People v. Griffin CA3 ( 2015 )


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  • 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    NOT TO BE PUBLISHED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 This opinion has not been certified for publication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),
    1
    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
    2
    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
    5
    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
    7
    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.
    12
    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.
    24