Filed 2/26/15 P. v. Pullen CA5




                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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

                                       FIFTH APPELLATE DISTRICT

THE PEOPLE,
                                                                                     F066371/F067264
         Plaintiff and Respondent,
                                                                         (Fresno Super. Ct. No. F09905156)
                   v.

DONOVAN DEWAYNE PULLEN,                                                                  OPINION
         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of Fresno County. John F. Vogt,
Judge.
         Cara DeVito, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Jeffrey
D. Firestone, Deputy Attorneys General, for Plaintiff and Respondent.
                                                        -ooOoo-
                                      INTRODUCTION
       Appellant/defendant Donovan Dewayne Pullen was arrested for assaulting his
wife, Luevater Fulmer, in their apartment. He was charged and convicted of count I,
corporal injury to a spouse/cohabitant (Pen. Code, § 273.5, subd. (a));1 count II, assault
by means likely to produce great bodily injury (§ 245, subd. (a)(4)); and count III,
criminal threats (§ 422), with special allegations as to counts I and II for the personal
infliction of great bodily injury under circumstances involving domestic violence
(§ 12022.7, subd. (e)), one prior strike conviction (§§ 667, subds. (b)–(i), 1170.12,
subds. (a)–(d)), one prior serious felony enhancement (§ 667, subd. (a)(1)), and four prior
prison term enhancements (§ 667.5, subd. (b)). He was sentenced to an aggregate term of
25 years and four months.
       The criminal proceedings were repeatedly suspended and delayed because
defendant was found not competent to stand trial. After two commitments to Atascadero
State Hospital, defendant was restored to competency. He pleaded not guilty and not
guilty by reason of insanity. After the jury convicted him of the substantive offenses, the
same jury heard the sanity phase and found he was legally sane when he committed the
offenses.
       On appeal, defendant contends the court should have sanctioned the prosecution
during the guilt phase because the investigating officer failed to order the collection and
preservation of blood from two separate areas in the apartment, in violation of his due
process rights pursuant to Arizona v. Youngblood (1988) 488 U.S. 51 (Youngblood) and
California v. Trombetta (1984) 467 U.S. 479 (Trombetta). Defendant argues the blood
samples could have been exculpatory and supported his trial testimony that his wife
initiated the assault and stabbed him. He also claims the prosecutor committed
prejudicial misconduct during his rebuttal argument in the guilt phase because he

       1   All further statutory citations are to the Penal Code unless otherwise indicated.


                                               2.
allegedly misled the jury about whether defendant’s wife had a criminal record.
Defendant further argues the court should have granted his motion for a new sanity trial
because of allegations that a juror fell asleep during the sanity phase. We affirm.2
                                         FACTS
Defendant’s Prior Acts of Domestic Violence
       Defendant and Luevater Fulmer (Fulmer) had known each other since they were
children and lived together for several years before their marriage.
       In 2003, defendant and Fulmer argued because he accused her of cheating on him.
Fulmer started to leave their apartment. Defendant hit her and knocked her out, and
Fulmer did not remember anything after that. Fulmer woke up in the hospital four days
later. Her jaw had been broken in three places, and she had a shattered cheek bone.
Fulmer testified her “whole memory lapsed” as a result of the incident. Defendant was
convicted of assault by means likely to produce great bodily injury, with a great bodily
injury enhancement.
       In 2004, defendant and Fulmer were married.
       In June 2009, defendant and Fulmer argued because he wanted to have sex and she
refused. Defendant grabbed her neck and pinned her to the wall. Defendant warned
Fulmer that he would snap her neck if she moved.
Defendant’s Statements to Joann Espinoza
       In August 2009, defendant and Fulmer were living in an apartment complex. One
day, defendant saw their neighbor, Joann Espinoza (Espinoza), as she was about to drive
out of the parking lot. Defendant asked for a ride and she agreed.




       2 Defendant’s initial notice of appeal from his convictions and sentence is case
No. F066371. The superior court later issued a restitution order, and defendant filed a
notice of appeal from that order in case No. F067264. On July 18, 2013, this court
granted defendant’s motion to consolidate both appeals under case No. F066371.


                                             3.
          Espinoza testified defendant got into her car, and he was very upset and distraught.
Defendant said he and Fulmer were fighting. He said Fulmer was having sex with “other
guys behind his back.” Defendant said he wanted to kill Fulmer because she caused him
too much anguish. Espinoza told defendant to leave the relationship if it was that bad.
Defendant did not appear under the influence, and he did not threaten to kill himself.
          Espinoza testified she did not take defendant’s threat to kill Fulmer seriously. She
did not tell Fulmer, and she did not call the police because “it’s just the way people
talk.”3
                                THE CHARGED OFFENSES
          Fulmer testified that around 1:00 a.m. on September 1, 2009, she was sitting on a
chair in front of their apartment.4 Two men walked past her. She did not know them.
          Defendant arrived at the apartment complex on his bicycle and saw the two men.
Defendant raised his voice and accused Fulmer of talking to the men. He asked why they
rushed away. Fulmer replied the men did not speak to her, and they just walked by.
Defendant did not believe her. He accused her of cheating and flirting with the men.
          Fulmer testified she did not want to argue with defendant, and she went inside
their apartment. Defendant followed her. Fulmer sat on the couch and watched
television. She was going to smoke marijuana. Defendant stood in front of the television
and asked why she was cheating on him. Fulmer again denied she talked to the men.
          Defendant ran up to Fulmer and repeatedly punched her in the head. Fulmer tried
to block the blows, and she kicked him away from her. She tried to escape out the door,
but defendant grabbed her around the neck. He threw her to the floor, sat on top of her,
choked her with both hands, and said he was going to kill her. Fulmer could not breathe

          3
         It was stipulated that Espinoza had a misdemeanor conviction for grand theft
(§ 487) in 2000.
          4
        Fulmer testified she may have consumed a beer and smoked marijuana on
August 30, 2009.


                                               4.
and was gasping for air. She thought she was going to die. She tried to scratch and
punch defendant. Fulmer testified “everything went black,” and she briefly lost
consciousness.
        Fulmer woke up and discovered defendant was still sitting on top of her stomach
in the living room. His hands were around her neck and he said, “ ‘Bitch, I’m gonna kill
you.’ ” Defendant squeezed her throat, and Fulmer again lost consciousness.
        When she woke up, defendant was still on top of her. He said: “ ‘Bitch, I’m
gonna kill you, and then I’m gonna kill myself. They gonna find both of us dead up in
this house.’ ” Fulmer believed defendant was going to kill her because “he never choked
me out like that before.” He choked her with more force than he used during the previous
month’s incident. Fulmer tried to punch and kick defendant, but he stayed on top of her.
Defendant started to squeeze her neck again, and Fulmer turned to her side to protect
herself.
        As Fulmer turned, defendant grabbed her head and slammed it on the living room
floor three times. Fulmer passed out again and was unconscious for a longer period of
time.
        Fulmer testified that when she woke up, she was still lying on the living room
floor, and her head was in a large pool of blood. She tried to sit up, but her hands slipped
and smeared the blood on the floor. Defendant was sitting on the living room floor with
his back against the wall, and said, “I’m going back to jail.” Defendant also said: “I
promised God I wouldn’t hurt you no more,” and “I promised you that I wouldn’t hurt
you no more.” Fulmer knew he was talking about the previous domestic violence
incidents.
        Fulmer and defendant got up and sat on the couch. She tried to keep him calm so
she could escape. Fulmer told defendant she forgave him, and they would keep things
quiet. Defendant grabbed her hand and said he did not know what he was going to do
next. After 30 minutes, Fulmer felt she was going to pass out from her injuries, and

                                             5.
blood was running down the side of her head. Defendant positioned a fan to blow on her,
but she still felt like she was going to faint. Defendant walked Fulmer to the closet to get
a towel. He walked her into the bathroom, wet the towel, and then walked her back to the
couch. Fulmer pressed the towel on her head and tried to stop the blood. There was
blood all over her shirt.
       Defendant told Fulmer that he was going to kill himself. He dragged her to the
kitchen and grabbed a steak knife from the drawer. Fulmer tried to resist and get away,
but defendant pulled her down to the dining room floor, and sat next to her.
       Defendant and Fulmer sat together on the dining room floor. Defendant said he
was going to kill himself. Fulmer told him no. Defendant repeated that he was going to
kill himself. He pressed the knife against his own stomach, but he did not break the skin.
Fulmer testified defendant never threatened her with the knife or placed it against her
stomach.
       Fulmer testified as defendant pressed the knife to his stomach, he stopped and
said, “ ‘No I’m not gonna kill myself .… You kill me because I don’t want to lose my
soul in hell.’ ” Fulmer repeatedly refused. Defendant placed Fulmer’s hand on the knife
handle and tried to push her hand down so the knife was on his stomach.
       After a few minutes, Fulmer resisted defendant and pushed away the knife.
Defendant let her go and said he was just going to kill himself. Fulmer ran to the door.
Defendant told her to take her cell phone. Fulmer was afraid he was going to stop her, so
she ran out of the apartment without her cell phone.
       Fulmer testified that when she ran out of the apartment, defendant was still sitting
on the dining room floor, and he was holding the knife.
The 911 Call
       Fulmer pounded on Espinoza’s door for help. Espinoza testified Fulmer was
screaming and crying, and said she had to call 911 because defendant had beat her.



                                             6.
Fulmer was bleeding from her forehead. Espinoza gave Fulmer the telephone and a
towel to stop the bleeding. Espinoza testified Fulmer was shaken and distraught.
       At 3:00 a.m., Fulmer called 911 and told the dispatcher that defendant “ ‘choked
me out’ ” and “ ‘busted my head on the floor.’ ” Fulmer said defendant was trying to kill
himself, that she was afraid for her life, and she was scared to go home because she might
find her husband lying on the floor dead.5
       As Fulmer waited for the police to arrive, she was still crying and upset. Espinoza
testified Fulmer said defendant tried to kill her, that he had choked her and tried to use a
knife to stab her in the stomach.6
The Initial Investigation
       At 3:13 a.m., Officer Pierce Masse arrived at the apartment complex with his field
training officer and six to eight additional officers.7 He spoke to Fulmer outside
Espinoza’s apartment. Masse testified Fulmer’s face, neck and shirt were covered with
blood. Her left eye, cheek, and forehead were swollen. There was a one-inch laceration
on her left eye, and she had scrapes and bruises on her knees, left wrist, and minor
swelling on her left forearm. She held a towel against the left side of her head, through
which blood was seeping. Masse called an ambulance for Fulmer.
       Officer Masse testified Fulmer was upset but calm. Fulmer said defendant was in
her apartment, he had a knife, and he said that he was going to kill himself. Fulmer gave
her consent for the officers to enter her apartment.

       5 The 911 recording was played for the jury. The parties were unable to agree as
to whether the transcription was true and accurate. The court instructed the jury to make
that determination.
       6At trial, Fulmer denied that she told Espinoza that defendant threatened to cut
her with the knife and testified that never happened.
       7 Officer Masse testified that when he investigated this case, he had been a peace
officer for about five weeks, he was still in training with his training officer, and he had
graduated from the six-month program at the police academy.


                                              7.
       Officer Masse asked the dispatcher to call the cell phones for both Fulmer and
defendant so they could talk to defendant. Defendant did not answer.
Entry into the Apartment and Discovery of Defendant
       Officer Masse and other officers approached Fulmer’s apartment. Masse opened
the outer security door, and the front door was already open. Masse looked inside and
saw defendant lying face down on the dining room floor in a pool of blood. Defendant
was on his right side and his right hand was over his head. His left hand was lying in the
blood.8 He was not moving. A knife was on the floor, about eight feet away from
defendant.
       The officers rushed in and placed defendant in handcuffs before he could react or
grab the knife. Defendant looked at Officer Masse with a blank stare. Masse discovered
defendant had a large laceration on his left wrist, which was bleeding and covered with
blood. Defendant was taken into custody and a second ambulance was called for him.
Masse was unable to obtain a statement from defendant.
Fulmer’s Statement at the Scene
       After defendant was taken into custody, Officer Masse conducted a longer
interview with Fulmer as she was being treated by paramedics at the apartment complex.
Fulmer said defendant arrived at their apartment on his bicycle just as three men walked
by. Defendant asked why she was talking to them and accused her of cheating on him.
Fulmer said she walked into the apartment and sat on the couch because she did not want
to argue with him. Defendant punched her in the face. Fulmer said she was stunned, and
she kicked at him to get away. Defendant punched her eight or 10 times, grabbed her
throat with both hands, and choked her. Fulmer struggled and defendant said he was
going to kill her. She lost consciousness.


       8
       Upon reviewing a photograph taken of the dining room, Fulmer testified that it
showed a large pool of blood, and that she did not bleed that much from her head wound.


                                             8.
      Fulmer said when she woke up, defendant still had his hands around her throat.
He again said he was going to kill her. He squeezed her throat and she passed out.
Fulmer said she woke up, and defendant threw her to the floor, sat on top of her, and
started to choke her again. Fulmer said she tried to kick and scratch him, but he was
larger than her. Defendant slammed her head into the ground, and she might have lost
consciousness.
      Fulmer said defendant eventually helped her up, and they sat on the couch. He
apologized, but then he dragged her to the kitchen. Defendant grabbed a knife and said
he was not going to kill her, but he was going to make Fulmer kill him. Defendant held
the knife against his abdomen and placed Fulmer’s hand against the knife. Defendant
again said he was going to make Fulmer kill him. Fulmer tried to calm defendant and
pleaded with and apologized to him. Defendant calmed down, and she threw the knife on
the floor. Fulmer said they sat and talked for nearly two hours, and she tried to keep him
calm. Defendant apologized for hurting her. Defendant suddenly became angry again
and told her to leave because he was going to kill himself. Fulmer ran to the neighbor’s
home and called 911.
Espinoza’s Statement
      After he spoke to Fulmer, Officer Masse interviewed Espinoza, who was initially
reluctant to answer questions. Espinoza said Fulmer ran into her apartment and asked to
call 911. Espinoza said she did not hear defendant and Fulmer arguing, and she did not
see what happened.
      Espinoza told Officer Masse about the prior incident when she gave defendant a
ride. Defendant was upset and said he was planning to kill Fulmer because she was
cheating on him. Espinoza said defendant seemed really serious, and he was not joking




                                            9.
when he said that. However, Espinoza did not tell Fulmer about the threat or report it to
the police.9
Crime Scene Evidence
       Officer Masse testified that when he initially entered the apartment and found
defendant, he also found two separate pools of blood. One pool was on the dining room
floor. Defendant was lying in this pool of blood, and his left hand was bleeding into it.
The second pool of blood was on the living room floor. Masse testified the blood on the
living room floor had been smeared, but there was no blood trail or drops between the
two pools of blood and the knife.
       Carmen Robles, the police department’s crime scene technician, also testified that
she found two separate pools of blood on the living and dining room floors, and there was
no blood trail between the two locations. A kitchen knife was on the dining room floor,
and there was blood on the blade.
       Both Officer Masse and Ms. Robles testified that blood samples were not taken
from the blood pools on the dining and living room floors, or from the knife. Masse
testified that he discussed the blood evidence with his field training officer and Ms.
Robles. Masse testified that he decided not to ask Ms. Robles to collect any blood
samples because there was no real question about the sources of the blood. Masse
testified that when he initially entered the apartment, defendant was lying face down on
the dining room floor, his left wrist was cut, it was bleeding, and he was lying in the pool
of blood. Masse testified that Fulmer said defendant assaulted her in the living room, and
the blood and smears on the living room floor were consistent with her description of her
struggle with defendant.



       9Espinoza was reluctant to testify and explained that prior to trial, her former
boyfriend had been held in jail with defendant. He told Espinoza that defendant had
confronted him and threatened Espinoza.

                                            10.
       Officer Masse testified his field training officer agreed with his decision not to
order the collection of blood samples. Ms. Robles collected the knife and processed it for
fingerprints, and the results were negative.10
       Officer Masse conceded he did not absolutely know whose blood was on the
dining and living room floors. However, he believed the blood on the dining room floor
was from defendant based on the scene he encountered when he entered the apartment.
Masse further believed the blood on the living room floor was from Fulmer based on the
detailed account she gave of the assault.
       Officer Masse testified Fulmer was holding a towel to her head wound when he
initially contacted her at Espinoza’s apartment. The towel did not appear to be relevant
evidence and he did not collect it. He did not collect Fulmer’s bloody shirt, and he did
not find or collect the towel that defendant gave Fulmer in the apartment to stop the
bleeding.11
Medical Evidence
       Fulmer
       Both Fulmer and defendant were taken to the hospital and treated in the
emergency room by Dr. Geoffrey Stroh. Dr. Stroh testified that Fulmer had a two-
centimeter laceration on her left temple, above her eye. It was superficial and not deep.
She needed three stitches to close the laceration.


       10  In issue I, post, we will address defendant’s claim that the People’s failure to
obtain and preserve blood samples from the living and dining room floors violated his
due process rights under Trombetta and Youngblood because the evidence would have
been exculpatory and supported his version of the incident. At trial, defendant claimed
for the first time that Fulmer assaulted and stabbed him in the living room, and his blood
was on the living room floor.
       11 The defense also cross-examined Officer Masse about his failure to collect a
bloody “towel” depicted in photographs of the dining room area. However, additional
trial evidence revealed the item was actually gauze used by the paramedics to stop
defendant’s bleeding.

                                             11.
         Fulmer also had swelling, a superficial laceration, and abrasions on her left cheek
and the left side of her neck, swelling on her scalp, and scrapes on her knees. She had
redness on her chest which extended from the left upper side to the base of her neck.
There was also redness on her left forearm and right kneecap.
         A CT scan revealed a depressed fracture to Fulmer’s right cheekbone. The bone
had been pushed inward, but it was still intact. Dr. Stroh was not sure whether the
fracture was a new injury and noted the radiology report failed to indicate whether it was
an old or healed injury.
         Fulmer told the medical staff she had been choked, thrown against the floor, and
she lost consciousness. Dr. Stroh presumed Fulmer suffered a concussion based on her
head injuries and her description of losing consciousness.
         Defendant
         The paramedic who treated defendant at the apartment testified he was moaning
and unresponsive to commands. Defendant had a jagged cut to his left wrist that was
oozing blood. As the paramedics rendered care, defendant showed some alertness. By
the time defendant arrived at the hospital in police custody, he was oriented and able to
speak.
         Dr. Stroh testified defendant had a three-centimeter laceration on his left wrist,
which consisted of one large cut and perhaps two smaller cuts. The wound was not deep,
it was superficial, and it was not bleeding. The wound was closed with a suture. He did
not have any other injuries. Defendant told the medical staff he cut his left wrist with a
steak knife while he was sitting down; he felt dizzy; and he laid down.
         Dr. Stroh reviewed the photographs of the blood in the living and dining rooms.
He testified that either amount of blood could have come from Fulmer’s scalp wound or
defendant’s wrist laceration.
                                   DEFENSE EVIDENCE
         Defendant was the only defense witness.

                                              12.
The Prior Domestic Violence Incidents
      Defendant testified he had a felony conviction in 1993 for stealing a truck. He
claimed Fulmer’s brother loaned the truck to him; he did not know it was stolen; and he
was arrested because he had drugs in his pocket. Defendant admitted that in 2003, he
was convicted for assault with means likely to cause great bodily injury and that he
caused great bodily injury. Defendant testified he hit Fulmer “a couple of times” when
they argued about whether she had been “messing” with his brother.
      Defendant admitted he grabbed Fulmer in June 2009, but denied that he grabbed
her throat and pinned her against the wall. Defendant testified the incident occurred
because Fulmer wanted to smoke crack, she was irritable, and she was “going off.”
The Charged Offenses
      Defendant testified that he rode his bicycle to his apartment around 10:00 p.m. on
August 31, 2009, and saw two men walking away. He recognized one man as someone
he had beaten and thrown out of his apartment a few months earlier.
      Defendant went into the apartment and confronted Fulmer with his concerns about
the men. He believed the men were molesting their grandchildren because he had seen
“stuff” in his granddaughter’s panties. He also believed Fulmer was cheating on him.
Defendant thought Fulmer had previously put something in his drink to knock him out
when their granddaughter spent the night, so he would not know what was going on.
      Defendant testified Fulmer became offensive, and said he was “trippin’ ” and
lying. Defendant threatened to report Fulmer for child molestation. They argued, and
Fulmer walked into the kitchen.
      Defendant testified he sat on the couch and watched television. Fulmer walked up
to the couch, and he suddenly felt something hit his wrist. Fulmer was holding a knife
and defendant’s left wrist was bleeding. Defendant pushed her back, jumped off the
couch, and punched her more than twice in the head. Fulmer “crunched” down and



                                           13.
defendant “clobbered her on the top of her head” two more times, and she had a cut on
her head.
       Defendant testified he was afraid Fulmer would stab him with the knife again, and
he would die. He used force to defend himself, even though Fulmer was smaller than he
was, because she was strong, a little dangerous, and tough when she was angry.12 He
believed Fulmer stabbed him because she feared he would report her involvement with
the two men and their granddaughter’s purported molestation.13
       Defendant testified he “rushed” Fulmer to take away the knife. He “took her
down” to the living room floor. He held her hand and wrist and tried to get the knife.
Fulmer flipped around, and they wrestled on the floor. He finally got the knife and threw
it under the couch. Defendant lay on top of Fulmer’s stomach with all his weight.
       Defendant testified he picked up Fulmer, and they both stood up. His arm was
bleeding, and he took off his tank top shirt and wrapped it around the wound. They went
into the kitchen, and Fulmer used a dish towel to stop her bleeding. They talked about
their argument, and Fulmer smoked “weed.”
       About an hour later, defendant told Fulmer he would patch himself up. Fulmer
said she would help fix his wound. However, Fulmer ran out the door and left.
       Defendant panicked when she left and felt “something was going to go bad”
because he was on parole, and there was marijuana in the apartment. He walked to the
dining room table and passed out. His wrist was still wrapped in his shirt.14 Defendant

       12 Defendant admitted he was a trained boxer who fought 40 bouts. Defendant
was six feet seven inches tall, and weighed 240 to 260 pounds. Fulmer was five feet four
inches tall and weighed 110 pounds.
       13 At trial, Fulmer testified she did not inflict any injuries on defendant, she did
not cut him with the knife, she did not knock him out, and she did not try to kill him. She
might have kicked him when she was trying to push him away.
       14 Officer Masse testified that when he entered the apartment, defendant was lying
on the floor and nothing was wrapped around his wrist wound. Masse never saw a
bloody shirt in the apartment.

                                            14.
testified the knife was not in the dining room when he passed out. He did not remember
being handcuffed. He woke up when he heard the ambulance siren.
       Defendant testified the blood found on the living room floor resulted from Fulmer
stabbing his wrist. He did not know whose blood was on the dining room floor where he
was found. “It wasn’t tested…. It could have been somebody else[’s] blood. It could be
her blood…..” Defendant admitted Fulmer was injured and bleeding after he hit her, but
“it wasn’t that much blood.” Defendant did not know whether the knife on the dining
room floor was the same weapon that Fulmer used to stab him, and thought it might be
covered in paint or tomato paste instead of blood.
       Defendant denied Fulmer’s entire account of the incident. He claimed he never
put his hands around Fulmer’s neck, choked her, slammed her head on the floor,
apologized for beating her again, threatened to kill himself, asked Fulmer to kill him with
the knife, or slit his own wrist. However, defendant “guess[ed]” he might have caused
her injuries. Defendant denied making the statements attributed to him by Fulmer,
Espinoza, Officer Masse, and the hospital staff.
       Defendant testified he spoke to Officer Masse at the hospital and said that Fulmer
slit his wrist. Defendant told Masse that Fulmer put something in his drink to knock him
out, she allowed someone to molest their granddaughter, and he could not sleep because
Fulmer left at night to cheat on him. Defendant denied that he said there were naked
children in his apartment.
       Defendant testified that after he was arrested, Fulmer wrote and visited him in jail,
put money in his jail account, and sent him photographs. He believed that Fulmer did not
want him to talk about her involvement in child molestation.15 Defendant claimed he



       15 Espinoza testified she spoke to Fulmer after defendant had been taken into
custody. Fulmer said she had second thoughts about the case and felt bad about him
going to jail.

                                            15.
tried to report Fulmer to child protective services, but it did not investigate his
allegations.16
                                        REBUTTAL
       Officer Masse interviewed defendant at the hospital at 5:38 a.m. Defendant was
coherent, cooperative, and respectful. Masse asked defendant about the cut on his wrist.
Defendant did not answer the question. Instead, defendant said Fulmer smoked crack,
and he could not sleep because she would leave the apartment and cheat on him. Masse
again asked what happened. Defendant said they argued about why she was cheating on
him; he was angry; he “snapped,” and his next recollection was waking up on the floor
with the cut on his wrist. Defendant said he might have punched Fulmer, but he could
not remember, and he was not sure. Defendant never said Fulmer cut him with the knife.
       Officer Masse testified defendant vaguely talked about child molestation and said
there were naked babies in the bedroom, and Fulmer was possibly responsible. Masse
asked for more details, but defendant could not provide the children’s names, why
Fulmer was involved, or what happened. Defendant became emotional. He said, “The
babies, the babies” and sobbed. Masse testified he did not include these statements in his
report because defendant seemed to be rambling and did not provide any information for
following up.
       Officer Masse was asked to review the “nurses’ notes” from the hospital, which
indicated that defendant said: “F my wife. I don’t want to kill myself.” Masse testified
he never heard defendant make this statement.




       16 Traci Morales of the Department of Social Services testified that in July 2012,
she received a referral and investigated allegations that defendant’s granddaughter had
been molested. Morales concluded the allegations were unfounded and closed the case in
August 2012.

                                              16.
                                      DISCUSSION
I.     Denial of Trombetta/Youngblood motion
       Defendant contends the court violated his federal and state due process rights by
denying his pretrial motion, brought pursuant to Trombetta and Youngblood, to sanction
the prosecution because of Officer Masse’s “willful failure” to collect and preserve the
blood on the living and dining room floors. Defendant argues the blood evidence could
have been exculpatory and shown that his blood was on the living room floor. Defendant
argues the blood evidence would have been consistent with his trial testimony that he did
not initiated the attack upon Fulmer, but that she stabbed him in the living room. As we
will explain, defendant’s due process rights were not violated in this case.
       A. Trombetta/Youngblood
       We begin with the applicable legal standards. Law enforcement agencies have a
duty under the due process clause of the Fourteenth Amendment to preserve evidence
“that might be expected to play a significant role in the suspect’s defense.” (Trombetta,
supra, 467 U.S. at p. 488, fn. omitted.) To fall within the scope of this duty, the evidence
“must both possess an exculpatory value that was apparent before the evidence was
destroyed, and be of such a nature that the defendant would be unable to obtain
comparable evidence by other reasonably available means.” (Id. at p. 489.)
       The state’s responsibility is further limited when the defendant’s challenge is
based on the failure to preserve potentially exculpatory evidence – that is, “evidentiary
material of which no more can be said than that it could have been subjected to tests, the
result of which might have exonerated the defendant.” (Youngblood, supra, 488 U.S. at
p. 57, italics added.) “[U]nless 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.” (Id. at p. 58; People v. DePriest (2007) 42 Cal.4th 1, 41–42.)
       “The presence or absence of bad faith by the police for purposes of the Due
Process Clause must necessarily turn on the police’s knowledge of the exculpatory value

                                            17.
of the evidence at the time it was lost or destroyed. [Citation.]” (Youngblood, supra, 488
U.S. at pp. 56–57, fn. *.) It is significant whether the state knew the evidence could form
a basis for exonerating the defendant and failed to preserve it as part of a conscious effort
to circumvent its constitutional discovery obligation. (Trombetta, supra, 467 U.S. at
p. 488.) The negligent destruction of, or failure to preserve, potentially exculpatory
evidence, without evidence of bad faith, will not give rise to a due process violation.
(Youngblood, supra, 488 U.S. at p. 58.)
        Thus, there is a distinction between Trombetta’s “exculpatory value that was
apparent” criteria and the standard set forth in Youngblood for “potentially useful”
evidence. If the higher standard of apparent exculpatory value is met, the motion is
granted in the defendant’s favor. But if the best that can be said of the evidence is that it
was “potentially useful,” the defendant must also establish bad faith on the part of the
police or prosecution. (See Youngblood, supra, 488 U.S. at p. 58; Trombetta, supra, 467
U.S. at pp. 488–489; People v. Alvarez (2014) 229 Cal.App.4th 761, 773.)
        “On review, 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” on a Trombetta/Youngblood claim. (People v. Roybal (1998) 19 Cal.4th 481,
510.)
        B. Pretrial Motion
        Defendant filed a motion in limine pursuant to Trombetta and Youngblood, and
argued the People’s failure to collect or preserve any samples from the two pools of
blood resulted in the intentional, bad faith loss and destruction of material evidence in
violation of his due process rights. Defendant argued the evidence would have been
exculpatory and shown that his blood was on the living room floor, which would have
supported his trial theory that Fulmer attacked him in the living room with the knife.
Defendant asked the court to fashion an appropriate sanction.



                                             18.
       At a pretrial hearing, however, defense counsel equivocated about the reason for
his Trombetta/Youngblood motion.

             “[DEFENSE COUNSEL]: … I have not received any additional
       information, and it appears that the People do not intend to introduce any
       information regarding the blood.…

              “THE COURT:          Other than in the photographs?

              “[DEFENSE COUNSEL]: Other than in the photographs. And
       because I didn’t have anything I prefer to file it and even if there is – it’s
       not relevant because we don’t have – I cannot test the blood at this point. I
       cannot have anything done to verify who is who, and that’s why I’m
       submitting this motion. And we have [a] report that testings were not done
       regarding the blood, and that’s why I didn’t know whether there is
       something else that is coming up or is not coming up, but at this point it
       appears that nothing is coming up unless you intend some new test, DNA,
       or anything that that.”
       The prosecutor was not sure if the blood had been preserved, and defense counsel
said he did not know.

               “[DEFENSE COUNSEL]: So, Judge, obviously the motion may be
       without merits. I just filed it because I didn’t know what was coming up.”
       (Italics added.)
       The court and the parties reviewed the reports and clarified the knife had been
preserved, tested for fingerprints, and the tests were negative, but the blood had not been
collected, preserved, or tested. Defense counsel stated:

               “[DEFENSE COUNSEL]: Judge, I’m ready to withdraw the motion.
       If nothing that I don’t know regarding the blood is coming, I don’t have to
       file the motion because I don’t know even that what is –

              “THE COURT:          Yeah. I don't think it’s going to apply, but –

              “[DEFENSE COUNSEL]: No, it’s not applying at all. I mean, it’s
       not relevant. It doesn’t apply.” (Italics added.)
       After further discussion, however, defense counsel clarified his
Trombetta/Youngblood motion:



                                            19.
              “[DEFENSE COUNSEL]: What it is, Judge, is that to advise the
      Court is we don’t know which blood is which, because the defendant the
      fact also his blood was in the room, too, all over, so that’s why I don’t
      know, but this indicated that there is no blood samples to test, so obviously
      there is … nothing coming up and we will go with this.”
      The court replied:

      “[I]t doesn’t sound like there’s a Trombetta issue and it sounds like
      whatever reports relate to the I. Bureau work have been exchanged, so
      whatever comes out, comes out. The People are subject to direct and
      cross-examination.”
      C. Posttrial Motions
      As set forth in the factual statement, Officer Masse was extensively questioned
about the nature and location of the blood in the apartment, and why he directed the
crime scene technician not to take any samples. The prosecution introduced
photographic evidence of the two separate pools of blood in the living and dining rooms.
      After defendant was convicted in the guilt phase, the court convened the jury trial
on the sanity phase. Just before the sanity phase began, defendant personally addressed
the court outside the jury’s presence. Defendant complained the court never addressed
his Trombetta motion. Defense counsel interrupted defendant and advised the court:

      “[I]t is my recollection that I have addressed way back during the guilty
      trial. I explained to [defendant] it’s not the right time to address motions in
      limine when the jury found him guilty. [Defendant] indicates that I have
      not addressed a motion that I filed, motion in limine regarding of not
      collecting the blood and not collecting a Trombetta motion at that time
      when we had, and he’s been calling this a motion during the entire trial.
      And I’m saying it in the record, I don’t have the specific recollections what
      was the ruling of the Court way back at the preliminary hearing [sic]. I
      know that now in the sanity phase, obviously, we cannot address any
      motions. [¶] According to [defendant], the Court reserved the right of
      ruling to that motion, according to him, and his recollection; right?”
      Defendant said his attorney should know what happened. Defense counsel said he
did not specifically recall whether the court ruled on the Trombetta motion. The court
replied that it did. Defendant again addressed the court and complained it did not rule on


                                            20.
the Trombetta motion. Defense counsel clarified the Trombetta motion was based on the
prosecution’s failure to collect the blood at the scene.
       The court again said it had ruled on the motion, and it had not precluded the
parties from addressing the failure to collect and preserve the blood evidence. The court
further noted defense counsel extensively addressed the issue during cross-examination
of the witnesses, raised it in closing argument, and the issue was presented to the jury.
Defendant complained there was no blood for the jury to consider. The court again said
it denied the motion prior to trial. Defendant said his defense attorney did not talk about
it. The court advised defendant not to be disruptive and moved on to other evidentiary
issues for the sanity phase.
       D. Analysis
       Defendant argues his due process rights were violated under Trombetta and
Youngblood because of Officer Masse’s failure to collect and preserve the blood found in
the apartment. Defendant asserts Masse improperly made his decision based on Fulmer’s
statement at the scene, and assumed Fulmer’s version of events was true and that her
blood was on the living room floor. “Since the officers believed Fulmer and made their
assumptions accordingly, they reached an expressed decision to not preserve any blood
samples, including those on the towel and shirt. This precluded [defendant] from proving
both pools of blood on the floor, or the bloody clothes, either were his alone or were a
combination of his and Fulmer’s which would have supported his claim that he did, in
fact, act in self-defense.”17



       17  We note that while defendant filed a Trombetta/Youngblood motion in limine,
defense counsel appeared to initially withdraw the motion based on his realization the
prosecution had fully complied with discovery and there were no undisclosed blood-
evidence reports. As the pretrial arguments continued, however, defense counsel
clarified that the blood evidence should have been collected and preserved by the
investigating officers. Defendant has thus preserved review of this issue.


                                             21.
       Defendant’s due process rights were not violated by the failure to collect and
preserve the blood samples found in the apartment. The blood evidence did not “possess
an exculpatory value that was apparent before [it] was destroyed.” (Trombetta, supra,
467 U.S. at p. 489.) At trial, defendant testified that Fulmer initiated the assault, and that
she stabbed him with a knife while he was sitting on the living room couch. However,
defendant never accused Fulmer of stabbing him until he testified at trial. At the time of
the investigation, Fulmer reported that defendant assaulted her in the living room, he beat
her so violently that she lost consciousness three times, and she was bleeding from her
forehead. Fulmer said she slipped in the blood when she tried to get up from the living
room floor. Fulmer also said that when she ran out of the apartment, defendant was
sitting on the dining room floor and holding a knife, but he had not stabbed himself.
       When Officer Masse initially entered the apartment, he found defendant lying on
the dining room floor in a pool of blood. His left wrist was cut and bleeding, and the
knife was nearby. Masse found the second pool of blood in the living room. It had been
slightly smeared, consistent with Fulmer’s description of how she got up from the floor,
but it was separate and apart from the blood in the dining room. There were no trails or
drops to connect the two pools of blood, or connect the living room blood to the knife
found in the dining room.
       Defendant was not capable of speaking to the officers while he was still at the
scene. At the hospital, however, defendant told the medical staff that he cut his left wrist
with a steak knife while he was sitting down, he felt dizzy, and he laid down. Officer
Masse interviewed him at the hospital and asked about the cut on his wrist. Defendant
did not answer the question. Instead, he accused Fulmer of using drugs and cheating on
him. Defendant also said they argued, he was angry, he “snapped,” and his next
recollection was waking up on the floor with the cut on his wrist. Defendant said he
might have punched Fulmer, but he could not remember and he was not sure. Defendant
never said Fulmer cut him with the knife.

                                             22.
         Based on the facts presented to Officer Masse that night, the blood evidence did
not “possess an exculpatory value that was apparent before [it] was destroyed ….”
(Trombetta, supra,467 U.S. at p. 489.) It was reasonable to conclude that defendant was
lying in a pool of blood on the dining room floor which resulted from cutting his own
wrist given the nature of the wound, the nearby knife, and his statements to Masse and
the medical staff. It was also reasonable to conclude the blood in the living room resulted
from defendant’s assault upon Fulmer because she had not been stabbed with a knife, she
had blunt force injuries, and there was no blood trail which connected the two scenes.
         At most, the blood evidence appeared “potentially useful” that night, and it “could
have been subjected to tests” that might have helped the defense. (Youngblood, supra,
488 U.S. at pp. 57, 58.) However, there is no evidence of bad faith in this case. It cannot
be said that Officer Masse knew about the purported exculpatory value of the blood
evidence when he directed the crime scene technician not to collect and preserve samples.
(Id. at pp. 56–57, fn. *; People v. DePriest, supra, 42 Cal.4th at p. 42.) Defendant’s
vague statements at the hospital sought to justify the incident. He admitted he had
slashed his own wrist, that he never said anything which undermined Fulmer’s account of
the assault, and that he never accused Fulmer of assaulting him until his belated claim at
trial.
         Defendant argues that it was unreasonable for Officer Masse to rely upon Fulmer’s
account of the assault when he decided not to collect the blood samples. Defendant
asserts the scene in the living room was inconsistent with Fulmer’s description of a
violent struggle in which she fought for her life, because the living room was not
otherwise disrupted aside from the blood and some movement of one table. However,
Fulmer described a scenario where defendant, who was substantially larger than she,
assaulted her on the couch, dragged her to the living room floor, and repeatedly slammed
her head on the floor. Fulmer’s struggle to push defendant off of her did not necessarily
mean that the entire room would have been disrupted in the process.

                                             23.
       Defendant also complains his due process rights were violated because the police
failed to preserve the towels which Fulmer used to stop the bleeding from her head
wound, since the blood on those two towels might have been exculpatory. As with the
primary blood evidence, however, there was no apparent exculpatory value to these two
towels, they might have been potentially useful, and there is no evidence of bad faith.
       While the court denied defendant’s Trombetta/Youngblood motion, it did not
prohibit the defense from raising this issue at trial. Defense counsel extensively cross-
examined Officer Masse and the crime scene technician about their failure to collect and
preserve the blood samples, and obtained their concessions that they were not absolutely
certain about the sources for the two separate pool of blood. In closing argument,
defense counsel addressed Masse’s failure to preserve the blood found in the apartment,
and argued the prosecution only presented “allegations” about blood, it failed to
introduce any real evidence about who the blood belonged to, and the prosecution had
failed to prove defendant’s guilt beyond a reasonable doubt.
       We thus conclude the court properly denied defendant’s Trombetta/Youngblood
motion. The alleged exculpatory value of the blood evidence was not apparent that night.
At most, the blood might have been “potentially useful,” and there is no evidence of bad
faith in Officer Masse’s decision not to collect and preserve the blood.
II.    The Prosecutor’s Closing Argment About Fulmer's Criminal Record
       Defendant raises an issue of prosecutorial misconduct based on the prosecutor’s
closing argument about Fulmer’s lack of a criminal record. As we will explain, Fulmer
had prior misdemeanor convictions, and the court held they were too remote for
impeachment purposes. In closing argument, the prosecutor criticized defendant’s trial
claim that Fulmer used crack; the prosecutor asked the jury to look at her record because
she did not have a prior drug conviction. Defendant objected and the court overruled it.




                                            24.
       On appeal, defendant argues the prosecutor’s argument about Fulmer’s credibility
was false and misleading because Fulmer had a criminal record, which the court
excluded.
       A. Prosecutorial Misconduct
       “A prosecutor’s misconduct violates the Fourteenth Amendment to the United
States Constitution when it ‘infects the trial with such unfairness as to make the
conviction a denial of due process.’ [Citations.] In other words, the misconduct must be
‘of sufficient significance to result in the denial of the defendant’s right to a fair trial.’
[Citation.] A prosecutor’s misconduct that does not render a trial fundamentally unfair
nevertheless violates California law if it involves ‘the use of deceptive or reprehensible
methods to attempt to persuade either the court or the jury.’ [Citations.]” (People v. Cole
(2004) 33 Cal.4th 1158, 1202.)
       “When the issue ‘focuses on comments made by the prosecutor before the jury, the
question is whether there is a reasonable likelihood that the jury construed or applied any
of the complained-of remarks in an objectionable fashion.’ [Citations.] Moreover,
prosecutors ‘have wide latitude to discuss and draw inferences from the evidence at trial,’
and whether ‘the inferences the prosecutor draws are reasonable is for the jury to decide.’
[Citation.]” (People v. Cole, supra, 33 Cal.4th at p. 1203.)
       B. Motions in Limine
       Defendant filed several pretrial motions in limine, including a motion to prohibit
the prosecutor “from making improper and unconstitutional [closing] argument to the
jury,” including any “[s]tatement, comment, remark or insinuation vouching for the
credibility or integrity of prosecution witnesses.”
       During the lengthy pretrial hearings, the court reviewed defendant’s motion and
said: “I don’t think it needs a lot of discussion.” The court asked the prosecutor whether
he understood his obligations, and he said that he did. Defense counsel stated:



                                               25.
      “[Y]our Honor, just for the record I had no doubt at all about [the
      prosecutor]. I’m going just with the books when I do these motions. … I
      apologize. [S]o I am going with the standard proceedings.”
The court acknowledged that defense counsel was just making a record.
      C. Fulmer’s Trial Testimony and the CLETS Report
      Fulmer testified for the prosecution. On cross-examination, defense counsel asked
whether she tried to kill defendant, and she said no. Counsel asked if she had any
criminal record. Fulmer replied: “Not that I know of,” and then added, “Well, not
recently, no.” Defense counsel asked what she meant, and the court called for an
unreported bench conference. When the court returned to the record, it instructed the jury
that Fulmer’s responses were stricken, and it was not to consider them for any purpose.
      On redirect examination, the prosecutor asked for another bench conference,
which was not reported. When the court returned to the record, the prosecutor said that in
light of defense counsel’s questions, he moved to introduce exhibit No. 32, Fulmer’s
certified CLETS “rap sheet” which showed “no arrests, no convictions in her history.”
Defense counsel did not object, and the court admitted it into evidence. The prosecutor
conducted his redirect examination but did not ask Fulmer about her lack of a record.
      D. Discovery of Fulmer’s Prior Misdemeanor Conviction
      During the next recess, the court stated the defense investigator had produced
certified records from Fresno County Municipal Court, which showed Fulmer had a
misdemeanor conviction for petty theft (§ 488) in 1989. There had been an outstanding
arrest warrant, and she failed to appear several times. She was ultimately sentenced in
1992 or 1993 and received a two-year term on informal probation. The prosecutor agreed
the records were authentic.
      The court decided the prior misdemeanor conviction was too remote to be used to
impeach Fulmer’s credibility because it had occurred 20 years earlier, and she did not
have any subsequent record.



                                           26.
       “[T]he questions [defense counsel] presented to the witness I struck and
       instructed the jury not to consider. I’ve admitted the certified CLETS of
       the District Attorney’s Office presented in Exhibit 32. You know, the only
       other thing I would say is that this is now the second time in recent history
       in trials that I’ve conducted here … where, quite frankly, the CLETS
       information isn’t necessarily complete or accurate and, in fact, we’ve
       already had an instance of it in this case. …But, nevertheless, this issue as
       far as I’m concerned is resolved. It would have been too remote in time to
       use as an impeachable prior … and I’m not going to change the record or
       the complexion of the case for the jury at this time….”
The court noted it had similarly excluded defendant’s prior misdemeanor conviction for
criminal threats from 1997 because it was too remote.
       Defense counsel asked:

       “Just not to mislead the jury, what will be court indication about the
       CLETS information, People’s exhibit with the indicat[ion] that she’s never
       had any record? And, obviously, and if counsel continues arguing that
       she’s never had any record, what will be the Court position .…”
       The prosecutor said: “I will not argue that. I can tell you that.” The court replied:
“It opens the door, then we’ll have another issue.” The prosecutor added: “And I can
assure the Court I would not argue that she does not have a record based on what we just
had established through a Defense Exhibit.”
       E. Further Discovery of Fulmer’s Record
       After the defense rested and prior to rebuttal, the prosecutor advised the court that
he conducted further research and obtained a “STAR” report on Fulmer’s prior records.
It showed that Fulmer had been cited for violating Vehicle Code section 14601 in 1990
and 1992 (driving on a suspended or revoked license), and the charges were apparently
dismissed for insufficient evidence. It also showed “a filed DUI” in 1991 but “nothing”
came of it.18


       18
        The prosecutor also advised the court that the STAR records revealed
Espinoza’s prior record. The parties subsequently stipulated to the jury that Espinoza had
a misdemeanor conviction for grand theft in 2000.


                                            27.
       The court stated the new records did not change its ruling, and Fulmer could not
be impeached.19
       Defense counsel returned to the issue of Fulmer’s prior misdemeanor theft
conviction in 1992, and its omission from the CLETS report, which had been introduced
into evidence. Defense counsel complained “the presentation by the People is not
complete, again, because they don’t include the ‘92 record from the [section] 488 that we
have.” The court replied it had already ruled on the issue.
       F. Closing Argument
       The prosecutor did not address Fulmer’s record in his initial closing argument. In
defense counsel’s closing argument, he attacked Fulmer’s credibility and argued she gave
inconsistent statements about the incident, and defendant’s testimony was more
consistent with the evidence.
       In rebuttal argument, the prosecutor addressed asked the jury to review the
instruction regarding the factors to evaluate the credibility of the witnesses:

       “Was the witness’ testimony influenced by a factor, such as bias or
       prejudice, a personal relationship with someone involved in the case or a
       personal interest in how this case is decided? You know, I think it’s
       interesting. The defendant during cross mentioned that he’s a drug addict
       and he mentioned that’s why he didn’t really care about [his prior
       conviction] is because he had drugs in his pocket and he was going to get
       popped for that anyway. And he made sure when Officer Masse questioned
       him at the hospital and then when he was on the stand all these shots at his
       wife, crack addict, crack.[21] Never once did she try to throw shots at him.

       19 On appeal, defendant does not challenge the court’s decision to prohibit
impeachment of Fulmer with her prior misdemeanor conviction or the Vehicle Code
charges. While petty theft is a crime of moral turpitude, the court did not abuse its
discretion when it decided to exclude evidence of Fulmer’s 1989 misdemeanor
conviction as too remote, particularly since she did not suffer any subsequent convictions.
(Cf. People v. Mendoza (2000) 78 Cal.App.4th 918, 925–926; People v. Green (1995) 34
Cal.App.4th 165, 182–183.)
       [21]
          At trial, defendant testified his prior domestic altercations with Fulmer
occurred when she wanted to smoke “weed” and “crack,” and she cheated on him with

                                             28.
       She didn’t try to show anything else in there. She just answered the
       questions, and you can look at her criminal history. You won’t even see a
       drug arrest, and I’ll develop this further .…” (Italics added.)
       Defense counsel objected to the prosecutor “looking to her criminal history
pursuant to the prior Court’s indication.” The court overruled the objection and the
prosecutor moved to another topic.
       Later in his rebuttal argument, the prosecutor again addressed defendant’s attacks
on Fulmer’s credibility:

              “[Defendant] starts with two things trying to just, you know, make
       her look not credible. She’s, essentially, a whore and she’s a crack addict
       and a druggie. That’s what he told the first officer….”
       Defense counsel did not object. The prosecutor argued that defendant tried to
“trash” Fulmer’s credibility with his baseless allegations about child molestation, which
he didn’t report to child protective services until three years after he was arrested in this
case, and which were deemed unfounded. “He already trashed her physically on
September 1st, 2009, and now he wants to trash her reputation and just make her look
like someone she isn’t .…” (Italics added.) Defense counsel did not object.
       G. Analysis
       Defendant asserts the prosecutor committed misconduct by introducing the CLETs
report which failed to list Fulmer’s petty theft conviction, attesting that he would not
argue that she lacked a criminal record, and then arguing in rebuttal that Fulmer was
credible because she did not have a criminal record.
       We first note there is no evidence the prosecutor intentionally or even negligently
withheld any information from the court or the defense about Fulmer’s criminal record.
Both the court and the prosecutor expressed their frustration the CLETs report was


various unknown men. Officer Masse testified that when he interviewed defendant at the
hospital, defendant said, among other things, that Fulmer smoked crack, and he could not
sleep because she would leave the apartment and cheat on him.



                                             29.
incomplete. Indeed, the court acknowledged that it had recently been faced with
incomplete and inaccurate CLETs reports in other cases. After the defense investigator
produced court records about Fulmer’s petty theft conviction, the prosecutor continued to
investigate the matter and obtained the STAR report, which disclosed Fulmer’s dismissed
cases for driving without a license and the DUI, and Espinoza’s prior conviction. The
court found the prosecutor’s further investigation demonstrated “the responsibility of a
diligent prosecutor to follow up” and to “make sure that every representation he’s made
to the Court on behalf of the People is correct and accurate.” Defense counsel did not
dispute the court’s finding or allege the prosecutor engaged in any misconduct as to the
production of Fulmer’s criminal history.
       We also note that while defense counsel objected to one portion of the
prosecutor’s rebuttal argument, he did not raise a specific prosecutorial misconduct
objection or request an admonition, and he did not object to the prosecutor’s subsequent
reference to Fulmer’s credibility. “To preserve for appeal a claim of prosecutorial
misconduct, the defense must make a timely objection at trial and request an admonition;
otherwise, the point is reviewable only if an admonition would not have cured the harm
caused by the misconduct. [Citation.]” (People v. Price (1991) 1 Cal.4th 324, 447;
People v. Silva (2001) 25 Cal.4th 345, 373.) The defendant will be excused from the
necessity of either a timely objection and/or a request for admonition if either would be
futile. (People v. Hill (1998) 17 Cal.4th 800, 820.) There is nothing in the record to
reflect that it would have been futile for defense counsel to request an admonition after
the first objection, or to lodge further objections to subsequent rebuttal argument.
       In any event, it is important to note the context in which the prosecutor addressed
Fulmer’s record. Defendant testified that Fulmer assaulted him on the couch with the
knife and slit his wrist. Defendant also testified that Fulmer used crack, she cheated on
him with various unknown men, she previously put something in his food to knock him
out, and she and various unknown men were somehow involved in molesting his

                                            30.
grandchild. In his closing argument, defense counsel argued Fulmer’s account of the
assault was not credible, and defendant’s testimony was more consistent with the
evidence.
       In this light, the prosecutor used his rebuttal argument to undermine defendant’s
trial accusations against Fulmer, particularly defendant’s claim that she used crack:
“[Y]ou can look at her criminal history. You won’t even see a drug arrest, and I’ll
develop this further .…” (Italics added.) Defense counsel immediately objected, and the
prosecutor moved on to another topic. Later in rebuttal, the prosecutor again attacked
defendant’s claim that Fulmer was “a whore” and “a crack addict and a druggie,” and
accused defendant of “trashing” her reputation. Defense counsel did not object to the
latter statements.
       The prosecutor did not misstate the record when he said that Fulmer’s record did
not show “even” a drug arrest. He never said she did not have any criminal record, and
his rebuttal argument did not constitute prejudicial misconduct. Fulmer’s record
consisted of Vehicle Code violations which were dismissed, a misdemeanor petty theft
conviction in 1989 which resulted in informal probation, and no other citations, arrests, or
convictions. The prosecutor did not misstate or mislead the jury on this point – Fulmer’s
entire record had been obtained, and she did not have any drug related arrests or
convictions. In addition, the admission of the CLETs report was not prejudicial, even
though it failed to include the misdemeanor petty theft conviction, since the court found it
was too remote to be used for impeachment and excluded it from evidence.
III.   Denial of Defendant’s Motion for a New Sanity Trial
       As mentioned above, defendant pleaded not guilty, and not guilty by reason of
insanity. After his conviction on the substantive offenses, the same jury heard evidence
in the sanity phase and found he was sane when he committed the offenses.
       As to the sanity phase, defendant contends the court abused its discretion when it
failed to investigate allegations that Juror No. 12 was asleep during his sanity trial, and

                                             31.
the court should have granted his motion for a new sanity trial because of these
allegations. As the record will show, the court carefully monitored the jurors’
responsiveness and attention levels during the lengthy proceedings, and it did not abuse
its discretion in this matter.
       A. Juror Misconduct and New Trial Motions
       Section 1089 authorizes the trial court to discharge a juror at any time before or
after the final submission of the case to the jury if, upon good cause, the juror is “found to
be unable to perform his or her duty.” Such good cause may exist if a juror is sleeping or
inattentive. (Hasson v. Ford Motor Co. (1982) 32 Cal.3d 388, 411; People v. Bradford
(1997) 15 Cal.4th 1229, 1349 (Bradford); People v. Bonilla (2007) 41 Cal.4th 313, 350
(Bonilla); People v. Johnson (1993) 6 Cal.4th 1, 21, overruled on other grounds by
People v. Rogers (2006) 39 Cal.4th 826, 878–879.)
       Once the court is placed on notice that good cause to discharge a juror may exist,
“it is the court’s duty ‘to make whatever inquiry is reasonably necessary’ to determine
whether the juror should be discharged. [Citation.]” (People v. Espinoza (1992) 3
Cal.4th 806, 821.) “A juror’s inability to perform … ‘must appear in the record as a
“demonstrable reality” and bias may not be presumed.’ [Citation.]” (People v. Beeler
(1995) 9 Cal.4th 953, 975.) “A juror must not be discharged for sleeping unless there is
convincing proof the juror actually slept during trial. [Citations.]” (People v. Bowers
(2001) 87 Cal.App.4th 722, 731.)
       Both the scope of the court’s inquiry and the ultimate decision whether to retain or
discharge a juror are committed to the sound discretion of the trial court. (Bonilla, supra,
41 Cal.4th at p. 350.) If any substantial evidence exists to support the trial court’s
exercise of its discretion under section 1089, the court’s action will be upheld on appeal.
(Bradford, supra, 15 Cal.4th at p. 1351.)
       The court has the discretion whether to conduct an evidentiary hearing to resolve
factual disputes raised by a claim of juror misconduct. (People v. Avila (2006) 38 Cal.4th

                                             32.
491, 604.) “[T]he mere suggestion of juror ‘inattention’ does not require a formal
hearing disrupting the trial of a case. [Citation.]” (People v. Espinoza, supra, 3 Cal.4th
at p. 821.) A trial court’s “self-directed inquiry, short of a formal hearing,” may be
adequate under the state and federal Constitutions where the court is alert to the danger of
juror inattention, closely observes the jurors, and makes specific observations about their
demeanors. (People v. DeSantis (1992) 2 Cal.4th 1198, 1234.)
       When a defendant moves for a new trial based on jury misconduct, the trial court
undertakes a three-part inquiry. “First, the court must determine whether the evidence
presented for its consideration is admissible.... [¶] Once the court finds the evidence is
admissible, it must then consider whether the facts establish misconduct.... [¶] Finally, if
misconduct is found to have occurred, the court must determine whether the misconduct
was prejudicial. [Citations.]” (People v. Duran (1996) 50 Cal.App.4th 103, 112–113.)
“ ‘As a general rule, juror misconduct “raises a presumption of prejudice that may be
rebutted by proof that no prejudice actually resulted.” [Citations.]’ [Citation.] In
determining whether misconduct occurred, ‘[w]e accept the trial court’s credibility
determinations and findings on questions of historical fact if supported by substantial
evidence. [Citations.] Whether prejudice arose from juror misconduct, however, is a
mixed question of law and fact subject to an appellate court’s independent determination.
[Citations.]’ [Citation.]” (People v. Majors (1998) 18 Cal.4th 385, 417.)
       B. The Sanity Phase
       On October 23, 2012, defendant’s jury trial began in the guilt phase on the
substantive offenses. On November 5, 2012, defendant was convicted as charged, and
the great bodily injury enhancements were found true.
       On November 7, 2012, the court convened the sanity phase with the same jury.
The defense presented expert testimony from Dr. Howard Terrell, a psychiatrist, and Dr.
Laura Geiger, a psychologist, who testified defendant was not legally sane when he
committed the offenses.

                                            33.
       After Dr. Geiger’s defense testimony, defendant refused to appear in court for the
remainder of the sanity phase trial.
       The prosecution’s experts were Dr. Philip Seymour, a psychologist, and Dr.
Thomas Callahan, a psychiatrist, who testified to the opposite conclusion, that defendant
was legally sane when he attacked Fulmer. All four experts testified in great detail about
defendant’s lengthy mental health history and were subject to extensive cross-
examination about their conclusions.
       C. The Court’s Discussion About the Jurors
       During the sanity phase, the court repeatedly expressed its concern about the
lengthy trial’s potential impact on the jurors’ financial situations and their attention
spans. On the second day of the sanity phase, the court noted that Juror No. 8 worked in
the evenings, he had been late the previous day, and he “was sitting there with his eyes
closed a good portion of the time yesterday.” The prosecutor said he noticed the same
thing. The court said that other jurors were doing that too and encouraged the parties to
stay on schedule.
       Defense counsel said he wanted the jury to pay attention, but he would be open to
a mistrial on the sanity phase. The court admonished defense counsel for causing further
delays with untimely motions. Counsel replied he was doing his best to obtain the
necessary medical records for the sanity phase. The court said that the records that
defense counsel had just produced were inadmissible and directed the parties to press on.
       Later in the sanity phase, the court said the jurors were sitting very patiently, but
they were becoming alienated from the process and it was taking too long.
       D. Comments About Whether the Jurors were Sleeping
       On November 15, 2012, the jury retired to deliberate in the sanity phase. While
the jury was outside the courtroom, defense counsel told the court that he had received
information from Curtis McAfee, a paralegal student who had been sitting in the
courtroom and observing the trial. McAfee told counsel that one of the jurors was asleep

                                             34.
for a half-hour the previous day. Defense counsel said he had been watching the juror,
but he had not seen anyone sleeping. The prosecutor said McAfee also told him that a
juror was sleeping and had pointed to Juror No. 12’s seat.
         The court said it had been monitoring the entire jury and had been concerned
about Juror No. 8, who had been working in the evenings. The court noticed Juror
No. 8’s eyes were closed but kept watching and determined it was a “listening
technique,” and Juror No. 8 was otherwise moving around in the chair. The court had
seen other jurors periodically close their eyes and rest for short periods of time. The
court had never seen Juror No. 12 fall asleep or “go into behavioral modes that might
think [sic] he was sleeping.” The court said it never saw anything that would have
required stopping the proceedings.
         The prosecutor agreed with the court’s observations about Juror No. 8, and said he
watched Juror No. 8 and realized the juror was engaged and listening even when the
juror’s eyes were closed. The prosecutor had not seen Juror No. 12’s eyes shut during
trial.
         The courtroom deputy provided the most detail about Juror No. 12, and said that
McAfee brought the matter to the deputy’s attention at the time.

         “[McAfee] waved at me in the middle of [sic] and I looked at him and he
         put his hands together like someone was sleeping and then pointed to the
         jury box. When I looked over I saw Juror Number 12 with his eyes closed.
         He – I don’t know if he was asleep or not, but Juror 11 looked at me and I
         told her to shake Juror 12, and when she shook him he didn’t appear to
         have been startled like he was awoken [sic]. He just simply opened his
         eyes.” (Italics added.)
         The court decided not to take further action and it did not question Juror No. 12.
         Later on November 15, 2012, the jury found defendant was sane when he
committed the offenses.




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       E. Motion for New Trial
       Defendant filed a motion for a new sanity trial, primarily based on the claim that
the jury failed to properly deliberate because the verdict was returned in a short time.23
Defendant also argued a new trial should be granted because Juror No. 12 was asleep and
the court failed to investigate the matter.
       Defendant’s motion was supported by an unsworn declaration from the defense
investigator, who spoke to McAfee after the trial. According to the investigator’s
declaration, McAfee said he saw a juror who was sound asleep for about 30 minutes.
McAfee said he notified the bailiff, who spoke to the court reporter. McAfee also told
the defense attorney what he saw.24
       F. Hearing on New Trial Motion
       At the hearing on the new trial motion, the parties primarily addressed the length
of deliberations and whether the jurors had performed their sworn duties or rushed to a
verdict in the sanity phase.
       The court also addressed defendant’s claim that Juror No. 12 was asleep for 30
minutes during the sanity phase. The court accepted the declaration from the defense
investigator about his unsuccessful efforts to subpoena and obtain the presence of
McAfee, who purportedly saw that Juror No. 12 was asleep.
       In arguing the motion, both the prosecutor and defense counsel stated they met
with members of the jury after the sanity verdicts were returned and the jurors were
excused. Defense counsel could not recall if Juror No. 12 was present for this
conversation. The prosecutor said Juror No. 12 was present and participated in a

       23 Defendant’s motion asserted the jury deliberated for four minutes. According
to the minute order, the jury deliberated for 11 minutes.
       24 McAfee, who allegedly saw Juror No. 12 was asleep, did not appear at the
hearing on the new trial motion. The defense submitted an unsworn memo from the
defense investigator about his unsuccessful efforts to subpoena McAfee to testify at the
hearing on the new trial motion.


                                              36.
collective conversation and group dialogue with both attorneys and the other jurors about
the case.
       The court asked the parties whether any of the jurors said anything which would
question the integrity of the verdict. The prosecutor said no. Defense counsel said he did
not have that impression.
       The court met with the jurors before they spoke with the two attorneys. The court
thanked the jurors for their service, did not address the specific facts of the case, and
offered to answer questions about the trial process. “And in the course of that I’m
looking for things that might indicate that there is a reason to doubt the integrity of the
verdict.” The judge had experienced situations following other trials where jurors
disclosed they were not comfortable with the verdict or something similar. “No one
disclosed to me any level of discomfort with the verdict.”
       The court stated that if the jurors “who remained behind” had any misgivings
about the verdict after they were discharged, “don’t you think you would have heard it?
Don’t you think somebody would have said something was wrong here? Don’t you think
that some at least inkling of discomfort from some of the jurors or a juror would have
been exposed to you? Why do you think I polled the jury? That’s why I do that. I don’t
trust the fact that a piece of paper can be handed to me signed off by one person and that
necessarily indisputably accounts for what happened in a jury room. That’s why I go
through that process. That’s why I ask each and every one of those jurors, and I ask them
two things. I ask them, is this your verdict and is this the verdict that you reached
unanimously with everybody else?”
       The court also addressed the jurors’ attention levels during the sanity phase.
       “There were times when I brought it up on my own motion. There were
       times when it was brought to my attention by the deputy, I believe, and by
       Madam Clerk, I believe, at one time. There was a time when this person
       who was out in the audience brought it to somebody’s attention and we
       acted on it. I made a record during the trial that I was monitoring the
       attention level of everybody … in that jury and I was concerned about it at

                                             37.
       all times. I specifically focused on people who I thought might be dozing
       off, and I looked to monitor what their actual listening behaviors were.
       There were people who did, in fact, look to be nodding off, but I could see
       that they were in fact doing something with their hands or with their leg
       that they would acknowledge certain voice intonations or certain changes in
       loudness or something like that. I was monitoring the thing through the
       entire process.”
       The court found there was no reason to doubt the integrity of the jury’s verdict,
and no evidence the verdict was misguided or the product of some bias or malfeasance.
       G. Analysis
       Defendant raises two issues. First, defendant contends the court should have
halted the jury’s deliberations during the sanity phase and conducted an investigation into
whether Juror No. 12 had been sleeping during the trial. Second, defendant argues that
since the court failed to question any of the jurors about this issue, it should have granted
his motion for a new sanity trial because it was impossible to determine whether Juror
No. 12 heard the disputed testimony about defendant’s sanity.
       The court did not ignore defense counsel’s information that Juror No. 12 was
allegedly sleeping. Indeed, the court repeatedly stated that it was monitoring the jurors’
attention levels, and encouraged the parties to expeditiously present their cases in order to
avoid a mistrial because of the lengthy proceedings.
       When defense counsel advised the court about McAfee’s information that Juror
No. 12 appeared to have been sleeping, the court immediately responded to counsel’s
concern and began the inquiry by questioning courtroom personnel. While the attorneys
had been concerned about Juror No. 8, they had not noticed whether Juror No. 12 had
been asleep. The court said it had never seen Juror No. 12 fall asleep or “go into
behavioral modes that might think [sic] he was sleeping,” or anything that would have
required stopping the trial.
       The courtroom deputy provided the detailed explanation that Juror No. 12’s eyes
were closed. The deputy did not know if Juror No. 12 was asleep; Juror No. 11 shook


                                             38.
Juror No. 12; and, upon being shaken, Juror No. 12 “didn’t appear to have been startled
like he was awoken [sic]. He just simply opened his eyes.”
       The court did not abuse its discretion by the nature of its inquiry or its decision not
to take further action. Although defendant argues the court should have conducted a
formal inquiry of Juror No. 12 and the other jurors, the trial court monitored the entire
jury during the lengthy trial and it was “in the best position to observe” the jurors’
demeanors and determine if additional inquiries were required. (People v. Beeler, supra,
9 Cal.4th at p. 989, overruled on other grounds in People v. Pearson (2013) 56 Cal.4th
393, 462; People v. Schmeck (2005) 37 Cal.4th 240, 298.) The court’s “self-directed
inquiry” resulted in the explanation by the courtroom deputy which addressed the
concern raised by McAfee during deliberations. Moreover, the deputy’s explanation
rebutted defendant's later allegations, based on the investigator’s unsworn hearsay
declaration, that McAfee said Juror No. 12 was asleep during the sanity phase.
       Based on the record before the court, it did not abuse its discretion when it
addressed defense counsel’s concerns about Juror No. 12 or when it denied defendant’s
motion for a new sanity trial.
                                      DISPOSITION

       The judgment is affirmed.

                                                                 _____________________
                                                                  Poochigian, J.
WE CONCUR


______________________
Levy, Acting P.J.


______________________
Detjen, J.



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