People v. Franklin

Full title: THE PEOPLE, Plaintiff and Respondent, v. MICHAEL ELLISON FRANKLIN…

Court: Court of Appeals of California, Third Appellate District.

Date published: Jul 7, 2003

C037197 (Cal. Ct. App. Jul. 7, 2003)

Opinion

C037197.

7-7-2003

THE PEOPLE, Plaintiff and Respondent, v. MICHAEL ELLISON FRANKLIN, Defendant and Appellant.

Nicholson

Defendant Michael E. Franklin took his wife, Ronna Franklin, out on a snowmobile ride and drowned her in a puddle of slushy water to collect on her life insurance policies totaling almost $ 2 million. Convicted of first degree murder with special circumstances of lying in wait and murder for financial gain, and sentenced to life in state prison without the possibility of parole, defendant appeals. He alleges numerous instances of trial court error and prosecutorial misconduct. He further asserts the evidence was insufficient to support his conviction. Having reviewed the record and defendants contentions, we find no prejudicial error, except that the trial court failed to award local conduct credits to which defendant was entitled. We modify the judgment to reflect those credits and affirm the judgment as modified.

FACTS

Leading Up to Victims Death

Defendant and Ronna met sometime before 1990 and were married on July 4, 1994. Defendant was six feet, seven inches tall and weighed 300 pounds; Ronna was five, seven inches tall and weighed 168 pounds. At the time of their marriage, Ronna was 35 years old and defendant 32. They desired to have a baby, but Ronna, a diabetic, had difficulty getting pregnant. After becoming pregnant through in vitro fertilization, Ronna spent several months in the hospital because of complications associated with the pregnancy. During that time, defendant seldom visited her and, when he did, they would argue. The infrequency of his visits and his apparent disinterest upset Ronna. Their son, Michael Jr., was born in April 1995, and was just 20 months old when his mother died.

Just before and during his marriage to Ronna, defendant engaged in at least 12 affairs. He gave these women his pager or voice mail number and contacted them periodically. He commonly told the women he did not have a home because he traveled extensively.

Defendant told one of the women, Shelle H., whom he dated throughout his marriage, that he could not spend the Fourth of July holiday with her in 1994 because he had plans with his friends. In fact, defendant did not spend that day with her because it was the day he was marrying Ronna. Defendant also told Shelle, in June 1994, that he had gotten a woman pregnant as a result of a one-night stand. He said he did not love the woman and that she was incapable of taking care of a child. In December 1994, defendant said there was no way the woman would ever have full custody of the child and he was building a case against her as an unfit mother. In January 1995, while his wife was in the hospital because of the complications with her pregnancy, defendant told Shelle that the woman he had impregnated was a diabetic and was in the hospital. In October 1996, another woman defendant was dating, Marsha V., obtained information he was married. When she confronted defendant with that information, he said: "I will get this taken care of."

Defendant told his family and various women different stories about his employment. He worked for an engineering company. He owned several businesses, including a company that owned and rented out hospitals, a tanning salon, a company that published a magazine, and a construction company. He was an investor. He worked for the Secret Service or the military on the weekends. He did bodyguard and undercover work on the side. He flew an airplane. He was a computer engineer or consultant. He had played for the Raiders. His ambition for the future was to be president of the United States.

Credible evidence showed defendant had a construction company, which incurred considerable debt, before the marriage. During the marriage, defendant owned a computer business (PNM Associates), a magazine company (publishing Future Power), and a T-shirt business (Franklin Apparel). These businesses, however, reported large losses during the marriage. He also owned rental properties, but reported net losses from them. Ronna worked for Raleys and earned between $ 49,000 (in 1995, including sick pay) and $ 71,000 (in 1996) per year while married to defendant. Because of defendants losses, the couple jointly reported annual taxable income for the years 1994 through 1996 varying from $ 0 (in 1996) to $ 9,000 (in 1994).

In September 1996, defendant and Ronna obtained life insurance policies from Metropolitan Life. They purchased a $ 1 million term policy on defendant and a $ 750,000 universal life policy with an additional $ 250,000 accidental death benefit on Ronna. Defendants premium was $ 124 per month, while the semiannual premium for Ronnas coverage was $ 4,633.75. Defendant and Ronna also obtained life insurance from Farmers New World Life: a $ 750,000 universal life policy for each. The semiannual premium for this coverage was $ 6,000. Defendant and Ronna named each other as the primary beneficiary of the policies. Ronna was also covered by a $ 120,000 life insurance policy through Raleys under which the beneficiary would receive double the amount if she died as a result of an accident. Defendant and Michael Jr. were co-beneficiaries on the policy.

Consequently, Ronna was covered by almost $ 2 million dollars in case of accidental death. The coverage defendant and Ronna obtained in 1996 cost $ 22,755.50 per year. In 1996, Ronnas wages totaled $ 71,000 but the couples taxable income was $ 0.

Ronna told friends she and defendant were having problems in their marriage. In the summer of 1996, she was considering leaving defendant. She was frustrated over how much time defendant spent away from home. She talked to her father about the possibility of a divorce. On one occasion, Ronnas father saw Ronna hit defendant, who responded by grabbing her by the shoulders, pulling her up to his face, and warning: "Dont ever let that happen again." Ronna hesitated to go forward with divorce because she did not want to share custody of Michael Jr. As it was, the weekends were the only time she had with him.

Defendant heard a friend who had been through a divorce say that the court had ordered him to pay his ex-wife 78 percent of his gross income. Defendant said no one would ever do that to him. During this conversation, Ronna said she would just leave defendant, and defendant replied: "You ever do that to me, Id kill you." During a similar conversation about spousal support, defendant became indignant and said he would kill anyone that did that to him. His standard response to talk about Ronna leaving him was "Nobody ever leaves me" and "There is no way youre ever going to leave me. Its not going to happen."

Ronna wanted to retire from Raleys to spend more time with Michael Jr. She believed defendant should get a regular job instead of being a business entrepreneur. She told a friend she had given defendant an ultimatum, warning him that, if they had another child, she would retire and stay home.

In December 1996, defendant planned a snowmobiling trip to Bucks Lake in Plumas County for Ronna and him. For Christmas, defendant gave Ronna a ring and a snowmobile helmet. She became upset when she opened the helmet. Defendant urged her to try it on, but she resisted and cried during their ensuing verbal exchange. She told several people she did not want to go to Bucks Lake. She did not like the cold, was afraid of storms, and did not want to leave the baby. Defendant, however, encouraged her to go by buying her rings and flowers. The day before they left, she told her mother she had not been feeling well for the past week. She was on her period, suffered from cramps, and had a yeast infection.

Testimony Concerning Day of Victims Death

Defendant and Ronna stayed at Bucks Lake Lodge in Plumas County. On December 28, 1996, Ronnas 38th birthday, she and defendant went for a ride on a snowmobile defendant had purchased. Although defendant claimed Ronna was driving the snowmobile and he rode as a passenger behind her, witnesses who saw them on the snowmobile that day only saw defendant operating the snowmobile with Ronna riding as a passenger in front of him. It was raining, causing the snow on the ground to turn slushy. As a result of what defendant asserted was an accident, the snowmobile came to rest along the side of a road where there was a three-foot-deep puddle of slushy water.

Deborah and Eric Ingvoldsen were traveling on their snowmobiles when they noticed the Franklins snowmobile, upright, with the motor still running and the headlight on, stopped in the slushy water at the edge of the road. Just behind the snowmobile, defendant was sitting, immersed in the water up to his chest, leaning back against the snow bank. His head was straight, not leaning to either side. Mrs. Ingvoldsen got off her snowmobile and approached the Franklins snowmobile on foot. Although defendant was wearing a helmet, she could see that defendants eyes were closed and his face was flushed. After she yelled to defendant, with no response, Mrs. Ingvoldsen saw a yellow slicker under the water and a helmet floating in the water. Upon closer inspection, she saw Ronna under the water, her eyes wide open and her lips blue. With the help of her husband and Jeff Wisecarver, who had just arrived on the scene from the opposite direction, Mrs. Ingvoldsen pulled Ronna out of the water.

Defendants color was good, and steam was rising from his chest. Jay Grubbs arrived on the scene, and the three men pulled defendant from the water. Mr. Ingvoldsen took defendants helmet off and tried to feel a pulse, but he was unsuccessful because his hands were too cold. Defendant appeared to be unconscious, but his skin was slightly reddish. Even though he later realized he should have known defendant was alive by his skin coloring, Mr. Ingvoldsen began performing CPR on defendant. After defendant was given several chest compressions and forced breaths, his stomach growled and he coughed; however, he was not shivering. He responded when someone asked his name, and he indicated that his wife was there. Others arrived, having been summoned by Mrs. Ingvoldsen. They loaded defendant onto a sled behind a snowmobile. It appeared that defendant was conscious but slipping into unconsciousness.

Defendant was taken by sled to a cabin at Grubbs Cow Camp, which was about a quarter-mile from where he was found. En route, defendants leg slipped off the sled and bent back. Although it appeared to be painful, defendant did not react. Defendant was carried inside the cabin and his clothes were removed. There were no injuries. He mumbled and asked about his wife. Defendant was at the cabin for more than two hours, over which time his mental condition appeared to improve markedly. He conversed with the people at the cabin, telling them about his wife and son. He complained of back pain.

Meanwhile, Kevin and Scott Stevens were among the first people to arrive at the scene where defendant and Ronna were found in the water. Finding Ronna was unresponsive and had no pulse, they began administering CPR. They continued for about 20 minutes, until a trailer was rigged up to take her to Bucks Lake Lodge. On the trip to the lodge, CPR was continued. Although resuscitation efforts were continued at the lodge and on the way to the hospital, Ronna never responded and was pronounced dead. An autopsy revealed Ronnas cause of death was drowning. Several ribs had been broken during administration of CPR, but there were no other signs of trauma to the body.

After defendant began to get warm at the cabin, he was cheerful, even jovial, joking that his wife would be upset if she could see him with three women rubbing his arms and legs. He complained of back pain and numbness below the waist and became concerned when told Ronna had been seriously injured.

Defendant was taken to the hospital and arrived after Ronna had been pronounced dead. He had no obvious injury, but tests were ordered because he said his abdomen was slightly tender. When told that Ronna died, defendant cried. X-rays and a CAT scan revealed no abnormalities. The attending physician saw no injury that would explain a loss of consciousness. Defendant was admitted to the hospital for an overnight stay because he said he lost consciousness.

While still in the hospital, defendant initially told a California Highway Patrol officer he did not remember anything about the snowmobiling incident. He remembered having lunch, during which he and Ronna both consumed alcohol. They went for a ride on the snowmobile with Ronna riding in front and driving, he told the officer. Defendant believed they hit something but did not remember anything further.

Defendants Later Actions

On December 31, 1996, an investigator from the Plumas County Sheriffs Department interviewed defendant in Carmichael. Defendant said Ronna had been looking forward to going to Bucks Lake. The morning of the day she died, they rode the snowmobile then returned to the lodge for lunch. After lunch, they went to their room, played a board game called "For Lovers Only," made love, cleaned up the room, and went for another snowmobile ride. When asked about the nature of their relationship, defendant responded that it was special and Ronna was his best friend. Defendant told the investigator he was not involved with any other women.

In a conversation with Lea Ramsey, defendant expressed the concern that he may have contributed to Ronnas death. He said he was afraid he might have lain on her with his "big fat body." In January 1997, defendant called Barbara H., one of the women with whom he had an affair, and told her he was in trouble and his parents were spending a lot of money to get him out of trouble. Defendant told Lea Ramseys husband that he believed he may have been knocked unconscious and lain on top of Ronna. He pointed to a scratch on the top of his head and said he must have been hit there.

Two different people asked defendant if he and Ronna had any life insurance. Defendant, within two weeks after Ronnas death, told Ronnas brother they did not have any insurance because their application had been rejected due to Ronnas diabetes. He later told Ronnas brother they had some insurance. Defendant told Lea Ramsey he did not know whether they had insurance.

Investigation and Expert Witnesses

The brakes and clutch on the snowmobile were working normally. The tracks of the snowmobile were consistent with someone simply pulling over and stopping. There were no obstructions in the path of the snowmobile that would have caused an accident. Normally, if someone is in a snowmobiling accident, that person falls off to the side or goes over the handlebars. Defendant and Ronna, however, were found behind the snowmobile.

The tracks left by the snowmobile were straight, indicating the snowmobile had not suddenly turned one way or the other. The snowmobile was found upright and there was no indication the front skis on the snowmobile had left the ground, causing a loss of control. Also, if defendant and Ronna had come around the last curve at an excessive speed, they and the snowmobile would have gone off the other side of the road. It did not appear, from the physical evidence at the scene, that there had been a snowmobiling accident.

A search of the room defendant and Ronna had occupied at Bucks Lake Lodge revealed a towel with blood on it and feminine products with blood on them in the garbage can. Blood stains were also found on the sheets. There was no game called "For Lovers Only" as described by defendant in his statement. Shelle H., one of the women with whom defendant had an affair during his marriage to Ronna, testified that she and defendant went on a trip to San Francisco in December 1994. On that occasion, defendant brought a board game called "The Enchanted Evening," which they played before having sex.

A doctor who originally reviewed defendants CAT scan taken while he was in the hospital concluded there was a possible hemorrhagic contusion. However, an expert on CAT scans concluded that there were no abnormalities shown in the scan. The CAT scan revealed no brain injury.

An accident reconstruction expert, Garrison Kost, conducted tests using a snowmobile. Although he did not attempt to duplicate the exact conditions that existed for the Franklins, the expert concluded from the evidence given to him that the snowmobile was not traveling fast prior to stopping where defendant and Ronna were found. Consequently, the G-forces applied to the riders would not have been strong. A biomechanical engineer, Lawrence Thibault, testified as a prosecution expert that, if defendant had fallen off the snowmobile and struck his head on the snow with his helmet on, the impact would not have been sufficiently strong to cause a concussion. A defense expert testified, however, that the conclusion of the prosecutions expert was unreliable because it did not take into account whether defendant was ejected from the snowmobile.

A prosecution expert testified that a person has about 10 minutes in 32-degree water before he loses muscular coordination. A person defendants size, wearing a helmet, would not lose consciousness from body cooling due to being seated in cold water up to his chest for about 15 minutes. As the body temperature drops to 93 degrees, the victim cannot stop shivering unless warmed. Shivering also stops as severe hypothermia sets in. An unconscious person submerged in cold water would not be able to hold his head up straight. Many drownings in cold water are caused by aspiration of the cold water when the victim initially enters the water. However, it takes eight to ten seconds for the aspirated water to reach the brain, which is long enough to stand up. A defense expert testified that sometimes people die from shock when immersed in cold water, especially if the victim has a weak heart. Ronna, however, showed no signs of heart disease.

Additional factual details are included in the discussion of the issues defendant raises on appeal.

PROCEDURE

Defendant was arrested on March 17, 1999, on a charge that he raped Paula O. in Santa Clara County in September of 1998. On June 4, 1999, the Plumas County District Attorney filed a complaint charging defendant with the murder of Ronna, with financial gain and lying in wait special circumstance allegations. He was transported from Santa Clara County to Plumas County, where he appeared in court on September 7, 1999.

On October 27, 1999, defendant moved to recuse Plumas County District Attorney James Reichle and his office from this case. After a hearing, the trial court denied the motion to recuse the district attorney but, as detailed later, ordered that certain personnel in the office have no further participation in the case.

Following a preliminary hearing in January 2000, defendant was tried by jury. The trial began on April 17, 2000, and ended with a verdict finding defendant guilty as charged on August 18, 2000.

Defendant filed a motion for new trial, which the trial court denied. On December 8, 2000, the court sentenced defendant to an indeterminate term of life in state prison without the possibility of parole.

DISCUSSION

I

Motion for Change of Venue

Defendant moved for a change of venue. After holding a hearing and listening to the arguments of counsel, the trial court denied the motion. It determined defendant had not met his burden of establishing he could not get a fair and impartial trial in Plumas County. On appeal, defendant contends the trial court erred.

"Pursuant to [Penal Code] section 1033, subdivision (a), the court must grant a motion for change of venue if `there is a reasonable likelihood that a fair and impartial trial cannot be had in the county. The phrase `reasonable likelihood in this context `means something less than "more probable than not," and `something more than merely "possible." (People v. Bonin (1988) 46 Cal.3d 659, 673, 250 Cal. Rptr. 687, 758 P.2d 1217.) In ruling on such a motion, as to which defendant bears the burden of proof, the trial court considers as factors the gravity and nature of the crime, the extent and nature of the publicity, the size and nature of the community, the status of the victim, and the status of the accused. (People v. Edwards (1991) 54 Cal.3d 787, 807, 819 P.2d 436; People v. Cooper (1991) 53 Cal.3d 771, 805, 281 Cal. Rptr. 90, 809 P.2d 865; People v. Bonin, supra, 46 Cal.3d 659, 672-673.)

"On appeal after a judgment following the denial of a change of venue, the defendant must show both that the court erred in denying the change of venue motion, i.e., that at the time of the motion it was reasonably likely that a fair trial could not be had, and that the error was prejudicial, i.e., that it [is] reasonably likely that a fair trial was not in fact had. [Citations.] (People v. Edwards, supra, 54 Cal.3d 787, 807, italics added; People v. Cooper, supra, 53 Cal.3d 771, 805-806.)

"With regard to the first part of the showing required of a defendant on appeal, we employ a standard of de novo review of the trial courts ultimate determination of the reasonable likelihood of an unfair trial. (People v. Edwards, supra, 54 Cal.3d 787, 807; People v. Cooper, supra, 53 Cal.3d 771, 805-806; People v. Bonin, supra, 46 Cal.3d 659, 676-677.) This requires our independent determination of the weight of the five controlling factors described above. (People v. Bonin, supra , 46 Cal.3d 659, 676-677; People v. Balderas (1985) 41 Cal.3d 144, 177, 222 Cal. Rptr. 184, 711 P.2d 480.) With regard to the second part of the showing, in order to determine whether pretrial publicity had a prejudicial effect on the jury, we also examine the voir dire of the jurors. (People v. Howard (1992) 1 Cal.4th 1132, 1167, 824 P.2d 1315; People v. Anderson (1987) 43 Cal.3d 1104, 1131, 240 Cal. Rptr. 585, 742 P.2d 1306; People v. Balderas, supra, 41 Cal.3d 144, 177.)" (People v. Proctor (1992) 4 Cal.4th 499, 523-524, 842 P.2d 1100, brackets in original.)

A. Factors in Determining

Reasonable Likelihood of Unfair Trial

1. Gravity and Nature of the Offense

With respect to the gravity and nature of the offense, the trial court found that, despite the gravity of the offense, a murder with special circumstances, the nature of the offense was not particularly senseless, brutal, or pitiless. We agree. This case, which was not charged as a capital case, did not involve an offense the gravity and nature of which substantially necessitated a change of venue. (See People v. Adcox (1988) 47 Cal.3d 207, 231-234, 253 Cal. Rptr. 55, 763 P.2d 906.)

In People v. Adcox, the trial court in a capital case in Tuolumne County denied a motion for change of venue. The Supreme Court upheld the trial courts decision. (47 Cal.3d at pp. 231-232.) The defendant in Adcox, while on a camping trip to Tuolumne County, ambushed a fisherman from behind, shooting him in the head to take his money and car keys. (Id. at pp. 226-228.) The Supreme Court stated: "The nature and gravity of the offense — capital murder — must weigh heavily in our determination, for we have recognized that murder is a crime of the utmost gravity. However, the sensationalism inherent in all capital murder cases will not in and of itself necessitate a change of venue. We have recognized that [it] is . . . difficult to envision an eventual capital case which will not receive extensive media coverage, at least for a short period of time. If the early publicity attendant on a capital case alone suffices to raise a doubt as to the likelihood of a fair and impartial trial, a change of venue would perforce be required in every such case. [P] The peculiar facts or aspects of a crime which make it sensational, or otherwise bring it to the consciousness of the community, define its "nature". . . . Defendant states that the homicide involved in the present case, viewed broadly, was rather unremarkable. . . . He nevertheless asserts that, when viewed in context, the fact that the crime was committed in a wilderness area generated extraordinarily strong feelings of fear and vulnerability in rural Tuolumne County. . . . [P] Although this ambush of a fisherman was a senseless and pitiless murder, we observe that it was not unusually atrocious or as overly sensational as were the multiple and bizarre serial killings which were the object of media attention in [mass or serial killing cases]. Nor was it a crime involving sensational racial or sexual overtones." (Id. at pp. 231-232, italics and citations omitted.)

Although the facts of the case caused a stir in Plumas County, which in 2000 had a population of 20,824 (http://www.census.gov/population/cen2000/phc-t4/tab01.txt), the facts were not unusually atrocious or overly sensational and did not generate feelings of fear and vulnerability. The trial of a husband for killing his wife would be a newsworthy event in any county. Furthermore, this was not charged as a capital case. Accordingly, even though "murder is a crime of utmost gravity" (People v. Adcox, supra, 47 Cal.3d at p. 231), the offense in this case did not require a change of venue.

While dissenting from the judgment of death in Adcox, Justice Mosk noted: "It is, however, with some reluctance that I agree with the majority that the trial court did not err by denying defendants motion for change of venue. To hold otherwise on the relatively meager showing made by defendant would be tantamount to a determination that the residents of this states less populated counties cannot act as fair and impartial jurors in a capital trial. Such a determination would be unwarranted and unjustified." (47 Cal.3d at p. 276, dis. opn. of Mosk, J.)

2. Nature and Extent of News Coverage

Defendant presented evidence of more than 30 news stories concerning this case, from December 1996 to May 2000 (when the defense moved for change of venue), published in the local weeklies circulated in Plumas County. Although the articles contained some misinformation (for example, that Ronna died of a broken neck) and some facts not admissible in the criminal trial (such as rape allegations against defendant in a different county), most of what may be deemed prejudicial information was contained in the earlier articles, which appeared years before jury selection. Most of the articles, especially the later articles that appeared just before and during jury selection, simply reported what was happening in the case, and many of the articles reported the contentions being made by the defense.

In addition to the articles in the local newspapers, the Sacramento Bee published three articles, from December 1997 to February 2000, concerning this case. An article in 1997 appeared under the headline, "Widower sued over mysterious death." A 1999 story reported the Paula O. rape allegation. The jury questionnaires revealed, however, that only about 27 percent of the 358 prospective jurors read the Sacramento Bee regularly.

In the hearing on the motion for change of venue, defendant presented the testimony of Dr. Edward Bronson as an expert on whether defendant was likely to receive a fair trial in Plumas County. (See People v. Pride (1992) 3 Cal.4th 195, 225-226, 833 P.2d 643 [noting Dr. Bronson had been found biased in favor of change of venue].) Dr. Bronson, after reviewing the newspaper articles, concluded there was some prejudice to defendant but that, standing alone, the newspaper articles, in his opinion, presented "a very close call as to whether there was enough to justify a Change of Venue based on publicity alone."

The newspaper articles circulated in Plumas County, a small county, certainly had the effect of bringing this case to the attention of the countys residents; however, the articles were not of a nature as to lead the citizenry to prejudge the case. The small amount of misinformation and inadmissible facts appeared mainly in the earlier articles, long before jury selection, thereby reducing the potential for prejudice. (See People v. Adcox, supra, 47 Cal.3d at p. 232 [passage of time reduces potential prejudice].) The later articles simply reported the progress of the case and the contentions of the parties. While the newspaper coverage was extensive, its nature was not sufficiently prejudicial to establish that it was reasonably likely defendant would not receive a fair trial.

3. Size of the Community

Plumas County, as noted above, had a population of 20,824 in 2000. Since it is one of the more sparsely populated communities in California, the size of the community weighed in favor of a change of venue. That factor, however, is not determinative. (See People v. Adcox, supra, 47 Cal.3d at p. 233, fn. 7 [size of community not determinative without showing impartial panel cannot be convened].)

4. Status of the Defendant in the Community

The status of defendant in the community weighs against a change of venue. He was not a member of any group that aroused hostility in the community. Instead, "like many other nonresidents frequenting the area [for recreational purposes], defendant appears to have been relatively anonymous in the community." (See People v. Adcox, supra, 47 Cal.3d at p. 233.)

5. Popularity and Prominence of the Victim

The popularity and prominence of the victim also weighed against a change of venue. As was defendant, Ronna was relatively anonymous in the community, probably known only to those who met her in connection with her visit to Bucks Lake Lodge. The fact that her death left behind a motherless little child does not weigh in favor of a change of venue because that circumstance "would have struck the same sympathetic chord in any community." (See People v. Adcox, supra, 47 Cal.3d at p. 234.)

B. Reasonable Likelihood of Unfair Trial

On balance, only the size of the community and, perhaps, the extensive newspaper coverage weighed in favor of a change of venue. The status of defendant and the prominence and popularity of the victim in the community weighed against a change of venue. While murder is a serious offense, the nature of this murder was not sensational or unusually atrocious. Accordingly, we cannot say that, at the time of the motion for change of venue, it was reasonably likely defendant would receive an unfair trial. Having so concluded, we need not determine, for the purpose of reviewing the propriety of the trial courts denial of the motion for change of venue, whether it is reasonably likely defendant was not, in fact, given a fair trial.

Without doubt, there was a high rate of familiarity with this case in the community. "The controlling cases "cannot be made to stand for the proposition that juror exposure . . . to news accounts of the crime with which he is charged alone presumptively deprives the defendant of due process." [Citation.] . . . "It is sufficient if the juror can lay aside his impression or opinion and render a verdict based on the evidence presented in court." (Irvin v. Dowd (1961) 366 U.S. 717, 722-723 [6 L. Ed. 2d 751, 755-756, 81 S. Ct. 1639].) [Citation.]" (People v. Adcox, supra, 47 Cal.3d at p. 234.) As will be seen later in this opinion, there is no indication the jurors were unable to set aside prior impressions or opinions and render a verdict based on the facts and law. Accordingly, the trial court did not abuse its discretion in denying the motion for change of venue.

II

Defense Challenges for Cause

Defendant contends the trial court erred by denying his challenges of 11 prospective jurors for cause. Defendant asserts he was prejudiced by the denial of these challenges for cause because he used all of his peremptory challenges and there still remained in the box two jurors whom he had challenged for cause. He additionally expressed his dissatisfaction with the jury as seated. (See People v. Morris (1991) 53 Cal.3d 152, 184, 279 Cal. Rptr. 720, 807 P.2d 949 [requiring use of peremptory challenges and dissatisfaction with jury to claim erroneous denial of challenge for cause], disapproved on another point in People v. Stansbury (1995) 9 Cal.4th 824, 830, fn. 1, 889 P.2d 588.) We conclude the trial court did not err.

"A trial court should sustain a challenge for cause when a jurors views would prevent or substantially impair the performance of the jurors duties in accordance with the courts instructions and the jurors oath. (People v. Earp (1999) 20 Cal.4th 826, 853, 978 P.2d 15; People v. Mayfield [(1997)] 14 Cal.4th [668,] 727.) On appeal, we will uphold a trial courts ruling on a challenge for cause by either party if it is fairly supported by the record, accepting as binding the trial courts determination as to the prospective jurors true state of mind when the prospective juror has made statements that are conflicting or ambiguous. (People v. Mayfield, supra, 14 Cal.4th at p. 727; see also People v. Jenkins (2000) 22 Cal.4th 900, 987, 997 P.2d 1044; People v. Crittenden (1994) 9 Cal.4th 83, 121, 885 P.2d 887; People v. Mincey [(1992)] 2 Cal.4th [408,] 456-457.)" (People v. McDermott (2002) 28 Cal.4th 946, 981-982.)

None of defendants contentions concerning the trial courts denial of challenges for cause has merit. Indeed, virtually all of the contentions are frivolous.

A. Donna F. (Prospective Juror No. 008638)

Prospective juror Donna F. was questioned outside the presence of the other prospective jurors. She related an incident in which she was at a meeting where she overheard others talking about the case. Someone stated that her husband had been one of the people who went to the aid of defendant and Ronna. He had reported that defendant got out of the water and walked around without mentioning anything about his wife, whom they did not notice until later. There was also discussion concerning defendants affairs and the life insurance money. The consensus of those discussing the case was that defendant was guilty.

Concerning whether she could function as an impartial juror, this prospective jurors responses were equivocal. She expressed concern about her ability to be fair, but hoped that she could be. When the trial court asked if she could decide the case based on what she heard in the courtroom, she said she was not 100 percent sure. Finally, the prosecutor asked whether there was a significant possibility she would give weight to what she heard outside the courtroom. She responded: "I said I would try real hard not to let anything else influence me. I would do my best if I was a juror to put everything outside of my mind, but I cant say for sure that I could eliminate everything from my mind." She also said she would do her best to follow instructions.

The trial court denied defendants challenge for cause of prospective juror Donna F. On appeal, defendant asserts the denial of this challenge for cause deprived him of a fair trial by an impartial jury.

"As stated in People v. Linden (1959) 52 Cal.2d 1, 22, 338 P.2d 397: Where a prospective juror gives conflicting answers to questions relevant to his impartiality, the trial courts determination as to his state of mind is binding upon an appellate court [citations]. People v. Ghent (1987) 43 Cal.3d 739, 768, 239 Cal. Rptr. 82, 739 P.2d 1250 further declares that where equivocal or conflicting responses are elicited . . ., the trial courts determination to his true state of mind is binding on an appellate court." (People v. Bittaker (1989) 48 Cal.3d 1046, 1088-1089, 259 Cal. Rptr. 630, 774 P.2d 659.)

Here, prospective juror Donna F. expressed doubts about her ability to "eliminate everything from [her] mind." However, she asserted she would do her best to follow instructions and base her verdict on the evidence presented in the courtroom. There is sufficient evidence on this record to support the trial courts conclusion she would be an impartial juror. The version of facts she heard outside the courtroom was totally inconsistent with the undisputed evidence that defendant was found in the water and did not walk around and that Ronna was found by Mrs. Ingvoldsen almost simultaneously with the discovery of defendant. Therefore, the trial court, which was in a position to observe the demeanor of this prospective juror (see People v. Williams (1988) 199 Cal. App. 3d 469, 477-478, 245 Cal. Rptr. 61), was justified in concluding that her exposure to a conversation about this case outside the courtroom, which conversation was based on false facts, would not cause her to be impartial. The record supports the trial courts conclusion that she was sincere in her desire and would be successful in her effort to follow instructions and base her verdict on the evidence she heard in the courtroom.

B. Juror No. 10 (Prospective Juror No. 39965)

Juror No. 10, as the designation implies, eventually sat on the jury for defendants trial. Defendant challenged her for cause based solely on an answer in her questionnaire. The question was, "Do you think the criminal justice process in our Court is fair to all concerned?" She responded by putting an "x" on the line after "No." Thereafter, she wrote: "people with money seem to get away with more O.J. Simson [sic]." The trial court denied the challenge.

Defendant speculates Juror No. 10 may have used the trial "to help even the score and cure the injustice that she thought had been done in the Simpson case." This finds no support in the record. Indeed, there is nothing to suggest Juror No. 10 was anything but fair and impartial.

C. Alternate Juror No. 1 (Prospective Juror No. 46432)

Alternate Juror No. 1, who is a youth pastor, received a telephone call from a minister from another church some time during the jury selection process. The other minister informed Alternate Juror No. 1 that another prospective juror, who attended that ministers church, had said something disturbing about the trial. When Alternate Juror No. 1 asked what the problem was, the minister told him that another prospective juror had said he felt defendant was guilty and knew defendant was "going to fry." When the trial court asked Alternate Juror No. 1 whether this would affect him in any way, Alternate Juror No. 1 replied, "Oh, no." Alternate Juror No. 1 took a seat on the jury just before deliberations. Defendant contends the trial court improperly denied his challenge for cause of Alternate Juror No. 1 because this prospective juror asked the other minister about the problem and was told that the other prospective juror had said defendant was guilty and "going to fry." Defendant continues: "The salient fact is that Alternate [Juror] No. 1 was not merely passively exposed to improper information. He elicited the information which had not been volunteered to him, and offered to convey it to the jury commissioner."

We disagree with defendant concerning the reasonable inferences to be drawn from the conduct of Alternate Juror No. 1. There is nothing to suggest he was doing anything other than attempting to help the court obtain a fair and impartial jury. The fact that he heard about the stated opinion of another prospective juror, with no indication that the other prospective juror knew what he was talking about, did nothing to render Alternate Juror No. 1 unfair or partial.

D. Ruth M. (Prospective Juror No. 12738)

Prospective juror Ruth M., in response to questioning outside the presence of the other prospective jurors, stated that she had formed an opinion about this case from reading about it in the newspaper and from discussions. Something about this case bothered her, perhaps the money from the life insurance or the fact that defendant and the victim were married. Asked whether she would want someone with her frame of mind on the jury if she were being tried, she responded: "No, I dont think so, but I dont think I would be there." Nevertheless, Miller stated she would be able to make a decision based on evidence obtained in the courtroom. She believed she could be fair and impartial.

Defendant asserts, in essence, this prospective jurors statements that she believed she could be fair and impartial and that she would base her decision on the evidence presented in court were unreliable because she said she would not want someone with her frame of mind on the jury if she were being tried. Under these circumstances in which there are equivocal statements concerning the ability to serve, the trial courts determination concerning the prospective jurors true state of mind is binding on us. (People v. Bittaker, supra, 48 Cal.3d at pp. 1088-1089.) Here, the evidence is sufficient to sustain the trial courts denial of the challenge for cause.

E. Charles

G. (Prospective Juror No. 51561)

Similar to Juror No. 10, prospective juror Charles G. stated he believed wealthy defendants have an advantage in criminal proceedings. Defendant asserts that the denial of his challenge for cause of this prospective juror was error essentially for the same reasons discussed with respect to Juror No. 10, above. We reject this contention. The record does not establish prospective juror Charles G.s opinion about the criminal justice system would have made him an unfair or partial juror.

F. Betty C. (Prospective Juror No. 50275)

The trial court denied defendants challenge for cause of prospective juror Betty C., who had been the victim of several crimes and had a friend who was in prison for killing her husband. When defense counsel asked if she could put aside what had happened in her life, she replied: "I think I can put aside all of the things that have happened to me and listen solely to what is presented here and base my judgment on that." On appeal, defendant asserts this statement was not credible. We must, however, defer to the trial courts credibility determination. (See People v. Bittaker, supra, 48 Cal.3d at pp. 1088-1089.)

G. Kristy Z. (Prospective Juror No. 39878)

Prospective juror Kristy Z. had been a victim of abuse and heard that defendant abused Ronna. Other people expressed their opinions to her that defendant was guilty. She also heard a jail guard say he did not think defendant did it, but no one told her about any specific evidence. She said she could base her decision solely on what she heard in the courtroom. She added, however, that her initial impression of defendant was that he "looks like a killer." She reiterated, however, that she could be fair and impartial. The trial court denied defendants challenge for cause.

Once again, defendant challenges the credibility of the prospective juror. The totality of his argument as to this prospective juror is as follows: "It was an abuse of discretion to deny the challenge to [Kristy Z.], whose ability to judge the case impartially had been compromised from several quarters." This conclusionary statement about the prospective jurors ability to serve as a juror does not support a finding on appeal that the trial court erred.

H. Barbara B. (Prospective Juror No. 05434)

Prospective juror Barbara B. had several family members who worked in or around law enforcement. She apparently had a concern that, if there were a guilty verdict, some of the inmates at High Desert State Prison, where her son is a guard, might hear about it. She stated that this concern would not interfere with her exercise of judgment as a juror. The trial court believed this prospective jurors statement that she would be fair and impartial and denied defendants challenge for cause based on alignment with law enforcement.

On appeal, defendant argues this prospective juror could not possibly have been impartial, even if she thought she could be. We reject this argument because the record supports the trial courts determination that prospective juror Barbara B. was truthful in stating she could be fair and impartial. The record also supports the trial courts ultimate determination that she could, consistent with her statement, serve as a fair and impartial juror. Contrary to defendants implication, a prospective juror is not deemed unfair or partial as a matter of law merely because of a familial relationship with people who work in law enforcement or because of a concern that inmates, for example, might hear about a verdict and take action against the prospective jurors family member.

I. Louise W. (Prospective Juror No. 57227)

Although prospective juror Louise W. initially said she had formed an opinion about defendants guilt from reading newspapers, during jury selection she believed she could be fair and impartial and apply the presumption of innocence. Her primary concerns about serving on a jury were that she had to take her husband to the doctor in Daly City frequently, she experienced pain from sitting in the chairs during jury selection, and she cared for her eight-year-old grandson. Upon questioning, she opined the pain would probably put a burden on her ability to follow the testimony; however, she said the chairs in the jury box were more comfortable than the other chairs in the courtroom where she had been sitting and she could bring her own cushion. She also commented that her grandson could stay with a babysitter after school. The trial court denied defendants challenge for cause.

On appeal, defendant claims error because "the judges appreciation of [Louise W.s] circumstances was incomplete and inadequate. The judge thought [her] husbands medical condition was relevant only insofar as she needed to take him out of town for a medical appointment, and he was satisfied that the chairs the jurors would be sitting in would be more comfortable than the one [she] had to endure during voir dire." This cryptic explanation of the courts supposed error is inadequate to establish error. This prospective juror had concerns and the court worked through those concerns, ultimately finding, appropriately, that she should not be excused for cause, even though jury service might be somewhat inconvenient or uncomfortable.

J. John C. (Prospective Juror No. 06788)

Although prospective juror John C.s son-in-law was in prison and his sister-in-law had been attacked by a burglar who eventually got only probation, he indicated he could be fair and impartial. Defendant, however, challenged him for cause, arguing his answers were evasive and reflected his desire to say what the court wanted to hear. The trial court denied the challenge.

On appeal, defendant argues the challenge should have been successful because the prior prospective juror, Roy L., was challenged for the same reason and the court sustained that challenge. "The only apparent difference between the two situations," defendant argues, "is that the prosecutor concurred in the challenge against [Roy L.] but not in the challenge against [John C.]. It would be an abuse of discretion to defer decision of cause challenges to the prosecutor in that manner." This argument is completely without merit. The trial courts determination concerning a prospective jurors true state of mind is binding us, counsels arguments notwithstanding. (People v. Bittaker, supra, 48 Cal.3d at pp. 1088-1089.)

K. Lou B. (Prospective Juror No. 05742)

Prospective juror Lou B. informed the trial court she read about the case in the newspaper and that her husband had talked to one of the first responders to the scene at Bucks Lake. She also informed the court she was related to Rod D., a possible witness. However, she maintained her ability to be fair and impartial. Another prospective juror mentioned that Rod D. had talked about the case at a family dinner, but prospective juror Lou B. said she had not heard the remark. The trial court denied defendants challenge for cause.

Defendant asserts the denial was error because she declared her impartiality in response to a leading question and was not given a chance to explain or qualify it. This contention is frivolous. The record supports the trial courts finding of impartiality.

Since defendant fails to establish that his challenges for cause against these jurors were improperly denied, he fails to show he was prejudiced or that his constitutional rights were impaired.

III

Additional Peremptory Challenges

Defendant was given 20 peremptory challenges. When he had used all of them, he asked for five more. The trial court gave him one. Later, after the jury had been sworn but a juror was excused and another drawn into the box, the court gave defendant another peremptory challenge. The defense was also given 10 peremptory challenges for the 10 alternate juror seats. After using all of them, defendant asked for three additional peremptory challenges and was given one. Alternate Juror No. 1, whom defendant had unsuccessfully challenged for cause, eventually became part of the jury. Defendant asserts the denial of his requests for additional peremptory challenges denied him a fair trial.

The Supreme Court has stated: "We are of the opinion that to establish the constitutional entitlement to additional peremptory challenges argued for here, a criminal defendant must show at the very least that in the absence of such additional challenges he is reasonably likely to receive an unfair trial before a partial jury. (Cf. Sheppard v. Maxwell (1966) 384 U.S. 333, 363 [16 L. Ed. 2d 600, 620, 86 S. Ct. 1507] [where there is a reasonable likelihood that prejudicial news prior to trial will prevent a fair trial, (to protect the criminal defendants due process rights) the judge should continue the case until the threat abates, or transfer it to another county not so permeated with publicity].)" (People v. Bonin, supra, 46 Cal.3d at p. 679, overruled on another point in People v. Hill (1998) 17 Cal.4th 800, 823, fn. 1, 952 P.2d 673.)

As discussed above, defendant has failed to show that, as a result of the denial of the motion for change of venue and the jury selection process, he was reasonably likely to receive an unfair trial. (See People v. Bonin, supra, 46 Cal.3d at p. 679.) Hence, his contention the trial court erred by not giving him additional peremptory challenges is without merit.

IV

Prosecutions Use of Peremptory Challenges

"`The exercise of peremptory challenges to eliminate prospective jurors because of their race violates the federal Constitution (Batson v. Kentucky [(1986)] 476 U.S. 79, 89, 90 L. Ed. 2d 69, 106 S. Ct. 1712) and the California Constitution (People v. Wheeler [(1978)] 22 Cal.3d 258, 276-277, 148 Cal. Rptr. 890, 583 P.2d 748 . . .). (People v. Williams (1997) 16 Cal.4th 635, 663, 941 P.2d 752.) A party claiming an opponent improperly discriminated in the exercise of peremptory challenges must make a timely objection and demonstrate a strong likelihood that prospective jurors were excluded because of their race or other group association. (Id. at pp. 663-664; People v. Arias (1996) 13 Cal.4th 92, 134-135, 913 P.2d 980.)" (People v. McDermott, supra, 28 Cal.4th at p. 969.) Likewise, discrimination in the exercise of peremptory challenges based on gender violates a defendants right to a fair trial. (People v. Williams (2000) 78 Cal.App.4th 1118, 1125.)

Here, defendant made a Batson/Wheeler motion during the jury selection process, asserting the prosecution was using its peremptory challenges to remove men from the jury based solely on their gender. At the time, the prosecution had exercised eight peremptory challenges, six of them to remove men. The prosecutor argued, incorrectly, that male gender was not a recognizable class, but also asserted he was simply trying to select a suitable jury without regard to gender. Furthermore, the prosecutor noted that the defense had previously challenged several women that the prosecutor would also have challenged and that the panel was still weighted with eight men.

The trial court stated: "The Court finds that no prima facie case has been established. The excluded members, or the so-called excluded members are not part of a cognisable [sic] group; and its not likely at this time that the challenges are based on group association."

Defendant does not assert the trial court erred in finding no prima facie case had been established; instead, he asserts that the trial courts misperception concerning whether the male gender is a cognizable group for the purpose of applying Batson and Wheeler requires reversal. We disagree. Despite the courts misperception, precipitated by the prosecutions faulty legal argument, the court expressly found it was unlikely the challenges were based on that group association. Accordingly, it found, factually, that defendant had not established a prima facie case of challenges based on group association.

Defendant disputes this conclusion, asserting the court and counsel "had not discussed anything relevant to the factual question whether or not, given that men are a cognizable class, there was an inference that the prosecutors challenges were based on group association. So the judges statement cannot be reviewed as though it were a factual finding on a latter [sic] question." (Fn. omitted.) To the contrary, defendant argued the prosecutor challenged the six men based on group association. The prosecutor denied it and responded factually. The court, having seen jury selection to that point, found there was no factual basis for the motion. The trial courts factual finding there was no prima facie showing was proper.

Defendant further argues he made a later Batson/Wheeler motion that the court ignored and that the failure to rule on the motion is "per se reversible error." The record shows that, moments after the trial court denied defendants Batson/Wheeler motion, the following colloquy took place:

"[Defense Counsel]: I want to make the record that the last two challenges have been male, again, and renew my motion. [P] Additionally, I have a second problem. I understand today that there was a phone call — one of the ministers got a phone call

"[Prosecutor]: (Jurors name omitted # 46432) got a call from Mr. Finch.

"THE COURT: Where is he from, Quincy?

"[Prosecutor]: Peter Finch in Chester is the youth pastor who was on the record this morning; called (Jurors name omitted # 46432), who was a youth pastor saying, from Debbie, who I just discussed (Jurors name omitted # 46432) said (Jurors name omitted # 55474) said hes guilty and going to fry.

"[Defense Counsel]: Even if any of these — are any of these ministers are connected

"[Defense Counsel]: Okay, I just

"[Prosecutor]: Okay.

"[Defense Counsel]: I wanted to make my record also.

"THE COURT: All right. You have."

Immediately after this discussion, the court and counsel continued on with jury selection. On appeal, defendant asserts this record shows the trial court failed to rule on his second Batson/Wheeler motion, which requires reversal. Defendant misinterprets the record. Although the trial court did not use the word "denied," it is apparent that everyone involved understood the motion, made just moments after an identical motion, was denied. Defense counsel assumed so when he made the second motion, simply wanting "to make the record." Accordingly, we reject defendants contention the trial court did not rule on the second motion. Since he does not assert the second motion was improperly denied, we need not discuss the merits.

V

Motion to Recuse District Attorney

Defendant moved to recuse the district attorney, James Reichle, pursuant to Penal Code section 1424, which authorizes recusal if "the evidence shows that a conflict of interest exists that would render it unlikely that the defendant would receive a fair trial." (Pen. Code, § 1424, subd. (a)(1); see also Hambarian v. Superior Court (2002) 27 Cal.4th 826 (Hambarian ); People v. Eubanks (1996) 14 Cal.4th 580, 927 P.2d 310 (Eubanks).) The trial court denied the motion. Defendant asserts the denial was an abuse of discretion.

A. Facts From Hearing on Motion

The facts presented in the hearing on the motion to recuse the district attorney focused on two areas: (1) cooperation between the district attorney and the life insurance companies and (2) a relationship between an investigator for the district attorney and an alleged rape victim of defendant.

1. Cooperation with Insurance Companies

Metropolitan Life and Farmers New World Life hired an attorney, Margie Lariviere, in connection with litigation concerning payment on the policies they issued on Ronna Franklins life. She retained Exponent Failure Analysis Associates, a consulting firm, to do accident reconstruction and analysis. At the time of the motion to recuse the district attorney, Exponent had performed about $ 55,000 of work for the insurance companies. The district attorney contacted Lariviere and sought permission to use Exponents work product in the criminal investigation. Eventually, the district attorney met with Lariviere and Exponent employees working on the case. Lariviere and the district attorney agreed that Plumas County would retain Exponent separately, but that Exponent could rely in its investigation for the county on the work it did for the insurance companies.

The district attorney continued to cooperate with Lariviere and with members of Ronnas family in providing and receiving information. The district attorney gave Lariviere photographs of the helmets worn by defendant and Ronna. A member of the Plumas County Search and Rescue team accompanied Lariviere and Exponent employees when they conducted snowmobile tests. Lariviere was billed for "transportation and consulting services;" however, she testified that the search and rescue team member provided transportation services only.

Prosecutors from Plumas, Sacramento, and Santa Clara counties met to aid each other in their investigation of defendants activities. Lariviere was invited to this meeting in Sacramento during which information was exchanged.2. Relationship Between Investigator and Alleged VictimKris Beebe was the principal investigator on this case in the Plumas County District Attorneys office. In February 1999, Paula O. contacted Beebe and told him defendant raped her in Santa Clara County in September 1998. Within about one month after their first contact, Paula O. and Beebe became romantically involved. Beebe informed the district attorney of the relationship, and the district attorney excluded Beebe from further work on defendants case except for "chasing paper." It was expected that Paula O. would not be a witness in this case.

Paula O. also formed a friendship with Kathie Meads, another investigator in the district attorneys office. They never discussed defendants case.

B. The Trial Courts Ruling

The trial court denied defendants motion to recuse the district attorney. It determined that, with respect to the cooperation between the district attorney and the insurance companies, there was no conflict of interest. It found, on the other hand, that the relationship between Paula O. and Beebe created a conflict of interest because, even though Paula O. was not a victim in this case, she was an alleged victim of defendant and Beebe was a participant in the investigation and prosecution of defendant. The trial court additionally found the conflict did not require recusal because it did not render it unlikely defendant would receive a fair trial. The trial court ordered, however, that the district attorney use the state Department of Justice or a private investigator without connection with the district attorneys staff to engage in further investigation for the case.

C. Legal Analysis of Denial

"The standard for a motion to disqualify the prosecutor is set forth in Penal Code section 1424: The motion may not be granted unless the evidence shows that a conflict of interest exists that would render it unlikely that the defendant would receive a fair trial. [The Supreme Court] detailed the history of this statute and the associated legal principles in Eubanks, where [the court] explained that a conflict, for purposes of section 1424, "exists whenever the circumstances of a case evidence a reasonable possibility that the DAs office may not exercise its discretionary function in an evenhanded manner." (Eubanks, supra, 14 Cal.4th at p. 592, quoting People v. Conner (1983) 34 Cal.3d 141, 148, 193 Cal. Rptr. 148, 666 P.2d 5.) However, the conflict is disabling only if it is "so grave as to render it unlikely that defendant will receive fair treatment" during all portions of the criminal proceedings. (Eubanks, supra, at p. 594.) The statute thus articulates a two-part test: (i) is there a conflict of interest?; and (ii) is the conflict so severe as to disqualify the district attorney from acting? (Ibid.)" (Hambarian, supra, 27 Cal.4th at p. 833.) On appeal, we determine whether substantial evidence supports the trial courts factual findings and whether, based on those findings, the trial court abused its discretion in denying the motion. (People v. Breaux (1991) 1 Cal.4th 281, 293-294, 821 P.2d 585.) Here, the facts are largely undisputed.

Defendant relies primarily on Eubanks to assert the cooperation between the district attorney and the insurance companies created a conflict of interest. In Eubanks, the victim in a complex trade secrets theft prosecution contributed about $ 13,000 to the district attorney to fund the district attorneys investigation. The district attorney sent to counsel for the victim corporation the bill for services rendered by a technician who accompanied law enforcement in its search of the defendants residences and offices. Counsel paid the technician on behalf of the district attorney. Additionally, the victim paid for transcription services on behalf of the district attorney. (14 Cal.4th at pp. 585-587.) The Supreme Court found this created a conflict of interest for the district attorney. It concluded that "financial assistance of the sort received may create a legally cognizable conflict of interest for the prosecutor. . . . The trial court did not err in concluding these circumstances evidenced a reasonable possibility the prosecutor might not exercise his discretionary function in an evenhanded manner." (Id. at p. 598.)

The essential difference between Eubanks and this case is that, in Eubanks, the district attorneys acceptance of funds from the victim to finance the district attorneys own investigation and prosecution of the defendants made it appear the district attorney was beholden to the victim for that help. Here, the insurance companies did most of their investigation on their own and for their own benefit. When the district attorney learned of the work that had been done, he solicited access to the work product. Thereafter, the district attorney cooperated with the insurance companies and others in obtaining some of the evidence against defendant. This procedure did not create the same appearance and relationship as existed in Eubanks. Although the district attorney obtained work product for which the insurance companies had paid, that work was done originally for the benefit of the insurance companies, not for the district attorney. Furthermore, Eubanks stated that financial help in the investigation from a victim may create a conflict of interest, not that it always does. Here, the trial court did not abuse its discretion in determining that the nature of the relationship between the district attorney and the insurance companies did not establish a reasonable possibility the district attorney would not exercise his discretionary functions in an evenhanded manner.

With respect to the romantic relationship between Paula O. and Beebe, defendant asserts the denial of the recusal motion was an abuse of discretion because the district attorneys decision to file murder charges in Plumas County caused the Santa Clara County officials to forego prosecution there in order to send him to Plumas County to face the more serious charges. This, defendant asserts, deprived him of his right to a speedy trial in Santa Clara County and resulted in Paula O. not being required to testify. As did the trial court, we find no effect, from these conditions, of rendering it unlikely defendant would receive a fair trial in Plumas County.

Finally, defendant contends the small office nature of the Plumas County District Attorneys office (10 employees) made it impossible to screen Beebe and Meads off the case. We conclude the facts support the trial courts remedy for the conflict caused by the relationship with Paula O. The conflict was of a minimal nature, having to do with a person who was not a victim in this case. The district attorney was under order of the court concerning how to proceed — that is, with the services of the Department of Justice or a private investigator. We will not conclude the district attorney was incapable of obeying this order, especially without any indication that obedience was problematic. Defendant fails to establish that the trial courts denial of his motion to recuse the district attorney was error.

VI

Specification of Degree of Murder

The jury convicted defendant of murder, without a specification of the degree. The jury, however, also found true the special circumstance of lying in wait, which converts any murder into murder in the first degree. "All murder which is perpetrated by means of . . . lying in wait . . . is murder of the first degree." (Pen. Code, § 189.) Defendant contends that because the degree of murder was not specified we must reduce his conviction to second degree murder. He is wrong.

Penal Code section 1157 provides: "Whenever a defendant is convicted of a crime or attempt to commit a crime which is distinguished into degrees, the jury, or the court if a jury trial is waived, must find the degree of the crime or attempted crime of which he is guilty. Upon the failure of the jury or the court to so determine, the degree of the crime or attempted crime of which the defendant is guilty, shall be deemed to be of the lesser degree."

In People v. Mendoza (2000) 23 Cal.4th 896 (Mendoza), a jury convicted the defendants of murder without specifying the degree but also found true the special circumstance that it was committed during a robbery. (Id. at pp. 903-904.) On appeal, the defendants, citing Penal Code section 1157, contended their convictions had to be reduced to second degree murder because the jury did not specify the degree. The Supreme Court held: "We conclude that defendants were not convicted of a crime . . . which is distinguished into degrees within the plain and commonsense meaning of section 1157. . . . When the prosecution establishes that a defendant killed while committing one of the felonies section 189 lists, by operation of the statute the killing is deemed to be first degree murder as a matter of law. [Citations.] Thus, there are no degrees of such murders; as a matter of law, a conviction for a killing committed during a robbery or burglary can only be a conviction for first degree murder." (Id. at p. 908, italics in original.)

The same is true of murder committed by means of lying in wait; there are no degrees of such murders. Accordingly, judgment of conviction for first degree murder was properly entered.

Defendant argues that, even though the contemporaneous commission of a robbery and lying in wait are both circumstances that make any murder a murder in the first degree, we cannot rely on Mendoza because in that case the circumstance was the contemporaneous commission of a robbery while in this case it was lying in wait. He claims this is so because People v. Superior Court (Marks) (1991) 1 Cal.4th 56, 820 P.2d 613, a case decided by the Supreme Court before Mendoza, held that an unspecified murder was second degree murder despite a jury finding that the murder was committed for financial gain. (See also People v. Beamon (1973) 8 Cal.3d 625, 629, fn. 2, 105 Cal. Rptr. 681, 504 P.2d 905 [specification of degree of robbery].) Marks, however, relied on People v. McDonald (1984) 37 Cal.3d 351, 208 Cal. Rptr. 236, 690 P.2d 709, which the court in Mendoza expressly overruled. (Mendoza, supra, 23 Cal.4th at p. 914.) Accordingly, Marks is no longer authority for the proposition defendant tenders. The judgment, here, was proper.

VII

Sufficiency of Evidence

Defendant asserts the evidence is insufficient to support a homicide conviction. His assertion relies, however, on inferences in his favor. We conclude that, viewed properly, the evidence adequately supports the conviction.

"In reviewing the sufficiency of evidence on appeal, the court must review the `entire record in the light most favorable to the judgment to determine whether it contains substantial evidence — that is, evidence which is reasonable, credible, and of solid value — that would support a rational trier of fact in finding the [defendant guilty] beyond a reasonable doubt. (People v. Lewis (2001) 25 Cal.4th 610, 642; see People v. Johnson (1980) 26 Cal.3d 557, 578, 162 Cal. Rptr. 431, 606 P.2d 738.)" (People v. Michaels (2002) 28 Cal.4th 486, 515, brackets in original.) "The substantial evidence rule is generous to the respondent on appeal and permits a trier of fact to draw reasonable inferences from the evidence." (People v. Small (1988) 205 Cal. App. 3d 319, 325, 252 Cal. Rptr. 41.)

The evidence supports the following inferences: Defendant desired to take Ronnas life and, in the process, benefit financially from the large amount of insurance bought on her life. He planned a trip to the mountains to go snowmobiling. While there, he isolated Ronna from others by taking her out for a ride in foul weather. When they were away from others, he saw his opportunity and stopped the snowmobile next to a three-foot deep puddle of slushy water. From there, it was not difficult for this large and powerful man to submerge Ronna in the water until she died. He removed her helmet to make this easier. To cover up his crime, he sat down in the water, probably when he heard snowmobiles approaching. He feigned unconsciousness when the Ingvoldsens arrived, actually suffering some symptoms from the extreme cold of the water but no other injury.

Defendant asserts some of these inferences are unreasonable. For example, he focuses on the testimony of those who discovered defendant and Ronna and others who responded to the call for assistance, to the effect that defendant appeared to be unconscious and in need of CPR. There was conflicting evidence, however. Defendants color was good; steam was rising from his chest; he was sitting upright in the water; his physical condition was inconsistent with a concussion and unconsciousness; he responded rapidly to revival efforts. Defendant argues that there was evidence that an injury resulting in unconsciousness does not necessarily result in physical changes visible in a CAT scan. This statement, along with others, portrays the problem with defendants argument. He asks us to draw an inference in his favor, which we cannot do when an inference to the contrary is reasonable. The evidence concerning whether defendant was actually unconscious is conflicting. We must draw the inference in favor of the judgment that defendant was not unconscious.

Defendant attacks the conclusions of an expert accident reconstruction witness, arguing his tests were conducted under conditions different from those existing at the time of Ronnas death. This argument, however, did not preclude the jury from relying on the expert testimony to the extent it showed what may have happened or what likely did not happen on the day in question. A difference between the condition of the experiments and those prevailing at the time of Ronnas death does not require us to disregard completely the experts testimony. It was merely a matter for the jury to consider in deciding the value of the accident reconstruction experts testimony.

Defendant claims the condition of Ronnas body was not inconsistent with accidental drowning. Again, he seeks to draw an inference favorable to himself that, because the condition of the body was not inconsistent with accidental drowning, Ronnas death was accidental.

Defendant asserts we must conclude Ronna was driving the snowmobile just before her death because the only direct evidence on the issue was defendants statement that she was driving at the time. Defendants statement, however, is contradicted by the inference to be drawn from the testimony of others who saw only defendant driving when they observed the couple snowmobiling earlier. It is reasonable to infer that, if defendant was driving earlier, he was also driving just before Ronnas death.

During discussion between court and counsel and during closing argument, the prosecutor proffered the theory defendant intended to pull Ronnas body out of the water and push her and the snowmobile over an embankment but was thwarted in his plan by the arrival of the Ingvoldsens. Defendant asserts this theory was unreasonable and, therefore, the judgment was unsupported. This assertion is without merit because we review the evidence to determine whether it supports the homicide conviction, not whether it supports a theory of the prosecutor.

Finally, with respect to the sufficiency of the evidence to support a homicide conviction, defendant claims the doctrine of res ipsa loquitur — "that what happened to Ronna is the kind of occurrence which ordinarily does not happen in the absence of someones fault"— cannot be applied to conclude Ronnas death was a homicide or that defendant was the perpetrator. Our analysis does not invoke the res ipsa loquitur doctrine. Instead, it is based on the authorities defining the sufficiency of evidence test, as stated above, to criminal prosecutions.

Defendants contention the evidence was insufficient to support a homicide conviction fails in the face of the reasonable inferences drawn in favor of the judgment.

VIII

Defendants Extrajudicial Statements

Defendant asserts his conviction must be reversed because, contrary to the corpus delicti rule, he was convicted without evidence, other than his out-of-court statements, that Ronnas death resulted from some criminal agency. The assertion is without merit. In his opening brief, defendant also asserted that evidence of statements he made was improperly admitted before the prosecution presented evidence of a corpus delicti. Citing People v. Alvarez (2002) 27 Cal.4th 1161, which was issued after defendant filed his opening brief, he withdraws that contention.

"In every criminal trial, the prosecution must prove the corpus delicti, or the body of the crime itself — i.e., the fact of injury, loss, or harm, and the existence of a criminal agency as its cause. In California, it has traditionally been held, the prosecution cannot satisfy this burden by relying exclusively upon the extrajudicial statements, confessions, or admissions of the defendant." (People v. Alvarez, supra, 27 Cal.4th at pp. 1168-1169, italics in original.) "The independent proof may be circumstantial and need not be beyond a reasonable doubt, but is sufficient if it permits an inference of criminal conduct, even if a noncriminal explanation is also plausible. [Citations.] There is no requirement of independent evidence of every physical act constituting an element of an offense, so long as there is some slight or prima facie showing of injury, loss, or harm by a criminal agency. [Citation.] In every case, once the necessary quantum of independent evidence is present, the defendants extrajudicial statements may then be considered for their full value to strengthen the case on all issues. [Citations.]" (Id. at p. 1171.)

Defendant asserts the evidence concerning Ronnas death did not support the inference she died of a criminal agency. To the contrary, as discussed in the previous part concerning the sufficiency of the evidence to support a homicide conviction, the circumstances surrounding Ronnas death were sufficient to support a reasonable inference she died as a result of a criminal act and not by accident. The evidence was inconsistent with a snowmobiling accident; Ronna sustained no apparent injury that would have resulted in unconsciousness and drowning; the evidence concerning defendants physical condition when found is consistent with feigning unconsciousness. This evidence "permits an inference of criminal conduct, even if a noncriminal explanation is also plausible. [Citations.]" (People v. Alvarez, supra, 27 Cal.4th at p. 1171.)

IX

Evidence of Extramarital Affairs

Defendant asserts the evidence of his extramarital affairs was improperly admitted. We conclude the evidence was relevant to defendants motive and served to impeach defendants pretrial statements and show his consciousness of guilt. We further conclude the trial court did not abuse its discretion pursuant to Evidence Code section 352 and gave a proper limiting instruction to the jury concerning the evidence. Accordingly, defendants assertion of error is without merit.

We review the trial courts admission of evidence only for abuse of discretion. (People v. Alvarez (1996) 14 Cal.4th 155, 201, 926 P.2d 365.)

A. Motive

"Evidence of a persons character or a trait of his or her character (whether in the form of an opinion, evidence of reputation, or evidence of specific instances of his or her conduct) is inadmissible when offered to prove his or her conduct on a specified occasion." (Evid. Code, § 1101, subd. (a).) However, this section does not prohibit "the admission of evidence that a person committed a crime, civil wrong, or other act when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident . . . ) other than his or her disposition to commit such an act." (Evid. Code, § 1101, subd. (b).)

Here, the evidence of defendants extramarital affairs was introduced, in part, to show defendant had a motive to murder Ronna. Defendants lifestyle included multiple affairs, to which he devoted considerable time and money. Ronna represented an impediment to that lifestyle because she wanted to quit work, which accounted for a significant amount of the couples income. Alternatively, there was evidence that Ronna was contemplating divorce, which also would have deprived defendant of funds to maintain his lifestyle. Together with the evidence of the large life insurance policies purchased on Ronnas life, the evidence of defendants affairs tended to show defendants motive of killing Ronna to obtain the insurance proceeds and maintain his lifestyle. This is the motive theory on which the trial court allowed admission of the evidence.

In his opening brief, defendant attempts to build a straw man on the issue of admitting the evidence of extramarital affairs to show motive. He complains that the prosecution offered evidence that defendant "was addicted to a hedonistic lifestyle." He further argues that the prosecution never laid a foundation for evidence of a sexual addiction. Therefore, defendant continues, the trial court should have excluded the evidence or granted his later motion to strike the evidence. After the Attorney General points out in the respondents brief that, although evidence concerning sexual addiction was discussed outside the presence of the jury, no such evidence was presented to the jury, defendant replies: "Respondent rightly abandons the theory that this evidence was admissible to prove that [defendant] was a sex addict, a theory the prosecution argued before trial but never presented to the jury." We suppose this is a concession that the evidence of extramarital affairs was not admitted to show a sexual addiction and, therefore, the argument defendant makes on appeal about the evidence being inadmissible on that issue simply misses the obvious point that no such purpose was served in the admission of the evidence.

Defendant then contends the evidence was inadmissible on the issue of motive because "this was not a case such as People v. Miller (1966) 245 Cal. App. 2d 112, 53 Cal. Rptr. 720 . . . ." In Miller, the prosecution asserted the defendant killed her husband so she could marry another man, Arthwell Hayton. To support that theory, the prosecution presented evidence of an affair between the defendant and Hayton. According to the Court of Appeal, there was a "reasonable inference that if [defendant] were free to marry she believed Hayton would marry her." (Id. at p. 125.) The Court of Appeal stated that "evidence tending to show illicit relations of the accused with another is admissible to show lack of love and affection for the defendants lawful spouse. [Citation.]" (Id. at p. 144.) Contrary to defendants assertion in his opening brief, the defendant and Hayton did not "conspire to do away with the [defendants] spouse who [was] perceived to stand in the way of the new couples permanent bliss." Instead, the facts of Miller were that Hayton had lost interest in the defendant; nevertheless, the defendant continued to pursue Hayton. (Id. at pp. 124-125.)

Defendant, here, apparently relying on Miller, argues his commitment to the women with whom he had affairs was not sufficiently deep and long-lasting to permit evidence of those affairs to show defendants motive in killing Ronna. This argument fails because the motive theory was not that defendant wished to marry any particular woman; instead, he wished to obtain the funds to insure his continued opportunity, through virtually unlimited time and money resulting from his wifes murder, to carry on multiple affairs.

B. Impeachment

While Evidence Code section 1101 does not prohibit evidence of bad acts to show motive, as discussed above, it also does not prohibit evidence of bad acts to attack defendants credibility. (See Evid. Code, § 1101, subd. (c).) Defendant, in his statement to an investigator just three days after Ronna died, asserted he loved his wife, their relationship was special, and he was not involved with other women. The trial court admitted evidence of the extramarital affairs, in part, to impeach defendants credibility and establish that the false statements he made to the investigator showed a consciousness of guilt.

Again attempting to build a straw man, defendant asserts the evidence of extramarital affairs was not admissible for this purpose because it was not admitted for a similar purpose in People v. Kimble (1988) 44 Cal.3d 480, 244 Cal. Rptr. 148, 749 P.2d 803. In Kimble, the defendant, on appeal, contended the trial court erred in admitting the defendants statement to the police shortly after his arrest. The Supreme Court rejected this contention because the statement the defendant gave was shown to be false and therefore evinced a consciousness of guilt. (Id. at pp. 495-498.) Defendant asserts Kimble is inapposite because the defendant in Kimble argued the admission of his pretrial statement was error, while, here, defendant did not object to admission of his pretrial statement and does not contend its admission was error. Showing that Kimble is inapposite, however, does not establish that the evidence of defendants extramarital affairs was improperly admitted to impeach his pretrial statement and show consciousness of guilt.

Defendant continues, however, that admission of evidence of his extramarital affairs could not be based on his contrary pretrial statement because his answers to the investigators questions did not clearly establish he was denying extramarital affairs. This argument is incomplete and contrary to the text of the statement. Furthermore, the evidence of his extramarital affairs also showed, contrary to his statements, that he did not love his wife and their relationship was not "special."

During the interview, defendant told the investigator he loved his wife. When asked to describe his marriage, defendant responded: "We were special, shes the best thing that ever happened to me." Later in the interview, the following exchange took place:

"[Investigator]: . . . Please, dont be mad at me when I suggest this. Ok. One could look at this and say this happened. People are sitting there in the water. There was a large insurance policy. Is there a possibility that there was anyone else in your life that um,

"[Defendant]: No.

"[Investigator]: Ok. The one reason I suggest that— I come from all bases. And without being tacky, but I think that if I dont ask you this question, the it wont ——-certain things ——-for everyone that is concerned about this investigation. That there has been a suggestion that there was a possibility of another female. You had said emphatically that there is not.

"[Defendant]: There was nobody.

"[Investigator]: No, no affairs or anything that would cause your attention to go elsewhere?

"[Defendant]: I loved my wife. . . ."

We have no trouble concluding, as did the trial court, that this was a denial of involvement in extramarital affairs. In addition, his statements he loved his wife and that their relationship was "special" were shown to be false by the evidence of his extramarital affairs.

C. Evidence Code section 352

Defendant moved for exclusion of the evidence of his extramarital affairs pursuant to Evidence Code section 352. The trial court weighed the probative value of the evidence against the prejudice and admitted the evidence. On appeal, defendant asserts this was an abuse of discretion. We disagree.

"The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury." (Evid. Code, § 352.) "We apply the deferential abuse of discretion standard when reviewing a trial courts ruling under Evidence Code section 352. [Citation.] . . . For this purpose, prejudicial is not synonymous with damaging, but refers instead to evidence that "uniquely tends to evoke an emotional bias against defendant" without regard to its relevance on material issues. [Citations.]" (People v. Kipp (2001) 26 Cal.4th 1100, 1121.)

As we noted above, the evidence of defendants extramarital affairs was probative of his motive to kill Ronna and, when considered with his false statements, his consciousness of guilt. While there was some danger the jury would view defendant as an evil person as a result of his multiple affairs, the trial court instructed the jury that it could not use the fact of defendants extramarital affairs "to prove that the Defendant is a person of bad character or that he had a disposition to commit crimes." (See People v. Osband (1996) 13 Cal.4th 622, 714, 919 P.2d 640 [presumption that jurors obey instructions].) The trial court did not abuse its discretion in concluding the probative value of the evidence was not outweighed by a substantial danger of undue prejudice.

We also reject defendants assertion the trial court should have restricted the number of women who testified concerning the affairs. There was no abuse of discretion. The number of affairs helped establish defendants motive to kill Ronna to sustain his lifestyle.

Within his argument concerning abuse of discretion pursuant to Evidence Code section 352, defendant claims "the prosecutor elicited far more inadmissible bad character evidence from these witnesses than the mere fact of [defendants] adultery." We need not consider this further claim because it does not appear that a separate objection was made to the evidence on this ground (See Evid. Code, § 353, subd. (a) [no verdict set aside if no objection to evidence]), defendant provides no authority for the claim (People v. Callegri (1984) 154 Cal. App. 3d 856, 865, 202 Cal. Rptr. 109 [argument without authority deemed waived], disapproved on another point in People v. Bouzas (1991) 53 Cal.3d 467, 279 Cal. Rptr. 847, 807 P.2d 1076), and this contention is not a part of the Evidence Code section 352 contention of error, under which heading it appears. (See Opdyk v. California Horse Racing Bd. (1995) 34 Cal.App.4th 1826, 1830-1831, fn. 4 [contentions must be separately headed]. )

D. Federal Due Process

Defendant contends the admission of the extramarital affair evidence violated his federal due process rights. We disagree. The evidence was probative of motive and for impeachment and not unduly prejudicial. Defendants reliance on McKinney v. Rees (9th Cir. 1993) 993 F.2d 1378, a federal habeas corpus case, is unhelpful. In that case in which the victims throat was slit, the trial court admitted evidence that defendant, prior to the crime, possessed knives that were not involved in the crime. The federal court concluded the evidence only went to the issue of defendants character and that admission of this prior "bad act" evidence resulted in an unfair trial. (Id. at pp. 1381-1385.) Here, unlike in McKinney, the extramarital affair evidence was probative of both motive and consciousness of guilt. Accordingly, defendants claim of an unfair trial, relying on McKinney, fails.

X

Evidence of Victims State of Mind

Defendant moved to exclude evidence of Ronnas state of mind concerning the poor condition of her marriage, unsatisfactory relationship with defendant, and desire not to go on the trip to Bucks Lake. The trial court, however, allowed admission of the evidence because it contradicted defendants statement to investigators three days after Ronnas death and thus showed defendants consciousness of guilt. On appeal, defendant asserts the admission of the state of mind evidence was error because it was irrelevant. Alternatively, he claims the trial court abused its discretion in denying his motion to exclude the evidence pursuant to Evidence Code section 352. Finally, he contends admission of the evidence violated his federal confrontation and due process rights. These contentions are without merit.

A. Relevance

As noted in the statement of facts, above, Ronna was unhappy with her marriage to and relationship with defendant and had considered divorce. In addition, Ronna did not want to go on the trip to Bucks Lake.

"Section 1250, subdivision (a), of the Evidence Code creates an exception to the hearsay rule for evidence of a declarants statements regarding his or her then existing state of mind or emotion, when the declarants state of mind or emotion is at issue in the case, or when the evidence is offered to prove or explain the declarants acts or conduct. Under subdivision (b), however, evidence of a declarants statement of memory or belief is not admissible as proof of the fact remembered or believed. As [Supreme Court] cases have made clear, a victims out-of-court statements of fear of an accused are admissible under section 1250 only when the victims conduct in conformity with that fear is in dispute. Absent such dispute, the statements are irrelevant. [Citations.] [Citations.]" (People v. Ruiz (1988) 44 Cal.3d 589, 608, 244 Cal. Rptr. 200, 749 P.2d 854.)

Although defendant couches his argument in terms of relevance, he actually argues, relying on People v. Ruiz, supra, 44 Cal.3d 589, that evidence of Ronnas state of mind was inadmissible because it tended to show defendants state of mind or conduct, not Ronnas. Ruiz, however, is inapposite. In Ruiz, the Supreme Court found error because the prosecution introduced evidence of the victims state of mind to explain the defendants conduct. (Id. at p. 609.) Here, unlike the evidence in Ruiz, the evidence of Ronnas state of mind was introduced to impeach defendants pretrial statements concerning the state of his marriage and Ronnas desire to go to Bucks Lake. Defendant, himself, put Ronnas state of mind in issue by making the pretrial statements. The evidence of Ronnas state of mind was both relevant and admissible.

Defendant also attempts to construe his December 31, 1996, statement to the investigator in a way that makes it appear consistent with the evidence concerning Ronnas state of mind. This endeavor fails. During the interview, defendant said everything was going "super" and "wonderful" in his marriage and that Ronna had been looking forward to going to Bucks Lake. The evidence concerning Ronnas state of mind was to the contrary.

B. Evidence Code section 352

The trial court did not abuse its discretion in admitting the evidence of Ronnas state of mind over defendants Evidence Code section 352 objection. The evidence was probative in that it established defendant attempted to exculpate himself with untruthful statements shortly after Ronnas death, thereby showing his consciousness of guilt. The evidence was highly probative and not unduly prejudicial. While it tended to show defendant and Ronna were not happily married, defendant put that condition at issue by claiming, in essence, that they were happily married. Unlike the damning evidence in People v. Deeney (1983) 145 Cal. App. 3d 647, 193 Cal. Rptr. 608 that the defendant had abused his wife in the two weeks prior to her death, the evidence here did not create a significant risk the jury would use the evidence to infer defendant killed Ronna based on its impression of defendants character.

C. Violation of Confrontation and Due Process Rights

Defendant contends admission of the evidence of Ronnas state of mind violated his federal confrontation and due process rights because the hearsay exception for state of mind is not a firmly rooted hearsay exception and the statements were unreliable. (See Ohio v. Roberts (1980) 448 U.S. 56, 65-66 [65 L. Ed. 2d 597, 607-608, 100 S. Ct. 2531 [firmly rooted hearsay exceptions do not violate confrontation clause].) The California Supreme Court has rejected this contention. (People v. Majors (1998) 18 Cal.4th 385, 405, 956 P.2d 1137 [state of mind exception is firmly rooted].) Accordingly, we may infer the hearsay statements were reliable and their admission did not violate defendants confrontation and due process rights. (Ohio v. Roberts, supra, at pp. 65-66.)

D. Prejudice

Under the heading "Prejudice," in connection with the admission of evidence concerning Ronnas state of mind, defendant asserts the trial court failed to give a mandatory limiting instruction concerning this evidence. Since we find no error, we need not consider whether the asserted error in admitting the evidence was prejudicial. In any event, defendant was not prejudiced by the failure to give the instruction.

The evidence of Ronnas state of mind was admissible to prove her state of mind on the poor status of her marriage and relationship with defendant and her desire not to go to Bucks Lake because defendant made her state of mind an issue by claiming they were happily married and that she wanted to go to Bucks Lake. Her statements concerning her state of mind could be considered for the truth of the matter stated. (Evid. Code, § 1250, subd. (a).) Other statements Ronna made that were not direct declarations of her state of mind but, instead, were circumstantial evidence of her state of mind (for example, her statement that she did not want to try on the helmet defendant gave her for Christmas, as circumstantial evidence she did not want to go to Bucks Lake) could not be considered for the truth of the matter asserted.

Defendant requested a limiting instruction concerning the state of mind evidence. While the court and the prosecutor agreed it would be appropriate, no instruction was given. Apparently, the matter was forgotten. Because defendant requested it, the trial court should have given a limiting instruction concerning the use of the state of mind evidence. (See Evid. Code, § 355 [requiring requested instruction on limited admissibility of evidence].) Nevertheless, the failure to give the instruction was harmless because it is not reasonably probable that a result more favorable to defendant would have occurred if the limiting instruction had been given. (See People v. Wade (1996) 48 Cal.App.4th 460, 470.)

On the issue of prejudice, defendant asserts: "Rather than try to figure out what happened in the cold rain on December 28, a juror would find it far easier to decide the case based on, for instance, the irrelevant image of a distraught Ronna lying in a hospital bed two years earlier, complaining to her father that [defendant] didnt visit her very often, and when he did he was suntanned and wearing new clothes." We disagree. While the evidence introduced concerning Ronnas state of mind tended to cast defendant in a bad light as, perhaps, an insensitive or inattentive husband, it did not brand him a murderer. There is no reason to believe the jury did as defendant speculates and disregarded the evidence of what happened at Bucks Lake, convicting defendant instead because of its opinion concerning his character. Admission of the state of mind evidence was proper, and the failure to give a limiting instruction was harmless.

XI

Income Tax Evidence

At trial, defendant claimed his income tax returns were privileged. The court overruled his objection and allowed admission of the returns. On appeal, defendant renews his contention the returns were privileged and should not have been admitted.

Section 19542 of the Revenue and Taxation Code makes it a misdemeanor for certain administrative officers to disclose information from a tax return. The Supreme Court has interpreted this section "to establish an implied privilege against forced disclosure in civil discovery proceedings." (Schnabel v. Superior Court (1993) 5 Cal.4th 704, 719, 854 P.2d 1117; see also Aday v. Superior Court (1961) 55 Cal.2d 789, 796-797, 13 Cal. Rptr. 415, 362 P.2d 47 [applying implied privilege in criminal proceeding].) "The purpose of the statute is to facilitate tax enforcement by encouraging a taxpayer to make full and truthful declarations in his return, without fear that his statements will be revealed or used against him for other purposes. If the information can be secured by forcing the taxpayer to produce a copy of his return, the primary legislative purpose of the secrecy provisions will be defeated. The effect of the statutory prohibition is to render the returns privileged, and the privilege should not be nullified by permitting third parties to obtain the information by adopting the indirect procedure of demanding copies of the tax returns. [Citation.]" (Schnabel v. Superior Court, supra, at p. 719.)

In Schnabel v. Superior Court, supra, 5 Cal.4th 704, a marital dissolution action, the wife sought to discover the corporate tax returns of a close corporation in which she and the husband owned 30 percent of the stock. After the trial court ruled in favor of discovery of the returns, the Supreme Court held that the wife was entitled to the tax returns. The court opined that tax returns are not absolutely privileged and that the corporation did not have a readily ascertainable market value. "These facts, combined with the legislatively declared public policy in favor of full disclosure in a marital dissolution proceeding, warrant an exception to the privilege in this case limited to those tax returns that are reasonably related to the purpose for which they are sought." (Id. at p. 722.)

Here, the trial court ruled that defendants income was relevant in this murder for financial gain prosecution and it is in the public interest to allow the tax return evidence. It further found that the returns were joint and, therefore, defendant could not claim the privilege because Ronnas name was on them. We agree with the trial court that the tax returns were not privileged.

As in Schnabel in which it was found there is a legislatively declared public policy in favor of full disclosure of material relevant to the proceedings, there is a constitutionally founded public policy in favor of full admissibility of relevant evidence in a criminal prosecution. Section 28(d) of article I of the California Constitution declares: "Relevant evidence shall not be excluded in any criminal proceeding . . . ." This provision arguably does not apply directly to overcome the privilege in this case because section 28(d) does not overcome "any existing statutory rule of evidence relating to privilege . . . ." While the tax return privilege is implied in statute (Schnabel v. Superior Court, supra, 5 Cal.4th at p. 720, fn. 4; see also Webb v. Standard Oil Co. (1957) 49 Cal.2d 509, 513, 319 P.2d 621), it is subject to public policy exceptions, and full admissibility of relevant evidence in criminal proceedings is the public policy of this state. Furthermore, as the trial court noted, these were not simply defendants tax returns. They were joint income tax returns with Ronna. Therefore, his interest in keeping the returns confidential is reduced by the fact they were also Ronnas returns. Accordingly, the trial court did not err in admitting the tax returns.

Even were we to find error in the introduction of the returns, however, we would find it harmless. The prosecution would have been free to introduce into evidence the underlying records and data that went into preparation of the tax returns. (See Hogoboom & King, Cal. Practice Guide: Family Law (The Rutter Group 2002) P 11:470, p. 11-102.) Indeed, the trial court admitted evidence received from defendants bookkeeper for the same years. Furthermore, there was other evidence concerning defendants employment or lack thereof during the year before Ronnas death. Therefore, it is not reasonably probable that a result more favor to defendant would have occurred without the tax return evidence. (People v. Watson (1956) 46 Cal.2d 818, 836, 299 P.2d 243.)

XII

Foundation for Expert Opinion

Defendant objected to the testimony of two expert witnesses, Garrison Kost, a specialist in accident reconstruction, and Lawrence Thibault, a biomechanical engineer. Kost testified concerning the speed the snowmobile had been traveling and the G-forces applied to the riders. The significance of Kosts testimony was that, considering the evidence gathered at the scene of Ronnas death and experiments conducted by Kost using a snowmobile to measure distances to slow down and stop, defendant and Ronna were not traveling very fast before the snowmobile came to a stop next to the slushy water. Thibault testified concerning the force of the impact applied to defendant and Ronna and, building on Kosts conclusions, determined that the force of impact from falling from the snowmobile would have been insufficient to render a person unconscious.

Because defendant does not assert Kost and Thibault lacked qualifications to testify as experts, we need not discuss their background and experience. Instead, defendant claims Kosts testimony should have been excluded because the conditions under which he performed the tests were too dissimilar to the conditions prevailing at the time of Ronnas death. He further contends Thibaults testimony should not have been admitted because it relied, for a foundation, on the conclusions of Kost. As was established at the Evidence Code section 402 hearing concerning admissibility of Kosts testimony, the experiments he performed were done with a snowmobile other than defendants. Also, while the experiments were done in the vicinity of the site of Ronnas death and approximately the same time of year, they were done when the snow was not wet from rain.

"`A person is qualified to testify as an expert if he has special knowledge, skill, experience, training, or education sufficient to qualify him as an expert on the subject to which his testimony relates. (Evid. Code, § 720, subd. (a).) An expert witnesss testimony in the form of an opinion is limited to a subject that is sufficiently beyond common experience that the opinion of an expert would assist the trier of fact . . . . (Evid. Code, § 801, subd. (a).) A claim that expert opinion evidence improperly has been admitted is reviewed on appeal for abuse of discretion. [Citation.]" (People v. Catlin (2001) 26 Cal.4th 81, 131.)

Defendant relies primarily on People v. Roehler (1985) 167 Cal. App. 3d 353, at pages 385 to 391, 213 Cal. Rptr. 353. In Roehler, the prosecution presented evidence of an experiment done by an expert to establish that a death was not accidental. The Court of Appeal upheld the admission of the results of the experiment because it was done under "substantially similar conditions" and, therefore, was relevant to the issue presented in the case. (Id. at pp. 386-387.) The Roehler court cautioned that "substantially similar does not mean precise duplication." (Id. at p. 387.) From Roehler, we see that the requirement that an experiment be done under substantially similar circumstances is based on the requirement that evidence be relevant to be admissible. An experiment not done under substantially similar conditions is not relevant because it does not have a tendency to prove or disprove a disputed fact. (Id. at p. 386; see also Evid. Code, § 210 [defining relevant evidence].)

When questioned concerning the dissimilarity between the snow conditions when the experiment was done and the wet snow when Ronna died, Kost replied that the presence of water in the snow would not have a significant effect on the calculations he presented. Even though the snow conditions were different and a different snowmobile was used for the experimentation, the conditions were not sufficiently dissimilar as to make the results of the experimentation irrelevant; instead, the difference went to the weight of the evidence, a matter that was argued to the jury.

Defendant also claims Kosts testimony should have been excluded because it "failed the Kelly-Frye reliability standard." (People v. Kelly 1976) 17 Cal.3d 24, 30-32; Frye v. United States (D.C. Cir. 1923) 54 App. D.C. 46, 293 F. 1013.) The basis for this contention is not that the experts relied on new, unaccepted scientific technique to arrive at their conclusions, but, instead, that there were too many unknown variables involved in what happened the day of Ronnas death to form a basis for applying the scientific technique. This is not a proper argument for exclusion of expert testimony under the Kelly-Frye line of cases. Those cases require exclusion only if the scientific technique is novel and unaccepted. (See People v. Stoll (1989) 49 Cal.3d 1136, 1161, 265 Cal. Rptr. 111, 783 P.2d 698.) The trial court properly overruled defendants Kelly-Frye objections.

Other than the use of Kosts testimony as a foundation for Thibaults conclusions concerning the likelihood that the impact of falling off the snowmobile resulted in unconsciousness, defendant makes no further argument in his opening brief that Thibaults testimony should have been excluded. Accordingly, since Kosts testimony was properly admitted, Thibaults testimony likewise was properly admitted.

XIII

Redaction of Defense Videotape

Defendant proffered as evidence a videotape of two people riding a snowmobile to show that having a large person on the back of the snowmobile can cause the snowmobile to tip back, under which circumstances it is more difficult to control the machine. The trial court allowed admission only of a portion of the videotape. On appeal, defendant asserts the redaction of the videotape constituted prejudicial error. We disagree.

The tape that was shown to the jury, which appears to be a redacted version of another tape, shows a demonstration filmed at a golf course in Sacramento in August 2000. The working parts of the snowmobile are shown, after which a man rides the snowmobile across the grass. When he accelerates rapidly, the front skis of the snowmobile lift off the ground.

The unredacted videotape shows, in addition to what the jury saw, more extensive footage of the workings of the snowmobile, views of the golf course, and two men riding the snowmobile. The man riding on the back is a bigger man and weights are bound at his waist to make him heavier. As they rapidly accelerate, the front skis of the snowmobile lift off the ground. This activity, however, does not cause the riders to fall off. A person on the tape shows that, even though the front skis lifted off the ground during acceleration, there was no damage to the grass.

The only indication that the videotape was redacted by the trial court appears in a settled statement after trial, as follows: "During the defense case in chief, defense counsel proffered a video tape of snowmobile acceleration tests done by Dick DeRosa, builder of the snowmobile on which [defendant and Ronna] were riding at the time of the incident. The proffered video tape was marked Defendants Exhibit YX5 at the hearing on August 17, 2001. The Court allowed the defense to play only a portion of the video tape for the jury. The portion played for the jury is marked Defendants VX5. The portion not played for the jury included a section showing the snowmobile being operated with two riders, one of them a very large man, similar to the weighting of the Franklin snowmobile at the time of the incident." Neither the record nor the settled statement gives us any clue as to why the redaction took place. Indeed, it is not even clear that the court did not allow the defense to play for the jury the portion of the videotape with two riders on the snowmobile.

On appeal, we review the trial courts ruling concerning admission of evidence for abuse of discretion only. (People v. Waidla (2000) 22 Cal.4th 690, 717-718, 996 P.2d 46.) Assuming, for the purpose of argument, that the trial court did not allow the defense to show the portion of the tape showing two riders on the snowmobile, the redaction did not constitute an abuse of discretion.

The demonstration on the videotape took place in the summer on grass in Sacramento, not in snow. While it shows the front skis lifting off the ground when the driver, with a passenger, accelerates rapidly, the front skis also lifted off the ground under conditions of rapid acceleration with only one rider. Furthermore, the demonstration does not show the riders falling off the snowmobile as a result of rapid acceleration or any other circumstance.

The jury had ample evidence to credit defendants theory of an accident if it had found that theory creditable considering all of the evidence. The man who built the Franklins snowmobile and prepared the videotape testified that when there is extra weight in the back, acceleration causes the front skis to lift. Accordingly, since the demonstration was done under conditions grossly dissimilar to those prevailing at the time of Ronnas death and the videotape would have been merely cumulative on the point defendant sought to make, the trial court did not abuse its discretion in redacting the videotape.

Before we move to the next point, we note the Attorney General asserts defendant waived this contention because the record does not reflect defendant objected to showing only a portion of the videotape. We disagree. Since defendant proffered the entire tape as evidence, there was no need to object to the redaction. (See Evid. Code, § 354 [offer of proof preserves issue of exclusion for appeal].)

XIV

Rebuttal

Evidence

Defendant asserts the trial court abused its discretion by allowing the prosecution, on rebuttal, to show the jury a videotape of people voluntarily jumping into cold water. He asserts the evidence should not have been admitted because it showed circumstances too dissimilar to Ronnas death, "violated section 352 of the Evidence Code," and lacked scientific reliability under Kelly-Frye. We disagree.

The defenses theory of Ronnas death was that, as a result of an accident, Ronna was suddenly and unexpectedly thrown into the cold water and drowned. In support of this theory, defendant presented expert testimony from Dr. Eric Weiss, who testified that people can die soon after being immersed in very cold water because they hyperventilate or the heart stops or develops a fatal irregularity. Indeed, the doctors testimony, supported by the showing of a documentary he was involved in producing, was stark concerning a persons chances of surviving cold water immersion. He opined: "Hypothermia or cooling of the core is your least worry, because many people are going to die before they even have a chance to drop their temperature one degree, because of the — because of all the cold shock, the effect on the heart, the effect on the breathing, and the effect on the brain." The defense was also allowed to introduce, during Dr. Weisss testimony, a dramatic film reenacting the sinking of the Titanic and a videotape of people who survived a airplane accident in cold water.

In rebuttal and over defendants objection, the prosecution presented the testimony of Walter Goedecke and showed the jury a videotape of people jumping into cold water, mostly without injurious effects. The videotape, consistent with Goedeckes testimony, shows excerpts from recreational activities in which the participants jump into extremely cold water, outside, in the winter. While the many participants react in various ways, few seem to be in danger physically. At one of the events, divers in protective suits are standing by to assist any participant in peril, but the divers are not needed. One of the events appears to be sponsored by a radio station. Goedecke testified that, even though he had been involved in many of these events, he had seen people need assistance only on a few occasions. This anecdotal evidence, that cold water immersion is not as dangerous as the defense experts testimony made it sound, was proper rebuttal.

Defendants contention the circumstances shown in the videotape were too dissimilar to Ronnas death is based on the fact that the participants on the videotape immersed themselves voluntarily. Whether the circumstances are too dissimilar is a matter of trial court discretion, and we will not disturb that exercise of discretion absent abuse. (See People v. Waidla, supra, 22 Cal.4th at pp. 717-718 [admissibility of evidence subject to trial court discretion].) In light of the defense experts testimony concerning cold water immersion, it was not an abuse of discretion to allow the prosecution to present evidence of examples of cold water immersion without injurious effects. That the immersion examples in the videotape were voluntary goes to the weight, not to the relevance and admissibility, of the evidence.

Defendant argues that "even if [the evidence] had minimal probative value, that value was far outweighed by the probability that it would confuse the issues and mislead the jury into believing that it actually did shed significant light on the circumstances of Ronnas demise." To the contrary, the videotape was unlikely to confuse or mislead the jury. It simply served to rebut the defense experts testimony.

Finally, we reject defendants contention that the prosecutions rebuttal testimony and supporting videotape concerning cold water immersion was improperly admitted because it was not shown to be scientifically reliable under the Kelly-Frye standard. That standard did not apply because there was no novel or unaccepted scientific technique involved. (See People v. Stoll, supra, 49 Cal.3d at p. 1161.) It was merely anecdotal evidence that not everyone reacts to cold water immersion with the same dire consequences discussed by the defenses expert.

XV

Exclusion of Defense Evidence

Defendant asserts the trial court erred by excluding evidence from Dr. Weiss concerning instances in which people drowned or nearly drowned in shallow water. The contention is without merit because the evidence was hearsay and was not shown to be of a type reasonably relied on by experts in forming an opinion.

Discussion concerning this matter in the trial court was made a part of the record on appeal in the settled statement, as follows: "In chambers, defense counsel made an offer of proof that Dr. Eric Weiss would testify to various specific instances in which people either drowned or nearly drowned in shallow or shallow and cold water. One such instance involved a friend of Dr. Weiss who was participating in a kayak race attended by Dr. Weiss; Dr. Weiss eventually testified to this incident on cross-examination. Dr. Weiss also proposed to testify about a number of other such incidents which had been discussed at professional conferences which he had attended, with the discussion based on sources of information other than official reports. The District Attorney objected to this evidence as multiple hearsay, and because it was not based on information of a type reasonably relied upon by experts. The Court sustained the objection."

"Expert testimony may . . . be premised on material that is not admitted into evidence so long as it is material of a type that is reasonably relied upon by experts in the particular field in forming their opinions. (Evid. Code, § 801, subd. (b); [citations].) Of course, any material that forms the basis of an experts opinion testimony must be reliable. [Citation.] For the law does not accord to the experts opinion the same degree of credence or integrity as it does the data underlying the opinion. Like a house built on sand, the experts opinion is no better than the facts on which it is based. [Citation.] [P] So long as this threshold requirement of reliability is satisfied, even matter that is ordinarily inadmissible can form the proper basis for an experts opinion testimony. [Citations.] And because Evidence Code section 802 allows an expert witness to state on direct examination the reasons for his opinion and the matter . . . upon which it is based, an expert witness whose opinion is based on such inadmissible matter can, when testifying, describe the material that forms the basis of the opinion. [Citations.]" (People v. Gardeley (1996) 14 Cal.4th 605, 618-619, 927 P.2d 713, italics in original.)

Here, nothing in the record establishes that discussion concerning instances of shallow water drowning is material of a type that is reasonably relied upon by experts in the particular field in forming their opinions. The settled statement does not so state. Instead of showing that the trial court abused its discretion in excluding the evidence by bringing our attention to where in the record this is established, defendant states: "The only evidence in the record concerning the reasonable sources of information for experts on cold-water immersion was the proffer that Dr. Weiss and his colleagues in fact relied on this information. The judge found Dr. Weiss qualified to testify as an expert; implicit in that finding is a belief that the doctor knows what is and is not reasonable to rely upon in forming and rendering opinions in the area of his expertise." (Citation omitted.)

This argument overstates the record. The settled statement avers only that the evidence was being proffered, not that Dr. Weiss believed it to be a reasonable basis for expert conclusions. Furthermore, while the settled statement reflects that Dr. Weiss proposed to testify concerning the shallow water drowning incidents he heard about, we will not presume the doctor was aware of the rules of evidence and had in mind the legal threshold for reliance on the hearsay evidence to form an expert opinion. Accordingly, the record does not support defendants argument the hearsay evidence concerning instances of shallow water drowning was improperly excluded.

XVI

Expert Evidence Concerning Adultery and Homicide

As noted in part IX, ante, the trial court properly admitted evidence of defendants extramarital affairs to show his motive to kill Ronna for financial gain and to impeach his pretrial statements about having a happy marriage, thus showing his consciousness of guilt. Defendant, for his part, proffered expert testimony that adulterous husbands generally do not kill their wives. He claims this evidence was necessary to rebut the prosecutions argument that defendants extramarital affairs constituted circumstantial evidence he killed Ronna. Not only does he assert that exclusion was an abuse of discretion, he also claims it violated his constitutional due process rights. We conclude that, if the expert testimony was relevant at all, the trial court did not abuse its discretion or violate defendants constitutional due process rights by excluding it under Evidence Code section 352.

Defendant attempted to introduce the testimony of Dr. Deborah Davis, a psychology professor, concerning marital infidelity and murder. According to her, 24 to 26 percent of married men are unfaithful to their wives. Since only four of every million husbands kill their wives in a given year, adultery cannot be used as a predictor for who will kill his wife. Even if all wife killers are adulterers, only one adulterer in about 65,000 kills his wife in any given year.

The prosecution neither presented evidence nor argued to the jury that, because defendant was an adulterer, it was more likely that he killed his wife. That, however, was the only issue concerning which defendants proffered expert testimony was relevant. Instead of rebutting prosecution evidence or arguing the evidence, at most, would have tended to show only that defendants adultery was not a predictor of whether he was also a wife murderer. There is no basis in the evidence or in reason, however, for believing that, without the evidence, the jury made the contrary presumption and convicted defendant merely because he was an adulterer. Thus, defendants proffered expert testimony was no more relevant than any statistic showing that only a certain percentage of the population or a segment of the population commits any particular crime. Furthermore, the trial court instructed the jury it could not use the evidence to conclude defendant was a person of bad character or had a disposition to commit crimes.

Defendant also asserts the evidence would have tended to refute what he asserts was the prosecutions implication that defendants philandering lifestyle was uncommon. Whether his lifestyle was uncommon, however, was completely irrelevant to the issues tried.

The trial court considered defendants proffer and excluded it pursuant to Evidence Code section 352. Even assuming the expert testimony had some relevance to the issues being tried, the court concluded (1) it lacked sufficient scientific certainty to be probative, (2) the undue confusion of the jury and consumption of time substantially outweighed its probative value, and (3) the evidence was misleading.

We need not delve into the scientific certainty of the evidence because it is readily apparent that the probative value was so minimal, if it existed at all, that the undue risk of confusing and misleading the jury and consuming undue time in an already lengthy trial by far outweighed any probative value. Since the prosecution rightfully did not argue that adultery is a predictor of spousal homicide, the jury would only have been perplexed by rebuttal evidence on that issue.

Defendants constitutional argument fails for the same reasons. While we cannot disagree with defendant that evidence that is relevant to the prime theory of the defense cannot be excluded in wholesale fashion (see People v. Walker (1986) 185 Cal. App. 3d 155, 163-166, 229 Cal. Rptr. 591, and cited cases), this proffered expert testimony that adultery is not a predictor of spousal homicide was not critical to the defense that Ronna died in an accident.

XVII

Alleged Prosecutorial Misconduct

Defendant asserts the judgment must be reversed because the prosecutor engaged in prejudicial misconduct in several instances during closing argument. The assertion is without merit.

"`Prosecutors have wide latitude to discuss and draw inferences from the evidence at trial. [Citation.] Whether the inferences the prosecutor draws are reasonable is for the jury to decide. [Citation.] In order to preserve a claim of prosecutorial misconduct for appeal, the defense must make a timely objection at trial and request an admonition. [Citations.] In the absence of a timely objection the claim is reviewable only if an admonition would not have otherwise cured the harm caused by the misconduct. [Citation.]" (People v. Gutierrez (2002) 28 Cal.4th 1083, 1145.)

A. Use of Chart Showing Timeline of Extramarital Affairs

During closing argument, the prosecution, as a visual aid, used a chart that included the pictures of the women with whom there was evidence defendant had extramarital affairs. The chart also showed a timeline of when defendant was involved with each woman. Defendant asserts the chart was misleading because it showed continuous lines for relationships that were not continuous.

Defendant did not object to the prosecutors use of the chart during closing argument. Later, in a motion for new trial, he contended that use of the chart constituted prosecutorial misconduct. The motion for new trial did not cure the failure to object during closing argument and to request an admonition. (See People v. Gutierrez, supra, 28 Cal.4th at p. 1145 [requiring timely objection and request for admonition].) This contention is therefore waived.

B. Prosecutors Statements

Defendant asserts the prosecutor committed misconduct in six ways with statements made during closing argument.

1. Shifting Burden

The prosecutor said to the jury: "It was the obvious case plan of the defense here to prove accident, and —". Defense counsel immediately objected, and the trial court admonished the jury, after repeating the prosecutors statement: "Ladies and gentlemen, thats an incorrect statement of law. And the Defense in this case is not required to prove anything. And the burden is on the Prosecution to prove the case beyond a reasonable doubt, and the Defendant does not have to prove anything at all." The prosecutor agreed: "I totally agree with that statement of law, and apologize for an inept use of a word."

Defendant does not argue that this misstatement of the burden of proof caused prejudice. Instead, he contends the prosecutor, albeit without objection from defendant, committed the same misconduct in the following statements, which we, as does defendant, have taken out of context:. "He wants to convince us that because on these photos, the track ends, and it sort of curved on the end, that it must have been that the snowmobile leapt in the air back here . . . ."

. "There is no explanation of how [defendant], whose testimony indicates has never been knocked out in all his basketball career and whatever else, doesnt have a glass jaw, couldnt get tangled with a snowmobile."

. Concerning cold water shock: "Now, of course, that cuts both ways, because not only cant you tell, but you cant prove it happens, in a direct sense, because theres no way to tell in an autopsy."

. "But [the defense expert] even admitted, its a little difficult to prove, you know, was it a heart attack, was it the slowing of the heart, was it, um, a spasm of the larynx and panic?"

. "There simply isnt any evidence to support the theory that somebody can die of cardiac arrest."

. "It is curious we have no video from Bucks Lake. Why wasnt a video taken there? There is stuff where there has been no evidence presented but insinuation, and that includes [defendant] making the down payment on the house, any source of other money or income. Other than insinuation and questions, there is no evidence of that has been produced."

. "The diabetic traffic accident. There is no evidence of that."

. Concerning defense argument about the condition of the body: "There is no evidence on the body . . . that proves it couldnt have been murder."

. "Because there simply is no explanation of how somebody can be whipped into the ground and end up in a seated position like that. It simply doesnt happen that way." None of these later statements by the prosecutor prompted an objection or request for admonition from the defense. Accordingly, defendant has waived a claim of prosecutorial misconduct concerning them. (See People v. Gutierrez, supra, 28 Cal.4th at p. 1145.) In any event, the totality of the argument and instructions make it clear the jury understood and applied the proper burden of proof.

2. Personal Opinion

The prosecutor said to the jury: "Now, I think the place to start here, and why I wanted to start with the evaluation of evidence is that, in my opinion, there has been no credible evidence presented to support the very cornerstone of the Defense theory of accident." Defense counsel objected that it is improper to argue personal belief, but the objection was overruled. We disagree with defendant that this was improper vouching; instead, "read in context, the challenged comments urged the jury to credit the witnesses testimony based on matters within the record, not matters within the prosecutors own personal knowledge." (People v. Farnam (2002) 28 Cal.4th 107, 170.)

3. Argument Unsupported by Evidence

The prosecutor said to the jury: "I think one of the reasons this occurred at Bucks Lake is the Defendant was counting on a rural law enforcement establishment, with a lack of resources and sophistication to do the job, to look at what was really happening here." Defense counsel objected that this was not a reasonable inference to be drawn from the evidence.

A prosecutor has wide latitude to argue inferences to be drawn by the jury. (People v. Lucas (1995) 12 Cal.4th 415, 473, 907 P.2d 373.) Defendant convinced Ronna to go to Bucks Lake with him, even though she did not want to go. He knew they would be at a remote, sparsely-populated location. Accordingly, the prosecutors argument concerning defendants intent to take advantage of a rural location with less resources and sophistication was a reasonable argument, given the evidence.

Defendant also asserts the statement constituted prosecutorial misconduct because it appealed to passion and prejudice. That assertion, however, is waived because defendant did not object on that ground in the trial court. In any event, the assertion has no merit.

4. Speculation

The prosecutor argued to the jury: "Now, I dont know if he hadnt been interrupted whether [defendant] would have used his strength to tip over his snowmobile and fake an accident on site, or whether, instead, he would have driven the snowmobile with Ronna Franklin in front of him the extra 100 or 150 feet down to this drop off into Grizzly Creek." Defense counsel interjected an objection that the prosecutors argument was based on speculation. The trial court overruled the objection, stating: "This is argument, Counsel."

We agree with the trial court that this argument was within the wide latitude given to counsel to discuss the evidence and draw inferences. (See People v. Lucas, supra, 12 Cal.4th at p. 473.) Drawing inferences, the prosecution could argue that defendant killed Ronna in the water along the road and intended to take further action to make it look like an accident (as it was, the snowmobile merely had stopped next to the water) until the Ingvoldsens approached the scene unexpectedly. Because of the arrival of the Ingvoldsens, defendant had to sit down in the water and feign unconsciousness.

5. Disparaging Defense Counsel

During the prosecutors argument concerning the likelihood that defendant and Ronna were knocked unconsciousness by a fall from the snowmobile, the following exchange took place:

"[Defense Counsel]: Im going to object, your Honor, this is facts not in evidence, nor consistent with the case.

"THE COURT: Its argument, Counsel. [P] You may proceed.

"[Prosecutor]: Jesus. [P] Thank you for your illuminating objection."

Later, the prosecutor, concerning the testimony of a defense expert, Dr. Eric Weiss, told the jury: "I didnt have to pay 350 dollars an hour for Mr. Goedecke. I just had to fly him out here." Defense counsel objected that there was no evidence concerning whether Goedecke was paid. The following exchange then took place:

"[Prosecutor]: I cant help it if you didnt ask the right questions.

"[Defense Counsel]: You know better than that.

"THE COURT: Stop it. Come on.

"[Defense Counsel]: Your Honor, I want those remarks stricken from the record. I would like him admonished. He knows better to argue something not in evidence.

"THE COURT: The remarks will not be stricken. . . ."

On appeal, defendant asserts the prosecutor committed prosecutorial misconduct on these two occasions by disparaging defense counsel. The assertion as to the first comment is waived because defendant did not object or ask the court to admonish the jury on this ground. (People v. Gutierrez, supra, 28 Cal.4th at p. 1145.) As for the second comment, about asking "the right questions," the record reflects petty bickering, not the type of disparaging that would turn the jury against defendant or his attorney. Also, even though counsel asked that the comment be stricken, he did so based on the lack of evidence, not on the possibility that the jury might find it disparaging.

6. Reading of Stricken Testimony

While reading a lengthy portion of testimony of one of the witnesses to the jury, the prosecutor read 13 words that had been stricken pursuant to an objection from counsel. The court struck the offending words because they were speculation by the witness, albeit about a very innocuous subject, her understanding of when something had taken place. Indeed, defendant does not even quote, in his opening brief, the stricken testimony. After the prosecutor read the offending words in closing argument, defense counsel stated: "Your Honor, I need to put something on the record at sidebar, could we please?" The trial court responded: "I dont approve of these interruptions, Counsel." However, court and counsel held a discussion at the bench. After the sidebar discussion, the prosecutor reread the offending words and told the jury it should disregard that part. He said: "I apologize for not picking that up. And you should definitely disregard that part about the assumption."

On appeal, defendant contends: "Reading stricken testimony at all, to say nothing of reading it twice, is a particularly insidious form of misstating the evidence and arguing beyond the evidence." This contention is frivolous, given the record. The prosecutor made a mistake and, when it was drawn to his attention, he corrected the mistake, apologized, and reminded the jury to disregard the stricken testimony. This was not misconduct.

C. Alleged Pervasiveness of Misconduct

In his reply brief, defendant asserts the prosecutors misconduct was so pervasive that we should reverse despite the defenses failure to object to many of the alleged instances of prosecutorial misconduct. (See People v. Hill (1998) 17 Cal.4th 800, 821-822, 952 P.2d 673.) We agree with the Supreme Courts response to a similar argument in People v. McDermott, supra, 28 Cal.4th at page 1001: "Defendants reliance on Hill is misplaced, however. There the prosecutor subjected the defense to a constant barrage of . . . unethical conduct, including misstating the evidence, sarcastic and critical comments demeaning defense counsel, and propounding outright falsehoods, and the trial court consistently failed to curb the prosecutors excesses. [Citation.] Such egregious conduct did not occur here." We perceive nothing unethical or egregious in the prosecutors conduct during closing argument.

XVIII

Refusal of Defense Instructions

Defendant contends the trial court improperly refused to give three jury instructions proposed by the defense. We find no prejudicial error.

A. Instructions Concerning Expert Testimony

Defendant proposed two jury instructions concerning the use of expert testimony. The first would have instructed the jury concerning the foundation for expert opinion, as follows: "An opinion based in whole or in part upon experiment shall be rejected by the jury unless you find all of the following have been proven to you by a preponderance of the evidence. [P] 1. The experiment was conducted under the same of [sic] similar conditions as those existing when the incident took place; and [P] 2. The proponent of the evidence must demonstrate that the correct scientific procedures were used." Defendant asserts on appeal that this instruction was improperly refused because, with respect to prosecution experts Garrison Kost and Lawrence Thibault, the jury had to determine whether a preliminary fact existed before relying on the expert opinion. Specifically, defendant asserts the jury had to find that the experiments conducted by Kost and Thibault to establish the amount of force that was likely applied to defendant and Ronna if they fell from the snowmobile were done under similar conditions to those prevailing at the time of Ronnas death.

Evidence Code section 403 requires a party proffering evidence that relies for its existence on a preliminary fact to produce evidence sufficient to establish the preliminary fact. (Subd. (a)(1).) If the trial court admits the proffered evidence upon a finding that the proffering party has produced sufficient evidence to establish the preliminary fact, the court "may, and on request shall, instruct the jury to determine whether the preliminary fact exists and to disregard the proffered evidence unless the jury finds that the preliminary fact does exist." (Evid. Code, § 403, subd. (c)(1).)

Whether the conditions were similar during the experiment and when Ronna died was a preliminary fact concerning which the prosecution, pursuant to Evidence Code section 403, had to produce evidence before it could introduce evidence concerning the results of the experiments; therefore, defendant was entitled to the instruction he requested concerning the jurys rejection of the experiments if the conditions were not similar. (See People v. Roehler, supra, 167 Cal. App. 3d at p. 385 [admissibility of experiment dependent on preliminary fact of similarity of conditions pursuant to Evid. Code, § 403].) Since Evidence Code section 403 applied to the conclusions reached as a result of the experiments, the trial court should have given the instruction requested by defendant or a similar instruction.

Any error, however, in refusing the instruction was harmless because it is not reasonably probable defendant would have obtained a more favorable result had the instruction been given. (See People v. Wharton (1991) 53 Cal.3d 522, 571, 280 Cal. Rptr. 631, 809 P.2d 290 [erroneous failure to give instruction only warrants reversal if more favorable result was reasonably probable].) The trial court, by admitting the results of the experiments, found that the preliminary fact of the similarity of the conditions had been shown. Even though the conditions were not identical, the results, according to Kost, were reliable because having wet snow would not have altered the results significantly. (See part XII, ante.)

Furthermore, the trial court instructed the jury generally concerning expert testimony, as follows: "In determining what weight to give to any opinion expressed by an expert witness, you should consider . . . the facts or materials upon which the opinion is based . . . . [P] An opinion is only as good as the facts and reasons on which it is based. If you find that any fact has not been proved, or has been disproved, you must consider that in determining the value of the opinion. . . ." (Italics added.) While the trial court should have given a more specific instruction pursuant to Evidence Code section 403, subdivision (c)(1), we conclude that any error was harmless due to the similarity of the conditions under which the experiments were conducted to those prevailing when Ronna died, the trial courts determination of that fact, and the instruction to the jury, generally, that it was to consider the basis of an experts opinion in evaluating the opinion.

Defendant asserts that, in addition to violating his right pursuant to Evidence Code section 403, subdivision (c)(1), the trial courts refusal to give his requested instruction also violated his due process and fair trial rights. This contention is made merely as a conclusion, however, with no supporting analysis. Accordingly, we need not consider it. Issues mentioned but not developed as discrete contentions of error are not properly raised and may be rejected on that basis. (People v. Freeman (1994) 8 Cal.4th 450, 482, fn. 2, 882 P.2d 249.)

Defendant proffered another instruction similar to the one we just considered, as follows: "You are the exclusive judges of whether expert witness testimony should be accepted. Where you find that the expert witness opinion is based merely upon conjecture and/or speculation you may reject it entirely, or give it what little weight you believe it is entitled. [P] However, such evidence may not be based on conjecture and speculation in order for you to render a verdict of guilty."

The last sentence of this instruction is misleading because it directs the jury to find defendant not guilty if it finds there is an insufficient basis for an experts conclusions. In any event, the gist of this instruction was captured in an instruction given to the jury, as noted above, following CALJIC No. 2.80, that directed the jury to disregard the experts opinion if it is not based on proven facts. The trial court did not err in refusing this second instruction.

B. Instruction Concerning Extramarital

Affairs

As we noted above, the trial court gave a limiting instruction concerning the use of evidence concerning defendants extramarital affairs. It told the jury: "Evidence has been introduced by the Prosecution for the purpose of showing that the Defendant had affairs while he was married. This evidence, if believed, may not be considered by you to prove that the Defendant is a person of bad character or that he had a disposition to commit crimes."

Defendant asserts this instruction was insufficient and the trial court should have given an instruction he requested, which stated as follows: "Evidence has been introduced by the prosecution for the purpose of showing that the defendant had affairs while he was married. [P] This evidence, if believed, may not be considered by you to prove that the defendant is a person of bad character or that he has a disposition to commit crimes. It may be considered by you only for the limited purpose of determining if it tends to show: [P] a motive for the commission of the crime charged; [P] for the limited purpose for which you may consider this evidence, you must weigh it in the same manner as you do all other evidence in the case. [P] You are not permitted to consider this evidence for any other purpose. If you determine such evidence fails to prove motive, you must disregard such evidence as if you never heard it."

A comparison of the instruction given and the instruction refused reveals that the instruction given covered everything in the instruction refused except that the instruction given did not (1) limit the use of the extramarital affair evidence to the issue of motive only, (2) state that the evidence must be weighed like all other evidence, and (3) order the jury to disregard the evidence except to the extent it proved motive.

On appeal, defendant asserts it was error not to give his requested instruction because, he contends, it was reasonably probable that the jury put the evidence to improper uses without his longer instruction. This fear is unwarranted. We presume the jury followed the trial courts correct instruction. (See People v. Osband, supra, 13 Cal.4th at p. 714 [presumption that jurors obey instructions].) Furthermore, defendants longer instruction excluded use of the extramarital affair evidence to impeach defendants pretrial statement and show consciousness of guilt, purposes for which we conclude that the evidence was properly admitted. Accordingly, the trial court did not err by refusing to give defendants longer version of the instruction.

XIX

Dismissal of Juror

During trial, one of the jurors committed misconduct by sexually harassing other jurors, a witness, and court personnel and by disobeying the admonition not to talk to witnesses and attorneys. Finally, the trial court was compelled to dismiss this juror. Without discussing the jurors misconduct, defendant asserts the dismissal was without good cause. The assertion fails.

"A trial courts authority to discharge a juror is granted by Penal Code section 1089, which provides in pertinent part: If at any time, whether before or after the final submission of the case to the jury, a juror dies or becomes ill, or upon other good cause shown to the court is found to be unable to perform his duty, or if a juror requests a discharge and good cause appears therefor, the court may order him to be discharged and draw the name of an alternate, who shall then take his place in the jury box, and be subject to the same rules and regulations as though he had been selected as one of the original jurors." (People v. Williams (2001) 25 Cal.4th 441, 447-448, fn. omitted, italics omitted.) On appeal, we "review for abuse of discretion the trial courts determination to discharge a juror and order an alternate to serve. [Citation.] If there is any substantial evidence supporting the trial courts ruling, we will uphold it. [Citation.]" (People v. Marshall (1996) 13 Cal.4th 799, 843, 919 P.2d 1280.)

During the trial, one of the witnesses reported to the court that she had been sexually harassed by Juror No. 5. He asked her, "Do you fool around?" He did not touch her but looked her up and down. The next day, Juror No. 5 made comments to some of the other witnesses and attempted to begin a conversation with defense counsel. In chambers, the court spoke to Juror No. 5 concerning his misconduct and admonished him to follow the courts instructions concerning talking to witnesses and attorneys. Juror No. 5 responded that he had a "hard time keeping [his] big mouth shut." The next day, the court again called Juror No. 5 into chambers to remind him of the admonitions.

On the last day of evidence, the court investigated a note it received from one of the jurors and discovered that Juror No. 5 had been making sexual comments to the other jurors. In addition, one of the court clerks complained that Juror No. 5 had been making sexual remarks and gestures to her. The trial court decided Juror No. 5 should be dismissed.

On this record, the trial court did not abuse its discretion in dismissing Juror No. 5. He repeatedly, over several days, failed to follow the trial courts explicit instructions not to talk to witnesses and attorneys, and he subjected the women around him to sexual harassment. He was unable to maintain even minimal civility and obedience to authority. Accordingly, he exhibited his inability to perform as a juror. (Pen. Code, § 1089.)

Defendant contends this case is like People v. Cleveland (2001) 25 Cal.4th 466, in which the Supreme Court found it was error to dismiss a juror for failure to deliberate when the record did not establish as a demonstrable reality that the juror had so refused. Instead, it appeared the juror simply viewed the evidence differently from the rest of the jury. (Id. at pp. 485-486.) This case is unlike Cleveland. The inability of Juror No. 5 to perform as a juror arose, not because he disagreed with other jurors, but because he was subjecting them and others to harassment and he disobeyed the courts instructions.

Additionally, defendant contends the trial court erred by not questioning jurors before dismissing Juror No. 5. At trial, he suggested that the court question the female jurors to determine whether Juror No. 5s conduct impaired their ability to serve as jurors. On appeal, he contends the trial court may have determined, after questioning the female jurors, that Juror No. 5s conduct did not impair their ability to serve as jurors.

"The court does have a duty to conduct reasonable inquiry into allegations of juror misconduct or incapacity — always keeping in mind that the decision whether (and how) to investigate rests within the sound discretion of the court. (See § 1120; see also § 1089; People v. Cleveland, supra, 25 Cal.4th at p. 476.)" (People v. Engelman (2002) 28 Cal.4th 436, 442.)

We reject the assertion that the trial court had to investigate further in this clear case of sexual harassment and inability to follow the courts instructions by a juror. What would the court have asked? "Will your ability to serve as a juror be impaired by continuing sexual harassment from Juror No. 5?" The trial court did not abuse its discretion in determining, without a further hearing, that Juror No. 5, who had proven he would continue with his disobedience of instructions and sexual harassment, should be dismissed.

XX

Alleged Juror Misconduct

Defendant asserts the trial court abused its discretion in denying his motion for new trial based on juror misconduct. We conclude the record does not support defendants assertion.

Defendant filed declarations in support of his motion for new trial. Mark Delizio, a friend and former client of one of defendants attorneys, stated that at a class reunion on June 24, 2000, during the trial and before deliberations, one of his former classmates had stated that her husband, Juror No. 3, was the jury foreman. The juror engaged in discussion concerning the case and expressed his opinion that defendant was guilty. Defense counsel claimed, in a declaration, that Juror No. 3 told him in a telephone interview that he had expressed an opinion after he had a couple drinks at the reunion that defendant was guilty. In his own declaration, however, Juror No. 3, who was the jury foreman, stated that he had told several people at the reunion that he was on the jury, but he did not recall stating that he felt defendant was guilty. He added that he was not introduced as the jury foreman because it "was not an issue at the time," and he made his final decision concerning defendants guilt during deliberations.

Alternate Juror No. 1 was seated on the jury late in the trial, taking Juror No. 5s place. A fellow juror signed a declaration stating that when Alternate Juror No. 1 was added to the jury he said: "This was Gods will that I was placed on the jury so I can make sure that the verdict will go the right way." Later, during deliberations, Alternate Juror No. 1 said the jury "had to go down the right path" and made other comments that the declarant juror perceived to be of a religious nature. Alternate Juror No. 1 signed a declaration stating that his first comment merely meant he did not believe in coincidence and that it was by design that he had been chosen because he would be just in his decision, whether it was guilt or not. The second comment, during deliberations, was taken out of context and referred to people in general, not to the jury. It meant that some people go down the wrong path and that is why there is crime.

Defendant requested an evidentiary hearing concerning juror misconduct. He also requested discovery of all statements made by Juror No. 3 to law enforcement or the prosecution. The trial court, however, exercised its discretion and denied the requests. Concerning the allegation of misconduct against Juror No. 3, the court found more persuasive the declaration of Juror No. 3, which stated that he did not remember expressing an opinion concerning defendants guilt at the reunion and was not introduced as the jury foreman. The court added that defendant was not prejudiced by the facts stated. With respect to Alternate Juror No. 1, the court simply stated that "defendant was not prejudiced based on the declarations . . . ."

We will not disturb a trial courts denial of a motion for new trial unless the trial court manifestly and unmistakably abused its discretion. (People v. Cox (1991) 53 Cal.3d 618, 694, 280 Cal. Rptr. 692, 809 P.2d 351.) "When a criminal defendant moves for a new trial based on allegations of jury misconduct, the trial court has discretion to conduct an evidentiary hearing to determine the truth of the allegations. We stress, however, that the defendant is not entitled to such a hearing as a matter of right. Rather, such a hearing should be held only when the trial court, in its discretion, concludes that an evidentiary hearing is necessary to resolve material, disputed issues of fact. [Citation.] Also, a hearing should be only held when the defense has come forward with evidence demonstrating a strong possibility that prejudicial misconduct has occurred. Even upon such a showing, an evidentiary hearing will generally be unnecessary unless the parties evidence presents a material conflict that can only be resolved at such a hearing. [Citation.]" (People v. Hardy (1992) 2 Cal.4th 86, 174, 825 P.2d 781, fn. omitted.) Even assuming juror misconduct occurred, "the presumption of prejudice may be rebutted, inter alia, by a reviewing courts determination, upon examining the entire record, that there is no substantial likelihood that the complaining party suffered actual harm. [Citations.]" (Ibid.)

Here, the trial court did not abuse its discretion in denying the motion for new trial based on allegations of jury misconduct. The court also did not abuse its discretion in denying the requests for an evidentiary hearing and discovery. From the declarations, the court was able to determine that Juror No. 3s statement was more reliable. Accordingly, no misconduct occurred. Defendant argues that, since Juror No. 3 was introduced as the jury foreman, the jury improperly chose a foreman before deliberations began. We agree with the trial courts determination, however, that Juror No. 3s declaration was more reliable and a foreman had not been chosen because that "was not an issue" yet.

Even assuming Juror No. 3 was introduced as the foreman and expressed an opinion concerning defendants guilt at the reunion, an examination of the entire record reveals there is no reasonable likelihood defendant suffered actual harm from the misconduct. (See People v. Hardy, supra, 2 Cal.4th at p. 174.) Juror No. 3 declared he did not make his final decision concerning guilt until jury deliberations. Furthermore, there is no indication Juror No. 3 received outside evidence or was influenced by those to whom he may have expressed his opinion. The record does not show a substantial likelihood of juror bias. (See In re Carpenter (1995) 9 Cal.4th 634, 653, 889 P.2d 985.)

As for Alternate Juror No. 1, we perceive no juror misconduct in his statement concerning why he was chosen for the jury. The statement did not indicate a bias toward a guilty verdict as opposed to a not guilty verdict. Defendant cites no authority, and we know of none, that disqualifies a person from jury service simply because that person believes in divine providence as to matters such as being selected to serve on a jury. Furthermore, the second statement about going "down the right path," no matter what interpretation is given to the statement, did not indicate an intent to rely on anything other than the evidence in arriving at a verdict.

Thus, the denial of the motion for new trial was not an abuse of discretion. Furthermore, the declarations did not present a strong possibility of prejudicial misconduct, which would have required an evidentiary hearing or further discovery.

XXI

Cumulative Prejudice

Defendant asserts that errors in his trial, although harmless individually, resulted in a fundamentally unfair trial when considered cumulatively. We have found no significant error in the proceedings. While we concluded the trial court erred by not giving a limiting instruction concerning the state of mind evidence and an instruction concerning the foundation for expert testimony, we have found no prejudice to defendant. Even considered together, these errors were harmless. They did not render the trial fundamentally unfair.

XXII

Correction of Presentence Report

During the sentencing hearing, the trial court ordered numerous corrections to the probation report. Later, after judgment had been entered and a notice of appeal filed, the trial court issued an order to the probation department to "prepare an amended probation report to strike, delete or amend the original report consistent with the findings of this court . . . . Said amended probation report shall be submitted to the Plumas County District Attorney and Defense Counsel prior to filing with the court for further objections, corrections, and/or deletions." In response to that order, the probation officer prepared another report with the label "Supplemental."

On appeal, defendant asserts, and the Attorney General agrees, that many of the amendments ordered by the trial court do not appear in the supplemental probation report. Defendant further argues, and again the Attorney General agrees, we should direct the trial court to order the probation department to prepare a new report with the amendments made by the court. This argument is made, however, with no authority for the proposition that a trial court may order the amendment of a probation report or that an appellate court should direct the trial court to order the probation department to do what has already been ordered. The trial court ordered the probation department to make the amendments and directed the parties to resort to the trial court for further proceedings on the issue. Indeed, defendant does not contend the trial court erred. By defendants own account, the trial court has done nothing that requires our intervention.

This is a post-judgment matter to be resolved in the trial court. The trial court issued its order to the probation department on January 11, 2001, after judgment and the notice of appeal, filed on December 8, 2000. Accordingly, we find this issue is not properly presented to this court.

XXIII

Local Conduct Credits

In sentencing defendant, the trial court did not award any local conduct credits. As the Attorney General concedes, defendant is entitled to not more than 15 percent local conduct credits. (Pen. Code, § 2933.1; People v. Cooper (2002) 27 Cal.4th 38.)

DISPOSITION

The judgment is modified to reflect that defendant is to receive 676 days of presentence credits, consisting of 588 days of actual credit and 88 days of conduct credit. As so modified, the judgment is affirmed. The clerk of the superior court is directed to prepare an amended abstract of judgment and forward it to the Department of Corrections.

We concur SCOTLAND, P.J., and HULL, J. --------------- Notes: In a petition for rehearing, defendant asserts that in his reply brief he raised the issue of whether the second Batson/Wheeler motion was properly denied. There, defendant stated: "If the Court agrees with respondent that the judge actually ruled on the second motion, then the analysis is the same as for the first motion, and so is the remedy: at a minimum, a remand for proper consideration of the second motion." This conclusionary statement, with no reasoning or authority, was insufficient to prompt our consideration of whether the second Batson/Wheeler motion was properly denied. (People v. Freeman (1994) 8 Cal. 4th 450, 482, fn. 2, 34 Cal. Rptr. 2d 558, 882 P.2d 249 [issues mentioned but not developed as discrete contentions not properly raised].) Furthermore, we may treat as waived issues raised for the first time in a reply brief. (Garcia v. McCutchen (1997) 16 Cal. 4th 469, 482, fn. 10, 66 Cal. Rptr. 2d 319, 940 P.2d 906 [fairness militates against considering issues raised in reply brief].) And finally, since defendant asserts the analysis concerning the second Batson/Wheeler motion is the same as the analysis concerning the first, the assertion concerning the second motion fails for the same reasons the assertion concerning the first motion failed.