California Court of Appeals, Third District, Sacramento
CERTIFIED FOR PARTIAL PUBLICATION [*]
APPEAL from a judgment of the Superior Court of Sacramento County, Steve White, Judge, Super. Ct. No. 09F00826
Cliff Gardner, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Senior Assistant Attorney General, Catherine Chatman and Daniel B. Bernstein, Deputies Attorney General, for Plaintiff and Respondent.
ROBIE, Acting P. J.
John Lone Eagle was found strangled to death with a telephone cord in his Carmichael bedroom. About $4, 000 was missing from his bedroom. DNA consistent with the genetic profile of defendant Zang Her was found in three places in the house -- on a latex glove that was tangled in the telephone cord around John Lone Eagle’s neck, on a pillow in the same bedroom, and in a blood spot on the entryway floor to the house. Defendant was also linked to John Lone Eagle through defendant’s wife and an acquaintance. A jury found defendant guilty of first degree burglary and first degree murder with the special circumstance that the murder was committed during a burglary. The jury did not reach a verdict on whether defendant personally used a weapon (the telephone cord).
Defendant appeals from the resulting prison sentence of life without the possibility of parole, raising three issues relating to the evidence and the jury’s composition. Finding no merit in these contentions, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
The Prosecution’s Case
John Lone Eagle operated a business out of his home in which he bought and sold foreclosed homes. He employed four or five women to help him, and he transacted a lot of business in cash, which he kept in the house, oftentimes in plain view.
In the summer of 2004 when he was murdered, John Lone Eagle was in poor health and was not very mobile. One August morning, an employee arrived at his house to start work. The door was unlocked and the house had been ransacked. She went into his bedroom and saw him on the bed with a pillow over his head. When she shook him and he was unresponsive, she noticed there was blood all over his pillow and shirt. She called 911.
Police arrived and pronounced John Lone Eagle dead. He had been strangled with a telephone cord that was still around his neck.
Forensics testing by criminalists Kristie Abbott and Jeffrey Herbert was conducted on the pillow, the glove, and blood stains found on the ground in the entryway to the house, on the wall behind the front door, and on the wall of the stairwell.
As to three blood stains on the pillowcase, they contained a mixture of DNA from two contributors. In one of those samples (DNA 5), the major contributor had a DNA profile that “was the same” (meaning the profile matched defendant’s at all 15 designated loci on the genome) as the reference profile of defendant’s, and the minor contributor had a DNA profile that matched John Lone Eagle’s. In the Asian population, the chance of a random person having a DNA profile matching defendant’s was 1 in 150 quintillion. The two mixed-source samples (DNA 7 and DNA 9) on the pillowcase contained John Lone Eagle’s DNA profile and alleles from a minor contributor at “two and four” of the 15 loci. “The partial profile for the minor contributor to each mixture is consistent with the profile of the major contributor to DNA 5.”
As to the glove, it contained defendant’s DNA on the inside of three fingers that also contained John Lone Eagle’s DNA. Defendant’s and John Lone Eagle’s DNA were also detected in a mixture on two other spots on the glove, which also contained an “additional allele” that indicated there was a third contributor.
As to the blood stain found in the entryway on the ground, it contained about an even mixture of defendant’s and John Lone Eagle’s DNA profiles, as measured by a formula known as the combined probability of inclusion. The chances that a random person in the Hispanic population could have been a contributor to the sample were 1 in 140 million. In the African American and Caucasian populations, it would have been even rarer. When using this formula, criminalist Herbert assumed the entryway blood sample contained DNA from only two people, both males, and there was no allelic dropout. Had he not made those assumptions, the numbers would have been “more common.”
As to the blood stain on the wall in the stairwell, it contained DNA from only one person -- John Lone Eagle.
As to the blood stain on the wall behind the front door, it contained DNA from an unknown male.
Besides being linked to John Lone Eagle through DNA, defendant was linked to John Lone Eagle through defendant’s wife and through an acquaintance named Derek Wong. About two months after the murder, police found a piece of paper in Wong’s house that contained John Lone Eagle’s address. In a recorded phone call between defendant and his wife, defendant admitted being introduced to Wong by his wife.
Defendant worked for a paint store at the time of the murder. As part of his job, defendant often had to wear latex gloves that were similar to the one found at the crime scene. Based on this evidence, defense counsel argued that defendant’s discarded work ...