Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kern County No. BF117432A. John R. Brownlee, Judge.
Thea Greenhalgh, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., and Kamala D. Harris, Attorneys General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Michael A. Canzoneri and Barton Bowers, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Wiseman, J.
Defendant Steven Allen Bennett, who was convicted of numerous counts arising from the kidnapping and rape of two victims and who received a sentence of more than 200 years, claimed in the trial court that the offenses were committed by his brother, Allen Bennett. The court prohibited defendant from presenting evidence of his brother’s guilt. The most important evidence excluded was testimony tending to show that, at the time of one of the kidnappings, defendant’s brother was in possession of the car the prosecution claimed was used in the crimes.
The People agree with defendant that the exclusion of this evidence was erroneous, as do we. Even so, because the evidence of defendant’s guilt, including DNA evidence, was overwhelming, the error was harmless under any standard. We affirm.
FACTUAL AND PROCEDURAL HISTORIES
On October 25, 2006, E.M. contacted the Bakersfield police and reported that she had just been kidnapped by a man in a car and raped by him. She described the rapist and the car and said the car’s license plate began with 5VUA.
Erica B. contacted the Bakersfield police on December 16, 2006, and reported that she, too, had just been kidnapped by a man in a car and raped by him. She described the rapist and the car.
The police presented photographic lineups to both victims on December 26, 2006. The first set of photos shown to E.M. included defendant, but Ms. M. failed to identify him. The officers who prepared the lineups concluded that the photo of defendant they had used was not a good likeness. They substituted another photograph of him and prepared a second lineup. Ms. M. identified defendant in the second lineup. She pointed to his picture immediately and said, “‘Oh, my God, that’s him.’” Erica B. was shown only the second lineup. She immediately identified defendant. The identifications led to defendant’s arrest.
The district attorney filed a 12-count information. Counts 1 and 2 alleged forcible rape and forcible oral copulation of E.M. (Pen. Code, §§ 261, subd. (a)(2), 288a, subd. (c)(2).) Counts 3 through 8 alleged two counts of each of the following offenses against Erica B: forcible rape, forcible oral copulation, and forcible sexual penetration. (§ 289, subd. (a)(1).) Counts 9 and 10 alleged kidnapping with intent to commit rape of each victim. (§ 209, subd. (b)(1).) Counts 11 and 12 alleged second degree robbery of each victim. (§ 212.5, subd. (c).) For sentence-enhancement purposes, the information alleged with respect to counts 1 through 8 that defendant kidnapped the victims (§ 667.61, subd. (e)(1)), substantially increased the victims’ risk of harm (§ 667.61, subd. (d)(2)), used a deadly or dangerous weapon (former § 667.61, subd. (e)(4)), and committed offenses against multiple victims (former § 667.61, subd. (e)(5).) With respect to counts 9 through 12, the information alleged that defendant personally used a deadly or dangerous weapon. (§ 12022, subd. (b)(1).)
Subsequent statutory references are to the Penal Code.
This provision is now codified at section 667.61, subdivision (e)(3).
This provision is now codified at section 667.61, subdivision (e)(4).
At trial, E.M. testified that, at about 11:00 a.m. on October 25, 2006, she was walking to a bus stop to go to work. She was then 18 years old. A car she described as a blue four-door Alero with 20-inch chrome rims and a khaki or gray interior went by twice. When it came by a third time, the driver offered her a ride. She declined. He drove up close to her, opened the door and forcibly pulled her inside. The driver, whom Ms. M. identified at trial as defendant, was a White man with ash blond hair, light-colored eyes, and tattoos on his hands. He was wearing a khaki and blue jacket and smoking Marlboro cigarettes. His hands were dirty, “like he had barely gotten off of work or something.” He told Ms. M. his name was Steven, he lived in Oildale, and he worked in the oil fields. He told her his hobby was either cars or planes, she could not remember which one. He repeatedly said things like, “‘There’s a lot of crazy white guys.’”
Ms. M. also testified that the car was a Ford and that she saw “Ford” on the steering wheel. As will be seen, defendant’s car was a blue Oldsmobile Alero.
As he was driving, the assailant produced a seven-inch knife with a gold-colored handle. He ordered her to pull her pants down. She pulled them part of the way down. While still driving, he put his hand in her pants. Then, saying “‘[l]et’s take a visit to grandmother’s house, ’” he drove into Union Cemetery. He stopped at the back of the cemetery, removed the tampon Ms. M. was wearing, reclined the passenger seat in which Ms. M. was sitting, climbed on top of her, held her down, and raped her. He continued to hold the knife at her side and repeatedly told her to call him “poppy.” Ms. M. did not know whether he ejaculated. Next, the assailant got out of the car and forced Ms. M. to copulate him orally as she continued to sit in the passenger seat.
The assailant got back in the car and started driving. While doing so, he examined the contents of Ms. M.’s purse, asking whether she had anything with her address on it. She said no. He found money and took it, saying, “‘You’re actually paying for me to do this to you.’”
He stopped near San Joaquin Hospital and said, “‘Give me a kiss so that way it won’t seem strange or weird.’” He kissed her on her cheek and let her leave. She wrote part of the car’s license plate number on a piece of paper with an eyeliner. A bystander helped her call home and contact the police.
A police officer took Ms. M. to Kern Medical Center, where she was examined by a sexual assault nurse examiner. The examination included the swabbing of Ms. M.’s face for DNA, because of the kiss. Another officer later took Ms. M. to a car dealer to look for a car of the same model as the assailant’s car. Ms. M. told the officer the car was an Oldsmobile Alero. She pointed out a 2002 Pontiac Grand Prix and said it looked very similar to the car in which she was kidnapped. The Alero and the Grand Prix are General Motors cars that share a single design.
Erica B. testified that she was walking home from a bus stop at about 5:00 p.m. on December 16, 2006. She was 18 years old. It was dark and raining. A car pulled up and the man inside asked her if she wanted a ride. Thinking she recognized him, she got in. Once inside, she realized she did not know the man, whom she identified at trial as defendant. He was White with short brown hair. It was a four-door car and she thought the car looked dark green, with a tan interior. The car was very clean. During her trial testimony, the prosecutor showed Ms. B. two photographs of defendant’s blue Alero. Ms. B. testified that it looked like the car in which she was kidnapped. She could not identify the same car in a third photograph because that photograph was taken from the back and Ms. B. had never seen the back of the assailant’s car.
The man was wearing a jacket with the word “Kenai” embroidered on it. He was clean-shaved and very clean, as if he had just taken a shower. He picked up a Marlboro cigarette package and took a knife out of it. The knife had a wooden handle with gold-colored metal ends. Telling Ms. B. not to “do anything stupid, ” the man held the knife against her side and ordered her to pull her pants down. He touched her and put his finger inside her vagina.
The assailant parked the car in the parking lot of a doctor’s office near Memorial Hospital. He pulled his pants down, grabbed Ms. B. by the back of her neck, forced her head down and put his penis in her mouth. Then he ordered her to pull her pants all the way down and lower her seat back. He got on top of her and raped her. Next, he returned to the driver’s seat and again grabbed her neck and forced her to perform oral sex on him. As she did so, he put his fingers inside her anus. Finally, he went back to her seat and raped her again. He told her repeatedly to say “‘[o]h, poppy.’” During the second rape, sweat dripped from the assailant’s face and landed on Ms. B.’s face. She did not know whether he ejaculated.
At one point, Ms. B. slipped her cell phone out of her pocket. The assailant saw her doing this and took the phone. He never gave it back.
After the assailant stopped raping Ms. B. the second time, he told her to put her clothes on and said she could leave. She walked away and a few minutes later flagged down a car. She told the driver what happened and the driver called the police.
Ms. B. went to Kern Medical Center and was examined by a sexual assault nurse examiner. The examination included the swabbing of her face for DNA, because of the sweat drops.
Darren Wright, a criminalist at the Kern County Crime Laboratory, testified that he prepared DNA profiles based on reference samples of defendant’s saliva and of blood from Ms. M. and Ms. B. His report was given to Kaci Wilson, another criminalist. Wilson testified that she prepared DNA profiles from the swabs taken from the faces of the victims. Each sample had a major contributor and a minor contributor, the major contributor being the victim from whose face the swab was taken. The profile for the minor contributor to the sample taken from Ms. B.’s face matched that of defendant. The probability of an unknown, unrelated person chosen at random matching that profile was one in 380 million for Caucasians. (Defendant is Caucasian.) The profile for the minor contributor to the sample taken from Ms. M.’s face also matched that of defendant. The probability of an unknown, unrelated person chosen at random matching that profile was one in 30, 000 for Caucasians.
Wilson also prepared a profile from a sample of semen found on the passenger seat of defendant’s car. It matched defendant’s profile. The probability of an unknown, unrelated person chosen at random matching that profile was one in 7.2 quintillion for Caucasians.
Detective William Darbee testified that the police seized defendant’s car on December 27, 2006. It was a dark blue 2001 Oldsmobile Alero with license plate number 5VUA119. Jeffrey Cecil, a crime scene technician with the Bakersfield Police Department, testified that an empty Marlboro cigarette package was found in the car. He also said that, by shining a black light, he found stains that appeared to be semen on the passenger seat, the driver’s seat, the rear seat, and the headliner above the passenger seat. He cut out a portion of the passenger seat upholstery for testing. Cecil also compared the car’s tire treads with photographs of tire tracks photographed at Union Cemetery on October 25, 2006. He opined that they matched. Detective Darbee found a discarded tampon on the ground near the tire tracks. Latent fingerprints were found in the car, but none of them matched either victim.
Bakersfield Police Sergeant Scott Thatcher testified that he searched defendant’s apartment on December 27, 2006. On the couch in the living room he found a “brown, tannish” jacket with the words “Kenai Drilling” embroidered in red on the front. According to the testimony of defendant’s mother, Kimberly Bennett, defendant worked in the oil fields, was employed by a firm called Kenai Drilling, and worked on cars as a hobby. Ms. B. identified the jacket in a photo as the jacket worn by her assailant. In a dresser drawer in the bedroom, Sergeant Thatcher found a knife. When shown a photograph of the knife at trial, Ms. M. could not say whether it was the knife her assailant used. Ms. B. did identify the knife in a photograph as the knife used by the rapist.
Sergeant Thatcher also found a pornographic video disc in the apartment. The video was titled “Young, Tight Latinas.” Detective Darbee testified that he watched the video and it featured a scene in which a Caucasian man has sex with a Hispanic woman. The woman says “oh, poppy” 12 times during this scene.
Detective Darbee identified some photographs as showing a tattoo on each of defendant’s wrists. He also testified that defendant had letters tattooed on his thighs. There was a W on his right thigh and a P on his left, so that an observer looking at him from the front, reading from the observer’s left to the observer’s right, would read “WP.”
The victims were questioned about the tattoos. Ms. M. testified that she saw tattoos on the assailant’s hands, which she described as “letterings.” She thought the tattoos were on the back of the hand, near the thumb, and did not remember whether she saw any tattoos on either side of the assailant’s wrists. Kimberly Bennett testified at a pretrial hearing that defendant had “Kimberly” tattooed on the underside of one wrist and “Stacie” on the underside of the other wrist. Ms. M. also testified that she did not remember whether he had any tattoos on his thighs, although he lowered his pants below his knees. “I never paid attention, ” she said. Ms. B. also did not recall seeing tattoos on the assailant’s thighs when his pants were pulled down. She said she was not looking at his thighs and answered yes when asked whether she was “just trying to block everything out in [her] mind.” She did not recall seeing tattoos on her assailant’s hands.
Defendant presented an alibi defense for the assault of Ms. B. Kimberly Bennett testified that she drove to a mall with defendant in her Volkswagen Beetle on December 16, 2006, to pick up a ring. It was a diamond engagement ring for defendant’s girlfriend, Kari Kirk. They left Kimberly Bennett’s house at 4:00 p.m. and drove for 20 to 25 minutes. Leslie Wieser, an employee of Helzberg Diamonds, testified to the authenticity of a sales receipt indicating that a Steve Bennett purchased a diamond engagement ring at 4:28 p.m. on December 16, 2006.
Kimberly Bennett testified that she and defendant returned to her house at 5:20 p.m. Kimberly’s daughter (defendant’s sister) Stacie Huff and her husband Melvin Huff lived next door. Defendant lived across the street. Kimberly and defendant went to Stacie and Melvin’s house. There they saw Melvin, Kimberly’s son Michael Bennett, defendant’s friend Brittney West, and Kari Kirk’s sister Amanda Kirk. Each testified that he or she saw defendant at the Huffs’ house that evening. West testified that she was moving in with the Huffs that day. She left the Huffs’ house at about 3:30 p.m. to pick up her belongings. It took about 15 minutes to drive to her old apartment, an hour to load her things, and another 15 minutes to drive back, so she was back at the Huffs’ at about 5:00 p.m. About 15 minutes after that, she saw Kimberly and defendant drive up next door. Defendant showed West the ring.
Three other witnesses confirmed this account. Melvin Huff, defendant’s brother Michael Bennett, and Kari Kirk’s sister Amanda Kirk, all were helping West move and were present when defendant arrived with his mother and the ring.
Several witnesses also accounted for defendant’s whereabouts immediately after he arrived with the ring. Amanda and Michael (who were girlfriend and boyfriend) testified that, after showing everyone the ring, defendant decided he would go see Kari’s father, Chris Kirk, to ask for Kari’s hand. Chris’s house was adjacent to Kimberly’s, and they all walked there through a gap in Kimberly’s back fence. Chris said yes and defendant stayed for dinner. All this happened between 5:00 and 6:00 p.m. Chris, his wife Laura Kirk, and their daughter Tami Kirk, all gave testimony confirming this story.
If true, the alibi testimony would account for defendant’s whereabouts at about the same time as the assault of Ms. B. Ms. B. testified that it was 4:00 p.m. when she got off work on December 16, 2006. She waited inside the building “a little bit” until the bus arrived. The ride to her stop took 15 to 20 minutes. She did not know what time it was when she got off the bus or what time it was when the rapist’s car drove up. It could have been before 5:00 p.m. and it could have been after. Officer Amy Davis testified that Ms. B. said she had gotten off the bus at about 5:15 p.m. The 911 call placed after the rapist let Ms. B. go was at 5:42 p.m. Officer Davis was dispatched to meet Ms. B. at Memorial Hospital, near where the rapist released her, at 5:43 p.m. Defendant did not present any evidence accounting for his whereabouts when Ms. M. was kidnapped on October 25, 2006.
The prosecutor attempted to discredit the alibi witnesses by trying to show that they conspired to concoct and coordinate their story. He elicited testimony from Chris, Laura, Amanda, and Tami Kirk, and from Kimberly and Michael Bennett, that some of the Bennetts and Kirks had met together after defendant’s arrest to discuss his whereabouts at the time of the second kidnapping.
The prosecutor also questioned Kimberly Bennett about an incident in which, during the trial, the trial judge ejected two spectators from the courtroom. On the first day of testimony, outside the presence of the jury, the prosecutor disclosed that Detective Darbee had been listening to tapes of jail phone calls between defendant and Kimberly, his mother. In one conversation, the two discussed their intention to have two spectators take notes of the proceedings and describe them to witnesses. The two spectators, Stacie Huff and Alisha Whaley, were present and the court told them they could no longer participate as spectators or witnesses and directed them to leave. Kimberly Bennett later testified that she had been instructed that, as a witness, she was excluded from the courtroom while other witnesses were testifying and she was not permitted to communicate with other witnesses about testimony. She admitted she arranged for the spectators to take notes and tell her what was happening. She conceded that this violated the court’s instructions, but denied that that was her intention. In his closing argument, the prosecutor said the jury should not believe the alibi testimony for these reasons, among others.
The jury found defendant guilty as charged and found all the enhancement allegations true, except that it found the multiple-victim enhancement allegations not true for counts 4 and 7, forcible sexual penetration of Erica B.
The court imposed a sentence of 207 years 4 months to life, calculated as follows: For each of the sexual assaults, counts 1 through 8, the court applied section 667.61 and imposed consecutive sentences of 25 years to life. The sentences for the kidnapping charges, counts 9 and 10, were stayed pursuant to section 654. On count 11, robbery of E.M., the court imposed a sentence of five years and added an enhancement of one year under section 12022, subdivision (b)(1). On count 12, robbery of Erica B., the court imposed a sentence of one year and added an enhancement of four months under section 12022, subdivision (b)(1).
DISCUSSION
On October 8, 2008, before the trial started, defendant sought the court’s leave to present evidence of third-party culpability, specifically, evidence that defendant’s brother Allen Bennett committed the offenses against Erica B. on December 16, 2006. The court conducted a hearing.
Kimberly Bennett testified that the reason she drove defendant to the jewelry store at 4:00 that afternoon was that defendant told her Allen had borrowed his car. Teresa Tempel, a friend of Kimberly’s who lived across the street from her, testified that she spoke to Kimberly on the phone at about 6:00 in the evening on December 16, 2006. Kimberly told her that defendant had just picked up the engagement ring for Kari Kirk and had gone to see Chris to ask for permission to marry Kari. After talking on the phone for 5 or 10 minutes, Tempel walked across the street to see Kimberly. While she was crossing the street, she saw Allen drive up in defendant’s blue Alero and get out. The time was “between 6:12 and 6:15.” She had seen Allen sitting in the driver’s seat of defendant’s car many times, but had never seen him driving it before.
Kimberly testified that she looked out the window at about 6:15 or 6:30 p.m. and saw defendant’s car parked at defendant’s house across the street. At about 6:30 p.m., Allen came into Kimberly’s house. He acted “like something was wrong” and “could have been stoned” from smoking marijuana. He appeared nervous. She said he was “[j]umping around and wouldn’t look at me. Like when I say something to him, he would just bounce off to something else.”
Kimberly also testified that Allen and defendant had both parents in common and, in her opinion, looked alike. Like defendant, Allen had tattoos on his wrists. He had “Stacie” tattooed on one wrist and “Emily” on the other. Allen also had a tattoo on the inside of one forearm, a heart with “mom” on it, in the same spot where defendant had “a skull or something.” Unlike defendant, however, Allen had no tattoos on his thighs.
Kimberly further testified that Allen sometimes had the use of defendant’s car. Defendant left his Kenai Drilling jacket in the car and Allen had access to it. Allen lived in defendant’s house on December 16, 2006.
The prosecutor remarked that Allen’s DNA was tested and he was excluded as a contributor to the two samples taken from the victim’s faces. Defense counsel agreed that the results indicated that Allen was excluded, but commented that there had been no cross-examination on those results. Defense counsel declined to stipulate that Allen was excluded “to the extent that cross-examination might have shown any problem” with the evidence of the tests that excluded him. The court admitted and considered a booking photo of Allen to determine what he looked like, since he did not appear in court. It observed that defendant and Allen were about the same height and weight and five years apart in age, but opined that they did not look at all alike.
The court ruled on the issue on October 9, 2008, the day after the hearing. Citing People v. Hall (1986) 41 Cal.3d 826 (Hall), the court stated that the controlling question was whether there was direct or circumstantial evidence linking Allen to the actual perpetration of the crime. It stated at one point that there was not “any” direct or circumstantial evidence linking Allen to the actual perpetration, and at another point that there was “insufficient” evidence doing so. One point it stressed was that Ms. B. said the car in which she was raped was green, while defendant’s car was blue, the point presumably being that it was possible that defendant used some other car to commit the offenses against Ms. B. while Allen was driving defendant’s car. It denied defendant’s motion to present evidence of Allen’s culpability. Defense counsel pointed out that the prosecution’s theory was that defendant used the same car to commit both offenses. At defense counsel’s request, the court stated that the ruling was without prejudice and the issue could be raised again later.
The issue was revisited. The parties discussed the issue with the court in chambers on October 10, 2006, and the court announced that it would review the matter and make a decision. On October 14, 2006, defense counsel told the court he had learned from Kari Kirk that Allen Bennett was the one who purchased the video “Young, Tight Latinas” that had been found in defendant’s apartment, where Allen was also living. Counsel later explained that Kari was actually not the source of this information and that Allen himself would be the witness who could testify to it. The court stated that defendant could have Allen testify to his ownership of the video after all, but indicated that it would not permit questioning that would contravene its ruling excluding third-party culpability evidence. Counsel decided he would not call Allen because he did not “want there to be a problem with regards to third-party culpability.”
The same day, the court said it had reconsidered the matter and come to the same conclusion. It again emphasized the differences between defendant’s car and the car described by Ms. B., concluding that the evidence that Allen was driving defendant’s car at the time of the assault on Ms. B. tended not to implicate Allen but, instead, to show that “Allen had nothing to do with the second rape.…” It also mentioned Ms. B.’s positive identification of defendant and the exclusion of Allen as a contributor to the DNA samples from the victims’ faces, among other things.
Defense counsel renewed his motion to introduce the third-party culpability evidence after the defense rested. The court heard argument and took the matter under submission. The next day, it reconfirmed its previous decision, reasoning as follows:
“First of all, let me go through my thought process. [¶] … [¶]
“Neither victim saw tattoos on the thighs.
“[Defense counsel] argues this points to Allen, as he has no tattoos, while the defendant does have tattoos on his thigh.
“Both victims testified to the effect they were not looking for thigh tattoos, and, thus, did not see any.
“In this Court’s opinion this is highly believable, in light of the fact of what the suspect was putting them through both emotionally and physically.
“They both stated something to the effect that they weren’t really paying attention to his thighs. They were trying to handle the situation with what was going on there.
“As a result, the Court finds no evidentiary value as to the tattoo evidence regarding the third-party culpability.
“Number two, there is no evidence of any value that I can see that Allen had anything or any participation in the [E.M.] rape.
“Neither the defendant or brother Allen can provide their whereabouts on this date.
“It does not ID a possible suspect, and it does not link any third party to the commission of the crime.
“Number three, as to the similarities in appearance between the defendant and defendant’s brother. I have to—I must go with the photograph of the brother closest to the time of the rapes, which has been provided to me. And, again, in my opinion, they do not look similar.
“Number four, [E.M.] identified the blue Alero with chrome wheels as the vehicle. There’s a stipulation that that vehicle belonged to the defendant.
“That vehicle has a gray interior.
“[E.M.] testified that the perpetrator was dirty. The vehicle was dirty when it was inspected in December.
“We go forward to Miss [B.] Miss [B.] tells the jury the vehicle is dark green with beige or tan interior. That’s also what she told law enforcement.
“She testified the perpetrator was clean and the car was clean; that the perpetrator was—like he had just cleaned up to come out and do that. The car was clean. She said nothing about fancy wheels.
“However, she was showed thumbnail photograph number 160 and 162, which is, in fact, the blue Alero, and she stated that it looked like the car that was used to kidnap her. Not that it was, but that it looked like the car.
“However, let the record reflect she was also showed thumbnail photograph number 163, which is the same car, and she could not identify that vehicle as being the vehicle that kidnapped her.
“In [Hall, supra], 41 Cal.3d 826, the Court went through a number of factors to use in looking at third-party culpability, and the facts in Hall, in particular, I want to go through.
“In Hall, the third party came forward with information about the murder and provided intimate details that only somebody with facts known about the murder could know.
“In Hall, the third party approached law enforcement looking for mitigated punishment on pending cases that that individual had pending.
“And also [i]n Hall, the third party attributed his failure to come forward earlier for fear of reprisal by the defendant.
“If you look at the facts here in this case, in People versus Bennett, we have nothing even close to those facts here.
“Evidence of mere opportunity on behalf of Allen, that is, being in possession of the car at the time of the rape, does not raise any reasonable doubt about defendant’s guilt.
“Especially in light of the fact that—[Ms. B.’s] inability to conclusively identify the vehicle.
“I find no direct or circumstantial evidence linking Allen to the crime, and, therefore, the motion is denied.
“And let me add this: However, over and above that determination under Hall, there was devastating evidence of DNA here.
“The prosecution’s forensic tests refute the defense theory that Allen was the rapist.
“As a matter of fact, the DNA tests completely exonerate Allen as a suspect in this—these crimes against the victim.
“This only strengthens the Hall analysis. The third-party evidence in this case is inadmissible.”
Defendant argues that the evidence of third-party culpability was admissible under the standard of Hall, supra, 41 Cal.3d 826, and the court abused its discretion in excluding it. The People agree, but claim the error is harmless. As we will explain, the evidence was admissible, but not under the Hall standard. We agree with the People that the error was harmless under any standard.
In Hall, the Supreme Court explained:
“To be admissible, the third-party [culpability] evidence need not show ‘substantial proof of a probability’ that the third person committed the act; it need only be capable of raising a reasonable doubt of defendant’s guilt. At the same time, we do not require that any evidence, however remote, must be admitted to show a third party’s possible culpability.… [E]vidence of mere motive or opportunity to commit the crime in another person, without more, will not suffice to raise a reasonable doubt about a defendant’s guilt: there must be direct or circumstantial evidence linking the third person to the actual perpetration of the crime. [¶] … [¶] [C]ourts should simply treat third-party culpability evidence like any other evidence: if relevant it is admissible ([Evid. Code, ] § 350) unless its probative value is substantially outweighed by the risk of undue delay, prejudice, or confusion ([Evid. Code, ] § 352).” (Hall, supra, 41 Cal.3d at pp. 833-834.)
Third-party culpability evidence is admissible only if it (1) links the third person directly or circumstantially to the perpetration of the crime, (2) is capable of raising a reasonable doubt of the defendant’s guilt, and (3) is not substantially more prejudicial than probative under Evidence Code section 352. This standard was reaffirmed more recently in People v. Bradford (1997) 15 Cal.4th 1229, 1325 (Bradford).
The People’s position is that, while the exclusion of the evidence that Allen Bennett committed the crimes of December 16, 2006, violated the standard of Hall and Bradford, the error is harmless under any standard because the evidence against defendant, especially the DNA evidence, was overwhelming and therefore it is clear beyond a reasonable doubt that the verdict would have been the same without the error. This position is internally inconsistent. To violate the Hall standard, a trial court must exclude evidence that is capable of raising a reasonable doubt of the defendant’s guilt. Where, as here, the court was aware at the time of its ruling of the evidence the parties intended to present, there is no reason why the excluded evidence would be able to raise a reasonable doubt then but unable to raise it now, when we carry out a harmless-error analysis on appeal.
We do not mean to imply that any decision that violates the Hall standard is automatically reversible because it excludes evidence capable of raising a reasonable doubt. The error can sometimes be harmless in spite of this. In Hall itself, for instance, the trial court erred when it excluded proffered third-party culpability evidence, but the error was harmless because, among other reasons, evidence of the third party’s culpability was adequately placed before the jury by other means in spite of the ruling. (Hall, supra, 41 Cal.3d at p. 835.) Further, the Hall court applied the harmless error standard of People v. Watson (1956) 46 Cal.2d 818, 837, so the error could be harmless because there was no reasonable probability that it affected the outcome, even though the excluded evidence was capable of raising a reasonable doubt. (Hall, supra, at p. 836.) Here, the People argue that the error was harmless under the beyond-a-reasonable-doubt standard of Chapman v. California (1967) 386 U.S. 18, which is the standard we also will apply, for reasons we will explain. Under the circumstances of this case, the erroneous exclusion of evidence in violation of the Hall standard cannot be harmless error under the Chapman standard because the proposition that the exclusion was erroneous presupposes that the evidence was capable of raising a reasonable doubt.
As will be seen, we conclude the evidence pointing to Allen Bennett is not able to raise a reasonable doubt now, so it was not able to raise a reasonable doubt at the time of the court’s ruling. It follows that Hall did not require its admission.
In spite of this, it is clear that the evidence was admissible simply because it was relevant to the issue of guilt. Evidence that defendant’s car, which the prosecution claimed (and still claims) was used to commit the offenses against Ms. B. on December 16, 2006, between 5:00 and 5:42 p.m., was not in his possession at that time is relevant to the issue of his guilt. It would have contributed to his alibi defense, quite apart from its tendency to implicate a third party. The evidence presented no risk of undue delay, prejudice or confusion, for it merely tended to show that defendant did not have possession of an instrumentality used in the offense at the time the prosecution’s theory required him to have it. Therefore, the evidence could not have been excluded under Evidence Code section 352.
Apart from the Hall standard and the issue of third-party culpability, there is no rule that items of defense evidence are inadmissible unless they are individually capable of raising a reasonable doubt of the defendant’s guilt. Under the ordinary-relevance standard, there is little doubt that this evidence ought to have been admitted. The remaining evidence pointing to Allen—his lack of thigh tattoos, his wrist tattoos similar to those of defendant, the alleged similarity between his appearance and that of defendant, the testimony that he had access to the jacket, and his ownership of the pornographic video—is arguably different. It was relevant, perhaps, solely through its tendency to implicate a third party. We will assume for the sake of argument, however, that it also should have been admitted. As a result, we agree with the parties that the evidence should have come in, and the important question on appeal is whether the error was prejudicial or harmless.
There is a dispute between the parties over the standard of harmless-error review. Although the People claim the error is harmless under any standard, they also argue that we need only apply the Watson standard, just as the Supreme Court did in Hall. Defendant argues that the exclusion of the evidence was federal constitutional error because it completely prevented him from presenting one of his defenses and denied him his rights to compulsory process, confrontation of witnesses, due process of law, and trial by jury. He says this means either that the error is reversible per se or that the Chapman standard applies. The People argue that defendant is not entitled to claim constitutional error on appeal because he did not use that label in his arguments in the trial court. Defendant contends that his arguments and objections in the trial court were sufficient to preserve his claim of constitutional error, and that if they were not, then his trial counsel provided ineffective assistance.
We are not persuaded that the error was reversible per se. As the People argue, the case defendant cites, United States v. Miguel (9th Cir. 2003) 338 F.3d 995, 1003 (jury instruction that no evidence supported defense theory was structural error under circuit case law), does not state a rule that applies in this court. Sullivan v. Louisiana (1993) 508 U.S. 275, which defendant also cites, is not on point. It held that a constitutionally defective reasonable-doubt instruction meant a conviction had to be reversed without a harmless error analysis because the instruction “vitiates all the jury’s findings, ” among other reasons. (Id. at p. 281.) The error in the present case is not similar. Absent some controlling precedent establishing that harmless error review is inapplicable in cases like this one, we adhere to the general principle that an error is grounds for reversal of a judgment only if it results in a miscarriage of justice, i.e., if it is prejudicial under either Watson or Chapman.
“Where a trial court’s erroneous ruling is not a refusal to allow a defendant to present a defense, but only rejects certain evidence concerning the defense, the error is nonconstitutional and is analyzed for prejudice under Watson.…” (People v. Garcia (2008) 160 Cal.App.4th 124, 133; see also Bradford, supra, 15 Cal.4th at p. 1325.) If the error prevents the presentation of an entire defense, the error may be constitutional and require application of the Chapman standard. It could be argued that the court’s ruling here prevented defendant from presenting his entire defense that his brother Allen committed the crimes. It also could be argued that the excluded evidence was really just an extension of his alibi defense, the rest of which he was allowed to present. We will assume out of an abundance of caution that the ruling deprived defendant of an entire defense, so the Chapman standard applies. We also assume that defendant’s objections were sufficient to preserve his claim that the error was of constitutional dimension, so the claim that the Chapman standard applies is properly before us. In doing so, we conclude the error was harmless under that standard. The evidence against defendant was overwhelming.
There is little doubt that the assaults on Ms. M. and Ms. B. were carried out by a single assailant. Both victims positively identified defendant and both said pictures of his car showed the car used in the assaults. The assailant used the same modus operandi in both assaults: First, in each instance, he lured or forced a young Hispanic woman, found near a bus stop, into the car. Threatening her with a knife with a gold-colored handle, while still driving, he forced her to lower her pants; then, continuing to drive, he touched her genitals. Both times he next parked in a secluded place and forced the victim to copulate him orally and raped her, making her call him “poppy.” Finally, he stole something from both victims and released them near hospitals.
There also was overwhelming evidence that this single assailant was defendant. It is undisputed that the car used in the assaults was defendant’s car. The first victim, Ms. M., got part of the license plate number and knew the car was an Alero; the tire tracks found in the cemetery near the discarded tampon matched the tires on defendant’s car. Defendant and the People agree that defendant’s car was also used to commit the offenses against the second victim, Ms. B. The assailant was wearing defendant’s work jacket and told Ms. M. his name was Steven, he worked in the oil fields, and his hobby was cars or planes. Defendant’s mother testified that defendant worked in the oil fields and liked to work on cars. Defendant’s knife was used in the attacks. Both victims positively identified defendant as the assailant. To credit the evidence that Allen was the perpetrator, the jury would have had to believe not just that the victims mistook defendant for Allen, but that Allen was actually impersonating defendant.
Most important, the DNA found on Ms. B. matched defendant’s DNA and the odds of a match with a randomly selected, unrelated person were one in 380 million. The odds of a match with a related person—such as the contributor’s brother—were presumably greater, but the test results discussed at the pretrial hearing indicated that Allen was excluded as a contributor to the sample. The DNA found on Ms. M. also matched defendant’s, and the odds of a match with a randomly selected, unrelated person were one in 30, 000. The test results indicated that Allen was excluded as a contributor to that sample as well. Semen matching defendant’s DNA was found in the seat where the victims were raped. The odds of a random match were one in 7.2 quintillion.
The excluded evidence would have been an insignificant counterweight to this overwhelming evidence of defendant’s guilt. At best, the evidence would have combined with the alibi testimony to support the claim that defendant was doing something else and was not using his car when the second assault took place. The alibi testimony, however, was incomplete, for it did not account for defendant’s whereabouts or separate him from his car when the first assault took place. That testimony also was compromised by the evidence that the alibi witnesses had undertaken to coordinate their testimony before and during trial. The jury found that the alibi testimony was false. Would it have been convinced to reach the opposite conclusion if it had heard Kimberly Bennett and her friend Teresa Tempel testify that they saw Allen drive up at about 6:00 p.m. in defendant’s car, heard that Allen owned the video, known that Allen had tattoos on his wrists and none on his thighs, heard that Allen could have worn the jacket, and seen what Allen looked like? We are confident, beyond a reasonable doubt, that it would not.
Defendant argues that the DNA evidence should not be given great weight because laboratory errors are possible. In fact, evidence was presented that Kaci Wilson, one of the criminalists who testified, once made an error when preparing a DNA profile as part of a quality-control exercise. She placed a tube in the wrong receptacle inside a piece of equipment, with the result that the genetic material deposited in that tube was mislabeled. Wilson caught the mistake and corrected it, and her laboratory instituted a new labeling system to prevent it from happening again.
Wilson also testified about the theoretical possibility of cross-contamination of samples and about the measures taken in her laboratory to prevent it. She tested the semen sample from the car several days before she tested the samples from the victims’ face swabs, so there was virtually no possibility of cross-contamination arising from her handling of those samples, since she had changed clothes and showered several times during the intervening days and the equipment is cleaned after each use. The reference sample from defendant was prepared and profiled by another criminalist, Darren Wright, at a different time, so there was no likelihood that the reference sample could have contaminated the samples taken from the victims. In sum, there is no reason to think the jury would have decided to give dispositive weight to the possibility of laboratory error if it had heard the excluded evidence.
Defendant also contends that it would be erroneous to rely solely on the DNA evidence to find the error harmless. We do not rely solely on it. The other evidence against defendant, which we have just summarized, also was powerful. For these reasons, the court’s error in excluding the evidence regarding Allen Bennett was harmless beyond a reasonable doubt.
Finally, in a letter submitted after briefing was completed, defendant discusses two cases he did not discuss before, McDaniel v. Brown (2010) ___ U.S. ___ [130 S.Ct. 665] and People v. Kiihoa (1960) 53 Cal.2d 748. Neither of these precedents changes our view of this case.
In McDaniel v. Brown, the Supreme Court discussed the so-called prosecutor’s fallacy about DNA evidence:
“The prosecutor’s fallacy is the assumption that the random match probability is the same as the probability that the defendant was not the source of the DNA sample. See Nat. Research Council, Comm. on DNA Forensic Science, The Evaluation of Forensic DNA Evidence 133 (1996) (“Let P equal the probability of a match, given the evidence genotype. The fallacy is to say that P is also the probability that the DNA at the crime scene came from someone other than the defendant”). In other words, if a juror is told the probability a member of the general population would share the same DNA is 1 in 10, 000 (random match probability), and he takes that to mean there is only a 1 in 10, 000 chance that someone other than the defendant is the source of the DNA found at the crime scene (source probability), then he has succumbed to the prosecutor’s fallacy. It is further error to equate source probability with probability of guilt, unless there is no explanation other than guilt for a person to be the source of crime-scene DNA. This faulty reasoning may result in an erroneous statement that, based on a random match probability of 1 in 10, 000, there is a.01% chance the defendant is innocent or a 99.99% chance the defendant is guilty.” (McDaniel v. Brown, supra, 130 S.Ct. at p. 670.)
As defendant’s letter explains, to avoid committing the prosecutor’s fallacy by equating the random match probability with the source probability or the probability of the defendant’s innocence, it is necessary to “consider all the evidence in the case, not just the DNA evidence.” Defendant’s letter cites a number of scholarly sources supporting this proposition. Defendant contends that, in their appellate briefs, the People fall into the prosecutor’s fallacy and urge this court to make the same mistake when considering whether the trial court’s error in this case was harmless.
We have not done so. We have not assumed the one in 380 million and one in 30, 000 random-match-probability figures are equivalent to the probability that someone other than defendant was the source of the DNA or the probability that defendant is not guilty. We are aware that other facts can affect the probability that someone other than defendant contributed the DNA or committed the crimes. Our conclusion that the trial court’s error was harmless beyond a reasonable doubt is based on all the evidence, not only the DNA evidence.
Defendant says People v. Kiihoa, supra, 53 Cal.2d 748, stands for the proposition that, “no matter how conclusive the evidence of guilt, a defendant is entitled to every right that is embraced within the constitutional guarantees of procedural Due Process.” He says we should conclude that he was denied a fair trial “regardless of how conclusive the DNA evidence appears.” As we have said, we conclude the error is harmless in light of all the evidence, not only the DNA evidence.
If defendant is claiming that Kiihoa means the error here at issue is reversible per se, he is mistaken. Kiihoa held that there was reversible error where, instead of disclosing the existence of an informant who was a material witness, a prosecutor deliberately refrained from initiating a prosecution against the defendant for several months until the witness left the state, thereby immunizing himself from compulsory process. (People v. Kiihoa, supra, 53 Cal.2d at pp. 752-753.) The opinion contains no discussion at all of standards of prejudice and does not state that some category of error is reversible in all circumstances. Even if the Kiihoa court did believe that a defendant can never get a fair trial when the prosecutor deliberately prevents him from confronting a material witness, that would not imply that the erroneous exclusion of exculpatory evidence—the error at issue here—is reversible per se.
DISPOSITION
The judgment is affirmed.
WE CONCUR: Hill, P.J., Detjen, J.