People
v.
Woods

COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIASep 6, 2018
D073605 (Cal. Ct. App. Sep. 6, 2018)

D073605

09-06-2018

THE PEOPLE, Plaintiff and Respondent, v. LEONARD TERRANCE WOODS, Defendant and Appellant.

Arthur B. Martin, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina and Lynne G. McGinnis, Deputy Attorneys General, for Plaintiff and Respondent.


NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. RIF1103914) APPEAL from a judgment of the Superior Court of Riverside County, Michael B. Donner, Judge. Affirmed. Arthur B. Martin, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina and Lynne G. McGinnis, Deputy Attorneys General, for Plaintiff and Respondent.

In this cold-case murder prosecution, a jury convicted defendant Leonard Terrance Woods of the murder of Judy G. committed some 24 years earlier. (Pen. Code, §§ 187, subd. (a), 12202, subd. (b)(1).) He appeals, contending his conviction was tainted by multiple instances of governmental misconduct. As we shall explain, we find certain of those actions amounted to no misconduct at all. But some unquestionably did. Even so, the remedies Woods seeks—chief among them, dismissal—remain unwarranted because on this record, insufficient prejudice appears. Since Woods received the fair trial to which he was entitled, we affirm.

California Rules of Court, rule 8.90(b) states that we "should consider referring to" certain individuals "by first name and last initial or, if the first name is unusual or other circumstances would defeat the anonymity, by initials only" in order to protect those individuals' privacy. That list of individuals specifically includes "[v]ictims in criminal proceedings." (Id., rule 8.90(b)(4).) We recognize that the privacy concerns underpinning this rule might not be so strong in a case like this one where the victim died over 20 years ago. Nevertheless, we see no reason to depart from the general rule here and so we refer to the victim by first name and last initial once and thereafter by first name only. In keeping with the spirit of the rule, we also refer to one civilian witness (Tippi) by first name only given the distinctiveness of her moniker. (See id., rule 8.90(b)(10), (11).)

Further statutory references are to the Penal Code.

FACTUAL AND PROCEDURAL BACKGROUND

The Crime

Judy and Woods lived in the same two-building apartment complex, albeit each in separate buildings. Woods referred Judy to the complex after the two worked together and dated casually. Leading up to the winter of 1992, neighbors saw them together with some frequency at varying times of day and night. Whether they continued to be romantically involved was unclear; both had other suitors.

Their relationship—whatever its nature—was not without some strife. A neighbor overheard the two arguing when Woods visited Judy's apartment. And the apartment manager saw them argue "[o]n several occasions." One particular spat was noteworthy. Without permission, Judy cut a lock off Woods's storage unit and took his toolbox, ostensibly because he owed her money. She asked a friend to hold onto it. The friend did so for about a month until her husband became too uncomfortable with the situation. The toolbox was then returned to Judy. About a year and a half later, toward the end of February 1992, the apartment manager saw Woods and Judy arguing about the toolbox. Woods was "pretty animated" and appeared to be demanding its return. Judy was "just kind of being very passive."

A few days later around 5:30 a.m., unusual sounds appeared to emanate from Judy's apartment. A neighbor who shared a common wall with her "heard quite a lot of commotion"—"[l]oud noises, commotions, bumping, running, banging"—until it abruptly stopped. He thought he might have heard, among other things, a gunshot. Judy's other next door neighbor heard a male voice yelling " '[h]elp me, help me.' " Tippi, a woman who lived in a home adjacent to the apartment complex, heard a woman screaming and "one or two pops." The latter two individuals called 911. Both reported hearing shots fired.

Officers Peter Esquivel and Kevin Schroeder responded to the scene, arriving just before sunrise. Together, they approached the front door of Judy's apartment. Fresh blood was smeared across the door and its handle. A hole was broken in the window next to the door, but curtains blocked the officers from seeing inside. There was more blood on the edges of the broken window and on the ground just outside the front door. Shattered glass from the window was on the ground too, leading the officers to believe that the window had been broken from the inside.

Officer Schroeder knocked on the door. There was no response. Officer Esquivel then banged on the door with his flashlight. From inside the apartment, a "calm, authoritative" male voice asked who was there. Schroeder yelled, " 'The Police[!]' " The voice replied, " 'What do you want?' " Schroeder told him to open the door so they could talk. Suddenly, the deadbolt to the door was thrown.

Officers Esquivel and Schroeder provided conflicting testimony as to whether the door was ajar up to this point and thus slammed fully shut at the same time the deadbolt was thrown.

The officers retreated. Esquivel directed Schroeder to wait by a neighboring apartment. Meanwhile, Esquivel called for backup and moved to the rear of the complex, toward a vantage point where he could see the front door, front windows, and balcony—the three primary exits he identified from the apartment. As Esquivel changed positions, he maintained sight of the front door and windows, but lost view of the balcony for "[m]inimally eight to ten minutes." When he regained sight of the balcony, he could see the top portion of the sliding glass door above a closed curtain. The door was open.

At some point during the response, Officer Esquivel encountered the apartment manager and asked him to watch the balcony for movement. At trial the manager testified he did not see anyone come or go through the balcony.

Officer Michael Carroll arrived next. Now a trio, the officers returned to the front door of Judy's apartment to attempt to force their way inside. No noise could be heard from within the apartment as they approached. After the officers failed to kick in the door, Esquivel broke away more of the front window and pushed the curtain aside. He saw a woman—later identified as Judy—lying on the ground, unconscious. She appeared bloodied and severely beaten. Her ankles and wrists were bound behind her back, her mouth was gagged with duct tape, and her upper body was covered by only a bra. Officer Esquivel thought, however, that she was still alive. He could not see anyone else in the apartment.

Concerned an armed suspect might be inside, the officers abandoned their plan to force entry, called SWAT, and surrounded the apartment while they waited. More law enforcement arrived. Operating under the assumption that they were dealing with a live hostage situation, the SWAT team developed a rescue plan.

Around 10:00 a.m., the officers executed their planned entry. They broke away what remained of the damaged front window. Then, they threw in a "flash bang," i.e., a distraction device, to momentarily neutralize any suspect inside with a bright flash and loud bang. After an officer reached in through the window to open the front door, they entered and quickly retrieved Judy's body. Within minutes, the apartment caught fire. The fire was an unexpected and aberrant consequence of the distraction device—it was later discovered that the ground inside had been doused with a flammable liquid. No human remains were found in the apartment after the fire was extinguished.

The Investigation

An autopsy of Judy's body revealed her cause of death to be manual strangulation. Her neck featured a combination of bruises and abrasions, worse on the right side than left. Inside her neck, there was hemorrhaging and her hyoid bone was fractured. The injuries to her neck were more consistent with an assailant using his or her left hand to strangle her than right, though it was possible both hands were used.

Judy had other significant injuries too, all apparently inflicted while she was still alive. On the back of her scalp were several lacerations caused by blunt force trauma, sufficient to cause hemorrhaging. Significant blunt force bruising and abrasions appeared on her lips, arms, and hands. She had a black eye as well, with a laceration just above it. There was nothing to indicate she was sexually assaulted.

In the ensuing investigation, Woods soon became a person of interest. The apartment manager initially mentioned him to a detective since, among other things, Woods had referred Judy to the complex. In addition, the morning of the incident around 7:30 or 8:00 a.m., the manager saw Woods leave the complex on foot through an opening in a fence, carrying a duffle bag; Woods returned without the bag 60 to 90 minutes later. Later that day, upon learning the apartment manager gave his name to the police, Woods became "pissed, really pissed." He "told [the manager] that snitches get their ass [sic] kicked."

Both the apartment manager and the detective who spoke with Woods that day noticed his face and neck were covered in scratches. Another detective interviewed Woods the following day. He too noticed the scratches on Woods's face. Woods was also wearing an ankle brace and using crutches.

Despite these suspicions, the case went cold. And it stayed that way for nearly 20 years until Detective Michael Medici began reviewing it in 2010. Medici sent fingernail clippings taken from Judy's body in 1992 to a lab for DNA analysis. The results yielded two DNA profiles: one of a major contributor (Judy) and a partial profile of a minor contributor. The minor contributor was an unknown male. After further investigation, Detective Medici obtained a warrant for Woods's DNA, which he executed.

Woods's DNA sample was subsequently compared to the DNA from Judy's fingernail clippings. All the alleles present in the fingernail clipping sample were also present in Woods's DNA profile. "The chances of randomly picking someone who would be included as a potential contributor for those DNA types . . . attributed to the male donor . . . [in] the fingernail clippings"—as Woods was—"[were] 1 in 2.2 trillion African-Americans; 1 in 35 trillion Caucasians; and 1 in 21 trillion Hispanics."

The Trial

In late 2011, a felony complaint was filed charging Woods with Judy's 1992 murder and alleging that he used a dangerous weapon in its commission. (§§ 187, subd. (a), 12202, subd. (b)(1), 1192.7, subd. (c)(23).) After several years of motion practice, the case was brought to trial in 2016.

Among other witnesses, a former girlfriend of Woods testified at trial. She ended their relationship in 1989 because Woods began physically and verbally abusing her. She would ask him to leave her apartment and not return, but Woods would find a way back inside, even after she changed the locks. One particular incident caused her to call the police and seek a restraining order. Woods choked her with two hands until she started to lose consciousness and then hit her head against a doorjamb. Afterwards, Woods "snickered." He remarked on "[h]ow close [she] came to dying" and "[h]ow easy it would be to choke [her]." She also testified that Woods was left-handed and that he threatened to hurt her family if she went to the police.

The jury ultimately convicted Woods of first degree murder (§ 187, subd. (a)) and found true that, in commission of that offense, he personally used a deadly weapon, to wit, a blunt force object (§ 12022, subd. (b)(1)). He is now serving an aggregate prison sentence of 26 years to life.

DISCUSSION

Woods asserts a host of errors in this appeal, all hinging on a single theme—purported governmental misconduct. First, he claims that wrongdoing by the prosecutor initially assigned to try his case mandates dismissal of his charges or, alternatively, reversal of his conviction. Second, he contends that more misconduct was committed by the next prosecutor to step into the case and this error, he reasons, requires reversal either standing alone or when considered cumulatively with the other alleged misdeeds. Finally, he asserts the invalidity of the search warrant used to obtain his DNA sample due to a supposed misrepresentation underlying it. As we will explain, taken singly or together these arguments fail to convince us that reversible error exists on this record.

1. The First Prosecutor's Conduct

a. Additional Background

The trial was initially prosecuted by then-deputy district attorney Laura Ozols. As the People concede, she engaged in conduct unbefitting of her office. The parties, however, debate just how far that misconduct went. Four particular pieces of evidence adduced at trial are relevant to this dispute.

The People represent that according to the California Bar Association records, Ozols is no longer employed by the Riverside County District Attorney's Office.

i. Tippi's knowledge. Ozols elicited that Tippi (Judy's neighbor) saw Woods and Judy together multiple times, including in the two months preceding Judy's death. Defense counsel objected based on a lack of discovery. Outside the jury's presence, Ozols explained that—the morning of Tippi's testimony—she learned Tippi knew Woods and Judy were dating. Although previous discovery revealed Tippi knew Judy was then dating a coworker, no discovery indicated Woods was that coworker. Before Tippi took the stand, Ozols did not convey this fact to defense counsel; nor did she convey the fact that Tippi had seen the two together in the months preceding Judy's death. The court "sustained the objection on a go-forward basis" and asked defense counsel to let him know the following morning if they needed additional time to conduct discovery as a result of the new information. No request from defense counsel for additional time appeared on the next morning's record.

ii. The red gas can. Ozols showed Judy's daughter, then testifying, a photograph of Judy's garage after the accident and asked if anything seemed out of place. The daughter pointed to a red gas can as unfamiliar. On cross-examination, defense counsel asked Judy's daughter when she first saw the photograph of the garage; she said it was sometime earlier that week at the district attorney's office. Defense counsel was not informed of this observation regarding the gas can before the daughter's testimony.

iii. The staged scene. Ozols elicited Detective Mark Boyer's opinion that the binding and duct tape on Judy's body was "staged"—an opinion that had never before been shared with defense counsel. Following this testimony and the trial court's conclusion that it was a discovery violation, the defense was granted a requested one-day continuance pursuant to section 1054.5, subdivision (b). But the court denied the defense's motion for a mistrial reasoning that the continuance "at least for right now, kind of evens up the proverbial playing field."

iv. Eight-to-ten minute escape window. In response to Ozols's questioning, Officer Esquivel testified that after he and Officer Schroeder initially approached Judy's front door, the balcony to her apartment was unwatched for "[m]inimally eight to ten minutes." This period of nonobservation—during which the male perpetrator could have escaped from Judy's apartment unseen—was mentioned by Esquivel during an interview with the prosecution, but not previously disclosed to defense counsel. The trial court concluded this was "a discovery violation, plain and simple." But it again denied a defense motion for a mistrial, opining that any prejudice could be cured with a jury admonition and by "giving the defense additional time in order to formulate what they wish to do with this." The court did not think Ozols's conduct was an "intentional event," but rather was "just somebody not doing what they're supposed to do and maybe not thinking about it." Defense counsel was granted a requested one-day continuance. The court indicated it would have given more time if asked.

In addition to eliciting the above evidence during trial, Ozols misrepresented to the court that she "[had] personally not had any e-mail contact with any witnesses in terms of discussing their testimony or[,] I guess[,] getting witness statements from them in the form of an e-mail." As it happens, her undisclosed communications to certain witnesses included outlines of proposed questions and answers. Ozols provided these outlines to at least seven witnesses and instructed them not to bring those documents to court.

The prosecutor also apparently misrepresented to the court that she took no notes during a particular witness meeting. Woods does not rely on this misrepresentation in his briefing.

For seven as the number of witnesses provided proposed questions and answers, both Woods and the People cite to the list provided in the untimely discovery instruction. That list included Officer Esquivel, Detective Boyer, two other responding officers, a detective who worked on the case in 1992, a criminologist, and a coroner. As we read the record, it appears that Officers Carroll and Schroeder were also sent proposed questions and answers. Woods claims no error in the wording of the untimely discovery instruction.

The motion to dismiss, at issue here, was filed after the majority of Ozols's above-discussed transgressions came to light. The defense argued that Ozols had not only violated her discovery obligations, but "permanently tainted the memories of witnesses" through her improper, undisclosed communications.

As the trial progressed further, the deputy district attorney found more possibly relevant files of Ozols's and turned them over to defense counsel. Upon revelation of these additional e-mails, defense counsel did not immediately renew its motion to dismiss or for a mistrial. At each instance, the trial court offered the defense additional time to cope with the new information, if any. Later, the defense verbally renewed its mistrial motion, alternatively with or without double jeopardy attaching. The court again denied the motion, reasoning that any potential prejudice remained curable by other sanctions.

While the trial court agreed there was "a failure to provide discovery," it found "no real substantive information" supported the claim that Ozols had altered witnesses' memories, aside from one expert witness that the court excluded based on prosecutorial coaching. Rather, "the real nut of this [was] discovery violation after discovery violation after discovery violation." In addition, the court noted that any risk of tainted memories was curable by "vigorously cross-examining each and every one of these witnesses. In fact, the rich tapestry of cross-examination that's available because of the actions of Ms. Ozols has gotten even better for the defense." Moreover, since a new prosecutor took over the case, the court reasoned the misconduct had "stopped."

Ultimately the court denied the motion to dismiss, reasoning that other sanctions would be sufficiently curative. In all, those sanctions included multiple continuances; the exclusion of a particular expert witness; and a lengthy jury admonition. More specifically, the jury was instructed with a modified version of CALCRIM No. 306 (entitled "Untimely Disclosure of Evidence") that (1) the People failed to timely disclose the four sets of evidentiary material discussed above; (2) the prosecution provided "proposed questions and answers" to seven witnesses, each identified by name, and instructed those witnesses "to not bring those documents to court when they testified"; and (3) "[i]n evaluating the weight of significance of that evidence, you may consider the effect, if any, of that late disclosure."

Following a guilty verdict, the court denied Woods's motion for new trial (§ 1181, subd. (5)), rejecting the same arguments he presented in the motion to dismiss. The judge "[was] still of the view that there [was] insufficient reason to believe that the witnesses' memories were altered by Ms. Ozols'[s] conduct, let alone to an extent [incurable] by cross-examination and the Court's order excluding [a particular expert's] testimony." He "believe[d] that cured any prejudice from prosecutorial coaching." The court also cited the fact that it offered the defense continuances following "each and every revelation," and that each witness told not to bring in the "questions and answers" was cross-examined about it. It concluded: "There is no question that Mr. Woods is entitled to a fair trial, but there is no rationale in the law that he receive a perfect trial with no bumps along the way. . . . [T]he Court in this instance is convinced that Mr. Woods absolutely received the fair trial to which he was entitled."

b. How Far Did Ozols's Misconduct Go?

Although at certain points in his briefing Woods disavows challenging the trial court's factual findings as to the extent of Ozols's misconduct, that is precisely what his arguments do. So we first consider whether those factual findings are supported by substantial evidence. (See People v. Uribe (2011) 199 Cal.App.4th 836, 857 (Uribe).)

At the outset, we remark that the trial court was, axiomatically, best positioned to assess the extent of Ozols's misconduct, especially insofar as Woods's contentions impugn the credibility of particular witnesses. (People v. Penunuri (2018) 5 Cal.5th 126, 142 [" ' "it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends" ' "]; cf. People v. Batts (2003) 30 Cal.4th 660, 682-683.) Moreover, we note the truthfulness of the witnesses' testimony in light of Ozols's actions was also largely placed before the jury, given the answers elicited during cross-examination, the late discovery instruction provided, and defense counsel's closing argument. (Penunuri, at p. 142.)

According to Woods, Ozols "conjured" (1) Tippi's testimony about seeing him and Judy together and (2) Judy's daughter's testimony about the red gas can. "With reference to a witness or other evidence, 'conjured up' clearly connotes creation of a witness, as if by magic, and the fabrication of testimony." (People v. Woods (2006) 146 Cal.App.4th 106, 117.) Thus, this is but an accusation of testimonial fabrication by another name.

The record supports the trial court's conclusion that no such fabrication occurred. Ozols discovered these facts through general questions based on prior discovery. Judy's daughter, on cross-examination, explained that during a meeting Ozols showed her the photograph and simply asked if it featured anything unfamiliar. Ozols represented to the court that she uncovered Tippi's knowledge of Judy and Woods's relationship through similarly open-ended questioning based on inferences from Tippi's prior interviews. Of course, the reliability of Ozols's representation to the court is arguably suspect. But it is not without other support. Given that other witnesses living in Tippi's vicinity attested to essentially the same thing—i.e., seeing Woods and Judy together—there is little reason to believe Tippi's testimony on that point was fabricated.

In a similar vein, Woods asserts that Ozols "concocted" testimony with Detective Boyer and Officer Esquivel. But again, the record supports the trial court's conclusion otherwise. As to the staged scene, Detective Boyer testified that it was his own opinion. As to the eight-to-ten minute escape window, Officer Esquivel denied relying on any statements from Ozols in forming his testimony. Rather, he was "basing it on [his] personal recollection and on the recollection of reviewing the reports that [he] wrote." He described his trial preparation with Ozols as "[v]ery normal."

Woods further contends that Ozols "scripted" the testimony of certain witnesses. This factual inference too was rejected by the trial court, and that conclusion finds sufficient support in the record. Of the allegedly scripted witnesses, four in particular were cross-examined about the proposed questions and answers. Redirect examination established that the "proposed answers" came directly from the reports already written by the officers or previous interviews. Further, we observe that the trial court exhibited particular sensitivity to this risk, excluding one expert witness due to potential prosecutorial coaching; it opined that exclusion cured any risk of coaching.

The other witnesses were subject to recall, but the defense never exercised that option.

To be clear, we in no way condone Ozols's actions. We share the trial court's "disdain for the behavior that was exhibited in [its] courtroom." The above-discussed evidence should have been disclosed to the defense. (§ 1054.1.) Yet there is a difference between discovery violations and "conjuring" or "concocting"—i.e., fabricating—testimony. On this record, the trial court properly found that the latter did not occur.

c. Analysis: Motion to Dismiss for Outrageous Governmental Misconduct

Woods asserts error in the denial of his motion to dismiss. Consistent with due process, dismissal may be an appropriate remedy for sufficiently outrageous governmental misconduct that violates a defendant's constitutional rights. (People v. Velasco-Palacios (2015) 235 Cal.App.4th 439, 446 (Velasco-Palacios); People v. Guillen (2014) 227 Cal.App.4th 934, 1006 (Guillen).) Our cases establish that to warrant dismissal, the misconduct must shock the conscience. (See, e.g., Velasco-Palacios, at pp. 448-449 [prosecutor's deliberate insertion of a confession into an interrogation transcript ultimately "severed the trust in defendant's attorney-client relationship, necessitated defendant waiving his attorney-client privilege, and led to the removal of counsel that defendant was comfortable with"]; Morrow v. Superior Court (1994) 30 Cal.App.4th 1252, 1261 ["prosecutor orchestrate[d] an eavesdropping upon a privileged attorney-client communication in the courtroom and acquire[d] confidential information"]; Boulas v. Superior Court (1986) 188 Cal.App.3d 422, 429 (Boulas) ["authorities effectively short-circuited [defendant's] right to be assisted by counsel at a critical stage in the proceedings"]; People v. Moore (1976) 57 Cal.App.3d 437, 442-443 ["district attorney . . . undermined [defendant's] right to counsel, imperiled his life, overreached and lulled him with illusory promises, and caused substantial delays in his trial"]; see also People v. Alexander (2010) 49 Cal.4th 846, 892.)

Dismissal remains "an extraordinary remedy, . . . reserved for the few cases where conduct by the prosecution has completely eliminated the possibility of a fair retrial." (People v. Kassim (1997) 56 Cal.App.4th 1360, 1387.) Simply put, prejudice to the defendant's right to a fair trial is required. (People v. Uribe (2011) 199 Cal.App.4th 836, 861, 873 (Uribe); Velasco-Palacios, supra, 235 Cal.App.4th at pp. 444-445; see also United States v. Morrison (1981) 449 U.S. 361, 365.) For example, in Uribe a prosecutor's "false testimony . . . in a peripheral hearing," while "a grave affront to the judicial system," did not justify dismissal since no prejudice to the defendant's right to a fair trial was shown. (199 Cal.App.4th at p. 841.)

Authority explicating the standard of review on a nonstatutory motion to dismiss is split. A relatively early case from Division Six of the Second Appellate District reviewed the denial of one such motion for an abuse of discretion. (Boulas, supra, 188 Cal.App.3d at p. 435.) Recent cases complicate the question. In Uribe, supra, 199 Cal.App.4th 836, our colleagues in the Sixth Appellate District independently reviewed "the trial court's finding that the governmental conduct was outrageous in violation of defendant's due process rights thereby warranting dismissal." (Id. at p. 858.) Division Three of this district followed suit. (Guillen, supra, 227 Cal.App.4th at pp. 1006-1007.) Conversely, the Fifth Appellate District in Velasco-Palacios, supra, 235 Cal.App.4th 439 "[saw] no need to depart from . . . previous holdings finding the sanction of dismissal to be within the sound discretion of a trial court." (Id. at p. 445; see also Boulas, at p. 435.)

We agree with Velasco-Palacios and think the abuse of discretion standard is more appropriate here. This is a situation in which the challenged conduct unfolds before the trial judge, who is required to assess the extent to which the governmental misconduct affected the proceedings. That judge is uniquely situated to determine the extent of prejudice to the defendant's right to a fair trial. As our Supreme Court stated, albeit in a somewhat different context, "[I]t is the trial court that has a 'first-person vantage' [citation] on the effect of trial errors or irregularities on the fairness of the proceedings in that court. . . . [¶] A trial court's finding of prejudice is based, to a significant extent, on ' "first-hand observations made in open court," ' which that court itself is best positioned to interpret." (People v. Ault (2004) 33 Cal.4th 1250, 1267.)

Of course, "an exercise of discretion is only sound if it is reasonable under the applicable law and relevant facts." (Velasco-Palacios, supra, 235 Cal.App.4th at p. 446.) Our deference is thus not "unfettered" nor is our review " ' "empty." ' " (Ibid.)

As we have explained, aside from Ozols's misrepresentation to the court that she had no undisclosed contact with witnesses, the misconduct here amounted largely to violations of state law discovery requirements. (See § 1054 et seq.) In search of a constitutional hook justifying dismissal (see Velasco-Palacios, supra, 235 Cal.App.4th at p. 446; see also § 1054.5, subd. (c)), Woods argues that Ozols's conduct prejudiced his Fifth, Sixth, and Fourteenth Amendment rights to, respectively, due process, counsel, and a fair trial. He similarly invokes article I, section 15, of the California Constitution. Yet following our conclusion that the trial court's findings as to the extent of Ozols's misconduct were supported by substantial evidence, little remains of Woods's arguments regarding prejudice. Nonetheless, given that misconduct of some kind occurred, we consider whether "the People . . . prove[d], by a preponderance of the evidence, that sanctions are not warranted because the defendant was not prejudiced by the misconduct." (People v. Zapien (1993) 4 Cal.4th 929, 967.)

Woods argues his case was further "tainted by law enforcement action" in light of purported misrepresentations made to obtain a search warrant for his DNA. As we discuss in Section 3, post, Woods's challenge to the search warrant fails. Given our conclusion that the warrant was proper, it adds nothing to our discussion regarding his motion to dismiss for outrageous governmental conduct.

" '[T]he only substantive discovery mandated by the United States Constitution' is the disclosure of 'material exculpatory evidence' under Brady v. Maryland (1963) 373 U.S. 83." (People v. Ashraf (2007) 151 Cal.App.4th 1205, 1211; accord, People v. Superior Court (Meraz) (2008) 163 Cal.App.4th 28, 49.) Notably, by statute, dismissal is not a permissible sanction for violations of our state law discovery requirements "unless required . . . by the Constitution of the United States." (§ 1054.5, subd. (c).) That subdivision has been said to "preserve[ ] judicial power to dismiss charges for a Brady violation." (People v. Gutierrez (2013) 214 Cal.App.4th 343, 352.) Although Woods makes no mention of it, we observe that the trial court concluded the proposed questions and answers qualified as Brady materials; that was the basis for referring to them in the untimely discovery instruction. As Woods's briefing neither invokes nor relies whatsoever on Brady, we discuss this point no further. (See People v. Mora and Rangel (2018) 5 Cal.5th 442, 467 (Mora) ["Evidence actually presented at trial is not considered suppressed for Brady purposes, even if that evidence had not been previously disclosed during discovery"].)

Especially in light of the multitude of other curative measures made available to the defense, we agree with the People that insufficient prejudice inures to warrant the extraordinary sanction of dismissal. (Cf. United States v. Nikrasch (9th Cir. 2001) 25 Fed.Appx. 570, 575 [defendant's "claim that the government withheld potentially exculpatory evidence does not amount to the type of conduct that violates 'the universal sense of justice,' " sufficient to justify a due process based dismissal]; cf. also Mora, supra, 5 Cal.5th at p. 469 [defendants' bare argument that "they were 'simply unable mid-trial to make the effective use of the untimely disclosed evidence' " was insufficient to demonstrate prejudice]; People v. Verdugo (2010) 50 Cal.4th 263, 281-282 [generalized statements including that " '[t]imely disclosure of the information would have enabled counsel to adjust his theory of the case to fit the facts' " were insufficient to demonstrate prejudice].) Here, the defense was offered and received multiple continuances; had the ability to recall and—in many instances—heavily cross-examine these witnesses; and was granted an instruction highlighting the discovery violations. Additionally, the court barred one of the prosecution's expert witnesses from testifying. These devices ameliorated much of the prejudice that might otherwise have inured to Woods.

Woods contends that this exclusion "had no obvious benefit to the defense since that witness was replaced by another testifying to the same autopsy report-based facts." As the People rightly posit, however, "the obvious benefit was a witness not tainted by the prosecutor's coaching as to the timing and sequence of injuries."

Moreover, we observe that at least in certain respects, Ozols's conduct may have assisted Woods's defense. Indeed, as the trial court so aptly put it, Ozols's actions lent to "a rich tapestry of cross-examination . . . for the defense." (See United States v. Sayakhom (9th Cir. 1999) 186 F.3d 928, 945 ["Cross-examination and argument are the primary tools for addressing improper witness coaching"].) Woods's appellate briefing to an extent recognizes this benefit. Yet he contends his "developing 'cheating prosecutor' defense" was also "undermined" "[t]hrough no fault of [his] own" since Ozols was removed as the prosecutor midway through trial. But there is an undeniable incongruity in arguing, on one hand, that Ozols's actions undercut his counsel's effectiveness and the fairness of his trial and, on the other, that her removal prejudiced Woods further since her improper behavior ceased.

Furthermore, the record reflects that his counsel indeed continued to take advantage of the " 'cheating prosecutor' defense" through vigorous cross-examinations and, most pertinently, the late discovery instruction provided. In closing, defense counsel relied on that instruction to argue the "case was infected with bias, and that bias is demonstrated by how the duties to turn over evidence, to turn over helpful evidence, were shirked, were ignored, were violated."

Finally, Woods urges "[d]ismissal is an appropriate remedy in this case to deter future government misconduct." True, past jurisprudence has paid tribute to the possibility for such deterrence. (Velasco-Palacios, supra, 235 Cal.App.4th at p. 451; Boulas, supra, 188 Cal.App.3d at p. 435.) But none found the potency of deterrence dispositive. Each required prejudice—an aspect not sufficiently present here. (Velasco-Palacios, at p. 451; Boulas, at p. 435.) As the high court opined, "[A]bsent demonstrable prejudice, or substantial threat thereof, dismissal of the indictment is plainly inappropriate, even though the violation may have been deliberate." (United States v. Morrison, supra, 449 U.S. at p. 365.)

In sum, we remain unconvinced that this is one of "the few cases where conduct by the prosecution has completely eliminated the possibility of a fair [ ]trial." (People v. Kassim, supra, 56 Cal.App.4th at p. 1387.) Accordingly, we find no abuse of discretion in the trial court's refusal to award the "extraordinary" sanction of dismissal. (Ibid.)

d. Analysis: Prosecutorial Misconduct

On the particular facts of this case, Woods's contention that Ozols committed prosecutorial misconduct overlaps many of the issues involved in his claim of outrageous governmental misconduct. " 'A prosecutor's conduct violates the Fourteenth Amendment to the federal Constitution when it infects the trial with such unfairness as to make the conviction a denial of due process. Conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it involves the use of deceptive or reprehensible methods to attempt to persuade either the trial court or the jury.' " (People v. Gonzales (2011) 52 Cal.4th 254, 305.)

Woods argues that Ozols's actions, as "a pattern of deceptive methods," violated the federal constitution, relying heavily on People v. Hill (1998) 17 Cal.4th 800 (Hill). Again, Woods's argument turns largely on rejecting the trial court's factual finding—i.e., accepting his premise that "the [trial] court insisted on seeing only discovery violations and not the pattern of deception infecting the trial past the point due process can tolerate." We reject his argument for the same reasons discussed above.

Further, as the People point out, Hill is actually most helpful by way of contrast to this case, not as an analog for it. That case featured "a constant barrage of . . . unethical conduct, including misstating the evidence, sarcastic and critical comments demeaning defense counsel, and propounding outright falsehoods. With a few exceptions, all of [the] misconduct occurred in front of the jury." (Hill, supra, 17 Cal.4th at p. 821.) "Given . . . the onslaught of the misconduct that occurred in [Hill], it became increasingly difficult for the jury to remain impartial. 'It has been truly said: "You can't unring a bell." ' [Citation.] [In Hill,] the jury heard not just a bell, but a constant clang of erroneous law and fact." (Id. at pp. 845-846.) That did not happen here. The People's proffered distinction that "[a]ny error here was outside the presence of the jury and did not change the law or evidence presented to the jury" is well taken. We add that what was in front of the jury regarding the misconduct, as we have explained at length, actually may have assisted Woods's case. 2. Griffin Claim

a. Additional Background

Woods did not take the stand during trial. The jury was accordingly instructed not to take into account his decision not to testify.

In closing argument, the prosecutor (Ozols's replacement) remarked on Woods's injuries seen the day after Judy's death. She explained,

"No bodies found. No dead bodies found in the burnt fire. Where and how and exactly when he got away, we're not sure. We asked the right questions, put up the right people, to try to get an answer, and I think the issue is the leg injury, right? Did he jump from that balcony? Because we know there's evidence that the following day, he has a leg injury.
"He may have jumped from the balcony and that's how he got away, but the point is, he has a leg injury. He could have gotten the leg injury when he fought and did what he did to [Judy]. No one is saying that's exactly been proven.
"The point that he had a leg injury and scratches on his face the day after his former girlfriend or person he was dating was found -- or I

should say, the scratches were noticed that same day is relevant. The leg injury was noticed the next day. That's relevant.
"The fact that there was no explanation provided on how those injuries were maintained or obtained by him, absolutely relevant."

Here, defense counsel objected, citing Griffin v. California (1965) 380 U.S. 609 (Griffin). The court overruled the objection, but reminded the jury that "nothing that the attorneys say is evidence."

Outside of the presence of the jury, defense counsel moved for a mistrial based on the prosecutor's characterization of Woods's injuries as unexplained. The court denied the motion, but once more admonished the jury that the attorneys' statements were not evidence. The court again rejected Woods's claim of Griffin error when denying his postverdict motion for a new trial.

b. Analysis

"The Fifth Amendment of the federal Constitution provides that '[n]o person . . . shall be compelled in any criminal case to be a witness against himself.' (U.S. Const., 5th Amend.) That provision 'forbids either comment by the prosecution on the accused's silence or instructions by the court that such silence is evidence of guilt.' " (People v. Daveggio and Michaud (2018) 4 Cal.5th 790, 852; accord, Griffin, supra, 380 U.S. at p. 615.)

"[A] prosecutor may commit Griffin error if he or she argues to the jury that certain testimony or evidence is uncontradicted, if such contradiction or denial could be provided only by the defendant, who therefore would be required to take the witness stand." (People v. Bradford (1997) 15 Cal.4th 1229, 1339 (Bradford); accord, People v. Thomas (2012) 54 Cal.4th 908, 945.) Griffin "does not, however, extend to bar prosecution comments based upon the state of the evidence or upon the failure of the defense to introduce material evidence or to call anticipated witnesses." (Bradford, at p. 1339.) "Griffin['s] . . . protection of the right to remain silent is a 'shield,' not a 'sword' that can be used to 'cut off the prosecution's "fair response" to the evidence or argument of the defendant.' " (People v. Lewis (2004) 117 Cal.App.4th 246, 257.)

In Woods's view, the prosecutor committed Griffin error by deeming it "absolutely relevant" that "there was no explanation provided" for his injuries seen after Judy's death. The trial court rejected this claim of prosecutorial misconduct not once but three times—first in overruling the objection, next in denying an ensuing mistrial motion, and third in denying Woods's motion for a new trial.

"We review the trial court's rulings on prosecutorial misconduct for abuse of discretion." (People v. Peoples (2016) 62 Cal.4th 718, 792-793; see also People v. Verdugo, supra, 50 Cal.4th at p. 308 [" '[T]he trial court has broad discretion in ruling on a new trial motion . . . ,' and its 'ruling will be disturbed only for clear abuse of that discretion' "].) "When the issue," as here, " 'focuses on comments made by the prosecutor before the jury, the question is whether there is a reasonable likelihood that the jury construed or applied any of the complained-of remarks in an objectionable fashion.' " (People v. Cole (2004) 33 Cal.4th 1158, 1202-1203.)

The challenged comment at issue cannot fairly be interpreted as referring to Woods's silence. Rather, it was a comment on "the failure of the defense to introduce material evidence or to call anticipated witnesses." (Bradford, supra, 15 Cal.4th at p. 1339.) As the People persuasively point out, "there were witnesses other than [Woods] who could have logically explained the cause of the injuries." For example, in 1992 Woods's then-girlfriend purportedly took responsibility for the scratches on his face, though she later recanted. At the time, Woods also apparently told the police that he hurt his leg at work; presumably, a coworker could have attested to that fact, if true. Or as a perhaps more creative solution, he could have tried to introduce evidence of a related workers' compensation claim. Put simply, this is not a case where the "contradiction or denial could be provided only by the defendant." (Bradford, at p. 1339.)

We recognize Woods was precluded from introducing his own out-of-court statements indicating that his injuries occurred at work. But that does not impact our analysis, as we refer to his earlier explanation only to point out that, assuming its truth, other witnesses likely could have covered the same ground.

Nevertheless, Woods contends that the semantics of the prosecutor's comment specifically called out his failure to testify: He argues that "[t]he use of the words 'obtained by him' direct[ed] the listener's chain of reasoning to 'him' to provide the relevant explanation." But we are hard-pressed to see how the prosecutor could refer to Woods's injuries without somehow referring to Woods. This was not Griffin error.

Because no Griffin error occurred and the other prosecutorial misconduct resulted in insufficient prejudice, we reject Woods's claim of cumulative prosecutorial error.

3. Challenge to DNA Search Warrant

a. Additional Background

Around late 2010 when Detective Medici learned a partial male DNA profile was found in Judy's fingernail clippings, he set about obtaining a secondary reference sample of Woods's DNA (i.e., a sample taken indirectly from an individual by swabbing something he or she came into contact with). To do so, he swabbed a shopping cart Woods used. The shopping cart swabs were assessed by forensic analyst Donald Jones. Medici subsequently relied on Jones's analysis, among other things, to obtain a search warrant for a buccal swab DNA sample from Woods.

Before trial, Woods moved to traverse the search warrant and suppress the evidence seized under it, contending that Medici misrepresented the results from the analysis of the shopping cart swab in his supporting affidavit. The trial court tentatively denied the motion; its ruling was to become final if defense counsel chose not to revisit the issue. Defense counsel raised the motion again before trial and called both Medici and Jones to the stand. Following that testimony, the court denied the motion.

b. Analysis

A search warrant may only be issued upon a showing of probable cause. (U.S. Const., 4th Amend.; Franks v. Delaware (1978) 438 U.S. 154, 164 (Franks).) The probable cause requirement is a "flexible" standard, satisfied where "there is a fair probability that contraband or evidence of a crime will be found in a particular place." (Illinois v. Gates (1983) 462 U.S. 213, 238-239.)

"Under [Franks, supra, 438 U.S. 154], a defendant has a limited right to challenge the veracity of statements contained in an affidavit of probable cause made in support of the issuance of a search warrant." (People v. Panah (2005) 35 Cal.4th 395, 456.) "When presented with such a challenge, the lower courts must conduct an evidentiary hearing if a defendant makes a substantial showing that: (1) the affidavit contains statements that are deliberately false or were made in reckless disregard of the truth and (2) the affidavit's remaining contents, after the false statements are excised, are insufficient to justify a finding of probable cause. At the evidentiary hearing, if the statements are proved by a preponderance of the evidence to be false or reckless, they must be considered excised. If the remaining contents of the affidavit are insufficient to establish probable cause, the warrant must be voided and any evidence seized pursuant to that warrant must be suppressed." (Bradford, supra, 15 Cal.4th at p. 1297, citing Franks, at pp. 155-156.) "We review denial of a Franks hearing de novo." (Panah, at p. 457.)

Woods asserts the court erred in denying his motion challenging the search warrant. His claim fails to persuade, however, because even assuming the discussion of the shopping cart swab should be excised from Medici's affidavit, sufficient probable cause remains.

We note that Woods's briefing overlooks an aspect of the Franks procedure. He makes no mention of seeking a hearing under Franks, but instead contends if the preliminary showing is made "then the conviction should be reversed and the case sent back to trial court with the evidence suppressed." Conversely, the People's briefing assumes Woods is challenging the denial of a Franks hearing. Notably, the court allowed Woods to call witnesses regarding the veracity of the statements. The People do not argue that this qualified as an evidentiary hearing under Franks. In any event, because we conclude that probable cause exists even following excision of the objected-to statements, we consider this procedural issue no further. --------

Detective Medici's affidavit detailed law enforcement's response on that 1992 morning based on the relevant police reports. His discussion largely tracked—at length—the evidence adduced at trial, which we already summarized above. Beyond that information, Medici also included that Woods made certain misrepresentations to the police, namely, that he was never romantically involved with Judy and had never been inside her apartment.

Similarly, the affidavit detailed the confutation of Woods's initial explanation for his injuries following Judy's death. One of his supervisors at work discredited Woods's story that his ankle was sprained there. That supervisor also confirmed the bindings found on Judy's wrists were the same type of zip ties they used at the workplace. As to the scratches on his face, the affidavit explained that Woods's then-girlfriend initially claimed responsibility for them but recanted when contacted by Medici in 2010. The former girlfriend also said that when she and Woods went to bed the night before Judy's murder, Woods had no ankle injury. When she awoke the next day, Woods was in the bathroom " '[c]leaning up' " and had a limp—which he told her was from jumping over a wall in the apartment complex.

Per Detective Medici's affidavit, that girlfriend also said her relationship with Woods was "extremely violent" and "[o]n several occasions Woods choked [her] with both hands until she nearly went unconscious." Another former romantic interest of Woods (the one who ultimately testified at trial) recounted similar abuse to Detective Medici: "She described Woods putting his two hands around her throat and choking her in fits of rage and anger."

Medici also reported that a partial male profile was found in Judy's fingernail scrapings. While the profile was "not significant enough to submit through the CODIS [Combined DNA Index System] database for unknown suspects," it could be compared with "a known subject and reference sample," if provided.

The information summarized above satisfies the "flexible" probable cause standard. (See Illinois v. Gates, supra, 462 U.S. at pp. 238-239.) In arguing that the information was insufficient, Woods focuses on the comments from prior girlfriends to the exclusion of the other (numerous) facts included. Particularly when using a totality of the circumstances test, those facts—to put it plainly—matter.

Similarly unavailing are the inferences Woods attempts to draw from Medici's investigatory approach. He claims that if the evidence in the warrant was enough without information from the shopping cart swab, "Medici would not have felt compelled to go to significant effort try[ing] to get a DNA sample for comparison." In other words, why go to the effort of swabbing the shopping cart if you could already get a warrant for a DNA sample? On that logic, however, excision would never save a warrant containing objectionable information. He also asserts that Medici left the "bombshell evidence" for the end, as the portion he objects to is in the final factual paragraph of the declaration. Yet an innocuous explanation is simply that Medici wrote the facts in his affidavit in chronological order, ending with the shopping cart sample because that was uncovered after everything else.

In sum, any error in Medici's affidavit with respect to his description of Jones's analysis of the shopping cart swab does not affect the ultimate conclusion that there was probable cause to issue the search warrant.

DISPOSITION

The judgment is affirmed.

DATO, J. WE CONCUR: NARES, Acting P. J. GUERRERO, J.