Opinion
A095645. A101919.
10-29-2003
THE PEOPLE, Plaintiff and Respondent, v. REGINALD SMITH, Defendant and Appellant. In re REGINALD SMITH on Habeas Corpus.
Reginald Smith appeals from a judgment of conviction upon a jury verdict finding him guilty of first degree murder with the special circumstance that the murder was committed during the course of a rape (Pen. Code, §§ 187, 190.2, subd. (a)(17)(C)). The trial court sentenced defendant to the term of life without the possibility of parole. On appeal, defendant contends that the trial court committed numerous evidentiary errors, and that it erred in denying his motions for a continuance and mistrial and in its instructions to the jury. He also claims that the prosecutor committed misconduct in closing argument and that the sentence imposed was unconstitutional. In a separate petition for writ of habeas corpus, which we consolidated with this appeal, defendant again raises the issue of prosecutorial misconduct and argues that his trial counsel was ineffective. We affirm the judgment and deny the petition.
I. FACTS
On the morning of February 25, 1998, Officer Flecklin responded to a call for medical assistance at 1010 Center Street in Oakland. Officer Flecklin interviewed J. S., a four-year-old boy, who was at the scene. J. S. told Flecklin that he watched television with his mother the previous evening before falling asleep. When he awoke in the morning, he was thinking about watching cartoons but found that the television set was missing. He found his mother, Kyla Thomas, in the bathroom and tried to wake her up but she was unresponsive. Charlene Young, Thomass friend, then called. J. S. told her about his mother and Young called 911.
Flecklin found Kyla Thomas lying on her bathroom floor wearing a pajama top that was open exposing her chest. Thomass pajama bottoms were down, with one pant leg around the ankle. An evidence technician subsequently found several buttons that matched in the bathroom. Two buttons were found underneath Thomas, one was found in the bathtub and another was located on the floor. Several fingerprints were also found at the scene including seven in close proximity to Thomass body.
Flecklin found no signs of forced entry. He did, however, find signs of drug use and drug paraphernalia in the bathroom.
The autopsy revealed that Thomas died of manual strangulation. The medical examiner found dried semen on Thomass inner thighs and in her pubic region and bruises on her legs. The semen had dried within minutes and in such a manner to suggest that Thomas was lying on her back during the sexual intercourse. The examiner found no signs of trauma to Thomass vagina but this did not preclude a finding of rape. A sample of Thomass blood tested positive for cocaine. The medical examiner determined that the cocaine was most likely ingested within six hours of her death.
Sergeant Haney was the investigating officer. He responded to the scene and observed Thomas lying on the bathroom floor. Based on the evidence at the scene including the location of the semen on Thomass thighs that suggested she had not moved, Haney opined that whoever had sex with Thomas killed her.
In the course of his investigation, Haney learned that Thomas had been involved in a romantic relationship with Young. Young purchased a television set for Thomas and gave it to her in 1997. It was the same television set that was missing from the apartment on the morning following the murder. Haney also determined that Elmore Briggs, Ronnie Powell, Michael Willis, and Brian Brice were associated with the victim and were possible suspects in the case. In searching Thomass apartment, Haney found documents belonging to Powell.
Haney interviewed J. S., the victims son, on March 16, 1998, and June 18, 1998. J. S. identified Willis as a man he saw his mother struggling with on the evening before the murder. J. S. saw Thomas stab Willis in the leg with a kitchen knife. Haney testified that his impression of J. S. was that he was going though trauma, grief and "[t]here was the issue of him possibly being recently sexually molested." Haney subsequently interviewed Willis who admitted that he was at Thomass apartment the evening before the murder. Williss fingerprints were not found at the scene.
On March 13, 1998, Young told Haney that "Anthony" who was dating Erica Jones, who lived about a block away from Thomass apartment, might know something about the television. On March 23, 1998, Young told Haney that Joness boyfriends correct name was Reggie. Haney subsequently determined that Reggies last name was Smith. Through further investigation, Haney located defendant in the Santa Rita county jail.
On April 28, 1998, Haney interviewed defendant. Defendant admitted that he had a prior relationship with Jones who lived at 1448 11th Street and that he knew Thomas. He had heard about Thomass murder on the street. He told Haney that he saw Thomas on February 24, 1998, the evening before she was murdered. He said that he walked by her apartment and saw her at the front window. Thomas spoke to him through the window and asked for either a flight or a cigarette. Defendant did not give anything to Thomas. He told Haney that he had never had sex with Thomas and that he did not know the whereabouts of her television.
A flight is a hit off a cocaine base pipe.
Haney subsequently learned that semen was recovered from Thomass body. DNA (deoxyribonucleic acid) testing eliminated Briggs and Powell as possible donors of the semen. Haney thereafter sought samples from defendant and Willis, another possible suspect. Based on DNA testing, defendant could not be excluded as the donor of the semen found on Thomass body.
Haney also learned that several fingerprint lifts from the crime scene belonged to defendant. Seven of defendants prints were located about 9 inches apart approximately 10 to 16 inches from Thomass throat in the position she was found on the bathroom floor.
Pamela Sartori, a criminalist for the Oakland Police Department, testified as an expert in DNA analysis. Using the polymerase chain reaction (PCR) DNA testing system, she opined that defendants DNA profile matched that of the semen found on the victim. She further testified that the frequency of that DNA profile occurs in one in 16,500 African-Americans and in one in 20,000 Caucasians. Sartori also testified that short tandem repeats, a new technology for conducting DNA tests that could narrow the probability of finding a match of a DNA profile to one in a million or one in a trillion, was now available. She noted that in this case there was sufficient semen evidence available for retesting of DNA.
In defense, defendant sought to show that others could have committed the murder. In particular, the defense attempted to demonstrate that Powell, whose palm print was found over the toilet at the scene, or Willis, who argued with Thomas on the evening before the murder, was the perpetrator. In closing argument, defense counsel argued that the police had not checked to see whether Williss DNA excluded him as a suspect.
The defense called Powell as a witness. Out of the presence of the jury, Powell invoked his privilege against self-incrimination.
II. THE APPEAL
A. Exclusion of Powells Pretrial Statement
Defendant contends that the trial court erred in excluding evidence of Powells pretrial statement to Haney. Defendant sought to admit evidence of the tape of Powells pretrial statement as a declaration against penal interest pursuant to Evidence Code section 1230 after Powell invoked his privilege against self-incrimination at trial. The trial court properly ruled to exclude the evidence.
Under Evidence Code section 1230, "[e]vidence of a statement by a declarant having sufficient knowledge of the subject is not made inadmissible by the hearsay rule if the declarant is unavailable as a witness and the statement, when made, . . . so far subjected him to the risk of civil or criminal liability . . . that a reasonable man in his position would not have made the statement unless he believed it to be true." "A party who maintains that an out-of-court statement is admissible under this exception as a declaration against penal interest must show that the declarant is unavailable, that the declaration was against the declarants penal interest, and that the declaration was sufficiently reliable to warrant admission despite its hearsay character." (People v. Cudjo (1993) 6 Cal.4th 585, 607.)
"In order for a statement to qualify as a declaration against penal interest the statement must be genuinely and specifically inculpatory of the declarant; this provides the `particularized guarantee of trustworthiness or `indicia of reliability that permits its admission in evidence without the constitutional requirement of cross-examination." (People v. Greenberger (1997) 58 Cal.App.4th 298, 329.) "To determine whether a declaration against interest is trustworthy, the trial court `must look to the totality of the circumstances in which the statement was made, whether the declarant spoke from personal knowledge, the possible motivation of the declarant, what was actually said by the declarant and anything else relevant to the inquiry. [Citations.] [Citation.]" (People v. Bryden (1998) 63 Cal.App.4th 159, 175; see also People v. Lucas (1995) 12 Cal.4th 415, 462.) "The test imposed is an objective one—would the statement subject its declarant to criminal liability such that a reasonable person would not have made the statement without believing it true." (People v. Jackson (1991) 235 Cal.App.3d 1670, 1678.) Our high court has also declared "the exception to the hearsay rule relating to evidence of declarations against interest set forth in section 1230 of the Evidence Code to be inapplicable to evidence of any statement or portion of a statement not itself specifically disserving to the interests of the declarant." (People v. Leach (1975) 15 Cal.3d 419, 441; see also People v. Wilson (1993) 17 Cal.App.4th 271, 275-276.) Those statements or portions of statements not specifically disserving are characterized as "collateral" statements and inadmissible. (People v. Leach, supra, 15 Cal.3d at pp. 440-441, fn. 17.)
Here, defendant sought to introduce the statement of Powells questioning by Haney and Sergeant Williams to show that Powell admitted killing Thomas. Powells statements, however, were not admissions, but simply sarcastic responses to statements by others who implicated him in the murder. The following colloquy is illustrative: "[Sergeant Williams]: But then you joked about you killing her. [¶] [Powell]: Yeah. [¶] [Williams]: Why would you joke with someone about killing her? [¶] [Powell]: It wasnt a joke . . . It was no joke. [¶] [Williams]: So it was the truth? [¶] [Powell]: No, it wasnt the truth. [¶] [Williams]: What was it then? [¶] [Powell]: I was just saying yeah right. [¶] [Williams]: What would you call that? Was it a joke? Well what would cause you to say or tell somebody . . . . [¶] [Powell]: When somebody keeps going say yeah right, is that joking . . . . [¶] . . . [¶] [Williams]: Then why would you tell [Briggs] that you killed her. [¶] [Powell]: He asked me. He asked me. [¶] [Williams]: So you said yeah I killed her. [¶] [Powell]: Yeah right. . . . [¶] . . . [¶] [Williams]: How did you say it? [¶] [Powell]: Yeah right. [¶] [Williams]: What did he say? [¶] . . . [¶] [Powell]: I dont know what he said. [¶] [Williams]: Well he asked if you killed her? [¶] [Powell]: Well of course, he [going] to ask me because I be with her all the time. [¶] [Williams]: Right. And your response was? [¶] [Powell]: Yeah right. [¶] [Williams]: Okay so you said you did. [¶] [Powell]: No. [¶] [Williams]: You said you did it then. [¶] [Powell]: I said I did in a joking way, I did it . . . what you talking about? You trying to throw it on me or something? [¶] [Sergeant Haney]: Was it more like sarcasm rather than . . . . [¶] [Powell]: It was like `Yeah right. Like that. [¶] [Williams]: And who else did you tell this to? [¶] [Powell]: Gina. Brenda. Some other people I told it to. [¶] [Williams]: What did you tell Gina? [¶] [Powell]: Yeah right. [¶] [Williams]: So did you kill, did you kill Kyla? [¶] [Powell]: Yeah right. [¶] [Williams]: Why would you joke about something like that? [¶] [Powell]: Im saying `yeah right. [¶] [Williams]: Why would you joke about something like that? [¶] [Powell]: Thats not . . . You think thats a joke, its not telling the truth, I mean I aint . . . saying I killed her. [¶] [Williams]: Pardon me? [¶] [Powell]: I didnt kill her. [¶] [Williams]: Why would you tell people you did? [¶] [Powell]: I aint telling people I did. I said, `Yeah right. Is that telling people I did, `Yeah RIGHT, sarcastically. Come on now, sometime you say, `Yeah right. Come on now. Just because I tell you you going to use that against me . . . ."
Powells statement did not contain any statements against his penal interest or adoptive admissions. To the contrary, the audiotape of the statement demonstrates that when responding to the accusations by others, Powell was simply making sarcastic remarks and was not admitting that he killed Thomas. His sarcastic statements did not subject him to criminal liability and hence were inadmissible under Evidence Code section 1230. The statements did not meet the required threshold of trustworthiness. "[A]ssessing trustworthiness `"requires the court to apply to the peculiar facts of the individual case a broad and deep acquaintance with the ways human beings actually conduct themselves in the circumstances material under the exception." [Citation.]" (People v. Duarte (2000) 24 Cal.4th 603, 614.) Here, examining Powells statements in full, it is evident that the statements were not uttered with the intent to take responsibility for the murder but rather to make light of the accusations against him. The trial court properly excluded the statements.
The court also correctly determined that Powells admission that he was at Thomass apartment on the evening before the murder was not admissible. Powells statement was inconsistent on this point. Powell, who dated Thomas for two weeks before the murder, admitted he was at the apartment on Tuesday, February 24, then later stated that he was there between 6:00 and 7:00 the evening of the 24th, and subsequently that he passed by the apartment around midnight but no one answered. His statement placing him at the scene, however, did not constitute a declaration against penal interest. (People v. Phillips (2000) 22 Cal.4th 226, 237 [mere presence at crime scene is not a crime].) Finally, Powells statements about his activities on the evening before the murder and his statement that he did not attend Thomass funeral because he wanted to avoid the police were not declarations against penal interest. The hearsay exception of Evidence Code section 1230 was, therefore, inapplicable to these statements. (People v. Leach, supra, 15 Cal.3d at pp. 440-441.)
The court properly excluded the evidence.
Alternatively, defendant argues that even if Powells statement was inadmissible under Evidence Code section 1230, the courts exclusion of the statement denied him his constitutional right to due process because the statement was crucial to his defense. He relies on Chia v. Cambra (9th Cir. 2002) 281 F.3d 1032, 1037. The United States Supreme Court granted certiorari in Chia, vacated the judgment and remanded the matter to the Ninth Circuit (sub nom. McGrath v. Su Chia (2003) ___ U.S. ___ [123 S.Ct. 1510; 155 L.Ed.2d 221]) in light of the decision in Lockyer v. Andrade (2003) 538 U.S. ___ [123 S.Ct. 1166; 155 L.Ed.2d 144]. Chia, therefore, has no precedential value. Nonetheless, its holding that the exclusion of a hearsay statement that bore persuasive assurances of trustworthiness and was critical to the defense may rise to a constitutional due process violation (see Chambers v. Mississippi (1973) 410 U.S. 284, 302 [hearsay rule may not be applied to deprive defendant of right to present exculpatory evidence]) is of no assistance to defendant.
Powells statement was not crucial to the defense. Powell did not implicate himself in the murder; rather his responses throughout the statement indicated that he was joking when he responded to others, "yeah right" when they accused him of killing Thomas. Hence, the statement was not probative on the central issue of the defense that a third person was culpable for the murder. Nor did the statement bear strong indicia of reliability or trustworthiness. It was not against Powells penal interest and was at a minimum, double hearsay. Moreover, his statements placing him near the scene were tangential and of minimum probative value, particularly since there was already evidence before the jury that papers belonging to Powell were found in Thomass apartment and that his palm print was found in her bathroom. In sum, defendant was not denied due process by the courts exclusion of the evidence.
B. Denial of Continuance
Defendant contends that the trial courts refusal to grant a continuance was an abuse of discretion. We conclude that the trial court properly denied the request.
The trial court has broad discretion in determining whether good cause exists to grant a continuance of the trial. (Pen. Code, § 1050, subd. (e).) "A showing of good cause requires a demonstration that counsel and the defendant have prepared for trial with due diligence. [Citations.] When a continuance is sought to secure the attendance of a witness, the defendant must establish `he had exercised due diligence to secure the witnesss attendance, that the witnesss expected testimony was material and not cumulative, that the testimony could be obtained within a reasonable time, and that the facts to which the witness would testify could not otherwise be proven. " (People v. Jenkins (2000) 22 Cal.4th 900, 1037, quoting People v. Howard (1992) 1 Cal.4th 1132, 1171.) In exercising its discretion, the court must consider "`not only the benefit which the moving party anticipates but also the likelihood that such benefit will result, the burden on other witnesses, jurors and the court and, above all, whether substantial justice will be accomplished or defeated by a granting of the motion. . . . " (People v. Zapien (1993) 4 Cal.4th 929, 972, quoting People v. Laursen (1972) 8 Cal.3d 192, 204.)
Here, the record demonstrates that defendant failed to meet his burden of demonstrating good cause. At the time this case was called for trial, defendant had been in custody for over two and a half years and had been represented by trial counsel since October 23, 1998, the day following his arrest. The case had previously been continued with counsel representing that he needed additional time to prepare for the case and that his investigator would work on the case as needed. At trial, defendant waited until after the People rested to move for a continuance. He then argued that he needed a continuance of three days in order to "attempt to find" several witnesses including Powell and Willis. He argued that the courts ruling on excluding evidence of Powells statement and the statements of others as hearsay now required him to present these witnesses. Defense counsel acknowledged that he had not previously attempted to locate the witnesses. The court denied the request, noting that the possibility of locating the witnesses was remote.
The record shows that defendant raised the issue of a continuance the previous day but said that he was not going to request one "yet." The court noted that the defense was aware of Briggs, Powell and Willis "since the beginning of this case. There was no promise that the D.A. was going to bring [them] in. And you have access to investigators just as they do. So you still have time between now and the time for your case to be presented but Im not going to grant any continuances to find these people. Weve known these people. Theyve existed in the police report. Im assuming everybodys been talking about them since 1998. [¶] So if you havent found those three people, and you have the subpoena powers of the court as well as [the prosecutor], you can have investigators go out and look just as he can. So Im not going to grant the continuance at this point."
Defendant had sought to elicit the pretrial statements of the witnesses through cross-examining Sergeant Haney.
The trial court did not abuse its discretion in denying the motion for a continuance. The record shows that defendant was less than diligent in securing the attendance of witnesses; and there is nothing in the record to show that had the court granted the request, he would have been able to locate and present the witnesses at trial. (See People v. Howard, supra, 1 Cal.4th at p. 1171 [good cause for continuance not shown where defendant not diligent in securing witnesss attendance and could only offer the prospect of further delay while he searched for witness].) Indeed, the court noted that it was unlikely that the witnesses would be found as "these are people who do not want to be found." Moreover, defendant failed to show that the witnesses he sought to present would say anything helpful or material to the defense. (See People v. Zapien, supra, 4 Cal.4th at pp. 972-973 [no abuse of discretion in denying continuance where record did not show that additional investigation defense sought to conduct would provide relevant evidence].) Under these circumstances, the trial court acted well within its discretion in denying the requested continuance.
C. Motion for Mistrial
Defendant next contends that the trial court erred in denying his motion for a mistrial on the grounds that he was deprived of the effective assistance of counsel due to his counsels failure to locate and subpoena witnesses in a timely manner.
Following the trial courts denial of defendants request for a continuance, defense counsel moved for a mistrial, arguing that his failure to subpoena witnesses constituted incompetence. The trial court denied the motion, finding that she did not believe defense counsels representation that he did not have an alternative strategy in the event the court ruled as it did on defendants attempt to elicit details of witnesses pretrial statements to Haney. In denying defense counsels claim of ineffectiveness, the court remarked, "You dont sit up and base your whole defense on one ruling. You dont base anything on one thing. You know thats not the way things are done, and I dont believe for one minute that you did that." The court, apparently familiar with defense counsel, also stated, "this is the same stuff you say every single time." " `A mistrial should be granted if the court is apprised of prejudice that it judges incurable by admonition or instruction. [Citation.] Whether a particular incident is incurably prejudicial is by its nature a speculative matter, and the trial court is vested with considerable discretion in ruling on mistrial motions. " (People v. Hines (1997) 15 Cal.4th 997, 1038.) Here, the trial court did not abuse its discretion in denying defendants mistrial motion based on his defense counsels alleged incompetence. The burden was on defendant to prove that his counsel was incompetent. (People v. Lewis (1990) 50 Cal.3d 262, 288.) To establish entitlement to relief for ineffective assistance of counsel, the defendant must show that "(1) trial counsel failed to act in the manner to be expected of reasonably competent attorneys acting as diligent advocates and (2) it is reasonably probable that a more favorable determination would have resulted in the absence of counsels failings." (Ibid.) Defendants claim that his counsel was ineffective fails because the record does not support his claim that the witnesses counsel failed to subpoena could be found, that they would have appeared, or that their testimony would have been material. Rather, even defense counsel intimated that the witnesses were unlikely to exculpate defendant. In fact, Powell, whom defense counsel eventually located, invoked his Fifth Amendment privilege against self-incrimination. And the trial court, which was familiar with defense counsel, believed that counsels strategy was simply a ploy to set up an issue for appeal. (See People v. Aubrey (1999) 70 Cal.App.4th 1088, 1104, disapproved on other grounds in People v. Rubalcava (2000) 23 Cal.4th 322, 334, fn. 8 [trial court was in best position to evaluate counsels performance].) On this record, the trial court properly denied the motion for mistrial.
D. Hearsay Evidence
Defendant argues that the trial court erred in admitting evidence through Sergeant Haney that Charlene Young said a man later identified as defendant might know something about the television missing from the victims apartment. Defendant, however, failed to object to the admission of this testimony below and has, therefore, waived the issue on appeal. (People v. Zapien, supra, 4 Cal.4th at p. 979.)
"Evidence Code section 353, subdivision (a), provides that a judgment shall not be reversed because of the erroneous admission of evidence unless there was a timely objection `so stated as to make clear the specific ground of the objection . . . . `The reason for the requirement is manifest: a specifically grounded objection to a defined body of evidence serves to prevent error. It allows the trial judge to consider excluding the evidence or limiting its admission to avoid possible prejudice. . . . [Citation.]" (People v. Zapien, supra, 4 Cal.4th at p. 979.)
Recognizing that his trial counsel failed to object to the evidence below, defendant contends that he was denied the effective assistance of counsel. This argument lacks merit.
"A judgment will not be reversed based on denial of effective representation unless there is a reasonable probability that, but for counsels failings, the result would have been more favorable to the defendant." (People v. Zapien, supra, 4 Cal.4th at p. 981.) The Attorney General concedes that the evidence was hearsay but asserts that it was admissible to explain the course of Haneys investigation and Haneys state of mind. The evidence, however, was not offered for that limited purpose and there was no limiting instruction given to the jury. And, the fact that Haney sought to question defendant was not at issue in the case. (See People v. Lucero (1998) 64 Cal.App.4th 1107, 1110 [error to admit testimony by officer of witnesss statement when reasonableness of officers decision to act upon witnesss statement not at issue].) Although the evidence was hearsay and irrelevant to any issue in the case, the error in admitting the evidence was harmless. The evidence was not the critical evidence linking defendant to the murder. DNA and fingerprint evidence provided the crucial evidence in this case. Defendant was not prejudiced by the admission of the hearsay evidence.
Defendant also complains about the trial courts admission of evidence that Charlene Young was threatened. Defendant objected to Haneys testimony that Young told him she received a threat because she had been asking too many questions in the neighborhood about the murder. The trial court admitted the evidence for the limited purpose of explaining the conduct of Haneys investigation.
"A hearsay objection to an out-of-court statement may not be overruled simply by identifying a nonhearsay purpose for admitting the statement. The trial court must also find that the nonhearsay purpose is relevant to an issue in dispute. [Citation.]" (People v. Armendariz (1984) 37 Cal.3d 573, 585.) Here, while the evidence might have been relevant to explain Haneys state of mind in the investigation, his state of mind at that point in the investigation was not a contested issue in the case. In addition, the evidence was potentially more prejudicial than probative. But any error in admitting the evidence was harmless. The jury was admonished to consider the evidence only for the limited purpose of explaining Haneys conduct in the investigation. And, the evidence connecting defendant with the murder was far more persuasive and probative than the threat statement; it could not have had any cognizable effect upon the jury.
E. Evidence of Defendants Incarceration
Defendant next contends that the trial court erred in admitting evidence that defendants hair and saliva samples and blood were taken by San Quentin personnel, that Haney questioned defendant at the Santa Rita jail, and in admitting evidence of defendants booking photo. He further argues his trial counsel was ineffective for failing to move in limine to exclude this evidence.
Suzanne Paulsen was the registered nurse at San Quentin who was responsible for obtaining hair and pubic hair samples from defendant. When she began her testimony and stated where she worked, defendant objected. He also objected to Jose Tejadas testimony that he was a San Quentin medical technologist. The trial court overruled the objections. In explaining his objections for the record, defense counsel argued that "these witnesses put Mr. Smith into San Quentin, and the jury of course isnt supposed to know things like that." The court noted, however, that this was an issue for a motion in limine and that given that this was a DNA/fingerprint case, the parties were aware that there were chain of custody issues and, therefore, overruled defendants objections to the evidence. Defense counsel then acknowledged he had failed to "index" the witnesses properly and, therefore, did not realize they would place defendant in San Quentin until they began their testimony. The court indicated that it would be amenable to giving a curative instruction to the jury.
Through Haneys testimony, the prosecution subsequently introduced defendants booking photo into evidence and the fact that defendant was in Santa Rita jail at the time Haney questioned him. Defendants objection to the booking photo evidence was overruled. The court admonished the jury that "anything that you hear concerning the custodial status of Reginald Smith during the time of the interview with Sergeant Haney on April 28, [1998], and at the time blood was drawn or hair samples were taken on June 25th, 1998, such information is not to be considered by you for any purpose and you are not to speculate as to why Reginald Smith was in custody at that time."
The court repeated this admonition to the jury in its final instructions.
It is well settled that the introduction of a booking photo of the defendant into evidence may "carry the inevitable implication that appellant suffered previous arrests and perhaps convictions" and constitutes error. (People v. Vindiola (1979) 96 Cal.App.3d 370, 384; People v. Cook (1967) 252 Cal.App.2d 25, 29-31.) As with booking photos, evidence that a defendant was incarcerated in state prison makes " `the difference between the trial of a man presumptively innocent of any criminal wrongdoing and the trial of a known convict. " (See People v. Vindiola, supra, 96 Cal.App.3d at p. 384, quoting United States v. Reed (7th Cir. 1967) 376 F.2d 226, 228.) The issue of how best to present the chain of custody evidence without disclosing defendants custodial status could properly have been dealt with had counsel raised the issue in an in limine motion. Counsels omission in raising the issue, however, was not prejudicial to defendant based on the entire record.
For example, defendant notes that he could have stipulated to the chain of custody of his blood.
Any error in admitting the evidence was harmless given the courts admonition to the jury not to consider or speculate about defendants custodial status. We must presume that the jury followed the courts instructions. (People v. Horton (1995) 11 Cal.4th 1068, 1121.) Moreover, it is not reasonably probable that a more favorable result to defendant would have been reached in the absence of the error (People v. Watson (1956) 46 Cal.2d 818, 836) in the face of the overwhelming evidence—specifically, defendants DNA and fingerprints—that defendant committed the crime.
F. Instructional Error
1. Mayberry Instruction
Defendant contends that the trial court erred in failing to instruct sua sponte pursuant to People v. Mayberry (1975) 15 Cal.3d 143, 155, that a defendants reasonable and good faith mistake of fact regarding a persons consent to sexual intercourse is a defense to rape.
"The Mayberry defense has two components, one subjective, and one objective. The subjective component asks whether the defendant honestly and in good faith, albeit mistakenly, believed that the victim consented to sexual intercourse. In order to satisfy this component, a defendant must adduce evidence of the victims equivocal conduct on the basis of which he erroneously believed there was consent. [¶] In addition, the defendant must satisfy the objective component, which asks whether the defendants mistake regarding consent was reasonable under the circumstances." (People v. Williams (1992) 4 Cal.4th 354, 360-361, fn. omitted.) "[B]ecause the Mayberry instruction is premised on mistake of fact, the instruction should not be given absent substantial evidence of equivocal conduct that would have led a defendant to reasonably and in good faith believe consent existed where it did not." (Id. at p. 362.) Thus, the instruction is not warranted if the defense presents evidence of unequivocal consent and the prosecutions evidence is of nonconsensual forcible sex. (Ibid. )
Defendant concedes that he did not argue below that he had a reasonable belief in Thomass consent, but argues that the evidence nonetheless supported the instruction. The instruction, however, was not warranted on the evidence before the jury. There was no evidence of equivocal consent. To the contrary, the jury was asked to decide either that Thomas consented to intercourse or that defendant forcibly raped her. "[U]nless the evidence reveals some way to harmonize the conflicting accounts of defendant and prosecutrix through a mistake of fact, so that the jury can evaluate proof relating to defendants belief in consent (as distinguished from his mere assertion of consent), the court need not give the reasonable belief instruction sua sponte." (People v. Rhoades (1987) 193 Cal.App.3d 1362, 1369-1370.)
2. Specific Intent to Rape Instruction
Defendant next argues that the trial court erred in failing to define the specific intent to rape. He asserts that an instruction was required to inform the jury of the differences between the general criminal intent necessary for the crime of rape, and the specific intent to rape required for the crime of first degree felony murder.
Our Supreme Court rejected defendants argument that the rape and felony murder instructions were contradictory and confusing and approved of the instructions given here in People v. Osband (1996) 13 Cal.4th 622, 685-586: "Rape is a general intent crime. [Citation.] As the jury was informed in the instruction defining rape, performing a proscribed act was enough to violate the law. To find that felony murder occurred, however, the jury was required also to find `specific intent. We discern no reasonable likelihood that the jury would understand the requirement of `specific intent in the felony-murder charge to mean anything but the mental state of the purpose to achieve some goal—i.e., intent. There is no reasonable likelihood that the jury would understand that the term `specific intent might mean something else [citations]. Therefore defendant received more than he was entitled to when the jury was instructed on the `specific intent to commit the underlying felony of rape." The court has also rejected the argument that a court is required to define specific intent. (People v. Bloyd (1987) 43 Cal.3d 333, 356.) Accordingly, we reject defendants contention here.
3. Second Degree Murder Instruction
The jury was instructed that the crime of second degree murder is "the unlawful killing of a human being with malice aforethought when the perpetrator intended unlawfully to kill a human being but the evidence is insufficient to prove deliberation and premeditation." Defendant acknowledges that the jury received several instructions defining malice. He contends, nonetheless, that the language referring to deliberation and premeditation was confusing to the jury since those elements were not a part of the first degree murder charge. We are not persuaded. The jury was instructed on first degree felony murder (CALJIC No. 8.21), the differences between murder and manslaughter (CALJIC No. 8.50), murder (CALJIC No. 8.10), and malice aforethought (CALJIC No. 8.11). In determining whether an instructional error occurred, we must consider the instructions as a whole and the trial record. (People v. Cain (1995) 10 Cal.4th 1, 36; People v. Kegler (1987) 197 Cal.App.3d 72, 80.) "We must also assume that the jurors are intelligent persons and capable of understanding and correlating all jury instructions which are given." (People v. Kegler, supra, 197 Cal.App.3d at p. 80.) In light of the specific instructions given to the jury on the murder theories, we cannot conclude there is a reasonable likelihood that the jury misunderstood the instruction as defendant asserts.
G. Prosecutorial Misconduct
Defendant contends that the prosecutor committed misconduct during his rebuttal argument by arguing that the presumption of innocence "no longer exists." The prosecutor argued as follows: "When you came into this courtroom and you were seated back there with 90 other people, Mr. Smith was presumed innocent. What [defense counsel] has asked you to do is to continue that presumption of innocence today. Its not possible. Because when he came in here and he was dressed and you didnt know anything about the evidence, he was presumed innocent. [¶] . . . [¶] But as each and every single piece of evidence was presented in this case, you can remove his tie, you can remove his shirt, you can remove his pants, you can remove his shoes, and there you have Reginald Smith, exposed and naked, guilty. Thats where we are today. Presumption of innocence no longer exists." The trial court overruled defendants objections to this argument.
"The applicable federal and state standards regarding prosecutorial misconduct are well established." (People v. Samayoa (1997) 15 Cal.4th 795, 841.) A prosecutor is given wide latitude during argument. (People v. Wharton (1991) 53 Cal.3d 522, 567.) The argument may be vigorous as long as it amounts to fair comment on the evidence. (Ibid.) "A prosecutors . . . intemperate behavior violates the federal Constitution when it comprises a pattern of conduct `so egregious that it infects the trial with such unfairness as to make the conviction a denial of due process. [Citations.] But 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 court or the jury." [Citations.]" (People v. Espinoza (1992) 3 Cal.4th 806, 820.) Prosecutorial misconduct requires reversal only when, viewing the record as a whole, it results in a miscarriage of justice. (People v. Green (1980) 27 Cal.3d 1, 29.)
In People v. Goldberg (1984) 161 Cal.App.3d 170, 189-190, the court rejected a similar claim of prosecutorial misconduct where the prosecutor argued in summation that " `once the evidence is complete . . . once the case has been proven to you . . . . There is no more presumption of innocence. . . . " (Italics omitted.) The court held that the prosecutors remarks, while rhetorical, essentially restated the law as reflected in Penal Code section 1096 and CALJIC No. 2.90 that a defendant is presumed innocent until the contrary is proved. Here, as well, the prosecutors remarks were essentially a recitation that the People had met their burden of proving defendant guilty beyond a reasonable doubt and did not constitute misconduct. In any event, we note that the jury was instructed in the language of CALJIC No. 2.90, and both parties reminded the jury during closing argument of the Peoples burden of proving defendants guilt beyond a reasonable doubt. We must presume that the jury followed the courts instruction. (People v. Nguyen (1995) 40 Cal.App.4th 28, 36-37.)
Defendant also faults the courts use of CALJIC No. 2.90s language that "[a] defendant in a criminal action is presumed innocent until the contrary is proved." (Italics added.) He argues that the term, until, is improper because it suggests inevitability. Our Supreme Court rejected this argument in People v. Lewis (2001) 25 Cal.4th 610, 651-652. We are bound by that decision. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
Defendant also argues that the prosecutor committed misconduct when he described defense counsels closing argument as making him nauseous, and insinuated that defense counsel had followed Allen Dershowitzs advice in defending a case—"[Dershowitz] tells [lawyers] when youre defending a case, if the law is against you — [¶] . . . [¶] . . . argue the facts. If the facts are against you, argue the law. If the law and the facts are against you, just talk a lot." In People v. Breaux (1991) 1 Cal.4th 281, the California Supreme Court held that a comment virtually identical to the latter statement was not misconduct. The court determined that the statement, in context, could be understood "as cautioning the jury to rely on the evidence introduced at trial and not as impugning the integrity of defense counsel." (Id. at p. 306.) Here, too, the comment was not improper; the prosecutor was beginning his rebuttal argument and used the remarks as an introduction to his discussion of the evidence. "[I]nsofar as the prosecutors remarks could be understood as a reminder to the jury that it should not be distracted from the relevant evidence and inferences that might properly and logically be drawn therefrom, there was no impropriety." (Ibid.) Additionally, while the "nausea" comment cannot be described as best practices for trial advocacy, it does not rise to the level of misconduct.
Defendant also asserts that the prosecutor misrepresented facts outside the record in his attempt to discredit J. S.s (the victims son) testimony about Michael Willis. He objects to the prosecutors following remarks about J. S.: "[T]he young boy had just recently been molested. He found his mother dead on the bathroom floor. Who knows whats going through that boys mind when hes being interviewed by a sergeant from the Oakland Police Department having just found his mom. Who knows if Michael Willis was actually there." The prosecutors remarks were fair comment on the evidence. (People v. Hill (1998) 17 Cal.4th 800, 819.) We discern no misconduct.
H. Sentencing
Finally, defendant challenges his sentence of life without the possibility of parole (LWOP) as unconstitutional because the death penalty statute fails to narrow the class of offenders eligible for death or LWOP. Our Supreme Court has upheld the constitutionality of the statutory scheme. (People v. Welch (1999) 20 Cal.4th 701, 766-767; People v. Holt (1997) 15 Cal.4th 619, 697; see also Harmelin v. Michigan (1991) 501 U.S. 957, 995 [individualized capital-sentencing doctrine not applicable to LWOP sentence].) Consequently, defendant was not prejudiced by his counsels failure to raise this issue below.
Given our resolution of the issues presented, we need not reach defendants argument of cumulative error.
III. THE HABEAS PETITION
A. Prosecutorial Misconduct
Defendant contends that the prosecutor committed misconduct by knowingly using perjured testimony. He argues that Haneys prior sworn statement in a search warrant affidavit contradicts his trial testimony. We conclude that this argument lacks merit.
At trial, Haney testified as follows to explain why he discounted Powell as a suspect: "As I said before, when the serologist told me that the DNA profile for Ronnie Powell came back as not matching that of evidence recovered during the autopsy, I was able to discount Ronnie Powell as a suspect. [¶] [MR. LEVY (defense counsel)]: Well, didnt that just discount Mr. Powell as having sex with Kyla? [¶] . . . [¶] [SERGEANT HANEY]: Thats correct. [¶] [MR. LEVY]: It didnt discount him from having killed her; did it? [¶] [SERGEANT HANEY]: In my mind it did, knowing all the facts of the case. It went hand in hand in my mind, the sexual activity and the murder. [¶] [MR. LEVY]: So you believed that whoever had sex with her must have killed her. Thats what you thought. [¶] [SERGEANT HANEY]: Yes. [¶] . . . [¶] MR. LEVY: Q. . . . Didnt you know or at least didnt you think that the sex and the killing could have been, could have been separate incidents done by two separate people? [¶] [SERGEANT HANEY]: No." Defendant argues that Haney had previously averred in an affidavit that the DNA test excluding Briggs and Powell as the semen donor did not exclude them as the murderer.
Defendant misreads Haneys affidavit. In the affidavit, submitted in support of a search warrant for Michael Williss blood, Haney declares that DNA testing of Briggs and Powell excluded them as the donor of the evidence recovered from the victim, "but did not exclude either individual from being involved in the murder and/or theft of property from [the victims residence]." (Italics added.) While Haney testified that he did not believe that Powell was the murderer, his prior declaration in the affidavit that Powell could have been involved in the murder or theft of the television was not inconsistent. At the point that Haney drafted the affidavit, he was still in the preliminary stages of investigating numerous suspects in the case and had not yet ruled out Powell or Briggs as potentially being involved. Haney, thus, did not commit perjury in testifying as to his theory that Powell was not the murderer.
Defendant also contends that the prosecutor committed misconduct during closing argument when he attempted to impeach J. S.s testimony by arguing that he was recently molested. We have previously concluded that no misconduct occurred. Defendant now argues that Thomas fabricated the molestation allegation and points to the investigating officers log in which a neighbor alleges that Thomas claimed her son was molested in order to sue the school district. This evidence is merely hearsay, and ignores the fact that the district attorneys decision on whether to prosecute the molestation case was still pending at the time of Thomass death, and that the alleged molester was informed that he continued to be a suspect. The prosecutors remark that J. S. had recently been molested was a fair inference to be drawn from the evidence. No misconduct occurred.
Defendant also contends that the prosecutor erroneously argued in attempting to impeach J. S.s testimony, "[w]ho knows if Michael Willis was actually there [in the victims apartment]." This argument, too, was fair comment on the evidence. (See People v. Wharton, supra, 53 Cal.3d at p. 567 [argument may be vigorous as long as it amounts to fair comment on the evidence and can include reasonable inferences or deductions].) Here, although J. S. told Haney about Willis being at the apartment the evening before the murder, he was unable to testify to that fact at trial. The prosecutors comments, therefore, were a reasonable inference from the evidence.
To the extent defendant argues that the prosecutor erroneously implied that J. S. made his statement about Willis immediately after finding his mother, the prosecutors comment, assuming arguendo that the jury understood it as defendant argues, was so brief and tangential that it could not possibly have prejudiced defendant even if it was misconduct.
B. Ineffective Assistance of Counsel
Defendant contends that he was denied the effective assistance of counsel because of numerous acts of omission by his trial counsel. We conclude that defendant has failed to establish a prima facie case for relief.
In order to prove a claim of inadequate representation, a defendant must show that "trial counsel failed to act in a manner to be expected of reasonably competent attorneys acting as diligent advocates." (People v. Pope (1979) 23 Cal.3d 412, 425.) Effective and competent representation requires "counsels `diligence and active participation in the full and effective preparation of his clients case. [Citation.]" (Id. at pp. 424-425.) " `[T]he defendant must affirmatively show that the omissions of defense counsel involved a critical issue, and that the omissions cannot be explained on the basis of any knowledgeable choice of tactics. [Citations.]" (People v. Lanphear (1980) 26 Cal.3d 814, 828-829.) The defendant must also establish prejudice from counsels acts or omissions. Ordinarily prejudice must be affirmatively proved; the defendant must establish the reasonable probability that had counsel not been incompetent, the proceeding would have had a different result. (Strickland v. Washington (1984) 466 U.S. 668, 687.)
1. Motion to Suppress Evidence of Blood
Defendant first claims that the counsel was ineffective for failing to challenge the seizure of his blood. He argues that trial counsel should have brought a motion to unseal the affidavit and then a motion to suppress evidence challenging probable cause for the issuance of the search warrant. Based on our review of the record and the sealed affidavit, we conclude it is not reasonably probable that defendant would have prevailed on a motion for disclosure of the confidential informant, to unseal the affidavit or to traverse or quash the search warrant. (See People v. Hobbs (1994) 7 Cal.4th 948, 977.)
First, counsel cannot be faulted for not seeking to unseal the affidavit. Sufficient grounds existed for maintaining the confidentiality of the informants identity. "[A]ll or any part of a search warrant affidavit may be sealed if necessary to implement the [informants] privilege and protect the identity of a confidential informant." (People v. Hobbs, supra, 7 Cal.4th at p. 971.) Here, in reviewing the affidavit, we find that valid grounds existed for maintaining the informants confidentiality and that the sealing of the affidavit was necessary in order to avoid revealing the informants identity. (Id. at p. 973.) Further, contrary to defendants argument, there is nothing in the affidavit that demonstrates that any material misrepresentations or omissions were made. "[I]n order to prevail on such a challenge, the defendant must demonstrate that (1) the affidavit included a false statement made `knowingly and intentionally, or with reckless disregard for the truth, and (2) `the allegedly false statement is necessary to the finding of probable cause. (Franks [v. Delaware (1978)] 438 U.S. [154,] 155-156.)" (Id. at p. 974.) We have examined the affidavit for possible misleading statements or omissions and found nothing that leads us to suspect that any material misrepresentations or omissions were made. (Ibid.) Finally, based on our review, we conclude that the affidavit established probable cause for the issuance of the search warrant for defendants blood. Accordingly, defendant has not established that he was prejudiced by his counsels failure to move to suppress the evidence. (See Strickland v. Washington, supra, 466 U.S. at p. 694.)
On June 21, 2002, this court denied defendants motion for an order unsealing the warrant and affidavit.
2. Threat Evidence
Defendant next contends that his counsel was ineffective because he failed to introduce certain evidence. In particular, he asserts that defense counsel should have introduced J. S.s statement to Haney that he heard Michael Willis whisper that he was going to kill Thomas. The evidence proffered in defendants petition, however, is hearsay and insufficient to establish a case for relief. "In a habeas corpus petition alleging incompetent investigation or presentation of evidence by trial counsel, a petitioner . . . . must generally produce [the evidence that might have been discovered and produced by competent counsel] so the credibility of the witnesses can be tested by cross-examination." (In re Fields (1990) 51 Cal.3d 1063, 1071.) In any event, defendant has not shown that he was prejudiced by counsels failure to introduce the threat. The jury heard that Thomas and Willis had an argument the evening before the murder and that she stabbed Willis in the leg. Yet, as the Attorney General argues, the threat evidence could not have explained the findings of defendants DNA upon the victim and his fingerprints at the scene. Defendant has failed to show prejudice.
3. Impeachment Evidence
Defendant also asserts that defense counsel should have impeached Haney with the statement in his affidavit in support of the search warrant of Willis that DNA evidence did not exclude him "from being involved in [Thomass] murder." He also argues that counsel should have impeached Haney with another statement in his affidavits for the Powell, Briggs and Willis search warrants that Thomass biological evidence "may have been transferred from the person of the individual responsible for the strangulation of Thomas." He contends that these statements are inconsistent with Haneys trial testimony that the same individual committed both the rape and murder. As we have previously explained, we disagree with defendants characterization of the evidence. The suggested impeachment would not have been successful; Haneys trial testimony concerned conclusions he made as a result of his investigation. The affidavits in support of search warrants, on the other hand, were drafted during the course of that investigation when Haney still considered Powell, Briggs and Willis as suspects.
4. Failure to Impeach DNA Expert
Defendant also faults defense counsel for failing to impeach Pamela Sartori, the DNA expert. At trial, Sartori testified that in examining sperm microscopically, sperm that have tails signify a recent intercourse. She explained that the tails are very fragile and that in a living person they usually last up to 8 to 16 hours. "[I]n postmortem victims they have found sperm — they didnt mention tails — they said up to 16 days. But you also find sperm with tails more on commonly up to 144 hours, but the tails do not last very long." Defendant argues that defense counsel should have impeached Sartori with her preliminary hearing testimony on this subject. Sartori then testified as follows: "[MS. SARTORI]: . . . If its a recent intercourse you see tails still attached, but the tails are very fragile. [¶] MR. LEVY: Q. Do you know how long sperm will last in the body before you can no longer tell its sperm? [¶] [MS. SARTORI]: It can last for several days, but in a homicide victim that time varies depending on the temperature and environmental factors. [¶] [MR. LEVY]: So theres no way for you, or is there any way for you to tell how old any of this sperm was at the time? [¶] [MS. SARTORI]: No. [¶] [MR. LEVY]: But it could have been — the sperm could have been there a few minutes or a few days? [¶] [MS. SARTORI]: Thats right. [¶] [MR. LEVY]: No way to tell? [¶] [MS. SARTORI]: No."
Ms. Sartoris testimony at the preliminary examination was consistent with her trial testimony that sperm with tails indicate a recent intercourse. Although she testified at the preliminary hearing that there was no way to tell how old any of the sperm in the victim was, the fact that she testified that she found sperm with tails on the vaginal slide taken from Thomas at the autopsy together with her testimony about sperm with tails indicating a recent intercourse was consistent with the Peoples theory that Thomas was raped and murdered. Although defense counsel may have been able to make an argument about the longevity of sperm based on Sartoris preliminary hearing testimony, the same argument was possible based on her trial testimony that sperm in homicide victims can last up to 16 days. In any event, defense counsel was still faced with the issue of Sartoris finding of sperm with tails and the more damaging evidence that defendants DNA profile could not be excluded as a match of the semen found in Thomas. Given this evidence, it is not reasonably probable that defendant was prejudiced by defense counsels failure to attempt to impeach Sartori with her preliminary hearing testimony.
5. Hearsay Evidence
Defendant also argues that his trial counsel was ineffective because he elicited hearsay evidence in questioning Sergeant Haney that someone told him defendant was involved in the murder. Counsel further elicited the response that the person who gave defendants name had also been a suspect. It is unlikely that the hearsay evidence swayed the jury. We cannot conclude that defendant was prejudiced by the introduction of this evidence.
As in his appeal, defendant contends that trial counsel was ineffective for failing to object to evidence linking him with Thomass television, showing that Charlene Young was threatened and revealing his recent incarceration. We concluded in the appeal that any error in admitting the evidence was harmless. Defendant was, therefore, not prejudiced by counsels omissions in objecting to the evidence.
6. Prosecutorial Misconduct
Defendant also raises the issue of prosecutorial misconduct in his petition for habeas corpus. As we explained in the appeal, the prosecutor did not commit misconduct. Further, trial counsel in his declaration in support of the petition for habeas corpus acknowledged that he is "hesitant to make objections to a prosecutors closing argument" and that the remarks complained of "either did not blare out at me as outrageous or objectionable, or, if objectionable, did not appear worth objecting to, given my assumption that such objections would be over-ruled." The record, thus, demonstrates that counsels failure to object to the prosecutors argument was the result of an informed tactical decision. (People v. Pope, supra, 23 Cal.3d at p. 425 ["where the record shows that counsels omissions resulted from an informed tactical choice within the range of reasonable competence, the conviction must be affirmed"].)
7. Failure to Investigate and Subpoena Witnesses
In addition, defendant contends that trial counsel was ineffective because he failed to adequately investigate the case and locate critical defense witnesses. In particular, he asserts that counsel should have produced evidence of Powells criminal background to show his propensity for violence and that he could have produced other evidence tending to connect Powell to the murder.
A defendant has the right to present evidence of third party culpability if it is capable of raising a reasonable doubt about the defendants guilt. (People v. Hall (1986) 41 Cal.3d 826, 833.) The evidence, however, must do more than merely show a motive or opportunity to commit the crime. (People v. Basuta (2001) 94 Cal.App.4th 370, 386.) "[T]here must be direct or circumstantial evidence linking the third person to the actual perpetration of the crime." (People v. Hall, supra, 41 Cal.3d at p. 833.)
Here, defendants proffer fails to demonstrate a link between Powell and the murder. In addition, the evidence he would now offer would result in a trial of collateral issues resulting in undue delay, prejudice or confusion of the issues. (People v. Hall , supra, 41 Cal.3d at pp. 829, 834.) Moreover, defendant has failed to produce competent evidence to support his claim that witnesses could have been produced but for counsels ineffectiveness. (See In re Fields, supra, 51 Cal.3d at p. 1070; People v. Duvall (1995) 9 Cal.4th 464, 474.) On this record, defendant has failed to establish that his counsel was incompetent for failing to investigate and locate certain witnesses.
8. Instructional Errors
Defendant also argues that his defense counsel was ineffective for failing to request a Mayberry instruction, an instruction defining the specific intent to rape, and a "correct" second degree murder instruction. We rejected defendants claims of instructional error on his appeal; his arguments on the same issues in his petition for habeas corpus similarly lack merit.
9. DNA Evidence
Relying on People v. Pizarro (1992) 10 Cal.App.4th 57, defendant further faults defense counsel for failing to object to criminalist Pamela Sartoris testimony on the profile frequency of the DNA evidence. He argues that the evidence was irrelevant because there was insufficient evidence to establish the preliminary fact of the ethnic identity of the perpetrator.
In Pizarro, the court held "[a]bsent proof sufficient under Evidence Code section 403 to support the preliminary fact as to the racial/ethnic background of the perpetrator, we see no relevancy to a data base selected because of the racial/ethnic background of the suspect/defendant." (People v. Pizarro , supra, 10 Cal.App.4th at p. 94.) The court noted that the evidentiary problem could be alleviated if a general population database, created without regard to race or ethnic background, was used. (Ibid.) The Pizarro court reversed and remanded the case for a Kelly/Frye hearing on the question of whether the DNA testing method and database utilized had general acceptance in the scientific community. (Id. at p. 95.) Following that hearing, the trial court ruled that the evidence was admissible and reentered the judgment. Defendant again appealed. (People v. Pizarro (2003) 110 Cal.App.4th 530, 540.) The court again found fault with the ethnic profile frequency evidence and reversed. (Id. at pp. 623, 634-635.)
Defendant did not challenge the admissibility of the DNA evidence below. He now contends that the only relevant profile frequency evidence would be a profile based on a general population database. Our Supreme Court, however, approved of the use of statistical calculations in DNA profiling in People v. Soto (1999) 21 Cal.4th 512, 515-516, 541. There, the court noted that laboratories doing DNA testing "do not use a single interracial United States database, presumably because the incidence of random mating between members of the different racial categories is deemed low enough to preclude use of the product rule to calculate an overall frequency statistic for the United States population as a whole." (Id. at p. 526, fn. 18.) Consequently, major laboratories that do DNA testing, such as the FBI and Cellmark, develop their own separate databases for ethnic and racial groups. (Id. at p. 526.) The Soto court cited the National Research Council (1996) The Evaluation of Forensic DNA Evidence reports recommendation that " `[i]f the race of the person who left the evidence-sample DNA is known, the database for the persons race should be used; if the race is not known, calculations for all racial groups to which possible suspects belong should be made. . . . " (Soto , at p. 532, fn. 27.)
The PCR method used by Sartori to test the DNA here was approved by Division Two of the First Appellate District in People v. Morganti (1996) 43 Cal.App.4th 643, 671.
"The essence of the product rule is the multiplication of individual band probabilities [of the evidentiary sample] to arrive at an overall probability statistic expressed as a simple fraction, such as 1 in 100,000." (People v. Soto, supra , 21 Cal.4th at p. 525.)
Here, Sartori testified that she developed her frequency determination from the FBI database published in The Journal of Forensic Science. Based on this information she gave results for the probabilities of the DNA profile in African-Americans and Caucasians: "The genetic marker profile of the semen in this case, the frequency for that profile occurs in . . . approximately one in 20,000 Caucasian individuals, and has a frequency in the African American population of approximately one in 16,500 individuals." Defendant did not offer any expert testimony to refute this evidence or to testify about differences among the various databases. Nonetheless, the frequency evidence that was offered was favorable to him. As the Soto court explained: "The question properly addressed by the DNA [probability] analysis is therefore this: Given that the suspects known sample has satisfied the `match criteria, what is the probability that a person chosen at random from the relevant population would likewise have a DNA profile matching that of the evidentiary sample? That probability is usually expressed as a fraction—i.e., the probability that one out of a stated number of persons in the population (e.g., 1 out of 100,000) would match the DNA profile of the evidentiary sample in question. A greater probability, that is to say, a fraction with a smaller denominator (e.g., 1 out of 10,000), would tend to favor the suspect by increasing the probability that one or more other persons has a DNA profile matching the evidentiary sample." (People v. Soto, supra, 21 Cal.4th at p. 523.) Thus, here, the evidence that the frequency of the match profile in this case occurred in one out of 16,500 African-Americans versus one in 20,000 Caucasians was favorable to defendant. While the better practice would have been for the DNA expert to cite frequency evidence for all racial groups, here, defense counsel was able to use the evidence presented to his advantage in closing argument and argued that based on the numbers, the jury could not conclude that the DNA belonged to defendant. On this record, we conclude that defendant was not prejudiced by admission of the frequency evidence.
10. Sentencing
Finally, defendant again challenges his trial counsels failure to raise the issue of the constitutionality of Californias death penalty statute. As explained in the appeal, our Supreme Court has upheld the constitutionality of the statute.
IV. DISPOSITION
The judgment is affirmed. The petition for writ of habeas corpus is denied.
We concur: REARDON, Acting P. J. & SEPULVEDA, J.