Opinion
B293489
03-02-2020
THE PEOPLE, Plaintiff and Respondent, v. EUGENE ANDREW MILTON, Defendant and Appellant.
Sarah M. Javaheri, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Noah P. Hill and Stephanie C. Santoro, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. BA460685) APPEAL from a judgment of the Superior Court of Los Angeles County, Renee F. Korn, Judge. Affirmed. Sarah M. Javaheri, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Noah P. Hill and Stephanie C. Santoro, Deputy Attorneys General, for Plaintiff and Respondent.
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INTRODUCTION
On the morning of April 13, 2017, before dawn, someone broke into Mohammed Haq's apartment, physically attacked him, and stole his family's laptop computer. Some hours later, Haq realized the robber had left a flashlight on the living room table. Haq gave the flashlight to his building manager, who, three days later, gave both the flashlight and apartment surveillance video from the time of the robbery to Los Angeles Police Department (LAPD) officers. Forensic analysis found DNA on the flashlight matching that of defendant Eugene Andrew Milton.
LAPD officers then interviewed Milton, who told them he did not remember the robbery, but that the suspect on the surveillance video walking towards Haq's door at the time of the robbery looked like him when he was "drugged out." Milton also told the officers that leading up to the day of the robbery, he was using methamphetamine and was staying about two blocks from Haq's residence.
At trial, the People introduced evidence regarding the flashlight, and LAPD Criminalist Kari Mar testified as to the DNA test results linking the flashlight to Milton. Mar did not handle the entire forensic DNA process herself, but rather conducted her evaluation once DNA profiles had been generated by other LAPD analysts. Milton's counsel did not object to Mar's testimony. The jury found Milton guilty of first degree robbery.
On appeal, Milton claims that there was insufficient evidence on which to convict him and that Mar's testimony and any evidence of the flashlight should have been excluded. For the reasons set forth below, we find his arguments are either forfeited or unavailing, and, accordingly, we affirm.
BACKGROUND
A. The Robbery
In the early morning of April 13, 2017, as Haq and his two children were asleep in their one-bedroom apartment, someone broke in. The apartment was on the ground floor of a building in Hollywood, and had two entrances—a front door and a sliding door that led to a balcony. Both doors led straight to the living room, and both were locked on April 13.
At 4:00 a.m., Haq's daughter woke him up and told him there was a man standing by the sliding door in the living room. Haq opened his eyes and saw the man from his bedroom through a reflection in a mirror that stood in front of his bed.
Haq jumped out of bed and went into the living room. Though it was dark, he was able to make out a man standing by the sliding door. Haq believed the man was either "White" or "Mexican," between 35 and 40 years old, and wearing light-colored jeans and either a green or blue long-sleeved jacket with a hood over his head. The man was carrying what Haq believed was a white plastic bag in his left hand.
Haq asked the man what he was doing in the apartment and what he wanted. The man did not respond, but instead attacked—punching Haq in the face multiple times, knocking Haq down, and breaking two of Haq's teeth. As Haq laid on the ground, he felt like his head was spinning. Every time he tried to get up, he would fall back down. By the time Haq regained consciousness, the intruder was gone.
Haq had to go to work in the morning. Before leaving for work, he noticed the sliding door's lock, which was not broken when he had gone to bed the night before, was now broken. When Haq returned to the apartment that afternoon, his daughter told him her laptop, which had been sitting on a table in the living room, was missing. In place of the laptop, his daughter said, there was a small flashlight on the living room table. The flashlight did not belong to the Haqs.
That afternoon, Haq reported the robbery to the building manager. Haq gave the manager the flashlight (which he and his daughter both touched with their bare hands) and the stolen laptop's charger (which had been left behind). Haq also alerted the manager of the broken lock on the sliding door. Haq's daughter then called the police to report the robbery.
B. The Police Investigation
LAPD officers arrived at the Haqs' residence to investigate the robbery at about 11:30 p.m. that night. Haq told the officers he gave the flashlight found on the living room table to the building manager.
Three days later, on April 17, 2017, Detective Zackery Wechsler and Officer Catherine Banting met with the building manager to recover the flashlight and laptop charger, and to obtain a copy of the building's surveillance video from the time of the robbery. Haq was not home at the time, so Detective Wechsler and Officer Banting met only with the building manager.
1. Surveillance Video
Detective Wechsler testified that one of the apartment building's surveillance cameras was located about 15 feet away from Haq's balcony. The surveillance video caught on that camera showed an individual walking towards the sliding door on Haq's balcony at 3:58 a.m. on April 13, 2017. About a minute later, an arm appeared, like someone jumping down from the balcony, and the video then showed what looked to be the same individual running towards the street.
The surveillance video's time stamp actually read 2:58 a.m., but Detective Wechsler testified that when he checked the camera's time stamp, it was an hour behind.
The individual never looked directly at the camera, but the video did capture the person's profile. From that profile, Detective Weschler determined the individual was male. As he walked towards Haq's door, the man was holding a cigarette in his right hand and what appeared to be a red bag in his left hand. He was wearing all black but had some gray clothing draping over his shoulders.
Detective Weschler noted that older surveillance cameras, such as the one at Haq's apartment building, capture colors differently than the human eye.
2. Flashlight and DNA Evidence
During their meeting on April 17, 2017, the building manager gave Detective Wechsler and Officer Banting the flashlight and laptop charger in a closed white plastic bag, which he pulled out from a locked drawer in his office. The officers took the closed bag directly to the police station, where they packaged both items and booked them into evidence. Detective Wechsler requested that the flashlight be tested for DNA evidence.
On April 18, 2017, LAPD officers went back to Haq's residence and took buccal swabs of both Haq and his daughter, since they both had touched the flashlight.
On July 5, 2017, Detective Wechsler received a notification that the DNA sample from the flashlight resulted in a match with a DNA profile in the Combined DNA Information System (CODIS), which is a national DNA database maintained by law enforcement. The match was with the DNA profile of Milton.
3. Milton's Physical Similarities to the Suspect in the Surveillance Video
After receiving the news that the DNA found on the flashlight matched Milton's DNA, Detective Wechsler obtained photographs of Milton as well as his address. Detective Wechsler immediately noticed a strong resemblance between Milton and the suspect in the surveillance video. Milton and the suspect were of similar height and had similar skin tone, hair color, and hair texture. Both Milton and the suspect had an unusual ear shape—large, elongated earlobes with a flat top part of the ear—and a very pointed nose with a defined bump in the center.
One of the photographs Detective Wechsler found of Milton showed that Milton had a tattoo on his right upper arm, right above his elbow. However, when Detective Wechsler tried to zoom in to images from the surveillance video to look for the tattoo, the shadows were too dark and the image became too pixelated to make out whether the suspect in the video had a tattoo on his right arm.
Detective Wechsler also noticed Milton's address was less than a mile from Haq's residence—five to six short blocks away.
4. Milton's Police Interview
On July 18, 2017, Detective Wechsler and Officer Banting interviewed Milton. As soon as Detective Wechsler met Milton, he noticed Milton was of a similar build as the suspect in the surveillance video. Milton and the suspect also had a similar distinct posture and gait—they both stood with their heads forward and their shoulders up, creating a crease on the back of their necks and a protrusion of their upper spine.
After reading Milton his Miranda rights, Detective Wechsler asked Milton about the robbery on April 13, 2017. Milton said that he did not remember that evening. Detective Wechsler told Milton the residence where the robbery had taken place had surveillance cameras, and showed him four stills of the suspect from the surveillance video. When Milton looked at the stills, he said, "Yeah, that looks like me drugged out."
Detective Wechsler then told Milton his DNA was on a flashlight left inside the victim's residence that night. Milton again said he did not remember. Milton told the officers he had been using methamphetamine for approximately one year prior to April 13, 2017, and that when he uses methamphetamine, he does not remember a lot of things he does. Furthermore, Milton said when he uses methamphetamine, he stays in a tent alongside the 101 Freeway in Hollywood so his family does not see him high, and wanders the streets at night. The location along the 101 Freeway where Milton said he stays was about a block or two from Haq's residence.
That same day, Detective Wechsler showed Haq a six-pack of photographs, which included a photograph of Milton. Haq did not identify Milton or recognize any of the photographs.
In his testimony at trial, Haq said he circled a photograph when the police showed him the six-pack. According to Detective Wechsler, as well as Haq's testimony at the preliminary hearing, Haq told the officers when he was shown the six-pack that he did not remember the robber's face and that the robber's face had been covered.
5. Milton's Arrest
Milton was arrested for the underlying robbery on September 6, 2017. The police were not authorized to search Milton's residence during the arrest, and did not recover Haq's laptop.
Following his arrest, Officer Banting took Milton's buccal swab sample.
C. Expert DNA Testimony at Trial
LAPD Criminalist Kari Mar began her trial testimony by describing how LAPD's DNA Serology Unit analyzes DNA samples collected at crime scenes, how DNA profiles are generated, and how statistical analyses are performed on DNA profiles to determine how rare a particular DNA profile is. She testified that the analyses are done by determining, and then comparing, the DNA type at 15 different locations along a DNA strand. After a DNA report is generated, it undergoes two sets of reviews—a technical review and an administrative review—to make sure the report was performed using the correct protocols and that there were no errors in the analysis or interpretation.
Mar then testified that, in this case, she did not personally conduct the laboratory procedures to create the DNA profiles, but rather was given the DNA profiles generated at the laboratory and tasked with interpreting them. Initially, she was just given the DNA profile gathered from the flashlight, as well as the DNA reference profiles from Haq and Haq's daughter.
Mar testified that from the DNA profile generated from the flashlight, she determined there were three contributors—meaning there was DNA from three different individuals on the flashlight. However, one contributor contributed more DNA than the other two, and, thus, the flashlight had only one "major" contributor. Mar was able to produce a profile for 14 of the 15 locations of that major contributor's DNA, and from that profile, she determined the DNA came from a male.
Mar compared the major profile to the reference samples from Haq and his daughter, but it was not consistent with either's DNA. She thus concluded the major DNA profile from the flashlight came from an unknown male, and uploaded that profile into CODIS to see if it matched any DNA profiles in the system. The CODIS inquiry came back affirmative—the major DNA profile from the flashlight matched Milton's DNA profile.
After Milton's arrest, during which Officer Banting took a buccal swab sample from Milton, Mar was given Milton's DNA reference sample, which she compared to the flashlight's major profile. She determined the major profile obtained from the flashlight was consistent with the DNA profile obtained from Milton. Of the 14 DNA locations generated from the major profile, Milton's DNA matched all 14. Mar testified that the major DNA profile from the flashlight would occur in approximately one in one hundred quadrillion individuals.
The first time the test was conducted, there was an error made with regard to one of the control wells. That error was documented. The results from that test were thrown out, and the entire test was re-done. Accordingly, Mar testified that mistake had no impact on the DNA analysis.
D. The Jury's Verdict and Milton's Subsequent Sentence
The jury found Milton guilty of first degree residential robbery in violation of Penal Code section 211. The court subsequently found him to be in violation of a previous probation sentence and revoked probation. Milton waived his right to a jury trial on his prior convictions, and, at a bench trial, admitted to a prior conviction.
On October 15, 2018, the court sentenced Milton to the low term of six years plus an additional five years pursuant to section 667, subdivision (a), of the Penal Code, for a total of 11 years in state prison. Milton timely appealed.
On November 2, 2018, the court recalled the sentence in light of new legislation giving the court discretion to strike enhancements under Penal Code section 667, subdivision (a), for prior convictions. The court noted that it now had the discretion to strike the prior conviction, but did not find it appropriate to exercise that discretion to reduce Milton's sentence given the gravity of his crime.
DISCUSSION
A. Standard of Review
Milton claims there was insufficient evidence for the jury to convict him of first degree robbery. " 'In assessing a claim of insufficiency of evidence, the reviewing court's task is to review the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence—that is, evidence that is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.' " (People v. Story (2009) 45 Cal.4th 1282, 1296.) " ' " ' " 'If the circumstances reasonably justify the trier of fact's findings, the opinion of the reviewing court that the circumstances might also reasonably be reconciled with a contrary finding does not warrant a reversal of the judgment.' " ' " ' " (Ibid.)
Milton also asserts Mar's testimony regarding DNA work by other analysts, as well as any evidence of the flashlight, should have been excluded. We review the trial court's evidentiary rulings for abuse of discretion. (People v. Thompson (2010) 49 Cal.4th 79, 128; People v. Catlin (2001) 26 Cal.4th 81, 134.) We will not reverse a judgment of conviction for errors in the admission of evidence unless the defendant made a timely objection on specific grounds, and "the error or errors complained of resulted in a miscarriage of justice." (Evid. Code, § 353.)
B. Sufficiency of the Evidence
Milton contends there was insufficient evidence demonstrating he was the person who committed the robbery. Our review of a jury's decision is deferential, and " '[w]e presume " 'in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.' [Citation.] This standard applies whether direct or circumstantial evidence is involved." ' [Citation.]" (People v. Thompson, supra, 49 Cal.4th at p. 113.) "[A]n appellate court may not substitute its judgment for that of the jury. If the circumstances reasonably justify the jury's findings, the reviewing court may not reverse the judgment merely because it believes that the circumstances might also support a contrary finding." (People v. Ceja (1993) 4 Cal.4th 1134, 1139.)
The People's evidence in support of Milton's conviction included: the flashlight the robber left in Haq's apartment; the DNA found on that flashlight; the CODIS hit matching the flashlight's DNA's major profile to Milton's DNA profile; the subsequent DNA testing confirming Milton was the major contributor to the DNA on the flashlight; the surveillance video footage that showed someone who the officers testified had the same distinctive nose, ears, and gait as Milton, as well as the same hair, height, and skin tone, walking towards Haq's apartment around 4 a.m. on April 13, 2017 (the exact time the robbery took place); Milton's admission to police that the man in the video looked like him when he was "drugged out"; Milton's admission that he was living about two blocks from Haq's residence at the time of the robbery; and Milton's admission that he was using methamphetamine during the time of the robbery and thus cannot remember much from that period, but that he normally wanders the streets at night when he is high.
Milton stresses two gaps in this evidence, claiming "there was simply no evidence presented that the flashlight found in the Haq[s'] apartment was the same flashlight taken by the police officer" from the building manager, and that certain underlying DNA testing records were never admitted into evidence. Neither argument is persuasive, because both ignore our obligation to presume the existence of every fact the trier could reasonably deduce from the evidence. (People v. Thompson, supra, 49 Cal.4th at p. 113.)
While the building manager did not testify, it was reasonable to deduce based on the sequence of events that the flashlight that was tested for DNA, and introduced at trial, was the flashlight left at the scene of the robbery. Haq testified that his daughter found the flashlight in their apartment a few hours after the robbery had taken place, on the same table where the stolen laptop had been. The same day, Haq gave the flashlight and the laptop charger to the building manager and told the police he had done so. The building manager put the items in a plastic bag in a locked drawer. He unlocked the drawer in front of the officers and handed them the items in the closed plastic bag. The officers then took the closed bag straight to the police station and booked the flashlight and the laptop charger into evidence. From that point on, LAPD maintained the customary chain of custody records. In short, there was substantial evidence from which the jury could infer the flashlight surrendered to police was the same flashlight left by the robber.
Nor is the evidence insufficient because the People did not introduce certain lab or other reports regarding DNA testing during Mar's testimony. Presuming in favor of the judgment the existence of every fact the trier could reasonably deduce from the evidence, Mar's testimony sufficiently explained why DNA collected from the flashlight matched Milton's DNA. That testimony was therefore substantial evidence in support of the verdict regardless of whether certain reports undergirding Mar's analysis were or were not also presented to the jury.
C. Alleged Evidentiary Errors
Milton alternatively argues that Mar's testimony regarding the DNA results and evidence of the flashlight should not have been admitted. In Milton's view, without those two pieces of evidence there would have been insufficient evidence on which to convict him. Because his trial counsel did not raise the objections Milton now presses on appeal, Milton further claims he received ineffective assistance of counsel.
1. DNA Evidence
(a) Milton Has Forfeited His Argument That Mar's Testimony Should Have Been Excluded
Relying on People v. Sanchez (2016) 63 Cal.4th 665, Milton argues Mar impermissibly relayed inadmissible hearsay to the jury. Milton concedes, however, that he did not make any such objection at trial. We accordingly find any such objection to Mar's testimony forfeited.
"A verdict or finding shall not be set aside, nor shall the judgment or decision based thereon be reversed, by reason of the erroneous admission of evidence unless[ ¶] . . . [t]here appears of record an objection to or a motion to exclude or to strike the evidence that was timely made . . . ." (Evid. Code, § 353, subd. (a).) "The objection requirement is necessary in criminal cases because a 'contrary rule would deprive the People of the opportunity to cure the defect at trial and would "permit the defendant to gamble on an acquittal at his trial secure in the knowledge that a conviction would be reversed on appeal." ' [Citation.]" (People v. Partida (2005) 37 Cal.4th 428, 434.) An objection also " 'allows the trial judge to consider excluding the evidence or limiting its admission to avoid possible prejudice' " and " 'allows the proponent of the evidence to lay additional foundation, modify the offer of proof, or take other steps designed to minimize the prospect of reversal.' " (Ibid.)
While the People and Milton vigorously dispute whether Mar in fact relayed inadmissible hearsay to the jury, we need not resolve that disagreement. Had Milton objected to Mar's testimony, to the extent the objection had merit the People could have sought to introduce the test results themselves into evidence, or could have called additional witnesses involved in the DNA testing, both of which Milton concedes would have cured any alleged defect in the presentation of the DNA results.
Milton also argues that Mar's testimony regarding case-specific DNA reports prepared by others was testimonial in nature and thus violated the Sixth Amendment's confrontation clause. Because Milton did not object to Mar's testimony on this ground, he likewise has forfeited this claim. (Evid. Code, § 353; People v. Redd (2010) 48 Cal.4th 691, 730 [defendant forfeits confrontation clause claim by failing to raise objection on that ground before trial court].)
(b) Defense Counsel's Failure to Object Does Not Amount to Ineffective Assistance of Counsel
Milton asserts that his trial counsel's failure to object to Mar's testimony violated his right to effective assistance of counsel. "To prevail on this claim, appellant 'bears the burden of showing by a preponderance of the evidence that (1) counsel's performance was deficient because it fell below an objective standard of reasonableness under prevailing professional norms, and (2) counsel's deficiencies resulted in prejudice.' [Citation.]" (People v. Yates (2018) 25 Cal.App.5th 474, 487-488; see Strickland v. Washington (1984) 466 U.S. 668, 694-695 [104 S.Ct. 2052, 80 L.Ed.2d 674]; People v. Ledesma (1987) 43 Cal.3d 171, 215-218.) Counsel's deficiencies resulted in prejudice if there is a reasonable probability the trial's result would have been more favorable had counsel acted differently. (Strickland, supra, at pp. 694-695.) " 'It is not enough for the defendant to show that the errors had some conceivable effect on the outcome of the proceeding. . . . The defendant must show that there is a reasonable probability that, but for the counsel's unprofessional errors, the result of the proceeding would have been different.' " (Ledesma, supra, at pp. 217-218.)
Milton argues there was no logical reason trial counsel failed to object to Mar's testimony regarding case-specific hearsay, and that, but for that error, there is a reasonable probability that the result would have been more favorable to Milton. We disagree. This is not a case where, if Milton's counsel had objected to the DNA evidence, the evidence may have been excluded and the jury might have never heard it. (Compare People v. Yates, supra, 25 Cal.App.5th at p. 488 [ineffective assistance of counsel warranted reversal where counsel failed to object to expert's testimony on case-specific facts that were drawn from defendant's criminal, juvenile, and state hospital records, none of which were admitted into evidence and some of which would not have been admitted even if prosecutor had tried].) Instead, if trial counsel had objected to Mar's testimony regarding the results of the DNA tests, the People could have either (1) demonstrated the complained-of case-specific information was otherwise admissible under a hearsay exception, or (2) called the analysts who performed the laboratory tests to testify.
Nothing suggests such additional foundational evidence was unavailable, inadmissible, or not credible. Defense counsel accordingly made a reasonable strategic decision not to raise these objections, which if sustained would have permitted the People to make their presentation of DNA evidence even more robust and convincing. Because he fails to show the forensic DNA testimony would have been entirely excluded or meaningfully impeached, Milton also has not demonstrated any prejudice from the failure to make these additional objections to Mar's testimony.
2. Flashlight Evidence
Milton argues all evidence related to the flashlight should have been excluded because the building manager did not testify at trial, leaving a "glaring gap" in the flashlight's chain of custody. More specifically, Milton contends that without the manager's testimony, the unexplained three-day gap in the chain of custody during which the manager had the flashlight created a sufficient possibility that the evidence was tampered with and thus unreliable.
Defense counsel did not object to the introduction of the flashlight itself into evidence. Counsel did, however, object to certain testimony regarding the flashlight's chain of custody. Specifically, counsel objected on foundation and speculation grounds to Haq's statement that the police picked up the flashlight he had given the building manager. The court sustained the objection, and ordered that statement stricken. Counsel also objected on foundation and hearsay grounds to Officer Banting's testimony that the building manager provided her with items that Haq had provided to the manager. Both those objections were overruled.
Milton asserts that his counsel's failure to object to the admission of the flashlight amounts to ineffective assistance of counsel. However, "[c]ounsel does not render ineffective assistance by failing to make motions or objections that counsel reasonably determines would be futile." (People v. Price (1991) 1 Cal.4th 324, 387.) Here, it was reasonable for counsel to decide a request to exclude the flashlight based on gaps in the chain of custody would be futile and/or counterproductive.
"In a chain of custody claim, ' "[t]he burden on the party offering the evidence is to show to the satisfaction of the trial court that, taking all the circumstances into account including the ease or difficulty with which the particular evidence could have been altered, it is reasonably certain that there was no alteration. [¶] The requirement of reasonable certainty is not met when some vital link in the chain of possession is not accounted for, because then it is as likely as not that the evidence analyzed was not the evidence originally received. Left to such speculation the court must exclude the evidence. [Citations.] Conversely, when it is the barest speculation that there was tampering, it is proper to admit the evidence and let what doubt remains go to its weight." [Citations.]' [Citations.]" (People v. Catlin, supra, 26 Cal.4th at p. 134.)
We disagree that absent testimony from the building manager, there is " ' "some vital link in the chain of possession" ' " missing that makes it as likely as not the flashlight given to police was not the flashlight from Haq's apartment. (People v. Catlin, supra, 26 Cal.4th at p. 134.) Nothing other than the barest speculation suggests the manager replaced the flashlight Haq had given him with another flashlight, or permitted someone to tamper with it. In fact, the evidence showed the building manager was conscientious to make sure the evidence was not tampered with. The officers testified the manager had put the flashlight and laptop charger in a plastic bag and had put that plastic bag in a locked drawer in his office, which he only unlocked once the officers were in his office to pick it up.
Accordingly, the People met their burden of showing it was reasonably certain there was no alteration or vital break in the chain of custody. Any objection seeking to exclude the flashlight based on the lack of testimony from the building manager therefore would have been futile, and counsel did not render ineffective assistance by failing to make a futile objection. (People v. Price, supra, 1 Cal.4th at p. 387.) We also note defense counsel made a reasonable strategic decision not to seek to force the building manager to testify through objections to the chain of custody. Milton made no proffer that the building manager would testify he tampered with the flashlight or let others access it, and thus any testimony from the building manager would likely have made the prosecution's case stronger and limited the arguments Milton could make about what may have happened with regard to the flashlight during that three-day period the building manager possessed it.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED
Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. --------
ROTHSCHILD, P. J.
CHANEY, J.