Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, Super. Ct. No. YA062921, John Vernon Meigs, Judge.
Ronald White for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Yun K. Lee and Erika D. Jackson, Deputy Attorneys General, for Plaintiff and Respondent.
TURNER, P. J.
I. INTRODUCTION
Defendant, Gregory Eric Moore, appeals from his conviction for first degree murder (Pen. Code, § 187, subd. (a)) and the jurors’ finding that he personally used a firearm in the commission of the murder. (§ 12022.5, subd. (a).) Defendant argues that there was insufficient evidence to support his conviction and the trial court improperly admitted deoxyribonucleic acid and prior conviction evidence. Defendant raises several sentencing contentions. We affirm the judgment with some modifications.
Unless otherwise indicated, future statutory references are to the Penal Code.
II. FACTUAL BACKGROUND
The trial in this case occurred between April 22 and May 8, 2008. The murder occurred on October 31, 1993. We view the evidence in a light most favorable to the judgment. (Jackson v. Virginia (1979) 443 U.S. 307, 319; People v. Osband (1996) 13 Cal.4th 622, 690; Taylor v. Stainer (9th Cir. 1994) 31 F.3d 907, 908-909.)
At approximately 5 p.m. on October 31, 1993, Bradford Smith was with Sam Slusher, Brian Simmons, Eddie Pruitt, and Reginald Fowler. The men drove in three Mustangs from Mr. Slusher’s home to Crenshaw Boulevard and Stocker Avenue, where they pulled into a parking lot at the Baldwin Hills Mall. Mr. Pruitt rode with Mr. Slusher. They rode in Mr. Slusher’s red, 5.0 Mustang convertible. Thereafter, several other Mustang drivers joined the group. Jerome Daniels joined them in his black Trans Am. The group later moved to a parking lot across the street. After approximately 10 minutes, 2 other cars drove into the parking lot, including a Buick Regal and a dark-colored 1979 or 1980 Oldsmobile Cutlass. The men inside these other cars began to flash gang signs. The group decided to drive away. After parking at Manchester and Crenshaw, Mr. Slusher got out of his car, leaving the driver’s door open. Mr. Pruitt remained in Mr. Slusher’s car with the keys inside.
A dark-skinned African-American man with long hair got out of one of the cars and approached Mr. Slusher’s car. The man walked around Mr. Slusher’s car. Mr. Pruitt watched the man in the rear view mirror. The man pulled a gun out and ran toward the driver’s side of Mr. Slusher’s car. The man told Mr. Pruitt, “Get out the car.” Mr. Pruitt got out and ran away from the car toward a nearby Pic-N-Save store. Mr. Slusher walked toward the front of his car. Mr. Slusher raised his hands up above his shoulders. Mr. Slusher said: “Just take the car. Don’t hurt anybody.” The African-American man fired his gun, shooting Mr. Slusher in the face. Mr. Slusher held his face and slumped over. The African-American man jumped into Mr. Slusher’s car, started it, and began driving away. While driving away, the African-American man fired five to seven more shots at Mr. Slusher. The man drove off.
Mr. Smith pulled out his own gun, a nine millimeter Glock, and began shooting. Mr. Smith fired as the man drove off in Mr. Slusher’s car. Mr. Smith shot approximately three times. Mr. Smith then chased after Mr. Slusher’s car for a few blocks. Mr. Smith continued to fire shots at the fleeing car. Mr. Smith returned to the shooting scene after he heard the police approach.
Inglewood Police Officer Marie Dibernardo arrived at the shooting scene at the Pic-N-Save parking lot shortly after 8 p.m. Officer Dibernardo found Mr. Slusher face down on the ground near the Pic-N-Save store. The paramedics arrived and rolled Mr. Slusher’s body over. Officer Dibernardo found a gun underneath Mr. Slusher’s body. The firearm was a.380 caliber handgun with one bullet in the chamber and two more in the magazine. Five nine millimeter cartridge casings, a partial bullet jacket and a projectile were also found at the scene. Mr. Slusher died while en route to the hospital. A subsequent autopsy determined that Mr. Slusher died as the result of five gunshot wounds.
Mr. Slusher’s Mustang convertible was found in the 7000 block of South Fifth Avenue. The car had been burned. A bullet hole was found in the driver’s door and nicks were observed in the hood and near the windshield wipers. Six shell casings were found inside the Mustang. A trail of blood led away from the Mustang for approximately 300 feet. Forensic Detective Gary Osnower collected blood samples from the driver’s armrest and the center console of the Mustang as well as the sidewalk.
A deoxyribonucleic acid sample was obtained from defendant on May 6, 2005. Los Angeles County Sheriff Senior Criminalist John Bockrath examined: the deoxyribonucleic acid swabs of both Mr. Slusher and defendant; the blood swabs taken from the driver’s door armrest of Mr. Slusher’s Mustang automobile; and the blood on the nearby sidewalk. Mr. Bockrath performed a deoxyribonucleic acid analysis of the swabs to determine genetic typing. Mr. Bockrath was able to exclude Mr. Slusher’s sample because it did not match any of the evidence samples. Based on the genetic profile of the two blood stains, Mr. Bockrath concluded: the occurrence frequency for that deoxyribonucleic acid profile in a Caucasian population would have been approximately one out of 319 quadrillion individuals; the occurrence frequency for an African-American population would be one out of 16.4 quadrillion; and one of 4.1 quintillion for a Latino population. Mr. Bockrath concluded that the blood stain on the sidewalk and the driver’s door were identical and from the same individual. Those two blood stains matched defendant.
Mr. Smith was shown a photographic lineup on March 25, 2005, by Officer Thad Osterhout. Mr. Smith identified someone other than defendant at that time after viewing the photographs for approximately three or four minutes. Mr. Smith circled the photo of the individual that looked most like the gunman. However, during trial, Mr. Smith acknowledged that his memory had failed. Mr. Smith was unable to identify defendant at trial. Mr. Simmons identified defendant from a photographic lineup in 2005. Mr. Simmons indicated that there was a 40 percent chance that defendant was the individual who shot Mr. Slusher. Mr. Simmons also identified defendant at trial as the shooter. Mr. Pruitt was also shown a photographic lineup by the police in 2005. After looking at the photos for approximately 10 minutes, Mr. Pruitt eliminated all but Nos. 1 and 5. After an additional 10 minutes, Mr. Pruitt identified defendant, who was depicted in No. 5. Mr. Pruitt stated, “I’m not 100 percent sure, but I think out of six photographs, this one is him.” Mr. Pruitt was unable to identify defendant at trial. At trial, Mr. Fowler stated the gunman had a ponytail, dark complexion, and husky build and wore a white T-shirt and black pants. Mr. Fowler indicated it was too long ago to recognize anyone in the courtroom.
Defendant testified on his own behalf. Defendant admitted that he had been convicted of domestic violence in 2004 and unlawful sex with a minor in 2003. Defendant was interviewed by Detective Jeff Steinhoff. Defendant described their conversation thusly: “[H]e said, ‘Do you remember a murder that happened at a Pic-N-Save?’ [¶] And I’m like ‘A murder? No, I don’t remember no murder.’ [¶] And he was like -- well, he said well -- that’s when he start bringing in the car later on. He said, ‘Have you ever seen this Mustang before.[’] [¶] And I said, ‘I’m not sure if I ever seen that Mustang before. I said I seen a lot of different kinds of Mustangs going around because I’m in a car club too. I used to be in the low rider club. So I told him I been in a lot of cars before.” Defendant acknowledged that he had a scar on his left arm. However, defendant clarified that his arm injury occurred when he was broadsided while driving a Honda Civic. (Defendant’s mother, Marjorie Moore, testified that defendant got the scar on his arm during the late summer of 1995.) Defendant acknowledged that he was in prison from December 20, 1994, through June 10, 1997.
Defendant explained that he got a cut on the knuckle of his right thumb on a Halloween night more than 10 years earlier. Defendant was with friends in an alley near the corner of Fifth Avenue and Florence Bouelvard. Defendant saw a red car come around the corner. The car was smoking from the hood area. The driver of the red car got out 10 to 15 seconds later when another car drove up. The driver got into the other car, which then was driven away. Defendant got into the smoking car and attempted to start it. When it would not start, defendant got out a pocket knife to remove the radio. However, in his attempt to remove the radio, he cut his hand with the knife. Defendant’s hand began bleeding. Thereafter, defendant abandoned the car.
III. DISCUSSION
A. Substantial Evidence Supports the Conviction
Defendant argues that there was insufficient evidence to support his murder conviction. Defendant argues that this was a very old case and the prosecution presented questionable witnesses. Defendant further argues that a reasonable jury would have to speculate that his arm wound scar was the result of a gunshot wound as he fled the shooting scene. Finally, defendant argues there was a reasonable explanation for the blood and deoxyribonucleic acid circumstantial evidence.
In reviewing a challenge of the sufficiency of the evidence, we apply the following standard of review: “[We] consider the evidence in a light most favorable to the judgment and presume the existence of every fact the trier could reasonably deduce from the evidence in support of the judgment. The test is whether substantial evidence supports the decision, not whether the evidence proves guilt beyond a reasonable doubt.” (People v. Mincey (1992) 2 Cal.4th 408, 432, fn. omitted; People v. Hayes (1990) 52 Cal.3d 577, 631; People v. Johnson (1980) 26 Cal.3d 557, 576.) Our sole function is to determine if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. (Jackson v. Virginia, supra, 443 U.S. at p. 319; People v. Bolin (1998) 18 Cal.4th 297, 331; People v. Marshall (1997) 15 Cal.4th 1, 34; People v. Ochoa (1993) 6 Cal.4th 1199, 1206; People v. Barnes (1986) 42 Cal.3d 284, 303; Taylor v. Stainer, supra, 31 F.3d at pp. 908-909.) The standard of review is the same in cases where the prosecution relies primarily on circumstantial evidence. (People v. Maury (2003) 30 Cal.4th 342, 396; People v. Rodriguez (1999) 20 Cal.4th 1, 11; People v. Stanley (1995) 10 Cal.4th 764, 792; People v. Bloom (1989) 48 Cal.3d 1194, 1208; People v. Bean (1988) 46 Cal.3d 919, 932.) The California Supreme Court has held, “Reversal on this ground is unwarranted unless it appears ‘that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].’” (People v. Bolin, supra, 18 Cal.4th at p. 331, quoting People v. Redmond (1969) 71 Cal.2d 745, 755.)
Defendant, in fact, requests that we reweigh the evidence. As set forth above, our Supreme Court has held that our role is to determine whether substantial evidence supports the decision, not whether the evidence proves guilt beyond a reasonable doubt. (People v. Zamudio (2008) 43 Cal.4th 327, 357; People v. Mincey, supra, 2 Cal.4th at p. 432.) In People v. Guerra (2006) 37 Cal.4th 1067, 1129, our Supreme Court reiterated: “We presume in support of the judgment the existence of every fact the trier could reasonably deduct from the evidence. (People v. Kraft[(2000)] 23 Cal.4th [978, ] 1053.)” (Overruled on another point in People v. Rundle (2008) 43 Cal.4th 76, 151.) The Guerra Court further held: “‘[I]f the circumstances reasonably justify the jury’s findings, the judgment may not be reversed simply because the circumstances might also reasonably be reconciled with a contrary finding.’ (People v. Farnham[(2002)] 28 Cal.4th [107, ] 143.) We do not reweigh evidence or reevaluate a witness’s credibility. (People v. Ochoa, supra, 6 Cal.4th at p. 1206.)” (People v. Guerra, supra, 37 Cal.4th at p. 1129.)
There was substantial evidence to support defendant’s conviction. Both Mr. Simmons and Mr. Pruitt had identified defendant from a photographic lineup in 2005. In addition, Mr. Simmons identified defendant at trial as the person who shot Mr. Slusher. The results of the deoxyribonucleic acid genetic profile based upon the blood found in the Mustang when it was recovered as compared with defendant’s profile were overwhelming. Defendant is an African American. The genetic profile demonstrated the occurrence frequency for African Americans was 1 out of every 16.4 quadrillion. Based on these findings, Mr. Bockrath was convinced that defendant was the source of the blood found in the Mustang and on the nearby sidewalk. When faced with this staggering occurrence frequency, defendant attempted to explain away the coincidence, testifying that he cut his hand in a burning Mustang while trying to steal a radio. The jury could reasonably choose not to believe such a palpably silly story. Moreover, Mr. Smith testified that he shot at the fleeing Mustang. Mr. Smith then followed the person who shot Mr. Slusher, firing additional shots in the Mustang’s direction. Finally, the jurors heard argument from counsel regarding the witness credibility and inconsistencies in their testimony. The jurors were instructed regarding witness testimony and credibility and the factors to consider in proving identity by eyewitness testimony. A reasonable juror could find the circumstantial evidence supported a guilty verdict.
B. Evidentiary Issues
1. Deoxyribonucleic Acid Evidence
Defendant argues that the deoxyribonucleic acid evidence was deceptive. Defendant further argues that because this was a “cold hit” case involving the random match comparison of a deoxyribonucleic acid profile from a database of known offenders, “[T]he odds are lowered and each individual comparison increases the chance of a match to an innocent person.” Defendant concludes, “The danger of implicating an innocent person through a ‘cold hit’ becomes greater where the case is years old.” As defendant readily acknowledges, our Supreme Court recently held: “In a non-cold-hit case, we said that ‘[i]t is relevant for the jury to know that most persons of at least major portions of the general population could not have left the evidence samples.’ (People v. Wilson[(2006)] 38 Cal.4th [1237, ] 1245.) We agree with other courts that have considered the question (the Court of Appeal in this case; People v. Johnson[(2006)] 139 Cal.App.4th 1135; and [U.S. v.] Jenkins [D.C.2005)] 887 A.2d 1013) that this remains true even, when the suspect is first located through a database search. The database match probability ascertains the probability of a match from a given database. ‘But the database is not on trial. Only the defendant is.’ (Modern Scientific Evidence[ (2006) Objections to DNA evidence-presenting incriminating DNA results-Should match probabilities be excluded?-The effect of a database search] § 32:11, [p. 110] pp. 118-119.) Thus the question of how probable it is that the defendant, not the database, is the source of the crime scene DNA remains relevant. (Id. at p. 119.) The rarity statistic addresses this question.” (People v. Nelson (2008) 43 Cal.4th 1242, 1266-1267.) Defendant’s deoxyribonucleic acid contention has no merit.
2. Evidence of Prior Felony Convictions
Defendant argues that the trial court improperly admitted evidence of his unlawful sex with a minor conviction resulting in a denial of his right to a fair trial and due process. Defendant further argues that the “prejudicial effect” of the conviction could have been prevented by “sanitizing” it or not stating the nature of the charge. Defense counsel argued at a bench conference defendant’s prior convictions should be excluded based on the age of the convictions, their relevance and the potential prejudice pursuant to Evidence Code section 352. The trial court reviewed defendant’s prior record and ruled the theft and drug convictions should be excluded. But the trial court ruled the domestic violence and sex with a minor convictions could be admitted for purposes of impeachment only. Thereafter, defendant explained both convictions on direct examination, claiming that he and his “friend’s baby mom” were “messing around with each other and her father found out” about the sexual relationship. Defense counsel then inquired whether defendant had heard of statutory rape. When defendant responded, “Yes”, defense counsel explained “[I]t’s not a rape in the sense of force was used, right?” Defendant responded, “No.” On cross-examination, the prosecutor clarified with defendant that the two prior convictions were felonies.
Evidence Code section 788 provides in pertinent part, “For the purpose of attacking the credibility of a witness, it may be shown by the examination of the witness or by the record of the judgment that he has been convicted of a felony....” The California Supreme Court has determined that the prior conviction is admissible for impeachment only if “the least adjudicated elements of the conviction necessarily involve moral turpitude.” (People v. Castro (1985) 38 Cal.3d 301, 317; see also People v. Williams (2009) 170 Cal.App.4th 587, 607-609; People v. Walker (2006) 139 Cal.App.4th 782, 800.) Moral turpitude has been described as a readiness to do evil, conduct indicating bad character and moral depravity. (People v. Lang (1989) 49 Cal.3d 991, 1009; People v. Castro, supra, 38 Cal.3d at p. 314.) The trial court retains its Evidence Code section 352 discretion to bar impeachment when the probative value of prior convictions is substantially outweighed by their prejudicial effect. (People v. Doolin (2009) 45 Cal.4th 390, 443; People v. Harris (2005) 37 Cal.4th 310, 337; People v. Wheeler (1992) 4 Cal.4th 284, 295; People v. Clair (1992) 2 Cal.4th 629, 654; People v. Castro, supra, 38 Cal.3d at pp. 306-313.) We review that the trial court’s ruling for abuse of discretion. (People v. Harris, supra, 37 Cal.4th at p. 337; People v. Clair, supra, 2 Cal.4th at p. 655; People v. Gordon (1990) 50 Cal.3d 1223, 1239, overruled on another point in People v. Hamilton (2009) 45 Cal.4th 863, 926; People v. Feaster (2002) 102 Cal.App.4th 1084, 1091-1092.)
Preliminarily, defendant’s failure to object to the admissibility of the unlawful sex with a minor conviction on the grounds it was “unsanitized” amounts to a waiver of the issue presented on appeal. The California Supreme Court has held: “‘“[Q]uestions relating to the admissibility of evidence will not be reviewed on appeal in the absence of a specific and timely objection in the trial court on the ground sought to be urged on appeal. [Citation.]”’ [Citations.]” (People v. Williams (2008) 43 Cal.4th 584, 620, quoting People v. Seijas (2005) 36 Cal.4th 291, 301; see People v. Partida (2005) 37 Cal.4th 428, 434-435.) Defendant objected on grounds of similarity of offenses, remoteness, irrelevance, and pursuant to Evidence Code section 352. Defense counsel never moved to exclude the nature of the sex conviction rather than its mere occurrence.
In any event, the trial court could properly admit the prior sex with a minor conviction for impeachment purposes. The offense was a felony involving moral turpitude relevant to the issue of his credibility. (People v. Harris, supra, 37 Cal.4th at p. 337; People v. Wheeler, supra, 4 Cal.4th at p. 295; People v. Castro, supra, 38 Cal.3d at p. 315; People v. Williams, supra, 170 Cal.App.4th at p. 607-608.) The trial court carefully reviewed all of defendant’s prior felony convictions, eliminated those related to car theft and drug sales because of their age and the similarity to the present case which involves the armed theft of a Mustang automobile. The trial court further inquired regarding how the prosecutor would use the prior convictions and allowed their admission for impeachment purposes alone. No abuse of discretion occurred.
Moreover, any error in admitting such evidence was harmless. (People v. Ayala (2000) 23 Cal.4th 225, 271; People v. Watson (1956) 46 Cal.2d 818, 836.) The jurors were instructed with CALJIC No. 2.23 regarding the fact that a witness has been convicted of a felony may be considered only for the purpose of determining the believability of that person. The California Supreme Court has consistently stated that on appeal: “‘“Jurors are presumed to be intelligent, capable of understanding instructions and applying them to the facts of the case.”’ [Citation.]” (People v. Carey (2007) 41 Cal.4th 109, 130, quoting People v. Lewis (2001) 26 Cal.4th 334, 390; People v. Yeoman (2003) 31 Cal.4th 93, 139; People v. Bradford (1997) 15 Cal.4th 1229, 1337; People v. Osband, supra, 13 Cal.4th at p. 714; People v. Kemp (1961) 55 Cal.2d 458, 477; see Cassim v. Allstate Ins. Co. (2004) 33 Cal.4th 780, 803.) In addition, as noted above, defendant was able to testify regarding the circumstances of those offenses in an effort to minimize their significance.
C. Sentencing Issues
1. Overview
We asked the parties to address several sentencing issues in this case that are related to the October 31, 1993 murder and subsequent legislation regarding presentence conduct credits, a fine, a fee and an assessment. We conclude certain post-October 31, 1993 legislative enactments apply to this case. We thus modify the judgment in the following respects.
2. Presentence Custody Credits
When sentenced on May 5, 2009, defendant was given no presentence conduct credits. This appears to be in error. Section 2933.2, subdivision (c) prohibits the grant of presentence conduct credits pursuant to section 4019 when the defendant is convicted of murder. However, Penal Code section 2933.2, subdivision (c) cannot apply to defendant because the murder occurred prior to enactment of section 2933.2, subdivision (c). (People v. Cooper (2002) 27 Cal.4th 38, 40, fn. 2; People v. Ly (2001) 89 Cal.App.4th 44, 47.) Thus, the trial court could not outright deny any conduct credits.
Our next inquiry is whether the section 2933.1, subdivision (c) 15 percent limitation of presentence conduct credits applies to defendant. We conclude it does not. Section 2933.1, subdivision (c) became effective September 21, 1994. (Stats. 1994, ch. 713, § 1.) By its express terms, Penal Code section 2933.1 does not apply to crimes committed prior to its effective date. (§ 2933.1, subd. (d).) Since Mr. Slusher was murdered on October 31, 1993, the 15 percent limitation set forth in section 2933.1, subdivision (c), does not apply in this case either. Therefore, defendant is entitled to 550 days of presentence conduct credits pursuant to section 4019.
3. Fines, fees and assessments
a. Section 1202.45 parole restitution fine
At sentencing, the trial court imposed and stayed a section 1202.45 parole restitution fine. The section 1202.45 parole restitution fine is subject to ex post facto restrictions. (People v. Flores (2009) 176 Cal.App.4th 1171, 1181-1182; People v. Callejas (2000) 85 Cal.App.4th 667, 676.) Section 1202.45 became effective August 3, 1995. (Stats. 1995, ch. 313, §§ 6, 24.) As a result, the imposition of the section 1202.45 parole restitution fine is reversed.
b. Section 1465.8, subdivision (a)(1) court security fee
The trial court did not impose a Penal Code section 1465.8, subdivision (a)(1) court security fee. Even though Mr. Slusher was murdered prior to the August 17, 2003 effective date of the enactment Penal Code section 1465.8, subdivision (a)(1), the court security fee applies to defendant. (People v. Alford (2007) 42 Cal.4th 749, 753-759; People v. Wallace (2004) 120 Cal.App.4th 867, 871-879.) Thus, the judgment must be modified to add the $20 Penal Code section 1465.8, subdivision (a)(1) court security fee, which was the amount to be assessed on the date of the May 5, 2009 sentencing. (Stats. 2003, ch. 159, §§ 25-27.) The trial court is to actively and personally insure the clerk accurately prepares a correct amended abstract of judgment.
IV. DISPOSITION
The judgment is modified to: award 550 days of presentence conduct credit pursuant to Penal Code section 4019; reverse the Penal Code section 1202.45 parole restitution fine; add a $20 Penal Code section 1465.8, subdivision (a)(1) court security fee; and, add a $30 Government Code section 70373, subdivision (a)(1) court facilities fee. The judgment is affirmed in all other respects. Upon issuance of the remittitur, the superior court clerk shall prepare an amended abstract of judgment reflecting these modifications and forward a copy to the California Department of Corrections and Rehabilitation.
We concur: ARMSTRONG, J.KRIEGLER, J.