Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 02F02888
RAYE, P. J.On a winter’s evening, Victor Jiminez sat on a porch, playing penny-ante poker with four friends. As they played, a young man approached and asked to join the game. After the group refused, the man demanded their money and pulled out a gun. A scuffle ensued, shots rang out, and Victor fell, mortally wounded. An information charged defendant Roy Lee Humphrey with murder committed in perpetration or attempted perpetration of a robbery, attempted robbery, and assault with a firearm. (Pen. Code, §§ 187, subd. (a), 189, 664/211, 245, subd. (a)(2).)
All further statutory references are to the Penal Code unless otherwise indicated.
Following a lengthy jury trial, the jury found defendant guilty on all counts. The trial court sentenced defendant to 25 years to life for murder and two years for attempted robbery, plus a 10-year consecutive determinative enhancement pursuant to section 12022.53, subdivision (b).
Defendant appeals on a wide range of issues. Defendant challenges the sufficiency of the evidence that he fired the gun. He argues the admission of mitochondrial DNA profile evidence ran afoul of Kelly-Frye. He contends the court erred in failing to allow impeachment of a prosecution witness with prior crimes of moral turpitude, in excluding impeachment evidence, and in admitting inadmissible hearsay to prove the attempted robbery allegation. Defendant argues the court erred in failing to provide one of the witnesses with an interpreter. He also presents a variety of instructional challenges and challenges his sentence, arguing it runs afoul of both section 654 and Cunningham. In addition, defendant contends his conviction should be reduced to second degree murder. Defendant objects to restitution to compensate Victor Jiminez’s wife for wages lost while attending trial. Finally, defendant contends his presentence conduct credits were erroneously calculated. We agree with the final contention and shall direct that the abstract of judgment be corrected. In all other respects, we shall affirm the judgment.
Mitochondrial DNA will be referred to herein as mtDNA and nuclear DNA as nDNA. References to “DNA” are to DNA in general.
People v. Kelly (1976) 17 Cal.3d 24 (Kelly); Frye v. United States (D.C. Cir. 1923) 293 F. 1013 (Frye). The Frye decision has been abrogated by the Federal Rules of Evidence (Daubert v. Merrell Dow Pharmaceuticals, Inc. (1993) 509 U.S. 579 [126 L.Ed.2d 469]), but the Kelly standard continued to be the law of this state. (People v. Leahy (1994) 8 Cal.4th 587, 604.) While the “Kelly-Frye” rule is now more properly referred to as the Kelly test, we will continue to refer to the evidentiary concept as “Kelly-Frye” as it is so denominated in numerous California cases and treatises.
Cunningham v. California (2007) 549 U.S. 270 [166 L.Ed.2d 856] (Cunningham).
FACTUAL AND PROCEDURAL BACKGROUND
Defendant was charged by information with murder, attempted robbery, and assault with a firearm. (§§ 187/189, 664/211, 245, subd. (a)(2).) The information alleged as a special circumstance that the murder was committed in the attempted commission of a robbery and that defendant used a firearm in the commission of the murder and the attempted robbery. (§§ 12033.53(b), 190.2(a)(17).) The information also alleged defendant was 17 years old at the time of the crime.
A trial followed during which the jury heard the following evidence.
The Murder
The Poker Game
One evening in January 2002, Victor Jiminez played poker with four friends: Antonio Jiminez, Bernardo Valdez Silva, Rafael Gonzales, and Artemio Gutierrez. They sat on the porch, around a table that contained about $20 dollars in coins. A light illuminated the table and the men around it. Marcelino Jiminez, who owned the house, and his mother were inside.
For the sake of clarity we will refer to the poker players by their first names.
Two young black men on bicycles stopped by the house’s front gate. As the men on the porch played, one of the young men approached and began to talk to Victor and Antonio in English. The man, about 19 or 20, had cropped braided rows of hair. Bernardo described the young man as weighing about 140 pounds, wearing a black jacket and cap. Antonio described the man as about six feet tall.
At the time of his arrest three months later, defendant was 17 years old, weighed 200 pounds, and stood 5 feet 11 inches tall.
The man asked to play cards, but Antonio said no. Rafael heard the man say in English, “Give me the money.” Bernardo and Artemio watched the man argue with Antonio and Victor for several minutes. Because Artemio did not understand English, he did not understand what the stranger was saying. Others at the table told him the man was asking to play. Bernardo saw Antonio gesture for the man to leave.
The young man pulled out a black automatic handgun. Victor reached for the gun and told the man not to shoot. Antonio grabbed the man around the waist. Bernardo saw Antonio push the man with his arm. Antonio and Victor wrestled with the man. During the struggle, the men broke the house’s front window.
Bernardo hit the young man in the head with a chair two or three times. The man shot his gun toward the porch, hitting Bernardo in the thigh. Bernardo fell in the doorway.
As Antonio and Victor tried to wrestle the gun away, the man shot Victor at close range. Victor fell to the side of the door.
Artemio saw a second black man outside the gate of the house. Rafael told the second man he could not come inside. In response the second man said, “I’m coming in.” Artemio saw a gun in the man’s waistband. Artemio struggled with the second man and was able to disarm him. The man dropped the gun and ran away.
Rafael heard the sound of two gunshots coming from the porch. Rafael chased the second man but turned to see the gunman running from the scene in the same direction.
What the Neighbor Saw
That evening, neighbor Rosa Miramontes heard a commotion outside and four or five gunshots. Miramontes immediately called 911. Miramontes saw two black men, in their mid-twenties or younger and wearing dark jackets and jeans, running away. One ran down the alley; the other ran toward the street.
What the Police Found
Officers arrived on the scene at 8:24 p.m. The crime scene investigator, Scott Williams, found two bicycles by the front gate. A silver Diamondback Assault 24 BMX leaned against the fence. A red Rocky Mountain 10-speed leaned against a pickup truck.
Past the gate, in the driveway, Williams found a brown leather jacket, a black knit cap, three wrapped condoms, a five-shot revolver with three rounds in the cylinder, and two.38-caliber rounds on the ground. Williams also noted a trail of blood leading into the house and a spent bullet on the porch.
Another crime scene investigator found three live.38-caliber bullets inside the revolver on the driveway, and a spent bullet on the porch. The investigator collected possible blood samples from the driveway and the kitchen floor in the house.
Robert Guitierrez, an identification technician, collected hair samples and fiber samples from a black and white cap found in the pocket of the brown jacket. He also found possible hair samples on the cap. Inside the cap he found unknown fibers.
Guitierrez also examined the two bicycles, the black knit cap, the condoms, and the brown jacket for fingerprints. He obtained six latent prints from the BMX bicycle but none from the Rocky Mountain bike.
On tape wrapped around the revolver Guitierrez found three latent prints. The revolver had the words “I.N.A. made in Brazil” stamped on it. The condoms yielded no prints. None of the prints on the gun matched either defendant’s or DeSwan Fisher’s fingerprints.
What Defendant’s Sister’s Girlfriend Saw
That January, Danna Easter was involved in a relationship with defendant’s sister Michelle. The couple, along with defendant, lived with defendant and Michelle’s mother.
On the afternoon of the shooting, defendant’s friend DeSwan Fisher came to the house to show defendant a dog. Fisher left. Later, after it became dark, defendant left. Defendant told Easter he was going to shoot dice.
Earlier that day, Easter saw defendant with a revolver in his hand in the hallway. Defendant told Easter that Fisher had a gun. Easter saw Fisher place the gun in his waistband.
Defendant returned three or four hours later, bleeding from his head and leg. Defendant told Easter and Michelle that he and Fisher had been attacked. Defendant said he fought with a man near St. Paul’s Church. The man hit him on the head and shot him. Defendant never got a good look at his attacker. He lost his wallet during the fight.
Defendant told his mother about the fight, and she became hysterical. She insisted that Easter and Michelle take defendant to the hospital. When Easter overheard defendant relating the story to his mother, defendant did not mention being with Fisher. Defendant told his mother he blacked out after being hit over the head and was robbed.
Defendant’s mother made a 911 call reporting defendant’s gunshot wound.
Easter, Michelle, and another sister took defendant to the hospital. Before they left, Michelle searched defendant’s wallet for his insurance card.
Defendant produced his insurance card at the hospital. After returning from the hospital, Easter saw defendant put his wallet in his room.
Easter told a prosecution investigator that defendant told her he went to shoot dice and “dudes like got into it.” Defendant admitted to Easter that he went to rob some people and “everything went down.” Defendant also said he had a problem with “some Mexicans.” The conversation took place after their return from the hospital while defendant washed his wound.
During cross-examination, Easter acknowledged she was interviewed by police a few months after the shooting after being arrested on a bench warrant. Easter testified that, during the interview with the investigator, she stated what she thought had happened, based on assumptions and opinions. She repeated what she had heard from someone that Mexicans were involved. Easter also admitted reading newspaper accounts of the shooting.
Easter was on probation for an assault with a deadly weapon committed in 2003. Easter, involved in another criminal case out of state, was transported back to California to testify.
At the Hospital
An emergency room nurse treated defendant on the night of the shooting. Defendant stated that he had been hit in the head and shot by an unknown assailant. The nurse confirmed defendant had his health insurance card with him at the hospital.
An emergency room physician treated defendant. Defendant suffered a gunshot wound in his left calf. Defendant told the physician he had been assaulted, hit in the back of the head with something, and lost consciousness. Defendant ran to his sister’s house and then noticed the leg wound. The physician also found a laceration at the base of his skull. An X-ray revealed multiple bullet fragments lodged in defendant’s leg.
A law enforcement officer interviewed defendant at the hospital. Defendant told the officer that, following the assault, someone took his wallet containing about $100. An investigator later photographed defendant’s wounds at his home. At the time defendant wore his hair in braids.
DeSwan Fisher’s Story
Fisher, 23, met defendant in 2001. The day of the shooting, Fisher saw defendant riding his bike in the morning. Fisher and defendant talked and decided to get together that evening.
Fisher returned to his house, smoked a lot of marijuana, drank some Hennessy, and slept. Around 6:00 p.m., defendant came to Fisher’s house. The duo left to recover money from “some Asians” who owed defendant money. Defendant told Fisher there might be problems with the Asians, and they might have to fight them. Defendant needed the money to buy marijuana.
Defendant rode a burgundy and gold mountain bike; Fisher rode a chrome 20-inch bike. Fisher wore defendant’s leather jacket and a black beanie with a brim. They left Fisher’s house and returned to defendant’s house, where defendant retrieved the leather jacket. Fisher had previously seen defendant wearing the beanie along with some of his friends, including someone named Marcus and “some white looking dude.”
The pair then rode their bikes to Jay’s apartment, where defendant got a gun from Jay. Fisher had seen defendant with.38-caliber revolver before.
They rode to the house where the Asians lived. Defendant went inside for a few minutes; Fisher remained outside. As they rode home, defendant told Fisher he knew about a place where some guys played cards. Defendant said he and Fisher might be able to “lick ’em” or “rob them.” Fisher told defendant, “Don’t do it.” Instead of responding, defendant continued to ride his bike.
Defendant rode his bike up to the gate of a house. Fisher saw defendant approach the porch and begin talking to several Mexicans. Fisher walked up to the gate and asked defendant, “what’s up?” Defendant told Fisher to hold on.
Fisher saw one of the men make a “shooing motion” in an attempt to get defendant to leave. As Fisher turned his bike around preparing to leave, he heard a commotion. As Fisher looked toward the porch, one of the men hit him on the forehead with a beer bottle. Fisher and the man began to fight, and Fisher’s jacket came off.
As Fisher ran away, he heard three or four shots. He ran to his girlfriend’s house. Fisher told his girlfriend and her sister, mother, stepfather, and aunt what had happened.
When Fisher saw defendant a few days later, defendant admitted he probably hurt someone and that someone might have died. Defendant also told Fisher he had been shot in the leg. When defendant spoke with Fisher at the Oak Park Community Center after the shooting, he told Fisher not to talk to the police.
A month or two after the shooting, officers contacted Fisher. Fisher gave a statement over the phone. Fisher’s relatives drove him to the police department the next day.
Officers arrested Fisher for murder and he later entered a plea agreement. Fisher entered a guilty plea to manslaughter and received a 10-year prison term in exchange for testifying against defendant. By entering into the plea agreement, Fisher avoided a sentence of life without the possibility of parole.
Fisher identified photos of the bikes found at the scene as the bikes he and defendant rode the night of the shooting.
During cross-examination, Fisher admitted membership in the G Parkway Mile Gang. Fisher testified he carried a gun the night of the shooting to protect himself from rival gang members. He denied carrying the weapon to commit a robbery but admitted defendant told him he needed a gun to backup defendant during the robbery.
Miscellaneous Evidence
A dismissal slip from defendant’s high school indicated he left school at 9:45 the morning of the shooting. Two months after the incident, officers executed a search warrant at defendant’s home. Officers found a black wallet in defendant’s bedroom. Inside the wallet officers found defendant’s Social Security card, his health insurance card, and the early dismissal slip from defendant’s high school.
Defendant’s neighbor and friend, Christopher Thacker, testified that the month of the shooting, he borrowed a brown leather jacket from defendant. Thacker stated the jacket he borrowed was the same color as the jacket found at the scene. About two weeks after Thacker borrowed the jacket, someone came to retrieve it. The person told Thacker that defendant gave them permission to get the jacket. According to Thacker, the individual resembled a photograph of Fisher.
Thacker submitted blood and hair samples. He acknowledged he might have put on the black and white cap found in the jacket, which would explain why his DNA was found on the cap.
What the Criminalists Found
Criminalist Faye Springer compared hair samples from defendant and Fisher with hair found on the black and white cap. Springer described the hairs found on the cap and the brown leather jacket as negroid-type hairs, short light-brown or blond hairs, and reddish-brown head hair. Springer could not rule out defendant as the source for the negroid hair found in the cap. Springer sent the hairs, as well as blood samples from Fisher and defendant, to the DNA lab for testing.
Criminalist Edwin Smith analyzed a blood sample taken from the victim (Victor) at the time of his autopsy. Smith detected no alcohol or narcotics.
Criminalist Michael Saggs determined the spent bullet found at the scene and the bullets found inside Victor could not have been fired by the.38-caliber revolver found on the driveway. The bullets’ characteristics did not match those of the revolver.
DNA Evidence
What Mary Hansen Found
Mary Hansen serves as the DNA technical lead at the Sacramento Crime Lab. The lab tests nDNA, not mtDNA. Hansen has testified as an expert on nDNA many times.
The lab examined several items. A minimal amount of DNA was found on the silver bike. The red bicycle yielded partial DNA from more than one person, with inconclusive results. Only one of the condom packages contained DNA, which did not match any submitted samples.
Hansen testified that Marcelino Jiminez’s blood was on the cement and on a condom wrapper found at the scene. Fisher was the source for much of the nDNA found on the black cap. Hansen stated the same nDNA profile as Fisher’s would be found at random among unrelated individuals in approximately one in 14 billion of the African-American population, one in 44 billion of the Caucasian population, and one in 70 billion of the Hispanic population.
Thacker was the source for most of the nDNA found on the black and white cap. Thacker’s particular nDNA profile was found at random in approximately one in 33 quintillion of the African-American population; one in 2 quintillion of the Caucasian population; and one in 23 quintillion of the Hispanic population.
The brown leather jacket yielded the nDNA of at least three or more individuals. Defendant could not be ruled out as one of the sources.
What Thomas Fedor Found
Thomas Fedor, a DNA analyst at the Serological Research Institute, has a Master’s degree in cellular and molecular biology. Fedor began mtDNA testing at the institute in 2002.
Fedor tested two blood samples and three hairs for mtDNA. The hairs had the C-C-T pattern matching defendant’s C-C-T mtDNA pattern. Defendant’s mtDNA was similar to that found on hairs at several other locations.
Fedor determined Fisher could not be the source for the three hairs. Conversely, Fedor found defendant could not be ruled out as a possible source for the three hairs because of his mitochondrial sequence. According to Fedor, the hairs belonged to either defendant, his mother, or someone else with the same maternal line as defendant.
What the Forensic Pathologist Found
Forensic pathologist Dr. Mark Super performed the autopsy on Victor. An X-ray revealed two bullets lodged in Victor’s back. A gunshot wound in Victor’s right chest had a surrounding abrasion ring and left a ring of black soot around the skin. The second entrance wound was on Victor’s left shoulder. This wound had a muzzle imprint on it, an imprint caused by the gun being placed against the body’s surface.
Dr. Super testified the second gunshot wound was fatal and caused Victor to die within a matter of minutes. Super recovered both bullets. Super also testified Victor sustained a third gunshot wound to his left leg. The bullet moved down from Victor’s head before entering the leg. According to Super, the two bullets lodged inside Victor could not have gone through another individual first. The bullet that went through Victor’s leg could have gone through another person first.
Defense Case
In a prior judicial proceeding, defendant denied knowing Fisher. According to defendant, the first time he saw Fisher was in court.
Defendant’s Mother’s Testimony
Defendant’s mother, Lisa Humphrey, lived with defendant, her younger son George, her daughter Michelle, and Danna Easter. In January 2002 defendant worked as a caregiver for a woman named Valerie Pitts.
Humphrey testified defendant and Fisher were not friends. She also denied she ever met with Fisher and told him to stay away from defendant. Humphrey also stated Danna Easter became bitter toward their family after she moved out in 2003.
Defendant came home around 7:30 p.m. after he had been mugged. Defendant was wounded in the lower back of his head and in his leg. Humphrey kept all of her children’s health insurance cards, and she gave defendant’s sister his card when they went to the hospital that evening.
During cross-examination, Humphrey admitted she did not know exactly when defendant returned home because she had been sleeping after receiving a pain shot. Humphrey waited a little while after defendant returned home before calling 911 at 8:59 p.m. The first time she called 911 she got a busy signal. Humphrey also stated defendant had two different wallets. One wallet was stolen during the mugging; the other had been a gift from his sister. According to Humphrey, defendant never owned a brown leather jacket.
Nautisha Marion’s Testimony
Nautisha Marion met Fisher through her ex-boyfriend, Anthony. Marion stated Anthony was related to Antoinette Cox. In January 2002 Marion often saw Fisher in the neighborhood where she lived. Fisher belonged to the G Parkway Mob gang. When he moved to Oak Park, Fisher became a member of the FAB gang.
The night of the shooting, Marion was in the Cox home when Fisher returned and started talking about what happened. A man named Ontrice Blackwell was also present. Fisher told Blackwell that Fisher would have to find someone to cover up for Blackwell. Blackwell said he did not mean to shoot anyone; that it had been an accident. Blackwell was determined not to go to jail for what happened.
Marion also heard Fisher ask Blackwell, “Why [did] you drop the gun?” Blackwell made no reply. Blackwell later asked Fisher what had happened to Fisher’s gun and if he had dropped it.
Marion heard Fisher and Blackwell discuss blaming the shooting on someone who resembled Blackwell. The duo discussed robbing and shooting someone. They then talked about blaming the person they had robbed earlier for the later shooting. Blackwell said they had gone to a place to get methamphetamine when the shooting occurred.
According to Marion, Blackwell was related to Fisher’s girlfriend and was a fellow FAB gang member. Marion described Blackwell as five feet six inches tall, weighing around 170 pounds.
Marion later told defendant’s mother about what she had overheard. Marion’s stepmother is a close friend of defendant’s mother. After the trial began, Marion told defense counsel about what she had heard.
During cross-examination, Marion conceded Blackwell is five years older than defendant. Marion also admitted failing to report the conversation between Fisher and Blackwell to authorities during the four years that defendant remained in custody.
Marion could not explain why Fisher and Blackwell would attempt to frame someone that they had shot and robbed earlier, who might well be in the hospital. A hospital visit would provide an alibi for a later shooting. Marion also acknowledged an earlier conviction for grand theft.
Testimony of Defendant’s Sisters
Defendant’s sister, Earlina Humphrey, testified defendant came to her house around 5:00 on the afternoon of the shooting. Defendant told Earlina he had been shot and hit in the head. According to Earlina, defendant had plenty of money from his job and he never carried a gun. Defendant suffered from a learning disability and could be described as “big and dumb.”
Earlina bought defendant a Dockers wallet for Christmas. She testified this was the wallet stolen when defendant was robbed.
The evening of the shooting, after defendant arrived home, Earlina never thought to call 911. Instead, her first instinct was to take defendant to her mother’s house.
Defendant’s other older sister, Michelle Humphrey, testified Fisher was not defendant’s friend. Nor did defendant ever ride a bicycle.
On the day of the shooting, Earlina called Michelle and asked her to come pick up defendant. Earlina sounded upset. Michelle estimated Earlina called around 4:00 p.m.
It was still light when Michelle arrived at Earlina’s house and light when she returned home with defendant. Michelle noticed defendant walked with a limp. They went in the back door so as not to disturb their mother. Approximately 30 minutes later, Michelle told their mother that defendant had been shot.
Michelle gave defendant a wallet after he had been mugged, and identified it as the wallet found in defendant’s room. According to Michelle, she originally gave the wallet to Danna Easter, who later agreed that Michelle should give it to defendant.
Testimony of Timothy Hayes
The evening of the shooting, Timothy Hayes and his wife Ratasha King went to the Humphrey home after work around 6:00 p.m. Hayes was waiting in the car when King returned and told him defendant had been shot.
Hayes, a trained medical assistant, rewrapped defendant’s leg with the same bandage and saw a burned hole in the back of the leg. While he wrapped, Hayes heard someone say an ambulance had already been called. As Hayes and King left about 20 minutes later, he saw the sun setting.
The couple saw officers at a nearby gas station, and Hayes told them someone had been shot. According to Hayes, the officers did nothing but state that if an ambulance had been summoned help was on the way. During cross-examination, Hayes acknowledged a carjacking conviction in 1997.
Testimony of Michael Cox
The month of the shooting, Michael Cox and his wife Antoinette Cox lived with Fisher, LaToya Washington, and Fisher’s son. Michael Cox testified that Blackwell is his wife’s great-nephew. Cox and his family had not seen Blackwell in a long time.
Fisher returned home on the night of the shooting around 10:00 or 10:30 and acted nervously. That evening, Michael Cox heard defendant and Fisher talking on the balcony of the house. Fisher asked defendant why he left him, and defendant replied: “I shot the mother fucker.” Fisher responded: “[Y]ou still didn’t have to leave me.” Michael Cox then heard defendant say: “I don’t know if I killed the mother fucker, but I shot him.”
Michael Cox saw a photograph of his son’s bicycle in the flyer describing the shooting. He persuaded Fisher to turn himself in. Cox believed if Fisher turned himself in, he could tell his side of the story.
Before Fisher turned himself in, Michael Cox and Fisher saw defendant as they drove down the street. Fisher got out and spoke with defendant. Cox overheard defendant tell Fisher not to turn himself in. Fisher said he had gotten hit in the head with a bottle and had to wrestle a man off him to get away.
Michael Cox contacted the police and told them Fisher and defendant were involved in a shooting. In return, Cox received a small reward.
Michael Cox acknowledged convictions for spousal abuse, driving under the influence, and receiving stolen property. He was on parole.
Testimony of Valerie Pitts
Valerie Pitts met defendant after she suffered a stroke. Defendant often cleaned her home. On the day of the shooting, defendant was a Pitt’s home from 9:45 a.m. to 3:30 p.m. Defendant cleaned, and then took a long nap. Pitts later learned that defendant had been shot. Days after the shooting, Pitts heard that defendant’s bike had been stolen.
During cross-examination, Pitts stated that the morning of the shooting, defendant dropped off a bicycle at her house. Pitts often saw him riding his brother’s bicycle.
Testimony of Detectives
The parties stipulated that, if called as a witness, Detective Toni Sals would testify she interviewed Cox on March 22, 2002. Cox told Sals that he and his wife arrived home the evening of the shooting around 8:30 or 9:00. Fisher was already there. Cox advised Fisher that he needed to take care of the situation because officers would find DNA on the cap where defendant was injured. The evidence would link the incident to defendant and Fisher. Cox confronted defendant at a restaurant and asked him why he had involved Fisher. Cox told defendant he should have warned Fisher that he planned on robbing someone.
Detective Watson interviewed Fisher, who stated the plan the night of the shooting was to get marijuana, smoke it, and go home. Fisher subsequently told Watson that defendant planned to play poker with some guys, but if they would not let him play defendant would rob them.
Rebuttal
A Sacramento County dispatcher testified Lisa Humphrey made a 911 call at 8:59 the evening of the shooting. Lisa Humphrey told the dispatcher her son had been shot in the leg two hours earlier. Lisa Humphrey did not request medical personnel be sent.
At 9:40 that evening, Officer Grant was at a gas station when a car pulled into the parking lot. A woman got out of a car and told Grant that someone had been shot nearby. Grant informed dispatch. At the time, Grant was drinking a soft drink. A dispatcher confirmed that Grant contacted dispatch about the shooting. Three police units were dispatched to the area. Officers and a fire truck were unable to locate the victim.
At 10:20 that evening, dispatchers were notified that defendant was at the emergency room. An officer was sent to interview defendant.
The jury convicted defendant on all counts and found all the allegations to be true. The court sentenced defendant to 25 years to life for murder, plus a 10-year consecutive determinate enhancement pursuant to section 12022.53, subdivision (b). On the attempted robbery count, the court sentenced defendant to the midterm of two years, plus a 10-year consecutive determinative enhancement pursuant to section 12022.53, subdivision (b). The court also imposed a concurrent four-year term for assault with a firearm, but stayed the term under section 654. The court ultimately sentenced defendant to an aggregate sentence of 25 years to life plus 22 years. Defendant filed a timely notice of appeal.
DISCUSSION
I. SUFFICIENCY OF THE EVIDENCE
Defendant challenges the sufficiency of the evidence identifying him as the person who shot and killed Victor. Specifically, defendant contends that because the accomplice testimony provided by Fisher was contradicted by other prosecution evidence, it was not lawfully corroborated in a way that demonstrated Fisher was telling the truth.
Defendant also argues that the only other evidence identifying defendant as the perpetrator consisted of prior inconsistent statements. Since the prosecution failed to present evidence that would give the jury a basis to reject sworn trial testimony in favor of a prior disavowed statement, a reasonable jury could not credit those prior statements.
In reviewing a challenge to the sufficiency of the evidence, we must determine from the entire record whether a reasonable jury could have found that the prosecution sustained its burden of proof beyond a reasonable doubt. We consider the evidence in the light most favorable to the judgment and presume the existence of every fact the jury could reasonably deduce from the evidence in support of the judgment. This standard of review is the same in cases in which the prosecution relies largely on circumstantial evidence. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206; People v. Mincey (1992) 2 Cal.4th 408, 432; People v. Rodriquez (1999) 20 Cal.4th 1, 11.)
If the verdict is supported by substantial evidence we defer to the jury, and we do not substitute our evaluation of a witness’s credibility for that of the jury. We affirm the conviction if the jury’s verdict is supported by substantial evidence, evidence which is reasonable, credible, and of solid value. (People v. Ochoa, supra, 6 Cal.4th at p. 1206; People v. Barnes (1986) 42 Cal.3d 284, 303-304.)
The trial court instructed the jury that Fisher was an accomplice as a matter of law. Under section 1111, “[a] conviction cannot be had upon the testimony of an accomplice unless it be corroborated by such other evidence as shall tend to connect the defendant with the commission of the offense; and the corroboration is not sufficient if it merely shows the commission of the offense or the circumstances thereof.”
Corroborating evidence “‘is sufficient if it tends to connect the defendant with the commission of the crime in such a way as may reasonably satisfy the jury that the accomplice is telling the truth.’” (People v. Lewis (2001) 26 Cal.4th 334, 370.) Both requirements must be met. The corroborative evidence must both connect the defendant with the crime and satisfy the jury of the accomplice’s veracity. (People v. MacEwing (1955) 45 Cal.2d 218.)
Independent corroborating evidence “‘“is sufficient if it does not require interpretation and direction from the testimony of the accomplice yet tends to connect the defendant with the commission of the offense in such a way as reasonably may satisfy a jury that the accomplice is telling the truth.”’” (People v. Davis (2005) 36 Cal.4th 510, 543, italics omitted.) Defendant argues the evidence offered as corroboration did not adequately connect him with the shooting in such a way as to satisfy the jury that Fisher was telling the truth. Instead, the proffered corroboration contradicted Fisher’s version of events, undermining his credibility.
Defendant contends Fisher’s testimony regarding the bike defendant rode to the crime scene is contradicted by the description of the bikes recovered by officers at the scene. In addition, defendant criticizes the “bizarre and self-contradictory story” Fisher told about obtaining the gun from Jacob. Defendant also claims DNA obtained from the leather jacket is insufficient corroborating evidence, since there is an innocent explanation for defendant’s DNA being present on the jacket. Finally, defendant disputes the prosecution’s assertion that he lied about being shot in the leg, reflecting a consciousness of guilt.
We find the evidence sufficient to connect defendant to the robbery and shooting in such a way as might reasonably satisfy the jury that defendant’s accomplice, Fisher, was telling the truth. (People v. Davis, supra, 36 Cal.4th at p. 543.)
The 911 call from defendant’s mother reporting defendant had been shot two hours previously fit the time frame of the Jiminez shooting. In addition, defendant’s injuries comport with the descriptions of witnesses to the fight. In contrast, defendant provided a series of contradictory explanations for his wounds.
Danna Easter testified she saw defendant and Fisher, both armed with guns, the day of the shooting. After returning from the hospital, defendant told Easter he went to shoot dice and “dudes like got into it.” Defendant admitted to Easter that he went to rob some people and “everything went down.” The situation involved “some Mexicans.” Defendant’s original account of being mugged differed from the version he later told his mother.
In a prior judicial proceeding, Antonio identified defendant as the armed man he struggled with on the porch during the shooting. Bernardo described the armed man as sporting braided hair. Defendant wore braids when photographed after his arrest.
Finally, the mtDNA evidence established that defendant could not be excluded as the source of three hairs found in the black and white cap left at the scene. The DNA revealed the hairs belonged to defendant or to someone with the same maternal line as defendant. The nDNA evidence showed Fisher was the major contributor for the DNA found in the black cap left on the driveway. The DNA evidence linked both defendant and Fisher to the crime scene.
Defendant disputes any of this evidence is sufficient to corroborate Fisher’s version of events. Painstakingly, defendant attempts to minimize or provide alternative explanations for each piece of evidence.
Defendant argues none of the witnesses testified the shooter was shot in the leg; therefore, defendant’s wound does not corroborate Fisher’s testimony. However, during the scuffle several shots were fired and the timing of defendant’s injury comports with the timeframe of the shooting of Victor. In addition, defendant provided inconsistent accounts of being mugged and shot.
Defendant also contends whether or not he lied about losing his wallet does not place him at the crime scene. However, the existence of the allegedly stolen wallet casts doubt upon defendant’s version of events, undermining his alibi.
Defendant challenges Danna Easter’s testimony about his incriminating statements made after the shooting. He points out she made the statements to a prosecution investigator but did not “endorse” her prior statements when she testified at trial. Defendant labels all of Easter’s comments to the investigator as “prior inconsistent statements” not worthy of being considered sufficient evidence of corroboration.
However, Easter’s more vague testimony at trial does not automatically undermine her earlier statement to the investigator. Defendant argues Easter’s statements to investigators were “insubstantial because the record afforded no basis for concluding that the prior statement’s probative value was any greater than the probative value of the witness’ testimony in court.” We disagree. The jury was entitled to determine which of Easter’s version of events, the statement to the investigator following the shooting or her testimony years later at trial, was worthy of consideration.
Defendant also labels Antonio’s identification of defendant in the previous proceeding as a prior inconsistent statement. Defendant notes that Antonio told officers responding to the scene that he was at a liquor store when the shooting took place. At the prior trial, Antonio testified he was on the porch and identified defendant in court.
According to defendant, Antonio acknowledged he assumed the person at the counsel table at the prior trial was the person the police believed was the shooter. However, Antonio also testified he recognized defendant in court as the person on the porch the night of the shooting. Again, regardless of any purported inconsistencies in Antonio’s testimony, the jury could determine Antonio’s identification of defendant placed him at the crime scene and bolstered Fisher’s version of the shooting.
Defendant also disputes the DNA evidence connects him to the crime in a manner that would show Fisher is telling the truth. Defendant argues he did not wear the jacket at the crime scene, Fisher did. Defendant’s DNA in the jacket is explained by the fact that Thacker obtained the jacket from defendant. Again, defendant provided an alternative scenario to contradict Fisher’s version of events. This alternative scenario does not automatically render invalid or unworthy of consideration any evidence to the contrary, evidence that links defendant, via his DNA, to the crime scene.
Defendant argues the case is “‘so fraught with uncertainty as to preclude a confident determination of guilt beyond a reasonable doubt.’” (People v. Reyes (1974) 12 Cal.3d 486, 500.) We are not convinced.
Evidence corroborating an accomplice’s testimony must tend to connect the defendant with the crime in such a way as may reasonably satisfy the jury that the accomplice is telling the truth. (People v. Lewis, supra, 26 Cal.4th at p. 370.) Ample, credible evidence linked defendant to the shooting of Victor. Defendant’s injuries, his incriminating comments to Easter, his varying accounts of being mugged, the DNA evidence linking defendant to the jacket found at the crime scene, and the identifications by Antonio and Bernardo all provide evidence sufficient to corroborate Fisher’s accomplice testimony.
II. mtDNA Evidence
Defendant separately challenges the mtDNA profile evidence introduced at trial. Defendant contends the prosecution failed to satisfy the foundational requirements for the admission of scientific evidence under Kelly, supra, 17 Cal.3d 24 because there is no generally accepted means to calculate population frequencies. Without a population frequency, defendant argues, mtDNA profile evidence has no evidentiary value and thus the trial court erred in admitting the evidence. The error was prejudicial given the weak corroboration of Fisher’s accomplice testimony.
Background
After defendant’s arrest, nDNA tests were conducted on the brown leather jacket and black and white cap found at the crime scene. Because so little DNA was found on the jacket, the test established only that defendant could not be excluded as a donor of the DNA. However, the crime lab found three hairs similar in physical and microscopic features to the reference hair obtained from defendant. Following defendant’s first trial, these hairs were sent to the Serological Research Institute (SERI), along with hair samples from defendant and Fisher for mtDNA testing. The SERI testing resulted in a match to defendant’s mtDNA profile but not a match to Fisher’s mtDNA profile. SERI compared defendant’s mtDNA profile to the 4, 839 profiles in the FBI’s mtDNA database but found no match.
Before the commencement of the retrial, the prosecution filed a motion to admit the mtDNA evidence pursuant to Kelly, supra, 17 Cal.3d 24. The motion identified two issues to be determined: whether the science underlying the testing is generally accepted as reliable, and whether the statistics generated by any matches in the testing are generally accepted as reliable. The court took judicial notice of five appendices attached to the motion, which included scientific articles, court decisions, and the testimony of an mtDNA expert, Dr. Mitchell Holland, in a San Diego Superior Court case.
The first appendix contains a listing of 3, 245 scientific articles on mtDNA testing. The second appendix contains a chapter on mtDNA analysis from John M. Butler (Butler, Forensic DNA Typing (2d ed. 2005) pp. 241-298). The third contains California trial court opinions upholding the admission of mtDNA evidence. In the fourth appendix are opinions from other states upholding mtDNA evidence. Finally, the fifth appendix consists of testimony of Dr. Holland in the case of People v. Johnson (Super. Ct., San Diego County, 2001, No. 155728).
At the hearing on the motion, defendant did not object to the underlying science of mtDNA testing but challenged the general acceptance and reliability of the statistical interpretation of mtDNA evidence. Counsel argued there was no showing of the reliability of the methodology used to compute statistics and challenged the reliability of the FBI database because it is not limited to populations within a relevant geographic area. He insisted that any statistical conclusions drawn from the mtDNA evidence were inadmissible.
The Trial Court’s Ruling
In a 15-page opinion, which reviewed the process of both nDNA and mtDNA analysis in detail, the trial court granted the prosecution’s request to present mtDNA evidence at trial. The court noted that DNA sequence analysis has come into wide acceptance. DNA testing for forensic purposes is widely used, and numerous appellate decisions have confirmed its reliability and acceptance in the scientific community.
In mtDNA analysis, the sequence of the known and unknown DNA samples are lined up and compared. If there is a common base at every position, the person cannot be excluded as a contributor of the sample. A statistical analysis is performed to determine the frequency of the sequence in the general population. A database is used to determine the estimated frequency of the particular profile in the defined group, and an upper bound frequency is used to estimate how often a particular frequency in the population at large is expected to occur.
The trial court found the mtDNA analysis passed the first prong of the Kelly test, requiring a showing that the new technique must have gained sufficient general acceptance in the relevant scientific community. In support of this conclusion, the court noted the similarities between mtDNA testing and nDNA testing. The trial court observed that obtaining both nDNA and mtDNA involve the same four-step process: extraction, amplification, sequencing, and comparison of the sequenced sample. The laboratory analysis for mtDNA mirrors the analysis for nDNA, except for the resulting comparison.
The court also referenced the numerous decisions by both federal and state courts accepting mtDNA testing as reliable. It cited the testimony of Dr. Holland in People v. (Super. Ct., San Diego County, 2001, No. 155728), noting that “[mt]DNA testing is reliable and that it is generally accepted in the scientific community for use on forensic evidence.”
The court found that the FBI Forensic mtDNA database on which the analysis is based contains 4, 839 profiles, and that other courts have admitted mtDNA results based upon comparisons with much smaller databases. The court also noted: “The calculation of the statistical probabilities of a match is an integral part of the forensic process” and the FBI Forensic mtDNA database is critical for the calculation of the statistical probabilities of a match.
The court cited State v. Hammons (2002) 2001 Del. Super. Lexis 545 [2002 WL 484645] (Hammons) for the proposition that while there is some disagreement in the scientific community as to the statistical analysis of mtDNA evidence, there is a consensus that the chances of such a match are not greater than some very small fraction. The court concluded that: “The method of determining population frequency appears to be based upon well accepted scientific and mathematical principles and has been accepted by numerous courts. The defendant’s concerns regarding the statistical significance of a match or exclusion is more appropriately addressed to the weight this evidence should be given and not its admissibility.”
Hammons is an unpublished opinion of the Superior Court of Delaware. The trial court took judicial notice of the opinion.
The court also noted that two of the hairs recovered from the crime scene shared the same mtDNA profile as defendant’s sample. When compared against the 4, 839 mtDNA profiles in the FBI Forensic mtDNA database, there was no other match.
The court reasoned: “Based upon this comparison, an expert could render an opinion as to how much of the population group could be excluded as the source of the hair. [Citation.] Without this additional analysis the jury would have no ability to understand the value or degree of significance of the match. Although this fact should not be taken to mean absolute identification, it is nonetheless probative. [Fn. omitted.] The defendant’s challenge based upon the statistical analysis and other concerns expressed by the defendant are appropriate areas of inquiry at trial but do not affect the admissibility of this evidence.”
Kelly and the Standard of Review
“The ‘admissibility of expert testimony based on “a new scientific technique” requires proof of its reliability—i.e., that the technique is “‘sufficiently established to have gained general acceptance in the particular field to which it belongs’” [citation].’ (People v. Venegas (1998) 18 Cal.4th 47, 76..., quoting People v. Kelly, supra, 17 Cal.3d at p. 30.)” (People v. Nelson (2008) 43 Cal.4th 1242, 1257.) To be reliable, a scientific technique must be sufficiently established to have gained general acceptance in the particular field in which it belongs. The test for admissibility considers the fundamental validity of a new scientific technology. (People v. Reilly (1987) 196 Cal.App.3d 1127, 1135; People v. Cooper (1991) 53 Cal.3d 771, 812-813.)
The proponent of the evidence bears the burden of making the necessary showing of reliability by a preponderance of the evidence. On appeal, “general acceptance” presents a mixed question of law and fact that we review de novo. We give deference to the trial court’s determination of any supportable findings of fact or credibility. (People v. Shirley (1982) 31 Cal.3d 18, 54; People v. James (1998) 62 Cal.App.4th 244, 262; People v. Reilly, supra, 196 Cal.App.3d at p. 1134.)
The parties stress two contrasting strains in the analysis of the admissibility of new scientific techniques. Defendant stresses the need for judicial caution since there is a danger of lay jurors giving considerable weight to evidence labeled as “science” presented by experts with weighty credentials. The People note that the validity of a scientific procedure need not be reevaluated each time it reappears in a case. As the People point out, “appellate endorsement of a [scientific technique] ends the need for case-by-case adjudication” at the trial court level. (People v. Brown (1985) 40 Cal.3d 512, 530, overruled on other grounds.) The People also stress that “general acceptance” does not require unanimity or even majority support of the technique by the scientific community.
Discussion
DNA evidence consists of two distinct elements: the match evidence that the defendant could be the perpetrator, and the statistical evidence that a certain number of people in the population could be the perpetrator. The statistical evidence gives the match evidence its weight. (People v. Pizarro (2003) 110 Cal.App.4th, 530, 541-542, overruled on other grounds.) As earlier noted, defendant does not object to the underlying science of mtDNA testing but challenges the general acceptance and reliability of the statistical interpretation of mtDNA evidence. Defendant contends the prosecution could not prove a generally accepted method for generating a statistical analysis for mtDNA match evidence, rendering the mtDNA profile match evidence inadmissible.
Defendant mounts a two-pronged attack on the court’s admission of mtDNA evidence. First, defendant argues the prosecution failed to meet its burden of proving that the use of the FBI database to extrapolate population frequencies was a generally accepted scientific technique. Second, defendant asserts the trial court erred in overruling defendant’s specific Kelly-Frye objection to Dr. Fedor’s trial testimony, which utilized a statistical formula to generate a population frequency. Given the scope of defendant’s argument, we need not review in great detail the complexities of DNA and laboratory testing procedures. However, a brief review of the underlying science is helpful in understanding the statistical question.
An organism’s hereditary information is encoded in deoxyribonucleic acid (DNA). DNA can be found in two locations within a human cell: the nucleus and in a smaller structure called the mitochondrion. DNA found in the nucleus of the cell is called nuclear DNA (nDNA) and is housed in chromosomes. The nucleus contains 23 pairs of chromosomes; one set of 23 chromosomes is inherited from the mother and another set of 23 chromosomes from the father. The DNA found in the mitochondrion is called mitochondrial DNA (mtDNA) and consists of a single circular strand. The mtDNA is inherited only from the mother.
DNA consists of two strands that resemble a twisted ladder. The sides of the ladder are made up of deoxyribose and phosphate. The rungs of the ladder, attached to each side, are made up of four basic building blocks called “bases.” These bases are referred to by the letters A, T, G, and C, corresponding to the first letter of the names of their four chemical components. Two pairs of bases form each rung of the DNA ladder and are referred to as “base pairs.” The length of a segment of DNA can be measured by the number of rungs (base pairs) in the segment. The precise location (locus) on a strand of DNA can be represented by the base number.
Adenine (A), Cytosine (C), Guanine (G), and Thymine (T).
In nDNA the sequence, the order in which the bases are arranged along the strands of DNA, can serve as the genetic code that controls the production of proteins that determine the properties of the body’s cells. The “coding” regions of DNA contain genetic instructions. There is very little variation between individuals in these DNA regions. However, variations are especially pronounced in other, “noncoding” regions of the DNA. Forensic DNA analysis focuses on those “hypervariable” regions that are known to be polymorphic, i.e., variable from person to person. In these regions sequences of base pairs are frequently repeated. The precise sequence and the number of times the sequence is repeated at particular locations (loci) on the DNA vary greatly between individuals.
The sequence of bases (A, G, C, or T) is known as a motif. The successive repeats of base pairs is called an “allele.”
The object of analysis is to ascertain the number of such repeated sequences at specified loci in the sample obtained from defendant and compare it with the repeats found at the same loci in the sample obtained from the crime. Techniques have been developed to accomplish this comparison. If the same number of identical repeats appear at the same loci of each sample, then there is a match. A statistical analysis is then applied to determine the likelihood that such a match would randomly occur.
There are two types of hypervariable regions in nDNA. The first to be identified, “Variable Number Tandem Repeats” (VNTR) loci, had sequences ranging in length from 15 to 35 bases. Later, “Short Tandem Repeats” (STR) loci—with repeat sequences of only three or four bases in length—were identified.
As explained by the Supreme Court: “When a suspect’s sample is compared to the crime scene evidence, and a match is found, ‘the DNA profile of the matched samples is compared to the DNA profiles of other available DNA samples in a relevant population database or databases in order to determine the statistical probability of finding the matched DNA profile in a person selected at random from the population or populations to which the perpetrator of the crime might have belonged.’ (People v. Soto (1999) 21 Cal.4th 512, 518....) ‘Experts calculate the odds or percentages—usually stated as one in some number—that a random person from the relevant population would have a similar match.’ (People v. Wilson [(2006) 38 Cal.4th 1237, ] 1239.)
“Experts use a statistical method called the ‘product rule’ to calculate the rarity of the sample in the relevant population. We explained this method in detail in People v. Soto, supra, 21 Cal.4th at pages 524-525. As the Court of Appeal summarized it, ‘The frequency with which each measured allele appears in the relevant population is estimated through the use of population databases.... The frequencies at each tested locus are multiplied together to generate a probability statistic reflecting the overall frequency of the complete multilocus profile.... The result reflects the frequency with which the complete profile is expected to appear in the population.... The result is sometimes expressed as the probability that the DNA of a person selected at random from the relevant population would match the evidentiary sample at all tested loci....’ (Citations omitted.)” (People v. Nelson , supra, 43 Cal.4th at pp. 1258-1259.)
The term allele is used in the forensic DNA setting to refer to the successive repeats of base pairs.
This same basic technique is used in the analysis of mtDNA. However, there are differences based on the nature of mtDNA compared to nDNA. Nuclear DNA consists of approximately three billion base pairs and many loci that can be compared to establish a match between samples. The fact that nDNA is inherited from the paternal and maternal side of the family contributes to the uniqueness of an individual’s nDNA profile. The multiplicity of loci that can serve as “markers” for comparison purposes permits probability measurements that essentially rule out a random match. mtDNA, on the other hand, is only about 16, 500 base pairs in length. There are two hypervariable regions used for forensic testing, each with only a single marker of approximately 300 base pairs. These regions are called Hypervariable Region 1 (HV1) and Hypervariable Region 2 (HV2). As a result, the task of determining whether two mtDNA samples match is less complicated but the probability of a random match is much higher. The probability statistics based on nDNA are much more definitive than for mtDNA.
The determination of whether two mtDNA samples match is a simple matter of reading and comparing the base sequences within the hypervariable regions of the two samples to determine whether they share a common base at every position along the 610 base pairs in HV1 and HV2. In the present case, the expert focused on specific locations within the two hypervariable regions of mtDNA extracted from the three sample hairs found at the crime scene and compared the base sequences at those locations with the base sequences at the same locations on samples taken from defendant and Fisher. The sequences on defendant’s mtDNA matched those on the crime scene samples; Fisher’s did not.
A match between two mtDNA samples is not definitive. It simply means that the suspect’s mtDNA sample cannot be excluded as originating from the same maternal lineage as the source of the mtDNA sample found at the crime scene. Identity cannot be established definitively because all individuals having the same maternal lineage possess identical mtDNA.
Here, defendant does not challenge the science that allowed the experts to conclude the mtDNA from hair samples obtained at the crime scene matched the hair samples obtained from defendant. Rather, defendant challenges the results of the next step of mtDNA analysis--the comparison of the sequence in the mtDNA sample to the sequences contained in the FBI’s database of mtDNA sequences and the conclusions drawn from that comparison regarding the probability of a given sequence occurring in the population.
Use of FBI Database
The trial court determined that the prosecution’s expert could use the FBI’s Forensic Mitochondrial DNA Database to “render an opinion as to how much of a population group could be excluded as the source of the hair.” Defendant faults this determination, arguing the prosecution failed to demonstrate, by means of qualified and disinterested experts, that the technique is generally accepted as reliable in the relevant scientific community.
Defendant points to the testimony of Dr. Holland, who stated the counting method used by the FBI database does not generate a population frequency. Holland stated: “In general, when we are reporting out the data, what is generally accepted is to report out the number of observations that you see in a database. That’s what the FBI does. That’s what we do. That’s what the other laboratories that do mitochondrial DNA do. So it’s a generally-accepted method of looking at the rarity of the sequence in the population.” Holland further stated that: “[T]here’s no requirement to report a match probability or frequency estimate. Again, the consensus is to report out the number of observations in the database, which is not a match probability or frequency estimate.”
Defendant contends, based on Holland’s testimony, “one must conclude that use of the FBI mtDNA database to generate a population frequency is not a technique which is generally accepted as reliable in the relevant scientific community. [¶]... [¶] According to the scientific consensus, the examiner should only report the number of matches in the database, and should not report that number as a population frequency.” We disagree.
At trial Dr. Fedor testified that either defendant or someone maternally related to defendant was the source of the three hairs tested. In order to place the evidence in perspective, Fedor also explained how rare the profile was. He pointed out that in order to determine the rarity of an mtDNA sequence, scientists have compiled a database of known DNA sequences from random samples of volunteers. Scientists then determine how often a particular sequence appears. If there is a match, the matching sequence is compared to profiles in the database to determine whether the sequence appears in the database.
Fedor explained that because mtDNA is maternally inherited, all matrilineal decedents will share the same mtDNA. Because of this, the traditional product rule, used to determine random match probability in nDNA analysis, cannot be used in mtDNA cases.
As noted earlier, under the product rule, a determination is made of how rare or common a genetic type at a particular genetic location is by reference to a database. If multiple genetic locations are involved, the frequency of each is multiplied with the frequency of others, creating a final frequency that is the product of all the others. (People v. Soto, supra, 21 Cal.4th at pp. 523-525.)
According to Fedor, the counting method is used instead in mtDNA cases. This method looks at a database and reports how many times a given genetic profile was observed in the database. A 95 percent confidence limit is then applied to this result. If the matching sequence is not found in the database, an exclusionary rate is calculated to say that a certain percentage of the population may be excluded as potential donors of the unknown sample.
Fedor compared defendant’s mtDNA sequence with the 4, 839 different mtDNA sequences contained in the FBI’s Forensic Mitochondrial DNA database. Fedor determined that none of the samples in the database had the same mtDNA sequence as either the hairs that were submitted or defendant’s hair samples.
The trial court upheld the use of the FBI database, which was significantly larger than that upheld by the Connecticut Supreme Court in State v. Pappas (2001) 776 A.2d 1091 (Pappas). Defendant argues Pappas cannot be relied upon since the Pappas court did not employ the Kelly-Frye standard in upholding the database in question.
Defendant is correct that Pappas employed the test set forth in Daubert v. Merrill Dow Pharmaceutical, supra, 509 U.S. 579 [125 L.Ed.2d 469], which requires that scientific evidence to be admissible must be derived by scientific method, be supported by appropriate validation, and assist the trier of fact. (Id. at pp. 589-590 [125 L.Ed. at pp. 480-481].) However, the Pappas court also found that the procedures used to analyze mtDNA are “generally accepted in the community.” (Pappas, supra, 776 A.2d at p. 1105.)
In Pappas, the mtDNA profile was not observed in a database of 1, 219 Caucasians, coupled with a confidence level of 95 percent, which permitted the expert to testify that about 99.7 percent of the Caucasian population could be excluded as potential donors of the hair. (Pappas, supra, 776 A.2d at pp. 1111-1112.)
The Pappas court considered questions about the small size of the database and concluded that, although the jury should be made aware of these issues, they went to the weight of the evidence and not its admissibility. (Pappas, supra, 776 A.2d at p. 1105.) The court found the statistical methods employed were scientifically valid and helpful to the jury. (Ibid.) Therefore, the trial court’s reliance on Pappas was neither ill-founded nor misplaced.
In addition, Dr. Holland also testified in a 2001 case that mtDNA technology has been used since 1991. In his prior testimony, Dr. Holland explained that mtDNA testing is generally accepted in the scientific community based on 10 years of experience. Dr. Holland was not aware of any publications demonstrating a lack of general acceptance of the use of mtDNA testing on forensic specimens.
People v. Johnson (Super. Ct. San Diego County, 2001, No. 155728.)
As the People note, numerous courts and jurisdictions have found mtDNA evidence to be generally accepted in the scientific community. Given Dr. Holland’s testimony and the widespread acceptance of mtDNA analysis in Pappas and many other courts, the trial court’s finding that the population frequencies generated by counting matches in the FBI database is based upon well-accepted scientific principles is supported by the evidence.
Dr. Fedor’s Use of Statistical Formula
Defendant also contends the trial court erred by overruling defendant’s Kelly-Frye objection to Dr. Fedor’s trial testimony utilizing a specific statistical formula to generate a population frequency based on a 95 percent confidence limit. The People argue Dr. Fedor’s calculation is based on a scientific technique with long acceptance in the scientific community.
At trial Dr. Fedor testified that 95.5 percent of the population could be excluded as the source of the three hairs tested. He also explained the term “confidence limit”: “[a] statistic that tells you how sure you can be that there are 15 in every 4839 people who could be the source of the hair.... [I]t’s essentially a way of describing our confidence in whether the number is 15, 18, or 20. [¶] And that’s why statisticians are able to construct a limit. [¶]... [¶] So the statisticians have come up with a way to hypothesize sampling the real world population over and over again in determining how likely is this 15 answer, 15 people as potential candidates, how likely is that to be repeated in each of population samples that we would take if we were to do it over and over again. [¶] So there’s a mathematical construction of what’s called a limit.”
Defense counsel brought a Kelly-Frye objection, which the trial court overruled. Dr. Fedor testified as to the limit he determined applicable in the present case: “The 95 percent limit for the answer of 15 in 4800, is about 50 percent either way. That means if we were to sample 4800 million people every day for three months, we would say 95 percent of the time we expect to see between seven and 22 people who could be responsible for this hair. [¶] That’s fifty percent either side of 15. That is give or take half of 15 on the low side, add half of 15 on the high side. [¶] We are 95 percent [sure] that the real population value for the frequency of the hair mitochondrial sequence is between seven and 22, not higher than 22. [¶] Q: And utilizing these numbers are you able to come up with a statistic of about what portion of the population could be excluded as potential donors of the hairs in this case? [¶] A: Yes. That’s very simple arithmetic.... [¶] 15 out of 4839, is approximately.3 percent. [¶] If you take 50 percent either side of that, you would say at most.45 percent of the population could be the source of the hairs. And what that means is that 95.5 percent, if I have that right, of the population is excluded as the source of the hairs.”
Defendant contends the dubious reliability of frequency estimates associated with mtDNA renders it susceptible to a Kelly-Frye challenge. In support, defendant cites at length to a law review article that questions whether the FBI database accurately represents the geographic distribution of African-Americans in the United States. (F. Kaestle, et al., Database Limitations on the Evidentiary Value of Forensic Mitochondrial DNA Evidence (2006) 43 Am. Crim. L.Rev., pp. 53, 65-84.)
However, notwithstanding this critique, several courts have found the same population frequency formula accepted by the scientific community. In Magaletti v. State (Fla. App. 2003) 847 So.2d 523, the court found the 95 percent confidence calculation was not new science, but was generally accepted in the scientific community. A DNA expert applied the counting method to report the results of mtDNA analysis, and also applied a 95 percent confidence interval based on the number of times a sequence occurred in the database. The court found the expert established the counting method was the only method of reporting used by analysts in the United States, and “[h]aving established that the counting method is used exclusively in this country, the State amply satisfied its burden of proving general acceptance by a preponderance of the evidence.” (Id. at p. 528; see also Lewis v. State (Ala. Ct. App. 2003) 889 So.2d 623, 673.)
Given Dr. Fedor’s testimony about the general acceptance of the statistical formula he used to generate a confidence limit and the fact that other courts have found the formula generally accepted, the court did not err in denying defendant’s Kelly-Frye objection.
III. IMPEACHMENT OF DESWAN FISHER
Defendant contends the trial court erred in refusing to allow the impeachment of DeSwan Fisher with juvenile conduct involving burglary, grand theft, and receiving stolen property. This error amounted to a violation of defendant’s constitutional right of confrontation as well as his right to present a complete defense.
Background
During Fisher’s testimony, defense counsel requested permission to impeach Fisher with juvenile offenses. The court indicated that impeachment would be considered for specific conduct, but the mere fact of a juvenile adjudication was “not going to come in.” Defense counsel subsequently requested permission to impeach Fisher with a 1996 grand theft, a 1998 burglary, and a 1998 grand theft. The prosecution objected. The court stated that although adjudications themselves provide some information, they were not sufficient to resolve the issue.
In a later hearing outside the jury’s presence, Fisher’s rap sheet was produced as an exhibit. Defense counsel requested permission to impeach Fisher for the offenses listed, among them burglary, receiving stolen property, grand theft, and false identification. The trial court stated, “there would have to be some understanding in terms of what juvenile convictions he has and doesn’t have before I resolve this issue.” The prosecution stated that the police reports were provided to the defense, but juvenile court records were not provided because they were confidential.
The trial court concluded the juvenile adjudications were not admissible under Evidence Code section 788. The court also stated that, in order to impeach Fisher with the prior crimes, the defense “would have to make a better showing. I have no idea what it is that you want to introduce.”
Defense counsel asked whether he could obtain additional discovery, noting the offenses were prosecuted by the district attorney, who would have access to the files. However, the court indicated the prosecution had no access to the files because of a firewall in the district attorney’s office.
Defense counsel then asked permission to question Fisher concerning the juvenile offenses: “Would it be permitted, your Honor, to ask the witness if he had admitted to engaging in the crime of burglary on such and such a date as it was indicated in the CLETS record that there was a charge and dispo to juvenile hall?” The court responded that it would require a further showing. Defense counsel stated: “I just don’t know how I could make a further showing without getting into the records of the files, or asking the witness himself. I have no other source of information... on whether or not it was an admission or not.” The Court replied: “Well, as I indicated, the admission or the disposition adjudication is only part of the equation. I think Sanchez and Lee are controlling.”
People v. Sanchez (1985) 170 Cal.App.3d 216 and People v. Lee (1994) 28 Cal.App.4th 1724.)
Discussion
Defendant sought to impeach Fisher with juvenile conduct involving burglary, grand theft, and receiving stolen property. He argues that the trial court erred in requiring defense counsel to first prove Fisher’s prior conduct before he could be permitted to ask Fisher about it on cross-examination. According to defendant, all that was required from counsel was a good faith belief that the act or conduct about which he wished to inquire actually took place.
The People concede a witness’s rap sheet, while inadmissible hearsay, provides a good faith basis for an attorney to question the witness about the witness’s prior convictions. However, the People argue that, given the record before it, the trial court properly declined defendant’s request to cross-examine Fisher about the conduct underlying his juvenile adjudications.
Defendant disagrees, noting defense counsel did not seek to impeach Fisher with the fact of the prior adjudications, but with whether he committed the underlying conduct: “Because juvenile adjudications are inadmissible it should not matter whether the record clearly shows the outcome of those adjudications.”
We agree. All that is required to impeach a witness is a good faith basis for the examiner to believe that the witness engaged in conduct involving moral turpitude. The examiner is not required to prove an actual adjudication because the adjudication itself is not admissible. (People v. Steele (2000) 83 Cal.App.4th 212, 223; People v. Sanchez, supra, 170 Cal.App.3d at p. 218.) An authenticated rap sheet may provide a sufficient basis to support a good faith belief. (People v. Siripongs (1988) 45 Cal.3d 548, 578.) Having a good faith basis to inquire into the conduct, defendant could question Fisher about the conduct.
However, we find the error committed by the court in not allowing cross-examination was harmless. “‘The correct inquiry is whether, assuming that the damaging potential of the cross-examination were fully realized, a reviewing court might nonetheless say that the error was harmless beyond a reasonable doubt. Whether such an error is harmless in a particular case depends upon a host of factors, all readily accessible to reviewing courts. These factors include the importance of the witnesses’ testimony in the prosecution’s case, whether the testimony was cumulative, the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points, the extent of cross-examination otherwise permitted, and, of course, the overall strength of the prosecution’s case.’” (People v. Greenberger (1997) 58 Cal.App.4th 298, 350.)
Defense counsel extensively cross-examined Fisher regarding the deal he had made to avoid life in prison and Fisher’s incentive to lie to obtain the deal. Fisher also admitted he had changed his statements to police several times. Defense counsel also elicited testimony by Fisher concerning his drug dealing, and the fact that he lied to police to avoid being charged with possession of marijuana for sale. Fisher also acknowledged animosity toward defendant’s family stemming from defendant’s mother evicting members of Fisher’s girlfriend’s family.
When questioned about the day of the murder, Fisher admitted smoking a lot of marijuana, drinking, and giving marijuana to a younger person. Fisher acknowledged being a member of the G Parkway Mile gang, and testified on cross-examination that he needed to carry a gun in the Oak Park area.
This testimony drew a portrait of Fisher as a drug-dealing, armed gang member, not a trustworthy law-abiding citizen. In addition, defense counsel extensively impeached Fisher with his inconsistent statements, motives to lie, and incentive to frame defendant to save his own skin.
Defendant disagrees with this analysis: “The problem with the list of factors that respondent cites as detracting from Fisher’s credibility is that none of them is as damaging to credibility as would be evidence of a crime of great moral turpitude, such as burglary or grand theft.” The problem with defendant’s analysis is that it overlooks the cumulative impact of the factors undermining Fisher’s credibility.
While any one factor might not be sufficiently damaging, the accumulation of Fisher’s agreeing to the prosecution’s deal, changing statements to police, admitted drug use, ill-will towards defendant’s family, and gang membership cast significant aspersions on Fisher’s credibility. Under these circumstances we find the court’s error harmless beyond a reasonable doubt.
Since we find the trial court’s failure to allow impeachment of Fisher for prior juvenile crimes harmless beyond a reasonable doubt, we do not address defendant’s argument that the trial court erred in not permitting further discovery of Fisher’s juvenile record.
IV. IMPEACHMENT OF DANNA EASTER
Defendant argues the trial court erred in not allowing him to impeach Danna Easter with a misdemeanor conviction for prostitution.
The trial court denied defendant’s request based on Evidence Code section 352: “With respect to the 647(b) [prostitution], the Court has considered that conviction. I do not find that conviction is admissible for the purposes of impeachment. The probative value would have marginal value in light of the potential prejudicial impact of that.” The court did allow impeachment of Easter with a misdemeanor conviction for assault. The trial court also ruled the defense could inquire as to any favors Easter had received in exchange for her testimony.
Past criminal conduct that has some bearing on the veracity of a witness is admissible in a criminal proceeding, including misdemeanor convictions involving moral turpitude. However, even admissible evidence of convictions is subject to the court’s exercise of its discretion under Evidence Code section 352. (People v. Wheeler (1992) 4 Cal.4th 284, 295.)
We find an abuse of discretion only if, after considering all the circumstances, it appears the trial court’s Evidence Code section 352 determination exceeds the bounds of reason. The trial court’s determination of the relevance of a prior conviction should be based on such factors as the conduct’s probative value for honesty, the remoteness of the prior conviction, and the effect on the defendant who does not testify out of fear of being prejudiced by impeachment of prior convictions. (People v. Green (1995) 34 Cal.App.4th 165, 182-183.)
Misdemeanor conduct of prostitution represents a crime of moral turpitude. (People v. Alvarez (1996) 14 Cal.4th 155, 201, fn. 11.) However, the trial court acted within its discretion in denying defendant’s request to impeach Easter with her prostitution conviction. The jury was already aware that Easter had spoken to police after being arrested, and that she was on probation for an assault with a deadly weapon committed in 2003. The impact of the prostitution would add little to the jury’s impression of Easter’s credibility. The court did not err in terming the impact of the prostitution conviction as “marginal” and excluding it pursuant to Evidence Code section 352.
V. RAFAEL’S PRIOR STATEMENT
Defendant claims the trial court erred in admitting Rafael’s prior statement to police the night of the murder that defendant told the men in English to “give me the money.” Defendant argues the statement was inadmissible because there was no reasonable basis for concluding that his lack of recollection at trial was evasive and untruthful, and therefore the earlier statement was not a prior inconsistent statement. Defendant also argues Rafael lacked sufficient understanding of English to accurately relate what was said by the intruder.
Background
During direct examination, Rafael, with the assistance of an interpreter, testified regarding the night of the murder. “Q: What did you understand [the intruder] to say in English when he came up to the porch? [¶] A: That he wanted to play cards. [¶] Q: You understood enough of what he was saying to feel comfortable that that’s what he said in English? [¶] A: I’m not certain, but the little bit that I understood, that’s what I think he said.”
Rafael also testified that Antonio told the intruder, in English, to leave. The intruder and Antonio continued to talk, but Rafael could not understand what they were saying. The prosecution then asked: “Now the first intruder, did you ever hear him at any time say the word ‘money?’” The defense objected, and the court overruled the objection. Rafael then stated he did not remember. The prosecution asked if Rafael remembered speaking with a Spanish-speaking detective a week after the shooting. The defense objected, and the court again overruled the objection.
The prosecution then asked: “Do you remember telling that detective in January of 2002, quote....” The defense objected, stating: “I’ll interpose a Miranda objection at this point. Miranda because he’s introducing a co-defendant’s statement, not that of the defendant, which cannot be confronted.” The court overruled the objection. The prosecution asked Rafael: “Do you recall telling the detective, the Spanish-speaking detective, in January of 2002, quote, I heard... suspect one, say, quote, give me the money, end quote? [¶] A: I don’t remember, no. [¶] Q: Do you have any recollection as you sit here today of that first intruder saying anything about the word ‘money’ when he was up there on the porch?” Defense counsel objected and the court overruled the objection.
The prosecution continued: “A: What is your recollection in that regard?” Defense counsel objected and the court overruled the objection. Rafael answered: “The little bit that I understood in English -- [¶]... [¶] He said he wanted to play, and then he said he wanted the money. [¶] Q: Now, did you understand enough of the English that he was saying to feel comfortable that that’s what he said? [¶] A: In truth, I’m not really certain, no.” Defense counsel objected and moved to strike. The court noted both.
During redirect examination, the prosecution read from Rafael’s testimony at the prior trial, in which Rafael stated the intruder was asked to leave three times. The intruder said he wanted the money. The prosecution asked Rafael: “Do you remember asking those questions and giving those answers at a prior judicial proceeding in May 2004? [¶] A: I don’t remember, not exactly.”
During cross-examination defense counsel asked Rafael if he recalled testifying in the prior proceeding that the intruder wanted money. Rafael answered: “I remember I testified, but I don’t remember if I said that exactly. It’s been more than four years or three years.” Defense counsel asked: “Do you remember if this man on the porch said that he had money to play? [¶] A: He said something about money. He said money. I don’t know exactly what. [¶] Q: Okay. So the word that you are... familiar with is the word money? [¶] A: My English is not very perfect. But he said something like playing and [] money.”
Defense counsel later objected to evidence of what Rafael heard the intruder say in English because Rafael lacked sufficient competence to understand the English language. The court overruled the objection.
Detective Vigon testified as to Rafael’s statement made at the scene. Defense counsel objected on hearsay grounds. The court overruled the objection because the statement was offered as either a prior consistent or inconsistent statement.
The prosecution asked Detective Vigon: “What were the English words that this first suspect said that Mr. Rafael Garcia related to you?” The court overruled defense counsel’s objections and Vigon answered: “He stated that the first suspect said, give me the money. [¶] Q: And he said that in English? [¶] A: Yes.”
At trial, Rafael confirmed he went by the name Rafael Gonzalez, not Garcia.
Discussion
Defendant argues Rafael did not disclaim the prior statement made to Vigon, but instead testified he could no longer recall making those statements. A failure to recall a prior statement is not inconsistent with the prior statement, and therefore the prior statement was inadmissible under the prior inconsistent statement exception to the hearsay rule.
Evidence Code section 1235 provides that evidence of a statement made by a witness is not inadmissible hearsay if the statement is inconsistent with the witness’s testimony at the hearing and is offered in compliance with Evidence Code section 770. Prior inconsistent statements may be used not only to impeach a witness’s credibility but also to prove the truth of the matter asserted in the prior statement. (People v. Green (1971) 3 Cal.3d 981, 985.)
Generally, a witness’s trial testimony that the witness does not remember an event is not inconsistent with a prior statement describing the event. However, if the record reasonably discloses that the witness’s failure to remember is evasive, feigned, or untruthful, the testimony is deemed inconsistent and admissible under Evidence Code section 1235. If the record discloses that a witness’s responses, even if partially couched as uncertain recollection, are in fact inconsistent with prior statements, the prior statements are admissible because, viewed as a whole, the trial testimony is inconsistent “in effect.” (People v. Fierro (1991) 1 Cal.4th 173, 221-222; People v. Johnson (1992) 3 Cal.4th 1183, 1219-1220.)
Defendant asserts that since Rafael could not recall making his earlier statements to Detective Vigon, the trial court erred in admitting his statement to the detective as a prior inconsistent statement. The facts are not quite so clear-cut.
Defendant characterizes Rafael’s trial testimony as “nothing more than faded memory.” However, at trial Rafael made numerous, often contradictory, statements regarding what he heard and saw the night of the shooting.
Initially, Rafael testified he could not understand everything that Antonio and the intruder were saying because it was in English. When the prosecutor asked what happened after Antonio asked the intruder to leave, Rafael responded: “I don’t know what they were saying. It was in English.” This statement directly contradicted Rafael’s statement to Vigon that the intruder said, “Give me the money.”
Defendant argues Rafael did not testify he could not understand what the pair were saying, citing Rafael’s later testimony that he could understand “some” of what they were saying. Defendant’s citation simply underscores the myriad inconsistencies in Rafael’s testimony.
Subsequently, Rafael testified he could not remember making the statement to Vigon. However, when asked if he had any recollection of the intruder’s saying the word money, Rafael testified the man said he wanted to play “and then he said he wanted the money.” This statement contradicted Rafael’s prior statement that he could not understand what the intruder said.
Later, Rafael testified he could not remember his prior testimony that the intruder had demanded the money. During cross-examination, Rafael again stated he could not remember his prior testimony. Rafael then testified the intruder “said something about money. He said money. I don’t know exactly what.”
Taken as a whole, Rafael’s testimony was inconsistent both with his previous comments to Detective Vigon, and with his previous testimony during the trial. We do not apply the general rule about memory loss testimony mechanically. Instead, we consider the entire record to determine whether the trial court could reasonably admit the prior statement as inconsistent in effect. Inconsistency is not determined by the individual words of the witness in isolation. We may rely not only on the witnesses’ forgetfulness but also upon other indicators of uncertainty. (People v. Green, supra, 3 Cal.3d at pp. 987-988.) Here, given the different responses Rafael gave when questioned about what the intruder said, the trial court properly admitted Rafael’s prior statement to Vigon under Evidence Code section 1235.
Defendant also argues Rafael’s prior statement to Vigon was inadmissible based on Rafael’s lack of personal knowledge. According to defendant, Rafael lacked sufficient ability to understand English to testify regarding what the intruder said prior to the shooting.
Evidence Code section 702, subdivision (a) provides: “Subject to Section 801, the testimony of a witness concerning a particular matter is inadmissible unless he has personal knowledge of the matter. Against the objection of a party, such personal knowledge must be shown before the witness may testify concerning the matter.”
We disagree with defendant’s contention that Rafael’s language barrier prevented him from having personal knowledge of the exchange on the porch prior to the shooting. Although Rafael’s testimony was not a model of clarity, Rafael did testify he could understand some of what the intruder was saying. Although his recollection proved inconsistent and contradictory, Rafael testified the intruder said something about money in English. His testimony did not run afoul of Evidence Code section 702.
VI. CALCRIM NO. 318
Defendant argues CALCRIM No. 318 erroneously permits the jury to consider a witness’s prior statements as substantive evidence without requiring the jury to find inconsistency. According to defendant, the instruction allows the jury to credit a prior statement, even if the jurors believe the witness’s claim that he no longer remembers.
The court instructed the jury on the use of prior statements pursuant to CALCRIM No. 318: “You have heard evidence of statements that a witness made before the trial. If you decide that the witness made those statements, you may use those statements in two ways: [¶] 1. To evaluate whether the witness’s testimony in court is believable; [¶] and [¶] 2. As evidence that the information in those earlier statements is true.” Defendant argues that, unlike former CALJIC No. 213, CALCRIM No. 318 does not require that the jury first determine whether the prior statement was inconsistent with the witness’s trial testimony before considering it as substantive evidence.
CALJIC NO. 2.13 provides: “Evidence that at some other time a witness made a [statement] [or] [statements] that [is] [or] [are] inconsistent [or consistent] with [his] or [her] testimony in this trial, may be considered by you not only for the purpose of testing the credibility of the witness, but also as evidence of the truth of the facts as stated by the witness on that former occasion. [¶] [If you disbelieve a witness’ testimony that [he] [she] no longer remembers a certain event, that testimony is inconsistent with a prior statement or statements by [him] [her] describing that event].”
Defendant argues the “erroneous instruction was most prejudicial when applied to the prior statement attributed to Rafael [Gonzales], who told a detective on the night of the incident that the intruder said in English ‘give me the money.’ At trial, he testified that he could not recall making that statement.”
Defendant theorizes that had the jurors been given the correct instruction, CALJIC No. 2.13, they would have understood that a prior statement may be considered for the truth of the matter only if it is inconsistent with trial testimony. The jurors would have understood that Rafael’s claim could not be deemed inconsistent unless they did not believe his claim that he no longer remembered it. According to defendant: “Because there was no concrete basis for the jury to question Rafael’s testimony that he could no longer recall the statement, the jury had no basis to consider it as an inconsistent statement. Hence, the jury would not have considered it for the truth of the matter asserted.”
The appellate court in People v. Solorzano (2007) 153 Cal.App.4th 1026 (Solorzano) rejected a similar challenge to CALCRIM No. 318. In Solorzano, the defendant argued CALCRIM No. 318 failed to inform the jury that a prior statement can be considered as evidence only if it is found to be inconsistent with trial testimony. To the extent CALCRIM No. 318 deviated from CALJIC No. 2.13 by denying the defendant the same jury determination on the issue of inconsistency, defendant argued the instruction was erroneous. (Solorzano, at p. 1038.)
The appellate court noted the CALJIC instructions do not serve as the benchmark by which to adjudicate the correctness of CALCRIM instructions. The California Judicial Council has withdrawn its endorsement of CALJIC instructions and adopted the new CALCRIM instructions, strongly encouraging the use of the new instructions. (Solorzano, supra, 153 Cal.App.4th at p. 1038.)
The court also concluded the defendant incorrectly read CALJIC No. 2.13, “which straightforwardly allows the jury to use prior statements as substantive evidence without finding those statements inconsistent with his or her testimony (as does CALCRIM No. 318) and which optionally characterizes as inconsistent a witness’s testimony that he or she ‘no longer remembers a certain event’ if the jury disbelieves that testimony.” (Solorzano, supra, 153 Cal.App.4th at p. 1038.) We agree with Solorzano and find CALCRIM No. 318 correctly instructs the jury in the use of prior statements.
VII. PROVIDING AN INTERPRETER
Defendant claims the trial court abused its discretion in denying his request to strike Antonio’s testimony and appoint an interpreter. According to defendant, Antonio admitted he did not understand half the questions asked of him. The People respond that Antonio’s testimony demonstrated he understood and could respond to questions in English.
Background
During his testimony, Antonio was asked by defense counsel: “How did you know that none of the witnesses were able to identify Mr. Humphrey? [¶] A: What’s that again? [¶] Q: Uh, you indicated that you knew that no one could identify the person on the porch. Correct? [¶] A: That I, I identify you said? [¶] Q: Yes. [¶] A: I did. [¶] Q: No. You knew, did you not, that no witness was able to identify the person on the porch. You knew that did you not? [¶] A: I don’t quite get it.”
The court asked defense counsel to be more specific. Defense counsel asked: “Is it true, sir, that as of right now, as you sit there right now, you know, that no one was able to identify Mr. Humphrey, including yourself? [¶] A: Well, I don’t, I don’t. [¶] Q: You don’t understand it?”
The court again asked defense counsel to be more specific. Defense counsel then asked: “How is your English, sir? [¶] A: Not too good. [¶] Q: Not too good. In terms of things that you testified to this jury about, do you feel like you have been able to convey accurately what you saw and what happened? [¶] A: Well, I don’t -- say that again. [¶] Q: In terms of your testimony today in court. [¶] A: Uh-uh (positive). [¶] Q: Do you feel that you have been able to speak about the events in English correctly? [¶] A: No. [¶] Q: No. Uh, can you tell me -- well, I guess you can’t.”
Defense counsel then asked for an interpreter or, in the alternative, to strike Antonio’s testimony. The prosecution objected, and the court held a sidebar conference. The court then asked Antonio: “Sir, if there are any questions during the course of your testimony that are being asked by either of the two attorneys that you do not understand, make sure you let us know. All right?” Antonio responded in the affirmative.
Defense counsel then asked: “Sir, do you have a way of telling whether or not you understand what I’m saying? [¶] A: Right, yes. [¶] Q: How do you know when you fully understand my question? [¶] A: Well, because, you know... I cannot quite get it. [¶] Q: Uhm, if you were to describe the... amount of questions that I’ve asked so far that you understand, could you give me an estimate; Half of them, 75 percent?... [¶] A: Well, I don’t understand, like I said, too much. [¶] Q: You don’t understand too much. Is it fair to say that half the questions I’ve asked, that you haven’t understood? [¶] A: Yes. [¶] Q: Okay... Have you been giving answers to questions that you didn’t understand? [¶] A: No. [¶]... [¶] A. I don’t understand.”
The court then inquired whether Antonio understood the question. Antonio replied that he did not. The court then asked: “Have you answered questions... that you did not understand? [¶] The Witness: I don’t know. Some times, you mean? [¶] The Court: No. No. We all some times do not understand questions. But you have testified here during the last hour. [¶]... [Both attorneys] asked you questions. And you gave responses to each one of those questions. Some times you didn’t understand you told us. [¶] The Witness: Yes.”
The court then asked: “But were there questions that were posed by either of the two attorneys that you gave an answer to when you didn’t really know what they were asking? [¶] The Witness: Yes, I understand. [¶] The Court: You understand? [¶] The Witness: Yes. [¶] The Court: All right. Go ahead. [¶]... [¶] And please, if there are any questions that are posed by either of the two attorneys, you must tell us if you don’t. You do not have to answer any questions that you did not understand. [¶] The Witness: Okay. [¶] The Court: Just let us know.”
Later during cross-examination, defense counsel asked: “In the last few questions and answers, sir, have you thought you understood questions but didn’t? [¶] A: Yes. [¶] Q: And you had given an answer anyway. Right? [¶] Q: Right. [¶] Q: “Would you be more comfortable in terms of your accuracy testifying in Spanish? [¶] A: Yes. [¶]... [¶] Q: Have you asked for an interpreter? [¶] A: I haven’t.”
Antonio stated he had an interpreter when he testified a few years ago, but prior to his present testimony there had been no discussion of an interpreter. Defense counsel then asked: “Do you think your English has gotten better over the last four years? [¶] A: Just about the same.” Antonio testified he had lived in the United States since 1958.
Subsequently, defense counsel, outside the jury’s presence, requested that the court supply Antonio with a Spanish interpreter. Defense counsel argued any effort to impeach Antonio was futile because the jury would likely attribute inconsistencies in his testimony to language difficulties rather than a lack of credibility. Because Antonio admitted to answering questions he did not understand, there was no way of knowing if his testimony was accurate or the result of an inability to answer the question.
The prosecution objected, noting that, with the exception of Antonio’s testimony at the last trial, every interview he’s ever given had been in English. Although English was not Antonio’s first language, the prosecution argued Antonio had shown a clear understanding of the questions. Instead, the prosecution faulted some of the compound questions posed by defense counsel for causing Antonio’s confusion. The prosecution concluded: “A lot can be lost when you have an interpreter involved. If this witness is able to answer in English, he should be permitted to do so.”
The court denied defense counsel’s request, stating: “Based upon the testimony that has been rendered thus far, I do find that this witness has a sufficient understanding of the English language to testify in the English language. [¶] There’s no question there are some questions that have been posed that the witness is confused about. However, I do think he has a fundamental understanding of the English language based on the questions posed, and the responses given to conclude that he has a sufficient understanding to testify in the English language. [¶] So I would ask both counsel -- obviously, English is his second language -- when questions are posed, that we try to pose them in a way that are easily understandable, not only to this witness but to everyone.”
Discussion
Under Evidence Code section 752, subdivision (a): “When a witness is incapable of understanding the English language or is incapable of expressing himself or herself in the English language so as to be understood directly by counsel, court, and jury, an interpreter whom he or she can understand and who can understand him or her shall be sworn to interpret for him or her.” We will not disturb the trial court’s determination as to the necessity of an interpreter absent a clear abuse of discretion. (People v. Augustin (2003) 112 Cal.App.4th 444, 450-451.)
Defendant argues just such an abuse of discretion occurred here. He points out that an interpreter was provided for other Spanish-speaking witnesses. According to defendant: “The trial court found that the witness had an accurate understanding of English even though the witness himself claimed that he did not. Antonio was most qualified to speak on his own ability to understand English.” We disagree.
Although during cross-examination Antonio stated he would feel more comfortable testifying in Spanish, Antonio’s answers during the bulk of his testimony do not reflect a lack of English comprehension. Antonio answered numerous questions without hesitation and with seeming comprehension. As the People note, Antonio answered complicated questions and, when necessary, requested clarification of certain questions.
The court, by far in the best position to assess Antonio’s demeanor and responses, noted that some of Antonio’s confusion stemmed from the way the questions were phrased, not a language deficit. The record supports the court’s conclusion. Under the circumstances, the trial court did not abuse its discretion in declining defense counsel’s request for an interpreter for Antonio.
VIII. LESSER INCLUDED OFFENSES
According to defendant, his conviction for first degree murder resulted from the jurors being given an all-or-nothing choice. Under defendant’s analysis, given that the evidence of attempted robbery was weak and lesser offenses were more appropriate, the trial court erred in failing to instruct on involuntary manslaughter based on brandishing a firearm in a fight, voluntary manslaughter based on imperfect self-defense, and second degree murder. The People argue defendant waived the issue.
Waiver
Background
During the conference on jury instructions, the trial court stated to counsel: “[T]he Court prepared a draft set of instructions, and when we left off, Mr. Bloodgood [defense counsel] was going to evaluate the status of his case and determine... whether or not there would be any appropriate lesser-included offenses. [¶] And it is my understanding, Mr. Bloodgood, based upon your review of the evidence as it stands, as you anticipate it will stand at the completion of the case, there do not appear to be any lesser-includeds that would be applicable in this case?”
Defense counsel responded: “That’s true.” The prosecution agreed, and the trial court stated: “And the Court would also agree there is not a factual basis for any lesser-included offenses.”
Discussion
The doctrine of invited error applies if the trial court accedes to defense counsel’s tactical decision to request that lesser included offense instructions not be given. Such a tactical request precludes a claim of instructional error on appeal. (People v. Prince (2007) 40 Cal.4th 1179, 1265.) The People contend defense counsel expressly waived any lesser included instructions, barring defendant from raising the issue on appeal.
Defendant disagrees, arguing the record does not show the defense initiated a request to refrain from giving lesser included offense instructions, nor does it show a tactical basis for making such a request. We agree.
The doctrine of invited error requires that the record clearly reflect that counsel made an express request for, or objection to, the instruction in question. A defendant is barred from challenging an instruction only if the defendant invited the error by requesting that the court give it, and then, only if the record shows that he did so for a legitimate, tactical reason and not as a result of neglect, oversight, or mistake. (People v. Bradford (1997) 14 Cal.4th 1005, 1057.)
Defense counsel did not affirmatively request that the court refrain from giving the lesser included offense instructions. Nor did defense counsel inform the court that defendant desired to forgo the instructions as a matter of trial tactics. Defense counsel simply agreed that there did not appear to be any lesser included offenses applicable.
Invited error will be found only if defense counsel expresses a deliberate tactical purpose in resisting or acceding to the complained-of instruction. A record that is ambiguous as to whether defense counsel considered and rejected instructions on all lesser included offenses is not sufficient. (People v. Valdez (2004) 32 Cal.4th 73, 115-116.) Here, defense counsel expressed no such deliberate, tactical purpose and thus did not invite the error.
Instructions on Lesser Included Offenses
The trial court must instruct the jury on lesser included offenses where there is substantial evidence raising a question as to whether all the elements of a charged offense are present. (People v. Cook (2006) 39 Cal.4th 566, 596.) However, the trial court has no duty to instruct on lesser included offenses when there is no evidence that the offense was less than charged. (People v. Prettyman (1996) 14 Cal.4th 248, 265.)
In determining whether the record contains substantial evidence of a lesser included offense, the court does not consider the credibility of witnesses. (People v. Elize (1999) 71 Cal.App.4th 605, 615.) The court views the evidence in the light most favorable to the defendant. (People v. Barnett (1998) 17 Cal.4th 1044, 1151.) Doubts as to the sufficiency of the evidence to warrant instructions should be resolved in favor of the defendant. (People v. Flannel (1979) 25 Cal.3d 668, 685.) We review the trial court’s determination de novo. (People v. Waidla (2000) 22 Cal.4th 690, 733.)
Misdemeanor Manslaughter Based on Brandishing
Defendant argues the evidence supports an instruction on the lesser included offense of involuntary manslaughter based on brandishing. An unintentional killing that occurs as a result of brandishing is involuntary manslaughter. (People v. Steele, supra, 83 Cal.App.4th at p. 221; People v. Lee (1999) 20 Cal.4th 47, 61.) Brandishing occurs when “[e]very person who, except in self-defense, in the presence of any other person, draws or exhibits any firearm, whether loaded or unloaded in a rude, angry, or threatening manner, or who in any manner, unlawfully uses a firearm in any fight or quarrel” is guilty of a misdemeanor. (§ 417, subd. (a)(2)(A).)
Defendant argues the evidence of an attempted robbery was weak and that substantial evidence supported a theory that he came to play poker, not to rob the poker players. Defendant points to evidence that he approached the card players and asked to join the game.
Defendant also contends evidence is conflicting as to how the fight began. Defendant attempts to minimize Rafael’s testimony that he heard defendant order the men on the porch to “give me the money.”
Defendant theorizes that Victor was shot “accidentally while struggling for the gun at close range.” Under these circumstances, the jury could “easily” conclude defendant was responsible for the killing “because he unlawfully deployed the gun during a fight or quarrel over him wanting to play, which invited a struggle for the gun that lead to an unintentional killing.”
We disagree. Defendant killed Victor by placing the barrel of the gun against Victor’s shoulder and pulling the trigger. Victor was not killed by defendant in the act of brandishing a weapon; the pathologist found the gun discharged while in contact with Victor’s shoulder. The evidence does not support a scenario in which defendant brandished the gun, shooting Victor when the gun discharged accidentally during a struggle for the gun.
Misdemeanor Manslaughter Based on Attempted Theft
Defendant contends that if he had had any intent to steal, the jury could have found him guilty of attempted theft rather than attempted robbery. According to defendant, the evidence revealed it was more likely defendant planned to grab the money from the poker game rather than steal it at gunpoint. We disagree.
Theft is a lesser and necessarily included offense in robbery. Robbery has the additional element of a taking by force or fear. (People v. Ramkeesoon (1985) 39 Cal.3d 346, 351.) None of the evidence at trial supports defendant’s assertion that he intended to simply grab the money. Immediately after being denied entry into the ongoing poker game, defendant demanded the money and pulled out a gun. The court did not err in failing to instruct on misdemeanor manslaughter based on attempted theft.
Second Degree Murder
Defendant argues there was sufficient evidence to support a theory that defendant came to play poker, a fight broke out, and defendant was attacked, drew a gun in response, and fired. This scenario would support an instruction for second degree murder, a lesser included offense to first degree murder. Defendant also contends the evidence supports an instruction on voluntary manslaughter, since the jury could find he was provoked by Victor and killed in the heat of passion.
Second degree murder is a lesser included offense of first degree murder. (People v. Bradford (1997) 15 Cal.4th 1229, 1344.) Second degree murder requires an unlawful killing and malice aforethought. (§§ 187, subd. (a), 188.) Malice exists when an unlawful homicide is committed either with the intent to kill or with an awareness of the danger and a conscious disregard for the life of the victim. (People v. Rios (2000) 23 Cal.4th 450, 460.)
Voluntary manslaughter is also a lesser included offense to first degree murder. (People v. Anderson (2006) 141 Cal.App.4th 430, 447 (Anderson).) Voluntary manslaughter is the unlawful killing of a person in a sudden quarrel or heat of passion. (§ 192, subd. (a).)
Defendant argues the evidence supports his theory that he came to play poker, not to commit robbery, and a fight broke out. After being struck, defendant pulled out a gun, without premeditation, to retaliate. These facts call for a second degree murder instruction. Similarly, defendant contends the evidence that defendant was struck first and drew his gun only after the struggle was underway supports an instruction on voluntary manslaughter.
However, defendant’s recitation of the evidence completely ignores evidence that defendant planned to rob the poker game even before he arrived. Defendant admitted the robbery after the fact. In addition, defendant again minimizes the fact that a witness, Rafael, heard defendant demand the poker players hand over the money shortly before defendant drew his gun.
Defendant relies on People v. Jeter (1964) 60 Cal.2d 671 (Jeter) and Anderson, supra, 1414 Cal.App.4th 430, arguing the court erred in failing to instruct on second degree murder and voluntary manslaughter. We find both cases distinguishable.
In Jeter, the defendants were charged with robbery and murder. At trial a defendant testified he played dice with the victim and discovered the victim was cheating. The defendant accused the victim of cheating, and the victim grabbed him, pulled a gun, and fired at the defendant. In response, the defendant shot the victim. (Jeter, supra, 60 Cal.2d. at pp. 673-674.)
The Supreme Court found the trial court erred in failing to instruct on second degree murder and manslaughter. The court considered the defendant’s testimony and determined the jury might have convicted of a lesser crime had it been properly instructed. (Jeter, supra, 60 Cal.2d at p. 676.)
In Anderson, the defendant, charged with murder, gave a statement to police prior to trial. The defendant admitted taking the victim’s money after the victim stopped struggling. The court took the defendant’s version of events into consideration in finding the trial court erred in failing to instruct on second degree murder and manslaughter. The court reasoned the defendant’s statement provided substantial evidence that the defendant did not decide to take the victim’s money until after the victim had been mortally wounded. Since the defendant formed the intent after the fatal blow, her participation in the killing was not felony murder. (Anderson, supra, 141 Cal.App.4th at p. 447.)
Here, in contrast, defendant did not provide an alternative scenario to the events that unfolded on the porch. Defendant did not give testimony, nor did he make a prior statement to police, that might support a scenario sufficient to require the instructions he now complains the trial court failed to give. Instead, the jury heard that defendant approached the poker game on the porch with the idea of robbery in mind, demanded the money, and then, when met with resistance, pulled out a gun and shot Victor. The trial court did not err in failing to instruct on second degree murder or voluntary manslaughter.
IX. UNANIMITY INSTRUCTION
Defendant contends that since the information charged him in count two with attempted robbery of Victor and Bernardo, the court erred in failing to give a unanimity instruction in conjunction with the attempted robbery charge. Defendant was charged with the attempted robbery of Victor and Bernardo. Defendant contends when two victims are named in the accusatory pleading, jurors must be given a unanimity instruction to ensure that all jurors agree on the same victim.
The People counter that a unanimity instruction was not necessary because the only attempted robbery defendant was charged with stemmed from his taking of money from the poker players. Even though the information named Victor and Bernardo as the victims of the attempted robbery, the People argue: “[I]t is clear from the evidence that both men had constructive possession over the dish of poker money on the table.... Since there was only one attempted taking from two persons in joint possession of property, the jury would necessarily have had to find unanimously that both [Victor] and [Bernardo] were victims or that neither were victims.”
Defendant disagrees, arguing there was no evidence of a communal money dish on the table. However, the prosecution asked Bernardo: “When you were playing cards, did you put your money in a... little plate, dish, that you were betting, or was it on the table itself?” Bernardo replied, “On the table.” The prosecution then asked: “Okay. Was it primarily just change, not too many bills?” Bernardo responded, “Coins.... [¶]... Quarters.” The prosecution asked, “So this was not a high stakes poker game, not a lot of money was out there, was it?” Bernardo replied, “No. Twenty dollars at most.”
Nothing in this exchange limits the money in the middle of the table to Bernardo alone. In context, the jury could reasonably conclude defendant’s demand for the money encompassed money belonging to all the victims at the table, which included Bernardo and Victor. The court did not err in not giving a unanimity instruction for attempted robbery.
X. SECTION 654
Defendant argues the trial court should have stayed the sentence on attempted robbery and the firearm enhancement pursuant to section 654. According to defendant, punishing him for robbery and also for murder is inflicting double punishment for the same act.
Section 654 prohibits multiple punishments for offenses committed within one criminal transaction. Section 654 applies not only to the same criminal act, but also to an indivisible course of conduct committed pursuant to the same criminal intent or objective. (People v. Latimer (1993) 5 Cal.4th 1203, 1207-1208.) However, even if a defendant entertained a single principal objective during an indivisible course of conduct, he may be punished separately if during the course of that conduct he committed crimes of violence against different victims. (People v. Garcia (1995) 32 Cal.App.4th 1756, 1784.)
The court sentenced defendant to 25 years to life for murder, plus a 10-year consecutive determinative term under section 12022.53, subdivision (g). On the attempted robbery count, the trial court imposed a consecutive sentence of two years, plus a 10-year consecutive determinate sentence pursuant to section 12022.53, subdivision (b). In sentencing defendant, the court stated: “The Court finds that the multiple violent offense victim exception of [section] 654 applies in that there were numerous victims of this particular offense.” The record supports the trial court’s ruling.
Defendant approached the five men on the porch. The men were playing poker with a coin dish with money in it on the table. Defendant asked to play, but when rebuffed he told the men to give him the money. Defendant drew a gun and struggled with several of the poker players. Under these circumstances, each man at the table was a victim of the attempted robbery. Where a defendant robs one person, and in the commission of the robbery kills a different person, the defendant may be punished for both robbery and murder. (People v. Johnson (1974) 38 Cal.App.3d 1, 9.)
XI. SELECTION OF THE UPPER TERM
Defendant argues the trial court’s imposition of the upper term of four years for his conviction of assault with a firearm based on facts that were neither found by a jury nor admitted by defendant violates his constitutional rights under Cunningham, supra, 549 U.S. 270 [166 L.Ed.2d 856]. The People contend any error was harmless.
In Cunningham, the United States Supreme Court held that under California’s determinate sentencing law, except for a prior conviction, any fact that increases the penalty for a crime beyond the middle term must be tried to the jury and proved beyond a reasonable doubt. (Cunningham, supra, 549 U.S. at pp. 289-290 [166 L.Ed.2d at pp. 873-874].) Here, the trial court sentenced defendant to the upper term of four years on the assault with a firearm count “in light of the aggravated nature of the offense.” The court subsequently stayed the term under section 654.
The People properly concede the trial court’s imposition of the upper term runs afoul of Cunningham. However, as the People point out, such error is not structural, requiring automatic reversal, but is subject to the harmless beyond a reasonable doubt standard.
In People v. Sandoval (2007) 41 Cal.4th 825, the California Supreme Court stated the test for harmless error (Washington v. Recuenco (2006) 548 U.S. 212 [165 L.Ed.2d 466]) was whether the reviewing court could conclude, “beyond a reasonable doubt, that the jury, applying the beyond-a-reasonable-doubt standard, unquestionably would have found true at least a single aggravating circumstance had it been submitted to the jury....” (Sandoval, at p. 839.)
The evidence surrounding the firearm charge was undisputed. Defendant attempted to rob the group of men playing cards on the porch. During the struggle, defendant killed Victor and wounded Bernardo. The multiple acts, and the resulting harm, were more than sufficient to justify the high term on the assault with a firearm charge. None of these circumstances was contested. The defense in the case was simply that someone else committed the crime. The jury found the crime was committed by defendant. Under these circumstances, we can say that no reasonable jury would fail to find that defendant assaulted his victims with a firearm. This made defendant eligible for the higher term, which the trial court in its discretion imposed.
XII. RESTITUTION TO VICTIM’S WIFE
Defendant challenges the trial court’s order that he compensate Victor’s wife, Maria, for wages she lost attending the trial. Defendant acknowledges Maria is a “victim” within the meaning of the restitution statute and is entitled to restitution for any economic loss suffered as a result of defendant’s conduct. (§ 1202.4, subds. (k)(1), (f).) However, defendant argues Maria’s lost wages are not a result of defendant’s conduct.
“[I]n every case in which a victim has suffered economic loss as a result of the defendant’s conduct, the court shall require that the defendant make restitution to the victim or victims in an amount established by court order, based on the amount of loss claimed by the victim or victims or any other showing to the court.” (§ 1202.4, subd. (f).) An immediate family member, such as a spouse, is entitled to restitution. (§ 1202.4, subd. (k)(3)(A).)
To the extent possible, restitution shall fully reimburse the victim for every determined economic loss including, “[w]ages or profits lost by the victim... due to time spent as a witness or in assisting the police or prosecution. Lost wages shall include any commission income as well as any base wages.” (§ 1202.4, subd. (f)(3)(E).)
The trial court ordered defendant to make restitution to Maria in the amount of $12,240. The court based the award on the probation report, which stated: “Maria reported as a result of her trial attendance she missed approximately 60 days of work. Maria is employed as a waitress and earns $6.75 per hour plus tips. It is estimated she lost income in the amount of $12,240.”
Defendant argues an award to Maria for lost wages to compensate her for time spent attending trial as a spectator is not an economic loss that will support an award of direct restitution. According to defendant, Maria did not attend the trial as a witness nor did she do so to assist the police or prosecution.
Although defendant concedes economic losses are not limited to the examples specified in section 1202.4, subd. (f)(3), he notes a compensable loss must be a proper, necessary, and logical result of a defendant’s criminal conduct. Under defendant’s analysis, time spent in the courtroom as a spectator does not apply. Defendant terms Maria’s presence in the courtroom “elective” and unnecessary.
We review a trial court’s award of restitution under section 1202.4 for an abuse of discretion. We interpret section 1202.4 broadly and liberally to provide full reimbursement to the victims of crime. (In re Johnny M. (2002) 100 Cal.App.4th 1128, 1132.)
Section 1202.4, subd. (f)(3) allows reimbursement for “every determined economic loss incurred as the result of the defendant’s criminal conduct, including, but not limited to, all of the following....” Section 1202.4 specifically allows recovery for lost wages because of time spent as a witness or to assist the police or prosecution, but does not limit recovery to only those lost wages.
Given the open-ended nature of the statute, and our duty to interpret it broadly, we cannot find the trial court abused its discretion in finding Maria’s lost wages a “proper, necessary and a logical result of appellant’s criminal conduct.” (People v. Maheshwari (2003) 107 Cal.App.4th 1406, 1410.) Maria’s attendance at trial, while not mandated by her status as a witness or to aid in the direct prosecution of defendant, clearly stemmed from defendant’s conduct. Her presence at trial was a straightforward consequence of the murder. We find no abuse of discretion.
In his reply brief, defendant cites People v. Ayala (2007) 155 Cal.App.4th 604, arguing it compels a different result. However, after the brief was filed the Supreme Court granted review of that case, depublishing the opinion.
XIII. REDUCTION OF SENTENCE TO SECOND DEGREE MURDER
Defendant argues that under People v. Dillon (1983) 34 Cal.3d 441 (Dillon), his conviction should be reduced to second degree murder. Under Dillon, a punishment is cruel and unusual if it is so disproportionate to the crime for which it is inflicted that it shocks the conscience and offends fundamental notions of human dignity. (Dillon, supra, 34 Cal.3d at p. 478.) In Dillon, the court first considered the nature of the offense, including the defendant’s motive, the way the crime was committed, the extent of the defendant’s participation, and the consequences of the defendant’s acts. The court then examined the character of the defendant, including age, criminal history, and the defendant’s state of mind when committing the crime. (Id. at p. 479.)
Defendant concedes defense counsel failed to raise a Dillon claim at trial. However, defendant points out, we may consider the claim on appeal to forestall a subsequent claim of ineffective assistance of counsel. The People agree.
The 17-year-old defendant in Dillon and several friends tried to steal marijuana from some growers. The defendant became separated from his friends and heard shotgun blasts. The defendant believed his companions had been shot by an armed man guarding the marijuana. The guard approached the defendant, who could not run away or hide. Believing the man was about to shoot him, the defendant panicked and shot and killed the guard. (Dillon, supra, 34 Cal.3d at pp. 451, 482-486.)
The defendant had no prior record. The jury, judge, and a clinical psychologist all viewed the defendant to be uniquely immature. In addition, the jury expressed unease at finding the defendant guilty of first degree murder. (Dillon, supra, 34 Cal.3d at pp. 483-485.)
The court in Dillon held that life imprisonment for first degree murder was disproportionate to the defendant’s level of culpability in the crime. (Dillon, supra, 34 Cal.3d at p. 486.) The court noted the defendant was only 17. A psychologist testified that the defendant showed poor judgment and that, socially, the defendant functioned like a much younger child, failing to react maturely in stressful situations. (Id. at pp. 482-483.) The trial court had noted the defendant’s behavior was atypical and he had no prior record. Finally, the appellate court considered that the defendant’s accomplices were given only “petty chastisements.” (Id. at p. 488.)
In contrast to the situation in Dillon, defendant was the aggressor. He confronted a group of friends playing cards, threatened them, and ultimately shot and killed one of the unarmed men. In the process, defendant also wounded another of the men as he fired several bullets. Defendant fired not in fear, but in anger after being denied access to the game and after the men refused to hand over their meager money stakes to him. After the shooting, defendant concocted an alibi to conceal his crimes from his family.
Given the facts before us, defendant’s sentence does not shock the conscience or offend fundamental notions of human dignity. (Dillon, supra, 34 Cal.3d at p. 478.) Accordingly, defendant’s sentence is not disproportionate to the crime.
XIV. CUSTODY CREDIT
Finally, defendant contends the trial court erred in calculating his presentence conduct credit. The People concede the error.
Credit for presentence custody should be awarded for time in custody from the day of arrest to the day of sentence. (In re Pollock (1978) 80 Cal.App.3d 779, 781, fn. 3.) The court awarded defendant 1, 497 days of actual time. As defendant points out, there are 1, 499 days between March 22, 2002, and April 28, 2006. Therefore, the abstract should be amended to reflect 1, 499 days of actual custody credit.
DISPOSITION
The judgment is modified to reflect that defendant is awarded 1, 499 days of custody credit. As modified, the judgment is affirmed. The trial court is directed to amend the abstract of judgment accordingly and to send a certified copy of said amended abstract to the Department of Corrections and Rehabilitation.
We concur: BUTZ, J., SCOTLAND, J.
Retired Presiding Justice of the Court of Appeal, Third Appellate District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
The People have requested judicial notice of various scientific articles for purposes of this appeal. The four articles are attached to the motion for judicial notice. The motion is granted.