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

Eva McClintock Eva McClintock

Electronically RECEIVED on 10/21/2024 at 10:18:00 AM Electronically FILED on 10/21/2024 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 OPENING BRIEF

(Public – Redacts material from sealed record)

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: [email protected]

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 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 15 -
STATEMENT OF APPEALABILITY . . . . . . . . . . . . . . . . . . . - 17 -
STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . . . . . - 17 -

STATEMENT OF FACTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 18 -
A. Kristin Smart goes missing . . . . . . . . . . . . . . . . . . . . - 18 -
B. The Crandall Way party . . . . . . . . . . . . . . . . . . . . . . - 20 -

C. The walk home from the Crandall Way party . . . . . - 22 -

D. The events following Smart’s disappearance . . . . . . - 23 -

E. Appellant’s statements to law enforcement . . . . . . . - 25 -

F. The dog searches at Santa Lucia dorm . . . . . . . . . . . - 27 -

G. Jennifer Hudson and Justin Goodwin come

forward . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 29 -

H. Uncharged offense evidence . . . . . . . . . . . . . . . . . . . - 32 -

1. Ro.D.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 32 -

2. S.D.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 33 -

I. The January, 2020 wiretap . . . . . . . . . . . . . . . . . . . . - 35 -

J. The investigation focuses on 710 White Court . . . . . - 35 -

K. Testing on soil specimens from White Court . . . . . . - 39 -
L. Mike McConville’s cargo trailer. . . . . . . . . . . . . . . . . - 41 -

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 41 -
I. The trial court violated appellant’s Sixth and
Fourteenth Amendment right to the unanimous
verdict of 12 impartial jurors by repeatedly
declining to remove a juror who had lost her
ability to remain neutral and abide by her oath . . . - 41 -
-2-
 A. Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 42 -
1. Juror No. 273 expresses anxiety after
defense questioning of Steven Fleming. . . . . . - 42 -

2. Juror No. 273’s emotional outburst. . . . . . . . . - 42 -

3. Juror No. 273 again asks for a break . . . . . . . - 44 -
4. Juror No. 273’s Pinterest page and
conversations outside the courtroom. . . . . . . . - 44 -
B. Standard of review . . . . . . . . . . . . . . . . . . . . . . . . - 45 -
C. If even a single juror lacks the ability to be
fair and impartial, the resulting conviction
violates the accused’s constitutional right to
jury trial and requires per se reversal . . . . . . . . . - 46 -

D. The trial court abused its discretion by

denying appellant’s second, third, and fourth
requests to discharge Juror No. 273. . . . . . . . . . . - 47 -

II. Because there was no evidence that appellant

sexually assaulted Smart, the trial court abused
its discretion, and violated the Fourteenth
Amendment’s due process clause, by admitting
inflammatory evidence of two uncharged rapes . . . . - 51 -

A. Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 52 -

1. Prosecutor’s motion to amend complaint . . . . - 52 -

2. Prosecutor’s in limine motion to introduce

uncharged sex offenses . . . . . . . . . . . . . . . . . . - 53 -
B. Standard of review . . . . . . . . . . . . . . . . . . . . . . . . - 55 -
C. Though uncharged offense evidence is
generally inadmissible, Evidence Code section
1108 permits its introduction when the
defendant is charged with a sexual offense . . . . . - 55 -
D. Although Evidence Code section 1108 may
apply in felony-murder rape cases, a
prosecutor’s bare allegation of rape is
insufficient to trigger the statute’s application . . - 56 -

-3-
 E. As the prosecutor made no threshold showing
that appellant committed a sexual offense
against Smart, the trial court abused its
discretion by admitting the uncharged offense
evidence under Evidence Code section 1108 . . . . - 60 -
F. The trial court further abused its discretion
by admitting the uncharged offense evidence
under Evidence Code section 1101,
subdivision (b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 65 -
G. The admission of highly inflammatory
uncharged offense evidence requires reversal
of appellant’s murder conviction . . . . . . . . . . . . . - 68 -

H. Even if admission of the uncharged offense

evidence was harmless on the issue of malice
murder, it requires reversal of the first degree
murder finding . . . . . . . . . . . . . . . . . . . . . . . . . . . - 74 -

III. The trial court violated the Fourteenth

Amendment’s due process clause by allowing a
lay witness to opine that Smart looked like she
had been given “roofies” . . . . . . . . . . . . . . . . . . . . . . . - 75 -
A. Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 75 -

B. Standard of review . . . . . . . . . . . . . . . . . . . . . . . . - 77 -

C. There was no foundation to support Boelter’s

opinion that Smart looked like she had been
given roofies. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 77 -

D. Boelter’s testimony about what he read in the

school newspaper was inadmissible hearsay. . . . . -80 -
E. Boelter’s erroneously admitted testimony
requires reversal of appellant’s conviction, or
a reduction to second degree murder, since it
enabled the prosecution to prove an otherwise
unprovable sexual assault . . . . . . . . . . . . . . . . . . - 80 -
IV. The prosecutor committed misconduct, in
violation of the Fourteenth Amendment’s due
process clause, by misusing the ball gag
photograph for character purposes . . . . . . . . . . . . . . - 83 -

A. Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 83 -
-4-
 B. The prosecutor committed misconduct by
misusing limited purpose evidence to advance
an improper character inference . . . . . . . . . . . . . - 84 -

C. The prosecutor’s misconduct constituted

reversible error . . . . . . . . . . . . . . . . . . . . . . . . . . . - 86 -
V. As there was no substantial evidence to support
any theory of first degree murder, appellant’s
conviction for that crime violates the Fourteenth
Amendment’s due process clause . . . . . . . . . . . . . . . - 88 -
VI. The trial court violated appellant’s Fourteenth
Amendment due process rights by misstating the
mens rea element of attempted rape of an
intoxicated person and precluding jurors from
considering whether his own intoxication led him
to misjudge Smart’s ability to consent . . . . . . . . . . . - 90 -

A. Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 91 -
B. Standard of review and cognizability. . . . . . . . . . - 92 -

C. The trial court misinstructed on the elements

of attempted rape of an intoxicated person by
replacing the crime’s knowledge and intent
requirement with a constructive knowledge
standard. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 92 -

D. The trial court exacerbated its error by

erroneously precluding jurors from
considering appellant’s own intoxication on
the specific intent element of attempted rape . . . - 95 -

E. It cannot be said beyond a reasonable doubt

that the jury would have convicted of first
degree murder in a trial without the two
instructional errors . . . . . . . . . . . . . . . . . . . . . . . . - 96 -
VII. The errors discussed in Arguments II, III, IV,
and VI caused appellant cumulative prejudice
which violated his Fourteenth Amendment due
process rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 99 -
CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 100 -

WORD COUNT CERTIFICATE . . . . . . . . . . . . . . . . . . . . . . - 101 -

PROOF OF SERVICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 102 -

-5-
 TABLE OF AUTHORITIES
Cases

Apprendi v. New Jersey (2000)

530 U.S. 466 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 92, 95
Ballard v. Uribe (1986)
41 Cal.3d 564. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46

Chambers v. Mississippi (1973)

410 U.S. 284 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 99
Chapman v. California (1967)
386 U.S. 18 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68, 80, 86

Christian Research Institute v. Alnor (2007)

148 Cal.App.4th 71 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 80

Donnelly v. DeChristoforo (1974)

416 U.S. 637 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85-86
Dyer v. Calderon (9th Cir. 1998)
151 F.3d 970 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
Estelle v. McGuire (1991)
502 U.S. 62 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56, 68, 77, 79

Gray v. Mississippi (1987)

481 U.S. 648 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46, 51

Griffin v. California (1965)

380 U.S. 609 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 87

In re Bell (2017)
2 Cal.5th 1300 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
In re Cortez (1971)
6 Cal.3d 78. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55

In re Leland D. (1990)
223 Cal.App.3d 251 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 89
In re Martin (1987)
44 Cal.3d 1. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72-73

Jackson v. Virginia (1979)

443 U.S. 307 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 88
-6-
Jammal v. Van de Kamp (9th Cir. 1991)
926 F.2d 918 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56, 68
Matthews v. Superior Court (1988)
201 Cal.App.3d 385 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
Morgan v. Illinois (1992)
504 U.S. 719 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46, 48
Neder v. United States (1999)
527 U.S. 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 92, 96
Ocampo v. Vail (9th Cir. 2011)
649 F.3d 1098 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 80

Old Chief v. United States (1997)

519 U.S. 172 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 87

Overhill Farms, Inc. v. Lopez (2010)

190 Cal.App.4th 1248 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78
Pajaro Valley Water Management
Agency v. McGrath (2005)
128 Cal.App.4th 1093 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 80
Parle v. Runnels (9th Cir. 2007)
505 F.3d 922 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 99

Patterson v. New York (1997)

432 U.S. 197 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 95

People v. Albarran (2007)

149 Cal.App.4th 214 . . . . . . . . . . . . . . . . . . . . . . . . . . . 59-60, 65

People v. Alcala (1984)

36 Cal.3d 604. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
People v. Anderson (1968)
70 Cal.2d 15 604 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 89

People v. Avila (2014)

59 Cal.4th 496 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
People v. Bacon (2010)
50 Cal.4th 1082 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59

People v. Bailey (2012)

54 Cal.4th 740 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 93
-7-
People v. Baker (2021)
10 Cal.5th 1044 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57-58
People v. Barton (2020)
56 Cal.App.5th 496 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
People v. Bell (1998)
61 Cal.App.4th 282 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
People v. Benson (1990)
52 Cal.3d 754. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85
People v. Berryman (1993)
6 Cal.4th 1048 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 88

People v. Branch (2001)

91 Cal.App.4th 274 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72

People v. Braslaw (2015)

233 Cal.App.4th 1239 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 93
People v. Britt (2002)
104 Cal.App.4th 500 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56, 58

People v. Cameron (1994)

30 Cal.App.4th 591 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 97-98

People v. Castillo (1997)

16 Cal.4th 1009 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 92
People v. Chapple (2006)
138 Cal.App.4th 540 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77

People v. Chiu (2014)

59 Cal.4th 155 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75, 98
People v. Clark (1993)
5 Cal.4th 950 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 95
People v. Cole (1956)
47 Cal.2d 99. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77
People v. Cottone (2013)
57 Cal.4th 269 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
People v. Cruz (1964)
61 Cal.2d 861. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72, 81

-8-
People v. Daniels (1991)
52 Cal.3d 815. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
People v. Daniels (2017)
3 Cal.5th 961 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
People v. Daveggio and Michaud (2018)
4 Cal.5th 790 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57-58
People v. Diaz (2014)
227 Cal.App.4th 362 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73
People v. Dillon (2009)
174 Cal.App.4th 1367 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 93-94

People v. Dryden (2021)

60 Cal.App.5th 1007 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66-67

People v. Erving (1998)

63 Cal.App.4th 652 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
People v. Ewoldt (1994)
7 Cal.4th 380 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66

People v. Falsetta (1999)

21 Cal.4th 903 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55-56

People v. Fontenot (2019)

8 Cal.5th 57 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 93
People v. Hall (1986)
41 Cal.3d 826. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59

People v. Harris (2008)

43 Cal.4th 1269 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
People v. Hendrix (2022)
13 Cal.5th 933 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74
People v. Hill (1998)
17 Cal.4th 800 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 99
People v. Hillhouse (2002)
27 Cal.4th 469 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 92
People v. Holloway (2004)
33 Cal.4th 96 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45

-9-
People v. Hovey (1988)
44 Cal.3d 543. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85
People v. Hoyos (2007)
41 Cal.4th 872 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59-60, 65
People v. Hughes (2002)
27 Cal.4th 287 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 92
People v. Kelley (1967)
66 Cal.2d 232. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73
People v. Kraft (2000)
23 Cal.4th 978 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 88

People v. Lang (1989)

49 Cal.3d 991. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85

People v. Leon (2015)

61 Cal.4th 569 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
People v. Linwood (2003)
105 Cal.App.4th 59 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 93

People v. Loy (2011)

52 Cal.4th 46 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57, 62

People v. McAlpin (1991)

53 Cal.3d 1289. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77
People v. Mendoza (1998)
18 Cal.4th 1114 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 95

People v. Mil (2012)

53 Cal.4th 400 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 92
People v. Morrison (2004)
34 Cal.4th 698 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58-59
People v. Navarette (2003)
30 Cal.4th 458 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77
People v. Nesler (1997)
16 Cal.4th 561 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
People v. Peterson (2020)
10 Cal.5th 409 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49

- 10 -
People v. Posey (2004)
32 Cal.4th 193 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 92
People v. Ramirez (2022)
13 Cal.5th 997 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
People v. Rist (1976)
16 Cal.3d 211. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
People v. Robbins (1988)
45 Cal.3d 867. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53, 66-67
People v. Romero (2017)
14 Cal.App.5th 774 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46-48, 51

People v. Saille (1991)

54 Cal.3d 1103. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 95

People v. Sandoval (2015)

62 Cal.4th 394 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 88
People v. Schader (1969)
71 Cal.2d 761. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55-56

People v. Scheer (1998)

68 Cal.App.4th 1009 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65

People v. Sergill (1982)

138 Cal.App.3d 34 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79
People v. Smithey (1999)
20 Cal.4th 936 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84-85

People v. Spector (2011)

194 Cal.App.4th 1335 . . . . . . . . . . . . . . . . . . . . . . . . . . 53, 66-67
People v. Story (2009)
45 Cal.4th 1282 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
People v. Tidwell (1970)
3 Cal.3d 62. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
People v. Valdez (1997)
58 Cal.App.4th 494 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 89
People v. Vargas (Ill. 1992)
224 Ill.App.3d 832 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79

- 11 -
People v. Vargas (2001)
91 Cal.App.4th 506 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85
People v. Verdugo (2010)
50 Cal.4th 263 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 92
People v. Vichroy (1999)
76 Cal.App.4th 92 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
People v. Vieira (2005)
35 Cal.4th 264 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
People v. Waidla (2000)
22 Cal.4th 690 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77

People v. Watson (1956)

46 Cal.2d 818. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68, 74, 86

People v. Weatherton (2014)

59 Cal.4th 589 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
People v. White (Ill. 1970)
131 Ill.App.2d 652 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79

People v. Whitfield (1994)

7 Cal.4th 437 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 97

People v. Woods (2006)

146 Cal.App.4th 106 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 99
People v. Younger (2000)
84 Cal.App.4th 1360 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 89

Ramos v. Louisiana (2020)

590 U.S. 83 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
Salazar v. Superior Court (2000)
83 Cal.App.4th 840 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
Sargon Enterprises, Inc. v. University of
Southern California (2012)
55 Cal.4th 747 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77
State v. Wright (Or. 2016)
283 Ore.App. 160. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67

United States v. Brown (9th Cir. 2003)

327 F.3d 867 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85-86
- 12 -
United States v. Lemay (9th Cir. 2001)
260 F.3d 1018 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56

Statutes
Code of Civil Procedure
Section 225 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46-47

Evidence Code
Section 352 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54, 56, 76
Section 1101 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53, 55, 65

Section 1108 . . . . . . . . . . . . . . . . . . . . . . . . . . . 53-57, 60, 63, 65

Penal Code

Section 29.4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 95
Section 32 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

Section 187 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

Section 189 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

Section 261 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 93
Section 1033 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 100

Section 1033.1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 100

Section 1089 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
Section 1127h . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
Section 1237 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

Section 1259 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 92

- 13 -
 Constitutions
California Constitution

Article I, section 15 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 88
Article I, section 16 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
United States Constitution

Sixth Amendment . . . . . . . . . . . . . . . . . . . . . . . . . . 41, 46, 92, 94

Fourteenth Amendment . . . . . . . . . . . 41, 46, 51, 56, 75, 79, 83,
85-86, 88, 90, 92, 94-96, 99

Other Authorities

CALCRIM Jury Instructions

No. 460. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 91-94

No. 625. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 91, 95

No. 1002. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 91, 93-94

No. 1191A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 89

California Rules of Court

Rule 8.360 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 101

- 14 -
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
In 1996, Kristin Smart went to a college party, became
intoxicated, and disappeared forever. Appellant Paul Flores went
to the same party and was the last person seen in her company.
Nearly 25 years later, prosecutors charged appellant with Smart’s
murder. At trial, the prosecutor argued that appellant killed
Smart during the commission or attempted commission of a rape.
The jury convicted of first degree murder.
A series of errors marred appellant’s trial. First, the court
repeatedly denied appellant’s requests to discharge a juror who:
(1) had an emotional midtrial outburst during key prosecution
testimony; (2) had two other midtrial anxiety attacks which she
specifically blamed on defense counsel; (3) discussed the case with
the bailiff and friends; and (4) revealed to the bailiff that her
neutrality had begun to waver. As a result of the court’s rulings,
appellant did not receive a trial by 12 fair and impartial jurors.
The error requires per se reversal of his conviction.
Second, though there was no evidence appellant sexually
assaulted Smart, the trial court admitted highly prejudicial
testimony from two women who claimed he had drugged and
raped them. The court later compounded its error by allowing a
- 15 -
lay witness to testify, without adequate foundation, that Smart’s
behavior at the party reminded him of his own experience after
being given a date rape drug. The prosecutor compounded the
error even further by using an especially inflammatory
photograph to portray appellant as a sexual predator – though
the court did not admit the photograph for character purposes.
For the same reasons there was no evidence to justify
admission of the uncharged offense evidence, there was also no
evidence to support a felony-murder verdict based on rape or
attempted rape. The prosecution, likewise, presented no evidence
to show a premeditated murder of Smart. With no substantial
evidence to show any form of first degree murder, appellant’s
conviction must be reduced to second degree murder.
Finally, the trial court gave two erroneous instructions on
attempted rape of an intoxicated person – used by the prosecutor
as a target crime for his first degree felony-murder theory. The
misinstructions had the effect of removing the specific intent
element of attempt and allowing jurors to find an attempted rape
of an intoxicated person so long as a reasonable person would
have known Smart was too intoxicated to resist.
The above-described errors deprived appellant of the fair
trial to which due process entitled him. He, therefore, asks this
Court to reverse his murder conviction or, alternatively, reduce
the crime to second degree murder.

- 16 -
 STATEMENT OF APPEALABILITY
This appeal is from a final judgment after a jury trial and is
authorized by Penal Code section 1237.1
STATEMENT OF THE CASE
On April 14, 2021, the San Luis Obispo County District
Attorney filed a criminal complaint charging appellant with
murder (§ 187, subd. (a)) and his father, Ruben Flores (Ruben),
with accessory after the fact to murder (§ 32). (1 CT 126-127.) The
complaint further alleged that the murder occurred during the
commission or attempted commission of a rape (§ 189, subd. (a)).
(1 CT 127.) The District Attorney later filed an information with
the same charges and allegations. (10 CT 2867-2869.)
After appellant successfully moved for a change of venue,
the case was transferred to Monterey County. (22 CT 6368-6390;
Supp. CT [Dec. 12, 2023 augmentation]: 85, 87.) Appellant and
Ruben had a single trial with separate juries. (See 1 Aug. RT 38.)
The court swore appellant’s jury, plus eight alternates, on June
28, 2022. (29 CT 8662, 8664.)
The jury retired for deliberations on October 4, 2022. (32
CT 9561-9562.) Deliberations lasted four full days plus parts of
three others. (32 CT 9562-9564, 9579, 9581, 9583-9584, 9586.) On
October 18, 2022, the jury found appellant guilty of first degree
murder. (47 RT 13805.) Ruben’s jury found him not guilty of
accessory after the fact. (34 CT 10171.)
Appellant filed a motion for new trial. (33 CT 9816-9863.)
The trial court denied the motion on March 10, 2023. (49 RT
14480.) It entered judgment that same day, sentencing appellant
to 25 years to life in prison. (49 RT 14531.)

1
All statutory references are to the Penal Code unless
otherwise stated.
- 17 -
 Appellant filed a timely notice of appeal on April 10, 2023.
(35 CT 10285.)
STATEMENT OF FACTS
On Memorial Day weekend in 1996, appellant and Kristin
Smart both drank to excess at a San Luis Obispo college party.
Afterwards, appellant accompanied Smart on the walk back to
the dorms. Smart never made it home and her body has never
been found. The prosecutor theorized that appellant drugged
Smart at the party, took her back to his dorm room, sexually
assaulted and killed her, and buried her body under his father’s
home in the nearby town of Arroyo Grande.
A. Kristin Smart goes missing
During the 1995-1996 school year, appellant was a
freshman at Cal Poly San Luis Obispo. (13 RT 3700-3701.) He
lived with Derrick Tse in room 128 of Santa Lucia Hall dorm. (8
RT 2233-2235.) When not at school, appellant stayed with his
father, Ruben, at 710 White Court in Arroyo Grande. (9 RT 2459,
2480-2481.) Appellant’s mother, Susan, also lived in Arroyo
Grande at a different address. (9 RT 2462-2464.) The drive from
Cal Poly to Arroyo Grande takes some 30 minutes. (13 RT 3668.)
Kristin Smart also began her freshman year at Cal Poly in
the fall of 1995. (2 RT 341.) In early 1996, she moved to Muir Hall
where she shared a room with Crystal Calvin (now Teschendorf).2
(6 RT 1587-1589.) Muir and Santa Lucia both belonged to Cal
Poly’s red brick dorm complex. (6 RT 1511-1513.)
Margarita Campos lived next door to Smart and became
close friends with her. (4 RT 923, 925.) Vanessa Brinley (now
Shields) also lived on the same floor and was friends with Smart.
(3 RT 684-686.) Neither Campos nor Brinley ever saw appellant

2
Because witnesses at trial referred to each other by their
1996 surnames, appellant uses the 1996 surnames in this brief.
- 18 -
at Muir Hall. (3 RT 699-700; 4 RT 971.) However, they both knew
of him and had seen him staring at Smart. (3 RT 689-691; 4 RT
949-950.) Smart told Brinley she had no interest in appellant. (3
RT 693.)
Steven Fleming moved to Muir Hall in early 1996. (6 RT
1638, 1679-1680.) Fleming played on the Cal Poly basketball
team. (6 RT 1639.) He bonded with Smart because she was
around 6 feet tall and they were both struggling in school. (6 RT
1641, 1662-1663; see 2 RT 310.) On five or six occasions, Fleming
noticed appellant inside Smart’s dorm room. (7 RT 1859.) One
time, he saw appellant standing in front of the open door,
blocking Smart’s way out. (6 RT 1667, 1669.) Smart looked
“uncomfortable,” as if she did not want him there. (6 RT 1667.)
In 1996, Memorial Day fell on Monday, May 27. (8 RT
2217.) On Friday, May 24, many students left town for the long
weekend. (4 RT 928.) Tse went home that evening, informing
appellant he would not return until Tuesday. (8 RT 2236-2238.)
That same night, Smart attended a party at 135 Crandall Way.
(10 RT 2709, 2733.) She never made it back to Muir Hall. (8 RT
2203; see also 6 RT 1597-1599.)
Campos and Calvin noticed Smart’s disappearance and
discussed it with Jennifer Phipps (now Medeiros), another
student at Muir Hall. (8 RT 2200, 2202-2204.) Phipps called Cal
Poly police, who told her to call back on Tuesday if Smart had still
not returned. (8 RT 2205.) When Phipps called again on Tuesday,
campus police came and took a formal report. (8 RT 2206-2207.)
Fleming did not provide any information to police after
Smart went missing. (6 RT 1677.) In a 1999 interview with the
FBI, Fleming referred to Smart as a “casual friend[]” and said
they had a class together. (6 RT 1677-1678; 7 RT 1876.) He
assumed that Smart and appellant were dating. (6 RT 1683.)
After college, Fleming joined the military, then became a police

- 19 -
officer. (6 RT 1640-1641.) He did not speak to law enforcement
again until July 9, 2021, when two officers showed up at his
home. (6 RT 1684; 7 RT 1887-1888.) During the interview,
Fleming referred to appellant as a “fucking creep.” (6 RT 1686.)
B. The Crandall Way party
Before going to the Crandall Way party, Smart went to a
different off-campus party, along with Campos and several other
women from Muir Hall. (4 RT 929-930.) One of the women drove
the group in her truck. (4 RT 930.) Smart wore black shorts, a
gray short-sleeved shirt, and red shoes. (4 RT 937-938.) Campos
described the shorts as Roxy brand vinyl “board shorts.” (4 RT
967-968.) Smart often used the nickname Roxy. (4 RT 968.) She
would later identify herself by that name throughout the
Crandall Way party. (See, e.g., 3 RT 739; 7 RT 1931, 1952.)
At the first party, Smart and Campos each drank one beer.
(4 RT 931.) After a few hours, the group returned to the truck and
headed back to Muir Hall. (4 RT 932.) On the way, Smart
requested that she and Campos be let out so they could walk
home. (4 RT 932.)
Campos wanted to walk back to Muir Hall via the shortest
route. (4 RT 934-935.) Smart preferred a less direct path in the
hope they might find another party. (4 RT 934-935.) Unable to
agree, they went separate ways. (4 RT 936.) Campos last saw
Smart sometime between 10:30 and 11:00 p.m. (4 RT 968.) Smart
appeared sober. (4 RT 937.)
Both appellant and Smart ended up at the Crandall Way
party – along with some 60 to 70 others. (10 RT 2711, 2733; see 4
RT 1022.) One guest described the attendees as “shoulder to
shoulder.” (4 RT 1008.) Some people, including appellant, played
pool in the front room. (10 RT 2711-2712, 2773.) The home had a
kitchen and a bar area with keg beer. (3 RT 728; 4 RT 1009-1010.)
Many people drank heavily. (10 RT 2735.) Timothy Davis, a

- 20 -
friend of the hosts, saw people engaging in beer-drinking races.
(10 RT 2709-2710, 2735.) Davis did not personally drink hard
liquor but believed others had it. (10 RT 2794.)
Kendra Koed did not know appellant but the two struck up
a conversation after she asked if he had any gum. (3 RT 730.) In
the midst of the conversation, appellant suddenly kissed her. (3
RT 730.) Koed pushed him away, stating that she only wanted
gum. (3 RT 730.) Later, appellant tried to kiss her again only for
Koed to again push him away. (3 RT 731.)
Matthew Toomey went to the party with his roommate Ross
Ketcham. (7 RT 1907.) Smart approached them and conversed
with Ketcham. (7 RT 1907-1909.) Smart had a drink in her hand
and her speech was slurred. (4 RT 1015; 7 RT 1927.) Ketcham
noticed appellant looking at her. (4 RT 1013.) While speaking
with Toomey, appellant commented on Smart’s good looks and
asked about her relationship with Ketcham. (7 RT 1909-1911,
1925.)
Several times, Davis observed appellant and Smart
together near the bar. (10 RT 2736.) Appellant looked drunk. (36
RT 10513.) Ketcham saw him with his arm around Smart. (4 RT
1012.) A short time later, Smart fell off the washing machine or
sink while sitting on it. (4 RT 1012.) Ketcham looked over and
saw Smart on the ground. (4 RT 1022.) Davis also heard the fall,
then saw both Smart and appellant on the ground, laughing. (10
RT 2735-2736.)
Smart introduced herself to Trevor Boelter and kissed him
on the mouth. (7 RT 1952.) Afterwards, she grabbed Boelter’s
hand and took him to the bathroom, where she stood in front of
the mirror and smoothed over her makeup. (8 RT 2108-2109.)
Boelter did not smell alcohol on her breath. (8 RT 2109.)
When Boelter later left the bathroom, a man walked up and
asked what he had done “with her in the bathroom.” (8 RT 2110-

- 21 -
2112.) Boelter replied, “Nothing,” and the man laughed. (8 RT
2111.) At trial, Boelter identified the man as appellant. (8 RT
2111-2112.) In a 2004 e-mail, he professed uncertainty about the
man’s identity. (8 RT 2154.)
As the evening progressed, Boelter noticed that Smart
appeared “more and more out of it.” (8 RT 2113.) She became
“spacey” and could not stand straight – as if on drugs. (8 RT 2115-
2116.) Boelter was once “Roofied” at a bar. (8 RT 2161.) He
initially became happier and more talkative than usual, but later
passed out and had to be carried home. (8 RT 2162.) Smart’s
behavior reminded him of his own experience. (8 RT 2162-2163.)
Boelter left the party between 12:00 and 12:30 a.m. (8 RT
2121.) Some 5 or 10 minutes before then, Smart kissed him again
in the backyard. (8 RT 2114-2115.) This time, Boelter pushed her
away. (8 RT 2116.) Boelter could not recall if her breath smelled
of alcohol. (8 RT 2116.)
C. The walk home from the Crandall Way party
Toomey and Ketcham left the Crandall Way party around
midnight. (7 RT 1913-1914.) Soon afterwards, they saw Smart
lying on the lawn of a nearby house as if trying to sleep. (7 RT
1913-1915, 1931-1932.) The two men offered to walk her home
but Smart did not want to leave. (7 RT 1914-1915.)
The party broke up between 2:00 and 2:30 a.m. (4 RT 1039.)
Davis agreed to walk his friend, Cheryl Anderson (now Manzer),
back to her dorm. (10 RT 2741-2742.) On the way, he saw Smart
lying on the lawn. (10 RT 2741-2742.) Davis lifted her up and told
her she had to leave. (10 RT 2744, 2747.) Davis, Anderson, and
Smart then began walking toward the dorms. (10 RT 2748-2749.)
Smart walked slowly, with Davis supporting her at the waist. (10
RT 2748-2749.)
Appellant soon joined the group. (10 RT 2750-2751, 2755.)
At trial, Davis claimed that appellant appeared “out of the

- 22 -
darkness” – coming through the door which led from 135 Crandall
to the home’s backyard. (10 RT 2750-2751.) In a 1996 interview,
Davis said appellant was with a group outside a fraternity house,
across the street from 135 Crandall. (36 RT 10510-10511.)
After a short distance, appellant offered to walk Smart
home. (10 RT 2756.) Davis turned her over to appellant, who put
his hand around her waist to keep her upright. (10 RT 2757-
2758.) Davis left. (10 RT 2756-2758.) Anderson testified that
Smart was “wobbly” and had to stop several times. (4 RT 1046-
1047.) Each time, appellant told Anderson she could continue
walking and he would look after Smart. (4 RT 1046.) Anderson
replied that she did not want to walk alone. (4 RT 1046.) The
Crandall Way home was around a half-mile from the red brick
dorms. (6 RT 1547.)
At the intersection of Perimeter and Grand, Anderson
separated from appellant and Smart and veered off toward her
own dorm building. (4 RT 1054-1057.) Appellant assured
Anderson that he would safely take Smart “back to her dorm
room.” (4 RT 1055-1056.) He then asked Anderson for a kiss. (4
RT 1055.) When she declined, he requested a hug which she also
declined. (4 RT 1055-1056.)
D. The events following Smart’s disappearance
Phone records showed that appellant placed a 50-second
call to Ruben at 9:47 a.m. on Sunday, May 26. (14 RT 4023.) That
same day, Ruben picked up appellant and drove him to Arroyo
Grande for the rest of the weekend. (13 RT 3625-3626.)
On Sunday evening, appellant visited his friend Jeromy
Moon (Jeromy). (10 RT 2831-2832.) Jeromy noticed that appellant
had a black eye. (10 RT 2832.) Appellant told Jeromy he had
woken up with the injury. (10 RT 2832.) The next day, Jeromy
and appellant played basketball together. (10 RT 2832.) In a 1996

- 23 -
statement, Jeromy said he first saw appellant’s injury on the
weekend after Memorial Day. (10 RT 2849, 2863.)
On May 28, Cal Poly police officer Robert Cudworth spoke
to appellant at the campus store where he worked. (12 RT 3414,
3424.) Appellant denied talking to Smart during the party but
admitted joining her, Davis, and Anderson as they headed back
toward the dorms. (12 RT 3415.) Smart needed help walking. (12
RT 3415.)
Also on May 28, Detective Lawrence Kennedy showed up at
appellant’s dorm room. (10 RT 2870, 2872-2873.) Kennedy
mentioned Smart’s name but appellant said he did not know her.
(10 RT 2881-2882.) Later, he clarified that he knew her as Roxy.
(12 RT 3310.) Appellant was breathing heavily and seemed
“nervous.” (10 RT 2874.) He explained that he thought Kennedy
had come to arrest him on a traffic warrant which he had cleared
up the previous day. (10 RT 2875, 2904.)
Kennedy observed a bruise under appellant’s right eye. (10
RT 2876.) Appellant attributed the injury to a weekend
basketball game. (10 RT 2878.) A few days later, Mario Garcia
saw the same injury. (9 RT 2411-2412.) Appellant told Garcia
that someone had pushed him. (9 RT 2412.)
Tse joked that appellant had probably done something with
Smart since he was the last person seen with her. (8 RT 2245-
2246.) Appellant facetiously replied that she was “at my mom’s
house right now.” (8 RT 2246-2247.)
Cal Poly’s school year ended on June 8, 1996. (1 Aug. CT
135, 137; 8 RT 2230.) Custodial staff cleaned up appellant’s old
dorm room and campus police placed yellow and black tape over
the door, with a sign permitting police entry only. (12 RT 3377-
3379.) On June 24, Deputy Richard Neufeld, a crime scene
investigator with the Sheriff’s office, processed the room. (12 RT

- 24 -
3375-3376.) A person who visits a crime scene may inadvertently
transfer trace evidence from other crime scenes. (14 RT 3924.)
Smart’s disappearance generated widespread publicity
which continued for years. (8 RT 2185; 12 RT 3384.) Billboards
about Smart went up throughout the county. (8 RT 2185-2186; 9
RT 2439.) Television shows like Dateline, True Crime, and
Unsolved Mysteries aired features on the case. (7 RT 1940; 8 RT
2135-2136, 2141.) A blogger named Dennis Mahon established a
website called Sonofsusan.com – a reference to appellant. (28 RT
8210, 8232; 36 RT 10558.) Podcaster Chris Lambert aired a multi-
part podcast called “Your Own Backyard.” (3 RT 753.) Many
segments focused on appellant and his family, including one
episode entitled “The Only Suspect.” (21 RT 6033.)
Smart’s father, Stan, went to San Luis Obispo County to
conduct his own investigation. (2 RT 309, 429-430.) While there,
he distributed flyers which offered a $10,000 reward and showed
appellant’s name, photograph, and home address. (1 Aug. CT 122;
3 RT 635-636.) Stan once went to Ruben’s home uninvited. (2 RT
431-432, 450.) When Stan identified himself, Ruben told him “to
leave or someone might get shot.” (2 RT 432.)
Around late June, 1996, the San Luis Obispo County
Sheriff took charge of the investigation. (12 RT 3360-3361.)
E. Appellant’s statements to law enforcement
Appellant gave recorded statements to Detective Kennedy
and Officer Cudworth on May 30 and to District Attorney
Investigator William Hanley on June 19, 1996. (12 RT 3337; 13
RT 3636; see 35 CT 10320-10394.) He also met with Investigator
Hanley on May 31. (13 RT 3612-3614.)
Appellant said he had “too much” to drink on the night of
the Crandall Way party. (35 CT 10366.) He had originally
planned to visit his sister, Ermelinda, who went to Cal Poly but
lived off campus. (35 CT 10374-10375; 10 RT 2888.) Before

- 25 -
leaving his dorm, he drank 20 and 22 ounce beers. (35 CT 10366,
10379-10382.) While walking to his sister’s, he saw the ongoing
party and decided to stop in. (35 CT 10374.) He never made it to
Ermelinda’s house. (35 CT 10374.)
At Crandall Way, appellant drank seven to eight cups of
beer from the keg. (13 RT 3680.) Smart briefly introduced herself
to him but he had no other interaction with her during the party.
(13 RT 3617-3618.) Smart seemed intoxicated but appellant did
not elaborate on the degree of her impairment. (13 RT 3617.)
Appellant did not recall how he ended up joining Smart’s
group on the way home. (13 CT 10367, 10388.) Smart appeared to
be “walking just fine,” albeit slowly. (35 CT 10365, 10389.) She
did not need to lean on appellant for support. (35 CT 10389.)
Appellant’s only physical contact with Smart was to give her two
hugs after she complained of being cold. (35 CT 10365, 10367,
10389.) He denied that he found Smart attractive. (35 CT 10325,
10373.) He also denied asking Anderson for a hug or kiss when
she left. (35 CT 10389-10390.)
Smart and appellant eventually separated in front of
Sequoia Hall, one of the red brick dorm buildings. (35 CT 10376-
10379; see 6 RT 1513.) When asked why he did not walk Smart
all the way to her dorm room, appellant replied, “I didn’t even
think about it.” (13 RT 3622.)
Appellant threw up after returning to Santa Lucia. (35 CT
10366.) Around 5:00 a.m., he took a shower. (35 CT 10371.) He
saw someone on his way to the bathroom but could not remember
who it was. (35 CT 10370.) Detective Kennedy urged appellant to
find that person so the police could speak with him. (10 RT 2885-
2886.) Kennedy never located the person. (10 RT 2887.)
In his May 30 interview, appellant again blamed his eye
injury on a basketball game. (35 CT 10390-10391.) In his June 19
statement, he said he struck his head on the steering wheel while

- 26 -
uninstalling a car stereo on Memorial Day. (35 CT 10349-10350.)
When pressed about his differing explanations, appellant said he
did not think it mattered and that he made up the basketball
story so he would not sound like a “klutz.” (35 CT 10350, 10355.)
F. The dog searches at Santa Lucia dorm
In 1996, Adela Morris, Wayne Behrens, and Gail LaRoque
worked as dog handlers, training dogs in human remains
detection. (15 RT 4239-4240; 16 RT 4559, 4567-4568; 18 RT 5108-
5110.) Dog trainers use a reward system to teach their dogs to
alert only on human remains, but not animal remains or live
human scent. (15 RT 4250-4252, 4254; 18 RT 5117-5118.) Morris
used bones, teeth, and blood to train her dogs on the target scent.
(15 RT 4250, 4252-4253.) She used animal carcasses, food, baby
diapers, and semen to train for negatives – that is, scents the
dogs were not supposed to alert on. (15 RT 4250-4252.) Behrens
and LaRoque employed similar training techniques. (16 RT 4567-
4568; 18 RT 5116-5117.)
To initiate a search, the trainer uses a specific command
which the dog understands as an instruction to search for human
remains. (15 RT 4282; 16 RT 4580; 18 RT 5124.) Different dogs
register an alert in different ways, such as by jumping on their
trainer. (See 15 RT 4282-4283; 16 RT 4575-4576.)
The California Rescue Dog Association has developed
proficiency standards and a certification process for human
remains dogs. (15 RT 4242-4244; 16 RT 4570.) In 1996, Morris
had two dogs certified in human remains searches: Cholla and
Cirque. (15 RT 4271-4272, 4278, 4280.) Behrens’s dog, Sierra, and
LaRoque’s dog, Torrey, were also certified to search for human
remains. (16 RT 4569-4570; 18 RT 5118.)
In 1998, Morris co-wrote an article which expressed
concerns that the handler’s behavior may influence the dog’s. (15
RT 4351-4352.) The article also warned against the practice of

- 27 -
“cross-training” dogs to detect more than one type of scent. (15 RT
4342-4343, 4353-4354.) Cholla, Cirque, and Torrey all certified at
detecting not only human remains but also live human scents. (15
RT 4343; 16 RT 4565, 4603.)
On June 29, 1996, Morris, Behrens, and LaRoque brought
their dogs to Santa Lucia dorm for human remains searches. (15
RT 4276, 4279; 16 RT 4579-4580; 18 RT 5131.) Behrens and
Sierra went first. (16 RT 4627.) Sierra initially searched the area
outside the building. (16 RT 4579-4580.) She did not alert but she
did put her paws up on the window sill outside room 128. (16 RT
4580-4581, 4595.)
A deputy allowed Behrens to enter the dorm building with
Sierra. (16 RT 4586-4588.) Sierra showed no change of behavior
in the dorm’s common area. (16 RT 4588-4589.) When she
reached the hall, she sniffed at the door to room 128 and put her
paws up on it. (16 RT 4589-4590.) The door had a placard on it
which other doors did not have. (16 RT 4633-4634.)
Inside room 128, Sierra went to her left, sniffed at the bed,
then came back and jumped on Behrens – signaling an alert. (16
RT 4590-4591.) The mattress on the left-hand side was the one
which had been used by appellant. (3 Aug. CT 890-892; 8 RT
2239-2240.)
Cholla and Cirque also alerted in front of room 128’s door
and on the left-side bed. (15 RT 4285-4289, 4309.) Upon learning
of the alerts, Deputy Richard Neufeld returned to room 128 and
collected the left-side mattress and box spring cover. (12 RT 3447-
3448; 14 RT 3970-3971.) Morris later brought Cholla back to the
room and she continued to alert on the left-side bed frame. (15 RT
4316-4317.) Cholla did not alert in any other area of Santa Lucia
Hall. (15 RT 4303.)
LaRoque brought Torrey to search the residence hall after
the mattress had been removed. (18 RT 5131, 5151-5152.) Torrey

- 28 -
alerted in front of room 128. (18 RT 5138-5139.) Once inside, she
initially alerted on the room’s right-hand side, which still had its
mattress. (18 RT 5140.) LaRoque instructed Torrey to continue
searching, as her “body language” suggested she had not yet
identified the strongest source of scent. (18 RT 5144-5145.) When
Torrey reached the bed frame in the room’s left-hand corner, she
scratched at the carpet, whined, and alerted. (18 RT 5145-5146.)
She also picked up a garbage can and dropped it at LaRoque’s
feet. (18 RT 5146.) LaRoque construed her actions to mean the
frame and garbage can constituted the primary sources of scent.
(18 RT 5148-5149.)
When Torrey finished in room 128, the detectives placed
three similar looking garbage cans at the end of the hall. (18 RT
5149-5150.) Torrey sniffed at the three cans and alerted on one of
them. (18 RT 5150.) The detectives later told LaRoque it was the
same garbage can which had been in room 128. (18 RT 5151.)
DNA testing on the seized mattress excluded both appellant
and Smart at eight different locations. (28 RT 8747.) At the ninth
location, neither Smart nor appellant could be included or
excluded as contributors. (30 RT 8745.) If one was a contributor,
the other could not have been. (30 RT 8792.)
In 1998, Morris and LaRoque returned to Cal Poly for
additional searches with Cholla and Torrey. (15 RT 4360.)
Although neither dog alerted, they both “showed interest” near a
corner of the Performing Arts Center. (15 RT 4360.) Cholla
slowed down and began attentively sniffing at a particular area.
(16 RT 4524.) Because the building was under construction,
Morris could not take Cholla inside for a more thorough search.
(16 RT 4523-4524.)
G. Jennifer Hudson and Justin Goodwin come forward
In the summer of 1996, Jennifer Hudson was 17 years old
and living in Huasna, a rural area near Arroyo Grande. (26 RT

- 29 -
7552-7554.) Her boyfriend, Brent Moon (Brent), was an avid
skateboarder. (26 RT 7555; 34 RT 9985.) Hudson and Brent
sometimes went to a San Luis Obispo home where the tenants
had set up a backyard skateboarding ramp. (26 RT 7554-7555.) In
2019, Hudson told sheriff deputies that she once encountered
appellant at the home and that he admitted killing Smart. (26 RT
7567; 36 RT 10585-10587.)
Although Hudson was color blind, she recalled that
appellant arrived at the skateboard home in a green or blue Ford
Ranger. (26 RT 7561, 7601-7602.) While Brent used the ramp,
Hudson, appellant, and a man known as Red sat in the backyard.
(26 RT 7556-7557.) An ad came on the radio urging listeners to
call a tip center if they had information about Smart. (26 RT
7557-7558.) When the ad ended, appellant referred to Smart as a
“dick tease” and said he had “buried her” under his ramp in
Huasna because he was “sick of waiting.” (26 RT 7558.) Appellant
spoke in a “cold” and non-joking tone. (26 RT 7558.) Hudson never
mentioned this incident to Brent. (34 RT 9992, 9994-9995.)
Around two weeks later, Hudson drove two acquaintances
to meet a friend for skateboarding. (26 RT 7559-7560.) The friend
arrived in a white four-wheel drive pickup truck. (26 RT 7561-
7562.) Hudson followed the truck down a dirt road to a
skateboarding ramp. (26 RT 7561-7562.) When the driver got out,
Hudson realized it was appellant. (26 RT 7561.) She immediately
vomited then drove straight home. (26 RT 7561-7563.) Hudson
could not remember the names of the two people she drove to the
ramp. (26 RT 7607.)
Around 2002, Hudson revealed appellant’s comments to her
roommate, Justin Goodwin. (26 RT 7564.) She implored Goodwin
not to tell anyone but, in 2004, Goodwin sent a tip, via e-mail, to
the Sonofsusan website. (28 RT 8208-8209, 8217.) Goodwin
testified that he sent the same tip to the FBI, though the

- 30 -
prosecution presented no evidence to corroborate his claim. (28
RT 8210, 8221-8222.) In the e-mail, Goodwin wrote that his ex-
roommate used to stay up all night with appellant, who “was
involved in methamphetamine.” (28 RT 8218-8219.) At trial,
Goodwin insisted this was what Hudson told him – though
Hudson denied doing so. (26 RT 7579; 28 RT 8220-8221.)
Hudson and Goodwin lost touch for many years. (26 RT
7565-7566.) Goodwin’s tip found its way to Chris Lambert. (28 RT
8223.) On October 29, 2019, Goodwin contacted Hudson, revealed
that he had placed a tip with her information, and mentioned
that the information had been the subject of a podcast. (26 RT
7569; 28 RT 8211, 8233.) At Goodwin’s urging, Hudson agreed to
meet Lambert. (26 RT 7567-7570.) Goodwin set up a meeting with
Hudson and Lambert to try to find the skateboard ramp in
Huasna. (26 RT 7583; 28 RT 8212.)
In Huasna, Hudson led the group down a gravel road, later
determined to be Cierbo Trail Way. (26 RT 7585-7588; 28 RT
8213, 8235.) The road ended at a gate which they could not drive
past. (26 RT 7588.) Hudson did not see the skateboard ramp but
she recognized the area behind the gate as the place where it had
once been. (26 RT 7588; 28 RT 8259.) Goodwin viewed historical
satellite photographs from Google Maps and found that a
skateboard ramp had been in the area until 2003. (26 RT 8212-
8213.) Lambert instructed Hudson not to tell law enforcement
about their trip to find the Huasna ramp. (28 RT 8122-8124.)
On November 14, 2019, Goodwin gave Hudson’s name and
phone number to Sheriff Detective Clinton Cole. (36 RT 10563.)
Cole met with Hudson a few days later. (36 RT 10568.) Hudson
mentioned two people named Red. (36 RT 10570.) One went by
“Red Dog” and often frequented the skateboarding house. (36 RT
10571.) The other was named Randy but had red hair and may

- 31 -
have gone by Red. (36 RT 10571-10572.) Cole never determined
Randy’s last name or the identity of Red. (36 RT 10571-10573.)
Law enforcement arranged for two excavations in Huasna.
(36 RT 10537-10538.) One excavation, which followed a dog alert,
covered an area of 20 feet by 15 to 25 feet. (36 RT 10538-10539.) A
second excavation covered a much smaller area. (36 RT 10538.)
Neither excavation led to the discovery of any human remains.
(36 RT 10538.)
DMV records showed that, in September, 1996, Susan
Flores owned a blue or green Ford Ranger. (32 RT 9378-9379.)
Records also showed that, in July, 1996, Ruben transferred
ownership of a white, two-wheel drive Nissan pickup truck to
appellant. (32 RT 9381, 9391.) The truck was reported stolen in
1999. (32 RT 9391-9392.) Neither appellant nor his family has
ever owned property on Cierbo Trail Way. (36 RT 10582.) At trial,
Brent testified as a defense witness and said he did not know
appellant. (34 RT 9992.)
H. Uncharged offense evidence
In 2020 and 2021, S.D. and Ro.D. told police that appellant
had sexually assaulted them many years earlier after meeting
them at bars. (17 RT 4827; 24 RT 6935-6936.) Both women
testified at trial.
1. Ro.D.
In January, 2008, Ro.D. and some friends went to a
Redondo Beach bar called the Thirsty Club. (17 RT 4813.) Ro.D.
had a few drinks but was not drunk. (17 RT 4819.) Near closing
time, she was outside the bar speaking to her friends. (17 RT
4813-4815.) The group planned to go back to Ro.D.’s house. (17
RT 4815.) Appellant rode up on bicycle and spoke to one of the
men in the group. (17 RT 4815, 4817-4818.) The man invited
appellant to come to Ro.D.’s house. (17 RT 4816.) Appellant
accepted the invitation but said he first needed to stop by his

- 32 -
house to get something. (17 RT 4817-4818.) At appellant’s
request, Ro.D. walked home with him. (17 RT 4818.)
After arriving at his house, appellant went to the kitchen
and returned with a glass of water which Ro.D. drank. (17 RT
4819.) Appellant gave her a tour of the house. (17 RT 4822.)
Ro.D.’s next memory was of appellant having sex with her in his
bed. (17 RT 4822-4823.) Ro.D. was confused and faded in and out
of consciousness throughout the night. (17 RT 4823.) One time,
she awoke to find appellant sodomizing her. (17 RT 4823-4824.)
Appellant asked if she knew his name but Ro.D. could not
remember it. (17 RT 4823, 4845.)
During the incident, appellant placed a ball gag in Ro.D.’s
mouth, saying he did not want his roommate to hear. (17 RT
4823.) The ball gag was red with black stripes. (17 RT 4824.)
Appellant drove Ro.D. home the next morning. (17 RT
4826.) Ro.D. did not file a police report in 2008, as she could not
recall what had happened and did not think appellant would be
charged. (17 RT 4826-4827.) In 2021, she read a newspaper
article about appellant’s arrest in this case. (17 RT 4827, 4843.)
The article included a picture of appellant, whom she recognized
from the 2008 encounter. (17 RT 4827.) In May, 2021, she
reported the incident to law enforcement. (17 RT 4827.)
On cross, Ro.D. revealed that she attended Cal Poly San
Luis Obispo in 1995 and 1996. (17 RT 4831-4832.) She knew
about Smart’s disappearance but had not heard appellant’s name
mentioned as a suspect. (17 RT 4841.)
2. S.D.
In the spring of 2011, S.D. and a friend went to a San Pedro
bar called Crimsin. (24 RT 6912-6913.) The bar had no more than
six customers – one of them, appellant. (24 RT 6913-6914.) S.D.
and her friend sat at the end of the curved bar. (24 RT 6912,
6914; see also 4 Aug. CT 926-927.) Appellant sat at the other end.

- 33 -
(24 RT 6914-6915.) Several times, S.D. caught him looking in her
direction. (24 RT 6914-6915.)
S.D. and her friend went outside to smoke a cigarette,
leaving their drinks inside. (24 RT 6915.) When they returned,
appellant had moved closer to them. (24 RT 6915.) S.D. made
small talk with appellant and asked him to buy her a drink. (24
RT 6916.) S.D. had four or five drinks over a period of four hours.
(24 RT 6920.)
When they left Crimsin, S.D. returned to her car with her
friend, appellant, and a fourth person. (24 RT 6917-6918.) From
that point on, her memory grew “foggy.” (24 RT 6918.) S.D. did
not recall driving her friend home but did recall parking outside
appellant’s home on Upland Street. (24 RT 6918-6920.) Once
inside, appellant went to the kitchen and returned with a non-
alcoholic drink for S.D. (24 RT 6921.)
S.D.’s next memory was of appellant having sex with her in
his bedroom. (24 RT 6921-6922.) She felt “out of it” and confused.
(24 RT 6922.) S.D. remembered screaming and repeatedly saying,
“No.” (24 RT 6923.) Appellant grabbed a red ball from a drawer
and tried shoving it into her mouth. (24 RT 6923-6924.) S.D.
resisted and appellant eventually gave up. (24 RT 6923-6924.)
Later, S.D. took a shower to wake up. (24 RT 6922.) Appellant
went with her and again had sex with her in the shower. (24 RT
6922-6923.)
The next morning, S.D. and appellant did not speak to each
other. (24 RT 6924.) When she left, appellant tried to say
goodbye. (24 RT 6925.) S.D. replied, “when somebody tells you
‘no,’ it means ‘no.’” (24 RT 6925.) Appellant looked down and said,
“okay.” (24 RT 6925.)
S.D. did not report the incident because she was confused
about what had happened. (24 RT 6927.) In 2020, the Los Angeles

- 34 -
police contacted her on behalf of San Luis Obispo. (24 RT 6935-
6936.) S.D. told them about the 2011 incident. (24 RT 6936.)
DMV records showed appellant’s 2011 address as 938 West
Upland in San Pedro. (24 RT 6952.) He still lived there in 2020,
when sheriff deputies searched the home. (9 RT 2483; 32 RT
9375-9376.) During the search, police seized a computer with a
video on it. (32 RT 9375-9376, 9415-9416.) A photograph from the
video showed a woman with a red ball gag in her mouth. (32 RT
9415-9416, 9425-9426.) The photograph was lodged under seal
with this Court. (4 Aug. CT 1070-1072.)
I. The January, 2020 wiretap
In January, 2020, the Sheriff Department obtained
permission to tap phone lines belonging to appellant, Ruben,
Susan, and Ermelinda. (21 RT 6022-6023.) The wiretap operation
lasted around a month and resulted in 9,587 intercepted calls,
including 3,447 involving appellant. (21 RT 6024, 6029.) Around
this same time, the department purposefully leaked information
to Chris Lambert in the hopes of stimulating the suspects to
discuss the podcast. (21 RT 6033-6034.)
In one 20-minute call, Susan told appellant to listen to the
ongoing podcast “so we can punch holes in it.” (21 RT 6025, 6034-
6035, 6038-6039.) She then added, “Maybe we can’t . . .You’re the
one that can tell me.” (21 RT 6038-6039.)
J. The investigation focuses on 710 White Court
The property at 710 White Court was once an avocado
orchard. (20 RT 5720, 5726-5727.) In 1991, Edward Chadwell
built a home there and sold it to Ruben and Susan. (20 RT 5717-
5718.) The home had a backyard deck with a lattice portion
underneath. (20 RT 5734; 25 RT 7215; 3 Aug. CT 613-614.) A gate
in the lattice allowed entry to the area under the deck. (20 RT
5807-5808; 2 Aug. CT 502-503.) The gate did not have a lock. (20
RT 5805.)

- 35 -
 Around 2004, appellant went to Ruben’s house with his
then girlfriend, A.C. (18 RT 5226-5228.) In the backyard, A.C.
began walking toward the avocado trees. (18 RT 5230-5231.)
Ruben and appellant made known that they did not want her
there and redirected her to a different area. (18 RT 5232-5233.)
Between 2010 and 2020, David Stone rented a room from
Ruben. (20 RT 5774.) Stone once placed two 55-gallon plastic
drums of chemicals underneath the deck. (20 RT 5784, 5800.)
When Ruben learned about them, he became angry that Stone
had put them there without seeking permission. (20 RT 5799-
5800.) Ruben asked Stone to remove the drums. (20 RT 5805.)
On another occasion, a plumber needed to go under the
deck to fix a leak. (20 RT 5783-5784.) Ruben told the plumber to
forget it. (20 RT 5783.) Appellant may have eventually fixed the
leak, as he often did repairs for Ruben. (20 RT 5804-5805.)
On February 5, 2020, sheriffs executed a warrant at 710
White Court. (20 RT 5812; 21 RT 6009.) In the master bedroom,
they found newspaper articles, letters, and flyers about the
Kristin Smart case. (20 RT 5816.)
Jamilyn Holman lived within eyesight of Ruben’s home and
heard about the February 5 search from social media. (20 RT
5830, 5844-5845.) After sunset on February 9, 2020, Holman
heard yelling at Ruben’s house and saw Ruben, Susan, and
someone named Mike standing in the driveway. (20 RT 5831-
5832.) An enclosed cargo trailer had pulled up to the right of the
home in a grassy area next to the driveway. (20 RT 5834, 5852-
5853.) Holman also saw a camper-style travel trailer, a white van,
and a red SUV. (20 RT 5831.) The vehicles remained at the house
the next morning, with the cargo trailer in the same position. (20
RT 5834, 5853.) The cargo trailer belonged to Mike McConville –
described in the prosecutor’s opening statement as Susan’s

- 36 -
boyfriend. (25 RT 7260; 8 Aug. RT 2139.) Holman did not see
anyone put anything inside the cargo trailer. (20 RT 5853.)
Holman reported her observations to Chris Lambert but did
not tell law enforcement until March, 2021. (20 RT 5845-5846.)
On March 15, 2021, sheriff deputies arranged for two human
remains dogs to perform searches at 710 White Court. (21 RT
6070.) Both dogs searched throughout the backyard and
underneath the deck. (21 RT 6072-6075; 22 RT 6331-6332.)
Neither dog alerted but both displayed what their handlers
construed to be changes in behavior in the area to the left of the
lattice gate. (21 RT 6074-6078, 6082; 22 RT 6323, 6331-6337.)
That same day, as well as the next one, an archaeologist
named Phillip Hanes used ground penetrating radar (GPR) to
search Ruben’s property. (22 RT 6353, 6363.) GPR technology
uses radio waves to look for underground anomalies – that is,
areas in the soil which differ from their surroundings. (22 RT
6353, 6355.) Hanes’s GPR unit has an antenna which sits atop a
three-wheeled cart and is wired to a computer. (22 RT 6357-6358;
see 2 Aug. CT 552-553.) The cart travels across a grid and creates
an image which enables Hanes to determine the presence and
location of soil anomalies. (22 RT 6357-6359.)
When soil is removed and redeposited, it exposes the soil to
air and can create an anomaly. (22 RT 6356.) Such anomalies
may be indicative of burial locations, but may also be caused by
other activities such as grading, construction, and the removal of
a tree by the root ball. (22 RT 6356, 6400, 6402-6403.) During
construction on Ruben’s home, there was “extensive digging” in
the area underneath the deck. (20 RT 5744.) In addition, the
contractor removed several avocado trees by their root balls. (20
RT 5713, 5742, 5759.)
Before the GPR search, Hanes and his partner Cindy
Arrington set up 11 different grids at various locations on the

- 37 -
property. (22 RT 6363, 6365-6366; 23 RT 6625; see also 2 Aug. CT
550-551.) Using the GPR device, Hanes found anomalies in four of
the grids – grids 1, 3, 6, and 10. (23 RT 6367.) Of the four, only
grids 1 and 3 were underneath the deck. (22 RT 6366-6367.)
The anomaly in grid 1 was 6 feet high, 4 feet wide, and 3.5
to 4 feet deep – similar in size to what Hanes had previously
observed at clandestine burial sites. (22 RT 6368-6370.) The
anomaly went from surface to depth, suggesting the area may
have been dug out and refilled. (22 RT 6368-6369.) Hanes could
not take his GPR unit to the area immediately to the left of grid 1
because the deck did not provide enough clearance space in that
area. (22 RT 6381; 2 Aug. CT 546-547; see also 23 RT 6695-6696.)
At Hanes’s recommendation, sheriff deputies excavated all
four grids which contained anomalies. (22 RT 6371.) Excavation
area 2 corresponded with the anomaly in grid 1. (22 RT 6372; 23
RT 6626.) In this area, Arrington saw staining which appeared
darker than the surrounding soil. (23 RT 6614-6615, 6627, 6631.)
The staining indicated to Arrington that a decomposing body had
once been present. (23 RT 6613-6614.) When an unwrapped body
decomposes, it emits fluids which form an oval shaped stain
around the body. (23 RT 6613-6614, 6673.) Other organic material
may cause similar staining. (23 RT 6675.) Arrington equated the
stains to bathtub ring stains in that they leave a ring around the
body. (23 RT 6673, 6675.)
The staining in excavation area 2 began around two feet
down and continued to just below the four-foot mark. (23 RT
6628, 6668.) The staining was jumbled, rather than continuous.
(23 RT 6627-6628.) Arrington interpreted this to mean the soil
had been dug out, then put back. (23 RT 6628, 6675-6676.) The
absence of mechanical marks suggested the hole had been dug
manually. (23 RT 6630.) Arrington saw no staining in the other
three excavation areas. (23 RT 6681-6682.)

- 38 -
 Sheriff deputies found no human bones in excavation area
2. (23 RT 6670.) Arrington acknowledged that, if a body were
placed directly in the ground, it would be unusual to find no
bones or other human remains at the burial site. (23 RT 6688.) At
trial, Arrington posited that the body could have been wrapped in
a tarp with a small hole in it – allowing fluids to leak out while
the bones remained encased in the tarp. (23 RT 6670-6671, 6689.)
Arrington previously told Detective Cole that plant material may
have caused some of the staining, since she noticed roots coming
through the walls of the excavated areas. (23 RT 6686, 6699.) The
excavations yielded no evidence of any tarp. (23 RT 6689.)
On April 13 and 14, 2021, sheriff deputies returned to 710
White Court to do additional work on grid 1, excavation area 2.
(25 RT 7224.) This time, they removed part of the deck, enabling
them to excavate the previously inaccessible area. (25 RT 7224.)
Hanes ran his GPR machine over that area and determined that
the anomaly did not continue into it. (22 RT 6398.)
At trial, the prosecutor argued that appellant and Ruben
buried Smart’s body under the deck, but moved it after the
February 5, 2020 search. (39 RT 11440, 11471-11473.)
K. Testing on soil specimens from White Court
Shelby Liddell, a forensic specialist with the Sheriff
Department, took soil specimens from the different excavations at
White Court. (25 RT 7210, 7231-7234, 7268-7271.) In excavation
area 2, Liddell focused on the portions of soil which had the
darkest stains. (25 RT 7217-7218, 7220, 7235.)
Some soil specimens contained red, blue, brown, and black
fibers. (26 RT 7515; 30 RT 8732.) The black fibers, and some of
the blue ones, appeared to be cotton. (26 RT 7516, 7524, 7527.)
Other fibers appeared to be a synthetic fabric like polyester. (26
RT 7516.) There were also light colored fibers which could have
originally been white. (26 RT 7525.)

- 39 -
 The HemDirect is a test used to detect hemoglobin, a
protein contained in human blood. (28 RT 8280.) Angela Butler, a
forensic DNA analyst, used the HemDirect to look for hemoglobin
in the soil specimens. (28 RT 8265, 8280; see, e.g., 30 RT 8713-
8714, 8728, 8732, 8734-8735.) She obtained positive or weak
positive results on 13 specimens – all from excavation area 2. (30
RT 8708, 8713-8714, 8727-8728, 8732, 8734, 8737-8738; see also
25 RT 7218, 7221, 7230, 7242-7243.) Some specimens from this
same area tested negative. (30 RT 8714, 8732, 8734-8735.)
Dr. Elizabeth Johnson, a forensic DNA consultant who
testified for appellant, believed the HemDirect results were
unreliable. (33 RT 9743, 9796-9797.) No known studies have
looked at the HemDirect’s accuracy when applied to soil samples.
(33 RT 9778, 9791.) In addition, blood degrades quickly when
exposed to the elements – with one study showing significant
degradation after just four weeks. (33 RT 9773, 9784.) The
HemDirect works poorly on degraded samples. (33 RT 9773-
9774.) The pH level of the sample may also affect the test’s
accuracy. (33 RT 9792.) In this case, the pH level from the soil
specimens was not obtained. (33 RT 9793.)
The defense also called Dr. David Carter, a professor of
forensic sciences who has taught at the University of Nebraska
and Chaminade University in Hawaii. (33 RT 9611-9616.)
Carter’s principle area of focus lies in forensic taphonomy – the
study of decomposition. (33 RT 9611, 9614-9615.) Carter viewed
photographs taken during the excavations at 710 White Court.
(33 RT 9634.) He found the soil stains inconsistent with what he
had seen at burial locations, but consistent with a natural
formation known as lamellae. (33 RT 9667.) Carter saw no
indication that a decomposing body had once been present
underneath the deck. (33 RT 9642.)

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L. Mike McConville’s cargo trailer
In April, 2021, sheriff deputies seized Mike McConville’s
cargo trailer and applied a chemical called BlueStar to its
interior. (25 RT 7249-7253, 7260.) BlueStar causes a blue glow
when blood is present. (25 RT 7252.) Paint and bleach with
chlorine in it may produce a false positive. (25 RT 7255.)
The Bluestar reacted positively to an area near the trailer’s
side door. (25 RT 7254.) Sheriff detectives cut out a section of
plywood from that area. (25 RT 7256.) A presumptive blood test
yielded negative results on all but one very small portion of the
plywood. (30 RT 8739-8740.) DNA testing on the blood excluded
appellant, Ruben, and Smart. (30 RT 8741-8742.) McConville was
included as a possible contributor. (30 RT 8742.)
ARGUMENT
I.
The trial court violated appellant’s Sixth
and Fourteenth Amendment right to the
unanimous verdict of 12 impartial jurors
by repeatedly declining to remove a juror
who had lost her ability to remain neutral
and abide by her oath.
During key prosecution testimony, Juror No. 273 had a
dramatic emotional outburst causing other jurors to rush to
console her. Afterwards, she told the bailiff she had begun to view
appellant as guilty. On two other occasions, the same juror told
the court she was experiencing anxiety due to defense counsel’s
aggressive questioning of prosecution witnesses. Despite these
incidents, the trial court denied appellant’s repeated requests to
discharge Juror No. 273. Its actions deprived appellant of the
unanimous verdict of 12 fair and impartial jurors. The error
requires per se reversal of appellant’s conviction.

- 41 -
A. Background
1. Juror No. 273 expresses anxiety after defense
questioning of Steven Fleming
During a break following the defense lawyers’ cross-
examination of Steven Fleming, Juror No. 273 asked the bailiff if
she could speak with the court. (7 RT 1846.) The juror informed
the court that she was experiencing anxiety and tension which
she attributed to the “aggressiveness” and repetitiveness of the
questioning. (7 RT 1847.) Juror No. 273 volunteered that both her
parents were in law enforcement but she denied any bias and
denied that her concerns were directed at any particular person.
(7 RT 1847-1848.)
Appellant’s counsel requested Juror No. 273’s removal. (7
RT 1851-1852.) He noted that the juror’s parents worked in law
enforcement and that her anxiety arose during his “aggressive
questioning” of Fleming, a former police officer. (7 RT 1851-1852.)
The prosecutor and court characterized Juror No. 273’s demeanor
as “cordial” and “pleasant” – with the prosecutor adding that she
was smiling while speaking with the court. (7 RT 1852-1853.) The
court found no evidence of bias and declined to remove the juror.
(7 RT 1853.) However, it urged Juror No. 273 to alert the court if
her anxiety again caused her difficulties. (7 RT 1848.)
2. Juror No. 273’s emotional outburst
Around a month after Fleming’s cross-examination, Cindy
Arrington testified for the prosecution. (31 CT 9044, 9285.) On
direct examination, Arrington described the “decomposition ring”
which a dead body produces when it releases fluids into the
surrounding soil. (23 RT 6634.) Juror No. 273 interrupted to say,
“Your Honor, I need a break.” (23 RT 6634.) The court took an
immediate recess at 11:43 a.m. (23 RT 6634-6635.)
Outside the jury’s presence, the court stated that Juror No.
273 had been “audibly crying” and gave a “gasp and cry” after

- 42 -
Arrington’s most recent answer. (23 RT 6635.) Defense counsel
referred to the juror’s actions as “a major, major disruption”
which drew the attention of other jurors. (23 RT 6645.) Several
tried to comfort Juror No. 273. (23 RT 6645, 6659.) Counsel said
that, in 49 years of doing jury trials, he had never seen a larger
“emotional outburst” than Juror No. 273’s. (23 RT 6645.)
After the lunch break, the courtroom bailiff related that he
had spoken to Juror No. 273 during the recess. (23 RT 6640.) The
juror told him she had been “completely neutral” until Arrington’s
testimony but now “felt for the first time that there could be
guilt.” (23 RT 6640, 6655.)
Around 1:15 p.m., Juror No. 273 returned to the courtroom
for a hearing outside the presence of other jurors. (23 RT 6635,
6646-6647.) The trial court told Juror No. 273 it was “not unusual
. . . to have an emotional response to things that happen during
trial.” (23 RT 6647.) It then admonished her to, among other
things, “keep an open mind throughout the trial” and not be
influenced by bias or sympathy. (23 RT 6648.) Juror No. 273
proclaimed that she could render a fair, impartial, and unbiased
verdict based on the evidence and arguments. (23 RT 6650-6652.)
Juror No. 273 admitted telling the bailiff that the evidence
had begun to “affect [her] emotional state.” (23 RT 6653.) She also
told the bailiff that, after Arrington’s testimony, she now felt
“there could be an opening for [guilt].” (23 RT 6655.) However,
Juror No. 273 insisted she remained unbiased, had not come to
any decision, and still believed “a person is not guilty until proven
guilty.” (23 RT 6653-6656.)
Defense counsel again asked to have Juror No. 273
discharged. (23 RT 6643, 6658-6659.) The trial court denied the
request, stating that it found the juror honest and believed she
was trying her “best to do a good job here.” (23 RT 6658-6659,

- 43 -
6661.) The court concluded that Juror No. 273 remained “able to
keep an open mind.” (23 RT 6661.)
3. Juror No. 273 again asks for a break
Later in trial, Juror No. 273 submitted another note which
asked for a “short break” due to anxiety. (36 CT 10584.) At a
follow-up hearing, Juror No. 273 cited the defense’s “aggressive”
questioning of a female witness as the cause of her distress. (28
RT 8287, 8289.) Jennifer Hudson was the only female witness
subject to defense questioning that day. (See 32 CT 9373-9374.)
The court asked Juror No. 273 if the day’s events had
impaired her ability to remain neutral and keep an open mind.
(28 RT 8288-8289.) The juror replied, “Do you mind if I have a
second to think about it?” (28 RT 8289.) She then expressed
concern about counsel’s repetitive questions. (28 RT 8289.) The
juror denied that counsel’s actions would impact her ability to be
fair and impartial. (28 RT 8289-8290.)
Defense counsel argued that the three incidents with Juror
No. 273 revealed a pattern of bias against the defense and in
favor of law enforcement. (28 RT 8291-8293.) The prosecutor
countered that defense counsel had brought on the juror’s
concerns by engaging in “hostile” questioning even after Juror No.
273 made known that it bothered her. (28 RT 8293.) The court
again denied appellant’s request to discharge the juror, stating
that it found no evidence she “cannot be fair and impartial.” (28
RT 8291-8293, 8299.)
4. Juror No. 273’s Pinterest page and conversations
outside the courtroom
Late in trial, the court learned that Juror No. 273 had a
Pinterest page with various home improvement tips, including
one on testing soil pH. (37 RT 10807-10808.) Juror No. 273 said

- 44 -
the tips pre-dated her selection as a juror in this case.3 (37 RT
10812-10813.)
Juror No. 273 denied performing online research about
appellant’s case. (37 RT 10819.) She volunteered that she knew
people who had listened to the podcast but that they understood
“they cannot tell me anything and I do not ask anything.” (37 RT
10820.) When others had started to tell her about the podcast, the
juror made clear she could not talk about it. (37 RT 10820.)
Defense counsel referred to the juror’s comment as a “red flag”
since it showed that she and her friends had at least discussed
her presence on appellant’s jury. (37 RT 10825-10826.)
Defense counsel once again unsuccessfully requested Juror
No. 273’s removal. (37 RT 10824, 10828.) In issuing its ruling, the
trial court cited Juror No. 273’s denial that she had talked to
friends about the case or podcast. (37 RT 10826, 10828.) The court
expressed the view that this was a long trial, that all jurors had
missed extensive work, and that “it would be strange if no one
knew why.” (37 RT 10826-10827.)
B. Standard of review
When the trial court denies a party’s request to discharge a
juror, its ruling “is reviewed for abuse of discretion and will be
upheld if supported by substantial evidence.” (People v. Holloway
(2004) 33 Cal.4th 96, 124-125.) An abuse of discretion occurs
when the ruling “exceeds the bounds of law or reason.” (People v.
Bell (1998) 61 Cal.App.4th 282, 287.) To warrant discharge, “the
juror’s bias . . . must appear in the record as a demonstrable
reality.” (Holloway, at p. 125.)

3
Appellant mentions Juror No. 273’s Pinterest activities for
background purposes only.
- 45 -
C. If even a single juror lacks the ability to be fair and
impartial, the resulting conviction violates the
accused’s constitutional right to jury trial and
requires per se reversal.
Under the Sixth and Fourteenth Amendments, a defendant
in a criminal case has a right to a unanimous verdict of fair and
impartial jurors. (Morgan v. Illinois (1992) 504 U.S. 719, 726
(Morgan); Ramos v. Louisiana (2020) 590 U.S. 83, 93.) Article I,
section 16 of the California Constitution contains a similar
guarantee. (Ballard v. Uribe (1986) 41 Cal.3d 564, 589; People v.
Daniels (2017) 3 Cal.5th 961, 1018.)
“An impartial juror is someone ‘capable and willing to
decide the case solely on the evidence’ presented at trial.” (People
v. Nesler (1997) 16 Cal.4th 561, 581.) Impartiality also requires
an ability to make a dispassionate adjudication of guilt,
unaffected by sympathy, bias, or prejudice. (People v. Tidwell
(1970) 3 Cal.3d 62, 73; § 1127h.) “[I]f even a single juror” lacked
the ability to render a fair and impartial verdict, the conviction
cannot stand. (People v. Harris (2008) 43 Cal.4th 1269, 1303; see
also Dyer v. Calderon (9th Cir. 1998) 151 F.3d 970, 973.) Because
the right to an impartial adjudicator “goes to the very integrity of
the legal system,” an infringement of that right “can never be
treated as harmless error.” (Gray v. Mississippi (1987) 481 U.S.
648, 668 (Gray); see also Nesler, at p. 579.)
Penal Code section 1089 permits a trial court to replace a
sitting juror with an alternate upon a showing of “good cause” to
believe the juror is “unable to perform his or her duty.” When a
juror loses the ability to remain fair and impartial, good cause
exists for that juror’s removal. (People v. Barton (2020) 56
Cal.App.5th 496, 508.) Similarly, the court may remove a juror for
“actual bias” – a “state of mind . . . in reference to the case, or to
any of the parties, which will prevent the juror from acting with
entire impartiality, and without prejudice to the substantial

- 46 -
rights of any party.” (Code Civ. Proc., § 225, subd. (b)(1)(C);
People v. Romero (2017) 14 Cal.App.5th 774, 780-781 (Romero).)
D. The trial court abused its discretion by denying
appellant’s second, third, and fourth requests to
discharge Juror No. 273.
During trial, appellant made four separate requests to
dismiss Juror No. 273 from the panel. His first request came
early in trial, after the juror revealed that counsel’s “aggressive[]”
and repetitive questioning was causing her anxiety. (7 RT 1847.)
The juror did not mention any attorney by name but the only
questioning which had occurred that morning was the defense’s
cross-examination of Steven Fleming. (See 31 CT 9044-9045.)
When asked about her anxiety, Juror No. 273 insisted she
remained free of bias. (7 RT 1847.)
Appellant assumes without conceding that, on this first
occasion, the trial court could reasonably have chosen to take
Juror No. 273 at her word rather than immediately discharging
her. On the other hand, by the time of the later incidents, it had
become readily apparent that Juror No. 273 could not follow the
court’s orders or serve as a fair and unbiased juror.
Defense counsel’s second request to dismiss Juror No. 273
came after her disruptive outburst in the middle of Cindy
Arrington’s testimony. (23 RT 6634, 6643.) “[A] juror’s emotional
reaction, while relevant, is not automatically disqualifying.”
(People v. Ramirez (2022) 13 Cal.5th 997, 1057.) Juror No. 273’s
breakdown, however, went well beyond a natural emotional
reaction to graphic or upsetting testimony. According to the court
and counsel, the juror let out a gasp, loudly burst into tears, and
demanded a break as other jurors came to check on her well-
being. (23 RT 6634-6635, 6659.) Defense counsel called the
outburst the most dramatic he had seen by a juror in 49 years of
trial practice. (23 RT 6645.)

- 47 -
 To make matters worse, Juror No. 273 spoke to the bailiff
after her outburst and confided that, while she had previously
remained neutral, she had now come to believe “there could be
guilt.” (23 RT 6640, 6655.) Though she later recanted, and
professed her ability to remain fair and unbiased (23 RT 6650-
6652), the trial court must look beyond the juror’s own statement.
(Romero, supra, 14 Cal.App.5th at p. 782.) A juror “could in all
truth and candor” believe herself capable of impartiality, yet be
very wrong in her self-assessment. (Morgan, supra, 504 U.S. at p.
735.) Here, Juror No. 273 had the benefit of a roughly 90-minute
break in which to gather herself before she spoke to the court and
counsel. (23 RT 6635.) Her extemporaneous statements to the
bailiff revealed far more about her state of mind than her
carefully considered statements to the court.
Moreover, Juror No. 273 did not merely tell the bailiff that
she now felt there could be an “opening” for guilt. (23 RT 6655.)
She actually drew a contrast between her previous neutrality and
her feelings after hearing Arrington’s testimony. (23 RT 6655.)
The unmistakable implication was that Juror No. 273 believed
she had lost the capacity for neutrality as a result of Arrington’s
testimony. The juror’s statements, coupled with the intensity of
her outburst, revealed to a demonstrable reality that she had
become too emotionally invested in the case to remain
dispassionate and free of bias. (23 RT 6650-6652.)
Even if Juror No. 273 had not yet made up her mind on the
ultimate issue of guilt, her response to Arrington’s testimony
revealed that she had at least made up her mind about a key
prosecution contention: that the soil stains came from human
decomposition fluid. After all, if Juror No. 273 remained open to
the possibility of a different explanation, she would have had no
reason to react so emotionally or to say that she now saw an
opening for guilt.

- 48 -
 In point of fact, the two defense experts sharply disputed
Arrington’s claims that the soil stains came from human
decomposition fluids. (23 RT 6613-6614.) Dr. David Carter took
explicit issue with Arrington’s finding. (33 RT 9667.) Dr.
Elizabeth Johnson disputed Arrington’s findings implicitly by
testifying that the HemDirect blood results could not be trusted
when obtained from soil specimens. (33 RT 9743, 9796-9797.)
This defense testimony could do little good if one juror had
already closed her mind to the possibility that the soil stains
derived from something other than human remains.
In addition to showing that she had lost the ability for
neutrality, Juror No. 273’s statements to the bailiff violated two
court orders, both given throughout trial. The first order told
jurors not to discuss the case with anyone until deliberations
began. The second warned them not to make up their minds
“about a verdict or any issue” until deliberation time. (See, e.g., 1
RT 15, 19; 2 RT 306-307, 356; 3 RT 663, 717-718; 4 RT 955, 1004.)
Both violations constituted misconduct in their own right and
grounds for the juror’s discharge. (See, e.g., In re Bell (2017) 2
Cal.5th 1300, 1306 [juror misconduct to “discuss[] the case with
nonjurors during trial”]; People v. Weatherton (2014) 59 Cal.4th
589, 598 [prejudging guilt “constitutes serious misconduct”].)
Furthermore, by speaking to the bailiff about the case, Juror No.
273 showed that she could not “be trusted to follow the court’s
instructions going forward.” (People v. Peterson (2020) 10 Cal.5th
409, 474; see also People v. Daniels (1991) 52 Cal.3d 815, 865.)
As it turned out, Juror No. 273 did discuss the case outside
the deliberation room on at least one other occasion. Late in trial,
she revealed that she had friends who knew of her presence on
appellant’s jury. (37 RT 10820.) As defense counsel observed,
these friends could not have known this unless Juror No. 273
violated her oath by mentioning it to them. (37 RT 10826.) Yet,

- 49 -
the trial court minimized her violation, implying that it was
permissible to tell people which case she was on so they would
know why she had missed so much work. (37 RT 10827.) In fact,
only the juror’s employer needed to know why she had missed
three months of work. And even the employer did not need to
know the name of the case; they merely needed to know the trial’s
expected length.
In between her in-court outburst, and her disclosure that
she had spoken to friends about her service in this case, Juror No.
273 asked for yet another break due to “anxiety.” (36 CT 10584.)
This time, she specifically mentioned “the questioning of the
Defense” – an apparent reference to counsel’s cross-examination
of Jennifer Hudson. (28 RT 8287; see also 28 RT 8289 [referring
to witness as “her”].) As she had previously done, the juror said
her anxiety stemmed from counsel’s “aggressive” questioning and
from her belief that he kept “ask[ing] the same question over and
over again.” (28 RT 8287, 8289.)
The prosecutor blamed defense counsel for Juror No. 273’s
anxiety – faulting him for continuing to engage in combative
questioning despite knowing that it bothered the juror. (28 RT
8294.) But to demand that counsel pull his punches in order to
lessen Juror No. 273’s distress was to demand that he provide
less zealous representation than he would provide in a trial
without that same juror. The prosecutor’s demand only
underscored appellant’s inability to receive a fair trial with Juror
No. 273 on his panel. A juror who experiences serious anxiety
simply because defense counsel conducts a withering cross-
examination, or because she sees evidence which she believes
consistent with guilt, is not a juror who can be trusted to
dispassionately evaluate the accused’s guilt in a murder case.
Indeed, when asked about her ability to remain neutral
following defense counsel’s aggressive questioning of Hudson,

- 50 -
Juror No. 273 vacillated and requested “a second to think about
it.” (28 RT 8289.) Even after doing so, the juror initially avoided
answering the court’s question – instead complaining about
defense counsel’s repetitive cross-examination. (28 RT 8289.)
Only after the court asked her a second time did the juror assert
her ability to remain fair and impartial. (28 RT 8290.)
The picture which emerged from the four incidents was of a
juror who grew up in a pro-law enforcement environment, had
come to believe that appellant was guilty, and experienced
significant anxiety by what she perceived as overly vigorous
defense attempts to challenge the prosecution evidence. After the
first incident, that picture may still have been fuzzy enough for
the court to keep Juror No. 273 on the panel. But, with each
additional interruption, it became increasingly clear that the
juror’s sympathy for Smart, and hostility to the defense, impeded
her ability to render a fair and impartial verdict or even follow
the court’s orders not to discuss the case before deliberations.
By denying appellant’s last three requests to dismiss Juror
No. 273 from the panel, the trial court abused its discretion and
violated appellant’s constitutional right to the unanimous verdict
of 12 fair and impartial jurors. Its rulings constituted structural
error, which requires automatic reversal of appellant’s murder
conviction. (Romero, supra, 14 Cal.App.5th at p. 783; Gray, supra,
481 U.S. at p. 668.)
II.
Because there was no evidence that
appellant sexually assaulted Smart, the
trial court abused its discretion, and
violated the Fourteenth Amendment’s due
process clause, by admitting inflammatory
evidence of two uncharged rapes.
Over objection, the trial court allowed the prosecutor to call
two female witnesses to show that appellant had a history of
drugging and sexually assaulting women. The court admitted the
- 51 -
women’s testimony on the rationale that the prosecution alleged a
felony-murder in the commission of rape or attempted rape. But
just because the prosecution proceeds on a felony-murder rape
theory does not mean they become automatically entitled to bring
in uncharged sex offenses. Instead, there must be some threshold
showing that a sexual assault actually occurred in the present
case. Here, there was none. By admitting this irrelevant and
extraordinarily prejudicial testimony, the trial court abused its
discretion and committed reversible error.
A. Background
1. Prosecutor’s motion to amend complaint
Before the preliminary hearing, the prosecutor moved to
amend the complaint to add two counts of rape by use of drugs. (2
CT 466-470, 533-535.) One count arose from the 2011 incident
with S.D. (2 CT 469.) The other stemmed from similar allegations
made by D.W. (2 CT 469.)
The court denied the prosecutor’s motion to amend, finding
that the rape incidents were “extremely inflammatory” and would
not be cross-admissible on the murder count. (5 CT 1324-1332.)
The court contrasted appellant’s case with published cases which
have found uncharged sex offenses admissible to prove a felony-
murder rape allegation. (5 CT 1328-1330.) It noted that, in all
published cases, direct or forensic evidence showed that the
homicide victim had been sexually assaulted. (5 CT 1328-1330.)
In this case, the court found 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.)
The judge who ruled on the prosecutor’s motion to amend
also presided at the preliminary hearing – though not at trial. (5
CT 1292; 10 CT 2873.)

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2. Prosecutor’s in limine motion to introduce
uncharged sex offenses
SEALED MATERIAL (28 CT 8226; 29 CT 8640-8643)

- 53 -
 END OF SEALED MATERIAL
The trial court relied on the preliminary hearing record in
making its in limine rulings. (See, e.g., 1 Aug. RT 86, 99; 6 Aug.
RT 1588.) The court found six uncharged incidents inadmissible
for both character and non-character purposes. (6 Aug. RT 1594-
1597, 1599-1600.) As to three of the six incidents, the court ruled
that the allegations did not meet the definition of a sexual offense
even if true. (6 Aug. RT 1594.) The court excluded another
incident because the alleged victim was unavailable to testify. (6
Aug. RT 1599-1600.) It excluded two claims of unwanted kissing
as more prejudicial than probative. (6 Aug. RT 1596-1597.)
The court admitted the testimony of Ra.D., Ro.D., and S.D.
for propensity purposes. (6 Aug. RT 1597.) It elaborated that all
three women: (1) were around appellant’s age; (2) told police that
appellant had isolated them at bars near closing time; (3) claimed
to have been drugged or intoxicated to the point of incapacitation;
and (4) claimed appellant took them back to his home for
nonconsensual sex. (6 Aug. RT 1597-1598.)
The court acknowledged there was no “direct evidence” that
Smart was sexually assaulted. (6 Aug. RT 1598.) It nonetheless
found that Evidence Code section 1108 applied in “the unique
circumstances of this case, where it is impossible to produce

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direct evidence of a sexual assault but where the People intend to
introduce circumstantial evidence of an assault.” (6 Aug. RT
1598.) The court also admitted Ra.D., Ro.D. and S.D.’s testimony
under Evidence Code section 1101, subdivision (b) to show intent
and common plan or scheme. (6 Aug. RT 1599.) Only S.D. and
Ro.D. ended up testifying in front of the jury.
The trial court initially excluded all evidence found on
appellant’s computer. (6 Aug. RT 1600-1602.) Over objection, it
later allowed the prosecutor to introduce one still photo – Exhibit
458 – from the ball gag video. (32 RT 9416-9417, 9420-9426.)
B. Standard of review
“A trial court’s decision to admit or exclude evidence is
reviewable for abuse of discretion.” (People v. Vieira (2005) 35
Cal.4th 264, 292.) Such discretion “is by no means a power
without rational bounds.” (People v. Rist (1976) 16 Cal.3d 211,
219.) The concept of judicial discretion requires “the exercise of
discriminating judgment within the bounds of reason . . . to
[reach] an informed, intelligent and just decision.” (In re Cortez
(1971) 6 Cal.3d 78, 85-86.)
C. Though uncharged offense evidence is generally
inadmissible, Evidence Code section 1108 permits its
introduction when the defendant is charged with a
sexual offense.
Evidence Code section 1101, subdivision (a) codifies the
centuries-old rule excluding evidence of an accused’s criminal
propensity. (People v. Falsetta (1999) 21 Cal.4th 903, 913
(Falsetta).) This rule exists, not because character evidence lacks
probative value, “but because it has too much.” (People v. Alcala
(1984) 36 Cal.3d 604, 630-631, original italics.) A jury which
hears of the accused’s past offenses will likely “give excessive
weight to the vicious record of crime thus exhibited, and either . .
. allow it to bear too strongly on the present charge, or . . . take
the proof of it as justifying a condemnation irrespective of guilt of

- 55 -
the present charge.” (People v. Schader (1969) 71 Cal.2d 761, 772,
fn. 6, internal quotations omitted.)
In cases alleging a “sexual offense,” Evidence Code section
1108, subdivision (a) “creates a narrow exception” to the general
ban on character evidence. (People v. Cottone (2013) 57 Cal.4th
269, 285.) That exception permits jurors to consider evidence of
the defendant’s other “sexual offenses” as “evidence of [his]
disposition to commit such crimes.” (Falsetta, supra, 21 Cal.4th at
p. 912.) The rationale behind this rule is that propensity evidence
is “uniquely probative” in sex cases. (People v. Britt (2002) 104
Cal.App.4th 500, 505-506 (Britt).) As our state Supreme Court
has observed, “a history of similar [sex crimes] . . . shows an
unusual disposition of the defendant . . . that simply does not
exist in ordinary people.” (Cottone, at p. 285.)
Even if evidence is admissible under Evidence Code section
1108, the trial court must balance its prejudicial effect against its
probative value. (Falsetta, supra, 21 Cal.4th at p. 917; Evid. Code,
§ 352.) The Fourteenth Amendment’s due process clause requires
a similar weighing process. (United States v. Lemay (9th Cir.
2001) 260 F.3d 1018, 1026-1027.) When evidence gives rise to “no
permissible inferences” and is “of such quality as necessarily
prevents a fair trial,” its admission violates due process. (Jammal
v. Van de Kamp (9th Cir. 1991) 926 F.2d 918, 920 (Jammal),
original italics; see Estelle v. McGuire (1991) 502 U.S. 62, 75
(Estelle) [admission of evidence violates due process when it
“infuse[s] the trial with unfairness”].)
D. Although Evidence Code section 1108 may apply in
felony-murder rape cases, a prosecutor’s bare
allegation of rape is insufficient to trigger the
statute’s application.
Although the information did not directly charge appellant
with committing a sexual offense, it alleged a felony-murder in
the commission or attempted commission of a rape. (10 CT 2867-

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2868.) In People v. Story (2009) 45 Cal.4th 1282, 1294 (Story), our
state Supreme Court held that Evidence Code section 1108
applies to felony-murder cases with a sexual offense as the target
crime. The Court has characterized the need for uncharged
offense evidence as “especially compelling” in such cases since the
sexual assault victim is no longer alive to testify about the
incident. (People v. Avila (2014) 59 Cal.4th 496, 515 (Avila);
People v. Daveggio and Michaud (2018) 4 Cal.5th 790, 824
(Daveggio); People v. Baker (2021) 10 Cal.5th 1044, 1099-1100
(Baker); see also People v. Loy (2011) 52 Cal.4th 46, 62 (Loy)
[victim’s death made uncharged offense evidence “all the more
necessary”].)
The common link between the above cited cases is that, in
each one, the felony-murder rape theory rested on more than just
a bare allegation. The theory had actual support in the evidence.
In Story, for instance, the deceased victim was found on her bed
wearing only a football jersey but no pants. (Story, supra, 45
Cal.4th at p. 1285.) The sheet contained a large semen stain and
an autopsy showed white discharge, but no sperm, in the victim’s
vagina. (Id. at pp. 1285-1286.) The defendant had received a
vasectomy, which would have explained the absence of sperm. (Id.
at p. 1286.)
Similarly, in Avila, supra, 59 Cal.4th at p. 500, police found
the victim’s nude body and an autopsy showed she had been
sexually assaulted. In Loy, supra, 52 Cal.4th at p. 53, an autopsy
of the victim’s “badly decomposed” body revealed vaginal bleeding
and a cause of death which the pathologist described as “the most
common sex-associated way of killing people.” Other evidence in
Loy showed the defendant had engaged in sexual touching of the
victim on previous occasions. (Id. at p. 54.)
In Daveggio, supra, 4 Cal.5th at pp. 813-814, the victim
suffered “deep bruising” to her buttocks and a curling iron, found

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in the defendants’ van, contained both blood and apparent fecal
matter. A swab from the curling iron returned a DNA profile
which matched the victim’s – suggesting the item had been used
for anal penetration. (Id. at pp. 813-814.)
Finally, in Baker, supra, 10 Cal.5th at p. 1060, the victim’s
body was found in the desert with her pants pulled down and her
bra underneath her body. A partial DNA profile from her
underwear matched the defendant’s profile and several items at
the victim’s apartment tested positive for semen and for the
defendant’s DNA. (Id. at pp. 1062-1063.)
Also instructive is Matthews v. Superior Court (1988) 201
Cal.App.3d 385 (Matthews). There, the court admitted two
uncharged rapes to prove a special circumstance rape allegation.
(Id. at pp. 388, 391.) The evidence showed that two years after
the killing, police found the victim’s bones and a strand of rope.
(Id. at p. 389.) The defendant told police he was drunk but
recalled seeing the victim’s nude body and believing he had killed
her with a rope. (Id. at p. 391.) In a subsequent statement, he
claimed he tied up the victim for consensual sex but she
accidentally choked to death during the encounter. (Ibid.)
The defendant argued that it was error to admit the two
uncharged incidents since the evidence showed only a consensual
encounter in the charged case. (Matthews, supra, 201 Cal.App.3d
at p. 393.) The Court of Appeal disagreed, finding that the
defendant’s statements gave rise to an “inference of forced sexual
relations” despite his claim that the victim consented. (Ibid.)
On the other hand, when no evidence suggests that the
defendant committed a sexual offense in the charged case, the
uncharged offense evidence loses its “uniquely probative” value.
(Britt, supra, 104 Cal.App.4th at pp. 505-506.) The burden lies
with the proponent of evidence to establish its relevancy and to
overcome any rule which would generally exclude it. (People v.

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Morrison (2004) 34 Cal.4th 698, 724.) “When the relevance of
proffered evidence depends on the existence of a preliminary fact,
the proponent of the evidence has the burden of producing
evidence as to the existence of that preliminary fact.” (People v.
Bacon (2010) 50 Cal.4th 1082, 1102.)
In People v. Hoyos (2007) 41 Cal.4th 872, 912-913 (Hoyos),
the defendant shot his victim in the back of the head after she
took refuge in the bathroom with her three-year old son. At trial,
the defendant sought to introduce evidence of the victim’s violent
character. (Id. at p. 911.) The trial court excluded this evidence
because the record showed no possibility the defendant could
have perceived the victim as a threat on his life – as required to
show any form of self-defense. (Id. at pp. 912-913.) The California
Supreme Court affirmed, observing that, “even if the murder
victim were the most violent person in the world, that fact would
not be relevant” without threshold evidence that the defendant
acted in self-defense. (Id. at p. 913.)
In a similar vein, a defendant who wishes to present third
party culpability evidence must make a foundational showing
which links the third person to “the actual perpetration of the
crime.” (People v. Hall (1986) 41 Cal.3d 826, 833.) Otherwise, the
third party culpability evidence is irrelevant and may not come
before the jury. (Ibid.)
The same rules apply when the prosecution seeks to bring
in generally inadmissible evidence to support the charges or
allegations. Prosecutors who wish to introduce such evidence
must do more than just declare their intent or desire to proceed
on a theory for which the proffered evidence would be relevant.
They must demonstrate “some evidentiary support” for that
theory. (Hoyos, supra, 41 Cal.4th at pp. 912-913.)
In People v. Albarran (2007) 149 Cal.App.4th 214, 217,
Division Seven of this Court reversed the defendant’s attempted

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murder conviction due to the erroneous admission of gang
evidence. The court found no basis for admitting the gang
evidence to show motive and intent, since “nothing inherent in
the facts of the shooting . . . suggest[ed] any specific gang motive.”
(Id. at p. 227.) Instead, the prosecutor had simply tried to fashion
a motive out of the gang evidence itself. (Ibid.) The court rejected
this attempt to use inflammatory and otherwise inadmissible
evidence “to create a motive not otherwise suggested by the
evidence.” (Id. at pp. 225-226.)
Just as gang evidence is inadmissible when the facts do not
inherently suggest any gang motive, uncharged sexual offenses
are inadmissible when the facts do not inherently suggest the
defendant committed any sexual offense in the present case. To
paraphrase the discussion in Hoyos, even if the defendant were
the most habitual sex offender in the world, that fact can give rise
to no permissible character inference unless the evidence provides
reason to believe that a sexual offense took place in the charged
case. Evidence Code section 1108 does not permit jurors in non-
sex cases to hear evidence of the defendant’s propensity to
commit sex crimes.
E. As the prosecutor made no threshold showing that
appellant committed a sexual offense against Smart,
the trial court abused its discretion by admitting the
uncharged offense evidence under Evidence Code
section 1108.
The prosecutor theorized that, at the end of the Crandall
Way party, appellant isolated Smart and took her back to his
dorm room for sex after she had drunk or been drugged to the
point of incapacitation. (See, e.g., 5 CT 1299-1300; 39 RT 11441,
11488-11496.) The trial court found S.D. and Ro.D.’s testimony
probative of this theory since it showed that appellant had a
pattern of engaging in similar activity toward young, intoxicated
women at bars and social settings. (6 Aug. RT 1597-1598.)

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 Appellant does not dispute that S.D. and Ro.D.’s testimony
was consistent with the prosecutor’s case theory. But that does
not end the inquiry. The case theory must also have independent
factual support. And, aside from S.D. and Ro.D.’s testimony, no
evidence supported the theory that appellant raped or attempted
to rape Smart. The magistrate who presided at the preliminary
hearing made exactly this point when he found the would-be rape
charges inadmissible on the murder count. (5 CT 1324-1332.) In
doing so, he emphasized that there was “no offer of proof of
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.)
The magistrate’s observations occurred before the
preliminary hearing but they remained no less true afterwards.
The testimony at the preliminary hearing did show that Smart
drank to the point of incapacitation. (See, e.g., 14 CT 4064, 4066,
4072-4073, 4131.) It also showed that appellant ended up alone
with Smart after Davis and Anderson went home. (11 CT 3163,
3170-3171.) But the prosecution presented no evidence that any
sexual contact ever took place between appellant and Smart.
Notably, the magistrate at the preliminary hearing made
no probable cause determination as to the rape or attempted rape
of Smart. (See People v. Leon (2015) 61 Cal.4th 569, 596 [probable
cause standard applies at preliminary hearing].) While the
complaint included a felony-murder rape allegation (1 CT 126-
127), the magistrate expressly declined to decide whether the
prosecution presented enough evidence to go forward on that
theory. (20 CT 5825.) That sets this case apart from the more
typical sex case, where the prosecution actually charges the sex
crime and must convince a magistrate they have enough evidence
to go forward on the charge. In such cases, a probable cause

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finding by the magistrate ensures at least some slight level of
evidentiary support for the sexual offense.
The prosecutor here had no burden to demonstrate even the
“exceedingly low” level of evidentiary support required at a
preliminary hearing. (Salazar v. Superior Court (2000) 83
Cal.App.4th 840, 846.) If he had, he could not have met that
burden. Police never recovered Smart’s body, so there was no
autopsy or forensic testing to determine the presence of semen or
other evidence of sexual activity. Similarly, the evidence revealed
nothing about the manner of Smart’s death or whether it
suggested that sexual activity had taken place. (See Loy, supra,
52 Cal.4th at p. 53.) Finally, the evidence provided no way to
know if Smart was naked at the time of the killing. Indeed, the
prosecutor, himself, implied that appellant and Ruben buried her
in her clothes – thus, explaining the presence of red, black, and
light-colored fibers in the soil underneath Ruben’s deck. (39 RT
11480; see 4 RT 937-938; 26 RT 7515.)
The only evidence which even vaguely suggested sexual
activity was Jennifer Hudson’s testimony. At the preliminary
hearing, Hudson testified that she once heard appellant refer to
Smart as a “dick tease” and imply that he had killed her because
he was “done playing with her.” (14 CT 4140.) Even if accepted,
Hudson’s testimony merely showed that appellant desired sexual
activity and became frustrated when Smart did not share that
desire. Hudson’s testimony did not show that appellant tried to
initiate sexual intercourse – let alone forcibly.
The trial court recognized that the prosecution possessed no
“direct evidence” of any sexual assault against Smart. (6 Aug. RT
1598.) However, the court attributed this evidentiary shortfall to
the “unique circumstances of this case,” which made it impossible
to produce such direct evidence. (6 Aug. RT 1598-1599.) The court
concluded that these “unique circumstances,” coupled with the

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prosecution’s intent to introduce circumstantial evidence that
Smart was sexually assaulted, made the uncharged incidents
admissible under Evidence Code section 1108. (6 Aug. RT 1598.)
The court did not identify the circumstantial evidence which it
believed indicative of a sexual assault.
Appellant appreciates that this case had “unique
circumstances” which made it impossible to either demonstrate or
disprove that a sexual assault occurred. (6 Aug. RT 1598.)
Nonetheless, unique circumstances do not allow a prosecutor to
bypass the usual prohibition on character evidence without any
showing that the current charges involved a sexual offense.
During trial, the prosecutor pointed out that Smart was
sober when she parted company with Campos around 10:30 p.m.
(39 RT 11446; see 4 RT 968.) When Boelter kissed Smart a short
time later, he did not smell alcohol on her breath. (39 RT 11447;
see 8 RT 2109-2110.) Yet, by midnight, Boelter described her as
“out of it.” (39 RT 11448; see 8 RT 2113.) Around this same time,
Toomey saw Smart lying on the lawn of a neighboring house
where she remained until 2:00 or 2:30 a.m. (39 RT 11448-11449;
see 4 RT 1039; 7 RT 1913-1914; 10 RT 2741-2742.)
The prosecutor implied that the reason Smart became so
badly impaired over a relatively short period of time was that
appellant had drugged her. (See 39 RT 11446-11450, 11491; 41
RT 12097-12098.) He argued that appellant went to the party
with a “predatory mindset” and that, when the party ended, he
sought out Smart while she was “drugged” just as he had
previously sought out women near closing hours at bars. (39 RT
11491.) As evidence of this “predatory mindset,” the prosecutor
cited Koed’s testimony that, earlier in the evening, appellant had
tried to force himself on her. (39 RT 11447; see 3 RT 730-731.) He
also highlighted testimony that appellant had commented on

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Smart’s good looks and fraternized with her near the bar area.
(39 RT 11447-11448; see 4 RT 1013; 7 RT 1911; 10 RT 2736.)
Noticeably absent from the prosecutor’s argument was any
evidence that appellant committed a sexual assault – or even an
unwanted sexual advance – against Smart. Without such
evidence, nothing about the charged incident made it similar to
the acts alleged by S.D. and Ro.D. That appellant found Smart
attractive, walked home with her after the party, and tried to kiss
a different woman earlier in the party did not remotely suggest
that he tried to rape Smart.
There was also no evidence that appellant drugged Smart
or even had the opportunity to do so. To be sure, appellant did not
have to personally drug Smart in order to commit or attempt a
rape. But there would be no reason to involuntarily drug someone
except to commit a sexual assault. Hence, the drugging theory
provided a sort of proxy for the direct or forensic evidence of a
sexual assault which did not exist. Yet, evidence of drugging also
did not exist.
Not a single witness saw appellant hand Smart a drink or
pour something into the drink she already had. The prosecution
also presented no evidence that Smart left her drink unattended.
Besides, the crowded conditions, in which guests stood “shoulder
to shoulder,” would not have enabled appellant to spike Smart’s
drink without someone noticing. (4 RT 1008.)
Smart’s quick deterioration from sobriety to intoxication did
not mean that someone had drugged her. Even in a 90-minute
window, it is possible to drink quite heavily. Many of the
partygoers did just that. (10 RT 2794.) Some guests even engaged
in races to see how quickly they could finish a beer. (10 RT 2735.)
With hard liquor likely available at the party, Smart had the
means to consume large amounts of alcohol in a very short time
period. (10 RT 2794.) Though Boelter smelled no alcohol on

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Smart’s breath when she first kissed him, he could not recall if he
smelled alcohol when she kissed him again later in the evening.
(8 RT 2109, 2116.)
If anything, the prosecution’s own evidence undercut the
theory that appellant drugged Smart. Had he done so, it stands to
reason he would have kept watch on her throughout the party. He
would, therefore, have seen that she was passed out on the lawn
for more than two hours – affording him an easy opportunity to
steal off with her while no one at the party was paying attention.
(See 4 RT 1039; 7 RT 1913-1914; 10 RT 2741-2742.)
In short, nothing about this case’s facts inherently gave rise
to an inference that appellant committed a rape or attempted
rape of Smart. That makes this case analytically similar to Hoyos
and Albarran. Just as prejudicial character evidence was
inadmissible in those cases, it was also inadmissible here. The
trial court abused its discretion by admitting the two uncharged
incidents under Evidence Code section 1108.
F. The trial court further abused its discretion by
admitting the uncharged offense evidence under
Evidence Code section 1101, subdivision (b).
The trial court also found S.D. and Ro.D.’s testimony
admissible to show intent and common plan or scheme under
Evidence Code section 1101, subdivision (b). (6 Aug. RT 1599.)
The court offered no additional explanation for its ruling. (6 Aug.
RT 1599.) The ruling constituted an abuse of discretion.
“[A] common scheme or plan focuses on the manner in
which the prior misconduct and the current crimes were
committed, i.e., whether the defendant committed similar
distinctive acts of misconduct against similar victims under
similar circumstances.” (People v. Scheer (1998) 68 Cal.App.4th
1009, 1020.) The missing element in appellant’s case was the
“similar distinctive act[]” of a sexual assault against Smart.
Without this essential ingredient, the charged offense and the
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uncharged ones lacked the “high degree of similarity” required to
show common scheme and plan. (People v. Ewoldt (1994) 7
Cal.4th 380, 402-403.)
The same analysis applies on the issue of intent. A series of
cases has invoked the “doctrine of chances” in upholding the
admission of uncharged offense conduct to show criminal intent.
(See Robbins, supra, 45 Cal.3d at pp. 879-880; Spector, supra, 194
Cal.App.4th at pp. 1379-1380; People v. Dryden (2021) 60
Cal.App.5th 1007, 1017-1018 (Dryden).) The doctrine of chances
recognizes that “multiplying instances of the same result” makes
it increasingly less likely that “innocent intent . . . explain[s]
them all.” (Robbins, at p. 879; see also People v. Erving (1998) 63
Cal.App.4th 652, 663 [noting the slim likelihood that “through
bad luck or coincidence, an innocent person would live near so
many arson fires, occurring so frequently, in so many different
neighborhoods”].)
In Robbins, for instance, the defendant was charged with
kidnapping, sodomizing, and murdering a six-year old boy.
(Robbins, supra, 45 Cal.3d at pp. 871-872.) Although the
defendant initially admitted the conduct to police, he later
claimed he had falsely confessed to the sodomy. (Id. at pp. 872-
873.) Over objection, the trial court allowed the prosecution to
introduce another incident in which the defendant sexually
assaulted and strangled a seven-year old boy. (Id. at p. 878.) The
California Supreme Court affirmed, citing the doctrine of chances.
(Id. at pp. 879-881.)
In Spector, supra, 194 Cal.App.4th at p. 1342, a witness
saw the defendant with a gun in his hand and heard him admit
he had just committed a fatal shooting. At trial, the defendant
claimed the woman had committed suicide. (Id. at p. 1359.) On
appeal, the defendant challenged the admission of seven previous
gun-related assaults against five different women. (Id. at pp.

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1354-1358, 1373.) The Court of Appeal found the incidents
admissible under the doctrine of chances – emphasizing the
“objective improbability” that another gun-related incident had
occurred in the defendant’s presence, but “this time it was the
woman, not Spector,” who fired the gun. (Id. at p. 1380.)
The doctrine of chances presupposes an evidentiary basis to
suggest that “similar results” occurred in the previous cases and
the present one. (Robbins, supra, 45 Cal.3d at p. 880.) The logic
behind the doctrine breaks down when there is no evidence the
charged case involved the same conduct as the uncharged ones.
(Dryden, supra, 60 Cal.App.5th at pp. 1017-1018; see State v.
Wright (Or. 2016) 283 Ore.App. 160, 165 [“[i]n order for other acts
evidence to be logically relevant under the doctrine of chances,
the other act must be similar to the charged act”].)
Here, the doctrine of chances might have applied if
appellant had admitted having sex with Smart but claimed it was
consensual, or if the evidence showed Smart was drugged or
sexually assaulted but appellant denied being the perpetrator.
But the evidence showed neither of those scenarios. Under such
circumstances, there was no predicate to which to apply the
doctrine of chance’s “probability-based calculation.” (Spector,
supra, 194 Cal.App.4th at p. 1375.) To conclude that appellant
must have sexually assaulted Smart because he sexually
assaulted Ro.D. and S.D. is simply to treat the uncharged
offenses as a “proxy or substitute” for proof of a sexual assault in
the charged case. (People v. Vichroy (1999) 76 Cal.App.4th 92, 99.)
With no evidence that appellant committed a sexual offense
against Smart, the prosecutor failed to establish the preliminary
facts necessary to make S.D. and Ro.D.’s testimony admissible for
either propensity or non-propensity purposes. Yet, that improper
propensity inference was the only one the jury could possibly
have drawn from their testimony. By admitting the uncharged

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offense evidence, the trial court infused the trial with unfairness
and violated appellant’s due process rights. (Estelle, supra, 502
U.S. at p. 75; Jammal, supra, 926 F.2d at p. 920.)
G. The admission of highly inflammatory uncharged
offense evidence requires reversal of appellant’s
murder conviction.
Because admission of the two uncharged offenses violated
due process, the error requires reversal of appellant’s murder
conviction unless harmless beyond a reasonable doubt. (Chapman
v. California (1967) 386 U.S. 18, 24 (Chapman).) Alternatively,
should this Court view the error as one of state law only, it
requires reversal if it is reasonably probable appellant would
have achieved a more favorable result in the error’s absence.
(People v. Watson (1956) 46 Cal.2d 818, 836 (Watson).) Under
either test, this Court must reverse appellant’s conviction.
Without the two uncharged incidents, there was almost no
possible way the jurors had enough evidence before them to find
that appellant committed a rape or attempted rape of Smart.
And, without a rape or attempted rape, the prosecution’s entire
case theory fell apart. Appellant would have had no reason to kill
Smart unless he did so in the context of some other crime.
There was a reason this case went uncharged for nearly 25
years. Much of the case rested on innuendo, such as the fact that
appellant found Smart attractive (7 RT 1911, 1925), pressed
Boelter about what he and Smart were doing in the bathroom (8
RT 2110-2112), engaged in boorish behavior with other women
during or after the party (3 RT 730-731; 4 RT 1055-1056), was the
last person seen with Smart (4 RT 1058-1059), and suffered a
bruise over his eye sometime around Memorial Day weekend. (9
RT 2411-2412; 10 RT 2831-2832.) If such facts proved appellant’s
guilt, the prosecution would have charged him many years ago
when they already had all this evidence at their disposal.

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 Also available since June, 1996 was the knowledge that
four human remains dogs had alerted outside and inside
appellant’s old dorm room. (15 RT 4285-4289, 4309; 16 RT 4589-
4591; 18 RT 5138-5139, 5145-5146.) Yet, the prosecution did not
charge appellant at that time – no doubt because they recognized
what defense counsel would later argue: that a dog alert,
unaccompanied by actual human remains, constitutes weak
evidence if not an obvious false positive. (40 RT 11726-11729.)
As defense counsel pointed out, a good deal of dog alert
evidence rests on the handler’s subjective impressions about the
dog’s body language and behavioral changes. (40 RT 11727-11728;
see, e.g., 15 RT 4288; 18 RT 5144-5145, 5147; 21 RT 6076-6078.)
Even when the dogs actually alerted, there was no way to know
the source of that alert or the extent to which external cues –
such as the police placard outside room 128 – might have affected
their behavior. (15 RT 4351-4352; 16 RT 4633-4634.) At the time
of the dog searches, multiple law enforcement officers had already
walked through the room, including a crime scene technician. (12
RT 3375, 3380.) Defense counsel posited that the dogs may have
been alerting to human remains evidence inadvertently brought
into the room from another crime scene. (40 RT 11731-11733.)
In fact, there were known instances of false alerts in this
very case, such as the ones in Huasna and the “show of interest”
at the Performing Arts Center. (15 RT 4360; 36 RT 10538-10539;
see 40 RT 11716, 11734.) One dog also falsely alerted on the
wrong mattress in appellant’s dorm room before going to the
other side of the room and alerting again. (18 RT 5140, 5145-
5146.) Such false alerts largely undermined the evidentiary
significance of the supposedly “true” alerts.
Appellant’s case still remained uncharged even after
November, 2019, when Hudson reported that appellant had
admitted killing Smart and burying her under his skateboard

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ramp in Huasna. (36 RT 10568, 10586-10587.) Again, the
prosecution had good reason for not charging appellant at that
time. Hudson was an unreliable witness who waited more than 20
years to come forward. During their investigation, sheriff
detectives found no evidence that appellant’s family ever owned
property in Huasna. (36 RT 10582.) When they nonetheless dug
up the area associated with the old Huasna skateboard ramp, no
evidence of human remains turned up. (36 RT 10537-10538.)
The prosecution also failed to produce a single witness from
San Luis Obispo County’s skateboarding community who knew
appellant or had seen him at a skateboard ramp. Brent Moon,
Hudson’s then boyfriend and an avid skateboarder, testified that
he had never met appellant. (33 RT 9985, 9992.) In addition,
Sheriff deputies could not locate either of the two “Reds” or the
two men whom Hudson drove to the Huasna ramp. (25 RT 7607;
36 RT 10571-10573.)
The “other crimes” evidence first surfaced in May, 2020,
when S.D. and D.W. told police that appellant had drugged and
raped them. (2 CT 469.) Appellant was arrested and charged
some 11 months later – in April, 2021. (1 CT 99, 126-127.) In
May, 2021, Ro.D. came forward. (17 RT 4827.) The women’s
disclosures transformed this case – supplying the prosecutor with
a sexual motive not otherwise shown by the evidence. They
additionally enabled the prosecutor to portray appellant as a
sociopathic predator who stalked and sexually assaulted Smart in
the same way he had done to Ro.D. and S.D. And that is exactly
what the prosecutor argued.
Early in closing argument, the prosecutor commented that
no witnesses had seen Smart’s killing, just as none saw what
appellant had done to S.D. and Ro.D. (39 RT 11440.) Moments
later, he added, “S.D. and Ro.D. tell us what Kristin could not,

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that she was raped or that Paul Flores tried to rape her. And they
speak for Kristin.” (39 RT 11441.)
Near the end of his argument, the prosecutor again brought
up the uncharged incidents and recounted the details at length.
(39 RT 11490-11497.) He likened Ro.D.’s case to this one,
asserting that, in both cases, appellant “appeared out of nowhere”
at the end of the night. (39 RT 11494-11945.) He then asked,
rhetorically, “Sound familiar? Just like what he did to Tim Davis
and Cheryl Anderson. He had a scheme to separate Kristin Smart
like he did Ro.D.” (39 RT 11945.) The prosecutor also likened
S.D.’s case to this one, in that appellant had stared intently at
S.D. before approaching her – just as several witnesses described
with Smart. (39 RT 11495-11496.)
Just before concluding his closing argument, the prosecutor
stated:
These women tell you what Kristin cannot, that
Paul Flores raped them. Predators make the
pattern, predators are going to prey, and what
you have seen is a plan and scheme by Paul
Flores to rape women spanning two decades.
What I am asking from you is accountability.
Now, how do you do that? Find him guilty of
first degree murder by following the law and
rendering a truthful verdict.
(39 RT 11497.)
The prosecutor returned to the subject of the uncharged
offenses yet again in his rebuttal argument. (41 RT 12096-12098.)
He argued that the uncharged offenses showed appellant to be a
“serial rapist” and that, “to vote not guilty you would have to
believe that a serial drugger, who enjoyed raping drugged women,
had Kristin Smart to himself, by himself, feet from his dorm
room, and yet let her go.” (41 RT 12098.) The prosecutor called
such a belief “so absurd as to be ridiculous.” (41 RT 12098.)

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 The prosecutor’s heavy reliance on the uncharged offense
evidence only heightened its already prejudicial character. (See
People v. Cruz (1964) 61 Cal.2d 861, 868 (Cruz).) When a
prosecutor relies on erroneously admitted evidence in this
fashion, our state’s high Court has found “no reason [to] treat this
evidence as any less ‘crucial’ than the prosecutor – and so
presumably the jury – treated it.” (Ibid.)
Moreover, even as “bad acts” evidence goes, the two
uncharged rapes were uncommonly incendiary. That appellant
suffered no conviction for either crime only increased the
evidence’s prejudicial impact. Even jurors who had reasonable
doubt about appellant’s guilt in this case might have opted to
punish him for S.D. and Ro.D.’s rapes on the theory that he
previously escaped punishment for those very serious crimes.
(People v. Branch (2001) 91 Cal.App.4th 274, 284.)
Admission of the two uncharged offenses also had the
ancillary effect of allowing the prosecutor to bring in Exhibit 458
– a still photograph of a woman with a ball gag in her mouth. (See
4 Aug. CT 1071-1072.) The photograph came from a video, found
on appellant’s home computer. (32 RT 9415-9416.) The trial court
referred to that video as “shocking,” but allowed the prosecutor to
introduce one still photo in order to corroborate S.D. and Ro.D.’s
claims that appellant used the same device on them. (32 RT 9424-
9426; see also 17 RT 4823; 24 RT 6923-6924.) Without S.D. and
Ro.D.’s testimony, that photograph would never have been
admissible.
The jury’s actions showed it regarded the case as a close
one. It deliberated for four full days, half of another, and parts of
two others. (32 CT 9562-9564, 9579-9581, 9583-9584, 9586.) Even
in a trial of more than two months, deliberations of such length
are unusually protracted and indicative of a difficult case. (See In

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re Martin (1987) 44 Cal.3d 1, 51 [5-day, 22-hour deliberations
“practically compel[] the conclusion” of a close case].)
It bears mention that the jurors in Ruben’s case found him
not guilty as an accessory after the fact. (34 CT 10171.) Their
verdict showed that they likely rejected the HemDirect blood test
results. Aside from the prosecutor’s theory, there was no scenario
in the evidence which would have explained the presence of
human blood underneath Ruben’s deck. And it defies credulity to
believe that Smart could have been buried underneath Ruben’s
deck without his knowing about it.
The two defense experts, however, cast doubt on the
HemDirect results. Dr. Carter opined that the stains found in the
soil under Ruben’s deck were inconsistent with what he has
typically seen at burial sites. (33 RT 9667.) Dr. Johnson pointed
out that there have been no studies on the HemDirect’s validity
when testing for blood in soil. (33 RT 9778.) Johnson further
noted that any blood in the soil would have probably degraded
over time – rendering the HemDirect test ineffective and
unreliable. (33 RT 9773-9774, 9796-9797.)
By acquitting Ruben, his jury seemingly sided with the two
defense experts and rejected the positive blood results from the
HemDirect test. Appellant, of course, was tried by a different
jury. But the behavior of one jury may provide insight into the
behavior of another jury presented with similar evidence. (See,
e.g., People v. Kelley (1967) 66 Cal.2d 232, 245 [hung jury at first
trial, where disputed evidence was excluded, indicative of
prejudice from admitting that evidence at second trial]; People v.
Diaz (2014) 227 Cal.App.4th 362, 385 [same].) Without spilling
needless ink, if one jury had reservations about the validity of the
HemDirect blood test results, a different jury would likely have
had similar reservations.

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 In a trial without S.D. and Ro.D.’s testimony, there is a
reasonable probability that at least one juror would have voted to
acquit appellant. (People v. Hendrix (2022) 13 Cal.5th 933, 947,
fn. 6 [hung jury “is a ‘more favorable’ [Citations] outcome for
purposes of harmless error review under Watson”].) Accordingly,
this Court must reverse appellant’s murder conviction.
H. Even if admission of the uncharged offense evidence
was harmless on the issue of malice murder, it
requires reversal of the first degree murder finding.
Under the trial court’s instructions, the jurors had to find
appellant guilty of malice murder before deciding the degree of
that murder. (See 35 CT 10340-10341.) To convict of first degree
murder, jurors had to additionally find either that the killing was
willful, deliberate, and premeditated or that it occurred in the
commission of a rape or attempted rape. (35 CT 10431-10433.)
This Court could potentially find the admission of S.D. and
Ro.D.’s testimony harmless on the issue of whether appellant
killed Smart and acted with malice. But, at the very least, the
error impacted the jury’s view of the felony-murder rape
allegations. It, therefore, requires reduction of appellant’s
conviction to second degree murder.
The uncharged offense evidence enabled the prosecutor to
prove a rape or attempted rape which he could not otherwise have
proven. (See Argument II.E, supra, at pp. 60-65.) When it came
time for closing argument, the prosecutor discussed those crimes
extensively with much of his focus centering on S.D. and Ro.D.’s
testimony. (39 RT 11487-11497; see also 41 RT 12096-12098.)
While the prosecutor also addressed the theory of premeditated
murder, he did so only in passing and without identifying any
specific evidence which supported that theory. (39 RT 11487.)
Given the prosecutor’s heavy emphasis on the felony-
murder theory, and cursory treatment of premeditated murder, at
least some jurors likely convicted under a felony-murder
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rationale. And, it would be nearly impossible to convict on this
theory without relying on S.D. and Ro.D.’s testimony. In a trial
without their testimony, there is a reasonable probability at least
one juror would have voted to convict of only second degree
murder. This Court must, therefore, reverse appellant’s
conviction and allow the prosecutor to either accept a reduction to
second degree murder or retry appellant of first. (See, e.g., People
v. Chiu (2014) 59 Cal.4th 155, 168 (Chiu).)
III.
The trial court violated the Fourteenth
Amendment’s due process clause by
allowing a lay witness to opine that Smart
looked like she had been given “roofies.”
Over objection, the trial court permitted Trevor Boelter to
testify that Smart’s behavior at the party resembled his own
behavior when he was “Roofied.” (8 RT 2162-2163.) Boelter did
not explain how he knew he had been drugged. Without that
explanation, his lay opinion lacked adequate foundation. In a case
where two female witnesses claimed that appellant had drugged
and raped them, Boelter’s improper testimony injected a strong
inference that appellant did this exact same thing to Smart. That
inference became even more powerful after the court erroneously
allowed testimony that the school newspaper had reported on the
common phenomenon of female students being roofied. The error
was prejudicial and requires reversal of appellant’s conviction.
A. Background
On direct examination, Boelter testified that Smart
appeared unstable on her feet and “spacey,” as if drunk or on
drugs. (8 RT 2115-2116.) Boelter added, “it didn’t seem like
drunk.” (8 RT 2115.)
On cross, defense counsel elicited evidence that Boelter had
given a series of statements and interviews over the years, but
made no mention of drugs until 2012. (8 RT 2124, 2130-2132,

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2135-2136, 2158.) During redirect, the prosecutor asked Boelter
to elaborate on his belief that Smart may have been on drugs. (8
RT 2160-2161.) Boelter said he had read articles in the school
newspaper “about girls being Roofied or drunk.”4 (8 RT 2161.)
Defense counsel objected and moved to strike Boelter’s testimony
as hearsay. (8 RT 2161.) The trial court overruled the objection
subject to a motion to strike, stating that Boelter had not yet
“relate[d] anything specifically from the newspaper.” (8 RT 2161.)
Boelter next testified that he had once been “Roofied at a
bar” after his friend handed him something. (8 RT 2161.) Defense
counsel interrupted his testimony with a relevancy objection. (8
RT 2161-2162.) The court did not rule but simply instructed the
prosecutor to ask his next question. (8 RT 2161-2162.)
Moments later, the prosecutor asked Boelter if his personal
experience with roofies led him to bring up this possibility in his
2012 interview. (8 RT 2162.) Defense counsel unsuccessfully
objected on relevancy grounds and under Evidence Code section
352. (8 RT 2162.) Boelter then explained that the roofies initially
caused him to become euphoric and energized. (8 RT 2162.) Later,
he became sick and passed out and his friends had to carry him
home. (8 RT 2162.) Boelter added that the experience reminded
him “of that night and seeing Kristin Smart.” (8 RT 2163.)
Defense counsel moved to strike Boelter’s testimony as
lacking foundation. (8 RT 2163.) The trial court overruled the
objection. (8 RT 2163.)
During recross, Boelter testified that he did not see any
drugs at the Crandall Way party. (8 RT 2168.) On further

4
According to the website WebMD.com, being “roofied”
means to be “raped or sexually assaulted after being given a
substance that made it hard for you to say no or protect yourself.”
(https://www.webmd.com/mental-health/addiction/date-rape-drug
s. [as of Oct. 21, 2024]
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redirect, the prosecutor asked if Boelter “saw drugs around” when
he was roofied. (8 RT 2169.) Boelter said he did not. (8 RT 2169.)
The prosecutor next asked if Smart’s behavior was “consistent
with having been Roofied.” (8 RT 2169.) The trial court disallowed
the question. (8 RT 2169.)
B. Standard of review
“[A]n appellate court applies the abuse of discretion
standard of review to any ruling by a trial court on the
admissibility of evidence.” (People v. Waidla (2000) 22 Cal.4th
690, 717.) A trial court abuses its discretion when its ruling
“transgresses the confines of the applicable principles of law.”
(Sargon Enterprises, Inc. v. University of Southern California
(2012) 55 Cal.4th 747, 773.)
C. There was no foundation to support Boelter’s
opinion that Smart looked like she had been given
roofies.
A lay witness may give an opinion only on matters of “such
common knowledge that men of ordinary education could reach a
conclusion as intelligently as the witness.” (People v. Chapple
(2006) 138 Cal.App.4th 540, 547, quoting People v. Cole (1956) 47
Cal.2d 99, 103.) The admission of improper opinion testimony
violates due process where it renders the trial fundamentally
unfair. (Estelle, supra, 502 U.S. at p. 67.)
A lay witness may give an opinion that a person appeared
drunk. (People v. McAlpin (1991) 53 Cal.3d 1289, 1308.) The same
rule applies to drug-induced intoxication provided “the party
eliciting the evidence establishes a foundation.” (People v.
Navarette (2003) 30 Cal.4th 458, 493.) To establish this
foundation, the proponent of the evidence must show that the
witness is “sufficiently knowledgeable” about the drug in question
to render an opinion that someone was under the influence of it.
(Id. at p. 494.)

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 Here, the trial court sustained defense counsel’s objection
when the prosecutor asked Boelter if Smart’s behavior was
“consistent with having been Roofied.” (8 RT 2169.) Yet, only a
short time earlier, the court permitted Boelter to testify that
Smart’s behavior reminded him of his own experience with
roofies. (8 RT 2163.) There is no practical difference between
testifying that someone’s behavior was “consistent with having
been roofied” and testifying that someone’s behavior was
reminiscent of one’s own experience on roofies. In each instance,
the testimony constitutes an opinion whose admissibility turns on
the witness’s familiarity with roofies and their effects.
A lay witness who has, in fact, been “roofied” could perhaps
render an admissible opinion on whether another person’s
behavior resembled his own. But Boelter provided no information
about how or why he came to believe he had been roofied.
Without such information, his conclusory assertion lacked
adequate foundation. (See Overhill Farms, Inc. v. Lopez (2010)
190 Cal.App.4th 1248, 1270.)
Boelter claimed to have personal experience with someone
handing him a roofie-spiked drink at a bar. (8 RT 2161-2162.) But
he did not explain how he knew that roofies had been placed in
his drink. For instance, he did not say that he personally saw
someone spike the drink or that someone told him the drink had
been spiked. He did not even say that he left his drink
unattended or saw other patrons at the bar with roofies. In fact,
when asked if he saw drugs around on the night he was roofied,
he said he did not. (8 RT 2169.)
Finally, Boelter offered no explanation for why someone
would have given him date rape drugs. He did not claim, for
example, that he woke up to find someone sexually abusing him.
He simply testified that he “felt really happy and . . . wanted to
dance” but later passed out and had to be carried home. (8 RT

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2162.) That is hardly enough to support an inference of
involuntary drugging, as opposed to voluntary drunkenness.
A defendant who seeks an involuntary intoxication
instruction must do more than just assert a belief that he was
drugged. (People v. White (Ill. 1970) 131 Ill.App.2d 652, 654, 656
[no substantial evidence of involuntary intoxication where the
defendant briefly left his glass unattended at a bar and expressed
a belief he had been drugged]; People v. Vargas (Ill. 1992) 224
Ill.App.3d 832, 835-836 [involuntary intoxication instruction not
warranted where defendant said he did not remember anything
after finishing his last drink and believed someone may have
spiked it].) If a defendant’s unsupported assertion of drugging
does not establish involuntary intoxication, then a witness’s
unsupported assertion of drugging does not establish the personal
experience necessary to give an opinion on another’s intoxication
with the same drug.
By eliciting improper opinion testimony from Boelter, the
prosecutor succeeded in planting an insidious idea in jurors’
minds: that appellant had drugged and raped Smart in the same
way he had done to Ro.D. and S.D. Furthermore, the insidious
idea was the very point behind the prosecutor’s questioning.
Boelter had already described Smart as “out of it,” “spacey,”
unable to stand straight, and seemingly more than just drunk. (8
RT 2113, 2115-2116.) His opinion on possible involuntary roofie
use added nothing which he had not already conveyed through
his own descriptions of her behavior. (People v. Sergill (1982) 138
Cal.App.3d 34, 40 [lay opinion admissible only when the witness
“cannot adequately describe his observations without using
opinion wording”].) By injecting a toxic inference, not otherwise
shown by the evidence, Boelter’s testimony infused the trial with
unfairness and violated appellant’s Fourteenth Amendment due
process rights. (Estelle, supra, 502 U.S. at p. 67.)

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D. Boelter’s testimony about what he read in the school
newspaper was inadmissible hearsay.
In addition to lacking foundation, Boelter’s testimony
constituted inadmissible hearsay insofar as he related stories in
the school newspaper about women being “roofied.” (8 RT 2161.)
The trial court overruled appellant’s hearsay objection on the
ground that Boelter had not recited the article’s contents. (8 RT
2161.) But a witness need not recite the out-of-court statement
verbatim in order to violate the hearsay rule. It is enough that
the witness relates the substance of that statement. (Pajaro
Valley Water Management Agency v. McGrath (2005) 128
Cal.App.4th 1093, 1108 [summary of hearsay statement is still
hearsay]; Ocampo v. Vail (9th Cir. 2011) 649 F.3d 1098, 1109-
1110 [hearsay rule applies to statements which “convey . . . .the
substance of an” extrajudicial statement].)
The jury did not need to hear more to understand that the
stories in the school newspaper concerned college women being
drugged and sexually assaulted. And it would be difficult to
conceive of a more quintessential form of hearsay than a
newspaper article. (Christian Research Institute v. Alnor (2007)
148 Cal.App.4th 71, 83.) The trial court abused its discretion by
overruling appellant’s hearsay objection.
E. Boelter’s erroneously admitted testimony
requires reversal of appellant’s conviction, or a
reduction to second degree murder, since it
enabled the prosecution to prove an otherwise
unprovable sexual assault.
Because the admission of Boelter’s opinion and hearsay
testimony violated due process, the error requires reversal unless
harmless beyond a reasonable doubt. (Chapman, supra, 386 U.S.
at p. 24.) Even under the state court harmless error test,
however, there is a reasonable probability the jury would have
reached a more favorable verdict in a trial without the error.

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 Appellant incorporates by reference his previous discussion
about the weakness of the evidence, the importance of the
uncharged offense evidence, and the jury’s difficulties with the
case. (Argument II.G, supra, pp. 68-74.) Boelter’s testimony
enabled the prosecutor to pursue his theory that appellant
drugged and sexually assaulted Smart just as he had done to S.D.
and Ro.D. (See 39 RT 11441, 11488-11496.) Without Boelter’s
improper opinion on roofie usage, the evidence provided no basis
for this conclusion. No witness except Boelter attributed Smart’s
intoxication to anything other than alcohol.
Boelter’s testimony overcame this evidentiary gap by
showing that Smart was acting exactly as a person on roofies
acts. Boelter’s inadmissible hearsay only lent further credence to
his improper opinion by showing that, at the time, administering
roofies to women was so common that even the school newspaper
published stories on the phenomenon.
The prosecutor recognized the importance of Boelter’s
testimony and relied on it in closing argument. When discussing
the allegation that appellant committed a rape or attempted rape
of an intoxicated person, the prosecutor specifically brought up
Boelter’s testimony. In this regard, he stated:
And remember what else [Boelter] said? He
said, You know, I thought about this because in
2012 I was Roofied. Everyone remember that?
And he said, I thought back and that’s exactly
what I saw in Kristin.
(39 RT 11489.)
The prosecutor’s argument only increased the likelihood
that the jury would rely on Boelter’s improper testimony that
Smart was given roofies. (Cruz, supra, 61 Cal.2d at p. 868.) And,
given S.D. and Ro.D.’s testimony, there could be no great mystery
about who gave her those roofies. Nor could there be any mystery
about his motives for doing so. There would be no reason to

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“roofie” someone except to commit a sexual assault – especially
for someone like appellant who, according to two other witnesses,
had done just that in the past. Thus, if the jury found that
appellant drugged Smart, it was tantamount to finding that he
raped or attempted to rape her. From there, it was but a short
leap to finding that he also killed her.
It is one thing to be the last person in Smart’s company
while on a public road. It is quite another to be the last person in
Smart’s company when sexually assaulting her after drugging her
at a party. The latter scenario provides a motive and opportunity
to kill which is not present in the former. It provides a motive
because killing a sexual assault victim prevents her from going to
the police. It provides an opportunity because sexual assaults
almost invariably occur in private. In addition, Boelter’s drugging
testimony gave rise to a powerful character inference: that
someone violent enough to drug and rape Smart would also be
violent enough to kill her.
Finally, even if Boelter’s testimony was harmless on the
murder charge, it requires reduction of the charge from first
degree murder to second. As discussed in Argument II.H, supra,
at pp. 74-75, it is reasonably probable that some, if not all, jurors
relied on the felony-murder theory of first degree murder.
Boelter’s testimony substantially bolstered that theory by
providing otherwise missing evidence to show that Smart was
drugged and, therefore, sexually assaulted.
For these reasons, admission of Boelter’s hearsay and
improper opinion testimony requires reversal of appellant’s
murder conviction or a reduction of the charge to second degree
murder.

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 IV.
The prosecutor committed misconduct, in
violation of the Fourteenth Amendment’s
due process clause, by misusing the ball
gag photograph for character purposes.
Despite a strenuous defense objection, the trial court
allowed the prosecutor to introduce a photograph from appellant’s
computer which showed a woman with a ball gag in her mouth.
The court admitted the photograph solely to corroborate S.D. and
Ro.D.’s claims that appellant used a similar device on them.
During rebuttal argument, however, the prosecutor used the
photograph for improper character purposes and to inflame the
jurors’ passions. His actions constituted prejudicial misconduct.
A. Background
As discussed earlier, the trial court allowed the prosecutor
to introduce Exhibit 458 – a photograph of a woman with a red
ball gag in her mouth. (32 RT 9415-9416, 9424-9426.) The court
overruled appellant’s objections, allowing the exhibit to come in to
corroborate S.D. and Ro.D.’s testimony. (32 RT 9420-9422, 9424-
9426; 37 RT 10878-10879.) The court explained that the
prosecutor had presented it with six still photographs from the
video found on appellant’s computer. (32 RT 9415-9416, 9425.) Of
the six, it believed Exhibit 458 to be the “least inflammatory.” (32
RT 9425-9426.) Defense counsel had offered to stipulate that
police found a red ball gag at appellant’s home. (32 RT 9423.)
The prosecution introduced Exhibit 458 through forensic
computer specialist Christopher Fitzpatrick – the last witness in
their case in chief. (32 RT 9415-9416.) The trial court admonished
the jury that it could consider the photograph “only for the
limited purpose of establishing, if it does, that Mr. Paul Flores
possessed a red ball gag.” (32 RT 9416.)
During closing argument, defense counsel characterized the
prosecution’s case as “basically a bunch of conspiracy theories

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that aren’t really backed up by facts.” (39 RT 11498-11499.) He
called such conspiracy theories “fun” but emphasized the need for
actual evidence instead of just theories. (39 RT 11499.)
In his rebuttal, the prosecutor ridiculed defense counsel’s
argument – stating:
And then Counsel said, [c]onspiracy theories
are fun. Okay, maybe you think it’s possible
that everybody, the dogs, are in on it. Did it
look like the woman with the ball gag in her
mouth was having fun in this conspiracy
theory?
(41 RT 12095-12096.)
Defense counsel immediately objected but the trial court
overruled the objection. (41 RT 12096.) During the next break,
counsel moved for mistrial. (41 RT 12120-12122.) Counsel
elaborated that the photograph had been admitted solely to
corroborate S.D. and Ro.D., but the prosecutor had instead used it
to inflame the jurors’ passions. (41 RT 12121-12122.) The trial
court denied the mistrial motion. (41 RT 12124, 12128.)
Defense counsel later filed a motion for new trial based on,
among other things, prosecutorial misconduct in connection with
Exhibit 458. (33 CT 9816, 9827-9828.) In the motion, he
represented that, during an in-chambers discussion about the
exhibit’s admissibility, the prosecutor declared that “he was a
‘professional’ and could be trusted” not to use the photograph
beyond its limited purpose. (33 CT 9828.) The trial court denied
the motion for new trial, finding that the prosecutor had merely
tried to highlight what he believed to be the “absurdity” of the
defense’s argument. (49 RT 14466, 14480.)
B. The prosecutor committed misconduct by misusing
limited purpose evidence to advance an improper
character inference.
Prosecutorial misconduct involves “the use of deceptive or
reprehensible methods to attempt to persuade either the court or

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the jury.” (People v. Smithey (1999) 20 Cal.4th 936, 960.) To
demonstrate reversible misconduct, the defendant need not show
that the prosecutor acted intentionally or in bad faith. (People v.
Benson (1990) 52 Cal.3d 754, 793.) He need only show that his
“right to a fair trial was prejudiced.” (People v. Vargas (2001) 91
Cal.App.4th 506, 569.) When a prosecutor’s misconduct infects
the trial with unfairness, it deprives the accused of his
Fourteenth Amendment right to due process. (Donnelly v.
DeChristoforo (1974) 416 U.S. 637, 643 (Donnelly).)
The prosecutor committed misconduct during rebuttal
argument by “urging use of [the ball gag photograph] for a
purpose other than the limited purpose for which it was
admitted.” (People v. Lang (1989) 49 Cal.3d 991, 1022.) The
prosecutor did not merely cite the photograph as corroboration of
S.D. and Ro.D.’s testimony – as the court’s ruling permitted. (32
RT 9424-9426.) Rather, he displayed Exhibit 458 and asked,
rhetorically, if “the woman with the ball gag in her mouth” looked
to be “having fun.” (41 RT 12096.)
The not-so-subtle point behind the prosecutor’s argument
was to call the jury’s attention to the disturbing nature of the act
depicted in Exhibit 458. That argument both exceeded the scope
of the court’s limiting order and advanced an impermissible
character inference – effectively urging the jurors to convict
because of the heinous acts captured on the photograph. (See
People v. Hovey (1988) 44 Cal.3d 543, 576 [a prosecutor may not
use a photograph “solely to invoke a sympathetic reaction”].)
Relatedly, the argument also implied the existence of a third
sexual assault victim in addition to S.D. and Ro.D. – namely, the
woman shown in Exhibit 458.
In United States v. Brown (9th Cir. 2003) 327 F.3d 867, 868,
the defendant was charged with 28 counts of wire fraud for
overcharging a client by two percent. The trial court admitted the

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defendant’s other acts of dishonesty to show knowledge and
intent and to rebut the defendant’s claim that the charges had
been orchestrated by “a disgruntled employee.” (Id. at p. 870.)
During closing argument, the prosecutor mused that, “if a man is
willing to cheat a little bit over here, wouldn’t he be willing to
cheat just a little bit over here?” (Id. at p. 871.) The Ninth Circuit
found reversible misconduct, observing that the prosecutor’s
remarks “were clearly designed to show [the accused’s] criminal
propensity.” (Id. at p. 872.)
The prosecutor here did the same thing as the one in
Brown. If anything, the misconduct here was considerably more
egregious since the act of overcharging a client by two percent
pales in comparison to the act depicted on Exhibit 458.
If the prosecutor believed that defense counsel had
trivialized the case’s seriousness, he was, of course, free to
respond. But he was not free to misuse limited-purpose evidence
to portray appellant as a person of violent character. The
prosecutor’s actions constituted misconduct which infected the
trial with unfairness and violated the Fourteenth Amendment’s
due process clause. (Donnelly, supra, 416 U.S. at p. 643.)
C. The prosecutor’s misconduct constituted reversible
error.
Whether viewed as a federal constitutional violation,
subject to the “harmless beyond a reasonable doubt” standard
(Chapman, supra, 386 U.S. at p. 24), or state court error subject
to the “reasonable probability” standard (Watson, supra, 46
Cal.2d at p. 836), the prosecutor’s actions require reversal of
appellant’s murder conviction.
Appellant again incorporates by reference his previous
discussion about the weakness of the evidence and the jury’s
difficulties with the case. (Argument II.G, supra, pp. 68-74.) In
addition, for the same reasons the uncharged offense evidence

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had the “capacity . . . . to lure the factfinder into declaring guilt
on a ground different from proof specific to the offense charged,”
so too did the prosecutor’s misuse of Exhibit 458. (Old Chief v.
United States (1997) 519 U.S. 172, 180.) The exhibit came from a
video which even the trial court referred to as “shocking.” (32 RT
9425.) Defense counsel used the same word when describing the
still photograph depicted in Exhibit 458. (32 RT 9421.) While the
court called Exhibit 458 “the least inflammatory” of the six
photographs submitted by the prosecutor, that does not mean it
was not highly inflammatory. (32 RT 9425-9426.)
Even without the prosecutor’s comment, the ball gag
photograph already possessed an inherent capacity to inflame
jurors or lead them to convict based on appellant’s character,
rather than the evidence at trial. But, as the Supreme Court has
observed, there is a big difference between improper inferences
the jury may draw on its own and improper inferences which
have been “solemnize[d]” by the prosecutor or court. (Griffin v.
California (1965) 380 U.S. 609, 614.) That is precisely what the
prosecutor did by misusing the ball gag photograph. And it is
precisely what the court did by overruling defense counsel’s
counsel’s objection to the prosecutor’s actions. (41 RT 12096.)
But for the prosecutor’s improper comments, there is a
reasonable probability at least one juror would have voted to
acquit altogether – or at least to absolve appellant of the rape or
attempted rape which elevated the crime to first degree murder.
For these reasons, this Court should reverse appellant’s
conviction or reduce it to second degree murder.

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 V.
As there was no substantial evidence to
support any theory of first degree murder,
appellant’s conviction for that crime
violates the Fourteenth Amendment’s due
process clause.
If a jury convicts a defendant even when “no rational trier
of fact could find guilt beyond a reasonable doubt,” the verdict
offends the Fourteenth Amendment’s due process clause and
article I, section 15 of the California Constitution. (Jackson v.
Virginia (1979) 443 U.S. 307, 317; People v. Berryman (1993) 6
Cal.4th 1048, 1083.) In assessing a sufficiency of the evidence
claim, “the reviewing court must examine the whole record in the
light most favorable to the judgment to determine whether it
discloses substantial evidence – evidence that is reasonable,
credible and of solid value – such that a reasonable trier of fact
could find the defendant guilty beyond a reasonable doubt.”
(People v. Kraft (2000) 23 Cal.4th 978, 1053.)
Here, the trial court instructed on two theories of first
degree murder: willful, deliberate, and premeditated murder and
felony-murder in the commission or attempted commission of
various types of rape. (35 CT 10431, 10435-10439.) When the
court instructs on multiple legal theories, the verdict will be
upheld if substantial evidence supports any one of those theories.
(People v. Sandoval (2015) 62 Cal.4th 394, 424.) In this case, it
did not.
As discussed in Argument II.E, supra, at pp. 60-65, the
prosecution presented no evidence that appellant committed or
attempted an act of sexual intercourse against Smart. Appellant’s
previous argument focused on the evidence presented at the
preliminary hearing. But the only thing which changed at trial
was that the prosecutor called S.D. and Ro.D. and the court
allowed Boelter to testify that Smart’s behavior resembled his

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own behavior after being “Roofied.” (8 RT 2161-2163.) Even with
those additions, no substantial evidence showed either an
attempted or actual rape of any type.
Uncharged offense evidence, standing alone, is insufficient
to establish that a sex crime occurred in this case. (People v.
Younger (2000) 84 Cal.App.4th 1360, 1382; CALCRIM No.
1191A.) And opinion testimony “is only as good as the facts and
reasons on which it is based.” (People v. Valdez (1997) 58
Cal.App.4th 494, 510.) When opinion testimony rests on an
inadequate foundation – as Boelter’s did – it does not constitute
legally sufficient evidence to support a conviction. (See In re
Leland D. (1990) 223 Cal.App.3d 251, 259 [expert testimony
based on hearsay did not constitute substantial evidence].)
Moreover, even if jurors could infer that appellant had sex
with Smart (or attempted to do so), no substantial evidence
showed that he did so forcibly or while Smart was unconscious.
The record also provided no information about when the actual or
attempted sex allegedly happened. Without such information, the
jury had no basis for finding that Smart was still too intoxicated
to resist. If the incident happened hours after she walked home
with appellant, the effects of the alcohol could have dissipated so
that Smart no longer lacked the ability to consent.
Likewise, no substantial evidence showed that appellant
committed willful, deliberate, and premeditated murder. The
California Supreme Court has identified three categories of
evidence which are relevant to the issues of premeditation and
deliberation: (1) planning activity; (2) motive evidence; and (3)
evidence about the manner of the killing. (People v Anderson
(1968) 70 Cal.2d 15, 26-27.) There was no evidence that appellant
engaged in any planning activity. Though the prosecutor argued
that appellant “hunt[ed]” Smart in the weeks before Memorial

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Day weekend (41 RT 12117), even the prosecutor did not allege
that he did so with an eye toward killing her.
Nor did the prosecutor present evidence about motive or the
manner of killing. A sexual motive, if one existed, is not a motive
to kill. Had there been evidence that appellant actually
committed a sex crime, his act of doing so may have supplied a
motive to later kill the only witness to that crime. But with no
evidence of any sex crime, appellant had no apparent motive to
kill Smart. Because no substantial evidence supported any theory
of first degree murder, this Court must order appellant’s
conviction reduced to second degree murder.
VI.
The trial court violated appellant’s
Fourteenth Amendment due process
rights by misstating the mens rea element
of attempted rape of an intoxicated person
and precluding jurors from considering
whether his own intoxication led him to
misjudge Smart’s ability to consent.
Appellant has previously argued that the evidence provided
no basis for finding he had sex with Smart or attempted to do so.
But if jurors did find an attempt at sex while Smart was too
impaired to consent, they additionally had to find that appellant
actually knew the extent of Smart’s impairment. Whereas rape of
an intoxicated person requires only that a reasonable person
would know of the other’s impairment, an attempt to commit this
crime requires specific intent to have sex with someone too
intoxicated to consent. The instructions muddled this concept in
two ways. First, the attempted rape instruction erroneously
imported the “reasonable person” mens rea for actual rape of an
intoxicated person. Second, the instructions precluded jurors from
considering the effect of appellant’s own intoxication on his
assessment of Smart’s condition. Without these errors, a juror

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may well have rejected a felony-murder finding and, in so doing,
rejected a verdict of first degree murder.
A. Background
At issue in this argument are the court’s instructions on
attempted rape, rape of an intoxicated person, and voluntary
intoxication.
The trial court gave CALCRIM No. 460, which defined
attempted rape to include: (1) “a direct but ineffective step
toward” an actual rape; and (2) an intent to commit rape. (35 CT
10439.) The instruction further stated: “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.)
One of those “separate instructions” was CALCRIM No. 1002 on
rape of an intoxicated person. (35 CT 10437.)
Under CALCRIM No. 1002, rape of an intoxicated person
required proof that: (1) the defendant had sexual intercourse with
a woman; (2) intoxication prevented the woman from giving legal
consent; and (3) “the defendant knew or reasonably should have
known” that intoxication prevented the woman from giving legal
consent. (35 CT 10437.)
The trial court also gave CALCRIM No. 625 on voluntary
intoxication. (35 CT 10434.) That instruction stated, in relevant
part:
You may consider evidence, if any, of the
defendant’s voluntary intoxication only in a
limited way. You may consider that evidence
only in deciding whether the defendant acted
with an intent to kill, the defendant acted with
deliberation and premeditation or the
defendant was unconscious when he acted . . .
You may not consider evidence of the defendant’s
voluntary intoxication for any other purpose.
(35 CT 10434.)

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B. Standard of review and cognizability
The trial court has a sua sponte duty to correctly instruct
on all offense elements, including all elements of any target
crime. (People v. Mil (2012) 53 Cal.4th 400, 409; People v. Hughes
(2002) 27 Cal.4th 287, 349.) When the court misinstructs on an
element, the error affects the accused’s “substantial rights” and
may be raised on appeal even without an objection. (§ 1259;
People v. Hillhouse (2002) 27 Cal.4th 469, 503.)
By contrast, an instruction on voluntary intoxication
constitutes a pinpoint instruction which the trial court need not
give sua sponte. (People v. Verdugo (2010) 50 Cal.4th 263, 295.)
But if the court does choose to instruct on the issue, “it must do so
correctly.” (People v. Castillo (1997) 16 Cal.4th 1009, 1015.) If it
does not, the issue is cognizable on appeal even without an
objection. (Ibid.)
Appellate courts apply independent review “in assessing
whether [jury] instructions correctly state the law.” (People v.
Posey (2004) 32 Cal.4th 193, 218.)
C. The trial court misinstructed on the elements of
attempted rape of an intoxicated person by replacing
the crime’s knowledge and intent requirement with a
constructive knowledge standard.
The Sixth and Fourteenth Amendments guarantee the
accused a jury trial based on proof beyond a reasonable doubt of
each element of the offense. (Apprendi v. New Jersey (2000) 530
U.S. 466, 476-478 (Apprendi).) Jury instructions violate these
constitutional principles where they omit or misdescribe an
essential offense element. (Neder v. United States (1999) 527 U.S.
1, 8-10 (Neder).)
Here, CALCRIM No. 460 defined attempted rape, including
its requirement that “[t]he defendant intended to commit rape.”
(35 CT 10439.) The instruction provided no further guidance on
how to decide if the defendant intended to commit rape. Instead,

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it directed jurors to seek that guidance from “the separate
instructions . . . on that crime.” (35 CT 10439.) The court did not
specify which instructions it meant but it instructed on three
types of rape: forcible rape, rape of an intoxicated person, and
rape of an unconscious person. (35 CT 10435-10438.) Only rape of
an intoxicated person (CALCRIM No. 1002) is at issue here.
Rape of an intoxicated person may be based on either actual
or constructive knowledge that the other person is too intoxicated
to consent. (People v. Linwood (2003) 105 Cal.App.4th 59, 71; §
261, subd. (a)(3).) Constructive knowledge exists when the
defendant “reasonably should have known” that the other’s
intoxication “precluded consent.” (Linwood, at p. 71.) CALCRIM
No. 1002 conveyed this concept by requiring the prosecution to
prove that the defendant had sex with a woman, the woman was
too intoxicated to resist, and “[t]he defendant knew or reasonably
should have known” that her intoxication prevented her from
resisting. (35 CT 10437.)
The constructive knowledge standard, however, does not
apply to the crime of attempted rape of an intoxicated person.
Even when the completed crime requires only a general intent or
no intent at all, an attempt to commit that crime requires a
specific intent. (People v. Fontenot (2019) 8 Cal.5th 57, 67-69; see
also People v. Bailey (2012) 54 Cal.4th 740, 747-750.) For
attempted rape of an intoxicated person, the specific intent
includes both an intent to have intercourse and to do so “with a
person incapacitated by intoxication.” (People v. Braslaw (2015)
233 Cal.App.4th 1239, 1249.) The instructions here misstated this
principle by incorporating the substantive crime’s constructive
knowledge standard into the instruction on attempted rape. (35
CT 10437, 10439.)
In People v. Dillon (2009) 174 Cal.App.4th 1367, 1377-1378
(Dillon), the trial court instructed on both forcible sexual

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penetration and assault with intent to commit that same crime.
The latter instruction included a specific intent element but it
referred the jury to the instruction on forcible sexual penetration
to decide if the defendant possessed that intent. (Id. at p. 1378.)
The defendant argued that, by doing so, the assault instruction
omitted the requirement of specific intent to not only do the act
but do it without the other’s consent. (Ibid.) The Court of Appeal
disagreed, finding that jurors would understand assault’s specific
intent requirement embraced every element of forcible sexual
penetration – including the element that the victim not consent.
(Id. at pp. 1378-1380.)
As in Dillon, the attempt instruction in this case directed
jurors to the substantive rape instructions to decide if appellant
intended to commit rape. (35 CT 10439.) The difference is that, in
this case, the instruction on rape of an intoxicated person did not
include all the elements needed for attempt. Even if jurors
understood that CALCRIM No. 460’s specific intent requirement
embraced all elements of CALCRIM No. 1002, the latter
instruction included no actual knowledge element for the former
to embrace. Jurors who read the two instructions would have
understood that attempted rape of an intoxicated person requires
a specific intent to have sexual intercourse with someone whose
intoxication, in fact, prevented her from consenting. But they
would have mistakenly believed attempt’s mens rea element to be
satisfied so long as a reasonable person would have known of the
other’s impairment.
By permitting jurors to find the target crime proven if
appellant “reasonably should have known” of Smart’s condition,
the instructions misstated the intent element of attempted rape
of an intoxicated person. They, therefore, deprived appellant of
his Sixth and Fourteenth Amendment right to a jury verdict

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based on proof beyond a reasonable doubt of all essential offense
elements. (Apprendi, supra, 530 U.S. at pp. 476-478.)
D. The trial court exacerbated its error by erroneously
precluding jurors from considering appellant’s own
intoxication on the specific intent element of
attempted rape.
In addition to the error discussed in the previous
subsection, the trial court made a second key instructional error:
it prohibited jurors from considering the effect of appellant’s own
intoxication on his knowledge of Smart’s impairment.
A defendant has a Fourteenth Amendment due process
right to show he did not possess the mental state required to
commit a charged crime. (People v. Saille (1991) 54 Cal.3d 1103,
1116; Patterson v. New York (1997) 432 U.S. 197, 215-216.)
Section 29.4, subdivision (b) applies this principle by allowing the
accused to present evidence that his voluntary intoxication
prevented him from “actually form[ing]” the specific intent
required for a charged offense. (See also People v. Mendoza (1998)
18 Cal.4th 1114, 1128.)
Since attempted rape of an intoxicated person requires
actual knowledge of the other’s impairment (See Argument VI.C,
supra, at pp. 92-95), it follows that evidence of the defendant’s
own voluntary intoxication is admissible to show he lacked this
knowledge. (People v. Clark (1993) 5 Cal.4th 950, 1021 [voluntary
intoxication may negate element of intent to rape required for
felony-murder in the commission of a rape].) Yet, CALCRIM No.
625 precluded jurors from considering the voluntary intoxication
evidence on this issue or, more generally, on the specific intent
element of attempted rape. Instead, it told jurors they could
consider appellant’s voluntary intoxication only on the issues of
intent to kill, premeditation, and unconsciousness but not “for
any other purpose.” (35 CT 10434.)

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 By improperly limiting the jury’s use of the voluntary
intoxication evidence, the trial court prevented appellant from
showing he lacked the mental state required for attempted rape
of an intoxicated person. The error, therefore, violated appellant’s
Fourteenth Amendment due process rights.
E. It cannot be said beyond a reasonable doubt that the
jury would have convicted of first degree murder in
a trial without the two instructional errors.
When jury instructions misstate an essential offense
element, the error requires reversal so long as “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. 15.)
Because of the misinstruction on the intent element of
attempted rape, the prosecution did not have to persuade jurors
that appellant actually knew Smart was too intoxicated to
consent. He only had to persuade them that a reasonable person
would have known. That was an easy showing to make. Multiple
witnesses saw Smart lying down on the neighbor’s lawn near the
end of the party. (7 RT 1913-1915; 8 RT 2175-2177; 10 RT 2741-
2742.) Others testified that she was unsteady, slurring her words,
and “out of it.” (3 RT 780; 4 RT 1046; 7 RT 1927; 8 RT 2113, 2115-
2116.) To a reasonable onlooker, such behavior would have clearly
signaled that intoxication prevented Smart from consenting.
Smart, however, was not the only one who became
intoxicated at the Crandall Way party. Appellant did too.
Appellant told police he had “[t]oo much” to drink, including 20
and 22-ounce beers before he left his dorm room, plus another
seven to eight beers at the party. (35 CT 10366, 10379-10381; 13
RT 3680.) He became so drunk that he threw up after returning
to his dorm. (35 CT 10366; 13 RT 3623.) Timothy Davis
corroborated his account, testifying that appellant looked drunk
at the party. (36 RT 10513.)
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 Given appellant’s significant alcohol intake, a juror could
have had reasonable doubt about his ability to appreciate the
extent of Smart’s impairment. Appellant, himself, told police
Smart was drunk but he did not specify the degree of her
intoxication. (35 CT 10373; 13 RT 3617.) In one interview, he said
Smart needed help walking on the way home. (12 RT 3415-3416.)
In another, he said she was “walking just fine.” (35 CT 10389.)
As discussed earlier, the record sheds no light about when
appellant’s attempt at sex allegedly happened. Appellant, of
course, disputes that it happened at all. But if it did, it could have
occurred hours later, after Smart had become less noticeably
impaired. If so, then appellant’s own intoxication could have
caused him to honestly but unreasonably believe she had sobered
up enough to give legal consent to sexual intercourse.
The erroneous instruction on voluntary intoxication
evidence only reinforced that actual knowledge of Smart’s
condition was not at issue. If it had been, then jurors would have
likely understood that it was impossible to consider appellant’s
actual knowledge without considering the effect of the alcohol on
his perceptions. By expressly precluding jurors from considering
appellant’s voluntary intoxication on the intent element of
attempted rape, the court conveyed – again – that his subjective
impressions simply did not matter on that offense.
At least one appellate court has found erroneous voluntary
intoxication instructions prejudicial even when the jury otherwise
received correct instructions on the offense elements. In People v.
Cameron (1994) 30 Cal.App.4th 591, 594, the court precluded
jurors from considering voluntary intoxication evidence on the
issue of implied malice – though, at the time, it was admissible on
that issue. (People v. Whitfield (1994) 7 Cal.4th 437, 450-451.)
The Court of Appeal reversed, citing the importance of the

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voluntary intoxication evidence to the defendant’s imperfect self-
defense claim. (Cameron, at pp. 601-602.)
The voluntary intoxication evidence was equally important
in this case. The obvious nature of Smart’s impairment made it
difficult to miss – except by a person who, himself, had far too
much to drink. By prohibiting jurors from considering appellant’s
intoxication, the trial court prohibited them from considering the
only evidence which could plausibly negate the knowledge
component of attempted rape of an intoxicated person.
The jury’s verdict does not reveal which first degree murder
theory any juror relied on. However, the evidence on the other
theories was weak to nonexistent. As discussed in Argument V,
supra, at p. 88-90, the record contained no evidence of
premeditated murder or actual sexual intercourse. It also
contained no evidence that appellant attempted to achieve sex
forcibly or when Smart was unconscious.
A felony-murder verdict, based on attempted rape of an
intoxicated person, required no proof of actual intercourse, no
proof of premeditated murder, no proof that appellant used force,
and no proof that Smart was unconscious. It, thus, represented
the single easiest path to a first degree murder conviction in this
case. That path became even easier after the court replaced the
crime’s actual knowledge standard with one based on constructive
knowledge. And it became still easier when the court improperly
limited the jury’s use of voluntary intoxication evidence. In such
circumstances, at least one juror likely convicted of first degree on
the rationale that the killing occurred in the commission of an
attempted rape of an intoxicated person. As a conviction under
that theory rested on incorrect legal principles, this Court must
reduce the crime to second degree murder or remand for a retrial
on first degree murder. (Chiu, supra, 59 Cal.4th at p. 168.)

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 VII.
The errors discussed in Arguments II, III,
IV, and VI caused appellant cumulative
prejudice which violated his Fourteenth
Amendment due process rights.
“The cumulative effect of multiple errors can violate due
process even where no single error rises to the level of a
constitutional violation or would independently warrant
reversal.” (Parle v. Runnels (9th Cir. 2007) 505 F.3d 922, 927; see
also Chambers v. Mississippi (1973) 410 U.S. 284, 290, fn. 3.) A
Fourteenth Amendment due process violation occurs when
multiple errors, in cumulation, deprived the accused of a fair
trial. (Chambers, at pp. 302-303; see also People v. Hill (1998) 17
Cal.4th 800, 844-845.) If any single error offends due process,
cumulative prejudice must be assessed under the “harmless
beyond a reasonable doubt” standard. (People v. Woods (2006) 146
Cal.App.4th 106, 117.)
The errors discussed in Arguments II, III, and IV caused
appellant cumulative prejudice requiring reversal of his murder
conviction. S.D. and Ro.D.’s testimony portrayed appellant as a
serial predator who drugs and sexually assaults unsuspecting
women at bars and parties. The prosecutor used their testimony
throughout closing argument to assert that appellant had done
exactly this to Kristin Smart – then killed her during the
commission of that sexual assault. (39 RT 11440-11441, 11494-
11947; 41 RT 12096-12098.)
Boelter’s improper opinion testimony, and recitation of
hearsay, lent further credence to the prosecutor’s theory by
showing that Smart’s behavior was consistent with someone on
date rape drugs. The prosecutor strengthened his theory even
further by using the shock value of the ball gag photograph to
portray appellant as a violent sexual predator. (41 RT 12095-
12096.) In a trial without S.D. and Ro.D.’s testimony, Boelter’s

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improper testimony, and the prosecutor’s misconduct, at least one
juror may have had reasonable doubt about appellant’s guilt on
the murder charge.
In addition, the errors discussed in Arguments II through
IV, and the one discussed in Argument VI, were cumulatively
prejudicial as to the degree of murder. All four errors spoke to the
knowledge and intent element of attempted rape of an intoxicated
person. By portraying appellant as a sexual predator, the first
three errors implied to jurors that he joined Smart on the way
home precisely because he knew she had drunk to excess or
because he had personally drugged her. The instructional errors
went one step further by making it irrelevant whether appellant
knew of Smart’s intoxication, so long as a reasonable person
would have known. Together, the errors significantly increased
the chances of a first degree murder verdict based on attempted
rape of an intoxicated person.
Absent the errors discussed above, it cannot be said beyond
a reasonable doubt that jurors would have convicted appellant of
murder – let alone first degree murder. This Court must reverse
appellant’s conviction or reduce it to second degree murder.
CONCLUSION
For all of the foregoing reasons, appellant respectfully
requests that this Court reverse or reduce his murder conviction
and remand his case to Monterey County Superior Court for
retrial. (See § 1033, subd. (a); § 1033.1.)
DATED: October 21, 2024
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 25,460 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 21st day of October,
2024.

By: /s/ Solomon Wollack

Solomon Wollack

- 101 -
 PROOF OF SERVICE
I, SOLOMON WOLLACK, declare that I am over the age of 18, an
active member of the State Bar of California, and not a party to this action.
My business address is P.O. Box 23933, Pleasant Hill, California 94523. On
the date shown below, I served the within
APPELLANT’S OPENING BRIEF
(Public – Redacts material from sealed record)

to the parties below by:

X BY ELECTRONIC TRANSMISSION – Using the TrueFiling system
to serve a PDF copy of the document on the following parties at the e-mail
addresses indicated:

Office of the Attorney General Mr. Jonathan Grossman

Los Angeles, CA 90013 Sixth District Appellate Program
[email protected] San Jose, CA 95113
(Respondent) [email protected]
(Appellant)
California Appellate Project –
Los Angeles
Los Angeles, CA 90071
[email protected]

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. Chris Peuvrelle Mr. Dan Dow

Deputy District Attorney Mr. Eric Dobroth
Monterey County Office of the District Attorney
Salinas, CA 93901 San Luis Obispo County
[email protected] San Luis Obispo, CA 93408
[email protected]
[email protected]
Ms. Rebecca Cripe Mr. Robert Sanger
Office of the District Attorney Sanger Law Firm, P.C.
San Luis Obispo County Santa Barbara, CA 93101-7149
San Luis Obispo, CA 93408 [email protected]
[email protected]

- 102 -
 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 Ruben Flores

Monterey County (Defendant/Appellant)
Attn: The Hon. Jennifer O’Keefe
240 Church Street
Salinas, CA 93901

I declare under penalty of perjury the foregoing is true and correct.

Executed this 21st day of October, 2024 at Pleasant Hill, California.

/s/ Solomon Wollack

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 Court of Appeal, Second Appellate District
Eva McClintock
Electronically FILED on 10/21/2024 by Sherry Claborn, Deputy Clerk

PROOF OF SERVICE
STATE OF CALIFORNIA
California Court of Appeal, Second
STATE OF CALIFORNIA
Appellate District
California Court of Appeal, Second
Appellate District
Case Name: The People v. Flores
Case Number: B329873
Lower Court Case Number: 22CR003712

At the time of service I was at least 18 years of age and not a party to this legal
1.
action.

2. My email address used to e-serve: [email protected]

3. I served by email a copy of the following document(s) indicated below:

Title(s) of papers e-served:

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Service Recipients:
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Sixth Sixth District Appellate Program [email protected] e- 10/21/2024
Court Added Serve 10:17:58
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Solomon Wollack Serve 10:17:58
170003 AM
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196911

This proof of service was automatically created, submitted and signed on my behalf
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I declare under penalty of perjury under the laws of the State of California that the
foregoing is true and correct.

10/21/2024
Date

/s/Solomon Wollack
Signature

Wollack, Solomon (170003)

Last Name, First Name (PNum)

Solomon Wollack
Law Firm