93 Cal.App.5th 313
Cal. Ct. App.2023Background
- Victim (Pam), elderly and on phenobarbital + benzodiazepine, had multiple recent overdoses and was cognitively impaired; Zemek became her paid caregiver, obtained a durable power of attorney and a will naming Zemek sole beneficiary, then removed Pam from a skilled facility.
- Pam was found dead at home from a phenobarbital overdose between June 13–17, 2016; pathologist could not rule out accident, suicide, or homicide.
- Zemek immediately accessed Pam’s accounts, stole over $200,000 and impersonated Pam on bank calls; two prior theft incidents from quasi-caregiving contexts were admitted at trial.
- A jury convicted Zemek of first‑degree murder (failure-to-act theory), elder abuse causing death, two counts of grand theft, identity theft and perjury; sentence: 25 years-to-life plus determinate terms totaling five years (with one count stayed).
- On appeal Zemek raised (1) public‑trial violation (courtroom closed during COVID‑19; livestream provided), (2) juror misconduct (juror comment during closing), (3) insufficiency of evidence for premeditated murder, (4) denial of a pinpoint causation instruction, and (5) admission of prior‑theft evidence.
Issues
| Issue | Plaintiff's Argument (People) | Defendant's Argument (Zemek) | Held |
|---|---|---|---|
| Right to public trial — courtroom closed during pandemic; livestream used | Closure justified by compelling public‑health interest; livestream provided adequate public access | Closing was not narrowly tailored; denial to let two close family members sit in courtroom violated right (and livestream intermittently failed) | Affirmed — closure narrowly tailored given 2020 COVID emergency; livestream was an adequate alternative and technical outages did not require reversal |
| Alleged juror misconduct — juror said “This trial’s never going to end. That’s his strategy.” | Statement was harmless frustration, not evidence juror prejudged case; court’s admonition sufficed | Statement showed juror had predecided guilt; court should have questioned/excused juror or held a hearing | Affirmed — no demonstrable reality juror was incapable; court permissibly admonished jurors; no abuse of discretion |
| Sufficiency of evidence for first‑degree (premeditation) when theory is omission | Prosecutor: evidence supported deliberate omission to cause death (left vulnerable victim with known overdose history) and showed premeditation/motive (inheritance) | Zemek: CALCRIM 521 refers to acts; no affirmative act shown so no substantial evidence of premeditated murder | Affirmed — jury could convict on omission theory; instructions considered as a whole; substantial evidence of willful, deliberate omission to cause death |
| Denial of defendant’s requested pinpoint causation instruction (independent intervening cause/suicide) | Given CALCRIM instructions adequately explained causation and substantial‑factor test; pinpoint was duplicative and argumentative | Requested instruction was factually warranted to focus jury on suicide/accidental overdose as superseding cause | Affirmed — refusal proper (duplicative, argumentative); any error was harmless under Watson because given instructions + counsel’s argument covered the theory and intervening cause was not reasonably unforeseeable |
| Admission of prior thefts under Evid. Code §1101(b) | Prior incidents showed similar modus operandi, intent to defraud and common plan; probative value not substantially outweighed by prejudice | Prior acts were dissimilar and unduly prejudicial; should have been excluded under §352 | Affirmed — prior thefts sufficiently similar (caregiver context, thefts from vulnerable women), admissible for intent/common plan; trial court did not abuse discretion under §352 |
Key Cases Cited
- Waller v. Georgia, 467 U.S. 39 (courtroom‑closure test; closure must be narrowly tailored to overriding interest)
- In re Oliver, 333 U.S. 257 (public‑trial principle; accused entitled to have friends/relatives present)
- People v. Woodward, 4 Cal.4th 376 (California on public‑trial right)
- United States v. Allen, 34 F.4th 789 (9th Cir.) (audio‑only/public‑access limitations and closure analysis)
- People v. Allen & Johnson, 53 Cal.4th 60 (trial court must hold hearing when information, if true, would constitute good cause to doubt juror’s ability)
- People v. Ewoldt, 7 Cal.4th 380 (use of uncharged misconduct to infer intent/common plan)
- People v. Chhoun, 11 Cal.5th 1 (probative value vs. propensity; §1101(b) applications)
- Strickland v. Washington, 466 U.S. 668 (ineffective assistance—defendant must show deficient performance and prejudice)
- People v. Weatherton, 59 Cal.4th 589 (juror misconduct and presumption of prejudice analysis)