People v. Ye

Full title: THE PEOPLE, Plaintiff and Respondent, v. LINNA YE, Defendant and Appellant.

Court: COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION FIVE

Date published: Apr 29, 2011

No. A125106 (Cal. Ct. App. Apr. 29, 2011)

Opinion

A125106

04-29-2011

THE PEOPLE, Plaintiff and Respondent, v. LINNA YE, Defendant and Appellant.

Bruiniers, J.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Solano County Super. Ct. No. VCR173577)

Linna Ye was convicted of the second degree murder of the 88-year-old father of her former lover. She raises numerous challenges to her conviction, including claims of prosecutorial misconduct; admission of allegedly scientifically unreliable DNA evidence; erroneous admission of implied hearsay testimony; and several claims of ineffective assistance of counsel. We affirm.

I. Background

Edward Reding (hereafter, Edward) died on November 3, 2003. In June 2004, Linna Ye was charged with his murder and released on bail. Due to several continuances, the case did not initially go to trial until April 2007 (first trial). That jury could not reach a unanimous verdict and the court declared a mistrial. A second trial began on March 25, 2008. After an unsuccessful Marsden motion¹ on the second day of trial, Ye stipulated to dismissal of the jury and declaration of a mistrial. Ye was appointed new counsel the next day and a third trial commenced September 23, 2008. Because the case against Ye was largely circumstantial, we discuss the evidence in some detail.

1 People v. Marsden (1970) 2 Cal.3d 118.

Trial Evidence at Yes Third Trial

Ye lived with Edward and his son, Dr. Michael Edward Reding (Reding), in Benicia at the time of Edwards death. She and Reding were romantically involved on and off from the year 2000 to September 2003. They had a rocky relationship. In August 2002, Ye moved into Redings home (the Reding home) with her 14-year-old son, D. In the summer of 2003, Redings son, Michael Reding Jr. (Michael Jr.) also lived in the home during his summer break from college. Edward came to visit in August 2003 and stayed through November 3, 2003. Redings master bedroom and bathroom were on the top floor of the two-story house; D.s and Michael Jr.s bedrooms were downstairs where another bathroom was located; and Edward stayed in a fold-out bed in the downstairs family/living room. Ye stayed in the upstairs bedroom with Reding until September 2003, when she moved downstairs into Michael Jr.s vacant bedroom.

After Ye moved in, her relationship with Reding deteriorated and he repeatedly asked her to move out, but she did not. During Edwards August 2003 visit, he fell and hit his head while getting on a paratransit bus, and he was hospitalized for five days. After this incident, he needed greater support at home. Shortly after Edwards return from the hospital, Reding attended a health retreat in New York. Michael Jr. agreed to look after Edward until he went back to school the weekend before Redings return. Ye agreed to look after him on the final weekend. A dispute arose between Reding and Ye about whether Ye adequately cared for Edward that weekend.

September to November 2003

When Reding returned from his trip, he told Ye to move to Michael Jr.s bedroom (as he had gone back to college) and to move out. Reding consulted a lawyer about how to get Ye out of the house without conflict, since she had not complied with his previous requests. Reding asked Ye to leave many times, every few days, and she usually responded with a threat. The first threat she made was," Have you ever heard of [F]atal [A]ttraction? Well, that could happen. " At other times she said," If you press me to leave, I will kill you, and kill myself. ";" If you press me to leave I will—you will die. ";" If you kick me out, I will destroy you. ";" If you carry through with this plan to get me to leave your house, something could happen that youll regret for the rest of your life. " Reding offered Ye several thousand dollars to help her find a new home and move out. She responded," It will take $60,000 to make me leave, " but Reding would not agree to pay that amount. Michael Jr. and Redings family law attorney (who had not testified at the earlier trials) testified that Reding told them before Edwards death about Yes threats. Ye did not specifically testify about the alleged threats. Reding also described two incidents between September and November 2003 when Ye yelled at Edward. In the second incident, Ye became "very agitated, and began shaking her fist at [Edward] and coming towards him. [Reding] became concerned that she was going to attack him," so he stepped in front of her, which effectively ended the altercation. Ye acknowledged certain disagreements with Edward. However, she characterized them as within the range of ordinary family arguments and testified that she had developed a good relationship with Edward during his prior visits but withdrew in the fall of 2003 because she was planning to move out.

November 3, 2003

Steven Sims, a dispatcher for the Dial-a-Ride program of Benicia Transit, testified that Edward was scheduled to be picked up at 2:15 p.m. on November 3, 2003. As a courtesy, Sims called to remind Edward and confirm the pickup, but there was no answer, which was unusual. Sims identified the fifth entry on Peoples Exhibit 3 (Redings home phone records) as the unanswered call he described. He further testified that when the Dial-a-Ride driver arrived at the Reding home at 2:10 p.m., Edward was a no show which was also unusual.

D. testified that he arrived home from school on November 3, 2003, at about 3:20 p.m. He heard water running in the downstairs bathroom, but at first did not see anyone there. Ye was not home, although she was usually home when D. returned from school. D. looked into the bathroom door again and saw Edward lying on the floor with blood on his face. D. panicked for a couple of minutes and then decided to call his mother. He reached her by phone at about 3:38 p.m. D. then called a friend to ask if he could stay at the friends house. He was told he could, so he called a taxi and waited outside. D. waited about 70 minutes for the taxi, but it did not arrive.² Eventually, an ambulance and a police car pulled up to the house and Reding arrived.

2 D. testified that he did not call 911 during the approximately 70 minutes after he saw Edward on the bathroom floor because he was panicking. Also, he had told his mother about the situation and asked her if she was going to inform Reding, so he assumed "the adequate amount of people would have known[] to be able to take care of it."

Gregory Petersen, a paramedic, entered the house sometime after 4:00 p.m. and heard water running. He went to the downstairs bathroom, saw the tub was full to the top, and turned off the water. Edwards head was propped up against the bathtub, with his chin touching his chest. Petersen pulled Edward a couple of inches away from the tub to open the airway, but the chin remained in the same position. His arms were also stiff, indicating rigor mortis. Dr. Arnold Josselson, a forensic pathologist, testified that rigor mortis, the stiffening of muscles after death, usually becomes apparent in the limbs within two to four hours after death, "but it can vary quite a bit."

Reding testified that on November 3, 2003, he awoke at about 7:00 a.m. and his father was already awake and dressed. Edward usually got up at 5:00 or 6:00 a.m., took his vitamins, ate cereal or oatmeal very early in the morning, and read the paper. When Reding left for work, his father was the only one home. Reding had a normal day at work (as a child psychiatrist at Kaiser Permanente Medical Group in Vallejo) seeing patients, consulting with colleagues, and eating lunch. At about 4:30 p.m., he accessed his voice mail and retrieved two messages from Ye. In the first message, which was left at about 3:50 p.m., Ye said that D. had found Edward on the floor in the bathroom when he came home from school and Reding should go quickly to see what was the matter because she was out of town. The second message, received at 4:20 p.m., was similar. Reding drove home and called 911 en route. When he arrived at the house at about 5:00 p.m., the paramedics had already arrived.

Ye testified that on November 3, 2003, D. woke her up and she went into the downstairs bathroom to comb her hair and wash up. While she was sleeping downstairs, she sometimes used the upstairs bathroom to shower but she used the downstairs bathroom to comb her hair, among other things. D. testified that Ye regularly used the downstairs bathroom. Wilson, the family law attorney, testified that when he later met Ye at the Reding home so she could remove her property, she carefully searched each room for her things but did not enter or take anything from the downstairs bathroom.

After Ye used the bathroom, she took her son to school. When she returned after the 30-minute trip, Reding was still home. She then made Edward breakfast and ate with him as he took his pills. She left sometime between 9:30 and 9:50 a.m. She drove directly to the Benicia public library (a 15-minute trip) and checked out two books that were later found in her car. She then drove straight to the freeway and crossed the bridge to San Mateo, where her parents and brother lived. Ye called her parents en route to let them know she was coming over. She went to San Mateo to show her parents D.s birthday pictures (he had turned 16 in November 2003), and to take care of a payment issue related to her rental property in San Jose. She spent the day with her parents and planned to return to Benicia at about 3:30 p.m. Yes mother generally corroborated Yes testimony.

As Ye was getting on Highway 101 to return to Benicia, she received a call from her son at about 3:37 p.m. D. told her that Edward was on the bathroom floor with blood on his head and the water was running. Ye exited the freeway, pulled over, and at 3:49 p.m. called Reding at his Kaiser office. Although Reding also had what she called a "car phone," she expected him to be at the office and she had always been able to reach him there. She did not call 911 because she knew Edward had fallen before without being seriously hurt and she thought it best to let Reding handle the situation. She called Reding again at 4:21 p.m. At 4:35 p.m., she called what the prosecutor referred to as Redings cell phone because she thought Reding might have rushed back to the house in response to her earlier call or calls. She never reached Reding.

Initial Investigation on November 3, 2003

Tom McBroom, a Benicia police detective, testified that he observed tools lying on the sink countertop and toilet of the downstairs bathroom, and it appeared the bathtub had overflowed. The bathtub was filled to the brim, there was water on the floor, bath mats that had been on the bathroom floor were wet, and a small area of the carpeting outside the bathroom door was "saturated" with water. (D. testified the carpeting outside the bathroom door was dry when he discovered Edward.) McBroom walked through the house to check for signs of ransacking or forced entry and found none. However, the house was "clearly cluttered" and even "extreme[ly] cluttered" as shown on photographs received in evidence.

McBroom testified that the deputy coroner, Jim Burton, arrived at 7:30 p.m. and entered the bathroom. Burton told McBroom there was no evidence the bathroom was a crime scene, although he could not explain the injuries to the victims forehead and would therefore request an autopsy. McBroom helped Burton put the body in a body bag. Burton laid the bag next to the body, rolled the body onto one side, slid the bag underneath the body, and then "roll[ed] the body bag to the other side to get the body inside the bag, so he can zip it up and lift the body up."

Redings, Yes and D.s Activities on the Evening of November 3

D. told police it was unusual for Ye not to be home when he got home from school. He also said Ye was upset that Edward was going to be staying at the Reding home for a long time. D. spent the night at his friends house and did not speak to Ye in the evening of November 3 or at any time on November 4 or 5.

The coroner told Reding he could hire a service to clean the bathroom or he could clean it himself. Reding cleaned it up himself for several hours that night. Ann Greenbaum, a woman who had accompanied Reding on the health retreat he took shortly after Edwards hospitalization in August, came over "to sit vigil" with him. She sat just outside the bathroom as he cleaned it from about 9:00 p.m. until the middle of the night. When Reding was done cleaning, he put the cleaning materials and debris from the bathroom in a trash bag and he put the trash bag in a garbage can. He wore old clothes and old tennis shoes as he cleaned the bathroom. Although he had not cleaned those clothes before the police returned the next day, the police never asked to see the shoes or, apparently, the clothes. He testified there were many long dark hairs in the bathroom as he cleaned it that night, "to the extent that they were covering the floor in places, and I had never seen so many in that bathroom, or anywhere in the house." McBroom testified that two of the photographs taken on November 3, 2003, did not show hairs in the area of Edwards head, but a third photograph showed quite a few hairs.

Ye did not return home on November 3, 2003. She said she knew her son was okay and she planned to return home November 4. She did not go home November 4 because the mother of D.s friend told Ye she was not allowed to contact D. There was conflicting testimony on this point. Ye did not return to Benicia on November 4 or 5 and she wore the same clothes from November 3 to 5.

November 4, 2003 Autopsy

On November 4, 2003, Josselson, who was accepted as an expert in forensic pathology and cause of death, conducted an autopsy on Edwards body. Josselson opined that Edward died as a result of blunt-force head injury and manual strangulation. He found five distinct lacerations on the top of Edwards head and on his forehead, ranging from one-half inch to three inches long and from superficial to "rather deep." He opined that the lacerations on the top of the head were caused by blows, not a fall. "When people fall, they usually dont fall on top of their head." Regarding the forehead lacerations, he opined, "[T]he two on the right [forehead], or the one on the left [forehead] possibly could have been from a fall, but I dont think all three of them could have been caused by a fall. I think at least one of those was caused by a blow." "I have never seen this many [lacerations] just from a fall...." There was no injury to the brain, skull fracture or bleeding inside the skull. This indicated "that these blows were not extremely hard. They were moderately hard. But because of all the lacerations there was probably a great deal of bleeding which did contribute to the death." Josselson discovered four areas of hemorrhage on the internal structure of the neck in the front and one in the large muscles on the side of the spinal column in the back of the neck. Josselson opined these injuries were caused by manual strangulation, "that is, someone putting their hands on the neck and applying some force on the neck." He acknowledged some common symptoms of strangulation were absent. The only abnormality discovered in Edwards internal organs was an enlarged heart. Despite the enlarged heart, Josselson did not believe the cause of death was a heart attack. Josselson examined the contents of Edwards stomach and found only a small amount of fluid and no identifiable food particles or pills. He testified that it generally takes about four to six hours for a persons stomach to empty after eating, but there is some variation.

During the autopsy, evidence technician Williams noticed a hair in a crease of Edwards neck going from right to left and another hair nearby lying on his shoulder. She collected the hairs as evidence. Williams did not recall seeing hairs on Edwards neck on November 3. Paramedic Petersen likewise did not recall seeing any hairs on Edwards neck on November 3, 2003. Two photographs that Williams took of Edwards head on November 3 did not show hairs in the area of his neck where the hairs were later found during the autopsy. Defense counsel suggested the hairs might have gotten on Edwards neck and shoulder when Edwards body was rolled into the body bag.

November 4, 2003 Further Investigation

After Josselson rendered an opinion that the death was a homicide, McBroom considered Reding, Ye and Yes son suspects because they lived in the home and they were the last three people to have seen the victim alive. McBroom had the resource officer at D.s school interview about a dozen of D.s classmates and teachers on November 4, 2003. He interviewed Reding in Redings Kaiser office from about 11:00 a.m. to noon on November 4, 2003. He also assigned Bob Oettinger, a Benicia police lieutenant, to investigate Redings whereabouts on November 3, 2003 and based on Oettingers report McBroom excluded Reding as a suspect. McBroom did not seize clothing or shoes from Reding or belonging to Reding. He did not obtain a blood sample from Reding. He never obtained a printout of Redings Kaiser schedule for that day.

McBroom, Williams and other crime scene investigators returned to the Reding house on the evening of November 4, 2003 to collect evidence. Criminalist Tanya Beede searched for bloodstain evidence in the home. She examined multiple pairs of shoes found in the foyer for reddish-brown stains. A detective said he thought there was a shiny substance on a pair of brown sandals, so Beede tested the sandals with a presumptive test for blood and they tested positive. The sandals were collected as evidence. Reding testified that he had a "vague recollection" of pointing out a pair of sandals to the officers and said, "I think they were Linna Yes." Reding testified that the sandals in evidence (i.e., those that were collected on November 4) looked like the sandals that belonged to Ye. McBroom testified that on November 4 he observed a police officer ask Reding a question and heard Reding respond by pointing to the sandals and saying," Yeah, those are Linna Yes shoes. " Ye acknowledged that she wore the sandals, but denied that they were worn exclusively by her. Michael Jr. testified that each person in the family had a pair of shoes or sandals that they wore in the house, except Edward wore support stockings or went barefoot instead of wearing indoor shoes.

Damiean Sylvester, a Benicia police officer, walked around the outside of the Reding home on November 4, 2003, as it was being videotaped by a videographer. He looked for signs of forced entry and found none. He saw a footprint on top of a dirty air conditioning unit that appeared to be old, i.e., not made in the previous few days.

The officers asked Reding what he did with the debris from the bathroom and he directed them to the garbage can. Williams collected a trash bag inside that garbage can as evidence.

November 5, 2003 Arrest, Interview and Examination of Ye

On November 5, a SWAT team arrested Ye as she was seated in the back seat of a car in San Mateo.³ Multiple officers ran up to the car with weapons drawn, pulled her out of the back seat of the car onto the ground, and handcuffed her. At about 2:00 p.m. on November 5, McBroom interviewed Ye at a San Mateo police station. Ye testified that she was questioned there for four to five hours. After the interview, the police took Ye to the hospital to collect evidence, including blood and hair samples. Oettinger was present during the examination, and he observed what appeared to be blood stains on the shirt and thermal underwear pants Ye was wearing. Ye volunteered that the stains were menstrual blood. Oettinger also observed injuries or bruises on Yes body and had photographs taken of them. Josselson was shown the photographs and asked if he could determine how old the bruises were. He testified, "[T]here is a great deal of variation from person to person as to how the bruises change colors, so... [¶]... [¶] [i]ts hard to be very exact." "All I can say is they were not extremely recent.... I really am hesitant to try to age bruises since there is so much variation from person to person. They do not look like they are an hour or two old, but older than that, that is about as specific as I can be."

3 Ye testified that she was taking a nap in the back seat of her parents car as she used the car to charge her cell phone. Yes mother corroborated this testimony.

Ye was not charged with homicide until June 2004. McBroom testified that he waited for crime laboratory results before again arresting Ye.

DNA Testing of Sandal and Bathroom Swabs

Beede, who qualified as an expert in the field of DNA analysis, testified that she conducted DNA testing on swabs taken from five areas of the left sandal. In two areas (the right top strap and the bottom of the sandal), she obtained DNA evidence with a profile that matched Edwards. In the left portion of the top of the sandal, the swab included the DNA of more than one person. Most of the DNA in that swab had a profile that matched Edwards. Three "types" (apparently alleles) of DNA in the swab were from a minor contributor and were present at a "much lower level" than the DNA that matched Edwards profile. "[T]hose three types [of DNA] were consistent with the types of Linna Ye at those locations." However, the laboratory could not determine that the minor contributor DNA "matched" Ye because "not all the types of the minor contributor are present." Similarly, a swab of the toe area of the sandal contained a mixture of DNA with the profile of the major contributor matching Edwards and the types of the minor contributor consistent with Yes profile. In another area, underneath the strap of the sandal, the swab again included the DNA of more than one person. Most of the DNA had a profile that matched Edwards and "[t]here were minor alleles, and some of [which] were consistent with Linna Yes type at those locations." However, there were also two alleles that were foreign to both Edward and Ye. Beede was not able to identify the other minor contributor, who could have been male or female. For the swabs that contained a mixture of DNA, Beede could not tell when the DNA from the multiple sources had mixed. They could have been deposited on the sandal months apart. Moreover, the DNA did not necessarily come from blood. Sandals worn regularly by someone would be expected to have that persons DNA on them from, for example, skin cells that are deposited as a result of friction.

Laboratory Analysis of Hair

Brandy Spas, a senior criminalist for the Department of Justice, was qualified as an expert in the field of hair analysis and comparison. Spas compared hairs taken from the trash bag that Williams collected on November 4, 2003, with hair samples from Ye and D. by observing them under magnification. "[A]ll of the questioned hairs that I examined fell within the range of characteristics exhibited by the known hair standard[s]," which included length and color and for hairs subjected to microscopic examination the diameter, pigment, distribution of the pigment and other factors. When asked if she formed an opinion about whether the evidence hairs came from Ye, she responded, "[A]s a hair examiner, I cant say that a hair came from a specific person. All I can say is, it came from a person with similar hair characteristics." Spas testified that she could determine where the hairs were in their life cycle and she noticed that many of the hairs in the evidence sample were in an active-growth stage. "[T]he average person loses about a hundred hairs a day that just are falling out, sloughing out at the end of their life cycle. [¶] To get these hairs that have the roots that are actively growing, it takes some kind of force to pull that hair out, and you would not expect to find very many in a brush. The... only reason you would find one in a brush[] is... it was tangled[] and you forcefully pulled that hair out of your head." However, she also testified that for "[s]ome people, it doesnt take very much to pull their hairs out. Other people, you really have to pull pretty hard." There is no way of knowing how much force is required to pull a hair from a particular persons head because everyone is different.

Brian Wraxall, an expert in forensic serology and DNA comparison, compared the DNA in the two hairs collected from Edwards neck with hair and blood samples from Ye and a blood sample from Edward. Wraxall explained that a hair root or tissue attached to hair can be tested for nuclear DNA and the hair shaft itself can be tested for mitochondrial DNA. Mitochondrial DNA is inherited only from an individuals mother and mitochondrial DNA testing is much less discriminating than nuclear DNA testing. The hair from Edwards shoulder had tissue attached and the nuclear DNA profile from that tissue "matched Ms. Ye, but did not come from [Edward]." There was also some loose tissue in the packet that contained that hair and that tissue "matched" Edward. "[T]he two hairs matched up as far as mitochondrial DNA was concerned for Ms. Ye, but not for [Edward]."

Credibility Issue

Reding acknowledged that he testified falsely at a hearing held during the third trial but outside the presence of the jury. The testimony was about a phone conversation he had on the afternoon of September 24, 2008 after Sylvester had testified about the shoe print he saw on the air conditioning unit.

Verdict, Motion for New Trial and Sentencing

The jury, which was instructed on first and second degree murder, began deliberating at 2:35 p.m. on Thursday, October 2, 2008. On the afternoon of October 3, the jury asked for a readback of Beedes testimony about the sandals. On Monday, October 6, the jury asked for a readback of Josselsons testimony. At 3:15 p.m. that day, the jury returned a verdict of second degree murder.

On April 3, 2009, Ye (represented by new counsel) moved for a new trial on the ground her trial attorney provided ineffective assistance, inter alia, in failing to call an expert witness to challenge Josselsons conclusions regarding the cause of Edwards death. Following an evidentiary hearing, the motion was denied. The court then sentenced Ye to 15 years to life in prison.

II. Discussion

A. The Phone Records

Ye argues the prosecutor committed misconduct by arguing that Redings home telephone records, which were in evidence, showed that four incoming calls to the residence between 10:02 a.m. and 1:33 p.m. on November 3, 2003 were not answered, thus supporting the inference that Edward was dead by 10:02 a.m. We conclude the claim is forfeited by defense counsels failure to object to the prosecutors closing argument and by her concession in her own closing argument that the calls went unanswered. Ye argues that if the issue is forfeited, her trial attorney provided ineffective assistance. However, we cannot determine on this record that Yes trial counsel had no valid tactical reason for her actions.⁴ Therefore, the claim fails.

4 We note that what would appear to be the same telephone records were used in first trial, also with a stipulation to foundation, and were likewise admitted into evidence without objection. The prosecution did not, however, argue the inferences he drew here. Ye raises claims of ineffective assistance of counsel in this trial in a related petition for habeas corpus (In re Ye (A130737)) which we address by separate order.

1. Factual Background

On September 23, 2008, counsel filed a written "Proposed Stipulation to Admit Business Records During Trial," which stated that with respect to the Reding home phone records "testimony will not be needed by the custodian of records from SBC to establish a foundational requirement for such records to be used during trial[.]" Counsel orally presented the stipulations to the court on the same day. As part of the prosecutions casein-chief, Sylvester testified that he obtained records for Redings home phone via a search warrant. The prosecutor then stated, "I think counsel is willing to stipulate that the records that we have subpoenaed to court, via Officer Sylvester, are admissible without any further testimony regarding their source," and defense counsel responded, "Correct. I would stipulate to the foundation basis."

The phone records for the Reding home number, Exhibit 3, were received in evidence without objection. They appear to be faxed copies of two computer printouts.⁵The printouts each consist of a table under the heading, "Display Standard AMA Records." Numerical data is listed in the table under column headings such as TR ODE, CALL CODE, ANS IND, SER FEAT, CUSTOMER CONNECT (below, "CusConnect"), and CUSTOMER ELAPSE (below, "CusElapse"). For the terminating number (707) 747-6666 (the Reding residence home phone), the following data appears on both printouts (illegible digit marked with an asterisk):

5 The original exhibit also includes an attached search warrant affidavit, which we discuss post.

+-------------------------------------------------------+ ¦Cust. Date¦31103 ¦31103 ¦31103 ¦31103 ¦31103 ¦ +----------+--------+--------+--------+--------+--------¦ ¦CusConnect¦10:02:42¦11:19:2*¦12:34:09¦13:33:12¦16:12:34¦ +----------+--------+--------+--------+--------+--------¦ ¦CusElapse ¦00:00:22¦00:00:21¦00:00:20¦00:00:20¦00:00:02¦ +-------------------------------------------------------+

The prosecutor did not call any witness to interpret these records. As noted, he nevertheless argued in closing that the records demonstrated that four incoming calls at 10:02 a.m., 11:19 a.m., 12:34 p.m. and 1:33 p.m. went unanswered. He argued, "Over there on that table theres a phone record of the home.... [¶] Beginning at 10:02 theres a phone call coming into Doctor Redings home that lasts 2[2] seconds. And you know that was a no answer phone call,... Ill explain that to you in a minute. [¶] At 11:19 another incoming call that lasted 21 seconds.... [¶]... You know that that was a no answer. He was dead by the time that phone call was made. [¶] At 12:34 another incoming call was made that lasted 20 seconds. You know that one was a no answer. Why do you know that? Because at 1:33 Benicia Dial-a-Ride called, and it lasted 20 seconds. And remember Mr. Sims testifying that... there was no answer. That call hooks up and rings until there is no answer. Each and every one of these calls were the same length, within a second or two."

Defense counsel did not object to the argument. In her own closing argument, she told the jury, "When the phone calls come in and they are not answered, theres been no testimony that Edward Reding ever even answered the phone when people called. There was testimony that his foot hurt." In rebuttal, the prosecutor argued, "Counsel told you that there was no testimony that Ed Reding ever answered the phone.... [B]ut Mr. Sims testified, if you will remember, that not only did he call and there was no answer, but the word used by him was that, It was very unusual that Ed Reding wouldnt answer that phone.... It stuck in his mind to the extent that five years later he remembers that was very unusual. Not just unusual, but it was very unusual that he didnt answer that phone."

2. Forfeiture by Stipulation to Admissibility

The People argue that defense counsel "stipulated—both in writing and [orally]— that the telephone records referenced by the prosecutor were admissible absent a telephone company representative to explain the various data set forth" and she thus forfeited any related claim of error on appeal. Ye responds that her counsel only stipulated to the authenticity of the records and did not agree that their contents could be explained without expert testimony. We agree, but need not further discuss the Peoples argument of forfeiture on this basis, because we conclude, as we discuss post, that it has otherwise been forfeited by her failure to make specific objection to the prosecution argument and by her own concession of the underlying issue in her own argument.

3. Prosecutorial Misconduct

Ye contends that, when the prosecutor argued to the jury that the phone records supported an inference that the four incoming calls between 10:00 a.m. and 3:00 p.m. went unanswered, he committed misconduct and violated her federal constitutional rights to confront the evidence against her and to present rebuttal evidence in her own defense.

When a prosecutors conduct infringes on a specific guarantee of the federal constitution, it is subject to review under the standards applicable to that constitutional guarantee. (See People v. Bell (1989) 49 Cal.3d 502, 533 (Bell).) In other contexts, "[a] prosecutors behavior deprives a defendant of his [federal] rights when it comprises a pattern of conduct "so egregious that it infects the trial with such unfairness as to make the conviction a denial of due process." ([Citation]; accord, Darden v. Wainwright (1986) 477 U.S. 168, 181...; [citation].) Conduct that falls short of that standard may still constitute misconduct under state law if it involves the use of deceptive or reprehensible methods to persuade the trial court or the jury. [Citations.]" (People v. Gamache (2010) 48 Cal.4th 347, 370-371 (Gamache).) A prosecutor is given wide latitude in argument, which may be vigorous as long as it amounts to fair comment on the evidence and reasonable inferences drawn therefrom. (Id. at pp. 370-371.) However, a prosecutor may commit misconduct if he or she misstates or mischaracterizes the evidence or asserts facts that are not in evidence. (People v. Hill (1998) 17 Cal.4th 800, 823; People v. Wharton (1991) 53 Cal.3d 522, 566.)

We do not agree that the prosecutors argument would lead a reasonable juror to believe that he was interpreting the records based on his own expert knowledge.⁶ As we note post, Yes counsel herself drew the same inference from the records.

6 The prosecutor did not state or imply that he had expert knowledge about the meaning of the records. (Cf. Bell, supra, 49 Cal.3d at p. 539.) Instead, the prosecutor argued to the jury that certain data in the phone records (which he accurately recited) combined with both Simss testimony (which he also accurately recounted with the exception noted in fn. 5) and the jurors common experience supported the inference he wanted the jury to draw. Yes cited cases are distinguishable. In Bell, the prosecutor committed misconduct when he described the effects of cocaine to the jury during closing argument, "purporting] to be stating a scientific fact." (Bell, at p. 539.) In People v. Fosselman, the prosecutor committed misconduct, inter alia, by improperly alluding to facts not in evidence while cross-examining the defendant and stating his personal belief, based on purported facts not in evidence, about the defendants criminal intent. (People v. Fosselman (1983) 33 Cal.3d 572, 579-580.) In People v. Heishman, the court found no misconduct where the prosecutor referred to his prior experience with crime victims but the thrust of his argument (in the penalty phase of a capital trial) was that the victim who testified before the jury was particularly distressed, which was based on facts in evidence, i.e., the witnesss demeanor on the witness stand. (People v. Heishman (1988) 45 Cal.3d 147, 195-196.)

Ye argues that, had her trial attorney objected to the argument, the trial court would have been required to instruct the jury that the inference was not supported by the trial evidence, but could only be supported by additional foundational testimony. As Ye notes, Exhibit 3 was not a customer phone bill that would be familiar to most jurors. The headings "Customer Connect" and "Customer Elapse" may refer to the time that the particular phone at issue somehow connected with the outside phone network without necessarily corresponding with the amount of time the phone rang, if at all. Moreover, the "elapse" of the connection does not self-evidently indicate that the phone stopped ringing without being answered. Moreover, data on the records that was not cited by the prosecutor is inconsistent among the four calls, thus undermining the prosecutors argument that the records exhibit a clear pattern that supports a common-sense inference that the four calls went unanswered.⁷

7 In particular, as Ye notes, the "Carrier Elapse" figure for the 10:02 a.m. call (00:00:54) is different from the "Carrier Elapse" figures for the other three calls (00:00:00). We further observe that a 4:12 p.m. incoming call on the records, which has a "Customer Elapse" figure of 00:00:02, shares numerous similarities with the 10:02 a.m. call ("OVS IND" 0; "PIC ID" 2882; "CARR DATE" 31103; "CARRIER ELAPSE" 00:00:54 or 00:00:34; "CES" 10; "ANI IND" 2 or 3) that are all inconsistent with the other three calls ("OVS IND" 1; "PIC ID" 0000; "CARR DATE" 00000; "CARRIER ELAPSE" 00:00:00; "CES" 00; "ANI IND" 0).

We need not decide, however, whether additional foundational testimony was required to support the prosecutors proffered inference because Yes trial counsel both forfeited and conceded the issue. First, trial counsel forfeited the claim by failing to object to the prosecutors argument. (See People v. Proctor (1992) 4 Cal.4th 499, 543544 [when effect of improper argument was curable by admonition, failure to object and request admonition forfeits the argument on appeal]; Gamache, supra, 48 Cal.4th at p. 371 [claims under state and federal law subject to forfeiture by failure to object].) Second, she conceded the point in her own closing argument. She told the jury, "When the phone calls come in and they are not answered, theres been no testimony that Edward Reding ever even answered the phone when people called," implicitly acknowledging that the incoming calls went unanswered.⁸

8 Ye argues her trial attorney "did not agree to the prosecutors argument as to all the telephone calls." However, she made no attempt to distinguish among the calls or argue that any of them was something other than an unanswered incoming call.

Ye next argues that her trial counsels failure to object to the statements during closing argument should be deemed ineffective assistance of counsel addressable on direct appeal. When an ineffective assistance of counsel claim is raised on direct appeal, "[i]n the usual case, where counsels trial tactics or strategic reasons for challenged decisions do not appear on the record, we will not find ineffective assistance of counsel... unless there could be no conceivable reason for counsels acts or omissions. [Citations.]" (People v. Weaver (2001) 26 Cal.4th 876, 926.) We cannot say that there could be no conceivable reason for the decisions. "Whether to object at trial is among the minute to minute and second to second strategic and tactical decisions which must be made by the trial lawyer during the heat of battle. [Citation.] Although trial counsel may have the duty to protect the record when their clients trial interests are truly at stake, they have no duty to object simply to generate appellate issues." (People v. Riel (2000) 22 Cal.4th 1153, 1202 (Riel); see also People v. Thompson (2010) 49 Cal.4th 79, 127, fn. 16 (Thompson) ["a defendant cannot automatically transform a forfeited claim into a cognizable one merely by asserting ineffective assistance of counsel"].)

Yes trial counsel may have determined that she could otherwise use the time line from the telephone records to her advantage. In her opening statement, counsel told the jury "You must pay attention to the time line. Pay careful attention. There are a lot of times. There are phone records. Pay attention to them. Write them down. The evidence will show that they are critical." She may have decided an objection would have drawn more attention to the damaging aspect of the unanswered calls, thus prejudicing her client (People v. Harris (2008) 43 Cal.4th 1269, 1290; People v. Ghent (1987) 43 Cal.3d 739, 772-773; Fosselman, supra, 33 Cal.3d at p. 582), and that it was better strategy to challenge the inference that unanswered calls necessarily meant that Edward was dead. Defense counsels own pretrial investigation may well have revealed that the inference that the prosecution argued was factually supported, and that requiring the appearance of an additional witness would have been pointless. Because we cannot conclude that Yes trial attorney had no conceivable tactical reason for failing to object to the prosecutors argument, Ye cannot establish an ineffective assistance claim on this record.⁹ B. Inclusion of Search Warrant Affidavit in Trial Exhibit

9 Ye also argues that her trial attorney provided ineffective assistance of counsel in failing to call an expert to testify about the meaning of the phone records. Ye again cannot establish this claim on direct appeal. Ye does not and cannot show that defense counsel could have presented expert testimony refuting the prosecutors interpretation of the records or testimony establishing that the records could not be reliably interpreted without additional evidence.

Ye argues that the prosecutor committed misconduct by attaching a search warrant affidavit to the Exhibit 3 phone records, thus causing the affidavit (which was not received in evidence by the court) to be viewed by the jury.

1. Factual Background

As noted ante, the prosecutor and defense counsel stipulated before trial to the admissibility of Redings home phone records, as well as records for Redings and Yes cell phones. The prosecutions first witness was Steven Sims, the Benicia Dial-a-Ride dispatcher. The prosecutor showed Sims Exhibit 3, which was premarked for identification, and had him identify "the fifth entry on this log of numbers" as a Dial-a-Ride phone number and confirm that the entry reflected his call to the Reding home on or after 1:30 p.m. on the afternoon of November 3, 2003. Later that day, the prosecutor moved Exhibit 3 into evidence without objection. The prosecutors sixth witness was Sylvester. Also later that day, while Sylvester was on the stand, the prosecutor reminded the court of the parties stipulation about the admissibility of the exhibit. He never asked Sylvester to identify the exhibit or read from it. The exhibit was not mentioned again during the presentation of evidence.

In its final instructions before sending the jury to deliberate, the court said, "During the trial several items were received into evidence as exhibits.... You will have those in the jury room, and you may examine whatever exhibits you think will help in your deliberations." Neither the trial transcript nor the clerks minutes reflect that any exhibits were actually delivered to the jury rooms, nor was there any specific request by the jurors for review of this or any other exhibit.

In her opening brief, Ye attached what she described as a copy of Exhibit 3 as an appendix to the brief (Appendix A). The purported exhibit included not only the two computer printouts of phone data described ante, but also a search warrant and affidavit, a supporting statement of probable cause, and an unexecuted return to the warrant (hereafter, collectively affidavit or search warrant affidavit). In their respondents brief, which was filed August 23, 2010, the People argued the exhibit was not part of the appellate record. They also disputed whether the affidavit was attached to the actual trial exhibit and questioned whether the exhibit ever went into the jury room. On October 5, 2010, Ye filed a Request for Transmission of Exhibits in the superior court, requesting transmission of Exhibit 3 to this court pursuant to California Rules of Court, rule 8.224.¹⁰On October 12, Ye filed her reply brief and on October 27, the superior court filed a copy of Exhibit 3 in this court.

10 All further rule references are to the California Rules of Court.

2. Burden to Produce Record on Appeal

The People argue in their respondents brief that Ye forfeited this argument by failing to provide an adequate record for the courts review. (See Rancho Santa Fe Assn. v. Dolan-King (2004) 115 Cal.App.4th 28, 46 [failure to provide adequate record forfeits claim].)

In criminal appeals, "[e]xhibits admitted in evidence, refused, or lodged are deemed part of the record, but may be transmitted to the reviewing court only as provided in rule 8.224." (Rule 8.320(e), italics added.) However, Ye had a responsibility to put before this court every part of the record that she cited in support of her claims on appeal. (See rules 8.360(a), 8.204(a)(1)(C).) Rule 8.224 requires that a request for transmittal of an exhibit be made "[w]ithin 10 days after the last respondents brief is filed or could be filed under rule 8.220 ____" (Rule 8.224(a)(1).) After that time period expires, the rule provides that a party "may apply to the reviewing court for permission to send an exhibit to that court." (Rule 8.224(c).) Moreover, a reviewing court may at any time direct the superior court to transmit an exhibit. (Rule 8.224(d).) The People have not complained about the possible untimeliness of Yes October 5, 2010 request for transmittal of Exhibit 3. If the People had established that the request was untimely, we would have been able to remedy the error by directing the superior court to transmit the record to us on our own motion. In the circumstances, we would have done so because the exhibit already was "part of the record" (rule 8.320(e)), and, although Ye followed improper procedures, she put an accurate copy of the exhibit before the court at the time she filed her opening brief.

We conclude Exhibit 3 is currently properly before us and we may properly consider the exhibit when assessing Yes claim on appeal.

3. Forfeiture by Failure to Object

The People argue Yes trial attorney forfeited this claim by not objecting when the exhibit was received in evidence. Although they concede that the record is silent about whether defense counsel was aware that the affidavit was included in the exhibit at that time, the People argue "[i]t is fair to assume[]... that attorneys are fully aware of the contents of exhibits offered into evidence by opposing counsel, particularly when those exhibits are handled in open court as this one was." We agree. All trial exhibits are presented in open court, and are available to counsel throughout the trial. It is inconceivable that trial counsel could be unaware of the content of an exhibit, particularly one for which foundation had been stipulated. ¹¹ It was incumbent on counsel to bring to the courts attention the need for redaction of an exhibit, particularly when no objection was made to its admission in the first instance. The claim is forfeited.

11 As a preliminary matter, Ye argues she could not have reviewed the exhibit and raised a timely objection because the prosecutor did not even have Exhibit 3 with him when defense counsel stipulated to its admissibility. The record does not support this argument. As we have observed, what appears to have been the same exhibit was used at the first trial, and was identified on the record ("reviewed... thoroughly" by trial counsel here) as "a return of a search warrant, pertaining to records from [D]r. Michael Redings home phone" and as the billing records for the residence phone number of Dr. Redings house. At this trial, these phone records were introduced during the testimony of Sylvester, who testified that he obtained the phone records by search warrant.

4. Merits of the Claim

Even if it were not forfeited, the claim fails. Ye argues the inclusion of the affidavit in Exhibit 3 if sent to the jury, whether intentional or inadvertent, amounted to prosecutorial misconduct because it placed otherwise inadmissible materials into evidence at trial. She argues the misconduct violated her confrontation rights because the affidavit constituted hearsay and that the contents of the affidavit were highly prejudicial.

The People dispute whether the search warrant affidavit was included as part of Exhibit 3 at any relevant time during the trial.¹² We disagree. The record confirms that the search warrant and affidavit were in fact part of the exhibit at both the first and second trials. It is immaterial, however, whether the search warrant documents were included when the exhibit was shown to witnesses or otherwise handled in open court at trial because, insofar as the record discloses, it was never published to the jury and the content of the warrant affidavit was never discussed during trial. The only question is whether the record supports a claim that any juror viewed the unredacted exhibit during deliberations.

12 The People request that we take judicial notice of comments made by an attorney representing Ye during a June 2010 hearing on Yes motion for postconviction DNA testing. Yes counsel there stated that he didnt recall having seen the search warrant affidavit on his review of the exhibits in connection with Yes new trial motion.
The People should have instead moved to augment or correct the record rather than asking us to take judicial notice of the transcript. (See rules 8.320(c)(9)(A), 8.340(a), (c).) We will treat the motion as one to augment, and grant it. However, we find the statements to be of limited probative value.

In its final instructions to the jury before deliberations, the court did state that the exhibits would be provided to the jury during deliberations. There is, however, no other indication in the record that any of the exhibits actually were delivered to the jury room. There were a total of 71 prosecution exhibits and 26 defense exhibits received in evidence. These included not only documents and photographs, but forensic evidence (e.g. the victims clothing (Exhibit 29), tools found in the downstairs bathroom (Exhibit 30), blood samples (Exhibit 32), a trash bag full of debris (Exhibit 34), sandals (Exhibit 33), and several exhibits containing human hair (Exhibits 31, 35-38).) We would view it as inherently implausible that the entirety of the exhibits received in evidence at trial, including forensic samples, were simply carried into the jury room without any prior review, without any record, and without specific jury request.

Often certain types of trial exhibits (such as weapon, controlled substances and forensic samples) require special handling and may need to be displayed to the jury in the controlled setting of the courtroom with the judge, the parties and counsel present. We would expect that exhibits ordinarily would not be sent to the jury room without at least review by the court, the courtroom clerk, and counsel, and with a record made of what is being provided. In the absence of a clear record otherwise, we will not presume that court personnel and the court itself would cavalierly ignore the responsibility to maintain the integrity of the trial evidence and surrender control of that evidence to a lay jury without careful, and documented, review.

Ye cannot show on this record that she was prejudiced by inclusion of the affidavit in Exhibit 3 because she cannot demonstrate that the jury ever actually saw it. C. Testimony About DNA Evidence

Ye argues that Wraxall presented scientifically invalid testimony, specifically his testimony that nuclear DNA taken from tissue that was attached to the hair on Edwards shoulder "belong[ed]" to Ye. She argues the prosecutor committed misconduct by eliciting the testimony, and her trial attorney provided ineffective assistance of counsel by failing to object to the testimony.

1. Factual Background

Wraxall testified that the hair shaft itself can only be tested for mitochondrial DNA, but tissue that is attached to hair can be tested for nuclear DNA, which is a more discriminating test. He testified that the hair taken from Edwards shoulder had tissue attached to it and the nuclear DNA profile from that tissue "matched Ms. Ye, but did not come from [Edward]." The prosecutor asked if the tissue "belong[ed]" to Ye and Wraxall said it did. He did not provide any specific information about the DNA testing results or any statistical calculations to support his conclusion that the DNA taken from the tissue belonged to Ye.

2. Scientific Validity of the Testimony & Prosecutorial Misconduct

Ye argues that nuclear DNA evidence establishes "the odds that another individual, in addition to the suspect, would have the same 13 DNA [allele] markers" as the sample, but does not establish "that the suspect was the person whose DNA was found at the crime scene." Such an assertion, Ye contends, is known as the " prosecutors fallacy. " She contends any testimony that DNA testing proves DNA in a given sample "belongs" to a specific individual is scientifically defective evidence.

We recently addressed and rejected this very argument in People v. Cua (2011) 191 Cal.App.4th 582 (Cud). We first explained that the challenged testimony was not an example of the so-called "prosecutors fallacy," as Cua contended. (Id. at p. 597.) Instead, the fallacy alleged by Cua was that it was "necessarily scientifically invalid for a DNA expert to testify that the evidentiary sample was left by the defendant—what is known as source attribution. [Citations.]" (Ibid.) We disagreed: "We know of no categorical prohibition, at least in this state, on source attribution—expression by an otherwise qualified expert of an opinion that the quantitative and qualitative correspondence between an evidentiary sample and a known sample from a defendant establishes identity to a reasonable scientific certainty. The reported cases and the scientific literature suggest otherwise." (Id. at pp. 600-601, fn. omitted.) The cases cited by Cua, which are also cited by Ye, did not support his contrary position. (Id. at pp. 599600, discussing People v. Nelson (2008) 43 Cal.4th 1242 (Nelson) & Brown v. Farwell (9th Cir. 2008) 525 F.3d 787, reversed sub nom. McDaniel v. Brown (2010) 558 U.S. _, 130 S.Ct. 665.)

In Cua, the expert testified that the DNA profiles of the DNA taken from the bloodstain and from Cua matched at 15 separate loci. (Cua, supra, 191 Cal.App.4th at p. 601.) "While the criminalist was not asked to calculate the rarity statistic of such a match using the product rule, we can readily infer that the odds would also be here, as in Nelson, astronomical and tantamount to saying that defendant left the evidence at the crime scene. (Nelson, supra, 43 Cal.4th at pp. 1259, 1247.) [¶] If Cua had any factual or legal basis to challenge the experts testimony, it was his obligation to fairly inform the trial court, as well as the party offering the evidence, of the specific reason or reasons the objecting party believes the evidence should be excluded, so the party offering the evidence can respond appropriately and the court can make a fully informed ruling. [Citation.] Had he made such an objection, the prosecution could have elicited the statistical support for the opinion, and the trial court would have had the opportunity to make a fully informed ruling. [Citation.] There are readily apparent tactical reasons why he may have chosen not to do so." (Cua, at p. 601.)

Here, Wraxall did not testify about the number of loci in the DNA profile of the hair and Yes DNA profile matched. However, he testified that the testing was done on nuclear DNA, which typically results in extremely low random match probabilities. (Cua, supra, 191 Cal.App.4th at pp. 595, 599.) If Ye had any factual basis to challenge Wraxalls testimony, it was her obligation to bring it to the trial courts attention and afford the prosecutor an opportunity to respond, so the trial court could resolve the matter on a full record. (See id. at p. 601.) There are readily apparent tactical reasons why she may have chosen not to do so, as bringing the statistical information to the jurys attention may have emphasized this damaging evidence. (See id. at pp. 601, 606-607.) D. Medical Testimony About Cause of Death

Ye argues her trial attorney provided ineffective assistance by failing to adequately challenge Josselsons testimony about the cause of Edwards death both in cross-examination and by failing to call a defense expert witness to contradict Josselsons testimony. Ye raised this issue below in her unsuccessful motion for new trial.

1. Josselsons Prior Testimony

Ye argues Josselsons testimony that Edward was killed by a combination of blunt force trauma and manual strangulation could have been effectively impeached by his prior testimony at the preliminary hearing and first and second trials, and contends that there was no conceivable strategic reason for failing to do so. We disagree on both counts.

Ye focuses on Josselsons lack of certainty about whether Edward was hit on the head and then strangled, or strangled and then hit on the head. There were no significant inconsistencies between Josselsons prior testimony and his testimony at the third trial. On all four occasions, Josselson testified that he could not be sure whether Edward was strangled or hit on the head first. When he offered an opinion, he consistently testified that the blows probably occurred first because that sequence would explain why he bled from the head wounds (he was still alive when the blows were inflicted) or why the strangulation resulted in few injuries (he was unconscious at the time) or both. He consistently testified that the blows to the head could have rendered Edward unconscious. At the second trial, he also held out the possibility that Edward was strangled first and that the bleeding from the head wounds would be explained because his heart would have kept beating for a few minutes after he was strangled. However, this theory did not contradict his testimony at the third trial; it was consistent with his testimony that he could not be sure whether the strangulation or head blows occurred first.

In any event, Ye never explains why it would matter to the jury or to her defense whether the blows to the head or the manual strangulation occurred first. The critical questions were whether Edward died from a fall or from an assault and when the death occurred. Any dispute about the sequence of the mechanisms of his death added nothing to the prosecutions case that Ye rather than a third party caused the death.

Because the claim lacks merit, we need not consider whether Yes trial attorney might have had a strategic reason for failing to cross-examine Josselson on the matter.

2. Defense Expert Witness

Ye also argues that her trial attorney provided ineffective assistance by failing to call Dr. Paul Herrmann as a witness to contradict Josselsons testimony about the cause of Edwards death. On appeal, Ye argues that Herrmanns testimony would have undermined Josselsons testimony that Edward was strangled and thus undermined the evidence he was assaulted with an intent to kill. We need not address the merits of this argument because Ye cannot show that her trial attorneys performance was deficient in not presenting this testimony. Therefore, we reject the claim.

a. Factual Background

In support of the motion for new trial, Ye presented the declaration and testimony of Paul Herrmann, a forensic pathologist with more than 40 years of experience. Herrmann averred that he had been retained by Yes trial attorney before the third trial to review and evaluate Josselsons autopsy report. He reviewed the autopsy report, photographs of the crime scene and Josselsons preliminary hearing testimony. Herrmann took notes during his review and, although he did not remember talking to Yes trial attorney after the review, he was "sure" that he did.

At the hearing on the motion for new trial and in his declaration in support of the motion, Herrmann testified that he did not believe Edwards death was accidental. He believed it was a homicide. He also did not believe Edward died solely due to the head wounds. Edward might have suffered acute heart failure in response to an attack due to his poor medical condition. "[T]here are other things that obviously indicate that there was a struggle, or some type of increased activity going on at about the time of this mans death, and under those circumstances, an enlarged heart can be... a contributing factor to the death."¹³ Also, Edward could have died when his air supply was cut off as a result of manual strangulation or positional asphyxiation. Herrmann testified that it could not be determined to a medical certainty that Edward was manually strangled. Herrmanns original notes indicated that he could not dispute the cause of death, as Josselsons conclusion of a combination of blunt-force trauma and manual strangulation was "certainly... a possibility." If Edward was unconscious, it would have been possible, with just two fingers and very little pressure, to cut off his airway and cause his death without causing a typical symptom of strangulation, which was missing. It was also a "small possibility," consistent with the evidence, that Edward was knocked unconscious due to blows on his head, which would allow for easier obstruction of the airways without much compression.

13 Clarifying terminology, Herrmann testified, "I wouldnt say that the heart attack is the cause of death in this case.... [¶]... [¶]... I dont call it a heart attack. Most of us think of a heart attack as a thrombus of the coronary artery. Its an acute cardiac arrhythmia causing death. So you can call it a heart attack if you want to, but thats not the usual term for a heart attack, but sudden death from heart disease."

In her motion for new trial, Ye argued that Herrmanns testimony could have raised a reasonable doubt about whether Edward was murdered. The court rejected the argument. Herrmann in fact opined that Edwards death was a homicide. Noting that it had presided over two full trials and one partial trial in the case and was very familiar with the facts, the court concluded that Herrmann "had nothing to really say that was going to be of assistance to the defense." "[T]here was really no difference as to whether the cause of death was from the striking on the head or the strangulation.... [¶]... He actually either died of a heart arrhythmia after a sudden excitement and events of being struck on the head, or he passed out from being struck on the head and in the slumped position with his head up against the wall and compressed on his chest, the airway was closed and he asphyxiated himself. I mean, it all comes down to the same thing."

b. Analysis

The trial court rejected the new trial motion on the ground that Herrmanns testimony could not raise a reasonable doubt about whether Edward was murdered. On appeal, however, Ye argues the testimony could have raised a reasonable doubt about whether the perpetrator acted with malice aforethought, that is whether the crime was murder or manslaughter. Her argument might find support in the law. (See People v. Garcia (2008) 162 Cal.App.4th 18, 29-31; People v. Burroughs (1984) 35 Cal.3d 824, 835, disapproved on another ground in People v. Blakeley (2000) 23 Cal.4th 82, 89; People v. Butler (2010) 187 Cal.App.4th 998, 1007; People v. Phillips (1966) 64 Cal.2d 574, 579, fn. 2 [testimony to a " reasonable medical certainty " sufficient to prove fact beyond a reasonable doubt], disapproved on another ground in People v. Flood (1998) 18 Cal.4th 470, 490, fn. 12; People v. Stamp (1969) 2 Cal.App.3d 203, 209, fn. 2 [same].)

However, two unresolved issues preclude us from finding ineffective assistance of counsel. First, it is not clear on this record that Herrmann advised Yes attorney before trial that his testimony would support the claim she now makes. The only substantial difference between the opinions expressed by Hermann and those of Josselson was that Herrmann did not believe that manual strangulation could be established as a matter of reasonable medical certainty. He agreed that Josselsons conclusion of a combination of blunt-force trauma and manual strangulation was "certainly... a possibility." Yes trial attorney may well have had reasonable tactical reasons for electing not to present Herrmanns testimony, particularly since Hermann confirmed that this was a homicide, whatever the exact mechanism of death. She might well have concluded that it would be preferable to focus Yes defense on her alibi and denial of any responsibility for Edwards death (a tactic that seems to have been reasonably successful in the first trial) rather than attempting to mitigate the responsibility of what she alleged was a culpable third party. "[D]ecisions... whether to put on witnesses are matters of trial tactics and strategy which a reviewing court generally may not second-guess. [Citation.]" (People v. Mitcham (1992) 1 Cal.4th 1027, 1059.) E. Hearsay Testimony About Investigation of Reding

Ye argues her attorney provided ineffective assistance by failing to object to McBrooms testimony that he eliminated Reding as a suspect based on an investigation report he received from Oettinger.

1. Factual Background

In its rebuttal case, the prosecution recalled McBroom and elicited testimony that he was the lead detective on Edwards homicide and that he directed Oettinger to investigate Redings whereabouts on November 3, 2003. The prosecutor then asked:

"[Prosecutor:] Did you learn information from—did you, yourself, learn information, the results of the investigation from Lieutenant Oettinger?
"[McBroom:] Yes, sir.
"[Prosecutor:] Did you cause Doctor Reding to be investigated further as a result of what it is you learned from... Oettinger?
"[Defense Counsel:] Objection, double hearsay.
"THE COURT: Its not asking for hearsay. Its just asking for his actions, so I will permit him to answer this question yes or no.
"[McBroom:] Can you repeat the question?
"[Prosecutor:] As a result of the report from... Oettinger, did you cause any further investigation to be conducted as it relates to Doctor Redings whereabouts?
"[McBroom:] No, I did not.
"[Prosecutor:] At that time did you exclude Doctor Reding as a suspect, based on what you had learned?
"[McBroom:] Yes, sir.
"[Defense Counsel]: Objection, double hearsay.
"THE COURT: The objection is overruled."

Oettinger never testified about the investigation of Reding. In his final closing argument, the prosecutor argued, "There is some intimation [in the defense closing argument] that [Reding] was never a suspect. Well, you heard Detective McBroom testify, I ordered people to investigate Doctor Reding. We investigated [D.]..., and we investigated the defendant. And who was eliminated as a result of those investigations? Two out of three of them. The third one sits in this courtroom." Defense counsel did not object to this argument.

2. Analysis

Ye argues her trial attorney provided ineffective assistance by failing to object to McBrooms rebuttal testimony about the investigation of Reding. The People note that Ye objected twice on hearsay grounds, but the objections were overruled, and they contend the courts ruling was correct. Ye responds that her trial attorney did not adequately object to all of the objectionable questions and that the courts action in overruling of her objections violated his Confrontation Clause rights.

The evident purpose for which the testimony was elicited was to obviate defense arguments that the police investigation ignored other possible suspects, including Reding, and focused solely on Ye. Defense Counsel argued that the "circle" of the investigation was "too small." She said "Myopic means cant really see, or have this one focus on my client and ignore the rest of the world, ignore the rest of the circle. They should have pushed that circle bigger. It should have included some other people in the circle when it came to the collection of evidence, when it came to an investigation of this crime." She argued the failure of the police to collect physical evidence from Reding. As the court observed in overruling the defense objections to McBrooms testimony, the evidence could be properly received for a limited nonhearsay purpose—to explain the detectives actions in defining the scope of his investigation.

Yes argument is that the testimony should still have been excluded as hearsay because it essentially communicated the content of out-of-court statements—Oettingers statements about the statements of people he questioned during his investigation of Reding—for the purpose of proving the truth of both sets of statements. In other words, McBrooms testimony communicated to the jury that Oettingers investigative report accounted for Redings whereabouts on November 3, 2003, for the purpose of proving that Reding had a valid alibi for the time period in which Edward might have been murdered. (See Bell, supra, 49 Cal.3d at p. 532 [prosecutor committed misconduct by asking question that was broader than necessary to make relevant point and that mentioned inadmissible hearsay]; People v. Douglas (1990) 50 Cal.3d 468, 514 [" [e]vidence of a declarants statement that is offered to prove, not the truth of the matter stated in such statement expressly, but the truth of the matter that is stated in such statement by implication, is hearsay evidence "; italics added]; People v. Melton (1988) 44 Cal.3d 713, 743-744 [evidence should have been excluded where "the principal purpose of the prosecutors inquiry was to suggest simply that [one witness] did not believe [another witness], [and] [t]he jury was invited to agree with [that] assessment"; italics added and omitted]; Evid. Code, §§ 350, 352.)

However, since the evidence was admissible for the more limited purpose, Yes trial attorney forfeited the issue by failing to request a limiting admonishment or instruction to the jury that the evidence should not be considered evidence of the truth of the implied results of Oettingers investigation, and for not objecting to the prosecutors final argument that Reding and D. were "eliminated" as suspects as a result of the investigation. (See People v. Proctor, supra, 4 Cal.4th at pp. 543-544.) Further, Ye again fails to affirmatively meet her burden of establishing prejudice and the likelihood of a different result had an appropriate limiting instruction been given. F. Additional Ineffective Assistance of Counsel Claims

Ye argues that her trial attorney provided ineffective assistance in several other respects. None of these arguments has merit.

1. Inadequate Cross-Examination of Reding

Ye argues her trial attorney provided ineffective assistance of counsel by failing to adequately impeach Reding with his prior testimony on three separate issues.

a. Prior Testimony About Who Wore Sandals

Ye argues on appeal that her attorney could have impeached Redings testimony that the sandals in evidence belonged to Ye because "at the first trial [he] made no claim that these brown sandals were [Ye]s."¹⁴ In fact, at the first trial Reding testified with greater specificity than at the third trial that he was sure he never wore the sandals in evidence, that his father never wore sandals in the home, that his sandals looked different from the sandals worn by D. or Ye, and that his sandals looked different from the sandals in evidence. This testimony supported an inference that the sandals in evidence belonged to D. or Ye. Ye does not argue that an ambiguity about whether they belonged to her or D. would assist her case. Ye made no effort at trial to raise suspicions about her sons culpability. Because Redings testimony at the first trial was specific and it supported an inference that the sandals in evidence belonged to Ye, a reasonably competent attorney could conclude there was a danger of prejudice in using the testimony to impeach Reding at the third trial and thus could reasonably decide not to do so.

14 Ye also argued in her opening brief that Redings prior testimony about the sandals contradicted the prosecutors opening statement that Reding never wore sandals in the home and that her trial attorney provided ineffective assistance by failing to challenge the prosecutors statements. In their opposition brief, the People point out that the prosecutor said in his opening statement that Edward, not Reding, never wore sandals in the home and that this statement was supported by the evidence at trial. Ye concedes her error in her reply brief.

b. Prior Testimony About Pretext Call

At the first trial, Reding was asked three times on cross-examination if he made a call to Ye while the call was being taped by the police (i.e., a pretext call) and he responded each time that he did not. The defense later called a law enforcement witness who testified that he had Reding place a pretext call to Ye from the Benicia Police Department on November 4, 2003, and that Reding knew the call was being tape recorded. At the third trial, the prosecutor asked Reding on direct examination if he recalled participating in a phone call to Ye in the evening of November 4, 2003, and he said he did. The prosecutor then asked if he recalled that he had denied participating in the pretext call during the first trial. Reding testified that he recalled the prior testimony (which the prosecutor read to the jury and had Reding confirm) and testified that by the time of the third trial he recalled that he did participate in the call. The prosecutor elicited testimony that Reding was in shock when he made the call because he had only recently learned his father had been murdered.

The prosecutor brought out the inconsistent prior testimony on direct examination as a way of neutralizing its impeachment value, and defense counsel had little to add to the subject on cross-examination. As shown by the prosecutors closing argument at the first trial, unproductively harping on the issue might have fed into a prosecution argument that defense counsel was trying to shift the focus away from her client by putting Reding on trial. Moreover, defense counsel had far more immediate impeachment evidence which she pursued in her cross-examination of Reding—his false testimony from earlier that day regarding a phone conversation he had after Sylvesters testimony about the air conditioning unit. In these circumstances, defense counsel had a readily apparent tactical reason for not reiterating impeachment evidence already before the jury, and since the evidence was before the jury, Ye also cannot show she suffered any prejudice.

c. Prior Testimony About Bathroom Cleanup

On direct examination, Reding was asked how he chose to clean up the bathroom after Edwards body was removed and he responded, "I chose to clean it up myself. It felt very impersonal to have some service [come to clean it up], and I felt a duty to my father to clean it up, so I stayed and a friend came over to sit vigil with me and I cleaned the bathroom up that night." (Italics added.) In other words, he volunteered the information that someone accompanied him as he cleaned the bathroom. On cross-examination, Reding acknowledged that friend was Greenbaum, the person who accompanied Reding on his trip to the health retreat shortly after Edward returned home from the hospital in August 2003. At the first trial, Reding had not mentioned that anyone was with him while he cleaned the bathroom. However, he was not specifically asked if he was accompanied by anyone at that time.

Ye argues that her trial attorney should have impeached Reding with his failure to mention Greenbaum when he described his clean-up of the bathroom. She postulates that her attorney would have elicited testimony that Reding deliberately omitted mention of Greenbaum at the first trial, which would suggest he was being less than fully candid on the witness stand, or that he forgot about Greenbaum when he testified at the first trial, which would suggest his memory was unreliable. As we have noted however, it is difficult to effectively impeach a witness with a lack of response to a question that was never asked. Moreover, the fact that at the third trial Reding volunteered the information that Greenbaum was with him during the clean-up would seriously undermine any implication that Reding deliberately withheld the information at the first trial. Regarding Redings unreliable memory, defense counsel already had other more potent impeachment evidence.

2. Failure to Object to Hearsay Testimony About Yes Threats

Ye argues her trial attorney provided ineffective assistance by failing to object to Michael Jr.s hearsay testimony that Reding told him about Yes threats before November 3, 2003.¹⁵

15 Ye argued in her opening brief that trial counsel at the first trial successfully moved to exclude this evidence as hearsay. However, the People showed in their opposition brief that this was incorrect, and Ye conceded her error in her reply brief.

Yes claim fails because the testimony was not inadmissible hearsay. Evidence Code section 1236 provides, "Evidence of a statement previously made by a witness is not made inadmissible by the hearsay rule if the statement is consistent with his testimony at the hearing and is offered in compliance with Section 791." Evidence Code section 791, subdivision (b) provides, "Evidence of a statement previously made by a witness that is consistent with his testimony at the hearing is inadmissible to support his credibility unless it is offered after: [¶]... [¶]... [a]n express or implied charge has been made that his testimony at the hearing is recently fabricated or is influenced by bias or other improper motive, and the statement was made before the bias, motive for fabrication, or other improper motive is alleged to have arisen." At the time Michael Jr. presented the challenged testimony, Reding had already testified about Yes threats and defense counsel had attempted to impeach him by eliciting an acknowledgement that he first wrote down the alleged threats at the request of the district attorney in 2004 or 2005. The clear implication of the cross-examination was that the threat were fabricated or exaggerated after Edwards death in order to inculpate Ye. Indeed, in opening argument, defense counsel had told the jury, "The doctor will pin down this time when he goes on vacation as the pivotal point in this case. He will say although hes been with Ms. Ye for three years, within three months she becomes a dangerous woman, threatening him. Those threats are told later. Months later he makes a list. The reality is, nobody else hears about the threats, and if they do, they are looking back from 2008 to 2003. No one comes forward and says, []!, too, heard these threats. This is something he made up."

In this context, Michael Jr.s testimony about Redings prior consistent statements were admissible under Evidence Code sections 791, subdivision (b) and 1236 to bolster Redings credibility.

3. Failure to Argue Stomach Contents Evidence

Ye argues her trial attorney provided ineffective assistance by failing to argue to the jury that the evidence that Edwards stomach was empty proved he was killed after Ye had left the home.

Josselson testified that Edwards stomach contained only a small amount of fluid and no identifiable food particles or pills, and he told the jury it generally takes about four to six hours for a persons stomach to empty after eating, although there is some variation. Ye testified that she made breakfast for Edward and ate breakfast with him after she returned from taking D. to school. Because school began at 8:00 a.m., she presumably returned home around that time. If Edward ate between 8:00 and 8:30 a.m., Josselsons testimony would raise considerable doubt about whether he died by 10:00 a.m. However, no other evidence corroborated Yes testimony about when Edward ate that morning. The only other evidence on the subject was Redings testimony that Edward typically got up at 5:00 or 6:00, took his vitamins, ate cereal or oatmeal, and read the paper, and that when Reding got up at about 7:00 a.m. on November 3, 2003, Edward was already awake and dressed. On this evidence, the jury could have reasonably inferred that Edward ate sometime between 5:00 and 7:00 a.m., or three to five hours before 10:00 a.m. In light of Josselsons testimony, that timeline would have been consistent with a finding that Ye killed Edward at about 10:00 a.m. Alternatively, the jury could have inferred (as the prosecutor contended in closing argument) that Edward never ate breakfast that morning because Ye killed him before he had a chance to do so. That scenario also would have been consistent with Josselsons testimony.

4. Failure to Obtain Certain Transcripts from First Trial

Ye argues her trial attorney provided ineffective assistance because she failed to obtain transcripts of the hearings on motions in limine and the arguments to the jury from the first trial. She produces no evidence on appeal that the attorney failed to do so. Even if we were to assume the truth of the assertion, Ye has not shown how the omission prejudiced her at trial. She argues her trial attorney would have been alerted to Redings denial of the pretext call if she had read the defense closing argument at the first trial, but we have already concluded that trial counsel committed no error with respect to that issue. Ye also argues that her attorney would have noticed the defenses successful motion in limine excluding Michael Jr.s testimony about Yes threats, but as already noted no such motion was ever granted at the first trial. Failure to affirmatively establish prejudice is fatal to a claim of ineffective assistance of counsel. (People v. Rodrigues (1994) 8 Cal.4th 1060, 1126, cert. den. sub nom. Rodrigues v. California (1995) 516 U.S. 851.) G. Denial of Trial Continuance

Finally, Ye argues the trial court committed prejudicial error by denying her request for a continuance of the trial. She argues that the deficient performance of her trial attorney on numerous grounds resulted from the trial courts denial of a continuance, which deprived her of adequate time to prepare for trial. Thus, she argues, this is her strongest issue on appeal. The claim lacks merit.

Kathryn Barton, Yes attorney at the third trial, was appointed to represent Ye on March 27, 2008, the day after a mistrial was declared at the second trial. The court offered to put the matter over a few days so Barton could review the record and be prepared to discuss a trial date. Barton agreed and suggested a follow-up hearing on April 3. She assured the court this gave her enough time. The prosecutor informed the court that he was trying to contact all of his witnesses about their vacation schedules so that he too would be prepared to discuss the trial date at the April 3 hearing. At the April 3 hearing, Barton requested a September trial date. The court suggested a trial date of September 16. The court asked Barton, "[W]ill that give you sufficient time to be ready to go?" and she responded, "Yes, your honor, thats why Im asking for September so we dont need a continuance." The prosecution said the date looked fine to him "[s]o far," but he had only asked his witnesses about vacation dates in June, July and August, and he would have to follow up with them about September. The court set trial for September 16.

At a July 10, 2008 readiness conference, Barton was not present and a colleague appeared in her place. The court asked the prosecutor if the case was "on track to go forward" and he said he had not heard anything to the contrary from Barton. The court confirmed the trial date, set a readiness conference for August 14, and said he wanted Barton present at that hearing to make sure the case was on track for trial. On August 14, Barton filed a motion to continue stating that she had just learned that Yes parents had left the country and were not planning to return until October. Barton acknowledged that she had not subpoenaed Yes parents to appear as witnesses. The court ruled there was no good cause for a continuance because Ye had made no effort to subpoena the witnesses and they had ample time to return if they wanted to testify in Yes defense. Trial commenced September 23, 2008.

Continuances of criminal trials are disfavored because "the people, the defendant, and the victims and other witnesses have the right to an expeditious disposition" of the case. (Pen. Code, § 1050, subd. (a).) They may be granted only upon a showing of good cause. (Id. at subd. (e).) To obtain a continuance, a party must file and serve a written notice of the request "together with affidavits or declarations detailing specific facts showing that a continuance is necessary" or show good cause why it was unable to do so. (Id. at subds. (b), (c).) A denial of a continuance is reviewed for abuse of discretion. (People v. Grant (1988) 45 Cal.3d 829, 844.)

Here, Ye moved for a continuance on the sole ground that Yes parents were unavailable to testify on the scheduled trial schedule. Ye does not argue the trial court abused its discretion in denying a continuance on this ground. Ye inaccurately contends that her attorney also sought a continuance on the ground that she had inadequate time to prepare for trial. She did not. She cites only a single conclusory statement at the end of her attorneys affidavit to support this assertion. Further, Yes counsel made no argument at the hearing on her continuance motion that she required additional time for trial preparations.

In any event, it would have been well within the trial courts discretion to deny a continuance had one been requested on the ground that Ye required additional time to prepare for trial. Although "a trial court may not exercise its discretion over continuances so as to deprive the defendant or his attorneys of a reasonable opportunity to prepare [citations]," (People v. Snow (2003) 30 Cal.4th 43, 70), absolutely no facts were presented in counsels declaration, or at the motion hearing, to support a claim that she had inadequate time to prepare, or that she required additional time to develop or pursue a defense. On the contrary, defense counsel repeatedly assured the court that the trial date, set consistent with her original request, afforded her ample time to prepare. The trial court did not abuse its discretion in denying Yes request for a continuance of the trial.

III. Disposition

The judgment is affirmed.

Bruiniers, J. We concur: Jones, P. J. Needham, J.