P. v. Nilsen

Filed 6/30/08 P. v. Nilsen CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION THREE

Appeal from a judgment of the Superior Court of Orange County, William R. Froeberg, Judge. Affirmed.

Brent F. Romney; E. Thomas Dunn, Jr., for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Lynne McGinnis and Andrew Mestman, Deputy Attorneys General, for Plaintiff and Respondent.

* * *

A jury convicted defendant John Steadman Nilsen of first degree murder (Pen. Code,  187, subd. (a))[1] and second degree robbery ( 211, 212.5, subd. (c)), and found true the special circumstance allegation he committed the murder during the commission of a robbery ( 190.2, subd. (a)(17)(A)), and the enhancements he discharged a firearm causing great bodily injury or death ( 12022.53, subd. (d)), and personally used a firearm ( 12022.53, subd. (b)). In a bifurcated trial, the jury found true allegations defendant had suffered nine prior convictions. The court sentenced defendant to an indeterminate term of life without possibility of parole, tripled, and a determinate sentence of 80 years.

Defendant contends (1) insufficient evidence supports the jury verdict because eyewitness identifications of him were inconsistent and untrustworthy, and (2) the trial courts denial of his pretrial suppression motion was erroneous because the forcible taking of his D.N.A. sample in 1995 under former section 290.2[2] violated his Fourth Amendment right to be free from unreasonable searches and seizures. We disagree and affirm the judgment.

FACTS

On the evening of January 29, 2004, Anna Peters, assistant manager of a 99 Cents Only Store, was working at the back of the store in a warehouse open only to employees. Another employee brought into the warehouse a man who was looking for a manager. Peters asked the man, Can I help you? Pulling a gun from his waist area, the man pointed it at Peterss chest and asked, Wheres the safe? Peters replied, The safe is in the front. The man stated, Im not kidding. Peters said, Please calm down. The safe is in the front. Im gonna give you all the money. The man told Peters they would go to the front.

They were about to exit the warehouse when a third employee, Jovani Fuerte, entered. The man grabbed Fuerte, saying he wanted money. Fuerte, seeing the man had a gun hidden in his jacket, pulled out his wallet. The man grabbed the wallet and put it in his pocket. He said he wanted more money and asked Fuerte where the cashier or the safe box was. The man said, Lets go to the front. He walked out of the warehouse pushing Fuerte ahead of him and holding his gun to Fuertes back.

Peters was behind them, but at some point not that close. She hid in front of the end cap on the next aisle and tried to phone 911 on a cell phone.

The man and Fuerte walked quickly to the registers at the front of the store. Shawna Wolfgram was working at a register. The man came up to Wolfgrams register and reached in. There was a rattling sound as the man either tried to take cash from the register tray or to take the entire tray, and Wolfgram tried to slap it back down, cover the money with her hands and hold the register down. Wolfgram said, Im being robbed into the microphone. The man pulled out a gun and shot her in the chest. Wolfgram fell to the ground and turned blue. The man ran from the store, stopped at a cinder block wall in the parking lot, looked back for a second, then jumped over the wall.

Video taken by the stores surveillance cameras captured the suspects left hand wearing a dark glove. An investigator found a black and gray glove in a parking lot near an alley behind the wall over which the suspect had jumped.

A forensic scientist collected a swab with sufficient D.N.A. from inside the glove to enable him to obtain a full genetic profile. He also developed a genetic profile for defendant taken from an oral swab. He determined that although there was D.N.A. from at least three individuals taken from inside the glove, a profile of the major contributor was the same as the profile obtained from [defendants] standard. This major profile would be expected to occur less than one in one trillion unrelated individuals within the population.

In a photographic lineup of six photographs shown to eyewitnesses on March 19 and 20, 2004, defendants photograph was number four. Peters, the assistant manager, and Sandra Estrada, a customer who had received change from Wolfgram just before the shooting, identified the perpetrator as the man in photograph number four. Another eyewitness, Karen Birdsong (the customer at the register next to Wolfgrams), indicated at first she did not recognize anyone in the photographic lineup, but after being asked if any person was even close, she pointed to photograph number four and said his mustache and eyes looked similar. A fourth eyewitness, Kristian Hayes (a customer behind Estrada in Wolfgrams line), eliminated photographs one, two, three and six, but could not eliminate photographs four or five.

All four of these eyewitnesses identified defendant in court as Wolfgrams killer.

A March 24, 2004 search of defendants apartment uncovered brushes (which can be used to clean guns) and a 99 Cents Store bag. The police also found a January 31, 2004 Orange County Register containing an article about Wolfgrams murder underneath the refrigerator. In a small fenced-in patio area outside the apartment, behind a small figurine of a Buddha in a knot hole of [a] tree, an officer found an expended .38-caliber shell casing . . . . Defendant was arrested that same day.

Defendants older brother, Ken Nilsen, with police permission, went to defendants apartment on March 24, 2004, to pick up and store defendants personal belongings. There he located a handgun, holster, and ski mask which he gave to the police.[3]

A police investigator who inspected the gun found it was loaded with five rounds and the chamber underneath the hammer was empty. A forensic scientist determined the gun was a .357 magnum revolver and the ammunition was Federal brand .38 special caliber bullets. He opined the fired casing found in the knot hole of the tree was fired by the gun. He further determined that recovered fragments of the projectile from [Wolfgrams] autopsy appeared to come from a Federal brand .38 special or .357 magnum bullet. But due in part to the heavy impact damage to the projectile, he could not identify or eliminate that particular bullet as having been fired from this revolver.

As we shall discuss in further detail below, the defense presented evidence that the eyewitness descriptions of the suspect conflicted in certain respects with one another and with the defense testimony of defendants neighbor.

Defendants forensic expert testified that although defendant could not be excluded as a contributor to the D.N.A. inside the glove, it was not clear his D.N.A. was actually on the glove. This uncertainty resulted from the size and mixed nature of the sample, the impossibility of knowing how many donors were in the mixed sample, the possibility that an intermediary could have transferred defendants D.N.A. onto the glove, and the potential that D.N.A. can last for a long time, even months and years, in a sample.

Defendants expert on eyewitness identification, a psychology professor, testified about studies done with staged test crimes that have demonstrated the risk factors involved in obtaining accurate eyewitness identification of suspects based on photo lineups. In general, for more accurate identifications, lineups should be conducted sooner rather than later. In addition, the expert testified about the reliability of cross-racial identification: [P]eople are generally better at identifying somebody of their own racial [or] ethnic background . . . .

Defendant presented evidence that brushes of the type found at his apartment can be bought at auto parts stores.

The parties stipulated, inter alia, that no D.N.A. was found on the tennis shoes and shell casing found during the search of [defendants] home, nor were his fingerprints on the gun, holster, Buddha, shell casing, [or] rounds found in the gun (although the Buddha was not processed for D.N.A. or fingerprints). In addition, fingerprints of comparison value found at the store were not defendants.

DISCUSSION

Substantial Evidence Supported Defendants Conviction

Defendant contends insufficient proof was adduced to prove to a reasonable jury that he was the culprit. He argues that given the inconsistencies in the descriptions of the perpetrator given by the various witnesses and the undisputed expert testimony . . . about the inherent dangers of eyewitness identifications, the jurys verdict was unreasonable.

In assessing a claim of insufficiency of evidence, the reviewing courts task is to review the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence that is, evidence that is reasonable, credible, and of solid value such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Rodriguez (1999) 20 Cal.4th 1, 11.) Reversal on this ground is unwarranted unless it appears that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction]. (People v. Bolin (1998) 18 Cal.4th 297, 331.)

At the time of his arrest, defendant measured 63 tall and weighed 200 pounds. He was 46 years old at the time of the shooting. A 1985 fingerprint card records his height as 62, his weight at 185 pounds, his build as medium, his hair as blond, and his eyes as blue. A 1989 fingerprint card notes his height as 63, his weight at 190 pounds, his build as heavy, his hair as blond, and his eyes as hazel.

Defendant compares these statistics to those contained in eyewitness descriptions of him, and concludes the eyewitness identifications were vague and/or inaccurate. The six eyewitness descriptions, given in police interviews on the day of the murder, were as follows:

(1) Hayes described the suspect as a male white [61 to 62] in his late forties [or] early fifties with a skinny build, approximately [150 to 170 pounds], a grayish goatee, and short gray hair (protruding from under a faded blue baseball cap), wearing a t-shirt under a light colored flannel long-sleeved shirt.

(2) Peters described the suspect as a male white, [age] 40, [6 to 61], [with a] thin to medium build, approximately [180 pounds], having short black and gray hair, unknown facial hair, wearing a long-sleeved light blue possible flannel shirt with unknown color t-shirt, Levis and unknown colored shoes. While watching the surveillance video, she identified the suspect but pointed to his head where he was wearing a beanie . . . and said she did not remember [him] having that on when he confronted her in the warehouse.

(3) Birdsong described the suspect as a male white in his late forties or early fifties approximately 61 tall, weighing approximately 190 pounds, with a thick mustache that extended down past the corners of his mouth and wearing a grayish blue knit beanie cap, blue jean pants, and a medium gray long-sleeved sweater.

(4) Estrada described the suspect as a male white in his fifties, approximately 63 to 65, thin to a medium build, wearing some type of beanie, blue jeans and a blue sweatshirt, with gray or white hair and a sucked up and dirty face, deep, sunken eye sockets, and slender facial features.

(5) Fuerte described the suspect as a male white in his forties, with short, blond hair sticking out of a black beanie, with an unshaven mustache, weighing about 160 to 175 pounds, over six feet tall, and tall and skinny.

(6) Jon Hook, a witness who observed the suspect run out of the store and jump over a cinder block wall, described the man as wearing some kind of long-sleeve attire and a beanie. At trial Hook described the suspect as about six one-ish, [with a] slender build.

Contrary to defendants assertion that these six descriptions are replete with inaccuracies and inconsistent with one another, they share much in common and generally accord with defendants vital statistics. All six eyewitnesses described the suspect as a (1) white man, (2) around 61 or slightly taller, (3) wearing a long-sleeved top (with the exception of Fuerte who did not describe any clothing) and some type of cap (with the exception of Peters who did not recall the man wore a hat in the warehouse), and (4) in his forties (with the exception of Estrada who specified in his fifties, and Hook who apparently did not mention age).

Defendant stresses he weighed 200 pounds at the time of his arrest (less than two months after the crimes). The eyewitnesses judged his weight as between 170 to 190 pounds (with the exception of Estrada and Hook who did not estimate his weight in pounds). In addition, Hayes called the suspects build skinny, and Fuerte and Hook slender. Of course, defendant may have gained weight in the intervening two months between the shooting and his arrest. Also, the long-sleeved top worn by the suspect may have cloaked his build to a certain extent. Finally, opinions as to what constitutes a slender build, compared to a medium one, will vary with the beholder; even the official fingerprint cards designated defendant as of medium or heavy build based on a differential of only five pounds. (The fingerprint cards also conflicted on his height by one inch and his eye color, blue versus hazel.)

Defendant asserts he did not have blonde hair, yet Fuerte described his hair as blond. But defendant fails to inform us of his true hair color or to point us to any record reference on this subject. Instead, he asserts a 1998 black and white photograph in the record shows he has virtually no hair at all, a statement unsupported by the actual photo. Defendants 1985 and 1989 fingerprint cards record his hair as blond at that time. Hayes, Estrada, and Peters described the suspects hair color as, respectively, gray; white or gray; or gray and black descriptions defendant does not contend are inaccurate.

Defendant alleges other inaccuracies, inconsistencies, or failure of recall. He points out Peters could not identify [his] shoes or their color. He notes the only witness who described a gray long-sleeved sweater was Birdsong. He quibbles that he is not exactly 61. He complains Hayes is the only witness who saw a gray goatee or a faded blue baseball cap. He observes Estrada is the only one who saw a sucked up, dirty face. He contrasts the eyewitness descriptions with his neighbors testimony for the defense that defendant was tall and regular, not overly or real skinny, and the neighbor did not recall him having a beard or Fu Manchu mustache or ever looking scruffy or dirty.

These purported inconsistencies or inaccuracies do not render the jurys verdict unreasonable. [W]hen the circumstances surrounding the identification and its weight are explored at length at trial, [and] where eyewitness identification is believed by the trier of fact, that determination is binding on the reviewing court. (In re Gustavo M. (1989) 214 Cal.App.3d 1485, 1497.) Apropos the question of identity, to entitle a reviewing court to set aside a jurys finding of guilt the evidence of identity must be so weak as to constitute practically no evidence at all. [Citations.] The strength or weakness of the identification, the incompatibility of and discrepancies in the testimony, if there were any, the uncertainty of recollection, and the qualification of identity and lack of positiveness in testimony are matters which go to the weight of the evidence and the credibility of the witnesses, and are for the observation and consideration, and directed solely to the attention of the jury . . . . (People v. Lindsay (1964) 227 Cal.App.2d 482, 493-494.)

Moreover, additional substantial evidence (besides the eyewitness identifications) supported defendants conviction: the dark glove seen on the surveillance video and found on the suspects escape route; the D.N.A. inside the glove to which defendant was a major contributor; the fired .38 caliber casing in a tree outside his home; the discovery in his apartment of a newspaper article on the killing, several brushes, and the .357 handgun which fired the expended shell and could not be excluded as the weapon that shot Wolfgram; and the Federal brand shared by the ammunition in the gun and the bullet that killed Wolfgram. Accordingly, defendants substantial evidence challenge to his convictions fails.

The Trial Court Did Not Err by Denying Defendants Suppression Motion

Defendant filed a section 1538.5 pretrial motion to suppress evidence, arguing, inter alia, the 1995 taking of his D.N.A. without his consent pursuant to former section 290.2 constituted an illegal seizure.[4] The court denied defendants suppression motion, except as to four items irrelevant to the issue at hand.

On appeal, defendant contends the court should have granted his suppression motion because he would not have even been a suspect in this case absent a cold hit which indicated a potential match between the D.N.A. sample found in the glove . . . and a D.N.A. sample [he] was compelled to provide in 1995 . . . . He argues the taking of his D.N.A. in 1995 violated his Fourth Amendment right to be free from unreasonable searches and seizures, and concludes the evidence seized in this case, including the identity of [defendant] as a suspect, is fruit of the poisonous tree.

Defendant acknowledges his argument is contrary to currently controlling case law noting the D.N.A. data base statute has been upheld not only in Californias appellate courts . . . , but in the Ninth Circuit Court of Appeals but wishes to preserve the issue for further appellate review.

DNA data base and data bank acts have been enacted in all 50 states as well as by the federal government. [Citations.] Various constitutional challenges to these acts have been rejected consistently. [Citation.] A challenge to former section 290.2, the predecessor of the Act, was rejected in this state by People v. King [2000] 82 Cal.App.4th 1363 . . . .  The various decisional authorities addressing and rejecting constitutional challenges to state DNA data base and data bank acts are collected in the Annotation, Validity, Construction, and Operation of State DNA Database Statutes [(2000)] 76 A.L.R. 5th 239.[] [] In view of the thoroughness with which constitutional challenges to DNA data base and data bank acts have been discussed, there is little we would venture to add. We agree with existing authorities that (1) nonconsensual extraction of biological samples for identification purposes does implicate constitutional interests; (2) those convicted of serious crimes have a diminished expectation of privacy [which specifically extends to the persons identity ([citation])] and the intrusions authorized by the Act are minimal; and (3) the Act serves compelling governmental interests. Not the least of the governmental interests served by the Act is the overwhelming public interest in prosecuting crimes accurately. [Citation.] A minimally intrusive methodology that can serve to avoid erroneous convictions and to bring to light and rectify erroneous convictions that have occurred manifestly serves a compelling public interest. We agree with the decisional authorities that have gone before and conclude that the balance must be struck in favor of the validity of the Act. (People v. Adams (2004) 115 Cal.App.4th 243, 257-258, (Adams).)

The Ninth Circuit agrees: In light of conditional releasees substantially diminished expectations of privacy, the minimal intrusion occasioned by blood sampling, and the overwhelming societal interests so clearly furthered by the collection of DNA information from convicted offenders, we must conclude that compulsory DNA profiling of qualified federal offenders is reasonable under the totality of the circumstances. Therefore, we today realign ourselves with every other state and federal appellate court to have considered these issues-squarely holding that the [DNA Analysis Backlog Elimination Act of 2000] satisfies the requirements of the Fourth Amendment. (U.S. v. Kincade (9th Cir. 2004) 379 F.3d 813, 839, fn. omitted.)

Defendant argues binding United States Supreme Court precedent . . . requires a special need beyond that of ordinary law enforcement in order to engage in a balancing of competing interests of the government and the person tested. This argument echoes the Adams defendantscontention the appellate court was required to identify a special needs beyond the normal need for law enforcement before undertaking a balancing analysis. (Adams, supra, 115 Cal.App.4th at p. 258.) The Court of Appeal rejected that assertion, explaining it overlooks the fact that the class of persons subject to the Act is convicted criminals, not the general population. As stated above, convicted criminals do not enjoy the same expectation of privacy that nonconvicts do. The cases on which defendant relies involved different populations of test subjects. [Indianapolis v. Edmund (2000) 531 U.S. 32,] 41, involved motorists being stopped at drug interdiction checkpoints for the primary purpose of uncovering evidence of criminal wrongdoing. Ferguson [v. Charleston (2001) 532 U.S. 67,] 77-78, involved state hospital obstetrics patients who had an expectation of privacy in their medical records and who were subjected to an invasion of privacy which was far more substantial than in the cases of other drug test subjects. (Ibid.) Here, defendants reliance on National Treasury Employees Union v. Von Raab (1989) 489 U.S. 656 to assert the necessity for a special needs analysis, is similarly misplaced, since that case involved employees of the United States Customs Service seeking transfer or promotion to certain positions. (Id. at p. 659.)

Finally, defendant argues a law requiring an invasion of a parolees or inmates Fourth Amendment rights must serve a legitimate penological interest, relying on Turner v. Safley (1987) 482 U.S. 78. But that case explained that when a prison on regulation impinges on inmates constitutional rights, the regulation is valid if it is reasonably related to legitimate penological interests. (Id. at p. 89, italics added.) We are not dealing here with a prison regulation.

DISPOSITION

The judgment is affirmed.

IKOLA, J.

WE CONCUR:

SILLS, P. J.

BEDSWORTH, J.

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[1] All statutory references are to the Penal Code.

[2] Former section 290.2 was repealed in 1988 and replaced by section 295 et seq., the DNA and Forensic Identification Database and Data Bank Act of 1998 (Act). ( 295; Stats. 1998, ch. 696,  2, p. 3719.)

[3] The brother was eliminated as a possible contributor to the D.N.A. detected on the inside of the glove.

[4] The Peoples opposition to the suppression motion alleged that in 1995, defendant was in prison serving a sentence for kidnapping, robbery, assault with a deadly weapon (firearm), and other felony counts.