Opinion
NOT TO BE PUBLISHED
ROBIE, J.
A jury found defendant Howard Schreiber guilty of first degree burglary, first degree robbery, assault, and sexual battery. The trial court sentenced him to six years in prison and one year in jail.
Defendant appeals, raising the following eight contentions: (1) the court erred in admitting DNA evidence; (2) the court erred in admitting his out-of-court statement to law enforcement; (3) the court erred in denying his Wheeler/Batson motion; (4) the court erred in excluding some of his third party culpability evidence; (5) the court erred in failing to instruct with CALCRIM No. 359 on corpus delicti; (6) the prosecutor committed misconduct in closing argument; (7) these cumulative errors require reversal; and (8) the court erred in imposing an upper term consecutive sentence. Finding no prejudicial error, we affirm the judgment.
People v. Wheeler (1978) 22 Cal.3d 258; Batson v. Kentucky (1986) 476 U.S. 79 [90 L.Ed.2d 69].
FACTUAL AND PROCEDURAL BACKGROUND
A
The Prosecution’s Case
One evening in March in 2003, G. was home alone while her husband was away at work. When G. went to sleep, she left open the sliding door in her bedroom that led to the patio. She was awakened by a “popping noise” and peeked outside the curtains covering the sliding door. Seeing nothing unusual, she closed the door and locked it.
When she turned back to go to bed, she saw defendant standing in her bedroom doorway. He put her in a headlock and asked where her money was. When she told him she did not have any, he slapped her and asked if she had any jewelry. When she told him “[n]o,” he slapped her again. She then told him there was a $100 bill in the drawer.
Instead of taking the money at that time, defendant pushed G. onto the bed, kissed her a couple of times, and then touched her legs, vagina, and breasts. About five minutes later, defendant ejaculated on her legs. Defendant then threw the bed cover over G.’s head, told her not to look at him or else he would shoot her, and took the $100 bill from the drawer.
When defendant got ready to leave, he told G. not to tell anyone or else he would come back and shoot her. Defendant took her purse, disabled her telephone, and left.
DNA from the sperm left on G. matched defendant’s DNA. The odds of someone other than defendant being the source of the DNA ranged from 1 in 970 quintillion to 1 in 1 sextillion.
When police detectives went to defendant’s jail cell to get “reference sample[s] . . . of [defendant’s DNA],” and told him that they already had his DNA, defendant responded, “well, I guess I’m screwed, then.”
B
The Defense
When G. reported the crimes to police on the evening of the attack, she described her assailant as “a male Hispanic adult approximately 35 years old” who spoke without an accent, and who was about 5 feet 11 inches tall, weighed 150 pounds, and smelled very strongly of bad cologne.
The probation report stated that defendant was a 45-year-old “White” male who was 5 feet 11 inches tall and weighed 215 pounds. He had a “pronounced New York accent.”
During the initial investigation, police indentified Jesse Luna as a potential suspect. Luna lived 2.17 miles from G. and “came close” to the description G. had given of her attacker. Inside his house were five bottles of cologne that police seized to conduct a “cologne lineup.” During the lineup, G. indentified one as smelling “very much like” her attacker’s cologne. Despite these similarities, Luna’s DNA did not match the DNA from the sperm left on G.
Luna was a Hispanic male who was 5 feet 11 inches tall and weighed 185 pounds who spoke without an accent.
DISCUSSION
I
The DNA Evidence Was Properly Admitted
Defendant contends the trial court erred in admitting the DNA evidence because there was an inadequate foundation to conclude that the crime laboratory’s analysis of the DNA samples was trustworthy. His argument rests on opinion testimony that the auditors who certified the laboratory were not qualified to conduct the audit.
The People contend the issue is not properly before this court because “the defense affirmatively waived foundational objections to the DNA evidence in this case and asked only to be able to cross-examine the prosecution expert concerning deficiencies in the laboratory’s procedures as reflected in the periodic audit reports,” which the trial court allowed. We find that defendant forfeited his argument and even if he had not, it fails on the merits.
Before trial, the People moved to allow a criminalist to testify that defendant was the source of the semen sample left at the scene (source attribution) rather than to testify that the odds against defendant’s DNA profile matching that of the semen sample found on G. were statistically improbable.
In response, defendant moved for a hearing pursuant to People v. Kelly (1976) 17 Cal.3d 24. He argued that source attribution had not gained general acceptance in the scientific community (prong 1 of the Kelly test) and that correct scientific procedures had not be followed here (prong 3 of the Kelly test). Defendant also moved for admission of evidence relating to a 2005 audit of the Sacramento County crime laboratory, arguing it was “highly relevant in assessing whether the Sacramento Crime lab has been using correct scientific procedures in their forensic DNA testing program.”
In Kelly, the California Supreme Court established a three-pronged test for the admissibility of scientific evidence. The proponent of the evidence must establish: (1) the technique has gained general acceptance in its field; (2) the testimony regarding the technique and its application is offered by a properly qualified expert; and (3) correct scientific procedures were followed in this particular case. (People v. Venegas (1998) 18 Cal.4th 47, 78, citing People v. Kelly, supra, 17 Cal.3d at p. 30.)
On the day of the hearing, the People withdrew their request to introduce evidence that defendant was the source of the semen sample, and “accordingly” defendant withdrew his “request for either a prong 1 or prong 3 Kelly hearing.” The hearing proceeded “to address the relevance and admissibility of the audit . . . .”
At the hearing, the People called Mary Hansen to testify. She was the supervising criminalist in charge of the biology unit at the Sacramento County District Attorney’s criminal laboratory. The laboratory was audited in 2005 by the American Society of Crime Laboratory Directors. The audit reported “adverse findings” as to the DNA portion of the laboratory, some of which were appealed and reversed, some of which Hansen agreed with and corrected, and some of which she disagreed with and were still under appeal. Hansen believed that the auditors were not qualified to audit her section of the laboratory. One of the auditors did not understand why the printouts from Macintosh computers looked different from Microsfot computers. Another one was not qualified to look at “Identifiler” data. And the auditors did not interview Hansen before preparing their findings. Hansen stopped short of calling the auditors incompetent, however, because they “point[ed] out a couple little things in the audit that . . . [she] conceded to.”
After Hansen testified, the People “reconsidered [their] position” and stated they “d[id]n’t have an objection” to defendant asking Hansen “about the findings on the [American Society of Crime Laboratory Directors] appeal that were essentially lost on appeal.” But they believed that “everything else upon balance, 352, without any real showing of how they have any relevance to this particular case, is warranted.”
Defendant agreed that he would “not go into the three findings that were reversed” but argued that the remaining adverse findings were relevant to impeach the People’s evidence of the random match probability, i.e., the “one in a quadrillion million billion number that they are going to tell this jury about . . . irrespective of the possibility of any lab error.” Defendant believed “the only way [he] ha[d] of challenging whether they used correct scientific procedures as a general matter [wa]s to go into these kinds of questions, that they have been found deficient in their scientific procedures.” “[T]his is our way of showing that that number that they are going to give the jury is not a definite number, and it has to be -- it’s with the assumption that nothing was ever done wrong by the lab in the entire case. And I’m entitled to challenge that.”
The court responded that it “th[ought] that most of this ha[d] to be allowed to enable fair cross-examination.” The court then ruled as follows: “The motion is going to be denied. This is the People’s motion to exclude reference to the audit. The motion is denied with the exception that there’s to be no mention of the one individual [who] didn’t complete his continuing education requirements, and there’s to be no mention of any finding concerning any paternity testing. The rest of it can come in.”
From this record, it is clear that by the time of the hearing, defendant was not objecting to the foundational admissibility of the DNA evidence. Instead, he was seeking only to cross-examine Hansen with evidence of the adverse findings by the auditors. He certainly did not make the argument that he makes now, i.e., that the trial court should have “exclude[d] as untrustworthy . . . DNA ‘match’ evidence developed by the Sacramento County crime lab . . . [f]or the auditors who had certified the crime lab . . . were . . . deemed unqualified to perform that audit in the first place, by the prosecution’s own expert witness, Mary Hansen.”
In a similar situation, the California Supreme Court has deemed forfeited a defendant’s appellate argument. (People v. Hoyos (2007) 41 Cal.4th 872, 909-910.) There, the defendant argued on appeal that the People’s blood spatter expert witness was biased and lacked proper qualification as an expert. (Id. at p. 909.) In the trial court, however, the defendant argued to exclude the expert’s testimony under Kelly, raising the issue of whether the expert had used correct procedures. (Hoyos, at p. 909.) The Supreme Court concluded that the defendant “forfeit[e]d the claims” “because the objection below neither explicitly nor implicitly raised the issues of [the expert]’s bias or lack of qualification.” (Id. at p. 910.) Similarly here, by failing to raise at the trial level implicitly or explicitly the same issue with regard to the scientific evidence he raises on appeal, defendant has forfeited his argument.
Even if not forfeited, defendant’s argument fails for a simple reason. He is not challenging that the DNA evidence in this case was mishandled, but rather is challenging the foundation on which the DNA evidence was admitted because of the alleged lack of qualifications of the auditors who certified the laboratory. That allegation, however, does not undermine or even affect the reliability of the DNA test results themselves. For this reason, there was no error, constitutional or otherwise, in admitting the DNA evidence.
II
Defendant’s Out-Of-Court Statement Was Properly Admitted
Defendant contends the trial court erred in denying his motion to suppress the statement he made in jail about being “screwed” because law enforcement had his DNA. Specifically, he contends that the court should have suppressed the statement because it was taken in violation of his Fifth Amendment right to remain silent and his Sixth Amendment right to counsel. We disagree.
A
Facts Surrounding The Motion To Suppress And The Trial Court’s Ruling
On October 18, 2004, defendant was arrested in New York on a federal warrant for violation of “interstate travel to avoid prosecution” at the behest of Sacramento County Police Detective Jimmy Vigon. After he was arrested, defendant was transported to Sacramento. Sacramento County Deputy District Attorney Joseph Chavez (who was handling defendant’s state prosecution) obtained a search warrant for detectives to obtain a sample of defendant’s DNA.
Around 8:30 a.m. on November 24, 2004, Detective Vigon and Detective Peter Willover went to the Sacramento County Jail for two purposes: (1) to serve the search warrant on defendant and collect the DNA sample; and (2) to “advise him of his rights” and “[i]f he waived his rights,” to bring him back to the police department to do a videotaped interview. When they went into defendant’s cell, Detective Willover told defendant who they were, and Detective Vigon told defendant he was “under arrest for the burglary of a house and attempted rape of a lady” that took place in March 2003. Defendant asked Detective Vigon how he “kn[e]w it was him.” Detective Vigon replied that they had “found his DNA at the scene linking him to the crime.” Defendant then “started to ask [the detectives] questions regarding the time, place, and circumstances of the crime.”
After answering defendant’s question about how they knew it was him and within less than a minute of their arrival, Detective Vigon started reading defendant his rights pursuant to Miranda v. Arizona (1966) 384 U.S. 436 [16 L.Ed.2d 694]. As Detective Vigon was reading defendant his Miranda rights, defendant asked whether they had his DNA. Detective Vigon told him for a second time that they did. Defendant replied, “you have my DNA. Well, I guess I’m screwed then.”
After reading the Miranda rights, which defendant indicated he understood, Detective Vigon asked him five or six times whether he “want[ed] to come talk to us” or whether he “want[ed] to come back to Headquarters and give [them] a statement.” Defendant did not answer directly, and instead asked the detectives “a barrage of questions” “pumping” them for specific information about the case, and then said he wanted to speak with his lawyer.
The detectives then collected defendant’s DNA samples and left. The entire visit lasted somewhere between 10 to 20 minutes.
Defendant moved to exclude from evidence his statement about being “screwed” because law enforcement had his DNA. He argued, among other things, that the statement violated his Fifth Amendment right to silence and Sixth Amendment right to counsel.
The court concluded that there was no Fifth Amendment violation because “a brief statement informing an in-custody defendant about the evidence that is against him is not the functional equivalent of an interrogation” and credited Detective Vigon’s testimony that he made the statement about defendant’s DNA only in response to questions by defendant. The court further concluded that “[e]ven if that were not the case,” Detective Vigon’s statement was “not the functional equivalent of interrogation” because it “only served to explain to defendant why he was being arrested and why they were seeking his DNA.” “Based on the totality of the circumstances, the defendant’s statements were voluntary and spontaneous and not in response to custodial interrogation or the functional equivalent of custodial interrogation, and they were made before defendant asked to speak to his counsel.”
The court also concluded that there was no Sixth Amendment violation because, among other things, Detective Vigon “did not deliberately elicit the statement.”
B
There Was No Sixth Amendment Violation
The Sixth Amendment to the federal Constitution entitles a criminal defendant “‘to have the Assistance of Counsel for his defense.’ This right ‘attaches “‘at or after the initiation of adversary judicial criminal proceedings . . . .’” After it both attaches and is invoked, any incriminating statement the government deliberately elicits from a defendant in counsel’s absence is inadmissible at that defendant’s trial.’” (People v. Huggins (2006) 38 Cal.4th 175, 244-245.) The inquiry into whether a government agent “‘deliberately elicited’” an incriminating statement is “‘objective and does not focus on the subjective intentions of the state officer.’” (Id. at p. 245.) “‘The Sixth Amendment is violated only by deliberate action, not “whenever--by luck or happenstance--the State obtains incriminating statements from the accused after the right to counsel has attached.”’” (Ibid.)
Here, we conclude that the detectives did not deliberately elicit incriminating statements from defendant. Detective Vigon’s first comment on entering defendant’s cell was that defendant was under arrest for burglary and attempted rape. The trial court correctly concluded that this statement was not likely to elicit an incriminating response. It was defendant who asked how the detectives “kn[e]w it was him” and started asking questions about the crime. It was in response to these questions that Detective Vigon said they found defendant’s DNA at the scene, and defendant made his incriminating response. As our Supreme Court has noted, the Sixth Amendment is not violated when law enforcement officials reply to a defendant’s questions and do not solicit any response. (People v. Huggins, supra, 38 Cal.4th at p. 245.) Given these facts, we cannot say that the detectives “intentionally created a situation likely to induce [defendant] to make incriminating statements without the assistance of counsel.” (People v. Frye (1998) 18 Cal.4th 894, 993.) There was no Sixth Amendment violation.
C
There Was No Fifth Amendment Violation
The Fifth Amendment to the federal Constitution provides that “No person . . . shall be compelled in any criminal case to be a witness against himself . . . .” Consistent with the Fifth Amendment, Miranda requires that prior to any “custodial interrogation,” the witness must be advised that he has the right to remain silent, that any statement he makes may be used as evidence at trial, and that he has the right to have an attorney, either appointed or retained, present during questioning. (Miranda v. Arizona, supra, 384 U.S. at p. 444 [16 L.Ed.2d at pp. 706-707].) Failure to provide these warnings precludes the use of any statements made by the witness as evidence at trial. (Ibid.)
As used in Miranda, “‘interrogation’” “‘refers not only to express questioning, but also to any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect.’” (People v. Haley (2004) 34 Cal.4th 283, 300.) “‘A practice that the police should know is reasonably likely to evoke an incriminating response from a suspect thus amounts to interrogation. But, since the police surely cannot be held accountable for the unforeseeable results of their words or actions, the definition of interrogation can extend only to words or actions on the part of police officers that they should have known were reasonably likely to elicit an incriminating response.’” (Ibid.)
Here, defendant argues that the detectives interrogated him within the meaning of Miranda because Detective Vigon twice told him they had found his DNA at the crime scene linking him to the charged rape and burglary and “[t]he detective’s mention of this particular kind of evidence foreseeably would have led [defendant] to make exactly the kind of incriminating statement he made.” We disagree because the detective’s words and actions were not such that they should have known would likely elicit an incriminating response. Detective Vigon simply told defendant he was under arrest and indentified the crimes for which he was under arrest. It was defendant who asked how Vigon knew “it was him,” to which Vigon answered truthfully and to the point that they had found his DNA at the crime scene. Detective Vigon did not belabor his response or provide extra information. It again was defendant who asked further questions of Detective Vigon while he was reading the Miranda warnings, one of which was confirming whether the detectives had his DNA. Detective Vigon again answered truthfully and to the point that they did. It was then that defendant made his incriminating statement. Nothing in this exchange rose to the level of an interrogation within the meaning of Miranda. Accordingly, there was no Fifth Amendment violation.
III
The Court Did Not Err In Denying Defendant’s Wheeler/Batson Motion
Defendant contends the trial court erred in denying his Wheeler/Batson motion directed at the prosecutor’s peremptory challenge of two African-American prospective jurors, C. G. and M. T. In defendant’s view, the trial court used the wrong standard when it found that defendant had not made a prima facie showing of discrimination. We disagree.
A
Facts From Jury Selection
During voir dire, the court asked if “[a]nybody ha[d] particular religious or moral scruples that would make it difficult for you to judge another person.” C. G. raised her hand, and the following colloquy occurred:
“THE COURT: Do you belong to a religious group that takes a position on something like that?”
“PROSPECTIVE JUROR [C. G.]: Yes.
“THE COURT: What is that?
“PROSPECTIVE JUROR [C. G.]: One of Jehovah’s Witnesses.
“THE COURT: And one of the tenets of that religion is what?
“PROSPECTIVE JUROR [C. G.]: I just don’t think it’s my place to judge another person.
“THE COURT: All right. So if you were -- after you hear all of the evidence in this case, if you’re selected to serve, you’re going to hear some evidence, you’ll hear the arguments of counsel, then you’re going to be asked to go back to the jury room and talk with the other jurors about the evidence, about the law, and vote.
“Are you
“PROSPECTIVE JUROR [C. G.]: I would do the best I can and, you know, consider all the evidence
“THE COURT: Well, I mean, are you[] going to feel like you are violating your religion to even vote?
“PROSPECTIVE JUROR [C. G.]: To what?
“THE COURT: I’m wondering if your religion will prevent you from you even exercising a vote one way or the other?
“PROSPECTIVE JUROR [C. G.]: I don’t think so. I don’t think so.
“THE COURT: But you’re uncomfortable. I don’t want to put words in your mouth. Could you explain what
“PROSPECTIVE JUROR [C. G.]: I would just have to do some research because I’m fairly new as one of Jehovah’s Witnesses, and I’m not really sure.
“THE COURT: Research on what, you mean with your religion?
“PROSPECTIVE JUROR [C. G.]: On the particulars of like judging and things of that nature. It’s not against my religion to serve as a juror. I know that.
“THE COURT: So -- okay. All right.”
Prospective Juror M. T. also said she would have a hard time judging someone else, which resulted in the following colloquy between defense counsel and M. T.
“[DEFENSE COUNSEL]: Did you tell us that you would have a hard time judging someone else?
“PROSPECTIVE JUROR [M. T.]: (Nodding head.)
“[DEFENSE COUNSEL]: And why did you say that?
“PROSPECTIVE JUROR [M. T.]: Because sometimes you wouldn’t know the whole story, you know.
“[DEFENSE COUNSEL]: You understand that in our system of justice, that the story that you will learn is one that is told here in court, and only here in court?
“PROSPECTIVE JUROR [M. T.]: Uh-huh.
“[DEFENSE COUNSEL]: Do you have a problem with that, is that what you were saying you have a problem thinking that things would be held back from you, that you wouldn’t get the whole story?
“PROSPECTIVE JUROR [M. T.]: No. It’s more philosophical. I mean, there are -- we’re going to have two different sides of the same situation, and to me, you know, we don’t know all of the background. We may not hear everything that happened. I mean, we’re just going to have two different perspectives for the same event.
“[DEFENSE COUNSEL]: If you are selected as a juror and you are sworn to follow the judge’s instructions, would you be able to do that?
“PROSPECTIVE JUROR [M. T.]: Yes, I would.
“[DEFENSE COUNSEL]: And your philosophical questions, would they interfere with your ability to sit as a juror?
“PROSPECTIVE JUROR [M. T.]: Well, I would think that you would have to follow the law, so that would have to take precedence.
“[DEFENSE COUNSEL]: Is there anything that you know about yourself that we should know that may impact on our decision whether or not you would fairly serve as a juror other than what you’ve told us?
“PROSPECTIVE JUROR [M. T.]: No.”
The prosecutor exercised his first challenge against C. G. After the prosecutor excused M. T., defense counsel made a Wheeler/Batson motion and the following colloquy occurred:
“[DEFENSE COUNSEL]: There were two panelists here, [C. G.] and [M. T.] [who] were Black, and there are four altogether. One is now in the jury box. And number two, and then there’s someone in the audience [who]’s also Black, exercising challenges in that way. [¶] . . . [¶] . . . Exercising challenges in that way, I think I have to raise an issue here, and I would object to the excusing of those two jurors without some explanation for that.
“[THE COURT]: The motion is denied. I don’t think there’s been a prima facie showing that those challenges were raised based -- I think both of those jurors indicated reasons why they were reluctant to serve as jurors in this case.
“[M. T.] stated that she didn’t feel comfortable making a decision of this kind.
“[C. G.] stated, she initially stated that she couldn’t be fair in this case, although eventually she came around and said that she thought she could be, but she had questions about her religion.
“I am not satisfied there is a prima facie challenge that this was race based.
“The motion is denied.”
B
Law Regarding Wheeler/Batson
“A prosecutor’s use of peremptory challenges to strike prospective jurors on the basis of group bias--that is, bias against ‘members of an identifiable group distinguished on racial, religious, ethnic, or similar grounds’--violates the right of a criminal defendant to trial by a jury drawn from a representative cross-section of the community under article I, section 16 of the California Constitution,” and “also violates the defendant’s right to equal protection under the Fourteenth Amendment to the United States Constitution.” (People v. Avila (2006) 38 Cal.4th 491, 541.)
The United States Supreme Court reaffirmed the three-prong Batson test to be used by trial courts when motions are made challenging peremptory strikes: “First, the defendant must make out a prima facie case ‘by showing that the totality of the relevant facts gives rise to an inference of discriminatory purpose.’ [Citations.] Second, once the defendant has made out a prima facie case, the ‘burden shifts to the State to explain adequately the racial exclusion’ by offering permissible race-neutral justifications for the strikes. [Citations.] Third, ‘[i]f a race-neutral explanation is tendered, the trial court must then decide . . . whether the opponent of the strike has proved purposeful racial discrimination.’” (Johnson v. California (2005) 545 U.S. 162, 168 [162 L.Ed.2d 129, 138].) The same three-prong test has been endorsed by our Supreme Court for proof of state constitutional claims. (People v. Bell (2007) 40 Cal.4th 582, 596.)
C
The Court Correctly Found No Prima Facie Showing Of Discrimination
Defendant contends the trial court erred in failing to find a prima facie showing of discrimination. He argues that the court “employed a higher standard for a threshold showing of a prima facie case than that which is required by the United States Supreme Court.”
In Johnson, the United States Supreme Court resolved a conflict between federal law and California law on the proof required to establish a prima facie case of bias under Batson, rejecting Wheeler’s “more likely than not” standard in favor of Batson’s “‘inference of discriminatory purpose.’” (Johnson v. California, supra, 545 U.S. at pp. 164, 168 [162 L.Ed.2d at pp. 135, 138].) Under Batson as reaffirmed by Johnson, “the defendant must make out a prima facie case ‘by showing that the totality of the relevant facts gives rise to an inference of discriminatory purpose.’” (Johnson, at p. 168 [162 L.Ed.2d at p. 138].)
Here, contrary to defendant’s argument, the record does not demonstrate which standard the trial court used. In this procedural setting, we review the record de novo, apply the Johnson standard and “resolve[] the legal question ‘whether the record supports an inference that the prosecutor excused a juror on the basis of race.’ [Citations.]” (People v. Buchanan (2006) 143 Cal.App.4th 139, 145-146.) Here, it does not. C. G. raised her hand when the court asked if anybody would have religious or moral scruples that would make it difficult to judge another person. When questioned by the court, she explained that she did not think it was her place to judge another persoN.M. T. told the court that she would have a hard time judging someone else because “you wouldn’t know the whole story” and “may not hear everything that happened.” These responses provided race-neutral justifications for excusing these prospective jurors. In addition, we also consider the fact that the prosecutor left one African-American on the jury as indicating his “‘good faith in exercising peremptories.’” (People v. Stanley (2006) 39 Cal.4th 913, 938, fn. 7.) In light of these facts, we conclude defendant failed to meet the reasonable inference standard.
Defendant also takes issue with the fact “the trial court came up with its own justifications as to why the People probably excused [C. G and M. T.].” However, the California Supreme Court has implicitly condoned the trial court’s own assessment of potential race-neutral grounds for excusal of prospective jurors in finding that a prima facie showing of discrimination had not been made. (See, e.g., People v. Williams (2006) 40 Cal.4th 287, 309-313.)
IV
The Court Did Not Err In Excluding Certain Third Party Culpability Evidence
Defendant contends the trial court erred in excluding from evidence Luna’s rap sheet that showed numerous theft related prior convictions. According to defendant, the rap sheet was admissible to show Luna’s “motive to steal” and “opportunity to commit the [charged] robbery, which took place in [Luna’s] neighborhood.” We disagree.
At trial, defendant moved to admit Luna’s rap sheet arguing that such evidence, along with evidence tying him to the current crimes, would be “sufficient to raise a reasonable doubt that [defendant] was the responsible party.” He contended that exclusion of the rap sheet would violate his rights to due process and to present a defense. The court ruled that the rap sheet was not admissible because it was “improper character evidence and unduly prejudicial and confusing, outweighing any possible probative value.”
Evidence of prior crimes offered merely to show that a third party was more likely to be the perpetrator of the current crimes is generally inadmissible. (People v. Davis (1995) 10 Cal.4th 463, 501; Evid. Code, § 1101, subd. (a).) An exception is where prior crimes evidence is “relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident . . . .)” (Evid. Code, § 1101, subd. (b).) These rules apply to evidence raising the inference of third party culpability. (Davis, at pp. 500-501.)
Evidence offered to show that a third party was more likely the perpetrator of the charged crimes because he had a history of violence is properly excluded under Evidence Code section 1101, subdivision (a) because it is not offered to show a fact other than the third party’s criminal disposition. (People v. Davis, supra, 10 Cal.4th at p. 501.) “Such evidence does not amount to direct or circumstantial evidence linking the third person to the actual perpetration of the crime.” (Ibid.) The same is true here. Despite defendant’s attempt to argue for the first time on appeal that Luna’s rap sheet related to motive and opportunity, it did not so relate, and the evidence was really an attempt to show that Luna was more likely to have been the perpetrator of the current crimes because he had a history of committing theft related offenses. Exclusion of this evidence was therefore proper (People v. Davis, supra, 10 Cal.4th at p. 501), and it did not hamper his defense of third party culpability because defendant was allowed to present other evidence suggesting that Luna might have committed the current crimes. On this record, there was no error, constitutional or otherwise, in excluding Luna’s rap sheet from evidence.
Defendant does not cogently explain how the rap sheet would establish motive or opportunity. He simply asserts that evidence of prior theft related offenses “certainly explained [Luna] had a motive to steal (as it apparently was his chosen livelihood), as well as the opportunity to commit the [present] robbery, which took place in his neighborhood.”
On appeal, defendant argues that “nowhere did [trial] counsel say he was seeking to admit this item of information to suggest to the jury that Luna had the propensity to commit burglaries in his neighborhood.” To the contrary, when arguing for admission of Luna’s rap sheet, trial counsel argued that “evidence of his prior convictions is circumstantial evidence, too from which the jury can infer[,] wait a minute[,] [t]here may be another explanation here relating to Jesse Luna.”
V
Failure To Instruct On The Corpus Delicti Rule Pursuant To CALCRIM No. 359 Was Harmless
Defendant contends the trial court prejudicially erred in failing to instruct sua sponte pursuant to CALCRIM No. 359 that his convictions could not be based solely on his out-of-court statement that he guessed he was “screwed” when Detective Vigon told him his DNA was found at the crime scene. We disagree.
CALCRIM No. 359 sets forth the corpus delicti rule, which requires proof of “the fact of injury, loss, or harm, and the existence of a criminal agency as its cause.” (People v. Alvarez (2002) 27 Cal.4th 1161, 1168.) Such an instruction must be given sua sponte, where the People rely in part on such statements. (Id. at pp. 1170, 1178, 1180.)
CALCRIM No. 359 reads as follows: “The defendant may not be convicted of any crime based on (his/her) out-of-court statement[s] alone. You may only rely on the defendant’s out-of-court statements to convict (him/her) if you conclude that other evidence shows that the charged crime [or a lesser included offense] was committed. [¶] That other evidence may be slight and need only be enough to support a reasonable inference that a crime was committed. [¶] The identity of the person who committed the crime [and the degree of the crime] may be proved by the defendant’s statement[s] alone. [¶] You may not convict the defendant unless the People have proved (his/her) guilt beyond a reasonable doubt.”
Here, failure to give CALCRIM No. 359 was harmless because “the corpus delicti [wa]s convincingly established independently of admissions.” (People v. Beagle (1972) 6 Cal.3d 441, 456.) A man came inside G.’s house, hit her, kissed her on her lips, touched her legs, vagina, and breasts, and took her money and purse. Despite this evidence, defendant claims that had CALCRIM No. 359 been given, the jury might have reached a verdict more favorable to him, focusing on the fact that the evidence tying him to the crimes (other than his out-of-court statement) was the DNA evidence that he claimed was planted. Defendant’s argument loses sight of the gist of the corpus delicti rule. “All that need be shown by independent evidence . . . is that a crime has been committed by someone. [Citations.] Proof of the corpus delicti does not require proof of the identity of the perpetrators of the crime, nor proof that the crime was committed by the defendant. [Citations.]” (People v. Cobb (1955) 45 Cal.2d 158, 161-162.) The evidence we have just recounted, apart from defendant’s out-of-court statement, proved that crimes were committed by someone and rendered the instructional error harmless.
We use the state standard of prejudice despite defendant’s argument that his federal constitutional rights to due process and to present a complete defense were implicated by the court’s failure to give instructions regarding corpus delicti. As the California Supreme Court has noted, “the corpus delicti rule is not a requirement of federal law.” (People v. Alvarez, supra, 27 Cal.4th at p. 1173.)
VI
The Prosecutor Did Not Commit Misconduct In Closing Argument
Defendant contends the prosecutor committed misconduct in his closing argument when he “rhetorically asked the jury how Luna could have gotten [defendant]’s DNA to plant at the crime scene, then added that if any evidence of that existed, the defense would have brought it in.” Specifically, during closing argument the prosecutor argued: “How did Jesse Luna obtain [defendant]’s semen? [¶] I mean, really. [¶] Has that ever been addressed, presented to you tangibly? [¶] And I would suggest to you the reason that there’s no ability to present that evidence is because that evidence doesn’t exist. [¶] And if that evidence existed out there, you would have gotten it. They would have given it to you to give this theory some legs.” Defense counsel objected to the argument, claiming “[t]here is no burden on the Defense to present evidence, and shifting the burden is improper argument.” The trial court overruled the objection.
The applicable federal and state standards regarding prosecutorial misconduct are well settled. “‘A prosecutor’s rude and intemperate behavior violates the federal Constitution when it comprises a pattern of conduct “so egregious that it infects the trial with such unfairness as to make the conviction a denial of due process.” [Citations.] But conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it involves “‘the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury.’” [Citations.]’” (People v. Gionis (1995) 9 Cal.4th 1196, 1214-1215.)
A prosecutor does not commit misconduct by pointing to “a defendant’s failure ‘to introduce material evidence or to call logical witnesses.’” (People v. Wash (1993) 6 Cal.4th 215, 263.) Here, the prosecutor’s argument fits squarely within this rule. One of defendant’s theories was that Luna might have been the real perpetrator and defendant’s DNA was planted at the crime scene. It was a fair comment on the state of the evidence for the prosecutor to argue that defendant failed to support his theory that the evidence was planted.
In an attempt to avoid application of this rule, defendant argues that because the prosecutor conceded in closing argument that the possibility of DNA transfer does exist, there was no defense failure to present evidence on which the prosecutor could properly comment. He is mistaken. A fair reading of the prosecutor’s argument was that he conceded the theoretical possibility of transfer but not in this case because of the lack of evidence supporting transfer. Defendant further argues that to establish a defense of third party culpability, he needed to present evidence only tending to show that another party committed the charged offenses, and he did this. This assertion also does not help defendant’s allegation of prosecutorial misconduct. While defendant did present evidence that Luna matched the description of the suspect, it was still a fair comment on the evidence to question the lack of evidence that DNA transfer occurred here. In sum, there was no misconduct. Given our conclusion, we also reject defendant’s assertion that the misconduct violated his federal constitutional rights.
The prosecutor’s argument on transfer was as follows: “And the People concede that transfer occurs and that the possibility exists out there that it was brought there, but you have to ask yourself whether or not it’s a reasonable possibility based on what you have here.”
VII
There Was No Cumulative Prejudice
Defendant contends the cumulative effect of the alleged errors requires reversal of the judgment. Having found only one harmless error, there are no multiple errors to accumulate, and defendant’s contention fails.
VIII
The Upper Term Consecutive Sentence Imposed Here Did Not Violate Defendant’s Right To A Jury Trial
The court imposed the upper term because of defendant’s “non-stop record of criminal convictions over the last 25 years.” The court imposed a consecutive term for the sexual battery because it was “a separate crime” and “not part of a single . . . course of conduct.”
To preserve the issue for federal review, defendant contends the imposition of the upper term consecutive sentence here violated his right to a jury trial under the Sixth Amendment to the United States Constitution. Defendant acknowledges that we are bound to follow the decisions in People v. Black (2007) 41 Cal.4th 799, 820-823 and People v. Sandoval (2007) 41 Cal.4th 825, 836-837, rejecting these arguments. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) In light of these decisions, neither the imposition of the upper term nor of consecutive sentencing violated the Sixth Amendment.
DISPOSITION
The judgment is affirmed.
We concur: SIMS, Acting P.J., RAYE, J.