P. v. Wells

Filed 1/29/09 P. v. Wells CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

Defendant Stanley Vernard Wells was convicted after jury trial of forcible sodomy (Pen. Code, 286, subd. (c)(2)),[1]forcible sexual penetration ( 289, subd. (a)(1)), residential robbery ( 211, 212.5, subd. (a)), first degree burglary ( 459, 460, subd. (a)), and felony false imprisonment ( 236, 237). The jury also found true allegations that the sexual offenses were committed during the commission of a burglary. The court found true allegations that defendant had six prior strikes ( 667, subds. (b)-(i), 1170.12), four prior serious felonies ( 667, subd. (a)), two prison priors ( 667.5, subd. (a)), and a prior rape conviction ( 667.6, subd. (a), 667.61, subds. (a) & (d)). The court sentenced defendant to the indeterminate term of 152 years to life consecutive to the determinate term of 60 years.

On appeal, defendant contends that (1) the warrantless seizure of blood samples from him in order to include them in a DNA databank violated the Fourth Amendment; (2) the court prejudicially erred in ruling that a parolee is subject to blood extraction at any time; (3) the methodology for assessing the statistical significance of a DNA confirmation match after a cold hit from a DNA database is a novel scientific question; (4) the court erred in allowing the prosecutor to elicit evidence that defendant became a suspect because of a cold hit; (5) the prosecutor committed misconduct during closing argument; (6) Evidence Code section 1108 violates the due process clause of the Fourteenth Amendment to the United States Constitution; and (7) the court erred in admitting evidence of his 1983 offenses.

We disagree with all of defendants contentions and, therefore, we will affirm the judgment.

BACKGROUND

Defendant was charged by information with forcible sodomy ( 286, subd. (c)(2); count 1), forcible sexual penetration ( 289, subd. (a)(1); count 2), residential robbery ( 211, 212.5, subd. (a); count 3); first degree burglary ( 459, 460, subd. (a); count 4), and false imprisonment ( 236, 237; count 5). The information further alleged that defendant committed the offenses in counts 1 and 2 during the commission of a burglary ( 667.61, subds. (b) & (e)), that defendant had a prior conviction for rape ( 261, subd. (a)(2); 667.61, subds. (a) & (d), 667.6, subd. (a)), and that defendant had six prior convictions that qualified as strikes ( 667, subds. (b)-(i), 1170.12), four prior serious felony convictions ( 667, subd. (a)), and two prison priors ( 667.5, subd. (a)).

Following a hearing on April 21, 2006, the trial court denied defendants motion to suppress the blood samples taken from him in November 2004, and in December 1989 pursuant to former section 290.2.

As part of his motions in limine for trial, defendant moved for an Evidence Code section 402 hearing regarding the admissibility of DNA evidence. He also moved for exclusion under Evidence Code sections 1101, 1108 and 352, of evidence underlying his 1983 convictions for rape, burglary and residential robbery. Following extended hearings, the court admitted the evidence of the 1983 offenses and the DNA evidence. The court ruled, however, over defendants objection, that evidence that defendant was identified as a suspect based on a cold hit in the DNA database would not be admitted; only testimony that officers were following up on various investigative leads would be admitted.

The Prosecutions Case

The Current Offenses

In November 2004, Jane Doe lived on Alester Street in Palo Alto. She was separated from her husband and their children were with him on the night of Thursday, November 4, 2004. She went to bed that night around 1:00 a.m. She usually locks her doors at night, but does not remember locking her back sliding glass door after it was last used that afternoon.

Doe was awakened when she felt a hand in a knitted glove over her eyes and a sharp object at her neck. A man said, Do what I say or Ill hurt you. He told her to roll over, so she rolled over onto her stomach. As she did so, she saw that the digital clock next to her bed said 2:11 a.m. The man told Doe not to look at him because he did not want her to see him. He tore off pieces of her sheet and blindfolded her. Based on the mans voice and the words he used, she thought that the man was African-American. She confirmed this later when she was able to see the mans hand and part of his forearm.

The man pulled Does pajama pants and underwear down to her ankles. With his bare hands, he rubbed some lotion from the bottle she kept next to her bed onto her buttocks and inside her anus. He tried to put his penis into her anus but was unable to, so he told her to get up onto her knees. Doe allowed the man to pull her hips up so that her head was on her pillow and her buttocks were in the air. She was afraid of what he would do if she did not do what he told her to. The man then put his erect penis into Does anus. After about one minute, the man removed his penis and Doe felt semen dripping onto her buttocks and upper thighs.

The man tied Does hands behind her back. He asked her where she kept her douche, and she heard him go into her bathroom and open her medicine chest. When he came back into the bedroom, she felt him put a bottle of the saline solution she uses for her contact lenses into her anus and squeeze the solution into her. He also poured a glass of water over her. He then brought her feet up to her hands and tied them all together behind her.

The man asked Doe where she kept her jewelry and she told him. She heard him opening drawers and going through the jewelry. He asked her where she kept her gold jewelry and she said that she did not have any. First he told her that if she was lying to him he would hurt her. Then he found some gold chains and told her that she had been lying to him. He asked her where she kept money. She said that she had some in her purse. She heard him look for some money for a while. He brought some cards to her, pulled the blindfold down, and asked her which one was an ATM card and what the PIN was for it. She told him what he wanted to know and he then put the blindfold back up over her eyes.

The man told Doe that he was looking for a closet to put her in, and she heard doors opening and closing in other parts of her house. When the man returned to the bedroom, he said that he found one. He picked Doe up, carried her to the hallway closet, and put her down in the closet. Her pajama bottoms and underwear were still around her ankles. She said that it hurt, so he got a pillow from the bedroom and put it under her. While the man continued to look around the house, Doe was able to rub her head against the pillow to move the blindfold down a little bit. She saw the man standing in the doorway of her sons bedroom, looking inside it. The man was dressed all in black and had a 1980s style, black, puffy jacket on. When he turned his head to the side, Doe could not see his face before she moved the blindfold back up.

The man asked Doe about the residents of her home and she answered his questions. He asked where her son kept his piggy bank and she told him that there was a childs safe in her bedroom. The man asked her the combination, she gave it to him, and he went into the bedroom. She then heard coins being dumped out of the safe. The man came back and closed the door to the closet, wedging Doe in so that she could not move. Doe continued to hear noises coming from her kitchen and living room, and the man came back to the closet a number of times and asked her through the door to confirm the PIN for the ATM card. He told her that if she was lying to him, he would take her with him. Before she heard the front door closing, she heard a can of soda being popped open. She heard nothing after that.

Doe struggled to get the bindings off her hands and feet but they just got tighter, cutting off her circulation. She had a bowel movement. After some period of time, she started screaming, hoping that a neighbor would hear her, but nobody responded. Later that morning, she heard her husbands and daughters voices. She yelled to her husband to put their daughter in the living room. He asked where she was and she told him. When he opened the closet door, she told him to cut off her bindings and he did so. Her hands and feet were swollen and purplish-red. She asked her husband to bring her a telephone so she could call the police. He brought her a phone and then took their daughter back to his house. Doe called 911. While waiting for the police to arrive, she cleaned her buttocks with a washcloth. She put on some pants and shoes with the help of a female officer, and was transported to the hospital.

A Sexual Assault Response Team (SART) nurse examined Doe at the hospital. During the examination, the SART nurse found suspected semen on Does left leg and left heel. The nurse also found bruises, abrasions, and scratches on Does body, and swelling and tenderness in Does anal area. The nurse obtained swabs from Does anus, buttocks, left leg, left heel, and left foot. Blood and saliva samples were also obtained from Doe, and her pants and underwear were turned over to the police.

Does house was in disarray and several pieces of Does jewelry, the wallet that had been on her kitchen counter, and the car that had been in her driveway were missing. The keys to the car had been in Does purse. Her sons laptop computer, his Game Boy and some games were also missing. Approximately $300 was taken out of her bank account by somebody using her ATM card and PIN for two transactions at the Bank of America ATM on University Avenue in East Palo Alto around 3:33 a.m., on Friday, November 5, 2004. The surveillance video at that ATM was not operating correctly at the time of the transactions, so no videotape of the person who completed the transactions was obtained.

Doe got her car back about one week after the incident; an officer found the car in East Palo Alto around 1:00 p.m. on Friday, November 5, 2004. A bloodhound tracked a scent from the cars drivers seat to a nearby residence. A search was conducted that evening in the residence with the consent of its occupants, but nobody was arrested at the residence in connection with the Doe incident.

Palo Alto Police Sergeant Natasha Powers testified that various investigative leads led Palo Alto police officers to suspect defendant. At his daily briefing on the morning of November 10, 2004, San Mateo Deputy Sheriff Heinz Puschendorf was advised that the Palo Alto police had a warrant for defendants arrest. Within a few hours, Deputy Puschendorf saw defendant and a female passenger drive into the parking lot of a convenience store near Redwood City, park, and enter the store. The officer radioed for assistance. He approached defendant when defendant returned to his car, and advised defendant that he was parked in a handicap zone. Defendant shoved the officer and ran. The officer identified himself and yelled at defendant to stop. Defendant kept running and the officer chased him. The officer stopped his chase when other officers set up a perimeter and conducted a search of the area. Officers found defendant near the front porch of a residence, arrested him and took him to the Palo Alto Police Department.

A copy of a citation was found in defendants wallet at the time of his arrest. The citation indicated that around 7:00 p.m. on November 4, 2004, an East Palo Alto police officer cited defendant for being in Bell Street Park after sunset. The park is 1.6 miles from Does residence.

A black, puffy jacket and saliva and pubic hair samples were seized from defendant at the Palo Alto Police Department after his arrest. A phlebotomist drew blood from defendant and turned the blood samples over to an officer. It appeared to an officer later that afternoon that defendant was tampering with, or trying to unlock, his handcuffs while defendant was alone in an interview room at the police station. The officer entered the room and asked defendant to open his mouth. Defendant did so and the officer saw a metal object under defendants tongue. Defendant did not spit out the object into the officers hand when the officer requested him to, but turned his head away from the officer. The officer did pick up a metal object from the floor of the interview room, but the object appeared to be smaller than the object the officer had seen in defendants mouth.

Mark Powell, a criminalist from the county crime lab, testified as an expert in forensic DNA analysis. He received Does sealed SART kit and report on November 8, 2004, and conducted a DNA analysis on some of the items in the kit. He developed a DNA profile for Doe from her blood sample. He also developed a DNA profile for one unknown male from items in the SART kit.

On November 10, 2004, Powell received a blood sample taken from defendant, and developed a DNA profile for defendant from it. The likelihood of a random African-American having the same DNA profile as defendant is 1 in 1.9 quintillion.[2] The likelihood of a random Caucasian having the same DNA profile as defendant is 1 in 4.7 sextillion.[3] The likelihood of a random Hispanic having the same DNA profile as defendant is 1 in 260 quintillion.

In Powells opinion, defendant is the source of the male DNA found on items from the SART kit, two leg swabs and a heel swab. After taking out all of Does DNA from the swab samples collected from her, the random match probabilities of the remaining DNA found on the swabs are between 1 in 22 billion and 1 in 360 trillion for African-Americans, between 1 in 5.4 trillion and 1 in 310 quadrillion for Caucasians, and between 1 in 1 trillion and 1 in 22 quadrillion for Hispanics.

Powell received a black jacket from the crime lab evidence room on November 16, 2004. He visually examined it for the presence of fecal or blood stains, and did not see any. He then returned the jacket to the crime lab evidence room. On April 19, 2005, Powell examined the jacket for the presence of semen. He extracted a semen sample from inside the jacket, and developed a DNA profile for it. The DNA profile matched the DNA profile he had previously developed for defendant. Powell did not find any DNA of Doe on the jacket.

The Prior Offenses

The parties stipulated that defendant was convicted in Santa Clara County Superior Court in October 1983 of three offenses: the rape of Sandra D. on September 12, 1982, with the use of a dangerous and deadly weapon, a screwdriver; the robbery of Sandra D. inside a dwelling on September 12, 1982, with the use of a dangerous and deadly weapon, a screwdriver; and residential burglary in Sunnyvale on September 12, 1982, with the intent to commit rape with the use of a deadly weapon, a screwdriver. In November 1983, defendant was sentenced to prison for these crimes. The record of the conviction was admitted as Peoples exhibit No. 31.

Sandra D. was house-sitting for her daughter in Sunnyvale on September 12, 1982.[4] She fell asleep on the sofa bed in the family room with the television and a lamp on around 1:00 or 2:00 a.m. She was awakened before daylight when defendant hit her on the shoulder. Defendant asked her where her money was. She told him where it was, and told him to take it and to get out. Defendant held up a screwdriver. He told her to do what he said or he would kill her. She tried to grab the screwdriver, and they scuffled for an extended period of time.

During the scuffle the pants of the hospital scrubs Sandra D. was wearing came off her. Defendant penetrated her with his penis three times. The scuffling stopped when she was able to grab the screwdriver. Defendant then ran out the front door with her purse. She called the police. She gave the screwdriver to the police, gave them a description of her assailant, and discovered that the frame of the front door of the home had been broken. She identified defendant as her assailant during a lineup in December 1982, and at a June 15, 1983 hearing.

The Defense Case

Does pajama bottoms, panties, bed sheets, towels, lotion, and saline solution were collected by officers from the home. The home was dusted for fingerprints, but no useable prints were obtained.

On November 5, 2004, Santa Clara County Sheriffs Sergeant George Schifano used a trained bloodhound to follow a scent taken from the drivers seat of Does car. The dog went down the street, up a driveway, and then up to the front door of a residence. The dog stopped at the front door and did not want to continue any further. The house was searched but nothing was seized from it. A daughter of the woman who lived at the house testified that she did not recall ever seeing defendant at the house. Does car was impounded, searched and fingerprinted. Partial prints were lifted from the rear-view mirror.

On November 4, 2004, Edward Robinson was living on Capital Avenue in East Palo Alto. Robinson lived in a cottage in the back of a residence and did odd jobs for the owner of the residence, Robinsons landlord. At the time, Robinson was otherwise unemployed.[5]

Robinson met defendant some time in the 1980s and considers him an acquaintance. Robinson testified that defendant stopped by his home around 1:00 or 1:30 a.m. on the night of November 4, 2004. Robinsons girlfriend Ella Echols was already there. Echols testified that defendant arrived between 11:00 p.m. and midnight.[6] Defendant told Echols that he got a ticket in Bell Park. Defendant freebased cocaine with Robinson while Echols was in another part of the home. Robinson testified that defendant did not leave Robinsons home until Robinson drove him to Diane Thomass home on Saratoga Street in East Palo Alto around 7:00 a.m. Echols testified that she left Robinsons home at 6:00 a.m., and when she returned around 7:00 a.m., Robinson and defendant were gone.

Terrilyn Okeke lives on Saratoga Street in East Palo Alto with her roommate Diane Thomas.[7] Defendant is Okekes family friend. Okeke also knows Robinson, but Thomas does not. Robinson brought defendant to Okekes home around 6:45 a.m. on Friday, November 5, 2004, and defendant stayed the day. Robinson was told that he could not stay. That day, a home health care nurse visited Thomass sick boyfriend. Okeke and Thomas smoked crack with defendant after the nurse left.

Defendants parole agent went to defendants residence in Redwood City on the evening of November 9, 2004. Defendant was not home, but his mother contacted him by telephone for the agent. The agent told defendant that he had missed a mandatory counseling meeting and that the agent needed to see him that night. Defendant said that he did not have any available transportation. Defendant made arrangements with the agent to meet him at his mothers home the next morning. Defendant was not at his home when the agent returned the next morning. The agent probably would not have contacted defendant about the missed meeting if the Palo Alto Police Department had not informed the agent that defendant had been identified as a possible suspect in this case.

Officers searched defendants Redwood City home on November 10, 2004. They seized a pair of pants, a pair of boxer shorts, and a pillowcase full of dirty clothes. They also searched the Fremont home of defendants girlfriend on November 10, 2004. None of the items missing from Does home was found at either the Redwood City or the Fremont home.

Toxicology tests performed on defendants blood sample came back negative for the presence of alcohol and negative for the presence of cocaine, but positive for the presence of a cocaine metabolite. This means that defendant ingested cocaine sometime within 48 to 72 hours prior to when the blood sample was taken.

Rebuttal Evidence

The parties stipulated that no fingerprints associated with defendant were found on any evidence collected in the case. Two of the nine fingerprints developed from items collected by police from Does home were identified as belonging to members of Does family. The remaining seven fingerprints did not have sufficient detail to make any type of identification. One of the two fingerprints found on the rear-view mirror of Does car was identified as belonging to Does son and the other fingerprint did not have sufficient detail to make any type of identification.

Palo Alto Police Detective Robert Bonilla conducted an interview of defendant on November 10, 2004, beginning at 11:55 a.m. Detective Bonilla told defendant that he was suspected of burglary, sexual assault and credit card theft in Palo Alto.

Verdicts, Findings on the Priors, and Sentencing

On October 20, 2006, the jury found defendant guilty of forcible sodomy ( 286, subd. (c)(2); count 1), forcible sexual penetration ( 289, subd. (a)(1); count 2), residential robbery ( 211, 212.5, subd. (a); count 3), first degree burglary ( 459, 460, subd. (a); count 4), and false imprisonment ( 236, 237; count 5). The jury also found true allegations that the offenses in counts 1 and 2 were committed during the commission of a burglary. After defendant waived a jury trial, the court found on October 25, 2006, that defendant had six prior strikes ( 667, subds. (b)-(i), 1170.12), four prior serious felony convictions ( 667, subd. (a)), two prison priors ( 667.5, subd. (a)), and a prior rape conviction ( 667.6, subd. (a), 667.61, subds. (a) & (d)).

On February 20, 2007, defendant filed a request that the court dismiss his prior convictions in the furtherance of justice pursuant to section 1385. The prosecutor opposed the motion. On March 1, 2007, the court denied the request and sentenced defendant to state prison for the indeterminate term of 152 years to life, consecutive to the determinate term of 60 years.

DISCUSSION

Seizure of Blood Samples

Defendant first contends that the seizure of blood samples from him in 1989, without a warrant or probable cause, in order to include an analysis of the blood in a DNA database under former section 290.2 and current section 295 violated the Fourth Amendment. Although the jury was not informed of this fact, it was a cold hit from the DNA database that was one of the investigative leads that led to defendants arrest. Defendant acknowledges that various California courts, including this court, have rejected claims similar to the one he makes here. (See, e.g., People v. King (2000) 82 Cal.App.4th 1363, 1369-1378 (King); Alfaro v. Terhune (2002) 98 Cal.App.4th 492, 505-508; People v. Adams (2004) 115 Cal.App.4th 243, 255-259.) Nevertheless, he presents the issue in order to avoid procedural default and to preserve the issue for presentation to the United States Supreme Court. For the reasons stated in Adams, which we reaffirm, we reject defendants contentions.

Defendant also contends that the seizure of blood samples from him in 2004 violated the Fourth Amendment. Citing People v. Reyes (1998) 19 Cal.4th 743 (Reyes), the trial court denied defendants motion to suppress evidence relating to the blood samples. Defendant argues that a parolees reduced expectation of privacy does not enable the state through its myriad official representatives to force parolees to provide blood samples at the will of the state, without judicial oversight.

In reviewing the trial courts denial of a motion to suppress evidence, we view the record in the light most favorable to the trial courts ruling, deferring to those express or implied findings of fact supported by substantial evidence. [Citations.] We independently review the trial courts application of the law to the facts. [Citation.] In conducting our independent review, we are concerned with the correctness of the ruling, not the trial courts reasoning. [Citations.] (People v. Zichwic (2001) 94 Cal.App.4th 944, 950-951.)

A cold hit in the DNA database identified defendant as a possible suspect in this case. At the time, defendant was on parole. Search conditions are imposed automatically on every parolee in California. (People v. Lewis (1999) 74 Cal.App.4th 662, 668; Reyes, supra, 19 Cal.4th at p. 763 (conc. and dis. opn. of Kennard, J.); see also 3067.) In Reyes, our Supreme Court held that an adult parolee subject to a search condition could be searched even if the searching officers did not have a reasonable suspicion that the parolee had violated or was planning to violate either the law or the conditions of parole. (19 Cal.4th at p. 753.)

The Reyes court found that a parolee has a greatly reduced expectation of privacy. As a convicted felon still subject to the Department of Corrections, a parolee has conditional freedomgranted for the specific purpose of monitoring his transition from inmate to free citizen. The state has a duty not only to assess the efficacy of its rehabilitative efforts but to protect the public, and the importance of the latter interest justifies the imposition of a warrantless search condition. (Reyes, supra, 19 Cal.4th at p. 752.) The level of intrusion is de minimis and the expectation of privacy greatly reduced when the subject of the search is on notice that his activities are being routinely and closely monitored. Moreover, the purpose of the search condition is to deter the commission of crimes and to protect the public, and the effectiveness of the deterrent is enhanced by the potential for random searches. (Id. at p. 753.)

We recognized in Reyes that whether the parolee has a reasonable expectation of privacy is inextricably linked to whether the search was reasonable. A law enforcement officer who is aware that a suspect is on parole and subject to a search condition may act reasonably in conducting a parole search even in the absence of a particularized suspicion of criminal activity, and such a search does not violate any expectation of privacy of the parolee. (People v. Sanders (2003) 31 Cal.4th 318, 333 (Sanders).)

More recently, in Samson v. California (2006) 547 U.S. 843, the United States Supreme Court held that a suspicionless search of a parolee conducted under the authority of section 3067 does not violate the Fourth Amendment. (Id. at pp. 846, 856-857.) Section 3067, which applies to an inmate who is eligible for release on parole for an offense committed on or after January 1, 1997 ( 3067, subd. (c)), states in relevant part: Any inmate who is eligible for release on parole . . . shall agree in writing to be subject to search or seizure by a parole officer or other peace officer at any time of the day or night, with or without a search warrant and with or without cause.

For over 40 years, it has been accepted that a blood draw, performed in a reasonable manner, is only a minor intrusion into a persons body. (See Schmerber v. California (1966) 384 U.S. 757, 771-772.) Here, the 2004 blood draw was performed by a phlebotomist at the police station after defendants arrest. Moreover, because of the cold hit, the police had at least a reasonable suspicion that defendant was involved in a crime and could be identified by his blood, and defendant was subject to warrantless searches as a condition of his parole. The Fourth Amendment prohibits only unreasonable searches and seizures. We cannot say that a blood draw of a parolee subject to a search condition based on particularized suspicion as occurred here is an unreasonable search or seizure. (Sanders, supra, 31 Cal.4th at p. 333; see also, King, supra, 82 Cal.App.4th at p. 1374.) Accordingly, the trial court did not err in denying defendants motion to suppress the blood sample taken from him in 2004.

DNA Testimony

Defendant filed a brief in the trial court challenging the use of the unmodified product rule to assess the statistical significance of a DNA confirmation match, after a suspect had been identified through a cold hit from a DNA database search. Defendant contends in this court that because he was first identified by a cold hit, the random match probability testified to by Powell, the expert in forensic DNA analysis, using an unmodified product rule, was not the correct statistical analysis, and that the scientific community has not yet generally accepted any one statistical methodology over another for determining the significance of a DNA match in a cold hit case. (See People v. Kelly (1976) 17 Cal.3d 24 (Kelly) [the admissibility of evidence produced by a new scientific technique requires a preliminary showing of the techniques general acceptance in the relevant scientific community].)

The Attorney General contends that appellants claim was recently rejected in People v. Nelson (2008) 43 Cal.4th 1242 (Nelson). In that case, the question before our Supreme Court was whether use of the product rule in a cold hit case is permissible. (Id. at p. 1263.) The court concluded that use of the product rule in a cold hit case is not the application of a new scientific technique subject to a further Kelly (or Kelly-like) test. (Id. at pp. 1263-1264.) The court noted that [n]othing in the Kelly test requires that there be one and only one approach to a scientific problem. The question is whether scientists significant in number or expertise publicly oppose a technique as unreliable, not whether some scientists believe there may be an alternative, perhaps even better, technique available. It is already settled that the product rule reliably shows the rarity of the profile in the relevant population. [Citation.] To this extent, the product rule has already passed the Kelly test. (Id.at p. 1263.)

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 [citations] 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 p. 1267.) 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.)

The statistics derived from the use of the unmodified product rule were properly admitted in this cold hit case, even though other probability statistics might also have been admissible. (Nelson, supra, 43 Cal.4th at p. 1267, fn. 3.) The court did not err in denying defendants motion to exclude testimony regarding the use of the unmodified product rule.

The Cold Hit Evidence

The trial court excluded any evidence that a cold hit had occurred. However, over defendants objection, the court ruled that the jury could be told that various investigative leads led the police to suspect defendant and to seek his arrest in order to obtain a blood sample. Defendant now contends that the court erred in admitting any evidence as to the reason why the police suspected defendant, because the evidence was irrelevant, and that the prosecutor committed misconduct by alerting the jury that one of the investigative leads that led the police to suspect defendant was a cold hit.

In determining the admissibility of the challenged evidence, we apply well-settled rules. Only relevant evidence is admissible. [Citations.] Relevant evidence is defined in Evidence Code section 210 as evidence having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action. The test of relevance is whether the evidence tends logically, naturally, and by reasonable inference to establish material facts such as identity, intent, or motive. [Citations.] The trial court retains broad discretion in determining the relevance of evidence. [Citation.] (People v. Garceau (1993) 6 Cal.4th 140, 176-177.) A trial courts exercise of discretion in admitting or excluding evidence is reviewable for abuse [citation] and will not be disturbed except on a showing the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice [citation]. (People v. Rodriguez (1999) 20 Cal.4th 1, 9-10.)

[T]he means by which a particular person comes to be suspected of a crimethe reason law enforcements investigation focuses on himis irrelevant to the issue to be decided at trial, i.e., that persons guilt or innocence, except insofar as it provides independent evidence of guilt or innocence. (People v. Johnson (2006) 139 Cal.App.4th 1135, 1150.) A DNA database search and a resulting cold hit are investigative tools, not evidence of guilt. (See id. at pp. 1150-1151, fn. 17.) The fact [defendant] was first identified as a possible suspect based on a database search simply does not matter. (Id. at p. 1151, fn. omitted.) [W]hat matters is the subsequent confirmatory investigation. (Ibid., fn. omitted.)

Here, the trial court did not abuse its discretion by determining that the prosecution could present testimony that officers were following up on various investigative leads when they sought to arrest defendant and obtain a blood sample from him. The court first ruled that evidence that defendant was identified as a possible suspect based on a cold hit from a DNA database was irrelevant and inadmissible. The court subsequently admitted evidence of investigative leads that did not lead officers to suspect defendant, such as the bloodhound and fingerprint testimony. The testimony that various investigatory leads did lead officers to suspect defendant did not necessitate undue consumption of time or create a substantial danger of undue prejudice, of confusing the issues, or of misleading the jury. (See Evid. Code, 352.) In addition, the testimony was not offered as evidence of defendants guilt. We will not disturb the trial courts exercise of discretion in this matter.

Following the courts ruling, the prosecutor told the jury during his opening statement that the police and the crime lab developed a full DNA profile, a full and complete DNA profile from semen found on Doe, and that after they develop[ed] this profile, the defendant was identified as a possible suspect. So based on a profile, the crime lab contacted the Palo Alto Police Department and said you need to go get a vial of blood from a man named Stanley Wells. At a discussion at the bench requested by defense counsel, counsel objected and moved for mistrial. The court denied the motion for mistrial, stating that it was not sure that the prosecutor had violated its ruling except by the way you lined up the language, so you better unline it up pretty quick. [S]omeone might conclude that the way you line him up as a suspect was from that profile so what you are going to have to do, I think, is explain some. It sounds like you are hinting theres something in that DNA to finger him, and thats what were trying to avoid. They went in and investigated him because he was for whatever reason, a reason to be unmentioned, he was among the group of potential suspects. It was just not going to be related to DNA why he was part of that group. So you just have to say it in a way that doesnt link those two.

The prosecutor then told the jury, without objection, that after the lab developed the DNA profile, a Palo Alto police officer went to arrest defendant with the intent to obtain a vial of his blood. Defendant was arrested, his blood was drawn, the blood was sent to the lab, his DNA profile was developed, and the profile matched the profile that was found on Jane Doe.

A little later, the prosecutor told the jury that Doe reported that the person who assaulted her was wearing a black, puffy jacket, and when defendant was arrested, after the DNA profile had been developed, he was wearing a black, puffy jacket. At a bench discussion held at the request of defense counsel, counsel again objected and moved for mistrial. The court sustained the objection but denied the motion for mistrial. The court told the prosecutor that all you should explain is that defendant was approached, he [fled], he was arrested, taken a blood sample; they then ran it and got a match.

The evidence at trial was that Doe saw that her assailant was wearing a black, puffy jacket; Powell received Does SART kit on November 8, 2004, and developed DNA profiles from the evidence in the kit; various investigative leads led the police and defendants parole agent to become interested in defendant beginning the evening of November 9, 2004; defendant was arrested on November 10, 2004, while wearing a black, puffy jacket; defendants blood was drawn and his DNA profile matched the profile developed from Does SART kit.

It is misconduct for a prosecutor to violate a court ruling by eliciting or attempting to elicit inadmissible evidence in violation of a court order. [Citation.] (People v. Crew (2003) 31 Cal.4th 822, 839 (Crew); see also, People v. Smithey (1999) 20 Cal.4th 936, 960.) A prosecutors misconduct violates the Fourteenth Amendment to the United States Constitution when it infects the trial with such unfairness as to make the conviction a denial of due process. [Citations.] In other words, the misconduct must be of sufficient significance to result in the denial of the defendants right to a fair trial. [Citations.] A prosecutors misconduct that does not render a trial fundamentally unfair nevertheless violates California law if it involves the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury. [Citations.] (People v. Cole (2004) 33 Cal.4th 1158, 1202.) A defendants conviction will not be reversed for prosecutorial misconduct, however, unless it is reasonably probable that a result more favorable to the defendant would have been reached without the misconduct. [Citation.] (Crew, supra, 31 Cal.4th at p. 839.)

In this case, even if we assume that there was misconduct by the prosecutor, we find that any such misconduct did not render defendants trial fundamentally unfair. The prosecutor did not tell the jury that defendant was identified as a suspect as the result of a cold hit in a DNA database. Nor did the prosecutor elicit testimony to that effect. Although the prosecutor claimed and the evidence showed that defendant was identified as a suspect after the crime lab developed a DNA profile of Does assailant from the evidence in Does SART kit, the evidence also showed that the lab determined that defendants DNA matched that profile after defendants blood sample was taken following his arrest. No evidence was presented that the lab determined that defendants DNA matched the DNA profile of Does assailant before defendant was arrested and his blood was drawn. Accordingly, we also find that it is not reasonably probable that a result more favorable to the defendant would have been reached without the claimed misconduct. (Crew, supra, 31 Cal.4th at p. 839.)

Closing Argument

During his closing argument, when referring to defense counsels argument about the DNA evidence, the prosecutor twice argued to the jury that counsel was attempting to trick it. The prosecutor argued: Under the defenses argument of DNA, shes basically arguing that DNA isnt really reliable because they only use a database of 100 people to determine these allele frequencies. Remember, that is an attempt by the defense to misconstrue and trick you because remember Mark Powell test-- The court overruled the objection of defense counsel at this point.

The prosecutor then argued: Mark Powell testified that they used 100 people per ratio group in developing this particular database. But he also said they have done other databases based on 1,000 people, and there is no difference between whether its 100 or 1,000; they get the same results. . . . [] The defense also tried to trick you by saying -- Defense counsel again objected, and the court again overruled the objection.

The prosecutor continued: Well, they said[defense counsel] got up here and said to you that the amount of the sample was too small. She said it was too small. What does she mean too small? That isnt true at all.

Defense counsel objected to the prosecutors arguments as maligning my character. When it overruled the objections, the court stated: Its just argument, its not evidence. I dont think theyre real professional. I dont appreciate them, but I dont think theyre misconduct. Defendant now contends that the court erred in overruling the objections, as [i]t is misconduct [for the prosecutor] to accuse defense counsel of attempts to mislead the jury. Defendant further contends that the misconduct was prejudicial in view of the many other errors in the case, the defenses persuasive alibi witnesses, and the unusual length of deliberations.[8]

Regarding the scope of permissible prosecutorial argument, [our Supreme Court has] noted a prosecutor is given wide latitude during argument. The argument may be vigorous as long as it amounts to fair comment on the evidence, which can include reasonable inferences, or deductions to be drawn therefrom. [Citations.] It is also clear that counsel during summation may state matters not in evidence, but which are common knowledge or are illustrations drawn from common experience, history or literature. [Citation.] A prosecutor may vigorously argue his [or her] case and is not limited to Chesterfieldian politeness [citation], and he [or she] may use appropriate epithets. . . . [Citation.] [Citation.] (People v. Hill (1998) 17 Cal.4th 800, 819.) However, [a] prosecutor commits misconduct if he or she attacks the integrity of defense counsel, or casts aspersions on defense counsel. [Citations.] An attack on the defendants attorney can be seriously prejudicial as an attack on the defendant himself, and, in view of the accepted doctrines of legal ethics and decorum [citation], it is never excusable. [Citation.] (Id. at p. 832.)

The Attorney General contends that, [c]onsidered in context, it is evident that the prosecutor was not personally disparaging defense counsel but rather arguing that counsels argument misconstrued the evidence. We agree with the Attorney General. The prosecutor was not attacking the integrity of, or casting aspersions on, defense counsel. Rather, the prosecutor was commenting on the expert testimony regarding the DNA analysis and arguing that defense counsel was misconstruing or misinterpreting it. As the trial court found, while the prosecutors choice of the term trick was not real professional, the prosecutors argument did not rise to the level of misconduct.

Prior Offenses Evidence

Defendant contends that the court erred in admitting pursuant to Evidence Code sections 1108 and 352 evidence of the conduct underlying his prior convictions for rape and burglary. He argues that Evidence Code section 1108 violates the due process clause of the federal Constitution. He acknowledges that our Supreme Court has found section 1108 to be constitutional (People v. Falsetta (1999) 21 Cal.4th 903, 907), and that this court is bound by that ruling (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455), but presents his argument to preserve his ability to take the issue to a higher court. Accordingly, we reject defendants Evidence Code section 1108 due process claim.

Defendant also contends that the court erred in admitting pursuant to Evidence Code sections 1101 and 352 evidence of the conduct underlying his prior conviction for robbery on the issues of intent and motive. He argues that this evidence did not pass muster under [Evidence Code] section 1101(b), for any purpose, and, therefore, admission of the evidence was a denial of his Fourteenth Amendment right to due process.

Evidence that a defendant has committed crimes other than those currently charged is not admissible to prove that the defendant is a person of bad character or has a criminal disposition; but evidence of uncharged crimes is admissible to prove, among other things, . . . the intent with which the perpetrator acted in the commission of the charged crimes. (Evid. Code, 1101.) Evidence of uncharged crimes is admissible to prove . . . intent only if the charged and uncharged crimes are sufficiently similar to support a rational inference of . . . intent. [Citation.] On appeal, the trial courts determination of this issue, being essentially a determination of relevance, is reviewed for abuse of discretion. [Citations.] (People v. Kipp (1998) 18 Cal.4th 349, 369.)

The least degree of similarity (between the uncharged act and the charged offense) is required in order to prove intent. [Citation.] (People v. Ewoldt (1994) 7 Cal.4th 380, 402 (Ewoldt).) In order to be admissible to prove intent, the uncharged misconduct must be sufficiently similar to support the inference that the defendant  probably harbor[ed] the same intent in each instance. [Citations.] [Citation.] (Ibid.)

Evidence of uncharged crimes is also admissible to prove motive. (Evid. Code,  1101, subd. (b).) However, [e]vidence of uncharged offenses is so prejudicial that its admission requires extremely careful analysis. [Citations.] [Citations.] Since substantial prejudicial effect [is] inherent in [such] evidence, uncharged offenses are admissible only if they have substantial probative value. [Citation.] (Ewoldt, supra, 7 Cal.4th at p. 404.)

The court admitted evidence of the 1982 burglary and rape under Evidence Code section 1108. In ruling that the evidence of the prior robbery would be admitted under Evidence Code section 1101, the court noted that the defendants intent to take the property must have been formed before or during the time he used force or fear. If the defendant did not form this required intent until after using the force or fear, then he did not commit the robbery. [W]hoever that perpetrator was, the People need to show the intent . . . and that isnt necessarily clear. Certainly theyre entitled the People are entitled to put some proof to bolster that intent, and I think they have that through the robbery in 1982, so Im going to allow in evidence of the 82 incident which would include the robbery. The court later instructed the jury that evidence of the prior robbery can only be used in the case for motive and intent.

Defendant contends that the issues of intent and motive were not in dispute, so that those terms became euphemisms for identity. We disagree. [A] fact like defendants intent generally becomes disputed when it is raised by a plea of not guilty or a denial of an allegation. (People v. Rowland (1992) 4 Cal.4th 238, 260.) The cases cited by defendant where our Supreme Court found inadmissible evidence of other crimes on the issues of motive and intent are distinguishable, as in those cases the defendant was seeking to present evidence of a third partys criminal history. (People v. Davis (1995) 10 Cal.4th 463, 501; People v. Farmer (1989) 47 Cal.3d 888, 921.)

Defendant further argues that, [i]n view of the prejudicial impact of such evidence, and the lack of probative value of the evidence in this case, . . . the evidence should have been excluded under [Evidence Code] section 352. The effect of the evidence and indeed its intended effect was to convince the jury that [defendant] was a dangerous man predisposed to violence.  We have long recognized that if a person acts similarly in similar situations, he probably harbors the same intent in each instance [citations], and that such prior conduct may be relevant circumstantial evidence of the actors most recent intent. The inference to be drawn is not that the actor is disposed to commit such act; instead, the inference to be drawn is that, in light of the first event, the actor, at the time of the second event, must have had the intent attributed to him by the prosecution. [Citation.] (People v. Rowland, supra, 4 Cal.4th at p. 261.)

The prosecution presented evidence that, during the 1982 robbery, defendant entered a residence in the middle of the night and demanded money from the sole female occupant. Although the victim told defendant where her money was, and told him to take it and to then leave, defendant held up a screwdriver and told the victim to do what he said or he would kill her. During the ensuing struggle, the defendant penetrated the victim with his penis. He ran out of the house with the victims purse when the victim was able to gain control of the screwdriver.

In the case before us, defendant entered a residence in the middle of the night, placed a sharp object next to the sole female resident and, after telling her to do what he said or he would hurt her, he raped her, tied her up, and demanded money and jewelry. He left the residence with jewelry, money, and other items from the victims purse. Under the facts of this case, we agree with the trial court that defendants prior acts were sufficiently similar to the current offense to be relevant and admissible on the issues of motive and intent. The evidence was also no more prejudicial or inflammatory than the evidence of the prior rape and burglary. Furthermore, as the evidence was relevant to the issues of motive and intent, and was not admitted to show defendants disposition to commit the charged robbery, there was no violation of defendants federal constitutional right to due process. (Estelle v. McGuire (1991) 502 U.S. 62, 69-70.)

DISPOSITION

The judgment is affirmed.

_______________________________________________________

Bamattre-Manoukian, ACTING P.J.

WE CONCUR:

__________________________

MIHARA, J.

_________________________

MCADAMS, J.

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[1] Further unspecified statutory references are to the Penal Code.

[2] 1 quintillion is 1 followed by 18 zeros, or a billion times a billion.

[3] 1 sextillion is 1 followed by 21 zeros.

[4] The testimony of Sandra D. at the preliminary examination of defendants 1983 case was read into the record at this trial because she was not available.

[5] Robinson admitting having been convicted of drug possession and assault with a deadly weapon, inflicting great bodily injury.

[6] Echols admitted having been convicted of petty theft with a prior, sales of cocaine and cocaine base, making a false claim to a public board or officer, misdemeanor giving false ID to an officer, and misdemeanor assault with a deadly weapon.

[7] Thomas admitting having been convicted of giving a false name to a police officer, and transporting and selling a controlled substance.

[8] The jury began its deliberations at 11:00 a.m. on October 18, 2006, and informed the court at 12:17 p.m. on October 20, 2006, that they had reached a verdict.