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The People v. Charles Richard Smith


September 29, 2011


(Super. Ct. No. 06F00122)

The opinion of the court was delivered by: Blease , Acting P. J.

P. v. Smith CA3


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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

Defendant Charles Smith was accused of five separate crimes as the result of two incidents occurring on the same evening in the same neighborhood within a short time of one another. The first incident involved the attempted robbery of Robert Eady. The second incident involved the carjacking, kidnapping and forcible oral copulation of Jane Doe. At the time of the attempted robbery Eady saw the man who attempted to rob him, an African American, get into a pickup truck at the same place that Jane Doe was carjacked. Eady and Jane Doe were the principle witnesses against defendant.

Defendant, who is African-American, was picked up by the authorities when he was walking down a sidewalk in the area in which the crimes had been committed. When defendant was detained, he matched the only description authorities had of the perpetrator of the Jane Doe incident -- a black male.

Jane Doe, who was Caucasian, was brought to the scene of the crimes where defendant was being detained. After looking at defendant for several minutes, she identified him as the man who had forced his way into her pickup and forced her to orally copulate him. Eady was unable to identify defendant as the person who attempted to rob him or the person he had seen enter the pickup truck.

In addition to the testimony of the victims, the prosecution presented the expert testimony of Jeffrey Herbert, a criminalist from the Sacramento County District Attorney's crime lab. He analyzed a penile swab taken from defendant for DNA.*fn1 The purpose was to determine the likelihood that it contained the victim's DNA. He determined that the swab contained a mixture of at least two persons' DNA, that the victim, Doe, was a potential contributor to the DNA found on defendant's penile swab, and that only 1 in 95,000 Caucasians could be a possible contributor.

Defense experts assailed Herbert's statistical analysis, and claimed the correct conclusion to draw from the DNA evidence was that the results were inconclusive because there was insufficient DNA to perform a test. Herbert's supervisor, Mary Hansen, was put on the stand in an attempt to reinforce his expert credibility. She did not. Hansen defended Herbert's statistical methodology, but claimed that the question Herbert had been attempting to address was the frequency of two people being a possible contributor to the mixture. However, this was clearly inconsistent with Herbert's testimony. Hansen proceeded to give two additional frequency statistics. She first stated that 1 in 47 Caucasians would be included as a contributor, then later claimed the correct number was 1 in 66. Thus, the jury had before it three different statistical results from the prosecution ranging from 1 in 47 Caucasians to 1 in 95,000.

The trial court refused to strike the prosecution's expert DNA testimony despite defendant's argument that the testimony did not comply with the third prong of the Kelly*fn2 rule that expert scientific testimony is not admissible unless it can be shown that the procedure utilized complied with accepted methodologies.

In addition to claiming the admission of the DNA evidence constituted prejudicial error, defendant argues that the trial court should have sua sponte ordered a hearing as to his competence to stand trial, that the prosecution knowingly presented false evidence and suppressed evidence favorable to defendant, that there was insufficient evidence of attempted robbery, and that his multiple convictions for kidnapping were improper.

We shall conclude that the prosecution's DNA testimony should have been stricken as in violation of the third prong of the Kelly rule. However, we conclude, given the facts of the case, the failure to strike the prosecution's expert DNA testimony was not prejudicial, because the non-DNA evidence was sufficient to identify defendant as the perpetrator under any standard of review.

We also conclude defendant should not have been convicted of multiple kidnapping charges, and that the imposed crime prevention fine was unauthorized. We shall otherwise affirm the judgment.


The charges against defendant stem from a series of three events that occurred in the early evening of January 4, 2006. Because the prosecution relied in part on the proximity of time and place in identifying defendant as the perpetrator of all the charged crimes, the timing of the events is important.

Around 5:30 in the evening, Robert Eady was walking from his residence near the intersection of Watt Avenue and Hurley Way to the Safeway store in the shopping center at Watt Avenue and Arden Way. It was just getting dark and the lighting was terrible. As he walked into the parking lot of an Adventure Sports store, an African-American male accosted him. Eady later described defendant as between 25 and 35 years of age, approximately 180 pounds, about 5 feet 7 inches to 5 feet 10 inches tall, with a thin but muscular build, and hair pulled back in a ponytail.

When Eady walked past defendant, defendant said, "Come here, come here for a minute . . . ." Eady walked over to him. Defendant had a deep voice. At trial, Eady could not remember if defendant next asked him if he wanted to buy drugs, or demanded Eady give him Eady's wallet, but he thought defendant asked for his wallet.*fn3 Eady, who thought at first that defendant was kidding, told him "No," and turned to walk away. When Eady was about halfway to the sports store, defendant said, "You want me to shoot you in the back?" Eady turned to look, and defendant was pointing his index finger at Eady as if he were holding a gun. Defendant had a "punky grin" on his face. Eady took defendant's actions as a threat, decided defendant was not kidding, and went to call police. Eady testified he got scared because he was not a fighter.

Eady turned back before entering the store and saw a blue Chevrolet Silverado step side pickup being driven by a woman. He said that the person who had accosted him walked up to the truck and put his hands on the passenger side window. Eady thought that the truck driver was defendant's getaway driver. Eady saw the man get into the truck. He went inside the store and called 911.

He reported that someone tried to rob him. Eady told the operator that defendant told him he wanted his wallet. Eady said that when he walked away from the man he said, "Oh, okay, now walk away. . . . You want me to shoot you in the back[?]" Eady said he thought at first that the man was playing around, but then he saw that he was serious. Eady reported to the police that the incident had occurred about 10 minutes prior to his call. Deputy Brett Anderson was dispatched to respond to the call at 5:58 p.m.

As Deputy Anderson was en route to the attempted robbery call, he received another call of a possible carjacking. The carjacking call came in about one minute after the robbery call. Another deputy, Douglas Mukai, responded to the attempted robbery, and Deputy Anderson responded to the carjacking. Deputy Anderson arrived at the 1400 block of Watt Avenue at around 6:07 p.m. There, he met the victim, Jane Doe.

Doe, a registered nurse who had served as a combat nurse in Vietnam, was 62 years old at the time of trial. At the time of the incident, she was working as a supervisor at the Kaiser Annex off of Watt and Arden.

Doe had parked in the Safeway parking lot that day. She was driving her son's Chevy pickup because her car was having work done on it. She left work sometime between 5:15 and 5:30 p.m. When she left, she drove down the alley behind Safeway to get onto Watt Avenue. At that time of day the traffic on Watt Avenue was very heavy, so she stopped before pulling out. Out of the corner of her eye she saw a figure. She turned her head, and the next thing she knew a man was opening the door of the truck and climbing in.

Doe described the man as a black man with his hair pulled back in what looked like dreadlocks. His hair was about chin length. He had no beard and no mustache. He was wearing a short-sleeved T-shirt and a very baggy pair of pants that were gray in color. He smelled of alcohol. He said in a low, bass voice, "If you scream, I'll kill you."

Doe thought defendant must be on some kind of drug because he appeared very jittery. His body was constantly moving and much of what he said was nonsensical, although he was talking constantly. After a brief conversation, he told her to pull out onto Watt Avenue. She headed south, and he told her to turn right on the first street. With one of his hands, defendant kept touching Doe's hand and the gear shift. His other hand was inside his pants around his crotch area, moving back and forth.

At defendant's direction, Doe drove to a dead end street. It took no more than four or five minutes to get there. Doe turned off the engine and tried to jump out of the car, but defendant grabbed her around the neck and started choking her. She could not breathe, and thought she was going to die. He let go and forcefully pushed her head down to his crotch. He made her suck his penis.

After a few seconds, she pulled back. Defendant hit her in the side of the face. He told her to drive again. She started the engine, and he directed her where to drive. When they were out of the subdivision and back onto Watt Avenue, he told her to pull over into the bike lane after they had gone a short distance. He had been looking out the window as if he were looking for something. The traffic on Watt Avenue was still heavy.

He told her to pull into the driveway of a house that was either for sale or rent. The house was located at 1333 Watt Avenue. It looked empty and unkempt. She pulled into the driveway, stopped the car, and turned off the engine. He told her to get out of the car. He was holding her loosely, and she jerked away and ran from him.

Doe ran into the street and tried to stop several cars. She pounded on the windows and asked them to help her, but the people just looked straight ahead and made sure their doors were locked. She looked back and saw defendant was still chasing her, so she ran across the median into the other lanes of traffic. She looked back, defendant said, "Fuck it," and stopped chasing her. She ran through some bushes and started running toward some houses. She saw a man out in the front yard of 1410 Watt Avenue, and ran to him for help.

At trial, Doe estimated that the entire episode lasted an hour to an hour and a half, although "[i]t seemed much longer." She told the 911 dispatcher that the abduction lasted approximately 20 minutes. At trial she admitted that time had no meaning during the incident.

Deputy Anderson arrived at 1410 Watt Avenue at 6:07 p.m. Doe described her attacker as wearing a gray T-shirt and baggy, light gray sweatpants, with braids in his hair.

Deputies Anderson and Mukai met in the area of the carjacking. Because both the carjacking and attempted robbery occurred in the same area and because the descriptions of the suspect were similar, they connected the two crimes as having been perpetrated by the same person.

Thien Nguyen was visiting his friend who lived on Watt Avenue. He parked his car on a side street near his friend's house. He got to his friend's house at 4:00 p.m., and left sometime before 8:00 p.m. His car locks were broken, so the car was not locked. When he got into his car to leave, his car smelled of alcohol. He looked over and saw defendant sitting in the front passenger seat. Nguyen was scared, so he ran out of the car and back to his friend's house. As he was running, he looked back and saw defendant following him. Nguyen called 911.

Detective Bradley Jones arrived at 1333 Watt Avenue at 6:48 p.m. He conferred with the other officers on the scene, and directed CSI to process the exterior of Doe's pickup. He walked back to his car, which was parked about three houses up from 1333 Watt Avenue, to retrieve his jacket. While he was at his car, he noticed defendant walking behind him on the sidewalk. Detective Jones described defendant as a skinny black male, wearing a gray T-shirt and only one black shoe. Defendant was mumbling to himself, his eyes were bloodshot, and he appeared to be on some type of narcotics or drugs.

Detective Jones had defendant sit on the ground in front of 1333 Watt Avenue. He asked defendant for his name and date of birth. Defendant said his name was James Brown and birth date was May 8, 1973.*fn4

When Nguyen saw the police officers arrive down the street, he drove his car and pulled up next to the police car. Defendant was sitting on the grass in front of 1333 Watt Avenue. Nguyen pointed to defendant and said that defendant had just been inside his vehicle. Defendant became agitated, and yelled at Nguyen and said "bad words."

The officers looked inside Nguyen's car and found a black shoe. The shoe was a right-foot black Faded Glory lace-up work shoe. When defendant was booked into jail, he was wearing a black Faded Glory lace-up work shoe on his left foot.

Doe was transported from the hospital to 1333 Watt Avenue for a field show-up to look at someone officers had found in the vicinity. The officers had defendant stand up, and had spotlights on him. Doe seemed scared because the incident had just occurred. She had just been on Watt Avenue running away from the person that had attacked her, and the officers brought her back to the same location for the identification.

Doe observed defendant for about five minutes. Based upon defendant's clothes, his general appearance, and jittery behavior, Doe was certain defendant was the person who had accosted her. Doe told Officer Sophia McBeth-Childs, who was with her at the show-up, "That's him. I'm positive it's him." Doe said that she remembered her attacker had a thin face, but that she had not thought he had facial hair because she had not seen any on his cheeks. Doe said she thought he had braids, but that she remembered his hair was parted down the center, and that it seemed to go back as if it were braided. She said the man had been small and skinny, and had been wearing a dark gray short-sleeved T-shirt. She had thought he was wearing sweatpants, but she knew his pants were baggy. Defendant was wearing blue jeans.

The next day, Eady was interviewed and shown a stack of six photographs, including a photo of defendant taken the night before. Eady described defendant as a black male between 30 and 40 years of age, with a skinny build, possibly longer hair that was possibly tied back in a ponytail. When shown the photographs, Eady at first stated, "I don't think it's any one of these six." Then, he indicated the photograph of defendant and said that one looked familiar, but that he did not think it was the person. A second later he indicated defendant's photograph and said, "This could be him."

Defendant's blood was tested for the presence of alcohol and drugs. Defendant's blood tested negative for alcohol. It tested positive for cocaine. The prosecution's expert witness calculated that defendant would have had from .3 milligrams per liter to over 5 milligrams per liter in his bloodstream at the time of the offense. Anything over 1 milligram per liter can be lethal. It would not kill someone who is very tolerant to it. Cocaine causes euphoria. It causes a decrease in fatigue, a decrease in appetite, and nervousness. A person may become very fidgety, and can also experience sexual excitement. It can also produce paranoia, aggressive behavior, and hallucinations at higher levels or with prolonged use.

Defendant was charged in count one with carjacking (Pen. Code, § 209.5, subd. (a)), in count two with kidnapping to commit rape or forcible oral copulation (§ 209, subd. (b)(1)), in count three with kidnapping (§ 207, subd. (a)), in count four with forcible oral copulation (§ 288a, subd. (c)(2)), and in count five with attempted robbery (§ 664/211).*fn5 Two prior convictions were alleged. Defendant entered a plea of not guilty and not guilty by reason of insanity to all the charges against him. The trial court appointed Dr. Chamberlain and Dr. Nakagawa to evaluate defendant and prepare a report for the court. After the doctors submitted their reports, defendant personally withdrew his not guilty by reason of insanity plea.

The jury acquitted defendant of the charge of kidnapping for the purpose of oral copulation (count two), and found him guilty of the lesser included offense of simple kidnapping. The jury convicted defendant of all the remaining charges, and the trial court found true the prior conviction allegations. The trial court sentenced defendant to 20 years plus 100 years to life in prison.



Mental Competence to Stand Trial

Defendant claims the trial court erred by failing to order, sua sponte, a hearing as to his competence to stand trial. As evidence of his incompetence, he points to the reports of the two experts who were appointed to evaluate his mental state at the time of the offense, his claim that he had no knowledge of why he was arrested or the charges against him, his history of suicide attempts, and his bizarre behavior at the time of the offense.

A defendant is incompetent to stand trial if he or she is unable to understand the nature of the criminal proceedings or rationally to assist counsel in the conduct of the defense because of a mental disorder or developmental disability. (§ 1367, subd. (a).) A trial court is required to conduct a hearing pursuant to section 1368 into a defendant's competency to stand trial whenever substantial evidence of incompetence has been introduced. (People v. Frye (1998) 18 Cal.4th 894, 951 (Frye), overruled on other grounds by People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.) "Substantial evidence is evidence that raises a reasonable doubt about the defendant's competence to stand trial." (Id. at p. 952.) A. Additional Facts

The trial court appointed Dr. Janice Y. Nakagawa and Dr. John R. Chamberlain "to examine the defendant and investigate his mental status."

1. Dr. Chamberlain's Reports

Dr. Chamberlain was unable to answer the specific questions posed by the court in his first report. He cited the lack of collateral information as the cause of his inability. Dr. Chamberlain, who examined defendant for almost two hours, reported that defendant was "a poor historian and was minimally engaged in the interview." Defendant was "unable or unwilling" to provide an account of the offenses or the period of time leading up to the offenses. Defendant claimed he had forgotten what crime he had been accused of committing, but that his lawyer knew everything.

Defendant told Dr. Chamberlain that he was brought to the Rio Cosumnes Correctional Center because he did not take his medicine. Defendant said he was receiving psychiatric medications, but he forgot the names of the medicine. Defendant claimed he did not know or had forgotten most of his medical history. He did not remember the highest grade he had completed, but said he did not graduate from high school. He said he had been in juvenile hall, but forgot why he was there or how many times he was there. He admitted he had been in prison twice, then said he was only in prison once. He claimed he had experienced auditory hallucinations, but did not know if he had ever experienced visual hallucinations.

Dr. Chamberlain gave defendant a SIMS psychological test designed to detect evidence of feigned or exaggerated neurological, cognitive mood, and psychotic symptoms. Defendant responded true to all items, indicating he was feigning or exaggerating symptoms of all types.

Dr. Chamberlain submitted a supplemental report after receiving additional information. In the supplemental report Dr. Chamberlain stated that defendant met the diagnostic criteria for Schizophrenia Paranoid Type and a Depressive Disorder Not Otherwise Specified. The schizophrenia was characterized by hallucinations and paranoia, but those symptoms were well controlled. The depressive disorder was characterized by depressed mood and suicidal thought. Defendant had attempted suicide three years before, and reported three to five suicide attempts. Dr. Chamberlain noted the significant difference between defendant's behavior as documented and his presentation during the evaluation, and stated that this led him to question the validity of defendant's presentation during the evaluation.

Dr. Chamberlain concluded that defendant suffered from Schizophrenia Paranoid Type at the time of the offense. His disorder was characterized by hallucinations, paranoia, and disorganized speech at the time of the offense. Nonetheless, Dr. Chamberlain opined that defendant had: (1) the ability to understand the nature and quality of his acts; (2) the capacity to predict the natural and probable consequences of his acts; (3) the capacity to distinguish right from wrong at the time of the offense; (4) the capacity to make a plan of action; (5) the capacity to act in a purposeful, goal directed way to execute a plan of action; (5) the capacity to act in a considerate, calculating, and controlled way; and (6) the capacity to understand and consider the lawful rights of others. Part of the additional information reviewed by Dr. Chamberlain were records from the jail psychiatric services. Those reports showed that in the days after defendant's arrest he complained of being suicidal and needing his medications. His initial psychiatric assessment noted that defendant reported suicidal thoughts and auditory hallucinations. However, his thought process was linear and coherent. He had only a vague recollection of the actions leading to his arrest, but the evaluation concluded that his amnestic periods were likely the result of substance use. Defendant's subsequent progress reports indicated he continued to claim no recollection of why he was in jail.

Defendant was diagnosed with paranoid schizophrenia, and was started on Zyprexa, Seroquel and Wellbutrin. After he was started on medication, he reported being able to ignore the auditory hallucinations. Defendant's progress reports from January 13, 2006, to January 19, 2007, show consistent improvement. In his January 13, October 9, and November 21, 2006, progress reports he reported no visual hallucinations or suicidal thoughts, and either no or few auditory hallucinations. The last progress report, dated January 19, 2007 (more than two years prior to trial), stated that defendant reported he was all right. "He was pleasant and cooperative. His mood was normal. His thought process was linear with no evidence of a thought disorder. He referred to auditory hallucinations but seemed to indicate the incidence was lower. He denied visual hallucinations and had no paranoia. He was stable on his current regimen. He was to be continued on Seroquel and Wellbutrin."

2. Dr. Nakagawa's Report

Dr. Nakagawa's report was dated February 15, 2007. She described defendant as being "not very forthcoming" in his evaluation. Dr. Nakagawa believed that the manner in which defendant responded to questions raised doubts as to his genuineness in cooperating in the assessment. She believed defendant was "making efforts to present in a negative way for secondary gain," and that his responses were contrived. Dr. Nakagawa asked defendant about his auditory hallucinations, and he told her that he was not experiencing them currently. She asked what the voices said to him, and he said he forgot. Dr. Nakagawa opined that defendant's thought processes did not suggest he was manifesting or suffering from psychotic thinking at the time.

Dr. Nakagawa summarized: "Overall, [defendant] was disinclined to be very cooperative in this assessment. There was an emphasis on his part of not remembering or not knowing what was going on. The manner and tenor of his responses suggested he was presenting in the worst possible light for secondary gain. He was probably much more aware than he was willing to acknowledge but was being rather uncooperative and claiming poor memory or not knowing to avoid taking responsibility for his actions (i.e., malingering)."

Dr. Nakagawa performed two tests on defendant. The first was the TOMM, a neuropsychological test to assess for malingering and to differentiate between malingering and dementia, low intellectual functioning, brain damage, and/or memory problems.*fn6 Defendant's results were indicative of malingering.

Dr. Nakagawa also performed the M-FAST test, which screens people who are suspected of malingering psychiatric symptoms in a forensic setting. Defendant's results indicated he was likely malingering. Nevertheless, Dr. Nakagawa stated that the data indicated defendant suffered from a mental disorder that was stabilized with medications. Defendant's diagnosis appeared to be Paranoid Schizophrenia, but Dr. Nakagawa opined that a more likely diagnosis was Psychotic Disorder Not Otherwise Specified, likely secondary to drug use.

Dr. Nakagawa's conclusion was that even though defendant was pleading not guilty by reason of insanity, "he likely has much more knowledge, awareness, and recollection of himself presently and at the time of the instant offense than he is willing to acknowledge."

3. Actions at the Time of the Offenses

Doe told Officer Sophia McBeth-Childs that defendant rambled the whole time he was in the car, and that his ramblings were nonsensical. Eady described defendant as pointing an imaginary gun at him. Nguyen stated that defendant walked back and forth in front of his friend's house, swaying like a drunk person.

4. Defendant's Behavior During Trial

Defendant had several interactions with the trial judge during the course of the trial, and these interactions are evidence of his competency to stand trial.

When defendant dropped his not guilty by reason of insanity plea, the following exchange occurred:

"THE COURT: Mr. Smith, do you understand that [you are dropping the insanity plea]?


THE COURT: At one point, you entered dual pleas, that is not guilty and not guilty by reason of insanity. Ms. Rogers is indicating that you no longer wish to pursue the not guilty by reason of insanity. So you are dropping that, is that correct?


THE COURT: So, that's your desire?


THE COURT: So you're just entering not guilty pleas so you are denying the allegations that appear in the amended information?

THE DEFENDANT: Yes, your Honor."

At one point during the trial the trial judge was informed that defendant had not been given his Wellbutrin that morning. Defendant told his attorney that he was fine, and that he would let her know if he was affected by not taking the medicine. His attorney told the court that the medication was an anti-anxiety medication, so the effect of not having the medication would be nervousness and anxiety. When his attorney told the court that he was fine, the defendant said, "Yes." His attorney stated that he appeared to be okay.

At the close of evidence, the trial court addressed defendant:

"Mr. Smith, obviously, you chose not to testify in your case. I assume that after thorough discussions with your attorney, Ms. Rogers, you made the decision that you do not want to testify in your case, is that correct?

THE DEFENDANT: That's correct, your Honor.

THE COURT: That you decided you wanted to rest on the state of the evidence and exercise your right to remain silent and chose not to testify, correct?

THE DEFENDANT: Yes, your Honor."

At the same time, the court addressed defendant as to his desire to waive his presence for the informal review of jury instructions. The following exchange occurred.

"THE COURT: Is that correct, Mr. Smith?

THE DEFENDANT: Yes, your Honor.

THE COURT: You do not want to be here while we informally review instructions, but of course, you will be here in open court when I ask for any objections or discussions about what I intend to give?

THE DEFENDANT: That's true, your Honor."

Still later, after the jury indicated it had reached a verdict, the trial court asked defendant if it were correct, as his attorneys indicated, that he wished to waive his right to a jury trial of the two priors, and defendant responded, "That's correct." A little later the trial court stated again that defendant had indicated a desire to waive his right to have a jury trial on the priors and asked, "Do you understand the rights that you have?" The defendant replied, "Yes, ahum, yes." The court asked again if he waived his right to have the jury make the decision, and the defendant replied, "Yes." The court said, "So you want the Court to make that decision?" Defendant replied, "Yes." The court asked, "Instead of this jury, correct?" Defendant replied, "Yes." The court then explained what would happen and asked, "Understood?" The defendant replied, "Yes." The court asked, "Do you agree with that?" Defendant replied, "Yes."

B. Competency Requirements

The federal constitutional test of competency is whether a defendant "'has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding-and whether he has a rational as well as factual understanding of the proceedings against him.'" (Dusky v. U.S. (1960) 362 U.S. 402 [4 L.Ed.2d 824, 825].)

There are significant differences between a claim of incompetency and a plea of not guilty by reason of insanity. (Medina v. California (1992) 505 U.S. 437, 448 [120 L.Ed.2d 353, 365].) The question of competency emphasizes a defendant's "'capacity to consult with counsel and to comprehend the proceedings, and . . . this is by no means the same test as those which determine criminal responsibility at the time of the crime.'" (Ibid.) A plea of not guilty by reason of insanity "presupposes that the defendant is competent to stand trial and to enter a plea." (Ibid.)

Relevant factors to be considered by a trial court in determining competency to stand trial are a defendant's irrational behavior, demeanor at trial, and any prior medical opinion on competence. (Drope v. Missouri (1975) 420 U.S. 162, 180 [43 L.Ed.2d 103, 118].)

The test of competency under California law is similar to the federal test. In California a defendant is incompetent to stand trial if, as a result of mental disorder or developmental disability, he or she is unable to understand the nature of the criminal proceedings or to assist counsel in the conduct of the defense in a rational manner. (§ 1367.)

C. Trial Court's Sua Sponte Duty

As stated, ante, a trial court's duty to conduct a competency hearing sua sponte arises whenever substantial evidence of incompetence, i.e., evidence that raises a reasonable doubt about defendant's competence to stand trial, is introduced. Competency is not the same as mental health. (People v. Kurbegovic (1982) 138 Cal.App.3d 731, 749, fn. 14.) A trial court's duty to inquire into a defendant's competency does not arise when there is merely a doubt as to the existence of a mental disorder or developmental disability that does not implicate competency to stand trial. (People v. Romero (2008) 44 Cal.4th 386, 420.) "[T]o be entitled to a competency hearing, 'a defendant must exhibit more than bizarre . . . behavior, strange words, or a pre-existing psychiatric condition that has little bearing on the question of whether the defendant can assist his defense counsel. [Citations.]' [Citation.]." (People v. Lewis (2008) 43 Cal.4th 415, 524.)

D. Analysis

We find no substantial evidence in the record that raises a reasonable doubt as to defendant's ability rationally to assist counsel in the conduct of his defense or to understand the nature of the criminal proceedings.

Even though Dr. Chamberlain's supplemental report concluded that defendant was suffering from Schizophrenia Paranoid Type and Depressive Disorder Not Otherwise Specified, he also noted that defendant's symptoms of hallucinations and paranoia were well controlled. Moreover, the jail psychiatric services records, on which Dr. Chamberlain's report relied, indicated that defendant's thought processes were consistently linear and coherent, that his periods of amnesia were likely the result of drug use, that on medication he had no visual hallucinations or paranoia, that he could ignore his auditory hallucinations and that they were less frequent, and that he was stable.

Dr. Chamberlain was asked to make certain determinations relative to whether defendant was legally insane at the time of the offenses. The expert's opinion considered defendant's mental state at the time of the offenses, and not his competence to stand trial. To the extent Dr. Chamberlain's report indicated defendant suffered from a mental illness, it also indicated defendant's illness was well controlled by medication at the time of the report. The court was justified in inferring that defendant's mental illness was likewise well controlled at the time of trial.

Defendant's actions at the time of the offenses likewise did not provide evidence that he was incompetent at the time of trial. To the extent that defendant's conduct at the time of the offenses could have been the result of a mental illness, the evidence indicated such illness was under control at the time of trial. Moreover, there was no evidence tendered that a defendant suffering from Paranoid Schizophrenia or Depressive Disorder Not Otherwise Specified would be unable rationally to assist in the conduct of his defense or understand the nature of the proceedings against him. In fact, when defendant was directly addressed by the court during trial, his answers were appropriate, coherent, and indicated he understood the nature of the proceedings.

We accord deference to a trial court's decision on whether to hold a competence hearing because it has the opportunity to observe the defendant during trial. (People v. Lewis, supra, 43 Cal.4th at p. 525.) We find no error on the part of the trial court in deciding not to hold a competency hearing in this case.


Admission of DNA Evidence Despite Kelly Challenge

Defendant argues the trial court should have stricken the testimony of the prosecution's two DNA experts on the ground the prosecution failed to prove that in this case the correct and accepted scientific technique was actually followed pursuant to Kelly, supra, 17 Cal.3d 24.

In Kelly, the Supreme Court articulated a three-prong test for the admission of expert testimony based upon the application of a new scientific technique: (1) the reliability of the technique must be sufficiently established, (2) the witness providing the evidence must be properly qualified as an expert, and (3) the evidence must establish that in the particular case, the correct scientific procedures were followed. (17 Cal.3d at p. 30.)

Defendant argues the trial court should have stricken the DNA evidence because the prosecution did not satisfy the third Kelly prong. The trial court's denial of defendant's Kelly motion was based on both the merits and on defendant's delay in bringing the motion.

A. Additional Facts

Defendant brought an in limine motion to exclude all DNA evidence. In defendant's written motion, he requested that a Kelly prong three hearing be held concurrently with the trial testimony, and reserved his right to assert an objection to admissibility during trial. He requested this because he claimed he could not raise an objection to the procedures used until the prosecution disclosed the information necessary to determine whether correct procedures were followed.

At a discussion of the in limine motion, the following occurred:

"THE COURT: . . . And then there's a defense motion to exclude all DNA evidence. This is called the Kelly Prong Three. I believe within that motion, Mr. Lynch [defense counsel], you're just asking . . . the Court to exclude the People's DNA evidence, depending on how the evidence turns out in terms of the procedures that the lab used?

MR. LYNCH: That's correct, your Honor. In every case in which scientific evidence is presented, there's an opportunity to challenge that evidence as not being applied or actually used according to correct scientific procedures. That's Kelly Prong Three. We're asking to hear that motion to exclude DNA evidence concurrently with the trial testimony.

The Court can listen to the experts and evaluate whether there's an issue with regards to following correct scientific procedure, at which time we would potentially ask the Court to exclude the DNA, and disregard the evidence.

THE COURT: Mr. Asker, any objection to that procedure?

MR. ASKER: Yes. I'm objecting to that procedure. That's just a way for Mr. Lynch to essentially attack the lab in front of the jury and go into areas that are not relevant for the jury. [¶] I would ask that that be separated out in a 402 Hearing.

MR. LYNCH: Your Honor, if I could perhaps make my position clear. I'm not intending to ask anything of Mr. Herbert for purposes of that motion, that I wouldn't ask in front of the jury. . . . [I]f there's something that this witness did that turns out not to be generally accepted in the scientific community, I would want the opportunity to exclude that evidence.

And we can't be expected to know ahead of time what those things might or might not be, but we would be precluded from asking the Court to exclude that if we didn't have this hearing sort of concurrent with the trial, as I propose."

The court asked for a written response. Thereafter, the trial court noted that the People had responded, arguing that any Kelly prong three hearing should be conducted outside the jury's presence. Defense counsel again argued that he would be asking only basic questions that properly would be heard by the jury. Defense counsel stated that if the prosecutor had an objection that the information he was eliciting was irrelevant for the jury, they could have an Evidence Code section 402 hearing.

The trial court asked: "So at the present time, you're not moving to exclude the DNA based on a prong three violation, that is, the procedures were not correct?" Defense counsel responded: "I'm not moving at this time because I don't know whether the procedures have been followed correctly. [¶] If it turns out that there's something that my experts or this expert by the prosecution says that shows that that has not been done, then I wish . . . to retain my rights, rather, to object and exclude the DNA evidence."

The prosecutor then stated his belief that defense counsel was not intending to make the trial a Kelly prong three hearing, and that if his questions became such a hearing, the prosecutor could object. The prosecutor stated that with that understanding, he would object if the hearing should be conducted outside the presence of the jury.

The trial court then summed up its understanding that the prosecutor would question his expert on the science and the results, "And then Mr. Lynch may cross examine on the procedures, but if, in fact, it turns out that there is a problem in how they proceeded towards their analysis, then he'll ask to approach, and if necessary, there can be a full-blown hearing, but that would be outside the presence of the jury on that issue. That's what I'm hearing both of you saying. Am I correct?"

Defense counsel responded: "Yes. I am saying that if . . . at the conclusion of the testimony of the DA's expert or my experts or I think there's been established that there were problems that were more than just weight of the evidence issues that actually went to a Kelly issue, I would move to approach at some time out of the presence of the jury and ask to have the DNA evidence excluded. And that may necessitate more testimony or we maybe [sic] able to submit it on what has already been heard."

The court stated, "I think that's a proper procedure[,]" and asked the prosecutor if he agreed. The prosecutor responded, "Yes. Again, with the caveat that this is not a Kelly hearing. . . . It's trial. And there is a limit to relevance as far as how much Mr. Lynch can question the analyst about procedures. . . ." The court interrupted, "You're saying the same thing, I think." That ended the Kelly discussion. Thereafter, expert DNA testimony was presented on both sides as follows.

Jeffrey Herbert, a criminalist with the Sacramento County District Attorney's Crime Lab, testified regarding the DNA evidence he analyzed from the defendant's penal swab to determine the likelihood that it contained the victim's DNA. He testified that he had a BA degree in biology, and that he had worked in the district attorney's crime lab for over 19 years. He had been doing DNA analyses for nine years, had performed a DNA analysis in several hundred cases, and had testified in court as an expert with regard to such analyses more than 30 times.

On voir dire, Herbert admitted that although he had taken four or five courses dealing with DNA testing and theory, none of those courses lasted more than a week. He had taken one, two-day course on the theories underlying the statistics for DNA interpretation. In describing his level of expertise in statistics with regard to DNA, he stated: "I'm not a mathematician, but I'm trained to apply the formulas." Herbert agreed that his level of expertise was in the application of rules, rather than understanding the theories.

Herbert testified that because DNA is the same for about 99.9 percent of humans, DNA testing looks at a very small region where variations occur. Specifically, the lab's testing looks at 15 different markers or "loci" on the various pairs of chromosomes in a sample of DNA. Herbert testified that in performing a short tandem repeat (STR) test he looks for repeating four base units to establish a profile. Where a person has four repeats on one chromosome and six repeats on another chromosome, their profile is a four, six. These repeating base units are genes and are technically called alleles. They come in pairs, one from each parent.

Herbert was given a penile swab from the defendant to analyze for DNA. The DNA sample from defendant's penis resulted in only a partial profile due to the low level of DNA present. Instead of the usual 15 markers, there were only seven. The alleles show up as peaks on a read-out. The lab does not analyze any peak below 75 relative fluorescent units (rfu), because at that low level, artifacts can show up that are not really DNA. If the DNA sample contains only one person's DNA, there will normally be two peaks, representing the allele at each location or locus of the chromosome in the pair. The sample taken from defendant's penis contained three peaks at some loci, indicating the sample contained a mixture of DNA.

A statistical analysis is applied to the profile to assess the chance that a randomly selected person would match the DNA sample by coincidence. Herbert explained that in order to determine the statistical significance of a match between the subject and the sample DNA at various loci, he takes the frequency of each of the alleles at each marker, and applies the product rule. Each allele is assigned a fraction that illustrates the frequency with which that allele occurs in the general population. The frequency was determined by the FBI, which established a database that is used nationwide for the purpose of calculating allele frequencies.

Where the DNA sample comes from a single source, the statistical analysis is called a random match probability, which answers the question: "What is the chance that one person selected at random . . . would happen to match at all of the profiles as the crime scene evidence[.]" There are three steps to the analysis. First the frequency of the alleles is determined. Second the frequency of the profile (i.e., the frequency that the combination of alleles occurs at a particular locus) is determined. At a locus with two alleles, one would multiply the product of the frequency of the two alleles by two to determine what percent of the population would be expected to have those two alleles at that locus.*fn7 The third and final step is to multiply all of the frequencies at each locus together and divide by 10.

When testing an unresolved (i.e., not separated) mixture, as in this case, the correct statistical analysis is called the Combined Probability of Inclusion (CPI), rather than the random match probability. The question to be answered is: "what is the chance that one person selected at random would be considered, '[i]ncluded as a possible contributor'?" Steps one and three are the same as the random match probability. Step two is different. At a locus with three alleles, Herbert added up the three frequencies and squared it, to determine what percent of the general population would be expected to have some combination of those three peaks. Having determined the frequencies and applied the product rule, Herbert concluded that 1 in 560,000 African Americans could be included as a potential contributor to the mixture, and 1 in 95,000 Caucasians could be included as a contributor.

On cross examination, Herbert was directed to a particular locus at which a 12 and a 13 were detected in the sample. Doe had an 11 and 12 at that locus. Defendant had a 12, 13 at that locus. Herbert included this locus in the statistic because Doe's 12 could have been there, even though defendant could have been the source of both alleles. The same thing occurred at two other loci (D19 and vWA).

Dan Krane, a biology professor with a PhD in biochemistry, testified on behalf of defendant. Krane agreed with Herbert that the DNA sample taken from defendant contained a mixture from two and possibly three people. Krane conceded that the standard statistical formula to be used on a sample of mixed DNA was the CPI or its reciprocal, the Combined Probability of Exclusion (CPE). He opined, however, that the CPI calculation did not result in a correct statistic when used on a sample with extensive allelic dropout, and that in any event Herbert's statistical application was done incorrectly, and that the resulting number was "exceptionally misleading[,]" attaching a much greater weight to what was observed than was justified.

Krane testified that in the CPI calculation, only those persons who had the exact same alleles as were present in the sample, and no different alleles, should have been factored into the equation. This is because the CPI calculation predicts the chance that a randomly chosen person would have exactly the alleles in the sample, and no different alleles. However, Herbert included Doe as a contributor at loci from which she should have been excluded because she did not have the exact alleles present in the sample.

For example, the evidence sample showed a 12, 13, at D16. Doe had a profile of 11, 12, and defendant had a profile of 12, 13. Krane testified that at D16 Doe did not exactly match the evidence sample, yet Herbert applied a weight of one in four at D16, when the weight should have been one. Similar mistakes occurred at other loci. Krane stated that Herbert's 1 in 95,000 statistic was "completely misleading and inappropriate."

Krane concluded that on the one hand, if one were to accept that many alleles were not detected because of dropout, then it is difficult if not impossible to exclude anybody as a potential contributor. On the other hand, if one maintained that there had not been much allelic dropout, then Doe would be excluded as a possible contributor to the penile sample. The simplest conclusion is that the evidence is inconclusive.

Krane opined that the CPI is generally accepted in the scientific community as the appropriate method to use in a sample that is an unresolved mixture. However, the way Herbert applied the CPI is not generally accepted, and there is clear language in an article by the DNA Commission of the International Society of Forensic Genetics saying that the approach by Herbert is "absolutely incorrect." The article states that the CPI statistic cannot be applied to a mixture with allelic dropout in a manner that is consistent with the calculation.

Keith Inman, a forensic scientist, also testified on behalf of defendant. Inman testified that CPI is an inappropriate analysis in a situation such as this, where the sample tested is a mixture and not all of the types are detected. He testified that when looking at an intimate sample, i.e., one that is taken from the body of an individual whose type is known, the only relevant alleles are those that are foreign to the individual. Thus, for example, at the locus D16, defendant's type was 12,13, Doe's type was 11, 12, and the sample from the penile swab showed a 12, 13. Because defendant's profile accounts for both the alleles at this locus, the sample gives no information about who the other donor might be. As a result, it was inappropriate to use this locus in the statistical analysis that calculated the likelihood that Doe was included as a contributor to the mixture.*fn8 Using such a locus would make the evidence appear more significant than it is.*fn9 Inman testified that his approach was widely accepted in the scientific community.

Locus D3 was likewise uninformative because the sample showed only one peak at 16. Defendant's profile was a 14, 16. Herbert's analysis assumed that only a person with a 16, 16 profile would be included as a potential donor, which means defendant himself would have been excluded as a donor, which was certainly not the case. Thus, D3 was also an uninformative locus. Including that locus in the statistic exaggerated the value of the evidence.

Inman did not believe that there was any other statistic or probability that could be assigned in this case. He opined that because the level of DNA was so low in the sample, and because it was uncertain how many donors contributed to the sample, the results should have been reported as inconclusive. He stated that if one were to use the CPI in this case, the correctly calculated statistic would be 1 in 13 Caucasians. However, that conclusion depended upon the assumption that there were only two donors to the mixture, and there was no basis upon which to make that assumption.

In rebuttal, the prosecution called Mary Hansen, who was the supervisor and DNA technical lead for the biology unit of the Sacramento County Crime Lab. She reviewed Herbert's work on this case. She testified that Herbert followed established lab protocols in his analysis and reporting of his findings. She stated that the CPI method is an accepted method for calculating a mixed sample when there are no clear minor or major contributors.

Hansen stated that when Herbert applied the CPI, he included both donors, and because he included both donors, he was able to include "many more loci than had he focused on one donor versus the other."

Hansen did not agree with Krane that the evidence was inconclusive because there was enough information to either include or exclude an individual as a potential contributor. She stated that the CPI was strictly for situations in which one is testing a mixed sample and making allele calls only.

She stated that when she applied the CPI calculation, the result was that one in 47 Caucasians would be included as a potential contributor. In applying the formula, she looked only at locations where there were alleles foreign to defendant. The difference between her calculation and Herbert's was that he was answering the question, "what is the chance that a random two individuals would be in this mixture[,]" whereas she was determining the probability that a Caucasian would be included as a potential contributor. She agreed that if Herbert testified that the 1 in 95,000 statistic was trying to answer the question, "What are the chances that one person selected at random would be included," he would be wrong.

Hansen also stated that in this case the more appropriate calculation would be to use just the allele frequencies of the foreign alleles, and that under that calculation, the frequency would be 1 in 66.

After both sides had rested, but before the jury was instructed, defense counsel raised the Kelly prong three issue again. He argued that he was not contesting Herbert's analysis of the DNA that resulted in the conclusion that Doe could have been included in the sample mixture, but that he was contesting Herbert's statistical interpretation of the results. He argued that it was the prosecution's burden to prove that the statistical analysis that was done here would be considered generally accepted in the scientific community as being appropriate.

Defense counsel framed the issues as follows: "First, I want to make it very clear that the [CPI] is generally accepted. It's generally accepted for use in mixtures. It's generally accepted for use in mixtures when only allele calls are made. And when there's no attempt or ability to separate out two or three or more donors. [¶] The question for this Court is whether it's generally accepted in the scientific community to do any statistic, including the CPI, and applied in any of the manners it was applied when there had been substantial dropout as in this case, and where the potential donor's alleles, Ms. Doe's alleles, are in fact missing from the evidence profile." Defense counsel reiterated that the question was not whether Herbert or Hansen followed their lab protocols, but whether the statistics as applied in this case are generally accepted in the scientific community.

In response, the prosecutor argued that a Kelly prong three hearing should not be conducted in front of the jury, and that Hansen had clearly established that the CPI was used in California.

Defense counsel countered that under Kelly, an expert must understand the technique and its underlying theory and be thoroughly familiar with the procedures used to implement the technique. He argued that when Hansen was asked to describe her level of expertise in statistics she said, "I'm familiar with how to apply the appropriate statistical formula to determine the frequencies for the profiles that we generate in the unit." However, her expertise was based on a five hour course that dealt with mixtures, and she was not aware whether the course dealt with the specific situation where the mixture had substantial allele dropout. She stated she was unaware of any labs forbidding the use of the CPI formula with this kind of mixture, but she never contacted any other labs or made an effort to find out what was appropriate.

The trial court made the following ruling:

"Here's the problem with Kelly prong three. As I remember our in limine motion and ruling and the agreement, was that there was not a specific problem that was identified regarding Kelly prong three.

The agreement was, should such a problem arise that it would be brought to the party's attention[.] My view is . . . in time to do something about it. Instead, what happened here is there was examination of various witnesses regarding the procedures used in this case, the CPI, but I don't remember ever hearing an objection in terms of we're objecting under Kelly three, where we -- the Court may need to take additional evidence or they -- there may need to be additional testimony on the specific procedures that were used if they were in compliance with Kelly three scientific methodology.

And the difficulty that I have is that was not done in this case. So what's being asked of me is to review the entire transcript after the fact, and determine whether or not the People, as the proponent . . . met their burden of proof that Mr. Herbert needed to follow correct scientific procedures.

As I reviewed Herbert's testimony last night, it seems to me it was almost a given that the -- that the procedures he used, there's no issue, per se. There is lots of questioning and concern about, should he have used that procedure in this particular case.

But the concern, like I said, is I don't think there was enough of a record for me to make a ruling in favor of the defense as it -- as it is because it was never brought to the prosecutor's attention to give him time, if there was perceived to be a deficiency in Kelly prong three, to remedy that deficiency. . . .

I find there was sufficient evidence presented to support a Kelly prong three analysis, with the caveat as I mentioned at the beginning, that if there are to be specific objections that the evidence as presented did not follow correct scientific procedures, that objection would have been lodged at the proper time. So it allows both sides to present additional evidence so the Court would have a complete record of what the specific objection was and the facts to make that determination. And that was not done, in my view, in this case.

So the motion is denied."

Defense counsel asked if the motion was denied because it was not raised, and the trial court said no. The court stated that defense counsel did not appear to object to Herbert's methodology, but objected to how Herbert came up with his numbers. The court told defense counsel, "there was an acceptance by you of the methodology he performed in this case. You're taking issue with how he arrived at those numbers or whether he should have arrived at those numbers. So it seems to me based on that record, there was sufficient evidence presented to support a Kelly prong three." The court went on to state: "when you questioned Mr. Herbert, you didn't challenge specifically each step of his methodology to give the prosecutor at least notice to respond and correct any deficiencies, and you didn't bring it to my attention in a timely manner so that I could have a complete record to review. . . . So . . . that's the other reason for the denial."

B. Analysis

1. Kelly Motion to Strike was not Untimely

The People first argue that the trial court correctly denied defendant's motion to strike based on the failure to satisfy prong three of Kelly because the motion was untimely. We disagree. We find the challenge was timely, and that the parties apparently did not come to a meeting of the minds as to the procedure that would be used. Such a misunderstanding should not have prevented defendant from challenging the admission of evidence.

Defendant's written pretrial motion made clear that: (1) he was requesting a Kelly prong three hearing, (2) he was specifically challenging the statistical interpretation of the results of the DNA testing, (3) he wanted the hearing to be held concurrently with the trial testimony, and (4) he reserved the right to assert an objection to admissibility during trial.

At the in limine hearing, defense counsel reiterated that the court could listen to the expert testimony at trial and evaluate whether the correct scientific procedure was used, and the defendant would potentially ask the Court to exclude the evidence. The prosecutor objected on the ground that the proposed procedure would be a way for the defense to "attack the lab in front of the jury and go into areas that are not relevant for the jury."

Defense counsel then clarified that he would not ask the prosecution's expert anything that the jury could not properly hear, but that he wanted the opportunity to exclude the evidence if it turned out the expert's procedures were not generally accepted in the scientific community.

At a subsequent hearing, defense counsel expressed his understanding that the prosecutor did not have an objection to hearing the Kelly motion concurrently with trial testimony, "except in as far as he is concerned about items of relevance." He stated his belief that such objections to relevance could be dealt with on an objection by objection basis. He stated that he was not presently moving to exclude the DNA evidence on a Kelly prong three violation, but that he wanted to retain his right to object and exclude the evidence if it turned out the prosecution's expert had not followed generally accepted procedures.

When the court asked if the procedure would be that defense counsel would ask for a full-blown Kelly hearing if he perceived a problem with the expert's procedures, defense counsel responded, "Yes. I am saying that if . . . at the conclusion of the testimony of the DA's expert or my experts or I think there's been established that there were problems that were more than just weight of the evidence issues that actually went to a Kelly issue, I would move to approach at some time out of the presence of the jury and ask to have the DNA evidence excluded. And that may necessitate more testimony or we maybe [sic] able to submit it on what has already been heard."

The prosecutor agreed to the procedure "with the caveat that this is not a Kelly hearing[,]" and again expressed his concern that defense counsel's questioning would be limited by relevance.

Defense counsel's statements indicate his understanding was that despite what the prosecutor said, the trial testimony regarding DNA evidence was in fact a Kelly hearing, and that the defense reserved the right to move to exclude the prosecution's DNA evidence if the prosecution failed to establish that accepted procedures had been followed. Defense counsel said that he would approach "at some time out of the presence of the jury and ask to have the DNA evidence excluded." He acknowledged that more testimony might be required, but also stated that the matter might be submitted on what had been heard.

The transcript thus indicates that defense counsel, the prosecutor, and the trial court may not have had a meeting of the minds on the procedure that would be followed. However, defense counsel made the in limine motion at the proper time, and did not waive the Kelly objection.

2. Prosecution's DNA Evidence Should have been Stricken In the typical case, where DNA evidence is recovered from the crime scene or from the victim, an evidentiary sample is analyzed to determine if it is consistent with the defendant's profile. In this case, the sample was taken from the defendant's body. Therefore, the sample was analyzed to determine if it was consistent with the victim's profile.

A determination that the evidence sample was consistent with the victim's DNA profile would be of little significance if the evidentiary profile also matched the profile of many or most other human beings. (People v. Johnson (2006) 139 Cal.App.4th 1135, 1147.) The probability that the foreign DNA collected from defendant's penis belonged to Doe depended on the rarity of the genetic profile of the sample in the general population. (Ibid.) Accordingly, the 1 in 95,000 number put forth by Herbert meant it was very likely that the foreign DNA on defendant's penis belonged to Doe, the 1 in 47 or 1 in 66 number set forth by Hansen made it less certain, and the 1 in 13 number that Inman stated would be correct if one assumed there were only two donors to the mix, made it even less certain.

The trial court based its denial of the Kelly motion on the lack of timeliness and on the ground there was sufficient evidence to support the expert testimony. The trial court found that defendant had no objection to Herbert's methodology, but only to his statistical analysis. On this basis, the trial court found there was sufficient evidence to counter a Kelly prong three objection.

To the extent the trial court based its decision on the ground that the statistical analysis was not subject to screening under Kelly, it was clearly wrong. "'To . . . leave it to jurors to assess the current scientific debate on statistical calculation as a matter of weight rather than admissibility, would stand Kelly-Frye on its head.'" (People v. Venegas (1998) 18 Cal.4th 47, 83 (Venegas), see also People v. Johnson, supra, 139 Cal.App.4th at p. 1147 ["The computation step of DNA analysis falls 'under the Kelly/Frye umbrella.'"].) The statistical calculation phase requires the evidence be screened to assure that "(1) the methodology used is generally accepted in the scientific community, and (2) the calculations in the particular case followed correct scientific procedures." (Venegas, supra, at p. 84.)

"The Kelly test is intended to forestall the jury's uncritical acceptance of scientific evidence or technology that is so foreign to everyday experience as to be unusually difficult for laypersons to evaluate." (Venegas, supra, 18 Cal.4th at p. 80.) When determining whether the third Kelly prong has been satisfied, we assume that the methodology used is generally accepted by the relevant scientific community. (Id. at p. 81.) The issue is whether the procedure actually used complied with that accepted methodology. Proof of that compliance requires "that the testifying expert understand the technique and its underlying theory, and be thoroughly familiar with the procedures that were in fact used in the case at bar to implement the technique." (Ibid.)

"[R]review of a third prong determination on the use of correct scientific procedures in the particular case requires deference to the determinations of the trial court." (Venegas, supra, 18 Cal.4th at p. 91.) In reviewing the trial court's ruling, we are "required to accept the trial court's resolutions of credibility, choices of reasonable inferences, and factual determinations from conflicting substantial evidence." (Ibid.) However, the trial court abuses its discretion if the factual findings critical to its decision are not supported by the evidence. (People v. Cluff (2001) 87 Cal.App.4th 991, 998.) Where, as here, the trial court's exercise of discretion is based on the facts of the case, such discretion will be upheld only if the determination is within the range of the evidence presented. (In re Marriage of Ackerman (2006) 146 Cal.App.4th 191, 197.)

We conclude the evidence was insufficient in this case to establish that Herbert, the prosecution's expert, complied with accepted methodology in determining the statistical frequency that someone selected at random could be considered a possible contributor to the DNA sample taken from defendant's penis. Our conclusion is compelled by the fact that there was no evidence that Herbert understood the statistical calculation he performed and its underlying theory. That Herbert's statistical calculations were wrong seems obvious from the fact that the prosecution's own witnesses offered three different statistics, and that Herbert's initial calculations were wildly different from his later calculation.

Herbert's own testimony regarding his understanding of statistics was: "I'm not a mathematician, but I'm trained to apply the formulas[,]" and that his level of expertise was in the application of rules rather than the understanding of the theories or where the formula came from. His training in statistics for DNA interpretation consisted of a single two-day course on the theories underlying the statistics for DNA interpretation, but he could not remember how much of the course dealt with the statistics to be utilized when dealing with a mixture. In that course, the time spent on mixture statistics was less than a day and perhaps as little as half an hour.

Herbert's statistical analysis was flawed in at least two respects. First, Herbert's frequency estimates should have included only alleles that were foreign to defendant. The statistical calculation was attempting to measure the frequency that an unknown donor would be included in the mixture. Including alleles that could have been contributed by defendant statistically increased the infrequency of the CPI results. Hansen even agreed that this was not the more appropriate application of the statistical analysis.

Second, the CPI was an improper statistical analysis to be used in this case because Herbert knew he was dealing with a mixture that had significant allelic dropout. The CPI calculation accounts for only the alleles that are present in the equation. It does not take allelic dropout into account. As the DNA Commission of the International Society of Forensic Genetics has pointed out, the probability of exclusion "entails a binary view of alleles, meaning that alleles are only present or absent, and further if present are observed." (Gill, et al., DNA Commission of the International Society of Forensic Genetics: Recommendations on the Interpretation of Mixtures (2006) 160 Forensic Science International 91.) The CPI calculation used by Herbert is merely the reciprocal of the probability of exclusion, thus has the same limitations.

3. No Prejudice

Erroneous admission of the prosecution's statistical analysis of the DNA results constitutes Watson*fn10 error. (Venegas, supra, 18 Cal.4th at p. 93.) Watson error means that reversal is required "only when the court, 'after an examination of the entire cause, including the evidence,' is of the 'opinion' that it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error." (People v. Watson, supra, 46 Cal.2d at p. 836.) A reasonable probability "does not mean more likely than not, but merely a reasonable chance, more than an abstract possibility." (College Hospital, Inc. v. Superior Court (1994) 8 Cal.4th 704, 715.) It is a "probability sufficient to undermine confidence in the outcome[.]" (Strickland v. Washington (1984) 466 U.S. 668, 694 [80 L.Ed.2d 674, 698].)

Defendant also argues the admission of unreliable DNA evidence denied his Fourteenth Amendment right to due process of law, an error reviewed pursuant to Chapman v. California (1967) 386 U.S. 18 [17 L.Ed.2d 705]. Error is harmless under Chapman if it is harmless beyond a reasonable doubt. This standard asks whether there is a reasonable possibility the error affected the verdict. (People v. Nelson (2011) 51 Cal.4th 198, 218, fn. 15.) We shall determine the admission of the DNA evidence was harmless under either standard.

a. DNA Evidence Had Little Weight

Respondent argues that the prosecution's DNA statistics carried little weight with the jury. Although we find the jury should not have been given the task of weighing the conflicting DNA evidence under the circumstances presented here, we agree that the value of the prosecution's DNA evidence was severely diminished.

In concluding the DNA evidence here carried little weight with the jury, we by no means fail to appreciate the reason for the Kelly rule. The jury cannot see for itself the correct statistical method to apply to the results of a DNA test. "In most other instances, the jurors are permitted to rely on their own common sense and good judgment in evaluating the weight of the evidence presented to them." (Venegas, supra, 18 Cal.4th at p. 80.) Because the jury must depend "almost entirely on the technical interpretations of experts[,]" the resolution of questions regarding the compliance with accepted methodology is a determination to be made by the trial court, and is a prerequisite to admissibility. (Id. at p. 81.)

"It is the very complexity of the issues surrounding the propriety of the various recognized methods of computing RLFP*fn11 probability frequencies that draws them under the Kelly/Frye umbrella. . . . 'We would be asking jurors to do what judges carefully avoid-decide the substantive merits of competing scientific opinion as to the reliability of a novel method of scientific proof. . . . The result would be predictable. The jury would simply skip to the bottom line-the only aspect of the process that is readily understood-and look at the ultimate expression of match probability, without competently assessing the reliability of the process by which the laboratory got to the bottom line. This is an instance in which the method of scientific proof is so impenetrable that it would "'. . . assume a posture of mystic infallibility in the eyes of a jury . . . .' [Citation.]" [Citations.]' [Citation.] The statistical calculation phase of RFLP analysis therefore requires Kelly/Frye screening of evidence on statistical probabilities of random matches . . . ." (Venegas, supra, 18 Cal.4th at p. 83.)

Thus, even if the jury heard competing expert testimony on the acceptance of the methodology used in this case, it was incumbent upon the trial court to make the determination on admissibility.

Nevertheless, the prosecution's DNA evidence was undermined by several factors. First was the fact that Hansen testified Herbert had been calculating the frequency of two people's DNA matching the evidence, when Herbert's testimony was clear that he was calculating the frequency of a single person match.

Second, Hansen testified that she calculated the match frequency at 1 in 47 Caucasians based only on the alleles foreign to defendant, but admitted on cross examination that Herbert actually had done the calculation. Herbert did not testify about his recalculations, and the jury was told that the prosecution failed to timely reveal Herbert's recalculations.

Third, Hansen herself recalculated the statistics and came up with 1 in 66 Caucasians being included as a potential contributor. Respondent argues this impliedly conveyed to the jury that none of the prosecution's statistics were reliable.

Fourth, the defense experts agreed the DNA evidence was statistically inconclusive. Finally, the prosecutor attempted to distance himself from Herbert's statistics in his closing argument. He argued, "we had the statistic one in 95,000 and it was sort of where the battle went and what everything was focused on. At the end of the day, I'll submit to you I think that statistic is misleading because it doesn't assume anything, and it includes much too many people. [¶] And so let's forget about one in 95,000. Let's just talk about the other numbers, one in 66, one in 47, one in 27, one in 14, one in 13."

We must recognize that in this case the prosecution's own experts testified to three separate statistics. The most damaging statistic was vastly different from the other statistics given, and was discredited both by Hansen, and by Herbert's own recalculation. The jury almost certainly did not rely on the 1 in 95,000 statistic because even Hansen agreed it was incorrect. Moreover, the number of varying statistics offered by the prosecution served to lessen the value of any statistics offered by the prosecution.

b. Cumulative Evidence Against Defendant was Convincing

Respondent also argues the DNA evidence was not prejudicial because of other evidence pointing to defendant's guilt. We agree that in light of all the other evidence in this case, there is no reasonable possibility that the admission of the evidence affected the verdict. Specifically, respondent points to the proximity of the offenses, the truck's connection to both incidents, the timing of the offenses, the proximity of Doe's escape to where defendant had been in Nguyen's car, the similarity of the perpetrator's voice, defendant's behavior, the similarity of descriptions of the perpetrator, the identification evidence, and the fact that defendant showed consciousness of guilt when he falsely identified himself.

Respondent stresses the connections between the attempted robbery of Eady and the carjacking and kidnapping of Doe. They occurred in the same geographic vicinity at around the same time, and the truck was connected to both crimes.

Although Eady's identification of defendant in a photo lineup was somewhat equivocal, he was also able to describe Doe's Chevrolet pickup. He stated that the pickup was a blue Chevrolet Silverado. Eady was shown several pictures of Doe's pickup at trial. When asked if they looked like the truck he saw, he answered, "Yes and no. I mean . . . it resembles it, but . . . to see that angle right there, actually -- actually, it doesn't." He admitted, however, that he had not seen the truck from the angle shown in the photograph. The jury was shown a picture of Doe's pickup, and we may assume the jury concluded Eady was describing the same vehicle.

Doe, on the other hand, was certain in her identification of defendant. She was taken to the scene for an in-field show up about three hours after the carjacking. She testified that she felt defendant was the man who had attacked her based on the clothes he was wearing, on his general appearance, and on his behavior. He had a wiry build, his hair was in plaits, and he was jittery. Doe said she was positive at the time, that the person she was shown was the perpetrator.

As to the reliability of Doe's identification, defendant put on expert testimony that the stress experienced when a person is afraid has a negative effect on that person's ability to remember details, such as the details required to identify someone. The expert also testified that people are less accurate in identifying members of another race. Cross-racial error rates are two to two and one half times higher than error rates for same race identification. Accordingly, the California Supreme Court has stated that "Eyewitness identifications are especially unreliable where the witnesses identify a member of a race or ethnic group other than their own." (People v. Cardenas (1982) 31 Cal.3d 897, 908.) The jury was instructed to consider whether the witness and defendant were of different races when evaluating identification testimony.

Defendant's expert also testified that of the three recognition tests law enforcement uses -- field show ups, photo spread, and live lineups -- live lineups have the highest reliability and field show ups have the lowest reliability. The errors in field show ups tends to be false positives, i.e., saying it was the person when it was not.

Defendant's expert testified that distinctive cues, such as scars, tattoos, unusual hairstyles, or jewelry are the most accurate part of human perception of faces. The distinctive cues that defendant possessed at the time of the offenses, but that Doe failed to remember were earrings, tattoos on his forearms, and a mustache.

Doe described her attacker as having dreadlocks or braids, but defendant did not have either. Doe told the 911 operator that her assailant wore gray sweatpants and a light gray t-shirt. She told the responding officer that the assailant wore baggy light gray sweatpants and a gray t-shirt. When questioned at trial she said his pants were very baggy and were grayish, but not "blue jean dark." In fact, when arrested, defendant was wearing a gray t-shirt and a pair of blue jeans, size 36 waist, 32 length.*fn12 Doe said her attacker had no beard or mustache, when in fact he had a mustache.

Nevertheless, Doe was certain she had correctly identified defendant. She based her identification on defendant's clothing, behavior, and general appearance. Defendant emphasizes that Doe believed he was wearing sweat pants, when he actually was wearing jeans. Whatever he was wearing was consistent with Doe's recollection from the incident, because she based her identification in part on his clothing. The other inconsistencies in Doe's identification are understandable. It was dark. Defendant's mustache was thin. His earrings are barely visible in the photo taken of him the night of the incidents. The tattoos may have been barely visible on his dark complexion at night. Defendant's photo shows his hair was about the length Doe said it was, and it is easy to see how she could have thought his hair was braided or in dreadlocks.

Respondent also points to the proximity of Doe's escape to Nguyen's parked car, and to where defendant was eventually apprehended. The location and times of the incidents are facts from which a reasonable inference of defendant's identity as the perpetrator can be drawn.

Also indicative of defendant's identity as the perpetrator was the fact that Doe described the perpetrator as constantly mumbling, talking gibberish, and "very jittery," and Detective Jones described defendant as "stumbling," "mumbling," and "a little jittery." Nguyen smelled a strong odor of alcohol in his car when defendant was in it, and Doe testified she smelled alcohol on the perpetrator's breath.

Also, the witnesses' descriptions of the perpetrator were reasonably consistent with each other and with defendant's general appearance in terms of height, build, age, race, and hair. Defendant was described as tall (Nguyen), 5 feet 7 inches to 5 feet 10 inches (Eady), and 5 feet 10 inches (Doe). His build was described as thin, but muscular (Eady), skinny and wiry with muscular arms (Doe), and skinny (Nguyen). Eady reported that defendant was approximately 25 to 35, and Doe guessed he was in his late 20's or early 30's. All witnesses said he was black. They described his hair as pulled back in a ponytail (Eady), pulled back from his forehead and parted down the middle with cornrows or dreadlocks that were fuzzy at the end (Doe), and slicked down with gel and curly (Nguyen). In fact defendant was six feet tall, skinny, 36 years old, and had slicked down hair that was parted in the middle, pulled behind his ears, and fuzzy in back to about chin length. Both Eady and Doe described the perpetrator as having a deep voice.

Considering the totality of the evidence, we are convinced that the DNA evidence was harmless beyond a reasonable doubt. The jury heard testimony from Eady, who saw Doe's attacker get into her pickup. Eady identified the pickup by make. He recognized that a woman was driving. The jury believed that defendant carjacked Doe. No other carjackings from that parking lot were reported at the same time. The jury would not have convicted defendant of the carjacking without also convicting him of the oral copulation. In the end, the weight of the non-DNA evidence inescapably points to defendant as the perpetrator of all of the charged crimes committed during the narrow window of time in the same vicinity.


No Brady Violation

In a hearing outside the jury's presence prior to Hansen's testimony, she told the court that she had reviewed Herbert's work after he received comments defense counsel forwarded to him from defense witnesses Inman and Krane. She told the court that she suggested to Herbert that he recalculate the statistic using only the foreign alleles, which would be the appropriate way to determine the frequency of the foreign contribution to the mixture. Prior to trial, Herbert performed the calculations that resulted in the 1 in 47 statistic.

Notwithstanding that Herbert performed the calculations prior to trial and that the calculations showed a statistic much less incriminating to defendant, the calculations were not discovered to the defense until Hansen testified. Additionally, Herbert testified on cross examination that when he found out that the defense experts disagreed with him, he did nothing about it, other than to talk to Hansen about it. He did not disclose that Hansen told him to recalculate the statistics using only the foreign alleles.

Shortly after the recalculated statistics were discovered to the defense in the midst of Hansen's testimony, defense counsel moved to strike the testimony of Herbert and Hansen as a sanction for a discovery violation. Then, at the conclusion of the case defendant brought a written motion to dismiss the charges pursuant to Brady v. Maryland (1963) 373 U.S. 83 [10 L.Ed.2d 215], based on the failure to provide discovery.

The trial court ruled there was a discovery violation, but no Brady violation. The trial court reasoned that Brady held the prosecution must disclose evidence that is favorable to the accused and material on the issue of guilt or punishment. The court stated that evidence is material "if there is a reasonable probability that, had the evidence been disclosed, the outcome would have been different." The court reasoned that while the undisclosed evidence was favorable to the accused, it was not material because it was disclosed at trial, therefore not suppressed. The court determined that the proper remedy was to instruct the jury of the prosecution's untimely disclosure.

Defendant argues the suppressed evidence that Herbert performed a statistical calculation subsequent to his initial one that was more favorable to the defense was crucial to a successful prosecution and, if discovered earlier, would have destroyed the effectiveness of the prosecution's DNA evidence. We disagree.

As the trial court noted, "[e]vidence is 'material' 'only if there is a reasonable probability that, had [it] been disclosed to the defense, the result . . . would have been different.' [Citations.]." (In re Sassounian (1995) 9 Cal.4th 535, 544.) In this case the evidence was eventually disclosed to the defense, so the real question is whether there is a reasonable probability that the result would have been different if the evidence had been disclosed earlier.

We conclude there is no such reasonable probability. Herbert's second set of DNA statistics were damaging to the prosecution. The way that the evidence unfolded may have been even more damaging than if Herbert had initially testified to the greater probability of a random match. As it was, the jury was left with very little confidence in Herbert's analysis. Moreover, as we have already stated, the prosecution's DNA evidence should have been suppressed pursuant to the third prong of Kelly, but the trial court's failure to strike the evidence was harmless under any standard.

We do not address defendant's argument that the discovery instruction was an inadequate remedy for the discovery violation and that the court should have stricken the DNA evidence, because we have already determined that the trial court's failure to strike the evidence was harmless beyond a reasonable doubt.


Sufficient Evidence of Attempted Robbery

Defendant argues there was insufficient evidence to support his conviction for the attempted robbery of Eady because there was no evidence that he had the specific intent to make Eady so afraid that Eady would surrender his wallet. He argues that pursuant to People v. Scott (2009) 45 Cal.4th 743, 749, a robbery does not occur unless the defendant uses force or fear to take property from a person or to prevent the person from resisting. He reasons that a conviction for attempted robbery required evidence that he had the specific intent to generate enough fear to accomplish the robbery. He is wrong.

The force necessary for robbery is subjective. (People v. Anderson (2007) 152 Cal.App.4th 919, 946.) Thus, the requirement is that the victim, in fact, be afraid. Here, there was evidence from Eady's testimony that he was scared and thought he might be killed.

The specific intent requirement for an attempted crime is the specific intent to commit the target offense. (People v. Williams (1988) 44 Cal.3d 883, 908.) The specific intent requirement for attempted robbery is the specific intent to commit robbery. "'An attempted robbery requires a specific intent to commit robbery and a direct, ineffectual act (beyond mere preparation) toward its commission.'" [Citation.] (People v. Lindberg (2008) 45 Cal.4th 1, 24.)

Robbery requires the taking of property by means of force or fear. (§ 211.) The specific intent necessary for robbery is the intent to permanently deprive a person of property. (People v. Dominguez (1995) 38 Cal.App.4th 410, 417.) A conviction for robbery does not require that a defendant have a specific intent to use force or fear upon the victim. Thus even if defendant had been convicted of robbery, as opposed to attempted robbery, the prosecution would not be required to show he specifically intended to obtain property by force or fear.

Since a specific intent to use force or fear is not a requirement for robbery, it is likewise not a requirement for attempted robbery. Moreover, attempted robbery can be committed without causing fear in the victim. (People v. Vizcarra (1980) 110 Cal.App.3d 858, 862.) "It is true that an element of force or fear must be proved in order to establish a conviction for robbery under Penal Code section 211. It is not necessary, however, for this element to be reflected in the overt act of an attempted robbery if the crime has not progressed to that point." (Ibid.)

Defendant also argues there was evidence of the presence of drugs in his system, and argues that this shows he had no specific intent to put Eady in an actual state of fear. As discussed, however, a specific intent to put the victim in fear is not required for a conviction of attempted robbery.

Substantial evidence supported defendant's conviction for attempted robbery.


Improper Multiple Conviction for Kidnapping

Defendant was charged with three kidnapping offenses: (Count 1) kidnapping during the commission of carjacking (§ 209.5, subd. (a)), (Count 2) kidnapping to commit rape or oral copulation (§ 209, subd. (b)(1)), and (Count 3) simple kidnapping (§ 207, subd. (a)). The jury found defendant guilty of Counts 1 and 3, and guilty only of the lesser included offense of simple kidnapping to Count 2. The trial court stayed the sentences for all three kidnapping convictions pursuant to section 654.

Defendant argues he was improperly convicted of the two simple kidnapping offenses because they are lesser included offenses to the carjacking offense. In People v. Pearson (1986) 42 Cal.3d 351, 355, the Supreme Court held that multiple convictions may not be based on necessarily included offenses. The People concede that the convictions for Counts 2 and 3 should be reversed. We agree. Defendant cannot be convicted of both simple kidnapping and aggravated kidnapping.

As stated, multiple convictions may not be based on necessarily included offenses. "An offense is necessarily included within another if 'the statutory elements of the greater offense . . . include all the elements of the lesser offense. . . .' [Citations.]" (People v. Lewis, supra, 43 Cal.4th at p. 518.) Simple kidnapping is a necessarily included offense of kidnapping in the commission of carjacking. (See People v. Russell (1996) 45 Cal.App.4th 1083, 1088-1089 [in kidnapping for carjacking case court properly instructed on lesser included offense of simple kidnapping]; People v. Medina (2007) 41 Cal.4th 685, 701 [attempted kidnapping lesser included offense to attempted kidnapping in the commission of carjacking].)

The prosecutor argued to the trial court that there were two separate instances of kidnapping, the first with the dual purposes of carjacking and to commit a sex offense, and the second occurring after the sex offense when the victim was directed to restart the car and start driving again. However, "the forcible detention of the victim is an implied element of the crime of kidnapping and, therefore, as long as the detention continues, the crime continues." (Parnell v. Superior Court (1981) 119 Cal.App.3d 392, 407-408.) Thus, where there is a single abduction followed by a continuous period of detention, there is only one kidnapping offense. (People v. Thomas (1994) 26 Cal.App.4th 1328, 1335, and cases cited therein.)

Under the facts presented here, there was only one offense of kidnapping, and it was error to convict defendant on the aggravated kidnapping count as well as the two lesser included offenses.


Crime Prevention Fine

The People also concede that the $10 fine imposed pursuant to section 1202.5 for local crime prevention programs is improper and must be stricken. Attempted crimes are not among the enumerated offenses to which section 1202.5 applies.


The convictions for Counts 2 and 3 (simple kidnapping) are reversed and the crime prevention fine is stricken. The judgment is otherwise affirmed.

We concur: HULL , J. HOCH , J.

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