Opinion
C055162.
1-6-2009
THE PEOPLE, Plaintiff and Respondent, v. LAMEL ADAMS, Defendant and Appellant.
Not to be Published
Following a jury trial, defendant Lamel Adams was convicted of first degree residential burglary (Pen. Code, § 459), and two counts of forcible oral copulation during a residential burglary (§§ 288a, subd. (c)(2), 667.61, subds. (d)(4) & (e)(2)). As to one of the oral copulation counts, it was also found true he had personally used a knife during the commission of the offense. (§§ 667.61, subd. (e)(4), 12022.3, subd. (a)). In bifurcated proceedings, it was also found true defendant had previously been convicted of five serious felonies (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)). Defendant appeals his current convictions, contending the trial court: (1) prejudicially erred in denying his motion to suppress the DNA results of biological samples taken from him in 1994 as a convicted offender and in 2006 when he was in custody; (2) abused its discretion in refusing his request for a Kelly hearing on the admissibility of the frequency of match statistics in a "cold hit"; (3) abused its discretion in refusing his request for a Kelly hearing on the matter of whether the scientific community accepts the determination of DNA matches from mixed source DNA samples via the process of "subtracting out" the victims known profile and "calling" the remaining profile the suspects and the process of validating the 15 markers by a comparison of the ratios of "peak heights" between the markers; and, (4) denied defendants due process rights in denying his Kelly "Prong Three" challenges to the manner in which the DNA mixture was interpreted and the frequency of match statistic was calculated. We shall affirm.
Undesignated statutory references are to the Penal Code.
People v. Kelly (1976) 17 Cal.3d 24 (Kelly).
STATEMENT OF FACTS
M. L. and her family lived on Young Street. On November 8, 2005 M. L. was at home with her three-year-old and six-year-old daughters. The younger child was asleep in the living room and the six-year-old, D. L., was in M. L.s bedroom. M. L. was doing laundry, heard a noise in the garage area and went to lock the garage door. As she walked to the kitchen, defendant pushed open the door, entered the apartment, grabbed her by the hair and pulled her into the bedroom. On the way to the bedroom, he made a slashing motion with his finger across his neck. D. L. asked what was going on and defendant told her to be quiet. Defendant pushed D. L. and M. L. to the bed.
With M. L. sitting on the corner of the bed, defendant pulled down his pants and forced M. L. to masturbate him and to orally copulate him. When M. L. tried to refuse, he grabbed her by the hair and raised his hand as if he was going to hit her. After forcing M. L. to orally copulate him, defendant took out a small knife, made a slashing motion with it across his neck and held it against M. L.s arm He pre-ejaculated in her hand. Defendant then forced M. L. to masturbate and orally copulate him again.
Defendant then left through the carport door. M. L. followed to ensure defendant did not harm her three-year-old. She saw defendant walk down to Young Street and turn right. M. L. went to her neighbors and called 9-1-1. M. L. also called her aunt. She was upset and crying as she told her aunt what had happened.
M. L. described her attacker as an African-American male, 5 feet, 10 inches tall and weighing approximately 130 to 140 pounds. He had short hair, a moustache and light beard. He was wearing black clothes, a red bandana around his neck and a two-inch long silver medallion. The medallion had an image of a person or "horns." He also had blood on the left side of his mouth.
M. L. was taken to U.C. Davis Medical Center and examined by nurse practitioner, Leslie Schmidt. Schmidt testified it is possible to detect the presence of sperm from pre-ejaculate, even if ejaculation has not occurred. Schmidt collected two swabs from M. L.s mouth, swabs from both hands and a control swab from her forearm.
In November, 2005, defendants mother-in-law, Venus Whitfield, lived on Young Street, at an apartment across the street from M. L.s. Defendant went to his mother-in-laws apartment on November 8, 2005. He was wearing a black t-shirt and sweat pants, a red bandana and a silver medallion. He also had a bloody lip. After falling asleep on Whitfields couch, defendant awoke and told her "[The] police is lookin for me for robbery and rape." A few hours later, defendant and Whitfield walked to a corner store. Police officers were gathered at the complex across the street. Surveillance videos from the store showed defendant wearing black pants, a black shirt and a silver medallion.
Whitfield admitted she had prior felony convictions for armed robbery, burglary, assault, sexual assault, mayhem, rape and possession of a controlled substance.
The next day, Sheriffs Deputies Gallagher and Patton were canvassing the area showing a police sketch of M. L.s attacker. They showed the sketch to Whitfield and she suspected they were looking for defendant. She told them the sketch was inaccurate, as defendant was depicted as too thin, and then she took them to her apartment and gave them defendants red bandana, a phone battery and a temporary drivers license.
Using the oral swabs taken from M. L., criminalist Jeffery Herbert conducted DNA analysis. One swab contained a small amount of sperm, while the other had none. The DNA sample with sperm contained both male and female DNA, which is very common in sexual assault cases.
To determine the second contributor (not M. L.) to the sperm faction sample, Herbert used peak heights and peak height ratios at some of the markers. Peak heights are measured in relative fluorescent units (RFUs) and are indicative of the quantity of DNA present in a sample. In general, when there are no more than two peaks at a locus and the peak heights are balanced, the sample is from a single source. Conversely, a peak height ratio of less than 70 percent or the existence of more than two peaks at a locus indicates the sample is a mixture from more than one source.
Balanced means that when the height of the shorter peak is divided by the height of the longer peak, the ratio of height between the two peaks is 70 percent or greater.
Using the DNA reference profile from M. L.s blood sample and subtracting out her profile from the mixed source sample, the remaining DNA profile was attributed to the suspect. Defendants known DNA profile matched that of the suspect at 14 markers and he was included in the 15th marker. Assuming individuals are unrelated, defendants DNA profile would occur at random in approximately one in 23 quintillion of the African-American population, one in 17 quintillion of the Caucasian population and one in one quintillion of the Hispanic population.
The parties stipulated defendant did not have an identical twin.
A quintillion has 18 zeroes after it.
PROCEDURAL HISTORY
Defendant was accused of first degree residential burglary (§ 459, Count One) and two counts of forcible oral copulation (§ 288a, subd. (c)(2), Counts Two and Three). It was further alleged as to Counts Two and Three that defendant had used a knife in committing the offense causing the offense to be a serious felony (§§ 12022.3, subd. (a), 1192.7, subd. (c)(23)), that he personally used a deadly weapon in the commission of the offense (§ 667.61, subd. (e)(2)) and that he committed the offenses in the commission of a burglary (§ 667.61, subd. (d)(4)). It was also alleged defendant had five prior serious felony convictions. (§§ 667, subds. (a), (b)-(i), 1170.12).
Defendant filed a motion to suppress all DNA evidence relating to him, as the fruit of an unlawful seizure. A biological sample was taken from defendant on two separate occasions. The first was in 1994, pursuant to former section 290.2, when he was incarcerated at the Mule Creek State Prison. The second was taken in 2006, when defendant was arrested in relation to a carjacking and car chase.
While in custody on the carjacking case, defendant was Mirandized. After indicating he did not want to speak to the detective and with some mild prompting from the detective, defendant spoke with the detective for about one hour. Ultimately, he agreed the officer could take a buccal swab saliva sample. In his motion to suppress, defendant contended taking the 1994 blood sample was unconstitutional as the statute authorizing it was unconstitutional. Defendant also contended the buccal swab saliva sample was taken in violation of his Miranda rights, thus vitiating his apparent consent to the swab being taken.
Miranda v. Arizona (1966) 384 U.S. 436 (Miranda).
This motion was denied. The court found the 1994 blood sample was a lawful seizure under a constitutional statutory scheme. After having watched the interview of defendant and viewing the totality of the circumstances, the court found that although the detective did not "strictly adhere" to Miranda and cease the interrogation upon defendants invocation of his right to remain silent, there was nothing coercive or overbearing in the detectives conduct. Thus, the court found the violation of Miranda did not render defendants consent to the taking of the sample invalid. The court also noted there was "ample basis for the Court ordering providing the sample based on the evidence that was known to law enforcement at that time, as well as the fact that he had previously been required . . . to submit samples for the purpose of the DNA database." Accordingly, the court found the doctrine of inevitable discovery applied, in that if defendant had not consented to the procedure, law enforcement would have been able to obtain the sample through other means.
Defendant also filed a number of motions requesting various components of the DNA evidence be excluded under Kelly. Defendant moved to exclude evidence from the "Identifiler" DNA test, arguing under prong one of Kelly that the test had not been identified as reliable and reproducible in the scientific community. Defendant moved to exclude evidence of the "Cold Hit" statistics, also under prong one of Kelly, arguing the statistical interpretation of DNA evidence when it relates to a search through a database, as opposed to a random population, has not been generally accepted by the scientific community. Defendant made a motion to exclude "peak height" interpretation or "subtraction" interpretation of DNA evidence under prong one of Kelly, contending that an interpretation method in which alleles matching the victim are subtracted from a mixed DNA sample to arrive at a resulting DNA profile has not been accepted as reliable and reproducible in the scientific community. Each of these motions had attached to it various scientific articles on the subjects. Defendant also filed supplemental authorities and exhibits in support of his motion to exclude the cold hit statistics. The parties agreed with respect to the motions to exclude the DNA evidence, there was no "need to proceed with any further substantive evidentiary hearing but simply the Court can take into consideration the offers and the factual scenarios set forth in the briefing of the parties."
In Kelly, the California Supreme Court established a three-pronged test for the admissibility of scientific evidence. The proponent of the evidence must establish: (1) the technique has gained general acceptance in its field; (2) the testimony regarding the technique and its application is offered by a properly qualified expert; and (3) correct scientific procedures were followed in this particular case. (People v. Venegas (1998) 18 Cal.4th 47, 78, citing People v. Kelly, supra, 17 Cal.3d at p. 30.)
Based on the parties agreement, the court reviewed the materials submitted on the motions and found the Identifiler kit did not involve new or novel scientific techniques. Accordingly, that motion was denied. The court noted there was a reference in that motion to a prong three hearing, but defense counsel agreed that they were not "seeking further evidentiary hearing regarding prong three and can reserve those issues for evaluation of the weight of the evidence to be presented." As to the motion regarding cold hit statistics, the court noted that the People were not seeking to utilize that raw data, "but rather they are seeking to present the statistical probability of finding the DNA profile from persons selected at random in the population." Based on that understanding, the court found the statistical method involved, specifically the product rule, had been found to be a generally accepted scientific principle and denied the motion to exclude. With respect to the final motion to exclude evidence regarding peak height interpretation, the court denied the motion, finding the challenges raised by the defense went to the weight of the evidence rather than admissibility.
Following jury trial, the jury found defendant guilty of the Counts One, Two and Three. The jury found the burglary enhancement allegations true as to both Counts Two and Three, but found the weapons allegation true only as to Count Three. In bifurcated proceedings on the prior conviction allegations, defendant admitted the allegations. Defendants Romero motion was denied. Defendant was sentenced to an indeterminate term of 150 years to life, plus a determinate term of 14 years.
People v. Superior Court (Romero) (1996) 13 Cal.4th 497.
DISCUSSION
I
Defendant contends the trial court erred in denying his motion to suppress the DNA evidence based on the biological samples obtained both in 1994 and in 2006. Defendant argues, as he did in the trial court that he did not consent to the draw of either sample, that the "alleged consent to a seizure of blood in 1994 was a mere submission to authority" and the 2006 buccal swab was given in submission to a show of authority and in violation of his Miranda rights. Defendant also contends the 1994 blood draw was an illegal seizure based on an unconstitutional statute. Defendant is wrong.
We turn first to the 1994 blood draw. Fourth Amendment challenges to section 295 or the predecessor statute 290.2, were rejected in People v. King (2000) 82 Cal.App.4th 1363, 1369-1378 (King) and People v. Adams (2004) 115 Cal.App.4th 243, 255-259 (Adams). This court rejected a constitutional challenge to section 295, as it applied to death row inmates, in Alfaro v. Terhune (2002) 98 Cal.App.4th 492, 505-512 (Alfaro). In United States v. Kincade (9th Cir.2004) 379 F.3d 813, a plurality en banc opinion held the Fourth Amendment permits compulsory DNA profiling of certain conditionally-released federal offenders in the absence of individualized suspicion that they have committed additional crimes. Compulsory, nonconsensual extraction of DNA from convicts was upheld in Johnson, supra, 139 Cal.App.4th 1135 and People v. Travis (2006) 139 Cal.App.4th 1271 (Travis).
Defendants blood was drawn under section 290.2. As it existed at the time, "former section 290.2 required persons who had been convicted of specified crimes, and who were paroled or otherwise released, to provide two specimens of blood and a saliva sample prior to that release. The samples so provided were then to be forwarded to the Department of Justice for DNA analysis and other genetic typing. [Fn.] The section was repealed by Statutes 1998, chapter 696, section 1, page 3718. Its subject matter is now covered by section 295 et seq." (People v. Johnson (2006) 139 Cal.App.4th 1135, 1157-1158.)
"There can be no doubt that the involuntary taking of DNA samples constitutes a search and seizure under the Fourth Amendment (see Schmerber v. California (1966) 384 U.S. 757, 767, ), and that `[t]he touchstone of the Fourth Amendment is reasonableness. [Citation.] (Florida v. Jimeno (1991) 500 U.S. 248, 250, .)" (Johnson, supra, 139 Cal.App.4th at p. 1158.)
"We examine several factors to determine whether an intrusion amounts to an unreasonable search or invasion of privacy rights: `(1) the individuals interest, (2) the governments interest, (3) the necessity for the intrusion, and (4) the procedure used in conducting the search. To assess the first factor, the court looks to a hierarchy of privacy interests. Reasonable expectations of privacy that society is prepared to recognize as legitimate receive the greatest level of protection; diminished expectations of privacy are more easily invaded; and subjective expectations of privacy that society is not prepared to recognize as legitimate have no protection. [Citations.]" (Travis, supra, 139 Cal.App.4th at pp. 1282-1283.)
As this court explained in Alfaro, "We agree with existing authorities that (1) nonconsensual extraction of biological samples for identification purposes does implicate constitutional interests; (2) those convicted of serious crimes have a diminished expectation of privacy and the intrusions authorized by the [DNA] Act are minimal; and (3) the [DNA] Act serves compelling governmental interests. Not the least of the governmental interests served by the [DNA] Act is `the overwhelming public interest in prosecuting crimes accurately. [Citation.] A minimally intrusive methodology that can serve to avoid erroneous convictions and to bring to light and rectify erroneous convictions that have occurred manifestly serves a compelling public interest. We agree with the decisional authorities that have gone before and conclude that the balance must be struck in favor of the validity of the [DNA] Act." (Alfaro, supra, at pp. 505-506.)
Defendant cites Indianapolis v. Edmond (2000) 531 U.S. 32 (Edmond) and Ferguson v. City of Charleston (2001) 532 U.S. 67 (Ferguson) to support his claim that there must be a "special need" beyond a general interest in crime control to support a suspicionless search. But, Edmond and Ferguson do not cast doubt on the foregoing authorities. As the court in Adams, supra, 115 Cal.App.4th 243, explained: "Defendants assertion that this court must identify a `"special needs" beyond the normal need for law enforcement before undertaking a balancing analysis overlooks the fact that the class of persons subject to the [DNA] Act is convicted criminals, not the general population. . . . [C]onvicted criminals do not enjoy the same expectation of privacy that nonconvicts do." (Adams, supra, 115 Cal.App.4th at p. 258.) Unlike the general public subject to the searches in Edmond and Ferguson, the DNA Act applies only to those who have been convicted of a crime and thereby have a reduced expectation of privacy. (Adams, supra, at p. 259; see also Johnson, supra, 139 Cal.App.4th at p. 1168.)
We agree with the court in Travis, supra, 139 Cal.App.4th 1271, and we decline "to depart from the overwhelming weight of authority in this state and other jurisdictions that has given universal approval to DNA collection statutes." (Id. at p. 1290.)
Having determined that the 1994 biological sample was lawfully seized, we turn now to the issue of suppressing the 2006 buccal swab sample. Defendants arguments regarding the 2006 buccal swab sample rest inexorably on the claim that the 1994 blood draw was unconstitutional. As we have indicated, it was not.
Defendant was placed in custody on January 17, 2006, as a result of a carjacking and subsequent car chase. On January 19, 2006, Detective Pometta questioned defendant. Prior to being advised of his Miranda rights, defendant indicated he knew he and the detective had "a lot to talk about." Also prior to advising defendant of his Miranda rights, Detective Pometta asked defendant some preliminary identifying questions, such as his name, birth date, height and weight, and address. Then the detective indicated he was going to Mirandize defendant and asked, "You know this routine?" Defendant responded, "Yep, and Im not going to say nothing else." Detective Pometta then advised defendant of his Miranda rights.
After being advised of his rights, defendant proceeded to discuss the circumstances surrounding the carjacking and car chase. At various times in the interrogation, defendant indicated he did "not want to talk anymore", he was "through," he was not going to make the officers job easy, he did not have anything else to say, and he was not going to help officers. Defendant also stated he did not have a problem answering the detectives questions and told the detective they could talk again.
The interrogation lasted slightly over one hour. At the end of the interrogation, Detective Pometta told defendant they were going to take a biological sample from his mouth. Defendant answered, "Okay. Thats not a problem." The officer who came in to take the sample explained the process and defendant repeatedly indicated it was not a problem.
Defendant contends that the totality of the circumstances indicates his "`consent in 2006 to the buccal swab . . . was involuntary, as it, too, was given in submission to a show of authority, and in violation of his Miranda rights." We disagree. "Where there is no evidence of coercion or a denial of due process in elicitation of the statements, the object of the fifth amendment exclusionary rule—assuring trustworthiness of evidence introduced at trial—is not served by barring admission of the derivatively obtained evidence or statements." (U.S. v. Gonzalez-Sandoval (9th Cir.1990) 894 F.2d 1043, 1048.) That is, the "fruit of the poisonous tree" analysis does not apply to physical evidence seized as a result of a noncoercive Miranda violation. (People v. Brewer (2000) 81 Cal.App.4th 442, 454-455; People v. Whitfield (1996) 46 Cal.App.4th 947, 955.)
Nor does the violation of Miranda make the police conduct coercive per se. Here, after reviewing the totality of the circumstances, including the video tape of the interrogation, the trial court found defendants consent was voluntarily given. "Where substantial evidence supports a preliminary finding by the trial court and the implied ultimate finding by the jury that a voluntary consent has been given, a reviewing court must accept consent freely as a fact proven. [Citations.]" (People v. Ramirez (1997) 59 Cal.App.4th 1548, 1558.) Substantial evidence supports the trial courts finding that the consent was voluntarily given. The interrogation lasted a little over one hour, Detective Pometta was in plain clothes, defendant was not handcuffed during the interrogation. He was given a soda and an eight minute break was taken about 30 minutes in to the interrogation. Defendant has had multiple experiences with law enforcement, as indicated by his multiple prior convictions. He is certainly familiar with process. As the court noted, defendant also appeared to be voluntarily engaging in the discussions with Detective Pometta. We conclude defendants consent to the 2006 buccal swab was valid.
Moreover, even assuming the trial court erred in admitting the 2006 buccal swab evidence, the error was harmless. The admission of evidence in violation of a defendants Miranda rights is subject to review under the harmless error standard. (Chapman v. California (1967) 386 U.S. 18 ; People v. Bradford (1997) 14 Cal.4th 1005, 1037; People v. Sims (1993) 5 Cal.4th 405, 447.) Any error in this case was, indeed, harmless.
First, the police had the 1994 DNA evidence which had been lawfully obtained.
Second, there was significant incriminating evidence against defendant at the time the 2006 buccal swab was taken: the 1994 sample matching the mixed sample taken from M. L.; the photo line-up identification of defendant; and, the video surveillance evidence of defendant wearing the same clothing M. L. had described him wearing, including the red bandana and medallion. It seems quite clear from this record that even if defendant had not consented to the biological sample being taken, he would have been subject to a court order to provide a biological sample.
Third, aside from the DNA evidence, there was significant evidence of defendants guilt presented to the jury. M. L. identified defendant both in a photo line-up and at trial. Defendants mother-in-law, Venus, lived across the street from M. L. and defendant came to her apartment on the day of the assault wearing the same clothes M. L. described and with a bloody lip, as M. L. had described. When defendant left M. L.s apartment, she saw him turn toward Venus apartment. Defendant told Venus the police were looking for him for a robbery and rape. Video surveillance taken on the day of the assault also showed defendant wearing the same clothing M. L. and Venus had described, including the medallion. Venus suspected officers were looking for defendant and told them the sketch was inaccurate. Defendant was wearing the medallion when he was arrested, and M. L. identified it at trial. Given the weight of this evidence, any error in admitting evidence related to the 2006 buccal swab was harmless.
II
Defendants next two contentions both relate to the trial courts denial of a Kelly hearing on various aspects of the DNA evidence. The resolution of these contentions is the same, so we will address them together.
Defendant contends the trial court abused its discretion in refusing his "request for a Kelly hearing on the admissibility of a frequency-of-match (or `probability) statistic to accompany testimony about the DNA `match in this `cold hit case." Defendant also contends the trial court abused its discretion in refusing his request for a Kelly hearing on "whether the relevant scientific community generally accepts the determination of DNA `matches from mixed-source DNA samples, via the process of an analyst `subtracting out the victims known profile, and `calling whatever remains behind the unknown suspects profile, by using varying thresholds for the peak heights of relevant fluorescent units."
As to this claim, after defendants opening brief was filed, the California Supreme Court decided People v. Nelson (2008) 43 Cal.4th 1242 in which the court rejected the identical claim defendant makes in this case. The court held "it is already established that the product rule reliably shows what it purports to show-the rarity of the genetic profile in the population group. Accordingly, its admissibility in a cold hit case is a question of relevance, not scientific acceptance, and it is thus not subject to a further Kelly test." (Nelson, supra, at p. 1259-1260)
Defendant has forfeited these claims. After the various Kelly motions to exclude were filed in the trial court, along with their accompanying documentation, the trial court stated, "I believe the parties all agree that in looking at this, we would not need to proceed with any further substantive evidentiary hearing but simply the court can take into consideration the offers and the factual scenarios set forth in the briefing of the parties. Is that agreeable, [defense DNA counsel]?" Defense counsel answered, "Yes."
The record demonstrates defendant did not request Kelly hearings. Defendant moved to exclude the DNA evidence. Counsel agreed hearings on the Kelly issues were unnecessary, apparently believing she had presented enough evidence to the court in conjunction with her motions. The failure to request an evidentiary hearing, and the express agreement that no hearing was necessary, has forfeited the claims that the trial court abused its discretion in failing to conduct hearings. (See People v. Hinton (2006) 37 Cal.4th 839, 898; People v. Hoyos (2007) 41 Cal.4th 872, 910 (Hoyos ); People v. Kaurish (1990) 52 Cal.3d 648, 688.)
III
Defendants final contention is that the trial court denied his due process rights when it denied his "Kelly `Prong Three challenges, to the manner in which criminalist Herbert actually interpreted the DNA mixture in this case, and calculated the resulting frequency-of-match statistic." This claim is also forfeited.
As stated above, under Kelly, prong three claims relate to whether the correct scientific procedures were followed in this particular case. Prong two claims relate to whether the testimony regarding the technique and its application is offered by a properly qualified expert. Prong one claims relate to whether the technique is generally accepted in the scientific community. (Venegas, supra, 18 Cal.4th at p. 78, citing People v. Kelly, supra, 17 Cal.3d at p. 30.)
The motion to which defendant cites is entitled, "Motion to Exclude `Peak Height Interpretation or `Subtraction Interpretation of DNA Evidence [Kelly prong one]." The entirety of the paragraph within this motion which defendant claims has preserved his prong three challenge states: "In addition to the above, even if `peak heights were calibrated, reliable, and predictable measures of DNA quantity, there will be no proof in this case that the Sacramento District Attorneys Laboratory of Forensic Services (hereinafter referred to as the `Sacramento Lab) has validated mixed sample `peak height interpretation in their lab or that Jeff Herbert, or any other analyst in the Sacramento Lab, can unerringly `call a major or minor contributor to a sample based on `peak heights. From the discovery provided to the defense, Mr. Herbert has not participated in any `peak height proficiency tests nor other demonstration of his asserted ability to perform `peak height interpretation. Therefore, `peak height interpretation fails both Kelly Prong One and Kelly Prong Three admissibility." Although the words "Prong Three" do appear in this paragraph, the substance of the argument is not prong three, but prong two. That is, the claim is a challenge to the qualifications of the Sacramento Lab in general, and Jeff Herbert in particular. There is no challenge to the particular techniques employed by the Sacramento Lab or Herbert in this particular case.
In response to the Attorney Generals argument that the prong three issue was not preserved in the trial court, defendant responds that the court expressly indicated defense counsel was not "seeking further evidentiary hearing regarding prong three" but rather was reserving "those issues for evaluation of the weight of the evidence to be presented." This argument misconstrues the record. The portion of the record quoted by defendant in which the court referred to the reservation of prong three issues was with respect to the defense motion to exclude DNA evidence based on the use of the Identifiler test kit and whether it had obtained general acceptance in the scientific community. The prong three argument was expressly made and separately headed in this motion. The denial of that motion has not been appealed.
This case then is the converse situation to that in Hoyos, where the defendant argued on appeal that the Peoples blood spatter expert witness was biased and lacked proper qualification as an expert. (Hoyos, supra, 41 Cal.4th at p. 909) In the trial court, however, the defendant had argued to exclude the experts testimony under Kelly, raising the issue of whether the expert had used correct procedures. (Id. at p. 909.) The Supreme Court concluded that the defendant "forfeit[e]d the claims" "because the objection below neither explicitly nor implicitly raised the issues of [the expert]s bias or lack of qualification." (Id. at p. 910.) Similarly here, by failing to raise at the trial level implicitly or explicitly the same issue with regard to the scientific evidence he raises on appeal, defendant has forfeited his argument.
Lastly, as detailed above, based upon the strength of the other evidence in this trial, even if the admission of the DNA evidence was in error, such an error was not prejudicial.
DISPOSITION
The judgment is affirmed.
We concur:
DAVIS, J.
NICHOLSON, J.