1

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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 

publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication

or ordered published for purposes of rule 8.1115. 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE

THE PEOPLE,

Plaintiff and Respondent,

v.

DESHAUN MALONE,

Defendant and Appellant.

 A140747

 (Solano County

 Super. Ct. No. FCR261283)

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. 
2

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. 
3

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. 
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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 
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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 
6

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. 
7

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 
8

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-ofcourt 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 selfdefense 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.
9

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 
10

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, 
11

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.) 
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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 selfdefense. 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 
13

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, 
14

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 
15

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 
16

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.
17

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 
18

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 
19

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.” 
20

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.) 
21

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 
22

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 crossexamination 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 
23

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. 
24

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 crossexamination, 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 
25

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-ofcourt 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 
26

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.)
27

DISPOSITION

The judgment is affirmed.

NEEDHAM, J.

We concur.

JONES, P.J.

BRUINIERS, J.