Opinion
B304185
04-07-2022
THE PEOPLE, Plaintiff and Respondent, v. KENNETH MATTHEWS, Defendant and Appellant.
Mary K. McComb, State Public Defender, Laura S. Kelly, Deputy State Public Defender, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Scott A. Taryle and Chung L. Mar, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. BA467480, Douglas W. Sortino, Judge. Affirmed.
Mary K. McComb, State Public Defender, Laura S. Kelly, Deputy State Public Defender, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Scott A. Taryle and Chung L. Mar, Deputy Attorneys General, for Plaintiff and Respondent.
CURREY, J.
INTRODUCTION
A jury convicted defendant and appellant Kenneth Matthews of first degree murder. It also found true the allegation that he committed the murder while engaged in the commission of attempted rape. The trial court sentenced him to life in prison. Matthews raises nine arguments on appeal. For the reasons discussed below, we reject his arguments and affirm the judgment.
PROCEDURAL BACKGROUND
On December 20, 2019, a jury found Matthews guilty of first degree murder (Pen. Code, § 187, subd. (a)) and found true the special circumstance allegation that he committed the murder while engaged in the commission of attempted rape (§ 190.2, former subd. (b)(3)). The jury found rape, robbery, and attempted robbery special circumstances not true. (§ 190.2, former subd. (b)(3).) The trial court sentenced him to life in prison. Matthews timely appealed. On the evening of December 6, 1977, Ravonne and Antwun were sleeping in the bedroom when they were awakened by an argument between Leona and a man. Ravonne saw a man attempting to have sex with Leona; the man and Leona were both on their knees, and the man was behind Leona. The man told Ravonne to turn around and not look, and Ravonne placed a scarf over his own head at the man's direction. Ravonne later heard a loud thump that sounded like something hitting the ground. When Ravonne removed the scarf, he saw Leona lying motionless on the ground. Blood was everywhere.
All undesignated statutory references are to the Penal Code.
That evening, Cynthia McGrew was inside the adjoining duplex apartment when she heard Leona and her sons screaming from their apartment. McGrew also heard a man demanding money and Leona responding that the money was in a cookie jar. Leona also said, "Don't hurt me, but you can [expletive] me." McGrew called Eric (who lived in the front house on the lot) to come get her, and she left her apartment with Eric. When McGrew left her apartment with Eric, she saw Matthews, who she identified at trial, standing on the doorway landing to Leona's apartment. Matthews asked McGrew for a ride, and she declined his request. McGrew then got in her car and left the scene.
Officers from the Los Angeles Police Department (LAPD) responded to Leona's apartment after midnight. The apartment had been ransacked and there were numerous bloodstains on the bedroom walls, including blood smears near a light switch. The mattress had a large amount of blood on it. The victim had a neck wound and was lying face-down in the bedroom, with her body underneath dresser drawers and clothing. The victim was mostly nude (except for a night dress pulled over her shoulders) and her legs were spread apart. Latent fingerprints were collected at the scene, and fingerprints left in apparent blood on or near a light switch in the bedroom were photographed.
The autopsy determined that the victim died as a result of a stab wound to the neck, with a perforating injury to the jugular vein that caused bleeding. The victim also had blunt force injuries to the left cheek. An examination and testing of biological samples obtained from the victim's vagina and anus detected the presence of sperm in those samples.
i. Matthews's Fingerprints Matched Three Latent Fingerprints at the Scene, Including Two Bloody Fingerprints
In September 2014, the Automated Fingerprint Identification System (AFIS) database generated an alert about possible matches to latent fingerprints recovered from the scene. In October 2014, LAPD forensic print specialist Jose Lainez compared a latent print recovered from the east bedroom wall with an exemplar of Matthews's fingerprints, and Lainez concluded the latent print matched Matthews's right palm. Lainez also compared a bloody fingerprint (as shown in a photograph) on a bedroom light switch to Matthews's fingerprints, and he concluded the latent print matched Matthews's left middle finger.
During trial, Lainez performed a preliminary comparison analysis of two other bloody fingerprints that were photographed in the bedroom, and he initially concluded Matthews was excluded as the source of both prints. After Lainez conducted a more comprehensive analysis of these two bloody prints, he concluded that one bloody print matched Matthews's left thumb, and the other bloody print did not contain any value for a fingerprint comparison. LAPD forensic print specialist Jesus Baez also performed an analysis of these two additional bloody prints, and he verified that one print matched Matthews and the other print had insufficient information for a fingerprint comparison.
ii. Matthews's DNA Matched the DNA Profile Recovered from the Victim's Body
In 2011, forensic DNA analyst Sarah Shields conducted DNA analysis on slides of biological samples obtained from the victim's vagina and anus, and forensic DNA analyst Catherine Roller reviewed the DNA analysis and results. No DNA profile was obtained from the sperm fraction on the vaginal slide. On the anal slide, a partial DNA profile from the sperm fraction was consistent with a mixture of two individuals, including one male contributor and DNA consistent with the victim.
In 2017, Roller compared the DNA profile from the sperm fraction of the anal slide with Matthews's DNA profile, and she concluded that the "male component DNA profile deduced from the sperm fraction of the anal slide matched the DNA profile" of Matthews. The probability of randomly selecting an unrelated individual with this partial DNA profile was one in 10 million in the African American population, one in 17 million in the Hispanic population, and one in 38 million in the Caucasian population.
iii. Additional Evidence
In 2014, LAPD Detective Shands McCoy was assigned to the victim's "cold case." In the original case file, Detective McCoy found a personal phone book with bloodstains on it; the phone book had been initially recovered on a dresser at the victim's apartment. Inside the phone book, Detective McCoy found a small piece of paper that stated: "Kenneth's sister 779-7044." Betsy Sparks, Matthews's sister, testified at trial that the phone number listed in the phone book was her phone number in 1977.
On February 9, 2016, Detective McCoy spoke to Matthews at his residence, and a redacted audio recording of the conversation was played to the jury. Detective McCoy explained that he was investigating the 1977 homicide of Leona D. and showed two autopsy photographs of Leona to Matthews. Matthews replied that he "definitely wouldn't know her." When Detective McCoy asked Matthews to explain why his fingerprints were found at the victim's house, Matthews repeatedly stated that he had "never seen her before" and did not "know what [the detective] was talking about." Detective McCoy later showed Matthews a photograph of the victim's residence, and Matthews stated that he had never been to that location.
In February 2018, Detective McCoy showed McGrew a six-pack photographic lineup that included Matthews in position number 4. McGrew indicated that the person in photograph "'number 4 looks most like the person that was in Leona's house on the night she was killed.'" At trial, she identified Matthews as the individual who had been in the victim's house.
In a written statement McGrew provided in 1977, she never indicated she had seen a man on the night of the murder. As discussed below, after providing the statement, McGrew was hypnotized by someone from the police department. The hypnosis session was taped, but at the time of trial, police could not locate the tape. When McCoy contacted McGrew in 2016, she told him she recalled the incident but did not go outside that night and did not see the suspect. At trial, McGrew denied having told McCoy that in 2016.
A. Defense Evidence
Matthews did not present any evidence in his defense.
DISCUSSION
I. The Trial Court Properly Excluded the Proffered Evidence of Third-Party Culpability Because the Evidence Failed to Link the Third Party to the Actual Commission of the Murder
Relying on Holmes v. South Carolina (2006) 547 U.S. 319, Matthews contends the trial court violated his federal constitutional rights by excluding the admission of third-party culpability evidence involving Harold Wimbley. Matthews specifically argues the trial court erred by relying on the strength of the prosecution case rather than independently assessing the relevance and probative value of the third-party culpability evidence. For reasons discussed in greater detail below, we disagree. The trial court properly assessed the relevance and probative value of the evidence involving Wimbley and did not err by excluding it. Even assuming the court had erred, the purported error was harmless.
Because we reach this conclusion, we need not address Matthews's argument that the trial court's alternative ruling (i.e., that Wimbley's statements were inadmissible hearsay) violated federal constitutional and state law.
A. Relevant Proceedings
Before trial, the prosecution filed a written motion to exclude proposed testimony from defense witness Harold Wimbley that (1) he went to the victim's apartment on the evening of the murder and paid for sex with the victim; and (2) his fingerprint was found on a bathroom wall in the victim's apartment. The prosecution argued the evidence was inadmissible on two grounds: (1) the rape shield laws prohibited admission of the victim's other sexual conduct to prove consent; and (2) the proffered evidence failed to meet the foundational requirements for the admissibility of third-party culpability evidence because the evidence only showed Wimbley's "mere presence in the company of the victim at an earlier time," and it failed to sufficiently "establish a direct or circumstantial link to the actual perpetration of the crime."
At the hearing on the prosecution's motion, the parties agreed that Wimbley told the police and a defense investigator he went to the victim's home on the day of the murder, engaged in sex with the victim and paid her for it, then left the victim's home during daylight hours. When the court asked defense counsel to explain the relevance of evidence that the victim was a prostitute, counsel asserted the evidence permitted the defense to argue that Matthews left his DNA "at a different time," thereby diminishing the probative value of "the presence of my client's supposed DNA in the anal slide." Defense counsel further indicated she was not going to argue Wimbley was the perpetrator based on the presence of Wimbley's fingerprint at the scene or his admissions to engaging in sex with the victim.
The trial court tentatively ruled the proposed testimony from Wimbley would be excluded. The court first explained that "absent independent evidence that [ ] Matthews was a client of hers at one time, or a romantic interest at one time," the "mere fact that she was allegedly a prostitute or engaged in consensual sex with someone earlier in the day" was not relevant to establish the "timing of [ ] Matthews's alleged deposit of any DNA inside of her."
The court further found the evidence was substantially more prejudicial than probative under Evidence Code section 352, explaining "[i]t would certainly demean and dirty up the victim in this case, and I don't see it as being particularly relevant to establish that [ ] Matthews'[s] DNA was deposited consensually at some other time simply because she had at least one relationship that could be considered prostitution with Mr. Wimbley, and may have been a prostitute." The court further explained that "absent independent evidence that [ ] Matthews was a client of hers at one time, or a romantic interest at one time," the evidence was not "particularly probative as to the timing of the deposit of the DNA by [ ] Matthews." The court also noted the defense could elicit through the expert witness that DNA could be deposited and remain for a long time to support the inference that the DNA "could have been deposited at some point prior to the crime."
The defense filed a motion for reconsideration on the admissibility of the evidence. Revising its theory of admissibility, the defense now asserted that the evidence was relevant on the issue of third-party culpability, and that Wimbley's statements to the police in 2017 and his statements to the defense investigator in 2019 were admissible as declarations against interest. After hearing additional argument by the parties, the trial court took the matter under submission.
At the next court hearing, the trial court addressed the issue of third-party culpability and explained that it did not "see evidence that ties [Wimbley] to the commission of the crime." Re-raising the original defense theory of admissibility, defense counsel asserted that if the victim was "a prostitute, the DNA doesn't necessarily mean that [ ] Matthews is the killer."
In response, the trial court explained the evidence the victim was a prostitute would be admissible to show Matthews "could have deposited the DNA at another time prior to the murder" if the defense presented independent evidence that Matthews "had a relationship with her" or had "some kind of sexual contact with her significantly prior to the murder, that didn't involve the murder . . . ." The court noted that absent such independent evidence, it would not "let this victim be dragged through the mud as a prostitute, because there has to be some independent evidence to justify that, if I'm going to allow that highly prejudicial and non-probative evidence in in any way, unless there's an independent basis to establish that [ ] Matthews had a relationship with her." The court reiterated it would not allow the defense to "characterize [the victim] as a prostitute, and then argue to the jury, well, she's a prostitute, so maybe [Matthews] had sex with her that way, when there's no evidence that he did, and expressed its view that absent independent evidence of a relationship between the victim and Matthews, the evidence was "essentially slut-shaming the victim."
The trial court also excluded the proffered evidence under the theory of third-party culpability. The court first excluded the evidence that Wimbley's fingerprint was found at the scene because the "print, alone, is not evidence of his involvement in the murder," especially since there was no evidence from the print itself as to when it was left at the scene. The court further explained the analysis would be different if the print had been left in blood because such evidence "would tie the print to the actual killing, as opposed to being someone who was in the house at some point prior to the killing."
The court also excluded the admission of Wimbley's statements to the police and the defense investigator. The court ruled that Wimbley's prior statements were not admissible as declarations against penal interest because the defense had failed to establish unavailability, noting the defense had failed to exercise due diligence in securing Wimbley's attendance in court. The court also found Wimbley's statements did not qualify as declarations against penal interest because he only admitted that he had sex with a prostitute and was present at her home prior to the murder, he made the statements well after the statute of limitations had expired for any prostitution offenses, and he expressly or impliedly denied any involvement in the murder.
The court lastly ruled that even if Wimbley were available to provide live testimony, his testimony would be excluded because it was not admissible as third-party culpability evidence. The court noted the applicable standard was whether the proffered evidence "would raise a reasonable doubt about the defendant's guilt," that there "must be direct or circumstantial evidence linking the third party to the actual commission of the crime," and that the analysis required the court to "consider the proffered evidence in the context of the evidence that the People are presenting."
Applying this standard, the court explained the proffered evidence was inadmissible as third-party culpability evidence because, at most, it only tied Wimbley to the victim and the scene at some point prior to the murder, but did "not tie him to the actual perpetration or commission of the crime, itself." The court noted the evidentiary showing might be different if "his print had been left in blood," but the proffered evidence only showed the print was left on the bathroom wall and Wimbley "had an innocent explanation for why it would be there." The court also explained the proffered evidence was "not a situation where [Wimbley] has confessed to this murder, or confessed to someone else about this murder, or has knowledge of the details of the murder that only the killer would know, or that there is other evidence that ties him to the actual crime." The court further found the evidence was inadmissible under Evidence Code section 352 because the "minor or no relevance in terms of probative value" was outweighed by the potential prejudice.
During trial, the prosecution informed the court and the defense that fingerprint examiner Lainez had preliminarily excluded Matthews as the source of two other bloody fingerprints from the scene. Defense counsel then requested reconsideration of the court's exclusion of the third-party culpability evidence. In response, the trial court noted the defense would be unable to present Wimbley's trial testimony within a reasonable amount of time, and the defense had failed to establish unavailability to present Wimbley's prior statements as declarations against interest. The court also explained that if the fingerprint analysis matched Wimbley to one of the bloody fingerprints, such evidence would qualify as third-party culpability evidence. The court reiterated that the evidence Leona was a prostitute was irrelevant, whereas the evidence that two bloody fingerprints did not match Matthews was relevant.
The next day, the prosecutor informed the court and the defense that the mid-trial fingerprint analysis ultimately showed Matthews matched one of the two newly examined bloody prints and the other print was not suitable for comparison. In light of these fingerprint findings, the court explained that "this recent change in the evidence effectively excludes Mr. Wimbley, and makes it even less probative on the issue of third party culpability - his presence at the scene at some point during the day of the homicide."
B. Relevant Law
"'"[T]o be admissible, evidence of the culpability of a third party offered by a defendant to demonstrate that a reasonable doubt exists concerning his or her guilt, must link the third person either directly or circumstantially to the actual perpetration of the crime."'" (People v. Young (2019) 7 Cal.5th 905, 937 (Young).) "[E]vidence that another person had a motive or opportunity to commit the crime, without more, is irrelevant because it does not raise a reasonable doubt about a defendant's guilt; to be relevant, the evidence must link this third person to the actual commission of the crime." (People v. Clark (2016) 63 Cal.4th 522, 598 (Clark).) "'"In assessing an offer of proof relating to such evidence, the court must decide whether the evidence could raise a reasonable doubt as to defendant's guilt and whether it is substantially more prejudicial than probative under Evidence Code section 352."' [Citation.]" (Young, supra, 7 Cal.5th at p. 937.) The trial court's ruling is reviewed for abuse of discretion. (Ibid.)
C. Analysis
i. The trial court did not err in excluding the evidence
We conclude the trial court properly exercised its discretion in excluding Matthews's proffered third-party culpability evidence. As the trial court reasonably concluded, the evidence that Wimbley's fingerprint was present in the victim's bathroom, coupled with the evidence of Wimbley's statements that the victim was a prostitute and he had engaged in paid sex with the victim in her apartment on the day of the murder, was insufficient to raise a reasonable doubt regarding Matthews's guilt. This proffered evidence only showed Wimbley was present with the victim at the murder scene at some point during the day of the murder. In other words, the evidence merely showed, at most, that Wimbley had an opportunity to commit the murder. The proffered evidence also provided an innocent explanation for the presence of Wimbley's fingerprint in the victim's bathroom, i.e., he had sex with the victim in the apartment. Because the trial court reasonably concluded the proffered third-party culpability evidence failed to directly or circumstantially link Wimbley to the actual perpetration of the murder, the trial court properly exercised its discretion in excluding the evidence. (See, e.g., Clark, supra, 63 Cal.4th at p. 598 [evidence that third party visited victim's home on same day as alleged actual killer did not show anything more than opportunity]; People v. DePriest (2007) 42 Cal.4th 1, 43 [evidence that another person "had some 'remote' connection to the victim or crime scene" is not sufficient to raise the requisite reasonable doubt]; People v. Samaniego (2009) 172 Cal.App.4th 1148, 1175 [evidence inadmissible as third-party culpability evidence because it only showed motive and opportunity, and did not show the person was involved with the murder].)
Matthews argues the evidence was relevant and probative, asserting the only difference between the prosecution's case and the proffered defense evidence was that one of Matthews's fingerprints at the scene was left in blood, whereas Wimbley's fingerprint was not. But that difference was highly significant and damning to Matthews. The victim was killed by a stab wound to the jugular vein, resulting in a significant amount of blood in the bedroom. Given the bloody nature of the killing, a bloody fingerprint on a bedroom light switch was logically linked to the commission of the murder. By contrast, as explained above, the proffered third-party culpability evidence failed to connect Wimbley to the killing.
The trial court also properly exercised its discretion in excluding the evidence under Evidence Code section 352. As discussed above, the evidence had limited or no probative value on the issue of third-party culpability. By contrast, as the trial court explained, the evidence that the victim and Wimbley had engaged in an act of prostitution presented the substantial danger of demeaning the victim and prejudicing the jury. Accordingly, the trial court reasonably concluded the evidence was inadmissible under Evidence Code section 352.
Citing Holmes, supra, 547 U.S. 319, Matthews argues the trial court improperly excluded the proffered third-party evidence based on the strength of the prosecution's case, i.e., that Matthews's fingerprint was left in blood. Matthews's reliance on Holmes is misplaced.
Holmes invalidated a state law that prohibited a defendant from introducing third party culpability evidence "if the prosecution has introduced forensic evidence that, if believed, strongly supports a guilty verdict." (Holmes, supra, 547 U.S. at pp. 321, 331.) Under that state rule, the trial court focuses on the strength of the prosecution's case rather than independently reviewing the "probative value or the potential adverse effects of admitting the defense evidence of third-party guilt." (Id. at p. 329.) The Holmes court held that this rule was arbitrary and therefore unconstitutional because "by evaluating the strength of only one party's evidence, no logical conclusion can be reached regarding the strength of contrary evidence offered by the other side to rebut or cast doubt." (Id. at p. 331.) In contrast, Holmes explained that state evidentiary rules that exclude proffered third-party culpability evidence that "does not sufficiently connect the other person to the crime" - including the California rule set forth in People v. Hall (1986) 41 Cal.3d 826 - are not unconstitutional. (Holmes, supra, at p. 327 & fn. *.)
Here, the trial court applied the latter type of evidentiary rule approved by Holmes. Under California's standard for the admissibility of third-party culpability evidence, the trial court properly focused its analysis on both (a) the probative value of the proffered defense evidence to determine if it raised a reasonable doubt regarding Matthews's guilt, and (b) whether the proffered evidence was substantially more prejudicial than probative under Evidence Code section 352. As the trial court explained, the proffered third-party culpability evidence had limited probative value because it was "not a situation where [Wimbley] has confessed to this murder, or confessed to someone else about this murder, or has knowledge of the details of the murder that only the killer would know, or that there is other evidence that ties him to the actual crime." Instead, the proffered defense evidence only connected Wimbley to the victim and the scene at some point prior to the murder, but did "not tie him to the actual perpetration or commission of the crime, itself." The trial court further analyzed the prejudicial effect of the proposed defense evidence under Evidence Code section 352. Thus, the record plainly demonstrates that the trial court properly reviewed the proffered defense evidence on its own merits.
Moreover, the trial court's explanation that the evidentiary showing might be different if "[Wimbley's] print had been left in blood" did not improperly focus on the strength of the prosecution's case. Rather, these comments merely explained that the proffered defense evidence lacked probative value because the evidence failed to connect Wimbley to the crime.
In short, the trial court correctly focused on the probative value and prejudicial effect of the proffered third-party culpability evidence, and properly exercised its discretion in excluding that evidence. (Clark, supra, 63 Cal.4th at p. 597, fn. 54 [exclusion of third-party culpability evidence did not violate defendant's constitutional right to present a defense].)
As mentioned above, because we reach this conclusion, we need not address Matthews's argument that the trial court's alternative ruling (that Wimbley's statements were inadmissible hearsay) violated federal constitutional and state law.
ii. Any purported error was harmless
Even assuming the court erred, we find no prejudice under either People v. Watson (1956) 46 Cal.2d 818, 836 or Chapman v. California (1967) 386 U.S. 18, 24. Matthews's identity as the killer was established by the forensic evidence that (1) his fingerprints matched three latent fingerprints at the scene, including two prints left in blood in the victim's bedroom, and (2) his DNA matched the partial DNA profile obtained from the sperm fraction of the anal slide, with the probability of randomly selecting an unrelated individual with that partial DNA profile calculated as one in 10 million in the African American population. In addition, Matthews falsely told the detective that he did not know the victim and had never been to the victim's apartment, and the falsity of these statements was demonstrated by the forensic evidence and the notation in the victim's phonebook ("Kenneth's sister 779-7044") that correlated with the phone number for Matthews's sister at the time of the murder. By contrast, the proffered third-party culpability evidence had limited evidentiary weight because it did not directly connect Wimbley to the actual commission of the murder. We therefore conclude the exclusion of the evidence was not prejudicial.
II. The Trial Court Also Properly Excluded the Evidence Involving Wimbley on Other Theories of Admissibility
Matthews further argues that, even if the evidence involving Wimbley was not admissible as third-party culpability evidence, the evidence was relevant and admissible on other grounds. He argues the evidence that Wimbley had sex with the victim "was relevant to the question whether Matthews vaginally penetrated her" because "it raised a reasonable doubt as to whether the unidentified vaginal sperm belonged to Matthews," and this question was crucial because "only attempted vaginal penetration could support a true finding on the attempted rape special circumstance." He further argues the evidence that the victim was a prostitute "also diminished the probative value of both the sperm found in the vagina and the DNA evidence produced from the anal slide" because it "suggested an alternate explanation for the vaginal sperm, and would have undermined the prosecutor's suggestion that this sperm necessarily belonged to Matthews." He further contends the "evidence also suggested the possibility that Matthews might have had anal sex with [the victim] sometime before her death - and not in connection with her killing." Matthews never asserted in the trial court that the Wimbley evidence was admissible to show someone else was the source of the semen in the vaginal sample. Matthews therefore forfeited this aspect of his argument. (Evid. Code, § 354; People v. Pearson (2013) 56 Cal.4th 393, 470, fn. 10.)
Even assuming Matthews had not forfeited any aspect of his argument, we reject his entire claim on the merits. As the trial court explained, the evidence that the victim was a prostitute - absent any independent evidence that Matthews had prior sexual contact with the victim - did not reasonably support the inference that Matthews might have had consensual anal sex with the victim and deposited his DNA at some point prior to the murder. The trial court thus properly exercised its discretion in excluding the evidence on this proffered ground.
The proffered evidence was also inadmissible to show that someone other than Matthews was the source of the semen in the vaginal sample. The presence of semen in the vaginal sample ultimately had limited relevance and probative value on the issue of the killer's identity, the primary contested issue at trial, because the undisputed evidence showed that no DNA profile was obtained from the sperm fraction on the vaginal slide. The proffered evidence merely suggested other possible sources for the semen, and thus had limited relevance or probative value on the issue of identity.
The proffered evidence also had limited relevance and probative value related to the special circumstance allegations involving rape and attempted rape. Evidence that Wimbley had sex with the victim at some point before the murder did not logically undercut the conclusion that Matthews was engaged in the commission or attempted commission of rape during the murder. Furthermore, the suggested inference that Wimbley was a possible source of the semen in the vaginal slide had minimal probative value in disproving the special circumstance allegations because the presence of that semen was not the sole or requisite evidentiary basis for the allegations. Additional evidence supporting the allegations included: (1) the presence of Matthews's DNA in the sperm fraction of the anal sample; (2) Ravonne's testimony that the perpetrator was attempting to have sex with the victim; and (3) McGrew's testimony that she heard the victim say, "Don't hurt me, but you can [expletive] me." Thus, the proffered evidence had limited probative value under these theories of admissibility newly raised on appeal.
Furthermore, as the trial court explained, the proffered evidence that the victim was a prostitute was highly prejudicial. When balanced against the minimal probative value of the evidence, it was not an abuse of discretion to exclude it under Evidence Code section 352.
Lastly, even assuming the court had erred in excluding the evidence, any purported error was harmless under both People v. Watson, supra, 46 Cal.2d at p. 836 and Chapman v. California, supra, 386 U.S. at p. 24. For the reasons discussed above in section I.C.ii., the prosecution presented overwhelming evidence to the jury that Matthews was the killer. There was also ample evidence that Matthews committed the murder in the commission of attempted rape (i.e., the presence of Matthews's DNA in the sperm fraction of the anal sample, Ravonne's testimony that the perpetrator was attempting to have sex with the victim, and McGrew's testimony that she heard the victim say, "Don't hurt me, but you can [expletive] me").
III. Matthews's Prosecutorial Error Argument
Matthews argues the prosecutor committed misconduct by exploiting the exclusion of the evidence regarding Wimbley's fingerprint at the scene and misleading the jury in summation about the DNA evidence and the available fingerprint evidence. He further contends the prosecutor committed misconduct by eliciting false testimony from Lainez that no fingerprints other than Matthews's resulted in a AFIS match. For the reasons discussed below, we conclude any purported error was harmless.
A. Legal Principles
"A prosecutor's conduct violates the Fourteenth Amendment to the federal Constitution when it infects the trial with such unfairness as to make the conviction a denial of due process." (People v. Morales (2001) 25 Cal.4th 34, 44.) "Conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it involves the use of deceptive or reprehensible methods to attempt to persuade either the trial court or the jury." (Ibid.)
"A prosecutor is given wide latitude to vigorously argue his or her case and to make fair comment upon the evidence, including reasonable inferences or deductions that may be drawn from the evidence. [Citation.]" (People v. Ledesma (2006) 39 Cal.4th 641, 726.) "'Whether the inferences the prosecutor draws are reasonable is for the jury to decide.' [Citation.]" (People v. Farnam (2002) 28 Cal.4th 107, 169.) However, "'counsel may not assume or state facts not in evidence'" or "'mischaracterize the evidence [citation]'. [Citation.]" (People v. Collins (2010) 49 Cal.4th 175, 209.)
When the claim focuses upon comments made by the prosecutor before the jury, the question is whether there is a reasonable likelihood the jury construed or applied any of the complained-of remarks in an improper or erroneous manner. (People v. Jackson (2016) 1 Cal.5th 269, 349; People v. Gurule (2002) 28 Cal.4th 557, 657.) In conducting this inquiry, the reviewing court does not lightly infer that the jury drew the most damaging rather than the least damaging meaning from the prosecutor's comments. (Id. at p. 657.)
B. Relevant Proceedings i. Matthews'sArgument that the Prosecutor Misled the Jury about the Fingerprint Evidence During Summation
Defense counsel attacked the significance of the fingerprint evidence during summation, arguing that the fingerprint examiner (Rak) who initially matched Matthews's fingerprint to the bloody fingerprint on the light switch did not testify at trial and "isn't here to tell you what he's done," that Lainez as the verifying examiner "didn't even tell us how he verified it either," and that Lainez initially excluded Matthews from two other bloody fingerprints.
Responding to these arguments, the prosecutor stated in rebuttal:
"As to the prints - there are prints that - we have all the fingerprint reports in evidence, and there's a lot of stuff in there that no witnesses testified to any of them. Counsel pointed out some - you'll see in Mr. Sanshuck's report, a lot of them are identified to the victim and her sons. There are some that are not identified to anyone, that are indicated unidentifiable. [¶] I'll ask you this, ladies and gentlemen. How many different persons' fingerprints would the police find in your home if they fingerprinted your entire house? We have no way to know. I don't think the police could reasonably be expected to know every single person who had been in that apartment when, you know - I mean, fingerprints can stay who knows how long? But that is not a reasonable conclusion to somehow suggest despite the defendant's fingerprints in blood - because those are the ones that matter, because that isn't from another time he visited because they are in blood. I think we can infer it's her blood, along with the other evidence that implicates him.
"Also, I notice that she says we don't have anything from Mr. Rak. Nothing from Mr. Rak. Well, all the prints were verified. All the prints you heard about that matched - they were examined by more than one person. The person who wrote the report and a verifier. Some of them were blind; some were not. [¶] We have an evidence slide 12, and we heard Mr. Lainez, the other day, that the practice back in 2014 was to make notes on the backs of the cards. He pointed out his notes on the back of that print card. But if you look to the left, you can read that it says, ID. R-P-2, Matthews, Kenneth, Ray, by Rak. So he did make notes.
There are notes. And they put them where they did it in 2004 [sic]; the back of the print card." (Italics added.)
Matthews argues the remarks italicized above were misleading because, although the prosecutor successfully argued for the exclusion of evidence concerning Wimbley's fingerprint at the scene, the prosecutor falsely "suggested that the jury had been presented with all the police knew about the fingerprints in Leona's home," that "any [of the] prints that were not matched to a person by a witness at trial were of unknown origin," and that the jury had "all of the fingerprint reports in evidence."
ii. Matthews's Argument that the Prosecution Misled the Jury about DNA Evidence During Summation
In the opening argument, the prosecutor summarized the fingerprint evidence and the DNA evidence against Matthews. Regarding the DNA evidence, the prosecutor specifically explained that the "DNA from the sperm fraction of the vaginal slide indicates a male source," and "[t]here was not enough to develop a profile, but there was male DNA in the . . . vaginal slide." The prosecutor further explained that "the partial DNA profile obtained from the sperm fraction of the anal slide matches [ ] Matthews to the exclusion rate of one in 10 million." After reviewing Matthews's statements to the detective that he did not know the victim, the prosecutor then rhetorically asked, "So how did his fingerprints end up in her apartment, and how did his DNA end up in her bodily cavities?" (Italics added.)
Citing the prosecutor's use of the word "cavities," Matthews contends the prosecutor misled the jury by arguing the male DNA in the vaginal slide belonged to Matthews.
iii. Matthews's Argument that the Prosecutor Elicited False Evidence from Lainez
On direct examination, Lainez testified that the AFIS fingerprint database system generated an alert in September 2014 about possible matches to latent fingerprints recovered from the scene. When the prosecutor asked which latent fingerprints generated alerts in AFIS, Lainez specifically identified lift 12, a latent fingerprint recovered from a bedroom wall. The prosecutor then asked, "Did another one of the fingerprints in this case number generate an alert?" Lainez answered, "No, it didn't."
After showing Lainez a report to refresh his recollection, the prosecutor then asked if "print number 3, . . . photo 5" generated a notice of a possible AFIS match. Lainez answered: "Yes. This particular latent print was processed . . . and sent into the AFIS, and it returned a possible candidate." Lainez further testified that, after he manually compared the bloody fingerprint on the bedroom light switch (as shown in photo 5) with an exemplar of Matthews's fingerprints, he concluded the latent print matched Matthews's left middle finger.
Matthews argues "Lainez's testimony that no print other than lift 12 generated an AFIS alert" was incorrect, and further argues that Lainez's subsequent testimony regarding the bloody print on the light switch was "also incorrect" and "misleading . . . because Matthews was not the only person AFIS identified as a potential match."
C. Analysis
Although Matthews did not object in the trial court on the grounds he now raises on appeal, we exercise our discretion to reach the merits of his arguments. (See, e.g., People v. Anderson (2020) 9 Cal.5th 946, 962-963.) Turning to the merits, we conclude that even assuming the prosecutor had committed misconduct in any or all of the ways Matthews alleges, any purported error was harmless. As previously explained, the bloody fingerprint and the DNA provide strong evidence of Matthews's identity as the killer, and he falsely told the police he did not know the victim and had never been to her apartment. Under these circumstances, we conclude any purported error was harmless under People v. Watson, supra, 46 Cal.2d at p. 836 and Chapman v. California, supra, 386 U.S. at p. 24.
IV. Matthews's Arguments Concerning the Six-Pack Photo Array and McGrew's Post-Hypnotic Testimony
Matthews next argues the trial court erred in denying the defense challenge to the suggestiveness of the photographic lineup, and that trial counsel rendered ineffective assistance by failing to challenge McGrew's post-hypnotic identification. We reject these contentions. The photographic lineup was not unduly suggestive. Even assuming the trial court erred in admitting McGrew's photographic identification, any error was harmless. And even assuming trial counsel was deficient in failing to object to the admission of McGrew's post-hypnotic testimony, Matthews cannot demonstrate prejudice.
A. Relevant Proceedings
During the pretrial hearing on December 9, 2019, the trial court asked defense counsel whether the defense was raising an argument that McGrew's identification of Matthews from the photographic lineup should be excluded because it was the product of hypnosis. Counsel responded that the defense was not making such an argument and that it was a tactical decision. The prosecutor asserted the post-hypnotic identification was admissible because the hypnosis pre-dated the law precluding testimony based on hypnosis, and the law was not retroactive.
The trial court then examined a color scan of the photographic lineup shown to McGrew, with Matthews's photograph in position four in the lineup. The court described the photographic lineup as follows: "The six pack looks to be a standard six pack from a long time ago. It depicts six African American males. Number 6 has much [sic] longer hair style than the other five, but they all appear to have similar hair styles; not closely cut, not cropped, but fairly lengthy." Regarding the skin tone of the individuals in the lineup, the trial court found that "[i]t doesn't seem to be that much of a distinction," noting that the "persons in positions 2 and 3 are probably darker than the person in position 1, but Matthews doesn't look significantly darker in complexion than the ones in 5 and 6."
The trial court tentatively ruled that the identification from the photographic lineup was admissible because "it's not unduly suggestive to the point it affects due process." The court explained that it did not "see that this is unduly suggestive in terms of complexion or appearance." The court noted there were "[s]imilar facial structures" and the "hair is a little different on some, but he doesn't stand out because of his hair."
The court and parties again discussed the issue at a hearing two days later. The court examined the actual photographic lineup shown to McGrew and found that, "[i]n terms of complexion, it does not appear to be unduly or suggestively point out [ ] Matthews in position number 4." After defense counsel noted McGrew had described the suspect as having "nappy hair," the court found Matthews had the "kind of hair she described," along with the individuals shown in positions 2, 3, and 5. The court stated it did not "think there's significantly enough difference in hairstyles, or that [Matthews] is unduly singled out as the person with that hair."
In its final ruling, the trial court found the photographic lineup was not unduly suggestive. The court further found the length of time and the tentative nature of the identification went to weight rather than admissibility, and that it would allow the defense wide latitude on cross-examination to explore the issue.
Turning to the issue of hypnosis, defense counsel cited People v. Alexander (2010) 49 Cal.4th 846 (Alexander) and argued that McGrew's testimony should be excluded because she was hypnotized during the original investigation and the tape of the hypnosis session was currently missing. Later, counsel reversed her position, and informed the court she was not contending McGrew's testimony should be excluded because she was hypnotized.
During the direct examination of McGrew at trial, McGrew unexpectedly identified Matthews as the person she saw on the night of the murder. Defense counsel objected and requested a sidebar conference. Defense counsel explained that she made a strategic decision not to challenge the hypnosis issue because she believed McGrew would not make an in-court identification, and this belief was based on the discovery materials and the prosecutor's earlier representations during discussions about the suggestiveness of the photographic lineup. Defense counsel also moved for a mistrial on the basis of McGrew's in-court identification, asserting the prosecutor had stated on the record that the witness would not make an in- court identification. The prosecutor responded that she did not recall all of the conversations, but she "certainly had no intention of asking for an in-court identification."
The court preliminarily denied the mistrial motion, subject to further review of the transcript regarding the earlier discussions of the admissibility of the identification from the photographic lineup.
When McGrew resumed her direct examination testimony, she testified that Detective McCoy showed her the photographic lineup in February 2018, that she circled Matthews's photograph, and that she told the detective: "Number 4 looks most like the person that was in Leona's house on the night she was killed." On cross-examination, McGrew testified that, after she gave a written statement to the police in December 1977, she was hypnotized by the police to assist her in remembering the incident.
Detective McCoy testified on cross-examination that he conducted a telephone interview with McGrew in February 2016, and McGrew stated: she recalled the incident; she did not go outside that night; and she did not see the suspect outside of the victim's apartment. Detective McCoy further testified McGrew did not provide a description of the suspect in her 1977 written statement, and she described the suspect as "tall, dark, with nappy hair" in a February 2018 interview with the detective.
According to Detective McCoy, McGrew was placed under hypnosis during the original investigation, but the tape of the recorded hypnosis had not been found.
B. Analysis
i. The Trial Court Properly Admitted McGrew's Photographic Identification and Even If Not, Its Admission was Harmless
"'A due process violation occurs only if the identification procedure is 'so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.' [Citation.]" (People v. Cook (2007) 40 Cal.4th 1334, 1355.) "The question is whether anything caused defendant to 'stand out' from the others in a way that would suggest the witness should select him. [Citation.]" (People v. Carpenter (1997) 15 Cal.4th 312, 367.) "A claim that an identification procedure was unduly suggestive raises a mixed question of law and fact to which we apply a standard of independent review, although we review the determination of historical facts regarding the procedure under a deferential standard." (Clark, supra, 63 Cal.4th at pp. 556-557.)
Matthews contends the photographic lineup was suggestive and unnecessary because McGrew described the suspect in 2018 as "tall and dark" with "nappy hair," and Matthews had "nappy hair" in the photograph and he was the darkest-complected man in the photographic lineup. We are not persuaded. Matthews's hair style and skin tone did not cause him to "stand out" from the others in the photographic lineup in a way that would suggest the witness should select him. The trial court properly noted Matthews and three other individuals in the lineup had the "kind of hair [McGrew] described." With respect to the comparative skin tones of the individuals, the trial court found that "[i]t doesn't seem to be that much of a distinction," noting that the "persons in positions 2 and 3 are probably darker than the person in position 1, but [Matthews] doesn't look significantly darker in complexion than the ones in 5 and 6." Given these circumstances, the trial court properly found that the photographic lineup was not impermissibly suggestive. (People v. Johnson (1992) 3 Cal.4th 1183, 1217-1218 [identification procedure sufficiently neutral where all photographs were of "Black males, generally of the same age, complexion, and build, and generally resembled each other"].)
Even assuming arguendo the photographic identification was improperly admitted, any error was harmless beyond a reasonable doubt. (Chapman v. California, supra, 386 U.S. at p. 36.) McGrew's photographic identification was a minor and non-essential component of the prosecution's case. As previously discussed, the issue of Matthews's identity as the killer was established by the forensic fingerprint and DNA evidence. In sharp contrast to this compelling forensic evidence, McGrew's photographic identification was merely tentative - she stated Matthews's photograph "looks most like the person" she saw at the victim's apartment - and made more than 40 years after the murder. Given the minor evidentiary value of the photographic identification, its admission was not prejudicial.
ii. Matthews's Ineffective Assistance of Counsel Claim
To succeed on a claim of ineffective assistance of counsel, the defendant must establish both: (1) counsel's performance was deficient because it fell below an objective standard of reasonable competence; and (2) prejudice resulted. (Strickland v. Washington (1984) 466 U.S. 668, 687-688, 694; In re Welch (2015) 61 Cal.4th 489, 514.) "'Surmounting Strickland's high bar is never an easy task.' [Citation.]" (Harrington v. Richter (2011) 562 U.S. 86, 105.) To establish prejudice, the defendant must demonstrate "'a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.' [Citation.]" (In re Gay (2020) 8 Cal.5th 1059, 1086.)
In People v. Shirley (1982) 31 Cal.3d 18, the California Supreme Court held that "the testimony of a witness who has undergone hypnosis for the purpose of restoring his memory of the events in issue is inadmissible as to all matters relating to those events, from the time of the hypnotic session forward." (Id. at pp. 66-67.) On January 1, 1985, Evidence Code section 795 went into effect. (People v. Hayes (1989) 49 Cal.3d 1260, 1273-1274.) This statute applies only to pre-hypnotic recollections; it allows testimony about matters "the witness recalled and related prior to the hypnosis" if certain conditions are met. (Ibid.) With regard to post-hypnotic recollections, however, Shirley's rule of exclusion applies. (Hayes, supra, at p. 1269.)
Matthews asserts trial counsel's failure to challenge McGrew's post-hypnotic identification under the above mentioned authorities constituted ineffective assistance of counsel. Even assuming trial counsel's performance was deficient in failing to object, however, Matthews cannot demonstrate prejudice. As discussed above, Matthews's identity as the killer was established by the forensic fingerprint and the DNA profile obtained from the sperm fraction of the anal slide. His guilt was also supported by the evidence that he falsely told the detective that he did not know the victim and had never been to the victim's apartment (as discussed above, the falsity of this statement was demonstrated by the presence of his fingerprints in her apartment and the notation in the victim's phonebook ("Kenneth's sister 779-7044") that correlated with Matthews's sister's phone number at the time of the murder). Given the strength of this evidence, we conclude there is not a reasonable probability that Matthews would have received a more favorable outcome had McGrew's testimony been excluded.
V. Matthews's Argument Regarding CALCRIM No. 315
The court instructed the jurors with CALCRIM No. 315, directing them to consider a non-exhaustive list of factors in evaluating eyewitness identification testimony, including "how certain was the witness when . . . she made an identification." Matthews argues the "certainty" aspect of the instruction prejudicially violated state law and state and federal due process. Matthews did not object in the trial court on the grounds he now raises on appeal. Indeed, Matthews's attorney requested CALCRIM No. 315 without asking for modification to or deletion of the certainty factor. Nevertheless, we exercise our discretion to reach the merits of his argument. (See People v. Anderson, supra, 9 Cal.5th at pp. 962-963.)
Turning to the merits, we reject his contention in light of our Supreme Court's recent decision in People v. Lemcke (2021) 11 Cal.5th 644 (Lemcke), which held the inclusion of the certainty factor in CALCRIM No. 315 did not violate the defendant's federal and state due process rights to a fair trial. (Lemcke, supra, 11 Cal.5th at pp. 646-647, 654-661.) The Lemcke court noted the instruction did not direct the jury that "'certainty equals accuracy'" or "state that the jury must presume an identification is accurate if the eyewitness has expressed certainty." (Id. at p. 657.) The Lemcke court also explained that the jury was instructed that the prosecution had the burden of proving all elements of the crime beyond a reasonable doubt, and that the prosecution was required to prove the defendant's identity as the perpetrator beyond a reasonable doubt. (Id. at p. 658.) The court further noted that the defendant had the opportunity to cross-examine the eyewitness and the investigating officers on any problematic aspects of the eyewitness identification procedures, and that the defendant was permitted to present expert witness testimony on eyewitness identification. (Id. at pp. 657, 660.) Applying the principles set forth in Lemcke, we conclude the instruction did not violate Matthews's rights under state law or due process.
Even assuming the instruction did violate state law and/or federal due process, the purported error was harmless under both People v. Watson, supra, 46 Cal.2d at p. 836 and Chapman v. California, supra, 386 U.S. at p. 24. The instruction regarding witness certainty was a minor component of Matthews's trial. As discussed above, Matthews's identity as the killer was established by the forensic fingerprint and the DNA evidence, as well as evidence that he falsely told the detective that he did not know the victim and had never been to her apartment.
VI. Matthews's Argument Regarding Cross-Examination of the DNA Expert
Matthews contends the trial court erred by prohibiting the defense from cross-examining the DNA expert about the random match probability assigned to the DNA profile matching Matthews. He specifically asserts the trial court erred by preventing the defense "from eliciting relevant evidence that, with respect to [genetic relatives], the [random match probability] is much higher." The Attorney General contends: "The trial court properly excluded the proposed line of cross-examination because this line of inquiry was irrelevant in light of the defense's acknowledgement that the defense was not raising a third-party culpability defense involving one of [Matthews's] genetic relatives." As discussed in greater detail below, we agree with the Attorney General.
A. Background
DNA expert Catherine Roller testified on direct examination that she compared the DNA profile from the sperm fraction of the anal slide with Matthews's DNA profile, and she concluded that the "male component DNA profile deduced from the sperm fraction of the anal slide matched the DNA profile" of Matthews. To show the significance of the match, Roller referenced a statistic called the "random match probability," which "essentially means if I were going to go out into the general U.S. population and grab someone, what are the chances that they would have this profile that was developed in the evidence sample." Roller further explained that the "probability of randomly selecting an unrelated individual with that partial DNA profile is one in 38 million U.S. Caucasian population; one in 10 million U.S. African American population; one in 17 million in the U.S. Hispanic population."
On cross-examination, Roller similarly testified that, "[f]or the U.S. African American population, if I were to pick a random person, you would expect the chances that they would have this profile are one in 10 million." Defense counsel later asked if it was correct that "the closer you get in degree of relation, the more common it is that you will share features of your DNA profile," and Roller agreed with that contention. Defense counsel then asked, "So given that premise, if you have a group of related people and you're looking for that profile in that group of related people, the statistic would not be one in 10 million?" The prosecutor raised a relevancy objection, and the trial court sustained it.
The court and the parties held an in-chambers conference on the issue. The court asked defense counsel if her question was that the one in 10 million number "would be less exclusionary if you're comparing African American relations related to each other," and counsel agreed. The prosecutor argued that the potential exclusion rates for relatives was irrelevant unless the defense was proffering one of Matthews's brothers as a possible suspect. The court noted that the line of inquiry appeared to be going into potential issues of third-party culpability, and the court asked if Matthews had any siblings or if the defense had any evidence to tie any of the siblings to the scene. Defense counsel responded that Matthews had a brother, and she explained that she was "trying to decrease the probative weight of this particular statistic" involving unrelated people by showing a "more common" statistic among related individuals. When the court asked about the relevance of that proposed evidence unless the defense was attempting to suggest the possibility that a relative was the perpetrator, defense counsel responded that she "had no evidence that a brother did it" and she was "not suggesting that." The court sustained the objection, explaining the evidence was irrelevant unless the defense presented third-party culpability evidence involving Matthews's brother.
B. Analysis
"'Forensic DNA analysis is a comparison of a person's genetic structure with crime scene samples to determine whether the person's structure matches that of the crime scene sample such that the person could have donated the sample.' [Citation.]" (People v. Turner (2020) 10 Cal.5th 786, 800 (Turner).) "'Once a match is found, the next question is the statistical significance of the match.'" (Ibid.) "This number helps the jury evaluate how much weight it should give to evidence of a match," and a "match would be of little significance if the genetic profile were shared by many others in the population. [Citation.]" (Ibid.) The relevant question is: "'what is the probability that a person chosen at random from the relevant population would likewise have a DNA profile matching that of the evidentiary sample?' [Citation.]" (Id. at p. 801.) "The smaller the odds that a match could be found at random in the relevant population, the greater the evidentiary weight of a suspect's match. [Citation.]" (Ibid.)
"[T]he random match probability statistic[ ] is calculated by the unmodified product rule, which calculates the rarity of a match in the population. [Citation.]" (Turner, supra, 10 Cal.5th at pp. 803-804, italics omitted.) "If a profile is extremely rare, as is increasingly likely the more loci are examined, '[i]t is relevant for the jury to know that most persons of at least major portions of the general population could not have left the evidence samples.' [Citation.]" (Id. at p. 808.) "The rarity of the evidence profile has a tendency to prove that the defendant, who has a matching profile, was the source of the evidence at the crime scene." (Ibid.)
Evidence Code section 210 defines relevant evidence as evidence "''''having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action.'"''' (People v. Carter (2005) 36 Cal.4th 1114, 1166.) We review the trial court's ruling for abuse of discretion. (People v. Bryant, Smith and Wheeler (2014) 60 Cal.4th 335, 405.) We do not disturb the trial court's exercise of discretion on appeal unless it was exercised in "an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice." (People v. Jordan (1986) 42 Cal.3d 308, 316.)
Applying these principles, we conclude the trial court did not abuse its discretion. It was reasonable for the trial court to conclude the proposed line of inquiry was irrelevant unless the defense was raising a third-party culpability defense involving one of Matthews's genetic relatives. Absent a foundational showing that one of Matthews's genetic relatives was a potential suspect, a statistic that measured the prevalence of a matching DNA profile in a restricted population consisting solely of Matthews's genetic relatives did not tend to disprove the conclusion that Matthews was the source of the DNA evidence in the anal sample. Because the defense expressly disclaimed that it was presenting such a third-party culpability theory, the trial court did not act arbitrarily or capriciously in sustaining the relevancy objection.
Even assuming the court erred in excluding the evidence, the purported error was harmless under both People v. Watson, supra, 46 Cal.2d at p. 836 and Chapman v. California, supra, 386 U.S. at p. 24. As discussed above, there was extensive evidence of Matthews's guilt, and the proposed line of inquiry had minimal evidentiary weight because there was no evidence to suggest one of Matthews's genetic relatives was either the actual perpetrator or the individual who deposited the DNA in the sperm fraction of the anal slide.
VII. Matthews's Contention that the Trial Court Misinstructed Prospective Jurors on Reasonable Doubt
Matthews next argues the trial court erroneously instructed the jurors on reasonable doubt during voir dire by drawing an improper analogy to a "cockeyed" traffic line painted on a manhole cover. For the reasons that follow, we reject his contention.
A. Background
During jury selection, the trial court discussed the concepts of burden of proof and reasonable doubt by first reading the entirety of CALCRIM No. 220, the standard jury instruction on reasonable doubt. Noting that the instruction involved "a few different concepts," the court explained that it was going to "break it down a little bit for you." After discussing the presumption of innocence and the burden of proof, the court addressed the concept of reasonable doubt as follows:
"Now the standard is proof beyond a reasonable doubt. You're not going to get a definition of reasonable. There's not another instruction that tells you what is reasonable. Reasonable is something that we can all generally agree on. Everybody knows when something is reasonable or not reasonable. People may have particular definitions of what is reasonable or not, but in this case, you have to decide whether a doubt you have is reasonable or unreasonable. Because if it's an unreasonable doubt, you ignore it. If you're convinced beyond a reasonable doubt, then you find the defendant guilty. If you have a reasonable doubt, you find the defendant not guilty. But you must reject unreasonable or speculative doubts. We're all human beings. We're all capable of conjuring things or wandering about things. Your job is to set those speculations and notions aside and follow the evidence and make a simple decision; am I or am I not convinced beyond a reasonable doubt. If you don't have a reasonable doubt, you vote guilty. If you still have a reasonable doubt, you vote not guilty. But you don't rely on unreasonable doubts or speculations about what things might have happened. Everybody understand that?
"Proof beyond a reasonable doubt is proof that leaves you with an abiding conviction that the charge is true. Abiding simply means long lasting. You have it a week later. A month later, you still have it. It means long lasting.
"The instruction goes on to say, 'The evidence need not eliminate all possible doubt, because everything in life is open to some possible or imaginary doubt.' What that means is you don't come up with doubts that aren't based on the evidence or reason and use that as an excuse for a reason not to vote guilty. You have to be reasonable and objective in this case, and if you are convinced beyond a reasonable doubt, you vote guilty. And again, as I said, you have to have your own definition of reasonable based on your life experience.
"An example I like to use-you can agree with me or not. But everyone has seen the manhole covers in the middle of the street and the line dividing the two lanes of the highway. Everybody understands that. Now, there's one on the street that I drive down. It's right down the center of the street. It's a manhole cover, and the line that goes down the street goes straight down the street, hits the manhole cover, and then the line on the cover is cockeyed. On the other side of the manhole cover on the street, the line dividing the road continues on perfectly straight. Now, is it possible that when they painted the street, they painted the line up to the manhole cover, moved the machine, went cross-ways across the man hole cover, and then turned it and continued down the street? I suppose it's possible, but is it reasonable? To me the only reasonable explanation is somebody did some work under the street. They pulled the manhole cover off. When they got done, they put it back on and they didn't bother to put it on straight. If that was the issue in the case, and you had some evidence from somebody testifying, "Yeah, I saw the guys painting the street. They stopped at the manhole cover and went across it cockeyed, and moved the machine." If you had some evidence affirmatively establishing that, maybe you could reasonably conclude that is what happened, if you believed that witness. But absent some kind of affirmative evidence, really, the only reasonable explanation for the deviation in the line is that somebody moved the cover after it was painted. I think that is a good explanation. It's certainly possible. You may agree or disagree. You have to decide your own definition of reasonable. But that, to me, is a good illustration of coming up with an explanation that's unreasonable, vers[u]s relying on what's reasonable. Anybody not understand what I'm getting at? I see no hands." (Italics added.)
The trial court referenced the manhole-cover analogy again on two other occasions during jury selection.
B. Analysis
Matthews argues the trial court's manhole-cover analogy and the above-italicized remarks improperly implied the prosecution's burden was met if its theory was reasonable in light of the facts supporting it, erroneously conflated the concept of rejecting unreasonable inferences with the reasonable doubt standard, and improperly shifted the burden of proof. Matthews also contends the trial court erred in defining abiding as merely "long lasting." Although trial counsel did not object on the grounds Matthews now raises, we exercise our discretion to reach the merits of his arguments. (See People v. Anderson, supra, 9 Cal.5th at pp. 962-963.) Turning to the merits, we reject Matthews's contentions.
As the Attorney General points out, People v. Bell (2019) 7 Cal.5th 70 (Bell) is instructive. In Bell, the court addressed the defendant's claim that the prosecutor trivialized the reasonable doubt standard during closing argument when he referred back to the standard reasonable doubt instruction and then stated:
"You have got an instruction about reasonable doubt. . . . Reasonable doubt is not all possible doubt. It has to be based on reason. [¶] If I take this quarter and flip it in the air over a hard surface, it's possible it could land on heads or it's possible it could land on tails. It's reasonable either way. It's reasonable because it's based on physics, logic and reason. [¶] But if I flip this coin up in the air and expected it to land smack dab on its side and stay standing still, is it possible? Sure, it's possible. Anything is possible, but is it reasonable?" (Id. at p. 110.) Rejecting the defendant's claim, the Bell court held the prosecutor's argument did not undermine the reasonable doubt standard. (Bell, supra, 7 Cal.5th at pp. 111-112.) The court noted the prosecutor was "attempting to explain the meaning of 'reasonable, '" with the prosecutor specifically citing the standard reasonable doubt instruction. (Id. at p. 111.) The Bell court further explained that unlike other cases where a prosecutor improperly attempted to "quantify reasonable doubt or analogize it to everyday decisions like whether to change lanes in traffic[, ]" the prosecutor's coin-flip analogy "gave jurors an example of a possible or imaginary, but unlikely, occurrence." (Ibid.) Because the "statute defining the burden of proof expressly states that a 'reasonable' doubt is not a mere '"possible'" or '"imaginary"' doubt, [citations]" the Bell court concluded the "prosecutor's argument did not undermine this standard. [Citation.]" (Id. at pp. 111-112.)
The decision in People v. Romero (2008) 44 Cal.4th 386 - which the Bell court cited in support of its holding (Bell, supra, 7 Cal.5th at p. 112) - is also instructive. In Romero, the prosecutor explained in summation that the "reasonable doubt standard asks jurors to 'decide what is reasonable to believe versus unreasonable to believe' and to 'accept the reasonable and reject the unreasonable.'" (Romero, supra, 44 Cal.4th at p. 416.) The Romero court found the prosecutor's argument did not "lessen the prosecution's burden of proof beyond a reasonable doubt." (Ibid.)
Here, the trial court did not err in using the manhole-cover analogy to explain the meaning of "reasonable" in the context of the reasonable doubt standard. Expressly citing the language in CALCRIM No. 220 that the "evidence need not eliminate all possible doubt, because everything in life is open to some possible or imaginary doubt", the trial court used the manhole-cover analogy to illustrate "an example of a possible or imaginary, but unlikely, occurrence." (Bell, supra, 7 Cal.5th at p. 111.) Considered in context, the trial court's attempt to explain the meaning of "reasonable" did not lessen the standard or shift the burden of proof. (See id. at pp. 111-112; Romero, supra, 44 Cal.4th at p. 416.)
The trial court also did not err in explaining that "abiding" meant "long lasting." In People v. Pierce (2009) 172 Cal.App.4th 567, the appellate court observed that "[t]he United States Supreme Court and the California Supreme Court, respectively, have described 'an abiding conviction' as one that is 'settled and fixed' [citation] and one that is 'lasting [and] permanent' [citation]." (Id. at p. 573.) The trial court's explanation that "abiding means long lasting" was thus proper.
VIII. Matthews's Argument Regarding the Prosecutor's Statements about Attempted Rape
Matthews contends the prosecutor misstated the intent requirement for attempted rape during summation. We disagree.
The jury was instructed that to find Matthews guilty of first-degree murder under the theory of felony murder, the prosecution was required to prove that he (1) "committed or attempted to commit robbery or rape," and (2) "intended to commit robbery or rape." The jury was similarly instructed that to find the special circumstance allegations true, the prosecution was required to prove that he "committed or attempted to commit (1)robbery or (2) rape," and he "intended to commit (1) robbery or (2)rape." With respect to the offense of rape, the jury was instructed that the prosecution was required to prove that Matthews had "sexual intercourse with a woman," with sexual intercourse defined as "any penetration, no matter how slight, of the vagina or genitalia by the penis." For the attempt offenses, the jury was instructed that the prosecution was required to prove Matthews "intended to commit robbery or rape."
In the rebuttal argument, the prosecutor discussed the first-degree felony murder theory and the attempted rape-murder special circumstance allegations as follows: Even if there's any doubt in your mind about the fact of the rape; remember, the felony murder applies even for [sic] if it's an attempted rape. [¶] Now, that makes it interesting, and I had to think about this. Even if penetration didn't occur in the vagina, what was Mr. Matthews thinking when he was attempting to have sex with her? What is a rapist thinking when he's attempting to rape a woman? Is he thinking, I want to rape this woman, but I only want to sodomize her. I absolutely do not want to have any vaginal penetration. Because unless he's thinking that - if it's general intent to put his penis in one of those two places, then that includes the vagina, and that is still an attempt to commit rape. It would be an unusual rapist indeed, who had the limited intent to penetrate the vagina. But in any event, there's male DNA in her vagina. Although trial counsel did not object to the remarks and request an admonition, we exercise our discretion to reach the merits of Matthews's argument. (See People v. Anderson, supra, 9 Cal.5th at pp. 962-963.) Turning to the merits, we reject his contention. Considered in full context, the prosecutor properly argued that Matthews committed attempted rape because he intended to vaginally penetrate the victim, i.e., it would be "an unusual rapist" who was "attempting to rape" the victim, but did not "want to have any vaginal penetration." Thus, the prosecutor did not misstate the law regarding the requisite intent for attempted rape.
Even assuming the prosecutor's statements were erroneous, the purported error was harmless under People v. Watson, supra, 46 Cal.2d at p. 836 and Chapman v. California, supra, 386 U.S. at p. 24. For first degree felony murder and the felony-murder special circumstance, the jury was fully instructed on the requisite intent requirement for the underlying felony of attempted rape. It is presumed "not only that jurors follow instructions in general [citation], but also 'that jurors treat the court's instructions as a statement of the law by a judge, and the prosecutor's comments as words spoken by an advocate in an attempt to persuade' [citations]." (People v. Potts (2019) 6 Cal.5th 1012, 1037.) Moreover, there was overwhelming evidence that Matthews intended to commit rape, as shown by the presence of his DNA in the sperm fraction of the anal sample, Ravonne's testimony that the perpetrator was attempting to have sex with the victim, McGrew's testimony that she heard the victim say, "Don't hurt me, but you can [expletive] me", and the evidence that the victim's body was mostly nude and her legs were spread apart.
IX. Matthews's Cumulative Error Argument
Matthews lastly contends that cumulative error and cumulative prejudice require reversal. We reject this contention. "We have either found no error or, in those instances where error has been . . . assumed, no prejudice." (People v. Williams (2015) 61 Cal.4th 1244, 1291.) "Thus, there is no prejudice to accumulate. (Ibid.)
DISPOSITION
The judgment is affirmed.
We concur: WILLHITE, Acting P.J. MICON, J. [*]
[*] Judge of the Los Angeles County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.