P. v. Lee
Filed 9/19/13 P. v. Lee CA2/2
California Rules of Court, rule 8.1115(a), prohibits courts
and parties from citing or relying on opinions not certified for publication or
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IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND
APPELLATE DISTRICT
DIVISION
TWO
THE PEOPLE,
Plaintiff and Respondent,
v.
ROBERT CHARLES LEE,
Defendant and Appellant.
B240618
(Los Angeles
County
Super. Ct.
No. YA065284)
APPEAL from
a judgment of the Superior Court
of
County. Larry P.
Fidler, Judge. Affirmed as modified.
John Steinberg, 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, Kenneth C. Byrne and William N. Frank, Deputy Attorneys
General, for Plaintiff and Respondent.
* * * * * *
Robert Charles Lee (appellant) was
convicted by jury of 35 counts in connection with attacks on 10 women over a
period of nearly nine years. He was
sentenced to multiple life terms and a separate aggregate determinate term in
state prison. On appeal, he claims the
trial court erred in imposing multiple consecutive indeterminate terms of 25 years
to life in violation of the Penal Code section 667.61
multiple sexual offenses committed against the same victim on a single
occasion. He also contends his
Amendment to the United States Constitution were violated by his inability to
confront and cross-examine witnesses who performed genetic testing, and that
the evidence on certain counts was legally insufficient to sustain conviction.
We agree that the trial court’s
imposition of a life sentence for each
pre-September 20, 2006 sexual offense committed by appellant against the
same victim on a single occasion was unauthorized. We reject appellant’s other contentions. We use our discretion to modify the judgment
and otherwise affirm.
PROCEDURAL
AND FACTUAL BACKGROUND
convicted of the following offenses: (1)
Q. M.—forcible oral copulation and forcible rape (§§ 288a, subd. (c)(2) &
261, subd. (a)(2)) (counts 1 and 3); (2) Dorothy M.—forcible rape and
first degree burglary (§§ 261, subd. (a)(2) & 459) (counts 9 and 12); (3)
Rose B.—forcible sodomy, forcible rape, two counts of forcible sexual
penetration, two counts of forcible oral copulation, and first degree burglary
(§§ 286, subd. (c)(2), 261, subd. (a)(2), 289, subd. (a)(1), 288a, subd. (c)(2)
& 459) (counts 13–18, and 20); (4) Claudia C.—two counts of forcible oral
copulation (§ 288a, subd. (c)(2)) (counts 22 and 23); (5) Toni F.—four counts
of forcible oral copulation, three counts of forcible rape, and forcible sexual
penetration (§§ 288a, subd. (c)(2), 261, subd. (a)(2), & 289, subd.
(a)(1)) (counts 25, 26, 28, 30, and 32–35); (6) J. S.—two counts of forcible
oral copulation, forcible rape, and first degree burglary (§§ 288a, subd.
(c)(2), 261, subd. (a)(2) & 459) (counts 38, 39, 41, and 44);
(7) Helen C.—forcible rape and first degree burglary (§§ 261, subd. (a)(2)
& 459) (counts 45 and 48); (8) Kathy S.—assault with intent to commit
a felony and first degree burglary (§§ 220 & 459) (counts 49–50); (9)
Janice C.—forcible sexual penetration, forcible oral copulation, and first
degree burglary (§§ 289, subd. (a)(1), 288a, subd. (c)(2) & 459)
(counts 51–53); and (10) Lisa L.—forcible rape, forcible sodomy, and forcible
oral copulation (§§ 261, subd. (a)(2), 286, subd. (c)(2) & 288a, subd.
(c)(2)) (counts 54–56).
found to be true the following allegations:
(1) that appellant committed the offenses during a
the meaning of section 667.61, subdivisions (a) and (d) (counts 1, 3, 9, 13–18,
22–23, 25–26, 28, 30, 32–35, 38–39, 41, 45, 51–52, and 54–56); (2) appellant
personally used a deadly or dangerous weapon and committed sexual offenses
against more than one victim within the meaning of section 667.61, subdivisions
(a) and (e) (counts 1, 3, 22–23, 38–39, and 41); (3) appellant personally used
a deadly or dangerous weapon within the meaning of section 667.61, subdivisions
(b) and (e) (counts 9, 13–18, 25–26, 28, 30, 32–35, 45, 51–52, and 54–56); (4)
appellant committed sexual offenses against more than one victim within the
meaning of section 667.61, subdivisions (b) and (e) (counts 9, and 54–56); (5) appellant
committed the offenses during a burglary within the meaning of
section 667.61, subdivisions (b) and (e) (counts 54–56); (5) appellant
used a knife within the meaning of section 12022.3, subdivision (a) (counts 1,
3, and 22–23); and (6) appellant used a screwdriver within the meaning of
section 12022.3, subdivision (a) (counts 38–39, 41, and 44).
Appellant admitted one prior serious
felony conviction (§ 667, subd. (a)(1)) and one prior conviction (strike)
within the meaning of California’s “Three Strikes†law. (§§ 1170.12, subds. (a)–(d), 667, subds.
(b)–(i).)
Appellant was sentenced to a term of
750 years to life plus 14 years and eight months in state prison, calculated as
follows: on count 49, a principal term
of 12 years (upper term of six years, doubled pursuant to the Three Strikes
law); on count 50, a consecutive subordinate term of two years and eight months
(one-third the midterm of four years, doubled); 26 indeterminate terms of 25
years to life to run consecutively to each other after service of the aggregate
determinate term on counts 1, 3, 9, 13–18, 22–23, 25–26, 28, 30, 32–35, 38–39,
41, 45, and 54–56; and, two consecutive terms of 50 years to life (25
years to life doubled pursuant to the Three Strikes law) on counts 51 and
52. The court imposed and stayed
sentences on counts 12, 20, 44, 48, and 53, pursuant to section 654. Appellant was awarded 2,444 days of
presentence credit consisting of 2,126 days of actual
credit.
2. Prosecution evidence
On April 11,
2001, at approximately 2:25 a.m., Toni F. was asleep alone in her home when she
heard a noise and awoke to find the shadowy figure of a man leaning over
her. Appellant pushed her back down on
the bed and pulled her clothes off.
Appellant put his mouth on her vagina and then put his penis in her
mouth. He then put his penis in her
vagina and fondled and sucked her breasts.
He put his mouth on her vagina a second time and proceeded to put his
penis in her vagina again. Appellant
wore black clothing, including a black sweater, ski mask, and gloves. He called Toni F. “little esse†and told her
not to call the police.
On August 1,
2001, at approximately 3:50 a.m., Toni F. was watching television in her home
when she was attacked by appellant.
Appellant put his penis in Toni F.’s mouth and ejaculated. He inserted his fingers in her vagina, put
his mouth on her vagina, and then raped her.
He used the same Spanish phrase Toni F. heard during the previous
attack. Appellant left when Toni F.’s
neighbor came to check on her. Toni F.
called the police and told them she had been attacked by the same man that
raped her on April 11, 2001.
name="_ftnref3" title="">[3]
A male DNA profile
was developed from a swab of Toni F.’s right breast obtained on April 11,
2001. A DNA saliva reference sample was
obtained from appellant following his arrest in connection with a residential
burglary on October 5, 2005. A DNA
profile was developed from appellant’s saliva reference. The two profiles matched with a random match
probability of one in 10 quadrillion.
A male DNA profile developed from a swab of Toni F.’s mouth collected
August 1, 2001, matched appellant’s reference profile with a random match
probability of one in 326 billion.
On April 25,
2001, Q. M. was asleep alone in her apartment.
At approximately 5:00 a.m. she was awakened by appellant standing next
to her bed. Appellant pressed his
exposed penis against Q. M.’s face and told her to “suck it†or he would kill
her. Appellant did not have an erection
but kept trying to force his penis into her mouth. At some point his penis went inside Q. M.’s
mouth but “it did not go inside [her] mouth completely.†She tried to fight him off but appellant
climbed on top of her. He positioned
himself with his head near her thighs and tried to pry her legs apart with his
hands. He licked her thighs and when he
forced her legs apart he licked her “private area.â€
Appellant
questioned Q. M. about a house arrest bracelet she wore on her leg. He changed position so that he was now face
to face with her but still holding her down.
Appellant prodded Q. M. in the side with a sharp object that felt to her
like either a knife, a screwdriver, or a pair of scissors. He tried to put his semi-erect penis into her
vagina and was only able to penetrate the upper portion of her vaginal
lips. Appellant was able to get his
penis “halfway†inside Q. M.’s vagina.
Q. M. was scared of
appellant and told him she would comply if he would go to the bathroom and get
a condom. As appellant returned from the
bathroom, a box that was attached to Q. M.’s house arrest ankle bracelet rang,
and then immediately afterwards the telephone rang. She told him she had to answer it because it
was the police. Appellant pulled the
telephone out of the wall, asked her where she kept her money, and then left.
DNA from a swab
of Q. M.’s right thigh obtained after the April 24, 2001 sexual assault matched
appellant’s genetic profile. The random
match probability was one in 10 quadrillion.
On June 9,
2005, at
approximately 3:30 a.m., Dorothy M. was asleep alone in her home when she heard
her window blinds moving. She was
“dumbfounded†when a few minutes later appellant got on top of her in her
bed. Appellant put his hands around
Dorothy M.’s throat and began to strangle her.
Appellant said “I know you, Dorothy,†and when she tried to talk he told
her “Callate I kill you.â€
Appellant stood
up, unzipped his pants, placed Dorothy M.’s hand on his penis, and told her to
hold it. He then kissed Dorothy M.’s
right breast nipple, and got on top of her.
Appellant tried to have intercourse with her but she squirmed. He was able to get his penis “a little bitâ€
into her vagina.
During the
struggle, Dorothy M. suffered an injury to her right arm which was “very
painful and very hot.†She felt
appellant “mark†her and subsequently saw a “moon shape[d]†wound to her arm. Appellant threw Dorothy M. a towel and
left. The wound bled significantly on
the bed before she got up to wash it. A
sexual assault examination of Dorothy M. was performed by Toyetta Beukes, a
registered nurse and forensic nurse examiner, who had specific training in
identifying injuries caused by various types of weapons. Beukes testified the incised wound on Dorothy
M.’s right arm was consistent with a knife or trauma from a weapon because of
the fine edges of the wound.
DNA from a swab
of the right breast of Dorothy M. obtained after the June 9, 2005 sexual
assault, matched appellant’s genetic profile.
The random match probability was one in 13 quadrillion.
On February 27,
2006, at approximately 2:53 a.m., Helen C. was awakened by “two hands around
[her] throat squeezing so tight [she] thought it was the last breath [she] was
gonna take.†She felt the weight of a
body on top of her and heard a male voice say “If you see me, I’ll kill
you.†Appellant asked for money and then
left. Helen C. felt wet in her
vaginal area and discovered her vagina was bleeding. She had not felt any penetration because she
had been in shock and her body was numb.
DNA from a swab
of blood obtained from Helen C.’s bedspread, after the February 27, 2006 sexual
assault, matched appellant’s genetic profile.
The random match probability was one in one trillion.
On June
15, 2006, at
approximately 3:25 a.m., Janice C. was asleep alone in her home. Her son Josh, who lived with her, was at
work. She woke up to discover someone
was suffocating her with a pillow. She
began to scream and heard a voice say “callate, callate.†She tried to push away from appellant but he
pulled her towards him and put his fingers inside her vagina. She continued to scream while appellant
licked her vagina. Janice C. could feel
a sharp object on the side of her temple and appellant jabbed her with it while
sexually assaulting her.
Josh entered the
house and turned on the lights. He heard
voices and the sound of a struggle.
Janice C. told him to call the police.
She could see appellant had long curly hair and was wearing a dark
sweatshirt with a hood. In court, Janice
C. testified that appellant’s eyes “absolutely†reminded her of the man who
assaulted her because she could “never forget†the eyes.
Josh called the
police on his cell phone. Appellant
walked right up to him and paused for a second.
Josh froze. He followed appellant
out the door and into the parking lot, where appellant got into a black car and
drove away. On July 17, 2006, Josh
identified a photo of appellant from a six-pack of mug shots shown to him.
DNA from a swab
of Janice C.’s vulva obtained after the June 15, 2006 sexual assault matched
appellant’s genetic profile. The random
match probability was one in 80 million.
3. Defense
evidence
Appellant
testified in his own behalf and stated he knew some words in Spanish, including
that “callate†meant “be quiet.†He went
out late at night, up to three times a week, to visit “different girls’
houses.†He was active in martial arts
and often wore black pants. He bought a
“ninja†outfit in 2001, but only wore it one time on Halloween. He did not have scratches on his face in 2001
but sometimes got injured while practicing martial arts.
Appellant
owned a black car and sometimes used gloves to change the tires. He kept screwdrivers, a flashlight, black
gloves and latex gloves, a black hooded sweatshirt, a couple of knives, and
scissors in his car. Appellant admitted
that he spent a few hours near Helga K.’s mobile home on October 5, 2005 and
tried to break into it while wearing a black hooded sweatshirt.
victims and stated it was not his DNA.
Dr.
Laurence Mueller, a professor at the University of California at Irvine,
testified for the defense as a DNA expert.
He cited studies that called into question the accuracy of statistical
calculations used in DNA laboratories.
He disagreed with the random match probability calculations of the
prosecution’s experts, but conceded that random match probability was
appropriate to use in this case.
DISCUSSION
I. Appellant’s Multiple Section 667.61
Life Sentences Were in Error
Appellant contends, and the
People agree, that the trial court erred in imposing a life sentence under
section 667.61 for all 28 sexual assaults.
An appellate court may correct a sentence that is not authorized by law
(In re Hoddinott (1996) 12 Cal.4th
992, 995–996, fn. 2), and the sentence the court imposed is not that required
by the statute. We will order the
appropriate modification. Remand to the
trial court for sentencing is not necessary in this case as the court made
abundantly clear how it would exercise its discretion. The trial court adequately provided statements
of reasons for each of its sentencing choices and stated, “It’s my intention,
despite the enormous amount of years, to impose every possible minute on Mr.
Lee that I can.â€
The jury found
true the allegations that appellant committed 28 sexual offenses
September 20, 2006. The trial court
stated its intention to sentence appellant under sections 667.61, subdivision
(i), and 667.6, subdivisions (b) and (c).
The trial court provided a statement of reasons for its sentencing
choices. The court found no factors in
mitigation and found the following factors in aggravation: (i) the crimes and their objectives were
predominantly independent of each other (Cal. Rules of Court, rule
4.425(a)(1)); (ii) the crimes involved separate acts of violence (Cal. Rules of
Court, rule 4.425(a)(2)); (iii) the crimes involved great violence (Cal. Rules
of Court, rule 4.421(a)(1)); (iv) the victims were particularly vulnerable
(Cal. Rules of Court, rule 4.421(a)(3)); (v) the manner in which the
crimes were carried out indicated planning (Cal. Rules of Court, rule
4.421(a)(8)); (vi) appellant engaged in violent conduct that indicated a
serious danger to society (Cal. Rules of Court, rule 4.421(b)(1)); and
(vii) appellant was on probation when the crimes were committed. The court stated its reasons for choosing “to
impose the maximum sentence†were because the crimes were “so cruel and so
vicious and so pathetic.†The court
imposed 28 One Strike sentences of 25 years to life, two of which were
doubled pursuant to the Three Strikes law.
California’s
“One Strike†law, section 667.61, provides for enhanced indeterminate terms of
15 or 25 years to life for those convicted of forcible sex offenses under
certain aggravating conditions. The
underlying offenses are punishable by determinate terms. (§§ 261, subd. (a)(2), 264, 286, subd. (c)(2),
288a,
subd. (c)(2) & 289, subd. (a)(1).)
Former section
667.61, subdivision (g), in effect when appellant committed the instant
offenses, provided, in relevant part, that an indeterminate term imposed under
former section 667.61, subdivision (a) or (b) “shall be imposed on the
defendant once for any offense or offenses committed against a single victim
during a single occasion. . . .
Terms for other offenses committed during a single occasion shall be
imposed as authorized under any other law, including Section 667.6, if applicable.†(Stats. 1998, ch. 936, § 9.)
Subdivision (a) of
former section 667.61 provided: “A
person who is convicted of an offense specified in subdivision (c) under one or
more of the circumstances specified in subdivision (d) or under two or more of
the circumstances specified in subdivision (e) shall be punished by
imprisonment in the state prison for
life and shall not be eligible for release on parole for 25 years except as
provided in subdivision (j).†(Stats.
1998, ch. 936, § 9.)
Effective September
20, 2006, the Legislature amended section 667.61
(g). (Stats. 2006, ch.
337, § 33.) Subdivision (i) was amended
to read in relevant part: “[f]or any
offense specified in paragraphs (1) to (7), inclusive, of subdivision (c), the court
shall impose a consecutive sentence for each offense that results in a
conviction under this section if the crimes involve separate victims or involve the same victim on separate
occasions, as defined in subdivision (d) of Section 667.6.†(Stats. 2006, ch.
337, § 33, eff. Sept. 20, 2006.)
Subdivision (i) was subsequently amended to also include offenses
specified “in paragraphs (1) to (6), inclusive, of subdivision (n).†(Stats. 2010, ch.
219, § 16, eff. Sept. 9, 2010.)
667.61, Subdivisions (a) and (g)
The trial
court cited to sections 667.6, and 667.61, subdivision (i) in its initial
statement of reasons when sentencing appellant to the 28 indeterminate
terms of 25 years to life to run consecutively to each other. The provision relevant to multiple offenses
sentencing in this case is former subdivision (g).
Based on
the trial court’s statement of reasons, and clear intent to sentence appellant
to the maximum possible sentence, and the applicable statutes in effect at the
time of the crimes, appellant’s sentence is calculated as follows:
1. Indeterminate sentence
An
indeterminate term of 25 years to life for one count subject to section 667.61,
subdivision (a) for each victim.
name="_ftnref8" title="">[8] The authorized indeterminate sentence for
appellant is nine terms of 25 years to life (counts 1, 9, 18, 23, 30, 35, 41,
45, and 54) plus one term of 50 years to life (count 52) (25 years to life
doubled, pursuant to §§ 667, subds. (b)–(i) & 1170.12, subds. (a)–(d)), for
a total of 275 years.
2. Determinate sentence
A
consecutive upper term for each of the remaining counts for which appellant was
convicted.
On count
51—a principal term of 16 years (the upper term of eight years, doubled pursuant to §§
667, subds. (b)–(i) & 1170.12, subds. (a)–(d)); on count 49—a consecutive subordinate
term of 12 years (the upper term of six years, doubled pursuant to the
Three Strikes law); on count 50—a consecutive subordinate term of two years
eight months (one-third the midterm of four years, doubled pursuant to the
Three Strikes law); on counts 3, 14, 26, 32 and 39—consecutive terms of
eight years (upper term for violation of § 261, subd. (a)(2)); on counts 13 and
55—consecutive terms of eight years (upper term for violation of § 286,
subd. (c)(2)); on counts 15 and 16—consecutive terms of eight years (upper term
for violation of § 289, subd. (a)(1)); on counts 17, 22, 25, 28, 33, 34, 38
and 56—consecutive terms of eight years (upper term for violation of § 288a,
subd. (c)(2)); for a total determinate sentence of 166 years and eight
months.
The
resulting modified sentence increases the determinate sentence term from
14 years and eight months to 166 years and eight months, but reduces the
indeterminate term from 750 years to life to 275 years to life.
II. No Violation of Sixth Amendment’s
Confrontation Clause
Appellant contends that his
right to confrontation under the Sixth Amendment to the United States
Constitution was violated because the testifying DNA experts did not personally
perform all of the testing upon which they relied in reaching their
opinions. He contends the admission of
the DNA evidence was prejudicial because he was not afforded an opportunity to
cross-examine the witnesses who performed the preparatory testing steps. Appellant challenges the testimony of
witnesses Lisa Grossweiler, Erika Jimenez, and Richard Gustilo and the
admission of DNA evidence in the cases involving Toni F., Helen C., and Janice
C., only. Finding no violation of the
confrontation clause, we reject his contention.
1. Grossweiler–Toni F.
Lisa
Grossweiler, a DNA analyst at Orchid Cellmark Diagnostics laboratory,
developed from a swab of Toni F.’s right breast obtained on April 11, 2001, matched
the male DNA profile developed from a swab of Toni F.’s mouth collected August
1, 2001. In reaching this conclusion,
Grossweiler relied on raw data and documentation her team provided on the
August 1, 2001 samples. Cellmark
followed standard techniques or generally accepted protocols for DNA
typing. Grossweiler’s team performed the
preliminary steps of extraction, quantification, amplification, and typing, and
she reviewed the work at each stage and verified the documentation before
authorizing the next step. Grossweiler
herself performed all the preliminary steps to develop the male DNA profile
with respect to the Toni F. April 11, 2001 DNA sample. Both DNA profiles were developed in June
2002.
Appellant’s
counsel objected to Grossweiler’s testimony on the grounds that it was
hearsay. Appellant’s counsel cited
36 (Crawford), Melendez-Diaz v. Massachusetts (2009) 557 U.S. 305 (
L.Ed.2d 610] (Bullcoming). The trial court overruled the objection.
F.
Erika Jimenez
was a DNA analyst at Orchid Cellmark Diagnostics laboratory in 2006.
reference swab obtained from appellant and submitted to the laboratory by the
Los Angeles Police Department. Her team
members extracted,
quantified, amplified, and typed the DNA profile. Jimenez reviewed all the notes in the
laboratory to confirm that all protocols were followed. She then analyzed the data, generated and
signed a report of the results.
Appellant’s
DNA profile developed by Jimenez identified 13 loci (specific physical
location on a DNA strand) and was compared to the one Grossweiler developed
from the August 1, 2001 Toni F. sample.
The profile created by Grossweiler identified nine loci. All nine loci matched appellant’s DNA
profile. Jimenez opined that appellant
could not be excluded as the source of the DNA from the August 1, 2001 Toni F.
sample. The estimated frequency of
occurrence of the nine loci genetic profile was one in 326 billion unrelated
individuals.
C. and Janice C.
Richard Gustilo was a forensic
scientist for the Orange County crime laboratory. As the case manager for the Helen C. assault,
he was responsible for all phases of testing and analyzing DNA samples and
confirmed that all tests assigned to other analysts were properly
performed. Gustilo himself performed a
screening test on the swabs collected from Helen C. and detected sperm on two
swabs. He reviewed the notes created by
his coworker, Susie Beal, who performed the extractions. He also reviewed the notes created by another
coworker, Jeanne Putinier, who created a DNA profile from the extract. The procedures were properly performed by
Gustilo’s colleagues. Gustilo
interpreted the data generated from the DNA profile and prepared and signed a
report of his findings dated April 6, 2006.
Gustilo compared the DNA profile he developed to a reference sample
obtained from appellant.
name="_ftnref12" title="">[12] Gustilo concluded that appellant’s reference
sample matched the DNA profile from the Helen C. samples. He prepared and signed a final report of his
findings dated June 26, 2006.
Gustilo
was also the forensic case manager for the Janice C. assault. He screened the vulva swabs obtained from
Janice C. and identified saliva. He
reviewed the notes prepared by his coworker Heidi Hunsaker, who performed the
extraction and found that she followed the proper procedures and
protocols. Gustilo himself typed the
extracted DNA and developed a male DNA profile.
He concluded that appellant’s reference sample was “consistent†with the
DNA profile obtained from the Janice C. swab.
Based on his statistical calculations made to determine the frequency of
a genetic profile in a random unrelated population, Gustilo testified that the
probability that two people would share the same “consistent†DNA patterns was
one in 80 million.
of Testimony
reviewing all of the transcripts related to the forensic testimony, the trial
court limited his remarks to witnesses Grossweiler, Jimenez, and Gustilo. The court noted that Grossweiler and Jimenez
headed teams of DNA analysts, who performed the necessary steps that produced
the data that Grossweiler and Jimenez analyzed.
Grossweiler and Jimenez ensured that all proper controls were in place
and reviewed the work of their subordinates before permitting the next step to
take place in the DNA testing process.
None of the team members testified, but Grossweiler and Jimenez
testified only to what they themselves found and not the team members’
findings.
The
court stated that Gustilo, who was a case manager and supervisor, testified as
to what other people did at the laboratory.
He testified that Beal performed the Helen C. extraction and Hunsaker
performed the Janice C. extraction. He
reviewed their notes to ensure they followed the proper protocols but did not
testify as to what either of them said.
The court found that Gustilo testified to his own conclusions based on
his own interpretation of the data. The
trial court gave the prosecution and defense the opportunity to subpoena Beal
and/or Hunsaker and arrange for their testimony, but neither party accepted the
court’s offer.
of Review
The California
Supreme Court has held that appellate courts should
generally apply the de novo or independent standard of review to claims that
implicate a defendant’s constitutional right to confrontation. (People
v. Seijas (2005) 36 Cal.4th 291, 304 [concluding that “independent reviewâ€
applies because “the ruling we are reviewing affects the constitutional right
of confrontationâ€].) Accordingly, we
apply the de novo standard of review to appellant’s claim that the trial
court violated his constitutional right to confrontation.
Appellant asks
this court to conclude “that the testimony of experts who relied upon
laboratory reports of non-testifying witnesses to conclude there was a DNA
match to appellant’s genetic profile violated the Confrontation Clause.†Appellant’s argument on this point is not the
current state of the law. The testimony
of Grossweiler, Jimenez, and Gustilo does not constitute the sort of
testimonial evidence that would trigger appellant’s rights under the
confrontation clause.
A criminal
defendant’s Sixth Amendment right “[i]n all criminal prosecutions
. . . to be confronted with the witnesses against him†(U.S.
Const., 6th Amend.), has been implemented by the corresponding rule that
“[t]estimonial statements of witnesses absent from trial have been admitted
only where the declarant is unavailable, and only where the defendant has had a
prior opportunity to cross-examine.†(
In Crawford,
an unconfronted statement made by the defendant’s wife in response to custodial
interrogation was testimonial and the defendant’s right to confront witnesses
against him was violated by its admission.
(Crawford, supra, 541 U.S. at
p. 68.)
The United States Supreme Court applied its Crawford holding
in three cases involving laboratory findings of nontestifying analysts: Melendez-Diaz,
supra, 557 U.S. 305; Bullcoming,
supra, 131 S.Ct. 2705; and Williams
v. Illinois (2012) 567 U.S. ___ [132 S.Ct. 2221, 183 L.Ed.2d 89] (
In Melendez-Diaz,
a chemical analyst’s affidavit was admitted as a substitute for live testimony
to prove an element of the drug trafficking offense—that the substance the
defendant possessed was cocaine. Five
justices agreed that the certification was “testimonial†because affidavits are
within the core class of testimonial materials covered by the
supra, 557 U.S. at p. 310.)
In
certified blood-alcohol report prepared by a nontestifying lab analyst was
testimonial. (Bullcoming, supra, 131 S.Ct. at pp. 2709, 2718–2719.)
In
uncertified results of a DNA analysis, performed by nontestifying Cellmark
analysts, were nontestimonial. (
2228.) Justice Thomas concurred solely
because the uncertified analysis lacked the requisite formality and solemnity
to be considered testimonial. (
opn. of Thomas, J.) He reaffirmed that
he would not join in any definition of “testimonial†that reaches beyond
““‘formalized testimonial materials,â€â€™ such as depositions, affidavits, and
prior testimony, or statements.†(
The California
Supreme Court addressed the significance of Crawford,
Melendez-Diaz, Bullcoming, and Williams
in three cases decided in 2012:
Rutterschmidt (2012) 55 Cal.4th 650 (Rutterschmidt).
The Lopez
court identified two “critical components†required to find a statement
testimonial: 1) the statement must have
been made with some degree of formality or solemnity; and 2) its primary
purpose must pertain in some fashion to a criminal prosecution. (Lopez,
supra, 55 Cal.4th at p. 581, 582.)
The court concluded that a lab analyst’s unsworn report analyzing
machine-generated blood-alcohol concentration data lacked the requisite degree
of formality to be testimonial, and the court therefore did not consider the
primary purpose of the report. (
using the same criteria, the court concluded that factual observations by a
nontestifying pathologist about the condition of a body, recorded in an unsworn
autopsy report, were not testimonial because they lacked formality and the
autopsy report had other purposes aside from
supra, 55 Cal.4th at p. 621.) In
whether a lab analyst’s report was testimonial because overwhelming evidence of
guilt rendered any confrontation clause violation harmless beyond a reasonable
doubt. (Rutterschmidt, supra, 55 Cal.4th at p. 661.)
The People argue,
and we agree, that the forensic data and reports in this case relied on by the
testifying DNA experts, Grossweiler, Jimenez, and Gustilo were not prepared
with the requisite formality or solemnity.
Nor was there any evidence of a sworn certification, declaration, or
other formality. They were unsworn,
uncertified records of objective fact and unsworn statements that “merely
record objective facts†that are not sufficiently formal to be testimonial. (Dungo,
supra, 55 Cal.4th at p. 619.)
A factual distinction
between our case and Lopez further
supports the conclusion that the testimony of Grossweiler, Jimenez, and Gustilo
was not barred by the Sixth Amendment.
In Lopez, the defendant was
charged with vehicular manslaughter while intoxicated and the prosecution
introduced into evidence a chart containing handwritten notations by another
analyst and a laboratory assistant, neither of whom testified at trial,
concerning the percentage of alcohol in a blood sample taken two hours after
the accident. (Lopez, supra, 55 Cal.4th at p. 573.) It was undisputed that the statement that the
defendant’s blood sample contained .09 percent alcohol was admitted for its
truth. (Id. at p. 583.) The court
held the laboratory chart, even with the handwritten notation, was not
testimonial in nature. The Lopez
majority concluded that the notations did not meet the requirements that they
be made with formality or solemnity.
Neither the nontestifying analyst who performed the analysis nor the
laboratory assistant signed, certified, or swore to the contents of the
chart. (Id. at pp. 584–585.) Justice
Werdegar, in a concurring opinion signed by Chief Justice Cantil-Sakauye,
Justice Baxter and Justice Chin, agreed that the logsheet notations were not
made with sufficient formality or solemnity to be deemed testimonial. (Id.
at p. 585.)
Here, no
evidence that bore on the ultimate facts necessary to establish guilt was
presented through a report whose author was unavailable for
cross-examination. The only reports
received into evidence were prepared by the testifying DNA experts,
Grossweiler, Jimenez, and Gustilo, who all testified that they did not include
any analysis or conclusions by nontestifying analysts. Their review of subordinates and coworker’s
notes was limited to ensuring the proper protocols were followed at the
laboratory in completing the preparatory steps of the process. Appellant’s trial counsel was free to
cross-examine these witnesses on DNA issues and did so extensively.
In a concurring
opinion, Justice Breyer in Williams
noted “the introduction of a laboratory report involves layer upon layer of
technical statements (express or implied) made by one expert and relied upon by
another.†(Williams, supra, 132 S.Ct. at p. 2246.) In Melendez-Diaz,
the Supreme Court held that not “everyone who laid hands on the evidence must
be called†as a witness in order to satisfy the right to confrontation. (Melendez-Diaz,
supra, 557 U.S. at p. 311, fn. 1.)
Based upon existing precedent from the California and United States
Supreme Court, we conclude that the data and information relied on by
Grossweiler, Jimenez, and Gustilo was not testimonial and appellant’s right to
confront witnesses against him was not violated by their testimony.
III. Substantial Evidence Supports Appellant’s
Convictions
Appellant
contends the evidence was insufficient to sustain the convictions on certain
counts. He argues the evidence was
insufficient to establish (1) forcible oral copulation in count 1; (2)
forcible rape in count 3; and (3) the knife-use enhancement in count 9. We disagree.
When an appellant
challenges the sufficiency of the evidence to support a conviction, “we review
the entire record in the light most favorable to the judgment to determine
whether it discloses 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. Bolin (1998) 18 Cal.4th 297, 331.) We “‘“presume in support of the judgment the
existence of every fact the trier could reasonably deduce from the
evidence.â€â€â€™ (People v. Davis (1995) 10 Cal.4th 463, 509.) We draw all reasonable inferences in support
of the judgment. (People v. Pensinger (1991) 52 Cal.3d 1210, 1237.) “An inference is not reasonable if it is
based only on speculation.†(
669.)
Appellant rests
his sufficiency challenge solely on the ground that Q. M.’s statements, even if
true, do not establish that he forced his penis into her mouth. Appellant overlooks evidence of other conduct
we find sufficient to prove oral copulation.
“Oral copulation
is the act of copulating the mouth of one person with the sexual organ or anus
of another person.†(§ 288a, subd.
(a).) The external female genitalia, the
vulva, includes “the mons pubis, the labia majora and minora, the clitoris, the
vestibule of the vagina and its glands, and the opening of the urethra and of
the vagina.†(
[as of June 28, 2013], quoting Stedman’s Medical Dictionary.)
Q. M. testified
appellant licked her “private area,†licked the “pubic hair area†of her vagina
and told Jan Hare, a forensics nurse specialist who conducted a sexual
assault examination immediately after the attack, that appellant licked her
“inner thighs†and “vaginal area.†From the
language Q. M. used, the jury could reasonably conclude appellant had oral
contact with her and had placed his mouth on her genitalia. (See, e.g., People v. Wilson (1971) 20 Cal.App.3d 507, 510 [evidence of oral
copulation was sufficient when victims testified the defendant
“kissed them in the vaginal area with his tongueâ€]; People v. Hunter (1958) 158 Cal.App.2d 500, 502, 505 [evidence of oral
copulation was sufficient when the defendant “licked and rubbed
[the victim] between her legs,†and she did a similar act on him];
84, 87–88 [placing one’s mouth on a female’s “private parts†was oral
copulation].) The evidence
here is similar to that found sufficient in the cases cited above, and we
therefore conclude the evidence was sufficient to support appellant’s
conviction of oral copulation.
Appellant
contends that Q. M.’s statements, even if true, do not establish the essential
element of sexual penetration. We
disagree.
The argument
appellant advances here was rejected in People
v. Karsai (1982) 131 Cal.App.3d 224 (disapproved on other grounds by
600, fn. 8). The crime in that case, as
we have here, was rape, which by the terms of section 263 is “complete[d]†by
“[a]ny sexual penetration, however slight.â€
The defendant argued that he did not commit rape because his penis did
not penetrate the victim’s vagina. The
victim testified that she believed the defendant’s penis was inside her body
when it was between her labia majora and minora, and at the entrance to her
vagina. The court held that
“[p]enetration of the external genital organs is sufficient to constitute
sexual penetration and to complete the crime of rape even if the rapist does
not thereafter succeed in penetrating into the vagina.†(Karsai,
supra, at p. 232.) This conclusion
was consistent with the “universal rule†in other jurisdictions, and the “clear
intent†of the statutory reference to penetration, “however slight.†(Id.
at p. 233.) The court noted that the
“penetration which is required is sexual penetration and not vaginal
penetration.†(Id. at p. 232.)
Q. M. testified
that appellant succeeded in pressing his penis into the “upper portion†of her
vaginal lips. She also testified that
appellant’s penis went “halfway†but did not go “all the way†inside her
vagina. Immediately after the attack Q.
M. told Hare that appellant vaginally penetrated her with his
penis. This evidence supports the jury’s
determination that appellant made actual sexual penetration and is sufficient to support
his conviction.
for Use of Knife
Appellant
contends the knife-use enhancement must be stricken because the victim, Dorothy
M., testified that she did not know appellant had a weapon and did not see what
cut her arm. The claim is immaterial to
the calculation of appellant’s sentence because appellant was found to have
committed this offense during the commission of a burglary (count 12), and the
trial court sentenced appellant on this count to 25 years to life pursuant to
section 667.61, subdivisions (a) and (d).
In any event, appellant’s claim fails because there was sufficient
evidence appellant used a deadly or dangerous weapon.
“The question is
whether, after viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the elements of
the underlying enhancement beyond a reasonable doubt.†(People
v. Alvarez (1996) 14 Cal.4th 155, 225.)
The nature and extent of the victim’s injuries can support the deadly
weapon enhancement. (
which required suturing with 20 stitches, prevented the victim from
opening her mouth and blackened the left side of her face from her hairline to
her neck, supported the deadly or dangerous weapon
enhancement].)
Dorothy M.
testified that she felt appellant “mark†her with some instrument and the
injury was “very painful and very hot.â€
She told the 9-1-1 operator that her arm was bleeding and her bed was
“full of blood.†Toyetta Beukes,
conducted a sexual assault examination of Dorothy M. and testified the incised
wound on Dorothy M.’s right arm was consistent with a knife or trauma from
a weapon because of the fine edges of the wound.
The fact that
Dorothy M. could not ascertain the exact nature of the “weapon†used in the
assault is of little consequence. It was
undisputed that she suffered an incision type wound which bled
significantly. The injury alone was
sufficient for the jury to draw the inference that appellant used a deadly or
dangerous weapon. (People v. Alvarez, supra,
14 Cal.4th at p. 225.)
IV. Abstract of Judgment
The People correctly point out
that appellant’s determinate and indeterminate abstracts of judgment reflect
erroneous sentences on a number of counts.
In light of this court’s modification of appellant’s sentence to reflect
the trial court’s intention at the sentencing hearing on April 13, 2012,
appellant’s determinate and indeterminate abstracts of judgment must be amended
accordingly.
Upon remittitur issuance, the clerk of the
superior court shall prepare amended abstracts of judgment
consistent with the modified determinate and indeterminate sentences in part
I.C. of this opinion. The clerk shall
forward the amended abstract of judgment to the California
Department of Corrections and
Rehabilitation. In all other
respects, the judgment is affirmed.
NOT
TO BE PUBLISHED IN THE OFFICIAL REPORTS.
_____________________, J.
FERNS
We concur:
____________________________,
P. J.
BOREN
____________________________,
J.
CHAVEZ
name="_ftn1" title="">[1] All
further statutory references are to the Penal Code unless otherwise indicated.
facts herein contain a description of the crimes and details that relate to
appellant’s contentions on appeal, therefore, we omit a summary of the facts
relating to victims Rose B., Claudia C., J. S., Kathy S., and Lisa L., as they
are not relevant. Likewise, appellant is
not contesting any issues related to the collection of DNA evidence or its
chain of custody and those underlying facts are also omitted.
