Opinion
H041704
01-30-2017
THE PEOPLE, Plaintiff and Respondent, v. LEONARD CHARLES EASTON, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Clara County Super. Ct. No. C1235354)
A jury convicted defendant Leonard Charles Easton of forcible sexual penetration, forcible oral copulation, and robbery. Defendant was sentenced to an aggregate prison term of 175 years to life, consecutive to a 15-year determinate term. He challenges his convictions claiming insufficient evidence, evidentiary error, and cumulative error. He asserts instructional error related to a kidnapping allegation impacting his sentence. Finding no error, we will affirm the judgment.
I. BACKGROUND
Defendant was held to answer on charges of sexual penetration by force (Pen. Code, § 289, subd. (a)(1)(A) ; count 1), oral copulation by force (§ 288a, subd. (c)(2)(A); count 2), and second degree robbery by taking the victim's phone (§§ 211-212.5, subd. (c)); count 3). As to counts 1 and 2, the information alleged: (1) defendant had sustained a previous conviction within the meaning of section 667.61, subdivisions (a) and (d); and (2) defendant had kidnapped the victim of the present offense in violation of sections 207, 209, or 209.5, within the meaning of section 667.61, subdivisions (b) and (e). The information alleged prior convictions for oral copulation by force and rape within the meaning of section 667, subdivisions (b) through (i) and section 1170.12 (the Three Strikes law). It also alleged that the rape conviction constituted a serious felony prior within the meaning of section 667, subdivision (a).
Undesignated statutory references are to the Penal Code, except as otherwise noted.
A. THE PROSECUTION'S CASE
1. The Assault
Casey Doe, a sophomore at Santa Clara University, testified that she went to a bar near the school campus with a group of friends on May 30, 2012. After the bar closed, she and a girlfriend walked to another friend's house. Sometime between 2:30 a.m. and 3:00 a.m., Casey set out alone to walk a few more blocks home. As she was walking south on Park Avenue nearing her apartment, a man grabbed her from behind, told her not to speak, and forced her off the sidewalk and to the ground behind a Round Table Pizza restaurant. Positioned behind an electrical box, the attacker moved Casey to her side, reached under her skirt, ripped her underwear aside, and put his finger inside her vagina. After some time, the assailant turned Casey to face him, but she did not see his face because he forced her head downward with his hands to orally copulate his penis. As Casey heard pedestrians approaching, the assailant took her cell phone and fled. Based on his deep voice, Casey identified him as an older African American. She did not recall him ejaculating. The assault lasted approximately six minutes.
Video footage from the Round Table Pizza entrance showed Casey walking on Park Avenue past the restaurant just before 3:00 a.m. Twenty seconds later, the camera captured a person wearing dark clothing and a hoodie approach the restaurant from the other side of Park Avenue, and continue walking in the same direction as Casey. About six and one-half minutes later, the camera captured four people walking past the restaurant, and after another minute the camera captured the same person who had followed Casey walking quickly across Park Avenue away from the restaurant.
Four university students were walking home on Park Avenue, following the path taken by Casey. They passed the pizza restaurant and a man ran past them. One of the students, Maria, testified that the man had dark skin and short dreadlocks, and he was too old to be a student. She had told police officers she believed the assailant to be in his late twenties, but in retrospect she testified that he was not so young, that "he was more of a man." When she looked in the direction from where he came, she saw Casey about 12 or 15 feet away getting up from behind an electrical box. Maria recognized Casey from school, tried to console her, and walked her home. Casey, shaken and crying, said she was not okay. She told Maria the man who ran away forced her to give him oral sex and she had feared for her life.
Maria was shown a photo of defendant with dreadlocks, a photo the investigating officer testified was consistent with defendant's appearance when he was arrested three weeks after the assault. Maria testified that the hair of the man she saw was similar to the hair in the photograph, but she did not recall the man's facial features clearly, and she could not identify the man in the photo as Casey's assailant.
One of the other pedestrians, Luis, testified that a man came out of nowhere as the group was walking past Round Table Pizza by the dumpsters. Luis saw Casey, shocked and crying, emerge from the same area. The man nearly bumped into Luis crossing the sidewalk, and continued across Park Avenue at a quick pace. Luis saw the man turn left onto Bellomy Street. The man was African American, appeared to be in his twenties, was about Luis's height (5 feet 9 inches), and bigger than Luis, who weighed 180 pounds. But Luis did not notice the man's hair or facial features. The unexpected encounter happened fast, and the man's head was covered by a hoodie.
Luis had seen an unfamiliar car parked on the corner of Alviso Street (one block west of Park) at Bellomy the night Casey was assaulted. A black man was in the driver's seat playing loud music. He noticed the car as he was walking to a friend's house on Bellomy after the bars had closed. After stopping at his friend's house, he continued his walk home on Park Avenue, where he and his friends encountered Casey and her assailant. Luis had lived in that area for four years as a student, had an interest in cars, and was familiar with the types of cars in that neighborhood. The next day he described the car to police as a four-door 2005 or 2006 white Toyota Camry sedan with curved aftermarket chrome rims and tinted windows. Luis described the car pictured in exhibit 19 (the car defendant was driving the day he was arrested three weeks later) as a four-door white sedan with custom aftermarket wheels that looked like the car he saw on the night of the assault. According to Luis, the car in the photograph appeared to be a 2005, 2006, or 2007 Lexus or Toyota Camry.
Using the Find My iPhone application, police recovered Casey's cell phone from a recycling bin in front of a residence in Santa Clara within a few blocks of defendant's residence. Casey underwent a sexual assault exam a few hours after the assault. The nurse took swabs from Casey, including from the area around her lips.
Defendant was arrested three weeks later, after police watched him approach his residence driving a white 2002 Toyota Camry (the car pictured in exhibit 19). The car had custom chrome rims and tinted windows, and it contained personal items belonging to defendant. The investigating lieutenant believed the car was the car described by Luis.
2. DNA Evidence
Craig Lee, a criminalist employed by the Santa Clara County District Attorney's crime laboratory, testified as an expert in DNA screening and analysis. Lee used a short tandem repeat DNA kit (the Identifiler Plus) to analyze swabs taken from Casey's upper and lower lips, the back of her neck, her fingernails, and her underwear waistband. The Identifiler Plus kit, accepted in the DNA analysis field, amplifies DNA samples using a technology called polymerase chain reaction, and examines alleles at 15 locations (loci) found on a person's chromosomes. The loci are polymorphic, meaning they differ between individuals. A person's DNA contains two alleles at each locus. The DNA is also examined for gender.
"Humans have 23 pairs of chromosomes, which are the packages that actually contain the DNA strands. DNA testing looks at different places called short tandem repeats (STR) that are on specific identified areas of different chromosomes. STR's are sets of four nucleotide units of base pairs on the DNA strand." (People v. Jackson (2008) 163 Cal.App.4th 313, 322.)
Lee focused his analysis on the upper lip swap because Casey had reported that the offender had put his penis in her mouth, and that sample tested positive for the presence of semen. Lee determined that the upper lip sample contained DNA from at least three people, but there was no indication that more than three persons contributed to the sample. There was evidence of two major contributors, one being Casey, and a minor contributor. Knowing that Casey was a major contributor (her alleles were present at every locus on the upper lip swab sample), Lee was able to create a DNA profile for a second major contributor based on the strength of the remaining alleles. That profile was compared against a criminal justice DNA database (the Combined DNA Index System, or CODIS) and two hits came back, both to defendant.
Based on the CODIS hits, investigators collected and provided the crime lab with a known DNA reference sample from defendant. Lee created a genetic profile from defendant's sample and compared it to the profile created for the second major contributor to the upper lip swab. He confirmed that the DNA profiles matched, and that defendant's alleles matched the upper lip swab sample at each of the 15 loci.
Defendant's DNA was not detected in Casey's fingernail scrapings, but Lee could not exclude him as a contributor to any of the other swabs. Casey was the sole major contributor to the neck and left fingernail swabs, and the remaining DNA from those samples was minor and insufficient to create a profile for a second person. Casey was the single source of DNA from the right hand fingernail swab. The underwear swab contained DNA from at least four contributors, with Casey as the major contributor. Lee could not determine whether defendant was included in that mixture, given the number of contributors to the sample. The sperm cell fraction of the lower lip swap contained a partial DNA profile, showing only two alleles. Although one of the alleles was consistent with Casey's profile and the other with defendant's profile, Lee could draw no conclusions from that sample due to its insufficiency.
After confirming the match, Lee used a likelihood ratio statistic to determine the significance of the match. He calculated the likelihood that the upper lip sample contained DNA from Casey and two unknown persons, rather than DNA from Casey, defendant, and one unknown person. Lee testified that the crime lab uses two other statistical calculations to determine the significance of a DNA match—the random match probability and the combined probability of inclusion. He explained that the random match probability is appropriate for a single source profile, and the combined probability of inclusion, which does not assume any number of contributors, is "not very good for low level samples, where people are dropping out, because it's not accurately reflecting that third person because you only have a little bit of information." He also reported that many publications have urged use of the likelihood ratio instead of the combined likelihood of inclusion because the combined likelihood of inclusion does not account for low levels of information.
Lee testified that unlike the other calculations, the likelihood ratio takes into account the low level of the alleles attributable to the minor unknown contributor. He used the likelihood ratio because it is the most accurate statistic in circumstances where it is appropriate to assume that the mixed sample contains DNA from only three persons. Lee made that assumption here because there was no evidence of more than three contributors to the upper lip swab sample. With Casey's DNA profile subtracted from the sample, there was no sign of more than one contributor at 12 loci and two contributors at the remaining three loci, which contained three alleles instead of two. Thus, it was unlikely that the upper lip swab contained DNA from more than three persons.
Lee, trained to calculate the likelihood ratio statistic, used data provided by the Identifiler Plus kit manufacturer reporting the frequency of alleles for three racial groups in the United States to determine: (1) it was 140 million times more likely that the DNA sample originated from Casey, defendant, and one unknown individual, rather than from Casey and two unknown individuals in the African American population; (2) it was 6 billion times more likely that the DNA sample originated from Casey, defendant, and one unknown individual, rather than from Casey and two other individuals in the Hispanic population; and (3) it was 1.2 trillion times more likely that the DNA sample originated from Casey, defendant, and one unknown individual, rather than from Casey and two unknown individuals in the Caucasian population.
3. Propensity Evidence
Susan Doe testified that she was raped in her home by defendant in 1992. While her husband was away and her four children were sleeping, at about 2:00 a.m. Susan was awakened by defendant, who was in her bedroom. He told her to shut up, put duct tape over her nose and mouth, and held a knife to her throat. He threatened to kill her in front of her children. He touched her breasts with his hands and mouth, forced her to pull down her sweatpants, forced her legs apart, and orally copulated her. Then he raped her, holding a knife by her head. When he was finished, defendant told Susan not to call the police, and he fled. Susan hid her children and ran to her neighbor's house. The police responded quickly, and later that morning Susan identified defendant as her assailant in a show up. In this case, Susan identified defendant in court as the man who had attacked her 22 years earlier.
The court admitted redacted certified copies of the 1992 information charging defendant with forcible oral copulation (§ 288a, subd. (c)) and rape (§ 261, subd. (a)(2)), along with the guilty verdicts and abstract of judgment in that case showing convictions for those offenses.
B. DEFENSE CASE
Defendant called no witnesses and did not testify. He cross-examined Lee on his assumption that the upper lip swab sample contained DNA from only three sources, and he argued that the likelihood ratio statistic was valid only if the assumption that three persons contributed to the upper lip DNA sample were correct. He argued that Casey was "covered in DNA" none of which Lee could attribute to defendant, and that the DNA on her lips, like the other DNA, could have been transferred to Casey innocently that night with her friends. He argued that the lay witnesses' estimation of the assailant's age was off by nearly 30 years (defendant was 52 when Casey was assaulted), that Maria's description of the assailant's hair could not be accurate because the video showed the assailant wearing a hoodie, and that the prosecution failed to establish that the car driven by defendant was the car Luis saw on Alviso Street because Luis's recollection of the car at trial was different from the description he gave after the assault.
C. VERDICTS AND SENTENCE
Defendant was found guilty of forcible sexual penetration (§ 289, subd. (a)(1)(A); count 1), forcible oral copulation (§ 288a, subd. (c)(2)(A); count 2), and robbery (§ 211; count 3). The jury found true allegations related to counts 1 and 2 that defendant had kidnapped Casey within the meaning of section 667.61, subdivisions (b) and (e), and that he had previously committed rape and/or oral copulation against Susan Doe, pursuant to section 667.61, subdivisions (a) and (d)(1). Defendant admitted the prior rape and forcible oral copulation convictions, both alleged to be strike offenses under section 667, subdivisions (b)-(i), with the rape conviction also alleged to be a serious felony within the meaning of section 667, subdivision (a).
On count 1, defendant was sentenced to 25 years to life under section 667.61, subdivision (a), plus 25 years to life for each prior conviction under the Three Strikes law (§§ 667, subds. (b)-(i), 1170.12), plus a five year consecutive term under section 667, subdivision (a), for a total term of 75 years to life consecutive to five years. Defendant received the same sentence on count 2, to run consecutive to any other punishment, and a 25-years-to-life sentence consecutive to five years on count 3, for an aggregate term of 175 years to life consecutive to 15 years.
II. DISCUSSION
A. SUBSTANTIAL EVIDENCE
Defendant argues that the expert testimony regarding the likelihood ratios in this case had no evidentiary value because the expert did not explain how the ratios were calculated, or provide the kit manufacturer's underlying frequency data for the alleles identified at the tested loci. Without the likelihood ratios, defendant's argument continues, there was insufficient evidence to convict defendant of the charged offenses. Citing Jennings v. Palomar Pomerado Health Systems, Inc. (2003) 114 Cal.App.4th 1108 (Jennings), defendant argues that Lee's "opinion is purely conclusory because [it is] unaccompanied by a reasoned explanation connecting the factual predicates to the ultimate conclusion." (Id. at p. 1117.) As we understand defendant's argument, the likelihood ratio equation and underlying data must be part of the "reasoned explanation connecting the factual predicates [the DNA samples] to the ultimate conclusion [the likelihood ratio statistic.]" (Ibid.) According to defendant, without walking the jury through the statistical calculation using the kit manufacturer's data, "[the] opinion has no evidentiary value because an 'expert opinion is worth no more than the reasons upon which it rests.' " (Ibid.; see also People v. Prunty (2015) 62 Cal.4th 59, 85 [expert testimony that failed to include facts, identify materials relied on, or provide reasons supporting conclusion "had no value to the jury"]; Pacific Gas & Electric Co. v. Zuckerman (1987) 189 Cal.App.3d 1113, 1135 (Zuckerman) [expert's conclusion based "upon assumptions which are not supported by the record, upon matters which are not reasonably relied upon by other experts, or upon factors which are speculative, remote or conjectural," is of no evidentiary value and lacks substantial evidence].)
We are not persuaded by defendant's arguments. Under Evidence Code section 801, an expert's opinion may be "[b]ased on matter ... , whether or not admissible, that is of a type that reasonably may be relied upon by an expert in forming an opinion upon the subject to which his testimony relates[.]" (Evid. Code, § 801, subd. (b).) Thus, experts may " 'rely on facts or data ... if of a type reasonably relied on by experts in forming and rendering opinion upon the subject in question' " without the data or facts themselves being admitted into evidence. (People v. Brown (2001) 91 Cal.App.4th 623, 653-654.) " '[W]hat are reliable matter depends on the particular subject[.]' " (Zuckerman, supra, 189 Cal.App.3d at p. 1134.) Here, Lee reasonably relied on the population data provided by the kit manufacturer given that forensic laboratories in the United States create and utilize their own databases (Brown, at p. 630, fn. 11), and experts in the field rely on those databases to calculate the statistical significance of a match. (People v. Nelson (2008) 43 Cal.4th 1242, 1258.) Further, Lee testified that the Identifiler Plus kit was accepted in the field of DNA analysis.
The record does not suggest that Lee's opinion was based on assumptions without factual support, speculation, conjecture, or otherwise lacked reason such that his conclusions were deprived of evidentiary value. Lee analyzed the swab taken from Casey's upper lip, and buccal samples taken from Casey and defendant using an established technology. (People v. Jackson (2008) 163 Cal.App.4th 313, 321 [DNA analysis using Identifiler kit accepted in scientific community].) He determined that the upper lip swab was a mixed DNA sample containing DNA from Casey, a second major contributor, and a minor third contributor. He identified three types of statistical probabilities used to determine the relevance of a DNA match, and he explained that he selected the likelihood ratio, used in the scientific community, because it would provide the most accurate statistic for the circumstances. He concluded that the likelihood the DNA mixture from Casey's upper lip swab contained Casey's DNA, defendant's DNA, and an unknown third person's DNA is 140 million times more likely than the mixture containing Casey's DNA plus DNA from two unknown persons in the African-American population. On its face, Lee's opinion was " ' "reasonable in nature, credible, and of solid value." ' " (Zuckerman, supra, 189 Cal.App.3d at p. 1135.)
Defendant urges us to conclude "that the total absence of the data and calculations underlying the statistical conclusions presented in this case deprives those conclusions of evidentiary significance" because the case presented "a complex scientific problem" requiring "[m]eaningful statistical evaluation." But an expert's role is to assist the jury on subjects "beyond common experience" (Evid. Code, § 801, subd. (a)), and a step-by-step explanation of a complex formula underlying a DNA probability statistic would provide little assistance to the jury. (People v. Venegas (1998) 18 Cal.4th 47, 83-84.) Further, the failure to present the underlying population data and statistical equation to the jury does not mean that a meaningful statistical evaluation was not performed, or that defendant had no opportunity to test the expert's conclusions. The prosecution is required to provide the defendant with expert reports, including the results of any scientific tests. (§ 1054.1, subd. (f).) With that information in hand, and after consulting with two DNA experts, defendant could have challenged Lee's conclusions under People v. Kelly (1976) 17 Cal.3d 24 (Kelly). He also could have asked Lee on cross- examination to walk the jury through his calculation (Evid. Code, § 721, subd. (a)), but he elected to do neither. His sufficiency of the evidence argument fails.
In People v. Venegas, supra, 18 Cal.4th 47, the California Supreme Court held that the statistical calculation phase of a DNA analysis is subject to review under Kelly to determine whether the methodology used (in that case to calculate the probability of a random match) was generally accepted in the scientific community, and whether correct scientific procedures were followed in calculating the probability. (Id. at p. 84.) Although decisional law in California has not addressed whether likelihood ratios are of general acceptance in the scientific community, defendant acknowledges in his appellate briefing that likelihood ratios are used in DNA analysis, citing scientific publications by the National Research Council (The Evaluation of Forensic DNA Evidence, 1996), John M. Butler, Ph.D. (Advanced Topics in Forensic DNA Typing: Interpretation, 2014), and the Scientific Working Group on DNA Analysis Methods (SWGDAM Interpretation Guidelines for Autosomal STR Typing by Forensic DNA Testing Laboratories, 2010), and he does not challenge Lee's analysis on Kelly grounds.
B. INEFFECTIVE ASSISTANCE
Defendant argues that trial counsel was ineffective for failing to argue to the jury that the DNA statistical conclusions had not been explained or supported by underlying data. Defense counsel challenged those conclusions by arguing that they "were only valid if you assume that there were only three individuals" contributing to the upper lip swab. But according to defendant, counsel should have argued that the DNA evidence had no probative value in the absence of any foundation for the statistical claims.
An ineffective assistance claim requires a showing that counsel's performance fell below an objective standard of reasonableness and that defendant was prejudiced by the deficient performance. (Strickland v. Washington (1984) 466 U.S. 668, 687.) A reviewing court " 'presume[s] that counsel's performance fell within the wide range of professional competence and that counsel's actions and inactions can be explained as a matter of sound trial strategy.' [Citation]." (People v. Ledesma (2006) 39 Cal.4th 641, 746.) Prejudice requires "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." (Strickland, at p. 694.) A reasonable probability is "a probability sufficient to undermine confidence in the outcome." (People v. Williams (1997) 16 Cal.4th 153, 215.)
On this record, there is no showing of deficient performance for failure to argue that the statistical probabilities offered by the prosecution's expert lacked evidentiary value. As we have explained, there is no evidentiary requirement that a jury be provided with the underlying data or mathematical equations supporting an expert's conclusion in order for that evidence to have value. Without a showing that the probabilities were calculated incorrectly or that the expert relied on faulty population data, there was no factual basis to argue that Lee's statistical conclusions were valueless.
Likewise, defendant has failed to show prejudice. Given the likelihood that the prosecution would have argued on rebuttal that defendant had full opportunity to cross-examine Lee on the accuracy of his conclusions, but declined to do so, and that there was no evidence showing Lee's calculations were inaccurate, we see no reasonable probability of a different result had counsel argued that the DNA evidence lacked probative value.
C. KIDNAPPING JURY INSTRUCTION
Defendant argues that the court erred by instructing the jury on simple rather than aggravated kidnapping required for the one-strike sentence enhancement imposed. No error occurred, as the charging documents alleged a simple kidnapping circumstance under section 667.61, subdivisions (b) and (e), not the aggravated kidnapping enhancement under section 667.61, subdivisions (a) and (d)(2). The instructions and verdict are consistent with what the prosecution alleged and proved. By its terms, the simple kidnapping enhancement applied in the absence of circumstances described in subdivision (d)(2). (§ 667.61, subd. (e)(1).) No showing under subdivision (d)(2) that "movement of the victim substantially increased the risk of harm to the victim over and above that level of risk necessarily inherent in the underlying offense" is necessary to prove a simple kidnapping allegation. (People v. Jones (1997) 58 Cal.App.4th 693, 709-710.)
The jury found true a separate allegation under section 667.61, subdivision (a) that defendant had been previously convicted of an offense under the circumstances set forth in section 667.61, subdivision (d)(1), namely rape and/or oral copulation. Section 667.61, subdivision (a) mandates a 25-years-to-life sentence "under one or more of the circumstances specified in subdivision (d)." Defendant mistakenly attributes the one strike enhancement to a qualifying circumstance under section 667.61, subdivision (d)(2) (aggravated kidnapping), rather than to his 1992 convictions for rape and forcible oral copulation, which qualify for the enhancement under section 667.61, subdivision (d)(1). The prior convictions alone subjected defendant to subdivision (a)'s mandatory sentence based on subdivision (d)(1). Aggravated kidnapping was not alleged, and no corresponding instruction was required.
Subdivision (d) of section 667.61 contains seven subparts. Subparts 2 through 6 refer to circumstances related to the manner in which the currently charged crime was committed, including subdivision (d)(2), aggravated kidnapping, which was not alleged here. Unlike subparts (d)(2) through (d)(6), subpart (d)(1) does not implicate the circumstances of the present offense in any way. (People v. Huynh (2014) 227 Cal.App.4th 1210, 1215.)
Defendant was subject to the 25-years-to-life sentence mandated by section 667.61, subdivision (a). Under section 654, the simple kidnapping allegation under section 667.61, subdivision (b) had no impact on defendant's sentence.
D. PROPENSITY EVIDENCE
Defendant argues that the trial court abused its discretion and violated his federal due process rights by allowing testimony under Evidence Code section 1108 from Susan Doe, the victim of the sexual assault perpetrated by defendant in 1992. Defendant argues that evidence of the 1992 assault should have been limited to the convictions in that case, and that testimony regarding the facts underlying that assault was unduly prejudicial under section 352. Specifically, defendant argues that the 1992 assault was dissimilar to the present assault, and thus of limited probative value, because it involved (1) a home invasion, (2) different sex acts, (3) threats and weapons, and because (4) it was remote in time. According to defendant, the lurid details of the earlier attack—in the victim's bedroom when her husband was away, with four children in close proximity, using a knife and duct tape—were used by the prosecution for no other reason other than to inflame the jury's emotions.
Statutory references in the remainder of this opinion are to the Evidence Code.
Section 1108 provides for the admissibility of other evidence of sexual offenses in the prosecution of a current sexual offense, subject to section 352. (People v. Lewis (2009) 46 Cal.4th 1255, 1288.) In conducting a section 352 analysis for evidence of another sex crime proffered under section 1108, "trial judges must consider such factors as its nature, relevance, and possible remoteness, the degree of certainty of its commission and the likelihood of confusing, misleading, or distracting the jurors from their main inquiry, its similarity to the charged offense, its likely prejudicial impact on the jurors, the burden on the defendant in defending against the uncharged offense, and the availability of less prejudicial alternatives to its outright admission[.]" (People v. Falsetta (1999) 21 Cal.4th 903, 917.) We review the trial court's ruling admitting evidence under section 1108 for abuse of discretion. (Lewis, at p. 1288.)
We find no abuse of discretion on this record. Defendant's 1992 crimes were highly probative proof that defendant's DNA was on Casey's lips not due to an innocent transfer but because, as someone with a disposition to commit violent sex crimes, defendant was her assailant. (See People v. Cordova (2015) 62 Cal.4th 104, 134 [section 1108 evidence relevant to rebut defense theory that defendant's sperm entered victim's body by innocent means].) Although the prior conviction documents without Susan's testimony would have had less impact on the jury, the documents alone would have been significantly less probative because they did not show the similarities between the assaults: Both occurred in the San Jose metropolitan area, both were stranger assaults on vulnerable women, both occurred late at night, and both involved brute force. Given the similarities between the assaults, the additional circumstances of the 1992 assault were not "inflammatory in the extreme." (People v. Harris (1998) 60 Cal.App.4th 727, 738, italics in original.)
The remoteness of the 1992 assault did not undercut its probative value, given that defendant remained incarcerated on the 1992 convictions until 2009, and the 2012 attack occurred only six days after his release from parole, which had included continuous electronic monitoring. Further, the prejudicial impact of the evidence was lessened by the jury being made aware that the previous assault resulted in convictions. Jurors were not required to determine whether defendant committed the 1992 offenses, nor would they have been tempted to convict defendant in order to punish him for earlier conduct. (People v. Falsetta, supra, 21 Cal.4th at p. 917.)
Even if admitting Susan's testimony were deemed erroneous under state law, the ruling did not render the trial fundamentally unfair (People v. Partida (2005) 37 Cal.4th 428, 439), nor singly determine its outcome (People v. Watson (1956) 46 Cal.2d 818, 834-835). Semen containing defendant's DNA profile was found on Casey's lip, the statistical probability of defendant being the source was astronomical, and defendant's propensity to commit serious sexual offenses against women was established by documentary evidence of the 1992 convictions.
Finding no error, we necessarily reject defendant's cumulative error argument.
III. DISPOSITION
The judgment is affirmed.
/s/_________
Grover, J.
WE CONCUR:
/s/_________ Rushing, P.J. /s/_________ Premo, J.