APPEAL from a judgment of the Superior Court of Los Angeles County. Frederick N. Wapner, Judge. Affirmed. (Los Angeles County Super. Ct. No. BA315483).
The opinion of the court was delivered by: Rothschild, J.
CERTIFIED FOR PARTIAL PUBLICATION*fn1
Hugo Gutierrez appeals from the judgment following his convictions for multiple counts of kidnapping and forcible sex crimes. He contends the court prejudicially erred in excluding evidence of his lack of criminal record which evidence would have challenged the victims' identification of him as the perpetrator. He also contends his Sixth Amendment right to confrontation was violated by admission of testimony regarding the DNA and sexual assault reports from persons who had not initially analyzed the data and prepared the reports. Finally, he contends the movement of the victims was insufficient to support his convictions for aggravated kidnapping. We affirm.
At approximately noon on December 18, 2006, E.R. was jogging in Ernest Debs Park. She ran through the park to its outer perimeter and back to a circular area near the parking lot and picnic tables. On her second lap around this area, a man she had seen on her first lap sitting on a picnic table bench approached her. The man was Gutierrez. He pulled out a black metal revolver and demanded her iPod.
Gutierrez was wearing a dark ―hoody‖ sweatshirt with the hood pulled over his head. He had big lips, a big nose, ―big eyebrows,‖ and a goatee.
E.R. grabbed the gun and pushed it away from her. She gave him her iPod and asked to leave. Gutierrez refused to release her and told her he wanted her ―to pleasure him.‖ He pushed her off the paved path over the embankment and then pushed or pulled her down the hillside covered with trees to a partially cemented drainage ditch largely secluded from public view. Heavy foliage and trees with drooping branches covered the hillside leading to the ditch.
When they reached the flat area of the drainage ditch Gutierrez unbuttoned his pants, took out his penis and told her to perform oral sex on him. She complied. After several minutes he stopped and she began crying. He warned her not to tell anyone or he would come after her. He appeared to take a photo of her using his camera phone. He then told her to take off her pants and shoes and, when she did not, he pulled her jogging pants down to her ankles. Gutierrez got on top of her and partially penetrated her vagina with his penis. He then turned her over and attempted to penetrate her both vaginally and anally. Gutierrez told her to perform oral sex on him again and she did so until he ejaculated in her mouth. She spit it out and Gutierrez told her to clean off his penis. He wanted her to use her mouth but she used her T-shirt instead. She noticed that Gutierrez had a scar on his right hip.
While E.R. was orally copulating Gutierrez she heard voices and saw people walking on a path further up the hill but her view of them was obscured by the foliage and tree branches. Gutierrez told her to stay quiet.
After Gutierrez ejaculated, he told her to remain there until he was gone. When she was sure he had left, she climbed up the slope, went home and took a shower. Later that evening a friend convinced her to report the incident to the police. Officers interviewed her and then took her to County U.S.C. Hospital for a sexual assault examination. There a nurse practitioner interviewed and examined her and prepared a report of her conclusions and findings. The nurse practitioner reported that E.R.'s genital examination was normal, that she had no injuries, and that the lack of injuries was consistent with the history E.R. provided of the assault. Based on E.R.'s description, the nurse practitioner noted in her report that the assault involved ―attempted,‖ rather than actual, vaginal and anal penetration.
By the time of trial the nurse practitioner had moved out of state. Julie Lister, the lead nurse practitioner at County U.S.C. Hospital, testified in her stead. Lister stated that after an independent review of the nurse practitioner's report, and based on the history that E.R. reported, she would have reached the same conclusions as the nurse practitioner who conducted the sexual assault examination.
After the examination, the officers drove E.R. to her home where they collected the clothes she had been wearing during the assault.
On January 11, 2006, officers showed E.R. a photo lineup. She selected Gutierrez's photo immediately. In the narrative portion of the photo array form she wrote, ―I'm completely sure that the suspect number four [Gutierrez] is the one who committed the crime. I recognized him the instant I saw the picture. I remember him by his skin complexion, eyes, lips, and facial hair. There is no doubt that suspect number four [Gutierrez] is the person who committed this crime.‖
A criminalist tested E.R.'s T-shirt for the presence of biological material. Three large stains on the shirt tested positive for the presence of semen. The criminalist sent a cutting from the stain on the chest area of the T-shirt having the highest concentration of semen to Orchid Cellmark for DNA analysis, together with DNA reference samples from E.R. and Gutierrez, obtained after his arrest.
Jody Hynds is employed as a forensic supervisor at Orchid Cellmark, responsible for supervising six DNA analysts. She has a bachelor's degree in biology, a master's degree in forensic genetics and has been employed at Cellmark for over eight years. She had testified over 50 times regarding forensic testing of DNA, and had done so on behalf of both the prosecution and the defense, as such testing can be used to match individuals to evidence as well as to exclude individuals as possible suspects.
Hynds did not personally perform any tests, or prepare the initial analysis and report regarding the semen sample in this case. She instead reviewed the analyst's case file and independently analyzed the raw data. She made her own comparisons to the reference samples and checked them against those listed in the report to make sure she agreed with the analyst's conclusions. In conducting her analysis Hynds concluded that a comparison of all 13 locations on the DNA of the sperm sample on the T-shirt with the 13 locations on the DNA from Gutierrez's reference sample showed a match, indicating that the sperm came from Gutierrez. According to Hynds's calculations, the random probability of such a match was one in 237.5 quintillion in the Black population, one in 7.634 quintillion in the Caucasian population, one in 342.6 quadrillion in the Southwest Hispanic population, one in 1.319 quintillion in the Southeast Hispanic population and one in 229.4 quadrillion in the Asian population. Hynds explained that that this DNA profile was exceedingly rare because a probability match of one in 6.6 trillion is generally considered sufficient to establish a person's identity.
M.M. and K.M.-Counts 7 -- 9
On January 9, 2007, at approximately noon, M.M. and K.M. went hiking through the hillsides of Ernest Debs Park. As they returned to the flat area of the park near the parking lot, at a distance they saw Gutierrez sitting at a picnic table bench wearing a hooded sweatshirt with the hood pulled over his head.
As M.M. and K.M. turned around to walk back to their car they heard footsteps and someone yelling for them to stop. They turned around and saw Gutierrez running after them pointing a black metal revolver. The women clasped hands and started walking backward away from Gutierrez. Gutierrez gestured with the gun and told them ‗―come over here, come over and follow me.'‖ The women inched forward, slowly taking small steps. Gutierrez became frustrated, poked the gun into M.M.'s shoulder and said, ‗―Do you want to die? Do you want to die?'‖ He told them ‗―come on, just follow me, hurry up, move over there, hurry up.'‖ Gutierrez gestured at an area past an embankment, down the hillside covered with trees and low hanging tree branches. The women looked over the embankment and saw what appeared to be a flat area with an unfinished drainage ditch where they would be out of public view because of all the foliage.
M.M. cried and pleaded with Gutierrez but he kept gesturing with the gun to prod them along. The women linked arms and slowly shuffled down the slope, sometimes deliberately tripping and falling in order to stall. When they reached the flat area near the drainage ditch the women pleaded with Gutierrez to let them go and offered Gutierrez their purses, a laptop and an iPod that were in the ...