Filed 8/27/18 P. v. Hughes CA1/5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE

Anthony Hughes appeals from his conviction for second degree murder (Pen. Code, §§ 187, 189). A 2011 “cold hit” indicated a DNA profile obtained from forensic evidence found at the 1998 murder scene matched Hughes’s profile. Hughes argues the 13‑year delay in charging him violated his state and federal constitutional rights. Hughes also contends the trial court abused its discretion in excluding third party culpability evidence and by declining to strike prejudicial DNA evidence. We affirm.

1. Factual and Procedural Background

In September 2011, the San Francisco District Attorney charged Hughes, via felony complaint, with two crimes committed against Lisa Valdez in May 1998: murder (Pen. Code, § 187, subd. (a)) and attempted rape (id., §§ 664, 261). With respect to the first count, the complaint alleged as a special circumstance that the murder was committed during an attempted rape (id., § 190.2, subd. (a)(17)(C)), and further alleged Hughes personally used a sharp instrument as a deadly weapon within the meaning of Penal Code section 12022, subdivision (b)(1). After Hughes’s preliminary hearing concluded in August 2013, he was held to answer the charges. An information was filed, alleging the same crimes.

Hughes filed a motion to dismiss the charges based on preaccusation delay, which was denied by the trial court. The case proceeded to trial before a jury.

A. Prosecution Case

Lisa lived alone in a studio in a locked San Francisco condominium complex. On Saturday, May 16, 1998, Lisa hosted a dinner party at her condo. Lisa’s mother, Helen Valdez, was the last of Lisa’s guests to leave. Helen left around midnight.

On Sunday, May 17, 1998, Lisa did not attend her regular midday dance class. That night Lisa’s neighbor returned home from a weekend away and discovered the metal frame on his front door was partially bent, the deadbolt had been pushed in, and a streak of blood was on the door. The neighbor reported a possible attempted burglary to the building manager.

On Wednesday, May 20, 1998, Lisa’s dead and partially nude body was found, in an advanced state of decomposition, on the floor of her unlocked condo. The television was on, the thermostat was set at 80 degrees Fahrenheit, and Lisa’s “Murphy bed” was opened but “moved [and] kind of off its stand.” The police found “a lot of blood . . . on [Lisa’s] bed and mattress and sheets.” The apartment was cluttered, as it usually was, but police found no signs it had been ransacked. Neither Lisa’s keys nor her black gym bag were located.

1. Initial Police Investigation

An autopsy showed Lisa had 21 stab wounds to her face, jaw, chin, neck, and chest, as well as defensive injuries on her hands. Three of the stab wounds penetrated major blood vessels, which caused a rapid loss of blood. Death would have occurred within seconds to minutes. However, due to advanced decomposition, the medical examiner could not determine a time of death or whether a sexual assault occurred.

Crime scene investigators collected “a large” number of items from Lisa’s apartment, including a bloody bedsheet, several bloody pillows, bloody and torn underwear, an audio cassette tape from Lisa’s answering machine, and two Band-Aids found in the toilet bowl. Lisa’s toilet seat was raised and a partial latent fingerprint was lifted from its underside. Swabs were also collected from blood streaks found on Lisa’s door and her neighbor’s door.

In 1998, an inspector from the San Francisco Police Department (SFPD), Ronan Shouldice, repeatedly compared the latent fingerprint to known fingerprints from arrestees contained in the automated fingerprint identification system database, but he did not find a match.

In 1998 and 1999, three SFPD forensic analysts, Alan Keel, Pam Hofsass, and Ralph Whitten, examined the physical evidence with homicide inspectors Curtis Cashen and Armand Gordon. Working together, they identified the most potentially probative evidence for DNA testing. Keel explained they could not test every item of evidence due to insufficient resources. Keel focused on “pillow No. 22” because it appeared to have a “widespread transfer bloodstain,” as well as a few “spatter” bloodstains appearing as isolated drops. He was particularly interested in the isolated drops because they indicated a possible single source, which could contain DNA from Lisa’s assailant. The droplet pattern, and the fact that all blood on the pillow was “very bright red,” indicated to Keel the blood was deposited around the same time and was fresh.[1]

Keel performed polymerase chain reaction (PCR) analysis on DNA extracted from pillow No. 22, and all extracted DNA was either compatible with Lisa’s known DNA profile or contained the same male DNA profile foreign to the victim. Whitten and Hofsass similarly examined pillow No. 20 for blood stains that might have DNA of more than one person and, in 1999, performed PCR testing with DNA extracted from selected stains. Hofsass testified the cuttings from pillow No. 20 contained male DNA consistent in profile to the male DNA obtained from pillow No. 22. Keel also testified that, using DQ-Alpha and Polymarker testing kits, he observed “indications of the same foreign blood” on pillow No. 20 that were “associated with one of [Lisa’s] fingernail scrapings and from the door stain.”

In the meantime, Cashen spoke with about 30 potential witnesses and suspects. Among the witnesses interviewed were Lisa’s mother and the three other people at the May 16, 1998 dinner party where Lisa was last seen alive. Cashen also listened to Lisa’s answering machine messages and compared caller identification records. He made a list of about 40 people who had recently called Lisa. Hughes’s name was on the list.[2] A friend of Lisa’s listened to the answering machine tapes and identified a coworker of Lisa’s, Albert Robinson, as the voice that left the following message on May 16, 1998: “You know how it goes, Taquita. Hello, Lisa. Are you home?”

Cashen and Gordon interviewed Robinson, who was considered a suspect based in part on his unrequited romantic interest in Lisa. Cashen and Gordon also interviewed Albert Cato. During the interview with Cato on May 22, 1998, Cashen noticed a cut on Cato’s hand. Fingerprint and DNA samples were requested and received from approximately 10 male suspects, including Robinson and Cato, for comparison with the fingerprint recovered from the toilet seat and DNA evidence isolated from the bloody pillows.

Both Cato and Robinson were eliminated as suspects when their known DNA profiles were compared to the DNA profile Keel created from pillow No. 22, and both were excluded as donors. Their fingerprints also did not match the latent print recovered from the toilet seat. In 1998 and 1999, Hughes was not a potential suspect and was not interviewed or asked for any samples.

In 1999, Hofsass provided DNA extracts from the male foreign source found on pillow No. 22 to the California Department of Justice (DOJ) DNA laboratory for restriction fragment length polymorphism (RFLP) analysis. Using RFLP, a DOJ criminalist created a single profile from the pillow extracts, and then searched the profile through the Combined DNA Index System (CODIS) against reference samples from convicted criminal offenders. After the DNA and fingerprint comparisons and database searches failed to yield a suspect, the case went “cold.” The matter was unsolved but inactive.

2. Renewed Investigation in 2011

After STR (Short Tandem Repeats) testing became available, the SFPD crime lab reanalyzed the unknown male DNA profile from pillow No. 22 and, in 2003, submitted the unknown male STR profile to the DOJ to be searched in the CODIS STR database.

In 2011, the DOJ notified SFPD of a cold hit between the unknown male DNA profile uploaded to CODIS and Hughes’s DNA profile. Based on this lead, Hughes was arrested for murder, and he provided a DNA reference swab for match confirmation.

The SFPD crime lab’s DNA supervisor, David Jackson, testified as an expert in forensic DNA analysis. In 2011 Jackson developed a DNA profile from Hughes’s collected reference sample, and then compared that known sample to the DNA profiles previously generated from pillow Nos. 20 and 22. Jackson also performed testing on DNA extracted from pillow No. 22, using STR testing utilizing the Profiler Plus and COfiler Typing kits, which target different markers at different locations. Jackson concluded Hughes was included as a possible source of the DNA detected in the evidence sample cuttings from both pillows. Jackson calculated the random match probability as, most conservatively, one in several quadrillion.

In 2014, Jackson also performed STR testing, again using Profiler Plus and COfiler Typing kits, on samples from the neighbor’s door swab, Lisa’s fingernail clippings, and Lisa’s underwear. He detected mixtures of DNA in each sample, with a male contributor present. With respect to the underwear, fingernail clippings, and door swab, the major component was consistent with Lisa’s known DNA profile. However, Jackson concluded the results were inconclusive with respect to the minor male component.

In 2011, Shouldice received a fingerprint card from Hughes and compared it to the latent print lifted from Lisa’s toilet seat. Shouldice determined the latent print matched Hughes’s right middle finger with at least 14 points of comparison. Shouldice’s conclusion was peer reviewed by another police inspector, who reached the same conclusion.[3] Although impossible to know when the fingerprint was deposited on the toilet seat, Shouldice indicated latent fingerprints are “very delicate entities.”

After his arrest, Hughes waived his Miranda[4] rights and spoke with then Inspector Hofsass. The recorded interview was played for the jury. Hughes identified Lisa from a photograph, said he had a teenage romance with her, and stated he had not talked to her since the 1980’s. Hughes also denied ever having been in Lisa’s apartment. When told evidence linked him to Lisa’s death, Hughes denied killing Lisa. Immediately thereafter, Hughes asked for something to write with and “started stabbing himself in the neck and in the stomach [with a pen], saying ‘I want to [die].’ ” Hughes’s name was also found in Lisa’s address book.

B. Defense Case

The defense presented evidence of Hughes’s character for nonviolence and attempted to show he was physically incapable of committing Lisa’s murder. Hughes’s medical records showed he had been diagnosed in 1993 with an autoimmune disorder, myasthenia gravis (MG), that causes weakness of voluntary muscles, including hand and arm muscles. MG is an incurable condition that can go into remission when treated with medication. In addition to taking medication, Hughes had his thymus gland removed in 1993. In 1998, Hughes suffered postsurgical chest pain.

Hughes’s symptoms from MG would have fluctuated. In 1998, Hughes had an “unremarkable” neurological evaluation. The 1998 exam detected no progressive weakness and Hughes’s symptoms were well controlled with medication. However, Hughes was noted to be unable to use his hands, arms, or legs for repetitive movements.

Hughes also suffered multiple shoulder injuries, including a left rotator cuff injury that required surgery in 1995, and a right rotator cuff injury in “early 1998.” The latter injury led to surgery in January 1999. The left shoulder injury was attributed to weightlifting. The right shoulder injury was attributed to a fall. However, Hughes’s medical records also indicate, in June 1998, he was “lifting heavy limestone.”

Hughes’s former wife testified they married in 1988 and separated in late 1999. She recalled Hughes was diagnosed with MG in approximately 1993. The resulting weakening of Hughes’s muscles caused him to leave his job, which required a great deal of lifting. She did not recall any instances in 1998 when Hughes came home extremely late, physically exhausted, or with injuries.

Lisa’s housekeeper testified she cleaned Lisa’s kitchen and bathroom every Monday, and she never folded Lisa’s sheets or put clean sheets on Lisa’s bed. She said she never spoke to police after Lisa’s death.

The defense also called Robinson and Cato, who had been suspects during the initial investigation. Robinson and Lisa were friends and former coworkers. Robinson admitted a strong attachment to Lisa. He had lunch with her on the Thursday before she died. Lisa told Robinson she had weekend plans with a man she had just met, named “Alfred[,] Alan[,] or Albert.” At the time of Lisa’s Saturday dinner party, Robinson was with two other friends. He also recalled taking flying lessons that weekend.[5] Robinson moved to Indiana in November or December 1998, because it was hard to find a job in the Bay Area.

Cato met Lisa through his work at a recruiting firm. Cato and Lisa had plans to go on a first date on the Friday before her death, and the following day he had planned to join the dinner party with her family. However, Cato and Lisa had never connected because she did not return his calls. On May 16, 1998, Cato instead met with his brother in Richmond.

The defense recalled Jackson to clarify his testimony about his 2014 DNA analysis. Jackson clarified statements in his report that the DNA profiles from Lisa and Hughes “can account for all of the DNA types detected and the mixtures referenced” did not refer to those samples where the analysis was inconclusive, but only to those samples (from pillow Nos. 20 and 22) where he was able to make conclusive interpretations. A defense expert on crime scene investigation and bloodstain sequencing/pattern analysis, opined it would be speculative to try to specify the order in which certain bloodstains were deposited on the pillows.

Lisa’s downstairs neighbor remembered hearing a very loud noise at 1:26 a.m. on Sunday May 17, 1998, which prompted him to look in the hallway. He saw nothing, closed his door, and went back inside. He then heard doors slamming and a person, who sounded “athletic and large,” running down the stairs.[6]

C. People’s Rebuttal Case

Lisa’s housekeeper testified she arrived at Lisa’s condo on Monday, May 18, 1998, and unlocked the door with her key. She saw Lisa lying on the floor, but was unable to open the door because Lisa’s feet were against it. She did not remember seeing a bag near Lisa’s body.

SFPD Lieutenant Daniel Dedet testified that, when he interviewed Lisa’s housekeeper in May 1998, she said she arrived at 10:00 a.m., walked into the condo, saw a bloated and naked body near the foot of the bed, and heard a male voice. She also said she had observed a black zippered bag next to the body and had left clean white sheets on the couch approximately two weeks earlier.

D. Verdict

The jury found Hughes guilty of first degree murder. The jury also found the deadly weapon allegation true. The jury did not return a verdict on the attempted rape count or a finding on the attempted rape special circumstance allegation. The court declared a mistrial on the attempted rape count and subsequently, in connection with Hughes’s motion for new trial, reduced the degree of the homicide to second degree murder. The trial court sentenced Hughes to 16 years to life. This timely appeal followed.

II. Discussion

Hughes contends the 13-year delay in charging him violated his state and federal constitutional rights. Hughes also contends the trial court abused its discretion in excluding certain third party culpability evidence and by declining to strike prejudicial DNA evidence. Hughes fails to show prejudicial error.

A. Preaccusation Delay

Hughes was not charged with Lisa’s 1998 murder until 2011. He insists the 13-year delay between Lisa’s death and the filing of the complaint caused “substantial prejudice to the defense” that outweighed any justification for the delay and denied him due process and a fair trial under the state and federal Constitutions. In particular, he contends the delay prejudiced him because witnesses’ memories had faded and certain items of evidence were lost, namely Lisa’s computer, which may have proved helpful to his third-party culpability defense.

“ ‘A defendant’s state and federal constitutional speedy trial rights [citations] do not attach before the defendant is arrested or a charging document has been filed.’ ” (People v. Jones (2013) 57 Cal.4th 899, 921.) However, the due process clauses of the Fifth and Fourteenth Amendments to the United States Constitution and article I, section 15 of the California Constitution “ ‘protect[] a criminal defendant’s interest in fair adjudication by preventing unjustified delays that weaken the defense through the dimming of memories, the death or disappearance of witnesses, and the loss or destruction of material physical evidence.’ [Citation.] Accordingly, ‘[d]elay in prosecution that occurs before the accused is arrested or the complaint is filed may constitute a denial of the right to a fair trial and to due process of law under the state and federal Constitutions. A defendant seeking to dismiss a charge on this ground must demonstrate prejudice arising from the delay. The prosecution may offer justification for the delay, and the court considering a motion to dismiss balances the harm to the defendant against the justification for the delay.’ ” (People v. Nelson (2008) 43 Cal.4th 1242, 1250 (Nelson).)

“The burden of proof for establishing such a claim rests with the defendant.” (People v. Price (1985) 165 Cal.App.3d 536, 542.) Under both the state and federal Constitutions, a defendant must make a threshold showing before the trial court is called upon to balance the prejudice to the defendant against the justification for the delay. Under the federal Constitution, a claim based on preaccusation delay requires showing the delay was undertaken to gain a tactical advantage over the defendant. (People v. Catlin (2001) 26 Cal.4th 81, 107; United States v. Lovasco (1977) 431 U.S. 783, 795.) Under the state Constitution, “ ‘ “the defendant has the initial burden of showing some prejudice before the prosecution is required to offer any reason for the delay [citations]. The showing of prejudice requires some evidence and cannot be presumed.” ’ ” (People v. Alexander (2010) 49 Cal.4th 846, 874, italics omitted; accord, People v. Abel (2012) 53 Cal.4th 891, 909.)

“ ‘The balancing task is a delicate one, “a minimal showing of prejudice may require dismissal if the proffered justification for delay is insubstantial. [Conversely], the more reasonable the delay, the more prejudice the defense would have to show to require dismissal.” ’ ” (People v. Booth (2016) 3 Cal.App.5th 1284, 1303; see id. at pp. 1305–1312 [disappearance of eyewitness who exonerated defendant constituted substantial prejudice outweighing justification for delay].)

“ ‘We review for abuse of discretion a trial court’s ruling on a motion to dismiss for prejudicial prearrest delay [citation], and defer to any underlying factual findings if substantial evidence supports them [citation].’ ” (People v. Jones, supra, 57 Cal.4th at p. 922.) Whether the defendant was prejudiced by a delay and whether the delay was justified are questions of fact. (People v. Mirenda (2009) 174 Cal.App.4th 1313, 1330; People v. Dunn-Gonzalez (1996) 47 Cal.App.4th 899, 911–912.) Thus, on appeal, we examine whether the trial court’s prejudice and justification findings are supported by substantial evidence. (Dunn-Gonzalez, at pp. 911–912.) “[W]e consider all evidence that was before the court at the time the trial court ruled on the motion. [Citation.] Thus, evidence presented at trial may be used to support or reject defendant’s posttrial [motion to dismiss].” (Jones, at p. 922.)

1. Factual Background

Prior to trial, Hughes moved to dismiss the information, asserting his ability to prove an alibi was impaired because he could not remember his activities during the weekend Lisa was killed, nor could his ex-wife. Hughes also argued other crucial evidence had been lost or destroyed, pointing to his own faded memory, as well as that of Lisa’s housekeeper, Helen, Cashen, and Gordon. The police had also failed to preserve Lisa’s computer. Hughes contended the charging delay was unjustified because investigators negligently failed to contact him in 1998, despite Hughes’s name having been in Lisa’s address book and caller identification records the day after her death. He also argued the police negligently failed to obtain his DNA in 2002, when he was convicted of an unrelated burglary.

The trial court denied Hughes’s pretrial motion without prejudice to the issue being raised again after trial. After the close of evidence, Hughes renewed his motion, continuing to maintain the delay was unjustified. He again argued the delay hindered his defense because he was unable to locate witnesses and favorable evidence. In particular, Hughes pointed to Helen’s faded memory about being told “Albert” planned to visit Lisa at 2:30 a.m. on May 17, 1998, the housekeeper’s lapsed memory regarding details of a male voice she had earlier reported hearing in Lisa’s apartment, Cashen’s and Cato’s lapsed memory regarding details of the cut on Cato’s hand, and the destruction or loss of Lisa’s computer and answering machine audiotape.

The trial court denied Hughes’s motion, concluding his claim of prejudice was unsubstantiated. The court specifically concluded there was no legal basis in 2002 to obtain a DNA sample from Hughes. The court further concluded the delay was not caused by negligent investigation, but instead “the development of new evidence” had provided the prosecution with evidence “sufficient . . . to meet their burden of proof beyond a reasonable doubt.” The court denied the motion on alternative bases. Hughes had not met his burden to show prejudice. Furthermore, any minimal prejudice was substantially outweighed by the legitimate justification for delay.

2. Analysis

Hughes’s federal due process claim must be rejected because he does not argue the prosecution purposefully delayed charging him to gain a tactical advantage. Hughes’s state due process challenge also fails because he has failed to meet his burden to demonstrate actual prejudice—it is not enough to speculate about potentially relevant evidence. Showing witness memories have faded, while a factor to be considered, is insufficient without more to establish actual prejudice. (Nelson, supra, 43 Cal.4th at pp. 1251–1252.) “ ‘Prejudice to a defendant from precharging delay is not presumed.” (People v. Jones, supra, 57 Cal.4th at p. 921.) Rather, statutes of limitations provide the primary protection against stale criminal charges. (United States v. Lovasco, supra, 431 U.S. at p. 789; Jones, at p. 921.) “Presuming prejudice would be inconsistent with the Legislature’s declining to impose a statute of limitations for murder, among the most serious of crimes.” (Nelson, at p. 1250.)

The trial court concluded Hughes failed to establish the requisite prejudice to require the prosecution to justify the delay, and substantial evidence supports the trial court’s conclusion. We agree with the trial court that Hughes’s postarrest interview does not support the claim his own faded memory deprived him of an alibi or other defense. On appeal, Hughes appears to concede as much and instead points to five different areas in which he purportedly suffered “actual and substantial prejudice” from the delay.

First, he asserts the delay caused Helen’s memory to fade regarding statements Lisa purportedly made to her about a visitor named “Albert” who would be coming to her apartment at 2:30 a.m. on May 17, 1998. Although Hughes points to differences between a January 1999 statement Helen made to Cashen and her testimony at the section 402 hearing at the time of trial, Hughes also acknowledges Helen’s January 1999 statement to Cashen was memorialized in his notes. Prejudice from a witness’s fading memory is diminished where contemporaneous police reports exist. (People v. Cowan (2010) 50 Cal.4th 401, 433.) In any event, it is more accurate to say Helen’s accounts on this point fluctuated greatly even in the time period close to Lisa’s death. As discussed in more detail infra, the 13-year delay was not the cause of the problem Hughes faced in admitting Helen’s testimony. At an earlier trial, her testimony would nevertheless have been inadmissible. (Evid. Code, §§ 1200, 1201; People v. Arias (1996) 13 Cal.4th 92, 149 [“[m]ultiple hearsay is admissible for its truth only if each hearsay layer separately meets the requirements of a hearsay exception”].)[7] Hughes has failed to show actual prejudice from Helen’s shifting memories.

Second, Hughes complains about the destruction of the tape from Lisa’s answering machine. Again, he also acknowledges the tape’s contents were memorialized in a transcript. Thus, at trial it was stipulated Robinson left a message on Lisa’s answering machine on May 16, 1998. The jury was also told the contents of his message. It is speculative to suggest that, had the tape been preserved, Robinson and Cato would have been more thoroughly cross-examined and provided evidence exculpatory to Hughes.

Third, Hughes complains of Cashen’s and Gordon’s lapsed memories regarding the cut on Cato’s hand. At trial, Cashen testified clearly that Cato, when interviewed on May 22, 1998, had a cut on his hand. Cashen’s and Gordon’s May 1998 interview with Cato was also recorded. And, when Cato was called as a defense witness at trial, Hughes used the interview transcript to refresh Cato’s recollections about his cut. Given the DNA evidence, which excluded Cato as a contributor to the blood found on Lisa’s pillow, the details Cashen had forgotten—whether Cashen photographed the cut and where precisely the cut appeared—are not material.

Fourth, Hughes asserts the preaccusation delay resulted in loss of Lisa’s computer. Hughes called former SFPD Officer Leslie Tom as a witness. Tom confirmed the computer was listed on the evidence inventory log and he had evaluated its hard drive in 1998. Tom discovered it had been shut down incorrectly at 1:30 a.m. on May 17, 1998. When Tom tried to access information from the hard drive, he prepared a chronological record, which he could no longer locate. Tom also could no longer remember what else he discovered from the computer. Although tools for looking at a hard drive are “better now” than they were in 1998, police records appeared to indicate the computer was returned to Helen. Hughes’s argument that the lost computer may have contained exculpatory evidence, or that charging Hughes more promptly would have “yielded information about Lisa’s communications with potential third party perpetrators or at least fingerprints,” is based on speculation.

Finally, Hughes claims he suffered prejudice because Lisa’s housekeeper no longer remembered details about a black bag she saw or male voice she heard. When Hughes called Lisa’s housekeeper to testify, defense counsel asked her whether she changed Lisa’s sheets before her death. After receiving a negative response to that question, which was helpful to his case, defense counsel asked no further questions. Similar to other witnesses, the housekeeper’s May 1998 interview with police was recorded. At trial, the People were unable to refresh her recollection with the transcript. Nonetheless, the prosecution called one of the officers who interviewed her to establish what she reported when events were fresh in her mind. Thus, the record simply does not support Hughes’s claim that the housekeeper’s lapsed memory was prejudicial. It is wholly speculative to assume that, if the trial had occurred closer to the time of Lisa’s death, the housekeeper would have exculpated Hughes by identifying the voice she heard as belonging to a third party. Substantial evidence supports the trial court’s finding Hughes failed to establish actual prejudice sufficient to necessitate balancing.

Furthermore, the trial court did not abuse its discretion in concluding the People’s justification for the delay outweighed any minimal prejudice Hughes may have suffered. Hughes contends the delay was unjustified because investigators negligently failed to contact him in 1998, despite his name appearing in Lisa’s address book and his phone number appearing on her “caller id.”[8] First, Hughes mischaracterizes the evidence. In 1998, the only link known to law enforcement was that Hughes phoned Lisa on two occasions around the time of her death. At that time, Lisa’s address book remained in her family’s possession, and Hughes’s name was not discovered in it until after his arrest. Neither the address book nor the telephone calls would have provided police with any reasonable basis to suspect Hughes killed Lisa.

Here, the record amply supports the trial court’s finding the prosecution did not focus on Hughes earlier because of the absence of evidence and difficulty in allocating scarce resources, not due to intentional or negligent conduct. The delay was “investigative delay, nothing else.” (Nelson, supra, 43 Cal.4th at p. 1256.) Difficulty in allocating scarce prosecutorial resources is a strong justification for precharging delay. (Id. at pp. 1256–1257.) “A court should not second-guess the prosecution’s decision regarding whether sufficient evidence exists to warrant bringing charges. . . . [¶] . . . [Furthermore,] [a] court may not find negligence by second-guessing how the state allocates its resources or how law enforcement agencies could have investigated a given case. . . . It is not enough for a defendant to argue that if the prosecutorial agencies had made his or her case a higher priority or had done things a bit differently they would have solved the case sooner.” (Ibid.) By 2011, when Hughes was charged, of course, his DNA had been matched to the DNA profile created from blood evidence at the scene. This new evidence amply justifies the delay and outweighs any minimal prejudice Hughes has presented. (See ibid. [new evidence in the form of a DNA cold hit was strong justification outweighing any prejudice resulting from 2002 charges for 1976 murder]; People v. Catlin, supra, 26 Cal.4th at pp. 98, 109 [justification for 1985 charges for 1976 murder outweighed prejudice when evidence available before 1984 made it “extremely difficult or impossible to make out a case against defendant,” but by 1985 “additional evidence of his guilt had emerged”].)

Hughes’s showing of prejudice was weak while the People’s justification for the delay was compelling. Substantial evidence supports the trial court’s findings that Hughes did not suffer substantial prejudice and the delay was neither negligent nor undertaken to gain any tactical advantage. The trial court did not abuse its discretion in denying Hughes’s motion to dismiss.

B. Third Party Culpability Evidence

Hughes argues the trial court improperly excluded a January 6, 1999 out of court statement by Helen to Cashen, which supports his “third party culpability” defense. Specifically, Hughes challenges the trial court’s decision to exclude multiple hearsay statements recorded in Cashen’s notes from a conversation with Helen in January 1999. Cashen’s notes state: “Spoke to mother that day about supper. . . . Lisa said Albert called. Said he was coming over that day. But not [¶] Said he was bringing her a surprise. He was at 2:30 a.m. [Helen] said why so late—Because he had something else to do.” According to Hughes, the trial court’s exclusion of this evidence was contrary to the Evidence Code and deprived him of his Fifth Amendment right to due process and his Sixth Amendment right to present evidence in defense.

“[T]o be admissible, evidence of the culpability of a third party offered by a defendant to demonstrate that a reasonable doubt exists concerning his or her guilt . . . must link the third person either directly or circumstantially to the actual perpetration of the crime. In assessing an offer of proof relating to such evidence, the court must decide whether the evidence could raise a reasonable doubt as to defendant’s guilt and whether it is substantially more prejudicial than probative under . . . section 352.” (People v. Bradford (1997) 15 Cal.4th 1229, 1325.) “[E]vidence of mere motive or opportunity to commit the crime in another person, without more, will not suffice to raise a reasonable doubt about a defendant’s guilt: there must be direct or circumstantial evidence linking the third person to the actual perpetration of the crime.” (People v. Hall (1986) 41 Cal.3d 826, 833 (Hall).) Hall also emphasized: “[T]he ordinary rules of evidence do not impermissibly infringe on the accused’s right to present a defense. Courts retain, moreover, a traditional and intrinsic power to exercise discretion to control the admission of evidence in the interests of orderly procedure and the avoidance of prejudice.” (Id. at p. 834.) “[C]ourts should simply treat third-party culpability evidence like any other evidence: if relevant it is admissible (§ 350) unless its probative value is substantially outweighed by the risk of undue delay, prejudice, or confusion (§ 352).” (Hall, at p. 834.) We review a trial court’s evidentiary rulings, including those made with respect to third party culpability evidence, for abuse of discretion. (People v. Elliott (2012) 53 Cal.4th 535, 581; People v. Prince (2007) 40 Cal.4th 1179, 1242.)

1. Background

Before trial, in October 2013, the defense took a videotaped conditional examination of Helen, who was 87 years old at the time. Helen recalled attending Lisa’s dinner party on the Saturday before Lisa’s death, and leaving around midnight. When asked if Lisa told her Robinson was coming over later that night, Helen responded, “No, Lisa didn’t tell me anything like that. [¶] . . . [¶] I don’t remember Lisa telling me anything like that.” Helen testified she did not know who was coming over. Helen’s memory was not refreshed after she was shown Cashen’s January 1999 notes. On cross-examination, Helen told the prosecutor she did not personally know Lisa’s plans and told Cashen she heard this information from Lisa’s friends.[9] Helen said, “I got information all over.”

Before trial, Hughes moved in limine to admit Cashen’s January 1999 notes as “evidence that [Robinson] was at [Lisa’s] apartment around the time she was killed.” Hughes argued the evidence Robinson was at Lisa’s condo around the time of the murder, as well as evidence of motive (Robinson’s unrequited love), were sufficient to raise a reasonable doubt as to Hughes’s guilt. The People filed their own motion in limine to exclude this evidence, arguing in particular that the statement recorded in Cashen’s notes was inadmissible hearsay and insufficiently incriminating to constitute relevant third party culpability evidence. Treating the People’s motion as an opposition, Hughes filed a reply, in which he argued the out of court statements were admissible under sections 1235, 1237, 1240, and 1250.[10] In a supplemental opposition, the People also argued the evidence should be excluded under section 352.

After hearing argument, the trial court ruled the evidence was inadmissible, concluding Hughes could not overcome the People’s hearsay objections. The trial court explained: “So if we had the person to whom [Albert] made that statement in court . . . , Lisa, saying Albert told me he was coming to my apartment at 2:30 on Sunday morning, I think the People might agree that that would be admissible . . . . So, the problem is, of course, that Lisa is not here . . . .” The court also noted “reliability issue[s]” with the second level of hearsay reflected in Cashen’s January 1999 notes because “everything that we know about Helen is inconsistent.” The court said, “[I]t is far more likely that what [Helen] is doing on January 6th, 1999, more than seven months after [Lisa’s] death, is trying to pull together any information she might offer the investigators in their efforts to find the killer . . . .” On the other hand, if Robinson were to testify he had a date with Lisa at 2:30 a.m. on May 17, 1998, the court indicated this would likely be admissible evidence that could raise a reasonable doubt as to Hughes’s guilt.

At trial, the People took the position Helen, who was then 89 years old, was not competent to testify, due to significant memory issues, and moved to admit her conditional examination testimony. A section 402 hearing was held, outside the presence of the jury, to determine Helen’s competence as a witness. At that hearing, Helen recalled attending a dinner party at Lisa’s apartment the night before she died, but did not remember the name of the other attendees. Defense counsel asked her, “Did [Lisa] tell you anything about what she was going to be doing after the four of you left?” Helen responded, “She was expecting a friend.” However, Helen did not remember if Lisa told her the name of the friend she was expecting or what they were going to do. Nor did Helen remember the name “Albert Robinson.” On redirect, the prosecutor asked, “Do you remember who told you, if it was Lisa or another person told you she may be expecting a friend?” Helen answered, “It must have been Lisa.” The prosecutor asked her, “Why do you say it must have been?” Helen replied, “How would anyone else know she was expecting someone?” Further probing by the prosecutor indicated Helen could not distinguish between her personal observations and what she was told by others.

Helen was found competent to testify. Hughes renewed his motion to admit out of court statements regarding Lisa’s late night date—both as stated in Cashen’s January 1999 notes and as Helen stated during the section 402 hearing—under section 1251 as evidence of the prior mental state of an unavailable declarant. The trial court excluded both as inadmissible hearsay. The court explained: “[T]he question is, should [Helen] be allowed to answer the question, whether Lisa told her at or after the dinner party of her plans for later that night. In order for that to be admissible, . . . [i]t would be Lisa’s statement to Helen, for then-anticipated plans under 1250 or 1251, but the requirement for admissibility under [section 1252] is circumstances indicating . . . the presence of trustworthiness. . . . [¶] . . . I reread last night all of the statements that [Helen] made on May 20th, May 21st . . . and I found consistency throughout those statements and consistency in the conditional examination . . . . And every one of those statements, [Helen] testified, when you read them in context, that she did not have the information directly from Lisa, but it came . . . from [one of Lisa’s friends.]” The trial court found Helen’s section 402 testimony regarding what Lisa told her did not meet the requirements of section 1252.[11]

Following the jury’s verdict, Hughes moved for a new trial, arguing among other things that the trial court abused its discretion when it precluded the defense from asking Helen about her January 1999 statement to Cashen. The trial court denied the motion for new trial, finding the record failed to support the defense position that it was Lisa directly, rather than someone else, who told Helen about the expected late night visit and thus the statement contained multiple levels of inadmissible hearsay.

2. Analysis

Hughes argues the trial court abused its discretion in excluding Helen’s January 1999 out of court statement to Cashen. In particular, he contends substantial evidence does not support the trial court’s finding the statement was untrustworthy (§ 1252). He also contends the evidence met the requirements for admission of third party culpability evidence under Hall. Finally, Hughes insists his “federal constitutional rights compelled the admission of the third party culpability evidence, even if the evidence might have been otherwise inadmissible under state law.” We need not address Hughes’s Hall argument because Hughes’s other arguments are unpersuasive.

We agree with the People that the trial court did not err in excluding the evidence. Helen’s out of court statement to Cashen contained multiple levels of hearsay. Under the hearsay rule, “evidence of a statement that was made other than by a witness while testifying at the hearing and that is offered to prove the truth of the matter stated” is generally inadmissible. (§ 1200, subds. (a), (b).) “[M]ultiple hearsay is admissible for its truth only if each hearsay layer separately meets the requirements of a hearsay exception. ( . . . §§ 1200, 1201.)” (People v. Arias, supra, 13 Cal.4th at p. 149, italics added.)

Here, while there may be no reason to be suspicious of the out of court statement made by Lisa, she is not the only hearsay declarant we must consider. Substantial evidence supports the trial court’s finding of an additional level of hearsay, from an unidentified declarant, lurking in the January 1999 notes. Other than Helen’s statement at the section 402 hearing that “[i]t must have been Lisa” who told her about expecting “a friend,” all other evidence pointed to Helen having learned of Lisa’s plans through her friends, rather than from Lisa directly. The trial court did not abuse its discretion in excluding the January 1999 statement as inadmissible hearsay.

Finally, we cannot agree with Hughes’s suggestion the ruling violated his right to due process or deprived him of the opportunity to present evidence in his defense. The trial court did not preclude Hughes from presenting a third party culpability defense altogether; it merely excluded inadmissible out of court statements. “As a general matter, the ordinary rules of evidence do not impermissibly infringe on the accused’s right to present a defense.” (Hall, supra, 41 Cal.3d at p. 834.) The excluded out of court statements were in no way akin to an excluded third party confession. (See Chambers v. Mississippi (1973) 410 U.S. 284, 302.)

C. DNA Evidence

Hughes also maintains the trial court committed reversible error by declining to strike misleading and unduly prejudicial testimony from Keel, which “improperly suggested [Hughes’s] DNA matched DNA found on [Lisa’s] fingernails and [the] neighbor’s door.” Hughes also contends the trial court abused its discretion in denying his motion for new trial, which raised the same argument. According to Hughes, admission of such evidence violated his federal due process rights under the Fifth and Fourteenth Amendments to the United States Constitution. Hughes’s argument appears to be premised on the assumption the jury was incapable of distinguishing Keel’s testimony from Jackson’s. The record is clear Keel did not compare Hughes’s known DNA profile to the profiles created from crime scene evidence. Jackson was the only SFPD forensic scientist to compare DNA found at the crime scene to Hughes’s known profile. We find no error.

1. The Science of DNA

“ ‘Forensic DNA analysis is a comparison of a person’s genetic structure with crime scene samples to determine whether [that] person’s structure matches that of the crime scene sample such that the person could have donated the sample.’ ([Nelson, supra, 43 Cal.4th at pp. 1257–1258].)

“DNA is found in the nucleus of virtually all cells in the human body. The DNA is organized into 23 pairs of homologous chromosomes; one chromosome in each pair being inherited from the mother and the other from the father. [Citations.] ‘A chromosome is a long DNA molecule in the shape of a spiral staircase. [Citation.] “It consists of two parallel spiral sides (i.e., a double helix) composed of repeated sequences of phosphate and sugar. The two sides are connected by a series of rungs, which constitute the steps in the staircase. Each rung consists of a pair of chemical components called bases. There are four types of bases—adenine (A), cytosine (C), guanine (G), and thymine (T). A will pair only with T, and C will pair only with G.” [Citation.] There are over 3 billion base pairs in the 46 chromosomes of a single human cell. When a cell reproduces, the parallel sides, or strands, of its DNA separate, and the bases of each strand pair off with the complementary bases of a new strand. [Citation.]’ [Citation.]

“ ‘A person’s individual genetic traits are determined by the sequence of base pairs in his or her DNA molecules. That sequence is the same in each molecule regardless of its source (e.g., hair, skin, blood, or semen) and is unique to the individual. Except for identical twins, no two human beings have identical sequences of all base pairs. [¶] In most portions of DNA, the sequence of base pairs is the same for everyone. Those portions are responsible for shared traits such as arms and legs. In certain regions, however, the sequence of base pairs varies from person to person, resulting in individual traits. A region—or locus—that is variable is said to be polymorphic.’ [Citation.]

“ ‘Because there is no practical way to sequence all three billion base pairs in a person’s DNA, forensic scientists seek to identify individuals through variations in their base-pair sequences at polymorphic DNA locations [on a region of a chromosome] (loci). Each variation in a [base-pair] sequence[, i.e., a different form of gene at a particular locus,] is called an “allele.” . . . In the absence of a nonmatch that conclusively eliminates the suspect as the source of the crime scene sample, each match between alleles from the suspect and from the crime scene may be accorded statistical significance.’ ” (People v. Cua (2011) 191 Cal.App.4th 582, 592–593, fn. omitted.)

“ ‘ “PCR forensic analysis involves three steps. First, DNA is extracted from cells in the sample. Second, select regions of the DNA are amplified. Scientists have identified these regions, also referred to as genes or genetic markers, as areas that exhibit great genetic variation among the population. . . . After amplification, in the third and final step of PCR analysis, the amplified gene is ‘typed,’ through the use of DNA probes, to identify the specific alleles it contains. [Citation.] If the DNA profile thus constructed differs in any way between the suspect and the sample, the suspect is excluded.” ’ [Citation.] [¶] If a match is found, the next question is the statistical significance of the match.” (People v. Cua, supra, 191 Cal.App.4th at p. 594.)

“ ‘ “There are three subtypes of PCR testing: DQ-Alpha, which tests a single genetic marker; Polymarker, which tests five genetic markers; and the STR, which tests three or more genetic markers.” ’ ” (People v. Cua, supra, 191 Cal.App.4th at p. 593.) “The DQ-Alpha/Polymarker test kit is a combination of two DNA tests. The DQ-Alpha test kit identifies one genetic marker in the immune system. The polymarker test kit looks at five other genetic markers. Because the kits use the same test methodology (polymerase chain reaction and reverse blot dot), they were combined into one forensic test kit to simultaneously type six genetic markers.” (People v. Hill (2001) 89 Cal.App.4th 48, 53, fn. 3.) “The Profiler Plus test kit uses 10 loci . . . .” (Id. at p. 57.)

RFLP techniques analyze DNA without copying it, while PCR testing involves amplifying or copying the DNA. PCR testing has some advantages over RFLP, as it can be “employed when the DNA sample available is too small and/or degraded to perform . . . RFLP.” (People v. Morganti (1996) 43 Cal.App.4th 643, 662.) However, both “ ‘ “RFLP and PCR methodologies, including the PCR subtypes, have acquired general acceptance in the scientific community.” ’ ” (People v. Cua, supra, 191 Cal.App.4th at p. 593; accord, People v. Lazarus (2015) 238 Cal.App.4th 734, 779.)

2. Background

Keel testified that, between 1996 and 1999, he served as DNA technical lead analyst at the SFPD’s crime lab. Keel’s direct testimony focused on the PCR testing he did in 1998 and 1999, in which he compared reference samples from Cato, Robinson, and other initial suspects, with the DNA profile created from pillow No. 22. On cross-examination, however, defense counsel questioned Keel about his focus on the DNA extracted from pillow No. 22 and attempted to suggest Keel had insufficient expertise to determine the drops on pillow No. 22 would yield the most probative evidence.

On redirect, the prosecutor asked Keel, “[I]n your work as the technical lead and . . . the leader of this team who is doing the DNA work back in ’99 and ‘98, were there any other items that had the same male single source?” Keel answered: “Yes and no. [¶] . . . [¶] There were, certainly, none that we took, to the extent that we took the bloodstains on pillow 22. But when the investigation began . . . [Whitten] did exactly what I did with pillow 22, in regards to his examination of pillow No. 20. He looked for an interesting bloodstain and he sampled one and it came back as foreign to [Lisa], but it was commingled with [Lisa’s] blood. . . . [¶] . . . [¶] So, to get a better picture of the foreign blood, we decided that [Whitten] should go back and take more samples from pillow No. 20, and he did that. [¶] And, also there were indications of the same foreign blood that [Whitten] found . . . associated with one of [Lisa’s] fingernail scrapings and from the door stain, I believe. So, we determined that [Whitten] should go back to the pillow, take some more samples, and try to get a more isolated sample of the foreign blood, and he did that and that was not successful.” (Italics added.) Hughes objected, but only on hearsay, “asked and answered,” and “narrative” grounds.

On recross-examination, defense counsel asked Keel, “With regards to the fingernails that you testified when you were talking about the fingernails, there was no Y chromosome in the table of results in relationship to the . . . fingernails?” Keel responded, “Correct. The determination that there was foreign blood compatible with the same foreign blood source was made from the DQ-Alpha polymarker testing.” On redirect, Keel was asked, without objection, “When you made your determination that the blood of the single male source that was found in this . . . scene was commingled with the victim’s blood, what did you base that determination on?” Keel replied, “That was based on the results from pillow No. 20, from her fingernail scrapings, and from . . . a bloodstain on a door where that was the first round of testing. And upon finding that information, we, then expanded the search and started trying to focus on more isolated bloodstains.” (Italics added.)

On the next day of trial, after Keel’s testimony and the testimony of three other prosecution witnesses had concluded, but before Jackson testified, Hughes moved to strike the above testimony and to preclude Jackson’s proposed testimony as unduly prejudicial and misleading under section 352. Defense counsel suggested the results of PCR DQ-Alpha and Polymarker testing done by Keel would confuse the jury because a “match on one to two markers” was insufficiently discriminating. Defense counsel explained: “So, if [Hughes] is not included, the relevance and the probative value of that is minimal, but the prejudicial effect of the jury believing that he somehow is a contributor to either the fingernails, the door or the underwear, is completely misleading and it is confusing to the jury and it has no probative value, other than to make them infer that he is a possible donor when he is not. When at the same level, Jackson himself, the judge, me, and any of the other Y chromosomes in the 12 to 18 jurors can’t be excluded as well. So, it is overwhelmingly misleading and prejudicial.” The remainder of the colloquy focused on Jackson’s anticipated testimony. The court deferred ruling.

When the issue was renewed by the trial court, defense counsel focused solely on Jackson’s proposed testimony and did not press for a ruling on the motion to strike Keel’s testimony (italicized above). In denying Hughes’s motion to limit or preclude Jackson’s testimony, the court explained: “[T]he defense is requesting . . . that where [Jackson] was able to reach conclusions with regard to his comparison of certain D.N.A., for example, on the pillows, to [Hughes], that should be admitted. [¶] . . . [¶] But where he has tested other items, such as the fingernails and the door swabs or the underwear, that it should all be excluded. And it seems to me, what that would do would be to distort [Jackson’s] work for the jury. [¶] . . . [¶] . . . [I]f you exclude it, it would lead to the conclusion that [Jackson] wasn’t thorough and complete. [¶] If you include it, as [the People are] proposing, it demonstrates that there are some conclusions as to some items but not as to others. . . . [¶] . . . [Jackson] could be cross-examined as thoroughly as counsel wants, but the . . . motion to limit his testimony is denied.”

Jackson proceeded to testify about his 2011 STR testing, which involved comparing Hughes’s known DNA profile to the profile created from pillow cuttings. Jackson also testified that, in 2014, he performed STR analysis on samples from the neighbor’s door, Lisa’s fingernail clippings, and Lisa’s underwear. He detected mixtures of DNA in each sample, with a male contributor present, and a major component consistent with Lisa’s known DNA profile. However, Jackson concluded that testing with respect to the minor component was inconclusive for all of these samples. Jackson was unable to draw a conclusion because the minor DNA profile detected was “a partial D.N.A. profile, which means that not all of the genetic information that should be there was there.” Jackson explained that he would simply have no “confidence” in any interpretation of such insufficient evidence. Jackson made clear that his DNA analysis was independent from the work done by Keel, Hofsass, and Whitten. Jackson did not review their work. The earlier tests were different and looked at different areas within the DNA molecule. Jackson was the only SFPD forensic examiner to compare evidentiary samples to Hughes’s known DNA profile.

Following the jury’s verdict, Hughes moved for a new trial, arguing among other things that the trial court abused its discretion when it did not strike Keel’s testimony. The trial court denied the motion.

3. Analysis

Hughes insists the trial court abused its discretion by declining to strike Keel’s challenged testimony because its “misleading impact far outweighed its minimal probative value.” He submits: “Keel’s testimony must have misled the jury to conclude [Hughes’s] DNA matched not only the DNA on [Lisa’s] bloodstained pillows, but also the DNA extracted from her fingernail clipping and the door swab. This improper inference suggested that [Hughes] left DNA during the stabbing attack against Lisa and in an attempt to break down her neighbor’s door, thereby directly implicating him in the homicide.” (Italics added.)

The trial court’s evidentiary rulings are reviewed for abuse of discretion. (People v. Geier (2007) 41 Cal.4th 555, 586.) “ ‘Evidence is substantially more prejudicial than probative (see . . . § 352) if, broadly stated, it poses an intolerable “risk to the fairness of the proceedings or the reliability of the outcome.” ’ ” (People v. Jablonski (2006) 37 Cal.4th 774, 805.) “Only relevant evidence is admissible ( . . . § 350), and the court has discretion to exclude relevant 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.’ ( . . . § 352.)” (Robinson v. Grossman (1997) 57 Cal.App.4th 634, 647.)

Even if we assume Hughes’s trial counsel preserved his section 352 and due process arguments, we would find no abuse of discretion in the trial court’s refusal to strike the testimony. Hughes argues the evidence had minimal probative value because “Keel could not testify that [Hughes’s] DNA matched the DNA extracted from the bloodstained pillow, from [Lisa’s] fingernail scrapings, or from the neighbor’s damaged and stained door, because Keel never tested [Hughes’s] DNA.” We agree with the People that the evidence was relevant for a different reason—to give a complete picture of the early DNA testing and to demonstrate why the crime lab focused on the foreign DNA profile obtained from the bloody pillows, which was used to eliminate Cato and Robinson as suspects. Keel’s testimony regarding the results of testing Lisa’s fingernail scrapings and the door swab explained why, when they found a mixture but DQ-Alpha and Polymarker testing indicated the foreign profile was consistent with the profile found on the pillows, the DNA analysts then went back to pillow No. 20 and looked for isolated drops that could lead to “a more isolated sample of the foreign blood.” The adequacy of the police investigation was a “disputed fact that [was] of consequence to the determination of the action.” (§ 210.)

Nor was there much risk of prejudice from Keel’s challenged testimony. The People contend that, given Hofsass’s and Jackson’s testimony, “any arguable ambiguity in Keel’s testimony” would not have been understood by the jury as testimony “there was a DNA profile match between crime scene samples from the pillows, the fingernail clippings, and the door swab.”[12] Hofsass testified, on cross-examination, why a few alleles in common does not make “a match.” She testified, “You just can’t look at a [single] marker . . . . What we’re looking at is the totality of the profile across the board.” The jury would have been well aware that, in 1998 and 1999, Keel was not comparing Hughes’s DNA profile to any DNA extracted from evidence at the crime scene. Keel was merely testing evidentiary samples in order to create a DNA profile of the unknown suspect. Keel’s testimony was preliminary and merely set the stage for the testimony regarding the exclusions of Robinson and Cato. Years later, when Hughes’s known DNA profile was compared to the profile obtained from crime scene evidence, Jackson used different tests, namely STR analysis with Profiler Plus and COfiler testing kits, that looked at different markers. Jackson did not testify that Hughes’s DNA profile “matched” the male DNA found on the neighbor’s door, Lisa’s underwear, or Lisa’s fingernail clippings. The trial court reasonably concluded the jury was competent to weigh Keel’s and Jackson’s testimony.

Finally, even if we were to assume the danger of possible confusion was sufficient to compel striking Keel’s disputed testimony, we would find any error harmless. The evidence of Hughes’s guilt was overwhelming. The unchallenged DNA evidence matched Hughes to the blood on Lisa’s pillows. Jackson testified the random match probability was, most conservatively, one in several quadrillion. Hughes’s link to the crime was confirmed by the latent print found on the underside of the toilet seat.

Hughes relies on his argument that his DNA could have been deposited on Lisa’s pillows at a time other than Lisa’s death to suggest this could have been a close case absent Keel’s testimony. He is correct that DNA analysis cannot be used to detect exactly when DNA was left on an item. However, Hughes’s claim is both speculative and highly implausible. Hughes denied ever having been to Lisa’s apartment. He also denied having any contact with Lisa for over a decade before her death, a claim that was controverted by the caller identification records. Keel’s testimony regarding the color and patterns of blood found on the pillows allowed a reasonable inference that Hughes’s DNA was left at the time of the murder. The presence of Hughes’s fingerprint on the raised toilet seat, and Band-Aids in the toilet bowl, further support that inference. Hughes’s behavior at the conclusion of the police interview indicates consciousness of guilt. The only reasonable inference from the entirety of the evidence was that Hughes injured himself while stabbing Lisa and that is how his blood came to be on her pillow.

Even if we assume the challenged portions of Keel’s testimony should not have been admitted, the error would be harmless applying any standard of review. (Chapman v. California (1967) 386 U.S. 18, 24; People v. Watson (1956) 46 Cal.2d 818, 836.)

III. Disposition

The judgment is affirmed.

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BRUINIERS, J.

WE CONCUR:

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JONES, P. J.

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SIMONS, J.

A149792