(Super. Ct. No. 04F10764)
The opinion of the court was delivered by: Scotland, J.*fn1
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
A jury convicted defendant William James Johnson of murdering Nora Mini and found to be true two special circumstance allegations, the murder occurred during the commission of rape and the commission of sodomy. The trial court found defendant had a prior conviction for a sex offense and had served a prior prison term. Defendant was sentenced to state prison for life without the possibility of parole, plus a consecutive term of five years for the prior conviction enhancement.
On appeal, defendant contends (1) the trial court erroneously allowed the introduction of testimony of a DNA expert who did not conduct the DNA testing, (2) the court failed to satisfy its duty of inquiry during a purported Marsden hearing (People v. Marsden (1970) 2 Cal.3d 118 (hereafter Marsden), (3) the prior sex offense conviction enhancement must be stricken because it is not applicable, and (4) the abstract of judgment must be amended to reflect that the sentence is to be served concurrently with other sentences defendant was then serving.
In a prior opinion, we reversed the true finding on a Penal Code section 667.6, subdivision (a) allegation, struck the consecutive five-year term imposed thereon, modified the judgment to impose a consecutive one-year term for a prior prison term enhancement found to be true, and affirmed the judgment as modified.
Among other things, we held that defendant's challenge to the DNA expert testimony, as purportedly violating the Sixth Amendment to the United States Constitution as interpreted in Crawford v. Washington (2004) 541 U.S. 36 [158 L.Ed.2d 177] (hereafter Crawford), failed for reasons stated by the California Supreme Court in People v. Geier (2007) 41 Cal.4th 555 (hereafter Geier).
Defendant petitioned for rehearing, implying that we should no longer follow Geier because the subsequent decision in Melendez-Diaz v. Massachusetts (2009) 557 U.S. ___ [174 L.Ed.2d 314] requires reversal of the judgment. We granted the petition and vacated our earlier opinion; and the parties have complied with our request for supplemental briefing on the following question: "How does the decision of the United States Supreme Court in Melendez-Diaz v. Massachusetts (2009) 557 U.S. ___ [174 L.Ed.2d 314, 129 S.Ct. 2527] apply to whether defendant's confrontation rights were violated when the trial court allowed the testimony of a DNA expert who did not conduct the DNA testing?"
As the parties note in their supplemental briefs, the issue of how Melendez-Diaz affects Geier is pending before the California Supreme Court in People v. Dungo (2009) 176 Cal.App.4th 1388 [found a violation of the confrontation clause where a forensic pathologist who did not perform the autopsy testified, relying on the autopsy report], review granted December 2, 2009, S176886; People v. Lopez (2009) 177 Cal.App.4th 202 [found a violation of the confrontation clause where the court received the blood-alcohol report in evidence without the analyst's testimony], review granted December 2, 2009, S177046; People v. Rutterschmidt (2009) 176 Cal.App.4th 1047 [found no violation of the confrontation clause where the chief lab director and supervising criminalist testified, rather than the analyst, about a drug analysis], review granted December 2, 2009, S176213; and People v. Gutierrez (2009) 177 Cal.App.4th 654 [found no violation of the confrontation clause where the lead nurse practitioner testified concerning a sexual assault exam and report done by a non-testifying nurse practitioner], review granted December 2, 2009, S176620. Recently, the Supreme Court also decided to review People v. Miller (2010) 187 Cal.App.4th 902 [found no violation of confrontation clause in allowing a criminalist to testify concerning the results of testing and his independent conclusions based on a DNA report prepared by a criminalist who did not testify], review granted November 10, 2010, S186758.
Rather than wait until the California Supreme Court decides the issue, we proceed to address it knowing that, regardless of what we conclude, the Supreme Court will grant review and hold the case until it decides the issue. For reasons that follow, we conclude that the decision in Melendez-Diaz does not compel reversal of the judgment. Thus, we will again dispose of this case as we did in our initial opinion prior to rehearing.
About 3:00 p.m. on March 10, 1982, the body of 59-year-old Nora Mini was discovered in her car parked at a Texaco station in Sacramento on Florin Road at 55th Street, where she usually parked at night. Mini had been homeless for years, living out of and sleeping in her car. She was a loner who spoke to few people, collected aluminum cans, and did not panhandle.
Mini had been raped and sodomized; she died from cardiac arrhythmia brought on by the attack, which caused pain from tears to her vagina and anus. The injuries to her vagina and anus were most likely inflicted at or near the time of her death. She had coronary artery disease and scarring from a previous heart attack. She died about 18 to 24 hours prior to a preliminary examination conducted at 5:00 p.m. on March 10, 1982, by Dr. Pierce Rooney. During an autopsy, Dr. Rooney collected forensic swabs from Mini's vagina, rectum, and mouth, and he removed hairs from her body. Mini had abrasions on her cheek and ear, abrasions and a laceration under her chin, trauma to her left hand and right arm, abrasions on her right wrist, and a bruised left hip. There were indications of strangulation, i.e., "zones of hemorrhage" behind her larynx, but not enough evidence to conclude it was the cause of death. Dr. Rooney believed that the tears to Mini's vagina were caused by a knife or piece of glass, or even "violent sex."
The swabs taken from Mini's vagina and rectum revealed the presence of sperm. Eighty percent of the sperm taken from her vagina was intact, meaning there was a head and tail; only one intact sperm was on the rectal swab. The sperm were deposited sometime between 5:00 p.m. on March 9, 1982, and 11:00 a.m. on March 10, 1982.
In 2003, the Sacramento County District Attorney's crime laboratory (Sacramento crime lab) conducted DNA testing on the vaginal swab from Mini, developed a DNA profile, and sent it to the Department of Justice national data bank. It matched defendant's DNA profile in the data bank. A new sample was taken from defendant in October 2004, and DNA analysis was performed. Defendant's DNA profile matched the DNA profile from both the vaginal swab and rectal swab from Mini. The DNA profile from the vaginal swab occurs "at random among unrelated individuals in one in 140 quintillion of the African American population," "[o]ne in 59 quintillion of the Caucasian population," and "one in 760 quintillion of the Hispanic population." Based on mitochondrial DNA testing, one of the hairs removed from Mini's entroital area could have originated from defendant.
Defendant had moved to Sacramento in early 1982, when he was 21 years old. Interviewed on October 27, 2004, while in custody in state prison for other crimes, defendant claimed he did not arrive in California until March 28, 1982, and said he stayed with his brother in Rancho Cordova. When shown a photograph of Mini, defendant denied having had sex with her and denied having ever seen her car. When confronted with the DNA evidence, defendant again claimed that he had never had sex with Mini.
The prosecution introduced evidence underlying defendant's conviction for rape of a 16-year-old girl in 1977 in Indiana, while she was home alone with her baby.
Defendant testified as follows at trial. He was 17 years of age when he was convicted and sentenced to prison for raping the 16-year-old girl. After he was released from prison, he came to California. He initially believed that he was not in Sacramento on March 10, 1982, but then admitted he must have been because of the DNA evidence. He did not recognize Mini from the picture shown to him, he denied having sex with a person who looked like her, and he denied being involved in Mini's death. Defendant acknowledged having had only vaginal sex with a woman he met at a midtown liquor store. She told him that she was from either Oklahoma or Oregon. In January 1982, he was convicted of theft in excess of $150. In March 1983, he was convicted of kidnapping with intent to commit robbery and false imprisonment by fear or menace--crimes committed on April 1, 1982. He had been in custody since April 1982.
The defense called Mini's son, who testified that Mini was born in Oklahoma. Shown the coroner's report, defendant testified that it did not indicate where Mini was born.
After the defense rested, the People introduced evidence that Mini's Oklahoma birth certificate had been provided to defendant's attorney. In surrebuttal, defendant claimed that he had not seen the Oklahoma birth certificate.
Defendant contends the trial court committed reversible error in allowing the testimony of a DNA expert who did not conduct the DNA testing. Defendant initially conceded that we were required to follow the holding of Geier, supra, 41 ...