IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sacramento)
October 12, 2011
THE PEOPLE, PLAINTIFF AND RESPONDENT,
SAMMIE LEE NICHOLS, DEFENDANT AND APPELLANT.
(Super. Ct. Nos. 08F09287, 09F00030 & 09F09106)
The opinion of the court was delivered by: Blease , Acting P. J.
P. v. Nichols
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
With the exception of a lesser offense on one count and a deadlock on another as to a sixth victim, a jury convicted defendant Sammie Nichols of all 19 counts in the information*fn1 for his offenses involving five victims. His crimes included five first degree burglaries, four kidnappings for the purpose of committing robbery (and one simple kidnapping as the lesser offense), four robberies, two forcible rapes, carrying a loaded gun in public, and possessing an illegal shotgun. The jury also sustained all but three enhancements (with a deadlock as to a fourth) for the use of a gun and other aggravating circumstances connected with the rapes.
The trial court sentenced defendant to prison. His term consisted of a determinate sentence in excess of 81 years, with an indeterminate sentence of 78 years to life. In light of his convictions for multiple violent felonies, the court limited his custody credits to 15 percent. (Pen. Code, § 2933.1 [imposing this limitation regardless of any other provision of law where there are convictions for violent felonies].) (People v. Nunez (2008) 167 Cal.App.4th 761.)
On appeal, defendant contends the trial court erred when it limited his cross-examination of fingerprint and DNA prosecution experts. He also raises the largely academic argument that the trial court erred in failing to stay the 16-month sentences on two of his robbery convictions where he was also convicted of kidnapping the same victims for purposes of another robbery. Finally, he contends his sentence is unconstitutionally cruel and/or unusual. We will affirm the judgment.
Defendant's claims do not relate to the sufficiency of the evidence at trial, or require us to weigh the strength of this evidence against prejudice from any error. We therefore omit an overall summary of the testimony and exhibits. We will include any necessary facts in the Discussion.
Before the prosecution fingerprint expert testified, the parties discussed the admissibility of an FBI report responding to criticisms of its methods for fingerprint analysis in the wake of an erroneous FBI fingerprint identification of an Oregon attorney as a suspect in a 2004 Madrid bombing. The prosecutor contended it was irrelevant because the FBI was not involved in the present case, nor was the expert involved in the FBI case; it involved human error rather than any methodological flaw; and the FBI identification had not been the subject of an independent examination, while defendant had his own expert to review the identifications at issue. He also argued it would be prejudicial to suggest error only on the basis of error in another case. Defense counsel indicated that she anticipated the need to refute any statement from the prosecution expert that a misidentification could not have happened (based on the expert's testimony at the preliminary hearing). The trial court agreed that if there was any suggestion of infallibility, defense counsel could ask if the expert was familiar with the FBI mistake in the Madrid case, but further details of the FBI report or the other case were otherwise irrelevant.
In the course of cross-examination, defense counsel asked whether the expert believed fingerprint analysis was infallible. She obtained the agreement of the expert that human error could occur in the lifting or comparison of fingerprints, and that there "have been" errors in human judgment. While the expert did not entirely agree with a National Academy of Sciences (NAS) report that had found "zero error rates are not scientifically plausible," the expert conceded "there's always human error" and the NAS report's conclusion "possibly is true."
After the conclusion of the expert's testimony, defense counsel asserted that she still desired to question the expert about the Madrid error. However, she confirmed with the court that the tenor of the expert's testimony had acknowledged human error and therefore did not provide any basis to question the expert about the Madrid error under the court's earlier ruling.
Defendant argues that the trial court's restriction on any exploration of the expert's familiarity with the Madrid case in the absence of any claim of infallibility was an abuse of the court's discretion because this did not involve any sort of report or treatise subject to the restrictions on the cross-examination of witnesses (Evid. Code, § 721, subd. (b)),*fn2 and "[b]rief evidence about [the Madrid case] would differ in kind, not merely in degree, from [the expert]'s reluctant retreat from her previously-stated opinion [at the preliminary hearing] that the technique was infallible." He claims that to have omitted a specific example of error from cross-examination of the expert left the jury with a significantly different impression of the witness, requiring reversal under the federal charter unless harmless beyond reasonable doubt.
We do not need to explore the substantive merits of the trial court's ruling. In light of the expert's concession of the possibility of human error, and the grudging acknowledgement of the debunking in the NAS report of overenthusiastic claims of reliability in fingerprint analysis, questioning about a specific instance of error in another case that another agency committed could not possibly have raised a reasonable doubt about the local expert's identifications.
Defense counsel sought to cross-examine the prosecution DNA expert about an analysis of the Arizona DNA database involving a sample of nearly 65,000 profiles. This statistical survey had found "dozens" of matches of unrelated profiles at 9 loci and 20 matches at 10 loci. The analysis was the product of a court order in a criminal case.*fn3 Defense counsel asserted this would counter the expert's anticipated testimony that the probability of a random match of defendant's DNA profile and DNA exemplars was exponential beyond the fifteenth degree. The prosecutor objected that the analysis was neither an article nor treatise subject to peer review, but was only a statistical evaluation of the sample of the database prepared in response to a court order for some limited purpose, which lacked evidence of any reliability.
In a foundational hearing (Evid. Code, § 402), the expert admitted vague familiarity with the analysis from anecdotal accounts. She noted that the analysis did not involve a random match (as in her probability opinion) but matches within a defined population, involving a huge sum of cross-comparisons of each profile with every other remaining profile*fn4 (and therefore increasing the chance of a match). The analysis also identified a match of any 9 loci out of a set of 13, whereas the test she applied required a match at 15 loci. She was not aware of any evaluation of the reliability of the analysis.
The court stated that it was primarily concerned that the footnote we quoted above (see fn. 3), indicated the analysis did not qualify as a reliable publication, treatise, or journal. It therefore lacked a foundational showing of reliability for purposes of admitting it into evidence for purposes of cross-examination of the expert under Evidence Code section 721.
Defendant again asserts the trial court's ruling was an abuse of its discretion because the analysis was "raw data" and thus not within the category of materials subject to limitations in cross-examination. (Evid. Code, § 721, subd. (b)). He again asserts the restriction on his cross-examination violated his federal constitutional right, and was not harmless beyond a reasonable doubt.
His first argument is self-defeating.*fn5 If not admissible as proper cross-examination evidence of an expert, a statistical analysis is inadmissible hearsay that is "generally considered too unreliable for introduction" unless the expert has taken it into consideration in reaching an opinion. (Luque v. McLean (1972) 8 Cal.3d 136, 147, 148-149 [government survey of accident rates].) His cited basis for admission, Genrich v. State of California (1988) 202 Cal.App.3d 221, involved a Caltrans survey of accident rates at a crosswalk on the Pacific Coast Highway used to impeach an expert who testified that he had based his opinion on his study of Caltrans records of accident rates at that location. (Id. at pp. 226, 231.) No such connection exists in the present case because the DNA expert did not relyon the Arizona statistical analysis. Accordingly, defendant does not have an independent basis for admitting the analysis.
Since the DNA expert had not relied on the Arizona analysis in any respect in forming her opinion, defendant could use it in cross-examination only if the court admitted it into evidence. (Evid. Code, § 721, subd. (b).) Defendant did not provide any evidence that the methodology of the analysis was reliable, that its results were accurate, or that it was remotely probative in assessing the expert's opinion. The trial court consequently did not abuse its discretion in excluding the evidence, and we reject defendant's argument to the contrary.
The convictions involving the July 2007 victim (counts 15 to 17) were for burglary, robbery, and kidnapping for the purpose of robbery; those involving the August 2007 victim (counts 4 to 7) were for burglary, robbery, rape, and kidnapping for the purpose of robbery. As to each set of offenses, the trial court stayed sentence on the burglary convictions but imposed sentence on the remainder.
Defendant complains that Penal Code section 654 ("section 654") required the trial court to stay sentence on the robbery convictions as well. He contends the kidnappings for robbery and the robberies were part of an indivisible course of conduct in which he had a single objective to obtain as much money from the victims as he could, both from their homes and their banks, as shown by a similar pattern of behavior in the other offenses.
Defendant forced the July 2007 victim into her apartment at gunpoint, and demanded money. She pointed to her purse, and he took $120 out of it. He said he needed more than that. When she told him she did not have any more on hand, he said that they would go to her bank. He walked her to her car, and lay in the back while she drove with the gun pointed against the back of the driver's seat. He told her to drive to her bank, which was about 10 minutes away. When she parked at the bank, he told her to park away from the cameras at the ATM and go to a teller to withdraw $1,500. Once inside, she alerted the security guard to her situation. Defendant drove off in her car.
Defendant forced his way at gunpoint into the apartment of the August 2007 victim when she opened her door to speak to the person who had knocked. He told her that her roommate owed him $1,200 or $1,500 and he needed it. He asked if she had any cash. She told him no. After rummaging through the house, he raped her. Either just before or afterward, he took her diamond locket (worth about $500). He again demanded the money that her roommate purportedly owed to him, and asked how much money was in the victim's bank account. He told her they were going to go to the bank and withdraw as much as she could. Defendant took some computer equipment in bags and walked her to her car. They drove to a bank about two minutes away. She withdrew $280 from an ATM. Defendant had her drive to a second ATM, where she was able to withdraw $200 more. When she was unable to withdraw more money at a third ATM, defendant had her drive back to the vicinity of her apartment, where he got out of the car with the bags and allowed her to drive off.
In imposing sentence, the trial court distinguished between the robbery of items taken from the August 2007 victim at her home and the kidnapping for robbery of the money from the two ATMs. In imposing sentence on the robbery of the July 2007 victim along with the kidnapping for robbery, the court stated: "Again, the reason for the consecutive term is it's a different time, different place. It is divisible conduct."
Section 654 precludes multiple punishment where an act or course of conduct violates more than one criminal statute but a defendant has only a single intent and objective. (People v. Liu (1996) 46 Cal.App.4th 1119, 1135.) However, even where there is a single course of conduct pursuant to one objective, if the individual acts are temporally separated so as to give an opportunity to reflect and yet nonetheless continue to pursue that objective, a defendant can be punished for each of the individual acts. (People v. Andra (2007) 156 Cal.App.4th 638, 640 (Andra).) On this issue, we review the court's explicit or implicit factual resolutions for substantial evidence. (Liu, supra, 46 Cal.App.4th at p. 1136; People v. Coleman (1989) 48 Cal.3d 112, 162.) The failure of defendant to object on this basis in the trial court does not forfeit the issue on appeal. (People v. Scott (1994) 9 Cal.4th 331, 354, fn. 17.)
Defendant had an opportunity after robbing each victim in their homes to take only what they had on hand. He instead continued in his course of conduct to exact all the cash he could make them obtain. He contends our decision in Andra, supra, is distinguishable because it involves a greater temporal divide. This is simply a matter of degree, not of kind.
He also argues that Andra is contrary to People v. Bauer (1969) 1 Cal.3d 368, 372, 377, which held that the robbery of items from a home was inseparable from the theft of the car from the home's garage that the robbers happened upon in the course of ransacking the home. The short answer is that on a fact-specific issue such as this, there is little if any value to be derived in comparing the facts of the case at bar with facts in other cases (e.g., People v. Rundle (2008) 43 Cal.4th 76, 137-138 [sufficiency of evidence]; People v. Ault (2004) 33 Cal.4th 1250, 1267 [finding error harmless]). In any event, walking uninterrupted from the house into the garage in the midst of ransacking simply did not provide a significant break during which there could have been a decision to break off from the course of the robbery. In the present case, on the other hand, there was the effort involved in forcing the victims to leave their homes, get into their cars, and drive to ATMs some distance away. There was also the intervening diversion from the course of conduct to rape one of the victims. Defendant fails to identify any criticism of Andra (or People v. Gaio (2000) 81 Cal.App.4th 919, 935-936, on which Andra relied). We therefore find substantial evidence to support the trial court's decision to impose separate punishment on the two robberies.
In the trial court, defendant argued in favor of a sentence of 28 years to life for the four aggravated kidnappings (which we note did not account for the punishment imposed for any offenses that involved the fifth victim), because he was only 17 to 18 at the time of the offenses, did not have any previous criminal record, and had been "victimized as a child by the adults in his life." For the first time on appeal, defendant argues that the length of his sentence is unconstitutionally cruel and/or unusual.
He expressly abjures any reliance on the criteria for making this determination as applied to the facts of a case (In re Lynch (1972) 8 Cal.3d 410, 425-427 [state constitution]; People v. Ayon (1996) 46 Cal.App.4th 385, 396 [noting that federal law generally overlaps first state criterion]), no doubt to avoid the application of forfeiture principles to this issue (Keener v. Jeld-Wen, Inc. (2009) 46 Cal.4th 247, 264-265 & fn. 22; People v. Norman (2003) 109 Cal.App.4th 221, 229; cf. People v. Cole (2001) 88 Cal.App.4th 850, 868-869).
He instead invokes the recent decision of Graham v. Florida (2010) 560 U.S. ___, ____ [176 L.Ed.2d 825, 836] (Graham), which found a sentence of life imprisonment without parole for a juvenile who did not commit a homicide was categorically cruel and unusual under all circumstances, and a concurring opinion in People v. Deloza (1998) 18 Cal.4th 585, 601 (Mosk, J.) that criticized imposing a sentence in excess of human life expectancy. He appears to adopt the latter position and jumps from the holding in Graham to a claim that his de facto life sentence without parole is unconstitutional because he was only on the cusp of adulthood.
Graham on its face applies only to offenses committed as a juvenile. Neither party provides any analysis of the impact of Graham where some offenses are committed as a juvenile and some as an adult. We will not develop the argument for defendant. (People v. Oates (2004) 32 Cal.4th 1048, 1068, fn. 10; Imagistics Intern., Inc. v. Department of General Services (2007) 150 Cal.App.4th 581, 592, fn. 8, 593; Jones v. Superior Court (1994) 26 Cal.App.4th 92, 99 ["Issues do not have a life of their own: if they are not raised or supported by argument or citation to authority, we consider the issues [forfeited]"].) In light of this forfeiture, we say only that Graham does not apply where defendant's adult offenses alone resulted in a term of 70 years to life even before punishment for the juvenile crimes was imposed. Graham does not suggest that its holding precludes any punishment for juvenile offenses.
As for the late Justice Mosk's concurring opinion, we have twice noted that it does not have precedential value. We respectfully disagreed that a sentence in excess of an ordinary human lifespan in otherwise appropriate circumstances is cruel or unusual merely because of its length. (People v. Haller (2009) 174 Cal.App.4th 1080, 1089-1090; People v. Byrd (2001) 89 Cal.App.4th 1373, 1383.)
The judgment is affirmed.
We concur: NICHOLSON , J. DUARTE , J.