# People v. Gray

> California Supreme Court · August 25, 2005 · 33 Cal. Rptr. 3d 451

URL: https://www.frixlaw.com/law-library/cases/9788530

## Case

- **Full name:** The PEOPLE, Plaintiff and Respondent, v. MARIO LEWIS GRAY, Defendant and Appellant
- **Court:** California Supreme Court
- **Decided:** August 25, 2005
- **Citations:** 33 Cal. Rptr. 3d 451; 37 Cal. 4th 168; 2005 Daily Journal DAR 10483; 118 P.3d 496; 2005 Cal. Daily Op. Serv. 7651; 2005 Cal. LEXIS 9351
- **Precedential status:** Published
- **Opinion:** Concurrence by Chin
- **Judges:** Werdegar, Baxter, Chin
- **Cited by:** 368 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9788530

## Opinion text

CHIN, J., Concurring.
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 failure of retained defense expert to testify]; People v. Wash (1993) 6 Cal.4th 215, 262-263 [ 24 Cal.Rptr.2d 421 , 861 P.2d 1107 ] [prosecutor properly commented on defense failure to call expert psychiatric testimony to support claim of suicidal depression during defendant’s confession].)
*239 I see nothing in the prosecutor’s argument in either Coddington or the present case that in any way invaded or infringed the work product or privacy of the defense team. Indeed, it seems quite reasonable and legitimate for the prosecutor to observe that although all the forensic evidence linking defendant to the crimes was passed on to defense experts, none of them was called to contradict the prosecution experts. In some future case, we should consider disapproving Coddington on this point.
Baxter, J., concurred.
Appellant’s petition for a rehearing was denied October 26, 2005.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9788530. Public record. Not legal advice.