1

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

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________________________________ ____ )

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 p enalty. 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 circumstance s for the murder

count under Penal Code section 190.2 , subdivision ( a )(17), alleging that Mrs.
Dah er 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.2

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.
T he victim’s husband, Joe Daher , testified that he left home for his daughter Lauren’s softball game a round 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 he r 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 jew elry.
Law enforcement officers soon began recovering some of the stolen property and identifying suspects. Multiple w itnesses 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 li neup. 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 the3

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 hal f 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 Cos ta 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 t he 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 tw o 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 Fairfi eld 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 th e 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 they4

“ 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 Snyde r “pulling out a telephone co rd” 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 twist ed 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 t he 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
check ed into the Overnighter M o t el in Cordelia, where they split the stolen5

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 Ma bra 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 Franci sco. 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. D awson 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 arreste d 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.6

Th e 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 tightl y 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 g uilt phase. First, Lacy Harpe, O’Brien’s former girlfriend , testified that O’Brien had spoken to her about
th e 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 ca r 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 stipula ted that the eyewitness drew for Officer Whitla t ch 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 sever al uncharged prior crimes: a 1992 mugging, a rape of a minor from 1992 or 1993, an assault from 1994, and some violent incidents from w hen Perez was incarcerated. The prosecution also called Mrs. Daher’s two daughters, who described how Mrs.7

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 mitigati ng evidence from over a dozen witnesses who had known Perez at
different times in his life. The witness es 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 smok e 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 fir st 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 p resented 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
“ov erwhelmed 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.8

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 mu rder 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 as sistance of counsel to Eldridge . Perez’s case was assigned to Judge Spinetta on November 5, 1999. An appeal of Judge Spinett a ’s ineffectiveness ruling in Eldr i dge’s case was pendin g 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 th at 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 ongoin g 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.”9

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 Eldridg e’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 attitud e 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 tryi ng 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 b earing 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. E gan and Judge Spinetta
were in at that time because o f 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 had10

not yet been severed). Perez was not present at this meet ing , nor was any prosecutor. Judge Spinetta observed that if the Court of Appeal upheld his determination that Egan was ineffective at Eldri d ge’s trial then “I may have to report it, and there may be an investigation in t he 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 conn ection 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 seco nd 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 mo tion 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 affidavi t or declaration under penalty of perjury is duly filed or an oral statement under oath is duly made, thereupon and w ithout11

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 sect ion 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
confl ict 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 l ength 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 reaso ns. 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 decid e. 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 a ssigned 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

t hen held an evidentiary hearing in September 2000. Egan testified at the hearing,12

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 Septem ber 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 C onstitution guarantee criminal defendants the right to the a ssistance 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 (201 3) 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

- fr ee 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 co unsel’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 u nder this standard, we consider whether “ ‘counsel “ pulled his punches, ” i.e., whether counsel failed to represent defendant as vigorously as he13

might have, had there been no conflict. ’ ” ( I d. at p. 418. ) This analysis will often
turn on choices that a l awyer 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 choi ces 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 conf lict 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 . Specifical ly, Perez argues that because “Mr. Egan was ‘intend ing to retire’ after this trial , his overriding concern would have been to go out with a clear record.” T o accomplish th is task, Perez asserts that Egan “would be unlikely to do anything at appellant’s tr ial 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 tria l 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 sp ecific 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 of14

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

t estimony.” 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 conflic t 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 co u nsel’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 in terest) that might have caused any such omission.’15

[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 rec ord 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, u nsupported 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 discussi ons 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 Novemb er 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 proceeding s “that is critical to its outcome if his presence would contribute to the fairness of16

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

pro ceedings.’ ” ( 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 fullnes s 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. ( Peopl e v. Mendoza (2016) 62 Cal.4th 856, 901 [“ The high court has never s uggested that a defendant’ s improper absence from any critical stage of the proceedings constitutes structural error requiring reversal without regard to prejudice. ”].) Instead, we evalua te 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 reac hed in the absence of the e rror ” ]; 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 ne ed not resolve whether Perez’s absence here constituted a violation of his17

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
Novem ber 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 alleg ed 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 a ny 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 clien t.” 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 c ase. 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 coun sel 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.18

Perez also conte nds 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., § 17 0.6, 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 t he 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 wit h 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 t o 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 t he 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 gu ys 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 confli ct.” Nonetheless, just
because the limited record on a direct appeal was devoid of such information does19

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 fi led 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. B ecause 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 [hold ing 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 (2 002) 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 def ense 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 d oes 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 presided20

over the proceedings. ( See Bradford , supra , 15 Cal.4th at p. 1358 [“[D] efendant
has failed t o 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 res ulted 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 Proce dure 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 gu ilty 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 a nnouncing 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 “hor rendous.” 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

sentenc ing hearing. One story reported that “Spinetta disagreed” with the Snyder21

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 wit nesses 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 observanc e 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 me rely 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 tasked22

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 evidenc e 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. Sep tember 11 Jury selection in Perez’s trial began one day after the September 11 terrorist
attacks . He c laims that the “intense pro

- government patriotic fervor generated by this traumatic event meant that the defense was operating under a tremendous
disadv antage 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 th at 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 n ot indicate that he asked for a
continua nce . Perez fails to establish that his trial’s timing improperly biased his jurors or otherwise violated his constitutional rights.23

B. Jury selection claims
1. Restrictions on voir dire
Perez contends that “the trial co urt’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 restrict ed 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 al so 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 s aid 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 t o safe guard 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 ‘ab use 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].” ( I bid. ) Other jurors revealed24

that they “had prejudged defendant’s guilt and believed he should be executed.” ( Id. at p. 35.) Y et 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 t o take place ‘where practicable . . . in the presen ce 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 questionin g by attorneys. (See People v. Avila (2006) 38 Cal.4th 491, 533

- 53 6; 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 exami ne, 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 s ection 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, 2 018. (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 “reasona ble limits” to attorney voir dire is still “in the judge’s sound discretion.” ( Id. , subd. (b)(1).)25

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 inconsist ent 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 penal ty 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
innoc ent.” 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 th is 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 answer26

to a voi r 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

- leani ng’ 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 questionna ire 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

str ikes 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 his27

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 b y 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 hi s 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 ref

lect 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.” T he 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.4 th 530, 5 89

- 9128

( 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 ; § 10 89 [“ I f 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
view s 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 4 78, 532 .) The instructions in this case required jurors to decide whether the aggravating circumstances outweighed the mitigating
circumstance s and then determine whether death was an appropriate punishment.
Juror No. 7 had confirmed that he “could not e ver” 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 death29

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. S ection 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 wh ether 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 ina bility 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 wheth er 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 p hase 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 n ot recommend a death sentence.”30

( 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 Jenn ings

. But s ection 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 o f 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 pena lty 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 thro ughout 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 engaged31

in the deliberative process and so would not fully sat isfy 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 delibera tions].) 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, t he trial record contains evidence suffici ent 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 t his 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 aggravati on on32

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
prosec utor 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 o f 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 n otice, 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 th e 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 prosecut ion gave defense counsel informal notice . The prosecutor then conveyed
the name of the SFPD detective three months befo re 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
circumstance s , the trial court did not abuse its discretion in ruling that the33

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 excul patory evidence under Brady v. Maryland (1963) 373 U.S. 83, along with the analogous requirement of the
California C onstitution. Under both Brady and the California C onstitution, the prosecution is only required to disclose evidence that “ ‘helps the defe nse 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. R ather , Perez argues that it would be useful for impeachment and voir dire
purposes. T he 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

statem ents 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 s exually 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 the34

cumulative “effect of these individual instances of prosecutorial misconduct” require s reversal. Perez first contends the prosecution elicited irrelevant victim impact testimony of the victi m’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 ob ject 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 t he 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
h ad 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 daugh ter 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 gui lt 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 fa mily members”].)35

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 , 4 8 Cal.4th at p. 746 [requiring objection and request for admonition to preserve prosecutorial misconduct claim].) Even if not forfeited,

t hese statements were not improper: they were based on Hart’s testimony, rather than the prosecutor’s independent kno wledge 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 prosecut ion witnesses are based on the ‘ facts of [the] record and the inferences reasonably drawn therefrom, rather than any purporte d 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 im proper 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 defens e 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 wou ld have resulted.”].) Although the prosecution’s36

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 tr ial 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 stat ement 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 re ference 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 capit al cases, where jurors hold a person’s life in their hands. Nonetheless, Perez must demonstrate that the prosecutor’s statements caused prejudice. ( People v. Rigg s , supra , 44 Cal.4th at p.
298. ) I n this case, all that the prosecutor told jurors about th e 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 ju ry’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 def endant’s lack of remorse in committing a capital crime. (See, e.g., People v. Hawthorne37

(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 corroboratio n 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 t he 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 corroborat e 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 desc ription of the38

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 independent ly 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 st olen 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 n ot “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’B rien’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 again st 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 o ther
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 been3 9

awarded immuni ty. 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 hi s 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 credibilit y, 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

pre sent s 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 wo rked 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 anoth er 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 with40

Mrs. Daher’s autopsy, and his entir e 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 strang le d, 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. P eterson 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 Peters on 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 leth al 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 y our 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 such41

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

- examinati on, 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 Cra wford 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 unavail ability, 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 60 8 ( 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 preven t that declarant’s in

- court testimony. ( Giles v. California (2008) 554 U.S. 353, 377.) No evidence of such a forfeiture is present here.42

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 Attorne y 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 anal yze 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. 6 8 4.) But an expert may nonetheless “ rely on hearsay in forming an opinion, and may t ell 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, independe ntly 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 rela ted 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 these43

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 se parate 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 p p . 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 effe ct 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.44

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 th at 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 t here is a disconnect
between the statements Perez challenges from Peterson’s testimony

–– whic h only encompass factual statements about the victim’s body

–– and t his 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 i n 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 o f the challenged hearsay statements. So we conclude that any error was harmless beyond a reasonable doubt.
F. Other evidentiar y 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 evidenc e 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,45

claiming that one of the crime scene photos and one of the autopsy photos were duplicativ e 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 ground s 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] urd er 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 photo graph s 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 p p . 997

- 998.) In
Mar sh , the prosecutor sought to introduce photos that even he admitted were

“ ‘ terribly gruesome and terribly upsetting. ’ ” ( Id. at p. 997

. ) Fo r instance, one photo displayed the child victim’s exposed brain, including his dangling bloody scalp. In the bac kground 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 only46

cumulatively used to graphically portr ay 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 vi ctim’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 p hotos 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
immun ity 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 ju ry 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.” ( Peopl e 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 exchan ge for the district attorney’s promise to refrain47

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 contend s 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 sta ted 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
refer ences 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: D isclosing a defendant’s prior crim inality 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 a48

speculat ive 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 recor ded 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 accept able 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 a nd 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 Franci sco, 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’B rien answered that he and Snyder “did dope at BART before we got on BART and after we got off BART before we started walking up49

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 confusin g 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. I ncidents 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 t o 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 cl aimed 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 audience50

saying, “J ust 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 disreg ard 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 ground s 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 p enalty phase. The Eight h 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 specifi c harm caused by the defendant

. ”].) Still, a defendant can challenge victim impact evidence that renders a sentencing proceeding “fundamentally unfair.” ( I bid

. ; see also id. at p. 831 (conc. opn. of O’Connor, J.). ) In striking this balance51

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 ju ry. ’ ” ( 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 c ommitted.” ( 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 prose cution’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 sh e 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 offer ed 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.)52

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 Si xth 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 t he 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 a ll 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 punis hment 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 c ase 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 ,53

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 o n 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 conse nt 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], disappr oved 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 t hat 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 th e 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 finish ed the closing argument,54

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 pre viously 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 mitigat ing 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 eli gible 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 “t he 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 lis t (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 unconstitutiona l 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 our55

proportionality determination any comparison of defendant’s se ntence 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 punish ment 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 th e commission of the crime.” (§ 190.5.) As for O’Brien, he testified that he did not encourage or participate in
the ho micide 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 th ese 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 Ca l.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 accordance56

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.
Burn ey (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
inc lusion, 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 erro rs, nor their cumulative effect, warrants reversal.57 III. The judgment is affirmed

. CUÉLLAR, J.

WE CONCUR:

CANTIL

- SAKAUYE, C. J

. CHIN, J. CORRIGAN, J. LIU, J. KRUGER, J. JENKINS, J. *

* As sociate 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.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, R onald 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