Orange County Super. Ct. No. 95ZF007. Judge: Kathleen E. O'Leary.
The opinion of the court was delivered by: Moreno, J.
A jury convicted defendant Eric Wayne Bennett of the first degree murder (Pen. Code, § 187, subd. (a))*fn1 of Marie Powell Evans and found two special circumstances to be true - that the murder was committed while engaged in the commission of rape (§ 190.2, subd. (a)(17)(iii)) and burglary (id., subd. (a)(17)(vii)). The jury also convicted defendant of several crimes related to his assault of Pamela B., including forcible oral copulation (§ 288a, subd. (c)), rape (§ 261, subd. (a)(2)), first degree robbery within an inhabited dwelling (§§ 211, 212.5, subd. (a), 213, subd. (a)(1)), and first degree burglary of an inhabited dwelling (§§ 459, 460, subd. (a), 461.1). The jury found that defendant personally used a knife when he committed the crimes against Pamela B. (§ 12022, subd. (b).) The jury returned a death verdict. The trial court sentenced defendant to death on the murder count and imposed and stayed a determinate term of 15 years four months for the crimes against Pamela B. This appeal is automatic. (Cal. Const., art. VI, § 11, subd. (a); § 1239, subd. (b).) We affirm the judgment. I. FACTUAL BACKGROUND
a. Crimes Committed Against Pamela B.
In mid-September 1994, defendant installed flooring at the Costa Mesa home of Mary Beth Baughman. Shortly thereafter, defendant signed a rental contract for an adjoining unit and he, his wife, and two children moved in. Pamela B. lived alone in a small apartment directly behind Baughman's unit with a driveway separating her unit from defendant's.
On September 27, about 10:00 p.m., Pamela B. was home alone watching television in her bedroom. As it was a warm evening, Pamela B. had her front door, which opened into her bedroom, open with the screen door closed and latched. Pamela B. saw defendant standing outside on her front porch.*fn2 She watched him bend over, take his shirt off and wrap it around his head and face "ninja style" so that only his eyes were uncovered. Defendant then charged through the door with a four-inch knife in his hand. Wearing only a pair of black shorts, defendant charged at Pamela B. and pinned her down on top of the bed. Holding the knife to Pamela B.'s neck, defendant told her that he would not hurt her and that he only wanted her money. Pamela B. screamed.
Baughman was inside her living room and heard the scream. She walked out onto her patio and yelled across the fence, "Pam, are you all right?" Baughman thought she heard a response, but could not understand what Pamela B. had said so she called out again. Defendant still had a knife to Pamela B.'s neck and said, "Shit. Tell her you're okay." Pamela B. did so and Baughman did not come any nearer.
Defendant again told Pamela B. that he wanted her money. Afraid defendant would harm her if she did not comply, she told him where her purse was. Defendant stayed within a foot of Pamela B. while she retrieved her purse and got her money out of it. After defendant took her money, he got upset and asked for the "rest of it." Pamela B. told him that was all she had and defendant rolled the money up and put it in his shorts. The shirt began to fall from defendant's face and, as he tightened it back up, defendant warned Pamela B. not to look at his face. "If you look at my face, I've got to hurt you."
Defendant told Pamela B. he was not done and directed her to get face-down on the bed. Defendant got behind her, put his left arm under her abdomen and pulled her up on her hands and knees. Defendant rubbed her breasts and hips and rubbed his penis against her body. Defendant had a partial erection that he lost when he heard a car drove by. Defendant became angry and said, "Now, you got to suck it." Although terrified, Pamela B. refused. Defendant told her he would not hurt her, pushed her head onto his penis, and then insulted her about the manner in which she was orally copulating him. After defendant obtained an erection, he pulled Pamela B. to her hands and knees, got behind her, threw her nightgown over her head, and put his penis into her vagina.
After defendant ejaculated, Pamela B. ran out the front door. She ran outside her gate and turned left, near her car. Defendant gave chase and cornered Pamela B. by her car. He lunged at her, causing her to scream, at which point defendant ran away. Pamela B. lost sight of defendant.
Pamela B. ran to Baughman's unit and banged on her back door. After Baughman opened the door, Pamela B. entered and called 911. City of Costa Mesa Police Officer Mitchell Johnson responded within minutes. Officer Johnson did not see any cars leave the area and felt that the suspect must still be nearby. He quickly searched the area and set up a perimeter within a block of the location. When Officer Johnson met with Pamela B., she was "borderline hysterical" and crying. After calming her down, Officer Johnson was able to obtain a statement after which he took Pamela B. to the hospital for a sexual assault examination.
While Officer Johnson was obtaining a statement from Pamela B. at the apartment, Baughman was outside and saw defendant. Defendant asked what the police activity was about. Defendant said he had been sleeping on the sofa with his baby and the lights woke him up. Baughman told defendant she would rather not say. Defendant was insistent and, after he inquired several more times, Baughman told defendant Pamela B. had been raped. Defendant said that was terrible and left.
A sexual assault examination showed Pamela B. had suffered an abrasion near her vaginal opening and that there was sperm present in the secretions from her vagina. DNA was extracted from the semen.
After the rape, Pamela B. was in physical pain, could not move her right thumb for a week, and had a large bruise on the side of her thigh. She never slept at her apartment again and moved out at the end of October.
On September 27, 1994, the same day defendant assaulted Pamela B., he installed flooring at Marie Powell Evans's new townhouse in Laguna Hills.
On October 13, Evans went to the home of her daughter and son-in-law, Christine and John Hougan, to bring her son-in-law a birthday present. Evans had a dark leather purse with her. Evans left their home at around 8:30 p.m. Around 11:00 a.m. the next morning, Christine received a phone call from Evans's boss, who told her that her mother had not shown up for work that morning, which was highly unusual. The Hougans worked for the City of Newport Beach Police Department, Christine as a police dispatcher and John as a police officer. Christine called someone from work and requested her mother's license plate be run to see if there had been a reported traffic accident. Upon discovering that there was no report of an accident involving Christine's mother, the Hougans went to Evans's house.
They entered Evans's patio area and saw that the window screen was off the kitchen window. John Hougan noticed that dust on the windowsill had been disturbed and a plant had been knocked over into the sink leading him to think someone had crawled in through the window. Upon closer inspection, he observed a large amount of blood and a pillowcase on the kitchen floor. He took his wife back to the car and had her wait while he retrieved his gun and returned to the house. John entered the house through the front door, which was closed, but unlocked. There was a bloody bare footprint on the entryway throw rug that was facing downward toward the stairs. John then went downstairs and, when halfway down, saw Evans's semi-naked body on the floor of the bathroom. After checking the other bedrooms to see if anyone was in the house, he phoned 911.
A rear sliding glass door leading into the master bedroom was found open with the screen door closed; the screen had a cut from top to bottom, leaving an opening large enough for a person to walk through. There was blood on the bed in the master bedroom and signs of a struggle, including a porcelain clock that had been knocked over. In the bathroom next to the master bedroom, Evans was lying on her back with her robe pulled up over her chest. There was blood on the bathroom door, floor, and wall. There was a bloody footprint next to the body and a wet towel, a television, and a pillow on top of Evans's head. The television's cord was plugged into a socket in the master bedroom and the television was still on.
There was a bloody footprint in the kitchen and another at the top of the stairs facing downwards, along with some potting soil. In the living room, there were shelves holding several glass decanters. On one of the shelves, there was a ring-shaped impression in the dust as if something had been taken. On the kitchen counter there was a notepad with the name Eric (the same as defendant's first name) and a phone number, later determined to be defendant's, written on it. Missing from the house were Evans's purse and a glass decanter.
An autopsy showed Evans had suffered multiple major injuries. The autopsy determined she died as a result of bruising to her brain due to blunt force trauma. There were pattern marks on her face between the left eye and ear consistent with a blow from a heavy, patterned object. There were multiple skull fractures and tears in Evans's scalp. Her hands had skin breakage, lacerations, swelling and discoloration, which may have been from an attempt to ward off a blow. There were also marks in Evans's vaginal area that could have been injuries.
A sexual assault examination recovered sperm from Evans's anal, perianal, and perivaginal areas as well as her vagina. Sperm was also found on the bed sheets in the master bedroom. DNA was extracted from the sperm.
Defendant did not return to his job after October 14. On October 18, aware that he had installed carpet in Evans's home, the police obtained defendant's fingerprints in an effort to exclude him as a suspect in the murder. Shortly afterwards, defendant and his wife moved out of his apartment without notifying his landlord that he would be moving.
For reasons not explained to the jury at the guilt phase, defendant was arrested on an unrelated charge by the San Diego County Sheriff's Department. While in custody, defendant's blood was drawn by a nurse and his DNA was compared to DNA recovered from the two crime scenes and found to match. The probability of a random match with semen and blood recovered from Pamela B. and her home was 1 in 1.2 billion within the general population. The probability of a random match with semen recovered from Evans's body was 1 in 17 million within the general population. The probability of a random match with semen recovered from Evans's bed sheets was 1 in 7 million within the general population.
Defendant was arrested on October 31. The prosecutor presented the case to a grand jury, which returned an indictment on January 11, 1995.
At a live lineup two and a half months after the attack, Pamela B. was unable to pick defendant as the person who assaulted her. She instead picked another man out of the lineup as the person most resembling her attacker. Nor could she make an in-court identification of defendant as the man who assaulted her. She described her attacker to the police as having a dark complexion, possibly black, with dark brown eyes while defendant had blond-to-brown hair and blue eyes. Defendant presented evidence that none of the fingerprints that were taken at Evans's house matched his. Defendant also challenged the reliability of the DNA evidence and the probability estimates given by the prosecutor's DNA experts.
The prosecution's case in aggravation consisted of two witnesses: Alice Ware, Evans's 82-year-old mother, and Christine Hougan. They described the impact Evans's death had on them. Additionally, Hougan testified about the impact it had on her to be present when her mother's body was found and Ware testified about finding out about Evans's murder over the phone from Hougan.
The defense presented testimony about defendant's childhood. He was raised as a Jehovah's Witness, although he stopped attending church on a regular basis when he was a teenager and began using drugs. There was testimony of a family history of alcohol and drug abuse. Defendant himself had a significant problem with alcohol and drugs throughout his life. He was diagnosed in grade school as dyslexic. Defendant ultimately dropped out prior to completing high school.
Defendant's cousin testified that, when she was 11 or 12 years old and defendant was four or five years old, she was taking care of him and gave him a bath. She dried him off and then tried, unsuccessfully, to have sexual intercourse with him. After this incident, defendant engaged in other instances of inappropriate, precocious sexual behavior.
Defendant married Karen Bennett, his second marriage, in December 1991. They had a child together and she had a child from a previous relationship that defendant treated as his own. She testified that she still loved defendant and did not want to seem him executed. She also testified that defendant was a good father to their two boys and she wanted him to continue his relationship with the children. Karen Bennett also testified that their marriage had been rocky at times due, among other things, to defendant's drug use. She testified that she demanded or asked defendant to commit to stopping his drug use.
Dr. Nancy Kaser-Boyd, a clinical psychologist, testified defendant had expressed guilt about his crimes and the effect his crimes had on his family and the family of the victims. She also testified that defendant exhibited risk factors for acting out sexually. Among the factors were his sexual molestation at the hands of his cousin; defendant's drug use; his dyslexia and attention deficit hyperactive disorder; and his dysfunctional family. Dr. Kaser-Boyd also testified extensively about the relationship between defendant and his stepson, opining that the child was attached to defendant and identified defendant as his father.
Defendant conceded that he had raped Pamela B. and killed Evans and presented evidence of his remorse. While he was in custody after his October 31 arrest, he returned to the Jehovah's Witness faith. Within weeks of his arrest, he confessed to his wife that he had killed Evans and raped Pamela B. and told her he wanted to plead guilty to spare those involved the pain of a trial. He cried and said he was sorry to her, their children, his parents, and the family of the victims. Defendant subsequently told his mother the same thing. He also expressed a desire to plead guilty to his attorneys but they, together with his family, sought to convince him to proceed to trial. Defendant's wife and her grandmother contacted James Waltz, an attorney and a Jehovah's Witness, and asked him to talk to defendant about whether to plead guilty. Defendant told Waltz that he wanted to plead guilty, but Waltz told defendant to cooperate with his attorneys. Rick Wentworth, an elder in the Jehovah's Witness church, testified that he had visited defendant in jail numerous times and that they had engaged in Bible study and talked about family. Jenk Janes, a Jehovah's Witness and recovering addict, testified he took defendant to an Alcoholics Anonymous meeting in August or September 1994. Janes testified that defendant sincerely desired to change his lifestyle and overcome his addiction to drugs.
A. Pretrial and Guilt Phase Issues
1. Failure to Record Portions of Grand Jury Proceedings
The district attorney sought an indictment from the grand jury. Defendant contends critical portions of the grand jury proceedings were not recorded, thereby violating state law and the Eighth and Fourteenth Amendments to the United States Constitution. Specifically, defendant argues reversal is required because of the failure to record the superior court's interview of prospective grand jurors and an alleged meeting between the prosecutor and the grand jury. We disagree.
At the time of defendant's trial, section 190.9 required that, "[i]n any case in which a death sentence may be imposed, all proceedings conducted in the . . . superior courts . . . shall be conducted on the record with a court reporter present." (Stats 1993, ch. 1016, § 3, p. 5739.) Defendant cites Dustin v. Superior Court (2002) 99 Cal.App.4th 1311, 1321-1323 for the proposition that section 190.9 applies as well to grand jury proceedings in capital cases.
While the federal Constitution does not require that all proceedings be transcribed, it does require that there be a record adequate to permit meaningful appellate review. (People v. Howard (1992) 1 Cal.4th 1132, 1165-1166.) A record is inadequate "only if the complained-of deficiency is prejudicial to the defendant's ability to prosecute his appeal." (People v. Alvarez (1996) 14 Cal.4th 155, 196, fn. 8.) It is defendant's burden to show that any deficiencies are prejudicial. (People v. Young (2005) 34 Cal.4th 1149, 1170.) Inconsequential inaccuracies or omissions are insufficient to constitute prejudice. (Ibid.) Nor will mere speculation suffice. (Ibid.)
a. Interviews of Prospective Grand Jurors
On May 18, 1994, the Orange County Superior Court selected 19 individuals from a roster of 29 nominees to comprise the 1994-1995 grand jury (§ 895). Section 896 requires that the superior court personally interview each prospective grand juror to ascertain whether they possess the qualifications required by section 893.*fn4 As part of the appellate record completion process, defendant sought to augment the record with transcripts of the superior court's interview and selection of the grand jury. Neither the interviews nor the selection process were recorded.*fn5 Defendant argues this constitutes reversible error. We disagree.
Section 190.9 requires that all proceedings be reported in a "case in which a death sentence may be imposed." The Court of Appeal concluded in Dustin that section 190.9 applies to grand jury proceedings in death penalty cases where indictments are returned. (Dustin v. Superior Court, supra, 99 Cal.App.4th at p. 1322.) That case is unlike this one. There, the Court of Appeal considered a defendant's pretrial claim that the prosecutor violated section 190.9 by ordering the court reporter to leave while he gave his opening and closing statements to the grand jury. (99 Cal.App.4th at pp. 1314-1315.) Even assuming Dustin was correctly decided, section 190.9 cannot reasonably be interpreted to apply before a "case" even exists. Defendant did not commit his crimes until September 1994, he was not arrested until October 1994, and the case was not presented to the grand jury until January 1995. The "case" could not have been said to exist in May 1994 when the 1994-1995 grand jury was interviewed, selected, and impaneled. Section 190.9 does not impose a duty to record the personal interviews of prospective grand jurors. Nor is there a constitutional violation, as defendant has failed to establish that the absence of the sought record prejudices his ability to prosecute his appeal. (People v. Alvarez, supra, 14 Cal.4th at p. 196, fn. 8.)
b. Alleged Meeting Between Prosecutor and Grand Jury
On Thursday, January 5, 1995, Deputy District Attorney Carolyn Kirkwood presented the state's case to the grand jury. The next morning, Friday, January 6, Kirkwood gave her closing argument and answered the grand jury's questions. The foreperson then excused Kirkwood and the court reporter so the jury could begin deliberating. Later that afternoon, Kirkwood and District Attorney Guy Ormes returned to address several written questions the jury had submitted. Afterwards, the grand jury resumed deliberations, but recessed for the day without returning an indictment.
On Wednesday, January 11, Ormes and Kirkwood returned to address more questions submitted by the grand jury. Ormes noted the jury had recessed Friday without returning an indictment and, "Since that time you presented me with a - actually several questions . . . ." Ormes indicated the People were prepared to address the questions by calling additional witnesses. Ormes and Kirkwood first addressed several questions themselves. When addressing one of the questions, Kirkwood remarked, "We received a note from the grand jury on [Monday,] January 9, 1995 . . . ." The People then examined several witnesses, after which Kirkwood made concluding remarks and the jury resumed its deliberations. Later that afternoon, it returned an indictment against defendant.
Defendant moved to dismiss the indictment. He argued that the grand jury indicted him only after the prosecution presented additional, allegedly inadmissible, evidence on January 11. At a hearing on the motion, counsel for both sides discussed whether the jury "refused" to return an indictment on January 6, whether it deliberated on January 9 and 10, and how it transmitted its questions to the prosecution. Defendant asked to examine Ormes and the foreperson about whether the jury deliberated on January 9 and 10, whether it had taken a vote prior to January 11, and whether there were any unreported discussions between it and the prosecutors. The court denied the request, but ordered the prosecutor to produce the jury's written questions for in camera review.
The court reviewed the written notes in chambers with only the prosecutors present. One note, written by the foreperson, was dated January 9 and contained questions about the People's DNA evidence, whether there was any non-DNA evidence implicating defendant, and about exculpatory evidence. Another note, also written by the foreperson, was dated January 10 and began, "These 4 points are what I told the panel I had discussed with you." The note then listed points regarding the DNA evidence, the existence of corroborative evidence, and exculpatory evidence. The note concluded by informing the prosecutor that the grand jury would be convening at 8:45 a.m. on January 11.
As part of the appellate record completion process, defendant sought to augment the record with an explanation of the procedure followed for transmitting the grand jury's questions to the district attorney, any record of when grand jury proceedings took place, and transcripts of any communications between the grand jury and any prosecutor other than remarks contained in existing transcripts. At a hearing, the superior court appellate clerk explained that there were no other transcripts to produce. She indicated that the district attorney had told her the jury had been deliberating on January 9 and 10, so there was no transcript for those days. The jury wrote questions down on those days, transmitted the questions to the district attorney, and the questions were answered on January 11. The People indicated there was no set procedure for communicating questions from the grand jury to the district attorney and it could therefore not say how it was done in this case.
Defendant contends the record suggests the prosecutor had a number of unreported communications with the grand jury in violation of section 190.9 and Dustin v. Superior Court. He first relies on the January 9 and January 10 written questions, which he claims suggest unreported communications took place because the grand jury had to give the written questions to the prosecutor. He also places great weight on the prosecutors' readiness to answer the questions on January 11 with live testimony, arguing this demonstrates the existence of unreported communications. We conclude that neither establishes an unreported communication took place. It is just as likely that the grand jury transmitted its notes to the district attorney in an innocuous manner without direct communication, putting the district attorney on notice that it needed to present more evidence to answer the jury's questions. Moreover, even assuming unreported communications took place, defendant has failed to identify anything other than mere speculation to support his contention that he has suffered prejudice, i.e., that the grand jury's decision to indict may have been in some way influenced by the alleged unreported communications. (People v. Young, supra, 34 Cal.4th at p. 1170.) A defendant seeking post-conviction reversal for irregularities in grand jury proceedings must establish that the complained-of errors were structural or resulted in actual prejudice relating to his conviction. (People v. Jablonski (2006) 37 Cal.4th 774, 800.) Defendant does not establish the existence of an irregularity justifying post-conviction reversal.
Defendant also points to the opening sentence of the January 10 note. In it, the foreperson wrote "These 4 points are what I told the panel I had discussed with you." This statement does indicate the foreperson had an unreported conversation with the district attorney. However, even assuming this constitutes error, defendant fails to establish the necessary prejudice to warrant post-conviction reversal. (People v. Jablonski, supra, 37 Cal.4th at p. 800; People v. Alvarez, supra,14 Cal.4th at p. 196, fn. 8.) The statement indicates that the topic of conversation was memorialized in the note. Moreover, the contents of the January 10 note are nearly identical to the substance of the January 9 note, suggesting that the four topics identified in the two notes constitute the extent of the jury's interest.*fn6
2. Prosecutorial Misconduct
Defendant contends the prosecutor committed misconduct during the guilt phase of the trial when, in the course of examining a prosecution witness, she implied defendant could, and should, have had the DNA evidence retested. Defendant argues reversal is required because his rights under state law and the Fifth, Sixth, and Fourteenth Amendments to the federal Constitution were violated. We disagree.
Mary Hong, a crime lab forensic scientist put on by the prosecution, testified extensively about DNA, the DNA testing in the case, and on the methods and reliability of DNA testing. On cross-examination, defense counsel elicited that the crime lab, which did the DNA testing, was affiliated with the Orange County Sheriff's Department. Defense counsel also elicited that the crime lab performed analyses for other police agencies, but that it was not open to the public nor could a private person come in and ask for assistance in doing an analysis.
On redirect examination, the prosecutor explicitly referenced defense counsel's question about private persons not being able to obtain the crime lab's assistance in analyzing DNA. The prosecutor then asked, "Are you familiar with a procedure where the defense can come in and actually get a split of the sample of evidence and have it tested privately in any lab that they choose?" Hong answered, "Yes," and the prosecutor followed up by asking whether "any split [was] asked for in this particular case so that the defense could have retested any particular sample or any particular test . . . ?" Defense counsel objected and asked to approach.
The trial court excused the jury for the day and then heard counsels' argument. Defense counsel argued that the question was irrelevant and was substantially more prejudicial than probative as the jury would infer that defendant's failure to retest meant he agreed with the results of the People's DNA testing. The prosecutor responded that the question was relevant to demonstrate that the evidence was available for retesting if defendant so desired. The trial court said, "That's in." The prosecutor then pointed out the defense counsel had opened the door by eliciting testimony about the inability of a private person to seek assistance with analysis. The court said there was a difference between the ability of a private person to request a split of a sample of evidence and whether such a split was sought by defendant in this case. The latter area of inquiry would lead to questions about the credibility and competence of defense counsel and why they did not seek a split for retesting. Accordingly, the trial court ruled the probative value was substantially outweighed by the risk of prejudice and sustained the objection to the question of whether defendant sought a split.
The next morning, defense counsel moved for a mistrial on the basis of prosecutorial misconduct. Defense counsel argued that the prosecutor's question had implied to the jury that it was defendant's burden to provide evidence. Failing a mistrial, defense counsel requested an admonition. The trial court denied defendant's motion for a mistrial, explaining that the brief question did not cause such prejudice that it could not be sufficiently cured with an admonition. Further, the trial court declined to conclude the prosecutor had committed misconduct. The trial court indicated it would admonish the jury, and upon resumption of redirect examination, did in fact admonish the jury that the court had sustained defendant's objection, that questions are not evidence, and that it should not speculate as to what the answer might have been.
Later, during the redirect examination of Ed Buse, another crime lab forensic scientist, the prosecutor asked, "And there are samples available in the crime lab on this case, so that if there were more probes -." Defense counsel objected and asked to approach. Defense counsel argued the prosecutor's question again insinuated that defendant had the burden to retest the DNA sample. The prosecutor responded that she, consistent with the court's earlier ruling, was not asking whether the defense sought a sample, but rather whether there was evidence available for retesting at all. The trial court nonetheless sustained the objection, ruling that the question improperly implied defendant should have retested the available sample. The prosecutor could ask whether there was a sample available for the crime lab to test, but could not imply defendant could use it to retest if he wanted to.
During the cross-examination of Dr. Bruce Kovacs, the prosecution expert called to testify about the reliability of DNA evidence, defense counsel challenged the testing protocol followed in this case. The defense also asked Dr. Kovacs whether one of the DNA tests had gone wrong because the printout did not show a control blank. Dr. Kovacs responded that, in the specific sample counsel cited, it could not be determined whether something had gone wrong. In her redirect examination the prosecutor asked, "Would there be a way - if somebody wanted to - to see if there was a problem, that they could go back and run a control blank on this?" Defense counsel objected that the question was irrelevant and speculative, and the trial court sustained the objection as speculative. The prosecutor then asked, "Doctor, are you familiar with ways in which a sample can be tested months or years later to determine if there was any problem that existed at the time?," to which Dr. Kovacs responded, "Yes." Dr. Kovacs explained how DNA evidence was frozen and kept, allowing retesting. Defendant did not object.
During the cross-examination of defense DNA expert witness, Dr. William Shields, the prosecutor asked whether he, had he been asked to, could have taken evidence, such as the evidence in this case, and run an analysis. Dr. Shields testified that he could do that. The prosecutor then asked whether a National Research Counsel report recommended retesting to ensure quality control, and Dr. Shields agreed that retesting was recommended. The prosecutor continued, "In other words, retesting is a wrongly accused person's best insurance against the possibilities of being falsely -" Defense counsel objected and the trial court sustained the objection.
During closing arguments, the court granted defense counsel's request for an order prohibiting the prosecutor from commenting on defendant's failure to retest the DNA evidence.
Defendant claims the prosecutor's questions constituted reversible misconduct because they allegedly insinuated defendant should have retested the DNA evidence. We disagree.
A prosecutor's conduct violates a defendant's federal constitutional rights when it comprises a pattern of conduct so egregious that it infects " 'the trial with unfairness as to make the resulting conviction a denial of due process.' [Citation.]" (Darden v. Wainwright (1986) 477 U.S. 168, 181.) The focus of the inquiry is on the effect of the prosecutor's conduct on the defendant, not on the intent or bad faith of the prosecutor. (People v. Crew (2003) 31 Cal.4th 822, 839.) Conduct that does not render a trial fundamentally unfair is error under state law only when it involves " ' "the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury." ' [Citations.]" (People v. Espinoza (1992) 3 Cal.4th 806, 820.)
To preserve a claim of prosecutorial misconduct for appeal, " 'the defense must make a timely objection at trial and request an admonition; otherwise, the point is reviewable only if an admonition would not have otherwise cured the harm caused by the misconduct.' [Citations.]" (People v. Earp (1999) 20 Cal.4th 826, 858.) When a trial court sustains defense objections and admonishes the jury to disregard the comments, we assume the jury followed the admonition and that prejudice was therefore avoided. (People v. Jones (1997) 15 Cal.4th 119, 168.) Whether misconduct warrants a mistrial is a decision which is within the sound discretion of the trial court. (People v. Price (1991) 1 Cal.4th 324, 430.)
Defendant first argues the prosecutor violated the work product privilege by asking questions that sought to invade defense counsel's impressions or thought process. We initially note that the claim is forfeited because defendant failed to invoke the work product privilege as the basis of his objection or to request an admonition when an admonition would have cured any prejudice.
(People v. Earp, supra, 20 Cal.4th at p. 858.) Furthermore, we conclude the prosecutor's questions did not violate the work product privilege. In rejecting a nearly identical claim, we recently explained that section 1054.6 provides that the privilege applies in criminal cases only to materials or information that are work product as defined in Code of Civil Procedure section 2018.030, subdivision (a).*fn7
(People v. Zamudio (2008) 43 Cal.4th 327, 351-356.) That subdivision defines work product as a "writing that reflects an attorney's impressions, conclusions, opinions, or legal research or theories." (Code Civ. Proc., § 2018.030, subd. (a), italics added.) The prosecutor's questions at issue here merely sought to clarify that, contrary to defense counsel's implication, DNA samples were available for independent testing. As such, the prosecutor's questions did not elicit or attempt to elicit evidence of a "writing" reflecting defense counsel's "impressions, conclusions, opinions, or legal research or theories" and therefore did not violate the work product privilege.
Defendant also argues the prosecutor committed misconduct by blatantly ignoring the trial court's rulings. To the contrary, the record established that the prosecutor was trying to follow what was, at times, less than clear guidance from the court. The prosecutor first asked Hong whether the defense had requested a split for retesting. The court sustained defendant's objection, but told the prosecutor she could ask whether evidence was available for retesting. During her examination of Buse, the prosecutor asked whether samples were available for further testing. Even though the question was consistent with the court's prior ruling, the court sustained defendant's objection and suggested the prosecutor only ask whether evidence was available for the crime lab to retest. After defense counsel elicited testimony from Dr. Kovacs about a problem with one of the DNA tests, the prosecutor asked whether it would be possible to retest a sample to determine whether there had been any problems. Nothing about the question suggested the prosecutor was talking about retesting by the defendant, as opposed to the crime lab. Finally, when examining Dr. Shields, following up on the witness's testimony that a report recommended retesting to ensure quality control, the prosecutor asked whether, therefore, retesting was a wrongly accused person's best insurance against being falsely convicted. An objection was sustained and the prosecutor moved on. While the last question could be interpreted as having violated the court's rulings, the record demonstrates that, overall, the prosecutor was attempting to follow the court's instructions regarding what was permissible.
Defendant makes a number of other arguments that we briefly address. Defendant claims the prosecutor's questions violated Griffin v. California (1965) 380 U.S. 609, in which the high court held the prosecution may not comment on a defendant's failure to testify. (Id. at p. 615.) However, Griffin does not prevent a prosecutor from commenting upon the evidence or upon the failure of the defense to introduce material evidence. (People v. Bradford (1997) 15 Cal.4th 1229, 1339.) Nor did the prosecutor's questions, as defendant asserts, violate his attorney-client privilege. The privilege protects the disclosure of "a confidential communication between client and lawyer." (Evid. Code, § 954.) Asking whether there was evidence available for retesting, and even whether the defense sought a split of the sample, did not violate the privilege. (People v. Coddington (2000) 23 Cal.4th 529, 605.) Nor did the prosecutor's questions shift the burden of proof onto defendant. The prosecutor did not state or imply that defendant had a duty to produce evidence. The ...