Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, No. TA096158, Allen J. Webster, Jr., Judge.
Landra E. Rosenthal, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Theresa A. Patterson and Robert David Breton, Deputy Attorneys General, for Plaintiff and Respondent.
WILLHITE, J.
INTRODUCTION
A jury convicted defendant Carl E. Price of the first degree felony murder of Mamie Johnston. (Pen. Code, § 187, subd. (a).) The primary evidence against him was the testimony of an accomplice and fingerprint evidence placing him in the victim’s home. The trial court sentenced defendant to a life term with the possibility of parole.
In this appeal, defendant raises four distinct contentions. The first is that the 33-year delay between the commission of the murder in 1975 and his arrest in 2008 violated due process. The trial court conducted an evidentiary hearing on defendant’s motion to dismiss and twice denied the motion. We find that its ruling was not an abuse of discretion and that its underlying factual findings are supported by substantial evidence.
Defendant’s second contention is that the trial court erred when it precluded him from presenting an expert witness who would testify that, in his opinion, the general accuracy of fingerprint identification evidence has not been established. We find that the evidentiary ruling was not an abuse of discretion and did not deny defendant the due process right to present a defense.
Defendant’s third contention is based upon his age (17 years old) when he committed the offense. Because a fitness hearing would have been conducted in 1975 to determine his amenability to the processes of the juvenile division of the superior court before a felony prosecution could be initiated, defendant urges that the trial court’s denial of his request to conduct a fitness hearing (even though he was 50 years old at the time of his arrest) deprived it of jurisdiction to conduct a felony trial on the murder charge. We are not persuaded.
Defendant’s fourth contention involves minor claims of sentencing error, two of which the Attorney General concedes. We direct preparation of an amended abstract of judgment to correct the two sentencing errors, but, in all other respects, affirm the judgment.
In this factual summary, we set forth the evidence presented at trial about the murder and defendant’s culpability as well as the defense evidence. Detailed evidence about the police investigation of the matter, including the reasons that it took 33 years to charge and arrest defendant, will be set forth in detail when we discuss defendant’s contention that the trial court erred in denying his motion to dismiss for denial of due process.
On August 21, 1975, the police found 84-year old Mamie Johnston brutally murdered in her home. She had been manually strangled so severely that her neck had been broken. In addition, she had been beaten many times and stabbed 62 times. The home had been ransacked. Two bloody knifes were found in the kitchen sink. The police lifted latent fingerprints from throughout the home but the Los Angeles Police Department (LAPD) had no computer data base in which to enter the prints to see if they matched a particular individual. Manual comparisons were made to potential suspects but no matches occurred. The police actively investigated the case for four or five years but received no leads and eventually closed it.
In 1993, the case was reopened. The latent prints taken in 1975 were run through a recently installed computerized fingerprint comparison system. Fingerprints as well as a palm print matched one Phyllis Carraway.
The police interviewed Carraway. At first, Carraway denied knowing anything about Johnston’s murder and claimed that she had never been in the victim’s home. However, when the police confronted her with the fingerprint evidence placing her at the crime scene, Carraway told them “the truth about everything.”
At defendant’s trial, Carraway testified as follows. In 1975, she had lived with her family across the street from Johnston. At that time, Carraway’s boyfriend was Alvino Love. Defendant was Love’s best friend. Carraway sometimes went to defendant’s home with Love where she met defendant’s mother.
The jury was instructed that Carraway was an accomplice as a matter of law and that her testimony required corroboration.
During the late evening of August 20, 1975, Carraway (then 16-years old), Love and defendant were together, discussing their desire for money. Carraway suggested that the three of them rob Johnston because she knew that Johnston would open the door for her. The two men responded positively to Carraway’s proposal. They agreed that once Johnston opened the door for Carraway, defendant and Love would rush into the home.
The three walked across the street to Johnston’s home. Carraway knocked on the door. Defendant and Love stood to Carraway’s side so that Johnston would not be able to see either of them. When Johnston answered the door, Carraway asked to use her phone. Defendant and Love immediately rushed passed Carraway, pushed the door open, and dragged Johnston into the back bedroom. Carraway watched as defendant and Love pinned Johnston down on the bed. Love told Carraway to go to the living room. She complied. From the living room, Carraway heard Johnston scream and gasp for air as she struggled against the two men. When the noises stopped, defendant and Love came out of the bedroom. While in the house, Love (but not Carraway or defendant) wore gloves.
The three were in the victim’s house for approximately 30 minutes. They left through the front door and soon boarded a bus. Carraway and Love went to a motel, using some of the stolen cash to pay for a room. Defendant rode the bus to an unknown destination.
After Johnston’s murder, Carraway and Love committed several more residential burglaries together. They had an on-going relationship in which Love was physically abusive. They had a son who died in 2002. Carraway maintained contact with Love until he was “hit by a train” “a few years” prior to defendant’s 2009 trial. Carraway last saw defendant in 1982.
In the early 1980’s Carraway used PCP and cocaine on a regular basis. When the police found her in 1993, she was still using drugs. In addition, she was “hearing voices” and taking an anti-psychotic medication.
In 1995 (two years after the police had located her), Carraway pled guilty to voluntary manslaughter for Johnston’s death and served three years in state prison. By the time of trial (2009), Carraway had suffered convictions for prostitution, burglary, robbery and unspecified drug offenses. Carraway was on felony probation for a perjury conviction when she testified at defendant’s trial.
Officer Darnell Carter testified that in 1975 he was assigned to the LAPD crime scene investigation. He went to Johnston’s home and lifted fingerprints from the crime scene. He testified that the prints subsequently identified as belonging to defendant were taken from the inside door knob of the victim’s home.
Hoi Lui, a latent print analyst with the California Department of Justice (DOJ), testified that in 2005 she positively identified two fingerprints lifted from the doorknob on the inside of Johnston’s front door as belonging to defendant. (Further details about both Carter and Lui’s testimony will be set forth when we discuss defendant’s second contention.)
The case was ultimately assigned to Detective Salaam Abdul for further investigation. In February 2008, Detective Abdul contacted Damon Ramon Adger who had lived down the street from Carraway in 1975 when he was 13 years old. At defendant’s trial, Adger testified that he frequently saw Love visit Carraway in 1975. Within “the day or [a] couple days before [Johnston’s] murder, ” Adger saw Carraway with Love and another African-American male about the same age as Love. Detective Abdul showed Adger a six-person photographic display and asked him if any of the men was the individual he had seen with Love and Carraway shortly before the murder. Adger circled two photos and wrote: “No. 4 or 6 would most likely be the person.” Number 6 is defendant’s photograph.
After a complaint was filed charging defendant with Johnston’s murder, the police arrested him in March 2008. Following advisement and waiver of his Miranda rights, defendant agreed to speak with Detective Abdul. Defendant admitted that he had had known Love but said that he believed Love was now dead. He denied knowing Carraway, stating he “wouldn’t know Phyllis Carraway even if [the police] put a photograph of her in front of him.” He denied ever having been in the neighborhood of Johnston’s home. He denied having murdered Johnston. When Detective Abdul told defendant that his fingerprints had been found in Johnston’s home, defendant “said he didn’t know how his fingerprints would get in someone’s house on a murder. He also said that there’s a possibility that the police could have planted the fingerprint inside the residence.”
Defendant did not testify at trial. He presented one defense witness: his mother Viola Price. She testified that contrary to what Carraway had claimed, Carraway had never been to her (Price’s) home. In fact, Price had never met Carraway.
DISCUSSION
I. THE MOTION TO DISMISS FOR DENIAL OF DUE PROCESS
A. Factual and Procedural Background
Prior to trial, defendant moved to dismiss the pending prosecution for denial of due process. The trial court conducted a two-day evidentiary hearing at which six witnesses testified for the prosecution about the case investigation and the decision to charge defendant. No witnesses testified for the defense. To the extent that the defense attempted to establish prejudice and unjustified delay, it did so through declarations from defense counsel, the contents of which will be set forth later.
Defendant has not included a copy of that motion in the record on appeal.
1. The Initial Investigation
Detective Lawrence Pagenkopp was one of the officers who first discovered Johnston murdered in her home in August 1975. He actively investigated the case for six months. At that time, the LAPD did not have a computer assisted fingerprint data base into which the crime scene fingerprints could be entered. Instead, “[e]verything was done manually”: a trained member of LAPD’s fingerprint unit would compare the latent prints to specific prints. Over the next four years, the crime scene fingerprints were individually compared to “at least” the prints of 30 to 40 people, either potential suspects (individuals arrested for similar crimes) or people who lived in the neighborhood. One such person was Love. None of the comparisons, including Love’s, “came back with a hit.” According to Detective Pagenkopp, the homicide unit was “always analyzing something to see if there was a clue somewhere.” The case was closed “pending development of new information prior to [his] leaving the homicide unit” at “the end of ‘79.”
2. The 1993 Investigation
In 1993, there was no cold case unit. Instead, “[i]f a reason developed or new investigative leads came forward on an old case, ” the police would “work the case.” In this matter, the triggering event occurred after Johnston’s daughter read an article about a “new” “fingerprint technology” that had helped to solve “an old case.” She contacted LAPD to ask if “this new technology would assist in the investigation of her mother’s death.” As a result, the Johnston murder case was assigned Detective Gary Aspinall.
Detective Aspinall had the latent fingerprints from the crime scene “run through the system.” Detective Aspinall testified: “The system was different than it was in 1975. Technology had improved.” LAPD had its own fingerprint data base and had access to the separate fingerprint data bases maintained by the Los Angeles County Sheriff and the DOJ. Using one or more of these data bases, fingerprints taken from Johnston’s home “were determined to belong to a Phyllis Carraway.” Detective Aspinall reviewed the murder book, located Carraway, and interviewed her. She told him that she, defendant and Love had robbed Johnston because “[t]hey needed money.” Detective Aspinall asked Carraway for identifying information about defendant and Love, but she gave him no specific information about either man other than race (African-American) and approximate age.
LAPD first acquired its computer data base in 1987.
Detective Aspinall “utilized department resources, databases and such, looking for the [two men’s] names specifically and an age range that could correspond to what Miss Carraway said their age would be, approximately.” As a result, the police located Love in state prison. Detective Aspinall and his partner Detective Brizzalara attempted to interview Love at prison about Johnston’s murder. Detective Aspinall testified that it did not go “well from an investigative standpoint. [Love] refused to talk to us. He was hostile.” (Italics added.) Love gave them no information about defendant. In addition, when the detectives attempted to execute a search warrant requiring Love to give samples of his “[s]aliva, pubic hair, [and] blood, ” “[Love became] very hostile. Prison personnel had to restrain him to a gurney, a hospital bed, for the body samples to be taken.”
At the time of the hearing, Detective Aspinall testified that he had “no idea” about his partner’s whereabouts. He explained: “He’s retired... 10, 15 years.”
As for locating defendant, Detective Aspinall made the same efforts he had successfully used to locate Love. He testified that he used “[a]ll the databases that were available to us at the time.” He explained that this included DMV records, Field Investigative (FI) cards, traffic tickets, “the criminal history database [including] the FBI database, national criminal history.” He testified: “We did everything that we could at the time that we could think of. I don’t recall not doing anything that we could do in our attempts to locate and identify [defendant]. [¶] All proved negative. We couldn’t identify him at the time.” Detective Aspinall’s efforts were hampered by not knowing defendant’s birth date or Social Security number; he had only “an age range” and a name (Carl Price) that would come back with “at least several” hits. He was not able to “identify[] any Carl Price to the point where [he] would consider that specific Carl Price to be relevant to the [Johnston murder] investigation.”
In addition, the latent prints later identified as belonging to defendant were run several times through the different fingerprint data bases in the mid 1990’s, but “there was no hit” on defendant. Cathleen Rogde, who had worked in the field of latent fingerprints for the LAPD for 33 years, testified that even if an individual’s fingerprints had been entered into the system, a match may not occur when a latent print from that individual person is run through the system. She explained: “We didn’t always get good prints. The jailors rolled the prints in ink, and whatever they rolled went into our database, anything that’s smudged didn’t come through.”
3. 2001 – The Cold Case Unit is Formed
In 2001, LAPD formed a cold case unit as a result of “advances with technology and fingerprints and DNA.” The six-person unit was assigned “over 6, 000” cases. Initially, the unit gave cold cases with DNA evidence priority because it had an October 2003 deadline “to qualify for a state grant” that would “absorb the costs for the [DNA] testing.” In the course of doing that work, Officer Clifford Shepard reviewed the Johnston file and learned that that it contained potential DNA evidence: vaginal slides taken from the victim by the coroner’s office. Officer Shepard had that evidence analyzed but “no suspect profile... was developed from that.” He read the 1993 interview with Carraway and saw that there was no “identifying information” about defendant Price. He “repeatedly” attempted “to find out who this Carl Price might be.” He “checked arrest records, DMV, the local arrests, state arrests [but] wasn’t successful in identifying a particular Carl Price” because he had “just a name and approximate age.”
In 2003, Officer Shepard learned that Love had been in prison “a number of times.” He also found that Love “at one time had used Carl Price as an alias” so he checked “Love’s arrest records to see if he had ever been arrested with Mr. Price. [He] found none.” Around that time, Officer Shepard found that Love lived “in the Victorville area” at the same address as Carraway. Officer Shepard was “concerned that the two of them were together [and thus was wary] of contacting Ms. Carraway and allowing her to then maybe tell Mr. Love that an investigation was still open.”
In 2005, Officer Shepard instructed Detective Vivian Flores, another member of the cold case unit, to submit the latent prints from the crime scene to the DOJ. Some of the prints matched defendant. At that time, the cold case unit was “very extremely busy.” Officer Shepard was unable to pursue the matter because he was working on approximately 10 other cases and had information that “[defendant] was in custody and wasn’t currently free.” Officer Shepard was subsequently assigned to another task force and did no further work on the Johnston case.
Office Shepard testified that one of these cases “was a serial case [with] 14 victims and a man locked up in prison that [he] didn’t believe was guilty and [was] trying to get him out and get the other one in.” He explained that another case involved “a man down in Texas that -- we had a DNA identification hit on; and then two other cases we had where suspects were in prison.”
4. Defendant is Charged with Johnston’s Murder
In December 2007, the Johnston murder case was assigned to Detective Abdul of the cold case unit. At that point, the unit was handling approximately 9, 000 cold cases. Detective Abdul learned that defendant had been identified as having left his fingerprints at the crime scene. The detective reviewed the murder book, determined that defendant was not in custody, and interviewed Carraway who made a photographic identification of defendant. Detective Abdul presented the case to the prosecutor who filed a complaint in March 2008. Shortly thereafter, the detective arrested defendant.
5. Defense Counsel’s Declaration in Support of the Motion to Dismiss
As noted earlier, the defense offered no witnesses at the pretrial hearing. Instead, defense counsel proffered a declaration. In it, he averred:
“5. In the late 1970s, Mr. Love and [defendant] were convicted and sentenced to prison for facts alleging kidnapping and rape that occurred in Los Angeles.
“6. Det. Pagenkopp’s co-I/O Jerry Rogers died prior to [defendant] being charged.
“7. Damon Adger informed [defense] investigator Yolanda McAllister that he heard a rumor that Mamie Johnston’s gardener committed the murder.
Adger testified at trial for the People. When asked about this rumor, the trial court sustained the prosecutor’s hearsay objection. Defendant does not contest that evidentiary ruling in this appeal.
“8. Alvino Love was hit by a train near Victorville in June 2006.
“9. At the time of Phyliss Carraway’s arrest in 1993 and her subsequent interrogations by LAPD, she experienced auditory hallucinations and made at least two requests for pregnancy tests while in custody for more than nine months. This information regarding Ms. Carraway was provided to counsel by the DA’s office in the form of Ms. Carraway’s medical records.
“10. By not arresting [defendant] in 1993, he was unable to confront Ms. Carraway or Mr. Love to ascertain the truthfulness of her contentions.
“11. Moreover, Ms. Carraway’s sister and confidant died on November 24, 2006.”
6. The Trial Court’s First Denial of the Motion To Dismiss
Following the completion of the pretrial hearing, the trial court (Judge Hunter) correctly noted the first issue was whether defendant had met his initial burden to establish prejudice as a result of the delay. The court ruled that it would defer ruling upon the motion to dismiss until after trial. It reasoned that after hearing all of the evidence, it would be better positioned to determine whether defendant’s right to a fair trial had been impaired by the delay. This decision was well within the trial court’s discretion (People v. Boysen (2007) 165 Cal.App.4th 761, 781) and defendant does not contend to the contrary.
The matter proceeded to trial. However, the jury deadlocked, eleven to one in favor of guilty. The court declared a mistrial and continued the case for a ruling on the motion to dismiss.
A reporter’s transcript of the first trial is not included in the record on appeal.
At a subsequent hearing, defense counsel and the prosecutor orally argued the motion. The court (Judge Hunter) denied the motion, explaining as follows:
Defense counsel indicated he had submitted two declarations in support of the motion. However, the record on appeal includes only the one declaration set forth above in our factual summary.
“Basically, a motion like this, the ultimate inquiry in determining whether or not there is a due process violation is whether or not the defendant has been denied a fair trial.... The Court has to do inquiry whether or not that [33-year] delay was purposeful for some sort of tactical advantage versus some sort of negligence on the part on behalf of the agencies.
“In this situation if it was purposeful, then the standard of showing prejudice would be significantly lower.... I don’t think there was any purposeful delay of this case in order to show some sort or to have some sort of a tactical advantage.
“The Court then has to take a look at... was there any prejudice. And the Court has to see if there is any prejudice, do some sort of a balancing the harm against the defendant versus the justification for the delay.
“The defendant has to affirmatively show actual prejudice. In this case counsel filed a motion and set forth some areas in which there is prejudice. And one of them was that the Detective Jerry Rogers had died. There’s no showing that any actual prejudice resulted as a result of that.
“We had [Detective] Pagenkopp... the partner of Detective Rogers, apparently, and I don’t see any prejudice that resulted from Detective Rogers’ [absence] has been shown with regard to that.
“Then another aspect that was pointed out was that Alvino Love had died before this case came to trial. I don’t see that any evidence has been presented that the defendant had suffered any prejudice as a result of that.
“It would be just pure speculation that he would have given exculpatory testimony. And if I were to give an educated guess based on what I’ve learned through this matter about Mr. Love, my educated guess would be that he wouldn’t want to talk in this situation.
“I do believe the police went to go speak with him and he told them to go pound sand and he wasn’t going to talk to them.
“So I think it’s speculation... whether or not Mr. Love would have provided helpful information for [defendant].
“Another area counsel had pointed out was they were unable to confront Miss Carraway with regard to the allegations that she made in 1993.... I think in this trial, and that’s why it was helpful to do a trial, counsel was able to cross-examine Miss Carraway.
“Even though this happened 34 years ago, she actually had a pretty good memory of that. Counsel was able to ask about her drugs, her psychiatric issue, and all those factors did come out in front of this jury.
“So I don’t find that there was any prejudice with regard to that established.
“Then there’s also some mention that Miss Carraway’s sister who was a confidante of Miss Carraway, that she had died at some point.
“Again, there’s nothing to indicate that she would have given any type of information that would have been helpful to [defendant]. I think there was some testimony that [Carraway] had told her sister about what happened only after the police came and interviewed her at her home, if I’m not mistaken with regard to the testimony.
“And again, it’s speculation with regard to whether or not the defendant had suffered any prejudice with regard to that.
“Counsel, in your [oral argument], you made a claim that the defendant doesn’t even remember that night.... That’s not part of [any] declaration. It’s not something, it’s not signed under penalty of perjury by the defendant....
“So again, that is speculation. And the Court doesn’t have that before me.
“But in this situation, then, I don’t see the prejudice based on the facts of this case. However, if for some reason, that some Court when looking at that can come up with perhaps there might be some prejudice, that prejudice would be minimal.
“Miss Carraway was able to testify and the original investigator [Detective Pagenkopp] was able to testify. The print person [Lui] was able to testify. So the Court would then go ahead and do some sort of a balancing with regard to this situation.
“And there was some delay. And the delay, the Court took a look at the history of this case and... I think there has been some progress made in the field of documenting fingerprints... how it’s put into a database, how it is run through the system, how they do the analysis. I think that has definitely become more advanced throughout the years.
“And with regard to second-guessing how an agency allocates resources, in this situation we had, I think, two of the officers testified. I think Detective Shepard and I can’t remember the other officer testified they were part of a cold case program. It was developed to look over, I believe, one number I heard was greater than 6, 000 cases.
“And they were on a grant and the priority was the DNA cases. And they came across [defendant’s] case, and... in 2005 it was given to DOJ to do the analysis....
“A hit came back with regard to [defendant]. His name was then identified and, yes, there was a delay from 2005, I think, to 2007 with regard to doing further investigation.
“But that officer also testified when he came on the case there were a substantial amount of cases that he had to go through. And this was one of these things where I don’t think it’s enough to argue that well, if they gave this case a higher priority, then perhaps it would have been a little bit different and he would have been identified sooner.
“I don’t find – I find their justification for delay based on the limits of manpower, et cetera, not to rise to a level that would warrant the Court granting the motion.
“And this is after looking at any type of potential prejudice versus the justification for delay.
“So the Court is going to find that the justifications for the delay based on the testimony of the officers, as recounted over the last 35 years, outweighs any showing of prejudice that the defendant has presented. So I will deny your due process motion.” (Italics added.)
The court then set the matter for retrial.
7. The Trial Court’s Second Denial of the Motion to Dismiss
The case was retried before a different bench officer: Judge Webster. Before the second trial began, defendant renewed his motion to dismiss. The motion was supported solely by another declaration executed by defense counsel. In this declaration, counsel averred: “In 1993, Phyliss Carraway was arrested with regard to this murder. She implicated [defendant] and her ex-boyfriend Alvino Love. Subsequently, the police interviewed and took fingerprint and DNA samples from Mr. Love while he was in prison. Even though [defendant] was easily located in Los Angeles or in the state prison system, he was not informed that he was a suspect until his arrest in December 2007.... [¶] Upon information and belief, [defendant] did not know that he was a suspect in this murder. [¶] [He] has always lived openly with his mother or at other addresses. At no time was [he] aware of a criminal case filed against him.” (Boldface deleted.) The declaration concluded: “I am unaware of any justification for the delay in prosecution in this case. As a result of the delay, [defendant] has suffered prejudice.Such prejudice is presumed under the law and includes, but is not limited to, loss of evidence, faded memories, and loss of witnesses.” (Italics added.) Judge Webster deferred ruling on the motion and trial commenced.
After Lui, the fingerprint expert from the DOJ, testified during the People’s case-in-chief, defense counsel renewed the motion to dismiss. Relying upon Carraway’s arrest in 1993 for Johnston’s murder and Lui’s identification in 2005 of defendant’s fingerprints, defense counsel argued that the delay in charging defendant was unjustified. He claimed: “[B]asically at every point they’ve dropped the ball, stalled or not proceeded efficiently.” On the issue of prejudice, defense counsel simply stated: “[T]he time that’s passed, you know, possible alibis or witnesses you know, maybe the defense could have found back in ‘93 versus 25 years later, I’m sure 15 years later is significant.” (Italics added.) Defense counsel acknowledged “that we made a previous record in Judge Hunter’s court. And I’m sure that [a] transcript can be ordered, if necessary.”
The prosecutor asked Judge Webster if he “want[ed] to have a new evidentiary hearing.” The court responded: “You can summarize it. That’s all.” Defense counsel did not object to this procedure. The prosecutor summarized the evidence that had been previously presented to explain why the fingerprint identification had not been made earlier. Defense counsel did not take issue with the prosecutor’s summary.
Judge Webster denied the motion. He explained:
“And it seems to the court one, that based upon this fingerprint issue with respect to technology and the fact that there’s little information going with respect to who this person was, there was no way that [defendant] could have... been prosecuted before then unless everybody came up, confessed they did it and voluntarily submitted themselves to the authorities for prosecution, which obviously didn’t happen.
“And two, there’s been no showing that two, these possible witnesses could have been, according to if you believe Ms. Carraway’s statement, there was only three people involved in this: her, [defendant] and Love.... But beyond that, whether it had been some additional witnesses that could have basically shed light and maybe their lack of testimony prejudiced [defendant] is pure conjecture or speculation at best because we don’t have that.
“So it just seems to the court based upon what I have read and [decisional law cited by the parties], what I know about this particular case from reading the file and from testimony, I don’t see where there’s a real problem. I don’t think [defendant’s] speedy rights were violated in any form or substance. So that will be denied.” (Italics added.)
B. Discussion
1. Applicable Law
“The due process clauses of the Fifth and Fourteenth Amendments to the United States Constitution and article I, section 15 of the California Constitution protect a defendant from the prejudicial effects of lengthy, unjustified delay between the commission of a crime and the defendant’s arrest and charging. [Citations.] Such prearrest or precharging delay does not implicate the defendant’s state or federal speedy trial rights (U.S. Const., 6th Amend.; Cal. Const. art. I, § 15), as those rights do not attach until a defendant has been arrested or a charging document has been filed. [Citation.]” (People v. Cowan (2010) 50 Cal.4th 401, 430.)
Given these legal principles, defendant’s reliance upon cases discussing denial of the federal or state constitutional right to a speedy trial is misplaced and warrants no discussion.
Consequently, when, as here, a defendant complains about a delay between the crime and his arrest, he is “not without recourse if the delay is unjustified and prejudicial. ‘[T]he right of due process protects a criminal defendant’s interest in fair adjudication by preventing unjustified delays that weaken the defense through the dimming of memories, the death or disappearance of witnesses, and the loss or destruction of material physical evidence.’ [Citation.] Accordingly, ‘[d]elay in prosecution that occurs before the accused is arrested or the complaint is filed may constitute a denial of the right to a fair trial and to due process of law under the state and federal Constitutions. A defendant seeking to dismiss a charge on this ground must demonstrate prejudice arising from the delay. The prosecution may offer justification for the delay, and the court considering a motion to dismiss balances the harm to the defendant against the justification for the delay.’ [Citation.]” (People v. Nelson (2008) 43 Cal.4th 1242, 1250, italics added.) The trial court’s ruling denying a motion to dismiss is reviewed for abuse of discretion and its underlying factual findings are reviewed for substantial evidence. (People v. Cowan, supra, 50 Cal.4th at p. 431.)
Thus, it is clear that in moving to dismiss based upon a claim that the due process right to a fair trial has been denied because of an unreasonable delay in arresting and charging the accused, the defense first must establish prejudice as a result of the delay. Defendant therefore errs in urging that “[t]he length of the delay raises a presumption of prejudice” that the prosecution was obligated to rebut. Further, his argument that “given the length of the delay in this case, the number of years alone should be enough to demonstrate prejudice” is contrary to decisional law. The California Supreme Court has expressly declined to adopt such a rule. It explained that “‘[t]he statute of limitations is usually considered the primary guarantee against bringing overly stale criminal charges, ’ and there ‘is no statute of limitations on murder.’ [Citation.] Presuming prejudice would be inconsistent with the Legislature’s declining to impose a statue of limitations for murder, among the most serious of crimes. To avoid murder charges due to delay, the defendant must affirmatively show prejudice.” (People v. Nelson, supra, 43 Cal.4th at p. 1250, italics added.)
Penal Code section 799 provides that there is no statute of limitations on any offense punishable by death, life imprisonment without possibility of parole, or life imprisonment.
2. Prejudice to Defendant from the Delay
The first issue is whether defendant met his burden of establishing prejudice. “Prejudice may be shown by ‘“loss of material witnesses due to lapse of time [citation] or loss of evidence because of fading memory attributable to the delay.”’”] (People v. Cowan, supra, 50 Cal.4th at p. 430.) We review the trial court’s factual findings about prejudice under the deferential substantial evidence standard. (Id. at p. 431.)
In the present case, two trial judges found that defendant had not met his burden to establish prejudice. The first ruling occurred after the pretrial hearing had been conducted and a jury, having heard all of the evidence, deadlocked. The second ruling occurred during the second trial after much of the evidence had been presented and after the prosecutor had summarized the evidence presented at the pretrial hearing about the reasons for the delay in charging and arresting defendant. Thus, we can consider all of this evidence in evaluating defendant’s appellate contention. (See People v. Cowan, supra, 50 Cal.4th at p. 431.)
In this appeal, defendant claims he “has demonstrated prejudice occasioned by the loss of three witnesses as to whom he would otherwise be able to exercise his right to confront and cross-examine.” We consider each witness separately.
In the trial court, defendant advanced other claims of prejudice such as the death of Carraway’s sister and the existence of a rumor (that defendant was apparently unable to investigate) that Johnston had been murdered by her gardener. Defendant’s failure to pursue these arguments on appeal—claims that the trial court rejected (explicitly or implicitly) -- constitutes an abandonment of those claims. (People v. Hill (1992) 3 Cal.App.4th 16, 33, fn. 5 [an issue is waived if it has “neither been tendered nor briefed”].)
The first witness is Love, defendant’s accomplice in Johnston’s murder. Defendant argues that Love’s death (apparently in 2006) deprived him of the ability “to confront and cross-examine Love about [defendant’s] presence or whatever role he might have played at the scene of the crime.... [Defendant] could not even offer Love’s demeanor to the jury as something to consider on the question of [defendant’s] guilt or innocence, or level of culpability, in the case.” This argument presupposes that Love would have waived his privilege against self-incrimination and testified on defendant’s behalf. In other words, for reasons neither explained by defendant nor found in the record, we are asked to assume that Love would have given testimony favorable to defendant regarding Johnston’s murder. Not surprisingly, the trial court did not find this approach persuasive. It held that it was speculative to believe that Love, who Carraway had testified had agreed to commit the robbery and was in Johnston’s bedroom with defendant when Johnston was murdered, would have testified on defendant’s behalf. Defendant attacks this finding by arguing that “the trial court was speculating just as much as anyone else in connection with this case.” Not so. As we now explain, the trial court’s finding was based on solid evidence.
In his opening brief, defendant states that even if the trial court was correct that Love would not have testified on his behalf, “Love’s refusal to testify could have been enough to raise a reasonable doubt regarding the role [defendant] might have played in the offense.” We disagree. For one thing, Love would have invoked the privilege against self-incrimination in a hearing conducted outside of the jury’s presence. (People v. Holloway (2004) 33 Cal.4th 96, 129-132.) Further, contrary to what defendant suggests, the jury could not have considered Love’s invocation of the privilege of self-incrimination as evidence. (People v. Mincey (1992) 2 Cal.4th 408, 440-442; Evid. Code, § 913.)
Detective Aspinall testified that after he located Carraway in 1993, he and his partner visited Love in state prison. They attempted to interview Love about Johnston’s murder. Love refused to speak with them and provided no information about defendant. Detective Aspinall characterized Love’s demeanor as “hostile.” In addition, when the detective and his partner attempted to execute a search warrant requiring Love to provide samples of his saliva, blood and pubic hair—evidence that could potentially link him to Johnston’s murder—Love became so hostile that prison personnel were forced to restrain him to the bed so that the samples could be taken. This testimony constitutes substantial evidence to support Judge Hunter’s finding that Love “told [Detective Aspinall and his partner] to go pound sand and he wasn’t going to talk to them” so that it was “pure speculation” to believe Love “would have provided helpful information for [defendant].”
The second witness about whose absence defendant complains is Detective Jerry Rogers. Detective Rogers had initially investigated the case with Detective Pagenkopp. Detective Rogers died sometime prior to defendant’s arrest. Defendant asserts his inability to call Detective Rogers as a witness prejudiced him. We are not persuaded.
The record does not indicate the date of Detective Rogers’ death.
At defendant’s (second) trial, Detective Pagenkopp testified in detail about the initial investigation. He explained that Johnston had been found with “multiple stab wounds” in a “large pool of blood”; that her bedroom had been “completely ransacked”; and that two bloody knives were found in the kitchen sink. As investigating officer, he directed technicians from the Scientific Investigation Division to process the crime scene for fingerprints, to take blood samples and to secure the area. He identified photos and diagrams of the crime scene that were admitted into evidence. Lastly, he explained that he never received “any leads at all” on the case but that “[a]ny time names would surface, suspects arrested in the area, any similar ransacking, burglaries, we collect[ed] information and r[a]n their fingerprints against those lifted at the crime scene with negative results.” Detective Pagenkopp worked on the case until “1979, 1980.”
In light of Judge Hunter’s finding, made when she denied the motion to dismiss after defendant’s first trial, that Detective Rogers’ absence did not prejudice defendant, it is reasonable to assume that Detective Pagenkopp gave substantially similar testimony at the first trial. Defendant has never suggested to the contrary.
Defense counsel’s brief cross-examination of Detective Pagenkopp posed no questions about Detective Rogers’ role in the investigation.
In the pretrial hearing conducted before Judge Hunter on defendant’s motion to dismiss, defense counsel never asked Detective Pagenkopp about Detective Rogers’ role in the investigation.
The trial court found that defendant had failed to make any “showing that any actual prejudice resulted as a result of [Detective Rogers’ absence from the trial].” Substantial evidence supports that finding. For one thing, Detective Rogers was not a percipient or material witness to the murder but simply one of the case’s original investigators. Thus, at trial his “testimony was ‘not of crucial significance’ to the prosecution’s case” because the case rested primarily on Carraway’s testimony about defendant’s actions and the presence of defendant’s fingerprints inside of Johnston’s home on the front door knob. (People v. Cowan, supra, 50 Cal.4th at p. 433.) Further, because Detective Pagenkopp testified at defendant’s trial and was subject to cross-examination, Detective Rogers’ death did not deprive defendant of the ability to explore any aspect of the initial investigation of the crime scene or the early police efforts to identify suspects. In other words, any loss occasioned by Detective Rogers’ death was cured by Detective Pagenkopp’s testimony. Significantly, defendant has never explained with any specificity, either in the trial court or in this appeal, how Detective Rogers’ presence at trial could possibly have inured to his benefit. Instead, he simply states: “Even if all [he] got out of confronting [Detective Rogers] was the chance to show [his] demeanor to the jury, the passage of time removed that opportunity completely.” This speculative musing is insufficient to discharge defendant’s burden to establish prejudice as the result of the loss of Detective Rogers as a witness.
Next, defendant makes a passing reference to the fact that Dr. Robert Zedelis, the medical examiner who performed Johnston’s autopsy in 1975, did not testify at trial. If this reference constitutes a claim that Dr. Zedelis’ absence from trial prejudiced him, the claim has not been preserved for appeal. Defendant did not raise it in the trial court and thus did not establish that Dr. Zedelis’ absence either was in any way attributable to the delay in charging and arresting him or that it prejudiced him. In any event, Dr. Juan Carrillo, another medical examiner, testified without objection from defense counsel. Dr. Carrillo explained that based upon his training and experience, he was qualified to and had examined Dr. Zedelis’ autopsy report. Dr. Carrillo then proceeded to render an opinion about the cause of Johnston’s death (an issue not disputed at trial). Defendant makes no attempt to explain why Dr. Carillo’s testimony was insufficient on the issue. Thus, any claim that defendant was prejudiced by Dr. Zedelis’ absence must fail.
Lastly, defendant advances the general argument that “‘particularized trial prejudice’ can be shown only in his inability to pinpoint through faded memory where he might have been or who he might have been in contact with on August 21, 1975” and that as a result of the delay he was “unable to mount a defense to the charges” because “potential witnesses and evidence were gone.” We are not persuaded. As Judge Hunter noted, defendant failed to offer a declaration averring his loss of memory about his actions on August 21, 1975. (Compare People v. Cowan, supra, 50 Cal.4th at p. 429 [defendant presented “his own sworn declaration that he had ‘no present memory due to the lapse of time as to his whereabouts or activities’” for the days when the murders occurred ten years earlier].) Further, defendant failed to advance a specific defense theory and failed to explain how the delay impaired his ability to prove that defense. We therefore reject this claim of prejudice as unsupported speculation. (See Shleffar v. Superior Court (1986) 178 Cal.App.3d 937, 946 [“A particular factual context must be established in which a specific claim of prejudice can be evaluated.”].)
In sum, substantial evidence supports the trial courts’ findings that defendant failed to establish prejudice as a result of the delay.
3. Justification for the Delay
As explained earlier, the burden does not shift to the People to establish justification for the delay unless the defense first establishes prejudice. Here, defendant failed to discharge that burden. But because the trial court, out of an abundance of caution, proceeded to reach and resolve the issue of justification, we likewise discuss it. Its finding that the delay was justified will be upheld if supported by substantial evidence. (People v. Boysen, supra, 165 Cal.App.4th at p. 777; People v. Dunn-Gonzalez (1996) 47 Cal.App.4th 899, 911-912.)
From the outset, LAPD actively investigated Johnston’s murder but was limited because it never received any leads on the case. In addition, LAPD was hampered by the then-existing technology. Although fingerprint evidence was taken from the crime scene in 1975, LAPD had no computer data base in which to enter the evidence. As a result, it did not have the ability to run the fingerprints against other prints obtained by law enforcement. Instead, to determine whether the prints matched a potential suspect, a manual comparison had to be made. LAPD did pursue this course of investigation, making comparisons to the prints of “at least 30 to 40” people whenever any potential suspect was found. The case remained open for four or five years until Detective Pagenkopp left the homicide unit.
In 1993, the case was reopened. The crime scene fingerprints were run through a recently acquired computer data base and Carraway was identified. This delay in matching the prints to Carraway is excusable because it was due to the limits of existing fingerprint matching technology. (People v. Catlin (2001) 26 Cal.4th 81, 109 [delay justified because of limitations in forensic science]; People v. Archerd (1970) 3 Cal.3d 615, 641-643 [developing medical and forensic techniques justified 11-year delay in filing murder charge].) The police then interviewed Carraway and, for the first time, learned that defendant and Love had been involved in the murder. However, Carraway was unable to give any specific identifying information about either man other than race and approximate age. The police successfully located Love and attempted to interview him about the murder but he refused to cooperate. The police used multiple data bases to locate defendant but could not find him. Their efforts were hindered both by the common nature of his name and by the lack of his birthday and social security number. In addition, during the mid 1990’s, the police ran in their computer data base what were subsequently identified as defendant’s prints several times but no match was made, in all likelihood because the copies of defendant’s fingerprints already in the system were not sufficiently clear.
In 2001, LAPD formed a cold case unit. DNA evidence taken from the victim was analyzed but this evidence pointed to no specific suspect. The police made repeated efforts to find defendant but to no avail. In 2005, defendant was tied to the murder by a positive fingerprint match. In December 2007, the cold case unit assigned the investigation to Detective Abdul who reviewed it and soon presented it to the prosecutor. In March 2008, defendant was arrested for Johnston’s murder.
In arguing that the delay in charging him was unjustified, defendant focuses on the 15 years that passed after Carraway identified him in 1993. He argues that “all the evidence presented at [his] trial was available” in 1993 and that “the People failed to offer any reasonable, believable, or satisfactory explanation for the fifteen year delay.” He concedes that the record does not “demonstrate specific bad faith on the part of the prosecution” but urges that it “demonstrates, at the very least, negligence on the part of the prosecution.” We disagree.
Contrary to what defendant suggests, the prosecution did not have sufficient evidence to charge him in 1993 when Carraway identified him. For one thing, she was an accomplice and any testimony she would give at trial would require corroboration. (Pen. Code, § 1111.) At that point no corroborating evidence existed because the fingerprint identification had not yet been made. Furthermore, defendant could not be found. LAPD made multiple unsuccessful efforts to locate defendant after interviewing Carraway in 1993. After the cold case unit was formed in 2001, LAPD reopened the case and again tried unsuccessfully to identify and locate defendant. In light of law enforcement’s consistent efforts to locate defendant and the cold case unit’s high volume of cases (6, 000 – 9, 000) and internal priorities (such as the need to process DNA cases first), substantial evidence supports the trial court’s implicit finding that LAPD had not been negligent in its investigation. “A court may not find negligence by second-guessing how the state allocates its resources or how law enforcement agencies could have investigated a given case. ‘[T]he necessity of allocating prosecutorial resources may cause delays [to be considered] valid under [the United States Supreme Court’s analysis in United States v.Lovasco (1977) 431 U.S. 783 of prearrest delays]. Thus, the difficulty in allocating scarce prosecutorial resources (as opposed to clearly intentional or negligent conduct) [is] a valid justification for delay....’ [Citation.] It is not enough for a defendant to argue that if the prosecutorial agencies had made his or her case a higher priority or had done things a bit differently they would have solved the case sooner.” (People v. Nelson, supra, 43 Cal.4th at pp. 1256-1257.)
To a large extent, defendant attempts to avoid this conclusion by arguing that the police could have quickly located him once Carraway had identified him because of his lengthy criminal history. Defendant relies upon his pre-conviction probation report that recites that, in addition to numerous misdemeanor convictions, he suffered felony convictions in 1977, 1983 and 2003 for which he served time in state prison. This argument is not persuasive for two independent reasons.
The first reason is that it was not raised below. The report was prepared in May 2008, seven months before the trial court conducted the pretrial hearing on the motion to dismiss. But defendant never asked the trial court to consider the information in the pre-conviction probation report. We therefore cannot consider this information in determining whether the trial court’s finding of justified delay is supported by the record. Appellate review of a trial court ruling is limited to consideration of the evidence presented to the trial court at the time it made the contested ruling. (People v. Hernandez (1999) 71 Cal.App.4th 417, 425; People v. Jacobo (1991) 230 Cal.App.3d 1416, 1424.)
As set forth earlier, defense counsel offered two declarations in support of the motion to dismiss. Neither declaration referenced the probation report. The first declaration, submitted to Judge Hunter, included the vague averment that “[i]n the late 1970s, ” defendant and Love “were convicted and sentenced to prison for facts alleging kidnapping and rape that occurred in Los Angeles.” The second declaration, submitted to Judge Webster, included the conclusory averment that defendant had been “easily located in Los Angeles or in the state prison system.”
The second reason is that the information in the probation report does not support defendant’s claim that the police could have found him earlier. The report indicates that defendant uses nine aliases (plus seven variations on his birth name), four false birth dates, two driver’s licenses, and two Social Security numbers. This information, in fact, supports the conclusion that LAPD’s inability to locate him sooner was not the result of its negligence but the result of defendant’s affirmative efforts to avoid apprehension by maintaining multiple identities.
“In sum, the investigation of the [Johnston murder] was not perfect; no investigation is. Like the trial court, however, we find no evidence that law enforcement or the prosecution deliberately delayed the investigation in order to gain a tactical advantage over defendant. Nor do we find evidence of negligence.” (People v. Cowan, supra, 50 Cal.4th at p. 436.)
4. Conclusion
“[B]ecause ‘due process is ultimately tied to the fundamental conceptions of justice that lie at the base of our civil and political institutions and which define the community’s sense of fair play and decency, ’ [citation], it is also shown to be ‘properly offended when, with little or no justification, the government waits decades to bring a prosecution and that delay has demonstrably placed the defense at a profound and perhaps fatal disadvantage’ [citation].” (People v. Mirenda (2009) 174 Cal.App.4th 1313, 1329.) This is not such a case. Defendant failed to demonstrate prejudice as a result of the delay and failed to establish that the delay was unjustified.
Two of the law enforcement personnel involved in the initial investigation of the case (Officer Carter and Detective Pagenkopp) testified at defendant’s trial. Further, the delay did not impair defendant’s ability to attack the key incriminating evidence offered against him: Carraway’s testimony and the fingerprint evidence. He fully cross-examined Carraway and argued at length to the jury that she was not credible. In addition, as will be explained in detail when we discuss defendant’s second contention, the defense was given wide latitude to attack the fingerprint evidence, both in cross-examination and closing argument. Accordingly, the trial court did not abuse its discretion when it denied defendant’s motions to dismiss due to prearrest delay.
For instance, defense counsel argued:
II. EXCLUSION OF EXPERT WITNESS TESTIMONY
Defendant’s next contention is that the trial court committed prejudicial error when it “excluded the testimony of an expert witness [Professor Simon Cole] that the defense wanted to call in order to question the reliability of fingerprint evidence.” (Capitalization omitted.)
A. Factual and Procedural Background
1. The Prosecution’s Evidence
As indicated earlier, the prosecution presented two fingerprint witnesses at trial. We now set forth their testimony in detail in order to properly evaluate defendant’s contention.
Officer Carter testified how he lifted the latent fingerprints from the crime scene in 1975. He explained that law enforcement still uses the same methodology and that the only thing that has changed is the powder or chemical used to lift the print. On cross-examination, Officer Carter conceded that the clarity and quality of fingerprint evidence can be affected by the type of surface on which the prints are located, the presence of dirt or moisture on the surface, and the amount of or the direction of the pressure applied when the latent prints are lifted. Officer Carter did not remember the type of surface from which he lifted defendant’s prints.
Lui testified to the match made between the crime scene prints and defendant’s fingerprints. Lui has been a fingerprint analyst for the DOJ for 18 years. She is a court-qualified expert who received 200 hours of classroom training and 40 hours of on-the-job training. She currently performs on-the-job training for other DOJ employees.
In January 2005, she ran latent prints from the Johnston crime scene through the computer. She found a possible match and pulled the actual fingerprint card from the records to compare it to the latent prints. In making a comparison, eight corresponding points are sufficient to find a match. One of the latent prints had 12 match points and the other had 10 match points to defendant’s fingerprints. Lui found no dissimilarities between the latent prints and defendant’s prints. She was “positively certain” that the two latent prints matched defendant’s fingerprints (the right middle finger and the right ring finger). She testified that “there’s no other chance that... someone other than [defendant] could have left” the prints at the crime scene. “[A]ll other possible sources have been eliminated” by the comparison. Lui also compared the crime scene prints to a fingerprint set she took from defendant. They matched. Lastly, as part of DOJ protocol, another analyst compared the latent prints and defendant’s prints. He also found a match.
During cross-examination, defense counsel asked Lui how she could be certain of the match. She responded: “We don’t have scientific proof that the fingerprint is unique because we cannot compare the latent print on People’s exhibit 20 [defendant’s prints found on the inside door knob of Johnston’s home] to everybody’s fingerprints in the world.” Lui explained that the premise of fingerprint identification is that each fingerprint is “unique and permanent because of ridge formations [that] are formed during the fetal stage of life, and no two fingerprints have ever been found to be the same.”
When asked if any data or any scientific research supported the assertion that each individual’s fingerprints are unique, she replied: “[T]he medical research and the observations and the statistics modeling and the daily AFIS searching supports [the theory] that the fingerprints are unique and can be used as an identification.... [¶] You can read it in David Ashborn’s book named Ridgology. It’s mentioned in our classification manual by the California Department of Justice. It’s also in The Science of Fingerprint by the F.B.I. and The Friction Ridge Skin by James Calder. And also in the... Forensic Identification Journal.” In addition, Lui named four scientists who support the premise that fingerprints are unique and permanent.
Defense counsel then asked Lui “who” supported the assertion that individualized fingerprint identification is accurate. She replied that the scientific premise about the “biological uniqueness and permanency [of fingerprints] is accepted by society over 100 years. And there’s no way to fingerprint everybody in the world, so we cannot have scientific proof of that. But since it’s accepted by the society and it’s supported by us, ... it is used as a tool of identification.” She had never read or heard of a study that found that “fingerprints from two different people to be the same.” Such a claim would be “astounding” and Lui was confident she would have heard of it if it had ever been made.
2. The Defense Proffer
During trial, defense counsel informed the court that he wanted to present expert testimony from Simon Cole who believed that “there is as yet no adequate scientific data on the reliability of latent print individualization.” That is, defendant sought to use Cole’s testimony not to challenge the reliability of the fingerprint comparison made in this case but, instead, to challenge the reliability of fingerprint identification in general. Defense counsel stated that “[t]his is not a Kelly-Frye hearing where we’re challenging whether or not fingerprints are a science.” He analogized to calling an expert witness to testify about the factors that may affect the accuracy of an eyewitness identification. (See, e.g., People v. McDonald (1984) 37 Cal.3d 351.) The prosecutor objected to the proffered testimony. The court agreed to conduct an Evidence Code section 402 hearing.
In response to a question from the trial court, defense counsel stated he had made a “tactical decision” not to call Cole as a witness in defendant’s first trial. At some undesignated point, the defense filed an ex parte motion seeking appointment of Cole as an expert witness. Judge Cheroske granted the motion.
In the hearing, Cole testified that he is a tenured professor at the University of California, Irvine. He received a Ph.D. in science and technology studies which “encompasses areas such as sociology of science and history of science and philosophy of science.” He has never worked in law enforcement, never lifted a fingerprint, and never made a fingerprint comparison. He is not qualified to lift or compare fingerprint evidence. He is not taking any courses to learn how to lift or compare fingerprints in order to qualify in court as a fingerprint expert.
Cole has conducted no studies to measure the accuracy of latent print identification. In particular, he never conducted a study of a particular jurisdiction (e.g., Orange County or Los Angeles County) to see how many cases (if any) were reversed on appeal because of irregularity or problems with fingerprint evidence.
Cole’s belief that fingerprint evidence is not reliable is based upon two factors. The first is that he has searched for but found no studies validating the accuracy of fingerprint identification. The second is the contents of the prepublication version of a report from the National Academy of Sciences entitled “Strengthening Forensic Science in the United States.” The report was compiled by a committee of forensic scientists, statisticians, judges and lawyers but no fingerprint examiners. The report indicates that although fingerprint evidence has been used in court for 100 years, there is insufficient information to conclude that fingerprint comparison evidence is accurate.
The report was not introduced into evidence and is not in the record on appeal.
During cross-examination, defense counsel had asked Lui if she was familiar with this report. She was not.
Cole has testified in approximately eight jury trials and “numerous pretrial hearings.” However, Cole did not explain the nature of his testimony in those proceedings.
3. The Trial Court’s Ruling
After reviewing Cole’s resume, listening to Cole’s testimony, and hearing argument from counsel, the trial court ruled that Cole could not testify in defendant’s trial because his proposed testimony was not relevant. The court explained:
“I don’t doubt and I have nothing but the utmost respect for Dr. Cole’s scholarship and his academic achievements....
“It’s just the fact that I don’t see the relevancy and materiality from the standpoint of this particular case.... This [trial] is the search for the truth. And it’s also based upon standards and evidence and other procedures that are basically accepted by the courts. And it just seems that his testimony is not relevant in this particular case, because he doesn’t do lifts, he hasn’t done comparisons, he knows nothing about [defendant] and the prints. So I don’t see the relevancy or the materiality [of his testimony]....
“I just don’t think this is the case where he’s really qualified to testify in this case, because I don’t think his expertise, although impressive, is relevant to the issue in this case.”
The trial court stated that if requested, it would appoint a fingerprint expert for the defense to challenge the accuracy of Lui’s fingerprint comparison. Defense counsel did not pursue that option but, instead, reiterated his desire that Cole testify.
In addition to precluding Cole’s testimony, the court declined to use a special jury instruction submitted by defense counsel about fingerprint evidence. The court explained that the instruction (which is not in the record on appeal) was argumentative and therefore not “a usable jury instruction that needs to be given to the jury.” The court stated that the pattern instructions about evaluating expert witness testimony and lay witness opinion testimony (CALCRIM Nos. 332 and 333) adequately covered the issues.
Defendant’s brief, noting that the trial court stated the instruction would “be made part of the court’s record, ” explains that it sought to augment the record to include the instruction but that the Clerk of the Superior Court issued a certificate that the instruction is not in the superior court’s record. Defendant, however, has not pursued the matter. (Cal. Rules of Court, Rule 8.155(c) [procedure to correct the record].) In any event, the omission of the proposed instruction from the record is not critical because defendant has not assigned as error the trial court’s ruling that it would not submit the instruction to the jury.
4. Discussion
The trial court has broad discretion to determine the relevancy and admissibility of evidence. (Evid. Code, § 352.) A claim that it improperly precluded expert opinion testimony is reviewed under the deferential abuse of discretion standard. (People v. Page (1991) 2 Cal.App.4th 161, 187.) Consequently, its ruling “will not be disturbed except on a showing [it] exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice.” (People v. Rodriguez (1999) 20 Cal.4th 1, 9-10.)
Here, the trial court did not abuse its discretion in precluding Cole’s testimony. As the trial court observed, the relevant issue was whether the fingerprints found on the inside doorknob to Johnston’s home belonged to defendant. Cole had no specific opinion(s) to offer on that issue. He was not qualified to lift fingerprints and therefore could not (and did not offer to) critique Officer Carter’s work at the crime scene when he lifted the prints subsequently identified as belonging to defendant. Because Cole was not qualified to make a fingerprint comparison, he could not (and did not offer to) to examine the prints found in Johnston’s home and opine whether they were defendant’s prints. Lastly, he was not familiar with the specific methodology used to compare fingerprints and thus could not legitimately critique Lui’s comparison. In view of all of these circumstances, the trial court did not abuse its discretion in finding that Cole’s testimony—testimony that, according to defendant, would merely “explain to the jury that questions may exist with respect to the identification of a suspect through the use of fingerprints”—lacked probative value. (Italics added.)
Citing Chambers v. Mississippi (1973) 410 U.S. 284, defendant contends, as he did below, that the trial court’s ruling precluding Cole’s testimony violated his constitutional right to present a defense. We disagree. “A defendant has the general right to offer a defense through the testimony of his or her witnesses [citation], but a state court’s application of ordinary rules of evidence—including the rule stated in Evidence Code section 352—generally does not infringe upon this right [citations].... Although the high court in Chambers determined that the combination of state rules resulting in the exclusion of crucial defense evidence constituted a denial of due process under the unusual circumstances of the case before it, it did not question ‘the respect traditionally accorded to the States in the establishment and implementation of their own criminal trial rules and procedures.’ [Citation.]” (People v. Cornwell (2005) 37 Cal.4th 50, 82.)
The trial court’s decision to exclude Cole’s testimony—testimony that defendant urges “would show fingerprint evidence was not necessarily invincible, and would provide a basis for a critical analysis of the prosecution’s evidence”—was not so vital to the defense that its exclusion violated defendant’s right to due process.
As explained above, defendant did not establish that the proffered expert testimony would have significant probative value in the case.
Further, the trial court’s ruling did not preclude defendant from presenting the defense that the fingerprints found in Johnston’s home were not his. The trial court gave defense counsel broad latitude in his cross-examinations of Officer Carter and Lui. Counsel used their answers to argue to the jury that it should question the accuracy of Lui’s fingerprint comparison. For instance, counsel argued that the multiple similarities Lui found between the latent print and defendant’s fingerprint exemplar may “narrow it down” but are “not a match. That’s something else.” He pointed out that Officer Carter had testified that certain factors can affect the lifting of latent prints but that he had “no notes about the quality of the surface from which the prints were lifted.” Counsel explained that exemplars are “complete prints” taken under “controlled circumstances” but latent prints “can be just portions of a print” lifted from an “unstable surface” in “somewhat fragile situations” and “distort[ed]” by the specific environmental circumstances. Lastly, defense counsel argued fingerprint identification was not a “science” that “give[s] you absolutes.... [¶] [F]ingerprint[s] aren’t foolproof, folks. Local and national cases have shown us that.” Taking all of these circumstances together, defense counsel urged “there’s reasonable doubt all over this case.”
In sum, exclusion of Cole’s testimony did not violate defendant’s due process right to present a defense.
III. DENIAL OF DEFENDANT’S REQUEST
TO CONDUCT A FITNESS HEARING
1. Legal and Factual Background
In 2000, the electorate approved Proposition 21, making a number of changes to the laws applicable to minors accused of committing crimes. As relevant to this case, it broadened the circumstances in which a prosecutor can file charges in the criminal division of the superior court rather than in the juvenile division of the superior court. In particular, Proposition 21 amended Welfare and Institutions Code section 707, subdivision (d)(1) to authorize filing a murder charge against a juvenile 16 years or older without first obtaining a judicial determination that the juvenile was unfit for processing under juvenile law. (Manduley v. Superior Court (2002) 27 Cal.4th 537, 544-545, 549-550.) Prior to 2000, the prosecutor was required to begin proceedings against a 17-year old in the juvenile division of the superior court where the trial judge was required to determine the juvenile’s fitness for the processes of the juvenile system. If determined unfit, the matter would be certified as a criminal prosecution.
In this case, defendant was 17 years old when he committed the murder but 50 years old when arrested. The People filed a complaint charging him with murder in the criminal division of the superior court. Before the first trial began defendant objected. Relying upon the law in effect at the time he committed the murder, he argued that the prosecutor was required first to initiate proceedings in the juvenile division. That is, defendant claimed that the juvenile division had to determine he was unfit for its processes before a felony prosecution could commence. Defense counsel conceded “[i]t might be a pro forma” act for the trial court but claimed that without such a procedure, the criminal division “just doesn’t have jurisdiction.” The trial court denied the motion and the matter proceeded to trial before Judge Hunter.
After the jury deadlocked and a mistrial was declared, a second preliminary hearing was conducted. Defendant filed a demurrer, renewing his claim that absent a fitness hearing in the juvenile court, the trial court lacked jurisdiction to preside over the criminal prosecution. In arguing the issue, defense counsel stated: “[T]here’s no allegation that this is any type of ex post facto law, it’s just the issue is this Court doesn’t have jurisdiction. It never had jurisdiction.... [¶] And there’s no question that [defendant] wouldn’t have been entitled to be directly filed back in 1975. That’s the law. That’s the law we’re operating under. The Penal Code at that time required it. He’s entitled to it. We don’t need to consider the facts as to whether he’s a 50-year-old man. He was 17 at the time.” The magistrate overruled the demurrer.
At the close of the preliminary hearing, the magistrate, in response to a request from the prosecutor, made a finding under Welfare and Institutions Code section 707, subdivision (d)(4) that the matter could proceed in the criminal division of the superior court.
Thereafter, defendant renewed his claim three more times during the second trial; in each instance, the trial court rejected it.
2. Discussion
Defendant contends that the magistrate’s order “committing him to Superior Court for trial, without first holding a fitness hearing in Juvenile Court—as was required in 1975—[disregarded] his substantial rights [so that] the resulting commitment was unlawful.” According to defendant, “the ensuing proceedings were conducted without jurisdiction. The judgment of conviction should be declared a nullity and the matter should be sent to Juvenile Court for a hearing conducted pursuant to the appropriate guidelines.” We disagree.
Contrary to what defendant suggests, the superior court had subject matter jurisdiction to try him under the law applicable to adults. “Whether a case should proceed in juvenile or adult court ‘does not involve an issue of subject matter jurisdiction.’ [Citation.] There is but one superior court in a county, though it is divided into different departments. [Citation.] Because [defendant] was charged with a felony, the superior court had subject matter jurisdiction.” (In re Harris (1993) 5 Cal.4th 813, 837.)
Defendant, who by then was 50 years old, had no statutory or constitutional right to have his case heard in the juvenile division of the superior court as opposed to the criminal division. It is a matter for the Legislature or the electorate to decide. (See Hicks v. Superior Court (1995) 36 Cal.App.4th 1649, 1658.)
Essentially, defendant argues that “he was entitled to have his case considered under the standards and guidelines that would have applied in 1975.” The legal authority he offers to support this claim of entitlement is the prohibition on ex post facto laws. (U.S. Const., art. I, § 10; Cal. Const., art. I, § 9.) However, defendant has forfeited that theory. Not only did he did not raise it below but his counsel’s comments at the second preliminary hearing (set forth above) expressly disavowed any theory that denial of a fitness hearing violated the prohibition on ex post facto laws. In any event, considered on the merits, the theory is not persuasive. (People v. Carr (1974) 43 Cal.App.3d 441 [appellate court can review a new theory if a question of law is presented].)
A law, if applied retroactively, can violate the prohibition on ex post facto laws in one of four ways: (1) it criminalizes conduct that was innocent when done; (2) it aggravates or makes greater a crime than when committed; (3) it increases the punishment for the crime; or (4) it lessens the burden of proof or quantum of evidence required to convict. (People v. Ansell (2001) 25 Cal.4th 868, 884, fn. 22.) The provision of Proposition 21 authorizing a prosecutor to file criminal charges directly in the criminal division without first conducting a fitness hearing in the juvenile division does not fall into any of those four categories. Instead, it is a change in procedure that can be applied to crimes committed before its enactment. (People v. Williams (1987) 196 Cal.App.3d 1157, 1160 [“procedural changes generally are considered outside the reach of the ex post facto clause”]; see also Tapia v. Superior Court (1991) 53 Cal.3d 282, 300 [provisions of Proposition 115 addressing conduct of trial can be applied to trial of a crime committed before the proposition’s enactment].)
IV. SENTENCING ISSUES
1. Denial of Presentence Conduct Credits
At the sentencing hearing, the trial court granted defendant 548 actual days of presentence custody credit. However, relying upon Penal Code section 2933.1, subdivision (a), the trial court ruled that it would not award presentence conduct credits. In this appeal, defendant contends, and the Attorney General agrees, that the trial court’s reliance upon that statute was misplaced. Subdivision (d) of the statute provides that it “shall only apply to offenses... that are committed on or after the date on which this section becomes operative.” (Pen. Code, § 2933.1, subd. (d).) The section’s operative date was September 21, 1994, almost 19 years after defendant murdered Johnston.
Defendant next argues that he is entitled to 274 days of presentence conduct credit under Penal Code section 4019. We disagree. That provision was enacted in 1976, a year after defendant murdered Johnston. Because defendant was not entitled to presentence custody credits under the statute when he committed the offense, he cannot now rely upon it. (See People v. Adams (2004) 115 Cal.App.4th 243, 262-264; Pen. Code § 3 [a penal code statute does not apply retroactively “unless expressly so declared.”].)
2. Parole Revocation and Restitution Fines
The abstract of judgment recites imposition of a $200 restitution fine (Pen. Code, § 1202.4, subd. (b)) and a $200 parole revocation fine (Pen. Code, § 1202.45.) The statutes permitting imposition of a restitution fine and parole revocation fine did not become operative, respectively, until 1984 and 1995, long after defendant committed the murder. (People v. Callejas (2000) 85 Cal.App.4th 667, 669; People v. Downing (1985) 174 Cal.App.3d 667, 672.) Consequently, defendant contends, and the Attorney General agrees, that the fines must be stricken because their imposition violates the prohibition against ex post facto laws. We therefore order the fines stricken.
The fines were not included in the trial court’s oral pronouncement of judgment.
DISPOSITION
The trial court is directed to prepare and forward to the Department of Corrections and Rehabilitation an amended abstract of judgment striking the two fines imposed pursuant to Penal Code sections 1202.4, subdivision (b) and 1202.45. In all other respects, the judgment is affirmed.
We concur: EPSTEIN, P. J., MANELLA, J.
The only time that defendant’s arrest record was raised in the pretrial hearing was during cross-examination of Officer Shepard. Defense counsel, in the course of questioning him about Love’s criminal history, asked: “And so you don’t recall that he [Love] went to prison with [defendant] on a case that occurred in 1977?” Officer Shepard replied: “No.”
In arguing the motion to Judge Hunter, defense counsel stated: “[I]f [LAPD] had done a little bit of homework [in 1993 after Carraway identified defendant, ] they would have noticed that [defendant] and Mr. Love had been convicted back in the late 70s on a case together out of L. A. County that I believe the sheriffs handled.... [¶] L. A. P. D. had a data base as of the late eighties... it was common practice... that they would also search the sheriff’s department data base. And so... if [defendant] was arrested late seventies through the sheriffs, that was a searchable location. They could have come up with a hit for [him] and followed up on him that way.”
“How reliable is Phyllis Carraway, the person who started this whole nightmare for [defendant]? She started this nightmare and ended it. Ended Mamie Johnston’s life. Phyllis Carraway is not reliable. She has a long history. She lived her adult life with this murder. She took a deal. She got three years. She committed a lot of other crimes, whether drug-related, burglary. She obviously didn’t get caught for all of those. Especially being out in the street now....
“Felony perjury. She’s on probation for that right now. She’s a convicted liar. She told us that. And she wants you to believe her. A woman with a significant history of mental health problems. She was on antipsychotic medication when she was being interrogated and under stress of interrogation.
“She was scared when she talked to the police.”