THE PEOPLE v. HAKIM RASHEED GIBSON (2011)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

Hakim Rasheed Gibson appeals from the judgment entered following his convictions by jury on count 1 – sexual penetration by a foreign object (Pen.Code, § 289, subd. (a)(1)) and count 2 – assault with intent to commit rape (Pen.Code, § 220) with, as to each of those counts, personal use of a dangerous or deadly weapon (Pen.Code, § 667.61, subd. (b)), count 3 – second degree robbery (Pen.Code, § 211), and count 4 – petty theft with a prior conviction (Pen.Code, § 666), with court findings that he suffered two prior felony convictions (Pen.Code, § 667, subd. (d)), two prior serious felony convictions (Pen.Code, § 667, subd. (a)), and two prior felony convictions for which he served separate prison terms (Pen.Code, § 667.5, subd. (b)).  The court sentenced appellant to prison for 57 years to life.   We reverse the judgment in part, but otherwise affirm it with directions.

FACTUAL SUMMARY

Viewed in accordance with the usual rules on appeal (People v. Ochoa (1993)

6 Cal.4th 1199, 1206), the evidence established that on the night of July 27, 2006,

Amber O. (Amber) consumed alcoholic beverages.   She drove a two-door Ford Escort a few blocks but, feeling intoxicated, pulled to the side of the road to sleep.   Amber reclined in the front passenger seat and slept.   She was wearing a short, strapless dress and high-heel shoes.   Her purse, containing her wallet, cash, credit cards, and a diamond necklace, was on the floor in front of her.   Amber's jeans and her belt were in the back seat.

Later that night, Amber awoke to find that appellant was seated to her right and her underwear had been removed.   Appellant had wrapped Amber's belt around her neck and was choking her with it.   Appellant tried to force Amber's legs apart and he digitally penetrated her vagina.   Amber asked appellant what he was doing and told him to stop.   Appellant, using profanity, told her that she better shut up or he would kill her.   Amber heard appellant's zipper while she was struggling.   She asked appellant to leave her alone and, hoping he would stop, told him that she had AIDS. Appellant, using profanity, again told Amber to shut up or he would kill her.   Eventually, Amber partially freed herself and began kicking appellant.   Appellant took Amber's purse and jeans, and fled.

Neil D'Monte drove to the scene and saw Amber screaming for help.   Amber told D'Monte that someone tried to rape her.   D'Monte looked in the Escort and saw evidence of a major struggle.   He called police and waited with Amber until police arrived.   Amber was taken to the hospital with various injuries, including injuries consistent with something having strangled her neck.   A nurse took a swab of, inter alia, Amber's left breast.   On July 28, 2006, police lifted 22 latent fingerprints from the Escort.   Police also obtained appellant's fingerprints and samples of his DNA.

Amber identified her assailant as an African–American but did not identify appellant at trial.   Wendy Hall, a Los Angeles Police Department (LAPD) forensic print specialist, compared the above 22 prints with appellant's fingerprints and testified to the effect that a palm print from each of appellant's hands was found on the outside passenger window of the Escort, and fingerprints from three fingers of each of his hands were found on the inside passenger window.   Jody Hynds, a DNA identification expert, identified appellant's DNA in the DNA sample taken from the swab of Amber's left breast.   Appellant presented no defense witnesses.

ISSUES

Appellant claims (1) the trial court erroneously admitted testimonial hearsay related to DNA evidence in violation of his federal constitutional rights to confrontation and due process, (2) appellant's conviction for robbery must be reversed, (3) the trial court erroneously precluded appellant from cross-examining Hall about problems within the LAPD's fingerprint lab, (4) a Penal Code section 667, subdivision (a) enhancement must be stricken, and (5) appellant's conviction for petty theft with a prior conviction (count 4) must be reversed because that offense is a lesser included offense of robbery (count 3), and one of the Penal Code section 1465.8, subdivision (a)(1) court security fees must be stricken.

DISCUSSION

1. The Trial Court Did Not Erroneously Admit Testimonial Hearsay.

a. Pertinent Facts.

On December 8, 2008, during the People's presentation of the evidence and outside the presence of the jury, appellant indicated as follows.   The People intended to call Hynds to testify.   Hynds did not conduct the examination in this case but reviewed the work of the analyst who did.   If Hynds “testif[ied] to anything that she ․ did not analyze,” her testimony was hearsay violative of appellant's “right to due process to confront the witnesses against him.”

The prosecutor indicated Hynds was the supervisor of all analysts who conducted work on this case, she reviewed all the records, and was familiar with all procedures conducted.   Hynds did the analysis of the data in this case, did all the comparisons, and her conclusions were found in the records.   The prosecutor indicated Hynds “will be making reference to the reports that are contained therein, in which she did not personally do the work, but she supervised the work.”   The court overruled appellant's objection, stating “This is a matter of expert opinion as well” and that that was an exception.

Later that day, Hynds testified before the jury as follows.   Hynds was a technical manager at Forensic Testing Laboratory and had been employed there since October 2008.   From January 2000 through September 2008, she had worked at Orchid Cellmark (OC), a private laboratory facility where she was a forensic supervisor and DNA analyst.   OC was a private forensic testing laboratory which conducted DNA testing for the government, private individuals, and “defense testing.”   OC was accredited for DNA testing by several institutions, including the American Society of Crime Laboratory Directors.   Hynds had testified as a DNA identification expert about 65 times.

According to Hynds, there were four steps to developing a DNA profile, i.e., extraction, quantitation, polymerase chain reaction, and detection.   Only 1 percent of a person's DNA was unique to that person, and 13 locations within the above 1 percent would be examined to produce a person's unique DNA profile.   OC employed safeguards and controls to insure the integrity of the DNA sample and the reliability of test procedures.

On October 20, 2006, OC received the evidence in this case from LAPD's scientific investigation division.   It included a swab from Amber's left breast and a swab from the inside cheek of her mouth.   DNA profiles were obtained from those items.

Hynds brought to court with her OC's case file for this case.   It bore an LAPD case file number.   Hynds testified the file contained “all the bench notes, all the notes that were taken during the processing of this case.”   She also testified, “as we process the sample through, once the sample is in the tube, ․ there's paperwork that's generated for all four steps and the data that is generated, actual DNA profiles and the reporting process, all that documentation is within my case file.”  (Sic.) All documents in the case file were prepared in the ordinary course of business at or near the time the actual analysis was done.

Hynds did not personally conduct the process to develop the DNA profiles from the swabs from Amber's mouth and left breast.   There were a few places Hynds analyzed the data, but she and the six analysts whom she supervised worked as a team to obtain a DNA profile.   Three of the four steps needed to develop a DNA profile, i.e., quantitation, polymerase chain reaction, and detection, were automated.   Hynds testified that “All I did was, I analyzed a few of the samples, and once the DNA profiles were developed, I reviewed the controls to make sure they worked properly.   I reviewed all the bench notes, and then I drew conclusions based on the comparison I made of the DNA profiles that were developed.”

DNA genetic typing of a male was recovered from the swab from Amber's left breast.   Hynds compared 13 locations in that genetic typing with 13 locations in genetic typing developed from appellant.   There was a match at all 13 locations.   Hynds later testified there was a match at 12 of the 13 locations, but appellant's genetic typing was found in all 13 locations.¹  The probability of randomly selecting another person from among the Black population who would have genetic typing matching the 12 locations was 1 in 189.9 trillion;  from among Caucasians, 1 in 5.16 quadrillion;  from among the Southeast Hispanics, 1 in 5.176 quadrillion;  from among the general Asian population, 1 in 7.278 quadrillion;  and from among Southwest Hispanics, 1 in 15.28 quadrillion.   Hynds calculated the statistics using a computer program issued by the Federal Bureau of Investigation.   OC would “identify” a person as a donor of DNA when the probability of finding a donor other than that person was less than 1 in 6.6 trillion.   Hynds “identified” appellant as the male contributor to the breast swab.²  People's exhibit No. 21, which Hynds testified was a copy of the “genetic typing table” that “show[ed] the genetic typings that were compared” was admitted into evidence without further objection.³

b. Analysis.

Appellant claims the trial court erroneously admitted testimonial hearsay, i.e., Hynds's testimony regarding the DNA reports, in violation of appellant's federal constitutional rights to confrontation and due process.   We disagree.

In People v. Geier (2007) 41 Cal.4th 555 (Geier ), our Supreme Court found nontestimonial a testifying DNA expert's recitation of a nontestifying biologist's report in which the biologist set out her compliance with a laboratory protocol and her observations regarding the genetic profiles extracted from known and unknown DNA samples.  (Id. at pp. 593–607.)

Geier observed there were basically three processes in DNA identification:  (1) processing of DNA from the suspect and the crime scene to produce X-ray films which indicate lengths of polymorphic fragments, (2) examination of the X-rays to determine whether any sets of fragments match, and (3) if there is a match, determination of the match's statistical significance.  (Geier, supra, 41 Cal.4th at p. 594, fn. 11.)   The important point for purposes of the defendant's claim in Geier was that the biologist, not the testifying DNA expert, performed the laboratory work required for completing the first step.  (Ibid.)

Geier stated, “For our purposes in this case, involving the admission of a DNA report, what we extract from [Crawford v. Washington (2004) 541 U.S. 36 [158 L.Ed.2d 177] (Crawford ) and Davis v. Washington (2006) 547 U.S. 813 [165 L.Ed.2d 224 (Davis ) ]] ․ is that a statement is testimonial if (1) it is made to a law enforcement officer or by or to a law enforcement agent and (2) describes a past fact related to criminal activity for (3) possible use at a later trial.   Conversely, a statement that does not meet all three criteria is not testimonial.”  (Geier, supra, 41 Cal.4th at p. 605.)

Geier referred to the second enumerated point as “critical” (Geier, supra, 41 Cal.4th at p. 605), stating, “[the biologist's] observations, ․ 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.   ‘Therefore, when [she] made these observations, [she]

․ [was] “not acting as [a] witness[ ];” and [was] “not testifying” ‘ [Citation.].” (Id. at pp. 605–606.)   Geier held the DNA report was not testimonial for purposes of Crawford and Davis.  (Geier, supra, at p. 607.)

Later, in Melendez–Diaz v. Massachusetts (2009) 557 U.S. _ [129 S.Ct. 2527] (Melendez–Diaz ), the high court held testimonial a sworn affidavit from an analyst submitted by the prosecution in a drug prosecution, which stated that the substance seized from the defendant was cocaine of a certain weight.  (Id. at pp.  _ [129 S.Ct. at pp. 2530–2532].)  Melendez–Diaz rejected the dissent's argument that the affidavit was nontestimonial because a “conventional witness recalls events observed in the past, while an analyst's report contains near-contemporaneous observations of the test.”   (Id. at p. _ [129 S.Ct. at p. 2535.)

On the one hand, Melendez–Diaz suggests that if the high court were confronted with Geier's facts, the fact of a “contemporaneous recordation of observable events” (Geier, supra, 41 Cal.4th at p. 605) might not be as significant to the high court's confrontation analysis as it was to our Supreme Court's analysis in Geier.   On the other hand, and unlike Melendez–Diaz, Geier (like the present case) did not involve an affidavit.

In any event, we are obligated to follow precedent from our Supreme Court.  (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)   We conclude the documents in appellant's case file upon which Hynds relied and to which she referred during her trial testimony were nontestimonial for purposes of the Sixth Amendment.⁴  (Geier, supra, 41 Cal.4th at pp. 593–607.)

Moreover, even if the documents at issue were testimonial, the Confrontation Clause did not bar Hynds's testimony concerning her reliance on those documents or her testimony referring to those documents, because they were admissible, not for their truth, but as a basis for Hynds's expert opinion.  (Cf. People v. Gardeley (1996) 14 Cal.4th 605, 618–619;  People v. Thomas (2005) 130 Cal.App.4th 1202, 1209–1210.)

Finally, even if the documents at issue were testimonial, it does not follow that we must reverse the judgment.   There is no dispute someone committed the crimes at issue in counts 1, 2, and 4, and we conclude post that there was sufficient evidence appellant committed the crime at issue in count 3. Indeed, the real issue as to all counts was identity.   There was overwhelming evidence from the fingerprint evidence that appellant committed the crimes.   The alleged evidentiary error was not prejudicial under any conceivable standard.   (People v. Watson (1956) 46 Cal.2d 818, 836;  Chapman v. California (1967) 386 U.S. 18, 24 [17 L.Ed.2d 705].)

2. There Was Sufficient Evidence Supporting Appellant's Robbery Conviction.

Appellant claims there is insufficient evidence supporting his robbery conviction because there was no substantial evidence (1) Amber was aware of the robbery or (2) appellant intended to steal her purse and jeans when he used force against her.   We reject the claims.

As to appellant's first claim, if the elements of robbery are otherwise satisfied, the fact the victim may not be aware of the robbery or the taking of property is irrelevant.  (People v. Davis (2009) 46 Cal.4th 539, 609;  People v. Jackson (2005) 128 Cal.App.4th 1326, 1330–1331.)   As to appellant's second claim, the jury reasonably could have concluded, given the relatively small size of Amber's car and the location of the purse and jeans inside the car, that those items were in plain view, appellant was aware of them before he assaulted her, and he did so to rape her and to rob her of those items.  (People v. Holt (1997) 15 Cal.4th 619, 671;  People v. Shadden (2001) 93 Cal.App.4th 164, 170.)

3. The Trial Court Did Not Impermissibly Restrict Appellant's Cross–Examination of Hall.

a. Pertinent Facts.

Prior to the December 2008 testimony of Hall, appellant's counsel indicated he wanted to elicit testimony from her regarding “the recent problems that have come to light over at the LAPD lab.”   The court indicated it had read the Los Angeles Times and “[knew] there [was] an issue,” whether or not the extent of it had been accurately reported.   The court stated appellant could ask Hall about “her proficiency testing[,] ․ the quality of her supervision[,] ․ how often these things are reviewed[,]” and “her own issues.”

Appellant's counsel said he wanted to ask Hall “about other issues within the lab” and the court asked what they were.   Appellant's counsel stated, “from statements attributed to people who work for LAPD, there have been erroneous comparisons to exemplars that have been made by that lab.”

The prosecutor posed a relevance objection and argued Hall had not had any problems and had no information on appellant's issue.   The court asked appellant's counsel if he had a response, and appellant's counsel replied no.   The court indicated appellant could examine Hall about her proficiency testing, the verification process, and any cases in which her evaluations were inaccurate or in which persons had been wrongly convicted based on an erroneous fingerprint identification made by her.   However, the court stated, “as far as other things with other people and other analysts, I think that's a 352 problem.   Because ․ it ․ would take undue time to go into that, so I will sustain an objection to that.”

During trial, the court permitted appellant to examine Hall consistent with its ruling.   At the conclusion of Hall's testimony, the court posed to Hall clarifying questions which the jury had posed to the court concerning fingerprint identifications, and Hall answered the questions.   The jury did not, during deliberations, pose any questions to the court concerning fingerprint identification.

b. Analysis.

Appellant claims the trial's court refusal to permit him to cross-examine Hall about problems within the LAPD fingerprint lab deprived him of his rights to present a defense and to confrontation.   We disagree.   The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will create substantial danger of undue prejudice.  (Evid.Code, § 352.)   We review a trial court's ruling under Evidence Code section 352 for abuse of discretion.  (People v. Watson (2008) 43 Cal.4th 652, 683–684.)

Here, it appears appellant asked the trial court to permit appellant to cross-examine Hall concerning unidentified alleged “recent problems” that had “come to light over at the LAPD lab.”   Specifically, and based on appellant's proffer as reflected in the record, it appears he wanted to ask Hall about alleged erroneous identifications at the laboratory because appellant had become aware of multiple hearsay concerning identification comparisons at the laboratory.   That hearsay was an alleged Los Angeles Times article referring to unidentified statements made at an unspecified time(s) by unidentified people who allegedly worked in some capacity for LAPD.

In resolving an Evidence Code section 352 issue, a trial court need not expressly weigh prejudice against probative value, or even expressly state it has done so.   All that is required is that the record demonstrates the trial court understood and fulfilled its responsibilities under section 352.   (People v. Williams (1997) 16 Cal.4th 153, 213.)   The trial court did not err or abuse its discretion by precluding, under Evidence Code section 352, appellant's proposed cross-examination of Hall on what was essentially a collateral matter.   Moreover, the application of ordinary rules of evidence, as here, did not violate appellant's constitutional rights to present a defense or to confrontation.  (Cf. People v. Boyette (2002) 29 Cal.4th 381, 427–428;  see People v. Wilson (2008) 44 Cal.4th 758, 794.)

4. One True Finding as to a Penal Code Section 667, Subdivision (a) Enhancement Allegation Must Be Reversed.

Respondent concedes appellant's claim that one of the Penal Code section 667, subdivision (a) enhancements must be stricken, because the two underlying 1998 convictions for robbery were not “brought and tried separately” within the meaning of Penal Code section 667, subdivision (a).   We accept the concession (In re Harris (1989) 49 Cal.3d 131, 136;  People v. Wagner (1994) 21 Cal.App.4th 729, 733–734) and we will modify the judgment accordingly.

5. Appellant's Conviction on Count 4 Must Be Reversed.

Respondent concedes appellant's claim that petty theft with a prior conviction (count 4) is a lesser included offense of robbery (count 3);  therefore, appellant's conviction on count 4 must be reversed.   We accept the concession (People v. Villa (2007) 157 Cal.App.4th 1429, 1433–1435) and we will modify the judgment accordingly.   Appellant also claims one of the $20 Penal Code section 1468.5, subdivision (a)(1) court security fees (presumably the fee associated with count 4) must be stricken.   Respondent does not address the issue.   The court did not orally pronounce such a fee as to count 4;  therefore, there is no need to strike such a fee.

DISPOSITION

The judgment is (1) reversed as to appellant's conviction for petty theft with a prior conviction (count 4), and (2) reversed as to the true finding pertaining to the Penal Code section 667, subdivision (a) enhancement allegation based on appellant's 1998 conviction for second degree robbery (count 5 in case No. MA015014).  In all other respects, the judgment is affirmed.   The trial court is directed to dismiss count 4 in the present case, to dismiss a Penal Code section 667, subdivision (a) enhancement allegation based on our above reversal of the true finding as to that allegation, and to forward to the Department of Corrections an amended abstract of judgment.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

We concur:

FOOTNOTES

FN1. Later, Hynds indicated a “match” would exist if two genetic profiles (that of a known person and that of a questioned person) were the same at 13 locations, but if they were the same at less than 13 locations, they would be described as “consistent” with each other.   However, whether genetic profiles matched or were merely consistent, if the probability of a person other than the questioned person having the same profile as the known person was statistically small enough, the questioned person would be “identified” as the known person..  FN1. Later, Hynds indicated a “match” would exist if two genetic profiles (that of a known person and that of a questioned person) were the same at 13 locations, but if they were the same at less than 13 locations, they would be described as “consistent” with each other.   However, whether genetic profiles matched or were merely consistent, if the probability of a person other than the questioned person having the same profile as the known person was statistically small enough, the questioned person would be “identified” as the known person.

FN2. The probability that someone other than appellant contributed male DNA found on Amber's belt was “in the millions.”.  FN2. The probability that someone other than appellant contributed male DNA found on Amber's belt was “in the millions.”

FN3. During jury deliberations, the jury asked the court various DNA-related questions..  FN3. During jury deliberations, the jury asked the court various DNA-related questions.

FN4. The issue of the impact, if any, of Melendez–Diaz upon Geier is pending before our Supreme Court in, inter alia, People v. Lopez, review granted Dec. 9, 2009, S177046.).  FN4. The issue of the impact, if any, of Melendez–Diaz upon Geier is pending before our Supreme Court in, inter alia, People v. Lopez, review granted Dec. 9, 2009, S177046.)

KLEIN, P. J. ALDRICH, J.