P. v. Pearson SC

IN THE SUPREME COURT OF
CALIFORNIA

THE PEOPLE,
Plaintiff and Respondent,
v.
KEVIN DARNELL PEARSON,
Defendant and Appellant.

S212159

Los Angeles County Superior Court
NA039436

August 17, 2026

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

*
Presiding Justice of the Court of Appeal, First Appellate
District, Division Five, assigned by the Chief Justice pursuant
to article VI, section 6 of the California Constitution.
PEOPLE v. PEARSON
S212159

Opinion of the Court by Corrigan, J.

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

1
See Penal Code sections 187, 189, subdivision (a), 190.2,
subdivision (a)(17), (a)(18).
2
See Penal Code sections 206, 209, subdivision (b)(1), 211,
212.5, subdivision (c), 261, subdivision (a)(2), 264.1,
subdivision (a), 289, subdivision (a)(1), 667.61,
subdivision (e)(3), 12022, subdivision (b)(1); 12022.3.
3
See Penal Code section 667.61, subdivision (d)(2).
4
We also reversed the personal deadly weapon use
allegations for insufficient evidence and the torture-murder
special circumstance allegation for instructional error, and
concluded the trial court improperly sentenced defendant for

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new penalty trial and resentencing. (Pearson I, at p. 334.) A
penalty phase retrial resulted in a second death verdict in 2013.
This appeal is automatic. (Pen. Code, § 1239, subd. (b).) We
affirm.
I. FACTS5
A. Prosecution Evidence
After 11:00 p.m. on December 29, 1998, Sigler left her
Long Beach home to go to the store. A friend had given her a
food stamp booklet containing six dollars of stamps and asked
her to buy him soda and a candy bar. The following day, Sigler’s
naked body was found on a freeway embankment in Long Beach.
Her body was partially covered in mulch, 10 to 15 feet from the
bottom of the embankment, below a drainage ditch. The area
could only be accessed from the street by scaling a six-foot chain
link fence supported by wooden stakes. A substantial amount
of blood was found in the drainage ditch and on the fence. Police
recovered one of Sigler’s shoes, a broken wooden stake, and a
food stamp book cover. An autopsy recorded 114 wounds and 25
broken bones. Sigler died from traumatic injuries to her head
and neck, including multiple skull, face, and neck fractures and
numerous lacerations. One ear was partially torn off, consistent
with being struck with a wooden stake. Injuries to her neck and
petechia in her eyes were consistent with someone standing on
her neck with a boot. Her genital and anal regions were bruised
and lacerated. Her vaginal tissue was torn, consistent with

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

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penetration by a wooden stake. A wooden splinter was found
embedded four to five inches deep at the back of her vagina.
Bruising and lacerations around her abdomen and thighs were
consistent with being struck by a wooden stake. There were bite
marks on her breast and thigh. Arm lacerations were consistent
with defensive wounds and scraping against the top of a chain
link fence. All of her injuries were inflicted before her death.
Monte Gmur lived next door to defendant in Long Beach.
Gmur had a music studio in his house and regularly invited
acquaintances to use it. He considered defendant a friend and
saw him almost daily. One night between Christmas and New
Year’s Eve in 1998, defendant, Warren Hardy, and Hardy’s
brother Jamelle Armstrong, along with their friend Chris, came
to Gmur’s house around 6:00 p.m. They drank for three to four
hours, becoming “boisterous” and “stupid drunk” but able to
walk normally. Defendant was wearing brown Dickies pants, a
khaki shirt, and work boots. Hardy wore a belted black jacket
and a black leather hat. At some point, defendant asked Gmur
if they could use a spare room to “put Chris on the block,” which
Gmur understood to mean they would beat Chris to initiate him
into their gang. When Gmur refused, the group went outside
and returned after a few minutes. Gmur later heard Hardy on
the phone saying, “Chris is cool,” and they would “call him
Playboy.”
At around 1:00 a.m. the following morning, defendant,
Hardy, and Armstrong arrived at the Los Angeles home of
Tiyarie Felix. Felix was Hardy’s girlfriend and the mother of
their child. Defendant carried a duffle bag, which he took with
him when he left.

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Later that day, Gmur heard about police activity in the
area and asked defendant on the phone what they had done.
Defendant replied they had “killed a white woman” but Gmur
did not believe him. The next day, defendant spoke to Gmur in
person and recounted the following version of events.
Defendant, Hardy, Armstrong, and Chris left Gmur’s house and
walked to the train station, where Chris left the group.
Thereafter, defendant saw Hardy across the street punching a
woman. Hardy asked the woman if she had any money, which
she denied. Hardy went through her pockets and found cash.
Hardy threw the woman onto the ground and began to beat her
with a stake and stomp on her. The three men removed her
clothes and put them in a bag. One of her shoes went missing.
They lifted her body over a fence, threw her belongings into a
dumpster and caught a bus to Los Angeles. After several
unsuccessful attempts, Gmur eventually contacted police on
January 5, 1999, and reported defendant’s admissions.
Defendant was arrested the next day. He initially denied
any involvement in Sigler’s murder but admitted his presence
when detectives told him he had been linked to the crime. His
descriptions of events continued to evolve. Defendant next told
detectives that he, Hardy, and Armstrong left Chris at the train
station and were walking to catch a bus when defendant heard
someone scream. He looked back and saw Hardy punching a
woman. She spun away and ran toward a fence, whereupon
Hardy picked up a stake and hit her in the back. The woman
climbed over the fence and the three men followed. Hardy
dragged her to a drainage ditch, ripped off her clothing,
unzipped his pants, and demanded oral copulation. Defendant
told Hardy he could get AIDS because the woman was bleeding.
Hardy repeatedly hit the woman in the head and upper body

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with the stake, then thrust it into her vagina, penetrating six to
eight inches. Armstrong eventually convinced Hardy to stop.
Defendant and Armstrong took off their shirts, wrapped them
around the woman’s wrists and legs, and moved her body
further up the embankment. They put her clothing into a bag
and walked toward the bus stop. They threw the stake away in
a field and boarded a bus to Los Angeles where they threw the
bag into a trash can. They walked to Felix’s house and spent
the night.
Defendant also gave two taped statements which were
played for the jury. In his first recorded statement, defendant
added that, after the victim fell over the fence, Hardy chased,
stomped, and punched her and beat her with the stake. The
stake was about two feet long and an inch and a half wide.
Defendant left his bloody shirt at Felix’s house. He did not see
anyone bite the victim and denied that he or Armstrong tried to
have sex with her. After the interview, he took the detectives to
the crime scene and the locations he described. Neither the
clothes nor the stake were recovered.
Hardy and Armstrong were arrested and interviewed.6
Detectives returned to defendant, saying his statements

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

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conflicted with those of Hardy and Armstrong. Defendant again
modified his recitation of events. In his new version, he
elaborated that, after Chris left the group, defendant, Hardy,
and Armstrong were walking down the street yelling, “Merry
Christmas, Happy New Year,” when a woman across the street
responded in kind. They walked over and started a
conversation. At some point, Hardy asked her if she had money
and defendant began going through her pockets. When she tried
to escape, defendant and Armstrong pulled her to the ground
and ripped off her clothing, as Hardy continued searching for
money. Hardy and Armstrong began stomping on the woman,
and Hardy said that they “have to finish this.” Defendant and
Armstrong threw the woman over the fence into a drainage
ditch. The three men followed and Armstrong dragged the
victim to an area behind a business. Defendant raped her while
Armstrong held her down. Hardy beat her with a wooden stake
while defendant and Armstrong stomped on her. Defendant was
wearing steel-toed work boots. Hardy and Armstrong took turns
shoving the stake into the victim’s vagina. Defendant and
Armstrong used their shirts to drag her up the embankment,
collected her clothes, and left. They found six dollars worth of
food stamps, which Hardy later spent at a market in Los
Angeles. The recording of this latest statement was also played
for the jury.
In 1999, Janisha Williams lived in Long Beach with her
mother, Rosemary Furtado. Williams was a friend who had
known defendant for about 10 years. About a week before his
arrest, he came to speak with Furtado and described how he had
kicked a woman six times in the head and helped move her body.
After defendant’s arrest, he and Williams exchanged letters in
which he acknowledged that he had kicked the victim in the

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head six times and helped move her body and that “now he has
to pay.” Williams testified she and defendant were members of
the Capone Thug Soldiers (CTS) gang, which had about 30
members. Defendant was known as “Scrappy” and had a hot
temper. The gang engaged in violent conduct and would initiate
new members by “jumping them in.” Williams had seen
defendant hit people on bicycles with sticks and kick them.
Furtado had known defendant nine to 12 years and
considered him like a son. Sometime before his arrest,
defendant came to speak to her, but she was busy. He wrote to
her from jail admitting he had kicked the victim four or five
times. He wrote that the victim had been raped but he did not
remember who had done so. Defendant claimed Hardy and
Armstrong beat the victim and he kicked her after she was
unconscious. Furtado had considered defendant a “very sweet”
person but modified her views after his convictions.
Steven Lam, Furtado’s husband and Williams’s
stepfather, overheard some of defendant’s conversation with
Furtado. Defendant was crying and said he had done
“something that he shouldn’t have.” After his arrest, defendant
wrote Furtado a letter wherein he admitted kicking the victim
six times in the head but denied killing her. Lam had known
defendant for seven years and believed he was a good person.
His opinion changed after defendant was convicted in the earlier
trial.
In January 1999, police recovered several items from
Felix’s home, including Dickies pants and some boots that Gmur
identified as defendant’s, a tan shirt, and Hardy’s black leather
jacket and hat. Blood stains on the clothing and boots matched
Sigler’s DNA. Armstrong’s blood and semen were found on

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another shirt. A store clerk identified Hardy as a customer who
used some food stamps around New Year’s Day 1999. The food
stamps matched the booklet cover recovered at the crime scene.
In February 2002, while defendant was awaiting trial, ten
razor blades were found under the mattress in his jail cell. A six
by 24 inch piece of plastic was found under his bunk. Officers
also recovered magazines, rolled up newspapers, 60 pieces of
cloth, and a bottle of bleach. All were items of contraband that
could be fashioned into weapons.
Sigler’s son testified he was in ninth grade when his
mother was murdered. He dropped out of high school after her
death, and the murder still affected him both emotionally and
physically.
B. Defense Evidence
Defendant presented his retrial defense through three
witnesses: Delisa King, Eugeniuz Bland, and James McGee. In
1990, when defendant was about 13 years old, he came to live
with King, Bland, and their six children. King knew defendant’s
mother Collette and had visited her house, which was unkempt
and unsanitary. Defendant attended high school in Long Beach
and had joined the ROTC but did not graduate. He and King’s
son Jarod were members of CTS, which King described as a rap
group, not a gang. Defendant joined the Job Corps. He moved
from King’s home around 1995 and lived with Jarod. King
trusted defendant with her children and still loved him. She
believed the crimes were uncharacteristic for him.
Bland went to high school with defendant’s mother and
considered defendant a part of his family. He knew CTS to be a
rap group and was not aware that its members engaged in
criminal activity. He did not know defendant to be violent and

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thought the crimes were out of character for him. Although he
considered the crimes to be “pretty horrendous” and thought
defendant should be punished, Bland still loved defendant and
his opinion of him had not changed.
James McGee grew up with King and Bland and often saw
defendant at their home. Defendant joined in family activities
and played cards with McGee. Defendant never acted violently
and seemed passive. He thought defendant was a good person
and considered the crimes unlike him. His convictions did not
change McGee’s mind about defendant’s character.
The parties stipulated that defendant had no prior
convictions before this case.
II. DISCUSSION
A. Penalty Retrial Issues
1. Reappointment of Original Trial Counsel for the
Retrial
Defendant makes various challenges to the reappointment
of his original trial counsel to represent him at the penalty
retrial.7 For the reasons discussed below, we reject his claims.
a. Background
Upon remand following reversal of the initial death
judgment, defendant first appeared before Judge Tomson T.
Ong at the Long Beach courthouse on March 21, 2012. He was
present with attorney Nancy Sperber, who had represented him
at his first trial before Judge Ong. Judge Ong granted Sperber’s
request to continue the matter to April 5, 2012, to allow further

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

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

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

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these facts, and again, he confirmed that I should continue to
represent Mr. Pearson, and that I should prepare my proposal
for consideration.” Sperber stated that she was willing to
represent defendant for a set rate. An order dated April 2, 2012,
stated, “The Judicial Panel, having reviewed Counsel’s motion
submitted pursuant to the Memorandum of Understanding Re:
Central District Capital Case Appointment,” reappointed
Sperber “as counsel to represent [Pearson] on the re-trial of the
penalty phase.”
On April 5, 2012, defendant was present when Sperber
informed the court that she had spoken to appellate counsel
Petermann, who expressed his belief she should not be
representing defendant on remand because he had filed a
habeas corpus petition on defendant’s behalf alleging her
ineffective assistance at the first trial. Sperber told the court:
“I informed the judges downtown of [the habeas petition]. It was
my understanding that they were served with the petition and
they were aware of it.” She understood that the Capital Case
Committee had reviewed the matter and “felt that I should,
nevertheless, be re-appointed and be representing Mr. Pearson.
I have a copy of that order. It looks like it was signed on April
2nd of this year.” The court expressed surprise at the ineffective
assistance claims in light of Sperber’s “outstanding service at
trial.” Sperber indicated she would raise the issue with “the
judges downtown. I will let them know of the situation.” Judge
Ong noted for the record that he “is not involved in the
appointment process.” The prosecution elected to retry the
penalty phase.
On August 15, 2012, appellate counsel Petermann filed a
motion to remove Sperber as defendant’s trial counsel. The
motion recounted arguments made in his habeas petition, which

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

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

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

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

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The court also asked defendant if, when he said earlier
that he had authorized Petermann to file the removal motion,
he did so “because you thought you were protecting Ms.
Sperber’s interests.” Defendant replied: “Let me clarify. What
I was saying to Ms. Sperber is that Mr. Petermann came to see
me at the county jail. He was explaining everything that was
going on with the appeals process and that usually the
appellate — appellate cases, all trial attorneys are referred to as
incompetent attorneys when they file any paperwork. That’s
what I was letting Ms. Sperber know that, I gave him
permission to file that. But when you asked did I say it, I
thought that you was talking about for the higher court, not for
the trial.” Sperber urged that Petermann was interfering with
her attorney-client relationship with defendant, and the court
signed an order limiting jail visitations to Sperber and her
investigator. Sperber later clarified that, under the jail
procedure adopted, she was to be called for authorization if
another attorney tried to visit defendant.
Before the scheduled Marsden hearing on September 13,
Petermann filed a supplemental brief in the trial court,
enlarging upon the allegations in the habeas petition. He
asserted that Sperber had been ineffective at the first trial by
failing to call “mental state experts” at the guilt phase and to
pursue various mitigation themes at the penalty phase.
Petermann maintained that Sperber now had a conflict of
interest because she “may face the dilemma of pursuing her
client’s multiple defenses that by implication require the
admission of serious omissions in the previous preparation of
her client’s defense.”
On September 13, Sperber moved to strike Petermann’s
motion because defendant did not authorize him to file it. The

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

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

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

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

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opportunity to defend against the charge’ [citation].” ’
[Citation.] A defendant ‘has no right to be present [at] routine
procedural discussions that could not affect the outcome of the
trial.’ [Citation.] ‘Thus a defendant may ordinarily be excluded
from conferences on questions of law, even if those questions are
critical to the outcome of the case, because the defendant’s
presence would not contribute to the fairness of the proceeding.’
[Citation.] We review de novo a defendant’s claim that he was
entitled to be present during a chambers conference.” (People v.
Oyler (2025) 17 Cal.5th 756, 795 (Oyler).) “The burden is on a
defendant to show that the ‘ “absence prejudiced his case or
denied him a fair and impartial trial.” ’ ” (People v. Caro (2019)
7 Cal.5th 463, 479.)
Defendant cites no case holding that the initial
appointment of counsel is a critical stage of trial requiring his
presence. “[T]he right to counsel of choice does not extend to
defendants who require counsel to be appointed for them.”
(United States v. Gonzalez-Lopez (2006) 548 U.S. 140, 151;
People v. Hernandez (2012) 53 Cal.4th 1095, 1106.) As
defendant had no constitutional right to have any particular
counsel appointed, including someone other than Sperber, it
seems doubtful that he nevertheless had a constitutional right
to be present when that appointment was made. Although
defendant argues he was deprived “of his right to make an
informed decision regarding the appointment of conflict free
counsel,” he does not explain how his presence, at the time of
Sperber’s appointment, would have facilitated such
decisionmaking. Indeed, any claim of prejudice appears belied
by the circumstance that defendant later expressly withdrew
Petermann’s motion to remove Sperber as his trial counsel.

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To be sure, a defendant has a right to be present at a
proceeding to determine whether counsel actually has a conflict
of interest or otherwise should be removed. (See People v. Perry
(2006) 38 Cal.4th 302, 313.) Sperber’s initial appointment by
the Committee was not such a proceeding but one more akin to
a “routine procedural matter for which the defendant’s
attendance is not required.” (Id. at p. 314; see Oyler, supra, 17
Cal.5th at p. 795.) Further, defendant was not deprived of his
right to make an informed decision as to counsel or denied the
opportunity to litigate the issue. Once counsel has been
appointed, if a defendant has an objection or reservation about
the lawyer who has been provided, he may personally seek
counsel’s replacement through the Marsden process. (See
Marsden, supra, 2 Cal.3d at pp. 123–126; see also People v.
Smith (1993) 6 Cal.4th 684, 690–697 (Smith).) We turn now to
the court’s handling of that process here.
c. Marsden Hearing/Conflict of Interest
A defendant is entitled to seek substitution of appointed
counsel “whenever, in the exercise of its discretion, the court
finds that the defendant has shown that a failure to replace the
appointed attorney would substantially impair the right to
assistance of counsel [citation], or, stated slightly differently, if
the record shows that the first appointed attorney is not
providing adequate representation or that the defendant and
the attorney have become embroiled in such an irreconcilable
conflict that ineffective representation is likely to result.”
(Smith, supra, 6 Cal.4th 684, 696; see People v. Carter (2024) 15
Cal.5th 1092, 1099.) “Essentially, a claim of conflict of interest
constitutes a form of ineffective assistance of counsel.” (People
v. Perez (2018) 4 Cal.5th 421, 435.)

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On appeal here, defendant has taken conflicting positions
regarding his claim of error. In his opening brief, defendant
argued the trial court erred by treating the conflict of interest
issue presented by Petermann’s motion as a Marsden motion.
He urged the motion was initiated by Petermann, not himself.
Instead, he suggested that Petermann’s motion “was and is
premised on published legal authority, technical principals [sic],
and supporting facts well beyond [defendant’s] knowledge,
understanding, or cognizance.” In his supplemental opening
brief, however, defendant changed his approach to contend that
Marsden actually does apply, and the court erred by not
conducting an adequate hearing. He argues Petermann’s
habeas petition, which alleged ineffective assistance of counsel
at the first trial, “triggered the trial duty to inquire and to hold
a Marsden-type hearing.”
Initially, to the extent defendant claims the court should
have conducted a Marsden hearing, the assertion fails. “If a
defendant who asserts inadequate representation seeks to
discharge appointed counsel and obtain a substitute attorney,
the court must allow the defendant to explain the basis for this
contention and to present specific instances of counsel’s
inadequate performance.” (People v. Wilson (2023) 14 Cal.5th
839, 863–864 (Wilson).) However, legal authority provides that
“a trial court is required to hold a Marsden hearing only when
the defendant requests one — ‘the trial court is not required to
conduct a Marsden hearing on its own motion’ [citation] or in
response to ‘criticism of appointed counsel that has been levied
by a nonparty[.]’ ” (Oyler, supra, 17 Cal.5th at p. 797.)
We have clarified that Marsden “was intended to afford
protection to the defendant’s right to counsel as guaranteed by
the Sixth Amendment, and the constitutional right to counsel is

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personal to the defendant and ordinarily cannot be asserted
vicariously.” (People v. Martinez (2009) 47 Cal.4th 399, 419
(Martinez).) Further, “[w]e would risk encouraging interference
with the attorney-client relationship were we to hold that a trial
court must conduct a Marsden hearing when a third party
complains concerning the representation received by a
defendant.” (Id. at p. 420.)
Defendant did not seek to remove Ms. Sperber as his
counsel and clarified that he had not authorized Petermann to
do so on his behalf. However, in light of his claims here, we turn
to the facts reflecting what occurred in the trial court. Following
Petermann’s presentation, and defendant’s initial indication
that he had authorized Petermann to make it, the court said it
would “treat it as a Marsden motion.” It informed Petermann
that he need not remain and scheduled a Marsden hearing for a
later date. Petermann was never appointed or retained to
represent defendant in the trial court. He did not seek such an
appointment, nor did defendant request it.
After a recess following Petermann’s departure from the
courtroom, the trial court, in defendant’s presence, directly
addressed the potential for conflict and clarified defendant’s
understanding and wishes in that regard. Sperber informed the
court that she had spoken to defendant during the recess and he
said he had authorized Petermann’s motion to remove Sperber
because he believed he was protecting Sperber’s bar license by
doing so and that he did not, in fact, want Sperber removed as
counsel. Defendant clarified that Petermann, during a jail visit,
“explain[ed] everything that was going on with the appeals
process and that usually . . . appellate cases, all trial attorneys
are referred to as incompetent attorneys when they file any
paperwork.” Defendant had given Petermann permission “to

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file that” but when the court had previously asked if defendant
had authorized Petermann’s motion, defendant “thought that
[the court] was talking about for the higher court, not for the
trial.” On the date of the scheduled Marsden hearing, Sperber
reminded the court that defendant had “indicated that he did
not authorize Mr. Petermann to file these motions” to remove
Sperber as counsel and “Mr. Pearson has never expressed to me
a desire to [have Sperber] be relieved as counsel.” The court
asked defendant: “Mr. Pearson, there has been paperwork filed
by Mr. Petermann to try to remove Ms. Sperber from this case.
The first question that I have is are you now withdrawing this
motion to remove Ms. Sperber from this case?” Defendant
responded he was, and the trial court struck Petermann’s
motion.
As the record reflects, defendant was well aware of
Petermann’s opinion as to Sperber’s handling of the first trial
and Petermann’s view that she should not continue to represent
him on retrial. Upon questioning from the trial court, defendant
personally spoke to his knowledge of the circumstances and
clarified he did not wish to remove Sperber as his trial counsel
and had not intended to authorize Petermann to seek her
removal. At no time did defendant express any dissatisfaction
with Sperber’s representation. Under these circumstances, the
trial court properly struck Petermann’s motion and had no duty
to conduct a hearing under Marsden. (See Martinez, supra, 47
Cal.4th at p. 420.)
Independent of Marsden, however, “[w]hen the trial court
knows, or reasonably should know, of the possibility that
defense counsel has a conflict of interest, it has a duty to inquire
into the matter.” (Wilson, supra, 14 Cal.5th at p. 862, citing
Wood v. Georgia (1981) 450 U.S. 261, 272.) We addressed a

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similar claim in Wilson, wherein the defendant argued the filing
of a habeas petition alleging defense counsel had rendered
ineffective assistance at a prior trial created a conflict of interest
requiring counsel’s removal at the retrial. As in Wilson, “[w]e
need not resolve whether the existence of pending ineffective
assistance claims was sufficient to put the court on notice of a
potential conflict. Even assuming the court should have
inquired about a potential conflict, defendant fails to show
prejudice.” (Wilson, at p. 862.) “To demonstrate a prejudicial
conflict of interest, a defendant must show that defense counsel
was burdened by an actual conflict of interest that adversely
affected counsel’s performance.” (Ibid.)
Defendant’s only theory of an actual conflict rests on the
fact that Sperber did not pursue issues of lingering doubt and
other mitigation themes his habeas counsel claimed were not
adequately offered at the first trial. Defendant argues here that
Sperber did not present this evidence at retrial because doing so
would tacitly admit she did, in fact, offer ineffective assistance
at the first trial.
This is little more than rank speculation unsupported by
the appellate record. As described in Pearson I, Sperber initially
presented the testimony of defendant’s mother and a neighbor,
who described defendant’s difficult childhood and his
stepfather’s abusive behavior, defendant’s brother who testified
CTS was a rap group, not a gang, and a psychiatrist who
described defendant’s upbringing as well as his dynamic with
Hardy and Armstrong, and who opined that defendant was
afraid of his cohorts and too paralyzed during the crimes to
intervene. (Pearson I, supra, 53 Cal.4th at pp. 314–315.) She
shifted tactics at the retrial, calling three different witnesses, all
family friends of defendant. These witnesses described

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defendant as a generally passive person, confirmed his difficult
upbringing and stated that CTS was not a gang. They also
described the positive interactions defendant had with
themselves and their families. (See ante, at pp. 8–9.) As the
Attorney General observes, Sperber’s change in emphasis at the
retrial, to focus on good aspects of defendant’s character, was an
understandable tactical choice, especially since the prior
strategies of emphasizing his difficult personal and family
background and minimizing his responsibility for the crime
preceded the first jury’s death verdict. That counsel did not
choose to double down and present additional evidence in
furtherance of the same losing strategies at retrial hardly
reflected that she “shaped [her] defense strategy to avoid an
ineffective assistance finding.” (Wilson, supra, 14 Cal.5th at
p. 863.)
Defendant’s Sixth Amendment and related due process
challenges are rejected. He filed a habeas petition related to the
penalty retrial before this court in 2016, concurrently with the
briefing on appeal here. (See In re Pearson, S235715, matter
pending.) We express no opinion as to the merits of that still-
pending petition, which may be pursued on the basis of a more
complete record.
d. Exclusion of Petermann from Court
Proceedings
In his supplemental opening brief, defendant also argues
the court violated his Sixth Amendment right to counsel by
excluding Petermann “from Marsden proceedings and by
precluding attorney Petermann from conducting legal visits
with” defendant. Although the court initially concluded
Petermann’s motion should be “treat[ed] . . . as a Marsden” and
scheduled a hearing for a later date, the court ultimately did not

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conduct a Marsden hearing because defendant expressly
withdrew Petermann’s unauthorized motion. As noted, the
court conducted an unrelated in camera hearing relating to
Sperber’s access to records held by the public defender’s office.
(See ante, p. 12, fn. 9.)
As to jail visits, as noted, Petermann was not precluded
from visiting defendant but was required to seek Sperber’s
authorization for visits in light of the concern that he was
interfering with the attorney-client relationship. (See ante,
p. 14.) Ultimately, we need not decide whether this procedure
was proper because the appellate record does not reflect whether
Petermann was ever actually precluded from visiting defendant
in jail as a result of this procedure or otherwise. “Any matters
outside the record suggesting that [defendant] was prejudiced
may be raised in a petition for habeas corpus.” (People v.
Miranda-Guerrero (2022) 14 Cal.5th 1, 23.)
2. Prosecutorial Misconduct
Defendant contends the prosecutor committed misconduct
in her cross-examination of the defense witnesses. He argues
the prosecutor asked them improper questions about their
knowledge of details regarding the crime, proffered irrelevant
evidence, and attempted to turn family members against each
other. These claims lack merit.
a. Background
At the penalty retrial, the defense called three witnesses:
Delisa King and Eugeniuz Bland, with whom defendant lived as
a teenager; and James McGee, a family friend. On direct
examination, they all generally described defendant as
nonviolent and stated their belief that the crimes here were out
of character for him. Even in light his convictions, they affirmed

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

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

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and disapproved of them, but did not consider them reflective of
defendant’s character. Knowing about them did not change
McGee’s opinion of defendant. Shown crime scene photos by
defense counsel, McGee maintained they did not change his
views. On cross-examination, McGee confirmed that he still
believed defendant was a good person notwithstanding his
convictions. As with King, the prosecutor noted McGee had
indicated defendant was “respectful,” and asked if he thought it
respectful to rape and torture a woman and beat her with a
wooden stake. McGee agreed that would not be respectful. He
did not have contact with defendant after his arrest nor did they
discuss the crimes or the specifics of the attack. However, he
confirmed he was now aware of the details and that they did not
change how McGee felt about defendant.
b. Discussion
Defendant contends the prosecutor’s cross-examination of
defense witnesses elicited irrelevant evidence because they were
“only competent to render opinions about the character of the
boy that they knew when they knew him” but “not competent to
render opinions about the character of one who committed the
acts underlying” the current offenses. He suggests the
prosecutor was merely attempting to inflame the jury by turning
the defense witnesses against him.
Initially, as the Attorney General observes, although the
defense objected to the prosecutor showing King crime scene
photos, counsel never objected to questioning about whether
defendant had mentioned various details of the crimes to them.
Defendant asserts any objection would have been futile in light
of the court’s ruling allowing the prosecutor to show the photos
to King. However, King’s cross-examination as to her

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knowledge of details of the attack occurred before the prosecutor
attempted to show her the photos and counsel lodged no
objection to those questions. Nor was there an objection to
similar questions posed to the other witnesses, and the defense
itself showed the photos to subsequent witnesses. The failure to
object to a line of questioning generally forfeits a claim of error.
(See People v. Clark (2016) 63 Cal.4th 522, 587 (Clark); Evid.
Code, § 353, subd. (a).) Defendant asserts that, if his claim has
been forfeited, his counsel rendered ineffective assistance by
failing to object.
Those arguments also fail on the merits. The defense
chose to present character witnesses and solicit their views on
defendant’s current character. The defense is entitled to do so
as part of its case in mitigation. It is defendant’s current
character that is relevant on the issue of mitigation as weighing
against a death penalty verdict. “The applicable law is settled:
‘In general, the prosecution may not present evidence of a
defendant’s bad character during its penalty phase case unless
the evidence is admissible as one of the aggravating factors
listed in section 190.3.’ [Citation.] ‘ “[W]hen the defense
presents mitigating evidence of a defendant’s good character, it
has put the defendant’s character in issue, thus opening the door
to prosecution evidence tending to rebut that ‘specific asserted
aspect of [the defendant’s] personality.’ [Citation.] Such
rebuttal evidence, however, must be specific and ‘must relate
directly to a particular incident or character trait defendant
offers in his own behalf.’ ” ’ ” (People v. Thompson (2016)
1 Cal.5th 1043, 1125 (Thompson).) “ ‘The theory for permitting
such rebuttal evidence and argument is not that it proves a
statutory aggravating factor, but that it undermines defendant’s
claim that his good character weighs in favor of mercy.’ ” (People

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v. Loker (2008) 44 Cal.4th 691, 709.) “A prosecutor does not
commit misconduct by challenging the credibility of a defense
witness or the basis for the witness’s good opinion of a
defendant.” (People v. Earp (1999) 20 Cal.4th 826, 894.)
Here, the defense sought to persuade the jury by offering
testimony that those close to him currently considered him a
respectful, nonviolent person whom they loved and trusted and
that his crimes were an aberration. The prosecution was
permitted to test, through cross-examination, the bases of these
opinions and whether they were persuasive. The witnesses’
unfamiliarity with the details of the crimes was a relevant
consideration bearing on the weight of their testimony. As we
observed in Thompson: “Defense counsel asked the witness to
describe defendant’s character, and the evidence of [his] good
character thereby opened the door to legitimate cross-
examination about [his] bad character.” (Thompson, supra, 1
Cal.5th at p. 1126.) It should be noted as well that the cross-
examination here was consistent with Thompson’s observation
that rebuttal evidence as to defendant’s character “ ‘ “must be
specific and ‘must relate directly to a particular incident or
character trait defendant offers in his own behalf.’ ” ’ ” (Id. at
p. 1125.) A character witness is called to persuade the jury that
the witness knows the defendant and holds them in positive
regard. Fair cross-examination is allowed to undermine that
assertion and persuade the jury not to adopt it. The opponent
of the character witness is entitled to elicit testimony tending to
show the witness’s opinion is flawed, ill-informed, or not entitled
to credence.

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3. Ineffective Assistance of Counsel
Defendant contends his counsel rendered ineffective
assistance in four instances. His claims lack merit. “ ‘ “ ‘ “In
assessing claims of ineffective assistance of trial counsel, we
consider whether counsel’s representation fell below an
objective standard of reasonableness under prevailing
professional norms and whether the defendant suffered
prejudice to a reasonable probability, that is, a probability
sufficient to undermine confidence in the outcome.” ’ ” ’ ” (People
v. Barrett (2025) 17 Cal.5th 897, 969; see Strickland v.
Washington (1984) 466 U.S. 668, 687–688.) “ ‘On direct appeal,
a finding of deficient performance is warranted where “(1) the
record affirmatively discloses counsel had no rational tactical
purpose for the challenged act or omission, (2) counsel was asked
for a reason and failed to provide one, or (3) there simply could
be no satisfactory explanation.” [Citation.] “[W]here counsel’s
trial tactics or strategic reasons for challenged decisions do not
appear on the record, we will not find ineffective assistance of
counsel on appeal unless there could be no conceivable reason
for counsel’s acts or omissions.” ’ ” (People v. Dunn (2025) 18
Cal.5th 129, 169 (Dunn); see People v. Mendoza Tello (1997) 15
Cal.4th 264, 266–267.)
a. Trivializing mitigation evidence during voir
dire
Defendant contends his counsel made statements during
jury selection that tended to trivialize defendant’s childhood
background as mitigating evidence. He cites to three comments
made by counsel during the questioning of three prospective
jurors during individualized, sequestered inquiries regarding
their jury questionnaire responses. These prospective jurors
ultimately did not sit on the jury. Accordingly, the remarks

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

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

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

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

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

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Pearson’s life prior to the commission of this offense.” In
explaining that the weighing of particular evidence “is personal
to each and every juror,” counsel stated: “You might hear
something about Mr. Pearson and you are not going to hear this,
but I’m going to use this example when he was growing up he
was never allowed to go to Disneyland and you might say poor
kid that’s terrible. Somebody else might say tough luck, it’s
because he was a bad boy, okay. So they are looking at it as a
factor in aggravation. You are looking at it as a factor in
mitigation, the very same factor. That’s what you do in this
situation. [¶] The only thing that the jurors have to agree on is
the punishment as their verdict, okay?” The prospective juror
responded affirmatively that the juror could “do that.”
Defendant argues defense counsel improperly trivialized
defendant’s difficult life experience by comparing it to being
denied a puppy or a trip to Disneyland. The record belies
defendant’s claim. As the Attorney General observes, the first
two cited instances occurred in the context of questioning
prospective jurors who expressed some doubt regarding whether
a defendant’s life background should be considered at all in
determining the proper penalty. Defense counsel’s examples
highlighted that such background information should be
considered, that each individual juror’s assessment of whether
the offered information was mitigating may differ, and that
jurors must make their own evaluation of the evidence. This
line of inquiry served to clarify the requirement that “[a]t the
penalty phase, the jurors must ‘ “ ‘make an individualized
assessment of the character and history of the defendant to
determine the nature of the punishment to be imposed.’ ” ’ ”
(People v. Delgado (2017) 2 Cal.5th 544, 589; see CALCRIM No.
766 [Death Penalty: Weighing Process].) Counsel made clear

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that these hypothetical examples were not offered as reflecting
defendant’s own experience but were only mentioned to
illustrate her point about the role of mitigation in general and
the need for individual consideration of the evidence by each
juror. Counsel asked the questions to probe panelists’ attitudes
and to evaluate whether they were willing to consider types of
evidence upon which the defense might rely.
Indeed, the rule is that questioning of prospective jurors
“ ‘must not be so specific that it requires the prospective jurors
to prejudge the penalty issue based on a summary of the
mitigating and aggravating evidence likely to be presented.’ ”
(People v. Case (2018) 5 Cal.5th 1, 29.) Case cited People v. Cash
(2002) 28 Cal.4th 703, which observed that “either party is
entitled to ask prospective jurors questions that are specific
enough to determine if those jurors harbor bias, as to some fact
or circumstance shown by the trial evidence, that would cause
them not to follow an instruction directing them to determine a
penalty after considering aggravating and mitigating evidence.”
(Id. at pp. 720–721.) “As we explained in Cash, ‘death-
qualification voir dire must avoid two extremes. On the one
hand, it must not be so abstract that it fails to identify those
jurors whose death penalty views would prevent or
substantially impair the performance of their duties as jurors in
the case being tried. On the other hand, it must not be so specific
that it requires the prospective jurors to prejudge the penalty
issue based on a summary of the mitigating and aggravating
evidence likely to be presented. [Citation.] In deciding where to
strike the balance in a particular case, trial courts have
considerable discretion.” (Case, at p. 29.)
Voir dire is permitted to allow counsel to consider whether
a particular panelist will be fair and open to their presentation

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or resistant to it. The process is not designed to permit a specific
preview of the particular evidence to be presented or to slant the
panelist’s views in a particular direction. Counsel did not render
ineffective assistance by resorting to examples that obviously
would not be part of the defense case, in order to illustrate her
greater point. (See generally People v. Horton (1995) 11 Cal.4th
1068, 1124 [counsel’s statements during voir dire was not
prejudicially ineffective].)
b. Failure to pursue lingering doubt and related
claims
Defendant faults defense counsel for failing to pursue a
lingering doubt defense during the penalty retrial. He also
suggests that counsel should have pursued other “well
supported themes” as outlined in Petermann’s habeas petition
raising ineffective assistance claims regarding the first trial. He
urges counsel should have sought to bolster the claim that he
“had not participated or encouraged the charged assault,” or
“explain why he had not interceded or earlier fled,” and
emphasized that Hardy was the “dominating force in the
offenses.” He also asserts trial counsel should have challenged
his confession as either involuntary or unreliable.
These generalized assertions fail. Reasonable counsel
might well have determined that further pursuit of these
avenues would not only have been unsuccessful but would risk
being counterproductive. On this record, defendant cannot
demonstrate ineffective assistance on direct appeal. (See People
v. Lucero (2000) 23 Cal.4th 692, 735.) Defendant’s premise that
he “had not participated [in] or encouraged” the crimes here
were undermined by the significant evidence of his active
participation, including his own admissions. Defendant himself
ultimately made statements conceding that, when the victim

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

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he couldn’t come to an orgasm. He said that stake went in real
deep, six to seven inches. The sliver was found four inches
inside her vagina. He shoved that stake into the victim’s vagina
four to five times, that’s what he said, that’s what he said on
tape, that it was shoved in her four to five times.” (Emphasis
added.) Defendant argues there was no evidence he was the one
who used the stake as described. As a result, he asserts the
prosecutor argued facts not in the evidence and defense counsel
was ineffective for failing to object.
Initially, the record seems less straightforward than
defendant suggests. Just before the highlighted passage, the
prosecutor described how defendant had raped the victim
despite her pleas to stop. In addressing defendant’s police
statement that he had “perform[ed] sexual intercourse” with the
victim, the prosecutor argued: “Who was he performing for?
Jamelle [Armstrong] and Warren [Hardy]? He was performing,
performing that was the most brutal heinous type of rape a
woman could ever suffer. Just think about it. Imagine it. And
because she was resisting and he couldn’t come to an orgasm,
what do you think he did? He got mad. He got angry because
he couldn’t finish. Warren Hardy came up with that stake. I’ll
show her. I’ll get off. And he took that stake and he finished it
didn’t he? He started stomping on her with his boots and he
took that stake and he beat her in the face and how do we know
that? Because what does he say, he says that Warren Hardy sat
up on top of her and he could hear Warren saying ‘suck my dick’
and what does he tell Warren? He tells Warren ‘that’s
disgusting. You could get AIDS’ that’s how we know she was
beaten with the stake, stomped on, her face was all bloody and
what is he thinking about? . . . He was thinking that his buddy

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can get AIDS because her face is all bloody, that’s what he was
thinking about.” (Emphasis added.)
It appears in context that, while describing the actions of
all participants, the prosecutor confusingly used the pronoun
“he” to refer at times to both defendant and Hardy. 12 The jury
could have understood the prosecutor to urge that it was Hardy
who “came up with that stake” to “show her” and that defendant
admitted that Hardy beat the victim with the stake severely
enough that defendant was concerned Hardy could get AIDS
from the blood on her face. But that is certainly not the only
way in which the argument could have been understood.
Defendant is correct that, during his police interview,
which was played for the jury, he attributed use of the stake to
Hardy and Armstrong and stated that it was his cohorts who
had used the stake to beat the victim and sexually assault her.
There was no other evidence presented on that point. In the
context of ambiguous evidence, however, making an objection
during an opponent’s argument carries its own tactical risks,
including unintended emphasis of a point. “ ‘ “[T]he decision
facing counsel in the midst of trial over whether to object to
comments made by the prosecutor in closing argument is a
highly tactical one . . .” [citation], and “a mere failure to object
to evidence or argument seldom establishes counsel’s
incompetence.” ’ ” (People v. Aguirre (2025) 18 Cal.5th 629, 707.)
Even if the prosecutor’s argument could have been understood

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

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in the manner suggested by defendant, his counsel could well
have made the judgment that, by making an unsupported
assertion that defendant personally used the stake, the
prosecutor undermined her own credibility, and an objection
would only have given the prosecutor an opportunity to clarify
ambiguity and further focus the jury’s attention on that aspect
of the assault, of which the defendant was admittedly aware.
The prosecutor also reminded the jury of its duty to “determine
the facts from the evidence received during the trial,” and the
court properly instructed on this point, reminding the jury that
“[s]tatements made by the attorneys during trial are not
evidence.” (See CALJIC No. 0.50 [Pre-trial Admonition]; see
also CALJIC No. 8.84.1 [Duty of Jury — Penalty Proceeding].)
Ultimately, “ ‘[u]nless a defendant establishes the contrary, we
shall presume that “counsel’s performance fell within the wide
range of professional competence and that counsel’s actions and
inactions can be explained as a matter of sound trial
strategy.” ’ ” (People v. Centeno (2014) 60 Cal.4th 659, 674–675.)
d. Argument regarding defense witnesses’ changed
opinions
As noted, defendant’s three character witnesses
maintained that the details of defendant’s conduct did not
change their opinions of defendant and that they still loved him.
(See, ante, at pp. 24–27.) Defendant suggests his counsel
rendered ineffective assistance by failing to specifically tell the
jury during closing argument that any change of opinion by the
defense witnesses regarding defendant’s character should not be
considered an aggravating circumstance. Defense counsel did
urge that defendant’s witnesses had never seen that side of him
before or after the offenses, the offenses were completely
uncharacteristic, and that they still supported him. Bland did

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agree that the crimes were “pretty horrendous” and that he
might not invite defendant to dinner in the future. In light of
the witnesses’ unchanged opinions of defendant, defense counsel
could have rationally concluded an argument addressing any
moderate modification in their views would have confused the
jury and undermined a core theme of the defense that, but for
this “one horrible day,” defendant did not have a violent
character. The prosecution did not argue that any minor change
in the witness’ views constituted aggravation but only that their
testimony was not reliable. The jury was instructed as to the
proper consideration of aggravating and mitigating evidence.
(See CALJIC 8.88.) No ineffective assistance of counsel appears
on the appellate record in this regard. (Cf. People v. Gamache
(2010) 48 Cal.4th 347, 391–394.)
4. Cumulative Error
Defendant contends the cumulative effect of errors at the
penalty retrial requires reversal of the judgment. We have
found no errors. “Accordingly, there are no errors or prejudice
to accumulate, and defendant’s cumulative error claim
necessarily fails.” (Dunn, supra, 18 Cal.5th at p. 198.)
B. Supplemental Issues Relating to Prior Guilt
Phase Trial
In supplemental briefing, defendant seeks to reopen
challenges to verdicts in his guilt phase trial. His interrelated
arguments focus on a case decided, and a statutory change
made, after that adjudication and its affirmance on appeal
became final. He urges that the special circumstance findings
were inadequate, relying on People v. Banks (2015) 61 Cal.4th
788 (Banks). He also argues that the underlying guilt verdicts
themselves were rendered deficient because the Legislature

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later narrowed the scope of felony-murder liability with the
passage of Senate Bill No. 1437 (2017–2018 Reg. Sess.) (Senate
Bill 1437). The following timeline is relevant to his assertions.
In 1990, voters enacted Proposition 115 (Primary Elec.
(June 5, 1990) Prop. 115) (Prop. 115 or the Initiative), which
“revised the scope of capital liability for aiding and abetting
felony murders by looking to federal constitutional law.”
(Banks, supra, 61 Cal.4th at p. 798.) The Initiative addressed,
inter alia, the elements required for a true finding on special
circumstance felony murder. As amended by the Initiative,
section 190.2 requires proof that, during the commission of an
underlying felony, the defendant was: the actual killer; an aider
and abettor who acted with the intent to kill; or an aider and
abettor who was both a major participant and acted with
reckless indifference to human life. (See § 190.2, subds. (b)–(d).)
Penny Sigler was murdered in 1998. The first guilt and
penalty phase verdicts were returned in 2003. Those guilt
verdicts and special circumstances findings were affirmed on
appeal in 2012, but the penalty decision was reversed for jury
selection error.13 (See Pearson I, supra, 53 Cal.4th at pp. 327–

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

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333.) The matter was remanded for retrial as to penalty and
resentencing as required by the court’s other holdings related to
determinate sentencing issues. Defendant’s original habeas
corpus challenge to his first conviction was dismissed in 2017.
(See ante, p. 10, fn. 8.)
Following retrial, the second penalty verdict was returned
in 2013 and is the subject of this appeal. Banks, which
considered the scope of the “major participant” doctrine in the

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

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special circumstance context, was decided in 2015, two years
after the second penalty verdict was rendered.
In 2018, Senate Bill 1437 amended Penal Code section 189
and addressed the underlying elements required to prove
substantive guilt for first degree murder based on a felony-
murder theory, as distinguished from the proof required to
establish a special circumstance allegation. Under the Senate
Bill 1437 amendments, in the case of an aider and abettor who
is not the actual killer, the requirements for proof of the crime
of felony murder now mirror the special circumstance findings
that have been required by the Initiative since 1990. (See People
v. Strong (2022) 13 Cal.5th 698, 707–708; § 189, subd. (e).)
This timeline reflects that, when defendant was initially
tried in 2003, a guilt conviction for an accomplice based on a
felony-murder theory was permitted if the jury concluded the
defendant aided and abetted a listed predicate felony, but it did
not require proof that he was a major participant in that felony
and acted with reckless indifference. However, at the time of
his 2003 trial, a true finding on a felony-murder special-
circumstance allegation did require factual findings of major
participation and reckless indifference, and the jury was so
instructed.
1. Sufficiency of the Evidence: Felony-Murder Special
Circumstance
In the first of his supplemental arguments, defendant
proposes to challenge the affirmed special circumstance findings
in Pearson I that he engaged in, or acted as an accomplice in the
commission of, the crimes of robbery, rape, sexual penetration,
and kidnapping. He urges that he was not the actual killer of
Penny Sigler, did not act as a major participant in those crimes,

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

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

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

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The Banks court explained that Tison “described the range
of felony-murder participants as a spectrum.” (Banks, supra,
61 Cal.4th at p. 800.) At one end of that spectrum were minor
actors, who were not at the scene of the underlying crimes, and
“ ‘who neither intended to kill nor [were] found to have had any
culpable mental state.’ ” (Ibid.) At the other extreme were
actual killers and those who intended to kill. The high court
recognized a middle point on the spectrum for those who did not
fall into either of those “ ‘neat categories.’ ” (Ibid.) Those middle
ground cases included accomplices who were major participants
in the underlying felonies and who acted with reckless
indifference to human life. This formulation from Tison was
codified by the California electorate in section 190.2,
subdivision (d). The Banks court undertook to “gain a deeper
understanding of the governing test and offer further guidance”
as to the term “ ‘major participant.’ ” (Banks, at p. 801.)
Banks noted that it is constitutionally permissible for the
states to “ ‘make aiders and abettors equally responsible, as a
matter of law, with principals, or . . . enact felony-murder
statutes” providing that a nonkilling accomplice may be found
guilty of the underlying crime of first degree murder. (Banks,
supra, 61 Cal.4th at p. 801, citing Lockett v. Ohio (1978) 438 U.S.
586, 602.) Banks emphasized, however, that “[w]hen it comes
time to determine a proportionate punishment, the Constitution
requires more.” (Banks, at p. 801.) Since 1990, under section
190.2, subdivision (d), to support a felony-murder special-
circumstance finding for a nonkiller who is a major participant,
the jury must first conclude that a major participant acted with
reckless indifference to human life. (Banks, at pp. 801–802.)
When considering the truth of that special circumstance
allegation, the sentencing body must examine the defendant’s

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personal responsibility in the crimes and his individual
responsibility for the loss of life, not just his vicarious liability
for the underlying felony. (Ibid.) This individualized
consideration is required in determining first whether a special
circumstance allegation has been proven true and extends to a
consideration of the appropriate punishment. The need for this
additional level of inquiry is reflected in section 190.2,
subdivisions (c) and (d), which cover the application of a felony
murder special circumstance to nonkillers.
In order to receive a special circumstance sentence, a
defendant’s actions must be greater than those of “an ordinary
aider and abettor to an ordinary felony murder.” (Banks, supra,
61 Cal.4th at p. 802.) A jury evaluating that question must
consider the totality of the proven circumstances. (Ibid.) Banks
distinguished between a “garden-variety armed robbery, where
death might be possible but not probable,” and a defendant’s
substantial involvement in a “course of conduct that could be
found to entail a likelihood of death.” (Ibid.) The court rejected
the People’s position that mere participation in planning the
underlying felony was alone sufficient to make a defendant a
major participant. It held that such an expansive
understanding would sweep too broadly. (Id. at p. 803.)
In finding the Banks evidence insufficient, the court noted
that Matthews was not at the crime scene, did not see or hear
the shooting, had no immediate role in instigating it, and could
not have prevented it. There was no evidence that the armed
robbery plan included killing anyone. As a result, the evidence
showed Matthews was no more than a getaway driver. He was
absent from the scene when the shooting took place and
unaware of the unfolding events that led to the killing of the
guard. As a result, under existing United States Supreme Court

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precedent, as reflected in section 190.2, subdivision (d), he was
ineligible for a special-circumstance sentence. (See Banks,
supra, 61 Cal.4th at pp. 804–807.) Banks also restated the
established rule that a special-circumstance finding requires a
showing that the defendant was “ ‘ “subjectively aware that his
or her participation in the felony involved a grave risk of
death.” ’ ” (Id. at p. 807, italics omitted, quoting People v. Mil
(2012) 54 Cal.4th 400, 417 & People v. Estrada (1995) 11 Cal.4th
568, 577.) That is to say that under section 190.2,
subdivision (d), a special circumstance finding for a nonkiller
who does not intend to kill also requires proof that the defendant
was a major participant and acted with reckless indifference to
human life. Banks concluded insufficient evidence had been
presented that Matthews acted with this requisite mental state.
(Banks, at pp. 807–811.)
We later articulated in Clark various factors to consider in
determining whether a defendant acted with reckless
indifference to life. These considerations include whether the
defendant knew a weapon or weapons would be used, whether
he was present at the scene and had opportunities to intervene
or aid the victim, and whether he knew his companions were
likely to kill or use an enhanced degree of violence. They also
include the duration of the crime and any efforts defendant
made to minimize the risk of violence. (See Clark, supra, 63
Cal.4th at pp. 618–623; see also People v. Emanuel (2025) 17
Cal.5th 867, 885–896 (Emanuel).)
Initially, the Attorney General contends defendant may
not raise this challenge here because Pearson I affirmed the
guilt judgment of the first trial and only remanded for a penalty
phase retrial. Although he conceded a similar finality issue in
Wilson, he argues here that the guilt judgment was final and

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any claim regarding errors at the guilt phase of the first trial
exceeded the scope of our remand order and is not properly
before us in an appeal from the penalty retrial. (See Wilson,
supra, 14 Cal.5th at pp. 870–871; see also People v. Lopez (2025)
17 Cal.5th 388, 397–398.) We need not address this argument
as defendant’s claim fails on the merits.
Ultimately, consideration of the factors noted in Banks
and Clark does not aid defendant. Defendant’s participation in
the assaults, robbery, kidnapping, and murder of Sigler are
markedly different from that of Matthews, the absentee
getaway driver in Banks. There was ample proof that defendant
was a major participant in the designated felonies leading to
Sigler’s death and also that he acted with reckless indifference.
He was present, “aware of and willingly involved in the violent
manner in which the particular offense [was] committed,
demonstrating reckless indifference to the significant risk of
death his . . . actions create[d].” (Banks, supra, 61 Cal.4th at p.
801.) In particular, and by his own admission, he personally
knocked Sigler to the ground, stripped her, threw her over a
fence, and raped her. Consistent with the Pearson I disposition,
we assume he did not personally wield the stake, but he did
watch as his cohorts beat her then sexually assaulted her with
it and beat her so severely that one of her ears was nearly
severed. Far from making “some effort to minimize the risk of
violence” (Clark, supra, 63 Cal.4th at p. 622) or “attempt[ing] to
act as a restraining influence” (Emanuel, supra, 17 Cal.5th at
p. 891), defendant personally kicked the victim in the head
repeatedly with steel-toed boots, contributing to her fatal
traumatic head injuries. After the attack, he and his associates
stole her belongings and left her nude, unconscious, and with 25
broken bones, on an embankment in December in the middle of

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

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

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Bill 1437, which modified the substantive felony-murder
doctrine. Again, his arguments fail.
The original jury was told that first degree murder could
be based on proof of conventional premeditated murder.
Alternatively, it was instructed on the theories of felony murder,
conspiracy to commit a felony resulting in murder, and murder
liability based on the natural and probable consequences
doctrine. “Under the natural and probable consequences
doctrine, ‘ “A person who knowingly aids and abets criminal
conduct is guilty of not only the intended crime [target offense]
but also of any other crime the perpetrator actually commits
[nontarget offense] that is a natural and probable consequence
of the intended crime.” ’ ” (People v. Hin (2025) 17 Cal.5th 401,
441 (Hin).) The natural and probable consequences doctrine had
provided that one who aids and abets a designated felony must
have the specific intent to aid in the commission of that target
offense but was not required to harbor any additional express or
implied malice if the commission of the felony resulted in an
unlawful killing. (Ibid.) Instead, the mens rea of malice was
“imputed” to the aider and abettor for any killing that was a
natural and probable consequence of the designated target
felony he aided and abetted or conspired to commit. (Ibid.)
“In 2018, the Legislature enacted Senate Bill 1437, which
eliminated the natural and probable consequences theory of
murder. (Stats. 2018, ch. 1015, § 1, subd. (f).) Senate Bill 1437
amended Penal Code section 188 to provide that ‘[e]xcept as
stated in subdivision (e) of Section 189 [governing felony
murder], in order to be convicted of [the crime of] murder, a
principal in a crime shall act with malice aforethought. Malice
shall not be imputed to a person based solely on his or her
participation in a crime.’ (§ 188, subd. (a)(3), added by

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PEOPLE v. PEARSON
Opinion of the Court by Corrigan, J.

Stats. 2018, ch. 1015, § 2.) Senate Bill 1437 also narrowed the
scope of the felony-murder [rule by] . . . providing that a
defendant who was neither the actual killer nor acted with the
intent to kill can be liable for murder only if he was a ‘major
participant in the underlying felony and acted with reckless
indifference to human life.’ (§ 189, subd. (e)(3), added by Stats.
2018, ch. 1015, § 3.)” (Hin, supra, 17 Cal.5th at p. 441.) “Senate
Bill 1437 also created a procedural mechanism for those
convicted of murder under prior law to seek retroactive relief,”
allowing a defendant to petition for resentencing under the new
law. (Wilson, supra, 14 Cal.5th at p. 869; see § 1172.6.) The
Legislature later clarified that a defendant “whose conviction is
not final may challenge on direct appeal the validity of that
conviction based on the changes made to Sections 188 and 189
by Senate Bill 1437.” (§ 1172.6, subd. (g); see Wilson, at p. 869.)
If Senate Bill 1437 were applied retroactively to
defendant’s 2003 trial, it would mean the natural and probable
consequences instructions were improperly given, raising the
possibility of “alternative-theory error.” (People v. Aledamat
(2019) 8 Cal.5th 1, 9 (Aledamat); see Wilson, supra, 14 Cal.5th
at p. 871.) The People initially argue defendant’s instructional
error claim is not cognizable on this appeal because the guilt
phase judgment became final after our decision in Pearson I
reversed only the death judgment and remanded for a penalty
retrial. Again, we need not address this claim because any
possible instructional error could not have prejudiced
defendant.
Alternative-theory error occurs when a court instructs on
different theories under which a defendant may be convicted of
an offense, but some of those theories are legally invalid. (See
Wilson, supra, 14 Cal.5th at p. 871.) “[N]o higher standard of

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PEOPLE v. PEARSON
Opinion of the Court by Corrigan, J.

review applies to alternative-theory error than applies to other
misdescriptions of the elements. The same beyond a reasonable
doubt standard applies to all such misdescriptions, including
alternative-theory error.” (Aledamat, supra, 8 Cal.5th at p. 9.)
“[A] reviewing court may hold the error harmless where it would
be impossible, based on the evidence, for a jury to make the
findings reflected in its verdict without also making the findings
that would support a valid theory of liability.” (In re Lopez
(2023) 14 Cal.5th 562, 568.) “[T]he reviewing court has an
obligation ‘to rigorously review the evidence to determine
whether any rational juror who found the defendant guilty
based on an invalid theory, and made the factual findings
reflected in the jury’s verdict, would necessarily have found the
defendant guilty based on a valid theory as well.’ ” (Wilson, at
p. 873, quoting In re Lopez, at p. 583.)
“Applying this standard, we conclude no reasonable jury
that made the findings reflected in the verdicts from defendant’s
initial trial could have failed to find the facts necessary to
support liability under a valid theory of murder.” (Wilson,
supra, 14 Cal.5th at p. 873.) “As amended by Senate Bill 1437,
a defendant is guilty of first degree felony murder if he is the
‘actual killer’ (§ 189, subd. (e)(1)); if, ‘with the intent to kill,’ he
aids or abets ‘the actual killer in the commission of murder in
the first degree’ (id., subd. (e)(2)); or, if he was a ‘major
participant in the underlying felony’ and ‘acted with reckless
indifference to human life’ (id., subd. (e)(3)).” (Id. at p. 873.) As
the People observe, the jury’s verdict form convicting defendant
of murder expressly stated it found he was an “aider and abettor
and had the intent to kill; or was a major participant and acted
with reckless indifference to human life.” The jury also found
true special-circumstance allegations that defendant committed

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PEOPLE v. PEARSON
Opinion of the Court by Corrigan, J.

murder during robbery, kidnapping, kidnapping for rape, rape,
and rape by a foreign object.16 To find those allegations true,
the jury had to conclude, if defendant was not the actual killer,
that he either aided and abetted murder with intent to kill, or
was a major participant in one of the underlying crimes and
acted with reckless indifference to life. This jury also returned
a true finding on the One Strike circumstance appended to the
sexual assault counts that “defendant kidnapped the victim of
the present offense and the movement of the victim
substantially increased the risk of harm to the victim over and
above that level of risk necessarily inherent” in the underlying
offenses. (§ 667.61, subd. (d)(2).)
Further, as noted in Pearson I, although the court
instructed the jury on the natural and probable consequences
doctrine, “torture was not among the charged offenses listed in
this instruction.” (Pearson I, supra, 53 Cal.4th at pp. 320–321.)
Similarly, the instruction regarding the One Strike allegation
appended to the sex offenses required the jury find defendant
“inflicted torture on the victim as defined elsewhere in these
instructions.” As a result, “[t]he combination of instructions on
torture and aiding and abetting thus ensured defendant could
not be found guilty of torture as an aider and abettor without
proof he knew and shared the actual torturer’s specific intent to
inflict extreme pain and suffering on the victim.” (Id. at p. 321.)
Under these circumstances, “it would have been
impossible for the jury to make the findings reflected in its

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

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PEOPLE v. PEARSON
Opinion of the Court by Corrigan, J.

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

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

56
See next page for addresses and telephone numbers for counsel who
argued in Supreme Court.

Name of Opinion People v. Pearson
__________________________________________________________

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

__________________________________________________________

Opinion No. S212159
Date Filed: August 17, 2026
__________________________________________________________

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

Counsel:

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

Kamala D. Harris and Rob Bonta, Attorneys General, Gerald A.
Engler, Lance E. Winters and Charles C. Ragland, Chief Assistant
Attorneys General, James William Bilderback II, Assistant Attorney
General, Dana Muhammad Ali, Joseph P. Lee, Yun K. Lee,
Christopher G. Sanchez and Jonathan L. Kline, Deputy Attorneys
General, for Plaintiff and Respondent.
Counsel who argued in Supreme Court (not intended for
publication with opinion):

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

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