Filed 3/1/18




       IN THE SUPREME COURT OF CALIFORNIA


THE PEOPLE,                          )
                                     )
           Plaintiff and Respondent, )
                                     )                            S104144
           v.                        )
                                     )
JOSEPH ANDREW PEREZ, JR.,            )
                                     )                     Contra Costa County
           Defendant and Appellant.  )                    Super. Ct. No. 990453-3
____________________________________)


        In November 2001, Joseph Andrew Perez, Jr., was sentenced to death for
killing Janet Daher during a March 1998 robbery at 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.
                                          I.
        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

1       All subsequent unlabeled statutory references are to the Penal Code.

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first. (See People v. Snyder (2003) 112 Cal.App.4th 1200, 1206, 1216.) He was
convicted of all four charges and sentenced to life in prison 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.
       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 on their 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 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

                                           2
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

                                          3
“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 “yelled out to
[Perez] and [Snyder] that we had 15 minutes to get in and out.” O’Brien may 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.”
       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” 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

                                         4
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 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.



                                         5
       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 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.
       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 called Mrs. Daher’s two daughters, who described how Mrs.

                                          6
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 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
of new testimony on the uncharged prior crimes.

                                          7
       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 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.”



                                           8
       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 co-
defendant 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.
       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 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 co-defendant Snyder also present (the trials had

                                          9
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
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



                                            10
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 [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 appearance that I’m addressing those matters. Those are
not 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 evidentiary hearing in September 2000. Egan testified at the hearing,

                                          11
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.
       b) Analysis
       Both the United States Constitution and the California Constitution
guarantee criminal defendants the right to the assistance of counsel unburdened by
any conflicts of interest. (See People v. Doolin (2009) 45 Cal.4th 390, 417
(Doolin).) Essentially, a claim of conflict of interest constitutes a form of
ineffective assistance of counsel. (Ibid.; People v. Mai (2013) 57 Cal.4th 986,
1009-1010 [“[A] claim of conflicted representation is one variety of claim that
counsel provided ineffective assistance.”]; Doolin, at p. 419 [“Under our state
Constitution, the right to counsel includes the correlative right to conflict-free
representation.”].) In order to demonstrate a violation of the federal and state
constitutions based on a conflict of interest, a defendant must show that his or her
counsel was burdened by an “actual” conflict of interest –– one that in fact
adversely affected counsel’s performance. (Doolin, at p. 421 [“[T]he high court’s
analysis of Sixth Amendment conflict of interest claims has evolved into one of
ineffective assistance of counsel, which requires a defendant to show counsel’s
deficient performance and a reasonable probability that but for counsel’s
deficiencies, the result of the proceeding would have been different.”].) When
determining whether counsel’s performance was “adversely affected” by the
purported conflict under this standard, we consider whether “ ‘counsel “pulled his
punches,” i.e., whether counsel failed to represent defendant as vigorously as he

                                          12
might have, had there been no conflict.’ ” (Id. at p. 418.) This analysis will often
turn on choices that a lawyer could have made, but did not make. In order to
determine whether those choices resulted from the alleged conflict of interest, we
must analyze the record to determine whether a lawyer who did not face the same
conflict would have made 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 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 (ii) whether
there may have been a tactical reason (other than the asserted conflict of interest)
that might have caused any such omission.’ [Citations.]”].)
       In his opening brief, Perez contends that Egan’s loyalty was divided
between Perez’s interests and Egan’s personal interest in currying favor with
Judge Spinetta. Specifically, Perez argues that because “Mr. Egan was ‘intending
to retire’ after this trial, his overriding concern would have been to go out with a
clear record.” To accomplish this task, Perez asserts that Egan “would be unlikely
to do anything at appellant’s trial which could cause Judge Spinetta to cast him in
an unfavorable light with regard to the state bar.” Perez also argues that “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.”
       Although Perez identifies these purported conflicts of interest in his
opening brief, Perez fails to specify how Egan’s divided loyalties affected the
defense. Perez’s reply brief then adds a list of specific actions he claims Egan
would have taken if Egan was not burdened by a conflict of interest. What none
of the examples establish is that Egan was burdened by an actual conflict of

                                          13
interest that adversely affected Perez’s defense. Perez first points to ways in
which Egan could have presented a stronger guilt phase case. He observes that
Egan “called only two witnesses” during the guilt phase and “made little effort to
discredit [prosecution witnesses] or point out numerous inconsistencies in their
testimony.” Perez presents no explanation for how the purported conflict —
Egan’s supposed desire to prove that he did not deserve state bar discipline for
providing ineffective assistance to another client — could possibly motivate Egan
to provide weaker assistance of counsel to Perez. If anything, that desire might
have motivated Egan to provide Perez more effective counsel. Because the record
contains nothing that links Egan’s choices to the alleged conflict, Perez has not
established “that the conflict of interest adversely affected his counsel’s
performance.” (Mickens v. Taylor (2002) 535 U.S. 162, 174.) 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 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.)
       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.’

                                          14
[Citation.]” (Doolin, supra, 45 Cal.4th at p. 418.) 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
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 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; see also People v. Gonzales and Soliz
(2011) 52 Cal.4th 254, 310 [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. (People v. Mickens, supra, 535 U.S. at p. 174.)

       2. Perez’s absence during discussions on Egan’s conflict of interest
       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 criminal proceedings
“that is critical to its outcome if his presence would contribute to the fairness of



                                          15
the procedure.” ’ ” (People v. Perry (2006) 38 Cal.4th 302, 311 (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 (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
[“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; Chapman v. California (1967) 386 U.S. 18, 24 [requiring error to be harmless
beyond a reasonable doubt]; People v. Watson (1956) 46 Cal.2d 818, 836 [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; Bradford, at p. 1357.)
       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 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.) Nonetheless, we need
not resolve whether Perez’s absence here constituted a violation of his



                                           16
constitutional right to be present because any such error was harmless beyond a
reasonable doubt.
       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 [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.” Moreover, approximately
one year later, Perez brought a motion under People v. Marsden (1970) 2 Cal.3d
118 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 purported lost chance to seek to remove his attorney does not constitute
prejudice.



                                         17
       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
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

                                          18
not mean that Perez lacked 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.
       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 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 [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 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 [“[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 [“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

                                          19
over the proceedings. (See Bradford, supra, 15 Cal.4th at p. 1358 [“[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
       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 months before
Perez’s trial began, Snyder was found guilty 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



                                           20
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; 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 [“A
judge is not disqualified to try a 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 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

                                          21
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 served to disqualify him from presiding over
Perez’s trial.

       4. September 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. 2014) 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.




                                          22
   B. Jury selection claims

       1. Restrictions on voir dire
       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 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.
       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.) 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.) In Famalaro, prospective jurors had commented 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


                                          23
that they “had prejudged defendant’s guilt and believed he should be executed.”
(Id. at p. 35.) 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, 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, quoting Code Civ. Proc., § 223.) In Perez’s
case, as in 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.
       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; see also Morgan v. Illinois (1992) 504 U.S. 719, 729-730.)
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 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

2       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).)

                                           24
reasonable bounds to expedite the trial.” (Avila, at p. 536.) Given this framework,
Perez has not established that the trial judge’s choice to limit counsel to 30
minutes per panel (in addition to 30-page written questionnaires and a preliminary
round of questioning by the judge) was an abuse of discretion in these
circumstances.

       2. Trial judge’s voir dire questions
       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 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 answer



                                          25
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.
       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 otherwise-
objectionable 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 ‘death-leaning’ jurors” does not
“suggest a lack of impartiality.” (People v. Mills (2010) 48 Cal.4th 158, 190; 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
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
       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



                                         26
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.)

       4. Removed juror
       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 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.
       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; see also People v. Lomax (2010) 49 Cal.4th 530, 589-91



                                          27
(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; § 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 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.) 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 [“The inquiry is whether ‘the trial court’s conclusion is
manifestly supported by evidence on which the court actually relied.’
[Citation.]”].)
       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, quoting People v.
Keenan (1988) 46 Cal.3d 478, 532.) 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 mitigating
circumstance evidence is.” Perez concedes that refusal to impose the death

                                          28
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.
       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 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;
People v. Allen and Johnson (2011) 53 Cal.4th 60, 69-79; People v. Wilson (2008)
44 Cal.4th 758, 813-821.) 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.”

                                           29
(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 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.
       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.) The trial court may exercise its section 1089 discretion to remove a juror in
the early 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.) 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

                                           30
in the deliberative process and so would not fully satisfy the concerns we
described in Fields. (See id. at p. 351; People v. Valles (1979) 24 Cal.3d 121,
124-128 [holding that an alternate 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 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
       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.) We do the same here.

   C. Prosecutorial misconduct

       1. Late disclosure of aggravation evidence
       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


                                           31
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 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.
       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 [“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 [“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 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



                                          32
prosecution gave Perez “notice of the evidence to be introduced . . . within a
reasonable period of time.” (§ 190.3; Jurado, at p. 136.)
       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, 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.) 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 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 either Brady or the analogous requirements of California’s
Constitution.

       2. Other prosecutorial misconduct
       Perez lists five other allegations of prosecutorial misconduct, advancing
brief arguments supporting each. Because we find unpersuasive each of these
claims for the reasons discussed below, we also reject Perez’s argument that the




                                         33
cumulative “effect of these individual instances of prosecutorial misconduct”
requires reversal.
       Perez first contends the prosecution elicited irrelevant victim impact
testimony of the victim’s husband and daughter during the guilt phase. The
Attorney General argues that defendant forfeited this argument because Perez
failed to object to this testimony at trial. To avoid forfeiture of a claim of
prosecutorial misconduct, a defendant must object and request an admonition.
(People v. Redd (2010) 48 Cal.4th 691, 746 [ “[A] defendant must object and
request an admonition in order to preserve a claim of prosecutorial misconduct,
and the objection must be made upon the same ground as that which the defendant
assigns as error on appeal.”].) Perez failed to do so on this claim and thus the
claim is forfeited. Even if not forfeited, the argument fails. The prosecution
committed misconduct, Perez argues, by asking the victim’s husband how long he
had known his wife and by presenting testimony from the victim’s daughter ––
who, Perez asserts, “did not witness anything, did not add anything to the State’s
case for guilt, and did not view the body.” The testimony of both the victim’s
husband and daughter was relevant to the prosecution’s guilt-phase case because it
helped narrate the circumstances of Mrs. Daher’s murder. The daughter’s
testimony established the timing of when the men allegedly broke into the home,
and the husband’s comments about his relationship to his wife helped frame his
observations about her routines. None of this testimony was improper. (See
People v. Salcido (2008) 44 Cal.4th 93, 151 [affirming verdict in capital case in
which a murder victim’s wife’s testimony during the guilt phase that the victim
recently changed his work schedule so she would not have to drive during her
pregnancy was not improper because the testimony “scarcely touched upon the
victim’s family life and did not relate the effect of defendant’s acts upon family
members”].)

                                          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 from what
amounted to a murder if he didn’t do it? Well, we know he didn’t do it, so he’s
not going to do that.” As with the first claim, Perez failed to object to this
statement or request a limiting instruction, and thus the claim is forfeited. (See
People v. Redd, supra, 48 Cal.4th at p. 746 [requiring objection and request for
admonition to preserve prosecutorial misconduct claim].) Even if not forfeited,
these statements were not improper: they were based on Hart’s testimony, rather
than the prosecutor’s independent knowledge or beliefs. (See People v. Frye
(1998) 18 Cal.4th 894, 971 [“[S]o long as a prosecutor’s assurances regarding the
apparent honesty or reliability of prosecution witnesses are based on the ‘facts of
[the] record and the inferences reasonably drawn therefrom, rather than any
purported personal knowledge or belief,’ her comments cannot be characterized as
improper vouching.”], disapproved on other grounds in Doolin, supra, 45 Cal.4th
at p. 421, fn. 22.)
       Perez third claims that the prosecution asked improper or argumentative
questions “designed to discredit” penalty-phase witness Susan Frankel, an attorney
who knew Perez through a mentorship program for California Youth Authority
parolees. Perez’s objections to those questions were sustained and defense
counsel did not request any further jury instruction about them. Even assuming
the prosecutor’s statements were improper, Perez fails to demonstrate prejudice.
(See People v. Riggs (2008) 44 Cal.4th 248, 298 [“Under California law, a
prosecutor commits reversible misconduct if he or she makes use of ‘deceptive or
reprehensible methods’ when attempting to persuade either the trial court or the
jury, and it is reasonably probable that without such misconduct, an outcome more
favorable to the defendant would have resulted.”].) Although the prosecution’s

                                          35
questions to Susan Frankel were potentially argumentative, the fact that the judge
sustained the objections to the questions and that Susan Frankel’s testimony
played a small role in the penalty phase of trial demonstrates a lack of prejudice
arising from any asserted error.
       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 in capital cases, where jurors hold a
person’s life in their hands. Nonetheless, Perez must demonstrate that the
prosecutor’s statements caused prejudice. (People v. Riggs, supra, 44 Cal.4th at p.
298.) 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 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.
       Fifth, the prosecutor asserted during the penalty-phase 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

                                         36
(2009) 46 Cal.4th 67, 94, abrogated on other grounds in People v. McKinnon
(2011) 52 Cal.4th 610.)

   D. Accomplice testimony
       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, quoting People v. Perry
(1972) 7 Cal.3d 756, 769.) 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 (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 [“[A]n accomplice’s testimony is not corroborated by the
circumstance that the testimony is consistent with the victim’s description of the



                                           37
crime or 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 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 entitled to little consideration when standing alone,” it tends to connect
Perez to much of the narrative established by O’Brien’s testimony. (See Romero
and Self, supra, 62 Cal.4th at p. 32.) 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.
       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

                                         38
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.) 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 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 never proffered evidence showing that Hogan was unavailable to
testify. (See Evid. Code, § 240, subd. (a).) Peterson had zero involvement with



                                         39
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 ligature strangulation and stabbing,”
Peterson answered yes.
       Perez claims Peterson’s testimony violated the confrontation clause because
it contained out-of-court, testimonial statements offered for their truth –– that is,
testimonial hearsay statements –– that Perez had no opportunity to confront.
Years after Perez’s trial, Crawford v. Washington (2004) 541 U.S. 36 established
that the confrontation clause bars the government from introducing such

                                           40
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; see also Michigan v. Bryant (2011) 562 U.S. 344, 354
[holding that “testimonial hearsay” statements must be excluded unless the
prosecution satisfies Crawford’s requirements], quoting Davis v. Washington, 547
U.S. 813, 826.)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 (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 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.”].)
       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 (Dungo), which addressed whether statements in autopsy
reports are testimonial. (Id. at pp. 618-621.) 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


3      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.)
No evidence of such a forfeiture is present here.

                                          41
Cal.4th 665, in which we addressed the circumstances where an expert’s
statements at trial constitute hearsay. (Id. at pp. 679-686.) 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 the
stabbings. We thus analyze the hearsay and confrontation clause issues with
respect to this narrowed challenge.
       We first address whether the challenged statements are hearsay. If an
expert testifies to case-specific 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.) 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; see also People v. Leon
(2015) 61 Cal.4th 569, 603 [“It is also clear that testimony 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 [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

                                          42
facts as true, and relied on their purported truth in forming his opinion. These
statements thus constitute hearsay under Sanchez.
       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; People v. Beeler (1995) 9 Cal.4th
953, 978-981), a separate question would remain: whether the statements
constitute testimonial hearsay under the confrontation clause as interpreted by
Crawford and its progeny (see Sanchez, supra, 63 Cal.4th at p. 685 & fn. 12). 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.) 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; People v. Pearson (2013) 56 Cal.4th 393, 463.)
       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.

4       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.

                                           43
       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
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 [“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.

   F. Other evidentiary issues

       1. Crime scene photo
       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 counsel objected,



                                         44
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. (People v. Roldan
(2005) 35 Cal.4th 646, 713, disapproved on other grounds in Doolin, supra, 45
Cal.4th at p. 421, fn. 22; see also People v. Bonilla (2007) 41 Cal.4th 313, 353-
354.) 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; see also People v. Pierce
(1979) 24 Cal.3d 199, 211 [“ ‘[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,
in which the Court of Appeal said that where “[a]utopsy photographs 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.) In
Marsh, the prosecutor sought to introduce photos that even he admitted were
“ ‘terribly gruesome and terribly upsetting.’ ” (Id. at p. 997.) 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.) 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.) But the Court of Appeal took care to reiterate that the trial
court maintains discretion to admit autopsy photos “even where they are only



                                          45
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
       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 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 disclosure to the jury of any agreement bearing on the
witness’s credibility, including the consequences to the witness of failure to testify
truthfully.” (People v. Fauber (1992) 2 Cal.4th 792, 823; see also People v. Frye,
supra, 18 Cal.4th at p. 971 [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




                                          46
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
       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.
       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 [“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



                                          47
speculative matter, and the trial court is vested with considerable discretion in
ruling on mistrial motions.”]; see also People v. McLain (1988) 46 Cal.3d 97, 113
[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 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.

       4. Coaching of Maury O’Brien
       Perez claims the trial court improperly “coached” Maury O’Brien by asking
O’Brien to clarify his answer to a question during his direct examination. O’Brien
testified that he, Snyder, and Perez boarded a BART train at the Balboa Park
station in San Francisco, intending to take the train to Fairfield. The men then got
off at the Orinda station to smoke cigarettes. O’Brien said that their plans changed
at some point after that stop. In response, the prosecutor asked, “Were you guys
still doing dope?” O’Brien answered that he and Snyder “did dope at BART
before we got on BART and after we got off BART before we started walking up



                                         48
to — back into the hills.” The trial judge then interrupted to ask, “At what BART
station?” “Lafayette BART station,” O’Brien replied. Perez claims that the
judge’s question helped O’Brien modify his testimony, depriving the defense of a
chance to exploit the inconsistency during cross-examination. Trial courts may
question witnesses to elicit material facts or clarify confusing or unclear
testimony, so long as the questions remain “ ‘ “temperate, nonargumentative, and
scrupulously fair” ’ ” and do not “convey to the jury the court’s opinion of the
witness’s credibility.” (People v. Cook (2006) 39 Cal.4th 566, 597.) The trial
judge did 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.

       5. Incidents during defendant’s prior incarceration
       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. We reject Perez’s claims too.

       6. Audience outburst
       During the cross-examination of a prosecution witness who claimed Perez
had raped her when she was a child, the witness’s father spoke up from the
audience. After the witness agreed with defense counsel that she had “mixed
feelings” about the issue, the trial transcript reflects a person in the audience



                                          49
saying, “Just like a 13 year old. You’re leading the witness on here.” The judge
started to respond but the man interrupted saying, “[M]y daughter was 13 years
old, your Honor.” The court ordered a recess, during which the speaker was
confirmed to be the witness’s father. He apologized for the outburst, and defense
counsel did not ask the trial judge to instruct the jury to disregard his comments.
Perez claims on appeal that “the court had a sua sponte duty to admonish and
inform the jury that they should disregard any comments from this spectator.” We
have held that a “defendant’s failure to object to and request a curative admonition
for alleged spectator misconduct waives the issue for appeal if the objection and
admonition would have cured the misconduct.” (People v. Hill (1992) 3 Cal.4th
959, 1000, overruled on other grounds in Price v. Superior Court (2001) 25
Cal.4th 1046, 1069, fn. 13.) Because defense counsel never asked for the judge to
comment on the spectator’s remarks, we see no reason to treat the judge’s failure
to comment on those remarks as grounds for reversal. Consistent with our past
decisions in this area, we consider Perez to have waived this issue.

       7. Prejudicial victim impact evidence
       Perez claims the trial judge should not have allowed certain victim impact
evidence during the penalty phase. The Eighth Amendment does not categorically
bar victim impact evidence. (Payne v. Tennessee (1991) 501 U.S. 808, 827.) To
the contrary, witnesses are permitted to share with jurors the harm that a capital
crime caused in their lives. (Id. at p. 825 [“[A] State may properly conclude that
for the jury to assess meaningfully the defendant’s moral culpability and
blameworthiness, it should have before it at the sentencing phase evidence of the
specific harm caused by the defendant.”].) Still, a defendant can challenge victim
impact evidence that renders a sentencing proceeding “fundamentally unfair.”
(Ibid.; see also id. at p. 831 (conc. opn. of O’Connor, J.).) In striking this balance



                                          50
between proper victim impact evidence and fundamentally unfair evidence, this
court has explained that the effects of a capital crime are relevant and admissible
as a circumstance of the crime unless the evidence “ ‘invites a purely irrational
response from the jury.’ ” (People v. Garcia (2011) 52 Cal.4th 706, 751.) Garcia
rejected the notion that admissible victim impact evidence is limited to the
“ ‘ “immediate injurious impact” ’ ” or to “effects ‘known or reasonably apparent’
to defendant 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.)
       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 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 caused by the crime in question.” (Payne v. Tennessee, supra, 501
U.S. at p. 825.)




                                          51
       8. Presence of victim’s family
       Perez claims that the presence of the victim’s family members in the
courtroom violated his right to due process and equal protection. Crime victims
and their families are routinely present at trials, and the Sixth Amendment right to
a public trial creates a “presumption of openness” that ordinarily allows victims or
other members of the public to observe trials. Where a party seeks exclusion of
the public, the presumption of openness can be rebutted only when the party
shows the public’s exclusion was “necessary to protect some ‘higher value’ such
as the defendant’s right to a fair trial, or the government’s interest in preserving
the confidentiality of the proceedings.” (People v. Woodward (1992) 4 Cal.4th
376, 383.) Given the ubiquity of crime victims and their families observing trials,
Perez’s generalized claims that the mere presence of the victim’s family was
improper “victim impact evidence” does not rebut the constitutional presumption
of open criminal trials.

   G. Instructional errors

       1. CALJIC Former No. 17.41.1
       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; see also People v. Wilson,


                                           52
supra, 44 Cal.4th at pp. 805-806.) 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
       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. 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 [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.) 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
       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
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 defense counsel finished the closing argument,



                                         53
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
       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.) 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); require jurors to find aggravating
factors beyond a reasonable doubt (see, e.g., id. at p. 489); 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); adequately narrow
prosecutorial discretion as to who is charged with capital crimes (see, e.g., People
v. Weaver (2001) 26 Cal.4th 876, 992); 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). 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) 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).

   I. Proportionality
       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



                                          54
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.) Even if we were to 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 upon any
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
       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 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 [“ ‘[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
[“ ‘International law does not prohibit a sentence of death rendered in accordance




                                          55
with state and federal constitutional and statutory requirements.’ ”].) We do the
same today.

   K. Lethal injection
       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.)

   L. Cumulative error
       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
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.




                                          56
                                        III.
       The judgment is affirmed.
                                                        CUÉLLAR, J.


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.


                                         57
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Perez
__________________________________________________________________________________

Unpublished Opinion
Original Appeal XXX
Original Proceeding
Review Granted
Rehearing Granted

__________________________________________________________________________________

Opinion No. S104144
Date Filed: March 1, 2018
__________________________________________________________________________________

Court: Superior
County: Contra Costa
Judge: Peter L. Spinetta

__________________________________________________________________________________

Counsel:

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.
Counsel who argued in Supreme Court (not intended for publication with opinion):

A. Richard Ellis
75 Magee Avenue
Mill Valley, CA 94941
(415) 389-6771

John H. Deist
Deputy Attorney General
455 Golden Gate Avenue, Suite 11000
San Francisco, CA 94102-7004
(415) 703-5855
