People v. Pearson

Opinion

IN THE SUPREME COURT OF CALIFORNIA

THE PEOPLE,

Plaintiff and Respondent, v.

KEVIN DARNELL PEARSON,

Defendant and Appellant.

S212159

Los Angeles County Superior Court NA039436

August 17, 2026

Justice Corrigan authored the opinion of the Court, in which Chief Justice Guerrero and Justices Liu, Kruger, Groban, Evans, and Jackson* concurred.

*

Presiding Justice of the Court of Appeal, First Appellate District, Division Five, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.

S212159

Opinion of the Court by Corrigan, J.

In 2003, a jury convicted defendant Kevin Darnell Pearson of the first degree murder of Penny Sigler with special circumstances.1 It also found him guilty of: torture; robbery; rape; sexual penetration by foreign object; and kidnapping to commit rape and torture, along with other sex offenses; and found he used a deadly weapon.2 It found the special circumstances true based on his commission of the related crimes. It also found true the allegation that the movement of the victim during the kidnapping substantially increased the risk of harm.3 It set the penalty at death. Pearson’s convictions were affirmed but the penalty judgment was reversed because the trial court improperly excused a prospective juror for her views on capital punishment. (See People v. Pearson (2012) 53 Cal.4th 306, 327–333 (Pearson I).)4 We remanded solely for a

1 See Penal Code sections 187, 189, subdivision (a), 190.2, subdivision (a)(17), (a)(18). 2 See Penal Code sections 206, 209, subdivision (b)(1), 211, 212.5, subdivision (c), 261, subdivision (a)(2), 264.1, subdivision (a), 289, subdivision (a)(1), 667.61, subdivision (e)(3), 12022, subdivision (b)(1); 12022.3. 3 See Penal Code section 667.61, subdivision (d)(2).

4 We also reversed the personal deadly weapon use allegations for insufficient evidence and the torture-murder special circumstance allegation for instructional error, and concluded the trial court improperly sentenced defendant for

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new penalty trial and resentencing. (Pearson I, at p. 334.) A penalty phase retrial resulted in a second death verdict in 2013. This appeal is automatic. (Pen. Code, § 1239, subd. (b).) We affirm.

I. FACTS5

A. Prosecution Evidence After 11:00 p.m. on December 29, 1998, Sigler left her Long Beach home to go to the store. A friend had given her a food stamp booklet containing six dollars of stamps and asked her to buy him soda and a candy bar. The following day, Sigler’s naked body was found on a freeway embankment in Long Beach. Her body was partially covered in mulch, 10 to 15 feet from the bottom of the embankment, below a drainage ditch. The area could only be accessed from the street by scaling a six-foot chain link fence supported by wooden stakes. A substantial amount of blood was found in the drainage ditch and on the fence. Police recovered one of Sigler’s shoes, a broken wooden stake, and a food stamp book cover. An autopsy recorded 114 wounds and 25 broken bones. Sigler died from traumatic injuries to her head and neck, including multiple skull, face, and neck fractures and numerous lacerations. One ear was partially torn off, consistent with being struck with a wooden stake. Injuries to her neck and petechia in her eyes were consistent with someone standing on her neck with a boot. Her genital and anal regions were bruised and lacerated. Her vaginal tissue was torn, consistent with

both forcible rape and forcible rape in concert based on a single act of rape. (See Pearson I, supra, 53 Cal.4th at pp. 318–319, 322–324, 333.) 5 The facts as recited here were presented to the jury during defendant’s penalty retrial.

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penetration by a wooden stake. A wooden splinter was found embedded four to five inches deep at the back of her vagina. Bruising and lacerations around her abdomen and thighs were consistent with being struck by a wooden stake. There were bite marks on her breast and thigh. Arm lacerations were consistent with defensive wounds and scraping against the top of a chain link fence. All of her injuries were inflicted before her death.

Monte Gmur lived next door to defendant in Long Beach.

Gmur had a music studio in his house and regularly invited acquaintances to use it. He considered defendant a friend and saw him almost daily. One night between Christmas and New Year’s Eve in 1998, defendant, Warren Hardy, and Hardy’s brother Jamelle Armstrong, along with their friend Chris, came to Gmur’s house around 6:00 p.m. They drank for three to four hours, becoming “boisterous” and “stupid drunk” but able to walk normally. Defendant was wearing brown Dickies pants, a khaki shirt, and work boots. Hardy wore a belted black jacket and a black leather hat. At some point, defendant asked Gmur if they could use a spare room to “put Chris on the block,” which Gmur understood to mean they would beat Chris to initiate him into their gang. When Gmur refused, the group went outside and returned after a few minutes. Gmur later heard Hardy on the phone saying, “Chris is cool,” and they would “call him Playboy.”

At around 1:00 a.m. the following morning, defendant, Hardy, and Armstrong arrived at the Los Angeles home of Tiyarie Felix. Felix was Hardy’s girlfriend and the mother of their child. Defendant carried a duffle bag, which he took with him when he left.

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Later that day, Gmur heard about police activity in the area and asked defendant on the phone what they had done. Defendant replied they had “killed a white woman” but Gmur did not believe him. The next day, defendant spoke to Gmur in person and recounted the following version of events. Defendant, Hardy, Armstrong, and Chris left Gmur’s house and walked to the train station, where Chris left the group. Thereafter, defendant saw Hardy across the street punching a woman. Hardy asked the woman if she had any money, which she denied. Hardy went through her pockets and found cash. Hardy threw the woman onto the ground and began to beat her with a stake and stomp on her. The three men removed her clothes and put them in a bag. One of her shoes went missing. They lifted her body over a fence, threw her belongings into a dumpster and caught a bus to Los Angeles. After several unsuccessful attempts, Gmur eventually contacted police on January 5, 1999, and reported defendant’s admissions.

Defendant was arrested the next day. He initially denied any involvement in Sigler’s murder but admitted his presence when detectives told him he had been linked to the crime. His descriptions of events continued to evolve. Defendant next told detectives that he, Hardy, and Armstrong left Chris at the train station and were walking to catch a bus when defendant heard someone scream. He looked back and saw Hardy punching a woman. She spun away and ran toward a fence, whereupon Hardy picked up a stake and hit her in the back. The woman climbed over the fence and the three men followed. Hardy dragged her to a drainage ditch, ripped off her clothing, unzipped his pants, and demanded oral copulation. Defendant told Hardy he could get AIDS because the woman was bleeding. Hardy repeatedly hit the woman in the head and upper body

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with the stake, then thrust it into her vagina, penetrating six to eight inches. Armstrong eventually convinced Hardy to stop. Defendant and Armstrong took off their shirts, wrapped them around the woman’s wrists and legs, and moved her body further up the embankment. They put her clothing into a bag and walked toward the bus stop. They threw the stake away in a field and boarded a bus to Los Angeles where they threw the bag into a trash can. They walked to Felix’s house and spent the night.

Defendant also gave two taped statements which were played for the jury. In his first recorded statement, defendant added that, after the victim fell over the fence, Hardy chased, stomped, and punched her and beat her with the stake. The stake was about two feet long and an inch and a half wide. Defendant left his bloody shirt at Felix’s house. He did not see anyone bite the victim and denied that he or Armstrong tried to have sex with her. After the interview, he took the detectives to the crime scene and the locations he described. Neither the clothes nor the stake were recovered.

Hardy and Armstrong were arrested and interviewed.6 Detectives returned to defendant, saying his statements

6 They were tried separately for special circumstances murder, and both were sentenced to death. We affirmed Hardy’s judgment of death in People v. Hardy (2018) 5 Cal.5th 56 and the United States Supreme Court denied certiorari. (See Hardy v. California (2019) 586 U.S. 1116.) We reversed Armstrong’s death judgment for improper excusal of prospective jurors based on their death penalty views and remanded for further proceedings. (See People v. Armstrong (2019) 6 Cal.5th 735, 749–764.) The high court denied Armstrong’s petition for a writ of certiorari. (See Armstrong v. California (2019) 589 U.S. 1044.)

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conflicted with those of Hardy and Armstrong. Defendant again modified his recitation of events. In his new version, he elaborated that, after Chris left the group, defendant, Hardy, and Armstrong were walking down the street yelling, “Merry Christmas, Happy New Year,” when a woman across the street responded in kind. They walked over and started a conversation. At some point, Hardy asked her if she had money and defendant began going through her pockets. When she tried to escape, defendant and Armstrong pulled her to the ground and ripped off her clothing, as Hardy continued searching for money. Hardy and Armstrong began stomping on the woman, and Hardy said that they “have to finish this.” Defendant and Armstrong threw the woman over the fence into a drainage ditch. The three men followed and Armstrong dragged the victim to an area behind a business. Defendant raped her while Armstrong held her down. Hardy beat her with a wooden stake while defendant and Armstrong stomped on her. Defendant was wearing steel-toed work boots. Hardy and Armstrong took turns shoving the stake into the victim’s vagina. Defendant and Armstrong used their shirts to drag her up the embankment, collected her clothes, and left. They found six dollars worth of food stamps, which Hardy later spent at a market in Los Angeles. The recording of this latest statement was also played for the jury.

In 1999, Janisha Williams lived in Long Beach with her mother, Rosemary Furtado. Williams was a friend who had known defendant for about 10 years. About a week before his arrest, he came to speak with Furtado and described how he had kicked a woman six times in the head and helped move her body. After defendant’s arrest, he and Williams exchanged letters in which he acknowledged that he had kicked the victim in the

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head six times and helped move her body and that “now he has to pay.” Williams testified she and defendant were members of the Capone Thug Soldiers (CTS) gang, which had about 30 members. Defendant was known as “Scrappy” and had a hot temper. The gang engaged in violent conduct and would initiate new members by “jumping them in.” Williams had seen defendant hit people on bicycles with sticks and kick them.

Furtado had known defendant nine to 12 years and considered him like a son. Sometime before his arrest, defendant came to speak to her, but she was busy. He wrote to her from jail admitting he had kicked the victim four or five times. He wrote that the victim had been raped but he did not remember who had done so. Defendant claimed Hardy and Armstrong beat the victim and he kicked her after she was unconscious. Furtado had considered defendant a “very sweet” person but modified her views after his convictions.

Steven Lam, Furtado’s husband and Williams’s stepfather, overheard some of defendant’s conversation with Furtado. Defendant was crying and said he had done “something that he shouldn’t have.” After his arrest, defendant wrote Furtado a letter wherein he admitted kicking the victim six times in the head but denied killing her. Lam had known defendant for seven years and believed he was a good person. His opinion changed after defendant was convicted in the earlier trial.

In January 1999, police recovered several items from Felix’s home, including Dickies pants and some boots that Gmur identified as defendant’s, a tan shirt, and Hardy’s black leather jacket and hat. Blood stains on the clothing and boots matched Sigler’s DNA. Armstrong’s blood and semen were found on

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another shirt. A store clerk identified Hardy as a customer who used some food stamps around New Year’s Day 1999. The food stamps matched the booklet cover recovered at the crime scene.

In February 2002, while defendant was awaiting trial, ten razor blades were found under the mattress in his jail cell. A six by 24 inch piece of plastic was found under his bunk. Officers also recovered magazines, rolled up newspapers, 60 pieces of cloth, and a bottle of bleach. All were items of contraband that could be fashioned into weapons.

Sigler’s son testified he was in ninth grade when his mother was murdered. He dropped out of high school after her death, and the murder still affected him both emotionally and physically.

B. Defense Evidence Defendant presented his retrial defense through three witnesses: Delisa King, Eugeniuz Bland, and James McGee. In 1990, when defendant was about 13 years old, he came to live with King, Bland, and their six children. King knew defendant’s mother Collette and had visited her house, which was unkempt and unsanitary. Defendant attended high school in Long Beach and had joined the ROTC but did not graduate. He and King’s son Jarod were members of CTS, which King described as a rap group, not a gang. Defendant joined the Job Corps. He moved from King’s home around 1995 and lived with Jarod. King trusted defendant with her children and still loved him. She believed the crimes were uncharacteristic for him.

Bland went to high school with defendant’s mother and considered defendant a part of his family. He knew CTS to be a rap group and was not aware that its members engaged in criminal activity. He did not know defendant to be violent and

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thought the crimes were out of character for him. Although he considered the crimes to be “pretty horrendous” and thought defendant should be punished, Bland still loved defendant and his opinion of him had not changed.

James McGee grew up with King and Bland and often saw defendant at their home. Defendant joined in family activities and played cards with McGee. Defendant never acted violently and seemed passive. He thought defendant was a good person and considered the crimes unlike him. His convictions did not change McGee’s mind about defendant’s character.

The parties stipulated that defendant had no prior convictions before this case.

II. DISCUSSION

A. Penalty Retrial Issues 1. Reappointment of Original Trial Counsel for the Retrial

Defendant makes various challenges to the reappointment of his original trial counsel to represent him at the penalty retrial.7 For the reasons discussed below, we reject his claims.

a. Background

Upon remand following reversal of the initial death judgment, defendant first appeared before Judge Tomson T. Ong at the Long Beach courthouse on March 21, 2012. He was present with attorney Nancy Sperber, who had represented him at his first trial before Judge Ong. Judge Ong granted Sperber’s request to continue the matter to April 5, 2012, to allow further

7 Defendant claims violations of his rights under the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution, as well as “their state counterparts.”

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discussions with the district attorney’s office about whether it would retry the penalty phase.

Meanwhile, on March 27, 2012, Sperber e-mailed Conrad Petermann,8 who had represented defendant on appeal, to inform him of her reappointment as defense counsel. Petermann left Sperber a phone message explaining that he had filed a habeas petition on defendant’s behalf alleging Sperber had rendered ineffective assistance of counsel at the first trial. In light of the habeas petition, Petermann urged Sperber to declare a conflict of interest and withdraw as defense counsel for the retrial. The next day, March 28, 2012, Sperber sent a letter to Judge Patricia M. Schnegg, explaining that she had appeared on March 21 before Judge Ong “in order to continue my representation of the defendant, pending a decision as to that issue from the Capital Case Committee.” Sperber indicated that Judge Ong’s clerk relayed “that [her] continuing representation had been approved” and she had confirmed this with a Mr. Keo Senesombath, apparently an employee of the superior court. After hearing from Petermann about the pending habeas petition, Sperber “immediately informed Mr. Senesombath of

8 After original briefing was completed in this case, we granted Petermann’s petition to withdraw as appellate and habeas counsel for health reasons. Eric S. Multhaup was appointed to replace him. (See People v. Pearson, S212159, Supreme Ct. Mins., Dec. 12, 2018.) Petermann’s original habeas petition including allegations of ineffective assistance was ultimately denied. Claims relating to the first penalty phase were denied as moot in light of the reversal and remand on direct appeal. (In re Pearson, S191872, Supreme Ct. Mins., July 12, 2017.) Defendant filed a second habeas petition in 2016 which is currently pending before us. (See In re Pearson, S235715, matter pending.)

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these facts, and again, he confirmed that I should continue to represent Mr. Pearson, and that I should prepare my proposal for consideration.” Sperber stated that she was willing to represent defendant for a set rate. An order dated April 2, 2012, stated, “The Judicial Panel, having reviewed Counsel’s motion submitted pursuant to the Memorandum of Understanding Re: Central District Capital Case Appointment,” reappointed Sperber “as counsel to represent [Pearson] on the re-trial of the penalty phase.”

On April 5, 2012, defendant was present when Sperber informed the court that she had spoken to appellate counsel Petermann, who expressed his belief she should not be representing defendant on remand because he had filed a habeas corpus petition on defendant’s behalf alleging her ineffective assistance at the first trial. Sperber told the court: “I informed the judges downtown of [the habeas petition]. It was my understanding that they were served with the petition and they were aware of it.” She understood that the Capital Case Committee had reviewed the matter and “felt that I should, nevertheless, be re-appointed and be representing Mr. Pearson. I have a copy of that order. It looks like it was signed on April 2nd of this year.” The court expressed surprise at the ineffective assistance claims in light of Sperber’s “outstanding service at trial.” Sperber indicated she would raise the issue with “the judges downtown. I will let them know of the situation.” Judge Ong noted for the record that he “is not involved in the appointment process.” The prosecution elected to retry the penalty phase.

On August 15, 2012, appellate counsel Petermann filed a motion to remove Sperber as defendant’s trial counsel. The motion recounted arguments made in his habeas petition, which

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alleged various constitutional violations, including ineffective assistance of counsel, and asserted that Sperber had “committed numerous errors both during the guilt and penalty phases of the trial.” Petermann argued that Sperber labored under a conflict of interest and should be relieved as counsel for the retrial.

When Petermann appeared for hearing on his motion on August 30, 2012, the court indicated it would continue the matter to allow Petermann to present additional supporting information. The court then asked defendant about his wishes and whether he had authorized Petermann to file “the motion.” Defendant said that he had. In light of defendant’s response, the court stated it would “treat [Petermann’s filing] as a Marsden motion” (People v. Marsden (1970) 2 Cal.3d 118) and scheduled a Marsden hearing for September 13, 2012. It told Petermann that his “appearance is not necessary.” Petermann objected but acquiesced and left the courtroom. The trial court thereafter held an unrelated in camera hearing.9 Also, on August 30, following a recess, Sperber told the court that she and her investigator conferred with defendant, who said he only gave Petermann permission to file the motion “because [defendant] thought he was protecting my bar license by doing that, by saying he authorized it.” The following colloquy between the court and defendant ensued:

THE COURT: Mr. Petermann has filed papers in this courtroom, okay. The person with legal standing to file

9 At the hearing, Sperber and a representative from the public defender’s office discussed her access to case files from the prior trial.

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papers [here] is your trial lawyer, okay. . . . [¶] That’s Ms. Sperber and that’s why I asked you, since [Petermann’s] filing papers, I want to know if you authorized him and [t]old him to file those papers in this courtroom. . . . [¶] Did you give him permission to file those papers in this courtroom? THE DEFENDANT: I — once again, I did give him permission because he is my appellate attorney. THE COURT: No, no, no, no. Did you give him permission to file it in trial court? He has permission to file [the habeas petition] in the Supreme Court. Did you give him permission to file in my court, trial court, the [removal] motion that he filed? He filed a motion to ask Ms. Sperber to be excused as a lawyer in this case. Did you give him that permission to file that motion? THE DEFENDANT: No, no. THE COURT: All right. Are you sure? THE DEFENDANT: I — THE COURT: Positive. Right. I want to make sure. THE DEFENDANT: I’m trying to — okay. You saying [sic] he can file it in — THE COURT: In the Supreme Court. He is the lawyer. Okay. He’s your appellate lawyer. In the trial court, Ms. Sperber is the lawyer. Your appellate lawyer has filed a motion, okay, in the trial court, okay, on your behalf, okay, when he’s not that attorney of record. So my question to you is, did you give him permission to file that motion in the trial court? THE DEFENDANT: No.

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The court also asked defendant if, when he said earlier that he had authorized Petermann to file the removal motion, he did so “because you thought you were protecting Ms. Sperber’s interests.” Defendant replied: “Let me clarify. What I was saying to Ms. Sperber is that Mr. Petermann came to see me at the county jail. He was explaining everything that was going on with the appeals process and that usually the appellate — appellate cases, all trial attorneys are referred to as incompetent attorneys when they file any paperwork. That’s what I was letting Ms. Sperber know that, I gave him permission to file that. But when you asked did I say it, I thought that you was talking about for the higher court, not for the trial.” Sperber urged that Petermann was interfering with her attorney-client relationship with defendant, and the court signed an order limiting jail visitations to Sperber and her investigator. Sperber later clarified that, under the jail procedure adopted, she was to be called for authorization if another attorney tried to visit defendant.

Before the scheduled Marsden hearing on September 13, Petermann filed a supplemental brief in the trial court, enlarging upon the allegations in the habeas petition. He asserted that Sperber had been ineffective at the first trial by failing to call “mental state experts” at the guilt phase and to pursue various mitigation themes at the penalty phase. Petermann maintained that Sperber now had a conflict of interest because she “may face the dilemma of pursuing her client’s multiple defenses that by implication require the admission of serious omissions in the previous preparation of her client’s defense.”

On September 13, Sperber moved to strike Petermann’s motion because defendant did not authorize him to file it. The

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court asked defendant directly if he was “now withdrawing this motion to remove Ms. Sperber from his case,” to which he responded, “Yes.” The court struck Petermann’s unauthorized motion.

b. Right to Presence When Appointment was Made Defendant first contends he had a statutory and constitutional due process right to be present when Sperber was initially reappointed as trial counsel by the Capital Case Committee. The claim lacks merit. Defendants have the right to appointed counsel if they cannot afford to engage one. (See Gideon v. Wainwright (1963) 372 U.S. 335, 341–345; U.S. Const., 6th Amend.; Cal. Const., art. I, § 15.) In capital cases, that right is codified in Penal Code10 section 987, subdivision (b), which provides in part that “[i]f the defendant is unable to employ counsel, the court shall assign counsel to defend them.” As the Attorney General observes, neither that provision nor section 987.05, cited by defendant, provides any right for a defendant to be present when the initial appointment is made. “Section 987.05 states that a trial court shall appoint an attorney who represents, on the record, that he or she will be ready to proceed with the preliminary hearing or trial within the statutory time or, in unusual circumstances, by a reasonable time as determined by the court.” (People v. Ng (2022) 13 Cal.5th 448, 504.) The statute deals most directly with ensuring that appointed counsel will have sufficient time to prepare for presenting defendant’s case and that he or she will be ready and able to do so within a reasonable time. It does not provide that

10 Subsequent statutory references are to the Penal Code unless noted.

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defendant’s presence is required when the appointment is made.11 “ ‘A criminal defendant accused of a felony has the constitutional right to be present at every critical stage of the trial . . . .’ [Citations.] ‘A critical stage of the trial is one in which a defendant’s “ ‘absence might frustrate the fairness of the proceedings’ [citation], or ‘whenever his presence has a relation, reasonably substantial, to the fullness of his

11 Section 987.05 states in full: “In assigning defense counsel in felony cases, whether it is the public defender or private counsel, the court shall only assign counsel who represents, on the record, that he or she will be ready to proceed with the preliminary hearing or trial, as the case may be, within the time provisions prescribed in this code for preliminary hearings and trials, except in those unusual cases where the court finds that, due to the nature of the case, counsel cannot reasonably be expected to be ready within the prescribed period if he or she were to begin preparing the case forthwith and continue to make diligent and constant efforts to be ready. In the case where the time of preparation for preliminary hearing or trial is deemed greater than the statutory time, the court shall set a reasonable time period for preparation. In making this determination, the court shall not consider counsel’s convenience, counsel’s calendar conflicts, or counsel’s other business. The court may allow counsel a reasonable time to become familiar with the case in order to determine whether he or she can be ready. In cases where counsel, after making representations that he or she will be ready for preliminary examination or trial, and without good cause is not ready on the date set, the court may relieve counsel from the case and may impose sanctions upon counsel, including, but not limited to, finding the assigned counsel in contempt of court, imposing a fine, or denying any public funds as compensation for counsel’s services. Both the prosecuting attorney and defense counsel shall have a right to present evidence and argument as to a reasonable length of time for preparation and on any reasons why counsel could not be prepared in the set time.”

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opportunity to defend against the charge’ [citation].” ’ [Citation.] A defendant ‘has no right to be present [at] routine procedural discussions that could not affect the outcome of the trial.’ [Citation.] ‘Thus a defendant may ordinarily be excluded from conferences on questions of law, even if those questions are critical to the outcome of the case, because the defendant’s presence would not contribute to the fairness of the proceeding.’ [Citation.] We review de novo a defendant’s claim that he was entitled to be present during a chambers conference.” (People v. Oyler (2025) 17 Cal.5th 756, 795 (Oyler).) “The burden is on a defendant to show that the ‘ “absence prejudiced his case or denied him a fair and impartial trial.” ’ ” (People v. Caro (2019) 7 Cal.5th 463, 479.)

Defendant cites no case holding that the initial appointment of counsel is a critical stage of trial requiring his presence. “[T]he right to counsel of choice does not extend to defendants who require counsel to be appointed for them.” (United States v. Gonzalez-Lopez (2006) 548 U.S. 140, 151; People v. Hernandez (2012) 53 Cal.4th 1095, 1106.) As defendant had no constitutional right to have any particular counsel appointed, including someone other than Sperber, it seems doubtful that he nevertheless had a constitutional right to be present when that appointment was made. Although defendant argues he was deprived “of his right to make an informed decision regarding the appointment of conflict free counsel,” he does not explain how his presence, at the time of Sperber’s appointment, would have facilitated such decisionmaking. Indeed, any claim of prejudice appears belied by the circumstance that defendant later expressly withdrew Petermann’s motion to remove Sperber as his trial counsel.

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To be sure, a defendant has a right to be present at a proceeding to determine whether counsel actually has a conflict of interest or otherwise should be removed. (See People v. Perry (2006) 38 Cal.4th 302, 313.) Sperber’s initial appointment by the Committee was not such a proceeding but one more akin to a “routine procedural matter for which the defendant’s attendance is not required.” (Id. at p. 314; see Oyler, supra, 17 Cal.5th at p. 795.) Further, defendant was not deprived of his right to make an informed decision as to counsel or denied the opportunity to litigate the issue. Once counsel has been appointed, if a defendant has an objection or reservation about the lawyer who has been provided, he may personally seek counsel’s replacement through the Marsden process. (See Marsden, supra, 2 Cal.3d at pp. 123–126; see also People v. Smith (1993) 6 Cal.4th 684, 690–697 (Smith).) We turn now to the court’s handling of that process here.

c. Marsden Hearing/Conflict of Interest A defendant is entitled to seek substitution of appointed counsel “whenever, in the exercise of its discretion, the court finds that the defendant has shown that a failure to replace the appointed attorney would substantially impair the right to assistance of counsel [citation], or, stated slightly differently, if the record shows that the first appointed attorney is not providing adequate representation or that the defendant and the attorney have become embroiled in such an irreconcilable conflict that ineffective representation is likely to result.” (Smith, supra, 6 Cal.4th 684, 696; see People v. Carter (2024) 15 Cal.5th 1092, 1099.) “Essentially, a claim of conflict of interest constitutes a form of ineffective assistance of counsel.” (People v. Perez (2018) 4 Cal.5th 421, 435.)

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On appeal here, defendant has taken conflicting positions regarding his claim of error. In his opening brief, defendant argued the trial court erred by treating the conflict of interest issue presented by Petermann’s motion as a Marsden motion. He urged the motion was initiated by Petermann, not himself. Instead, he suggested that Petermann’s motion “was and is premised on published legal authority, technical principals [sic], and supporting facts well beyond [defendant’s] knowledge, understanding, or cognizance.” In his supplemental opening brief, however, defendant changed his approach to contend that Marsden actually does apply, and the court erred by not conducting an adequate hearing. He argues Petermann’s habeas petition, which alleged ineffective assistance of counsel at the first trial, “triggered the trial duty to inquire and to hold a Marsden-type hearing.”

Initially, to the extent defendant claims the court should have conducted a Marsden hearing, the assertion fails. “If a defendant who asserts inadequate representation seeks to discharge appointed counsel and obtain a substitute attorney, the court must allow the defendant to explain the basis for this contention and to present specific instances of counsel’s inadequate performance.” (People v. Wilson (2023) 14 Cal.5th 839, 863–864 (Wilson).) However, legal authority provides that “a trial court is required to hold a Marsden hearing only when the defendant requests one — ‘the trial court is not required to conduct a Marsden hearing on its own motion’ [citation] or in response to ‘criticism of appointed counsel that has been levied by a nonparty[.]’ ” (Oyler, supra, 17 Cal.5th at p. 797.)

We have clarified that Marsden “was intended to afford protection to the defendant’s right to counsel as guaranteed by the Sixth Amendment, and the constitutional right to counsel is

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personal to the defendant and ordinarily cannot be asserted vicariously.” (People v. Martinez (2009) 47 Cal.4th 399, 419 (Martinez).) Further, “[w]e would risk encouraging interference with the attorney-client relationship were we to hold that a trial court must conduct a Marsden hearing when a third party complains concerning the representation received by a defendant.” (Id. at p. 420.)

Defendant did not seek to remove Ms. Sperber as his counsel and clarified that he had not authorized Petermann to do so on his behalf. However, in light of his claims here, we turn to the facts reflecting what occurred in the trial court. Following Petermann’s presentation, and defendant’s initial indication that he had authorized Petermann to make it, the court said it would “treat it as a Marsden motion.” It informed Petermann that he need not remain and scheduled a Marsden hearing for a later date. Petermann was never appointed or retained to represent defendant in the trial court. He did not seek such an appointment, nor did defendant request it.

After a recess following Petermann’s departure from the courtroom, the trial court, in defendant’s presence, directly addressed the potential for conflict and clarified defendant’s understanding and wishes in that regard. Sperber informed the court that she had spoken to defendant during the recess and he said he had authorized Petermann’s motion to remove Sperber because he believed he was protecting Sperber’s bar license by doing so and that he did not, in fact, want Sperber removed as counsel. Defendant clarified that Petermann, during a jail visit, “explain[ed] everything that was going on with the appeals process and that usually . . . appellate cases, all trial attorneys are referred to as incompetent attorneys when they file any paperwork.” Defendant had given Petermann permission “to

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file that” but when the court had previously asked if defendant had authorized Petermann’s motion, defendant “thought that [the court] was talking about for the higher court, not for the trial.” On the date of the scheduled Marsden hearing, Sperber reminded the court that defendant had “indicated that he did not authorize Mr. Petermann to file these motions” to remove Sperber as counsel and “Mr. Pearson has never expressed to me a desire to [have Sperber] be relieved as counsel.” The court asked defendant: “Mr. Pearson, there has been paperwork filed by Mr. Petermann to try to remove Ms. Sperber from this case. The first question that I have is are you now withdrawing this motion to remove Ms. Sperber from this case?” Defendant responded he was, and the trial court struck Petermann’s motion.

As the record reflects, defendant was well aware of Petermann’s opinion as to Sperber’s handling of the first trial and Petermann’s view that she should not continue to represent him on retrial. Upon questioning from the trial court, defendant personally spoke to his knowledge of the circumstances and clarified he did not wish to remove Sperber as his trial counsel and had not intended to authorize Petermann to seek her removal. At no time did defendant express any dissatisfaction with Sperber’s representation. Under these circumstances, the trial court properly struck Petermann’s motion and had no duty to conduct a hearing under Marsden. (See Martinez, supra, 47 Cal.4th at p. 420.)

Independent of Marsden, however, “[w]hen the trial court knows, or reasonably should know, of the possibility that defense counsel has a conflict of interest, it has a duty to inquire into the matter.” (Wilson, supra, 14 Cal.5th at p. 862, citing Wood v. Georgia (1981) 450 U.S. 261, 272.) We addressed a

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similar claim in Wilson, wherein the defendant argued the filing of a habeas petition alleging defense counsel had rendered ineffective assistance at a prior trial created a conflict of interest requiring counsel’s removal at the retrial. As in Wilson, “[w]e need not resolve whether the existence of pending ineffective assistance claims was sufficient to put the court on notice of a potential conflict. Even assuming the court should have inquired about a potential conflict, defendant fails to show prejudice.” (Wilson, at p. 862.) “To demonstrate a prejudicial conflict of interest, a defendant must show that defense counsel was burdened by an actual conflict of interest that adversely affected counsel’s performance.” (Ibid.)

Defendant’s only theory of an actual conflict rests on the fact that Sperber did not pursue issues of lingering doubt and other mitigation themes his habeas counsel claimed were not adequately offered at the first trial. Defendant argues here that Sperber did not present this evidence at retrial because doing so would tacitly admit she did, in fact, offer ineffective assistance at the first trial.

This is little more than rank speculation unsupported by the appellate record. As described in Pearson I, Sperber initially presented the testimony of defendant’s mother and a neighbor, who described defendant’s difficult childhood and his stepfather’s abusive behavior, defendant’s brother who testified CTS was a rap group, not a gang, and a psychiatrist who described defendant’s upbringing as well as his dynamic with Hardy and Armstrong, and who opined that defendant was afraid of his cohorts and too paralyzed during the crimes to intervene. (Pearson I, supra, 53 Cal.4th at pp. 314–315.) She shifted tactics at the retrial, calling three different witnesses, all family friends of defendant. These witnesses described

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defendant as a generally passive person, confirmed his difficult upbringing and stated that CTS was not a gang. They also described the positive interactions defendant had with themselves and their families. (See ante, at pp. 8–9.) As the Attorney General observes, Sperber’s change in emphasis at the retrial, to focus on good aspects of defendant’s character, was an understandable tactical choice, especially since the prior strategies of emphasizing his difficult personal and family background and minimizing his responsibility for the crime preceded the first jury’s death verdict. That counsel did not choose to double down and present additional evidence in furtherance of the same losing strategies at retrial hardly reflected that she “shaped [her] defense strategy to avoid an ineffective assistance finding.” (Wilson, supra, 14 Cal.5th at p. 863.)

Defendant’s Sixth Amendment and related due process challenges are rejected. He filed a habeas petition related to the penalty retrial before this court in 2016, concurrently with the briefing on appeal here. (See In re Pearson, S235715, matter pending.) We express no opinion as to the merits of that stillpending petition, which may be pursued on the basis of a more complete record.

d. Exclusion of Petermann from Court Proceedings

In his supplemental opening brief, defendant also argues the court violated his Sixth Amendment right to counsel by excluding Petermann “from Marsden proceedings and by precluding attorney Petermann from conducting legal visits with” defendant. Although the court initially concluded Petermann’s motion should be “treat[ed] . . . as a Marsden” and scheduled a hearing for a later date, the court ultimately did not

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conduct a Marsden hearing because defendant expressly withdrew Petermann’s unauthorized motion. As noted, the court conducted an unrelated in camera hearing relating to Sperber’s access to records held by the public defender’s office. (See ante, p. 12, fn. 9.)

As to jail visits, as noted, Petermann was not precluded from visiting defendant but was required to seek Sperber’s authorization for visits in light of the concern that he was interfering with the attorney-client relationship. (See ante, p. 14.) Ultimately, we need not decide whether this procedure was proper because the appellate record does not reflect whether Petermann was ever actually precluded from visiting defendant in jail as a result of this procedure or otherwise. “Any matters outside the record suggesting that [defendant] was prejudiced may be raised in a petition for habeas corpus.” (People v. Miranda-Guerrero (2022) 14 Cal.5th 1, 23.)

2. Prosecutorial Misconduct Defendant contends the prosecutor committed misconduct in her cross-examination of the defense witnesses. He argues the prosecutor asked them improper questions about their knowledge of details regarding the crime, proffered irrelevant evidence, and attempted to turn family members against each other. These claims lack merit.

a. Background

At the penalty retrial, the defense called three witnesses:

Delisa King and Eugeniuz Bland, with whom defendant lived as a teenager; and James McGee, a family friend. On direct examination, they all generally described defendant as nonviolent and stated their belief that the crimes here were out of character for him. Even in light his convictions, they affirmed

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their affection and support for him. (See ante, pp. 8–9.) During King’s cross-examination, the prosecutor noted King had told a defense investigator she “felt that the defendant was respectful.” The prosecutor inquired whether King believed it was “respectful” to rape or murder a woman. King responded: “Disrespectful — I don’t see where dis — it’s totally out of character. Disrespecting someone and murdering someone [are] two different things here to me. So being disrespectful in murdering somebody, I don’t think anybody should be raped. So I don’t think that it — I mean, it — my goodness. [¶] It’s disrespectful to murder anyone. I don’t think anyone should be murdered by anybody’s hands.” Although King agreed it was “disrespectful” to torture someone, she maintained her view that defendant was not “disrespectful” even though he had tortured and raped a woman. The gist of the exchange seems to be that King was not suggesting committing rape, torture, or murder would be respectful. Instead she was expressing the view that defendant was generally a respectful person and the crimes of which he stood convicted were out of character for him. King acknowledged that she had no contact with defendant since his arrest, and none of his letters to her had touched on the crimes or described how he had committed them. The prosecutor then asked a series of questions about whether she was aware of various aspects of the offenses. These included defendant’s admission that Sigler was held down while defendant raped her, that he had repeatedly stomped on her with steel-toed boots, kicked her repeatedly in the head, and let her body roll down an embankment. The prosecutor showed King crime scene photos of the victim’s nude body and asked her if that evidence changed her “opinion as to how you feel about the defendant.” King responded they did not. On recross-examination, the prosecutor

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asked King if she would still let defendant babysit her children, to which she replied, “I trust him so I don’t think he would do any harm to my children at all.”

Bland was called next and described his relationship with defendant on direct examination. Defense counsel asked him whether, if told that defendant had raped, tortured, and murdered a woman and “threw her over a fence on a freeway embankment along with two people,” such conduct would be out of character for defendant. Bland agreed the crimes described are “pretty horrendous” but he would not think defendant was capable of committing such crimes. Bland agreed that what defendant did was wrong and he should be punished, but Bland still loved him and the crimes did not affect how Bland felt about him. On cross-examination, the prosecutor asked if knowing that defendant had been convicted of murder and rape using a wooden stake changed his opinion of defendant. Bland responded, “I’m not happy about it. This is a bad crime,” but he considered defendant family and his opinion remained unchanged. As with King, the prosecutor asked Bland whether he had contact with defendant after his arrest, whether they had talked about the crimes, and whether defendant said the victim “begged him for her life.” Bland responded they had no contact after defendant’s arrest. The prosecutor asked if the crime scene photos changed his view. Bland conceded they were “bad” but that they did not change his opinion, though he indicated he did not know whether he would still let defendant come over for dinner knowing the details of the crimes. Bland stated he trusted defendant and “knew him at one time” but conceded he had not “seen him in a long time.”

Defense counsel took a similar approach on McGee’s direct examination, eliciting that he was aware of defendant’s crimes

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and disapproved of them, but did not consider them reflective of defendant’s character. Knowing about them did not change McGee’s opinion of defendant. Shown crime scene photos by defense counsel, McGee maintained they did not change his views. On cross-examination, McGee confirmed that he still believed defendant was a good person notwithstanding his convictions. As with King, the prosecutor noted McGee had indicated defendant was “respectful,” and asked if he thought it respectful to rape and torture a woman and beat her with a wooden stake. McGee agreed that would not be respectful. He did not have contact with defendant after his arrest nor did they discuss the crimes or the specifics of the attack. However, he confirmed he was now aware of the details and that they did not change how McGee felt about defendant.

b. Discussion

Defendant contends the prosecutor’s cross-examination of defense witnesses elicited irrelevant evidence because they were “only competent to render opinions about the character of the boy that they knew when they knew him” but “not competent to render opinions about the character of one who committed the acts underlying” the current offenses. He suggests the prosecutor was merely attempting to inflame the jury by turning the defense witnesses against him.

Initially, as the Attorney General observes, although the defense objected to the prosecutor showing King crime scene photos, counsel never objected to questioning about whether defendant had mentioned various details of the crimes to them. Defendant asserts any objection would have been futile in light of the court’s ruling allowing the prosecutor to show the photos to King. However, King’s cross-examination as to her

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knowledge of details of the attack occurred before the prosecutor attempted to show her the photos and counsel lodged no objection to those questions. Nor was there an objection to similar questions posed to the other witnesses, and the defense itself showed the photos to subsequent witnesses. The failure to object to a line of questioning generally forfeits a claim of error. (See People v. Clark (2016) 63 Cal.4th 522, 587 (Clark); Evid. Code, § 353, subd. (a).) Defendant asserts that, if his claim has been forfeited, his counsel rendered ineffective assistance by failing to object.

Those arguments also fail on the merits. The defense chose to present character witnesses and solicit their views on defendant’s current character. The defense is entitled to do so as part of its case in mitigation. It is defendant’s current character that is relevant on the issue of mitigation as weighing against a death penalty verdict. “The applicable law is settled: ‘In general, the prosecution may not present evidence of a defendant’s bad character during its penalty phase case unless the evidence is admissible as one of the aggravating factors listed in section 190.3.’ [Citation.] ‘ “[W]hen the defense presents mitigating evidence of a defendant’s good character, it has put the defendant’s character in issue, thus opening the door to prosecution evidence tending to rebut that ‘specific asserted aspect of [the defendant’s] personality.’ [Citation.] Such rebuttal evidence, however, must be specific and ‘must relate directly to a particular incident or character trait defendant offers in his own behalf.’ ” ’ ” (People v. Thompson (2016) 1 Cal.5th 1043, 1125 (Thompson).) “ ‘The theory for permitting such rebuttal evidence and argument is not that it proves a statutory aggravating factor, but that it undermines defendant’s claim that his good character weighs in favor of mercy.’ ” (People

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v. Loker (2008) 44 Cal.4th 691, 709.) “A prosecutor does not commit misconduct by challenging the credibility of a defense witness or the basis for the witness’s good opinion of a defendant.” (People v. Earp (1999) 20 Cal.4th 826, 894.)

Here, the defense sought to persuade the jury by offering testimony that those close to him currently considered him a respectful, nonviolent person whom they loved and trusted and that his crimes were an aberration. The prosecution was permitted to test, through cross-examination, the bases of these opinions and whether they were persuasive. The witnesses’ unfamiliarity with the details of the crimes was a relevant consideration bearing on the weight of their testimony. As we observed in Thompson: “Defense counsel asked the witness to describe defendant’s character, and the evidence of [his] good character thereby opened the door to legitimate cross- examination about [his] bad character.” (Thompson, supra, 1 Cal.5th at p. 1126.) It should be noted as well that the cross- examination here was consistent with Thompson’s observation that rebuttal evidence as to defendant’s character “ ‘ “must be specific and ‘must relate directly to a particular incident or character trait defendant offers in his own behalf.’ ” ’ ” (Id. at p. 1125.) A character witness is called to persuade the jury that the witness knows the defendant and holds them in positive regard. Fair cross-examination is allowed to undermine that assertion and persuade the jury not to adopt it. The opponent of the character witness is entitled to elicit testimony tending to show the witness’s opinion is flawed, ill-informed, or not entitled to credence.

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3. Ineffective Assistance of Counsel Defendant contends his counsel rendered ineffective assistance in four instances. His claims lack merit. “ ‘ “ ‘ “In assessing claims of ineffective assistance of trial counsel, we consider whether counsel’s representation fell below an objective standard of reasonableness under prevailing professional norms and whether the defendant suffered prejudice to a reasonable probability, that is, a probability sufficient to undermine confidence in the outcome.” ’ ” ’ ” (People v. Barrett (2025) 17 Cal.5th 897, 969; see Strickland v. Washington (1984) 466 U.S. 668, 687–688.) “ ‘On direct appeal, a finding of deficient performance is warranted where “(1) the record affirmatively discloses 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.” [Citation.] “[W]here counsel’s trial tactics or strategic reasons for challenged decisions do not appear on the record, we will not find ineffective assistance of counsel on appeal unless there could be no conceivable reason for counsel’s acts or omissions.” ’ ” (People v. Dunn (2025) 18 Cal.5th 129, 169 (Dunn); see People v. Mendoza Tello (1997) 15 Cal.4th 264, 266–267.)

a. Trivializing mitigation evidence during voir dire

Defendant contends his counsel made statements during jury selection that tended to trivialize defendant’s childhood background as mitigating evidence. He cites to three comments made by counsel during the questioning of three prospective jurors during individualized, sequestered inquiries regarding their jury questionnaire responses. These prospective jurors ultimately did not sit on the jury. Accordingly, the remarks

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complained of could not have influenced the decision returned by the jurors who considered the case. During the questioning of Prospective Juror No. 8177, defense counsel explained the difference between aggravating and mitigating factors and that the jury would have to determine the nature of particular evidence, including “factors regarding Mr. Pearson’s life before the incident.” The prospective juror stated, “I don’t understand why before the incident has anything to do with the incident that happened.” After further explaining that the jury can only return a death verdict if the aggravating circumstances outweighed the mitigating ones, defense counsel returned to the prospective juror’s comment:

[Defense counsel:] Now going to your question. Where [the questionnaire] says, ‘Do you believe that childhood experiences should be considered in determining the appropriate sentence to be imposed?’ And you said ‘No,[] can but should not be the sole reason.[’] Now the court is going to instruct you that you can consider childhood experiences. You can consider, for instance, if let’s say somebody didn’t get a puppy and they really wanted one and you think that had something to do with the way he reacted later. You can say that’s a mitigating factor or you can say that has nothing to do with anything, but you are allowed to consider it. You are allowed to give it any value you place on it going form zero to 100, it doesn’t matter. If you don’t think it has value in your deliberations then you dismiss it, does that make sense? [Prospective Juror No. 8177:] Yes.

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[Defense counsel:] It’s up to the individual. The person sitting next to you might think it does have importance, all right[?] Defense counsel asked another jury candidate, Prospective Juror No. 7259, about a questionnaire response regarding background information. When asked, “Do you feel that someone convicted of murder during the commission of robbery, rape, rape with a wooden stake or torture should be sentenced to death without consideration of background information,” the prospective juror had responded, “ ‘Probably’ ” and that “ ‘background cannot justify brutality.’ ” Defense counsel explained: “Now, the purpose of this portion of the trial is for you to consider the facts of the case, which may include background information of Mr. Pearson. And the judge is going to instruct you that you can consider background information, other events that may have occurred in his life separate and apart from the case itself.” The prospective juror confirmed that they could consider that kind of information. After further discussing the role of aggravating and mitigating factors, defense counsel asked about another questionnaire response:

[Defense counsel:] Now there was a question that said, “Should someone be sentenced to life without the possibility of parole without the consideration of background information?” And you left that blank. [¶] Now, based on what I have told you, would you agree with me that background information needs to be considered for either sentence, in order for you to come up with the appropriate decision?

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[Prospective Juror No. 7259:] Yes, background information should be considered both ways, but I think I answered another [question that] at a certain age you know right from wrong. [Defense counsel:] How you consider the information is up to you. [Prospective Juror No. 7259:] Right. [Defense counsel:] Okay. You might think it’s good, somebody else might think it is not good or vice versa? [Prospective Juror No. 7259:] Okay. [Defense counsel:] You might think the fact that he never went to Disneyland, I’m not saying you are going to hear that. You might consider that to be an aggravating factor. He was probably a bad kid and somebody else might say the poor child, he missed out on a lot of fun in life. [Prospective Juror No. 7259:] Okay. [Defense counsel:] That’s what this is about. There is no right or wrong, that this is good and this is bad, it’s how you interpret it in your own mind, okay? [Prospective Juror No. 7259:] Okay. [Defense counsel:] Do you think you can have an open mind and consider both possibilities? [Prospective Juror No. 7259:] Yes. In a third instance, defense counsel again used the Disneyland analogy during examination of Prospective Juror No. 2397. Counsel explained the jury would hear evidence that individual jurors might consider to be aggravating or mitigating, including “evidence regarding aspects of Mr.

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Pearson’s life prior to the commission of this offense.” In explaining that the weighing of particular evidence “is personal to each and every juror,” counsel stated: “You might hear something about Mr. Pearson and you are not going to hear this, but I’m going to use this example when he was growing up he was never allowed to go to Disneyland and you might say poor kid that’s terrible. Somebody else might say tough luck, it’s because he was a bad boy, okay. So they are looking at it as a factor in aggravation. You are looking at it as a factor in mitigation, the very same factor. That’s what you do in this situation. [¶] The only thing that the jurors have to agree on is the punishment as their verdict, okay?” The prospective juror responded affirmatively that the juror could “do that.”

Defendant argues defense counsel improperly trivialized defendant’s difficult life experience by comparing it to being denied a puppy or a trip to Disneyland. The record belies defendant’s claim. As the Attorney General observes, the first two cited instances occurred in the context of questioning prospective jurors who expressed some doubt regarding whether a defendant’s life background should be considered at all in determining the proper penalty. Defense counsel’s examples highlighted that such background information should be considered, that each individual juror’s assessment of whether the offered information was mitigating may differ, and that jurors must make their own evaluation of the evidence. This line of inquiry served to clarify the requirement that “[a]t the penalty phase, the jurors must ‘ “ ‘make an individualized assessment of the character and history of the defendant to determine the nature of the punishment to be imposed.’ ” ’ ” (People v. Delgado (2017) 2 Cal.5th 544, 589; see CALCRIM No. 766 [Death Penalty: Weighing Process].) Counsel made clear

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that these hypothetical examples were not offered as reflecting defendant’s own experience but were only mentioned to illustrate her point about the role of mitigation in general and the need for individual consideration of the evidence by each juror. Counsel asked the questions to probe panelists’ attitudes and to evaluate whether they were willing to consider types of evidence upon which the defense might rely.

Indeed, the rule is that questioning of prospective jurors “ ‘must not be so specific that it requires the prospective jurors to prejudge the penalty issue based on a summary of the mitigating and aggravating evidence likely to be presented.’ ” (People v. Case (2018) 5 Cal.5th 1, 29.) Case cited People v. Cash (2002) 28 Cal.4th 703, which observed that “either party is entitled to ask prospective jurors questions that are specific enough to determine if those jurors harbor bias, as to some fact or circumstance shown by the trial evidence, that would cause them not to follow an instruction directing them to determine a penalty after considering aggravating and mitigating evidence.” (Id. at pp. 720–721.) “As we explained in Cash, ‘deathqualification voir dire must avoid two extremes. On the one hand, it must not be so abstract that it fails to identify those jurors whose death penalty views would prevent or substantially impair the performance of their duties as jurors in the case being tried. On the other hand, it must not be so specific that it requires the prospective jurors to prejudge the penalty issue based on a summary of the mitigating and aggravating evidence likely to be presented. [Citation.] In deciding where to strike the balance in a particular case, trial courts have considerable discretion.” (Case, at p. 29.)

Voir dire is permitted to allow counsel to consider whether a particular panelist will be fair and open to their presentation

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or resistant to it. The process is not designed to permit a specific preview of the particular evidence to be presented or to slant the panelist’s views in a particular direction. Counsel did not render ineffective assistance by resorting to examples that obviously would not be part of the defense case, in order to illustrate her greater point. (See generally People v. Horton (1995) 11 Cal.4th 1068, 1124 [counsel’s statements during voir dire was not prejudicially ineffective].)

b. Failure to pursue lingering doubt and related claims

Defendant faults defense counsel for failing to pursue a lingering doubt defense during the penalty retrial. He also suggests that counsel should have pursued other “well supported themes” as outlined in Petermann’s habeas petition raising ineffective assistance claims regarding the first trial. He urges counsel should have sought to bolster the claim that he “had not participated or encouraged the charged assault,” or “explain why he had not interceded or earlier fled,” and emphasized that Hardy was the “dominating force in the offenses.” He also asserts trial counsel should have challenged his confession as either involuntary or unreliable.

These generalized assertions fail. Reasonable counsel might well have determined that further pursuit of these avenues would not only have been unsuccessful but would risk being counterproductive. On this record, defendant cannot demonstrate ineffective assistance on direct appeal. (See People v. Lucero (2000) 23 Cal.4th 692, 735.) Defendant’s premise that he “had not participated [in] or encouraged” the crimes here were undermined by the significant evidence of his active participation, including his own admissions. Defendant himself ultimately made statements conceding that, when the victim

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attempted to flee, he helped pull her down, strip off her clothes, and throw her over a fence. He acknowledged that he raped the victim while a companion held her down, repeatedly kicked her in the head and face with steel-toed boots, left her nude body by the side of the freeway, and subsequently disposed of evidence. Based on this record, counsel could have reasonably concluded that these facts did not paint the portrait of a passive bystander who was simply going along with crimes committed by others and that arguing to the contrary might increase juror skepticism and undermine the defense plea for mitigation. Defendant faults counsel for not arguing to the jury that his police statements were involuntary or unreliable. However, those statements were consistent not only with the physical evidence but with his own statements and letters to multiple friends admitting his involvement. Thus, although “a defendant may argue lingering doubt at the penalty phase of a capital trial as a mitigating consideration” (People v. Jones (2003) 30 Cal.4th 1084, 1125), “defense counsel may have decided that it would be better to say as little as possible about the murder[] and to focus instead on” other mitigating evidence, such as defendant’s upbringing and troubled home life. (Lucero, at p. 735; see People v. Riel (2000) 22 Cal.4th 1153, 1209–1210.) On this record, such apparent tactical choices do not reflect ineffective assistance of counsel.

c. Failure to object to prosecutorial misconduct Defendant contends his counsel should have objected to part of the prosecutor’s closing that appeared to suggest defendant had used the wooden stake during Sigler’s assault. He cites to the following portion of the argument: “The murder was committed during the course of a rape with a wooden stake. Ultimately, he used that wooden stake to satisfy himself because

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he couldn’t come to an orgasm. He said that stake went in real deep, six to seven inches. The sliver was found four inches inside her vagina. He shoved that stake into the victim’s vagina four to five times, that’s what he said, that’s what he said on tape, that it was shoved in her four to five times.” (Emphasis added.) Defendant argues there was no evidence he was the one who used the stake as described. As a result, he asserts the prosecutor argued facts not in the evidence and defense counsel was ineffective for failing to object.

Initially, the record seems less straightforward than defendant suggests. Just before the highlighted passage, the prosecutor described how defendant had raped the victim despite her pleas to stop. In addressing defendant’s police statement that he had “perform[ed] sexual intercourse” with the victim, the prosecutor argued: “Who was he performing for? Jamelle [Armstrong] and Warren [Hardy]? He was performing, performing that was the most brutal heinous type of rape a woman could ever suffer. Just think about it. Imagine it. And because she was resisting and he couldn’t come to an orgasm, what do you think he did? He got mad. He got angry because he couldn’t finish. Warren Hardy came up with that stake. I’ll show her. I’ll get off. And he took that stake and he finished it didn’t he? He started stomping on her with his boots and he took that stake and he beat her in the face and how do we know that? Because what does he say, he says that Warren Hardy sat up on top of her and he could hear Warren saying ‘suck my dick’ and what does he tell Warren? He tells Warren ‘that’s disgusting. You could get AIDS’ that’s how we know she was beaten with the stake, stomped on, her face was all bloody and what is he thinking about? . . . He was thinking that his buddy

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can get AIDS because her face is all bloody, that’s what he was thinking about.” (Emphasis added.)

It appears in context that, while describing the actions of all participants, the prosecutor confusingly used the pronoun “he” to refer at times to both defendant and Hardy. 12 The jury could have understood the prosecutor to urge that it was Hardy who “came up with that stake” to “show her” and that defendant admitted that Hardy beat the victim with the stake severely enough that defendant was concerned Hardy could get AIDS from the blood on her face. But that is certainly not the only way in which the argument could have been understood.

Defendant is correct that, during his police interview, which was played for the jury, he attributed use of the stake to Hardy and Armstrong and stated that it was his cohorts who had used the stake to beat the victim and sexually assault her. There was no other evidence presented on that point. In the context of ambiguous evidence, however, making an objection during an opponent’s argument carries its own tactical risks, including unintended emphasis of a point. “ ‘ “[T]he decision facing counsel in the midst of trial over whether to object to comments made by the prosecutor in closing argument is a highly tactical one . . .” [citation], and “a mere failure to object to evidence or argument seldom establishes counsel’s incompetence.” ’ ” (People v. Aguirre (2025) 18 Cal.5th 629, 707.) Even if the prosecutor’s argument could have been understood

12 While defendant was tried separately from Hardy and Armstrong, he was charged with rape in concert with the others and the actions of all three were discussed at length during the presentation of evidence at the penalty retrial. Defendant’s awareness of the acts of the others was relevant to his own state of mind and his degree of participation in the crimes.

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in the manner suggested by defendant, his counsel could well have made the judgment that, by making an unsupported assertion that defendant personally used the stake, the prosecutor undermined her own credibility, and an objection would only have given the prosecutor an opportunity to clarify ambiguity and further focus the jury’s attention on that aspect of the assault, of which the defendant was admittedly aware. The prosecutor also reminded the jury of its duty to “determine the facts from the evidence received during the trial,” and the court properly instructed on this point, reminding the jury that “[s]tatements made by the attorneys during trial are not evidence.” (See CALJIC No. 0.50 [Pre-trial Admonition]; see also CALJIC No. 8.84.1 [Duty of Jury — Penalty Proceeding].) Ultimately, “ ‘[u]nless a defendant establishes the contrary, we shall presume that “counsel’s performance fell within the wide range of professional competence and that counsel’s actions and inactions can be explained as a matter of sound trial strategy.” ’ ” (People v. Centeno (2014) 60 Cal.4th 659, 674–675.)

d. Argument regarding defense witnesses’ changed opinions

As noted, defendant’s three character witnesses maintained that the details of defendant’s conduct did not change their opinions of defendant and that they still loved him. (See, ante, at pp. 24–27.) Defendant suggests his counsel rendered ineffective assistance by failing to specifically tell the jury during closing argument that any change of opinion by the defense witnesses regarding defendant’s character should not be considered an aggravating circumstance. Defense counsel did urge that defendant’s witnesses had never seen that side of him before or after the offenses, the offenses were completely uncharacteristic, and that they still supported him. Bland did

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agree that the crimes were “pretty horrendous” and that he might not invite defendant to dinner in the future. In light of the witnesses’ unchanged opinions of defendant, defense counsel could have rationally concluded an argument addressing any moderate modification in their views would have confused the jury and undermined a core theme of the defense that, but for this “one horrible day,” defendant did not have a violent character. The prosecution did not argue that any minor change in the witness’ views constituted aggravation but only that their testimony was not reliable. The jury was instructed as to the proper consideration of aggravating and mitigating evidence. (See CALJIC 8.88.) No ineffective assistance of counsel appears on the appellate record in this regard. (Cf. People v. Gamache (2010) 48 Cal.4th 347, 391–394.)

4. Cumulative Error Defendant contends the cumulative effect of errors at the penalty retrial requires reversal of the judgment. We have found no errors. “Accordingly, there are no errors or prejudice to accumulate, and defendant’s cumulative error claim necessarily fails.” (Dunn, supra, 18 Cal.5th at p. 198.)

B. Supplemental Issues Relating to Prior Guilt Phase Trial In supplemental briefing, defendant seeks to reopen challenges to verdicts in his guilt phase trial. His interrelated arguments focus on a case decided, and a statutory change made, after that adjudication and its affirmance on appeal became final. He urges that the special circumstance findings were inadequate, relying on People v. Banks (2015) 61 Cal.4th 788 (Banks). He also argues that the underlying guilt verdicts themselves were rendered deficient because the Legislature

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later narrowed the scope of felony-murder liability with the passage of Senate Bill No. 1437 (2017–2018 Reg. Sess.) (Senate Bill 1437). The following timeline is relevant to his assertions.

In 1990, voters enacted Proposition 115 (Primary Elec.

(June 5, 1990) Prop. 115) (Prop. 115 or the Initiative), which “revised the scope of capital liability for aiding and abetting felony murders by looking to federal constitutional law.” (Banks, supra, 61 Cal.4th at p. 798.) The Initiative addressed, inter alia, the elements required for a true finding on special circumstance felony murder. As amended by the Initiative, section 190.2 requires proof that, during the commission of an underlying felony, the defendant was: the actual killer; an aider and abettor who acted with the intent to kill; or an aider and abettor who was both a major participant and acted with reckless indifference to human life. (See § 190.2, subds. (b)–(d).)

Penny Sigler was murdered in 1998. The first guilt and penalty phase verdicts were returned in 2003. Those guilt verdicts and special circumstances findings were affirmed on appeal in 2012, but the penalty decision was reversed for jury selection error.13 (See Pearson I, supra, 53 Cal.4th at pp. 327–

13 In Pearson I, we concluded a verdict that the Sigler killing was murder in the first degree could not be based on a finding that the killing occurred during the infliction of torture. (See Pearson I, supra, 53 Cal.4th at pp. 319–320.) We upheld defendant’s underlying torture conviction. But the degree of murder involved how the torture conviction impacted the related murder verdict. Under section 189, subdivision (a), murder committed in the perpetration of listed predicate felonies constitutes murder in the first degree. In 1998, at the time of the offenses, however, while the felonies of robbery, kidnapping, and rape were listed as predicate felonies, the crime of torture was not. Torture was only added to the predicate

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333.) The matter was remanded for retrial as to penalty and resentencing as required by the court’s other holdings related to determinate sentencing issues. Defendant’s original habeas corpus challenge to his first conviction was dismissed in 2017. (See ante, p. 10, fn. 8.)

Following retrial, the second penalty verdict was returned in 2013 and is the subject of this appeal. Banks, which considered the scope of the “major participant” doctrine in the

felony list in 1999. (Stats. 1999, ch. 694, § 1, p. 5054.) Thus, in 2003, the court erred when it instructed that a torture conviction could support a first degree felony-murder verdict. While the jury properly found defendant guilty of torture, that verdict would not support a finding of first degree murder under a felony-murder theory because the crime of torture was not included in the predicate felony list when the Sigler murder was committed. Nevertheless the first degree murder conviction was upheld as amply supported, “because the jury necessarily convicted defendant of first degree murder on other, proper felony-murder theories” based on its true findings regarding the special circumstance allegations that “defendant murdered Sigler while engaged in the commission of robbery, kidnapping, rape, and foreign object rape. Because a killing in commission of any of these offenses constitutes first degree murder under section 189, it follows the jury must unanimously have found defendant guilty of first degree murder on the valid theory the killing occurred during the commission of these felonies.” (Pearson I, at p. 320.) Pearson I did go on to reverse the torture- murder special circumstance finding because of an instructional error. (See id. at pp. 322–324.) Also, in its disposition, the court reversed the findings that defendant used the stake as a deadly weapon as well as some of the determinate sentencing judgments for errors not at issue here. (See Pearson I, at pp. 318–319, 333–334.) The balance of the guilt verdicts and special circumstance findings were affirmed, including the underlying torture verdict, as explained above.

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special circumstance context, was decided in 2015, two years after the second penalty verdict was rendered.

In 2018, Senate Bill 1437 amended Penal Code section 189 and addressed the underlying elements required to prove substantive guilt for first degree murder based on a felony- murder theory, as distinguished from the proof required to establish a special circumstance allegation. Under the Senate Bill 1437 amendments, in the case of an aider and abettor who is not the actual killer, the requirements for proof of the crime of felony murder now mirror the special circumstance findings that have been required by the Initiative since 1990. (See People v. Strong (2022) 13 Cal.5th 698, 707–708; § 189, subd. (e).)

This timeline reflects that, when defendant was initially tried in 2003, a guilt conviction for an accomplice based on a felony-murder theory was permitted if the jury concluded the defendant aided and abetted a listed predicate felony, but it did not require proof that he was a major participant in that felony and acted with reckless indifference. However, at the time of his 2003 trial, a true finding on a felony-murder special- circumstance allegation did require factual findings of major participation and reckless indifference, and the jury was so instructed.

1. Sufficiency of the Evidence: Felony-Murder Special Circumstance

In the first of his supplemental arguments, defendant proposes to challenge the affirmed special circumstance findings in Pearson I that he engaged in, or acted as an accomplice in the commission of, the crimes of robbery, rape, sexual penetration, and kidnapping. He urges that he was not the actual killer of Penny Sigler, did not act as a major participant in those crimes,

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and did not act with reckless indifference to human life. These factual determinations were resolved in his 2012 appeal. At the time of his 2003 trial, Penal Code Section 190.2, subdivision (d), relating to felony-murder special-circumstance allegations, stated, as it states today: “[E]very person, not the actual killer, who, with reckless indifference to human life and as a major participant, aids, abets, counsels, commands, induces, solicits, requests, or assists in the commission of [an enumerated felony which results in death], and who is found guilty of murder in the first degree therefor, shall be punished by death or imprisonment in the state prison for life without the possibility of parole.” In the guilt phase of the 2003 trial, the jury first had to decide whether defendant was guilty of the underlying crime of murder and in what degree. If it convicted defendant of first degree murder, it then moved to a consideration of whether the accompanying felony-murder special-circumstance allegations were proven true. During the guilt phase, his 2003 jury was properly instructed14 on the requirements of section 190.2 and found the felony-murder special-circumstance allegations proven true beyond a reasonable doubt. (See Pearson I, supra, 53 Cal.4th at p. 324.) It specifically noted in its verdict form a finding that defendant was an accomplice who either acted with an intent to kill or was a major participant and acted with reckless indifference. (Id. at pp. 322–323.) At the ensuing penalty phase, the jury returned a death verdict. We first discuss defendant’s challenge to the special circumstance

14 Before oral argument, and acting on our own motion, we took judicial notice of the jury instructions given at the 2003 trial. (See Evid. Code, § 452, subd. (d).)

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findings then turn to defendant’s challenge to the substantive first degree murder conviction.

Banks considered the scope of the “major participant”

requirement for proof of a felony murder special circumstance. Banks’s codefendant Matthews was the getaway driver in a planned robbery during which Banks fatally shot a guard. Based on the trial evidence, it appeared that, when Banks shot the guard, Matthews was sitting in the getaway car three blocks away from the robbery site. (See Banks, supra, 61 Cal.4th at p. 805.) Both Matthews and Banks were charged with special circumstances robbery murder. The People did not seek the death penalty for Matthews, but we granted review of the special circumstance finding that lead to his life without parole sentence. (Id. at p. 797.) Matthews did not dispute that he was guilty of the underlying first degree murder on a felony-murder theory. His appeal turned on whether there was sufficient evidence to support the additional and required special circumstance finding that he, as a nonkiller aider and abettor, acted as a major participant with the required state of mind. Interpreting the same formulation of the special circumstance provision at issue here, Banks held that the evidence was insufficient to establish the “major participant” or “reckless indifference” elements. (See id. at pp. 804–811.) Banks traced the history of Proposition 115’s enactment and the amendments it made to the Penal Code. It explained that, as to the felony- murder special circumstance, the Initiative modified section 190.2 to specifically conform with United States Supreme Court jurisprudence relating to capital punishment in felony-murder cases. (See Banks, at p. 798, citing Tison v. Arizona (1987) 481 U.S. 137.)

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The Banks court explained that Tison “described the range of felony-murder participants as a spectrum.” (Banks, supra, 61 Cal.4th at p. 800.) At one end of that spectrum were minor actors, who were not at the scene of the underlying crimes, and “ ‘who neither intended to kill nor [were] found to have had any culpable mental state.’ ” (Ibid.) At the other extreme were actual killers and those who intended to kill. The high court recognized a middle point on the spectrum for those who did not fall into either of those “ ‘neat categories.’ ” (Ibid.) Those middle ground cases included accomplices who were major participants in the underlying felonies and who acted with reckless indifference to human life. This formulation from Tison was codified by the California electorate in section 190.2, subdivision (d). The Banks court undertook to “gain a deeper understanding of the governing test and offer further guidance” as to the term “ ‘major participant.’ ” (Banks, at p. 801.)

Banks noted that it is constitutionally permissible for the states to “ ‘make aiders and abettors equally responsible, as a matter of law, with principals, or . . . enact felony-murder statutes” providing that a nonkilling accomplice may be found guilty of the underlying crime of first degree murder. (Banks, supra, 61 Cal.4th at p. 801, citing Lockett v. Ohio (1978) 438 U.S. 586, 602.) Banks emphasized, however, that “[w]hen it comes time to determine a proportionate punishment, the Constitution requires more.” (Banks, at p. 801.) Since 1990, under section 190.2, subdivision (d), to support a felony-murder special- circumstance finding for a nonkiller who is a major participant, the jury must first conclude that a major participant acted with reckless indifference to human life. (Banks, at pp. 801–802.) When considering the truth of that special circumstance allegation, the sentencing body must examine the defendant’s

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personal responsibility in the crimes and his individual responsibility for the loss of life, not just his vicarious liability for the underlying felony. (Ibid.) This individualized consideration is required in determining first whether a special circumstance allegation has been proven true and extends to a consideration of the appropriate punishment. The need for this additional level of inquiry is reflected in section 190.2, subdivisions (c) and (d), which cover the application of a felony murder special circumstance to nonkillers.

In order to receive a special circumstance sentence, a defendant’s actions must be greater than those of “an ordinary aider and abettor to an ordinary felony murder.” (Banks, supra, 61 Cal.4th at p. 802.) A jury evaluating that question must consider the totality of the proven circumstances. (Ibid.) Banks distinguished between a “garden-variety armed robbery, where death might be possible but not probable,” and a defendant’s substantial involvement in a “course of conduct that could be found to entail a likelihood of death.” (Ibid.) The court rejected the People’s position that mere participation in planning the underlying felony was alone sufficient to make a defendant a major participant. It held that such an expansive understanding would sweep too broadly. (Id. at p. 803.)

In finding the Banks evidence insufficient, the court noted that Matthews was not at the crime scene, did not see or hear the shooting, had no immediate role in instigating it, and could not have prevented it. There was no evidence that the armed robbery plan included killing anyone. As a result, the evidence showed Matthews was no more than a getaway driver. He was absent from the scene when the shooting took place and unaware of the unfolding events that led to the killing of the guard. As a result, under existing United States Supreme Court

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precedent, as reflected in section 190.2, subdivision (d), he was ineligible for a special-circumstance sentence. (See Banks, supra, 61 Cal.4th at pp. 804–807.) Banks also restated the established rule that a special-circumstance finding requires a showing that the defendant was “ ‘ “subjectively aware that his or her participation in the felony involved a grave risk of death.” ’ ” (Id. at p. 807, italics omitted, quoting People v. Mil (2012) 54 Cal.4th 400, 417 & People v. Estrada (1995) 11 Cal.4th 568, 577.) That is to say that under section 190.2, subdivision (d), a special circumstance finding for a nonkiller who does not intend to kill also requires proof that the defendant was a major participant and acted with reckless indifference to human life. Banks concluded insufficient evidence had been presented that Matthews acted with this requisite mental state. (Banks, at pp. 807–811.)

We later articulated in Clark various factors to consider in determining whether a defendant acted with reckless indifference to life. These considerations include whether the defendant knew a weapon or weapons would be used, whether he was present at the scene and had opportunities to intervene or aid the victim, and whether he knew his companions were likely to kill or use an enhanced degree of violence. They also include the duration of the crime and any efforts defendant made to minimize the risk of violence. (See Clark, supra, 63 Cal.4th at pp. 618–623; see also People v. Emanuel (2025) 17 Cal.5th 867, 885–896 (Emanuel).)

Initially, the Attorney General contends defendant may not raise this challenge here because Pearson I affirmed the guilt judgment of the first trial and only remanded for a penalty phase retrial. Although he conceded a similar finality issue in Wilson, he argues here that the guilt judgment was final and

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any claim regarding errors at the guilt phase of the first trial exceeded the scope of our remand order and is not properly before us in an appeal from the penalty retrial. (See Wilson, supra, 14 Cal.5th at pp. 870–871; see also People v. Lopez (2025) 17 Cal.5th 388, 397–398.) We need not address this argument as defendant’s claim fails on the merits.

Ultimately, consideration of the factors noted in Banks and Clark does not aid defendant. Defendant’s participation in the assaults, robbery, kidnapping, and murder of Sigler are markedly different from that of Matthews, the absentee getaway driver in Banks. There was ample proof that defendant was a major participant in the designated felonies leading to Sigler’s death and also that he acted with reckless indifference. He was present, “aware of and willingly involved in the violent manner in which the particular offense [was] committed, demonstrating reckless indifference to the significant risk of death his . . . actions create[d].” (Banks, supra, 61 Cal.4th at p. 801.) In particular, and by his own admission, he personally knocked Sigler to the ground, stripped her, threw her over a fence, and raped her. Consistent with the Pearson I disposition, we assume he did not personally wield the stake, but he did watch as his cohorts beat her then sexually assaulted her with it and beat her so severely that one of her ears was nearly severed. Far from making “some effort to minimize the risk of violence” (Clark, supra, 63 Cal.4th at p. 622) or “attempt[ing] to act as a restraining influence” (Emanuel, supra, 17 Cal.5th at p. 891), defendant personally kicked the victim in the head repeatedly with steel-toed boots, contributing to her fatal traumatic head injuries. After the attack, he and his associates stole her belongings and left her nude, unconscious, and with 25 broken bones, on an embankment in December in the middle of

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the night. They intentionally disposed of evidence linking them to the crime. Defendant’s own actions manifestly reflect major participation in the crimes and a reckless indifference to life.15 2. Senate Bill 1437: Changes to the Substantive Law of Felony-Murder Liability In a related supplemental argument, defendant also contends the original underlying finding of guilt for the crime of first degree murder must itself be reversed because the guilt phase jury at his first trial was instructed on alternative theories of first degree murder, one of which was significantly altered by subsequent legislation. He seeks relief not only from the second penalty verdict, which is at issue here, but from his initial guilt phase convictions and special circumstance findings as well. This argument invokes the application of Senate

15 In a one-sentence alternative argument, defendant asserts that even if substantial evidence supported the felony-murder special-circumstance findings, the failure to instruct the jury on the Banks factors constituted reversible error. This claim is not properly before us. (See Cal. Rules of Court, rules 8.204(a)(1)(B) [briefs must “[s]tate each point under a separate heading or subheading summarizing the point, and support each point by argument and, if possible, by citation of authority”], 8.630(a) [briefs in automatic appeals must comply with rule 8.204].) Even if it were, the claim fails. “Banks and Clark did not expressly require that juries be instructed on those clarifications. Optional language describing the Banks/Clark factors was added to the CALCRIM instructions; and the bench notes expressly direct the trial court to determine whether the Banks and Clark factors ‘need be given.’ (See CALCRIM No. 703.)” (People v. Harris (2021) 60 Cal.App.5th 939, 955, fn. 12.) In any case, defendant could not have been prejudiced in light of the evidence described and the jury’s other verdicts discussed in the next section.

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Bill 1437, which modified the substantive felony-murder doctrine. Again, his arguments fail.

The original jury was told that first degree murder could be based on proof of conventional premeditated murder. Alternatively, it was instructed on the theories of felony murder, conspiracy to commit a felony resulting in murder, and murder liability based on the natural and probable consequences doctrine. “Under the natural and probable consequences doctrine, ‘ “A person who knowingly aids and abets criminal conduct is guilty of not only the intended crime [target offense] but also of any other crime the perpetrator actually commits [nontarget offense] that is a natural and probable consequence of the intended crime.” ’ ” (People v. Hin (2025) 17 Cal.5th 401, 441 (Hin).) The natural and probable consequences doctrine had provided that one who aids and abets a designated felony must have the specific intent to aid in the commission of that target offense but was not required to harbor any additional express or implied malice if the commission of the felony resulted in an unlawful killing. (Ibid.) Instead, the mens rea of malice was “imputed” to the aider and abettor for any killing that was a natural and probable consequence of the designated target felony he aided and abetted or conspired to commit. (Ibid.)

“In 2018, the Legislature enacted Senate Bill 1437, which eliminated the natural and probable consequences theory of murder. (Stats. 2018, ch. 1015, § 1, subd. (f).) Senate Bill 1437 amended Penal Code section 188 to provide that ‘[e]xcept as stated in subdivision (e) of Section 189 [governing felony murder], in order to be convicted of [the crime of] murder, a principal in a crime shall act with malice aforethought. Malice shall not be imputed to a person based solely on his or her participation in a crime.’ (§ 188, subd. (a)(3), added by

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Stats. 2018, ch. 1015, § 2.) Senate Bill 1437 also narrowed the scope of the felony-murder [rule by] . . . providing that a defendant who was neither the actual killer nor acted with the intent to kill can be liable for murder only if he was a ‘major participant in the underlying felony and acted with reckless indifference to human life.’ (§ 189, subd. (e)(3), added by Stats. 2018, ch. 1015, § 3.)” (Hin, supra, 17 Cal.5th at p. 441.) “Senate Bill 1437 also created a procedural mechanism for those convicted of murder under prior law to seek retroactive relief,” allowing a defendant to petition for resentencing under the new law. (Wilson, supra, 14 Cal.5th at p. 869; see § 1172.6.) The Legislature later clarified that a defendant “whose conviction is not final may challenge on direct appeal the validity of that conviction based on the changes made to Sections 188 and 189 by Senate Bill 1437.” (§ 1172.6, subd. (g); see Wilson, at p. 869.)

If Senate Bill 1437 were applied retroactively to defendant’s 2003 trial, it would mean the natural and probable consequences instructions were improperly given, raising the possibility of “alternative-theory error.” (People v. Aledamat (2019) 8 Cal.5th 1, 9 (Aledamat); see Wilson, supra, 14 Cal.5th at p. 871.) The People initially argue defendant’s instructional error claim is not cognizable on this appeal because the guilt phase judgment became final after our decision in Pearson I reversed only the death judgment and remanded for a penalty retrial. Again, we need not address this claim because any possible instructional error could not have prejudiced defendant.

Alternative-theory error occurs when a court instructs on different theories under which a defendant may be convicted of an offense, but some of those theories are legally invalid. (See Wilson, supra, 14 Cal.5th at p. 871.) “[N]o higher standard of

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review applies to alternative-theory error than applies to other misdescriptions of the elements. The same beyond a reasonable doubt standard applies to all such misdescriptions, including alternative-theory error.” (Aledamat, supra, 8 Cal.5th at p. 9.) “[A] reviewing court may hold the error harmless where it would be impossible, based on the evidence, for a jury to make the findings reflected in its verdict without also making the findings that would support a valid theory of liability.” (In re Lopez (2023) 14 Cal.5th 562, 568.) “[T]he reviewing court has an obligation ‘to rigorously review the evidence to determine whether any rational juror who found the defendant guilty based on an invalid theory, and made the factual findings reflected in the jury’s verdict, would necessarily have found the defendant guilty based on a valid theory as well.’ ” (Wilson, at p. 873, quoting In re Lopez, at p. 583.)

“Applying this standard, we conclude no reasonable jury that made the findings reflected in the verdicts from defendant’s initial trial could have failed to find the facts necessary to support liability under a valid theory of murder.” (Wilson, supra, 14 Cal.5th at p. 873.) “As amended by Senate Bill 1437, a defendant is guilty of first degree felony murder if he is the ‘actual killer’ (§ 189, subd. (e)(1)); if, ‘with the intent to kill,’ he aids or abets ‘the actual killer in the commission of murder in the first degree’ (id., subd. (e)(2)); or, if he was a ‘major participant in the underlying felony’ and ‘acted with reckless indifference to human life’ (id., subd. (e)(3)).” (Id. at p. 873.) As the People observe, the jury’s verdict form convicting defendant of murder expressly stated it found he was an “aider and abettor and had the intent to kill; or was a major participant and acted with reckless indifference to human life.” The jury also found true special-circumstance allegations that defendant committed

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murder during robbery, kidnapping, kidnapping for rape, rape, and rape by a foreign object.16 To find those allegations true, the jury had to conclude, if defendant was not the actual killer, that he either aided and abetted murder with intent to kill, or was a major participant in one of the underlying crimes and acted with reckless indifference to life. This jury also returned a true finding on the One Strike circumstance appended to the sexual assault counts that “defendant kidnapped the victim of the present offense and the movement of the victim substantially increased the risk of harm to the victim over and above that level of risk necessarily inherent” in the underlying offenses. (§ 667.61, subd. (d)(2).)

Further, as noted in Pearson I, although the court instructed the jury on the natural and probable consequences doctrine, “torture was not among the charged offenses listed in this instruction.” (Pearson I, supra, 53 Cal.4th at pp. 320–321.) Similarly, the instruction regarding the One Strike allegation appended to the sex offenses required the jury find defendant “inflicted torture on the victim as defined elsewhere in these instructions.” As a result, “[t]he combination of instructions on torture and aiding and abetting thus ensured defendant could not be found guilty of torture as an aider and abettor without proof he knew and shared the actual torturer’s specific intent to inflict extreme pain and suffering on the victim.” (Id. at p. 321.)

Under these circumstances, “it would have been impossible for the jury to make the findings reflected in its

16 As noted ante, the jury also found true the torture-murder special circumstance, but we reversed this finding for instructional error on defendant’s prior appeal. (See Pearson I, supra, 53 Cal.4th at pp. 322–324.)

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verdicts without concluding, at the very least, that defendant was a major participant in the felony kidnapping who acted with reckless indifference to human life.” (Wilson, supra, 14 Cal.5th at p. 875.) The findings that defendant kidnapped Sigler, increasing the risk of harm inherent in the underlying crimes, and that he tortured her with specific intent to inflict extreme pain and suffering, reveal that the jury necessarily rejected the defense theory that he was merely a bystander who was too afraid to intervene. “Assuming defendant’s section 1172.6, subdivision (g) claim is properly before us in this appeal from a penalty retrial, any retroactive error from Senate Bill 1437’s ameliorative changes is harmless beyond a reasonable doubt.” (Id. at p. 875.)

III. DISPOSITION

The judgment of death is affirmed.

CORRIGAN, J.

We Concur: GUERRERO, C. J. LIU, J. KRUGER, J. GROBAN, J. EVANS, J. JACKSON, J.*

*

Presiding Justice of the Court of Appeal, First Appellate District, Division Five, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.

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

Name of Opinion People v. Pearson

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Procedural Posture (see XX below) Original Appeal XX Original Proceeding Review Granted (published) Review Granted (unpublished) Rehearing Granted

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Opinion No. S212159 Date Filed: August 17, 2026

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Court: Superior County: Los Angeles Judge: Tomson T. Ong

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Counsel:

Conrad Petermann and Eric S. Multhaup, under appointments by the Supreme Court, for Defendant and Appellant.

Kamala D. Harris and Rob Bonta, Attorneys General, Gerald A. Engler, Lance E. Winters and Charles C. Ragland, Chief Assistant Attorneys General, James William Bilderback II, Assistant Attorney General, Dana Muhammad Ali, Joseph P. Lee, Yun K. Lee, Christopher G. Sanchez and Jonathan L. Kline, Deputy Attorneys General, for Plaintiff and Respondent.

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

Eric S. Multhaup Attorney at Law 35 Miller Avenue, #229 Mill Valley, CA 94941 (415) 381-9311

Jonathan L. Kline Deputy Attorney General 300 South Spring Street, Suite 1702 Los Angeles, CA 90013 (213) 269-6029