PEOPLE v. CLEOPHUS PRINCE, JR

Filed 4/30/07

IN THE SUPREME COURT OF CALIFORNIA

THE PEOPLE, )

)

Plaintiff and Respondent, )

) S036105

v. )

)

CLEOPHUS PRINCE, JR., )

) San Diego County

Defendant and Appellant. ) Super. Ct. No. CR130018

__________________________________ )

Story continued from Part VI .

The prosecution objected that the offer of proof was inadequate under the standard established in Hall, supra, 41 Cal.3d 826. Specifically, there had been nothing linking the Balboa Avenue Family Fitness Center to the crimes, and defendant also had failed to provide any evidence concerning the location of Fioritos residence. The court excluded the evidence, commenting that it had admitted the Dhillon testimony over the prosecutions objection because it described an event bearing many common marks with the charged crimes, in that it took place at the same time of day and in the same location as some of the charged murders, the same type of victim was targeted, and the same method of entry into a home was attempted. By contrast, the court found no suggestion in the evidence that a young African-American man had displayed interest in a woman at a location and time different from those involved in the charged offenses so as to link that event to the present case.

Contrary to defendants position, there was nothing in the proposed Faie Fiorito testimony that would link the person she had seen watching her to the charged crimes. The proposed testimony would not have provided direct or circumstantial evidence linking the third person to the actual perpetration of the crime. (Hall, supra, 41 Cal.3d at p. 833.) Defendants attempt to equate the Fiorito testimony with the testimony of Cotalessa-Ritchie is unavailing. As explained, the latter testimony described an event that occurred close in time and place to two of the charged murders and that shared significant common marks with the charged crimes.

Defendant contends the evidence in question was admissible on an additional ground  to rebut the prosecutions evidence linking defendant to the Miramar Road Family Fitness Center. Defendants offer of proof did not pertain to any purported impeachment value of the evidence, however, nor did the trial court rule upon any such claim. Accordingly, this claim is forfeited. (Evid. Code,  353; People v. Partida, supra, 37 Cal.4th 428 at pp. 434-435 [stating the general rule in the context of an Evidence Code section 352 objection, but permitting the defendant to make a narrow due process argument on appeal based upon such a statutory objection at trial].) Nor do we believe this evidence would have had any value for impeachment purposes.

Defendant complains that it was a violation of basic principles of fairness to admit testimony by Cotalessa-Ritchie but to exclude Fioritos testimony, and that the courts error in this regard violated various of his constitutional rights.^[1] Even if this claim was not forfeited, it is not persuasive. Cotalessa-Ritchie identified defendant and described behavior occurring in the same location, at the same time of day, in the same general period, and of a nature similar to the conduct of the person who murdered Tarr and Weinhold. The circumstance that Fiorito observed a person do something different at a location different from any involved in the present crime and at a different time of day, and that this person was not defendant, is not much more probative than recounting the activities of any young man of the same racial background as defendant who exhibited interest in a young White woman in San Diego at any time of day during the period in which the murders were being committed. The only other point of similarity is that Fiorito described an incident that occurred at a Family Fitness Center but, as noted, it was a facility different from any connected to any of the crimes underlying the present case.

13. Prosecutorial misconduct

Defendant contends the prosecutor committed misconduct in his opening statement to the jury by assertedly exaggerating the probative value of a DNA analysis comparing the semen found at the scene of the Weinhold murder with a sample of defendants blood. Defendant asserts the prosecutor committed further, similar misconduct in examining the experts he called to explain the evidence and in relying upon this evidence in his closing argument to the jury. Defendant argues the prosecutor improperly attributed more weight to the evidence than it deserved, by characterizing the scientific analysis that had been employed as conservative. He claims that, at the hearing the court conducted pursuant to People v. Kelly (1976) 17 Cal.3d 24 to assess the admissibility of new scientific evidence, the prosecutor failed to establish there was general agreement in the scientific community that the analysis used was, in fact, conservative.^[2]

In his opening statement to the jury, the prosecutor stated that the Peoples DNA experts would inform the jury that using the most conservative methods, that the odds of any person picked off the street matching this banding pattern that Cleophus Prince shares with the person that left semen, sperm at the scene [of Weinholds murder], is 1 out of 124,000.

Prosecution witness Dr. Lisa Forman explained the basis for her evaluation of the probability of a match between defendants blood sample and the sperm sample found at the scene. She described her calculations and her estimate of the probability of a match. The prosecutor inquired, what number did you come up with? Dr. Forman replied: using the most conservative model, the model that shows the frequency to be as common as it could be in any population, the likelihood that a random person would share those sets of band . . . is approximately one in 120,000. Later the prosecutor asked the witness whether the number she had calculated was an exceedingly conservative number? and she replied that it was. When Dr. Glenn Evans testified, the prosecutor asked whether Dr. Formans modified ceiling method of calculating the probability of a match was an extraordinarily conservative estimate? Dr. Evans replied that it was in fact much more conservative than many scientists would like to see. But it is the most conservative estimate one can make. It gives every possible benefit of the doubt.

In closing argument to the jury, the prosecutor made use of the DNA evidence. He reminded the jury that Dr. Forman testified that she applied the most conservative estimate of probabilities, the ones that would give Mr. Prince the benefit of the doubt using scientific principles, even those most conservative numbers said that it would be one-out-of 120,000 chance of a random match. The prosecutor added that Dr. Evans had confirmed this characterization of the evidence three or four times. He goes, every benefit is given. This is a conservative number. Every benefit of the doubt is given  he repeated that  every step of the way.

Defendant contends the references to conservative methods in reaching the probability estimate, both in the prosecution witnesses testimony and during the prosecutors own statements, constituted misconduct because they invited the jury to speculate that a higher probability of a match actually existed. He suggests that the testimony and argument constituted an effort to place before the jury evidence that the court had deemed inadmissible at the Kelly hearing.

Defendants claim of prosecutorial misconduct is unpersuasive. First, defendant forfeited this claim because he did not object upon that basis, either during testimony or during the prosecutors argument, and there is no indication an objection would have been futile or that an admonition would not have cured any harm. (See People v. Welch, supra, 20 Cal.4th at p. 753.) Nor did he raise such an evidentiary objection to the testimony of the experts. Further, the prosecution presented ample evidence at the Kelly hearing that the modified product rule was a conservative analytic method created in order to produce a less incriminating result than would be produced by the unmodified product rule. (See fn. 24, ante.) Nor did the prosecutor commit misconduct simply by commenting upon admissible evidence. Defendants reference to the constitutional right to due process of law and a reliable factfinding proceeding add nothing to his claim.

14. Closing the proceedings

A criminal defendant has a right to a public trial that is guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution and by article 1, section 15 of the California Constitution. (Waller v. Georgia (1984) 467 U.S. 39, 46; People v. Woodward (1992) 4 Cal.4th 376, 382.) Violation of this right requires reversal of the judgment without examination of possible prejudice. (People v. Woodward, supra, 4 Cal.4th at pp. 383-384.) Defendant contends the court violated his right to a public trial by closing the courtroom during the brief portion of FBI Special Agent Ankroms testimony that described a crime scene in a murder committed subsequent to defendants arrest that remained under investigation.

After considerable litigation, the trial court refused to quash a subpoena directed to records of the San Diego County Sheriffs Department concerning the circumstances of a murder committed subsequent to defendants arrest. The records at issue consisted of an autopsy report and a package of photographs taken at the autopsy. Counsel were prohibited from copying the information and from publishing or distributing the evidence or the results of their investigation regarding that matter. The court explained that because the prosecution in the present proceedings was relying in part upon evidence indicating that the charged murders were signature crimes involving a single perpetrator, the defense was entitled to explore the circumstances of another murder committed subsequent to defendants arrest which, the courts in camera review disclosed, bore certain common marks with the charged crime. The court acknowledged the sheriffs claim that disclosure could impair an ongoing investigation, but concluded that on balance the defendants interest in a fair trial required disclosure. The court did not rule on the question whether defendant could examine witnesses on the subject of the unsolved crime. The sheriff sought appellate review, but the Court of Appeal denied the petition for writ of mandate as premature, noting that the trial court had not yet determined whether the evidence was admissible and had otherwise demonstrated awareness of the sheriffs concerns. The Court of Appeal presume[d] the court will take appropriate precautions should it become necessary to admit the material.

At trial, defense counsel sought permission to use the materials to cross-examine the coroner, Dr. Blackbourne. The court granted permission, limiting questioning to the facts of the autopsy. The name of the victim, the location and precise time of the crime, and evidence discovered at the crime scene were not to be mentioned. Defense counsel questioned the coroner briefly as to the nature of the stab wounds in the unsolved case, and the prosecution questioned the witnesses concerning the dissimilarities between the unsolved crime and the murders charged in the present case.

The issue in question arose again in the context of FBI Special Agent Ankroms testimony. As described above, Ankrom testified that a number of similarities among the six charged murders justified the conclusion that a single person had committed all the crimes. He referred to the position of the bodies, the number and placement of the wounds, and certain other circumstances. Defendant sought permission to examine Ankrom concerning the circumstances of the other murder that occurred while defendant was in custody, claiming it bore significant similarities to the charged crime and that the evidence supported the inference that the perpetrator of the unsolved crime  who could not have been defendant  might be responsible for the murders charged against defendant. The prosecutor also requested the courts permission to examine Ankrom concerning details of the crime scene in the unsolved case. He pointed out Dr. Blackbourne already had testified concerning this unsolved crime, and that he needed to examine Ankrom to establish that there were important distinctions between the method of killing in the other crime and the charged murders.

The court permitted examination of Ankrom under the same limitations as those applied to Dr. Blackbourne. Defendant elicited testimony that the unsolved murder bore certain similarities to the charged murders, in that it involved a White woman murdered in her residence who suffered more than 20 stab wounds and was discovered in a state of partial undress. The prosecution elicited testimony that Ankrom believed the unsolved murder was not committed by the person who committed the charged murders.

During the prosecutors questioning, Ankrom volunteered some details concerning the unsolved crime, but the court intervened. A hearing followed on the question whether the details of the unsolved crime could be the subject of further examination. Because of the confidential nature of the information, the court suggested it might be required to close the proceedings to the public.

Counsel for the San Diego County Sheriff objected to any examination that would touch on details of the unsolved crime, particularly the crime scene. The objections were based on the theory that public dissemination of such information would compromise an ongoing investigation into the unsolved crime. After conducting extensive hearings, the trial court concluded that defendants constitutional right to present a defense and confront his accusers required that the questioning be permitted to go forward, but agreed with counsel for the sheriff that the public would be excluded if either counsel examined Ankrom concerning the crime scene facts underlying the unsolved murder, including certain facts that were unknown to the public, such as the nature of the fatal injuries involved in the other crime. Both defendant and the prosecutor objected.

The trial court acknowledged the right to a public trial, but noted that the right may be curtailed as necessary to serve some higher value, including, in the courts view, insuring the integrity of an ongoing murder investigation. The court explained that the sheriff feared that the disclosure of crime scene observations and photographs of the victim would prevent the sheriff from effectively interviewing potential subjects or targets of the investigation, would create problems from the standpoint of a confession, if confessions are made. The court acknowledged that a trial must be open absent a compelling contrary interest, but concluded after reviewing various options that the potential for interference with the apprehension of the murderer constituted such an interest. I do find that revealing this detailed information concerning the crime scene, photographs of the victim live or this autopsy would clearly affect the likelihood of the sheriffs successful investigation of this crime, I think closure is the appropriate method of dealing with this issue. [] . . . Ill give this notice to all counsel at this point. Any examination of the witness which does not deal with the details of the crime scene should and must be done in open court as a part of the public process. [] I will order the proceedings closed if and only if the examination deals specifically with crime scene facts, description of the crime scene in this unsolved case, photographs of the autopsy of the victim in the unsolved case showing the nature of the wounds or live photographs of the victim. [] Any other matter other than that information, that could prevent the sheriff from successfully apprehending the perpetrator in this unsolved case will be done in open court. The court explained that it was referring to very specific information that could only be known to the killer . . . because I want to keep that information out of the public record because that is precisely the type of information that will prevent the sheriff from apprehending the killer who is at large at this point.

Thereafter, when the prosecution and the defense questioned Ankrom concerning the evidence disclosed at the crime scene in the unsolved murder, the courtroom was closed to spectators. The questions during the closed sessions related solely to crime scene evidence and autopsy photographs, as directed by the court. Those portions of the closing arguments that touched upon the sensitive crime scene evidence also occurred in closed session.

The United States Supreme Court has made clear that the right to an open trial may give way in certain cases to other rights or interests, such as the defendants right to a fair trial or the governments interest in inhibiting disclosure of sensitive information. Such circumstances will be rare, however, and the balance of interests must be struck with special care. We stated the applicable rules in Press-Enterprise: [] The presumption of openness may be overcome only by an overriding interest based on findings that closure is essential to preserve higher values and is narrowly tailored to serve that interest. The interest is to be articulated along with findings specific enough that a reviewing court can determine whether the closure order was properly entered.  (Waller v. Georgia, supra, 467 U.S. at p. 45; see also NBC Subsidiary (KNBC-TV) Inc. v. Superior Court (1999) 20 Cal.4th 1178, 1181.)

Similarly this court has explained that a public trial ordinarily is one open to the general public at all times. [Citations.] The Sixth Amendment public trial guarantee creates a presumption of openness that can be rebutted only by a showing that exclusion of the public was necessary to protect some higher value, such as the defendants right to a fair trial, or the governments interest in preserving the confidentiality of the proceedings. [Citation] When such a higher value is advanced, the trial court must balance the competing interests and allow a form of exclusion no broader than needed to protect those interests. [Citation.] Specific written findings are required to enable a reviewing court to determine the propriety of the exclusion. [Citations.] (People v. Woodward, supra, 4 Cal.4th at p. 383, relying primarily on Waller v. Georgia, supra, 467 U.S. 39]. )

In the present case, the trial court reasonably concluded that the governmental and public interest in apprehending a dangerous criminal justified a very minor infringement upon defendants right to a public trial  but only during a limited portion of examination of a single witness and a brief segment of the argument to the jury. The trial court balanced defendants right to present a defense and his right to a public trial with the governments interest in inhibiting disclosure of sensitive information. (Waller v. Georgia, supra, 467 U.S. at pp. 45, 48.) Although [s]uch circumstances will be rare and the balance of interests must be struck with special care (id. at p. 45), we believe that the trial court in the present case identified an overriding state interest in keeping secret certain limited details concerning an unsolved crime. These details concerned evidence that would be known only to the perpetrator  details that clearly should be kept confidential for use in questioning witnesses. The closure affected only a small portion of a single witnesss testimony and of the parties argument to the jury on that portion of the evidence  the public was not excluded from a substantial portion of the trial or pretrial hearings. (See People v. Woodward, supra, 4 Cal.4th at p. 384.)^[3]

In the present case, an ample record demonstrates that the trial courts concern for the ongoing investigation of the unsolved crime justified the very limited closure of the courtroom that occurred. The court carefully weighed the competing interests involved and the options available to it, keeping the closure to the minimum necessary to serve the states interest. As contemplated by the high court in the Waller decision, these brief closures did not infringe upon defendants right to a public trial.

15. Cumulative prejudice

Defendant contends cumulative prejudice requires reversal of the guilt verdict, noting that the jury deliberated for portions of 10 days. He alleges he was deprived of a fair trial and reliable guilt determination in violation of state and federal constitutional principles.

We have not identified any significant errors at the guilt phase, nor do we believe there was cumulative prejudice.

Defendant claims that the charges were inflammatory and that the jury probably placed the burden of proof upon him, and that the circumstance that the jury convicted him of every charge, even those as to which he believes there was insufficient evidence, indicates the jury did not deliberate carefully. Defendant contends that even if the trial court did not err in refusing to grant the motion for change of venue, the effect of the intense pretrial publicity and the admission of signature-crime evidence undermined the fairness of the trial to his prejudice. He urges that the evidence was insufficient in many respects and that even if we find otherwise, it was extremely weak.

In essence, defendant asks us to reevaluate the evidence, claiming that assuming it was sufficient, the evidence was close and the eyewitness identifications were weak when factors discussed by his identification expert are considered. He contends his possession of jewelry belonging to the victims was not conclusive evidence that he was involved in stealing the jewelry. But all of this evidence was for the jury to consider; it is not our function to reevaluate the evidence to conclude whether the jury should have reached a different result on the theory that the evidence was close. (See People v. Manriquez (2005) 37 Cal.4th 547, 578.) Nor do we agree that serious prosecutorial misconduct undermined the identification of defendant as the perpetrator, arising from the circumstance that the witnesses and the prosecutor commented, without objection, on the presence of defense counsel at the lineup.

We have not found error as to any of these claims, and we are not persuaded by defendants suggestion that a number of issues he regards as close should require reversal on the ground of cumulative prejudice.

B. Claims affecting the penalty phase of the trial

1.Motion for a separate penalty phase jury

After the guilty verdicts had been entered, defendant moved for a new penalty phase jury, citing the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution. After hearing argument, the court denied the motion.

Contrary to defendants claim on appeal, he was not entitled to a separate jury for the penalty phase of the trial. Section 190.4, subdivision (c) requires that, absent good cause, the same jury decide guilt and penalty at a capital trial. (People v. Earp (1999) 20 Cal.4th 826, 890.) The statute expresses a long-standing preference for a single jury to decide guilt and penalty (ibid.), and we have rejected claims that this preference in itself constitutes a denial of due process of law or violates the defendants right to a fair trial and reliable guilt and penalty determination. (People v. Horton (1995) 11 Cal.4th 1068, 1094.)

Good cause to discharge the guilt phase jury and to impanel a new one must be based on facts that appear   in the record as a demonstrable reality,   showing the jurys   inability to perform   its function. (People v. Earp, supra, 20 Cal.4th at p. 891; People v. Bradford (1997) 15 Cal.4th 1229, 1354, and cases cited.) We review the courts denial of defendants motion for a second jury for abuse of discretion. (People v. Bradford, supra, 15 Cal.4th at p. 1353.)

Defendant contends the court abused its discretion because it would be impossible for a jury that had heard the guilt phase evidence to decide upon an appropriate penalty. According to defendant, he was entitled to a new penalty phase jury that had not heard at trial the evidence of the eight charged burglaries and six charged attempted burglaries  offenses that, defendant asserts, were unconnected with the capital crimes. He claims the burglaries and attempted burglaries could not be considered in aggravation pursuant to section 190.2, factor (b), because they did not involve force or violence.

Defendants argument fails because, as we explain post, the court appropriately determined that the evidence of the noncapital burglaries properly could be considered in aggravation under section 190.3, factor (b), as evidence of prior criminal activity . . . which involved the use or attempted use of force or violence or the express or implied threat to use force or violence.

Defendant contends that even if the burglary and attempted burglary counts properly were considered under section 190.3, factor (b), reversible error still occurred because the trial court did not instruct the jury how it should determine whether or not these crimes involved force or violence within the meaning of section 190.3, factor (b).^[4] Putting aside the tenuous connection between this claim and defendants contention that the trial court abused its discretion in denying his motion for a separate penalty phase jury, the claim fails because, as we have held, instruction pursuant to the terms of section 190.3, factor (b) suffices, and a clarifying instruction is not required. (People v. Dunkle (2005) 36 Cal.4th 861, 922.)^[5]

2. Pitchess motion

The prosecution informed the defense that it would present in aggravation the testimony of San Diego County Deputy Sheriff Samuel Sheppard, who would recount an incident in which defendant had assaulted him in the county jail during the course of the trial. After the guilt phase verdict had been entered but before commencement of the penalty phase of the trial, defendant filed a motion seeking discovery of documents that recorded complaints against Sheppard for use of excessive force on persons in custody. (See Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess).) In support, defendant supplied defense counsels declaration recounting the officers asserted use of force against defendant and also alleging that other individuals had filed complaints against the officer for use of excessive force. Defendant demanded all written records of any instance of the officers use of force on any person in custody, names, addresses, and telephone numbers of all persons who had submitted complaints against the officer, and any documents recording disciplinary actions taken or investigations or possible disciplinary action to be taken against Sheppard related to the deputys treatment of persons in custody.

The San Diego County Sheriff did not oppose defendants request for names, addresses, and telephone numbers of complaining parties and witnesses involved in complaints against Deputy Sheppard during the previous five years, but the sheriff opposed release of any other material. The court evidently concluded that defendant had made a showing sufficient to require the court to order the sheriffs department to produce the records for the courts examination. The court conducted an in camera hearing and reviewed the sheriffs department records. Neither the prosecutor nor defense counsel were present at that hearing.

Subsequently, on the record, the court concluded that good cause is shown to provide counsel with a list of witnesses which will be provided to all parties and a protective order will issue as to this list, but the court ruled good cause did not exist to order disclosure of any other material named in defendants discovery motion.

On July 19, 1993, a disclosure and protective order was filed. It directed the sheriffs department to disclose to defendant the names[] of complainants and witnesses regarding allegations of excessive force or violence by Deputy . . . Sheppard . . . , for the five-year period immediately preceding the arrest of the defendant, subject to a protective order prohibiting dissemination of the information.

Defendant contends the trial court infringed upon his constitutional rights, because he could not examine the sealed record of the in camera hearing in the trial court to determine whether the court ruled correctly on his discovery motion.^[6] More specifically, he contends that the Fifth and Fourteenth Amendments to the United States Constitution guarantee that he have access to a full and accurate record for the purpose of appellate review. He asserts the silence of the record undermines the reliability of the death judgment, and that his Sixth Amendment rights to confrontation and to counsel are implicated.

We are not persuaded by defendants constitutional claims.

[S]tate law entitles a defendant only to an appellate record adequate to permit [him or her] to argue the points raised in the appeal. [Citation.] Federal constitutional requirements are similar. The due process and equal protection clauses of the Fourteenth Amendment require the state to furnish an indigent defendant with a record sufficient to permit adequate and effective appellate review. [Citations.] Similarly, the Eighth Amendment requires reversal only where the record is so deficient as to create a substantial risk the death penalty is being imposed in an arbitrary and capricious manner. [Citation.] The defendant has the burden of showing the record is inadequate to permit meaningful appellate review. [Citation.] (People v. Rogers, supra, 39 Cal.4th at pp. 857-858.) It is also defendants burden to show that deficiencies in the record are prejudicial. (People v. Howard (1992) 1 Cal.4th 1132, 1165.)

Defendant fails to demonstrate that the record is inadequate to permit effective review in this court. The in camera hearing to which defendant alludes was transcribed and has been examined by this court. The appellate record available to defendant is not so deficient as to create a substantial risk the death penalty was being inflicted in an arbitrary and capricious manner within the meaning of the Eighth Amendment. (People v. Rogers, supra, 39 Cal.4th at p. 857.) Moreover, the trial court proceedings properly occurred in camera and were sealed, as were the documents that formed the basis for the trial courts ruling. (People v. Mooc (2001) 26 Cal.4th 1216, 1229.)

Certainly, a defendants right to discovery is intended to ensure a fair trial and an informed defense based upon   all relevant and reasonably accessible information.   (People v. Gonzalez (2006) 38 Cal.4th 932, 960.) On the other hand, defendants right to counsel, to put on a defense, and to confrontation were not violated simply because the court followed the practice we outlined in Pitchess and have endorsed for many years, a practice we have concluded adequately balances the defendants right to a fair trial with the officers right of privacy. (See Pitchess v. Superior Court, supra, 11 Cal.3d 531; see also People v. Samuels (2005) 36 Cal.4th 96, 109; Alford v. Superior Court (2003) 29 Cal.4th 1033, 1043; City of Los Angeles v. Superior Court (2002) 29 Cal.4th 1, 14-16; People v. Mooc, supra, 26 Cal.4th at pp. 1226-1227, 1229; City of San Jose v. Superior Court (1993) 5 Cal.4th 47, 50-53.)

In the present case, the trial court found good cause to examine the evidence concerning possible complaints against the officer. The proceedings conducted by the court were consistent with the standard we have established. As we have stated, the court should review[] the pertinent documents in chambers and disclose[] only that information falling within the statutorily defined standards of relevance. [Citations.] The trial court may not disclose complaints more than five years old, the conclusions of any officer who investigates a citizen complaint of police misconduct, or facts so remote as to make [their] disclosure of little or no practical benefit. [Citations.] Typically, the trial court discloses only the names, addresses, and telephone numbers of individuals who have witnessed, or have previously filed complaints about, similar misconduct by the officer. [Citation.] (Warrick v. Superior Court (2005) 35 Cal.4th 1011, 1019.) The trial court followed precisely the procedure we have outlined.^[7]

This court routinely independently examines the sealed records of such in-camera hearings to determine whether the trial court abused its discretion in denying a defendants motion for disclosure of police personnel records. (See People v. Lewis & Oliver (2006) 39 Cal.4th 970, 992; People v. Chatman, supra, 38 Cal.4th at p. 398; People v. Samuels, supra, 36 Cal.4th at pp. 110-111; People v. Hughes, supra, 27 Cal.4th at p. 330 [noting that customarily appellate counsel are not permitted to view transcripts of sealed Pitchess motion hearings].)

The record in the present case is adequate to permit meaningful appellate review. It includes a full transcript of both segments of the in camera hearing and the documents that formed the basis for the courts conclusion that defendant was not entitled to the complaints that had been filed against Sheppard. The court directed that the officers personnel file not be copied and inserted into the record, but the court adequately stated for the record the contents of that file. (See People v. Mooc, supra, 26 Cal.4th at p. 1229 [in some circumstances it suffices for the court to state for the record what documents it examined].) The court noted that there was not a single item indicating that Sheppard ever had suffered discipline for any reason.

We have reviewed the record under seal and independently conclude that the trial court did not abuse its discretion in its ruling upon the Pitchess motion. (See People v. Hughes, supra, 27 Cal.4th at p. 330 [an abuse-of-discretion standard of review applies].) Moreover, the trial court ordered disclosure of the names of complainants and witnesses in the first two incidents (the third being the one involving the complaint filed by defendant). Defendant had access to the information needed to explore the possibility that the deputy had been involved in the prior use of excessive force. Defendant offers no explanation why this information was inadequate, nor do we find any.

3. Victim-impact evidence

After appropriate objections from defendant and hearings held on several occasions, the court permitted the prosecution to introduce a videotape of a 25-minute interview of Holly Tarr that had been taped a few months prior to her death. Defendant contends the tape was inflammatory and went beyond the type of so-called victim-impact evidence that may be admitted consistently with constitutional principles. He claims a violation of his right to a fundamentally fair trial and to confront and cross-examine witnesses, citing the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution. In addition, he claims the introduction of the evidence and its probable emotional impact upon the jury violated his right to due process of law and a reliable penalty determination, citing Evidence Code section 352 and the Fifth, Eighth, and Fourteenth Amendments.

Story continues as Part VIII .

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^[1] We also are unpersuaded by defendants claims that the inconsistent rulings on the Fiorito and Cotalessa-Ritchie testimony constituted an arbitrary and fundamentally unfair application of state evidentiary rules (see U.S. Const., 5th & 14th Amends; Hicks v. Oklahoma, supra, 447 U.S. 343, 346) and a deprivation of the right to a fair jury trial in accordance with due process of law, to present all relevant evidence, to compulsory process, to confrontation, and to reliable factfinding (citing U.S. Const., 5th, 6th, 8th, & 14th Amends).

^[2] The DNA evidence in the present case was subjected to an analysis using the so-called modified product rule.
In testing genetic material for forensic purposes, the final part of the analysis is a calculation of the statistical probability that a characteristic found in the crime scene sample and the defendants sample would be represented in sample genetic material from a random selection of the population. A statistical operation known as the product rule is employed.  The product rule states that the probability of two events occurring together is equal to the probability that the first event will occur multiplied by the probability that the second event will occur.  (People v. Jones (2003) 29 Cal.4th 1229, 1250, fn. 5.) Originally the product rule was the subject of spirited debate, some population geneticists arguing that the relevant random samples were composed without regard to population substructures, that is without adequately accounting for subgroups among various ethnicities. In response, the product rule was artificially modified to produce a conservative result in order to avoid overstating the incriminating value of the test result, and this court concluded that the modified rule had been accepted in the scientific community and produced evidence admissible under this courts Kelly standard. (People v. Venegas (1998) 18 Cal.4th 47, 85, 87, 89.) It was the product of this modified statistical operation that the trial court in the present case determined was generally accepted in the relevant scientific field. The prosecution experts testified accordingly. This court subsequently recognized that additional research had resolved the scientific controversy that led to the modified product rule, leaving intact the integrity of the unmodified product rule. (People v. Soto, supra, 21 Cal.4th at p. 538 [[s]everal developments . . . indicate that the controversy over population substructuring and use of the unmodified product rule has dissipated].) Accordingly, in the present case the experts in fact did use a conservative method compared with the less conservative unmodified product rule. (Ibid., see also id. at p. 541.)

^[3] We find support for our conclusion in decisions from other jurisdictions. In U.S. v. Sherlock (9th Cir. 1989) 962 F.2d 1349, for example, the court commented that the right to a public trial is not absolute, but on occasion must give way . . . to other interests essential to the fair administration of justice. [Citations.] [] Federal courts have recognized limitations on that right where a judge has excluded spectators during a witnesss testimony for a justifiable purpose, noting cases that permit carefully tailored closure to protect witnesses from harassment and physical harm. (Id. at p. 1356.) Many decisions have approved limited closure during the testimony of undercover officers, both in the interest of the officers personal safety and to prevent disruption of the officers ongoing investigations. (Ayala v. Seckard (2d Cir. 1997) 131 F.3d 62, 72 [closure during undercover officers testimony to maintain effectiveness of undercover operations]; United States ex rel. Lloyd v. Vincent (2d Cir. 1975) 520 F.2d 1272, 1274, and cases cited [same]; People v. Hinton (N.Y. 1972) 286 N.E.2d 265, 267 [closure because of the danger to investigative agents effectiveness and personal safety;] see People v. Gonzalez (N.Y. App.Div. 2000) 716 N.Y.S.2d 23; see also Sevencan v. Herbert (2d Cir. 2002) 316 F.3d 76, 84-85 [officers safety was involved, and the closure served an overriding interest and was no broader than necessary].)

^[4] The court instructed pursuant to section 190.3, factor (b), and pursuant to CALJIC No. 14.50 on burglary.

^[5] Defendant claims that the courts error in denying his motion for a separate penalty phase jury violated various constitutional rights. He claims that when good cause for a separate penalty phase jury has been shown, denial of a motion for a separate penalty phase jury constitutes an arbitrary deprivation of a state entitlement in violation of his right to due process of law. But he did not demonstrate good cause for the empanelment of a separate jury. We also reject defendants claims that this purported state law error rendered the penalty verdict unreliable in violation of the Eighth and Fourteenth Amendments, that the taint of the inadmissible burglary evidence deprived defendant of his right to a fair jury trial by an unbiased factfinder in violation of the due process clause of the United States Constitution, and that the error caused the jury to act without adequate guidance in violation of the Eighth and Fourteenth Amendments. Nor did the unitary jury so skew the balancing process that defendant was deprived of his right under the Eighth Amendment to have the jury fairly consider his evidence in mitigation.

^[6] On October 17, 2001, we denied defendants motion to unseal the transcript of the in camera Pitchess hearing.

^[7] Defendant suggests that his trial counsels presence at the in camera hearing, along with the opportunity to examine witnesses, might have elicited exculpatory evidence, otherwise supported his defense in the present case, or given rise to unknown constitutional claims of error, but this claim finds no support in the record we have reviewed.