Opinion
NOT TO BE PUBLISHED
San Francisco County Super. Ct. No. 198020
Jenkins, J.
This is an appeal from final judgment following a jury’s conviction of defendant Anthony A. Merino on two counts of engaging in lewd conduct, and one count each of committing a lewd and lascivious act on a child 14 or 15 years old, false imprisonment and indecent exposure. We affirm.
FACTUAL AND PROCEDURL BACKGOUND
On January 13, 2009, an amended information was filed alleging that defendant committed the offenses of a lewd and lascivious act on a child 14 or 15 years old (Pen. Code, § 288, subd. (c)(1)) (count one), false imprisonment (Pen. Code, § 236) (count two), indecent exposure (Pen. Code, § 314.1) (counts three and five), and lewd conduct (Pen. Code, § 647, subd. (a)) (counts four and six). Trial on these charges began the same day, during which the following evidence was revealed.
Unless otherwise stated, all statutory citations herein are to the Penal Code.
I. The Prosecution’s Case.
A. The Uncharged Milpitas Offense.
In March 2003, Kathleen G. was sitting in the driver’s seat of her car in Milpitas talking on a cellular telephone. Just as she hung up, a man approached her car window with his penis exposed. The man then proceeded to masturbate and tap his penis against the window as Kathleen G. screamed and turned away. After ejaculating on her window, the man left in a green Toyota Camry.
Kathleen G. called the police, who came to the scene and collected a semen sample from the pavement near her vehicle. At trial, criminalist Opritsa Tudoriu testified that she tested the sample, positively identifying it as semen, and then performed DNA analysis on it. After creating a genetic profile from the sample, Tudoriu entered the information into the laboratory’s computer system. However, no one was ultimately charged for the incident, and the DNA evidence was destroyed pursuant to police policy once the statute of limitations expired.
B. The Cindy T. Incident (Counts One and Two).
The same year, on October 14, 2003, Cindy T., a high school sophomore, was walking in San Francisco on 25th Avenue towards Fulton Street. During her walk, Cindy T. approached a green two-door car with no license plate parked in a driveway and blocking the sidewalk. As she attempted to walk around the car, a man wearing sunglasses and a hooded sweatshirt grabbed her arm and pulled her to the corner of the driveway. Although Cindy T. tried to free herself by elbowing the man in the stomach, he managed to pin her against the wall, where he proceeded to expose his penis and masturbate while groaning. When the man finished, he kissed her on the forehead before releasing her. Cindy T. fled and, after looking back to make sure the man was gone, called 911.
Cindy T. later gave her jeans, which had white spots on them from the incident, to police. At trial, criminalist Armand Tcheong testified that Cindy’s jeans tested positive for semen. Tcheong further explained that the crime lab extracted DNA from the sample, made copies of it, ran it through a genetic analyzer, and entered the data into a computer program to generate a genetic profile for the sample.
Initially, there was no reference sample with which to compare the sample taken from Cindy T.’s jeans. However, about a year later, police collected a DNA sample from defendant, which Tcheong compared to the genetic profile taken from the sample on Cindy’s jeans. Based on this comparison, Tcheong opined defendant could not be excluded as a potential donor of the sample.
Tcheong also reviewed a report analyzing the DNA taken from the scene of the Milpitas incident and concluded based on the genetic profile that defendant could not be excluded as a potential donor of that sample either. Tcheong explained the “same genetic profile for semen on Cindy T.’s jeans is estimated to occur at random among unrelated individuals in approximately one in 560 billion U.S. Caucasians, one in one trillion African-Americans, and one in 1.3 trillion California Hispanics and one in 1.9 trillion individuals from the general Asian population.”
C. The Julie S. Incident (Counts Three and Four).
On September 9, 2004 around 6:00 p.m., Julie S. looked out her upstairs kitchen window on Ulloa Street near 42nd Avenue in San Francisco, and saw a dark green Camry pull into her neighbor’s driveway. Julie S. could see through the car’s windshield a heavyset man with olive-colored skin sitting inside with his shirt pulled up and pants pulled down. The man’s genitals were exposed and he was moving his hand along his erect penis. She could not see his face, but she did see children playing outside a few houses away, prompting her to tell her own children to stay in the backroom of their house while she wrote down the car’s license plate. Julie S. then yelled out to the man, causing him to look up, at which point she could see his face. She ran downstairs and told the man she was writing down his license plate, and the man drove off. At this point, she realized the car had no license plate, but she did see the word “Camry” in gold lettering on the back.
Julie S. called 911, describing the man as having dark hair parted on the side, a very full face with dark sunglasses, a big gut and hairless chest. Shortly thereafter, Julie S. helped police develop a sketch of the man and, on November 30, 2004, she identified defendant out of a police lineup, noting his hair was combed differently.
D. The Maria A. Incident (Counts Five and Six).
On September 28, 2004 at around 2:45 p.m., Maria A., a high school senior, was walking home from school in San Francisco near the intersection of Eucalyptus and Clearfield Drive. A tall, heavyset Caucasian man with thick lips and a large jaw approached her from around a car wearing sunglasses and a hooded sweatshirt. The man reached towards Maria A. with one hand, asking, “Hey, can you help me?” With his other hand, the man rubbed his exposed penis. Maria fled and called 911 as soon as she was sure the man was not following her.
An officer in a marked police car responded to Maria A.’s call. Shortly thereafter, officers observed the man park his car in a driveway on 37th Avenue, exit the car, and stand facing the residence with his pants down. He then did the same thing at another residence near Santiago Avenue and 39th Avenue. At this point, one of the officers pulled up next to the man, prompting the man to get in his car and drive off. The officers followed the man intermittently for 10 to 20 minutes, during which time he made several U-turns, appearing to drive without purpose. The officers finally stopped the man on 37th Avenue, ordering him out of the car. They observed a noticeable bulge in the man’s crotch area and found a jar of KY jelly in the car’s center console.
Maria A. later identified the man as defendant in an infield show-up.
II. The Defense Case.
Defendant testified at trial that he ended a 17-year relationship with his girlfriend in 2001. In 2002, he began exercising and taking dietary supplements to look and feel better and to meet women. These supplements caused him to urinate frequently.
With respect to the March 2003 Milpitas incident, defendant acknowledged approaching Kathleen G.’s car and knocking on her window to ask whether she was interested in having sex. Defendant explained that, earlier in the night, he had visited a Milpitas nightclub hoping to meet a woman to have a consensual sexual encounter. However, he did not meet such woman at the nightclub and saw Kathleen G. sitting in her car as he was leaving. Defendant believed after knocking on her car window that Kathleen was agreeable to his advances, so he began to rub his leg and then pulled out his penis to masturbate. According to defendant, Kathleen laughed and looked interested before he eventually ejaculated and left.
With respect to the Cindy T. incident on October 14, 2003, defendant likewise acknowledged having an encounter with her, albeit under circumstances different than she reported to police. According to defendant, earlier in the day, he had gone to Ocean Beach in San Francisco to exercise, after which he returned to his car with a prostitute, who proceeded to engage in oral sex with him after pulling out a condom. When this encounter ended, defendant dropped the prostitute off at 25th Avenue and Geary Boulevard, driving to Cabrillo and Fulton Streets, where he pulled over with car trouble. Defendant realized once leaving his car to look under the hood that his sweat pants were falling down and he was still wearing the condom. As he was about to remove the condom, Cindy T. approached. Using one hand to hold up his pants, defendant gestured to her to walk past him, but instead the girl stopped. Flustered he grabbed her to push her away, at which point she punched him in the testicles and lower stomach. He pulled Cindy towards him to stop her attack, telling her to go away, which she eventually did.
Appellant denied having any contact with Julie S., insisting it was a case of mistaken identity and noting he never parted his hair on the side and did not have a hairless chest.
With respect to the Maria A. incident on September 28, 2004, defendant again acknowledged it occurred, but claimed the circumstances differed from what the victim reported to police. Defendant explained he pulled over in a residential area on Eucalyptus Drive after exercising at Lake Merced because he needed to urinate. He parked his car and stood between it and the curb to urinate after making sure no one was around. Because defendant has a problem that sometimes causes his urine stream to split into two directions, wetting his clothing, he massaged his penis before starting. Just then, Maria A. approached him, prompting defendant to attempt to zip his pants. However, his zipper got stuck, at which point Maria began screaming and fleeing in the opposite direction.
Defendant returned to his car and drove off, but then stopped again on 37th Avenue because he still needed to urinate. However, there were too many people around so he left, eventually stopping again on 39th Avenue. Defendant did not urinate at this location either, however, because he was concerned about urinating in someone’s garage. After returning to his car, defendant began to suspect he was being followed. He continued driving, trying to determine what to do. When he eventually stopped again on 37th Avenue, a police car blocked him and an officer approached with his gun drawn. At this point, defendant was arrested.
Defendant admitted owning a Toyota Camry with gold lettering. His car did not have a license plate between March and November 2004 because he was having custom plates made. He customarily kept KY jelly in his car in case he met someone and had a sexual encounter.
III. The Verdicts, Sentence, and Appeal.
On January 22, 2009, the jury found defendant not guilty of count three, indecent exposure with respect to Julie S. The next day, however, the jury found him guilty of all remaining counts.
On May 20, 2009, defendant was sentenced to two years in state prison and, a week later, he filed a timely notice of appeal.
DISCUSSION
Defendant raises three issues on appeal. First, defendant contends he was denied his right to a fair trial due to the erroneous admission of evidence relating to his alleged propensity to commit sexual offenses. Second, defendant contends his right to a fair trial was further compromised by the jury’s receipt of an erroneous instruction with respect to the uncharged offense he allegedly committed in Milpitas in 2003. Finally, defendant contends his Sixth Amendment right to confrontation was violated when an expert witness for the prosecution offered opinions based on laboratory notes and DNA analyses performed by two criminalists not subject to cross-examination at trial. We address each of his contentions in turn below.
I. Admission of Propensity Evidence.
Defendant first challenges the trial court’s admission of evidence pursuant to Evidence Code section 1108 (section 1108) relating to the uncharged sexual offense he allegedly committed in Milpitas in March 2003. According to defendant, admission of this evidence to prove his propensity to commit sexual offenses violated his constitutional rights to due process and equal protection because section 1108 is facially unconstitutionally, and violated Evidence Code section 352 because the evidence was substantially more prejudicial than probative. The relevant legal principles with respect to defendant’s challenge are as follows.
Section 1108 provides an exception in cases involving sexual offenses to the general rule, set forth in Evidence Code section 1101 (section 1101), barring admission of evidence of a defendant’s character to commit crimes to prove he or she committed the particular crime at issue. Specifically, section 1101, subdivision (a) provides: “Except as provided in this section and in Sections 1102, 1103, 1108, and 1109, evidence of a person’s character or a trait of his or her character (whether in the form of an opinion, evidence of reputation, or evidence of specific instances of his or her conduct) is inadmissible when offered to prove his or her conduct on a specified occasion.” Subdivisions (b) and (c) of the statute permit admission of such evidence, however, when relevant to attack or support a witness’s credibility or to prove some fact other than a person’s character or disposition to commit crimes, such as the person’s motive, identity, intent or common scheme or plan. Section 1108, subdivision (a), in turn, provides: “In a criminal action in which the defendant is accused of a sexual offense, evidence of the defendant’s commission of another sexual offense or offenses is not made inadmissible by Section 1101, if the evidence is not inadmissible pursuant to Section 352.” Under Evidence Code section 352, the trial court has discretion to exclude evidence “if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.”
In this case, defendant first argues that section 1108 is facially unconstitutional on due process and equal protection grounds. The California Supreme Court, however, has in no uncertain terms rejected defendant’s due process argument, and other appellate courts have rejected his equal protection argument. Specifically, the California Supreme Court, which we are bound to follow, held in People v. Falsetta (1999) 21 Cal.4th 903 that “the trial court’s discretion to exclude propensity evidence under [Evidence Code] section 352 saves section 1108 from defendant’s due process challenge.” (People v. Falsetta, supra, 21 Cal.4th at p. 917; Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
In addition, our colleagues in the Third Appellate District held in People v. Fitch (1997) 55 Cal.App.4th 172, 184-185, that section 1108 survives challenge under the equal protection clause. The court reasoned that “[a]n equal protection challenge to a statute that creates two classifications of accused or convicted defendants, without implicating a constitutional right, is subject to a rational-basis analysis. (Estelle v. Dorrough (1975) 420 U.S. 534, 537-538 [95 S.Ct. 1173, 1175-1176, 43 L.Ed.2d 377, 381].) [¶]... [S]ection 1108 withstands this relaxed scrutiny. The Legislature determined that the nature of sex offenses, both their seriousness and their secretive commission which results in trials that are primarily credibility contests, justified the admission of relevant evidence of a defendant's commission of other sex offenses. This reasoning provides a rational basis for the law.” (People v. Fitch, supra, 55 Cal.App.4th at pp. 184-185.) The People v. Falsetta court acknowledged our appellate colleagues’ decision in this regard approvingly, yet had no reason to ultimately pass judgment on it. (People v. Falsetta, supra, 21 Cal.App.4th at p. 918.) In any event, we too agree with the People v. Fitch holding and reasoning, and therefore adopt it for purposes of this case. Accordingly, we reject defendant’s facial challenge to section 1108, and turn to his challenge to the trial court’s exercise of discretion under Evidence Code section 352 (section 352).
As stated above, defendant contends admission of the evidence of his uncharged Milpitas offense was substantially more prejudicial than probative, and thus should have been excluded under section 352. In doing so, defendant argues the evidence was highly inflammatory by its very nature, only marginally relevant due to differences between the circumstances of the Milpitas offense and the charged offenses, and created an undue risk that the jury would punish him for the uncharged offense rather than the charged offenses. Defendant also argues this evidence rendered his trial unnecessarily lengthy and confusing for the jury, particularly in light of the extensive DNA-related testimony.
We reject defendant’s arguments. Under the governing standard, evidence offered under section 1108 will not be excluded on the basis of section 352 unless “ ‘the probability that its admission will... create substantial danger of undue prejudice’... substantially outweighed its probative value concerning the defendant’s disposition to commit the sexual offense or offenses with which he is charged and other matters relevant to the determination of the charge.” (People v. Soto (1998) 64 Cal.App.4th 966, 984, quoting Historical Note, 29B pt. 3, West’s Ann. Evid. Code (1998 pocket supp.) foll. § 1108, p. 31 [emphasis added].) Here, the trial court recognized when admitting the evidence that, like the charged offenses in this case, the uncharged Milpitas offense involved defendant (admittedly) exposing himself and masturbating in front of an unknown female victim in public. Thus, aside from the facts that Kathleen G. was an adult while Cindy T. and Maria A. were minors and, unlike the minors, was protected from defendant’s acts by the glass of her car window, “the major features of the prior sexual conduct closely resembled those in the current charges.” (See People v. Miramontes (2010) 189 Cal.App.4th 1085, 1102 [affirming trial court’s admission of evidence of uncharged sexual offenses under section 352].) In addition, we note that the uncharged sexual offense occurred the same year as the first of defendant’s charged offense and within two years of the other charged offenses, rendering the evidence even more relevant and less prejudicial due to its nearness in time. (Cf. People v. Johnson (2010) 185 Cal.App.4th 520, 534-535 [concluding prior offenses occurring nine years before the charged offense were not too remote in time to be probative given the significant similarities between the offenses].)
Finally, we add that the trial court instructed the jury to consider the evidence relating to the uncharged Milpitas offense only if the prosecution first proved it by a preponderance of the evidence. The jury was also instructed that “[i]f you decide that the defendant committed the uncharged offense, you may, but are not required to conclude from that evidence that the defendant was disposed or inclined to commit sexual offenses, and based on that decision, also conclude that the defendant was likely to commit and did commit the crimes charged here. [¶] If you conclude that the defendant committed the uncharged offense, that conclusion is only one factor to consider with all of the other evidence. It is not sufficient by itself to prove that the defendant is guilty of the charged sexual offenses. [¶]... The People must still prove each element of every charge beyond a reasonable doubt ” These instructions restricting the jury’s consideration of the evidence, we conclude, protected defendant against any undue prejudice.
Thus, under these circumstances, we believe the prejudice presented by the evidence of defendant’s prior sexual offense in Milpitas was not undue, but was merely the type inherent in all propensity evidence. (See People v. Soto, supra, 64 Cal.App.4th at p. 992; cf. People v. Harris (1998) 60 Cal.App.4th 727, 737 [“[p]ainting a person faithfully is not, of itself, unfair”].) The Legislature enacted section 1108 with an understanding of this inherent prejudice, yet specifically found such prejudice insufficient without more to render propensity evidence inadmissible. (See People v. Soto, supra, 64 Cal.App.4th at p. 992.) We decline to second-guess the Legislature’s decision in this regard. Accordingly, we affirm the trial court’s admission of the evidence relating to the uncharged Milpitas as within the proper scope of its discretion.
II. Instruction on an Uncharged Offense (CALCRIM 1191).
In a related argument, defendant contends that CALCRIM 1191, the jury instruction that follows section 1108 and was given to the jury in this case, is likewise facially unconstitutional under federal law. As with the constitutionality of section 1108, however, the California Supreme Court has already addressed – and rejected – this argument.
Specifically, in People v. Reliford (2003) 29 Cal.4th 1007, the California Supreme Court found “no constitutional error” in the 1999 version of CALJIC 2.50.01, the predecessor to CALCRIM 1191. (People v. Reliford, supra, 29 Cal.4th at p. 1016; see also People v. Falsetta, supra, 21 Cal.4th at p. 917.) Here, the trial court instructed the jury on a version of CALCRIM 1191 that was in all significant respects the same as the version of CALJIC 2.50.01 approved by the California Supreme Court in People v. Reliford. “The version of CALJIC 2.50.01 considered in Reliford is similar in all material respects to CALCRIM 1191... in its explanation of the law on permissive inferences and the burden of proof.” (People v. Schnabel (2007) 150 Cal.App.4th 83, 87.)
In particular, we note that, in direct conflict with defendant’s arguments, the California Supreme Court held in People v. Reliford that permitting jurors based on CALCRIM 1191 to infer that the defendant has a disposition to commit sex crimes from evidence he has committed other sex offenses, and then to infer from this predisposition that he was “likely to commit and did commit the charged offense, ” is rational. (People v. Reliford, supra, 29 Cal.4th at pp. 1012-1013.) The court also rejected an argument similar to defendant’s that, “having found the uncharged sex offense true by a preponderance of the evidence, jurors would rely on ‘this alone’ to convict him of the charged offenses.” As the court explained, the jury was in fact told just the opposite – that they could not convict the defendant solely on evidence of the prior offense, but only if each element of the charged offense was proven beyond a reasonable doubt. (Id. at p. 1013.) “No reasonable juror would believe those requirements could be satisfied solely by proof of uncharged offenses.” (Id. at pp. 1013-1014.)
Accordingly, based on this applicable California Supreme Court authority, we reject defendant’s constitutional challenge to CALCRIM 1191.
III. Right to Confront Witnesses Regarding DNA Evidence.
Finally, defendant contends the trial court violated his Sixth Amendment right to confrontation by permitting the prosecution’s expert witness, Armand Tcheong, to testify regarding the laboratory notes and analyses of two nontestifying criminalists involved in the DNA testing in this case. In making this claim, defendant contends the trial court’s authority for admitting the evidence, People v. Geier (2007) 41 Cal.4th 555, does not survive a recent decision by the United States Supreme Court, Melendez-Diaz v. Massachusetts (2009) 129 S.Ct. 2527 (Melendez-Diaz).
In Melendez-Diaz, the United States Supreme Court held that, under the Sixth Amendment, the prosecution may not prove its case with ex parte out-of-court affidavits in the form of sworn certificates from state laboratory analysts stating that material seized by police from the defendant was cocaine. The court reasoned that the certificates were “testimonial statements” that implicated the defendant’s right to confrontation. (Melendez-Diaz, supra, 129 S.Ct. at pp. 2543-2544.) In reaching this decision, the court noted that the right to confrontation protected against both fraudulent and incompetent forensic analysts, and that “[l]ike expert witnesses generally, an analyst’s lack of proper training or deficiency in judgment may be disclosed in cross-examination.” (Melendez-Diaz, supra, 129 S.Ct. at p. 2537.) The court cautioned, however, “we do not hold, and it is not the case, that anyone whose testimony may be relevant in establishing the chain of custody, authenticity of the sample or accuracy of the testing device, must appear in person as part of the prosecution’s case.” (Id. at p. 2532, fn 1.)
Before Melendez-Diaz was decided, our State Supreme Court held in People v. Geier that a report of the results of DNA testing conducted by a nontestifying criminalist was properly admitted through the testimony of an expert not personally involved in the testing because the report did not qualify as an out-of-court testimonial statement for purposes of the Sixth Amendment. (People v. Geier, supra, 41 Cal.4th at pp. 596, 607.) The court noted that, among other things, the nontestifying criminalist’s report and notes were not made in order to incriminate the defendant, but rather “ ‘during a routine, non-adversarial process meant to ensure accurate analysis.’ ” (Id. at p. 602.)
The court acknowledged that, because law enforcement initially requested the DNA reports, it was reasonable to expect at the time the reports were prepared that they could later be used at a criminal trial. (People v. Geier, supra, 41 Cal.4th at p. 605.)
The issue of whether People v. Geier survives Melendez-Diaz is currently before the California Supreme Court. (E.g., People v. Rutterschmidt (2009) 176 Cal.App.4th 1047 [rev. granted Dec. 2, 2009] [S176213]; People v. Gutierrez (2009) 177 Cal.App.4th 654 [rev. granted Dec. 2, 2009] [S176620]; People v. Dungo (2009) 176 Cal.App.4th 1388 [rev. granted Dec. 2, 2009] [S176886].) This court remains bound by People v. Geier unless or until a higher court clearly overrules it. (See In re Jaime P. (2006) 40 Cal.4th 128, 136.)
In any event, regardless of the effect Melendez-Diaz ultimately has on the validity People v. Geier, we conclude based on the record before us that any error in admitting the challenged DNA evidence was harmless. (See People v. Geier, supra, 41 Cal.4th at p. 608 [“Confrontation Clause violations are subject to federal harmless-error analysis under Chapman v. California (1967) 386 U.S. 18, 24 [17 L.Ed.2d 705, 87 S.Ct. 824]”].) Under the harmless error analysis, defendant is not entitled to reversal on Sixth Amendment grounds if it is clear beyond a reasonable doubt that a reasonable jury would have found him guilty even without the error. (People v. Geier, supra, 41 Cal.4th at p. 608.) In this case, a reasonable jury could indeed have made this finding.
Just this month, the United States Supreme Court decided Bullcoming v. New Mexico, 2011 U.S. LEXIS 4790 (Jun. 23, 2011). In this decision, the highest court held that admission of a forensic laboratory report certifying that the defendant’s blood-alcohol level exceeded the threshold for aggravated DWI violated his right of confrontation where a substitute analyst rather than the analyst who prepared and certified the report testified regarding the report’s validity. Whether People v. Geier survives this United States Supreme Court decision likewise remains to be determined. In any event, because in this case we conclude any error in admitting the DNA evidence was harmless, the Bullcoming v. New Mexico decision does not impact our final outcome.
As set forth above, defendant admitted being at the scene of both the Maria A. and Cindy T. incidents and having his penis exposed (albeit, he claims, for innocent reasons). In addition, both Maria A. and Julie S. identified him in a police lineup or showup, and Cindy T. and Julie S. both identified his car. Even more significant, each of the victim’s descriptions of his behavior – exposing his penis and masturbating in public in the outer west part of San Francisco – is remarkably consistent in all important respects.
Nonetheless, despite this record, defendant claims that “[w]ithout the DNA evidence, there was nothing to link appellant to the uncharged incident.” But defendant’s own admission belies such a claim. Indeed, he not only admitted being present at the scene of the uncharged Milpitas incident, he admitted masturbating in front of the victim and ejaculating outside her car, thereby impliedly admitting the semen found at the scene could be his. Further, with respect to defendant’s related claim that his defense that he was merely urinating in front of victim Maria A. “was much less believable in the face of DNA evidence showing that he had masturbated in front of other women, ” we simply note his own admission of masturbating in front of another female victim undermines this defense, aside from any DNA evidence.
Thus, in light of the strong evidence supporting defendant’s conviction for the charged offenses, we conclude the judgment must be affirmed whether or not the DNA evidence relating to the uncharged offense qualified as testimonial for purposes of the Sixth Amendment.
DISPOSITION
The judgment is affirmed.
We concur: McGuiness, P. J., Siggins, J.