Opinion
NOT TO BE PUBLISHED
Solano County Super. Ct No. FCR208276
Haerle, J.
I. INTRODUCTION
Vincent Carl Ortiz was convicted by a jury of second degree murder (Pen. Code, § 187 ) and of personally using a deadly weapon, a knife, to commit his crime (§ 12022, subd. (b)(1)). Ortiz was sentenced to a term of sixteen years to life in state prison.
Undesignated statutory references are to the Penal Code.
On appeal, Ortiz contends the trial court committed reversible errors by admitting evidence relating to (1) testing and analysis of deoxyribonucleic acid (DNA) collected from the crime scene, and (2) an incriminating statement Ortiz made to the police. Ortiz also contends the lower court erred by denying him earned conduct credits and imposing unauthorized restitution and parole revocation fines. We will amend the judgment to award conduct credits and strike the restitution and parole revocation fines, but otherwise affirm the judgment.
II. STATEMENT OF FACTS
A. The Murder of Rosa Castenada
On December 8, 1982, Rosa Castenada was found dead in her ground floor apartment in Vacaville. The body was discovered by Rosa’s sister Mary, who went with other family members to Rosa’s home after they became concerned about her well being. Appellant Ortiz, who was Mary’s boyfriend at the time, was also present when Rosa’s body was found. Mary found her sister lying on the living room floor with a blanket covering her head and a knife in her neck.
An autopsy was performed by Doctor Richard Lucas. When Lucas first saw Rosa’s body, she was wearing a blue housecoat, a brassiere that had been pushed up over her breasts and a pair of panties. Lucas determined that Rosa “bled to death as a result of a knife wound to the left side of the neck, which penetrated all the way across, and severed the large vessels on both sides.” Rosa had a superficial abrasion on her left breast, with a small puncture wound below that and additional abrasions on the right side of her nose and on her left cheek. Lucas found no evidence of sexual trauma. Lucas clipped Rosa’s fingernails and gave the clippings to Vacaville Police Detective Donald Wallar, the primary investigator assigned to Rosa’s case.
B. The Investigation
Detective Wallar interviewed Rosa’s friends and family members, including Mary and Ortiz. However, he was unable to obtain a statement from Rosa’s four-year-old son, Rene.
Mary told Wallar that, on the evening of December 6, 1982, she and Ortiz were at the home of Mary’s sister Susie, who lived in Vacaville, a few miles away from Rosa’s apartment. At the time, Mary and Ortiz were living with Susie and her family. Mary reported that she, Ortiz and Susie were all home that night, that they went to sleep late and that Susie woke them at some point during the night and asked Ortiz to go outside and turn off the water that was running in the yard. Ortiz went out for only a few minutes and then came to the door with Rosa’s young son, Rene.
Ortiz told Waller that, while he was outside turning off the water, he heard a car door slam and went to the front gate. Ortiz saw a 1973 or 1979 orange Camero with four passengers drive away. Then he saw Rene standing in the driveway. Despite the cold, Rene was barefoot and wearing only his pajamas. Ortiz picked him up and asked how he had gotten there. Rene said he had walked. Ortiz told Wallar that the only time he left Susie’s home that night was when he went outside at around 1:30 a.m. to turn off the water.
Wallar interviewed Ortiz again in 1983 and found that the only change in Ortiz’s statement was that the Camero he saw was a 1980 model rather than a 1973 or 1979 model as previously reported. When Wallar talked with Ortiz on other occasions during the 1980’s, Ortiz’s statement did not change. Rosa’s case “went cold” and, in 1984 or 1985, Wallar was transferred to another unit of the Police Department.
Wallar returned to the Investigations unit in 1996 and arranged for Rosa’s case to be assigned back to him. On or around January 14, 1997, Wallar re-interviewed Mary about the night Rene appeared at Susie’s house. By that time, Mary and Ortiz had married and divorced. Mary told Wallar that Ortiz had left Susie’s house for quite a while that night. She said that she had not previously disclosed this fact because Ortiz had gone out to buy marijuana and he told her they would get in trouble if she told the police.
On January 15, 1997, Wallar interviewed Rosa’s son Rene (then 19 years old) and, for the first time, Rene told Wallar about the last time he saw his mother. Rene said that he remembered that Ortiz woke him from his bed and carried him through his apartment. Rene saw his mother with a blanket over her head and asked Ortiz what was wrong with her. Ortiz said his mother was sick. The next thing Rene remembered about that night was being at Susie’s house.
Wallar interviewed Ortiz on July 15, 1997. When asked about the evening of December 6, 1982, Ortiz gave the same information he had provided in the past, that he did not leave Susie’s house that night except to turn off the water and that he found Rene standing in the driveway. However, during the course of the interview, Ortiz changed his story several times. Ortiz never confessed to the murder, but he did admit that had been to Rosa’s house that night. Ortiz told Wallar that a man named Pete, a former boyfriend of Rosa’s, killed Rosa and threatened to kill Ortiz if he said anything about it.
In 2003, Vacaville Police Detective Joseph McElligott took over the investigation of Rosa’s murder. On June 4, 2003, McElligott arrested Ortiz and took another videotaped statement from him. Ortiz told another version of the events, but maintained that Pete had both killed Rosa and threatened Ortiz’s life. A felony complaint charging Ortiz with Rosa’s murder was filed June 4, 2003. An information was filed February 23, 2004, and trial commenced on March 24, 2006.
C. Trial Evidence
1. Family Members
Mary testified at trial that she and Ortiz went to bed around 8:30 or 9:00 p.m. on December 6, 1982. Shortly after she fell asleep, Ortiz woke her and asked for Susie’s car keys so he could go to Alamo Drive and buy some marijuana. Mary gave Ortiz the keys and asked him to turn off the water outside which he did not do. Ortiz returned about 20 minutes later, some time between 10:00 and 10:30, but said he had to go out again. Later that night, Mary was awakened by a loud knocking. She answered the front door and saw Ortiz with Rene who was wearing pajamas and socks. Mary asked Rene where his mother was and he responded that she was with her boyfriend Mike. Rene told Mary he had gotten to Susie’s house in a car. Mary testified that Ortiz and Susie drove to Rosa’s house at around 1:00 a.m. but nobody was home. The next day, Ortiz and Susie went to Rosa’s house again but reported to Mary that nobody answered the door. The following day, Mary, her aunt, cousin and Ortiz all went to Rosa’s house together. The front door was locked, but the back door was slightly ajar. Ortiz said he smelled something funny, but Mary went in anyway and found her sister on the living room floor, covered with a blanket with a knife in her neck.
Susie testified at trial that, on the night her four-year old nephew appeared in her driveway, she was awakened by loud banging at her door. When she opened the door, nobody was there. As she went outside, she saw Ortiz coming from the side of the house. He said he was turning off the water which Susie found strange since Ortiz had turned the water off earlier that night at her request. Then Susie saw Rene standing alone in the driveway as a red car drove away. Susie brought Rene in the house and put him to bed. Susie testified that she asked Ortiz and Mary to take her to Rosa’s house because she knew something was wrong but that they said it was too late. Ortiz did take Susie to Rosa’s house the next afternoon. Susie knocked on the front door and window and checked with a neighbor while Ortiz went around back. Susie testified that she was going to check the back of the house but Ortiz returned and said everything was locked.
Twenty-seven year old Rene testified at trial about the last time he saw his mother when he was four years old. Rene was asleep in the room he shared with his mother when Ortiz woke him and told him to get up. Ortiz carried Rene through the living room and out of the apartment. While passing through the living room, Rene saw his mother lying on the floor with a blanket over her head. Her legs were “laid out” and she was on “her bottom,” leaning against a couch or recliner. Rene asked Ortiz what was wrong with his mom and Ortiz told him she was sick and was sleeping. The next thing Rene remembered about that night was being on a couch in Susie’s house.
The prosecutor asked whether, in December 1982, Rene had told anybody what he had seen that night at his house. Rene gave this response: “Yes, but I -- I don’t recall that morning when I awoken. I don’t remember saying anything about, you know, they asked me, you know, how I got there, and I didn’t recall. I don’t recall me saying anything about his name that day. I recall later on saying who was it, and you know, but specifically that day, no, I didn’t say nothing about that day.”
Rene testified that, before he talked with Detective Wallar in 1997, nobody had ever described to him the crime scene where his mother’s body was found. He also testified that he had not undergone any therapy to try and induce or enhance his recollections of that evening.
2. Detective Wallar
Detective Wallar testified at trial about his investigation of the murder, which we have already summarized above. During cross-examination, Waller testified that the reason he re-interviewed Rene in 1997 was because he was contacted “by someone” who told him that Rene may have had additional information about the murder. During direct and cross-examination, Wallar was questioned extensively about Ortiz’s July 15, 1997, statement. An edited transcript of the interview was admitted into evidence. In addition, a videotape of the interview was played for the jury.
During the interview, Ortiz was questioned by both Wallar and by Sacramento Police Detective Mike Hammers. Ortiz provided several different versions of the events of December 6, 1982. Initially, Ortiz said he did not leave Susie’s house that night. He went to sleep on the couch at around 9:30 p.m., and Susie woke him and asked him to check if the water had been left on outside. It was late, maybe midnight or later, when Ortiz went out to turn off the water and saw a red or orange Camero driving away. He saw four heads in the car. As he walked toward the street, Ortiz saw Rene standing in the driveway and asked where Rosa was. Rene said she was “with Mike.” Ortiz knocked on the door and Mary and Susie let them in the house.
During the interview, Ortiz recalled that he last saw Rosa earlier in the day on December 6 when he and Mary went to Rosa’s house for around 30 minutes. Ortiz tuned up Rosa’s car and the three smoked marijuana. Ortiz first said he did not go in Rosa’s house, but then said he did go in to wash his hands. Ortiz said that he never told Rene about the blanket that was found over Rosa’s head and never heard anybody tell Rene anything about how his mother died. He felt he got along well with Rene and confirmed that, after he and Mary got married, they lived with Rene at Mary’s parents house.
Detective Wallar asked Ortiz whether he knew Pete Bedolla from Napa, someone who may have been dating Rosa at the time she was killed. Ortiz responded that he had heard that name and that he recalled Rosa had dated someone from Napa but that he was not sure if he had met Pete before. Wallar then asked Ortiz if he recalled where he used to get marijuana back then and Ortiz responded that he’d buy it from Frank, a neighbor who lived across the street from Susie.
Wallar urged Ortiz to think hard about whether he left Susie’s house that night. Ortiz then admitted he went across the street to Frank’s house to get some marijuana. He went right after dinner, stayed five or ten minutes, smoked a few joints and brought some home with him. Ortiz smoked a joint with Mary and watched TV. After he went to bed, Susie woke him to go turn off the water. He was outside turning off the water when he heard the car door slam. The car, a red or orange Camero or Firebird, was taking off when he saw Rene. Ortiz said that Susie’s car was in the garage that night. The car had bad brakes and did not work well. Ortiz said that he never drove Susie’s car.
The detectives questioned whether Ortiz was telling the truth. Wallar revealed that Mary had told him that Ortiz knew who killed Rosa and that other people had given him new information about the murder. Ortiz responded that his life was threatened “back then and it still is,” that the Mexican Mafia had threatened him and threatened to kill his mom and that is why he was scared. Ortiz said that someone had put a gun to his head and told him “If you tell, your family goes down.” He told the officers that, when he went outside to turn off the water, he saw a man walking toward the car and asked what he was doing. The man told Ortiz to “shut the fuck up,” put a gun to his head and said “I’m taking your family down and I’m taking you down.” Ortiz asked what the guy was doing and why Rene was there and the man threatened to kill him and his family if Ortiz told anyone anything. Ortiz identified the man as Pete from Napa, a former boyfriend of Rosa’s who was angry she broke up with him. Ortiz said that Mary had opened the door and saw Pete before he left in the Camero but that she did not hear the threat.
Hammers accused Ortiz of withholding the whole truth and Wallar expressed anger that Ortiz had lied. Waller revealed that Mary had told him that Ortiz was gone for a long time on the night in question. Ortiz admitted that he left the house for an hour or an hour-and-a-half and went to a black girl’s apartment on Alamo Drive to buy marijuana. Ortiz said he saw Pete at the apartment and Pete asked if Rosa was home. Ortiz said he told Pete she was home, and then bought his drugs and went to Susie’s home. Ortiz admitted that, after he saw Pete, he went to Rosa’s house to warn her that Pete had been talking about her and was going to come over. Ortiz said he walked to Rosa’s house. He adamantly denied that he took Susie’s car. He said that Rosa told him she would go to her parents’ house. Then, Ortiz returned home, smoked marijuana with Mary and went to bed.
Hammers told Wallar that the reason Ortiz kept changing his story was because “he did it.” Ortiz denied he killed Rosa and then provided this new version of the events: Ortiz told Mary he was going out to get “bud.” He went to Frank’s house who drove him to the black girl’s house. While Ortiz was waiting for his drugs, Pete showed up with a man named Tomalosa and asked if Rosa was home. Ortiz said she was, but also said he thought Pete and Rosa had broken up. Pete responded that “it don’t go that way.” Ortiz bought his drugs and then went home and told Mary that he had seen Pete and that he was going over to Rosa’s to tell her what Pete had said. Ortiz walked to Rosa’s house and arrived there between 11:30 and midnight. Rosa was dressed in silk pants, said she had just finished watching a movie and was about to go to bed. Rene was still up and was getting ready for bed. Ortiz said that he told Rosa what Pete had said and asked Rosa what was going on. Rosa responded that she was not with Pete anymore, that she was with Mike from Fresno and that Mike was supposed to come over that night.
Ortiz said that he left Rosa’s and walked home. He claimed that he told Mary he saw Rosa, watched television, smoked a joint and went to sleep. Later, Susie woke him to check the water and that is when he saw Pete putting Rene down in the driveway. Ortiz asked Pete what he was doing and Pete told him to “shut the fuck up,” and threatened to kill him if he said anything. While making this threat, Pete pulled out a gun and pointed it at Ortiz’s head. Ortiz said that Pete threatened to shoot him right then. Ortiz said that Mary saw Pete standing outside the house but did not hear his threats.
At some point during the interview, Wallar revealed that Rene had told him that he remembered Ortiz was at his house the night Rosa was killed. Ortiz again denied he killed Rosa, but then said “I’ll tell you the truth, now.” Ortiz said he told Mary he was going to get some bud, and then went and got Frank to drive him to the black girl’s house on Alamo Drive. The girl was busy and while they waited Pete showed up. Pete asked what Ortiz was doing and if Rosa was home. Then Pete went to do some business with a Mexican man. Ortiz went into the other room to buy drugs and while he was gone, Pete left. Then Frank agreed to give Ortiz a ride to Rosa’s house. Ortiz went into Rosa’s apartment through the opened front door. He found Pete just standing up from where Rosa was lying with a blanket over her head. Ortiz said “what the fuck are you doing.” Pete pulled out a gun and said “never mind.” Ortiz heard Rene crying, ran to his room, grabbed him and went out the back door. Frank drove them home. Ortiz knocked on the door and gave Rene to Mary and then went back outside to talk to Frank. Pete showed up and told Ortiz that if he said anything to anyone, Pete would kill him. Ortiz assured Wallar that he was now telling the truth and that he did not kill Rosa. The interview ended shortly thereafter.
3. The June 4, 2003, Statement
Vacaville Police Detective Joseph McElligott testified about the June 4, 2003, statement Ortiz made after his arrest. An edited transcript and videotape of the interview was admitted into evidence.
Initially, Ortiz told McElligott the same version of the relevant events that he had reported in 1982. McElligott reminded Ortiz that he had told Wallar a different, more honest story; and that he had admitted to Wallar that he was at Rosa’s house when the murder happened. Ortiz denied that he was there and said he did not remember telling Wallar that. After further discussion about what really happened, Ortiz told this story: Susie asked him to go pick Rosa up from her house because Susie wanted to drink with her. Ortiz went by himself to Rosa’s house in a car he borrowed from Susie’s friend. When he arrived at Rosa’s, the lights were on and hers was the only car in front of the house. Ortiz knocked at the front door. Joe, who was one of Rosa’s boyfriends, answered the door. He was holding Rene in his arms. Ortiz asked where Rosa was and pushed the door opened at which point he saw Rosa on the floor. When Ortiz asked what was going on, Joe pointed a revolver at him and said “you say any fuckin’ thing, you’re dead.” Joe gave Rene to Ortiz and Ortiz took off.
During the interview, Ortiz told McElligott that he did not go into Rosa’s house that night and that he never saw Joe again. While questioning Ortiz about the details of this story, McElligott substituted the name Pete for Joe. Ortiz did not correct McElligott or use the name Joe again as he answered questions about this new version of the relevant events.
At some point during the interview, McElligott revealed that the police had evidence that Ortiz’s DNA was “left at the scene.” He suggested that something was going on between Ortiz and Rosa and that they had a struggle that night. Ortiz adamantly and repeatedly denied that anything was going on between him and Rosa, and said his DNA was at her house because he had been there that weekend for a family gathering.
McElligott testified at trial that, at the time he interviewed Ortiz, he was aware that Pete Bedolla was Rosa’s former boyfriend and that he had been a suspect. McElligott asked Ortiz about Pete because Ortiz had previously identified Pete as Rosa’s killer.
4. Ortiz
Ortiz testified at trial that, a couple of nights before Rosa was found dead, Susie woke Mary up at around 1:30 a.m. and told her to tell Ortiz to go turn off the water. Ortiz was outside behind the house when he heard a car door slam out front. He went around to the side gate and saw a reddish-orange car, a Firebird or Camero, outside the house next door. Then he knocked on the door and told Mary to get Rene. Ortiz testified that when he asked Rene where Rosa was the boy said she was with Mike. Ortiz said that nobody went out after Rene appeared at the house and nobody asked him to go anywhere. He admitted that he had gone out earlier in the night to buy marijuana.
Ortiz testified that the day after Rene appeared, he drove Susie to Rosa’s house. They knocked at the front door and Susie called Rosa’s name. Susie suggested going around back but Ortiz testified that he did not walk to the back of the house. The two returned to Susie’s house and there was more talk about Rosa, but they did not do anything until the next day when they went to Rosa’s mother’s house in Dixon and from there to Rosa’s house. Ortiz testified that he and Rosa’s mother knocked at the front while Mary went around back alone. Mary screamed and then Ortiz and Rosa’s mother went around back and entered the apartment where they saw Rosa’s body.
Ortiz testified that he and Mary got married in 1984 and then lived for a while in the home of Mary’s parents along with Rene and other family members. A year later, Ortiz and Mary moved to Sacramento. Ortiz started having problems getting work, had anxiety attacks and at some point began using methamphetamine. He and Mary separated and he became involved in a different relationship and had two children.
Along with the jury, Ortiz watched his July 1997 videotaped interview by Waller and Hammers. Ortiz testified that he did not recall giving that statement because he was under the influence of drugs at the time. Ortiz also testified that many of the statements he made at the interview were untrue, including the stories about Pete Bedolla, and about Frank giving him a ride to Rosa’s house. Ortiz testified that he did not go to Rosa’s house that night and that he lied to Detective Wallar because he was scared by the way the detective talked and yelled at him. Ortiz explained that he changed his story so many times because he was trying to tell Wallar something that would get him off his back.
Ortiz testified that he did not kill Rosa and he did not know who killed her. He claimed he did not have or attempt to have a sexual relationship with her. Ortiz also disputed much of the trial testimony of Mary, Susie and Rene and told the jury he did not know why they would lie about him.
5. The DNA Evidence
Sharyl Barney testified that she was previously employed as a criminalist at the Department of Justice (DOJ) crime lab in Sacramento and that she tested and analyzed DNA that was recovered from the fingernail clippings from Rosa’s left hand by a process called polymerase chain reaction (PCR). Barney determined that there was one major contributor of the DNA and one minor contributor. She was provided with reference samples for both Rosa and Ortiz which she compared to the DNA profile she constructed for the DNA removed from the fingernails. Barney testified that she concluded that Rosa was the major contributor and that Ortiz could not be excluded as the minor contributor.
Barney was a reluctant witness. She testified that she left her job with the DOJ because testifying in court was extremely stressful. She admitted that she would have preferred not to have had to testify in this case. Barney testified that she had not reviewed the file of her prior work in this case in some time and she was not comfortable discussing the technical aspects of DNA analysis.
During cross-examination, defense counsel inquired about testing that Barney performed on a DNA sample recovered from the handle of the knife that killed Rosa. Barney testified that a “partial genetic profile” was recovered by swabbing the knife handle. The profile was consistent with a mixture of male and female DNA from at least two contributors, that neither Rosa nor Ortiz could be excluded as contributors to some of that DNA but that there was some DNA present on the knife that did not come from either Rosa or Ortiz. On re-direct, Barney testified that her testing also excluded Pete Bedolla, the man that Ortiz had previously accused of the murder, as a contributor of the DNA found on the knife.
Bedolla was also excluded as a contributor of the DNA found on the fingernail clippings from Rosa’s left hand.
Jill Spriggs testified that she is the Assistant Bureau Chief at the DOJ’s Bureau of Forensic Services Crime lab in Sacramento where the DNA removed from Rosa’s left hand fingernails was tested and analyzed. Spriggs explained to the jury that DNA is found in cells that contain a nucleus, that everybody has DNA and everybody’s DNA is different except for identical twins. Analyzing DNA provides a genetic profile of where the particular sample came from. The analysis involves three steps. First, the DNA is extracted from a sample. Then you “quantitate” the DNA to determine how much there is and how much to amplify (or copy) it so you will have a sufficient amount to generate a profile. The amplified sample is then put into an instrument or machine which generates a printout that tells you the genetic profile for the DNA sample.
Spriggs testified that she conducted the “technical review” of the testing and analysis that Barney performed on the DNA sample recovered from the left hand fingernail clippings. Spriggs testified that Barney’s analysis of the DNA sample in this case was appropriate and the process she followed was the same process that Spriggs herself has followed to conduct thousands of DNA tests. She testified that DOJ employees have no incentive, financial or otherwise, for finding that a given sample includes or excludes somebody. Spriggs also testified that her review of Barney’s notes and of the entire case did not create any question regarding the validity of the DNA testing and analysis in this case.
As the technical reviewer, Spriggs reviewed Barney’s case notes, looked at the “quantitiation of the amount of DNA,” and at the electropherograms, which are the computer print outs of the genetic profiles for the samples, and then she reached her own conclusions without first looking at Barney’s conclusions. Spriggs independently reached the same conclusion as Barney did, i.e., that Ortiz could not be excluded as a minor contributor of the DNA.
Spriggs testified that she analyzed the evidence sample before she looked at the reference samples for Rosa and Ortiz and determined there was a major contributor and a minor contributor. Then she looked at the reference samples for purposes of comparison to see if they could be included or excluded. The conclusion Spriggs reached was that there were two contributors “because [she did not] see any more than two contributors in [the] profile,” that Rosa was a major contributor and that Ortiz could not be excluded as a minor contributor. Spriggs further testified that the “combined probability of inclusion, is approximately one in 380,000 African-Americans, one in 45,000 Caucasians, and one in 230,000 Hispanics.” According to Spriggs, “[n]o DNA foreign to Rosa Castaneda or [Ortiz] was detected in the sample.”
During her testimony, Spriggs testified that an evidence sample is compared to a reference sample by looking at the alleles, or the DNA types, to see if they correlate. The allele is represented as a peak on the computer generated graph and a minimum peak height is set during your validation process. The DOJ interpretation threshold is 100 relative fluorescent units (rfu) and its guidelines say that analysts can look for alleles below that particular threshold with caution. In the present case, some of the alleles that Spriggs identified on the evidence sample from the fingernails did appear below the 100 rfu threshold. Spriggs estimated that, in the four laboratories in which she has worked, analysts identified alleles below the threshold approximately 50 percent of the time. Spriggs explained that the guideline is to use caution when going below the threshold in order to ensure that the data is a true DNA type or allele and not something else like “stutter,” or “pull-up” or an artifact. If there is any doubt about the nature of the data, it will not be identified as an allele; “[y]ou always error [sic] on the side of caution.”
Spriggs described stutter to the jury in this way: “What happens is, as the DNA strand is making more copies, it’s breeding in and out, and every once in a while a little hairpin loop, if you want to call it, will come out, that’s four base peaks shorter than the main peak.” According to Spriggs, the DOJ validation process accounts for stutter to insure that it will not affect the validity of the profile. Among other things, stutter can be identified by calculating a “stutter percentage” for the questionable peak in the computer data. Spriggs testified that research supports setting a baseline for identifying stutter at somewhere between 6.7 percent and 12.7 percent. However, to err on the side of caution, the DOJ usually uses a stutter percentage of 15 percent, which is very high.
The defense called Doctor Christie Davis to testify as its expert on DNA testing and analysis. Davis is a molecular biologist and consultant who reviews and re-analyzes data, notes and reports relating to testing and analysis of a given DNA sample. Davis testified about her concerns regarding the DOJ’s methods of testing the DNA evidence in this case.
Davis was critical of the fact that Sharyl Barney used only one swab to swab all five of the nail clippings from Rosa’s left hand because “it doesn’t give you any definitive answer as to where the DNA is coming from.” Davis also disagreed with the DOJ’s decision to interpret data as genetic markers for typing purposes when, in her opinion, the DNA sample was too small and degraded to yield reliable results. She testified that “it’s pretty much a consensus that you have to go back and have enough sample to amplify it more than once, to test it more than once,” and in this case the entire sample was destroyed during the first test. Davis was also critical of the fact that the DOJ analysts identified alleles below an established rfu threshold because, in her opinion, doing so introduces confusion and interpretation problems to your validation system.
Davis testified that she reviewed Barney’s analysis of other DNA samples recovered from the crime scene and, in her opinion, Barney did not consistently apply DOJ rules for distinguishing between alleles and stutter. According to Davis, when a peak has an intensity below the threshold rfu value and is within a given proximity to another peak that has been identified as an allele, the peak is in “stutter position,” and a determination must be made whether it is stutter or a true allele. In order to make that determination, the analyst makes a calculation, comparing the intensity (rfu value) of the questioned peak to that of the true allele in order to obtain a stutter percentage. If the calculation is below a given percentage established by the validation system, it should be identified as stutter.
Davis testified that one of the alleles Barney identified in the fingernail sample was in stutter position and had a stutter percentage of 15.1 percent. On the second injection of that sample, the same peak had a stutter percentage of 13.5 percent. However, Davis testified that Barney identified a similar peak in the computer data relating to the DNA sample recovered from the knife handle as stutter. According to Davis, had the data in the knife sample been typed as an allele rather than stutter, it would have been inconsistent with Ortiz’s genetic profile and excluded him as a contributor.
During closing argument, defense counsel maintained that Davis’s testimony established that the conclusions drawn by the DOJ analysts in this case should be disregarded as “junk science,” because those analysts failed to follow their own rules in some instances and did not “fairly” apply the rules for testing DNA samples.
Davis was also critical of the statistical analysis that Jill Spriggs performed with respect to the DNA test of the left hand fingernail clippings. According to Davis, Spriggs assumed there were only two contributors to the DNA sample, then excluded the part of the DNA attributable to Rosa, and then made her calculations of the remaining DNA on the assumption that it all came from one person. Davis thought Spriggs’s assumption that Rosa was the major contributor was appropriate but stated that “the problem is, there is no scientific proof to make any assumptions that there’s only two contributors.” According to Davis, if one does not assume that there was only one major and one minor contributor to the fingernail DNA, the four alleles that were identified for each genetic marker that was identified by DOJ and included in Spriggs’s statistical analysis could be paired in ten different ways to establish ten different profiles.
Davis performed her own statistical analysis in which she took into account all the possible profiles for the fingernail DNA and testified that one in 330 people matched the profile of a person who could have been a contributor of the DNA recovered from Rosa’s fingernails. Davis also performed a statistical analysis of the results of the testing of the fingernail sample which considered only those alleles that were above the 100 rfu threshold. She testified that the results of that analysis showed that one in ten people match the genetic profile for the evidence sample.
III. DISCUSSION
A. The DNA Evidence
Ortiz contends the trial court committed reversible error by admitting evidence regarding the results of tests performed on the DNA sample recovered from Rosa’s fingernails.
1. Overview of PCR Analysis
“‘DNA analysis . . . is a process by which characteristics of a suspect’s genetic structure are identified, are compared with samples taken from a crime scene, and, if there is a match, are subjected to statistical analysis to determine the frequency with which they occur in the general population.’ [Citation.]” (People v. Venegas (1998)18 Cal.4th 47, 57-58 (Venegas).)
As noted in our factual summary, the DNA samples in this case were analyzed by performing a test called polymerase chain reaction or PCR. PCR is one of two distinct systems or methodologies widely used for forensic DNA analysis. (See Venegas, supra, 18 Cal.4th at p. 58; People v. Henderson (2003) 107 Cal.App.4th 769, 777 (Henderson).) “PCR is ‘a molecular biology technical procedure for exploiting genetic differences in DNA,’ whereby small pieces of DNA are copied or amplified. The technique is employed when the DNA sample available is too small and/or degraded to perform [the] more common type of DNA analysis known a RFLP.” (People v. Morganti (1996) 43 Cal.App.4th 643, 662 (Morganti).) There are three subtypes of PCR testing: “DQ-Alpha, which tests a single genetic marker; Polymarker, which tests five genetic markers; and the STR, which tests three or more genetic markers.” (Henderson, supra, 107 Cal.App.4th at p. 777.) The PCR subtype used in this case was the STR (Short Tandem Repeat) analysis.
The other methodology, restriction fragment length polymorphism (RFLP) is not at issue in this case.
“PCR forensic analysis involves three steps. First, DNA is extracted from cells in the sample. Second, select regions of the DNA are amplified. Scientists have identified these regions, also referred to as genes or genetic markers, as areas that exhibit great genetic variation among the population. . . . After amplification, in the third and final step of PCR analysis the amplified gene is ‘typed,’ through the use of DNA probes, to identify the specific alleles it contains. [Citation.] If the DNA profile thus constructed differs in any way between the suspect and the sample, the suspect is excluded. But if the profiles match, the analyst must next determine how common the profile is in the population.” (People v. Reeves (2001) 91 Cal.App.4th 14, 28-29.)
A technique called electrophoresis is utilized to conduct the third step of PCR analysis pursuant to which the amplified gene is “typed.” (Henderson, supra, 107 Cal.App.4th at pp. 778-780.) “There are two types of electrophoresis: polyacrylamid gel electrophoresis and capillary electrophoresis. To conduct gel electrophoresis, ‘ “[a] test sample is placed on a gel medium in an ionized buffer solution. When an electric current is run through the solution, the sample separates and migrates on the medium into characteristic patterns. These are then fixed, dyed, and read visually by the analyst. [Citations.]”’ Capillary electrophoresis provides an alternative process . . . in which the DNA sample is mixed with different colored dyes and injected into a thin capillary in a machine designed to perform the process. When the DNA fragments reach the end of the capillary, a laser is used to trigger a response in the form of light based on the dyes applied to the DNA sample, which is converted automatically by the computer software into different size peaks that appear on a graph.” (Henderson, supra, 107 Cal.App.4th at p. 778-779.)
Although Spriggs did not tell the jury the name of the procedure that was used to conduct the third step of the PCR analysis in this case, her description of that process indicates that the DOJ used capillary electrophoresis to conduct the third step of the PCR analysis pursuant to which the amplified genes from the various samples were typed.
2. Issue Presented
Ortiz maintains that the prosecution failed to satisfy the “Kelly” test for admitting expert testimony based upon the application of a new scientific technique. (People v. Kelly (1976) 17 Cal.3d 24 (Kelly).) The Kelly test imposes three requirements. First, the reliability of the method must be established by showing that the technique has gained general acceptance in the relevant scientific community. Second, the witness establishing general acceptance of the technique must be properly qualified as an expert to give an opinion on the subject. Third, the proponent of the evidence must demonstrate that correct scientific procedures were used in the particular case. (Kelly, supra, 17 Cal.3d at p. 30; Morganti, supra, 43 Cal.App.4th at p. 656.)
The first requirement of the Kelly test is not at issue on appeal. “[C]ase-by-case adjudication as to the ‘general acceptance’ prong of the Kelly test is not required once the scientific technique in question has been endorsed in a published appellate opinion. [Citation.]” (Morganti, supra, 43 Cal.App.4th at p. 658.) There is no dispute that PCR methodology, including the STR subtype utilized in this case, has acquired general acceptance in the scientific community. (Henderson, supra, 107 Cal.App.4th at p. 777 .) Capillary electrophoresis, the procedure used to conduct the third step of the PCR analysis, has also gained general acceptance in the scientific community. (Id. at pp. 780, 785.)
“[O]nce a trial court has admitted evidence based upon a new scientific technique, and that decision is affirmed on appeal by a published appellate decision the precedent so established may control subsequent trials, at least until new evidence is presented reflecting a change in the attitude of the scientific community.” (Kelly, supra, 17 Cal.3d at p. 32.)
Nor is there any dispute regarding Kelly’s second requirement of testimony by a qualified expert. Jill Spriggs testified as the People’s expert at the Kelly hearing in this case. As noted above, Spriggs is the Assistant Bureau Chief at the DOJ’s crime lab in Sacramento where the DNA evidence in this case was analyzed. Without objection, the trial court ruled that Spriggs was qualified as an expert in the areas of DNA testing, analysis and technical review.
Spriggs began her career as a serologist employed by the Arizona Department of Public Safety where she performed DNA testing. In 1992, Spriggs became the DNA and technical leader for the Sacramento County Crime Laboratory where she performed PCR analysis, did case work, provided quality assurance and testified in court. In 2001, Spriggs became a DNA supervisor and technical leader at the Sacramento DOJ Crime Laboratory. Spriggs is a DNA Advisory Board Auditor and an Inspector for the American Society for Crime Lab Directors. She goes to various DNA crime labs across the country to ensure they are following correct procedures.
Ortiz’s appellate argument pertains to the third prong of the Kelly test. He contends that the prosecution failed to establish that correct scientific procedures were followed. Specifically, Ortiz’s argument is that the DOJ analysts did not use correct procedures when they conducted the third step of the PCR analysis and created the genetic profile for the evidence sample in this case.
The inquiry as to whether correct scientific procedures were used “is not merely a question of evidentiary weight, but an element of the initial admissibility determination. [Citations.]” (Morganti, supra, 43 Cal.App.4th at p. 657.) However, this third prong inquiry is necessarily more limited than a prong one challenge to the admissibility of scientific evidence. “The Kelly third-prong inquiry involves further scrutiny of a methodology or technique that has already passed muster under the central first prong of the Kelly test, in that general acceptance of its validity by the relevant scientific community has been established. The issue of the inquiry is whether the procedures utilized in the case at hand complied with that technique. Proof of that compliance does not necessitate expert testimony anew from a member of the relevant scientific community directed at evaluating the technique’s validity or acceptance in that community. It does, however, require that the testifying expert understand the technique and its underlying theory, and be thoroughly familiar with the procedures that were in fact used in the case at bar to implement the technique.” (Venegas, supra, 18 Cal.4th at p. 81.)
The trial court’s determination that the third prong of the Kelly test was satisfied is reviewed under the abuse of discretion standard. (People v. Ashmus (1991) 54 Cal.3d 932, 971.) “[R]eview of a third-prong determination on the use of correct scientific procedures in the particular case requires deference to the determinations of the trial court. . . . In reviewing that ruling, the Court of Appeal [is] required to accept the trial court’s resolutions of credibility, choices of reasonable inferences, and factual determinations from conflicting substantial evidence.” (Venegas, supra, 18 Cal.4th at p. 91.)
3. The Kelly hearing
The Honorable Peter Foor, the trial judge in this case, conducted the Kelly hearing on March 30, 2006. Jill Spriggs was the only witness at the hearing.
The court denied defense counsel’s request to take judicial notice of two declarations, one from defense expert Christie Davis, and the other by a Doctor Eisenberg. The court noted, among other things, that Ms. Davis was present in the court room and if the defense wanted her to comment on the relevant issues she could be called as a witness. The defense elected not elicit testimony from Ms. Davis.
Spriggs testified that Sharyl Barney performed the physical testing and analysis of the DNA sample recovered from the fingernail clippings from the victim’s left hand. Spriggs conducted a technical review of Barney’s testing and analysis of this specific item of evidence. Spriggs did not test or perform a technical review of tests performed on other DNA samples recovered from the crime scene in this case.
Spriggs testified that the job of the technical reviewer is to review the analyst’s notes and the results of the genetic typing and then to draw independent conclusions before looking at the analyst’s conclusions. In this case, Spriggs reached the same conclusions about the DNA evidence that Barney reached. She concluded that Ortiz could not be excluded as a contributor to the DNA sample and that there was “an exclusion of Hispanic males to one in 230,000.”
Spriggs, who had conducted a technical review of Barney’s cases more than 70 times, testified that Barney’s analysis in this case was conducted pursuant to a generally accepted scientifically approved method and in accordance with the procedures of the crime lab. The testing was performed properly, the results were valid, and there was nothing remarkable about them in Spriggs’s opinion.
During both direct and cross-examination, Spriggs was questioned about various issues raised in the defense motion to exclude the People’s DNA evidence.
Spriggs was asked about the fact that one swab was used to swab all five fingernail clippings from the left hand. She testified that this procedure was appropriate under the circumstances in order to get a sufficient amount to “get a type.” Had Barney not used a single swab, there would have been no DNA results at all. Spriggs testified that using a single swab was an appropriate and approved procedure. Spriggs also denied that the size of the sample that was recovered was too small to yield any useful information. Spriggs was not aware of any uniform standard agreed upon by the scientific community for determining whether a sample was too small to be tested but testified that, based on the cases she has reviewed, “this was not a low level of DNA.”
Spriggs was also questioned about the procedure that was used to identify alleles for purpose of typing the amplified DNA. She testified that a computer software program was used to generate a graph. Peaks in the data on the graph that rose above a “relative fluorescent unit” (rfu) threshold were identified as alleles. Spriggs testified that each laboratory sets its own rfu threshold. At the DOJ lab where the samples in this case were tested the rfu threshold was set at 100 rfu’s with the proviso that an analyst or reviewer could look for alleles below 100 rfu’s with caution. Spriggs testified that it was not uncommon to look below the 100 rfu level with caution and that doing so was acceptable in the scientific community. Spriggs also testified that the “protocol” at her lab was to make two injections of the amplified DNA sample and, when looking below the rfu threshold, to check the second injection to make sure that all of the alleles are in the other injection. Furthermore, when proceeding with caution, the results would always be evaluated in the most conservative way. She testified that the DOJ laboratories in Fresno and in the Central Valley also follow this protocol and she estimated that the practice of identifying alleles below the 100 rfu threshold occurs approximately 50 percent of the time.
Spriggs acknowledged that the manual prepared by the manufacturer of the computer software that was used in this case recommended a rfu threshold of 150 and that the FBI’s recommended threshold “back then” was 200. However, she explained that “you have to remember, you determine your relative fluorescent unit threshold, or rfu, you determine that by your validation. That’s what helps you determine that. So each particular laboratory throughout the country could have a different threshold.”
Spriggs also testified that it was appropriate to look below the rfu threshold with caution because the computer program permits viewing of those lower levels, and if one can see alleles at those lower levels it is appropriate to consider them. The reason you proceed with caution is to distinguish between a true allele and “stutter” or other “artifacts” that can appear at lower levels but are not true alleles. According to Spriggs, there are many different ways to determine that data represents a true allele including looking at the raw data, looking at what the “genotyper did,” and looking to see if it’s a mixture, but she acknowledged that this is a subjective analysis.
Defense counsel asked Spriggs whether all of the DNA samples in this case were analyzed by reading and typing data below the 100 rfu threshold. Spriggs testified that she could only answer for the samples with respect to which she performed the technical review. When defense counsel asked what those samples were, the prosecutor objected that the only relevant sample was the DNA evidence taken from the fingernails of the left hand because that was the only evidence the People sought to admit at trial. They did not intend to offer or rely on evidence relating to the testing of the samples recovered from the knife or anything else. The trial court agreed with the prosecutor that the hearing was limited to the DNA sample the People intended to offer at trial.
Defense counsel disagreed that the other evidence samples were irrelevant and was permitted to ask a few more questions. Spriggs testified that she did not perform the technical review of the DNA analysis performed on DNA samples recovered from the knife swabbings and a swab of Rosa’s breast. Defense counsel inquired whether Spriggs had determined whether Barney applied the “same standards to the left fingernails that she did to those other samples.” The trial court sustained the prosecutor’s relevancy objection.
Defense counsel complained that he had a right to inquire whether the science was applied consistently and that, if it wasn’t, the third prong of Kelly could not be satisfied. The court responded that it was not relevant if the science was applied in a different manner in a different case. Counsel then argued: “It’s the same lab, with the same defendant, with the same bags of stuff, and the same tester. If I can’t question if she was acting consistently in assessing evidence, how can I possibly question the reliability of the data itself, and now it turns out that she can’t even testify to it, so how can she testify regarding -- she has conceded that they deviated from the protocol, and unless they deviated in a consistent manner, then --” The court responded that Spriggs did not testify that the lab deviated from protocol, and said that it had heard nothing that would support the “leap” that any such deviation occurred, particularly in light of the testimony that the lab considered data below the 100 rfu threshold in 50 percent of the cases.
Defense counsel maintained he could show that the third prong of Kelly was not satisfied if the lab treated evidence that inculpated Ortiz one way and evidence that exculpated him another way. The court then stated: “Okay. I understand your point, and that may, in terms of a bias as to the individual examiner, I don’t think that that’s the subject of this hearing today. [¶] I think what we are concerned with today is the protocol that was used with respect to the item that is being sought to be introduced.” The court also pointed out that, if there was DNA evidence favorable to Ortiz, the defense could offer that evidence at trial provided it was valid evidence.
Defense counsel asked Spriggs to define the term “caution” as used in the context of considering data below the rfu threshold. Spriggs gave the following response: “The definition of caution is looking at the entire genetic profile. So for instance, in this particular profile, as I recall, this is a degraded sample, so you want to use caution when going below 100 rfu’s. [¶] Also, you want to make sure those alleles that you are calling, are in fact, not artifacts, they are not pull up, and things like that.” Spriggs also testified that another thing to consider was whether the same alleles appear in both injections. Spriggs agreed with defense counsel that you could also test the material again but said that a second test was not performed on the fingernail sample because the first test consumed the entire sample.
Spriggs testified that, when proceeding with caution, the analyst looks at the electropherogram to see what the peaks actually look like, whether they look like artifacts or pullup, that the technical reviewer independently looks at the data and decides whether it is appropriate to use data below the rfu threshold and that the administrative reviewer also separately addresses that question. Spriggs testified that it is part of the protocol that the analyst and reviewers follow to look for artifacts but that such observations are not typically listed in their notes. Stutter and pull up were listed in the analyst’s notes in this case.
After defense counsel questioned Spriggs about other issues and completed his examination, the trial court entertained argument and the matter was submitted.
The trial court ruled that the prosecution had presented evidence to show that, with respect to the DNA sample recovered from the left hand fingernails of the victim’s hand, the procedures used by the laboratory were well within the standards accepted by the scientific community. Therefore, the court denied the defense motion to exclude that evidence. The court granted the motion, however, with respect to the other DNA samples on the ground that the prosecution had elected not to defend the procedures used to test those samples because they were not being offered into evidence at trial.
The court acknowledged the concern of the defense regarding “a bias in the reporting or nonreporting by the original examiner . . . .” The court stated that this concern was not relevant to the issue presented that day but that “this is clearly something that may be relevant in front of the jury.”
4. Correct procedures
As discussed above, the third prong of Kelly required that the prosecution demonstrate that correct scientific procedures were used in this “particular” case. (Kelly, supra, 17 Cal.3d at pp. 32.) Ortiz contends that the Sacramento DOJ crime lab did not follow correct procedures and, therefore, DNA evidence should not have been admitted at trial. Ortiz’s argument can be parsed into two distinct complaints. First, he contends that identifying an allele based on data that falls below a 100 rfu threshold is not correct procedure. Second, Ortiz argues that identifying an allele that falls below the 100 rfu threshold when analyzing one item of evidence but failing to make that same call on another potentially exculpatory piece of evidence constitutes incorrect procedure.
Evidence was presented at the Kelly hearing that an analyst follows correct procedure by considering data below a 100 rfu threshold in order to identify potential alleles for purposes of gene typing. Spriggs testified that the protocol at the DOJ’s Sacramento lab is to consider such data, with caution. She also testified that, in her experience working at four different crime labs, data falling below the 100 rfu threshold is typed as an allele approximately 50 percent of the time. Spriggs explained the various methods of exercising caution to ensure that a true allele has been found and she testified that caution was exercised in this case. Her testimony supports the conclusion that both she and Barney complied with the lab’s protocol and followed correct procedure by using caution to look for alleles below the 100 rfu threshold.
Ortiz maintains that the practice of using caution to consider data below the 100 rfu threshold is not sufficiently objective or precise to ensure the level of uniform application of a procedure that is required when conducting DNA analysis. However, he presented no evidence at the Kelly hearing to support this assertion. On appeal, Ortiz quotes passages from a National Research Council report entitled DNA Technology in Forensic Science (1992). However, this report was not presented to the trial court at the Kelly hearing and it is not a part of this record on appeal.
Ortiz’s second argument is that, even if it is permissible to type alleles below the “normal peak-height requirement,” the analysts in this case failed to follow correct procedure because they “went below [that] requirement to identify some alleles and not others.” Ortiz does not support this argument with a citation to any evidence presented at the Kelly hearing. In any event, if some peaks below the 100 rfu threshold were not identified as alleles, such evidence would not establish that the DOJ failed to follow correct procedures. Spriggs’s testimony was that the proper procedure was to consider peaks below the threshold with caution, not to indiscriminately type them as alleles. She explained that exercising caution required consideration of a variety of factors depending on the nature of the sample at issue. This testimony established that it would be incorrect procedure to indiscriminately type data below the rfu threshold as alleles.
We hold that the record of the Kelly hearing contains substantial uncontradicted evidence supporting the trial court’s discretionary determination that the prosecution established that DOJ analysts followed correct procedures when they tested and analyzed the DNA sample removed from the fingernail clippings from Rosa’s left hand.
5. The limiting instruction
Ortiz separately argues that he was erroneously precluded from presenting evidence that the DOJ analysts failed to follow correct procedures in this case. Specifically, Ortiz complains that the trial court erred by limiting the cross-examination of Spriggs to preclude questioning about tests performed on DNA samples other than the left hand fingernail sample. In light of this limiting instruction, Ortiz maintains, it would have been futile for him to call his DNA expert who, admittedly, was present at the hearing. There are several problems with this argument.
First, Spriggs could not have answered defense questions about DNA evidence other than the sample from the left hand fingernails because, as she testified at the Kelly hearing, that was the only evidence on which she performed the technical review. To the extent Ortiz is arguing that Spriggs’s lack of familiarity with other DNA samples somehow rendered her testimony inadequate to satisfy the prosecution’s burden under prong three of Kelly, we disagree. The prosecution’s burden at the Kelly hearing was to establish that correct procedures were used to analyze the specific evidence it sought to introduce at trial. Spriggs was familiar with the test performed on the left hand fingernail sample and personally analyzed the test results. Therefore, the People met their burden by presenting Spriggs’s testimony that correct procedures were followed. The People had no obligation to establish that testing of DNA evidence it did not intend to offer at trial satisfied the Kelly test.
Second, the trial court did not err by sustaining a relevancy objection to questions defense counsel asked about other DNA samples that were not the subject of the Kelly hearing. Evidence or testimony about procedures used to test other items of evidence was not relevant to the determination whether correct scientific procedures were applied to test the left hand fingernail sample. The Kelly third prong inquiry is case specific. The answer depends on whether the procedures that were used to test the evidence in question are consistent with generic procedures that have already obtained approval in the relevant scientific community and satisfied the first prong of the Kelly test. (Venegas, supra, 18 Cal.4th at p. 81.) Evaluating the correctness of the procedures by comparing them to procedures used to test a completely different item of evidence that has never been the subject of a Kelly hearing, as Ortiz sought to do, would undermine the very purpose of the Kelly test.
Third, defense counsel was not precluded from eliciting or introducing relevant evidence at the Kelly hearing. The court’s limiting instruction did not pertain to questioning about the procedures that were followed to conduct the DNA analysis of the left hand fingernail sample. Nor was the defense precluded from introducing its own evidence regarding the correctness of these procedures. The defense failed to present any evidence from defense expert Davis, who was present at the hearing, or from anyone else, that the procedures followed to test the left hand fingernail sample were incorrect in the sense that they conflicted with generally accepted procedures for conducting such a test.
To support his contention that the trial court’s limiting instruction effectively precluded him from presenting relevant evidence through his own DNA expert, Ortiz directs us to portions of Davis’s trial testimony which, Ortiz intimates, he would have presented at the Kelly hearing if not for the court’s limiting instruction.
Christine Davis testified at trial that, in her opinion, Barney did not consistently apply the rules for distinguishing alleles from stutter when considering data below the 100 rfu threshold. As discussed above, Davis was critical of the fact that Barney identified an allele in the fingernail sample that was in stutter position and had a stutter percentage of 15.1 percent on one computer run and 13.5 percent on the second run. Davis questioned this call because Barney identified a peak in the computer data relating to the knife sample as stutter when that peak was also in stutter position and had a stutter percentage of 13.5 and 14.4 on the two runs of the knife sample. In Davis’s opinion, since the DOJ set its stutter percentage at 15 percent, either both of these peaks should have been identified as alleles or both as stutter.
On appeal, Ortiz contends this testimony by Davis would have been relevant at the Kelly hearing to support the defense contention that the DOJ analysts “used inconsistent, subjective standards for evaluating the DNA evidence.” This argument rests on the incorrect premise that the Kelly prong three inquiry regulates the expert’s “evaluation” of the evidence rather than the procedures followed to generate that evidence. At trial, Davis was critical of Barney’s interpretation of the computer data generated by the tests performed on the DNA fingernail sample. However, she did not question the validity of the data itself or, more specifically, the process pursuant to which that data was generated. While Kelly ensures that the procedures used in the particular case were consistent with generally accepted scientific standards, the validity of an expert’s interpretation of the results of a properly administered test is a determination for the jury to make. (See People v. Smith (2003) 107 Cal.App.4th 646, 672; Henderson, supra, 107 Cal.App.4th at p. 773.)
Ortiz’s contention that the DOJ analysts should not have considered data below an established rfu threshold can also be viewed as a criticism of the experts’ conclusions and not of the procedures they employed. However, we have accepted, at least for purposes of argument, that the decision whether to consider evidence below a given rfu threshold can be characterized as standard practice and analyzed as a “procedure” under the third prong of Kelly.
In other words, Davis’s testimony addressed a distinct issue which is wholly independent of the question whether correct procedures were followed. Davis attempted to undermine Barney’s conclusions by arguing that Barney drew different conclusions from similar data relating to a different item of evidence. Her testimony was relevant and admissible at trial to prove bias. However, this testimony does not address the third prong of the Kelly test which requires a preliminary showing that proper procedures were followed, not that proper conclusions were drawn from that data.
In the present case, the prosecution carried its burden at the Kelly hearing by presenting expert testimony establishing that the procedures followed to conduct the DNA analysis of the left hand fingernail sample were correct. Ortiz failed to present any contrary evidence at the Kelly hearing, or at trial for that matter. Therefore, we hold that the trial court did not abuse its discretion by admitting evidence of the DNA analysis performed on the sample recovered from the fingernail clippings from Rosa’s left hand.
B. The July 1997 Statement
Ortiz contends that the trial court committed reversible error by denying his motion to suppress evidence of his July 15, 1997, statement because that statement was involuntary. “A statement extracted by official coercion or threat is involuntary and inadmissible under the due process clauses of the state and federal Constitutions. [Citation.]” (People v. Lucas (1995) 12 Cal.4th 415, 441-442.) On appeal, we independently determine whether the statement was voluntary. (People v. McClary (1977) 20 Cal.3d 218, 227 (McClary), overruled on other grounds in People v. Cahill (1993) 5 Cal.4th 478, 509-510, fn. 17.)
1. Background
As discussed in our factual summary, Ortiz made his July 15, 1997, statement to Detectives Wallar and Hammers. Initially, Ortiz told the same story he had told Detective Wallar in 1982. After Ortiz first admitted he went across the street to buy marijuana and then answered questions about various details of that story, a break was taken and then the following exchange occurred:
In the transcript of this interview, Wallar’s name is spelled “Waller,” but that is not how he spelled it at trial.
“Q [WALLAR]: Your wife’s been telling me that you do know who killed Rosa and I want you to tell me who killed Rosa. I want you to be honest with me. I don’t want you to Bullshit me. I want you to be truthful with me and I know you know and I know it and if I have to come back after you, I won’t be so nice. [¶] I want you to sit down and tell me the truth and be honest with me. You know what I’m saying? You’ve got to be honest, because I’m not real happy right now.
“A [ORTIZ]: I know. I know.
“Q And I – Something’s going on and I knew it back then, but I couldn’t get it together and now I’ve got it together and I know a lot and all you have to be – you know, we all make mistakes and I’ll accept those mistakes.
“A Uh-huh?
“Q I’ll forgive you, you know what I’m saying? I’ll forgive you. It’s been 16 years, but I need to clear the case up and with the information that I’ve got now, and the new people have come out and told me a lot of things and I know a lot more than I did back then. [¶] I want you to be honest and tell me the truth. We all make mistakes and I’ll forgive you, you know what I’m saying?
“A. Okay, they probably told you – Okay, see because my life was threatened. Okay back then and it still is.
“Q Uh-huh?
“A See? And it – see, the person said they would kill my mom and stuff said that to me.
“Q Uh-huh?
“A And they’re in with MM.
“Q Uh-huh? Mexican Mafia?
“A Yeah.
“Q Okay?
“A You know, and that’s why I’m scared.
“Q Okay?
“A Because I don’t want nothing to happen to my mom. I don’t want nothing done to me or my family one of them told me that told me that was from Napa, okay?
“Q Okay?
“A He came up and put a gun in my head and told me, ‘If you tell, your family goes down.’
“Q Okay, why don’t you tell me what happened that night and be truthful?”
Ortiz then told a story about going out to turn off the water at Susie’s house and finding both Rene and Pete in the driveway. In this version, Pete threatened to kill Ortiz and his family if Ortiz said anything to anyone and then drove away in his Camaro.
After listening to the story, Officer Hammers told Ortiz to picture a scale in which “zero is total lying and a hundred percent is total truth.” Hammers believed that Ortiz was moving toward the truth but that he had not told everything he knew. He urged Ortiz to “reach out there and get to that one hundred percent level.” Hammers told Ortiz to think about the eraser on the end of a pencil and asked him to start erasing mistakes and moving forward and then said “You talk to Detective Wallar, you tell him the truth now. . . . No more – no more of this game playing crap.” Then, Detective Wallar and Ortiz had the following exchange:
“Q DETECTIVE WALLAR: You need to tell me the absolute truth, because you know what could happen if I really got angry with you?
“A Well, I could get behind bars?
“Q For accessory.
“A Right.
“Q That’s why you need to be honest with us, tell us the absolute truth and anything and everything you know. Now that you’ve opened the bag, I’m reaching in. If I – now if you’re Bullshitting me and I give you the whole thing, you’re an accessory at this point.
“A That’s what I’m saying.
“Q Because you hid that knowledge from me. How old are you?
“A 42.
“Q And you don’t want to go to jail, I’m 50 years old. How old are you, Don?
“A 51.
“Q Okay, does that make us adult men?
“A Yes, Sir.
“Q Three of us, sitting here in this room, so let’s be honest with each other, okay?
“A But that day he told me not
“Q Wait a minute.
“A -- just
“Q All right. Now no more of this Mexican Mafia crap. Let’s talk about the truth please. Okay? And everything. I’m gonna tell you the truth right now. Mary told me you were gone a lot of the part of that night, okay?”
Ortiz then told the officers that he first saw Pete when he went to buy marijuana on Alamo Drive, and then went to warn Rosa that Pete had been talking about her. Officer Hammers interrupted to point out that Ortiz was now on his fourth different story and that he was still not being truthful. After Ortiz completed his story, Hammers said: “If this gentleman did not kill her, then he has no reason to be going through all this Bullshit with us about all of this other stuff, so the only reason for him to go through this about ‘Mexican Mafia,’ about ‘Pete,’ about anything else, is because he did it.” Ortiz denied that he killed Rosa, and swore to God he did not.
One of the officers then urged Ortiz to start again, to give a complete and true statement. Ortiz responded “This -- this is a true statement,” and then proceeded to tell the story about going over to Rosa’s to warn her about Pete and finding her still dressed and Rene still awake. In this version, Ortiz said that he came home after buying bud and then told Mary he was going over to warn Rosa and then he walked to Rosa’s house. In response to this revelation, Wallar said “Goddammit, Poncho,[] if you’re tellin’ me a fuckin lie . . . I’m gonna tear you apart.” Ortiz swore to God he was telling the truth.
At the outset of the interview, Wallar confirmed that Poncho was Ortiz’s nickname and that Ortiz was comfortable being called by that name.
Ortiz said he saw Pete a second time that night, when Pete dropped Rene at Susie’s house and that is when Pete threatened to kill Ortiz. Ortiz told the officers that, the night after Pete threatened him in Susie’s driveway, he called his sister and told her about it. Wallar obtained contact information about Ortiz’s sister and asked for details about the apartment where Ortiz said he had purchased marijuana that night. Wallar said “God help you, Poncho, if you’re lying to me.” Ortiz swore he was not lying. Wallar was “piss[ed] off” and “amazed” at how many times Ortiz had lied to him. Ortiz acknowledged he had lied but said he was being truthful now.
At some point, Wallar asked “Why should I not book you for murder right now?” Ortiz maintained he was telling the truth. Wallar asked “What if you murdered her,” and Ortiz responded “I wouldn’t do that Sir.” He acknowledged that he had lied and apologized. Ortiz said that Mary and Frank could confirm various details of his account. He said Mary should have told Wallar she knew that Ortiz went to check on Rosa that night because of what Pete had said. He did not know why Mary and others were telling Wallar things that were not true. Wallar pointed out that Ortiz himself had lied quite often. Ortiz apologized again. Wallar suggested he should just book Ortiz “for accessory and let [him] fry.” Ortiz apologized again and said he did not want that and that he was now being truthful. Wallar said he did not know what to do, whether he should “book” Ortiz or let him help himself by being truthful. Ortiz reiterated that Mary and Frank could confirm his story.
Hammers suggested that Ortiz and Rosa had been having sex and asked Ortiz to tell them about the relationship. Ortiz maintained that he and Rosa had never had a sexual relationship. He said they were good friends, that he often helped her by working on her car and that he smoked marijuana with her sometimes but only when Mary was there as well. Hammers suggested they had evidence that Rosa had said things about Ortiz to her friends. Ortiz maintained that he never had a sexual relationship with Rosa.
Hammers told Ortiz that everyone makes mistakes and shared that he had a hot temper when he was younger and that he used to drink and smoke pot and that he could very easily have ended up in a situation in which he lashed out at someone or did something in anger. He distinguished that type of event from “cold blooded murder.” He said that people make mistakes when they drink and tempers flare and said that is different from first degree murder which is planned. Ortiz agreed but said he did not make a mistake, that he did not do anything to Rosa, he did not kill her.
Hammers pointed out that accidents happen, and that an accidental shooting is different from intentionally shooting someone. Again, Ortiz agreed but reiterated that he did not know how Rosa had been killed, that he was not there and that he did not do it. Ortiz denied that he had been drinking that night or taking any drugs other than the few joints he smoked. When asked who he thought had killed Rosa, Ortiz responded that he though Pete did it because he was mad that Rosa broke up with him.
A short while later, Wallar made the following statement: “Okay, I’m gonna put another cap in the wringer and this is gonna go up your ass here, what I have to tell you: I talked to Rene about three months ago.” Wallar said that Rene had suffered from nightmares, gone to a lot of therapy and that his life was “pretty much fucked up,” and then Wallar told Ortiz what Rene recalled about the last time he saw his mother. Ortiz denied that he killed Rosa. Wallar said that Ortiz’s story was not believable and said “[r]ight now I can book you for murder.” Ortiz said he did not do it.
Wallar said that its best to be truthful, that it had been 16 years and that we all make mistakes. He told Ortiz, “I almost killed a woman one time. We all make mistakes. When we’re young, we’re dumb. I don’t know.” Then the following exchange occurred:
“A [Ortiz]: Okay, I see you. Okay, I see you. I want the story, he had just killed her, okay? I’m sorry – I’m sorry, he did and I’m sorry. [¶] I seen him. When I walked in that door, he had just got up from her and that’s when I took Rene out real quick. I’ll tell you the truth, now.
“Q Well, how many times you gonna fuckin’ lie to me?
“A I’m not gonna lie no more, it’s the truth.
“Q I should just book you for accessory. Fuck it.
“A I’m sorry. I’m sorry, but it’s the truth. I seen him coming up from her like that and I picked Rene up and ran with him.”
The officers told Ortiz to slow down, calm down, have some water and start from the beginning. Hammers said that he appreciated what Ortiz had just done and said that he was being extremely helpful. Then, while Hammers went to get Ortiz a glass of water, the following exchange occurred:
“A [Ortiz]: I want you to believe me Sir, I swear to God I do.
“Q [Wallar]: Well, how many times have you changed the story? That’s why I’m getting such a headache.
“A You’re right.
“Q And you’re really frustrating me, because I hate people lying to me and if I had done it – my – you know, my conscience wouldn’t let me live this lie all this time. I’d feel – I feel for her son who’s been in and out of therapy and what he told me – remembers – you know what? What he told me after all these years what he saw, that’s why I’m here.
“Now, right there, Poncho, I want you to tell me - - when we get started, I want you to tell me the exact, honest truth and I don’t know how I can stop you from lying to me, but if I prove that you’re lying to me, I will arrest you for murder.
“You have to think about it. It’s 16 years. Just tell me the honest truth. That’s all I’m asking. You’ve lived with this murder for 16 years. It was an accident. You could have did it, it was an accident because you loved that girl, didn’t you?
“Didn’t you like Rosa?
“A For a sister, I guess, yes.”
Wallar told Ortiz to think about his story, to give information that would show Ortiz did not kill Rosa or to admit it if he did and to be “a man about it.” Ortiz responded that he “didn’t do it.” Wallar talked about Rene, what he had been through and said, “if I was Rene, when I grew up I’d probably shoot you.” Ortiz started to talk about Pete but Wallar told him to wait. He told Ortiz it was really hard to believe that Ortiz walked all the way to Rosa’s house on such a cold night just to tell her that he saw Pete. Wallar did not believe that Ortiz would walk all that way unless there was an ulterior motive. Wallar urged Ortiz to tell him “every minute truth to this,” if he killed Rosa and if it was an accident.
Wallar continued, “[i]f you killed her, tell me it’s an accident, because if I have to prove it and you’re not being honest with me, it’s gonna be a lot worse for you. [¶] You understand where I’m coming from? It’s gonna be a lot worse for you. [¶] But if you [can] just be honest and show that after these 16 years you’ve lived with it and you’re telling me the truth, it’ll be a lot better for you than to make me prove that you did it. [¶] If I prove that you did it, you’re gonna be in a lot of trouble, because a Judge is not gonna like it at all. [¶] So, you know where I’m coming from, we want to go through it nice and slow and believe me, you’d better tell me the truth, or you’re not gonna go home tonight. The honest truth, all right?”
The officers instructed Ortiz to start from the beginning. Ortiz told one last and different version of the events of December 6. The officers asked for details which Ortiz provided. At some point, Wallar asked “Are we up there at the hundred percent level, or are we getting close?” Ortiz responded, “I’m right there now, yes. Because of what I’m telling you now.” Ortiz said that Frank and Mary would confirm various aspects of his story. Ortiz also repeated that he had told his sister that someone had threatened him and that she had advised him to keep quiet. Ortiz said he would call his sister and tell her to talk to the police and tell them the truth. Ortiz could not remember Frank’s last name but said that Susie would know it and that Frank would confirm his story.
2. Analysis
A statement is not voluntary if it was obtained by threats or by promises of leniency, whether express or implied. (People v. Holloway (2004) 33 Cal.4th 96, 115 (Holloway); People v. Neal (2003) 31 Cal.4th 63, 69 (Neal) People v. Ramos (2004) 121 Cal.App.4th 1194, 1202 (Ramos).) “[M]ere advice or exhortation by the police that it would be better for the accused to tell the truth when unaccompanied by either a threat or a promise does not render a subsequent confession involuntary.” (Holloway, supra, 33 Cal.4th at p. 115.) “Voluntariness does not turn on any one fact, no matter how apparently significant, but rather on the ‘totality of [the] circumstances.’ [Citations.]” (Neal, supra, 31 Cal.4th at p. 79.) “‘“Among the factors to be considered are ‘“the crucial element of police coercion [citation]; the length of the interrogation [citation]; its location [citation]; its continuity” as well as “the defendant's maturity [citation]; education [citation]; physical condition [citation]; and mental health.”’ [Citation.]”’” (Ramos, supra, 121 Cal.App.4th at p. 1202.)
“‘Coercive police activity is a necessary predicate but does not itself compel a finding that a resulting confession is involuntary. [Citation.] . . . Additionally, ‘such activity must be, as it were, the “proximate cause” of the statement in question, and not merely a cause in fact.’ [Citations.]” (People v. Jablonski (2006) 37 Cal.4th 774, 813-814.) Therefore, a threat renders a statement involuntary “only if the threat actually induces defendant to make the statement.” (People v. Lucas, supra, 12 Cal.4th at p. 442.) Similarly, “an improper promise of leniency does not render a statement involuntary unless, given all the circumstances, the promise was a motivating factor in the giving of the statement.” (People v. Vasila (1995) 38 Cal.App.4th 865, 874.)
Applying these rules in the present case, we find that the July 1997 statement was properly admitted into evidence. No part of that statement was induced by a promise of leniency. The officers may have suggested that things would go better for Ortiz if he was truthful. However, they never promised nor even suggested that he would receive more lenient treatment if he confessed to the crime or admitted some incriminating fact. Nor do we find that any material statement Ortiz made during this lengthy interview was induced by a threat. Clearly, the detectives expressed their extreme frustration with the fact that Ortiz repeatedly changed his story. We do not believe these expressions of frustration, though colorful and sometimes inappropriate, can reasonably be construed as threats. Even if they can, Ortiz did not make any incriminating statement in response to these comments. Rather, our review of the transcript of the interview confirms that each time Ortiz made a material change to his story, he was responding to or trying to incorporate some new fact that Wallar disclosed he had learned from another witness.
As noted above, the interview was videotaped. After reviewing that tape, we agree with the following observations made by the trial court during the hearing at which it ruled that the July 1997 statement was voluntary: “With regard to the motion to suppress that statement, I did not feel that the officer’s conduct in -- throughout the interrogation of Mr. Ortiz on that date was such that it would require suppression of the statement. First of all, this is clearly a noncustodial interrogation. Mr. Ortiz appears responsive and -- although there’s times that the conversation becomes animated, I don’t feel that the officers [cross] the line. Mr. Ortiz never indicated, either by any express words or by his body language on the videotapes, that he felt particularly threatened or intimidated. And while defense counsel has selected some particular words or sentences used by the officer from time to time, particularly towards the latter part of the interrogation, as I said before, I don’t really feel that the officer’s -- in viewing the totality of the circumstances here, I don’t think that the officer’s conduct was overbearing or threatening or intimidating such that Mr. Ortiz’s freewill was overborn or that it reached the point where Mr. Ortiz was just willing to say anything in order to get through or finish the interrogation. . . .”
The trial court did suppress statements that Ortiz gave on August 28, 1997, and May 6, 1998, on the ground they were made during custodial investigations without Miranda admonitions. The court also suppressed the second part of Ortiz’s June 4, 2003, statement which was given after Detective McElligott made statements which the court construed as promises of leniency.
On appeal, Ortiz does not identify any particular statement, revelation or even a specific story that he offered during the interview which he now claims was coerced. Instead, he makes the sweeping argument that every statement he made during the interview was involuntary because Wallar either implicitly or expressly threatened to arrest Ortiz and take him to jail “if he did not give Waller the ‘truth’ as Waller perceived it.”
In terms of cause and effect, this argument fails at its base because it is quite clear that Ortiz never did give Wallar the “truth” as Wallar perceived it. Quite obviously, Wallar believed that Ortiz and Rosa had a secret relationship, that something happened between them and that Ortiz killed Rosa, perhaps unintentionally or in a fit of rage. Ortiz never made any statement which directly or indirectly supported these theories. Ortiz avoids this fatal flaw in his theory by extracting a few statements that Wallar made at various points during the interview, interpreting those statements to suit his needs, and then seeking to exclude everything that Ortiz said.
Ortiz contends that “[t]hroughout the interrogation, [Wallar] threatened to take appellant to jail, book him for accessory, and book him for murder.” The possibility that Ortiz would be arrested as an accessory was first raised after Ortiz told a story which directly supported such a charge. Indeed, Ortiz acknowledged this fact. By discussing the implications of Ortiz’s story and contemplating the potential consequences of telling that story, Wallar did not “cross the line from proper exhortations to tell the truth into impermissible threats of punishment or promises of leniency.” (Holloway, supra, 33 Cal.4th at p. 115.)
Later in the interview, after Ortiz changed his story once again, Wallar asked Ortiz why he should not book him for murder. By that time, Ortiz had acknowledged that he had repeatedly lied to Wallar and apologized for that. He had also disclosed that he went to Rosa’s house on the night of the murder. Under the circumstances, the potentiality of a murder charge was not only real, it was obvious to everyone in the room.
In any event, even if we could be persuaded to construe one or some of Wallar’s comments as threats, Ortiz does not identify any statement he made that was induced by a threat of arrest. Indeed, it appears that Wallar’s various comments about arresting Ortiz were responses to changes in Ortiz’s story rather than inducements for those changes. This fact distinguishes In re J. Clyde K. (1987) 192 Cal.App.3d 710 (Clyde), disapproved on another ground in People v. Badgett (1995) 10 Cal.4th 330, 350, a case upon which Ortiz mistakenly relies.
In Clyde, a police officer patrolling an area outside a concert detained three minors who were carrying large boxes. The officer told each boy that he would receive a citation if he told the truth but that he would be arrested if there was proof the boxes were stolen. Eventually, one of the boys confessed the boxes were stolen after stating that he did not want to go to jail again. (Clyde, supra, 192 Cal.App.3d at pp. 714-715.) The confession was found to be involuntary because the officer’s “statement impermissibly led the young boys to expect more lenient treatment in exchange for their confessions,” and the promise of leniency prompted the confession. (Id. at p. 722.)
In contrast to Clyde, here, there was no promise of leniency that prompted a confession. Wallar and Hammers inquired whether Ortiz killed Rosa by accident or whether he made a mistake, but never said or intimated that Ortiz would receive more lenient treatment in exchange for confessing to such an occurrence. Suggestions that a killing may have been accidental or occurred during a fit of rage, and that such circumstances could make a lot of difference, “fall far short of being promises of lenient treatment in exchange for cooperation.” (Holloway, supra, 33 Cal.4th at p. 116.) Furthermore, Ortiz did not confess that any accident or mistake occurred. Indeed, he consistently responded to such suggestions by denying that he did anything wrong.
Ortiz contends that McClary, supra, 20 Cal.3d 218, supports his claim that Wallar overstepped the line. We disagree. In McClary, the officers who interrogated a sixteen-year-old murder suspect repeatedly ignored her requests for counsel, falsely advised her she could get the death penalty if she was charged as a “principal,” told her she would be charged as a principal unless she changed her story, and “strongly implied that if [she] changed her story and admitted mere ‘knowledge’ of the murder, she might be charged only as an accessory after the fact.” (Id. at p. 223-224, 229.) Here, by contrast, the July 1997 statement was made during a noncustodial interrogation and, during it Wallar did not make any false statements about the law. Nor did he say or even imply that Ortiz could avoid a murder charge by changing his story. Quite to the contrary, Wallar made it clear that he was not convinced by Ortiz’s efforts to portray himself as an accessory after the fact.
Finally, Ortiz directs our attention to People v. Esqueda (1993) 17 Cal.App.4th 1450, 1486 (Esqueda). The suspect in that case was detained and interrogated shortly after he obtained emergency assistance for his live-in companion who had been shot in the head. “After lengthy and unlawful pre-Miranda questioning, the police, using lies, trickery and threats, coerced a ‘waiver’ of Esqueda’s Miranda rights.” (Id. at p. 1484.) For over an hour of the eight hours of interrogation that followed, police lied to the defendant about the victim’s condition. After they finally disclosed she had died, officers made numerous other false statements including that the victim made dying declarations accusing the defendant of the crime. (Id. at p. 1485.) During the interrogation the defendant was emotionally distraught, exhausted and even physically ill. The officers exploited defendant’s unstable condition by appealing to his sense of responsibility to his family and young children, his manhood, his religion and his Hispanic heritage. (Id. at p. 1485.) They did not simply suggest mitigated and non-mitigated scenarios, they told the defendant what story they wanted to hear. They said his only “way out” was if it was an accident and implied that he would not have to go to prison and could be out with his children if he admitted that he accidentally killed the victim. The defendant repeatedly stated that he did not want to talk, but the detectives “used lies, accusations, exhaustion, isolation and threats to overcome Esqueda’s resistance.” (Id. at p. 1486.)
Ortiz undermines his own argument by comparing his case to Esqueda. The officers in this case did not violate Ortiz’s Miranda rights or engage in any of the egregious tactics employed by the interrogators in Esqueda. Furthermore, Ortiz again simply ignores that, in contrast to the present case, the challenged conduct by investigators in Esqueda induced a confession. Ortiz points out that the Esqueda court faulted the interrogators in that case for conveying the clear “message” that “[f]ailure to tell [the detectives] what they wanted to hear would result in greater charges.” (Esqueda, supra, 17 Cal.App.4th at p. 1486.) We disagree that Wallar conveyed that message here. Rather, in response to an ever changing story, Wallar repeatedly implored Ortiz to tell the truth.
When viewed under the totality of the circumstances, Ortiz’s July 15, 1997, statement was voluntary. Therefore, we hold that the trial court did not err by admitting that statement into evidence at trial.
C. Sentencing Errors
1. Conduct Credits
Ortiz contends the trial court erroneously denied him conduct credits authorized by section 4019. The trial court awarded Ortiz 1234 days credit for time served while awaiting trial, but denied him any pre-sentence good conduct credits pursuant to section 2933.2 which provides that a person convicted of murder may not earn conduct credits pursuant to section 4019.
Subdivision (d) of section 2933.2 states that “[t]his section shall only apply to murder that is committed on or after the date on which this section becomes operative.” Section 2933.2 became operative June 3, 1998. (People v. Hutchins (2001) 90 Cal.App.4th 1308, 1317.) Rosa was murdered before that date, in 1982. Therefore, the People concede, the trial court should have awarded Ortiz section 4019 conduct credits.
Conduct “credits are calculated by dividing the number of actual presentence custody days by four and then multiplying this number by two . . . . There is no credit given for days remaining after dividing by four.” (People v. Bravo (1990) 219 Cal.App.3d 729, 731; see also People v. Smith (1989) 211 Cal.App.3d 523, 527.) Ortiz and the People both apply this rule and agree that Ortiz is entitled to 616 days of conduct credits.
2. Fines
Ortiz contends the trial court erred by imposing a $10,000 restitution fine pursuant to section 1202.4 and a $10,000 parole revocation fine pursuant to section 1202.45. The People concede the errors.
Restitution and parole revocation fines qualify as punishment for purposes of the prohibition against ex post facto laws. (People v. Saelee (1995) 35 Cal.App.4th 27, 30 [restitution fine]; People v. Callejas (2000) 85 Cal.App.4th 667, 669 [parole revocation fine].)
Section 1202.4, which requires the sentencing judge to impose a restitution fine, became effective January 1, 1984. (People v. Glenn (1985) 164 Cal.App.3d 736, 738.) Section 1202.45, authorizing parole revocation fines, became effective August 3, 1995. (People v. Callejas, supra, 85 Cal.App.4th at p. 669.) Neither of these statutory provisions was in effect when Rosa was murdered in 1982. Therefore, both fines will be stricken.
IV. DISPOSITION
The judgment is modified to give Ortiz 616 days of conduct credits and to strike the restitution and parole revocation fines. The trial court is directed to amend the
abstract of judgment accordingly and to forward a copy of the amended abstract of judgment to the Department of Corrections. As modified, the judgment is affirmed.
We concur: Kline, P.J., Richman, J.
Spriggs testified that she has personally performed DNA testing thousands of times and that she has technically reviewed over 500 cases. She has been qualified as an expert in the area of DNA analysis and testing more than 30 times and has also testified as the technical reviewer in two cases in which the analyst who performed the manipulation of the physical evidence was not available.
Ortiz briefly references these other rulings as evidence of an alleged pattern of misconduct by the Vacaville police. Clearly, though, Ortiz’s other statements were not sufficiently close in time to be treated as part of the July 1997 interview, which is the only event at issue on this appeal.