Full opinion text
Opinion KENNARD, J. Defendant appeals his conviction by jury verdict of one count of first degree murder (Pen. Code, § 187; unless otherwise stated, all further statutory references are to this code), with three felony-murder special circumstances: murder in the commission of rape, of sodomy, and of a lewd or lascivious act upon a child less than fourteen years old (§ 190.2, former subd. (a)(17)(iii), (iv), and (v)). The jury returned a penalty verdict of death. This appeal is automatic. (§ 1239, subd. (b).) I. Facts and Proceedings A. Prosecution’s Guilt Phase Case In August 1988, defendant was living with his girlfriend, Virginia Mac-Nair, at her house in Palmdale, located in the Antelope Valley area of Los Angeles County. The two often cared for Amanda Doshier, the eighteen-month-old daughter of their friend, Cindy Doshier. On August 22, Doshier left Amanda with MacNair and defendant for a few days. Over the next couple of days, MacNair changed the baby’s diapers several times but did not notice any bruising, redness, or swelling in the anal or vaginal area. On Thursday, August 25, around 7:00 a.m., MacNair went to work, leaving Amanda with defendant. Shortly before 3:00 p.m., defendant telephoned MacNair. He seemed frantic. Defendant mentioned something about the couple’s dog, “Buster,” and he said that Amanda was “not doing well” and that her breathing was “shallow.” MacNair suggested that defendant check the baby’s pulse and “shake her,” and that he phone the paramedics. About 3:00 p.m., Los Angeles County firefighter Daniel Elkins arrived at MacNair’s Palmdale home in response to a radio call regarding an injured child. Elkins was met at the door by a young man who told him that the baby had fallen down the stairs. Elkins determined that the child was not breathing. He started cardiopulmonary resuscitation (CPR), but stopped to check for vital signs. He detected no pulse and noticed that the baby’s lips were blue. Figuring he “could not do much” because the paramedics had not arrived and he had no medical equipment, Elkins decided to take the baby to the hospital in the fire truck. Just after the fire truck left with Amanda, Kaylene Oliver, a neighbor, saw defendant walk away from MacNair’s house toward 20th Street. As defendant passed, Oliver asked about the baby; defendant said something about “the heat” doing “that” “to her.” Sometime in the afternoon of August 25, defendant telephoned Terry Dickerson, a coworker on a construction painting crew, and asked for a ride. On his way to MacNair’s house, Dickerson saw defendant walking down 20th Street. Dickerson took defendant to his mobilehome, where they watched television. When Dickerson asked about Amanda, defendant said she was with a babysitter. After defendant’s frantic call, Virginia MacNair left work and drove to Palmdale Hospital Medical Center, the hospital nearest her home, where she assumed Amanda had been taken. There she was interviewed by Deputy Sheriff Michael McNeil, who was looking into the cause of Amanda’s injuries. Deputy McNeil and two other deputies accompanied MacNair to her house, where she consented to a search. The deputies recovered various items including a bloodstained pillow from the living room couch. Deputy McNeil told MacNair that Amanda had been severely beaten and molested, and another deputy sheriff said something about “sodomy.” Around 6:00 or 6:30 on the evening of August 25, defendant telephoned MacNair at home and asked about Amanda. MacNair said that Amanda was not doing well. She also told him about the search of the house, and that the deputy sheriffs had said that Amanda had been sexually abused. About 8:00 p.m., MacNair went to Kaiser Hospital on Sunset Boulevard in Hollywood where Amanda was being airlifted by helicopter. At the hospital, Detectives Edwin Milkey and George Roberts of the Los Angeles County Sheriff’s Department questioned MacNair. Later, Milkey and Roberts served a search warrant at MacNair’s house and recovered a bloody paper napkin and some bedding. Defendant spent the evening of August 25 at Terry Dickerson’s mobile-home playing cards with Dickerson and two other friends, Mike and Colleen Levis. Colleen asked about Amanda, who she knew had been staying with defendant and MacNair. Defendant told her he had left Amanda with a babysitter. About 9:00 p.m., Mike Levis’s mother telephoned and said that the police were at her house looking for defendant. When Colleen asked defendant why the police would be looking for him, he replied that his dog had knocked Amanda down the stairs. Later, defendant asked Colleen if a doctor could tell that a baby had been sexually molested just by looking at it. Around 2:00 a.m., Dickerson drove Colleen Levis to her mother-in-law’s house; he then returned to his mobilehome. A half hour later, Colleen telephoned her husband, Mike, at the mobilehome to tell him that police officers had twice come by his mother’s house looking for defendant and that they said that Amanda had been “mutilated.” Mike related this information to defendant. A few minutes later, Colleen called again and said that a “bunch of cops” were headed toward the trailer park. Defendant left immediately. At 3:30 a.m. Friday morning, defendant arrived at the mobilehome of Patricia and Ron Avery, friends who lived in the same trailer park as Dickerson. Defendant explained that he had been driving around in a friend’s car when he saw police cars and became worried because he had outstanding bench warrants. When Patricia asked after MacNair and Amanda, defendant gave her the impression that they were staying with someone in the San Fernando Valley. In the afternoon of Friday, August 26, at defendant’s request, Ron Avery dropped defendant off in an area of the Antelope Valley where new houses were under construction. That same afternoon, defendant called his mother, Helene Perusse, at her home in the Sacramento area and begged her to drive to Palmdale and get him. Perusse and her boyfriend, Ken Robson, did so the next day, Saturday, shortly after midnight. Defendant told them he was scared because he had violated his parole and was being blamed for “an accident” in which his dog had “knocked the baby down the stairs.” That Saturday morning, at 10:30 a.m., Amanda died. The next day, at the request of defendant’s mother, a church elder, James Lewis, who was also an attorney, met defendant at the Sacramento County Sheriff’s office, where defendant turned himself in. Medical examinations of baby Amanda established the following: severe bruising in the anal area; blood in the vaginal and rectal areas. The rectum showed small lacerations or tears; the vagina was gaping, which was inconsistent with the normal vagina of a 18-month-old girl, suggesting probing or poking with some object. There was “retinal hemorrhaging” or bleeding eyeballs, a condition associated with “shaken baby syndrome.” Dr. Eva Hauser, a medical examiner with the Los Angeles County Coroner’s Office, performed an autopsy on baby Amanda. Dr. Hauser found bruising near the anal opening and stretched-out muscles surrounding the anus, both indicative of sexual assault. The interior of the anus had dark purple bruising, and there was hemorrhaging in the soft tissues inside Amanda’s body between the vaginal and rectal areas. These injuries were consistent with blunt force trauma by a human penis either inside the rectum or inside the vagina, but were inconsistent with force applied outside the body. Other blunt force trauma injuries present near the vaginal opening were consistent with sexual penetration, although not necessarily vaginal penetration. Dr. Hauser attributed Amanda’s death to two factors: multiple sharp impacts to the top of the head and severe shaking. She testified, “This baby was shaken about as forcefully as an adult can shake an infant.” The injuries to the rectal and genital areas preceded the head injuries. All of the injuries were inflicted within six to eight hours, although they could have occurred in substantially less than six hours. B. Defendant’s Guilt Phase Case Defendant testified on his own behalf. He denied sodomizing, sexually molesting, or otherwise harming baby Amanda. He blamed one Dennis Morgan, who defendant claimed was present with him at MacNair’s Palm-dale house on August 25, 1988, just before Amanda lost consciousness. Defendant had met Morgan at Susanville while defendant was serving time for burglary. After Morgan was paroled and moved to Los Angeles, he wrote and offered to help defendant find a job upon his release. Defendant was released on parole in May 1985, but his release was conditioned upon his remaining in the San Jose area. Shortly thereafter, defendant’s parole officer gave him permission for a two-week visit to Los Angeles. There, defendant met up with Morgan, who got him a job in telemarketing. Defendant stayed in Southern California, using the alias “Ricky Belliche,” and never again reported to his parole officer. Through Morgan, defendant met Diane Ellison, with whom Morgan was living, as well as Ellison’s daughter Cindy Doshier, and Virginia MacNair, who became defendant’s girlfriend. Sometime in 1986, defendant moved in with MacNair at a house she bought in the Palmdale area of the Antelope Valley and he began working on a construction crew doing painting and drywall work. In August 1988, MacNair was eight months pregnant with defendant’s child. Defendant decided to take time off from work beginning August 22 so he could paint the room they planned to use as a nursery. On the evening of August 22, Cindy Doshier, who was having marital problems, dropped Amanda off to stay with MacNair and defendant for a few days. Defendant looked after Amanda on the 23d and 24th while MacNair was at work. On the 24th, defendant’s dog ran into Amanda and knocked her over. That same day Amanda “got stuck” on the stairs with her legs straddling the openings between the stair treads. On August 25, MacNair left for work at 7:00 a.m. Throughout the morning, defendant painted the nursery. Around 12:30, Dennis Morgan came to the door. Defendant was surprised because he had not seen Morgan in nearly two years and Morgan had never before been to MacNair’s Antelope Valley house. Morgan asked if defendant knew where to buy some heroin. Defendant said he did not, but supplied Morgan with a spoon so that Morgan could “shoot up.” Defendant went upstairs to work on the nursery, leaving Morgan downstairs with Amanda. Sometime later, defendant saw Morgan spanking Amanda. Later still, defendant went to the backyard to wash his paintbrushes and stayed outside for between 25 and 30 minutes. When he came back inside, Amanda was lying at the foot of the stairs, unconscious. Defendant was very frightened and may have shaken Amanda. He phoned MacNair, who told him to dial “911.” Just as defendant started to make the “911” call, Morgan left the house, muttering that he did not “need this shit.” After the fire truck left the house with Amanda, defendant started walking to the hospital but became alarmed when a marked police car stopped in front of MacNair’s house. Defendant thought that the car might be connected to his parole violation, and that if he went to the hospital, his true identity would be found out. A few minutes later, defendant met his friend, Terry Dickerson, on 20th Street, and decided against going to the hospital. Dennis Morgan also testified for the defense at trial. He had met defendant at the Susanville prison and helped defendant get a job after defendant’s release. Morgan admitted being a heroin addict, having 19 different aliases, and being a bisexual who in prison had used the names “Dee Dee” and “Denise” and often wore makeup and curlers. Morgan had “told several people” that he and defendant “became lovers at Susanville.” Morgan denied going to defendant’s house on August 25, 1988, saying he did not know where defendant was living at that time. And he denied raping or molesting baby Amanda. On cross-examination, Morgan testified that in October 1991 (after the trial began in this case), he ran into defendant in the Los Angeles County jail. Defendant asked Morgan to testify for him at the penalty phase of this case. Morgan was to say that he and a Hispanic man named Joe were at MacNair’s house with defendant on August 25, 1988, when Amanda was fatally injured. Defense investigator Paul Ford also approached Morgan and asked him to testify for defendant at the penalty phase, saying he “needed somebody who could place somebody else at the house” that day. Morgan also received a visit in jail from defense attorney Louis Bernstein, who served him with a subpoena to testify in this case. When Morgan entered the attorney visitor room, a $20 bill was on the table. Morgan assumed that Bernstein had put it there. Douglas Ridolfi, a criminalist with the Los Angeles County Sheriff’s Department, testified that he examined vaginal, oral, and rectal samples taken from Amanda and did not detect any semen, sperm, or seminal fluid. Ridolfi also examined items seized during the searches of MacNair’s home and compared them with blood samples taken from defendant and Amanda. He determined that bloodstains on a pillow could have come from defendant, Amanda, and 52 percent of the population, and that bloodstains on a napkin were consistent with the blood types of defendant, Amanda, and 40 percent of the population. C. Prosecution’s Penalty Phase Case The prosecution introduced documentary evidence of defendant’s prior felony conviction for burglary. D. Defendant’s Penalty Phase Case Defendant’s aunt and mother testified that defendant’s early childhood years were marked by family dysfunction. His father was an alcoholic who was physically abusive to his wife and emotionally abusive to his children. When defendant was five years old, his father suffered brain damage in a beating. He stopped working and the next year committed suicide. Defendant’s mother remarried. Her new husband was an alcoholic who was violent to her and her children. As a young teenager, defendant started to get into trouble with the law and spent time at juvenile hall. At the age of 16, defendant was sent to the California Youth Authority. Gloria Carl, a juvenile hall cook who had befriended defendant, testified that he was awarded honor status at that facility. She believed that as a youth defendant committed crimes to get attention and because he lacked structure in his life. Virginia MacNair testified that she and her baby, defendant’s son bom in 1988, often visited defendant in jail, and that defendant had sent them letters and enclosed pictures he had drawn. James Park, who had been associate warden at San Quentin prison for two years and employed in the prison system for some forty years, expressed the view that defendant would pose no danger in a high security prison and that defendant’s artistic talent would assist him in adjusting to life in prison. n. Jury Selection: Adequacy of Voir Dire The trial court indicated it would conduct voir dire pursuant to then newly enacted section 223 of the Code of Civil Procedure. That section provides that in a criminal case the court “shall conduct the examination of prospective jurors,” but that the parties “upon a showing of good cause” may “supplement the examination.” Consistent with this procedure, the court decided to have prospective jurors give written answers to questions in a jury questionnaire. The defense offered its own questionnaire, which included a series of questions pertaining to each prospective juror’s experience with and attitudes about child molestation. Defense counsel argued that questions about each prospective juror’s “background, relatives, friends, associates, feelings” on the subject of child molestation were necessary to enable the defense to intelligently exercise its challenges for cause. The trial court refused to use defendant’s proposed questions. The court’s jury questionnaire did have this general question regarding juror experience with crime and the criminal justice system: “Have you or any close friend or relative ever been involved in a criminal incident or case either as a victim, suspect, defendant, witness, or other?” (Original underscore.) The court’s questionnaire also included questions about child molestation. After explaining that defendant was charged with “sexual misconduct involving the death of a child,” prospective jurors were asked: “In light of this, do you know any reason why you would not be a completely fair and impartial juror in this case?” In addition, the questionnaire described the capital sentencing process and then posed a series of inquiries to be answered in light of “the charges against defendant relating to allegations of sexual misconduct involving the death of a child.” For instance, each prospective juror was asked whether because of the nature of the charges the juror would “automatically refuse to vote in favor of the penalty of death and automatically vote for a penalty of life imprisonment without the possibility of parole?” or conversely, would “automatically refuse to vote in favor of the penalty of life imprisonment without the possibility of parole and automatically vote for a penalty of death?” (Original underscore.) After reviewing the completed questionnaires, defense counsel observed that only one of the one hundred and four prospective jurors had revealed a personal experience with child molestation. He noted that this constituted less than 1 percent of the total number of prospective jurors, and that according to scientific studies, between 6 and 38 percent of the general population reportedly have been victims of child molestation. He attributed the disparity in this case to the trial court’s refusal to question the prospective jurors regarding personal or family experience with child molestation. Defendant renewed his request for such questions to the prospective jurors. Again, the trial court refused to do so. Defendant now contends that this refusal violated the Sixth, Eighth, and Fourteenth Amendments to the federal Constitution and article I, sections 15 and 16 of the California Constitution. We disagree. We have long recognized that “[t]he right to unbiased and unprejudiced jurors is an inseparable and inalienable part of the right to a trial by jury guaranteed by the constitution.” (Lombardi v. California St. Ry. Co. (1899) 124 Cal. 311, 317 [57 P. 66].) “Voir dire plays a critical function in assuring the criminal defendant that his Sixth Amendment right to an impartial jury will be honored. Without adequate voir dire the trial judge’s responsibility to remove prospective jurors who will not be able impartially to follow the court’s instructions and evaluate the evidence cannot be fulfilled.” (Rosales-Lopez v. United States (1981) 451 U.S. 182, 188 [101 S.Ct. 1629, 1634, 68 L.Ed.2d 22], italics omitted.) Yet, trial courts have “great latitude in deciding what questions should be asked on voir dire.” (Mu’Min v. Virginia (1991) 500 U.S. 415, 424 [111 S.Ct. 1899, 1904, 114 L.Ed.2d 493], italics omitted.) In a state such as California that in capital cases provides for a sentencing verdict by a jury, “the due process clause of the Fourteenth Amendment of the federal Constitution requires the sentencing jury to be impartial to the same extent that the Sixth Amendment requires jury impartiality at the guilt phase of the trial.” (People v. Williams (1997) 16 Cal.4th 635, 666 [66 Cal.Rptr.2d 573, 941 P.2d 752], citing Morgan v. Illinois (1992) 504 U.S. 719, 726-728 and 740 [112 S.Ct. 2222, 2228-2229, 2235-2236, 119 L.Ed.2d 492] (dis. opn. of Scalia, J.) [clarifying the constitutional underpinnings of the Morgan holding].) California’s Constitution provides an identical guarantee. (People v. Williams, supra, at p. 666; see People v. Johnson (1992) 3 Cal.4th 1183, 1210-1211 [14 Cal.Rptr.2d 702, 842 P.2d 1]; People v. Gordon (1990) 50 Cal.3d 1223, 1248, fn. 4 [270 Cal.Rptr. 451, 792 P.2d 251].) As we explained in Williams, “[w]hen a prospective juror’s views about the death penalty ‘would “prevent or substantially impair the performance of his [or her] duties as a juror” ’ (Wainwright v. Witt (1985) 469 U.S. 412, 424 [105 S.Ct. 844, 852, 83 L.Ed.2d 841]), the juror is not impartial and may be challenged ‘for cause.’ ” (People v. Williams, supra, 16 Cal.4th at p. 667; see People v. Danielson (1992) 3 Cal.4th 691, 712 [13 Cal.Rptr.2d 1, 838 P.2d 729] [noting the same test applies when the prosecution challenges jurors opposed to capital punishment that governs defense challenges to those favoring capital punishment].) We have also held that “[a] prospective juror who would invariably vote either for or against the death penalty because of one or more circumstances likely to be present in the case being tried, without regard to the strength of aggravating and mitigating circumstances, is . . . subject to challenge for cause . . . .” (People v. Kirkpatrick (1994) 7 Cal.4th 988, 1005 [30 Cal.Rptr.2d 818, 874 P.2d 248].) Consequently, to preserve the right to a fair and impartial jury on the question of penalty, the death qualification process must probe “prospective jurors’ death penalty views as applied to the general facts of the case, whether or not those facts [have] been expressly charged.” (People v. Kirkpatrick, supra, 7 Cal.4th at p. 1005; People v. Clark (1990) 50 Cal.3d 583, 597 [268 Cal.Rptr. 399, 789 P.2d 127] [noting that death penalty voir dire “seeks to determine only the views of the prospective jurors about capital punishment in the abstract”].) Here the trial court’s voir dire procedure fully satisfied the requirements of the state and federal Constitutions that a fair and impartial jury determine questions of guilt and of penalty. The jury questionnaire mentioned that the charges against defendant pertained to “sexual misconduct involving the death of a child,” and it inquired of each prospective juror whether those charges would have any effect on the juror’s ability to be fair and impartial. And, after describing the sentencing process in a capital case, the questionnaire asked whether “the charges against defendant relating to allegations of sexual misconduct involving the death of child” would have any effect on the juror’s sentencing decision. Answers to these questions provided an adequate basis for the trial court and counsel to determine whether a prospective juror’s views or attitudes about child molestation would prevent the juror from impartially deciding defendant’s guilt (Mu’Min v. Virginia, supra, 500 U.S. at p. 430 [111 S.Ct. at pp. 1907-1908]; Patton v. Yount (1984) 467 U.S. 1025, 1035 [104 S.Ct. 2885, 2891, 81 L.Ed.2d 847]) or would cause the juror to “invariably vote either for or against the death penalty because of . . . circumstances . . . present in the case being tried” (People v. Kirkpatrick, supra, 7 Cal.4th at p. 1005). Defendant nevertheless insists that the more specific questions he had proposed regarding the jurors’ personal experience with and attitudes about child molestation were constitutionally compelled in this case. He invokes a line of United States Supreme Court authority requiring the questioning of prospective jurors on racial prejudice in certain cases in which the defendant and the victim belong to different racial or ethnic groups. The high court first imposed this requirement as part of its supervisory power over lower federal courts. (See Aldridge v. United States (1931) 283 U.S. 308 [51 S.Ct. 470, 75 L.Ed. 1054, 73 A.L.R. 1203] [holding it was reversible error for a federal court to fail to inquire into racial prejudice in a case involving a Black defendant accused of killing a White police officer]; see also Rosales-Lopez v. United States, supra, 451 U.S. 182, 192 [101 S.Ct. 1629, 1636] [concluding that a federal court must inquire about racial prejudice “when requested by a defendant accused of a violent crime and where the defendant and the victim are members of different racial or ethnic groups”].) The court has held that in state court actions the federal Constitution imposes a similar obligation when the factual circumstances of the case raise a “reasonable possibility” that racial prejudice could influence the jury. (See Ham v. South Carolina (1973) 409 U.S. 524 [93 S.Ct. 848, 35 L.Ed.2d 46] [reversible error to fail to question prospective jurors on racial prejudice in the trial of a Black civil rights activist charged with marijuana possession when the defendant intended to raise the defense that he had been framed due to his civil rights activities]; but see Ristaino v. Ross (1976) 424 U.S. 589 [96 S.Ct. 1017, 47 L.Ed.2d 258] [no factors comparable to those in Ham required questioning on racial prejudice in trial of Black defendant charged with attempted murder of White security guard].) Most recently, in Turner v. Murray (1986) 476 U.S. 28 [106 S.Ct. 1683, 90 L.Ed.2d 27], involving a Black defendant sentenced to death for killing the White owner of a jewelry store during a robbery, the high court held that, upon request, “a capital defendant accused of an interracial crime is entitled to have prospective jurors informed of the race of the victim and questioned on the issue of racial bias.” (Id. at pp. 36-37 [106 S.Ct. at p. 1688].) The court explained that because of the range of discretion a jury has in determining a capital defendant’s sentence, “there is a unique opportunity for racial prejudice to operate but remain undetected.” (Id. at p. 35 [106 S.Ct. at p. 1687].) Here, however, racial prejudice was not in issue. Defendant is quick to point out, however, that some federal appellate decisions have suggested that the defense has a right to question prospective jurors not only about racial prejudice but also about other topics “ ‘concerning which either the local community or the population at large is commonly known to harbor strong feelings that may stop short of presumptive bias in law yet significantly skew deliberations in fact.’ ” (United States v. Jones (9th Cir. 1983) 722 F.2d 528, 529-530, quoting United States v. Robinson (D.C. Cir. 1973) 475 F.2d 376, 380-381 [154 App.D.C. 265].) Defendant contends that sexual molestation is such a topic. Even if we were to agree with defendant in that regard, defendant suffered no denial of his constitutional rights as a result of the trial court’s refusal to ask prospective jurors the particular questions defendant had proposed. As we noted earlier, a trial court “retains discretion as to the form and number of questions on the subject, including the decision whether to question the venire individually or collectively.” (Turner v. Murray, supra, 476 U.S. at p. 37 [106 S.Ct. at p. 1689].) Here, the trial court’s questionnaire asked each prospective juror whether the juror “or any close friend or relative [had] ever been involved in a criminal incident or case either as a victim, suspect, defendant, or witness” (underscore omitted). The questionnaire then informed the prospective jurors that the charge against defendant pertained to “sexual misconduct involving the death of a child” and asked whether that fact would adversely affect any juror’s impartiality in deciding defendant’s guilt or sentence. We conclude that, considered together, these questions sufficiently probed the attitudes and views of potential jurors about child molestation. The federal and state Constitutions require no more. HI. Guilt Phase A. Asserted Doyle Error As stated at the outset, defendant testified at trial that Dennis Morgan was with him at the home of defendant’s girlfriend, Virginia MacNair, on August 25, 1988, when defendant found 18-month-old Amanda unconscious at the bottom of the stairs, and that Morgan left just as defendant was telephoning the paramedics. Defendant also testified that when his mother and MacNair visited him in jail, he held a note up to the glass partition separating inmates from their visitors. The note read, “I wasn’t the only one in the house that day.” After that, he never mentioned the matter again on advice of his family and lawyers. In cross-examining defendant, the prosecutor asked why during the three-year period between August 25, 1988, when Amanda was taken to the hospital, until trial, defendant had not mentioned to MacNair, Ms mother, or any of his friends that Dennis Morgan was a witness to the events of that day. The prosecutor also raised this when cross-examining MacNair and again in closing argument to the jury. Defendant contends that the prosecutor’s conduct violated Doyle v. Ohio (1976) 426 U.S. 610 [96 S.Ct. 2240, 49 L.Ed.2d 91] (Doyle), which prohibits the prosecution from impeaching a defendant’s trial testimony with evidence of the defendant’s silence after the defendant, having been advised of Ms constitutional rights under Miranda v. Arizona (1966) 384 U.S. 436 [86 S.Ct. 1602, 16 L.Ed.2d 694, 10 A.L.R.3d 974] (Miranda), chooses to remain silent. Defendant points out that he had invoked the right to remain silent. In Doyle, supra, 426 U.S. 610, 618 [96 S.Ct. 2240, 2245], the Urnted States Supreme Court stated: “[W]hile it is true that the Miranda warnings contain no express assurance that silence will carry no penalty, such assurance is implicit to any person who receives the warnings. In such circumstances, it would be fundamentally unfair and a deprivation of due process to allow the arrested person’s silence to be used to impeach an explanation subsequently offered at trial.” At issue in Doyle were comments by the prosecutor regarding the defendant’s failure to tell the police the version of events about which the defendant ultimately testified at trial. Assuming for the sake of argument that Doyle equally prohibits a prosecutor from commenting at trial on a defendant’s failure to tell friends and family the version of events he testifies to at trial, here many of the prosecutor’s questions and comments regarding defendant’s failure to mention Dennis Morgan as a suspect to friends and relatives did not implicate Doyle at all because they pertained to defendant’s silence on that topic before defendant was advised of and asserted the right to remain silent. The prosecutor’s inquiry pertained to a period that fell between Thursday, August 25, at 3:00 p.m., when baby Amanda lost consciousness and Sunday, August 28, when defendant surrendered to police. Because the prosecutor’s inquiry did not make use of “the arrested person’s [post-Miranda] silence ... to impeach an explanation subsequently offered at trial,” Doyle was not implicated. (Doyle, supra, 426 U.S. 610, 618 [96 S.Ct. 2240, 2245].) But other comments by the prosecutor regarding defendant’s failure to mention Dennis Morgan as a suspect to his family and friends do appear contrary to the spirit if not the letter of Doyle. For instance, in cross-examining Virginia MacNair, defendant’s girlfriend, the prosecutor asked, “At any time in the last three years has [defendant] said to you anything about T didn’t do something’?” The prosecutor also asked MacNair, “So even after [defendant] is sitting there talking to you for all these hundreds of times [during jail visits], not one time did he confide in you about what happened in that house that day?” And during closing argument the trial court sustained a defense objection that the prosecutor violated Doyle in the following statement referring to the attorney who accompanied defendant when he turned himself in: “I can see Mr. Lewis, [defendant’s] attorney [in Sacramento] . . . saying, ‘Now, whatever you do, I want you to think about this, whatever you do, don’t profess your innocence to your mother. And don’t tell her that there was perhaps eyewitnesses that would make, that would prove that you are innocent. Don’t tell her that.’ ” We conclude, however, that any Doyle error did not prejudice defendant. On the facts of this case, the jury was unlikely to have focused on defendant’s silence about Morgan after defendant’s arrest and receipt of Miranda warnings. Defendant himself explained at trial why, during that period, he had not told his friends and family that Dennis Morgan was with him the day baby Amanda was fatally injured. Defendant testified that during a jailhouse visit with his mother and MacNair he held up a note stating he was “not alone” on the day Amanda was injured. He explained, however, that he did not name Morgan as the person who was with him that day and that he had not further discussed the matter until trial because he was acting on advice of counsel. The prosecutor’s references to defendant’s failure to mention Dennis Morgan while in jail awaiting trial on this case were not what thoroughly impeached defendant’s trial testimony about Morgan’s visit to MacNair’s house on the day baby Amanda lost consciousness. Rather, what thoroughly impeached defendant’s testimony were the several versions of the cause of Amanda’s injuries that he gave his family and friends right after Amanda lost consciousness and was rushed to the hospital. (Two days later, Amanda died at the hospital.) It was at that time, before defendant was advised of and invoked his right to remain silent, that he gave false and misleading stories to his girlfriend, his mother, firefighter Daniel Elkins, neighbor Kaylene Oliver, and defendant’s Mends Terry Dickerson, Mike and Colleen Levis, and Patricia Avery, about what had happened to baby Amanda. According to defendant, “Buster” the dog had knocked her down; she fell down the stairs; she was suffering from “the heat”; she was with another babysitter. Notably, none of these stories made any mention whatsoever of Dennis Morgan, who, according to defendant’s trial testimony, had spanked Amanda just before she became unconscious. Accordingly, we are satisfied that any improper inquiry by the prosecutor regarding defendant’s failure to tell friends and relatives about Morgan’s involvement in Amanda’s injuries, a version he ultimately offered at trial, could not have affected the jury’s verdicts in this case. (Chapman v. California (1967) 386 U.S. 18, 24 [87 S.Ct. 824, 828, 17 L.Ed.2d 705, 24 A.L.R.3d 1065]; People v. Crandell (1988) 46 Cal.3d 833, 879 [251 Cal.Rptr. 227, 760 P.2d 423].) B. Prosecutorial Misconduct Defendant contends that the prosecutor in cross-examination and argument engaged in a pattern of misconduct that denied defendant a fair trial. We disagree. “Improper remarks by a prosecutor can ‘ “so infect[] the Mai with unfairness as to make the resulting conviction a denial of due process.” ’ (Darden v. Wainwright (1986) 477 U.S. 168, 181 [106 S.Ct. 2464, 2471, 91 L.Ed.2d 144]; Donnelly v. DeChristoforo (1974) 416 U.S. 637, 642 [94 S.Ct. 1868, 1871, 40 L.Ed.2d 431]; cf. People v. Hill (1998) 17 Cal.4th 800, 819 [72 Cal.Rptr.2d 656, 952 P.2d 673].)” (People v. Frye (1998) 18 Cal.4th 894, 969 [77 Cal.Rptr.2d 25, 959 P.2d 183].) “But 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 court or the jury.” ’ ” (People v. Espinoza (1992) 3 Cal.4th 806, 820 [12 Cal.Rptr.2d 682, 838 P.2d 204]; People v. Price (1991) 1 Cal.4th 324, 447 [3 Cal.Rptr.2d 106, 821 P.2d 610].) “To preserve for appeal a claim of prosecutorial misconduct, the defense must make a timely objection at trial and request an admonition; otherwise, the point is reviewable only if an admonition would not have cured the harm caused by the misconduct.” (People v. Price, supra, at p. 447; accord, People v. Berryman (1993) 6 Cal.4th 1048, 1072 [25 Cal.Rptr.2d 867, 864 P.2d 40].) Here, because any harm could have been cured by an admonition, defendant’s failure to make a timely objection and ask the court to admonish the jury precludes him from now challenging as misconduct many of the questions and comments by the prosecutor that he cites as part of an asserted pattern of misconduct. In any event, upon consideration of both the objected to and unobjected to contentions, we discern no prejudicial misconduct by the prosecutor in this case. 1. Prosecutor’s questions implying facts During the prosecutor’s cross-examination of defendant, the prosecutor asked the following question: “Well, isn’t it true that after you raped and sodomized this child you tried to wipe her off and clean her up?” Later in the cross-examination, this exchange took place: [Prosecutor] Mr. Foltz: “Isn’t it true that everything you’re saying here for this jury is just the things as you want them to be?” [Defense Counsel] Mr. Bernstein: “Objection. Argumentative.” The Court: “Sustained.” Mr. Foltz: “And isn’t it true that you made up Dennis Morgan and the Dennis Morgan story as recently as October 1991?” Mr. Bernstein: “Objection. Argumentative.” The Court: “Sustained.” Mr. Foltz: “Isn’t it true that you decided that you had no defense unless you made up Dennis Morgan?” Mr. Bernstein: “Objection. Argumentative.” The Court: “Sustained.” Mr. Foltz: “Did you make up Dennis Morgan?” Defendant: “No.” Defendant now contends that these and similar questions that the prosecutor asked defendant and other witnesses constituted prosecutorial misconduct because the questions implied facts harmful to the defense. We have held that a prosecutor commits misconduct by asking “a witness a question that implies a fact harmful to a defendant unless the prosecutor has reasonable grounds to anticipate an answer confirming the implied fact or is prepared to prove the fact by other means.” (People v. Price, supra, 1 Cal.4th at p. 481.) For a prosecutor’s question implying facts harmful to -the defendant to come within this form of misconduct, however, the question must put before the jury information that falls outside the evidence and that, but for the improper question, the jury would not have otherwise heard. (See People v. Warren (1988) 45 Cal.3d 471, 481 [247 Cal.Rptr. 172, 754 P.2d 218] [describing the gist of the misconduct as implying in the question “facts [the prosecutor] could not prove”].) Moreover, if “the prosecutor is not asked to justify the question, a reviewing court is rarely able to determine whether this form of misconduct has occurred.” (People v. Price, supra, at p. 481.) In both instances set forth above, the prosecutor’s questions were based on evidence already before the jury or inferences fairly drawn from that evidence. Therefore, there was no impropriety. We have examined the additional instances cited by defendant as improper questions by the prosecutor implying facts harmful to the defense. We conclude that they too were fairly derived from evidence already presented at trial, or that because of defendant’s failure to request that the prosecutor make an offer of proof regarding the fact implied in the question, it is not possible to conclude from the record that, if asked, the prosecutor would not have been able to put forward evidence establishing the harmful implied fact. 2. Prosecutor’s questions about Helene Perusse’s change in testimony At trial, defendant’s mother, Helene Perusse, testified during the prosecution’s case-in-chief that defendant telephoned her on Friday, August 26, 1988, at her home near Sacramento and asked that she drive to the Antelope Valley in Southern California and pick him up. Perusse and her boyfriend Ken Robson did so. Perusse admitted that at defendant’s preliminary hearing she had given false testimony that defendant had “just turned up” at her front door on Sunday, August 28, 1988. According to Perusse, the version of events she related at the preliminary hearing was at defendant’s suggestion that she tell it “ ‘that way’ ” so “ ‘there won’t be any trouble for you guys.’ ” After Perusse’s testimony, the prosecutor called defendant’s girlfriend, Virginia MacNair, as a witness. He asked her if she had been present at a meeting with Perusse and defense investigator Don Ingwerson that took place after the preliminary hearing and before trial. Defense counsel Bernstein objected to the question, citing the attorney-client privilege. (Evid. Code, § 954.) At a bench conference outside the jury’s presence, the prosecutor explained he wanted to ask MacNair “if Mr. Ingwerson told Helene during the course of that discussion to change her testimony from what she had previously testified to” in the preliminary hearing, adding “I don’t believe that subordination [sic] of perjury is ever privileged.” The trial court overruled defendant’s objection. Defense counsel next asked for an offer of proof by the prosecutor “on what relevancy he has that there has been such perjury.” He compared the situation to inquiring whether a witness had ever been convicted of a felony and proposed that the prosecutor ask MacNair the question outside the jury’s presence. The prosecutor responded that Helene Perusse had testified that she had changed her story sometime after the preliminary hearing and “after she had talked to [defense] counsel in this matter.” The prosecutor added: “Now, that doesn’t suggest that it’s counsel that in fact caused her to change that. But I think it opens it for inquiry as to who may have, and if there was a contact by Mr. Ingwerson at some time after the preliminary hearing and prior to her testimony here, then I think it’s relevant.” The trial court ruled there was “sufficient basis to ask that question.” The following colloquy then took place before the jury. Mr. Foltz: “Now, with regard to the last question. At any time while you were present and Mr. Ingwerson was talking to Ms. Perusse in your presence—” Ms. MacNair: “Uh-huh.” Mr. Foltz: “—did he ever ask her or tell her to change her testimony from the preliminary hearing?” Ms. MacNair: “Um, let’s see. I think he arrived at the house prior to me being there because I was at work so he was there before I arrived. So if they spoke I don’t know what they spoke about.” Mr. Foltz: “I am only asking you what you overheard while you were present.” Ms. MacNair: “No, I don’t remember hearing about that.” Defendant argues the prosecutor committed misconduct in asking Mac-Nair whether she had heard the defense investigator’s asking or telling Perusse to change her testimony. “A prosecutor is not guilty of misconduct when he questions a witness in accordance with the court’s ruling.” (People v. Rich (1988) 45 Cal.3d 1036, 1088 [248 Cal.Rptr. 510, 755 P.2d 960].) That is what the prosecutor did here. Before the prosecutor’s inquiry of MacNair, the trial court in a bench conference outside the jury’s presence expressly allowed the prosecutor to conduct the questioning in issue. 3. Prosecutor’s insinuation of possible subornation of perjury Defendant contends the prosecutor committed misconduct by insinuating in his cross-examination of defense witnesses that members of the defense team had encouraged false testimony. As one example, defendant points to the questioning of Ken Robson, the boyfriend of defendant’s mother. On direct examination Robson testified that defendant, upon learning of baby Amanda’s death, had said that someone else was with him when Amanda got injured, muttering the names “Dennis” and “Terry.” In cross-examining Robson, the prosecutor asked whether defense investigator Paul Ford had told Robson that it was “imperative” that the trial evidence “put somebody else in [defendant’s] house when Amanda was injured.” Because defendant did not object and request that the trial court admonish the jury to disregard the prosecutor’s questions, and because this was not a situation in which admonitions would have been futile, defendant may not now complain that the questions were prosecutorial misconduct. (People v. Berryman, supra, 6 Cal.4th at p. 1072; People v. Price, supra, 1 Cal.4th at p. 447.) Moreover, defendant’s claim lacks merit. A prosecutor’s suggestion or insinuation that defense counsel fabricated the defense is misconduct only when there is “no evidence to support that claim.” (People v. Mitcham (1992) 1 Cal.4th 1027, 1081-1082 [5 Cal.Rptr.2d 230, 824 P.2d 1277], italics omitted.) Here, there was evidence that members of the defense team may have suborned perjury. When Dennis Morgan was called as defense witness, he testified on cross-examination that defendant and the defense investigator had solicited him to give false testimony and that defense counsel offered him a bribe. 4. Prosecutor’s argument to jury that defendant and defense witnesses had lied Defendant contends that the prosecutor committed misconduct in arguing to the jury that “Mr. Earp lied about everything he said” and in characterizing defense witnesses as “liars” and their testimony as “lies.” Defendant, however, did not object at the time to this argument, and he fails to establish that any harm in the comments could not have been cured by an admonishment to the jury. Therefore, the issue is not properly before us. (People v. Berryman, supra, 6 Cal.4th at p. 1072; People v. Price, supra, 1 Cal.4th at p. 447.) Moreover, the prosecutor’s argument was based on inferences that could reasonably be drawn from the evidence and therefore was proper. “The prosecutor is permitted to urge, in colorful terms, that defense witnesses are not entitled to credence [and] to argue on the basis of inference from the evidence that a defense is fabricated . . . (People v. Pinholster (1992) 1 Cal.4th 865, 948 [4 Cal.Rptr.2d 765, 824 P.2d 571]; accord, People v. Edelbacher (1989) 47 Cal.3d 983, 1030 [254 Cal.Rptr. 586, 766 P.2d 1] [no impropriety in arguing that the defendant was a “ ‘pathological liar,’ and ‘one of the greatest liars in the history of Fresno County’ ”].) 5. Prosecutor’s purported harassment of defense witnesses According to defendant, the prosecutor harassed defense witnesses. In one instance, the prosecutor recalled Cindy Doshier, baby Amanda’s mother, to the witness stand to clarify a statement she had made, in response to a question by defense counsel, that the prosecutor had told her that semen was found in the course of a medical examination of baby Amanda that matched defendant’s. Because the weight of the medical evidence showed that semen was not found in or on Amanda, Doshier’s testimony implied that the prosecutor had somehow misled her about the state of the evidence. When recalled as a witness, however, Doshier testified that she had been mistaken and that it was her ex-husband who had told her the story about the semen. Defendant points to nothing in the record suggesting that improper tactics by the prosecutor prompted Doshier to recant her earlier testimony. Defendant bases his claim of prosecutorial harassment of Virginia Mac-Nair on a comment the prosecutor made outside the jury’s presence in the courthouse hallway after both sides had rested in the guilt phase trial when he told MacNair: “You are foolish and you know it.” When defense counsel heard of the incident, he reported it to the trial court, asserting it was “witness tampering.” The trial court chided the prosecutor for making the comment, but concluded that because the prosecutor had not in any manner threatened MacNair, there was no harassment or witness tampering. (See In re Martin (1987) 44 Cal.3d 1, 30-31 [241 Cal.Rptr. 263, 744 P.2d 374] [prosecutorial misconduct to threaten defense witnesses when the threat interferes with the defendant’s compulsory-process right].) Even if the comment could be construed as prosecutorial misconduct, defendant suffered no prejudice. The comment had no effect on the guilt phase of the trial, which had already been completed, and it did not deter MacNair from later testifying at the penalty phase as a defense witness. Defendant also mentions a comment the prosecutor allegedly made at sidebar, but not heard by the trial court, calling one of the defense lawyers “sleaze” or “sleazy.” Defendant fails to explain how this comment, even if heard by the jury, constituted prosecutorial harassment of defense witnesses. 6. Other contentions of prosecutorial misconduct Defendant contends that in arguing to the jury, “there is no reasonable doubt in this case unless you believe [defendant] is telling the truth,” the prosecutor suggested that a guilty verdict hinged on defendant’s credibility and thus improperly shifted the burden of proof to the defense. We discern no impropriety in the prosecutor’s argument. Viewed in context, it merely invited the jury to compare defendant’s explanation of the evidence with the prosecution’s while stressing to the jury that the prosecution had proven its case beyond a reasonable doubt. Similarly without merit is defendant’s claim that the prosecutor committed misconduct by expressing in argument to the jury his personal belief in defendant’s guilt. The prosecutor started to say, “And I am convinced,” but realizing he had misspoken, he quickly added “although my being convinced is irrelevant, [and defense counsel’s] feeling about the evidence is irrelevant.” The prosecutor then stressed the jury’s duty to decide the case “based upon the evidence.” Thus, the jury was not left with the impression that the prosecutor was convinced of defendant’s guilt based on information known to him but not presented at trial. (See People v. Sandoval (1992) 4 Cal.4th 155, 183 [14 Cal.Rptr.2d 342, 841 P.2d 862] [noting that when a prosecutor expresses personal belief in the defendant’s guilt the “jurors may assume there is other evidence at his command on which he bases this conclusion”].) There was no misconduct. We also reject defendant’s assertion that by arguing that defendant’s testimony was not to be believed, the prosecutor was urging the jury to return a guilty verdict for special circumstance murder because defendant had committed perjury. Here, the prosecutor did not argue that defendant’s lies warranted conviction, but rather that defendant had not told the truth. In this respect, this case differs from People v. Ellis (1966) 65 Cal.2d 529, 541, footnote 17 [55 Cal.Rptr. 385, 421 P.2d 393], in which we described as ' misconduct a prosecutor’s statement to the jury that it could “ ‘do nothing else but find a perjurer guilty’ ” of the charged offense. Nor is there merit to defendant’s claim that here the prosecutor had an obligation during defense counsel’s direct examination of prosecution investigator Detective Edwin Milkey to prevent Milkey from mentioning that he had investigated possible subornation of perjury. These are the relevant facts: During Milkey’s November 6, 1991, testimony, defense counsel Louis Bernstein inquired about an interview Milkey had conducted of Dennis Morgan on October 7, 1991, during a recess in this trial. Bernstein’s questioning focused on what Morgan had told Milkey about a telephone conversation between defendant and Diane Ellison, baby Amanda’s grandmother, around the time of baby Amanda’s death. This exchange followed: Mr. Bernstein: “Now, did you as an investigator, did you try to determine when this call from [defendant] or to [defendant] occurred in relationship to August 25, 1988 [the day Amanda lost consciousness]?” Detective Milkey: “Since October 7th? No, I have been chasing other things on some issues that have come up in this case concerning some people.” Mr. Bernstein: “So you haven’t done that; is that right?” Detective Milkey: “No, I haven’t. I have been looking at other issues.” Mr. Bernstein: “How come?” Detective Milkey: “If you want to know, I have been investigating subordination [szc] of perjury.” A prosecutor “has the duty to guard against statements by his witnesses containing inadmissible evidence,” and if a prosecutor “believes a witness may give an inadmissible answer during his examination, he must warn the witness to refrain from making such a statement.” (People v. Warren, supra, 45 Cal.3d 471, 481-482.) Here, Detective Milkey stated that he was investigating subornation of perjury in response to a question asked him not by the prosecutor but by defense counsel who had called Milkey as his own witness. Assuming for the sake of argument that under Warren the prosecutor here had a duty to see to it that during defense counsel’s questioning of the prosecutor’s investigator called as a defense witness, the investigator would not mention an ongoing investigation into subornation of perjury, nothing in the record suggests that the prosecutor had a basis for anticipating the response in question by Detective Milkey. Therefore, there was no prosecutorial misconduct. 7. Cumulative effect of asserted instances of prosecutorial misconduct Contrary to defendant’s assertion, when considered together, the instances of alleged prosecutorial misconduct discussed above, which constituted only a fraction of the questions and comments during the lengthy trial on the issue of defendant’s guilt, did not adversely affect the fundamental fairness of the trial. C. Alleged Withholding of Evidence by the Prosecution Defendant contends that the prosecution suppressed favorable, material evidence by failing to make available to the defense the following: photographs purportedly taken of defendant’s genitals; a tape recording of a conversation between baby Amanda’s grandmother, Diane Ellison, and her son Jeff; and a sheriff’s department report listing photographs taken on August 26, 1988, documenting the search of Virginia MacNair’s house. “The prosecution has a duty under the Fourteenth Amendment’s due process clause to disclose evidence to a criminal defendant” when the evidence is “both favorable to the defendant and material on either guilt or punishment.” (In re Sassounian (1995) 9 Cal.4th 535, 543 [37 Cal.Rptr.2d 446, 887 P.2d 527], citing United States v. Bagley (1985) 473 U.S. 667, 674-678 [105 S.Ct. 3375, 3379-3382, 87 L.Ed.2d 481]; see also Brady v. Maryland (1963) 373 U.S. 83, 87 [83 S.Ct. 1194, 1196-1197, 10 L.Ed.2d 215].) Evidence is “favorable” if it hurts the prosecution or helps the defense. (In re Sassounian, supra, at p. 544.) “Evidence is ‘material’ ‘only if there is a reasonable probability that, had [it] been disclosed to the defense, the result . . . would have been different.’ ” (Ibid., quoting United States v. Bagley, supra, at p. 682 [105 S.Ct. at pp. 3383-3384]; accord, Kyles v. Whitley (1995) 514 U.S. 419, 433-434 [115 S.Ct. 1555, 1565-1566, 131 L.Ed.2d 490].) Defendant asserts that in a capital case, the Eighth Amendment’s prohibition on cruel and unusual punishment is also violated by the prosecution’s suppression of material evidence favorable to the defense. As we shall explain, we discern no infringement of constitutional rights in the three instances cited by defendant. 1. Withholding photographs of defendant’s genitals Defendant contends that the prosecution wrongfully withheld from the defense certain photographs of defendant’s genitals. The relevant facts are these: On August 31, 1988, the day defendant was arraigned and entered a not guilty plea, the prosecutor asked the trial court to order “that defendant’s body be examined by the investigating officer and photographed if anything is revealed as a result of the examination.” Deputy Public Defender Charles Klum, who represented defendant at the arraignment, objected to the request. He added, however, that “in the event the court does sign this, I would like the court to order that I would be allowed to be present at the time that the search is made or that the viewing is made.” The prosecutor voiced no objection to such presence, and the trial court then granted the prosecution’s request for a physical examination of defendant. More than three years later, after the jury returned a death penalty verdict, defendant moved for a new trial (§ 1181), asserting for the first time that during the physical examination in August 1988, photographs were taken of his genitals but withheld from the defense. In a supporting declaration, Deputy Public Defender Klum stated that, together with medical personnel and members of the defense team, he was present at the Antelope Valley Municipal Court’s lockup facility “for both the physical examination and the taking of photographs,” and that he heard comments by those conducting the physical examination that defendant’s penis showed “no tearing or injuries.” Defendant’s own declaration stated that in the course of the August 31, 1988, physical examination, “photographs were taken of my genital area.” In opposing defendant’s motion for a new trial, the prosecution presented a declaration by its investigator, Detective Edwin Milkey, that after a cursory examination of defendant’s genitals he determined “there was nothing remarkable,” and thus “no photographs were taken,” either on August 31, 1988, or at any later time. The trial court denied defendant’s motion for a new trial. It ruled that photographs, if any, taken of defendant’s genitals during the August 31, 1988, physical examination would not be material on the issue of defendant’s guilt in light of the conclusion of those conducting the examination that there was no tearing or injury to defendant’s penis. That conclusion was made in the presence of, and heard by, Deputy Public Defender Charles Klum. The Attorney General points out that because the claimed photographs did not exist, there was nothing to turn over to the defense, noting that there is only defendant’s self-serving declaration that the prosecution had such photographs. The Attorney General notes that although the declaration of Deputy Public Defender Klum mentions those who were present for “the taking of photographs,” it does not state that Klum saw anyone take any photographs. We need not resolve the factual dispute. We agree with the trial court that any photographs taken during the August 31, 1988, physical examination would not qualify under the relevant constitutional standard as material evidence. (Kyles v. Whitley, supra, 514 U.S. 419, 433-434 [115 S.Ct. 1555, 1565-1566]; In re Sassounian, supra, 9 Cal.4th 535, 543.) It is not reasonably probable (Kyles v. Whitley, supra, 514 U.S. 419, 433; In re Sassounian, supra, 9 Cal.4th 535, 544), given the evidence of defendant’s personal culpability in this case, that the jury would have reached more favorable verdicts on guilt or on penalty had it known that photographs taken six days after the rape and sodomy of eighteen-month-old Amanda Doshier showed no tearing or bruising on defendant’s penis. 2. Prosecution’s failure to disclose tape recording Also not material to either guilt or penalty was the tape recording of a conversation between baby Amanda’s grandmother, Diane Ellison, and her son Jeff that defendant claims was wrongfully withheld from the defense. Ellison and Dennis Morgan, who defendant claimed was responsible for baby Amanda’s injuries, had lived together for a while after Morgan’s release from Susanville Prison, but later had a falling-out. During direct examination by the prosecutor, Ellison testified that she had assisted the defense investigators by providing them with Morgan’s name and telephone number but had given no information about Morgan to the prosecution. Ellison denied she had ever done “some favors” for defense investigator Paul Ford. She acknowledged, however, that “in a fit of temper” she might have told her son Jeff that a defense investigator owed her a favor. After a brief recess in the trial, the prosecutor resumed questioning Ellison. Ellison said that a tape recording the prosecution had played during the recess jogged her memory about the conversation she had with Jeff. The prosecutor then asked, “Did you in fact make a statement to your son, Jeff, that you were going to call [defendant’s] investigators or investigator because they owed you some favors?” Ellison replied, “In calming a hysterical child down yes, I did.” At one point, the prosecutor asked Ellison if she wanted to hear the tape recording again, so “you