P. v. Upshaw





















Filed 4/24/13 P. v. Upshaw CA2/3











NOT TO BE PUBLISHED IN THE
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opinion has not been certified for publication or ordered published for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



SECOND APPELLATE DISTRICT



DIVISION THREE




>

THE PEOPLE, Plaintiff and Respondent, v. EUGENE LEE UPSHAW, Defendant and Appellant.

B240541 (Los Angeles County Super. Ct. No. PA068215)

APPEAL
from a judgment of the Superior
Court of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Los Angeles
County,

Beverly R. O’Connell, Judge. Affirmed.

Vanessa Place, under appointment by the Court of Appeal,
for Defendant and Appellant.

Kamala
D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Linda C. Johnson and
Toni R. Johns Estaville, Deputy Attorneys General, for Plaintiff and
Respondent.



_________________________

Appellant
Eugene Lee Upshaw appeals from the judgment entered following his convictions
by jury on count 1 – kidnapping (Pen.
Code, § 207, subd. (a)), count 2 – kidnapping to commit href="http://www.mcmillanlaw.com/">oral copulation (Pen. Code, § 209, subd.
(b)(1)), count 3 – kidnapping to commit rape (Pen. Code, § 209, subd. (b)(1)),
count 4 – kidnapping to commit sodomy (Pen. Code, § 209, subd. (b)(1)), count 5
– forcible oral copulation (Pen. Code, § 288a, subd. (c)(2)), count 6 –
forcible rape (Pen. Code, § 261, subd. (a)(2)), two counts of forcible sodomy
(Pen. Code, § 286, subd. (c)(2); counts 7 & 9), and count 8 – assault by
means of force likely to produce great bodily injury (Pen. Code, § 245, subd.
(a)(1)), with findings as to counts 5, 6, 7, and 9 that appellant committed
aggravated kidnapping (Pen. Code, § 667.61, subd. (d)(2)), and a finding
appellant suffered a prior felony conviction (Pen. Code, § 667, subd.
(d)). The court sentenced appellant to
prison for life with the possibility of parole, plus 200 years to life, plus
eight years. We affirm the judgment.

FACTUAL SUMMARY

1. People’s
Evidence.

Viewed in accordance with the
usual rules on appeal (People v. Ochoa
(1993) 6 Cal.4th 1199, 1206), the evidence established that about 10:00
p.m. on August 20, 2009, Nicole B. (Nicole) was in her parked car in the
parking lot of a Castaic market. Nicole
was in the driver’s seat waiting for her sister. Nicole, using her cellphone, called her
sister to see where her sister was.
Appellant approached and asked for a ride down the street. Nicole, who had intended to buy alcohol,
agreed to give appellant a ride if he bought her alcohol. Appellant later entered the market and bought
Jack Daniels but Nicole subsequently said she did not drink Jack Daniels.

Appellant became angry, threw
Nicole to the front passenger seat, and sat in the driver’s seat. He cursed at her, called her degrading names,
and said he had spent $20 for alcohol and she was going to drink it. Appellant drove away with Nicole, yelling and
cursing at her. Appellant eventually
drove onto a deserted road and refused to let Nicole exit. Nicole slowly and unwillingly drank the
alcohol.

Appellant stopped the car and
forced Nicole to orally copulate him.
Appellant later grabbed her hair, stopped her, and exited. He went to the passenger side of the car,
opened the door, and pulled Nicole out by her hair. Nicole fell and appellant continued pulling
her hair, dragging her. Appellant threw
her against the front hood of the car, pulled her sweatpants off, and raped her
from behind. The two reentered the car,
she continued to drink unwillingly, and appellant continued driving down the
road.

Appellant stopped again and went
to Nicole’s side of the car. He pulled
her out, dragged her up a hill by her hair, and started choking her. Nicole thought she was going to die. Appellant forcibly sodomized her. The more she protested the rougher he was and
the harder he hit her. Nicole eventually
ran to the car and entered it, but appellant grabbed her feet and yanked her
out, causing her to slam her chin on the bottom of the car.

Appellant later drove Nicole for
perhaps five to ten minutes, then stopped.
Appellant grabbed her hair, picked her up, slammed her against the car,
and forcibly sodomized her for about ten minutes. The two reentered the car, appellant drove her
to a location near the market, and left.
The entire attack lasted two to three hours.

Nicole testified she had bald
patches on her head where appellant had yanked hair out. Appellant gave her a black eye, she had very
painful injuries to her chin which took a long time to heal, and she had
scrapes and large cuts with scarring on her back. Nicole also had injuries to her left shoulder
and arm, bruises to her hips, and multiple bruises and scratches on her thighs
and legs. Photographs taken at the
hospital and admitted into evidence depicted injuries appellant inflicted upon
Nicole.

Maira Ontiveros,
the daughter of the market’s owner, testified that shortly before 10:00 p.m. on
August 20, 2009, she sold alcohol to a man, and later saw the man enter a car,
sit in the driver’s seat, and drive away.
A market surveillance video, admitted into evidence, depicted the
man. Los Angeles County Sheriff’s
Detective David Campbell, the investigating officer in this case, testified
Ontiveros told him that after the man exited the market, she saw the man push a
woman from the driver’s seat onto the passenger’s seat, then sit in the
driver’s seat himself. Campbell showed
the video to Nicole, who identified appellant as the man. Campbell denied there was any evidence that
Nicole was a prostitute.

Kathy Adams, a registered nurse,
a sexual assault nurse examiner, and the director of the center of assault
treatment services at Northridge Hospital, testified as follows. About 12:30 p.m. on August 21, 2009, Nicole
arrived at the hospital. Adams examined
her and saw her numerous injuries. Adams
had overseen 11,000 sexual examinations, had reviewed about half of those, and
personally had conducted 1,000 sexual examinations. Adams had rarely seen a person with as many
injuries as Nicole. Adams testified
Nicole was “pretty shaky” during the examination. The most significant injury in Nicole’s
anal-genital area was the anal swelling. Nicole’s anal area was very
tender and there was a slight tear on her anus.
Adams collected swabs from Nicole’s vagina and anus.

Jill Licht, a senior criminalist
for the Los Angeles County Sheriff’s Department, testified she collected
possible semen from the front passenger seat of the car. Campbell testified as follows. In May 2010, Campbell first learned the
suspect’s name when a DNA database matched DNA obtained from Nicole’s anal area
to appellant. Appellant was in Missouri
and was there in August 2010. On
September 16, 2010, Campbell extradited appellant here from New York and
interviewed him. Appellant told Campbell
that appellant and Nicole had sex and oral sex.
Campbell noticed that appellant had cut his hair and had lost
weight. Following appellant’s arrest,
Campbell took a buccal swab from appellant.

Appellant’s DNA was found in the
vaginal and anal samples taken from Nicole and in the semen sample collected
from the front passenger seat. (We later
discuss the DNA evidence.)

2. Defense
Evidence.

In defense, appellant testified
as follows. Appellant met Mike at a
nearby bar. Appellant previously had not
known Mike. About 9:30 p.m., Mike left
the bar. Nicole drove up and Nicole and
Mike conversed. Mike later asked
appellant if appellant wanted to do something later, but appellant replied that
appellant had to stay in the area. Mike
said, “we are just going to go somewhere like a hotel.” Mike said he would talk to “this person” and
see what could be arranged. Mike later
told appellant that Mike was going to Mike’s truck to get something. Appellant asked if appellant needed to buy
something, Mike replied yes, and Mike asked appellant if appellant had
money. Appellant indicated he did not,
so Mike gave appellant $50 and left.

As appellant was entering the
market, Nicole motioned appellant to approach her. Nicole asked appellant who he was and said
appellant had been talking with Nicole’s friend. Appellant explained he had been drinking with
Mike all day.

Nicole asked appellant if he
wanted a date. Appellant believed Nicole
was a prostitute and told her that he did not have enough money. Appellant entered the market and bought Jack
Daniels. Nicole later invited him to sit
in her car while they waited for Mike.
Appellant sat in the front passenger seat, and Nicole sat in the driver’s
seat. After Mike returned and entered
the car, the three were getting ready to leave, she pulled out, but Mike
changed his mind and exited.

Appellant indicated he wanted to
exit but Nicole told him that they could “hang out.” Nicole drove appellant to a motel parking lot
and parked. Nicole climbed over the
car’s console, sat on top of appellant, and, about 12:30 a.m., the two had
sex. The two remained in the car in the
lot for about two-and-a-half hours.
Appellant denied driving Nicole into the desert and denied dragging her
from an automobile. He denied striking
her, raping her, forcing her to orally copulate him, or forcing her to have
sex.

Later, Nicole, who had been
drinking, told appellant to drive.
Appellant drove Nicole back to the truck stop, appellant told her that
he was going to leave, but Nicole pleaded with him to stay. Appellant agreed and, about 2:00 a.m., Nicole
drove appellant back to the motel parking lot.
While there, the two argued because Nicole would not give the Jack Daniels
to appellant. Appellant testified “it
kind of escalated to kind of like a little fight or whatever” but later
testified neither of them hit the other.
Appellant later left.

Appellant initially told Campbell
that appellant blacked out and remembered nothing, later told Campbell that
appellant remembered some things, and eventually told Campbell that appellant
remembered having sex with Nicole.
Appellant testified he was a “little buzzed” when he had sex with Nicole
but towards the end of the evening he drank more and was on the verge of
blacking out. Appellant admitted he had
suffered a 1991 arrest “for the rape and sodomy of a female” in New Mexico and
a 1995 Texas conviction for felony house burglary.

ISSUES

Appellant claims (1) the trial
court violated his federal right to confrontation by admitting testimony based
on a nontestifying declarant’s DNA analysis report and (2) the trial court
erroneously failed to exclude, pursuant to Evidence Code section 352, evidence
of appellant’s arrest for rape and sodomy.

DISCUSSION

1. No
Confrontation Error Occurred.

a. Pertinent
Facts.

During trial, Learden Matthies
testified on direct examination by the People as follows. Matthies was a supervising criminalist at the
Los Angeles County Sheriff’s Department crime laboratory in the forensic
biology section. That section focused on
DNA. Matthies had worked for the
department for 13 years and was in that section the entire time. Matthies supervised eight criminalists. Her duties included collecting and preserving
physical evidence at crime scenes. In
the laboratory, she analyzed that evidence for the presence of biological
fluids such as semen and performed DNA typing on them. Criminalists would take a forensic sample of
fluids from the crime scene or victim, generate a DNA profile from the sample,
and compare it to the DNA profile of a sample taken from a suspect to see if
the samples matched. Criminalists also
determined statistically how rare or common a profile was. Matthies had testified as an expert in Los
Angeles County probably between 40 and 50 times, mostly concerning DNA.

Matthies performed a technical
review of the DNA analysis performed by criminalist Susan Sherman. Her report was dated September 14, 2011. To perform a technical review, a criminalist
reviewed all paperwork in the case file.
The file contained all notes and procedures used during testing and
contained the primary analyst’s report.
The reviewer also examined the actual DNA profiles a second time. Reviewers conducted an independent analysis
of the profiles to see if the reviewers agreed with the conclusion of the
primary analyst as reflected in the latter’s report.

Matthies further testified as
follows. Vaginal and anal samples were
collected from Nicole, a sperm sample was collected from the vehicle, and a
buccal swab was taken from appellant.
The vaginal and anal samples, and the sample from the vehicle, contained
sperm the DNA profile of which matched appellant’s profile. The probability a person other than appellant
had that DNA profile was one in ten quintillion.

During cross-examination,
Matthies testified as follows. Sherman,
not Matthies, performed the DNA analysis on the above discussed samples. Sherman previously had worked for the
sheriff’s department. Matthies’s
testimony was based on Sherman’s records.
During redirect examination, Matthies testified that, as part of her
duties as supervisor, she technically reviewed Sherman’s work. When Matthies reviewed the work, she reviewed
all of the notes in the file that were used to generate the report. She then looked at the DNA profiles, which
were generated by specialized software, and she made the same comparisons and
read Sherman’s conclusions to verify that Matthies agreed with them. Matthies agreed with Sherman’s conclusions in
this case.

Sherman’s documentary report was
not admitted into evidence. Sherman did
not testify at trial.

b. >Analysis.

Appellant claims the trial court violated his right to
confrontation by admitting Matthies’s testimony based on the report of Sherman,
who did not testify. We conclude
otherwise.

(1) Applicable
Law.

In People v. Lopez (2012) 55 Cal.4th 569 (Lopez), our Supreme Court summarized Crawford v. Washington (2004) 541 U.S. 36 [158 L.Ed.2d 177] (>Crawford) and its progeny from the high
court. Lopez stated Crawford
“created a general rule that the prosecution may not rely on ‘testimonial’
out-of-court statements unless the witness is unavailable to testify and the
defendant had a prior opportunity for cross-examination.” (Lopez,
at p. 576, quoting Crawford.) Lopez
stated, “Although the high court in Crawford
did not define the term ‘testimonial,’ it made these observations: ‘[T]he Confrontation Clause . . .
applies to “witnesses” against the accused—in other words, those who “bear
testimony.” [Citation.] “Testimony,” in turn, is typically “[a]
solemn declaration or affirmation made for the purpose of establishing or
proving some fact.” [Citation.] An accuser who makes a formal statement to
government officers bears testimony in a sense that a person who makes a casual
remark to an acquaintance does not. . . .’
[Citation.]” (>Ibid.)href="#_ftn1" name="_ftnref1" title="">[1]

“In [Melendez-Diaz v. Massachusetts (2009) 557 U.S. 305 [174 L.Ed.2d
314] (Melendez-Diaz)], the defendant
was charged . . . with cocaine distribution and trafficking.” (Lopez,
supra, 55 Cal.4th at p. 577.) “[T]he
prosecution introduced into evidence three
‘ “certificates of analysis” ’ [citation], each prepared by a
laboratory analyst and sworn before a
notary public; these laboratory certificates stated that a substance found
in plastic bags in the defendant’s car was determined to be cocaine. The defendant was convicted of the
charges.” (Ibid., italics added.)

In a five-to-four decision, the
high court “held that the laboratory certificates in Melendez-Diaz fell ‘within the “core class of testimonial
statements” ’ [citation], and thus were inadmissible under >Crawford, . . . The court observed that each certificate was
(1) ‘a “ ‘solemn declaration or affirmation made for the purpose of
establishing or proving some fact’ ” ’ [citation], (2) ‘functionally
identical to live, in-court testimony’ [citation], (3) ‘ “ ‘made
under circumstances which would lead an objective witness reasonably to believe
that [it] would be available for use at a later trial’ ” ’
[citation], and (4) created ‘to provide “prima facie evidence of the
composition, quality, and the net weight” ’ . . . of the substance found
in the plastic bags seized from the defendant’s car.” (Lopez,
supra, 55 Cal.4th at
p. 577.)

In Bullcoming v. New Mexico
(2011) 564 U.S. ___ [180 L.Ed.2d 610] (Bullcoming),
a New Mexico defendant was charged with driving while intoxicated. (Lopez,
supra, 55 Cal.4th at p. 578.) “[T]he prosecution introduced at trial a
laboratory analyst’s certificate stating that a blood sample taken from the
defendant shortly after his arrest contained an illegally high level of
alcohol. That analyst did not
testify. Instead, the prosecution called
as a witness another analyst who had ‘neither participated in nor observed the
testing.’ [Citation.]” (Ibid.)

In a five-to-four decision, the
high court in Bullcoming said “the
certificate was ‘ “formalized” in a
signed document’ that made reference to New Mexico court rules providing ‘for
the admission of certified blood-alcohol analyses.’ [Citation.]
These ‘formalities’ [citation] were, in the court’s view, ‘more than
adequate’ (ibid.) to qualify the
laboratory certificate in Bullcoming
as testimonial, and hence inadmissible.
The high court in Bullcoming
concluded: ‘Because the New Mexico
Supreme Court permitted the testimonial statement of one witness [(the
laboratory analyst who tested the defendant’s blood sample)] through the
in-court testimony of a second person [(the expert familiar with the
laboratory’s testing procedures)] we reverse that court’s judgment.’ [Citation.]”
(Lopez, supra, 55 Cal.4th at p. 578, italics added.)href="#_ftn2" name="_ftnref2" title="">[2]

In Williams v. Illinois (2012) 567 U.S. ___ [183 L.Ed.2d 89] (>Williams) (decided in June 2012),
vaginal swabs from a rape victim contained semen, and the swabs were sent to a
Cellmark laboratory in Maryland.
Illinois State Police (ISP) forensic biologist Sandra Lambatos testified
Cellmark analysts tested the swabs, derived a DNA profile of the man whose
semen was on the swabs, and produced a laboratory report containing that
profile. Lambatos also testified that in
her expert opinion, that profile matched the DNA profile which the ISP
laboratory had derived from a sample of the defendant’s blood. The report was not admitted into evidence and no Cellmark analyst
testified. The defendant was
convicted. (Lopez, supra, 55 Cal.4th
at pp. 578-579.) Illinois courts
had stated Lambatos’s expert testimony about the report was not offered for the
truth of the matter asserted in the report, but only to explain the basis of
her expert opinion that the DNA profiles matched. (Id.
at p. 579.)

In Williams, there was no majority opinion but five justices concluded
Lambatos’s testimony did not violate the defendant’s right to
confrontation. (Lopez, supra, 55 Cal.4th at p. 579.) In a plurality opinion, four of the five
justices reached that conclusion by applying the rule that “ ‘Out-of-court
statements that are related by the expert solely for the purpose of explaining
the assumptions on which that opinion rests are not offered for their truth and
thus fall outside the scope of the Confrontation Clause.’ ” (Lopez,
at p. 579, quoting Williams,
supra, 567 U.S. at p. __ [183 L.Ed.2d at p. 99] (plur. opn. of Alito, J.);
see fn. 2, ante.)href="#_ftn3" name="_ftnref3" title="">[3]

In a separate opinion, Justice
Thomas concurred in the judgment solely because, in his view, Cellmark’s
statements lacked the requisite formality and solemnity to be considered
testimonial. (Lopez, supra, 55 Cal.4th
at p. 580.) Justice Thomas later stated,
“I conclude that Cellmark’s report is not a statement by a ‘witnes[s]’ within
the meaning of the Confrontation Clause.
The Cellmark report lacks the solemnity of an affidavit or deposition,
for it is neither a sworn nor a certified
declaration of fact. Nowhere does the
report attest that its statements accurately reflect the DNA testing processes
used or the results obtained. . . .
The report is signed by two ‘reviewers,’ but they neither purport to
have performed the DNA testing nor certify the accuracy of those who did. . .
. And, although the report was produced
at the request of law enforcement, it was not the product of any sort of
formalized dialogue resembling custodial interrogation.” (Williams,
supra, 567 U.S. at p. ___ [183
L.Ed.2d at pp. 133-134] (conc. opn. of Thomas, J.), italics added.)

Finally, in Lopez (decided in October 2012), the defendant was charged with
vehicular manslaughter while intoxicated and, to prove her intoxication, the
People introduced into evidence a report of laboratory analyst Pena reflecting
the percentage of alcohol in a blood sample taken from the defendant two hours
after the accident. Pena did not
testify, but a colleague and expert witness, Willey, did. A jury convicted the defendant. (Lopez,
supra, 55 Cal.4th. at p. 573.) Lopez
concluded that “the critical portions of that report were not made with the
requisite degree of formality or solemnity to be considered testimonial.” (Id.
at p. 582.)

The last five pages of the
six-page report in Lopez consisted of
printouts of data from a gas chromatograph which measured calibrations, quality
control, and the concentration of alcohol in a blood sample. (Lopez,
supra, 55 Cal.4th. at p. 583.) Lopez
concluded that since that machine could not be cross-examined, introduction of
the printouts into evidence was not confrontation error. (Ibid.)

The first page of the six-page
report contained a notation from a nontestifying laboratory assistant,
Constantino, that the defendant’s blood was labeled with a particular
laboratory number. There was no dispute
that that notation was admitted for its truth.
The first page also contained notations from Pena indicating he had
analyzed the blood and determined the defendant’s blood sample had a
blood-alcohol concentration of .09 percent. Based on Constantino’s labeling and the above
printouts, Willey independently opined at trial that the defendant’s blood
contained .09 percent alcohol. (>Lopez, supra, 55 Cal.4th at
pp. 584-585.)

Lopez stated, “The notation in question does not meet the high
court’s requirement that to be testimonial the out-of-court statement must have
been made with formality or solemnity.
[Citations.] Although here
laboratory analyst Pena’s initials appear on the same line that shows
defendant’s name and laboratory assistant Constantino’s initials appear at the
top of the page to indicate that he entered the notation that defendant’s blood
sample was given laboratory No. 070-7737, neither
Constantino nor Pena signed, certified, or swore to the truth of the contents
of page 1 of the report. The chart
shows only numbers, abbreviations, and one-word entries under specified
headings. Thus, the notation on the
chart linking defendant’s name to blood sample No. 070-7737 is nothing more
than an informal record of data for internal
purposes, as is indicated by the small printed statement near the top of
the chart: ‘for lab use only.’ Such a notation, in our view, is not prepared
with the formality required by the high court for testimonial statements.” (Lopez,
supra, 55 Cal.4th at p. 584; italics
added, some capitalization omitted.)

Lopez concluded the trial court correctly introduced into evidence
that portion of the first page of the report reflecting Constantino’s notation
linking the defendant’s name to the laboratory number given to the blood
sample, and correctly permitted Willey to testify regarding it. (Lopez,
supra, 55 Cal.4th at p. 585.) >Lopez did not conclude that that portion
of the first page reflecting Pena’s analysis of the blood sample was properly
admitted into evidence, but Lopez did
say, “To the extent that any other notations on the first page of the chart
could be considered testimonial, their admission was harmless ‘ “beyond a
reasonable doubt” ’ [citation], in light of prosecution witness Willey’s
independent opinion . . . that defendant’s blood sample contained a
blood-alcohol concentration of 0.09 percent.”
(Ibid.)

(2) Application
of the Law to this Case.

Appellant waived the issue of
whether Matthies’s testimony based on Sherman’s report was inadmissible under
the confrontation clause because appellant failed to object to that
testimony. (Cf. >People v. Alvarez (1996) 14 Cal.4th 155, 186.)href="#_ftn4" name="_ftnref4" title="">[4]

As to the merits, first,
Matthies’s testimony, fairly understood, was to the effect that her direct
examination testimony pertaining to (1) the vaginal and anal samples from
Nicole, (2) the sperm sample collected from the vehicle, (3) the swab
taken from appellant, (4) the fact appellant’s DNA was found in the
samples, and (5) the statistical improbability that that DNA could have
belonged to someone else, was based on Sherman’s report. However, no evidence was presented that
Sherman’s report was signed, certified, or sworn. To the extent the report reflects vaginal and
anal samples were taken from Nicole and the sperm sample was collected from the
vehicle, the record fails to reflect that the report was anything other than an
informal record of information for internal purposes. Matthies’s testimony about that portion of
the report was not confrontation error, because the record fails to demonstrate
that that portion of the report was made with the requisite formality or
solemnity. (Cf. Lopez, supra,
55 Cal.4th at pp. 584-585.)

Second, in Williams, the high court concluded no confrontation error
occurred. Four justices reasoned that
extrajudicial statements related by an expert solely to explain assumptions on
which the expert’s opinion is based are nonhearsay beyond the scope of the
confrontation clause, and that the statements in the report at issue in >Williams were such extrajudicial
statements. Justice Thomas reasoned the
report was not a statement of a “witnes[s]” within the meaning of the
confrontation clause because the report was neither a sworn nor certified
declaration of fact, and the report nowhere attested that its statements
accurately reflected DNA testing processes used or the results obtained. The reasoning of the four justices and the
reasoning of Justice Thomas apply in the present case; therefore, Matthies’s
testimony did not violate the confrontation clause.href="#_ftn5" name="_ftnref5" title="">[5]

Third, Matthies’s testimony did
not constitute confrontation error in light of the California appellate court
cases concluding extrajudicial statements reasonably relied upon as a basis for
expert opinion testimony are nonhearsay that does not violate the confrontation
clause, a conclusion applicable here.
(Cf. Cooper, >supra, 148 Cal.App.4th at
p. 747; Thomas, >supra, 130 Cal.App.4th at p.
1209-1210; see fn. 2, ante.)href="#_ftn6" name="_ftnref6" title="">[6]

Finally, even if Matthies’s
challenged testimony violated the confrontation clause, it does not follow that
we must reverse the judgment. Matthies’s
testimony indicated Sherman’s report reflected (1) appellant’s DNA (collected
from a swab taken from him) was found in the vaginal and anal samples taken
from Nicole and in the sperm sample collected from the vehicle and (2) the
statistical improbability that that DNA could have belonged to someone
else. That testimony went to the issue
that appellant had vaginal and anal intercourse with Nicole. However, appellant himself testified Nicole
sat on top of him and the two had sex.
Matthies provided her independent expert testimony that, during her
technical review of Sherman’s work, Matthies compared the DNA profiles and
agreed with Sherman’s conclusions.
Moreover, independent of Sherman’s report, there was substantial and
uncontradicted evidence that on August 20, 2009, Nicole was the victim of a
violent physical attack resulting in numerous injuries all over her body and
her anus was injured.

Further, the testimony of Ontiveros
and the video corroborated Nicole’s testimony that after appellant bought
liquor from the liquor store, he entered the vehicle, pushed Nicole into the
passenger’s seat, and drove away. Nicole
testified appellant was the person who drove her away and committed the
offenses. In light of all of the
evidence of appellant’s guilt in this case, the alleged confrontation error
concerning the DNA evidence was harmless beyond a reasonable doubt. (Cf. Lopez,
supra, 55 Cal.4th at p. 585.)

2. The
Court Did Not Prejudicially Err by Failing to Exclude Evidence of Appellant’s
Arrest for Rape and Sodomy.

a. Pertinent
Facts.

The prosecutor advised the court
that if appellant testified, the prosecutor wanted to impeach appellant with
evidence he had been arrested for raping his half-sister. Appellant’s counsel said he did not want that
“because we think that’s really bad for our case” and the evidence was
irrelevant. The court ruled the prosecutor
could impeach appellant with evidence that he had suffered a 1991 arrest for
rape, and sodomy of a female, and the court stated it would give a limiting
instruction.

As indicated, appellant testified
he suffered a 1991 arrest “for the rape and sodomy of a female” and a 1995
Texas conviction for felony house burglary.
During its final charge, the court, using a modified CALCRIM No. 303,
stated, “During the trial, evidence of defendant’s conviction for burglary and
arrest for rape and sodomy were [sic]
admitted for the limited purpose of assessing defendant’s credibility. You may consider that evidence only for that
purpose and for no other.”

b. Analysis.

Appellant claims the trial court
erroneously failed to exclude, pursuant to Evidence Code section 352, evidence
of appellant’s arrest for rape, and sodomy of a female. Appellant waived the issue by failing to
object on that ground. (Cf. >People v. Clark (1992) 3 Cal.4th 41, 125-126; Evid. Code, § 353.) As to the merits, “it is established that
evidence of mere arrests is inadmissible because it is more prejudicial than probative. (People
v. Anderson [(1978) 20 Cal.3d 647,] 650–651; cf. People v. Medina (1995)
11 Cal.4th 694, 769 [Medina].)” (People
v. Lopez (2005) 129 Cal.App.4th 1508, 1523.) A witness’s credibility is seriously impaired
by evidence of a defendant’s prior arrests, because such evidence inevitably
suggests the defendant’s bad character.
(Ibid.) We assume without deciding the challenged
testimony was inadmissible.href="#_ftn7"
name="_ftnref7" title="">[7]

However, even if the challenged
testimony was inadmissible, it does not follow we must reverse the
judgment. The jury heard appellant’s
testimony that the arrest occurred fully 18 years before the present
offenses. The facts of the present
offenses were far more incriminating than any suggested by appellant’s brief
allusion to his arrest. The prosecutor
properly impeached appellant with his burglary conviction; therefore, “the jury
would not have needed to rely on mere arrests in evaluating the credibility” (>Monterroso, supra, 34 Cal.4th at
p. 778) of appellant. The gist of
our rationale as to why any confrontation error was not prejudicial applies
here. The court instructed the jury to
consider the arrest evidence only on the issue of credibility, and we presume
the jury followed that instruction.
(Cf. People v. >Sanchez (2001) 26 Cal.4th 834,
852.) There is no need to reverse the
judgment because it is not reasonably probable appellant would not have been
convicted of the present offenses absent the alleged error.

(Cf. >People v. Watson (1956) 46 Cal.2d 818,
836.)

DISPOSITION

The judgment is affirmed.

NOT TO BE
PUBLISHED IN THE OFFICIAL REPORTS











KITCHING,
J.



We concur:











KLEIN, P. J.











CROSKEY, J.