Opinion
E079209
11-13-2023
THE PEOPLE, Plaintiff and Respondent, v. MIGUEL ALDAMA CUEVAS, Defendant and Appellant.
Steven A. Torres, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Robin Urbanski, and Donald W. Ostertag, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County. No. FSB19002190, Shannon L. Faherty, Judge.
Steven A. Torres, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Robin Urbanski, and Donald W. Ostertag, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
CODRINGTON J.
I.
INTRODUCTION
Defendant and appellant Miguel Aldama Cuevas was sentenced to 250 years in prison after a jury convicted him of 12 offenses arising from his molestation of his girlfriend's two young daughters, Z.D. and A.D., over the course of two years. He argues his convictions must be reversed because the trial court erroneously admitted DNA evidence with an insufficient chain of custody. We disagree and affirm the judgment.
II.
FACTUAL AND PROCEDURAL BACKGROUND
Defendant lived with his girlfriend, S.O., her son, and her daughters, A.D., born in 2008, and Z.D., born in 2010. When Z.D. was between six and eight years old and A.D. was between eight and 10 years old, defendant repeatedly molested them for two years. A.D. estimated the molestation occurred more than 50 times.
Z.D. and A.D. eventually reported the abuse to their sister, B.D., who was about 10 years older than A.D. and had moved out of the home. B.D. immediately took the girls to the police station to report defendant's abuse. Defendant fled to Tijuana, but he was arrested when trying to reenter the country.
While in jail awaiting trial, defendant twice called S.O. and discussed the abuse. When S.O. asked defendant about molesting the girls, defendant said he "fell" to the temptation and blamed his actions on the devil. When S.O. told defendant that her daughter "was a little girl" and asked why he would "[g]ive her oral sex," defendant said "it had just happened," and "I don't' know," "[b]ecause of the devil." Defendant also admitted to molesting A.D. at least "one time" while claiming that he did not "do it" when he was "going to do it." Defendant told S.O. the girls "didn't deserve it," repeatedly apologized for his actions, and asked S.O. to forgive him.
Z.D. and A.D. underwent sexual assault response team (SART) examinations, and DNA collected from their bodies was compared to a reference sample of DNA collected from defendant. DNA collected from A.D.'s thigh included defendant as a possible contributor, but he was not included as a contributor for the DNA collected from Z.D.
Defendant was convicted of two counts of committing a lewd and lascivious act upon a child under 14 years of age (Pen. Code, § 288, subd. (a); counts 1 &6), five counts of engaging in sexual intercourse or sodomy with a child 10 years of age or younger (§ 288.7, subd. (a); counts 2, 3, 7, 8, &9); and five counts of engaging in oral copulation or sexual penetration with a child 10 years of age or younger (§ 288.7, subd. (b); counts 4, 5, 10, 11, &12). The jury also found true under section 667.61 the One Strike allegations attached to counts 1 and 6. The trial court sentenced defendant to an indeterminate term of 250 years to life in prison.
Unless otherwise indicated, all further statutory references are to the Penal Code.
III.
DISCUSSION
Defendant's sole argument on appeal is that the trial court erroneously admitted evidence of DNA samples taken from A.D., Z.D., and himself. But because defendant did not object to the DNA evidence when it was admitted during trial and only raised the issue in his motion for a mistrial after the prosecution had rested, defendant forfeited the argument. Defendant also forfeited the argument as to A.D. and Z.D. because his mistrial motion concerned only his DNA.
Three people testified about the DNA samples: the nurse who performed a SART exam on A.D. and Z.D., the lead detective investigating the case, and a criminalist who performed DNA analysis. The nurse explained that she took DNA swab samples from A.D. and Z.D. when she performed a SART exam on them, and outlined in detail her process for preserving the swabs for the crime lab. Defendant never objected on chain-of-custody grounds during the nurse's testimony. His only objection during the nurse's testimony was on grounds that the prosecutor asked a question that assumed facts not in evidence and called for a legal conclusion.
Nor did defendant object on chain-of-custody grounds to the lead detective's testimony about the DNA swab sample the detective took from him. After the detective testified about taking a DNA swab sample from defendant and placing it in a "sex kit" sent to the crime lab, defendant objected, "[a]ssumes facts not in evidence" (which the trial court overruled). The detective finished his testimony without further objection or cross-examination from defendant.
The criminalist who performed the DNA analysis explained that a "sex kit" is "an envelope that contains all of the swabs or samples collected during the medical exam and is packaged all together into an envelope and submitted to the crime lab." The criminalist then outlined the DNA swabs that were analyzed for both A.D. and Z.D. and explained the findings of the analysis. The criminalist then testified that of eight DNA swabs collected from A.D., only one of them showed defendant as a possible contributor.
The criminalist explained that the swab sample was taken from A.D.'s thigh. No saliva or semen was found on the sample, but "[t]he DNA portion . . . had a mixture of at least two people." The criminalist continued: "I assume given the DNA results that two people were present and one of those people [was A.D.]. Profile possibilities for one contributor was determined. A comparison was made to the parties involved in this case. [Z.D.] was excluded." Defendant objected on lack-of-foundation grounds, but the trial court overruled the objection.
The criminalist then testified that, as for Z.D., none of the seven swabs collected from her showed defendant as a possible contributor. The criminalist finished testifying without defendant objecting on chain-of-custody grounds.
The prosecutor then called S.O. to testify again and asked her to verify the transcript of a recorded jail call between her and defendant. After she did so, the prosecutor played the call for the jury. The prosecutor and S.O. repeated the same process for a second jail call between her and defendant, then she was excused. After defendant cross-examined S.O., the prosecution rested its case.
After a five-minute break, defendant moved for a mistrial. Defendant argued in full: "The first request would be motion for mistrial. In the evidence that I think got in that I objected to was my client's DNA. I had objected to lack of foundation in that I didn't feel that the foundation had been established linking the actual swab or swabs that were taken from my client to that which was tested, by number, by chain, whatever that might be. They testified as to my client's name but there was no chain, none of that. [¶] So I would make a motion for mistrial because I believe that the evidence that came in came in improperly and prejudiced the jury to the point that they can't be impartial. So that would be my motion for a mistrial."
The trial court denied the motion, finding there was "sufficient testimony to establish the chain of evidence from the swabs to the girls to the analysis by [the criminalist]."
Defendant does not argue the trial court improperly denied his motion for mistrial, but he contends the trial court erroneously admitted all of the DNA evidence-from A.D., Z.D., and himself-because several links in the chain of custody were broken. We conclude defendant forfeited the argument by failing to timely object on chain-of-custody grounds during the witnesses' testimony and instead waiting to raise the issue in his mistrial motion.
Our Supreme Court and other Courts of Appeal have held that an appellant forfeits any appellate argument that the trial court erroneously admitted evidence unless the appellant contemporaneously objected to its admission on the specific ground asserted on appeal, even if the appellant raises it later in the trial court. (See e.g., People v. Lucas (1995) 12 Cal.4th 415, 462 [evidentiary argument made for first time in motion for new trial "came too late" and was thus forfeited]; Crouch v. Trinity Christian Center of Santa Ana, Inc. (2019) 39 Cal.App.5th 995, 1019 [same]; Mosesian v. Pennwalt Corp. (1987) 191 Cal.App.3d 851, 865 [same], disapproved on other grounds by People v. Ault (2004) 33 Cal.4th 1250, 1272, fn. 15.) Defendant never objected to the DNA evidence on chain-of-custody grounds until his mistrial motion. As a result, he forfeited the argument that the trial court improperly admitted the DNA evidence-the only argument he asserts on appeal. We therefore affirm the judgment.
IV.
DISPOSITION
The judgment is affirmed.
We concur: RAMIREZ P. J., MENETREZ J.