Opinion
A094419.
7-30-2003
THE PEOPLE, Plaintiff and Respondent, v. FAILAUTUSI MOEVAO, Defendant and Appellant.
Defendant appeals his jury convictions for second degree murder, torture with great bodily injury, and sexual penetration with a foreign object. He claims the trial court erred by admitting his confession, giving the incorrect voluntary manslaughter instruction and admitting DNA evidence. He also claims the prosecutor committed misconduct and that his counsel was ineffective. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Seth Woods was 20 years old and mentally slow. Muscular and heavyset, he stood just over five feet tall. He lived with his foster mother in San Francisco. On December 20, 1995, Woods spent the day with his sister at the Sunnydale housing project. At 10:45 p.m., Woods telephoned his foster mother and left for home.
At the edge of the project is an area where people congregate. Called the "gate," it is comprised of a fence atop a concrete embankment. The embankment, approximately 30 feet high, overlooks Velasco street, where Woods customarily caught the bus to return home. Instead of getting on the bus that night, Woods went to the gate. There he encountered 15-year-old Francis T., who knew Woods from the neighborhood; 11-year-old Faafoiuna T., known as Ina; Logovii I., who was approximately 15 years old; Sandy T., also a juvenile, and defendant, whose 16th birthday was the next day. The young men were drinking malt liquor. Woods appeared to have been drinking and accepted their offer of beer.
Shortly after Woods arrived, defendant and Ina left to go to the store. Woods and Logovii started fighting. Wrestling with each other, they fell through a hole in the cyclone fence and slid down the embankment to the street below. Logovii walked back up the hill, and Woods followed shortly thereafter. Neither appeared hurt. After defendant and Ina returned, Logovii attacked Woods again, hitting him and grabbing his jacket as both fell down the embankment a second time. Francis and the others ran to them. Francis, Sandy and Logovii told Woods to go home. When he did not comply, Logovii and Sandy hit him. When Woods stumbled, Logovii grabbed him from behind and dragged him down the street. Sandy struck Woods several times. Woods, flailing and swinging his arms, hit defendant who was standing nearby. Ina testified that at Sandys direction he searched through Woods pockets and Woods pants fell down during the process. Logovii released Woods, who fell to the ground and no longer fought back. Ina testified that defendant then kicked Woods in the head. Ina was impeached with his statement to the police in which he described defendants actions as "stomping." Francis testified that defendant kicked Woods two to four times, but denied that defendant stomped the victim. Francis was impeached with his statement to the police that defendant stomped Woods three or four times. Ina testified that he, Logovii and Sandy also hit and kicked Woods who was motionless. Francis pulled Sandy and Logovii off Woods and told the group to stop.
Ina testified under a grant to use immunity.
Ina testified that someone then picked up a thin foot-long stick. Sandy slapped Woods with the stick and then gave it to Ina. Ina jabbed Woods with the stick "in his butt." Ina testified that he could not remember if defendant touched the stick. Ina was impeached with his statement to the police stating that defendant put the stick in Woods anus and that he (Ina) never did so. Ina took Woods shoes and the group left.
Police later found Woods lying face down, his pants below his knees, bleeding from his face, ears and buttocks. Woods was transported to the hospital where tests showed him to be functionally brain dead. Woods blood alcohol level at the time of admission was around .22. There were abrasions on the side of his face and air in the tissue of his ear, suggesting repeated trauma. According to the examining physician, the injuries were consistent with having been repeatedly kicked or stomped on the left side of the head near the ear. The medical examiner opined that "diffuse axonal" or "shear" brain injury caused Woods death. He concluded that the injuries to Woods head were consistent with kicking or stomping and were the result of multiple blows. Additionally, Woods anus was lacerated. With no chance of renewed brain function, Woods life support system was withdrawn and he died two days later.
Defendant was arrested and gave a videotaped interview. Inspector James Bergstrom, who conducted the interview, later discovered that the audio portion failed to record. Bergstrom testified that defendant admitted stomping Woods in the head. Defendant also admitted putting a stick in Woods anus while saying, "This is for my birthday" and "This is for the Samoans." After discovering the audio failure, Inspector Bergstrom conducted another videotaped interview.
The second videotaped interview was played for the jury. Defendant admitted the following: He hit and kicked Woods at the bottom of the embankment. When Woods was striking out at the others, he accidentally hit defendant. After Woods was on the ground, defendant did most of the kicking. When asked to clarify whether he was kicking or stomping, defendant said, "No, Im stomping." During the course of the dragging, Woods pants fell down. Defendant picked up a piece of metal, put it in Woods anus and twisted it once. Defendant smoked marijuana on the night of the assault, but denied drinking.
Following his second interview, defendant was left alone in the interview room while the video recorder continued to run. Defendant made several phone calls during which he admitted kicking Woods in the head. He stated, "They had everything on me, somebody told everything." He also made a threat to "kill that motherfucker . . . that ratted on me." He compared himself to someone who killed and robbed and said, "All I did was just kill[] the man." In a telephone call to his mother, defendant said, "Thats all I did . . . kicked him . . . on his head," and "They said everything is on me, cause I did most of it."
Police seized the shoes defendant wore during the assault. They bore traces of blood which, based on genetic testing, were matched to Woods, who was an African American. The likelihood that another African-American male would have this same genetic profile was one in 264 million.
Defendant testified. On the day of the murder, he bought alcohol and spent the afternoon drinking and smoking marijuana at the Double Rock projects. Around 6 or 7:00 p.m., he purchased more liquor and continued to drink and smoke marijuana until 9 or 10 p.m. During this time he took three "dance" pills, which made him feel "kind of amped." Defendant and his cousin took a bus to the Sunnydale projects, where defendant bought a 40-ounce bottle of malt liquor and went to the gate. Francis, a school friend, was there, along with Sandy, Logovii and Ina, whom defendant knew less well. Defendant drank with the group for about 10 or 15 minutes. Defendants cousin left and the group walked with him to the bus stop. Afterwards, they bought more malt liquor and returned to the gate.
A short time later, defendant and Ina left to buy marijuana. Woods, whom defendant had never seen before, was there when defendant and Ina returned. Woods clothing was dirty and he had grass in his hair. He looked angry and was talking to Francis. Sandy told Ina that something had happened while defendant and Ina were gone. Logovii started arguing with Woods and tried to "jump on" him, but Francis pushed Logovii away. Logovii grabbed Woods shirt, threw him against the fence and punched him. Woods fell through an opening in the fence and down the embankment. Logovii, Sandy, Ina and Francis ran down after him. From the top of the embankment, defendant heard the others yelling at Woods to go home. Defendant then joined the group.
Logovii hit Woods. Woods swung in response and hit defendant. Woods blow left no mark. Defendant, not realizing Woods hit him accidentally, reacted by hitting Woods in the face. Defendant testified that Woods blow made him angry and afraid and that he did not know what Woods "was capable of doing," nor did he know why Woods and Logovii were fighting.
Logovii grabbed Woods and dragged him down the street while Sandy punched Woods in the face and Ina kicked him in the legs. Logovii released Woods and he fell to his knees. Defendant testified that at that point everyone except Francis attacked Woods. Defendant admitted that he stomped Woods three or four times in the head because he was angry. He knew that he was hurting Woods and that Woods could not defend himself. Defendant claimed that although he was angry with Woods, he did not intend to kill him.
Francis made defendant stop his assault. Then, however, defendant picked up a curved chrome stick. He hit Woods exposed buttocks, but denied putting the stick in Woods anus. He threw the stick away and ran from the area with Francis. Logovii, Sandy and Ina joined them about five or ten minutes later.
Defendant said he did not learn of Woods death until his arrest on December 30, 1995. He stated that in the first interview he told the officer that he hit Woods on the buttocks with the stick. However in the second interview, he went along with whatever the officer asked because he was tired of being questioned. In the telephone calls with his friends, he said he acted cocky because he did not want others to know that he was scared. His comment to his mother that "everything is on me cause I did most of it," was not an admission, but an explanation of the accusation against him.
The jury convicted defendant of second-degree murder, torture and sexual penetration with a foreign object. They found true the great bodily injury allegation attendant to torture, but not to sexual penetration. The court struck the great bodily injury finding and sentenced defendant to 15 years to life in state prison for second degree murder and imposed a consecutive sentence of six years for sexual penetration, for a total prison term of 21 years to life. Sentencing on the torture conviction was stayed pursuant to Penal Code section 654.
DISCUSSION
I. Probable Cause to Arrest
Defendant moved to suppress his confession as the product of an unlawful arrest. The trial court found the arrest was supported by probable cause. Defendant contends that ruling was erroneous because the arrest was based on the uncorroborated statements of two other suspects in the assault. We reject appellants contention.
Inspector Bergstrom testified that he viewed Woods body with the medical examiner. He saw that Woods face was misshapen and discolored and also noted injuries to Woods rectum. The medical examiner told Bergstrom that Woods died from blunt trauma to his head, likely caused by a stomping motion. Bergstrom, the chief inspector on the case, conveyed this information to Inspector Robert McMillan, who knew that Woods body had been found on Velasco Street in the Sunnydale Project area.
Based on information from a confidential source, McMillan contacted Sandy on December 29, 1995. Sandy, who was not under arrest, accompanied McMillan to the police department. Sandy admitted he, Ina, Francis, Logovii and defendant were present during the assault. Sandy said that Logovii fought with Woods and Woods rolled down a cement embankment onto Velasco Street. Sandy claimed he did not hit Woods. Defendant descended the embankment and punched Woods with his fists, then stomped him several times with each foot. Sandy identified defendant in a photo spread and was released.
On December 30, 1995, Logovii was detained. In an interview with Bergstrom, Logovii said that defendant, Sandy and Ina assaulted Woods, and that defendant stomped on Woods head several times. Logovii claimed he did not participate. He identified defendant from a photo spread and marked photographs of the scene of the assault, identifying the same locations that had been described by Sandy. Bergstrom had no information as to the reliability of either Logovii or Sandy.
Following Logoviis interview, McMillan, Bergstrom and two other officers went to the Double Rock projects looking for Ina and defendant. They detained Ina and were transporting him to the police station when they spotted defendant. Defendant was arrested without a warrant, waived his Miranda rights and gave a statement.
Miranda v. Arizona (1966) 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602.
In reviewing a ruling on a motion to suppress, we defer to the trial courts factual findings, express or implied, where supported by substantial evidence. We exercise our independent judgment in determining whether, on these facts, the arrest was reasonable under the Fourth Amendment. (People v. Weaver (2001) 26 Cal.4th 876, 924.) Applying this standard, we conclude that defendants arrest was based on probable cause.
"An arrest is valid if supported by probable cause. Probable cause to arrest exists if facts known to the arresting officer would lead a person of ordinary care and prudence to entertain an honest and strong suspicion that an individual is guilty of a crime. [Citation.]" (People v. Kraft (2000) 23 Cal.4th 978, 1037.) "No exact formula exists for determining reasonable cause, and each case must be decided on the facts and circumstances presented to the officers at the time they were required to act." (People v. Fein (1971) 4 Cal.3d 747, 752, 94 Cal. Rptr. 607, 484 P.2d 583, disapproved on other grounds in People v. Palaschak (1995) 9 Cal.4th 1236, 1241-1242, 893 P.2d 717.)
Defendant contends that at the time of his arrest, the only evidence implicating him were the statements of Sandy and Logovii, neither of whom was a reliable informant. He asserts that their statements were inherently untrustworthy since they contradicted each other regarding their participation in the assault and each minimized his own involvement. Defendant relies on People v. Campa (1984) 36 Cal.3d 870, 206 Cal. Rptr. 114, 686 P.2d 634, in which the court applied pre-Proposition 8 principles to the question of whether an arrest warrant was supported by probable cause. The Campa court relied on the two-prong test derived from Aguilar v. Texas (1964) 378 U.S. 108, 12 L. Ed. 2d 723, 84 S. Ct. 1509 and Spinelli v. United States (1969) 393 U.S. 410, 21 L. Ed. 2d 637, 89 S. Ct. 584 (Aguilar/Spinelli), requiring that an affidavit based on an informants hearsay demonstrate factually (1) that the informant spoke with personal knowledge of the matters described in the affidavit; and (2) that the informant was credible or his information was reliable. In Campa, supra, the warrant affidavit was based solely on the accusation of Martinez, another participant in a drive-by shooting, who named the defendant as the shooter. (36 Cal.3d at p. 877.) The Campa court concluded that the affidavit was insufficient to establish the informants credibility or reliability. The affidavit did not relate earlier police contacts with Martinez indicating a record of reliability nor was there any corroborative information from independent sources or police investigation implicating the defendant. (Id. at pp. 880-881.) The Campa court observed, "Information received from sources who are themselves the focus of pending criminal charges or investigations is inherently suspect." (Id. at p. 882.) However, the court noted: "This is not to say that in all such cases the statement of a coparticipant implicating a suspect in criminal activity should be disregarded in finding probable cause for issuance of a warrant. Admissions may be made under circumstances in which their credibility is enhanced." (Id. at p. 883.)
In Illinois v. Gates (1983) 462 U.S. 213, 76 L. Ed. 2d 527, 103 S. Ct. 2317, the United States Supreme Court rejected rigid adherence to the two-pronged Aguilar/Spinelli test, stating the two factors were merely "relevant considerations" in a totality of circumstances analysis. (Id. at p. 233; see also Massachusetts v. Upton (1984) 466 U.S. 727, 732, 80 L. Ed. 2d 721, 104 S. Ct. 2085.) Thus, the question to be resolved is whether the statements of Sandy and Logovii, considered in light of the totality of the circumstances, were sufficient to establish probable cause to arrest defendant. Even courts applying the stricter Aguilar/Spinelli test have concluded that "corroboration of an unreliable informants statements may be met by those of another, if they were interviewed independently, at a different time and place." (People v. Green (1981) 117 Cal. App. 3d 199, 205, 172 Cal. Rptr. 582; accord People v. Balassy (1973) 30 Cal. App. 3d 614, 621, 106 Cal. Rptr. 461.) Sandy and Logovii, co-participants in the assault, were detained and interviewed on separate days. While each described his own conduct differently, both were consistent about the general course of the assault and defendants conduct. Each stated that the assault began on a hillside above Velasco Street during which Woods was either knocked down or fell down a cement embankment to the street. Both stated that defendant stomped Woods at the base of the embankment. The fact that Sandy and Logovii were co-participants who minimized their own culpability is merely a factor to be considered in the totality of the circumstances.
Additionally, information by Sandy and Logovii that defendant had stomped on Woods was consistent with the injuries observed by Bergstrom and the medical examiners opinion as to how the injuries likely occurred. The trial court did not err in finding that probable cause supported the arrest. The statements of Sandy and Logovii, obtained separately on different dates, and corroborated by Bergstroms independent knowledge of the victims injuries were sufficient to allow a person of ordinary care and prudence to strongly suspect defendant had committed a crime.
II. Instructional Error
Defendant contends that the trial court erred by instructing the jury that voluntary manslaughter requires an intent to kill, despite the California Supreme Courts decision to the contrary in People v. Lasko (2000) 23 Cal.4th 101, 999 P.2d 666. We agree that it was error not to instruct the jury in accordance with Lasko, but conclude the error was harmless.
The Lasko court held that one who kills in a sudden quarrel or heat of passion commits voluntary manslaughter, whether the killing is intentional or unintentional. In either case, the defendant is not guilty of murder because his malice has been negated by the sudden quarrel or heat of passion. (Lasko , supra, 23 Cal.4th at pp. 108-110.)
At the outset, we reject the Attorney Generals argument that defendant invited the instructional error. Defendant requested the outdated version of CALJIC 8.40, defining manslaughter as including an element of intent to kill. Defense counsel advised the court: ". . . I am assuming that we are applying the law as it was in . . . December 20th, 1995, and that is voluntary manslaughter requires a specific intent to kill." Counsel was mistaken. Lasko applies to cases tried after its publication and to then-pending appeals. Regardless of the date of the offense, it is error to instruct the jury that voluntary manslaughter requires intent to kill. In People v. Crowe (2001) 87 Cal.App.4th 86, the first published case to address the issue, the Second District Court of Appeal held that Lasko did not declare a new rule of law, but simply clarified an existing one, thus allowing Lasko to be applied in the case of a defendant whose appeal pre-dated the Supreme Courts decision. (Id. at p. 95.)
The Attorney General argues that because defendant specifically requested the erroneous former instruction, he invited the error and his claim should be rejected. We disagree. Defense counsels remarks quoted above occurred five months after the Supreme Courts decision in Lasko, but three months before Crowe was filed. For the doctrine of invited error to apply, it must be clear that counsel acted for tactical reasons and not out of ignorance or mistake. (People v. Bunyard (1988) 45 Cal.3d 1189, 1234, 249 Cal. Rptr. 71, 756 P.2d 795.) It appears from this record that counsel was mistaken in his belief that Lasko did not apply. We decline to find invited error.
Defendant acknowledges the Supreme Court reviewed this instructional error under a harmless error analysis. (Lasko, supra, 23 Cal.4th at p. 111.) The Lasko court deemed the error harmless because (1) the jury was instructed with CALJIC No. 8.50; (2) neither side emphasized voluntary manslaughter during closing argument; and (3) the evidence strongly suggested an intent to kill. (Id. at pp. 111-113.) There is nothing to indicate that the Lasko court intended these factors to be exclusive in determining harmless error. The rules of harmless error analysis call for a case-by-case review. (See People v. Breverman (1998) 19 Cal.4th 142, 178, fn. 25, 960 P.2d 1094.)
Nonetheless, defendant insists that the error has federal constitutional dimensions requiring application of the stricter Chapman standard. We apply the standard adopted by our Supreme Court.
The first Lasko factor is satisfied here. The court fully and correctly instructed on the elements of first and second degree murder, heat of passion, perfect and imperfect self defense. It clearly stressed the distinction between murder and manslaughter, noting that murder requires malice, either express or implied, while manslaughter does not. (CALJIC Nos. 8.00, 8.10, 8.11. 8.37, 8.40, 8.50.)
The jury was given CALJIC No. 8.50 which informed them that, "to establish that a killing is murder and not manslaughter, the burden is on the People to prove beyond a reasonable doubt each of the elements of murder and that the act which caused the death was not done in the heat of passion or upon a sudden quarrel . . . ." This instruction informed the jury that, regardless of whether the killing was intentional, the killing could not be murder if the prosecution did not disprove heat of passion or sudden quarrel. (Lasko, supra, 23 Cal.4th at p. 112.). By convicting defendant of murder, the jury necessarily found that defendant did not kill in the heat of passion or upon a sudden quarrel. Having made that finding, the jury could not have rendered a manslaughter verdict.
We agree with defendant that the evidence in this case supporting an intent to kill does not rise to the level of that in Lasko. However, the jury was instructed on involuntary manslaughter. Had the jury concluded the stomping was the result of heat of passion or a sudden quarrel, it could have convicted defendant of involuntary manslaughter. Defendant disagrees. He argues that the implied malice mental state is more culpable than the mere lack of "due caution and circumspection" required for involuntary manslaughter. (CALJIC No. 8.45.) Defendant misses the import of the Supreme Courts analysis of CALJIC No. 8.50: "Had the jury believed that defendant unintentionally killed Fitzpatrick in the heat of passion, it would have concluded that it could not convict defendant of murder (because he killed in the heat of passion) and could not convict defendant of voluntary manslaughter (because he lacked the intent to kill). The jury most likely would have convicted defendant of involuntary manslaughter . . . ." (Lasko, supra, 23 Cal.4th at p. 112.)
Based upon our review of the record, we conclude the murder verdict in this case is not attributable to instructional error, but to the weakness of the evidence on heat of passion. Heat of passion is equivalent to provocation, which must be caused by the victim. The conduct must be sufficiently provocative to cause an ordinary person of average disposition to act rashly or without due deliberation and reflection. (People v. Lee (1999) 20 Cal.4th 47, 59, 971 P.2d 1001.) "The test of adequate provocation is an objective one, however. The provocation must be such that an average, sober person would be so inflamed that he or she would lose reason and judgment." (Id. at p. 60.)
Considering the evidence in the light most favorable to the defendant with regard to the heat of passion defense, his own statements establish the following. Defendant was not involved or even present during the initial assault of Woods. After defendants arrival on the scene, Woods, trying to defend himself, swung and flailed his arms. While doing so he struck defendant who was standing nearby. The blow did not knock defendant off his feet, or leave any mark. Defendant reacted by hitting Woods. According to defendant, Logovii then grabbed Woods and dragged him a short distance before dropping him on the ground. Defendant approached and, knowing Woods was defenseless, stomped him on the head at least three or four times. Nothing in the evidence suggests that defendant acted in the heat of passion when he committed this act. The jury was instructed: "The heat of passion which will reduce a homicide to manslaughter must be such a passion as naturally would be aroused in the mind of an ordinarily reasonable person in the same circumstances." Accepting defendants explanation for his conduct, ample evidence supports the jurys finding that no ordinarily reasonable person would have been so inflamed by Woods flailing strike as to lose all reason and judgment.
Based on all these considerations, it is not reasonably probable that a jury instructed on voluntary manslaughter without the intent to kill element would have convicted defendant of that offense. The error in giving the jury the former version of CALJIC No. 8.40 was harmless.
III. Ineffectiveness of Counsel
Defendant contends that his trial counsel was ineffective for agreeing to the admission of a particular statement made by Logovii during his police interview. The contention fails.
Defendant correctly anticipated that Sandy and Logovii would invoke their rights against self-incrimination. As a result, defendant sought to introduce portions of their police interviews on the basis that such statements were against their penal interest. Defendant intended to rely on portions inculpating Sandy and Logovii in the assault on Woods, but not implicating defendant. Defense counsel argued that defendant may be "responsible for some things and not others," and the jury should determine the extent of his culpability.
Later, defense counsel and the prosecutor stipulated that certain portions of the statements could be read to the jury. At issue in this appeal is the following statement by Logovii describing his role in the assault, as related by Inspector McMillan: "I believe that he said he did have a part in the assault prior to the time that [defendant] had stomped him in the head, stomped Seth Woods in the head." Defendant argues that counsels decision to allow this statement, which inculpated defendant as well as Logovii, was "a serious lapse in judgment that lacked any possible strategic justification."
In order to establish a claim of ineffective assistance of counsel, a defendant must show that the attorneys representation was deficient, in that it fell below an objective standard of reasonableness, and that the defendant was prejudiced by counsels deficient performance. (Strickland v. Washington (1984) 466 U.S. 668, 687-688, 80 L. Ed. 2d 674, 104 S. Ct. 2052; People v. Ledesma (1987) 43 Cal.3d 171, 216-217, 233 Cal. Rptr. 404, 729 P.2d 839.) To establish prejudice, a defendant must show that, but for counsels error, the result of the proceeding would have been different. (In re Marquez (1992) 1 Cal.4th 584, 603, 822 P.2d 435.) When defendant does not establish prejudice, a claim of ineffective assistance fails, and we need not determine whether the complained of conduct was deficient. (Strickland v. Washington, supra, at p. 697.)
No prejudice resulted here. Defendant concedes that the success of his prejudice claim depends on a conclusion that his arrest was unlawful, rendering his confession inadmissible. We have upheld the finding that probable cause supported the arrest. The jury heard defendant, both in his videotaped confession and during his testimony, admit to stomping Woods. Hearing this evidence again through Logoviis statement would not have affected the jurys resolution of the murder and torture counts. Assuming any error by counsel, there is no likelihood defendant would have obtained a more favorable outcome.
IV. Prosecutorial Misconduct
Defendant contends that the prosecutor committed misconduct in closing argument. We disagree.
In his closing argument, defense counsel argued: "What happened to Seth Woods is never going to change. So the intent in which [defendant] acted is the whole case. And we can stand here and talk about how horrible the injuries were, etc. I am not denigrating that. I understand why thats important. Probably not in the context of this jury trial, but its important in a human sense, but thats never going to change. The issue is the intent." He argued further, "Now, I told you at the outset that this is a senseless thing. . . . There has [been nothing] proven to you as to why Seth Woods died that night, why he was killed, nothing." In discussing murder by torture, defense counsel argued: "Well, what is the sadistic purpose? . . . I mean someone who takes pleasure out of causing pain and suffering to another. There is no reference to that. There is not a shred of evidence that [defendant] enjoyed or was doing it for some type of personal vendetta. There is nothing to support that."
In rebuttal argument, the prosecutor responded: "[Defense counsel] at some point said you know, hes dead and the injuries arent relevant to this trial or to the issues. I beg to differ. Every wound you see there is evidence of intent, every single wound. And if you start at the last wound and what they did to Seth Woodss rectum, I ask if you have any question in your mind about whether or not they tried to inflict great pain on this man. They should have just killed him and put him out of his misery instead of torturing him like this, like an animal, like you wouldnt treat a dog. [P] And so I ask why? I said there was no good reason for this but there are human reasons, things you can understand because people are cruel and brutal sometimes. . . . Who hasnt heard of the story out of Texas of . . . dragging a man to his death? What is this about? They are just trying to kill a man when they do that or something more? . . . Who hasnt heard a story like in New York where they had someone in custody and they put a plunger up his rectum. Why? What is this in the human heart that allows this? And this is . . . what you have to wrestle with. This wasnt done just to kill this man, it was something more." The prosecutor continued, "And what are all those cases about? Someone doing something awful to a human being, unimaginable because they enjoy it in some way. . . . And thats what sadism is: enjoying in some sick way the suffering of a human being." He stated further: "People pick on people . . . because they are little, because they are black, because they are gay. They string a young man to a . . . fence in Wyoming and let him die in the cold of night because they want to hurt him" At that point defense counsel objected to the prosecutors remarks as improper argument and the court sustained the objection.
Although the prosecutor referred to three well-known cases, defendant objected only to the mention of the Wyoming murder. He did not object to the prosecutors reference to the dragging death in Texas and the assault by police officers in New York City. The contention that these latter two references were misconduct has been waived. (People v. Hill (1998) 17 Cal.4th 800, 820, 952 P.2d 673.)
Had the objections been preserved for appellate review, we would reject them. In People v. Jones (1997) 15 Cal.4th 119, 931 P.2d 960, reversed on other grounds in Hill, supra, 17 Cal.4th at page 823, footnote one, the prosecutor made references to Adolph Hitler, Charles Manson and "Sacramento Vampire Killer" Richard Chase to argue that a killer is not necessarily guilty by reason of insanity because a murder was committed for irrational reasons. (Jones, supra, 15 Cal.4th at p. 179.) The Supreme Court held that the prosecutors references to these notorious figures did not constitute misconduct. The court stated: " In general, prosecutors should refrain from comparing defendants to historic or fictional villains, especially where the comparisons are wholly inappropriate or unlinked to the evidence. [Citation.] [Citation.] In the present case, it was proper for the prosecutor to use these well-known examples of irrational murders to illustrate his point regarding the limits of the defense of insanity." (Id. at p. 180.)
Here, by referring to certain notorious crimes, the prosecutor was not comparing defendants conduct to the perpetrators of those offenses. Defendant was charged with murder and torture. Defense counsel argued that torture had not been proven because the prosecution did not show a sadistic purpose in the killing. Defense counsel also asserted that the senseless nature of defendants conduct offered no evidence of motive. In response, the prosecutor argued that it was precisely the killings senseless nature, done for no apparent reason other than to hurt and humiliate the victim, that rendered it sadistic. The prosecutor used the Texas, New York and Wyoming incidents to illustrate his point that people can be "cruel and brutal" and enjoy "in some sick way the suffering of a human being." In this context the prosecutors remarks were not improper. A prosecutors argument need not be stripped of legitimate emotional impact: "Many cases are sordid, mordant tales and their very description are librettos for threnodies of death and loss. To tell their story is to inevitably touch human emotions, because they are about human things: sad, terrible, alien human things. They cannot be left undescribed because they are terrible or alien to ordinary human standards of conduct. They are the issue in question and unless one transcends the evidential terms or deliberately calculates to do what the evidence does not support, they must be told and whatever human emotions they may awake are inescapable in the context of the truth of the occasion." (Com. v. Strong (Pa. 1989) 522 Pa. 445, 563 A.2d 479, 484.)
V. Admissibility of DNA Evidence
At trial, the prosecution presented evidence that DNA profiles from blood on defendants shoes matched a known sample of Woods DNA. Before trial, defendant challenged the admissibility of this evidence on the ground that the tests used to match the blood were unreliable and had not achieved general acceptance in the scientific community as required under People v. Kelly (1976) 17 Cal.3d 24, 130 Cal. Rptr. 144, 549 P.2d 1240. Following a lengthy hearing, the court denied defendants motion and admitted the evidence. Defendant claims the court abused its discretion in doing so.
The presence of the victims blood on defendants shoe tended to show that the defendants shoe contacted the victims head. The prosecutor never mentioned the DNA evidence in closing argument. Defense counsel mentioned the DNA evidence only once, noting that the amount of blood on defendants sneakers was very small. Defendant never disputed that he stomped the victims head. Identity was not an issue. Rather, defendant argued that his conduct amounted to manslaughter because he acted in the heat of passion and with the unreasonable belief in the need to defend himself. We need not discuss the DNA evidence further because of its negligible role in this case. In light of defendants admissions, even assuming arguendo DNA evidence should have been excluded, its admission was harmless under any standard of review.
VI. Cumulative Error
Finally, defendant contends that reversal is required due to the cumulative effects of the trial courts errors. Based on our review of the entire record, his contention fails. We identified one harmless error and assumed another only for purpose of argument. Defendant was entitled to a trial "in which his guilt or innocence was fairly adjudicated." (People v. Hill , supra, 17 Cal.4th at p. 844.) He received such a trial and reversal is not warranted.
DISPOSITION
The judgment is affirmed.
We concur: Parrilli, J., Pollak, J.