Filed 12/18/15 P. v. Malone CA1/5
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                  DIVISION FIVE


THE PEOPLE,
         Plaintiff and Respondent,
                                                                     A140747
v.
DESHAUN MALONE,                                                      (Solano County
                                                                     Super. Ct. No. FCR261283)
         Defendant and Appellant.


         A jury convicted appellant Deshaun Malone of second degree murder and found
he had personally and intentionally discharged a firearm in the commission of the
offense, causing death. (Pen. Code, §§ 187, subd. (a), 12022.53, subd. (d).)1 He appeals
from the judgment sentencing him to 40 years to life in prison, arguing (1) the evidence
was insufficient to support a verdict of second degree murder, (2) the court erred by
instructing the jury on second degree murder over a defense objection because it was not
a lesser included offense of first degree felony murder as charged in the amended
information, (3) the trial court should have dismissed the case or issued sanctions based
on the prosecution’s failure to preserve exculpatory evidence, (4) the case should have
been dismissed on double jeopardy grounds because the prosecution intentionally
induced a mistrial during a previous trial on the same charge, (5) the court should have
granted a mistrial or new trial based on the prosecutor’s examination of an accomplice



         1
             Further references are to the Penal Code unless otherwise indicated.

                                                             1
who refused to answer, and (6) the alleged errors were cumulatively prejudicial. We
affirm.

                           FACTS AND PROCEDURAL HISTORY
          This case is before us a second time. In a prior appeal, this court reversed
appellant’s conviction for first degree murder under a felony-murder theory because the
trial court did not instruct the jury on voluntary manslaughter as a lesser offense. (People
v. Deshaun Parish Malone (Nov. 28, 2011, A129450) [nonpub. opn.].) The first retrial
following remand ended in a mistrial after the prosecutor referenced appellant’s prior
conviction for first degree murder. The trial court denied appellant’s motion to dismiss
the case on double jeopardy grounds, and a second retrial commenced at which the
following evidence was adduced:
          On November 2, 2008, 17-year-old Kendrick Lewis was spending time with his
girlfriend, Karlee Swafford, at his parents’ house in Vallejo. He and Swafford left the
house a little before 5:00 p.m., after he received a phone call from someone who wanted
to buy Ecstasy. Lewis drove his car, a 2007 Chevrolet Impala, and Swafford rode in the
front passenger seat. On the way they picked up two friends, Willie Muir and Trung
Nguyen, who sat in the backseat with Nguyen on the driver’s side and Muir on the
passenger’s side. As they were driving, Lewis received a phone call directing him to
Mockingbird Lane, a street in a residential neighborhood in Fairfield.
          The group arrived on Mockingbird Lane at about 5:45 p.m., at which point Lewis
parked in the street and left the car running. Jamal Kelly and appellant approached, and
Lewis rolled down his window. Kelly stood near the driver’s window and discussed the
purchase of Ecstasy with Lewis, while appellant stood near the back door of the driver’s
side near Nguyen. Shortly into the transaction, appellant reached inside the car through
the half-open back passenger window holding a gun. He fired a single shot that hit Lewis
in the upper back, striking his right lung and spinal cord and deflecting off the collarbone.
Lewis hit the car’s accelerator and it crashed into a pole. Appellant and Kelly left the
scene, and police arrived shortly after. Lewis died as a result of his wound.



                                                2
       Swafford, Nguyen and Muir all testified at trial. According to Swafford, Lewis
showed Kelly two different colors of Ecstasy, one of which was retrieved from under the
back passenger seat. Kelly wanted to hold the drugs but Lewis said no because he had
not yet received the money. It was at that point that appellant, who was wearing a black
hoodie, stuck the gun inside the car. He waved it around, saying, “Don’t drive off, don’t
drive off.” With his entire arm inside the car up to his shoulder, appellant pointed the
gun at Lewis and shot him in the back. Lewis then hit the gas pedal and crashed into the
pole, after which he said he couldn’t feel his legs and lost consciousness. When the car
came to a stop after the crash, Swafford got out and attended to Lewis until the police
arrived. Muir and Nguyen were behind her in a grassy sidewalk area.
       Swafford testified that she did not see anyone else in the car with a gun and did
not hear either Nguyen or Muir say anything threatening to appellant, though she did hear
appellant say something to Nguyen along the lines of “[w]hy is your partner looking at
me funny?” Appellant also asked whether Nguyen “had a problem” or “what is wrong
with your boy?” Swafford had previously told police that Nguyen responded by saying,
“Nobody looking at you funny,” and that before appellant put the gun inside the car, he
told Muir, “I’ll shoot you first.” Swafford falsely told the police they had gone to the
location to buy marijuana.
       Muir testified that when they arrived at the agreed location for the drug deal,
Lewis left the car running in the middle of the street. They were approached by Kelly
and appellant, both of whom were wearing black hoodies. Kelly talked with Lewis about
the Ecstasy and Lewis asked Muir to hand him another bag of Ecstasy from beneath the
passenger seat. When Lewis had all the drugs in his lap, appellant pulled a gun from his
pocket and pointed it in the car, saying something like “don’t run or I’ll shoot.” The car
began to move and appellant shot Lewis. After the car struck a pole, the three passengers
got out and Muir saw a car coming. Fearing the occupants were appellant and Kelly, he
ran and hid behind a car parked several houses away and returned to Lewis’s crashed car
after the other car passed.



                                             3
      Muir denied having a gun on the night of the shooting and testified that no gun
except for appellant’s was ever inside the car. He acknowledged telling police they had
been trying to buy marijuana at the time of the shooting. He previously told police that
appellant had said something like “why is your boy looking at me like that,” referring to
Nguyen. About two years after the shooting, Muir was arrested for possession of Ecstasy
and possession of a gun and pleaded guilty to possessing the gun.
      Nguyen testified that when they arrived on Mockingbird Lane, Lewis pulled up to
the curb and Kelly and appellant approached the car. Nguyen rolled down the back
passenger window as Lewis and Kelly negotiated the drug deal. Nguyen thought
appellant seemed suspicious and asked him, “[W]here your hands at?” Appellant
responded, “What is wrong with you[?] Go get your boy.” Muir gave Lewis a second
baggie of pills and Kelly asked appellant if they were the kind he wanted. Appellant
drew a gun from his waistband and put it inside the back passenger window, pointed it at
all the occupants, and said, “Give me everything.” Appellant pointed the gun at Lewis
and warned him not to drive off or he would shoot, and when Lewis started to drive
away, appellant shot him. The car crashed and appellant and Kelly ran the other way.
Nguyen got out of the car and sat on the curb crying as he called 911. He denied that
anyone in the car had a gun. Nguyen believed the shot was fired at “point-blank” range,
within two inches of Lewis’s back from the area between the driver’s seat and the
window.
      Officer Steven Trojanowski of the Fairfield Police Department was dispatched to
the scene and arrived at about 5:50 p.m. Muir and Nguyen were about 10 feet away from
the crashed car, frantically flagging him down, while Swafford stood outside the driver’s
door screaming for help. Lewis was unconscious with no vital signs, and Trojanowski
saw a circular pattern of blood on his upper back and smeared blood on the driver’s seat
corresponding to that wound. The driver’s side window was rolled down and the back
window on the driver’s side was mostly rolled down. Many pills were scattered
throughout the car and a single bullet casing was found on the rear passenger side
floorboard. No gun or backpack was recovered from the car. A “Jason” movie character


                                            4
hockey mask, a gray glove and a small fabric bag were found on the grass nearby.
According to Swafford, Nguyen and Muir, the mask had been in the backseat of the car
but no one had been wearing it.
      Rigoberto Estrada was changing the oil in his truck outside his home on
Mockingbird Lane when Lewis was shot. He saw a parked car and two men standing
outside it. Estrada heard a gunshot and the same two men ran by him laughing.
      About a month after the shooting, appellant was interviewed by Detective Brett
Morris after waiving his rights under Miranda v. Arizona (1966) 384 U.S. 436. During
the interview, which lasted about four hours, appellant originally denied any involvement
in the shooting. Although Morris had not told appellant exactly when the shooting
occurred, appellant repeatedly said he had an alibi for November 2, 2008, at 5:30 p.m.
Appellant claimed to have been helping a friend move to Grande Circle, which was near
Mockingbird Lane, and he acknowledged being with Kelly that evening. Morris
suggested the shooting might have been an accident or that maybe someone inside the car
had a gun.
      About halfway through the interview, appellant indicated he was with some
friends on Grande Circle when he saw two men in black hoodie sweatshirts leave the
neighborhood. They returned about 15 minutes later without their sweatshirts and told
appellant they had just “put a nigga in a body bag.” The men also referred to “jacking”
(robbing) someone. Appellant said the killing was over drugs and the victim was just
supposed to give up the pills, but they ended up shooting him. Morris told appellant he
knew he was present at the shooting and appellant admitted as much, though at first he
claimed Kelly had the gun and was the shooter.
      Appellant eventually admitted to Morris that he was the one who had the gun. He
and his “partner” had gone to Mockingbird Lane to purchase Ecstasy and met the dealer
in his car. One of the passengers in the backseat had a “Jason” hockey mask on and a
backpack in his lap, causing appellant concern. Appellant said he did not see another
gun, but brought out his own gun with the intention of shooting the passenger with the



                                            5
mask in the arm. As he was preparing to shoot the passenger, the car moved forward and
the car door post hit his arm, causing him to pull the trigger.
       Appellant wrote a letter of apology to Lewis’s family: “Dear [L]ewis family I’m
very sorry about what happen[ed] to your son I wish things could have went better me
and my friend was tryin to buy some pills to have a good time but things went wrong he
pull up with three other people one was a masked gunman he didn’t won’t [sic] to take
off his mask and I saw he reachin for a gun so I drew my firearm to try to make him put
his down but he kept reachin so I tryed to shoot him in the arm to make him drop it but
your son had started to drive off as I squeezed [the] trigger my arm hit the door post and I
accidentally shoot your son in his back I had no intention on shooting or killing your
sorry [sic] I’m very sorry and I wish I could take back what I did.”
       Kenton Wong was called as a defense expert in ballistics and crime scene
investigation and testified that the available evidence was consistent with appellant’s
version of events. Although there was no bullet hole in the back of the driver’s seat, the
shot could have gone over the seat if it was somewhat reclined. Wong believed the
police were negligent in failing to test any of the passengers’ hands for gunshot residue
and further noted the police did not conduct bullet trajectory analysis. Wong explained
that soot comes out of the barrel when a firearm is discharged, as does gunshot residue.
Hot, unburned powder kernels create “stippling,” which will embed into clothing and
skin and will occur within about eight inches of the end of the firearm. Wong did not
believe appellant shot Lewis at point-blank range (as Nguyen testified) because if that
were the case he would expect to find soot and stippling on Lewis’s clothes and body.
The autopsy report did not indicate that soot or stippling was found on Lewis’s body, and
Wong’s examination of the T-shirt worn by Lewis disclosed no soot or stippling.
       A neighbor, Ira Manning, testified that after the crash he saw two men walking
away from the car who indicated their friend had been shot. They went around the corner
and Manning lost sight of them. Another neighbor, Jose Huezo, saw the crash and saw
two men walking down the street who told him they had called the police. The men then
walked toward Falcon Street, returning later as police were arriving.


                                              6
       The prosecution’s theory of the case was that the shooting was committed while
appellant was attempting to rob Lewis of his drugs, and the crime was first degree felony
murder. The defense theory at trial was that the shooting was at most voluntary
manslaughter because Muir had a gun that he successfully hid from police after the crash
and appellant took out his gun to defend himself. The trial court instructed the jury on
first degree felony murder, second degree malice murder, voluntary manslaughter based
on imperfect self-defense and self-defense as a justification for homicide. The jury
returned a verdict of second degree murder and found the firearm allegation to be true.

                                       DISCUSSION
                 I. Sufficiency of the Evidence of Second Degree Murder
       Appellant argues the evidence at trial was insufficient to support his conviction for
second degree murder. He contends there was no substantial evidence he acted with the
necessary malice aforethought, and that the only two crimes supported by the evidence
were first degree felony murder during the commission of an attempted robbery or
voluntary manslaughter if the jury found the shot was fired with an honest belief in the
need for self-defense. We disagree.
       To evaluate a claim of insufficiency of the evidence, “we examine the entire
record in the light most favorable to the judgment to determine whether it contains
substantial evidence—that is, evidence that is reasonable, credible, and of solid value—
that would support a rational trier of fact in finding [the defendant guilty] beyond a
reasonable doubt.” (People v. Lewis (2001) 25 Cal.4th 610, 642.) We do not reweigh the
evidence, resolve conflicts in the evidence, or reevaluate the credibility of witnesses.
(People v. Young (2005) 34 Cal.4th 1149, 1181.)
       Second degree murder is the unlawful killing of a human being with malice
aforethought, which can be either express or implied. (§§ 187, subd. (a), 188.) Express
malice is the intent to unlawfully kill. (People v. Perez (2010) 50 Cal.4th 222, 233,
fn. 7.) Malice is implied “when a killing results from an intentional act, the natural
consequences of which are dangerous to human life, and the act is deliberately performed



                                              7
with knowledge of the danger to, and with conscious disregard for, human life.” (People
v. Cook (2006) 39 Cal.4th 566, 596.)
       Viewed in the light most favorable to the judgment, the evidence supported a
finding that appellant pulled out a loaded gun during the course of a drug deal, stuck it
inside the window of a car occupied by four people, demanded that they not drive away,
and then fired a shot, striking Lewis in the back and killing him. Even if appellant did
not intend to kill Lewis (and the evidence of a shot fired at close range was sufficient to
support a finding that he did), his act of pointing a loaded gun inside a car full of people
and pulling the trigger demonstrated a conscious disregard for human life. (See In re
Russell H. (1987) 196 Cal.App.3d 916, 919-921 [substantial evidence of implied malice
second degree murder when defendant pulled out gun during dispute over the price of
drugs, cocked it, waved it around, and made threatening statements before it discharged].)
       Appellant suggests the evidence compelled a finding that malice was negated by
his belief in the need for self-defense. We are not persuaded. The evidence supporting
appellant’s claims of perfect and imperfect self-defense consisted primarily of his out-of-
court statements to Detective Morris and his apology letter to Lewis’s family, in which he
indicated he pulled the gun because he believed Muir had a gun. But other evidence
contradicted appellant’s statements. Swafford testified appellant put his hand inside the
car while holding a gun and told them, “Don’t drive off,” before pointing the gun at
Lewis. Swafford, Muir and Nguyen maintained there was no gun in the car. The jury
was not required to credit the evidence that appellant fired the gun while acting in self-
defense or unreasonable self-defense if it rejected a felony-murder theory.

                  II. Propriety of Instruction on Second Degree Murder
       Appellant argues the trial court erred by instructing the jury on second degree
murder over his objection because the amended information charged him with only
felony murder, and second degree murder with malice is not a lesser included offense of
felony murder. We conclude the instruction was proper.




                                              8
       A. Proceedings Below
       In his previous appeal, appellant argued his conviction for first degree felony
murder should be reversed because the trial court had failed to instruct the jury on second
degree murder and voluntary manslaughter as lesser included offenses. This court agreed
an instruction should have been given on voluntary manslaughter, determined the error
was prejudicial, and found it unnecessary to address whether the court should have
additionally instructed on second degree murder. Rejecting the People’s claim that no
instruction was required because voluntary manslaughter is not a lesser included offense
of felony murder, we noted that the sua sponte duty to instruct on lesser included offenses
is to be determined by the accusatory pleading, and in this case, the original information
charged appellant with murder with malice aforethought. (See People v. Anderson
(2006) 141 Cal.App.4th 430, 445 (Anderson) [second degree murder and voluntary
manslaughter were lesser included offenses of murder as pleaded, even though the
prosecution proceeded on felony-murder theory].)
       After the case was remanded for retrial, in an apparent attempt to narrow the
charged crime to felony murder, the district attorney filed an amended information
alleging: “On or about November 2, 2008, defendant DESHAUN PARISH MALONE
did commit a felony namely: MURDER, a violation of Section 187(a) of the Penal Code
of the State of California, County of Solano, in that said defendant did unlawfully, and
during the course of an inherently dangerous felony, murder KENDRICK LEWIS, a
human being.” At the close of evidence, defense counsel filed a memorandum of points
and authorities arguing that the jury could not be instructed on first degree felony murder
because the amended information alleged only second degree felony murder. (See
People v. Chun (2009) 45 Cal.4th 1172, 1182 (Chun) [difference between first degree
felony murder under § 189 and common law second degree felony murder].)
Alternatively, defense counsel argued that if first degree felony-murder instructions were
given, the court should instruct the jury on manslaughter and self-defense, but not on
second degree murder. The prosecutor responded that the amended information gave
notice of first degree felony murder and argued the jury should be instructed on that


                                             9
offense as well as second degree murder with malice aforethought and voluntary
manslaughter.
         The trial court instructed the jury on first degree felony murder, second degree
murder with express or implied malice, voluntary manslaughter under a theory of
imperfect self-defense, and self-defense as a justification for homicide. It declined to
resolve whether second degree murder and voluntary manslaughter were lesser included
offenses of felony murder: “[F]rom a 10,000 foot view, when the People elect the felony
murder and put all the eggs in that basket and the defense presents some pretty significant
evidence . . . , I think there is substantial evidence to support an imperfect self-defense
theory. And it would create a . . . miscarriage of justice to not provide instructions,
despite the fact it’s unresolved, whether these are lesser includeds. [¶] In order to reach
the defense theory we have to present an alternative theory of murder to the jury, and that
would have to be second degree implied malice murder. [S]o it is my intent to in the
alternative provide [second degree murder] as a lesser included or alternative theory of
liability based on the defense’s request that this defense theory be instructed before the
jury.”
         Based on these instructions, the jury returned a verdict of second degree murder
that, as we explained above, was supported by substantial evidence.

         B. Analysis
         A criminal defendant must be given fair notice of the charges against him in order
that he may have a reasonable opportunity to prepare a defense and avoid unfair surprise
at trial. (People v. Shoaff (1993) 16 Cal.App.4th 1112, 1117.) When an offense is
charged in the accusatory pleading, the defendant is placed on notice that he may be
convicted of that offense or any lesser offense necessarily included within the charged
crime. (§ 1159; People v. Reed (2006) 38 Cal.4th 1224, 1227.) A defendant may consent
to have the trier of fact consider a nonincluded offense, but absent such consent, he may
not be convicted of a crime that is neither charged in the accusatory pleading nor
necessarily included within a charged crime. (People v. Birks (1998) 19 Cal.4th 108,



                                              10
117, 127-128 (Birks); People v. Lohbauer (1981) 29 Cal.3d 364, 367-368; People v.
Solis (2015) 232 Cal.App.4th 1108, 1120.)2
       Appellant’s argument focuses on whether second degree malice murder is a lesser
included offense of felony murder, an issue the California Supreme Court has yet to
decide. (People v. Taylor (2010) 48 Cal.4th 574, 623; People v. Valdez (2004) 32 Cal.4th
73, 114, fn. 17.) Appellant contends—contrary to his position in the previous appeal—
that second degree murder is not an included offense of first degree felony murder and
that consequently, his objection to a second degree murder instruction should have
carried the day at trial. (See People v. Castaneda (2011) 51 Cal.4th 1292, 1328-1329
[rejecting claim that instruction on second degree murder as lesser included offense was
required and noting “defendant does not address . . . how second degree murder, which
requires malice, can be a lesser included offense of first degree felony murder, which
does not require malice”].)
       Regardless of its characterization as a lesser included offense, the amended
information charging appellant with murder under section 187, subdivision (a) provided
him with sufficient notice he could be convicted of second degree murder with malice.
“Malice murder and felony murder are two forms of the single statutory offense of
murder. Thus, a charge of murder not specifying the degree is sufficient to charge
murder in any degree. The information also need not specify the theory of murder on
which the prosecution relies at trial.” (People v. Contreras (2013) 58 Cal.4th 123, 147;
see People v. Jones (2013) 57 Cal.4th 899, 968 [information charging defendant with
murder “in violation of PENAL CODE SECTION 187(a)” provided notice of first degree
felony murder under § 189]; People v. Moore (2011) 51 Cal.4th 386, 412-413 [felony
murder and premeditated murder with malice are not distinct crimes and need not be

       2
          “The definition of a lesser necessarily included offense is technical and
relatively clear. Under California law, a lesser offense is necessarily included in a greater
offense if either the statutory elements of the greater offense, or the facts actually alleged
in the accusatory pleading, include all the elements of the lesser offense, such that the
greater cannot be committed without also committing the lesser.” (Birks, supra, 19
Cal.4th at p. 117.)

                                             11
separately pleaded]; People v. Nakahara (2003) 30 Cal.4th 705, 712 [same].) If an
information specifically charging malice murder provides a defendant with adequate
notice of a felony-murder theory, we think the converse must be true.
       Appellant suggests he was not given notice that the case would be submitted on an
implied malice theory because the prosecutor elected to charge him with a murder
committed “during the course of an inherently dangerous felony.” As the Attorney
General notes (and as argued by the defense below in urging the court that the jury should
not be instructed on first degree felony murder), this language is more evocative of the
common law doctrine of second degree felony murder, namely, “ ‘an unlawful killing in
the course of the commission of a felony that is inherently dangerous to human life but is
not included among the felonies [supporting first degree felony murder] enumerated in
section 189.’ ” (Chun, supra, 45 Cal.4th at p. 1182.) The second degree felony-murder
rule “simply describes a different form of malice under section 188” by “ ‘imput[ing] the
requisite malice for a murder conviction to those who commit a homicide during the
perpetration of a felony inherently dangerous to human life.’ ” (Id. at p. 1184)
Accordingly, the literal language in the amended information was sufficient to alert
appellant the case could be submitted to the jury on an implied malice theory.
       Even if we assume the prosecution successfully elected to proceed only on a first
degree felony-murder theory and that as a consequence, second degree murder was
neither charged nor necessarily included within the charge, we would find no error.
Appellant requested an instruction on voluntary manslaughter based on imperfect self-
defense. Voluntary manslaughter requires proof that the defendant killed intentionally or
with a conscious disregard for human life. (People v. Bryant (2013) 56 Cal.4th 959, 968-
969 (Bryant); People v. Blakeley (2000) 23 Cal.4th 82, 88-89; People v. Rios (2000) 23
Cal.4th 450, 461-469 (Rios); CALCRIM No. 572.) This is a mental state equivalent to
second degree murder with malice aforethought, with the caveat that in a case in which
murder is charged, the mitigating circumstances of imperfect self-defense or provocation
will negate malice and render a homicide that would otherwise be murder voluntary
manslaughter. (Bryant, at p. 969; Rios, at p. 461.) By requesting an instruction on a


                                            12
lesser offense that included the elements of implied malice murder (absent the mitigating
circumstance of imperfect self-defense or provocation), appellant implicitly consented to
the jury’s consideration of that issue and forfeited his right to complain about the second
degree murder instruction on appeal. (See People v. Le (1995) 39 Cal.App.4th 1518,
1521-1522 [defendant who requested instruction on simple assault as lesser related
offense of charged robbery could not complain that court gave instruction on lesser
related offense of aggravated assault, the crime of which defendant was convicted, even
though he objected to the aggravated assault instruction].)

                                  III. Trombetta Motion
       Lewis’s car, a 2007 Chevrolet Impala, was taken into police custody after the
shooting. On July 7, 2010, two weeks after the verdict in the first trial but before the
period for filing an appeal had expired, the prosecution released the car to Lewis’s family
because the family was continuing to service the car loan and wanted it back. After the
case was remanded for retrial following the first appeal, the defense filed a motion under
California v. Trombetta (1984) 467 U.S. 479 (Trombetta), seeking dismissal of the
charges based on the prosecution’s failure to preserve this allegedly exculpatory
evidence. The trial court denied the motion, concluding the vehicle itself was not
material and the police did not act in bad faith. Appellant argues this ruling was
erroneous and the charges should have been dismissed. We reject the claim.

       A. Proceedings Below
       Kenton Wong was retained by the defense as an expert in forensic science. At a
hearing on the Trombetta motion, he testified that he had reviewed the crime scene
photographs, law enforcement reports, witness statements and preliminary hearing
testimony in the case, and understood the defense was one of accidental discharge of the
gun. He believed he needed to examine the vehicle in which the victim was shot to
determine whether the physical evidence supported the defense theory of the case. Wong
acknowledged the crime scene photographs were useful, but they did not reflect whether
a bullet hole had been found in the back of the driver’s seat, nor did they show soot,


                                             13
stippling or gunshot residue, which would help to determine the distance of the gun
relative to the victim. Wong acknowledged the forensic evidence would not tell him
whether appellant fired the gun in self-defense. Detective Trojanowski and identification
technician Tara Fahey testified that there were no bullet holes in the back of the driver’s
seat, only blood on the seat itself.
       The court denied the defense motion to dismiss, reasoning as follows: “I am not
convinced that the car itself presents any significant material information. The evidence
is pretty clear that there isn’t a bullet hole that appears in the back, and certainly, there
was clearly no evidence that any bullet hole goes through the front. [¶] But let’s say there
was a bullet hole. It doesn’t necessarily reflect on the defense’s theory of the case. The
trajectory, if it was an intentional shot, he could just be a really bad shot. If it was an
accidental shot, it could be a[n] accidental shot.” The court noted Wong had not tested
the clothing that was still booked in evidence for soot or stippling, and that part of the car
seat cover was still available for testing. Additionally, a 2007 Impala was not a rare car,
and measurements could be taken from another vehicle of the same make and model
using the crime scene photographs. The court noted it was “a little bit unusual” that the
car had been released without a court order, but it found no evidence of bad faith by the
prosecutor or police. There had been “plenty of time” during the first trial for the defense
to examine the car.
       At trial, the court held a hearing under Evidence Code section 402 to determine
the parameters of Wong’s trial testimony. Wong reiterated that it would have been
helpful to examine the car in which the shooting occurred because gunshot residue, soot
and stippling could have helped determine the angle and range at which the gun was
fired, though he acknowledged the evidence would not have indicated whether
appellant’s arm was bumped before he fired the shot. The court ruled that evidence
regarding Wong’s inability to examine gunshot residue within the car was more
prejudicial than probative under Evidence Code section 352 because it would create a
“trial within a trial” and would shed no light as to whether appellant’s hand was bumped
by the car frame as he claimed or whether he pointed the gun at Lewis and fired


                                               14
intentionally. (Evid. Code, § 352.) The court noted that the T-shirt worn by Lewis at the
time of the shooting was still in police custody. As indicated ante, in the Facts and
Procedural History, Wong testified before the jury that in his opinion, the available
evidence was consistent with appellant’s report that he shot Lewis after the window
frame hit his arm and was inconsistent with Lewis being shot at point-blank range.

       B. Analysis
       “ ‘Due process does not impose upon law enforcement ‘an undifferentiated and
absolute duty to retain and to preserve all material that might be of conceivable
evidentiary significance in a particular prosecution.’ [Citations.] At most, the state’s
obligation to preserve evidence extends to ‘evidence that might be expected to play a
significant role in the suspect’s defense.’ [Citations.] If the evidence’s exculpatory value
is apparent and no comparable evidence is reasonably available, due process precludes
the state from destroying it. [Citations.] If, however, ‘no more can be said [of the
evidence] than that it could have been subjected to tests, the results of which might have
exonerated the defendant’ [citation], the proscriptions of the federal Constitution are
narrower; ‘unless a criminal defendant can show bad faith on the part of the police,
failure to preserve potentially useful evidence does not constitute a denial of due process
of law.’ ” (People v. Duff (2014) 58 Cal.4th 527, 549 (Duff) [dismissal not required
because defendant did not establish that car in which shooting occurred had exculpatory
value that would have been apparent to police and did not make showing of bad faith];
see Trombetta, supra, 467 U.S. at p. 488 and Arizona v. Youngblood (1988) 488 U.S. 51,
57-58.) On appeal, “we must determine whether, viewing the evidence in the light most
favorable to the superior court’s finding, there was substantial evidence to support its
ruling.” (People v. Roybal (1998) 19 Cal.4th 481, 510 (Roybal).)
       Here, as in Duff, substantial evidence supports the trial court’s finding that Lewis’s
car had no apparent exculpatory value at the time it was released to Lewis’s family. It
was undisputed that Lewis was killed by a single bullet fired by appellant inside the car.
Appellant’s defense was that he had taken out his gun to shoot one of the passengers in



                                             15
the backseat who had reached for a gun, but that appellant’s gun fired accidentally when
the frame of the car hit his arm. Wong was able to testify, without contradiction, that the
evidence did not support a firing of the gun at point-blank range. By Wong’s own
admission, an examination of the car for gunshot residue, soot or stippling would not
have further supported appellant’s theory of the case by indicating whether appellant
drew his gun in self-defense, or whether he fired the shot accidentally when his arm was
hit. The most that can be said is that an examination of the car itself might have provided
evidence favorable to appellant; consequently, dismissal or other sanctions were not
required absent a showing of bad faith on the part of the police or the prosecution.
       Substantial evidence also supports the trial court’s conclusion the police and the
prosecution did not act in bad faith. (Roybal, supra, 19 Cal.4th at p. 510.) An entire trial
was held during which time the defense did not perform tests or measurements on the car,
and it was not until the case was remanded for retrial that a request to examine the car
was made. The car was released after the first trial to accommodate the financial
circumstances of a murder victim’s family, not to deprive the defense of exculpatory
evidence. Photographs of the car on the night of the shooting were available for
examination, and the technician who processed the car testified and was available for
cross-examination. It was clear from the evidence that no bullet hole was found in the
backseat of the car, a circumstance the defense expert was able to address when he
testified before the jury. Absent any indicia of bad faith, the court properly denied
appellant’s Trombetta motion.

                              IV. Mistrial; Double Jeopardy
       Appellant argues the trial court violated his double jeopardy rights under the state
and federal constitutions by allowing a retrial of the murder charge after the prosecution
induced a mistrial by referring to appellant’s prior murder conviction. (U.S. Const., 5th
Amend.; Cal. Const., art. I, § 15.) We disagree.




                                             16
       A. Proceedings Below
       During the first retrial of this case, which began September 18, 2013, the court
ruled that no reference could be made to appellant’s first trial and conviction of first
degree murder in connection with (1) the release of Lewis’s car to his family after the
first trial was complete; and (2) Kelly’s questioning as a prosecution witness. Similarly,
no reference to Kelly’s conviction of first degree murder was to be made. The
prosecution called as witnesses Detective Trojanowski and Officer Tony DeTomasi, who
investigated the shooting; Rigoberto Estrada, who lived on the street and heard the
gunshot; and Tara Fahey, the evidence technician who responded to the scene and
processed Lewis’s car when it was taken into police custody.
       On recross-examination, defense counsel asked Fahey whether the car was still
available for processing and Fahey indicated it had been released and was no longer in
the police department’s possession. On redirect examination, following an unreported
bench conference after which the prosecutor stated, “The door has been opened,” the
prosecutor asked Fahey whether the car was released after appellant was convicted of
first degree murder and Fahey responded yes. Defense counsel objected and the court
held a reported bench conference with counsel in which it indicated it was “absolutely
flabbergasted” the prosecutor had asked this question without discussing it first. The
prosecutor took the position that defense counsel had opened the door to the information
by suggesting it had been improper for the police to release the car, and it was important
to explain why that car had been released. Defense counsel moved for a mistrial.
Following a recess, the court addressed the mistrial motion and asked defense counsel,
“[Y]our client understands that in moving for a mistrial, there would not be a double
jeopardy aspect. He is aware in making that motion?” Defense counsel responded yes
and the court granted the mistrial, observing there was no instruction that could “unring
this bell.”
       The second retrial began on September 23, 2013, at which time defense counsel
advised the court she was considering a motion to dismiss for prosecutorial misconduct,
based on the theory that jeopardy had attached during the previous trial and double


                                             17
jeopardy principles would be violated by proceeding after that mistrial. The court
reminded counsel that she had acknowledged jeopardy did not attach and indicated it
“would not have gone forward in the manner that I did had I known you were going to
object based on prosecutorial misconduct.”
       The court formally heard defense counsel’s motion to dismiss based on double
jeopardy on October 2, 2013, at which time defense counsel cited the federal Constitution
and argued the prosecutor had been attempting to “goad the defendant into moving for a
mistrial” because Jamal Kelly had refused to testify and witnesses Estrada and
Trojanowski had been impeached. Defense counsel also suggested the prosecution’s case
was not going well because its lead investigator was unavailable to sit through the entire
trial and the prosecutor was “annoyed” by the defense raising issues regarding the release
of Lewis’s car. The prosecutor denied this characterization of the proceedings, noting
(1) Kelly had not yet been called as a witness and it had always been anticipated he might
refuse to answer questions; (2) she believed Trojanowski and Estrada had done well as
witnesses; (3) she was unconcerned about her lead investigator being unavailable and
could have made other arrangements if she had been concerned; (4) she was not annoyed
by appellant’s Trombetta motion or issues regarding the release of the car; and (5) she
had nothing to gain from a mistrial, as she had been caring for her elderly mother, who
was suffering from dementia, and the longer the case went on the more difficult it was for
her personally. The prosecutor attributed her question about the prior trial and verdict to
the stress and fatigue caused by caring for her mother, who had a “major meltdown” on
the day of the mistrial, requiring several telephone calls. The court denied the motion to
dismiss.

       B. Analysis
       The double jeopardy clauses of the federal and state constitutions protect criminal
defendants from repeated prosecutions for the same offense. (People v. Batts (2003) 30




                                             18
Cal.4th 660, 678, 685 (Batts); U.S. Const., 5th Amend.; Cal. Const., art. I, § 15.)3 When
a defendant moves for a mistrial, “the general rule is that the defendant’s request . . .
constitutes consent that waives any double jeopardy claim, and hence there is no bar to
retrial.” (Batts, at pp. 679-680.) “[T]he normal and usually sufficient remedy for the vast
majority of instances of prejudicial prosecutorial misconduct that occur at trial is
provided under the federal and state due process clauses, and calls for either a declaration
of mistrial followed by retrial, or a reversal of a defendant’s conviction on appeal
followed by retrial.” (Id. at p. 666, italics omitted.)
       Under the federal double jeopardy clause, retrial is prohibited following the grant
of a defendant’s mistrial motion only if the prosecution committed the misconduct with
the intent to provoke a mistrial. (Oregon v. Kennedy (1982) 456 U.S. 667, 679
(Kennedy); Batts, supra, 30 Cal.4th at pp. 665, 682.) The California Constitution bars
retrial in an additional circumstance: “when the prosecution, believing (in view of events
that occurred during trial) that a defendant is likely to secure an acquittal at that trial,
knowingly and intentionally commits misconduct in order to thwart such an acquittal.”
(Batts, at p. 666.) In that circumstance, “retrial is barred under the state double jeopardy
clause only if a court, reviewing all of the circumstances as of the time of the misconduct,
finds not only that the prosecution believed that an acquittal was likely and committed
misconduct for the purpose of thwarting such an acquittal, but also determines, from an
objective perspective, that the prosecutorial misconduct deprived the defendant of a
reasonable prospect of an acquittal.” (Ibid.)
       In this case, the trial court’s order denying appellant’s motion to dismiss on double
jeopardy grounds was based on the finding the prosecutor was not attempting to goad the
defense into moving for a mistrial. “When the double jeopardy question requires the trial
court to resolve disputed facts, the appellate court reviews the case under the substantial


       3
          The Fifth Amendment of the United States Constitution provides that no person
shall “be subject for the same offense to be twice put in jeopardy of life or limb.” Article
I, section 15 of the California Constitution provides that “[p]ersons may not twice be put
in jeopardy for the same offense.”

                                               19
evidence standard. [Citation.]” (People v. Davis (2011) 202 Cal.App.4th 429, 438.) In
reviewing a ruling denying a motion to dismiss on double jeopardy grounds, “it is to be
expected that appellate judges ‘will not inexorably reach the same conclusion on a cold
record at the appellate stage that they might if any one of them had been sitting [on the
matter] as a trial judge,’ and that ‘appellate judges [should] defer to the judgment of trial
judges who are “on the scene” in this area.’ ” (Batts, supra, 30 Cal.4th at pp. 682-683,
citing Kennedy, supra, 456 U.S. at p. 676, fn. 7.)
       Assuming defense counsel did not forfeit the issue by her initial agreement that
jeopardy would not attach if she moved for a mistrial, the trial court did not err in
denying her subsequent motion for dismissal. Though the prosecutor’s question about
appellant’s first murder conviction showed poor judgment in light of the court’s prior
rulings, her explanation about believing the defense had opened the door was not
implausible and the trial court was in the best position to assess her motivations. In light
of the family situation she disclosed, a mistrial would have worked to the prosecutor’s
disadvantage, supporting the trial court’s determination that this was not her intention.
Substantial evidence supports the trial court’s finding the prosecutor did not intend to
cause a mistrial, and reversal is not required under the double jeopardy clause of the
federal Constitution.
       Nor are we persuaded that appellant was entitled to dismissal under the double
jeopardy clause of the California Constitution, on the ground that acquittal was likely and
the prosecutor asked the question about the first conviction in order to prevent that
acquittal.4 Contrary to appellant’s characterization of the record, the first retrial was not
going badly for the prosecutor. Only four witnesses had been called at that point, and
none of them provided unexpected exculpatory evidence that made an acquittal likely.
The prosecutor understood that appellant’s cohort Jamal Kelly would probably refuse to


       4
         Although defense counsel did not specifically rely on the California Constitution
in making the motion to dismiss, we address the claim on its merits to forestall
appellant’s claim that counsel was ineffective. (See People v. Reyes (2008) 165
Cal.App.4th 426, 434.)

                                              20
testify if called to the stand, but appellant had been convicted of first degree felony
murder in his first trial without Kelly’s testimony. Viewing the evidence from an
objective perspective, any misconduct committed by the prosecutor cannot be said to
have deprived appellant of a reasonable prospect of an acquittal. (Batts, supra, 30
Cal.4th at p. 666.) And, because the evidence would not support a finding that an
acquittal was objectively likely at that point in time, we decline appellant’s request that
we remand the case for a hearing on whether the prosecutor subjectively believed an
acquittal was likely and acted to avoid that result.

                    V. Direct Examination of Accomplice Jamal Kelly
       The prosecutor called Jamal Kelly as a witness and questioned him about whether
he and appellant intended to commit a robbery. Kelly refused to answer and was held in
contempt of court. Appellant argues the trial court should have granted his motion for
mistrial or motion for new trial on that ground, because the prosecutor’s questions
amounted to highly prejudicial testimony and cross-examination was not possible. We
disagree.

       A. Proceedings Below
       Kelly was interviewed by police and told them that on the way to buy the drugs
from Lewis, appellant said he was going to commit a robbery. Kelly was separately tried
and, based in part on his trial testimony to the same effect, was convicted of first degree
felony murder. The Court of Appeal affirmed that judgment in a decision issued
September 4, 2012, and review was denied by the state Supreme Court on December 19,
2012, before the retrial commenced in appellant’s case. (People v. Jamal Kelly (Sept. 4,
2012, A129688) [nonpub. opn.].)
       As an extrajudicial statement of a codefendant, Kelly’s statement to police about
the plan to commit a robbery was inadmissible unless Kelly testified and was available
for cross-examination. (See Bruton v. United States (1968) 391 U.S. 123, 126-127;
People v. Aranda (1965) 63 Cal.2d 518, 530-531.) The prosecutor indicated she wished
to call Kelly as a witness, and Kelly was ordered to appear and was examined outside the


                                             21
presence of the jury. Although the court and the parties agreed that Kelly could not
refuse to testify on Fifth Amendment grounds given that his conviction was final (see
People v. Lopez (1999) 71 Cal.App.4th 1550, 1554), Kelly repeatedly stated “no
comment” to the prosecutor’s questions about the shooting.
      At trial, the prosecution called Kelly as a witness, apparently anticipating he
would not answer questions. The following exchange occurred: “Q: Mr. Kelly, were you
present with Mr. Malone on the night of November 2, 2008 when he shot and killed
Kendrick Lewis? [¶] A: No comment. [¶] . . . [¶] [Q]: Did you witness the shooting of
Kendrick Lewis? A: No comment. Q: Did you tell the police that you saw Mr. Malone
shoot Mr. Lewis? A: No comment. Q: Did you tell the police that you were there with
Mr. Malone to rob Mr. Lewis? A: No comment.” The trial court directed Kelly to
answer the questions. The prosecutor continued, “Did you tell the police you were there
with Mr. Malone to rob Mr. Lewis?” to which Kelly again responded, “No comment.”
Defense counsel objected and the court struck the two previous questions by the
prosecutor. The exchanged continued: “Q: Did you witness the events that occurred—
A: No comment. Q: Did you talk to the police about the events that occurred November
2, 2008? A: No comment.” The court advised Kelly that the failure to follow an order to
answer questions was contempt of court and the prosecutor asked, “Are you going to
answer any questions about November 2, 2008?” Kelly again responded, “No comment,”
and the court found him in contempt.
      During a discussion outside the presence of the jury, defense counsel argued that
the prosecutor’s questions were “highly inappropriate” because the jury could infer that
appellant and Lewis had planned a robbery and Lewis was not available for cross-
examination on that point. The court offered to allow defense counsel to cross-examine
Kelly, but counsel declined, noting there was “nothing to cross-examine him [about].”
The court agreed with the prosecutor that questions were not evidence, and noted it was
anticipated appellant would testify, and if he indicated he had not planned a robbery with




                                            22
Kelly, Kelly’s prior statements to that effect would not be admissible to impeach
appellant due to confrontation clause issues.5
       Immediately thereafter, the court admonished the jurors they were not to consider
the effect of the court holding Kelly in contempt and advised them: “[Q]uestions are not
evidence. Only the witness’s answers are evidence. Questions presented by any of the
attorneys that suggest any facts or suggest any information are just questions. Only the
witness’s answers are evidence. The questions are only helpful to the extent they assist
you to understand the witness’s answers.” This admonishment was echoed in CALCRIM
No. 104, given at the end of the case.
       The following day, Detective Morris recounted his interview of appellant and
erroneously stated that appellant had said he had intended to rob the victim of drugs and
was going to pull out a gun when given a sign by Kelly. Morris corrected this testimony
on cross-examination, noting he may have confused the statements with another witness
and appellant did not in fact make that statement. After Morris had testified, defense
counsel indicated she was “a little uncomfortable” with the possible inference that Morris
had confused appellant’s interview with Kelly’s, and would infer that in fact Kelly had
made the statement about the robbery. The court indicated it believed the problem had
been cured through cross-examination, but offered to allow defense counsel to ask
follow-up questions about the number of interviews Morris had done during the course of
his career. Morris was recalled to the stand and testified he had reviewed the transcript of
his interview with appellant and had been mistaken when he said appellant had admitted
committing a robbery. He had interviewed appellant five years previous to the trial, in
2008, and had conducted interviews of hundreds of other suspects since that time,
possibly leading to his confusion.
       Defense counsel ultimately requested a mistrial based on the prosecutor’s
questioning of Kelly and Detective Morris’s testimony about his mistaken belief
appellant had admitted intending to commit a robbery. Counsel argues that the

       5
        Appellant did not testify during the retrial from which this appeal is taken, even
though he testified at the first trial.

                                            23
examination of these two witnesses, taken together, would improperly suggest to the jury
that Kelly had told the police appellant planned a robbery—evidence that was clearly
inadmissible in appellant’s trial. Defense counsel raised the issue again in a motion for
new trial which characterized the prosecutor’s examination of Kelly as prosecutorial
misconduct. (See § 1181, subd. 5.) The trial court denied the motion.

       B. Analysis
       We begin our discussion of the issue by noting that it was appropriate for the
prosecutor to call Kelly as a witness, even though it was relatively certain Kelly would
refuse to answer questions. “[A] prosecutor is not required to accept at face value every
asserted claim of privilege, and he may compel a witness to claim the privilege against
self-incrimination on a question-by-question basis.” (People v. Shipe (1975) 49
Cal.App.3d 343, 349 (Shipe).) However, a prosecutor “may not, under the guise of cross-
examination, get before the jury what is tantamount to devastating direct testimony.”
(Ibid.; see Douglas v. Alabama (1965) 380 U.S. 415, 420 (Douglas.) “Under the
confrontation clause of the Sixth Amendment, a defendant has the right to confront and
cross-examine witnesses presented against him. [Citation.] A defendant’s confrontation
rights may be violated where a prosecutor examines a recalcitrant witness and poses
questions that relate to prior statements made by that witness, in circumstances where the
witness’s recalcitrance effectively prevents cross-examination concerning those prior
statements. [Citations.]” (People v. Morgain (2009) 177 Cal.App.4th 454, 463
(Morgain).)
       Appellant argues the prosecutor should not have been permitted to ask Kelly
whether he had previously told police that he and appellant intended to commit a robbery.
He relies on the decisions in Shipe and Douglas, which are distinguishable. In both
cases, a witness made a statement to law enforcement regarding the defendant’s
involvement in the crime and then refused to testify at trial. (Douglas, supra, 380 U.S. at
pp. 416-417; Shipe, supra, 49 Cal.App.3d at pp. 345-346.) The prosecutors proceeded to
ask several leading questions detailing the facts of the alleged crime, prefaced by “Is it



                                             24
not true that . . . ? (Shipe, at pp. 346-349) or followed by “Did you make that statement?”
(Douglas, at pp. 416-417). In neither case were the questions stricken or the jury
admonished that the questions were not evidence. (Morgain, supra, 177 Cal.App.4th at
p. 465 [rejecting similar challenge and distinguishing Douglas and Shipe].)
       The prosecutor’s initial questions to Kelly—whether he was present at the scene of
the shooting, whether he saw the shooting, and whether appellant was the shooter—could
not have prejudiced appellant’s case in any way because they referred to facts that were
not disputed by the defense. The two questions regarding whether Kelly had told police
that he and appellant were going to rob Lewis were stricken and the jury was advised it
could not consider them as evidence. We presume the jury followed that instruction, and
that consequently, the jury did not treat the prosecutor’s questions as the equivalent of
testimony by Kelly. (Morgain, supra, 177 Cal.App.4th at p. 465.)
       This is not a case, like People v. Murillo (2014) 231 Cal.App.4th 448, 455-457
(Murillo), in which “the prosecutor’s leading questions are tantamount to evidence and
overpower the proceedings so that the resulting prejudice is incurable by admonition or
instruction. [Citation.]” In Murillo, a witness who identified the defendant before trial in
a photographic lineup refused to answer questions at trial. His identification to police
was the only eyewitness identification of the defendant. The trial court allowed the
prosecution to ask the witness 110 leading questions concerning the details of his out-of-
court statement and identification, and in response to each question, the witness said he
had “ ‘nothing to say’ ” or did not respond. (Id. at pp. 450-451.) The trial court allowed
the prosecutor to display the photographic lineup on which the witness had circled
defendant’s photo, along with other photos of the witness himself, and the witness
refused to answer any questions about these exhibits. In the present case, the alleged
inability to confront Lewis arises from two questions (in reality, from a single question
twice repeated) and any improper inference was cured by the court’s admonition.
       Nor does the testimony of Detective Morris change the equation. Morris initially
testified that when interviewed, appellant acknowledged he intended to rob Lewis. But it
became abundantly clear through cross-examination that Morris was simply mistaken on


                                             25
this point, most likely because a number of years had passed and he had interviewed
hundreds of subjects since appellant. There is no danger the jury improperly construed
Morris’s testimony to mean that either appellant or Kelly admitted a robbery was
intended.
       “A trial court should grant a mistrial only when a party’s chances of receiving a
fair trial have been irreparably damaged, and we use the deferential abuse of discretion
standard to review a trial court ruling denying a mistrial. [Citation.]” (People v. Bolden
(2002) 29 Cal.4th 515, 555.) There was no abuse of discretion here because the
prosecutor’s examination of Kelly and Detective Morris did not deprive appellant of his
right to a fair trial. Similarly, the court did not abuse its discretion in denying the motion
for new trial on the same ground. (See People v. Lightsey (2012) 54 Cal.4th 668, 729
[applying abuse-of-discretion standard to motion for new trial based on prosecutorial
misconduct].)
       Finally, we would conclude any error or misconduct on the grounds alleged by
appellant were harmless beyond a reasonable doubt under the standard for reviewing
federal constitutional error. (Shipe, supra, 49 Cal.App.3d at p. 355, citing Chapman v.
California (1967) 386 U.S. 18, 23-24.) The questions asked of Kelly and the “corrected”
testimony of Detective Morris concerned appellant’s intent to commit a robbery, as was
necessary for a conviction of first degree felony murder under the prosecution’s theory of
the case. The jury acquitted appellant of first degree felony murder, demonstrating it did
not draw the improper inferences with which defense counsel was concerned.

                                   VI. Cumulative Error
       Appellant argues the errors he has alleged were cumulatively prejudicial and
require reversal, even if they were individually harmless. We disagree. We have
assumed error for purposes of analysis with respect to one of the five issues raised by
appellant and have found no error in connection with the others. There is no error to
cumulate. (People v. Thornton (2007) 41 Cal.4th 391, 453.)




                                              26
                                  DISPOSITION
      The judgment is affirmed.




                                           NEEDHAM, J.



We concur.




JONES, P.J.




BRUINIERS, J.




                                      27
