Court of Appeal, Second Appellate District Court of Appeal, Second Appellate District

Eva McClintock Eva McClintock

Electronically RECEIVED on 7/7/2025 at 9:48:29 AM Electronically FILED on 7/7/2025 by Sherry Claborn, Deputy Clerk

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT, DIVISION SIX

THE PEOPLE, ] Case No. B329873

]
Plaintiff and Respondent, ] Superior Court No.
] 22CR003712
v. ] (Monterey County)
]
PAUL RUBEN FLORES, ]
]
Defendant and Appellant. ]
]

APPELLANT’S REPLY BRIEF

Appeal from the Superior Court of Monterey County

The Honorable Jennifer O’Keefe, Judge Presiding

SOLOMON WOLLACK (State Bar No. 170003)

Attorney at Law
P.O. Box 23933
Pleasant Hill, CA 94523
Telephone: (925) 671-2501
E-mail: sol@wollack.com

Attorney for Appellant

Paul Ruben Flores
Under Appointment by the Court of Appeal
(Sixth District Appellate Program –
Independent Case)
 TABLE OF CONTENTS

TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . - 6 -

INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 13 -
ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 14 -
I. By repeatedly declining to remove a juror who
had lost her ability to remain neutral and abide
by her oath, the trial court violated appellant’s
right to the unanimous verdict of 12 impartial
jurors. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 14 -

A. If a juror’s bias appears on the record as a

demonstrable reality, the trial court commits
reversible error by denying requests to
discharge that juror. . . . . . . . . . . . . . . . . . . . . . . . - 15 -

B. By the time of appellant’s last three requests

to discharge Juror No. 273, the juror’s
inability to remain fair and impartial, and to
abide by her oath, appeared in the record as a
demonstrable reality . . . . . . . . . . . . . . . . . . . . . . . - 16 -

1. Juror No. 273’s statements and actions

throughout trial manifestly refuted her
claims that she could remain fair and
impartial . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 17 -

2. The totality of Juror No. 273’s conduct

revealed that she had lost the ability to be
fair and impartial, or even to follow the
trial court’s orders . . . . . . . . . . . . . . . . . . . . . . - 21 -
II. Because there was no evidence that appellant
sexually assaulted Smart, the trial court abused
its discretion and violated due process by
admitting two uncharged rape incidents . . . . . . . . . - 27 -

A. A bare allegation of rape or attempted rape,

with no holding order and no judicial finding
on the allegation’s merit, is insufficient to
justify the admission of uncharged offense
evidence under Evidence Code section 1108 . . . . - 27 -

-2-
 B. The prosecutor made no threshold showing
that appellant committed a sexual offense
against Smart . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 31 -

C. The trial court further abused its discretion

by admitting the uncharged offense evidence
for non-character purposes under Evidence
Code section 1101, subdivision (b) . . . . . . . . . . . . - 33 -
D. This Court must reverse appellant’s
conviction, or reduce it to second degree
murder, due to the trial court’s erroneous
admission of highly inflammatory uncharged
offense evidence. . . . . . . . . . . . . . . . . . . . . . . . . . . - 34 -

III. The trial court committed reversible error by

allowing Trevor Boelter to opine that Smart
looked like she had been “roofied” and to repeat
hearsay he had read about in a newspaper article . - 41 -

A. Appellant made a timely objection that

Boelter’s opinion testimony lacked adequate
foundation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 41 -

B. The prosecution established no foundation to

support Boelter’s opinion about Smart’s
possible roofie usage . . . . . . . . . . . . . . . . . . . . . . . - 45 -

C. Boelter’s testimony constituted inadmissible

hearsay insofar as he related what he had
read in the school newspaper . . . . . . . . . . . . . . . . - 46 -

D. Boelter’s erroneously admitted testimony was

prejudicial because it helped the prosecution
prove a drugging and raping theory not
otherwise shown by the evidence . . . . . . . . . . . . . - 47 -
IV. The prosecutor committed reversible misconduct
by misusing the ball gag photograph for
character purposes . . . . . . . . . . . . . . . . . . . . . . . . . . . - 49 -

A. The prosecutor committed misconduct by

using Exhibit 458 for character purposes and
to inflame the jurors’ passions . . . . . . . . . . . . . . . - 50 -
B. The prosecutor’s misconduct constituted
reversible error . . . . . . . . . . . . . . . . . . . . . . . . . . . - 52 -

-3-
V. Because there was no substantial evidence that
appellant committed any form of first degree
murder, this Court must reduce his conviction to
second degree murder . . . . . . . . . . . . . . . . . . . . . . . . - 53 -

VI. The trial court prejudicially misstated the mens

rea element of attempted rape of an intoxicated
person, precluding jurors from considering
whether appellant actually believed Smart was
sober enough to consent . . . . . . . . . . . . . . . . . . . . . . . - 56 -
A. The trial court had a sua sponte duty to
properly instruct on the elements of
attempted rape and not to affirmatively
misinstruct on voluntary intoxication . . . . . . . . . - 57 -

1. Because CALCRIM No. 460 misstated the

elements of attempted rape of an
intoxicated person, appellant may
challenge the instruction for the first time
on appeal. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 57 -
2. CALCRIM No. 625 may be challenged on
appeal because it affirmatively misstated
the law on the proper use of voluntary
intoxication evidence . . . . . . . . . . . . . . . . . . . . - 59 -

B. The reasonable likelihood standard does not

apply for instructions which affirmatively
misstate the law . . . . . . . . . . . . . . . . . . . . . . . . . . - 61 -

C. Even if the reasonable likelihood standard

applies, appellant has demonstrated
instructional error under that standard . . . . . . . - 62 -

D. Voluntary intoxication evidence is admissible

to show that appellant lacked the specific
intent required for attempted rape . . . . . . . . . . . - 66 -
E. The instructional errors require reduction of
appellant’s conviction from first degree
murder to second . . . . . . . . . . . . . . . . . . . . . . . . . . - 68 -
VII. The errors discussed in Arguments II, III, IV,
and VI caused appellant cumulative prejudice
and require reversal of his conviction or
reduction to second degree murder . . . . . . . . . . . . . . - 71 -

-4-
CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 72 -
WORD COUNT CERTIFICATE . . . . . . . . . . . . . . . . . . . . . . . - 73 -

PROOF OF SERVICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 74 -

-5-
 TABLE OF AUTHORITIES
Cases

Boyde v. California (1999)

494 U.S. 370 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
Chapman v. California (1967)
386 U.S. 18 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34, 69

Cummiskey v. Superior Court (1992)

3 Cal.4th 1018 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
Estelle v. McGuire (1991)
502 U.S. 62 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33, 61

Gray v. Mississippi (1987)

481 U.S. 648 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

Griffin v. California (1965)

380 U.S. 609 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
Ho v. Carey (9th Cir. 2003)
332 F.3d 587 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
In re Hamilton (1999)
20 Cal.4th 273 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

In re Martin (1987)
44 Cal.3d 1. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39

Neder v. United States (1999)

527 U.S. 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69, 71

Ocampo v. Vail (9th Cir. 2011)

649 F.3d 1098 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
Pajaro Valley Water Management
Agency v. McGrath (2005)
128 Cal.App.4th 1093 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46

People v. Albarran (2007)

149 Cal.App.4th 214 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28, 30
People v. Allen and Johnson (2011)
53 Cal.4th 60 . . . . . . . . . . . . . . . . . . . . . . . . . . . 15-16, 21-22, 24

-6-
People v. Anderson (2018)
5 Cal.5th 372 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
People v. Armstrong (2016)
1 Cal.5th 432 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
People v. Avila (2014)
59 Cal.4th 496 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27-30
People v. Baker (2021)
10 Cal.5th 1044 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
People v. Balcom (1994)
7 Cal.4th 414 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33

People v. Barton (2020)

56 Cal.App.5th 496 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

People v. Beeler (1995)

9 Cal.4th 953 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17-19
People v. Beltran (2015)
56 Cal.4th 935 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68

People v. Berg (2018)

23 Cal.App.5th 959 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66

People v. Bowers (2001)

87 Cal.App.4th 722 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
People v. Braslaw (2015)
233 Cal.App.4th 1239 . . . . . . . . . . . . . . . . . . . . . . . 56, 58, 61, 66

People v. Buckley (1986)

185 Cal.App.3d 512 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
People v. Carrillo (2004)
119 Cal.App.4th 94 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
People v. Castillo (1997)
16 Cal.4th 1009 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60-61
People v. Chapple (2006)
138 Cal.App.4th 540 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
People v. Cleveland (2001)
25 Cal.4th 466 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

-7-
People v. Cox (1990)
221 Cal.App.3d 980 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
People v. Cruz (1964)
61 Cal.2d 861. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40, 47
People v. Daniels (1991)
52 Cal.3d 815. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25-26
People v. Daveggio and Michaud (2018)
4 Cal.5th 790 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
People v. Dillon (2009)
174 Cal.App.4th 1367 . . . . . . . . . . . . . . . . . . . . . . . . . . 58-59, 64

People v. Ewoldt (1994)

7 Cal.4th 380 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33

People v. Franklin (1976)

56 Cal.App.3d 18 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21, 24
People v. Fuiava (2012)
53 Cal.4th 622 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15, 21, 25

People v. Garcia (1972)

27 Cal.App.3d 639 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42

People v. Goldberg (1984)

161 Cal.App.3d 170 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21, 24
People v. Hall (1986)
41 Cal.3d 826. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30

People v. Harris (2008)

43 Cal.4th 1269 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20-21
People v. Hillhouse (2002)
27 Cal.4th 469 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
People v. Holloway (2004)
33 Cal.4th 96 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15, 25
People v. Houston (2012)
54 Cal.4th 1186 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
People v. Hoyos (2007)
41 Cal.4th 872 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30

-8-
People v. Jablonski (2006)
37 Cal.4th 774 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
People v. Jackson (2016)
1 Cal.5th 269 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
People v. Kaihea (2021)
70 Cal.App.5th 257 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
People v. Kaurish (1990)
52 Cal.3d 648. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
People v. Kipp (1998)
18 Cal.4th 349 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21, 23

People v. Lang (1989)

49 Cal.3d 991. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50-51

People v. Ledesma (2006)

39 Cal.4th 641 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21-22
People v. Lemcke (2021)
11 Cal.5th 644 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61

People v. Lewelling (2017)

16 Cal.App.5th 276 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61

People v. Lopez (2018)

5 Cal.5th 339 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15, 17-19
People v. Loy (2011)
52 Cal.4th 46 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30

People v. Marchand (2002)

98 Cal.App.4th 1056 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
People v. McAlpin (1991)
53 Cal.3d 1289. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
People v. Merced (2001)
94 Cal.App.4th 1024 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
People v. Mickel (2016)
2 Cal.5th 181 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20-21
People v. Navarette (2003)
30 Cal.4th 458 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42-43

-9-
People v. Nesler (1997)
16 Cal.4th 561 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
People v. Partee (2020)
8 Cal.5th 860 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37-38
People v. Partida (2005)
37 Cal.4th 428 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
People v. Pearson (2012)
53 Cal.4th 306 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
People v. Peoples (2016)
62 Cal.4th 718 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51

People v. Pitts (1990)

223 Cal.App.3d 606 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43-44

People v. Rivas (2013)

214 Cal.App.4th 1410 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
People v. Romero (2017)
14 Cal.App.5th 774 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16, 20

People v. Scott (1978)

21 Cal.3d 284. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43

People v. Seumanu (2015)

61 Cal.4th 1293 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
People v. Simon (2016)
1 Cal.5th 98 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57

People v. Slaughter (1984)

35 Cal.3d 629. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
People v. Stewart (2004)
33 Cal.4th 425 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25-26
People v. Stiteley (2005)
35 Cal.4th 514 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
People v. Stone (2008)
160 Cal.App.4th 323 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
People v. Story (2009)
45 Cal.4th 1282 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27, 31

- 10 -
People v. Suazo (2023)
95 Cal.App.5th 681 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
People v. Vance (2010)
188 Cal.App.4th 1182 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
People v. Watson (1956)
46 Cal.2d 818. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34, 52, 68
People v. Williams (1988)
44 Cal.3d 883. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
People v. Williams (2021)
63 Cal.App.5th 990 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51-52

People v. Woods (2006)

146 Cal.App.4th 106 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69

People v. Younger (2000)

84 Cal.App.4th 1360 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55-56
People v. Zemek (2023)
93 Cal.App.5th 313 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

Rice v. Alcholic Beverage Control Appeals Board (1981)

118 Cal.App.3d 30 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67

United States v. Gonzalez (9th Cir. 2000)

214 F.3d 1109 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Wade v. Calderon (9th Cir. 1994)
29 F.3d 1312 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61

Statutes
Evidence Code
Section 352 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31

Section 1101 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31, 33

Section 1108 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27, 29, 31, 33

- 11 -
Penal Code
Section 21a . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62

Section 29.4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
Section 995 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28-29
Section 1089 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

Other Authorities
CALCRIM Jury Instructions

No. 222. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
No. 303. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52-53

No. 460. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56-58, 61-65

No. 625. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57, 59-62

No. 1002. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62-63, 65

California Rules of Court

Rule 8.360 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73

- 12 -
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT, DIVISION SIX

THE PEOPLE, ] Case No. B329873

]
Plaintiff and Respondent, ]
] Superior Court No.
v. ] 22CR003712
] (Monterey County)
PAUL RUBEN FLORES, ]
]
Defendant and Appellant. ]
]
INTRODUCTION
On Memorial Day weekend in 1996, Kristin Smart and
appellant Paul Flores both attended a college party on Crandall
Way in San Luis Obispo. Both drank heavily. When the party
ended, they walked back to the freshman dorms together. Smart
never made it to her dorm room and has not been seen since,
either alive or dead.
In 2021, appellant was arrested and charged with Smart’s
murder. (17 RT 4843.) At trial, two women – Ro.D. and S.D. –
testified about incidents in which they believed appellant had
drugged and raped them. Based on their testimony, the
prosecutor proceeded on the theory that appellant killed Smart
during the commission of a rape or attempted rape – in
particular, a rape or attempted rape of an intoxicated person. The
jury convicted appellant of first degree murder. (32 CT 9585.)
In his opening brief, appellant raised a series of errors
which marred his trial and require reversal or reduction of his
first degree murder conviction. Respondent argues that no errors
occurred and any that did occur were harmless. Appellant herein
replies to these contentions.

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 ARGUMENT
I.
By repeatedly declining to remove a
juror who had lost her ability to remain
neutral and abide by her oath, the trial
court violated appellant’s right to the
unanimous verdict of 12 impartial jurors.
Four times, appellant unsuccessfully asked to have Juror
No. 273 removed from the jury. (7 RT 1851-1853; 23 RT 6659,
6661; 28 RT 8291-8292, 8299; 37 RT 10824, 10828.) The first
three requests came after the juror interrupted the proceedings
with an emotional outburst or to alert the court that she was
under distress. In two of those instances, she specifically blamed
her distress on the aggressive nature of defense counsel’s cross-
examination. (7 RT 1847; 28 RT 8287, 8289.) In the other, she had
a loud and tearful breakdown during key prosecution testimony
about decomposition stains found under Ruben Flores’s deck. (23
RT 6634.) At a hearing following this incident, Juror No. 273
admitted speaking to the bailiff about the case and revealing her
feelings about the state of the evidence. (23 RT 6655.) Later in
trial, she admitted telling acquaintances about her jury service in
this high-profile case. (See 37 RT 10820, 10825-10826.)
The foregoing events disclosed, to a demonstrable reality,
that Juror No. 273 had developed a pro-prosecution bias and
lacked the ability to follow the court’s instructions. Appellant,
therefore, submits that the trial court abused its discretion by
denying his last three requests to discharge the juror. Respondent
counters that substantial evidence supported the trial court’s
ruling. The record shows otherwise.

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A. If a juror’s bias appears on the record as a
demonstrable reality, the trial court commits
reversible error by denying requests to discharge
that juror.
Respondent initially emphasizes the deferential standard of
review which appellate courts employ when the trial court rejects
a defendant’s motion to discharge a juror for bias. (RB, pp. 54-58.)
The California Supreme Court has stated, “‘The trial court’s
decision whether or not to discharge a juror under section 1089 is
reviewed for abuse of discretion and will be upheld if supported
by substantial evidence; to warrant discharge, the juror’s bias or
other disability must appear in the record as a demonstrable
reality.’” (People v. Lopez (2018) 5 Cal.5th 339, 365 (Lopez),
quoting People v. Holloway (2004) 33 Cal.4th 96, 124-125
(Holloway).)
Respondent seizes on the “substantial evidence” language
used in Lopez and Holloway. But the high Court’s jurisprudence
makes clear that, in cases involving the retention or discharge of
a juror, the Court envisions something more robust than classic
substantial evidence review. Otherwise, it would not have
imposed a “demonstrable reality” requirement in the very same
sentence in which it spoke of substantial evidence and abuse of
discretion review.
The demonstrable reality standard is “more comprehensive
and less deferential” than either the abuse of discretion or
substantial evidence standard. (People v. Fuiava (2012) 53
Cal.4th 622, 712 (Fuiava).) To affirm a trial court’s ruling under
this standard, “the reviewing court must be confident that the
trial court’s conclusion is manifestly supported by evidence on
which the court actually relied.” (Ibid.) This “heightened
standard” exists “to protect a defendant’s fundamental rights to
due process and a fair trial, based on the individual votes of an

- 15 -
unbiased jury.” (People v. Allen and Johnson (2011) 53 Cal.4th 60,
71 (Allen and Johnson).)
The demonstrable reality test has produced multiple
findings of reversible error, following a trial court’s decision to
retain or discharge a seated juror. (See, e.g., People v. Armstrong
(2016) 1 Cal.5th 432, 451; Allen and Johnson, supra, 53 Cal.4th
at pp. 71, 79; People v. Cleveland (2001) 25 Cal.4th 466, 485;
People v. Barton (2020) 56 Cal.App.5th 496, 509, 516; People v.
Romero (2017) 14 Cal.App.5th 774, 781 (Romero); People v.
Bowers (2001) 87 Cal.App.4th 722, 730.) While all of these cases
except Romero arose following the trial court’s decision to
discharge a juror, the same standard governs when the trial court
opts to retain a seated juror over defense objection. (See People v.
Jablonski (2006) 37 Cal.4th 774, 807.) In fact, a trial court’s
decision to retain a biased juror may be worse than an erroneous
decision to discharge an unbiased one. In the latter situation, the
defendant still receives the benefit of a “unanimous verdict of 12
impartial jurors.” (People v. Nesler (1997) 16 Cal.4th 561, 578.) In
the former situation, he does not. (Ibid.; United States v. Gonzalez
(9th Cir. 2000) 214 F.3d 1109, 1111.)
Respondent emphasizes that the jury trial system must
“tolerate a certain amount of imperfection short of actual bias.”
(RB, p. 54, citing In re Hamilton (1999) 20 Cal.4th 273, 296.)
Appellant does not disagree. But, as will be seen, the record in
this case shows more than just “imperfection.” It shows actual
bias and lack of impartiality.
B. By the time of appellant’s last three requests to
discharge Juror No. 273, the juror’s inability to
remain fair and impartial, and to abide by her oath,
appeared in the record as a demonstrable reality.
Respondent contends that substantial evidence supported
the trial court’s belief that Juror No. 273 remained capable of
rendering a fair and impartial verdict, following defense counsel’s

- 16 -
second, third, and fourth requests to discharge her. (RB, p. 58.) In
making this argument, respondent essentially breaks appellant’s
claim into its component parts, then seeks to rebut each part in
isolation. For example, respondent cites case law holding that the
trial court has no obligation to discharge a juror simply because
that juror: (1) shows emotion or experiences stress; (2) expresses
a belief in the defendant’s guilt; (3) voices frustration with
defense counsel; or (4) fails to follow the court’s instructions. (RB,
pp. 55-57.) The problem with respondent’s analysis is that it fails
to address the significance of all these actions occurring in
combination and, in some cases, multiple times.
Juror No. 273’s difficulties with the case became a
recurring theme throughout trial. Those difficulties included a
loud and dramatic emotional outburst which defense counsel
called the worst he had seen by a juror in his 49 years of trial
practice. (23 RT 6645.) They also included two interruptions of
trial, two known instances of disobeying the court’s orders not to
discuss the case, and two anxiety attacks which the juror blamed
on the manner of defense counsel’s questioning. Taken together,
these incidents showed, to a demonstrable reality, that Juror No.
273 had lost the ability to remain fair and impartial and to
refrain from discussing the case outside the deliberation room.
1. Juror No. 273’s statements and actions
throughout trial manifestly refuted her claims
that she could remain fair and impartial.
Respondent places considerable weight on Juror No. 273’s
own assertions that her emotional state would not prevent her
from keeping an open mind. (RB, p. 58, citing 7 RT 1847; 23 RT
6634-6636; 28 RT 8287.) Relying on Lopez, supra, 5 Cal.5th at p.
365, and People v. Beeler (1995) 9 Cal.4th 953, 972 (Beeler),
respondent argues that the trial court could rely on the juror’s
own statements that she still had the ability to serve. Both Lopez
and Beeler are distinguishable from appellant’s case.
- 17 -
 In Lopez, the juror requested a private audience with the
court in the midst of prolonged deliberations during the penalty
phase of a death penalty case. (Lopez, supra, 5 Cal.5th at pp. 361-
363.) The juror told the court that the trial was causing her
“intolerable stress,” that she woke up “crying at night because of
the gravity of the case,” and that the stress of the trial had
affected her performance at work. (Id. at p. 363.) Because of these
difficulties, the juror asked to be removed from the case. (Ibid.)
The prosecutor, but not defense counsel, joined in the juror’s
request. (Ibid.) The court declined to dismiss her but said it would
do so if the issue arose again – which it did not. (Ibid.)
In Beeler, supra, 9 Cal.4th at pp. 965, 972, the juror called
the court clerk a few days before the guilt phase of a death
penalty case. During the call, she broke down crying and told the
clerk she did not know if she could serve as a juror because of the
case’s upsetting nature. (Id. at p. 972.) When the court brought
the juror in for questioning several days later, the juror
apologized for her earlier phone call and said, “I know I could be
fair.” (Id. at pp. 973-974.) The trial court allowed her to remain on
the case. (Id. at p. 972.)
Lopez and Beeler differed from appellant’s case in at least
three key ways. First, both cases arose from but a single incident.
Appellant’s case involved three separate incidents, plus another
hearing where the juror implicitly admitted to violating the
court’s orders by telling others of her jury service in this case.
(See 37 RT 10820, 10825-10826.) With each additional incident, it
becomes increasingly difficult to dismiss a juror’s statements or
actions as an isolated and momentary expression of emotion.
Moreover, with each additional incident, it becomes increasingly
difficult to give credence to the juror’s continued claims of
impartiality. The trial court in Lopez recognized as much, stating

- 18 -
that it would dismiss the juror if another problem arose. (Lopez,
supra, 5 Cal.5th at p. 363.)
Second, the jurors in Lopez and Beeler were emotional but
not in a way which suggested favoritism toward one side. The
Lopez juror attributed her stress to “the gravity of the case.”
(Lopez, supra, 5 Cal.5th at p. 363.) In Beeler, the juror expressed
doubt about her abilities to serve due to the “[n]ature of the case.”
(Beeler, supra, 9 Cal.4th at p. 972.) Both comments could just as
well have referred to either the gravity of the alleged crime or the
gravity of having to vote on a literal question of life and death.
No such ambiguity existed in appellant’s case. Juror No.
273’s anxiety attacks did not occur at random. The juror came
from a family of law enforcement officers (7 RT 1848) and the
timing and explanations for her attacks, plus her comments to
the bailiff, revealed a decidedly prosecution-friendly theme to
those attacks. The juror’s emotional breakdown occurred during
key prosecution testimony which, if accepted, suggested that
Smart’s body had once been buried underneath Ruben’s deck. Her
two other anxiety attacks stemmed, not from any grisly details
about the case, but from the mere fact of defense counsel trying to
do his job by vigorously cross-examining prosecution witnesses. (7
RT 1846-1847; 28 RT 8287, 8289.)
A third key difference between this case and the Lopez and
Beeler cases is that the jurors in those cases never questioned
their own ability to remain fair and impartial if they remained on
the jury. In fact, the juror in Beeler stated, in no uncertain terms,
“I know I could be fair.” (Beeler, supra, 9 Cal.4th at p. 972.)
By contrast, Juror No. 273 equivocated on this issue at
least twice. The first time occurred during a conversation with
the bailiff, when she openly questioned her own ability to remain
neutral. (23 RT 6640, 6655.) Later, following the third incident,
the court pointedly asked Juror No. 273 if the events which gave

- 19 -
rise to her anxiety attack had hindered her ability to remain
neutral and keep an open mind. (28 RT 8287-8289.) Rather than
answer the question, Juror No. 273 demurred, asking for “a
second to think about it.” (28 RT 8289.) The court replied, “Sure,”
at which point the juror changed the subject to complain about
defense counsel’s “repetitive” and “aggressive” questioning of
witnesses. (28 RT 2829.) Afterwards, the court asked Juror No.
273 if “anything about that . . . has caused you to form an
opinion.” (28 RT 8289.) Only then did the juror say she had not.
(28 RT 8289.) But she never actually answered the court’s
original question: whether the day’s events, or other previous
events, had caused her to lose her neutrality. (28 RT 8288-8289.)
In his opening brief, appellant cited Romero, supra, 14
Cal.App.5th at p. 782, for the proposition that the trial court must
look beyond the juror’s own claim that she can remain fair and
impartial. (AOB, p. 48.) Respondent characterizes Romero as a
“unique” case with an improbable fact pattern – a juror who had a
previous teacher-student relationship with the complaining
witness and who still retained a positive impression of that
witness. (RB, p. 60; Romero, at p. 779.) But Romero’s unusual
facts are beside the point. The case’s significance stems from its
recognition that a juror’s self-serving claim of impartiality cannot,
by itself, overcome strong evidence to the contrary. (Id. at p. 782.)
Respondent asserts that, under California Supreme Court
precedent, reviewing courts must defer to the trial court when a
juror gives conflicting statements on her ability to remain
impartial. (RB, pp. 55, 60, citing People v. Mickel (2016) 2 Cal.5th
181, 217 (Mickel); People v. Harris (2008) 43 Cal.4th 1269, 1304
(Harris).) Mickel, however, involved an unsuccessful challenge for
cause toward four prospective jurors. (Mickel, at pp. 213-216.) As
one appellate court has recognized, the demonstrable reality
standard does not apply to such rulings; it applies only to rulings

- 20 -
regarding the removal or retention “of jurors who have already
been sworn to decide the case and who have heard evidence.”
(People v. Merced (2001) 94 Cal.App.4th 1024, 1029-1030
(Merced).) This distinction is important because, as previously
discussed, the demonstrable reality standard accords the trial
court considerably less deference than in traditional abuse of
discretion analysis. (Fuiava, supra, 53 Cal.4th at p. 712.)
Harris is also inapposite. There, the juror’s father received
a threatening phone call just before the start of the trial’s penalty
phase. (Harris, supra, 43 Cal.4th at p. 1300.) While the juror
requested that the court provide protection for his family, he
consistently denied that the threat would impact his neutrality of
his ability to deliberate. (Id. at pp. 1300-1302.) Hence, unlike
appellant’s case, the juror made no conflicting statements. With
no conflict in the juror’s statements, and no basis in the record for
finding the juror had lost the ability for impartiality, there is
nothing remarkable about the fact that the trial court credited
the juror’s own, uncontradicted statements on this point. It does
not follow that an appellate must defer to the trial court’s finding
when, as here, the record convincingly demonstrates the juror
had lost the ability for impartiality.
2. The totality of Juror No. 273’s conduct revealed
that she had lost the ability to be fair and
impartial, or even to follow the trial court’s
orders.
Respondent cites a series of cases for the principle that a
juror does not violate her oath by forming midtrial opinions about
the defendant or about the case’s strength or weakness. (RB, pp.
56, 58, citing Allen and Johnson, supra, 53 Cal.4th at pp. 72-73;
People v. Kipp (1998) 18 Cal.4th 349, 366 (Kipp); People v.
Goldberg (1984) 161 Cal.App.3d 170, 192 (Goldberg); People v.
Franklin (1976) 56 Cal.App.3d 18, 25-26 (Franklin).) Indeed,
respondent calls it “unrealistic to expect jurors not to think about

- 21 -
the case during the trial.” (RB, p. 56, quoting People v. Ledesma
(2006) 39 Cal.4th 641, 729.) So long as the juror’s “mind remains
open to a fair consideration of the evidence, instructions, and
shared opinions expressed during deliberations,” the juror
remains in compliance with her duties. (RB, p. 56; Allen and
Johnson, p. 73.)
In this case, Juror No. 273’s statements and actions belied
her ability to remain an impartial arbiter. A juror who could
fairly evaluate the case would not have suffered a dramatic
emotional breakdown in response to prosecution evidence, or
suffered from anxiety attacks simply because defense counsel had
tried to do his job. Nor would she have openly questioned her own
neutrality, as Juror No. 273 did during her conversation with the
bailiff. (23 RT 6655.) While the juror later insisted she had not
yet come to any conclusion (23 RT 6655-6656), the trial court
questioned her again on this topic some 11 days later, after she
again complained of anxiety. (23 RT 8287-8289.) Instead of giving
a straight answer to the trial court’s question, Juror No. 273
filibustered, then launched into another complaint about defense
counsel’s questioning. (23 RT 8288-8289.)
Juror No. 273’s actions also revealed, to an absolute
certainty, that she was either unwilling or unable to follow the
court’s orders. At the start of trial, the court ordered jurors not to
discuss the case with anyone until deliberations began. (1 RT 15-
16.) It gave similar orders throughout the entire trial, reminding
jurors before nearly every break to refrain from discussing the
case. (See, e.g., 2 RT 306-307, 356; 6 RT 1567; 8 RT 2214; 12 RT
3315, 3335, 3439; 21 RT 6045, 6104; 22 RT 6341.) The court gave
that same order immediately after Juror No. 273 interrupted
Cindy Arrington’s testimony to demand a break. (23 RT 6634.)
Yet, the juror just as immediately violated the order by
proceeding to speak to the bailiff during that break. (23 RT 6640.)

- 22 -
 Juror No. 273 later violated the court’s orders a second time
by telling acquaintances of her jury service in appellant’s case.
(37 RT 10820, 10825-10826.) Respondent downplays this violation
– attributing it to the “laudable” motive of ensuring that nobody
talked to Juror No. 273 about the case. (RB, p. 59, citing 37 RT
10820.) In fact, there would be no reason for anyone to discuss the
case with her in the first place unless she had told them of her
presence on the jury.
In any case, Juror No. 273’s comments revealed that she
did not just tell others about the fact of her jury service in this
case. During an in-court hearing about whether she had received
information from outside the courtroom, the juror stated,
“everybody knows that I like had a hard time one day.” (37 RT
10820.) Such comments were an obvious reference to the juror’s
emotional breakdown during Arrington’s testimony. Moreover,
the context made clear that the word “everybody” did not refer to
the participants at trial, but to her other acquaintances who had
tried to discuss the case with her. (37 RT 10820.) If Juror No. 273
told friends of her emotional breakdown at trial, it stands to
reason that she also told them of the testimony which led to that
breakdown – and of the impressions that testimony left on her.
The recurring and multifarious nature of Juror No. 273’s
problems set this case apart from those relied on by respondent.
All of those cases arose from a single, isolated incident. In Kipp,
the juror criticized the defendant’s appearance during voir dire.
(Kipp, supra, 18 Cal.4th at p. 366.) On appeal, the defendant
complained for the first time that the trial court should have
removed the juror for cause. (Id. at pp. 364-365.) The Court found
the issue forfeited, but found no abuse of discretion even if it was
not. (Id. at p. 366.) There was no indication that the issue of the
defendant’s appearance ever came up again at trial.

- 23 -
 Similarly, in Franklin, supra, 56 Cal.App.3d at pp. 23-25, a
juror who had once been drugged sought to disqualify herself
during deliberations, after hearing the defense’s argument that
the accused had involuntarily ingested LSD. In Goldberg, the
juror asked to be discharged after she overheard other jurors
discussing news coverage of the case. (Goldberg, supra, 161
Cal.App.3d at pp. 191-192.) In both Franklin and Goldberg, the
jurors later professed their ability to put the improper influence
out of their minds and, in both cases, the issue never came up
again. (Franklin, at p. 25-26; Goldberg, at p. 192.)
Kipp, Franklin, and Goldberg all involved a trial court’s
decision to allow a juror to remain on the jury. Conversely, in
Allen and Johnson, the trial court removed a juror after learning
of his mid-deliberation comment that, “[w]hen the prosecution
rested, she didn’t have a case.” (Allen and Johnson, supra, 53
Cal.4th at p. 70.) The trial court took this statement to mean the
juror had prejudged the case before hearing the defense evidence,
jury instructions, and closing arguments. (Id. at p. 72.) Our
state’s high Court reversed, emphasizing that it had found no
case “in which a juror was discharged for prejudgment based
solely on comments made during deliberations.” (Id. at p. 73.) The
Court also found the juror’s remarks more equivocal than the
trial court had believed them to be. In the high Court’s view, the
comments merely indicated the juror’s “state of mind at a single
point during the trial;” they did not suggest any “intention to
ignore the rest of the proceedings.” (Ibid.)
If anything, Allen and Johnson serves as a good example of
the demonstrable reality standard in action. After all, the high
Court did not defer to the trial court’s interpretation of the juror’s
remarks or to its exercise of discretion in removing the juror.
Instead, it drew its own conclusions about the meaning and
significance of the juror’s comments and whether they warranted

- 24 -
his removal. And the conclusion it drew was that a passing,
ambiguous remark during deliberations did not justify the juror’s
removal.
In appellant’s case, the incidents did not occur during
deliberations, but during the evidentiary phase of trial. Taken
together, those incidents afford this Court no basis for confidence
that Juror No. 273 retained the ability to be fair and impartial by
the time of appellant’s second request to discharge her – let alone,
his third and fourth requests. (See Fuiava, supra, 53 Cal.4th at p.
712.) The incidents also provide no basis for confidence that Juror
No. 273 could follow the court’s instructions to not discuss the
case outside the deliberation room. In fact, quite the opposite is
true. The record makes plain that Juror No. 273 could not follow
this order, since she violated it at least twice – including once
immediately after the court had given it. (23 RT 6634, 6640.)
Respondent cites a series of cases for the proposition that,
absent deliberate misconduct, a trial court need not remove a
juror for failing to adhere to one of its instructions. (RB, p. 57,
citing Holloway, supra, 33 Cal.4th at pp. 124-125; People v.
Daniels (1991) 52 Cal.3d 815, 864; People v. Stewart (2004) 33
Cal.4th 425, 510.) But Juror No. 273 never denied that she acted
in deliberate violation of the court’s instructions. Indeed, such a
claim would have defied credulity. Not a day of trial passed by
without the court ordering jurors to refrain from talking about
the case. No juror could reasonably have believed that discussing
a witness’s testimony with the bailiff was outside the purview of
these orders. The case, thus, differs from Holloway, in which the
juror quite plausibly maintained that he did not know it violated
the court’s orders to tell other jurors he had asked the bailiff for a
photograph of the victim while alive. (Holloway, at pp. 123-125.)
Daniels and Stewart are also of no help to respondent. In
Daniels, the trial court did remove the juror for having multiple

- 25 -
pre-deliberation discussions about the case and expressing
opinions on the defendant’s guilt. (Daniels, supra, 52 Cal.3d at
pp. 863-864.) The California Supreme Court affirmed, citing the
juror’s “serious and wilful misconduct” and repeat violations. (Id.
at pp. 863-864.) Juror No. 273 engaged in the exact same conduct
as the discharged juror in Daniels. And, like the Daniels juror,
she did so on more than one occasion.
In Stewart, supra, 33 Cal.4th at pp. 509-510, the defendant
brought a motion for new trial after learning that a juror had
encountered a female defense witness outside the courtroom and
commented on the witness’s good looks. The juror admitted the
encounter but denied that it affected her impartiality. (Id. at p.
510.) While the California Supreme Court found the juror’s
actions constituted misconduct, it called the violation “trifling”
since it had nothing to do with “the merits of the case.” (Ibid.) The
same cannot be said of Juror No. 273’s discussion with the bailiff.
Finally, respondent argues that a trial court need not
discharge a juror just for expressing frustration with defense
counsel. (RB, pp. 56-57, citing People v. Kaurish (1990) 52 Cal.3d
648, 694; People v. Zemek (2023) 93 Cal.App.5th 313, 337-338.)
Again, that is not what happened here. In both Kaurish and
Zemek, the jurors made passing remarks near the end of long
trials. (Kaurish, at p. 694; Zemek, at pp. 334-335.) Here, Juror No.
273’s actions involved multiple interruptions and anxiety attacks,
multiple violations of the court’s orders, and one loud and
dramatic emotional breakdown.
By denying appellant’s last three requests to discharge
Juror No. 273, the trial court abused its discretion and violated
appellant’s right to the unanimous verdict of 12 fair and
impartial jurors. Because such errors are structural, this Court
must reverse appellant’s conviction. (Gray v. Mississippi (1987)
481 U.S. 648, 668.)

- 26 -
 II.
Because there was no evidence that
appellant sexually assaulted Smart, the
trial court abused its discretion and
violated due process by admitting two
uncharged rape incidents.
Under Evidence Code section 1108, the prosecutor called
two female witnesses – Ro.D. and S.D. – whose testimony implied
that appellant had drugged and raped them after meeting them
in bars. The women’s testimony transformed the case, enabling
the prosecutor to argue that appellant had done the same to
Smart, though no independent evidence supported this theory. By
presenting this theory in his closing argument, the prosecutor
was able to fashion a motive for an otherwise inexplicable crime.
He was also able to obtain a conviction for not just murder but
first degree felony-murder in the commission of a rape or
attempted rape.
Respondent argues that, because the charging document
included allegations of felony-murder in the commission of a rape,
the trial court correctly admitted Ro.D. and S.D.’s testimony. (See
1 CT 126-127.) They further argue that, even if the trial court
abused its discretion by admitting the testimony, the error was
harmless. This Court should reject these contentions.
A. A bare allegation of rape or attempted rape, with no
holding order and no judicial finding on the
allegation’s merit, is insufficient to justify the
admission of uncharged offense evidence under
Evidence Code section 1108.
In any case in which “the defendant is accused of a sexual
offense,” the prosecution may introduce character evidence of his
prior or subsequent sexual offenses. (Evid. Code, § 1108, subd.
(a).) The California Supreme Court has found Evidence Code
section 1108 applicable in felony-murder cases with a sexual
offense as the target crime. (People v. Story (2009) 45 Cal.4th
1282, 1294 (Story); People v. Avila (2014) 59 Cal.4th 496, 515
- 27 -
(Avila).) Respondent contends that these cases settle the issue.
Because the information alleged that the murder occurred in the
commission of a rape or attempted rape, respondent argues that
the prosecution could introduce evidence of appellant’s other
sexual offenses. (RB, pp. 63-64; see 1 CT 126-127.)
The issue is not as straightforward as respondent perceives
it to be. If it were, it would allow the prosecutor to use otherwise
inadmissible character evidence to create a sexual motive that no
admissible evidence actually shows. (See People v. Albarran
(2007) 149 Cal.App.4th 214, 225-226 (Albarran).) It would also
create an incentive for prosecutors to charge factually
unsupported felony-murder allegations as a mere pretense for
introducing devastating character evidence.
It bears mention that this state’s law includes no
mechanism for weeding out pretextual or meritless felony-murder
allegations before trial. In this respect, California law treats
meritless felony-murder allegations differently than meritless
charges on substantive crimes. The latter may be dismissed after
the preliminary hearing or grand jury process, or by way of a
motion to dismiss under Penal Code section 995. Conversely, once
a prosecutor charges a felony-murder allegation, the defense has
no way to challenge the allegation’s merits until trial.
In a murder case, the magistrate at a preliminary hearing
must find probable cause to hold the defendant for trial on
murder. (See generally People v. Slaughter (1984) 35 Cal.3d 629,
636-637.) But the magistrate need not make any finding as to the
degree of murder. (People v. Buckley (1986) 185 Cal.App.3d 512,
520-523.) As such, when the first degree murder allegation rests
on a felony-murder theory, the trial court does not need to find
probable cause regarding the target felony. The magistrate at
appellant’s preliminary hearing recognized as much, declining to
make any finding on the prosecution’s felony-murder allegation.

- 28 -
(20 CT 5825.) That, in turn, meant appellant could not later seek
dismissal of the allegation under Penal Code section 995.
With courts having no way to screen out unsupported
felony-murder allegations before trial, the prosecutor enjoys
complete and unilateral discretion to bring such allegations to
trial. But that does not mean prosecutors should have this same
unilateral discretion to decide if Evidence Code section 1108
applies. Yet, that is essentially what respondent argues. Under
respondent’s view, the prosecution in a murder case could trigger
an exception to the usual rule against character evidence just by
declaring their intent to proceed on a theory for which character
evidence is admissible. It would not matter that the theory had no
basis in evidence, since the admissibility of the character
evidence would derive from the bare fact of the prosecutor’s
felony-murder allegation.
To prevent such a scenario, the introduction of uncharged
sex offense evidence in a felony-murder case must hinge on the
prosecution’s ability to establish a threshold level of evidentiary
support for the felony-murder sexual offense allegation. This
threshold showing should be at least as rigorous as the probable
cause standard which exists at a preliminary hearing or grand
jury proceeding. (Cummiskey v. Superior Court (1992) 3 Cal.4th
1018, 1026.)
Respondent asserts that “none of the section 1108 cases
cited by appellant contained any suggestion that the prosecution
was required to satisfy a ‘threshold showing’ beyond the existence
of a qualifying accusation contained in a charging document.”
(RB, p. 67.) But nothing in any of those cases suggested that the
issue ever came up at trial or on appeal. As discussed in
appellant’s opening brief, every one of those cases involved
considerable evidence of a killing in the commission of a sexual
offense. (See AOB, pp. 56-58, citing Avila, supra, 59 Cal.4th at p.

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515; People v. Daveggio and Michaud (2018) 4 Cal.5th 790, 824;
People v. Baker (2021) 10 Cal.5th 1044, 1099-1100; People v. Loy
(2011) 52 Cal.4th 46, 62.)
In other contexts, our courts have required a threshold
showing of relevancy before a party may introduce otherwise
inadmissible evidence. In his opening brief, appellant gave the
examples of third party culpability evidence, gang evidence, and
evidence of a murder victim’s violent character. (AOB, pp. 59-60.)
In each of these examples, the relevancy of the proffered evidence
rests on a preliminary fact or showing. For third party culpability
evidence, the preliminary showing requires the existence of
evidence linking the third party to the crime’s perpetration.
(People v. Hall (1986) 41 Cal.3d 826, 833.) For gang evidence, the
case’s facts must inherently suggest the presence of a gang
motive. (Albarran, supra, 149 Cal.App.4th at p. 227.) And, for
evidence of the victim’s violent character, the defendant must
demonstrate “some evidentiary support” for his self-defense
theory. (People v. Hoyos (2007) 41 Cal.4th 872, 912-913.)
In none of the foregoing scenarios do the courts permit the
introduction of generally inadmissible evidence based on nothing
more than the proponent’s stated intent to proceed on a theory for
which that evidence would be admissible. Just as a defendant
must establish the foundational fact of relevancy when seeking to
introduce third party culpability evidence or evidence of the
victim’s violent character, the prosecution must make this same
showing when seeking to introduce uncharged sex offense
evidence in a felony-murder case. And, just as a defendant cannot
establish relevancy simply by announcing his intent to proceed on
a theory of third party culpability or self-defense, the prosecution
should not be permitted to establish the relevancy of uncharged
offense evidence simply by declaring their intent to pursue a
felony-murder theory based on a sexual offense.

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 To be sure, even if a bare felony-murder allegation were
sufficient to trigger Evidence Code section 1108, the trial court
would still wield discretion to exclude uncharged sex offenses as
substantially more prejudicial than probative. (Story, supra, 45
Cal.4th at pp. 1294-1295; Evid. Code, § 352.) But defendants
should not have to rely on the trial court’s “broad discretion”
under Evidence Code section 352 to exclude character evidence
which proves nothing that the remaining evidence places at issue.
(People v. Anderson (2018) 5 Cal.5th 372, 402.) If the prosecution
lacks sufficient evidence to place felony-murder at issue, then
Evidence Code section 1108 simply never comes into play.
Instead, the uncharged sex offenses are inadmissible under this
state’s general prohibition on character evidence. (Evid Code, §
1101, subd. (a).)
B. The prosecutor made no threshold showing that
appellant committed a sexual offense against Smart.
Respondent next contends that, even if the prosecution had
to make a threshold showing to trigger Evidence Code section
1108’s application, they made that showing in this case. (RB, pp.
68-70.) The magistrate, however, found differently – denying the
prosecutor’s motion to add two rape charges to the complaint
after finding that the evidence of those charges would not be
cross-admissible on the murder count. (5 CT 1324-1332.) The
magistrate elaborated that the prosecution’s offer of proof showed
“no . . . evidence of sexual conduct between [appellant] and Ms.
Smart, no evidence that he drugged her, no physical evidence of
sexual contact, no eyewitness testimony, nothing overheard from
the dorm room, and no forensic evidence.” (5 CT 1328.)
Respondent nonetheless argues that the non-character
evidence gave rise to “an inference that appellant drugged and/or
took advantage of an unconscious or semiconscious” Smart. (RB,
p. 65.) In support of this contention, respondent largely rehashes

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the contentions made by the prosecutor in the trial court. (RB, pp.
68-70.) As appellant has already addressed those contentions in
Argument II.E, at pp. 60-65, of his opening brief, there is no need
to repeat those arguments at length. Suffice it to say, the fact
that appellant had a romantic interest in Smart, helped walk her
home, hugged her and rubbed her arms when she became cold,
and behaved boorishly with other women at the Crandall Way
party (RB, pp. 68-69), does not constitute evidence that he
sexually assaulted Smart. Nor does the fact that, when talking to
police, he contradicted others’ statements by denying any
attraction to Smart and denying that he tried to kiss any women
at the party. (35 CT 10325, 10373, 10389-10390.)
Respondent also emphasizes Jennifer Hudson’s testimony
that appellant once referred to Smart as a “dick tease” and
claimed to have buried her underground in Huasna. (RB, pp. 69-
70; see also 14 CT 4139-4140 [Hudson’s preliminary hearing
testimony]; 26 RT 7558 [Hudson’s trial testimony].) Even if
appellant made such comments, they merely suggested that he
desired some type of sexual activity and Smart did not. (See AOB,
p. 62.) The comments provided no clue about what, if anything,
appellant had actually done to try to initiate sexual activity – let
alone, sexual intercourse itself. They also did nothing to suggest
that appellant used force or tried to initiate sexual activity when
Smart was unconscious. Finally, they revealed nothing about
when the sex – or attempt at sex – occurred. This is no small
point because, without knowing when it happened, there is no
way to know whether Smart remained too intoxicated to consent.
Even under the relatively low probable cause standard used
at a preliminary hearing, the non-character evidence failed to
establish that appellant killed Smart in the commission of an
actual or attempted rape of any type. The magistrate correctly
recognized this lack of proof by denying the prosecution’s motion

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to join appellant’s murder case with two additional charges of
rape by intoxication. (5 CT 1324-1332.) By admitting Ro.D. and
S.D.’s testimony for character purposes, despite the lack of
evidence that appellant sexually assaulted Smart, the trial court
abused its discretion and violated appellant’s due process rights.
(Estelle v. McGuire (1991) 502 U.S. 62, 75 (Estelle).)
C. The trial court further abused its discretion by
admitting the uncharged offense evidence for non-
character purposes under Evidence Code section
1101, subdivision (b).
The trial court not only admitted Ro.D. and S.D.’s
testimony for character purposes under Evidence Code section
1108. It also admitted that same testimony to show intent and
common plan or scheme under Evidence Code section 1101,
subdivision (b). (6 Aug. RT 1599.) In his opening brief, appellant
argued that this ruling constituted an additional abuse of
discretion. (AOB, Argument I.F, pp. 65-68.) Respondent addresses
this argument in cursory fashion, asserting that, because Ro.D.
and S.D.’s testimony was admissible under Evidence Code section
1108, this Court need not address its admissibility for non-
character purposes. (RB, p. 70.) For reasons discussed in the
previous subsection, appellant disagrees.
Respondent cites People v. Balcom (1994) 7 Cal.4th 414,
423, for the principle that other acts are admissible to prove
common scheme and plan when those acts contain “‘a concurrence
of common features,” such that they appear to be “individual
manifestations” of a “general plan.” (RB, p. 70.) They additionally
cite People v. Ewoldt (1994) 7 Cal.4th 380, 402, for the principle
that uncharged offenses are admissible to prove intent so long as
they bear sufficient similarity to the charged acts to support the
inference of common intent. (RB, p. 70.) Respondent, however,
does not elaborate on why the acts described by Ro.D. and S.D.
met these criteria. (RB, p. 70.) As such, appellant has nothing

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more to add beyond the contentions already made in Argument
I.F of his opening brief.
D. This Court must reverse appellant’s conviction, or
reduce it to second degree murder, due to the trial
court’s erroneous admission of highly inflammatory
uncharged offense evidence.
Respondent next argues that, even if the trial court
erroneously admitted the uncharged offense evidence, there is no
reasonable probability appellant would have achieved a better
outcome in the error’s absence.1 (RB, p. 71, citing People v.
Watson (1956) 46 Cal.2d 818, 836 (Watson).) Their argument
lacks merit.
Respondent characterizes the evidence of appellant’s guilt
as “compelling,” even without Ro.D. and S.D.’s testimony. (RB, p.
71.) Their argument, to some extent, rests on the same evidence
they cited in arguing that there was threshold evidence of a
sexual assault. (RB, pp. 71-72.) Appellant, thus, reiterates the
same arguments he made in response to those contentions. (See
Argument II.B, supra, pp. 31-33.)
As additional circumstantial evidence of guilt, respondent
points to “appellant’s appearance and conduct after Smart went
missing.” (RB, p. 72.) For instance, they note that appellant: (1)
gave differing explanations for his black eye (35 CT 10349-10350;
10 RT 2832, 2878; 9 RT 2412); (2) joked to his roommate Derrick
Tse that Smart was currently having lunch with his mother (8 RT
2245-2247); (3) “lowered his head,” and fell quiet when Karen
Hall jokingly asked what he had done with Smart (14 RT 4016-
4017); (4) did not respond when his mother, Susan, urged him to

1
To avoid repeating his previous arguments, appellant
proceeds on the assumption that Watson applies for Arguments II
through V (as respondent contends). Appellant nonetheless
stands by his arguments that the applicable standard is the one
set forth in Chapman v. California (1967) 386 U.S. 18, 24.
- 34 -
listen to the podcast and see if they could “punch holes” in it (21
RT 6038-6039); and (5) chased off his then girlfriend, A.C., when
she began walking toward the avocado trees in Ruben’s backyard.
(RB, p. 72; 18 RT 5230-5233.)
As the prosecutor did at trial, respondent’s argument
largely substitutes innuendo for actual evidence. That appellant
engaged in dark humor with his roommate added nothing to the
prosecution’s case except to make appellant look callous. In a
similar vein, the incident with A.C. had little, if any, inherent
relevancy. The inference which the prosecutor drew from the
incident was that appellant and Ruben redirected A.C. from the
avocado trees because they did not want her to see what they had
buried underneath the deck. (See 39 RT 11471-11472.) That
inference made little sense.
If appellant had concerns about what A.C. might see, he
would never have brought her out to the backyard in the first
place. (See 18 RT 5230.) Moreover, the avocado trees were in the
opposite direction of the deck. (See 2 Aug. CT 598-599; 3 Aug. CT
899-900; 18 RT 5235-5236.) Besides, how would A.C. have seen
something which, according to the prosecution’s own theory, was
buried some two to four feet underground? (See 23 RT 6668; 39
RT 11475-11476.)
Respondent similarly overstates the importance of
appellant’s conversations with Karen Hall and Susan Flores.
When Hall asked appellant what he had done with that “missing
girl,” appellant instantly replied, “Nothin’.” (See 35 CT 10398.)
What more could he have said to deny his involvement? If he felt
uncomfortable discussing the subject further, it would hardly
come as a surprise since he had only recently been subject to
relentless police questioning on this very same topic. (10 RT 2872;
12 RT 3413-3414, 3418; 14 RT 4015.)

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 Appellant’s phone call with Susan also had little
significance. The call constituted but one of 9,587 intercepted
phone calls, obtained during a month-long wiretap operation. (21
RT 6024, 6029.) No other call came into evidence, save for the 20-
minute conversation in which Susan did almost all the talking,
with appellant chiming in only to give the occasional one-word
response. (21 RT 6034-6035, 6044.) It speaks volumes of the
prosecution’s case that the single most incriminating call they
could come up with was one in which appellant merely made no
response to his mother’s ramblings.
Appellant did give differing accounts about how he came to
suffer a black eye. (35 CT 10349-10350, 10390-10391; 9 RT 2412;
10 RT 2832.) But such evidence fell far short of proving guilt –
either by itself or in combination with other evidence obtained
during the more than 20 years following Smart’s disappearance.
If that evidence had established guilt, the prosecution would not
have waited until 2021 to charge appellant with Smart’s death.
As additional evidence of guilt, respondent cites the human
remains dog searches at the Santa Lucia dorm building and
underneath Ruben’s deck. (RB, pp. 72-73.) They also point to the
follow-up investigation at Ruben’s home, in which ground
penetrating radar revealed that an area under the deck had been
dug up and refilled. (RB, p. 73; see 22 RT 6367-6370.) Further
testing purportedly revealed that the soil in that area contained
blood, as well as fibers consistent with the clothes Smart wore to
the Crandall Way party. (RB, pp. 73-74; 23 RT 6613-6614; 26 RT
7515; 30 RT 8708, 8713-8714, 8727-8728, 8732, 8734, 8737-8738.)
Appellant has already addressed this evidence at length in
his opening brief. (AOB, pp. 69-70 [dog alert evidence]; p. 73
[addressing blood results from HemDirect test kit].) It is
unnecessary to repeat those arguments at this time, except to
address respondent’s critiques of his arguments.

- 36 -
 With regard to the HemDirect, respondent asserts that
neither defense expert identified any specific instance of the
HemDirect producing a false positive. (RB, p. 76.) Dr. Elizabeth
Johnson did, however, testify that the literature has shown the
HemDirect does not “work well or [doesn’t] work at all on
degraded samples.” (33 RT 9973-9974.) She also explained that
blood degrades quickly in an outdoor environment – with one
study finding “significant degradation” after just four weeks. (33
RT 9773, 9784.) Dr. Johnson did not need to provide the date,
time, and location of any particular false positive in order to make
clear that the HemDirect is unreliable when used to detect blood
allegedly left in a soil specimen some 25 years earlier.
In his opening brief, appellant pointed out that Ruben’s
jury acquitted him of being an accessory after the fact. (34 CT
10171.) Its verdict suggests that the jury had reasonable doubt
whether the soil samples actually contained human blood. If the
samples did contain blood, Ruben’s jury would almost assuredly
have convicted him since the evidence suggested no innocent
explanation for the presence of human blood in the soil.
Respondent argues that the jurors may have acquitted
Ruben because they sympathized with his desire to protect his
son or, alternatively, because they had reasonable doubt he
helped appellant to bury Smart under his deck. (RB, p. 74, citing
People v. Partee (2020) 8 Cal.5th 860, 867-896 (Partee).) Both
explanations seem vanishingly unlikely.
It is difficult to believe that jurors would have acquitted a
man out of sympathy, despite believing he had helped his son
hide the body of a murder victim. And, if Ruben did allow Smart
to be buried under his deck, then he also must have helped
transport her body from appellant’s dorm room to the White
Court home. Appellant had no means to drive there himself, since

- 37 -
he left his own car in Arroyo Grande when he moved to San Luis
Obispo. (13 RT 3667-3668.)
The act of moving the body from the Santa Lucia dorm to
Arroyo Grande would rise far above the type of “passive”
assistance which our state’s high Court has found insufficient for
accessory liability. (Partee, supra, 8 Cal.5th at p. 871.) It, thus,
stands to reason that the jurors acquitted Ruben because they
had reasonable doubt about the HemDirect results and, hence,
reasonable doubt that Smart’s body was hidden underneath
Ruben’s deck. And if Ruben’s jury had such doubts, appellant’s
jury would have likely harbored these same doubts.
It is also unremarkable that police found red, black, and
light-colored fibers underneath Ruben’s deck. (26 RT 7515; 30 RT
8732.) The prosecutor argued that the red and black fibers were
consistent with Smart’s red shoes and black shorts and the
colorless ones were consistent with her gray shirt. (39 RT 11479-
11480; see 4 RT 937-938, 1081.) But the police also found brown
and blue fibers, consistent with none of Smart’s clothing. (26 RT
7515.) That suggests the fibers came from a different source.
Respondent disputes appellant’s contention that the 25-
year delay in prosecution reveals the weakness of the non-
character evidence. (RB, p. 74; see AOB, pp. 68-70.) It was not
until May, 2020 – some 24 years after Smart’s disappearance –
that the uncharged offense evidence first surfaced. (2 CT 469; 10
RT 2871.) Around 11 months later, in April, 2021, the prosecutor
finally filed a criminal complaint. (1 CT 126-127.)
Respondent observes that the uncharged offenses were not
the only new evidence which came to light in the last year before
appellant was charged. (RB, p. 74.) During this same time period,
the investigation also revealed the previously discussed soil
anomalies and blood evidence underneath Ruben’s deck. (RB, p.
74; see 22 RT 6363; 23 RT 6624.) That is true, but it does not

- 38 -
undermine appellant’s point. While not the only new evidence,
the uncharged offense allegations still constituted a key piece of
new evidence which helped convince the prosecution to bring
murder charges they had not previously brought.
Respondent asserts that the failure to bring earlier charges
may have reflected nothing more than “a conservative and
patient prosecutorial agency.” (RB, p. 74.) Perhaps so, but there
was a reason for this “conservative and patient” approach: before
the other accusers came forward, the prosecution had no motive
to explain why appellant would kill Smart. Ro.D. and S.D.’s
testimony filled this evidentiary gap by allowing the prosecution
to allege a sexual motive. By doing so, it also enabled them to
charge the case as not just murder, but first degree murder.
Respondent next dismisses the significance of the jury’s
lengthy deliberations. (RB, p. 75; see AOB, pp. 72-73.) They
assert that harmless error analysis should not focus on the length
of deliberations, but “on the strength of the evidence.” (RB, p. 75.)
Respondent provides no citation for this proposition and the case
law contradicts it.
Harmless error analysis, by its nature, looks to “the effect
of the error on this jury, not some hypothetical jury.” (People v.
Rivas (2013) 214 Cal.App.4th 1410, 1430, fn. 10, original italics.)
To make this assessment, the reviewing court must look for clues
about how this jury viewed the case. That the reviewing court
regards the evidence as strong reveals nothing about how the jury
regarded it. By contrast, the length of deliberations provides an
important clue that the jury viewed the case as close. (See In re
Martin (1987) 44 Cal.3d 1, 51.)
Finally, in arguing that the error was harmless, respondent
ignores two critical points raised in appellant’s opening brief.
First, they fail to address the impact of the prosecution’s heavy
reliance on Ro.D. and S.D.’s testimony throughout closing and

- 39 -
rebuttal arguments. (39 RT 11440-11441, 11490-11497; 41 RT
12096-1209.) For reasons discussed in appellant’s opening brief,
that heavy reliance significantly increased the chances that
jurors would place great weight on that same evidence. (AOB, pp.
70-72; People v. Cruz (1964) 61 Cal.2d 861, 868 (Cruz).)
Second, while respondent makes an extensive harmless
error argument with regard to the substantive murder charge,
they ignore appellant’s alternative claim: that there is a
reasonable probability Ro.D. and S.D.’s testimony affected the
jury’s verdict on the degree of homicide. (AOB, Argument I.H, pp.
74-75.) Respondent addresses this argument in conclusory
fashion, asserting that the non-character evidence “was strong on
both the murder charge and on the allegation that appellant
committed the homicide during the commission or attempted
commission of a rape.” (RB, p. 75.) They do not elaborate on why
the evidence was strong on the felony-murder allegation.
If respondent had elaborated, there was little they could
have said. Absent Ro.D. and S.D.’s testimony, the evidence
provided no basis for inferring that appellant killed Smart in the
commission of either an actual or attempted rape. That left only
one very weak theory of first degree murder: willful, deliberate,
and premeditated murder. (35 CT 10431-10432; see AOB, pp. 89-
90.) The prosecutor seemingly recognized the weakness of this
theory, for he made only passing mention of it during closing
argument. (39 RT 11487.)
In a trial without Ro.D. and S.D.’s testimony, there is a
reasonable probability that one or more jurors would have voted
to acquit appellant of murder. And even if they did not, there is at
least a reasonable probability that one or more jurors would have
rejected the felony-murder allegation and, by so doing, rejected a
verdict of first degree murder. Accordingly, this Court must

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reverse appellant’s murder conviction or reduce the crime to
second degree murder.
III.
The trial court committed reversible
error by allowing Trevor Boelter to
opine that Smart looked like she had
been “roofied” and to repeat hearsay he
had read about in a newspaper article.
The prosecutor theorized that appellant killed Smart in the
commission of a rape or attempted rape. (39 RT 11441, 11490-
11491; 41 RT 12097-12098.) Though no direct evidence supported
this theory, the argument became stronger after the court allowed
Trevor Boelter to testify that Smart’s behavior at the Crandall
Way party reminded him of his own behavior after someone had
“Roofied” his drink. (8 RT 2162-2163.) This testimony lacked
foundation since Boelter was not an expert and did not explain
how he knew his drink had been spiked. Moreover, the trial court
compounded its error, and gave further credence to Boelter’s
claim, by allowing him to testify about a newspaper article on the
common phenomenon of women being “roofied” at college parties.
Respondent argues that appellant has forfeited this
argument, that the argument lacks merit, and that any error is
harmless. Respondent is wrong.
A. Appellant made a timely objection that Boelter’s
opinion testimony lacked adequate foundation.
Respondent argues that, by objecting too late, appellant
forfeited his argument that Boelter lacked foundation to opine on
Smart’s possible roofie usage. (RB, pp. 79-80.)
During the prosecutor’s direct examination, Boelter brought
up the issue of Smart’s possible drug use. He testified that, as the
evening progressed, Smart became “spacey,” as if “tripping on
something.” (8 RT 2115.) Boelter explained, “it didn’t seem like
drunk. It just seemed like, I don’t know, druggie.” (8 RT 2115.) He
then added, “you could say that’s drunk or you could say it’s – she
- 41 -
had drugs. I mean, she just seemed not on her feet, not stable.” (8
RT 2116.)
On cross, defense counsel elicited that Boelter had never
mentioned the possibility of drug use until an interview with
police some 16 years after Smart’s disappearance. (8 RT 2124,
2130-2132, 2135-2136, 2158.) The prosecutor followed up on
redirect by asking Boelter to explain his belief that Smart was on
drugs. (8 RT 2160-2161.) Boelter replied by bringing up the
newspaper article and, later, by referencing his own purported
experience being “roofied.” (8 RT 2161-2163.) Defense counsel
made a series of objections, including an objection that Boelter’s
opinion lacked foundation. (8 RT 2161-2163.)
Respondent’s forfeiture argument contains two parts. They
initially contend that appellant should have objected during
direct examination, when Boelter testified that Smart appeared
intoxicated on something other than alcohol. (RB, pp. 79-80; 8 RT
2115-2116.) In fact, defense counsel had no reason to object at
this point. It is well established that a lay witness may opine on
whether someone appeared to be drunk. (People v. McAlpin (1991)
53 Cal.3d 1289, 1308; People v. Garcia (1972) 27 Cal.App.3d 639,
643.) If a lay witness may give an opinion on whether a person
appeared drunk, it follows that he may give an opinion on
whether a person appeared more than just drunk. In both cases,
the matter is a subject of “common knowledge,” which requires no
specialized training or expertise to weigh in on. (People v.
Chapple (2006) 138 Cal.App.4th 540, 547.)
There is a big difference, however, between testifying that a
person looked “strung out” (People v. Williams (1988) 44 Cal.3d
883, 914) or “on drugs” (People v. Navarette (2003) 30 Cal.4th 458,
493-494 (Navarette)), and testifying about the specific drug the
person had seemingly taken. That is especially true for a drug
like roofies. While the effects of widely used drugs like

- 42 -
methamphetamine or cocaine might potentially be matters of
common knowledge, the same cannot be said of roofies.
When a witness opines that a person not only looked under
the influence, but under the influence of a very specific (and not
widely known) drug, the proponent of this testimony must lay a
foundation that the witness possesses the ability to recognize that
drug’s effects. (Navarette, supra, 30 Cal.4th at pp. 493-494.)
Defense counsel made that objection and he made it immediately
after Boelter related the incident in which he believed someone
had given him roofies. (8 RT 2162-2163.) Counsel had no reason
to object any earlier than this, since Boelter’s previous testimony
spoke only in very general terms – that Smart seemed “druggie,”
as if “tripping on something.” (8 RT 2115.)
Respondent additionally faults defense counsel for not
objecting when Boelter first alluded to his “experience with being
Roofied at a bar.” (RB, p. 81; see 8 RT 2161.) That testimony,
however, was not objectionable in and of itself. The testimony
which lacked foundation was Boelter’s subsequent opinion about
Smart’s condition – which he based on his own supposed
experience with roofies. (8 RT 2162-2163.) Immediately after
Boelter gave that opinion, defense counsel objected that it lacked
foundation. (8 RT 2162-2163.)
Even if defense counsel might have objected a short time
earlier, his failure to do so did not forfeit the issue. The forfeiture
doctrine exists “to encourage a defendant to bring any errors to
the trial court’s attention so the court may correct or avoid the
errors and provide the defendant with a fair trial.” (People v.
Marchand (2002) 98 Cal.App.4th 1056, 1060.) “An objection is
sufficient if it fairly apprises the trial court of the issue it is being
called upon to decide.” (People v. Scott (1978) 21 Cal.3d 284, 290.)
While the defendant’s objection must be contemporaneous,
it need not be immediate. (People v. Pitts (1990) 223 Cal.App.3d

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606, 692-693 (Pitts); People v. Carrillo (2004) 119 Cal.App.4th 94,
101 (Carrillo); People v. Vance (2010) 188 Cal.App.4th 1182,
1198.) To hold otherwise would be to impose a “draconian rule”
which would prevent appellate consideration of meritorious issues
fully considered by the trial court. (Vance, at p. 1198.) As one
court has explained, the forfeiture doctrine must “make[] . . .
allowance for defense counsel who may be a little slow to
appreciate the thrust of the argument” or evidence before
objecting. (Ibid.)
In this case, defense counsel may have held off on objecting
in order to see if the prosecution could establish the foundation
for Boelter’s belief that he had been roofied. (See Pitts, supra, 223
Cal.App.3d at pp. 692-693 [“a lack of contemporaneous objection
is excused where the prosecutor asks questions and defense
counsel assumes that he is prepared to present evidence on the
issue”].) Alternatively, defense counsel may not have immediately
realized how the prosecutor would relate Boelter’s purported
experience with roofies to his beliefs about Smart’s behavior at
the Crandall Way party. (Carrillo, supra, 119 Cal.App.4th at p.
101 [addressing issue on merits where defense counsel objected
after “catch[ing] the prosecutor’s drift and bring[ing] it to the trial
court’s attention”].)
Regardless, defense counsel did bring the foundation issue
to the trial court’s attention soon after Boelter began testifying
about roofies. (8 RT 2163.) The trial court understood the
objection and had an opportunity to rule on it. Had the court
found the objection well taken, it was still in position to cure the
evidentiary error by striking the just-completed testimony on
roofies. To apply the forfeiture doctrine under such circumstances
would “exalt form over substance.” (People v. Partida (2005) 37
Cal.4th 428, 434.) This Court should decline to do so.

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B. The prosecution established no foundation to
support Boelter’s opinion about Smart’s possible
roofie usage.
Respondent argues that the trial court acted within its
discretion in admitting Boelter’s opinion testimony on roofies.
(RB, p. 80.) Respondent emphasizes that the requisite foundation
may arise from the witness’s own personal experience with the
drug and, hence, his knowledge of its effect. (RB, pp. 80-81.)
Appellant does not claim otherwise. But if the witness gives an
opinion about possible drug usage, and claims to do so based on
his personal experience with the drug, he must also establish that
personal experience. The present record leaves no way to tell if
Boelter really had his drink spiked with roofies or if he merely
believed this to be the case. There was no evidence he saw his
drink being spiked, heard about it after the fact, or saw other
people spiking drinks with roofies that same night. Quite
conversely, Boelter denied that he “saw drugs around” on the
night in question. (8 RT 2169.)
Respondent notes that Boelter testified, without objection,
to the fact he had been roofied. (RB, p. 81, citing 8 RT 2161-2162.)
They argue that, once this evidence came in, it established the
foundation for his subsequent opinion that Smart’s behavior and
symptoms resembled his own. (RB, p. 81.) Appellant has already
addressed this forfeiture argument in the previous subsection.
Because the evidence established no foundation for Boelter’s
belief that he was roofied, it also established no foundation for
him to relate that experience to Smart’s behavior at Crandall
Way. The trial court abused its discretion by overruling defense
counsel’s foundation objection.

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C. Boelter’s testimony constituted inadmissible hearsay
insofar as he related what he had read in the school
newspaper.
When the prosecutor initially asked Boelter to explain why
he believed Smart might be on drugs, Boelter replied that he had
read “a number of stories [in the school newspaper] about girls
being Roofied or drunk.” (8 RT 2161.) Defense counsel objected to
the testimony as hearsay. (8 RT 2161.) The trial court overruled
the objection on the ground that Boelter had not “relate[d]
anything specifically from the newspaper.” (8 RT 2161.)
Relying on the same rationale as the trial court, respondent
argues that no error occurred because the prosecutor did not elicit
the contents of any newspaper article. (RB, p. 82.) The argument
is unpersuasive.
A witness need not read an extrajudicial statement into the
record in order to violate the hearsay rule. It is enough that the
witness summarize the statement or convey its substance.
(Pajaro Valley Water Management Agency v. McGrath (2005) 128
Cal.App.4th 1093, 1108; Ocampo v. Vail (9th Cir. 2011) 649 F.3d
1098, 1109-1110.) Boelter did just that – making known that the
newspaper articles pertained to the frequency of drugging-and-
raping incidents at college parties. (8 RT 2161.)
Respondent characterizes Boelter’s reference to the
newspaper articles as “generic.” (RB, p. 82.) They argue that this
testimony did not constitute hearsay since it did not come in for
its truth, but to explain why Boelter believed Smart was not
merely drunk, but on roofies. (RB, pp. 82-83.) The problem with
this argument is that the court imposed no such limitation on the
testimony. The court did not give any limiting instruction and it
did not specify that it had overruled defense counsel’s objection
because the statement was not being offered for its truth. Rather,
the court overruled the objection because it mistakenly believed
that, absent more specific information about what the newspaper
- 46 -
articles said, Boelter’s reference to them did not constitute
hearsay.
D. Boelter’s erroneously admitted testimony was
prejudicial because it helped the prosecution prove a
drugging and raping theory not otherwise shown by
the evidence.
Respondent argues that, even if the trial court abused its
discretion by admitting Boelter’s testimony about roofies, there is
no reasonable probability the evidence impacted the trial’s result.
(RB, pp. 83-84.)
Respondent downplays the importance of Boelter’s opinion
testimony, calling it “equivocal” in that he left open the possibility
that Smart might merely have been very drunk. (RB, p. 84.)
While Boelter left open this possibility, he made clear that he
found the “drugging” theory more likely. (8 RT 2163.) Besides,
respondent’s argument ignores the prosecutor’s closing argument,
which specifically brought up Boelter’s testimony about roofies.
(39 RT 11489.) By using Boelter’s testimony to advance the
inference that Smart was roofied, the prosecutor increased the
likelihood that the jury would do exactly the same. (Cruz, supra,
61 Cal.2d at p. 868.)
Respondent also downplays the importance the drugging
theory played in the prosecutor’s case. They argue that “the
evidence of appellant’s guilt was compelling whether Smart was
heavily under the influence of alcohol, a drug, or both.” (RB, p.
84.) They state that, “Contrary to appellant’s suggestion, a jury
did not need to find that appellant roofied Smart to find that he
murdered her during a rape or attempted rape.” (RB, p. 84.)
Appellant has never suggested that the jury had to find he
drugged Smart in order to convict him of committing a murder
during a rape or attempted rape. In fact, he said just the opposite
in his opening brief – acknowledging that he “did not have to
personally drug Smart in order to commit or attempt a rape.”

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(AOB, p. 64.) At the same time, the prosecution’s case became
significantly easier if the jury believed appellant drugged Smart.
It is difficult to conceive of any reason for giving another
person roofies except to commit a sexual assault. And, if
appellant committed or tried to commit a sexual assault, he
would then have a motive to commit murder – either because
Smart resisted or because he killed her afterwards to prevent her
from going to the police. That would make him guilty of not just
murder, but first degree murder in the commission or attempted
commission of a rape.
Without Boelter’s improper opinion testimony, the
prosecution presented no evidence of any sexual assault against
Smart – and, thus, no evidence that appellant had any motive to
kill her. To be sure, the prosecution presented (erroneously
admitted) evidence that appellant had drugged and raped other
women. But no evidence existed that he had done the same thing
to Smart. Boelter’s testimony provided jurors with the evidence
they needed to accept the prosecutor’s theory that appellant had
drugged Smart. From there, it became an almost inevitable
inference that he also sexually assaulted and killed her.
Finally, for reasons discussed in Arguments II.B and II.D,
supra, at pp. 31-33, 34-41, the evidence of appellant’s guilt was
not nearly as “compelling” as respondent suggests. (RB, p. 84.)
Similarly, the evidence that appellant committed a murder in the
commission of a rape or attempted rape was weak to nonexistent.
In a trial without Boelter’s erroneously admitted testimony, there
is a reasonable probability at least one juror would have voted to
acquit altogether or to convict of only second degree murder. This
Court must reverse or reduce appellant’s conviction.

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 IV.
The prosecutor committed reversible
misconduct by misusing the ball gag
photograph for character purposes.
During a February 5, 2020 search of appellant’s San Pedro
home, police seized a desktop computer. (32 RT 9375-9376.) The
desktop contained videos which the trial court referred to as
“graphic” and “shocking.” (6 Aug. RT 1600; 32 RT 9415-9416,
9425.) The court initially excluded these videos as unduly
prejudicial. (6 Aug. RT 1600-1602.) It later modified its ruling by
admitting Exhibit 458 – a still photograph obtained from one of
the videos. (32 RT 9415-9416, 9424-9426.) The photograph
showed a woman lying on a pillow with a red ball gag in her
mouth. (32 RT 9415-9416, 9425-9426; 4 Aug. CT 1071-1072.)
The trial court admitted Exhibit 458 on the ground that it
corroborated Ro.D. and S.D.’s claims that appellant used a red
ball gag on them. (32 RT 9425-9426.) The court instructed the
jurors that they were to consider the evidence only for that
limited purpose. (32 RT 9416.) Yet, during rebuttal argument, the
prosecutor displayed Exhibit 458 and asked jurors, rhetorically, if
the woman depicted appeared to be “having fun?” (41 RT 12095-
12096.) Defense counsel unsuccessfully moved for mistrial,
arguing that the prosecutor had improperly used Exhibit 458 for
character purposes and to inflame the jurors’ passions. (41 RT
12120-12122, 12124, 12128.)
Respondent argues that the prosecutor did not misuse the
ball gag photograph and that, even if he did, the misconduct was
fleeting and caused appellant no prejudice. Respondent is
mistaken.

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A. The prosecutor committed misconduct by using
Exhibit 458 for character purposes and to inflame
the jurors’ passions.
Respondent argues that the prosecutor did not misuse the
ball gag photograph. (RB, pp. 89-90.) They note that, during his
own closing argument, defense counsel portrayed the prosecutor’s
case as “a bunch of conspiracy theories that aren’t really backed
up by facts.” (39 RT 11498-11499; see RB, p. 87.) Counsel added
that “conspiracy theories are fun” and that it was “human nature”
to try to create or refute them. (39 RT 11499.) But he reminded
jurors that their “job is not to buy into a conspiracy theory one
way or another, it’s to decide whether or not the People have
proven the case with evidence.” (39 RT 11499.)
Respondent argues that the prosecutor’s subsequent
reference to Exhibit 458 was “brief” and constituted a fair
response to defense counsel’s assertion that “conspiracy theories
are fun.” (RB, pp. 89-90.) Respondent finds it significant that the
prosecutor’s rhetorical question about the woman in Exhibit 458
was but one in a series of such questions about whether the
witnesses in this case appeared to be “having fun.” (RB, pp. 87-
88.) For instance, the prosecutor posed the same question about
S.D., Ro.D., Steven Fleming, Margarita Campos, Jennifer Phipps,
and Jennifer Hudson. (RB, pp. 87-88; see 41 RT 12096, 12099.)
Respondent asserts that appellant has “tacitly conced[ed]” the
propriety of this argument by challenging only the comments
about the ball gag photograph. (RB, p. 90.)
Appellant has never contended that the prosecutor
committed misconduct by taking aim at defense counsel’s
characterization of the case as a conspiracy theory. No doubt, the
prosecutor had free rein to argue “that there was no grand
conspiracy among the numerous prosecution witnesses.” (RB, p.
90.) But he did not have free rein to make this point in a way
which violated the trial court’s previous rulings. (People v. Lang
- 50 -
(1989) 49 Cal.3d 991, 1022.) A prosecutor’s improper argument
does not disappear because it was brief and other parts of his
argument were proper.
Respondent argues that the prosecutor’s comments
advanced a “reasonable inference” which was already “plainly
obvious from the photograph itself:” that the woman depicted was
not having fun. (RB, p. 90.) Appellant agrees that this inference
was obvious, but that did not make it permissible. When a
defendant opts not to testify, it also raises an obvious inference
that he must have something to hide. In such cases, the United
States Supreme Court has deemed it especially important that
the prosecutor not do anything to advance this obvious, but
impermissible, inference. (Griffin v. California (1965) 380 U.S.
609, 615.) As the Court has explained, “What the jury may infer,
given no help from the court, is one thing. What it may infer
when the court solemnizes the silence of the accused into
evidence against him is quite another.” (Id. at pp. 614-615.)
Respondent asserts that, by overruling defense counsel’s
objection, the trial court found the prosecutor’s argument did not
violate its ruling about Exhibit 458’s limited admissibility. (RB, p.
90, citing 41 RT 12096, 12128.) The issue, however, is not how the
trial court ruled, but whether it ruled correctly. In this case, it did
not. The court admitted Exhibit 458 for the sole “purpose of
establishing, if it does, that [appellant] possessed a red ball gag.”
(32 RT 9416.) The prosecutor’s comments in closing argument had
nothing to do with appellant’s mere possession of a red ball gag.
Instead, the prosecutor displayed the exhibit and commented on
the violent and disturbing nature of the act it depicted.
Respondent invokes the principle that trial courts have
broad discretion to rule on prosecutorial misconduct claims. (RB,
p. 89, citing People v. Peoples (2016) 62 Cal.4th 718, 792-793.)
Nonetheless, the scope of that discretion “always resides in the

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particular law being applied, i.e., in the legal principles governing
the subject of [the] action.” (People v. Williams (2021) 63
Cal.App.5th 990, 1001, internal quotations omitted.) “Action that
transgresses the confines of the applicable principles of law is
outside the scope of discretion.” (Ibid.)
Without spilling needless ink, the prosecutor used Exhibit
458 in a way which plainly violated the trial court’s earlier ruling.
By doing so, he committed misconduct. And, by overruling
appellant’s claim of prosecutorial misconduct, the trial court
abused its discretion. (See 41 RT 12121-12122, 12126.)
B. The prosecutor’s misconduct constituted reversible
error.
Respondent next argues that, even if the prosecutor
committed misconduct, the error was harmless under Watson,
supra, 46 Cal.2d at p. 836. (RB, at pp. 90-91.) They point out that
the trial court gave both CALCRIM No. 222 and CALCRIM No.
303. (RB, p. 91; 35 CT 10405, 10414.) The former told jurors that
the arguments of counsel do not constitute evidence. (35 CT
10405.) The latter told them that evidence admitted for a limited
purpose may be considered for only that purpose. (35 CT 10414.)
Respondent asks this Court to apply the presumption that jurors
followed these admonitions. (RB, p. 91, citing People v. Seumanu
(2015) 61 Cal.4th 1293, 1336.)
Even if jurors followed CALCRIM No. 222, and understood
that the attorneys’ comments are not evidence, that instruction
did not speak to the prosecutor’s comments in this case. The
prosecutor did not cite to facts not in evidence. He inflamed the
jurors’ passions by taking a photograph already before the jury
and commenting upon the abhorrent nature of the acts that
photograph depicted. Jurors did not have to treat the prosecutor’s
comments as evidence in order to find them persuasive.

- 52 -
 CALCRIM No. 303 also did little to cure the prosecutor’s
misconduct. Jurors are not attorneys and will not necessarily
realize what does and does not constitute a permissible way to
use evidence. Nothing in CALCRIM No. 303 alerted jurors that
the prosecutor’s comments fell into the latter category and must
be disregarded. Quite conversely, by overruling defense counsel’s
objection, the trial court sent the message that the prosecutor had
said nothing improper by commenting on Exhibit 458’s shocking
and disturbing content. (41 RT 12096.) If the trial court allowed
the prosecutor to draw inferences from that shocking and
disturbing content, jurors would quite reasonably have believed
that they could do the same.
In a trial without the prosecutor’s improper comments on
Exhibit 458, there is a reasonable probability that at least one
juror would have acquitted appellant or convicted of only second
degree murder. Accordingly, the misconduct requires reversal or
reduction of appellant’s murder conviction.
V.
Because there was no substantial
evidence that appellant committed any
form of first degree murder, this Court
must reduce his conviction to second
degree murder.
The prosecutor proceeded on two theories of first degree
murder: willful, deliberate, and premeditated murder and felony-
murder in the commission of a rape or attempted rape. (35 CT
10431, 10435-10439.) As no substantial evidence supported either
theory, appellant asks this Court to reduce his conviction from
first degree murder to second.
Respondent makes no attempt to argue that there was
legally sufficient evidence on the theory of willful, deliberate, and
premeditated murder. Instead, they focus their argument on the
felony-murder theory. (RB, pp. 93-94.) Relying heavily on Ro.D.

- 53 -
and S.D.’s testimony that appellant drugged and sexually
assaulted them, respondent argues that appellant’s behavior
toward Smart followed this same pattern. (RB, pp. 93-94.)
Specifically, they cite evidence that appellant had a romantic
interest in Smart and “separated her from other people” when she
was in a “semiconscious” state. (RB, p. 93, citing 3 RT 688-693,
705-706; 4 RT 1045-1057; 6 RT 1664-1676; 7 RT 1907-1928; 8 RT
2110-2112.)
Unlike with Ro.D. and S.D., the prosecution presented no
evidence that appellant and Smart engaged in any sexual activity
or that appellant tried to initiate any. Without this missing
ingredient, the evidence provided no basis for inferring that
appellant did the same thing to Smart which he had done to
Ro.D. and S.D.
Respondent next points to Jennifer Hudson’s testimony
that appellant had once referred to Smart as a “dick tease” and
said he had “buried her” because he was “sick of waiting.” (RB, p.
94; see 26 RT 7558.) As previously discussed, such comments did
not show any actual or attempted sexual activity. Rather, if taken
as true, appellant’s comments suggested that he waited Smart
out in the hopes of engaging in sexual activity with her. (See
Argument II.B, supra, at p. 32.)
In his opening brief, appellant pointed out that, even if
jurors could infer that he made an attempt at sexual activity, the
prosecution presented no evidence he did so forcibly or while
Smart was unconscious. And, since the record sheds no light on
when any attempt at sex took place, there is no way to know if
Smart was still too intoxicated to consent.
Respondent, in a footnote, calls it a reasonable inference
that “just as appellant did not wait for R[o].D. or S.D. to regain
their full consciousness, he did not wait for Smart to do so either.”
(RB, p. 94, fn. 16.) This argument, of course, rests on the premise

- 54 -
that appellant actually engaged in, or tried to engage in, sexual
activity with Smart – though the prosecution presented no
evidence that this ever happened. Besides, Ro.D. and S.D.’s
testimony suggested that appellant had personally drugged them.
Neither woman drank to excess, yet both later found themselves
at appellant’s apartment, naked and semiconscious, with no
memory of how they got there. (17 RT 4819, 4822-4823; 24 RT
6920-6922.) In both cases, appellant had an easy opportunity to
spike the women’s drinks. In Ro.D.’s case, he could have done so
when he went to the kitchen and returned to hand her a glass of
water. (17 RT 4819.) In S.D.’s case, he could have done so when
S.D. and her friend left their drinks behind in the bar and
stepped outside to smoke. (24 RT 6915.)
By contrast, appellant’s interactions with Smart occurred at
a crowded party, affording him no opportunity to spike her drink
even if he had wanted to. (See 4 RT 1008; 13 RT 3674.) Sure
enough, not a single witness testified that they saw appellant
hand Smart a drink or pour something into the drink she already
had. In fact, no witness even testified to seeing Smart leave her
drink unattended.
This case also differed from the uncharged ones in that
there was ample evidence Smart became intoxicated by drinking
too much of her own volition. Numerous witnesses saw her
drinking or described her as drunk. (4 RT 1015-1016, 1067; 8 RT
2138-2139, 2177.) As appellant’s interactions with Smart bore
little in common with what Ro.D. and S.D. described, the jury had
no basis for inferring that the incident with Smart played out in
the same fashion.
The case for rape or attempted rape came down to one
category of prosecution evidence: Ro.D. and S.D.’s testimony that
appellant had drugged and sexually assaulted them. That, in
itself, cannot prove that appellant did the same to Smart. (People

- 55 -
v. Younger (2000) 84 Cal.App.4th 1360, 1382.) As there was no
substantial evidence to show any theory of first degree murder,
this Court must reduce appellant’s conviction to second degree
murder.
VI.
The trial court prejudicially misstated
the mens rea element of attempted rape
of an intoxicated person, precluding
jurors from considering whether
appellant actually believed Smart was
sober enough to consent.
The jury’s simplest path to a first degree murder verdict
was through a felony-murder theory based on attempted rape of
an intoxicated person. To convict on this theory, the jury did not
need to find that appellant used force or fear, that Smart was
unconscious, or that any actual sexual intercourse took place.
They just had to find that appellant tried to have sex with Smart,
that she was too intoxicated to consent, and that he intended she
be too intoxicated to consent. (People v. Braslaw (2015) 233
Cal.App.4th 1239, 1249 (Braslaw).) Unfortunately, the jury
instructions made the path to conviction even easier by
misstating the intent element of attempted rape.
CALCRIM No. 460 defined attempted rape, including its
requirement that the defendant intend to commit a rape. (35 CT
10439.) The instruction then directed jurors to the court’s
separate instructions on rape “[t]o decide whether the defendant
intended to commit rape.” (35 CT 10439.) The problem is, the
instruction on rape of an intoxicated person set forth a very
different mens rea than that required for attempt. (35 CT 10437.)
Whereas attempt requires actual knowledge that the other is too
impaired to consent, the substantive crime requires only that a
reasonable person would have known. (36 CT 10437.) By
incorporating the elements of the substantive crime, CALCRIM
No. 460 mistakenly imported its negligence standard.
- 56 -
 To make matters worse, the court gave a version of
CALCRIM No. 625 which erroneously precluded jurors from
considering the effect of appellant’s own intoxication on his
knowledge of Smart’s impairment. (35 CT 10434.) This error only
reinforced the one in CALCRIM No. 460 by preventing jurors
from considering the very evidence which might have negated the
intent element of attempted rape of an intoxicated person.
Respondent argues that appellant has forfeited these
issues, that there is no reasonable likelihood the jury construed
the instructions to require only constructive knowledge for
attempted rape, and that any error was harmless. Respondent’s
contentions lack merit and should be rejected.
A. The trial court had a sua sponte duty to properly
instruct on the elements of attempted rape and not
to affirmatively misinstruct on voluntary
intoxication.
Respondent argues that appellant has forfeited his
challenges to both CALCRIM No. 460 and CALCRIM No. 625.
(RB, pp. 97, 101.) Contrary to their contention, forfeiture
principles have no application to either instruction.
1. Because CALCRIM No. 460 misstated the
elements of attempted rape of an intoxicated
person, appellant may challenge the instruction
for the first time on appeal.
In a subheading, respondent asserts that “appellant is
precluded from” challenging CALCRIM No. 460 for the first time
on appeal. (RB, p. 96.) Respondent does little to elaborate on this
contention in the ensuing argument – except to say that, in the
absence of a request, “[a] trial court has no sua sponte duty to
revise or improve upon an accurate statement of law.” (RB, p. 97,
citing People v. Jackson (2016) 1 Cal.5th 269, 336; People v.
Simon (2016) 1 Cal.5th 98, 143.)
Respondent’s argument would be sound if CALCRIM No.
460 contained “an accurate statement of law.” (RB, p. 97.)

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Appellant’s entire point, however, is that it did not. An accurate
statement of law would make clear that attempted rape by an
intoxicated person requires a specific intent to have sex with a
person the defendant knows to be “incapacitated by intoxication.”
(Braslaw, supra, 233 Cal.App.4th at p. 1249.) Instead, CALCRIM
No. 460’s intent element erroneously imported the “reasonable
person” standard used for actual rape of an intoxicated person.
Because the instruction misstated the elements of attempted rape
of an intoxicated person, the issue may be raised for the first time
on appeal. (People v. Hillhouse (2002) 27 Cal.4th 469, 503.)
Respondent asserts that, in People v. Dillon (2009) 174
Cal.App.4th 1367 (Dillon) – a case relied on by appellant – the
Court of Appeal found the defendant had forfeited an argument
similar to the one made here. (RB, p. 100.) But the forfeiture
finding came only after the court had rejected the defendant’s
argument that the instructions omitted an essential offense
element. (Dillon, at pp. 1378-1380.) Having found no omitted
element, the Court of Appeal then treated the defense’s argument
as a request for additional clarifying language – an issue which it
deemed forfeited. (Id. at p. 1380; see generally People v. Kaihea
(2021) 70 Cal.App.5th 257, 265 [“When an instruction as given is
correct in law, it is incumbent on defendant to request clarifying
language, and his failure to do so forfeits the issue”].)
Unlike the instructions in Dillon, the ones in this case did
misstate and omit a key aspect of the specific intent element of
attempt. The reason the court found no omitted offense element
in Dillon was because the target crime already included the “lack
of consent” element that the assault instruction omitted. (Dillon,
supra, 174 Cal.App.4th at pp. 1377, 1379.) As a result, a juror
who read the two instructions in combination would have
understood that the intent required for an assault included the
intent to commit a nonconsensual penetration. (Id. at p. 1379.)

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The same cannot be said in this case since the instruction on rape
of an intoxicated person set forth a constructive knowledge
standard, whereas attempted rape of an intoxicated person
requires actual knowledge and intent.
Because the instructions in this case omitted and misstated
the intent element of attempted rape, whereas the ones in Dillon
did not, the forfeiture finding in Dillon has no application to this
case.
2. CALCRIM No. 625 may be challenged on appeal
because it affirmatively misstated the law on the
proper use of voluntary intoxication evidence.
Respondent argues that appellant has forfeited any
challenge to CALCRIM No. 625 because he specifically requested
that instruction and the trial court gave it “in the exact format
that appellant requested.” (RB, p. 101, citing 38 RT 11155.)
Respondent overstates what the record actually shows.
Appellant did submit a written list of requested jury instructions,
as well as an amended list a few days later. (32 CT 9377-9379,
9440-9442.) He included CALCRIM No. 625 on both lists. (32 CT
9379, 9442.) However, defense counsel did not attach a proposed
version of the instruction, as he did with other requested
instructions. (See 32 CT 9380-9392, 9443-9455.) When the topic
later came up in court, the court itself did all the talking –
stating, “We will move on to 625, which is Voluntary Intoxication.
And all counsel requested this. I gave the instruction.” (38 RT
11155.) There was no in-court discussion about the “format” of the
instruction or the specific ways for which the jury could use the
voluntary intoxication evidence.
The form version of CALCRIM No. 625 specifies that the
jury may consider voluntary intoxication on the issues of
premeditation, intent to kill, and unconsciousness – the three
issues for which the court allowed it to be used in this case. (35
CT 10434.) After listing those three specific issues, the form
- 59 -
instruction includes a bracketed statement which says, “or the
defendant <insert other specific intent required in a
homicide charge or other charged offense>.” (CALCRIM No. 625,
original italics.) In this case, no on-the-record discussion took
place about what those other specific intents might be.
In any event, the California Supreme Court has stated that,
even where the trial court has no sua sponte duty to instruct, it
has a duty not to misstate the law when it does instruct. (People
v. Castillo (1997) 16 Cal.4th 1009, 1015 (Castillo).) If it does
misstate the law, the issue may be raised on appeal even if
defense counsel did not object. (Ibid.)
As it happens, Castillo involved the same instructional
error at issue here: a misinstruction on the permissible uses of
voluntary intoxication evidence. (Castillo, supra, 16 Cal.4th at pp.
1014-1015.) The instruction in Castillo told jurors they could
“consider defendant’s voluntary intoxication in determining
whether he had the specific intent or mental state required for
the charged crime.” (Id. at p. 1014.) The Court of Appeal found
the instruction defective because, by failing to specify that
premeditation was a “mental state,” it erroneously precluded
jurors from considering the defendant’s intoxication on this issue.
(Id. at pp. 1014-1015.) Since defense counsel had not requested
these changes, the Court of Appeal treated the issue as one
involving ineffective assistance of counsel. (Id. at p. 1015.)
The California Supreme Court ultimately disagreed with
the Court of Appeal’s view that the instruction prevented jurors
from considering intoxication on the issue of premeditation.
(Castillo, supra, 16 Cal.4th at pp. 1015-1016.) But the Court
acknowledged that, if the instructions had suffered from this
flaw, “the issue would not solely be one of ineffective assistance of
counsel;” it would also “implicate the court’s duty to give legally
correct instructions.” (Id. at p. 1015.)

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 Appellant contends that CALCRIM No. 625 improperly
prevented jurors from considering the voluntary intoxication
evidence on the issue of his specific intent to commit rape of an
intoxicated person. Should this Court agree, then the error is of
the exact same type discussed in Castillo. It should, therefore, be
cognizable on appeal as a misstatement of the applicable law.
B. The reasonable likelihood standard does not apply
for instructions which affirmatively misstate the law.
Respondent next argues that claims of instructional error
are subject to the “reasonable likelihood” standard. (RB, pp. 96-
97.) Under that standard, reviewing courts do not view the
challenged instruction in “artificial isolation,” but must consider
it “in the context of the instructions as a whole and the trial
record,” including the arguments of counsel. (People v. Lemcke
(2021) 11 Cal.5th 644 655, internal quotations omitted; see also
People v. Stone (2008) 160 Cal.App.4th 323, 331.) To find error,
the appellate court must find “a reasonable likelihood the jury
applied the instruction in an impermissible manner.” (People v.
Houston (2012) 54 Cal.4th 1186, 1229.)
The reasonable likelihood standard is subject to a caveat: it
only applies to ambiguous instructions. (Estelle, supra, 502 U.S.
at p. 72; Boyde v. California (1999) 494 U.S. 370, 380.) It does not
apply “when the disputed instruction is erroneous on its face.”
(People v. Lewelling (2017) 16 Cal.App.5th 276, 296, quoting Ho v.
Carey (9th Cir. 2003) 332 F.3d 587, 592; Wade v. Calderon (9th
Cir. 1994) 29 F.3d 1312, 1321.)
Both CALCRIM Nos. 460 and 625 were erroneous on their
face. The latter was erroneous because evidence of a defendant’s
voluntary intoxication is admissible to show he lacked the specific
intent required to commit an attempted rape of an intoxicated
person. (Braslaw, supra, 233 Cal.App.4th at p. 1250.) Yet,

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CALCRIM No. 625 expressly prohibited jurors from considering
appellant’s intoxication for this purpose. (35 CT 10434.)
CALCRIM No. 460 was not facially erroneous in and of
itself, but it became facially erroneous when read in combination
with CALCRIM No. 1002 – one of the three rape instructions it
expressly incorporated. (35 CT 10439.) By incorporating that
instruction, it incorporated the wrong mens rea – one based on a
reasonable person standard rather than actual knowledge. (35 CT
10437.) An instruction which sets forth the wrong mens rea is not
merely ambiguous, but affirmatively wrong. As a result, the
reasonable likelihood standard does not apply.
C. Even if the reasonable likelihood standard applies,
appellant has demonstrated instructional error
under that standard.
Even if this Court subjects CALCRIM Nos. 460, 1002, and
625 to the reasonable likelihood test, appellant has demonstrated
error under that test.
Respondent argues that CALCRIM No. 460 merely tracks
the statutory definition of attempt – set forth in Penal Code
section 21a. (RB, p. 98.) Under that definition, attempt “consists
of two elements: a specific intent to commit the crime, and a
direct but ineffectual act done toward its commission.” (Pen.
Code, § 21a.) Since CALCRIM No. 460 sets forth these same two
elements, respondent characterizes it as a correct statement of
the law. (RB, p. 98.)
If CALCRIM No. 460 ended after setting forth attempt’s
two elements, the instruction would be unobjectionable. Instead,
it continues – referring jurors to the substantive rape instructions
“[t]o decide whether the defendant intended to commit” that
crime. (35 CT 10439.) Respondent argues that this part of the
instruction just informed jurors that the intent to commit rape
could be satisfied by an attempt to commit any of the three types

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of rape described in other instructions. (RB, p. 98.) This argument
ignores CALCRIM No. 460’s plain language.
CALCRIM No. 460 did not say, “An attempt to commit rape
may be satisfied by an attempt to commit any type of rape
described in this court’s other instructions.” Likewise, it did not
say, “For the definition of rape, please refer to the separate
instructions that I will give you on that crime.” It said, “To
decide whether the defendant intended to commit rape,
please refer to the separate instructions that I will give you on
that crime.” (35 CT 10439, emphasis added.) Such language
conveyed that the intent required to commit attempted rape was
the intent set forth in the other rape instructions. A juror who
read this instruction, in combination with CALCRIM No. 1002’s
instruction on rape of an intoxicated person, would understand
that a defendant intends to commit that crime if he intends to
have sex with a person who he reasonably should know is too
intoxicated to consent. (35 CT 10437, 10439.)
Respondent resists this reading of the instructions, arguing
that it would allow CALCRIM No. 1002’s “reasonably should have
known” standard to “override” CALCRIM No. 460’s requirement
that the defendant “intended to commit rape.” (RB, p. 98.) The
problem with this argument is that it presupposes the phrase
“intended to commit rape” has a simple and self-evident meaning.
In the case of rape of an intoxicated person, it does not. A lay
juror would likely understand that the intent required for this
crime includes an intent to have sex with someone who is, in fact,
too intoxicated to consent. But it is far from obvious that the
intent element additionally encompasses the fact of the other’s
intoxication. And it becomes even less obvious when the attempt
instruction specifically refers jurors to a different instruction,
which carries only a “reasonably should have known” standard.

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 Respondent argues that, if this Court accepts appellant’s
argument, it would “create error . . . in every case for which the
offense attempted requires a general criminal intent or even no
intent at all.” (RB, p. 100.) Not so.
Appellant does not take issue with CALCRIM No. 460
because it incorporated the instructions on a general intent crime.
He takes issue with CALCRIM No. 460 because it incorporated
the instructions on a crime which has no intent requirement at
all. Rather, rape of an intoxicated person requires nothing more
than negligence about the other person’s intoxicated state.
The analysis in Dillon is instructive, since the case involved
the very scenario which respondent brings up: a specific intent
crime (assault with intent to commit forcible sexual penetration)
whose instruction incorporated the elements of a general intent
crime. (Dillon, supra, 174 Cal.App.4th at pp. 1378-1380.) In
finding no error, the court reasoned that the assault instruction
would reasonably be understood to incorporate all elements set
forth in the instruction it referenced. (Id. at pp. 1378-1380.) In
other words, if an attempt instruction directs jurors to the forcible
rape instruction “[t]o decide whether the defendant intended to
commit rape,” jurors would understand that the intent must exist
as to each element set forth in the forcible rape instruction. If
jurors understand this, then there has been no misinstruction on
the mens rea element of attempt.
Dillon’s logic breaks down, however, when the instruction
on the substantive crime does not merely set forth a series of acts
but also its own mens rea based on a negligence standard. A
defendant can logically intend all the elements required to
commit a general intent crime like forcible rape. But he cannot
logically intend to harbor a specific mens rea – least of all, a mens
rea which, itself, includes no requirement of intent. Faced with
two instructions which set forth very different mens rea

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requirements, the jurors would have been forced to choose one or
the other. Logically, it made more sense to choose the negligence
standard set forth in CALCRIM No. 1002, since CALCRIM No.
460 specifically pointed them to that instruction to decide
whether appellant intended to commit rape. (35 CT 10439.)
Respondent asserts that the prosecution did not rely on the
negligence theory of attempted rape of an intoxicated person.
(RB, p. 99.) For instance, the prosecution called Ro.D. and S.D. to
testify that appellant “roofied and raped” them. (RB, p. 99.) Later,
during closing argument, the prosecutor portrayed appellant as a
“serial drugger,” who knew full well of Smart’s impairment. (RB,
p. 99, citing 39 RT 11494; 41 RT 12098.) Respondent contends
that, by specifically emphasizing appellant’s knowledge of
Smart’s intoxication, the prosecutor reduced any chance that the
jury would regard a negligence standard as sufficient. (RB, p. 99.)
While the prosecutor argued that appellant knew of Smart’s
intoxication, he never explained that such knowledge was
necessary in order to convict of felony-murder based on attempted
rape of an intoxicated person. He also did not make clear that the
“reasonably should have known” standard set forth in CALCRIM
No. 1002 only applied to rape of an intoxicated person, but not
attempted rape. Far from disavowing the “reasonably should have
known” standard for attempted rape, the prosecutor actually read
the standard into the record during closing argument – and did so
while discussing the elements of attempted rape of an intoxicated
person. (39 RT 11488-11489.) As a result, jurors had no reason to
believe this standard did not apply to attempt.
Finally, in asserting there was no reasonable likelihood of
jury confusion, the prosecutor ignores the compounding effect of
the court’s misinstruction on voluntary intoxication. If the court
had properly instructed on the knowledge element of attempted
rape of an intoxicated person, jurors would have understood the

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inquiry was a subjective one which necessarily compelled them to
consider the effect of appellant’s own intoxication. Instead, the
court instructed jurors that the standard was an objective one,
based on what appellant “reasonably should have known.” (35 CT
10437.) The trial court only reinforced that message by
precluding jurors from considering appellant’s own subjective
intoxication on the attempt count.
As shown, there is a reasonable likelihood the jurors
construed the instructions to mean that a defendant commits
attempted rape of an intoxicated person if he attempts to have
sex with a person he reasonably should have known to be too
impaired to consent. By replacing attempt’s actual knowledge and
specific intent requirement with a negligence standard, the trial
court misinstructed on the essential offense elements.
D. Voluntary intoxication evidence is admissible to
show that appellant lacked the specific intent
required for attempted rape.
Respondent argues that the trial court correctly instructed
on the permissible uses of voluntary intoxication evidence. (RB, p.
101.) In this regard, they point to Penal Code section 29.4,
subdivision (b), which states that voluntary intoxication evidence
“is admissible solely on the issue of whether or not the defendant
actually formed a required specific intent.” (RB, p. 101.) The
statute prohibits “the admission of voluntary intoxication
evidence on the issue of whether or not the defendant met the
knowledge requirement of a general intent crime.” (RB, p. 101,
citing People v. Suazo (2023) 95 Cal.App.5th 681, 702-703; People
v. Berg (2018) 23 Cal.App.5th 959, 969.)
Respondent’s point is neither here nor there, since
attempted rape of an intoxicated person is not a general intent
crime. The crime requires both a specific intent to have sex with a
person and to do so while she is too intoxicated to consent.
(Braslaw, supra, 233 Cal.App.4th at p. 1249.) When appellant
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speaks of the crime’s knowledge “element,” he is simply making
shorthand reference to the requirement that a defendant
specifically intend to have sex with someone too intoxicated to
consent. A defendant cannot very well possess this intent if he
does not know of the other’s intoxication in the first place.
Respondent next argues that the trial court had no need to
relate voluntary intoxication to the specific intent element of
attempt because the record contained no substantial evidence
that appellant’s intoxication rendered him unable to discern
Smart’s impairment. (RB, p. 101.) By that logic, the court should
not have instructed on voluntary intoxication at all, since
appellant also presented no specific evidence that his intoxication
rendered him unconscious or prevented him from premeditating
or forming the intent to kill. Yet, the trial court still allowed
jurors to use the voluntary intoxication evidence on these issues.
By allowing jurors to consider voluntary intoxication on
other issues related to specific intent, the trial court recognized
that alcohol’s effects – including impaired judgment – are a
matter of “common knowledge.” (People v. Stiteley (2005) 35
Cal.4th 514, 550; see Rice v. Alcholic Beverage Control Appeals
Board (1981) 118 Cal.App.3d 30, 37 [“[c]ommon knowledge” that
alcohol impairs judgment].) Unlike with other substances, a
defendant need not present specific evidence that his judgment
was clouded by alcohol in order to receive an instruction on
voluntary intoxication. He need only testify that he was drunk.
(See People v. Cox (1990) 221 Cal.App.3d 980, 989 [“Where the
voluntary intoxication instruction is sought in a situation not
involving alcohol . . . it must be supported by evidence advising
the manner in which ingestion of the nonalcoholic drug affects the
mind of the user”].)
Here, appellant told police he drank to excess, both before
and during the Crandall Way party. (35 CT 10366, 10379-10381;

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13 RT 3680.) In fact, he drank so much that he threw up soon
after returning to Santa Lucia Hall. (35 CT 10366; 13 RT 3623.)
That, alone, gave rise to an inference that his perception would
have been clouded.
As it turned out, appellant did present specific evidence
that he mistook Smart’s level of impairment. In one interview, he
told police that Smart was “walking just fine” on the way home
from the party. (35 CT 10389.) In another, he speculated that she
may have walked to Taco Bell with a friend, since the restaurant
stayed open all night. (35 CT 10320.) When asked by the police if
she could have walked that far in her state, he answered in the
affirmative – stating, “I don’t remember her stumbling or
anything.” (35 CT 10321.)
Appellant’s statements suggested that he did not perceive
Smart to be severely intoxicated – despite the objective signs of
impairment described by other witnesses in the case. The jury
could reasonably have inferred that appellant’s own alcohol
intake was the reason he mistook Smart’s level of intoxication.
The trial court erred by precluding jurors from considering
appellant’s intoxication on this issue.
E. The instructional errors require reduction of
appellant’s conviction from first degree murder to
second.
Respondent argues that, if the trial court did misinstruct,
the applicable harmless error test is the “reasonable probability”
standard for state law errors. (RB, p. 102; Watson, supra, 46
Cal.2d at p. 836.) Their argument treats the attempted rape
instructions as ambiguous and conflicting, but not an actual
misstatement of the offense elements. (RB, p. 102; see People v.
Beltran (2015) 56 Cal.4th 935, 955 [ambiguous instructions that
do not violate the federal constitution are subject to Watson].)
For reasons previously discussed, the instructions were not
merely ambiguous, but wrong on their face. (See Argument VI.B,
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supra, pp. 61-62.) Ultimately, however, it does not matter. Even if
they were just ambiguous, that ambiguity created a reasonable
likelihood that the jury would believe “constructive knowledge”
sufficient to satisfy attempt’s specific intent requirement. (See
Argument VI.C, supra, pp. 62-66.) When an ambiguity produces a
misinstruction on the elements, it implicates due process and is
subject to Chapman. (Neder v. United States (1999) 527 U.S. 1, 8-
10, 15 (Neder).)
Respondent, likewise, treats the erroneous voluntary
intoxication instruction as a failure to give a pinpoint instruction
– an error of state law. (RB, p. 102; People v. Pearson (2012) 53
Cal.4th 306, 325 [applying “reasonable probability” test for failure
to instruct on voluntary intoxication].) That characterization
would be correct if the court had not instructed on voluntary
intoxication at all. But it affirmatively misinstructed on the issue
– and did so in a way that deprived appellant of a key defense.
That, too, violated due process. (See AOB, Argument VI.D, p. 95.)
And, even if it did not, the erroneous voluntary intoxication
instruction exacerbated the prejudicial effect of the erroneous
instruction on attempt’s specific intent element. Since the latter
error implicated due process, Chapman applies when considering
the two errors’ combined effect. (People v. Woods (2006) 146
Cal.App.4th 106, 117.)
Respondent argues that the instructional errors were
harmless because the jury could not reasonably have concluded
that appellant’s own intoxication caused him to misjudge Smart’s
level of impairment, which “was plain to all.” (RB, pp. 102-103.)
Respondent even disputes appellant’s “self-serving” claim that he
drank to excess. (RB, p. 102.)
There was nothing “self-serving” about appellant’s claim
that he drank too much. (RB, p. 102.) The police, not appellant,
brought up the subject of alcohol – asking appellant how much he

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had to drink that night. (35 CT 10366.) Appellant just answered
the question. At the time, he had no reason to suspect that his
intoxication had any legal significance to murder charges which
had not been filed or attempted rape allegations which the police
never even hinted at.
While Smart’s impairment may have been “plain” to others
at the party, that did not make it plain to appellant. The evidence
showed that appellant did not know Smart had been passed out
in the neighbor’s lawn. When the police mentioned this to him
during one of his interviews, appellant responded with surprise,
asking, “She was passed out on the neighbor’s lawn?” (35 CT
10345.) Elsewhere in this brief, appellant took note of his own
equivocal statements about Smart’s level of impairment. (35 CT
10320-10321, 10389.)
Respondent speculates that, if appellant were as drunk as
he claimed, he could not have physically supported Smart during
the walk home. (RB, p. 102.) The argument constitutes sheer
conjecture. Alcohol may affect different people in different ways,
and it may alter perception well before it causes a loss of physical
coordination. Appellant could have been drunk enough to have
his perceptions badly altered, but still able to walk home and
assist Smart in doing so.
Citing Ro.D. and S.D.’s testimony about being “roofied and
raped,” respondent calls it “inconceivable” that jurors would have
found he did not know Smart was too impaired for consensual
sex. (RB, p. 103.) But those incidents had minimal relevance,
since the prosecution presented no evidence that appellant
“roofied” Smart. Furthermore, both incidents happened more
than a decade after Smart’s 1996 disappearance. (See 17 RT 4813
[incident with Ro.D. happened in 2008]; 24 RT 6912-6913
[incident with S.D. happened in 2011].) They, therefore, provided

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little insight into appellant’s state of mind on one specific night
some 12 and 15 years earlier.
By emphasizing the supposed strength of the evidence,
respondent focuses on the wrong question. When the trial court
misinstructs on an offense element, harmless error analysis asks
whether “the record contains evidence that could rationally lead
to a contrary finding with respect to the [misstated] element.”
(Neder, supra, 527 U.S. at p. 19.) If the record contains such
evidence, the error requires reversal – even if the reviewing court
believes the evidence of guilt to be strong.
Here, the evidence showed that appellant drank to the
point of intoxication. Alcohol impairs perception and appellant’s
own statements suggested he may well have failed to discern the
level of Smart’s intoxication. Under such circumstances, the
instructional errors cannot be found harmless beyond a
reasonable doubt. As a result of the errors, this Court must
reduce appellant’s conviction to second degree murder or remand
for a retrial on first degree murder.
VII.
The errors discussed in Arguments II, III,
IV, and VI caused appellant cumulative
prejudice and require reversal of his
conviction or reduction to second degree
murder.
In his opening brief, appellant argued that the errors raised
in Arguments II, III, IV, and VI caused him cumulative prejudice
even if no one error was prejudicial in its own right. (AOB,
Argument VII, pp. 99-100.) Respondent makes no substantive
counter-argument – except to state that appellant received a fair
trial and that, since no errors occurred, cumulative prejudice does
not apply. (RB, p. 103.) Appellant has shown otherwise – both in
his previous arguments and in the cumulative prejudice
discussion in his opening brief. Because the cumulative effect of

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the court’s errors cannot be found harmless beyond a reasonable
doubt, this Court must reverse or reduce appellant’s murder
conviction.
CONCLUSION
For all of the foregoing reasons, and the reasons set forth in
appellant’s opening brief, appellant respectfully requests that this
Court reverse or reduce his murder conviction and remand his
case for retrial.
DATED: July 7, 2025
Respectfully submitted,

/s/ Solomon Wollack

SOLOMON WOLLACK
Attorney for Appellant
Paul Ruben Flores

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 WORD COUNT CERTIFICATE
(Cal. Rules of Court, rule 8.360(b)(1))
I, Solomon Wollack, counsel for appellant Paul Ruben
Flores, certify pursuant to the California Rules of Court, that the
word count for this document is 17,768 words, excluding the
tables and this certificate. This document was prepared in
Wordperfect 21, and this is the word count generated by the
program for this document.
I certify under penalty of perjury under the laws of the
State of California that the foregoing is true and correct.
Executed at Pleasant Hill, California on this 7th day of July,
2025.

By: /s/ Solomon Wollack

Solomon Wollack

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 PROOF OF SERVICE
I, SOLOMON WOLLACK, declare that I am at least 18 years old, an
active member of the State Bar of California, and not a party to this case. My
business address is P.O. Box 23933, Pleasant Hill, California, 94523. My e-
mail address is sol@wollack.com. On the date shown below, I served the
within:
APPELLANT’S REPLY BRIEF

to the parties on the attached service list by:

X BY ELECTRONIC TRANSMISSION – Transmitting a PDF version
of this document by electronic mail to the parties identified below, using the
e-mail addresses indicated:

Mr. Michael C. Keller Mr. Jonathan Grossman

Deputy Attorney General Sixth District Appellate Program
Los Angeles, CA 90013 San Jose, CA 95113
docketinglaawt@doj.ca.gov servesdap@sdap.org
Michael.Keller@doj.ca.gov (Appellant)
(Respondent)

California Appellate Project – Mr. Dan Dow

Los Angeles Mr. Eric Dobroth
Los Angeles, CA 90071 Ms. Rebecca Cripe
Capdocs@lacap.com Office of the District Attorney
San Luis Obispo County
San Luis Obispo, CA 93408
da.contactus@co.slo.ca.us
edobroth@co.slo.ca.us
rcripe@co.slo.ca.us

X BY MAIL – Placing a true copy of the foregoing, enclosed in a sealed

envelope with postage thereon fully prepaid, in the United States mail at
Pleasant Hill, California, addressed to:
Clerk of the Superior Court Mr. Paul Flores
Monterey County (Defendant/Appellant)
Attn: The Hon. Jennifer O’Keefe
240 Church Street
Salinas, CA 93901

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 I declare under penalty of perjury the foregoing is true and correct.
Executed this 7th day of July, 2025 at Pleasant Hill, California.

/s/ Solomon Wollack

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