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The People v. Sammie Lee Nichols

October 12, 2011

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
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

CA3

NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

DISCUSSION

I

A

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 ...


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