What is the burden of proving that a prosecutor's failure to disclose the contents of a cell phone call was prejudicial to a defendant?

(2011) 52 Cal.4th 610, 637-643.) Nevertheless, " 'the touchstone of due process analysis in cases of alleged prosecutorial misconduct is the fairness of the trial, not the culpability of the prosecutor.' [Citation.]" (In re Price (2011) 51 Cal.4th 547, 560.) "Whatever methods a trial or appellate court might otherwise use to bring to heel a recalcitrant or incorrigible prosecutor, the federal Constitution does not require (and the state Constitution does not permit) the reversal of a criminal conviction unless the misconduct deprived defendant of a fair trial or resulted in a miscarriage of justice. [Citation.]" (People v. Hinton (2006) 37 Cal.4th 839, 865.)

It is defendant's burden to show the late disclosure was prejudicial. (People v. Pinholster (1992) 1 Cal.4th 865, 941, disapproved on another ground in People v. Williams (2010) 49 Cal.4th 405, 459.) We conclude defendant has not done so here. Defendant mentioned the call in his statement to police, and would have been subject to cross-examination on the subject regardless of when the prosecutor disclosed the contents. We fail to see what defense counsel could have done differently, had timely disclosure been made, as it is speculative to assume investigation into the exact time of the shooting would have turned up anything helpful to defendant.²⁰ It is also speculative to believe defendant would not have testified. The jury would have been left with his unchallenged confession. His only hope was to testify and give jurors reason to believe his confession was false. The calls shown on his cell phone call log around the time of the shooting were, in essence, his alibi. Because of this, it would have been impossible for him to avoid testifying about them on direct examination, rendering them fair game for cross-examination.²¹ (Evid. Code, 773, subd. (a).)

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