Filed 7/21/16 P. v. Morales CA2/5
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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 This opinion has not been certified for publication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.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                  DIVISION FIVE


THE PEOPLE,                                                          B264847

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. NA092058)
         v.

MARIO MORALES,

         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of Los Angeles County, Daniel J.
Lowenthal, Judge. Affirmed.
         Verna Wefald, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Lance E. Winters, Senior Assistant Attorney General, Michael R. Johnsen,
Supervising Deputy Attorney General, Wyatt E. Bloomfield, Deputy Attorney General,
for Plaintiff and Respondent.
                                    INTRODUCTION
       A jury convicted defendant and appellant Mario Morales of forcible rape (Pen.
Code, § 261, subd. (a)(2)1) and found true the allegations that in the commission of the
rape, defendant used a deadly weapon (a knife) (§ 12022.3, subd. (a)); kidnapped the
victim and the movement of the victim substantially increased the risk of harm to the
victim (§ 667.61, subds. (a) & (d)); and kidnapped the victim, personally used a deadly or
dangerous weapon, and tied or bound the victim (§ 667.61, subds. (a) & (c)). Defendant
admitted that he suffered a prior conviction under the Three Strikes law (§§ 667, subs.
(b)-(i) & 1170.12, subds. (a)-(d)), a prior serious felony conviction (§ 667, subd. (a)(1)),
and three prior convictions for which he served a prison term (§ 667.5, subd. (b)). The
trial court sentenced defendant to 67 years to life in state prison. On appeal, defendant
contends that his rape prosecution was barred by the 10-year statute of limitations in
section 801.1, subdivision (b), and the trial court violated his right to due process when it
admitted evidence of a prior sexual assault. We affirm.


                                     BACKGROUND
I.     Marlene T.’s (Marlene) Testimony
       In October 2001, Marlene lived in Long Beach with her fiancé and worked as a
caregiver. The night of October 30, 2001, Marlene worked on a caregiver assignment a
couple of blocks from her home. When she finished the assignment and started walking
home, defendant, who was in a car, asked her if she needed a ride. Marlene accepted a
ride because she was cold.
       As defendant drove Marlene home, she told defendant to drive “one way and he
went another way.” Marlene became scared. Defendant pulled into a church parking lot.
He blindfolded Marlene, put a knife to her throat, and threatened to kill her if she
screamed. Marlene believed defendant was going to kill her and said, “Don’t hurt me.”
She was afraid, and did not try to escape.


1      All statutory citations are to the Penal Code unless otherwise noted.

                                              2
       Defendant held the knife to Marlene’s throat and raped her. Defendant then drove
from the parking lot and told Marlene that if she called the police, he would kill her. At
some point, defendant put his foot against Marlene’s body, kicked her out of the car, and
drove away. Marlene removed the blindfold, pulled up her pants, and ran home.
       When Marlene arrived home, she called the police. A police officer arrived a
short time later, and Marlene reported the rape. The police officer took Marlene to a
hospital “to do a rape kit.”
       A few months after the rape, Marlene moved to Nevada. There, about four years
later, she suffered two misdemeanor convictions for prostitution and one misdemeanor
conviction for writing a check without sufficient funds.


II.    The Sexual Assault Examination and Subsequent DNA Analysis
       Susan Gorba was a registered nurse and a certified sexual assault nurse examiner.
Around 4:40 a.m., on October 30, 2001, she interviewed and examined Marlene.
Marlene complained of genital pain. According to Gorba, Marlene appeared to
remember well what had happened and provided details of the rape. Marlene informed
Gorba that she had sex with her “partner” the day before.
       Gorba’s physical examination revealed that Marlene’s labial area was swollen and
tender. Gorba took internal and external swabs of Marlene’s vagina. Gorba put material
from an internal vaginal swab onto a slide that she viewed with a microscope. Gorba
observed sperm with tails that indicated to her that the assault had happened within hours
and not days. Gorba prepared the swabs for packaging in the rape kit and gave the kit to
Long Beach Police Department Detective Michael Pennino. Pennino booked the rape kit
into evidence. On December 23, 2009, Long Beach Police Department Detective Hector
Nieves transported the rape kit to the Los Angeles County Sheriff’s Department crime
lab.
       For a substantial period of time thereafter, Marlene’s rape case was considered a
“cold” case. In February 2010, Melissa Murphy, a Senior DNA Analyst 1 at Bode
Technology in Lorton, Virginia, received Marlene’s rape kit or samples from the rape kit.

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In October 2011, the case was reopened after there was a DNA “hit” with a potential
suspect. On November 22, 2011, Long Beach Police Department Officer Mike Solomita
took a buccal swab from defendant’s mouth. In January 2012, Murphy received the
buccal swab taken from defendant.
       Murphy testified that the rape kit sample taken from Marlene’s external genitals
contained a DNA mixture of three or more individuals, including a major male
contributor. The overwhelming majority of the sample belonged to the major male
contributor. Murphy created a DNA profile for the major male contributor. Defendant’s
DNA profile matched the major male contributor’s DNA profile. Murphy explained that
the probability of randomly selecting a person from the United States Hispanic
population whose DNA profile matched the major male contributor was one in one
quintillion. One quintillion has 18 zeros; one billion has nine zeros. Murphy testified,
within a reasonable degree of scientific certainty, that defendant was the source of the
DNA obtained from the sample from Marlene’s external genitalia.
       The DNA profile for the major male contributor to the sample obtained from
Marlene’s vagina matched defendant’s DNA profile to a statistical certainty that
exceeded the statistical certainty that defendant contributed the external vaginal sample.
The probability of selecting a match from the United States Hispanic population was one
in two sextillion. One sextillion has 21 zeros, or three more zeros than one quintillion.
Murphy testified, within a reasonable degree of scientific certainty, that defendant was
the source of the DNA obtained from the sample from Marlene’s vagina.


III.   Evidence of Defendant’s 1992 Rape of Jaime M. (Jaime)
       Around 2:00 a.m. on July 18, 1992, Jaime was at a payphone in Long Beach.
Defendant pulled up in a blue Gran Torino. Defendant asked, “Are you okay? Do you
need a ride?” By that time, Jaime had been walking for some time and was tired. She
was trying to meet a friend at an establishment called “Spires” that was quite a few
blocks away. Jaime accepted a ride from defendant.



                                             4
       Defendant drove Jaime to the Spires, but her friend was not there. Defendant
seemed nice, so Jaime went with him to the Paramount area of North Long Beach to
drive around and hang out. Jaime asked defendant if he liked to party. At some point
they stopped and ingested “speed.”
       Later, defendant stopped and parked his car on the side of a house at 70th and
Paramount. He said he was going to get work clothes. Defendant approached the
house’s back door and “play[ed]” with the doorknob, but did not enter the house.
Defendant returned to the car, went to the trunk, and got in the car.
       Defendant drove down an alley to the railroad tracks behind AJ Wholesales.
Jaime became concerned and started to smoke a cigarette. She tried to roll down the
window, but defendant objected. “That’s when [defendant] turned into a monster.”
Jaime tried to figure out how to get out of the car.
       Defendant took out a large, industrial size, screwdriver. He held the screwdriver
to Jaime’s neck, and told her he was going to have sex with her. Jaime was scared and
tried to talk defendant “out of it” and “begged him not to.” Defendant told Jaime to take
off her clothes. She complied because she was afraid defendant was going to stab her in
the neck.
       Against Jaime’s will, defendant raped her. While defendant was raping Jaime, he
wanted to know if she was scared. After he raped Jaime, defendant drove two blocks
down the alley and used his foot to kick Jaime out of the car.
       Jaime immediately called the police and reported the rape. She could not tell the
police the name of the person who raped her or where the person lived or worked, but she
was able to describe his car and provide a couple of the car’s license plate numbers. The
police took Jaime to a hospital for a sexual assault examination.
       On July 30, 1996, Long Beach Police Department Officer Andre Sanchez
observed his partner, Officer Aaron Alu, search a blue Gran Torino. Alu recovered a
long, flathead screwdriver from the driver’s seat. Alu also recovered documents in
defendant’s name from the car.



                                              5
                                       DISCUSSION
I.     Statute of Limitations
       Marlene’s rape was committed on October 30, 2001. The complaint in this case
was filed on May 8, 2012, more than 10 years after the rape. Defendant contends that his
prosecution and conviction for forcible rape therefore were barred by the applicable 10-
year statute of limitations in section 801.1, subdivision (b), and the prosecution did not
successfully invoke the tolling provisions in section 803, subdivision (g)(1). The
Attorney General concedes that the prosecution filed the forcible rape charge outside of
the 10-year statute of limitations in section 801.1, subdivision (b) and did not establish
the predicates of the tolling provision, but argues, under section 799, that there was no
statute of limitations for the forcible rape charge in this case because the offense as
committed was punishable by life in prison under the One Strike law2 sentencing scheme.
We agree with the Attorney General.
       “The People must plead and prove, by a preponderance of the evidence, that
prosecution commenced within the statutorily prescribed time period.” (People v. Angel
(1999) 70 Cal.App.4th 1141, 1146-1147.) “[I]f the charging document indicates on its
face that the charge is untimely, absent an express waiver, a defendant convicted of that
charge may raise the statute of limitations at any time.” (People v. Williams (1999) 21
Cal.4th 335, 338.)
       A violation of section 261, subdivision (a)(2) is subject to the 10-year statute of
limitations in section 801.1, subdivision (b). (In re White (2008) 163 Cal.App.4th 1576,
1580.) Section 799, however, provides in part that the “[p]rosecution for an offense
punishable by death or by imprisonment in the state prison for life . . . may be
commenced at any time.” “For the purpose of determining the applicable limitation of
time pursuant to this chapter: [¶] (a) An offense is deemed punishable by the maximum
punishment prescribed by statute for the offense, regardless of the punishment actually

2     “Section 667.61, which provides indeterminate sentences for felony sex crimes
committed under particular circumstances, is sometimes called the ‘One Strike’ law.”
(People v. Anderson (2009) 47 Cal.4th 92, 99.)

                                              6
sought or imposed. Any enhancement of punishment prescribed by statute shall be
disregarded in determining the maximum punishment prescribed by statute for an
offense.” (§ 805, subd. (a).)
       In addition to finding defendant guilty of forcible rape, the jury also found true the
special allegation that in the commission of the rape defendant kidnapped Marlene and
his movement of Marlene substantially increased the risk of harm to the her. (§ 667.61,
subd. (d)(2).) Thus, under the One Strike law, defendant’s punishment for Marlene’s
rape was 25 years to life in prison. (§ 667.61, subds. (a), (c), & (d)(2).) Because the
prosecution for an offense punishable by life in prison “may be commenced at any time”
under section 799, the prosecution timely filed its case against defendant.
       Defendant argues that the One Strike law is an enhancement, and thus is subject to
section 805, subdivision (a)’s limiting provision that “[a]ny enhancement of punishment
prescribed by statute shall be disregarded in determining the maximum punishment
prescribed by statute for an offense.” Instead, the One Strike law as pleaded and proved
in this case is an alternate sentencing scheme for which there is no statute of limitations.
(People v. Perez (2010) 182 Cal.App.4th 231, 239-240.) Our Supreme Court explained
the difference between enhancements and alternate sentencing schemes in People v.
Acosta (2002) 29 Cal.4th 105 at pages 118-119 as follows: “[T]the One Strike law is not
. . . a sentence enhancement. ‘A sentence enhancement is “an additional term of
imprisonment added to the base term.” (Cal. Rules of Court, rule 405(c), italics added.)’
([People v.] Jefferson [(1999)] 21 Cal.4th [86,] 101 [(Jefferson)].) The 25-year minimum
term of the One Strike law ‘does not fall within [this] definition of an enhancement,
because it is not an “additional term of imprisonment” and it is not added to a “base
term.”’ (Ibid. [holding that 15-year minimum term under § 186.22, subd. (b)(4), is not an
enhancement].) Rather, it ‘sets forth an alternate penalty for the underlying felony itself,
when the jury has determined that the defendant has satisfied the [statute’s]
conditions. . . .’ (Jefferson, supra, 21 Cal.4th at p. 101.) Thus, the One Strike law does
not establish an enhancement, but ‘sets forth an alternative and harsher sentencing
scheme for certain enumerated sex crimes’ when a defendant commits one of those

                                              7
crimes under specified circumstances. (People v. Mancebo (2002) 27 Cal.4th 735, 741
[117 Cal.Rptr.2d 550, 41 P.3d 556]; see also [People v.] Murphy [(2001)] 25 Cal.4th
[136,] 155 [§§ 666, 667.71, and the Three Strikes law do not establish enhancements];
[People v.] Jenkins [(1995)] 10 Cal.4th [234,] 254 [§ 667.7 does not establish
enhancement]; People v. Jones (1997) 58 Cal.App.4th 693, 709 [68 Cal.Rptr.2d 506]
[One Strike law establishes ‘“alternative sentencing scheme,”’ not an enhancement].)”
Accordingly, the prosecution timely filed its case against defendant.


II.    Defendant’s Prior Rape of Jaime
       Defendant contends that the trial court violated his right to due process when it
admitted evidence that he raped Jaime. Specifically, he contends that Evidence Code
section 1108,3 the statute that permits the admission of such propensity evidence in sex
offense cases despite the general prohibition on propensity evidence in Evidence Code
section 1101, is facially unconstitutional; and the evidence of his prior rape violated his
right to due process because the evidence was more prejudicial than probative.
       In People v. Falsetta (1999) 21 Cal.4th 903, 907, 917, the California Supreme
Court held that propensity evidence is admissible under section 1108 in sex crimes cases
without violating the due process clause because section 1108’s incorporation of
Evidence Code section 352’s balancing test prevents an unfair trial. Defendant
acknowledges that the California Supreme Court has rejected his due process argument
and concedes that we are bound to follow that decision by Auto Equity Sales, Inc. v.
Superior Court (1962) 57 Cal.2d 450, 455.
       Moreover, even assuming the trial court erred in admitting evidence that defendant
raped Jaime and the admission violated defendant’s federal due process rights, any such
error was harmless under Chapman v. California (1967) 386 U.S. 18, 24 [reversal is


3      Evidence Code section 1108, subdivision (a) provides: “In a criminal action in
which the defendant is accused of a sexual offense, evidence of the defendant’s
commission of another sexual offense or offenses is not made inadmissible by Section
1101, if the evidence is not inadmissible pursuant to Section 352.”

                                              8
required in the case of the deprivation of due process rights unless the State can prove
beyond a reasonable doubt that the error did not contribute to the verdict] because the
evidence of defendant’s guilt was overwhelming. Marlene spent time in the car with her
assailant prior to the rape and identified defendant at trial as her assailant. After she was
raped, Marlene called the police and was taken to the hospital where Gorba performed a
sexual assault examination. Gorba prepared a rape kit that included internal and external
swabs of Marlene’s vagina. Murphy, a DNA expert, compared the DNA profiles from
the samples taken from Marlene to defendant’s DNA profile and determined that they
matched. With respect to both the external and internal samples, Murphy testified that
the probability of randomly selecting a person from the United States Hispanic
population whose DNA profile matched the major contributor was astronomical. Given
the overwhelming evidence of defendant’s guilt, any error was harmless beyond a
reasonable doubt.




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                                    DISPOSITION
      The judgment is affirmed.
      NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.




                                               RAPHAEL, J.


I concur:



             KRIEGLER, Acting P. J.




      Judge of the Superior Court of the County of Los Angeles, assigned by the Chief
Justice pursuant to article VI, section 6 of the California Constitution.

                                          10
People v. Mario Morales
B264847


BAKER, J., Concurring




       I agree the judgment should be affirmed. I write separately to explain why I reject
defendant’s claim his due process rights were violated by the admission of evidence,
under Penal Code section 1108, concerning the prior rape of Jamie.
        The majority is, of course, correct that we are obligated to follow People v.
Falsetta (1999) 21 Cal.4th 903, and that decision disposes of defendant’s argument that
section 1108 is facially unconstitutional. Defendant also appears to contend, albeit in just
two sentences of his opening brief, that admission of the Penal Code section 1108
evidence violated his due process rights as applied because the evidence was more
prejudicial than probative. I reject that contention; the trial court did not abuse its
discretion when deciding the prior rape should not be excluded under Evidence Code
section 352. (People v. Lewis (2009) 46 Cal.4th 1255, 1286-1287; People v. Falsetta,
supra, at pp. 913, 917-918.)
       The majority goes on to hold the jury’s consideration of the prior rape evidence
was harmless beyond a reasonable doubt even if admission of the evidence violated
defendant’s due process rights because there is otherwise overwhelming evidence of
defendant’s guilt. I am not so sure, and I do not believe we need to answer that question
to resolve the issues presented for our consideration.




                                         BAKER, J.
