Opinion
C087733
02-28-2020
THE PEOPLE, Plaintiff and Respondent, v. SYLVESTER GRANT, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. STK-CR-FE-1993-0010336)
In 1993, when defendant Sylvester Grant was in his 20's, he sexually assaulted "Q.," a 13-year-old girl. In December 1993, the district attorney filed a one-count felony complaint charging defendant with committing a lewd and lascivious act upon a child under the age of 14 (Pen. Code, § 288, subd. (a)). In 2017, approximately 24 years later, defendant was arrested and held to answer on that complaint. After a five-day trial, the jury found defendant guilty as charged. The trial court denied probation and sentenced defendant to the upper term of eight years.
Further undesignated statutory references are to the Penal Code.
On appeal, defendant argues that (1) the 24-year delay in prosecution violated his right to a speedy trial, (2) the loss/destruction of key evidence violated defendant's rights to due process, to confront witnesses, and to present a defense, and (3) he was wrongly convicted based in part on DNA evidence that should have been excluded due to gaps in the chain of custody. Defendant argues that the trial court's errors, individually and cumulatively, require reversal of the judgment. In addition, defendant argues that the fines, fees, and assessments imposed by the trial court must be reversed or stayed because there was no finding of defendant's ability to pay.
Although we reject defendant's challenges to the judgment, we have identified several sentencing errors in the oral pronouncement of judgment that require correction. Therefore, we shall modify the judgment to correct the sentencing errors, direct the trial court to amend the abstract of judgment to reflect the changes, and affirm the modified judgment.
FACTUAL AND PROCEDURAL BACKGROUND
The Sexual Assault
On November 17, 1993, the victim, Q., and her friend, Marion, agreed to accompany defendant and his friend "Moe" on an errand to the store. At the time, Q. and Marion were both 13 years old. Defendant and Moe were both in their 20's. Q. and Marion knew Moe because he lived in the same apartment complex as Marion. Neither Q. nor Marion were familiar with defendant, but their friend Diana recognized defendant as someone who often spent time with Moe.
Q., Marion, defendant, and Moe got into a car being driven by Moe and headed to the store. After driving about a block, Moe decided to stop by the apartment of his friend, Phillip. Phillip, an older blind man, lived around the corner from Marion in a different apartment complex. Moe would, from time to time, bring girls to Phillip's apartment.
Phillip made two statements to police—one on the day of the incident and another on March 2, 2018. The parties stipulated to his statements in lieu of his live testimony.
At Phillip's apartment, all four members of the group exited the car and entered Phillip's apartment. Q., Marion, Moe, defendant, and Phillip were the only people in the apartment.
As Marion, Moe, defendant, and Phillip sat in the living room and talked, Q. got up to use the bathroom, which was accessible only by walking through Phillip's bedroom. Shortly after Q. left the living room, defendant followed her into the bedroom. Moe, Marion, and Phillip stayed in the living room talking. Phillip remembered defendant and Q. being in the bedroom/bathroom alone for about 15 minutes.
While Q. was in the bathroom, defendant opened the door, saw Q., apologized, and left, shutting the door. Q. felt a "little uneasy," but continued using the bathroom.
When Q. was finished, she left the bathroom and walked back into Phillip's bedroom. Defendant was waiting for her in the bedroom.
Defendant grabbed Q., pushed her down on the bed, pulled down her pants, and had sexual intercourse with her. The room was dark, but Q. was able to see defendant's face. She could see that defendant had a scar and bad acne on his face. Q. testified that during the sexual assault, she hit the wall separating the bedroom from the living room. Marion testified that, from the living room, she heard a suspicious sound at one point, like something hitting a wall.
When the assault ended, Q. exited the bedroom, fled the apartment, and ran straight to the home of Diana, who lived in the adjacent apartment complex. Q., frantically crying, disclosed to Diana and Diana's mother that defendant had raped her. Diana's mother called the police.
The Police Investigation
Stockton Police Officer Mark McLaughlin responded and took statements from Q., Marion, and Diana's mother. He then drove Q. to the hospital, where a sexual assault examination was done and a "rape kit" was prepared. The rape kit included a dried sample of Q.'s blood, a sample of Q.'s saliva, Q.'s panties, pubic hair brushings, pubic hair strands, head hair strands, and four vaginal swabs.
During the sexual assault examination, Q.'s clothing was collected, including a purple jogging suit (top and bottom) and a bra. The jogging suit top, bottom, and bra were put in three separate sealed white bags and delivered to Officer McLaughlin, who took them to the police station and booked them as evidence.
That same evening, Officer McLaughlin went to Phillip's apartment and interviewed Phillip. While at the apartment, Officer McLaughlin also collected Phillip's bed sheets, bedspread, and blanket, which were taken to the police station and booked into evidence.
On November 23 and 24, 1993, Q. and Marion both separately identified defendant from a photo lineup prepared by Detective Teresa Standart.
The Complaint, Arrest, and Conviction
On December 21, 1993, the San Joaquin County District Attorney filed a one-count felony complaint charging defendant with committing a lewd and lascivious act upon a child under the age of 14 (§ 288, subd. (a)). A warrant for defendant's arrest was signed on January 6, 1994, but the record is silent as to whether defendant knew about the complaint or arrest warrant.
Section 288, subdivision (a) provides: "Except as provided in subdivision (i), a person who willfully and lewdly commits any lewd or lascivious act . . . upon or with the body, or any part or member thereof, of a child who is under the age of 14 years, with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of that person or the child, is guilty of a felony and shall be punished by imprisonment in the state prison for three, six, or eight years."
On November 22, 1994, defendant was arrested in Oklahoma for crimes committed there. The Stockton Police Department contacted the district attorney to discuss extradition. The district attorney decided not to extradite defendant and instructed the police to put the warrant into the "California only" system so it would be visible only to California law enforcement.
Defendant was not extradited from Oklahoma. Defendant subsequently was convicted for the crimes committed in Oklahoma and sentenced to nine years in Oklahoma state prison. After he was released in 1999, defendant continued to commit additional crimes, and serve additional time, in Oklahoma, as well as in Nevada. No efforts were made to attempt to bring defendant back to California.
Sometime between 1993 and 2017, pursuant to routine procedures, the Stockton Police Department destroyed the clothing that Q. was wearing when her sexual assault occurred, the bed linens from the apartment where the assault occurred, and the photos used for the photo lineup in which defendant was identified by Q. and Marion. In addition, in June of 2017, Diana's mother died.
In October 2017, defendant was arrested in California for petty theft. At that time, law enforcement was alerted to the outstanding arrest warrant related to this case. In connection with the arrest, the police collected buccal swabs from defendant. A criminalist then analyzed the genetic material collected on the buccal swabs and compared it against sperm found on one of the vaginal swabs and the panties stored in Q.'s 1993 rape kit. The criminalist concluded that the DNA profile obtained from defendant's buccal swabs matched the DNA profile of the sperm from Q.'s rape kit. The criminalist testified that this DNA profile was estimated to occur, at random among unrelated individuals, in approximately one in 78 octillion African-Americans, one in 840 octillion Caucasians, and one in 15 octillion Hispanics.
In addition, the criminalist testified that the DNA profile for nonsperm genetic material from the rape kit matched the DNA profile for Q.'s reference sample.
Defendant is African-American.
Defendant was held to answer on the 1993 complaint, and thereafter the People filed an information.
Defendant moved to dismiss the information arguing that his right to a speedy trial had been violated due to the People's failure to prosecute him for nearly 24 years. In his initial motion, defendant argued that he suffered prejudice from the delay in prosecution because (1) he lost the opportunity for concurrent sentencing, (2) he had no opportunity to exercise his rights under the interstate compact on detainers, (3) Diana's mother was dead and several other witnesses (namely, defendant, Moe, and Phillip) had diminished or nonexistent memory of the events of November 17, 1993, and (4) the physical evidence relating to the 1993 photo lineup was lost or destroyed. The People opposed the motion. After a hearing, the court denied the motion. The court found that there was significant delay in prosecution, but that the defense had not established actual prejudice.
Defendant renewed his motion to dismiss as part of a pretrial motion in limine, raising additional grounds for a finding of prejudice. Specifically, defendant argued he suffered actual prejudice because (1) he had been unable to contact witness Marion, (2) the clothing that Q. was wearing when the sexual assault occurred, and the bed linens collected from the apartment where the assault occurred, had been destroyed by the police, (3) defendant's faded memory prevented him from rebutting certain new evidence. The court again denied the motion.
Defendant was tried in a five-day jury trial, at which Q. testified. In the course of her testimony, Q. identified defendant as the person who sexually assaulted her in 1993.
Defendant did not testify at trial. His theory of defense at trial was that, due to the delay in prosecution, there were flaws with the quality of the evidence presented by the People. The defense focused on an alleged lack of foundation for the DNA samples linking defendant to the crime, and the destruction of the photo lineup used to identify defendant back in 1993.
After trial, the jury found defendant guilty as charged. The court denied probation and sentenced defendant to the upper term of eight years in prison. This appeal followed.
DISCUSSION
I
Right to Speedy Trial
Defendant argues that the 24-year delay after the filing of the criminal complaint violated his constitutional right to a speedy trial, requiring reversal of the judgment. We disagree. Although we share defendant's concerns about the delay in bringing him to trial, because defendant has failed to show actual prejudice, we conclude the trial court correctly denied his speedy trial claim.
As our Supreme Court explained in People v. Lowe (2007) 40 Cal.4th 937 (Lowe), "[b]oth the state and federal Constitutions guarantee criminal defendants the right to a speedy trial." (Id. at p. 942.) However, "the rights differ from each other in two significant respects." (Ibid.; see also People v. Martinez (2000) 22 Cal.4th 750, 754 (Martinez).)
The first difference concerns the point at which the right to a speedy trial attaches. (Lowe, supra, 40 Cal.4th at p. 942.) Under the federal Constitution, the right to a speedy trial attaches when an indictment or an information has been filed or the defendant has been arrested and held to answer. (Lowe, at p. 942.) Under the California Constitution, the filing of a felony complaint is sufficient to trigger the protection of the speedy trial right. (Lowe, at p. 942.)
The second difference is in the showing required for a defendant to demonstrate a speedy trial violation. (Martinez, supra, 22 Cal.4th at p. 755.) For the federal Constitution's speedy trial right, the United States Supreme Court has developed an ad hoc balancing test that requires consideration of four factors: the length of the delay, the reason for the delay, the defendant's assertion of the right, and the prejudice to the defense caused by the delay. (Barker v. Wingo (1972) 407 U.S. 514, 530 [33 L.Ed.2d 101, 117] (Barker).)
A defendant need not make an initial showing of prejudice as a prerequisite to relief under the federal speedy trial right. (Barker, supra, 407 U.S. at p. 533 [none of the four factors is "necessary or sufficient" to find a deprivation].) Under the federal Constitution, an " 'uncommonly long' " delay triggers a presumption of prejudice. (Martinez, supra, 22 Cal.4th at p. 755.) Thus, a defendant can establish a speedy trial claim without an affirmative showing that the government's want of diligence prejudiced the defendant's ability to defend against the charge. (Martinez, supra, 22 Cal.4th at p. 755.)
The length of the delay is to some extent a triggering mechanism. Until there is some delay which is presumptively prejudicial, there is no need to inquire into the other Barker factors. (Barker, supra, 407 U.S. at p. 530.) However, after delay of sufficient length as to be presumptively prejudicial, the prejudice is merely balanced with the other factors. (Id. at pp. 533-534; see also Doggett v. United States (1992) 505 U.S. 647, 651-652 [120 L.Ed.2d 520, 528].)
In contrast, under the state Constitution's speedy trial right, no presumption of prejudice arises from prearrest delay. (Martinez, supra, 22 Cal.4th at p. 755.) Only after a defendant has demonstrated actual prejudice does the burden shift to the prosecution to justify the delay. (People v. Jones (2013) 57 Cal.4th 899, 921 (Jones); Lowe, supra, 40 Cal.4th at p. 942; see also Dunn-Gonzalez, supra, 47 Cal.App.4th at p. 911 [if defendant fails to show prejudice, the court need not inquire into the justification for the delay since there is nothing to weigh such justification against].) Even lengthy delays spanning many years have been upheld where the defendant was unable to show actual prejudice. (See, e.g., People v. Alexander (2010) 49 Cal.4th 846, 874-877 (Alexander) [12-year delay]; Scherling v. Superior Court (1978) 22 Cal.3d 493, 506 [10-year delay].)
If both prejudice and justification are shown, the court must weigh the prejudicial effect against the justification for the delay. (Serna v. Superior Court (1985) 40 Cal.3d 239, 252 (Serna); People v. Dunn-Gonzalez (1996) 47 Cal.App.4th 899, 911 (Dunn-Gonzalez); People v. Egbert (1997) 59 Cal.App.4th 503, 511.) Generally, the stronger the justification for the delay, the greater the showing of prejudice required for dismissal. Where justification is insubstantial, even a minimal showing of prejudice may require dismissal. (Dunn-Gonzalez, supra, 47 Cal.App.4th at p. 915.)
Here, defendant complains that his right to a speedy trial was violated by the 24-year delay between the filing of the criminal complaint in December 1993 and his arrest in October 2017. Because the filing of a felony complaint did not trigger the federal speedy trial right, defendant's claim implicates only his speedy trial right under the state Constitution. (Lowe, supra, 40 Cal.4th at p. 942.) As described above, no presumption of prejudice springs from the prosecutorial delay; defendant has the initial burden of showing he suffered actual prejudice that deprived him of a fair adjudication on the merits. (Ibid.; People v. Parnell (1993) 17 Cal.App.4th 1609, 1613.) A defendant may be prejudiced by the loss of physical evidence or a material witness, or faded witness memories. (See, e.g., Jones, supra, 57 Cal.4th at p. 921.) However, a showing of actual prejudice cannot be based on bare conclusory statements or speculative claims about possible prejudice. (Shleffar v. Superior Court (1986) 178 Cal.App.3d 937, 946 (Shleffar); Crockett v. Superior Court (1975) 14 Cal.3d 433, 442; see also People v. Lewis (2015) 234 Cal.App.4th 203, 213.) General contentions of lost memories, witnesses, or evidence are insufficient to establish actual prejudice; defendant must show that the lost evidence has meaningfully impaired his ability to defend himself. (Martinez, supra, 22 Cal.4th at pp. 767-768.)
Whether a delay is prejudicial is a question of fact, and a trial court's finding will not be disturbed if it is supported by substantial evidence. (People v. Cave (1978) 81 Cal.App.3d 957, 965; Dunn-Gonzalez, supra, 47 Cal.App.4th at pp. 911-912; Alexander, supra, 49 Cal.4th at p. 874.) Here, defendant claims he was prejudiced by (1) the death of Diana's mother, (2) the diminished or faded memories of defendant, Moe, and Phillip, (3) the destruction of Phillip's bedding, and (4) the loss of the 1993 photo lineup. The trial court considered each of these claims and found defendant failed to show any actual prejudice. The trial court's findings are supported by substantial evidence.
In his opening brief, defendant also appears to claim prejudice due to changes in the protocol for processing rape kits. We decline to consider this claim because defendant failed to raise it before the trial court. In any event, defendant fails to articulate how any changes prejudiced his ability to present a defense.
The death of Diana's mother does not establish actual prejudice. Contrary to what defendant suggests, the death of a witness is not automatically prejudicial. Defendant has been unable to show that the death of Diana's mother impaired his ability to prepare a defense. (See Martinez, supra, 22 Cal.4th at pp. 767-768.) Diana's mother was not a percipient witness to the offense. Her testimony was not of crucial significance to the prosecution's case. Rather, she was one of three "fresh complaint" witnesses who could have been called to show that Q. promptly reported the sexual assault. (See People v. Brown (1994) 8 Cal.4th 746, 754-755.) Both of the other fresh complaint witnesses testified at trial. Even if Diana's mother had not died, it is not clear that she would have been called to testify since her testimony would have been cumulative. (Scherling v. Superior Court, supra, 22 Cal.3d at p. 506.) And if she were called, there is nothing to suggest that her testimony would have been helpful to the defense. Speculation that a missing witness might have been useful does not establish actual prejudice. (See United States v. Mays (9th Cir. 1977) 549 F.2d 670, 679-680.)
We reach a similar conclusion regarding defendant's claim that the faded memories of witnesses impaired his ability to prepare a defense. As described above, to establish actual prejudice, a defendant cannot simply rely on the possibility of prejudice inherent in any extended delay. (People v. Butler (1995) 36 Cal.App.4th 455, 464.) The defendant must make a showing of actual prejudice, supported by facts, not speculation. (Shleffar, supra, 178 Cal.App.3d at p. 946; Crockett v. Superior Court, supra, 14 Cal.3d at p. 442.) Rather than simply asserting that memories have faded, the defendant must show that memories could not have been refreshed, and that the loss of such evidence actually prejudiced the defendant's ability to present a defense. (Serna, supra, 40 Cal.3d at p. 250.)
In Serna, supra, 40 Cal.3d 239, our Supreme Court held that a defendant failed to show actual prejudice by submitting a declaration that he had "no independent recollection of his activities [on or about the day of the crime]." (Id. at p. 247.) "[T]he court need not accept a conclusory statement that the lack of recall demonstrates prejudice where no effort has been made to ascertain the basis for the charge. Lack of recall may establish prejudice, but only on a showing that the memory loss persists after reasonable attempts to refresh recollection." (Id. at p. 250.) No such showing was made here.
The only evidence offered by defendant is a declaration from counsel declaring, on information and belief, that defendant and Moe have "no memory" of the events relevant to this case. Such vague, conclusory statements are insufficient to support a conclusion that defendant was actually prejudiced by the delay. (People v. Sahagun (1979) 89 Cal.App.3d 1, 23-24 [general contentions made by counsel on information and belief inadequate to support conclusion that defendants were prejudiced by delay].)
Defendant also claims prejudice because witness Phillip has only a limited memory of the incident. However, the parties stipulated to a statement from Phillip, and defendant has failed to explain how he was prejudiced by the stipulated statement.
Defendant also has not shown prejudice based on the destruction of Phillip's bedding. Defendant has not shown that the bedding had any exculpatory value. He can only speculate that further investigation of the bedding might have uncovered potentially helpful evidence. (Shleffar, supra, 178 Cal.App.3d at p. 946 [speculation about prejudice because witnesses' memories have failed or because witnesses and evidence are now unavailable is insufficient to discharge defendant's burden]; see Alexander, supra, 49 Cal.4th at p. 875.)
Substantial evidence also supports the trial court's finding that no actual prejudice was demonstrated by the loss of the photo lineup. Detective Standart described the typical process by which she created and administered photo lineups. She testified that she would prepare a lineup of six photos consisting of the suspect and five other individuals who were similar to that suspect in terms of age, race, hairstyle, and other markings. She would advise the person viewing the photos that the suspect may or may not be in the lineup, and that they were not required to pick anyone. She would not allow others to intervene when she was conducting an identification. Using this process, Detective Standart showed a photo lineup with defendant and five other individuals to Q. and to Marion, and they both separately identified defendant.
Defendant argues that because the photo lineups were lost, he was denied the opportunity to impeach Q.'s and Marion's out-of-court identifications. However, defendant offers nothing but speculation that having the photos would have been helpful to his defense. (See People v. Cook (2007) 40 Cal.4th 1334, 1351.)
It is noteworthy that while the original lineup was destroyed, the prosecution had the names of the five other individuals who were included in the photo lineup. Defendant presumably could have attempted to track down the other individuals involved in the lineup. Defendant also had the opportunity to cross-examine Detective Standart about the missing originals and to argue his missing evidence theory to the jury.
In any event, the photo identification of defendant was not critical evidence. This was not a mistaken identification case. Defendant was no stranger to Q.; she met him before the attack. Defendant was a friend of Moe, had ridden in the backseat of the car with Q. on the way to Phillip's apartment, and had walked in on Q. while she was using the bathroom. There were only five people in the apartment at the time of the attack: Phillip, Q., Marion, Moe, and defendant. The evidence shows that Moe and Marion stayed in the living room talking to Phillip, while defendant followed Q. into the bedroom/bathroom area, where she was attacked. Although there were no lights on in the bedroom, Q. testified that she could see defendant's face at the time of the sexual assault. She could see the scar on his face and his acute acne. After the attack, Q. told Diana that Moe's friend, "Syl," had raped her.
Diana testified at trial that she recognized defendant as Moe's friend Syl. Q. also testified at trial and positively identified defendant as the man who assaulted her. In addition, sperm matching defendant's DNA was found inside Q.'s vagina and in the crotch of Q.'s panties. The odds of such a match occurring at random among unrelated African-American individuals was estimated to be approximately one in 78 octillion.
The photo lineup might have been useful to defendant in challenging the credibility of the out-of-court identifications of defendant, but its absence was not actually prejudicial to his defense because the out-of-court identifications were cumulative evidence establishing defendant's identity as the person who sexually assaulted Q. (People v. Conrad (1973) 31 Cal.App.3d 308, 317 [no prejudice from delay where identity not at issue].) Even without the photo lineup testimony, the evidence was overwhelming that defendant was Q.'s assailant. There was never any suggestion of a possible mistaken identification.
We conclude that substantial evidence supports the trial court's finding that defendant failed to show actual prejudice. And because we concur in the trial court's conclusion that defendant failed to show actual prejudice, we need not reach the question of whether the delay was justified. (Jones, supra, 57 Cal.4th at p. 921.)
II
Trombetta Motion
In the trial court, defendant filed a motion to dismiss under California v. Trombetta (1984) 467 U.S. 479 (Trombetta), arguing that his due process rights were violated by law enforcement's failure to preserve the clothing that Q. was wearing during the assault, the linens from Phillip's bed, and the photo lineup used for the out-of-court identifications. The trial court denied the motion, finding that defendant failed to show the items were destroyed in bad faith or that the items had any actual exculpatory value. On appeal, defendant challenges the trial court's ruling. We find no error.
Law enforcement agencies have a duty under the due process clause to preserve evidence that "might be expected to play a significant role in the suspect's defense." (Trombetta, supra, 467 U.S. at p. 488.) To fall within the scope of this duty, the evidence must (1) possess an exculpatory value that was apparent before the evidence was destroyed, and (2) be of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means. (Id. at p. 489; Alexander, supra, 49 Cal.4th at p. 878.)
The due process clause does not impose upon law enforcement an absolute duty to preserve all material that might be of conceivable evidentiary significance in a criminal prosecution. (Arizona v. Youngblood (1988) 488 U.S. 51, 58 [102 L.Ed.2d 281, 289]; People v. Wallace (2008) 44 Cal.4th 1032, 1083 (Wallace).) A failure to preserve potentially useful evidence is not a denial of due process unless the defendant can show bad faith on the part of law enforcement. (Wallace, supra, 44 Cal.4th at p. 1083; People v. Cooper (1991) 53 Cal.3d 771, 810-811.) Thus, when a defendant challenges the failure to preserve evidence of which " 'no more can be said than that it could have been subjected to tests' that might have helped the defense," failure to preserve such evidence will not violate due process unless the defendant can show bad faith on the part of the police. (People v. DePriest (2007) 42 Cal.4th 1, 42; People v. Lucas (2014) 60 Cal.4th 153, 221-222 (Lucas), overruled in part on other grounds in People v. Romero and Self (2015) 62 Cal.4th 1, 53, fn. 19.)
We review the trial court's decision on a Trombetta motion under the substantial evidence standard. (People v. Montes (2014) 58 Cal.4th 809, 837; People v. Duff (2014) 58 Cal.4th 527, 549.)
Defendant concedes there is no evidence of bad faith. He therefore must show that the lost/destroyed evidence had apparent exculpatory value prior to its destruction, and that the evidence was not otherwise reasonably obtainable by the defendant. (Lucas, supra, 60 Cal.4th at p. 221.) The trial court denied defendant's motion because he failed to establish that the lost/destroyed evidence had apparent exculpatory value at the time of its destruction. Substantial evidence supports this ruling.
The presence of bad faith necessarily turns on law enforcement's knowledge of the exculpatory value of the evidence at the time it was lost or destroyed. (Arizona v. Youngblood, supra, 488 U.S. at p. 56, fn. *.) A showing that evidence was disposed of in accordance with standard procedures in the ordinary course of business suggests good faith. (People v. Duff, supra, 58 Cal.4th at p. 550.)
As discussed above, there was no obvious or apparent exculpatory value to the bed linen or to the clothing that Q. was wearing at the time of the assault. If defendant's DNA were found on the items, it would tend to incriminate him. If his DNA were not found, it would say nothing.
The defense argued that the missing evidence deprived defendant of the ability to investigate the possibility of transfer DNA or some type of cross-contamination. However, the mere possibility that evidence ultimately could prove helpful to the defense is not enough to support a due process violation. (City of Los Angeles v. Superior Court (2002) 29 Cal.4th 1, 8; Lucas, supra, 60 Cal.4th at p. 234.) The exculpatory value of the evidence must have been apparent at the time it was destroyed. (City of Los Angeles v. Superior Court, supra, 29 Cal.4th at p. 8.) Here, it is not clear that the missing evidence even had potential exculpatory value. Defendant has not explained how there could be exculpatory value in finding defendant's sperm on Phillip's bed linens or Q.'s clothing, as would be necessary to support a DNA transfer or cross-contamination theory.
We reach the same conclusion regarding the missing photo lineup. The photo lineup did not have apparent exculpatory value because both witnesses (Q. and Marion) positively identified defendant as the suspect in the lineup. Perhaps some exculpatory value would have been apparent if the witnesses had failed to identify defendant in the lineup, but there is no readily apparent exculpatory value to the successful identifications of defendant. (Kordenbrock v. Scroggy (6th Cir. 1990) 919 F.2d 1091, 1103.)
Defense counsel may argue that the photo lineup had potential exculpatory value because the defense might have used the photos to argue that the out-of-court identification procedure was unduly suggestive. However, as discussed above, the standard is not whether the evidence was potentially useful to the defense. In the absence of bad faith, the failure to preserve potentially useful evidence does not constitute a denial of due process. (Wallace, supra, 44 Cal.4th at p. 1083.) Defendant's claim that the photo lineup had exculpatory value is based only on speculation. The photo lineup had no obvious or apparent exculpatory value at the time it was destroyed. Thus, the trial court properly denied defendant's Trombetta motion.
III
Chain of Custody
Defendant argues that he was wrongly convicted based in part upon DNA evidence that should have been excluded due to gaps in the chain of custody. We again disagree.
A. Additional Background
On the evening of November 17, 1993, after the sexual assault, Officer McLaughlin took Q. to the hospital, where a sexual assault examination was performed and a rape kit prepared. The medical personnel who performed the sexual assault examination did not testify at trial. Instead, the prosecution called Vanessa Maes, a nurse and the current program manager for the sexual assault forensic exam team at San Joaquin County General Hospital.
Maes testified that she had worked at the hospital since about 2002, had been a sexual assault examiner since 2008, and had been the sexual assault team program manager since 2013. She testified that the purpose of a sexual assault examination is to collect and preserve evidence of sexual assault. Guided by the history obtained from the patient, examiners will look for anything that could have potential DNA, such as semen. For vaginal penetration, a sexual assault examination would include vaginal swabs, which are collected from the vaginal vault at the back of the vagina. Examiners also collect reference DNA from the victim and the victim's underwear. Slides are prepared from the samples that are collected, and they are dried, packaged, sealed, signed, and dated, and then logged in and stored in the evidence refrigerator until law enforcement picks them up.
Maes testified that the procedures for processing rape kits changed in 2016 because of the need to comply with new laws demanding "rapid DNA processing." She testified that while a "standard rape kit" is still prepared, one of the "most probative" swabs is now sent directly from the hospital to the crime lab for rapid DNA testing. Maes admitted she was not working as a nurse in 1993, and she did not know the person who performed Q.'s sexual assault examination.
Although Officer McLaughlin did not witness the examination, he also testified to the standard procedures that would have been used to prepare a rape kit, store it, and transport it from the hospital to the police department. He explained that hospital staff collect any blood samples, saliva samples, vaginal swabs, and clothing that they believe may contain evidence related to the sexual assault. All of the items together constitute the "rape kit," which is sealed, labeled, and stored in a freezer at the hospital until it is picked up by the police and booked into evidence.
Based on a custody log, Officer McLaughlin testified that Q.'s rape kit was picked up from the hospital and transported to the police department on November 24, 1993, by an "Officer Pham." Officer Pham did not testify at trial.
Detective Standart testified that on December 1, 1993, she collected the sealed rape kit from the police department and transported it to the nearest crime lab. From there, Q.'s rape kit was transported by private mail courier to the Eureka crime lab.
Toby Baxter, who worked as a senior criminalist at the Eureka crime lab at the end of 1993, testified that the crime lab received Q.'s rape kit on December 17, 1993. He testified that when he received it, the rape kit consisted of a dried bloodstain, a pair of panties, a saliva sample, four vaginal swabs, and a number of smear slides prepped during the exam. The kit also included pubic hair brushings, pubic hair standards, and head hair standards.
Baxter testified that he performed tests on one of the vaginal swabs, a smear slide, and the inside crotch area of Q.'s panties. In each case, he found semen. Baxter testified that because he obtained reportable results, he took relevant samples, sealed them, and preserved them in the crime lab's freezer. According to Baxter, he kept the unused vaginal swabs, plus samples of Q.'s saliva, Q.'s blood, Q.'s hair, and cuttings from the crotch of Q.'s panties. The remaining items were returned to the crime lab in San Joaquin County.
Bob Cheseldine, a senior criminalist assigned to the DNA and biological unit at the Ripon crime lab, testified that in November 2017 he received the buccal swabs taken from defendant as well as the samples of genetic material preserved by the Eureka crime lab. The samples he received included Q.'s saliva reference sample, Q.'s blood reference sample, the cutting of Q.'s panties, and the vaginal swabs. He performed genetic testing on the cutting of the panties, one vaginal swab, and the blood reference sample. He also performed testing on the buccal swabs collected from defendant in 2017.
Detective Pilar Pulliam testified that she collected the buccal swabs from defendant, sealed them in an envelope, booked them into evidence, and transported them to the crime lab in Ripon for testing.
Cheseldine testified that he found sperm cells on a cutting from the crotch of Q.'s panties and on Q.'s vaginal swab. Comparing the DNA profile of the sperm against the buccal swab reference sample, Cheseldine found they matched. Using statistics to determine how rare the DNA profile would be in the population, Cheseldine testified that the DNA profile is estimated to occur, at random among unrelated individuals, in approximately one in 78 octillion African-Americans, one in 840 octillion Caucasians, and one in 15 octillion Hispanics. In the cutting from the panties, Cheseldine also found nonsperm DNA that matched the reference DNA sample for Q.
At trial, defendant moved to strike the DNA portion of the evidence, arguing that the chain of custody was not sufficient to establish that the items are what they were represented to be. The trial court denied the motion, accepting the People's argument that the gaps in the chain of custody go to weight, not admissibility.
B. Analysis
"In 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 (Catlin).)
We review a trial court's exercise of discretion in admitting evidence over a chain of custody objection for abuse of discretion. (Catlin, supra, 26 Cal.4th at p. 134.)
Here, defendant contends the trial court abused its discretion in admitting the DNA test results because of gaps in its chain of custody from the time of the sexual assault examination through its arrival at the crime lab. Defendant contends these gaps exist because the prosecution failed to call the doctor or nurse who performed the examination or the officer who picked up the rape kit from the hospital. As a result, defendant contends there is no competent evidence establishing who took the DNA samples or whether the samples were properly preserved and stored at the hospital. We find no abuse of discretion.
Defendant also argues there is no evidence explaining how the samples traveled from the hospital to the crime lab. Not true. Officer McLaughlin testified that Q.'s rape kit was picked up from the hospital and transported to the police department by Officer Pham. Detective Standart testified that she took the rape kit from the police department to the nearest crime lab. Baxter testified that the rape kit was transferred via private mail courier from the crime lab in San Joaquin County to the crime lab in Eureka. The fact that Officer Pham did not testify at trial affected the weight of the evidence, not its admissibility.
" 'While a perfect chain of custody is desirable, gaps will not result in the exclusion of the evidence, so long as the links offered connect the evidence with the case and raise no serious questions of tampering.' " (Catlin, supra, 26 Cal.4th at p. 134, quoting Mendez, Cal. Evidence (1993) § 13.05, p. 237; see also Wallace, supra, 44 Cal.4th at p. 1061.) Here, taking all the circumstances into account, the evidence presented at trial provided "reasonable certainty" that the DNA evidence is what it was represented to be and was not substituted, tampered with, or altered in any material respect.
The evidence shows that on November 17, 1993, shortly after the sexual assault, Q. was taken to the hospital, where medical personnel performed a sexual assault examination and prepared a rape kit. Although there are gaps in the evidence pertaining to who collected the DNA evidence and how it was stored at the hospital, there is testimony describing the standard procedures used by medical personnel to create and store a rape kit before delivery to the police. Because medical personnel have "no 'skin in the game' when collecting biological samples," it is proper to presume that official duties were regularly performed absent some evidence to the contrary. (People v. Hall (2010) 187 Cal.App.4th 282, 296; see also Baker v. Gourley (2000) 81 Cal.App.4th 1167, 1172-1173.)
Moreover, the circumstances of this case substantially lessen any risk that the DNA evidence was substituted, tampered with, or altered. According to the chain of custody log, approximately one week after the DNA evidence was collected, it was transported from the hospital to the police department. Approximately one week after that, Detective Standart collected the sealed DNA evidence from the police department and transported it to the nearest crime lab, which transferred it to the Eureka crime lab. The Eureka crime lab tested the evidence and found semen. The Eureka crime lab then resealed and preserved that evidence until it was transferred to the Ripon crime lab in 2017 for purposes of comparing the DNA of the sperm in the rape kit to defendant's buccal swab reference sample.
The DNA of sperm found on the vaginal swab and the inside crotch of the panties matched defendant's buccal swab reference sample. That DNA profile was estimated to occur, at random among unrelated individuals, in approximately one in 78 octillion African-Americans. This evidence undercuts any argument that the rape kit samples were substituted, tampered with, or altered. Defendant cannot explain how anyone involved in the chain of custody could have obtained sperm with his DNA, except by having it collected as part of Q.'s rape kit at the hospital. To accept defendant's arguments about the risks of transferred DNA or tampered DNA requires us to entertain theories supported only by speculation.
The fact that criminalists were able to obtain usable DNA from one of the vaginal swabs and the crotch of Q.'s panties also undermines any suggestion that the rape kit was not properly stored at the hospital because the evidence shows that sperm, if not preserved, remains viable only for about five days. Here, the rape kit was stored properly at the hospital for about seven days.
Defendant's reliance on People v. Jimenez (2008) 165 Cal.App.4th 75 is misplaced. As the appellate court in Hall observed, the chain of custody testimony in Jimenez was inadequate to show to a reasonable certainty that the DNA sample had not been substituted because of the "high level of ease" with which the crime scene DNA and the reference sample DNA could have been substituted for one another (or mislabeled) in that case. (People v. Hall, supra, 187 Cal.App.4th at p. 296.) That risk is not present here. Defendant's buccal swab DNA could not easily have been substituted for the sperm collected from the victim's vaginal swab and panties.
The trial court did not abuse its discretion in finding that the prosecution met its burden of establishing to a reasonable certainty that the DNA evidence in the rape kit was not substituted or altered, and that any gaps in the chain of custody go only to its weight.
IV
Confrontation Clause
Defendant also contends that the admission of the DNA evidence without the testimony of certain witnesses involved in the chain of custody violated his Sixth Amendment right to confront witnesses against him. The People argue that defendant forfeited this claim by failing to raise it below. We agree. Defendant points to nothing in the record (indeed, he fails to address the argument in his reply brief), and we have found nothing to show that he raised an objection on confrontation clause grounds. The issue is therefore deemed forfeited. (People v. Tafoya (2007) 42 Cal.4th 147, 166 [defendant forfeited confrontation clause challenge by failing to object to trial court's evidentiary ruling on that ground]; People v. Lewis and Oliver (2006) 39 Cal.4th 970, 1028, fn. 19 [defendant forfeited confrontation clause claim by failing to raise it at trial].)
V
Cumulative Error
Even if no single error required reversal, defendant argues that the cumulative effect of the asserted errors requires reversal of his conviction. Because we have found no errors, his claim of cumulative error fails. (People v. Bradford (1997) 15 Cal.4th 1229, 1382.)
VI
Imposition of Fines and Fees
Following defendant's conviction for one count of committing a lewd or lascivious act against a minor under the age of 14 (§ 188, subd. (a)), the trial court sentenced defendant to the upper term of eight years. The trial court also ordered defendant to pay a $10,000 restitution fine (§ 1202.4), a $10,000 parole revocation fine (§ 1202.45), a $1,000 surcharge (no statute specified), a $1,000 child abuse prevention restitution fine (§ 294), a $300 sex offender fine (§ 290.3), a $40 court operations assessment (§ 1465.8), and a $30 court facilities assessment (Gov. Code, § 70373). Defense counsel requested that the court strike the two $10,000 restitution fines on the ground defendant is indigent. The trial court refused, noting, "[I]t's a lengthy sentence and can be paid from prison earnings."
Relying on People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas), defendant argues that it was unconstitutional for the trial court to impose any fine, fee, or assessment without determining that defendant has the present ability to pay, with a special emphasis on the two $10,000 fines. The People do not oppose an ability to pay hearing with regard to the court operations and court facilities assessments under section 1465.8 and Government Code section 70373, but argue that Dueñas was wrongly decided and should not be followed with respect to the restitution fines.
We agree that Dueñas was wrongly decided, not just with regard to the restitution fines, but also the civil assessments.
In Dueñas, an unemployed mother with cerebral palsy surviving on public assistance, lost her driver's license because she was unable to pay $1,088 assessed against her for three juvenile citations. (Dueñas, supra, 30 Cal.App.5th at pp. 1160-1161.) Thereafter she received multiple convictions related to driving with a suspended license, each accompanied by jail time and additional fees that she could not pay. (Id. at p. 1161.) After a fourth conviction of driving with a suspended license, the court placed Dueñas on probation and ordered her to pay mandatory fines and assessments under section 1465.8, section 1202.4, and Government Code section 70373. (Id. at pp. 1161-1162.) Dueñas asked the trial court to hold a hearing to determine her ability to pay those costs. (Id. at pp. 1162-1163.) Despite Dueñas's uncontested declaration establishing her indigence, the trial court ruled that the assessments were mandatory and that Dueñas had not shown " 'compelling and extraordinary reasons' " to waive the restitution fine. (Id. at p. 1163.)
The Court of Appeal reversed, holding that due process requires the trial court to ascertain a defendant's present ability to pay before imposing the court assessments and fines. (Dueñas, supra, 30 Cal.App.5th at p. 1164.) In support of its due process rationale, the court analogized the assessments imposed on Dueñas to court fees imposed on civil litigants, which indigents are not required to pay. (Id. at pp. 1165-1166.) The court further reasoned that although the Legislature did not intend the assessments to be punitive, imposing unpayable assessments has "devastating consequences" on indigent defendants by subjecting them to a civil judgment for nonpayment and the associated consequences that flow therefrom. (Id. at p. 1168.) These additional consequences suffered only by indigent persons in effect transform the assessments into "additional punishment" based solely on the defendant's inability to pay, which the court found to be "fundamentally unfair." (Id. at p. 1168.)
As for the restitution fine, the court held that it too requires an ability to pay determination. (Dueñas, supra, 30 Cal.App.5th at p. 1164.) Although restitution fines are intended to be additional punishment, the court held that such fines, when imposed on a probationer, punish indigent defendants in a way they do not punish wealthy defendants, namely, by limiting their rights to mandatory expungement under section 1203.4, subdivision (a)(1). (Dueñas, at pp. 1170-1171.) The court noted that probationers who pay their fines are entitled to have their charges dismissed under section 1203.4, subdivision (a)(1), whereas defendants who cannot pay, "[a]t best, . . . can try to persuade a trial court to exercise its discretion to grant them relief." (Dueñas, at pp. 1170-1171.) This, too, the court held, is " 'fundamentally unfair.' " (Id. at p. 1171.)
Reactions to Dueñas have been mixed. Although some courts have followed its reasoning, others have strictly limited it to its facts or simply found that it was wrongly decided. Having reviewed these opinions, we agree with those opinions that have disagreed with Dueñas and therefore declined to follow it. (See People v. Hicks (2019) 40 Cal.App.5th 320, 322, review granted Nov. 26, 2019, S258946 (Hicks); People v. Aviles (2019) 39 Cal.App.5th 1055, 1067-1069, review den. Dec. 11, 2019, S258563 (Aviles); People v. Caceres (2019) 39 Cal.App.5th 917, 926-929, review den. Jan. 2, 2020, S258720 (Caceres); see also People v. Gutierrez (2019) 35 Cal.App.5th 1027, 1034-1041 (conc. opn. of Benke, J.), review den. Sept. 18, 2019, S256881 (Gutierrez); People v. Santos (2019) 38 Cal.App.5th 923, 935-940 (dis. opn. of Elia, J.) (Santos).)
We first observe that the facts in this case bear no similarity to the unique factual circumstances in Dueñas. Dueñas faced hardship because she was caught in a cycle of repeated criminal violations stemming from the loss of her driver's license. (Dueñas, supra, 30 Cal.App.5th at pp. 1161-1162.) Her license was suspended because she was too poor to pay her juvenile citations. She then continued to offend because the escalating assessments and fines prevented her from recovering her license. (Ibid.) On these facts, the court concluded that Dueñas was being punished solely because of her poverty. (Id. at pp. 1163, 1166-1167, 1171.)
We note that legislation enacted in 2017 ended the practice of suspending driver's licenses for failure to pay fines and fees. (See Veh. Code, § 40509; Stats. 2017, ch. 17, § 53 (Assem. Bill No. 103 (2017-2018 Reg. Sess.)), eff. June 27, 2017.) We further note that the legislative and executive branches of state government are focused on the fairness issues raised in Dueñas, and appear committed to finding a solution. (<https://www.gov.ca.gov/wp-content/uploads/2019/10/AB-927-Veto-Message-2019.pdf> [as of Feb. 28, 2020], archived at <https://perma.cc/BSQ2-Z7PH>.)
There is no similar harm to defendant here. Defendant is suffering fines and assessments because he sexually assaulted a 13-year-old girl, not because he is trapped in a vicious cycle of debt due to poverty. Even if defendant does not pay the assessments and fines imposed by the trial court, he will suffer none of the "cascading consequences" faced by Dueñas. (Caceres, supra, 39 Cal.App.5th at pp. 928-929; Dueñas, supra, 30 Cal.App.5th at p. 1163.)
In any event, we do not find the reasoning of Dueñas persuasive. We agree with the courts in Hicks and Aviles, and the concurring and dissenting opinions in Gutierrez and Santos, that the Dueñas approach is fundamentally flawed in concluding that the due process doctrine of "fundamental fairness" requires courts to conduct a preassessment ability-to-pay determination before imposing fines and fees on a criminal defendant. (Hicks, supra, 40 Cal.App.5th at p. 329, review granted Nov. 26, 2019, S258946; Aviles, supra, 39 Cal.App.5th at pp. 1067-1069; Gutierrez, supra, 35 Cal.App.5th at pp. 1034-1041 (conc. opn. of Benke, J.); Santos, supra, 38 Cal.App.5th at pp. 935-940 (dis. opn. of Elia, J.).) Whether or not it is fundamentally unfair in a constitutional sense for a state to deprive a person of a driver's license because of that person's inability to pay a fine or fee, we are not persuaded that the mere potential an indigent defendant might be unable to pay a debt (and therefore suffer associated collection practices) rises to the level of a due process violation, especially where the defendant has not yet failed to pay or suffered any sanctions for doing so.
To the extent imposing potentially unpayable fees or fines on indigent defendants raises constitutional concerns, we agree that such challenges are properly analyzed under the excessive fines clause, which limits the government's power to extract payments as punishment for an offense. (Aviles, supra, 39 Cal.App.5th at p. 1071.) Here, because defendant has not raised an excessive fines clause challenge, we do not address whether the fines, fees, and assessments imposed on him are unconstitutionally excessive. We simply conclude that defendant's reliance on Dueñas is misplaced. Therefore, we affirm this aspect of the judgment.
Although we reject defendant's Dueñas challenges, based on our review of the record, we have identified several sentencing errors that require correction.
First, the court erroneously imposed the $1,000 child abuse prevention restitution fine under section 294. Defendant's conviction is not one of the enumerated offenses that triggers application of that section. (See § 294.) We shall modify the judgment to strike this fine.
Because this fine was not included in the abstract of judgment, it is unnecessary for us to direct the trial court to amend the abstract of judgment to reflect this change in the judgment.
Second, the court imposed a "ten percent surcharge" without specifying any statutory basis for doing so. (People v. Hartley (2016) 248 Cal.App.4th 620, 637; People v. Hamed (2013) 221 Cal.App.4th 928, 939-940; People v. High (2004) 119 Cal.App.4th 1192, 1197.) Finding no statutory justification for this surcharge, we shall modify the judgment to strike it and direct the trial court to amend the abstract of judgment to reflect this change.
Third, the court erroneously imposed a $10,000 parole revocation fine under section 1202.45. Because the statute authorizing that fine was enacted after the date the crime was committed, imposing that fine violated defendant's ex post facto rights. (People v. Callejas (2000) 85 Cal.App.4th 667, 676; accord, People v. Souza (2012) 54 Cal.4th 90, 143; see also People v. High, supra, 119 Cal.App.4th at pp. 1195-1197.) Thus, we shall modify the judgment to strike the parole revocation fine and direct the trial court to amend the abstract of judgment.
Finally, the $300 fine imposed under section 290.3 must be reduced because the amount of the fine violates ex post facto laws. (People v. Valenzuela (2009) 172 Cal.App.4th 1246, 1248.) Section 290.3 was amended in 2006 to raise the amount of fines to $300 for a first offense and $500 for each subsequent offense. (Prop. 83, § 7, eff. Nov. 8, 2006.) Before 1995, the fines were $100 for a first conviction and $200 for each subsequent conviction. (See, e.g., Stats. 1992, ch. 1338, § 1 (Sen. Bill No. 1184), eff. Jan. 1, 1993.) We shall modify the judgment to reduce the amount of this fine to $100 (plus penalty assessments) and direct the trial court to amend the abstract of judgment accordingly.
DISPOSITION
The judgment is modified to correct the errors in the oral pronouncement of judgment, as stated herein. The judgment is affirmed as modified. The trial court is directed to prepare an amended abstract of judgment and forward a certified copy to the Department of Corrections and Rehabilitation.
KRAUSE, J. We concur: RAYE, P. J. BLEASE, J.