Trial court’s ruling requiring defendant’s husband and sister to attend her trial via livestreaming on the Internet during the COVID-19 pandemic did not violate her right to a public trial. During the COVID-19 pandemic, Zemek was convicted of first degree murder, elder abuse, and theft offenses. She raised a number of issues on appeal, including that she was denied her right to a public trial. The trial court had closed the physical courtroom to the public based on COVID-19 emergency orders and protocols, but the trial was livestreamed on the Internet. The court denied defense counsel’s multiple requests for Zemek’s husband and sister to be allowed to attend the trial in person in the courtroom. Held: Affirmed. By restricting public access to the courtroom, the trial court had a compelling interest in protecting the health and safety of the litigants, trial participants, and court employees and limiting the spread of COVID-19. The exclusion of the public was narrowly tailored and not broader than necessary to protect public health, even though Zemek’s family members were also excluded. Making the trial available to the public via livestream further assured the integrity of the judicial process. Although there were technical difficulties with the livestream, the trial court took diligent steps to address the issues. [Editor’s Notes: (1) Justice Dato dissented and would have reversed on this point. “[T]he record reflects that Zemek’s two family members could have been accommodated, consistent with existing COVID-19 protocols, without undue risk to the trial participants.” (2) The court noted that the U.S. Supreme Court and the California Supreme Court have not addressed whether the Sixth Amendment should be read to provide greater rights to observe a trial to a defendant’s close family members than what is provided to the public and declined to decide the issue. (3) The court also concluded trial counsel was not constitutionally ineffective for failing to sufficiently address the livestream technical difficulties.]

Substantial evidence supports defendant’s conviction for first degree premeditated murder based on a failure to act theory where defendant owed a duty of care to the victim and deliberately left her alone intending that she overdose on medication. Zemek befriended the victim, Pam, and became her paid caregiver. One of Zemek’s tasks was to make sure Pam was properly taking her medication because the combination of drugs she was taking could cause mental confusion and an overdose could be deadly (Pam had already overdosed twice). After Pam overdosed once again and was severely impaired in making decisions, Zemek helped her create a new estate plan making Zemek her sole beneficiary. Shortly after this, Zemek left Pam alone for days with hundreds of pills. Pam died during this time from an apparent drug overdose. At trial, the prosecution’s murder theory was that Zemek violated her legal duty to care for Pam by deliberately leaving Pam alone for several days, intending that she self-administer a fatal overdose of her prescription drug. On appeal, Zemek argued that substantial evidence did not support her first degree murder conviction based on the jury instructions that were given in the case. The Court of Appeal disagreed. The jury here was instructed that murder may be based on the failure to act where the defendant has a legal duty to act. But the first degree murder instruction, CALCRIM No. 521, was not modified to include similar “failure to act” language. Reading the instructions as a whole in the context of the case and the closing arguments, the Court of Appeal concluded the jury could convict Zemek of first degree murder only on a failure to act theory and there was substantial evidence to support the conviction based on this theory. The court disagreed with Zemek’s argument that, as a matter of law, first degree premeditated murder cannot be based solely on a failure to act (the argument was also foreclosed by the law of the case doctrine based on prior writ proceedings in this case).

The court also concluded:

• The trial court did not prejudicially err when it declined to give defendant’s requested pinpoint instruction on causation for murder. The instructions that were given accurately explained causation and the proposed pinpoint was duplicative, argumentative, and confusing.
• The trial court did not err by failing to hold a hearing after a juror was overheard commenting on the defense’s lengthy closing argument. The comment was an expression of frustration and did not rise to the level of good cause to excuse him. Justice Dato dissented on this point, finding that the misconduct in this case was serious and a hearing should have been held. The dissent would have reversed based on this.
• The trial court did not prejudicially err by allowing the prosecution to introduce evidence of two uncharged prior thefts to prove intent or common plan or scheme. The two prior thefts were sufficiently similar to the charged theft offenses: Zemek met all three victims through quasi-medical procedures and used her role as a caregiver to steal from each victim.