APPEAL from a judgment of the Superior Court of Sacramento County, Michael W. Sweet, Judge. Affirmed as modified. (Super. Ct. No. 06F06085).
The opinion of the court was delivered by: Butz, J.
CERTIFIED FOR PARTIAL PUBLICATION*fn1
A jury acquitted defendant Rolando N. Gallego of first degree murder but convicted him of a 1991 second degree murder and found he used a knife to commit it. (Former Pen. Code, §§ 187, 12022, subd. (b)(1).)*fn2
Sentenced to a state prison term of 16 years to life, defendant appeals. He contends (1) DNA*fn3 testing should be deemed a constitutionally protected "search," regardless of the source of the tested material; and, the trial court: (2) coerced a guilty verdict after a second deadlock and abused its discretion in denying the release of juror information; (3) erroneously instructed on an alleged false statement from him; (4) erroneously admitted hearsay evidence and excluded his polygraph willingness; and (5) erred regarding presentence conduct credit and a parole revocation fine.
We agree with defendant's last contention regarding presentence conduct credit and the parole revocation fine, but disagree with his remaining claims. Of note, we conclude that a cigarette butt that defendant voluntarily discarded by tossing it onto a public sidewalk, which was then collected and DNA-tested by law enforcement only to identify defendant as a suspect in an ongoing criminal investigation, did not constitute a search under the Fourth Amendment to the federal Constitution. Defendant had no reasonable expectation of privacy in this discarded item.
The victim was Leticia Estores, defendant's aunt and godmother. She was killed in 1991. Defendant had been one of a few "persons of interest" to law enforcement at that time, but the primary evidence against him was not developed until 2006; that year, his DNA was discovered on a towel that had been collected at the crime scene (the towel contained several apparent blood stains).
The 1991 Murder of Leticia Estores
On August 29, 1991, at 7:00 p.m., Estores, along with a co-worker, locked up the hair salon at which they worked; the two planned to see each other again at work the next morning.
Uncharacteristically, Estores did not show up that next morning (August 30); nor did she call. At 1:47 p.m. that afternoon, the police checked on Estores at her home. Getting no response, an officer went inside through the unlocked front door. He found Estores lying in a pool of blood on the kitchen floor. The officer also noticed: a "bloody" towel on the floor near the front door; the television, as well as some lights, were on; there were no signs of forced entry; and the house was very neat. Reputedly, Estores was cautious about opening her front door to strangers.
Crime scene investigators collected an apparently cleaned kitchen knife in the kitchen sink, the broken tip of which was found embedded in Estores's wrist. Although the house was not ransacked, it appeared that someone had gone through drawers in the bedrooms, including the master bedroom, because several items of neatly folded clothing had been flipped over. Estores's husband, George, testified that his wife kept $1,000 in cash in a shoe box in their bedroom closet.*fn4 Neither that money, nor anything else of value, however, was taken from the house.
An autopsy of Estores disclosed that she had been stabbed and cut at least 50 times, all over her body, including one just below her eye that pierced her brain stem. The pathologist said the time of death could have been between 9:00 and 11:00 p.m., but this time could not be determined with certainty.
Defendant's Statements to Police
In the fall of 1991, Detective Richard Lauther asked defendant where he was on the night of August 29, 1991. Defendant replied that he was at his restaurant job (the Capital Towers), and he gave Lauther his employer's phone number; after work, defendant said, he went home and got into bed with his wife. Lauther did not have any documentation of this statement from defendant. Lauther called defendant's employer and asked whether defendant had been at work on August 29, 1991. The employer's response prompted Lauther to want to speak with defendant again.
Subsequently, on November 12, 1991, Detective Lauther and his partner, Detective Robert Risedorph, interviewed defendant at defendant's residence, which was about a mile from Estores's house. Defendant told the detectives that on the night of the murder, he was gambling at the El Dorado Hotel in Reno. He said he had called his employer that day and told him he could not come to work because he was going to visit his sick grandmother. (The defense subsequently elicited testimony from Lauther that when he checked with defendant's restaurant employer, he was told that defendant had called in sick that day.) Defendant did not tell his wife about his gambling plans because the subject caused friction between them. Defendant added that he used cash to pay for all his expenses on the trip, including gas. He did not think any casino employee would remember him being there.*fn5
Defendant admitted to the detectives that he had a gambling problem, that he gambled in Reno frequently, that he owed gambling debts to several people (including $4,000 to his Uncle Paul), that he was still gambling in an attempt to pay his debts, and that he was having trouble making his mortgage payments. Defendant also said he once borrowed $40 from Estores in June 1991 to stay at a hotel after his wife kicked him out for gambling.
Defendant told Detectives Lauther and Risedorph that he last saw Estores the Sunday night before her death; he was at her house for about an hour watching a movie with her husband. Defendant said he had been to Estores's home a few times before then, but had never spent the night there (although he showered there once in June 1991). He denied that he had ever cut himself while in her house.
In July 2006, defendant was reinterviewed by Detectives Grant Stomsvik and Ted Voudouris. Defendant repeatedly denied having anything to do with Estores's murder. He stated, however, that he spent the night at Estores's house two weeks before her death while Estores's then 17-year-old son Christian and his girlfriend were staying there (in August 1991, defendant was 32 years old; Christian testified he could not recall ever seeing defendant at his mother's house). Defendant also acknowledged filing for bankruptcy, apparently in the early 1990's.
Gambling Debts to Family Members
Antonio (Tony) Concepcion, a distant relative of defendant's, and Tony's wife Priscila testified that about a week before Estores was killed, they loaned defendant $5,000 to pay off gambling debts; but they refused to loan defendant another $5,000 a few days later when he said he had lost the first $5,000 gambling. Defendant also asked Tony to intercede on his behalf with another family member (Eugene Amador) to borrow money.
An aunt of defendant's, Primitiva Madayag, testified that about a week before Estores was killed, she and her husband had loaned defendant $2,000 upon defendant's request.
In December 1993 and September 1994, the Sacramento County Crime Lab, through criminalist Dolores Dallosta (with review by her supervisor, Mary Hansen), conducted forensic tests on the apparently bloodstained 15-inch by 23-inch kitchen towel found at the crime scene. Eighteen different areas of the towel contained what could be bloodstains (by color). Three types of tests disclosed that, at the least, five stained areas contained human blood (the storage of the towel for two years in an unventilated warehouse could have adversely affected the number of blood findings).
In April 2006, another criminalist at the Sacramento County Crime Lab, Joy Viray, conducted DNA testing on three of the five stained areas of the towel that had tested positive for human blood. (Preliminarily, Viray performed a presumptive blood test on these areas and obtained positive results; a confirmatory test, however, showed negative results, which Viray explained could have happened given the age of the sample, as the confirmatory test requires the stain to go into solution.) The DNA testing revealed a male DNA profile that had similarities to Estores's DNA, suggesting the male was related to Estores.
This DNA testing caused renewed interest in defendant. In May 2006, police surreptitiously obtained a sample of defendant's DNA by following him and then collecting a cigarette butt he had discarded on a public sidewalk. Defendant's DNA on the cigarette butt matched the male DNA on the three human blood-tested areas of the towel.
At trial, defendant did not dispute that his DNA was on the kitchen towel. He disputed that his blood was the DNA contributor; instead, he argued, he had inadvertently wiped sweat, saliva or mucus on the towel on an earlier occasion, and that substance got mixed together with bloodstains from meat. Defendant presented test results from a forensic serologist, Gary Harmor, which supported this theory. These tests showed the absence of human blood (pursuant to a relatively new type of test; although Harmor's presumptive blood tests were all positive), and the presence of cow or sheep blood on the towel as well as human saliva.
The prosecution countered this testimony with test results from county criminalists and with expert testimony from a UC Davis professor of meat science (specializing in meat processing). This evidence showed that liquid in packages containing store-bought beef and lamb does not test positive for human blood, and that there is almost no blood at all in these packages after slaughter and processing (the red liquid in a meat package is about 99 percent water, and the rest is almost entirely myoglobin, a red pigment in muscle tissue that is distinct from hemoglobin, which is present in blood).
The prosecution anticipated and rebutted a third party culpability defense that Estores's husband George or her son Christian had a motive to kill her because they benefitted from a $100,000 life insurance policy payout; and that George was mad at her for visiting her former husband during a recent trip to the Philippines. George and Christian testified they were in the Bay Area on the night of the murder, and these alibis were corroborated.
I. The Fourth Amendment and the DNA Testing of the ...