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. 990453-3

____________________________________)

In November 2001, Joseph Andrew Perez, Jr., was sentenced to death for 

killing Janet Daher during a March 1998 robbery at Daher’s home. This is Perez’s 

automatic appeal. Perez alleges several defects both at his jury trial and in 

California’s administration of the death penalty. We affirm the judgment.

I.

On March 24, 1998, Janet Daher was found dead in her home in Lafayette, 

California. An indictment filed in Contra Costa County Superior Court on March 

24, 1999, charged Perez along with Lee Snyder and Maury O’Brien of four crimes 

related to Mrs. Daher’s death: murder, residential robbery, residential burglary, 

and vehicle theft. The indictment charged special circumstances for the murder 

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

Daher was killed during the commission of a robbery and burglary.1 The three 

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

 

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

The victim’s husband, Joe Daher, testified that he left home for his daughter 

Lauren’s softball game around 2:00 p.m. on the day of Mrs. Daher’s death. Mrs. 

Daher was home at the time, and Mr. Daher left the garage door open. According 

to Mr. Daher’s testimony, he answered a phone call from his other daughter Annie 

on his way home from the game. Annie had come home from school to find her 

mother missing and the contents of her mother’s purse strewn on the floor. Annie 

did not go upstairs to the master bedroom, and she eventually called law 

enforcement. The dispatcher told her that officers had found her mother’s vehicle

and that officers were on their way to the house. Two officers arrived and one 

went upstairs. He testified that he found Mrs. Daher’s body on the floor of the 

master bedroom with a phone cord tied “very tightly around her hands” “up to her 

neck, around her neck.” Mr. Daher later helped officers identify the property that 

was missing from the house, including his wife’s sport utility vehicle (SUV) and 

several thousands of dollars’ worth of jewelry.

Law enforcement officers soon began recovering some of the stolen 

property and identifying suspects. Multiple witnesses told officers that they saw 

three men near the Daher home on the afternoon of the murder. One of these 

witnesses testified that he drove within 25 feet of the men and then identified 

Perez in court. Another witness identified Perez in a photo lineup. Asked in court 

if Perez was who he saw and identified, the witness testified that he “can’t be 

exact, but yes, he looks a lot like him.” Mrs. Daher’s SUV was discovered in the 
3

yard of a roofing company in Cordelia, a small town near Fairfield. An employee 

of the roofing company testified that he found the SUV “up against the fence like 

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

records showing that Maury O’Brien checked into the Overnighter Motel (less 

than a half mile from where the SUV was found) on March 24, 1998. The owner 

of the motel later testified that O’Brien had registered at the motel at 3:31 p.m. on 

March 24.

Officers tracked O’Brien down about a month and a half after the murder, 

after the Contra Costa County Sheriff received a tip. The tip eventually led 

officers to Lacy Harpe, O’Brien’s former girlfriend, who told the officers that 

O’Brien may have been involved with the crime. At first O’Brien denied his 

involvement in the crime, but the officers told him they had evidence against him. 

O’Brien then quickly admitted that he was involved in the crime, though he 

insisted that he did not personally harm Mrs. Daher. O’Brien testified against 

Perez at trial, describing how the men came to break into the Daher home and kill 

Mrs. Daher. He testified that he and Lee Snyder were plotting to rob a drug dealer 

and discussed the plan with their friend Jason Hart, who introduced the two to 

Perez. O’Brien told jurors that he met with Perez every day in the two or three 

days before the murder. O’Brien was not planning for the robbery of the drug 

dealer to take place on March 24, but Perez “showed up unexpectedly” that 

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

dealer in Fairfield and decided to take the Bay Area Rapid Transit (BART). 

According to the testimony, the men boarded BART at the Balboa Park 

station in San Francisco. They planned to get off in either Pleasant Hill or Walnut 

Creek, but their plans changed. Instead the men debarked the train at the Orinda 

station to smoke cigarettes. O’Brien testified that Snyder and Perez “were looking 

out into the hills over there between Orinda and Lafayette” and decided that they 
4

“wanted to rob a house instead of going up to Fairfield.” The men walked a short 

distance to some nearby large houses, and began searching for “whatever one 

would be easiest to break into.” O’Brien was carrying a knife, Snyder had a 

handgun, and Perez was unarmed. The group saw a house with its garage door 

open. The three went inside, and Perez closed the garage door. They saw Mrs. 

Daher as soon as they entered the house. O’Brien testified that Perez “put his 

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

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

rooms and [Perez] went through the upstairs rooms.” Mrs. Daher told O’Brien 

that her daughter “was coming home in 15 minutes,” so O’Brien “yelled out to 

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

used their names when he yelled this, and Perez responded that O’Brien “would 

have to kill the victim” since he “spoke up and messed it all up.”

O’Brien also testified that Mrs. Daher “was very cooperative” throughout 

the robbery. Snyder and Perez took Mrs. Daher upstairs. O’Brien testified that he 

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

Snyder “pulling out a telephone cord” and Perez “on the other side of the bed” 

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

“the telephone cord wrapped around [her].” Perez “was pulling really hard on the 

telephone cord” and Mrs. Daher’s “neck was twisted back.” O’Brien testified that 

Perez told him “to go get a knife from the kitchen,” so O’Brien handed over the 

knife that was in his pocket. Mrs. Daher was “lying motionless face down by her 

bed” as Perez walked over and stabbed her “many times” with the knife “[a]ll over 

her body and her head and neck area.” Perez later handed O’Brien his knife back.

The men found Mrs. Daher’s SUV in the garage with the keys inside. 

Perez drove. The men drove toward Fairfield but then abandoned the vehicle and 

checked into the Overnighter Motel in Cordelia, where they split the stolen 
5

property. O’Brien cleaned the knife in the bathroom and later threw it in some 

bushes. They then went to the home of an acquaintance named Justin Mabra, 

where they did cocaine with Mabra and his girlfriend Megan McPhee. Soon their 

friend Jason Hart (the one who had introduced O’Brien and Snyder to Perez) 

picked the three of them up in his car. In the car with Hart was Deshawn Dawson. 

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

Mabra, McPhee, Dawson, and Hart all testified against Perez as well, 

corroborating several aspects of O’Brien’s narrative. Mabra testified that he and 

McPhee encountered Perez, O’Brien, and Snyder in Fairfield in late March 1998, 

around the time of the murder. Mabra did not know Perez from before but 

identified him both at a live lineup and in court. McPhee also identified Perez 

both in a live lineup and in court. Dawson testified that he was in the car when 

Hart drove the men to San Francisco. Dawson told jurors that the three were 

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

Hart began his testimony by telling jurors that he had been granted 

immunity from prosecution. He testified that O’Brien and Snyder had told him 

about their plan to rob a drug dealer, and Perez wanted to join because “he was 

broke and he needed some money.” Perez later told him that “they robbed a lady” 

and strangled her to death with a phone cord. Hart drove the three men to 

Snyder’s home, where they showed Hart the jewelry they had stolen. Hart was 

especially interested in buying a large diamond ring that Snyder was carrying, but 

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

ring from Perez. When officers arrested Snyder, they found him carrying a gold 

necklace and several rings that the Daher family identified as belonging to them. 

The same day, officers searched Snyder’s home and found property from the 

Daher home, including more jewelry and a mobile phone. 
6

The prosecution also called two witnesses to describe Mrs. Daher’s 

autopsy. The first was Steven Ojena, a criminalist who worked at the Contra 

Costa County Sheriff’s crime laboratory. During the autopsy, Ojena could see the 

telephone cord “stretched tightly around her neck” and “wrapped around her 

wrists,” “binding her hands behind her back.” He also testified that Mrs. Daher 

had “ligature marks, that is, impression marks on her neck,” and he took 

photographs of the body during the autopsy. Next was Brian Peterson, a forensic 

pathologist who worked for a private company in Fairfield that had a contract with 

Contra Costa County to perform autopsies. Another pathologist from the company 

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

Peterson described the autopsy findings and testified to his opinion about the cause 

of death. 

The defense only called two witnesses in the guilt phase. First, Lacy 

Harpe, O’Brien’s former girlfriend, testified that O’Brien had spoken to her about 

the murder before he was arrested. O’Brien had given her some jewelry, and she 

explained that he told her at some point that “him and [Snyder] and this other guy 

went . . . inside this lady’s garage that was open and into the house and killed her 

for her car and $20 and broke her neck.” Second, Ken Whitlatch (one of the two 

officers who came to the Daher home and met Annie) testified that he interviewed 

one of the eyewitnesses who had seen the three men walking in the neighborhood. 

The parties then stipulated that the eyewitness drew for Officer Whitlatch a picture 

of the tattoo he saw on the right side of Perez’s neck.

The jury found Perez guilty on all four charged counts. The penalty phase 

began a week later. The prosecution presented evidence of several uncharged

prior crimes: a 1992 mugging, a rape of a minor from 1992 or 1993, an assault 

from 1994, and some violent incidents from when Perez was incarcerated. The 

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

mitigating evidence from over a dozen witnesses who had known Perez at 

different times in his life. The witnesses chronicled how Perez’s teenaged parents 

abused and neglected him, as well as how Perez had from a young age been 

surrounded by drugs and violent crime. His parents sold and used drugs in front of 

him. Perez’s father would sometimes blow marijuana smoke into Perez’s face 

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

was a toddler. Perez attended four different schools from kindergarten through 

first grade, and his numerous absences from school forced him to repeat the first 

grade. As a teenager, Perez served as a lookout while his father committed 

burglaries and other crimes, often stealing money to buy drugs. When Perez was 

nine, his mother was living with a man who sold drugs from his home. Perez 

spent a night at the house when two armed men broke in, demanding money and 

drugs. The men tied up Perez and his mother, threatening to shoot Perez in the 

head. 

Perez later experienced more stability living with his grandmother, but she 

died of a stroke when Perez was 12. Perez soon began committing crimes and 

went in and out of foster care, youth homes, and work camps before he was 

committed at age 14 to the California Youth Authority (CYA). Perez was one of 

the youngest wards in the CYA system at the time. The defense presented 

testimony from an expert on juvenile detention facilities, who described violence, 

abuse, and chaos in CYA facilities during this period. The jury also heard from a 

psychologist who characterized Perez’s childhood as “remarkably unstable” and 

“overwhelmed with chaos, violence, and loss.” She explained that “dissocial 

behavior was the norm” in Perez’s family. The state’s rebuttal evidence consisted 

of new testimony on the uncharged prior crimes. 
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 murder 

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

vehicle theft. 

II.

A. Pretrial issues

1. Counsel’s conflict of interest 

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

because Egan had a few years earlier represented a client named Yvonne Eldridge 

in a criminal trial before Perez’s trial judge, Judge Peter Spinetta. Judge Spinetta 

ruled in the Eldridge case that Egan rendered ineffective assistance of counsel to 

Eldridge. Perez’s case was assigned to Judge Spinetta on November 5, 1999. An 

appeal of Judge Spinetta’s ineffectiveness ruling in Eldridge’s case was pending in 

the Court of Appeal at that time. Then, several months before Perez’s trial began, 

the Court of Appeal remanded Eldridge’s case for further factual findings. Judge 

Spinetta held an evidentiary hearing and then ruled again that Egan had been 

ineffective at Eldridge’s trial. The appeal of this ruling was pending throughout

Perez’s trial. If the Court of Appeal upheld Judge Spinetta’s ruling, the judge may 

have had to file a report with the state bar detailing Egan’s conduct in Eldridge’s 

case. (See Bus. & Prof. Code, § 6086.7, subd. (a)(2).) Perez argues that this 

ongoing connection between Egan and Judge Spinetta established a conflict of 

interest because Egan’s “overriding concern would have been in controlling and 

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

vigorously defending his client.” 
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 codefendant Lee Snyder was not present either, nor was any prosecutor present. 

Egan and Judge Spinetta discussed whether the assignment of the case to the judge 

was appropriate in light of the judge’s ruling that Egan had been ineffective at 

Yvonne Eldridge’s trial. Egan shared that he found out about Judge Spinetta’s 

ruling in Eldridge’s case after a reporter called him. Egan also said that the 

“whole thing is definitely the worst thing that’s ever happened to me in my 

career.” Judge Spinetta expressed sympathy and told Egan that the pending appeal 

in Eldridge’s case would have “absolutely no impact” on his attitude toward Egan 

at Perez’s trial.

Throughout the conversation, Egan repeatedly stated that he preferred for 

Perez to be tried before Judge Spinetta. He explained that “the whole reason” he 

wanted to meet with the judge to discuss the issue at this early stage is that he did 

not want the case transferred to another judge. Egan explained that his “objective 

is to end up being comfortable trying the case in this court.” He added: “I want to 

be in this court and I want to clear the air on it.” The judge suggested that Egan 

discuss the issue with his client. Egan implied he would and then reiterated: 

“[M]y desire, whether or not it has any bearing or anything, is to have the case 

stay here.” The judge concluded by observing that “we need the client and the 

D.A. here,” lest someone in the future alleges that the case “shouldn’t have 

proceeded in that department, given the situation that Mr. Egan and Judge Spinetta 

were in at that time because of the Eldridge conflict.”

A few days later, on November 10, 1999, Judge Spinetta met again with 

Egan, this time with counsel for co-defendant Snyder also present (the trials had 
10

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

prosecutor. Judge Spinetta observed that if the Court of Appeal upheld his 

determination that Egan was ineffective at Eldridge’s trial then “I may have to 

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

though that this possibility would not affect his attitude toward Perez’s trial. He 

also observed that he was not putting Egan “in any conflict situation” because “the 

only thing that [Egan] could do to impress me in connection with [Perez’s trial] 

would be the sort of thing that’s consistent with the interest of your clients. And 

that is effective representation of your current client.” Egan responded that he did 

not think he had been placed “in a conflict situation.” The transcript does not 

appear to indicate if Judge Spinetta ever asked Egan if he had discussed the issue 

with Perez since the last meeting, and Egan did not say anything about this 

question on the record. 

Judge Spinetta referred throughout this second meeting to the possibility of 

Egan or Perez filing a Code of Civil Procedure section 170.6 motion against the 

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

action . . . when it is established as provided in this section that the judge . . . is 

prejudiced against a party or attorney or the interest of a party or attorney 

appearing in the action or proceeding.” (Code Civ. Proc., § 170.6, subd. (a)(1).) 

Prejudice for purposes of section 170.6 is established by a motion supported by an 

“affidavit or declaration under penalty of perjury, or an oral statement under oath” 

that the assigned judge “is prejudiced against a party or attorney . . . so that the 

party or attorney cannot, or believes that he or she cannot, have a fair and 

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

“motion is duly presented, and the affidavit or declaration under penalty of perjury 

is duly filed or an oral statement under oath is duly made, thereupon and without 
11

any further act or proof,” section 170.6 requires for a different judge to be 

assigned. (Id., subd. (a)(4).)

Judge Spinetta made several references to Code of Civil Procedure section 

170.6 throughout his second meeting with Egan. The judge began the meeting by 

noting that the “first” issue that needed to be discussed “is really a nonissue, and 

that is whether [Perez] should exercise a 170.6 in this matter, for any reason.” He 

explained that the question of whether Perez or Egan should file a section 170.6 

motion was “of course, for you and your client to decide” and “I don’t really get 

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

whether his potential obligations with regards to the Eldridge case created a 

conflict of interest. But some time later, the judge again brought up section 170.6, 

suggesting that the discussion the two men had been having about the potential 

conflict “is separate from the 170.6.” Egan responded, “Right.” The judge then 

reiterated at length that he did not want to discuss the topic of section 170.6: “I 

don’t really want to comment too much about the 170.6, other than to say that’s 

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

matter, for other reasons. And I really should not talk about that. Because, quite 

frankly, I don’t want any appearance that I’m addressing those matters. Those are 

not proper matters, I don’t think, for counsel and court to talk about. Those are 

things for you guys to decide. You have a statutory right, and judges understand 

that. There’s a right to do those things, and there’s no problem one way or the 

other, insofar as anybody’s concerned — so far as I’m concerned.” 

In April 2000 –– five months after Perez’s case was assigned to Judge 

Spinetta and long before Perez’s trial began in September 2001 –– the Court of 

Appeal issued an unpublished opinion reversing Judge Spinetta’s ineffective 

assistance ruling and remanding the case for new factual findings. Judge Spinetta 

then held an evidentiary hearing in September 2000. Egan testified at the hearing, 
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 September 2002, nearly a year after Perez’s trial was completed. 

This time, the court affirmed Judge Spinetta’s judgment in full.

b) Analysis

Both the United States Constitution and the California Constitution 

guarantee criminal defendants the right to the assistance of counsel unburdened by 

any conflicts of interest. (See People v. Doolin (2009) 45 Cal.4th 390, 417 

(Doolin).) Essentially, a claim of conflict of interest constitutes a form of 

ineffective assistance of counsel. (Ibid.; People v. Mai (2013) 57 Cal.4th 986, 

1009-1010 [“[A] claim of conflicted representation is one variety of claim that 

counsel provided ineffective assistance.”]; Doolin, at p. 419 [“Under our state 

Constitution, the right to counsel includes the correlative right to conflict-free 

representation.”].) In order to demonstrate a violation of the federal and state 

constitutions based on a conflict of interest, a defendant must show that his or her

counsel was burdened by an “actual” conflict of interest –– one that in fact 

adversely affected counsel’s performance. (Doolin, at p. 421 [“[T]he high court’s 

analysis of Sixth Amendment conflict of interest claims has evolved into one of 

ineffective assistance of counsel, which requires a defendant to show counsel’s 

deficient performance and a reasonable probability that but for counsel’s 

deficiencies, the result of the proceeding would have been different.”].) When 

determining whether counsel’s performance was “adversely affected” by the 

purported conflict under this standard, we consider whether “ ‘counsel “pulled his 

punches,” i.e., whether counsel failed to represent defendant as vigorously as he 
13

might have, had there been no conflict.’ ” (Id. at p. 418.) This analysis will often 

turn on choices that a lawyer could have made, but did not make. In order to 

determine whether those choices resulted from the alleged conflict of interest, we 

must analyze the record to determine whether a lawyer who did not face the same 

conflict would have made different choices as well as whether counsel’s choices 

were the product of tactical reasons rather than the alleged conflict of interest. 

(See ibid. [“ ‘[W]here a conflict of interest causes an attorney not to do something, 

the record may not reflect such an omission. We must therefore examine the 

record to determine (i) whether arguments or actions omitted would likely have 

been made by counsel who did not have a conflict of interest, and (ii) whether 

there may have been a tactical reason (other than the asserted conflict of interest) 

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

In his opening brief, Perez contends that Egan’s loyalty was divided 

between Perez’s interests and Egan’s personal interest in currying favor with 

Judge Spinetta. Specifically, Perez argues that because “Mr. Egan was ‘intending 

to retire’ after this trial, his overriding concern would have been to go out with a 

clear record.” To accomplish this task, Perez asserts that Egan “would be unlikely 

to do anything at appellant’s trial which could cause Judge Spinetta to cast him in 

an unfavorable light with regard to the state bar.” Perez also argues that “Egan’s 

overriding concern would have been in controlling and limiting the damage 

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

his client.” 

Although Perez identifies these purported conflicts of interest in his 

opening brief, Perez fails to specify how Egan’s divided loyalties affected the 

defense. Perez’s reply brief then adds a list of specific actions he claims Egan 

would have taken if Egan was not burdened by a conflict of interest. What none 

of the examples establish is that Egan was burdened by an actual conflict of 
14

interest that adversely affected Perez’s defense. Perez first points to ways in 

which Egan could have presented a stronger guilt phase case. He observes that 

Egan “called only two witnesses” during the guilt phase and “made little effort to 

discredit [prosecution witnesses] or point out numerous inconsistencies in their 

testimony.” Perez presents no explanation for how the purported conflict —

Egan’s supposed desire to prove that he did not deserve state bar discipline for 

providing ineffective assistance to another client — could possibly motivate Egan 

to provide weaker assistance of counsel to Perez. If anything, that desire might 

have motivated Egan to provide Perez more effective counsel. Because the record 

contains nothing that links Egan’s choices to the alleged conflict, Perez has not 

established “that the conflict of interest adversely affected his counsel’s 

performance.” (Mickens v. Taylor (2002) 535 U.S. 162, 174.) Perez may end up 

introducing new evidence in post-conviction proceedings that link Egan’s choices 

to the alleged conflict of interest. But on the record before us at this time, we have 

no basis to “conclude that the only explanation for counsel’s failure to” call 

additional witnesses and discredit the prosecution’s evidence more vigorously “is 

the asserted conflict of interest.” (Doolin, supra, 45 Cal.4th at p. 423.) 

Although some of Egan’s choices in the case may at least arguably appear 

consistent with the goal of remaining in the judge’s good graces, alternative ––

and legally permissible –– rationales are also consistent with Egan’s behavior. 

Even if we assume Egan faced incentives to alter his behavior to remain in the 

judge’s good graces, the question remains whether such incentives created a 

conflict of interest that adversely affected counsel’s performance. To answer that 

question, we must “ ‘examine the record to determine (i) whether arguments or 

actions omitted would likely have been made by counsel who did not have a 

conflict of interest, and (ii) whether there may have been a tactical reason (other 

than the asserted conflict of interest) that might have caused any such omission.’
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 record addresses whether a different attorney would 

have made other choices or whether tactical considerations informed Egan’s 

decisions. For example, for Egan’s failure to file a Code of Civil Procedure 

section 170.6 motion, the record at this time does not even contain evidence 

establishing that either Egan or Perez “believe[d]” that Perez would not “have a 

fair and impartial trial . . . before the judge” as would have been required for the 

affidavit supporting the motion. (Code Civ. Proc., § 170.6, subd. (a)(2).) Because 

“[t]he record does not show that a different strategy would likely have been 

adopted by competent, unconflicted counsel,” “it fails to demonstrate either 

conflict-driven adverse performance, or ineffective assistance, on counsel’s part.” 

(People v. Mai, supra, 57 Cal.4th at p. 1014; see also People v. Gonzales and Soliz

(2011) 52 Cal.4th 254, 310 [rejecting claims that a purported conflict of interest 

caused counsel to perform adversely because the “contentions reflect pure 

speculation, unsupported by anything in the record”].) Perez fails to establish that 

any “conflict of interest adversely affected his counsel’s performance,” thus his 

claim must be denied. (People v. Mickens, supra, 535 U.S. at p. 174.)

2. Perez’s absence during discussions on Egan’s conflict of interest

Perez argues that the trial court violated his federal and state constitutional 

right to be present at judicial proceedings critical to the outcome of his case, 

because Perez was absent at the November 5, 1999, and November 10, 1999, 

discussions about Egan’s supposed conflict of interest, discussed in detail in the 

prior section. A criminal defendant has the right under the Sixth Amendment and 

the due process clause to be “ ‘present at any stage of the criminal proceedings 

“that is critical to its outcome if his presence would contribute to the fairness of 
16

the procedure.” ’ ” (People v. Perry (2006) 38 Cal.4th 302, 311 (Perry).) Our 

state Constitution similarly provides a “ ‘right to be personally present at critical 

proceedings.’ ” (Ibid.) In contrast, a defendant has no right to be present at 

discussions on questions of law outside the jury’s presence or at proceedings 

where the defendant’s presence does not have a “ ‘ “ ‘reasonably substantial 

relation to the fullness of his opportunity to defend against the charge.’ ” ’ 

[Citations.]” (People v. Bradford (1997) 15 Cal.4th 1229, 1357 (Bradford).) 

Although the exclusion of the defendant from a critical proceeding constitutes 

error, it is not structural error. (People v. Mendoza (2016) 62 Cal.4th 856, 901 

[“The high court has never suggested that a defendant’s improper absence from 

any critical stage of the proceedings constitutes structural error requiring reversal 

without regard to prejudice.”].) Instead, we evaluate federal constitutional error 

for harmlessness under the Chapman beyond a reasonable doubt standard, and 

state law error under the Watson reasonably probable standard. (Id. at pp. 901-

902; Chapman v. California (1967) 386 U.S. 18, 24 [requiring error to be harmless 

beyond a reasonable doubt]; People v. Watson (1956) 46 Cal.2d 818, 836 [finding 

prejudice unless it is “reasonably probable that a result more favorable to the 

appealing party would have been reached in the absence of the error”]; see also

Perry, at p. 312; Bradford, at p. 1357.) 

Perez contends that the November 5 and November 10 discussions were 

critical stages of the proceedings –– and that Perez’s presence would have 

contributed to the fairness of those proceedings. We have previously 

acknowledged that a criminal defendant “may be entitled to be present at a 

conference called to consider whether to remove his counsel for conflict of interest 

or any other reason.” (Perry, supra, 38 Cal.4th at p. 313.) Nonetheless, we need 

not resolve whether Perez’s absence here constituted a violation of his 
17

constitutional right to be present because any such error was harmless beyond a 

reasonable doubt. 

What Perez argues is that he suffered prejudice because his presence at the 

November 5 and November 10 discussions would have enabled him to seek 

removal of either his attorney because of a conflict of interest, or Judge Spinetta 

by making a motion under Code of Civil Procedure section 170.6. Yet no 

prejudice arises from Perez’s alleged lost opportunity to remove his attorney. A 

review of the circumstances associated with the proceeding in Perez’s case shows 

why. During the discussions on the conflict of interest issue, Judge Spinetta 

clearly stated that he was not putting Egan “in any conflict situation” because “the 

only thing that [Egan] could do to impress me in connection with [Perez’s trial] 

would be the sort of thing that’s consistent with the interest of your clients. And 

that is effective representation of your current client.” Moreover, approximately 

one year later, Perez brought a motion under People v. Marsden (1970) 2 Cal.3d 

118 to remove his counsel. That motion raised Judge Spinetta’s prior finding that 

Egan provided ineffective assistance of counsel in the Eldridge case. But Judge 

Spinetta found no conflict of interest and stated that “there was nothing [in the 

Marsden proceedings] that made it appear to the court that Mr. Egan might be in 

some conflict of interest situation warranting the appointment of another counsel 

to address issues of ineffective assistance of counsel.” From this record, we can 

glean that even if Perez had been present at the November 5 and November 10 

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

trial court would have denied such a motion. We hold above that Perez fails to 

demonstrate that his counsel had an actual conflict of interest. Accordingly, 

Perez’s purported lost chance to seek to remove his attorney does not constitute 

prejudice.
18

Perez also contends that if he had been present at the November 5 and 

November 10 discussions, he might have “exercise[d] a peremptory challenge” 

under Code of Civil Procedure section 170.6. Section 170.6 allows a defendant to 

bring a motion –– supported by an affidavit or declaration –– alleging that the 

assigned judge “is prejudiced against a party or attorney” such that the party or 

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

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

long as the requirements for filing such a motion are followed, section 170.6 

requires a different judge to be assigned in lieu of the originally assigned one. 

(Id., subd. (a)(4).) According to Perez, had he been present at the November 5 and 

November 10 discussions, he would have learned of the conflict of interest issue 

and might have filed a section 170.6 motion. But irrespective of Perez’s presence 

at the proceedings, Egan was under an obligation to raise these issues with Perez. 

(See Rules Prof. Conduct, rule 3-500 [“A member shall keep a client reasonably 

informed about significant developments relating to the employment or 

representation.”]; ABA Model Rules Prof. Conduct, rule 1.4(b) [“A lawyer shall 

explain a matter to the extent reasonably necessary to permit the client to make 

informed decisions regarding the representation.”].) Indeed, Judge Spinetta urged 

Egan to consult with Perez multiple times about whether Perez wished to file a 

section 170.6 motion. During the discussion on November 10, for example, Judge 

Spinetta stated the following: “I don’t really want to comment too much about the 

170.6. . . . Those are not proper matters, I don’t think, for counsel and court to 

talk about. Those are things for you guys to decide.” Perez argues in his 

supplemental briefing that “there is nothing in the record to indicate appellant was 

made aware of defense counsel’s concern over the fairness of Judge Spinetta or 

Judge Spinetta’s concern over counsel’s potential conflict.” Nonetheless, just 

because the limited record on a direct appeal was devoid of such information does 
19

not mean that Perez lacked knowledge of the alleged conflict of interest. And 

even if Perez had been present, we do not know whether he would have filed a 

section 170.6 motion. 

Indeed, even now Perez only states it is “reasonably possible that he would 

have insisted that Judge Spinetta be recused” –– and does not state that he would

have filed a Code of Civil Procedure section 170.6 motion. Because the 

discussion between the trial court and Egan resulted in the conclusion that no 

conflict of interest existed, it is unclear why Perez would have developed a 

sufficient belief of Judge Spinetta’s prejudice to file a section 170.6 motion. 

Indeed, such a motion requires a sworn statement, under penalty of perjury, that 

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

Perez suffered prejudice in this direct appeal. (Cf. People v. Davis (2005) 36 

Cal.4th 510, 533 [holding lack of presence harmless where counsel had “ample 

opportunity to discuss” the defendant’s thoughts before a hearing and that “there is 

no way on this record to determine, had defendant been present at the hearing,” 

what information the defendant would have provided].) 

Nor are we persuaded Perez suffered prejudice because he lost the 

opportunity to replace Judge Spinetta. (See People v. Lee (2002) 95 Cal.App.4th 

772, 780 [“[D]efendant cannot show prejudice. . . . He has not shown the loss of 

his [Code of Civil Procedure section] 170.6 motion deprived him of a defense nor 

has he submitted even one example of prejudicial treatment by [the presiding 

judge].”]; In re James H. (1981) 121 Cal.App.3d 268, 273 [“His defense was one 

of alibi, and it was fully presented by himself, his mother and stepfather. . . . 

Under the circumstances of this case, the failure to properly invoke the Code of 

Civil Procedure section 170.6 challenge was not prejudicial . . . .”].) Perez does 

not point to any action or decision by Judge Spinetta that shows prejudice, or that 

shows that the outcome would have changed if some other judge had presided 
20

over the proceedings. (See Bradford, supra, 15 Cal.4th at p. 1358 [“[D]efendant 

has failed to explain how his attendance during the testimony of these witnesses 

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

reject Perez’s contentions that Judge Spinetta was biased. Accordingly, if any 

constitutional error resulted from Perez’s absence from the November 5 and 

November 10 discussions, it was harmless beyond a reasonable doubt. 

3. Trial judge’s disqualification

Later during pretrial proceedings, Perez moved to disqualify Judge Spinetta 

under Code of Civil Procedure section 170.1 based on statements the judge made 

at co-defendant Lee Snyder’s trial. The motion was denied by a separate judge 

assigned to adjudicate it. Perez claims this was an error. Several months before 

Perez’s trial began, Snyder was found guilty at a jury trial before Judge Spinetta. 

In March 2001, about six months prior to the start of Perez’s trial, Judge Spinetta 

denied Snyder’s motion for a new trial. While announcing that ruling, the judge 

made several statements about the strength of the prosecution’s evidence. Some 

of this same evidence would later be used against Perez too. Judge Spinetta first 

stated that he was “persuaded” that “Mr. O’Brien was telling the truth in all 

material regards.” He also said that the evidence to support the verdict was 

“substantial.” Later, when sentencing Snyder, Judge Spinetta characterized the 

murder as “senseless,” “vicious,” “heinous,” “done with premeditation,” “cold,” 

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

“horrendous.” The judge further stated that “the evidence strongly points to the 

fact that Mrs. Daher was dead at the time she was stabbed.” 

Within weeks of Snyder’s sentencing, Perez filed a motion to disqualify 

Judge Spinetta. Attached to the motion were newspaper stories about Snyder’s 

sentencing hearing. One story reported that “Spinetta disagreed” with the Snyder 
21

family’s claims of innocence, “saying the evidence supported a conviction.” The 

story also referred to Judge Spinetta saying that “O’Brien told the truth about the 

material facts.” Another story observed that the judge “[b]rush[ed] aside a claim 

of innocence.” Perez’s motion to disqualify was assigned to a separate judge. 

Judge Spinetta filed a written response explaining that the “import” of his remarks 

was that he found O’Brien’s testimony “at the Snyder trial to be credible, in the 

light of the cross-examination, and the evidence presented, there.” Judge Spinetta 

also said he did “not consider [him]self precluded in any way from coming to a 

different judgment if warranted by the evidence at the Perez trial.” 

This court long ago explained that a trial judge may hear a case even if he 

or she has expressed an adverse impression of a party that was “based upon actual 

observance of the witnesses and the evidence given during the trial of an action.” 

(Kreling v. Superior Court (1944) 25 Cal.2d 305, 312; see also ibid. [“[W]hen the 

state of mind of the trial judge appears to be adverse to one of the parties but is 

based upon actual observance of the witnesses and the evidence given during the 

trial of an action, it does not amount to that prejudice against a litigant which 

disqualifies him . . . .”]; In re Richard W. (1979) 91 Cal.App.3d 960, 968 [“A 

judge is not disqualified to try a case merely because he previously, in a separate 

proceeding, heard a case of a coparticipant or passed on the application of a 

codefendant for probation. [Citations.]”].) Though a judge in certain 

circumstances may develop an excessive or improper bias against a defendant 

because of evidence about the defendant presented in another case, Judge 

Spinetta’s comments at Snyder’s trial suggest no such bias. The judge simply 

stated that he found the live testimony and other evidence against Snyder to be 

sufficiently persuasive. Not once did the judge refer to any evidence or 

information beyond what those trial witnesses elucidated through their testimony. 

Nor did the judge’s comments go beyond the two narrow questions he was tasked
22

with answering: whether the evidence was sufficient to establish guilt and what 

penalty suited the crime. While there may have been some risk that the jurors at 

Perez’s trial would have read media reports about Judge Spinetta’s assessment of 

the evidence at Snyder’s trial, the proper way to alleviate this concern was via jury 

selection, not disqualification of the judge. Perez has not proven that Judge 

Spinetta’s comments at Snyder’s trial served to disqualify him from presiding over 

Perez’s trial. 

4. September 11

Jury selection in Perez’s trial began one day after the September 11 terrorist 

attacks. He claims that the “intense pro-government patriotic fervor generated by 

this traumatic event meant that the defense was operating under a tremendous 

disadvantage both in attempting to discredit the State’s case for appellant’s guilt 

and in opposing the State’s request for the death penalty.” Yet Perez offers no 

examples of how the September 11 attacks biased jurors, and his trial did not raise 

any issues that resembled any issues related to the attacks. Other courts have 

rejected similarly generalized claims about prejudice from the September 11 

terrorist attacks. (See, e.g., U.S. v. Templeton (8th Cir. 2014) 378 F.3d 845, 848, 

fn. 2; U.S. v. Capelton (1st Cir. 2003) 350 F.3d 231, 236-237; U.S. v. Merlino

(D.Mass. 2002) 204 F.Supp.2d 83, 89-90, affd. in part & revd. in part on other 

grounds (1st Cir.) 592 F.3d 22.) Moreover, though Perez argues that his trial 

“should have been continued,” the record does not indicate that he asked for a 

continuance. Perez fails to establish that his trial’s timing improperly biased his 

jurors or otherwise violated his constitutional rights. 
23

B. Jury selection claims

1. Restrictions on voir dire

Perez contends that “the trial court’s jury selection system did not allow 

adequate time for voir dire of the prospective jurors.” The trial court had denied 

defense counsel’s request to sequester potential jurors from each other for a 

portion of voir dire. The trial court also restricted each side’s questioning of 

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

restrictions prevented his lawyers from asking potential jurors about discrepancies 

between their written questionnaires and live answers. He also argues that 

potential jurors may have become “less inclined to rely upon their [] impartial 

attitudes about the death penalty” after they saw others get dismissed for stating 

opposition to the death penalty, as well as that jurors might “mimic responses that 

appear to please the court.” Perez also points to instances where potential jurors 

heard details about the case from fellow panelists, such as when one potential juror 

said she wanted the defendants “killed like they killed her.” Another panelist said 

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

the case from media reports. 

We have long recognized that “the enormity of the jury’s decision to take or 

spare a life” requires trial judges to “be especially vigilant to safeguard the 

neutrality, diversity and integrity of the jury.” (Hovey v. Superior Court (1980) 28 

Cal.3d 1, 81.) At the same time, “in reviewing a trial court’s denial of a 

defendant’s motion for individual sequestered jury selection, we apply the ‘abuse 

of discretion standard,’ under which the pertinent inquiry is whether the court’s 

ruling ‘falls outside the bounds of reason.’ [Citation.]” (People v. Famalaro

(2011) 52 Cal.4th 1, 34.) In Famalaro, prospective jurors had commented in front 

of their peers that the “defendant should ‘fry,’ and that they felt uncomfortable 

looking at, and breathing the same air as, [him].” (Ibid.) Other jurors revealed 
24

that they “had prejudged defendant’s guilt and believed he should be executed.” 

(Id. at p. 35.) Yet we found no error or prejudice in the trial judge’s decisions to 

allow group voir dire, explaining that “[i]ndividual sequestered jury selection is 

not constitutionally required, and jury selection is to take place ‘where 

practicable . . . in the presence of the other jurors in all criminal cases, including 

death penalty cases.’ ” (Id. at p. 34, quoting Code Civ. Proc., § 223.) In Perez’s 

case, as in Famalaro, the trial court acted within its discretion when it chose to 

allow group voir dire despite statements from some jurors that they had views on 

the case. 

As for Perez’s argument that the trial court gave counsel too little time to 

question each juror, neither the state nor federal Constitution requires 

individualized voir dire questioning by attorneys. (See People v. Avila (2006) 38 

Cal.4th 491, 533-536; see also Morgan v. Illinois (1992) 504 U.S. 719, 729-730.) 

As for statutory requirements, the Legislature has established only that “counsel 

for each party shall have the right to examine, by oral and direct questioning, any 

or all of the prospective jurors” after “completion of the court’s initial 

examination.” (Code Civ. Proc., former § 223.)2 Former section 223 also says 

that the trial court “may, in the exercise of its discretion, limit the oral and direct 

questioning of prospective jurors,” including by “specify[ing] the maximum 

amount of time that counsel for each party may question an individual juror” or by 

“specify[ing] an aggregate amount of time for each party.” (Ibid.) We have 

further recognized that trial judges have “a duty to restrict voir dire within 

 

2 Former Code of Civil Procedure section 223 was repealed by Stats. 2017, c. 

302 in September 2017, and the new section 223 became effective as of January 1, 

2018. (See Code Civ. Proc., § 223.) We refer to former section 223 because it 

was the requirement in effect at the time of the voir dire for Perez’s trial. Even if 

we were to apply the new section 223, the result would not change because setting 

“reasonable limits” to attorney voir dire is still “in the judge’s sound discretion.” 

(Id., subd. (b)(1).) 
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 inconsistent comments of a 

prospective juror” who had indicated on his written questionnaire that he was not 

willing to consider “psychological, psychiatric, or other mental health testimony 

regarding a defendant in determining the appropriate sentence at the penalty 

phase.” The prospective juror also wrote that he did not “care for a history lesson” 

and “crime=punishment,” and he answered “maybe” in response to a question of 

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

innocent.” In his oral questioning, this prospective juror stated that he “could 

follow the law.” He again indicated that he found “problematic” that a defendant 

did not need to present evidence of innocence, but he said he could “live with” the 

rule. At the end of the oral questioning, the judge thanked the potential juror for 

his honesty and told him “[i]t would have been very easy for you to give answers 

that would automatically disqualify [you].” Defense counsel objected, explaining 

that “I’m supposed to be attacking this guy after the court has congratulated him.” 

The judge responded, “I didn’t affirm his answer. I simply said that I felt that he 

answered truthfully.” Perez claims that the judge’s comments “had the prejudicial 

effect of sanctioning this prospective juror’s improper comments.” He argues that 

this violation was a structural error because it suggests “a biased tribunal.” We 

disagree. The judge’s comments here simply commended the juror’s honesty. 

While trial judges should take care to avoid suggesting that any particular answer 
26

to a voir dire question is favorable, the judge’s comments to this juror did not 

endorse the substance of the juror’s answers or otherwise suggest any preference 

for the juror’s views. 

Perez also alleges that the trial judge was more aggressive in instructing 

potential jurors who Perez contends “would otherwise have been subject to 

challenges for cause by the defense.” Perez argues that these “interventions on 

behalf of pro-death jurors were designed to have them change their otherwiseobjectionable answers” and he claims that the judge failed to act impartially by 

instructing these jurors in this way. We have explained that the “occasional use of 

leading questions when attempting to rehabilitate ‘death-leaning’ jurors” does not 

“suggest a lack of impartiality.” (People v. Mills (2010) 48 Cal.4th 158, 190; see 

also ibid. [“We assume the trial court formulated its questions based on the 

individual characteristics of each juror, including the juror’s questionnaire answers 

and in-court demeanor. To second-guess these choices would encourage the trial 

court to engage in substantially the same questioning of all prospective jurors 

irrespective of their individual circumstance, something we have declined to 

do.”].) As in Mills, Perez has not established that the trial judge acted improperly 

in his questioning of these jurors.

3. Failure to dismiss jurors 

Perez claims that some of the prospective and actual jurors should have 

been either dismissed, excluded, or disqualified. But defense counsel did not 

attempt to strike any of these jurors, either for cause or by using a peremptory 

challenge. In fact, defense counsel used only 10 of the available 20 peremptory 

strikes and never expressed dissatisfaction with the composition of the jury. We 

thus “agree with the Attorney General that defendant, having chosen not to 

challenge [a juror] for cause or peremptorily, and having neither exhausted his 
27

peremptory challenges nor expressed dissatisfaction with the jury, cannot raise on 

appeal the trial court’s failure to excuse [such a juror.]” (People v. Taylor (2009) 

47 Cal.4th 850, 883-884.) 

4. Removed juror

Perez claims that his rights to due process of law and to trial by jury were 

violated when the trial judge dismissed a seated juror during the guilt phase 

proceedings. Just before opening statements, the judge informed counsel that a 

juror (Juror No. 7) approached him and “indicated that he wanted to discuss with 

me his level of comfort with sitting on a death penalty case and suggesting that —

that he may have some difficulty in that regard.” The judge told the juror that the 

issue would be addressed after the judge spoke to counsel. The jury was then 

brought in, both sides gave opening statements, and several witnesses testified. At 

the end of that day, the judge asked the juror at issue to stay behind when the jury 

was excused. The juror told counsel that the past week had given him “time and 

reason to reflect further on myself, on the death penalty” and though he wrote on 

his jury questionnaire that he had no moral, religious, or philosophical qualms 

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

making that decision myself.” The juror later confirmed that his “state of mind 

was such that no matter what the aggravating circumstance is and no matter what 

the mitigating circumstance evidence is,” he “could not ever” vote for the death 

penalty. After a discussion with counsel, the judge dismissed the juror over 

Perez’s objection. 

Although the trial court’s decision to discharge a sitting juror is reviewed 

for abuse of discretion, the trial court’s factual basis for doing so is reviewed 

under the “demonstrable reality” standard. (See People v. Zamudio (2008) 43 

Cal.4th 327, 349; see also People v. Lomax (2010) 49 Cal.4th 530, 589-91
28

(Lomax).) A trial court may discharge a sitting juror if the court finds the juror is 

unable to perform his or her duty. (See Lomax, at p. 589; § 1089 [“If at any time, 

whether before or after the final submission of the case to the jury, a juror dies or 

becomes ill, or upon other good cause shown to the court is found to be unable to 

perform his or her duty, . . . the court may order the juror to be discharged and 

draw the name of an alternate . . . .”].) This “demonstrable reality” standard 

requires a less deferential, more searching review of the factual predicate for 

discharging a juror than what is entailed by the substantial evidence standard. 

(Lomax, at p. 589.) Crucially, in order to uphold the trial court’s determination, 

we must conclude “ ‘that the court as trier of fact did rely on evidence that, in light 

of the entire record, supports its conclusion that bias was established.’ [Citation.]” 

(Ibid.; see also id. at p. 590 [“The inquiry is whether ‘the trial court’s conclusion is 

manifestly supported by evidence on which the court actually relied.’ 

[Citation.]”].)

Perez claims the record in his case does not show “a demonstrable reality”

that the juror at issue here was unable to perform his duty as a juror, since the 

judge determined only that the juror could not impose the death penalty. But “ ‘[a] 

juror may be disqualified for bias, and thus discharged, from a capital case if his 

views on capital punishment “would ‘prevent or substantially impair the 

performance of his duties as a juror in accordance with his instructions and his 

oath.’ ” [Citations.]’ ” (Lomax, supra, 49 Cal.4th at p. 589, quoting People v. 

Keenan (1988) 46 Cal.3d 478, 532.) The instructions in this case required jurors 

to decide whether the aggravating circumstances outweighed the mitigating 

circumstances and then determine whether death was an appropriate punishment. 

Juror No. 7 had confirmed that he “could not ever” vote for the death penalty, “no 

matter what the aggravating circumstance is and no matter what the mitigating 

circumstance evidence is.” Perez concedes that refusal to impose the death 
29

penalty is a valid basis to strike a prospective juror, but he argues that this 

hesitance is an improper basis to strike a juror after the trial has begun. Section 

1089 does not invite a different standard for dismissing prospective jurors versus 

seated ones. To the contrary, it says a juror may be discharged “at any time, 

whether before or after the final submission of the case to the jury” if “found to be 

unable to perform his or her duty.” (§ 1089, italics added.) Given this juror’s 

clear indication that he would not be able to perform his duty of choosing whether 

a death sentence was appropriate, the trial judge had an adequate basis to dismiss 

the juror for good cause. 

Perez claims in the alternative that the juror should have at least been kept 

on through the end of the guilt phase, since the juror’s inability to vote for the 

death penalty would not affect his duties until the penalty phase. Yet Perez points 

to no cases requiring a trial judge to keep a dismissible juror on for part of the trial 

in this way. Instead, he cites three cases from our court addressing whether there 

was a sufficient basis for a trial judge to conclude that a juror would be unable to 

perform his or her duty. (See People v. Pearson (2012) 53 Cal.4th 306, 327-333; 

People v. Allen and Johnson (2011) 53 Cal.4th 60, 69-79; People v. Wilson (2008) 

44 Cal.4th 758, 813-821.) By contrast, in this case we have already accepted the 

soundness of the judge’s conclusion that the juror would be unable to perform his 

duty during the penalty phase of the trial. The remaining question is whether the 

judge should have allowed the juror to participate in a portion of the trial despite 

the juror’s inability to perform that duty. 

Perez also points to Jennings v. State (Fla. 1987) 512 So.2d 169, a case in 

which a juror revealed during the guilt phase of a capital trial that “she had not 

been completely candid about her feelings concerning the death penalty.” (Id. at 

p. 172.) In particular, the juror revealed that though “she still could render an 

impartial verdict in the guilt phase, she could not recommend a death sentence.” 
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 Jennings. But section 1089 does not distinguish between 

different portions of a trial or otherwise suggest that a trial court is required to 

keep a juror for part of a trial if the juror’s inability to perform his or her duty is 

limited to a different phase of the trial. Instead, the statute says a trial court “may 

order [a] juror to be discharged” if a juror “is found to be unable to perform his or 

her duty.” (§ 1089.) This interpretation of section 1089 finds support in our 

preference for unitary juries. (See People v. Fields (1983) 35 Cal.3d 329, 351-

352.) The trial court may exercise its section 1089 discretion to remove a juror in 

the early stages of a trial as a means to “assure — insofar as possible — that the 

decision-making process of a death penalty case is a coherent whole.” (Id. at p. 

352.) With a unitary jury, the decision maker will be more likely to have “full 

recognition of the gravity of its responsibility throughout both phases of the trial” 

and knowledge “of lingering doubts that may have survived the guilt phase 

deliberations.” (Ibid.) Even if an alternate replaces a juror who opposes the death 

penalty at the start of the penalty phase, that alternate will not have fully engaged 
31

in the deliberative process and so would not fully satisfy the concerns we 

described in Fields. (See id. at p. 351; People v. Valles (1979) 24 Cal.3d 121, 

124-128 [holding that an alternate juror may sit in the jury deliberation room so 

long as the alternate juror does not take part in or affect the deliberations].) As a 

result, we hold that section 1089 allows a trial court to remove a juror before the 

conclusion of the guilt phase if the juror cannot fulfill his or her responsibilities in 

the penalty phase. Here, the trial record contains evidence sufficient to satisfy the

demonstrable reality standard that the juror would be unable to perform his duty to 

decide whether a death sentence was due because the juror confirmed that he 

would never be able to vote for a sentence of death. Accordingly, the trial court

did not abuse its discretion when it chose to remove the juror for the entire 

remainder of the trial on that basis. 

5. Lower-income jurors

Perez claims that the trial court’s refusal to provide higher compensation 

for lower income jurors deprived him of a jury of his peers. We have rejected 

similar claims in the past. (See, e.g., People v. DeSantis (1992) 2 Cal.4th 1198, 

1216.) We do the same here.

C. Prosecutorial misconduct 

1. Late disclosure of aggravation evidence

The prosecution’s penalty-phase case included evidence that Perez had 

raped a girl who was under age 14 when Perez was aged 18 or 19. On March 1, 

2001, over six months before the start of jury selection, the prosecutor wrote to 

defense counsel about his intention to present evidence about this uncharged rape. 

A few months later, at a hearing on July 27, 2001, the prosecutor named a San 

Francisco Police Department (SFPD) detective that the prosecutor planned to talk 

to about the incident. The prosecution filed its formal notice of aggravation on 
32

August 16, 2001. On the same date, the prosecution told defense counsel that the 

SFPD’s file on the uncharged rape appeared to be missing. Jury selection began 

on September 12, 2001. Then, in October 2001, near the end of the guilt phase, a 

prosecutor turned over portions of a police report related to the incident. The 

prosecutor apologized for handing the documents over late but claimed he had not 

received them earlier. Perez contends the prosecution purposely delayed in 

turning over the police reports and filing a formal notice of aggravation. 

Perez claims that the prosecution’s delays violated his rights under section 

190.3, which bars prosecutors in first degree murder cases from presenting 

penalty-phase aggravating evidence “unless notice of the evidence to be 

introduced has been given to the defendant within a reasonable period of time as 

determined by the court.” (§ 190.3.) One purpose of this statute is assigning to 

trial courts discretion for deciding how much time is enough adequate notice, 

though we have generally required that notice be provided “before the case is 

called.” (People v. Roberts (1992) 2 Cal.4th 271, 330 [“Section 190.3’s plain 

language gives the court discretion to determine what amount of notice is 

reasonable, but the evidence must be given to a defendant before the case is 

called.”]; see also People v. Jurado (2006) 38 Cal.4th 72, 136 [“Notice provided 

before jury selection begins is generally considered timely, and the purpose of the 

notice provision is satisfied if the defendant has a reasonable chance to defend 

against the charge.”].) More than six months before jury selection began, the

prosecution gave defense counsel informal notice. The prosecutor then conveyed 

the name of the SFPD detective three months before jury selection began. The 

prosecutor filed a formal notice of aggravation on August 16, 2001, almost a 

month before jury selection began on September 12, 2001. In these 

circumstances, the trial court did not abuse its discretion in ruling that the 
33

prosecution gave Perez “notice of the evidence to be introduced . . . within a 

reasonable period of time.” (§ 190.3; Jurado, at p. 136.) 

Perez further claims this purposeful delay violated the People’s federal 

constitutional obligation to disclose exculpatory evidence under Brady v. 

Maryland (1963) 373 U.S. 83, along with the analogous requirement of the 

California Constitution. Under both Brady and the California Constitution, the 

prosecution is only required to disclose evidence that “ ‘helps the defense or hurts 

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

(2010) 50 Cal.4th 263, 279.) Perez claims that the police report about the rape 

incident constitutes Brady material, but does not claim that it is exculpatory on its 

own. Rather, Perez argues that it would be useful for impeachment and voir dire

purposes. The police report stated that a female victim reported that Perez had 

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

statements in the police report were consistent with the notice of aggravation, 

which referred to the alleged incidents of rape. Moreover, the police report 

ultimately proved unhelpful to Perez because it was consistent with the victim’s 

testimony that he had sexually assaulted and raped her multiple times. As Perez

presents no proof the prosecution failed to disclose evidence that in any way 

“helps the defense or hurts the prosecution,” he has not established a violation of 

his rights under either Brady or the analogous requirements of California’s 

Constitution.

2. Other prosecutorial misconduct

Perez lists five other allegations of prosecutorial misconduct, advancing 

brief arguments supporting each. Because we find unpersuasive each of these 

claims for the reasons discussed below, we also reject Perez’s argument that the 
34

cumulative “effect of these individual instances of prosecutorial misconduct” 

requires reversal.

Perez first contends the prosecution elicited irrelevant victim impact 

testimony of the victim’s husband and daughter during the guilt phase. The 

Attorney General argues that defendant forfeited this argument because Perez 

failed to object to this testimony at trial. To avoid forfeiture of a claim of 

prosecutorial misconduct, a defendant must object and request an admonition. 

(People v. Redd (2010) 48 Cal.4th 691, 746 [ “[A] defendant must object and 

request an admonition in order to preserve a claim of prosecutorial misconduct, 

and the objection must be made upon the same ground as that which the defendant 

assigns as error on appeal.”].) Perez failed to do so on this claim and thus the 

claim is forfeited. Even if not forfeited, the argument fails. The prosecution

committed misconduct, Perez argues, by asking the victim’s husband how long he 

had known his wife and by presenting testimony from the victim’s daughter ––

who, Perez asserts, “did not witness anything, did not add anything to the State’s 

case for guilt, and did not view the body.” The testimony of both the victim’s 

husband and daughter was relevant to the prosecution’s guilt-phase case because it 

helped narrate the circumstances of Mrs. Daher’s murder. The daughter’s 

testimony established the timing of when the men allegedly broke into the home, 

and the husband’s comments about his relationship to his wife helped frame his 

observations about her routines. None of this testimony was improper. (See

People v. Salcido (2008) 44 Cal.4th 93, 151 [affirming verdict in capital case in 

which a murder victim’s wife’s testimony during the guilt phase that the victim 

recently changed his work schedule so she would not have to drive during her 

pregnancy was not improper because the testimony “scarcely touched upon the 

victim’s family life and did not relate the effect of defendant’s acts upon family 

members”].) 
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, 48 Cal.4th at p. 746 [requiring objection and request for 

admonition to preserve prosecutorial misconduct claim].) Even if not forfeited, 

these statements were not improper: they were based on Hart’s testimony, rather 

than the prosecutor’s independent knowledge or beliefs. (See People v. Frye

(1998) 18 Cal.4th 894, 971 [“[S]o long as a prosecutor’s assurances regarding the 

apparent honesty or reliability of prosecution witnesses are based on the ‘facts of 

[the] record and the inferences reasonably drawn therefrom, rather than any 

purported personal knowledge or belief,’ her comments cannot be characterized as 

improper vouching.”], disapproved on other grounds in Doolin, supra, 45 Cal.4th 

at p. 421, fn. 22.)

Perez third claims that the prosecution asked improper or argumentative 

questions “designed to discredit” penalty-phase witness Susan Frankel, an attorney 

who knew Perez through a mentorship program for California Youth Authority 

parolees. Perez’s objections to those questions were sustained and defense 

counsel did not request any further jury instruction about them. Even assuming 

the prosecutor’s statements were improper, Perez fails to demonstrate prejudice. 

(See People v. Riggs (2008) 44 Cal.4th 248, 298 [“Under California law, a 

prosecutor commits reversible misconduct if he or she makes use of ‘deceptive or 

reprehensible methods’ when attempting to persuade either the trial court or the 

jury, and it is reasonably probable that without such misconduct, an outcome more 

favorable to the defendant would have resulted.”].) Although the prosecution’s 
36

questions to Susan Frankel were potentially argumentative, the fact that the judge 

sustained the objections to the questions and that Susan Frankel’s testimony 

played a small role in the penalty phase of trial demonstrates a lack of prejudice 

arising from any asserted error. 

Fourth, the prosecutor asked the jury to make Perez “sit on death row until 

his appeals process is over” during the prosecutor’s penalty-phase closing 

argument. Perez claims this statement suggested that his appeals would succeed. 

Defense counsel did not object to the reference to the appeals process but later 

moved for a mistrial on account of that statement along with others. Prosecutors 

must exercise great caution in making any reference to the appeals process in a 

case, since an emphasis on that process can serve to diminish a juror’s sense of 

responsibility about the profound task that every criminal trial requires the jury to 

undertake. This concern is especially acute in capital cases, where jurors hold a 

person’s life in their hands. Nonetheless, Perez must demonstrate that the 

prosecutor’s statements caused prejudice. (People v. Riggs, supra, 44 Cal.4th at p.

298.) In this case, all that the prosecutor told jurors about the appeals process was 

that Perez would await the end of the appeals process before his death sentence 

could be lawfully carried out. This reference in the closing statement of the 

penalty phase of the trial was too slight and tangential to diminish the jury’s sense 

of responsibility about its task. 

Fifth, the prosecutor asserted during the penalty-phase closing argument 

that Perez never appeared to show remorse. The prosecutor also mentioned that 

Perez and the other suspects had seemed to “celebrate” by drinking beer and doing 

cocaine at various times on the night of the crime. Defense counsel again did not 

object but later moved for a mistrial on account of that statement along with 

others. We have repeatedly held that prosecutors may comment on a defendant’s 

lack of remorse in committing a capital crime. (See, e.g., People v. Hawthorne
37

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

(2011) 52 Cal.4th 610.) 

D. Accomplice testimony

Perez claims that the testimony of Maury O’Brien and Jason Hart was 

unlawful, first because it was insufficiently corroborated and second because it 

was made unreliable by promises that the prosecution made to the witnesses. On 

the first point, Perez argues that the testimony did not satisfy the requirements of 

section 1111, which provides, “A conviction can not be had upon the testimony of 

an accomplice unless it be corroborated by such other evidence as shall tend to 

connect the defendant with the commission of the offense; and the corroboration is 

not sufficient if it merely shows the commission of the offense or the 

circumstances thereof.” (§ 1111.) The term “accomplice” is then defined as “one 

who is liable to prosecution for the identical offense charged against the defendant 

on trial in the cause in which the testimony of the accomplice is given.” (Ibid.) 

We have interpreted section 1111 to require “evidence tending to connect 

defendant with the crimes ‘without aid or assistance from the testimony of’ ” the 

accomplice. (People v. Davis, supra, 36 Cal.4th at p. 543, quoting People v. Perry

(1972) 7 Cal.3d 756, 769.) We recently explained that evidence corroborating 

accomplice testimony “ ‘need not independently establish the identity of the 

victim’s assailant’ [citation], nor corroborate every fact to which the accomplice 

testifies [citation], and ‘ “may be circumstantial or slight and entitled to little 

consideration when standing alone.” ’ ” (People v. Romero and Self (2015) 62 

Cal.4th 1, 32 (Romero and Self).) But the evidence must nonetheless connect the 

defendant to the crime itself, rather than simply connect the accomplice to the 

crime. (See id. at p. 36 [“[A]n accomplice’s testimony is not corroborated by the 

circumstance that the testimony is consistent with the victim’s description of the 
38

crime or physical evidence from the crime scene. Such consistency and 

knowledge of the details of the crime simply proves the accomplice was at the 

crime scene, something the accomplice by definition admits. Rather, under 

section 1111, the corroboration must connect the defendant to the crime 

independently of the accomplice’s testimony.”].) 

O’Brien’s testimony was corroborated by enough evidence to satisfy 

section 1111’s requirements. Eyewitnesses from the neighborhood placed Perez 

and the two other men near the scene of the crime during the timeframe when Mrs. 

Daher was killed. A series of other witnesses then testified that they met Perez 

and the two men immediately after the killing, at which time the men tried to sell 

some of the stolen property. The timeframe of the crime was also confirmed by 

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

and where the men checked into a motel near the site of the abandoned vehicle. 

While this array of evidence did not “corroborate every fact to which the 

accomplice testifie[d]” and could perhaps be characterized as “circumstantial or 

slight and entitled to little consideration when standing alone,” it tends to connect 

Perez to much of the narrative established by O’Brien’s testimony. (See Romero 

and Self, supra, 62 Cal.4th at p. 32.) As for Hart, the Attorney General claims that 

section 1111 did not apply to his testimony to the extent Hart was not “liable to 

prosecution for the identical offense charged against the defendant on trial.” 

(§ 1111.) We need not decide whether this conclusion is correct. Even if section 

1111’s requirements apply to Hart’s testimony, what Hart said about Perez’s 

commission of the four charged offenses was sufficiently corroborated by other 

evidence. 

Separate from his argument about corroboration, Perez further argues the 

accomplice testimony was unreliable because the accomplices were promised 

immunity in exchange for their cooperation. Only Hart appears to have been 
39

awarded immunity. As for O’Brien, whose testimony dominates Perez’s claim 

about the accomplice testimony, he testified that he had not received immunity of 

any kind. He also told jurors that neither the police nor prosecutor had offered 

him anything in exchange for his testimony. At any rate, we have long “rejected 

the contention that the testimony of an immunized accomplice necessarily is 

unreliable and subject to exclusion.” (People v. Jenkins (2000) 22 Cal.4th 900, 

1010.) Perez claims that his “argument is that [the accomplice testimony] was 

unreliable in this case” though he gives no reason why the testimony at issue in 

this case was unique in a way that its reliability was not assured through the 

normal mechanisms (cross-examination, comparison with other evidence, and the 

jury’s assessment of a live witness’s credibility). The jurors at Perez’s trial were 

even instructed that, in evaluating the credibility of the witnesses, they should 

consider any prior criminal conduct reflecting adversely on credibility, along with 

whether the witnesses were testifying under a grant of immunity. Each witness 

told the jury about what they had been promised in exchange for incriminating 

Perez, and the trial record does not cast doubt on this testimony’s truth. Perez 

presents no basis to believe that either O’Brien or Hart were coerced in a manner 

that jurors would have been unable to discern when assessing their credibility. 

E. Autopsy evidence

Mrs. Daher’s autopsy was performed by a pathologist named Susan Hogan, 

who worked for a private company that had a contract with Contra Costa County 

to perform autopsies. Hogan testified at Snyder’s trial but had moved out of the 

area by the time of Perez’s trial, so the prosecution presented testimony about the 

autopsy from another pathologist from the same company named Brian Peterson. 

The prosecution never proffered evidence showing that Hogan was unavailable to 

testify. (See Evid. Code, § 240, subd. (a).) Peterson had zero involvement with 
40

Mrs. Daher’s autopsy, and his entire knowledge of the autopsy came from 

Hogan’s report, which was never admitted into evidence. 

Peterson’s testimony included a description of the signs that Daher was 

strangled, including marks around her neck, bleeding in the whites of her eyes, 

bleeding in the muscles of her neck, and a furrow around her neck. He testified 

that these “changes in the face [] implied that that force had indeed contributed to 

this lady’s death.” Peterson also characterized the severity and cause of various 

stab wounds. Peterson asserted, for example, that for six different stab wounds 

“it’s safe to say that . . . the knife was pushed in far enough so that the entire blade 

was inside the body.” The prosecutor then showed Peterson the knife that was in 

evidence, and Peterson testified that “this knife is certainly consistent with every 

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

expressly relayed observations that Hogan had recorded at the autopsy, saying 

things like “Dr. Hogan estimated,” “she noted,” and “[her] findings included.” 

Peterson also shared various reasons why he believed “that the strangulation 

happened first” and that “the major force in this case was . . . the strangulation.” 

Though Peterson believed “that relatively lethal to sub lethal force had already 

been delivered before those stab wounds,” he testified that he could “say 

unequivocally, based on the blood inside the chest, that her heart was still beating 

at the time those stab wounds were delivered.” Asked if “in your opinion would 

the cause of death be a combination of ligature strangulation and stabbing,” 

Peterson answered yes.

Perez claims Peterson’s testimony violated the confrontation clause because 

it contained out-of-court, testimonial statements offered for their truth –– that is, 

testimonial hearsay statements –– that Perez had no opportunity to confront. 

Years after Perez’s trial, Crawford v. Washington (2004) 541 U.S. 36 established 

that the confrontation clause bars the government from introducing such 
41

testimonial hearsay statements unless (1) there is a showing that the declarant is 

unavailable, and (2) the defendant had a prior opportunity to cross-examine the 

declarant. (Id. at pp. 53-54; see also Michigan v. Bryant (2011) 562 U.S. 344, 354 

[holding that “testimonial hearsay” statements must be excluded unless the 

prosecution satisfies Crawford’s requirements], quoting Davis v. Washington, 547 

U.S. 813, 826.)3 Here, the prosecution has not shown unavailability or prior 

opportunity for cross-examination, so the confrontation clause would bar the parts 

of Peterson’s testimony that constitute testimonial hearsay. A statement is 

testimonial hearsay only if it is (1) hearsay under a traditional hearsay inquiry and 

(2) testimonial within the meaning of Crawford and its progeny. (People v. 

Sanchez (2016) 63 Cal.4th 665, 680 (Sanchez) [“The first step is a traditional 

hearsay inquiry . . . . If a hearsay statement is being offered by the prosecution in a 

criminal case, and the Crawford limitations of unavailability, as well as crossexamination or forfeiture, are not satisfied, a second analytical step is required. 

Admission of such a statement violates the right to confrontation if the statement 

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

In Perez’s opening brief, Perez challenges Peterson’s testimony from trial 

generally, but supplemental briefing narrows Perez’s confrontation clause 

challenge. One month after Perez’s opening brief, we issued People v. Dungo

(2012) 55 Cal.4th 608 (Dungo), which addressed whether statements in autopsy 

reports are testimonial. (Id. at pp. 618-621.) Multiple state courts have 

subsequently addressed similar issues. (See, e.g., Miller v. State (Okla.Crim.App. 

2013) 313 P.3d 934, 967-973.) We also recently issued Sanchez, supra, 63 

 

3 A defendant may also forfeit a confrontation clause challenge by engaging 

in wrongdoing that renders the declarant unavailable with an intent to prevent that 

declarant’s in-court testimony. (Giles v. California (2008) 554 U.S. 353, 377.) 

No evidence of such a forfeiture is present here.
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 Attorney General on the 

hearsay and confrontation clause issues. In that supplemental briefing, Perez 

narrowed the scope of his confrontation clause challenge. Instead of the whole of 

Peterson’s testimony, Perez challenges only particular statements that Perez 

asserts could only have been obtained from Hogan’s autopsy report. These 

statements include descriptions of the hemorrhaging of the victim’s eyes, the depth 

of knife wounds on the victim’s body, and internal injuries caused by the 

stabbings. We thus analyze the hearsay and confrontation clause issues with 

respect to this narrowed challenge. 

We first address whether the challenged statements are hearsay. If an 

expert testifies to case-specific out-of-court statements on which he or she relied 

for their truth to form an opinion, such statements are also “necessarily considered 

by the jury for their truth, thus rendering them hearsay.” (Sanchez, supra, 63 

Cal.4th at p. 684.) But an expert may nonetheless “rely on hearsay in forming an 

opinion, and may tell the jury in general terms that he did so” without violating 

hearsay rules or the confrontation clause. (Id. at p. 685; see also People v. Leon

(2015) 61 Cal.4th 569, 603 [“It is also clear that testimony relating the testifying 

expert’s own, independently conceived opinion is not objectionable, even if that 

opinion is based on inadmissible hearsay.”].) Here, Peterson’s description of the 

hemorrhaging in the victim’s eyes, the depth of knife wounds, and the internal 

injuries caused by the stabbing related case-specific facts about the victim’s body 

that were taken directly from Hogan’s autopsy report and no other sources. (See, 

e.g., Sanchez, at p. 677 [holding that “hemorrhaging in the eyes was noted during 

the autopsy of a suspected homicide victim” could be case-specific out-of-court 

statement if no other exhibits established that fact].) Peterson also presented these 
43

facts as true, and relied on their purported truth in forming his opinion. These 

statements thus constitute hearsay under Sanchez. 

Even if we assumed hearsay statements in an autopsy report are admissible 

under an applicable hearsay exception (see, e.g., Evid. Code, §§ 1280, 1271; cf.

People v. Clark (1992) 3 Cal.4th 41, 158-159; People v. Beeler (1995) 9 Cal.4th 

953, 978-981), a separate question would remain: whether the statements 

constitute testimonial hearsay under the confrontation clause as interpreted by 

Crawford and its progeny (see Sanchez, supra, 63 Cal.4th at p. 685 & fn. 12). In 

Dungo, we held that “anatomical and physiological observations about the 

condition of the body” are “not so formal and solemn as to be considered 

testimonial for purposes of the Sixth Amendment’s confrontation right.” (Dungo,

supra, 55 Cal.4th at pp. 619, 621.) We need not address Dungo’s continued 

viability here because any federal constitutional error arising from the admission 

of these statements was harmless beyond a reasonable doubt.4 (See Chapman, 

supra, 386 U.S. at p. 24; People v. Pearson (2013) 56 Cal.4th 393, 463.) 

A comparison of the evidence at trial and the hearsay statements shows 

why. At trial, evidence bearing no connection to the hearsay statements, such as 

photographs and police testimony, showed that someone had choked Mrs. Daher 

and stabbed her multiple times. These facts were not disputed. The exact depth of 

the stab wounds, the fact that the victim’s eyes contained hemorrhages, and the 

details on her internal injuries, in light of the other evidence at trial, were such 

minor pieces of evidence that they had no effect on the jury’s ultimate 

determination of Perez’s guilt.

 

4 Perez also contends that the hearsay statements do not fall into an 

applicable hearsay exception (see Evid. Code, §§ 1280, 1271), and thus were 

inadmissible under state law alone. But as with the alleged confrontation clause 

error associated with the admission of these hearsay statements, in this case, any 

state law error was harmless beyond a reasonable doubt.
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 that because of the small amount of blood 

in the victim’s lungs, the victim had died before she was stabbed. Peterson, in 

contrast, opined that the victim was still alive, but had a weak heartbeat when 

someone stabbed her. Perez argues that these differing opinions show prejudice, 

on the theory that the timing of the victim’s death could alter defendant’s 

perceived culpability, at least at the penalty phase. But there is a disconnect 

between the statements Perez challenges from Peterson’s testimony –– which only 

encompass factual statements about the victim’s body –– and this claim of 

prejudice. Even if the challenged factual statements were testimonial hearsay, 

Peterson’s opinion about the cause of death was admissible. While Peterson relied 

on hearsay in forming his opinion, he is permitted to do so under Sanchez and 

Evidence Code section 802. (See Sanchez, supra, 63 Cal.4th at p. 685 [“Any 

expert may still rely on hearsay in forming an opinion, and may tell the jury in 

general terms that he did so.”].) The jury would have thus heard Peterson’s 

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

challenged hearsay statements. So we conclude that any error was harmless 

beyond a reasonable doubt. 

F. Other evidentiary issues

1. Crime scene photo

Perez claims the trial judge erred in denying defense objections to the 

introduction into evidence of one photo of the crime scene. Prior to trial, defense 

counsel moved to preclude the prosecution from introducing into evidence any 

photos of the victim’s body. The trial court reviewed the photos and then admitted 

three crime scene photos and four autopsy photos. Defense counsel objected, 
45

claiming that one of the crime scene photos and one of the autopsy photos were 

duplicative of other photos. Time and again, we have explained that the admission 

of photographs alleged to include disturbing details is essentially a relevance 

question, over which trial courts retain considerable discretion. (People v. Roldan 

(2005) 35 Cal.4th 646, 713, disapproved on other grounds in Doolin, supra, 45 

Cal.4th at p. 421, fn. 22; see also People v. Bonilla (2007) 41 Cal.4th 313, 353-

354.) We have also explained that prosecutors “are not obliged to prove their case 

with evidence solely from live witnesses; the jury is entitled to see details of the 

victims’ bodies to determine if the evidence supports the prosecution’s theory of 

the case.” (People v. Gurule (2002) 28 Cal.4th 557, 624; see also People v. Pierce 

(1979) 24 Cal.3d 199, 211 [“ ‘[M]urder is seldom pretty, and pictures, testimony 

and physical evidence in such a case are always unpleasant.’ ”].) 

Perez points to the opinion in People v. Marsh (1985) 175 Cal.App.3d 987, 

in which the Court of Appeal said that where “[a]utopsy photographs have been 

described as ‘particularly horrible,’ and where their viewing is of no particular 

value to the jury, it can be determined the only purpose of exhibiting them is to 

inflame the jury’s emotions against the defendant.” (Id. at pp. 997-998.) In 

Marsh, the prosecutor sought to introduce photos that even he admitted were 

“ ‘terribly gruesome and terribly upsetting.’ ” (Id. at p. 997.) For instance, one 

photo displayed the child victim’s exposed brain, including his dangling bloody 

scalp. In the background of the photo was the child’s blood-splattered torso “with 

the ribcages rolled back to expose the bowels.” (Id. at p. 996.) On appeal, the 

court held that the autopsy surgeon’s testimony was sufficient to make the 

prosecution’s point regarding the amount of force used to inflict fatal blows to the 

victim. (Id. at p. 998.) But the Court of Appeal took care to reiterate that the trial 

court maintains discretion to admit autopsy photos “even where they are only 
46

cumulatively used to graphically portray injuries already detailed in the testimony 

of a doctor witness.” (Ibid.) 

Unlike the photos in Marsh, the autopsy photos introduced here were 

devoid of blood and showed little of the victim’s face. As for the crime scene 

photos, they depicted the victim’s body from a distance, with her face hidden from 

view. These photos were probative to the questions of the requisite state of mind 

of the perpetrator because the severity and number of wounds helped establish that 

the killing was intentional. The photos also helped to corroborate Maury 

O’Brien’s description of where and how Mrs. Daher was killed. Even if the 

photos were unsettling, the degree of prejudice did not outweigh the probative 

value enough to exceed the trial court’s discretion.

2. Jason Hart’s immunity agreement

Perez claims the trial court and prosecutor vouched for the credibility of 

prosecution witness Jason Hart by disclosing a portion of Hart’s immunity 

agreement. Prior to Hart’s testimony, the jury was told that Hart was granted 

immunity from prosecution. Hart then disclosed that he could not be prosecuted 

for various crimes related to the issue if he testified truthfully. Perez claims that 

the disclosure of the immunity agreement was prejudicial to the defense because it 

gave the jury the impression that Hart was necessarily telling the truth. We have 

long “require[d] full disclosure to the jury of any agreement bearing on the 

witness’s credibility, including the consequences to the witness of failure to testify 

truthfully.” (People v. Fauber (1992) 2 Cal.4th 792, 823; see also People v. Frye, 

supra, 18 Cal.4th at p. 971 [ruling that prosecutor properly read to the jury the 

terms of a witness’s immunity agreement, which stated that defendant had 

“promised to tell the truth in exchange for the district attorney’s promise to refrain 
47

from charging her with any crimes relating to the . . . murders”].) The trial court 

properly allowed the jury to learn about Hart’s immunity agreement. 

3. Maury O’Brien’s taped interview

Perez also contends the trial court should have granted his motion for a 

mistrial after the prosecution introduced a tape recording of Maury O’Brien’s law 

enforcement interview. That interview, Perez argues, contained three improper 

comments by O’Brien. First, O’Brien stated that Perez “just got out of the 

penitentiary.” Both the prosecution and judge agreed that the jury should not have 

heard this comment, and the judge told jurors to disregard the comment as both 

speculative and irrelevant. The judge also asked jurors if they would be able to 

disregard the comment, and all jurors nodded affirmatively. Second, O’Brien told 

officers that Perez “wants to kill me right now because he knows that I saw him.” 

The prosecution agreed the jury should not have heard this comment. Though the 

statement appeared in a transcript of O’Brien’s interview, the attorneys noticed the 

mistake during a break in the proceedings and the jury was given a revised 

transcript with the statement redacted. Third, the tape contained two brief 

references to a “test” that officers would administer on O’Brien. The jury never 

heard any explanation of what this “test” was, and the trial court told jurors to 

disregard the reference. 

Perez is correct in one respect: Disclosing a defendant’s prior criminality 

to the jury can prejudice the defendant’s case. But here again, courts have 

“considerable discretion” to determine whether such an error warrants granting a 

mistrial or whether the error can be cured through admonishment or instruction. 

(People v. Haskett (1982) 30 Cal.3d 841, 854 [“A mistrial should be granted if the 

court is apprised of prejudice that it judges incurable by admonition or instruction. 

[Citation.] Whether a particular incident is incurably prejudicial is by its nature a 
48

speculative matter, and the trial court is vested with considerable discretion in 

ruling on mistrial motions.”]; see also People v. McLain (1988) 46 Cal.3d 97, 113 

[holding that the trial judge properly denied a motion for mistrial based on a 

prosecutor’s allegedly improper comment during closing argument, since “the 

admonition given was sufficient to prevent the harm”].) In this case, the jury’s 

exposure to Perez’s past criminality was a brief comment in a recorded interview 

played for the jury. The mistake was recognized quickly, and the court crafted a 

remedy by telling jurors that the comment was speculative and irrelevant and then 

confirming that they would be able to disregard it. This remedy was an acceptable 

alternative to granting a mistrial, given the minor nature of the error. As for the 

statement that Perez wanted to kill O’Brien, assuming error, Perez suffered no 

prejudice because the page of the transcript containing this comment was replaced 

with a redacted version as soon as counsel discovered the error and the record 

contains no basis to believe the brief exposure to the statement caused prejudice. 

As for O’Brien’s reference to a “test,” the jury received no further information 

about this test and was told to disregard the comment. The trial court did not 

abuse its discretion by denying Perez’s motion for a mistrial. 

4. Coaching of Maury O’Brien

Perez claims the trial court improperly “coached” Maury O’Brien by asking 

O’Brien to clarify his answer to a question during his direct examination. O’Brien 

testified that he, Snyder, and Perez boarded a BART train at the Balboa Park 

station in San Francisco, intending to take the train to Fairfield. The men then got 

off at the Orinda station to smoke cigarettes. O’Brien said that their plans changed 

at some point after that stop. In response, the prosecutor asked, “Were you guys 

still doing dope?” O’Brien answered that he and Snyder “did dope at BART 

before we got on BART and after we got off BART before we started walking up 
49

to — back into the hills.” The trial judge then interrupted to ask, “At what BART 

station?” “Lafayette BART station,” O’Brien replied. Perez claims that the 

judge’s question helped O’Brien modify his testimony, depriving the defense of a 

chance to exploit the inconsistency during cross-examination. Trial courts may 

question witnesses to elicit material facts or clarify confusing or unclear 

testimony, so long as the questions remain “ ‘ “temperate, nonargumentative, and 

scrupulously fair” ’ ” and do not “convey to the jury the court’s opinion of the 

witness’s credibility.” (People v. Cook (2006) 39 Cal.4th 566, 597.) The trial 

judge did not exceed those limitations here. He merely asked the witness to 

clarify at which train station the men exited, in response to a complicated narrative 

that involved several train stations. 

5. Incidents during defendant’s prior incarceration

The prosecution asked to present penalty-phase evidence of five violent 

incidents from while Perez was incarcerated. After hearing arguments from 

counsel, the court barred evidence of two of the incidents. Perez claims that the 

evidence from the other three incidents should have been excluded as well. He 

argues that “[t]here was no evidence appellant initiated” the first incident; that the 

second “seemed to be consensual”; and that the third incident involved him acting 

in defense of another. Perez points to no cases or other authorities that support his 

argument, and we rejected similar claims in People v. Moore (2011) 51 Cal.4th 

1104, 1135-1139. We reject Perez’s claims too. 

6. Audience outburst

During the cross-examination of a prosecution witness who claimed Perez 

had raped her when she was a child, the witness’s father spoke up from the 

audience. After the witness agreed with defense counsel that she had “mixed 

feelings” about the issue, the trial transcript reflects a person in the audience 
50

saying, “Just like a 13 year old. You’re leading the witness on here.” The judge 

started to respond but the man interrupted saying, “[M]y daughter was 13 years 

old, your Honor.” The court ordered a recess, during which the speaker was 

confirmed to be the witness’s father. He apologized for the outburst, and defense 

counsel did not ask the trial judge to instruct the jury to disregard his comments. 

Perez claims on appeal that “the court had a sua sponte duty to admonish and 

inform the jury that they should disregard any comments from this spectator.” We 

have held that a “defendant’s failure to object to and request a curative admonition 

for alleged spectator misconduct waives the issue for appeal if the objection and 

admonition would have cured the misconduct.” (People v. Hill (1992) 3 Cal.4th 

959, 1000, overruled on other grounds in Price v. Superior Court (2001) 25 

Cal.4th 1046, 1069, fn. 13.) Because defense counsel never asked for the judge to 

comment on the spectator’s remarks, we see no reason to treat the judge’s failure 

to comment on those remarks as grounds for reversal. Consistent with our past 

decisions in this area, we consider Perez to have waived this issue. 

7. Prejudicial victim impact evidence

Perez claims the trial judge should not have allowed certain victim impact 

evidence during the penalty phase. The Eighth Amendment does not categorically 

bar victim impact evidence. (Payne v. Tennessee (1991) 501 U.S. 808, 827.) To 

the contrary, witnesses are permitted to share with jurors the harm that a capital 

crime caused in their lives. (Id. at p. 825 [“[A] State may properly conclude that 

for the jury to assess meaningfully the defendant’s moral culpability and 

blameworthiness, it should have before it at the sentencing phase evidence of the 

specific harm caused by the defendant.”].) Still, a defendant can challenge victim 

impact evidence that renders a sentencing proceeding “fundamentally unfair.” 

(Ibid.; see also id. at p. 831 (conc. opn. of O’Connor, J.).) In striking this balance 
51

between proper victim impact evidence and fundamentally unfair evidence, this 

court has explained that the effects of a capital crime are relevant and admissible 

as a circumstance of the crime unless the evidence “ ‘invites a purely irrational 

response from the jury.’ ” (People v. Garcia (2011) 52 Cal.4th 706, 751.) Garcia

rejected the notion that admissible victim impact evidence is limited to the 

“ ‘ “immediate injurious impact” ’ ” or to “effects ‘known or reasonably apparent’ 

to defendant at the time it was committed.” (Ibid.) We explained that prosecutors 

may present testimony “from those who loved the murder victim” showing “ ‘how 

they missed having [the victim] in their lives.’ ” (Ibid., quoting People v. Boyette 

(2002) 29 Cal.4th 381, 444.) 

The prosecution’s final two witnesses during the penalty phase were the 

victim’s daughters, Lauren and Annie. Lauren was 15 when her mother was 

killed. She told jurors that her mother’s death was “the hardest thing I think I 

could ever even imagine[]” and that she had since “turned into the mom of the 

family.” She also testified that “[m]y entire junior year of high school, I didn’t 

really go to school because I couldn’t get up in the morning.” Annie was 12 when 

her mother was killed. She testified that “a lot of times I’m just so sad that I 

can’t — I — that I can’t really do anything.” Perez fails to show that the 

testimony from the victim’s daughters rendered the proceeding “fundamentally 

unfair” or invited a “purely irrational response.” Each daughter offered her 

personal perspective on the impact of her mother’s death. This evidence shed light 

on the family’s ongoing grief, thereby “informing the sentencing authority about 

specific harm caused by the crime in question.” (Payne v. Tennessee, supra, 501 

U.S. at p. 825.) 
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 Sixth Amendment right to 

a public trial creates a “presumption of openness” that ordinarily allows victims or 

other members of the public to observe trials. Where a party seeks exclusion of 

the public, the presumption of openness can be rebutted only when the party 

shows the public’s exclusion was “necessary to protect some ‘higher value’ such 

as the defendant’s right to a fair trial, or the government’s interest in preserving 

the confidentiality of the proceedings.” (People v. Woodward (1992) 4 Cal.4th 

376, 383.) Given the ubiquity of crime victims and their families observing trials, 

Perez’s generalized claims that the mere presence of the victim’s family was 

improper “victim impact evidence” does not rebut the constitutional presumption 

of open criminal trials. 

G. Instructional errors

1. CALJIC Former No. 17.41.1

Perez argues that the trial court should not have instructed the jury with 

CALJIC former No. 17.41.1, which, as modified by the trial court, stated, “The 

integrity of a trial requires that jurors at all times during their deliberations 

conduct themselves as required by these instructions. [¶] Accordingly, should it 

occur that any juror refuses to deliberate or expresses an intention to disregard the 

law or to decide the case based on penalty or punishment or any other improper 

basis, it is the obligation of the other jurors to immediately advise the Court of that 

situation.” Though in 2002, we disapproved use of this particular instruction in 

trials going forward from that point, we have since that case repeatedly “rejected 

similar claims that the instruction violates a defendant’s federal constitutional 

rights.” (People v. Brady (2010) 50 Cal.4th 547, 587; see also People v. Wilson, 
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 on the elements of both forcible rape and lewd acts 

with a child under 14. Perez claims that instruction on this second crime was 

prejudicial and irrelevant. The prosecution requested the instruction on this crime 

out of concern that a revocation of consent during intercourse was not considered 

rape under California law at the time of trial. (See People v. Vela (1985) 172 

Cal.App.3d 237, 242 [holding that a defendant is not guilty of forcible rape if a 

victim withdraws consent during intercourse], disapproved of in In re John Z.

(2003) 29 Cal.4th 756, 760-763.) But the uncontradicted evidence at trial showed 

that Perez did in fact use force to overcome the victim’s will, so jurors could not 

have found that Perez had sex with the victim without believing that he used force 

either before or during intercourse. Any error in instructing the jury on the 

elements of lewd acts was therefore harmless. 

3. CALJIC No. 8.88

The court instructed the jury with CALJIC No. 8.88, which provides in 

part, “To return a judgment of death, each of you must be persuaded that the 

aggravating circumstances are so substantial in comparison with the mitigating 

circumstances that it warrants death instead of life without parole.” During 

closing argument, defense counsel told the jury that it was required to vote for life 

if it found the aggravating and mitigating circumstances equal. The judge 

interrupted, saying that defense counsel misstated the law and the jury should 

ignore counsel’s statement. After defense counsel finished the closing argument, 
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 previously 

rejected similar challenges. We reject his claim too. 

H. California’s death penalty statute

Perez advances several claims about the constitutionality of California’s 

capital sentencing scheme that he concedes “have been rejected by this Court.” 

We are not persuaded to reconsider our precedent. (People v. Winbush (2017) 2 

Cal.5th 402, 488.) The state’s death penalty scheme does not violate the federal 

Constitution by failing to: require written findings from the jury as to aggravating 

and mitigating factors (see, e.g., id. at p. 490); require jurors to find aggravating 

factors beyond a reasonable doubt (see, e.g., id. at p. 489); require jurors to find 

aggravating factors unanimously (see, e.g., ibid.); adequately narrow the class of 

offenders eligible for the death penalty (see, e.g., id. at p. 488); adequately narrow 

prosecutorial discretion as to who is charged with capital crimes (see, e.g., People 

v. Weaver (2001) 26 Cal.4th 876, 992); or require either “intercase proportionality 

review” or “the disparate sentence review that is afforded under the determinate 

sentence law” (People v. Williams (2016) 1 Cal.5th 1166, 1205). Nor did the trial 

court err either by instructing the jury about the aggravating and mitigating factors 

using a unitary list (see, e.g., People v. Myles (2012) 53 Cal.4th 1181, 1222) or by 

telling jurors to consider section 190.3 factors “if applicable” (see, e.g., People v. 

Maury (2003) 30 Cal.4th 342, 439-440). 

I. Proportionality

Perez claims his sentence is unconstitutional because it is disproportionate 

relative to the punishment his accomplices received. What we have previously 

held is that “the federal Constitution does not require us to incorporate into our 
55

proportionality determination any comparison of defendant’s sentence with that of 

another culpable person, whether charged or uncharged.” (People v. Hill, supra, 3

Cal.4th at p. 1014.) Even if we were to undertake this comparison though, Perez’s 

culpability here appears deeper than that of Snyder and O’Brien. Perez argues that 

the fact that he “has been sentenced to death while the prosecutor did not even 

seek death against the other defendants demonstrates a lack of proportionality.” 

But Snyder was 17 at the time of the crimes, and California’s capital punishment 

statute has long provided that “the death penalty shall not be imposed upon any 

person who is under the age of 18 at the time of the commission of the crime.” 

(§ 190.5.) As for O’Brien, he testified that he did not encourage or participate in 

the homicide other than to follow Perez’s orders and hand Perez the knife. Given 

the gravity of the offense here as well as the evidence of Perez’s particular role, 

Perez’s sentence does not violate any Eighth Amendment requirement of 

proportionate sentencing. 

J. Equal protection, international law

Perez claims his sentence violates equal protection principles under both 

federal and international law, along with a number of other requirements of 

international law. He concedes that we have repeatedly rejected these claims on 

the grounds that distinctions between capital and noncapital sentences are 

sufficiently justified and that international law is not a basis to invalidate sentences 

that are lawful under domestic law. (See, e.g., People v. Virgil (2011) 51 Cal.4th 

1210, 1290 [“ ‘[C]apital and noncapital defendants are not similarly situated and 

therefore may be treated differently without violating constitutional guarantees of 

equal protection of the laws.’ ”]); People v. Jennings (2010) 50 Cal.4th 616, 690

[“ ‘International law does not prohibit a sentence of death rendered in accordance 
56

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

same today. 

K. Lethal injection 

Perez claims his death sentence is illegal because it will be carried out 

using a method of lethal injection that violates the Eighth Amendment. But this

“challenge to the method of a future execution is not cognizable on appeal,

because such a claim does not impugn the validity of the judgment.” (People v. 

Burney (2009) 47 Cal.4th 203, 270.) 

L. Cumulative error

Perez claims that the errors he has asserted were cumulatively prejudicial 

even if they were individually harmless. The only issues we resolve purely on 

harmless error grounds are the following: Perez’s absence from the discussion 

between Judge Spinetta and Perez’s counsel about a conflict of interest; the 

admission of hearsay evidence from an autopsy report through an expert’s 

testimony; some of the claims of prosecutorial misconduct; the accidental 

inclusion, in a transcript given to the jury, of O’Brien’s testimony that Perez 

wanted to kill him; and the jury’s instruction on the elements of lewd acts with a 

child under 14, in relation to evidence of a prior uncharged rape. None of these 

potential errors, nor their cumulative effect, warrants reversal. 
57

III. 

The judgment is affirmed. 

CUÉLLAR, J.

WE CONCUR:

CANTIL-SAKAUYE, C. J.

CHIN, J.

CORRIGAN, J.

LIU, J.

KRUGER, J.

JENKINS, J.*

 

* Associate Justice of the Court of Appeal, First Appellate District, Division 

Three, assigned by the Chief Justice pursuant to article VI, section 6 of the 

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

Name of Opinion People v. Perez

__________________________________________________________________________________

Unpublished Opinion

Original Appeal XXX

Original Proceeding

Review Granted

Rehearing Granted

__________________________________________________________________________________

Opinion No. S104144

Date Filed: March 1, 2018

__________________________________________________________________________________

Court: Superior

County: Contra Costa

Judge: Peter L. Spinetta

__________________________________________________________________________________

Counsel:

A. Richard Ellis, under appointment by the Supreme Court, for Defendant and Appellant.

Kamala D. Harris and Xavier Becerra, Attorneys General, Dane R. Gillette and Gerald A. Engler, Chief 

Assistant Attorneys General, Ronald S. Matthias, Assistant Attorney General, Alice B. Lustre, Glenn R. 

Pruden and John H. Deist, Deputy Attorneys General, for Plaintiff and Respondent.
Counsel who argued in Supreme Court (not intended for publication with opinion):

A. Richard Ellis

75 Magee Avenue

Mill Valley, CA 94941

(415) 389-6771

John H. Deist

Deputy Attorney General

455 Golden Gate Avenue, Suite 11000

San Francisco, CA 94102-7004

(415) 703-5855