Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 05F00561
BUTZ, J.A jury convicted defendant Julio Romero Garza of second degree commercial burglary (Pen. Code, § 459), forcible oral copulation (§ 288a, subd. (c)(2)), two counts of rape (§ 261, subd. (a)(2)), and two counts of forcible sodomy (§ 286, subd. (c)(2)). The trial court sentenced defendant to the upper term on all counts, which resulted in an aggregate sentence of 40 years in state prison.
Undesignated statutory references are to the Penal Code.
On appeal, defendant contends (1) taking a deoxyribonucleic acid (DNA) sample from him pursuant to section 296 violated his Fourth Amendment rights; (2) DNA identification evidence was improperly admitted; (3) the trial court erred in admitting DNA match probability evidence referenced to three racial groups; (4) the court improperly admitted uncharged misconduct evidence; and (5) the court’s imposition of the upper term sentence on each count violated his federal constitutional rights. We reject these contentions and shall affirm the judgment.
FACTUAL BACKGROUND
On March 28, 2000, D.B. was working the 6:00 p.m. to 2:00 a.m. shift as a bartender at Harvey’s Tavern in North Highlands. Her shift was slow, so she started cleaning the bar at around 11:00 p.m. After mopping the floors, D.B. went outside to her car, which was parked by the entrance to the bar. A red compact car pulled up as D.B. was cleaning her car windows. A Black man went from the car to a nearby payphone, while a Hispanic man asked her if the bar was still open. After D.B. told the man the bar was open until 2:00 a.m., he came into the bar, sat on a barstool, and asked for a beer.
D.B. opened a bottle of beer and set it down for the man. Since the floor was still wet, she sat on a barstool away from him. According to D.B., the man “asked me if I had a boyfriend, and I said, yes. And he asked me if I was true to my boyfriend, and I said, yes.” The man got up as if he was going to leave, but instead of leaving, “he went behind me, and he pushed the door shut and come up behind me with a knife to my throat and pulled me off the bar stool.”
The man had closed and locked the door to the bar before coming behind D.B. He threatened to kill her if she screamed. The man pulled D.B. over to the door on the other side of the bar and closed and locked it. He then forced D.B. to her knees and made her orally copulate him.
After this, the man yanked D.B. up, bent her over the counter, and had anal intercourse with her. The man then had vaginal intercourse with D.B., followed by another incident of forcible anal, then vaginal intercourse. D.B.’s assailant then took her jewelry and forced her to open the cash register. After taking all the cash from the register, defendant wrote down a phone number and told D.B. he would like to see her again. After writing down the number, the man told D.B. “Call me and I’ll split it with you.”
The man then told D.B. to lie down on the floor by the pool table and stay there until he left. D.B. went to her house after the man left. She lived with Manuel Garcia, the son of the bar’s owner. According to Garcia, D.B. came in around midnight crying and hysterical, telling him she had been robbed and raped.
Garcia called the authorities and took D.B. back to the bar, where both were interviewed by Sacramento County Sheriff’s deputies. After telling a deputy about the sexual assault and robbery, D.B. was taken to a hospital, where she eventually submitted to a sexual assault examination.
D.B. could not positively identify her assailant. She denied ever knowing defendant or purchasing methamphetamine from him. She admitted to using methamphetamine within a week of her attack, but was not under the influence on the night she was sexually assaulted.
DNA samples were taken from defendant, D.B., and D.B.’s boyfriend and compared to the DNA of semen from the rape kit. Defendant matched on all 15 DNA locations tested. The prosecution’s expert testified that the odds of another individual matching on all 15 locations were 1 in 17 quintillion for the African-American population, 1 in 10 quintillion for the Caucasian population, and 1 in 3 quintillion for the Hispanic population.
Cynthia R. testified about an uncharged sexual assault committed by defendant. On August 23, 2000, Cynthia was at her friend Herman’s apartment in North Highlands. She wanted a ride to another apartment in the complex, so she called her friend Renee, who lived across from Herman. Renee arranged for defendant, whom she was dating, to give Cynthia a ride.
Defendant asked Cynthia if they could first go to the market, where Cynthia could use her identification to buy cigarettes for defendant because he did not have any identification with him. As he drove, defendant showed her a silver gun, and explained he did this because they were going to have sex. Defendant told her he was only joking after Cynthia said this was scaring her.
About a minute later, defendant told Cynthia they were going to have sex. After Cynthia said, “Stop scaring [me],” defendant drove by the store and said something like, “I already told you what we were going to do.” He parked behind a warehouse and told Cynthia to take her clothes off.
Cynthia balked at defendant’s demand, so he threatened to kill her. She reached for the door handle but discovered it was broken. Cynthia took her clothes off, pleading, “Please don’t do this.” Defendant told her to shut up and struck her with his gun, telling Cynthia he was going to kill her.
Defendant grabbed Cynthia, pulled her down to his pants, and forced her to orally copulate him. He then climbed on top of Cynthia and forced himself inside her. Defendant had vaginal intercourse with Cynthia and tried to have anal intercourse with her. He then allowed Cynthia to put her clothes back on. As he drove her back, defendant said to Cynthia, “Please don’t tell nobody.”
The parties stipulated that defendant was convicted in 2001 of kidnapping Cynthia R. for the purpose of rape, forcible genital penetration, felony sexual battery, five counts of forcible oral copulation, and eight counts of forcible rape with enhancements for personal use of a firearm.
Defendant testified on his own behalf. According to defendant, he would go to Harvey’s Tavern with his cousin to sell methamphetamine. Defendant met D.B. there, who introduced herself as “Marie.” He claimed D.B. became a client of his methamphetamine business. D.B. once met defendant at a motel on Auburn Boulevard, where they used drugs and engaged in consensual sex.
Defendant testified that he sold some methamphetamine to D.B. on consignment. At around 8:00 p.m. on March 28, 2000, he showed up at the bar to collect $350 from D.B. She paid him $200 in front of the entrance, but defendant entered the bar to collect after realizing he had been shortchanged. Defendant came into the bar and told D.B. she owed him $150 more. D.B. offered to give defendant two blank checks from the bar as collateral. Defendant agreed, and the two engaged in consensual sex at the bar.
Manuel Garcia testified that two checks had been taken from the bar, but the theft occurred in November of 1999.
DISCUSSION
I
Defendant asserts the taking of DNA samples from him pursuant to section 296 violated the Fourth Amendment.
Before addressing this claim, we note the DNA sample taken under section 296 was not used as identification evidence against defendant at trial. The sample from defendant used in establishing the DNA identification evidence admitted at the trial was taken from defendant with his consent by a detective investigating the sexual assault on D.B.
Pursuant to section 296, a DNA sample was taken from defendant after his 2001 conviction for the sexual offenses involving Cynthia R. Defendant’s sample was on the database of DNA samples taken from offenders. A DNA sample from D.B.’s rape was compared to DNA samples in the database, and defendant was identified as a suspect after his DNA on the database was found to match the sample from the rape kit. Once suspicion was focused on defendant, a new DNA sample was taken from him (with his consent), and that sample was tested, along with DNA samples from D.B. and her boyfriend, against the DNA samples from the rape kit.
Section 296 is part of the DNA and Forensic Identification Database and Databank Act of 1998 (the DNA Act). (Stats. 1998, ch. 696, §§ 1 & 2.)
Defendant moved to suppress the sample taken pursuant to section 296 and all evidence obtained as a result of the sample as a violation of the Fourth Amendment. The trial court denied the motion.
Defendant asserts the trial court’s ruling violated his Fourth Amendment rights by admitting the fruits of a suspicionless search.
It is beyond dispute that the compulsory, nonconsensual extraction of biological samples constitutes a search and seizure subject to Fourth Amendment protection. (See Skinner v. Railway Labor Exec. Assn. (1989) 489 U.S. 602, 616 [103 L.Ed.2d 639, 659].) However, “[a]s the text of the Fourth Amendment indicates, the ultimate measure of the constitutionality of a governmental search is ‘reasonableness.’” (Vernonia School Dist. 47J v. Acton (1995) 515 U.S. 646, 652 [132 L.Ed.2d 564, 574].) “[W]hether a particular search meets the reasonableness standard ‘“is judged by balancing its intrusion on the individual’s Fourth Amendment interests against its promotion of legitimate governmental interests.”’” (Id. at pp. 652-653 [132 L.Ed.2d at p. 574].)
It has been repeatedly and consistently held that the extraction of biological samples from a convicted felon is not an unreasonable search and seizure within the meaning of the Fourth Amendment. (See, e.g., People v. Travis (2006) 139 Cal.App.4th 1271, 1289-1290; People v. Johnson (2006) 139 Cal.App.4th 1135, 1168 (Johnson); Alfaro v. Terhune (2002) 98 Cal.App.4th 492, 505-506.) As this court explained in Alfaro: “We agree with existing authorities that (1) nonconsensual extraction of biological samples for identification purposes does implicate constitutional interests; (2) those convicted of serious crimes have a diminished expectation of privacy and the intrusions authorized by the [DNA] Act are minimal; and (3) the [DNA] Act serves compelling governmental interests. Not the least of the governmental interests served by the [DNA] Act is ‘the overwhelming public interest in prosecuting crimes accurately.’ [Citation.] A minimally intrusive methodology that can serve to avoid erroneous convictions and to bring to light and rectify erroneous convictions that have occurred manifestly serves a compelling public interest. We agree with the decisional authorities that have gone before and conclude that the balance must be struck in favor of the validity of the [DNA] Act.” (98 Cal.App.4th at pp. 505-506.)
Defendant suggests two recent United States Supreme Court decisions, City of Indianapolis v. Edmond (2000) 531 U.S. 32 [148 L.Ed.2d 333] and Ferguson v. City of Charleston (2001) 532 U.S. 67 [149 L.Ed.2d 205], cast doubt on the foregoing state authorities. We need not address this issue at length because it has been resolved by a Court of Appeal decision.
In People v. Adams (2004) 115 Cal.App.4th 243, 255-259, the Court of Appeal, Sixth Appellate District, considered Ferguson and Edmond in determining whether collection of a blood sample pursuant to section 296 violates the Fourth Amendment. The court concluded the analysis in Ferguson and Edmond was inapplicable to taking DNA samples from convicted criminals because those cases involved searches and seizures of the general public. “[C]onvicted criminals do not enjoy the same expectation of privacy that nonconvicts do.” (Adams, at p. 258.) We agree with the analysis of this issue in Adams and therefore reject defendant’s contention.
II
Defendant asserts the controversy over how to express the statistical significance of a match on a “cold hit” taken from a DNA database renders the DNA identification evidence inadmissible under People v. Kelly (1976) 17 Cal.3d 24.
Defendant withdrew this claim “except to the extent the issue may be reconsidered by the California and United States Supreme Courts” after we published an opinion rejecting the same contention. (People v. Nelson (2006) 142 Cal.App.4th 696, review granted Nov. 15, 2006, S147051.) Since the California Supreme Court has granted review in Nelson, defendant has not withdrawn this contention.
Defendant never asked for a Kelly hearing or objected to the DNA identification evidence under Kelly. This forfeits his claim on appeal. (Evid. Code, § 353; People v. Ochoa (1998) 19 Cal.4th 353, 414.) Nevertheless, to forestall a claim of ineffective assistance of counsel, we also address his argument on the merits.
A “cold hit” refers to a suspect who is first identified by a search or “‘trawl’” through a DNA database. (Johnson, supra, 139 Cal.App.4th at p. 1146.) This happened to defendant when he was identified as a suspect after DNA from the D.B. rape kit matched his DNA profile in a DNA database. As we have already noted, evidence of this particular match was never presented to the jury. The DNA identification evidence admitted at trial was the product of a separate sample taken from defendant, which was then compared, along with DNA from D.B. and her boyfriend, with DNA obtained from the rape kit.
Directly on point, however, is Johnson, where the defendant made the same claim as defendant makes here. The defendant in Johnson was identified as a suspect after DNA taken from sperm cells found in the victim’s vagina matched his profile in the FBI’s nationwide DNA database. (Johnson, supra, 139 Cal.App.4th at p. 1143.) The defendant was located in Corcoran State Prison and a sample of his blood was obtained. The blood samples were analyzed and the match was confirmed. (Ibid.) The criminalist then used the statistical methods regularly applied to DNA evidence to determine “whether it was a real match or just coincidence because the [DNA] profile was shared by more than one person.” (Ibid.) The results of this second DNA analysis were presented to the jury. (Id. at pp. 1145-1146.)
The defendant in Johnson argued the identification evidence was inadmissible under Kelly because the cold hit presented different statistical issues than the standard statistical methods used to interpret a match where suspicion was developed from other information. (Johnson, supra, 139 Cal.App.4th at p. 1146.) The Court of Appeal rejected defendant’s claim because the match from the database search was never presented to the jury. The “database search merely provides law enforcement with an investigative tool, not evidence of guilt.” (Id. at p. 1150.) The rule of Kelly is “concerned with the effect of scientific evidence on the jury.” (Johnson, at p. 1150.)
The Court of Appeal concluded, “the means by which a particular person comes to be suspected of a crime--the reason law enforcement’s investigation focuses on him--is irrelevant to the issue to be decided at trial, i.e., that person’s guilt or innocence, except insofar as it provides independent evidence of guilt or innocence.” (Johnson, supra, 139 Cal.App.4th at p. 1150.) Therefore, “the fact that here, the genetic profile from the evidence sample (the perpetrator’s profile) matched the profile of someone in a database of criminal offenders, does not affect the strength of the evidence against appellant. The strength of the evidence against him (at least in terms of the DNA evidence) depends upon the confirmatory match between his profile and that of the perpetrator, and the calculation of the frequency of the perpetrator’s profile in the relevant population.” (Id. at p. 1151.) That the defendant was first identified as a suspect by a database search was irrelevant to the admissibility of the identification evidence. (Ibid.)
We find the reasoning in Johnson to be persuasive. The DNA database match was used as an investigative tool, and this match was never presented to the jury. The DNA identification evidence admitted against defendant was obtained using generally accepted practices. While there may be controversy concerning the statistical methods used to analyze a “cold hit,” this issue is irrelevant to the DNA identification evidence that was presented to the jury.
In addition to being forfeited, defendant’s claim also fails on the merits.
III
In his opening brief, defendant contends the trial court improperly allowed testimony about the match probability of the DNA identification evidence as referenced to major ethnic groups. After defendant’s opening brief, the California Supreme Court rejected this claim in People v. Wilson (2006) 38 Cal.4th 1237, 1250-1251. Defendant now withdraws his claim, except to the extent it may be reconsidered by the United States Supreme Court. Accordingly, we reject the claim.
IV
Defendant contends the trial court improperly admitted uncharged misconduct evidence, the kidnapping and sexual offenses committed against Cynthia R. The trial court admitted the evidence under Evidence Code sections 1108 and 1101, subdivision (b) over defendant’s objection.
Evidence Code section 1108, subdivision (a) states: “In a criminal action in which the defendant is accused of a sexual offense, evidence of the defendant’s commission of another sexual offense or offenses is not made inadmissible by [Evidence Code] Section 1101, if the evidence is not inadmissible pursuant to [Evidence Code] Section 352.” Section 1108 permits the admission of other crimes evidence to show defendant’s propensity or disposition. (People v. Falsetta (1999) 21 Cal.4th 903, 911 (Falsetta).) It does not require that the charged and uncharged crimes be similar. (People v. Frazier (2001) 89 Cal.App.4th 30, 40-41.)
Trial courts may admit other sex crimes evidence only after a careful weighing process under Evidence Code section 352. (Evid. Code, § 1108, subd. (a).) Before admitting other sex crimes evidence, “trial judges must consider such factors as its nature, relevance, and possible remoteness, the degree of certainty of its commission and the likelihood of confusing, misleading, or distracting the jurors from their main inquiry, its similarity to the charged offense, its likely prejudicial impact on the jurors, the burden on the defendant in defending against the uncharged offense, and the availability of less prejudicial alternatives to its outright admission, such as admitting some but not all of the defendant’s other sex offenses, or excluding irrelevant though inflammatory details surrounding the offense.” (Falsetta, supra, 21 Cal.4th at p. 917.)
Defendant contends the uncharged crimes evidence should not have been admitted because the probative value of the evidence is “radically outweighed by its prejudicial effect.” In support of his claim, defendant argues the uncharged misconduct evidence was inflammatory and confusing. We disagree and reject defendant’s claim.
The uncharged misconduct evidence is not inflammatory when examined in the context of the evidence of defendant’s crimes. The attacks on Cynthia and D.B. both involved a deadly weapon and verbal threats. In each, a series of rapes and other sexual assaults were committed against the victim. While the evidence of defendant’s sexual assault against Cynthia R. involved a kidnapping, defendant locked the door of the bar to prevent D.B.’s escape.
Defendant asserts the uncharged misconduct evidence was inflammatory because Cynthia R. was a more sympathetic witness. This claim is without merit. While D.B. admitted to using methamphetamine, she also testified she did not use any drugs on the night of the attack. By contrast, Cynthia R. testified to using marijuana on the night defendant attacked her. Neither victim was more sympathetic than the other.
In enacting Evidence Code section 1108, “the Legislature ‘declared that the willingness to commit a sexual offense is not common to most individuals; thus, evidence of any prior sexual offenses is particularly probative and necessary for determining the credibility of the witness.’” (People v. Soto (1998) 64 Cal.App.4th 966, 983.) The uncharged crimes testimony about a similar sexual assault by defendant, which took place less than five months after defendant’s attacks in the instant case, was highly relevant and minimally prejudicial. The trial court’s decision to admit the evidence was not an abuse of discretion.
V
Defendant contends the imposition of upper term sentences violates the Sixth Amendment to the United States Constitution as interpreted in Apprendi v. New Jersey (2000) 530 U.S. 466 [147 L.Ed.2d 435], Blakely v. Washington (2004) 542 U.S. 296 [159 L.Ed.2d 403], and Cunningham v. California (2007) 549 U.S. ___ [166 L.Ed.2d 856]. We disagree, finding the trial court did not rely on any factor that defendant was entitled to have proven to a jury beyond a reasonable doubt.
In imposing the upper terms, the trial court cited defendant’s “significant prior record” and his being on probation and parole at the time of the offenses. “[I]mposition of the upper term does not infringe upon the defendant’s constitutional right to jury trial so long as one legally sufficient aggravating circumstance has been found to exist by the jury, has been admitted by the defendant, or is justified based upon the defendant’s record of prior convictions.” (People v. Black (2007) 41 Cal.4th 799, 816 (Black).) Such is the case here.
A defendant’s significant prior record, as well as his probationary status, are “based upon the defendant’s record of prior convictions.” (Black, supra, 41 Cal.4th at p. 816; United States v. Corchado (10th Cir. 2005) 427 F.3d 815, 820; United States v. Fagans (2d Cir. 2005) 406 F.3d 138, 141-142.) Because either one of those circumstances renders a defendant eligible for the upper term sentence, the “Sixth Amendment right to [a] jury trial was not violated by imposition of the upper term” for defendant. (Black, at p. 820.)
We are bound to follow Black. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) Accordingly, defendant’s contention is without merit.
DISPOSITION
The judgment is affirmed.
We concur: BLEASE, Acting P. J., DAVIS, J.