Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. BA271804 Lance A. Ito, Judge.
David H. Goodwin, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, James William Bilderback II and David Zarmi, Deputy Attorneys General, for Plaintiff and Respondent.
ASHMANN-GERST, J.
A jury convicted Alan James Bradley (appellant) of first degree murder (Pen. Code, § 187, subd. (a)) (count 1) and false imprisonment (§ 236) (count 3). The jury found that the murder was committed during a rape. (§ 190.2, subd. (a)(17)(C).) The trial court found true the allegations that appellant had suffered five prior serious or violent felony convictions and had served a prior prison term. (§§ 667, subds. (a)(1), (b)-(i); 667.5, subd. (b).) The trial court sentenced appellant to life without the possibility of parole on count 1 and a consecutive high term of three years on count 3.
All further statutory references are to the Penal Code unless otherwise indicated.
Appellant appeals on the grounds that: (1) the trial court erred in admitting hearsay statements that violated the principles established in Crawford v. Washington (2004) 541 U.S. 36 (Crawford) and violated appellant’s rights under the Sixth Amendment to the United States Constitution; (2) the evidence presented at trial was insufficient to support the verdict, which resulted in a violation of appellant’s right to due process of law; and (3) appellant was denied the right to competent trial counsel and deprived of his constitutional rights under the Sixth and Fourteenth Amendments.
We affirm the judgment as modified.
FACTS
Prosecution Evidence
On the morning of December 29, 1992, Tibor Simon (Simon), a maintenance man for a property management company, went to 4322 Wilshire Boulevard with his boss. Water had leaked into the abandoned building and it was damp and full of moss. Simon and his boss discovered a woman’s body inside and immediately left the building and called police.
Detective Frank Bolan and Detective Paul Coulter of the Los Angeles Police Department (LAPD) responded to the call at 4322 Wilshire Boulevard. The building runs the entire block between Plymouth Boulevard and Windsor Boulevard, extending eastward to run behind and wrap around the Dunes Hotel on Wilshire Boulevard. In a small room that served as the elevator lobby, they found the body of a woman with all her clothes and underwear ripped open and pushed behind her back. Nylons had been used to tie her ankles together and her hands behind her back. There was a pair of pants wrapped around the victim’s neck. The victim’s glasses were found inside the entrance from a walkway on the south side of the building. The entrance led into a stairwell. Buttons were found along a hallway leading from the stairwell and also in the elevator alcove. On all three floors of the building, there was evidence of occupation by squatters. There were food wrappers, trash, Christmas decorations, and toys. There were many cigarette butts and used condoms. Because of leaks in the building, most of the carpeting was soaked.
The return address on an unmailed letter found at the scene was that of V.M., who lived one block away at 758 South Plymouth Boulevard. V.M.’s car was found parked on Plymouth Boulevard between her apartment and the vacant building. The car had a parking ticket written on December 28, 1992, at 12:13 p.m.
H.C. had been friends with V.M. since 1954. V.M. had been a secretary and was 79 years old when she died. She was single and had lived on Plymouth Boulevard since the early 1970’s. V.M. had spent Christmas with the H.C.s, and H.C. had last spoken with V.M. on the morning of December 27, 1992, a Sunday. V.M. spoke of her plans to attend church with friends and then go to lunch.
Dan Anderson (Anderson) is a supervising criminalist with the Los Angeles County Department of the Coroner. Lloyd Mahaney (Mahaney) was a senior criminalist who retired a month before trial. Anderson testified that Mahaney evaluated the victim’s body at the scene. Mahaney collected evidence from the body both at the scene and at the coroner’s Forensic Science Center. Anderson reviewed the “criminalistic report” by Mahaney as well as the form 81 Mahaney filled out. Anderson did not speak with Mahaney or anyone else who was at the crime scene at any time.
The form 81 is a sexual assault evidence data sheet and it documents where all the swabs and any other type of evidence were collected. It is a writing made in the regular course of business at the coroner’s office. The form 81 in V.M.’s case bore the same number as the sexual assault kit. In the form, Mahaney documented when and where the swabs were collected.
Anderson also reviewed the evidence log and some investigative reports by the coroner’s investigator, who acts as the eyes and ears of the pathologists who do not visit a crime scene. The evidence log was maintained in the regular course of business at the coroner’s office. It listed all the evidence collected in this case and was made when the evidence was turned into the evidence room. The log also recorded when the evidence was released to law enforcement. The evidence log in this case was properly filled out. It showed that the evidence was collected by Mahaney at approximately 4:00 p.m. on December 29, 1992. It was received in the evidence room on January 7, 1993, at approximately 9:00 a.m. and released to someone from the LAPD with badge number 15103 on January 8, 1993. Anderson had difficulty reading the signature of the person from the LAPD.
Anderson also reviewed an LAPD preliminary report. Anderson obtained all of these records from the criminalistic folder for the case, which is a folder that the coroner’s laboratory maintains of its involvement in each case. Every coroner’s case is assigned a unique case number. Sexual assault kits are also assigned a unique identifying number.
On December 29, 1992, Gerald Blanton (Blanton) was a criminalist with the LAPD, and he assisted with the investigation of the homicide at 4322 Wilshire Boulevard with lead criminalist Allison Ochiaie, who had since passed away. Blanton had no independent recollection of what happened at the crime scene but based his testimony on a review of the notes and photographs. He identified three envelopes he initialed that contained buttons collected from the hallway floor at the Wilshire scene. He collected a letter bearing the victim’s return address label that was found leaning against a wall at the scene. He identified more buttons and some keys and sunglasses he collected from a stairwell. He identified a photograph of the elevator lobby where the victim was found. He identified pictures of items of clothing collected from the elevator lobby. His report said that a condom was collected from a raised planter area outside the building, and he identified a photograph of the condom in the planter and a photograph of a cigarette butt collected in the stairwell area.
Dr. Susan Selser performed an autopsy on V.M. The victim had a pair of blue pants around her neck. She had large areas of bruising on her face and extensive bruising on the inside of the mouth that constituted significant trauma. There was a slight hemorrhage on the outside of the soft tissue around the mouth and hemorrhage of the soft tissues deep in the neck at the back of the throat. These were probably caused by compression of the soft tissues of the mouth against the teeth. These injuries were highly suggestive of an element of suffocation or asphyxia by suffocation. The facial bruises were caused by blunt force, such as being punched in the face. V.M. also had abrasions on her hands, arms, left shoulder, chest, knees, left hip, and right buttock as well as three broken ribs. Dr. Selser found abrasions, bruising, and tears around the vagina, and redness on the clitoris. Dr. Selser listed the cause of V.M.’s death as suffocation and strangulation.
Detectives Bolan and Coulter were the investigating officers on the V.M. homicide. Detective Bolan confirmed that he was the LAPD member with badge number 15103 who collected all the evidence from the coroner’s office on January 8, 1993, and took it to the Wilshire Station. There he numbered and packaged the items and booked them into evidence. The evidence included a sexual assault kit and a pubic hair kit.
Collin Yamauchi (Yamauchi), a criminalist with LAPD, analyzed the sexual assault evidence from the V.M. case in January 1993. His notes were not available but he reviewed his reports. He found semen on the condom. He found spermatozoa fragments on the external genital, anal, and vaginal slides and on the swabs from the same areas of the victim’s body. Yamauchi found amylase, a component of saliva, on the swab of the left nipple area.
Detective Coulter interviewed appellant on September 24, 2004, and obtained from him buccal swabs, hair, and blood, which were then booked into evidence. A recording of the interview was played for the jury and transcripts were provided. After being read his Miranda rights, appellant told police that he had previously lived in the Wilshire area and volunteered that he had occasionally stayed at the Dunes hotel in the past. He said the hotel was located at Wilshire Boulevard and Windsor Boulevard. He remembered the office building by the Dunes, but he did not stay in the building. He remembered it had been waterlogged. Appellant said he had never been inside the building. He said he used to sit in the stairwell of the building, take a hit of crack, and leave. He knew of a white guy who used to stay in the building. He said that the entrance was not on Wilshire Boulevard but on the back side, and there was a walkway between two streets on that side. He knew nothing about a lady being found murdered in the building, and he did not see how his DNA could have been found.
Miranda v. Arizona (1966) 384 U.S. 436 (Miranda).
Dr. Winters Hardy, a criminalist with the City of Los Angeles, examined the rape evidence in the V.M. case on two occasions in 2004. The sexual assault kit was in a small box and was sealed when he collected it. The top-most seal bore the name of C. Yamauchi and was dated March 12, 1993. The vaginal sample did not have a lot of sperm present. In order to obtain a full and complete DNA profile, he submitted the external genital sample to Orchid Cellmark (Cellmark), a contractor that performs DNA testing. He also submitted a blood sample from V.M., a left nipple swab, and a buccal swab from appellant. He had no independent recollections of his actions but testified as to what he did as a matter of practice. He acknowledged that the sperm from the interior of the vagina could be from a different donor than that of the sperm on the external vagina. He was aware that the external genital sample had been linked to appellant.
Kelly Brockhohm was employed by Cellmark as a DNA analyst and received the evidence from V.M.’s case on October 5, 2004. Cellmark received the external genital swab, the left nipple swab, a reference sample bearing appellant’s name, and a reference sample from V.M. Brockhohm performed DNA analysis on all samples and issued a report on December 20, 2004. On the nipple swab, there was DNA from a male and a female. The primary profile matched the blood from V.M., and appellant was excluded as a source of the DNA in that sample. The sample of the external genital area contained DNA from a male, and the primary DNA profile matched the DNA profile from appellant. The approximate frequency of this DNA profile is 1 in 13 quintillion individuals in the African-American population and the Caucasian population.
Defense Evidence
Debbie Daniels (Daniels) was a criminalist in the trace analysis unit of the LAPD. She testified regarding her report dated June 11, 1993, on her comparison of pubic hair combings from the victim to the victim’s pubic hair. She received the pubic hair combings from Yamauchi. The decedent’s pubic hair kit was in the LAPD property room, where it was held after being collected from the coroner. Because her examination of the pubic hair combing showed a single human hair that she believed was not of pubic origin, she did not perform the requested examination. Detective Bolan requested an examination of various items of clothing for negroid hair. Daniels found none in the six items she examined.
Ron Raquel, a criminalist for the City of Los Angeles, performed testing on the sexual assault kit in this case. His report was dated September 28, 2004. The report did not state the date the testing was completed. Dr. Hardy gave him a pubic hair combing kit composed of a white paper bindle with a comb. On the comb he found a black hair with no root that could not be used for DNA analysis. Later Dr. Hardy gave him a slide prepared by another criminalist that had a light brown hair with a root. He found another light brown hair on the pubic combing comb without a root. The other criminalist, Daniels had found that the hair with the root was not a pubic hair or a head hair and hence not suitable for comparison with others.
Cellmark analyst Jody Hrabal (Hrabal) received evidence from this case on September 22, 2005. She analyzed the swabs from the internal side and external sides of a condom and from V.M.’s right nipple. She also analyzed a small black hair. Hrabal determined that the sperm in the condom was not from appellant. She could not obtain a DNA sample from the sperm fraction of the right nipple swab or the hair. The unknown male who used the condom was not the same unknown male who contributed to the cells found on the left nipple swab in 2004. Neither of the unknown males matched appellant. V.M.’s DNA was not found anywhere on the external portion of the condom.
Jimmy Wong (Wong), a forensic fingerprint specialist with the LAPD, examined latent fingerprint lifts from various parts of the building on Wilshire Boulevard. Wong was able to exclude appellant as the person who left these prints.
DISCUSSION
I. Admission of Hearsay
A. Appellant’s Argument
Appellant contends the trial court prejudicially erred by admitting testimonial hearsay evidence in the form of Anderson’s testimony. Anderson testified about reports by Mahaney, the criminalist who evaluated the body at the scene and collected evidence. Appellant argues that the business-records exception to the hearsay rule is not an exception to the confrontation clause under Crawford, and the opinion of the California Supreme Court in People v. Geier (2007) 41 Cal.4th 555 (Geier) that laboratory tests and their results are nontestimonial is erroneous.
B. Relevant Authority
The confrontation clause of the Sixth Amendment of the United States Constitution provides that “‘[i]n all criminal prosecutions, the accused shall enjoy the right... to be confronted with the witnesses against him.’” (Crawford, supra, 541 U.S. at p. 42.) The confrontation clause has traditionally barred “admission of testimonial statements of a witness who did not appear at trial unless he was unavailable to testify, and the defendant had had a prior opportunity for cross-examination.” (Id. at pp. 53-54.) “Statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.” (Davis v. Washington (2006) 547 U.S. 813, 822.)
In People v. Cage (2007) 40 Cal.4th 965 (Cage), the California Supreme Court derived several basic principles from Davis: “First,... the confrontation clause is concerned solely with hearsay statements that are testimonial, in that they are out-of-court analogs, in purpose and form, of the testimony given by witnesses at trial. Second, though a statement need not be sworn under oath to be testimonial, it must have occurred under circumstances that imparted, to some degree, the formality and solemnity characteristic of testimony. Third, the statement must have been given and taken primarily for the purpose ascribed to testimony—to establish or prove some past fact for possible use in a criminal trial. Fourth, the primary purpose for which a statement was given and taken is to be determined ‘objectively,’ considering all the circumstances that might reasonably bear on the intent of the participants in the conversation. Fifth, sufficient formality and solemnity are present when, in a nonemergency situation, one responds to questioning by law enforcement officials, where deliberate falsehoods might be criminal offenses. Sixth, statements elicited by law enforcement officials are not testimonial if the primary purpose in giving and receiving them is to deal with a contemporaneous emergency, rather than to produce evidence about past events for possible use at a criminal trial.” (Cage, supra, at p. 984.)
C. No Confrontation Clause Violation
As appellant acknowledges, the California Supreme Court in Geier, supra, 41 Cal.4th 555, concluded that a DNA report by a non-testifying witness, Yates, was not testimonial evidence for purposes of Crawford and Davis. (Geier, supra, at p. 607.) Yates’s reports were used by the prosecution’s DNA expert, the director of the laboratory employing Yates, in her testimony regarding DNA analysis in general and the test results on evidence taken from the crime scene and the defendant. (Id. at pp. 595-596.) After reviewing the case law on the issue (id. at pp. 597-605), the court was “more persuaded by those cases concluding that such evidence is not testimonial,” based on its own interpretation of Crawford and Davis. (Geier, supra, at p. 605.)
Geier extracted from the case law that “a statement is testimonial if (1) it is made to a law enforcement officer or by or to a law enforcement agent and (2) describes a past fact related to criminal activity for (3) possible use at a later trial. Conversely, a statement that does not meet all three criteria is not testimonial.” (Geier, supra, 41 Cal.4th at p. 605.) Even though Yates was paid to do work as part of a government investigation, and it could reasonably have been anticipated that her report might be used at a subsequent criminal trial, her “observations... constitute[d] a contemporaneous recordation of observable events rather than the documentation of past events” and hence were not testimonial. (Ibid.) “Yates conducted her analysis and made her notes and report, as part of her job, not in order to incriminate defendant.” (Id. at p. 607.) She did not “‘bear witness’” against the defendant, since the records of the protocols followed and the resulting raw data were not accusatory, but neutral, having the power to exonerate as well as incriminate. (Ibid.) Thus, the circumstances under which the report and notes were generated, and not the fact that they would be available for use at a later trial, were determinative of whether they were testimonial, and they were not. (Ibid.)
The same holds true for the documents prepared by Mahaney, which were used by Anderson in his testimony. Mahaney evaluated the victim’s body at the scene and collected evidence from the body both at the scene and at the coroner’s Forensic Science Center. Mahaney’s form 81, the sexual assault evidence data sheet, is prepared in the regular course of business at the coroner’s office. It documented the swabs taken from various areas of the body and other physical evidence.
Anderson also reviewed the evidence log, which is also maintained in the regular course of business at the coroner’s office. It listed all the evidence collected in this case and was made when the evidence was turned into the evidence room. It also stated when the evidence was released to law enforcement. The evidence log in this case was properly filled out and showed that the evidence was collected by Mahaney at approximately 4:00 p.m. on December 29, 1992. It was received in the evidence room on January 7, 1993, at approximately 9:00 a.m. and released to someone from the LAPD, badge number 15103 (later identified as Detective Bolan) on January 8, 1993. Mahaney’s reports were neutral rather than accusatory, and they were not rendered testimonial simply by the fact of their use by Anderson in a trial some 15 years later.
In addition to being required to follow the decisions of the California Supreme Court (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455), we believe the decision is based upon sound reasoning. We reject appellant’s argument.
II. Sufficiency of the Evidence
A. Appellant’s Argument
Appellant contends the evidence presented at trial was insufficient. Although there was evidence that appellant was present at some time when V.M.’s body was in the building, there was no evidence that appellant was the person who killed her, or that McDonald was raped and that it was appellant who raped her. There was also no evidence regarding the actions appellant might have taken as an aider and abettor that assisted the actual killer in the commission of the crime.
B. Relevant Authority
“In reviewing a challenge of the sufficiency of the evidence, we apply the following standard of review: ‘[We] consider the evidence in a light most favorable to the judgment and presume the existence of every fact the trier could reasonably deduce from the evidence in support of the judgment. The test is whether substantial evidence supports the decision, not whether the evidence proves guilt beyond a reasonable doubt.’ [Citations.] The United States Supreme Court has held: ‘[T]his inquiry does not require a court to “ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt.” [Citation.] Instead, the relevant question is whether after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ [Citations.].... ‘Reversal on this ground is unwarranted unless it appears “that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].”’ [Citations.]” (People v. Gaut (2002) 95 Cal.App.4th 1425, 1430.)
Given this court’s limited role on appeal, defendant bears an enormous burden in arguing insufficient evidence to sustain the verdict. If the verdict is supported by substantial evidence, we are bound to give due deference to the trier of fact and not retry the case ourselves. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.) Even if the circumstances may be reconciled with a contrary finding, as long as substantial evidence supports the verdict, the judgment must be affirmed. (People v. Rodriguez (1999) 20 Cal.4th 1, 11.)
“‘“‘Circumstantial evidence may be sufficient to connect a defendant with the crime and to prove his guilt beyond a reasonable doubt.’” [Citation.]’” (People v. Bradford (1997) 15 Cal.4th 1229, 1329.) Because intent can seldom be proven by direct evidence, it typically is inferred from the circumstances. (People v. Smith (1998) 64 Cal.App.4th 1458, 1469; People v. Edwards (1992) 8 Cal.App.4th 1092, 1099; People v. Wilkins (1972) 27 Cal.App.3d 763, 773.)
C. Evidence Sufficient
Appellant was tried under a theory of premeditated and deliberate murder and felony murder. A killing committed in the perpetration of rape is first degree felony murder. (§ 189; People v. Hart (1999) 20 Cal.4th 546, 608.) The required intent for felony murder is simply the specific intent required to commit the underlying felony. (Ibid.) Liability for a felony murder is borne by those who knowingly and purposefully participate in the underlying felony, even if they do not participate in the killing. (People v. Dominguez (2006) 39 Cal.4th 1141, 1159.)
The evidence showed that V.M. was indeed raped. Dr. Selser of the coroner’s office saw two small abrasions and tears laterally on the labia majora on the left and right side. There was redness around the clitoral area and small tears along the upper and posterior aspect of the entrance to the vagina. Dr. Selser saw a small area of hemorrhage inside the posterior of the vaginal wall. The hemorrhage in the vaginal wall was made on or about the time of death. There was also a pattern injury on the back of the buttock that suggested it was made by a hand. The injuries were consistent with a sexual assault. Dr. Selser explained that she could not classify the assault as a rape, since rape involved a consent factor that she could not determine.
V.M.’s injuries in the neck and mouth suggested that the cause of death was a combination of strangulation and suffocation. The evidence thus suggested that V.M. was raped while she was being deprived of oxygen. Dr. Selser stated that she believed V.M. died “during and because of the assault on her.” A very large amount of sperm containing only appellant’s DNA was found on the exterior of the vagina. Even though the low level of sperm found in the interior of the vagina could not be tested, and there was a small amount of sperm and the DNA of an unknown male on V.M.’s nipples, there was sufficient evidence for the jury to reasonably find that appellant was guilty of murder during a rape either as the direct perpetrator or as an aider and abettor.
The scenario presented by appellant—that appellant entered the building after an unknown male raped V.M. and masturbated after V.M. was already dead—is not a reasonable one. A rational trier of fact would have rejected appellant’s suggested scenario for the more reasonable and less speculative inference that appellant killed V.M. or aided and abetted her killing while participating in the act of raping her.
III. Competency of Counsel
A. Appellant’s Argument
Appellant claims his trial counsel prejudicially failed to raise and/or properly present arguable issues on his behalf. In particular, defense counsel failed to object to the evidence barred by the hearsay rule, and he failed to object to fatal flaws in the chain of custody of the DNA evidence.
B. Relevant Authority
In order to prevail on a claim of ineffective assistance of counsel, the defendant must show that counsel’s “acts or omissions were outside the wide range of professionally competent assistance” (Strickland v. Washington (1984) 466 U.S. 668, 690 (Strickland)). Appellant must also establish that the challenged act or omission did not result from an informed tactical choice within the range of reasonable competence. (People v. Pope (1979) 23 Cal.3d 412, 425.) If the record sheds no light on why counsel acted or failed to act, the appellate court should affirm unless there could be no satisfactory explanation for the act or omission. (People v. Ledesma (1987) 43 Cal.3d 171, 218.)
Secondly, appellant must show that the alleged deficiencies in counsel’s performance were prejudicial to the defense, i.e., that there is a reasonable probability that but for counsel’s unprofessional errors, the outcome of the case would have been different. (Strickland, supra, 466 U.S. at p. 694; People v. Ledesma, supra, 43 Cal.3d at pp. 217-218.) A reasonable probability is one “sufficient to undermine confidence in the outcome.” (Strickland, supra, at p. 694.)
A court need not assess the two factors of the inquiry in order. If there is an inadequate showing on either factor, it need not be addressed. (Strickland, supra, 466 U.S. at p. 697.) Thus, if the record reveals that appellant suffered no prejudice, we may decide the issue of ineffective assistance of counsel on that basis alone. (Ibid.)
C. Counsel Not Ineffective
With respect to counsel’s alleged failure to object on Crawford grounds to the evidence stemming from Mahaney’s reports, we have concluded that these reports were properly used in Anderson’s testimony. Therefore, defense counsel was not ineffective for failing to object to the reports, and appellant suffered no prejudice from any failure to object to the use of these reports.
We disagree with appellant’s premise that there were objectionable chain of custody issues. Our Supreme Court has repeatedly held that “[i]n a chain of custody claim, ‘“[t]he burden on the party offering the evidence is to show to the satisfaction of the trial court that, taking all the circumstances into account including the ease or difficulty with which the particular evidence could have been altered, it is reasonably certain that there was no alteration. [¶] The requirement of reasonable certainty is not met when some vital link in the chain of possession is not accounted for, because then it is as likely as not that the evidence analyzed was not the evidence originally received. Left to such speculation the court must exclude the evidence. [Citations.] Conversely, when it is the barest speculation that there was tampering, it is proper to admit the evidence and let what doubt remains go to its weight.” [Citations.]’ [Citations.]” (People v. Catlin (2001) 26 Cal.4th 81, 134 ; see also People v. Lucas (1995) 12 Cal.4th 415, 444.)
In this case, appellant mentions specifically the chain of custody for evidence relating to the sexual assault kit. He states that it could not be determined how the kit made it to the LAPD—whether it was sent to the evidence room, or whether it was “just immediately released from that holding area.” Also, it could not be determined whether Dr. Selser took the autopsy blood sample to the evidence room or whether another person did so. Appellant’s last complaint is that Yamauchi did not recall when he returned the sexual assault kit to the evidence control unit.
These details extracted from the testimony do not show failures in the chain of custody. Appellant’s first complaint—that the evidence log showed an item belonging to the sexual assault kit was taken to LAPD by unknown means—is based on a misunderstanding of the record. Anderson was actually telling the prosecutor that he did not know how the LAPD acquired a beige vest found at the scene. The box on the evidence log for the date of receipt into the evidence room was blank. Anderson explained that clothing found at a homicide scene is often saturated with blood or other fluids and must be dried prior to final packaging and placement in the evidence room. It is hung in a secured cage to dry and later packaged by evidence-room staff. In this case, it appeared the sweater never went to the evidence room and was released to the LAPD from the holding area.
The beige sweater Anderson was discussing had no effect on the proof in this case. It did not serve as the foundation of any significant evidence produced. Therefore, it was not relevant, and no objection to the gap in its chain of custody was called for. Counsel is not required to make futile or frivolous objections. (People v. Price (1991) 1 Cal.4th 324, 386-387.)
With respect to the typing blood sample taken by Dr. Selser during the autopsy, Anderson stated he was not sure if the doctor took it to the evidence room directly or whether another party would have been involved. Anderson said he would need to consult additional records to determine if the blood sample went to the laboratory and the laboratory took it to the evidence room.
The record showed that Dr. Selser collected the blood sample on December 30, 1992, and recorded it on the log sheet. The blood was received by the evidence room at 3:00 p.m. on the same day. Yamauchi stated that when he picked up the sexual assault kit and the blood, the evidence did not appear to have been tampered with. If it had, he would have noted it on his report. Dr. Hardy, who checked out the blood vial from the victim in 2004 stated that the envelope containing the vial did not appear to have been tampered with in any way. There was no reasonable possibility that the victim’s blood sample had been tampered with, and therefore appellant suffered no prejudice by counsel’s failure to object on the basis of a chain-of-custody issue regarding this blood sample.
As for appellant’s last point, it is true that Yamauchi did not recall when he returned the sexual assault kit to the evidence control unit. He stated that this information would be in his notes, but he no longer had them. The only way to track the exact dates of collection and return of the evidence was to find the card where this information was recorded. Unfortunately, these cards were stored in such a fashion that it was not possible to access them at the time of trial.
Yamauchi explained that while the evidence was in his custody, he analyzed it. Upon finishing his analysis, he sealed it with a yellow analyzed-evidence seal that bore his name and the date, and he then returned it to the property evidence control unit. He stated that any other analyst who subsequently took the evidence from the property unit and saw his seal could establish that the evidence had not been tampered with between the time it was in his custody and the time the other analyst received it. Dr. Hardy, who examined the rape evidence in 2004, testified that he obtained the sexual assault kit from the central evidence control facility, and the kit had a number of seals. The topmost seals were two criminalist’s yellow seals signed by Yamauchi and dated March 12, 1993. Thus, the evidence was not tampered with, and the lack of an exact date for Yamauchi’s return of the evidence to the evidence control unit was no basis for objecting as to the chain of custody.
Accordingly, the record provides reasonable explanations for defense counsel’s failure to move to exclude these items of evidence on chain of custody grounds. The gaps appellant points to were not significant, and any suggestion that they resulted in tampering with the evidence is the “barest speculation.” (People v. Catlin, supra, 26 Cal.4th at p. 134.) “‘[T]he mere fact that counsel, had he [or she] chosen another path, “might” have convinced the court to issue a favorable evidentiary ruling, is not enough to carry defendant’s burden of demonstrating [incompetence]....’ [Citation.]” (People v. Lucas, supra, 12 Cal.4th at p. 445.)
In addition, by not obtaining an adverse ruling on such a motion, counsel was better able to argue the chain of custody implications to the jury at the close of the case. This was a reasonable trial strategy in this case and one of which he took full advantage. “[A]n objection on chain of custody grounds may be less productive for defendant than a decision to permit the prosecutor to establish a shoddy chain of custody that can be pointed out to the jury in the hope of giving rise to a reasonable doubt.” (People v. Lucas, supra, 12 Cal.4th at p. 446.)
Furthermore, because there was a “‘“reasonable certainty”’” (People v. Catlin, supra, 26 Cal.4th at p. 134) that evidence tampering did not occur, the trial court would clearly have overruled any objections. Therefore, appellant was not prejudiced by counsel’s failure to move to exclude the evidence he finds objectionable. We reject appellant’s claim of ineffective assistance of counsel.
IV. Security Fee
The People point out that the trial court failed to impose a $20 security fee for each conviction as required by section 1465.8, subdivision (a)(1). The record confirms that the trial court imposed only one $20 fee.
A trial court’s failure to impose mandatory fees and assessments is an unauthorized sentence that we must correct on appeal even though the issue was not raised by the parties in the trial court or on appeal. (See People v. Talibdeen (2002) 27 Cal.4th 1151, 1157; see also People v. Burnett (2004) 116 Cal.App.4th 257, 260.) The section 1465.8 court security fee is mandatory. (People v. Alford (2007) 42 Cal.4th 749, 754.) Accordingly, the trial court’s failure to impose one of the court security fees resulted in an unauthorized sentence that we must correct.
DISPOSITION
The judgment is modified to impose a court security fee of $40 under section 1465.8 instead of the $20 fee imposed and recorded on the abstract of judgment. In all other respects, the judgment is affirmed. The superior court is directed to send a corrected abstract reflecting this change to the Department of Corrections and Rehabilitation.
We concur: BOREN, P. J., DOI TODD, J.