THE PEOPLE, Plaintiff and Respondent, v. KEONE WALLACE, Defendant and Appellant, 44 Cal. 4th 1032

Opinion KENNARD, J. A Fresno County jury convicted defendant Keone Wallace of the first degree murder (Pen. Code, § 187), attempted rape (§§ 664, 261, subd. (a)(2)), and attempted robbery (§§ 664, 211, former § 212.5, subd. (b)) of Hazel Hamilton, and of residential burglary (§§459 & 460). It found true special circumstance allegations of murder in the commission or attempted commission of three felonies: robbery (§ 190.2, subd. (a)(17)(A), formerly subd. (a)(17)(i)), rape (§ 190.2, subd. (a)(17)(C), formerly subd. (a)(17)(iii)), and burglary (§ 190.2, subd. (a)(17)(G), formerly subd. (a)(17)(vii)).

After a penalty trial, the jury returned a verdict of death. The trial court denied the automatic motion to modify the verdict (§ 190.4, subd. (e)) and sentenced defendant to death. This appeal is automatic. (§ 1239, subd. (b).) We affirm the judgment in its entirety. I. Facts A. Guilt Phase 1. Prosecution’s case In January 1991, Hazel C. Hamilton, an 83-year-old widow, lived alone in a house on East Madison Avenue in the City of Fresno. She had poor eyesight, wore thick-lensed glasses, and suffered from arthritis causing her to walk with a cane. Eulalia Gauss lived next door to Hamilton.

During the evening of January 21, 1991, Gauss heard loud noises coming from Hamilton’s house and went outside to investigate. She noticed that Hamilton’s back bedroom window was wide open, and she saw a man wearing dark pants and a light-colored shirt, with something covering his hands. He appeared to be breaking things inside Hamilton’s house. Gauss awakened her husband, who telephoned police. Officers arrived at the scene shortly after 10:00 p.m.

Officer Fred Manfredi could hear what sounded like furniture being moved and drawers being emptied inside the house, prompting him to radio his fellow officer, Raymond Sandoval, that the intruder might still be inside. Seeing a bent window screen on the ground outside the open bedroom window, Manfredi went to the front of the house to investigate. The front door was partially open and defendant was standing inside the doorway. Manfredi announced his presence and ordered defendant to show his hands, but defendant turned and ran through the house.

After sending a radio warning to officers watching the rear of the house, Manfredi entered through the front with two other officers. At the rear of the house, Officer Sandoval and Officer A1 Hernandez saw defendant dive out the open bedroom window. The officers ordered him to the ground, but he did not comply, so they pushed him down. Defendant struggled until Officer Sandoval subdued him using a flashlight. The officers eventually handcuffed defendant. Defendant said, “They made me do it” several times, and he warned the officers that “the other guys” were getting away.

He added that he “knew the lady” and “hoped that she didn’t die.” A white T-shirt was wrapped around defendant’s head, and he wore a beige jacket and a pair of jeans buttoned at the top only. Defendant’s belt was unfastened. He had on unlaced blue athletic shoes, and he had covered his hands with dirty, worn socks. What appeared to be bloodstains were visible on defendant’s T-shirt, socks, and shoes. Police found Hazel Hamilton lying on the floor of her home about four feet inside the front door. She was breathing but unresponsive.

Her dress was pulled up around her waist, the crotch of her underwear was tom, and her stockings were around her knees. She had several injuries to her head, throat, and shoulders, and her eyes were swollen shut. Blood was on her face and dress. Her eyeglasses and dentures were on the floor near her head. Paramedics took Hamilton to Valley Medical Center. Dr. Diane Ruschke examined Hamilton and, determining her condition to be life-threatening, had Hamilton connected to a ventilator. A brain scan revealed massive bleeding and swelling in the brain, which Ruschke attributed to trauma.

A neurosurgeon performed emergency surgery to alleviate the pressure on the brain. The next day, January 22, 1991, Ruschke performed a sexual assault examination on Hamilton, observing in the vaginal area bmising that was consistent with forceful sexual penetration and that appeared to be between 12 and 24 hours old. No semen was detected during the examination, and sexual assault kits for both defendant and Hamilton were negative for the presence of semen or sperm. On January 23, 1991, Hamilton experienced “Cushing’s response,” indicating brain herniation at the base of the skull.

She was removed from life support and died. Dr. Jerry Nelson performed an autopsy. He noted substantial blunt force trauma to Hamilton’s upper body, with injuries that included two black eyes and multiple bruises on her head, face, neck, and shoulders. The bruises on Hamilton’s neck were consistent with blunt force trauma and strangulation. Nelson determined that the cause of death was a combination of strangulation and blunt force trauma to the head, most likely caused by a fist rather than an object because of the absence of skull fractures.

Examination of the crime scene revealed that Hamilton’s house had been ransacked. Dresser and cabinet drawers had been pulled out and overturned, their contents strewn about the floor. Mattresses from two beds had been turned over, as was a sofa cushion from a sleeper sofa in the living room. Smaller items also were disturbed: A container of jewelry was overturned; contents of a wicker basket were spilled onto the floor; identification cards and miscellaneous papers from a wallet were spread about the house. An empty wallet was found in front of a loveseat in the living room.

The southwest bedroom window had been forced open, as shown by scratches on its latch and locking mechanism and the presence of paint and wood chips underneath. Defendant could have made three of the handprints and fingerprints found on the window and its frame. Police found a mountain bike in the alleyway behind Hamilton’s house. Delia Heredia, a Department of Justice criminalist, compared the athletic shoes defendant was wearing at the time of his arrest with photographs of shoe impressions taken outside murder victim Hamilton’s home.

Although Heredia could not make a positive match, she stated that defendant’s left shoe was consistent in size, sole pattern, and wear with a shoe impression near the open bedroom window by which the intruder had entered Hamilton’s house. Heredia also tested defendant’s and Hamilton’s clothing for the presence of human blood. Defendant’s right shoe, the socks worn on his hands, his jeans, T-shirt, and jacket all tested positive, with a blood type consistent with Hamilton’s.

According to Heredia, most of the blood on defendant’s clothing was transferred or smeared from the source, rather than resulting from blood spatter. Hamilton’s dress also tested positive for blood consistent with her blood type, which she shared with 5 percent of the general population. After defendant’s arrest at Hamilton’s house, Officer Sandoval transported him to Valley Medical Center and eventually to jail. Sandoval noted that although defendant’s breath smelled of alcohol, he did not appear to be intoxicated. At Valley Medical Center, Dr.

Thomas Utrecht treated defendant, observing abrasions on his forehead and scalp and bruising to the right side of his chest. When medical personnel collected defendant’s blood samples, he resisted, requiring two officers to restrain him. Defendant also resisted Officer Sandoval’s collection of defendant’s pubic hair samples, making offensive gestures and using foul language. Defendant’s blood sample tested negative for drugs but positive for alcohol, with a concentration of 0.19 percent.

Ernest Lykissa, Ph.D., the director of forensic toxicology at Pathological and Clinical Services in Fresno when the samples were tested, estimated that defendant’s maximum blood-alcohol level at the time of his arrest was 0.21 percent. According to Lykissa, a person who habitually consumes alcohol can develop a tolerance to it, thereby reducing the impairment resulting from its consumption. At the time of his arrest, defendant lived with Latasha Rice and her cousin in an apartment about one mile from, and on the same street as, murder victim Hamilton’s house.

Rice saw defendant between 11:00 a.m. and noon on the day Hamilton’s house was burglarized; he did not appear to be intoxicated or under the influence of drugs. When defendant’s mother, Sharon Sperling, visited him in jail, he said he did not harm Hamilton and had been beaten by police officers. Sperling later met with Deputy District Attorney Gary Hoff. At the time of trial, Sperling could not recall what she had told Hoff, but she believed she told him that defendant had been drinking beer and watching television at a friend’s house on the night Hamilton was attacked.

Hoff testified that Sperling told him defendant had consumed beer at a friend’s house, and when defendant was riding his bike home, he was cut off by a police car. A second police car arrived, and defendant was beaten by police officers. Defendant denied being at murder victim Hamilton’s house or assaulting her. 2. Defense case Defendant testified in his own behalf at trial. He said that on January 21, 1991, he awoke around 9:00 a.m. and around noon bought two 40-ounce cans of malt liquor, which he drank at home.

Around 2:00 p.m., defendant rode his bicycle to the home of his friend Herbert Johnson, where defendant drank three or four 16-ounce cans of malt liquor. Defendant and Johnson also shared a pint of brandy. When defendant left Johnson’s home around 4:00 or 5:00 p.m., he was drunk. Defendant went to the apartment of another friend, Floyd Ray, where he drank a six-pack of malt liquor. Defendant also drank two or three bottles of Cisco, a high-alcohol wine. Around 10:00 p.m., defendant left Ray’s apartment on his bicycle.

In front of Ray’s apartment complex, defendant happened upon three acquaintances he knew as Andrew, “Renn,” and “Baby.” After defendant drank more beer with the three men, they offered to buy him a drink. Defendant rode in the bed of Renn’s truck with his bicycle. Because it was cold, defendant, who was wearing a jacket, removed his T-shirt and wrapped it around his head, and took his socks off his feet and put them on his hands. Defendant believed Renn was driving to a liquor store; instead, the truck stopped in the alley behind Hamilton’s house.

Defendant stayed in the truck bed while Andrew, Renn, and Baby went into Hamilton’s backyard. Andrew returned to the truck and told defendant to come with him. The two then climbed through Hamilton’s bedroom window. According to defendant, his purpose in entering the house was to get a drink. Defendant found himself in a wrecked bedroom and saw Hamilton on the floor in the living room. When Hamilton reached for a telephone, Renn punched and kicked her, causing her to fall over and hit her head on the floor. Defendant was shocked and confused by what was happening.

When police arrived at Hamilton’s house, Andrew, Renn, and Baby were gone. Seeing the police, defendant panicked and dove through the bedroom window. Defendant told the police, “they’re getting away” and “they made me do it,” referring to his three acquaintances. Defendant admitted he had lied when he told police that he knew Hamilton. Defendant also admitted directing abusive language towards police, explaining that police had killed two of his friends and a cousin and twice had beaten his younger brother for no reason.

Defendant resisted efforts by police to collect physical evidence at the hospital, he said, because one officer ridiculed defendant’s long hair. Defendant denied ransacking or taking anything from Hamilton’s house, and he denied striking Hamilton or attempting to rape her. Valerie Hurd, defendant’s cousin, testified that defendant habitually drank alcohol, including Cisco and hard liquor, but he preferred malt liquor. Ruby Parks, girlfriend of Floyd Ray, testified that defendant was a heavy drinker but she had never known him to be violent when intoxicated.

Defense witnesses Herbert Johnson and Floyd Ray confirmed defendant’s account of his drinking with them earlier in the day of Hamilton’s attack. According to Ray, defendant left Ray’s house on his bicycle around 10:00 p.m. Ray knew defendant to be a heavy drinker who drank daily, usually to the point of intoxication, but he denied that defendant ever became violent when drunk. Dr.

Alan Barbour, a licensed clinical laboratory analyst, testified that he once was the forensic alcohol laboratory supervisor at Pathological and Clinical Services in Fresno, where he was familiar with prosecution witness Ernest Lykissa’s reputation. In Barbour’s opinion, Lykissa was not always truthful. Barbour disagreed with Lykissa that there was any correlation between defendant’s pattern of drinking and his blood-alcohol test result. Barbour characterized defendant’s 0.19-percent blood-alcohol level when the blood was drawn and tested as a “reliable” result. Dr.

Stephen Pittel, a psychologist familiar in training and experience with substance abuse, estimated that defendant’s blood-alcohol level would have been between 0.21 and 0.23 percent at the time of the attack on Hamilton. Pittel testified that defendant’s tested blood-alcohol level of 0.19 percent indicated severe impairment, and that his impairment would have been greater at the time of arrest. 3. Prosecution rebuttal Dr.

Howard Terrell, a psychiatrist familiar with alcohol abuse, testified that assessment of a person’s alcohol intoxication level should not be based solely on blood-alcohol level, but also on behavior and demeanor. Terrell added that exclusive reliance on blood-alcohol level fails to account for alcohol tolerance. According to Terrell, a person with a high tolerance for alcohol may not be intoxicated even with a blood-alcohol level between 0.19 and 0.21 percent. Based on his review of materials provided by the prosecutor, Terrell concluded that defendant had displayed such an alcohol tolerance. 4.

Defense surrebuttal Stanley Dorance, a former Department of Justice criminalist, testified as an expert on alcohol impairment that although a person with alcohol tolerance may not show as many signs of intoxication as a person without alcohol tolerance, the person with alcohol tolerance nonetheless would be affected by the alcohol. B. Penalty Phase 1. Prosecution case in aggravation The prosecution presented evidence of defendant’s commission of prior incidents of violent behavior.

The first of these took place on April 7, 1989, in Redondo Beach, Los Angeles County, when defendant brandished a .32-caliber pistol at Marcus Robinson, threatening to shoot him. After being arrested and while being taken to jail in the backseat of a patrol car, defendant kicked out one of the car’s rear door windows, and kicked an officer who tried to remove him from the car. Two other violent incidents took place in the Fresno County jail while defendant was awaiting trial on this case.

On October 3, 1991, through a surveillance camera monitor, Officer Lorrie Camplin saw an inmate wearing a white T-shirt under his jail jumpsuit strike another inmate inside the jail elevator. When the elevator came to a stop, defendant was found to be the only inmate wearing a white T-shirt, and he had abrasions on his knuckles. On December 3, 1992, Officer David Martinez, while watching a surveillance camera monitor, saw an inmate in an elevator striking another inmate. Six officers met the elevator when it stopped on the fifth floor.

Defendant was among the eight inmates inside, four of whom were sent to the infirmary. The prosecution also presented evidence that Officer Lawrence Daluz found contraband—a loose razor blade and a jail-issued razor with half of the plastic molding removed—in defendant’s jail cell. Daluz testified that razors could be used as weapons. The parties also stipulated to defendant’s February 1, 1989, felony conviction in Los Angeles County for possession of cocaine for sale. (Health & Saf. Code, § 11351.) 2.

Defense case in mitigation Andress Yancy, who was serving a 19-year state prison term for robbery, testified that he had been a Fresno County jail inmate and was with defendant during the jail elevator incident on December 3, 1992. Yancy denied being struck by defendant. He also testified that jail inmates typically used razor blades mounted on combs to cut their hair. Some of defendant’s family members and friends testified about his background and upbringing. His mother, Sharon Sperling, married Harold Autrey when defendant was two years old. During the marriage, Sperling started using drugs.

Sperling and Autrey separated when defendant was about 10. For the next several years, Sperling stole merchandise from retail businesses and used cocaine. Later, she was sent to state prison. Defendant went to live with his grandparents, who ran a garment business. While there, he lived a normal life, attending church, going fishing, and enjoying holiday celebrations. Defendant also spent time with his grandmother’s sister. When defendant was 14, his grandfather became ill, requiring dialysis and eventually the amputation of a leg. At age 16, defendant moved in with a friend.

Shortly thereafter, defendant was shot and seriously injured, resulting in his use of a colostomy bag for a month. A friend, Victor Blackmon, testified that defendant drank all day, every day, and often acted crazy and complained that his “brain” hurt. Defendant’s cousin, Valerie Hurd, said that defendant drank malt liquor, starting early each morning. Latasha Rice testified that defendant would tell her he sometimes could not remember things that had happened when he had been drinking. A clinical psychologist, Gretchen White, interviewed defendant and some members of his family.

She concluded that defendant had experienced “stressors” from personal losses, such as not knowing his biological father, separation from his stepfather, and his mother’s rejection when he went to live with his grandparents. White said that defendant had suffered chronic depression since adolescence. She attributed his use of alcohol to his poor coping skills. A second clinical psychologist, Garry Bredefeld, testified to the results of several psychological and neuropsychological tests he gave defendant. Defendant functioned “within the borderline range of intelligence,” having an overall IQ of 77.

According to Bredefeld, defendant exhibited low self-esteem, a “generalized cerebral inefficiency,” and signs of being a high risk for suicide. 3. Prosecution rebuttal Clinical Psychologist Michael Thackrey questioned the appropriateness of the tests Dr. Bredefeld administered to defendant, expressing the view that defendant’s IQ of 77 was within the normal range. Dr. Howard Terrell testified that he had tried to conduct a psychiatric examination of defendant, but that defendant refused to participate. In Dr.

Terrell’s view, the evidence on which the defense experts had relied was insufficient to conclude that defendant suffered from major depression, and defendant’s complaint that his “brain hurt” likely was merely defendant’s description of a hangover. 4. Defense surrebuttal Recalled by the defense, Dr. Bredefeld testified that his testing of defendant was accurate and reliable, and that there is no IQ test geared strictly toward African-Americans, although experts in the field debate whether IQ test results are affected by race. II. Pretrial and Jury Selection Issues A.

Alleged Improper Shackling During a pretrial hearing, defense counsel inquired about the procedure for restraining defendant in the courtroom. The courtroom bailiff, Deputy Sheriff Kevin Fitzgerald, told the trial court that defendant would be shackled to a cable installed under the defense counsel table, that the cable would be hidden by a curtain, and that defendant would be seated before the jury entered the courtroom.

Defense counsel objected to restraining defendant, citing “psychological reason[s],” and argued that shackling a capital defendant to the floor is inappropriate unless that defendant has a history of escape attempts. Deputy Fitzgerald told the court that defendant had a history of noncooperation in the county jail, and that the list of his rules violations took up three pages. To allow defense counsel to review this document, the court deferred a decision on the question of shackling. At the next court hearing, Deputy Sheriff Victor Wisemer of the Court Services Unit gave three reasons for restraining defendant.

First, the “type of case and the gravity of the outcome” warranted extra security. Second, if defendant were not restrained, at least four deputies would need to be in the courtroom to guard him. Third, and the “main reason” for restraining defendant, was his conduct in jail. According to Deputy Wisemer, defendant had 16 rules violations in roughly two years. Five of these were for fighting with other inmates and one was for possessing a sharp instrument.

Defense counsel renewed the objection, but the trial court found a manifest need to restrain defendant, based on the nature of the charges and the number of rules violations. The court indicated that the leg restraints would be concealed by the curtain and therefore not visible to the jury, adding that defendant would be seated before any juror came into the courtroom. Nothing in the record suggests that the jurors knew defendant was restrained. Defendant now contends the trial court abused its discretion by ordering that he remain shackled throughout his trial.

According to defendant, the error violated Ms rigMs under

section 688, the state Constitution, and the Fifth, Sixth, Eighth, and Fourteenth Amendments to the federal Constitution. “[A] defendant cannot be subjected to physical restraints of any kind in the courtroom while in the jury’s presence, unless there is a showing of a mamfest need for such restraints.” (People v.

Duran (1976) 16 Cal.3d 282, 290-291 [127 Cal.Rptr. 618, 545 P.2d 1322], fn. omitted.) But we will not overturn a trial court’s decision to restrain a defendant absent “a showing of a manifest abuse of discretion.” (Id. at p. 293, fn. 12.) We have said that a “ 1 “ ‘[mjamfest need’ arises only” ’ ” when the defendant has been unruly, has “ ‘ “announced [an] intention to escape,” ’ ” or when the evidence shows the defendant would likely “ ‘ “ ‘disrupt the judicial process’ ” ’ ” if left unrestrained. (People v.

Seaton (2001) 26 Cal.4th 598, 651 [110 Cal.Rptr.2d 441, 28 P.3d 175].) “ ‘ “ ‘The imposition of physical restraints in the absence of a record showing of violence or a tMeat of violence or other nonconforming conduct will be deemed to constitute an abuse of discretion.’ ” ’ ” (Ibid.) Here, the record shows defendant had been cited for many rules violations while awaiting trial in the county jail, which included five jailhouse fights and possession of illegal razors. This evidence was sufficient to support the trial court’s decision to restrain defendant. (See, e.g., People v.

Combs (2004) 34 Cal.4th 821, 838 [22 Cal.Rptr.3d 61, 101 P.3d 1007] [the trial court did not abuse its discretion in ordering the defendant restrained where the evidence showed that the defendant had possessed two shanks in jail and threatened jail deputies].) Further, even assuming the trial court abused its discretion, defendant suffered no possible prejudice.

Determining whether or not the erroneous imposition of restraints on a defendant was prejudicial requires us to consider the “possible prejudice in the minds of the jurors, the affront to human dignity, the disrespect for the entire judicial system which is incident to unjustifiable use of physical restraints, as well as the effect such restraints have upon a defendant’s decision to take the stand.” (People v. Duran, supra, 16 Cal.3d at p. 290.) The first and last of these considerations are the most significant. (People v.

Anderson (2001) 25 Cal.4th 543, 596 [106 Cal.Rptr.2d 575, 22 P.3d 347].) Defendant admits the record contains no indication that the jurors knew he was restrained or that they were otherwise prejudiced against him. Defendant urges us, however, to depart from the prejudice analysis we have applied for over 30 years, and to focus instead on the psychological effects on a defendant—specifically, mental impairment, physical pain, and obstruction of communication with defense counsel—that result from the imposition of restraints.

Even if we were inclined to do so, defendant points to no evidence that he suffered from any such adverse effects. Nor does defendant point us to any evidence in the record that the restraint influenced his decisions to testify at the guilt phase and not to testify at the penalty phase. Indeed, defendant acknowledges that the record is silent on this point. Thus, defendant cannot demonstrate prejudice resulting from his restraint. B. Defendant’s Right to Be Present Twice during trial, the trial court conducted proceedings in defendant’s absence.

First, on February 24, 1993, defendant was not present in court when the prosecutor requested that William Darlington, Hamilton’s stepgrandson and a prosecution witness, be allowed to attend the trial. After hearing briefly from defense counsel and the prosecutor, the court stated it would not continue until defendant was present. Thereafter, bailiffs brought defendant into the courtroom. The court then heard further argument and ultimately granted the prosecutor’s request to have Darlington attend the duration of the trial.

The second incident occurred on March 1, 1993, when the trial court stated that an alternate juror was upset. The court had invited the alternate juror into chambers for an ex parte discussion; she informed the court that she was distressed because of her recent separation from her husband. The court said the alternate juror indicated she was able to continue, and that if she felt she could not proceed, she would immediately inform the court. The court then offered counsel the opportunity to question the alternate juror, but both sides declined.

Two days later, the alternate juror concluded she was unable to proceed, and she was excused upon joint stipulation. Defendant now contends his right to be present in accordance with state statutory law and the state and federal Constitutions was violated when the trial court conducted these proceedings in his absence. The Attorney General responds that defendant failed to preserve the issue. Defendant replies that the forfeiture rule does not apply when a trial court meets with an alternate juror outside counsel’s presence, and that any later objection after the meeting would have been futile.

Defendant adds that his objection to the prosecutor’s motion regarding Darlington’s attendance throughout the trial was sufficient to preserve the issue of defendant’s right to be present. We need not resolve this dispute, however, because there was no violation of defendant’s right to be present. “A criminal defendant’s right to be personally present at trial is guaranteed by the Sixth and Fourteenth Amendments of the federal Constitution, as well as by

article I,

section 15 of the California Constitution and by sections 977 and 1043 of the California Penal Code. [Citations.] A defendant, however, ‘does not have a right to be present at every hearing held in the course of a trial.’ [Citation.] A defendant’s presence is required if it ‘bears a reasonable and substantial relation to his full opportunity to defend against the charges.’ [Citation.]” (People v. Hines (1997) 15 Cal.4th 997, 1038-1039 [64 Cal.Rptr.2d 594, 938 P.2d 388]; see also People v.

Rogers (2006) 39 Cal.4th 826, 855 [48 Cal.Rptr.3d 1, 141 P.3d 135].) “Sections 977 and 1043 do not require the defendant’s presence, or a written waiver, unless that standard has been met. [Citations.]” (People v. Bradford (1997) 15 Cal.4th 1229, 1357 [65 Cal.Rptr.2d 145, 939 P.2d 259].) “The defendant must show that any violation of this right resulted in prejudice or violated the defendant’s right to a fair and impartial trial. [Citation.]” (People v. Hines, supra, at p. 1039; see also People v.

Lucero (2000) 23 Cal.4th 692, 717 [97 Cal.Rptr.2d 871, 3 P.3d 248].) Here, the record shows that defendant was absent from the courtroom when the prosecutor brought up the issue of prosecution witness Darlington attending the trial. The record also shows, however, that the trial court waited until defendant was brought into court, and then resumed the hearing in defendant’s presence.

Under these circumstances, we cannot say that defendant’s brief absence from the introductory part of the hearing on the issue bore “ ‘a reasonable and substantial relation to his full opportunity to defend against the charges.’ ” (People v. Hines, supra, 15 Cal.4th at p. 1039.) We similarly find no abuse of discretion in the trial court’s brief discussion with the alternate juror. “ ‘[T]he mere occurrence of an ex parte conversation between a trial judge and a juror does not constitute a deprivation of any constitutional right.

The defense has no constitutional right to be present at every interaction between a judge and a juror, nor is there a constitutional right to have a court reporter transcribe every such communication.’ [Citation.]” (United States v. Gagnon (1985) 470 U.S. 522, 526 [84 L.Ed.2d 486, 105 S.Ct. 1482].) Defendant’s absence from the discussion between the trial court and the alternate juror in no way adversely affected “ ‘his full opportunity to defend against the charges.’ ” (People v.

Hines, supra, 15 Cal.4th at p. 1039.) Moreover, defendant has failed to explain how his attendance during either proceeding would have altered the outcome of his trial and accordingly has not demonstrated any prejudice. (Ibid.; see also People v. Lucero, supra, 23 Cal.4th at p. 717.) C. Right of Hamilton’s Stepgrandson to Attend Trial During a pretrial hearing, over defense objection, the trial court granted the prosecutor’s motion under former

section 1102.6 to allow prosecution witness William Darlington, murder victim Hamilton’s stepgrandson, to attend the trial. That former Penal Code

section provided for crime victims to be present at a criminal trial unless, in the view of the trial court, the victim’s presence “would pose a substantial risk of influencing or affecting the content of any testimony” at the trial. (Former § 1102.6, subd. (a), added by Stats. 1986, ch. 1273, § 2, p. 4448 and repealed by Stats. 1995, ch. 332, § 2, p. 1824.) The former statute defined “victim” to include “up to two members of the victim’s immediate family who are actual or potential witnesses” if the victim herself was “unable to attend” (former § 1102.6, subd. (e)), always the case with a murder victim.

Defendant now challenges the trial court’s ruling on several bases. First, defendant argues, a “stepgrandson” is not within the term “immediate family” as set forth in the statute. Second, defendant claims that Darlington’s presence allowed him to hear the prosecutor’s opening statement setting forth the prosecution’s theory of the case and also exposed him to the testimony of other witnesses, enabling Darlington to tailor his own testimony to that of those other witnesses.

Finally, defendant argues that Darlington’s constant presence in the courtroom was a silent form of improper victim-impact evidence that was not subject to cross-examination. According to defendant, allowing Darlington to attend the trial violated defendant’s rights under the Fifth, Sixth, Eighth, and Fourteenth Amendments to the federal Constitution. We review a trial court’s decision to allow a victim’s family member to attend the trial for an abuse of discretion. (People v. Griffin (2004) 33 Cal.4th 536, 573-574 [15 Cal.Rptr.3d 743, 93 P.3d 344].) We find none here. As noted earlier, former

section 1102.6 provided for an immediate family member of an unavailable crime victim to attend a trial unless that person’s presence posed a substantial risk of influencing or affecting the content of any testimony. That section, however, did not define the term “immediate family.” Nor does the legislative history reveal the intended meaning of that term.

The language of the statute itself, however, made it clear that someone in Darlington’s position had a right to attend the trial notwithstanding that he was testifying as a witness. (See former § 1102.6, subd. (e) [“[a]s used in this section, ‘victim’ means ... (2) in the event that the victim is unable to attend the trial, up to two members of the victim’s immediate family who are actual or potential witnesses” (italics added)].) Other sections of the Penal Code provide some guidance on the meaning of the term “immediate family.” For instance,

section 3605, which addresses the selection, invitation, and attendance of witnesses to an execution, defines “immediate family” as “those persons who are related by blood, adoption, or marriage, within the second degree of consanguinity or affinity.” (§ 3605, subd. (b)(2).)

Section 3043.3, which relates to

section 3043, the statute that addresses a victim’s right to appear and comment at a state prisoner’s parole eligibility hearing, defines “immediate family” as the “victim’s spouse, parent, grandparent, brother, sister, and children or grandchildren who are related by blood, marriage, or adoption.” Under both of these sections, Darlington is within the definition of “immediate family” because he was victim Hamilton’s grandchild (relation of the second degree) by marriage (affinity). There is no indication that the Legislature intended a narrower definition of “immediate family” in former

section 1102.6. Darlington’s status as a member of the victim’s immediate family however, does not end our inquiry. We must also examine the trial court’s ruling on the basis of the record of the proceedings before it when the ruling was made (People v. Griffin, supra, 33 Cal.4th at p. 574), and determine whether the trial court abused its discretion in concluding that Darlington’s presence would not pose a substantial risk that he would tailor his testimony to that of other witnesses, or that he would cause other witnesses to tailor their testimony to his.

Defendant offers no evidence that would suggest Darlington’s presence posed such a risk, and upon our independent review of the relevant portions of the record, we find none. Moreover, later events at trial do not suggest that Darlington tailored his testimony to conform to what he had learned from being present at trial, but instead show that he simply testified to matters he was likely to know based on personal knowledge. Darlington testified briefly on two occasions during the guilt phase of the trial.

During his first appearance, he testified that Hamilton married his grandfather in 1957, and that during the years immediately before her death Darlington visited Hamilton at her home, went on trips with her, and spoke with her on the phone. Through this contact, Darlington knew some of Hamilton’s habits. For instance, Hamilton kept her front door locked with a key in the lock on the inside of the door, and she typically went to bed between 10:30 and 11:00 p.m. after activating the house alarm. During Darlington’s second brief appearance on the witness stand, he testified that Hamilton had visual difficulty.

Specifically, he recalled being in the country with Hamilton, and that she could not see nearby raccoons until they were right in front of her. He also testified that because of problems with her knees, she had difficulty maintaining her balance. Thus, the record reveals that Darlington had the opportunity to personally observe Hamilton and to describe her health and habits from his independent knowledge of her, and defendant does not point to any evidence to establish otherwise. For the reasons set forth above, the trial court did not abuse its discretion in allowing Darlington to attend defendant’s trial. D.

Alleged Error in Ruling on Defense Challenges for Cause A trial court may discharge a juror whose views on the death penalty “would ‘prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath.’ ” (Wainwright v.

Witt (1985) 469 U.S. 412, 424 [83 L.Ed.2d 841, 105 S.Ct. 844].) Defendant contends the trial court erroneously refused to excuse seven “pro-death” jurors for cause, claiming that their “support for capital punishment was so insistent” that they were “substantially impaired in their ability to perform their duties in accordance with the law and [their] oath.” As a result, defendant claims a denial of his right to a fair and impartial jury under the Sixth Amendment to the federal Constitution. This contention is not cognizable on appeal. (See People v.

Beames (2007) 40 Cal.4th 907, 924 [55 Cal.Rptr.3d 865, 153 P.3d 955]; see also People v. Avila (2006) 38 Cal.4th 491, 539 [43 Cal.Rptr.3d 1, 133 P.3d 1076].) Jury selection in this case took place in 1993, before our decision in People v. Crittenden (1994) 9 Cal.4th 83, 121, footnote 4 [36 Cal.Rptr.2d 474, 885 P.2d 887], made clear that a defendant must express dissatisfaction with the final jury before it is sworn, so that rule does not apply here.

Defendant nonetheless has forfeited this issue because he did not exhaust all of his peremptory challenges, nor does he make any attempt to justify his failure to do so. (People v. Beames, supra, at p. 924; People v. Avila, supra, at p. 539.) In any event, defendant fails to show prejudice. “ ‘To prevail on such a claim, defendant must demonstrate that the court’s rulings affected his right to a fair and impartial jury.’ [Citation.]” (People v. Guerra (2006) 37 Cal.4th 1067, 1099 [40 Cal.Rptr.3d 118, 129 P.3d 321].) Here, none of the seven purportedly “pro-death” jurors served on defendant’s jury.

Thus, the trial court’s failure to excuse these prospective jurors could not possibly have affected the fairness of the jury that decided defendant’s case. (People v. Weaver (2001) 26 Cal.4th 876, 913 [111 Cal.Rptr.2d 2, 29 P.3d 103]; Ross v.

Oklahoma (1988) 487 U.S. 81, 86 [101 L.Ed.2d 80, 108 S.Ct. 2273].) Nor, contrary to defendant, did the trial court’s refusal to excuse the seven prospective jurors “pollute the jury pool,” “alter the random order,” or “force” the defense “to make further challenges for cause or exercise peremptory challenges which could have been saved for more productive use.” (See People v.

Yeoman (2003) 31 Cal.4th 93, 114 [2 Cal.Rptr.3d 186, 72 P.3d 1166] [loss of a peremptory challenge is a ground for relief “ ‘ “only if the defendant exhausts all peremptory challenges and an incompetent juror is forced upon him” ’ ”]; see also Ross v. Oklahoma, supra, 487 U.S. at p. 88 [rejecting the notion that the loss of a peremptory challenge constitutes a violation of the constitutional right to an impartial jury].) III. Guilt Phase Issues A. Alleged Bailiff Misconduct At some point during the trial proceedings, defendant asked defense counsel for a piece of paper and a pen.

Upon receipt of these items, defendant wrote a note and gave it to defense counsel, who shared its contents with defendant’s mother.

The courtroom bailiff, Deputy Sheriff Kevin Fitzgerald, told defense counsel that her actions were “illegal.” Shortly thereafter, defense counsel asked the court to replace Fitzgerald with a different bailiff because counsel was “uncomfortable” with Fitzgerald’s presence, “unhappy with the atmosphere in [the] courtroom because of’ him, and “afraid for [her] client.” According to counsel, Fitzgerald made the trial proceedings “intolerable.” The trial court denied the motion, acknowledging, however, that communications between attorney and client are “privileged and confidential and are no business of the bailiff.” Defendant now contends Deputy Fitzgerald’s conduct infringed upon his attorney-client privilege, and that the trial court erred in denying the motion to replace him, thereby violating defendant’s rights to due process and a fair trial under the Fifth, Sixth, and Fourteenth Amendments, and his right to heightened reliability under the Eighth Amendment.

We disagree. In support of his claim of infringement of the attorney-client privilege, defendant compares his situation to that in Morrow v. Superior Court (1994) 30 Cal.App.4th 1252 [36 Cal.Rptr.2d 210], in which the prosecutor told her investigator to eavesdrop on a conversation between the defendant and his attorney in the courtroom’s holding cell.

The Court of Appeal there concluded: “Where the prosecutor uses the courtroom as a place to eavesdrop upon privileged attorney-client communications, which results in the acquisition of confidential information, the conscience of the court is shocked and dismissal is the appropriate remedy.” (Morrow v. Superior Court, supra, 30 Cal.App.4th at p. 1255.) Morrow is distinguishable in two significant respects. First, unlike the investigator in Morrow, Deputy Fitzgerald did not intentionally put himself in a position to “eavesdrop” upon communications protected by the attorney-client privilege.

Second, nothing in the record suggests that Fitzgerald acquired any confidential information. Therefore, we cannot say that Fitzgerald’s actions infringed upon defendant’s attorney-client privilege. With respect to the trial court’s decision not to replace Deputy Fitzgerald, trial courts possess broad power to control their courtrooms and maintain order and security. (Code Civ. Proc., § 128, subd. (a)(l)-(5); People v.

Woodward (1992) 4 Cal.4th 376, 385 [14 Cal.Rptr.2d 434, 841 P.2d 954].) The trial court chastised Fitzgerald for not bringing to the court’s attention any questions about the note passing rather than addressing the issue himself, but then expressed confidence in Fitzgerald’s abilities to maintain order in the courtroom and a clear preference that he remain. We discern no abuse of discretion in the ruling. Defendant’s claims of state law error and constitutional violations are meritless. B. Miscellaneous Evidentiary Issues Defendant asserts error in certain evidentiary rulings. We discuss these claims below. 1.

Evidence of Hamilton’s physical condition Over defendant’s objections of lack of relevance (Evid. Code, § 210) and more prejudicial than probative (id., § 352), the trial court allowed the prosecutor to introduce evidence of victim Hamilton’s poor eyesight and mobility problems. Defendant now contends the trial court’s ruling was in error and also asserts that admission of this evidence violated his United States Constitution Fifth, Sixth, Eighth, and Fourteenth Amendment rights to a fair trial, due process of law, and a reliable penalty determination. We disagree.

On appeal, we review for an abuse of discretion a trial court’s admission of evidence as relevant. (People v. Kipp (2001) 26 Cal.4th 1100, 1123 [113 Cal.Rptr.2d 27, 33 P.3d 450]; People v. Pollock (2004) 32 Cal.4th 1153, 1171 [13 Cal.Rptr.3d 34, 89 P.3d 353].) None appears. Evidence is relevant if it has “any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action.” (Evid. Code, § 210; see People v.

Kipp, supra, 26 Cal.4th at p. 1123.) “ ‘The test of relevance is whether the evidence tends “ ‘logically, naturally, and by reasonable inference’ to establish material facts such as identity, intent, or motive.” ’ ” (People v. Guerra, supra, 37 Cal.4th at p. 1117.) Here, the trial court found that evidence of Hamilton’s physical condition was relevant to defendant’s intent, to Hamilton’s ability to recognize and resist an intruder, and to the number of intruders who were in Hamilton’s house.

Defendant challenges the court’s reasoning, in particular the notion that Hamilton’s poor eyesight and limited mobility were relevant to the number of intruders in her house. Even assuming the trial court abused its discretion in admitting this evidence, defendant suffered no possible prejudice. The jury already knew that Hamilton was a frail 83-year-old woman, and thus the evidence regarding her poor eyesight and use of a cane would not have inflamed the jury. Further, the trial court did not abuse its discretion in admitting the evidence over defendant’s Evidence Code

section 352 objection. That

section affords a trial court discretion to exclude evidence “if its probative value is substantially outweighed by the probability that its admission will (

a) necessitate undue consumption of time or (

b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.” (Evid. Code, § 352.) The testimony of Hamilton’s neighbor, June Bryant, was brief and unsensational; thus, its probative value was not substantially outweighed by concerns of undue consumption of time or risk of prejudice to defendant. Further, given that Bryant was the first witness to testify about Hamilton’s physical condition, there was no danger that this evidence would be cumulative. Witness Darlington also testified briefly about Hamilton’s physical condition.

His testimony followed that of Bryant and Yula Nagy, Hamilton’s daughter, whose testimony about her mother’s physical condition was limited to the statement that she “couldn’t be without [her eyeglasses.]” Darlington testified that Hamilton appeared to have difficulty with her eyesight and was unable to see a raccoon at a distance of 10 feet. Darlington also testified that Hamilton had difficulty with mobility and that whenever she arose from a seated position, it took her some time to get her bearings before she was stable enough to move. Darlington’s testimony, like Bryant’s, was brief and matter of fact.

Although Darlington was the third prosecution witness to refer to Hamilton’s physical condition, we cannot say the trial court abused its broad discretion under Evidence Code

section 352 in allowing his testimony. Further, the trial court’s decision to sustain defendant’s Evidence Code

section 352 objection to the proposed testimony of Dr. Newel, an eye doctor, whose proffered testimony would have included that Hamilton “wore thick spectacles, had damaged one cornea so she could really only see out of her right eye and was significantly visually handicapped” demonstrates the court’s mindfulness of the potential prejudicial effect of overemphasizing Hamilton’s physical condition. Therefore, we conclude the trial court properly exercised its discretion in overruling defendant’s Evidence Code

section 352 objection to the evidence of Hamilton’s physical ailments. 2. Evidence that Hamilton slept with open bedroom window During the defense case-in-chief, defendant proposed to call Verdie Smith, murder victim Hamilton’s next-door neighbor for over 20 years, to testify about Hamilton’s custom and habits.

According to defense counsel’s offer of proof, Smith would testify that Hamilton told Smith of her need for fresh air, that Hamilton “always” slept with the window slightly open, that Smith believed that the house alarm was set up so that a slightly ajar window would not trip the alarm, and that on one occasion Smith saw Hamilton’s bedroom window open. During the foundational hearing held outside the jury’s presence, Smith testified that Hamilton told her that she kept her window open “some” and that Smith observed it open “some” on one occasion in the daytime.

Although conceding she may have told the district attorney during an interview that Hamilton always slept with the window open, Smith testified: “. . . I don’t know that she did. II] ... [f] I may have said that, but I don’t see the window at night. I don’t know.” Smith further admitted that her statement that the window could open without tripping the alarm was not based on personal knowledge, but on what Hamilton told her. The prosecutor objected to Smith’s proposed testimony on the grounds that it was inadmissible character evidence as well as hearsay.

The court sustained the prosecutor’s hearsay objection, without further argument from defendant. Defendant now claims the trial court erred in excluding Smith’s testimony, thereby violating his right to present a defense under both the state and federal Constitutions. At trial, however, defendant did not explain the relevance or purpose for the proffered evidence. Defendant’s failure to do so precludes him from challenging on appeal the exclusion of the evidence. (Evid. Code, § 354, subd. (a); People v.

Morrison (2004) 34 Cal.4th 698, 711 [21 Cal.Rptr.3d 682, 101 P.3d 568] [“ ‘As a condition precedent to challenging the exclusion of proffered testimony, Evidence Code

section 354, subdivision (a), requires the proponent make known to the court the “substance, purpose, and relevance of the excluded evidence ....”’ [Citation.]”) Further, any error in excluding the evidence was harmless. (People v. Watson (1956) 46 Cal.2d 818, 836 [299 P.2d 243] [state law error is prejudicial only if it is reasonably probable that a result more favorable to defendant would have been reached absent the error].) Defendant states that the defense theory was that Hamilton slept with the window open, a theory that rendered the use of force to enter her house unnecessary.

According to defendant, this “theory was important, for entry into an open window is a far cry from carrying a tool to the scene in order to force open a window.” The crime of burglary, however, requires only an entry with the requisite intent; the entry need not be accomplished by force. (§ 459; see 2 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) Crimes Against Property, § 120, p. 151.) Defendant further contends that entry into Hamilton’s house through an open window would preclude a finding of an intent to steal or commit another felony necessary to the crime of burglary.

In addition to being illogical, this contention is contrary to the defense theory of the case—that defendant arrived at Hamilton’s house intoxicated and entered the house through a window to obtain another alcoholic beverage. Even crediting defendant’s claim, his own theory supports the conclusion that he entered the home to steal liquor. Under these circumstances, therefore, we cannot say that the trial court’s error in excluding Smith’s testimony was prejudicial. 3.

Alleged chain of custody violation regarding defendant’s socks Officer Raymond Sandoval testified that when defendant was arrested, he was wearing socks on his hands. The socks were “old and worn,” and defendant’s fingers protruded through holes in the socks. Sandoval noticed a “red substance similar to blood” on the socks. Sandoval identified a pair of socks as the ones he removed from defendant’s hands at the time of his arrest. As offered into evidence, each sock was in an individually labeled envelope fastened by a clasp at the top.

In turn, these envelopes, which bore the Fresno Police Department case number for defendant’s case, were contained within another envelope, which the prosecutor unsealed with scissors in the courtroom. Defense counsel asserted that the prosecutor failed to present an adequate chain of custody for the socks. Counsel objected that the outer envelope containing the two individually labeled envelopes was dated 1993, whereas the individual envelopes were dated June 19, 1991.

Outside the jury’s presence, the trial court questioned Officer Sandoval, who explained that he recognized the socks as those he processed in the department’s property room, that he put the socks in containers, but not in the envelopes being used at trial. Sandoval stated that the socks were in the same condition as when he observed them at the time of defendant’s arrest, except that a small “sample” had been cut from each sock.

Under questioning by defense counsel, Sandoval testified that he did not initial or otherwise mark any of the envelopes, and that he was informed by members of the property room staff that the evidence had been repackaged several times. Sandoval admitted that the absence of markings on the envelopes to establish chain of custody violated the standard operating procedure for the Fresno Police Department’s property room.

The trial court overruled defendant’s objection, noting Officer Sandoval’s testimony that he recognized the socks and that except for the removal of a sample for analysis, the socks were in the same condition as at the time of defendant’s arrest. Defendant now contends the trial court abused its discretion in admitting the socks into evidence because there was no recorded chain of custody information from the time of defendant’s arrest to the placement of the socks in individual envelopes, or for the period between June 19, 1991 (the date on the individual envelopes), and 1993 (the date on the outer envelope).

Although the record of the chain of custody in this case was far from perfect, we disagree with defendant that these shortcomings rendered the admission of the socks an abuse of the trial court’s discretion. (See People v. Williams (1997) 16 Cal.4th 153, 196 [66 Cal.Rptr.2d 123, 940 P.2d 710].) “People v.

Riser (1956) 47 Cal.2d 566 [305 P.2d 1] sets forth the rules for establishing chain of custody: ‘The burden on the party offering the evidence is to show to the satisfaction of the trial court that, taking all the circumstances into account including the ease or difficulty with which the particular evidence could have been altered, it is reasonably certain that there was no alteration, [f] The requirement of reasonable certainty is not met when some vital link in the chain of possession is not accounted for, because then it is as likely as not that the evidence analyzed was not the evidence originally received.

Left to such speculation the court must exclude the evidence. [Citations.] Conversely, when it is the barest speculation that there was tampering, it is proper to admit the evidence and let what doubt remains go to its weight.’ [Citations.]” (People v. Diaz (1992) 3 Cal.4th 495, 559 [11 Cal.Rptr.2d 353, 834 P.2d 1171].) Here, defendant does not suggest that the socks were tampered with, he merely asserts it was “as likely as not” that the socks tested by the prosecution’s criminalist were not the same ones confiscated from defendant at the time of his arrest.

He ignores, however, Sandoval’s positive identification of the socks at trial. Under these circumstances, the trial court acted within its discretion in admitting the socks into evidence. 4. Admission of expert testimony of criminalist Delia Heredia Defendant contends the trial court erred by overruling a foundational objection to the qualifications of criminalist Delia Heredia, who ultimately testified as an expert witness regarding blood transfer and blood spatter evidence.

According to defendant, the trial court’s error allowed a “patently unqualified witness ... to render devastating opinions on blood evidence which allowed the prosecutor to make a much more powerful closing argument.” At the time of trial, Heredia had been a criminalist in the Fresno Regional Laboratory of the California Department of Justice for six years. Heredia had a bachelor’s degree from Fresno State University in biology, with a chemistry minor. She received training from the California Criminalistics Institute and from a doctor with the Metropolitan Police Laboratory in London, England.

Under questioning by defense counsel, Heredia revealed that she had 40 hours of training at the California Criminalistics Institute, including a course on bloodstain

interpretation, and that she also had received more than 40 hours of training on that topic for the Department of Justice. Heredia further noted that she had read many books and articles on bloodstain

interpretation, and that she kept current with her reading on the subject. Although Heredia had never qualified previously as a courtroom expert on bloodstain

interpretation, she had made over 20 determinations differentiating between blood transfers and blood spatters at crime scenes. Over defense objection, the trial court allowed Heredia to testify regarding blood transfer and spatter evidence. Heredia testified that most of the bloodstains—which were consistent with Hamilton’s blood type and inconsistent with defendant’s—found on defendant’s clothing appeared to be transfers or smears, rather than spatters.

A blood transfer or smear indicates that the perpetrator and victim somehow made contact to effectuate the transfer of blood from one surface to another, whereas a blood spatter indicates that the blood left one surface and was airborne until landing on the second surface. “We are required to uphold the trial judge’s ruling on the question of an expert’s qualifications absent an abuse of discretion. [Citation.] Such abuse of discretion will be found only where ' “the evidence shows that a witness clearly lacks qualification as an expert....”’ [Citation.]” (People v.

Chavez (1985) 39 Cal.3d 823, 828 [218 Cal.Rptr. 49, 705 P.2d 372].) Here, the trial court did not abuse its discretion in finding Heredia qualified to testify on bloodstain

interpretation. Given Heredia’s education and her training and practical experience in the Department of Justice’s Fresno Regional Laboratory, we cannot say that Heredia “clearly lack[ed]” qualifications as an expert. (See, e.g., People v. Bolin (1998) 18 Cal.4th 297, 322 [75 Cal.Rptr.2d 412, 956 P.2d 374] [witness with educational background in biochemistry and serology and training as a criminalist for 13 years, including attending and giving seminars in blood spatter analysis and crime scene investigation, was qualified to testify as blood spatter expert]; People v.

Clark (1993) 5 Cal.4th 950, 1018-1019 [22 Cal.Rptr.2d 689, 857 P.2d 1099] [no abuse of discretion in allowing testimony of blood spatter expert where witness had “(1) attended lectures and training seminars on the subject of blood dynamics in both California and Oregon; (2) read relevant literature; (3) conducted relevant experiments; and (4) visited crime scenes where ‘blood-spatter’ tests were conducted” (fn. omitted)].) For the same reasons that allowing Heredia’s testimony did not violate state law, it did not render defendant’s trial fundamentally unfair in violation of the federal Constitution.

Moreover, contrary to defendant’s characterization, the prosecutor made only a brief reference to Heredia’s testimony dining closing argument. Even assuming Heredia was not qualified to render an opinion on bloodstain

interpretation, defendant suffered no possible prejudice as a result of the testimony. C. Denial of Defense Motion for Mistrial During the guilt phase, the prosecutor presented the testimony of forensic toxicologist Ernest Lykissa, Ph.D., to establish that, despite a high blood-alcohol level, defendant was capable of forming the requisite intent to commit the crimes. Lykissa testified about drug and alcohol analysis of blood samples taken from defendant after his arrest. At that time, Lykissa was the director of forensic toxicology for Pathological and Clinical Services in the Fresno area.

The test results were negative for various controlled substances but positive for alcohol, with a measured level of 0.19 percent. Lykissa testified that defendant’s maximum blood-alcohol level at the time of arrest was 0.21 percent. He also testified that a person’s level of impairment from alcohol ingestion varies, and that habitual alcohol use causes alcohol tolerance, which may reduce the degree of impairment. On cross-examination, defense counsel attacked Lykissa’s credibility. Lykissa stated he had consulted with Forensic Toxicology Associates in Pasadena and had used the firm as an employment reference.

He denied ever being accused of falsifying reports or documents he claimed to have authored, and he denied being aware that individuals in the scientific community considered his reputation tarnished. He also denied asking Dr. Alan Barbour, a subordinate at Pathological and Clinical Services whose employment Lykissa claimed he ultimately terminated, to endorse his state application to become a certified forensic alcohol analyst.

During defense counsel’s recross-examination of Lykissa, this exchange took place: “[Defense Counsel:] What is your general reputation within the Fresno area, if you know it, among the scientific individuals who are similarly situated as you in regards to truth or veracity? “[Lykissa:] I believe I’m the only—when I was in the Fresno area I was the only forensic toxicologist of the doctorate level in the Fresno area. I think Mr. [Forensic Analyst William] Posey, as I said, he has been always on the other side of the bench whenever I testified in court. “[Defense Counsel:] But I’m not asking about Mr.

Posey right now. I’m asking about your reputation. “[Lykissa:] Sir, you are the judge of my reputation, not myself. “[Defense Counsel:] Let me rephrase the question. “[Lykissa:] Why don’t you tell me my reputation. “[Defense Counsel:] I’ll ask you the question. Are you aware there were other individuals who believe that you have on a routine basis falsified reports and records? “[Prosecutor:] Speculation and relevance as to belief of other individuals. “[Court:] Well, basically it’s not the—it is not phrased on the basis of reputation in the community.

The objection is sustained. “[Defense Counsel:] Are you aware there are individuals within the scientific community who believe that your reputation is tarnished? “[Lykissa:] Sir, I bet you there are enough individuals in Fresno that believe your reputation is tarnished. “[Court:] That wasn’t the question Doctor. “[Lykissa:] I don’t know that. “[Court:] Let’s answer the question that’s asked of you, sir. “[Lykissa:] No, no, sir. “[Defense Counsel:] Have you ever been accused of falsifying a report? “[Lykissa:] Never, sir. “[Defense Counsel:] Have you ever been accused of falsifying documents which you indicate you have authored? “[Lykissa:] Never, sir.” After redirect examination by the prosecutor, this exchange took place during defense counsel’s further recross-examination: “[Defense counsel:] Assuming approximately 10:23 p.m. was approximately sixty-two minutes before [the time defendant’s blood was drawn], can you tell me what the known blood alcohol level [for] my client would be? “[Lykissa:] As I said using the bum-off rate—using the bum-off rate, a .02 I will place him at very safely at .21.

I can use the Boston and .03 so let’s make it .22. “[Defense Counsel:] So you’re saying that’s a safe assumption that at 10:23 he was at approximately a .22? “[Lykissa:] Would I say so, yes. “[Defense Counsel:] So that means that at 10:23 he was higher than he was at 11:25? “[Lykissa:] Yeah, because there was no alcohol consumed in the hour—I’m assuming that there was no alcohol consumed between 10:23 and 11:25. “[Defense Counsel:] I’m sorry.

Your first assumption is that there was no alcohol consumed between the period of time; is that correct? “[Lykissa:] 10:23 and 11:25. “[Defense Counsel:] And any other assumptions? “[Lykissa:] Yeah. Also he wasn’t drinking while he was committing his crime. “[Defense Counsel:] You’re assuming he committed a crime. “[Lykissa:] I don’t know. “[Defense Counsel:] He wasn’t drinking during the period of activity— “[Lykissa:] We wouldn’t be here if he didn’t commit something. “[Court:] Oh, just a minute. The jury is admonished. Listen. Listen.

I run the courtroom according to the rules of evidence in the State of California. Your comment is out-of-order, sir. “[Lykissa:] I’m sorry. “[Court:] You ought to know better. And the jury’s admonished to disregard the comment that the witness made. “[Lykissa:] I’m sorry, your Honor. “[Court:] This is not a game. It’s not a place of amusement, it is a place of intellectual inquiry and the search for truth. And we don’t get arguments from witnesses, we get them from the attorneys based on evidence that is properly received in the courtroom. So just answer the questions is all we ask.

And be responsive and not entertaining.” After excusing the jury for lunch, the trial court continued: “[Court:] I don’t know, Dr. Lykissa, whether you’ve been testifying in Justice Courts or Municipal Courts but for you to state that the defendant, if he didn’t do something he wouldn’t be here, that is not an opinion of a toxicologist, it is someone—an opinion of someone who wants to be a smart aleck. “[Lykissa:] I apologize, your Honor. “[Court:] Well, you ought to know better.

Maybe you’ve been testifying—I thought you’ve been testifying in Federal Courts and so forth where you generally knew the rules, but— “[Lykissa:] I thought I was responding—I’m sorry, your Honor. “[Court:] Well, you respond— “[Lykissa:] You’re right.” Defense counsel then moved for a mistrial.

The trial court denied the motion, stating, “I think that I acted so quickly and so promptly upon hearing ... the witness’ response, and with such clarity with regard to the inappropriateness of the witness’ comment not even waiting for an objection because that type of response from an expert witness who should know better is so inappropriate that the court acted on its own motion, and I’m sure that the jury clearly got the court’s view and that it was inappropriate and struck the comment and admonished the jury to disregard it.

We’re not in a Justice Court, this is a very serious case and while everyone testifies with their own personality and their own way they should stick to their field of expertise and not get into argument on behalf of the party calling them. [|] The court feels that the promptness ... of the admonition clearly conveyed the impropriety of the comment to the jury and I have every reason to believe that they were disregarded in accordance with the admonition and instruction of the court and I think that under the circumstances that is certainly adequate to cause the jury to disregard the comment.” During the lunch recess, Alternate Juror R.W. asked the court to be excused from jury service, stating: “I don’t feel that I can any longer be a competent juror since I have been biased by the actions of the defense attorney and the expert witness.

This has been a dog-and-pony show all morning.” Alternate Juror R.W. added, “I could not give an unbiased opinion any longer because this is obviously a show between the two of these witnesses who—it was carried over from another trial some place and it’s coming into this courtroom.” Alternate Juror R.W. said he had “sacrificed enough to be here for what I am and now the unprofessional action of these two people has made me a little angry.” The trial court found “good cause” and thus excused the alternate juror from further service.

Before leaving, Alternate Juror R.W. said he had not shared his feelings with other jurors and did not hear any of them discuss what had transpired during defense counsel’s cross-examination of Lykissa. After the lunch recess, Dr. Lykissa returned to the stand. On further redirect examination, this exchange took place: “[Prosecutor:] Dr.

Lykissa, in your career, is there anything that you have participated in that has affected the career of this person by the name of Posey? “[Lykissa:] Most definitely, yes, sir. “[Prosecutor:] And what is that? “[Lykissa:] I feel that in my capacity as a forensic toxicologist here in Fresno and also in . . . Tulare County having worked with analyzing most of the specimens that were being produced by the various law enforcement agencies in these two counties, including Merced and some of the northern San Francisco areas, I found myself in a conflict of business interest with Mr. Posey.

And at the same time I have found myself on numerous occasions in an adversarial position with Mr. Posey.

I have spoken with nothing but respect about the gentleman and some of the insinuations that were brought into this court though the incentives are very clear to me—I find him very offensive and maybe my response, my immature and unwarranted response created the scene before the break for which I apologize to all of you present with the extreme prejudice or due to the fact that some attacks to my credibility as a scientist were brought into this courtroom.” Defendant now contends the trial court’s failure to grant the defense mistrial motion “perverted the presumption of innocence and undermined the burden of proof.” According to defendant, the trial court’s admonition was insufficient to cure any prejudice that resulted from Lykissa’s “outrageous misconduct.” As proof, defendant points to Alternate Juror R.W.’s request to be excused after witnessing the exchange between Lykissa and defense counsel.

We reject this contention. In reviewing rulings on motions for mistrial, we apply the deferential abuse of discretion standard. (People v. McLain (1988) 46 Cal.3d 97, 113 [249 Cal.Rptr. 630, 757 P.2d 569].) “A mistrial should be granted if the court is apprised of prejudice that it judges incurable by admonition or instruction. [Citation.] Whether a particular incident is incurably prejudicial is by its nature a speculative matter, and the trial court is vested with considerable discretion in ruling on mistrial motions. [Citation.]” (People v.

Haskett (1982) 30 Cal.3d 841, 854 [180 Cal.Rptr. 640, 640 P.2d 776].) Here, the trial court did not abuse its discretion in denying defendant’s motion for a mistrial. Although the exchanges between defense counsel and Lykissa resulted in the court’s good cause excusal of one alternate juror, that alternate juror neither shared his feelings with any of the seated or alternate jurors nor heard any of them discuss the behavior he found so offensive.

The trial court’s admonition to the jury was stem and immediate, and it occurred before defense counsel even had an opportunity to object to Lykissa’s inappropriate comments. Lykissa apologized for his behavior three times before the jury—twice immediately after his improper reference to defendant’s guilt and a third time when he returned to the witness stand after the noon recess. Under these circumstances, the trial court properly exercised its discretion in denying defendant’s motion for mistrial. D.

Refusal to Allow Impeachment of Prosecution Witness Ernest Lykissa As noted above, the prosecution called Lykissa to prove that defendant’s high blood-alcohol level did not preclude him from forming the requisite intent to commit the charged crimes. Defense counsel sought to impeach Lykissa with the testimony of Dr. Alan Barbour, Lykissa’s former colleague. Outside the jury’s presence, Barbour testified that when he and Lykissa were colleagues in the same laboratory, Lykissa submitted, without Barbour’s knowledge, an application for certification by the state as a forensic alcohol analyst.

Lykissa’s application required Barbour’s signature, as the person responsible for forensic alcohol analysis, and that of Dr. Jerry Nelson, the forensic alcohol laboratory administrator. Barbour explained that the State Department of Health Services returned one of the forms from Lykissa’s application, along with a letter requesting further documentation of his experience. Barbour testified that Lykissa added a line on the application indicating he had experience as an analyst at Forensic Toxicology Associates in Pasadena.

Barbour said he called the owner and administrator of that laboratory, who told Barbour that although she knew Lykissa, he had never been involved in forensic alcohol analysis at the facility. Barbour refused to sign Lykissa’s application, because he “could not in good conscience” vouch for Lykissa’s qualifications under penalty of perjury. The trial court sustained the prosecutor’s Evidence Code

section 352 objection to testimony explaining why Barbour did not sign Lykissa’s application and what he learned in his attempt to verify Lykissa’s employment with Forensic Toxicology Associates in Pasadena, mling that allowing evidence on such “an incidental and very collateral matter” would unduly consume time. Before the jury, Barbour testified Lykissa was not licensed to perform forensic alcohol analysis. He also said he had discovered Lykissa’s representations in another case to be untrue, and he expressed an opinion that Lykissa does not always tell the truth.

Finally, Barbour denied having been fired from Pathological and Clinical Services, explaining that he left because of a reduction in workforce. Defendant now claims the trial court’s ruling limiting Barbour’s testimony to impeach Lykissa violated his Sixth and Fourteenth Amendment rights to confrontation, to present a defense, and to due process of law.

Defendant argues that because Lykissa was “a central figure” in the prosecutor’s strategy to nullify the defense theory of the case—that defendant was so intoxicated at the time of the homicide that he did not have the requisite intent to commit the crimes, and that the crimes were committed by an acquaintance without defendant’s consent—he should have been given wide latitude to probe Lykissa’s veracity.

Further, defendant claims that because of the trial court’s limitation of Barbour’s testimony, the jury was free to dismiss the defense attempt to impeach Barbour as Barbour’s personal grudge against Lykissa for having fired him. We review for abuse of discretion the trial court’s ruling sustaining the prosecutor’s Evidence Code

section 352 objection to Barbour’s proposed testimony. (People v. Pollock, supra, 32 Cal.4th at p. 1171.) We find none here. The trial court did not prevent Barbour from stating his opinion that Lykissa was not always truthful, from contradicting Lykissa’s account that Barbour was fired from Pathological and Clinical Services, or from offering an alternate explanation for his departure. Barbour’s testimony, therefore, achieved precisely what defendant wanted—it called into question Lykissa’s reputation for veracity. Under these circumstances, the trial court properly exercised its discretion under Evidence Code

section 352 and did not violate defendant’s constitutional rights in limiting Barbour’s testimony. E. Alleged Prosecutorial Misconduct Defendant claims several instances of prejudicial misconduct by the prosecutor in violation of his constitutional rights to a fair trial and due process under the Sixth and Fourteenth Amendments of the United States Constitution. We disagree. As we explained in People v. Earp (1999) 20 Cal.4th 826 [85 Cal.Rptr.2d 857, 978 P.2d 15], on claims of prosecutorial misconduct our state law standards differ from those under the federal Constitution.

With respect to the latter, conduct by the prosecutor constitutes prosecutorial misconduct only if it “ ‘ “ ‘so infect[s] the trial with unfairness as to make the resulting conviction a denial of due process.’ ” ’ ” (People v. Earp, supra, at p. 858; see Darden v. Wainwright (1986) 477 U.S. 168, 181 [91 L.Ed.2d 144, 106 S.Ct. 2464]; Donnelly v. DeChristoforo (1974) 416 U.S. 637, 642 [40 L.Ed.2d 431, 94 S.Ct. 1868]; accord, People v.

Morales (2001) 25 Cal.4th 34, 44 [104 Cal.Rptr.2d 582, 18 P.3d 11].) By contrast, our state law considers it misconduct when a prosecutor uses “ ‘ “ ‘deceptive or reprehensible methods to attempt to persuade either the court or the jury.’ ” ’ ” (People v. Earp, supra, at p. 858; accord, People v. Morales, supra, at p. 44; People v. Espinoza (1992) 3 Cal.4th 806, 820 [12 Cal.Rptr.2d 682, 838 P.2d 204]; People v. Price (1991) 1 Cal.4th 324, 447 [3 Cal.Rptr.2d 106, 821 P.2d 610].) One such means is “eliciting or attempting to elicit inadmissible evidence” in defiance of a court order. (People v.

Crew (2003) 31 Cal.4th 822, 839 [3 Cal.Rptr.3d 733, 74 P.3d 820].) “A defendant’s conviction will not be reversed for prosecutorial misconduct” that violates state law, however, “unless it is reasonably probable that a result more favorable to the defendant would have been reached without the misconduct.” {Ibid.) Defendant cites as instances of prosecutorial misconduct certain questions by the prosecutor, including the cross-examination of defendant and defense expert witnesses Pittel and Barbour, and certain comments and behavior during trial.

We have considered these contentions both singly and together and conclude that they did not “ ‘ “ ‘so infect[] the trial with unfairness as to make the resulting conviction a denial of due process’ ” ’ ” in violation of the federal Constitution. (People v. Earp, supra, 20 Cal.4th at p. 858; see Darden v. Wainwright, supra, 477 U.S. at p. 181; Donnelly v. DeChristoforo, supra, 416 U.S. at p. 642.) We now consider whether the prosecutor’s conduct constituted prejudicial misconduct under state law. We conclude it did not, as explained below.

Defendant contends the prosecutor’s cross-examination of certain witnesses placed inadmissible material before the jury. With respect to the cross-examination of defendant, one claim is that in asking him to review a copy of a defense investigator’s report, the prosecutor improperly exposed the jury to hearsay information in the report.

For example, the prosecutor asked whether the exhibit refreshed defendant’s recollection that when defendant “left Floyd’s [house] for the last time that night[,] that [Floyd] followed [defendant] out.” The trial court sustained the defense objection and the prosecutor rephrased the question. The crux of defendant’s claim is that the prosecutor defied a court order in referring in his questioning of defendant to the contents of the defense investigator’s report. We agree this was misconduct. (See People v.

Crew, supra, 31 Cal.4th 822, 839.) Defendant further claims that the prosecutor asked argumentative questions and on four separate occasions improperly commented on defendant’s answers with phrases such as “Really” or “I see.” On the facts of this case, however, no reasonable probability exists that without the objectionable comments or inclusion of improper material in the prosecutor’s questioning of defendant the jury would have reached a guilt phase verdict more favorable to defendant.

We now turn to defendant’s claim of prosecutorial misconduct in questioning defense expert Pittel, who testified on direct examination about defendant’s intoxication when arrested for the murder of Hamilton. On cross-examination, Pittel testified that defendant’s obstreperous behavior at the time of his arrest was evidence of intoxication. When the prosecutor asked whether this behavior “impressed” Pittel, the trial court directed the prosecutor to inquire about Pittel’s opinions, not his impressions.

After the trial court sustained a defense objection that the prosecutor’s rephrasing of the question “suggested] facts . . . not in evidence,” the prosecutor rephrased his question as a hypothetical, asking Pittel to assume that defendant had fought with police on other occasions, and then inquiring whether that would affect his opinion of defendant’s intoxication at the time of arrest. The trial court overruled defendant’s objection to this rephrased question, and Pittel responded that the assumed facts would not alter his earlier assessment.

Defendant now contends this questioning was prosecutorial misconduct that served no purpose other than suggesting to the jury that he had previously fought with police. We disagree. Once Pittel expressed the opinion that defendant’s actions when arrested were evidence of his intoxication, the prosecutor was entitled to ask whether Pittel’s opinion would be the same if defendant had previously engaged in the same sort of violent conduct when not intoxicated. In any event, defendant suffered no possible prejudice.

With respect to defense expert Barbour, defendant points out that the trial court sustained a defense relevancy objection to evidence that a portion of defendant’s blood sample taken on the night of his arrest had been released to the defense for testing. The parties then stipulated, and

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