Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, Super. Ct. No. BA163991, Robert J. Perry. Judge.
Peter Gold, 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, Senior Assistant Attorney General, Paul M. Roadarmel, Jr., and Stephanie A. Miyoshi, Deputy Attorneys General, for Plaintiff and Respondent.
PERLUSS, P. J.
Rebecca Cleland, whose previous conviction on charges of conspiracy to commit murder and first degree murder was overturned by this court, appeals from the judgment entered after the jury on retrial again found her guilty on both charges. The jury also found true the special allegations the murder was committed for financial gain and while lying in wait. Cleland was sentenced to life in prison without the possibility of parole. She now contends she received ineffective assistance of counsel at her retrial, raising the question how unreasonable must a defense strategy be to warrant reversal on this ground. She also challenges (as she did unsuccessfully in her first appeal) the trial court’s admission of evidence she retained counsel soon after the murder and prosecutorial comment on that evidence. We affirm.
People v. Cleland (May 27, 2003, B143757) (review den. and opn. ordered nonpub. Aug. 27, 2003, S117252).
FACTUAL AND PROCEDURAL BACKGROUND
The evidence presented by the People on retrial was not substantially different from the evidence at the original trial, which was described in detail in our earlier decision in this case.
Bruce Cleland, a shy and frugal bachelor, worked as a software engineer for TRW, earning a substantial salary. He had not dated much until he met Rebecca Quezada Salcedo at a swap meet in late 1995. After the two began dating, Bruce Cleland became more outgoing.
While they were dating, Bruce Cleland showered Rebecca Salcedo with gifts including cars, trips, cosmetic surgery, clothes, a boat, furniture and a diamond ring. Salcedo told her friends Bruce Cleland was “pretty well off” and “made good money.” She disclosed her plan to marry Bruce Cleland, have a child and then divorce him so she could collect child support and be “set for life.” Prior to their marriage Salcedo used Bruce Cleland’s credit cards, without his knowledge, to pay for furniture and breast augmentation surgery.
Bruce Cleland and Rebecca Salcedo were married in October 1996 in a secret civil ceremony. Although a large church wedding was already planned for January 1997, Salcedo insisted the two be married before purchasing a house. After the civil marriage Bruce Cleland bought a large home in Whittier. Rebecca Cleland, as she became known, moved into the house alone; and Bruce Cleland moved in with his parents until the January 1997 church wedding. Rebecca Cleland, who was having sexual relationships with several other people at the time, required Bruce Cleland to call before visiting the Whittier house.
Both before and after the church wedding, Cleland told friends and acquaintances she did not love Bruce Cleland, did not want to marry him, was unhappy with his sexual performance, had married him for his money and planned to divorce him quickly to obtain financial security. According to her sister, Lorraine Salcedo, who disclosed the request to two others at the time it was made, Cleland asked Lorraine to help her find someone to kill Bruce and make it look like an accident.
Rebecca Cleland will hereafter be referred to as “Cleland.” Her late husband will be identified as “Bruce Cleland.”
Bruce Cleland moved back to his parents’ home just three months after the January 1997 wedding. Cleland’s cousin, Alvaro Quezada, moved into the Whittier house after Bruce Cleland moved back to his parents’ home. Cleland and Alvaro Quezada were seen to be “very affectionate towards one another” and “always hugging and kissing.” Cleland also resumed a sexual relationship with Steven Rivera, a male stripper and former boyfriend.
In April 1997 Cleland consulted with a divorce attorney and presented Bruce Cleland with a draft separation agreement that would allow her to continue living in the Whittier house and would require Bruce Cleland to pay the mortgage and give Cleland spending money. When Bruce Cleland refused to sign the agreement, Cleland threatened to retaliate by claiming he had molested her young son. Bruce Cleland contacted a divorce attorney of his own, who opined that, if the marriage were dissolved, Cleland would not be entitled to a sizeable property settlement or substantial spousal support.
Notwithstanding all these difficulties, Bruce Cleland apparently wanted his marriage to succeed. On July 25, 1997 he told his parents he was going to meet with Cleland to try to work out their differences. The two had dinner together that evening. During dinner, Cleland, the only person seen to use the restaurant’s pay telephone that night, called Alvaro Quezada or his father, Arturo Quezada, several times on the restaurant’s telephone and her cellular telephone. In addition, an unidentified woman speaking Spanish used the restaurant’s telephone to place a call to a wrong number (answered by Ilma Lopes, who testified at trial) and asked for Alvaro Quezada’s brother, Jose Quezada. After dinner, the Clelands left the restaurant at 10:30 p.m. or 11 p.m. and went to Arturo Quezada’s house for drinks. When they left Arturo Quezada’s home at about 1:00 a.m., Cleland was driving.
Telephone records introduced at trial indicated Alvaro Quezada telephoned Arturo Quezada’s house several times between 12:35 a.m. and 12:49 a.m. Cleland called Alvaro Quezada several times between 1:00 a.m. and 1:01 a.m. on her cellular telephone. Several of these calls placed Alvaro Quezada and his cellular telephone very close to the location where Bruce Cleland was killed.
Cleland subsequently reported to the police that, shortly after leaving Arturo Quezada’s house, she noticed a warning light on the dashboard indicating the rear hatch was open. She claimed she stopped near the entrance to the Interstate 5 freeway, got out of the car to shut the hatch and was struck on the back of the head and knocked to the ground. Residents of nearby houses heard gunshots, saw a man running away from the scene and heard a car door slam and a car speed away from the area. One of those neighbors, Guadalupe Hernandez, looked out her bedroom window at approximately 1:00 a.m. and saw a man she subsequently identified as Jose Quezada running down the street away from the location of the murder. A passing taxi driver summoned emergency personnel, who arrived within minutes of the shooting and found Bruce Cleland face-down in a nearby driveway, dead from multiple gunshot wounds.
Streetlights provided the only illumination of the suspect as he ran down the block on the opposite side of the street from Hernandez, who admitted she had not seen the suspect’s full face. Nonetheless, Hernandez identified Jose Quezada twice, once in a photographic six-pack lineup and once in a live lineup, and told one of the investigating police detectives she was “98 percent sure” she had selected the right person. Jose Quezada later called as a witness on his own behalf an expert who testified eyewitness identifications under such circumstances are inherently unreliable.
When the police arrived, Cleland’s car engine was still running. Cleland’s keys, purse, cellular telephone and jewelry were on the front seat. Cleland told police her diamond ring was missing. She identified Bruce Cleland as her husband, but did not attempt to approach his body or ask about his condition. The paramedics who examined her for a head wound found no indication of an injury. She was taken to the police station, where her demeanor was described as “kind of carefree and a little bit relaxed.” She also appeared to be “flirtatious and friendly” with one of the police officers.
After Bruce Cleland’s death, Cleland retained counsel to assist her in obtaining the proceeds from Bruce Cleland’s basic life insurance policy from TRW, which would pay a sum equal to half of Bruce Cleland’s annual salary, a TRW optional accidental death policy for $517,000; a $25,000 accidental death policy; a mortgage life insurance policy from Minnesota Life Insurance Company, which would pay the balance on the Whittier house in the event of Bruce Cleland’s death; and the $196,000 proceeds of Bruce Cleland’s TRW stock savings plan. After the murder, Alvaro Quezada continued to live with Cleland at the Whittier house.
2. The First Trial
Cleland, Alvaro Quezada and Jose Quezada were ultimately arrested and charged with conspiracy to commit murder and first degree murder, with special allegations the murder had been committed for financial gain and while lying in wait. After a jury trial, all three defendants were convicted on both counts; and the jury found the special circumstances allegations to be true. All three defendants were sentenced to life in prison without the possibility of parole.
On appeal, this court reversed the convictions of Cleland and Jose Quezada and remanded their cases for retrial, holding the trial court had committed prejudicial error under Griffin v. California (1965) 380 U.S. 609 [85 S.Ct. 1229, 14 L.Ed.2d 106] when it allowed evidence of, and prosecutorial comment about, Jose Quezada’s and Cleland’s postarrest silence. (People v. Cleland, supra, B143757, at pp. 9-18.) We also held the trial court erred by permitting the prosecutor to introduce evidence of an incriminating statement made by Jose Quezada in response to police questioning following his arrest but prior to being advised of his right to remain silent and to the presence of an attorney. (Id. at pp. 8-9.) We affirmed the conviction of Alvaro Quezada. (Id. at p. 27.)
3. Proceedings on Retrial
Cleland and Jose Quezada were each represented by new counsel for the retrial. In March 2005, more than 18 months before the retrial, Jose Quezada’s counsel made a motion to sever the trial of his client from that of Cleland on the ground her defense counsel had informed him Cleland would contend she had seen Jose Quezada kill Bruce Cleland but had no advance knowledge of the murder plan. The motion was denied.
At the retrial Cleland’s counsel elaborated on this theory of the case. Although the prosecution’s case did not significantly differ from the first trial and depended once again largely on circumstantial evidence, together with Hernandez’s questionable eyewitness identification, to link Jose Quezada to the murder, Cleland’s counsel stated Cleland drove to the murder location expecting her cousins to confront Bruce Cleland over his purported sexual advances to Arturo Quezada. She was “totally shocked” when she saw Jose Quezada kill her husband and feared she would be implicated because she had driven him to the location. She panicked and fabricated the story she and Bruce Cleland had been carjacked and she had been knocked unconscious. According to her counsel, the jury would hear no evidence she had plotted with her cousins to murder her husband. Indeed, according to Cleland’s counsel, she had purchased the life insurance policies with her husband’s permission. The only evidence of any malevolent intent on Cleland’s part was the allegation by her sister Lorraine Salcedo, who is a liar and hates Cleland, that Cleland had solicited her to help find someone to murder Bruce Cleland.
Based on the statements of Cleland’s counsel, Jose Quezada moved for a mistrial and renewed his motion to sever his trial from Cleland’s. The trial court, although obviously troubled by the potential prejudice to Quezada, denied the motions without prejudice to see what evidence would be presented in support of Cleland’s theory. Cleland’s counsel declined to commit to calling Cleland to testify, indicating he would make that determination after hearing the prosecution’s evidence.
Ultimately, Cleland did not testify at the trial. Nonetheless, during closing argument Cleland’s counsel reiterated the same theory he had articulated in his opening statement. Quezada again sought a mistrial, which was granted by the trial court. The jury proceeded to convict Cleland on the charges of first degree murder and conspiracy to commit murder and to find true the special allegations of murder for profit and of lying in wait.
Jose Quezada was thereafter convicted of both conspiracy to commit murder and murder with special circumstances in a separate trial. His appeal from the judgment of conviction is currently pending in this court. (People v. Quezada, B197581.)
CONTENTIONS
Cleland contends her counsel, by adopting a theory of the case that admitted Jose Quezada had killed Bruce and by failing to introduce evidence at trial in support of that theory as promised in his opening statement, provided ineffective assistance of counsel in violation of her Sixth Amendment right to counsel. She also contends the trial court committed prejudicial error by admitting evidence Cleland consulted with an attorney following the murder and allowing the prosecutor to comment on that evidence.
DISCUSSION
1. Cleland’s Claim of Ineffective Assistance of Counsel Fails
To prevail on a claim of ineffective assistance of counsel, a “defendant must show that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.” (Strickland v. Washington (1984) 466 U.S. 668, 687 [104 S.Ct. 2052, 80 L.Ed.2d 674, 693].) “Counsel’s performance was deficient if the representation fell below an objective standard of reasonableness under prevailing professional norms. [Citation.] Prejudice exists where there is a reasonable probability that, but for counsel’s errors, the result of the proceeding would have been different.” (People v. Benavides (2005) 35 Cal.4th 69, 93.)
“In evaluating a defendant’s claim of deficient performance by counsel, there is a ‘strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance’ [citations], and we accord great deference to counsel’s tactical decisions. [Citation.] Were it otherwise, appellate courts would be required to engage in the ‘“perilous process”’ of second-guessing counsel’s trial strategy. [Citation.] Accordingly, a reviewing court will reverse a conviction on the ground of inadequate counsel ‘only if the record on appeal affirmatively discloses that counsel had no rational tactical purpose for his act or omission.’” (People v. Frye (1998) 18 Cal.4th 894, 979-980.)
When the reason for counsel’s action or inaction is apparent on the record, the court will determine whether that reason reflects reasonably competent performance by an attorney acting as a conscientious and diligent advocate. If no explanation appears, an ineffective assistance of counsel claim will be rejected unless the attorney was asked for and did not offer an explanation, or there can be no satisfactory explanation. (People v. Coddington (2000) 23 Cal.4th 529, 652, overruled on another ground in Price v. Superior Court (2001) 25 Cal.4th 1046, 1069, fn. 13; see People v. Scott (1997) 15 Cal.4th 1188, 1212 [“courts should not second-guess reasonable, if difficult, tactical decisions in the harsh light of hindsight”].)
There is no question the theory adopted by Cleland’s counsel was the considered product of his assessment of the evidence against her. An obviously experienced and competent criminal lawyer, he disclosed the gist of his theory to Jose Quezada’s counsel 18 months before the trial, which prompted a motion to sever Quezada’s retrial from Cleland’s. Nonetheless, Cleland argues reversal is required here because her counsel’s decision to admit in his opening statement Quezada’s involvement in the murder and her own fabrication of a carjacking was completely irrational in light of the lack of any direct evidence tying her to the murder. Cleland points to our previous opinion in this case in which we could not find harmless the trial court’s Griffin error, thus requiring reversal of her conviction, to underscore the circumstantial nature of the evidence.
As we summarized in that opinion, “The case against Cleland was entirely circumstantial. The prosecutor presented considerable evidence she was a person of bad character who apparently married Bruce Cleland for his money; she had affairs with other people during the time she was involved with Bruce Cleland; she took out insurance policies on his life and forged his signature on at least one policy application; and she attempted to obtain a favorable divorce settlement by threatening to accuse Bruce Cleland of sexually molesting her son. With respect to events on the night of the murder, Cleland arranged a meeting with Bruce Cleland; she had multiple cell phone conversations with [Alvaro Quezada], who was apparently near the murder scene, that night; she suffered no discernable physical injuries as a result of the supposed attempted carjacking that led to Bruce Cleland’s murder; she was wearing a wedding ring during a post-murder search of her home, even though she claimed her diamond ring had been taken by carjackers; and she paid $500 to [Alvaro Quezada] after the murder. [¶] Although this evidence surely established Cleland’s greed and her poor treatment of Bruce Cleland, none of it tied her directly to the murder. Moreover, Cleland presented evidence to blunt some of the more damaging evidence. For example, she established the life insurance policies were purchased in response to solicitations by the insurance companies rather than as a result of her own initiative. She also presented testimony that [Alvaro Quezada] was upset on the night of the murder and wanted to talk to her because he had just broken up with his girlfriend. On this record it is not possible to conclude that the finding of guilt as to Cleland ‘“was surely unattributable to the error’” in repeatedly commenting on her postarrest silence. (People v. Quartermain [(1997)]16 Cal.4th [600,] 622.)” (People v. Cleland, supra, B143757 at pp. 15-16.)
To make matters worse, Cleland continues, her defense counsel failed to produce any evidence at all in support of several critical components of his new theory, a failure that has also been held to constitute ineffective assistance of counsel. (See, e.g., Harris v. Reed (7th Cir. 1990) 894 F.2d 871, 879 [Sixth Amendment violation when defense counsel failed to call witnesses who he claimed in opening statement would support defense version of shooting]; Anderson v. Butler (1st Cir. 1988) 858 F.2d 16, 17-19 [Sixth Amendment violation when counsel failed to present promised expert medical testimony that defendant had acted without cognizance of, or feeling for, actions].) The rationale for holding such a failure to produce promised evidence ineffective is that, when counsel primes the jury to hear a different version of the events from what he ultimately presents, one may infer that reasonable jurors would think the witnesses to which counsel referred in his opening statement were unwilling or unable to deliver the testimony he promised. (See McAleese v. Mazurkiewicz (3d Cir.1993) 1 F.3d 159, 166-167.)
Even before the United States Supreme Court’s decision in Strickland, supra, 466 U.S. 668, a California court reversed a conviction after concluding the defendant’s trial counsel had prejudiced his client by promising the jury he would present evidence disproving the prosecution’s case, including alibi evidence, psychiatric evidence, character and other evidence to rebut the prosecution’s case. (People v. Corona (1978) 80 Cal.App.3d 684, 725 .) Instead of delivering on this promise, defense counsel decided to forgo the defenses and submitted the matter on the evidence introduced by the prosecution. (Ibid.) As the court explained, this conduct “opened the gate to legitimate, devastating comments on the part of the prosecution” to comment on the “failure of the defense to provide the promised evidence and thereby dealt a devastating blow to appellant’s cause.” (Id. at pp. 725-726.)
Cleland argues for a similar result here. Despite promising to demonstrate Alvaro Quezada planned Bruce Cleland’s murder without Cleland’s knowledge and that Cleland understood she was only bringing her husband to be confronted on his supposed sexual overtures to Arturo Quezada, her counsel failed to produce any evidence from which the jury could infer these crucial facts. There was no evidence Alvaro Quezada feared losing the lifestyle he enjoyed with Cleland or that he planned the murder; there was no evidence Cleland believed her husband would be confronted by Alvaro and Jose Quezada about the sexual overtures to their father; and there was no evidence Cleland was surprised by the murder or belatedly concocted the carjacking story because she feared being implicated in the shooting. Nor was there any evidence Cleland had Bruce Cleland’s permission to forge his name on the life insurance policies she had purchased.
Compounding the damage flowing from the life insurance policies, there was no evidence other than the statement of defense counsel Cleland had attempted suicide after she received the proceeds from those policies. As Cleland points out, this assertion was problematic at best because it is equally susceptible to an inference she did so because she felt guilty about killing her husband. But, once proffered, she argues, her counsel erred by failing to produce corroborative evidence for the statement.
However, making promises about the defense evidence in opening statement and then failing to produce the evidence does not necessarily constitute ineffective assistance. (See People v. Burnett (2003) 110 Cal.App.4th 868, 885.) “Whether the failure to produce a promised witness amounts to ineffective assistance of counsel is a fact-based determination that must be assessed on a case-by-case basis. [Citation.] Forgoing the presentation of testimony or evidence promised in an opening statement can be a reasonable tactical decision, depending on the circumstances of the case.” (People v. Stanley (2006) 39 Cal.4th 913, 955.)
For instance, in People v. Frye, supra, 18 Cal.4th 894, defense counsel told the jury during opening statement the defendant would testify and explain what he remembered. Ultimately, the defendant did not take the stand and was convicted. The Supreme Court concluded defense counsel was not deficient because the decision to advise the defendant not to testify, made after counsel had a chance to observe him during trial, was a valid, tactical judgment. (Id. at pp. 983-984.) Similarly, in People v. Burnett, supra, 110 Cal.App.4th 868, the Court of Appeal rejected a claim of ineffective assistance when defense counsel “‘chose, as a matter of sound trial strategy, not to put on any defense because the defense theory was an “incredible” one.’” (Id. at p. 885.) “Defendant apparently led defense counsel to believe that Leo [a 19-pound pet dog defendant had pulled from its owner’s car and thrown into traffic, causing the dog’s death, after the owner had ‘tapped’ defendant’s rear bumper in a lane-changing incident] bit him and his tooth snagged on defendant’s finger. When all of the witnesses testified that this did not happen, including the only defense witness, . . . whom defense counsel told the jury he expected to corroborate the testimony of defendant but who instead testified consistently with prosecution witnesses, defense counsel was compelled to change course.” (Id. at p. 884.)
The record in this case demonstrates the theory espoused by defense counsel, while undeniably risky, resulted from a reasonable tactical assessment of the strengths and weaknesses of the prosecution’s evidence against Cleland. To begin with, the defense theory made the eyewitness identification of Jose Quezada by Guadalupe Hernandez irrelevant. Whether or not the testimony given by Hernandez could be impeached by the circumstances surrounding the identification coupled with expert testimony questioning the reliability of eyewitness identifications, Hernandez was a forceful, articulate witness. By embracing that testimony, Cleland’s counsel was also able to emphasize Hernandez’s statement Cleland was crying as Jose Quezada ran away, a fact corroborated by the other eyewitness, who testified she had heard people yelling at each other.
Defense counsel’s theory also cast new light on Cleland’s statement to Arturo Quezada before she had been told of Bruce Cleland’s death, “They killed him.” As recast by Cleland’s counsel in his closing argument, the statement could better be understood as, “They didn’t confront him, they killed him.” Further, the defense theory explained the devastating evidence from the paramedics and others who had examined Cleland after the murder and testified she showed no evidence at all of a head injury. Cleland’s claim her wedding ring had been stolen (but not her car, purse, cellular telephone or Bruce Cleland’s wallet) was also convincingly disproved by the testimony of witnesses who observed her wearing the ring after the murder. By admitting Cleland fabricated the carjacking story, her counsel mitigated the impact of that testimony.
As her counsel also pointed out at length, although Cleland unquestionably had a close relationship with Alvaro Quezada, there was no evidence tying Cleland to Jose Quezada other than the possibly misdialed call from the restaurant asking for Jose Quezada. As for the testimony of Lorraine Salcedo, who provided the only evidence Cleland harbored an intent to kill her husband, Cleland’s counsel attempted to show a strong motive on the part of Salcedo to lie, as well as a practice of lying in the past. His theory was bolstered by Lorraine Salcedo’s shocking text message to Veronica Salcedo (the siblings’ oldest sister), stating: “Ha, ha, ha, your sister’s going to jail forever!”
Cleland now argues this entire approach was so profoundly misguided we should reverse and remand the case for yet another trial. But as unconventional as this theory may appear, a defendant’s counsel “does not render ineffective assistance by choosing one or several theories of defense over another.” (People v. Cunningham (2001) 25 Cal.4th 926, 1007.) “‘“[E]ven debatable trial tactics”’” do not constitute ineffective assistance of counsel. (People v. Weaver (2001) 26 Cal.4th 876, 928.)
Moreover, it is apparent Cleland fully cooperated with her counsel in devising her defense and was fully aware of its consequences. As the Supreme Court recognized in Strickland, supra, 466 U.S. at page 691, “The reasonableness of counsel’s actions may be determined or substantially influenced by the defendant’s own statements or actions. Counsel’s actions are usually based, quite properly, on informed strategic choices made by the defendant and on information supplied by the defendant.” Unlike the defense (or lack thereof) in People v. Corona, supra, 80 Cal.App.3d 684, Cleland’s counsel presented a coherent defense and did not promise to produce witnesses that were never called. Instead, he recited what evidence the jury would hear and what he believed the evidence would show-- that is, what he was inviting the jury to infer from the evidence. Although counsel apparently contemplated calling Cleland to testify at the time he delivered his opening statement, we cannot say it was plainly irrational not to call her to testify once the prosecution had rested its case. And in spite of the prosecution’s repeated assertion to the jury Cleland had failed to introduce evidence in support of her defense, the prosecution failed to proffer any evidence that conclusively disproved the defense theory. As Cleland’s counsel properly argued to the jury, the prosecution bore the burden of proving Cleland’s guilt.
Thus, while the defense mounted by Cleland’s counsel did not succeed, “it does not follow that counsel lacked a coherent defense strategy, or that counsel was incompetent for pursuing the chosen strategy. ‘Lack of success does not reflect incompetence of counsel.’ [Citations.] [N]othing in the record indicates the actions cited by defendant were anything other than the informed strategic decisions of counsel.” (People v. Frye, supra, 18 Cal.4th at p. 982.)
2. The Trial Court Did Not Err in Admitting Evidence Cleland Retained Counsel To Assist Her in Recovering Life Insurance Policy Proceeds
Cleland renews her challenge to the trial court’s admission of evidence she had consulted with a lawyer shortly after the murder to assist her in collecting the proceeds of Bruce Cleland’s life insurance policies. We addressed the issue in our previous opinion because it was likely to recur on remand, as it did, and instructed the evidence had been properly admitted. As we explained, “Cleland retained [a lawyer] not as criminal defense counsel, but to assist her in obtaining the monies due her by virtue of Bruce Cleland’s employment and life insurance policies. Prosecutors are free to submit evidence regarding a defendant’s attorney if the evidence is offered for a reason other than to show invocation of the right to counsel. (People v. Hughes (2002) 27 Cal.4th 287, 331 [evidence that defendant asked for counsel prior to undergoing a rape kit examination and used the time delay to wash his hands and trim his nails admissible to show plan to destroy evidence]; [People v.] Crandell [(1988) 46 Cal.3d 833,] 879 [prosecutor may legitimately inquire into and comment upon purely ‘demeanor’ or ‘behavior’ evidence].)” (People v. Cleland, supra, at pp. 26-27.)
Cleland urges us to revisit this holding, which we decline to do. Under the law of the case doctrine, “a matter adjudicated on a prior appeal normally will not be relitigated on a subsequent appeal in the same case.” (Davies v. Krasna (1975) 14 Cal.3d 502, 507; People v. Barragan (2004) 32 Cal.4th 236, 246 [“when an appellate court ‘“states in its opinion a principle or rule of law necessary to the decision, that principle or rule becomes the law of the case and must be adhered to throughout [the case’s] subsequent progress, both in the lower court and upon subsequent appeal”’”]; see also Cal. Rules of Court, rule 8.1115(b)(1) [unpublished opinion may be cited or relied upon “when the opinion is relevant under the doctrines of law of the case, res judicata, or collateral estoppel”].) We see no basis to make an exception to this rule under the circumstances here. (See Morohoshi v. Pacific Home (2004) 34 Cal.4th 482, 491-492 [appellate court may decline to adhere to law of the case doctrine “where there has been a manifest misapplication of existing principles resulting in substantial injustice”].)
DISPOSITION
The judgment is affirmed.
We concur: WOODS, J., ZELON, J.