Opinion
B225436 B230461
10-13-2011
THE PEOPLE, Plaintiff and Respondent, v. JOHN ANTHONY REYES, Defendant and Appellant. In re JOHN ANTHONY REYES, on Habeas Corpus.
PETITION for Writ of Habeas Corpus. Writ denied. Marcia C. Levine, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Susan Sullivan Pithey and Mary Sanchez, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. LA060134)
APPEAL from a judgment of the Superior Court of Los Angeles County, Susan M. Speer, Judge. Affirmed.
PETITION for Writ of Habeas Corpus. Writ denied.
Marcia C. Levine, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Susan Sullivan Pithey and Mary Sanchez, Deputy Attorneys General, for Plaintiff and Respondent.
John Anthony Reyes appeals the judgment entered following his conviction by jury of forced oral copulation and two counts of penetration with a foreign object. (Pen. Code, §§ 288a, subd. (c)(2), 289, subd. (a).) The jury found Reyes personally used a firearm in the commission of each count. (Pen. Code, § 12022.53, subd. (b).) Reyes became a suspect in the case after DNA evidence found at the crime scene was matched to his DNA in a search of a DNA database, resulting in what has been referred to as a cold hit.
On appeal, Reyes contends the trial court erroneously refused to require the prosecution to establish that proper scientific procedures were used to calculate the probability of a cold hit in a search of a database, there was insufficient evidence to support the firearm enhancements and the prosecutor committed misconduct in argument.
In a petition for writ of habeas corpus, Reyes contends defense counsel rendered ineffective assistance in failing to request an instruction advising the jury a BB gun is not a firearm.
We previously ordered the petition for writ of habeas corpus to be considered concurrently with the appeal.
We reject these contentions, deny the writ petition and affirm the judgment.
FACTS AND PROCEDURAL BACKGROUND
1. The prosecution's evidence.
a. The assault.
On July 3, 2006, E.A. lived in an apartment building at 7805 Reseda Boulevard in Reseda. The building is at the corner of Reseda Boulevard and Ingomar Street. That evening, E.A. visited a friend, Augustine Maldonado, and returned home shortly after 10:10 p.m. E.A. parked her car on Ingomar Street, intending to enter the apartment building through a hallway on Ingomar Street.
As E.A. started to unlock the door at the end of the hallway, a Hispanic male approached her from behind, put his arm around her neck and put a gun against her head. E.A. described the gun as dark in color and "big," 8 to 10 inches long. The male told E.A. to drop her belongings or he would kill her. The male demanded money and E.A. indicated she had none. When the male put the gun in the back of his pants, E.A. tried to escape but the male grabbed her and told her not to do anything or he would kill her. The male touched E.A.'s breasts and vagina and penetrated her anus with his finger. The male forced E.A. to her knees and told her to put her mouth on his penis. After E.A. complied, the male forced her to stand and again put his finger inside her anus. He then ejaculated on the ground and smeared the ejaculate with his foot. When the male left, E.A. ran into her apartment, brushed her teeth and then called Maldonado.
Maldonado testified that, less than half an hour after E.A. left his home, she telephoned and said she had been sexually abused by someone who put a gun to her head. Maldonaldo called the police, then drove to E.A.'s apartment. E.A. showed Maldonado where the assailant ejaculated and she wiped the wet spots with cotton balls which she put inside a little plastic bag.
Los Angeles Police Officer Gary Shanahan arrived at the scene at approximately 11:40 p.m. Either E.A. or Maldonado gave Shanahan a plastic baggie containing three cotton balls.
Los Angeles Police Officer Marie Sadanaga took E.A. to the police station to be interviewed by a Spanish speaking officer and then to the hospital.
Los Angeles Police Officer Neredida Ortega spoke with E.A. in Spanish at the West Valley Station on July 4, 2006, at approximately 12:30 a.m. E.A. said she was sexually assaulted at approximately 10:20 p.m. on July 3, 2006. When E.A. resisted, the attacker produced a blue steel handgun he previously had placed in the rear of his waistband and pointed it at her head. E.A. said the gun was similar to Ortega's Baretta.
Officer Sadanaga spoke to E.A. at the hospital with the assistance of a victim's advocate. E.A. described the gun used by the assailant as black, which Sadanaga reported as a blue steel. Sadanago showed E.A. her semi-automatic weapon and "she said it didn't look like that." Sadanaga described a revolver with a round chamber and E.A. said "that's what it looked like." E.A. described the gun as having a barrel three to four inches long and said the attacker was uncircumcised.
b. Scent trail leads to the neighboring apartment building.
Los Angeles Police Sergeant Gerard Sola arrived at the crime scene with his tracking dog, Bear, in the early morning hours of July 4, 2006. Bear followed the scent trail from the hallway to the corner of Ingomar Street and Reseda Boulevard, then went north and entered a walkway between 7805 Reseda Boulevard and the apartment complex next door at 7817 Reseda Boulevard. Bear went through a gate between the properties and entered a courtyard associated with 7817 Reseda Boulevard. Bear continued westbound on the south side of 7817 Reseda Boulevard and entered the parking area behind the building but stopped at a gate and paused, as if he had lost the scent. Bear reacquired the scent and followed it along the parking area to a pedestrian gate leading to the pool area of 7817 Reseda Boulevard, but then lost the scent.
c. Biological evidence.
Los Angeles Police Department criminalist Penny Reid arrived at the crime scene at about 1:30 a.m. on July 4. Reid located semen on the ground of the hallway and collected specimens from three areas on sterile swabs (People's exhibit No. 9). Reid was present when another criminalist collected three cotton balls from Officer Shanahan. Reid marked the cotton balls collectively as item 11, dried them and placed them in frozen storage.
In December of 2007, criminalist Jennifer Francis extracted a DNA profile from People's exhibit No. 9 and entered it into the Combined DNA Index System (CODIS), a databank containing approximately one million different DNA profiles. In March of 2008, the laboratory received a letter indicating CODIS had matched the genetic profile developed from People's exhibit No. 9 with Reyes's genetic profile. Thereafter, Francis received a reference sample from Reyes (People's exhibit No. 15) which she subjected to DNA analysis. The DNA profile generated from Reyes's reference sample matched the DNA profile obtained from the swab taken from the hallway.
In April of 2009, Reid developed a single source 15-locus DNA profile from one of the cotton balls (People's exhibit No. 11A-1), compared it to a DNA profile developed from a reference swab collected from Reyes and found they matched. Reid calculated the frequency of the genetic profile within the population at large, i.e., the "random match probability," using an FBI software program called "Pop Stats," at one in 38 quadrillion, which is approximately five and a half million times greater than the population of the earth. The "Pop Stats" software uses a database of representative samples from 10 separate racial groups. The "Pops Stat" software provides a random match probability for each racial group. Reid took the most conservative estimate.
d. BB gun found in a search of Reyes's home.
On July 24, 2008, Los Angeles Police Detective Carla Zuniga searched Reyes's residence and recovered a small black BB gun. Zuniga testified the BB gun was "a replica gun, meaning that it wasn't a real handgun . . . ." Zuniga indicated a BB gun utilizes air pressure to shoot small metal BBs. On cross-examination, Zuniga admitted the BB gun was not a replica of a revolver.
e. Reyes's statements to Detective Gamino.
On July 24, 2008, Los Angeles Police Detective Oscar Gamino obtained two buccal swabs from Reyes and interviewed him regarding the assault. Reyes told Gamino that in July of 2006, he lived at 7817 Reseda Boulevard with his wife and son. Reyes said he was not familiar with the hallway where this crime occurred. When Gamino told Reyes he had information that linked him to the crime, Reyes responded his DNA "was already in the system." When Gamino asked Reyes why his DNA would be in the hallway, Reyes said he had no idea. Reyes said he was at a fireworks show at Moorpark High School on July 3, 2006, which ended at 9:00, 9:30, or 10:00 p.m.
Gamino interviewed Reyes again on September 25, 2008. During the second interview, Reyes said he had been with a prostitute named Cindy in the hallway on six occasions between April 2006 and September 2006. When Gamino told Reyes his DNA matched DNA found at the crime scene, Reyes asked "shouldn't there be D.N.A. on the victim's body?" Reyes also stated he stayed at the fireworks show until 10:30 p.m. and that his brother gave him the BB gun.
2. Defense evidence.
a. Alibi witnesses.
Susan Espinoza, who is related to Reyes through her granddaughter, testified Reyes and other family members attended fireworks at a park in Moorpark on July 3, 2006. The fireworks started at 9:00 p.m. and lasted 45 minutes to an hour. Toward the end of the show, Reyes's son was injured. Reyes and his wife took the child to a first aid station in the park and returned at 10:15 or 10:20 p.m. The family thereafter left the park together.
Nadine Sanchez, Reyes's mother-in-law, testified Reyes attended fireworks at Moorpark High School on July 3, 2006. Reyes, his wife and their son left the area with Sanchez at about 10:00 or 10:30 p.m. Sanchez drove them to their car, which was parked some distance from the event.
b. Other evidence.
Lisa Ramos, Reyes's maternal aunt, testified she bought a BB gun for Reyes's son on the day after Thanksgiving in 2006. Reyes's son was approximately five years old at the time.
Victoria Reyes, Reyes's wife, testified Reyes is circumcised.
The parties stipulated the crime scene is 27 and a half miles from Arroyo Vista Community Park in Moorpark, and that a deputy sheriff would testify he examined Reyes and determined Reyes is circumcised.
c. Defense expert.
Dr. Laurence Mueller, a professor at the University of California at Irvine, explained that random match probability estimates the probability the DNA profile of a single person chosen at random from some well defined population would match a DNA profile developed from crime scene evidence. Mueller testified it is not appropriate to use random match probability in a cold hit case in which the evidence is compared to numerous different genetic profiles until there is a match.
Mueller described three techniques for estimating the probability of a database match. The first, promulgated by the National Research Council ("NRC") in 1992 ("NRC I report"), the second promulgated by the NRC in 1996 ("NRC II" report), and finally the Bayesian method. Mueller testified the NRC I method was the most appropriate in a cold hit case. Under that method, the genetic markers in a DNA profile developed from the crime scene evidence is split into two groups. One group of markers is compared to the database and, if a match is made, the profile of that single person is compared to the second set of markers. If they match, a statistical probability can be determined in the same way a confirmatory comparison would be done. An estimate under NRC I could not be determined in this case because all the genetic markers found in the crime scene evidence had been compared to the database.
Under the next best method, the NRC II method, the random match probability is multiplied by the number of profiles in the database. The third method is based on Bayesian statistics. It takes into account the increased likelihood of a match when a profile is compared to a large number of profiles.
Mueller testified a random match probability estimate could not be calculated after a cold hit match because "there's actually no information being gained by [a confirmatory] test. All the uncertainty about whether there might or might not be a match between this evidence and [Reyes] was uncovered in the database search."
On cross-examination, Mueller agreed one in 38 quadrillion was the correct value for the random match probability of the DNA profile developed from the crime scene evidence.
d. Reyes's testimony.
Reyes testified on his own behalf that on July 3, 2006, he, his wife, their son and numerous other family members went to see fireworks at Arroyo Vista Park in the City of Moorpark. While there, Reyes and his wife took their son to a first aid station. They did not leave the park until sometime between 10:00 and 10:30 p.m. The drive to their home in Reseda took between 35 and 45 minutes. At the time, Reyes lived in an apartment building next door to E.A.'s building. After Reyes arrived home, he did not leave again that night. Although Reyes told Detective Gamino the BB gun was given to him by his brother, he now recalls it was a gift from his aunt.
Reyes testified he did not attack E.A. and claimed he told Detective Gamino the truth about Cindy the prostitute. Reyes did not have sex with Cindy in the hallway on July 3, 2006. However, he might have had sex with her in the hallway two days earlier, on July 1, 2006.
Reyes's genetic profile was in the CODIS database because, in 1996 when Reyes was 15 years of age, he raped a 19-year-old woman and forced her to orally copulate him. Reyes hit the female numerous times and attacked her because she rejected him and he felt superior to her. Reyes was arrested the next day. He pleaded guilty in juvenile court and was committed to the California Youth Authority, where he remained until January of 2001.
CONTENTIONS
Reyes contends the trial court should have required the prosecution to establish the People's experts used an appropriate statistical method to calculate the probability of a match, there was insufficient evidence to support the firearm enhancement and the prosecutor committed misconduct in argument. In a petition for writ of habeas corpus, Reyes contends defense counsel rendered ineffective assistance in failing to request an instruction advising the jury a BB gun is not a firearm.
DISCUSSION
1. The trial court properly denied Reyes's request to conduct a hearing on the admissibility of the random match probability in this case and any conceivable error in refusing to conduct a hearing was harmless.
a. Additional background.
Prior to trial, Reyes filed a motion seeking to exclude all DNA evidence or, in the alternative, to preclude the prosecutor from offering a random match probability as evidence of the significance to be attributed to the DNA match in this case. Citing People v. Nelson (2008) 43 Cal.4th 1242, Reyes claimed a cold hit raises a complex statistical issue which should be addressed by statisticians and population geneticists, not forensic scientists. Further, the relevant scientific community agreed random match probability did not apply in a cold hit case. Rather, there are at least three different methods of calculating the probability of a database match, the NRC I, the NRC II and the Bayesian method. Reyes claimed that, because this issue was unresolved in the scientific community, random match probability was inadmissible in this case. Alternatively, Reyes claimed the People should be limited to the most conservative of the three alternatives, namely, the NRC II method.
Reyes argued Nelson, which held random match probability constitutes relevant evidence and thus was admissible in a cold hit case, had been wrongly decided as it permitted the trier of fact to determine the reliability of statistical computations, which was a question of law. Reyes asserted he was entitled to a hearing under the third prong of the Kelly rule (People v. Kelly (1976) 17 Cal.3d 24), to address the admissibility of random match probability to describe the significance of the cold hit match in this case, claiming the method for calculating the probability of a database match is not generally accepted and generally accepted procedures were not followed in this case.
Under Kelly, the proponent of evidence must establish that: (1) the technique or method has gained general acceptance in its field; (2) testimony concerning the technique and its application is offered by a properly qualified expert; and (3) correct scientific procedures have been used in the particular case. (People v. Kelly, supra, 17 Cal.3d at p. 30.)
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The trial court denied the motion and ruled no hearing was necessary because use of the random match or "product rule" calculation had been "clearly sanctioned" in People v. Nelson, supra, 43 Cal.4th 1242 and People v. Johnson (2006) 139 Cal.App.4th 1135. The trial court further concluded that, while there may be "better ways" to calculate the statistical frequency of a match in a database case, "the use of a product rule in a cold hit case is not the application of a new scientific technique . . . ."
b. Reyes's appellate contention.
On appeal, Reyes contends the trial court should have conducted a hearing to determine whether random match probability was an appropriate statistical method to calculate the probability of a database match. Reyes asserts the erroneous admission of the random match probability requires reversal because it is reasonably probable the verdict would have been more favorable to Reyes in the absence of the evidence. (People v. Venegas (1998) 18 Cal.4th 47, 93.) Reyes notes Venegas held the error required reversal under generally similar facts where there was no other evidence linking the defendant to the crime other than serological evidence consistent with the defendant and half the population. (Id. at p. 94.) Reyes claims a similar result should obtain here, arguing DNA evidence without a statistical context is meaningless. Thus, had the motion been granted, the jury would have been left without sufficient evidence linking Reyes to the crime.
c. The trial court properly denied the motion and, in any event, any error was harmless beyond a reasonable doubt.
The People assert Reyes has forfeited this issue by failing to press the trial court to rule on his request for a hearing devoted to the third Kelly prong. (People v. Lewis (2008) 43 Cal.4th 415, 481.) However, Reyes requested such a hearing in his moving papers and the trial court denied the motion. We therefore conclude Reyes has preserved the issue for appeal. However, it fails on the merits. Indeed, given Nelson's holding that random match probability is relevant and admissible in a database match case (People v. Nelson, supra, 43 Cal.4th at p. 1260), the trial court was required to deny the motion. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
Moreover, even assuming the trial court should have held a Kelly hearing on the third prong, any error was harmless. The evidence showed a match between Reyes's DNA profile and the DNA profile developed from the crime scene evidence. At the time of the attack, Reyes lived in the apartment building next door to E.A.'s apartment building. A tracking dog followed a scent trail from the crime scene to Reyes's apartment building. Reyes had a prior conviction in which he forced a woman to orally copulate him. Reyes knew his DNA was "in the system" and was aware of the significance of DNA evidence, which explains why he smeared the crime scene evidence with his foot. Although Reyes testified his semen was present in the hallway as the result of a previous encounter with a prostitute, this explanation simply was not credible.
Further, even had the NRC II method of calculating a database match been employed here as Reyes requested in his motion, the statistical probability of a match remained extraordinarily minute. Under the NRC II method, the random match probability is multiplied by the number of individuals in the database. CODIS contains approximately one million DNA profiles. Multiplying the random match probability in this case of one in 38 quadrillion, which is approximately 5 and a half million times the number of people on the earth, by 1 million results in a database match probability of one in 38 billion, or one in 5 and a half times the number of people on earth. Thus, even had the trial court granted Reyes's motion, conducted a hearing on the admissibility of the evidence and concluded only the database match probability computed under the NRC II method was admissible, the evidence of Reyes's guilt remained overwhelming.
Under these circumstances, any error was harmless beyond a reasonable doubt.
2. The evidence supports the finding Reyes personally used a firearm;
a. Reyes's contention.
Reyes contends there was insufficient evidence to support the firearm enhancements under Penal Code section 12022.53, subdivision (b). He notes the only gun introduced into evidence was a BB gun, which is not a firearm for purposes of Penal Code section 12022.53. (People v. Monjaras (2008) 164 Cal.App.4th 1432, 1435.) Also, E.A.'s testimony as to the use of a firearm was vague and equivocal. Further, in opening argument, the prosecutor used a PowerPoint presentation that included an image of a man with a weapon shaped like a semi-automatic to illustrate the firearm enhancement. In argument, the prosecutor commented the BB gun "looks to be a lethal weapon to the naked eye." Further, in closing argument, the prosecutor included the BB gun in a list of the incriminating items of evidence in addition to the DNA evidence. Reyes asserts this argument attempted to suggest to the jury the BB gun was the weapon Reyes used in the attack. Also, the jury was not specifically instructed the BB gun was not a firearm. Reyes concludes that, because the People introduced evidence from which it could find the weapon Reyes used in the assault was a BB gun, the firearm enhancements must be stricken. (People v. Dixon (2007) 153 Cal.App.4th 985, 989.)
b. Standard of review.
In assessing the sufficiency of the evidence, we review the whole record to determine whether any rational trier of fact could have found the essential elements of a crime or an enhancement true beyond a reasonable doubt. (People v. Maury (2003) 30 Cal.4th 342, 403.) The record must disclose substantial evidence to support the finding, i.e., evidence that is reasonable, credible, and of solid value " ' "such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." ' [Citation.]" (Id. at p. 396.) In applying this test, we review the evidence in the light most favorable to the prosecution and presume in support of the judgment the existence of every fact the jury reasonably could have deduced from the evidence. (People v. Boyer (2006) 38 Cal.4th 412, 480.) "Conflicts and even testimony [that] is subject to justifiable suspicion do not justify the reversal of a judgment, for it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends. [Citation.] We resolve neither credibility issues nor evidentiary conflicts; we look for substantial evidence. [Citation.]" (People v. Maury, supra, 30 Cal.4th at p. 403.) A reversal for insufficient evidence "is unwarranted unless it appears 'that upon no hypothesis whatever is there sufficient substantial evidence to support' " the jury's verdict. (People v. Bolin (1998) 18 Cal.4th 297, 331.)
c. Resolution.
Here, E.A. testified the assailant put a gun to her head, transferred the gun to the rear of his pants and threatened to kill her if she tried to escape. E.A. described the gun to the police as black, which the officers recorded as blue steel, and said the gun was "big," 8 to 10 inches long. E.A. told Officer Ortega the gun was a revolver, not an automatic. This testimony was sufficient to prove Reyes used a firearm in the commission of the sexual assault. Moreover, assuming for the sake of discussion that E.A.'s description of the gun was inconsistent and equivocal, such inconsistencies are for the jury to resolve, not this court.
In an attempt to avoid this conclusion, Reyes relies on various remarks by the prosecutor. However, none of these remarks suggests the People relied on the BB gun to establish the truth of the firearm enhancements. The prosecutor did not refer to the BB gun as the weapon Reyes used and merely displaying an image of a semi-automatic weapon to illustrate the firearm enhancement does not suggest otherwise. Given that E.A. described the weapon used in the attack as a revolver, the image used by the prosecutor apparently was a generic one meant to convey Reyes's firearm use.
With respect to Reyes's reliance on the prosecutor's argument the BB gun "looks to be a lethal weapon to the naked eye," the prosecutor made this comment while addressing the credibility of Lisa Ramos, Reyes's maternal aunt, who testified she purchased the BB gun for Reyes's young son. The prosecutor was not suggesting the BB gun was used in the assault.
Regarding Reyes's assertion the prosecutor included the BB gun in a list of the incriminating evidence, the prosecutor made this argument in response to defense counsel's suggestion the reliability of the DNA evidence had been overstated. The prosecutor noted the defense had not offered any other statistical probability and argued "it's up to you to decide whether that's credible evidence, not our opinions. [¶] And if I tell you to throw away the gun and the dog and the D.N.A. and just ignore the whole thing, it is incumbent upon you to ignore me and say that's evidence that we heard and we are not going to throw away the D.N.A." Thus, the prosecutor did not refer to the BB gun, as Reyes asserts, but to the evidence that indicated Reyes had used a gun.
In sum, nothing in the prosecutor's presentation of the case or argument to the jury suggests the jury's true finding on the firearm enhancements should be set aside.
Additionally, Reyes's reliance on People v. Dixon, supra, 153 Cal.App.4th 985, is misplaced. In Dixon, the trial court found there was insufficient evidence to support an allegation the defendant personally used a firearm within the meaning of Penal Code section 12022.53, subdivision (b) and found true the lesser included enhancement of use of a deadly weapon within the meaning of Penal Code section 12022, subdivision (b). On appeal, the defendant contended he had not been given adequate notice of the lesser allegation. In the course of rejecting this contention, Dixon noted the trial court had found the personal use of a firearm not true based on its conclusion the "prosecution had not proved the gun [the defendant] used was a firearm - it might have been a pellet gun or a BB gun. The guns used in the robbery were never found, and the victims, who were unfamiliar with guns, could only say that the robbers both had what appeared to be guns." (People v. Dixon, supra, at p. 1001.)
Dixon does not support Reyes's argument because it did not involve a claim of insufficiency of the evidence to support firearm use enhancements. Rather, the issue in Dixon was whether the defendant had received adequate notice he was being charged with personal use of a deadly weapon (Pen. Code, § 12022, subd. (b)), a lesser included enhancement which the trial court found true. (People v. Dixon, supra, 153 Cal.App.4th at p. 1001.) The trial court, sitting as the trier of fact, was not convinced the prosecution had proved the firearm enhancement allegation beyond a reasonable doubt. In this case, by contrast, the jury was convinced beyond a reasonable doubt that Reyes personally used a firearm in the commission of the sexual offenses committed against E.A. and substantial evidence supports its true findings.
Although the prosecution proved a BB gun was recovered in a search of Reyes's home in 2008, the People did not rely on the BB gun to establish the firearm enhancement. Thus, the controlling authority is People v. Monjaras. In Monjaras, the defendant displayed the handle of a black pistol tucked in his waistband and demanded property. A jury found the defendant personally used a firearm within the meaning of Penal Code section 12022.53, subdivision (b).
On appeal, the defendant raised a contention Monjaras "thought had been put to rest . . . ." (People v. Monjaras, supra, 164 Cal.App.4th at p. 1435.) The defendant claimed that, because the victim could not say whether the pistol in the defendant's waistband was a gun or a toy, there was insufficient evidence to support the firearm use enhancement. Monjaras rejected this contention. Referring to the claim as "moribund," Monjaras noted the "[d]efendant was not engaged in a childhood game of cops and robbers; the robbery was real, and the evidence supports a reasonable inference that the pistol he used was a real firearm, not a toy." (Id. at p. 1435.) Monjaras noted toy guns, BB guns and pellet guns do not qualify as firearms. However, the fact than an object used by a robber was a firearm may be established by circumstantial evidence and, in fact, "[m]ost often, circumstantial evidence alone is used to prove the object was a firearm. This is so because when faced with what appears to be a gun, displayed with an explicit or implicit threat to use it, few victims have the composure and opportunity to closely examine the object; and in any event, victims often lack expertise to tell whether it is a real firearm or an imitation. And since the use of what appears to be a gun is such an effective way to persuade a person to part with personal property without the robber being caught in the act or soon thereafter, the object itself is usually not recovered by investigating officers." (Id. at p. 1436.)
Monjaras stated: "While it is conceivable that the pistol was a toy, the jury was entitled to take defendant at his word, so to speak, and infer from his conduct that the pistol was a real, loaded firearm and that he was prepared to shoot the victim with it if she did not comply with his demand. [Citation.]" (People v. Monjaras, supra, 164 Cal.App.4th at p. 1437.)
Here, Reyes put what E.A. described as a revolver to her head and threatened to kill her if she did not comply with his demands. Under Monjaras, the jury was entitled to take E.A. at his word and find he used a firearm in the commission of the charged offenses. The fact the People introduced evidence of a BB gun recovered in a search of Reyes's home two years after the attack does not alter this result. The detective who recovered the BB gun testified it was "a replica gun, meaning that it wasn't a real handgun" and it utilizes air pressure to shoot BBs. Thereafter, the trial court instructed the jury in the words of CALCRIM No. 3146 that: "A firearm is any device designed to be used as a weapon, from which a projectile is discharged or expelled through a barrel by the force of an explosion or other form of combustion."
Based on this testimony and instruction, the jury could not have found the firearm enhancements true based on the BB gun recovered in the search of Reyes's home. In sum, we reject Reyes's claim of insufficient evidence to support the firearm enhancements.
3. Reyes cannot prevail on his claim of ineffective assistance based on counsel's failure to request an instruction advising the jury a BB gun is not a firearm.
In a petition for writ of habeas corpus, Reyes contends defense counsel rendered ineffective assistance in failing to request a pinpoint instruction advising the jury a BB gun is not a firearm. Reyes argues that, because there was evidence suggesting Reyes used a BB gun in the assault, such an instruction was critical.
To prevail on a claim of ineffective assistance of counsel, a defendant must establish that counsel's representation fell below an objective standard of reasonableness and was prejudicial. (Strickland v. Washington (1984) 466 U.S. 668, 687-688 .) To prove prejudice, the defendant must demonstrate there is a " 'reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.' " (People v. Ledesma (1987) 43 Cal.3d 171, 217-218.) In considering a claim of ineffective assistance of counsel, it is not necessary to determine "whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies. . . . If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed." (Strickland v. Washington, supra, at p. 697.)
Here, as noted above, the detective who recovered the BB gun testified it was not a real handgun in that it utilized air pressure to discharge BB's and the trial court instructed the jury a "firearm" is "a weapon from which a projectile is discharged or expelled through a barrel by the force of explosion or other form of combustion."
This testimony and instruction clearly informed the jury that a BB gun is not a firearm. Thus, Reyes cannot demonstrate a reasonable probability of a more favorable outcome had defense counsel requested a pinpoint instruction advising the jury a BB gun is not a firearm. His claim of ineffective assistance of counsel therefore fails. (Strickland v. Washington, supra, 466 U.S. at p. 697.)
4. Any prosecutorial misconduct was harmless on the facts presented.
a. Background
Although two defense witnesses testified Reyes and his wife both were present at the fireworks show on July 3, 2006, defense counsel did not ask Reyes's wife, Victoria Reyes, whether she or Reyes attended the show.
During argument to the jury, the prosecutor said: "[Victoria Reyes] came here, took the stand and she had two words to tell you, that he's circumcised. [¶] What about 'I was with him that night?' [¶] What about 'I know where he was that night'? [¶] What about telling you that she knows that her husband didn't do this? [¶] Why was the wife not able to provide any of this to you? [¶] Is it logical for the . . . person who was with him that night to come forward and all she wants to tell you is that he's circumcised? [¶] I submit to you [it] is because she can't tell you where he was that night."
Defense counsel objected to the prosecutor's argument. Defense counsel indicated she and the prosecutor previously had discussed the testimony of Vicoria Reyes. In that discussion, the prosecutor stated it would be inappropriate for defense counsel to ask Victoria Reyes about Reyes's whereabouts on the night of the assault because the defense had not provided discovery of Victoria Reyes's anticipated testimony. Defense counsel agreed it would be inappropriate to question Victoria Reyes about Reyes's whereabouts and declined to do so. Based on this agreement, defense counsel argued the prosecutor should not have pointed out Victoria Reyes's failure to testify as to Reyes's whereabouts.
The prosecutor responded defense counsel's failure to provide discovery of Victoria Reyes's anticipated testimony was "not the People's fault" and did not preclude the People from arguing the defense had failed to call logical witnesses. Further, the discussion with defense counsel did not change the fact the defendant's wife was a logical witness to explain the defendant's whereabouts. The defense should have interviewed her "long ago" to get a statement that could have been provided to the People. Also, the parties stipulated Reyes was uncircumcised so there was no reason to call Victoria Reyes. The prosecutor claimed she did not agree not to comment on the failure of Victoria Reyes to testify about the whereabouts of her husband and noted "the People were always planning to comment on the fact that if his wife was with him that night, she's the appropriate alibi witness."
The trial court stated it was "unfortunate" the discovery issue had not been litigated. Defense counsel conceded she and the prosecutor had not discussed whether the prosecutor could comment on Reyes's testimony. However, because the prosecutor indicated she would object to the alibi testimony, defense counsel believed the People were "duty bound and ethically bound not to exploit their own objection."
The trial court concluded the parties had elected not to litigate whether Victoria Reyes could testify about Reyes's whereabouts on the night of the incident and, in the absence of any ruling on the issue, the prosecutor's remarks constituted "fair argument . . . ."
b. Reyes's contention.
Reyes contends the prosecutor committed misconduct in taking advantage of defense counsel's decision to respect the prosecutor's informal objection to the testimony of Victoria Reyes on any topic other than circumcision. Reyes claims the agreement between defense counsel and the prosecutor not to inquire of Victoria Reyes concerning Reyes's alibi had the same effect as a ruling by the trial court. Thus, the prosecutor committed misconduct by violating this agreement. (People v. Friend (2009) 47 Cal.4th 1, 33 [prosecutor who violates a trial court's evidentiary ruling commits misconduct].)
Reyes additionally contends the prosecutor improperly told the jury Victoria Reyes did not testify Reyes was with her because she did not know where he was that night. Reyes asserts this comment misled the jury and amounted to arguing facts not in evidence, which makes the prosecutor a witness not subject to confrontation or cross-examination. (People v. Hill (1998) 17 Cal.4th 800, 828; People v. Pinholster (1992) 1 Cal.4th 865, 948; People v. Bolton (1979) 23 Cal.3d 208, 215, fn. 4.)
Reyes asserts the misconduct requires reversal because it rendered the trial "fundamentally unfair." (Donnelly v. DeChristoforo (1974) 416 U.S. 637, 643 .) He argues that, when prosecutorial misconduct involves federal constitutional error, it is reversible error unless it is harmless beyond a reasonable doubt. (People v. Bolton, supra, 23 Cal.3d at p. 214, citing Chapman v. California (1967) 386 U.S. 18, 24 .) Further, because the prosecutor's comments violated his right to due process and the right to confront and cross-examine witnesses, the misconduct requires reversal unless the result was "surely unattributable to the error." (Sullivan v. Louisiana (1993) 508 U.S. 275, 279 .)
Alternatively, Reyes argues that, under California law, a prosecutor who uses deceptive or reprehensible methods of persuasion commits misconduct even if such actions do not render the trial fundamentally unfair. (E.g., People v. Cook (2006) 39 Cal.4th 566, 606.) He claims reversal under state law is required because there is a "reasonable probability" the result could have been different without the error. (People v. Watson (1956) 46 Cal.2d 818, 836.)
c. Relevant law.
"Under California law, a prosecutor commits reversible misconduct if he or she makes use of 'deceptive or reprehensible methods' when attempting to persuade either the trial court or the jury, and it is reasonably probable that without such misconduct, an outcome more favorable to the defendant would have resulted. [Citation.] Under the federal Constitution, conduct by a prosecutor that does not result in the denial of the defendant's specific constitutional rights - such as a comment upon the defendant's invocation of the right to remain silent - but is otherwise worthy of condemnation, is not a constitutional violation unless the challenged action ' "so infected the trial with unfairness as to make the resulting conviction a denial of due process." ' [Citations.]" (People v. Riggs (2008) 44 Cal.4th 248, 298; People v. Crew (2003) 31 Cal.4th 822, 839.)
However, reversal for prosecutorial misconduct is not required unless the defendant has been prejudiced thereby, that is "unless it is reasonably probable that a result more favorable to the defendant would have been reached without the misconduct." (People v. Crew, supra, 31 Cal.4th at p. 839.) We review a trial court's ruling regarding alleged prosecutorial misconduct for an abuse of discretion. (People v. Alvarez (1996) 14 Cal.4th 155, 213.)
"[P]rosecutorial comment upon a defendant's failure 'to introduce material evidence or to call logical witnesses' is not improper. [Citations.]" (People v. Wash (1993) 6 Cal.4th 215, 263; People v. Hall (2000) 82 Cal.App.4th 813, 817.)
d. Any prosecutorial misconduct was harmless.
Although it is misconduct for a prosecutor to violate a trial court's ruling by eliciting or attempting to elicit inadmissible evidence in violation of a court order (People v. Crew, supra, 31 Cal .4th at p. 839), there was no ruling by the trial court that precluded the prosecutor from arguing Reyes had failed to call a logical witness. Contrary to Reyes's argument, the prosecutor's agreement not to object to Victoria Reyes's testimony that Reyes was circumcised did not prevent the prosecutor from commenting on her failure to testify as to Reyes's whereabouts.
Further, the trial court committed no abuse of discretion in concluding the agreement between the prosecutor and defense counsel regarding Victoria Reyes's testimony did not preclude the prosecutor from commenting on the failure of Victoria Reyes to address Reyes's whereabouts on the night of the assault. (People v. Alvarez, supra, 14 Cal.4th at p. 213.) The trial court reasonably could conclude that, based on defense counsel's failure to provide discovery of Victoria Reyes's statement, the People properly could comment on her failure to testify about Reyes whereabouts. As defense counsel conceded, there had been no discussion regarding whether the prosecutor could comment on Victoria Reyes's failure to testify on this subject. Further, the prosecutor indicated she intended to comment on the failure of the defense to call Victoria Reyes before the defense sought to call her. The prosecutor's agreement to permit Victoria Reyes to testify that Reyes was circumcised did not alter the situation and defense counsel could not forestall that argument merely by calling Victoria Reyes to testify that Reyes was circumcised. In any event, assuming the prosecutor's comment on the failure of Victoria Reyes to testify about Reyes's whereabouts was improper, it did not render the trial fundamentally unfair. Thus, no reversible misconduct occurred. (See People v. Prieto (2003) 30 Cal.4th 226, 260; People v. Smithey (1999) 20 Cal.4th 936, 961.)
The same result obtains with respect to Reyes's claim the prosecutor improperly argued Victoria Reyes was not asked about Reyes's whereabouts because she did not know where Reyes was that night. As noted in connection with Reyes's claim of Kelly error, the evidence showed a match between Reyes's DNA profile and the DNA profile developed from the crime scene evidence, Reyes lived next door to E.A.'s apartment building at the time of the attack, a tracking dog followed a scent trail from the crime scene to Reyes's apartment building, Reyes had a prior conviction for a similar offense, Reyes knew his DNA was "in the system" and he was aware of the significance of DNA evidence. Further, even under the NRC II method of calculating a database match, the probability of a match between Reyes's DNA and the crime scene evidence was one in 38 billion. In light of this overwhelming evidence of guilt, and given Reyes's incredible explanation for the presence of his DNA in the hallway, any prosecutorial misconduct in arguing Victoria Reyes did not know where Reyes was on the night in question was harmless beyond a reasonable doubt. (See People v. Hall, supra, 82 Cal.App.4th at p. 817.)
DISPOSITION
The judgment is affirmed; the petition for writ of habeas corpus is denied.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
KLEIN, P.J. We concur:
CROSKEY, J.
ALDRICH, J.