THE PEOPLE, Plaintiff and Respondent, v. CLIFFORD STANLEY BOLDEN, Defendant and Appellant, 29 Cal. 4th 515

Opinion KENNARD, J. Defendant Clifford Stanley Bolden appeals from a judgment of death upon his conviction by jury verdict of one count of murder in the first degree (Pen. Code, § 18V), with the special circumstance of murder in the commission of robbery (§ 190.2, subd. (a)(17)(A)), and one count of robbery (§211), with use of a deadly weapon to commit both offenses (§ 12022, subd. (b)). The jury that returned these verdicts as to guilt and special circumstance also returned a penalty verdict of death for the offense of first degree murder.

The trial court denied the automatic motion to modify penalty (§ 190.4, subd. (e)) and sentenced defendant to death. This appeal from the judgment of death is automatic. (§ 1239, subd. (b).) We will affirm the judgment in its entirety. I. Facts and Proceedings Henry Michael Pedersen was found dead in his apartment. He had been stabbed to death, and his body had been wrapped in a bedspread and placed in a bathtub. When last seen alive, Pedersen was in defendant’s company, and defendant’s fingerprints were found in Pedersen’s apartment.

When the police arrested defendant for Pedersen’s murder, defendant had property belonging to Pedersen, and he was carrying a knife that was stained with human blood consistent with Pedersen’s blood type. A. Prosecution’s Guilt Phase Case-in-chief On September 8, 1986, Pedersen, an unemployed accountant, lived by himself in the upper unit oí a three-unit apartment building in San Francisco. During the early afternoon, he went to a bar called the Pendulum, where the bartender, Thomas Sherck, recognized him as a regular customer.

In the gay community of San Francisco, the Pendulum was known as a bar where Black men could meet White men. Sherck also saw defendant in the bar that afternoon. Defendant had placed an advertisement in the personals

section of a local newspaper describing himself as a “black body builder, sculptured rock hard” and offering his services as an escort and model. Around 5:00 p.m., Pedersen returned to his apartment where he spoke to Wayne L. Frye, a friend who occupied the ground floor apartment in the same building. Pedersen left again a short time later. Lawrence Weathers, another friend of Pedersen’s, met Pedersen at the Pendulum between 5:00 and 6:00 p.m. Weathers saw Pedersen speak to defendant for 10 to 15 minutes. Pedersen left a short time later.

Defendant followed and caught up with Pedersen, and the two continued walking together. Bruce Wertin, another bartender at the Pendulum, saw defendant there after 11:00 p.m., but Wertin was not acquainted with Pedersen and could not say whether Pedersen was there at that time. That night, Frye heard Pedersen return to his apartment with another person between 11:00 p.m. and 1:00 a.m. Frye heard music being played in Pedersen’s apartment and later he heard one person leave.

Around 2:45 a.m., Bruce Wertin was waiting at a bus stop on Market Street when he saw defendant walking from the direction of Pedersen’s apartment carrying an athletic bag. Wertin and defendant rode the same bus, and both got off at the comer of Market and Eighth Streets. Around 6:00 p.m. on September 9, Frye went to Pedersen’s apartment to investigate the sound of running water. After knocking and getting no response, he entered the apartment. In the bathroom, he found Pedersen’s body in the bathtub, wrapped in a brown bedspread, with his head under the running faucet. Frye immediately contacted the police.

At the time of his death, Pedersen was 46 years old, stood five feet nine inches tall, and weighed 165 pounds. An autopsy of his body revealed that the cause of death was shock and hemorrhage caused by a stab wound to the back, just to the left of the center line and below the shoulder blade. This wound was five to six inches deep and five inches long, and it penetrated the lung and the spleen. There was also an L-shaped incised wound on Pedersen’s chest, consisting of a vertical cut along the sternum and a horizontal cut along the ribs. Each of these cuts penetrated to the bone but not into the chest cavity.

Pedersen’s nose was fractured at the base and there was an abrasion and redness along the bridge of the nose. These injuries could have been caused either by a blow or by falling against a hard object. There were no defensive wounds on the body. Blood taken from the body had an alcohol content of .36 percent. Police investigators observed no signs of a struggle in the apartment. On the coffee table in the living room were an empty wine bottle and two glasses.

When the investigators turned over the cushions on the couch, they saw that the center cushion was saturated with blood, and the two outer cushions each had blood spatters. Defendant’s fingerprints were found on the wine bottle, on one of the wine glasses, and on the bathtub. A warrant was issued for defendant’s arrest. Defendant was arrested on September 11, 1986. The arresting officers found a doubled-edged knife in a black sheath strapped to defendant’s leg, concealed by his pants and socks. The knife, which had a six-inch blade, could have been the weapon that killed Pedersen.

Defendant’s pockets contained a gold bracelet engraved with the initials HMP and one gold cuff link. In the hall closet of defendant’s apartment, officers found a black athletic bag containing these items: a gold cufflink matching the one found in defendant’s pocket, a camera, binoculars, a wristwatch, a coin issued in 1977 to commemorate the Silver Jubilee of Queen Elizabeth, and a plastic vial containing 50-cent pieces. The camera contained film; when this film was developed, the photographs included views of Pedersen’s apartment building.

Pedersen’s brother identified the camera found in defendant’s apartment as one he had loaned to Pedersen. He identified the binoculars as those he had given to Pedersen around 1973. He said Pedersen usually kept the binoculars on the dining table or the coffee table in his apartment. He identified the plastic vial with 50-cent pieces as property that Pedersen usually kept on a bookcase in his bedroom. Michele Garrison, one of Pedersen’s former coworkers, identified the bracelet found in defendant’s pocket as one she had caused to be engraved with Pedersen’s initials and had given Pedersen around 1973.

Kathryn Hendricks, a friend of Pedersen’s, identified the gold cuff links, one of which was found in defendant’s pocket and the other in defendant’s apartment, and the binoculars found in defendant’s apartment, as items belonging to Pedersen. She said Pedersen had used the binoculars when attending opera and ballet performances. Joseph Falardi, another friend of Pedersen’s, also identified the camera, binoculars, and the vial with coins as property belonging to Pedersen. Marion Seitz, a friend and former coworker of Pedersen’s, identified the 1977 commemorative coin as one she had given Pedersen.

She testified that she had attended a concert with Pedersen on September 7, 1986, the night before he was killed, and that during the concert Pedersen had used the binoculars that were found in defendant’s apartment. Debbie Madden, a police criminalist specializing in forensic serology, examined the knife defendant was carrying when arrested and found a dried stain on the blade where it entered the knife’s hilt. She scraped off the dried material and, upon testing, determined that it was human blood.

By further testing using the electrophoretic multisystem method, she determined that the blood was BSD type 2-1 and PGM type 1. This was consistent with Pedersen’s blood and with the blood of 13 percent of the White population, but it was inconsistent with defendant’s blood. B. Defense Case at the Guilt Phase Duayne J. Dillon, a consulting criminalist, testified that his examination of the wine bottle and glasses found in Pedersen’s apartment revealed no evidence that any of these objects had been wiped to remove fingerprints.

On the wine bottle there was a mark indicating something had come in contact with the bottle, leaving a smudge, but the mark covered less than 3 percent of the bottle’s surface. There were no marks on either wine glass consistent with wiping. Although more fingerprint powder adhered to one glass than to the other, this did not indicate that one of the glasses had been wiped. Rather, it indicated that there was more oil or other residue on the surface of the glass to which more powder adhered. James Lord testified that he was a close friend of victim Pedersen.

During the months of July to September 1986 Pedersen was not working. Pedersen frequented bars, including the Pendulum, in the Castro area of San Francisco. Defense counsel showed Lord a copy of a newspaper called the Bay Area Reporter in which defendant had advertised his services as a model or escort. Lord testified that the Bay Area Reporter was a newspaper that circulated primarily in the gay community. He knew of one occasion on which Pedersen had answered a similar newspaper advertisement. Mary Elizabeth Reynolds testified she was the assistant manager of a clinical laboratory at a hospital.

Her duties included quality assurance for clinical tests performed in the laboratory, including blood tests. She reviewed the testimony of prosecution criminalist Debbie Madden about the blood testing in this case, and particularly the test, known as the Ouchterlony species test, used to determine that there was human blood on the knife that defendant was wearing when he was arrested. She also reviewed the documentation that Madden had prepared for the Ouchterlony test. In Reynolds’s opinion, Madden’s documentation and the procedures she used were improper in several respects.

As a result, Reynolds formed the opinion that the result that Madden reported for this test was not scientifically reliable. In argument to the jury, defense counsel questioned the sufficiency of the prosecution’s evidence to prove beyond a reasonable doubt that defendant committed robbery and murder. Counsel argued that the forensic testing of the stain on the knife was scientifically flawed and unreliable, thus generating a reasonable doubt that defendant had killed Pedersen.

Counsel further argued that even if the jury concluded that defendant was responsible for Pedersen’s death, the prosecution’s evidence was insufficient to prove that robbery was the motive for the killing. Referring to evidence indicating that Pedersen had invited defendant to his apartment, counsel suggested that the jury could reasonably infer that Pedersen gave his property to defendant in payment for defendant’s services as a model or escort, or, alternatively, that defendant decided to take Pedersen’s property only after Pedersen’s death. C.

Guilt Phase Verdicts The jury returned verdicts finding defendant guilty of the charged offenses of robbery and murder, found the murder to be of the first degree, and found true the special circumstance allegation that the murder occurred during a robbery. The jury also found that defendant used a deadly weapon in the commission of the murder and the robbery. D. Prosecution’s Penalty Phase Case in Aggravation On January 3, 1979, defendant was living in San Francisco with a woman named Frances Ned. They were often homeless and slept on the streets. They frequently became drunk from fortified wine.

Defendant practiced martial arts techniques in public parks. Around 2:30 p.m. that day, defendant and Ned encountered a man named Ernest Cole on Seventh Street between Mission and Market Streets. Defendant spoke with Cole. Although at trial Ned denied that she heard what Cole said, she had previously told police investigators that Cole offered defendant $20 to have sex with Ned and that defendant became angry because she was not a prostitute and defendant was very jealous. Defendant entered a liquor store and bought a bottle of wine, telling Ned that he hoped Cole would follow them.

As they walked toward an alley, Cole caught up with them. Defendant, Ned, and Cole shared the wine as they continued walking. They stopped and defendant placed his left hand around Cole’s face while he slashed Cole’s throat with a machete that defendant kept under his coat. Cole died almost immediately from a deep wound to the neck that severed both arteries and airway. The next day, around 10:00 a.m., Andrew Kitchen was walking from a neighborhood grocery store to the hotel where he lived in San Francisco when defendant stopped him and accused him of trying to “make” defendant’s girlfriend.

Kitchen understood that defendant was referring to Frances Ned. Kitchen told defendant that he had the wrong person, and he suggested they talk to Ned. They walked up the street to where Ned was standing. Kitchen asked Ned to tell defendant that Kitchen was not the person defendant was looking for, but Ned smiled and said he was the person. Defendant pulled out a machete and swung it at Kitchen, cutting the skin over a rib on his left side. Kitchen ran away and reported the incident to a police officer. On May 4, 1979, defendant and Ned were in San Jose to visit Ned’s children, who were in foster care.

Around 4:00 a.m., they were walking in an alley in downtown San Jose when they encountered Cmz Ramirez, who asked Ned where she lived. Defendant and Ramirez exchanged words. Defendant pushed Ramirez down and stabbed him twice in the back with a knife that defendant carried in his waistband. Defendant took some money from Ramirez’s pocket. Defendant and Ned went to St. James Park, where defendant discarded the knife. Ramirez died from a stab wound to the back penetrating the aorta and lung. A second stab wound penetrated the pancreas but would not by itself necessarily have been fatal.

Ramirez’s blood-alcohol content was .28 percent. On September 8, 1979, around 2:30 a.m., Gausena Wijipayala was driving in San Francisco when he stopped to pick up two hitchhikers, defendant and Frances Ned, at the comer of Sixth and Market Streets. After four or five blocks, Ned said she wanted to go to the bathroom. When Wijipayala stopped the car, defendant pulled him out of the car and hit him in the face. Defendant threw him into some bushes and took his watch and $8 or $9 that he had in his shirt pocket.

Wijipayala ran to the Transbay Terminal and reported the incident to police, who promptly located and arrested defendant nearby with Wijipayala’s watch and $9 in his pockets. The prosecution introduced evidence that defendant had sustained these prior felony convictions: On December 18, 1979, judgment was pronounced on defendant’s convictions for robbery (§211) and possession for sale of a controlled substance (Health & Saf. Code, § 11351). On February 25, 1981, judgment was pronounced on defendant’s convictions for voluntary manslaughter (§ 192) and robbery (§211), the victim of these offenses being Cmz Ramirez.

On November 12, 1981, judgment was pronounced on defendant’s conviction for the voluntary manslaughter of Ernest Cole. On October 23, 1984, judgment was pronounced on defendant’s conviction for prison escape without violence (§ 4530, subd. (b)). E. Defense Penalty Phase Case in Mitigation For its case in mitigation, the defense presented evidence of defendant’s life history. Gretchen White, a clinical psychologist, and Harry Z. Coren, a psychiatrist, provided expert opinions on how certain aspects of defendant’s history had affected his development.

Defendant’s parents met in Charleston, South Carolina, shortly after World War II, and they married in 1947. Defendant’s father had served about five years in the United States Marine Corps during the war, with extensive combat experience in the Pacific. After the marriage, they lived in Summerville, South Carolina. Defendant’s father did odd jobs but never held steady employment. Defendant’s mother did housecleaning and other domestic work. Defendant was bom in 1954, the second of five children bom of the marriage.

He had an older brother Paul, a younger brother Thurgood, and two younger sisters, Paulette and Vera. Defendant’s father was an alcoholic who beat defendant’s mother when intoxicated. He was very jealous. Sometimes he made his children stand in a line against a wall while he beat their mother. Defendant had a severe stutter as a child, probably accompanied by facial grimaces as he attempted to get his words out. Defendant’s father was embarrassed by this and did not take defendant with him on outings when he took defendant’s older brother and younger sister Paulette.

Defendant felt ignored and rejected by his father, and as a result he felt like a failure, worthless. In July 1961, when defendant was almost seven years old, defendant’s mother separated from his father after he threatened to kill her with a butcher knife. Defendant’s mother moved with all the children to Hillsborough, North Carolina, where at first they lived in a small two-bedroom house with defendant’s aunt and her husband and three children. A few months later, defendant’s mother moved with her children into their own two-bedroom house, where they remained throughout the rest of defendant’s childhood.

Defendant never saw his father again. Defendant’s mother joined the congregation of a local Baptist church, where she taught Sunday school. Defendant and her other children attended Sunday school and church services and sang in the choir. Defendant had a good singing voice and did not stutter when he sang. Defendant was a quiet, shy child, with only a few friends. Other children teased him because of his stuttering. He was very good at drawing. At a young age, defendant announced that he wanted to be strong, and he began his own program of body building.

He also developed a consuming passion for karate and other martial arts and taught himself, working with fantastic intensity. He did well in school and caused no problems for the teachers. He was not involved in any delinquent behavior. When defendant was around 10 years old, his mother took him to a psychologist or psychiatrist because of his stuttering, his persistent bed-wetting, and his quiet, withdrawn habits. She was told that he would probably grow out of these difficulties, and no treatment or therapy was provided.

Defendant dropped out of high school in 1973, a few months before he was scheduled to graduate. In February 1975, after a series of short-term jobs as a janitor and brickmaker or bricklayer, defendant enlisted in the Marine Corps. Defendant did well during training camp, and his letters to his mother during that period showed his enthusiasm for military service and his idealism. After he completed his training, defendant was sent to the Philippines. During combat training there, defendant broke his kneecap and underwent two operations to repair it.

According to Psychologist White, this injury was devastating for defendant, because it destroyed his self-image as someone who was invincible. Apparently defendant was no longer considered fit for combat duty and was assigned to desk jobs. Defendant’s behavior deteriorated, and he was disciplined for being absent and being disrespectful to officers. He also formed a relationship with a Filipino woman who was 18 years older than he was, and he contracted syphilis.

While in the Philippines, defendant began to speak with a Caribbean or Jamaican accent as a final technique to master his stuttering and also because it had a certain status value. In September 1976, he was discharged “under honorable conditions.” Defendant had no male figure to help him deal with disappointment and to restructure his life. Feeling too ashamed to return to the family home in North Carolina, defendant came to San Francisco, where he met and began living with Frances Ned, who was 10 years older than defendant and also had a knee injury.

They frequently slept on the streets and engaged in heavy alcohol consumption. According to Psychiatrist Coren, the alcohol abuse may have been an attempt to self-medicate for depression. Defendant was jealous and overprotective of Ned. Defendant continued his bodybuilding exercises and martial arts training. According to Coren, defendant feels a powerful need to protect women. In 1980, after his conviction for the voluntary manslaughter of Cruz Ramirez, defendant began serving a prison sentence.

Around three months after entering prison, defendant had two of his fingers accidentally cut off by a power saw in the prison woodshop. According to Psychologist White, this event further weakened his self-image as a strong and indestructible person. In 1983, while housed at the California Men’s Colony in San Luis Obispo, defendant worked in the hospital there.

Doralee King, who was then a supervising nurse, testified that defendant was an “exceptional worker” who was “liked by staff and peers.” Defendant returned to work at the prison hospital in 1985, and he again received very positive evaluations for his work performance. In 1984, while in a prerelease program, defendant walked away from the prison. He was quickly recaptured in the town nearby.

According to Psychologist White, defendant’s nonviolent escape, with little or no effort to avoid recapture, probably indicated a subconscious desire to remain in the structured prison environment, a feeling that he was not ready to rejoin society. When defendant was released from prison in 1986, he returned to San Francisco, where he met and began living with Andre Montgomery, who worked as a female impersonator at a nightclub. Unable to find other work, defendant began to do nude modeling for magazines and advertised his services as an escort.

Defendant enjoyed having people admire his body, but he was ashamed of the sexual aspect of his work. In addition to describing defendant’s childhood, defendant’s mother, his sister Paulette, his brother Thurgood, his aunt Bernice White, his cousin Phillip White, and his cousin Bobby Brown all expressed their love for defendant and asked the jury to spare his life. Shortly before the trial in this case, Myla Young, a clinical psychologist, administered three different tests to defendant to measure his intelligence.

His performance was consistent, indicating intelligence in the low average range, with an IQ of around 85. This was significantly lower than at the time of his admission to the Marine Corps, when he tested in the average range, with an IQ of around 100. Young also administered 15 standardized neuropsychological tests to determine brain impairment. These tests showed mild organic impairment in brain functions relating to short-term verbal memory, emotional control, inhibition of behavior, understanding of behavioral consequences, and planning.

These results are consistent with various causes, including chronic drug or alcohol abuse or a disease such as syphilis. To determine whether defendant has a mental disorder, Young administered standardized tests, including the Rorschach and the Minnesota Multiphasic Personality Inventory (MMPI). The results of these tests revealed no major mental disorder, but they were consistent with chronic depression. Defendant does not meet the criteria for antisocial personality disorder because he manifested no antisocial behavior before age 15, and he did not demonstrate an inability to form attachments.

Indeed, Young concluded, defendant appears to have the opposite problem: he forms attachments that are too intense and overwhelming. In 1987, Gabriel Baltes, a member of the Benedictine order, met defendant in jail while defendant was awaiting trial for the murder of Pedersen. Baltes visited the jail to provide spiritual guidance and comfort to inmates. He spoke with defendant for approximately an hour twice a week for two years and formed a close and brotherly relationship with defendant. Freedonia Woodard met defendant in September 1989 when her son was in jail on a murder charge.

Defendant befriended her son, lifted his spirits, and helped him prepare for state prison. Defendant also helped her deal with her son’s situation. At the time of trial, they continued to talk on the phone every day. Two officers who worked at the jail during the same period, Robert Cooper and Rick Jackson, testified that defendant was a “model prisoner,” very respectful and friendly to the jail staff. James Park, a retired prison administrator, testified about the very high level of security at prisons housing prisoners serving sentences of life without possibility of parole. II.

Issues Relating to Jury Selection A. Rulings on Challenges for Cause Defendant contends that by excusing four prospective jurors for cause on the prosecutor’s challenges, the trial court violated his rights to a fair trial and to an impartial jury guaranteed by the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution. 1. Voir dire responses of Prospective Jurors G.R., D.H., M. W., and R.R. Prospective Juror G.R. said she was philosophically opposed to the death penalty.

Asked by the court whether she would always vote for life without possibility of parole, regardless of the evidence presented, she at first said she did not know the answer to that question. “Whether or not in good conscience I could vote for the death penalty, I truly can’t tell you at this point.” Asked by defense counsel whether she could consider both penalties, she said: “I think I could do that. I cannot tell for sure until I’m in that situation.” Addressing the court, she said: “What I’m trying to say is I truly don’t know what I would do faced in a situation ....

I truly don’t know, and I’ve tried to say that I really do have a gut level reaction against the death penalty.” “I can tell you I have a gut reaction against the death penalty. I truly do.” Asked again by the court if she could vote for the death penalty if the evidence indicated it was appropriate, she said: “I think I would have to say in that situation, that I can’t—I don’t know what I would do, but I cannot in good conscience tell you that I know that I could impose it because I don’t know that I could impose it at this point.” The court granted the prosecutor’s challenge for cause.

On examination by the court, Prospective Juror D.H. said: “I couldn’t vote for the death penalty.” On further question by the court, she said: “I would not impose the death penalty.” On voir dire by the prosecutor, she said: “It would be a very difficult thing for me to do. I perhaps would be biased against the death penalty.” She added: “Naturally, the evidence is what I would go on, but, the death penalty, it’s very questionable whether I could vote for it.” The court granted the prosecutor’s challenge for cause.

On examination by the court, Prospective Juror M.W. said: “I have mixed feelings about the death penalty, Your Honor.” Asked by the court if she could vote for the death penalty if she felt it appropriate, she answered: “I don’t think so.” Asked by the prosecutor if she could vote for the death penalty if convinced it was appropriate, she said: “I don’t know. I have to hear all the evidence.” The court granted the prosecutor’s challenge for cause.

On examination by the court, Prospective Juror R.R. said: “I am opposed to the death penalty.” On voir dire by defense counsel, she said: “I don’t think I could find the death penalty ever appropriate.” The court granted the prosecutor’s challenge for cause. 2. Analysis Under both the federal and state Constitutions, a sentencing jury in a capital case must be impartial. (People v. Williams (1997) 16 Cal.4th 635, 666-667 [66 Cal.Rptr.2d 573, 941 P.2d 752]; see also Morgan v.

Illinois (1992) 504 U.S. 719, 726-728 [112 S.Ct. 2222, 2228-2229, 119 L.Ed.2d 492].) The trial court may excuse for cause a prospective juror who on voir dire expresses views about capital punishment, either for or against, that “would ‘prevent or substantially impair’ the performance of the juror’s duties as defined by the court’s instructions and the juror’s oath.” (People v. Crittenden (1994) 9 Cal.4th 83, 121 [36 Cal.Rptr.2d 474, 885 P.2d 887], quoting Wainwright v.

Witt(1985) 469 U.S. 412, 424 [105 S.Ct. 844, 852, 83 L.Ed.2d 841].) On appeal, we will uphold a trial court’s ruling on a challenge for cause by either party “if it is fairly supported by the record, accepting as binding the trial court’s determination as to the prospective juror’s true state of mind when the prospective juror has made statements that are conflicting or ambiguous.” (People v. Mayfield (1997) 14 Cal.4th 668, 727 [60 Cal.Rptr.2d 1, 928 P.2d 485]; see also People v. Jenkins (2000) 22 Cal.4th 900, 987 [95 Cal.Rptr.2d 377, 997 P.2d 1044]; People v. Crittenden, supra, 9 Cal.4th at p. 122; People v.

Mincey (1992) 2 Cal.4th 408, 456-457 [6 Cal.Rptr.2d 822, 827 P.2d 388].) Applying these standards, we uphold the excusáis for cause. The responses of Prospective Jurors D.H. (“I would not impose the death penalty”) and R.R. (“I don’t think I could find the death penalty ever appropriate”) indicate unequivocally that their death penalty views would have prevented or substantially impaired their performance of the duties of a juror in a capital case as defined by the court’s instructions and the juror’s oath.

The responses of Prospective Jurors G.R. and M.W. were ambiguous or equivocal, and as to them we accept the trial court’s implied determination that their death penalty views likewise would have prevented or substantially impaired their performance of the duties of a juror in a capital case. B.

Adequacy of Trial Court’s General Voir Dire Defendant contends that the trial court did not conduct an adequate general voir dire of the prospective jurors, resulting in a denial of a right under the federal Constitution’s Eighth Amendment to reliable verdicts in a capital case, of a right under the federal Constitution’s Sixth Amendment— and the corresponding provision of the California Constitution (Cal. Const., art. I, § 16)—to trial by an impartial jury, and of a right under the federal Constitution’s Fourteenth Amendment to due process of law. We reject the contention.

Before explaining why we reject defendant’s claim on the merits, we consider and reject respondent’s argument that the defense did not preserve this claim for appellate review because the defense did not use all of its peremptory challenges. When voir dire is inadequate, the defense is denied information upon which to intelligently exercise both its challenges for cause and its peremptory challenges.

Because the exercise of peremptory challenges cannot remedy the harm caused by inadequate voir dire, we have never required, and do not now require, that counsel use all peremptory challenges to preserve for appeal issues regarding the adequacy of voir dire. “ Voir dire plays a critical function in assuring the criminal defendant that his Sixth Amendment right to an impartial jury will be honored.

Without an adequate voir dire the trial judge’s responsibility to remove prospective jurors who will not be able impartially to follow the court’s instructions and evaluate the evidence cannot be fulfilled.” (Rosales-Lopez v. United States (1981) 451 U.S. 182, 188 [101 S.Ct. 1629, 1634, 68 L.Ed.2d 22].) Here, the trial court posed questions to the prospective jurors on general voir dire and then permitted counsel for both sides to pose additional questions.

In this situation, reversal of the judgment is required only if the voir dire was “so inadequate that the reviewing court can say that the resulting trial was fundamentally unfair.” (People v. Holt (1997) 15 Cal.4th 619, 661 [63 Cal.Rptr.2d 782, 937 P.2d 213].) Applying this standard, we find no basis for reversal here. We have advised trial judges to “closely follow the language and formulae for voir dire recommended by the Judicial Council in the [California Standards of Judicial Administration (Standards)] to ensure that all appropriate areas of inquiry are covered in an appropriate manner.” (People v.

Holt, supra, 15 Cal.4th at p. 661.) Here, the trial court asked most of the questions recommended in the Standards and did not prohibit the parties from asking any of the remaining questions. In addition, the questionnaires that all prospective jurors completed inquired into many of the same areas covered in the Standards’ recommended voir, dire questions. Defendant complains, first, that the trial court failed to ask the 18 prospective jurors seated in the jury box whether any of them had any prior knowledge of defendant, of the alleged victim, or of the facts or events of the case.

Although the court did not ask this precise question, it did inquire whether any prospective juror had previously “had any contact with or dealings with Clifford Bolden, the defendant in this case.” The jury questionnaire, moreover, asked whether the prospective jurors had read newspaper accounts, seen television broadcasts, or heard radio reports about the killing of Michael Pedersen on September 9, 1986.

Finally, the court asked each prospective juror whether he or she “could give both sides a fair trial in this case.” Although the wording of these questions could have been improved in the manner defendant now suggests, they were adequate, particularly when the trial court permitted defense counsel to ask additional questions. Defendant complains, next, that the trial court failed to require prospective jurors who entered the jury box after the original 18 to answer the questions asked of the original panel members about prior acquaintance with defendant, counsel, or prospective witnesses.

We find this criticism to be unfounded. At the outset of general voir dire, the trial court asked the prospective jurors not seated in the jury box “to pay attention to the questions” and to “make a little mental or written note” if any of the questions applied to them so that if they were called into the jury box they could then direct the court’s attention to any question that applied to them. This was sufficient to alert the prospective jurors not originally seated in the jury box of their obligation to disclose any information about prior acquaintance with counsel, prospective witnesses, or defendant.

Defendant observes that under questioning by defense counsel, Prospective Juror A.N. said that “the judge” had told him that defendant “was caught with” some of the victim’s belongings. Because the appellate record fails to indicate when, if ever, the trial court disclosed this information, defendant faults both the trial court and defense counsel for failing to ask follow-up questions to determine how Prospective Juror A.N. acquired knowledge of these facts and whether he was aware of other potentially prejudicial information about the circumstances of the crime.

We decline defendant’s invitation to speculate about the source of the prospective juror’s information and about what additional information A.N. may have known. Defense counsel adequately questioned Prospective Juror A.N. to determine whether knowledge of defendant’s possession of the victim’s belongings affected A.N.’s ability to be impartial, and defense counsel could have, but chose not to, exercise a peremptory challenge against A.N. We conclude that this incident does not demonstrate that the general voir dire was so inadequate that the resulting trial was fundamentally unfair.

Finally, defendant complains that the trial court should have disclosed that the victim was White and, because defendant is Black, should have asked whether the prospective jurors held any views or biases on the subject of race that would interfere with their ability to be fair in this case. (See Turner v.

Murray (1986) 476 U.S. 28, 36 [106 S.Ct. 1683, 1688, 90 L.Ed.2d 27].) In a case involving an interracial killing, such as this one, a trial court during general voir dire is required to question prospective jurors about racial bias on request. (Id. at pp. 36-37 [106 S.Ct. at p. 1689] [“a defendant cannot complain of a judge’s failure to question the venire on racial prejudice unless the defendant has specifically requested such an inquiry”].) Here, there was no such request, and the trial court need not make the inquiry on its own initiative. (See People v.

Kelly (1992) 1 Cal.4th 495, 518 [3 Cal.Rptr.2d 677, 822 P.2d 385].) C. Limitation on Peremptory Challenges The trial court decided to have six alternate jurors in addition to the 12 regular jurors sworn to try the case. The court gave each side six peremptory challenges to exercise against the six alternate jurors. The court required that the alternate jurors be selected individually, rather than collectively, however, and that each party exercise only one peremptory challenge as to each alternate juror position.

Defendant contends that in so limiting the exercise of peremptory challenges to alternate jurors, the trial court erred under state law, and that this state law error in turn resulted in a deprivation of his rights under the federal Constitution to an unbiased jury and to due process of law (U.S. Const., 6th & 14th Amends.). As here relevant,

section 1089 provides: “[T]he prosecution and the defendant shall each be entitled to as many peremptory challenges to such alternate jurors as there are alternate jurors called.” Defendant reads this provision as requiring that peremptory challenges be exercised against alternate jurors unencumbered by any restriction to a particular seat or position. Whatever the merits of this construction may be, defendant’s objection “comes too late” because “[objections to the jury selection process must be made when the selection occurs.” (People v.

Johnson (1993) 6 Cal.4th 1, 23 [23 Cal.Rptr.2d 593, 859 P.2d 673].) Because defendant did not object to the “per seat” limitation before jury impanelment was completed, the issue is not preserved for appellate review. III. Issues Relating to Guilt A. Admissibility of Evidence of Prior Robberies After the case was called for trial, but before jury selection began, the prosecutor brought a motion to admit evidence of two prior criminal incidents to prove that defendant formed the intent to steal before or during the fatal assault on victim Henry Michael Pedersen.

The prosecutor alleged that in the first incident, which occurred on a street in San Jose on May 4, 1979, defendant fatally stabbed Cruz Ramirez in the back and then took money from Ramirez’s pocket. The prosecutor alleged that in the second incident, which occurred on September 8, 1979, defendant and his girlfriend Frances Ned hitched a ride from Gausena Wijipayala. When Wijipayala stopped the car to allow Ned to go to the bathroom, defendant seized the ignition key and demanded money. After Wijipayala refused, defendant struck him in the head and took $9 and a wristwatch.

The defense responded with a motion to exclude evidence of the same two incidents. The defense argued that these incidents were not sufficiently similar to the charged crimes to have any relevance on the issues of motive and intent, and that any probative value these incidents possessed was substantially outweighed by their prejudicial effect. The court heard argument from both sides on their cross-motions.

The prosecutor said he proposed to use evidence of the other criminal incidents only to rebut any defense claim that defendant did not form the intent to steal Pedersen’s property until after the fatal assault. The prosecutor also said he was not offering the evidence to prove that defendant and not someone else had killed Pedersen.

The prosecutor asserted that if defendant denied that he had killed Pedersen “there isn’t any disputed issue as to when this intent was formed.” The prosecutor suggested that because it was not yet clear whether the time of the formation of the intent to steal would be a disputed issue, it would be “premature for the court to rule on this motion at the present time.” The prosecutor represented that he would not offer evidence of the prior incidents during the prosecution’s case-in-chief unless the defense raised the issue of after-formed intent by cross-examination of prosecution witnesses or otherwise.

In reply to the court’s questions, defense counsel declined to disclose the nature of the defense and declined to concede the issues of identity, motive, intent, or when the intent was formed. In response, the prosecutor repeated that he would offer evidence of the prior incidents only if the defense raised the issue of after-formed intent, and the prosecutor argued that the court should not give the defense an “early ruling” on the admissibility of the prior incidents without some assurance that the defense intended to raise that issue.

The court then announced what it described as a “tentative ruling” in these words: “There is to be no reference whatsoever to either or both of these prior acts unless and until the district attorney has brought to the court’s attention his viewpoint that the proverbial door has been opened.

In other words, at this juncture, I do not see that these are even being offered by the People let alone necessary to be ruled upon by the court.” The prosecutor did not seek to introduce evidence of the two prior incidents during presentation of his case-in-chief, and the matter was next raised after the prosecution had rested its case. Then, defense counsel asked the court for a “provisional ruling” on the admissibility of the two prior incidents based on “exact offers of proof’ as to the proposed testimony of four defense witnesses.

Defense counsel added that these witnesses were present and had been ordered back, and that “[t]he nature of their testimony is quite brief.” The prosecutor stated that a ruling would be premature “until the court has actually heard the testimony.” Defense counsel responded that any ruling would be provisional in the sense that it would be subject to change if the testimony did not conform to the offer of proof. Defense counsel indicated that one proposed witness was “a forensic man” who would testify to an issue raised by the testimony of Inspector Kenneth Moses concerning prints being wiped off.

Another proposed witness would testify as an expert “that it is not unusual for someone who is in a trade of whether it be prostitution or an escort, what have you, to receive property in lieu, for barter—barter for services as opposed to currency, or on some occasion collateral, for money to be collected later.” The court then stated as a “suggestion” that presentation of evidence about why a person in defendant’s “particular profession” might have another person’s property would put the defense “in jeopardy of having the court rule that intent is in issue” and that the admissibility of the prior crimes evidence “may well come into play and may well face the jury.” The prosecutor again asserted that it would be “highly irregular for the court to rule in advance on evidence that you really haven’t heard.” The court responded: “Counsel, I have no intention of ruling in advance, and I could not in good conscience.” The court added: “Again, I haven’t heard the testimony.

So many words could come into play that would completely change the court’s ruling is what I’m concerned about. . . . I’ve given you as close as I can to the concern of the court and to the fact that the 1101(B) [referring to Evidence Code

section 1101, subdivision (b)], if the witness goes into those details which raise intent, that the court could well rule favorably for the People.” Defense counsel replied, “Thanks, judge.” The defense then called three witnesses: Duayne J. Dillon, James Lord, and Mary Elizabeth Reynolds. The prosecutor offered no evidence in rebuttal.

Defendant contends that the trial court erred in not ruling on the admissibility of the two prior incidents before presentation of the prosecution’s case and again before presentation of the defense case, and also in “suggesting” that evidence of the prior incidents “could well” be admissible if the defense offered evidence that persons engaged in prostitution or acting as escorts commonly accept property in lieu of cash in payment for their services. Defendant contends that in so acting the trial court denied him the due process of law guaranteed by the Fourteenth Amendment to the United States Constitution.

We have previously rejected similar contentions with this explanation: “No ruling was made below. Accordingly, no review can be conducted here. ‘[T]he absence of an adverse ruling precludes any appellate challenge.’ [Citation.] In other words, when, as here, the defendant does not secure a ruling, he does not preserve the point. That is the rule. No exception is available. fl[] Defendant may be understood to maintain that the court did not properly decline to rale. Plainly, the appropriate standard of review is abuse of discretion. [Citation.] The question is close.

The court was obviously reluctant to make a decision of this kind in anticipation of facts that might subsequently come to light. Generally, such reluctance cannot be faulted. [Citation.] Here, however, defendant expressed a not illegitimate need for a determination. The better course for the court might have been to make a ruling without prejudice. All the same, the course it actually took cannot be deemed unreasonable—especially in light of the fact that counsel did not take [the witness] on voir dire to determine whether she would in fact testify as he had represented.” (People v.

Rowland (1992) 4 Cal.4th 238, 259-260 [14 Cal.Rptr.2d 377, 841 P.2d 897].) Here, too, the court made no ruling on the admissibility of the prior incidents, and thus the only point preserved for appellate review is whether the trial court abused its discretion in declining to make the ruling based on an offer of proof as to the likely testimony of a defense witness. Here, too, the question is close, at least as regards the failure to rule after the prosecution had presented its case-in-chief.

When the issue first arose, before jury selection had even begun, the defense expressed no legitimate need for an advance determination, but once the prosecution had rested, defense counsel explained that the defense needed a ruling to decide which defense witnesses to call.

Although this constituted an expression of a legitimate need for an advance ruling, and thus the issue is close, we are not persuaded that the trial court abused its discretion by not ruling at that time, especially given the failure of the defense to suggest that the proposed witness’s testimony be taken on voir dire out of the jury’s presence. Moreover, even if we assume for argument’s sake that the trial court erred, the error was not prejudicial.

Defendant claims that prejudice must be presumed because the record does not show what additional evidence the defense would have offered if the trial court had ruled in defendant’s favor. We disagree. Defendant’s trial counsel stated that the defense was planning to call four witnesses, all of whom had appeared and been ordered to return. After the trial court declined to rale, the defense called three of these four witnesses, none of whom testified in conformity with the offer of proof that prostitutes and escorts may take property instead of cash as payment for their services.

Thus, the record fairly establishes that because of the trial court’s ruling, or lack of ruling, the defense failed to call only one witness, who would likely have testified in conformity with the offer of proof. The defense was not prejudiced by the absence of this witness’s testimony. In this regard, we note that in closing arguments to the jury, defense counsel argued that it was reasonable to infer that defendant had obtained Michael Pedersen’s property in payment for, or as collateral to secure payment for, defendant’s services as an escort.

In reply to this argument, the prosecutor briefly questioned whether it was reasonable to infer that defendant “would even accept something like that with the business he was in,” but then the prosecutor proceeded to make a much stronger argument.

The prosecutor said it was highly unlikely that in payment for escort services Pedersen would give “a cherished bracelet with his initials on it that he’s had for years, ... a camera that belongs to his brother . . . [and] a set of opera glasses that he has used for years and years, performance after performance, something that obviously he cherishes . . . .” Applying the general test for harmless error under state law (People v.

Watson (1956) 46 Cal.2d 818, 836 [299 P.2d 243]), we conclude that it is not reasonably probable that admission of the proposed defense testimony—that it is not unusual for a prostitute or escort to accept payment in the form of property rather than in cash— would have resulted in guilt verdicts more favorable to defendant. Because the error, if error there was, did not significantly affect defendant’s ability to present a defense, it did not violate any of defendant’s rights under the federal Constitution. B.

Evidence of Knife-scraping Tests During the guilt phase, prosecution witness Debbie Madden, a criminalist employed by the San Francisco Police Department Crime Laboratory, testified that she scraped a dried stain from a knife that defendant was carrying when he was arrested. She determined that the stain was human blood and, using electrophoretic multisystem testing, found that it contained genetic markers consistent with the blood of victim Pedersen and inconsistent with defendant’s blood.

Defendant contends that the trial court erred in denying a timely defense motion to exclude this evidence, that its exclusion was required both by state evidence law and by the due process clause of the Fourteenth Amendment to the United States Constitution, and that failure to exclude the evidence renders the resulting death judgment so unreliable as to constitute cruel and unusual punishment in violation of the Eighth Amendment to the federal Constitution. We reject this contention and each of its parts. In People v.

Kelly (1976) 17 Cal.3d 24 [130 Cal.Rptr. 144, 549 P.2d 1240] (Kelly), this court held that evidence obtained through a new scientific technique may be admitted only after its reliability has been established under a three-pronged test.

The first prong requires proof that the technique is generally accepted as reliable in the relevant scientific community. (Id. at p. 30.) The second prong requires proof that the witness testifying about the technique and its application is a properly qualified expert on the subject. (Ibid.) The third prong requires proof that the person performing the test in the particular case used correct scientific procedures. (Ibid.) This court further held that proof of a technique’s general acceptance in the relevant scientific community would no longer be necessary once a published appellate decision had affirmed a trial court ruling admitting evidence obtained by that scientific technique, “at least until new evidence is presented reflecting a change in the attitude of the scientific community.” (Id. at p. 32.) Until 1993, this rule was generally known in this state as the Kelly-Frye rule because this court in Kelly had relied on the reasoning of a federal appellate court decision, Frye v.

United States (D.C. Cir. 1923) 293 Fed. 1013 (Frye). In 1993, the United States Supreme Court held that the Federal Rules of Evidence had superseded Frye (Daubert v. Merrell Dow Pharmaceuticals, Inc. (1993) 509 U.S. 579, 587 [113 S.Ct. 2786, 2793-2794, 125 L.Ed.2d 469]), and our state law rule is now referred to simply as the Kelly test or rule. (People v.

Soto (1999) 21 Cal.4th 512, 515, fn. 3 [88 Cal.Rptr.2d 34, 981 P.2d 958].) During jury selection, the defense brought a motion objecting “to the introduction of serological test results obtained by use of the Multisystem on Kelly-Frye grounds.” In the moving papers, the defense acknowledged that a published appellate decision—People v. Morris (1988) 199 Cal.App.3d 377 [245 Cal.Rptr. 52] (Morris)—had affirmed a trial court ruling that electrophoretic multisystem testing of bloodstains is generally accepted in the relevant scientific community.

The defense argued, however, that Morris was “not controlling,” that it was “fundamentally flawed,” that it did not decide whether multisystem results for the genetic markers esterase D (EsD) and phosphoglucomutase (PGM) were generally accepted as reliable, and that new evidence reflected a change in the attitude of the scientific community. In support of these arguments, the defense submitted more than 1800 pages of exhibits.

The prosecution submitted a written response objecting to a “full-blown Kelly-Frye hearing” and arguing that the trial court should not receive evidence on whether the technique of electrophoretic multisystem testing had been generally accepted in the scientific community. The defense submitted a reply to the prosecution’s response.

After reading the papers submitted by the parties and hearing argument from counsel, the trial court scheduled an evidentiary hearing on the defense motion but limited the scope of that hearing to the third Kelly prong, which was, in the court’s words, “whether the prosecution can establish in this case that these particular bloodstains were validly and reliably preserved and analyzed.” The Kelly evidentiary hearing began on October 22, 1990, and ended on December 5, 1990. Seven witnesses testified over the course of 16 court days.

After hearing additional argument from counsel, the trial court denied the defense motion and ruled that evidence of the blood test results was admissible. Defendant argues, first, that evidence received at the hearing established that electrophoretic multisystem testing of blood is not a reliable or valid methodology for identifying the genetic markers EsD and PGM.

Regarding EsD, defendant argues that the evidence showed that a multisystem reading of EsD type 2-1 (the type found on the bloodstain taken from the knife) produces a “false match,” or a “false positive,” 16 percent of the time, and for this reason electrophoretic multisystem testing of blood does not produce reliable or valid results for EsD type 2-1. We find the argument unpersuasive. Under the Kelly test, the admissibility of evidence obtained by use of a scientific technique does not depend upon proof to the satisfaction of a court that the technique is scientifically reliable or valid. (People v.

Soto, supra, 21 Cal.4th at p. 519.) Because courts are ill suited to make such determinations, admissibility depends upon whether the technique is generally accepted as reliable in the relevant scientific community. Because there was a published appellate decision holding that electrophoretic multisystem testing of blood was generally accepted as reliable in the relevant scientific community (Morris, supra, 199 Cal.App.3d 377; see also People v. Hart (1999) 20 Cal.4th 546, 635 [85 Cal.Rptr.2d 132, 976 P.2d 683]; People v. Wash (1993) 6 Cal.4th 215, 242 [24 Cal.Rptr.2d 421, 861 P.2d 1107]; People v.

Fierro (1991) 1 Cal.4th 173, 214 [3 Cal.Rptr.2d 426, 821 P.2d 1302]; People v. Smith (1989) 215 Cal.App.3d 19, 26 [263 Cal.Rptr. 678]), defendant could challenge the scientific validity of the technique only by presenting “new evidence . . . reflecting a change in the attitude of the scientific community.” (Kelly, supra, 17 Cal.3d at p. 32.) Defendant did not present such evidence.

Therefore, the only issue before the trial court at the evidentiary hearing was whether the proposed evidence satisfied the third Kelly prong— whether the person who performed the test used correct scientific procedures. (Id. at p. 30.) Defendant argues, however, that regardless of the Kelly rule, the trial court should have excluded the electrophoretic multisystem test results under the general evidence rules for expert testimony or under the federal Constitution’s due process clause or its prohibition against cruel and unusual punishment (U.S. Const., 8th & 14th Amends.).

Because defendant did not object on those grounds in the trial court, they are not preserved for appellate review. (Evid. Code, § 353, subd. (a).) Moreover, even assuming that issues about the scientific validity of electrophoretic multisystem testing of blood are properly before us, we find defendant’s claim—that as applied to EsD type 2-1 this testing produces a “false match,” or a “false positive,” 16 percent of the time—to be a substantial distortion or mischaracterization of the evidence.

What the evidence showed was that electrophoretic multisystem testing does not distinguish EsD type 2-1 from EsD type 5-1, in that both of these blood types produce exactly the same band pattern on a multisystem run. The evidence showed that in the White population, 84 percent of the occurrences of this band pattern are type 2-1 and only 16 percent are type 5-1. Although electrophoretic multisystem testing cannot distinguish these EsD types from each other, it does reliably and consistently distinguish them from EsD types 1 and 2.

Because EsD type 5-1 is significantly less common than type 2-1, a positive result for these two types is generally referred to as a type 2-1 result, although it might more accurately be described as a type 2-1 or 5-1 result. Here, Madden’s electrophoretic multisystem testing of the bloodstain on the knife showed that the blood was either EsD type 2-1 or EsD type 5-1 and not any other type. This result eliminated defendant as a possible donor, because he is EsD type 1. It did not eliminate victim Pedersen because he was also EsD type 2-1 or 5-1.

The inability of electrophoretic multisystem testing to distinguish EsD types 2-1 and 5-1 from each other does not affect the scientific validity of these results. Defendant makes a similar, and similarly unpersuasive, argument regarding the genetic marker PGM. With a single multisystem run, it is possible to distinguish PGM into three types: 1, 2, and 2-1. With an additional run or by using a different technique, it is possible to further refine the PGM finding to discriminate among 10 PGM subtypes. (See People v.

Kaurish (1990) 52 Cal.3d 648, 672, fn. 2 [276 Cal.Rptr. 788, 802 P.2d 278].) Here, Madden testified that because of the small quantity of the stain, she was only able to perform a single multisystem run, and the band pattern on that run indicated a PGM type 1, which was consistent with the blood of both defendant and victim Pedersen. The multisystem’s inability to distinguish PGM subtypes on a single run does not affect the scientific validity of these results; it merely affects their weight or significance. In

summary, the inability of electrophoretic multisystem testing to distinguish EsD types 2-1 and 5-1 from each other, and its inability to distinguish PGM subtypes does not affect the scientific validity of the test results, nor does it provide any basis to question the accuracy of Madden’s testimony at trial that the blood on the knife was consistent with Pedersen’s blood and with the blood of 13 percent of the White population, but was inconsistent with defendant’s blood. Next, defendant challenges the reliability of Madden’s testimony that the stain on the knife was human blood.

To determine whether the stain was human blood, Madden used a test called the Ouchterlony species test. Defendant claims that the trial court should have excluded this testimony under the third prong of the Kelly test because the defense demonstrated, during the Kelly hearing, that Madden did not use correct scientific procedures in performing the Ouchterlony species test.

In particular, defendant faults Madden for not using a substrate control by simultaneously testing the unstained portion of the knife and also for reading the result after only four hours rather than allowing the plate on which the test was performed to develop overnight. We question whether defendant has properly preserved a Kelly objection to the Ouchterlony species test. His written motion objected to “introduction of serological test results obtained by use of the Multisystem . . . .” It is not clear that the objection included also the Ouchterlony species test.

In any event, assuming that the validity of the procedures used in performing the Ouchterlony species test was before the trial court under the third prong of the Kelly test, we find no error in the trial court’s ruling. The evidence on whether Madden used correct scientific procedures was in conflict. Defense witnesses Patricia L. Zajac and Mary Elizabeth Reynolds testified that Madden should have used a negative control and should have allowed the testing plate to develop for 24 hours.

On the other hand, Gary Alan Sims, whom the defense retained to observe the testing, testified that after observing the Ouchterlony species testing he formed the opinion that the stain was human blood, although his opinion would have been stronger if a negative control had been used. And Edward Thomas Blake testified that if a clear reaction appeared, an Ouchterlony species test result could be read after three or four hours, and that negative controls were not essential when testing a stain on a knife. The trial court resolved this conflict in the testimony by ruling in the prosecution’s favor.

We infer from the ruling a finding by the trial court that Madden used correct scientific procedures for the Ouchterlony species test. Because the court’s implied finding is supported by substantial evidence, defendant’s challenge does not succeed. C. Expert Testimony About Knife-scraping Tests As mentioned in discussing the previous contention, Debbie Madden, a criminalist employed by the San Francisco Police Department Crime Laboratory, scraped a dried stain from a knife that defendant was carrying when he was arrested.

Using certain forensic testing procedures, she determined that the stain was human blood and that it contained genetic markers consistent with the blood of victim Pedersen and inconsistent with defendant’s blood. During jury selection, the defense brought a motion objecting to evidence of the testing and results.

At the hearing on defendant’s motion, Madden testified that after scraping the dried stain material from the knife, she determined that the amount of material was insufficient to perform more than one typing test, and that she then notified the district attorney’s office of this determination and suggested that defense counsel be notified so the defense could have its own expert observe her testing of the dried stain material and collaborate with her in that testing.

The defense objected on the ground of attorney-client privilege to any further reference to a defense expert being present during the testing of the dried stain material. The trial court deferred its ruling on the objection. Later, the prosecution announced its intention to call the defense expert, Gary Alan Sims, to testify at the Kelly hearing. Invoking the attorney-client and work product privileges, the defense objected and requested an in camera hearing out of the prosecutor’s presence to discuss confidential communications. The court agreed to hold an in camera hearing on the privilege issues.

During that hearing, Sims testified that while he was employed as a criminalist at a private forensic laboratory the defense had hired him as a consultant with the understanding that any reports he prepared would be communicated to the defense only and not to the prosecution. He was to monitor and observe the work of Debbie Madden in testing the dried stain material to make sure the tests were being done properly. After this in camera hearing, the trial court denied the defense motion to exclude Sims’s testimony.

Sims then testified at the Kelly hearing about his participation in the testing of the dried stain material. When Madden explained to him the tests she proposed to run, he agreed that they were appropriate. For the multisystem run, he actually placed the samples on the gel. After Madden read the results of the tests, Sims independently read the results and, because he did not disagree with Madden’s readings, he initialed her findings in the bench notes. Neither side called Sims as a witness to testify at the trial.

Sims’s name was first mentioned at the trial during cross-examination of prosecution witness Debbie Madden, who testified, in response to defense counsel’s questions, that Sims was someone who had participated in the testing of the dried stain material but who was “not a member of [Madden’s] crime lab.” In cross-examining Madden, defense counsel used a sketch that Sims had drawn and attempted, without success, to introduce Sims’s prior testimony. On redirect, Madden testified, without objection, that Sims was present during the testing at the request of defense counsel.

She also testified that Sims had placed his initials on her bench notes for the testing, and that ordinarily this indicates agreement with the readings of the results. To cast doubt on the reliability of Madden’s conclusions, the defense called as an expert witness Mary Elizabeth Reynolds, who was the assistant manager of a hospital’s clinical serology laboratory but who, unlike Sims, lacked experience in forensic serology. On direct examination, defense counsel asked her to consider a drawing that Sims had prepared showing certain test results.

On cross-examination, she testified that Sims was a criminalist whom the defense had hired to observe Madden performing the testing on the knife stain, and that he had testified to an opinion that the knife stain was human blood. During argument to the jury at the guilt phase, the prosecutor urged the jury, in assessing the reliability of the dried stain test results, to consider the failure of the defense to call Sims, the expert the defense had hired to collaborate in that testing.

Defendant now contends that the trial court erred in denying the defense motion to exclude all evidence of Sims’s participation in the dried stain testing, and that the court’s ruling violated the attorney-client privilege and his rights under the state and federal Constitutions to due process of law and to the effective assistance of counsel. We reject the claim. Defendant relies on People v. Meredith (1981) 29 Cal.3d 682 [175 Cal.Rptr. 612, 631 P.2d 46]. There, a defendant charged with murder and robbery told his attorney that he had placed the victim’s wallet in a trash can behind his own residence.

The attorney sent an investigator to retrieve the wallet and, after examining it, turned it over to the police. At trial, the prosecution called the defense investigator as a witness to testify about the location where he found the wallet, but the prosecution did not attempt to introduce evidence about how the investigator came to look there. On the appeal from his resulting conviction, the defendant argued that admission of evidence about the location where the investigator found the wallet violated the attorney-client privilege.

This court held that “an observation by defense counsel or his investigator, which is the product of a privileged communication, may not be admitted unless the defense by altering or removing physical evidence has precluded the prosecution from making that same observation.” (Id. at p. 686.) Because the investigator’s removal of the wallet “frustrated any possibility that the police might later discover it in the trash can,” the evidence was properly admitted. (Id. at p. 687.) Defendant argues that under the rule declared in People v.

Meredith, supra, 29 Cal.3d 682, the trial court should not have admitted evidence of Sims’s collaboration in the testing of the dried stain. We disagree. Nothing in the record shows that any of Sims’s observations during the testing were the product of a privileged communication.

Defendant points to an offer of proof by defense counsel during the hearing in chambers to the effect that defendant had told counsel that the stain on the knife was not Pedersen’s blood but that it could be either human blood (because various persons had used the knife for martial arts exercises, during which they might have cut themselves), or animal blood (because defendant had used the knife to cut meat for cooking).

Although this was evidence of a privileged communication between defendant and counsel, there was no evidence that counsel disclosed any of this communication to Sims or that Sims in any way relied upon the communication, or upon any information derived from the communication, when he collaborated with Madden in the testing of the dried stain material. Neither the knife itself nor the bloodstain on the knife was discovered as a result of any privileged communication.

Because there is no evidence that Sims’s observations during the testing or his opinions concerning the validity of the testing were the product of a privileged communication, admission of Sims’s testimony and other evidence concerning his role in the testing of the dried stain material did not violate defendant’s attorney-client privilege. Defendant’s reliance on Prince v. Superior Court (1992) 8 Cal.App.4th 1176 [10 Cal.Rptr.2d 855] is equally misplaced. There, police investigators at a murder scene collected a semen stain from a comforter and two vaginal swabs from the victim’s corpse.

A prosecution criminalist divided the stain from the comforter into three parts. He sent one part to the Federal Bureau of Investigation, which reported the sample insufficient for matching purposes. He sent the second part to a private laboratory (Cellmark), which performed DNA analysis using the RFLP method and reported that the sample matched the DNA profile of the defendant.

The trial court ordered that the third part of the semen stain from the comforter be tested by the RFLP method, that the defendant could select the testing facility subject to the prosecution’s consent, and that all reports of these test results would be available to both the defense and the prosecution.

The trial court ordered that the prosecution and the defense each be given one of the vaginal swabs for DNA testing using the PCR method and that each party would be permitted to observe both tests and receive reports of both tests. (Id. at pp. 1178-1179.) The defendant petitioned the Court of Appeal for a writ of mandate. He did not challenge the ruling concerning the stain on the comforter, but he did challenge the ruling on the vaginal swabs insofar as it permitted the prosecution to observe the testing of the swab assigned to the defense and to obtain the results of that testing.

The Court of Appeal agreed that this portion of the trial court’s order deprived the defendant of the effective assistance of counsel. The Court of Appeal explained: “While it is true the goal of the judicial process is to find the truth, allowing the defense to conduct an independent test of the DNA will not unfairly prejudice the People or result in injustice. If the test matches [the defendant] with the crime, defense counsel will not call the expert and the case will proceed on evidence already possessed by the People as if the defense test had not been made.

The People will have, at least, four semen test samples. If the defense test excludes [the defendant], the tester will surely testify and the defense will have to disclose his or her identity and provide any report to the prosecution.” (Prince v. Superior Court, supra, 8 Cal.App.4th at p. 1180.) Here, there was not a sufficient quantity of material for independent testing by the defense and the prosecution. There was a single series of tests on the limited sample witnessed by two individuals, Madden and Sims. (See People v.

Cooper (1991) 53 Cal.3d 771, 814-816 [281 Cal.Rptr. 90, 809 P.2d 865].) When the defense questioned the validity of the test results, based on alleged inadequacy in Madden’s documentation of the test procedures and the results obtained, the prosecution had a substantial need for Sims’s testimony as the only other percipient witness to the tests. The prosecutor did not question Sims about any reports he may have submitted to defense counsel and focused mainly upon what Sims had seen rather than upon the opinions he may have formed.

Although the prosecution did question Sims at the Kelly hearing about his initials on the lab notes, the act of initialing the lab notes was not confidential and thus not within the attorney-client or work product privileges. The trial court’s ruling permitting the prosecution to call Sims as a witness at the Kelly hearing did not violate defendant’s right to the effective assistance of counsel. Finally, defendant argues that the jury should not have been told that the defense had retained Sims as an expert because this information lacked relevance.

On the contrary, information that a party retained an expert is relevant to the possible bias of that expert. (People v. Coddington (2000) 23 Cal.4th 529, 617 [97 Cal.Rptr.2d 528, 2 P.3d 1081], overruled on another ground in Price v. Superior Court (2001) 25 Cal.4th 1046, 1069, fn. 13 [108 Cal.Rptr.2d 409, 25 P.3d 618].) Although Sims did not testify before the jury, and thus his credibility was never directly placed in issue, defense cross-examination elicited testimony from Madden that Sims was present during the testing of the dried stain material.

In deciding the significance of the failure of either party to call Sims as a witness, the jury could properly consider the information that the defense had hired Sims to observe the testing. (See People v. Wash, supra, 6 Cal.4th at pp. 262-263 [prosecutor may comment on defense’s failure to call logical witness].) D. Sufficiency of the Evidence of Robbery Defendant contends the evidence at trial was insufficient to support the verdict finding him guilty of robbery.

In particular, he argues that there was insufficient evidence that property was taken from victim Pedersen’s immediate presence by force or fear, and he asserts that a conviction based on insufficient evidence violates his right to due process under both the federal and state Constitutions (U.S. Const., 14th Amend.; Cal. Const., art.

I, § 15). “To determine the sufficiency of the evidence to support a conviction, an appellate court reviews the entire record in the light most favorable to the prosecution to determine whether it contains evidence that is reasonable, credible, and of solid value, from which a rational trier of fact could find the defendant guilty beyond a reasonable doubt.” (People v.

Kipp (2001) 26 Cal.4th 1100, 1128 [113 Cal.Rptr.2d 27, 33 P.3d 450].) From evidence that a defendant killed another person and at the time of the killing took substantial property from that person, a jury ordinarily may reasonably infer that the defendant killed the victim to accomplish the taking and thus committed the offense of robbery. (People v. Hughes (2002) 27 Cal.4th 287, 357 [116 Cal.Rptr.2d 401, 39 P.3d 432]; People v. Kipp, supra, 26 Cal.4th at p. 1128; People v.

Turner (1990) 50 Cal.3d 668, 688 [268 Cal.Rptr. 706, 789 P.2d 887].) Here, the prosecution presented evidence that defendant killed Pedersen and at the time of the killing took Pedersen’s binoculars, wallet, bracelet, cuff links, camera, coins, and wristwatch. This evidence supports an inference that defendant robbed Pedersen, and it constitutes substantial evidence supporting the robbery verdict.

Contrary to defendant’s arguments, the failure of the evidence to conclusively rule out various scenarios under which defendant might not be guilty of robbery does not render the evidence insufficient to support the robbery verdict. (See People v. Hill (1998) 17 Cal.4th 800, 849 [72 Cal.Rptr.2d 656, 952 P.2d 673] [court’s opinion that evidence could be reconciled with a finding of innocence, or of guilt of a lesser crime, does not warrant reversal of judgment].) E.

Sufficiency of the Evidence of a Killing During Robbery Defendant contends that even if, as we have concluded, the trial evidence is sufficient to support the verdict finding him guilty of robbery, it is not sufficient to support the special circumstance finding that the murder occurred in the commission of the robbery. More particularly, he argues that the guilt phase evidence is insufficient to establish that the robbery was not merely incidental to the killing in the sense that defendant’s “primary criminal goal” was to kill rather than to steal.

To prove a felony-murder special circumstance like murder in the commission of a robbery, “the prosecution must show that the defendant had an independent purpose for the commission of the felony, that is, the commission of the felony was not merely incidental to an intended murder.” (People v. Mendoza (2000) 24 Cal.4th 130, 182 [99 Cal.Rptr.2d 485, 6 P.3d 150].) “Concurrent intent to kill and to commit an independent felony will support a felony-murder special circumstance.” (People v.

Raley (1992) 2 Cal.4th 870, 903 [8 Cal.Rptr.2d 678, 830 P.2d 712].) It is only when the underlying felony is merely incidental to the murder that the felony-murder special circumstance does not apply. (Ibid.) We find here no evidence suggesting, or requiring the jury to conclude, that defendant took Pedersen’s property merely to obtain a reminder or token of the incident (see People v. Marshall (1997) 15 Cal.4th 1, 41 [61 Cal.Rptr.2d 84, 931 P.2d 262]), to give a false impression about his actual motive for the murder, or in some other way to facilitate or conceal the killing (see People v.

Zapien (1993) 4 Cal.4th 929, 984 [17 Cal.Rptr.2d 122, 846 P.2d 704]). Nor was there substantial evidence of any motive for the murder apart from accomplishing the robbery. Rather, the jury could reasonably infer from the evidence that defendant killed Pedersen primarily and perhaps solely to facilitate the robbery, by preventing him from resisting or from alarming neighbors or others. (See People v. Turner, supra, 50 Cal.3d at p. 688.) Accordingly, we conclude that the evidence is sufficient to support the robbery-murder special circumstance. F.

Denial of Mistrial Motion James Ludlow, a police officer, testified about the circumstances of defendant’s arrest. During his testimony, the prosecutor asked: “Did you determine the present address at that time in September of 1986 of Mr. Clifford Bolden?” Ludlow answered: “Yes, I did.” The prosecutor asked: “And where was that?” Ludlow answered: “It was at the Department of Corrections parole office located at—.” The prosecutor interrupted, asking: “What I’m talking about is where was the address?” Ludlow then answered with the address where defendant was then living.

Later that day, out of the jury’s presence, the defense moved for a mistrial, arguing that Ludlow’s reference to a parole office was very prejudicial to defendant because it implied that defendant had at least one prior felony conviction for which he had served a term in state prison. The defense had known that Ludlow had testified at the preliminary hearing that he had obtained defendant’s address from his parole records and had received an assurance from the prosecutor that he had warned Ludlow not to refer to the parole office.

The prosecutor assured the court that he had so warned Ludlow on three occasions, the last being on the morning of Ludlow’s testimony, and that he was “taken by surprise” when Ludlow mentioned the parole office in his testimony, but he did not think there was sufficient prejudice to warrant a mistrial. The trial court took the motion under submission and later denied it, noting that the very brief reference was unlikely to make a lasting impression on the jury.

Defendant now contends that the trial court erred in denying the mistrial motion, and that the ruling denied him his right under the federal Constitution to due process of law (U.S. Const., 14th Amend.). We find no error, and no denial of due process, in the trial court’s ruling. A trial court should grant a mistrial only when

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