Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Tulare County No. VCF178900, Gerald F. Sevier, Judge.
Scott Concklin, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Lloyd G. Carter, Enid Camps, Michael Chamberlain and Lewis A. Martinez, Deputy Attorneys General, for Plaintiff and Respondent.
HILL, P.J.
Appellant Steven Walter Gomez stands convicted, following a jury trial, of murder perpetrated during the commission of robbery, rape, and sodomy (Pen. Code, §§ 187, subd. (a), 190.2, subd. (a)(17); count 1); forcible rape (§ 261, former subd. (2); count 2); and forcible sodomy (§ 286, former subd. (c); count 3). The jury further found he had suffered a prior conviction for robbery, a serious felony (§ 667, subd. (a)(1)), and, following a bifurcated court trial, he was found to have suffered a prior conviction for assault with intent to commit rape, also a serious felony (§ 667, subd. (a)(1)). The People having elected not to seek the death penalty, appellant was sentenced to life in prison without the possibility of parole plus 10 years and ordered to pay various fees, fines, and restitution. He filed a timely notice of appeal, and now raises numerous claims of error. For the reasons that follow, we will affirm the murder conviction, but find merit in some of appellant’s contentions and modify the judgment accordingly.
All statutory references are to the Penal Code unless otherwise stated.
A fourth count, charging forcible penetration with a foreign object (§ 289, former subd. (a)), was dismissed prior to trial (§ 995).
FACTS
I
Prosecution Evidence
A. The Charged Offenses
As of January 1985, Dixie Ricks had been married to Frank Ricks for about 13 years, although they had been separated and working on reconciling for the last several months to a year. Despite the separation, they often talked and spent time together. Frank was hoping they would get back together, but he was not trying to force the issue. He still loved Dixie and believed the feeling was mutual.
For the sake of clarity, we refer to members of the Ricks family, and to Adan and Asuncion Sanchez, by their first names. No disrespect is intended.
Patricia Condo, Dixie’s sister, confirmed that Frank loved Dixie “[i]mmensely.” He was resigned to the separation, although he remained hopeful that things could get better. Dixie, however, had “had enough.” According to Condo, Frank had a drinking problem and would grow verbally belligerent when he drank, but she never saw any physical violence toward Dixie. Lydia Garcia, a friend of the couple, confirmed that the separation was not a hostile one.
During this time, Dixie liked to go out drinking with her girlfriends on Friday or Saturday nights. The outings did not include Frank, unless he happened to be driving by when she was headed home, in which case he would give her a ride.
On January 27, Frank was at Dixie’s home during the day. When she wanted to go out that night, he stayed to baby-sit their son and daughter, who were nine and four, respectively. He and the children dropped Dixie off in the early evening at PJ Shannon’s, a bar she liked. Frank thought Dixie was going to meet her girlfriend, Linda Alford, there. Frank told Dixie to call him if she needed a ride home. He had known her to walk home from bars; when people said something to her about it, she said she walked like a man and that nobody was going to bother her.
References to dates in the statement of facts that do not specify the year are to dates in 1985.
According to Alford, something came up and she could not join Dixie that night. When Alford and Dixie went to bars, Dixie went to dance, not to pick up men. She and Frank still loved each other, even though they could not get along part of the time. Dixie did not have any interest in meeting anybody else unless the person wanted to dance, and then she would dance with him. However, she would never go home with a man or bring a man around her children. Dixie never mentioned anyone named Chuck.
Dorian Alvin, the bartender at PJ Shannon’s, had seen Dixie in the bar once or twice. On the night of January 27, business was slow and there were only a few people in the bar. Dixie was the only woman. She was wearing a black coat and a white or blue-striped blouse. She was drinking Vodka grapefruit cocktails, and may have had four or five of them. Two men, one of whom was Hispanic, maybe 30 or 35, and with a scruffy beard, were sitting close to Dixie at the bar, although Alvin did not see them talking to her. Alvin was concerned because it was late and “dreary” out, and Dixie, who had been there an hour or an hour and a half or so, was going to leave on foot. He offered to call her a cab, but she said she was fine. Alvin did not see anyone following her when she left.
Appellant’s date of birth was March 2, 1944.
Dixie left PJ Shannon’s around 9:30 p.m. The bar was approximately 1.7 miles from her apartment.
Back at the house, Frank fixed dinner for the children, then they went to bed and he fell asleep on the couch while watching television. Sometime that night (Frank believed it was between midnight and 2:00 a.m.), his son, John, woke him up and asked where Dixie was. Frank said he did not think the bars were closed yet, but that she would be home. John recalled that Dixie was going to come home around 2:00 a.m. When she was not home by around 3:00 a.m., he woke Frank, but Frank convinced him to go back to sleep.
The next morning when Frank got up to go to work, Dixie still was not home. Frank asked a friend of theirs to watch the children because he had to get to work, but he knew something was not right. It was not like Dixie not to come home. He told his boss he had to go home, then he went and got the children and made some phone calls. When nobody had seen Dixie, Frank called the police to make a missing person report, but Dixie had not been gone long enough to be considered a missing person.
Linda Alford recalled Frank calling her between 9:00 and 10:00 a.m. to see if Dixie had spent the night with her. Frank said Dixie had never come home. Alford called various bars to see if anyone had seen Dixie, but did not remember talking to the bartender at PJ Shannon’s. To her recollection, Frank said nothing about dropping Dixie off there, although he might have.
Alford headed for Frank’s house about 4:00 p.m., driving around first to see if she could see Dixie walking. She saw police near the intersection of Houston and Conyer. She told Frank, then drove him to that location. Frank was very distraught. Visalia Police Detective Vadnais was contacted by Frank at the scene shortly after 4:55 p.m. Frank expressed concern because his wife had not come home for about a day. Vadnais followed him to Dixie’s residence. There, he took a statement from Frank, who was extremely emotional. Frank was then asked to go down to the police department.
Meanwhile, Visalia Police Officer Davis, who had previously worked in the crime lab for several years, was dispatched to the scene. In a vacant lot at the intersection of Houston and Conyer Streets, a path led behind some bushes that prevented a portion of the lot from being visible from the street. Behind the bushes was Dixie’s nude body. She was lying on her stomach, and was suspended about a foot and a half off the ground at the neck, so that her body was on the ground, but her face was up at about a 30-degree angle. Her nose was very red, her tongue was protruding, and there was a lot of dirt and debris adhering to her lips, teeth, and tongue.
At the scene were items that could have been unrelated trash, as well as a number of things adjacent to the body that Davis felt reasonably certain were contemporaneous with the body’s placement. Dixie was suspended by the neck from a branch. A black fur jacket hung over the branch and covered her head to about her shoulders. Once that was removed, Davis saw a red, white, and blue blouse that was looped twice around her neck and up over the branch. It was one of the things that was holding her off the ground. He found a piece of the same color material that had apparently been torn from the blouse, near Dixie’s right hand. A segment of rope was looped over a different limb of the same bush. Davis also found two gold stud earrings in the leaves on the ground. The catches were not present. He found a partially smoked Camel cigarette near Dixie’s left leg. Although he could not recall if it was filtered or nonfiltered, the brand name was still on it. A white skirt was next to Dixie’s feet. A pair of black suede shoes was also near her feet, but Davis saw no drag marks. He found a pair of blue, brushed-leather gloves near the shoulder area of the body, and a pair of women’s nylons running somewhat underneath her hips.
Davis conceded it was impossible to know if it was associated with the crime.
On the body, Davis saw linear, rectangular punctures that were consistent with a watch or something else with an expanding band being pulled forcibly off of the wrist. There was no watch at the scene, nor did he find any type of purse, a bra, or any undergarments. Lividity – a discoloration of the skin caused by the settling of blood into the lower portion of a body through gravity – was setting in.
According to Patricia Condo, Dixie always took a purse, and wore a watch and a bra, when she went out.
Based on the presence of the body and locations of the items of evidence that were found, especially the garments and how they were intertwined, Davis opined that Dixie was killed at that location. He conceded it was possible somebody had dropped the body off there and displayed her in that fashion, but found such a scenario unlikely.
A subsequent autopsy revealed abrasions on Dixie’s left wrist that were consistent with portions of a watchband cutting into the skin. There was dirt or mud on Dixie’s knee, as well as scattered underlying superficial abrasions. Her body bore abrasions and crescent-shaped fingernail-type wounds consistent with some sort of struggle. There were a number of abrasions about her nose, which was slightly swollen and discolored. Her tongue was partially protruding, the end of the tongue was dried, and there were scattered abrasions about the right cheek and forehead. There were no tears to the earlobes. There were two distinct depressions with associated abrasions on the skin of the right side of her neck. One was located over the trachea, just below the larynx; the other was just above the larynx, in the region of the hyoid bone. The injuries were “classic” ligature marks caused by something like a rope or clothing. The abrasions were caused by a scraping of the ligature against the skin such as might occur during a struggle. In addition to a prominent ligature mark, the other side of the neck bore two or three bruises, which could have been caused by blunt force trauma or by heavy pressing of a hand against the neck in a strangulation procedure. The cause of death was ligature strangulation. Dixie’s blood-alcohol content was 0.11, which was consistent, given her weight, with five to seven drinks. During the autopsy, a sexual assault kit was collected. At the time, this consisted of swabs to collect fluids from the mouth, vagina, and anus, as well as a comb used to comb the pubic hair. There was no evidence of trauma to the anus or external genitalia.
Easily visible signs of trauma are not always seen in sexual assault cases. Today, a colposcope and magnification would be used to photograph the various orifices. This was not done in Dixie’s case. In an autopsy as it was performed at the time of her death, only the external genitalia could be well visualized for abrasions or bruises or other trauma, and it was very difficult to see deeply into the vaginal canal or rectum or back of the throat for signs of trauma. In addition, DNA evidence was not used in California until 1990.
Visalia Police Sergeant Gomes, the lead investigator on the case, interviewed Frank at the police department on January 28. When Gomes showed Frank a photograph of the homicide victim’s face for the purpose of positively identifying her, Frank immediately put his hands to his face and started sobbing.
Frank’s description of the clothing he had last seen Dixie wearing matched the clothing found at the crime scene. Frank also said that the last time he saw her, she was in possession of a purse.
During the course of the interview, Frank related that he and Dixie had been separated for several months. He told Gomes that he occasionally dropped her off at various bars, and that he had done so the night before the body was discovered. Frank mentioned that he was aware of someone named Chuck who was calling Dixie. Frank said he had answered the phone at Dixie’s residence when Chuck called, and that Dixie told Frank she had not had an affair, but if she were to have one, she had some feelings about Chuck. Frank said he would understand if Dixie had a “fling, ” as he had had “flings” in the past and she had one coming. Frank did not express any jealousy.
Gomes had contact with Frank on multiple occasions during the course of the investigation. In addition, Gomes interviewed friends and relatives of Dixie and the couple, and he looked at other possible individuals of interest. All avenues of investigation kept getting shut down, however, and, by the time Gomes retired in 2002, the case had gone cold. It was no longer being actively investigated, because there were no new leads to pursue.
Frank felt some of the officers considered him to be the prime suspect. He denied harming Dixie on the night she was killed. Although they had some physical altercations early in their marriage, their arguments in the years immediately preceding Dixie’s death were only verbal.
In February 2007, Visalia Police Sergeant Sumpter was assigned to the violent crimes unit when he was asked to do a follow-up on a cold hit from a DNA database in Dixie’s case. As a result, Sumpter attempted to contact appellant at the Visalia home of Adan Sanchez and his wife, Asuncion. As of March 2007, appellant had been living in a room behind their house for about four years. Adan noticed that appellant smoked Camel cigarettes.
Nancy Sanchez (apparently no relation to Adan and Asuncion), had been acquainted with appellant since May or June 1985. She knew him to smoke nonfiltered Camel cigarettes. She considered him a “mellow” person.
According to Asuncion, when the police first came to visit, appellant was still living behind the Sanchez home, but the police were unable to find him. When appellant later came into the house, Asuncion told him the police were looking for him. Appellant said he had not wanted to open the door because he had not gotten a lot of sleep. He went to the bathroom, although Asuncion did not know if he had diarrhea. He looked like he was worried. Asuncion did not see any papers being thrown away.
According to Sumpter, when he first contacted Asuncion, she said she was trying to find appellant, and that he was not home. On March 14, 2007, which was about a week after the first contact, Sumpter interviewed Adan and Asuncion to see if they had any information regarding appellant’s past. Asuncion related that when she contacted appellant later on the same day Sumpter had originally been looking for him, she told appellant the police were looking for him. Appellant told her that he was a witness to a murder that had occurred 22 years ago. Asuncion said appellant became pale and had diarrhea. He then started throwing away a lot of papers that were in his room. He threw them in a dumpster behind the store around the corner. Asuncion thought appellant’s behavior was unusual, in correlation to Sumpter’s appearance at the residence and attempt to interview him. Later, however, when Sumpter sought to tape record Asuncion’s statement, she backed away from saying appellant was a witness to a murder and called it a criminal offense.
When he first contacted Asuncion, Sumpter identified himself and asked for appellant. He never said why he was looking for him or that it had to do with an incident in 1985.
During the course of his investigation, Sumpter was able to locate almost all of the witnesses from 1985. He talked to Frank several times, including about the way in which Frank smoked cigarettes. There were cigarette butts in an ashtray inside Frank’s home, and Frank showed Sumpter how he smoked Camel nonfilters from the label in, so that after the first couple of puffs, the label burned off. Sumpter was interested in this because a Camel nonfiltered cigarette was listed as having been located at the crime scene. Sumpter also obtained DNA swabs from Frank and from appellant. Sumpter was able to locate contacts in the system that showed appellant was living in Visalia in December 1984, February 1985, and August 1985. Photographs of appellant from that time showed him to have shaggy hair and, usually, a fairly thick mustache.
The sexual assault kit taken from Dixie was submitted to the Department of Justice laboratory for analysis. Spermatozoa were found on all three swabs. The genetic profiles for each showed a general consistency at each of the nine loci tested. DNA was extracted, and a genetic profile developed, from appellant’s reference sample. The sperm donor profile from the swabs matched that reference sample. Scruggs reported that the sperm donor profile from the victim’s vaginal, oral and rectal swabs occurred in approximately one in greater than a trillion of the Black, Caucasian, and Hispanic populations. Scruggs was unable to say how long the sperm was present in the body. It could have been there for as long as 72 hours.
The testimony given at the preliminary hearing by Edwin Scruggs, assistant laboratory director with the Department of Justice Laboratory, was read to the jury, as Scruggs was unavailable for trial.
Two pubic hairs that were not consistent with Dixie’s pubic hair sample were found in the pubic hair combings. Those hairs were not consistent with a sample submitted by Frank.
The Department of Justice laboratory was unable to obtain DNA from the cigarette found at the crime scene.
B. The Uncharged Offense
On January 13, 1976, Margie Garcia Avalos was working at La Estrellita Bar in Tulare. There were only a few customers in the bar that day. Between noon and maybe 1:00 p.m., appellant, who had been in the bar a couple of times before but was not a regular, came in. As the day and evening progressed, he and Garcia Avalos conversed and played cards off and on. He kept saying he needed to make a phone call about employment or something. Garcia Avalos made a few calls for him.
At some point that evening, everyone had left except for Garcia Avalos and appellant. He asked if she would call someone for him. Garcia Avalos went to the pay phone. As she was dialing the number, she felt a coat hanger around her neck. She was able to put her hand between her neck and the hanger, then appellant asked her to step into the women’s restroom. She refused, and told him that he could take whatever he wanted, but not to hurt her. He insisted she go in the restroom, get on her knees, and remove her blouse, but she again refused. At some point, he had her take off her sweater. He used her sweater to rip the phone off the wall. Also at some point, she went into the men’s restroom. Appellant told her to stay there; if he took money from the cash register, he did so while she was in the men’s restroom. She stayed there until she thought it was clear, then went across the street to a trailer park and asked someone to call the police. She later determined that $50, which was all the boss ever left in the cash register, was gone.
Garcia Avalos testified at trial that appellant never tried to fondle her, and she was not in fear of being raped or sexually assaulted. However, on March 13, 2007, Sergeant Sumpter interviewed her about the incident. According to him, she related that when appellant asked her to take off her blouse, it was in her mind that he wanted sex.
Garcia Avalos’s testimony of January 26, 1976, from appellant’s preliminary hearing, was read to the jury. In part, she testified that appellant came into the bar around 4:00 p.m. and remained there until about 10:00 that night. Garcia Avalos had customers in and out, but nobody who stayed very long.
Around 9:00 or so, appellant took a small card from his wallet. He asked for a pen, then did some kind of marking and went to the pay telephone that was located at the end of the bar by the men’s room. He made a call, then came back and told Garcia Avalos the line was busy. He then went to the men’s room, where he stayed for a long time even after Garcia Avalos heard the toilet flush twice. When he exited, he went to the phone booth. Garcia Avalos could hear when he dropped in a coin. He then came back with the card in his hand. He said he tried the number, but got a busy signal and then a disconnected number of some kind. He asked Garcia Avalos if she would do him the favor of trying the number herself, and she agreed.
Appellant gave Garcia Avalos a dime, and she walked from behind the bar to the phone. She had dialed all but the last two digits when she felt a metal coat hanger around her throat. She put her hand between the wire and her neck, and appellant told her to hang up and not to move or say anything. He then told her to go into the men’s room. When she said no, he ordered her again. She again refused, then told him not to hurt her or anything, and that if he wanted the money, she would give it to him. She said this because she was scared. They stood there for what Garcia Avalos guessed was about three minutes, then appellant said, “‘All right. Let’s go.’” With the hanger still around her neck and her hand still there, they went behind the bar. He told her to walk straight ahead and not do anything or push any buttons. She told him there were no buttons, and when they reached the cash register, he told her to open it and give him the money. She did, and estimated she gave him around $50. There were no bills left in the register afterward.
The only place in the bar that appellant could have gotten a coat hanger was in the men’s room, where one was fastened to the water heater.
Appellant asked if that was all, and Garcia Avalos said no, but asked him to leave her the change so she could have some type of money. He did not take anything more, but instead moved over a little and reached for two or three packs of Winston cigarettes. He then turned around and, with the hanger still around her neck, suggested they go to the men’s room. She said she would not go in the men’s room, but would go in the ladies’ room if he wanted. He asked what was in there; she said nothing and invited him to look. They then went to the ladies’ room. She asked him not to hurt her, and he told her to kneel down. She said she would not, but offered to sit. Appellant let go of the wire, and it dropped to the floor in the corner where they were standing. Garcia Avalos then put down the lid on the toilet in the stall and sat there.
Appellant then asked her to take off her sweater and hand it to him, which she did. When Garcia Avalos took off her sweater, appellant just stood there. He then told her to take off her blouse. Garcia Avalos refused. Appellant then walked out, taking her sweater with him. He told her to wait at least two hours before calling the police. The door closed, and Garcia Avalos heard him yank the receiver off the phone. She heard the front door close, then waited about 10 more minutes to make sure he was gone. After that, she went across the street to the trailer court, asked someone to call the police for her, and then returned to the bar. She did not know if the phone in the bar was damaged; her sweater was on the floor with the receiver in between. About half an hour later, officers brought appellant to the bar to see if he was the perpetrator.
Although the record is not clear, it appears appellant may have put his hand to the neck of the blouse.
II
Defense Evidence
Dr. Eric Hickey was a criminal psychologist, dean of the California School of Forensic Studies at Alliant International University, and a professor of criminology at Fresno State University. He was an expert in the areas of sex crimes, homicide, stalking, and domestic violence. He was not a criminalist, but instead focused on the psychology of crime scenes.
With respect to the present case, Hickey viewed the crime scene, interviewed appellant, reviewed the police reports and photographs, and reviewed information concerning the prior robbery. He found what appeared to be some staging of the crime scene. It appeared the victim was hung from a low branch after she was killed. This could have been done to make sure she actually did die, or as a final degradation of the body. In addition, the victim was spread-eagled. Hickey found it interesting that the earrings were on the ground and were together, and the backs were on them. If a man were to take earrings off a woman in the dark, he would not be too concerned about getting the backs back on the studs. Also, the gloves were together and the shoes were together. It seemed to Hickey that someone wanted these items to be in these positions for a reason.
“Staging” refers to things that are done at a crime scene to give an appearance that something else is going on. It is done to throw off investigations or sometimes to make a statement.
In fact, as Hickey acknowledged during cross-examination, the earrings were not together and did not have the backs on them, and he apparently received erroneous information in that regard.
Hickey felt it was significant that there were no drag marks under the victim’s heels. If she were grabbed and pulled off the street and into the bushes – a distance of several yards – there probably would have been drag marks or something on the body to indicate a struggle. Hickey’s sense was that the victim walked over to the area and was probably lured. If, for example, someone puts something around another person’s neck and threatens that person, the assailant will be able to get the victim to do what the assailant wants for the most part. When people are assaulted, there is often an initial state of shock during which they tend to go along with what is happening, at least for a few moments. Hickey felt that by the time the victim moved 70 to 80 feet to the location at which she was found, she would have had time to think about what she was feeling, and so then might have reacted. On the other hand, a female victim in a stranger situation will often hope that compliance will prevent death. If the perpetrator was able to manipulate the victim enough so that she felt she would survive if she did what she was told, she might have put the shoes and gloves where they were because it was more orderly.
The absence of signs of a beating made it appear there was no struggle, which suggested the victim was probably on the ground before she realized what was happening. The fact a dark coat was used to cover the upper body suggested to Hickey that the coat was used as a way to help conceal the body. Hickey saw what appeared to be elements of sadism and extreme force. In addition to the issue of control, the offender could be expressing a lot of anger or rage, perhaps over something personal between them or maybe generically, such as that he did not like women in general and that this was a way to degrade them. Most homicides are domestic, meaning they involve people who know each other. When a person wants to make a statement or show control and power or express rage or outrage, there is no greater way to do that than to sexually degrade a person.
Hickey acknowledged that some people are sexually aroused by being choked, while some enjoy doing that to others. In addition, offenders tend to become comfortable with how they do their killing. They practice and are often fulfilling their fantasies. Some serial killers like to keep trophies, which are usually body parts, or souvenirs, such as a ring or something by which to remember the victim.
DISCUSSION
I
Sufficiency of the Evidence
A. General Principles
The test of sufficiency of the evidence is whether, reviewing the whole record in the light most favorable to the judgment below, substantial evidence is disclosed such that a reasonable trier of fact could find the essential elements of the crime beyond a reasonable doubt. (People v. Johnson (1980) 26 Cal.3d 557, 578; accord, Jackson v. Virginia (1979) 443 U.S. 307, 319.) Substantial evidence is that evidence which is “reasonable, credible, and of solid value.” (People v.Johnson, supra, at p. 578.) An appellate court must “presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.” (People v. Reilly (1970) 3 Cal.3d 421, 425.) An appellate court must not reweigh the evidence (People v. Culver (1973) 10 Cal.3d 542, 548), reappraise the credibility of the witnesses, or resolve factual conflicts, as these are functions reserved for the trier of fact (In re Frederick G. (1979) 96 Cal.App.3d 353, 367). Furthermore, an appellate court can only reject evidence accepted by the trier of fact when the evidence is inherently improbable and impossible of belief. (People v. Maxwell (1979) 94 Cal.App.3d 562, 577.) These principles are applicable regardless of whether the prosecution relies primarily on direct or on circumstantial evidence. (People v. Lenart (2004) 32 Cal.4th 1107, 1125.)
We recognize that “mere speculation cannot support a conviction. [Citations.]” (People v. Marshall (1997) 15 Cal.4th 1, 35.) Viewing the evidence presented in this case in accord with the foregoing principles, however, we find it to be “reasonable, credible, and of solid value” – hence, “legally sufficient” (ibid.) – and accordingly conclude it is sufficient to uphold appellant’s convictions and the special circumstance findings.
B. Identification of Appellant as the Perpetrator
The DNA evidence is set out in the statement of facts, ante. Appellant says the non-DNA evidence, by itself, was insufficient to identify him as the perpetrator. He further claims that because the prosecution failed to prove a statistically significant DNA profile match, even the DNA evidence was insufficient to support the convictions. Appellant says the match evidence (the defendant could be the perpetrator) is given weight by the statistical evidence (a certain number of people in the population could be the perpetrator). He says the random match probability is the statistical measure that gives DNA match evidence its weight; in a cold hit case such as this one, however, product rule statistics do not show random match probability, but rather are relevant and admissible only to show rarity of the genetic profile in the population. Here, the prosecution presented statistics to establish the rarity of the perpetrator’s genetic profile in three racial/ethnic groups, but failed to present sufficient evidence to show that the perpetrator was a member of one of those groups or to demonstrate the rarity of the profile in society as a whole. Because the rarity statistics thus failed to eliminate the possibility that the perpetrator was a member of a racial/ethnic group for which statistics were not provided, appellant contends, the DNA match evidence was without probative weight, and reversal for insufficiency of the evidence is required because the evidence failed to establish appellant was the perpetrator.
“‘A determination that the DNA profile of an evidentiary sample matches the profile of a suspect establishes that the two profiles are consistent’ [citation]; hence, the suspect cannot be excluded as the source of the evidentiary sample. This determination is of little significance, however, ‘if the evidentiary profile also matche[s] that of many or most other human beings.’ [Citation.] Thus, while the fact of a match itself is relevant because it means the suspect could be the perpetrator, the probability that he is the perpetrator depends on the frequency with which the genetic profile appears in the population of possible perpetrators, i.e., the rarity of the perpetrator’s profile in the population. [Citation.] The rarer the genetic profile, the more likely the suspect is the source of the evidentiary sample. [Citation.]” (People v. Johnson (2006) 139 Cal.App.4th 1135, 1147, fn. omitted (Johnson); accord, People v. Pizarro (2003) 110 Cal.App.4th 530, 541-542, 576, disapproved on another ground in People v. Wilson (2006) 38 Cal.4th 1237, 1250-1251 (Wilson).) “The evidentiary weight of the match with the suspect is therefore inversely dependent upon the statistical probability of a similar match with the profile of a person drawn at random from the relevant population.” (People v. Venegas (1998) 18 Cal.4th 47, 82.)
In light of the foregoing, “[t]he statistical calculation step is the pivotal element of DNA analysis.…” (People v. Barney (1992) 8 Cal.App.4th 798, 817.) “Experts calculate the odds or percentages – usually stated as one in some number – that a random person from the relevant population would have a similar match.” (Wilson, supra, 38 Cal.4th at p. 1239.) Experts use a statistical method called the “product rule” to make this calculation. (People v. Nelson (2008) 43 Cal.4th 1242, 1259 (Nelson).
The product rule is explained in detail in People v. Soto (1999) 21 Cal.4th 512, 524-525. We assume it to have been the method of calculation used in the present case, although the record is silent on this point.
In Johnson, supra, 139 Cal.App.4th 1135, this court dealt for the first time with a cold hit case involving identification of a possible perpetrator through a convicted offender database. We recognized that “the questions, ‘“What is the rarity of the DNA profile in the population at large?” and “What is the probability of finding such a DNA profile in the database searched?”’ are two different inquiries that produce two different answers.” (Id. at p. 1151.) Nevertheless, we upheld admission of the DNA evidence against claims the methodology involved in cold hit cases had not gained general scientific acceptance under the standard stated in People v. Leahy (1994) 8 Cal.4th 587 and People v. Kelly (1976) 17 Cal.3d 24 (Kelly). (Johnson, supra, 139 Cal.App.4th at pp. 1147-1155.)
In the present case, the source of the “hit” was described only as “the DNA database.” We assume some sort of convicted offender database was involved, although for our purposes, what is important is that the “hit” came from a database, not the purpose for which the database was complied or maintained.
The California Supreme Court subsequently decided Nelson, supra, 43 Cal.4th 1242, a case involving a cold hit from the state convicted offender DNA database. (Id. at pp. 1248-1249.) At trial, the prosecutor presented statistical evidence showing how often the DNA profile would occur at random among unrelated individuals in African-Americans, Hispanics, and Caucasians. (Id. at p. 1249.) On appeal, the defendant challenged admission of the DNA evidence on the ground that the statistical method used to calculate the odds that the crime scene evidence could have come from someone else had not achieved general scientific acceptance under Kelly and its progeny. (Nelson, at p. 1257.) The high court summarized his argument thus:
“Defendant agrees that using the product rule to calculate the random match probability makes sense when comparing one suspect’s profile with the crime scene evidence because, as he explains, the random match probability ‘estimates the chance that any single, random person drawn from the relevant population would have the same DNA profile as that of the unknown person whose DNA was found at the crime scene.’ But he contends that a match made in a cold hit through a database search is different. He argues as follows: When a single suspect is compared to the crime scene evidence, ‘the basic question (“What is the probability or chance that a person selected at random from the relevant population would have a DNA profile matching that of the evidentiary sample”), is appropriate because the authorities already have reason to suspect one particular person’s DNA profile will match the evidence sample DNA profile before the two profiles are compared. [¶] But that same question presupposes the probability statistic involves a randomly-selected person. It thus cannot be posed in a “cold hit” case, for in such cases the only reason authorities have come to suspect one particular person is because they already know his DNA profile matches that of the crime scene evidence. In fact, they already compared the DNA profiles of tens of thousands (if not hundreds of thousands), of other persons, in order to find him. [¶] In other words, in a “cold hit” case the suspect is never “randomly” selected from the general population.’ Thus, when a suspect is found by a search of a large DNA database, the chance of a coincidental match is increased because ‘a single genetic profile (from the crime scene evidence) is compared to the very large number of profiles in these databases.’” (Id. at p. 1260.)
The court first determined that use of the product rule to calculate the odds in a cold hit case was not a new scientific technique subject to the Kelly test, and that the product rule reliably shows what it purports to show, namely the rarity of the genetic profile in the population group. (Nelson, supra, 43 Cal.4th at pp. 1259-1260.) The court then addressed the question whether the odds calculated by the product rule were relevant, and thus admissible, in a cold hit case and determined that “although the product rule is not the only available method of statistical analysis in a cold hit case, it is relevant and thus admissible.” (Id. at p. 1260.)
In reaching this conclusion, the court reviewed pertinent authorities, including the 1992 and 1996 reports of the National Research Council and U.S. v. Jenkins (D.C. 2005) 887 A.2d 1013, 1019-1020 (Jenkins), and found that four different methods for calculating the significance of a match in a cold hit case have been suggested. The first is the random match probability calculated by use of the product rule. (Nelson, supra, 43 Cal.4th at p. 1261.) The second, which Jenkins suggests is no longer accepted by the relevant scientific community, involves using one set of loci to screen and identify a suspect and then a different set of loci to confirm a match, with the loci used in the screening process then ignored in the statistical evaluation. (Nelson, at pp. 1261-1262.) In the third method, which Jenkins termed “the ‘database match probability’ because it gives the probability of a match from a database” (Nelson, at p. 1262), the expected frequency of the profile is calculated by using the product rule and multiplying the result by the number of profiles in the databank. The result is arguably significant when few loci are tested, but the significance tends to disappear when many loci are tested. (Ibid.) The fourth method focuses on the elimination of other profiles during the search, rather than on the probability of obtaining a match. Under this means of analysis, a match becomes more significant with larger database searches, such that there is a slightly higher probability that the person identified is the source of the DNA than that expressed by random match probability. Accordingly, this method results in evidence somewhat more favorable to the prosecution than does use of the product rule. (Id. at p. 1263.)
The Supreme Court acknowledged that the determination whether the product rule generates relevant evidence is more complicated when the defendant has been located through a database search. (Nelson, supra, 43 Cal.4th at p. 1266.) This is because, as explained by the Jenkins court, “in a non-cold-hit case, the number derived from the product rule ‘represents two concepts: (1) the frequency with which a particular DNA profile would be expected to appear in a population of unrelated people, in other words, how rare is this DNA profile (“rarity statistic”), and (2) the probability of finding a match by randomly selecting one profile from a population of unrelated people, the so-called “random match probability.”’ [Citation.]” (Nelson, at p. 1266.) In a cold hit case, by contrast, the number derived from the product rule no longer accurately represents the probability of finding a matching profile by chance; the fact many profiles were searched increases the probability of finding a match. (Ibid.) “‘In other words, the product rule number no longer accurately expresses the rarity of the DNA profile. Random match probability and rarity, while both identical numbers, represent two distinct and separate concepts. Only one of those concepts is affected by a database search: the random match probability.’ [Citation.]” (Ibid.) As a result, the database match probability (the third method of calculation described above) “‘more accurately represents the chance of finding a cold hit match’.… [Citation.]” (Ibid.)
The Nelson court stated:
“Although the product rule no longer represents the random match probability in a cold hit case, the Jenkins court ultimately agreed with the government’s argument ‘that regardless of the database search, the rarity statistic is still accurately calculated and appropriately considered in assessing the significance of a cold hit.… [W]hile a database search changes the probability of obtaining a match, it does not change how rare the existence of that specific profile is in society as a whole.… This rarity is … both consistent and relevant regardless of the fact that [the defendant’s] identification is the product of a database search.’ [Citation.]
“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.’ [Citation.] We agree with other courts that have considered the question [inter alia, Johnson and Jenkins] 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.’ [Citation.] Thus, the question of how probable it is that the defendant, not the database, is the source of the crime scene DNA remains relevant. [Citation.] The rarity statistic addresses this question.” (Nelson, supra, 43 Cal.4th at pp. 1266-1267.)
The high court concluded the evidence was correctly admitted. (Nelson, supra, 43 Cal.4th at p. 1267.) It explained: “The fact that the match ultimately came about by means of a database search does not deprive the rarity statistic of all relevance. It remains relevant for the jury to learn how rare this particular DNA profile is within the relevant populations and hence how likely it is that someone other than defendant was the source of the crime scene evidence.” (Ibid., fn. omitted.)
Appellant points out that the foregoing cases address the relevance and admissibility of evidence, not its sufficiency, and the fact evidence is admissible does not necessarily make it sufficient to support a verdict. (See Daniels v. Department of Motor Vehicles (1983) 33 Cal.3d 532, 538, fn. 3.) This is true. However, it is also true that the evidence in this case was of a nine-loci DNA profile so rare, in terms of the total world population, that it constituted “powerfully incriminating evidence.” (Johnson, supra, 139 Cal.App.4th at p. 1147.)
This is so even assuming the calculations, or manner in which they were described for or presented to the jury, were somehow inaccurate in terms of precisely what statistic they represented. (See McDaniel v. Brown (2010) 558 U.S. ___, ___ [130 S.Ct. 665, 668, 673] [DNA evidence with random match probability of one in 3, 000, 000 remained “powerful[ly] inculpatory evidence” even though expert overstated probative value and testing after trial showed random match probability of one in 10, 000]; People v. Robinson (2010) 47 Cal.4th 1104, 1142 [while DNA profile match does not guarantee individual is guilty, studies have shown that the chance a positive match does not belong to same person may be less than one in 500 million].) For instance, Nelson observed that statistics derived from the product rule are not the only statistics that are relevant and admissible in a cold hit case; the database match probability statistic might also be admissible. (Nelson, supra, 43 Cal.4th at p. 1267, fn. 3.) Nelson gave an example to help explain this method: “Assume the product rule calculated random match odds of one in 1, 000, 000. If a single suspect were compared and a match found, the result would be surprising unless the suspect were the actual donor of the evidence. But if a database of 100, 000 were searched, the odds – or database match probability – would be about one in 10 that a match would be found even if the actual donor were not in the database. Thus, a match would be less surprising. If the database had a million profiles, at least one match would be expected even if the actual donor was not in the databank.” (Id. at p. 1262.)
In the present case, the prosecution’s expert testified that the sperm donor profile occurred in approximately one in greater than a trillion of the Black, Caucasian, and Hispanic populations. If we were to hypothesize that the databank contained one million profiles, the database match probability would still be one in greater than one million. While these odds might not be so astronomically rare that, for all intents and purposes, they can be said to establish appellant as the source of the sperm fraction found on the oral, anal, and vaginal swabs taken from Dixie (see Nelson, supra, 43 Cal.4th at pp. 1247, 1262, fn. 1; Johnson, supra, 139 Cal.App.4th at p. 1146, fn. 10), the evidence would still be sufficient to uphold the jury’s finding that appellant was the perpetrator. Although there are more than one million people in the world, the evidence established that one of them, appellant – who had already committed a crime in which he attacked a woman who had been in a bar in January, using a ligature around her neck to control her, employing her outer garment in some way, and wanting her blouse removed – lived in Visalia during the months before and after the murder. Jurors reasonably could have inferred that a ligature was used to control Dixie, both initially to make her move to a secluded location and at least start to undress, and then during the forced sex acts. In addition, a butt from the type of cigarette smoked by appellant was found near the body, and appellant mentioned a crime occurring 22 years earlier – the exact time frame of Dixie’s murder – when told by Asuncion that the police were looking for him. These additional factors change the odds considerably.
We discuss the use of the three racial/ethnic groups, post.
According to Nelson, database match probability is calculated by dividing the random match odds by the number of database entries. (See Nelson, supra, 43 Cal.4th at p. 1262 & fn. 1.) Thus, in the present case, one trillion would be divided by one million.
We recognize that appellant challenges admission of the evidence concerning his prior offense. However, in analyzing a claim of insufficiency of the evidence, “‘a reviewing court must consider all of the evidence admitted by the trial court, ’ regardless whether that evidence was admitted erroneously, [citation].” (McDaniel v. Brown, supra, 130 S.Ct. at p. 672.)
Appellant says, however, that because the People failed to present evidence that the perpetrator was a member of one of the racial/ethnic groups for which a statistical analysis was adduced, the People were required to demonstrate the rarity of the profile in society as a whole, as that was the only group representing the entire class of plausible perpetrators. Because the People failed to prove the perpetrator was Caucasian, Hispanic, or African-American – the racial/ethnic groups for which rarity statistics were given – and because significant racial/ethnic populations in California were omitted, the argument runs, “the People failed to offer statistical evidence relevant to the perpetrator’s ethnicity, and thus, the DNA match evidence was insubstantial.”
We disagree. In Wilson, supra, 38 Cal.4th 1237, the prosecution presented evidence of the odds of a similar DNA match with respect to the three most common population groups in the United States – Caucasian, African-American, and Hispanic – despite the fact there was no evidence of the race or ethnicity of the perpetrator aside from evidence the defendant was the perpetrator. (Id. at p. 1240.) The California Supreme Court agreed with our Pizarro opinions (People v. Pizarro, supra, 110 Cal.App.4th at pp. 629-631 & fn. 79; People v. Pizarro (1992) 10 Cal.App.4th 57, 93-94) in condemning the presentation of evidence solely of the odds that a person of the defendant’s population group was the donor of the DNA. (Wilson, supra, 38 Cal.4th at p. 1243.) However, the court rejected the notion that, absent independent evidence of the population group to which the perpetrator belonged, any evidence regarding any particular group was irrelevant and, hence, inadmissible. (Id. at pp. 1244-1245.) The court approved the following statement: “‘In order to determine the significance of the match between defendant’s DNA and the crime scene DNA, it is necessary – and relevant – to establish the likelihood that the crime scene DNA came from another person. There is agreement within the scientific community that genetic frequencies differ for different racial or ethnic populations, and that frequency data would be less accurate without such differentiation. By presenting the data for the major racial components of the population, when there is no independent evidence of the perpetrator’s race, the prosecution presents the data necessary for the jury to evaluate the likelihood that the crime scene DNA came from someone other than the defendant.’” (Id. at p. 1247.) The court also agreed that, “‘as the science underlying DNA comparisons continues to improve, the practical significance of the different racial frequencies diminishes.’” (Id. at p. 1248.) The court found that while presenting the jury with only the most conservative frequency, without mention of ethnicity, or presenting the frequency in the general, nonethnic population “may be acceptable choices in an appropriate case, if such evidence exists, ” there was “no reason to require one of those alternatives instead of giving the jury a range of possible frequencies.” (Id. at p. 1249.)
The court further rejected the notion that the evidence before it was improperly admitted because frequency ranges were given only for the three most common population groups, rather than all possible groups to which the perpetrator could have belonged. (Wilson, supra, 38 Cal.4th at pp. 1249-1250.) The court stated: “Although giving results for all possible population groups would be permissible, doing so is not required to give relevance to the range of possibilities. Furthermore, it is not clear whether it is realistically feasible to include all population groups.… In this case, [the criminalist] provided information regarding the three most numerous population groups. This made her testimony relevant and admissible.” (Id. at p. 1250.)
Appellant points out that Wilson concerned admissibility, not sufficiency, of the evidence. In reviewing the sufficiency of evidence, however, we do not separate the DNA evidence from the non-DNA evidence, but instead view all as a whole. The evidence presented here, viewed in that manner, was sufficient. Not only was there the DNA evidence, but there were also the other factors, such as appellant’s prior offense, that we discussed, ante. “An ‘appellate court’s reversal for insufficiency of the evidence is in effect a determination that the government’s case against the defendant was so lacking that the trial court should have entered a judgment of acquittal.’ [Citation.]” (McDaniel v. Brown, supra, 130 S.Ct. at p. 672.) Appellant was not entitled to a judgment of acquittal here, nor is he entitled to reversal for insufficient evidence on appeal.
That evidence of the uncharged incident was not sufficient, in and of itself, to establish guilt does not mean it lacked all probative value. The same is true of the cigarette butt found by the body.
C. The Robbery-Murder Special Circumstance
Appellant also contends the evidence was insufficient to sustain the jury’s special circumstance finding that the murder was committed while appellant was engaged in the commission of robbery. Appellant says there was no evidence Dixie was in possession of any of the purportedly missing items when she left PJ Shannon’s, and no evidence that she was killed by someone attempting to steal any of the items.
We are not sure why the robbery-murder special circumstance matters. Jurors also found true rape-murder and sodomy-murder special circumstances. Even if we were to strike one special circumstance, the existence of the other two would mandate that appellant receive a sentence of at least life in prison without the possibility of parole (§ 190.2, subd. (a); see People v. George (1984) 157 Cal.App.3d 1053, 1056), and so we fail to see how appellant could have been prejudiced (cf. People v. Mungia (2008) 44 Cal.4th 1101, 1139; People v. Johnson (1993) 6 Cal.4th 1, 38, overruled on another ground in People v. Rogers (2006) 39 Cal.4th 826, 879).
Nevertheless, applying the general principles of law set out, ante, which also apply to a challenge involving a special circumstance (People v. Mayfield (1997) 14 Cal.4th 668, 790-791), we conclude there was sufficient evidence to sustain the jury’s finding on the robbery-murder special circumstance.
“Robbery is the taking of ‘personal property in the possession of another against the will and from the person or immediate presence of that person accomplished by means of force or fear and with the specific intent permanently to deprive such person of such property.’ [Citation.] Both robbery and felony murder based on robbery require that the intent to rob arise before force or fear is applied. Thus, ‘[i]f the defendant does not harbor the intent to take property from the possessor at the time he applies force or fear, the taking is only a theft, not a robbery.’ [Citation.] Similarly, ‘an intent to steal that arises after the infliction of the fatal wounds cannot support a felony-murder conviction.’ [Citation.] Finally, the special circumstance of murder during the commission of a robbery requires that the murder be committed ‘in order to advance [the] independent felonious purpose’ of robbery. [Citations.] A robbery that is merely incidental to a murder does not suffice. [Citation.]” (People v. Lewis (2008) 43 Cal.4th 415, 464-465.)
“If the other elements are satisfied, the crime of robbery is complete without regard to the value of the property taken. [Citations.]” (People v. Tafoya (2007) 42 Cal.4th 147, 170.)
At trial, the prosecution’s theory of robbery was based on Dixie’s purse, watch, bra, and possibly panties, having been taken. The prosecutor told the jury: “We have robbery. What do I have to prove? The defendant took the property that was not his own. [¶] We have missing a purse, a watch, a bra, and they didn’t find any panties at the scene, either.”
Appellant first argues there was no evidence Dixie had the missing items in her possession when she was killed. We agree with respect to the panties, but not the other items. No purse, watch, bra, or undergarments were found at the scene. There were abrasions on Dixie’s wrist that were consistent with a watch or something else with an expanding band having been forcibly pulled off. Frank told Sergeant Gomes that when he dropped Dixie off at the bar, she was in possession of a purse. Patricia Condo, Dixie’s sister, testified that she and Dixie were very close before Dixie was killed, that Condo had been to visit a couple of weeks before Dixie’s death, and that every time she visited, she and Dixie would go out. According to Condo, when Dixie went out, she would always take a purse and wear her watch. In addition, she always wore a bra when she left the house. Condo said Dixie “wouldn’t go out to the store without a bra on.”
“Any otherwise admissible evidence of habit or custom is admissible to prove conduct on a specified occasion in conformity with the habit or custom.” (Evid. Code, § 1105.) Here, there was sufficient evidence of habit or custom from which jurors reasonably could have inferred Dixie had in her possession a purse, watch, and bra at the time she arrived at the bar. (See, e.g., People v. Marks (2003) 31 Cal.4th 197, 230-231 [use of habit evidence to support finding of robbery]; People v. Webb (1993) 6 Cal.4th 494, 529 [same]; People v. McPeters (1992) 2 Cal.4th 1148, 1178 [same], disapproved on another ground in Verdin v. Superior Court (2008) 43 Cal.4th 1096, 1106-1107.) There was no evidence suggesting her watch or bra were removed at the bar. As for the possibility she left her purse there, Dorian Alvin, the bartender at PJ Shannon’s, recalled asking Dixie if she wanted him to call her a cab. A reasonable inference is that she had the means to pay for a taxi, which suggests she had her purse with her. Appellant says that if she was “walking around drunk from bar to bar, she could have left her purse anywhere.” This is sheer speculation, however, especially when Alvin expressed no concern over her state of intoxication, but rather over the fact she was going to be walking late on a “dreary” night. Under the circumstances, a rational trier of fact could have concluded Dixie was in possession of her purse, watch, and bra at the time she was killed.
Appellant next says that even if Dixie possessed the items at the time she was attacked, and that appellant attacked her, there was still no evidence appellant was the one who took the items. Appellant speculates that there could have been an initial struggle on the sidewalk, and that Dixie’s purse could have fallen to the ground and the watch been torn off her wrist during that struggle, thus explaining why the items were not found with Dixie’s body. This scenario does not, of course, explain the missing bra. In any event, jurors rationally could have concluded, from all the circumstances (including the presence of appellant’s semen and appellant’s commission of a prior robbery), that appellant accosted Dixie and took the missing items.
Third, appellant says there was no proof Dixie was killed while appellant was attempting to take her property by force, and that robbery can only occur if property was taken while the victim was alive. Appellant appears to misunderstand the law in this regard: It is the timing of the formation of the perpetrator’s intent, not the timing of the taking itself, that is paramount.
As the California Supreme Court has stated, in order for robbery to occur, “[t]he intent to steal must be formed either before or during the commission of the act of force. [Citations.]” (People v. Tafoya, supra, 42 Cal.4th at p. 170, italics added; accord, People v. Marshall, supra, 15 Cal.4th at p. 34.) Thus, “[i]f the defendant does not harbor the intent to take property from the possessor at the time he applies force or fear, the taking is only a theft, not a robbery. [Citation.]” (People v. Davis (2005) 36 Cal.4th 510, 562, italics added.) Similarly, a robbery-felony-murder theory is not satisfied if the intent to rob arose only after infliction of the fatal wound. (People v. Hughes (2002) 27 Cal.4th 287, 356.) On the other hand, “[w]hile it may be true that one cannot rob a person who is already dead when one first arrives on the scene, one can certainly rob a living person by killing that person and then taking his or her property. [Citation.]” (People v. Navarette (2003) 30 Cal.4th 458, 499.) “‘[I]t is settled that a victim of robbery may be unconscious or even dead when the property is taken, so long as the defendant used force against the victim to take the property.’ [Citations.] There is no requirement a victim be aware that someone was taking his or her property. [Citation.] It was [appellant] who applied the force to this victim, and substantial evidence was presented to show that he did so with the intent to steal. We thus reject his arguments.” (People v. Abilez (2007) 41 Cal.4th 472, 507.)
Last, appellant says there is no evidence he killed Dixie for the purpose of obtaining her property. In this regard, “[f]or a felony-murder special circumstance to apply, the felony cannot be merely ‘incidental or ancillary to the murder’; it must demonstrate ‘an independent felonious purpose, ’ not an intent ‘simply to kill.’ [Citations.] But even if a defendant harbored the intent to kill at the outset, a concurrent intent to commit an eligible felony will support the special circumstance allegation. [Citations.]” (People v. Davis (2009) 46 Cal.4th 539, 609.)
The California Supreme Court has said that “‘when one kills another and takes substantial property from the victim, it is ordinarily reasonable to presume the killing was for purposes of robbery.’ [Citation.] And, significantly, [that court has] observed that ‘[i]f a person commits a murder, and after doing so takes the victim’s wallet, the jury may reasonably infer that the murder was committed for the purpose of obtaining the wallet, because murders are commonly committed to obtain money.’ [Citation.]” (People v. Hughes, supra, 27 Cal.4th at p. 357, italics omitted; compare People v. Marshall, supra, 15 Cal.4th at pp. 34-35 [insufficient evidence where only property taken was “‘insignificant’” letter to victim from a grocery market regarding victim’s request for check-cashing card].) Although perhaps not overwhelming, the evidence was sufficient to permit the jury to conclude appellant intended to steal Dixie’s possessions before he killed her. (See People v. Kelly (1992) 1 Cal.4th 495, 529.)
II
Ineffective Assistance of Counsel
In a claim related to his argument concerning the purported insufficiency of the DNA evidence to identify him as the perpetrator, appellant says defense counsel’s performance was constitutionally defective because he failed to (1) object when the prosecution’s DNA expert presented population statistics as evidence of random match probability, and (2) request a limiting instruction to prevent the jury from considering the statistics as evidence of random match probability. We find no cause for reversal.
The burden of proving ineffective assistance of counsel is on the defendant. (People v. Pope (1979) 23 Cal.3d 412, 425.) “To secure reversal of a conviction upon the ground of ineffective assistance of counsel under either the state or federal Constitution, a defendant must establish (1) that defense counsel’s performance fell below an objective standard of reasonableness, i.e., that counsel’s performance did not meet the standard to be expected of a reasonably competent attorney, and (2) that there is a reasonable probability that defendant would have obtained a more favorable result absent counsel’s shortcomings. [Citations.] ‘A reasonable probability is a probability sufficient to undermine confidence in the outcome.’ [Citation.]” (People v. Cunningham (2001) 25 Cal.4th 926, 1003; see generally Strickland v. Washington (1984) 466 U.S. 668, 687-694.)
“If the record contains no explanation for the challenged behavior, an appellate court will reject the claim of ineffective assistance ‘unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation. [Citation.]” (People v. Kipp (1998) 18 Cal.4th 349, 367.) In other words, “in assessing a Sixth Amendment attack on trial counsel’s adequacy mounted on direct appeal, competency is presumed unless the record affirmatively excludes a rational basis for the trial attorney’s choice. [Citations.]” (People v. Musselwhite (1998) 17 Cal.4th 1216, 1260.)
In the present case, defense counsel clearly made the tactical decision not to dispute that appellant’s DNA was found inside Dixie, but rather to assert that their sexual activity was consensual and did not necessarily occur on the night of the murder. The record on appeal sheds no light on why counsel acted as he did; he was not asked to explain his performance, and we cannot conclude no satisfactory explanation could be provided. (People v. Bell (1989) 49 Cal.3d 502, 546; see People v. Baylor (2002) 97 Cal.App.4th 504, 509-510.) A trial attorney’s tactical decisions are accorded substantial deference (People v. Riel (2000) 22 Cal.4th 1153, 1185), “‘and counsel’s decisionmaking must be evaluated in the context of the available facts. [Citation.]’” (People v. Catlin (2001) 26 Cal.4th 81, 163.) Just because a strategy has little or no hope of succeeding does not mean defense counsel was incompetent for trying it (People v. Scott (1997) 15 Cal.4th 1188, 1215), and here, given the inability of the expert to say how long the sperm was present and the lack of genital trauma, defense counsel’s tactic was not without some basis in the evidence.
In any event, we need not – and do not – decide whether defense counsel erred in any or both of the ways appellant now claims, because appellant has failed to prove prejudice as a demonstrable reality. (People v. McPeters, supra, 2 Cal.4th at p. 1177; In re Fields (1990) 51 Cal.3d 1063, 1079.) He simply has not shown that the population statistics could not, and, in the face of an objection, would not have been calculated and presented in another manner, or that so presenting them would have made any practical difference. (See Nelson, supra, 43 Cal.4th at p. 1262, fn. 1; Johnson, supra, 139 Cal.App.4th at p. 1155, fn. 19.)
III
Statute of Limitations
Appellant says counts 2 and 3 are time-barred by the statute of limitations. Respondent appropriately concedes the issue.
The information alleged that counts 2 and 3 were committed on or about January 27, 1985. At the time, as the maximum punishment for each offense was eight years (former § 264; § 286, former subd. (c)), the statute of limitations for each offense was six years (former § 800), and so prosecution had to be commenced by January 27, 1991. The information alleged that the statute of limitations had been revived and extended as to each count pursuant to section 803, subdivision (g)(1). This statute, which became effective on January 1, 2001, as former subdivision (h) of section 803 (see Stats. 2000, ch. 235, § 1), provided, in certain cases, for commencement of prosecution within one year from the date on which the identity of the suspect was conclusively established by DNA testing. (§ 803, former subd. (h)(1).) Because the statute of limitations applicable to counts 2 and 3 had already expired when section 803, former subdivision (h) went into effect, however, that statute could not resurrect the time-barred prosecution of those counts. (Stogner v. California (2003) 539 U.S. 607, 615-616, 632-633; People v. Robinson, supra, 47 Cal.4th at p. 1112 & fn. 2; compare In re White (2008) 163 Cal.App.4th 1576, 1583 [extension of statute of limitations period before expiration is constitutionally permissible].)
As originally enacted, former subdivision (h)(1) of section 803 also provided for a 10-year statute of limitations for prosecution of certain sex offenses where the limitations period set forth in section 800 had not expired as of January 1, 2001.
Appellant did not raise the statute of limitations issue in the trial court. Nevertheless, where, as here, “the charging document indicates on its face that the charge is untimely, absent an express waiver, a defendant convicted of that charge may raise the statute of limitations at any time.” (People v. Williams (1999) 21 Cal.4th 335, 338; see People v. Crosby (1962) 58 Cal.2d 713, 722.) Appellant’s conviction and sentence on counts 2 and 3 must be vacated, and the fee imposed pursuant to section 1465.8 recalculated accordingly.
That prosecution on counts 2 and 3 was time-barred does not affect the rape-murder and sodomy-murder special circumstances. (People v. Morris (1988) 46 Cal.3d 1, 14-18, disapproved on another ground in In re Sassounian (1995) 9 Cal.4th 535, 543, fn. 5, 545, fn. 6.)
IV
Other Crimes Evidence
Testimony concerning appellant’s prior uncharged robbery is set out in the statement of facts, ante. Appellant contends the trial court erred by admitting the evidence, and by instructing the jury that it could be considered on the issues of intent to commit robbery and common scheme to commit robbery and sexual assault.
A. Background
Prior to trial, the People sought admission of appellant’s prior crimes – a 1963 violation of section 220 (assault with intent to commit rape) and a 1976 violation of section 211 (robbery), both of which resulted in criminal convictions – pursuant to Evidence Code sections 1101, subdivision (b), 1108, and 1109. The prosecutor represented that in the 1963 incident, appellant drove past a residence in Lindsay several times, then stopped, said he was having car trouble, and asked to use the phone. Two women lived there; one, the victim, said yes. Appellant went to the back and pretended to have some trouble with the phone. He then grabbed the victim by the neck and began dragging her out of the house and into an adjacent orchard. He was interrupted by a neighbor who had been summoned by the victim’s roommate. In the 1976 incident, appellant was in a bar in Tulare. He waited several hours until all of the other customers left, then went to use the phone. He told the waitress he was having difficulty with the phone and asked if she could help. She was dialing the numbers when he put a coat hanger around her neck and began choking her. She was able to get her hand underneath the coat hanger. He ordered her to go into one of the bathrooms and disrobe. She began trying to convince him not to rape her, and told him he could have the money. He ended up taking the money and also her sweater. He was found down the street with the proceeds of the robbery in his pocket.
Although the prosecutor mentioned Evidence Code section 1109, no argument or ruling was made under that statute, presumably because it involves prior acts of domestic violence (id., subd. (a)(1)), elder or dependent-person abuse (id., subd. (a)(2)), and child abuse (id., subd. (a)(3)), none of which was involved here. Accordingly, we do not address it further.
Defense counsel argued that the 1963 incident was too remote in time and prejudicial. As to the 1976 incident, appellant was charged with robbery, not any type of sex offense; he used a coat hanger for the purpose of putting the victim in the bathroom so she would not call the police, and he ripped the phone off the hook. According to the police report, the victim was not afraid of being raped by appellant.
The court found a common thread in the two prior incidents, specifically the focus on the victim’s neck. The court observed that there were 13 years between the 1963 and 1976 incidents, then nine years between the 1976 incident and the charged offense, with the time periods interrupted by appellant’s incarceration following the 1963 and 1976 incidents. The court found the uncharged incidents to be probative circumstantial evidence and relevant under Evidence Code section 1108, and not so remote under the circumstances that they should be excluded under Evidence Code section 352. The court did not reach the issue of admissibility under Evidence Code section 1101, subdivision (b).
The 1963 incident ultimately was not presented to the jury. Because the victim in that case was deceased and there was no preserved testimony, the prosecutor determined that he could only use the incident in rebuttal or for impeachment, should appellant testify. Appellant did not testify.
During trial, the court reconsidered its ruling and determined that an insufficient corpus delicti of a sexual offense existed so as to permit the 1976 incident to be admitted under Evidence Code section 1108. The prosecutor contended the incident nevertheless was admissible under Evidence Code section 1101, subdivision (b) to show intent and, given the method used to control the victims, common scheme and plan. Defense counsel responded that the evidence was too prejudicial and not probative, as it was remote and there was no intent to commit rape apparent in the 1976 case. The court observed that for the robbery-murder special circumstance, the People had to prove appellant intended to commit robbery independent of, and not incidental to, the killing, and that he intended to commit robbery before or at the time of the act causing death. The court found sufficient similarities between the charged and uncharged events – particularly the isolated location and application of a ligature in the same way – to permit admission to show intent, and also found the evidence substantially probative and not unduly prejudicial. The court noted the evidence would also come in under common scheme or design, as the analysis was similar.
At the conclusion of Garcia Avalos’s testimony, the court told jurors that the evidence was only admissible concerning issues relating to the allegations involving robbery, and not to any other offenses. During defense counsel’s cross-examination of Sergeant Sumpter concerning Sumpter’s March 2007 interview of Garcia Avalos and whether there was any mention of sex in the transcript of her preliminary hearing testimony in the robbery case, the court cautioned the jurors, “And again, ladies and gentlemen, the evidence comes in only as to issues pertaining to robbery. It does not come in as to any issue involving sexual assault.”
Garcia Avalos’s testimony from the preliminary hearing was later read to the jury. The court subsequently informed counsel it had reconsidered its ruling and was now inclined to allow consideration of the evidence as part of a scheme to commit a sexual assault as alleged in the present case, and it invited argument on the issue. The prosecutor observed that in the course of cross-examination at the preliminary hearing, Garcia Avalos testified that during the approximately three minutes she and appellant were by the phone with the hanger around her neck, appellant did not say anything about wanting money, and only demanded that she go into the restroom. It was only after she essentially directed him toward the cash register that he ended up going there and getting the money. After, he took her back to the restrooms, and ordered her to her knees and to disrobe. The prosecutor argued that appellant demonstrated a clear sexual motive and scheme, and that he used strangulation to control the victim and get her to do what he wished, which included taking off her clothes.
Defense counsel suggested Garcia Avalos’s perception of time may have been exaggerated. Counsel also argued that the preliminary hearing transcript contained no mention of the word “‘sex’” or any kind of sexual conduct by appellant, and that Garcia Avalos was never in fear of sex as being a component of the crime.
The court observed that the coat hanger was around Garcia Avalos’s neck at the telephone and during the movement to the bar and the movement into the restroom. It concluded it was for the trier of fact to determine what weight, if any, to give to the evidence, and it found sufficient foundation had been laid for its admission. The court subsequently instructed the jury, pursuant to CALCRIM No. 375:
The court offered defense counsel the opportunity to reopen his case in light of the changed ruling, but counsel declined.
“The People presented evidence that Mr. Gomez committed another offense relating to an incident in 1976 involving Margie Avalos, and that incident was not charged in this case.
“You may consider this evidence only if the People have proved by a preponderance of the evidence that the defendant, in fact, committed the uncharged offense and conduct.…
“If the People have not met this burden, you must disregard this evidence entirely.
“If you decide that the defendant committed the uncharged offense, you may, but are not required to, consider that evidence for the limited purpose of deciding:
“One, … whether or not Mr. Gomez acted with the intent to commit the crime of robbery before or at the time of the act causing death and whether or not the defendant intended to commit the crime of robbery independent of the killing.
“If you decide that the defendant committed the uncharged offense, you may, but are not required to, consider that evidence for another limited purpose in deciding whether or not the defendant had a scheme to commit the offense of robbery as alleged in this case.
“Now, yesterday … when that evidence relating to 1976 occurred, I told you that it was coming in for a … limited purpose, only as to the robbery. I’ve revisited that, and I’m changing that direction in this manner:
“If you decide that the defendant committed the uncharged offense, you may, but are not required to, consider that evidence for the limited purpose of deciding whether or not the defendant had a scheme to commit a sexual assault as alleged in this case.
“Again, these are limiting instructions. You may only consider that evidence for the limited purpose that I’m directing you and limiting you to.
“In evaluating this evidence, consider the similarity or lack of similarity between the uncharged offense and the charged offense.
“Do not consider this evidence for any other purpose.
“Do not conclude from the 1976 evidence that the defendant has a bad character or is disposed to commit a crime.
“If you conclude that the defendant committed the uncharged offense, that conclusion is only one factor to consider, along with all the other evidence. It is not sufficient by itself to prove that the defendant is guilty of murder, of Counts 2 or of Count 3 or of any of the special circumstances alleged. The People … must still prove the charge and allegations beyond a reasonable doubt.”
B. Analysis
The California Supreme Court has summarized the principles of law applicable to admissibility of other crimes evidence as follows:
“Evidence Code section 1101, subdivision (a) generally prohibits the admission of evidence of a prior criminal act against a criminal defendant ‘when offered to prove his or her conduct on a specified occasion.” Subdivision (b) of that section, however, provides that such evidence is admissible when relevant to prove some fact in issue, such as motive, intent, knowledge, identity, or the existence of a common design or plan.
“‘The admissibility of other crimes evidence depends on (1) the materiality of the facts sought to be proved, (2) the tendency of the uncharged crimes to prove those facts, and (3) the existence of any rule or policy requiring exclusion of the evidence.’ [Citation.] Evidence may be excluded under Evidence Code section 352 if its probative value is ‘substantially outweighed by the probability that its admission would create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.’ [Citation.] ‘Because substantial prejudice is inherent in the case of uncharged offenses, such evidence is admissible only if it has substantial probative value.’ [Citation.]
“We have considered specific circumstances under which evidence of uncharged crimes may be admitted under subdivision (b) of Evidence Code section 1101. When the prosecution seeks to prove the defendant’s identity as the perpetrator of the charged offense with evidence he had committed uncharged offenses, the admissibility of evidence of the uncharged offenses turns on proof that the charged and uncharged offenses share sufficient distinctive common features to raise an inference of identity. A lesser degree of similarity is required to establish the existence of a common plan or scheme and still less similarity is required to establish intent. [Citations.]” (People v. Lindberg (2008) 45 Cal.4th 1, 22-23; see also, e.g., People v. Kelly (2007) 42 Cal.4th 763, 782-783; People v. Ewoldt (1994) 7 Cal.4th 380, 402-403.)
“We review for abuse of discretion a trial court’s rulings on relevance and admission or exclusion of evidence under Evidence Code sections 1101 and 352. [Citations.]” (People v. Harrison (2005) 35 Cal.4th 208, 230.) “[D]iscretion is abused whenever the court exceeds the bounds of reason, all of the circumstances being considered. [Citations.]” (People v. Giminez (1975) 14 Cal.3d 68, 72; accord, People v. Bradford (1997) 15 Cal.4th 1229, 1315.)
By pleading not guilty, appellant placed all elements of the murder, as well as the robbery-murder, rape-murder, and sodomy-murder special circumstances, in issue at trial. (See People v. Lindberg, supra, 45 Cal.4th at p. 23.) Viewed in the light most favorable to the trial court’s admission of appellant’s 1976 offense (see People v. Kipp, supra, 18 Cal.4th at p. 370), the evidence shows the following similarities between the charged and uncharged events:
● Each victim was closely and immediately connected to a bar, either because she was accosted while in one or because she was accosted after leaving one.
● Both crimes occurred in January.
● Both crimes occurred on occasions on which the bar was not busy.
● Each victim was wearing a blouse and an outer garment.
● Appellant, who was standing, ordered Garcia Avalos to kneel, which, had she done so, inferentially would have placed her head in the region of his genitals; dirt or mud and abrasions were found on at least one of Dixie’s knees, and there was sperm in her mouth.
● Appellant made Garcia Avalos remove her own clothing; it can reasonably be inferred, given the orderly placement of shoes and gloves, that Dixie was made to remove her own clothing.
● Appellant used a coat hanger around Garcia Avalos’s neck to control her and direct her; it can reasonably be inferred that Dixie would not willingly have gone to so secluded an area at night with a stranger and, given the presence of ligature marks on Dixie’s neck and the absence of drag marks at the scene, that something was placed around her neck to control and direct her.
● Appellant ordered Garcia Avalos to remove her sweater and blouse; Dixie’s jacket and blouse were removed.
● Appellant used Garcia Avalos’s jacket for a specific purpose connected to the crime; Dixie’s blouse and jacket were used for specific purposes connected to the crimes.
● Appellant had Garcia Avalos hand him money from the cash register; Dixie’s purse, along with her watch and bra, were missing.
Appellant first contends the uncharged offense was not relevant to prove intent to rob, essentially because, he says, “commonalities are superficial while dissimilarities are significant.” Even when identity is at issue, however, “the charged and uncharged crimes need not be mirror images of each other.” (People v. Carter (2005) 36 Cal.4th 1114, 1148.) “To be admissible to show intent, … the prior conduct and the charged offense need only be sufficiently similar to support the inference that defendant probably harbored the same intent in each instance. [Citation.]” (People v. Yeoman (2003) 31 Cal.4th 93, 121-122.) Considering the similarities not in isolation, but rather as a whole, we conclude the trial court did not exceed the bounds of reason by admitting appellant’s prior conduct on the issue of his intent to rob Dixie. (See, e.g., People v. Jones (2011) 51 Cal.4th 346, 370-371 [evidence of defendant’s participation in robbery of three men leaving store where worked properly admitted in trial of charged home invasion and murder; though crimes were not particularly similar, “they contained one crucial point of similarity – the intent to steal from victims whom defendant selected”]; People v. Daniels (2009) 176 Cal.App.4th 304, 315-316 [1990 (uncharged) events and 2005 (charged) events sufficiently similar to support inference that defendant harbored same intent (to rape) on both occasions; each time, defendant encountered female stranger in her 20’s at a bar early on a Sunday morning, followed her, approached her when she was alone and vulnerable, and ultimately isolated her on a bed in a bedroom].)
We do not mean to suggest the uncharged offense could have been admitted to prove identity in the present case.
Appellant further says the evidence of the uncharged crime was not relevant to show a common scheme or plan to commit robbery or sexual assault. Recognizing that in order to be admissible to show a common scheme or plan, a greater degree of similarity is required than is needed to be admissible to show intent (People v. Davis, supra, 46 Cal.4th at p. 602; People v. Ewoldt, supra, 7 Cal.4th at p. 403), we disagree.
“To establish a common design or plan, the evidence must demonstrate not merely a similarity in the results, but ‘“such a concurrence of common features that the various acts are naturally to be explained as caused by a general plan of which they are the individual manifestations.” [Citation.]’ [Citation.]” (People v. Balcom (1994) 7 Cal.4th 414, 423-424.) “To be relevant, the plan, as established by the similarities between the charged and uncharged offenses, need not be distinctive or unusual. Evidence that the defendant possessed a plan to commit the type of crime with which he or she is charged is relevant to prove the defendant employed that plan and committed the charged offense.… ‘[T]he plan … need only exist to support the inference that the defendant employed that plan in committing the charged offense. [Citation.]’ [Citation.]” (Id. at p. 424; People v. Ewoldt, supra, 7 Cal.4th at p. 403.)
Here, appellant’s 1976 offense shares sufficient features in common with the charged offenses so as to support an inference that both were “manifestations of a common design.” (People v. Balcom, supra, 7 Cal.4th at p. 424.) Although Garcia Avalos was not sexually assaulted, the sexual overtones of appellant’s conduct are eminently clear, as the trial court implicitly recognized. In our view, the common features indicate “the existence of a plan rather than a series of similar spontaneous acts, ” as required for admissibility. (People v. Ewoldt, supra, 7 Cal.4th at p. 403.) Although there were dissimilarities, which appellant emphasizes, “these specific differences, …, do not negate the basic similarity between the two incidents or render unreasonable the inference therefrom that [appellant] acted according to a common design or plan. Rather, these differences affect the strength of the inference.” (People v. Dancer (1996) 45 Cal.App.4th 1677, 1690, disapproved on another ground in People v. Hammon (1997) 15 Cal.4th 1117, 1123.)
Since evidence of the uncharged conduct was not admitted, and the jury was not permitted to consider it, for purposes of establishing a common design or plan to kill, the fact there was no similarity of results in that manner did not render evidence of the uncharged event inadmissible. (See People v. Davis, supra, 46 Cal.4th at pp. 550, 560, 561, 602-603 [prior crimes against two living victims properly admitted to provide evidence of common scheme or plan and intent to commit sexual assault or lewd act where victim of charged offenses was killed]; see also People v. Gray (2005) 37 Cal.4th 168, 204 [rejecting claim evidence of uncharged crimes gave jury no basis from which to infer what he might have intended when he committed the charged crimes; that victims of uncharged offenses survived did not strongly distinguish defendant’s uncharged 1983 crimes from charged 1987 crimes that resulted in victim’s death].)
Concluding the trial court properly found the evidence admissible under Evidence Code section 1101, subdivision (b) does not end our inquiry; we must also determine whether the evidence should have been excluded pursuant to Evidence Code section 352. Under that section, “the trial court enjoys broad discretion in assessing whether the probative value of particular evidence is outweighed by concerns of undue prejudice, confusion or consumption of time.” (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124-1125.) The “prejudice” referred to in the statute “charateriz[es] evidence that uniquely tends to evoke an emotional bias against a party as an individual, while having only slight probative value with regard to the issues. [Citation.]” (People v. Crittenden (1994) 9 Cal.4th 83, 134.)
Evidence Code section 352 provides: “The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.”
The assessment of probative value versus the potential for prejudice requires consideration of “such factors as [the prior offense’s] nature, relevance, and possible remoteness, the degree of certainty of its commission and the likelihood of confusing, misleading, or distracting the jurors from their main inquiry, its similarity to the charged offense, its likely prejudicial impact on the jurors, the burden on the defendant in defending against the uncharged offense, and the availability of less prejudicial alternatives to its outright admission, such as admitting some but not all of the defendant’s other … offenses, or excluding irrelevant though inflammatory details surrounding the offense. [Citations.]” (People v. Falsetta (1999) 21 Cal.4th 903, 917.) Other pertinent factors include whether the uncharged conduct is more inflammatory than the charged acts, whether jurors might confuse the charged and uncharged acts and seek to punish the defendant for the uncharged acts, and the time required to present the evidence of the uncharged acts. (People v. Daniels, supra, 176 Cal.App.4th at p. 317.)
In the present case, there were significant similarities between the charged and uncharged events, giving the challenged evidence substantial probative value. Appellant’s uncharged conduct was much less inflammatory than the charged conduct; there was sufficient distinctiveness between the uncharged and charged events so as to negate any likelihood of juror confusion; presentation of the evidence of the uncharged events took little time; and, because the prior serious felony enhancement allegation arising out of the 1976 event was tried to the jury, jurors learned appellant had been convicted of the 1976 robbery. This eliminated the possibility jurors would seek to punish him for that offense, as well as any uncertainty about its commission or any burden on appellant to defend against that offense. (See People v. Jones, supra, 51 Cal.4th at pp. 371-372.) Although the uncharged offense took place some nine years before the charged events, it was not unduly remote, especially since appellant was incarcerated for part of that time. (See, e.g., People v. Daniels, supra, 176 Cal.App.4th at p. 317 [15 years not remote because defendant incarcerated for “vast majority” of period]; People v. Waples (2000) 79 Cal.App.4th 1389, 1395 [20 years “not too remote”]; People v. Dancer, supra, 45 Cal.App.4th at p. 1691 [11 years tended to “degrade” probative value of prior conduct, but did not, by itself, warrant or compel exclusion].) In addition, the trial court instructed the jury on the proper purposes for which it could consider the evidence, and limited any prejudicial impact by telling jurors they could not consider the evidence to prove appellant had a bad character or was disposed to commit a crime. (People v. Jones, supra, 51 Cal.4th at p. 371; People v. Lewis (2000) 25 Cal.4th 610, 637.) We presume jurors followed these instructions. (People v. Jones, supra, at p. 371.)
Appellant says, however, that the jury was never specifically instructed that evidence of the uncharged event could not be considered on the issue of identity. He points out that the written instruction bore the title “375 Evidence of Uncharged Offense to Prove Identity, Intent, Common Plan, etc.” and argues that jurors could have construed the instruction to mean that common scheme evidence could be considered on the issue of identity. We do not find the title of the instruction material in light of the forceful limitations the trial court placed on the jury’s use of the evidence. Jurors were not told they could consider the evidence to prove identity, and they were instructed they could not consider it for any purpose other than what the trial court stated, i.e., deciding whether appellant acted with the intent to commit robbery before or at the time of the act causing death, whether he intended to commit robbery independent of the killing, whether he had a scheme to commit robbery, and whether he had a scheme to commit sexual assault. That the existence of a common scheme or plan may tend to establish identity does not mean jurors would use evidence of the uncharged acts on the issue of identity even though the evidence was not admitted for that purpose. Considering the instructions as a whole, there is simply no reasonable likelihood jurors applied CALCRIM No. 375 in the manner asserted by appellant. (See Estelle v. McGuire (1991) 502 U.S. 62, 72.)
In People v.Ewoldt, supra, 7 Cal.4th at page 394, footnote 2, the California Supreme Court noted a “subtle but significant” distinction between the use of evidence of uncharged acts to establish the existence of a common design or plan, versus the use of such evidence to prove intent or identity. The court stated: “Evidence of intent is admissible to prove that, if the defendant committed the act alleged, he or she did so with the intent that comprises an element of the charged offense. ‘In proving intent, the act is conceded or assumed; what is sought is the state of mind that accompanied it.’ [Citation.] … Evidence of a common design or plan is admissible to establish that the defendant committed the act alleged. Unlike evidence used to prove intent, where the act is conceded or assumed, ‘[i]n proving design, the act is still undetermined.…’ [Citation.] … [¶] Evidence of identity is admissible where it is conceded or assumed that the charged offense was committed by someone, in order to prove that the defendant was the perpetrator.”
V
Jury Instructions
As set out in the statement of facts, ante, Asuncion testified that after she told appellant the police were looking for him, appellant went to the bathroom. She did not remember any papers being thrown away. According to Sumpter, however, when he spoke to Asuncion on March 14, 2007, Asuncion related that when she and appellant were talking about why the police had been there, appellant said he was a witness to a murder 22 years earlier. According to Asuncion, appellant became pale and had diarrhea, and he started throwing away “a whole bunch of papers” that were in his room. Asuncion said appellant threw them in a dumpster behind the store around the corner.
In connection with this evidence, the trial court instructed the jury on consciousness of guilt based on suppression of evidence (CALCRIM No. 371) and false statements (CALCRIM No. 362), and on adoptive admissions (CALCRIM No. 357). Appellant now says the giving of these instructions was error. Because there was insufficient evidentiary support for them, he claims, they permitted the jury to draw irrational permissive inferences of guilt and thereby violated his federal due process rights. We find no cause for reversal.
With respect to each of the challenged instructions, there is a question whether the claim of error was preserved for appeal. Insofar as we can determine, the evidence to which the instructions related was admitted without objection. The jury instruction conference was not held on the record, which contains no suggestion appellant either requested any of the instructions, or objected to them or requested clarifying or amplifying language. (See People v. Jackson (1996) 13 Cal.4th 1164, 1223; People v. Spurlock (2003) 114 Cal.App.4th 1122, 1130.) The California Supreme Court has not been consistent concerning whether a failure to object to these instructions forfeits a claim they were improperly given because they were unsupported by the evidence. (Compare People v. Geier (2007) 41 Cal.4th 555, 590 and People v. Valdez (2004) 32 Cal.4th 73, 137 with People v. Benevides (2005) 35 Cal.4th 69, 99-100 and People v. Hannon (1977) 19 Cal.3d 588, 597, disapproved on another ground in People v. Martinez (2000) 22 Cal.4th 750, 762-763.) Under section 1259, an appellate court “may … review any instruction given, refused or modified, even though no objection was made thereto in the lower court, if the substantial rights of the defendant were affected thereby.” Because appellant’s substantial rights were affected if he is correct in his claim that the giving of one or more of these instructions violated due process, we will address the matter on the merits.
A. General Legal Principles
“It is an elementary principle of law that before a jury can be instructed that it may draw a particular inference, evidence must appear in the record which, if believed by the jury, will support the suggested inference. [Citation.]” (People v. Hannon, supra, 19 Cal.3d at p. 597.) In this regard, a reasonable inference “‘may not be based on suspicion alone, or on imagination, speculation, supposition, surmise, conjecture, or guess work. [¶] … A finding of fact must be an inference drawn from evidence rather than … a mere speculation as to probabilities without evidence.’ [Citations.]” (People v. Morris, supra, 46 Cal.3d at p. 21.) However, the facts giving rise to an inference of consciousness of guilt need not be conclusively established before pertinent instructions may be given; rather, “‘there need only be some evidence in the record that, if believed by the jury, would sufficiently support the suggested inference. [Citations.]’ [Citation.]” (People v. Alexander (2010) 49 Cal.4th 846, 921-922.)
A permissive inference or presumption allows, but does not require, “the trier of fact to infer the elemental fact from proof by the prosecutor of the basic one and … places no burden of any kind on the defendant. [Citation.]” (Ulster County Court v. Allen (1979) 442 U.S. 140, 157.) “Because this permissive presumption leaves the trier of fact free to credit or reject the inference and does not shift the burden of proof, it affects the application of the ‘beyond a reasonable doubt’ standard only if, under the facts of the case, there is no rational way the trier could make the connection permitted by the inference.” (Ibid.) In other words, “[i]nstruction on an entirely permissive inference is invalid as a matter of due process only if there is no rational way the jury could draw the permitted inference. [Citations.]” (People v. Pensinger (1991) 52 Cal.3d 1210, 1243-1244.)
The United States Supreme Court has described the test in various ways. In Francis v. Franklin (1985) 471 U.S. 307, 314-315, the court stated: “A permissive inference violates the Due Process Clause only if the suggested conclusion is not one that reason and common sense justify in light of the proven facts before the jury. [Citation.]” In Leary v. United States (1969) 395 U.S. 6, 36, the court said that a presumption in a criminal case “must be regarded as ‘irrational’ or ‘arbitrary, ’ and hence unconstitutional, unless it can at least be said with substantial assurance that the presumed fact is more likely than not to flow from the proved fact on which it is made to depend.” (Fn. omitted.)
B. Suppression of Evidence
Pursuant to CALCRIM No. 371, appellant’s jury was instructed: “If the defendant tried to hide evidence, that conduct may show that he was aware of his guilt. If you conclude that the defendant made such an attempt, it is up to you to decide its meaning and importance. However, evidence of such an attempt cannot prove guilt by itself.”
Appellant says the trial court erred by giving the instruction (which, we agree, could only have been based on the throwing away of the papers), because there was no evidence the papers contained incriminating evidence linking appellant to Dixie’s murder. “Whether or not any given set of facts may constitute suppression or attempted suppression of evidence from which a trier of fact can infer a consciousness of guilt on the part of a defendant is a question of law. Thus in order for a jury to be instructed that it can infer a consciousness of guilt from suppression of adverse evidence by a defendant, there must be some evidence in the record which, if believed by the jury, will sufficiently support the suggested inference. Furthermore, the determination of whether there is such evidence in the record is a matter which must be resolved by the trial court before such an instruction can be given to a jury.” (People v. Hannon, supra, 19 Cal.3d at pp. 597-598, italics omitted.)
The record being silent on this point, we assume the trial court made the requisite determination here. (Evid. Code, § 664.) It did not err. Although the contents of the discarded papers were undisclosed, the timing of appellant’s conduct and the fact he accomplished the disposal at someplace other than his residence made it reasonable, especially in light of the rest of his reaction, for jurors to infer that his destruction of the papers showed consciousness of guilt. (See People v. Pensinger, supra, 52 Cal.3d at p. 1244; cf. People v. Zambrano (2007) 41 Cal.4th 1082, 1142, disapproved on another ground in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.) That being the case, the instruction was sufficiently supported by the evidence, and benefited appellant by clarifying that it was up to jurors to determine whether he in fact attempted to hide evidence, that his conduct was not sufficient to establish his guilt, and that it was up to jurors to determine the weight and significance to be assigned to his behavior. (See People v. Farnam (2002) 28 Cal.4th 107, 165.)
Were we to find error, we would conclude it was harmless under any standard. (People v. Avila (2009) 46 Cal.4th 680, 709; see People v. Johnwell (2004) 121 Cal.App.4th 1267, 1278; People v. James (2000) 81 Cal.App.4th 1343, 1361-1363.) Jurors were told that some instructions may not apply, depending on their findings about the facts, and to follow the instructions that did apply to the facts as they found them. We assume jurors followed this instruction. (People v. Delgado (1993) 5 Cal.4th 312, 331.) Moreover, CALCRIM No. 371 does not lighten the prosecutor’s burden of proof, even when erroneously given. (People v. Avila, supra, 46 Cal.4th at p. 709 [addressing lack of prejudice stemming from giving of CALJIC No. 2.06 despite insufficient evidentiary basis therefor].)
C. False Statement
Asuncion testified that after his arrest, appellant told her that he had witnessed a criminal offense 22 years earlier. According to Sumpter, however, Asuncion told him, during his interview with her shortly after his first attempt to find appellant, that when she told appellant the police were looking for him, appellant said he was a witness to a murder that had occurred 22 years ago.
Pursuant to CALCRIM No. 362, the trial court instructed: “If the defendant made a false or misleading statement relating to the charged crime, knowing the statement was false or tending to mislead, that conduct may show he was aware of his guilt of the crime, and you may consider it in determining his guilt. [¶] If you conclude that the defendant made the statement, it is up to you to decide its meaning and importance. However, evidence that the defendant made such a statement cannot prove guilt by itself.”
Appellant now says there was insufficient evidence to warrant the instruction. He says Sumpter’s testimony did not specifically contradict Asuncion’s testimony that the statement was made when appellant was in jail. Since the statement was made while appellant was in jail, the argument runs, it had no relation to material facts, was not told to mislead authorities and avoid suspicion, and was not a fabricated story to explain appellant’s conduct, but rather was a statement explaining police conduct.
Deliberately false statements by a defendant about matters materially related to his or her guilt or innocence “have long been considered cogent evidence of a consciousness of guilt, for they suggest there is no honest explanation for incriminating circumstances. [Citation.] Moreover, permitting the jury to draw an inference of wrongdoing from a false statement is as much a traditional feature of the adversarial fact finding process as impeachment by prior inconsistent statements. [Citations.]” (People v. Williams (2000) 79 Cal.App.4th 1157, 1167-1168.) Indeed, “[t]he inference of consciousness of guilt from willful falsehood … is one supported by common sense, which many jurors are likely to indulge even without an instruction.” (People v. Holloway (2004) 33 Cal.4th 96, 142.) On the other hand, “if the prior statement is of such a nature that, even if false, it would not reasonably demonstrate defendant’s consciousness of guilt, the statement would not be admissible on this ground. [Citation.]” (People v. Kimble (1988) 44 Cal.3d 480, 496, fn. 11.)
In the present case, Asuncion testified to having a conversation with appellant when he came into the house after the police had been unable to find him. According to her, this was the conversation in which she told him the police were looking for him, after which he went to the bathroom and seemed like he was worried. According to Sumpter, when Asuncion told him about this conversation about a week after it happened, Asuncion said that when she and appellant were talking about why the police had been there, appellant mentioned that he was a witness to a criminal offense – murder – that was 22 years earlier, and he became pale and had diarrhea. Accordingly, although no evidence was presented concerning when appellant was arrested, jurors reasonably could have inferred that appellant’s statement about being a witness to a murder 22 years earlier was made before his arrest. This being the case, jurors reasonably could have concluded that appellant was referring to Dixie’s murder, and that he was attempting to mislead Asuncion – to whom he knew the police had spoken once and could expect the police would interview again – concerning his culpability and the nature of his involvement.
Given the foregoing, “[t]he conclusion suggested by the instruction – the defendant himself believed he was responsible for the crime – is altogether justified on proof of the predicate fact – the defendant lied about the crime.” (People v. Ashmus (1991) 54 Cal.3d 932, 977, overruled on another ground in People v. Yeoman, supra, 31 Cal.4th at p. 117.) The court properly allowed the jury to consider this circumstantial evidence of guilt, while at the same time cautioning against overreliance on it. (See People v. Holloway, supra, 33 Cal.4th at p. 142.) This is so even though the false statement was made to appellant’s landlady, and not to the police. (See, e.g., People v. Benavides, supra, 35 Cal.4th at p. 100 [statement to family]; People v. San Nicolas (2004) 34 Cal.4th 614, 667 [note to children]; People v. Arias (1996) 13 Cal.4th 92, 141 [statement to mother]; People v. Medina (1995) 11 Cal.4th 694, 761-762 [statement to sister].)
Were we to find error, we would conclude appellant suffered no prejudice therefrom. (See People v. Avila, supra, 46 Cal.4th at p. 709; People v. San Nicolas, supra, 34 Cal.4th at p. 667.)
D. Adoptive Admission
Pursuant to CALCRIM No. 357, jurors were instructed:
“If you conclude that someone made a statement out of court that accused that person [sic] of a crime or tended to connect that person [sic] with the commission of a crime and the person [sic] did not deny it, you must decide whether each of the following is true:
“One, that the statement was made to the defendant or made in his presence; two, the defendant heard or understood the statement; three, the defendant would under all the circumstances naturally have denied the statement if he thought it was not true; and the defendant could have denied it but did not.
“If you decide that all of these requirements have been met, you may conclude that the defendant admitted the statement was true.
“If you decide that any of these requirements has not been met, you must not consider either the statement or the defendant’s response or lack thereof for any purpose.”
Appellant now contends it was error to give the instruction, because there was no evidence of any accusation that would support an adoptive admission. Respondent concedes the instruction should not have been given, but says any error was harmless.
“If a person is accused of having committed a crime, under circumstances which fairly afford him an opportunity to hear, understand, and to reply, and which do not lend themselves to an inference that he was relying on the right of silence guaranteed by the Fifth Amendment to the United States Constitution, and he fails to speak, or he makes an evasive or equivocal reply, both the accusatory statement and the fact of silence or equivocation may be offered as an implied or adoptive admission of guilt. [Citations.]” (People v. Preston (1973) 9 Cal.3d 308, 313-314; see Evid. Code, § 1221.) “‘For the adoptive admission exception [to the hearsay rule] to apply, … a direct accusation in so many words is not essential.’ [Citation.] ‘When a person makes a statement in the presence of a party to an action under circumstances that would normally call for a response if the statement were untrue, the statement is admissible for the limited purpose of showing the party’s reaction to it. [Citations.] His silence, evasion, or equivocation may be considered as a tacit admission of the statements made in his presence.’ [Citation.]” (People v. Riel (2000) 22 Cal.4th 1153, 1189.)
Here, Asuncion’s statement to appellant, that the police were looking for him, was not a direct or implied accusation of anything, and so there was nothing for appellant to adopt or accept. (See People v. Snow (1987) 44 Cal.3d 216, 227.) This being the case, there was no factual basis for the giving of CALCRIM No. 357.
Nevertheless, appellant was clearly not prejudiced under any standard. The evidence of both his statements and his physical reaction was admitted without objection, as was the evidence of Asuncion’s statement to him. Having not objected in the trial court, appellant cannot now, and does not, challenge the admission of this evidence. (See People v. Waidla (2000) 22 Cal.4th 690, 717.) In any event, appellant’s own statements were admissible pursuant to Evidence Code section 1220. (People v. Davis, supra, 36 Cal.4th at p. 535.) Asuncion’s statement to appellant was relevant and admissible for the nonhearsay purpose of giving context to appellant’s reaction. (Id. at pp. 535-536; see, e.g., People v. Turner (1994) 8 Cal.4th 137, 189, overruled on another ground in People v. Griffin (2000) 33 Cal.4th 536, 555, fn. 5; People v. Scalzi (1981) 126 Cal.App.3d 901, 907.) Appellant’s physical reaction was also admissible, not as an adoptive admission, but as nonassertive conduct evidence. (People v. Snow, supra, 44 Cal.3d at pp. 227-228.) That appellant, upon hearing the police were looking for him, turned pale, looked worried, and had diarrhea – all of which the jury reasonably could have found – gave rise to a reasonable inference appellant knew why the police were looking for him and was alarmed by this turn of events, and so was in turn relevant as consciousness of guilt. (People v. Rogers (2009) 46 Cal.4th 1136, 1161-1162.) This being the case, the giving of CALCRIM No. 357 cannot possibly have harmed appellant. (See People v. Avila, supra, 46 Cal.4th at p. 709; People v. Johnwell, supra, 121 Cal.App.4th at p. 1278; People v. James, supra, 81 Cal.App.4th at pp. 1361-1363.)
VI
Sentencing Errors
Appellant claims portions of the sentence imposed must be modified or stricken as violative of ex post facto principles. (See generally In re E.J. (2010) 47 Cal.4th 1258, 1279 & cases cited.) Respondent properly concedes the issue.
Although appellant never objected on this ground in the trial court, his failure to do so does not constitute waiver, since an ex post facto violation resulting in an unauthorized sentence may be raised on appeal even if the defendant failed to object below. (People v. Hiscox (2006) 136 Cal.App.4th 253, 258; People v. Zito (1992) 8 Cal.App.4th 736, 741-742.)
A. Restitution
Appellant was ordered to pay restitution to the Victims Compensation Government Claims Board in the amount of $1,011.10, and to John Paul Ricks in the amount of $600. In addition, restitution was ordered to remain open with respect to John Paul Ricks and Frank Ricks.
At the time of appellant’s crimes, California law mandated imposition of a restitution fine on all persons convicted of a felony (former § 1202.4, subd. (a); former Gov. Code, § 13967), and payment of restitution by defendants convicted of crimes and placed on probation (former § 1203.04). Through legislative oversight, however, no statute authorized trial courts to order the payment of direct restitution to victims by defendants who were convicted of crimes but were not given probation. (People v. Birkett (1999) 21 Cal.4th 226, 236-237; People v. Broussard (1993) 5 Cal.4th 1067, 1072-1073; People v. Downing (1985) 174 Cal.App.3d 667, 670-672.) Although this gap was subsequently closed (People v.Broussard, supra, at p. 1074), restitution constitutes “punishment” for purposes of application of ex post facto principles (People v. Zito, supra, 8 Cal.App.4th at p. 741). It follows that the trial court’s order that appellant pay victim restitution must be stricken, and its reservation of jurisdiction over restitution vacated, as unauthorized.
B. Section 290.3 Fine
The trial court ordered appellant to pay $300 pursuant to section 290.3. However, section 290.3, which mandates imposition of a fine on those convicted of certain sex-related offenses, was added to the Penal Code by Statutes 1988, chapter 1134, section 1, well after appellant’s offenses. Accordingly, imposition of the fine in this case constituted an unauthorized sentence (see People v. Valenzuela (2009) 172 Cal.App.4th 1246, 1248-1249), and the fine must be stricken.
C. Parole Revocation Restitution Fine
The trial court imposed a $2,000 restitution fine pursuant to section 1202.4, and imposed and suspended a parole revocation restitution fine in the same amount pursuant to section 1202.45. Section 1202.45 was added to the Penal Code by Statutes 1995, chapter 313, section 6, and became effective on August 3, 1995. Restitution fines constitute “punishment.” (People v. Hanson (2000) 23 Cal.4th 355, 361-362.) Accordingly, the constitutional ban on ex post facto laws prohibits imposing such a fine where, as here, the crime was committed before the effective date of the statute. (People v. Flores (2009) 176 Cal.App.4th 1171, 1181-1182; see also People v. Callejas (2000) 85 Cal.App.4th 667, 669, 678.) Moreover, the fine is not applicable where there is no possibility of parole. (People v. Oganesyan (1999) 70 Cal.App.4th 1178, 1183; accord, People v. Samaniego (2009) 172 Cal.App.4th 1148, 1183-1184; People v. DeFrance (2008) 167 Cal.App.4th 486, 505; People v. Jenkins (2006) 140 Cal.App.4th 805, 819.) It must be stricken.
D. Award of Time Credits
Appellant was awarded 1, 101 days of actual custody credits, but no conduct credits. At the time of his offense, section 4019 provided that a term of six days would be deemed to have been served for every four days spent in custody for a prisoner confined in jail following arrest and prior to imposition of sentence for a felony conviction, unless the inmate refused to satisfactorily perform labor or comply with rules and regulations. (Former § 4019, subds. (a)(4), (b)-(d), (f).) Under former section 4019, appellant was entitled to an additional 550 days of local conduct credits, as respondent concedes. (See People v. Bravo (1990) 219 Cal.App.3d 729, 733.) The denial of section 4019 credits to persons convicted of murder contained in current section 2933.2, subdivision (c), was not in effect at the time of appellant’s offense, nor was the 15-percent limitation on such credits contained in current section 2933.1, subdivision (c). Accordingly, they cannot constitutionally be applied to appellant. (People v. Reyes (2008) 165 Cal.App.4th 426, 437; People v. Ly (2001) 89 Cal.App.4th 44, 46-47; see Weaver v. Graham (1981) 450 U.S. 24, 31, 35-36.) The judgment must be modified accordingly.
DISPOSITION
The judgment is modified as follows:
The conviction and sentence on counts 2 and 3 is vacated;
The fine imposed pursuant to Penal Code section 1465.8 is reduced to $30;
The award of victim restitution in the total amount of $1,611.10 is stricken and the reservation of jurisdiction over victim restitution is vacated;
The fine imposed pursuant to Penal Code section 290.3 is stricken;
The fine imposed pursuant to Penal Code section 1202.45 is stricken;
Appellant is awarded presentence custody credit totaling 1, 651 days (1, 101 days actual custody plus 550 days conduct credits).
As so modified, the judgment is affirmed. The trial court is directed to cause to be prepared an amended abstract of judgment reflecting said modifications, and to transmit certified copies of same to the appropriate authorities.
WE CONCUR: WISEMAN, J., DETJEN, J.
Some witnesses had different last names or occupations at the time of events than they did at the time of trial. To the extent possible, we refer to things as they existed at the time of events.
Frank smoked Camel nonfilter cigarettes at the time of Dixie’s death. His habit was to smoke them in such a way that the brand name was burned.
In the present case, there is some question whether the act of taking property from Dixie was conceded. Because jurors were required to determine, assuming appellant took property from Dixie, the timing of the formation of his intent and whether he intended to commit robbery independent of the killing, we find no error in permitting jurors to consider the uncharged offense on the issue of intent to commit robbery, even assuming it was not conceded that Dixie was robbed. Were we to find error in this regard, moreover, we would conclude it was harmless in view of the evidence of guilt and the fact the trial court properly admitted evidence of the uncharged offense for other purposes. (See People v. Foster (2010) 50 Cal.4th 1301, 1335; People v. Davis, supra, 46 Cal.4th at p. 603; People v. Gray, supra, 37 Cal.4th at p. 204.)