Filed 8/20/14 P. v. Washington CA2/7
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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or ordered published for purposes of rule 8.1115.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                DIVISION SEVEN


THE PEOPLE,                                                          B245418

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. SA057427)
         v.

RICHARD WASHINGTON,

         Defendant and Appellant.




         APPEAL from a judgment of the Superior Court of Los Angeles County, James R.
Dabney, Judge. Affirmed as modified.
         Charlotte E. Costan, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Victoria B. Wilson, Joseph P.
Lee, and Noah P. Hill, Deputy Attorneys General, for Plaintiff and Respondent.
                                                 _______________
       Richard Washington was convicted by a jury of first degree felony murder with
special circumstances, kidnapping to commit robbery, two counts of first degree burglary,
robbery, assault with a deadly weapon, forcible rape, forcible sexual penetration and
kidnapping for extortion. On appeal Washington contends the trial court committed
several errors including (1) denying his motion for mistrial after the prosecutor disclosed
he had run criminal background checks on sworn jurors during the trial; (2) granting the
People’s pretrial motion to join sexual assault charges filed against Washington with the
trial on the murder, robbery, aggravated kidnapping and aggravated assault charges;
(3) admitting prejudicial evidence and excluding relevant evidence favorable to the
defense; (4) failing to impose sanctions for the People’s statutory discovery violations;
(5) refusing his requests to instruct the jury on several lesser included offenses; and
(6) permitting witnesses who had not performed forensic tests to testify to test results in
violation of his Sixth Amendment right to confrontation. He also contends his conviction
for kidnapping to commit robbery is not supported by substantial evidence and his
convictions for both rape and forcible sexual penetration arising out of the same act was
improper. We strike the forcible sexual penetration conviction and an improperly
imposed parole revocation fine, order the correction of clerical errors relating to
sentencing and, as modified, affirm the judgment.
                  FACTUAL AND PROCEDURAL BACKGROUND
       1. The Initial Information
       An initial information filed September 22, 2006 charged Washington with five
counts related to offenses committed against Dr. Jose Segundo in June 2005: attempted
                                                       1
murder (Pen. Code, §§ 664, 187, subd. (a)) (count 1), kidnapping to commit robbery
(§ 209, subd. (b)(1)) (count 2), first degree burglary (§ 459) (count 3), first degree
residential robbery (§ 211) (count 4) and assault with a deadly weapon (§ 245,
subd. (a)(1)) (count 5). It was specially alleged as to each of those counts that


1     Statutory references are to the Penal Code unless otherwise indicated or context
otherwise makes clear.

                                              2
Washington had personally inflicted great bodily injury against a person 70 years of age
or older (§ 12022.7, subds. (a), (c)). The information also charged Washington with two
counts related to crimes against Marie Fouquet in May 2004: murder (§ 187, subd. (a))
(count 6) and first degree burglary (§ 459) (count 7). It was specially alleged as to
count 6 that the murder was committed during the commission of a burglary (§ 190.2,
subd. (a)(17)).
       2. The People’s Motion for Joinder and the Filing of an Amended Information
       In February 2007 the People discovered a sperm sample taken from rape victim
Betty K. in 2001 matched Washington’s DNA profile. Pursuant to section 954, in July
2007 the People moved, over a defense objection, to join charges against Washington
relating to the 2001 sexual assault of Betty K. with the trial on the 2004 and 2005
offenses charged in the initial information. Following a hearing, the court granted the
motion for joinder on April 29, 2008, ordered the initial information amended to include
charges of forcible rape (§ 261, subd. (a)(2)) (count 8) and forcible sexual penetration
(§ 289, subd. (a)(1)) (count 9) and denied Washington’s concomitant motion for
severance. Pursuant to the court’s order, an amended information was filed July 18, 2008
that included each of the counts and special allegations in the initial information filed
September 22, 2006, as well as newly-added counts 8 and 9. The amended information
also added special allegations that the sexual assault offenses in counts 8 and 9 were
committed during the commission of a burglary (§ 667.61, subds. (a) & (d)).
       3. The Second Amended Information
       A second amended information (the operative charging document) filed
January 12, 2011 included each of the nine counts and special allegations from the
July 18, 2008 amended information and added a new charge of kidnapping Segundo for
ransom/extortion (§ 209, subd. (a)) (count 10). It was specially alleged as to the newly-
added count 10 that Washington had personally inflicted great bodily injury against a
person 70 years of age or older (§ 12022.7, subds. (a), (c)). It was further alleged as to all
counts that Washington had served four separate prison terms for felonies within the
meaning of section 667.5, subdivision (b). The People did not seek the death penalty

                                              3
with regard to the alleged special circumstances murder. Washington pleaded not guilty
and denied all special allegations.
       4. The Evidence at Trial
               a. The offenses against Segundo (counts 1 through 5, count 10)
       After he awoke from a nap in his backyard hammock on the afternoon of June 29,
2005, 82-year-old Segundo went inside his home and unexpectedly encountered
Washington. Washington saw Segundo and struck him in the head and body multiple
times with a large wooden board, continuing the assault even after Segundo had fallen to
the floor. Washington then pushed Segundo into another room in the house, again
knocked him to the floor, put his foot on Segundo’s neck and face while pinning him to
the ground and struck him several more times with the piece of wood. Washington
demanded Segundo tell him where he stored his money. Segundo, on blood thinning
medication and bleeding profusely from his wounds, told Washington he had money in
another bedroom about 10 to 15 feet away. Washington pulled Segundo up and forced
him to the bedroom where Segundo retrieved $200 to $300 in cash and immediately
handed it to Washington. Washington then shoved Segundo into a nearby closet, ordered
him to lie down, locked the closet door and placed a chair under the doorknob to prevent
Segundo from escaping. Washington asked through the closet door where Segundo kept
his ATM card and demanded Segundo give it to him along with the personal
identification number (PIN) that would activate the card. Segundo slid the card under the
closet door but gave Washington a false PIN. After Washington left, Segundo was able,
with some effort, to unlatch the closet door and free himself. He noticed his cell phone
had also been taken from his dresser. Segundo called the police emergency operator
from a house telephone and reported the attack. He was immediately hospitalized.
Segundo suffered a fracture to his hand and required numerous staples and sutures for his
head wounds.




                                            4
              b. The offenses against Fouquet (counts 6 and 7)
       On the afternoon of May 30, 2004 Raymond Fouquet arrived home to find his 78-
year-old wife, Marie Fouquet, dead, her body sprawled awkwardly on the floor. Initially,
both Raymond and paramedics believed she had suffered a heart attack. Soon, however,
Raymond noticed jewelry and credit cards were missing from the bedroom. An
investigation revealed Washington’s fingerprints in the Fouquets’ home; Raymond
Fouquet’s watch was found during a search of Washington’s apartment; and video
surveillance recordings from several banks and credit unions showed Washington
attempting unsuccessfully to use an ATM card at the same time and at the same locations
the Fouquets’ ATM card had been used and declined for an invalid PIN. The deputy
coroner who performed Marie Fouquet’s autopsy, Dr. Stephen Scholtz, observed she had
suffered bruising to the mouth and to the knuckles and concluded she had died from
“mechanical asphyxia” resulting from chest compression and probable face compression.
Dr. Scholtz testified mechanical asphyxia occurs when pressure from outside the body
prevents respiration. Dr. Scholtz also found fractures to three of Marie Fouquet’s ribs,
consistent with an assailant having placed his foot on her chest. She also had defensive
wounds. Jody Hynds, a forensic analyst at a private DNA testing laboratory, testified
Marie Fouquet’s fingernail clippings were examined for DNA. Test results showed that,
although most of the DNA present was Marie Fouquet’s, there was also a second, minor
source of DNA underneath her nails, consistent with her defending herself from an
attacker. The amount of DNA from a second source was too little to reach an affirmative
conclusion, but Washington “could not be ruled out” as the minor contributor of the
DNA.
              c. The offenses against Betty K. (counts 8 and 9)
       On the morning of April 26, 2001 63-year-old Betty K., whose right arm had been
amputated several years earlier, was home alone when Washington approached an open
backdoor and told Betty he was looking for his cat. After he cited the name of Betty’s
own cat, Betty became suspicious and demanded Washington leave. When she tried to
close the door, Washington overpowered her, pushed the door in and threw her to the

                                             5
floor. He hit Betty in the face, removed her pants and shirt, pushed part of a floor rug
into her mouth to stop her from screaming, put his mouth on her breasts and inserted
something in her vagina for about 90 seconds. Betty did not know if Washington had
                                        2
penetrated her with his finger or penis. During the assault Betty pulled a chain from
Washington’s neck; he got up to retrieve it. Betty managed to escape at that point,
running out the front door and screaming for her neighbor to call the police. DNA swabs
taken from the exterior portion of Betty’s vagina the day of the incident revealed sperm
that, when tested, matched Washington’s DNA. Tracey Ann Gomez, the forensic nurse
who had examined Betty at the hospital within hours of the rape, testified semen can be
pushed from the inside to the outside of the vagina by urination or by a prolapsed
bladder, both of which had occurred in this case prior to Betty’s same-day medical
examination. Washington’s fingerprint and handprint were also recovered from Betty’s
home.
               d. Washington’s defense
        Washington did not testify or present any other witness testimony. His primary
defense theory was that the People had failed to prove he was the perpetrator of any of
the charged crimes.
        5. The Verdict and Sentence
        The jury acquitted Washington of the attempted murder of Segundo (count 1),
found him guilty of all the other charged offenses and found true each of the special
circumstances and specially alleged enhancements presented to it. In a bifurcated court


2       Betty was asked, “Could you see what the man was doing? She responded, “No.”
        “Q: What could you feel?
        “A: I felt something. I didn’t know if it was his penis or his hands or what.
        “Q. And what did you feel his penis or his hand doing?
        “A: Inside my vagina.
        “Q: For approximately how long?
        “A: Ninety seconds.”

                                              6
trial on the prior prison term allegations, the court found Washington had served three
separate prison sentences for felonies within the meaning of section 667.5,
subdivision (b).
       The court sentenced Washington to two consecutive terms of life without the
possibility of parole (LWOP) for counts 6 (felony murder with special circumstances)
and 10 (kidnapping for extortion resulting in bodily harm), plus five years for the
section 12022.7, subdivision (c), enhancement for count 10 (the section 12022.7,
subdivision (a), enhancement for the same count was stayed pursuant to section 654); and
two 25-years-to-life terms under the one strike law (§ 667.61, subds. (a) & (d)) for
counts 8 (forcible rape) and 9 (forcible sexual penetration by an unknown object) to run
consecutively to each of the LWOP sentences but concurrently with each other; plus
three years for the prior felony prison term enhancements (§ 667.5, subd. (b)). Sentence
on the remaining counts was imposed and stayed pursuant to section 654.
                                      DISCUSSION
       1. The Trial Court Did Not Err in Denying Washington’s Mistrial Motion
              a. Relevant proceedings
       On the third day of trial the People moved to excuse juror number 12 on the
ground she had deliberately concealed her prior arrest for possession and sale of rock
cocaine when asked about arrests during voir dire. The prosecutor explained he had
discovered the falsehood after comparing the jurors’ names with information in its
                                                                         3
Prosecution Information Management System, a prosecutorial database. Once juror
number 12’s name was found in the database, information regarding her criminal record




3       Both state and local law enforcement agencies maintain criminal record databases
that are used by law enforcement and prosecutors in the course of their duties. (See
§§ 13100 [“The Legislature finds and declares . . . [¶] (a) [t]hat the criminal justice
agencies in this state require, for the performance of their official duties, accurate and
reasonably complete criminal record offender information”]; 13102 [listing the type of
criminal offender record information compiled].)

                                             7
           4
(rap sheet) was obtained, and the arrest discovered. The court immediately questioned
juror number 12, who claimed she had forgotten about the arrest when responding during
voir dire. The court found her explanation not credible, excused her from the jury and
replaced her with an alternate juror.
        Washington’s counsel moved for a mistrial, arguing the prosecution’s act of
investigating without due cause the criminal records of jurors by using a database to
which the defense lacked any access was unfair and deprived him of a fair trial and his
                                                             5
jury trial right under the Sixth and Fourteenth Amendments. The court denied the
motion for mistrial, but ordered the prosecutor to provide the defense with the rap sheets
and any other information his office had uncovered in its investigation so the prosecution
and defense could be on “equal footing.” Defense counsel requested the court direct the
People to obtain the rap sheets of each sworn juror and alternate juror and provide that
information to the defense. The court refused, stating, “Your request is noted and denied,
because you are on equal footing. They don’t have that information and now neither do
you.”




4      An individual’s criminal offender record information—often called a rap sheet
(see Cal. Criminal Law: Procedure and Practice (Cont.Ed.Bar (2014) § 12.5, pp. 286-
288)—is considered a confidential record, accessible only to persons or entities,
including prosecutors, specified by statute. (See §§ 11105, subd. (b), 13300, subd. (b)(3);
see also 13300, subd. (b)(9) [state agency must furnish information to counsel for
criminal defendant when authorized by statute or decisional law].)
5       Defense counsel stated: “For the District Attorney to be conducting criminal
background investigations of the jurors when I don’t have the same access to that
information puts the defense in a very unequal position.” While defense counsel objected
to the removal of the juror, asserting she was credible, he argued the juror’s credibility
was irrelevant to his mistrial motion: “[The question] is whether or not the prosecution is
using their resources that I don’t have to gain an unlawful or unfair tactical advantage in
the use of investigation to excuse jurors at any point in time.”

                                             8
               b. Standard of review
        A trial court should grant a mistrial “only when a party’s chances of receiving a
fair trial have been irreparably damaged . . . .” (People v. Bolden (2002) 29 Cal.4th 515,
555; accord, People v. Gonzales and Soliz (2011) 52 Cal.4th 254, 291 [“we have stated
that a trial court should grant a mistrial only if the defendant will suffer prejudice that is
incurable by admonition or instruction”].) We review the trial court’s ruling denying a
mistrial for abuse of discretion. (Bolden, at p. 555; People v. Ayala (2000) 23 Cal.4th
225, 282.)
               c. Washington has not demonstrated a deprivation of his constitutional
                  rights or incurable prejudice
        California courts have long condoned the prosecutorial practice of using the
resources available to it—including access to criminal record databases not available to
the defendant absent an authorizing statute or court order—to investigate potential jurors
as an aid in jury selection. (People v. Brawley (1969) 1 Cal.3d 277, 293-294; People v.
Murtishaw (1981) 29 Cal.3d 733, 765 (Murtishaw), overruled on another ground in
People v. Boyd (1985) 38 Cal.3d 762, 772-773.) Historically, as long as the People
represented to the court they had uncovered no information in their investigation that
would justify excusing a potential juror for cause, the defense was not permitted access to
any information the prosecution had compiled on the venire panel. (Brawley, at pp. 293-
294.)
        That practice was challenged in Murtishaw, when a defendant requested either
discovery of the information the People had obtained on potential jurors through use of
prosecutorial databases or, alternatively, sufficient funds to conduct its own investigation
of the venire panel. Reviewing the trial court’s order denying both requests, the Supreme
Court recognized the People’s access to databases containing information on potential
jurors could leave a defendant, who lacks similar access, at a significant disadvantage
during jury selection. “The danger posed by denial of discovery, however, is not merely
that the prosecutor may conceal facts showing a juror is disqualified, but that he will
obtain a significant advantage over the defense in exercising peremptory challenges.”


                                               9
(Murtishaw, supra, 29 Cal.3d at p. 766, fn. 27.) The Court concluded fairness required
vesting the trial court with discretion to order the prosecutor to disclose to the defense
information on the jury venire he or she acquired from those databases: “[I]t is apparent
that the prosecutor here believes the advantage he gains from jury investigations and
records justifies the expense. When courts then deny defendants who cannot afford
similar investigations access to the prosecutor’s records, the result is that prosecutors in
case after case will have substantially more information concerning prospective jurors
than do defense counsel. Such a pattern of inequality reflects on the fairness of the
criminal process. We therefore hold, under our authority to supervise the administration
of California criminal procedure [citation] that following the finality of this opinion a
trial judge will have discretionary authority to permit defense access to jury records and
reports of investigations available to the prosecution.” (Id. at pp. 766-767, fn. omitted.)
       As Washington acknowledges, under Murtishaw the People were permitted to
obtain the rap sheets of potential jurors as part of their investigation of the jury venire.
However, he asserts Murtishaw did not address, and thus is not authority for, whether a
prosecutor may wait until after the jury is sworn to investigate jurors without at least
requesting leave of court and showing good cause for such an investigation. According
to Washington, the prosecutor’s “sub-rosa investigation of seated jurors” constituted
egregious misconduct that denied him his federal constitutional rights to a fair and
impartial jury, equal protection and due process and violated Code of Civil Procedure
sections 206 and 237.
       At the threshold, Washington has not shown the prosecutor committed any
misconduct. (See People v. Montes (2014) 58 Cal.4th 809, 869 [“‘[a] prosecutor’s
conduct violates the Fourteenth Amendment to the federal Constitution when it infects
the trial with such unfairness as to make the conviction a denial of due process’”]; People
v. Morales (2001) 25 Cal.4th 34, 44 [same].) While no reason in the record is given for
the prosecutor’s delay in investigating the jury panel, Washington has cited no relevant
authority for the proposition that such an investigation, permissible before the jury has
been sworn, somehow became impermissible once the jury was selected.

                                              10
       None of Washington’s arguments for finding a constitutional deprivation in these
circumstances is persuasive. His contention he was deprived of his Sixth and Fourteenth
Amendment right to a fair and impartial jury is premised not on the court’s replacement
of juror number 12 after finding she had lied during voir dire—an entirely proper ruling
                                                         6
(see People v. Wilson (2008) 44 Cal.4th 758, 820-821) —but on his speculation the
composition of the jury might have been different had he been apprised during voir dire
of the results of the prosecutor’s investigation. To the extent Washington suggests the
delay in the investigation deprived him of the ability to exercise his peremptory
challenges differently, the Supreme Court has made clear that alone does not constitute
constitutional error. (See People v. Black (2014) 58 Cal.4th 912, 916-917
[“‘[P]eremptory challenges are not of constitutional dimension,’ but are merely ‘a means
to achieve the end of an impartial jury.’ [Citation.] Mere loss of a peremptory challenge
does not automatically constitute a violation of the federal constitutional right to a fair
and impartial jury. [Citation.] If no biased or legally incompetent juror has served on
defendant’s jury, the judgment against him does not suffer from a federal constitutional
infirmity, even if he had to exercise one or more peremptory challenges to excuse
prospective jurors whom the court should have excused for cause”]; People v. Farley
(2009) 46 Cal.4th 1053, 1096 [“‘“[s]o long as the jury that sits is impartial, the fact that
the defendant had to use a peremptory challenge to achieve that result does not mean”’ a
constitutional violation occurred].)
       Washington’s due process and equal protection arguments are similarly infirm.
He contends it was simply unfair to permit the prosecutor to conduct an investigation
using databases to which he lacked access. However, no court, including Murtishaw, has
recognized a federal constitutional right to access to prosecutorial databases to obtain
information on the jury venire; and the Supreme Court has made clear that denial of
access alone, even when an abuse of discretion, will rarely compel reversal. (See


6    Washington expressly states he is not challenging the replacement of juror
number 12.

                                              11
Murtishaw, supra, 29 Cal.3d at p. 767 [“The foregoing holding does not require us to
reverse the conviction in the present case. . . . [I]n any individual case it is entirely
speculative whether denial of access caused any significant harm to the defense.
Consequently, under the test of prejudice established in the California Constitution (art.
VI, § 13) and People v. Watson [(1956)] 46 Cal.2d 818, 836, the denial of access is not
reversible error.”]; accord, People v. Pride (1992) 3 Cal.4th 195, 227.) More critically,
this case does not involve denial of access. The trial court ensured Washington was
given all the information the prosecutor had gathered on the jurors. There was no
disparate treatment and no prejudice.
       Washington also contends the prosecutor’s investigation of jurors whose identities
                                          7
were sealed at the time they were sworn violated Code of Civil Procedure sections 206
and 237. Washington has forfeited this argument, which he did not make in the trial
court. (People v. Valdez (2012) 55 Cal.4th 82, 142; People v. Lucas (1995) 12 Cal.4th
415, 477.) His contention lacks merit in any event, as neither statute is on point. Code of
Civil Procedure section 206 addresses the circumstances under which a prosecutor or
defense counsel may discuss a verdict and deliberations with jurors after they have been
discharged. Code of Civil Procedure section 237 governs the court’s powers to seal and
unseal juror identification information and specifies the procedure for obtaining that
information after a verdict has been recorded, including notifying the former juror of the
request and giving the former juror the opportunity to object. Nothing in either statute
addresses, much less proscribes, the prosecutor’s internal and confidential investigation
of seated jurors during trial using prosecutorial databases so long as it is accomplished in
a manner that is not likely to influence the juror. (Cf. Rules Prof. Conduct, rule 5-320(E)
[“[a] member shall not directly or indirectly conduct an out of court investigation of a


7       Washington’s assertion the jurors’ names were sealed at the time of the
prosecutor’s investigation of juror number 12 appears incorrect. Prior to trial the court
ordered the jurors’ questionnaires sealed. The record indicates the court ordered all juror
identification information sealed pursuant to Code of Civil Procedure section 237,
subdivision (a)(2), after the trial concluded.

                                              12
person who is either a member of the venire or a juror in a manner likely to influence the
state of mind of such person in connection with present or future jury service”].)
       Washington also advances several policy arguments for prohibiting the prosecutor
from engaging in an investigation of jurors once they are sworn. For example, he asserts
this practice will have a chilling effect on potential jurors’ willingness to serve. The
People respond the only effect it will have is to encourage jurors to be honest during voir
dire. The limited record before us does not permit an in-depth evaluation of these
arguments, much less commentary on the wisdom of the prosecutorial practice. We hold
simply that any potential for prejudice in this case caused by the prosecutor’s decision to
obtain rap sheets of sworn jurors identified in its prosecutorial database was promptly and
properly remedied when the court ordered the People to turn over to the defense the
materials it had obtained in its investigation: The court created the level playing field
envisioned in Murtishaw. There was no constitutional error and certainly no incurable
                                                                    8
prejudice. Washington’s motion for mistrial was properly denied.
       2. The Court Did Not Err in Ordering Joinder of the Sexual Assault Charges with
          the Trial on the Murder, Attempted Murder and Aggravated Assault Charges
       Section 954 permits two or more offenses of the same class or connected together
in their commission to be consolidated for trial against a single defendant. “[B]ecause
consolidation or joinder of charged offenses ordinarily promotes efficiency, that is the
course of action preferred by law.” (Alcala v. Superior Court (2008) 43 Cal.4th 1205,
               9
1220 (Alcala).) When the statutory requirements for joinder have been met, the
defendant can demonstrate error in the denial of a motion to sever only by a clear

8      Washington’s challenge to the court’s denial of his new trial motion, predicated on
the same grounds, also fails for the reasons we have discussed.
9        The efficiency and benefits of a joint trial were described in People v. Bean (1988)
46 Cal.3d 919, 939-940: “A unitary trial requires a single courtroom, judge, and court
attachés. Only one group of jurors need serve, and the expenditure of time for jury voir
dire and trial is greatly reduced over that required were the cases separately tried. In
addition, the public is served by the reduced delay on disposition of criminal charges both
in trial and through the appellate process.” (Accord, People v. Soper (2009) 45 Cal.4th
759, 772.)

                                             13
showing of potential prejudice. (Ibid.; People v. Soper (2009) 45 Cal.4th 759, 774
(Soper).) A trial court’s consolidation order or denial of severance amounts to a
prejudicial abuse of discretion if its ruling falls outside the bounds of reason. (Alcala, at
p. 1220, Soper, at p. 774.)
       “In determining whether a trial court abused its discretion under section 954 in
declining to sever properly joined charges, “‘we consider the record before the trial court
when it made its ruling.’” (Soper, supra, 45 Cal.4th at p. 774.) “First, we consider the
cross-admissibility of the evidence in hypothetical separate trials. [Citation.] If the
evidence underlying the charges in question would be cross-admissible, that factor alone
is normally sufficient to dispel any suggestion of prejudice and to justify a trial court’s
refusal to sever properly joined charges. [Citation.] Moreover, even if the evidence
underlying these charges would not be cross-admissible in hypothetical separate trials,
that determination would not itself establish prejudice or an abuse of discretion by the
trial court in declining to sever properly joined charges.” (Id. at pp. 774-775; accord,
Alcala, supra, 43 Cal.4th at p. 1220.)
       If the “evidence underlying properly joined charges would not be cross-
admissible, we proceed to consider ‘whether the benefits of joinder were sufficiently
substantial to outweigh the possible “spill-over” effect of the “other-crimes” evidence on
the jury in its consideration of the evidence of defendant’s guilt of each set of offenses.’
[Citations.] In making that assessment, we consider three additional factors, any of
which—combined with our earlier determination of absence of cross-admissibility—
might establish an abuse of the trial court’s discretion: (1) whether some of the charges
are particularly likely to inflame the jury against the defendant; (2) whether a weak case
has been joined with a strong case or another weak case so that the totality of the
evidence may alter the outcome as to some or all of the charges; or (3) whether one of the
charges (but not another) is a capital offense, or the joinder of the charges converts the
matter into a capital case. [Citations.] We then balance the potential for prejudice to the
defendant from a joint trial against the countervailing benefits to the state.” (Soper,
supra, 45 Cal.4th at p. 775; see Alcala, supra, 43 Cal.4th at pp. 1220-1222.)

                                              14
       Washington does not challenge the trial court’s ruling the sexual assault charges
were in the same class of offenses as the murder, robbery and aggravated assault charges.
(See People v. Alvarez (1996) 14 Cal.4th 155, 188 [rape offense was properly joined with
assault and murder offenses under section 954; “rape is an assaultive crime against the
person, as are robbery and murder”].) Rather, he argues the court erred in permitting
joinder because none of the evidence would have been cross-admissible had the charges
been filed separately. (See People v. Johnson (1988) 47 Cal.3d 576, 589 [in terms of a
severance motion cross-admissibility requires that “‘evidence pertinent to one case
[would] have been admissible in the other under the rules of evidence which limit the use
of character evidence or prior similar acts to provide conduct. (Evid. Code, § 1101,
subds. (a), and (b)’”]; Soper, supra, 45 Cal.4th at pp. 776-777.) The People assert cross-
admissibility was likely under section 1101, subdivision (b), to show a “common scheme
or plan” or modus operandi to prey on vulnerable victims—the elderly and disabled—
during the day in their own homes. The trial court expressed some uncertainty about
whether the sexual assault crimes were cross-admissible with the other charged offenses
but ultimately determined joinder was proper whether or not they were cross-admissible.
       We agree with the trial court’s conclusion the issue of cross-admissibility is not
determinative here. Even if the two offenses were not sufficiently similar under Evidence
Code section 1101, subdivision (b), to be cross-admissible, the other factors, as the trial
court recognized, weighed overwhelmingly in favor of joinder: The sexual assault
offenses were no more inflammatory than the murder, attempted murder, robbery and
aggravated assault charges filed against Washington and tried together. (See People v.
Alvarez, supra, 14 Cal.4th at p. 188; People v. Scott (2011) 52 Cal.4th 452, 469-473 [trial
court did not abuse its discretion in denying severance of burglary and rape charges from
murder charge; burglary and rape charges no more inflammatory than murder of different
victim].) Moreover, this was not a situation in which a strong case was paired with a
weak one. The evidence against Washington for his sexual assaults was strong.
Washington’s DNA was recovered from Betty’s body; his fingerprints were found in her
home. Likewise, as to the Fouquet burglary and murder, Washington’s fingerprints were

                                             15
found in the Fouquets’ home, Raymond Fouquet’s wristwatch was found in
Washington’s apartment, and he was captured on surveillance video attempting to use the
Fouquets’ ATM card. The trial court did not abuse its discretion in concluding at the
outset of trial that Washington had failed to meet his burden of proving consolidation of
the sexual assault offenses with the other charged crimes created a potential for prejudice.
       Washington also contends, even if joinder was proper when considered before
trial, consolidation ultimately denied him a fair trial. (See Soper, supra, 45 Cal.4th at
p. 783 [even if a trial court’s denial of severance was correct when made, a reviewing
court must reverse the judgment if the defendant shows joinder actually resulted in gross
unfairness amounting to a denial of due process]; Williams v. Superior Court (1984) 36
Cal.3d 441, 448 [“the joinder laws must never be used to deny a criminal defendant’s
fundamental right to due process and a fair trial”]; People v. Smallwood (1986) 42 Cal.3d
415, 448 [same].) In considering whether joinder, even if proper at the time, nonetheless
deprived a defendant of due process, the reviewing court examines all the evidence
actually introduced as well as any spillover effect of the evidence from the joint charges.
(See People v. Macklem (2007) 149 Cal.App.4th 674, 698.) The defendant bears the
burden of demonstrating prejudice. (People v. Sandoval (1992) 4 Cal.4th 155, 174.)
       Washington asserts the prejudice from joinder was evident when the prosecutor
referred in closing argument to Washington’s propensity to attack vulnerable people in
their homes. The statement was a fair comment on the admissible evidence and, contrary
to Washington’s contention, was not itself misconduct. Moreover, the same observation
about Washington could have been made absent joinder of the sexual assault offenses.
More significantly, the trial court instructed the jury “to consider each count separately
and return a separate verdict for each one.” The court also instructed, “Remember that
you may not convict the defendant of any crime unless you are convinced that each fact
essential to the conclusion that the defendant is guilty of that crime has been proved
beyond a reasonable doubt.” The jury demonstrated it was mindful of that
admonishment, acquitting Washington of the charge of attempted murder. Nothing in



                                             16
this record supports Washington’s contention the order of joinder ultimately resulted in a
denial of due process.
       3. The Trial Court’s Evidentiary Rulings Do Not Compel Reversal
              a. Evidence Washington’s nickname is Bam-Bam
       During his investigation of the crimes against Segundo, Los Angeles Police
Detective Warren Porche determined someone had used Segundo’s stolen cell phone to
call Shayla Wrought and Taneya Hanson. Without objection, Wrought identified one of
the numbers called as hers and testified Washington was also known as Bam-Bam.
Detective Porsche later testified Hanson had told him she had received a call from
“Richie”; she did not know Richie’s last name but he was sometimes referred to as Bam-
Bam. Washington objected pursuant to Evidence Code section 352 on the ground his
nickname would be recognized as a gang moniker and thus highly prejudicial. While
acknowledging the nickname may be familiar to some jurors as the name of a character
from The Flintstones cartoon, the trial court concluded there was nothing intrinsic in the
                                                                                            10
name or the prosecutor’s use of it that suggested membership in a criminal street gang.
       Washington contends the nickname, even if relevant to prove the identity of the
caller, was far more prejudicial than probative because it essentially labeled him as a
member of a criminal street gang. Assuming Washington’s late objection was sufficient
to adequately preserve the issue for appeal, his contention lacks merit. Segundo was
unable to identify his attacker. The identity of the caller using Segundo’s cell phone was
highly probative evidence. The trial court’s careful weighing of the evidence and its
determination the nickname was not intrinsically suggestive of membership in a criminal
street gang was well within its discretion. (See People v. Williams (2008) 43 Cal.4th 584,
634 [trial court has broad discretion under Evid. Code, § 352, and its ruling will not be

10     The prosecutor invoked the cartoon reference during closing argument, suggesting
it was not surprising a person named Bam-Bam would use a wooden board to beat
someone. Washington’s objection to the nickname at trial was limited to the purported
gang connotations inherent in the name; he did not argue below, and does not contend on
appeal, the nickname was prejudicial because its namesake cartoon character was known
for beating things with a wooden club.

                                            17
disturbed absent evidence it was arbitrary or capricious]; People v. Mills (2010)
48 Cal.4th 158, 195 [same]; People v. Brown (2003) 31 Cal.4th 518, 551 & fn. 12 [trial
court did not abuse its discretion in admitting evidence defendant was also known as
Bam-Bam; “the court carefully weighed defendant’s concern over the potentially
prejudicial effect of the nickname with the prosecutor’s assertion that many of the
witnesses knew defendant only by that name”].)
              b. Admission of Washington’s booking photograph from an arrest in 2000
       During trial Betty described her attacker as a young Black male, medium build,
standing approximately five feet, seven or eight inches tall with a diamond stud in his left
ear. She did not identify Washington specifically, stating only there were a lot of
similarities between him and the assailant. She also testified Washington appeared
heavier than the person who had attacked her 11 years earlier. Following Betty’s
testimony, the People sought to introduce a booking photograph taken of Washington in
October 2000, six months before Betty was sexually assaulted. The photograph showed
Washington with a crystal or diamond stud earring in his left ear. It also contained
information at the bottom of the photograph listing Washington’s height as five feet nine
inches and his weight. The offense for which he was arrested had been redacted.
Washington objected on several grounds, including that the photograph was more
                                                                                          11
prejudicial than probative and should be excluded under Evidence Code section 352.
During an Evidence Code section 402 hearing, the court overruled Washington’s
section 352 objection, stating, “I understand [the objection]. But in terms of any
prejudicial value, the fact that this is identified as a booking photo, I think it’s going to be
outweighed by the probative nature of the photograph.” Later in the section 402


11     Washington also argued the information contained in the photograph was hearsay
and violated his right to confrontation. The People made an offer of proof the
information at the bottom of the photograph was recorded at the time of booking by the
booking officer and qualified as an official record. The court ruled the information in the
photograph was hearsay—it was being offered for the truth of the matter asserted—but
was admissible as an official record. (Evid. Code, § 1280.) The court also overruled
Washington’s confrontation clause objection.

                                              18
proceeding, the court offered to sanitize the evidence by omitting any reference to it as a
booking photograph: “I’m going to allow the photograph. They can identify it as a
booking photograph. If you don’t want it identified as a booking photograph, then we’ll
just indicate it’s a photograph taken on October 25, 2000.” Defense counsel rejected the
offer, telling the court, “I’ve been taught I just have to object [to admissibility] and let the
court make its own ruling. I can’t agree to anything or waive the objection under
confrontation.”
       Washington contends the photograph, coupled with Detective Cedeno’s testimony
authenticating it as a booking record, effectively informed the jury he had been arrested
for a prior, albeit unidentified, crime and thus was highly prejudicial and should have
been excluded under Evidence Code section 352. The court carefully considered his
objection but found the photograph highly probative: The photograph reflected
Washington’s altered physical appearance in the 11 years since the attack; and it tended
to support Betty’s description of him at the time of the attack, as well as to explain her
difficulty in identifying him more definitely at the time of trial. While there may have
                                                         12
been alternative ways to further sanitize the evidence, the trial court’s ruling that, on
balance, the probative value of the evidence was not substantially outweighed by its
prejudicial effect was well within its discretion.




12      Washington’s trial counsel, apparently under the mistaken belief he would forfeit
his objections if he acceded to the court’s suggestion for sanitizing the evidence, refused
the court’s offer. A party confronted with an adverse ruling on admissibility does not
forfeit his or her stated objections by attempting to mitigate the damage that would result
from the adverse evidentiary ruling. (People v. Calio (1986) 42 Cal.3d 639, 643 [“‘[a]n
attorney who submits to the authority of an erroneous, adverse ruling after making
appropriate objections or motions, does not waive the error in the ruling by proceeding in
accordance therewith and endeavoring to make the best of a bad situation’”] see State
Compensation Ins. Fund v. Superior Court (2010) 184 Cal.App.4th 1124, 1129 [“the law
is clear that ‘[p]arties do not waive error by “acquiescence” when they object to trial
court error and then take “defensive” action to lessen the impact’”].)

                                              19
              c. The trial court’s exclusion of cumulative third party culpability evidence
       During trial the jury heard evidence that, when first presented with a photographic
array of six pictures that did not include Washington’s, Betty circled the photograph of
Jeremiah Woods and wrote below it that he “looks the most like I remembered, that of
the person who attacked me.” Asked to explain what she meant, Betty testified Woods
had the “most characteristics” of her rapist, more than any other of the photographs
presented to her in that array. Evidence was also presented that Woods’s DNA was
tested and he was excluded as a suspect because his DNA did not match the DNA from
the sperm taken from Betty’s vagina the day of the rape.
       After the People rested, defense counsel told the trial court he wanted to call
Benita Sanders as a witness. Asked for an offer of proof, defense counsel explained
Sanders, a neighbor of Betty, had viewed the same photographic array as Betty in 2001
and, like Betty, had circled Woods as the person who “look[ed] like” the man she had
seen running from the side of her house the day Betty was attacked. Sanders told police,
however, that Woods had less hair than the man she saw. The People objected under
Evidence Code section 352; and the court sustained the objection and excluded the
evidence, stating, “I think the probative value is not sufficient to outweigh the prejudicial
value and the confusion of issues in light of the evidence that was presented.”
       A criminal defendant has the right to present evidence of third party culpability if
the evidence is capable of raising a reasonable doubt about the defendant’s guilt. (People
v. Brady (2010) 50 Cal.4th 547, 558; People v. Avila (2006) 38 Cal.4th 491, 577-578.)
To be relevant, such evidence must link the third person “either directly or
circumstantially to the actual perpetration of the crime. In assessing an offer of proof
relating to such evidence, the court must decide whether the evidence could raise a
reasonable doubt as to defendant’s guilt” and, if so, whether it should nonetheless be
excluded as unduly prejudicial or confusing under Evidence Code section 352. (People
v. McWhorter (2009) 47 Cal.4th 318, 367-368; Brady, at p. 558.)
       The trial court did not abuse its discretion in excluding the proffered testimony
under Evidence Code section 352. The probative value of Sanders’s proposed testimony

                                             20
was marginal. Sanders’s purported identification of Woods in the photographic array,
like Betty’s, was less than definitive. The jury also heard testimony, without objection,
that Woods had been excluded as a suspect based on DNA testing. There was no error;
and even if there were, on this evidentiary record is it is not reasonably probable
Washington would have received a more favorable verdict had Sanders’s testimony been
admitted. (See People v. Page (2008) 44 Cal.4th 1, 42 [even if the court abused its
discretion, reversal is not warranted unless “‘it is reasonably probable that a result more
                                                                                      13
favorable to [defendant] would have been reached in the absence of the error’”].)
       4. Washington Cannot Be Convicted for Both Rape and Sexual Penetration by an
          Unknown Object Based on a Single Act of Intercourse/Penetration
       Insisting a single penetration formed the basis for both the charge of rape (count 8)
and sexual penetration by a foreign or unknown object (count 9), Washington contends
he cannot be convicted of both offenses or, at minimum, cannot be punished for both
under section 654. Although it is generally permissible to convict a defendant of multiple
charges arising from a single act or course of conduct (see People v. Ortega (1998)
19 Cal.4th 686, 692), under the circumstances presented here the rape and sexual
penetration with an unknown object charges should have been presented to the jury in the
alternative.
       Section 289, subdivision (a), makes it a felony to commit an act of sexual
penetration by means of force or fear; section 289, subdivision (k)(1), defines “sexual
penetration” as “the act of causing the penetration, however slight, of the genital or anal

13       Washington’s contention the court’s ruling deprived him of his constitutional right
to present a defense fails. (See People v. Prince (2007) 40 Cal.4th 1179, 1243 [“‘[W]e
. . . reject defendant’s various claims that the trial court’s exclusion of the proffered [third
party culpability] evidence [under Evid. Code, §§ 350, 352] violated his federal
constitutional rights to present a defense . . . . There was no error under state law, and we
have long observed that “[a]s a general matter, the ordinary rules of evidence do not
impermissibly infringe on the accused’s right to present a defense”’”]; People v. Hall
(1986) 41 Cal.3d 826, 834 [same]; see also Holmes v. South Carolina (2006) 547 U.S.
319, 327 [126 S.Ct. 1727, 164 L.Ed.2d 503] [the federal Constitution permits judges “‘to
exclude evidence that is “repetitive . . . , only marginally relevant” or poses an undue risk
of “harassment, prejudice, [or] confusion of the issues”’”].)

                                              21
opening of any person or causing another person to so penetrate the defendant’s or
another person’s genital or anal opening for the purpose of sexual arousal, gratification,
or abuse, by any foreign object . . . . or by any unknown object”; section 289, subdivision
(k)(3), defines “unknown object” as including “any foreign object, substance, instrument,
or device, or any part of the body, including a penis, when it is not known whether
penetration was by a penis or by a foreign object, substance, instrument, or device, or by
any other part of the body.” The jury was instructed with CALCRIM No. 1045 that
penetration by an unknown object occurs “if it is not known what object penetrated the
opening.”
       As discussed, Betty testified she felt something insider her vagina for
approximately 90 seconds but did not know if it was her assailant’s penis or finger.
Because the jury found Betty had been raped, it necessarily agreed Washington had
accomplished this penetration with his penis—a conclusion firmly grounded in the
evidence, including the presence of Washington’s sperm on the outside of her vagina.
(See §§ 261, subd. (a) [“[r]ape is an act of sexual intercourse accomplished . . . [¶] . . . [¶]
(2) . . . against a person’s will by means of force, violence, duress, menace or fear of
immediate and unlawful bodily injury on the person of another”]; 263 [“[a]ny sexual
                                                                                14
penetration, however slight is sufficient to complete the crime [of rape]”].)        A finding
Betty was penetrated with a known object (Washington’s penis), however, precludes the
requisite finding under section 289, subdivision (k)(3), that the object be unknown.
       The Attorney General contends Washington was properly convicted of two
separate offenses based on two separate acts notwithstanding Betty’s testimony at trial,
which identified only a act of single penetration, because the forensic nurse who had
examined Betty soon after the attack testified Betty “reported to me that she definitely
was penetrated with a finger, but she was not sure about vaginal-penile penetration.” The

14
        The jury was instructed, pursuant to CALCRIM No. 1000, to prove Washington
was guilty of rape, the People must prove, in part, “The defendant had sexual intercourse
with a woman” and was told, “Sexual intercourse means any penetration, no matter how
slight, of the vagina or genitalia by the penis.”

                                              22
Attorney General argues this testimony constitutes substantial evidence supporting a jury
finding that Betty had been both raped and sexually penetrated with a foreign object.
       Immediately before the quoted testimony, however, the nurse practitioner had said
Betty “described what she thought was penetration of her vagina, but was not sure what
the object was”—plainly indicating only a single act of penetration, as Betty testified.
Moreover, the prosecutor’s theory at trial was that Betty had been subjected to a single
act of penetration, not two. In his opening statement the prosecutor said, “Betty K. will
tell you the defendant then inserted something in her vagina, she doesn’t know what.” In
closing argument, with respect to the rape count, the prosecutor argued the evidence
established that Washington had sexual intercourse with Betty: “We know that took
place. Betty K. came in and told us something was placed in her vagina. She thought it
was either a finger or a penis. But we know it was the penis because they found sperm
just outside of her vagina.” Then, with respect to the sexual penetration count, the
prosecutor argued, “We know [penetration has] been shown beyond a reasonable doubt
because Betty K. tells us something was put insider her vagina. The penetration was
accomplished by using an unknown object; finger, penis, or any other object. It doesn’t
matter what it is. It could have been a finger. It could have been a penis. It doesn’t
matter. But we know at some point it’s a penis . . . . They find sperm outsider her
vagina. So we know it’s not the finger. We know it’s not his finger. There’s no way his
                                            15
finger left sperm outside of her vagina.”        Finally, in their sentencing memorandum the
People recommended sentence on either count 8 or count 9 be stayed pursuant to section
654—a recommendation the trial court rejected without explanation.


15
       In her respondent’s brief the Attorney General paraphrases this portion of the
closing argument in the following manner: “The prosecutor told the jury that the record
established that appellant had penetrated Betty’s vagina with his penis, but for the
purposes of count IX, ‘it could have been a finger,’ in addition to the penile-vaginal
penetration required for count VIII.” That was not the argument the prosecutor made:
As quoted in text, when discussing count 9 the prosecutor expressly told the jury the
evidence demonstrated it was Washington’s penis, “not his finger,” that had penetrated
Betty.

                                                  23
       In sum, because the jury found on substantial evidence that Betty had been raped,
it could not find the same penetration was by an unknown object. Washington’s
conviction of sexual penetration with an unknown object (count 9) must be stricken.
       5. The Trial Court Properly Addressed Any Discovery Violations
              a. Relevant proceedings
       Dr. Stephen Scholtz, the deputy medical examiner who performed Fouquet’s
autopsy, opined at trial that Fouquet had died of mechanical asphyxia, impairment of
respiration by mechanical means such as the covering of air passages. He testified
Fouquet had handprints on her face and fractured ribs consistent with someone placing a
knee or foot on top of her rib cage. He also testified during cross-examination that
Fouquet had suffered “chest trauma, probable asphyxia.”
       After defense counsel had completed his cross-examination of Dr. Scholtz, the
People requested, and the court permitted, Dr. Lakshmanan Sathyavagiswaran, Chief
Medical Examiner and Coroner of Los Angeles County and Dr. Scholtz’s supervisor, to
testify out of order to accommodate Dr. Sathyavagiswaran’s travel schedule.
Dr. Sathyavagiswaran testified he “concur[red] with Dr. Scholtz’s opinion of mechanical
asphyxia as the cause of death because the chest compression is a fact.” Defense counsel
objected, insisting Dr. Sathyavagiswaran’s opinion was “new and undisclosed evidence”;
Dr. Scholtz had testified to a “completely different” cause of death; and
Dr. Sathyavagiswaran’s opinion was the product of a courthouse conversation between
the prosecutor and the physician that had occurred just prior to his testimony and had not
been disclosed to the defense in violation of section 1054.3’s discovery requirements.
The court expressed some disagreement with defense counsel’s characterization of Dr.
Sathyavagiswaran’s opinion as new and different from Dr. Scholtz’s testimony, but
ordered the prosecutor to produce any notes or reduce the notes to a summary of the
courthouse conversation and provide it to the defense. It also told defense counsel it
would permit him to cross-examine Dr. Sathyavagiswaran and even recall him if
necessary after counsel reviewed the report of the conversation. Dr. Sathyavagiswaran
testified Fouquet’s death certificate, prepared by Dr. Scholtz, provided that the cause of

                                            24
death was mechanical asphyxia caused by chest compression and probable facial
compression, and he agreed with Dr. Scholtz’s conclusions.
       After Dr. Scholtz’s examination resumed, Dr. Scholtz indicated he had brought
with him additional photographs of Fouquet’s body taken during the autopsy. (Several
other autopsy photographs had been produced in discovery and discussed earlier in Dr.
Scholtz’s testimony.) Washington objected to the introduction of this new evidence. The
People represented they had just been given the photographs that morning by Dr. Scholtz
and immediately turned them over to the defense. Outside the presence of the jury, the
court reviewed each photograph to determine its admissibility. The court excluded some
as duplicative and permitted others because they highlighted the handprint on Fouquet’s
face a little more clearly than the other photographs. The court denied Washington’s
request to exclude at least one of the photographs as a discovery sanction for their late
production. The court explained, “I’m not going to exclude it. First of all, I don’t think
it’s appropriate, because I don’t think that photo is really marginally different from
photos that were in fact turned over, or significantly different. I think it is really just
another photo of things that are depicted in items that were turned over. And that’s why,
while it may have been a technical violation of 1054.1, I don’t think it warrants a
sanction.”
              b. The trial court’s actions cured any prejudice caused by a violation of
                 the criminal discovery statutes
       Section 1054.1 requires the prosecution to disclose to the defense certain
categories of evidence in its possession, including “any ‘[r]elevant written or recorded
statements of witnesses or reports of the statements of witnesses whom the prosecutor
intends to call at the trial . . . .” (See People v. Verdugo (2010) 50 Cal.4th 263, 279-280;
In re Littlefield (1993) 5 Cal.4th 122, 135.) Absent good cause, “such evidence must be
disclosed at least 30 days before trial, or immediately if discovered or obtained within 30
days of trial.” (Verdugo, at p. 280; see § 1054.7 [“[i]f the material and information
becomes known to, or comes into the possession of, a party within 30 days of trial,
disclosure shall be made immediately unless good cause is shown”].) If any party fails to


                                               25
comply with the statutory disclosure requirements, the trial court “may make any order
necessary” to enforce those provisions, “including, but not limited to, [ordering]
immediate disclosure, [initiating] contempt proceedings, delaying or prohibiting the
testimony of a witness or the presentation of real evidence, continu[ing] . . . the matter, or
any other lawful order. Further, the court may advise the jury of any failure or refusal to
disclose and of any untimely disclosure.” (§ 1054.5; accord, Verdugo, at p. 280.) The
trial court’s determination whether a discovery violation occurred is reviewed for abuse
of discretion. (People v. Ayala, supra, 23 Cal.4th at p. 299.)
       Citing Roland v. Superior Court (2004) 124 Cal.App.4th 154, 160, Washington
contends the prosecution team violated the reciprocal discovery statutes when they
interviewed Dr. Sathyavagiswaran during the lunchtime recess without disclosing the
content of that interview to the defense. (See ibid. [§ 1054.3’s requirement that defense
counsel disclose to prosecutor all relevant statements made by persons other than the
defendant who defense counsel intends to call as a witness includes unrecorded oral
statements made by a third party investigator]; Levenson, Cal. Criminal Procedure (The
Rutter Group 2014) § 16:3 [Roland’s recognition of a duty by defense under § 1054.3 to
provide the content of any unrecorded oral statements made by a witness likely signals “a
reciprocal duty by the prosecution” to provide same under § 1054.1, subd. (f)].) The
People insist there was no violation of the discovery statutes, and certainly no prejudice,
because the lunchtime conversation did not yield new evidence not otherwise disclosed.
We need not wade into the parties’ debate on the character of the information purportedly
obtained during that conversation. The trial court, in an abundance of caution, cured any
prejudice when, in accordance with its discretion under section 1054.5, it ordered the
People to produce a report and any notes from the conversation with
Dr. Sathyavagiswaran and permitted the defense to fully examine him on it at trial.
Washington’s appellate briefs fall woefully short of demonstrating how that order was
insufficient to cure the harm he identifies. (See People v. Wimberly (1992) 5 Cal.App.4th
773, 792-793 [remedy for a discovery violation should be no broader than necessary to
guarantee a fair trial].)

                                             26
       Washington’s related contention the additional autopsy photographs should have
been excluded as a sanction for violating the discovery statutes similarly fails. The trial
court addressed Washington’s challenge to the new autopsy photographs by questioning
Dr. Scholtz and the prosecutor and reviewing each photograph outside the presence of the
jury before determining they were only marginally different from the ones otherwise
produced and admitted into evidence at trial. Washington has failed to demonstrate the
court abused its discretion in refusing to exclude any of the additional photographs as a
discovery sanction, much less show the admission of this largely cumulative evidence,
even if error, was prejudicial or otherwise deprived him of a fair trial.
       Finally, Washington contends the court should have, at minimum, given a delayed
discovery instruction regarding both purported discovery violations. (See § 1054.5
[vesting court with discretion to inform jury of any untimely disclosure of evidence];
CALCRIM No. 306 [advising jury it may consider the effect, if any, of party’s late
disclosure of evidence].) As explained, even if there were a technical violation of the
discovery statutes, the trial court amply and timely cured any prejudice. Under those
circumstances, the court’s determination an instruction was not warranted and would only
serve to confuse the jury was well within its discretion. (See People v. Curl (2009)
46 Cal.4th 339, 357 [court has broad discretion to determine whether late-discovery
instruction is warranted]; People v. Ayala, supra, 23 Cal.4th at p. 299 [same].)
       6. The Trial Court Did Not Commit Instructional Error
              a. Jury instructions containing caption headings
       Washington contends the court committed prejudicial error when it refused his
request to delete CALCRIM instruction titles from the written instructions given to the
jury. In particular, he argues CALCRIM Nos. 3178 and 3180, which included captions
                                                     16
indicating they pertained to “sentencing factors,”        improperly invited the jury to


16       CALCRIM No. 3178, captioned, “Sex Offenses: Sentencing Factors—Burglary
with Intent To Commit Sex Offense (Pen. Code, § 667.61(d)(4)” instructed the jury that,
if it found Washington guilty of the sexual assault crimes charged in counts 8 and 9, it
must then decide “whether the People have proved the additional allegation that the

                                             27
consider punishment by suggesting a true finding on the question would increase his
sentence. (People v. Jackson (1986) 177 Cal.App.3d 708, 714 [“jury is not permitted to
consider punishment or penalty in determining guilt or innocence”].) We agree it is
better practice not to provide at least certain caption headings to the jury: The
CALCRIM captions are not part of instructions and are properly removed before
presentation of the written instructions to the jury (see People v. Torres (2011)
198 Cal.App.4th 1131, 1147, fn. 11). Nevertheless, the suggestion the captions
Washington has identified invited improper consideration of punishment is far too
speculative to be a ground for reversal. (See Estelle v. McGuire (1991) 502 U.S. 62, 72
[112 S.Ct. 475, 116 L.Ed.2d 385] [in reviewing claim court’s instructions were incorrect
or misleading, a reviewing court inquires whether there is a reasonable likelihood the jury
misunderstood the instruction or misapplied the law]; People v. Cross (2008) 45 Cal.4th
58, 67-68 [same].) Any ambiguity in this regard was clarified when the court instructed
the jury with CALCRIM No. 706, captioned, “Special Circumstances: Jury May Not
Consider Punishment,” specifically informing the jury it “may not consider or discuss
penalty or punishment in any way when deciding whether a special circumstance, or any
other charge, has been proved.” The trial court also instructed the jury with CALCRIM
No. 3550, which similarly admonished, “You must reach your verdict without any
consideration of punishment.” We presume the jury followed these very clear and
specific instructions. (People v. Yeoman (2003) 31 Cal.4th 93, 139; People v. Holt




defendant committed the crime during the commission of burglary, with the intent to
commit Forcible Rape and Sexual Penetration by Force. You must decide whether the
People have proved this allegation for each crime and return a separate finding for each
crime. . . .”
       CALCRIM No. 3180, captioned, “Sex Offenses: Sentencing Factors—Burglary
(Pen. Code, § 667.61(e)(2))” similarly instructed, if it found Washington guilty of the
crimes charged in count 8 or 9, the jury must then decide “whether, for each crime, the
People have proved the additional allegation that the defendant committed the crime
during the commission of a burglary. . . .”

                                             28
(1997) 15 Cal.4th 619, 662 [“[j]urors are presumed to understand and follow the court’s
instructions”].)
              b. Lesser included offense instructions
       The trial court must instruct on general principles of law that are closely and
openly connected to the facts and that are necessary for the jury’s understanding of the
case. (People v. Carter (2003) 30 Cal.4th 1166, 1219.) That obligation includes giving
instructions on lesser included offenses, whether or not they are requested, when there is
substantial evidence from which a reasonable juror could find the lesser, but not the
greater offense, was committed. (People v. Eid (July 10, 2014, S211702) 59 Cal.4th 650;
People v. Taylor (2010) 48 Cal.4th 574, 624; People v. Breverman (1998) 19 Cal.4th 142,
                                                                 17
162; People v. Millbrook (2014) 222 Cal.App.4th 1122, 1138.)
       In deciding whether there is substantial evidence to support a lesser included
offense instruction, the “court determines only its bare legal sufficiency, not its weight.”
(People v. Moye (2008) 47 Cal.4th 537, 556.) On appeal we review independently
whether a lesser included offense instruction was warranted. (People v. Avila (2009)
46 Cal.4th 680, 705.)
                     i. The trial court’s refusal to give a second degree murder
                         instruction could not have been prejudicial
       Washington contends the court erred in denying his request to instruct on second
degree murder as a lesser included offense of the murder charged in count 6 (murder of
Fouquet). Although the People proceeded solely on a first degree felony murder theory,
he asserts the information charged him with murder without specifying the theory; second


17      The reason for requiring a lesser included offense instruction when the evidence
warrants it is well known: “A jury instructed on only the charged offense might be
tempted to convict the defendant ‘“of a greater offense than that established by the
evidence”’ rather than acquit the defendant altogether, or it may be forced to acquit the
defendant because the charged crime is not proven even though the “evidence is
sufficient to establish a lesser included offense.”’ [Citation.] Instructing the jury on
lesser included offenses avoids presenting the jury with ‘an “unwarranted all-or-nothing
choice.”’” (People v. Eid, supra, 59 Cal.4th at p. 657; accord, People v. Breverman,
supra, 19 Cal.4th at p. 155.)

                                             29
degree murder is a lesser included offense of first degree murder; and there was
substantial evidence from which a jury could have found Washington engaged in conduct
(stepping on Fouquet blocking her air passages) that, although not intended to kill,
evidenced a reckless disregard for human life, a finding consistent with second degree
(malice) murder. (See People v. Taylor, supra, 48 Cal.4th at pp. 623-624 [second degree
murder is the unlawful killing of a human being with malice; malice will be implied
“‘when the killing results from an intentional act, the natural consequences of which are
dangerous to life, which act was deliberately performed by a person who knows that his
conduct endangers the life of another and who acts with conscious disregard for life’”];
People v. Knoller (2007) 41 Cal.4th 139, 152 [same].)
       The Supreme Court “ha[s] yet to decide whether second degree murder is a lesser
included offense of first degree murder where, as here, the prosecution proceeds only on
a theory of first degree felony murder,” a theory of murder that does not require malice.
(People v. Taylor, supra, 48 Cal.4th at p. 623; People v. Romero (2008) 44 Cal.4th 386,
402 [same].) We need not address that question here or consider whether there was
evidence from which a reasonable juror could have concluded Washington did not intend
to kill Fouquet. The jury convicted Washington of first degree residential burglary and
found true the special circumstance that the murder of Fouquet was committed during the
course of a burglary. When, as here, “‘the elements of felony murder and the special
circumstance[s] coincide, the true finding[s] as to the . . . special circumstance[s]
establish[] . . . that the jury would have convicted defendant of first degree murder under
a felony-murder theory, at a minimum, regardless of whether more extensive instructions
were given on second degree murder.’” (People v. Castaneda (2011) 51 Cal.4th 1292,
1328.) Under these circumstances, “any error in not instructing the jury concerning
second degree murder was harmless beyond a reasonable doubt.” (Ibid.; accord, People
                                                                  18
v. Campbell (July 1, 2014, E055528) 227 Cal.App.4th 746, __.)

18     Washington’s contention he was also entitled to an instruction on second degree
felony murder is without merit and evidences a misapprehension of the felony murder
doctrine. “First degree felony murder is a killing during the course of a felony specified

                                             30
                     ii. The evidence did not warrant a false imprisonment instruction as
                         a lesser included offense of kidnapping for robbery
       Kidnapping to commit robbery (§ 209, subd. (b)(1)) requires a finding the
defendant intended to commit robbery and, consistent with that intent, took, held or
detained another person by force or fear, moved the victim a substantial distance beyond
that merely incidental to the commission of a robbery, and by that movement increased
the risk of harm beyond that necessarily present in a robbery. (People v. Martinez (1999)
20 Cal.4th 225, 232; People v. Robertson (2012) 208 Cal.App.4th 965, 984-985.) The
two elements of the test are related: “[W]hether the victim’s forced movement was
merely incidental to the [underlying offense] is necessarily connected to whether it
substantially increased the risk to the victim.” (People v. Dominguez (2006) 39 Cal.4th
1141, 1152.) “[E]ach case must be considered in the context of the totality of its
circumstances.” (Ibid.)
       False imprisonment, in contrast, requires only a finding that a person was
unlawfully confined or restrained. Accordingly, false imprisonment is a lesser included
offense of kidnapping to commit robbery. (See People v. Eid, supra, 59 Cal.4th 650, __;
People v. Shadden (2001) 93 Cal.App.4th 164, 171.) A lesser included offense
instruction on false imprisonment is not required when the evidence establishes that the
defendant was either guilty of the greater aggravated kidnapping offense or was not
guilty at all. (People v. Kelly (1990) 51 Cal.3d 931, 959.)
       Washington asserts, based on the evidence presented about the beating and
robbery of Segundo, a properly instructed jury could have found the People failed to
prove the asportation element of kidnapping for robbery—that is, entertained a

in section 189, such as rape, burglary, or robbery. Second degree felony murder is ‘an
unlawful killing in the course of the commission of a felony that is inherently dangerous
to human life but is not included among the felonies enumerated in section 189. . . .’”
(People v. Chun (2009) 45 Cal.4th 1172, 1182.) Washington contends he was entitled to
an instruction on second degree felony murder because the jury could have found he
intended only “to injure or disable Mrs. Fouquet so he could burgle her home.” Even
under Washington’s proposed theory, the killing during the course of a burglary would
constitute first degree felony murder under section 189, not second degree felony murder.

                                            31
reasonable doubt whether the movement of Segundo was substantial and not merely
incidental to the robbery—and thus convicted him of the lesser offense of false
imprisonment. In a different situation the movement of a victim from a front room to a
bedroom and ultimately to a locked closet might justify a lesser included instruction on
false imprisonment. (See, e.g., People v. Mutch (1971) 4 Cal.3d 389, 397-399
[movement of victims 30 to 40 feet through different rooms inside a business incidental
to robbery]; People v. Washington (2005) 127 Cal.App.4th 290, 299 [movement of two
bank tellers several feet within the bank was incidental to robbery]; People v. Diaz (2000)
78 Cal.App.4th 243, 247 [“incidental movements are brief and insubstantial and
frequently consist of movement around the premises where the incident began”].) Here,
however, the evidence was undisputed that, at the time Segundo was confined in the
closet and unable to obtain medical attention for his significant head wounds, the robbery
was ongoing, as Washington had not yet reached a point of temporary safety. (See
People v. Williams (2013) 57 Cal.4th 776, 787 [“[b]ecause larceny is a continuing
offense, a defendant who uses force or fear in an attempt to escape with property taken by
larceny has committed robbery”]; People v. Estes (1983) 147 Cal.App.3d 23, 27-28.)
There can be no question Segundo’s confinement, not necessary to the robbery, increased
the risk of harm far beyond that inherent in the robbery itself. Simply put, if the jury
believed Washington was Segundo’s assailant, there was no evidentiary basis on which it
could have found him guilty of the lesser but not the greater offense. (See People v.
Dominguez, supra, 39 Cal.4th at p. 1153 [“forcibly moving a robbery victim 40 feet
within a parking lot into a car [citation] might, under the circumstances, substantially
increase the risk of harm to the victim and thus satisfy the asportation requirement” for
aggravated kidnapping].) Accordingly, no false imprisonment instruction was warranted.
(See People v. Kelly, supra, 51 Cal.3d at p. 959 [trial court did not err in refusing
defendant’s request to instruct on felony false imprisonment as lesser included offense of




                                             32
kidnapping when evidence did not support it]; People v. Ordonez (1991) 226 Cal.App.3d
                      19
1207, 1233 [same].)
                      iii. The court did not err in refusing to instruct on lesser included
                           offenses of attempted extortion or false imprisonment in
                           connection with the charge of kidnapping for extortion
       The crime of kidnapping to commit extortion requires a finding the defendant
intentionally held or detained or confined a person to commit extortion. (§ 209,
subd. (a).) Extortion is defined as obtaining the property of another with the other’s
consent when that consent has been induced by force or fear. (§ 518; see People v.
Ibrahim (1993) 19 Cal.App.4th 1692, 1696; CALCRIM No. 1202.) Unlike other
aggravated kidnapping offenses, asportation is not an element of kidnapping for
extortion. (People v. Mayfield (1997) 14 Cal.4th 668, 771, fn. 10; People v. Rayford
(1994) 9 Cal.4th 1, 14.) False imprisonment and attempted extortion are lesser included
offenses of kidnapping to commit extortion. (People v. Eid, supra, 59 Cal.4th 650, __.)
       Washington argues the jury should have been instructed on the lesser included
offense of attempted extortion because the jury could have reasonably found he had
failed to obtain the property that was the target of the crime. The ATM card, he asserts,
was worthless without the correct PIN; and the money from the account was never taken.
Washington acknowledges that at least one court has found a PIN to be property for
purposes of extortion (see People v. Kozlowski (2002) 96 Cal.App.4th 853, 867 [PIN
number for debit card is “property” capable of being extorted]), but emphasizes he did
not actually obtain Segundo’s PIN. Accordingly, he argues, at most, he was guilty of an
attempt crime.
       Washington’s argument is misplaced. While it is correct to commit the crime of
extortion, rather than an attempt to extort, the defendant must obtain the targeted property
(here either the PIN or the money) (see People v. Goodman (1958) 159 Cal.App.2d 54,


19    In addition to his arguments on instructional error, Washington also argues the
evidence of asportation was insufficient to support the verdict. As explained, there was
ample evidence to support the jury’s verdict.

                                              33
61; People v. Franquelin (1952) 109 Cal.App.2d 777, 784; see also Scheidler v. Nat. Org.
for Women (2003) 537 U.S. 393, 404 [123 S.Ct. 1057, 154 L.Ed.2d 991 [interpreting
New York extortion statute with identical elements]), the separate offense of kidnapping
for ransom/extortion does not require the extortion be completed: ““There is a similarity
between the completed crime of kidnapping for ransom and the attempt to commit the
crime under section 1159, for in both situations the conduct does not need to be
successful in bringing about the desired results. An attempt to commit a crime consists of
(1) the specific intent to commit the crime, and (2) a direct but ineffectual act done
toward its commission. [Citations.] The crime of kidnapping for ransom is complete
when the kidnapping is done for the specific purpose of obtaining ransom even though
the purpose is not accomplished. To define kidnapping for ransom otherwise would
overlook the underlying gravity of the offense with an unwarranted emphasis on the
success of the criminal activity.” (People v. Anderson (1979) 97 Cal.App.3d 419, 425;
see § 209, subd. (a); CALCRIM No. 1202 [obtaining property that is the target of
kidnapping for extortion not an element of offense of kidnapping to extort].)
       Washington also contends the court erred in failing to give a false imprisonment
instruction as a lesser included offense of this aggravated kidnapping charge, but offers
no argument as to how the jury reasonably could have found him guilty of the lesser but
not the greater offense. As explained, his misplaced emphasis on the lack of asportation,
which is not required for this offense, and the failure to obtain the correct PIN, are not a
basis to find him guilty of the proposed lesser included offenses. No false imprisonment
instruction was required.
       7. The Admission of DNA Hearsay Evidence Did Not Violate Washington’s Sixth
          Amendment Right of Confrontation
              a. Relevant proceedings
       Jody Hynds, a supervising forensic analyst employed by Orchid Cellmark, a
private DNA testing laboratory in Texas, testified her company received for DNA
analysis fingernail clippings taken from Fouquet’s right hand, an oral swab of
Washington’s cheek containing his DNA and a blood card cutting from Fouquet


                                             34
containing Fouquet’s blood sample. Hynds articulated the laboratory’s procedures for
handling evidence and, in particular, the methods used to extract DNA from Fouquet’s
fingernail clippings. She explained the DNA obtained from the clippings contained more
than one contributor of DNA with Fouquet being the major contributor. Using a
computer program issued by the FBI called POPSTATS and a “probability-of-inclusion
formula” that Hynds described as standard in the scientific community when samples
contain mixtures of DNA, Hynds testified that Washington “could not be excluded” as a
potential minor contributor of DNA, as his genetic typing was found at eight of
13 locations required for a DNA match. She explained, however, the amount recovered
from underneath the nails was insufficient to conclusively establish the presence of
Washington’s DNA. The possibility of randomly selecting an individual in the Black
population with the same genetic typing as the minor contributor to the DNA profile was
one in 18,270.
       On cross-examination Hynds acknowledged she did not handle the evidence or
conduct the tests nor was she present when the tests were conducted. Rather, the
technicians she supervised performed the tests; she reviewed the raw data from the tests
along with the chain of custody and the controls used. Hynds then drew her own
comparisons between the reference samples and the evidence samples and arrived at her
own conclusions and statistical evaluations, which she prepared in a written report. (The
report was introduced into evidence over Washington’s confrontation clause objection.)
The two-page report listed the samples tested, identified the tests performed and
contained two charts comparing the statistical analysis of the DNA found with four
population databases (Black, Caucasian, Southwest Hispanic and Southeast Hispanic.)
                                                                                  20
No raw data were included in the report introduced into evidence by the People.
              b. Governing law
       The confrontation clause provides that “[i]n all criminal prosecutions, the accused
shall enjoy the right . . . to be confronted with the witnesses against him.” (U.S. Const.,

20     The raw data were used by the defense as part of its cross-examination of Hynds.

                                             35
6th Amend.) The purpose of that clause is to “ensure the reliability of the evidence
against a criminal defendant by subjecting it to rigorous testing in the context of an
adversary proceeding before the trier of fact.” (Maryland v. Craig (1990) 497 U.S. 836,
845 [110 S.Ct. 3157, 111 L.Ed.2d 666].) “A hearsay statement that otherwise satisfies a
statutory exception may be admitted against a criminal defendant without violating the
confrontation clause as long as the statement is not ‘testimonial.’” (People v. Lopez
(2012) 55 Cal.4th 569, 590 (Lopez), citing Crawford v. Washington (2004) 541 U.S. 36
                                                  21
[124 S.Ct. 1354, 158 L.Ed.2d 177] (Crawford).)
       Since its decision in Crawford the Supreme Court has struggled to identify a
coherent test for courts to apply in identifying those statements that are testimonial in
nature. (See Melendez-Diaz v. Massachusetts (2009) 557 U.S. 305, 310, 324 [129 S.Ct.
2527, 174 L.Ed.2d 314] [evidence certificates prepared by laboratory analyst attesting
substance was cocaine were testimonial; the statements “prepared specifically for use at
petitioner’s trial—were testimony against petitioner, and the analysts were subject to
confrontation under the Sixth Amendment”]; Bullcoming v. New Mexico (2011) 564 U.S.
__ [131 S.Ct. 2705, 180 L.Ed.2d 610] [certified blood alcohol report prepared by
nontestifying laboratory analyst was testimonial]; but see Williams v. Illinois (2012) 567
U.S. __ [132 S.Ct. 2221, 2240, 183 L.Ed.2d 89] (plur. opn. of Alito, J.) (Williams)
[uncertified results of DNA analysis performed by nontestifying laboratory analysts were
nontestimonial; the primary purpose was to capture an unidentified and dangerous rapist
who was still at large, not to convict defendant].)



21      In Crawford the United States Supreme Court concluded that nontestimonial
hearsay remains subject to state hearsay law and may be excluded from confrontation
clause scrutiny entirely. (Crawford, supra, 541 U.S. at p. 68.) But where testimonial
hearsay is involved, “the Sixth Amendment demands what the common law required:
unavailability and a prior opportunity for cross-examination.” (Ibid.) While the Supreme
Court declined to provide a comprehensive definition of “‘testimonial’” (ibid.), the term
includes “‘statements that were made under circumstances which would lead an objective
witness reasonably to believe that the statement would be available for use at a later
trial.’” (Id. at p. 52.)

                                             36
       Wrestling with the disparate opinions of a divided United States Supreme Court on
             22
this question, the California Supreme Court has distilled two basic principles to be
derived from the Supreme Court’s most recent pronouncements: “Although the high
court has not agreed on a definition of ‘testimonial,’ a review of [its] decisions indicates
that a statement is testimonial when two critical components are present. [¶] First, to be
testimonial the out-of-court statement must have been made with some degree of
formality or solemnity. [Citations.] The degree of formality required, however, remains
a subject of dispute in the United States Supreme Court. [Citations.] [¶] Second, all
nine high court justices agree that an out-of-court statement is testimonial only if its
primary purpose pertains in some fashion to a criminal prosecution, but they do not agree
on what the statement’s primary purpose must be.” (Lopez, supra, 55 Cal.4th at pp. 581-
582; accord, People v. Dungo (2012) 55 Cal.4th 608 (Dungo); see People v. Mercado
                                 23
(2013) 216 Cal.App.4th 67, 86.)


22       The plurality opinion in Williams was made up of the four dissenters in
Bullcoming and Melendez-Diaz (Chief Justice Roberts and Justices Alito, Breyer and
Kennedy) with Justice Thomas writing a separate concurring opinion deciding the
question solely on the ground the lab report of the DNA tests lacked the solemnity of an
affidavit or deposition. (See Williams, supra, 132 S.Ct. at p. 2260 (conc. opn. of
Thomas, J.) Courts and commentators have lamented the lack of clear principles to be
derived from the United States Supreme Court on this question. (See Justice M. Chin,
et al., Forensic DNA Evidence: Science and the Law (Apr. 2014) § 11:10 [noting the
Williams decision “revealed a severely fractured Court on the issues presented”]; People
v. Barba (2013) 215 Cal.App.4th 712, 740 [“[m]aking sense out of the case law in this
area is to some extent an exercise in ‘tasseomancy’”]; see also Williams, at p. 2277 (dis.
opn. of Kagan, J. [“[w]hat comes out of four Justices’ [(the plurality)] desire to limit
Melendez-Diaz and Bullcoming in whatever way possible, combined with one Justice’s
[(Thomas’s)] one-justice view of those holdings is—to be frank—who knows what”].)
23     The same day the opinions in Lopez and Dungo were filed, the Court also decided
People v. Rutterschmidt (2012) 55 Cal.4th 650, which involved a laboratory director’s
testimony based on a report prepared by a nontestifying laboratory analyst who had
conducted several tests on the victim’s blood. The Court did not address whether the
testimony violated the confrontation clause, concluding that, even if it did, due to the
overwhelming nature of the evidence against the defendant, any error was harmless
beyond a reasonable doubt. (Id. at p. 661.)

                                             37
       Focusing on only the first of these principles, in Lopez the Court found a lab
supervisor could testify to blood alcohol results based on a report prepared by a
nontestifying analyst without violating the confrontation clause because the report lacked
the requisite formality and solemnity to be testimonial. (Lopez, supra, 55 Cal.4th at
pp. 581-583 [“[w]e need not consider the primary purpose of nontestifying analyst Peña’s
laboratory report on the concentration of alcohol in defendant’s blood because, as
explained below, the critical portions of that report were not made with the requisite
degree of formality or solemnity to be considered testimonial”].) The parts of the report
that consisted solely of machine data, the Court held, were not “statements”—“a machine
cannot be cross-examined”—and thus did not implicate the defendant’s Sixth
Amendment right to confrontation. (Id. at p. 583.) The parts of the report containing
data notes by the nontestifying analyst identifying categories of information such as
“booking number” “subject’s name” and the dates and time the samples were collected,
the court concluded, though necessarily relied on by the testifying expert in reaching his
own independent conclusions, were simply informal records for internal purposes; the
nontestifying laboratory technician did not certify or attest to the contents of the report
and thus they, too, were not testimonial. (Id. at pp. 584-585.)
       In Dungo the Court considered whether a pathologist who did not perform the
autopsy of the deceased could testify using the nontestifying pathologist’s observations
and factual descriptions of the deceased contained in the autopsy report. (Dungo, supra,
55 Cal.4th at pp. 620-621.) The court explained the objective factual observations and
measurements recorded in an autopsy report, which was itself not admitted into evidence,
as opposed to the conclusions of the cause of death, were not testimonial. More akin to
medical records, the court explained, factual observations in autopsy reports lack the
formality and solemnity of testimonial statements. (Dungo, at pp. 620-621, citing
Melendez-Diaz, supra, 557 U.S. at p. 312, fn. 2 [“medical reports created for treatment
purposes . . . would not be testimonial under our decision today”].) The Court also found
the primary purpose of an autopsy report generally is not to supply evidence for a
criminal case, even if a crime appears to have occurred and a suspect has been identified.

                                             38
(See Dungo, at p. 620 [“the scope of the coroner’s statutory duty to investigate is the
same, regardless of whether the death resulted from criminal activity”].)
       In the wake of Williams, Lopez and Dungo, several courts of appeal have rejected
confrontation clause challenges to the testimony of a forensic supervisor who, like
Hynds, relied on data resulting from tests performed by nontestifying laboratory
technicians in arriving at his or her own conclusions. In People v. Steppe (2013)
213 Cal.App.4th 1116, 1127, the laboratory supervisor testified it was her job to “‘review
. . . all the notes, data, and the report of the DNA analyst and . . . ensure that the results
are accurate and the conclusions are appropriate for th[e] items [tested]. It also includes
doing an independent analysis of the data and interpretation and arriving at results and
then comparing those results to the analyst’s results to . . . ensure that it is accurate and
the conclusions are appropriate for those items.’” (Id. at p. 1121.) Based on her review
of the raw data, the testifying forensic analyst in Steppe opined that the murder victim
was the major donor of the DNA to a bloodstain and explained the statistical probabilities
that the defendant was a minor contributor. The Steppe court found the laboratory reports
“lack[ed] the degree of formality and solemnity to be considered testimonial for purposes
of the confrontation clause.” (Id. at p. 1127.) Citing Lopez, the court found that was
enough to determine no confrontation violation occurred. No analysis of the report’s
primary purpose, the court explained, need be undertaken. (Steppe, supra, 213
Cal.App.4th at p. 1123, fn. 8.)
       Similarly, in People v. Holmes (2012) 212 Cal.App.4th 431, 436, 438, the court
held “notes, DNA profiles, tables of results, typed summary sheets, and laboratory reports
prepared by others” amounted to “unsworn, uncertified records of objective fact” and
thus were not testimonial within the meaning of the confrontation clause. It, too,
declined to conduct a primary purpose examination, finding the absence of the requisite
formality and solemnity dispositive on whether the evidence was testimonial.
       Our Division Eight colleagues in People v. Barba (2013) 215 Cal.App.4th 712
offered a more comprehensive analysis. The court found the DNA report lacking in the
requisite formality and solemnity to be considered testimonial, but, unlike Lopez, Steppe

                                               39
and Holmes, it did not end its analysis there. Rather, it focused most of its attention on
the primary purpose of DNA testing. Echoing the views expressed in Justice Alito’s
opinion in Williams, the court found the primary purpose was not to accuse or inculpate a
targeted individual but to perform tests in accordance with established protocols. (Barba,
at p. 741 [“DNA lab technicians in general perform their tasks in accordance with
accepted procedures and have no idea beforehand whether their work will exonerate or
inculpate a known suspect”]; Williams, 132 S.Ct. at p. 2244 (plur. opn. of Alito, J.)
[“when the work of a lab is divided up in such a way [that numerous technicians work on
each DNA profile,] it is likely that the sole purpose of each technician is simply to
perform his or her task in accordance with accepted procedures”].) Moreover, the Barba
court observed, “defendants who question the validity of DNA test results have an
additional safeguard available through their power to subpoena anyone who took part in
the DNA testing process.” (Barba, at pp. 742-743; see also Williams, supra, 132 S.Ct. at
pp. 2243-2244 [same].)
              c. The trial court did not err in overruling Washington’s confrontation
                 clause objection to Hynds’s testimony; and, in any event, any error was
                 harmless
       Washington contends the admission into evidence of Hynds’ testimony about tests
she did not perform violated his right to confrontation under the Sixth Amendment.
Finding the analyses in Steppe, Holmes and particularly Barba persuasive as to the
testimonial nature of DNA lab tests in light of recent opinions by the United States
Supreme Court and the California Supreme Court, we conclude Hynds could testify as to
her own opinions, based on data generated by multiple nontestifying lab technicians
tasked with conducting tests in accordance with accepted procedures, without violating
the confrontation clause.
       Nevertheless, we need not rest our decision on that ground because any error in
this regard was harmless beyond a reasonable doubt. Hynds’s testimony was hardly the
bombshell Washington describes. The DNA test from Fouquet’s fingernails was far from
conclusive, identifying Washington as a possible minor contributor of DNA (a statistical


                                             40
probability of 1 in 18,270.) Quite apart from the DNA evidence, there was ample
forensic evidence that Washington murdered Fouquet during a burglary. Washington’s
fingerprints were recovered at the Fouquets’ home and Raymond Fouquet’s jewelry was
found in Washington’s apartment. He also unsuccessfully attempted to use the Fouquets’
ATM card. We have little difficulty concluding any error in admitting portions of
Hynds’s testimony that relied on data performed by nontestifying lab technicians was
harmless beyond a reasonable doubt. (See People v. Ruttershmidt, supra, 55 Cal.4th at
p. 661.)
              d. Dr. Sathyavagiswaran’s testimony did not violate the
                 confrontation clause
       Washington also contends his Sixth Amendment rights were violated when the
court permitted Dr. Sathyavagiswaran to refer to an autopsy report prepared by
Dr. Scholtz. Dr. Scholtz prepared the report and testified at trial subject to rigorous
cross-examination. Dr. Sathyavagiswaran was asked simply whether he agreed with
Dr. Scholtz’s conclusions, a proper function of expert testimony. Dr. Sathyavagiswaran
did not refer to any conclusions made by a nontestifying witness. There was no
confrontation clause violation.
       8. Washington Has Failed To Demonstrate Cumulative Error
          Compelling Reversal
       Washington contends the errors he described, at least when considered
cumulatively, compel reversal. For the reasons we have explained, none of the errors he
alleges (except with respect to his convictions for both rape and forcible sexual
penetration), even when considered cumulatively, demonstrates a denial of due process.
We reject his claim of cumulative error.
       9. The Sentence Must Be Modified To Strike the Parole Revocation Fine
       The trial court imposed a $10,000 parole revocation restitution fine pursuant to
section 1202.45; the fine was suspended unless Washington violated parole. Washington
argues, and the Attorney General agrees, this fine should be stricken because his
sentence, as actually imposed, included only two consecutive LWOP terms (plus the
great bodily injury enhancement on count 10) and a consecutive indeterminate term of

                                             41
25-years-to-life. Determinate terms on all other counts were stayed. We agree. It is
error to impose the parole revocation fine on a defendant sentenced to an LWOP term
and an indeterminate life term with no determinate terms: Section 1202.45 is
inapplicable when the sentence does not include a period of parole. (People v.
McWhorter, supra, 47 Cal.4th at p. 380 [striking parole revocation fine when defendant
sentenced to death and no determinate term]; People v. Oganesyan (1999)
70 Cal.App.4th 1178, 1182 [striking parole revocation fine when defendant received only
LWOP and indeterminate life sentences]; see People v. Brasure (2008) 42 Cal.4th 1037,
1075 [parole revocation fine proper when defendant, in addition to being sentenced to
death, also sentenced to an unstayed separate determinate prison term].)
       10. The Minute Order and Abstract of Judgment Do Not Accurately Reflect the
           Sentence Imposed
       As reflected in the trial transcript, on count 10, kidnapping for extortion, the court
imposed a sentence of LWOP, plus five years for the section 12022.7, subdivision (c),
enhancement, and stayed the section 12022.7, subdivision (a), enhancement pursuant to
section 654. However, the minute order and the abstract of judgment erroneously state
the LWOP sentence on count 10 was also stayed pursuant to section 654. Those clerical
errors should be corrected to accurately reflect the court’s sentencing pronouncements.
(See People v. Farell (2002) 28 Cal.4th 381, 384, fn. 2 [trial court’s oral pronouncements
are best indicator of intent and prevail over clerk’s minute order]; People v. Mitchell
(2001) 26 Cal.4th 181, 185 [appellate court may order abstract of judgment corrected in
order to accurately reflect the oral judgment of sentencing court].)




                                             42
                                      DISPOSITION

       The judgment is modified to strike count 9 and the $10,000 parole revocation fine
and to reflect the trial court’s imposition of an indeterminate sentence of life without
parole plus five years under count 10, to run consecutively to the sentence impose on
count 6. In all other respects the judgment is affirmed. The superior court is directed to
prepare a corrected abstract of judgment and to forward it to the Department of
Corrections and Rehabilitation.




                                                  PERLUSS, P. J.

       We concur:



              WOODS, J.



              ZELON, J.




                                             43
