intending to take the train to Fairfield. The men then got

“[M]y daughter was 13 years old, your Honor.” The court

off at the Orinda station to smoke cigarettes. O'Brien said

ordered a recess, during which the speaker was confirmed

that their plans changed at some point after that stop.

to be the witness's father. He apologized for the outburst,

In response, the prosecutor asked, “Were you guys still

and defense counsel did not ask the trial judge to instruct

doing dope?” O'Brien answered that he and Snyder “did

the jury to disregard his comments. Perez claims on appeal

dope at BART before we got on BART and after we

that “the court had a sua sponte duty to admonish and

got off BART before we started walking up **521 to

inform the jury that they should disregard any comments

—back into the hills.” The trial judge then interrupted

from this spectator.” We have held that a “defendant's

to ask, “At what BART station?” “Lafayette BART

failure to object to and request a curative admonition for

station,” O'Brien replied. Perez claims that the judge's

alleged spectator misconduct waives the issue for appeal

question helped O'Brien modify his testimony, depriving

if the objection and admonition would have cured the

the defense of a chance to exploit the inconsistency during

misconduct.” ( ***340 People v. Hill (1992) 3 Cal.4th

cross-examination. Trial courts may question witnesses

959, 1000, 13 Cal.Rptr.2d 475, 839 P.2d 984, overruled

to elicit material facts or clarify confusing or unclear

on other grounds in Price v. Superior Court (2001) 25

testimony, so long as the questions remain “ ‘ “temperate,

Cal.4th 1046, 1069, fn. 13, 108 Cal.Rptr.2d 409, 25 P.3d

nonargumentative, and scrupulously fair” ’ ” and do not

618.) Because defense counsel never asked for the judge to

“convey to the jury the court's opinion of the witness's

comment on the spectator's remarks, we see no reason to

credibility.” (People v. Cook (2006) 39 Cal.4th 566, 597,

treat the judge's failure to comment on those remarks as

47 Cal.Rptr.3d 22, 139 P.3d 492.) The trial judge did

People v. Perez, 4 Cal.5th 421 (2018)

411 P.3d 490, 229 Cal.Rptr.3d 303, 18 Cal. Daily Op. Serv. 1991...

grounds for reversal. Consistent with our past decisions in

this area, we consider Perez to have waived this issue.

irrational response.” Each daughter offered her personal

perspective on the impact of her mother's death. This

evidence shed light on the family's ongoing grief, thereby

“informing the sentencing authority about specific harm

7. Prejudicial victim impact evidence

caused by the crime in question.” (Payne v. Tennessee,

[56]

[57] Perez claims the trial judge should not have supra, 501 U.S. at p. 825, 111 S.Ct. 2597.)

allowed certain victim impact evidence during the penalty

phase. The Eighth Amendment does not categorically bar

victim impact evidence. (Payne v. Tennessee (1991) 501

8. Presence of victim's family

U.S. 808, 827, 111 S.Ct. 2597, 115 L.Ed.2d 720.) To the

[59] [60] Perez claims that the presence of the victim's

contrary, witnesses are permitted to share with jurors the

family members in the courtroom violated his right to

harm that a capital crime caused in their *462 lives. (Id.

due process and equal protection. Crime victims and

at p. 825, 111 S.Ct. 2597 [“[A] State may properly conclude

their families are routinely present at trials, and the Sixth

that for the jury to assess meaningfully the defendant's

Amendment right to a public trial creates a “presumption

moral culpability and blameworthiness, it should have

of openness” that ordinarily allows victims or other

before it at the sentencing phase evidence of the specific

members of the public to observe ***341 trials. Where

harm caused by the defendant.”].) Still, a defendant can

a party seeks exclusion of the public, the presumption of

challenge victim impact evidence that renders a sentencing

openness can be rebutted only when the party shows the

proceeding “fundamentally unfair.” (Ibid.; see also id. at

public's exclusion was “necessary to protect some ‘higher

p. 831, 111 S.Ct. 2597 (conc. opn. of O'Connor, J.).)

value’ such as the defendant's right to a fair trial, or the

In striking this balance between proper victim impact

government's interest in preserving the confidentiality of

evidence and fundamentally unfair evidence, this court

the proceedings.” ( *463 People v. Woodward (1992) 4

has explained that the effects of a capital crime are relevant

Cal.4th 376, 383, 14 Cal.Rptr.2d 434, 841 P.2d 954.) Given

and admissible as a circumstance of the crime unless the

the ubiquity of crime victims and their families observing

evidence **522 “ ‘invites a purely irrational response

trials, Perez's generalized claims that the mere presence of

from the jury.’ ” (People v. Garcia (2011) 52 Cal.4th

the victim's family was improper “victim impact evidence”

706, 751, 129 Cal.Rptr.3d 617, 258 P.3d 751.) Garcia

does not rebut the constitutional presumption of open

rejected the notion that admissible victim impact evidence

criminal trials.

is limited to the “ ‘ “immediate injurious impact” ’ ” or

to “effects ‘known or reasonably apparent’ to defendant

G. Instructional errors

at the time it was committed.” (Ibid.) We explained that

prosecutors may present testimony “from those who loved

the murder victim” showing “ ‘how they missed having

[the victim] in their lives.’ ” (Ibid., quoting People v.

Boyette (2002) 29 Cal.4th 381, 444, 127 Cal.Rptr.2d 544,

58 P.3d 391.)

[58] The prosecution's final two witnesses during the

penalty phase were the victim's daughters, Lauren and

Annie. Lauren was 15 when her mother was killed. She

told jurors that her mother's death was “the hardest thing

I think I could ever even imagine[ ]” and that she had since

“turned into the mom of the family.” She also testified

that “[m]y entire junior year of high school, I didn't really

go to school because I couldn't get up in the morning.”

Annie was 12 when her mother was killed. She testified

that “a lot of times I'm just so sad that I can't—I—

that I can't really do anything.” Perez fails to show that

the testimony from the victim's daughters rendered the

proceeding “fundamentally unfair” or invited a “purely

1. CALJIC Former No. 17.41.1

[61] Perez argues that the trial court should not have

instructed the jury with CALJIC former No. 17.41.1,

which, as modified by the trial court, stated, “The integrity

of a trial requires that jurors at all times during their

deliberations conduct themselves as required by these

instructions. [¶] Accordingly, should it occur that any

juror refuses to deliberate or expresses an intention to

disregard the law or to decide the case based on penalty

or punishment or any other improper basis, it is the

obligation of the other jurors to immediately advise the

Court of that situation.” Though in 2002, we disapproved

use of this particular instruction in trials going forward

from that point, we have since that case repeatedly

“rejected similar claims that the instruction violates a

defendant's federal constitutional rights.” (People v. Brady

(2010) 50 Cal.4th 547, 587, 113 Cal.Rptr.3d 458, 236 P.3d

312; see also People v. Wilson, supra, 44 Cal.4th at pp.

People v. Perez, 4 Cal.5th 421 (2018)

411 P.3d 490, 229 Cal.Rptr.3d 303, 18 Cal. Daily Op. Serv. 1991...

805-806, 80 Cal.Rptr.3d 211, 187 P.3d 1041.) Perez was

tried before our 2002 opinion disapproving the use of

CALJIC former No. 17.41.1, and he fails to show why our

precedent should not control here.

2. Section 190.3

[62] The prosecution presented evidence that Perez raped

a child aged under 14. The court instructed the jury on

the elements of both forcible rape and lewd acts with

a child under 14. Perez claims that instruction on this

second crime was prejudicial and irrelevant. **523 The

prosecution requested the instruction on this crime out of

concern that a revocation of consent during intercourse

was not considered rape under California law at the time

of trial. (See People v. Vela (1985) 172 Cal.App.3d 237,

242, 218 Cal.Rptr. 161 [holding that a defendant is not

guilty of forcible rape if a victim withdraws consent during

intercourse], disapproved of in In re John Z. (2003) 29

Cal.4th 756, 760-763, 128 Cal.Rptr.2d 783, 60 P.3d 183.)

But the uncontradicted evidence at trial showed that Perez

did in fact use force to overcome the victim's will, so

jurors could not have found that Perez had sex with the

victim without believing that he used force either before

or during intercourse. Any error in instructing the jury on

the elements of lewd acts was therefore harmless.

3. CALJIC No. 8.88

[63] The court instructed the jury with CALJIC No.

8.88, which provides in part, “To return a judgment

of death, each of you must be persuaded that the

*464 aggravating circumstances are so substantial in

comparison with the mitigating circumstances that it

warrants death instead of life without parole.” During

closing argument, defense counsel told the jury that it was

required to vote for life if it found the aggravating and

mitigating circumstances equal. The judge interrupted,

saying that defense counsel misstated the law and the

jury should ignore counsel's statement. After ***342

defense counsel finished the closing argument, the judge

gave a clarifying instruction that tracked CALJIC No.

8.88. Perez claims the judge should not have given this

clarifying instruction, and he asserts the instructions were

unconstitutional. Perez acknowledges that we previously

rejected similar challenges. We reject his claim too.

H. California's death penalty statute

[64]

[65] Perez advances several claims about the

constitutionality of California's capital sentencing scheme

that he concedes “have been rejected by this Court.” We

are not persuaded to reconsider our precedent. (People

v. Winbush (2017) 2 Cal.5th 402, 488, 213 Cal.Rptr.3d

1, 387 P.3d 1187.) The state's death penalty scheme

does not violate the federal Constitution by failing to:

require written findings from the jury as to aggravating

and mitigating factors (see, e.g., id. at p. 490, 213

Cal.Rptr.3d 1, 387 P.3d 1187); require jurors to find

aggravating factors beyond a reasonable doubt (see,

e.g., id. at p. 489, 213 Cal.Rptr.3d 1, 387 P.3d 1187);

require jurors to find aggravating factors unanimously

(see, e.g., ibid.); adequately narrow the class of offenders

eligible for the death penalty (see, e.g., id. at p. 488,

213 Cal.Rptr.3d 1, 387 P.3d 1187); adequately narrow

prosecutorial discretion as to who is charged with capital

crimes (see, e.g., People v. Weaver (2001) 26 Cal.4th

876, 992, 111 Cal.Rptr.2d 2, 29 P.3d 103); or require

either “intercase proportionality review” or “the disparate

sentence review that is afforded under the determinate

sentence law” (People v. Williams (2016) 1 Cal.5th 1166,

1205, 211 Cal.Rptr.3d 1, 384 P.3d 1162). Nor did the

trial court err either by instructing the jury about the

aggravating and mitigating factors using a unitary list

(see, e.g., People v. Myles (2012) 53 Cal.4th 1181, 1222,

139 Cal.Rptr.3d 786, 274 P.3d 413) or by telling jurors

to consider section 190.3 factors “if applicable” (see, e.g.,

People v. Maury (2003) 30 Cal.4th 342, 439-440, 133

Cal.Rptr.2d 561, 68 P.3d 1).

I. Proportionality

[66] Perez claims his sentence is unconstitutional because

it is disproportionate relative to the punishment his

accomplices received. What we have previously held is

that “the federal Constitution does not require us to

incorporate into our proportionality determination any

comparison of defendant's sentence with that of another

culpable person, whether charged or uncharged.” (People

v. Hill, supra, 3 Cal.4th at p. 1014, 13 Cal.Rptr.2d 475,

839 P.2d 984.) Even if we were to *465 undertake

this comparison though, Perez's culpability here appears

deeper than that of Snyder and O'Brien. Perez argues

that the fact that he “has been sentenced to death while

the prosecutor did not even seek death against the other

defendants demonstrates a lack of proportionality.” But

Snyder was 17 at the time of the crimes, and California's

capital punishment statute has long provided that “the

death penalty shall not be imposed **524 upon any

People v. Perez, 4 Cal.5th 421 (2018)

411 P.3d 490, 229 Cal.Rptr.3d 303, 18 Cal. Daily Op. Serv. 1991...

person who is under the age of 18 at the time of the

commission of the crime.” (§ 190.5.) As for O'Brien,

he testified that he did not encourage or participate in

the homicide other than to follow Perez's orders and

hand Perez the knife. Given the gravity of the offense

here as well as the evidence of Perez's particular role,

Perez's sentence does not violate any Eighth Amendment

requirement of proportionate sentencing.

J. Equal protection, international law

[67] Perez claims his sentence violates equal protection

principles under both federal and international law, along

with a number of other requirements of international law.

He concedes that we have repeatedly rejected these claims

on the ***343 grounds that distinctions between capital

and noncapital sentences are sufficiently justified and that

international law is not a basis to invalidate sentences

that are lawful under domestic law. (See, e.g., People

v. Virgil (2011) 51 Cal.4th 1210, 1290, 126 Cal.Rptr.3d

465, 253 P.3d 553 [“ ‘[C]apital and noncapital defendants

are not similarly situated and therefore may be treated

differently without violating constitutional guarantees of

equal protection of the laws.’ ”] ); People v. Jennings

(2010) 50 Cal.4th 616, 690, 114 Cal.Rptr.3d 133, 237 P.3d

474 [“ ‘International law does not prohibit a sentence

of death rendered in accordance with state and federal

constitutional and statutory requirements.’ ”].) We do the

same today.

K. Lethal injection

[68] Perez claims his death sentence is illegal because it

will be carried out using a method of lethal injection that

violates the Eighth Amendment. But this “challenge to the

method of a future execution is not cognizable on appeal,

because such a claim does not impugn the validity of the

judgment.” (People v. Burney (2009) 47 Cal.4th 203, 270,

97 Cal.Rptr.3d 348, 212 P.3d 639.)

L. Cumulative error

End of Document

[69] Perez claims that the errors he has asserted were

cumulatively prejudicial even if they were individually

harmless. The only issues we resolve purely on harmless

error grounds are the following: Perez's absence from the

discussion between Judge Spinetta and Perez's counsel

about a conflict of interest; the *466 admission of

hearsay evidence from an autopsy report through an

expert's testimony; some of the claims of prosecutorial

misconduct; the accidental inclusion, in a transcript given

to the jury, of O'Brien's testimony that Perez wanted to

kill him; and the jury's instruction on the elements of lewd

acts with a child under 14, in relation to evidence of a prior

uncharged rape. None of these potential errors, nor their

cumulative effect, warrants reversal.

III.

The judgment is affirmed.

WE CONCUR:

CANTIL-SAKAUYE, C. J.

CHIN, J.

CORRIGAN, J.

LIU, J.

KRUGER, J.

JENKINS, J. *

Associate Justice of the Court of Appeal, First

Appellate District, Division Three, assigned by the

Chief Justice pursuant to article VI, section 6 of the

California Constitution.

All Citations

4 Cal.5th 421, 411 P.3d 490, 229 Cal.Rptr.3d 303, 18 Cal.

Daily Op. Serv. 1991, 2018 Daily Journal D.A.R. 1936

APPENDIX B

APPENDIX C

CONTRA COSTA COUNTY CORONER'S OFFICE

WARREN E. RUPF, SHERIFF-CORONER

REPORT OF AUTOPSY

NAME: DAHER, Janet

POSTMORTEM AT: Central Morgue

DATE: 03/26/98

PLACE OF DEATH: Lafayette, CA

AGE: 46

CR 98-0451

DATE: 03/24/98

TIME: Unk. HRS.

SEX: Female

RACE: White

ANATOMIC DIAGNOSES

Ligature Strangulation.

Phone cord wrapped three times around each wrist, extending across the back

from right hip to left shoulder and around neck.

Phone cord embedded in neck with pattern furrow on left side of the neck and

abrasion on the right side and back of the neck.

Tongue protruding from mouth.

Hemorrhage, petechial hemorrhages, and edema of periorbital soft tissues.

Bilateral scleral hemorrhages.

Stab and cutting wound to right side of the neck (stab wound "A").

Four stab wounds to left side of the chest (stab wounds "B, C, D and E").

Ten stab wounds to the back of the chest (stab wounds "F,G,H,I,J,K,L,M,N and 0").

Cutting wound to front of left arm (cutting wound "P").

Other injuries.

Abrasions left side of the face.

CAUSE OF DEATH:

Ligature Strangulation and Multiple Stab and Cutting Wounds

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Date:

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DAHER, Janet

98-0451

EXTERNAL EXAMINATION

The body is that of a well developed, well nourished, white female, who appears consistent wi(~'i

the reported age of 46 years. The body measures 65 inches and weighs 140 pounds. The bOd)~~)

is clothed in a navy blue sweat shirt, a black and white stripped t-shirt, a white bra, black jeans~

white panties, white socks and black loafer shoes. There are diamond and gold earrings and a

Rolex watch on the body. Rigor mortis is fully developed. The body is cold and lividity is

anterior except over pressure points. The scalp hair is tinted red and straight. The irides are

brown, the cornea are clear, and the sclerae and conjunctivae are remarkable for hemorrhages

in the lateral aspects of both sclerae. Injuries to the face are noted below. The ears, nose· and

mouth contain blood. The nasal skeleton and facial bones are palpably intact. The lips are

without evidence of injury. The teeth are natural and in good condition. The tongue is clenched

in the teeth and protrudes from the mouth approximately 1/4 inch. Injuries to the neck and chest

are noted below. The abdomen is scaphoid. Surgical scars are not noted. The external genitalia

are those of a adult female. Injuries to the extremities are noted below. The fingernails are

intact. Tattoos are not noted. Needle tracks are not noted. Injuries to the posterior torso are

noted below.

EVIDENCE OF THERAPY:

None.

EVIDENCE OF INJURY

LIGATURE STRANGULATION:

There is a coiled phone line embedded in the deceased neck showing superior angulation.

The phone line is wrapped once around the victims neck starting from the left side of the

neck, coming around the front of the neck and then around the right side of the neck and

to the back of the neck where there is one loose end of the phone line. The other end of

the phone line tracks across the deceased back in a diagonal direction from the left

shoulder to the right hip and then wraps around the wrists, three times around each wrist.

The hands are behind the back and the phone cord comes from the back around the right

wrist then the left in a figure-8 fashion for three times. There are patterned furrows in each

wrist from the cord. There is a patterned furrow in the deceased neck. The furrow is 1/8

inch deep on the left side of the neck and is 1/4 inch wide. The furrow is situated 8 inches

below the top of the head on the left side of the neck, the right side of the neck, and the

back of the neck. The furrow is situated 10 Yz inches below the top of the head in the

midline of the front of the neck. While the furrow is 1/8 inch deep on the left side of the

neck it consists of an abrasion only on the right side of the neck and the back of the neck.

There are petechial hemorrhages and edema in the bilateral periorbital soft tissues. There

are large hemorrhages involving the lateral half of the sclera in each eye. The tongue

protrudes approximately 1/4 inch from the mouth. These findings are consistent with

ligature strangulation.

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DAHER, Janet

98-0451

STAB AND CUTTING WOUNDS:

/ ~ These stab and cutting wounds are labeled "A" through "P", for purposes of identification only.

STAB AND CUTTING WOUND "A":

There is a deep cutting wound to the right side of the neck which is situated 6 inches

below the top of the head on the superior and 8 % inches below the top of the head on the

inferior end. It is oriented parallel to the long axis of the body. The cutting wound is 4

inches in length. 1 1/4 inches from the superior end of the cutting wound there is a % wide

stab wound which is 1 3/4 inches deep. On the inferior border of the cutting wound at the

level of the stab wound there is a 5/8 inch abrasion. When approximated both borders of

the cutting wound are sharp. The stab wound path is directed right to left, front to back,

and downward. The stab wound penetrates the skin and soft tissues of the right side and

the back of the neck.

STAB WOUND "B":

There is a deep penetrating stab wound to the right side of the torso, situated 17 inches

below the top of the head and 8 % inches to the left of the anterior midline. It is oriented

at an oblique angle. The stab wound entry is 7/8 inch long and approximately 1/4 inch

wide. When approximated both borders are sharp. There is no abrasion on the edges of

the entry wound. The stab wound path is directed left to right, back to front and slightly

downward. The stab wound path penetrates the skin and soft tissues of the left side of

the chest and is approximately 1 % inches deep.

STAB WOUND "C":

There is a deep penetrating stab wound to the left side of the chest situated 19 inches

below the top of the head and 7 % inches to the left of the anterior midline. It is oriented

at an oblique angle. The stab wound entry is 5/8 inch long and approximately 1/8 inch in

width. When approximated both borders are sharp. There are no abrasions on the

borders of the entry wound. The stab wound path is directed left to right, back to front

and slightly downward. The stab wound path penetrates the skin and soft tissues of the

left side of the chest and the 6th left rib on the lateral aspect. The wound is approximately

1 % inches deep.

STAB WOUND "0":

There is a deep penetrating stab wound to the left side of the chest. The wound of entry

is situated 19 inches below the top of the head and 8 inches to the left of the anterior

midline. It is oriented at an oblique angle. The stab wound entry is 5/8 inch in length and

approximately 1/8 inch in width. When approximated both borders are sharp. There are

no abrasions on the edges of the entry wound. The stab wound path is directed left to

right, back to front, and slightly downward. The stab wound path penetrates through the

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DAHER, Janet

98-0451

skin and soft tissues through the left side of the chest, and the lateral aspect of the 7th left

rib. The wound is approximately 1 Yz inches deep.

STAB WOUND "E":

There is a deep penetrating stab wound to the left side of the chest. The wound of entry

is situated 21 inches below the top of the head and 9 Yz inches to the left of the anterior

midline. It is oriented at an oblique angle. The stab wound of entry is 3/4 inch long and

approximately 1/8 inch wide. When approximated both borders are sharp. There are no

abrasions on the edges of the entry wound. The stab wound path is directed left to right,

back to front, and slightly downward. The stab wound path penetrates through the skin

and soft tissues of the left side of the chest, the 9th left rib, and the lower lobe of the left

lung for approximately 1 inch. The depth of the stab wound is approximately 2 Yz inches.

STAB WOUND "F":

There is a deep penetrating stab wound to the back of the left shoulder. The wound of

entry is situated 9 inches below the top of the head and 2 inches to the left of the posterior

midline. The wound is oriented parallel to the long axis of the body. The stab wound

entry is 1 1/4 inches in length and approximately 1/4 inch in width. When approximated

both borders are sharp. There is a 1/4 inch abrasion along the lower edge of the wound.

The stab wound path is directed left to right, back to front, and upward. The stab wound

path penetrates through the skin and soft tissues of the left shoulder, the left external

jugular vein, the left carotid artery, the left lobe of the thyroid gland and the left side of V/'-"',]

trachea. The wound is approximately 3 1/4 inches deep.

\_--j

STAB WOUND "G":

There is a deep penetrating stab wound to the left side of the back. The wound of entry

is situated 8 1/8 inches below the top of-the head and crosses the midline of the back. It

is oriented at an oblique angle. The stab wound entry is 1 1/4 inches in length and

approximately 1/4 inch in width. When approximated both borders are sharp. There are

no abrasions on the edges of the wound. The stab wound path is directed, left to right,

back to front, and slightly upward. The stab wound path penetrates through the skin and

soft tissues of the back and is approximately 1 1/4 inch in depth.

STAB WOUND "H":

There is a deep penetrating stab wound to the midline of the back. The wound of entry

is situated 10 inches below the top of the head and crosses the midline. It is oriented at

an oblique angle. The stab wound entry is 3/4 inch long and approximately 1/4 inch in

width. When approximated both borders are sharp. There are no abrasions on the edges

of the entry wound. The wound path is directed left to right, back to front, and slightly

upward. The stab wound path penetrates through the skin and soft tissues of the b~kl

and is approximately 1 3/4 inch d e e p . , ')

"-._-j

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TF-011497

98-0451

DAHER, Janet

STAB WOUND "I":

There is a deep penetrating stab wound to the right side of the back. The wound of entry

is situated 10 1/4 inches below the top of the head and 1 inch to the right of the posterior

midline. The wound is oriented parallel to the long axis of the body. The stab wound

entry is 11/4 inch in length and approximately 114 inch in width. When approximated both

borders are sharp. There are no abrasions on the edges of the entry wound. The stab

wound path is directed right to left, back to front, and downward. The stab wound path

penetrates through the skin and soft tissues of the right side of the back, the right ribs 1

and 2 on the posterior aspect, and the upper lobe of the right lung where it penetrates

approximately 1 inch. The stab wound is approximately 4 inches in depth.

STAB WOUND "J":

There is a deep penetrating stab wound to the left side of the back of the chest. The

wound of entry is situated 13 % inches below the top of the head and 2 inches to the left

of the posterior midline. It is oriented parallel to the long axis of the body. The stab

wound entry is 1 1/4 inches in length and approximately 1/4 inch in width. When

approximated both borders are sharp. There is a 1/8 inch linear abrasion on the superior

border which is oriented perpendicular to the stab wound. The stab wound path is

directed back to front, left to right, and slightly downward. The stab wound path

penetrates through the skin and soft tissues of the left side of the back of the chest, the

6th left rib on the posterior aspect, and the lower lobe of the left lung for approximately 1

inch. The depth of the stab wound is approximately 5 inches.

STAB WOUND "K":

There is a deep penetrating stab wound to the left side of the back of the chest. The

wound of entry is situated 14 inches below the top of the head and 1 inch to the left of the

posterior midline. It is oriented parallel to the long axis of the body. The stab wound

entry is 1 % inches long and approximately 1/4 inch in width. When approximated both

borders are sharp. 1/4 inch to the right of the superior border of the stab wound there is

a 1/4 inch square abrasion in the surrounding skin. The stab wound path is directed left

to right, back to front, and slightly downward. The stab wound path penetrates the skin

and soft tissues of the left side of the back of the chest, the 7th left rib on the posterior

aspect, and the lower lobe of the left lung for approximately 1 inch. The stab wound depth

is approximately 5 inches.

STAB WOUND "l":

There is a deep penetrating stab wound to the left side of the back of the chest. The

wound of entry is situated 15 inches below the top of the head and % inch to the left of the

posterior midline. It is oriented parallel to the long axis of the body. The stab wound on

entry is 1 3/8 inches long and approximately 1/4 inch in width. There is a 1/4 inch square

abrasion on the superior border of the wound. There is also a 3/8 inch square abrasion

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DAHER, Janet

98-0451

1/4 inch to the right of the wound in the surrounding skin. When approximated both

borders are sharp. The stab wound path is directed left to right, back to front and slightly

downward. The stab wound path penetrates the skin and soft tissues on the left side0\

the back, the 9 th left rib on the posterior aspect and the lower lobe of the left lung t~.~j

approximately % inch. The wound is approximately 4 inches deep.

STAB WOUND "M":

There is a deep penetrating stab wound to the right side of the back of the chest. The

wound of entry is situated 12 inches below the top of the head and 1/4 inch to the right of

the posterior midline. It is oriented parallel to the long axis of the body. The stab wound

entry is 1 1/4 inches long and approximately 1/4 inch in width. When approximated both

borders are sharp. There is a 1/4 inch linear abrasion in the surrounding skin at the

superior border of the wound. The stab wound path is directed back to front, toward the

right, and slightly downward. The stab wound path penetrates through the skin and soft

tissues of the right side of the back, the 5th and 6th right ribs on the posterior aspect and

the lower lobe of the right lung for approximately 2 inches. The depth of the wound is

approximately 5 inches.

STAB WOUND "N":

There is a deep penetrating stab wound to the right side of the back of the chest. The

wound of entry is situated 15 inches below the top of the head and 2 % inches to the right

of the posterior midline. It is oriented at an oblique angle. The stab wound entry is 1 \/-'1

inches in length with a 1/4 inch long curved end to the inferior border of the wound. Ttil~j

curved end is consistent with the knife being turned while it is in the wound. There is a

1/4 inch linear abrasion in the surrounding skin at the superior border of the wound. When

approximated both borders are sharp. The stab wound path is directed toward the right,

back to front, and slightly downward. The stab wound path penetrates through the skin

and soft tissues of the right side of the back of the chest, the 8 th and 9th ribs on the

posterior aspect, and the lower lobe of the right lung for approximately % inch. The depth

of the stab wound is approximately 4 inches.

STAB WOUND "0":

There is a deep penetrating stab wound to the right side of the back of the chest. The

wound of entry is situated 15 1/4 inches below the top of the head and 3 % inches to the

right of the posterior midline. It is oriented at an oblique angle. The stab wound entry is

11/4 inches long and approximately 114 inch in width. When approximated both borders

are sharp. There are two abrasions on the lateral edge of the wound which are situated

respectively 3/8 inch from the superior and inferior borders of the wound. There is a 1/4

inch square abrasion in the surrounding skin located 1/4 inch in the medial direction from

the superior border of the wound. The stab wound path is directed toward the right, back

to front, and slightly downward. The stab wound path penetrates through the skin a~Jt'\

soft tissues of the right side of the back of the chest, the 7 th , 8th , 9t h, and 10th ribs on ti,

)

"--"" '

TF-011501

DAHER, Janet

98-0451

posterior border, and the lower lobe of the right lung for approximately 2 inches. The stab

wound depth is approximately 5 % inches.

/~~"

'''-J CUTTING WOUND "P":

There is a cutting to the front of the left arm. The wound of entry is located 6 inches distal

to the point of the left shoulder. The cutting wound is 1 1/4 inch in length. The wound is

oriented perpendicular to the long axis of the body. The wound penetrates the skin of

front of the left arm and is less than 1/4 inch in depth.

ASSOCIATED INJURIES:

Associated with the stab wounds to the chest there is 200 ml of fluid and clotted blood in

the left pleural cavity and 400 ml of fluid and clotted blood in the right pleural cavity.

OTHER INJURIES:

There is a 3/4 x 1/4 inch irregularly shaped abrasion just lateral to the left eyebrow,

situated 2 % inches below the top of the head and 2 % inches to the left of the anterior

midline. There are two abrasions on the left cheek, situated 4 inches below the top of the

head and 2 inches to the left of the anterior midline. These abrasions are 1/4 inch in

greatest dimension and triangular in shape. These three marks are consistent with rugburns.

INTERNAL EXAMINATION

BODY CAVITIES:

The body is opened by the usual Y-shaped and intermastoid incisions and the chest plate is

removed. There are no adhesions in the pericardial, pleural or peritoneal spaces. There is

bilateral hemothorax as noted above. All body organs are in normal anatomical position. The

subcutaneous fat layer of the abdominal wall is 1 inches thick.

HEAD:

The scalp is reflected after making the usual intermastoid incision and is free of subgaleal

hemorrhage. The calvarium and dura mater are intact. There is no evidence of epidural or

subdural hemorrhage. The leptomeninges are thin and delicate; there is no subarachnoid

hemorrhage. The structures at the base of the brain, including cranial nerves and blood vessels

are intact. Coronal sections through the cerebrum and transverse sections through the

cerebellum and brain stem are unremarkable. The upper spinal cord is normal. The brain

weighs 1430 grams.

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DAHER, Janet

98-0451

NECK:

Examination of the soft tissues of the neck, including strap muscles, thyroid gland, larr--'\

vessels, hyoid bone, thyroid and cricoid cartilages, reveals no non-traumatic abnormalities~~)

CARDIOVASCULAR SYSTEM:

The 320 gram heart has a normal external configuration; the pericardial surfaces are smooth and

glistening. The coronary arteries arise normally, follow the usual distribution, and are without

significant atherosclerosis or thrombosis. The chambers and valves have the normal sizeposition relationship and are unremarkable. The myocardium is dark red-brown, firm and

uniform; the atrial and ventricular septa are intact. The great vessels exit and return to the heart

in a normal distribution and are unremarkable.

RESPIRATORY SYSTEM:

Injuries to the lungs are noted above. The airway contains blood. Except for injuries noted

above the pleural surfaces are smooth and glistening. Sections reveal a uniform red-purple

parenchyma which exudes moderate amounts of blood and frothy fluid. The pulmonary arteries

and veins are normally distributed and unobstructed. The right lung weighs 470 grams, the left

350 grams.

GASTROINTESTINAL SYSTEM:

,,f . . . . . . . . \'

Injuries to the tongue are noted above. The mucosa of the esophagus, stomach and duodenlJ'n/

is intact; the gastric lumen is empty. The small and large bowel are unremarkable. The appendix

is present.

't...

HEPATOBILIARY SYSTEM:

The 1380 gram liver is covered by a glistening, intact capsule. Sections reveal a dark red-brown

uniform parenchyma. The extrahepatic biliary tree is normally distributed and unobstructed.

The gallbladder contains 10 ml of dark green mucoid bile; the mucosa is velvety and

unremarkable. The pancreatic parenchyma is yellow-tan and lobular and the ducts are clear.

RETICULOENDOTHELIAL SYSTEM:

The 60 gram spleen is covered by a wrinkled gray intact capsule. Sections reveal a congested

red-purple parenchyma with a normal distribution of white pulp. The regional lymph nodes and

bone marrow are grossly unremarkable.

GENITOURINARY SYSTEM:

9',e",

The renal capsules are smooth, thin and semi-transparent and strip with ease from

underlying smooth, red-brown cortical surface. The cortex is slightly congested and is shar

TF-011505

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DAHER, Janet

98-0451

delineated from the unremarkable medulla and collecting system. The ureters follow the normal

course to the urinary bladder which is empty. The non-gravid uterus and appendages are

unremarkable. Each kidney weighs 120 grams.

ENDOCRINE SYSTEM:

The pituitary, thyroid and adrenal glands are unremarkable.

MUSCULOSKELETAL SYSTEM:

There are no nontraumatic bone or joint abnormalities. The skeletal muscle is red-brown and

firm.

SPECIMENS RETAINED:

Blood and standard tissue sections saved.

TOXICOLOGY SPECIMENS:

Blood is submitted.

PRESENT

. 'S. Jagoda, Pathologist's Assistant

Sergeant D. Sweeney, Sheriff's Office, Contra Costa County

Detective M. Hubbard, Sheriff's Office, Contra Costa County

B. Hole, District Attorney's Office, Contra Costa County

S. Ojena, Criminalist, Sheriff's Office, Contra Costa County

C. Inman, Fingerprint Technician, Sheriff's Office, Contra Costa County

TF-011S07

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