THE PEOPLE v. GUILLERMO RAYMOND MERCADO (2010)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

Guillermo Raymond Mercado appeals the judgment entered following his conviction by jury of forcible rape.  (Pen.Code, § 261, subd. (a)(2).) ¹  The jury found Mercado kidnapped the victim and thereby substantially increased the risk of harm to the victim over and above that inherent in the offense within the meaning of the One Strike Law. (§ 667.61, subds.(a) and (d).)  The jury further found the victim was under the age of 18 years at the time the offense was committed and the prosecution was commenced before the victim's 28th birthday. (§ 801.1, subd. (a).)  The trial court found Mercado had four prior prison terms within the meaning of section 667.5 and sentenced him to a term of 29 years to life in state prison.

Mercado contends his conviction must be reversed based on Melendez-Diaz v. Massachusetts (2009) --- U.S. ----, [129 S.Ct. 2527;  174 L.Ed.2d 314] (Melendez-Diaz ).   He also contends the trial court committed instructional error.   We reject these contentions and affirm the judgment.

FACTS AND PROCEDURAL BACKGROUND

1.  Jennifer D.'s trial testimony.

Jennifer D. testified that on April 9, 2000, she was 16 years of age.   She snuck out of her home early that morning to visit her boyfriend.   At approximately 5:00 a.m., after waiting for the bus at Sherman Way and Van Nuys Boulevard for some time, she decided to walk home.   Several people stopped and offered her a ride but she refused them.   Eventually, Mercado stopped and asked for directions.   Jennifer D. told Mercado she did not know the street Mercado was looking for and he drove away.   However he stopped, backed up and offered her a ride.   Jennifer D. thought Mercado seemed friendly and accepted his offer.

Jennifer D. told Mercado where she lived and to go straight on Van Nuys Boulevard but he made a left on Roscoe Boulevard.   When Jennifer D. asked why he was turning, Mercado said his tags were expired and he wanted to take the freeway to avoid patrol cars.   Jennifer D. thought this explanation strange but believed him.   Mercado said his name was “Ray” but then corrected himself and said “Rene.” On Roscoe Boulevard, Mercado stopped for gas and Jennifer D. went to the restroom.   When she returned, she noticed his tags were not expired.   Jennifer D. was confused, thought she was mistaken about the tags and returned to the car.

Mercado drove north on the 405 freeway and engaged Jennifer D. in conversation.   Jennifer D. told Mercado to get off at Devonshire Boulevard but he passed the exit and said he would get off at the next exit.   They continued on the 405 then the 118 and the 210 freeways.   They passed numerous exits Mercado could have used before he exited at Osborne Street.   Mercado began circling residential areas and said he knew where he was going.   Jennifer D. became “really nervous.”   She was shaking and “wanted to get out of the car.”   Jennifer D. said, “You know, just let me off.   I will find my way home.”   Mercado continued driving into a mountainous area.   Jennifer D. asked, “Where are you going?   Would you please turn around.”   Mercado said he was going to find a place to turn around but he continued driving on a dark and winding street with no other cars.   Eventually Mercado pulled over, said the car had overheated and suggested they wait a few minutes.

Jennifer D. said she would walk and reached for the door handle but Mercado grabbed her wrist and said, “You are not going anywhere.”   Mercado then told Jennifer D. to remove her clothes and get into the backseat.   Mercado threatened to kill her if she did not do as he said.   After Jennifer D. complied, Mercado removed his clothes, got into the back seat and asked her to help put his penis into her vagina.   Jennifer D. backed away but Mercado threatened to kill her so she cooperated.   Mercado ejaculated on Jennifer D.'s stomach then returned to the driver's seat.   Jennifer D. remained in the backseat as Mercado drove from the scene.

After driving for a while, Mercado pulled to the side of the road and ordered Jennifer D. into the front seat and told her put her clothes on.   Mercado walked to the passenger side of the car, sat on Jennifer D.'s lap and said, “I am sorry I have to do this to you․”  Mercado twisted Jennifer D.'s neck with both hands in a quick motion.   Jennifer D. momentarily lost consciousness and saw flashing lights.   Mercado pulled Jennifer D. from the car and threw her over the side of a hill.   Mercado walked to where Jennifer D. stopped on the hill and pushed or kicked her further down.   Jennifer D. rolled over rocks and bushes.   When she stopped, she did not move hoping Mercado would think she was dead.   After Jennifer D. heard Mercado drive away, she climbed to the top of the hill and began walking down the mountain along the side of the road.   Eventually, a driver stopped and drove her to a mini-mart where two police officers met her.   She was later taken to a hospital where a nurse gathered samples from her stomach and genital areas.

Jennifer D. identified Mercado in court based on his features and the tattoos of a teardrop under his right eye and a phrase on his neck.   Jennifer D. described these tattoos to the police in 2000 and told the officers what the phrase on Mercado's neck said.   In 2007, Jennifer D. was shown a photographic lineup of six individuals.   She eliminated three of the individuals depicted.   Mercado was not one of the individuals she eliminated.   Based on seeing Mercado in court, Jennifer D. testified she is 100 percent certain of her identification.

2. Other prosecution witnesses.

Cari Caruso, a board-certified sexual assault nurse, examined Jennifer D. on the morning of April 9, 2000.   Caruso collected specimens from Jennifer D.'s genital, stomach and right breast areas.

On May 24, 2007, Los Angeles County Sheriff's Detective Ronald Anderson obtained a search warrant permitting seizure of saliva samples from Mercado for DNA testing.   Anderson flew to Spokane, Washington and returned to Los Angeles with Mercado in custody.   Anderson conducted a tape-recorded interview of Mercado which was played for the jury.   In the interview, Mercado claimed he was in custody in April of 2000.

Parole agent Susan Carter supervised Mercado after he was paroled on February 14, 2000 until June of 2001.   During this time, Mercado was not arrested or in custody.

Flynn Lamas, a senior criminalist who has worked at the sheriff's crime lab for 10 years, identified a copy of a report issued by analyst William Haynes on examination of a sexual assault kit.   Haynes previously worked at the sheriff's crime lab but does not at this time.   Lamas has prepared similar reports and indicated such reports usually are written close in time to when the work is performed.   Lamas routinely relies on the work of other chemists at the crime lab.   The report indicates Haynes determined three of the samples in the sexual assault kit were positive for semen.   Haynes found semen in an external genital sample, a dried secretion sample from the abdominal area and a dried secretion sample from the right breast.   These samples and a reference sample obtained from the victim were prepared for DNA analysis and the results of the analysis were entered into the sheriff's system on February 19, 2002.

Lamas extracted DNA from the cellular material found in the sexual assault kit and developed a DNA profile that did not match the victim's DNA profile.   Lamas also performed DNA analysis on a sample booked into evidence by Detective Anderson in May of 2007.   The DNA extracted from the sample provided by Detective Anderson matched the profile of the unknown DNA extracted from the victim's external genital and abdominal samples.   Lamas opined the chances of another individual from the Hispanic population sharing this DNA profile at one in 2.9 quadrillion.

CONTENTIONS

Mercado contends admission of DNA evidence without the testimony of the analyst who conducted the DNA testing violated his Sixth Amendment right to confront and cross-examine witnesses and the hearsay rule.   He also contends the trial court erroneously failed to instruct the jury on the lesser included enhancement of kidnapping the victim without increasing the risk of harm.

DISCUSSION

1.  Lamas's testimony properly admitted.

a. Mercado's contention.

Mercado contends his Sixth Amendment right to confront and cross-examine witnesses and the hearsay rule were violated when the trial court permitted criminalist Lamas to testify about the results of DNA testing conducted by criminalist Haynes who no longer worked at the crime lab.   According to Mercado, Lamas testified based on Haynes's forensic analysis of the sexual assault kit.   Mercado notes Lamas read from Haynes's report which documented the process employed by Haynes to extract semen from the collected samples and the manner in which the semen was tested for DNA.

Mercado argues admission of Lamas's testimony constituted error under Melendez-Diaz, supra, --- U.S. ----, 129 S.Ct. at pp. 2534-2535, which is reviewable, notwithstanding defense counsel's failure to object at trial, because the failure to object amounted to ineffective assistance of counsel.   Mercado further contends the testimony is not admissible under People v. Geier (2007) 41 Cal.4th 555, which permitted the supervisor of a DNA analyst to testify with respect to results obtained by the subordinate analyst, because Melendez-Diaz casts the holding of Geier into doubt.   Mercado additionally contends Lamas's reliance on Haynes's report violated the hearsay rule.   Mercado claims the error was prejudicial because, absent the DNA evidence, the jury likely would have believed Mercado's defenses of misidentification and alibi.

b. Mercado forfeited these issues by failing to raise them in the trial court.

Mercado concedes he failed to object to admission of Lamas's testimony regarding the DNA evidence on Sixth Amendment or hearsay grounds.   He has therefore failed to preserve these claims for appeal.  “ ‘No procedural principle is more familiar to this Court than that a constitutional right,’ or a right of any other sort, ‘may be forfeited in criminal as well as civil cases by the failure to make timely assertion of the right before a tribunal having jurisdiction to determine it.’  [Citation.]”  (U.S. v. Olano (1993) 507 U.S. 725, 731;  accord People v. Lewis and Oliver (2006) 39 Cal.4th 970, 1028, fn. 19;  People v. Catlin (2001) 26 Cal.4th 81, 138, fn. 14;  People v. Alvarez (1996) 14 Cal.4th 155, 186.)

Even if this omission is overlooked and the contention is reached to forestall Mercado's claim of ineffective assistance of counsel, no error appears.

c. No violation of the Sixth Amendment or the hearsay rule.

In Melendez-Diaz the prosecution introduced three notarized “ ‘certificates of analysis' “ which indicated forensic analysis performed on seized substances showed it contained cocaine.  (Melendez-Diaz, supra, --- U.S. ----, 129 S.Ct. at p. 2530-2531.)  Melendez-Diaz held the admission of the certificates, in the absence of the trial testimony of the analysts who tested the seized substances, violated the Sixth Amendment because the certificates fell “within the ‘core class of testimonial statements' “ subject to the Sixth Amendment restrictions described in Crawford v. Washington (2004) 541 U.S. 36 [158 L.Ed.2d 177].  (Melendez-Diaz, supra, at p. 2532.)

Four days after issuing its decision in Melendez-Diaz, the United States Supreme Court denied certiorari in People v. Geier (2007) 41 Cal.4th 555, cert. den.   June 29, 2009, No. 07-77770, sub nom.  Geier v. California (2009) _ U.S. _ [129 S.Ct. 2856].)  People v. Geier, supra, 41 Cal.4th 555, held a senior associate could testify about the results a subordinate's DNA testing without violating Crawford or the defendant's Sixth Amendment rights.  (People v. Geier, supra, at p. 605.)  Geier concluded the subordinate's reports were not testimonial because the reports “constitute a contemporaneous recordation of observable events rather than the documentation of past events.”  (Id. at p. 605.)   Our Supreme Court has granted review of several appellate decisions that addressed the tension between Menendez-Diaz and Geier.²

Neither Melendez-Diaz nor Geier has any application in this case.   It is unclear whether Lamas extracted DNA from samples prepared by Haynes or whether Lamas merely relied upon Haynes's previous determination as to which samples in the sexual assault kit contained semen.   In either case, Lamas did not testify with respect to any DNA analysis conducted by Haynes.   Rather, Lamas testified based on DNA analysis he personally performed.   Lamas indicated he personally extracted DNA from the samples contained in the sexual assault kit and found DNA that was not Jennifer D.'s. Lamas also analyzed DNA found in the known sample from Mercado submitted by Detective Anderson and found it matched the unknown DNA contributor from Jennifer D.'s stomach and genital area.   Because Lamas testified at trial and was subject to cross-examination, this case is far afield from Melendez-Diaz or Geier.

Even assuming Lamas extracted DNA from semen samples prepared by Haynes, the actual DNA analysis was done by Lamas.  Melendez-Diaz expressly noted it was not holding that “anyone whose testimony may be relevant in establishing the chain of custody, authenticity of the sample, or accuracy of the testing device, must appear in person as part of the prosecution's case,” or that “everyone who laid hands on the evidence must be called.”  (Melendez-Diaz, supra, --- U.S. ----, 129 S.Ct. at p. 2532, fn. 1.)

Regarding the hearsay objection, Lamas testified Haynes determined which of the samples in the sexual assault kit contained semen.   In this regard, Lamas's testimony was hearsay.   However, Lamas's subsequent testing of the samples confirmed Haynes's finding.   Thus, even had this testimony been excluded, no different result would have obtained because Lamas properly was permitted to testify about DNA analysis he personally performed.

d. Any conceivable error was harmless.

The erroneous admission of statements in violation of a defendant's Sixth Amendment rights is subject to a harmless error analysis under Chapman v. California (1967) 386 U.S. 18, 24 [17 L.Ed.2d 705].  (Delaware v. Van Arsdall (1986) 475 U.S. 673, 681, 684 [89 L.Ed.2d 674];  People v. Cage (2007) 40 Cal.4th 965, 991-992.)

Here, overwhelming evidence of Mercado's guilt was provided through the testimony of Jennifer D., who had an extensive opportunity to observe Mercado and identified Mercado with certainty as the perpetrator of the rape.   Mercado's claim he was incarcerated at the time of the offense was rebutted by his parole agent who testified he was not in custody during the time she supervised him.   In sum, any conceivable error in admitting Lamas's testimony was harmless beyond a reasonable doubt.

2. Instruction on the lesser included enhancement was not required.

a. Background.

During the jury instruction conference, the prosecutor noted “there is under [section] 667, a lesser included [enhancement], ․ simple kidnapping without increasing the risk of harm to the victim.   Given the facts of this case, since [Jennifer D.] was driven up into the mountains and [was] raped and thrown over an embankment, I will argue to the court that either there was [only] kidnapping [that] increased ․ the risk of harm․”  The trial court indicated Mercado might still testify and “say something about the intent that would weigh in favor of instructing on kidnapping.”   However, “it doesn't look like that is something we would instruct on as a lesser included offense in this particular case.”

At the close of the evidence, the trial court again addressed the lesser included enhancement and found “there is no evidence in this case to suggest” it would be applicable.

b. Mercado's argument.

Mercado contends the evidence shows Jennifer D. willingly got into the car and did not withdraw her consent until Mercado parked in the location where the rape occurred.   Mercado argues the jury could have decided the only movement for purposes of kidnapping was Mercado's act of forcing Jennifer D. into the backseat and that this movement did not increase the risk of harm over and above that inherent in the rape.   Mercado concludes the trial court erred by not instructing the jury with respect to the lesser included enhancement of kidnapping the victim.

Mercado concedes current case law provides a trial court has no sua sponte obligation to instruct on lesser included enhancements.  (People v. Majors (1998) 18 Cal.4th 385, 410.)   He argues Majors is no longer controlling in light of Apprendi v. New Jersey (2000) 530 U.S. 466 and People v. Seel (2004) 34 Cal.4th 535.   Mercado asserts the failure to instruct on the lesser included enhancement presented the jury with an inappropriate all or nothing choice which resulted in a substantial increase in Mercado's prison term without a proper fact-finding procedure.³  Alternatively, Mercado argues the prosecutor's request to instruct on the lesser included enhancement triggered the trial court's obligation to give the instruction.

c. Mercado was not entitled to instruction on the lesser included enhancement.

Under California law, “a trial court must instruct on lesser included offenses, even in the absence of a request, whenever there is substantial evidence raising a question as to whether all of the elements of the charged offense are present.”  (People v. Lewis (2001) 25 Cal.4th 610, 645.)   However, a trial court is not required to instruct sua sponte on lesser included enhancements.  (People v. Majors, supra, 18 Cal.4th at p. 411.)   Majors explained, “[o]ne of the primary reasons for requiring instructions on lesser included offenses is ‘ “to eliminate the distortion of the factfinding process that is created when the jury is forced into an all-or-nothing choice between [guilt] and innocence” ‘ - that is, to eliminate ‘ “the risk that the jury will convict ․ simply to avoid setting the defendant free.”  ‘ [Citation.]  This risk is wholly absent with respect to enhancements, which a jury does not even consider unless it has already convicted defendant of the underlying substantive offenses.”  (Id. at p. 410.)

Mercado urges the holding in Majors is no longer viable in light of Apprendi v. New Jersey, supra, 530 U.S. 466 and People v. Seel, supra, 34 Cal.4th 535.   We disagree.

Apprendi held that “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.”   (Apprendi v. New Jersey, supra, 530 U.S. at p. 490.)  Seel held double jeopardy protections preclude retrial of premeditation allegations after a finding of evidentiary insufficiency.  (People v. Seel, supra, 34 Cal.4th at p. 539.)   Neither Apprendi nor Seel impacts the holding in Majors regarding the sua sponte duty of the trial court to instruct on lesser included enhancements.  Majors does not remove from the jury the ability to act as the factfinder to increase the penalty for a crime beyond the prescribed statutory maximum or deprive the defendant of a legal right to a lesser sentence.   Therefore, Majors does not run afoul of Apprendi or Seel.

Regarding the assertion the prosecutor's request for instruction on the lesser included enhancement triggered the trial court's obligation to instruct thereon, the record reveals the prosecutor did not request the instruction.   Rather, the prosecutor noted the possibility of a lesser included enhancement and argued it did not apply.   The trial court agreed and declined to instruct the jury on the lesser included enhancement.   This ruling was correct in that the evidence showed beyond any reasonable dispute that Mercado's movement of Jennifer D. substantially increased the risk of harm over and above that necessarily inherent in forcible rape.

We note the initial movement of Jennifer D. may not be considered in determining whether Mercado substantially increased the risk of harm because a charge of kidnapping cannot be predicated on asportation of an individual by fraud.  “ ‘ “[K]idnapping ․ can only be accomplished by the use or threat of force.”  ‘ “ (People v. Davis (1995) 10 Cal.4th 463, 517, fn. 13;  People v. Rhoden (1972) 6 Cal.3d 519, 526-527.)   However, Mercado continued the kidnapping of Jennifer D. after the rape was complete.   While Jennifer D. remained in the back seat, Mercado got into the front seat and drove from the scene of the rape to a second location near an embankment.   Mercado stopped the car, ordered Jennifer D. into the front seat, snapped her neck with two hands in an apparent attempt to kill her, then dragged her from the car and pushed her down an embankment.

Based on this evidence, we readily conclude Mercado was not entitled to instruction on the lesser included enhancement of kidnapping the victim without increasing the risk of harm.   Moreover, based on the facts of this case, even if the failure to instruct on the lesser included enhancement constituted error, it is not reasonably probable Mercado would have received a more favorable outcome had the jury been instructed on the lesser enhancement.   (People v. Johnson (1995) 38 Cal.App.4th 1315, 1321.)

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

We concur:

FOOTNOTES

FN1. Subsequent unspecified statutory references are to the Penal Code..  FN1. Subsequent unspecified statutory references are to the Penal Code.

FN2. See People v. Gutierrez (2009) 177 Cal.App.4th 654, review granted Dec. 2, 2009, S176620 [concluding Geier remains viable];  People v. Rutterschmidt (2009) 176 Cal.App.4th 1047, review granted Dec. 2, 2009, S176213 [same];  People v. Lopez (2009) 177 Cal.App.4th 202, 206 review granted Dec. 2, 2009, S177046 [Geier “appears” to have been disapproved by Melendez-Diaz ];  People v. Dungo (2009) 176 Cal.App.4th 1388, review granted Dec. 2, 2009, S176886 [observing Melendez-Diaz has undermined Geier's rationale]..  FN2. See People v. Gutierrez (2009) 177 Cal.App.4th 654, review granted Dec. 2, 2009, S176620 [concluding Geier remains viable];  People v. Rutterschmidt (2009) 176 Cal.App.4th 1047, review granted Dec. 2, 2009, S176213 [same];  People v. Lopez (2009) 177 Cal.App.4th 202, 206 review granted Dec. 2, 2009, S177046 [Geier “appears” to have been disapproved by Melendez-Diaz ];  People v. Dungo (2009) 176 Cal.App.4th 1388, review granted Dec. 2, 2009, S176886 [observing Melendez-Diaz has undermined Geier's rationale].

FN3. The enhancement found true by the jury requires imposition of an indeterminate term of 25 years to life;  the lesser included enhancement requires an indeterminate sentence of 15 years to life.  (See § 667.61, subds. (a), (b), (d)(2), (e)(1).).  FN3. The enhancement found true by the jury requires imposition of an indeterminate term of 25 years to life;  the lesser included enhancement requires an indeterminate sentence of 15 years to life.  (See § 667.61, subds. (a), (b), (d)(2), (e)(1).)

KITCHING, J. ALDRICH, J.