People v. Aceves-Cortez

Full title: THE PEOPLE, Plaintiff and Respondent, v. JORGE LUIS ACEVES-CORTEZ…

Court: COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT

Date published: May 1, 2018

No. F071332 (Cal. Ct. App. May. 1, 2018)

Opinion

F071332

05-01-2018

THE PEOPLE, Plaintiff and Respondent, v. JORGE LUIS ACEVES-CORTEZ, Defendant and Appellant.

Matthew A. Siroka, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris and Xavier Becerra, Attorneys General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Michael Canzoneri, Larenda R. Delaini, and A. Kay Lauterbach, Deputy Attorneys General, for Plaintiff and Respondent.

POOCHIGIAN, Acting P.J.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Kern Super. Ct. No. BF151070A)

OPINION

APPEAL from a judgment of the Superior Court of Kern County. Michael E. Dellostritto, Judge. Matthew A. Siroka, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris and Xavier Becerra, Attorneys General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Michael Canzoneri, Larenda R. Delaini, and A. Kay Lauterbach, Deputy Attorneys General, for Plaintiff and Respondent.

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INTRODUCTION

Appellant/defendant Jorge Luis Aceves-Cortez (defendant) was convicted of murdering his wife, Maria, and sentenced to 15 years to life. Defendant had a history of committing prior acts of domestic violence against her, including prior beatings to her head in the year before her death.

It was undisputed that Maria died from subarachnoid hemorrhaging in her brain. Her children, the only witnesses to the incident, testified defendant either slapped or punched her in the face immediately before she collapsed.

Defendant's trial involved a clash of opinions between the prosecution and defense experts about why the brain hemorrhaging occurred - whether the massive bleeding was the result of defendant's infliction of blunt force trauma to her head, or she died as the result of an unrelated and coincidental rupture of a previously undiagnosed brain aneurysm.

As the trial wound to its conclusion, another issue developed based on the apparent inadvertent failure of the coroner's office to disclose the preservation and existence of "stock tissue" from Maria's brain. As we will explain, there was obviously some confusion between the parties during discovery about the significance of terms such as "slides," "histology," and "stock tissue" from the brain. In any event, the prosecution's expert testified in rebuttal, for the first time, that he had preserved "stock tissue" from Maria's brain.

As a result of the belated disclosure of the existence of tissue from Maria's brain, defendant made several motions pursuant to Brady v. Maryland (1963) 373 U.S. 83 (Brady), to dismiss the case, to continue the trial in order to respond to the rebuttal evidence, and/or for a corrective instruction to the jury. Defendant's Brady motions were denied, including his motion to continue.

On appeal, defendant raises several issues about the belated disclosure of the existence of the stock tissue of Maria's brain. Defendant contends the court erroneously denied his motion to dismiss because the prosecution's failure to previously disclose the evidence violated Brady, and the evidence was favorable and material to the defense. Defendant contends the court should have granted his alternative motion to continue in order to respond to the rebuttal evidence.

Defendant further argues the court improperly permitted the prosecution to introduce evidence about the stock tissue and other matters on rebuttal, and the prosecutor committed prejudicial misconduct by failing to disclose the existence of the tissue and other matters.

Defendant also raises other evidentiary and instructional issues, and a general claim that defense counsel was prejudicially ineffective to the extent she failed to make appropriate objections or motions to preserve issues for this appeal.

We find that the court properly denied defendant's motion to dismiss because defendant failed to show the evidence was material within the meaning of Brady.

However, we also find the court abused its discretion when it denied defendant's motion for a continuance in order to respond to the prosecution's rebuttal evidence about the preservation and existence of the brain tissue. As with the materiality issue under Brady, we cannot determine from this record whether the court's denial of defendant's motion to continue was prejudicial.

As a result, we conditionally reverse and remand the matter for further appropriate proceedings on the question of prejudice for defendant to determine whether to pursue examination of the brain tissue and to file a motion for new trial.

We reject defendant's other appellate issues.

FACTS

As of October 2013, defendant and Maria Cortez were married and had been together for four years. They lived in an apartment in Bakersfield with all but one of Maria's children.

Maria's older children from prior relationships were Enrique (18 years old at the time of Maria's death), Ruby, Oscar (15 years old at trial), Fernando (15 years old at trial, Maria M. (12 years old at trial, and Alonzo (eight years old at trial).

Defendant and Maria were the parents of George Jr. (four years old) and Cassandra (three years old). Maria's oldest daughter, Ruby, had her own family and lived in a nearby apartment.

Enrique, Maria's son, testified that he always lived with defendant and Maria during their relationship and got to know defendant very well. He had seen defendant become drunk over 20 times.¹ Ruby testified she was also close with Maria. Enrique and Ruby testified they were not aware of Maria having any previous health problems.

1 Enrique initially testified for the prosecution. He admitted that in 2011, when he was a juvenile, he was with his brother, Oscar, and other friends. Enrique and Oscar waited outside a residence while his friends burglarized a residence, and they ran away from the police.

Maria goes to Ruby's apartment

On Saturday, October 5, 2013, defendant and Maria were home. Early that morning, Ruby picked up Maria and Maria's two younger children. Maria went to Ruby's house to do the laundry, as she frequently did. Enrique stayed home with the rest of Maria's children.

Maria complains of a headache

Ruby testified that Maria did the laundry then helped Ruby paint a bedroom. Sometime before noon, just before they started to paint, Maria pointed to the back of her head, near the bottom, and told Ruby, "[R]ight here, it was hurting." Maria did not give any more details, but said that she was going to make an appointment to see the doctor. Maria did not make any more statements or complaints about her head to Ruby.

Around 3:00 p.m. or 4:00 p.m., Ruby left her apartment and went to work at a restaurant that was about two minutes away. Maria stayed at Ruby's apartment with her own two children and watched Ruby's three young children.

Ruby testified that once she was at work, she called Maria several times to check on her children. Maria sounded normal and said the children were fine. Maria did not make any more complaints about her head or say that she needed to go to the hospital.

Maria was going to stay at Ruby's apartment until the father of Ruby's children returned from his job, but he was running late. Maria decided to return to her own apartment with her two children and Ruby's three children.

Defendant and Maria pick up Enrique

Around 5:30 p.m. or 6:00 p.m., Enrique was still at the family apartment. He helped defendant put more laundry in the car so defendant could take it to Ruby's home. Enrique then left the apartment and went to a friend's house.

Ruby testified that during one of her calls to Maria, she learned that defendant drove to her apartment to finish the laundry. Defendant and Maria then left Ruby's apartment with their two children and Ruby's three children.

Enrique testified he called Maria between 10:00 p.m. and 10:30 p.m. because he needed a ride from the friend's house. Defendant answered Maria's cell phone and said they were on the way to get him.

Enrique testified that when they picked him up, defendant was driving. He was drunk and swerving the car. Maria appeared stressed out. Maria said that she wanted to drive, and they switched. The car overheated near a Jack-In-The-Box restaurant. Maria went into the restaurant to get water for the car. Enrique and defendant stayed in the car with the children. Enrique testified defendant was picking fights with someone in a "random" car parked next to them. Maria returned with water, filled up the car, and drove back to their apartment.

Defendant pushes Maria in the apartment

Enrique testified that when they returned to their home, Maria stayed outside. Defendant looked for her and asked Enrique where she was. Enrique testified defendant was "[b]asically drunk."

Enrique testified that defendant and Maria returned inside the apartment. Defendant tugged on Maria and she pulled back. Defendant pushed Maria into the living room and she tripped on the couch. Enrique thought defendant was going to fight with her since he had pushed her into the apartment and was intoxicated. Enrique testified he grabbed a knife from the kitchen "just in case something ... happened" and put it in his pocket.

Defendant yells at Maria

Maria sat on the couch to watch television with Enrique, Cassandra, George, Alonzo, and Ruby's three young children. Alonzo testified he sat next to Maria "to keep her safe" because defendant was arguing with her.

Enrique testified that defendant argued with Maria and said her family did not love his children as much as Maria's other children. Maria asked defendant why he cared what other people thought. Defendant criticized Maria's family and called her a pejorative term in Spanish.

Enrique testified that when defendant was yelling, Maria told the younger children to go into their bedrooms. Enrique stayed in the living room. Maria remained on the couch and was holding Ruby's youngest child in her arms. Defendant yelled at Maria for about 10 minutes. Maria "mostly" watched television and ignored defendant. She did not yell at him. Enrique testified he kept watching them because he was afraid defendant was going to hit Maria. Defendant stood in front of the couch, bent toward Maria, yelled at her, and got into her face.

Enrique asked Maria why they were arguing. Maria said defendant "was just being dumb." Defendant asked Enrique why he was involved in their business. Enrique replied that it was his mother's business and "if they are going to fight, it's my business too." Defendant said Enrique should be more like his brother who "just minds his own business." Enrique said he and his brother were different. Defendant said that was why he did not respect Enrique. Maria told defendant that Enrique did not need anyone's respect.

Maria asks Ruby for help

Sometime before 11:00 p.m., Ruby again called Maria to check on her own three children. Ruby knew Maria and the children were back at Maria's apartment. Defendant answered the phone and said Maria was in the shower and could not talk because she was too busy. Ruby testified defendant sounded upset; she thought his response was strange because he usually said that Maria would call back.

Ruby called Enrique and asked him to pass his cell phone to Maria. Maria came on the line and asked Ruby to pick her up. Ruby asked why. Maria said they were arguing. Ruby said she was not sure if she could leave work. Maria told Ruby to say it was a family emergency. Maria said she wanted to move out with the children and asked Ruby for money. Maria used a normal tone of voice.

Ruby testified Maria had never before asked for help to leave defendant. Ruby was not worried because she "never knew of any history of [defendant] doing anything in front of me. He never presented himself as dangerous."²

2 While Ruby testified at trial that she was not aware of defendant presenting himself as "dangerous," the prosecution later introduced evidence of prior domestic violence incidents, including one episode where Ruby drove Maria and the children to a friend's house after such an incident.

As they talked on the phone, Ruby heard Maria have "side conversations" with defendant. Maria "was saying, well you smoke marijuana," and Ruby believed they were arguing about her brother.

Ruby told Maria she would try to get off work, and they hung up. Ruby received permission from her supervisor to leave work before 11:00 p.m. She immediately called Enrique, and told him to get the children ready and open the gate to the apartment complex's parking area. Enrique said he would tell Maria.

Maria tells Enrique to get the children ready to leave

Enrique testified Maria was still on the couch, holding Ruby's baby, when she spoke to Ruby on the cell phone. After Maria finished talking to Ruby, Maria became "fed up." Maria told Enrique to tell the children to get ready to leave.

Defendant was present when Maria spoke to Ruby and when she told Enrique to get the children ready to leave. Defendant asked Maria what she was going to do without him and said that she would go out and meet other men. Maria ignored defendant and did not reply to him.

Enrique left the living room to get the children ready to leave. Enrique went into his bedroom to get some clothes, and he could still hear defendant yelling. He did not hear Maria yell or scream.

Enrique's brother, Oscar, was playing videogames in his own bedroom. Enrique told Oscar to get ready to leave. Enrique's sister, Maria M., was in the bedroom hallway, and Enrique told her to help get the younger children ready to leave.

Enrique hears Maria "moan"

Enrique testified that when he spoke to his sister in the hallway, he heard Maria make a sound "like [a] moan, like fainting." Enrique heard "struggling," like "she was trying to get him off her," or she was "struggling for breath." Enrique testified defendant was still yelling, and he called Maria a "f**king bitch" in Spanish.

Defendant slaps Maria

Alonzo testified he was still sitting with Maria on the couch when Enrique went into the bedroom to get the children. Maria told Alonzo to get her purse because they were going to leave. When Alonzo got her purse, defendant hit and kicked him because he was mad.³

3 On the afternoon of October 6, 2013, the following day, an officer met Alonzo at Kern Medical Center. The officer testified the left side of Alonzo's face was swollen, and Alonzo said that it hurt.

Alonzo testified that defendant and Maria were sitting down, but they both stood up and starting hitting each other, with open hands in a slapping motion. Defendant hit Maria. Maria's eyes rolled back, and she fell down and off the couch.

Enrique finds Maria unconscious

Enrique went back into the living room. Maria was still sitting on the couch. Defendant was holding Ruby's baby, and he was leaning over Maria. Defendant's hand was around Maria's neck. Maria's eyes were closed, and she was not making any sounds. Defendant realized Enrique saw him and he got off of Maria.

Enrique grabbed Ruby's baby from defendant and placed the child on the couch.⁴ Enrique then grabbed defendant and threw him to the ground. Enrique checked Maria and realized she was unconscious; she slumped over on the couch and slid to the floor.

4 Defendant was initially charged with count I, murder; and count II, willful infliction of unjustifiable physical pain or mental suffering on Ruby's two-month-old child (Pen.Code, § 273a, subd. (a)), based on Enrique's testimony that defendant was holding the child as he leaned over Ruby. After the prosecution rested, the court granted defendant's motion to dismiss count II.

Enrique testified he never saw Maria's body convulse or shake. Her eyes remained closed the entire time he was with her.⁵

5 When Enrique called 911, he told the dispatcher that Maria was having a seizure.

Defendant told Enrique to leave him alone and said he was trying to wake up Maria. Enrique asked defendant what he did to her. Defendant said he did not do anything. Enrique said he was going to call the police. Defendant told Enrique not to call anyone or he would kick Enrique out of the house.

Enrique testified defendant tried to wake up Maria. He threw water on her face and he was breathing into her mouth. He called her name and told her to wake up. Enrique testified defendant was acting "like someone who doesn't want to get caught."

Enrique testified all the children came into the living room and saw Maria on the floor.

Enrique calls 911

Enrique testified he was already calling 911 when defendant told him not to call anyone. He initially spoke to the operator while he was inside the apartment, then he ran outside so he could open the gate to the parking area.

The transcript and recording of Enrique's call to 911 were introduced into evidence. According to this evidence, Enrique told the dispatcher that a woman was having "a seizure" and "about to die," and she was breathing but not awake. The dispatcher asked if she had more than one seizure. Enrique said no, that "someone socked her and she's having a seizure." Enrique added, "[L]ike someone hit her and she like, uh, just dropped."

Enrique asked for the police and an ambulance. The dispatcher asked if the person who assaulted her was still there. Enrique said that "he's my step-dad" and he was "trying to save her," but she was not getting up. When asked for further details, Enrique said, "[S]he's like knocked out 'cause she ain't getting back up." Enrique said she was still jerking.

Enrique said he was not going back into the apartment because "he's still there" and "I'm gonna probably end up stabbing him...." Enrique repeatedly asked the dispatcher when the police were going to arrive.

As the dispatcher kept asking about the victim's condition, Enrique said, "I was talking to Oscar and I saw [defendant] yelling and she was holding the baby and she was on the floor...."

At trial, Enrique testified that he thought Maria had a seizure because she was unconscious; she never had one before.

Ruby arrives at Maria's apartment

Ruby testified that after her brief call with Enrique, she left her workplace and got to Maria's apartment within two minutes. Enrique was standing outside and talking on his cell phone, but she did not hear what he was saying.

Ruby testified she walked into the apartment and all the children were crying. Maria was lying on the floor. Defendant was next to Maria and holding her head. Oscar had Maria's head on his lap. Defendant was arguing with Enrique and said that it was his fault.

Ruby testified that defendant and Oscar picked up Maria and put her on the couch. Defendant was screaming and yelling. He slapped Maria's face, called her name, and tried to wake her up. The police arrived within five to 10 minutes after Ruby got to the apartment.

THE INITIAL INVESTIGATION

The police arrive

Around 11:34 p.m., Bakersfield Police Senior Officer Paul Bender responded to Maria's apartment with Officers Christopher Messick and Aaron Mundhenke. Enrique opened the driveway gate and directed them to the apartment. The apartment's door was ajar, and Ruby was in the doorway with three young children.

The officers went into the living room and found Maria lying face up on the couch. Oscar was sitting on the couch, and Maria's head was in his lap.

Officer Messick testified defendant was leaning over Maria, calling her name, and shouting in Spanish and English. Officers Messick and Bender testified defendant was using one hand to push down on her chest.

Officer Bender testified that defendant was attempting to revive her by patting her face. Officer Mundhenke testified defendant's hands were close to Maria's face, neck, and jaw, and he was "just trying to shake her and wake her up." He was not squeezing her neck. Officer Messick did not see defendant's hands near Maria's neck.

Officer Bender testified it was a hectic situation with lots of family members and children in the room. Officer Mundhenke escorted the children away from the couch.

Oscar told the officers that Maria was not breathing. Officer Bender determined she was not responsive. Officer Messick used two fingers to check her carotid artery with a minimal amount of pressure. He could not feel a pulse, and she was not breathing.

Officer Bender testified he saw a small amount of blood on Maria's nostrils, but no other visible physical injuries. Officer Messick similarly saw "dried crusted blood in each of her nostrils" and no other visible injuries. Messick testified Maria's face was already wet when the officers arrived.

Officers Bender and Messick moved Maria from the couch to the floor to perform CPR. Messick cradled Maria's head and neck to protect her as they moved her.

As they waited for emergency personnel, Officers Messick and Bender performed CPR. The officers took turns performing chest compressions from her right side. Defendant knelt on the floor next to Maria. The officers instructed defendant how to perform rescue breathing between chest compressions. The officers did not squeeze Maria's neck, and they did not see defendant do so.

The officers were unable to revive Maria. The paramedics arrived four minutes after the officers got there. The paramedics continued to perform CPR, and did not touch or squeeze Maria's neck while they were at the apartment. They transported Maria to the hospital.

The children's statements to the police

As the officers tried to revive Maria, Officer Messick testified one child approached him and "told me what happened." Messick determined the apartment could be a crime scene. He placed defendant in handcuffs and escorted him to the patrol car. The officers separated the children and conducted interviews with each of them.

Alonzo's statement that he saw defendant "sock" Maria

After the paramedics took Maria to the hospital, Officer Messick interviewed Alonzo. Alonzo told Messick that he saw defendant "sock" Maria several times that night. Alonzo pointed to different places "all over his face," including his forehead, to demonstrate where defendant hit Maria's face. Alonzo said Maria "didn't do anything, she didn't cry."

Enrique's statement

Officer Bender interviewed Enrique that night. Enrique showed how defendant had pushed Maria earlier. Enrique said that defendant was intoxicated, that he normally drank "tall cans," and he had consumed a mini bottle of 3.75 ounces of Hennessy that night.

Enrique told the officer that defendant yelled at Maria and complained about her family. Enrique said he went into his bedroom to call his brother; he heard Maria and defendant yelling, and he went back to the living room and saw Maria on the floor. Enrique also said he saw defendant's hand around Maria's throat.

At trial, Enrique testified that he was present when the officers initially arrived and asked defendant what happened. Defendant was standing by the couch and said "that he hit her," and "[h]e went like that. He said I hit her."

Maria dies at the hospital

The paramedics transported Maria to Bakersfield Memorial Hospital. Dr. Edward Nichols testified Maria was in cardiac arrest when she arrived. The paramedics had installed a device in her airway and were performing CPR and resuscitation measures. Maria was pale and cool. Dr. Nichols could not find a pulse. Dr. Nichols administered intravenous medication and continued CPR and other resuscitation measures. She was intubated with a tube into her lungs. Dr. Nichols believed the intravenous lines were inserted in her arm and not her neck. There was no pressure applied to Maria's neck during the CPR procedures.

Dr. Nichols and the staff used extensive efforts to revive Maria. He felt an irregular pulse for a brief time, but it deteriorated and her heart stopped. Dr. Nichols pronounced Maria dead at 2:42 a.m. on October 6, 2013.

Rebecca Fisher, a deputy coroner with the sheriff's department, met Maria's children at the police department and told them that Maria had died. The children were distraught.

EVIDENCE OF PRIOR INCIDENTS OF DOMESTIC VIOLENCE

The prosecution introduced evidence of several prior domestic violence incidents when defendant hit Maria, pursuant to Evidence Code section 1109.

July 2012 incident

Arturo Sanchez, Maria's brother, testified that one evening, towards the end of July in 2012, Maria called and sounded scared. Maria asked Arturo to come to her location because defendant had hit her.

When Arturo reached Maria, she was still scared. He saw a bump on her right temple and there was blood running down her face. Maria did not tell Arturo what had happened.

At a later time, Maria told Arturo she did not call the police that night because she was afraid defendant would get arrested, and it would affect his visa application.

May 2013 incident at the minimart

Gustavo Guerrero did not know defendant and Maria. Around 7:40 p.m. on May 24, 2013, Guerrero and his wife drove by a minimart on South Union in Bakersfield. He saw a fight near the ice machine outside the store. As he got closer, he saw a man and a woman, later identified as defendant and Maria. Guerrero testified defendant was on top of Maria, who was on the ground. Defendant was leaning over her, and beating and punching her. He was raising his arm above his shoulder, and his fist came down to the ground as if "he was hitting the floor punching." There were little children around Maria, and they were crying and scared.

Guerrero drove back to the store, went inside, and saw defendant and Maria. Maria was crying and asking defendant to leave her alone and just leave. Guerrero testified that defendant said, "[C]ome on let's go. Let's stop making this drama, and let's go home, and then he was saying something, I don't know why you went to look for me at my friend's house. He was just drinking...." Guerrero testified that Maria kept saying, "[J]ust leave me alone." Maria stood in front of the children and appeared as if she was trying to protect them.

Fernanda Covarrubias testified she was at the same minimart. She did not know defendant or Maria, but later identified them as two people who were in the store. Maria was crying, "very desperate," and looked "really worried" about what was going on. Covarrubias observed injuries to Maria's left eye. Maria was with four children, who were also crying.

Covarrubias testified that defendant told Maria that they should leave, and he was trying to get her to go outside. Maria said she did not want to leave with him.

Covarrubias asked Maria if she needed help. Maria asked Covarrubias to take her to a domestic violence shelter. Covarrubias agreed. As they drove away from the store, Covarrubias realized defendant was following them in his own vehicle.

Guerrero testified that he was present when Covarrubias offered to help Maria. Defendant appeared to calm down and allowed Maria and the children to leave. Defendant got into an SUV and followed Covarrubias's vehicle as it left the minimart. Guerrero followed them and told his wife to call 911. Guerrero reported what he had seen at the store and the location of the two vehicles.

At 7:40 p.m., Deputy Dizander Guerrero responded to the dispatch and pulled over the vehicles of both Covarrubias and defendant. Deputy Guerrero testified Maria appeared scared. The children were crying and also appeared scared. Maria had a swollen and injured left ear, a bruise on her left forearm, scratches on both arms and her knuckles, and the right side of her face was swollen. He took photographs of the injuries.

Defendant's telephone calls from jail

As a result of the minimart incident, defendant was arrested and taken into custody. The prosecution introduced recordings and transcripts of three calls defendant placed to Maria while he was in jail on May 24 and 25, 2013.

In first call, defendant accused Maria of hitting him. Maria replied: "I didn't hit you hard like you hit me...." Maria told defendant that he should go to Mexico "and there you find someone," and she was going to leave. Defendant said Maria had brought "hell" onto him. Maria said she told the police that "I was the one that hit you first," and he was arrested because he was drinking. Maria said she was tired because defendant did not want to change. Defendant said he would never change. Maria said she wished him the best, they were going to split up, and she was going to move out.

Defendant accused Maria of betraying him. Maria said the people who saw defendant hitting her called the police. Defendant said he wanted to stay here, and asked what else she was going to bring against him "[b]ecause your ear is purple." Maria said, "I told them that I fell...."

In the second call, defendant told Maria that it was her fault he was "here," he never expected it from her, and cursed her. Maria reminded defendant that she told him to leave when they were in the store, but the other people called the police, and "if you had left they wouldn't have found you." Maria said she was covering for him.

In the third call, Maria told defendant to "just tell them that I hit you first" because "[t]hat's what I told them, that I fell on the sidewalk. And I hit myself...."

Defendant cursed her for making him suffer and said she screwed up, and he would not pay for her faults. Maria asked defendant if he knew "that all of your calls sometimes get recorded?" Defendant said he did, and "that's why I'm saying that it's your fault," and she wanted to play the victim by calling the police.

Maria's statements about minimart incident

Rebecca Rodriguez, who worked with Maria, testified that in May 2013, Maria asked to borrow money to bail defendant out of jail. Maria said defendant was arrested for hitting her. Maria said she was afraid of defendant. She was worried that if they deported defendant, he was going to kill her.

Rodriguez testified Maria's left ear was bruised, and she had scratches on her arm, back, and left side. Rodriguez did not have the entire amount that Maria needed. Maria was crying and again said she was really afraid of defendant.

Maria's daughter Ruby testified that Maria asked her for money to bail out defendant. Maria said defendant was in jail because they argued at the swap meet, defendant pushed her, she pushed him back, she slipped and fell, and she scraped her ear. Ruby saw the injury to her ear. Maria also said that there was a car next to them, defendant yelled at the car, and that car followed them and called the police.

Dismissal of charges

The prosecution introduced the transcript of proceedings on July 19, 2013, where defendant appeared in court before Judge Gill. Defendant had been charged with a misdemeanor based on the minimart incident.

According to the transcript, the deputy district attorney stated that after talking to Maria, he would move to dismiss the case for lack of evidence. Judge Gill asked if Maria agreed. Maria said yes. Judge Gill asked if she wanted a criminal protective order, and Maria said no. The court granted the motion and dismissed the case.

Maria's statements to coworker in mid-2013

In the middle of 2013, Maria told Nayeli Lua Vargas, a coworker, about how defendant treated her. Vargas testified that she told Maria "she should leave him and she did mention a few times that she felt that if she left him, he would always tell her he would kill her and she did think he was capable of doing that."

Incident about five months before Maria's death

Adela Sanchez (Adela), Maria's niece, testified that in the middle of 2013, Maria said that at the beginning of her relationship with defendant, "everything was fine. After that, she then told me that [he] was the worst man" that she had ever seen.

Adela and Maria's daughter Ruby testified at trial about an incident that occurred about five months before Maria's death in 2013. Maria called Ruby on a Friday night, and asked for a ride. Maria said she had argued with defendant and wanted to leave. Ruby picked up Maria and the children in an area that was not near Maria's apartment. Once they were in the car, Ruby received multiple calls on her cell phone from defendant. Ruby answered the first call, and defendant sounded intoxicated. Defendant asked Ruby if she knew where Maria was, and to tell her to come back or call him. After that call, defendant repeatedly called Ruby. Maria told Ruby to ignore the calls and asked her to drive to Adela's house.

Adela testified that Maria called her between 1:00 a.m. and 3:00 a.m. Maria sounded "really scared, real desperate" and just wanted to get to Adela's apartment. Maria said she was in the parking lot of the apartment complex, and wanted to know exactly where Adela lived since Adela had just moved. Adela gave her the location.

Ruby drove Maria and the children to Adela's apartment. Maria went into the apartment with her younger children; her older children were in the car. Adela testified Maria looked "bad." She was dirty, her hair was messed up, and she was crying; the younger children were also crying.

Adela testified that Maria said she was "terrified" of defendant and "felt threatened to death." Maria said she had "escaped" from their residence with her children, and they hid in their apartment complex. As they were hiding, defendant walked around and looked for them. Maria said that Ruby picked them up from the vicinity of their apartment and drove them to Adela's apartment.

Adela encouraged Maria to get help from the police. Maria said she was afraid to call the police because defendant had threatened to harm Maria and the children once he was out of custody. Maria said she had a plan to ask her employer to transfer her to a different office, and defendant would not know where she was working. Adela testified that she contacted Maria the next day, and determined that she had left her work location.

Expert testimony; intimate partner violence

Nada Yorke, a licensed clinical social worker, testified as a prosecution expert on the dynamics of intimate partner violence, previously referred to as battered women's syndrome. Yorke had not interviewed anyone and did not know the facts of this case, and testified generally about domestic violence situations.

Yorke testified that domestic violence involves intimidating behaviors designed to control one partner. It can be done through force and violence, financial control, or control of the children, and consists of any behavior that causes fear and behavior modification to prevent abuse.

Yorke testified the "cycle of violence" is a pattern of behavior in domestic violence cases that consists of three phases; tension, explosion, and honeymoon. During the tension phase, the victim walks on eggshells, sensing that something is going to happen. The victim may modify behavior to avoid an outburst. During the explosion phase, an outburst occurs, which may involve yelling, using profanity, throwing things, or physical touching. The explosion is followed by the honeymoon phase, during which the abuser and victim make up. Some situations do not involve all three phases, and may progress from tension to explosion, without a honeymoon.

Many domestic violence victims recant or change their story. It is common for a domestic violence victim not to report abuse because of shame, embarrassment, and a desire to keep it secret. The victim may believe that she can modify her behavior to prevent the situation from recurring.

Yorke testified about the three stages of victimization. During the first stage, the victim believes that she can control the situation and must have done something to provoke the abuse. In the second stage, the victim has tried everything she can think of to stop the abuse, yet the abuse continues. The victim returns to the relationship, burning bridges with people who may help her. The third stage involves repeated cycles of violence. In this stage, the victim believes there is nothing she can do to change the circumstances, and experiences "learned helplessness."

Yorke testified that victims remain in these relationships for several reasons. They may fear the abuser will find and kill him or her, particularly if children are involved, or believe the abuser will change. The victim may not want to deprive the children of a father figure, or there could be financial considerations to remain in the relationship.

In addition, victims of domestic violence may isolate themselves to avoid answering questions about the relationship. The abuser may encourage isolation to control the victim and keep him or her away from family members. Some victims create a safety plan designed to protect themselves from greater physical harm.

DEFENSE EVIDENCE

The defense recalled some of Maria's children to further testify about what happened in the hours leading to Maria's death.

Maria's son Oscar testified that earlier that evening, defendant and Maria took the children to Jack-in-the-Box. Defendant and Maria "argued a little bit" in the car "about like some stupid stuff," and Maria talked back to defendant.

Enrique (recalled as a defense witness) testified that when Maria was driving the car that night, she "was just laying her hand on her head as if she was just tired." She did that twice. Enrique did not recall his prior statement, that it looked like Maria was stressed out and had a headache.

Oscar testified that when they returned to the apartment, defendant and Maria continued to argue. Defendant was kind of talking loud. Maria sat on the couch and was holding Ruby's baby. Oscar testified defendant drank from a medium sized bottle of Hennessy. Maria tried to watch television with the children, but defendant continued to argue. Oscar went to his bedroom to play video games. He could still hear defendant and Maria arguing, but it was "off and on."

Oscar testified that they were going to leave because defendant and Maria were arguing, and defendant was drunk. Oscar thought defendant was going to stay at the apartment. Oscar went back to the living room and found Maria lying on floor. Defendant was sitting on the floor next to her. He was using his hands to push on her. Defendant told Oscar to help him. Defendant and Oscar lifted Maria on the couch and Enrique called 911.

Oscar testified defendant was crying and calling Maria's name. Defendant was "yelling stuff," like he was "praying or something."

Oscar held Maria's head and defendant tried CPR. Defendant tried to wake up Maria by slapping her in the face and shaking her shoulders. Oscar testified defendant was "smacking her" in the face. Oscar told him to stop and pushed him off Maria.

Maria's son Fernando testified he was asleep and did not hear anything until Alonzo woke him up. Fernando went into the living room and found Maria on the couch. Oscar was next to her. Defendant was yelling, screaming, and calling her name. He tried to breath into her mouth. Enrique was calling an ambulance.

Maria's daughter Maria M. testified she went to bed at 9:00 p.m., and heard "a bit" of an argument between defendant and Maria. Alonzo woke her up and said their mother was "having a heart attack." Maria M. went back to sleep, but Alonzo again woke her up. Maria M. got up and found her mother on the floor. Defendant was sitting on the floor and holding Maria, and her head was on his lap. Defendant was calling Maria and trying to wake her up. Defendant was stroking and comforting her. He was kind of crying and screaming "a little bit."

Maria M. testified Enrique and Oscar were there, and Ruby was standing next to the door. Defendant told Maria M. to pick up Ruby's baby from the couch. Maria M. took the baby into her bedroom and stayed there until the paramedics took Maria in the ambulance.

THE PROSECUTION AND DEFENSE FORENSIC TESTIMONY

The primary issue on appeal involves the forensic evidence about the cause of Maria's death, and the pathologist's failure to initially disclose that he retained some tissue samples from Maria's brain. We separately review the testimony from the prosecution and defense experts, their opposing opinions about the cause of Maria's death, and whether the preservation and examination of brain tissue would have changed these opinions.

Dr. Whitmore's testimony for the prosecution

Dr. Robert Whitmore testified for the prosecution about Maria's cause of death. He was a board certified forensic pathologist. Dr. Whitmore testified he was a contract employee and had a full time, salaried position with the Kern County Sheriff's Department. The sheriff's department was also the coroner for Kern County. His primary duties as a medical examiner were to "do autopsies and external examinations to determine the cause and manner of death."⁶

6 As we will explain below, one of the elements for a Brady violation is that favorable and material evidence must have been "suppressed" by the prosecution or a member of the prosecution or investigative team." (In re Brown (1998) 17 Cal.4th 873, 879 (Brown).) The parties dispute whether Dr. Whitmore was a member of the prosecution team within the meaning of Brady.

Dr. Whitmore performed the autopsy the day after Maria's death. It took about one hour and 40 minutes to complete. Detective Garcia and another detective from the police department were present during the autopsy, along with two autopsy assistants.

Dr. Whitmore testified there were signs of trauma on Maria's body of the treatment she received at the hospital. She had an abrasion on the chest, broken ribs, and a broken sternum consistent with chest compressions and CPR. He knew she had received CPR administered by both a layperson and medical professionals.

External injuries

Dr. Whitmore testified Maria's body had external injuries: a series of three bruises on the left cheek, and a "little" abrasion (i.e., scraped-off skin) a little higher on the left cheek. There was a small abrasion on the left side of Maria's nose, and a bruise on the right side of her chest. There were no external head lacerations.

Eyes

Dr. Whitmore saw "mild numbers" of "conjunctival petechiae" in both of Maria's eyes. These were "pinpoint red to red purple hemorrhages" usually found on the eyes, face, or head, and commonly seen in strangulation cases. The hemorrhaging is caused by more blood entering the head than is coming out, creating pressure that increases in the small capillaries in the eyes, which bleed and form the little pinpoint dots.⁷

7 Dr. Nichols, who treated Maria in the emergency room, testified that petechiae results from excessive pressure to force blood out of the blood vessels. Dr. Nichols did not witness anyone on the staff, under his direction or in his presence, apply that type of pressure to Maria while they treated her. He did not know what type of pressure had been used before she arrived at the hospital.

Neck

During the internal examination, Dr. Whitmore found some hemorrhages in the interior "strap" muscles on both sides of the front of Maria's neck. He described these as a "bruise inside the body."

There were two areas of hemorrhaging that went deeper into the interior of the left strap muscle. The areas on the left side were about halfway down the muscle; the outside hemorrhage measured two and one-half inches by two inches, and the inside one measured one and one-half inches by one inch.

There was a smaller hemorrhage on the interior strap muscle on the right side of her neck, lower down the neck and near the clavicle; it measured one inch by one inch.

Dr. Whitmore testified these hemorrhages were typically caused by pressure or "a lot of force" on the neck. He did not see bruising on the outer skin of Maria's neck. In other strangulation cases, Dr. Whitmore had seen bruised interior muscles without bruising on the outer skin, which can occur depending upon if clothing covered the area, the offender wore gloves, or how the perpetrator grabbed the victim's neck.

Brain hemorrhaging

Dr. Whitmore opened Maria's skull to examine her brain. He immediately noticed subarachnoid hemorrhaging under the thin and colorless membrane that covered the brain. The subarachnoid hemorrhages were red and thinner on top of the brain. It was thicker and much darker down both sides and at the bottom of the brain; it was the thickest and darkest, almost purple, at the base of the brain.

Dr. Whitmore testified he had photographs taken of the right side of the brain. He did not have photographs taken of the base of the brain, where the hemorrhaging was the thickest and darkest, when he removed the brain; he was not sure why he failed to do so.

Base of the brain; looking for an aneurysm

Dr. Whitmore testified that it was important to rule out a natural disease as the cause of death, and he used "caution" to look for a natural disease. He thought an aneurysm could have been the cause of the subarachnoid hemorrhaging in the brain.

Dr. Whitmore explained that a ruptured aneurysm could appear as subarachnoid hemorrhaging. "An aneurysm is a portion of an artery that's ballooned out. The wall balloons out and it's a weak point in the vessel and they can rupture and bleed and give subarachnoid hemorrhage, and they are usually found on or just off the Circle of Willis." The vessel wall becomes thinner and weaker, and likely to rupture at that point. "A ruptured aneurysm would look like a little sac sitting on the blood vessel with a tear in it."

Dr. Whitmore testified he performed a "[b]lunt dissection of subarachnoind hemorrhage." He removed the brain, turned it over, and scraped off the hemorrhaging to look for the source of the bleeding and evidence of an injury or possible natural disease. Dr. Whitmore exposed the "circular structure" of the "arterial system" at the base of the brain, known as the "Circle of Willis," that feeds blood to the brain.

Dr. Whitmore followed "standard procedure" to find a natural cause for the source of the bleeding by looking "where the hemorrhage is thickest and darkest." In Maria's case, the hemorrhage was thickest and darkest in the right middle of the cerebral artery that feeds the right middle part of the brain.

Dr. Whitmore cleaned the blood off that area and all the other vessels, and looked for an aneurysm or other explanation for the bleeding, such as a lacerated vessel or a malformation. "And I didn't find anything." (Italics added.)

"I didn't find an aneurysm, an AVM [arteriovenous malformation] or a laceration, any of those things I mentioned. I didn't find the source of the bleeding ...." (Italics added.)

Dr. Whitmore testified that it was not difficult to find an aneurysm in the brain, and "[y]ou can find probably 80 or 90 percent of them just by following the procedure that I did. They ... are small, but you can see them with a naked eye. They may be the size of a BB or a pea or something like that."⁸ (Italics added.) He used caution to look for an aneurysm or a torn vessel, and did not find either item.

8 The defense expert disputed Dr. Whitmore's testimony that an aneurysm could be detected by the naked eye without further examination.

Reliance on records

Dr. Whitmore did not have any police reports when he conducted the autopsy and reached his conclusions. He relied on reports from the coroner's investigator. He knew Maria was involved in "a physical altercation" and she had been "strangled and struck."

Dr. Whitmore did not subpoena or review Maria's medical records before completing the autopsy and preparing his report. Dr. Whitmore did not recall having information that Maria had complained of pain in her head, she was stressed out, or that her body might have been shaking when she initially lost consciousness. He did have information from the coroner's investigator that Maria suddenly lost consciousness. He only knew about the incident that occurred on the day of her death; he did not know about any prior incidents in her life.

Cause of death; blunt force trauma

Dr. Whitmore testified he never identified the source of the bleeding. However, he believed the cause of Maria's death was blunt force head trauma. His conclusion was based on the history provided to him, the bruises and abrasions on her body, and the subarachnoid hemorrhage within the brain.

Dr. Whitmore believed the three bruises on Maria's cheek were "a pattern injury" from "the object which made it," which he believed were "knuckles." He believed "she was struck in the face with a fist." The abrasion on the cheek that was a little higher than the bruises, was in the same location "as the knuckle pattern on the left cheek and it fits very well with being a scratch from a fingernail." There was a similar abrasion on the left side of the neck. The abrasion on the left side of the nose appeared to be caused by a fingernail.

Rejection of strangulation as cause

Dr. Whitmore found signs of strangulation, including the petechiae and hemorrhages on the neck muscles, but testified that strangulation was not the cause of death. The strangulation evidence was not "overwhelming" because Maria's hyoid cartilage was not fractured, and the petechiae numbers were mild. Dr. Whitmore testified that when someone is strangled, the victim can become unconsciousness after about 10 seconds of constant pressure, and die within five to ten minutes.

Dr. Whitmore testified that in his opinion, the subarachnoid hemorrhage from blunt force trauma was lethal and overrode indications of strangulation.

Preservation of samples

On cross-examination, Dr. Whitmore testified he did not take pictures of the base of the brain where the bleeding was either before or after he cleaned and removed the blood from the brain.

Defense counsel extensively questioned Dr. Whitmore about whether he preserved tissue from the brain.⁹

9 As we have explained, the primary issue on appeal addressed the prosecution's alleged Brady violation by failing to disclose prior to rebuttal that Dr. Whitmore preserved "stock tissue" from the brain.

"[Defense counsel]. And you also didn't save any arteries for a future examination?

"A. Right.

"Q. You didn't do any microscopic examination of the arteries at the junction point of the - of the junction point to identify perhaps evidence of previous bleeding, right?

"A. I did not do that.

"Q. And you did not do any microscopic examination to identify any areas where maybe the wall of the vessel or the wall of the artery is thin?

"A. I did not do that.

"Q. And you also did not fix the brain, when I say, fixing the brain, you took the brain out, right?

"A. Yes.

"Q. When you took the brain out - do you understand what fixing the brain is?

"A. Yes, I do.

"Q. Can you explain to the jury what that means?

"A. You soak it in formalin for a few days, and then you count it and do you exam after it's fixed.

"Q. So you didn't cut it into slides and put it under the microscope to look for the arteries for ruptured aneurysms and ruptured vessels and things of that nature, right?

"A. There's no need to." (Italics added.)¹⁰

10 As we will explain below, Dr. Whitmore was recalled on rebuttal and testified, for the first time, that he preserved "stock tissue" samples from Maria's brain. Dr. Whitmore defined "stock tissue" as referring to "sections" taken from organs during an autopsy "and collected together in a small jar with formalin or preserved - to preserve it...." The primary issue in this case is whether the prosecution violated Brady by failing to disclose the existence of the "stock tissue" from Maria's brain prior to rebuttal.

Dr. Whitmore conceded that he did not identify the source of the bleeding.

"[Defense counsel]. Don't you think that when you said it's not necessary, don't you think that putting slides under microscope and looking for maybe ruptured vessels and ruptured arteries would have been helpful to find the source of the aneurysm?

"A. That would be like looking for a needle in a haystack.

"Q. You could do that, but you didn't do that?

"A. That is correct."

Dr. Whitmore testified it would have taken 15 to 20 minutes to take "the circle out and count it and submit it," and another 20 minutes "to read the slides."

He conceded slides could have been preserved for future examination.

On redirect examination, the prosecutor returned to the topic about whether he should have saved samples from the brain.

"[The prosecutor]. Defense counsel asked why you didn't save any arteries, do you recall that?

"A. Yes.

"Q. And can you tell me why you did not? [¶ ... [¶]

"A. I didn't find anything, so what am I saving?

"Q. And you also - [defense counsel] also stated whether or not you did a microscopic examination and you stated that you did not do that in this case?

"A. Right.

"Q. Why did you not do that in this case?

"A. Probably 80 to 90 percent of the persons with aneurysms can be found grossly, that means a naked eye. And anything smaller than that is just going to be a matter of luck as to whether or not it will show up on a histo [sic] slide, and the same things can be said for laceration. I was looking for aneurysm and/or a laceration. The bleed came from somewhere, and it's either one of those two. If it's an aneurysm, it's a lacerated aneurysm." (Italics added.)

Possible symptoms of aneurysm

Also on cross-examination, Dr. Whitmore testified that he looked for evidence of an aneurysm with "the naked eye." He agreed that bad headaches and the sudden loss of consciousness are signs of a ruptured aneurysm. The headaches could have indicated the aneurysm had already ruptured, that resulted in bleeding under the arachnoid, and caused increased pressure on the brain.

Dr. Whitmore testified most of the bleeding was found in an area of the brain where aneurysms are commonly found. A person can die from a ruptured aneurysm without medical intervention.

Dr. Whitmore testified there was a "small chance, maybe a 1 percent chance that I missed an aneurysm."

"[Defense counsel]. And it's possible that it - if she perhaps died of an aneurysm, that she could have died of an aneurysm?

"A. Well, if it was an aneurysm that bled, she died from that.

"Q. I'm sorry, what?

"A. If a ruptured aneurysm caused the bleeding, the bleed killed her, but it doesn't change the manner or the cause.

"Q. Okay. Well, it could be that she died of a ruptured aneurysm.

"A. I'd have to say yes." (Italics added.)

On redirect examination, Dr. Whitmore testified a person could have an aneurysm and not die from it as long as it never started to bleed. They enlarge over time and become more likely to rupture. "And when they enlarge, they are more likely to rupture, sometimes spontaneously, which makes it a natural disease or sometimes when there's head trauma which would make it - depending on the nature of the trauma, an accident, homicide, maybe a suicide. It just depends."

"[The prosecutor]. [S]omeone can have an aneurysm, and it's just that there needs to be something that would cause it to rupture or it couldn't actually rupture also?

"A. Yes. When we don't know the cause of the rupture, we call it a spontaneous rupture. That's usually in a clinical setting. They might use the term, stroke." (Italics added.)

The symptoms of a rupture could include a sudden onset headache that becomes worse over time, and shaking of the body just before losing consciousness.

Possibility that a blow could have ruptured an aneurysm

Dr. Whitmore testified his opinion about the cause of death would not change if he had information that Maria had been experiencing headaches, or she complained of a stress headache and was shaking before she lost consciousness.

"[The prosecutor]. If someone had an aneurysm - well, let's say if Maria did have an aneurysm, could being hit in the face cause that to rupture?

"A. Yes.

"Q. What are some of the things that could cause an aneurysm to rupture?

"A. Trauma, stress ... high blood pressure, so-called spontaneous, that means we don't know why it ruptured, and under high blood pressure, things that would increase your blood pressure medications, drugs." (Italics added.)

Dr. Whitmore testified that even if Maria had an aneurysm that would not change his conclusion about her cause of death: "Just to say that the head trauma caused the aneurysm to rupture." (Italics added.)

Deputy coroner's investigation

Dr. Whitmore testified he relied on reports from the coroner's investigator when he prepared his autopsy report.

Rebecca Fisher, the deputy coroner, testified that she prepared that report for Dr. Whitmore. After Maria's death, she went to the apartment and spoke to Officer Messick and Detectives Kroeker and Finney about the situation. She also spoke to a nurse at the hospital.

"Q. So what was it that you relayed to Dr. Whitmore?

"A. When I got on scene, the information that I received from the officer is that the decedent and her husband was in a physical altercation, and that the husband had struck her in the face or punched her in the face with a closed fist. And, at that time, she went unresponsive and the decedent's son called 911 and her husband started CPR and officers arrived on scene, and she was still breathing at the time and he was unresponsive and she was bleeding and then transported to the hospital.

"Q. Did you also indicate that also [defendant] had grabbed the decedent by the neck also?

"A. Yes..." (Italics added.)

Dr. Omalu's testimony for the defense

Dr. Bennett Omalu, M.D., testified as the defense expert.¹¹ He was board certified in five subspecialties, including clinical and forensic pathology; and neuropathology, regarding brain disease and trauma). At the time of trial, he was the medical examiner of San Joaquin County and performed autopsies for the sheriff's department. He also had a separate private consulting practice.

11 As we will explain below, the defense initially retained Dr. Harry Bonnell to testify. Just before he was scheduled to appear at trial, Dr. Bonnell suffered a heart attack. The court continued the matter for several weeks until it was determined that Dr. Bonnell was unable to appear. In his place, the defense retained Dr. Omalu to testify as the expert.

Dr. Omalu reviewed the police reports, Dr. Whitmore's autopsy report, and a transcript of Dr. Whitmore's trial testimony. He also reviewed the ambulance and medical records from Maria's treatment by the paramedics and at the hospital, transcripts of interviews with the children regarding Maria's headaches, and a report prepared by Dr. Bonnell, the original defense expert who was unable to testify at trial.

Dr. Omalu testified Dr. Whitmore's autopsy was "grossly negligent," and the autopsy report had a "pattern of gross mischaracterization of medical evidence" that showed "limited knowledge in this field." Dr. Whitmore's opinion that Maria's death was caused by blunt force trauma to the head was "grossly, grossly inaccurate," and he could not "disagree with his opinion in any other stronger term. I could bet my license, this is not blunt force trauma."

Cause of death

Dr. Omalu testified to his opinion that Maria died from a spontaneous subarachnoid hemorrhage due to a ruptured cerebral berry aneurysm. He was 90 to 99 percent certain of this conclusion, leaving an error rate of one percent because he believed medicine was not an absolute science.

Dr. Omalu testified the hospital's medical records of Maria's treatment in the emergency room included a diagnosis of disseminated intravascular coagulopathy (DIC), and noted an international normalized ratio (INR) of 1.7. In Dr. Omalu's opinion, an INR greater than 1.5 is indicative of a spontaneous bleed inside the head and not blunt force trauma.

Ruptured aneurysm

Dr. Omalu testified the autopsy showed "subarachnoid hemorrhage. The common cause of that in medical science is berry aneurysm," which meant an abnormal dilation or ballooning of a blood vessel. An aneurysm can be undetected without a leak or rupture.

The most common disease associated with berry aneurysm is hypertension, and a headache was the most common manifestation. Dr. Omalu testified that Maria was 40 years old and had advanced hypertension, based on the autopsy report's description of her heart, and berry aneurysms were commonly found in women between 40 to 50 years old.

Dr. Omalu testified to his opinion that Maria may have had insignificant "sentinel leaks" for days or weeks, but the massive leak occurred just before she became unresponsive. Maria complained of a headache in the back of her head, between the neck and the base of her brain. A sentinel leak occurs when blood starts to leak from the artery prior to rupture. Some people could have sentinel leaks for years that heal. However, "[s]entinel headaches, as they are called before the final overt bleed [is] classic in a woman about 40 years old with hypertension. This is as classic as it can be."¹² Before an aneurysm ruptures, "it will leak closely and cause the headache. When it ruptures, it collapses."

12 Dr. Omalu noted that the photographs of Maria's apartment showed a bottle of prescription-level Ibuprofen, and he believed that indicated that Maria may have been in severe pain. He did not have any information about why she had that prescription.

Dr. Omalu testified a ruptured aneurysm is a medical emergency, which will result in death if left untreated. About 50 percent of people suffering from a ruptured aneurysm die within 72 hours. The person would immediately lose consciousness because the bleed causes spasms in the vessels, which may lead to shaking of the body and seizure-like motions that are "generalized spasm[s] from agony of the brain." If left untreated, the body's healing system becomes overwhelmed and there is a massive bleed.

Examination for an aneurysm

Based on the autopsy report, Dr. Whitmore reported that most of the bleeding in Maria's brain was from the right medial cerebral artery, which is the most common place for berry aneurysm. Dr. Omalu testified:

"It's the totality of this case ... pointing to spontaneous subarachnoid hemorrhage due to a rupture cerebral aneurysm. The problem we have here is a flawed methodology."

Dr. Omalu explained there were ways to identify a cerebral aneurysm, and it could take him up to two hours to "painstakingly do so."

"Sometimes you inject a dye. You use hydrogen peroxide, take histological sections of the entire vessel system. You do a specific analysis. We call a Van Gieson's stain. It's a specific type of silver stain we use microscopically to identify the aneurysm, even though you don't see the leakage out."

Since Dr. Whitmore could not visually find the source of the bleeding, he should have taken additional steps and microscopically looked for the source, but failed to do so. Dr. Omalu showed photographic examples from other unrelated cases where he had searched and found evidence of brain aneurysms, and gave detailed testimony about the methods required to examine the brain in these situations.

"Some aneurysms grow into the brain and they become enveloped by the brain, and no matter what dissection you do, you won't see it. Unless you dissect and you inject to make it bulge out, you wouldn't see it."

It might take longer than planned to conduct this type of examination, and "such a meticulous dissection is not something you would do in a matter of minutes." "You may be lucky and you find it in about five, ten minutes. But like you have seen how small they are, it's painstaking. You need patience."

Why an aneurysm would rupture

Dr. Omalu testified a berry aneurysm could rupture on its own at any time, classified as a spontaneous rupture. It could occur after a person coughed or sneezed, or had a constantly-elevated blood pressure.

Dr. Omalu explained there was a difference between a spontaneous and traumatic rupture. If an aneurysm ruptured after the victim was punched in the head, that would be classified as a traumatic subarachnoid hemorrhage, but that was less likely to occur.

"... To suffer traumatic subarachnoid hemorrhage, it is a severe, traumatic brain injury. It is not something you would sustain from a shove or a push. You see football helmets, the hard boom, football players rarely have subarachnoid hemorrhage .... It's a severe type of injury. It is not like a punch on the face [and requires] severe impact .... It is like in a motor vehicle accident traveling at 50 miles an hour."

Whether a punch could have caused the subarachnoid hemorrhages

In response to the prosecutor's questions on cross-examination, Dr. Omalu testified that if Maria did not have an aneurysm, the perpetrator had to apply a severe amount of force to her head to cause the subarachnoid hemorrhaging in Maria's brain.

"Q Are you admitting, then, that if it's a severe amount of force behind... one punch, one punch could cause this type of hemorrhage?

"A No. One punch does not cause it." (Italics added.)

Dr. Omalu explained: "When you punch somebody, his head doesn't say, punch me, again. When you give somebody a hard punch, he falls and slams the back of the head on a hard surface, and the head will bounce up, again. And many times, you see contusions, extensive [contusions] at the point of impact at the occipital scalp." In such a case, the subarachnoid hemorrhage would not have been caused by the punch, but by the second impact of the head on concrete.

"Q ... Are you saying that in order for someone to have subarachnoid hemorrhaging, that there has to be some type of damage to the exterior portion of their body?

"A No. [¶] When subarachnoid hemorrhage is traumatic, it does not occur in an isolated manner, by itself. You see other signs of trauma, like intraventricular hemorrhage, like defuse traumatic ... injury, not just hemorrhage by itself in an isolated—when it's isolated.

"The way it is in this case, it's spontaneous. There is no other evidence of blunt force trauma.

"Remember, we don't have any contusion of the brain in this case. So, think about it.

"Is it possible to have subarachnoid hemorrhage with no confusion [sic] to the head in blunt force trauma?

"Remember, if I were to punch you in the head, because the brain floats like a balloon inside your skull, one punch, your brain will bounce around your head and you will see contusions of the frontal pole and the occipital pole. Sometimes concussion of the temporal pole indicates impact.

"We don't have any of that in this case, whatsoever.

"In the absence of intraventricular hemorrhage, the absence ... of contra contusions of the brain this is spontaneous subarachnoid hemorrhage, and nothing else."

Dr. Omalu testified there were six different kinds of aneurysms, which was why it was important to study the brain to determine what type was present and why it ruptured.

"Berry aneurysms, no matter how much you punch ... wouldn't rupture. It's not associated with trauma. That is why it causes spontaneous. Whenever you have trauma involved, it completely changes. It's no longer spontaneous. It's traumatic subarachnoid hemorrhages. It's completely different science. We shouldn't confuse the two, whatsoever. There is a very big line dividing the two." (Italics added.)

The prosecutor again asked whether a punch in the face would result in dissection of the aneurysm.

"Dissection is not rupture. They are two different things. Punch on the face could result in dissection. Not just a punch. If you are punched and you fall, okay. But when that happens, the mechanism is different. It's a traumatic subarachnoid hemorrhage, and you don't have any aneurysm in that. Dissecting subarachnoid hemorrhage means the walls of the vessel lacerate.... When they lacerate, they become loose...."

Absence of abrasions

Dr. Omalu testified the blood observed in Maria's nose by the responding officers was bloody discharge, and it was a "classic" result of the brain hemorrhage and bleeding inside the brain. It would have originated from the lungs, and moved through the bronchial system into the nose.

Dr. Omalu testified the marks on Maria's face, described by Dr. Whitmore and shown in the photographs, were not the result of blunt force trauma. He again noted that the responding officers, paramedics, and the emergency room physician "did not see any trauma." Dr. Whitmore did not find any other bleeding or trauma aside from the subarachnoid hemorrhages.

Dr. Omalu testified he would have expected to find more extensive injuries to Maria's face, including swelling and more contusions, if the three marks on her cheek were inflicted by being punched so hard that it caused bleeding in the brain.

Dr. Omalu instead believed the marks on Maria's face occurred because of the emergency treatment rendered by the paramedics and hospital staff. These marks were "spontaneous ecchymosis," which meant bleeding under the skin. He referred to photographs that showed similar treatment-related injuries to her chest.

Dr. Omalu testified the medical records showed the paramedics had a hard time inserting the tracheal tube, and they had to do it twice "because she was having a seizure." According to the hospital records, the emergency room physician reported the tube was "not well placed." At the end of the tube, "there is a big adhesive on the cheek" that went over the cheekbone.

"What you do is, you take your adhesive and you press it on the cheek to hold it. Because she's unconscious, she could go into spasm and pull it out. So you hold, press it down, and without these processes, over 90 percent, if not more of patients who have been treated like that will have some degree of facial ecchymosis, an abrasion.

"She had one on the temple. She had one on the nose. She had ecchymosis on her chest. These are all treatment-related injuries."

It was not unusual to have "ecchymosis" only on one side of the face, because the "doctor could be pressing harder on one side and not on the other side."

Dr. Omalu testified Maria went through "massive CPR," which resulted in fractured ribs on both sides. "The massive pulmonary resuscitation, she fractured and bleed [sic] massively into her chest."

The bruise on Maria's shoulder was another example of ecchymosis that surrounded needle puncture marks. The needle marks were near a major vein where an intravenous catheter would have been appropriate, and the puncture was not described in the autopsy report.

Absence of strangulation evidence

Dr. Omalu did not find evidence of strangulation because the hyoid bone was not fractured. Based on his review of the photographs, he thought it was "impossible" to see hemorrhages in the two interior strap muscles without having external injuries on the neck.

Dr. Omalu believed the bleeding in Maria's interior neck muscles were treatment-related injuries, likely caused from needle punctures or the intubation process. The face had to be held down and the neck hyperextended to insert the endotracheal tube. There would have been a different bleeding pattern from manual strangulation.

Dr. Omalu found the petechiae in the eyes were insignificant because the numbers were small, and the petechiae were usually found in the face with strangulation.

Criticisms of Dr. Whitmore's autopsy

Dr. Omalu testified the autopsy performed by Dr. Whitmore was "grossly" deficient. Dr. Whitmore's autopsy report did not address Maria's medical history, and instead focused on the police report that she suffered blunt force trauma.¹³ Dr. Whitmore did not review Maria's medical records that showed that the police, paramedics and emergency room staff did not see "any evidence of trauma, whatsoever."

13 Dr. Omalu testified that Dr. Whitmore improperly relied on the "police report" to reach his conclusions. As previously explained, Dr. Whitmore testified he did not review any police reports, but instead relied on the report prepared by the coroner's investigator. The coroner's report stated that defendant grabbed Maria's neck, he struck or punched Maria's face with a closed fist, and she became unresponsive.

Dr. Omalu was also critical of Dr. Whitmore's failure to personally examine the crime scene, or the clothes Maria wore at the time of the incident. Her clothes might have contained evidence of bleeding or a physical altercation.

Lack of photographs

Dr. Omalu testified it was "egregiously negligent" that Dr. Whitmore did not take photographs of the subarachnoid hemorrhaging in Maria's brain.

"There was no picture whatsoever that was taken that showed the bleeding. There was just one picture that showed the top of the brain. There was no picture of the base of the brain. There was no picture of the blood vessels of the brain. So, there was no picture for me to look at except the descriptions at autopsy."

While one photograph showed a side view of the brain and some of the subarachnoid hemorrhages, it was still inadequate because it only showed the temporal and parietal lobes and nothing else.

Failure to preserve tissue

Dr. Omalu testified that he was concerned Dr. Whitmore failed to preserve any tissue for future examination by the defense.

"In the autopsy report, he put, histology, none ... he didn't perform any microscopic analysis. He didn't save tissue for histology." (Italics added.)

Dr. Omalu testified about the meaning of "histology."

"It means, you took tissue and you save it and you analyze it for microscopic analysis and you generate slides, histologist slides, so you perform microscopic examination of the body." (Italics added.)

Dr. Omalu testified he called the defense attorney and asked, "what about the histologist slides, the microscopic slides? No microscope slide was taken in this case, whatsoever. I said, okay. What about the tissue? When you do autopsy, you preserve tissue. There was no tissue kept, preserved, whatsoever. And this is grossly negligent. And the significance of that is the rule, when we practice the standard is when you see something significant, you take a histology. If you don't want to take the histology, you store the tissue so that another doctor can come and review it." (Italics added.)

Dr. Omalu testified that after learning there were no histology slides, he asked the defense attorney "for stock tissue, since they did not do histology," and the defense attorney said there was no stock tissue available. (Italics added.)

Dr. Omalu explained that "stock tissue" was different from histology tissue.

"Stock tissue is the one you keep to [the] brain, the tissue, so that if for any reason another section wants to perform the independent analyses, you say, here, do whatever you want to do. But there is also histology tissue which is kept separate from stock tissue."

The prosecutor's questions about stock tissue

On cross-examination, the prosecutor asked Dr. Omalu whether it would be significant if stock tissue had been preserved.¹⁴

14 The prosecutor asked these questions during this cross-examination on January 12, 2015, the first day of Dr. Omalu's testimony and immediately after his direct examination. On January 14, 2015, Dr. Whitmore returned on rebuttal and testified for the first time that he kept some stock tissue from Maria's brain.

"Q Would it change your opinion if there was stock tissue taken in this case.

"A No. If there was stock tissue, bring it. Let's do a histological analysis to further confirm that it's not blunt force trauma.

"Q So, if there is stock tissue out there, you would be open to performing further testing on it?

"A Yes. Most definitely, yes. Yes.

"Q But you would already conclude that it would only just confirm the berry aneurysm?

"A Yes, based upon my broad experience. We do microscopic description into further a null and nullify the description or suspicion that it

was blunt force trauma. It's ridiculous, such assumption, if we have microscopic slides to examine.

"Q So, analysis of the stock tissue would be pointless in this case, that what you are saying?

"A Sorry?

"Q Based upon what you said, the analysis of the stock issue, if it was selected, would be pointless because you already say the conclusion is still going to be that she had a berry aneurysm?

"A It wouldn't be pointless. It would be continuing education for Dr. Whitmore to further realize the mistake he made on this case.

"Q The only purpose for conducting the histology in this case at this point would just be to educate Dr. Whitmore?

"A To further confirm. In fact, I believe if we did a histology in this case, he may amend his autopsy report to humbly acknowledge the mistake he has made.

"Q But an analysis of those stock tissues would not cause you to humbly change your opinion?

"A No. It will humbly make me look at the slides and further add evidence that indicates it's subarachnoid or spontaneous subarachnoid hemorrhage.

"Q So, in other words, it doesn't matter to you whether there is stock tissue out there, or not?

"A It matters to me. I want there to be stock tissue. I will be happier today if I know a colleague of mine saved stock tissue on a homicide case. I will be exhilarated." (Italics added.)

The prosecutor started to ask Dr. Omalu, "If I were to tell you that there is stock tissue ...." Defense counsel objected and said there either was or was not stock tissue. The court replied that the prosecutor was asking a hypothetical question. The prosecutor continued with the question.

"Q So, if I were to tell you, there is stock tissue available for you to analyze in this case, it still won't change your opinion and not be

something that you would want to go and perform testing on before finishing your testimony?

"A If there is stock tissue in this case, my professional advise [sic] to the court would be, let's stop the proceedings, bring the stock tissue. Let's examine them and then come back in. There is stock tissue, what stops us. Let us stop. Bring the stock tissue. Let us examine them and let me come back and testify. I'll show you different pictures of why this is not blunt force trauma." (Italics added.)

The prosecutor again asked Dr. Omalu why he did not personally contact the coroner's office to confirm the absence of stock tissue. Dr. Omalu testified it was not his responsibility to do so since he did not perform the autopsy.

"I asked the attorney that retained me on the case, could you please ask the D.A. for stock tissue. She got back to me, there is no stock tissue. I looked at the autopsy report. It said histology, none. If there was stock tissue, all this while I've been told - this case has been on for two months. How come it hasn't been performed and made available to me? That means evidence is being concealed from me, the defense expert." (Italics added.)¹⁵

15 The prosecutor moved to strike Dr. Omalu's response; the court overruled the objection and let the answer stand.

Dr. Omalu testified that if Dr. Whitmore had preserved stock tissue from Maria's brain, "we would have gone back and taken sections and provided more specific and definitive answers" about when the rupture and bleeding began. (Italics added.)

On cross-examination, the prosecutor asked Dr. Omalu when Maria's alleged aneurysm changed from a sentinel leak to a massive bleed. Dr. Omalu replied that Dr. Whitmore had "failed us willfully. If he had taken sections that he should have taken, we would have all these answers for you. He failed to do that, so we don't have answers for you, and I think he failed to do that, because he didn't want ... us to have answers."

Dr. Omalu concluded that Dr. Whitmore's autopsy was "grossly below the standard of practice."

"We have specified guidelines. He did not follow the guidelines whatsoever. If - in my opinion, he should have saved this brain and taken

pictures and simply sent it to a neuropathologist, known expert of the brain to help us to come to the truth in this case...."

REBUTTAL EVIDENCE

The prosecution recalled Dr. Whitmore as the only rebuttal witness.

Disclosure about the existence of stock tissue

The prosecutor began by asking Dr. Whitmore whether he preserved any tissue, and reviewed his earlier testimony in the prosecution's case-in-chief.

"Q. Did I ever ask you whether or not you took stock tissue from the vital organs of Maria Cortez?

"A. No.

"Q. What is stock tissue?

"A. During the autopsy - specifically during the dissection of all the major organs, sections of those organs are taken by me and collected together in a small jar with formalin or preserved - to preserve it and that's standard on every autopsy.

"Q. And did you do that with your autopsy of Maria Cortez?

"A. Yes." (Italics added.)

Defense counsel immediately objected, said that she did not know that tissue was taken, and requested to approach the bench. After a brief conference, the court directed the prosecutor to continue.¹⁶

16 We will address the circumstances of Dr. Whitmore's rebuttal testimony, and defense counsel's objections, in the procedural background.

Dr. Whitmore testified it was standard procedure to take stock tissue in every autopsy, and he followed that procedure in this case. Law enforcement officers were present during the autopsy but he was not sure if they realized what he was doing.

Examination of the brain

Dr. Whitmore testified he did not review Dr. Omalu's report, but the prosecutor advised him about it. Dr. Whitmore testified he followed the proper procedure when he examined and dissected Maria's brain. He first performed a gross examination with the naked eye. He determined the bleeding was from the base and right side of the brain, where the hemorrhages were thickest and darkest. He next removed the subarachnoid hemorrhage to examine the structure at the base of the brain and the Circle of Willis (the arteries at the base). He looked for "gross evidence of anything that would tell me exactly where the blood was coming from," such as a ruptured berry aneurysm or an arterial malformation.

Dr. Whitmore testified the bleeding appeared to be coming from the area of the right middle cerebral artery. He exposed that artery as far as possible, and did not see any evidence of "a torn blood vessel berry aneurysm," arterial malformation, "or any other reason to explain the source of the bleeding."

"The blood shouldn't be there. It's coming from a blood vessel. The blood is only in the vessel. If the ... vessel is disrupted in some way, exposed to the outside, it will bleed and cause a hematoma, AKA, a subarachnoid hemorrhage in this case, and so something was torn." (Italics added.)

Dr. Whitmore testified he looked for a berry aneurysm; he did not see any evidence of one; and "there is a 1 percent chance that I could have missed it. Whatever it was, I missed it is the point." (Italics added.) While he missed the cause of the bleeding, that did not change his opinion that the cause of death was "subarachnoid hemorrhage due to blunt force head trauma."

Dr. Whitmore testified that an arterial malformation could bleed if someone was hit in the head. A healthy artery could rupture on its own, but it was more difficult to tear a healthy artery compared to a berry aneurysm or arterial malformation.

Dr. Whitmore testified that a torn artery, a berry aneurysm, or an arterial malformation could rupture if the person was hit in the head. However, he did not find any such malformations in Maria's brain.

Dr. Whitmore testified he had a "hypothesis" about the cause of Maria's death before he began the autopsy, based on the history that was provided in the coroner's investigative report.¹⁷ His hypothesis could have changed as he conducted the autopsy.

17 As previously explained, the coroner's report stated that defendant grabbed Maria's neck, he struck or punched Maria's face with a closed fist, and she became unresponsive.

Crime scene and clothing

Dr. Whitmore responded to Dr. Omalu's criticisms, and testified it was not standard procedure for the pathologist to go to the crime scene. Dr. Whitmore relied on the coroner's investigator to provide information about the scene visit. He did not completely rely on that report to reach his conclusions, and could disagree based on the results of the autopsy.

Dr. Whitmore did not believe that examining Maria's clothing was important to the autopsy results, particularly since the emergency team cut away her clothing to treat her. During his rebuttal testimony, however, the prosecutor introduced Maria's clothing as exhibits; Dr. Whitmore examined Maria's clothing in court and testified he did not see anything that would change his opinion about the cause of death.

Emergency treatment records

Also during his rebuttal testimony, the prosecutor asked Dr. Whitmore to examine the records of Maria's treatment in the emergency room. Dr. Whitmore testified he had previously seen a few pages from these records. He read the rest of the report in court, and testified the records did not change his opinion about the cause of death.

Dr. Whitmore reviewed his own report about the condition of Maria's heart and part of the hospital's report about her condition. He did not believe Maria suffered from hypertensive cardiovascular disease and only saw a mild amount of pathology to the heart that was "a little abnormal, but doesn't change anything." The laboratory results did not reveal damage to the kidneys to indicate chronic hypertension, and Maria's renal function was normal.

Also in court, Dr. Whitmore reviewed medical records related to medications previously prescribed to Maria. Maria had been prescribed Sulfameth, commonly used to treat urinary tract infections; Clindamycin, an antibiotic; and Ibuprofen, for pain and inflammation. The medications did not change Dr. Whitmore's opinion as to the cause of death, and did not indicate that she was suffering headaches from a berry aneurysm.

Cross-examination

Dr. Whitmore testified he was not certified in clinical pathology or neuropathology. He had previously been a forensic pathologist in Imperial County, a deputy medical examiner in San Diego, a chief medical examiner in Colorado, and a deputy medical examiner in Alaska, and never received any negative reviews of his work. He had worked in Bakersfield since 2011.

Counsel asked Dr. Whitmore if the stock tissue from Maria's body was in "the lab," and how he collected it. He replied that it was in the coroner's office, and he collected tissue "organ by organ" during the autopsy. He put the tissue "in the stock jar and the stock jar has got formalin in it, and at the end of the autopsy, that's collected." He did not collect tissue from every organ, but he did take tissues from the brain and it was still in the coroner's office.¹⁸

18 During his testimony in the prosecution's case-in-chief, defense counsel asked Dr. Whitmore if he had "fixed" the brain in formalin; Dr. Whitmore testified that he did not do so.

Defense counsel asked Dr. Whitmore about his conversations with the prosecutor. Dr. Whitmore testified he talked with the prosecutor before his first trial appearance, and he received and reviewed the report from Dr. Bonnell, the initial defense expert. After his testimony, he again met with the prosecutor and she handed him a copy of Dr. Omalu's report. He refused to review Dr. Omalu's report.

"Q. From the beginning you knew that the issue involved perhaps whether Maria Cortez had an aneurysm that had ruptured or whether [defendant] killed her?

"A. Yes." (Italics added.)

Defense counsel reminded Dr. Whitmore that when he initially testified in the case, he said that he did not take slides of the brain. Dr. Whitmore confirmed that he did not make any tissue samples for histologic slides of brain tissue for microscopic examination.

"Q. You came to court and you testified, but you never said that there were tissues taken the first time when you came to court, right?

"A. On my autopsy report on the last page, there's a section called histology and I say none. That means that I didn't take the sections, put them in the cassette and send it to histology and get it cut from microscopic slides, but it doesn't mean that I didn't save any.

"Q. So all along you knew that there was issues in the case -

"A. That I knew what the issues were?

"Q. --right? Like aneurysm?

"A. Yes.

"Q. Or a person killing another human being?

"A. Well, I became aware of it when I first met with the D.A.

"Q. Right. And all along you knew that it had to do with something that happened in Maria's head, correct?

"A. Yes. [¶]

"Q. There was never any mention of any tissues when you came to court and testified the first time, correct?

"A. I don't believe there was, no.

"Q. There was never any mention in your autopsy report of any tissues taken of Maria's brain, correct?

"A. In my autopsy report?

"Q. Yes.

"A. You could say that.

"Q. And when you talked to the District Attorney's Office the first time, did you mention to them about the tissues?

"A. I don't recall any discussion about the tissue.

"Q. Did you, at any point, before you took the stand to testify today mention anything about the tissues?

"A. Yes, we have talked about the tissues.

"Q. When did you talk about the tissues?

"A. At least since our last meeting last week." (Italics added.)

Defense counsel asked if she could go to the coroner's office and get the tissue for the defense expert to examine. Dr. Whitmore said yes.

"The stock jar tissues are there for both sides to use ... at their discretion that they want to use it." (Italics added.)

Redirect examination

Dr. Whitmore testified he worked with the district attorney's office on a regular basis to prepare for trial. He usually met with the deputy district attorney before a homicide trial, and reviewed any reports from the defense. In this case, he met with the prosecutor about Dr. Omalu's report, the prosecutor told him about the contents, and they discussed Dr. Omalu's opinions.

Dr. Whitmore did not change his mind about the cause of death after learning of Dr. Omalu's opinion about a possible aneurysm. Dr. Whitmore testified he had discussed the possibility of an aneurysm with the prosecutor prior to his initial testimony.

Dr. Whitmore clarified the bleeding in Maria's brain would have been from a blood vessel because brain tissue did not bleed. There might be blood on the base of the brain.

"[The prosecutor]. And so having the bases of the brain tissue, that could possibly be in that stock tissue, analyze it, is that going to assist in any way determining the cause of death in this case?

"A. Looking at stock tissue is not going to help." (Italics added.)

Dr. Whitmore testified an aneurysm would have been on the surface of the brain and not the base.

Recross-examination

In response to defense counsel's questions, Dr. Whitmore testified he received an e-mail from counsel on September 5, 2014, prior to trial, and defense counsel asked to make an appointment and speak with him about his autopsy findings. Dr. Whitmore did not respond to the e-mail. Counsel also sent an e-mail on January 9, 2015, and left a voice mail the same day, and asked to meet with Dr. Whitmore about Dr. Omalu's report. Dr. Whitmore testified he replied to that e-mail, and told counsel that he was not going to read Dr. Omalu's report.¹⁹

19 Defense counsel's efforts to reach Dr. Whitmore on January 9, 2015, occurred during the lengthy continuance that resulted when the original defense expert was too ill to testify, and defense counsel instead retained Dr. Omalu. The trial resumed on January 12, 2015, with Dr. Omalu's testimony for the defense.

Defense counsel asked Dr. Whitmore whether he realized the defense was trying to obtain tissue samples:

"Q. [D]o you know what I've done to try to get the tissues? You know, that I've actually subpoenaed records from the coroner's office trying to get the pathology examination, are you aware of that?

"A. No. The first I have known that this was an issue was yesterday.

"Q. So all along that we knew about the aneurysm, it never occurred to you that it could be an issue?

"A. A microscopic examination of the brain was not indicated in my opinion.

"Q. But you don't have any tissues of the face?

"A. There may be.

"Q. Or do you?

"A. Some pieces with portions of the base of the brain there, but there's probably only maybe three or four pieces, one by one inch cubed of the brain and the stock joint.

"Q. So if I'm understanding this correctly, you took some tissues of the base, but not the entire base of the brain?

"A. When ... when I cut a brain, after I external the brain, then, I slice it like bread and look at the sections, and I routinely take certain portions of the brain and keep them in a stock jar, and the base of the brain is not really well represented in those pieces. They are from the inside of the brain.

"Q. But I'm talking about the bleeding, the area of the bleeding in this case, did you take tissues of that?

"A. There may be some of the bleeding on some of the pieces.

"Q. Would looking at some of those tissues that you have—some of them, would that perhaps help us to some extent try to find the potentially the source of the bleed maybe?

"A. I testified before that even if you were to submit the whole Circle of Willis in sections, that finding the alleged aneurysm when I didn't find it on gross with the naked eye would be like finding a needle [in a] haystack.

"Q. I understand that, and you've already testified about that. My question is, now say if I looked at some of the slides that you found on the base of the brain, would that help me to maybe find the source of the bleed?

"A. I doubt it.

"Q. Why?

"A. You would see subarachnoid hemorrhage and then you might see brain.

"Q. Right. You doubt it, because it's your opinion, right?

"A. I doubt it, because I didn't find a berry aneurysm.

"Q. That's what I'm saying. So how do you know ... maybe somebody else would have looked at it, could have found the source of the bleeding or might not have found the source of the bleeding, is that possible? Does that make sense?

"A. You're welcome to try.

"Q. Right. But isn't that possible?

"A. I would say no.

"Q. Because you couldn't find it - no one else in this world could ever find it either?

"A. Well, if you put it like that, I would not agree to that, but -

"Q. So someone did find it is what I'm saying?

"A. Well, if you know that it's there, let's go find it.

"Q. I'm asking you someone could find it, right?

"A. If it's there to be found, then, someone might be able to find it." (Italics added.)

PROCEDURAL HISTORY OF DEFENDANT'S TRIAL

AND BRADY OBJECTIONS

In order to address defendant's Brady contentions, we must review the procedural history of this case leading up to Dr. Whitmore's rebuttal testimony about the existence of stock tissue from Maria's brain, including defense counsel's pretrial discovery motions, the substitution of the defense expert because of illness, defendant's Brady objections in response to Dr. Whitmore's rebuttal testimony, and the court's denial of defendant's motion for sanctions because of the prosecution's alleged Brady violation.²⁰

20 As we will explain below, defendant relies on this procedural history in support of his appellate arguments about the prosecution's alleged Brady violation, prosecutorial misconduct, improper rebuttal testimony, and failure to preserve evidence pursuant to California v. Trombetta (1984) 467 U.S. 479 (Trombetta) and Arizona v. Youngblood (1988) 488 U.S. 51 (Youngblood).

Discovery motion prior to preliminary hearing

On October 8, 2013, the complaint was filed. Deputy Public Defender Arpa Keshishian represented defendant through the proceedings.

On November 14, 2013, defense counsel filed a motion for discovery prior to the preliminary hearing, and requested all reports from expert witnesses consulted by law enforcement and the prosecution, "including the results of all scientific tests, experiments, or comparisons," "[a]ll forensic examination reports prepared in this case," all documents prepared by the police department, crime laboratory, or any other agency "regarding any forensic examination performed in this case," "[a]ll documents prepared by the Kern County Coroner's Office regarding the examination of deceased, "[a]ll pathology examinations performed on deceased," "[a]ll medical documents possessed in this case"; all toxicology reports about the deceased; the results of all criminalistic or scientific analyses concerning any examination of evidence, "including lab notes, lab photos, results of forensic examination," and "any and all exculpatory evidence."

On December 3, 2013, defense counsel dropped the pending discovery motion without prejudice. On December 6, 2013, the preliminary hearing was held. On December 16, 2013, the information was filed.

Pretrial discovery motions

On July 3, 2014, defendant filed a motion for discovery, supported by defense counsel's declaration that she dropped her prior motion upon the prosecutor's representations that certain items would be provided. Defendant's motion stated the prosecution failed to disclose any reports prepared by the three officers who were present during the autopsy and the victim's medical records.

On July 16, 2014, the People filed a reply to the discovery motion, objected to the requests as overbroad, and stated the prosecution would provide what was required under Brady.

On July 31 and September 3, 2014, defendant filed motions for release of subpoenaed documents from the sheriff-coroner's office regarding the autopsy; and from Hall Ambulance and Bakersfield Memorial Hospital about the emergency treatment for Maria leading up to her death. The court granted the defense motions.

Start of trial

On November 4, 2014, defendant's trial began with the court's hearings on pending motions. Defendant's witness list included Dr. Harry Bonnell as the defense expert.

On November 12, 2014, defendant's jury trial began with the presentation of evidence.

On November 14, 2014, Dr. Whitmore testified in the prosecution's case-in-chief about the autopsy of the victim and his conclusion that she died from blunt force trauma.

Illness of first defense expert

On the morning of November 19, 2014, the prosecution was about to complete its case, and the defense witnesses were scheduled to begin testifying.

Defense counsel advised the court that the previous evening, she received a message that Dr. Bonnell, the defense expert, suffered a heart attack, and he was in the hospital. Dr. Bonnell had prepared two reports about Maria's cause of death and was a material witness. Counsel requested a continuance.

Outside the jury's presence, the court granted defendant's motion for a continuance and found Dr. Bonnell was a material witness for the defense.

"[S]o what I talked to counsel about is not declaring a mistrial until perhaps the first week after Thanksgiving or the week after Thanksgiving and find out when Dr. Bonnell would be available. If not that day, perhaps within a day or two of that day, we could move forward, and I would assume that by the time we get to Dr. Bonnell, we would be in a position that that would be the defense's last witness or next to last witness.... [¶]

"We would be essentially one witness away or perhaps two witnesses away from concluding the case and we have obviously a lot of

time invested in this case and we do have two alternates, so it's my intention to go forward ... and try to make contact with the doctor this afternoon to get any further updates, and then we will talk after lunch and determine ... what we're going to do."

The court intended to talk to the jurors about whether a continuance would present a problem for anyone. The prosecutor did not object.

The court advises the jury about the continuance

Thereafter, the court brought the jury back into the courtroom. Appellant's trial resumed with the prosecution's final witness. The defense case began with testimony from Enrique, Maria M., and Oscar.

At the conclusion of the evidence on November 19, 2014, the court advised the jury that it was going to continue the trial because an unfortunate incident had occurred and the defense expert had suffered a heart attack. The court stated that on December 1, 2014, it would determine when the trial would resume. It asked the jurors if anyone had a scheduling problem. There is no indication in the record that any of the jurors responded.²¹

21 Also on November 19, 2014, the prosecution rested. Defendant moved for acquittal on both counts; in the alternative, defendant moved to reduce count I, murder, to involuntary manslaughter. The court granted defendant's motion to dismiss as to count II, infliction of unjustifiable physical pain or mental suffering on Ruby's child, who was being held by defendant as he leaned over Maria. (§ 273a, subd. (a)). The court denied the motion for count I, murder.

Additional motions to continue

On December 1, 2014, the court held a hearing outside the jury's presence, and found Dr. Bonnell was medically unavailable, and it was unknown if he would be able to return. Defense counsel said she was trying to retain another expert. Thereafter, the court advised the jury that the matter had to be continued because of a problem with the witness.

On December 8, 2014, the court reconvened and again advised the jury that the matter had to be continued because of the problem with the witness. The court excused one juror for hardship and ordered the jury to return on January 12, 2015.

On January 7, 2015, defense counsel advised the court and the prosecutor that another expert had been retained and he would be available to testify when the trial resumed.

Resumption of trial

On January 12, 2015, the court reconvened defendant's jury trial.

Outside the jury's presence, the court stated the continuance had been "necessitated by the unfortunate circumstances" that Dr. Bonnell was ill and unable to appear, and Dr. Bennett Omalu would appear as the defense expert.

The court also noted that they had lost one juror, an alternate would be seated, and they still had two more alternates.

The jurors returned to the courtroom, and the court explained the situation and thanked them for the "unusual sacrifice" required by the continuance.

Thereafter, Dr. Omalu began his testimony as the defense expert on January 12, 2015, and concluded his testimony on the morning of January 13, 2015.

The prosecutor requests to recall Dr. Whitmore on rebuttal; defendant requests discovery

Later on the morning of January 13, 2015, after Dr. Omalu completed his testimony, the defense rested. The prosecutor said she was going to recall Dr. Whitmore on rebuttal, but he would not be available until the following day and requested a continuance.

Defense counsel objected to any further continuances and requested the court to order Dr. Whitmore to appear that afternoon unless good cause was shown.

Defense counsel also stated that if the prosecutor intended to call Dr. Whitmore in rebuttal, then the prosecutor already knew what he was going to say "and I'm entitled to any discovery as to rebuttal."

The prosecutor replied that she received Dr. Omalu's report the prior week, and they were working as quickly as possible to respond to it. It was not outrageous to continue the matter one more day after the lengthy continuance required because of the defense expert's illness.

As for discovery, the prosecutor said she did not have any duty to disclose anything to the defense, and Dr. Whitmore would testify "just in response to what we've heard."²²

22 As we will explain below, the prosecution's duty to disclose exculpatory evidence under Brady is ongoing, and continues "throughout the duration of the trial and even after conviction. [Citation.]" (People v. Kasim (1997) 56 Cal.App.4th 1360, 1383.)

The court admonishes the prosecutor about any new discovery

The court found good cause to continue the matter to the next day to allow Dr. Whitmore to appear in rebuttal to Dr. Omalu's testimony.

The court added that if the prosecutor learned "some new information beyond he's going to defend his autopsy, and that based on some new piece of evidence, you need to discover that to the defense." The prosecutor said she had already done so. Defense counsel said she had received an e-mail that did not disclose anything new. Defense counsel said that if the prosecutor introduced anything new without providing discovery, she would ask for a jury instruction about belated discovery.

The court reminded the parties that they knew their duties, and it wanted to avoid the situation "where the defense then has good cause to conduct some further investigation, and it might delay the trial again." The court asked the prosecutor that if she was going to introduce additional evidence in rebuttal, to advise defense counsel about the general nature of the anticipated testimony, so counsel could investigate it before the next day.

The prosecutor replied: "Everything is in response to what [defense counsel] presented, and she should anticipate it." (Italics added.) The court said it wanted to ensure they did not learn something the next day "that nobody knew, and then the defense needs time to investigate it...."

The court again admonished the prosecutor:

"If [defense counsel] has it, you don't have to give it to her. If it's something new, then, just give it to her. I don't want to be in a situation and you're entitled to investigate.... If it's something she doesn't have, let her know, so if we're simply not in a position tomorrow, I will have to decide if there's good cause to continue the case further." (Italics added.)

The court advised the jury that the matter would be continued until the following day.

Defendant's initial objections to proposed rebuttal evidence

On January 14, 2015, the court convened outside the jury's presence to discuss the prosecutor's rebuttal evidence.

The prosecutor stated that she was going to introduce evidence about the clothes Maria was wearing at the time of the incident, based on the testimony of the officers who responded to the apartment. The prosecutor also intended to introduce evidence that Maria received the ibuprofen prescription for dental pain, and that Dr. Whitmore would testify about these matters. The prosecutor did not mention anything about the discovery of stock tissue.

Defense counsel objected and argued such evidence was not rebuttal, and the prosecutor had to reopen the case if Dr. Whitmore was going to address these new issues since he did not rely on these matters in his original autopsy report or trial testimony.

The court overruled defense counsel's objections and found the prosecutor's proposed evidence was appropriate rebuttal evidence to Dr. Omalu's criticisms about Dr. Whitmore's autopsy.

Thereafter, Dr. Whitmore began his rebuttal testimony.

Dr. Whitmore's rebuttal disclosure about the existence of stock tissue

As set forth above, Dr. Whitmore took the stand in rebuttal, and the prosecutor's initial questions resulted in the disclosure for the first time that Dr. Whitmore had kept stock tissue of Maria's brain.

Defendant immediately objected to Dr. Whitmore's testimony that he retained stock tissue of Maria's brain. The court held a brief conference off the record, and directed the prosecutor to continue.

Also as set forth above, the prosecutor asked Dr. Whitmore to examine Maria's clothes, her medical records about previous prescriptions, and the hospital records about the emergency treatment she received before she died, and explain whether these records changed his opinion about the cause of death. Defense counsel repeatedly objected to these questions as improper rebuttal, and the court overruled the objections.²³ Defense counsel's Brady objections

23 Defense counsel did not withdraw her objections to this particular evidence, but she later stipulated to the chain of custody for Maria's clothes and the medication found in the apartment, to avoid having to call more witnesses in rebuttal.

During a recess outside the jury's presence, the court stated that defense counsel had objected to Dr. Whitmore's testimony about the existence of stock tissue.

Defense counsel stated that she had previously requested all pathology results in her pretrial discovery motions. In addition, she separately subpoenaed records from the sheriff-coroner's office, and personally contacted the sheriff's department for "double checking to see if there were any such evidence perhaps," but she was never advised or provided with tissues or anything of that nature.

"I was under the impression that there were nothing preserved from [Maria's] body for further examination. [¶] On those basis, I move to dismiss the case with prejudice. I believe that since this case comes down to cause of death, it would have been exculpatory and if there is any exculpatory value such as physical evidence, the District Attorney's Office is under the obligation to provide that even if I don't request it." (Italics added.)

The court deferred ruling on the defense objections until Dr. Whitmore completed his rebuttal testimony so the parties could further question him about the tissue.

Defense counsel asked the court to conduct an evidentiary hearing about the conversations that occurred between the district attorney and coroner's office, regarding the existence of the stock tissue and communications about Dr. Omalu's opinions. Counsel noted that during Dr. Omalu's testimony, the prosecutor asked whether he had contacted the coroner's officer about the existence of tissue. Counsel stated she had previously tried to contact Dr. Whitmore, but he failed to respond.

The prosecutor replied that she completely complied with discovery.

The court acknowledged it had discussed possible discovery issues the previous day, but noted that Dr. Whitmore had not changed his opinion. If there had been "some significant finding" to change his opinion, then the prosecutor would have to disclose that to the defense.

Defense counsel again asked the court to order disclosure of any rebuttal evidence not previously provided in discovery: "I have no idea, and I don't want it to be a surprise like the tissues." The prosecutor replied: "I would say the first time that stock tissue has ever come up in this case was through [the defense] expert."

The court asked if there was a reference in the report to stock tissue, and the prosecutor said no.

The court ordered the parties to continue with Dr. Whitmore's rebuttal testimony.

Postrebuttal evidentiary hearing

After Dr. Whitmore concluded his rebuttal testimony, the court excused the jury and conducted an evidentiary hearing at defense counsel's request about Dr. Whitmore's disclosure to the prosecutor about the stock issue.

At the evidentiary hearing, Dr. Whitmore testified that he may have taken tissue from the base of the brain, and it was possible that the source of the bleeding could have been in those portions.

Dr. Whitmore testified he became aware that stock tissue was an issue when he received an e-mail from the district attorney at 8:30 a.m. the previous day (January 13, 2015). He initiated a search for the stock jar. In the afternoon, an assistant informed him they had the stock jar. Dr. Whitmore believed he informed the district attorney about the presence of the stock jar the previous day (January 13, 2015).²⁴

24 Dr. Omalu testified on January 12 and 13, 2015. He completed his testimony on the morning of January 13, 2015, after which the prosecutor asked the court for a one-day continuance to call Dr. Whitmore in rebuttal. Dr. Whitmore appeared on January 14, 2015, for rebuttal.

DEFENDANT'S BRADY MOTIONS

On the morning of January 15, 2015, prior to instructions and closing arguments, defense counsel made several motions based on the belated disclosure about the existence of stock tissue of Maria's brain. Defendant moved to dismiss the case because of the Brady violation. In the alternative, defendant moved for a continuance to examine the tissue, or for an instruction to the jury about the prosecution's Brady violation.

Motion to dismiss

First, defense counsel moved for dismissal of the case with prejudice because the prosecution violated Brady and committed "outrageous" conduct by misleading the defense and failing to disclose the existence of brain tissue. Counsel reminded the court that she filed pretrial motions for discovery, but the reports that were provided did not disclose the existence of any tissue or slides. Counsel even contacted the sheriff's department and the coroner's office to find out if "there were any slides," and did not receive anything. Prior to trial, the prosecutor received the report from the first defense expert (Dr. Bonnell), and knew what the contested defense issues were. When Dr. Whitmore initially testified, he said there were no slides or tissues taken from the brain.

Defense counsel noted that during cross-examination of Dr. Omalu, the prosecutor asked whether his opinions about the cause of death would change "if I told you, there are tissues." At that point, defense counsel said she "had a feeling that [the prosecutor] had probably had information that there were tissues at that point, but she failed to disclose it." Counsel reminded the court that prior to Dr. Whitmore's appearance on rebuttal, the defense requested the prosecutor to provide any additional discovery before he testified, but the prosecutor failed to do so.

Defense counsel said that Dr. Whitmore's disclosure during rebuttal occurred after the defense had "lost" the expert, and counsel had not been able to question Dr. Omalu about the existence of stock tissue. Counsel argued that Dr. Whitmore initially testified that slides were not relevant, but "[i]f it's not relevant, then, why is [stock tissue] being brought up during rebuttal evidence? It's like sandbagging me[]" and violated defendant's due process rights.

Defense counsel stated that she had contacted Dr. Omalu that morning, advised him about the existence of stock tissue, and asked if he could perform any analysis to support his opinion. Dr. Omalu said "that there is a reasonable likelihood it may result in some additional findings that would support his conclusion that this was not homicide." Defense counsel did not say how long Dr. Omalu would need to perform such tests.

Defense counsel said the prosecution had hidden the evidence that "the tissues were sitting in the coroner's office, and there was testimony under oath that they never existed, and they never said anything to me which really upsets me that all along that I have been misled through this whole tissue process."

Continuance

In the alternative to dismissal, defense counsel relied on these same arguments and moved for a continuance because of the Brady violation, to allow the defense to present evidence to support the conclusion that "this is not a homicide case." Counsel argued that Dr. Whitmore conceded in rebuttal that it was "possible" the stock tissue "could show the source" of the bleeding if another expert looked at the evidence. Counsel wanted to recall the defense expert to address what could be exculpatory evidence.

Instruction

Finally, defense counsel asked the court consider giving the jury an instruction regarding the prosecutor's belated disclosure of the existence of the brain tissue, consistent with People v. Wimberly (1992) 5 Cal.App.4th 773.

The prosecutor's response

The prosecutor said she did not "take likely" the defense's accusations of misconduct, and stated that she was unaware of defense counsel's pretrial discovery requests or the content of those requests.

The court replied that defendant's pretrial discovery motions were in the file. The prosecutor reviewed the motions, and argued the defense never made "a specific request ... for any stock tissues to be provided for her expert to be able to examine them."

The prosecutor also argued the coroner's office was not part of and did not work for the district attorney, the police department, or the sheriff's department, and it was a completely different division. If the prosecutor wanted to examine stock tissue, she would have been required to file a motion for a court order. Defense counsel failed to do so, and the defense subpoenas never requested stock tissue.

The prosecutor argued defense counsel had confused stock tissue with slides, and only asked Dr. Whitmore about whether he took slides from the arteries in the Circle of Willis. Dr. Whitmore correctly answered that he did not take slides. "Stock tissue is different. That was never brought up. I actually looked at the prior expert's report and opinion [from Dr. Bonnell], and he never mentioned anything about stock tissue," or that it was "gross negligence" not to collect it. Instead, Dr. Omalu was the first witness to bring up stock tissue, and the prosecutor started to investigate whether any existed in response to his trial testimony.

The prosecutor said that Dr. Whitmore told her about the existence of stock tissue on the morning he arrived for his rebuttal testimony. The prosecutor stated that her discovery obligation began when she learned about the stock tissue, "and the discovery was made in rebuttal" when Dr. Whitmore testified about it.

Finally, the prosecutor argued the stock tissue was not material because both experts admitted that even if there was an aneurysm, the disputed question would have been why it ruptured, which depended upon "all of the other evidence" such as the bruises on Maria's face.

The prosecutor argued the court should deny the defense motion for a continuance. Even if the defense felt it needed time to test the tissue, "[i]t doesn't matter. It doesn't make any difference to this case."

Defendant's reply

Defense counsel argued that she specifically asked for pathology examinations in her pretrial discovery motions. The prosecutor received Dr. Bonnell's report in August 2014, prior to trial, and "she knew the issues, and something that had to do with the aneurysm, that has been the issue all along," even before Dr. Omalu testified.

Defense counsel said she called the coroner's office and asked for slides, and "they put me on hold and checked the report, and they said there's nothing in the report. That means there were no slides. And then we started the trial and [the prosecutor] received [the expert's] information and knew all along it was an aneurysm, and knew the issues about the brain or the tissue...."

Defense counsel asserted the prosecutor could not claim that she was not required to inquire about the existence of potentially exculpatory evidence. Counsel conceded she might have been mistaken about the difference between slides and stock tissue, but again stated that she suspected the prosecutor knew about the evidence during Dr. Omalu's cross-examination. Once the prosecutor had new information about the evidence, and knew the defense did not have it, she was required to turn it over or tell the defense "at least before my expert leaves."

Defense counsel argued the belated discovery of the stock tissue did not constitute appropriate rebuttal evidence, particularly since the prosecutor claimed that stock tissue was not relevant. "If it's not relevant, then, why are we discussing that during rebuttal?" Counsel also complained that even when the prosecutor admitted that she knew about the existence of the evidence, she still did not disclose it to the defense and instead allowed Dr. Whitmore to testify about it in rebuttal.

"In Dr. Whitmore's first testimony, I specifically asked him if he cut the brain, and apparently he didn't do it. He admitted that he didn't do it. Now, he cut it, and I guess the parts that he selected were stock tissues .... I didn't know that stock tissues were sitting somewhere in the coroner's office

"Now, based on the information I received from my expert, I have a duty to my client ... under due process of law to get this stock tissue examined for any exculpatory evidence, and that can even support my expert's conclusion that this case is not homicide."

The court's denial of defendant's Brady motions

On January 15, 2015, after hearing the parties' arguments, the court denied defendant's motion to dismiss, to continue the jury trial, or to give a jury instruction about late discovery.

The court began by reviewing the experts' discussion about the differences between histology slides and stock tissue, and how this issue had arisen:

"Number one, obviously, in the expert's language and in the coroner's ... understanding of what different things are, and we've come to learn in the course of this trial through examining the witnesses, and there's a difference between collection of stock tissue and collection of slides

which apparently if there was as Dr. Whitmore stated, and I think this is what essentially what Dr. Omalu indicated .... [¶] Dr. Omalu indicated that you select the stock tissue for purposes effectively as you would slides for doing some further examination if somebody deemed it was necessary to do so, but obviously there's a distinction.

"Obviously, Dr. Omalu's outrage that there was no stock tissue was premised on the fact there's nothing in the autopsy report indicated there was a collection of stock tissue and there was nothing under histology whatever the word is. [A]nd [Dr. Omalu] also testified and got some information from counsel that there was no stock tissue, and that was based on what you essentially told us, and you've made the request formally, the discovery request. Apparently, phone calls to the coroner's office relative to the physical evidence as well and so Dr. Omalu's testimony was premised on the idea that there was no stock tissue which is understandable.

"[Dr. Omalu's] outrage as he pointed out, this is what you do whenever you, autopsy and that's essentially what Dr. Whitmore said, this is what you do whenever you autopsy, and it's so common even at least in Dr. Whitmore's report, he didn't feel the need to collect stock tissue, but it's something that both doctors have said is done in every autopsy, you collect stock tissue, and it's preserved if somebody wants to look at it in the future."

The court next found that defense counsel filed extensive pretrial discovery motions but used the wrong terminology, there was no evidence the prosecutor intentionally withheld disclosure of the evidence, and Dr. Whitmore's testimony was proper rebuttal evidence:

"I don't have any reason to believe ... that this is a situation where [the prosecutor] is saying, you know, [defense counsel is] only asking for slides, she's only asking for histology and she hasn't asked anything about stock tissue, so I'm not going to give her a stock tissue that I know is there.... I don't see that at all.... This is simply a normal discovery. The language - the words, the request for reports and the request for slides [and] reports of pathology examination, these type of things are normal and appropriate, and it's certainly a very extensive discovery request, so I think you [referring to defense counsel] made the correct request.

"The issue is ... there's a difference between apparently what [defense counsel] asked for and stock tissue which is different. [I]t was never analyzed to fall ... into any of the classifications. I don't think

anybody - I think everybody assumed everybody knew what everybody was talking about based on what I have heard so far - was intending to deceive, because of the difference in what these things are. It just never came to be known.

"Although, arguably, it should have been recognized. There was stock tissue, but apparently it's in every case, and that's why Dr. Omalu was outraged, but there was stock tissue, and I don't have any reason to believe that [the prosecutor] knew there was stock tissue or everyone knew it was an issue, the absence of it, until [defense counsel] got to your doctor's report, at least I guess, he made some mention, and when he testified about it, then, [the prosecutor] did undergo an investigation, and they contacted her doctor and said, look, this is what this doctor is saying, and he's saying you did bad, because you didn't do this ... and apparently, they touched on the issue of stock tissue, and he said he would check. He checked as they do. He does it in every case. That's his common practice. He checked and he came in in a couple of minutes, and as he walked up to the stand, he told [the prosecutor], we do have the stock tissues which is what you learned about within a few minutes of his testifying, so the issue is - one issue is simply not telling you before he took the stand, does that constitute some sort of discovery violation?

"And I really don't think it does under the circumstances, and it is proper rebuttal evidence, and I don't have any reason to believe that [the prosecutor] withheld purposefully anything from the defense. I think there's a misunderstanding fortunately [sic] to the terms that were used and that misunderstanding is essentially before the jury. The jury - these experts, particularly Dr. Whitmore was asked, in effect, is there anything in your report that indicates you [kept] stock tissue. No. I think he said, no, but he would do it in every case, so - and then [defense counsel] asked some questions about you contacting the coroner's office or contacting him or whatever it was, so I mean - it appears to the - at least to the Court, and I'm assuming perhaps to the jury, it first became known that there was stock tissue when Dr. Whitmore came in that morning and told everybody, I did check. There is stock tissue, so it appears the jury would recognize that nobody was aware of that until the doctor said it, and the reason it is - it's so common. That's the implication. I simply don't put it in the reports, and I didn't put it in this red light and do anything analysis of any slides, and I didn't feel there was a need to do so.

"I don't see any deception of what was produced, and I don't see any deception, any intentional withholding of evidence, and I don't see this couple of minutes or so when [the prosecutor] before [Dr. Whitmore] took

the stand, and before he learned there was stock tissue of being a discovery violation. Obviously, [the prosecutor] could have said we do have stock tissue, and we would have ended up exactly where we were, and we had a side bar conference and we discussed it and I came back and let [the prosecutor] ask questions. My ruling would have been the same whether [the prosecutor] told you about it before [Dr. Whitmore] took the stand or after he testified to it on the stand, and I would have allowed him to testify to that, because I think it's proper rebuttal, and he had an explanation includ[ing] why someone wouldn't think there was stock tissue, so I think that's all before the jury, so I don't really see any deception here."²⁵

25 As we will discuss in issues I and III, post, the accuracy of defense counsel's pretrial discovery requests, and the prosecution's good or bad faith, is not relevant to a Brady analysis. Brady held "that the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." (Brady, supra, 373 U.S. at p. 87.) The prosecution is obligated to disclose favorable and material evidence "whether the defendant makes a specific request [citation], a general request, or none at all [citation]." (Brown, supra, 17 Cal.4th at p. 879.) "The duty to disclose 'exists even though there has been no request by the accused.' [Citations.]" (People v. Superior Court (Johnson) (2015) 61 Cal.4th 696, 709.)

The court next found the defense did not suffer any prejudice from the belated disclosure because the People still had the burden of proof:

"Now, the fact that nobody analyzed the stock tissue ... I guess [the defense] could have arguably analyzed the stock tissue. I don't know what that would have produced. It appears based on the evidence before the Court, it would have been an extremely long shot that he would have actually - in the section that he took of the brain somehow captured the one place, you know, where the bleed was which he did look for and was never able to find it seems like he would have seen that, but bleeding is on the vessels outside .... I really have a hard time believing it somehow - I appreciate he said it's possible, but it seems such a long shot that there wouldn't be anything relative to the actual location of the bleed in the sections that he took that I'm not sure of what it would have resulted in.

"The bottom line is this, [the defense] does not have the burden of proof if there's some issue with the fact that nobody tested those sections of the brain, that falls on the People. The People have the burden to prove what the cause of death was that it was blunt force trauma that resulted in

subarachonoid hemorrhaging that caused her death. That burden is on the People. If the jury is concerned that nobody checked those sections, if they feel based on what the evidence is somehow, that is an issue, and that issue falls on the People, not on the defense." (Italics added.)²⁶

26 As we will also explain, prejudice in the context of a Brady objection "focuses on 'the materiality of the evidence to the issue of guilt and innocence.' [Citations.] Materiality, in turn, requires more than a showing that the suppressed evidence would have been admissible [citation], that the absence of the suppressed evidence made conviction 'more likely' [citation], or that using the suppressed evidence to discredit a witness's testimony 'might have changed the outcome of the trial' [citation]. A defendant instead 'must show a "reasonable probability of a different result." ' [Citation.]" (People v. Salazar (2005) 35 Cal.4th 1031, 1043 (Salazar); People v. Letner and Tobin (2010) 50 Cal.4th 99, 176 (Letner).)

The court thus denied defendant's motions to dismiss, for a continuance, and for an instruction, and suggested that defense counsel could file a motion for new trial:

"[The defense does not] have to prove he is not guilty and the People have to prove he's guilty, so I don't see any prejudice of what we discussed here. Consequently, I'm going to deny the motion to dismiss, and I'm going to deny the motion to continue, and I'm going to deny the special instruction request. It deals with the destruction of evidence and there's no evidence that it's been destroyed inadvertently ... and I don't see it as that type of a situation that would warrant a dismissal or continuance. I don't see any prejudice to the defense and I don't think there's good cause to continue the case at this time.

"If your client is convicted, and you want to run some tests, and it comes back there's some conclusive evidence it wasn't what the doctor says it was, that might be some basis for a motion, for a new trial. I don't know. But at this point, I don't see a basis for a good cause to continue the case. I don't see any prejudice to the defense. As I indicated, the burden of proof is on the People." (Italics added.)

Verdict

On January 16, 2015, the parties gave closing arguments and the jury was instructed.

On January 20, 2015, the jury found defendant not guilty of first degree murder, and guilty of the lesser included offense of second degree murder.

Defendant's new trial motion

On February 19, 2015, defendant filed a motion for new trial based on insufficient evidence of malice to support his conviction for second degree murder, based on the conflicting testimony from Dr. Whitmore and Dr. Omalu as to whether Maria died from blunt force trauma or an unrelated aneurysm. Defendant moved to reduce his conviction to involuntary manslaughter.

The People filed opposition.

Denial of new trial motion and sentence

On March 6, 2015, the court denied defendant's motion for a new trial or to reduce his conviction. Defendant was sentenced to 15 years to life for second degree murder.

DISCUSSION

I. Brady and the Trial Court's Ruling

Defendant contends his due process right to a fair trial was violated by the prosecution's belated disclosure of the existence of stock tissue from Maria's brain, and the court should have granted his motion for terminating sanctions and ordered a mistrial because of the Brady violation. Defendant asserts that the prosecution's belated disclosure of the existence of the stock tissue violated Brady, and the evidence was favorable and material because microscopic examination of the tissue by the defense expert could have revealed an aneurysm as the source of the bleeding and refuted Dr. Whitmore's opinion that blunt force trauma was the cause of death.

The People assert there was no Brady error in this case because Dr. Whitmore was not part of the "prosecution team," the evidence was not intentionally suppressed or withheld, and the stock tissue was not favorable or material evidence.

We begin with a review of Brady and the court's ruling.

A. Brady

In Brady, supra, 373 U.S. 83, the United States Supreme Court held that "the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." (Id. at p. 87.) "The high court has since held that the duty to disclose such evidence exists even though there has been no request by the accused [citation], that the duty encompasses impeachment evidence as well as exculpatory evidence [citation], and that the duty extends even to evidence known only to police investigators and not to the prosecutor [citation]." (Salazar, supra, 35 Cal.4th at p. 1042; Letner, supra, 50 Cal.4th at p. 175; In re Bacigalupo (2012) 55 Cal.4th 312, 333, People v. Williams (2013) 58 Cal.4th 197, 255-256.

"[T]he individual prosecutor has a duty to learn of any favorable evidence known to the others acting on the government's behalf in the case, including the police. But whether the prosecutor succeeds or fails in meeting this obligation (whether, that is, a failure to disclose is in good faith or bad faith, [citation]), the prosecution's responsibility for failing to disclose known, favorable evidence rising to a material level of importance is inescapable." (Kyles v. Whitley (1995) 514 U.S. 419, 437-438 (Kyles); Strickler v. Greene (1999) 527 U.S. 263, 281 (Strickler).)

"[T]he term 'Brady violation' is sometimes used to refer to any breach of the broad obligation to disclose exculpatory evidence - that is, to any suppression of so-called 'Brady material' - although, strictly speaking, there is never a real 'Brady violation' unless the nondisclosure was so serious that there is a reasonable probability that the suppressed evidence would have produced a different verdict." (Strickler, supra, 527 U.S. at pp. 281-282, fn. omitted; Salazar, supra, 35 Cal.4th at p. 1042; Letner, supra, 50 Cal.4th at p. 176.)

"There are three components of a true Brady violation: The evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; that evidence must have been suppressed by the State, either willfully or inadvertently; and prejudice must have ensued." (Strickler, supra, 527 U.S. 263 at pp. 281-282; Salazar, supra, 35 Cal.4th at p. 1043; Letner, supra, 50 Cal.4th at pp. 175-176; People v. Masters (2016) 62 Cal.4th 1019, 1067 (Masters).)

"Although Brady disclosure issues may arise in advance of, during, or after trial, the test is always the same. [Citation.]" (People v. Jordan (2003) 108 Cal.App.4th 349, 359.) The suppression of material evidence in violation of Brady violates a defendant's constitutional right to due process. (Brady, supra, 373 U.S. at p. 87; Strickler, supra, 527 U.S. at p. 280.) When material evidence is suppressed, the defendant's due process rights are violated "irrespective of the good faith or bad faith of the prosecution" (Brady, supra, 373 U.S. at p. 87), and "regardless of whether it was intentional, negligent, or inadvertent. [Citations.]" (In re Sodersten (2007) 146 Cal.App.4th 1163, 1225.)

The determination that the prosecution improperly withheld material evidence requires reversal without further harmless error analysis. (Kyles, supra, 514 U.S. at p. 435; People v. Zambrano (2007) 41 Cal.4th 1082, 1133 (Zambrano), disapproved on other grounds in People v Doolin (2009) 45 Cal.4th 390, 421, fn. 22; People v. Williams, supra, 58 Cal.4th at p. 256.)

"We independently review the question whether a Brady violation has occurred, but give great weight to any trial court findings of fact that are supported by substantial evidence. [Citation.]" (Letner, supra, 50 Cal.4th at p. 176.)

B. The Court's Ruling

We must begin with the court's denial of defendant's Brady objections that were made in response to Dr. Whitmore's rebuttal testimony. We have quoted those findings above, and are compelled to observe that the court failed to address the relevant factors to evaluate a Brady objection.

The court found that the prosecutor's failure to disclose the existence of the stock tissue was inadvertent. As we will explain, the prosecutor's good or bad faith is not pertinent to a potential Brady error.

The court appeared to acknowledge the stock tissue might be favorable, but denied defendant's Brady objections because it found the defense did not suffer any prejudice since the People still had the burden of proving beyond a reasonable doubt that defendant murdered Maria. As we will also explain, the critical factors for a Brady analysis are whether the "suppressed" evidence was "favorable" and, most importantly, "material." The court's findings about the People's burden failed to expressly address materiality.

In any event, "[i]t is axiomatic that we review the trial court's rulings and not its reasoning. [Citations.]" (People v. Mason (1991) 52 Cal.3d 909, 944.) We will thus review the relevant factors to determine whether the court properly denied defendant's Brady objections.

II. Belated Disclosure of Evidence During Trial

As a preliminary issue, we note that the existence of the stock tissue was actually disclosed during trial. "[E]vidence that is presented at trial is not considered suppressed, regardless of whether or not it had previously been disclosed during discovery. [Citations.]" (People v. Morrison (2004) 34 Cal.4th 698, 715.) However, defendant argues the prosecution's belated disclosure of this evidence during Dr. Whitmore's rebuttal testimony, and the court's denial of his motion for a continuance, still constituted a Brady violation because defendant did not have any time to examine the tissue or recall the defense expert to address this evidence and the potential impact on the experts' conclusions about the cause of death.

"Our Supreme Court has observed that 'evidence that is presented at trial is not considered suppressed, regardless of whether or not it had previously been disclosed during discovery. [Citations.]' [Citation.] It would seem necessarily to follow that information disclosed in advance of trial is not considered suppressed, even assuming it should have been given to the defense earlier. On the other hand, we recognize that '[d]isclosure, to escape the Brady sanction, must be made at a time when the disclosure would be of value to the accused. [Citation.]' [Citation.]" (People v. Superior Court (Meraz) (2008) 163 Cal.App.4th 28, 51, italics added.)

It has thus been recognized that a belated disclosure of potential material evidence does not violate Brady if that disclosure occurred during trial, and defense counsel had adequate opportunity to address the issue. For example, in United States v. Alberico (10th Cir.1979) 604 F.2d 1315, the government failed to disclose prior to trial the actual identity of a witness. However, the defense learned his identity in time to present evidence of his identity to the jury, and the court held there was no Brady error. (United States v. Alberico, supra, at pp. 1318-1319; see also United States v. Vgeri (9th Cir.1995) 51 F.3d 876, 880 [no violation where evidence disclosed during trial]; United States v. Span (9th Cir.1992) 970 F.2d 573, 583 [no violation where defense counsel given opportunity for further cross-examination]; United States v. Devin (1st Cir.1990) 918 F.2d 280, 290 [delayed disclosure of witness's psychiatric record did not preclude effective cross-examination, because the information was revealed in time to be used]; People v. Jenkins (2000) 22 Cal.4th 900, 951 [where prosecution did not disclose exculpatory evidence prior to preliminary hearing, but did so before the trial, the delay in disclosure did not implicate appellant's due process right to be informed of material evidence favorable to the accused; he was informed of the evidence and had ample time to investigate before trial]; People v. Lucas (2014) 60 Cal.4th 153, 274, disapproved on other grounds in People v. Romero and Self (2015) 62 Cal.4th 1, 53, fn. 19 [defense counsel called additional witnesses to respond to late-disclosure of evidence].)

In contrast, "[w]hen the issue is one of delayed disclosure rather than total nondisclosure, however, the applicable test is whether defense counsel was 'prevented by the delay from using the disclosed material effectively in preparing and presenting the defendant's case.' [Citations.]" (United States v. Devin, supra, 918 F.2d at p. 289.) In cases of late disclosure, this determination must be made based on a consideration of whether the evidence was revealed "in time for the defense to take advantage of it [citation] ...." (United States v. Almendares (8th Cir. 2005) 397 F.3d 653, 663, fn. 3.)

In United States v. Howell (9th Cir. 2000) 231 F.3d 615, the government knew two police reports disclosed to the defense falsely stated that certain money was found on a codefendant instead of on the defendant, and the defense relied on those reports "to construct its theory" that the codefendant was responsible. (Id. at p. 623.) The prosecutor learned about the errors prior to trial but did not inform the defense. The defense did not learn about the errors until officers testified and explained the police reports were erroneous. The trial court denied the defendant's motion to dismiss based on the alleged Brady error. (United States v. Howell, supra, at pp. 623-624.) On appeal, the defendant argued the prosecutor's failure to disclose the errors prior to trial violated Brady, while the government argued it had not withheld exculpatory information, because the corrected information showed the defendant possessed the money. Howell rejected the government's argument: "That the information withheld may seem inculpatory on its face in no way eliminates or diminishes the government's duty to disclose evidence of a flawed police investigation. [Citation.] Furthermore, the mistakes constituted textbook examples of impeachment evidence as to where the officers found the money." (Id. at p. 625; see, e.g., Bagley v. Lumpkin (9th Cir. 1986) 798 F.2d 1297, 1302 [suppression of contracts reflecting inducements to prosecution witnesses "interfered with Bagley's right to a fair trial"].)

A. Analysis

In this case, Dr. Whitmore disclosed the existence of the stock tissue during trial, but it occurred during his rebuttal testimony and on the last day that evidence was introduced. While defense counsel was able to cross-examine Dr. Whitmore about his previous failure to disclose this evidence, the late disclosure prevented the defense from effectively using the evidence in preparing and presenting the case and, more importantly, prevented the defense expert from examining the evidence to attempt to refute Dr. Whitmore's conclusions about the cause of death. Thus, the late disclosure about the existence of the stock tissue raised a potential Brady violation, even though the evidence was introduced at trial.

III. "Suppression" by the "Prosecution Team"

We now turn to the three elements required to find a Brady violation, and begin with the requirement that the evidence must have been "suppressed" by the government. (Strickler, supra, 527 U.S. at p. 282; Salazar, supra, 35 Cal.4th at p. 1048.)

A. "Suppression"

While Brady uses the term "suppression" (Brady, supra, 373 U.S. at p. 87), subsequent cases have explained that "[t]he prosecution need not affirmatively suppress evidence favorable to the defense in order for there to be 'suppression' under Brady." (People v. Uribe (2008) 162 Cal.App.4th 1457, 1475, italics added (Uribe).)

The prosecution is obligated to disclose favorable and material evidence "whether the defendant makes a specific request [citation], a general request, or none at all [citation]." (Brown, supra, 17 Cal.4th at p. 879.) "The duty to disclose 'exists even though there has been no request by the accused.' [Citations.]" (People v. Superior Court (Johnson), supra, 61 Cal.4th at p. 709.) The prosecution's duty of disclosure under Brady is ongoing, and continues "throughout the duration of the trial and even after conviction. [Citations.]" (People v. Kasim, supra, 56 Cal.App.4th at p. 1383.)

B. "The Prosecution Team"

"Nor does the evidence necessarily have to be in the direct possession of the prosecution" to be "suppressed" within the meaning of Brady. (Uribe, supra, 162 Cal.App.4th at p. 1475.) "The scope of [the prosecution's] disclosure obligation extends beyond the contents of the prosecutor's case file and encompasses the duty to ascertain as well as divulge 'any favorable evidence known to the others acting on the government's behalf ....' [Citation.]" (Brown, supra, 17 Cal.4th at p. 879; People v. Williams, supra, 58 Cal.4th at p. 256.)

"A prosecutor's duty under Brady to disclose material exculpatory evidence applies to evidence the prosecutor, or the prosecution team, knowingly possesses or has the right to possess. The prosecution team includes both investigative and prosecutorial agencies and personnel. [Citations.] The prosecution must disclose evidence that is actually or constructively in its possession or accessible to it. [Citation.] The important determination is whether the person or agency has been 'acting on the government's behalf' [citation] or 'assisting the government's case' [citation]." (People v. Jordan (2003) 108 Cal.App.4th 349, 358; People v. Superior Court (Barrett) (2000) 80 Cal.App.4th 1305, 1315; Strickler, supra, 527 U.S. at p. 281; Brown, supra, 17 Cal.4th at p. 879.)

"Courts have thus consistently 'decline[d] "to draw a distinction between different agencies under the same government, focusing instead upon the 'prosecution team' which includes both investigative and prosecutorial personnel." ' [Citation.] 'A contrary holding would enable the prosecutor "to avoid disclosure of evidence by the simple expedient of leaving relevant evidence to repose in the hands of another agency while utilizing his access to it in preparing his case for trial," [citation].' [Citations.] Thus, 'whether the nondisclosure was a result of negligence or design, it is the responsibility of the prosecutor. The prosecutor's office is an entity and as such it is the spokesman for the Government.' [Citations.]" (Brown, supra, 17 Cal.4th at p. 879, fn. omitted.)

"As a concomitant of this duty, any favorable evidence known to the others acting on the government's behalf is imputed to the prosecution. 'The individual prosecutor is presumed to have knowledge of all information gathered in connection with the government's investigation.' [Citations.]" (Brown, supra, 17 Cal.4th at pp. 879-880; Kyles, supra, 514 U.S. at pp. 437-438.)

"In the State's favor it may be said that no one doubts that police investigators sometimes fail to inform a prosecutor of all they know. But neither is there any serious doubt that 'procedures and regulations can be established to carry [the prosecutor's] burden and to insure communication of all relevant information on each case to every lawyer who deals with it.' [Citation.]" (Kyles, supra, 514 U.S. at p. 438; Brown, supra, 17 Cal.4th at p. 882.)

In contrast, "information possessed by an agency that has no connection to the investigation or prosecution of the criminal charge against the defendant is not possessed by the prosecution team, and the prosecutor does not have the duty to search for or to disclose such material." (People v. Superior Court (Barrett), supra, 80 Cal.App.4th at p. 1315; In re Steele (2004) 32 Cal.4th 682, 697.)

In addition, Brady does not provide an accused with a constitutional right to criminal discovery. (People v. Morrison (2004) 34 Cal.4th 698, 715.) "Although the prosecution may not withhold favorable and material evidence from the defense, neither does it have the duty to conduct the defendant's investigation for him. [Citation.] If the material evidence is in a defendant's possession or is available to a defendant through the exercise of due diligence, then, at least as far as evidence is concerned, the defendant has all that is necessary to ensure a fair trial, even if the prosecution is not the source of the evidence. [Citations.] Accordingly, evidence is not suppressed unless the defendant was actually unaware of it and could not have discovered it ' "by the exercise of reasonable diligence." ' [Citations.]" (Salazar, supra, 35 Cal.4th at pp. 1048-1049.)

C. Relevant Cases

A series of cases illustrate these points. In People v. Whalen (2013) 56 Cal.4th 1 (Whalen) (disapproved on other grounds in People v. Romero and Self, supra, 62 Cal.4th at p. 44, fn. 17), a homicide was investigated by the sheriff's department, and a criminalist from the Department of Justice collected evidence at the crime scene. (Whalen, supra, at pp. 13-14.) The criminalist testified for the prosecution, and he mentioned the existence of his handwritten notes and undeveloped rolls of film. Defense counsel moved for a mistrial based on Brady because he had requested all evidence about the crime scene, but the notes and film had not been disclosed. The court denied the motion. (Whalen, supra, at pp. 62-63.) In considering defendant's Brady arguments, Whalen held that the criminalist was a part of the prosecution team. "Because [the criminalist] participated in the investigation of the ... murder and was employed by an investigating agency, he was part of the prosecution team, and the prosecutor therefore had a constitutional duty to disclose exculpatory, material evidence in [the criminalist's] possession regardless whether the prosecutor was personally aware of the existence of the evidence. [Citations.]" (Whalen, supra, at p. 64.)²⁷

27 Whalen ultimately rejected defendant's Brady arguments because he failed to show the evidence was favorable or material, and defense counsel had several days to review the evidence during trial. (Whalen, supra, 56 Cal.4th at p. 64.)

In Brown, supra, 17 Cal.4th 873, the defendant asserted the then-valid defense of diminished capacity to the charge of capital murder, and claimed he was under the influence of methamphetamine. The prosecution rebutted that claim with evidence that the defendant's blood tested negative for drugs. After the trial, the defendant learned that a more sensitive test revealed the presence of PCP in his blood, and the defense had not been provided with that report during trial. The defendant filed a petition for writ of habeas corpus based on the alleged Brady violation. (Brown, supra, at pp. 876-877.) In addressing defendant's Brady contentions, Brown held that the blood test was produced by the Orange County Sheriff-Coroner, Department of Forensic Science Services, and that office was part of the prosecution team. (Brown, supra, at p. 877.) "At the reference hearing, [the chief criminalist] acknowledged the lab 'worked closely with the District Attorney's Office in assisting it in the prosecution of cases'; and there is no serious dispute that in these circumstances it was part of the investigative 'team.' The prosecutor thus had the obligation to determine if the lab's files contained any exculpatory evidence, such as the worksheet, and disclose it to [defendant]. Whether or not he actually did examine the files, the lab personnel's knowledge is imputed." (Brown, supra, at p. 880.)

In Uribe, supra, 162 Cal.App.4th 1457, the defendant was convicted of sexually assaulting a child. At trial, a physician's assistant testified about her findings when she conducted a medical examination of the victim as part of the Sexual Assault Response Team (SART). After the trial, defense counsel learned that a videotape existed that showed the SART examination of the victim. The defendant filed a motion for new trial based on the alleged Brady violation. (Uribe, supra, at p. 1463.) As a preliminary matter, Uribe relied on Brown and held the SART examiner was working on the government's behalf:

"We reject any suggestion that the SART exam here was not investigative. It was clearly spearheaded by the police, who advised [the physician's assistant] of a report of alleged sexual abuse in which [the child] was the victim. A major purpose of the examination was to determine whether the allegation could be corroborated with physical findings. [The physician's assistant] collected and preserved physical evidence, consistent with statutory protocol. [Citations.] And according to her practice - after completion of the SART examination and after she and [the supervising physician] reach concurrence as to their findings as contained in the written report ...." (Uribe, supra, 162 Cal.App.4th at p. 1479.)

A contrary conclusion was reached in Zambrano, supra, 41 Cal.4th 1082, where the defense discovered during trial that the defendant's sister sent letters to the sheriff's department when the defendant was housed in the county jail. The defendant moved for a mistrial based on a Brady violation, and claimed the letters might have supported an insanity plea. (Zambrano, supra, at p. 1131.) Zambrano held the defendant's Brady motion was properly denied because the letters were not favorable or material. Zambrano further held that the prosecution's duty of disclosure did not extend to the sheriff's department because "the record does not show the sheriff's office was an agency subject to the statutory or constitutional duty of disclosure. So far as appears, the sheriff was only defendant's jailer, and was not involved in the investigation or prosecution of the charges against him." (Zambrano, supra, at p. 1133.)

D. Analysis

On appeal, the People assert Dr. Whitmore, as a member of the coroner's office, was not part of the "prosecution team" because the investigative duties of the coroner are separate and distinct from the sheriff's department and other law enforcement agencies, and are not performed on the prosecution's behalf.

To the contrary, we find that Dr. Whitmore was part of the prosecution team for purposes of Brady, based on the facts of this case. As in Brown, Uribe, and Whalen, Dr. Whitmore was employed by an investigating agency and participated in the investigation of the homicide. Dr. Whitmore testified he was a contract employee and had a full time, salaried position with the Kern County Sheriff's Department. The sheriff's department was also the coroner for Kern County. His primary duties as a medical examiner were to "do autopsies and external examinations to determine the cause and manner of death." Detective Garcia and another detective were present during the autopsy.

Dr. Whitmore testified he worked with the district attorney's office on a regular basis to prepare for trial. He usually met with the deputy district attorney before a homicide trial, and reviewed any reports from the defense. In this case, he talked with the prosecutor before his first trial appearance, and again met with the prosecutor when she received Dr. Omalu's report.

We further find that the failure to previously disclose the existence of the stock tissue constituted "suppression" within the meaning of Brady. There was obviously some confusion between the parties during discovery about the significance of terms such as "slides," "histology," and "stock tissue" from the brain. We agree with the trial court that defense counsel's discovery requests may not have used the precise technical phrase for "stock tissue", and there was no evidence the prosecution intentionally "suppressed" or failed to disclose the existence of the stock tissue.²⁸

28 The court made a factual finding that the prosecutor did not learn about the existence of the stock tissue until either a few hours before, or immediately before Dr. Whitmore's rebuttal testimony, which occurred on January 14, 2015. We note, however, that on January 12, 2014, the prosecutor asked Dr. Omalu on cross-examination whether it would "change your opinion if there was stock tissue taken in this case."

Nevertheless, the prosecution is obligated to disclose favorable and material evidence "whether the defendant makes a specific request [citation], a general request, or none at all [citation]." (Brown, supra, 17 Cal.4th at p. 879; People v. Superior Court (Johnson), supra, 61 Cal.4th at p. 709.) In addition, the prosecution's duty of disclosure under Brady is ongoing, and continues "throughout the duration of the trial and even after conviction. [Citations.]" (People v. Kasim, supra, 56 Cal.App.4th at p. 1383-1384.)

Thus, the sufficiency of defense counsel's pretrial discovery motions was not dispositive to the determination of whether the prosecution had the duty to disclose the existence of this evidence, and the ultimate determination of whether the evidence was favorable and material.²⁹ Dr. Whitmore was part of the prosecution team, and the failure to disclose the existence of the stock tissue constituted "suppression" within the meaning of Brady, regardless of whether that failure resulted from good or bad faith.

29 For these reasons, we find no need to address one of defendant's many alternate contentions in this appeal, that if defense counsel's pretrial discovery motions failed to preserve the Brady issue in this case because the motions failed to specifically request the existence of "stock tissue" instead of histology slides, then counsel was prejudicially ineffective for failing to properly conduct discovery.

IV. Favorable Evidence

The next element of a Brady claim is that the "suppressed" evidence must be "favorable" to the accused. (Strickler, supra, 527 U.S. at pp. 281-282; Salazar, supra, 35 Cal.4th at p. 1047.)

"For Brady purposes, evidence is favorable if it helps the defense or hurts the prosecution, as by impeaching a prosecution witness. [Citations.]" (Zambrano, supra, 41 Cal.4th at p. 1132, People v. Williams, supra, 58 Cal.4th at p. 256.) "[E]vidence tending to impeach the credibility of a prosecution witness may be deemed favorable to the defense under Brady. [Citation.]" (People v. Ashraf (2007) 151 Cal.App.4th 1205, 1214; United States v. Bagley (1985) 473 U.S. 667, 676; Salazar, supra, 35 Cal.4th at p. 1048.)

A. Analysis

As we have explained, the belated disclosure of favorable and material evidence may constitute a Brady violation if "defense counsel was 'prevented by the delay from using the disclosed material effectively in preparing and presenting the defendant's case.' [Citations.]" (United States v. Devin (1st Cir.1990) 918 F.2d 280, 289.) In cases of late disclosure, this determination must be made based on a consideration of whether the evidence was revealed "in time for the defense to take advantage of it [citation] ...." (United States v. Almendares, supra, 397 F.3d at p. 663, fn. 3.)

At the very least, the existence of the stock tissue was favorable to the defense to impeach Dr. Whitmore's testimony. In his initial testimony for the prosecution, Dr. Whitmore testified that Maria died because of subarachnoid hemorrhaging caused by blunt force trauma to the head. As set forth in the factual statement, defense counsel extensively questioned Dr. Whitmore about whether he examined the brain for a possible aneurysm and if he kept tissue samples. Dr. Whitmore testified he did not save any arteries for future examination, conduct any microscopic examinations of the arteries or vessels in the brain to look for the source of the bleeding, he did not "fix" the brain in formalin, and he did not cut any part of the brain and place them on slides for microscopic examination to look for an aneurysm or the source of the bleeding. He explained that he did not think any of these options were necessary and it would have been like "looking for a needle in a haystack."

On redirect examination, the prosecutor returned to the topic about whether he should have saved samples from the brain. Dr. Whitmore testified he did not save any arteries because "I didn't find anything, so what am I saving?"

Also as discussed above, Dr. Omalu criticized Dr. Whitmore's performance of the autopsy, particularly his failure to conduct microscopic examination and retain stock tissue from the brain. In response, Dr. Whitmore testified on rebuttal and disclosed for the first time that he kept some stock tissue from Maria's brain. Defense counsel had the opportunity to cross-examine Dr. Whitmore to undermine this rebuttal evidence. By the time of the rebuttal testimony, however, defense counsel stated the defense expert was no longer available to either examine or respond to Dr. Whitmore's sudden disclosure that he kept stock tissue.

The existence of stock tissue was potentially favorable to the defense if it had been timely disclosed for the defense expert to examine and determine whether there was any evidence of an aneurysm, to potentially support the defense theory and undermine Dr. Whitmore's conclusions about blunt force trauma.

Based on the record before this court, we find the existence of the stock tissue was potentially favorable to the defense. As we will explain, however, there are serious questions as to whether the evidence was favorable and material, as required by Brady, so that the court should have granted defendant's motion for a mistrial.

V. Materiality

The final and most important element of a Brady claim is that the suppressed evidence must be material, since "not every nondisclosure of favorable evidence denies due process." (Brown, supra, 17 Cal.4th at p. 884; Salazar, supra, 35 Cal.4th at p. 1049.)

Defendant has the burden of showing materiality. (People v. Hoyos (2007) 41 Cal.4th 872, 918, abrogated on other grounds by People v. McKinnon (2011) 52 Cal.4th 610, 637-643.)

A. Materiality and Prejudice

"[A] showing of the favorableness and materiality of undisclosed evidence 'necessarily establishes at one stroke what in other contexts are separately considered under the rubrics of "error" and "prejudice." For, here, there is no "error" unless there is also "prejudice." [Citations.]' [Citations.]" (People v. Superior Court (Meraz), supra, 163 Cal.App.4th at p. 53.)

"Prejudice, in this context, focuses on 'the materiality of the evidence to the issue of guilt and innocence.' [Citations.] Materiality, in turn, requires more than a showing that the suppressed evidence would have been admissible [citation], that the absence of the suppressed evidence made conviction 'more likely' [citation], or that using the suppressed evidence to discredit a witness's testimony 'might have changed the outcome of the trial' [citation]. A defendant instead 'must show a "reasonable probability of a different result." ' [Citation.]" (Salazar, supra, 35 Cal.4th at p. 1043; Letner, supra, 50 Cal.4th at p. 176; Masters, supra, 62 Cal.4th at p. 1067.)

" ' "The mere possibility that an item of undisclosed information might have helped the defense, or might have affected the outcome of the trial, does not establish 'materiality' in the constitutional sense." [Citation.]' [Citation.]" (People v. Superior Court (Meraz), supra, 163 Cal.App.4th at p. 52.)

In Kyles, the United States Supreme Court identified four aspects to the materiality (i.e., prejudice) component of a Brady violation. (Kyles, supra, 514 U.S. at pp. 434-437; Brown, supra, 17 Cal.4th 873, 886-887; Uribe, supra, 162 Cal.App.4th at pp. 1472-1473.)

First, "[a]lthough the constitutional duty is triggered by the potential impact of favorable but undisclosed evidence, a showing of materiality does not require demonstration by a preponderance that disclosure of the suppressed evidence would have resulted ultimately in the defendant's acquittal (whether based on the presence of reasonable doubt or acceptance of an explanation for the crime that does not inculpate the defendant). [Citations.] [The] touchstone of materiality is a 'reasonable probability' of a different result, and the adjective is important. The question is not whether the defendant would more likely than not have received a different verdict with the evidence, but whether in its absence he received a fair trial, understood as a trial resulting in a verdict worthy of confidence. A 'reasonable probability' of a different result is accordingly shown when the government's evidentiary suppression 'undermines confidence in the outcome of the trial.' [Citation.]" (Kyles, supra, 514 U.S. at p. 434, italics added.)

Second, materiality "is not a sufficiency of evidence test. A defendant need not demonstrate that after discounting the inculpatory evidence in light of the undisclosed evidence, there would not have been enough left to convict. The possibility of an acquittal on a criminal charge does not imply an insufficient evidentiary basis to convict. One does not show a Brady violation by demonstrating that some of the inculpatory evidence should have been excluded, but by showing that the favorable evidence could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict." (Kyles, supra, 514 U.S. at pp. 434-435, fn. omitted.)

Third, once a reviewing court has found constitutional error under Brady, "there is no need for further harmless-error review. Assuming, arguendo, that a harmless-error enquiry were to apply, [the] error could not be treated as harmless, since 'a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different,' [citation] necessarily entails the conclusion that the suppression must have had ' "substantial and injurious effect or influence in determining the jury's verdict ...." ' [citations]." (Kyles, supra, 514 U.S. at p. 435.)

Fourth, "while the tendency and force of undisclosed evidence is evaluated item by item, its cumulative effect for purposes of materiality must be considered collectively. [Citations.]." (Brown, supra, 17 Cal.4th at p. 887, citing Kyles, supra, 514 U.S. at pp. 436-437.) In determining whether evidence is material under this standard, we consider " 'the effect of the nondisclosure on defense investigations and trial strategies.' " (People v. Verdugo (2010) 50 Cal.4th 263, 279; People v. Williams (2013) 58 Cal.4th 197, 256.)

Thus, a relevant consideration is that " 'an incomplete response to a specific [Brady] request not only deprives the defense of certain evidence, but also has the effect of representing to the defense that the evidence does not exist. In reliance on this misleading representation, the defense might abandon lines of independent investigation, defenses, or trial strategies that it otherwise would have pursued.' [Citation.] Given this possibility, 'under the ["reasonable probability"] formulation the reviewing court may consider directly any adverse effect that the prosecutor's failure to respond might have had on the preparation or presentation of the defendant's case. The reviewing court should assess the possibility that such effect might have occurred in light of the totality of the circumstances and with an awareness of the difficulty of reconstructing in a post-trial proceeding the course that the defense and the trial would have taken had the defense not been misled by the prosecutor's incomplete response.' [Citations.]" (Brown, supra, 17 Cal.4th at p. 887.)

"In the case of impeachment evidence, materiality requires more than a showing that 'using the suppressed evidence to discredit a witness's testimony "might have changed the outcome of the trial" [citation].' [Citation.] Rather, the evidence will be held to be material 'only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.' [Citation.]" (People v. Lucas, supra, 60 Cal.4th at p. 274, italics added in original, disapproved on other grounds in People v. Romero and Self, supra, 62 Cal.4th at p. 53, fn. 19.)

B. Relevant Cases

As with the issue of "suppression," a series of cases further illustrate materiality under Brady. As discussed above, in Whalen, supra, 56 Cal.4th 1, the defense claimed a Brady violation based on the belated disclosure that the criminalist had notes and undeveloped photographs from the crime scene. Whalen held the criminalist was a member of the prosecution team, but concluded the defendant had not "met his burden on appeal to affirmatively show that the belatedly disclosed evidence was either exculpatory or material. [Citation.] We cannot ourselves make that determination, because the notes and photographs were not filed or lodged with the trial court and are not part of the record on appeal. [Citation.]" (Whalen, supra, at p. 64.) The defendant failed to identify any particular evidence he was unable to develop without access to the criminalist's notes, and it was "speculative at best" to conclude that the undeveloped films could have been used to connect certain evidence to the scene. (Id. at p. 65.)

In Brown, the court held the defendant's blood was tested by a member of the prosecution team and court found a Brady violation based on the nondisclosure of material evidence. A portion of the toxicology results of tests on his blood showed a radioactive immunoassay (RIA) that was positive for phencyclidine (PCP), where other results presented at trial (gas chromatography mass spectrometry [GC/MS] ) were negative for PCP. (Brown, supra, 17 Cal.4th at p. 877.) Brown found the nondisclosed evidence was material based on the "pivotal fact" that the defendant had relied on a diminished capacity defense to show he lacked the ability to premeditate. The positive RIA test would have supported that defense and constituted "independent scientific evidence" of drugs in the defendant's blood at the time of the crime, and "enhanced the credibility of other defense evidence" on that issue. (Id. at p. 889.) Brown further held that materiality did not require the defendant to show that his defense "would have ultimately succeeded," but the nondisclosed evidence prevented the defendant "from presenting a credible defense of diminished capacity, thereby denying him a fair trial." (Id. at pp. 890-891.)

In Uribe, supra, 162 Cal.App.4th 1457, defense counsel learned after the defendant's trial that a videotape existed that showed the SART examination of the victim. Uribe held that the physician's assistant was a member of the prosecution team, and the videotape was material within the meaning of Brady:

"Here, evaluating the potential impact of the omitted SART video in light of the entire record, our confidence in the outcome of the trial has been undermined by the suppression of this evidence by the prosecution. This determination is largely based upon the relative weakness (sans medical

evidence) of the prosecution's case, coupled with the unfairness to defendant in his being required to respond to medical testimony with limited and inferior photos when far superior and numerous photographic evidence in the form of the SART video should have been made available to him." (Uribe, supra, at p. 1482.)

Zambrano addressed the potential materiality of a letter that the defendant's sister sent to the sheriff's department, based on the defendant's claim that the letter would have supported an insanity defense if it had been disclosed prior to trial. In addition to finding the sheriff's department was not part of the prosecution team given the circumstances of the case, Zambrano rejected the defendant's argument that the letter was material and a possible mental defense had been foreclosed:

"[N]othing in the letter to the deputy was remotely favorable or material to the defense. Defendant does not seriously argue otherwise. The letter did not allude to defendant's mental condition; it simply represented that he is a violent person who attacked his own family members in the past and would do so again if free from incarceration. Hence, this letter was not subject to disclosure under either Brady or the exculpatory-evidence prong of the discovery statute." (Zambrano, supra, 41 Cal.4th at p. 1134.)

C. Analysis

On appeal, the People assert that defendant has failed to show the stock tissue was material because the evidence was never examined, and no one knows if the stock tissue contained anything that was favorable or material.³⁰

30 The People also argue that both Dr. Whitmore and Dr. Omalu testified the stock tissue was not material to the question of whether an aneurysm could have been found While Dr. Whitmore testified it would have been an "extremely long shot" to find evidence of an aneurysm in the stock tissue, Dr. Omalu refused to concede the point and insisted that he could have found evidence of an aneurysm to disprove Dr. Whitmore's conclusions if he had been able to examine stock tissue.

It is certainly possible that a pathologist could have found material evidence to support the defense theory that Maria died from an aneurysm if the stock tissue had been tested. Dr. Omalu believed such an examination would have supported his opinion, and even Dr. Whitmore conceded that it was possible but not likely he missed an aneurysm.

We are compelled to agree with the People, however, that defendant failed to meet his burden of showing materiality under Brady based on the state of the record. As in Whalen, it would be "speculative at best" to conclude that the stock tissue was material, and that there was a reasonable possibility of a different result. (Whalen, supra, 56 Cal.4th at p. 65; Salazar, supra, 35 Cal.4th at p. 1043.) " ' "The mere possibility that an item of undisclosed information might have helped the defense, or might have affected the outcome of the trial, does not establish 'materiality' in the constitutional sense." [Citation.]' [Citation.]" (People v. Superior Court (Meraz), supra, 163 Cal.App.4th at p. 52.)

Brown and Uribe found materiality because the actual nature of the evidence was apparent: the blood test results in Brown and the videotape in Uribe were readily apparently, favorable and material, and would have supported the defense theories in those cases. In contrast, the existence of the stock tissue is similar to the undeveloped rolls of film in Whalen, since the record is silent as to the actual evidentiary value of these items relative to the defense. In addition, Dr. Whitmore's rebuttal testimony was not specific as to the precise portion of the brain that had been preserved as stock tissue, and whether those portions could have contained any evidence of an aneurysm, as posited by Dr. Omalu.

We are thus compelled to conclude that defendant failed to meet his burden of establishing the materiality of the evidence as required by Brady, and the court properly denied defendant's motion to dismiss based on the alleged Brady violation.

VI. Denial of Defendant's Motion for a Continuance

As we have explained, defendant's motion to dismiss for the alleged Brady violation was properly denied since defendant failed to meet his burden of showing materiality, based on the state of the record before both the trial court and this court. This conclusion, however, does not end our analysis of defendant's Brady objections.

In addition to moving for dismissal based on the alleged Brady violation, defendant separately moved for a continuance in order to recall the defense expert and/or examine the brain tissue. The court denied the continuance motion for the same reason it denied the motion to dismiss - the prosecution still had the burden of proof and the defense could file a motion for new trial based on the alleged Brady error if defendant was convicted.

On appeal, defendant argues the court abused its discretion when it denied his motion for a continuance. Defendant asserts Dr. Whitmore's rebuttal testimony - that he in fact saved stock tissue from the brain - undermined the weight and credibility of Dr. Omalu's defense testimony, specifically his testimony that if stock tissue existed, he would ask the court to stop the proceedings so he could examine the evidence. Defendant argues that after Dr. Whitmore testified on rebuttal that such evidence existed, the court's denial of his motion to continue prevented the jury from hearing an explanation about Dr. Omalu's previous testimony or why the defense did not examine the tissue. Defendant also asserts the court violated his due process right to present a defense when it denied his motion to continue.

We find the court abused its discretion in not granting even a limited continuance for the defense to recall Dr. Omalu. As with the Brady materiality issue, however, prejudice cannot be shown based on the present state of the record. We remand the matter for further appropriate proceedings for the defense to have the opportunity to examine the brain tissue and pursue a new trial motion, should defendant choose to do so.

A. Midtrial Motion for a Continuance

We begin with the well-settled standards for a midtrial motion to continue.

" 'The granting or denial of a motion for continuance in the midst of a trial traditionally rests within the sound discretion of the trial judge who must consider not only the benefit which the moving party anticipates but also the likelihood that such benefit will result, the burden on other witnesses, jurors and the court and, above all, whether substantial justice will be accomplished or defeated by a granting of the motion....' " (People v. Zapien (1993) 4 Cal.4th 929, 972; People v. Fudge (1994) 7 Cal.4th 1075, 1105-1106.)

"Entitlement to a midtrial continuance requires the defendant 'show he exercised due diligence in preparing for trial.' [Citation.]" (People v. Fudge, supra, 7 Cal.4th at p. 1106.) In deciding whether to grant the motion, particularly in the middle of trial, it must be shown the evidence can be obtained within a reasonable time. (People v. Beeler (1995) 9 Cal.4th 953, 638, overruled on other grounds in People v. Edwards (2013) 57 Cal.4th 659, 704-705.) When the defendant moves for a midtrial continuance to call a witness, he has the burden of showing that "he had exercised due diligence to secure the witness's attendance, that the witness's expected testimony was material and not cumulative, that the testimony could be obtained within a reasonable time, and that the facts to which the witness would testify could not otherwise be proven. [Citations.]" (People v. Howard (1992) 1 Cal.4th 1132, 1171.)

"In the absence of a showing of an abuse of discretion and prejudice to the defendant, a denial of a motion for a continuance does not require reversal of a conviction. [Citation.]" (People v. Barnett (1998) 17 Cal.4th 1044, 1126, italics added; People v. Doolin, supra, 45 Cal.4th at p. 450; People v. Samayoa (1997) 15 Cal.4th 795, 840.) The defendant bears the burden of establishing both an abuse of discretion and prejudice. (People v. Panah (2005) 35 Cal.4th 395, 423; People v. Johnson (1988) 47 Cal.3d 576, 591.)

In determining whether the court abused its discretion, we must consider "whether the court exercised its discretion in an arbitrary, capricious, or patently absurd manner that result[ed] in a manifest miscarriage of justice [citation]." (People v. Lawley (2002) 27 Cal.4th 102, 158.) An abuse of discretion is shown "only when the court exceeds the bounds of reason, all circumstances being considered. [Citations.]" (People v. Beames (2007) 40 Cal.4th 907, 920-921; People v. Mungia (2008) 44 Cal.4th 1101, 1118.)

"To establish prejudice, a defendant must show affirmatively that in the absence of the claimed error (here, denial of his motion to continue made [in the midst of trial]), a result more favorable to him probably would have ensued. (People v. Watson (1956) 46 Cal.2d 818, 836 ....)" (People v. Gonzalez (2005) 126 Cal.App.4th 1539, 1549.) "[A] bald assertion of prejudice is not sufficient. [Citation.]" (People v. Johnson, supra, 47 Cal.3d at p. 591.)

"A reviewing court considers the circumstances of each case and the reasons presented for the request to determine whether a trial court's denial of a continuance was so arbitrary as to deny due process. [Citation.] Absent a showing of an abuse of discretion and prejudice, the trial court's denial does not warrant reversal. [Citation.]" (People v. Doolin, supra, 45 Cal.4th at p. 450.)

B. Abuse of Discretion

We are compelled to find the court abused its discretion when it summarily denied defendant's motion for a continuance. We reluctantly reach this conclusion even though the court was in the midst of a protracted trial due to unavoidable circumstances caused by the incapacity of a key defense witness, together with the evidence about the grave nature of the victim's fatal brain hemorrhages, defendant's prior violence against the victim, and the strong and diametrically opposing expert opinions about the cause of death.

In making this determination, we must consider the circumstances under which defendant moved for the continuance. The critical issue at trial was the victim's cause of death. The prosecution theory, based on the testimony from Maria's children and Dr. Whitmore, was that defendant inflicted blunt force trauma to her head that resulted in the fatal brain hemorrhages. The defense theory, based on cross-examining the children and Dr. Omalu's testimony, was that Maria was showing symptoms consistent with an aneurysm in the hours before her death, she became unconscious while sitting on the couch because the aneurysm ruptured, the ruptured aneurysm caused the brain hemorrhages, and defendant did not inflict sufficient force to her head to cause the fatal hemorrhages.

Dr. Omalu particularly noted that Dr. Whitmore said he never found the source for the bleeding in the brain, that he visually examined the brain for an aneurysm and did not find one, and that he failed to conduct more precise tests or microscopic analysis of the brain tissue to look for either an aneurysm or the source of the bleeding. Dr. Omalu strongly criticized Dr. Whitmore's method of examining the brain for an aneurysm, and his failure to preserve tissue from the brain that would have allowed another expert to examine the tissue to determine the cause of death.

On cross-examination, the prosecutor repeatedly asked Dr. Omalu whether it would have made any difference if Dr. Whitmore had preserved stock tissue from the brain. Dr. Omalu responded: "... If there was stock tissue, bring it. Let's do a histological analysis to further confirm that it's not blunt force trauma." He further testified: "If there is stock tissue in this case, my professional advise [sic] to the court would be, let's stop the proceedings, bring the stock tissue. Let's examine them and then come back in. There is stock tissue, what stops us. Let us stop. Bring the stock tissue. Let us examine them and let me come back and testify. I'll show you different pictures of why this is not blunt force trauma." Dr. Omalu testified that if Dr. Whitmore had preserved stock tissue from Maria's brain, "we would have gone back and taken sections and provided more specific and definitive answers" about when the rupture and bleeding began. (Italics added.)

Dr. Omalu completed his testimony on the morning of January 13, 2015, and the defense rested. The prosecutor said she was going to recall Dr. Whitmore on rebuttal, but requested a continuance because he would not be available until the following day. Over defense objections, the court granted the motion to continue to the following day.

On the morning of January 14, 2015, Dr. Whitmore appeared as a rebuttal witness, and the prosecutor's first questions elicited his disclosure, for the first time, that he collected and retained stock tissue from Maria's brain when he conducted the autopsy, and the tissue was preserved in the coroner's office. Defense counsel immediately objected, but the court deferred ruling on the objections until the conclusion of Dr. Whitmore's rebuttal testimony.

On the morning of January 15, 2015, the court heard defense counsel's Brady objections, including a motion to continue in order to introduce evidence in response to Dr. Whitmore's testimony. In the course of argument, defense counsel stated that Dr. Whitmore's rebuttal testimony occurred after the defense had "lost" the expert, presumably meaning that Dr. Omalu was not available to appear at that moment. However, defense counsel stated that she had contacted Dr. Omalu that morning, advised him about the existence of stock tissue, and asked if he could perform any analysis to support his opinion about a ruptured aneurysm. According to counsel, Dr. Omalu said "that there is a reasonable likelihood it may result in some additional findings that would support his conclusion that this was not homicide."

Defense counsel requested a continuance in order to present evidence to support the conclusion that "this is not a homicide case." Counsel noted that Dr. Whitmore testified in rebuttal that it was "possible" the stock tissue "could show the source" of the bleeding if another expert looked at the evidence. Counsel wanted to recall the defense expert to address what could be exculpatory evidence. Counsel also argued defendant had a due process right to "get this stock tissue examined for any exculpatory evidence, and that can even support my expert's conclusion that this case is not homicide."

In response, the prosecutor refuted defense counsel's assertions about the Brady error. The prosecutor argued the court should deny the defense motion for a continuance because even if the defense felt it needed time to test the tissue, "[i]t doesn't matter. It doesn't make any difference to this case."

On January 15, 2015, the court denied all of defendant's Brady objections. The court did not specifically address his motion to continue, but characterized it as "an extremely long shot" that the tissue would reveal any evidence about the source of the fatal bleeding. The court concluded the "bottom line" was that the prosecution still had the burden of proof and the failure to examine the brain tissue "falls on the People." On January 16, 2015, the parties gave closing arguments, the court read the instructions, and the jury began deliberations.

As explained above, when the court is called upon to consider a midtrial motion to continue, it must consider not only the benefit to the moving party but also " 'the burden on other witnesses, jurors and the court and, above all, whether substantial justice will be accomplished or defeated by a granting of the motion....' " (People v. Zapien, supra, 4 Cal.4th at p. 972.) The defendant must show "he had exercised due diligence to secure the witness's attendance, that the witness's expected testimony was material and not cumulative, that the testimony could be obtained within a reasonable time, and that the facts to which the witness would testify could not otherwise be proven. [Citations.]" (People v. Howard, supra, 1 Cal.4th at p. 1171.)

When the court denied defendant's Brady objections, it did not specifically address his motion for a continuance or these considerations as to whether such a motion should be granted. The court did not address counsel's request to recall Dr. Omalu to appear as a surrebuttal witness, or determine whether Dr. Omalu could promptly return to Kern County, or how much time he would need to examine the brain tissue.

On appeal, the People assert that the court was not obliged to grant "defense counsel's fourth midtrial request for a continuance." The People's characterization of the prior continuances is refuted by the undisputed procedural history of this case. As we have explained, defendant's prior motions to continue were required by the sudden illness of Dr. Bonnell, the initial defense expert. The court found Dr. Bonnell was a material witness and granted the continuances to determine if he would be able to appear. Once it was determined he was too ill to testify, the court granted further continuances for the defense to obtain another expert. Counsel retained Dr. Omalu to appear instead, and the trial resumed.

The court exercised great effort to allow defense counsel to retain another expert and avoid having to declare a mistrial. There is no evidence that defense counsel needlessly delayed the trial during this period.

The People also assert the defense "chose not" to present surrebuttal evidence to address Dr. Whitmore's rebuttal testimony about the stock tissue. Such an argument begs the question since the court denied defendant's motion to continue in the absence of his expert, which prevented the defense from introducing evidence in surrebuttal.

Defendant's motion to continue was made after the prosecution had introduced its only rebuttal witness, who appeared after the court had already granted the prosecution's motion to continue so Dr. Whitmore could appear. In addition, the court deferred hearing defendant's Brady objections until the day after Dr. Whitmore concluded his rebuttal testimony, and ultimately instructed the jury on the following day.

Given the procedural history of this case, the court was likely concerned about further delays and would have been inclined to move the trial along. While a continuance would not have inconvenienced the court or witnesses, there would have been a very real concern about the impact of additional delays on the jury. However, the court did not cite this issue or similar factors when it denied defendant's Brady objections. (See, e.g., People v. Fuiava (2012) 53 Cal.4th 622, 651 [denial of defendant's motion to continue "was not an arbitrary insistence on expeditiousness, but rather a reasoned assessment of the need for delaying the trial in light of the potential problems such delay might cause"]; People v. Howard, supra, 1 Cal.4th at p. 1171 [continuance motion properly denied when defendant failed to show diligence to procure expert on previously known issue].)

Based on the circumstances, the belated disclosure about the existence of the brain tissue, and the importance of the issue, the court abused its discretion by denying defendant's motion to continue without determining whether the defense could produce evidence in surrebuttal in a reasonable time so as to not inconvenience the jury. It should be noted that the court's failure to consider granting even a brief continuance occurred just after it had granted the People's motion to continue the trial by an additional day to call Dr. Whitmore as a rebuttal witness, which resulted in the surprise disclosure about the existence of the brain tissue.

C. Prejudice

A denial of a motion to continue does not require reversal unless there is a showing of both an abuse of discretion and prejudice to the defendant. (People v. Barnett, supra, 17 Cal.4th at p. 1126.) The defendant must affirmatively show that in the absence of the court's denial of the continuance, a result more favorable to him probably would have ensued. (People v. Watson, supra, 46 Cal.2d at p. 836; People v. Gonzalez, supra, 126 Cal.App.4th at p. 1549.)

As with our review of materiality, the record before this court does not establish the requisite prejudice from the court's denial of a continuance. If a defense expert had examined the preserved brain tissue, that examination could have either supported or refuted Dr. Whitmore's opinion about blunt force trauma as the cause of death, Dr. Omalu's opinion about a ruptured aneurysm, or been inconclusive. It is also difficult to determine the prejudicial impact of defendant's inability to recall Dr. Omalu to testify as a surrebuttal witness to address Dr. Whitmore's rebuttal testimony, even without having the opportunity to examine the brain tissue. While the court failed to consider whether Dr. Omalu could timely return as a witness, defense counsel did not make an offer of proof about the possible nature of any surrebuttal testimony. (See, e.g., People v. Barnett, supra, 17 Cal.4th at p. 1126 [denial of continuance was not prejudicial when defendant failed to show proposed testing would have produced relevant evidence].)

We thus decline to reverse defendant's conviction based on the court's denial of the continuance because the record fails to show both an abuse of discretion and prejudice.³¹

31 For the same reasons, we decline to find the court's denial of defendant's motion denied his due process rights. (People v. Beames, supra, 40 Cal.4th at pp. 920-921; People v. Mungia, supra, 44 Cal.4th at p. 1118; People v. Howard, supra, 1 Cal.4th at pp. 1171-1172.)

D. Remand

Based on the appellate record, we cannot find that the court's denial of defendant's motion to continue was prejudicial. However, we cannot ignore that the evidentiary deficiency was the result of the denial of defendant's motion to continue or consideration as to whether defendant could have presented surrebuttal evidence in a timely manner.

We thus order the conditional reversal of defendant's conviction and remand the matter for further appropriate proceedings - particularly the opportunity for the defense to examine the brain tissue that was preserved by Dr. Whitmore during the autopsy. If the defendant proceeds with such an examination, he may make a motion for new trial.

A motion for new trial may be based on newly discovered evidence. (People v. Bowles (2011) 198 Cal.App.4th 318, 328; People v. Beeler, supra, 9 Cal.4th at pp. 1004-1005.) A new trial motion may separately allege a constitutional due process violation based on a purported Brady error. (Uribe, supra, 162 Cal.App.4th at p. 1482; People v. Harrison (2017) 16 Cal.App.5th 704, 709-711; People v. Hoyos, supra, 41 Cal.4th at pp. 916-919.)

If defendant makes a motion for new trial, the motion must be supported by any newly discovered and admissible evidence that shows there is a reasonable probability that a different result would have occurred if such evidence had been disclosed prior to trial. The prosecution will have the opportunity to contest such evidence. (See, e.g., People v. Ochoa (1998) 19 Cal.4th 353, 473; People v. Hustead (1999) 74 Cal.App.4th 410, 418-423; People v. Johnson (2004) 118 Cal.App.4th 292, 304-305; People v. Gaines (2009) 46 Cal.4th 172, 176; People v. Gill (1997) 60 Cal.App.4th 743, 750-751.) In ruling on the new trial motion, the trial court may consider the credibility as well as the materiality of the evidence in determining whether introduction of the evidence in a new trial would render a different result reasonably probable. (People v. Delgado (1993) 5 Cal.4th 312, 329.)

We note that, based on the trial record, even if a defense expert opines that the brain tissue showed evidence of a ruptured aneurysm that would necessarily lead to disputed questions of fact about whether it ruptured and resulted in the fatal subarachnoid hemorrhaging because of defendant's final assault upon Maria.

If defendant does not file a motion for new trial, or the court hears and denies such a motion, defendant's conviction shall be reinstated.³² VII. Denial of Defendant's Motion for an Instruction ³³

32 Given our resolution of this issue, we need not address the contention that defense counsel was prejudicially ineffective for failing to renew the Brady objections in a motion for new trial.

33 We are remanding the matter for further appropriate proceedings but will briefly address defendant's remaining contentions which, as we explain, are without merit.

As part of his Brady motion for sanctions, defendant moved in the alternative for the court to give the jury an instruction regarding the prosecutor's belated disclosure of the existence of the brain tissue, consistent with People v. Wimberly (1992) 5 Cal.App.4th 773 (Wimberly). The court also denied this motion. Defendant argues the court abused its discretion in denying this motion.

Defendant's requested instruction was based on Wimberly, where an officer in charge of the property room permitted the destruction of evidence related to the charges against the defendant, consistent with an existing policy that provided for destruction of nonmurder felony evidence in the absence of movement in a case for two years. The defendant moved for dismissal based on the prosecution's violation of the standing discovery order; the defendant did not make any Brady objections. The trial court found the prosecution's actions violated the existing discovery order, there was no evidence of bad faith, and denied the motion to dismiss. (Wimberly, supra, 5 Cal.App.4th at pp. 791-792.) The court instead instructed the jury "that the employees of the police department had destroyed evidence in violation of court order, described the destroyed items, and concluded: 'Because of the destruction of evidence after the Superior Court issued a discovery order, you may draw an adverse inference to the Prosecution in the proof of Counts 1, 2, 3, and 4 of the information. Such adverse inference may be sufficient to raise a reasonable doubt as to' those counts." (Id. at p. 792.) Wimberly rejected the defendant's argument that the instruction was insufficient because it failed to expressly benefit him. (Ibid.)

In this case, the court did not abuse its discretion when it declined to give defendant's requested instruction based on Wimberly since that instruction addressed the destruction of evidence, whereas defendant's Brady objection was based on the belated disclosure of the evidence.

VIII. Admission of Rebuttal Evidence

As a separate issue from his Brady contentions, defendant renews his arguments made to the superior court, that it improperly allowed Dr. Whitmore to testify in rebuttal about the existence of the stock tissue; examine and give his opinions about Maria's clothing; and testify that the medications found in her possession were not consistent with suffering from headaches that could have indicated an aneurysm. Defendant asserts that such testimony was improper on rebuttal, and the court erroneously overruled defense counsel's objections on that point.³⁴

34 The People assert that defendant failed to preserve any objection about improper rebuttal evidence because he did not raise this issue upon Dr. Whitmore's rebuttal testimony. However, defendant immediately objected to Dr. Whitmore's testimony, the court held an unreported bench conference, and then directed Dr. Whitmore to continue with his testimony. The following day, defendant raised the rebuttal issue in the course of his motion for sanctions based on Brady. We find defendant preserved review of his claim of improper rebuttal evidence.

"It is improper for the prosecution to deliberately withhold evidence that is appropriately part of its case-in-chief, in order to offer it after the defense rests its case and thus perhaps surprise the defense or unduly magnify the importance of the evidence. Nevertheless, when the evidence in question meets the requirements for impeachment it may be admitted on rebuttal to meet the evidence on a point the defense has put into dispute. [Citation.]" (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 68.)

Thus, evidence is proper rebuttal evidence if it "tend[s] to disprove a fact of consequence on which the defendant has introduced evidence. [Citation.]" (People v. Wallace (2008) 44 Cal.4th 1032, 1088.) "Testimony that repeats or fortifies a part of the prosecution's case that has been impeached by defense evidence may properly be admitted in rebuttal. [Citations.]" (People v. Young (2005) 34 Cal.4th 1149, 1199.) Proper rebuttal evidence "is restricted to evidence made necessary by the defendant's case in the sense that he has introduced new evidence or made assertions that were not implicit in his denial of guilt.' " (Ibid.)

"The admission of evidence in rebuttal is a matter left to the sound discretion of the trial court. [Citation.] The court's decision in this regard will not be disturbed on appeal in the absence of 'palpable abuse.' [Citations.]" (People v. Hart (1999) 20 Cal.4th 546, 653.)

We have already addressed defendant's Brady issues about the materiality of the stock tissue. As a separate evidentiary matter, the court did not abuse its discretion when it permitted his rebuttal testimony. Dr. Whitmore's testimony about Maria's clothing and the ibuprofen prescription was of minimal relevance, and these matters were appropriate topics for the prosecution to address in rebuttal. Dr. Omalu aggressively challenged Dr. Whitmore's conduct of the autopsy on several points, including his failure to preserve tissue samples and examine Maria's clothing. Dr. Omalu also opined that Maria's possession of certain medications supported his belief that she was suffering headaches, consistent with symptoms indicating she had an aneurysm. Dr. Whitmore's rebuttal testimony was relevant to "meet the evidence on a point the defense has put into dispute. [Citation.]" (People v. Coffman and Marlow, supra, 34 Cal.4th at p. 68.)

IX. Prosecutorial Misconduct

Defendant reasserts another of the arguments he raised in response to Dr. Whitmore's rebuttal testimony - that aside from the alleged Brady violation, the prosecutor committed prejudicial misconduct by failing to disclose the existence of the stock tissue prior to trial, and defense counsel suspected the prosecutor knew about the stock tissue based on her cross-examination questions to Dr. Omalu. Defendant argues the prosecutor further committed misconduct by claiming the coroner was not part of the "prosecution team" for purposes of Brady, and introducing new evidence in rebuttal.

Defendant also claims the prosecutor committed misconduct by failing to timely disclose impeachment evidence against Enrique and Oscar, even though such evidence was requested in counsel's pretrial discovery motions.

"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.)

"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.) A showing of bad faith on the part of the prosecutor is not required to establish misconduct. (People v. Hill (1998) 17 Cal.4th 800, 822-823.)

A. Stock Tissue

We have already addressed defendant's Brady issues. In denying defendant's motion for sanctions, the court found the prosecutor did not intentionally withhold the evidence that Dr. Whitmore kept stock tissue of Maria's brain. Based on the entirety of the evidence, it appears that Dr. Whitmore failed to record the preservation of this evidence on the autopsy report, and repeatedly testified that he did not make slides or conduct any microscopic examination of brain tissue. There is no evidence that the prosecutor knew about the stock tissue prior to trial or that it would even be an issue. In response to Dr. Omalu's testimony, the prosecutor asked Dr. Whitmore to determine whether he kept any tissue.

Defendant disputes exactly when the prosecutor learned about the existence of the stock tissue. When the prosecutor cross-examined Dr. Omalu, she asked if his opinions would change if he learned that stock issue still existed. The next day, the prosecutor asked for a continuance to recall Dr. Whitmore on rebuttal, and he returned the following day. When the court considered defendant's Brady objections, there was also some dispute whether the prosecutor knew about the stock tissue the day before Dr. Whitmore returned for rebuttal, or he told the prosecutor about the evidence as he took the stand.

Even if defendant's timeline is accepted, the possible difference of 24 hours would not constitute prosecutorial misconduct since it is clear that Dr. Whitmore did not previously advise the prosecutor that he had kept the stock tissue until just before he appeared in rebuttal. This brief delay did not constitute prosecutorial misconduct and did not render defendant's trial fundamentally unfair. (Whalen, supra, 56 Cal.4th at pp. 65-66.)

B. Legal Arguments

We also reject defendant's claim that the prosecutor engaged in misconduct based on the legal arguments she raised in opposition to the defendant's Brady objections. The prosecutor's assertion that the coroner was not part of the prosecution team was based on fair argument about conflicting legal and factual assertions from the record. While we have found that Dr. Whitmore was part of the prosecution team, the contrary argument does not constitute misconduct.

C. The Witnesses' Prior Records

Defendant's claim that the prosecutor committed misconduct in the belated disclosure of the witnesses' prior records is based on the following circumstances.

On November 14, 2013, defense counsel filed a motion for discovery prior to the preliminary hearing that sought, among other items, the dates and natures of any convictions involving moral turpitude for all prosecution witnesses. Counsel subsequently dropped this motion.

On July 3, 2014, defendant filed a motion for discovery and asserted certain evidence had still not been disclosed, including the "rap sheet" for Enrique, and prior convictions for all prosecution witnesses. On July 16, 2014, the People filed a reply and stated that the prosecutor had already advised the defense that Enrique had "no crimes or arrests for acts involving moral turpitude."

On November 3, 2014, the court reviewed the parties' motions in limine just prior to trial. The prosecutor said she was not aware of any prior crimes of moral turpitude, but that she would run rap sheets on two additional witnesses. On November 5, 2014, the prosecutor advised defense counsel about prior adjudications or convictions for Enrique, Oscar, and Arturo. On November 6, 2014, defendant filed a motion for dismissal and claimed the prosecutor violated Brady by failing to previously disclose the impeachment evidence. The court denied the motion.

At trial, Enrique testified for the prosecution and simply admitted that in 2011, when he was a juvenile, he was with his brother, Oscar, and other friends. Enrique and Oscar waited outside a residence while his friends burglarized a residence, and they ran away from the police. Arturo did not testify. Oscar testified for the defense and was not impeached.

Based on this record, we find no evidence of prosecutorial misconduct. The prosecutor disclosed the prior records of the witnesses prior to trial, and defense counsel had sufficient opportunity to question Enrique about the circumstances of Maria's death. X. Trombetta/Youngblood Issues

As another separate issue, defendant contends that his due process rights were violated because the prosecution failed to preserve the portions of Maria's brain where the bleeding was, even though the cause of death was going to be a contested issue in a homicide case. Defendant thus asserts the exculpatory value of those areas of the brain was reasonably apparent, and the prosecution failed to preserve exculpatory evidence and destroyed the brain in bad faith, in violation of Trombetta and Youngblood.

Defendant acknowledges that he did not specifically raise a Trombetta/Youngblood objection during trial, which might have resulted in a "more developed factual record as to the disposal of the brain." However, defendant contends this issue has not been forfeited because it was fairly encompassed in defendant's Brady motion. In the alternative, he asserts this court should ignore his forfeiture and address the issue on the merits to avoid an ineffective assistance claim in a habeas petition.

In Trombetta and Youngblood, the United States Supreme Court held that law enforcement agencies have a duty under the due process clause of the federal Constitution 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; Youngblood, supra, 488 U.S. at pp. 56-58.)

"Law enforcement agencies must preserve evidence only if it possesses exculpatory value 'apparent before [it] was destroyed,' and not obtainable 'by other reasonably available means.' [Citations.] The state's responsibility is further limited when the defendant challenges the failure to preserve evidence 'of which no more can be said than that it could have been subjected to tests' that might have helped the defense. [Citation.] In such a case, unless the defendant can show 'bad faith' by the police, failure to preserve 'potentially useful evidence' does not violate his due process rights. [Citation.]" (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 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.)

If the defendant demonstrates that significant exculpatory evidence was lost, or establishes bad faith in connection with the loss of potentially useful evidence, the trial court has discretion to impose appropriate sanctions. (People v. Medina (1990) 51 Cal.3d 870, 894.) Such sanctions may include fashioning suitable cautionary instructions. (Ibid.)

"[A] trial court's inquiry whether evidence was destroyed in good faith or bad faith is essentially factual: therefore, the proper standard of review is substantial evidence. [Citation.]" (People v. Memro (1995) 11 Cal.4th 786, 831, overruled on other grounds in People v. Gaines (2009) 46 Cal.4th 172, 181, fn. 2.) However, a defendant's failure to raise Trombetta and Youngblood issues below necessarily forfeits review of the due process contentions on appeal. (People v. Williams (1997) 16 Cal.4th 635, 661-662.)

In addition, a defendant's failure to object to the alleged restriction of his confrontation rights under Davis v. Alaska (1974) 415 U.S. 308 (Davis), also forfeits review of the issue on appeal. (People v. Lewis and Oliver (2006) 39 Cal.4th 970, 996.)

A. Analysis

Defendant's objections to Dr. Whitmore's rebuttal testimony and the belated disclosure of the existence of the stock tissue were limited to Brady issues, prosecutorial misconduct, and improper rebuttal evidence. Defendant never argued that Dr. Whitmore's preservation of some but not all of the brain violated Trombetta, Youngblood, or Davis. We reject defendant's claim that his Brady objections necessarily encompassed these issues.

Defendant's broad claim of ineffective assistance does not help his cause on this issue. Even if counsel should have raised this objection, it is impossible to determine from this record the nature or extent of a Trombetta/Youngblood claim in this case. Dr. Whitmore testified he preserved stock tissue from a portion of Maria's brain, but there was no clear evidence as to exactly what part of the brain the preserved tissue had been taken.

More importantly, there is no record as to exactly why Dr. Whitmore preserved some but not all of Maria's brain. He testified about the extensive subarachnoid hemorrhaging in the brain, looked for and saw no visual evidence of an aneurysm, and concluded the cause of death was blunt force trauma. 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.)

We thus conclude defendant failed to preserve a Trombetta/Youngblood objection in this case, and the record would not support an ineffective assistance claim.

XI. CALCRIM No. 852

As set forth in the factual statement, the prosecution introduced evidence of several incidents of prior domestic violence where defendant beat or hit Maria. The court instructed the jury with CALCRIM No. 852 on the consideration of this evidence:

"The People presented evidence that the defendant committed domestic violence that was not charged in this case. Domestic violence means abuse committed against an adult who is a spouse. Abuse means intentionally or recklessly causing or attempting to cause bodily injury or placing another person in reasonable fear of imminent serious bodily injury to himself or herself or to someone else.

"You may consider this evidence only if the People have proved by a preponderance of the evidence that the defendant, in fact, committed the uncharged domestic violence. Proof by a preponderance of the evidence is ... a different burden of proof from proof beyond a reasonable doubt. A fact is proved by a preponderance of the evidence, if you conclude that it is more likely than not, that the fact is true. If the People have not met this burden of proof, you must disregard this evidence entirely.

"If you decide that the defendant committed the uncharged domestic violence, you may, but are not required to conclude from that evidence that the defendant was disposed or inclined to commit domestic violence, and based on that decision also conclude that the defendant was likely to commit and did commit murder or manslaughter. If you conclude that the defendant committed the uncharged domestic violence, that conclusion is only one factor to consider along with all the other evidence.

"[I]t is not sufficient by itself to prove that the defendant is guilty of murder or manslaughter.... The People must still prove each charge and allegation beyond a reasonable doubt...." (Italics added.)

Defendant points to the italicized phrase and argues the instruction improperly permitted the jury to make the inference that he committed murder instead of another act of domestic violence.

The constitutionality of Evidence Code section 1109 under the due process clauses of the federal and state constitutions "has now been settled." (People v. Jennings (2000) 81 Cal.App.4th 1301, 1310; People v. Johnson (2008) 164 Cal.App.4th 731, 739-740.) Defendant fails to acknowledge that the instruction also stated that it was up to the jury to determine whether the prior incidents occurred and, if the jury found the uncharged acts occurred, it could but was not required to conclude defendant was disposed to commit domestic violence and the charged offense.

The instructional language comports with due process and correctly states the law. It adequately clarifies the prosecution's burden of proof, the jury's task as finders of fact based on a permissive inference, and the correct use of propensity evidence. (People v. Reyes (2008) 160 Cal.App.4th 246, 251-253; People v. Reliford (2003) 29 Cal.4th 1007, 1016; People v. Loy (2011) 52 Cal.4th 46, 72-75; People v. Falsetta (1999) 21 Cal.4th 903, 915, 923-924; People v. Johnson, supra, 164 Cal.App.4th at pp. 738-740; People v. Pescador (2004) 119 Cal.App.4th 252, 259; People v. Escobar (2000) 82 Cal.App.4th 1085, 1094-1097.)

"By telling jurors that evidence of prior offenses is insufficient to prove defendant's guilt of the charged offenses beyond a reasonable doubt, jurors necessarily understand that they must consider all the other evidence before convicting defendant." (People v. Reliford, supra, 29 Cal.4th at p. 1015; People v. Pescador, supra, 119 Cal.App.4th at p. 261.) As relevant to this case, the defendant's propensity to commit domestic violence against a spouse who was subsequently murdered "is relevant and probative to an element of murder, 'namely, [defendant's] intentional doing of an act with malice aforethought that resulted in the victim's death.' [Citation.] A defendant's pattern of prior acts of domestic violence logically leads to the inference of malice aforethought and culpability for murder." (People v. Brown (2011) 192 Cal.App.4th 1222, 1237.)

There is no reasonable likelihood the jury would have viewed the instruction to permit it to find defendant guilty of murder based on a reduced burden of proof, impermissible inferences or solely on the prior acts of domestic violence. (People v. Loy, supra, 52 Cal.4th at p. 76.)³⁵

35 As mentioned throughout this opinion, defendant has raised a broad claim of ineffective assistance to the extent that defense counsel failed to preserve any objections or motions during trial. Defendant also contends that cumulative errors in this case violated his due process right to a fair trial. We have addressed the court's failure to grant a continuance and cannot find a violation of his due process rights based on the record before this court.

DISPOSITION

The judgment is conditionally reversed and the matter remanded for further appropriate proceedings consistent with this opinion, and to allow the defense a reasonable opportunity to determine whether to file a motion for new trial.

If defendant declines to file a motion for new trial, or he files a motion for new trial and the trial court denies the motion, the court is directed to reinstate the judgment, which shall stand affirmed. If the trial court grants a new trial, the judgment shall stand reversed and defendant may be retried.

/s/_________

POOCHIGIAN, Acting P.J. WE CONCUR: /s/_________
DETJEN, J. /s/_________
PEÑA, J.