Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kern County, No. BF117501, Arthur E. Wallace, Judge.
Janet J. Gray, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Daniel B. Bernstein, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
POOCHIGIAN, J.
INTRODUCTION
In 1998, A.W. was assaulted, kidnapped, and raped while she was working as a prostitute in Bakersfield. In 2002, N.R. was assaulted, kidnapped, and raped in a similar but seemingly unrelated incident in Bakersfield. Both victims were taken to the hospital, sexual assault examinations were conducted, and DNA evidence was obtained, but no one was arrested for the offenses. Several years later, the Kern County Regional Crime Laboratory received a grant to test DNA evidence from unsolved sexual assault cases. The DNA evidence obtained from A.W. and N.R. was matched to appellant/defendant Jose Hernandez. Both A.W. and N.R. were shown photographic lineups with defendant’s picture. A.W. immediately identified defendant as the man who raped her. When N.R. looked at the photographic lineup, she was extremely hesitant to identify anyone, but she subsequently identified defendant from a different photograph.
Defendant was convicted of several felonies based on committing the sexual assaults on A.W. and N.R.: counts I and IV, rape (Pen. Code, § 261, subd. (a)(2)), counts II and V, kidnapping (Pen. Code, § 207, subd. (a)); and counts III and VI, criminal threats (Pen. Code, § 422), with enhancements for infliction of great bodily injury on the victims (Pen. Code, § 667.61, subd. (e)(3)), § 12022.7, subd. (a)); kidnapping the victims (Pen. Code, § 667.61, subd. (e)(1)); the kidnapping substantially increased the risk of harm (Pen. Code, § 667.61, subd. (d)(2)); and committing the same offense against more than one victim (Pen. Code, § 667.61, subd. (e)(5)). Defendant was sentenced to an aggregate term of 50 years to life, plus 14 years 4 months.
On appeal, defendant contends the introduction of the DNA evidence in this case violated his Sixth Amendment right to confront and cross-examine witnesses. Defendant also contends the court improperly admitted evidence that he committed another sexual assault in an unrelated case that occurred after the charged offenses in this case, pursuant to Evidence Code sections 1108 and 1101, subdivision (b). Finally, defendant claims the prosecution relied on a legally insufficient theory for kidnapping of N.R. We will affirm.
All further statutory citations are to the Evidence Code unless otherwise indicated.
FACTS
Counts I, II & III-A.W.
On July 2, 1998, A.W. was working as a prostitute about a block away from her home in Bakersfield. She was five months pregnant. A man approached her and agreed to pay for sex. They talked about the matter while standing on the sidewalk next to the street. The man “appeared” intoxicated and complained that someone had tried to rip him off. A.W. testified she looked at the man in good lighting and saw his face. He was wearing a black shirt with decals, blue jeans, black steel-toed boots, and had a chain “with a lot of keys.”
A.W. testified the man refused to pay her up front, so she turned and walked away from him. The man suddenly punched her in the face and knocked her out. When she woke up, she found herself behind bushes on the side of some duplexes, in a dark area secluded from the street and sidewalk. She had no idea how she got there. The same man was on top of her, and he was having vaginal sex with her. Her pants had been removed. She told him, “Please don’t kill me.” When he finished, he got up and told her, “Don’t look back because I have a gun.” She felt blood dripping from her mouth. She ran away in a zigzag pattern because she was afraid that he would kill her. She ran to a nearby motel for help, and a friend carried her back to her house.
A.W. did not want to call the police because she had an outstanding warrant, but a relative called the paramedics because of A.W.’s injuries. The police also responded, and A.W. initially told the police that she was not a prostitute. Another officer recognized her from prior contacts, and she admitted she was a prostitute.
A.W. was taken to Kern Medical Center for treatment of her facial injuries. A nurse also conducted a sexual assault examination and took vaginal swabs to test for the presence of DNA evidence. A.W. told the nurse that the suspect was a Hispanic male in his 30’s, 5 feet 9 inches tall, 200 pounds, clean shaven, and with short black hair.
Counts IV, V & VI-N.R.
At 12:45 a.m. on June 1, 2002, Kern County Deputy Sheriff Marilao responded to a dispatch and contacted N.R. in the area near the El Paradiso bar on Edison Highway in Bakersfield. N.R. reported that she had been assaulted and raped. She had facial injuries and dried grass on her hair, and she appeared to have been drinking.
N.R. told Officer Marilao that she had been drinking at the bar and then started to walk home. N.R. said a man grabbed her from behind, forced her into a field, and raped her. As N.R. talked to the officer, she gave a slightly different version of her initial encounter with the suspect. N.R. said the man approached her from behind, grabbed her cell phone, ran to a field, and told her to come and get her cell phone if she wanted it. Officer Marilao asked N.R. how much she had to drink. N.R. initially said two beers, and then she said six beers.
N.R. told Officer Marilao that, once she was in the field with the man, the man hit her in the face with his fists three times. He used her sweat top to tie her hands behind her back and then threw her down on her back in the field. The man removed her pants and put her pants over her face. She felt the man perform vaginal sex, and he kept saying, “If you look at me, I’ll f… kill you.” When the man completed the sexual act, he ran away and left her in the field.
Officer Marilao testified “the common denominator” in N.R.’s account “was they ended up in the field, ” and the man tied her up, covered her face, and raped her. N.R. said the man was between 15 and 17 years old. N.R.’s facial injuries were consistent with her description of being punched.
N.R. was taken to the hospital, where she was treated for facial and back injuries. A nurse conducted a sexual assault examination, took vaginal swabs for possible DNA evidence, and also interviewed N.R. about the incident. N.R. told the nurse that the suspect was a Hispanic male, she did not know him, and the incident started shortly after midnight. N.R. said the assailant pinned her to the ground and punched her in the head and face. The assailant bound her wrists and ankles with her clothing, and said, “I’ll kill you if you uncover your face.” N.R. said she did not have sex with anyone else over the previous five days. She said she had been drinking that night, and gave conflicting answers about whether she also used drugs.
DNA Evidence
No one was initially arrested for committing the sexual assaults on either A.W. in 1998 or N.R. in 2002. Several years later, however, the Kern County laboratory received a grant to conduct “cold hit” DNA tests on evidence from unsolved sexual assault cases. The vaginal swabs collected from A.W. and N.R. were analyzed as part of the special grant program.
Brenda Smith, the supervising criminalist for the Kern County laboratory, testified about the “cold hit” program and the DNA tests on the evidence collected from A.W. and N.R. Smith did not conduct any of the DNA tests for these cases, but testified that she reviewed all the work that was performed on the DNA samples in these cases. Smith testified about the tests conducted by Vickie Beamer, a criminalist in the Kern County laboratory, based on her review of Beamer’s report about the results of those tests. By the time of trial, Beamer no longer worked for the Kern County laboratory and had moved to Arizona.
Smith testified that Beamer tested the vaginal swab taken from A.W. after the 1998 sexual assault. According to Beamer’s report, she compared the DNA taken from the vaginal swab to A.W.’s DNA reference sample. Beamer determined there was only one sperm donor on A.W.’s swab and she established a DNA profile for that sperm donor. The tests to establish A.W.’s DNA profile were conducted by another criminalist who did not testify in this case.
Smith testified that two vaginal swabs that were taken from N.R. after the 2002 sexual assault were also analyzed pursuant to the “cold hit” program, and a DNA profile was established for a sperm donor on those swabs. The DNA tests on N.R.’s swabs were conducted by Cellmark, a private laboratory in Maryland, because the Kern County laboratory was running out of time to test all the evidence from unsolved crimes within the “cold hit” grant period.
Smith testified the DNA profiles for the sperm donors on the A.W. and N.R. swabs were separately entered into CODIS, the “combined DNA index system” administered by the FBI. There was a “case-to-case hit” indicating the DNA profiles from the sperm donors in the A.W. and N.R. cases were from the same person, but there was no “hit” to identify a particular individual.
Smith testified that in April 2005, the sperm donor profiles compiled from the A.W. and N.R. swabs had a “hit” on a convicted offender in the CODIS system, and identified defendant as having the same DNA profile as the sperm donors identified in the two cases. Smith testified that once they matched the two DNA profiles to defendant, the Kern County laboratory conducted another DNA test on the remaining swab from N.R.’s case, and confirmed Cellmark’s DNA profile of the sperm donor. In September 2006, the Kern County laboratory compiled a DNA reference sample from defendant by using a cotton swab of his cheek cells and reconfirmed defendant’s DNA profile and that it matched the profiles in the A.W. and N.R. cases.
Smith testified that, based on the DNA profiles obtained from these tests, defendant was a contributor to the DNA on the vaginal swab taken from A.W. Smith testified that as to the sperm donor in A.W.’s case, approximately one in 1.3 sextillion people would have defendant’s particular DNA profile in the African-American population; one in 870 quadrillion people would have that profile in the Caucasian population; and one in 260 quadrillion people would have that profile in the Hispanic population.
As to N.R.’s case, Smith testified defendant was included “as the major contributor” of the DNA on the sperm from N.R.’s vaginal swab. Smith explained “there was a mixture” of sperm on N.R.’s swab. In N.R.’s case, one in 380 quadrillion people would have defendant’s DNA profile in the African-American population; one in 750 trillion people would have that profile in the Caucasian population; and one in 690 trillion people would have that profile in the Hispanic population.
On cross-examination, Smith testified that, based on the tests of N.R.’s vaginal swab, there were at least two sperm donors: a major sperm donor and a possible minor sperm donor. Smith testified that in A.W.’s case, the victim turned over a used condom when evidence was collected in 1998, but the condom was tested and there was no blood, semen, or trace evidence found on it. Also on cross-examination, defense counsel extensively questioned Smith about the protocols and procedures followed by the laboratory.
Kaci Wilson, a criminalist in the Kern County laboratory, also testified at trial. In February 2007, she conducted DNA tests on one of the vaginal swabs collected from N.R. Wilson knew that two of N.R.’s swabs had already been tested by Cellmark. Wilson testified that Beamer conducted the tests on defendant’s reference sample to determine his DNA profile. Darren Wright, another criminalist in the Kern County laboratory, conducted the tests on N.R.’s reference sample to determine her DNA profile.
Wilson testified about her comparison of the evidence from N.R.’s swab with the DNA reference profiles of N.R. and defendant:
“I made two conclusions regarding [N.R.’s] vaginal swab. One is for the epithelial cell fraction. And the epithelial cells are just the lining cells. They’re like skin cells. And that conclusion is that the DNA obtained from the epithelial cell fraction of the vag[inal] swab is almost exclusively single source. [N.R.] is included as a contributor of the major portion. [Defendant] cannot be excluded as a possible contributor to the minor portion.”
Wilson explained that most of the DNA present “in that portion of the DNA sample” was from N.R., and that defendant could not be excluded “as a possible contributor to that minor portion, ” which meant “that when I compared that evidence profile to his known reference sample, all his DNA types were present.”
Wilson testified she also developed a DNA profile based on the sperm fraction recovered from N.R.’s vaginal swab and determined there was a mixture of sperm. Wilson determined there were at least two sperm contributors, which meant more than one male contributed to the mixture of sperm. Wilson compiled DNA profiles for a major contributor and a minor contributor. She compared those profiles to the known DNA profiles of defendant and N.R. “The major DNA profile from that sperm fraction of [N.R.’s] vaginal swab... was a mixture of two people, but the major matched [defendant].” Wilson excluded N.R. and defendant as contributors of the minor portion of the DNA. One in 260 quadrillion people would have that profile in the Hispanic population, one in 870 quadrillion in the Caucasian population, and one in 1.3 sextillion in the African-American population.
The Victims’ Identifications of Defendant
In May 2005, Sergeant Michael Bonsness of the Kern County Sheriff’s Department showed A.W. a six-person photographic lineup which included defendant’s picture. Bonsness advised her that the suspect may or may not be in the lineup. Bonsness testified A.W. identified defendant “[p]retty quickly” as the man who assaulted and raped her.
Also in May 2005, Sergeant Bonsness showed N.R. a six-person photographic lineup that included defendant. As he showed N.R. the photographs, she was nervous, upset, and started crying. She did not identify anyone as the assailant. Bonsness testified his case file also contained a “subject detail record, ” which consisted of one large photograph of defendant with two smaller photographs below it. As Bonsness opened the case file to return the photographic lineup, N.R. saw the “subject detail record” with defendant’s photograph. Bonsness testified that N.R “pointed at it and said, ‘That’s the subject who raped me.’” Bonsness testified he did not intentionally show her that photograph.
Defense counsel repeatedly questioned Sergeant Bonsness about the circumstances under which N.R. saw the “subject detail record.” However, defense counsel did not move to exclude N.R.’s identification as the product of a suggestive identification procedure.
In February 2007, N.R. was interviewed about the 2002 incident by Patty Poeschel, an investigator with the district attorney’s office. N.R. was crying during the interview and she was reluctant to answer questions about the incident. N.R.’s son was present during the interview. Her son repeatedly encouraged N.R. to tell the truth but he did not answer any questions.
N.R.’s statement to Poeschel was consistent with, and expanded upon, her earlier account of the assault. She said the assailant grabbed a cell phone out of her hands and she protested. She tried to get the cell phone back from him, and he grabbed her by the arm. The man pulled her toward him and said he wanted to show her something, and she said no. The man threw her down on the ground, got on top of her, and pinned her down. The man tried to cover her eyes with his arms. As she struggled to get free, the man hit her twice and cut her eye. The man unzipped his pants and had vaginal intercourse with her.
Poeschel presented N.R. with a six-person photographic lineup that included defendant’s booking picture and asked N.R. if she could identify the perpetrator. N.R. hesitated, and N.R.’s son encouraged her to identify the person if she knew who it was. After several seconds, N.R. identified defendant as the man who assaulted and raped her.
The Victims’ Trial Testimony
At defendant’s trial in December 2008, A.W. testified she did not recognize defendant or anyone else in the courtroom as the man who sexually assaulted her. She could not remember what the man looked like or any of his facial characteristics.
By the time of trial, A.W. had been sober for eight years. She was no longer a prostitute, and was working as a substance abuse counselor and earning a college degree. She admitted that she had prior misdemeanor convictions for prostitution in 1999 and 2000 and a prior conviction for possession of crack cocaine for sale in 1996.
A.W. testified about the photographic lineup, and said the officer advised her that “some DNA came back and it was a match, and he wanted to know if I could identify the person.” A.W. testified that she selected defendant’s photograph and identified him as the Mexican male who raped her.
“Q. Was that the same person [in the lineup] that you contacted on [the street] that night?
“A. Yes.
“Q. Are you certain of that?
“A. Yes.”
However, A.W. also testified she told the police “that I wasn’t sure, and I picked him out, ” and “[i]t looked like him.”
On cross-examination, A.W. testified that in the hours prior to the sexual assault, she had already had sex with three people for money, but she could not remember their identities. A.W. admitted she drank and smoked crack on a daily basis when she was a prostitute, and she probably used both substances in the hours before the assault. However, A.W. testified she was not drunk that day, and she remembered everything about the sexual assault because it was so traumatic.
Also on cross-examination, A.W. could not remember whether she told the police that she had been drinking and smoking crack earlier that night with someone she only identified as “Aaron.” A.W. insisted she was only assaulted by the Mexican male, and neither Aaron nor anyone else hit her earlier that night.
At trial, N.R. testified she did not know or remember anything about any type of sexual assault, and she did not remember giving any prior statements about such an incident.
V.M. and the 2004 Incident
In addition to evidence about the charged offenses, the trial court permitted the prosecution to introduce the following evidence that defendant committed another sexual assault on V.M. in an unrelated case. The court found the evidence was admissible pursuant to section 1108 and section 1101, subdivision (b).
The court instructed the jury on the limited admissibility of this evidence. In issues II and III, we will address defendant’s contentions that the court erroneously admitted this evidence under sections 1108 and 1101.
V.M. testified that around 1:00 a.m. on May 1, 2004, she was walking on Flower Street and heading to the apartment of her friend, A.R., on Quincy Street in Bakersfield. Defendant approached and started talking to her. Defendant asked where she was going, and she said that she was going to A.R.’s apartment. Defendant said he was also going to A.R.’s apartment and asked to walk with her, and she said yes. When they arrived at the apartment, V.M. asked defendant to go upstairs and check if A.R. was home so she could avoid A.R.’s father. Defendant went upstairs while V.M. waited downstairs. Defendant rejoined V.M. and said A.R. was there and for her to go upstairs. Defendant walked up the steps ahead of her.
When they reached the apartment, the door was open and it was very quiet inside. V.M. was suspicious and realized no one was home. She accused defendant of lying to her and started to walk out of the apartment. Defendant pushed her onto the sofa and slammed the apartment door. V.M. tried to get up, but defendant socked her in the mouth and she started to bleed. Defendant removed her shorts and underwear against her will. Defendant also removed his shorts, and tried to get on top of her and have sex. V.M. kept her legs tightly together and defendant kept trying to pull her legs apart. V.M. was screaming and tried to get him off of her. Defendant said he would kill her if she kept screaming and said he wanted to “f…” her. V.M. stopped fighting so he would not hurt her anymore. Defendant tried to have intercourse but was not successful, and he eventually gave up.
V.M. tried to walk out of the apartment but defendant punched her again. V.M. fell face down on the sofa. Defendant tried to penetrate her from behind but he was not successful. Defendant put a pillow over her face and told her, “Just shut the f… up or I’ll kill you.”
Defendant made V.M. turn around and sit on the couch. He again tried to perform vaginal sex but he was not successful. He took V.M.’s underwear, shorts, and purse. He picked up a cell phone that was on the floor and walked out of the apartment.
V.M. found some clothes in the apartment, got dressed, and ran downstairs to look for defendant. She followed him at a distance and watched him go to a nearby house. She went to a store, called the police from the pay telephone, and directed the police to defendant’s location. Later that night, she identified defendant as the man who attacked her in the apartment. She suffered a large cut on her lip from being punched. V.M. admitted she had a prior conviction for auto theft. Defendant later pleaded no contest to assault with intent to commit rape on V.M.
DISCUSSION
I. Admission of DNA Evidence
Defendant contends the DNA evidence in this case constituted inadmissible hearsay, and the admission of the evidence violated his Sixth Amendment right to confront and cross-examine witnesses, based on Melendez-Diaz v. Massachusetts (2009) 557 U.S. ____ [129 S.Ct. 2527] (Melendez-Diaz). Defendant acknowledges that defense counsel did not object to this evidence, but contends any objection would have been futile in light of existing authority from the California Supreme Court at the time of his trial, People v. Geier (2007) 41 Cal.4th 555 (Geier).
We will find that defense counsel made the tactical decision not to raise any Sixth Amendment objections to the DNA evidence in this case. We will also find that Melendez-Diaz has not overruled Geier. In addition, we will find that, in contrast to Melendez-Diaz, the prosecution presented the testimony of criminalists who were subject to cross-examination as to the scientific protocols used in the DNA tests conducted in this case.
A. Background
During the pretrial motions, defense counsel sought to introduce evidence of the prior sexual histories of A.W. and N.R. Counsel argued evidence of A.W.’s sexual activities was relevant because she was a prostitute and she told an officer that she had argued with another man that night. Counsel argued the evidence would show that she was beaten by another man and she was not raped. As to N.R., counsel argued her prior sexual conduct was relevant because “when the DNA testing was done on her vaginal swabs, they found that there were at least three, if not more, male donors that had deposited inside of [N.R.]. So I believe that that is also relevant as to how that substance became part of her.” Counsel further asserted, “the reason that we’re bringing it up is because of the fact that [defendant] is here because of the DNA hits, ” and the DNA evidence showed N.R. may have had other sexual partners that night. The prosecutor objected to the introduction of such evidence.
The court held defendant could impeach A.W. with her prior convictions for prostitution and that she solicited her assailant for sex. The court also held that defendant could establish there were other DNA fluids on N.R.’s vaginal swab, but that evidence did not mean N.R.’s sexual history was “fair game in any situation where rape is being charged.”
The prosecutor next moved to introduce the DNA evidence and the reports prepared by the criminalists pursuant to the business records exception to the hearsay rule. Defense counsel stated: “[W]e’re not going to have any objection to DNA evidence coming in at this trial. They can bring it all.” The court asked for clarification, and defense counsel again stated he was aware of the prosecution’s DNA motion “and we’re not opposing.” The court granted the prosecution’s motion to introduce DNA evidence and the criminalists’ reports.
As set forth ante, the prosecution introduced the DNA evidence through the testimony of Brenda Smith, the supervising criminalist who did not perform any DNA tests for this case, and Kaci Wilson, a criminalist who conducted the DNA tests on the evidence taken from N.R. Smith and Wilson also testified about DNA tests performed by other criminalists on reference samples from defendant and the victims and on the evidence taken from the victims.
B. Crawford, Geier, and Melendez-Diaz
Defendant contends the prosecution’s DNA evidence was testimonial within the meaning of Crawford v. Washington (2004) 541 U.S. 36 (Crawford), and his Sixth Amendment rights were violated because Smith, the supervising criminalist, did not conduct any of the DNA tests. Moreover, Wilson, the testing criminalist, conducted tests on only one of the vaginal swabs from N.R.; and criminalists who conducted the DNA tests on the reference samples and other swabs did not testify.
The confrontation clause of the Sixth Amendment to the United States Constitution provides that “[i]n all criminal prosecutions, the accused shall enjoy the right... to be confronted with the witnesses against him.” (U.S. Const., 6th Amend.) The admission of an unavailable witness’s out-of-court statements against a criminal defendant was previously governed by Ohio v. Roberts (1980) 448 U.S. 56 (Roberts), which held that such statements could be admitted consistent with the confrontation clause only when the evidence fell within “a firmly rooted hearsay exception” or the statements contained “particularized guarantees of trustworthiness” such that adversarial testing would add little to the statements’ reliability. (Id. at p. 66.)
In Crawford, supra, 541 U.S. 36, the United States Supreme Court repudiated Roberts and held testimonial out-of-court statements offered against a criminal defendant are inadmissible under the Sixth Amendment unless the witness is unavailable to testify and the defendant had a prior opportunity for cross-examination. (Id. at pp. 59, 68.) Where nontestimonial hearsay is at issue, evidence is exempt “from Confrontation Clause scrutiny altogether” and may be admitted pursuant to hearsay law. (Id. at p. 68.)
Crawford left “for another day any effort to spell out a comprehensive definition of ‘testimonial, ’” but held that “[w]hatever else the term covers, it applies at a minimum to prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and to police interrogations. These are the modern practices with closest kinship to the abuses at which the Confrontation Clause was directed.” (Crawford, supra, 541 U.S. at p. 68.)
The erroneous admission of statements in violation of a defendant’s Sixth Amendment rights is subject to a harmless error analysis under Chapman v. California (1967) 386 U.S. 18, 24. (Delaware v. Van Arsdall (1986) 475 U.S. 673, 681.)
In Davis v. Washington (2006) 547 U.S. 813 (Davis), the court expanded upon Crawford and offered the following explanation of testimonial statements under the Sixth Amendment:
“Statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.” (Id. at p. 822.)
Davis relied upon and applied these distinctions to two factual situations to determine “when statements made to law enforcement personnel during a 911 call or at a crime scene are ‘testimonial’ and thus subject to the requirements of the Sixth Amendment’s Confrontation Clause.” (Davis, supra, 547 U.S. at p. 817.) Davis held the tape recording of a domestic disturbance victim’s telephone call to a 911 operator was admissible and not testimonial under Crawford, even though the 911 operator asked the victim questions about the incident, because a 911 call “is ordinarily not designed primarily to ‘establis[h] or prov[e]’ some past fact, but to describe current circumstances requiring police assistance.” (Davis, supra, at pp. 827, 817-819.) The victim on the 911 call was “speaking about events as they were actually happening, rather than ‘describ[ing] past events’... [citation].” (Id. at p. 827.) In contrast, Davis held that in the companion case a domestic violence victim’s statements to police officers, given in the course of their investigation, were testimonial and inadmissible in the absence of the victim’s trial testimony, because the victim spoke to officers about the assault after the incident happened, she gave her statements to the officers as part of an investigation into possible past criminal conduct, there was no emergency in progress, and there was no immediate threat to the victim. (Id. at pp. 829-830, 819-821.)
In Geier, supra, 41 Cal.4th 555, the California Supreme Court held an expert could testify about the results of DNA tests, even if that expert did not conduct the actual tests, without violating Crawford and the defendant’s Sixth Amendment rights. The prosecution’s expert in Geier was the laboratory director for an accredited private laboratory that performed DNA tests for both the prosecution and defense, and the director reviewed the work performed by the analyst who conducted the actual tests. The defendant objected to the expert’s testimony and argued the evidence violated his Sixth Amendment rights because the expert did not conduct the tests. (Geier, supra, at pp. 593-596.)
Geier reviewed Crawford and Davis as to the determination of whether a statement is testimonial under the Sixth Amendment and held: “[W]hat we extract from those decisions is that a statement is testimonial if (1) it is made to a law enforcement officer or by or to a law enforcement agent and (2) describes a past fact related to criminal activity for (3) possible use at a later trial. Conversely, a statement that does not meet all three criteria is not testimonial.” (Geier, supra, 41 Cal.4th at p. 605.)
Based on this interpretation, Geier held the circumstances under which the testing analyst prepared the DNA report meant such evidence was not testimonial under Crawford and Davis. (Geier, supra, 41 Cal.4th at p. 607.) Geier held the report was not testimonial because it contained the analyst’s observations as she actually performed the tests and thus constituted “a contemporaneous recordation of observable events rather than the documentation of past events.” (Id. at p. 605, italics added.) Geier acknowledged the DNA report was requested by a police agency and the laboratory’s employees were paid for their work as part of a government investigation. (Ibid.) However, Geier held “‘the proper focus [about whether an out-of-court statement is testimonial] is not on the mere reasonable chance that an out-of-court statement might later be used in a criminal trial.’ [Citations.]” (Ibid.)
“In our view, under Davis, determining whether a statement is testimonial requires us to consider the circumstances under which the statement was made. As we read Davis, the crucial point is whether the statement represents the contemporaneous recordation of observable events.” (Id. at p. 607, italics added.)
Geier held the analyst’s notes were admissible because they “were made ‘during a routine, non-adversarial process meant to ensure accurate analysis.’ [Citations.] In simply following [the laboratory’s] protocol of noting carefully each step of the DNA analysis, recording what she did with each sample received, [the analyst] did not ‘bear witness’ against defendant. [Citation.] Records of laboratory protocols followed and the resulting raw data acquired are not accusatory. ‘Instead, they are neutral, having the power to exonerate as well as convict.’ [Citation.]” (Geier, supra, 41 Cal.4th at p. 607.) In the alternative, Geier held that even if the testifying expert’s reliance on the DNA report violated the defendant’s Sixth Amendment rights, any error was harmless given other evidence that clearly connected the defendant to the crime. (Id. at p. 608.)
In Melendez-Diaz, a case decided after defendant was convicted but while the instant appeal was pending, the United States Supreme Court held that documentary evidence stating that certain contraband tested positive for cocaine constituted “testimonial” evidence and was inadmissible in the absence of the trial testimony of the analysts who performed such tests, pursuant to the confrontation clause of the Sixth Amendment. (Melendez-Diaz, supra, 557 U.S. at p. ___ [129 S.Ct. at p. 2532].) The petitioner was found in possession of bags containing a substance that resembled cocaine. (Id. at p. ___ [129 S.Ct. at p. 2530].) The prosecution introduced three notarized “certificates of analysis” which showed the results of forensic analysis performed on the seized substances. The certificates reported the weight of the seized bags and that the substances were examined and found to contain cocaine. The certificates complied with state law and were sworn to before a notary public by analysts from the state’s crime laboratory, but no analysts testified at trial. (Id. at pp. ____ [129 S.Ct. at pp. 2530-2531].) The petitioner objected to the certificates and argued the evidence was testimonial and violated his Sixth Amendment rights under Crawford, but the trial court overruled the objection and held the analysts who tested the contraband were not required to appear at trial. (Id. at p. ___ [129 S.Ct. at p. 2531].)
Melendez-Diaz held the admission of the certificates, in the absence of the trial testimony of the analysts who tested the contraband, violated petitioner’s Sixth Amendment rights because there was “little doubt” the certificates fell “within the ‘core class of testimonial statements’” subject to the Sixth Amendment restrictions described in Crawford. (Melendez-Diaz, supra, 557 U.S. at p. ___ [129 S.Ct. at p. 2532].) “The ‘certificates’ are functionally identical to live, in-court testimony, doing ‘precisely what a witness does on direct examination.’ [citation.]” (Ibid.) While state law described the documents as “‘certificates, ’” Melendez-Diaz held they were “quite plainly affidavits” and “‘“made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial.”’ [Citation.]” (Ibid.) Moreover, the “sole purpose” of the affidavits under state law “was to provide ‘prima facie evidence of the composition, quality, and the net weight’ of the analyzed substance [citation].” (Ibid.)
Melendez-Diaz noted that its decision “involved little more than the application of our holding in Crawford.” (Melendez-Diaz, supra, 557 U.S. at p. ___ [129 S.Ct. at p. 2542].) “In short, under our decision in Crawford the analysts’ affidavits were testimonial statements, and the analysts were ‘witnesses’ for purposes of the Sixth Amendment. Absent a showing that the analysts were unavailable to testify at trial and that petitioner had a prior opportunity to cross-examine them, petitioner was entitled to ‘“be confronted with”’ the analysts at trial. [Citation.]” (Id. at p. ___ [129 S.Ct. at p. 2532].) Melendez-Diaz noted the affidavits submitted by the analysts “contained only the bare-bones statement that ‘[t]he substance was found to contain: Cocaine.’ [Citations.] At the time of trial, petitioner did not know what tests the analysts performed, whether those tests were routine, and whether interpreting their results required the exercise of judgment or the use of skills that the analysts may not have possessed.” (Id. at p. ___ [129 S.Ct. at p. 2537].)
Melendez-Diaz maintained that it was not holding that “anyone whose testimony may be relevant in establishing the chain of custody, authenticity of the sample, or accuracy of the testing device, must appear in person as part of the prosecution’s case, ” or that “everyone who laid hands on the evidence must be called.” (Melendez-Diaz, supra, 557 U.S. at p. ___ [129 S.Ct. at p. 2532], fn. 1.) The court explained that “‘gaps in the chain [of custody] normally go to the weight of the evidence rather than its admissibility.’ It is up to the prosecution to decide what steps in the chain of custody are so crucial as to require evidence; but what testimony is introduced must (if the defendant objects) be introduced live. Additionally, documents prepared in the regular course of equipment maintenance may well qualify as nontestimonial records. [Citation.]” (Ibid., first italics in original, second italics added.)
Justice Scalia’s plurality opinion in Melendez-Diaz was joined by three other justices. Justice Thomas filed a short concurring opinion, which stated that he joined the court’s opinion “because the documents at issue in this case ‘are quite plainly affidavits, ’ [citation]. As such, they ‘fall within the core class of testimonial statements’ governed by the Confrontation Clause. [Citation.]” (Melendez-Diaz, supra, 557 U.S. at p. ___ [129 S.Ct. at p. 2543] (conc. opn. of Thomas, J.).
The four dissenting justices in Melendez-Diaz complained the majority swept away “an accepted rule governing the admission of scientific evidence” that had been in existence for at least 90 years, whereas Crawford and Davis said “nothing about forensic analysts....” (Melendez-Diaz, supra, 557 U.S. at p. ___ [129 S.Ct. at p. 2543] (dis. opn. of Kennedy, J.).) The dissent concluded that Crawford’s definition of testimonial evidence should be limited to “conventional” witnesses who have “personal knowledge of some aspect of the defendant’s guilt....” (Ibid.)
At the time the United States Supreme Court decided Melendez-Diaz, a petition for writ of certiorari in Geier was pending before the court. The court denied certiorari in Geier, without comment, four days after deciding Melendez-Diaz. (Geier v. California (2009) ___ U.S. ___ [129 S.Ct. 2856].)
C. Competing Views of Melendez-Diaz
The potential conflict between Melendez-Diaz and Geier is currently pending before the California Supreme Court, which has granted petitions for review in a series of appellate decisions that reached different conclusions on the issue. (See People v. Rutterschmidt (2009) 98 Cal.Rptr.3d 390, review granted Dec. 2, 2009, S176213 [Melendez-Diaz did not overrule Geier ]; People v. Gutierrez (2009) 99 Cal.Rptr.3d 369, review granted Dec. 2, 2009, S176620 [Melendez-Diaz did not overrule Geier]; cf. People v. Lopez (2009) 98 Cal.Rptr.3d 825, review granted Dec. 2, 2009, S177046 [Melendez-Diaz overruled Geier]; People v. Dungo (2009) 98 Cal.Rptr.3d 702, review granted Dec. 2, 2009, S176886 [Melendez-Diaz overruled Geier]; People v. Bowman (2010) 107 Cal.Rptr.3d 156, review granted June 9, 2010, S182172 [Melendez-Diaz did not overrule Geier]; but see People v. Vargas (2009) 178 Cal.App.4th 647, 660 [victim’s statements to nurse conducting sexual assault examination were testimonial and inadmissible in the absence of victim’s trial appearance].)
One of the cases currently pending before the California Supreme Court is particularly noteworthy because of the court’s limited grant of review. In People v. Rutterschmidt, supra, 98 Cal.Rptr.3d 390, the Second District, Division Five, addressed contentions raised by two codefendants, Rutterschmidt and Golay, as to whether Melendez-Diaz overruled Geier. Melendez-Diaz had not been decided at the time of the defendants’ joint jury trial. The trial court admitted the testimony of a toxicology expert about tests conducted on a homicide victim, but that expert did not conduct the actual tests. At trial, Golay raised a Sixth Amendment objection but Rutterschmidt did not object.
On appeal, both defendants argued the expert’s testimony violated the Sixth Amendment and Melendez-Diaz, which was decided after the defendants were convicted. The court held one defendant, Rutterschmidt, failed to preserve the Sixth Amendment issue for appellate review because she did not raise a confrontation clause objection to the evidence during trial, whereas the defendant in Melendez-Diaz raised a timely Sixth Amendment objection to the introduction of the certificates in that case. In addition, the court found there were no extraordinary circumstances to excuse Rutterschmidt’s failure to raise a confrontation clause objection at trial, and declined to address her Sixth Amendment contentions on appeal. (People v. Rutterschmidt, supra, 98 Cal.Rptr.3d 390 at pp. 408, 410, 412 & fn. 13.) The court also rejected defendant Rutterschmidt’s belated attempt to argue that defense counsel was ineffective for failing to object, because she did not raise the ineffective assistance claim in her opening brief on appeal and only raised it for the first time in her reply brief. (Id. at p. 410 & fn. 12.) In contrast, the court held that codefendant Golay preserved the Melendez-Diaz issue for appellate review because she made a Sixth Amendment objection when the toxicology evidence was introduced at trial. The court ultimately held that Melendez-Diaz did not overrule Geier.
Both defendants in Rutterschmidt filed petitions for review and argued Melendez-Diaz overruled Geier. The California Supreme Court granted defendant Golay’s petition for review on the Sixth Amendment issue. However, the court denied without comment the petition for review filed by codefendant Rutterschmidt, who had failed to make a Sixth Amendment objection at trial or a timely ineffective assistance argument on appeal. (People v. Rutterschmidt, (2009) 102 Cal.Rptr.3d 281.)
D. Defendant’s Failure to Object
Defendant contends that, as in Melendez-Diaz, his Sixth Amendment rights were violated in this case because the prosecution’s DNA evidence was testimonial, the supervising criminalist who testified did not conduct any of the tests, the other testifying criminalist only conducted one of the DNA tests, and the other criminalists who performed DNA tests on the swabs and reference samples did not testify and were not subject to cross-examination.
It is undisputed, however, that defendant declined to raise a Sixth Amendment objection to the testimony from Smith and Wilson about the DNA evidence. As explained ante, when the prosecution moved to introduce the DNA evidence, defense counsel stated: “[W]e’re not going to have any objection to DNA evidence coming in at this trial. They can bring it all.” The court asked for clarification, and defense counsel again stated he was aware of the prosecution’s DNA motion “and we’re not opposing.” “‘No procedural principle is more familiar to this Court than that a constitutional right, ’ or a right of any other sort, ‘may be forfeited in criminal as well as civil cases by the failure to make timely assertion of the right before a tribunal having jurisdiction to determine it.’ [Citation.]” (United States v. Olano (1993) 507 U.S. 725, 731.) A claim that the introduction of evidence violated the defendant’s rights under the confrontation clause must be timely asserted at trial or it is waived on appeal. (People v. Lewis and Oliver (2006) 39 Cal.4th 970, 1028, fn. 19; People v. Burgener (2003) 29 Cal.4th 833, 869; People v. Catlin (2001) 26 Cal.4th 81, 138, fn. 14; People v. Mitcham (1992) 1 Cal.4th 1027, 1044 [failure to object waives appellate review of alleged error based on Bruton v. United States (1968) 391 U.S. 123 and People v. Aranda (1965) 63 Cal.2d 518]; People v. Chaney (2007) 148 Cal.App.4th 772, 777-779.)
We find defendant waived a Sixth Amendment objection in this case. Melendez-Diaz itself specifically addressed the defendant’s obligation to preserve review of confrontation clause issues, and held “[t]he defendant always has the burden of raising his Confrontation Clause objection.” (Melendez-Diaz, supra, 557 U.S. at p. ___ [129 S.Ct. at p. 2541].) Melendez-Diaz further held that “[t]he right to confrontation may, of course, be waived, including by failure to object to the offending evidence.” (Id. at p. ___ [129 S.Ct. at p. 2534], fn. 3.) “It is up to the prosecution to decide what steps in the chain of custody are so crucial as to require evidence; but what testimony is introduced must (if the defendant objects) be introduced live.” (Id. at p. ___ [129 S.Ct. at p. 2532], fn. 1, first italics in original, second italics added.)
“Over the years, cases have used the word [waiver] loosely to describe two related, but distinct, concepts: (1) losing a right by failing to assert it, more precisely called forfeiture; and (2) intentionally relinquishing a known right. ‘[T]he terms “waiver” and “forfeiture” have long been used interchangeably. The United States Supreme Court recently observed, however: “Waiver is different from forfeiture. Whereas forfeiture is the failure to make the timely assertion of a right, waiver is the ‘intentional relinquishment or abandonment of a known right.’ [Citations.]” (United States v. Olano [(1993) 507 U.S. 725, 733... ].)’ (People v. Saunders (1993) 5 Cal.4th 580, 590, fn. 6....)” (Cowan v. Superior Court (1996) 14 Cal.4th 367, 371.)
Defendant argues that his failure to object should be excused because Geier was the controlling precedent at the time of his trial, and any objection to the DNA evidence would have been futile because the trial court would have been bound by Geier. At the time of defendant’s December 2008 trial (CT 287), Crawford and Davis had been decided, and Geier was the controlling authority in this state as to the application of Crawford to laboratory test results. However, Geier itself noted a division among state courts as to the application of Crawford to scientific evidence. (Geier, supra, 41 Cal.4th at pp. 604-607.) Moreover, a petition for writ of certiorari in Geier was pending before the United States Supreme Court at the time of defendant’s trial. (Geier v. California, supra, ___ U.S. ___ [129 S.Ct. 2856] [petition for writ of certiorari filed on Nov. 21, 2007, denied on June 29, 2009].)
We note that Crawford was retroactively applied to cases that were pending on direct appeal when it was decided, because it repudiated Roberts and announced a new rule on the effect of the confrontation clause on hearsay statements. (See, e.g., Schriro v. Summerlin (2004) 542 U.S. 348, 351; Griffith v. Kentucky (1987) 479 U.S. 314, 328; People v. Cage (2007) 40 Cal.4th 965, 970; People v. Sisavath (2004) 118 Cal.App.4th 1396, 1400; cf. Whorton v. Bockting (2007) 549 U.S. 406, 409, 421 [Crawford not retroactive to cases on collateral review].) A defendant who failed to raise a Sixth Amendment trial objection prior to the decision in Crawford did not waive review of the issue on direct appeal, since the United States Supreme Court’s opinion in Roberts was the “governing law at the time” and “afforded scant grounds for objection. [Citation.]” (People v. Johnson (2004) 121 Cal.App.4th 1409, 1411, fn. 2.)
Defendant’s extension of this argument to Melendez-Diaz, however, lacks merit based on the Supreme Court’s own characterization of its ruling. Crawford announced that Roberts had been overruled and the “sufficient indicia of reliability” test abandoned. Davis clarified aspects of Crawford and further defined “testimonial” hearsay. In contrast, Melendez-Diaz repeatedly emphasized its holding was not new, that it was “faithfully applying Crawford to the facts of this case, ” and rejected the dissent’s assertion that it was “overruling 90 years of settled jurisprudence. It is the dissent that seeks to overturn precedent by resurrecting Roberts a mere five years after it was rejected in Crawford.” (Melendez-Diaz, supra, 557 U.S. at p. ___ [129 S.Ct. at p. 2533].)
Melendez-Diaz specifically stated that its ruling “involves little more than the application of our holding” in Crawford. (Melendez-Diaz, supra, 557 U.S. at p. ___ [129 S.Ct. at p. 2542].) “[U]nder our decision in Crawford the analysts’ affidavits were testimonial statements, and the analysts were ‘witnesses’ for purposes of the Sixth Amendment, ” and there was “little doubt that the documents at issue” fell within “the ‘core class of testimonial statements’” described in Crawford. (Id. at p. ___ [129 S.Ct. at p. 2532].)
Melendez-Diaz thus leads to the conclusion that defendant’s failure to raise a Sixth Amendment objection to the admission of the DNA evidence necessarily waived review of the confrontation clause issue in this case.
Defendant does not raise an alternative ineffective assistance argument based on counsel’s failure to object, perhaps because the record indicates defense counsel made a tactical decision not to object. The failure to object is considered a matter of trial tactics “as to which we will not exercise judicial hindsight. [Citation.]” (People v. Kelly (1992) 1 Cal.4th 495, 520.) We defer to counsel’s tactical decisions in examining ineffective assistance claims and there is a “strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action ‘might be considered sound trial strategy.’ [Citation].” (Strickland v. Washington (1984) 466 U.S. 668, 689; People v. Lucas (1995) 12 Cal.4th 415, 436-437.) “‘Reviewing courts will reverse convictions on the ground of inadequate counsel only if the record on appeal affirmatively discloses that counsel had no rational tactical purpose for his act or omission.’ [Citation.]” (People v. Zapien (1993) 4 Cal.4th 929, 980.)
The record strongly suggests defense counsel made the tactical decision not to object to the DNA evidence because of the nature of the prosecution’s evidence from the two victims. A.W. identified defendant from the photographic lineup, the DNA evidence showed there was only one sperm donor on her vaginal swab, and defendant matched the DNA profile. In contrast, N.R. was unable to identify defendant from the first photographic lineup but identified him when she inadvertently saw the larger photograph in the case file. N.R. again identified defendant from a subsequent photographic lineup. The DNA evidence from N.R.’s vaginal swab showed there were at least two sperm donors-a major and a minor contributor-and defendant’s DNA matched the major contributor. It can be inferred from the record that counsel relied on the mixture of DNA from N.R.’s vaginal swab to undermine the credibility of her photographic identification of defendant.
E. Melendez-Diaz Did Not Overrule Geier
Even if defense counsel’s failure to object did not waive the Sixth Amendment issue or counsel was ineffective for failing to object, we find counsel’s omission was not prejudicial because Melendez-Diaz did not overrule Geier. There are important distinctions between the cases. Geier relied on Davis and held that an expert could testify about the results of DNA tests, even if that expert did not conduct the actual tests, without violating the defendant’s Sixth Amendment rights. In doing so, Geier explained “the crucial point” in Davis, in determining whether evidence is testimonial, is “whether the statement represents the contemporaneous recordation of observable events.” (Geier, supra, 41 Cal.4th at p. 607.) Geier held the DNA report prepared in that case was admissible and not testimonial because it contained the analyst’s observations as she actually performed the tests, and thus constituted “a contemporaneous recordation of observable events rather than the documentation of past events.” (Id. at p. 605.) In addition, in Geier, the supervisor of the analyst who conducted the DNA tests and prepared the report testified and was available for cross-examination as to the nature of the tests and review of the analyst’s work. (Id. at pp. 593-596.)
We address defendant’s Sixth Amendment argument assuming, without deciding, that Melendez-Diaz may be applied retroactively to this case.
In contrast, Melendez-Diaz held the defendant’s Sixth Amendment rights were violated in that case because of the admission of “certificates of analysis” (Melendez-Diaz, supra, 557 U.S. at pp. [129 S.Ct. at pp. 2530-2531]) containing “only the bare-bones statement” that the contraband at issue consisted of cocaine. (Id. at p. ___ [129 S.Ct. at p. 2536].) The certificates were “quite plainly affidavits” that fell “within the ‘core class of testimonial statements’” subject to the Sixth Amendment restrictions described in Crawford, and were “functionally identical to live, in-court testimony, doing ‘precisely what a witness does on direct examination.’ [Citation.]” (Id. at p. ___ [129 S.Ct. at p. 2532].) No witness testified or was subject to cross-examination in Melendez-Diaz about any aspects of the tests conducted on the contraband, and there was absolutely no evidence introduced about “what tests the analysts performed, whether those tests were routine, and whether interpreting their results required the exercise of judgment or the use of skills that the analysts may not have possessed.” (Id. at p. ___ [29 S.Ct. at p. 2537].) These points were crucial in Melendez-Diaz because even though the laboratories purportedly used “‘methodology recommended by the Scientific Working Group for the Analysis of Seized Drugs, ’....[a]t least some of that methodology requires the exercise of judgment and presents a risk of error that might be explored on cross-examination. [Citations.]” (Id. at pp. _____ [129 S.Ct. at pp. 2537-2538].) Moreover, Melendez-Diaz acknowledged Davis’s distinction between contemporaneous and near-contemporaneous statements, and found it “doubtful” that the analyst’s reports in Melendez-Diaz “could be characterized as reporting ‘near-contemporaneous observations’” because the affidavits “were completed almost a week after the tests were performed.” (Id. at p. ___ [129 S.Ct. at p. 2535].) We believe these are crucial distinctions in the court’s analysis of testimonial statements, and that Melendez-Diaz did not undermine Geier’s reliance on Davis.
The instant case is also distinguishable from Melendez-Diaz because the prosecution’s evidence about the results of the DNA tests was not introduced through a bare affidavit or certificate. Instead, Smith, the supervising criminalist, testified at trial and was subject to cross-examination as to the nature of the tests conducted by Beamer and the other criminalists in the laboratory. Smith had personal knowledge about the types of DNA tests conducted on the samples and explained the laboratory’s protocols for conducting such tests. In contrast to Melendez-Diaz, Smith and Wilson also testified as to the chain of custody of the DNA evidence, the type of tests performed, and the steps involved in the testing process. Smith conducted her own independent review of the work performed by the other criminalists as part of her supervisorial duties, such that defendant was well-aware “what tests the analysts performed, whether those tests were routine, and whether interpreting their results required the exercise of judgment or the use of skills that the analysts may not have possessed.” (Melendez-Diaz, supra, 557 U.S. at p. ___ [129 S.Ct. at p. 2537].) In addition, Smith’s testimony was based on Beamer’s report about her tests, and were thus a “contemporaneous recordation of observable events rather than the documentation of past events.” (Geier, supra, 41 Cal.4th at p. 605.)
We also believe that to the extent that some aspects of Justice Scalia’s four-vote plurality opinion in Melendez-Diaz may raise questions about the holding in Geier, it is necessarily tempered by Justice Thomas’s concurrence, which supplied the necessary fifth vote. Justice Thomas’s concurring opinion in Melendez-Diaz was based upon his concurring and dissenting opinion in Davis, and expressed his limited view that testimonial evidence consisted of extrajudicial statements “‘only insofar as they are contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions.’ [Citations.]” (Melendez-Diaz, supra, 557 U.S. at p. ___ [129 S.Ct. at p. 2543] (conc. opn. of Thomas, J.).) In the face of a strong dissent by four justices, Justice Thomas joined Justice Scalia’s opinion in Melendez-Diaz only because “the documents at issue in this case ‘are quite plainly affidavits, ’” and fell within “‘the core class of testimonial statements’ governed by the Confrontation Clause. [Citation.]” (Ibid., (conc. opn. of Thomas, J.).) Justice Thomas did not join in the wide-ranging statements in Justice Scalia’s opinion that may appear to undermine Geier.
“When a fragmented Court decides a case and no single rationale explaining the result enjoys the assent of five Justices, ‘the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds....’ [Citation.]” (Marks v. United States (1977) 430 U.S. 188, 193; see also Panetti v. Quarterman (2007) 551 U.S. 930, 949; Del Monte v. Wilson (1992) 1 Cal.4th 1009, 1023.) While the opinion in Melendez-Diaz may not be “fragmented, ” Justice Thomas supplied the “decisive” fifth vote and he concurred on grounds narrower than those put forth by the plurality. (See, e.g., United States v. Brown (5th Cir. 2008) 553 F.3d 768, 783.) As a result, his position takes on heightened significance in interpreting Melendez-Diaz and may be considered controlling. (See, e.g., Romano v. Oklahoma (1994) 512 U.S. 1, 9; People v. Rios (2009) 179 Cal.App.4th 491, 501-503; Tily B., Inc. v. City of Newport Beach (1998) 69 Cal.App.4th 1, 16; Blanco v. Baxter Healthcare Corp. (2008) 158 Cal.App.4th 1039, 1050, fn. 7.)
We thus conclude that even if defense counsel had not waived review of the Sixth Amendment issue, and counsel was ineffective for failing to object, any error is not prejudicial because Melendez-Diaz did not overrule Geier.
F. Harmless Error
Finally, even if we were to find that admission of the DNA evidence violated defendant’s Sixth Amendment rights, we would conclude that any error was harmless beyond a reasonable doubt. “Confrontation clause violations are subject to federal harmless-error analysis under Chapman v. California (1967) 386 U.S. 18, 24. [Citation.]” (Geier, supra, 41 Cal.4th at p. 608.) The question is whether we can find, beyond a reasonable doubt, “that the jury verdict would have been the same absent any error. [Citations.]” (People v. Harrison (2005) 35 Cal.4th 208, 239.)
We find any error is harmless in this case. In May 2005, Sergeant Bonsness separately showed photographic lineups to A.W. and N.R. A.W. identified defendant from the photographic lineup as the man who raped her. N.R. was unable to identify anyone from the photographic lineup, but identified defendant when she inadvertently saw his photograph in Bonsness’s case file. In February 2007, Poeschel, the district attorney’s investigator, interviewed N.R. about the sexual assault. N.R. was crying and upset during the entire interview, and her son encouraged her to answer the questions and tell the truth. When Poeschel showed N.R. a six-person photographic lineup, N.R. identified defendant as the man who raped her.
Defendant argues that any error in admitting the DNA evidence was not harmless because neither A.W. nor N.R. could identify defendant at trial, and their descriptions of the suspect failed to match his actual age at the time of the sexual assaults. Defendant would have been 24 years old when A.W. was assaulted, but A.W. said the suspect was in his 30’s. Defendant would have been 28 years old when N.R. was assaulted, but N.R. said the suspect was between 15 and 17 years old. When asked if he thought defendant looked 17 years old in his photograph, Sergeant Bonsness testified: “I think that’s for interpretation. I’ve seen 17-year-olds that look like that, ” and “[h]e could look as young as 17. He could look as old as 32.” We cannot say from such a record that the victims’ disparate estimates of the suspect’s actual age undermined their identifications of him from the photographic lineups.
II. Admission of V.M.’s Testimony Under Section 1108
Defendant next contends the court improperly admitted V.M.’s testimony pursuant to section 1108. Defendant acknowledges that section 1108 removed the restrictions against propensity evidence in sexual assault cases, but argues V.M.’s testimony was inadmissible because she testified about an incident that occurred after both of the charged offenses in this case. Defendant further argues that this evidence was prejudicial pursuant to section 352.
A. Background
The prosecution moved to admit V.M.’s testimony about the 2004 sexual assault because it involved defendant’s commission of another sexual offense and was admissible under section 1108. The prosecutor argued the evidence was also admissible under section 1101, subdivision (b) to prove defendant’s intent and common scheme or plan, because all three incidents involved defendant luring women into secluded areas, punching them in the face, threatening to kill them, and sexually assaulting them. The prosecutor further argued the Legislature had recognized the probative value of such evidence, and the 2004 incident was no more prejudicial than the type of evidence that was admissible under both evidentiary provisions.
Defense counsel argued V.M.’s testimony was inadmissible propensity evidence and prejudicial under section 352. Counsel also objected because V.M.’s testimony dealt with an incident that occurred after both charged offenses and there were no common links or details between the three incidents.
The court held the prosecution could introduce V.M.’s testimony about the 2004 assault under section 1101, subdivision (b), to prove defendant’s intent and modus operandi, and found the evidence was also admissible under section 1108. The court further held the evidence was sufficiently probative, and stated that it would instruct the jury as to the limited admissibility of V.M.’s testimony. After V.M. testified, the court gave the appropriate limiting instruction to the jury.
In section III, post, we will address the admissibility of V.M.’s testimony under section 1101, subdivision (b).
B. Section 1108
Evidence that a person has a propensity or disposition to commit criminal acts is generally inadmissible, and is excluded because of its highly prejudicial nature. (People v. Karis (1988) 46 Cal.3d 612, 636; § 1101, subd. (a).) The admissibility of character evidence was previously limited to establish some fact other than a person’s disposition, such as motive, intent, identity, or common scheme or plan. (§ 1101, subd. (b); People v. Ewoldt (1994) 7 Cal.4th 380, 393; People v. Balcom (1994) 7 Cal.4th 414, 422; People v. Soto (1998) 64 Cal.App.4th 966, 983.)
Section 1108 removed the restrictions imposed by section 1101, and permits the jury in sexual offense cases to consider evidence of other charged or uncharged sexual offenses for any relevant purpose. (People v. Falsetta (1999) 21 Cal.4th 903, 911 (Falsetta); People v. James (2000) 81 Cal.App.4th 1343, 1353 & fn. 7.) Section 1108, subdivision (a) states:
“In a criminal action in which the defendant is accused of a sexual offense, evidence of the defendant’s commission of another sexual offense or offenses is not made inadmissible by Section 1101, if the evidence is not inadmissible pursuant to Section 352.” (Italics added.)
“[T]he Legislature’s principal justification for adopting section 1108 was a practical one: By their very nature, sex crimes are usually committed in seclusion without third party witnesses or substantial corroborating evidence. The ensuing trial often presents conflicting versions of the event and requires the trier of fact to make difficult credibility determinations. Section 1108 provides the trier of fact in a sex offense case the opportunity to learn of the defendant’s possible disposition to commit sex crimes. [Citations.]” (Falsetta, supra, 21 Cal.4th at p. 915.)
“In enacting... section 1108, the Legislature decided evidence of uncharged sexual offenses is so uniquely probative in sex crimes prosecutions it is presumed admissible without regard to the limitations of... section 1101. [Citations.]” (People v. Yovanov (1999) 69 Cal.App.4th 392, 405.) “The charged and uncharged crimes need not be sufficiently similar that evidence of the latter would be admissible under... section 1101, otherwise... section 1108 would serve no purpose. It is enough the charged and uncharged offenses are sex offenses as defined in section 1108.” (People v. Frazier (2001) 89 Cal.App.4th 30, 40-41.) The admission of such evidence, however, is still subject to the weighing process of section 352. (Falsetta, supra, 21 Cal.4th at pp. 916-917; People v. Britt (2002) 104 Cal.App.4th 500, 505 (Britt).) The admission of evidence pursuant to section 1108 does not violate a defendant’s rights to equal protection and due process. (Falsetta, supra, at pp. 907, 918; People v. Fitch (1997) 55 Cal.App.4th 172, 183-185.)
Defendant acknowledges that section 1108 permits the admission of propensity evidence in sexual assault cases, but argues a subsequent offense does not constitute propensity evidence within the meaning of section 1108. The identical argument was rejected in People v. Medina (2003) 114 Cal.App.4th 897 (Medina), where the court held that sexual offenses that occur after the charged offenses are admissible under section 1108. In that case, the defendant was convicted of multiple felonies arising from the sexual assault of a woman in 1993. The court relied on section 1108 and permitted the prosecution to introduce evidence that the defendant committed sexual offenses against another woman in 2001, in an incident completely unrelated to the charged offenses. (Medina at pp. 901-902.) On appeal, the defendant argued section 1108 did not permit the introduction of propensity evidence relating to a crime that occurred after the charged offenses, “‘and certainly not where the time gap between the offenses is substantial....’” (Medina at p. 902.)
Medina held the trial court properly admitted the 2001 incident as propensity evidence under section 1108, even though the charged offenses were committed in 1993:
“The plain language of... section 1108 does not limit evidence of uncharged sexual offenses to those committed prior to the charged offense. On the contrary, the statute broadly states that evidence of the ‘defendant’s commission of another sexual offense, ’ is not made inadmissible by the prohibition on the introduction of character evidence contained in... section 1101. [Citation.] This language strongly suggests that evidence of an uncharged sexual offense committed after the charged offense is within the scope of section 1108. [Citation.]” (Medina, supra, 114 Cal.App.4th at p. 902.)
In reaching this conclusion, Medina relied on the discussion in People v. Shoemaker (1982) 135 Cal.App.3d 442 (Shoemaker), a case which held that evidence of a victim’s character could be proved by subsequent acts under section 1103.
“The Shoemaker court reasoned: [¶] ‘As Wigmore astutely observed, the time of character evidence “... as a question of [r]elevancy, is simple enough.... Character at an earlier or later time than that of the deed in question is relevant only on the assumption that it was substantially unchanged in the meantime, i.e. the offer is really of character at one period to prove character at another, and the real question is of relevancy of this evidence to prove character, not of the character to prove the act.” [Citation.] He then concluded that “... there is no difficulty from the point of view of the relevancy of character; a man’s trait or disposition a month or a year after a certain date is as evidential of his trait on that date as his nature a month or a year before that date; because character is a more or less permanent quality and we may make inferences from it either forward or backward.” [Citation.] We find Wigmore’s views compelling. We therefore hold that evidence of the victim’s subsequent acts of violence, when offered by the defendant in a criminal case, is relevant and admissible under section 1103 to prove the victim’s violent character at the time of the earlier crime.’ [Citation.]” (Medina, supra, 114 Cal.App.4th at p. 903, citing Shoemaker, supra, 135 Cal.App.3d at pp. 447-448.)
Medina agreed with Shoemaker “that both prior and subsequent acts may constitute relevant evidence of a person’s character” (Medina, supra, 114 Cal.App.4th at p. 903), and that interpreting section 1108 to permit admission of sexual offenses that occur after the charged offense “is consistent with the statute’s purpose of allowing the admission of evidence showing ‘a propensity to commit [sex] crimes.’ [Citation.] We conclude that evidence of subsequently committed sexual offenses may be admitted pursuant to... section 1108.” (Medina, supra, at p. 903.)
Medina further held that admission of subsequent propensity evidence under section 1108 did not violate a defendant’s due process rights. The defendant argued that in situations involving subsequent incidents of sexual offenses, there was “‘no commonsense connection to establishing a predisposition to having committed a prior offense.’” (Medina, supra, 114 Cal.App.4th at p. 904.)
“What [the defendant] fails to acknowledge is that section 1108 is not limited to evidence that establishes a predisposition on the part of the defendant to commit a sexual offense. Rather, it permits evidence of the defendant’s commission of ‘another sexual offense or offenses’ to establish the defendant’s propensity to commit sexual offenses. There is no requirement that the other offenses precede in time the charged offense. [Citation.] We reject [the defendant’s] claim that... section 1108 violates due process to the extent it authorizes the admission of evidence of uncharged sexual offenses committed after the charged offense.” (Ibid.)
In the instant case, as in Medina, V.M.’s testimony about defendant’s attempted sexual assault upon her in 2004 was admissible under section 1108, even though the attack occurred after the charged offenses in this case.
Defendant acknowledges Medina’s holding, but argues this court should instead rely on the concurring and dissenting opinions in United States v. Wright (2000) 53 M.J. 476 (Wright), an opinion from the United States Court of Military Justice. Wright interpreted rule 413 of the Federal Rules of Evidence, the rule upon which section 1108 was modeled. (People v. Soto, supra, 64 Cal.App.4th at p. 980.) Defendant notes that the concurring and dissenting opinions in Wright held that subsequent acts were not admissible as propensity evidence under the federal rules. Defendant argues this court should follow the minority analysis in Wright instead of the ruling in Medina.
Federal Rules of Evidence, rule 413(a) provides: “In a criminal case in which the defendant is accused of an offense of sexual assault, evidence of the defendant’s commission of another offense or offenses of sexual assault is admissible, and may be considered for its bearing on any matter to which it is relevant.” (Italics added.)
Medina rejected the identical argument and held Wright’s dissent was not persuasive about the admissibility of subsequent acts evidence under section 1108:
“The dissent in Wright relied primarily on the fact that ‘[a] week after the evidentiary changes were adopted, Senator Robert Dole, a co-sponsor of the changes, described them on the Senate floor as “establishing a general presumption that evidence of past similar offenses in sexual assault and child molestation cases is admissible at trial.”’ [Citation.] We find the Wright dissent unpersuasive in this case, for several reasons. First, the plain language of both Federal Rule of Evidence, rule 413 and... section 1108 contain no temporal requirement pertaining to evidence of uncharged sexual offenses. Second, the California Supreme Court has ‘frequently stated... the statements of an individual legislator, including the author of a bill, are generally not considered in construing a statute, as the court’s task is to ascertain the intent of the Legislature as a whole in adopting a piece of legislation.’ [Citation.] Third, Senator Dole’s statement itself does not purport to describe the full scope of Federal Rule of Evidence, rule 413 and does not state that evidence of subsequent uncharged offenses would be inadmissible pursuant to that rule. We reject [defendant’s] reliance on the dissent in Wright.” (Medina, supra, 114 Cal.App.4th at pp. 903-904.)
We also note that in the context of evidence admitted under section 1101, subdivision (b), the California Supreme Court has explained that “[t]he circumstance that the uncharged offense occurred after the charged offense does not lessen its relevance in demonstrating the existence of a common design or plan.... ‘If evidence of an uncharged offense is relevant, there is no distinction between an offense that is prior to and one that is subsequent to the date of the charged offense.’ [Citation.]” (People v. Balcom, supra, 7 Cal.4th at p. 425, italics in original.) We agree with the analysis in Balcom and Medina and reject defendant’s reliance on the minority opinion in Wright.
Finally, defendant relies on McKinney v. Rees (9th Cir. 1993) 993 F.2d 1378, for the argument that the introduction of propensity evidence under section 1108 violated his due process rights. However, McKinney did not address the admission of evidence under section 1108. Instead, McKinney held the defendant’s due process rights in that case were violated by the admission of evidence that he was fascinated with knives, since the evidence was only probative of the defendant’s character. (McKinney, supra, at p. 1384.) In addition, McKinney “preceded not only the 1995 enactment of section 1108, but also the 1994 adoption (effective July 9, 1995) of rule 414(a) of the Federal Rules of Evidence (28 U.S.C.), ” which was the basis for section 1109, which permits the introduction of propensity evidence in child molestation prosecutions. (People v. Callahan (1999) 74 Cal.App.4th 356, 366; see also People v. Fitch, supra, 55 Cal.App.4th 172, 181.)
C. Section 352
Defendant separately argues that even if V.M.’s testimony was admissible under section 1108, the court should have excluded the evidence as unduly prejudicial pursuant to section 352 because the assault on V.M. was not similar to the charged offenses.
As we have explained, the admission of propensity evidence under section 1108 is still subject to the weighing process of section 352. (Falsetta, supra, 21 Cal.4th at pp. 916-917; Britt, supra, 104 Cal.App.4th at p. 505.)
“By reason of section 1108, trial courts may no longer deem ‘propensity’ evidence unduly prejudicial per se, but must engage in a careful weighing process under section 352. Rather than admit or exclude every sex offense a defendant commits, trial judges must consider such factors as its nature, relevance, and possible remoteness, the degree of certainty of its commission and the likelihood of confusing, misleading, or distracting the jurors from their main inquiry, its similarity to the charged offense, its likely prejudicial impact on the jurors, the burden on the defendant in defending against the uncharged offense, and the availability of less prejudicial alternatives to its outright admission, such as admitting some but not all of the defendant’s other sex offenses, or excluding irrelevant though inflammatory details surrounding the offense. [Citations.]” (Falsetta, supra, 21 Cal.4th at pp. 916-917.)
We review the court’s determination of prejudice under section 352 for an abuse of discretion. (People v. Branch (2001) 91 Cal.App.4th 274, 281-282.)
The trial court did not abuse its discretion when it admitted V.M.’s testimony pursuant to sections 1108 and 352. As explained in Falsetta and other cases, the purpose of section 1108 is to permit the trier of fact in a sexual offense case the opportunity to learn of the defendant’s possible disposition to commit sex crimes, given the Legislature’s determination that such evidence is so uniquely probative in sex crime prosecutions that it is presumed admissible without regard to the limitations of section 1101. Such evidence was extremely probative in this case, because the charged offenses involved incidents where a man approached women he did not know, attacked them in secluded areas, forcibly kept them in those locations, punched them in the face, threatened to kill them, and sexually assaulted them. The section 1108 evidence similarly involved a situation where defendant approached a woman he did not know, followed her to a secluded area, forcibly kept her there, punched her in the face, threatened to kill her, and attempted to sexually assault her. He failed to perform the sexual act only because of V.M.’s valiant efforts to prevent him from raping her. The evidence of defendant’s sexual assault of V.M. was thus highly probative and exactly the type of evidence anticipated by section 1108.
Defendant argues that V.M.’s testimony was too attenuated from the charged offenses because she described an incident that occurred in 2004, whereas the sexual assaults on A.W. and R.N. occurred, respectively, in 1998 and 2002. In Medina, however, the defendant therein was charged with sexual offenses that occurred in 1993, and the court held that subsequent sexual offenses that occurred in 2001 were properly admitted under section 1108. The time span in this case was not unduly prejudicial given the holding in Medina.
Defendant argues the assault on V.M. was not similar to the charged offenses because the record suggests V.M. knew him “to some degree, inasmuch as she agreed to talk with him and sent him upstairs to see if her friend was home.” There is no evidentiary support for this supposition. V.M. never testified that she knew or recognized defendant. Instead, she testified that he approached her on the street, struck up a conversation, asked where she was going, and claimed he was also going to visit the same person. She admittedly took advantage of his presence and asked him to see if her friend was home, because she wanted to avoid contact with her friend’s father. Defendant assured her that her friend was upstairs and waiting for her. She joined him in the apartment and he attacked her. After the assault, she ran downstairs to follow him and called the police to report his location. The entirety of the record refutes any inference that V.M. knew defendant prior to the assault.
Defendant further argues V.M.’s testimony was unduly prejudicial because, while he may have intended to sexually assault V.M., he did not actually do so, whereas both charged offenses involved rapes. As we have explained, however, defendant repeatedly tried to rape V.M. but she held her legs tightly together, fought him off, and prevented him from raping her. Defendant’s inability to complete the sexual act does not decrease the similarities between his assault on V.M. and the charged offenses. Defendant also argues V.M.’s testimony was prejudicial because the court required him to again “defend” himself against V.M.’s allegations. This argument is specious since defendant pleaded no contest to assault with intent to commit rape on V.M.
We conclude the court did not abuse its discretion in admitting V.M.’s testimony under sections 1108 and 352.
III. Admission of V.M.’s Testimony Under Section 1101, Subdivision (b)
As we explained in section II(A), the trial court found V.M.’s testimony was admissible as propensity evidence under section 1108 and to prove defendant’s intent and common scheme or plan under section 1101, subdivision (b). Defendant contends that, aside from the court’s ruling on section 1108, V.M.’s testimony was inadmissible under section 1101, subdivision (b).
In the course of this issue, defendant describes V.M.’s testimony as involving “the prior acquittal incident.” However, defendant pleaded no contest to assault with intent to commit rape on V.M., and there is no evidence that he was acquitted of any charges.
“Prior to the enactment of section 1108, section 1101 governed the use of evidence of prior uncharged sexual misconduct in a criminal trial. Subdivision (a) declared the general rule that character evidence (including evidence of prior bad acts) was inadmissible to prove a person’s conduct on a specified occasion. Subdivision (b), however, carved out an exception to this rule: uncharged misconduct could be admitted to prove some fact other than a mere disposition to commit such an act such as motive, intent, identity, or plan. [Citation.]” (Britt, supra, 104 Cal.App.4th at p. 505.)
However, section 1101, subdivision (b)’s test for the admissibility of prior uncharged offenses in a sex offense case has not survived the enactment of section 1108. (Britt, supra, 104 Cal.App.4th at pp. 505-506.) “‘In enacting... section 1108, the Legislature decided evidence of uncharged sexual offenses is so uniquely probative in sex crimes prosecutions it is presumed admissible without regard to the limitations of... section 1101 .’ [Citation.] When section 1108 swept away the general prohibition on character evidence set forth in section 1101, it rendered moot the exceptions to that prohibition created by section 1101, subdivision (b).” (Ibid.)
In any event, defendant asserts the court herein improperly found V.M.’s testimony was admissible to prove his intent and common scheme or plan under section 1101, subdivision (b). To be admissible to show intent under section 1101, subdivision (b), “‘the prior conduct and the charged offense need only be sufficiently similar to support the inference that defendant probably harbored the same intent in each instance.’ [Citations.]” (People v. Cole (2004) 33 Cal.4th 1158, 1194.) “To be admissible to show a common scheme or plan, a greater degree of similarity is required than to show intent, and ‘the common features must indicate the existence of a plan rather than a series of similar spontaneous acts, but the plan thus revealed need not be distinctive or unusual.’ [Citation.]” (People v. Davis (2009) 46 Cal.4th 539, 602.) Under section 352, the probative value of a defendant’s prior acts must not be substantially outweighed by the probability that its admission would create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury, and the court’s ruling is reviewed for an abuse of discretion. (Ibid.)
Defendant argues the attack on V.M. was not similar to the charged offenses to “suggest identity or common scheme or plan, ” because defendant did not sexually penetrate V.M., and V.M. might have been “acquainted” with defendant. The trial court admitted V.M.’s testimony as relevant to prove defendant’s intent and not his identity, and there is no evidence that V.M. already knew defendant before he approached her on the street.
Defendant further argues there was nothing unusual or distinctive about the attack on V.M. compared to the sexual assaults on A.W. and N.R., “when considering the fact that most assaults for the purpose of rape, will involve a man overpowering a women, usually in seclusion. All three incidents involved taking advantage of unwilling victims, but this is true of all attempted rapes or rapes.” Not so. In each of the three incidents, defendant approached a woman on the street, dragged or directed her to a secluded or isolated area, punched her in the face with such force to inflict injuries and cause bleeding, removed her clothes, sexually assaulted her, and threatened to kill her as he left. He raped A.W. and N.R., and he only failed in his repeated attempts to rape V.M. because of her valiant resistance. Defendant’s attack on V.M. was sufficiently similar to be admissible to prove both his intent and his common scheme or plan under section 1101, subdivision (b).
IV. Kidnapping of N.R. and the Prosecutor’s Closing Argument
Defendant contends his conviction in count V for kidnapping N.R. (Pen. Code, § 207, subd. (a)) must be reversed because the prosecutor relied on a legally erroneous theory in closing argument when he argued that defendant kidnapped N.R. by luring her to the field. Defendant argues the jury was not instructed on asportation by fraud or deceit, the court should have given an instruction on that point, and the absence of such an instruction means the jury relied on a legally erroneous theory to convict him of the kidnapping of N.R.
A. Closing Argument
In closing argument, the prosecutor addressed the kidnapping charge and acknowledged that N.R. gave different accounts of how she ended up in the field:
“With regards to [N.R.], she’s walking, and she’s near Rigo’s Tacos, which is right next door to the El Paradiso bar. We heard testimony from Deputy Marilao about the location of those two businesses. And as she’s walking about Rigo’s Tacos, the defendant approaches her and takes her cell phone. And when she talked to Patty Poeschel in 2007, she told Patty Poeschel when she tried to get the cell phone back, the defendant grabbed her and pulled her into a field. And, remember, she also had abrasions on her back, which a reasonable inference is that those occurred because she was raped on her back in that field.
“[N.R.] told Deputy Marilao about her cell phone being taken. It’s a little unclear, candidly, whether the defendant pulled her at that point or basically just used her phone to get her to follow him out into the field. Either way, she wouldn’t have gone there but for the defendant’s actions. Either way, that movement increased the risk of harm to [N.R.]. Either way, it decreased the likelihood of detection of his crimes that the defendant was facing. Either way, we have a kidnapping of both [A.W.] and [N.R.].” (Italics added.)
Defense counsel did not object to the prosecutor’s argument or request any additional instructions.
B. Simple Kidnapping
Defendant contends the prosecutor relied on a legally erroneous theory in his closing argument about the kidnapping and asportation of N.R. Defendant was charged in count V with kidnapping of N.R. in violation of Penal Code section 207, subdivision (a). “Generally, to prove the crime of kidnapping, the prosecution must prove three elements: (1) a person was unlawfully moved by the use of physical force or fear; (2) the movement was without the person’s consent; and (3) the movement of the person was for a substantial distance. [Citation.]” (People v. Jones (2003) 108 Cal.App.4th 455, 462; People v. Hill (2000) 23 Cal.4th 853, 856.)
“In contrast to the use of force or fear to compel asportation, ‘asportation by fraud alone does not constitute general kidnapping in California.’ [Citations.] This long-standing rule is premised on the language of [Penal Code] section 207, which for general kidnapping... requires asportation by force or fear, but for other forms of kidnapping proscribes movement procured only by ‘fraud, ’ ‘entice[ment], ’ or ‘false promises.’ [Citations.]” (People v. Majors (2004) 33 Cal.4th 321, 327.)
Defendant correctly notes that the jury in this case was instructed as to the elements of kidnapping pursuant to CALJIC No. 9.50, that asportation must have occurred by the use of force or fear. Defendant also notes the jury was not instructed on asportation by fraud or deceit. Based on the difference between the two types of asportation, defendant asserts the prosecutor relied on a legally erroneous theory because he argued that N.R. was lured into the field by the promise of recovering her cell phone, and that theory was not supported by the instructions. However, the prosecutor never argued that defendant tricked or lured N.R. into the field. Instead, the prosecutor acknowledged that N.R. gave different accounts of her initial encounter with defendant as she left the bar. The prosecutor suggested that regardless of the nature of N.R.’s initial contact, her account still established asportation and satisfied the elements of kidnapping.
C. Guiton and Legally Insufficient Theories of Guilt
Defendant insists that the prosecutor’s closing argument raised a legally erroneous theory of asportation for simple kidnapping, the court should have instructed the jury on that theory of asportation, and the court’s failure to give such instructions requires reversal because it is impossible to determine whether the jury relied on a legally erroneous theory to find him guilty of kidnapping N.R.
Defendant’s argument is based on People v. Guiton (1993) 4 Cal.4th 1116 (Guiton), which held that “‘[w]hen the prosecution presents its case to the jury on alternate theories, some of which are legally correct and others legally incorrect, and the reviewing court cannot determine from the record on which theory the ensuing general verdict of guilt rested, the conviction cannot stand.’” (Id. at p. 1122, quoting People v. Green (1980) 27 Cal.3d 1, 69.) “[T]his rule ‘is perhaps most commonly invoked when the alternate theory is legally erroneous, ’ that is, when one of the theories is infected by prejudicial error such as inadmissible evidence or incorrect instructions. [Citation.] However …‘the same rule applies when the defect in the alternate theory is not legal but factual, i.e., when the reviewing court holds the evidence insufficient to support the conviction on that ground.’ [Citation.]” (Guiton, supra, at p. 1122.) When the erroneous theory is merely factually inadequate, reversal is not required whenever a valid ground for the verdict remains absent an affirmative showing that the jury relied on the erroneous theory. (Id. at pp. 1128-1129.)
However, the California Supreme Court has clarified and limited Guiton’s application to circumstances where the trial court, as opposed to the prosecution, “presented the state’s case to the jury on an erroneous legal theory or theories.” (People v. Morales (2001) 25 Cal.4th 34, 43.) Morales clarified that Guiton error occurs when jury instructions are inherently erroneous or not supported by substantial evidence. (Id. at pp. 41-43.) However, when the prosecutor misstates “some law, ” then “such an error would merely amount to prosecutorial misconduct [citation] during closing argument, rather than trial and resolution of the case on an improper basis.” (Id. at p. 43.)
In Morales, the defendant was charged with possessing phencyclidine (PCP). The evidence showed defendant was under the influence of PCP when he was arrested, and a vial of PCP was found in his car. (Morales, supra, 25 Cal.4th at p. 37.) In closing argument, the prosecutor argued that evidence the defendant was under the influence of PCP was sufficient to establish possession. (Id. at p. 38.) The prosecutor’s argument was incorrect because being under the influence is insufficient by itself to prove possession. On appeal, the defendant argued the prosecutor presented the jury with a legally erroneous theory and reversal was required under Guiton. (Id. at pp. 41-42.)
Morales disagreed and held it would be “an incorrect reading of precedent” to conclude that “because the closing argument is part of the presentation of the state’s case, error may arise solely from improper remarks made therein.” (Morales, supra, 25 Cal.4th at p. 48.) Morales explained:
“Guiton and Green are unlike this case in that in each of them, the court presented the state’s case to the jury on an erroneous legal theory or theories.... [¶ ]... [¶ ] In this case, by contrast, the court did not present to the jury a case that was premised on a legally incorrect theory. The prosecutor arguably misstated some law, but such an error would merely amount to prosecutorial misconduct [citation] during argument, rather than trial and resolution of the case on an improper legal basis. [¶ ] When a defendant believes the prosecutor has made remarks constituting misconduct during argument, he or she is obliged to call them to the court’s attention by a timely objection. Otherwise no claim is preserved for appeal. [Citation.]” (Id. at pp. 43-44.)
As in Morales, the trial court in this case did not present the jury with a legally erroneous theory that the prosecutor expanded upon in closing argument. Guiton is not applicable to this situation and reversal is not mandated. While the prosecutor may have misstated an aspect of asportation, such an error constituted prosecutorial misconduct, and defendant failed to object and preserve the point for review.
Even if defendant preserved a claim of prosecutorial misconduct by making an objection, any error is necessarily harmless. “A prosecutor’s conduct violates the Fourteenth Amendment to the federal Constitution when it infects the trial with such unfairness as to make the conviction a denial of due process. 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 trial court or the jury. Furthermore... when the claim focuses upon comments made by the prosecutor before the jury, the question is whether there is a reasonable likelihood that the jury construed or applied any of the complained-of remarks in an objectionable fashion. [Citation.] [¶ ] At closing argument a party is entitled both to discuss the evidence and to comment on reasonable inferences that may be drawn therefrom. [Citations.]” (Morales, supra, 25 Cal.4th at p. 44.)
As we have explained, the prosecutor used closing argument to acknowledge that N.R. gave different accounts about her initial encounter with the assailant when she spoke to Officer Marilao. The prosecutor’s argument addressed only that initial encounter, and he argued defendant was guilty of kidnapping. The jury heard evidence from Poeschel, the the district attorney’s investigator, who testified that she interviewed N.R. in February 2007, and N.R. clarified what happened after her initial encounter with the assailant. N.R. said the man grabbed a cell phone out of her hands and she protested. She tried to get the cell phone back from him, and he grabbed her by the arm, threw her on the ground, and raped her. The jury herein was instructed that statements made by the attorneys were not evidence, and we presume the jury followed the court’s instructions and deliberated based on the evidence. The prosecutor’s comments did not constitute misconduct, and any error is consequently harmless.
DISPOSITION
The judgment is affirmed.
I CONCUR: CORNELL, Acting P.J.
DAWSON, J., Concurring
I agree with the majority’s conclusion that defendant Jose Hernandez waived any Melendez-Diaz objection he might have had, to the DNA evidence, when his attorney stated “we’re not going to have any objection to DNA evidence coming in at this trial. They can bring it all.” Under the circumstance of an express waiver, it would be inappropriate to apply the doctrine of futility. (See People v. Sandoval (2007) 41 Cal.4th 825, 837, fn. 4.) We cannot determine from the record presented the reason why defense counsel expressly waived a Sixth Amendment objection to the DNA evidence. The waiver could have been based on the proposition that an objection would be futile; but it also could have been based on a purely tactical choice. In these circumstances, it would not be appropriate for this court to overlook an express waiver at this appellate stage of postconviction proceedings. (Cf. People v. Lucas (1995) 12 Cal.4th 415, 436-437.)
Melendez-Diaz v. Massachusetts (2009) 557 U.S. ___ [129 S.Ct. 2527].
I also agree with the majority’s findings that (1) no error occurred when the trial court admitted evidence that defendant committed another sexual assault in an unrelated case, and (2) no error occurred in connection with instruction or argument on the kidnapping charged in count V.
For these reasons, I concur in the affirmance of the judgment against defendant. I find it unnecessary to address either the question whether People v. Geier (2007) 41 Cal.4th 555 remains good law after the decision in Melendez-Diaz or the question whether any error in admitting the DNA evidence was prejudicial. Thus, I will refrain from doing so.