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People v. Perez

Supreme Court of California

March 1, 2018

THE PEOPLE, Plaintiff and Respondent,
JOSEPH ANDREW PEREZ, JR., Defendant and Appellant.

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

          A. Richard Ellis, under appointment by the Supreme Court, for Defendant and Appellant.

          Kamala D. Harris and Xavier Becerra, Attorneys General, Dane R. Gillette and Gerald A. Engler, Chief Assistant Attorneys General, Ronald S. Matthias, Assistant Attorney General, Alice B. Lustre, Glenn R. Pruden and John H. Deist, Deputy Attorneys General, for Plaintiff and Respondent.

          Cuéllar, J.

         In November 2001, Joseph Andrew Perez, Jr., was sentenced to death for killing Janet Daher during a March 1998 robbery at Daher's home. This is Perez's automatic appeal. Perez alleges several defects both at his jury trial and in California's administration of the death penalty. We affirm the judgment.


         On March 24, 1998, Janet Daher was found dead in her home in Lafayette, California. An indictment filed in Contra Costa County Superior Court on March 24, 1999, charged Perez along with Lee Snyder and Maury O'Brien of four crimes related to Mrs. Daher's death: murder, residential robbery, residential burglary, and vehicle theft. The indictment charged special circumstances for the murder count under Penal Code section 190.2, subdivision (a)(17), alleging that Mrs. Daher was killed during the commission of a robbery and burglary.[1] The three cases were severed, and Snyder, who was 17 at the time of the crimes, was tried first. (See People v. Snyder (2003) 112 Cal.App.4th 1200, 1206, 1216.) He was convicted of all four charges and sentenced to life in prison without the possibility of parole, plus six years. (Ibid.) Jury selection for Perez's trial started on September 12, 2001, and testimony began on September 24. O'Brien had not been tried when Perez's trial began.

         The trial's first witnesses described how the victim's body was discovered. The victim's husband, Joe Daher, testified that he left home for his daughter Lauren's softball game around 2:00 p.m. on the day of Mrs. Daher's death. Mrs. Daher was home at the time, and Mr. Daher left the garage door open. According to Mr. Daher's testimony, he answered a phone call from his other daughter Annie on his way home from the game. Annie had come home from school to find her mother missing and the contents of her mother's purse strewn on the floor. Annie did not go upstairs to the master bedroom, and she eventually called law enforcement. The dispatcher told her that officers had found her mother's vehicle and that officers were on their way to the house. Two officers arrived and one went upstairs. He testified that he found Mrs. Daher's body on the floor of the master bedroom with a phone cord tied “very tightly around her hands” “up to her neck, around her neck.” Mr. Daher later helped officers identify the property that was missing from the house, including his wife's sport utility vehicle (SUV) and several thousands of dollars' worth of jewelry.

         Law enforcement officers soon began recovering some of the stolen property and identifying suspects. Multiple witnesses told officers that they saw three men near the Daher home on the afternoon of the murder. One of these witnesses testified that he drove within 25 feet of the men and then identified Perez in court. Another witness identified Perez in a photo lineup. Asked in court if Perez was who he saw and identified, the witness testified that he “can't be exact, but yes, he looks a lot like him.” Mrs. Daher's SUV was discovered in the yard of a roofing company in Cordelia, a small town near Fairfield. An employee of the roofing company testified that he found the SUV “up against the fence like somebody was trying to hide it.” A detective also testified that he had found records showing that Maury O'Brien checked into the Overnighter Motel (less than a half mile from where the SUV was found) on March 24, 1998. The owner of the motel later testified that O'Brien had registered at the motel at 3:31 p.m. on March 24.

         Officers tracked O'Brien down about a month and a half after the murder, after the Contra Costa County Sheriff received a tip. The tip eventually led officers to Lacy Harpe, O'Brien's former girlfriend, who told the officers that O'Brien may have been involved with the crime. At first O'Brien denied his involvement in the crime, but the officers told him they had evidence against him. O'Brien then quickly admitted that he was involved in the crime, though he insisted that he did not personally harm Mrs. Daher. O'Brien testified against Perez at trial, describing how the men came to break into the Daher home and kill Mrs. Daher. He testified that he and Lee Snyder were plotting to rob a drug dealer and discussed the plan with their friend Jason Hart, who introduced the two to Perez. O'Brien told jurors that he met with Perez every day in the two or three days before the murder. O'Brien was not planning for the robbery of the drug dealer to take place on March 24, but Perez “showed up unexpectedly” that morning so the men agreed to do it that day. They arranged to meet the drug dealer in Fairfield and decided to take the Bay Area Rapid Transit (BART).

         According to the testimony, the men boarded BART at the Balboa Park station in San Francisco. They planned to get off in either Pleasant Hill or Walnut Creek, but their plans changed. Instead the men debarked the train at the Orinda station to smoke cigarettes. O'Brien testified that Snyder and Perez “were looking out into the hills over there between Orinda and Lafayette” and decided that they “wanted to rob a house instead of going up to Fairfield.” The men walked a short distance to some nearby large houses, and began searching for “whatever one would be easiest to break into.” O'Brien was carrying a knife, Snyder had a handgun, and Perez was unarmed. The group saw a house with its garage door open. The three went inside, and Perez closed the garage door. They saw Mrs. Daher as soon as they entered the house. O'Brien testified that Perez “put his hand over her mouth and hit her on the head, and she went down to the floor.” O'Brien then “held the gun on her” as “[Snyder] went... through the downstairs rooms and [Perez] went through the upstairs rooms.” Mrs. Daher told O'Brien that her daughter “was coming home in 15 minutes, ” so O'Brien “yelled out to [Perez] and [Snyder] that we had 15 minutes to get in and out.” O'Brien may have used their names when he yelled this, and Perez responded that O'Brien “would have to kill the victim” since he “spoke up and messed it all up.”

         O'Brien also testified that Mrs. Daher “was very cooperative” throughout the robbery. Snyder and Perez took Mrs. Daher upstairs. O'Brien testified that he heard noises from upstairs, so he went up to the master bedroom, where he saw Snyder “pulling out a telephone cord” and Perez “on the other side of the bed” “maybe holding the victim down.” He later saw “Perez on top of the victim” with “the telephone cord wrapped around [her].” Perez “was pulling really hard on the telephone cord” and Mrs. Daher's “neck was twisted back.” O'Brien testified that Perez told him “to go get a knife from the kitchen, ” so O'Brien handed over the knife that was in his pocket. Mrs. Daher was “lying motionless face down by her bed” as Perez walked over and stabbed her “many times” with the knife “[a]ll over her body and her head and neck area.” Perez later handed O'Brien his knife back.

         The men found Mrs. Daher's SUV in the garage with the keys inside. Perez drove. The men drove toward Fairfield but then abandoned the vehicle and checked into the Overnighter Motel in Cordelia, where they split the stolen property. O'Brien cleaned the knife in the bathroom and later threw it in some bushes. They then went to the home of an acquaintance named Justin Mabra, where they did cocaine with Mabra and his girlfriend Megan McPhee. Soon their friend Jason Hart (the one who had introduced O'Brien and Snyder to Perez) picked the three of them up in his car. In the car with Hart was Deshawn Dawson. Hart drove the men to Snyder's home in San Francisco.

         Mabra, McPhee, Dawson, and Hart all testified against Perez as well, corroborating several aspects of O'Brien's narrative. Mabra testified that he and McPhee encountered Perez, O'Brien, and Snyder in Fairfield in late March 1998, around the time of the murder. Mabra did not know Perez from before but identified him both at a live lineup and in court. McPhee also identified Perez both in a live lineup and in court. Dawson testified that he was in the car when Hart drove the men to San Francisco. Dawson told jurors that the three were “talking and bragging” about “stealing and robbing and whatnot.”

         Hart began his testimony by telling jurors that he had been granted immunity from prosecution. He testified that O'Brien and Snyder had told him about their plan to rob a drug dealer, and Perez wanted to join because “he was broke and he needed some money.” Perez later told him that “they robbed a lady” and strangled her to death with a phone cord. Hart drove the three men to Snyder's home, where they showed Hart the jewelry they had stolen. Hart was especially interested in buying a large diamond ring that Snyder was carrying, but Snyder wanted a thousand dollars for it. Hart ended up paying $200 for a diamond ring from Perez. When officers arrested Snyder, they found him carrying a gold necklace and several rings that the Daher family identified as belonging to them. The same day, officers searched Snyder's home and found property from the Daher home, including more jewelry and a mobile phone.

         The prosecution also called two witnesses to describe Mrs. Daher's autopsy. The first was Steven Ojena, a criminalist who worked at the Contra Costa County Sheriff's crime laboratory. During the autopsy, Ojena could see the telephone cord “stretched tightly around her neck” and “wrapped around her wrists, ” “binding her hands behind her back.” He also testified that Mrs. Daher had “ligature marks, that is, impression marks on her neck, ” and he took photographs of the body during the autopsy. Next was Brian Peterson, a forensic pathologist who worked for a private company in Fairfield that had a contract with Contra Costa County to perform autopsies. Another pathologist from the company had performed Mrs. Daher's autopsy, but she had since left the company. Peterson described the autopsy findings and testified to his opinion about the cause of death.

         The defense only called two witnesses in the guilt phase. First, Lacy Harpe, O'Brien's former girlfriend, testified that O'Brien had spoken to her about the murder before he was arrested. O'Brien had given her some jewelry, and she explained that he told her at some point that “him and [Snyder] and this other guy went... inside this lady's garage that was open and into the house and killed her for her car and $20 and broke her neck.” Second, Ken Whitlatch (one of the two officers who came to the Daher home and met Annie) testified that he interviewed one of the eyewitnesses who had seen the three men walking in the neighborhood. The parties then stipulated that the eyewitness drew for Officer Whitlatch a picture of the tattoo he saw on the right side of Perez's neck.

         The jury found Perez guilty on all four charged counts. The penalty phase began a week later. The prosecution presented evidence of several uncharged prior crimes: a 1992 mugging, a rape of a minor from 1992 or 1993, an assault from 1994, and some violent incidents from when Perez was incarcerated. The prosecution also called Mrs. Daher's two daughters, who described how Mrs. Daher's death had impacted their lives. The defense's penalty-phase case consisted of rebuttal testimony about the uncharged prior crimes, as well as mitigating evidence from over a dozen witnesses who had known Perez at different times in his life. The witnesses chronicled how Perez's teenaged parents abused and neglected him, as well as how Perez had from a young age been surrounded by drugs and violent crime. His parents sold and used drugs in front of him. Perez's father would sometimes blow marijuana smoke into Perez's face when he was a baby, and he was taught how to smoke a marijuana joint when he was a toddler. Perez attended four different schools from kindergarten through first grade, and his numerous absences from school forced him to repeat the first grade. As a teenager, Perez served as a lookout while his father committed burglaries and other crimes, often stealing money to buy drugs. When Perez was nine, his mother was living with a man who sold drugs from his home. Perez spent a night at the house when two armed men broke in, demanding money and drugs. The men tied up Perez and his mother, threatening to shoot Perez in the head.

         Perez later experienced more stability living with his grandmother, but she died of a stroke when Perez was 12. Perez soon began committing crimes and went in and out of foster care, youth homes, and work camps before he was committed at age 14 to the California Youth Authority (CYA). Perez was one of the youngest wards in the CYA system at the time. The defense presented testimony from an expert on juvenile detention facilities, who described violence, abuse, and chaos in CYA facilities during this period. The jury also heard from a psychologist who characterized Perez's childhood as “remarkably unstable” and “overwhelmed with chaos, violence, and loss.” She explained that “dissocial behavior was the norm” in Perez's family. The state's rebuttal evidence consisted of new testimony on the uncharged prior crimes.

         The jury returned a verdict of death on November 16, 2001. After defense counsel moved to modify the sentence, the trial court ruled that the aggravating factors outweighed the mitigating ones and the defendant had shown “no sense of wrongdoing or remorse.” The court sentenced Perez to death for the murder count, as well as six years for burglary, four years for robbery, and two years for vehicle theft.


         A. Pretrial issues

         1.Counsel's conflict of interest

         Perez claims his lead attorney, William Egan, Jr., faced a conflict of interest because Egan had a few years earlier represented a client named Yvonne Eldridge in a criminal trial before Perez's trial judge, Judge Peter Spinetta. Judge Spinetta ruled in the Eldridge case that Egan rendered ineffective assistance of counsel to Eldridge. Perez's case was assigned to Judge Spinetta on November 5, 1999. An appeal of Judge Spinetta's ineffectiveness ruling in Eldridge's case was pending in the Court of Appeal at that time. Then, several months before Perez's trial began, the Court of Appeal remanded Eldridge's case for further factual findings. Judge Spinetta held an evidentiary hearing and then ruled again that Egan had been ineffective at Eldridge's trial. The appeal of this ruling was pending throughout Perez's trial. If the Court of Appeal upheld Judge Spinetta's ruling, the judge may have had to file a report with the state bar detailing Egan's conduct in Eldridge's case. (See Bus. & Prof. Code, § 6086.7, subd. (a)(2).) Perez argues that this ongoing connection between Egan and Judge Spinetta established a conflict of interest because Egan's “overriding concern would have been in controlling and limiting the damage already done to his relationship with the trial judge, not in vigorously defending his client.”

          a) Background

         The same day that Perez's case was assigned to Judge Spinetta, on November 5, 1999, the judge met with Egan to discuss the case. This meeting was transcribed into the trial record, though Perez was not present. Counsel for co-defendant Lee Snyder was not present either, nor was any prosecutor present. Egan and Judge Spinetta discussed whether the assignment of the case to the judge was appropriate in light of the judge's ruling that Egan had been ineffective at Yvonne Eldridge's trial. Egan shared that he found out about Judge Spinetta's ruling in Eldridge's case after a reporter called him. Egan also said that the “whole thing is definitely the worst thing that's ever happened to me in my career.” Judge Spinetta expressed sympathy and told Egan that the pending appeal in Eldridge's case would have “absolutely no impact” on his attitude toward Egan at Perez's trial.

         Throughout the conversation, Egan repeatedly stated that he preferred for Perez to be tried before Judge Spinetta. He explained that “the whole reason” he wanted to meet with the judge to discuss the issue at this early stage is that he did not want the case transferred to another judge. Egan explained that his “objective is to end up being comfortable trying the case in this court.” He added: “I want to be in this court and I want to clear the air on it.” The judge suggested that Egan discuss the issue with his client. Egan implied he would and then reiterated: “[M]y desire, whether or not it has any bearing or anything, is to have the case stay here.” The judge concluded by observing that “we need the client and the D.A. here, ” lest someone in the future alleges that the case “shouldn't have proceeded in that department, given the situation that Mr. Egan and Judge Spinetta were in at that time because of the Eldridge conflict.”

         A few days later, on November 10, 1999, Judge Spinetta met again with Egan, this time with counsel for co-defendant Snyder also present (the trials had not yet been severed). Perez was not present at this meeting, nor was any prosecutor. Judge Spinetta observed that if the Court of Appeal upheld his determination that Egan was ineffective at Eldridge's trial then “I may have to report it, and there may be an investigation in the matter.” The judge reiterated though that this possibility would not affect his attitude toward Perez's trial. He also observed that he was not putting Egan “in any conflict situation” because “the only thing that [Egan] could do to impress me in connection with [Perez's trial] would be the sort of thing that's consistent with the interest of your clients. And that is effective representation of your current client.” Egan responded that he did not think he had been placed “in a conflict situation.” The transcript does not appear to indicate if Judge Spinetta ever asked Egan if he had discussed the issue with Perez since the last meeting, and Egan did not say anything about this question on the record.

         Judge Spinetta referred throughout this second meeting to the possibility of Egan or Perez filing a Code of Civil Procedure section 170.6 motion against the judge. Section 170.6 provides that “[a] judge... shall not try a civil or criminal action... when it is established as provided in this section that the judge... is prejudiced against a party or attorney or the interest of a party or attorney appearing in the action or proceeding.” (Code Civ. Proc., § 170.6, subd. (a)(1).) Prejudice for purposes of section 170.6 is established by a motion supported by an “affidavit or declaration under penalty of perjury, or an oral statement under oath” that the assigned judge “is prejudiced against a party or attorney... so that the party or attorney cannot, or believes that he or she cannot, have a fair and impartial trial or hearing before the judge.” (Id., subd. (a)(2).) So long as the “motion is duly presented, and the affidavit or declaration under penalty of perjury is duly filed or an oral statement under oath is duly made, thereupon and without any further act or proof, ” section 170.6 requires for a different judge to be assigned. (Id., subd. (a)(4).)

         Judge Spinetta made several references to Code of Civil Procedure section 170.6 throughout his second meeting with Egan. The judge began the meeting by noting that the “first” issue that needed to be discussed “is really a nonissue, and that is whether [Perez] should exercise a 170.6 in this matter, for any reason.” He explained that the question of whether Perez or Egan should file a section 170.6 motion was “of course, for you and your client to decide” and “I don't really get involved in that one way or another.” The judge then turned the conversation to whether his potential obligations with regards to the Eldridge case created a conflict of interest. But some time later, the judge again brought up section 170.6, suggesting that the discussion the two men had been having about the potential conflict “is separate from the 170.6.” Egan responded, “Right.” The judge then reiterated at length that he did not want to discuss the topic of section 170.6: “I don't really want to comment too much about the 170.6, other than to say that's clearly simply for you and your client to decide, or you and your client, for that matter, for other reasons. And I really should not talk about that. Because, quite frankly, I don't want any appearance that I'm addressing those matters. Those are not proper matters, I don't think, for counsel and court to talk about. Those are things for you guys to decide. You have a statutory right, and judges understand that. There's a right to do those things, and there's no problem one way or the other, insofar as anybody's concerned - so far as I'm concerned.”

         In April 2000 -- five months after Perez's case was assigned to Judge Spinetta and long before Perez's trial began in September 2001 -- the Court of Appeal issued an unpublished opinion reversing Judge Spinetta's ineffective assistance ruling and remanding the case for new factual findings. Judge Spinetta then held an evidentiary hearing in September 2000. Egan testified at the hearing, explaining the choices he made while representing Eldridge. In December 2000, Judge Spinetta again ruled that Egan had been ineffective in representing Eldridge. The judge characterized Egan's choices in the case as “disastrous” and explained that Egan left the “case seriously wanting of any evidence likely to move the jurors.” The People appealed again. The Court of Appeal did not rule the second time around until September 2002, nearly a year after Perez's trial was completed. This time, the court affirmed Judge Spinetta's judgment in full.


         Both the United States Constitution and the California Constitution guarantee criminal defendants the right to the assistance of counsel unburdened by any conflicts of interest. (See People v. Doolin (2009) 45 Cal.4th 390, 417 (Doolin).) Essentially, a claim of conflict of interest constitutes a form of ineffective assistance of counsel. (Ibid.; People v. Mai (2013) 57 Cal.4th 986, 1009-1010 [“[A] claim of conflicted representation is one variety of claim that counsel provided ineffective assistance.”]; Doolin, at p. 419 [“Under our state Constitution, the right to counsel includes the correlative right to conflict-free representation.”].) In order to demonstrate a violation of the federal and state constitutions based on a conflict of interest, a defendant must show that his or her counsel was burdened by an “actual” conflict of interest -- one that in fact adversely affected counsel's performance. (Doolin, at p. 421 [“[T]he high court's analysis of Sixth Amendment conflict of interest claims has evolved into one of ineffective assistance of counsel, which requires a defendant to show counsel's deficient performance and a reasonable probability that but for counsel's deficiencies, the result of the proceeding would have been different.”].) When determining whether counsel's performance was “adversely affected” by the purported conflict under this standard, we consider whether “ ‘counsel “pulled his punches, ” i.e., whether counsel failed to represent defendant as vigorously as he might have, had there been no conflict.' ” (Id. at p. 418.) This analysis will often turn on choices that a lawyer could have made, but did not make. In order to determine whether those choices resulted from the alleged conflict of interest, we must analyze the record to determine whether a lawyer who did not face the same conflict would have made different choices as well as whether counsel's choices were the product of tactical reasons rather than the alleged conflict of interest. (See ibid. [“ ‘[W]here a conflict of interest causes an attorney not to do something, the record may not reflect such an omission. We must therefore examine the record to determine (i) whether arguments or actions omitted would likely have been made by counsel who did not have a conflict of interest, and (ii) whether there may have been a tactical reason (other than the asserted conflict of interest) that might have caused any such omission.' [Citations.]”].)

         In his opening brief, Perez contends that Egan's loyalty was divided between Perez's interests and Egan's personal interest in currying favor with Judge Spinetta. Specifically, Perez argues that because “Mr. Egan was ‘intending to retire' after this trial, his overriding concern would have been to go out with a clear record.” To accomplish this task, Perez asserts that Egan “would be unlikely to do anything at appellant's trial which could cause Judge Spinetta to cast him in an unfavorable light with regard to the state bar.” Perez also argues that “Egan's overriding concern would have been in controlling and limiting the damage already done to his relationship with the trial judge, not in vigorously defending his client.”

         Although Perez identifies these purported conflicts of interest in his opening brief, Perez fails to specify how Egan's divided loyalties affected the defense. Perez's reply brief then adds a list of specific actions he claims Egan would have taken if Egan was not burdened by a conflict of interest. What none of the examples establish is that Egan was burdened by an actual conflict of interest that adversely affected Perez's defense. Perez first points to ways in which Egan could have presented a stronger guilt phase case. He observes that Egan “called only two witnesses” during the guilt phase and “made little effort to discredit [prosecution witnesses] or point out numerous inconsistencies in their testimony.” Perez presents no explanation for how the purported conflict - Egan's supposed desire to prove that he did not deserve state bar discipline for providing ineffective assistance to another client - could possibly motivate Egan to provide weaker assistance of counsel to Perez. If anything, that desire might have motivated Egan to provide Perez more effective counsel. Because the record contains nothing that links Egan's choices to the alleged conflict, Perez has not established “that the conflict of interest adversely affected his counsel's performance.” (Mickens v. Taylor (2002) 535 U.S. 162, 174.) Perez may end up introducing new evidence in post-conviction proceedings that link Egan's choices to the alleged conflict of interest. But on the record before us at this time, we have no basis to “conclude that the only explanation for counsel's failure to” call additional witnesses and discredit the prosecution's evidence more vigorously “is the asserted conflict of interest.” (Doolin, supra, 45 Cal.4th at p. 423.)

         Although some of Egan's choices in the case may at least arguably appear consistent with the goal of remaining in the judge's good graces, alternative -- and legally permissible -- rationales are also consistent with Egan's behavior. Even if we assume Egan faced incentives to alter his behavior to remain in the judge's good graces, the question remains whether such incentives created a conflict of interest that adversely affected counsel's performance. To answer that question, we must “ ‘examine the record to determine (i) whether arguments or actions omitted would likely have been made by counsel who did not have a conflict of interest, and (ii) whether there may have been a tactical reason (other than the asserted conflict of interest) that might have caused any such omission.' [Citation.]” (Doolin, supra, 45 Cal.4th at p. 418.) The record before us at this time does not establish that any of Egan's choices were attributable to a conflict of interest. Nothing in the trial record addresses whether a different attorney would have made other choices or whether tactical considerations informed Egan's decisions. For example, for Egan's failure to file a Code of Civil Procedure section 170.6 motion, the record at this time does not even contain evidence establishing that either Egan or Perez “believe[d]” that Perez would not “have a fair and impartial trial... before the judge” as would have been required for the affidavit supporting the motion. (Code Civ. Proc., § 170.6, subd. (a)(2).) Because “[t]he record does not show that a different strategy would likely have been adopted by competent, unconflicted counsel, ” “it fails to demonstrate either conflict-driven adverse performance, or ineffective assistance, on counsel's part.” (People v. Mai, supra, 57 Cal.4th at p. 1014; see also People v. Gonzales and Soliz (2011) 52 Cal.4th 254, 310 [rejecting claims that a purported conflict of interest caused counsel to perform adversely because the “contentions reflect pure speculation, unsupported by anything in the record”].) Perez fails to establish that any “conflict of interest adversely affected his counsel's performance, ” thus his claim must be denied. (People v. Mickens, supra, 535 U.S. at p. 174.)

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

         Perez argues that the trial court violated his federal and state constitutional right to be present at judicial proceedings critical to the outcome of his case, because Perez was absent at the November 5, 1999, and November 10, 1999, discussions about Egan's supposed conflict of interest, discussed in detail in the prior section. A criminal defendant has the right under the Sixth Amendment and the due process clause to be “ ‘present at any stage of the criminal proceedings “that is critical to its outcome if his presence would contribute to the fairness of the procedure.” ' ” (People v. Perry (2006) 38 Cal.4th 302, 311 (Perry).) Our state Constitution similarly provides a “ ‘right to be personally present at critical proceedings.' ” (Ibid.) In contrast, a defendant has no right to be present at discussions on questions of law outside the jury's presence or at proceedings where the defendant's presence does not have a “ ‘ “ ‘reasonably substantial relation to the fullness of his opportunity to defend against the charge.' ” ' [Citations.]” (People v. Bradford (1997) 15 Cal.4th 1229, 1357 (Bradford).) Although the exclusion of the defendant from a critical proceeding constitutes error, it is not structural error. (People v. Mendoza (2016) 62 Cal.4th 856, 901 [“The high court has never suggested that a defendant's improper absence from any critical stage of the proceedings constitutes structural error requiring reversal without regard to prejudice.”].) Instead, we evaluate federal constitutional error for harmlessness under the Chapman beyond a reasonable doubt standard, and state law error under the Watson reasonably probable standard. (Id. at pp. 901-902; Chapman v. California (1967) 386 U.S. 18, 24 [requiring error to be harmless beyond a reasonable doubt]; People v. Watson (1956) 46 Cal.2d 818, 836 [finding prejudice unless it is “reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error”]; see also Perry, at p. 312; Bradford, at p. 1357.)

         Perez contends that the November 5 and November 10 discussions were critical stages of the proceedings -- and that Perez's presence would have contributed to the fairness of those proceedings. We have previously acknowledged that a criminal defendant “may be entitled to be present at a conference called to consider whether to remove his counsel for conflict of interest or any other reason.” (Perry, supra, 38 Cal.4th at p. 313.) Nonetheless, we need not resolve whether Perez's absence here constituted a violation of his constitutional right to be present because any such error was harmless beyond a reasonable doubt.

         What Perez argues is that he suffered prejudice because his presence at the November 5 and November 10 discussions would have enabled him to seek removal of either his attorney because of a conflict of interest, or Judge Spinetta by making a motion under Code of Civil Procedure section 170.6. Yet no prejudice arises from Perez's alleged lost opportunity to remove his attorney. A review of the circumstances associated with the proceeding in Perez's case shows why. During the discussions on the conflict of interest issue, Judge Spinetta clearly stated that he was not putting Egan “in any conflict situation” because “the only thing that [Egan] could do to impress me in connection with [Perez's trial] would be the sort of thing that's consistent with the interest of your clients. And that is effective representation of your current client.” Moreover, approximately one year later, Perez brought a motion under People v. Marsden (1970) 2 Cal.3d 118 to remove his counsel. That motion raised Judge Spinetta's prior finding that Egan provided ineffective assistance of counsel in the Eldridge case. But Judge Spinetta found no conflict of interest and stated that “there was nothing [in the Marsden proceedings] that made it appear to the court that Mr. Egan might be in some conflict of interest situation warranting the appointment of another counsel to address issues of ineffective assistance of counsel.” From this record, we can glean that even if Perez had been present at the November 5 and November 10 discussions and sought to remove his counsel based on a conflict of interest, the trial court would have denied such a motion. We hold above that Perez fails to demonstrate that his counsel had an actual conflict of interest. Accordingly, Perez's purported lost chance to seek to remove his attorney does not constitute prejudice.

         Perez also contends that if he had been present at the November 5 and November 10 discussions, he might have “exercise[d] a peremptory challenge” under Code of Civil Procedure section 170.6. Section 170.6 allows a defendant to bring a motion -- supported by an affidavit or declaration -- alleging that the assigned judge “is prejudiced against a party or attorney” such that the party or attorney “cannot, or believes that he or she cannot, have a fair and impartial trial or hearing before the judge.” (Code Civ. Proc., § 170.6, subd. (a)(1), (2).) So long as the requirements for filing such a motion are followed, section 170.6 requires a different judge to be assigned in lieu of the originally assigned one. (Id., subd. (a)(4).) According to Perez, had he been present at the November 5 and November 10 discussions, he would have learned of the conflict of interest issue and might have filed a section 170.6 motion. But irrespective of Perez's presence at the proceedings, Egan was under an obligation to raise these issues with Perez. (See Rules Prof. Conduct, rule 3-500 [“A member shall keep a client reasonably informed about significant developments relating to the employment or representation.”]; ABA Model Rules Prof. Conduct, rule 1.4(b) [“A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.”].) Indeed, Judge Spinetta urged Egan to consult with Perez multiple times about whether Perez wished to file a section 170.6 motion. During the discussion on November 10, for example, Judge Spinetta stated the following: “I don't really want to comment too much about the 170.6.... Those are not proper matters, I don't think, for counsel and court to talk about. Those are things for you guys to decide.” Perez argues in his supplemental briefing that “there is nothing in the record to indicate appellant was made aware of defense counsel's concern over the fairness of Judge Spinetta or Judge Spinetta's concern over counsel's potential conflict.” Nonetheless, just because the limited record on a direct appeal was devoid of such information does not mean that Perez lacked knowledge of the alleged conflict of interest. And even if Perez had been present, we do not know whether he would have filed a section 170.6 motion.

         Indeed, even now Perez only states it is “reasonably possible that he would have insisted that Judge Spinetta be recused” -- and does not state that he would have filed a Code of Civil Procedure section 170.6 motion. Because the discussion between the trial court and Egan resulted in the conclusion that no conflict of interest existed, it is unclear why Perez would have developed a sufficient belief of Judge Spinetta's prejudice to file a section 170.6 motion. Indeed, such a motion requires a sworn statement, under penalty of perjury, that Perez believed the judge to be prejudiced. So we have no basis to conclude that Perez suffered prejudice in this direct appeal. (Cf. People v. Davis (2005) 36 Cal.4th 510, 533 [holding lack of presence harmless where counsel had ÔÇťample opportunity to ...

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