Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County. Ann I. Jones, Judge, Los Angeles County Super. Ct. No. BA260661
John A. Colucci, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Deborah J. Chuang and Mary Sanchez, Deputy Attorneys General, for Plaintiff and Respondent.
ASHMANN-GERST, J.
After a court trial, defendant and appellant Rubin F. Egland (defendant) was convicted of kidnapping to commit rape (Pen. Code, § 209, subd. (b)(1)) (count 1); forcible rape (§ 261, subd. (a)(2)) (count 2); and genital and anal penetration by a foreign object (§ 289, subd. (a)) (count 3). The trial court found true the allegation that defendant personally used a firearm within the meaning of section 12022.5, subdivision (a)(1) in the commission of counts 1 and 3 and that he used a firearm within the meaning of section 12022.3, subdivision (a) in the commission of counts 2 and 3. The trial court also found that the circumstances of the crime satisfied the requirements of section 667.61, subdivisions (a), (b), (d), and (e).
All further statutory references are to the Penal Code unless otherwise indicated.
Section 667.61 provides for minimum sentences for sex offenders whose crimes are committed under one or more enumerated circumstances.
The trial court employed the one-strike sentencing scheme pursuant to section 667.61, subdivisions (f) and (g) and sentenced defendant to an indeterminate term of 25 years to life in count 3. The trial court stayed a life sentence in count 1 pursuant to section 654. The trial court imposed a determinate term of 11 years in count 2, which consisted of the midterm of six years and a five-year enhancement pursuant to section 12022.3, subdivision (a). The trial court ordered the sentences in counts 2 and 3 to be served consecutively pursuant to section 667.6.
Section 667.6, subdivision (c) provides that a consecutive term may be imposed for each violation of an offense specified in subdivision (e) if the crimes involve the same victim on the same occasion. Subdivision (e) includes the crimes in counts 2 and 3.
Defendant appeals on the grounds that: (1) the evidence was insufficient to sustain the conviction where the prosecution expert testimony and DNA evidence were contradictory; (2) the trial court applied an erroneous standard in ruling on defendant’s section 1118 motion for acquittal, and the failure to apply a “beyond a reasonable doubt” standard was structural error requiring automatic reversal; (3) the trial court erred in permitting the prosecution to introduce so-called rebuttal testimony that could have and should have been presented during the prosecution’s case-in-chief, that went beyond the scope of rebuttal, and that constituted prosecutorial misconduct and denied defendant his right to due process; (4) the trial court imposed an unauthorized life sentence as punishment for defendant’s conviction of kidnap for rape in violation of section 209, subdivision (b)(1), and the sentence violated ex post facto proscriptions and due process guarantees; (5) imposition of a five-year sentence for the section 12022.3 enhancement was unauthorized because that section does not provide for such a sentence; and (6) the abstract of judgment contains a clerical error, does not reflect the oral pronouncement of the trial court, and requires correction to strike reference to section 12022.53, which did not exist at the time of the offense.
FACTS
I. Prosecution Evidence
On December 13, 1996, Rosa G. (Rosa) was living in an apartment on Century Boulevard in Los Angeles. Shortly after 10:00 a.m. she returned alone to her apartment and parked her car. As she was looking in the car trunk, a Black male came up to her and pulled a gun. At gunpoint he forced her to lead him to her apartment where he told her to go into the bedroom. He asked for Rosa’s jewelry and she gave him her earrings. He told her to remove her pants and to bend over on the bed. The man penetrated Rosa’s vagina with his penis. After he removed his penis, he penetrated her vagina with his gun. He then lifted Rosa up by her shirt and led her into the living room where he pulled the telephone out of the jack and began to ransack the apartment.
After the man left Rosa’s apartment she went to the apartment of her uncle, who lived across the hall from her. Rosa was upset and crying and her uncle called the police. Later that day police took Rosa to a hospital for examination.
Rosa had only a glimpse of her attacker while they were standing at her car, since he remained behind her afterwards. She remembered his being a little taller than she (Rosa is five feet three inches tall) and younger than she (she was 25 at the time). She was unable to identify anyone from pictures shown her by a Detective Stone in 2004. She could not identify the man’s face at the time of trial. After court proceedings began, she realized that defendant’s photograph had been among those shown to her, but she had never seen him before, had no passing acquaintance with him, and did not know anyone with his name.
Rosa was familiar with all of her maternal aunts and uncles, and she knew all of their children. None of their children bore the name “Rubin.” None of her maternal aunts married men named “Egland.” Rosa also knew all the children of her paternal aunts and uncles. None of her paternal cousins was named “Rubin, ” and none of her father’s siblings had “Egland” as a last name.
Rosa would recognize anyone with whom she had ever had a consensual sexual relationship, and she did not recognize defendant as a consensual sexual partner of hers. She told police after the preliminary hearing that at the time of the sexual assault she was having relations with a Mr. Mixon and a Mr. Crayton.
Carole Stephenson is the clinical manager of the sexual response team at California Hospital Medical Center in Los Angeles. The form filled out at Rosa’s examination indicated she had engaged in consensual intercourse within the 72 hours preceding the attack.
Derrick Spencer (Spencer) is Rosa’s uncle. He had never heard Rosa mention anyone named Rubin or Egland. At the preliminary hearing, defendant looked over at Spencer and the people with him and called out a name, saying “I know you.” No one in Spencer’s party had the name. Spencer could not recall what the name was.
Officer Luis Carranza of the Los Angeles Police Department responded to Rosa’s apartment in 1996. Rosa was visibly shaken. Officer Carranza took her to the hospital and took possession of the physical evidence, including biological specimens gathered during her examination. Each individual piece of physical evidence from the rape kit was given a separate evidence number in this case. Officer Carranza did not seek to have the scene dusted for fingerprints and did not take any photographs.
Detective Peter Stone of the Los Angeles Police Department is assigned to the Operation South Bureau Sexual Assault Unit and was given the task of working on Rosa’s case. The case came to police attention again because a DNA comparison made by the California Department of Justice (DOJ) appeared to identify someone in CODIS (Combined DNA Index System) who could have been involved in Rosa’s attack. The DOJ notified the Los Angeles Police Department. CODIS identification is applied to a pool of samples provided by convicted sexual offenders and perpetrators of certain other crimes.
Detective Stone identified the DNA contributor as defendant, who was in state prison in San Diego. Detective Stone placed a photograph of defendant in a photographic array and showed the array to Rosa. Rosa was unable to make an identification from the array, and she was also unable to identify defendant in individual photographs shown to her. Detective Stone received a court order authorizing the taking of physical samples from defendant for a DNA comparison on July 27, 2004. He explained to defendant that he was taking a saliva sample for DNA comparison purposes. He informed defendant that he was not there to discuss the facts of the case or to provide defendant with any information about the investigation. Defendant nevertheless wanted to provide his side of the story. He said he was not responsible for the crime. He said he always had a gun and committed crimes in the neighborhood of the attack but not this particular crime. Defendant told the detective that he knew where the victim worked and what type of car she had, and he claimed they had had a consensual sexual relationship. Detective Stone obtained the cheek swab and booked it into evidence under the original D.R. number assigned to Rosa’s case in 1996.
Kelly Brockhohn (Brockhohn) is employed by Crime Scene Technologies, a private forensic DNA laboratory in San Diego. She was previously employed by Orchid Cellmark (Cellmark), the same type of company. At Cellmark her duties were to receive the DNA evidence, record it, and analyze it. Brockhohn testified that Polymerase Chain Reaction (PCR) is a technique used to make millions of copies of specific small regions of a DNA sample—the regions that are different from individual to individual. By amplifying and making copies of these DNA regions, further tests and comparisons to known profiles can be made. These regions consist of 13 core short tandem repeat (STR) loci. STR are places in the DNA where sections are repeated a specific number of times, and the number of repeats varies between individuals.
Brockhohn explained that the first step is to isolate the DNA from the material where it is located, such as clothing. The method of isolation depends on the nature of the biological material and the size of the sample. The extracted DNA is amplified by the PCR process, and the amplified product is passed through an analyzing machine that provides raw data for analysis by means of capillary electrophoresis.
Brockhohn stated that all individuals have two alleles at any particular point along their DNA, one from each parent. The alleles can be the same or different. After the raw data is generated, it is subject to a software application, and the software “calls” the alleles, which the analysts use to compare different items. The analysts use a control with each sample called the allelic ladder. The allelic ladder gives them the most common alleles at each of the 13 loci. There are alleles that are not on the allelic ladder that occasionally appear and that are very rare. The fact that there are alleles that are found more commonly at a particular location allows scientists to develop databases that calculate the frequencies of occurrences of the alleles at that location within populations. This allows for forensic DNA comparisons and for determining whether a particular profile is a match or not. The particular 13 loci used for forensic DNA comparison and identification constitute a standard used throughout the scientific community. Brockhohn explained the standard operating procedures used to ensure the DNA being tested is not contaminated.
Brockhohn explained how one compares DNA evidentiary samples with a known profile from a particular donor. The scientists look at the data showing the number of alleles that have been “called” and the peak height for each allele, which is shown on a graph. In this way they determine how many people may have contributed to the DNA source. The peak height is also useful in determining which alleles go together as heterozygotes.
Brockhohn explained that when an individual inherits his two sets of DNA, he inherits the same alleles or different alleles in each locus. If the person inherits different alleles, the locus is considered a heterozygote. If the alleles are the same, it is considered a homozygote. If two of the same alleles are present, the graph shows a single peak for that allele. If a person is heterozygous at a particular locus, the peaks at that locus would be within a particular range of each other. Specifically, according to the standard used at Cellmark, the smaller peak must be within 50 percent of the larger peak to show whether a particular set of two alleles is more likely to be from a single person. Otherwise, if the smaller of the two peaks is less than 50 percent of the larger, the two peaks are more likely to be from two different individuals in a single DNA sample. Scientists take the profile from a particular known donor and compare it to the evidentiary item and see if the alleles are the same.
Brockhohn received evidence for the instant case at Cellmark, and she verified the case numbers used by Cellmark and the police agency. The evidence consisted of a vaginal swab, a blood sample, and an oral swab, and Brockhohn performed PCR and STR testing on all three items. She was able to generate a profile associated with the blood sample provided by Rosa. A “profile” means a chart depicting the 13 sets of alleles, one for each locus, with either two numbers that go with each locus for a heterozygous person, or a single number for the locus if the person is homozygous. She was also able to generate a profile for the oral swab, which corresponded to defendant.
With respect to the vaginal swab, Brockhohn first performed a differential extraction to isolate intact sperm cells from nonsperm cells in the sample. This results in a sperm fraction and a nonsperm fraction. Brockhohn determined that the nonsperm fraction contained DNA from more than one individual, and it contained DNA from a female. The primary profile obtained from the sample matched the DNA profile obtained from Rosa’s blood sample. The primary contributor is the one who contributed the greatest amount of DNA.
When asked how another person’s DNA could be found in the nonsperm fraction, Brockton replied that it could be epithelial cells, or it could be that the outer sperm opened up and the DNA was freed before the differential extraction was completed. Sperm cells sometimes open up, cease to look like sperm, and become generic DNA. In this case, the non-intact sperm cells were removed by the differential extraction and remained in the nonsperm fraction. Epithelial cells cover our entire bodies and slough off on contact. It is possible for a male to slough off epithelial cells from his penis, finger, or something else inserted into a vagina in the course of a sexual contact, with the result that these cells remain present in addition to the sperm cells deposited. The male’s epithelial cells would become part of the nonsperm fraction when it is extracted.
Brockhohn attempted to compare the secondary profile in the nonsperm fraction against the profile generated by the defendant. Defendant could not be excluded as a contributor at six of the 13 loci. No conclusion could be drawn in the remaining seven loci because there was no data at those remaining loci that did not come from the primary contributor. Therefore, she could not reach any meaningful statistical conclusion as to whether defendant’s profile could be found in the nonsperm fraction.
As for the sperm fraction, the PCR and STR analyses produced data showing that DNA from more than two individuals was present. Rosa and defendant could not be excluded as contributors, but there were also types that could not have come from Rosa or defendant. The analysis could not tell specifically the number and gender of persons represented within the loci. There was definitely one male, but there might have been more than one male. This is because the amelojenin marker, which is the sex determination marker, indicated that there was DNA from a male, but it does not say how many males.
Brockhohn calculated the statistical possibility of finding the profile attributed to defendant within the sample that was separated into the sperm fraction. The frequency of a random person having a profile that would be included in the mixture of types observed in the DNA profile obtained from item 2 was approximately 1 in 280, 000 unrelated individuals in the African-American population. Brockhohn testified that control tests indicate there were no problems with the machinery or errors in calculations, and her conclusions were subject to secondary internal review at Cellmark.
Saliva samples from Mr. Crayton and Mr. Mixon were excluded as contributors to the sperm fraction and nonsperm fraction of the item 2 sample.
Brockhohn commented on two tables she generated based on the data that she collected and analyzed and which were marked as People’s exhibit 14. The tables were very similar but were the result of different tests. She explained that the PCR process she used had two separate amplification procedures. One used a Profiler Plus amplification kit and one used a COfiler amplification kit. When they are combined they give the 13 loci generally used and accepted in forensic case work. As a check, they have two overlapping loci. The trial court asked Brockhohn why the COfiler amplification of the sperm sample showed an allele 16, but the Profiler amplification showed no allele 16 for the exact same locus. Brockhohn explained that there were two separate amplifications, and a technician does not inject the same sample into each of the two amplifications. Although the results were not exactly the same, they were consistent with each other, which indicated there was nothing wrong with either of them.
Brockhohn saw nothing in the reports or charts generated by defense witness, Dr. Sowers, that caused her to question her conclusions. In her opinion, Dr. Sowers used the table to come up with a scenario in which there was a single contributor of all the otherwise-unexplained allele information rather than looking at the data (the charts) and arriving at an explanation consistent with the data. Brockhohn testified that all the samples in this case were kept at the appropriate temperature. Even if samples are physically degraded, however, the degradation would merely render the identification of the sample more difficult. It would not lead to a mistaken inclusion of a particular person’s DNA.
II. Defense Evidence
Dr. Lawrence Sowers, a professor of medicine and biochemistry at Loma Linda University School of Medicine, was appointed by the trial court as an expert for the defense. He had “some problems” with the Cellmark report with respect to the methods used for determining the DNA profile, the methods used to derive the statistics, and the interpretation of the DNA. He did not approve of the police department sending the DNA evidence reference samples and the evidence samples in the same package to Cellmark. This introduced a very serious issue of potential contamination. He noted that the blood sample from the victim (a bloodstained card) and the buccal swab from the defendant were placed in paper coin envelopes. Furthermore, the samples were identified with names, which was not the practice in “virtually all medical centers.” This affected operator bias. He did not believe that degradation was a problem in this case.
Dr. Sowers believed that an inadequate amount of extracted DNA was used as the sperm fraction sample, and it was from this sample that Cellmark concluded that the DNA of at least three people was represented. One of the standard requirements in the evaluation of DNA forensic evidence is to quantify the amount of DNA prior to PCR amplification. In this case, this was done using a technique called a “slot blot.” He was of the opinion that the slot blot test showed that there was an inadequate amount of DNA. There was a danger that amplification was not done in a balanced manner, which is a problem inherent in PCR amplifications, but compounded when the sample is inadequate. Some of the alleles may not have been amplified. One of his concerns was the results for the D3 allele. One of the assays observed alleles at loci 14, 15, and 16, but the other, which should have been identical, observed alleles at only 14 and 15. He found the results unreliable unless they could be reproduced in a retest of the sample.
Dr. Sowers testified he was very concerned that all of the referenced samples and the evidence sample were amplified together at the same time. This introduced a very significant chance that the evidence sample would in fact be contaminated by the reference sample. The FBI policy manual specifically states that evidence samples should be processed first and should not be processed with reference samples.
Dr. Sowers stated that the person running the tests has to keep very careful logs as to the order in which the samples are run on the instrument and has to very carefully document all controls. The documentation from the Cellmark tests in this case shows that certain samples were re-run, and there is no record of why this was done. Certain files were unaccounted-for, and it was unclear which data was used to get the tabulated data.
Dr. Sowers’s readings of the alleles attributed to the victim and defendant and the unaccounted-for alleles at certain markers of the sperm-fraction sample show that the sample was either contaminated, and therefore unreliable, or it was not contaminated, and the unaccounted-for alleles must represent the DNA profile of the perpetrator. Because defendant has neither of those alleles, he would have to be excluded as the perpetrator.
Dr. Sowers stated that the database used to arrive at the statistic of 1 in 280, 000 was based on a small database that uses somewhere between 180 and 210 individuals. Dr. Sowers did not know the frequency with which this particular database was used and relied upon in the forensic context. Dr. Sowers testified that the method of calculation used by Cellmark, the product rule, “has been thrown out” by the scientific community and held to be unreliable. When a DNA sample contains a mixture, the product rule is statistically unreliable. Dr. Sowers said that a perpetrator genotype must be derived and a match established. A calculation would then be based on those results. Dr. Sowers had not seen a perpetrator’s profile generated from the DNA evidence in this case.
Dr. Sowers believed that Rosa and defendant were related. Defendant has 23 independent alleles and 12 of those are shared with the victim. This was a very large degree of genetic overlap. The Cellmark calculation was predicated upon the presumption that the samples were from individuals who were not genetically related. A genetic relationship between Rosa and defendant would render unreliable Cellmark’s statistics, since instead of a random assortment of alleles from the general population, you have two people with more similar-looking DNA. Dr. Sowers calculated that the probability of two unrelated individuals sharing the alleles shared by Rosa and defendant would be 1 in 10 million. Dr. Sowers believed that the level of the relationship between Rosa’s and defendant’s alleles did not rise to the level of siblings. His calculations arrived at the conclusion that the most likely relationship between the defendant and the victim was that of first cousins.
Dr. Sowers believed that defendant was a justified suspect, but he did not believe one could come to a meaningful conclusion that he must be the perpetrator. He believed that the appearance of defendant’s alleles in the sample could very likely have occurred not because his DNA is there but rather because he is genetically similar to the victim, whose DNA was known to be there.
III. Rebuttal Evidence
Steven Myers (Myers) is a senior criminalist at the DOJ, Jan Bashinski DNA Laboratory. He testified regarding the analysis, technical notes, and report of Diane Fleming (Fleming), a criminalist employed by the DOJ who analyzed the evidence in the instant case. Fleming had no record of being involved with instances of contamination at DOJ. Fleming took the evidence through the extraction, quantization, PCR amplification, electrophoresis, and interpretation stages. She divided the DNA from the vaginal swab into a sperm fraction and a nonsperm fraction. She interpreted the nonsperm fraction as a mixture but was able to identify the majority of the DNA in that fraction as matching Rosa’s profile. Fleming was able to generate a single source male profile from the sperm fraction. This profile was entered into CODIS and searched against the convicted felon database. Three reviewers accepted Fleming’s conclusions and methodology.
Myers reviewed Fleming’s results and calculated the probability of a random person taken from the population having a profile matching the profile of the unknown single-source male profile in the sperm fraction. In such calculations, the DOJ laboratory uses three different databases based on data published by the FBI. Myers estimated that, for African-Americans, the chance of finding someone with the suspect’s profile was approximately 1 in 290 trillion. For Caucasians it was 1 in 1.8 quadrillion, and for western Hispanics, it was approximately 1 in 990 trillion. Under DOJ laboratory standards, when all three of the values are rarer than 1 in 10 million, the DOJ concludes it is strong evidence that anyone who matches the profile is the donor of the DNA.
Fleming did not find a mixture in the sperm fraction. According to Myers, there were some results that could have been due to carryover from the nonsperm fraction, but they were at a level that was determined to be inconclusive based on the DOJ interpretation guidelines. According to Meyers, there was only a mixture of DNA in the nonsperm fraction. In the sperm fraction the technician merely found some results that were under the threshold and inconclusive.
Myers testified that if a mixture were encountered in a piece of physical evidence, peak-height ratios could be used to make a meaningful analysis of the mixture. Contrary to Dr. Sowers, Myers believed that the only relevant calculation was that there was a “peak” in 280, 000 chances that any person picked at random could be included in that mixture. Dr. Sowers’s calculations that the identified alleles could be used to create six billion possible genotypes was actually underestimating the number, in that 660 quintillion possible profiles could be created from the data. These numbers were “just numbers games.” Brockhohn’s method of calculating the 1 in 280, 000 figure, the product rule, is still used by a lot of technicians when they are not sure of the number of contributors to a sample. A recommended alternative to this method, the likelihood-ratio approach, usually has the result of making it more incriminating to a known suspect.
Myers disagreed with Dr. Sowers’s statement that the scientific community is unsure about how to deal with mixtures in samples. Myers asserted there were fundamental concepts that people use when doing mixture interpretation, and he explained them to the trial court.
Myers believed Dr. Sowers misunderstood how the slot blot test is actually run. The amount one sees on the slot blot is not the amount of total DNA present, contrary to Dr. Sowers’s interpretation.
Myers disagreed with Dr. Sowers’s assertions that the DNA was not packaged and sent properly. Myers stated that the methodology used to send the evidence was consistent with standard practice. Myers explained that the methodology used in his lab made contamination very unlikely. Controls are run during the reagent stage and amplification stage that would reveal any contamination.
Myers testified that the mere fact that a male sample was transmitted along with a rape kit does not necessarily result in operator bias. In addition, the review process by two other people obviates the possibility that results were obtained due to operator bias.
Myers testified that he has attended several courses in statistical issues and kinship testing in forensic science and has taught such a course for staff at his laboratory. He performed several calculations with regard to Rosa and the defendant. When calculating the probability of obtaining these profiles if the two persons were related as opposed to unrelated, the highest relatedness index was for first cousins and the lowest was for full siblings. However, the relatedness index of 1.6 found by Dr. Sowers was so close to 1, the break-even point, that there was no meaningful support for the hypothesis of relatedness or unrelatedness. Dr. Sowers’s calculation of probability was incorrect, and it gave a meaningless result in the context of this case.
Myers testified that there are differences from laboratory to laboratory as to the threshold for making an allele call. If a laboratory found in their validation studies that they had very sensitive instruments, for example, and that artifacts were being seen at a little higher level than in some other laboratories, they might vary the threshold and set a higher threshold to make an allele call. The fact that some of Fleming’s calls indicated an artifact instead of an allele was based on the DOJ laboratory’s guidelines.
Myers reiterated that using Fleming’s profile of a single source male, which she generated from the sperm fraction, he was able to calculate the probability that a random person unrelated to the victim would have this profile as 1 in 290 trillion for African-Americans. Adjusting the calculation to factor in the possibility of defendant being the victim’s first cousin reduced the chance to approximately 1 in 180 trillion, since it was 1.6 times more common. That is, there is a 1 in 180 trillion chance that an untyped first cousin of the victim would have this profile. Myers stated there was strong evidence that whoever matches that profile is actually the donor of the semen. Myers stated that defendant’s profile matched the profile in People’s exhibit 14 (generated by Cellmark).
Angela Zdanowski is employed by the Los Angeles Police Scientific Investigation Unit as a criminalist assigned to the serology DNA unit where she performs serological analysis. On July 23, 2003, she examined a cutting of the vaginal swab from Rosa and detected sperm. She testified that she returned the original vaginal swab evidence to storage and then obtained the reference sample from the victim. She cleaned her work area and took all anti-contamination measures between these analyses. The evidence was properly packaged when sent to the DOJ laboratory as part of the cold-hit program. In August 2004 Zdanowski again worked with the physical evidence connected to this case. She created a new blood card from the victim’s referenced blood vial and sent this, the oral reference sample, and the entire vaginal swab, properly packaged, to Cellmark.
IV. Surrebuttal
Dr. Sowers believed Cellmark’s calling of alleles rather than discounting certain manifestations as artifacts, as was done by the DOJ, was correct. Dr. Sowers could not name a laboratory or a text that has adopted as stringent a standard as he advocated. Dr. Sowers believed that if a stringent standard of calling alleles is not adopted there was a danger of “cherry picking, ” which means picking the data consistent with what you are trying to compare and dismissing the data not consistent with it. This is especially true when a small amount of DNA is available. Dr. Sowers stated that Myers was incorrect with regard to the slot blot test, and Myers failed to take into account the relative intensity of the spots. Dr. Sowers asserted that Fleming’s documentation showed she was working on five cases at the same time, and he expected technicians to work one case at a time.
Dr. Sowers believed that one document that had some information obscured was evidence that the DOJ operator was going to assign to this case a DNA profile that was not the defendant’s. There were also other notations that indicated more mistakes were made by the operator.
Dr. Sowers maintained that the Cellmark result was clearly a mixture, and the difference between that result and the DOJ result, which had few extraneous peaks, made it seem that it came from a different sample rather than the same sample as purported. He also maintained that the fact that an epithelial cell sample was discarded resulted in an out-of-order positioning of the corresponding sperm samples and indicates “something got mixed up.” Dr. Sowers believed that a true allele may look like an artifact and that it must be investigated further. Reamplification and retesting were required.
V. Sur-Surrebuttal
Myers testified that Dr. Sowers was misinterpreting the documents. The documents were photocopied from another case for the purpose of getting the results from the control samples relevant to the instant case into the file. Certain items were crossed out because they were not relevant to the instant case. He stated that many controls were involved in the processing of the samples and there was a match with the victim samples, which indicates things were in correct order.
DISCUSSION
I. Sufficiency of the DNA Evidence
A. Argument Summary
Defendant contends that there was insufficient evidence to sustain the convictions in his case, and he therefore suffered a violation of the due process clause of the Fourteenth Amendment. According to defendant, the DNA profiles, statistics, and expert testimony were contradictory and could not identify defendant as the perpetrator beyond a reasonable doubt. Defendant asserts that the prosecutor’s evidence impeached itself by its internal inconsistency.
B. Relevant Authority
“In reviewing a challenge of the sufficiency of the evidence, we apply the following standard of review: ‘[We] consider the evidence in a light most favorable to the judgment and presume the existence of every fact the trier could reasonably deduce from the evidence in support of the judgment. The test is whether substantial evidence supports the decision, not whether the evidence proves guilt beyond a reasonable doubt.’ [Citations.] The United States Supreme Court has held: ‘[T]his inquiry does not require a court to “ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt.” [Citation.] Instead, the relevant question is whether after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ [Citations.] . . . . The California Supreme Court has held, ‘Reversal on this ground is unwarranted unless it appears “that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].”’ [Citations.]” (People v. Gaut (2002) 95 Cal.App.4th 1425, 1430.)
Given this court’s limited role on appeal, defendant bears an enormous burden in arguing insufficient evidence to sustain the verdict. If the verdict is supported by substantial evidence, we are bound to give due deference to the trier of fact and not retry the case ourselves. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.)
C. Proceedings Below
The trial court did not elaborate on its views of the evidence upon rendering its verdict. In denying defendant’s new trial motion, however, the trial court stated: “[The DOJ] concluded [the alleles] were artifacts and were stuttered and did not have to be accounted for in doing present identification of the defendant’s profile so they had a non-mixture profile prepared by the DOJ. That profile was a perfect match to the profile of the defendant obtained later on in time.” When defense counsel argued that the stutter could have been an inherent feature of the allele and to discount it was improper, the trial court acknowledged that that was the opinion of the defense expert. The trial court added that the defense expert’s opinion “lacked foundation and forensic assessments and analysis.” The expert was not familiar with the various laboratories and did not know measurements, techniques, and thresholds appropriate to forensic analysis. He did not have sufficient foundation to opine on the appropriateness of the DOJ’s accounting. Myers, however, testified that every forensic laboratory has thresholds monitored by licensing agencies, and the DOJ laboratory was in compliance. The threshold used was therefore an appropriate one for determining whether something was an artifact versus DNA that was part of an allele.
The trial court found that the concerns flowing from the mixture analysis were “obviated by the ability of the DOJ without more to provide the corroborative evidence in support of the defendant’s own admissions in this case that make him the individual who was in fact the person who contributed the DNA found in the victim’s sample.” The trial court found that the foundational facts for defendant’s profile were proved beyond a reasonable doubt and corroborated by his admission. Furthermore, there was no evidence showing consent by the victim. The trial court stated that the scientific and nonscientific evidence was overwhelming and showed beyond a reasonable doubt that defendant committed the crimes and the acts alleged in the special allegations.
D. Evidence Sufficient
We disagree with defendant’s assessment of the disparity in the evidence and what he considers a resulting lack of credibility and substance. The evidence given by Brockhohn, the Cellmark representative, and that given by Myers from the DOJ differed only in their statistical calculations as to the probability that a random person would match the profile obtained from the DNA found in Rosa’s vaginal swab. The Cellmark figure of 1 in 280, 000 was due to the fact that Brockhohn identified peaks in the analysis of the DNA that she determined were alleles, leading her to conclude that there were at least two contributors of sperm in the sample. These same peaks were determined by the DOJ operator to be artifacts or stutters and not rising to the level of an allele. Therefore, the DOJ statistic showed that there was one donor only, and that the probability of a random African-American person matching the resultant profile was 1 in 290 trillion. Although the statistical probabilities are very disparate, the reasons for the differences in the results were satisfactorily explained to the trier of fact in a manner that did not disparage either conclusion. Moreover, Myers testified that the DOJ results and the Cellmark results were consistent with each other.
As the trial court noted during Myers’s testimony, Fleming seemed to agree with the trial court’s own analysis of the data, which was that the dubious allele calls were stutters or artifacts. For that reason the trial court had asked Myers if there was an element of “art” in reading the results or whether they were purely objective. The trial court stated that if Fleming’s conclusion were objectively based, her conclusion is different and results in a profile that avoids many of the issues generated by the cross-examination of the People’s first expert—issues which, the trial court noted, were not sponsored by the People.
Moreover, the DOJ evidence presented in rebuttal was not effectively countered by the defense expert on surrebuttal. Dr. Sowers resorted to impugning the methodology at the DOJ lab. He repeatedly cited the inadvertent destroying of an epithelial cell sample, noted by the operator, as evidence that the entire DNA analysis must have been faulty. He cited obliterated notations on some of the documents as evidence that the operator made mistakes. As Myers explained, items were crossed out on the report not because of errors but because they referred to analyses done for other cases. Privacy concerns led to their being crossed out before being used in the instant case. As for the epithelial cell disposal, it was effectively shown that this mistake could not have affected the profile obtained. As the trial court stated, the issue of the two alleles being artifacts was adequately explained by Myers, and Dr. Sowers lacked foundation to rebut Myers’s evidence. Dr. Sowers worked in an academic setting and could not legitimately give an opinion on the threshold used by the DOJ to call an allele versus an artifact. Dr. Sowers could not impugn the results beyond stating that retesting was called for.
We conclude that the evidence offered by the People was sufficient to support the trial court’s verdict. The differences between the Cellmark and DOJ readings of the DNA did not render them so inconsistent that they nullified each other. Through its questioning of the witnesses, the trial court demonstrated a mastery of the technical DNA evidence and was able to place in perspective the different findings of the two experts. Defendant’s argument is without merit and there was no due process violation.
II. Ruling on Section 1118 Motion
A. Argument
Defendant argues that the trial court applied an incorrect standard when ruling on his motion for acquittal, which was heard at the end of the prosecution’s case-in-chief. Because defendant had opted for a court trial, the motion was made under section 1118, which requires the court to weigh the evidence and grant the motion if it finds the defendant not guilty. The trial court here, however, applied the standard of section 1118.1, which is employed in cases tried before a jury and which requires the court to determine only if the evidence before it is insufficient to sustain a conviction of the offense or offenses on appeal. According to defendant, the failure to apply the proper standard on an adjudication of guilt or innocence is structural error and requires reversal without a showing of prejudice. In any event, the error was prejudicial because the evidence at the close of the prosecution’s case did not constitute proof beyond a reasonable doubt.
Respondent acknowledges that the trial court referred to section 1118.1 and the standard of proof applicable to that section when ruling on defendant’s motion for acquittal. Respondent contends the error was harmless.
B. Relevant Authority
Section 1118 provides in pertinent part that the trial court, on defendant’s or its own motion, “shall order the entry of a judgment of acquittal of one or more of the offenses charged in the accusatory pleading after the evidence of the prosecution has been closed if the trial court, upon weighing the evidence then before it, finds the defendant not guilty of such offense or offenses.” “Section 1118 . . . establishes a procedure for summary acquittal when the prosecution presents insufficient evidence of a criminal charge during its case in chief.” (People v. Norris (2002) 95 Cal.App.4th 475, 478.) “‘[T]he prosecution must establish a prima facie case by its own evidence before the defendant may be put to his defense.’ [Citation.]” (People v. Belton (1979) 23 Cal.3d 516, 520, italics omitted.)
Section 1118.1 provides that, upon the defendant’s motion at the close of evidence on either side, the trial court “shall order the entry of a judgment of acquittal of one or more of the offenses charged in the accusatory pleading if the evidence then before the court is insufficient to sustain a conviction of such offense or offenses on appeal.” This is the same test used by an appellate court in reviewing the sufficiency of the evidence to sustain a conviction. (People v. Trevino (1985) 39 Cal.3d 667, 695.)
C. Proceedings Below
At the close of the People’s case, defense counsel asked the trial court to “cut this case off at the pass, ” asserting there was no profile of the perpetrator. The trial court asked counsel if his argument was “by way of a motion to exclude the prosecution DNA exhibits as irrelevant and by way of an 1118.1 which is there is insufficient evidence before the court at this time to allow the case to proceed, ” and counsel stated that it was. (Italics added.) After hearing argument from the prosecutor and defense counsel, the trial court discussed the evidence against defendant. The trial court concluded, “[s]o with that, there is still a question of fact. It’s not enough to cake [sic] take the case away. It’s not enough to stop the adjudication of the testimony. You are intending to proffer a defense that a random person other than defendant was the contributor. But at the present time that is what I have before me. At the present time that is the state of the evidence. There is a statistical possibility that 1 in 280, 000 that a random person other than the defendant contributed to the sperm sample.”
The trial court stated that if the victim’s testimony were believed, she did not have consensual sexual relations with the defendant, and if the statistical relationship were correct, there was a 1 in 280, 000 chance that a person other than the defendant was one of the contributors of the sperm sample. Therefore, a reasonable inference might be that his DNA in the sperm sample can only be explained by his being the perpetrator. The trial court stated the perpetrator could still have been a random stranger and it was accepting that within the statistical likelihood. As to whether there was consensual sex the trial court stated that was “unadjudicated completely.” When counsel replied that the defendant had merely stated that, if he had sex with someone, it was consensual, the trial court replied, “That is not the kind of evidence that says there is nothing I could use that he is in fact liable for this crime. And for that reason the 1118.1, which is the standard, is denied. It’s not the case is over. It’s not that you might not be able to convince me that the People have not proved their case beyond a reasonable doubt. The question is whether or not there is sufficient evidence to go forward with the defense, and I find there is.”
D. Harmless Error
The portions quoted above indicate that the trial court clearly employed an incorrect standard in ruling on the defense motion. We conclude, however, that the error was harmless.
Defendant’s claim that the trial court’s error constituted “Cage” error and therefore structural error is without merit. (Cage v. Louisiana (1990) 498 U.S. 39 (Cage).) In that case the United States Supreme Court examined Louisiana’s standard instruction on reasonable doubt and ruled it was unconstitutional because it allowed a finding of guilt based on a degree of proof below that required by the due process clause of the Fourteenth Amendment. (Cage, supra, at p. 42, disapproved on another point in Estelle v. McGuire (1991) 502 U.S. 62, 72, fn. 4; see also In re Winship (1970) 397 U.S. 358, 364.) Following the decision in Cage, in Sullivan v. Louisiana (1993) 508 U.S. 275 (Sullivan), the court held that Cage error—the failure to deliver an instruction to the jury as to the requisite standard of proof of beyond a reasonable doubt—constitutes structural error requiring a reversal. Sullivan stated that where “the instructional error consists of a misdescription of the burden of proof, [this] vitiates all the jury’s findings, ” and there can be no verdict of guilt beyond a reasonable doubt. (Sullivan, supra, at p. 281, italics omitted.)
In this case, there was no jury, and the trial court was not pronouncing final judgment, but merely deciding a motion for acquittal at the close of the prosecution’s case. Had there been no evidence connecting defendant to the crime, the motion would have been justifiably granted. Given the trial court’s description of the evidence, it is clear that it was not prepared at that point in the trial to declare defendant not guilty. At the same time, the trial court properly allowed defendant an opportunity to convince the trial court that the prosecution had not proved its case.
In Johnson v. United States (1997) 520 U.S. 461, 468-469, the United States Supreme Court stated, “A ‘structural’ error, we explained in Arizona v. Fulminante [(1991) 499 U.S. 279, 310 (Fulminante)], is a ‘defect affecting the framework within which the trial proceeds, rather than simply an error in the trial process itself, ’ [citation]. We have found structural errors only in a very limited class of cases: See Gideon v. Wainwright, 372 U.S. 335 (1963) (a total deprivation of the right to counsel); Tumey v. Ohio, 273 U.S. 510 (1927) (lack of an impartial trial judge); Vasquez v. Hillery, 474 U.S. 254 (1986) (unlawful exclusion of grand jurors of defendant’s race); McKaskle v. Wiggins, 465 U.S. 168 (1984) (the right to self-representation at trial); Waller v. Georgia, 467 U.S. 39 (1984) (the right to a public trial); Sullivan[, supra], 508 U.S. 275 . . . (erroneous reasonable-doubt instruction to jury).”
In describing “trial error” that is subject to Chapman v. California (1967) 386 U.S. 18, 24 analysis, Fulminante stated that the common thread connecting cases of trial error is that the error may be quantitatively assessed in the context of other evidence presented in order to determine whether its admission was harmless beyond a reasonable doubt. “‘In applying harmless-error analysis to these many different constitutional violations, the Court has been faithful to the belief that the harmless-error doctrine is essential to preserve the ‘principle that the central purpose of a criminal trial is to decide the factual question of the defendant’s guilt or innocence, and promotes public respect for the criminal process by focusing on the underlying fairness of the trial rather than on the virtually inevitable presence of immaterial error.’” (Fulminante, supra, 499 U.S. at pp. 307-308; see also Sullivan, supra, 508 U.S. at p. 281.) The United States Supreme Court has held that there is a strong presumption that any error falls within the harmless error category. (Neder v. United States (1999) 527 U.S. 1, 8; United States v. Gaudin (1995) 515 U.S. 506, 526.)
The trial court stated in ruling on the motion that a reasonable inference could be drawn that defendant’s DNA in the sperm sample could only be explained by the fact of his being the perpetrator. The trial court also found that defendant’s statement could be used as an indicator of consciousness of guilt. The trial court’s statement to defense counsel that he might be able to convince the trial court “that the People have not proved their case beyond a reasonable doubt” is a clear indication that the trial court was not so convinced at the time the motion was made. After the trial court found defendant guilty on all counts and found true all allegations, defense counsel filed a new trial motion. Counsel argued that the trial court should have excluded the DNA evidence on the ground that the interpretation of mixtures using STR-based tests is unreliable and not admissible under the theory of simple legal relevance. At the hearing on the motion, the trial court stated that many of the concerns that originated in the mixture analysis were obviated by the convincing testimony provided by the DOJ in rebuttal. The trial court stated that the “requisite preliminary foundational facts for defendant’s own profile were proved beyond a reasonable doubt and corroborated by the defendant’s own admissions in this case. To the extent there is a question of consent, there is no evidence adduced to demonstrate that there was consent. I think the evidence both scientific and nonscientific in this case was overwhelming, and that it established beyond a reasonable doubt that defendant in fact committed these crimes and committed the facts necessary to support all of the findings regarding the special allegations in this case.”
As stated in People v. Norwood (1972) 26 Cal.App.3d 148, 159, “‘When there is no admissible evidence to connect defendant with the crime charged, the court is under legal compulsion to grant a motion for acquittal (People v. Clark [1965] 62 Cal.2d 870, 881 []). There is no such compulsion where the evidence presented by the People is sufficient to sustain a conviction, when it is presumed that any permissible inference pointing toward guilt was made by the court and that every question of fact was resolved in favor of guilt.’” In this case there was ample admissible evidence to connect defendant with the crime charged, and the trial court was under no compulsion to grant defendant’s motion. Although the trial court in this case stated it had not resolved every question of fact, the trial court’s statement clearly indicate it was not persuaded beyond a reasonable doubt that defendant was entitled to a verdict of “not guilty.” The trial court’s comments show that it believed the prosecution had established a prima facie case (see People v. Belton, supra, 23 Cal.3d at p. 520) and there is no indication that the trial court entertained a reasonable doubt that defendant’s guilt had not been shown. Because the trial court ultimately resolved the factual issues it held in reserve and made all permissible inferences pointing toward guilt beyond a reasonable doubt, defendant was not prejudiced by the application of the wrong standard at the close of the prosecution’s case.
Accordingly, defendant was not denied a verdict of guilty beyond a reasonable doubt and there was no Cage error. There was no error that was structural, since the underlying fairness of the trial was not affected by the trial court’s use of the wrong standard in deciding the section 1118 motion. It is therefore a “trial error” that is subject to harmless error analysis under the Chapman standard. Employing that standard, we find the error was harmless beyond a reasonable doubt.
III. Introduction of DOJ Evidence Regarding DNA Analysis as Rebuttal
A. Argument
Defendant claims his rights to due process of law and to a fair trial were violated when the trial court abused its discretion and allowed the prosecutor to introduce Myers’s testimony as rebuttal evidence. He asserts that the introduction of the evidence also violated section 1093, thereby impairing his Fourteenth Amendment liberty interest as described in Hicks v. Oklahoma (1980) 447 U.S. 343, 346.
Section 1093 prescribes the order of trial procedure.
Defendant argues that this evidence regarding the DOJ cold-hit analysis should have, and could have, been presented in the prosecution’s case-in-chief. The evidence was beyond the scope of rebuttal, since it did not address the Cellmark analysis. In fact, it represented an abandonment of the Cellmark findings and its mixed-DNA profile and of the statistical result reached by Cellmark, which was far more favorable to the defense. According to defendant, he relied to his detriment and prejudice on the Cellmark analysis. The new evidence surprised the defense and prejudiced its presentation before the trial court, which, as trier of fact, ignored the Cellmark evidence and convicted defendant based upon the DOJ analysis of the DNA evidence.
Defendant also contends that the prosecutor was guilty of misconduct by withholding the DOJ evidence until the defense had committed to defending against the Cellmark data.
B. Relevant Authority
“The admission of evidence in rebuttal is a matter left to the sound discretion of the trial court.” (People v. Hart (1999) 20 Cal.4th 546, 653.) The determination whether one party’s introduction of evidence “‘opened the door’” to rebuttal evidence is reviewed for an abuse of discretion and will not be disturbed on appeal in the absence of “‘palpable abuse.’” (Ibid.)
“If evidence is directly probative of the crimes charged and can be introduced at the time of the case in chief, it should be. [Citations.] [¶] The purpose of this restriction ‘is to assure an orderly presentation of evidence so that the trier of fact will not be confused; to prevent a party from unduly magnifying certain evidence by dramatically introducing it late in the trial; and to avoid any unfair surprise that may result when a party who thinks he has met his opponent’s case is suddenly confronted at the end of trial with an additional piece of crucial evidence. Thus proper rebuttal evidence does not include a material part of the case in the prosecution’s possession that tends to establish the defendant’s commission of the crime. It is restricted to evidence made necessary by the defendant’s case in the sense that he has introduced new evidence or made assertions that were not implicit in his denial of guilt.’ [Citations.]” (People v. Thompson (1980) 27 Cal.3d 303, 330; see also People v. Mayfield (1997) 14 Cal.4th 668, 761.)
All that a defendant’s denial of guilt necessarily implies is a denial of the elements of the offense alleged in the accusatory pleading. (§ 1019.) It is only these facts establishing the elements of the offense that must be put into the prosecutor’s case-in-chief and not unfairly arrive in rebuttal at the end of trial as “crucial evidence” of “a material part of the case.” (People v. Carter (1957) 48 Cal.2d 737, 753.) In addition, as stated in People v. Mendibles (1988) 199 Cal.App.3d 1277, 1302, “[r]ebuttal testimony . . . may be proper when it is offered as impeachment to meet evidence on a point put in dispute, i.e., specific statements of fact to which the defense has testified.”
C. Proceedings Below
The record shows that the prosecutor did not initially intend to call a rebuttal witness. Just prior to resting her case, the prosecutor objected to a host of documents that were provided to her on that day. When asked by the trial court, the prosecutor stated that she was alleging that a discovery violation had occurred. The trial court heard the prosecutor’s “motion” on the following day. The prosecutor stated that defense counsel gave her the documents and told her they would be used to bolster a contention by the defense expert that the victim and the defendant are related to each other. The prosecutor stated she could not prepare to rebut or investigate the documents, although her objection on late discovery grounds was tempered by the fact that she could ask for a continuance. She therefore would not ask the trial court to impose any other sanctions. Although the prosecution had been aware that an alleged familial relationship between the victim and defendant might be part of the defense, she had not been apprised of the existence of the documents, and she had therefore believed her questions to the victim and her uncle on the subject of the alleged relationship would be sufficient. Also, another document consisted of a manual by means of which the defense expert was planning to show there were certain procedures that were or were not followed and that altered the final analysis of the DNA. The prosecutor stated that the only information she had previously received regarding the expert’s opinion on the collection and processing of the evidence was that the procedure appeared to be routine and standard.
After going through all the proffered defense exhibits, the trial court asked the prosecutor if she would need more time, since it was clear that the defense was going to challenge the techniques used and claim there was a need for retesting or reamplification. The prosecutor believed that cross-examination of Dr. Sowers and a possible recall of Brockhohn in rebuttal were all that was necessary. Also, she did not believe she would need a population geneticist because she believed she could either find Dr. Sowers not qualified or be able to undermine his opinions through cross-examination. The trial court, however, advised the prosecutor that she might need the assistance of an expert. The trial court stated that, giving the defense the benefit of the doubt, Dr. Sowers’s testimony might be effective and might cast grave doubts on the evidence, since it was a statistical DNA case. The trial court advised a continuance for the prosecutor to find an expert at that point rather than to wait. The prosecutor agreed with the trial court and asked for a continuance to investigate the possibility of obtaining an expert. At a subsequent hearing, the trial court found a willful intention by the defense not to disclose something that the defense was obliged to disclose, and it granted a continuance to the People as a sanction. The People replied that they were indeed seeking a continuance to obtain the services of Myers. The prosecutor stated that a written report was imminent.
After granting the continuance, the trial court heard the defense section 1118 motion, discussed ante. This was followed by the testimony of Dr. Sowers as related in the facts portion of this opinion.
After the defense rested, the prosecution called Myers as a rebuttal witness. Myers testified about his credentials, including his knowledge of kinship analysis, the functions of the DOJ lab, and the employment record of Fleming. The People introduced exhibit 23, an 89-page document containing the original report by Fleming, the documents relating to the evidence transmittal to and from the laboratory, and the technical review and bench notes of Fleming relative to the instant case. Myers then explained the procedures that are taken with evidence from receipt by mail or overnight service, DNA extraction, and quantitation, amplification, and processing to acquire the electropherograms, which display peaks that are converted into information about alleles. He explained that the data is then interpreted and a report is written. In a suspectless case, he said, a profile for an unknown person is created and searched against a database. At that point, defense counsel posed an objection to the trial court. The following exchange occurred: “Mr. Mizrahi [defense counsel]: Several objections. Number one, all this with respect to 89 pages has to do with the case in chief, not in rebuttal. The Court: I see a whole lot of rebuttal in this. Mr. Mizrahi: I don’t see any rebuttal in that. The Court: I do. Mr. Mizrahi: I see that as the People’s case in chief. The Court: I see this as directly controverting some of the conclusions reached by your expert.”
The trial court later said: “I believe it’s properly within the scope of rebuttal. I assume when he starts opining it will be with a number of different objections about the conclusions contrary to those testified to by the expert for the defense, and I am going to let him keep testifying about it, so the objections are heard but overruled.”
D. Testimony Was Proper Rebuttal
We find no palpable abuse of discretion or denial of due process in permitting the rebuttal evidence of Steven Myers’s testimony, which rebutted Dr. Sowers’s testimony in many ways. The beginning of Myers’s testimony was clearly foundational and began with a step-by-step description of the actions taken by Fleming on receipt of evidence in the instant case. Myers explained that Fleming was able to generate a single-source male profile from the sperm fraction obtained from the vaginal swab. This profile was run against the convicted felon database. Myers testified that Fleming’s notes reflected that she took the appropriate quality control measures and that there was no contamination. Myers added that, using the profile Fleming generated, he calculated the chance that a randomly selected person would have the profile as 1 in 290 trillion.
Myers had reviewed Dr. Sowers’s documentation and had listened to his testimony. In contrast to Dr. Sowers, Myers asserted that there were theories widely accepted within the forensic community that allowed for making a meaningful analysis if there is a mixture in a piece of physical evidence. These included peak height ratio studies, abundant mixture studies, and standard assumptions about people’s genetics. This was in contrast to Dr. Sowers’s testimony that the scientific community is unsure how to deal with mixtures. Myers stated that the mixture calculation of 1 in 280, 000 chance determined by Brockhohn was still a valid one. Myers disputed Dr. Sowers’s statement that more than six billion possible genotypes could be obtained from the DNA in this case. Myers stated that the figure was 660 quintillion, but that it was a meaningless figure.
Myers testified that the calculation methodology suggested by Dr. Sowers as an alternative to that used by Cellmark was not generally an approach taken by the forensic science community. The method ignores abundant data that could be used, and Myers had only known the method to be suggested by Dr. Sowers and one other scientist who regularly testifies for the defense.
Myers disagreed with Dr. Sowers’s statement that the Cellmark’s work on the COfiler versus the Profiler Plus analysis at the D3 locus yielded a scientifically inconsistent result and that a retesting of the data was required. Myers explained how this difference could legitimately occur and how it could be misinterpreted if one looked only at a table of results. Myers stated he disagreed with Dr. Sowers’s interpretation of the slot-blot test and believed Dr. Sowers misunderstood how the test is actually run.
Myers also disagreed with Dr. Sowers’s assertion that the presence of evidence in reference samples in a single envelope risked cross-contamination to the degree that the ultimate results would be potentially unreliable. Myers was of the opinion that the evidence in the instant case was sent in a manner consistent with standard practices. He disputed Dr. Sowers’s assertion that cross-contamination occurred by a criminalist opening vials and leaving them open on the rack. Myers stated that Dr. Sowers’s suggested practices would not be appropriate in the DOJ laboratory. Myers also noted that the contamination that Dr. Sowers claimed had occurred would be detected by mechanisms in place in accredited labs, and Myers explained these mechanisms.
Myers disputed Dr. Sowers’s assertion that operator bias could result from the transmission of a reference sample from a male with an evidence sample from a rape kit. Myers said that operator bias is controlled through training and the review process.
Myers also refuted Dr. Sowers’s testimony regarding a possible familial relationship between Rosa and defendant and explained at length how his own tests and calculations of the data from the instant case led to the conclusion that there was no meaningful support for a hypothesis of relatedness or unrelatedness. Myers disagreed with Dr. Sowers’s calculation that the probability of two unrelated individuals sharing the alleles that the victim and defendant shared was 1 in 10 million. Myers found the calculation incorrect and stated it did not support Dr. Sowers’s testimony, and furthermore, the proposition was taken out of context. One must compare the chance of two people being unrelated with the probability that the amount of sharing would have happened in related people. Myers explained at length a calculation he undertook for testimony in this case that showed that there was not a strong indicator of kinship at the level of first cousins in this case. Myers also explained the result of factoring in a possible familial relationship in his probability calculation of 1 in 290 trillion. He concluded that factoring in the possibility that the donor of the profile was a first cousin of the victim reduced the probability to 1 in 180 trillion. That is, there was a 1 in 180 trillion chance that an untyped first cousin of the victim would have this profile. According to Myers, if someone who was a first cousin matched that profile, this would be very strong evidence that this person was the donor of the semen. Myers performed an analysis to determine the validity of Dr. Sowers’s testimony that siblings would be expected to share both alleles at five of the 132 loci and unrelated individuals would be expected to share both alleles at zero or one locus. The result of his analysis showed that once a relatedness level of first cousins is reached, the genotypes are relatively indistinguishable from those of people totally unrelated to one another.
It is true that Myers said the sperm fraction in this case was not considered a mixture by the DOJ, although there were some results that were under the DOJ threshold and inconclusive. This finding contrasts with the mixture finding by Brockhohn, the expert in the case-in-chief. Although the eventual implication of not finding a mixture is more conclusive of guilt, the DOJ findings in the DNA that led to its being sent to Cellmark as a cold hit were properly introduced as part of the foundation of Myers’s rebuttal testimony. Myers explained that Fleming characterized some data as artifacts based on the DOJ laboratory guidelines. The trial court was able to put the DOJ results in perspective by exploring with Myers whether there were an objective means of separating stutters and artifacts from true allele calls.
We believe the record clearly shows that Myers’s testimony served as rebuttal to that of Dr. Sowers. The discussion of Fleming’s analysis served as part of the foundation to the rest of the testimony and also served to show the inadequacies of Dr. Sowers’s calculations. Clearly the prosecution did not commit misconduct by holding back evidence, since its search for a rebuttal expert occurred only after prodding by trial court. Myer’s testimony was also not beyond the scope of rebuttal, since he repeatedly referred to the Cellmark findings while rebutting Dr. Sowers’s assertions.
In any event, any error in admitting the testimony on rebuttal would be harmless because it is not reasonably probable defendant would have received a more favorable verdict had the evidence been excluded. (People v. Daniels (1991) 52 Cal.3d 815, 860 [improper admission of evidence on rebuttal does not merit reversal when “it [is not] reasonably probable that absent the testimony . . . the jury would have reached a verdict more favorable to defendant”]; People v. Jordan (2003) 108 Cal.App.4th 349, 366 [admission of rebuttal evidence, even if error, not prejudicial because “there is no reasonable probability of a more favorable result”].) The trial court ultimately decided that Dr. Sowers’s testimony was effectively rebutted. That finding combined with defendant’s statement show that, even if the single-source information had not been heard by the trial court, the mixture statistic of 1 in 280, 000 and the other testimonial evidence would have been sufficient for this trier of fact to find guilt.
IV. Sentencing Pursuant to Section 209, Subdivision (b)(1)
Defendant points out that the kidnapping to commit rape occurred on December 13, 1996. The trial court sentenced him to a stayed life sentence for this crime pursuant to section 209, subdivision (b)(1) and section 654. The current version of section 209, subdivision (b)(1), however, was not in existence in 1996. In accordance with ex post facto principles, defendant could not be convicted and sentenced under a statute that did not exist when the crime was committed. Defendant asserts that he could properly have been convicted and sentenced only under the 1996 version of former section 208, subdivision (d), which described the kidnapping for rape conduct. The 1996 version of the latter statute provided for a determinate term of five, eight, or 11 years. Therefore, the matter must be remanded for imposition of a 654-stayed determinate sentence and for correction of the abstract of judgment. Respondent agrees with defendant’s argument.
The California Supreme Court stated in People v. McVickers (1992) 4 Cal.4th 81 that the United States Supreme Court has provided a restructured framework for analyzing legislation under the ex post facto clause. (Id. at p. 84.) The clause prohibits legislation “‘“[1] which punishes as a crime an act previously committed, which was innocent when done; [2] which makes more burdensome the punishment for a crime, after its commission, or [3] which deprives one charged with crime of any defense available according to law at the time when the act was committed . . . .”’” (Ibid.; citing Collins v. Youngblood (1990) 497 U.S. 37.)
We agree with defendant and respondent that in December 1996 the crime of kidnapping for rape was codified under former section 208, subdivision (d), and the crime was punishable by imprisonment in the state prison for five, eight, or 11 years. (Stats. 1992, ch. 163, § 101, repealed by Stats. 1997, ch. 817, § 1, p. 2.) It was not until 1997 that section 209, subdivision (b) was amended and renumbered to include the subject crime and to prescribe a life sentence. (§ 209, subd. (b), amended by Stats. 1997, ch. 817, § 2, p. 3.)
Because the sentence imposed in this case was unauthorized, we remand the matter to the trial court for resentencing.
V. Sentencing Pursuant to Section 12022.3
Defendant contends that the trial court imposed an unauthorized sentence on the count 2 firearm-use enhancement pursuant to section 12022.3. The trial court stated it was imposing the midterm, and it imposed a sentence of five years. In 1996, however, when the crime was committed, the midterm sentence for this enhancement was four years. (Stats. 1993-1994, 1st Ex. Sess., ch. 33, § 5.) In fact, the midterm sentence for an enhancement pursuant to section 12022.3 continues to be four years. (§ 12022.3, subd. (a).) Respondent agrees with defendant.
Based on the clear disparity between the intended sentence of four years and the sentence of five years that was imposed contrary to the statute, we will remand the matter to the trial court for resentencing on count 2.
VI. Error in Abstract of Judgment
Defendant contends that the abstract of judgment contains clerical error in that it reflects the imposition and stay of a firearm-use allegation under section 12022.53. Defendant points out that the trial court did not impose or stay such an allegation. Although the allegation was improperly referenced in the charging information, it was never charged separately as a firearm enhancement. Indeed, section 12022.53 was not enacted until two years after the instant offenses. (Stats. 1997, ch. 503, § 3.) Therefore, the reference to this statute in the abstract of judgment should be stricken.
The reference to section 12022.53 was clearly a clerical error. “The distinction between clerical error and judicial error is ‘whether the error was made in rendering the judgment, or in recording the judgment rendered.’” (In re Candelario (1970) 3 Cal.3d 702, 705.) The California Supreme Court has recently held that appellate courts may order correction of clerical errors in abstracts of judgment (People v. Mitchell (2001) 26 Cal.4th 181, 188), and we accordingly order the required corrections in this case.
DISPOSITION
The matter is remanded for resentencing in counts 1 and 2 in accordance with this opinion. In all other respects the judgment is affirmed. The superior court is ordered to correct the abstract of judgment to reflect the resentencing in counts 1 and 2 and to correct the clerical error consisting of the mention of a stayed term under section 12022.53. The superior court is ordered to forward an amended abstract of judgment to the Department of Corrections and Rehabilitation.
We concur: BOREN, P. J., CHAVEZ, J.