Filed 12/23/20 P. v. Cauble CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE,

Plaintiff and Respondent,

v.

JEFFREY DUANE CAUBLE,

Defendant and Appellant.

 D076215

 (Super. Ct. No. SCD275889)

APPEAL from a judgment of the Superior Court of San Diego County, 

Louis R. Hanoian, Judge. Reversed and remanded.

Thomas E. Robertson, under appointment by the Court of Appeal, for 

Defendant and Appellant. 

Xavier Becerra, Attorney General, Lance E. Winters and Julie L. 

Garland, Assistant Attorneys General, Michael P. Pulos, Joseph Christian 

Anagnos and Kathryn A. Kirschbaum, Deputy Attorneys General, for 

Plaintiff and Respondent. 
2

In 2019, a jury convicted Jeffrey Duane Cauble of the 1979 second 

degree murder of C.W. (Pen. Code,1 § 187), and found true allegations that 

Cauble personally used a knife in the crime’s commission (§ 12022, subd. 

(b)(1)). The court sentenced Cauble to 15 years to life plus a one-year 

enhancement for the knife use allegation. Both before and after trial, the 

trial court denied Cauble’s motions to dismiss the case on grounds of 

unjustified precharging delay. It denied Cauble’s posttrial motion for a new 

trial claiming counsel’s prejudically ineffective assistance. 

Cauble contends: (1) 40 years of precharging delay deprived him of his 

due process right to a fair trial; (2) his defense counsel provided prejudicially 

ineffective assistance by failing to call a forensic expert, breaking a promise 

he made during opening statements that Cauble would testify at trial, and 

failing to challenge improper and prejudicial evidence; and (3) the prosecutor 

committed prejudicial misconduct by vouching for an erroneous fact not in 

evidence.2

We reject Cauble’s claim of prejudicial precharging delay. However, we 

agree that his counsel’s errors, combined with the prosecutor’s improper 

closing argument discussing a scientific fact not in evidence—which 

undermined Cauble’s theory of self-defense—require a new trial. We reverse 

the judgment.

1 Undesignated statutory references are to the Penal Code. 

2 Cauble has also filed a petition for writ of habeas corpus. We ordered 

the writ petition considered with this appeal so as to determine whether an 

order to show cause should issue. By separate order we deny the petition as 

moot. 
3

FACTUAL AND PROCEDURAL BACKGROUND3

C.W.’s 1979 Killing and Investigation

In the afternoon of February 5, 1979, C.W., a taxi driver, was found 

stabbed to death in bed at his home. He was unclothed in a curled up 

position. C.W. had suffered multiple stab wounds, the first probably through 

his neck, perforating one carotid artery and severing the other. He had 

several knife wounds to his back, some that penetrated his lungs. C.W. did 

not have any defensive wounds to his hands. C.W.’s bedding had cut marks: 

12 in a blanket and eight in a sheet. 

Paul Ybarrondo, then a sergeant in the San Diego Police Department in 

the homicide unit, investigated and supervised the team that responded to 

the scene. Ybarrondo did not see signs of forced entry. He observed drinking 

glasses, cigarette butts and ashtrays in the living room as well as clothing

indicating the victim and another person had removed their clothes there 

then went to the bedroom. An evidence technician collected items including 

the drinking glasses and some of the remaining liquid, the ashtrays and 

cigarette butts, two towels, C.W.’s bedding, and miscellaneous pieces of paper 

in a small wooden chest with names and phone numbers written on them. 

Underneath the wooden chest the technician found and collected a napkin 

with handwriting having Cauble’s name, social security number, birth date, 

driver’s license number, and the words, “Camp Pen.” The technician 

obtained fingerprints from a glass tumbler, ashtray, bottles of alcohol and the 

pieces of paper. He impounded the blanket and sheet. A steak-type knife 

3 This court granted Cauble’s unopposed requests to augment the record 

on appeal. 
4

was found in the sink but it did not have usable fingerprints.4 No drugs were 

found in C.W.’s apartment. Given the nature of the crime scene, the 

technician took and impounded swabs from various parts of C.W.’s body, 

including his mouth and penis. 

A criminalist tested the sheets, blankets and towels and found type O 

blood on them. One sheet and blanket had apparent one-half to three-eighths 

inch cuts on them. She detected type O blood in swabs collected in the 

bathroom. She was unable to detect saliva on either of the drinking glasses. 

The criminalist did not test the contents of one glass for alcohol or drugs 

because she was not told the liquid had been separated into a test tube; 

however, she explained testing capabilities were more limited then and she 

was not sure so-called “date rape” drugs, which dissipate quickly, could be 

found in the liquid. At the time, she was able to test for barbiturates, 

amphetamines, narcotics and alcohol. 174 latent finger print cards were 

collected from the crime scene, but not all of them were suitable for 

comparison. Some of the prints were eventually identified as being from 

C.W.’s former roommate and the roommate’s girlfriend. 

Sergeant Ybarrondo checked the pockets of the clothing on the floor 

and found C.W.’s wallet, which contained no money. He acknowledged 

learning about the napkin with Cauble’s name. Ybarrondo was not aware of 

follow up efforts with regard to the napkin, though it was something he 

would have directed his team to follow up and determine who the person was 

and his connection to the case. Sergeant Ybarrondo’s team interviewed more 

4 The People presented evidence that C.W.’s kitchen had a shelf with an 

open silverware tray on it. The investigating sergeant agreed that an 

investigator noted the tray was “where potentially the murder weapon could 

have come from.”
5

than 20 people and conducted different avenues of follow up investigation. 

However, at some point, the investigation became “cold” because leads had 

gone nowhere. 

In 2004, David Cornacchia, a criminalist working on cold cases for DNA 

evidence reviewed C.W.’s case. He was able to ascertain the victim’s DNA as 

a reference, and determined there was DNA from a foreign contributor on the 

victim. Cornacchia notified the homicide team that if they developed a 

suspect, they could ask him to do a comparison. 

In 2006, the case was reopened when investigators uploaded an 

unknown fingerprint from the scene into a database, producing a hit for 

Cauble. Such hits do not automatically result in an arrest, as it is just one 

lead requiring follow up including to rule out other potential suspects. 

In December 2008, then San Diego Police Department Detective John 

Tefft was assigned to the cold case. He reviewed all the evidence and learned 

that Cauble had been identified as a source of two fingerprint impressions 

that were confirmed by the laboratory in 2007. He followed up on those as 

well as a woman’s prints found at the scene. The woman had dated one of 

C.W.’s roommates. As to Cauble, nothing in the reports or evidence other 

than the cocktail napkin related to him; the detective recalled finding an 

address book and contacted friends or relatives of C.W. but was unable to get 

leads on why Cauble would be present at the scene. He eventually obtained a 

search warrant to get Cauble’s DNA and fingerprints. 

In March 2009, Tefft interviewed Cauble at Cauble’s Colorado home 

about the murder. Cauble denied knowing C.W. or being in his home. In a 

follow up telephone call the next day, Cauble again told Tefft he was not at 

C.W.’s house. Cauble asked why it took so long for police to contact him, and 

Tefft explained based on his experience that computer, DNA and fingerprint 
6

technology had changed remarkably from 1979. Tefft also floated a possible 

scenario to Cauble based on his past experience and training so as to 

communicate to Cauble that he was open to hearing about the situation. 

Tefft explained to Cauble that in the detective’s experience, “many times back 

in 1979 especially, in that era, many times military personnel, they’re away 

from home the first time, they are kind of young. Sometimes they get 

befriended by folks, usually gay men, and they take them back to their home 

and they sometimes have sex. The next day there is remorse, some shame, 

and sometimes violence occurs. I have investigated that as a police officer 

several times in my career.” When Tefft asked Cauble if something like that 

happened, Cauble responded that he would not know as he was not at the 

crime scene. Detective Tefft informed Cauble that additional laboratory tests 

might reveal Cauble was present at the crime scene, and Cauble responded: 

“If I see you again, it’s because I’ll be going back to San Diego with you. I’ll 

just have to straighten this thing around in court.” 

The following month, Detective Tefft had criminalists compare Cauble’s 

DNA sample against the penile and mouth swabs taken from C.W. There 

was either no DNA or not enough DNA from the drinking glasses to draw 

conclusions. The lab results showed strong support that Cauble was a 

contributor to the DNA in both penile and mouth swabs, however. DNA from 

blood on the towel and from two of the cigarette butts matched Cauble’s 

DNA. But no DNA was found on a soda bottle, and Cauble was excluded as 

the source of DNA from the bedding. Detective Tefft retired in mid-2009.

In May 2009, a new detective was assigned to the case. He interviewed 

witnesses, and specifically sought to locate a man, Francisco Guizar, who had 

been seen running from the property on the day C.W.’s body was discovered. 
7

The detective obtained new DNA results pointing to Cauble’s presence at the 

scene. 

In June 2011, the detective decided to again interview Cauble. The 

recorded interview took place in the detective’s vehicle in a parking lot. At 

the outset, Cauble expressed concern about being arrested but the detective 

told him that would not happen. During this interview, Cauble did not deny 

his fingerprints were found in C.W.’s house, but claimed he did not remember 

being there. When the detective told Cauble his DNA was found on C.W.’s 

penis, Cauble claimed not to remember anything, and stated: “The only thing 

I could think of is that, uh, you know, the guy probably drugged me and, you 

know, I don’t remember a thing about it, and then probably seduced me. 

That’s the only thing I can think of.” When asked whether that happened, 

however, Cauble said, “As far as I know, no, it did not happen.” Cauble 

denied having sex with men. After Cauble was told his semen was found in 

the victim’s mouth, he told the detective he was apparently drugged, raped 

and his wallet taken, but said he did not remember that happening, losing 

consciousness, or waking up in someone’s house. Cauble denied getting into 

a fight with the victim, being angry, or murdering anyone. The detective

thought it was significant that Cauble did not remember waking up from a 

state of unconsciousness. The detective did not arrest Cauble that day 

because the purpose of his visit was to get Cauble’s explanation of what had 

happened. The detective presented to district attorneys the recording and a 

written record of what he had learned from the interview. He retired in 2012. 

In 2017, an expert determined that the handwriting on the napkin 

found in C.W.’s apartment was probably C.W.’s. In about May of that year, 

the San Diego Police Department cold case unit presented C.W.’s case to the 

district attorney and a new investigator, Sandra Oplinger, was assigned. 
8

Oplinger reviewed all of the police reports from 1979 and subsequent 

investigations, as well as the evidence, which was still labeled and secure 

within its packaging. She was aware Cauble had denied being at C.W.’s 

apartment, knowing him or having a sexual relationship with him. She 

decided to conduct a jail operation on Cauble to get him to brag or talk about 

the matter. 

In March 2018, police arrested Cauble and put him in a cell with an 

undercover officer posing as an inmate. At one point, Oplinger entered the 

cell and while speaking to Cauble held up an autopsy photo of C.W. When 

the undercover officer asked Cauble if he saw the photo and told Cauble it 

appeared the victim had bullet holes, Cauble responded that the victim “died, 

from a stabbing,” and laughed. Cauble remarked, “They don’t have shit on 

me. Not after 35 years.” Cauble also told the officer his blood was at the 

scene because there was a fight. Cauble explained: “This was a gay guy. [¶] 

. . . [¶] He was a taxi cab driver. I was a Marine. [¶] . . . [¶] . . . I was all 

fucked up, he picked me up, I was going to go to a motel. [H]e said come over 

to my place (unintelligible) drugged me and the drugs (unintelligible). [¶] 

. . . [¶] . . . And he drugged me, uh, he raped me. [¶] . . . [¶] And, uh, I 

confronted him (unintelligible), we started fighting I got the better half 

(unintelligible).” 

Two days later, Cauble spoke with his wife in a recorded jail call. In 

part, he told her he would be extradited and booked for murder, and 

expressed concern that if he was found guilty he would be going to jail 

forever, and would become suicidal. When his wife remarked that he did not 

do it and would get out, he responded, “Wait a minute, I killed a man. [¶] . . . 

[¶] . . . But let me tell you something, . . . he lied to me, then he drugged me, 

they have this on . . . and not only did he drug me, he stole from me, not only 
9

did he steal from me, he followed me, and he, and I, and I killed him. It was 

self-defense that’s all it was, was self-defense I swear to God. It was selfdefense.” Cauble’s wife reminded him the call was being recorded, and 

Cauble said, “It’s on. It’s, that’s what I’m gonna, that’s, that’s what I’m, 

that’s what I’m gonna go by. You know, I’m, I’m gonna go with, I’m gonna go 

with that and I’m speaking the truth.” After further conversation, Cauble 

told his wife that the victim was gay and drove a taxi; Cauble entered his taxi 

to go somewhere but ended up going with the victim to his place, where he 

was drugged by something he drank in a cup. Cauble told his wife the victim 

tried to rape him, and that his own DNA was found on the victim’s penis. 

Prosecutors charged Cauble days after his interview and telephone call. 

In June 2018 a criminalist tested the two liquids from the drinking 

glasses and detected no date rape drugs or other controlled substances. She 

tested for ethanol, but the amounts were at such a low percent that she could 

not say it was an alcoholic beverage. She agreed that result could be 

explained by evaporation. 

Motions to Dismiss for Pretrial Delay

Before trial, Cauble moved to dismiss all of the charges against him, 

claiming unconstitutional, unjustified and prejudicial “pre-complaint delay” 

in the prosecution of the case. Cauble stated he was out at a bar and about to 

complete his enlistment with the Marine Corps when C.W. enticed him to 

come to his apartment and drugged him. Cauble stated he awoke to find 

C.W. attempting to sodomize him and it was C.W. who produced the knife, 

which Cauble used to stab C.W. in self-defense. Cauble argued he suffered 

extreme prejudice by investigators’ failure in 1979 to determine whose 

handwriting was on the napkin, follow up on the information on the napkin, 

or test the contents of the liquid in the drinking glasses found at the scene. 
10

Cauble also argued that the FBI had his fingerprints on file as of 1976, but 

police did not call the FBI or authorities for his military record to identify the 

fingerprints found at the scene. He argued several critical witnesses who 

would have testified about C.W.’s character, habits and customs had since 

died, including one of C.W.’s friends who found the body, two individuals who 

saw C.W. on the night he died, a former roommate, and cab drivers or cab 

company employees who knew C.W. and interacted with him on the morning 

of C.W.’s death. He pointed out that two of the investigating detectives were 

deceased. According to Cauble, material evidence was “essentially” lost or 

destroyed including the napkin (which he claimed was ignored for 30 years) 

and contents of the drinking glass, which had not been tested by the 

criminalist in 1979.5 He maintained the lost witnesses, dimmed memories, 

and lack of physical evidence severely prejudiced his ability to fully and fairly 

put on a defense, and the People lacked any reasonable justification for the 

prolonged delay in prosecuting him.

In opposition, the People pointed out Cauble’s fingerprint was not 

identified until 2007 and they did not develop enough evidence to charge him 

until his March 2018 admission to the undercover police officer. They asked 

that Cauble’s motion be deferred until after trial, arguing he could not 

establish nonspeculative, actual prejudice until the court could assess 

testimony and evidence of Cauble’s guilt. In part, the People argued there 

was no evidence or indication the preindictment delay was intentional or 

done to gain a tactical advantage, given the limited technology and efforts by 

detectives to run new tests, confirm old ones, and re-contact witnesses. 

5 Cauble pointed out that the contents of the drinking glasses were

presently being tested, but the laboratory had not issued results as of October 

2018. 
11

Recounting the substance and significance of various witness’s testimony, 

they argued Cauble could not establish actual prejudice from missing 

witnesses or evidence, the justification for the investigatory delay far 

outweighed any prejudice to Cauble from the passing of time, and the strong 

evidence of Cauble’s guilt weighed against any prejudice caused by the delay. 

After hearing lengthy arguments and relying on the principles in 

People v. Nelson (2008) 43 Cal.4th 1242, the court denied the motion without 

prejudice to it being renewed at the trial’s conclusion. It found Cauble had 

not shown any delay designed to create a tactical advantage for the 

prosecution. The court found no indication of negligence, pointing to the 

existence of numerous latent prints and items of paper with names and 

addresses found in C.W.’s apartment, as well as the absence in 1979 of any 

connection between Cauble and the latent print. The court found the People 

showed strong justification for the delay, and in view of the questionable 

admissibility and speculative nature of the lost witness testimony, Cauble 

had not made an adequate showing of prejudice to establish a due process 

violation. 

Defense Counsel’s Motion to Withdraw

In December 2018, Cauble’s retained defense counsel moved for a 

continuance of the trial date on grounds he had recently been served with an 

additional 852 pages of discovery, he had been given revised jury instructions 

using 1979 law, he needed to retain a handwriting expert, and his wife was 

extremely ill in hospice care for late-stage terminal cancer. The court 

continued the trial to late January 2019.

About 10 days before trial, Cauble’s attorney moved to withdraw as 

counsel of record on grounds he was experiencing difficulty in effectively 

conducting the case after his wife’s recent death. Counsel asserted his 
12

mental and physical condition rendered him unfit: his wife’s prolonged illness 

and death “devastated [him] both emotionally and physically” and 

antianxiety and sleep medications prescribed for him were not working. 

Counsel stated he was unable to carry out his duties to Cauble competently 

under the circumstances, and it was in Cauble’s best interests that he 

withdraw from representation. After an unreported chambers conference 

concerning the request however, counsel withdrew the motion.6

Trial Opening Statements and Testimony

The prosecutor in her opening statement recounted parts of Cauble’s 

interview with the detectives who visited him in Colorado and his denials 

that he knew C.W. or was at C.W.’s apartment. She pointed out that Cauble 

proposed to detectives he had been drugged and raped, but did not remember 

it. The prosecutor explained Cauble had denied being in a fight or 

confrontation. She told the jury they would hear Cauble tell the undercover 

officer that C.W. had raped him and that Cauble confronted and stabbed 

C.W. and “got the better of him.” She said the People would ask the jury to 

find Cauble guilty of murder. 

In his opening statement, Cauble’s defense counsel told the jury the 

case was not a “whodunit”; that Cauble had killed C.W. but the issue was 

why he had done so. Counsel told the jurors he would “tell [them] what I 

think the evidence will show.” He proceeded to recount the events of the 

night and morning before C.W.’s death in detail from Cauble’s perspective, 

relating details as to why Cauble went to a downtown bar, his conversation 

6 The court’s decision to conduct this chambers conference without a 

court reporter is inexplicable. A matter of such critical importance should not 

have been left unreported. Trial courts must be mindful that a party in a 

criminal case is entitled to a sufficient record to provide him or her a 

meaningful appeal. (People v. Callahan (1985) 168 Cal.App.3d 631, 632.) 
13

with C.W., what Cauble remembered after he arrived at C.W.’s apartment, 

what C.W. said to him, Cauble waking up sexually aroused with C.W. 

attempting to sodomize him, and the ensuing fight. According to counsel, the 

stabbing was in self-defense: C.W. produced a knife and “drew first blood,” 

which explained Cauble’s blood at the scene, but Cauble, a “20-year-old 

combat-ready Marine,” struggled with C.W., took the knife away and 

“stab[bed C.W.] multiple times, wildly.” Counsel said, “He’ll probably—he 

will testify [he stabbed C.W.] in a blackout or a partial blackout as a result of 

being roofied by [C.W.]” Counsel told the jury Cauble went back to Camp 

Pendleton with a “very, very fuzzy memory of what occurred,” and described 

it as a “nightmare, as a matter of fact.” Counsel stated the evidence would 

show Cauble and C.W. “were in a fight and that Mr. Cauble had reasonable 

cause to believe and be in fear of his life." He told the jury that Cauble would 

explain some of his answers to detectives during the 2011 interview about 

C.W.’s murder. Counsel concluded: “You’ll have to listen very carefully to 

the testimony of Mr. Cauble. He is a decent person and lived a relatively 

good life, like all of us and all of you.” 

During trial, the People presented evidence that in 1979, forensic 

analysts performed blood typing but there were no computer fingerprint 

databases available, and DNA testing was very limited. In 1979, the 

nationwide CODIS (Combined DNA Index System, see People v. Buza (2018) 

4 Cal.5th 658, 668) database did not exist. DNA typing did not start in San 

Diego until 1996 or 1997. Computer capabilities were not the same as today. 

When working with the military, investigators had to do personal or 

telephone contact with military authorities to track people down. 

Fingerprints were sent to a laboratory and handled manually by comparing 

the unknown print with a known print. 
14

Detective Tefft was permitted to testify that he advised Cauble of his 

experience investigating crimes of violence involving young military 

personnel who experience shame and sometimes violence after befriending 

and having sex with gay men. 

Criminalist Cornacchia testified about his 2004 testing of various items 

for DNA on C.W.’s murder case. He related how he found only Cauble’s DNA 

on a hand towel found in C.W.’s bedroom. He found Cauble’s and another 

person’s DNA on another towel. As for C.W.’s bedding, Cornacchia excluded 

Cauble and C.W. as DNA contributors as to one sample. He identified C.W. 

as a contributor to another sample. He excluded Cauble from the remaining 

DNA profiles from the bedding. Cornacchia did not draw conclusions about 

the cuts in the bedding. However, he explained why he focused on the red 

stains in C.W.’s bathroom, stating he had worked on stabbing cases in which 

the homicide perpetrator injured himself and would use the bathroom at the 

scene to tend to the wound before leaving. He said, “When I saw that blood 

mixed with water, I thought to myself perhaps the individual had injured 

themselves and were attempting to clean up.” But Cornacchia either got no 

DNA at all or got such a small amount that it was unsuitable for 

interpretation. 

Investigator Oplinger testified about her investigation and decision to 

conduct the jail operation. She described it as a “last effort” done when a case 

comes to a “dead end.” She also testified that she had reviewed the blanket 

and sheet, and what caught her attention was they both had multiple stab 

wounds in “very close proximity of each other.” When asked the significance, 

she stated: “[B]ased on my training and experience, based on shooting also, 

to have a close proximity like that it is not random all over. This was very 

controlled, in my opinion, controlled stabs. They’re very close proximity. And 
15

in my opinion—I’m not an expert—but it doesn’t appear that the victim was 

moving about a whole lot because it is so close.” Counsel asked Oplinger: 

“The concentration of . . . these cut wounds, would they appear to be 

consistent with the injuries or the stab wounds on the victim that you saw?” 

Oplinger responded, “I would think so, yes.” 

The People played audio and video recordings of Cauble’s statements to 

the undercover officer while in jail.7 They also played the recording of 

Cauble’s jail visit with his wife in March 2018. Following the playing of the 

call, this sidebar exchange took place:

“[Defense counsel]: This changes the scenario. . . . I’ll tell you why 

very briefly. I don’t know this—this is another media thing. I never got 

video of that tape. All I got was a transcript of [Cauble’s wife] and his 

conversation. That’s okay. That’s fine. But it changes my scenario where he 

may—he—I need to talk to him. . . . He may not testify now. I have to give 

him an opportunity to tell me what he wants to do.” Counsel advised the 

court he did not have any other witnesses. The prosecutor responded that 

the recording was part of discovery and played at the preliminary hearing. 

She stated she had given counsel a list and transcripts of everything she 

would be playing. Defense counsel clarified, “I don’t remember seeing it at 

the prelim[inary hearing], but hey, you know, I’m not saying it wasn’t. I just 

don’t recall.” 

7 The video of the jail operation apparently shows Cauble making a 

stabbing motion when describing how the victim died. Defense counsel 

initially objected to playing the videotape of the jail operation, claiming he 

had never seen it and it was not produced in discovery. The prosecutor 

explained defense counsel had received a CD with both the audio and video 

on it. The court had the prosecutor play the video for defense counsel, who 

then told the court he had no objection to it being played to the jury. 
16

Following a break, the court addressed the prospect of Cauble resting 

without putting on a case, and addressed him: “Ultimately, the decision, Mr. 

Cauble, as to whether or not you testify, you have an absolute right to remain 

silent, which [defense counsel] has stated you intend to invoke. You also 

have an absolute right to testify. In other words, whether you get on the 

stand and testify is completely up to you. I just want to make sure that the 

decision for you not to testify is yours.” Cauble responded: “The decision is 

my own, Your Honor.” 

Cauble did not present evidence in his defense. 

Closing Arguments

The prosecutor began her closing argument by telling the jury that “the 

only reasonable interpretation of all the evidence here is that Mr. Cauble and 

[C.W.] engaged in sex and that then Mr. Cauble brutally murdered [C.W.] 

while he was sleeping in his bed and then left.” She recounted what she said 

was the evidence of what occurred on the evening and early morning hours 

before C.W.’s death. She told the jury it was logical that C.W. and Cauble 

went to C.W.’s apartment and had a consensual social interaction based on 

the scene: the alcohol, Cauble’s fingerprints on the glasses and liquor bottles, 

the cigarette butts in the ashtray from Cauble smoking, the clothing on the 

floor, and C.W. unclothed in bed. She argued: 

“[Cauble was a]ctive, pouring his own drinks. How do we know that? 

Fingerprints on the liquor bottles. Again, smoking. And the way those 

clothes are like that, right, the way his clothes are taken off right there, that 

is evidence that they were drinking in here. They were—Mr. Cauble, at 

least, because there is no evidence of [C.W.] smoking any cigarettes. 

Smoking cigarettes, alert, probably drinking though. There is no question 

there is alcohol being consumed here. 
17

“Again, we’re talking about you may make some decisions you may 

regret later when you’re drinking. They’re still your decisions, and you’re 

still accountable for them. 

“They go into the bedroom, and they engage in consensual sex, contrary 

to Mr. Cauble’s later claims, just sort of, ‘Oh, I must have been raped. I 

wasn’t raped. He tried to rape me.’ I’m not saying a man cannot be a victim 

of sexual assault, but there are very different things about a man and a 

woman and how they respond sexually and what you can do to somebody or 

how can you respond when you’re engaged in sex. Mr. Cauble’s semen is in 

[C.W.’s] mouth. Mr. Cauble had to be awake and aroused for that to have 

occurred.

“[Defense counsel]: Objection. Your Honor, there is no evidence of 

that. 

“The Court: Overruled.

“[Prosecutor]: Common sense. Now, when he is confronted with that, 

that may be how you would try to explain that. That is the truth. That is the 

truth. Not only is his semen in [C.W.’s] mouth, his semen is on [C.W.’s] 

penis, as well as on the non-sperm fraction. His DNA is there. [¶] All of that 

evidence supports a consensual sexual encounter, one that Mr. Cauble may 

later have regrets about. But nonetheless, that is what it was.” 

The prosecutor continued: “[R]emember, Detective Tefft talked about 

that and his experience back in the 70’s. Military men would get picked up. 

They would drink. They would engage in sex. They would wake up, feel 

ashamed, remorse, regret, and then assault the person that they had sex 

with, the male that they had sex with. That is what happened here.” 

Defense counsel did not contest that Cauble killed C.W. He told the 

jury that Cauble was drugged and acted in self-defense in the face of a rape 
18

or attempted rape; that he feared great bodily harm and that Cauble’s blood 

on the towel corroborated his story. Counsel argued Cauble was taken 

advantage by C.W., characterizing C.W. as a rapist or “con man who drugs 

people that he finds on the street.” He emphasized Cauble’s story to his wife 

in the jail call, telling the jury it was important to remember “how she talked, 

how he talked, how they reacted” when he told her C.W. tried to rape him but 

he had no specific memory of it. 

In rebuttal, the prosecutor addressed Cauble’s claim he was drugged 

and acted in self-defense. She pointed out C.W. sustained no defensive 

wounds, stating he was killed while he was asleep. She argued: “Counsel 

didn’t even talk about the bedding. You know why? Because the only 

explanation for that is that [Cauble] stabbed through the sheets in a bed 

while [C.W.] was sleeping. It is why [defense counsel] doesn’t even touch it. 

There is no other reasonable explanation for that. It is why we brought that 

in. It is why those cuts are there.” She argued Cauble’s regret and remorse 

after sobering up was not provocation under the law. She pointed out no 

drugs were found in C.W.’s apartment, and argued against the theory that 

Cauble awoke from use of a date rape drug, suggesting Cauble made up the 

story because he was intoxicated then felt bad about his actions: “You drink 

too much. You regret you had it. Something must have been put in my 

drink. I never would have done that on my own. Or you drank too much. 

You drank, and you made bad choices. It happens to everyone. [¶] There is 

no evidence of that, no evidence of the drugs at the house. They looked 

through that place meticulously. . . . It wasn’t there, because it didn’t 

happen. [¶] The only way I ever would have came [sic] in someone’s mouth 

was if I was drugged. Physically, that is impossible. And, two, that is not 

true. That is a way for you to kind of explain or justify why that happened.” 
19

The prosecutor argued the physical evidence showed Cauble was awake, then 

stated: “Again, I went through this again. There is no way he is unconscious 

when he ejaculates in [C.W.’s] mouth. . . . [¶] . . . [¶] When you look at all 

of the physical evidence and use your common sense, the only reasonable 

interpretation of the evidence is that Mr. Cauble, after he had sex, 

consensual sex with [C.W.], went to the kitchen, got that knife, and made 

sure [C.W.] could not tell about it. He stabbed him viciously and repeatedly. 

. . . That is murder.”

Jury Notes and Verdict

The jury commenced deliberations on a Friday morning. During 

deliberations, jurors submitted one question asking for the “full legal 

definitions of [first], second degree murder [and] voluntary manslaughter, 

beyond the judge’s instructions[.]” Jurors also asked to see the knife. The 

court directed the jury to the instructions given on murder, first degree 

murder and voluntary manslaughter, telling it in part there were no 

additional instructions beyond what it had given, and, “If you conclude a 

murder was committed it is murder of the second degree unless you find the 

defendant to have acted willfully, deliberately, and with premeditation.” The 

court explained that voluntary manslaughter is based on different theories 

where a killing occurs in a sudden quarrel or heat of passion, or the 

defendant acts in imperfect self-defense.

The following Monday afternoon after about seven hours of 

deliberations, the jury returned its verdict. It acquitted Cauble of first degree 

murder and returned a verdict for second degree murder. 

Renewal of Motion to Dismiss for Precharging Delay 

Following trial, defense counsel renewed his motion to dismiss for 

prejudicial precharging delay. After considering the trial evidence and 
20

parties’ arguments, the trial court in a lengthy ruling recounted the early 

investigation in 1979, the technology limitations and advances through the 

years, the potential suspects who were identified and eliminated, Cauble’s 

lies to investigators, and events leading up to the prison operation in which 

Cauble admitted to the killing. The court again found “absolutely no 

negligence” by police who were “not to be faulted for delaying a prosecution of 

somebody for . . . a crime such as murder until they are certain that they 

have sufficient evidence to convict.” The court continued: “Instead of being 

prejudiced by . . . the fact of the delay, the defendant was able to spend 40 

years out and about in Colorado, living his life, instead of spending it in the 

state prison in California. [¶] Was there any prejudice to the defendant by 

the loss of evidence? No. None whatsoever. [¶] There were no percipient 

witnesses to the crime. There were no percipient witnesses who saw Mr. 

Cauble leave with [C.W.] from Green’s bar or anywhere. There’s no credible 

evidence that any of those things existed. [¶] . . . There’s no evidence that 

there was any drugs that were present in connection with the house. None of 

that stuff was destroyed. It was all collected and it was recorded. If there 

was anything to be found in there, the evidence was all preserved. It was 

available for testing. [¶] There was no prejudice. The motion . . . to dismiss 

for the prearrest delay is denied.” 

New Trial Motion

Cauble unsuccessfully moved for a new trial on grounds his trial 

attorney provided ineffective assistance in multiple ways. In part, he argued 

his counsel failed to object to improper testimony from various witnesses or 

present certain experts, advised Cauble not to testify by exaggerating the 

strength of impeaching testimony and underestimating the strength of the 

People’s case, did not present evidence to rebut the People’s claim that 
21

Cauble had attacked a sleeping and defenseless C.W. because Cauble was 

upset about having sex with him, and did not adequately advocate during 

closing arguments that the People failed to meet their burden to prove 

beyond a reasonable doubt the absence of self-defense. 

The court denied the motion. It engaged in a lengthy analysis of the 

trial evidence as well as Cauble’s statements and ultimate confession, finding 

that once the DNA testing and fingerprint analysis came through “the 

evidence in this case was not close, not at all.” In part, the court stated how 

in its view the physical evidence belied Cauble’s claim of self-defense but that 

Cauble had presented the defense in any event by his recorded statement, 

leading it to conclude there was no reasonable probability the result of the 

proceeding would have been different absent any error on the part of his 

counsel.

DISCUSSION

I. Claim of Prejudicial Precharging Delay

Cauble contends that 40 years of delay in charging him deprived him of 

his due process right to a fair trial. He maintains the delay resulted in the 

loss of “blockbuster” witnesses—cab company employees who interacted with 

him the morning of his death and one of C.W.’s former roommates— which 

maximized the prejudice to him. Cauble presented police interview reports 

taken on the day of C.W.’s death with statements from employees Dorothy 

Birse and Charlotte Davidson, who died respectively in 1995 and 2015, and 

taxi driver Mike Goldstein, who died in 1984. Birse related to officers that 

she was working a cashier stand and checked C.W. in at about 5:00 a.m. 

Birse “vividly” remembered it because C.W. paid the balance of his taxi lease 

with a single $100 bill, even though he had logged only one fare, and also told 

her he met a friend, saying, “You know how things like that go,” and “If you 
22

can make more money by not working.” Davidson recounted that C.W. told 

her he had not worked that night and would not be joining her at their usual 

coffee shop, telling her, “I’ve got someone waiting for me at home.” Davidson 

told police that C.W. “said it like the cat that ate the canary.” Goldstein 

drove C.W. home and did not see anything unusual such as lights on at 

C.W.’s apartment or anybody standing on the porch. Cauble also presented a 

statement taken from John King, a former roommate of C.W.’s, who told 

police there were always male strangers coming in and out spending the 

night, and that it would be unusual for C.W. to leave someone in the house 

while he went back to work because he had some nice things. King died in 

2004.

Cauble argues these witnesses gave consistent testimony supporting 

his story that C.W. drugged and robbed him; their statements would have 

permitted the jury to conclude that when C.W. left his apartment he had time 

to dispose of the drugs he used on a captured and unconscious Cauble. 

Cauble argues: “As a result, the jury lacked the strongest evidentiary basis 

to reject the prosecution’s theory that Cauble never lost consciousness.” He 

further argues the People’s delay was unreasonable given the napkin 

evidence and the fact that by 2011 investigators had confirmed his 

fingerprint and DNA matched samples collected from C.W. at the scene. 

According to Cauble, the substantial prejudice to him by the lost witnesses 

outweighed any justification for the delay, but the weakness of the People’s 

case against self-defense tipped the scales toward a due process violation. 

A. Legal Principles

A defendant seeking to dismiss a charge for denial of the right to a fair 

trial and to due process of law under the state and federal Constitutions, 

“must demonstrate prejudice arising from the delay. The prosecution may 
23

offer justification for the delay, and the court considering a motion to dismiss 

balances the harm to the defendant against the justification for the delay.” 

(People v. Nelson, supra, 43 Cal.4th at p. 1250.) Courts do not presume 

prejudice from precharging delay. (Ibid.; People v. Cordova (2015) 62 Cal.4th 

104, 120; People v. Abel (2012) 53 Cal.4th 891, 908-909.) “To establish a due 

process violation, the defendant must prove the existence of actual harm, 

‘such as by showing the loss of a material witness or other missing evidence, 

or fading memory caused by the lapse of time.’ [Citations.] ‘If the defendant 

establishes prejudice, the prosecution may offer justification for the delay; the 

court considering a motion to dismiss then balances the harm to the 

defendant against the justification for the delay. [Citation.]’ [Citation.] ‘The 

balancing task is a delicate one, “a minimal showing of prejudice may require 

dismissal if the proffered justification for delay is insubstantial. 

[Conversely], the more reasonable the delay, the more prejudice the defense 

would have to show to require dismissal.” [Citation.]’ [Citation.] At bottom, 

the court must ascertain whether the precharging delay tilted the playing 

field against the defendant in such a way that it prevented him from 

receiving a fair trial.” (People v. Booth (2016) 3 Cal.App.5th 1284, 1302-

1303.) 

“When . . . there is both prejudice from, as well as justification for, the

precharging delay that occurred, the question of whether the delay violated 

due process will often depend on the strength of the prosecution’s case. 

[Citation.] If the evidence of the defendant’s guilt is strong, the likelihood of 

consequential prejudice from the precharging delay is reduced and a longer 

delay will be tolerated, but if the evidence against the defendant is weak, the 

claimed prejudice will take on added significance and enhance the probability 

of an unfair trial.” (People v. Booth, supra, 3 Cal.App.5th at p. 1310.) “ ‘We 
24

review for abuse of discretion a trial court’s ruling on a motion to dismiss for 

prejudicial prearrest delay [citation], and defer to any underlying factual 

findings if substantial evidence supports them [citation].’ ” (People v. Jones 

(2013) 57 Cal.4th 899, 922.)

B. Prejudice 

In denying Cauble’s motion before trial, the trial court reasoned in part 

that while there were lost potential witnesses, “the significance or the 

substance of any of [those witnesses’] testimony is speculative as to whether 

or not it would be of any benefit at all to Mr. Cauble.” This conclusion was 

not an abuse of discretion. The import of the taxi employee witnesses was

simply that C.W. had appeared in the early morning hours at the cab station 

to pay his lease with a $100 bill, and related in an idiomatic and mischievous 

way that he had a person waiting for him at his house. The statements are 

as consistent with Cauble being awake and voluntarily waiting for C.W. as 

any other scenario. And investigators found no drugs of any kind in C.W.’s 

apartment. The inferences that Cauble suggests a jury may draw from these 

employee statements and that of C.W.’s former roommate—that C.W. took 

the bill from Cauble’s wallet and Cauble had to be drugged and unconscious 

because C.W. would not otherwise leave a stranger in his house—are too 

tenuous to nonspeculatively or reasonably follow from this evidence. In 

short, the trial court’s finding was not “beyond the bounds of reason.” (People 

v. Fuiava (2012) 53 Cal.4th 622, 730.) Given the nature of the witness 

statements, we agree Cauble has not shown actual prejudice due to their 

absence. (Accord, People v. Cowan (2010) 50 Cal.4th 401, 431.)

This distinguishes the circumstances here from those in People v. 

Booth, supra, 3 Cal.App.5th 1284, on which Cauble relies. In Booth, the 

defendant lost a “potentially powerful witness”—an eyewitness to a 
25

shooting—who told police the defendant was not among the group of men 

who carried it out. (Id. at p. 1305.) Because the witness “had the potential to 

be a blockbuster witness for the defense,” the defendant was “substantially 

and materially prejudiced” by his absence at trial. (Id. at p. 1308.) Such is 

not the case here. None of the aforementioned witnesses were eyewitnesses 

to C.W.’s actual killing; they merely recounted what they observed about 

C.W. on the morning of his death, or in King’s case, offered an opinion about 

C.W.’s preferences concerning strangers at his house. Booth does not compel 

us to reach a different conclusion. 

C. Justification for the Delay and Balancing

Even if we were to agree Cauble demonstrated some measure of 

prejudice from the passage of time due to the lost witnesses, we would 

conclude the trial court did not abuse its discretion when it found “there was 

strong justification” for the delay. Cauble’s counsel conceded below there was 

no showing the delay was designed to create a tactical advantage; Cauble 

does not contend on appeal that the delay in this case was purposeful, and 

there is no evidence to support such a conclusion. Rather, Cauble argues the 

delay was unreasonable in view of the napkin with his handwritten 

information found in 1979 at the scene as well as the discovery of Cauble’s 

fingerprints on items and DNA in C.W.’s mouth and on his penis, which 

investigators possessed in 2011 when they re-interviewed Cauble in 

Colorado. Cauble asserts no new evidence was collected between 2011 and 

2017, but in 2015, Davidson, who Cauble describes as the “single most 

important witness” to his defense, had died. Cauble argues we should 

increase scrutiny when law enforcement puts an ongoing investigation on the 

“ ‘ “back burner” ’ ” hoping it would someday become more prosecutable. 
26

Here, the People presented ample evidence permitting the trial court to 

reasonably find substantial investigatory justification for the delay. The 

evidence showed that technology in 1979 prevented the easy identification of 

the 174 fingerprints found at the scene. The napkin with Cauble’s name was 

found along with numerous other pieces of paper with names and addresses, 

and did not by itself point to Cauble as the murder suspect. Further, 

investigators pursued other suspects, including Guizar, seen running from 

the scene on the day of C.W.’s murder, and who later had been charged and 

convicted of an unrelated murder. “[J]ustification for the delay is strong 

when there is ‘investigative delay, nothing else.’ ” (People v. Cowan, supra, 

50 Cal.4th at p. 431.) Though Cauble’s fingerprints were finally identified in 

2009 and DNA from C.W.’s penile and buccal swabs pointed to Cauble 

making him in the court’s view a “good suspect,” that evidence pointed to 

Cauble and C.W. engaging in sex, which was unremarkable in view of one 

witness’s statement to police that C.W. had many overnight male visitors. In 

the face of Cauble’s denials in 2011 that he knew C.W. or was at the scene, 

the People held off charging him with murder until they were able to obtain 

Cauble’s admission during the jail operation. The trial court ultimately 
27

found in denying the motion that the People were justified in waiting until 

they could obtain evidence actually connecting Cauble to C.W.’s killing.8 

This finding was not an abuse of discretion. “Sometimes a crime simply 

is not solved immediately but must await some break in the case . . . .” 

(People v. Cordova, supra, 62 Cal.4th at p. 120.) “The decision when to 

proceed with a prosecution is exclusively one for the executive branch of 

government. It can be a complex question and prosecutors have great 

discretion in deciding when and if to proceed.” (People v. Boysen (2007) 165 

Cal.App.4th 761, 774.) “A court should not second-guess the prosecution’s 

decision regarding whether sufficient evidence exists to warrant bringing 

charges. ‘The due process clause does not permit courts to abort criminal 

8 The court explained: “In April 2009, the lab requested to have Mr. 

Cauble’s DNA compared to the glasses and the swabs, also to have the knife 

checked for prints and DNA. In May of 2009, the defendant’s DNA is 

included on the sperm fraction on the victim’s penile and mouth swabs. The 

DNA on the handle of the knife was insufficient, and the defendant was 

excluded from the bloodstain on the knife blade. [¶] So now we have Mr. 

Cauble with some fingerprints and DNA in [C.W.’s] apartment presumably 

near the time of the homicide, but more than one person certainly could have 

been in [C.W.’s] apartment. He’s a good suspect, and they have somebody 

that they’re focusing in on. [¶] But at least in Mr. Tefft’s mind, I think in the 

minds of the District Attorney, they didn’t have enough, not to prosecute 

somebody for a murder, not to prosecute somebody for a first degree murder 

or murder with potential special circumstances.” The court went on to point 

out there were numerous unaccounted for fingerprints in December of 2009 

with matches for persons who were not excluded as suspects; Cauble’s DNA 

was not found in 2011 tests of the bedspread, blanket, pillowcases, or dried 

blood scrapings from a night table; and Cauble continued to deny everything, 

claiming he might have been drugged but having no memory of that. The 

court stated that as of 2018, police were “convinced that they have the right 

suspect but they cannot tie him to the actual murder or they don’t know what 

the circumstances of the killing are.” It pointed out that it was not until the 

jail operation that Cauble admitted to stabbing the victim to the undercover 

officer and later in the jail call to his wife. 
28

prosecutions simply because they disagree with a prosecutor’s judgment as to 

when to seek an indictment. . . . Prosecutors are under no duty to file 

charges as soon as probable cause exists but before they are satisfied they 

will be able to establish the suspect's guilt beyond a reasonable doubt . . . .’ ” 

(People v. Nelson, supra, 43 Cal.4th at p. 1256.) “It is not enough for a 

defendant to argue that if the prosecutorial agencies had made his or her case 

a higher priority or done things a bit differently they would have solved the 

case sooner.” (Id. at pp. 1256-1257.) 

We hold the trial court did not err by concluding People’s justification 

for the delay—the absence of evidence permitting a jury to find guilt beyond a 

reasonable doubt until Cauble’s jail admissions—well outweighed any 

minimal showing of prejudice Cauble made such that Cauble was not 

deprived of due process or a fair trial. Unlike People v. Booth, supra, 3 

Cal.App.5th 1284, where the case against the defendant was not strong (id. 

at p. 1310), here, Cauble admitted to killing C.W.; the question was whether 

he acted in self-defense or under circumstances that would allow a conviction 

for a lesser offense such as voluntary manslaughter. Though the jury 

acquitted C.W. of first degree murder and convicted him of second degree 

murder, that circumstance in our view—particularly in view of the 

substantial justification for the delay—does not tip the scales toward the 

probability of an unfair trial and due process violation on precharging delay 

grounds. In sum, “ ‘[b]alancing the prejudice [Cauble] has demonstrated 

against the strong justification for the delay, we find no due process 

violation.’ ” (People v. Cordova, supra, 62 Cal.4th at p. 120.) 
29

II. Motion for New Trial Based On Claim of Prejudicially Ineffective 

Assistance of Counsel

Cauble contends the trial court erred by denying his motion for new 

trial based on his defense counsel’s constitutionally deficient trial 

representation following counsel’s wife’s placement into hospice care and 

death in December 2018. According to Cauble, counsel was ineffective in 

three ways: (1) he forgot to call a critical forensic expert or have her present 

in court during the People’s case in chief; (2) he failed to fulfill a critical 

promise he made during his opening statement, namely that Cauble would 

testify about what happened on the night in question; and (3) he failed to 

challenge assertedly improper and prejudicial lay opinions elicited from 

prosecution witnesses Tefft, Cornacchia and Oplinger. According to Cauble, 

given the weaknesses in the People’s case and its closeness as evidenced by 

the jury’s notes and second degree murder verdict, his counsel’s errors likely 

changed the outcome of the case. 

A. Legal Principles

“[A] defendant may raise the issue of counsel’s ineffectiveness as a 

basis for a new trial, and, to expedite justice, a trial court should rule ‘[i]f the 

court is able to determine the effectiveness issue on such motion.’ [Citation.] 

To make out a claim that counsel rendered constitutionally ineffective 

assistance, ‘the defendant must first show counsel’s performance was 

deficient, in that it fell below an objective standard of reasonableness under 

prevailing professional norms. Second, the defendant must show resulting 

prejudice, i.e., a reasonable probability that, but for counsel’s deficient 

performance, the outcome of the proceeding would have been different.’ 

[Citation.] To make out an ineffective assistance claim on the basis of the 

trial record, the defendant must show ‘(1) the record affirmatively discloses 
30

counsel had no rational tactical purpose for the challenged act or omission, 

(2) counsel was asked for a reason and failed to provide one, or (3) there 

simply could be no satisfactory explanation. All other claims of ineffective 

assistance are more appropriately resolved in a habeas corpus proceeding.’ ” 

(People v. Hoyt (2020) 8 Cal.5th 892, 958; see also People v. Carrasco (2014) 

59 Cal.4th 924, 981.) We do not second guess trial counsel’s reasonable 

tactical decisions. (People v. Woodruff (2018) 5 Cal.5th 697, 762.) 

Though denial of a motion for new trial is ordinarily reviewed for abuse 

of discretion, when the motion is based on the allegation of ineffective 

assistance of counsel, we apply a different standard: “Whether counsel’s 

performance was deficient, and whether any deficiency prejudiced defendant, 

are mixed questions of law and fact subject to our independent review.” (In re 

Gay (2020) 8 Cal.5th 1059, 1073; accord, People v. Hamilton (2009) 45 Cal.4th 

863, 923 [“The determination of whether a defendant received ineffective 

assistance of counsel is a legal one made by a reviewing court, not a factual 

one entrusted to a finder of fact”]; People v. Rodriguez (2019) 38 Cal.App.5th 

971, 977; People v. Ogunmowo (2018) 23 Cal.App.5th 67, 76.) 

B. Counsel’s Failures Regarding Expert DiMeo

In support of his new trial motion, Cauble presented evidence that his 

counsel had retained a forensic expert, Lisa Allyn DiMeo, to review physical 

evidence from the scene including C.W.’s bedding but that his counsel never 
31

called her as a witness though she was prepared for and appeared for trial.9 

Cauble submitted DiMeo’s declaration. In it, DiMeo acknowledged the 

People’s theory that C.W. was stabbed while sleeping, but observed he was 

lying on his right side and stated that based on her review, C.W. could not 

have been on his right side when he sustained the neck wound and other 

injuries on the right side of his body. Her review of bloodstains were 

“indicative of movement and [C.W.] being in different locations on the bed 

while bleeding.” Further, DiMeo observed none of the investigative reports 

documented the orientation or relationship of the sheets and blanket; her 

personal examination of the bedding revealed “no relationship between 

locations and positions of the defects to indicate they were created 

simultaneously.” Using a digital microscope to inspect the cuts, she verified 

there was no blood associated with any of the defects, which would be present 

if C.W. were stabbed through the bedding. DiMeo also expressed her view 

that “[i]t is impossible to determine through bloodstain pattern analysis 

whether blood deposited at a scene is from a self- inflicted injury of the 

9 DiMeo averred in part: “[Defense counsel] requested I be in court on 

the morning of January 22, 2019. I believed this was to observe the 

testimony of key State witnesses. The jury and counsel emerged from the 

courtroom for the noon break. [Defense counsel] approached me and said, 

‘[Y]ou’re on next.’ I was shocked that [he] failed to request my presence 

during the case in chief. I had no idea what had been stated by the witnesses 

and the scenarios that they had alleged with regard to the physical evidence. 

[Defense counsel] said the State rested on a high note for the Defense, and 

decided it would be best to not call me as a witness, and not let Mr. Cauble 

testify.” The People attack the credibility of DiMeo’s declaration. They point 

out that trial began on January 28, 2019, but even if DiMeo was mistaken on 

the dates, before the noon recess on January 31, 2019, defense counsel had 

already told the court that he had no other witnesses. We do not see the 

discrepancies, which could be clerical in part, as critical to the ineffective 

assistance claim.
32

accused” and that the presence of Cauble’s blood could possibly be from an 

initial assault by the victim or injuries Cauble sustained while defending 

himself. DiMeo averred that had she been present during the testimony of 

the People’s physical evidence witnesses, she would have been prepared to 

rebut the possible positions of C.W. relevant to his injuries and bloodstains, 

and relate how the defects in the bedding had no association to those injuries. 

Cauble contends his counsel’s compromised state resulted in two key 

mistakes: First, he failed to exchange DiMeo’s report on the bedding with the 

prosecutor, and second, he neglected to prepare DiMeo for trial by permitting 

her to sit in on the prosecutor’s case in chief. Cauble maintains his counsel’s 

failure to present DiMeo’s exculpatory testimony—which counsel possessed 

before trial—was deficient and prejudicial, as it “stripped [him] of the only 

rebuttal to the prosecution’s skewed presentation of the physical evidence.” 

In reply, Cauble emphasizes the gravamen of his claim is counsel’s failure to 

prepare DiMeo to the point where she was unable to testify and he 

“effectively forfeited [her] as a witness.” 

We agree counsel’s failure to take the proper steps to present DiMeo as 

a defense forensic expert cannot be explained as reasonable trial strategy. 

The reason for counsel’s decision not to call her, according to DiMeo, was his 

perception of the strength of Cauble’s jail call with his wife, in which Cauble 

admitted killing C.W., telling her C.W. lied to him, robbed and raped him. 

But DiMeo’s opinions would have bolstered Cauble’s defense apart from 

Cauble’s statements to his wife; they were relevant and probative on how the 

attack may have occurred as well as Cauble and C.W.’s positioning during it, 

contradicting Oplinger’s testimony and the People’s theory that the “only 

explanation” of the physical evidence was that Cauble stabbed a sleeping and 

defenseless C.W. through the sheets and blanket covering him. DiMeo would 
33

have explained why the jury should reject criminalist Cornacchia’s guess that 

Cauble suffered a self-inflicted wound in his attack on C.W. The absence of 

DiMeo’s opinion permitted the prosecutor to use the cuts in the sheet and 

blanket to highlight in her closing argument without rebuttal the theory of a 

sleeping and defenseless C.W. This is not a situation where Cauble relies on 

speculation or merely surmises the content of DiMeo’s testimony, which was 

summarized in Cauble’s new trial motion. (People v. Lucas (1995) 12 Cal.4th 

415, 448, fn. 5 [defendant claiming ineffective assistance based on the failure 

to call an expert witness “must do more than surmise that defense experts 

might have provided more favorable testimony”].) 

The People argue counsel’s failure to call expert DiMeo could have been 

a rational decision that her testimony would have hurt Cauble, not helped

him. They maintain the jury could have inferred Cauble stabbed C.W. 

through the neck, cleaned the blade and waited for him to bleed out, then 

stabbed C.W. an additional 12 times to ensure his death. They also argue her 

testimony would have permitted the prosecutor to argue Cauble attempted to 

stab C.W. 20 or more times, making self-defense less likely. We disagree 

these tenuous theories would have been a reasonable basis to forego DiMeo’s 

testimony. We believe the testimony would have allowed competent counsel 

to argue the bloodless cuts in the blankets and sheets were evidence of wild 

and uncontrolled slashing, consistent with Cauble’s self-defense theory that 

he awoke to find himself being assaulted, and killed C.W. in self-defense. 

The People presented no evidence as to how the knife got into the bedroom, 

and the jury could just have plausibly concluded C.W. kept a knife there for 

his protection. As we explain more fully below, counsel’s failure, combined 

with other errors such as the prosecutor’s improper introduction of a 

scientific fact not in evidence, and counsel’s unfulfilled promise to the jury 
34

that he would present Cauble as a witness in his defense to testify about 

events discussed below, prejudicially impacted his case. 

C. Counsel’s Failure to Move to Exclude or Object to Detective Tefft’s 

Testimony About Young Military Personnel 

Cauble contends his counsel was prejudicially ineffective for neglecting 

to move before trial to exclude Detective Tefft’s testimony concerning young 

military men who befriend and have sex with gay men, then assault them out 

of remorse or shame. He points out his counsel was aware in advance of trial 

of the detective’s conclusions, which Tefft had related in a search warrant 

affidavit produced in discovery.10 Relying on People v. Martinez (1992) 10 

Cal.App.4th 1001, involving testimony from a highway patrol officer 

concerning the operation of automobile theft rings, Cauble maintains such 

profile evidence can distort the jury’s perception of mens rea.

We agree Detective Tefft’s testimony about common characteristics of 

young military men was an improper profile. “A profile is a collection of 

conduct and characteristics commonly displayed by those who commit a 

certain crime.” (People v. Robbie (2001) 92 Cal.App.4th 1075, 1084.) It 

“ordinarily constitutes a set of circumstances—some innocuous—

characteristic of certain crimes or criminals, said to comprise a typical 

pattern of behavior.” (People v. Prince (2007) 40 Cal.4th 1179, 1226.) Such 

testimony “compares the defendant’s behavior to the pattern or profile and 

concludes the defendant fits the profile.” (Ibid.) Profile evidence can be

10 Detective Tefft’s affidavit read: “I have seen accounts in the media, as 

well as having investigated cases where gay men frequently pick up young 

military personnel. Many times the military personnel go along willingly, are 

duped, or in some cases are seduced. Many times there is extreme remorse 

after sexual acts occur, and the gay males frequently become victims of 

violent crimes.” 
35

“inherently prejudicial” where it requires the jury to “accept an erroneous 

starting point in its consideration of the evidence”; namely that “criminals act 

in a certain way; the defendant acted that way; therefore, the defendant is a 

criminal.” (Robbie, at p. 1085.) But such evidence is not always excluded; it 

“is inadmissible ‘only if it is either irrelevant, lacks a foundation, or is more 

prejudicial than probative.’ ” (Prince, at p. 1226.) The evidence can be 

“ ‘insufficiently probative’ ” where “ ‘the conduct or matter that fits the profile 

is as consistent with innocence as guilt.’ ” (Ibid.) And in a close case where 

the issue of guilty knowledge or intent is dependent on circumstantial 

evidence, the improper admission of such testimony can be prejudicial. 

(Accord, People v. Martinez, supra, 10 Cal.App.4th at p. 1008.)

The People maintain that the detective’s testimony was merely a 

description of his investigation, in which he related to Cauble a theory of 

what might have happened between the two men. They also argue counsel’s 

decision not to make a pretrial motion was a rational, tactical one, as 

testimony that military men are duped would have fit Cauble’s narrative that 

he was lied to and seduced into going home with C.W. The People further 

argue a pretrial motion would have been futile, as the trial court in denying 

Cauble a new trial stated its view that the motion would have been 

“fruitless.” The People assert the evidence was relevant and admissible on 

Cauble’s motive, suggesting any prejudicial effect was outweighed by its 

probative value. 

We conclude counsel’s failure to seek to exclude or at least object to the 

detective’s improper profile testimony, and later the prosecutor’s argument 

based upon it, cannot be explained by a reasonable tactical purpose or trial 

strategy. “[T]he clear thrust of the evidence was to establish that [Cauble] 

‘fit’ a certain ‘profile.’ ” (People v. Martinez, supra, 10 Cal.App.4th at p. 1006.) 
36

The damaging effect of such profile evidence—particularly where the 

prosecution’s case as to why Cauble killed C.W. was entirely circumstantial—

is too great to make its admission a reasonable and tactical decision. Even if 

Detective Tefft’s testimony can be accurately characterized as merely 

recounting his investigation, here, the prosecutor used it as substantive 

evidence of Cauble’s guilt, telling the jury, “That is what happened here.” In 

this way, she linked the characteristics of the young military men to Cauble, 

and encouraged the jury to infer guilt solely on the fact Cauble engaged in 

behaviors or exhibited characteristics (being a young military man who 

befriended and had sex with a gay man but regretted it, all innocent 

behavior) that matched the profile. (Compare People v. Prince, supra, 40 

Cal.4th at p. 1226 [rejecting argument that testimony was profile evidence 

where it did not link the general characteristics to that of the defendant].) 

This inflammatory profile evidence lacked any meaningful probative value, 

and its use invited the jury to abdicate its role of assessing the evidence as 

well as impeded Cauble’s ability to mount a defense against such a charge. 

(Accord, People v. Robbie, supra, 92 Cal.App.4th at pp. 1085, 1088 [reliance 

on profile evidence unfair because “[t]he jury is improperly invited to 

conclude that, because the defendant manifested some characteristics, he 

committed a crime,” which was “highly prejudicial” to the defendant].) Even 

if counsel’s pretrial motion would have been unsuccessful in the trial court, 

we are of the view that counsel was ineffective for not objecting to the 

prosecutor’s improper use of it in closing.

Under all of the circumstances and combined with counsel’s other 

errors, admission of this testimony unfairly prejudiced Cauble’s case. There 

was little if any physical evidence suggesting the reason why Cauble stabbed 

C.W.; the prosecutor’s case was built on exceedingly weak inferences from 
37

clothing on the floor,11 fingerprints on glasses and liquor bottles, and the 

location of C.W.’s body. But the prosecutor’s use of Tefft’s profile allowed the 

jury to hinge their decision on Cauble fitting a pattern of behavior of youthful 

and lonely military men rather than the evidence on the issue of the 

justification or lack thereof for Cauble’s actions. The jury’s rejection of the 

People’s first degree murder theory and its focus on the degrees of murder 

permit us to conclude as a reasonable probability that Cauble would have had

a different outcome had counsel performed competently in this regard.

D. Counsel’s Failure to Comply with His Announcement that Cauble Would 

Testify About Events Surrounding C.W.’s Killing 

As summarized above, defense counsel in his opening statement to the 

jury made his case for Cauble by emphasizing and describing Cauble’s 

anticipated trial testimony about the night and morning in question, and 

later, his statements to detectives. He told them Cauble would testify he and 

C.W. fought, and Cauble stabbed C.W. “in a blackout or a partial blackout as 

a result of being roofied by [C.W.].” Counsel represented the evidence would 

show Cauble left with a “very fuzzy memory of what occurred” but that in the 

end Cauble had reasonable cause to be in fear of his life. He urged the jury to 

“listen very carefully” to what Cauble had to say. Counsel made Cauble’s 

testimony and credibility the focus of his case, which was that Cauble 

reasonably acted in self-defense. 

Once the prosecutor played the recording of Cauble’s telephone call 

with his wife, however, counsel plainly decided he should advise Cauble 

differently. Explaining he did not recall seeing the recording but admitting it 

11 There is no evidence as to the type of clothing found on the floor or 

whose clothing it was, other than that a pair of pants contained C.W.’s wallet. 

The sole inference that may be drawn is that the clothing belonged to C.W. 
38

could have been disclosed and produced, he told the court it “chang[ed] the 

scenario” with respect to whether Cauble should testify.

An unfulfilled opening statement promise about defense evidence does 

not constitute ineffective assistance of counsel per se. (People v. Burnett 

(2003) 110 Cal.App.4th 868, 885.) It can in some circumstances be a 

reasonable tactical decision. (People v. Stanley (2006) 39 Cal.4th 913, 955.) 

But it can also be a damaging failure sufficient to support a claim of prejudice 

(see Mann v. Ryan (9th Cir. 2016) 828 F.3d 1143, 1154; Saesee v. McDonald 

(9th Cir. 2013) 725 F.3d 1045, 1049-1050; People v. Corona (1978) 80 

Cal.App.3d 684, 725-726 [deficient representation in part because counsel in 

opening committed to introducing a variety of evidence, including alibi by the 

defendant and expert testimony to rebut the prosecution’s case but did not, 

opening the door to the prosecutor’s legitimate comments about the failures]), 

particularly where no intervening circumstance justifies the failure to deliver 

on the promise. (Accord, Williams v. Woodford (E.D.Cal. 2012) 859 F.Supp.2d 

1154, 1171-1173 [defense counsel ineffective in promising the jury that “key 

witnesses”—the defendant and two eyewitnesses—would testify and then 

failing to fulfill that promise]; Madigral v. Yates (C.D.Cal. 2009) 662 

F.Supp.2d 1162, 1183-1184 [defense counsel’s performance deficient because 

his decision to renege on the promise that defendant would testify could not 

be “chalked up” to “unforeseeable events . . . that would warrant . . . changes 

in previously announced trial strategies” and there was no reasonable 

explanation to counsel’s failure to call his client to the stand]; United States 

v. Crawford (E.D.Cal. 2009) 680 F.Supp.2d 1177, 1197-1197 [“Failure to 

produce a witness promised in opening statement may constitute ineffective 

assistance of counsel, if the promise was sufficiently ‘specific and dramatic’ 

and the evidence omitted would have been significant. . . . In contrast, 
39

where the promise is more general in nature, and/or where the testimony to 

be provided would not be significant or was elicited through other means, 

courts may defer to counsel’s reasonable decision to change course”]; U.S. ex 

rel. Hampton v. Leibach (7th Cir. 2003) 347 F.3d 219, 259; Ouber v. Guarino 

(1st Cir. 2002) 293 F.3d 19, 29 [rejecting claim that counsel’s decision was a 

justified reaction to unfolding events]; Anderson v. Butler (1st Cir. 1988) 858 

F.2d 16, 17 [“L]ittle is more damaging than to fail to produce important 

evidence that had been promised in an opening. This would seem 

particularly so here when the opening was only the day before, and the jurors 

had been asked on the voir dire as to their acceptance of psychiatric 

testimony. The promise was dramatic, and the indicated testimony strikingly 

significant”].) 

In Saesee, the Ninth Circuit explained why such unfulfilled promises 

can be so detrimental: “A juror’s impression is fragile. It is shaped by his 

confidence in counsel’s integrity. When counsel promises a witness will 

testify, the juror expects to hear the testimony. If the promised witness never 

takes the stand, the juror is left to wonder why. The juror will naturally 

speculate why the witness backed out, and whether the absence of that 

witness leaves a gaping hole in the defense theory. Having waited vigilantly 

for the promised testimony, counting on it to verify the defense theory, the 

juror may resolve his confusion through negative inferences. In addition to 

doubting the defense theory, the juror may also doubt the credibility of 

counsel. By failing to present promised testimony, counsel has broken ‘a pact 

between counsel and jury,’ in which the juror promises to keep an open mind 

in return for the counsel’s submission of proof. [Citation.] When counsel 

breaks that pact, he breaks also the jury’s trust in the client. Thus, in some 

cases—particularly cases where the promised witness was key to the defense 
40

theory of the case and where the witness’s absence goes unexplained—a 

counsel’s broken promise to produce the witness may result in prejudice to 

the defendant.” (Saesee v. McDonald, supra, 725 F.3d at pp. 1049-1050; see 

also Williams v. Woodford, supra, 859 F.Supp.2d at pp. 1171-1173 [“[T]he 

promise that [the defendant] would testify and speak extensively about the 

circumstances of the case would have made it nearly impossible for the jurors 

to put out of their minds the fact that he did not testify. This compromised 

[the defendant’s] right to be presumed innocent and his right to remain 

silent. Such harm is inherently prejudicial”]; U.S. ex rel. Hampton v. 

Leibach, at p. 259 [“Promising a particular type of testimony creates an 

expectation in the mind of jurors, and when defense counsel without 

explanation fails to keep that promise, the jury may well infer that the 

testimony would have been adverse to his client and may also question the 

attorney’s credibility. In no sense does it serve the defendant’s interests”].) 

We recognize that Ninth Circuit and federal district court cases such as 

Ouber are not binding on us. (People v. Powell (2018) 6 Cal.5th 136, 152.) 

But unlike in Powell,12 these cases are instructive on Cauble’s ineffective 

assistance claim. U.S. ex rel Hampton v. Leibach, supra, 347 F.3d 219, 

involved sexual assault and other crimes on concert attendees by a large 

group of gang members. No physical evidence tied the defendant to the 

attack; eyewitness testimony was the “linchpin” of the state’s case against the 

defendant. (Id. at pp. 249-250.) During his opening statement, defendant

12 In People v. Powell, supra, 6 Cal.5th 136, the defendant in part relying 

on Ouber v. Guarino, supra, 293 F.3d 19 claimed the prosecutor committed 

misconduct by making a false promise he would testify. (Id. at p. 151.) 

Powell found Ouber not binding precedent, but also not on point, as the 

defendant did not make a claim of ineffective assistance and his counsel did 

not belatedly change plans, but it was the defendant himself who chose not to 

testify. (Id. at p. 152.)
41

[Hampton’s] counsel told the jury, “ ‘Mr. Hampton will testify and tell you 

that he was at the concert. Mr. Hampton will tell you that he saw what 

happened but was not involved with it.’ ” (Id. at p. 257.) But counsel 

eventually decided not to call the defendant to the stand because he was 

worried the jury would think him guilty by association. (Id. at p. 258.)

The Court of Appeal agreed counsel’s action deprived Hampton of 

effective assistance: “We may assume, without deciding, that it was 

reasonable for [counsel] to advise Hampton not to testify and not to present 

testimony from other witnesses about his lack of gang ties; such decisions are 

often motivated by strategic considerations that command deference from the 

judiciary. [Citations.] But [counsel] promised the jury that it would hear 

from Hampton and that it would also hear evidence that he had no gang 

involvement, and he reneged on his promises without explaining to the jury 

why he did so. Turnabouts of this sort may be justified when ‘unexpected 

developments . . . warrant . . . changes in previously announced trial 

strategies.’ [Citations.] However, when the failure to present the promised 

testimony cannot be chalked up to unforeseeable events, the attorney’s 

broken promise may be unreasonable, for ‘little is more damaging than to fail 

to produce important evidence that had been promised in an opening.’ 

[Citations.] The damage can be particularly acute when it is the defendant 

himself whose testimony fails to materialize: [¶] [‘]When a jury is promised 

that it will hear the defendant’s story from the defendant’s own lips, and the 

defendant then reneges, common sense suggests that the course of trial may 

be profoundly altered. A broken promise of this magnitude taints both the 

lawyer who vouchsafed it and the client on whose behalf it was made.’ ” (U.S. 

ex rel Hampton v. Leibach, supra, 347 F.3d at p. 257.) Counsel’s “broken 

promises themselves supplied the jury with reason to believe that there was 
42

no evidence contradicting the State’s case, and thus to doubt the validity of 

Hampton’s defense.” (Id. at p. 260.)13

In Ouber v. Guarino, supra, 293 F.3d 19, the court reached a similar 

conclusion in a case where counsel told the jury in a third retrial the 

defendant would testify about what happened and that her testimony would 

be central to the case, but then advised the defendant against it. (Id. at p. 

27.) The Court of Appeals disagreed that counsel’s action was a reasonable 

strategic choice, as he had “structured the entire defense around the prospect 

of the petitioner’s testimony” which was not forthcoming. (Id. at p. 28.) The 

court found counsel’s “delayed reaction . . . sharply reminiscent of the 

situation in Anderson v. Butler[, supra, 858 F.2d 16], in which we observed 

that even ‘if it was . . . wise [not to have the witness testify] because of the 

damaging collateral evidence, it was inexcusable to have given the matter so 

little thought at the outset as to have made the opening promise.’ ” (Id. at 

pp. 28-29.) It rejected the claim that counsel’s decision was a justified 

reaction to unfolding events, stating, “[N]othing occurred during the third 

trial that could have blindsided a reasonably competent attorney or justified 

a retreat from a promise previously made. . . . [T]he prosecution’s case in 

13 The court further explained the harm: “The jury was [led] to believe 

that Hampton had a story to tell that was diametrically opposed to that of his 

accusers; it was told, in essence, that there were two versions of what 

occurred and that it would have the opportunity to evaluate Hampton’s own 

credibility in choosing between those versions. In the end, however, the jury 

never heard a second version of what occurred—from Hampton or any other 

eyewitness; it heard only the State’s account of events. And in that context, 

Hampton’s unexplained failure to take the witness stand may well have 

conveyed to the jury the impression that in fact there was no alternate 

version of the events that took place, and that the inculpatory testimony of 

the prosecution’s witnesses was essentially correct.” (U.S. ex rel Hampton v. 

Leibach, supra, 347 F.3d at p. 258.)
43

chief did not differ significantly at the third trial; and the situation that 

confronted the attorney when he changed his mind about the [defendant’s 

testimony] was no different from the situation that existed at a comparable 

stage of the earlier trials.” (Id. at p. 29.) It concluded that “in the absence of 

unforeseeable events forcing a change in strategy, the sequence constituted 

an error in professional judgment.” (Id. at p. 27.) 

Whether a decision to forego promised testimony is constitutionally 

deficient representation is a fact-based determination that we assess on a 

case-by-case basis. (People v. Stanley, supra, 39 Cal.4th at p. 955.) We also 

acknowledge that while counsel is responsible for trial tactics, the decision 

whether to remain silent or testify is for the defendant after consultation 

with counsel. (People v. Carter (2005) 36 Cal.4th 1114, 1198.) Though when 

questioned Cauble told the court it was his decision to not testify, the record 

affirmatively shows it was counsel who decided at the close of the People’s 

case that circumstances had changed such that he advised against putting 

Cauble on the stand. Cauble’s jail call with his wife triggered counsel’s 

reaction. But the People played the jail call during the preliminary hearing 

and it should not have been a surprise to counsel. That counsel neglected to 

view the video recordings on the drive provided by the prosecutor was not 

excusable. “Making [promises that Cauble would testify about his actions in 

self-defense and differing statements to investigators] and then abandoning 

them for reasons that were apparent at the time the promises were made[] 

cannot be described as legitimate trial strategy.” (U.S. ex rel. Hampton v. 

Leibach, supra, 347 F.3d at p. 259.) Like in the above cases, we cannot say 

counsel’s last minute decision to advise Cauble to forego testifying in this 

case was a strategic choice or a plausible option. This was not a situation 

where counsel had no reason to anticipate Cauble changing his mind about 
44

testifying. By the time counsel made his decision, the prosecutor had already 

presented evidence that Cauble repeatedly and falsely told investigators 

during his interviews that he did not know C.W. and denied being at C.W.’s 

apartment, and thus there was no potentially damaging cross-examination or 

other intervening event that would warrant counsel’s decision. (Compare 

People v. Burnett, supra, 110 Cal.App.4th at pp. 883-884 [counsel’s decision to 

not call defendant a reasonable tactical decision in light of extensive 

impeachment evidence that “would only have further antagonized the jurors 

and the trial court” had defendant testified]; see also id. at p. 885 [defense 

counsel discovered that defendant lied to him, and “[o]nce the trial court 

ruled that defendant’s credibility could be impeached with even more 

damaging evidence, there was little point in engaging in a credibility duel 

which could only disadvantage defendant with the trial court”]; People v. Frye 

(1998) 18 Cal.4th 894, 983-984 [where defense counsel during trial “perceived 

defendant was having difficulty remembering information” he was not 

constitutionally ineffective despite opening statement promising defendant’s 

testimony].)

There is little more important testimony to self-defense than the 

defendant’s own. Under the circumstances, Cauble’s testimony was critical to 

his claim of self-defense and could have changed the outcome of the case. 

Cauble was the sole person able to relate his interactions with C.W., his state 

of mind, C.W.’s actions, and his reaction to C.W.’s conduct or advances, on the 

night in question. Such detail was lacking from his statements to the 

undercover officer and his wife in the jail call. Defense counsel emphasized 

this to the jury in his opening statement, and Cauble’s testimony about his 

perceptions of the need to defend himself, if reasonable, would have been “ ‘a 

complete justification’ ” for his action. (People v. Beck and Cruz (2019) 8 
45

Cal.5th 548, 648; see also People v. Sotelo-Urena (2016) 4 Cal.App.5th 732, 

744 [summarizing law of self-defense and imperfect self-defense].) The 

testimony would permit a finding that Cauble actually and reasonably 

believed he needed to use lethal force to defend himself. (Sotelo-Urena, at 

p.744.) The jury was also instructed with theories of voluntary manslaughter 

based on sudden quarrel, heat of passion, or imperfect self-defense, all 

theories turning on Cauble’s and C.W.’s exchanges and the subjective 

existence and objective reasonableness of Cauble’s belief in the need to 

defend. (Ibid. [imperfect self-defense applies when the defendant has an 

actual, but unreasonable, belief in the need for self-defense and only when 

the defendant fears imminent danger of death or great bodily injury].) Thus, 

Cauble’s testimony would have been powerful evidence on the question of 

malice, which is absent when a defendant sincerely but unreasonably 

believes in a need to defend himself from the person he tries to kill, or acts in 

the heat of a passion resulting from provocation he reasonably attributes to 

the victim. (People v. Rios (2000) 23 Cal.4th 450, 460; Sotelo-Urena, at p. 744 

[If the jury finds a defendant actually but unreasonably believed he needed to 

use lethal force, then he lacks the malice required for murder and is guilty 

only of voluntary manslaughter].) In short, we see no rational tactical 

purpose for counsel’s decision. 

We turn to the question of prejudice. This analysis does not entail the 

application of “ ‘mechanical rules.’ ” (In re Gay, supra, 8 Cal.5th at p. 1087.) 

Rather, we focus on the “ ‘fundamental fairness of the proceeding whose 

result is being challenged,’ ” asking “ ‘whether, despite the strong 

presumption of reliability, the result of the particular proceeding is 

unreliable because of a breakdown in the adversarial process that our system 

counts on to produce just results.’ ” (Ibid.) Cauble must demonstrate a 
46

reasonable probability that but for his counsel’s deficient performance, the 

outcome of the proceeding would have been different. (People v. Mickel (2016) 

2 Cal.5th 181, 198.) 

Such a reasonable probability has been shown here. The jury trial was 

not lengthy; counsel made opening statements on a Tuesday morning, and 

the People rested two days later after the noon recess, a relatively short 

period of time making it unlikely the jurors forgot the promise. (See 

Anderson v. Butler, supra, 858 F.2d at pp. 17, 19 [considering among other 

things the fact only one day elapsed between the promise and the end of the 

defendant’s case].) The jury’s question shows it was focused on the degrees of 

murder. It then rejected the People’s theory of first degree murder, and was 

left to choose between second degree murder, voluntary manslaughter under 

various theories, or acquittal for reasonable self-defense. Cauble’s subjective 

belief in the need to defend himself was critical. Jurors were instructed it 

was the People’s burden to prove beyond a reasonable doubt that C.W.’s 

killing was not justified; that Cauble did not act in self-defense. 

And as we have explained, the People’s evidence on the reason why 

Cauble killed C.W. was exceedingly weak. Had Cauble testified he was 

incapacitated but realized at some point that C.W. had either raped or was 

attempting to rape him, the jury would have had a viable basis to find Cauble 

acted in reasonable or unreasonable self-defense or find “provocation” 

sufficient to support a voluntary manslaughter conviction. (E.g., People v. 

Trinh (2014) 59 Cal.4th 216, 233 [“[T]o reduce murder to manslaughter, 

provocation must be such as would ‘render an ordinary person of average 

disposition “liable to act rashly or without due deliberation and reflection, 

and from this passion rather than from judgment;” ’ ” heat of passion defense 

“must arise from provocation supplied, or reasonably believed to have been 
47

supplied, by the victim or victims”]; People v. Lee (1999) 20 Cal.4th 47, 59 

[same]; People v. Millbrook (2014) 222 Cal.App.4th 1122, 1139 [“ ‘No specific 

type of provocation is required, and “the passion aroused need not be anger or 

rage, but can be any ‘ “ ‘[v]iolent, intense, high-wrought or enthusiastic 

emotion’ ” ’ ” ’ ” other than revenge, including fear].) If counsel had presented 

Cauble and expert DiMeo to counter the People’s case, a lawful conviction of 

voluntary manslaughter was a realistic possibility. 

It is true that the jury here received, and is normally presumed to 

follow, an instruction to “not consider, for any reason at all, the fact that the 

defendant did not testify.” But such instruction does not overcome the 

combined prejudice resulting from counsel’s omissions and failure to produce 

what would have been powerful evidence in support of Cauble’s defense. 

Under all of the circumstances, Cauble has shown confidence in the outcome 

of his trial has been undermined, and we conclude he has raised a reasonable 

probability that counsel’s unprofessional omissions “ ‘undermined the proper 

functioning of the adversarial process . . . .’ ” (In re Valdez (2010) 49 Cal.4th 

715, 729.) We cannot say that the trial can be “relied on as having produced 

a just result.” (Ibid.) 

III. Claim of Prosecutorial Misconduct

Cauble contends the prosecutor committed misconduct in closing and 

rebuttal arguments by referring to a false scientific fact not in evidence when 

responding to Cauble’s claim he was raped while unconscious, namely, that 

for Cauble’s semen to be found in C.W.’s mouth, Cauble had to be “awake and 

aroused” or that it was physically impossible for a person to be drugged and 

also ejaculate. Cauble maintains the misconduct was especially prejudicial 

where it was essentially undisputed at trial that Cauble had ejaculated into 

C.W.’s mouth. Thus, Cauble argues, “any juror who accepted the false 
48

premise that a man must be awake and conscious to ejaculate necessarily 

would have rejected the defense’s contention that Cauble was raped while 

drugged and unconscious.” According to Cauble, the prosecutor’s false 

premise stripped him of his sole defense theory, rendering the misconduct not 

harmless beyond a reasonable doubt or at a minimum creating a reasonable 

chance that at least one juror accepted the premise.

The People respond that Cauble forfeited any challenge to the 

prosecutor’s rebuttal remarks by not objecting to them or requesting an 

admonition. They argue the prosecutor’s rebuttal remarks about physical 

impossibility were not the same as the closing argument statement that 

Cauble had to be awake (to which Cauble’s counsel objected), and thus a 

second objection would not have been futile, as Cauble maintains. On the 

merits, the People argue the prosecutor had wide latitude to draw inferences 

from the evidence and matters of common knowledge; that her remarks in 

context merely stated her view based on all the evidence—the cigarettes 

Cauble smoked, the items he touched, his differing accounts to police, and 

“common knowledge about male physiology”—that Cauble was awake and 

aroused when he ejaculated. They argue even if erroneous, given the 

combination of jury instructions about statements of counsel and the strong 

evidence of Cauble’s guilt, it is not reasonably probable a result more 

favorable to him would have been reached in the absence of the prosecutor’s 

arguments. 

We reject the People’s forfeiture argument. The prosecutor’s remarks 

in rebuttal regarding the physical impossibility of a man ejaculating while 

unconscious were not so different from her initial closing statement as to 

require a continued objection, which given the court’s immediate unfavorable 

ruling would have been futile in any event. (Accord, People v. Mendoza 
49

(2016) 62 Cal.4th 856, 906 [failure to request admonition to prosecutor’s 

assertion of fact not in evidence excused because the objection was “quickly 

overruled”].)

It is generally improper for a prosecutor to misstate the evidence 

presented at trial, assert facts not in evidence, or base argument on facts not 

in evidence during closing arguments. (People v. Fayed (2020) 9 Cal.5th 147, 

204; People v. Mendoza, supra, 62 Cal.4th at p. 906; People v. Linton (2013) 

56 Cal.4th 1146, 1205-1207.) “Referring to facts not in evidence is ‘clearly’ 

misconduct ‘because such statements “tend[ ] to make the prosecutor [her]

own witness—offering unsworn testimony not subject to cross-examination. 

It has been recognized that such testimony, ‘although worthless as a matter 

of law, can be “dynamite” to the jury because of the special regard the jury 

has for the prosecutor, thereby effectively circumventing the rules of 

evidence.’ [Citations.]” [Citations.] “Statements of supposed facts not in

evidence . . . are a highly prejudicial form of misconduct, and a frequent basis 

for reversal.” ’ [Citation.] We ‘view the statements in the context of the 

argument as a whole.’ ” (People v. Rodriguez (2020) 9 Cal.5th 474, 480.) 

We cannot agree with the People that the prosecutor’s statements—

which were not isolated—were a matter of common knowledge or common 

experience. Whether it is possible for a man to ejaculate while unconscious or 

semi-conscious is a scientific fact not within the ambit of a lay person. 

(Compare, People v. Young (2019) 7 Cal.5th 905, 933 [not misconduct to argue 

victims were “very fearful” before they were shot, as evidence showed they lay 

face down on the ground with their hands behind their heads with barrel of 

gun pressed against their heads when shots were fired; victims’ fear was a 

logical inference]; People v. Caro (2019) 7 Cal.5th 463, 513 [prosecutor’s

references to how women react to a difficult relationship or failed marriage 
50

was not misconduct as they drew on “ ‘ “common knowledge” ’or ‘ “common 

experiences” ’ ”]; People v. Mendoza, supra, 62 Cal.4th at p. 908 [not 

misconduct for prosecutor to make the “commonsense point” that no one who 

intentionally kills in a domestic setting is in a normal or calm state of mind].) 

Nor were the remarks a fair comment on or inference from the evidence, 

which would be within the bounds of permissible comment. (People v. Lucas,

supra, 12 Cal.4th at p. 473.)

“ ‘ “A defendant’s conviction will not be reversed for prosecutorial 

misconduct, however, unless it is reasonably probable that a result 

more favorable to the defendant would have been reached without the 

misconduct.” ’ ” (People v. Young, supra, 7 Cal.5th at pp. 932-933; accord,

People v. Tully (2012) 54 Cal.4th 952, 1010.) On this record, and in view of 

defense counsel’s failures recounted above, the improper remarks contribute 

to a circumstance making it reasonably probable a jury would have reached a 

result more favorable absent the prosecutor’s objectionable behavior. (Cal. 

Const., art. VI, § 13.) The prosecutor’s improper remark cut to the heart of 

the case: Had Cauble been awake and engaged in consensual sex with C.W. 

who he killed out of regret? Or was Cauble unconscious or semi-conscious, 

and awoke to find himself being assaulted by C.W.? Even if the court’s 

instructions could cure the prosecutor’s impropriety, we remain concerned 

with the cumulative impact of the errors in this case. 

The People suggest the physical evidence is overwhelming in that it is 

undisputed Cauble stabbed C.W. 12 times and lied about it. But the fact 

Cauble killed C.W. was not at issue, the disputed issue was the reason for 

Cauble’s action. The physical evidence was not strong on that point; it was 

limited to Cauble’s fingerprints on glasses and cigarettes and clothing on the 

floor, from which the prosecutor argued the men engaged in an entirely 
51

consensual sexual encounter. The evidence in support of Cauble’s defense 

was limited to Cauble’s statements to the undercover officer and his wife, 

which did not relate the details of events or fully explain his and C.W.’s 

specific actions and Cauble’s reaction. And both Detective Tefft’s and the 

prosecutor’s improper statements bolstered the People’s theory that Cauble 

consciously engaged in consensual sex then killed a sleeping C.W. out of 

regret, directly undermining Cauble’s story that he awoke or regained enough 

consciousness to realize C.W. was raping or about to rape him. The absence 

of Cauble’s testimony about his perceptions and C.W.’s actions that evening 

or DiMeo’s evidence-based opinions rebutting the prosecutor’s mere argument 

that C.W. was asleep covered in bedding while Cauble stabbed him, compels 

us to reverse the judgment so as to ensure Cauble is afforded due process.

Given our conclusions, we need not address Cauble’s remaining 

arguments.
52

DISPOSITION

The judgment is reversed. The matter is remanded to the trial court 

for a new trial. 

O’ROURKE, J.

WE CONCUR:

McCONNELL, P. J.

DATO, J.