APPEAL from a judgment of the Superior Court of Fresno County. John F. Vogt, Judge. (Super. Ct. No. F09905463)
The opinion of the court was delivered by: Kane, J.
CERTIFIED FOR PARTIAL PUBLICATION*fn1
Defendant Koua Xiong was convicted of the first degree murder of a
taxi driver, Jose Jesus Martinez, who was found dead in his taxi,
which had crashed into a tree. He had been killed with a single,
point-blank gunshot to the back of the head. No suspect came to light
until defendant was identified by a "cold hit"--a match of DNA*fn2
profiles found through the comparison of the DNA profile
from the blood found in and on the taxi with an offender database of
DNA profiles. On appeal, defendant contends (1) the evidence was
insufficient to support the convictions, (2) defense counsel was
ineffective for failing to object to the DNA evidence and request a
limiting instruction, and (3) the trial court erred in failing to stay
the sentence on possession of a firearm pursuant to Penal Code section
654.*fn3 We will affirm.
On March 10, 2011, the Fresno County District Attorney charged defendant with murder (§ 187, subd. (a); count 1) and possession of a firearm by a felon (former § 12021, subd. (a)(1); count 2). As to count 1, the information also alleged that defendant personally and intentionally discharged a firearm (former § 12022.53, subd. (c)), which proximately caused Jose's death (former § 12022.53, subd. (d)), and it alleged the special circumstances that the murder occurred during the commission of a robbery (§ 190.2, subd. (a)(17)(A)) and that the victim was operating a taxicab when he was killed (§ 190.25).
A jury found defendant guilty of first degree murder on count 1, found true all of the allegations, and found defendant guilty on count 2. The trial court sentenced him to life in prison without the possibility of parole on count 1, plus a consecutive 25-year-to-life term on the firearm enhancement under former section 12022.53, subdivision (d), and a stayed 20-year term on the firearm enhancement under former section 12022.53, subdivision (c). On count 2, the court sentenced defendant to the upper term of three years, to be served concurrently with the sentence on count 1.
Very early in the morning of March 10, 2009, three taxis were lined up outside the bus station in Fresno, waiting for potential customers. A bus was expected to arrive at 1:45 a.m. Enrique was the driver of the first taxi, and Jose was the driver of the third taxi, a 1999 Ford Crown Victoria. At about 1:00 a.m., Enrique saw Jose go into the bus station to use the restroom. When Jose came back out of the station, they greeted each other, and Jose went back to his taxi. After Jose got into his taxi, Enrique noticed in his side mirrors that a man walked up to Jose's taxi and spoke to him. Enrique could not see the man's face. Enrique watched with interest because he was first in the taxi line and should have gotten the next customer. Enrique saw the man get into Jose's taxi. Jose pulled away, made a U-turn, and drove north. It was between 1:15 and 1:20 a.m.
At about 1:30 a.m., a woman and her father were driving east on Kearney Boulevard when they saw a taxi on the side of the road. The taxi was on the north side of Kearney Boulevard, west of Hughes Avenue. The taxi was pointed in the wrong direction. It was very dark, and the woman was not sure if the taxi had hit a tree or if it was just parked, but it was in a strange position to be parked. Her father turned the car around to shine the high beam lights on the taxi. The woman told her father, "I think someone's in the car. I think it hit the tree." She immediately called 911. The person in the driver's seat did not react to the high beams. The woman noticed that the taxi's doors were all closed except for the rear door on the driver's side, which was slightly open. She did not see anyone around or walking away from the taxi. She was afraid because she thought someone had gotten out of the back seat of the taxi.
Officers responded to the scene immediately. The front end of the taxi had collided with a very large palm tree and was badly damaged. Tire tracks showed the taxi had veered off the road before hitting the tree. The ignition key was on and the taxi was in drive, but the engine was not running. The headlights were still turned on, but they were no longer working. The rear tail lights were still illuminated. The left rear door was wide open and the long center lap belt was hanging out of the door. The right side of the taxi was up against a very large oleander bush. The right rear door was ajar and the front doors were closed.
Jose was sitting in the driver's seat. He was not wearing a seatbelt. An officer was able to open the driver's door, but two officers had to pull it fully open due to the damaged front quarter panel. Jose did not have a pulse. (At this point, officers did not realize he had been shot.) His light-colored jacket was almost completely unzipped and pulled open. Blood was smeared all over it. His right arm still rested on the armrest, which was also smeared with blood. Oddly, a watch with a flexible metal band was balanced on top of his forearm. The front airbags had deployed (and deflated) and were smeared with blood. The front passenger seat was pushed forward, particularly on the left side, and twisted in a clockwise manner toward the window.
A large quantity of blood was on the right side of the back seat, and it was smeared on the inside of the right rear door. Outside the right rear door, the area over the door was smeared with blood and free of the dust that covered the rest of the taxi. There were numerous blood smears starting near the right rear door handle and continuing on the right sail panel and rear quarter panel toward the rear of the taxi. Blood smears zigzagged across the top of the trunk. The left rear door was smeared with blood, and the door window had blood drippings 10 inches long. The center post between the left front and rear doors also bore the blood drippings, and the top of the taxi, directly above both doors on the left side, was smeared with blood. The roof edge of the taxi had two dents in the region between the doors on the left side. Near the dents, the paint was freshly chipped and the bare metal exposed. The inside of the left rear door was smeared with blood. The handle of the driver's door was also smeared with blood.
After the driver's door was opened, heavy blood drippings were apparent on the door sill plate. Business cards and papers of the type normally found in a wallet were strewn on the floorboard and on the dirt outside the driver's door. Numerous blood droplets were on the cards and papers. A plastic photograph holder of the type normally found inside a wallet, contained photographs and was on the edge of the driver's seat. A driving log and other papers were on the front passenger seat. No wallet was found, although it was Jose's custom and habit to carry one.
One shoeprint was found near the right rear of the taxi, next to the oleander, but no others were found. A piece of Mexican money was entangled in the oleander bush, and the bush was bloody. Near the left rear of the taxi, officers found several drops of blood in the dirt. Two officers and a police dog searched the surrounding area within a radius of about 300 yards, but found no one.
An accident investigator estimated that the taxi was traveling about 33 miles per hour when it collided with the palm tree. The taxi was rolling, not braking, and Jose necessarily had his foot on the accelerator. After the collision, the rear wheels continued to spin in the dirt and probably produced a lot of dust. The dents in the left side of the taxi's roof edge line were induced damage from the sudden change in velocity during the collision. This buckling or caving generally causes paint chips to fly off. A person climbing over the roof of the car would not typically cause damage to the roof edge line, but would more likely dent the middle of the roof. The investigator did not believe the taxi's roof damage was caused by a person.
The bent front passenger seat demonstrated that one unrestrained occupant in the back seat struck the back of the front seat upon the sudden deceleration from 33 to zero miles per hour when the taxi struck the tree. The occupant continued moving until he or she was stopped by the front seat. The seat belts in the back seat showed no signs of having been worn during a collision. The driver's seat belt showed no major stretching, but it was an older, worn belt. And a seat belt might incur less stretching when an air bag is deployed.
After the collision, the driver's door was no longer sealable. The taxi's doors would not have flown open during the collision; someone had to have opened them.
At about 3:30 a.m., Detective Yee, the primary detective assigned to the case, arrived at the crime scene. He observed the blood inside the taxi, particularly on the back right seat, outside on the right rear of the taxi, and on the oleander bush right outside the right rear door. He also saw a drop of blood in the dirt, but he could find no blood trail leading away from the scene, and he found only one footprint. He looked again after the taxi was lifted from the site, but he still found no other tracks or drops of blood.
Detective Yee described the watch resting on Jose's arm as a "cheap watch." No fingerprints were found on the watch or anything else.
Detective Yee went to the hospital to observe Jose's body and to examine his belongings. Jose's light-colored jacket was smeared with a lot of blood. He had a cell phone, but no wallet. The blood on the jacket was concentrated on the left side of the jacket and around the pockets.
On March 10, 2009, the forensic pathologist performed the autopsy on Jose's body. The pathologist observed a single gunshot wound to the center of the back of Jose's head. The muzzle of the gun had been pressed to his head when it was fired. Jose was instantly incapacitated, his brain ceased functioning within seconds, and he died shortly thereafter. The pathologist estimated the bullet's caliber as about .22, .25, or .32. He did not think it was as large as .38 caliber. Jose bore a diagonal bruise across his body from the seat belt. His liver suffered a small superficial tear. Jose did not suffer injuries from the airbag. The pathologist determined that the gunshot was the cause of the death, and the manner of death was homicide. Jose's blood tested negative for drugs and alcohol.
Fingerprints lifted from the taxi belonged to Jose's roommate, who was eliminated as a suspect. No gun and no prints belonging to defendant were found inside the taxi. Twenty $1 bills were found inside the owner's manual on the floor.
On March 11, 2009, the taxi was brought to the Department of Justice (DOJ) crime lab in Fresno. Detective Yee spoke to the DNA analyst and left the taxi for her to analyze. The analyst photographed the taxi thoroughly. She noted the blood on various surfaces on the inside and outside of the taxi. She observed that Jose's jacket had blood on the inside and outside of both pockets and around the hood and back of the jacket.
The analyst took many blood samples from all of these stains, then analyzed the DNA in 16 of the samples, plus the blood drop that had been collected from the dirt at the scene. For each sample, she created a profile of 15 genetic loci, plus one gender marker. The DNA from the blood spatter on the inside of the taxi's windshield matched the DNA from Jose's blood. The rest of the blood samples all came from the same unknown male, for which the analyst now had a 15-locus DNA profile.*fn4
The analyst calculated the rarity of the unknown male's DNA profile in three populations using the allele frequencies from African-American, Caucasian, and Hispanic population databases. The allele frequencies she used were determined by an FBI study. The analyst explained that the frequencies from the three ethnic populations provided an example of approximately how rare the profile was "across the board." She did not use other ethnic databases, such as Asian or Indian databases. Using the three major populations was the DOJ's standard procedure for statistical analysis throughout California. She explained that the unknown male's DNA profile was "extremely rare." She determined that "[t]he statistical chance that [she] would pick an unrelated individual at random that would have the same profile" was approximately "one in two septillion [2 followed by 24 zeros] African-Americans, [one] in 270 sextillion [270 followed by 21 zeros] Caucasians, and [one] in 56 sextillion [56 followed by 21 zeros] Hispanics."
Because the police currently had no suspect in the crime, the analyst entered the unknown male's DNA profile into the Combined DNA Index System (CODIS; an offender database*fn5 ) on May 22, 2009, to see if she could get a match or "hit." This allowed her to compare the unknown male's DNA profile to a database of the DNA profiles entered not only in California but also in the entire country. Initially, no match was found. But the CODIS system rechecked for matches on a regular basis, and on September 10, 2009, it found a match. The Richmond DOJ lab retested its sample to verify the profile, then notified the analyst of defendant's name.
On September 14, 2009, the analyst called Detective Yee and told him defendant had been found as a match to the DNA profile. Detective Yee located defendant's address on Hughes Avenue, about a mile from the crime scene. Officers went to defendant's house, took him into custody, and brought him to the station for questioning.
The officers placed defendant in an interview room about eight feet
square. The room locked from the inside and the only way out was with
a department-issued key. Detective Yee read defendant his Miranda*fn6
rights and defendant agreed to speak to Detectives
Yee and Villalvazo. The interview was recorded by a hidden camera and
the video was played for the jury at trial. In the interview,
defendant explained that he sustained an injury to his head about six
months earlier when some Mexicans hit him with a two-by-four in an
alley. The wound bled and he still had a scar on the front of his
face over his right eyebrow and up to his hairline. After they talked
a while, Detective Yee showed defendant some photographs of the taxi
crashed against the palm tree. At that point, defendant started to
yawn and continued to yawn about 40 times, even though he had not
yawned before. Defendant denied taking any property from Jose or
being involved with his murder. After the detectives left the room,
defendant got up and checked the door to see if it was locked.
Detective Villalvazo and another detective, who were watching the
video feed, saw defendant jump up onto the table, reach up to a
ceiling tile, and push the tile up. Above the ceiling was a crawl
space leading to other rooms. Detective Villalvazo thought defendant
was trying to escape, so he and the other detective immediately ran
into the room. As they entered, defendant was already dropping down
and he sat in the chair. He said, "I was looking for a camera or
something." A ceiling tile remained out of place. The detectives
handcuffed defendant and escorted him to a holding cell for transport
to the jail.
A technician collected DNA from the inside of defendant's mouth with two buccal swabs. Detective Yee delivered the swabs to the DOJ lab so the analyst could compare defendant's DNA profile to that of the unknown male. The analyst explained that this additional testing of a suspect's DNA was required procedure after a cold hit. The analyst created defendant's DNA profile from the cells on the buccal swab, and determined that his profile matched that of the unknown male. At trial, the analyst testified that in her expert opinion, defendant was the same person as the unknown male who left the blood in the taxi.
I. Sufficiency of the Evidence
Defendant contends that for various reasons the evidence was insufficient to support his convictions. We reject each of his contentions.
The test of sufficiency of the evidence is whether, reviewing the whole record in the light most favorable to the judgment below, substantial evidence is disclosed such that a reasonable trier of fact could find the essential elements of the crime beyond a reasonable doubt. (People v. Johnson (1980) 26 Cal.3d 557, 578; accord, Jackson v. Virginia (1979) 443 U.S. 307, 319.) Substantial evidence is evidence that is "reasonable, credible, and of solid value." (People v. Johnson, supra, at p. 578.) "[M]ere speculation cannot support a conviction. [Citations.]" (People v. Marshall (1997) 15 Cal.4th 1, 35.) An appellate court must "presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence." (People v. Reilly (1970) 3 Cal.3d 421, 425.) An appellate court must not reweigh the evidence (People v. Culver (1973) 10 Cal.3d 542, 548), reappraise the credibility of the witnesses, or resolve factual conflicts, as these are functions reserved for the trier of fact (In re Frederick G. (1979) 96 Cal.App.3d 353, 367). Furthermore, an appellate court can only reject evidence accepted by the trier of fact when the evidence is inherently improbable and impossible of belief. (People v. Maxwell (1979) 94 Cal.App.3d 562, 577.) Our sole function is to determine if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. (Jackson v. Virginia, supra, 443 U.S. at p. 319; People v. Marshall, supra, at p. 34.) These principles are applicable regardless of whether the prosecution relies primarily on direct or circumstantial evidence. (People v. Lenart (2004) 32 Cal.4th 1107, 1125.)
Viewing the evidence presented in this case in accord with the foregoing principles, we find it to be "reasonable, credible, and of solid value"--hence, "legally sufficient" (People v. Marshall, supra, 15 Cal.4th at p. 35)--and ...