Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Fresno County No. 7903393 M. Bruce Smith, Judge.
Scott Concklin, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Michael P. Farrell, Senior Assistant Attorney General, Lewis M. Vasquez, Supervising Deputy Attorney General, Lloyd G. Carter and Lewis A. Martinez, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Ardaiz, P.J.
Appellant Hua Vang stands convicted, following a jury trial, of forcible rape (Pen. Code, § 261, subd. (a)(2); count 1) and forcible rape in concert (§§ 261, subd. (a)(2), 264.1; count 2). As to each count, he was found to have personally used a firearm in commission of the offense (§ 12022.3, subd. (a)), and the jury further found, within the meaning of section 667.61, subdivision (a), that two or more circumstances under section 667.61, subdivision (e) applied, in that the offenses were committed during a burglary (id., subd. (e)(2)), a dangerous weapon was used (id., subd. (e)(4)), and a victim was bound (id., subd. (e)(6)). Appellant was sentenced to prison for a total unstayed term of 25 years to life plus four years, to be served consecutively to the sentence he was already serving in another case. In this timely appeal, he raises various claims of trial and sentencing error, as well as ineffective assistance of counsel. For the reasons that follow, we will vacate the sentence on count 2 and remand the matter for resentencing thereon, but otherwise affirm.
All statutory references are to the Penal Code unless otherwise stated.
FACTS
The Charged Offenses
Kh. and her family were from Laos. Kh. spoke the green dialect of Hmong. On April 28, 1998, the family lived in Pinedale. Present in the home that night were Kh. and her husband, Ch., and the four of their children who were under age four and slept in the parents’ bedroom; their oldest son V. and his wife, L., and baby, who lived in their own room; sons C. and X., who shared a room; and daughters K. and O., who shared a different room. Kh. and Ch. made a living mostly by selling produce at a farmers’ market.
For the sake of clarity and the family’s privacy, we refer to family members by first name or initial, with respect to both the charged and uncharged offenses. No disrespect is intended.
Before going to bed that night, the family closed all of the windows in the house. At some point, some people broke open the door and came inside Kh. and Ch.’s room. When they turned on the light, Kh. saw that one was holding a handgun. It was black and looked like the kind police officers carry. The man holding it wore a ski mask over his face and told them not to move or he would shoot them. He spoke in the white dialect of Hmong. Kh. could hear her children crying elsewhere in the house.
Three other men, all of whom also had something covering their faces and black gloves with no fingertips, came into the room and bound Ch. with gray duct tape. They tightly bound his feet and hands, and also put tape over his mouth and eyes. Two of the men left to go to the other rooms. Kh. could hear them talking in English. The remaining two then dragged Kh. out of bed and demanded money. When she said they had none, one of the men disputed this, saying the couple had just been to the market. The one who did not have the gun started kicking Ch. hard in the chest. Thinking Ch. might be dying, Kh. started begging the men, saying, “We are all Hmong and I beg you if you need something, just ask nicely, don’t beat us up.” They said that if the couple did not give them the money, they would be beaten. They asked if the couple wanted to die, then the one who kicked Ch. put tape over Kh.’s mouth and bound her hands and feet. One pulled off the necklace Kh. was wearing.
There were four intruders in Kh.’s room, but she thought there could have been two more in the house because she could hear someone speaking English.
Kh. knew the person who bound her was Hmong. She believed all four were Hmong, because they understood her when she spoke Hmong to them.
While this was going on, two people kicked down the locked door to V. and L.’s room. The intruders’ faces were covered. L. could s one’s fingers, but not the palm of his hand. One had a dark handgun. L. could hear the voices of other intruders in the home, but could not tell how many.
One of the intruders bound L.’s and V.’s ankles and wrists with duct tape. He also taped V.’s eyes. When the baby began to cry, one told L. to shut him up or he would kill him. One of the men went and got a bottle for the child. The intruders searched the room and took L.’s wedding rings from her fingers.
The intruders left the room for a short time, then returned. One asked V. how much he weighed. When V. told him, the man picked V. up and carried him away. After V. was taken away, L. and the baby were left alone, but often one of the intruders was with them. Throughout the ordeal, the intruders spoke to L. in English. She did not recall hearing them speak in another language.
Meanwhile, the intruders asked Kh. which child she cared about most. She told them that she loved all of her children the same. A short time later, V. was carried into the room. The intruders knew he was the one Kh. cared about the most. They beat him in front of Kh. and demanded money. They threatened that if she did not give it to them, they would beat him to death. Kh. told them to look under the bed, where she had a few hundred dollars. The one without the gun retrieved the money, but they said it was not enough. They then began searching the room. Kh. could hear her children crying and the intruders in every other room, searching. They continued to search until they found Kh.’s silver bar and silver coins that were used to decorate Hmong clothing. They took those and another necklace. The items were never recovered.
In Hmong culture, the oldest son has special significance, as he is the one who takes care of the parents.
At some point, it sounded to L. as if the intruders were getting frustrated because they could not get what they wanted. L. heard one in the hallway say, “I’m going to go and get my groove on.” One then came and grabbed her shorts and tried to pull them down. When she managed to hold on to them, the man struck her in the arm, but left the room. L. could hear her sister-in-law crying, and one of the intruders telling someone to go and get salt and a knife.
K., who was 15 at the time, had been awakened when someone came into her room and turned on the light. The man told her to get up, so she woke her sister, O., who was 13 or 14 at the time. The girls were told to go to C.’s room. K. only saw one man. He was wearing a black mask and had a grayish-colored gun.
K., O., C., and X. were all on one bed in the boys’ room. Two other men came in. They were also wearing masks. They bound the youngsters’ feet and hands with duct tape. The children were then left alone in the room. K. could hear Ch. saying that they did not have any money or something and Kh. begging them to stop.
Two of the intruders, who spoke to the children in English, took O. back into the girls’ room. O. was not gone long. She told K. to tell them that she was on her period and that they would leave her alone. One of the men then carried K. into the girls’ room. There were two men in the room altogether. They took the tape off of her ankles and laid her on O.’s bed. K. told them that she was on her period, but they did not say anything. One of the men then started touching her breasts, and he took off her shorts. The other was holding a gun. She told them no, but they threatened to bring in her father and beat him. The one who was touching her removed his pants, spread open her legs, and tried to penetrate her vagina with his penis. He and the other one then switched. The one who had first tried to rape her took the gun. The other one then took down his pants and raped her for several minutes. When he was finished, he got off of her and wiped her with a towel or blanket. He also wiped his penis. She pulled her shorts back on and then somebody carried her back into C.’s room.
K. told the police and the nurse who examined her that both men put their penises inside her vagina. She testified at trial that she told the police officer the truth. As of trial, she did not remember whether the first one actually penetrated her.
Eventually, things grew quiet and, after hearing the front door shut, L. freed herself and then helped free the others. Because the telephone had been hidden, Ch. went outside and called the police from the phone of a nearby relative. K. came into her parents’ room. She was crying and related that one of the men had tied her hands and then forced her to have sex. She said they did that to her and she would die. The police found her in the closet in her parents’ room. One of the dining room windows was found to be broken.
In the Hmong culture, being raped affects a woman’s ability to marry. Even as of the time of trial, K.’s husband had not been told about what happened. If he knew K. had been raped, he would be disgusted and would leave her, even though it was not her fault.
Fresno Police Officer Morrill took a statement from L. immediately after the incident. L. described one of the assailants as standing five feet three inches tall, weighing 160 pounds, and having black hair and a light green T-shirt on his head and covering his face. Morrill also interviewed K. She described the person who took the tape off her legs and who was one of her rapists as being five feet three inches tall and weighing 160 pounds, possibly wearing a green shirt, and with some kind of shirt covering his face.
The DNA Evidence
A sexual assault examination was performed on K. early on the morning of April 28, 1998. Vaginal swabs were taken, as was a sample of her blood, and all were turned over to police. On December 7, 2001, the sexual assault kit was transported to the Department of Justice (DOJ) laboratory in Fresno for DNA analysis. At the time, DOJ had a database called CODIS (Combined DNA Indexing System) that was coming into effect, and so all of the old cases that the police department had in storage were being sent to DOJ to be analyzed to see if there was any DNA evidence that could be submitted to the CODIS program.
Criminalist Ken Penner examined the evidence in November 2002. Finding spermatozoa on a vaginal smear slide, he prepared two of the vaginal swabs for submittal to the DNA laboratory in Richmond, and also included a stain card he prepared from the sample of K.’s blood. Those samples were shipped to the Richmond laboratory on November 7, 2002.
Because this was a cold hit grant case, the protocol required that actual DNA analysis be performed at DOJ’s DNA laboratory in Richmond.
Diane Coffman, a senior criminalist at the DOJ Jan Bashinski DNA Laboratory in Richmond, began her analysis of the evidence on December 13, 2002. She first obtained a 13-loci STR profile of the DNA in the reference stain of K.’s blood. She then tested one of the submitted vaginal swabs. The DNA profile she obtained for the non-sperm fraction of the sample matched the reference for K., meaning this was strong scientific evidence that the two samples came from the same person.
At trial, Coffman explained in depth the procedures she used.
Coffman obtained a 13-loci DNA profile for the sperm fraction of the sample from the vaginal swab. A search was then done of CODIS. The DNA profile from the sperm fraction was uploaded into CODIS to search against the convicted offender database to see if there was a match. CODIS produced a potential match between a specimen submitted by High Desert State Prison for appellant and the forensic unknown. There was an exact match at all 13 loci searched, as well as the gender marker. As a result, Coffman requested that a reference sample be obtained from appellant.
The results showed only one male. Coffman had seen cases in which she obtained a mixture in the sperm fraction, meaning DNA from multiple males was on the particular vaginal swab. In K.’s case, there was no mixture detected in the non-sperm fraction and no evidence of a minor contributor. There were so many epithelial cells from K., however, that they overwhelmed the sample, so that if there were any from someone else, they were not detectable with the system currently used for DNA typing.
A known reference sample is required for two reasons. First, the convicted offender samples that are in CODIS do not have a chain of custody behind them. The laboratory receives thousands of samples a day; they come in bulk through the mail and are not handled in the same way as casework evidence. A confirmation sample, by contrast, has a chain of custody behind it. Second, the reference sample insures discovery of any mix-up at the point of collection when the convicted offender was first sampled. Such a mix-up would not otherwise be caught in the data bank.
In November 2005, Fresno Police Detective Hernandez was handling cold cases for the sexual assault unit. In response to DOJ’s report of a match and request for a reference sample, he located appellant at High Desert State Prison and took possession of two vials of blood that he witnessed being drawn from appellant. The blood was received by the Fresno laboratory on December 28, 2005, and forwarded to the Richmond DNA laboratory on January 12, 2006.
Jonathan Schell, a senior criminalist at the Richmond laboratory, obtained a 13-loci genetic profile from appellant’s blood and compared it to the original profile obtained by Coffman for the sperm fraction of the vaginal swab taken from K. There was an exact match at every genetic marker. Schell then performed calculations for appellant’s DNA sample in terms of the three major racial/ethnic groups in the United States: Caucasian, African-American, and Hispanic. The possibility that a random unrelated individual would, by chance, possess this profile was estimated to occur in approximately one in 2.2 quintillion for African-Americans, one in 290 quadrillion for Caucasians, and one in 1.5 quintillion for Hispanics.
Use of these three racial/ethnic groups is dictated by protocol in the Richmond laboratory. According to Schell, for purposes of understanding how rare a genetic profile is, those three racial/ethnic groups suffice under almost all circumstances, because what is being looked at is if the genetic profile came not from the suspect, but rather from a random man, who would be in that random man population. Only if the crime occurred in an isolated area where the majority population was, for example, American Indian would he be concerned about the chance that the random man was American Indian, in which case a database for American Indians would be necessary.
Schell testified at the preliminary hearing in this case, at which time defense counsel felt there should also have been a comparison made to an Asian population. Based on information contained in the National Research Council (NRC) II report, one would expect to see no more than about a hundred-fold difference between populations. That book was written in 1996, however, and used a different genetic marker system than is presently used. The numbers being obtained now are a little bigger and so there might be a thousand-fold difference between population groups. After the preliminary hearing, Schell performed the calculations for an Asian population, and determined that a random Asian with appellant’s genetic profile would be found one time in approximately 1.4 quadrillion. As Earth’s population is approximately 6.5 billion people, and a billion is one with nine zeros after it, while a quadrillion is one with 15 zeros after it, this was strong scientific evidence that appellant was the source of the sperm fraction on K.’s vaginal swab. According to Schell, either appellant left the sperm or “a very rare and unlikely event occurred” in that “some other random unknown person who also happens to possess the exact same genetic profile as [appellant] is the true perpetrator,” and the statistics Schell provided “give strength to how rare that event might occur.”
Schell explained that under the Richmond laboratory’s procedures, “[s]trong evidence means that the frequency of the profile has to be such that it’s rarer than 1 in 10 million.”
This evidence was admitted pursuant to Evidence Code section 1108 and, it appears, Evidence Code section 1101, subdivision (b).
In June 1998, Mang, his parents, and his siblings lived in Clovis. Mang was the oldest son; his brothers were U. and T., and his sisters were L. and E. Mang and U. shared one bedroom; L., who was 18, had her own room; and the parents, T., who was nine or 10 years old, and E., who was a couple of years younger than him, slept in the third bedroom.
Sometime in the middle of the night of June 24, 1998, Mang awoke to the light being turned on in his room. A man wearing a ski mask was standing in front of him, holding a stick to his face and telling him to turn around and put his face down. Mang also saw another man wearing a ski mask who was standing next to U., and a third man in the hallway. The man in the hallway had a bandanna across the bottom part of his face. He was holding a handgun that appeared to be a semiautomatic.
The men in the bedroom tore the telephone out of the wall socket and used the cords to bind Mang’s ankles and wrists. They also bound his ankles and wrists with gray duct tape and duct-taped his eyes. U. was also bound. One intruder asked if Mang thought he was a tough guy and whether Mang wanted him to let Mang go so the two could fight. Mang said no. The intruders then asked why Mang’s legs looked so strong. When Mang said it was because he played volleyball, the one said that if Mang wanted to keep playing volleyball, he needed to tell where the money was. The intruders took a gold necklace off of Mang’s neck. Mang never saw it again.
After that, the intruders proceeded to go and ask Mang’s mother where the money was. Mang could hear them hitting her. At one point, the intruders took T. and told him that if he wanted them to stop hitting the mother, he was going to show them the money. After that, they came into Mang’s room and asked who was the oldest. When Mang said he was, they asked him where his mother was hiding the money. When Mang said they did not have any money, one of them struck Mang in the back of the legs with something, then complained that Mang had broken his stick. At some point, Mang felt something hard and small, similar to a gun barrel, being pushed in the small of his back. The intruders mostly spoke in English, but at one point, they spoke Hmong to Mang’s parents.
Mang could also hear people in the kitchen hallway area in the front of the house, and then he heard them go into his sister’s room. He did not know specifically how many intruders there were, although he may have told the police there were seven to eight Asian males involved.
Mang’s room was right next to L.’s room. He heard one of the intruders ask L. if she was still a virgin. When she said yes, the man said that if she wanted to stay that way, she had better tell them where the money was. After that, Mang heard L.’s bed squeaking and her being moved around the bed. At some point, another person went into L.’s room. One of the intruders said, “okay, who is next.” Mang heard someone ask, “are you done yet” and “can I have a turn.” He also heard one of the individuals say, “do you want me to fuck you harder?” He heard the bed squeaking and L. crying and telling them to stop. He estimated this went on for about five to 10 minutes. At some point, someone said something about that “bitch” being “tight.”
When everything got quiet, Mang asked T. if they were gone and to help take the duct tape off Mang’s eyes. Then L. came into Mang’s room. When she removed the duct tape from Mang’s eyes, he saw that she had no bottoms or underwear on. Mang’s mother had had duct tape placed on her face, and his father had duct tape around his head and neck.
Once untied, Mang and his mother ran outside and flagged down a motorist for help. They could not call the police from inside the house because both of their phones were gone.
During the ordeal, the house and garage were ransacked. Game consoles, a VCR, and the printer for the computer were gone. When the family went to bed that night, all of the doors and windows in the house were intact. After the incident, a small break was found in the kitchen window.
On July 17, 1998, as part of the follow-up investigation in this case, Clovis Police Officer Smith went to the Arco Arena in Sacramento to locate appellant. A loaded, black nine-millimeter semiautomatic pistol was found underneath the passenger seat of appellant’s vehicle. Smith described appellant, whom he transported back to Clovis, as being five feet three or four inches tall and weighing approximately 130 to 140 pounds.
Appellant was convicted, by plea, of forcible rape and sexual penetration arising out of the events of June 24, 1998.
DISCUSSION
I
SUFFICIENCY OF THE EVIDENCE
The DNA evidence is set out at length, ante. Appellant says that the non-DNA evidence, by itself, was insufficient to identify him as a perpetrator and, accordingly, to sustain the convictions. He further claims that because the prosecution failed to prove a statistically significant DNA profile match, even the DNA evidence was insufficient to support the convictions. Appellant says the match evidence (the defendant could be the perpetrator) is given weight by the statistical evidence (a certain number of people in the population could be the perpetrator). In a cold hit case such as this one, the argument runs, statistical evidence is relevant and admissible only to show the rarity of the genetic profile in the population, but it is not admissible to show random match probability. Here, the prosecution presented statistics to establish the rarity of the perpetrator’s genetic profile in four racial/ethnic groups, but failed to present sufficient evidence to show that the perpetrator was a member of one of those groups. Because the rarity statistics thus failed to eliminate the possibility that the perpetrator was a member of a racial/ethnic group for which statistics were not provided, appellant contends, the DNA match evidence was without probative weight, and reversal for insufficiency of the evidence is required.
Even where something as potentially complicated as DNA evidence is concerned, the basic rules do not change. The test of sufficiency of the evidence is whether, reviewing the whole record in the light most favorable to the judgment below, substantial evidence is disclosed such that a reasonable trier of fact could find the essential elements of the crime beyond a reasonable doubt. (People v. Johnson (1980) 26 Cal.3d 557, 578; accord, Jackson v. Virginia (1979) 443 U.S. 307, 319.) Substantial evidence is that evidence which is “reasonable, credible, and of solid value.” (People v. Johnson, supra, at p. 578.) An appellate court must “presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.” (People v. Reilly (1970) 3 Cal.3d 421, 425.) An appellate court must not reweigh the evidence (People v. Culver (1973) 10 Cal.3d 542, 548), reappraise the credibility of the witnesses, or resolve factual conflicts, as these are functions reserved for the trier of fact (In re Frederick G. (1979) 96 Cal.App.3d353, 367). Furthermore, an appellate court can only reject evidence accepted by the trier of fact when the evidence is inherently improbable and impossible of belief. (People v. Maxwell (1979) 94 Cal.App.3d562, 577.)
We recognize that “mere speculation cannot support a conviction. [Citations.]” (People v. Marshall (1997) 15 Cal.4th 1, 35.) Viewing the evidence presented in this case in accord with the foregoing principles, however, we find it to be “reasonable, credible, and of solid value” – hence, “legally sufficient” (ibid.) – and accordingly conclude it is sufficient to uphold appellant’s convictions.
“‘A determination that the DNA profile of an evidentiary sample matches the profile of a suspect establishes that the two profiles are consistent’ [citation]; hence, the suspect cannot be excluded as the source of the evidentiary sample. This determination is of little significance, however, ‘if the evidentiary profile also matche[s] that of many or most other human beings.’ [Citation.] Thus, while the fact of a match itself is relevant because it means the suspect could be the perpetrator, the probability that he is the perpetrator depends on the frequency with which the genetic profile appears in the population of possible perpetrators, i.e., the rarity of the perpetrator’s profile in the population. [Citation.] The rarer the genetic profile, the more likely the suspect is the source of the evidentiary sample. [Citation.] Thus, astronomical numbers, such as were presented in this case, are powerfully incriminating evidence. [Citation.]” (People v. Johnson (2006) 139 Cal.App.4th 1135, 1147, fn. omitted (Johnson); accord, People v. Venegas (1998) 18 Cal.4th 47, 82; People v. Pizarro (2003) 110 Cal.App.4th 530, 541-542, 576, disapproved on other grounds in People v. Wilson (2006) 38 Cal.4th 1237, 1250-1251.) Accordingly, “[t]he statistical calculation step is the pivotal element of DNA analysis.…” (People v. Barney (1992) 8 Cal.App.4th 798, 817.)
In Johnson, supra, 139 Cal.App.4th 1135, this court dealt for the first time with a cold hit case involving identification of a possible perpetrator through CODIS. The criminalist from the DOJ DNA Laboratory obtained a 13-loci match and, using the product rule, determined that the profile was estimated to occur at random in the general population in about one in 130 quadrillion African-Americans, one in 240 quadrillion Caucasians, and one in 4.3 quadrillion Hispanics. (Id. at p. 1143.) Although the criminalist presented her calculations in terms of random occurrence of the DNA profile among unrelated individuals, she explained that the resulting figures represented an estimation of the rarity of the genetic profile in the population. She also testified that use of the product rule was generally accepted within the scientific community. (Johnson, at pp. 1145, 1252, fn. 18.) We upheld admission of the DNA evidence against claims the methodology involved in cold hit cases had not gained general scientific acceptance under the standard stated in People v. Leahy (1994) 8 Cal.4th 587 and People v. Kelly (1976) 17 Cal.3d 24 (Kelly). (Johnson, supra,139 Cal.App.4th at pp. 1147-1155.) In part, we stated:
The product rule is explained in detail in People v. Soto (1999) 21 Cal.4th 512, 524-525. We assume it to have been the method of calculation used in the present case, although the record is silent on this point.
“Appellant says the questions, ‘“What is the rarity of the DNA profile in the population at large?” and “What is the probability of finding such a DNA profile in the database searched?”’ are two different inquiries that produce two different answers. We agree. We do not agree, however, that the probability of finding a particular DNA profile in the database searched – CODIS – matters. Appellant asks us to consider, by way of example, a case in which a victim describes her attacker, but the attack leaves her blind and unable to engage in an identification procedure. If a suspect is developed based on suspicious actions near the crime scene, appellant says, and if he matches each one of the eight unusual, visible characteristics described by the victim, then the probative value of the match is great. If, on the other hand, the police start looking through [Department of Motor Vehicles] photographs and eventually come across someone who matches all eight characteristics, it is no longer appropriate to ask the random match probability question, i.e., ‘“What are the chances a randomly selected person would just happen to share the eight distinctive visible characteristics as the assailant[?]”’ because the suspect was not randomly selected. Instead, he was selected precisely because he shared those traits. It may be that, in a cold hit case, the relevant question is better phrased as, ‘What is the rarity/frequency of the combination of traits (the genetic profile) in the population of possible perpetrators?’ This does not, however, mean Kelly’s foundational requirements must be met in such a case; … the techniques and procedures are not new, novel, or experimental.” (Johnson, at pp. 1151-1152, fn. omitted.)
Johnson was the applicable precedent at the time of appellant’s trial, and the statistical calculations were similarly presented. Approximately five and a half months after appellant’s trial, the California Supreme Court decided People v. Nelson (2008) 43 Cal.4th 1242 (Nelson), a case involving a cold hit from the state convicted offender DNA database (id. at pp. 1248-1249). In that case, the defendant challenged admission of DNA evidence on the ground the statistical method used to calculate the odds that the crime scene evidence could have come from someone else had not achieved general scientific acceptance under Kelly and its progeny. (Nelson, at p. 1257.) The court summarized his argument thus:
For instance, Schell explained that, if there is a perfect match, “[t]hen we calculate the statistics for the evidence profile, so we put a number to what is the rarity of that evidence profile because the question we want to answer is, … what’s the significance of this match, how often would you expect to find this exact genetic profile in a random person out there in the general population. “The probability that a random unrelated individual would by chance possess this 13 locus STR profile … was estimated to occur in approximately one in” a particular number for each racial/ethnic group for which Schell made calculations. In addressing his use of specific racial/ethnic groups, Schell also stated: “For the purposes of understanding how rare a genetic profile is, those three racial or ethnic groups suffice under almost all circumstances because what we’re looking at is if in fact the genetic profile did not come from the suspect but rather a random man, who would be in that random man population.” When asked whether anything made him doubt that appellant was the person who deposited the sperm found on K.’s vaginal swab, Schell replied, “Either he did or a very rare and unlikely event occurred.… [¶] … [¶] Either he left the sperm or some other random unknown person who also happens to possess the exact same genetic profile as [appellant] is the true perpetrator. And the statistics that I provided give strength to how rare that event might occur.”
“Defendant agrees that using the product rule to calculate the random match probability makes sense when comparing one suspect’s profile with the crime scene evidence because, as he explains, the random match probability ‘estimates the chance that any single, random person drawn from the relevant population would have the same DNA profile as that of the unknown person whose DNA was found at the crime scene.’ But he contends that a match made in a cold hit through a database search is different. He argues as follows: When a single suspect is compared to the crime scene evidence, ‘the basic question (“What is the probability or chance that a person selected at random from the relevant population would have a DNA profile matching that of the evidentiary sample”), is appropriate because the authorities already have reason to suspect one particular person’s DNA profile will match the evidence sample DNA profile before the two profiles are compared. [¶] But that same question presupposes the probability statistic involves a randomly-selected person. It thus cannot be posed in a “cold hit” case, for in such cases the only reason authorities have come to suspect one particular person is because they already know his DNA profile matches that of the crime scene evidence. In fact, they already compared the DNA profiles of tens of thousands (if not hundreds of thousands), of other persons, in order to find him. [¶] In other words, in a “cold hit” case the suspect is never “randomly” selected from the general population.’ Thus, when a suspect is found by a search of a large DNA database, the chance of a coincidental match is increased because ‘a single genetic profile (from the crime scene evidence) is compared to the very large number of profiles in these databases.’” (Id. at p. 1260.)
The court first determined that use of the product rule to calculate the odds in a cold hit case was not a new scientific technique subject to the Kelly test, and that the product rule reliably shows what it purports to show, namely the rarity of the genetic profile in the population group. (Nelson, supra, 43 Cal.4th at pp. 1259-1260.) The court then addressed the question whether the odds calculated by the product rule were relevant, and thus admissible, in a cold hit case and determined that “although the product rule is not the only available method of statistical analysis in a cold hit case, it is relevant and thus admissible.” (Id. at p. 1260.)
In reaching this conclusion, the court reviewed pertinent authorities, including the 1992 and 1996 NRC reports and U.S. v. Jenkins (D.C. 2005) 887 A.2d 1013, 1019-1020 (Jenkins), and found that four different methods for calculating the significance of a match in a cold hit case have been suggested. The first is the random match probability calculated by use of the product rule. (Nelson, supra, 43 Cal.4th at p. 1261.) The second, which Jenkins suggests is no longer accepted or followed by the relevant scientific community, involves using one set of loci to screen and identify a suspect and then a different set of loci to confirm a match. Statistical analysis using the product rule is performed on the second set of loci, and the loci used in the screening process are ignored in the statistical evaluation. (Nelson, at pp. 1261-1262.) In the third method, which Jenkins termed “the ‘database match probability’ because it gives the probability of a match from a database” (Nelson, at p. 1262), the expected frequency of the profile is calculated by using the product rule and multiplying the result by the number of profiles in the data bank. The result is arguably significant when few loci are tested, but the significance tends to disappear when many loci are tested. (Ibid.) The fourth method, known variously as the Balding-Donnelly approach or the use of a Bayesian formula, focuses on the elimination of other profiles during the search, rather than on the probability of obtaining a match. Under this means of analysis, a match becomes more significant with larger database searches, such that there is a slightly higher probability that the person identified is the source of the DNA than that expressed by random match probability. Accordingly, this method results in evidence slightly more favorable to the prosecution than does use of the product rule. (Id. at p. 1263.)
The Supreme Court acknowledged that the determination whether the product rule generates relevant evidence is more complicated when the defendant has been located through a database search. (Nelson, supra, 43 Cal.4th at p. 1266.) This is because, as explained by the Jenkins court, “in a non-cold-hit case, the number derived from the product rule ‘represents two concepts: (1) the frequency with which a particular DNA profile would be expected to appear in a population of unrelated people, in other words, how rare is this DNA profile (“rarity statistic”), and (2) the probability of finding a match by randomly selecting one profile from a population of unrelated people, the so-called “random match probability.”’ [Citation.]” (Nelson, at p. 1266.) In a cold hit case, by contrast, the number derived from the product rule no longer accurately represents the probability of finding a matching profile by chance; the fact many profiles were searched increases the probability of finding a match. (Ibid.) “‘In other words, the product rule number no longer accurately expresses the rarity of the DNA profile. Random match probability and rarity, while both identical numbers, represent two distinct and separate concepts. Only one of those concepts is affected by a database search: the random match probability.’ [Citation.]” (Ibid.) As a result, the database match probability (the third method of calculation described above) “‘more accurately represents the chance of finding a cold hit match’.… [Citation.]” (Ibid.)
The Nelson court concluded:
“Although the product rule no longer represents the random match probability in a cold hit case, the Jenkins court ultimately agreed with the government’s argument ‘that regardless of the database search, the rarity statistic is still accurately calculated and appropriately considered in assessing the significance of a cold hit.… [W]hile a database search changes the probability of obtaining a match, it does not change how rare the existence of that specific profile is in society as a whole.… This rarity is … both consistent and relevant regardless of the fact that [the defendant’s] identification is the product of a database search.’ [Citation.]
“In a non-cold-hit case, we said that ‘[i]t is relevant for the jury to know that most persons of at least major portions of the general population could not have left the evidence samples.’ [Citation.] We agree with other courts that have considered the question [inter alia, Johnson and Jenkins] that this remains true even when the suspect is first located through a database search. The database match probability ascertains the probability of a match from a given database. ‘But the database is not on trial. Only the defendant is.’ [Citation.] Thus, the question of how probable it is that the defendant, not the database, is the source of the crime scene DNA remains relevant. [Citation.] The rarity statistic addresses this question.” (Nelson, supra, 43 Cal.4th at pp. 1266-1267.)
Appellant points out that the foregoing cases address the relevance and admissibility of evidence, not its sufficiency, and that the fact evidence is admissible does not necessarily make it sufficient to support a verdict. (See Daniels v. Department of Motor Vehicles (1983) 33 Cal.3d 532, 538, fn. 3.) This is true. However, it is also true that the evidence in this case was of a 13-loci DNA profile so astronomically rare that, for all intents and purposes, it established appellant was the source of the sperm fraction found on the vaginal swab taken from K. (Nelson, supra, 43 Cal.4th at p. 1262, fn. 1; Johnson, supra, 139 Cal.App.4th at p. 1146, fn. 10.) This is so even assuming the calculations, or manner in which they were described for or presented to the jury, were somehow inaccurate in terms of precisely what statistic they represented.
Appellant says, however, that because the People failed to present evidence that the perpetrator was a member of one of the racial/ethnic groups for which a statistical analysis was adduced, “the rarity statistics failed to eliminate the possibility that the perpetrator was a member of a racial or ethnic group for which statistics were not provided. Consequently, the DNA match evidence was without probative weight.”
We disagree. In People v. Wilson, supra, 38 Cal.4th 1237, the prosecution presented evidence of the odds of a similar DNA match with respect to the three most common population groups in the United States – Caucasian, African-American, and Hispanic – despite the fact there was no evidence of the race or ethnicity of the perpetrator aside from evidence the defendant was the perpetrator. (Id. at p. 1240.) The California Supreme Court agreed with our Pizarro opinions (People v. Pizarro (1992) 10 Cal.App.4th 57, 93-94; People v. Pizarro, supra, 110 Cal.App.4th at pp. 629-631 & fn. 79) in condemning the presentation of evidence solely of the odds that a person of the defendant’s population group was the donor of the DNA. (People v. Wilson, supra, 38 Cal.4th at p. 1243.) However, the court rejected the notion that, absent independent evidence of the population group to which the perpetrator belonged, any evidence regarding any particular group was irrelevant and, hence, inadmissible. (Id. at pp. 1244-1245.) The court approved the following statement: “‘In order to determine the significance of the match between defendant’s DNA and the crime scene DNA, it is necessary – and relevant – to establish the likelihood that the crime scene DNA came from another person. There is agreement within the scientific community that genetic frequencies differ for different racial or ethnic populations, and that frequency data would be less accurate without such differentiation. By presenting the data for the major racial components of the population, when there is no independent evidence of the perpetrator’s race, the prosecution presents the data necessary for the jury to evaluate the likelihood that the crime scene DNA came from someone other than the defendant.’” (Id. at p. 1247.) The court also agreed that, “‘as the science underlying DNA comparisons continues to improve, the practical significance of the different racial frequencies diminishes.’” (Id. at p. 1248.) The court found that while presenting the jury with only the most conservative frequency, without mention of ethnicity, or presenting the frequency in the general, nonethnic population “may be acceptable choices in an appropriate case, if such evidence exists,” there was “no reason to require one of those alternatives instead of giving the jury a range of possible frequencies.” (Id. at p. 1249.)
The court further rejected the notion that the evidence before it was improperly admitted because frequency ranges were given only for the three most common population groups, rather than all possible groups to which the perpetrator could have belonged. (People v. Wilson, supra, 38 Cal.4th at pp. 1249-1250.) The court stated: “Although giving results for all possible population groups would be permissible, doing so is not required to give relevance to the range of possibilities. Furthermore, it is not clear whether it is realistically feasible to include all population groups.… In this case, [the criminalist] provided information regarding the three most numerous population groups. This made her testimony relevant and admissible.” (Id. at p. 1250.)
Here, the evidence was not only relevant and admissible, it was sufficient to sustain the conviction when considered as a whole. Schell testified to the frequency of the pertinent 13-loci genetic profile in the three major racial/ethnic groups, as well as in the Asian population. He explained when another racial database might be necessary; nothing in the record suggests such a situation might exist here. Schell also explained that there might be a thousand-fold difference between population groups. Given the frequencies obtained here, such a difference is immaterial. Moreover, we do not view Schell’s testimony in this regard as mere speculation or supposition, or as based on improper or insubstantial materials. (See Toscano v. Greene Music (2004) 124 Cal.App.4th 685, 696.) That Schell estimated did not render his testimony improper or mean jurors could not rely on it. The testimony of a single witness, including an expert, is sufficient to constitute substantial evidence (People v. Vega (2005) 130 Cal.App.4th 183, 190), and we conclude Schell’s testimony, coupled with evidence of appellant’s admitted participation in a very similar home invasion-rape some two months later, constituted a sufficient foundation for the jury’s verdicts.
That evidence of the uncharged incident was not sufficient, in and of itself, to establish guilt does not mean it lacked all probative value.
II
INEFFECTIVE ASSISTANCE OF COUNSEL
Appellant next says defense counsel’s performance was constitutionally defective because he (1) failed to object when the DNA expert presented population statistics as evidence of random match probability; (2) failed to request a limiting instruction to prevent the jury from considering the statistics as evidence of random match probability; and (3) failed to object to the prosecutor’s misconduct in focusing on the Asian population statistics as representing the category specifically applicable to appellant and misrepresenting the Asian statistics as the odds of appellant’s guilt.
In her opening argument, the prosecutor told the jury: “What it requires you to do, compare all of the evidence, look at it, look at the evidence. Do you have an abiding conviction that this defendant is guilty as he’s been charged in this case. And I submit to you in considering that, ladies and gentlemen, the DNA is very strong evidence in this case. One in 1.4 quadrillion you heard for the Asian population. That’s the likelihood that some other person on this planet’s sperm matched the sperm that was mixed with [K.’s] epithelial cells in that sample. One in 1.4 quadrillion. That, ladies and gentlemen, is very, very compelling. One in 1.5 quintillion for Hispanics. One in 1.2 quintillion chance that a person in the African American culture would have that same DNA. One in 290 quadrillion for Caucasians that another individual in – on this planet would have that exact DNA.” In her closing argument, she stated: “Is it unfortunate that it took time? Yes. Would it have been better if we had been sitting here a year before or a year before that? Yes. Would it be better if we had been sitting here in 1998? I wish. But the fact of the matter is we’re sitting here now, we’re sitting here now with evidence before you that shows you one in 1.4 quadrillion that that man sitting right there is the man who raped [K.]”
The burden of proving ineffective assistance of counsel is on the defendant. (People v. Pope (1979) 23 Cal.3d 412, 425.) “Establishing a claim of ineffective assistance of counsel requires the defendant to demonstrate (1) counsel’s performance was deficient in that it fell below an objective standard of reasonableness under prevailing professional norms, and (2) counsel’s deficient representation prejudiced the defendant, i.e., there is a ‘reasonable probability’ that, but for counsel’s failings, defendant would have obtained a more favorable result. (Strickland v. Washington (1984) 466 U.S. 668, 687, 694; In re Wilson (1992) 3 Cal.4th 945, 950.) A ‘reasonable probability’ is one that is enough to undermine confidence in the outcome. (Strickland v. Washington, supra, 466 U.S. at p. 694; In re Jones (1996) 13 Cal.4th 552, 561.)” (People v. Dennis (1998) 17 Cal.4th 468, 540-541.)
“If the record contains no explanation for the challenged behavior, an appellate court will reject the claim of ineffective assistance ‘unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation.’ [Citation.]” (People v. Kipp (1998) 18 Cal.4th 349, 367.) In other words, “in assessing a Sixth Amendment attack on trial counsel’s adequacy mounted on direct appeal, competency is presumed unless the record affirmatively excludes a rational basis for the trial attorney’s choice. [Citations.]” (People v. Musselwhite (1998) 17 Cal.4th 1216, 1260, original italics.)
The record on appeal sheds no light on why counsel acted as he did; he was not asked to explain his performance, and we cannot conclude no satisfactory explanation could be provided. (People v. Bell (1989) 49 Cal.3d 502, 546; see People v. Baylor (2002) 97 Cal.App.4th 504, 509-510.) Just because a strategy has little or no hope of succeeding does not mean defense counsel was incompetent for trying it (People v. Scott (1997) 15 Cal.4th 1188, 1215), and here, although not set out in the statement of facts, ante, there were questions concerning the chain of custody of the sexual assault kit – both with respect to the police department and the DOJ laboratories – so that defense counsel’s tactic of challenging the integrity of the DNA evidence, as opposed to the statistics themselves, was not without some basis in the evidence.
In any event, we need not – and do not – decide whether defense counsel erred in any or all of the ways appellant now claims, because appellant has failed to prove prejudice as a demonstrable reality. (People v. McPeters (1992) 2 Cal.4th 1148, 1177, disapproved on other grounds in Verdin v. Superior Court (2008) 43 Cal.4th 1096, 1106-1107; In re Fields (1990) 51 Cal.3d 1063, 1079.) He simply has not shown that the population statistics could not, and, in the face of an objection, would not have been calculated and presented in another manner, or that so presenting them would have made any practical difference. (See Nelson, supra, 43 Cal.4th at p. 1262, fn. 1; Johnson, supra, 139 Cal.App.4th at p. 1155, fn. 19.)
III
INSTRUCTIONAL ERROR
Because of the “one strike” (§ 667.61) allegations, jurors had to determine whether appellant committed the offenses during the commission of a burglary. Pursuant to CALCRIM No. 3180, jurors were told:
“To prove this allegation, the People must prove that, one, the defendant entered a house or room in an inhabited house; two, when the defendant entered the house or room in an inhabited house, he intended to commit theft or rape; and, three, after the defendant entered the house or room in an inhabited house, he committed forcible rape and/or forcible rape in concert before he escaped to a place of temporary safety.
“… The defendant intended to commit theft by larceny if he intended to take property owned by someone else without the owner’s consent, to deprive the owner of it permanently, to move the property even a small distance, and to keep it for any period of time, however brief.” (Italics added.)
Appellant now contends the emphasized portion of the instruction was erroneous because asportation is not an element of burglary, and jurors could have believed that entry with intent to move property and keep it briefly was sufficient for burglary, when in reality the requisite intent was to take property and permanently deprive the owner of it. Respondent says that assuming the instruction was erroneous, it actually aided rather than harmed appellant, since, by using the word “and,” it required jurors to find an intent to commit all the acts listed. We agree, and reject appellant’s assertion it is likely jurors understood the purportedly contradictory requirements (intent to permanently deprive and intent to keep the property for any period of time, however brief) as being stated in the alternative.
“Every person who enters any house [or] room …, with intent to commit grand or petit larceny or any felony is guilty of burglary.” (§ 459.) Asportation is not an element of this offense. (People v. Cooper (1991) 53 Cal.3d 1158, 1169, fn. 13.) Theft by larceny requires the intent to permanently deprive the owner of possession of his or her property. (People v. Avery (2002) 27 Cal.4th 49, 54; see § 484, subd. (a).) Unlike burglary, the completed offense of larceny does require asportation. (People v. Shannon (1998) 66 Cal.App.4th 649, 654.) “Larceny requires the taking of another’s property, with the intent to steal and carry it away. [Citation.] ‘Taking,’ in turn, has two aspects: (1) achieving possession of the property, known as ‘caption,’ and (2) carrying the property away, or ‘asportation.’ [Citations.]” (People v. Gomez (2008) 43 Cal.4th 249, 254-255.) The slightest movement may constitute asportation. (Id. at p. 255.)
We are not convinced the instruction was erroneous. An intent permanently to deprive and an intent to keep for a brief period of time are not necessarily conflicting. Assuming the instruction might be considered ambiguous, we look to whether there is a reasonable likelihood jurors applied it in a way that violated the Constitution, as by not finding to requisite intent. (Estelle v. McGuire (1991) 502 U.S. 62, 72; accord, People v. Clair (1992) 2 Cal.4th 629, 663.) We find no such likelihood. “We credit jurors with intelligence and common sense [citation] and do not assume that these virtues will abandon them when presented with a court’s instructions. [Citations.]” (People v. Coddington (2000) 23 Cal.4th 529, 594, disapproved on other grounds in Verdin v. Superior Court, supra, 43 Cal.4th at p. 1107, fn. 4, overruled on other grounds in Price v. Superior Court (2001) 25 Cal.4th 1046, 1069, fn. 13.) “‘[T]he crucial assumption underlying our constitutional system of trial by jury is that jurors generally understand and faithfully follow instructions.’ [Citation.]” (People v. Delgado (1993) 5 Cal.4th 312, 331.)
For instance, a thief could intend to steal jewelry from within an inhabited house and sell it shortly after to someone who traffics in stolen goods. Under such circumstances, the perpetrator’s intent would be both to permanently deprive the owner of possession of the jewelry and to keep the stolen goods for only a brief period of time.
Appellant’s claim flies in the face of this assumption. Under the plain language of the instruction, use of the conjunctive “and” required jurors to find an intent to commit all of the acts stated in the instruction. (See People v. Lizarraga (1990) 219 Cal.App.3d476, 481 [“or” relieves jury of requirement that both be found].) If anything, this rendered the instruction more favorable to appellant than was warranted and, accordingly, nonprejudicial. (See People v. Lee (1999) 20 Cal.4th 47, 57.) Moreover, the prosecutor’s argument concerning the section 667.61 allegations virtually negated any possibility jurors misunderstood or misapplied the instruction in the way appellant now contends. (See People v. Young (2005) 34 Cal.4th 1149, 1202 [reviewing court considers arguments of counsel in assessing probable impact of instruction on jury].) Under the circumstances, we find no cause for reversal. (See People v. Hagen (1998) 19 Cal.4th 652, 670.)
IV
SENTENCING ERRORS
In imposing sentence, the trial court found that both count 1 and count 2 were offenses listed in section 667.61, and that it had been pleaded and proved to the jury that the offenses were committed under circumstances that brought appellant within the sentencing provisions of that statute. Accordingly, the court sentenced appellant to prison for 25 years to life on each count. It designated count 1 the base term and imposed thereon an additional four-year term for the firearm use enhancement, and it stayed sentence on count 2. It ordered that sentence in the present case run consecutively to that appellant was already serving in his other matter. Appellant now raises several claims of error in connection with the imposition of sentence. All have merit, as respondent either explicitly or implicitly concedes.
First, appellant takes issue with the court’s imposition of a life term on count 2. At the time the offenses were committed, section 667.61, subdivision (g) provided, in pertinent part: “The term specified in subdivision (a) or (b) shall be imposed on the defendant once for any offense or offenses committed against a single victim during a single occasion.… Terms for other offenses committed during a single occasion shall be imposed as authorized under any other law, including Section 667.6, if applicable.”
In People v. Jones (2001) 25 Cal.4th 98 (Jones), the California Supreme Court concluded that, for purposes of section 667.61, former subdivision (g), “sex offenses occurred on a ‘single occasion’ if they were committed in close temporal and spatial proximity.” In so holding, the court rejected the notion that “single occasion,” as used in section 667.61, former subdivision (g), should be interpreted similarly to the phrase “separate occasions,” as used and broadly defined in section 667.6, subdivision (d). (Jones, at pp. 104-107.) Appellant argues, and respondent agrees, that the offenses against K. were committed on a single occasion; hence, only one life sentence could be imposed.
As respondent notes, section 667.61 has since been amended. Subdivision (i) of the statute now provides: “For any offense specified in paragraphs (1) to (7), inclusive, of subdivision (c), the court shall impose a consecutive sentence for each offense that results in a conviction under this section if the crimes involve separate victims or involve the same victim on separate occasions as defined in subdivision (d) of Section 667.6.” Respondent correctly recognizes that this amendment cannot properly be applied to appellant. (See generally People v. Riskin (2006) 143 Cal.App.4th 234, 243-245; People v. Mills (1992) 6 Cal.App.4th 1278, 1282-1286.)
At sentencing, the prosecutor recognized Jones’s holding, but argued that appellant’s situation was different because there were two separate and distinct rapes, one in which appellant was the direct perpetrator, and the other in which appellant aided and abetted a different perpetrator. We assume the court agreed. Insofar as we have been able to discern, the issue of what constitutes a single occasion under section 667.61, former subdivision (g), has not been decided in a case involving more than one perpetrator. However, since, as appellant points out, the trial evidence was unclear whether counts 1 and 2 were based on a single rape or two rapes, and since there will be no net effect on appellant’s aggregate sentence in light of the stayed term on count 2, we accept respondent’s concession of error and leave the issue of section 667.61, former subdivision (g)’s application to multiple perpetrators for another day. It follows that the sentence imposed on count 2 must be vacated, and the term for that offense “imposed as authorized elsewhere in the Penal Code.” (People v. Stewart, supra, 119 Cal.App.4th at p. 175.)
The cases cited by one or both parties – Jones, People v. Fuller (2006) 135 Cal.App.4th 1336, and People v. Stewart (2004) 119 Cal.App.4th 163 – all involve a single perpetrator. The court in People v. McPherson (2001) 86 Cal.App.4th 527, 529-531 held that each act of rape perpetrated against a single victim by a different assailant is a crime committed on a separate occasion, but did so within the context of section 667.6, subdivision (d), not section 667.61, former subdivision (g).
The second claim of error appellant raises concerns the sentencing minute order. Item No. 15 in the minute order of the March 6, 2008, sentencing hearing reflects that sentence on count 2 was to be served consecutively to that imposed on count 1. In its oral pronouncement of judgment, the trial court stayed the term imposed on count 2, pending completion of the sentence imposed on count 1, and said nothing about it being consecutive. The minute order must be corrected to reflect the judgment as orally pronounced. (People v. Mesa (1975) 14 Cal.3d 466, 471; People v. Zackery (2007) 147 Cal.App.4th 380, 386.)
Although we recognize that we are remanding the matter for resentencing on count 2, we will nevertheless order correction of the March 6, 2008, minute order so that it is clear sentence on count 2 was never ordered to run consecutively to that imposed on count 1.
Last, appellant points out that the abstract of judgment fails to reflect that he was sentenced pursuant to section 667.61. The applicable box in item 8 must be checked when the abstract of judgment is prepared following resentencing on count 2.
We note that at the time of appellant’s offenses, subdivision (a) of section 667.61 provided that a defendant in appellant’s circumstances “shall be punished by imprisonment in the state prison for life and shall not be eligible for release on parole for 25 years.…” At the time appellant was sentenced, subdivision (a) of section 667.61 provided for “imprisonment in the state prison for 25 years to life.” The parties point to no practical difference between the two.
DISPOSITION
The sentence imposed on count 2 is vacated, and the matter is remanded to the trial court for resentencing consistent with the views expressed herein. Following resentencing, the trial court is directed to ensure that the box in item 8 of the abstract of judgment is checked to show that appellant was sentenced pursuant to section 667.61 on count 1. The trial court is further directed to cause preparation of an amended minute order for the March 6, 2008, sentencing hearing that deletes, from item No. 15 thereof, the portion that reads “Sentence imposed to be served consecutive to count 1.” In all other respects, the judgment is affirmed.
WE CONCUR: Levy, J. Kane, J.