Gray

A jury in Los Angeles County Superior Court convicted Mario Lewis Gray in 1989 of first degree murder (Pen. Code, § 187; all further statutory references are to this code unless otherwise indicated), burglary (§ 459), robbery (§ 211), forcible rape (§ 261, subd. (a)), and forcible sodomy (§ 286, subd. (c)), all perpetrated against the person or home of victim Ruby Reed. The jury also sustained four special circumstance allegations in connection with these crimes: that defendant murdered Reed while engaged in the commission of burglary, attempted robbery, forcible rape, and forcible sodomy. (§ 190.2, former subd. (a)(17)(i), (iii), (iv) & (vii), now redesignated subd. (a)(17)(A), (C), (D) & (G).) In addition, the jury convicted defendant of six unrelated first degree burglaries. (§ 459.) On February 1, 1990, the jury set the penalty at death under the 1978 death penalty law. (§ 190.1 et seq.) This appeal is automatic. (§ 1239, subd. (b).) We affirm the judgment in its entirety.

I. Guilt Phase

A. Facts

1. April 23, 1987: Five Burglaries

Michael Barry lived with his wife in a trailer park on Lycoming Street in the City of Walnut. On the morning of April 23, 1987, around…

I concur, but I would have preferred the majority explore the question whether one aspect of our decision in People v. Coddington (2000) 23 Cal.4th 529, 605-606 [ 97 Cal.Rptr.2d 528 , 2 P.3d 1081 ], should be reconsidered. Coddington suggested that the work product privilege (see Code Civ. Proc., former § 2018) would preclude a prosecutor from even arguing that the defendant’s failure to call defense experts who had examined forensic evidence at the crime scene logically indicated they had nothing helpful to contribute.

The majority in the present case, without questioning Coddington'? analysis, conclude that even if defense counsel should have raised the work product objection, no prejudice ensued in light of the strong evidence of defendant’s guilt. (Maj. opn., ante, at pp. 208-209.) I joined the majority in Coddington , but now I wonder whether its work product analysis was flawed, being directly inconsistent with the general rule that the prosecutor may comment on the defense’s failure to call a retained expert or other logical witness to rebut the People’s case. (See People v. Bolden (2002) 29 Cal.4th 515, 552-553 [ 127 Cal.Rptr.2d 802 , 58 P.3d 931 ] [jury could consider…

I concur with the majority and have also signed Justice Chin’s concurring opinion. To the extent that People v. Coddington (2000) 23 Cal.4th 529 [ 97 Cal.Rptr.2d 528 , 2 P.3d 1081 ], which I authored, suggests that the work product rule would bar a prosecutor from commenting on the defendant’s failure to call defense experts who had examined forensic evidence relevant to the case, it merits reexamination. (See United States v. Grammer (9th Cir. 1975) 513 F.2d 673, 676 .)

A jury in Los Angeles County Superior Court convicted Mario Lewis Gray in 1989 of first degree murder (Pen.Code, § 187; all further statutory references are to this code unless otherwise indicated), burglary (§ 459), robbery (§ 211), forcible rape (§ 261, subd. (a)), and forcible sodomy (§ 286, subd. (c)), all perpetrated against the person or home of victim Ruby Reed. The jury also sustained four special circumstance allegations in connection with these crimes: that defendant murdered Reed while engaged in the commission of burglary, attempted robbery, forcible rape, and forcible sodomy. (§ 190.2, former subd. (a)(17)(i), (iii), (iv) & (vii), now redesignated subd. (a)(17)(A), (C), (D) & (G).) In addition, the jury convicted defendant of six unrelated first degree burglaries. (§ 459.) On February 1, 1990, the jury set the penalty at death under the 1978 death penalty law. (§ 190.1 et seq.) This appeal is automatic. (§ 1239, subd. (b).) We affirm the judgment in its entirety.

Michael Barry lived with his wife in a trailer park on Lycoming Street in the City of Walnut. On the morning of April 23, 1987, around 5:30 or 6:00 a.m., he awoke and noticed the window on the…