THE PEOPLE v. HECTOR GUTIERREZ

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Court of Appeal, Second District, California.

THE PEOPLE, Plaintiff and Respondent, v. HECTOR GUTIERREZ, Defendant and Appellant.

B213488

Decided: January 21, 2010

Mark D. Lenenberg, under appointment by the Court of Appeal, for Defendant and Appellant. Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Mary Sanchez and Sonya Roth, Deputy Attorneys General, for Plaintiff and Respondent.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

Defendant Hector Gutierrez appeals from the judgment entered following his conviction by a jury of forcible rape, forcible oral copulation, assault with a deadly weapon, and first degree burglary.  (Pen.Code, §§ 261, subd. (a)(2), 288a, subd. (c)(2), 245, subd. (a)(1), 459.) 1  He was found to have committed the sex offenses while in the course of a residential burglary and with the use of a knife. (§§ 667.61, subds.(a), (d), and (e)(4), 12022.3, subd. (a).)  After denying defendant's motion for new trial, the court sentenced him to the mandatory term of 25 years to life for the rape conviction and a consecutive determinate term of seven years, consisting of three years for the assault with a deadly weapon conviction and four years for the use of the knife.   Sentence on the two remaining counts, forcible oral copulation and first degree burglary, was stayed pursuant to section 654.

Defendant contends:  (1) the prosecution was allowed to introduce evidence without establishing the chain of custody;  (2) evidence was admitted in violation of his Sixth Amendment right to confrontation;  (3) his motion to suppress the use of his DNA samples should have been granted;  (4) the court erroneously excluded his expert's testimony;  (5) the court committed prejudicial misconduct;  and (6) his convictions for assault with a deadly weapon and first degree burglary must be reversed because prosecution was barred by the statute of limitations.   We agree with the last contention and reverse defendant's assault with a deadly weapon and first degree burglary convictions.   In all other respects, we affirm the judgment.

STATEMENT OF FACTS

On March 24, 2000, Leticia S. shared a home in the City of Whittier with her husband and three children.   Her husband generally left for work about 5:30 a.m. In the early morning hours, Leticia was asleep in the bedroom with the children.   She awoke when she heard the bedroom door close and opened her eyes.   At first, she thought her husband had entered the room, but when she looked up she saw another man.   She stood and the man pushed her back onto the bed.

The intruder produced a knife and began to move it side-to-side across Leticia's daughter's neck.   Leticia told the man she would do whatever he wanted.   She and the man ended up on the floor, where he touched her bare breast with his hands and mouth.   He then removed Leticia's panties and made her kneel in front of a nearby chair.   The man got behind Leticia and fondled her breasts.   Her one-year-old son began to cry and Leticia was allowed to give him a bottle.   After she tended to her son, Leticia told the man to leave the bedroom.

The man took Leticia into the living room.   He grabbed her by the hair, made her kneel in front of him, and forced her to place his penis in her mouth.   The man pushed Leticia on the floor.   As she lay on her back, he put his penis into her vagina.   After the man ejaculated, he got off Leticia, signaled to her not to move, and left.

Leticia went into the bedroom, woke her nine-year-old son, and told him to go to a neighbor's house to call the police.   Eventually, Sheriff's deputies arrived.   After she told the responding deputies what had occurred, one of them took the underwear she had been wearing prior to the attack.   Attached to the inside of the underwear was a sanitary napkin.   At trial, Leticia could not recall whether she put her underwear on after the attack.

Deputy Mark Lovitch, one of the responding deputies, took Leticia to the hospital.   Once there, he filled out the necessary paperwork for Leticia to be examined by a nurse.   While the nurse performed the exam, he waited, as is his usual practice.   During the exam, Leticia told the nurse about the incident.   The nurse examined Leticia's genital area and took swabs from her mouth and vagina.   After the nurse completed the examination, she gave Deputy Lovitch a rape kit, which included the swabs she took and a pair of underwear.   The deputy signed for the items and booked them into evidence at the Norwalk Sheriff's Station, where they received a lab receipt number.

When Leticia returned home, she noticed that the screen to the kitchen window had been removed and muddy footprints were on the kitchen floor.   The room had not been in that condition the night before.

In November 2002, Sean Yoshii, supervising criminalist at the Sheriff's crime lab, took samples from the rape kit Deputy Lovitch received from the hospital.   He made cuttings from the external genital slide, vaginal swab, and a sanitary napkin that was inside a pair of underwear.   The samples from the external genital slide and the sanitary napkin tested positive for the presence of semen.   A dried secretion sample taken from Leticia's left breast tested positive for the presence of amylase, a chemical that is found in high concentrations in saliva.   These samples were placed into an evidence envelope and sealed.

On November 6, 2006, Detective Jaime received notice that defendant was a potential suspect based on a cold hit from a DNA database.   On November 15, Detective Jaime showed Leticia a series of photographs and asked her to circle the one that depicted the man who raped her.   Leticia circled two pictures, believing that one of the two was a photo of her attacker.2

Leticia told Detective Jaime that she believed she had seen the rapist a week before the incident.   Someone knocked on the door to her home and her nephew opened it.   She saw a man standing inside the home and looking around as if he was trying to see the interior.   He had a tattoo on his neck, as did defendant.   She thought that man might have been the individual who raped her.

At trial, Leticia was unable to identify defendant as her attacker.

Doctor Paul Colman, a senior criminalist in the Sheriff's crime lab, prepared two genetic profiles, one from the oral swab taken in 2007 from defendant and the other from a swab taken in 2000 from Leticia.3  He compared his results with profiles prepared by William Haynes, a former criminalist in the lab, from the positive semen and amylase samples produced by Sean Yoshii.   From the sample of the external genital swab and the sanitary napkin, Haynes extracted the male fraction (sperm cells) and epithelial fraction (non-sperm).   He also typed the sample taken from the left breast.

With respect to the work performed by Haynes, Colman examined the file.   It included Haynes's bench notes that were contemporaneously prepared as he performed his task.   The file also contained the peer review of Haynes's work, which consisted of a second chemist's determination that the test results were correct and Haynes's conclusions were supported by the test results, and Haynes's final report.   After reviewing Haynes's test data and report, Colman did not find any problems with his work on the case.

Colman determined that defendant's DNA profile matched:  (1) the male fraction taken from the sanitary napkin;  (2) the epithelial fraction taken from the sanitary napkin;  and (3) the external genital male fraction extracted from Leticia's external vaginal sample.   Defendant was also a major donor of the DNA material extracted from the sample taken from Leticia's breast.   With respect to the male fraction obtained from the sanitary napkin, Colman stated the possibility of a random person in the population matching the DNA profile was as follows:  (1) in the Caucasian population the profile would occur with a frequency of one in 4.1 billion;  (2) in the African-American population one in 60.1 quadrillion;  and (3) in the Hispanic population one in 7.2 quadrillion.   Using a database of approximately 605,000 people, Colman calculated the probability of finding a match with defendant's profile is one in 6.7 billion Caucasians, one in 99 billion African-Americans, and one in 11.9 billion Hispanics.

Doctor Astrid Heger is the director of the Violence Intervention Program at LACUSC hospital where Leticia was examined.   The nurses who perform the examinations work under her direction.   When a sexual assault victim is brought to the hospital, state law mandates that a form documenting the victim's history, medical examination, and any forensic material taken be prepared.   The form is signed by the police officer who takes the evidence to the crime lab.   The form is usually prepared at the end of the examination.

Heger examined the form that was prepared by Gina McConnell, the nurse who examined Leticia.   The nurse prepared the form in conformity with the hospital's protocol and requirements.   The form included a page at the end where McConnell wrote her name and described the evidence taken during the examination, Deputy Lovitch signed as the officer who received the evidence, and McConnell signed as the examining nurse.   McConnell worked for Heger performing sexual assault examinations for 12 years before leaving in 2003.   Relying on the form McConnell filled out on March 24, 2000, Doctor Heger stated that the nurse collected vaginal swabs, external vaginal combings, and one pair of underwear.   McConnell also documented Leticia's injuries and her history of the incident.

DISCUSSION

I. Chain of Custody

Defendant contends the trial court erred by allowing the admission of the evidence recovered from Leticia, in particular the vaginal swabs and underwear, because the prosecution failed to establish the chain of custody for those items.   He asserts the prosecution was required to call Gina McConnell, the nurse who collected the evidence from the victim, and William Haynes, the chemist who developed the DNA profile from material taken from that evidence, and points out that neither testified.   The Attorney General argues defendant forfeited the contention by failing to object to the admission of the evidence on this specific ground.   Defendant disagrees, arguing that an objection is sufficient if it fairly apprises the trial court of the issue to be resolved, and suggesting “[c]learly, defense counsel objected to admission based on an inadequate chain of custody and the trial judge understood the basis of the objection.”   We agree with the Attorney General.

In referring to the proposed testimony of Doctor Heger, defense counsel complained that the doctor knew nothing about what happened during Leticia's examination because she was not present.   Counsel argued, “She's going to look at the [Sexual Assault Response Team] report and say this is what happened and this is what it means, which basically denies my client, Mr. Gutierrez, his right to confront and cross-examine the witness, because she's little more than a reader, and violates his rights under Crawford 4 [of] his state and federal constitutional right to confront and cross-examine, and his due process rights.”   Counsel went on to say that “it's the same with Dr. Colman.”   She asserted that allowing Doctor Colman to read Haynes's notes and describe what he did in performing his analysis would be “violative of Crawford and my client's 6th Amendment state and federal constitutional rights to confront and cross-examine the witness.”

The only mention of the concept of chain of custody came from the trial judge.

After counsel concluded her argument that defendant's right to confrontation was in danger of being violated, the court asked the identity of the custodian of records for the hospital and whether the hospital had a protocol for collecting samples from an alleged victim.

Counsel tried to redirect the court to her Crawford argument, and the following colloquy took place.

“[Counsel]:  But it's also the exam itself as well.

“The Court:  I understand that, but I'm more concerned about the sample.

“[Counsel]:  Well, chain of custody.

“The Court:  I'm interested in both.

“[Counsel]:  I understand.”

What is clear from the exchange is that the trial court did not interpret defense counsel's objection to include an issue with the chain of custody.   Indeed, if counsel had intended to object on that specific ground, she had the opportunity to advise the court that she also was “interested in both” the hearsay objection and the integrity of the samples.   She did not.

As our Supreme Court has explained:  “ ‘A verdict or finding shall not be set aside, nor shall the judgment or decision based thereon be reversed, by reason of the erroneous admission of evidence unless:  [¶] (a) There appears of record an objection to or a motion to exclude or to strike the evidence that was timely made and so stated as to make clear the specific ground of the objection or motion ․’  (Evid.Code, § 353, italics added.)   In accordance with this statute, we have consistently held that the ‘defendant's failure to make a timely and specific objection’ on the ground asserted on appeal makes that ground not cognizable.  [Citations.]”  (People v. Seijas (2005) 36 Cal.4th 291, 302.)   We conclude defendant forfeited his claim with respect to the chain of custody.

In any event, his contention is unavailing.   The prosecution had the burden of satisfying the trial court that the evidence tested by the criminalist was that originally received from the victim.  (See People v. Catlin (2001) 26 Cal.4th 81, 134.)   The Attorney General argues that any alleged gaps in the chain of custody were filled by the testimony of Doctor Heger and Doctor Colman.   Defendant does not dispute this conclusion.   Thus, the issue is, did the admission of their testimony violate defendant's Sixth Amendment right to confrontation?   As we discuss in the next section, the answer is no.

II.  The Admission of Evidence With Respect to the Collection and Testing of Evidence Did Not Violate Defendant's Right to Confrontation

Defendant contends the court erred by allowing two witnesses to testify to acts performed by two individuals who were unavailable at trial.   Doctor Heger relied on Nurse McConnell's report of her examination of the victim and Doctor Colman informed the jury that the DNA profile he had created from samples collected from defendant and the victim matched the profile compiled from certain evidence by William Haynes.   Defendant argues the inability to cross-examine the absent nurse and chemist violated his right to confrontation.

Relying on People v. Geier (2007) 41 Cal.4th 555 (Geier ), the Attorney General argues Doctor Heger's and Doctor Colman's testimony, which was based on contemporaneous reports prepared by the unavailable nurse and chemist, respectively, was properly admitted.   We agree.

In Crawford v. Washington, supra, 541 U.S. 36, 59 (Crawford ), the United States Supreme Court held that the introduction of statements deemed “testimonial” against a criminal defendant violated the Sixth Amendment right to confrontation unless the witness was unavailable at trial and the defendant had a prior opportunity to cross-examine that witness.   The question here is whether the reports prepared by McConnell and Haynes are testimonial within the meaning of Crawford.

In Geier, our Supreme Court held that a chemist's observations during the performance of DNA testing “constitute a contemporaneous recordation of observable events rather than the documentation of past events.   That is, she recorded her observations regarding the receipt of the DNA samples, her preparation of the samples for analysis, and the results of that analysis as she was actually performing those tasks.”  (Geier, supra, 41 Cal.4th at pp. 605-606.)   In doing so, the chemist's notes were meant to ensure accurate analysis, not to provide evidence against the defendant.  “In simply following Cellmark's protocol of noting carefully each step of the DNA analysis, recording what she did with each sample received, [the chemist] did not ‘bear witness' against [the] defendant.  [Citation.]  Records of laboratory protocols followed and the resulting raw data are not accusatory.”  (Id. at p. 607.)   As a result, the court concluded that the chemist's report outlining her findings was not testimonial within the meaning of Crawford.  (Ibid.) Thus, the director of the laboratory for whom the chemist worked properly relied on the chemist's report in forming her own opinion regarding a DNA match.  (Id. at p. 608, fn. 13.)

William Haynes's report was identical in all relevant respects to the chemist's in Geier.   Doctor Colman testified that he reviewed Haynes's bench notes, which were taken contemporaneously while he performed his task.   As in Geier, Haynes's notes were prepared to ensure accurate analysis.   Doctor Colman relied on Haynes's report, which was subject to peer review by a second chemist, to conclude that Haynes properly performed the function of extracting the genetic material from the evidence and preparing a DNA profile.   Doctor Colman performed the analysis and concluded defendant's DNA profile matched that compiled from the evidence, and he was subject to cross-examination.   As in Geier, the trial court properly allowed Doctor Colman to rely on the DNA profile Haynes created to form his opinion regarding the DNA match.

We also conclude the court did not err by allowing Doctor Heger's testimony.   Relying on a report prepared, at the latest, after the victim was examined, Doctor Heger stated Nurse McConnell collected swabs from the victim's vagina and breast and a pair of underwear.   As in Geier, McConnell's report was a “contemporaneous recordation of observable events,” as opposed to “documentation of past events,” and was not testimonial within the meaning of Crawford (Geier, supra, 41 Cal.4th at p. 605), and Doctor Heger opined that McConnell followed hospital protocol when she completed the examination report.

Citing the recent United States Supreme Court opinion in Melendez-Diaz v. Massachusetts (2009) 557 U.S. _ [129 S.Ct. 2527] (Melendez-Diaz ), defendant contends Melendez-Diaz has overruled Geier.   In a five-to-four decision, the Melendez-Diaz court held that “certificates of analysis” sworn to by laboratory analysts before a notary public showing that certain evidence was cocaine were testimonial within the meaning of Crawford.  (Melendez-Diaz, supra, 557 U.S. _ [129 S.Ct. at pp. 2532-2533].)   Justice Thomas, in providing the fifth vote, “join[ed] the Court's opinion in this case because the documents at issue in this case ‘are quite plainly affidavits,’ [citation].   As such, they ‘fall within the core class of testimonial statements' governed by the Confrontation Clause.  [Citation.]”  (Melendez-Diaz, supra, 557 U.S. at p. _ [129 S.Ct. at p. 2543] [Thomas, J., conc.].)

Defendant argues “that for Confrontation Clause purposes, admission of a certified affidavit of a nontestifying analyst and admission of the testimony of an otherwise qualified expert reading the certified or uncertified report of that same nontestifying analyst is a distinction without a difference.”

As we observed in People v. Vargas (2009) 178 Cal.App.4th 647, “because of the limited nature of Justice Thomas's concurrence, the precedential value of the majority's analysis on this point is unclear as applied to a laboratory analyst's report or a similar forensic report, rather than to, in Justice Thomas's words, ‘ “formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions.”  [Citations.]’ ”  (Id. at p. 659, quoting Melendez-Diaz, supra, 557 U.S. at p. _ [129 S.Ct. at p. 2543] [Thomas J., concurring].)

We question whether Justice Thomas would consider either McConnell's or Haynes's reports to be testimonial.   In Davis v. Washington and a companion case, Hammon v. Indiana (2006) 547 U.S. 813, the Supreme Court examined whether a 911 call (Davis ) or a written statement provided by a victim (Hammon ) were testimonial within the meaning of Crawford.   Justice Thomas explained his understanding of the parameters of testimonial statements.  “Admittedly, we did not set forth a detailed framework for addressing whether a statement is ‘testimonial’ and thus subject to the Confrontation Clause.   But the plain terms of the ‘testimony’ definition we endorsed necessarily require some degree of solemnity before a statement can be deemed ‘testimonial.’  [¶] This requirement of solemnity supports my view that the statements regulated by the Confrontation Clause must include ‘extrajudicial statements ․ contained in formalized testimonial materials, such as affidavits, depositions, prior testimony or confessions.’  White [v. Illinois (1992) 502 U.S. 346,] at 365, 112 S.Ct. 736, 116 L.Ed.2d 848 (

Unlike the affidavits in Melendez-Diaz, the reports in our case were not formalized materials.   Significantly, neither report purported to give a post-event description of an act like that provided by the witness in Hammon, evidence that Justice Thomas did not believe was testimonial.   There, the witness gave a written description of a domestic violence incident to police who responded to her home.   Thus, there is grave doubt whether the Melendez-Diaz rationale would be extended by a majority of the court to apply to reports relied upon by expert witnesses who are subject to cross-examination.

It is well established in our state that expert testimony may “be premised on material that is not admitted into evidence so long as it is material of a type that is reasonably relied upon by experts in the particular field in forming their opinions.”  (People v. Gardeley (1996) 14 Cal.4th 605, 618.)   Defendant does not claim that the material at issue is not of a type reasonably relied upon by experts in the field.   The plurality opinion in Melendez-Diaz expressed the view that “[t]his case involves little more than the application of our holding in Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177.   The Sixth Amendment does not permit the prosecution to prove its case via ex parte out-of-court affidavits, and the admission of such evidence against Melendez-Diaz was error.”  (Melendez-Diaz, supra, 557 U.S. at p. _ [129 S.Ct. at p. 2542].)   We do not interpret this language as referring to material upon which an expert may rely.   Instead, it applies to the evidence, such as the expert's opinion, that provides the basis for the conviction.

Thus, we reject defendant's complaint with respect to the use of McConnell's and Haynes's reports by Doctors Heger and Colman.5

III. The Court Properly Denied Defendant's Suppression Motion

Prior to trial, defendant filed a written motion to suppress the collection of his DNA. The parties originally briefed the issue under the assumption that the DNA sample at issue was collected in September 2004.   A review of the record establishes the parties' assumption was incorrect.

On September 22, 2008, during the initial hearing on defendant's motion, the prosecutor and the deputy public defender proceeded as if defendant's DNA was collected as a result of his arrest for a sex offense in September 2004.   It is clear, however, the attorneys were not certain of their facts.   When asked by the trial court whether the DNA sample was taken while defendant was in custody for that arrest, the deputy public defender replied, “That is my understanding.   That's my best assessment, yes, sir.”   When asked for her input, the prosecutor said, “That is the piece of information, Your Honor, that I was waiting to get confirmation of.”   The trial court denied the motion without prejudice.

On November 12, 2008, the attorneys returned to court and the suppression motion was reopened.   The prosecutor informed the court that defendant's DNA was taken on “January 19th, 2006, [and] was taken pursuant to a non-qualifying crime which was for a conviction for Health and Safety Code Section 11359.”   She went on to explain that while defendant was in custody in San Bernardino, his DNA was taken pursuant to a memo from a Sheriff's captain that instructed personnel to collect swabs from any inmate who had been convicted of a felony.   The deputy public defender did not object to the court considering this new information and proceeded to argue defendant's DNA was still illegally obtained because his felony conviction predated the November 3, 2004 effective date of the amendment to section 296, subdivision (a)(1).   That section, which provides the basis for the collection of defendant's DNA, was amended to allow the collection of DNA from a person who had been convicted of any felony.   Prior to the amendment, section 296, subdivision (a)(1) authorized DNA to be collected from individuals who had been convicted of enumerated crimes, which did not include the crime for which defendant was convicted.   The court denied defendant's motion.

After determining that the parties did not address the legality of a sample collected in January 2006, we sent a letter pursuant to Government Code section 68081 to give them an opportunity to brief the issue.

In his letter brief, defendant repeats the argument of his trial counsel and asserts the November 2004 amendment to section 296, subdivision (a)(1) does not apply retroactively.   Thus, his drug conviction which predated the effective date of the amendment could not be used to justify collection of his DNA pursuant to that subdivision.   We disagree.

Section 296, subdivision (a)(1) defines the class of people who shall provide DNA samples and prints and it includes “[a]ny person, including any juvenile, who is convicted of or pleads guilty or no contest to any felony offense․”  There is no dispute that when defendant's DNA was taken in January 2006 he had suffered a 2003 felony conviction for possessing marijuana for sale.   By the plain language of the statute, he was a person who was required to provide DNA samples and prints.   As such, defendant's DNA was collected legally and his suppression motion was appropriately denied.

IV. The Trial Court Properly Excluded the Testimony of the Defense Expert

Defendant contends the trial court erred when it excluded the testimony of his expert.   We review the ruling for abuse of discretion.   Under this standard, “a trial court's ruling will not be disturbed, and reversal of the judgment is not required, unless the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice.”  (People v. Guerra (2006) 37 Cal.4th 1067, 1113.)

At trial, defendant informed the court that he wished to present the testimony of Doctor Laurence Mueller regarding an Arizona study that examined the frequency of paired matches in a DNA database.   After the prosecutor objected, the court conducted an evidentiary hearing.

Doctor Mueller testified that Kathryn Troyer utilized the Arizona offender database, which included 65,000 genetic profiles that were DNA typed across 13 loci, and conducted a numerical experiment.   She compared the profile of each person with every other person in the data base and kept track of how often the profiles of two individuals matched.   She found 122 pairs matched at nine out of the 13 loci, 20 pairs matched at 10 loci, and one pair each matched at 11 and 12 loci.   According to Doctor Mueller, the significance of this evidence was that it gave people “a common sense idea to what ․ numbers like one in billions or trillions mean.”   The studies showed for the first time “that events that have a reported rarity that goes one and beyond the world population may nevertheless happen, and they do happen, and therefore one has to rein in perhaps some ideas about what these numbers mean in light of these kinds of observations.”

Doctor Colman informed the court that the 65,000 profiles included over 2.1 billion pair combinations.   Because Ms. Troyer's study concluded there were no pair matches over 13 loci, if one of the profiles had been compared with the others in the database, all would have been excluded as a potential donor of that profile.

The court found Doctor Mueller's testimony regarding the study was not relevant and excluded it pursuant to Evidence Code section 352.   It reasoned that because defendant's DNA profile matched the genetic material left on the evidence across 13 loci, paired matches across fewer than that number had “no bearing on the random probability testing [conducted by Doctor Colman].”

Defendant takes issue with this ruling, arguing “the Arizona study was not required to focus on the method of calculating probability or a specified number of loci.   What it and Dr. Mueller's testimony did was explain to the jury that no matter the manner of calculation or the probability of a match, matches do occur and are likely to occur in a database.”   We are not persuaded.

First, we have two different calculations to compare.   Defendant's expert, Doctor Mueller, would have informed the jury that profile matches across fewer than 13 loci occur within a given database.   Doctor Colman told the jury that a specific genetic profile (defendant's) matched the profile left on the evidence collected from the victim and calculated the odds of that occurring with the DNA profile of another person in a particular population.   To make that determination, the samples had to match across 13 loci.   Defendant's expert did not explain the relationship, if any, between the two calculations.   Second, and more significantly, it is undisputed that the study Doctor Mueller relied upon showed there were no matches within the database across 13 loci.   Doctor Colman testified he was able to state defendant was the donor of the material left on the evidence because the two profiles matched across all 13 loci.   As he said at the evidentiary hearing, if a person's DNA profile was compared with a sample profile, a match over fewer than 13 loci excluded that person as the donor of the sample.   Put simply, profile matches over fewer than 13 loci have no bearing on a match across all 13.   The court did not abuse its discretion by excluding the testimony of defendant's expert.

V. The Trial Court Did Not Commit Misconduct

During cross-examination, the victim became upset and the court took a recess to allow her to regain her composure.   Defense counsel asked the trial court to admonish the jury to disregard the victim's emotional response.   The court agreed and when proceedings were resumed, he instructed the jury as follows:

“[Y]ou cannot consider - as you know - passion, sympathy, bias, prejudice.   You cannot be sympathetic to the victim of this alleged crime.

“Nobody is disputing that Leticia S. was not raped or submitted to oral copulation.   It's whether or not the accused in this case, Mr. [Gutierrez], committed the crime.   That's what this case is about.

“And you cannot be sympathetic towards the victim and jump to a conclusion that Mr. [Gutierrez] is guilty of the crime.   You cannot do that.   Everybody sees that distinction?   If not, I'll explain it again.   Anybody need another explanation?

“Okay. Thank you.”

Defendant asserts the trial court committed misconduct, depriving him of due process and a fair trial.   He claims “the trial judge went too far, suggesting his partisanship in front of the jury by telling the jury that there was no question before them that the two sex crimes alleged had been committedDP1 ⌑Initially, the Attorney General notes that defendant did not object after the court gave its admonition and has forfeited the claim on appeal.   We agree.   “As a general rule, judicial misconduct claims are not preserved for appellate review if no objections were made on those grounds at trial.  [Citations.]  However, a defendant's failure to object does not preclude review ‘when an objection and an admonition could not cure the prejudice caused by’ such misconduct, or when objecting would be futile.  [Citations.]”  (People v. Sturm (2006) 37 Cal.4th 1218, 1237.)   We have little doubt that had defendant lodged a timely objection, the court could have easily cured any possible prejudice by explaining that it did not mean to suggest that the jury should simply accept the victim's word that she was sexually assaulted.   As such, the contention is forfeited.

In any event, defendant's complaint is without merit.   He asserts the trial judge told the jury that “the sex crimes alleged actually occurred.   In effect, he directed guilty verdicts if the jury found that appellant was the perpetrator.”   Although it stated the point perhaps inartfully, the court informed the jury that the true dispute in the trial was whether defendant was the individual responsible for assaulting the victim.   And so it was.   Not once in argument did defense counsel suggest that Leticia was not assaulted in the manner in which she testified.   All of counsel's comments were directed to the fact that the victim could not identify her attacker and the claim that the DNA results were not as conclusive as they appeared.   The trial court did not vouch for the victim's credibility.   Nor did it direct the jury to find defendant guilty of any crime.   More accurately, defense counsel conceded that the issue in the trial was identity, not whether the crimes were committed.

VI. Defendant's Assault With a Deadly Weapon and First Degree Burglary Convictions Must Be Reversed

Defendant contends his convictions for assault with a deadly weapon and first degree burglary must be reversed because prosecution for those crimes is barred by the statute of limitations, and the Attorney General concedes the point.   We accept the Attorney General's concession.

As each offense carries a maximum sentence in the state prison for a period of less than eight years (assault with a deadly weapon is four years [§ 245, subd. (a)(1) ] and first degree burglary is six years [§ 461] ), the prosecution had to be commenced within three years of the commission of the offenses. (§§ 801, 805.)   The crimes occurred on March 24, 2000.   As the parties correctly point out, the issuance of the bench warrant for defendant's arrest commenced the prosecution in this case (§ 804, subd. (d)), and the warrant was not issued any earlier than the date of the cold hit that pointed to defendant as the perpetrator, which was November 6, 2006.

Although defendant failed to raise the claim in the trial court, where, as here, the “charging document indicates on its face that the action is time-barred, a person convicted of a charged offense may raise the statute of limitations at any time.”  (People v. Williams (1999) 21 Cal.4th 335, 341.)

Defendant's assault with a deadly weapon and first degree burglary convictions must be reversed.

DISPOSITION

Defendant's assault with a deadly weapon conviction (count three) and first degree burglary conviction (count four) are reversed.   Accordingly, the three-year sentence he received for the assault conviction must be stricken.   In all other respects, the judgment is affirmed.   The clerk of the superior court is directed to prepare an amended abstract of judgment and to forward a copy to the Department of Corrections and Rehabilitation.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

We concur:

FOOTNOTES

FN1. All further undesignated statutory references are to the Penal Code..  FN1. All further undesignated statutory references are to the Penal Code.

FN2. We do not know whether defendant's photograph was among the two the victim selected..  FN2. We do not know whether defendant's photograph was among the two the victim selected.

FN3. Detective Jaime took defendant's DNA sample in 2007 and personally delivered it to Doctor Colman.   She also took Leticia's DNA sample and booked it into evidence..  FN3. Detective Jaime took defendant's DNA sample in 2007 and personally delivered it to Doctor Colman.   She also took Leticia's DNA sample and booked it into evidence.

FN4. Crawford v. Washington (2004) 541 U.S. 36..  FN4. Crawford v. Washington (2004) 541 U.S. 36.

FN5. We note the issue regarding the effect of Melendez-Diaz is currently before the Supreme Court in four cases:  People v. Gutierrez (review granted Dec. 2, 2009, S176620);  People v. Rutterschmidt (review granted Dec. 2, 2009, S176213);  People v. Dungo (review granted Dec. 2, 2009, S176886);  and People v. Lopez (review granted Dec. 2, 2009, S177046)..  FN5. We note the issue regarding the effect of Melendez-Diaz is currently before the Supreme Court in four cases:  People v. Gutierrez (review granted Dec. 2, 2009, S176620);  People v. Rutterschmidt (review granted Dec. 2, 2009, S176213);  People v. Dungo (review granted Dec. 2, 2009, S176886);  and People v. Lopez (review granted Dec. 2, 2009, S177046).

EPSTEIN, P.J. MANELLA, J.