Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County. Los Angeles County Super. Ct. No. YA062759 John V. Meigs, Judge.
John A. Colucci, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Michael R. Johnson, Joseph P. Lee, Lawrence M. Daniels and Allison H. Chung, Deputy Attorneys General, for Plaintiff and Respondent.
BOREN, P. J.
A jury convicted Hakeem Blueford (appellant) of first degree murder and found that he personally used a deadly and dangerous weapon, a knife, in committing the murder. (Pen. Code, §§ 187, subd. (a), 12022, subd. (b)(1).) The trial court sentenced appellant to 25 years to life for the murder and a consecutive one-year term for the weapon-use enhancement.
Appellant appeals on the grounds that: (1) he was denied his Sixth Amendment right to confrontation when a DNA expert was allowed to testify regarding the results of DNA analysis performed by someone else; (2) evidence of the victim’s prior police report of a threat by appellant, without opportunity for cross-examination, violated appellant’s Sixth Amendment right to confront and cross-examine witnesses and was inadmissible hearsay despite Evidence Code section 1370; (3) evidence of the victim’s prior police report of a threat by appellant did not qualify for admission under Evidence Code section 1370, and its admission violated appellant’s due process right to a state entitlement under Hicks v. Oklahoma (1980) 447 U.S. 343 (Hicks); (4) numerous instances of prosecutorial misconduct rendered appellant’s trial unfair and a violation of due process; (5) the trial court erred in admitting prior uncharged bad acts and in failing to provide a meaningful limiting instruction, thus allowing introduction of prejudicial character evidence that denied appellant a fair trial and due process; (6) the trial court erred in admitting gruesome photographs of the victim’s body, which inflamed the jury and caused outbursts in the audience, and it erred in denying a mistrial on this ground; (7) the trial court erred in denying appellant’s five mistrial motions; (8) the trial court erred in denying appellant his right under Faretta v. California (1975) 422 U.S. 806 (Faretta) to represent himself at sentencing and the new trial motion hearing; (9) the trial court erred in convening a hearing under People v. Marsden (1970) 2 Cal.3d 118 (Marsden) when appellant sought to discharge retained counsel; and (10) the cumulative effect of the trial errors requires reversal.
FACTS
Prosecution Evidence
Appellant and Shanise Blueford (Shanise), the victim in this case, married on November 8, 2001. Shanise was 15 or 16 years old when they began dating and 19 when they married. Appellant was three years older. Their daughter, K., was born in June 2002. The couple separated in January 2005, and Shanise moved with her daughter into her own apartment in April of that year. In June 2005, appellant went to live in Maryland.
In late July 2005, Shanise’s mother, Che-rie Edwards (Edwards) and Edwards’s 14-year-old daughter, Anastasia, moved into Shanise’s apartment. In early August 2005, Edwards’s friend, Marvin Brown (Brown), began staying in the apartment also. Brown agreed to use his car to provide transportation for Shanise and Edwards in exchange for staying in the apartment.
In August 2005, Shanise was in a romantic relationship with Antonio Toy (Toy). Shanise met Toy through her younger brother, Michael. Toy lived in Victorville, and he and Shanise spoke often by telephone. Toy planned on staying at Shanise’s apartment for a time beginning on Thursday, September 1, 2005. One week before that, on August 25, 2005, appellant arrived in Los Angeles.
On or about the morning of August 25, 2005, Shanise told Brown that appellant was coming to Los Angeles and was to meet her at her workplace at lunchtime. Shanise asked Brown to record the license number of appellant’s car when appellant arrived in the parking lot. Shanise seemed nervous. As Shanise left her workplace and approached appellant’s car, she waved to Brown, who was waiting in his car. Brown noted the license plate number. Shanise introduced appellant to Brown and got into appellant’s car.
Shanise told appellant he could stay in her apartment. He placed his luggage in Shanise’s bedroom the day of his arrival but did not stay overnight. He did not return to sleep there until August 30, 2005.
On August 27 or 28, 2005, Edwards noticed that appellant’s tattoo saying “Shanise” had been scratched out from his left arm. The spot showed a wound. On August 28, 2005, a Sunday, Siobhan Walden (Siobhan), Shanise’s older sister, was with Shanise in a laundromat. Shanise’s cell phone alerted when a call came in, and the message log on the phone showed that appellant had made 99 calls to Shanise. Shanise seemed frustrated every time she received a call.
Anastasia was in Shanise’s apartment while appellant was there on Sunday, August 28, or Monday, August 29. Appellant stood and spoke in a loud voice to Shanise, who was seated. Shanise listened and looked at the floor, looking scared, and sometimes seeming angry. Anastasia was frightened by the incident and left the apartment the following day. Shanise appeared to dislike appellant’s presence. Anastasia had seen appellant be “mean” to Shanise, but she had not seen Shanise be “mean” to appellant. In the past, Shanise had never argued with appellant but merely looked down.
On either August 28, or August 29, 2005, appellant called Toy but hung up. Toy returned the call saying, “Who is this? I already know who this is.... Hakeem, what’s up?” Appellant replied, “I’m fucking your girl, that’s what’s up.” Toy said, “I’m fucking your wife.” Appellant hung up.
Brown saw appellant talking to Shanise while she was on the phone with Toy on several occasions. Appellant seemed angry at these times. On Monday, August 29, 2005, appellant left a message on Toy’s answering machine that said, “Hey, while I am here, [you] better stay away, is that clear? I’m showing how much... here... talking on the phone and all that petty shit is one thing, if you’re coming over here Thursday, I’ll see him. Have a nice night. Pretty sure you know who I’m talking about.” Appellant also threatened to kill Toy if Toy came around appellant’s family. Appellant’s message followed a conversation with Shanise in which she had asked for a divorce. Appellant’s cell phone records showed four calls to Toy’s telephone on August 29, 2005.
The recorded message was played for appellant’s jury
Toy spoke with Shanise and suggested appellant should leave her apartment before Toy’s planned arrival on September 1, 2005. On the evening of August 30, 2005, Shanise wrote a letter to Toy. Edwards saw Shanise writing the letter on a legal pad that night. At about 2:00 a.m., on Wednesday August 31, 2005, Shanise awoke Brown, who was sleeping in the living room. She asked him to make appellant leave her bed. Shanise was nervous and angry. Brown told appellant that Shanise wanted appellant out of her bedroom, and appellant said, “This is mine, this is my house. This is where I’m living.” Brown also told appellant that he had to leave the apartment by the evening of August 31 because Shanise’s friend would be arriving on the following day. Appellant appeared upset. Appellant refused to leave the bedroom and said that K. wanted him there. Shanise left the bedroom and went to lie down on the living room floor. A short time later, she received a text message from appellant saying, “Come back to bed. I won’t touch you. I just want you to lay in the bed with me and [K.].”
When Edwards awoke the next morning, she saw Shanise looking for the letter she had been writing to Toy the previous evening. Shanise was looking through her purse, which she had left in her bedroom the night before. Shanise seemed upset and afraid when she could not find the letter. When Brown dropped Shanise at work, she still appeared to be in a panic.
Brown picked up Shanise from work on August 31, and they returned to the apartment at about 5:30 p.m. Approximately 15 minutes later, appellant knocked and entered with K. Shanise spoke with Toy on her cell phone while she prepared K.’s bath, and Brown also spoke with Toy. After Brown finished speaking with Toy, he again told appellant he had to leave that day because Shanise’s friend was coming the following day. Appellant said he would go to his mother’s or visit some lady friends. Appellant went outside and sat on the stairs.
At approximately 7:00 p.m., Brown left to pick up Edwards and asked appellant if he was “cool” before he left. Appellant said he was. Shanise was still on her cell phone.
K., who was six years old at the time of trial, testified that she remembered the evening of August 31, 2005. She was three years old at that time. Shanise went into the bedroom after bathing K. K. heard someone at the front door, and she heard appellant tell her to open the door, but she could not. Appellant then opened the door himself and asked where Shanise was. He entered the bedroom where Shanise was lying down. K. entered the room also and saw that Shanise looked scared and appellant looked “very mad.” Appellant told K. to leave, and she did so although she did not want to. K. closed the bedroom door. K. could not turn the door knob when she tried, and she believed appellant had locked the door. K. heard screaming and choking inside the bedroom. K. heard Shanise choking while appellant made a huffing and puffing sound.
At 7:57 p.m., appellant left the following message on Toy’s answering machine: “Hey nigger, you just cost this bitch her life. She’s dead. You want to hear her?” Shanise’s cell phone records showed that the last outgoing call was made to Toy’s telephone at 7:57 p.m. The call prior to that one was made to Toy’s phone at 6:04 p.m. and ended at 7:43 p.m.
When Toy heard appellant’s message, he called Michael and told him to go to Shanise’s apartment. Toy also called Edwards and played the message, telling her to go to Shanise’s apartment. Toy then called 911. Upon Michael’s hearing from Toy, Michael called Shanise’s cell phone, which was answered by appellant. When Michael asked appellant where Shanise was, appellant calmly replied, “Um, I just killed her. She[’s] dead. She[’s] right here. It’s all your fault.” Appellant repeatedly said that Shanise was dead and that he had killed her when Michael asked appellant to give Shanise the phone. Appellant hung up.
At approximately 8:19 p.m., Officer Paul Devlin of the Inglewood Police Department responded to a radio call regarding trouble at Shanise’s apartment. Officer Devlin knocked and heard K. ask who it was. Because the door was locked, Officer Devlin entered through a window. Officer Devlin and other officers could not open the bedroom door, although it was unlocked, because something heavy was wedged against it. After pushing the door open, the officers entered and found a large television wedged against the inside of the door. Appellant was lying with his head off the bed and his legs on the bed. He was breathing and conscious. He had a cut on his wrist and lacerations on his arms. He was covered in blood and had a USB cord around his neck. Shanise was lying on her side in a fetal position beside the bed. She was unresponsive and had no vital signs. There was a lot of blood around her, and her intestines protruded from a large cut on the side of her body.
Officers Poor and Salmon saw two blood-stained knives within three or four feet of appellant’s right hand. One knife was a kitchen knife and the other was a utility knife. The officers handcuffed appellant. Emergency medical technician Francis Runas treated appellant. Runas saw a USB cord around appellant’s neck. Runas wiped appellant with a towel to determine whether the blood covering him was the result of an injury. Runas found “a couple” of minor lacerations on appellant’s chest and abdominal area, three gashes on his left arm, and a few minor lacerations on the anterior neck area. Only two of the lacerations were actively bleeding-a fairly large gash on the inside of the left elbow and another on the neck. All of the wounds were on the front of appellant’s body.
The parties stipulated that appellant’s booking report showed his height as six feet two inches and his weight as 160 pounds. The parties stipulated that the coroner’s report showed that Shanise’s height was five feet two inches and her weight was 140 pounds.
The parties stipulated that all the items in evidence were collected at the crime scene by Detective Anne Bravo and placed in individually marked envelopes. The envelopes were sealed and preserved in a sealed condition in the evidence locker of the Inglewood Police Department. The parties stipulated that the USB cord and the blood samples taken from the large kitchen knife, the utility knife, the inside of the bedroom door, and the bedroom wall were sent in individually sealed packages to a DNA laboratory for analysis. They were returned in a sealed condition to the Inglewood Police Department by the DNA laboratory.
On September 2, 2005, appellant’s mother, Ellen Blueford (Ellen), told Edwards that appellant had called her and his sister to talk “all day long” about the letter Shanise wrote to Toy. The letter mentioned Shanise and Toy having babies together. Ellen told appellant to forget about the letter and move on. Edwards later found the letter-the same one she had seen Shanise writing-under Shanise’s bed among appellant’s belongings. Edwards gave the letter to Detective Loyd Waters. When Detective Waters interviewed Ellen, she stated she did not remember the letter’s contents. She said that appellant seemed incredulous of the letter’s contents. At trial, Ellen denied knowing about the letter.
Dr. Vadims Poukens, who performed Shanise’s autopsy, listed the cause of death as multiple stab wounds and strangulation. Shanise had several fresh bruises and seven stab wounds. Five stab wounds were on the right side of the body and two were on the left side of the abdomen. All the stab wounds were fatal or potentially fatal and were inflicted while the victim was alive. The victim had no defensive wounds, and there were signs of strangulation, indicating that she may have been unconscious during the stabbing. Her face was heavily congested, which was consistent with a person being stabbed while being strangled. There were also abrasions and bruises on the neck, and petechial hemorrhages in both the eyes and the mouth, also indicative of strangulation.
Gina Pineda, an associate laboratory director for Orchid Cellmark (Cellmark) testified that Cellmark’s report made the following conclusions: Shanise was the donor of the DNA obtained from the blood on the bedroom door; appellant was the donor of the DNA obtained from the blood on the bedroom wall; appellant was the donor of the DNA obtained from blood on the utility knife; and the DNA profile obtained from the blood swab of the kitchen knife was consistent with a mixture of DNA from appellant and Shanise.
Defense Evidence
Appellant testified in his own defense. He and Shanise were in a relationship for a year and a half before marrying in November 2001. K. was born eight months later. They separated in August 2004. The separation occurred because Shanise was upset about something. In July 2005, appellant moved to Maryland, but he returned to California at Shanise’s request. It was prearranged that he would stay at Shanise’s, and Shanise gave him a spare set of keys. Appellant was surprised that others were living there. The relationship between appellant and Shanise was stale because they had been apart for so long, but they were cordial and there was no hostility. Appellant intended to stay with Shanise for a long time if they could work it out.
On August 31, 2005, the day of the stabbing, appellant had a job interview at the Whittier Police Department’s official impound yard. There was no set time for the interview, and he did not recall the name of the person he saw there. He telephoned Shanise and said he would pick up K. after his interview and take her to see his mother, which he did. Appellant left K. at his mother’s and picked up Shanise from work, as they had agreed. Appellant then drove K. and Shanise home. Brown was lying when he said that it was he who picked up Shanise from work that day and ran errands with her.
When appellant, Shanise, and K. arrived, no one else was in the apartment. Later Brown came in and left again. Appellant stayed outside on the stairs and read a DMV pamphlet on obtaining a class A license.
At one point, appellant was heading toward the bedroom to give himself an insulin shot. He glanced at Shanise, who was at the stove, and she “shot” him a “pretty mean look.” He stopped at the counter and asked her, “You really hate me, huh?” Shanise was on the telephone and did not answer. She told the other person she would call back. Shanise put the phone down and went to get K. out of the bathtub.
Shanise went into the bedroom with K., and appellant followed her. Appellant asked K. to leave the room because he was going to continue the question he had in the kitchen, about the “hate tension” he was sensing. K. left, but appellant did not close the door. Appellant asked Shanise what all the hate was about but she did not answer. He continued to question her as he took out his needles for his insulin injection. Shanise closed the bedroom door. She said things to appellant, and he responded. He did this calmly and was not angry.
Appellant did not know how the kitchen knife came to be in the bedroom. The utility knife was appellant’s. Shanise was the first person in the room with a knife in the hand. Appellant was telling Shanise she was not making any sense, and he made some accusations about her behavior. He looked away for a second, and when he turned back, Shanise lunged at him from a sitting position and jabbed him in the neck
with the knife. Appellant showed his scar to the jury. Shanise continued to jab at him with the knife, but at the time appellant did not feel any of it. The injuries shown on the photographs of appellant’s torso were made by Shanise.
Appellant put his left arm out and backed up to keep some distance from Shanise, but he hit the wall. He fell and was on the ground for a little while. He was bleeding to death. He felt he could not breathe and he got up and began clawing at his neck. Shanise kept swinging the knife, which she held in her left hand even though she was right-handed.
At some point, he got hold of Shanise and pushed her back, and she landed on the bed. They struggled on the bed. Appellant said he was on top and Shanise was on the bottom as they struggled. Appellant believed this might have been the way Shanise got the marks on her neck. Appellant fell backwards after they struggled on the bed.
Appellant acknowledged giving Shanise the stab wounds she had. He did not recall using the utility knife or even pulling it out. He was being stabbed and was in survival mode. Shanise lunged for the kitchen knife and so did he. The knife was on the bed. She got to it first, but he eventually got it from her. Appellant assumed he then stabbed Shanise with the knife.
After causing Shanise’s stab wounds, appellant backed up in a state of confusion. He acknowledged that he stabbed her seven times, but he did not have a vivid memory of it. He did not know if he was choking her while he stabbed her. It appeared to him that he grabbed her neck. Appellant acknowledged that Shanise had black eyes, and he assumed he hit her. He had never hit her before.
Appellant then stated that he backed up and was clawing at his neck after he stabbed Shanise. When he was able to focus, he saw Shanise with her cell phone in her hand. He instinctively took it. After he noticed that she had called Toy, he put the phone to his ear. Appellant had all of his stab wounds at this point. Appellant said to Toy, “You want her? Here.” And he gave Shanise her phone back. She took the phone and his memory was faint after that point. Later, appellant said he did not remember what he said until he heard the tape in court. He remembered that he heard a thump and realized Shanise had rolled off the bed. He could not say what happened next. The next thing he knew he was in the hospital. Appellant did not recall receiving a telephone call from Shanise’s brother Michael after appellant stabbed Shanise.
The prosecutor played the tape of appellant’s phone call to Toy during cross-examination (People’s exh. No. 60). Appellant did not recognize his voice. He denied calling Toy, but admitted leaving a recording for him. He did not know if the call was made when Shanise was gasping for breath because he was not paying attention to her at the time.
Appellant could not tell if it was his voice on the message he had previously left on Toy’s home phone (People’s exh. No. 62). Appellant did not care if Toy was coming to stay at Shanise’s home, and he was all right with her dating him. He was not jealous. He did not dislike Toy but thought Toy was disrespectful to appellant. Appellant was not threatening Toy in the message he left him.
Appellant did not believe Shanise seemed afraid of him when he was driving her around after he came from Maryland. He said that K. was not correct when she said appellant locked the bedroom door. Appellant acknowledged that all of his knife wounds were in areas of his body that were accessible to himself. He acknowledged he was wearing both a Jersey-type shirt and a T-shirt during the time Shanise was stabbing him. He denied that his wounds were self-inflicted. He did not use the utility knife on himself, even though it was only his blood on that knife. He was not saying that Shanise stabbed him with two knives either.
Appellant denied that Shanise and Brown told him he had to be out that Wednesday night. He denied knowing that Shanise loved Toy, and he did not know anything about a letter Shanise wrote to Toy. He then acknowledged he had read it but said that it did not upset him. He found the letter amusing.
Appellant was not sure where he was in the room when Shanise rolled off the bed. He was standing when that happened. He did not remember in what position she had been on the bed. Appellant did not know how he got in the position of having his feet on the bed and his head down on the floor after she fell, which is how he was found. He did not remember how the USB cord became wrapped around his neck. He later found out that this cord was the reason he was having trouble breathing. Shanise must have put the cord around his neck, but he did not see her do it.
Appellant remembered putting Shanise and K. out of their home in January 2005 and telling Shanise she needed to go somewhere else. Shanise had only the clothes on her back. This incident had to do with Toy. Appellant continued to call Shanise on the phone at that time because they had a daughter. He denied that he called her approximately 30 times and threatened her on the phone. He denied that on January 29, 2005, at approximately 11:00 p.m., after having left over 30 messages, he called her and told her he was going to stab her and watch her die. He denied going to the place Shanise was staying in February 2005 and asking for her. He denied calling her on his cell phone as he walked through the apartment complex where he believed she was and telling her she needed to come out immediately. He denied finding her car in the area and vandalizing it by spray-painting words like “bitch” and “stupid” inside and outside the car. He denied slitting the seats and pouring oil on Shanise’s and K.’s clothing inside the car.
Appellant said he never threatened Shanise in an effort to keep her in a relationship with him. He never threatened to kill her and K. To his knowledge, Shanise was not afraid of him. She had no reason to be afraid of him. He did not consider anything he had ever done as “mean.”
Rebuttal Evidence
While appellant and Shanise were still together, Anastasia had seen appellant speak angrily to Shanise and grab her arm, resulting in bruises. Shanise just looked at the floor during this incident. Anastasia often saw bruises on Shanise’s arm. Appellant frequently called Shanise a “stupid bitch, ” and Shanise just looked away.
Siobhan dated appellant before Shanise did but stopped seeing him because he was controlling. Approximately 11 years before trial, appellant threw a barbeque grill up a stairwell, hitting the back of a wall near the spot where Siobhan was standing. Two weeks before Shanise moved to her own apartment, appellant broke the window of Shanise’s car with a flashlight. Appellant often called Shanise names, such as “stupid, ” “bitch, ” and “ho, ” and he told her she was a disgrace.
Edwards heard appellant shouting names and profanities at Shanise when Shanise telephoned Edwards in January 2005, and she heard appellant tell Shanise to get out. Shanise and K. went to stay at Edwards’s home, and Shanise arrived with no shoes on and no extra clothing. Appellant later went to Edwards’s house looking for Shanise and also went to the apartment complex where he had once dropped off Michael and Toy. Shanise was with Toy in one of the apartments. Toy saw appellant inside Shanise’s car, which was parked across the street. Appellant was in the driver’s seat, and there were clothes on the ground outside the car. Appellant then walked into the apartment building holding his cell phone to his ear while Shanise’s phone was ringing. After appellant left, Toy checked on Shanise’s car and saw it had been vandalized. Derogatory words were spray painted on the interior, wires were pulled out, the car seats were slashed, and Shanise’s clothes in the backseat were covered with oil.
On January 30, 2005, Shanise filed a police report with Officer Timothy Harris. She said that on January 29, 2005, at 11:00 p.m., appellant had threatened her over the phone. He said, “I’m going to stab and kill you and watch you die.”
Detective Waters interviewed appellant on September 12, 2005, in jail. Appellant said that Shanise poked him and woke him up on August 31, 2005, at approximately 1:30 a.m. while he slept on the bedroom floor. Shanise told him to leave the apartment by the end of the day. He eventually slept on the bed while Shanise slept in the living room. Appellant said that Brown was not home when he arrived with K. on August 31, 2005, but later he said that Brown was present. Appellant entered the apartment after Brown left, saw that Shanise was on the phone, and believed she was talking to Toy. Appellant went to lie on the bed, face down. Shanise came in and yelled at him, but he tuned her out. He felt a warm sensation on his neck. He said he did not see Shanise with a knife, and he did not see her cut him. He did not see the kitchen knife, and he denied he had been stabbed. Appellant choked Shanise to get her away from him. As he did so, he felt a sensation on his left wrist and saw blood on it. Appellant denied stabbing Shanise. He said he habitually carried the utility knife because he was a tow truck driver.
Appellant admitted to Detective Waters that he left a message for Toy on August 29, 2005, but he did not remember if he called Toy on the evening Shanise died. He called Toy from his own phone, and he had obtained the number by looking through Shanise’s cell phone one night. He said he was not happy that Shanise and Toy were together. Appellant said several times that it bothered him to see Shanise speaking with Toy on the phone.
DISCUSSION
I. Testimony by DNA Expert and Right of Confrontation
A. Appellant’s Argument
Appellant contends he was denied the Sixth Amendment right to confront and cross-examine witnesses against him when a DNA supervisor testified to the DNA analysis done by someone else. According to appellant, this evidence is inadmissible under Melendez-Diaz v. Massachusetts (2009) 557 U.S. ___ [129 S.Ct. 2527] (Melendez-Diaz) and the evidence was prejudicial under the circumstances of his case.
B. Proceedings Below
As previously noted, Gina Pineda was an associate lab director and a technical leader for the private DNA company Cellmark. She oversaw the work that occurred in the forensics laboratory. Her daily duties were to perform case reviews, sign reports, and testify in court when needed. She had been employed by Cellmark for one year and had previously worked 12 years for Reliagene, a smaller DNA laboratory purchased by Cellmark in 2007. Both companies had done work pertaining to appellant’s case.
Pineda had a Master of Science degree in Pathology with a concentration in forensic DNA. Pineda had been a technical leader and an associate forensic director at Reliagene. She began her career by analyzing DNA samples. As she progressed, she did more supervision. She met the industry standards to be a technical leader. Pineda had qualified in court over a hundred times as an expert in DNA.
Pineda explained that qualified analysts document all of their steps in a case file or lab worksheet. When this is done, any analyst can look at the data and review it and come to his or her own conclusion. She showed the jury a power-point presentation on the nature of DNA and the process by which a sample is analyzed.
On July 7, 2006, Reliagene received a USB cable with possible blood on it, a reference blood swatch of Shanise, and a reference oral swab of appellant. Reliagene was asked to perform DNA analysis and make a conclusion as to whose DNA could or could not be found on the USB cable. The cable arrived properly sealed with adequate security and in adequate condition. According to procedure, the evidence custodian logs the case in and gives each sample a number. The samples then go to the analyst assigned to the case. The analyst takes the unknown sample, in this case, the cable, and begins by swabbing the areas of interest on the item. The blood-stained portion of the cable was swabbed for DNA, and then the DNA extraction began. A presumptive test showed that the samples were indeed blood, and then a profile was developed from the sample. A full profile was obtained, consisting of 15 areas of the DNA. Next, the analyst performed an analysis of the two known samples and obtained full profiles from those.
A comparison of the three samples was documented in a report dated July 27, 2006. There was only one donor to the cable. The profile matched the reference sample from appellant. Applying a statistical analysis to the cable sample, it was found that the frequency of this profile occurring was 1 in 146 sextillion of the Caucasian population, 1 in 146 quintillion of the Black population, and 1 in 13.8 sextillion of the Hispanic population. The frequency of the profile indicates that another match would not be found in the population of the entire earth (barring the existence of an identical twin). The population of the earth is 6 billion.
On March 31, 2008, after Reliagene was acquired by Cellmark, the laboratory received four additional samples to compare with Shanise’s and appellant’s DNA. All items were received with proper seal and adequate security. A presumptive test for blood was positive on all four items. Only one sample at a time was opened for testing. The profiles obtained were described in a report dated April 16, 2008.
The first sample was a swab of the bedroom door. It matched the known profile of Shanise. The sample from the bedroom wall near the headboard yielded a DNA profile that matched appellant. The sample obtained from the utility knife matched appellant. The profile obtained from the blade of the kitchen knife was a mixture of the DNA of two people. Neither Shanise nor appellant could be excluded as donors to the mixture on the knife blade.
The prosecutor asked Pineda if a person might leave another person’s DNA on an object if the first person touched someone who was bloody and then touched the object. Pineda said this could happen, and it was called transfer.
Pineda told the jury the details of the statistical analysis on the four later samples. Each estimated frequency was very rare. The mixed sample of two individuals on the kitchen knife showed a higher frequency in the various ethnic populations because the laboratory made no assumptions as to the number of contributors. Rather, it took into account everyone that could have contributed to the profile. For the kitchen knife sample, the frequencies for the possible combination of profiles in the Black population was 1 in 26.53 million; in the Caucasian population, 1 in 180.2 million; in the southwest Hispanic population, 1 in 313.6 million; in the southeast Hispanic population, 1 in 350 million; and in the Asian population, 1 in 195.7 million.
C. Relevant Authority
The confrontation clause of the Sixth Amendment of the United States Constitution provides that “‘[i]n all criminal prosecutions, the accused shall enjoy the right... to be confronted with the witnesses against him.’” (Crawford v. Washington (2004) 541 U.S. 36, 42 (Crawford).) The confrontation clause has traditionally barred “admission of testimonial statements of a witness who did not appear at trial unless he was unavailable to testify, and the defendant had had a prior opportunity for cross-examination.” (Id. at pp. 53-54.) “Statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.” (Davis v. Washington (2006) 547 U.S. 813, 822 (Davis).)
D. No Confrontation Clause Violation
Preliminarily, we agree with the Attorney General that appellant has forfeited the right to raise the issue on appeal. (Evid. Code, § 353; People v. Tafoya (2007) 42 Cal.4th 147, 166 [defendant’s failure to raise confrontation clause claim at trial forfeits issue on appeal]; People v. Lewis and Oliver (2006) 39 Cal.4th 970, 1028 [same].) Appellant made no objection to Pineda’s testimony. In any event, we disagree with appellant’s argument.
After the decision in Davis, the California Supreme Court was called upon to determine the admissibility of a report detailing DNA testing when the evidence was admitted by means of the testimony of a lab director who cosigned the analyst’s report. (People v. Geier (2007) 41 Cal.4th 555 (Geier).) Through analysis of the case law subsequent to Crawford, the Geier court recognized the difficulty of the threshold determination of whether evidence is testimonial or nontestimonial. The court stated it had not found any analysis of the applicability of Crawford and Davis to the type of scientific evidence at issue in Geier’s case to be entirely persuasive. (Geier, supra, at pp. 598–604, 605.) The Geier court ultimately concluded that such evidence was not testimonial based on its own interpretation of Crawford and Davis. (Geier, supra, at pp. 605–607.) Geier determined that laboratory reports are nontestimonial business records and therefore not inadmissible under Crawford and Davis. (Geier, supra, at pp. 606, 607.)
Geier described the lab reports as “a contemporaneous recordation of observable events rather than the documentation of past events, ” in which the analyst had “recorded her observations regarding the receipt of the DNA samples, her preparation of the samples for analysis, and the results of that analysis as she was actually performing those tasks.” (Geier, supra, 41 Cal.4th at pp. 605–606.) The reports were therefore not testimonial, because the analyst conducted the tests and made her report contemporaneously, “as part of her job, not in order to incriminate defendant.” (Id. at p. 607.) The notes and report “are not themselves accusatory, as DNA analysis can lead to either incriminatory or exculpatory results.” (Ibid.) “Finally, the accusatory opinions in [Geier]... were reached and conveyed not through the nontestifying technician’s laboratory notes and report, but by the testifying witness....” (Ibid.) “[T]he DNA report was not testimonial for purposes of Crawford and Davis.” (Geier at p. 607.)
Two years later, the United States Supreme Court issued its 5–4 decision in Melendez-Diaz, where the trial court had “admitted into evidence affidavits reporting the results of forensic analysis which showed that material seized by the police and connected to the defendant was cocaine. The question presented [was] whether those affidavits are ‘testimonial, ’ rendering the affiants ‘witnesses’ subject to the defendant’s right of confrontation under the Sixth Amendment.” (Melendez-Diaz, supra, 557 U.S. at p. ___ [129 S.Ct. at p. 2530].) The court determined that, since “[t]he ‘certificates’ are functionally identical to live, in-court testimony” and were made to provide prima facie evidence of the composition, quality, and weight of the analyzed substance, under Crawford they were “testimonial statements, and the analysts were ‘witnesses’ for purposes of the Sixth Amendment.” (Id. at p. ___ [129 S.Ct. at p. 2532].) The “testimonial” documents were therefore not admissible, because the analysts were not subject to cross-examination and the petitioner had no prior opportunity to cross-examine. (Ibid.) Further, the affidavits could not be characterized as near-contemporaneous, since they were completed nearly a week after the tests were performed. (Id. at p. ___ [129 S.Ct. at p. 2535].)
The California Supreme Court has recently granted review of several appellate decisions and requested briefing on the issue of whether a defendant was denied his right of confrontation when a forensic expert was allowed to testify to test results performed by another forensic expert when the results were based on the report prepared by the analyzing forensic expert. The court also requested briefing on whether Geier continued to be viable in the wake of Melendez-Diaz.
The California Supreme Court has taken up several cases on these issues: People v. Chikosi (2010) 185 Cal.App.4th 238, review granted August 11, 2010, S184190 [breathalyzer accuracy records are nontestimonial and witnesses who did not perform accuracy tests could rely on them]; People v. Bowman (2010) 182 Cal.App.4th 1616, review granted June 9, 2010, S182172 [Geier still valid]; People v. Rutterschmidt (2009) 176 Cal.App.4th 1047, review granted December 2, 2009, S176213 [Geier still valid and distinguishable from Melendez-Diaz]; People v. Gutierrez (2009) 177 Cal.App.4th 654, review granted December 2, 2009, S176620 [Geier still valid and distinguishable from Melendez-Diaz]; People v. Dungo (2009) 176 Cal.App.4th 1388, review granted December 2, 2009, S176886 [expert’s testimony based on another expert’s report inadmissible under Melendez-Diaz]; People v. Lopez (2009) 177 Cal.App.4th 202, review granted December 2, 2009, S177046 [Geier disapproved by Melendez-Diaz]. We note that the United States Supreme Court denied a petition for certiorari in Geier four days after its decision in Melendez-Diaz. (Geier, supra, 41 Cal.4th 555, cert. den. sub nom. Geier v. California (2009) ___ U.S. ___ [129 S.Ct. 2856].)
We believe that Melendez-Diaz does not relieve us of our obligation to follow Geier. In Melendez-Diaz, no laboratory analyst took the stand, and the government relied solely on a sworn report called a “certificate of analysis.” (Melendez Diaz, supra, 557 U.S. at p. ___, [129 S.Ct. at p. 2531].) In that case, in contrast to the instant case and Geier, the document was the only evidence against the defendant-there was no testimony. The evidence in the instant case would clearly be admissible without violating appellant’s Sixth Amendment rights under Geier, and, as we have noted, Geier has not been overruled. Under Geier, since appellant was given the opportunity to cross-examine Pineda, appellant was not deprived of his Sixth Amendment right to confront and cross-examine witnesses against him. (Geier, supra, 41 Cal.4th at p. 607.) Pending a decision on the cases on which the California Supreme Court has granted review, we are bound by Geier, since its facts are distinguishable from, and it is not in direct conflict with, Melendez-Diaz.
E. Harmless Error
In any event, we conclude that, even if appellant’s right of confrontation under the Sixth Amendment was violated when he was not afforded the opportunity to cross-examine the testing analyst, any error was harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 24 (Chapman).) The DNA evidence in this case was not a crucial factor in the case against appellant. Appellant admitted to stabbing Shanise. He argued only that he did so in self-defense, and both his and Shanise’s blood were on the kitchen knife. It is not reasonable to believe that a different mix of DNA on the two knives would have resulted in the jury’s believing his claim of self-defense. This is demonstrated by defense counsel’s argument that the DNA results supported appellant’s description of the events. Furthermore, as Pineda explained, the transfer of DNA occurs when a person with blood on his or her hands touches an object, which leaves the results of the DNA tests open to interpretation. There was overwhelming evidence, however, of appellant’s guilt, and his credibility was severely undermined by the difference in his story at trial from his initial statement to police. Appellant testified he did not know anything about a letter Shanise wrote to Toy and denied knowing she loved Toy. Appellant told Detective Waters he was not happy that Shanise and Toy were together, and their telephone conversations bothered him. His testimony was also internally inconsistent, claiming his relationship with Shanise was cordial, but then describing the “hate tension” in the apartment. Considering appellant’s size versus that of Shanise, and his selective lack of recall as to the occurrences on that fateful evening, appellant’s testimony in general strained credulity. The telephone calls he made from the scene of the stabbing were also highly incriminating in that they showed appellant was not injured to the degree he appeared to be when the police arrived, while Shanise apparently lay dying. Appellant can claim no prejudice.
II. Evidence of Victim’s Prior Threat Report
A. Appellant’s Argument
Appellant contends that his right to confront and cross-examine witnesses was violated when the trial court allowed introduction of a hearsay report by Shanise to the police of a threat made by appellant, which occurred approximately nine months before the stabbing. Appellant did not have the opportunity to cross-examine Shanise, and Shanise had not previously testified to the incident. The hearsay exception of Evidence Code section 1370 did not apply, since that section has been judicially determined to require a prior opportunity to cross-examine. The error was prejudicial, since the threat reflected the exact behavior with which appellant was charged.
Evidence Code section 1370 provides: “(a) Evidence of a statement by a declarant is not made inadmissible by the hearsay rule if all of the following conditions are met:
Appellant separately argues that, in addition to failing on constitutional grounds, the threat evidence did not qualify for admission under the requirements of Evidence Code section 1370, subdivision (a)(3) and subdivision (a)(4). According to appellant, the prosecution’s failure to follow proper procedures deprived appellant of due process of law under Hicks, supra, 447 U.S. 343 [state law guaranteeing a criminal defendant certain procedural rights even if not constitutionally required, may give rise to a liberty interest protected against arbitrary deprivation by the due process clause].)
We address appellant’s claims set out in his second and third issues in this section.
B. Proceedings Below
Prior to trial, the prosecutor filed a motion under Evidence Code sections 1101, subdivision (b), 1109, and 352, in which she argued for the admission of certain prior acts by appellant. The prior acts included a report by Shanise to police on January 29, 2005, in which she said appellant made a threat against her. The motion also described other incidents that occurred in 1998 and 1999 when Shanise and appellant were dating. There were also incidents in January and February 2005. The prosecutor stated that the prior acts were admissible under Evidence Code section 1101, subdivision (b) to show appellant’s intent. As acts of domestic violence, the prior incidents were admissible under Evidence Code section 1109, also. The prosecutor argued that the evidence of the earlier acts was highly probative in its tendency to negate a self-defense claim, and it carried minimal prejudicial value, since they were not inflammatory or remote, presented little or no possibility of confusion, and would take up little time. The threat by appellant was also relevant to appellant’s state of mind.
Evidence Code section 1101, provides in pertinent part: “(a) Except as provided in this section and in Sections 1102, 1103, 1108, and 1109, evidence of a person’s character or a trait of his or her character (whether in the form of an opinion, evidence of reputation, or evidence of specific instances of his or her conduct) is inadmissible when offered to prove his or her conduct on a specific occasion. [¶] (b) Nothing in this section prohibits the admission of evidence that a person committed a crime, civil wrong, or other act when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity...) other than his or her disposition to commit such an act.”
Evidence Code section 1109 provides in pertinent part: “(a) Except as provided in subdivision (e) or (f), in a criminal action in which the defendant is accused of an offense involving domestic violence, evidence of the defendant’s commission of other domestic violence is not made inadmissible by Section 1101 if the evidence is not inadmissible pursuant to Section 352. [¶]... [¶] (c) This section shall not be construed to limit or preclude the admission or consideration of evidence under any other statute or case law....”
Evidence Code section 352 provides: “The court in its discretion may 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.”
At the hearing on the motion, the trial court stated it would allow the prosecution to present only the evidence of the incident where it was alleged that appellant had threatened to stab the victim and watch her die. The court found the evidence admissible under Evidence Code section 1101, subdivision (b), assuming the prosecution could lay a foundation for it. The court would give a limiting instruction because it was not being offered for the truth, but rather to show motive, intent, and preparation. The court stated that an Evidence Code section 402 hearing would be held at defense counsel’s request before any witness to that incident testified.
The prosecutor did not present evidence of the threat during her case-in-chief. After appellant testified, the prosecutor requested permission to bring in the officer to whom Shanise reported the threat. Defense counsel stated, “I would ask, your Honor, that a foundation be laid.” Although the court had ruled for the prosecution on “the 1101, ” the court had not ruled on the underlying foundational requirements with respect to hearsay. Officer Timothy Harris was called to testify outside the presence of the jury in order to lay a foundation before the evidence was introduced.
After his testimony, defense counsel argued that there was insufficient foundation to establish that Shanise’s statement was an excited utterance. The statement also did not qualify under a state-of-mind exception, since it was not offered to explain Shanise’s subsequent conduct. Officer Harris testified that he did not recall if Shanise was afraid. Counsel argued there was no applicable exception to the hearsay rule.
The prosecutor then argued that, under Evidence Code section 1370, Shanise’s statement was not inadmissible under the hearsay rule because it explained the threat of physical injury upon her. The statement met all the requirements of that statute. The trial court allowed, “just the one statement that appears to comply with Evidence Code section 1370.”
Officer Harris testified in front of the jury that, at approximately 10:45 a.m. on January 30, 2005, Shanise went to the Southwest Division police station in Los Angeles and reported to him that appellant had threatened her. She stated that her husband had said over the phone, “I’m going to stab and kill you and watch you die.” The threat had occurred the night before at 11:00 p.m.
C. Admission Under Evidence Code Section 1370
A finding that evidence is admissible under Evidence Code section 1370 is reviewed for abuse of discretion. (People v. Hepnandez (1999) 71 Cal.App.4th 417, 424–425; see also People v. Waidla (2000) 22 Cal.4th 690, 717.)
When statements admitted under Evidence Code section 1370 are determined to be “testimonial, ” it appears that the statute as applied conflicts with the holding in Crawford. Evidence Code section 1370 was enacted in 1996 and is not a firmly rooted hearsay exception for confrontation purposes. (Stats. 1996, ch. 416, § 1, p. 2686; People v. Kons (2003) 108 Cal.App.4th 514, 523.) The statute has, however, withstood constitutional challenges due to its “particularized guarantees of trustworthiness” under Ohio v. Roberts (1980) 448 U.S. 56, 66. (People v. Hernandez, supra, 71 Cal.App.4th at pp. 423–424.) Since the decision in Crawford, the viability of the statute has been undermined, and testimonial statements admitted under Evidence Code section 1370 would now “only be consistent with the confrontation clause of the Sixth Amendment of the United States Constitution if [the defendant] had a prior opportunity to cross-examine [the declarant]. [Citation.]” (People v. Price (2004) 120 Cal.App.4th 224, 238 (Price).) Price interpreted the trustworthiness prong of Evidence Code section 1370, subdivision (a)(4) as requiring such prior opportunity to cross-examine. (Id. at p. 239.) Applying this interpretation in the instant case, we are obliged to conclude that the trial court abused its discretion in admitting the disputed evidence under Evidence Code section 1370, and that its admission under that statute was unconstitutional.
D. Nonhearsay; Harmless Error
In this case, the evidence of Shanise’s statement to Officer Harris could have been admitted as circumstantial evidence of her state of mind with respect to appellant, which was one of fear. (See D’Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 19 [trial court’s ruling upheld if correct in law but based on wrong reason].) Although Officer Harris did not testify that Shanise expressly stated she was afraid, the fact that she went to the police station on the morning after receiving the threat speaks for itself.
“Statements by a victim concerning the defendant’s prior conduct such as threats made to [her] tend to establish the victim’s state of mind towards the defendant, namely, fear of him, and may be admitted where that state of mind is in issue. [Citation.] Such statements are not admitted to show the truth of the matter asserted, that the threats were made, or the defendant’s conduct in conformity therewith. They are instead admitted to show the victim’s conduct in conformity with [her] state of mind. [Citation.] For example, where the defendant claims self defense or that the killing was accidental, then statements by the victim showing his fear of the defendant may be admitted to show that the victim would not likely have been an aggressor against the defendant or would not likely have allowed himself to be in the position in which the defendant claims the accident occurred. [Citation.]” (People v. Garcia (1986) 178 Cal.App.3d 814, 822.)
Here, the statement Shanise made to the officer clearly served the purpose of demonstrating her fearful state of mind with respect to appellant and to negate the possibility she would have attacked appellant while only her daughter was in the apartment. The statement was relevant and was not hearsay. As nonhearsay, the statement’s admission did not constitute a violation of appellant’s Sixth Amendment right to confrontation. (Crawford, supra, 541 U.S. at pp. 59-60, fn. 9.) Furthermore, as we have stated previously, appellant forfeited his right to claim error under the confrontation clause by failing to object on this ground below. (People v. Lewis and Oliver, supra, 39 Cal.4th at p. 1028, fn. 19.) And, although the trial court did not give the jury an instruction limiting the use of this particular evidence to its use as proof of the victim’s state of mind, appellant did not request such an instruction. (People v. Richards (1976) 17 Cal.3d 614, 618-619 [failure to request a limiting instruction precludes defendant from appealing this issue].) A general limiting instruction was given. (CALCRIM No. 303.)
Even assuming Shanise’s statement was deemed to have been offered for its truth and admitted in violation of appellant’s Sixth Amendment confrontation rights, however, any error was harmless. Confrontation clause violations are subject to federal harmless-error analysis under Chapman. (Delaware v. Van Arsdall (1986) 475 U.S. 673, 684.) “‘Since Chapman, we have repeatedly reaffirmed the principle that an otherwise valid conviction should not be set aside if the reviewing court may confidently say, on the whole record, that the constitutional error was harmless beyond a reasonable doubt.’ [Citation.]” (Geier, supra, 41 Cal.4th at p. 608.)
In this case, the answer is surely in the affirmative. The evidence was offered only in rebuttal after appellant had testified that, to his knowledge, Shanise had no reason to be afraid of him. As rebuttal evidence, the threat was not a material part of the prosecution’s case, and other evidence revealed that Shanise had reason to fear appellant in any event. (See People v. Young (2005) 34 Cal.4th 1149, 1199.) The prosecutor made no mention of the threat during closing argument.
Moreover, the record contains overwhelming evidence of appellant’s guilt, as we have previously observed. Evidence much more inflammatory than the prior threat was found in the evidence of the phone calls appellant had after stabbing Shanise, which were played for the jury. Appellant told Toy and Michael that he had just killed Shanise. (See People v. Cage (2007) 40 Cal.4th 965, 991–992 [harmless error when testimonial statements admitted without cross-examination of declarant, since verdict would not have been different had statements not been admitted].)
III. Instances of Alleged Prosecutorial Misconduct
A. Appellant’s Argument
Appellant complains of nine individual instances of prosecutorial misconduct and also argues that the cumulative effect of these incidents resulted in a miscarriage of justice, an unfair trial, and a violation of due process.
B. Relevant Authority
“A prosecutor’s conduct violates a defendant’s constitutional rights when the behavior comprises a pattern of conduct so egregious that it infects ‘“the trial with unfairness as to make the resulting conviction a denial of due process.” [Citation.]’ [Citation.] The focus of the inquiry is on the effect of the prosecutor’s action on the defendant, not on the intent or bad faith of the prosecutor. [Citation.] Conduct that does not render a trial fundamentally unfair is error under state law only when it involves ‘“‘the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury.’” [Citations.]’ [Citation.]” (Mendoza, supra, 42 Cal.4th at p. 700.)
“A defendant’s conviction will not be reversed for prosecutorial misconduct, however, unless it is reasonably probable that a result more favorable to the defendant would have been reached without the misconduct. [Citation.]” (People v. Crew (2003) 31 Cal.4th 822, 839.)
C. Forfeiture
Respondent argues that appellant’s counsel did not make a specific assignment of misconduct and did not request that the jury be admonished to disregard the improprieties he now sets out on appeal. Further, appellant does not discuss this failure in his opening brief. Respondent argues that the alleged prosecutorial misconduct issues have been forfeited.
“‘As a general rule a defendant may not complain on appeal of prosecutorial misconduct unless in a timely fashion-and on the same ground-the defendant made an assignment of misconduct and requested that the jury be admonished to disregard the impropriety. [Citation.]’... [¶] The foregoing, however, is only the general rule. A defendant will be excused from the necessity of either a timely objection and/or a request for admonition if either would be futile. [Citations.] In addition, failure to request the jury be admonished does not forfeit the issue for appeal if ‘“an admonition would not have cured the harm caused by the misconduct.”’ [Citations.] Finally, the absence of a request for a curative admonition does not forfeit the issue for appeal if ‘the court immediately overrules an objection to alleged prosecutorial misconduct [and as a consequence] the defendant has no opportunity to make such a request.’ [Citations.]” (People v. Hill (1998) 17 Cal.4th 800, 820.)
The record shows that defense counsel did not object to any of the complained-of instances on the basis of prosecutorial misconduct, nor did he request an admonition based on this ground. None of the exceptions to these requirements apply in this case. In any event, appellant’s contentions are without merit.
D. Instances of Alleged Misconduct
1. Introduction of Photographs of the Victim’s Body
Appellant contends the prosecutor committed misconduct in showing certain photographs of the victim during trial. Appellant also argues that the trial court erred in admitting the limited number of photographs it allowed to be presented to the jury. In addition, appellant contends that the trial court erred when it denied defense counsel’s mistrial motion, which followed introduction of the photographs of the victim’s face during the coroner’s testimony.
Appellant’s argument regarding the alleged error by the trial court is contained in appellant’s sixth issue. His argument regarding the denial of a mistrial motion based on the photographs is discussed in his seventh issue. We address the alleged trial court errors in conjunction with the allegation of prosecutorial misconduct with regard to the photographs.
After the prosecutor exhibited two photographs of the victim’s body, defense counsel asked for a sidebar. He believed the photographs were likely to inflame the passions of the jury, and they were not necessary for the coroner to testify. The trial court allowed the prosecutor to present two photographs of the victim’s body.
During the coroner’s testimony, the prosecutor showed two photographs (People’s exh. Nos. 76 & 77) of the victim’s face. These photographs apparently caused an emotional outburst by members of Shanise’s family. The trial court ordered the jurors to leave the courtroom, and defense counsel informed the court that an alternate was crying as she left. The trial court admonished the victim’s family and ordered one female to leave the courtroom. Defense counsel’s motion for a mistrial was denied. The trial court chided the prosecutor, stating, “Again, Ms. Derringer, this is something that certainly could have and should have been contemplated. That’s why the coroner is called on to testify because they are experts and they can explain these things without having graphic photographs.”
“‘“The admission of photographs of a victim lies within the broad discretion of the trial court when a claim is made that they are unduly gruesome or inflammatory. [Citations.] The court’s exercise of that discretion will not be disturbed on appeal unless the probative value of the photographs clearly is outweighed by their prejudicial effect. [Citations.]” [Citation.]’ [Citation.]” (People v. Smithey (1999) 20 Cal.4th 936, 974; see also People v. Gurule (2002) 28 Cal.4th 557, 624; People v. Hughes (2002) 27 Cal.4th 287, 336–337.)
No misconduct or trial court error arose from introduction of the photographs. Their relevance was beyond question, since photographs of murder victims are always relevant. (People v. Vieira (2005) 35 Cal.4th 264, 293; People v. Lucas (1995) 12 Cal.4th 415, 448–450 [photographs of autopsy and murder scene admissible because, inter alia, they were relevant to corroborate and illustrate the coroner’s testimony regarding the wounds and witness’s testimony regarding the location and placement of the bodies].) “‘The prosecutor “‘was not obliged to prove these details solely from the testimony of live witnesses’ [citation] or to accept antiseptic stipulations in lieu of photographic evidence. ‘[T]he jury was entitled to see how the physical details of the scene and the bod[ies] supported the prosecution theory....’” [Citation.]’ [Citations.]” (People v. Scheid, supra, 16 Cal.4th at p. 16; People v. Gurule, supra, 28 Cal.4th at p. 624.)
In the context of this case, the photographs were not unduly prejudicial. The record shows that only one juror, an alternate, was seen by defense counsel to weep. And, although the two photographs of the victim’s face may have been unpleasant, they were not unduly gruesome and were clearly relevant to show the signs of strangulation about which the coroner had testified. The photographs helped impress upon the jury that Shanise was stabbed after being rendered helpless, which was contrary to appellant’s claim of self-defense. The other photographs that the trial court allowed did not cause any emotional reaction from the spectators. As our Supreme Court has observed, “‘“victim photographs and other graphic items of evidence in murder cases always are disturbing. [Citation.]” [Citations.]’ [Citation.]” (People v. Smithey, supra, 20 Cal.4th at p. 974; People v. Heard (2003) 31 Cal.4th 946, 976–977 [although photographs of victim were “unquestionably unpleasant” and “not easy to look at, ” they were not unduly gory or inflammatory, nor were they likely to inflame the jury].) None of the photographs were used at trial in such a way as to inflame the passions of the jury.
Despite the trial court’s chiding of the prosecutor, the “fact that the photographic evidence may have been cumulative to other evidence does not render it inadmissible [citation], although the trial court should consider that fact when ruling on a motion to exclude evidence pursuant to Evidence Code section 352.” (People v. Gurule, supra, 28 Cal.4th at p. 625; People v. Smithey, supra, 20 Cal.4th at p. 974 [“We repeatedly have rejected the argument that victim photographs should have been excluded under Evidence Code section 352 simply because they were cumulative of other evidence”].)
Finally, we have reviewed the photographs in question and do not believe the trial court erred by admitting them. It is clear the trial court understood and met its obligation to weigh the probative value of the evidence against its prejudicial effect; indeed, the trial court excluded certain photographs it deemed too gruesome. The photographs that were admitted had considerable probative value.
Even if the photographs were admitted in error, we discern no prejudice. The photographs were no more gruesome than the testimony describing the victim’s injuries. (People v. Heard, supra, 31 Cal.4th at p. 977; People v. Smithey, supra, 20 Cal.4th at p. 974.) Common sense would indicate to the jurors that Shanise’s family, who were apparently assiduous in their trial attendance, would be upset by any evidence, visual or otherwise, of Shanise’s last moments. The trial court admonished the jury, stating, “Ladies and Gentlemen, as I indicated in my pre-instructions and as you’ll hear in the court’s final instructions, you’re not to consider anything that is said other than from the witness stand, and that would include any emotional outbursts in the courtroom. Because of the emotional attachment of some of the spectators there apparently was an outburst as a result of the current exhibit that seemed to have affected some of you, that is not evidence, it is not to be considered by you. The People have a right to present evidence to prove their case. The court has approved the use of the exhibits that you are seeing, and I understand that it’s not the sort of thing that any of you are used to, but again, you’re going to have to try to keep your emotions intact.”
In addition, as we have explained, the evidence against appellant was overwhelming. If there was any misconduct or error, it was harmless under any standard. There is no likelihood the jury was improperly swayed by the introduction of the photographs. (People v. Heard, supra, 31 Cal.4th at p. 977; People v. Hines (1997) 15 Cal.4th 997, 1046.) We reject appellant’s arguments with respect to prosecutorial misconduct and trial court error in admitting the photographs and in denying a mistrial based on their introduction.
2. Attempt to Introduce Hearsay Through Shanise’s Mother
Prior to the testimony of Edwards, defense counsel requested a hearing under Evidence Code section 402. The prosecutor told the court that the background information she would elicit would be brief. The mother had information regarding the events leading up to the killing as well as appellant’s motive and intent. The defense was concerned that some of the past bad acts by appellant that the trial court had not allowed the prosecutor to introduce would be brought out through the mother. The trial court ascertained that the prosecutor had informed the witness that her testimony was limited to her personal knowledge rather than things Shanise told her. It was not to include events that occurred weeks or months in the past. The following instances are characterized by appellant as prosecutorial misconduct in the direct examination of Edwards:
(1) During direct examination, the prosecutor asked how Edwards became aware that appellant had left Los Angeles, and Edwards said that Shanise had told her. The trial court sustained a hearsay objection. A few questions later, the prosecutor asked, “Did you have a conversation with your daughter about Hakeem?” Instead of answering “yes” or “no, ” Edwards responded, “She had mentioned she was going to go to where he was.” The trial court overruled this objection “inexplicably, ” according to appellant.
(2) The prosecutor subsequently asked Edwards why she began staying in Shanise’s apartment, and Edwards gave several reasons, one of which was that Shanise no longer had access to a car. The prosecutor asked what happened to Shanise’s vehicle, and the trial court sustained an objection.
(3) The prosecutor later asked Edwards what happened while Edwards and Brown were driving in their car on the evening of the murder, and Edwards responded that Toy called her cell phone. The prosecutor asked if Toy had played a message for Edwards that had been left on his home phone, and defense counsel objected. Although the prosecutor stated, “It’s a defendant’s admission, your Honor, ” the trial court sustained the objection. At sidebar, the trial court told the prosecutor that Edwards could testify only that there was a message that was played and that she recognized the voice. The recording of the call could be played when Toy testified.
(4) After Edwards had identified the voice on the message as appellant’s, the prosecutor asked, “What was it that the defendant said that you heard?” The trial court sustained the defense objection, stating, “We already covered that.” The prosecutor said, “All right. So we’re going to do that later.”
(5) When Edwards attempted to say that the police “informed [her]” about K.’s whereabouts, the defense asked for a sidebar. When the prosecutor explained what information she was seeking, the trial court questioned its relevance. The trial court also warned the prosecutor about Edwards’s demeanor and admonished her to be careful in her questioning.
(6) As the prosecutor was preparing to show Edwards the knife used in the stabbing, defense counsel in a sidebar objected to introduction of the knives. He argued it was a dramatic display to inflame the jury’s passions. The prosecutor responded that Edwards was able to identify the knife as one of the set that she now had in her possession. The trial court said that Evidence Code section 352 applied and told the prosecutor to move on. He allowed the prosecutor to show Edwards a photograph of the knife, and she identified it as one that matched the knife block at her home.
We believe that these instances, if any were to be deemed misconduct, were not prejudicial to appellant. In the first instance of alleged misconduct, Edwards’s response was not the one elicited by the prosecutor’s question, and the trial court’s overruling of the objection undoubtedly reflected its recognition that Edwards had been nonresponsive, and, in any event, no harm had been done. In the succeeding instances of alleged prosecutorial misconduct in the direct examination of Edwards, the record shows that the trial court intervened before any objectionable answer was spoken in front of the jury. The fact that the prosecutor once blurted out, “It’s a defendant’s admission... ” and mistakenly began to elicit the contents of the message was not prejudicial, since the entire message was later played for the jury in any event.
3. Cumulative Testimony from Shioban Causing Emotional Display
After the prosecutor’s second question in her direct examination of Shioban, defense counsel asked for a sidebar. Defense counsel argued that Shioban’s testimony would be cumulative to Edwards’s and that there would be constant emotional outbursts. The court stated for the record that the witness had begun crying after the first question was asked. The prosecutor gave her offer of proof, which the trial court challenged at every turn. The trial court ruled that it would allow limited information concerning Shioban’s observations of her sister’s receiving certain messages and a conversation at a laundromat on a certain date. The trial court said, “If she can’t keep her composure I’ll cut her off.” After the prosecutor explored the limited area permitted, she asked Shioban about the beginning of Shanise’s relationship with appellant. The trial court sustained a defense objection. The trial court then granted a sidebar to the prosecutor. The prosecutor explained that she wished to question Shioban about her knowledge of appellant’s habitually carrying a knife in the past and once lending it to Shioban to take care of a problem with a man. The defense argued that this had not been included in the People’s motion to introduce prior bad acts, and the trial court ruled it could not come in because the defense was untimely advised of it.
The prosecutor was not responsible for Shioban’s emotional state at trial, which was also not prejudicial to appellant under the circumstances of this case. The jury was instructed not to be influenced by sympathy. The rest of the evidence the prosecutor sought to introduce was not allowed despite its relevance, and no prejudice resulted.
4. Questions to Appellant About Other Witnesses Lying
During her cross-examination of appellant, the prosecutor noted that appellant’s testimony was contradicted by the testimony of other persons, and she asked appellant if the other persons were lying. Appellant acknowledges that such questions are not improper per se but argues that, in this case, they were used to berate appellant and were argumentative.
Questions such as those posed to appellant in this case are proper if a defendant “has personal knowledge whether other witnesses who describe those events are testifying truthfully and accurately.” (People v. Chatman (2006) 38 Cal.4th 344, 382; People v. Riggs (2008) 44 Cal.4th 248, 318.) All such questions need not be excluded as improper. (Riggs, at p. 318.)
In People v. Hawthorne (2009) 46 Cal.4th 67, the prosecutor asked if the arresting officer was lying while testifying regarding the facts related to the arrest. (Id. at p. 96.) Our Supreme Court found the “‘was he lying’” question did not constitute misconduct, reasoning that the defendant was a percipient witness to the events at issue and had personal knowledge regarding whether the other witnesses describing the same events were testifying truthfully. (Id. at p. 98.)
In this case, appellant had personal knowledge of whether the witnesses were truthful and accurate or not. Appellant was able to say that Brown was lying, that K. was mistaken, and that the prosecutor had misinterpreted Anastasia’s testimony. Therefore, he was “able to provide insight on whether witnesses whose testimony differs from his own [were] intentionally lying or... merely mistaken.” (People v. Chatman, supra, 38 Cal.4th at p. 382.) His responses to these questions were therefore relevant to his credibility and to that of the other witnesses, and were not merely argumentative. (Ibid.)
In any event, the posing of the “lying” questions was not prejudicial, and it is not reasonably likely they affected the verdict in light of the overwhelming evidence of appellant’s guilt. (People v. Zambrano (2004) 124 Cal.App.4th 228, 243 [misconduct not prejudicial even when prosecutor continually berated the defendant with “[were they] lying” questions].) The questions related to matters that were not critical to appellant’s claim of self-defense.
5. Prosecutor’s Questioning of Anastasia
The prosecutor requested a sidebar and presented her offer of proof regarding the testimony of Linda Robinson and Anastasia. The trial court excluded the testimony of Linda Robinson and limited Anastasia’s testimony to one incident, which occurred when appellant was visiting Shanise’s apartment a few days before the murder.
Anastasia testified that appellant was “close to” yelling at Shanise for almost half an hour. Shanise just sat there and looked at the floor. On cross-examination, defense counsel asked Anastasia if the prosecutor had asked her during their interview if appellant had been mean to her sister, and Anastasia acknowledged that she had been asked that question. On redirect, the prosecutor asked Anastasia, “Counsel asked you if I asked you questions if Hakeem had been mean to Shanise and you said yes, right?” The prosecutor then asked if Anastasia had related other mean things that appellant had done to her sister. The prosecutor also asked what those things were. Defense counsel objected as beyond the scope, and the objection was sustained.
We conclude that the prosecutor’s questioning in this instance was not beyond the scope of the cross-examination, since the trial court sustained defense counsel’s objection before any more mean things were related by Anastasia. We do not fault the prosecutor for believing that defense counsel had opened the door to other instances of appellant’s being mean by his questions to Anastasia. Cross-examination, which is limited to “[matters] within the scope of the direct examination” by Evidence Code section 773, “may be directed to the eliciting of any matter which may tend to overcome or qualify the effect of the testimony given... on direct examination.” (People v. Pike (1962) 58 Cal.2d 70, 90.) In any event, appellant suffered no prejudice by the mere question as to what other mean things had occurred. Anastasia had already said that appellant had been mean to Shanise and Shanise had not been mean to appellant.
6. Attempts to Elicit Hearsay Statements Made by Shanise to Brown
Appellant contends that the prosecutor gave the jury the impression that the defense was hiding something by asking the same question repeatedly-a question designed to elicit hearsay-and thus requiring defense counsel to continually object. The prosecutor asked Brown about the moment when Shanise woke him up and asked him to get appellant out of her bed. Appellant was upset, and he told Brown he was in the bedroom because K. was crying. The prosecutor attempted to elicit from Brown what Shanise had said to contradict that. Defense counsel objected, and the objection was sustained. The prosecutor rephrased her question to ask what happened next, but Brown responded with “Shanise told me....” Defense counsel objected, and the objection was sustained. A few questions later, the prosecutor asked, “Without saying what she said, did Shanise say something that contradicted what the defendant....” The trial court sustained the defense objection. The prosecutor then asked, “So what do you remember happening next?” Brown replied, “Yes, Shanise came into the front room and said ‘forget it’-” The trial court sustained the objection and struck part of the response. A few questions later, the prosecutor asked, “And you said then after the five or 10 minutes of you going back and forth with Hakeem is when she just said, ‘I’m going to the front room?’” The trial court sustained the defense objection and said, “That was already stricken, Ms. Derringer.”
The record shows that in two of the five instances of which appellant complains, Brown responded with hearsay when the prosecutor did not attempt to elicit hearsay. The prosecutor thus was not the cause of defense counsel’s need to object. Although the prosecutor appeared to elicit hearsay in the other questions, the same information was elicited in nonhearsay form, i.e., that Shanise left the bedroom instead of appellant because he refused to do so, that she was upset, and that appellant tried to have her come back to the bedroom. Therefore, appellant suffered no prejudice.
7. Repeating Answer in Question and Leading
Appellant points out that the trial court admonished the prosecution for repeating the witness’s answers when asking a follow-up question. This occurred after defense counsel requested a sidebar and objected on the basis of Evidence Code section 352 to the prosecutor’s line of questioning to Brown. Defense counsel stated that the prosecution was drawing out the examination and causing counsel to object, which he believed might cause the jury to think he was trying to hide something. The trial court sustained the objection and told the prosecutor that she had been going over the same testimony for 30 minutes, and she kept repeating the witness’s answers as a prologue to asking the same question. The trial court stated that defense counsel had not objected every time, since counsel was correct that it would appear he was trying to keep something from the jury if he did. The prosecutor stated she did not do it intentionally. Later, during direct examination of Detective Waters, the trial court stated in a sidebar, “The problem you have is that you like to regurgitate the testimony as a prelude to asking a question. That’s not necessary. And that’s the objection, was that it’s cumulative. But it’s not just cumulative, it’s obviously leading. But you don’t need to repeat what’s already been testified to. The jurors heard it the first time. They don’t need to hear it three or four more times.” The court told the prosecutor that if she could not phrase the question so that she was not rehashing previous testimony, she could not ask the question.
Our review of the purportedly leading questions by the prosecutor show nothing approaching “‘“‘the use of deceptive or reprehensible methods to attempt to persuade’”’” the jury or conduct “so egregious that it infects ‘“the trial with such unfairness as to make the resulting conviction a denial of due process.”’” (Mendoza, supra, 42 Cal.4th at p. 700.) Furthermore, even if we could find misconduct in the prosecutor’s inept method of questioning, we would not conclude that it was prejudicial under the facts of this case. There is no reasonable probability that absent the asking of leading questions a result more favorable to appellant would have been reached. (People v. Barnett (1998) 17 Cal.4th 1044, 1133.) “A perusal of the questions complained of discloses that they...” produced “evidence that could properly have been elicited by questions not objectionable in form.” (See People v. Hayes (1971) 19 Cal.App.3d 459, 470.)
8. Impeachment with Collateral Matters
Appellant complains that the prosecution impeached appellant with incidents that the trial court had excluded in the prosecution’s case-in-chief. When appellant denied these behaviors, the prosecutor used the denial as an excuse to introduce the prior bad acts evidence that had been excluded. Also, the questions implied to the jury that the prosecutor had knowledge of events outside the record. Appellant contends that, since he did not present evidence about these incidents on direct examination, and the denials were the consequence of the prosecutor’s questions, the impeachment was improper and the subsequent admission of the prior uncharged acts was also improper. According to appellant, the technique was a device to circumvent the court’s exclusion of evidence. Further, appellant had not introduced evidence of his good character and had not opened the door to such an inquiry. Appellant contends that the weight of the bad character evidence denied him a fair trial and due process of law. He argues that admission of this evidence was misconduct for the prosecutor and error for the court to allow it.
As we have noted, Evidence Code section 1101, subdivision (c) provides that “Nothing in this section affects the admissibility of evidence offered to support or attack the credibility of a witness.” (See also People v. Kennedy (2005) 36 Cal.4th 595, 620 [“evidentiary limitations on the use of evidence of specific instances of prior misconduct... do not apply to evidence offered to support or attack the credibility of a witness”].) Here, several of appellant’s statements on the stand attested to his lack of hostility to Shanise and his calm disposition, and the prosecutor was entitled to challenge this under the circumstances of this case. “Although a defendant cannot be compelled to be a witness against himself, if he takes the stand and makes a general denial of the crime with which he is charged, the permissible scope of cross-examination is ‘very wide.’ [Citation.] When a defendant voluntarily testifies, the district attorney may fully amplify his testimony by inquiring into the facts and circumstances surrounding his assertions, or by introducing evidence through cross-examination which explains or refutes his statements or the inferences which may necessarily be drawn from them. [Citation.] A defendant cannot, by testifying to a state of things contrary to and inconsistent with the evidence of the prosecution, thus indirectly denying the testimony against him, but without testifying expressly with relation to the same facts, limit the cross-examination to the precise facts concerning which he testifies. [Citation.]” (People v. Cooper (1991) 53 Cal.3d 771, 822.) A defendant who elects to testify has no right to cloak himself in a false aura of credibility. (People v. Westek (1948) 31 Cal.2d 469, 476–477.) This is especially true if a defendant asserts that he is peaceful and has never committed an offense of the kind charged. (See, e.g., id. at pp. 476–481.)
To the extent that the questions were improper, any alleged error was harmless because it is not reasonably probable that a jury would have reached a more favorable result or believed appellant’s version of events. (People v. Crew, supra, 31 Cal.4th at pp. 839–840.)
Finally, it is true that the trial court excluded an incident at a day care center because it was irrelevant, since Shanise was not there when it occurred. The prosecutor nonetheless asked about it. We believe the mention of this incident was not prejudicial given the quantity of evidence showing appellant’s guilt. Questioning regarding the incident was cut short by a sustained objection.
9. Attempt to Ask Questions That Invaded the Attorney-Client Privilege and Argumentative Questioning
The prosecutor showed appellant a photograph of a cell phone on a counter and asked him if he recalled seeing the photograph before. When he said he did not, the prosecutor asked him if he had reviewed the crime scene photographs in assisting his attorney in his defense, and appellant replied that he had not. After asking appellant if he was familiar with his rights and aware of what was available to him as a defendant, and if he had “no idea what evidence is involved in this case, ” she asked, “and are you saying you never even asked about the evidence in this case?” The defense objected and asked for a sidebar. The trial court sustained the defense objection based on questions that elicited a breach of the attorney-client privilege. The defense moved for a mistrial. The prosecutor explained that she was trying to establish appellant’s awareness of the evidence in this case.
The trial court did not understand the purpose of the questions and reminded the prosecutor that defense counsel was concerned about the impression he believed the prosecutor was trying to give the jury. The trial court found that the questions about attorney-client relationship were “entirely improper, ” and the line of questions the prosecutor had posed about appellant’s trying to control the prosecutor’s questions was argumentative. The trial court denied the mistrial motion and told the prosecutor, “You need to watch where you’re going with these questions. You’re getting very close.”
Although the trial court agreed with defense counsel that the prosecutor was skirting subjects protected by attorney-client privilege, we do not perceive any breach of such privilege. The prosecutor attempted to show that appellant was being less than candid about what he recalled, and she asked perhaps too many questions regarding appellant’s knowledge of the evidence. The record confirms that appellant was evasive in his testimony and often stated he did not recall occurrences that reflected unfavorably upon him while recalling very well those details that bolstered his version of events. He often disputed the prosecutor’s choice of words rather than answer the question. For example, when asked if he had been reviewing the evidence and the exhibits in the case as they came in, appellant said he had seen them but had not been reviewing them. He often sidestepped questions by providing a response that avoided a direct answer. For example, he diverted the prosecutor’s questioning about Shanise’s cell phone on the counter into a discussion of the photograph of that cell phone. When the prosecutor asked appellant if he stabbed Shanise seven times, appellant said “yes.” When asked if he killed her, however, appellant said “she died from the stab wounds.” When the question was repeated, appellant said, “she died from the stab wounds, yes.” The prosecutor was correct, although perhaps argumentative, when she asked appellant if he was not attempting to control the questions that the prosecutor asked, and the line of questioning in dispute illustrates his success in doing so. The prosecutor was perhaps too little in control of her frustration, but we do not find that she employed deceptive or reprehensible methods to deceive the jury. The jury would likely view her argumentativeness as petulance that reflected poorly on her, although appellant’s manipulation of the questioning would not be lost on the jury either. And in any event, the questions asked about appellant’s knowledge of the evidence could have no bearing on the outcome of the case. We see no prejudice.
E. Cumulative Effect of Prosecutorial Misconduct
We have concluded that appellant suffered no prejudice from each of the instances of alleged misconduct that he has presented. We do not believe these instances had a cumulative effect of denying appellant a fair trial. The trial court made adequate responses to the defense objections, and the jury was clearly able to perceive that the trial court often sided with the defense. The evidence against appellant’s version of events was very strong. Under the circumstances, we believe there is no reasonable possibility that instances of alleged prosecutorial misconduct, whether considered singly or in combination, affected the verdict. As stated previously, the evidence against appellant was overwhelming.
IV. Alleged Trial Court Error in Admitting Various Instances of Appellant’s Prior Bad Acts and Lack of a Limiting Instruction
This issue was addressed as appellant’s fifth issue in his opening brief.
A. Prior Bad Acts
1. Appellant’s Argument
Appellant discusses at length the admissibility of evidence under Evidence Code sections 1101, subdivision (b), and 1109 and argues that the trial court failed to properly apply the filter of Evidence Code section 352, which is the prerequisite to constitutional application of those sections. Appellant also argues that Evidence Code section 1109 as written and as applied in this case is violative of the due process clause, as was the trial court’s failure to provide a meaningful limiting instruction.
Appellant clearly refers to the evidence the prosecution described in its motion, which we have previously discussed in issue No. II. Appellant first argues that most of the numerous acts admitted did not fit within the definition of domestic violence in Evidence Code section 1109. He specifically complains that: (1) the stabbing threat that Shanise reported to the police did not constitute an imminent threat and was inadmissible hearsay; (2) the grabbing of Shanise causing bruising was an abuse of discretion because of its questionable reliability; (3) appellant’s being mean to Shanise, speaking loudly to her, and not being a loving and good husband did not qualify as domestic violence; (4) evidence that appellant vandalized Shanise’s car was unreliable, and the act did not constitute domestic violence; and (5) evidence that appellant threw a barbecue up the stairs was not domestic violence. According to appellant, these incidents should not have been admitted under Evidence Code sections 1109 and 352.
With respect to admission under Evidence Code section 1101, subdivision (b), appellant argues that admission of the stabbing threat to show intent was invalid, since this theory was not viable to that incident or any other. The vandalism of Shanise’s car was merely property damage and did not translate into an intent to do bodily harm. Also, instances of appellant’s not being loving did not show intent for premeditated murder.
Finally, appellant argues, admission under Evidence Code section 1101, subdivision (a), was not applicable either, since appellant did not open the door to evidence of his bad character. Appellant contends that, for the reasons discussed in the previous section, the acts were also not properly admitted as impeachment.
2. Evidence Properly Admitted
We believe the evidence was properly admitted to show motive and intent in this murder case in which appellant claimed self-defense. Evidence that tended to show that appellant hurt Shanise and committed acts designed to punish her and intimidate her into submission in the past had significant probative value to establish appellant’s motive for committing the charged offenses, i.e., to punish her and bring her under his control. (See People v. Hillhouse (2002) 27 Cal.4th 469, 504 [“Motive describes the reason a person chooses to commit a crime”].) It follows that evidence demonstrating appellant’s motive for committing the charged offense was highly relevant to establish his intent in committing the offense.
Appellant, by his not guilty plea, raised the issue of intent and took no action to narrow the prosecution’s burden of proof. (People v. Ewoldt (1994) 7 Cal.4th 380, 400, fn. 4.) “The least degree of similarity (between the uncharged act and the charged offense) is required in order to prove intent, ” (id. at p. 402) and appellant’s intent at the time of the murder was an important issue in the case. Evidence that appellant had previously shouted at Shanise and been “mean, ” thrown things out of anger, followed her to Anthony’s apartment complex and viciously vandalized her car when she did not come out, and threatened to kill her thus had significant probative value to prove appellant’s motive and intent in committing her murder. “‘Evidence tending to establish prior quarrels between a defendant and decedent and the making of threats by the former is properly admitted... to show the motive and state of mind of the defendant..., ’” especially when a defendant is accused of unlawful conduct against the same person. (People v. San Nicolas (2004) 34 Cal.4th 614, 668; see also Rufo v. Simpson (2001) 86 Cal.App.4th 573, 585-586 [evidence of prior abuse of victim, despite having occurred several years before killing, properly admitted to show motive, intent, and identity]; People v. Linkenauger (1995) 32 Cal.App.4th 1603, 1610 [evidence of marital discord and prior assaults properly admitted to show intent and motive]; People v. Zack (1986) 184 Cal.App.3d 409, 413 [stormy two-year romantic relationship between defendant and decedent]; People v. Daniels (1971) 16 Cal.App.3d 36, 46[evidence of quarrels and jealousy between defendant and victim is proof of motive].) As in these cases, appellant and the victim, Shanise, were the same parties involved in all but one of the previous incidents. The evidence also served as impeachment of appellant’s testimony that there was no hostility between him and Shanise.
The evidence was also properly admissible under Evidence Code section 352. A trial court enjoys broad discretion under Evidence Code section 352 in assessing whether probative value outweighs undue prejudice, confusion, or consumption of time. (People v. Brown (2000) 77 Cal.App.4th 1324, 1337.) The combined evidence was not more inflammatory than the facts of the present offense, and the incidents were not too remote in time (cf. People v. Ewoldt, supra, 7 Cal.4th at p. 405; People v. Zepeda (2001) 87 Cal.App.4th 1183, 1212.) Generally, any remoteness of evidence goes to weight, not admissibility. (People v. Archerd (1970) 3 Cal.3d 615, 639.) It was unnecessary that the trial court expressly state that it had weighed the evidence’s prejudice against its probative value. (People v. Padilla (1995) 11 Cal.4th 891, 924 overruled on another point in People v. Hill (1998) 17 Cal.4th 800, 823, fn.1.) The trial court could reasonably conclude the probative value of the evidence outweighed any prejudicial effect, since it was significant evidence concerning issues such as intent and motive. Appellant has failed to demonstrate that the evidentiary rulings were arbitrary or capricious.
3. Any Error Harmless
Even if the trial court erred in allowing the evidence, such error was harmless. The verdict in this case was not a close call. (See People v. Earp (1999) 20 Cal.4th 826, 878 [judgment not reversed for erroneous admission of evidence unless error results in miscarriage of justice].) The jury was given a limiting instruction, which, combined with the strength of the evidence presented at trial, leads us to conclude that it is not reasonably probable that appellant would have obtained a more favorable result had the evidence of his other acts been excluded. (Evid. Code, § 353; CALCRIM No. 303; People v. Ayala (2000) 23 Cal.4th 225, 271.)
B. Limiting Instruction
1. Appellant’s Argument
Appellant contends his is an “extraordinary case” that required the trial court to give sua sponte a limiting instruction such as CALCRIM No. 375 with respect to the other crimes evidence. (See People v. Collie (1981) 30 Cal.3d 43, 64.) According to appellant, the limiting instruction the trial court gave was inadequate in view of the number of uncharged acts introduced.
2. Appellant’s Case Not Extraordinary
“Trial courts generally have no duty to instruct on the limited admissibility of evidence in the absence of a request. [Citation.]” (People v. Lang (1989) 49 Cal.3d 991, 1020.) Recognizing that his trial counsel did not make such a request, appellant now argues the trial court had a sua sponte duty to give a limiting instruction based on the “narrow exception” the Supreme Court has recognized for “the ‘occasional extraordinary case in which unprotested evidence of past offenses is a dominant part of the evidence against the accused, and is both highly prejudicial and minimally relevant to any legitimate purpose.’ [Citations.]” (People v. Rogers (2006) 39 Cal.4th 826, 854, quoting People v. Collie, supra, 30 Cal.3d at p. 64.) This is not such an extraordinary case. Evidence about the prior incidents did not comprise a dominant part of the People’s case against appellant, nor, for the reasons just discussed, was the evidence unduly prejudicial or of questionable relevance. The prosecutor concentrated on appellant’s behavior while in the room with Shanise, attempting to pin down his movements and actions as well as those of Shanise. As we have stated, the evidence was highly relevant, and in the context of this case, was minimally prejudicial. The overwhelming evidence of guilt only confirms the lack of prejudice here. It is not reasonably probable a limiting instruction would have affected the verdict.
V. Denial of Appellant’s Five Mistrial Motions
This is appellant’s seventh issue in his opening brief.
A. Appellant’s Argument
Appellant argues that the trial court erred in not granting a mistrial at some point, since he made five separate mistrial motions. According to appellant, his trial was prejudiced by the actions of the prosecution and the behavior of the family members in the audience. Appellant contends that this court should apply the Chapman standard in its analysis of error because the prosecutor’s misconduct affected appellant’s ability to present a defense. The errors cannot be harmless because of their “sheer number and weight, ” and the trial court should have granted the mistrial motions and begun a new trial with an unaffected jury.
B. Relevant Authority
“A motion for mistrial is directed to the sound discretion of the trial court. We have explained that ‘[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.’” (People v. Jenkins (2000) 22 Cal.4th 900, 985–986; see also Illinois v. Somerville (1973) 410 U.S. 458, 461–462 [noting trial court’s broad discretion in ruling on mistrial motions].)
C. The Motions
1. First Mistrial Motion
During direct examination of Brown, the prosecutor asked him about the letter Shanise had written. The prosecutor asked what he had observed and what happened. Brown responded with hearsay, saying that Shanise asked him if he had seen a letter. Defense counsel asked to approach, and the trial court granted a sidebar. The trial court told the prosecutor she was attempting to elicit a great deal of hearsay from the witness. The prosecutor explained she was not trying to introduce hearsay. The trial court told the prosecutor she already had testimony about the letter from someone who had seen it and watched it being written. The trial court asked defense counsel if that was the gist of his objection, and defense counsel said he had intended to move for a mistrial because the prosecutor had repeatedly tried to have Brown show that appellant was abusive and possessive of the victim and had a motive to kill her as a result of his rage at the letter. Defense counsel urged that the prosecutor was eliciting hearsay to show this from a witness who was not competent to testify. The trial court denied the mistrial motion.
2. Second Mistrial Motion
This motion was based on the introduction of photographs of Shanise and the emotional response by the victim’s family members and the jurors. This was discussed in issue No. III, subsection D (1), ante.
3. Third Mistrial Motion
The third motion arose after Shanise’s family members left the courtroom during appellant’s testimony. Appellant said he did not remember punching Shanise in the eyes, and he “assum[ed]” he had hit her. He said he had never hit her before. When the prosecutor asked, “So all of a sudden you just hit her and you’ve never hit her before that day; is that right?” Appellant answered, “No. All of a sudden I’m defending myself. And no, I’ve never hit her before.” The prosecutor asked, “So you’ve never done anything physically to Shanise to cause any marks on her body; is that right?” Appellant replied, “Never.” The court called for a recess and said for the record, “The record will reflect that during the defendant’s testimony, the last portion of his testimony, three individuals sitting in the audience suddenly rose and stormed out of the courtroom.” Defense counsel reminded the trial court that the family had already been admonished. He stated that the family’s actions were prejudicial to the defendant and asked for a mistrial on that basis. The trial court admonished all the spectators that any displays would cause them to be excluded, and it denied counsel’s motion for a mistrial. The trial court requested the prosecutor to counsel any family members with whom she might have contact.
4. Fourth Mistrial Motion
The fourth mistrial motion was made after defense counsel complained of the prosecutor’s violating the attorney-client privilege with her questioning of appellant, as discussed ante in issue No. III, subsection D (9).
5. Fifth Mistrial Motion
Appellant alleges that a fifth mistrial motion was made during rebuttal testimony of Edwards. The trial court asked the prosecutor during a sidebar if Edwards was able to say where she saw Shanise’s vandalized car. The trial court stated that this testimony seemed to be relevant. Edwards testified that, after Shanise came to live with her when appellant kicked her out, she had seen Shanise’s car parked at the address where Toy’s uncle lived. Edwards knew that Shanise was visiting Toy at his uncle’s. She had seen the car when Shanise left and afterwards and had taken photographs. She described the damage to the car and its contents. The prosecutor asked several questions about the details of the damage to which defense counsel objected, and all of the objections were sustained. At a sidebar, defense counsel stated that if the prosecutor continued to go forward with the line of questioning he would move for a mistrial. The record does not show that he actually requested a mistrial at that point.
D. Mistrial Motions Properly Denied
We have discussed the circumstances surrounding the second, and fourth, and to some extent the first, motions for mistrial elsewhere in this opinion. In the fifth instance, defense counsel did not actually move for a mistrial.
The third motion and, to a degree, the second motion deal with alleged spectator misconduct. “Misconduct on the part of a spectator is a ground for mistrial if the misconduct is of such a character as to prejudice the defendant or influence the verdict. [Citation.] A trial court is afforded broad discretion in determining whether the conduct of a spectator is prejudicial.” (People v. Lucero (1988) 44 Cal.3d 1006, 1022 (Lucero).) In cases of spectator misconduct, prejudice is not presumed. (People v. Hill (1992) 3 Cal.4th 959, 1002 (Hill), disapproved on another point in Price v. Superior Court (2001) 25 Cal.4th 1046, 1069.) “‘[I]t is generally assumed that such errors are cured by admonition, unless the record demonstrates the misconduct resulted in a miscarriage of justice.’” (Hill, supra, at p. 1002.)
The record here demonstrates no miscarriage of justice based on these instances of inappropriate behavior on the part of the victim’s family. The trial court admonished the jurors not to consider the audience reaction that occurred when the photographs were displayed- a reaction that was likely involuntary. After certain members of the audience left the courtroom, defense counsel agreed with the trial court that it could admonish the jurors during jury instructions. The trial court also instructed the jury not to let “bias, sympathy, prejudice, or public opinion” influence its decision. In Lucero and Hill, far more egregious conduct in the form of oral outbursts by grieving mothers was found not to be sufficient for the grant of a mistrial. (Lucero, supra, 44 Cal.3d at p. 1022; Hill, supra, 3 Cal.4th at p. 1002.)
With respect to the hearsay objections during Brown’s testimony, the subject of the first motion, the trial court did not abuse its discretion. Defense counsel argued that the prosecutor was trying to show through hearsay from an incompetent witness that appellant killed Shanise out of rage. The record shows that Brown responded with unelicited hearsay, and that the other questions introduced evidence that was not prejudicial in the context of other testimony. The trial court cut short the prosecutor’s attempt to elicit that Shanise was looking for something the morning of her murder and refused to allow the prosecutor to pursue this issue. The record of the circumstances surrounding the motion does not support appellant’s claim that the trial court abused its discretion in denying a mistrial.
With respect to the attorney-client privilege issue as a basis for a mistrial, the trial court properly denied the motion. As we have noted, the prosecutor may have asked one question too many, but she did not breach the attorney-client privilege. There was no abuse of discretion. As we have stated previously, appellant was not prejudiced under any standard by any of the occurrences of which he complains. (Chapman, supra, 386 U.S. at p. 24 [beyond a reasonable doubt]; People v. Watson (1956) 46 Cal.2d 818, 836 (Watson) [a result more favorable to appellant not reasonably probable].)
VI. Denial of Appellant’s Faretta Motion at Sentencing
A. Appellant’s Argument
Appellant argues that his request to represent himself at sentencing was not untimely, and the trial court’s error in so ruling is reversible per se.
B. Relevant Authority
It is well established that a defendant in a state criminal prosecution has a constitutional right under the Sixth Amendment to represent himself. (Faretta, supra, 422 U.S. at pp. 819–821.) However, timeliness and an unequivocal assertion are necessary to invoke Faretta rights. (People v. Windham (1977) 19 Cal.3d 121, 127–128.) In assessing an untimely motion, the court should consider the “quality of counsel’s representation of the defendant, the defendant’s prior proclivity to substitute counsel, the reasons for the request, the length and stage of the proceedings, and the disruption or delay which might reasonably be expected to follow the granting of such a motion.” (Id. at p. 128.) The denial of an untimely Faretta motion is reviewed for abuse of discretion, and the harmless-error standard of Watson, supra, 46 Cal.2d 818 is appropriate. (People v. Burton (1989) 48 Cal.3d 843, 852–853, 854; People v. Nicholson (1994) 24 Cal.App.4th 584, 593.) In the face of an untimely request, “‘it also is established that a midtrial Faretta motion may be denied on the ground that delay or a continuance would be required.’” (People v. Jenkins, supra, 22 Cal.4th at p. 1039; People v. Marshall (1997) 15 Cal.4th 1, 23; People v. Clark (1992) 3 Cal.4th 41, 110.)
C. Proceedings Below
On January 14, 2009, the jury delivered its verdict, and the trial court scheduled sentencing for February 18, 2009. At the hearing, the trial court began by noting that appellant had requested that he be allowed to represent himself in the hearing. The trial court stated, “Mr. Blueford, this matter has been pending since September of 19th of 2005. Throughout that time you have been represented by Mr. De Blanc. And he represented you throughout the trial. It appears to the court at this point that your request for pro. per. status is untimely. I mean obviously I’ve read your letter, you obviously disagree with the verdict, and that’s something that can be addressed on appeal. Mr. De Blanc has indicated that he will file a timely notice of appeal so at this point I’m going to find your request to represent yourself in pro. per. to be untimely.”
When defense counsel told the court that appellant did not understand why he did not have the right to go pro. per., the trial court further explained, “Basically, Mr. Blueford, you obviously had a right to represent yourself in this case, you chose not to represent yourself, you’ve been represented by counsel throughout these proceedings. At no time did you indicate any desire to have any other representation other than Mr. De Blanc. At this point the only basis I could see for your request to proceed in pro. per. is to delay the sentencing. The People have a right, as do the family of the victim, to have some closure in this case, and this is the date that was set for sentencing. You didn’t indicate any desire at the time that the verdict came in to represent yourself for the sentencing. It appears at this point that your issue is primarily one that is going to have to be addressed on appeal. You disagree with the jury’s verdict. There was a jury trial in this case. Obviously, at this point you brought up the fact that the People offered you a plea agreement which you rejected and that was done on the record. The court was aware that the People had offered a plea agreement which you rejected. Basically, you wanted one plea agreement, the People offered another, they did not accept your offer, you did not accept their offer, we had a jury trial. And, frankly, Mr. Blueford, the court, in hearing the same testimony the jury heard, can’t say that I don’t agree with the jury’s verdict. I mean obviously, there was another argument presented by your attorney which the jury didn’t accept. Your testimony was one of self-defense, the jury didn’t accept that. The evidence supported the jury’s verdict as far as this court is concerned. There hasn’t been a motion for a new trial, but based on the evidence that was presented I can’t see any basis for granting a new trial because I think the evidence supported the jury’s verdict in this case. Actually, I think your testimony had a lot to do with the verdict the jury reached because they obviously didn’t believe your testimony. Had you not testified, maybe there would have been a different verdict. But that was the information that was presented to the jury and based on your testimony they reached a finding that is certainly something that you didn’t wish to have done. Obviously, you wanted a manslaughter. At this point you probably will accept a second degree murder. But for all intents and purposes at this point there is not a lot of difference in the state between first degree and second degree murder unless there is a change in the view of the administration in the future. As I’ve indicated, your request for pro. per. status I find to be untimely, three and a half years after your representation by Mr. De Blanc at this late date, the date set for sentencing to request it, it appears to this court that the only basis for proceeding pro. per. would be to delay the sentencing, and I’m going to deny the motion.”
Appellant responded that his issue was with some evidence that was not presented by his attorney, stating, “There was other evidence to be presented and it was told to me that it wouldn’t be important. And it would have definitely been important and offered a different side to this.” The trial court stated, “that’s obviously something that can be addressed on appeal.” When appellant complained that the witnesses were not even interviewed, the trial court reminded appellant that, of the three people present when the crime was committed, the two living witnesses had testified, and there could be no purpose for calling any other witness, despite appellant’s belief to the contrary.
D. Motion Properly Denied
We disagree with appellant. Here, the trial court was aware of appellant’s intent to represent himself in order to argue that he was wrongly convicted of first degree murder and that the evidence showed voluntary manslaughter at most. He stated that the jury’s decision was based on emotion. The trial court properly decided that these issues were not germane to a sentencing hearing and that appellant’s request was sparked by a desire to delay sentencing because appellant did not agree with the verdict. Because appellant’s concerns dealt with matters that should have been addressed during trial, his motion to represent himself only at sentencing was untimely. As the trial court noted, appellant did not request self-representation during the years he was represented by counsel and throughout the conduct of the trial when it would have been appropriate to address his issues. Furthermore, although appellant did not expressly ask for a continuance, it was clear that he did not have a new trial motion prepared and that his issues could only be relevant to a new trial motion at this stage. Although there was no showing that appellant had a penchant for seeking substitution of counsel, this factor alone does not undermine the trial court’s decision. (See People v. Burton, supra, 48 Cal.3d at p. 854.) Considering the totality of the circumstances surrounding appellant’s belated request, we can find no abuse of discretion.
In any event, the denial of appellant’s Faretta request was harmless in that a result more favorable to appellant was not reasonably probable. (People v. Rivers (1993) 20 Cal.App.4th 1040, 1050.) There is no showing that appellant would have been able to achieve a more favorable sentence for first degree murder had he represented himself at sentencing. The sentence was mandated by law, as appellant concedes in his opening brief.
VII. Hearing on Appellant’s Request for Appointment of a Different Attorney at Sentencing
A. Proceedings Below
As noted, appellant told the trial court that there was other evidence to be presented, and the witnesses were never interviewed. The trial court asked if appellant wished to indicate that additional witnesses would somehow cause the jury to reach a different verdict, and appellant said, “Yes.” Appellant then asked, “Well, if I can’t go pro. per., can I request an attorney be appointed besides Mr. De Blanc?” The trial court replied, “Okay, we’ll clear the courtroom. Everyone other than defense counsel and court staff is to leave the courtroom.” After the closed hearing, the trial court proceeded with sentencing, despite appellant’s continued efforts to interject his complaints about his attorney.
B. Appellant’s Argument
Appellant contends the trial court committed per se reversible error when it ruled that appellant could not discharge his retained counsel and seek appointment of new counsel for sentencing. Appellant suffered prejudice because he expressed dissatisfaction with his trial counsel that he could have addressed in a new trial motion with appointed counsel. The fact that the result might not have been different had appellant been able to obtain new counsel is not the inquiry mandated by the case law. The error is reversible per se because it reflects appellant’s right to representation by counsel of choice.
Respondent requests an independent review of the sealed transcript related to the motion to discharge retained counsel in order to resolve appellant’s claims. Respondent points out that the trial court did not mention “Marsden” when it cleared the courtroom, although the court reporter described the hearing as “Marsden proceedings.” Therefore, it is necessary to determine whether the trial court applied Marsden at the in camera hearing.
C. Relevant Authority
Criminal defendants have the right to dismiss a retained attorney. (People v. Ortiz (1990) 51 Cal.3d 975, 983 (Ortiz).) A defendant need not have cause or demonstrate that his attorney is incompetent. (People v. Munoz (2006) 138 Cal.App.4th 860, 863 (Munoz).) This rule also applies to posttrial proceedings. (Ibid.) The trial court, however, may deny a motion to relieve counsel if, within its discretion, relieving retained counsel would result in “‘significant prejudice’ to the defendant” or “‘disruption of the orderly processes of justice.’” (Ortiz, supra, 51 Cal.3d at p. 983; see also People v. Lara (2001) 86 Cal.App.4th 139, 152.)
Munoz and People v. Hernandez (2006) 139 Cal.App.4th 101 (Hernandez) clearly establish the proposition that the evaluation of a defendant’s request to discharge his or her retained counsel exclusively in terms of Marsden standards results in automatic reversal.
D. Marsden Inquiry Erroneous
The issue in Munoz was whether the rule of Ortiz (that a defendant can have his retained counsel relieved without cause) applied after the defendant had been convicted. (Munoz, supra, 138 Cal.App.4th at p. 863.) When the trial court addressed Munoz’s request in court, it stated that substitution of counsel after a verdict required a conflict of interest or incompetent representation. (Id. at p. 864) It denied the request on the ground that the defendant had failed to make an adequate showing that retained counsel was incompetent. (Id. at p. 865.)
The Munoz court concluded Ortiz did apply after conviction, because counsel’s assistance is considered essential at every critical stage of the criminal process, including postconviction proceedings such as motions for new trial, sentencing, and pronouncement of judgment. (Munoz, supra, 138 Cal.App.4th at p. 867.) Munoz stated that “‘[a] trial court faced with a request to substitute retained counsel must balance the defendant’s interest in new counsel against the disruption, if any, flowing from the substitution.’ [Citation.]” (Id. at p. 870.) Blanket generalizations about possible delay do not suffice. (Ibid.) In Munoz, although the trial court might have been correct had it found that substantial delay in the administration of justice would result from granting the defendant’s request, the record did not contain anything to suggest that the trial court made such an inquiry. (Id. at pp. 869–870.) The record indicated that the defendant made repeated and detailed requests that were caused by a genuine concern about the adequacy of the defense rather than a desire to delay the proceedings. (Id. at p. 870.) The substitution of counsel would not necessitate a lengthy delay because the trial was not complicated and had lasted only two days. (Ibid.) The trial court itself had delayed the proceedings for five weeks. (Ibid.) Accordingly, Munoz reversed and remanded to allow the defendant to discharge retained counsel. The Munoz court observed that its decision did not require an automatic retrial, and the case would proceed anew from the point at which the defendant originally sought to discharge his lawyer. (Id. at p. 871.)
The request for substitute counsel in Hernandez was made just four days before trial. (Hernandez, supra, 139 Cal.App.4th at p. 105.) Again, the court evaluated the request as if it were a Marsden hearing (“the trial court here held what was in essence a Marsden hearing”), and required the defendant to show that his counsel was providing inadequate representation. (Hernandez, supra, at pp. 105–106, 108.) It did not consider any potential disruption to the judicial process that might be occasioned by granting the request. (See id. at p. 106.) As in Munoz, the court stated that the trial court may have been correct had it had found a disruption to the judicial process would result. However, it made no such inquiry and did not mention this factor in its decision, which was based entirely on a Marsden analysis. (Hernandez, supra, at p. 108.) The court expressly rejected the idea that there was some sort of implied recognition of the factor of disruption of justice by virtue of the belatedness of the discharge request. (Id. at p. 109.) The denial of the request required automatic reversal. (Ibid.)
In the instant case, it was improper for the trial court to hold a Marsden-type hearing, which our examination of the sealed transcript reveals was held. The trial court should not have declined appellant’s request to relieve Mr. De Blanco without a finding of a resulting disruption in the orderly processes of justice. (Ortiz, supra, 51 Cal.3d at p. 983.) Although the “trial court may have been correct had it made such a finding, there is nothing in the record to suggest any such inquiry was made.” (Munoz, supra, 138 Cal.App.4th at pp. 869–870.) Had the court inquired, the record might show a justification for the denial of appellant’s request to discharge his retained attorney. The trial court did not make the proper inquiry and failed to make the proper finding. The possibility of a request for continuance at this stage of the proceedings is by itself insufficient to warrant depriving appellant of his Sixth Amendment right to counsel of his choice. Under these circumstances, the proper remedy is to set aside the judgment, but not the conviction. (Munoz, supra, at p. 871.) “Once new counsel is appointed, the case shall proceed anew from the point [the] defendant originally sought to discharge his attorney.” (Ibid.)
VIII. Cumulative Error
Appellant contends that the cumulative effect of the errors he has claimed denied him his state and federal constitutional rights to due process and a fair trial. He argues that the series of errors were not only independently prejudicial but rose by accretion to the level of reversible prejudicial error, given the crucial issue of self-defense. According to appellant, the trial wrongly devolved into a trial of appellant’s character rather than a trial to determine what actually happened.
We disagree. As we have found, appellant was not prejudiced by any of the errors he has set out. Our review of the record assures us that appellant received due process and a fair trial. (See People v. Ashmus (1991) 54 Cal.3d 932, 1006.) Whether considered individually or for their cumulative effect, none of the errors alleged affected the trial process, deprived appellant of his constitutional rights, or otherwise accrued to his detriment. (See People v. Sanders (1995) 11 Cal.4th 475, 565; People v. Cudjo (1993) 6 Cal.4th 585, 637.) Thus, there has been no showing of cumulative prejudicial error of a degree sufficient to permit reversal. As the California Supreme Court has stated, “A defendant is entitled to a fair trial, not a perfect one.” (People v. Mincey (1992) 2 Cal.4th 408, 454.) We reject appellant’s contention.
DISPOSITION
The trial court’s decision denying appellant’s motion to relieve his retained attorney is reversed, and the matter is remanded to allow appellant to discharge his retained attorney. Although this requires a reversal of the judgment, a retrial is not required. When new counsel is retained or appointed, the case shall proceed from the point at which appellant originally sought to discharge his attorney.
We concur: DOI TODD, J., ASHMANN-GERST, J.
“(1) The statement purports to narrate, describe, or explain the infliction or threat of physical injury upon the declarant.
“(2) The declarant is unavailable as a witness pursuant to Section 240.
“(3) The statement was made at or near the time of the infliction or threat of physical injury. Evidence of statements made more than five years before the filing of the current action or proceeding shall be inadmissible under this section.
“(4) The statement was made under circumstances that would indicate its trustworthiness.
“(5) The statement was made in writing, was electronically recorded, or made to a physician, nurse, paramedic, or to a law enforcement official.
“(b) For purposes of paragraph (4) of subdivision (a), circumstances relevant to the issue of trustworthiness include, but are not limited to the following:
“(1) Whether the statement was made in contemplation of pending or anticipated litigation in which the declarant was interested.
“(2) Whether the declarant has a bias or motive for fabricating the statement, and the extent of any bias or motive.
“(3) Whether the statement is corroborated by evidence other than statements that are admissible only pursuant to this section.
“(c) A statement is admissible pursuant to this section only if the proponent of the statement makes known to the adverse party the intention to offer the statement and the particulars of the statement sufficiently in advance of the proceedings in order to provide the adverse party with a fair opportunity to prepare to meet the statement.”