PEOPLE v. PEREZAppellant’s Additional Authorities LetterCal.October 31, 2017Supreme Court of California Supreme Court of California Jorge FE. Navarrete, Court Administrator and Clerk Jorge E. Navarrete, Court Administrator and Clerk Electronically RECEIVED on 10/31/2017 at 9.45.32 AM Electronically FILED on 10/31/2017 by April Boelk, Deputy Clerk A. RICHARD ELLIS Also admittedin: Attorney at Law SUPRFE Colorado 75 Magee Ave. ME COURTCOPY Florida Mill Valley, CA 94941 Hawaii Tel.: (415) 389-6771 Missouri FAX:(415) 389-0251 Nebraska a.r.ellis@att.net Nevada Texas District of Columbia October 30, 2017 Jorge E. Navarrete Court Administrator Supreme Court Clerk’s Office 350 McAllister Street San Francisco, CA 94102-4797 Re: 8104144, People v. Perez Jr. Oral Argument: Tuesday, November7, 2017 (1:30 p.m.) Additional Authorities Letter (Amended Declaration of Service) Dear Mr. Navarrete: This letter is a citation to additional authorities not mentionedin appellant’s briefor decided after the submission of the briefs in this matter. ArgumentI: Thetrial court’s system of group voirdire violated appellant’s right to due processanda fair trial: People v. Cash (2002) 28 Cal.4th 703, 721-722 (voir dire mustnotbe so abstractthatit fails to identifyjurors whose death penalty views would preventor substantially tmpairtheir performance as jurors; the limitation on voir dire was prejudicial). ArgumentII: Lead defense counsel had a conflict of interest, as the trial judge had found him ineffective in a case pending in the Court of Appeals: In People v. Doolin (2009) 45 Cal.4th 390, 420-421, this Court abandoned the previous standard that a conflict was shownif “informed speculation” could showthat there wasa potential conflict, overturning People v. Mroczko (1983) 35 Cal. 3d 86, 105 (relied upon by appellant (AOB at 101-102; Reply at 19). Now an actual conflict must be shown under the federal standard of Mickens v. Taylor (2002) 535 U.S. 162 and Strickland v.Washington (1984) 466 U.S. 668, 692, whichis that the conflict existed and the actual conflict affected the lawyer’s performance. Hence, appellant abandonsthe “informed speculation” arguments. + SGATH PENALTY ArgumentIII: Trial errorfor failureofthe trial judge to disqualify himself as a result of commentsthat indicated he could not be impartial: Williams v. Pennsylvania (2016) 136 S. Ct. 1899 (Supreme Court’s precedents set an objective standard that requires recusal whenthelikelihood ofbias on the part of the judge “is too high to be constitutionally tolerable,” citing Caperton v. A.T. Massey Coal Co. (2009) 556 U.S. 868, 872; People v. Almanza (2015) 233 Cal.App.4th 990, 998-1007 (conflict was established when defense counsel was underthreat of prosecution; no prejudice found); Harris v. Superior Court (2014) 225 Cal.App.4th 1129, 1134-1149 (prosecution of defense attorney in separate matter created an actual conflict of interest at the preliminary hearing; the threat that the attorney’s conduct might be affected gives rise to an actualconflict, dismissal of information required without affirmative showingofprejudice). Argument VII: Appellant’s rights were violated whenthetrial court removed a sworn and sitting juror during the guilt phase: Shanks v. Dept. ofTransportation (2017) 9 Cal.App.5th 543, 549-550 (for dismissal ofjuror, juror’s inability to perform as juror must appearin the record as a demonstrablereality, a higher level of scrutiny than the typical “substantial evidence”); People v. Barnwell (2007) 41 Cal.4th 1038, 1052 (same); Martinez v. Illinois (2014) 134 S. Ct. 2070, 2071-2072 (“our cases have repeatedly stated the bright-line rule that jeopardy attaches whenthe jury is empaneled and sworn”). Argument XVII: Trial courterror in allowing inadmissible hearsay testimony from the pathologist who wasnot present at the autopsy: People v. Perez (Cal. App.4, Oct. 25, 2017) 2017 WL 4803952 (People v. Dungo (2012) 55 Cal.4th 608, amongothercases, did not anticipate the distinction that People v. Sanchez (2016) 63 Cal.4th 665, drew between case-specific and non-case-specific hearsay; objection to case-specific gang expert testimony would have been meritorious); Merolillo v. Yates, 663 F.3d 444, 453-459 (9" Cir. 2011) (admission of non-testifying autopsy pathologist’s opinion violated Confrontation Clause and wasprejudicial); U.S. v. Ignasiak, Jr., 667 F.3d 1217 (11" Cir. 2012) (autopsy reports of defendant’s former patients were testimonial; admission violated Confrontation Clause and wasprejudicial); People v. Trujeque (2015) 61 Cal.4th 227, 275-276 (issue not forfeited by failure to object at trial to testimony from pathologist who did not perform autopsy); People v. Harris (2013) 57 Cal.4th 804, 839-840 (same); People v. Hill (2011) 191 Cal.App.4th 1104, 1128-1137 (criticizing People v. Gardeley (1996) 14 Cal.4th 605,619,rule in effect at appellant’s trial, that hearsay statementstestified to by an expert as basis for his or her expert opinion are not offered for the truth of the matter asserted. By copyofthis letter, I am forwarding a copy of the same to the Office of the Attorney General, the Contra Costa County District Attorney, thetrial court, appellant, and the California Appellate Project assisting attorney. Thank you for your kind assistance with this matter. Yours sincerely, /s/ A. Richard Ellis A. Richard Ellis Attorney for Appellant DECLARATION OF SERVICE (AMENDED) I, A. RICHARD ELLIS,hereby declare that I am a citizen of the United States, over the age of eighteen, an active memberof the State Bar of California, and not a party to the within action. Mybusiness address is 75 Magee Ave, Mill Valley, California 94941. On October30, 2017 I served the within ADDITIONAL AUTHORITIES LETTER on the interested parties in said actionlisted below,by e-filing it through the Court’s electronicfiling system orby placing a true and correct copy of the samein a sealed envelope, with 1° class postage affixed thereto, and placing the same in the United States Mail, addressed as follows: John H. Deist Deputy Attorney General Office of the Attorney General ofthe State of California California Department of Justice 455 Golden Gate Ave., Ste. 11000 San Francisco, CA 94102-7004 E-mail: John.Deist@doj.ca.gov (via TrueFiling) Scott Kaufmann California Appellate Project 101 2™ Street, Ste. 600 San Francisco, CA 94105 E-mail: filing@cap.sf.org (Via TrueFiling) Clerk of the Court Contra Costa County Superior Court Wakefield Taylor Courthouse 725 Court Street Martinez, CA 94553-1233 (via U.S. mail) Douglass MacMaster Acting District Attorney Contra Costa District Attorney’s Office P.O. Box 670 Martinez, CA 94553 E-mail: appellate.pleading@contracostada.org (Via TrueFiling) Mr. Joseph Perez T-42655 San Quentin State Prison San Quentin, CA 94974 (Via U.S. mail) I declare under penalty ofperjury underthe laws ofthe State ofCalifornia that the foregoing is true and correct and that this declaration was executed at Mill Valley, California, on October30, 2017. /s/ A, Richard Ellis A. RICHARD ELLIS Jorge E. Navarrete. Court Administrator and Clerk STATE OF CALIFORNIA Supreme Court of California Case Number: 8104144 Lower Court Case Number: PROOF OF SERVICE STATE OF CALIFORNIA Supreme Court of California Case Name: PEOPLE v. PEREZ (JOSEPH ANDREW) Electronically FILED on 10/31/2017 by April Boelk, Deputy Clerk 1. At the time of service I wasat least 18 years of age and nota party to this legal action. 2. My email address usedto e-serve: a.r.ellis@att.net 3. I served by email a copyofthe following document(s) indicated below: Title(s) of papers e-served: Filing Type Document Title LETTER Additional Authorities Letter-Amended Declaration Service Recipients: Person Served Email Address Type Date / Time Attorney General - San Francisco Office john.deist@doj.ca.gov e- 10-31- John Deist, Deputy Attorney General Service|2017 SFG 12:45:31 PM California Department of Justice Docket Unit SFAG.Docketing@doj.ca.gov e- 10-31- California Dept of Justice, Office of the Attorney General Service|2017 12:45:31 PM Contra Costa DA Contra Costa District Attorney's Office appellate.pleading@contracostada.orgie- 10-31- California Dept of Justice, Office of the Attorney General Service|2017 12:45:31 PM eService California Appellate Project filing@capsf.org e- 10-31- California Appellate Project Service|2017 000000 12:45:31 PM John Deist john.deist@doj.ca.gov e- 10-31- California Dept of Justice, Office of the Attorney General Service|2017 136469 12:45:31 PM Richard Ellis a.r.ellis@att.net e- 10-31- Law office of A. Richard Ellis Service|2017 64051 12:45:31 PM Richard Ellis a.r.ellis@att.net e- 10-31- Lawoffice of A. Richard Ellis Service|2017 64051 12:45:31 PM This proof of service was automatically created, submitted and signed on my behalf through my agreements with TrueFiling and its contents are true to the best of my information, knowledge, andbelief. I declare under penalty of perjury underthe lawsof the State of California that the foregoingis true and correct. 10-31-2017 Date /s/Richard Ellis Signature Ellis, Richard (64051) Last Name,First Name (PNum) Law office of A. Richard Ellis Law Firm
