Appeal from a judgment of the Superior Court of Orange County, David A. Hoffer, Judge. Affirmed. Super. Ct. No.06CF1139
The opinion of the court was delivered by: Fybel, J.
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A jury found defendant Trevor Jordan Shaw guilty of two counts of forcible sexual penetration by a foreign object, two counts of making criminal threats, one count of first degree burglary, and one count of coercion. The jury also found several enhancement allegations true.
Defendant asserts three contentions of error. First, he argues the trial court erroneously denied his request to instruct the jury on assault with intent to commit forcible sexual penetration by a foreign object as a lesser included offense of forcible sexual penetration by a foreign object. Second, he contends the court erred by admitting a forensic scientist's testimony stating that the semen found in samples taken from the scene of the charged offenses contained defendant's DNA, because other forensic scientists involved in the testing of those samples did not testify at trial, in violation of defendant's right to confrontation under the United States Constitution. Third, he contends the trial court erred by imposing two consecutive 25-year-to-life prison terms under Penal Code former section 667.6, subdivision (d) because the court erroneously believed it had no discretion to impose those terms concurrently. (All further statutory references are to the Penal Code.)
We affirm. Substantial evidence did not support instructing the jury on assault with the intent to commit the offense of forcible sexual penetration with a foreign object. Even if the trial court had erred by failing to give such an instruction, any such error was harmless because the court instructed the jury on attempted forcible sexual penetration by a foreign object and battery as lesser offenses of forcible sexual penetration by a foreign object. As to defendant's contention his right to confrontation was violated, even if the admission of the forensic scientist's testimony was error, for the reasons we discuss post, any such error was harmless beyond a reasonable doubt. We further conclude the trial court did not err by imposing two consecutive 25-year-to-life terms under former section 667.6, subdivision (d).
On March 28, 2001, 14-year-old Sara D. spent the night at the apartment of her best friend, 15-year-old Chelsea S. Chelsea shared a bedroom and bunk beds with her five-year-old brother. That night, Chelsea's brother slept in the top bunk bed, and Chelsea and Sara shared the larger bottom bunk bed.
Around 3:00 a.m., Sara woke up to the sound of blinds moving; she saw a hand pushing the bedroom window open. Sara woke up Chelsea and told her someone was at the window; Chelsea looked up and saw a man standing above them. Sara heard the man say, "do not make a sound or I'll blow your head off." He also threatened to shoot them if they did not turn around. Sara described the voice as "firm and demanding." Chelsea described the voice as "[q]uiet but stern." Both Sara and Chelsea decided to do as they were told because they thought the man had a gun and they were scared.
The man told Sara and Chelsea to pull down the blankets; they complied. The man told them to remove different articles of their clothing, piece by piece. After Sara and Chelsea had removed all of their clothing, he told Sara to stand up next to the window with her back to him; he told her not to look at him. She stood on the bottom bunk bed with her back to the window. The man reached his arm and hand through the window, rubbed Sara's vagina, put his finger inside her vagina, and touched her breasts. Sara asked the man why he was "doing this" and he told her to "shut up."
The man then told Sara to lie back down on the bed and directed Chelsea to stand in the same spot and in the same position with her back to the window; Chelsea complied. The man reached through the window with his hand, touched her breasts, and inserted his finger into her vagina several times. Chelsea testified the man licked her lower back and then said, "oh, shit. I'm coming." He let go of Chelsea and said, "if you tell anyone or call the cops, I'll come back and kill you." He then ran away.
Chelsea closed and locked the window and checked on her brother who was awake and hiding under the covers. Chelsea and Sara went into the bathroom and washed themselves. They then sat in the living room, not sure what to do; they did not immediately call the police because they were scared the man would come back and harm them again. They tried unsuccessfully to awaken Chelsea's mother, but she had taken medication and appeared to be "out of it."
While Sara and Chelsea were sitting in the living room, about 20 to 30 minutes after the man left, they heard a loud noise outside. They called 911 and Orange Police Officer David Orona arrived at the apartment around 4:35 a.m. He interviewed Sara and Chelsea separately. He did not locate any possible suspects in the area. A registered nurse conducted sexual assault examinations on Sara and Chelsea. Sara had "general redness" in her genital area. The nurse found bruises in Chelsea's genital area consistent with digital penetration.
Around 4:30 a.m., officer Michael Taylor of the Orange Police Department was dispatched to the apartment to assist Orona. He examined the crime scene and discovered footprints in the grass and a substance, which appeared to be semen, on the stucco just below Chelsea's bedroom window. He collected samples of the substance (the samples) and took them to the police department.
Senior forensic scientist Russell Baldwin testified about the testing of the samples. He testified that one analyst, Bill Dare, determined that the substance contained semen and filled out a request for typing of the semen. Another forensic scientist, Qui Dang, performed the extraction process on the samples. Following the quantification process, Baldwin did the typing of the samples. Once a DNA profile had been created for the samples, the Orange County crime lab checked the 2001 database to determine if there was a link or match to any known person. No data was provided from the database. As the crime lab did not obtain any leads or possible links to any known individuals, the analysis was complete and the data obtained from the samples remained in the database.
In January 2006, the Orange County crime lab was notified that there was a possible link to a person identified in the database. The crime lab obtained a buccal swab from defendant in December 2006. The swab was analyzed in the same way that the samples were analyzed through the extraction, quantification, and typing processes. The DNA profile from the samples and the DNA profile from defendant's buccal swab were "exactly the same."
Defendant lived in Oregon from early 2001 through 2003. He was in the general area of Chelsea's apartment on March 29, 2001, because he and his wife were visiting Disneyland in California that week.
In September 2006, detective Elizabeth Hoffman met with defendant at the Oregon State Penitentiary to speak with him about the March 29, 2001 incident. When asked about the early morning of March 29, defendant told Hoffman that he had been a "Peeping Tom" for so long and in so many towns that it would be ...