Filed 9/18/15 P. v. Griffin CA3
                              NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.



                                                       COPY

              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                      THIRD APPELLATE DISTRICT
                                                     (Sacramento)
                                                            ----




THE PEOPLE,                                                                                  C071140

                   Plaintiff and Respondent,                                     (Super. Ct. No. 10F03096)

         v.

SYLVESTER GRIFFIN,

                   Defendant and Appellant.




         A jury found that defendant Sylvester Griffin, a former medical transport driver,
raped and murdered Alice Murphy, a 64-year-old resident of a Folsom housing complex
where defendant had provided medical transport for the victim’s neighbor. Faced with
undisputed DNA evidence of his semen at the crime scene, defendant testified he had
consensual sex with the victim but did not commit the crimes. The jury found defendant
guilty of first-degree murder committed during rape and burglary, with personal use of a
deadly weapon, a pillow and/or pillowcase. (Pen. Code, §§ 187, 190.2, subd. (a)(17),



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12022, subd. (b)(1); undesignated statutory references are to the Penal Code.) The jury
also found defendant guilty on separate counts of rape and first-degree burglary (§§ 261,
subd. (a)(2), 459), but acquitted him on a robbery count.
       On appeal, defendant makes multiple attacks on some DNA evidence (partial
profiles from low-level mixed samples) but fails to show prejudice in light of
unchallenged DNA evidence of his sperm at the crime scene. Defendant also claims
instructional error and complains of a midtrial recess of 18 calendar days (eight court
days). We affirm the judgment.

                                 FACTS AND PROCEEDINGS

       The victim and her cat lived in the Mercy Senior Housing Complex in Folsom.
She had a habit of leaving her front door unlocked and sometimes ajar, even at night, so
the cat could come and go. At the time of her death a few days before Christmas 2009,
the victim was still recovering from a neck injury for which she wore a cervical collar.
       In 2009, defendant worked as a driver for Rapid Response medical transport
company. One of his clients was the victim’s neighbor, Constance Blassingame, who
lived two doors away from the victim. Twice a week defendant arrived around 5:00 a.m.,
parked, and walked past the victim’s apartment to Ms. Blassingame’s door. This service
ended in early November 2009.
       On Saturday, December 19, 2009, the victim spent the day with her friend, Tamara
O’Reilly. O’Reilly recalled dropping the victim home around 9:00 p.m. and later
receiving a message that the victim had called, but no one answered the phone when
O’Reilly called back Sunday morning around 11:00 a.m. A police detective testified
O’Reilly told him she tried to call the victim Saturday night but no one answered. The
victim’s computer was turned on at 8:09 p.m. and off at 10:50 p.m. on Saturday.
       On Monday, December 21, 2009, at about 11:50 a.m., O’Reilly arrived at the
victim’s home for a planned visit. The door was wide open. A couple of newspapers


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were on the front porch. The victim’s body was on her bed with a pillowcase spread over
her face. She was pronounced dead at the scene. Her purse was missing and was not
recovered. Police pursued a lead that a transient had been seen with a purse but were able
to exclude that person.
       DNA analysis of semen at the crime scene yielded a cold hit on a DNA database,
pointing to defendant. In the trial court and on appeal, defendant does not dispute that
DNA evidence of his semen was at the crime scene.
       The cause of death was homicidal asphyxia, atypical because the neck and hyoid
bone were not fractured. The coroner opined there was neck compression as a result of
pressure combined with the cervical collar against her neck, as well as possible
smothering, covering the nose and mouth. The victim had bruises and abrasions to her
face and pinpoint hemorrhages consistent with asphyxiation. She had two fractured ribs
and bruising to her chest, abdomen, vagina, arms, and legs. Bruises on the inside of her
thighs were consistent with sexual assault. The coroner resisted defense counsel’s
attempts to elicit an opinion that the state of the sperm indicated the sex occurred three to
five days earlier. She could not say when the sex occurred.
       As to the time of death, the coroner, who saw the body at the scene on Tuesday,
December 22nd, at 2:00 a.m., opined the victim “had died very recently, meaning, within
the past 24 hours. It could have been longer. It could have been shorter, but based on the
observations of the lividity and rigidity, that seemed relatively reasonable.” The coroner
clarified, “It could have been more than 24 hours. It could have been 36 hours.” This
would put the time of death as early as 2:00 p.m. Sunday, December 20, 2009.
       Employment records show defendant worked Saturday, December 19, 2009, with
his first pick-up at 4:40 a.m. and his last assignment at 5:12 p.m. He did not work
Sunday, December 20th. He worked Monday, December 21st, with his first pick-up at
6:10 a.m. and his last at 4:13 p.m. Defendant’s supervisor, who also rented defendant a
room in her home, testified defendant phoned her on Saturday, December 19th and said

                                              3
he would not be home that night because he was going to Stockton to see his cousin,
whose house had been robbed. He did not come home Sunday, and she did not see him
again until Monday, December 21st, at work.
         Police canvassed the victim’s neighbors. Neighbor Steven Scribner, whose DNA
was not found at the crime scene, said he and the victim planned to watch a football game
on Sunday, December 20th, but no one answered when he knocked on her door, which
was closed tight. He later phoned but no one answered. The timing was uncertain.
Scribner told police he knocked and phoned Sunday around 1:30 p.m. Scribner was
unavailable as a witness, but the jury saw his “Skyped” conditional examination taken a
year after the murder, in which he said he phoned around 11:30 a.m. and went to her door
around a half hour later and again about a half hour later.
         Ms. Blassingame testified that when she left for an appointment that Monday
morning, the victim’s door was closed, as it had been for several days, and when
Blassingame returned home around 10:00 or 10:30 a.m., the victim’s door was closed and
“It was swarming with police.” Or perhaps she saw the police when she later went out
again.
         After the DNA analysis of semen at the crime scene indicated a match with
defendant’s DNA profile, the police located him in his home state of South Carolina,
where he had moved about a month after the murder, ostensibly to care for sick parents.
Police tape-recorded a phone conversation, played for the jury, in which defendant denied
knowing the victim but agreed to look at a photograph. After receiving the emailed
photo, defendant phoned police and left a message that he did not recognize the victim.
         After his arrest, defendant told police in a tape-recorded interview, played for the
jury, that the victim was probably a neighbor lady who once asked for help corralling her
cat as defendant waited for his transport client. He helped the lady get the cat. She
invited him into her kitchen and gave him juice. He was there about five or 10 minutes



                                               4
and never entered the bedroom. When told there was evidence he was in the bedroom, he
said he did not recall being in the bedroom, and he denied having sex with the victim.
       In the trial court, defendant objected to some, but not all, of the DNA evidence,
without specification by item. Defendant did not object to some of the DNA evidence
that his sperm was found at the crime scene, and on appeal he says he does not dispute
that his DNA was on the victim’s underwear, towel, and bed sheet.
       In the trial court, defendant did object to other DNA evidence (partial profiles or
low-level minor-donor profiles from low-level mixed samples). At an Evidence Code
section 402 hearing, the prosecution’s DNA expert Michelle Chao testified to analysis of
(1) sperm fractions in biologic evidence and (2) nonsperm mixed samples from more than
one source, e.g., sweat, saliva, nose mucous and vaginal secretions. The trial court ruled
the DNA evidence admissible.
       Chao testified to the jury that she performed DNA testing on swabs from the
victim’s body, pillow case, bed sheets, towels, underpants, and carpet. Chao was able to
obtain full DNA profiles in some samples from the victim’s left breast, inner thigh,
underwear, sheet, and towel. They were the same as defendant’s DNA profile, estimated
to occur at random among unrelated individuals in approximately one in multiple
quadrillions or sextillions (depending on the particular item tested) of the African
American population which includes defendant, one in 680 sextillion of the Caucasian
population and one in 32 septillion of the Hispanic population.
       Partial profiles of the sperm and nonsperm fractions of other samples, including
those taken from the victim’s body, were consistent with defendant’s DNA profile.
       “Foreign” DNA material not belonging to the victim or defendant was detected in
some samples from the vaginal and thigh swabs and cuttings from the towel and bed
sheet. Testing of five samples, all of which had a full profile on the sperm fraction,
indicated a foreign allele at one locus (a number 16 allele on the eighth chromosome) that
was not consistent with the victim’s profile. Chao determined it could be a minor

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contributor who has a 16 allele or it could be a product of, or inherent to the sperm
fraction, meaning it could be “elevated stutter” -- which occurs when an allele breaks
apart during testing and is detected as a separate, smaller allele -- that didn’t get filtered
out.
       Scrapings from under the victim’s fingernails revealed only the victim’s DNA,
except for one scraping with an extra allele that was not consistent with defendant’s
profile. Clippings of the victim’s fingernails revealed only the victim’s DNA.
       One spot of blood on the carpet contained the victim’s DNA profile, plus an
additional allele not consistent with defendant’s profile. Chao said it could have been
deposited by anyone walking barefoot on the carpet at any time.
       Defendant testified at trial. He was 41 years old at the time of the charged crimes.
He admitted he abused drugs over the years and had prior convictions for grand theft in
1994, possession of cocaine with intent to distribute in 1995, and bank robbery in 1997.
As he waited for Ms. Blassingame one day, the victim approached and asked for his help
in retrieving her cat. He helped. She invited him in, wanted him to stay, and invited him
to come back sometime. Yet they never exchanged phone numbers. He returned three
times, because he was lonely and unable to reconcile with his wife. The first time, the
victim said to come back after dark to avoid being seen by the neighbors. The second
time, they drank alcohol, talked, and had sex. The third and last time was Saturday,
December 19, 2009, around 9:00 or 10:00 p.m. They talked about their children and then
had sex in the victim’s bedroom. Defendant testified he left the victim, alive and well,
around midnight or 1:00 a.m. Sunday morning, went home, and stayed there all day
Sunday watching football on television. He sometimes rented a motel room to get away
from the noisy children in the house where he rented a room. So as not to hurt the
mother’s feelings, he told her he was going to Stockton one day in early December, but
that was just an excuse for spending the night at a motel.



                                               6
       Defendant claimed he was unaware of the victim’s killing when he left California
a month later, to be closer to his ailing parents in South Carolina. He heard on the news
of the murder at the housing complex but did not think the women he had sex with could
have been murdered. He recognized her in the emailed photo but lied because he did not
think he could help the investigation. He withheld the fact he had sex with her because
they had promised to keep their relationship “discreet.”
       Defendant testified he had nothing to do with the charged crimes.
       Defendant’s mother, his wife, his ex-wife, and his friend testified to their opinion
that defendant is not violent or angry towards women, despite his drug use.
       Defense witness Zena Dougherty, who lived in the housing complex, testified she
brought a can of cat food to the victim’s door on Sunday around 12:30 or 1:00 p.m., and
knocked. The door opened a few inches; a hand reached out and took the can; and the
door closed. Dougherty did not recall telling police that the victim came outside and
talked with her. Dougherty has had memory problems since she fell after speaking with
the police.
       Prosecution rebuttal witness, Police Detective Jonathan Lasater, testified
Dougherty told him on Tuesday, December 22, 2009, that she brought a can of cat food
to the victim around noon on Monday, December 21st, and they spoke on the doorstep
for 10 to 15 minutes. When the detective reminded Dougherty that the victim was
already dead by then, Dougherty said it must have been Sunday but that did not make
sense either, because she feeds her cat much earlier on Sundays before she leaves for
church.
       The jury found defendant guilty of murder committed during rape and burglary,
with personal use of a deadly weapon, pillow or pillowcase, but found him not guilty of
robbery.
       The trial court sentenced defendant to life without possibility of parole for the
murder committed during rape and burglary, plus one year for the personal use of a

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deadly weapon. The court stayed sentence on the rape and burglary counts under section
654.

                                        DISCUSSION

                                              I

                                       DNA Evidence

       The bulk of defendant’s appellate briefing is devoted to multiple attacks on some
of the DNA evidence admitted at trial. He first argues the trial court erred in refusing to
conduct a hearing under People v. Kelly (1976) 17 Cal.3d 24 (Kelly) on the question
whether there is a generally-accepted scientific protocol for interpreting low-level DNA
mixtures containing partial DNA profiles, after the defense presented new evidence
questioning the continuing reliability of DNA testing of “mixed sample[s],” where two or
more contributors are present. Second, defendant argues the trial court erred in allowing
evidence that a minor donor partial profile found in several nonsperm mixed samples was
“consistent with” defendant’s genetic profile from the sperm samples, where the nature of
the partial profiles precluded any statistical analysis. Third, defendant argues the trial
court should have excluded evidence of minor-donor partial-profiles in low-level samples
because there was no affirmative showing the analyst complied with scientifically-
accepted protocols in connection with comparison to known profiles, use of composite
profiles, and lack of laboratory guidelines regarding low-level mixture interpretation.
       We consider it unnecessary to address the merits of these arguments, because
defendant concedes that some of the DNA evidence of his sperm at the crime scene was
properly admitted, and he fails to show any possible prejudice from the additional DNA
evidence.
       Thus, assuming purely for the sake of argument that the trial court should have
excluded the evidence, erroneous admission of the DNA evidence requires reversal only
if it is reasonably probable the verdict would have been more favorable to defendant in


                                              8
the absence of the challenged evidence. (People v. Venegas (1998) 18 Cal.4th 47, 93.)
Defendant urges, unconvincingly, that federal constitutional error triggering a more
favorable standard of prejudice for him. However, the ordinary rules of evidence
generally do not impermissibly infringe on a defendant’s constitutional rights. (People v.
Kraft (2000) 23 Cal.4th 978, 1035-1036.) Defendant offers no reason to depart from the
general rule and instead says admission of the challenged DNA evidence was prejudicial
under any standard.
       People v. Capistrano (2014) 59 Cal.4th 830, held that any error in allowing a
DNA expert to testify regarding one test she did not personally administer was harmless,
where she also testified about the results of another DNA test which she did personally
perform. (Id. at pp. 870-873.) In that case, there was also other evidence rendering any
error harmless, e.g., the victim identified defendant’s co-perpetrators and another witness
saw defendant with property matching the property stolen from the victim. (Ibid.) We
recognize that Capistrano was a capital case with a stricter standard of prejudice, and the
DNA evidence there, showing DNA “consistent with” the defendant’s profile, was less
probative than the challenged DNA evidence admitted in this case. (Ibid.)
       People v. Jones (2013) 57 Cal.4th 899, held that, even assuming the prosecution
failed adequately to prove general acceptance by the scientific community regarding a
“dot intensity” technique for DNA analysis, any error in admitting the evidence was
harmless under any standard in light of the DNA expert’s rebuttal testimony about his
own re-evaluation of the sample using a different, unchallenged technique. (Id. at
pp. 935-940.)
       Here, defendant claims the challenged DNA evidence was the “only” evidence
supporting the state’s case. Not so. The unchallenged DNA evidence supported the
state’s case. That defendant claimed consensual sex did not strip the unchallenged DNA
evidence of its value in proving defendant was the perpetrator of the charged crimes.



                                             9
       Under the heading arguing that inability to calculate statistical probabilities
rendered some of the DNA evidence inadmissible, defendant argues he was prejudiced
because admission of the evidence complicated the defense by requiring defense counsel
to make an extremely technical argument as to why the evidence was unreliable.
Although it does not appear defendant sought to exclude the evidence on the grounds of
time consumption or juror confusion, the trial court in ruling the DNA evidence
admissible stated it had weighed probative value against prejudicial effect under
Evidence Code section 352. However, the utility of defendant’s partial attack on DNA
evidence at trial eludes us, unless perhaps the defense hoped to confuse the jury. In any
event, we see no prejudice from defendant responding to the challenged evidence. The
DNA expert’s entire testimony consumed only one day plus one hour of trial time, not an
inordinate amount of time for DNA evidence.
       In his opening brief, defendant concludes his prejudice argument by saying “the
DNA evidence discussed here -- including (1) the statistics for the sperm fraction profile
from the vaginal swab[,] (2) any remaining profiles found on the vaginal swab and (3) the
non-sperm evidence -- should not have been admitted in this case. In connection with the
non-sperm DNA evidence and for the reasons discussed [regarding absence of statistics],
the admission of the improper evidence cannot be found harmless. And the prejudice
was exacerbated here by the improper admission of the DNA profiles interpreted from
the vaginal swab and the highly incriminating statistics attributed to that evidence. In
light of the conceded presence of DNA evidence which did not match either [defendant]
or [the victim], the improper admission of substantial DNA evidence cannot be found
harmless under any standard. Reversal is required.” (Orig. italics.) Defendant’s reply
brief says that, although the unchallenged evidence derived from defendant’s semen was
consistent with the defense theory that he had consensual sex with the victim a day or a
day-and-a-half before her death, the defense theory “became substantially more
complicated in the face of the additional DNA evidence for which no statistics was

                                             10
offered. Thus, counsel had to explain that the expert’s opinion that the evidence was
‘consistent with’ [defendant’s] profile required ignoring additional DNA left by the
actual perpetrator. . . . Of course, had the statistical analysis been performed, the jury
could have been told the degree to which such evidence was consistent with [defendant]
as compared to an unknown third party.” (Orig. italics.)
       However, testimony about the challenged evidence being consistent with
defendant did not require ignoring the evidence of a “foreign [donor].” Moreover,
defendant oversells the value of the “foreign [donor]” evidence. Much of it was possibly
explained as “elevated stutter.” Moreover, its presence was minimal and, as the
prosecutor argued to the jury, traces of foreign DNA are to be expected in nonsanitized
environments and, had the killer been someone other than defendant, much more foreign
donor DNA should have been present at the crime scene, despite defendant’s theory that
this phantom wore gloves.
       Defendant’s reply brief claims the challenged DNA evidence was critical to the
prosecution’s case because the prosecutor argued to the jury that the sheer volume of the
samples proved her case. However, what defendant cites is the prosecutor’s rebuttal to
defense counsel’s suggestion that the prosecution had to prove the absence of foreign
DNA. The prosecutor told the jury that traces of foreign DNA are to be expected in a
nonsanitized environment, and the tiny trace alleles on the small number of items in this
case was inconsequential, given “all the profiles that you saw on this visualizer and all
the items and all the cuttings and all the swabs. . . .” Thus, the prosecutor’s point was
that, if the killer were someone other than defendant, that person would have left much
more DNA than the few samples found.
       In his reply brief, defendant argues “the question is whether, absent the improperly
admitted DNA evidence, a single juror could reasonably find that the sperm sample
evidence -- which was explained by the defense -- proved beyond a reasonable doubt that
[defendant] committed the crime, especially in light of DNA evidence found which

                                              11
according to the state’s own expert was inconsistent with [defendant].” However,
defendant cites no authority that we should disregard the unchallenged DNA evidence in
assessing the prejudicial effect of challenged evidence. That defendant admitted having
sex with the victim does not render unduly prejudicial the additional DNA evidence of
defendant’s presence at the crime scene.
       We conclude defendant fails to show prejudicial error warranting reversal based
on the DNA evidence.

                                              II

                                           Recess

       Defendant argues a recess of the trial for 18 calendar days (eight court days), after
the prosecution presented some of its witnesses, violated his state and federal
constitutional rights to due process and section 1050’s requirement that there be good
cause for continuances. We conclude the contention is forfeited because defendant
apparently agreed to a recess of six court days, and he failed to object to the addition of
two court days.

       A.     Background

       Defendant expects us to assume it was the prosecutor who wanted the recess, but
the record does not disclose who proposed the recess or why. Instead, the record
indicates everyone agreed to the majority of it (six court days) before jury selection. The
trial court stated on the record on February 29, 2012, that the court and counsel had
worked out the schedule in chambers, and the tentative schedule was for jury selection to
commence March 13th, opening statements on March 19th, “and there is a short time
period that we will be dark. That’s the last two [court] days of March [Wednesday
March 28th and Thursday March 29th, with no trial on Fridays] and the first week of
April[.]” Before opening statements, the court on March 14th informed the jurors of this
anticipated schedule.

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       At the end of the day on Thursday, March 22nd, after the prosecution presented
the testimony of defendant’s former supervisor and housemate, the court informed the
jury: “[W]e have moved through the witnesses that we -- some of the witnesses that we
thought might be coming in early next week. [¶] So we have had somewhat of a change.
So the calendar you have, you can cross off next Monday and Tuesday [March 26 and
27]. So you’re not coming back on the 26th and the 27th. Mark that through on the
calendar that you received. [¶] You’re going to be coming back on April 9th. So that’s
the Monday right after Easter, at 9 o’clock[.]”
       Outside the jury’s presence, the court noted that, pursuant to an informal
agreement, it would meet with counsel on Monday March 26th to go over the jury
instructions.
       Defendant did not object to the recess.
       When trial resumed on Monday, April 9th, the prosecution called as its next
witness, the DNA analyst Michelle Chao. She testified for the full day plus an hour on
the following day. The prosecution called a final, brief witness from the crime lab. The
defense presented its entire case on Wednesday, April 11th, and the prosecution called a
rebuttal witness that day. The jury heard closing arguments on Monday, April 16, 2012.

       B.       Forfeiture

       Defendant cannot complain on appeal about the recess, because he apparently
agreed to the recess of six court days (or at least did not state any objection on the record)
and did not object when two more court days were added. The contention is thus
forfeited. (People v. Ochoa (2001) 26 Cal.4th 398, 440-441 [forfeiture of constitutional
claim because failed to object to recess of nine calendar days, including five court days,
during trial], abrogated on another point as stated in People v. Prieto (2003) 30 Cal.4th
226, 263, fn. 14; People v. Johnson (1993) 19 Cal.App.4th 778, 791 [defendant failed to
object to planned holiday recess of 17 days, including nine court days, during


                                             13
deliberations].) As a general rule, failure to object to errors in the trial court, including
claimed violations of statutes and fundamental constitutional rights, relieves the
reviewing court of the obligation to consider those errors on appeal. (People v. Romero
(2008) 44 Cal.4th 386, 411.) The reason for the rule is to allow errors to be corrected by
the trial court and to prevent gamesmanship by the defense. (Ibid.)
       Seeking to avoid forfeiture, defendant argues on appeal that the right to a jury trial
“without interruption or delay at a critical juncture” is a fundamental component of the
federal and state constitutional right to jury trial, requiring a personal waiver by the
defendant. However, waiver of jury trial is not at issue here, where defendant got his jury
trial. His appellate claim is of a due process violation.
       Defendant says People v. Aguilar (1984) 35 Cal.3d 785, 794, noted that when an
error affects the framework of a trial rather than merely the evidence presented, conduct
by counsel will not constitute a valid waiver of a fundamental constitutional right.
Defendant then summarily states, as if it were fact, his opinion that the asserted error here
impacted the entire framework within which the jury evaluated the evidence. We are not
persuaded. Aguilar involved a very different issue, i.e., waiver of a non-English-
speaking defendant’s state constitutional right to an interpreter throughout the court
proceedings.
       Defendant also argues that some “fundamental” protections cannot be waived
without the client’s concurrence, and in determining whether a particular principle is
“fundamental” the courts look to “historical practice” and whether the practice has a
“lengthy common-law tradition.” Defendant says the right to an uninterrupted jury trial
has a long common-law tradition. He cites authority of a common law tradition that,
once evidence has been given, the jury cannot be discharged until they give their verdict,
except in cases of necessity. Here, however, the jury was not discharged.
       We conclude defendant forfeited any challenge to the recess.



                                              14
                                              III

                            CALCRIM No. 359 - Corpus Delecti

       Defendant maintains that, because identity was the central issue in the case, the
jury instruction on corpus delecti (CALCRIM No. 359) -- which prohibits reliance on a
defendant’s inculpatory out-of-court statements alone as proof that a crime occurred, but
allows such reliance to prove identity as the perpetrator -- impermissibly lowered the
prosecution’s burden to prove identity beyond a reasonable doubt. Although defendant
did not make any inculpatory out-of-court statements, he argues the jury may have found
inculpatory his initial lies to police about not knowing the victim. Assuming for the sake
of argument that the issue is preserved for appeal despite defendant’s failure to object to
the instruction in the trial court, we see no grounds for reversal.
       The trial court instructed the jury pursuant to CALCRIM No. 359:
       “The defendant may not be convicted of any crime based on his out-of-court
statements alone. You may only rely on the defendant’s out-of-court statements to
convict him if you conclude that other evidence shows that the charged crime was
committed.
       “That other evidence may be slight and need only be enough to support a
reasonable inference that a crime was committed.
       “The identity of the person who committed the crime and the degree of the crime
may be proved by the defendant’s statement alone. [Italics added.]
       “You may not convict the defendant unless the People have proved his guilt
beyond a reasonable doubt.”
       In reviewing the contention that the instruction lowered the standard of proof, the
question is whether there was a reasonable likelihood the jury misapplied the instruction.
(Victor v. Nebraska (1994) 511 U.S. 1, 6 [127 L.Ed.2d 583]; People v. Williams (2013)
56 Cal.4th 630, 688-689.) The challenged instruction is not viewed in isolation but is


                                              15
considered in the context of the instructions as a whole. (Estelle v. McGuire (1991) 502
U.S. 62, 72 [116 L.Ed.2d 385]; People v. Moore (2011) 51 Cal.4th 1104, 1140.)
       CALCRIM No. 359 sets forth the corpus delecti rule which essentially precludes
conviction based solely on a defendant’s out-of-court statements. (People v. Ledesma
(2006) 39 Cal.4th 641, 721 (Ledesma).) The rule requires the prosecution to prove that a
crime actually happened, apart from the defendant’s out-of-court statements. (Ibid.) The
evidence of a crime may be slight and need not point to the defendant as the perpetrator.
(Ibid.) The corpus delecti rule does not require independent proof that the defendant is
the perpetrator. (Ibid.) The principal purpose of the corpus delecti rule is to ensure that a
defendant is not convicted of a crime that never occurred. (Ibid.) That purpose is
fulfilled by the admission of evidence sufficient to establish that a crime occurred. (Ibid.)
       It is also well established that a defendant’s inculpatory out-of-court statements
may, however, be relied upon to establish his or her identity as the perpetrator of a crime.
(Ledesma, supra, 39 Cal.4th at p. 721.) This is because the perpetrator’s identity is not
part of the corpus delecti. (Ibid.)
       People v. Foster (2010) 50 Cal.4th 1301 (Foster), in approving CALJIC No. 2.72,
the predecessor instruction to CALCRIM No. 359, noted it “did not state . . . that identity
‘did not have to be proved.’ ” (Id. at p. 1345.) “Rather it instructed that elements of a
crime must be proved by evidence independent of any admission made by the defendant
outside of the trial, but that the perpetrator’s identity, which is not an element, may be
established by an admission. Contrary to defendant’s assertion, the instruction’s
statement that ‘[s]uch identity . . . may be established by an admission’ reflects a
recognition that identity must be established.” (Ibid.)
       Here, the corpus delecti rule was clearly satisfied by the uncontroverted evidence
that the victim was murdered, i.e., she was strangled to death and was bloody and
bruised. The issue is identity.



                                             16
       While this appeal was pending, defendant’s appellate counsel was able, in an
unrelated case, to convince the Sixth Appellate District in People v. Rivas (2013)
214 Cal.App.4th 1410 (Rivas), to hold that the corpus delecti instruction is deficient to
the extent it suggests, through its reference to identity, that criminal defendants can be
convicted based only on extrajudicial statements that they committed a crime. (Id. at
pp. 1427-1431 [finding no constitutional violation or prejudicial state law warranting
reversal].) The Second Appellate District disagreed with Rivas’s criticism of CALCRIM
No. 359, in People v. Rosales (2014) 222 Cal.App.4th 1254, 1258 (Rosales).)
       Rivas, supra, 214 Cal.App.4th 1410, acknowledged the corpus delecti rule
requires some evidence that a crime occurred, independent of the defendant’s statements,
but the identity of the person who committed the crime is not part of the corpus delecti.
(Id. at p. 1428; see also, Ledesma, supra, 39 Cal.4th at p. 721.) “ ‘[O]nce the necessary
quantum of independent evidence is present, the defendant’s extrajudicial statements may
then be considered for their full value to strengthen the case on all issues.’ [Citation.]
Plainly, that would include identity where it is at issue. But the reference to identity in
CALCRIM No. 359 presents a risk of confounding the jury by telling jurors that a
defendant’s inculpatory extrajudicial statements, taken alone, do not suffice to allow the
jury to convict the defendant of a charged crime--and yet those statements, again taken
alone, are entertainable to prove the defendant’s ‘identity [as] the person who committed
the crime’ (CALCRIM No. 359, 3d par.), which to any juror can only mean the
defendant’s identity as the perpetrator, i.e., the guilty party. The instruction requires
reconsideration.” (Rivas, supra, 214 Cal.App.4th at p. 1429, fn. omitted.)
       Rivas was not swayed by the California Supreme Court’s endorsement of the
validity of the predecessor instruction, CALJIC No. 2.72, in Foster, supra, 50 Cal.4th at
p. 1345, because Rivas noted the predecessor instruction, unlike the current instruction,
specifically stated identity was “not an element of the crime.” (Rivas, supra,
214 Cal.App.4th at p. 1429, fn. 8.)

                                              17
       Rivas nevertheless found no constitutional violation or state law error warranting
reversal. (Id. 214 Cal.App.4th at pp. 1429-1431.) The jury was told more than once that
it could find the defendant guilty only if convinced beyond a reasonable doubt that he
committed them. (Id. at p. 1429.) And CALCRIM No. 220 informed the jurors they
must consider all the evidence and find the defendant not guilty unless the prosecution
proved him guilty beyond a reasonable doubt. (Id. at p. 1430.) “Because other evidence
strongly pointed to [the defendant’s] guilt, the error in giving CALCRIM No. 359 did not
so badly infect the entire trial that reversal is required.” (Ibid., fn. omitted.) And there
was no reasonable probability the outcome would have been more favorable to the
defense absent the error. (Ibid.)
       In response to the defense argument that CALCRIM No. 359 told the jury in effect
that his extrajudicial statements alone could supply a sufficient quantum of evidence to
convict him, Rivas said, “But that is just the point: at most, the jury may have understood
that [the defendant’s] inculpatory extrajudicial statements could justify convicting him--
‘identity . . . may be proved by the defendant’s statements alone.’ [Citation.] It is not
likely that the jury relied significantly on his statements in reaching the verdicts.” (Rivas,
supra, 214 Cal.App.4th at p. 1430, orig. italics.) The appellate court recited the evidence
of the defendant’s statements and noted the other evidence against him was more
important. (Ibid.)
       Rosales, supra, 222 Cal.App.4th at pp. 1259-1261, disagreed with the Rivas
court’s criticism of CALCRIM No. 359. Rosales said CALCRIM No. 359 states “with
greater precision and economy of language” than the predecessor instruction approved in
Foster, that the identity of the person who committed the crime may be proved by the
defendant’s statements alone, which is a correct statement of the law, and remind the jury
the accused may not be convicted unless the prosecution proves guilt beyond a
reasonable doubt. (Rosales, supra, 222 Cal.App.4th at p. 1261.) Rosales further stated
that, assuming error, it was harmless in that case involving robberies of a hotel clerk in

                                              18
front of witnesses and surveillance cameras. (Id. at pp. 1257, 1261.) The defendant’s
only extrajudicial statement, made as hotel guests wrestled him to the ground, was that he
would be killed if the gun was not returned to its owner. There was overwhelming
evidence the defendant was the man who committed the robberies, and he was positively
identified by eyewitnesses to the robberies. (Ibid.)
       We question the Rivas court’s criticism of CALCRIM No. 359. But we need not
take a stand on the matter because, even assuming error for the sake of argument, it was
clearly harmless under any standard.
       Defendant argues it is reasonably likely the jury understood the challenged
instruction to mean the prosecution did not have to prove beyond a reasonable doubt that
defendant was the perpetrator. Defendant says his out-of-court statements did not admit
guilt but at most showed he lied to the police about not knowing the victim. Defendant
says the instruction told the jury these statements could prove his identity as the assailant.
He points out the prosecutor in closing argument called defendant a liar, said defendant
lied to the police more than 25 times, told the jury “you have his statement” and nothing
indicated someone else raped and killed the victim. In rebuttal, the prosecutor told the
jury, “Ask yourself if that man right there has convinced you of an alibi, the liar that he is
. . . [did] he really [have] an alibi?” According to defendant, the “infirmity” of the
instruction was not “cure[d]” by the instruction that the jurors could not convict
defendant “unless the People have proved his guilt beyond a reasonable doubt,” because
the disputed instruction told them defendant’s own statements were proof against him.
       However, the prosecutor never argued to the jury that defendant’s out-of-court
statements alone sufficed to prove he was the perpetrator.
       Moreover, the unchallenged DNA evidence against defendant is strong evidence
of his guilt, despite his claim that he had consensual sex with the victim. No evidence
whatsoever supported his self-serving testimony about repeated consensual sexual
contact with a woman who did not even give him her phone number. In light of the

                                             19
strong evidence against defendant, it is unlikely, improbable, and inconceivable that
CALCRIM No. 359 misled the jury into finding defendant guilty of murder solely
because he lied to police about knowing the victim.
       Defendant cites Francis v. Franklin (1985) 471 U.S. 307 [85 L.Ed.2d 344], in
support of his argument that the jurors could have interpreted the instruction as indicating
his pretrial statement was a means by which the prosecution could prove his identity as
the perpetrator beyond a reasonable doubt. However, Francis v. Franklin involved an
instruction setting up a mandatory rebuttable presumption found to have created an
unconstitutional burden-shifting presumption regarding intent. (Id. at p. 316.) Here, the
challenged portion of the instruction involved a permissible finding, not a presumption,
and it would be permissible to rely on extrajudicial admissions to prove identity once the
corpus delecti has been established.
       We conclude there was no instructional error regarding identity.

                                              IV

                CALCRIM No. 207 -- Date of Murder Need Not Be Proven

       Defendant claims the trial court erred in instructing the jury with CALCRIM No.
207 -- that the state did not need to prove the exact date of the murder -- because it
undercut defendant’s alibi defense that the murder occurred Monday when defendant was
at work. Defendant claims the asserted error violated his federal constitutional rights to
effective assistance of counsel and to present a complete defense, by effectively
preventing his trial counsel from responding to the prosecution’s case. Assuming for the
sake of argument the issue is not forfeited by failure to object to the instruction in the trial
court, the contention lacks merit.
       The information, as read to the jury, alleged all crimes occurred “on or about”
December 21, 2009.




                                              20
       The trial court instructed the jury: “It is alleged that the crimes occurred on or
about December 21, 2009. The People are not required to prove that the crimes took
place exactly on that day but only that they happened reasonably close to that day.”
       The Instructional Duty for this instruction state the instruction “should not be
given: (1) when the evidence demonstrates that the offense was committed at a specific
time and place and the defendant has presented a defense of alibi or lack of opportunity;
and (2) when two similar offenses are charged in separate counts.” (Judicial Council
of Cal., Crim. Jury Instructions (2012) Bench Notes to CALCRIM No. 207.)
       Under section 955, “[t]he precise time at which the offense was committed need
not be stated in the accusatory pleading . . . .” However, “ ‘if the defense is alibi . . . the
exact time of commission becomes critically relevant to the maintenance of the defense.
An instruction which deflects the jury’s attention from temporal detail may
unconstitutionally impede the defense.’ (People v. Barney (1983) 143 Cal.App.3d 490,
497.)” (People v. Richardson (2008) 43 Cal.4th 959, 1027 (Richardson).) It is improper
to give the instruction “when the prosecution’s proof establishes the offense occurred on
a particular day to the exclusion of other dates, and when the defense is alibi (or lack of
opportunity) . . . .” (People v. Jennings (1991) 53 Cal.3d 334, 358-359.) When these
conditions are not met, the trial court does not err in giving the instruction because the
instruction does not “deflect the jury’s attention from a crucial temporal element for
which the defendant had an alibi.” (Richardson, supra, 43 Cal.4th at p. 1028.)
       Richardson held a trial court did not err in giving the instruction (former CALJIC
No. 4.71, predecessor to CALCRIM No. 207) in a case involving sex offenses and
murder of a child, where the prosecutor planned to argue the murder occurred either in
the evening or the following morning; the prosecutor actually argued to the jury that the
murder happened between 9:00 and 10:00 p.m.; and the defendant presented “only a
partial alibi.” (Id. 43 Cal.4th at p. 1027.) His partial alibi was based on evidence that he
left a friend’s home (near the victim’s residence in the same small neighborhood) around

                                               21
9:10 p.m. and got to his (defendant’s) nearby home at 10:00 p.m., though other witnesses
saw him around the neighborhood around 11:00 and 11:30 p.m. (Id. at pp. 1027, 972-
973.) Richardson stated, “Given this state of the evidence -- where the prosecution could
have argued that the murder occurred sometime between 9:00 p.m. and 11:30 p.m. of
December 3, if not in the early morning of December 4, and the inability of the defense to
have established a firm alibi for defendant during this timeframe, the trial court did not
err in deciding to give the instruction. It did not deflect the jury’s attention from a crucial
temporal element for which the defendant had an alibi. The prosecution’s subsequent
election during argument of a specific time period -- from 9:00 to 10:00 p.m. -- did not
render the instruction erroneous so much as irrelevant.” (Id. at pp. 1027-1028.) Insofar
as the instruction became irrelevant, there was no reasonable likelihood it was applied in
a manner that resulted in a constitutional violation. (Id. at p. 1028.)
       Here, defendant did not have even a partial alibi. He claims on appeal that the
prosecution presented evidence that the victim died at about 2:00 a.m. on Monday,
December 21, 2009, and defendant presented an alibi that he was at work that day from
6:10 a.m. until 4:13 p.m.
       There are several problems with defendant’s argument. First, the prosecution’s
evidence did not establish time of death at 2:00 a.m. Monday; rather, the coroner testified
she could not specify the time of death, and it could have happened as early as 2:00 p.m.
on Sunday. The prosecutor told the jury “[w]e will never know” exactly when it
happened. Defendant could have gone there Sunday, or even Saturday, based on
unsuccessful attempts by friends to contact the victim and the Sunday newspaper left on
her porch, and stayed awhile before killing her and leaving. Second, even if the murder
happened at 2:00 a.m. Monday, as defendant supposes, defendant’s showing up for work
in Sacramento at 6:10 a.m. Monday is not an alibi for a murder committed in Folsom at
2:00 a.m. Monday.



                                              22
       Defendant’s claim of alibi depends on his insinuation that the killer must have left
the victim’s home around 10:00 Monday morning, because some neighbors thought they
noticed the victim’s door closed on Monday morning as late as 10:00 a.m., yet the door
was wide open when the victim’s body was discovered at 11:50 a.m. Monday. This
evidence about the door going from closed to open midmorning Monday neither
pinpoints occurrence of the crimes nor affords defendant an alibi defense so as to render
improper the “on or about” jury instruction. Even assuming for the sake of argument that
the victim’s neighbors in the senior housing complex were accurate in their recollections,
none of them actually went to the victim’s door on Monday morning to enable them to
know whether the door was completely closed in a way that would have prevented the
victim’s cat from opening it. The evidence established the cat’s habit of opening the
door. Defendant argues neither the cat nor wind could have pushed “wide open” the door
in the sheltered alcove, but he offers no evidence about behavior of a cat whose mistress
was murdered. Although we do not buy into defendant’s assumption that the killer must
have opened the door between 10:00 and noon on Monday, we nevertheless note
defendant offered no independent evidence of his whereabouts during that two-hour time
period. Although defendant’s supervisor testified defendant’s work log showed he
started work at 6:10 a.m. Monday morning and worked all day, she also testified
defendant himself was the person who filled out that log. Since his job took him on the
road, his self-reported log is insufficient alibi for his whereabouts between 10:00 a.m. and
11:50 a.m. on Monday, so as to render erroneous the “on or about” jury instruction.
       We conclude the instruction was proper and did not undercut any alibi defense.




                                            23
                                   DISPOSITION

     The judgment is affirmed.



                                                 HULL   , J.



We concur:



     NICHOLSON          , Acting P. J.



     MURRAY             , J.




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