Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Tulare CountySuper. Ct. No. VCF139232, Patrick J. O’Hara, Judge.
Cara DeVito, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Senior Assistant Attorney General, Carlos A. Martinez and Wanda Hill Rouzan, Deputy Attorneys General, for Plaintiff and Respondent.
LEVY, J.
INTRODUCTION AND GENERAL FACTS
During the afternoon hours of January 25, 1998, appellant Ronnie Jess Murillo raped 17-year-old S.L., who was working alone at her mother’s law office. Appellant was convicted after jury trial of forcible rape. The court found true a prior strike, a prior serious felony and a prison prior. (Pen. Code, §§ 261, subd. (a)(2); 667, subd. (a)(1); 667.5, subd. (b); 1170, subd. (c)(1).) Appellant was sentenced to an aggregate term of 22 years’ imprisonment, calculated as the upper term of eight years for the rape, doubled because of the strike, plus consecutive terms of five years for the serious felony and one year for the prison prior.
Appellant did not challenge the sufficiency of the evidence supporting the conviction and we have not found any error requiring a prejudice analysis. Therefore, a detailed recitation of the factual circumstances of the rape is unnecessary.
Appellant contends that the prosecutor committed prejudicial misconduct during his closing argument. He also argues that People v. Black (2007) 41 Cal.4th 799 (Black II) was wrongly decided and that imposition of the upper term for the rape infringed his federal constitutional jury trial right. Neither argument is persuasive. We will affirm.
DISCUSSION
I. No prosecutorial misconduct occurred.
A. Facts
The People introduced evidence showing that after S.L. was raped, she was examined at a local hospital. In relevant part, four swabs were taken of S.L.’s vaginal area. One of the swabs contained sperm cells that were later determined to match appellant’s DNA profile.
To rebut this evidence, the defense focused on the possibility of a testing error during examination of the People’s witnesses. On cross-examination, criminalist Kenneth Penner testified about an incident where the Fresno Regional Laboratory switched the DNA profiles of two people.
The defense did not call any witnesses and rested on the state of the evidence.
During redirect examination, Penner testified that “one of the four vaginal swabs … and a portion of the remaining stain card” were preserved and provided to the defense for retesting in appellant’s case. Penner testified that the court order he received “indicates that the samples were to be transferred to the forensic analytical testing laboratory in Hayward.” That laboratory performs DNA testing and is not affiliated with law enforcement.
During defense counsel’s closing argument he focused on the possibility that there had been a testing error. For example, he argued, “But the real numbers you … should be looking at are what are the odds of a mistake? And how often does that happen? Does it seem inconceivable or not? How often do machines screw up?”
During the prosecutor’s rebuttal, he argued that no testing error occurred in this case. In relevant part, he argued:
“On top of that, in order to -- on top of not trying to hide errors, what else do we have? We have evidence that is left over specifically for retesting. Not only did the Richmond lab have leftover evidence where they stored their evidence, which they store forever as they testified to, but the DOJ lab still had vaginal swabs from the original SART kit which they stored in evidence for retesting purposes. You heard items from that kit [were] turned over for defense for retesting, and you better believe if that was tested and it came back different, you would be hearing it.”
Defense counsel objected on the ground of “[r]everse proof.” The objection was overruled.
B. The prosecutor’s rebuttal argument did not shift the burden of proof.
Appellant argues that the portion of the prosecutor’s rebuttal argument quoted above impermissibly shifted the burden of proof. We disagree.
A prosecutor’s misconduct violates the Fourteenth Amendment of the federal Constitution when it infects the trial with such unfairness that it makes the conviction a denial of due process. Prosecutorial conduct that does not violate the federal Constitution is still misconduct under California state law if it involves the use of deceptive or reprehensible methods to attempt to persuade either the trial court or the jury. (People v. Morales (2001) 25 Cal.4th 34, 44.)
A prosecutor is entitled to state its views concerning the state of the evidence and inferences that can be drawn from it. (People v. Morales, supra, 25 Cal.4th at p. 44.) The prosecutor may comment on the failure of the defense to introduce material evidence or call logical witnesses, excepting the defendant. (People v. Hughes (2002) 27 Cal.4th 287, 372.) In People v. Hovey (1988) 44 Cal.3d 543, our Supreme Court explained:
“As we have stated, ‘Griffin forbids either direct or indirect comment upon the failure of the defendant to take the witness stand. The rule, however, does not extend to comments on the state of the evidence or on the failure of the defense to introduce material evidence or to call logical witnesses. [Citation.]’ [Citation.]” (People v. Hovey, supra, 44 Cal.3d at p. 572.)
In this case, the challenged remarks by the prosecutor were a fair comment on the absence of evidence. The defense suggested in his closing argument that a mistake could have been made in the DNA testing. During the prosecutor’s rebuttal argument, he pointed out the facts that the defense had been provided with material for retesting and that it had not produced evidence of a different result than the one reached by the prosecutor’s expert. Logically, if the defense had discovered an error during the retesting, it would have introduced evidence demonstrating the error. We are not convinced by appellant’s assertion that it would have been illogical for the defense to produce evidence that its retesting produced a different result than the one reached by the prosecution’s expert. Such evidence, if available, would have been powerful and could have raised a reasonable doubt in the minds of the jurors.
Appellant’s contention that “there was no evidence that any defense retesting actually occurred [boldface omitted],” does not change our conclusion. The prosecutor elicited testimony that samples were provided to the defense for retesting at the Hayward Laboratory. If defense counsel wanted to prove that retesting had not occurred, this was an evidentiary matter within his control.
In sum, the prosecutor was entitled to argue in closing that there was no evidence demonstrating that a testing error occurred in this case. The challenged remarks did not shift the burden of proof or imply that the only way appellant could disprove the DNA evidence was by providing contrary results. The prosecutor’s rebuttal remarks were a fair comment on the absence of evidence and inferences that can be derived from this absence. No error occurred. (People v. Hughes, supra, 27 Cal.4th at pp. 372-373 [prosecutor’s remarks about the absence of defense evidence were proper].)
II. Imposition of the upper term did not infringe appellant’s jury trial right.
A. Facts
Appellant’s criminal history, as set forth in the probation report, is lengthy. In 1974, he was convicted of tampering with a vehicle. In 1977, he was convicted of driving under the influence of alcohol. In 1978, he was convicted of reckless driving. In 1985, he was convicted of being under the influence of a controlled substance. In 1986, he was convicted of first degree burglary and sentenced to four years’ imprisonment. In 1987, he was convicted of prowling and of petty theft with a prior theft; he was sentenced to four years’ imprisonment. In 1994, he was convicted of spousal injury to a spouse or cohabitant and of making criminal threats. In 1995, he was convicted of receiving stolen property and sentenced to four years’ imprisonment. He was convicted of indecent exposure in 1998. In 2001, he was convicted of driving under the influence of alcohol and resisting a public officer. He violated the conditions of his parole in 1989, 1990, 2000 and 2001.
The probation report lists numerous aggravating factors: (1) the crime involved great violence and threat of bodily harm to the victim; (2) the victim was particularly vulnerable; (3) the manner in which the crime was carried out indicates planning and sophistication; (4) appellant has engaged in violent conduct indicating that he is a serious danger to society; (5) appellant has several prior felony and misdemeanor convictions; and (6) appellant has several prior parole violations. No mitigating factors were listed.
During the sentencing hearing, the court set forth appellant’s prior criminal history. It stated that it was not going to consider the convictions giving rise to the strike and to the prior serious felony enhancement. The court relied on all the factors set forth in the probation report in selecting the upper term for the rape.
B. Appellant’s recidivism rendered him constitutionally eligible for imposition of the upper term.
Relying on Blakely v. California (2004) 542 U.S. 296 and Cunningham v. California (2007) 549 U.S. ___, appellant argues that imposition of the upper term for the rape infringed his federal constitutional jury trial right. We disagree.
It is established that defendants do not have a right to jury trial for a sentence that is based on the fact of a prior conviction. (Almendarez-Torres v. United States (1998) 523 U.S. 224, 243, 246.) In Black II, our Supreme Court recently determined that the recidivism exception includes “not only the fact that a prior conviction occurred, but also other related issues that may be determined by examining the records of the prior convictions.” (Black II, supra, 41 Cal.4th at p. 819.) The judge may determine whether a defendant has suffered prior convictions and whether they are numerous or of increasing seriousness. (Id. at pp. 819-820.) In making these determinations, the judge may rely on the probation report. (Id. at pp. 818-819, fn. 7.)
Black II also held that the presence of one valid aggravating factor, such as a defendant’s criminal history, established in a constitutional manner renders a defendant eligible for the upper term sentence and that “any additional factfinding engaged in by the trial court in selecting the appropriate sentence among the three available options does not violate the defendant’s right to jury trial.” (Black II, supra, 41 Cal.4th at p. 812.)
In this case, appellant’s recidivism rendered him constitutionally eligible for imposition of the upper term. Appellant’s criminal history can be established by examining the records of his numerous prior convictions. During the sentencing hearing, appellant did not challenge the accuracy of the court’s recitation of his criminal record. Also, the court found true a prior strike and a prior serious felony enhancement allegation. The court’s reliance on additional offense-based aggravating circumstances is not constitutionally significant. (Black II, supra, 41 Cal.4th at p. 813.)
Appellant argues that Black II was wrongly decided and that its understanding of the recidivism exception is overly broad. We are bound to follow the decisions of the California Supreme Court and reject this contention on that basis. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
DISPOSITION
The judgment is affirmed.
WE CONCUR: Vartabedian, Acting P.J., Cornell, J.