Opinion
A157059
03-30-2020
THE PEOPLE, Plaintiff and Respondent, v. MANDELA MABREY, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (City & County of San Francisco Super. Ct. No. 229465)
Defendant Mandela Mabrey appeals the judgment convicting him of first degree residential burglary and sentencing him to four years in prison. The only evidence connecting defendant to the burglary was DNA found on a broken window at the burglarized home. Defendant contends the admission of the DNA evidence violated state and federal law and alternatively, if the evidence was properly admitted, it is not sufficient to support his conviction. Defendant also contends the court erred by instructing the jury that guilt may be inferred by flight from the scene. We find no error and shall affirm the judgment.
Background
Defendant was charged by information with residential first degree burglary of an inhabited dwelling house (Pen. Code, § 459). The information further alleged that defendant was ineligible for probation due to having suffered two qualifying prior felony convictions. (§§ 1203, subd. (e)(4), 1203, subd. (k).)
All statutory references are to the Penal Code unless otherwise noted.
The victim testified that on December 18, 2017, he returned home at around 12:50 p.m. to find signs of a break-in and someone in the house. He immediately walked away from the house to report the crime. Shortly thereafter, he saw two men exit the alley next to his home and drive away. He could not identify the men because their faces were covered.
A police officer responded to the victim's home at about 1:00 p.m. After talking with the victim for about 30 minutes, he requested that the Crime Scene Investigations (CSI) Unit respond to the scene to process it for DNA and fingerprints. The CSI officer arrived to process the home sometime after 2:00 p.m. The officer attempted to lift a fingerprint from a broken window but the print had an insufficient number of points to plot a potential match. The officer took DNA samples from three sources: the broken window, a knife, and the door handle to a safe. He testified that he collected the DNA samples in accordance with his training: swabbing the area with a set of wet and dry Q-tips, wrapping the Q-tips in sterile paper marked with the area location, and placing them into a sealed envelope. The sealed samples are stored in the police department's "property control division" until the crime laboratory requests the samples for analysis.
The laboratory's screening analyst testified that she retrieved the sealed envelopes from "secure storage," examined them for evidence of tampering, then opened and itemized their contents. After she prepped the swabs for DNA extraction, they were placed into a designated storage place for retrieval by the next analyst. As per department policy, she documented her steps in her "bench notes."
Analysis of the safe door handle sample showed it to be a mixture of at least two individuals that included at least one male contributor; but no further conclusions could be drawn due to the limited amount of DNA available. Analysis of the kitchen knife also showed that at least one male was part of the DNA that had been recovered but that no further conclusions could be reached due to the limited amount of DNA available in that sample. A single-source DNA profile was obtained from the DNA sample taken from the exterior glass of the broken window. The DNA profile was uploaded into the state-wide DNA database and defendant was identified as a likely match. A reference DNA sample was collected from defendant to confirm his DNA.
Defendant's reference sample was tested twice because the criminalist who initially extracted, quantified and amplified the DNA was shown to have failed a proficiency test. The results of both tests were the same.
The prosecution's expert testified that defendant's DNA "matched" the DNA found on the broken window. The expert explained that defendant could not be excluded as a contributor to the evidentiary sample and that the probability of a random, unknown U.S. Caucasian to have been the source of the DNA on the glass window sample is one in 20.7 nonillion (one followed by 30 zeros). For African-Americans, the probability is 1 in 340 octillion (one followed by 29 zeros), for U.S. Hispanics 1 in 132 nonillion, and for U.S. Asians, 1 in 2.22 nonillion.
When defendant was interviewed by the police, he denied ever having been at the residence.
The jury found defendant guilty of the charged offense and the court found the enhancement allegations to be true. Defendant was sentenced to the midterm of four years in prison. Defendant timely filed a notice of appeal.
Discussion
1. The expert DNA testimony was properly admitted.
As set forth above, the prosecution's expert opined that defendant's DNA matched the DNA recovered from the broken window. The expert formed his opinions and conclusions on data that was generated by analysts who did not testify. The non-testifying analysts had extracted, quantified and amplified the crime scene window glass DNA sample and defendant's reference sample. Defendant contends the results of the other analysts' work was testimonial hearsay that was admitted over his objections in violation of his Sixth Amendment right to confrontation and our Supreme Court's ruling in People v. Sanchez (2016) 63 Cal.4th 665 (Sanchez).
In Sanchez, supra, 63 Cal.4th at pages 679-686, the Supreme Court held the Sixth Amendment right to confront and cross-examine witnesses limits an expert witness from relating case-specific hearsay in explaining the basis for his or her opinion. The court advised that "a court addressing the admissibility of out-of-court statements must engage in a two-step analysis. The first step is a traditional hearsay inquiry: Is the statement one made out of court; is it offered to prove the truth of the facts it asserts; and does it fall under a hearsay exception? If a hearsay statement is being offered by the prosecution in a criminal case, and the Crawford [v. Washington (2004) 541 U.S. 36] limitations of unavailability, as well as cross-examination or forfeiture, are not satisfied, a second analytical step is required. Admission of such a statement violates the right to confrontation if the statement is testimonial hearsay." (Sanchez, at p. 680.) The court observed that testimonial statements are "made primarily to memorialize facts relating to past criminal activity, which could be used like trial testimony," while nontestimonial statements "deal with an ongoing emergency or some other purpose unrelated to preserving facts for later use at trial." (Sanchez, p. 689; see also People v. Dungo (2012) 55 Cal.4th 608, 619 [A statement is testimonial only if "made with some degree of formality" and its primary purpose "pertains in some fashion to a criminal prosecution."].)
Initially, we reject defendant's argument that the court failed to conduct the first step of the analysis to determine whether the statements were hearsay. Assuming the results of the DNA analysis conducted by technicians other than the testifying expert were out-of-court statements offered for their truth, the results nonetheless were properly admitted pursuant to a valid hearsay exception. The court did not, as defendant suggests, merge all of his objections into a constitutional confrontation issue. The court sustained defendant's initial hearsay objection and required the prosecution to lay a foundation for the admission of the evidence. Based on the expert's testimony that the analysts in his laboratory prepare their notes "contemporaneously" with their work in accordance with department policy, and their notes are kept in the ordinary course of business, the court found that the prosecutor had satisfied the foundational requirements of the hearsay exception for business records under Evidence Code section 1271. Defendant has not challenged this ruling, which in any event was not erroneous.
The results of the DNA analysis were not testimonial so that defendant's Sixth Amendment rights were not impacted by the expert's testimony. In People v. Holmes (2012) 212 Cal.App.4th 431, 438-439, he court held that forensic analysis relied on by DNA experts was not testimonial hearsay and did not support a confrontation clause challenge. The defendant contended that his right to confront witnesses was violated because the DNA experts who testified "did not personally perform all of the testing upon which they relied in reaching their opinions." (Id. at p. 433.) The court concluded that the reports on which the expert relied lacked formality and were unsworn statements that "merely record objective facts." (Id. at p. 438, citing People v. Dungo, supra, 55 Cal.4th at p. 619.) Although the materials did pertain to criminal prosecution and some of the analysis was performed after the defendant was targeted as a suspect, it still "lacked formality." (People v. Holmes, supra, at p. 438.)
Similarly in People v. Steppe (2013) 213 Cal.App.4th 1116, 1118, the court held that admission of a DNA analysis prepared by a person other than the expert testifying did not violate the defendant's right to confrontation. The court held that the reports on which the expert relied were not formalized statements, and therefore were nontestimonial. (Id. at p. 1122.) According to the court, " 'When lab technicians are asked to work on the production of a DNA profile, they often have no idea what the consequences of their work will be. . . . The technicians who prepare a DNA profile generally have no way of knowing whether it will turn out to be incriminating or exonerating—or both. [¶] It is also significant that in many labs, numerous technicians work on each DNA profile. [Citations.] When the work of a lab is divided up in such a way, it is likely that the sole purpose of each technician is simply to perform his or her task in accordance with accepted procedures.' " (Id. at pp. 1122-1123, quoting Williams v. Illinois (2012) 567 U.S. 50, 85.) " 'If DNA profiles could not be introduced without calling the technicians who participated in the preparation of the profile, economic pressures would encourage prosecutors to forego DNA testing and rely instead on older forms of evidence . . . that are less reliable.' " (Id. at p. 1123, quoting Williams, 567 U.S. at p. 58.)
Finally, in People v. Barba (2013) 215 Cal.App.4th 712, 715, the court held that admission of the testimony of a laboratory director who did not analyze the DNA samples did not violate the defendant's right to confrontation. The court ruled that "So long as a qualified expert who is subject to cross-examination conveys an independent opinion about the test results, then evidence about the DNA tests themselves is admissible." (Id. at p. 742.) The court held that the primary purpose of the DNA test materials was not testimonial even though the defendant had been charged with the crime because "lab technicians . . . have no idea what their results might show, and DNA testing is routinely used to inculpate or exonerate those charged with crimes." (Id. at p. 742.)
We agree with these decisions. The documents on which the expert based his opinion were informal. They included the bench notes of technicians and analysts completing particular tasks and the results of those tasks. They were created in the ordinary course of business and were not formalized documents such as an affidavit. (See Crawford v. Washington, supra, 541 U.S. at pp. 51-52.) They simply reflected the allele DNA sequences of the DNA found on the window at the site of the burglary and of the defendant. Based on the numbers reflected in these reports, the expert compared the DNA profiles and opined that defendant's DNA matched the DNA found on the window.
There was no err in the admission of the DNA expert's testimony.
2. There was substantial evidence to support the burglary conviction.
The sufficiency of evidence is reviewed "in the light most favorable to the judgment below to determine whether it discloses substantial evidence such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." (People v. Johnson (1980) 26 Cal.3d 557, 562.) Appellate courts "do not weigh the evidence but rather ask whether there is sufficient reasonable credible evidence of solid value that would support the conviction." (People v. Russell (2010) 187 Cal.App.4th 981, 988.)
Defendant contends that even if the DNA evidence was properly received, it provided insufficient evidence to support the burglary conviction because defects in the chain of custody rendered that evidence unreliable. "In a chain of custody claim, ' "[t]he burden on the party offering the evidence is to show to the satisfaction of the trial court that, taking all the circumstances into account including the ease or difficulty with which the particular evidence could have been altered, it is reasonably certain that there was no alteration. [¶] The requirement of reasonable certainty is not met when some vital link in the chain of possession is not accounted for, because then it is as likely as not that the evidence analyzed was not the evidence originally received. Left to such speculation the court must exclude the evidence. [Citations.] Conversely, when it is the barest speculation that there was tampering, it is proper to admit the evidence and let what doubt remains go to its weight." ' " (People v. Catlin (2001) 26 Cal.4th 81, 134.)
Defendant does not challenge the admissibility of the DNA evidence on chain of custody grounds but does argue that defects in the chain of custody "gave rise to a reasonable doubt." He notes that after the responding officer left the victim's home and before the CSI officer arrived, the scene was "subject to total victim control." He also relies on the CSI officer's somewhat contradictory testimony regarding the precise location from where the sample was obtained. Defendant writes, "When [the CSI officer] finally appeared on scene, he did not take any photos of the window glass area that he said he swabbed for DNA. [He] did not collect the window glass either. [He] told the jury the specific spot he had obtained the sample from but admitted that when he had testified at an earlier court hearing, he could not remember what portion of the glass he had swabbed." Defendant fails to explain, however, how the sample might have been tainted by either of these purported defects in the chain of custody. In any event, the matter was properly put to the jury.
The court instructed the jury that "Chain of custody refers to the documentation of the movement of physical evidence from the time it is obtained until the time it is presented in court. The prosecution bears the burden of establishing a continuous chain of custody for physical evidence that it introduces. If you find that there were defects in the chain of custody, that may affect the weight that you give this evidence." As defendant notes, the jury deliberations consumed about as much time as it took to present the evidence. The jury's questions and requests for readback of testimony demonstrate the jury was properly focused on these issues. Substantial evidence supports the jury's implicit finding that the DNA found at the scene of the burglary belonged to defendant. There was no indication that defendant knew the victim or anyone in his family, so that the presence of his DNA on the broken window supports the reasonable inference that he was one of the two people seen burglarizing the house.
Defendant also argues that the testing of his reference DNA sample was unreliable because the first analyst failed a proficiency test. However, as noted above, the sample was retested and the results were confirmed. This evidence was also presented to the jury.
3. Any instructional error re flight was harmless.
Over defendant's objection, the jury was instructed pursuant to CALCRIM No. 372 as follows: "If the defendant fled immediately after the crime was committed, that conduct may show that he was aware of his guilt. If you conclude that the defendant fled, it is up to you to decide the meaning and importance of that conduct. However, evidence that the defendant fled cannot prove guilt by itself." Defendant contends it was error to deliver this instruction to the jury because there was no evidence that defendant was one of the fleeing individuals. (See People v. Mason (1991) 52 Cal.3d 909, 943 ["If there is evidence identifying the person who fled as the defendant, and if such evidence 'is relied upon as tending to show guilt,' then it is proper to instruct on flight."].) It is questionable whether the DNA evidence alone provided a sufficient predicate for the flight instruction but assuming that it did not, the error was harmless. (People v. Watson (1956) 46 Cal.2d 818, 836.) The primary issue at trial was identity. The jury's determination necessarily was based on its evaluation of the DNA evidence. Once the jury determined that this evidence proved defendant was one of the burglars, the case was essentially complete. The flight instruction could have added nothing to the finding of guilt. It is not reasonably probable that a result more favorable to defendant would have been reached had the court not given the flight instruction. (See People v. Parrish (1986) 185 Cal.App.3d 942, 948 [any error regarding flight instruction was harmless where the only factual issue was the identity of the perpetrator].)
Disposition
The judgment is affirmed.
/s/_________
POLLAK, P. J. WE CONCUR: /s/_________
TUCHER, J. /s/_________
BROWN, J.