Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 04F11066
NICHOLSON, J.
Defendant Alfred Martinez appeals from a judgment for multiple convictions of sex offenses against two victims, Jennifer and Nancy. He claims (1) the warrantless seizure of his blood for DNA purposes pursuant to Penal Code sections 295 et seq., violated his Fourth Amendment rights; (2) evidence of the methodology used to assess the statistical significance of a DNA match after a “cold hit” on the state’s DNA database was not admissible under the Kelly test; (3) insufficient evidence supports the verdict as to one of the victims; and (4) the trial court erred in sentencing defendant under section 667.6 to full consecutive sentences on all counts. We disagree with each of defendant’s contentions, and, except to order the abstract be corrected, we affirm the judgment.
We use only the victims’ first names to protect their privacy interests.
Subsequent undesignated references to sections are to the Penal Code.
People v. Kelly (1976) 17 Cal.3d 24.
FACTS
Jennifer
In 1995, Jennifer, then 22-years old, lived in an apartment on H Street in downtown Sacramento with her roommate, Carol. On the evening of July 20, 1995, Jennifer came home from work early because she did not feel well. Carol was out on a date. Jennifer changed into her pajamas, watched some television, and soon went to bed.
Around 10:00 p.m., Jennifer awoke when she heard her bedroom door open and close. She called out to Carol. The door opened again, and a man came into her room. The stranger had his shirt pulled up over his head, and he held a knife up in a threatening manner. Frightened, Jennifer curled up into a ball on her bed, repeating, “No, no, no, no, please don’t.”
The man, later determined by the jury to be defendant, told Jennifer to be quiet. He spoke with a Spanish accent. He took off his pants and boxer shorts, walked over to the bed, and took off Jennifer’s pajama pants and underwear. Jennifer kept saying, “Please don’t, please don’t.” She asked him to use a condom. Defendant said he would.
He flipped Jennifer over onto her stomach and orally copulated her. He flipped her onto her back and continued orally copulating her. He flipped her over onto her stomach again and attempted vaginal intercourse, but he could not penetrate her due to lack of an erection. He flipped her again onto her back, and this time, he penetrated her. He was not wearing a condom. She asked him to pull out before he ejaculated. He did and ejaculated on her pajama top.
Jennifer was in shock, crying and “yammering” on. Defendant attempted to console her. He said she would be okay and would “come back like a tiger.” He said he had just become a man, and that when a boy becomes a man, he has certain needs. He told her not to let the incident affect her life.
Defendant said he was sorry and asked Jennifer what he could do to make it up to her. She told him to “pray to God for forgiveness.” Defendant lowered himself to his knees, made the sign of the cross, and started praying. She said, “No, not here,” and told him to leave.
After she thought defendant had left, Jennifer got up and went into Carol’s room. She noticed the window was open and the screen was gone. She saw defendant standing in the window looking at her. He again told her he was sorry. “Just go,” she said, and he left.
Jennifer discovered that defendant had also rifled through her purse and taken Carol’s bike. She walked over to her neighbor’s apartment and told her neighbor, Perry, and Perry’s mother what had happened. Perry’s mother called the police.
At trial some 10 years later, Jennifer did not believe she could identify her perpetrator. However, she described him as Hispanic, about 20 years old, 5’7” to 5’8” tall, of slender build, and weighing approximately 155 to 160 pounds. She did not remember defendant having facial hair, although she had told an investigating officer at the time defendant had “peach fuzz.”
Perry testified she and her mother were putting together a table at about 10:30 p.m., July 20, 1995, when she saw an unknown Hispanic man exit Jennifer’s apartment. The man looked at Perry, stopped for a second, and then walked away. Perry described the man as about 5’7” to 5’8” tall, between 150 and 160 pounds, of medium build, and with medium complexion. He looked to be about 25 to 30 years old, and had a mustache.
Moments later, Jennifer appeared at Perry’s front door, crying. She told Perry and her mother what had happened. While Perry’s mother called the police, Perry knocked on the door of the on-site manager, Mike. She then saw the Hispanic man walking back up towards the apartment. Mike opened his door. Perry told him what had happened and pointed to the man. Mike ran after the man, but he did not catch him.
Elaine Green, a nurse practitioner at the University of California, Davis, Medical Center, examined Jennifer that evening. She found a small, bleeding vaginal tear. This was consistent with rape. She also found non-motile sperm from the vaginal area. Green collected evidence from the victim.
Nancy
On July 30, 1995, Nancy, aged 43, lived alone in Sacramento’s Tahoe Park area. That evening, she retired to bed at about 10:00. A loud noise awoke her around midnight. She thought it was her front door. She got out of bed, and noticed a figure in her bedroom doorway. He was about 5’9” tall, husky, dark hair, mid 20’s to early 30’s, and he wore one glove. He spoke with a Spanish accent, and he smelled as if he had been drinking. The jury later determined the man to have been defendant.
Upon seeing defendant, Nancy said, “No,” and threw a pillow at him. Defendant grabbed Nancy and they ended up on the floor. Defendant inserted his fingers into Nancy’s vagina and anus. Nancy struggled, and asked about her cats which she could not see. Defendant said they were fine. Nancy was on her stomach. Defendant placed his mouth on Nancy’s vagina and anus. He then inserted his penis inside her vagina and anus.
At one point, Defendant lost his erection. He tried rubbing himself on Nancy’s legs. He opened up her dresser drawer, retrieved a knee-high stocking, and put it on her leg. He told her to get on the bed. She tried to squirm away, but he lifted her up onto the bed. The bed collapsed. He sodomized her. At some point, she pulled down her bedroom curtains.
Nancy ended up face down on the floor, and defendant continued trying to assault her. She tried to grab a nearby can of furniture polish to spray in defendant’s face, but he pushed it away. She tried to dial 911 using a rotary style phone on the floor. Defendant finished attacking her, and he wrapped her in a sheet.
Defendant started talking. He said he wanted a White woman or he liked White women. He thought Mexican women were more domineering. He apologized and asked what he could give her. He offered a VCR, roses, and hubcaps. He could leave them on her front porch. He thought Nancy was old enough to be his mother, and that she was pretty. He told her not to feel bad and to think of the attack as a date where she got picked up by someone at a bar.
Nancy asked defendant if she could take a shower. Defendant asked if he could take a shower with her. She did not pursue it further, as she was trying to get him to leave. The assaults lasted over two hours.
Elaine Green, the same nurse practitioner who examined Jennifer, examined Nancy in the early morning hours of July 31, 1995. She found feces stains on Nancy’s legs, back, neck, and abdomen. Nancy’s anal area was swollen and bruised. She had redness at her vaginal opening and a purple-red discoloration around her urethra. She had red marks all over her body. These findings were consistent with rape. Green collected evidence from the victim.
Subsequent events
On December 14, 1995, several months after the assaults on Jennifer and Nancy, defendant was in custody at the Rio Cosumnes Correctional Center for an unrelated, nonsexual case. On that day, defendant approached Lieutenant Paul Tassone, a watch supervisor, to “make a confession.” Defendant feared for his safety from other inmates due to something he had done in the past. He wanted to bring the matter to the center’s attention to avoid getting hurt.
Defendant said he had broken through the front window of a home on H Street in Sacramento the past July. He walked in and saw a female in a bedroom. He initially backed out of the room and closed the door, but then he heard the female calling, “Who is it?” He went back into the bedroom and forced himself upon her, specifying intercourse. He thought the victim was in her late 20’s. He thought he may have apologized to her before he left. He had been drinking that night and did not have full recollection about what happened. Defendant told Lieutenant Tassone he was coming forward now to make it right for his family and for the victim. He did not want her to have to suffer by not knowing who did this to her.
Almost a decade passed. In March 2004, a DNA sample was collected from defendant and entered into a DNA data bank. This sample was collected based on a nonsexual prior conviction. The parties stipulated the results led law enforcement to investigate defendant in Nancy’s rape and assault.
Specifically, in December 2004, criminalist Mark Eastman received the kit containing defendant’s sample, and compared it with the samples in the sexual assault kit taken from Nancy in 1995. After performing DNA extraction on the vaginal swab taken from Nancy and assembling the profile, Eastman concluded the DNA on the swab matched the DNA from defendant’s sample. The random chance that another unrelated person would have DNA that matched the same profile was one in 50 quintillion in the Caucasian population, one in 29 quintillion in the African-American population, and one in one quintillion of the Hispanic population.
Detective Peter Willover of the Sacramento Police Department learned of the match between defendant’s DNA and that found on Nancy. Assigned to investigate cold cases, Willover discovered Jennifer’s unsolved case with its similar modus operandi and timing. He also discovered the police department had mistakenly destroyed all of the evidence collected from Jennifer’s case.
From his research, Willover learned Jennifer’s case was the only reported rape that occurred on H Street in July 1995. He also found no other cases similar to Nancy’s and Jennifer’s from 1990 through 2004.
Willover interviewed defendant, but he did so before Lieutenant Tassone’s statement containing defendant’s confession was disinterred from old files. As a result, defendant was not challenged with that statement when he denied raping Jennifer. However, he admitted to Willover during the interview that he had sexual intercourse with Nancy in her home without her consent.
PROCEDURAL HISTORY
As to Jennifer, the jury convicted defendant of two counts of forcible oral copulation (§ 288a, subd. (c)(2)) and two counts of forcible rape (§ 261, subd. (a)(2)). The jury also determined he committed these sexual offenses during the burglary of Jennifer’s home where his intent was to steal (§ 667.61, subd. (e)(2)), he committed the offenses against two or more victims (§ 667.61, subd. (e)(5)), and he used a deadly weapon in committing the offenses (§ 667.61, subd. (e)(4)).
As to Nancy, the jury convicted defendant of two counts of forcible sexual penetration by a foreign object (§ 289, subd. (a)(1)), two counts of forcible oral copulation (§ 288a, subd. (c)(2)), one count of forcible rape (§ 261, subd. (a)(2)), and two counts of sodomy (§ 286, subd. (c)(2)). The jury determined he committed the six sexual offenses during a burglary of Nancy’s home where his intent was to commit a forcible sex crime (§ 667.61, subd. (d)(4)), and he committed two of the sexual offenses against two or more victims (§ 667.61, subd. (e)(5)).
The trial court sentenced defendant to state prison for two consecutive terms of 25 years to life, with additional consecutive terms totaling 54 years for the remaining offenses.
The abstract of judgment incorrectly shows the life terms as concurrent. It also incorrectly shows the full consecutive sentences for the remaining counts to be “one-third consecutive.” We will order the abstract to be corrected in our disposition.
DISCUSSION
I
Warrantless Seizure of Blood Samples for DNA Database
Defendant contends the collection of his blood as required by a prior judgment for purposes of entering a DNA sample in the state’s DNA database violated the Fourth Amendment. We disagree.
Compulsory, nonconsensual extraction of biological samples constitutes a search and seizure subject to Fourth Amendment protection. (See Skinner v. Railway Labor Exec. Assn. (1989) 489 U.S. 602, 616 [103 L.Ed.2d 639, 659].) However, “[a]s the text of the Fourth Amendment indicates, the ultimate measure of the constitutionality of a governmental search is ‘reasonableness.’” (Vernonia School Dist. 47J v. Acton (1995) 515 U.S. 646, 652 [132 L.Ed.2d 564, 574].) “[W]hether a particular search meets the reasonableness standard ‘“is judged by balancing its intrusion on the individual’s Fourth Amendment interests against its promotion of legitimate governmental interests.”’” (Id. at pp. 652-653.)
It has been repeatedly and consistently held that the extraction of biological samples from a convicted felon is not an unreasonable search and seizure within the meaning of the Fourth Amendment. (See, e.g., People v. Travis (2006) 139 Cal.App.4th 1271, 1289-1290; People v. Johnson (2006) 139 Cal.App.4th 1135, 1168; Alfaro v. Terhune (2002) 98 Cal.App.4th 492, 505-506 (Alfaro).) As this court explained in Alfaro: “We agree with existing authorities that (1) nonconsensual extraction of biological samples for identification purposes does implicate constitutional interests; (2) those convicted of serious crimes have a diminished expectation of privacy and the intrusions authorized by the [DNA] Act are minimal; and (3) the [DNA] Act serves compelling governmental interests. Not the least of the governmental interests served by the [DNA] Act is ‘the overwhelming public interest in prosecuting crimes accurately.’ [Citation.] A minimally intrusive methodology that can serve to avoid erroneous convictions and to bring to light and rectify erroneous convictions that have occurred manifestly serves a compelling public interest. We agree with the decisional authorities that have gone before and conclude that the balance must be struck in favor of the validity of the [DNA] Act.” (98 Cal.App.4th at pp. 505-506, original italics.)
Defendant suggests two United States Supreme Court decisions, City of Indianapolis v. Edmond (2000) 531 U.S. 32 [148 L.Ed.2d 333] (Edmond) and Ferguson v. City of Charleston (2001) 532 U.S. 67 [149 L.Ed.2d 205] (Ferguson), cast doubt on the foregoing state authorities. He claims these cases eliminated the traditional Fourth Amendment balancing test, independent of the “special need” doctrine: “Only where a ‘special need’ has been found is a balancing undertaken.” He also argues that since there was no “special need” here, extracting his blood constituted an unlawful search and seizure.
We disagree with defendant. First, his assertion that the traditional balancing test is used only after a special need has been found is incorrect. Special need analysis and balancing are separate methods for reviewing warrantless searches. Since the Supreme Court decided Edmond and Ferguson, it has applied special need analysis and balancing as two independent grounds on which a warrantless, suspicion-less search may be upheld. (See, e.g., Illinois v. Lidster (2004) 540 U.S. 419, 426-427 [157 L.Ed.2d 843, 852]; United States v. Knights (2001) 534 U.S. 112, 118-121 [151 L.Ed.2d 497, 505-507].) The United States Court of Appeals, Ninth Circuit, has confirmed that special need analysis and the general reasonableness inquiry are separate categories for determining whether a warrantless search was reasonable. (United States v. Kincade (9th Cir. 2004) 379 F.3d 813, 822-824, 832-833.)
Second, we reject defendant’s allegation of constitutional error on its merits. Defendant had no reasonable expectation of privacy. Without such an expectation, there is no “search” for Fourth Amendment purposes. (Kyllo v. United States (2001) 533 U.S. 27, 32-33 [150 L.Ed.2d 94, 101].)
We need not address this issue at length because it has been resolved by a Court of Appeal decision with which we agree. In People v. Adams (2004) 115 Cal.App.4th 243, 255-259, the Court of Appeal, Sixth Appellate District, considered Ferguson and Edmond in determining whether collection of a blood sample pursuant to section 296 violates the Fourth Amendment. The court concluded the analysis in Ferguson and Edmond was inapplicable to taking DNA samples from convicted criminals because those cases involved searches and seizures of the general public. “[C]onvicted criminals do not enjoy the same expectation of privacy that nonconvicts do.” (Adams, supra, at p. 258.)
II
Methodology for Assessing Significance of DNA
Defendant contends the methodology used to assess the statistical significance of a DNA match, i.e., use of the so-called product rule to generate random match probabilities, as applied to a match made by searching a DNA database (a “cold hit”), is a novel scientific question requiring proof of general scientific acceptance under People v. Kelly, supra, 17 Cal.3d 24 and People v. Leahy (1994) 8 Cal.4th 587.
Very recently, the California Supreme Court rejected defendant’s argument, ruling the use of the product rule in a cold hit case is not the application of a new scientific technique subject to a further Kelly test. (People v. Nelson (2008) 43 Cal.4th 1242, 1264.) The high court also determined evidence obtained by use of the product rule in a cold hit case is relevant and admissible. (Id. at pp. 1266-1267.) The high court’s decision ends the debate on these issues.
III
Substantial Evidence to Support Verdicts as to Jennifer
Defendant claims substantial evidence does not support his conviction of the offenses committed against Jennifer. He argues the crimes and the crime victims, and the assailant described by the victims, were all too dissimilar to support his convictions. We disagree.
The applicable test is “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” (Jackson v. Virginia (1979) 443 U.S. 307, 318 [61 L.Ed.2d 560, 573], original italics.)
Defendant acknowledges the congruity in the dates of the offenses, his confession to Lieutenant Tassone while incarcerated that he raped a woman in her 20’s and apologized to her, and that Jennifer’s assault was the only reported rape on H Street in July 1995. This evidence is more than sufficient to uphold defendant’s convictions for the various crimes committed against Jennifer.
IV
Consecutive Sentences under Section 667.6
Defendant contends the trial court erred in imposing consecutive sentences under section 667.6 on all of the subordinate counts. The Attorney General claims defendant forfeited this argument by failing to object to the sentence below. Alternatively, the Attorney General argues the court sentenced defendant correctly. We conclude the consecutive sentences were authorized.
A. Additional background information
The trial court sentenced defendant to full, consecutive sentences on all counts for which convictions were obtained as follows:
Counts one through five, and seven through eight were committed against Nancy:
Count
Offense
Sentence
one
§ 289, subd. (a)(1)
25 years to life
two
§ 289, subd. (a)(1)
Middle term of 6 years
three
§ 288a, subd. (c)(2)
Middle term of 6 years
four
§ 288a, subd. (c)(2)
Middle term of 6 years
five
§ 261, subd. (a)(2)
Middle term of 6 years
seven
§ 286, subd. (c)(2)
Middle term of 6 years
eight
§ 286, subd. (c)(2)
Middle term of 6 years
Counts nine through eleven were committed against Jennifer:
Count
Offense
Sentence
nine
§ 288a, subd. (c)(2)
25 years to life
ten
§ 288a, subd. (c)(2)
Middle term of 6 years
eleven
§ 261, subd. (a)(2)
Middle term of 6 years
twelve
§ 261, subd. (a)(2)
Middle term of 6 years
The trial court ordered the nine full subordinate terms to be served consecutively pursuant to section 667.6, subdivisions (c) and (d). The court stated: “As to the remaining counts the Court is imposing consecutive sentences under Penal Code Section 667.6(c) and (d) for violent sex crimes having been committed against two victims on two separate occasions.”
B. Analysis
Pursuant to section 667.6, subdivision (c), a trial court may impose consecutive sentences “if the crimes involve the same victim on the same occasion.” (Italics added.) However, the trial court must impose consecutive sentences pursuant to section 667.6, subdivision (d), if the sex crimes “involve separate victims or involve the same victim on separate occasions.” (Italics added.)
Defendant contends the court misapplied section 667.6 to some or all of the subordinate counts. “[T]he trial court was wrong,” he claims, “if it felt subdivision (d) applied to all of these counts, and it was wrong if it believed ‘separate victims’ was a circumstance justifying separate sentences on all counts under subdivision (c).” We conclude the consecutive sentences were authorized under section 667.6.
We turn first to subdivision (d) and the mandatory requirement of consecutive sentences for crimes involving “separate victims.” “In this scheme, the Legislature has prescribed that full and separate consecutive sentences must be imposed for each violation of the designated violent sexual offenses where the crimes ‘involve separate victims or involve the same victim on separate occasions.’ [Citations.] . . .
“The plain meaning of the term ‘separate victims’ is different, i.e., the crimes involved different victims. The statute makes no other requirement for its imposition. Thus, it does not matter whether the defendant commits his sexual acts upon more than one victim on the same day at the same time, or upon two victims a day apart. So long as there are two victims, subdivision (d) of section 667.6 applies.” (People v. Huber (1986) 181 Cal.App.3d 601, 631, italics added.)
Here, among the subordinate counts, the jury convicted defendant of committing against both victims violations of section 288a, subdivision (c)(2) (counts three and ten) and section 261, subdivision (a)(2) (counts five and eleven). The trial court was mandated under subdivision (d) of section 667.6 to impose full, consecutive terms on these counts, and the court complied with this mandate.
As to the other five subordinate counts, defendant claims the trial court could not have imposed consecutive terms on them under subdivision (d) because they do not involve separate victims, or under subdivision (c) because “separate victims” is not a discretionary ground on which the court can impose consecutive terms. Defendant misapplies the court’s ruling.
The trial court’s remaining consecutive sentences were justified under section 667.6, subdivision (c). The trial court said it was relying on that subdivision as well as on subdivision (d). Subdivision (c) authorizes the trial court to impose full-term consecutive sentences for enumerated sex crimes “if the crimes involve the same victim on the same occasion.” That is what occurred here. Defendant has forfeited any argument that the trial court failed to state sufficient reasons for sentencing under subdivision (c) because defendant made no such objection in the trial court. (People v. Scott (1994) 9 Cal.4th 331, 353.)
DISPOSITION
The judgment is affirmed. The clerk of the trial court is ordered to prepare and file an amended abstract of judgment noting all sentence terms are consecutive and full, and to file the amended abstract with the Department of Corrections and Rehabilitation.
We concur: SIMS, Acting P. J., HULL, J.