People v. Eagle CA1/1

P
Filed 12/31/20 P. v. Eagle CA1/1
                  NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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ordered published for purposes of rule 8.1115.


          IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                      FIRST APPELLATE DISTRICT

                                                   DIVISION ONE


 THE PEOPLE,
           Plaintiff and Respondent,
                                                                    A157735
 v.
 DENNIS RAY EAGLE,                                                  (Alameda County
                                                                    Super. Ct. No. 612133)
           Defendant and Appellant.


         A jury convicted appellant Dennis Ray Eagle of one count of first degree
murder with a rape special circumstance for the 1979 murder of Betty Elias.
He was sentenced to a term of life without the possibility of parole. He was
not charged with the crime until January 2016, after his deoxyribonucleic
acid (DNA) profile was matched to DNA obtained from the murder victim.
On appeal, he argues that the trial court abused its discretion in denying his
motion to dismiss for delay in prosecution, violated his Sixth Amendment
right of confrontation when it admitted certain case-specific hearsay
testimony by the prosecution’s fingerprint expert, and violated his right to
due process by imposing fines and fees without making a determination of his
ability to pay. Appellant also contends that the prosecutor committed
misconduct during closing argument and asserts that a parole revocation fine
was erroneously imposed. We agree the abstract of judgment must be




                                                               1
corrected to delete the parole revocation fine but otherwise affirm the
judgment.
            I. FACTUAL AND PROCEDURAL BACKGROUND
      Following a preliminary hearing, an information was filed in August
2018 charging appellant with the October 28, 1979 murder of Elias (Pen.
Code,1 § 187, subd. (a)) with a rape special circumstance (§ 190.2,
subd. (a)(17)(C)).
A.    The Prosecution’s Case
      i.    The Crime Scene
      On Sunday, October 28, 1979, at around 11:20 a.m. Officer Aramis
Pabon of the Oakland Police Department (Department) was dispatched to a
room in a residential hotel on San Pablo Avenue on the report of a dead body.
When he arrived, Officer Pabon observed the victim lying on her back on the
bed. The room was in disarray as if there had been a struggle. Officer Pabon
confirmed she was deceased. He preserved the crime scene until evidence
technician Kevin Traylor and homicide Detective Garry Furry arrived, then
left to canvass the area for potential witnesses.
      Traylor entered the room and saw the victim lying on the bed. Her
body was partially covered by a curtain and by items of clothing that were
scattered on the bed. She had blood-like material around her head and neck.
A pair of green and grey-checked polyester pants intertwined with a pair of
women’s panties was by her head. The door showed no signs of forced entry.
Traylor documented the crime scene and took photographs. He diagramed
the apartment and marked certain items of evidence so they could be placed
in Department storage. He also dusted the crime scene for fingerprints.


      1All further statutory references are to the Penal Code unless
otherwise specified.

                                       2
After the coroner arrived, Traylor took photographs showing that the victim
was nude from the waist down. A sheet had been placed across her head and
shoulders. She was wearing a jacket, a shirt, and a bra that that had been
cut in half in the front. Her hands were lying across her abdomen.
      Traylor observed a curtain rod under the right side of the bed. The rod
was bowed, as if the curtain had been pulled down from the window to drape
over the body. The rod appeared to have bloodstains on it. Several
fingerprint-like ridge definitions were readily visible in the blood. He
packaged the rod carefully to avoid contact with its surface and took it to the
Department’s office, where he photographed it.
      Two days later, Detective Furry asked Traynor to examine an
apartment on Jefferson Street that was inhabited by a potential suspect
named Frank Malone. Inside the apartment Traynor found a rent receipt in
the name of Martin Rosales. Traynor was asked to look for any physical
evidence that might relate to the victim. He found a prescription bottle in the
name of Betty Elias. He also recovered some latent fingerprints and a
straightened wire coat hanger, which defense counsel later argued could have
been used as the murder weapon.
      ii.   The Autopsy
      Dr. Thomas Rogers performed the autopsy on Elias. During the
autopsy, he took photographs and collected evidence, such as blood and tissue
samples. Because this case appeared to involve a sexual assault, he took
oral, vaginal, and rectal swabs. The swabs were then rubbed over the surface
of a microscope slide. He also clipped the victim’s fingernails to preserve as
evidence. In 1979, DNA testing was not available.
      Dr. Rodgers observed a number of external blunt injuries including
abrasions on Elias’s right forehead and right eye, a laceration over the bridge



                                       3
of the nose, scrapes on the left side of the nose and in the left lip, along with a
group of bruises on the left side of the lower jaw and the right side of the chin
and neck. A laceration along the lower right jaw had penetrated into the
mouth. The blunt force injuries could have been caused by being struck in
the face with a hand or being thrown against a hard surface.
         Injuries to Elias’s neck and jawline were consistent with injuries
caused by strangulation. There were other injuries to her hands, right leg,
torso, left collarbone, and the chest in the area of the sternum. The injuries
on the hands and arms were consistent with defensive wounds. Petechial
hemorrhages in the eyes were consistent with asphyxia strangulation. An
internal examination of her neck showed multiple hemorrhages in the soft
tissue and revealed that her larynx was broken in three separate places.
         A toxicology study of Elias’s blood showed she had a blood-alcohol level
of .24 percent at the time of death. At this level, a person may be
uncoordinated, have an unsteady gait, and slurred speech. Dr. Rodgers
concluded the cause of death was asphyxiation by strangulation. The time of
death could have been the day the body was discovered up to several days
prior.
         iii.   Forensic Analysis
                a. DNA Evidence
         In 2015, Detective Herb Webber, who was assigned to the cold case
homicide unit, asked the Department’s crime lab to conduct a DNA analysis
for this case. There had been a prior request for a DNA analysis, but due to a
Department backlog the analysis had not been done. Laura Silva, a
criminalist supervisor, supervised Jennifer Sealy, who performed the DNA
analysis. Silva testified at trial as an expert in developing DNA profiles.




                                          4
      The DNA analysis was performed from material found on a vaginal
smear slide. While the sample was somewhat degraded, there were enough
sperm cells on the slide to obtain a DNA profile. The FBI’s Combined DNA
Index System (CODIS) national database matched appellant’s DNA profile to
the sample. The DNA profile was later matched to a reference sample
obtained from appellant. The DNA profile in this case would be expected to
occur approximately one in 16 trillion members of the population. The
victim’s clothing and fingernail clippings were also tested, but did not reveal
any male DNA so no further testing was done. Subsequent testing
determined that the fingernail clippings contained the victim’s DNA only.
      At trial, defense counsel conceded in his opening argument that the
DNA found in the victim belonged to appellant, and that appellant and the
victim must have had sexual intercourse at some point in time.
              b. Fingerprint Evidence
      Kimberly Lankford was a latent fingerprint examiner for the
Department. She had been working in the field for almost 30 years at the
time of trial. She testified as an expert in fingerprint analysis. Lankford was
assigned to this case in early 2015 after Detective Webber submitted a
request for information. She collected all the latent fingerprint lifts in the
case file.
      In July 2015, she was contacted by Detective Richard Vass. Detective
Vass brought in a set of appellant’s fingerprints that he had obtained from
the FBI and asked her to compare them to the latent lifts. Lankford knew
that appellant had been identified as a suspect based on DNA evidence, but
she did not know how the evidence had been found. Detective Vass did not
put any pressure on her, directly or indirectly, to reach a particular
conclusion.



                                        5
      Lankford initially analyzed the latent print from the bloody curtain rod
by referencing the photograph taken by Traylor in 1979. She later obtained
and photographed the curtain rod to confirm for herself that the 1979
photograph was authentic. She determined the print matched one of
appellant’s known fingerprints, based on more than eight points of similarity.
Specifically, the latent print matched appellant’s left middle finger. Her
conclusions were verified by a second fingerprint examiner.
      Lankford acknowledged at trial that there have been notable errors in
fingerprint identification analysis. To avoid bias, she analyzed the latent
print before examining appellant’s known impressions. In her opinion, the
Department’s crime lab implements best practices to avoid bias.
      iv.   Appellant’s Police Interview
      Detective Vass became aware of this cold case in June 2015, after Sealy
told him DNA evidence had linked appellant to the crime. He reviewed the
original reports on the case and asked Lankford to compare the fingerprints
on the curtain rod with appellant’s known prints. He did not consciously do
anything to try and influence her comparison. After she told him that she
believed the fingerprint from the curtain rod was a match, he decided to
interview appellant and obtain a DNA sample from him for confirmation. He
arranged to meet appellant (who was incarcerated in another state) in
October 2015.
      Although Detective Vass knew that the forensic evidence tied appellant
to the crime, he did not disclose this to appellant during the interview.
Instead, he told appellant he thought appellant might have information
about a murder. He also collected DNA evidence from appellant via a buccal
swab. A recording of the interview with appellant was played for the jury.




                                       6
      In the interview, appellant stated that he was a member of the Sioux
tribe and had lived in Montana for most of his life. When he was in the sixth
grade he lived with a cousin in San Jose, but he had never been to Oakland.
In 1979 he was living on a reservation in Montana. During the interview,
Detective Vass showed appellant a photograph of the victim and a photo of
the building where the crime was committed. Appellant said he did not
recognize either photo.
      Appellant told the officers that he had been arrested in 1980 for
burglary on the reservation in Montana. He remembered he had entered a
building that belonged to the owner of a gas station and stole gas cans and
oil. He was placed on probation for two years. He also told the officers that
he had been arrested in Texas in 1988. In that instance, he had been in a bar
and a friend told him to come over. He was very drunk and entered the
wrong house. He woke up in jail.
B.    The Defense Case
      i.    Testimony of Elias’s Acquaintance
      David Larson testified that he lived in the same hotel as Elias in 1979
and had known her for about three months before she was killed. Larson
worked as a bartender at a club called the Virginia Club, which was around
the corner from where Elias worked at a bar called La Palmera. Larson
knew that Elias was dating a Mexican man named “Francisco,” who was also
known as “Martin Rosalis.”2 They had not been together for very long.
      A few days after Elias’s death, Larson was interviewed by law
enforcement. He told an officer that Rosales lived in an apartment at Ninth



      2This individual was referred to by various names at trial, including
Frank Malone, Francisco, Martin Rosalis, and Martin Rosales. In our
discussion, we will refer to him as Martin Rosales.

                                       7
Street and Jefferson Street, and that Rosales and Elias would go back and
forth to each other’s apartments. The last time he saw Rosales with Elias
was a week before she was killed. He also told the officer that Francisco had
come to the Virginia Club on the Friday night before Elias’s death and had
two beers and a mixed drink before leaving. Rosales looked “down in the
dumps about something.”
      That night at the hotel at about 1:00 or 1:30 a.m., he heard Elias and
Francisco “hollering and screaming at each other.” She said she wanted her
keys back. She kept her room locked all the time and Francisco was the only
person who had a key. The couple frequently argued late at night, but
Larson had never seen Elias injured or bruised in any way.
      ii.   Testimony of Fingerprint Reliability Expert
      Simon Cole, a criminology professor at the University of California at
Irvine, testified as an expert witness in the history, reliability, and error
rates of fingerprint analysis, including the areas of contextual and
confirmation bias.
      Professor Cole stated that there are no actual nationwide standards on
how to declare a match between two sets of fingerprints. The International
Association for Identification, a professional organization of identification
professionals, has advised its members not to assert infallibility in reporting
their findings. Errors in fingerprint identifications have occurred in the past,
with the best known case being Brandon Mayfield. Mayfield was
misidentified as having been involved in the 2004 Madrid train bombings
when his fingerprints were flagged in a database comparison. An Algerian
man living in Spain was eventually identified as the actual source of the
incriminating fingerprint. The identification errors made in that case have
resulted in improvements to the latent print discipline. Studies have sought



                                        8
to examine the error rate for fingerprint identification, but no actual error
rate has been determined. The false positive error rate in at least one study
was less than 1 percent. There is a higher error rate for false negatives.
      Professor Cole testified that fingerprint comparisons can be influenced
by confirmation and contextual bias. Implicit confirmation bias occurs if a
person verifying a match knows that only certain classes of identifications are
submitted for confirmation. Unconscious confirmation bias is the tendency to
confirm a conclusion if you know what the original determination was. This
tendency is not possible to control for, so the only way to avoid it is to keep
the verifier blind to the conclusion that the original examiner reached.
      Contextual bias is bias that might arise from knowledge of the
circumstances of the case, including knowing that the individual has already
been identified through DNA evidence. Information unrelated to the
fingerprint analysis itself is considered “task irrelevant.” The less
information a fingerprint examiner has about a case, the better, so that he or
she is less likely to be influenced by either kind of bias. It is a better practice
to analyze the latent print by itself and to document its features before
viewing the known print. On cross-examination, Professor Cole stated that
even if an examiner receives information that could create bias, there is no
way to know whether his or her conclusion was actually influenced by bias.
C.    Summation and Verdict
      The prosecutor argued that the evidence showed Elias was sexually
assaulted contemporaneous to her murder. The crime was committed by
appellant. The DNA evidence obtained from the sperm found inside the
victim came from a single source, which was appellant. The fingerprint on
the curtain rod that was inked in blood also belonged to appellant.




                                         9
      Defense counsel argued that there were reasons to be skeptical of the
fingerprint evidence in this case. For example, the individual who verified
Lankford’s analysis knew she had made an identification and the verification
copy had her notations on it. Lankford did not analyze the latent print before
she received appellant’s exemplar, did not submit the latent print to a
fingerprint database, did not document every step of her work, and had been
given a lot of “task irrelevant” information. Counsel told the jury that
confirmation bias had led to misidentification of the fingerprint.
      After arguments were concluded, the jury was instructed on the
applicable law. The following afternoon, the jury reached its verdict, finding
appellant guilty as charged. Appellant was sentenced to a term of life in
prison without the possibility of parole. Various fines and fees were imposed.
This appeal followed.
                              II. DISCUSSION
A.    Motion to Dismiss for Delay in Prosecution
      Appellant first contends that the trial court erred in denying his motion
to dismiss based on the 36-year delay between Elias’s murder and the filing
of the complaint against him. He asserts the delay prejudiced his ability to
prepare a defense and receive a fair trial in violation of fundamental
principles of due process.
      i.    Additional Background
      In August 2017, appellant moved to dismiss the charges against him
for want of prosecution and denial of his right to due process. The following
facts were presented to the trial court.
      During the initial investigation from 1979 to 1980, the police
department collected biological and fingerprint evidence from the scene. The
department also interviewed various neighbors and friends, some of whom



                                       10
claimed to have heard Elias fighting with her then boyfriend shortly before
her death. The boyfriend was known by various names, including Francisco,
Frank Malone, Martin Rosiles and Martin Rosales. As described above,
Rosales’s apartment was searched, yielding a prescription pill bottle in
Elias’s name, a rent receipt, a coat hanger, and fingerprints.
      The investigation was reopened in 1993. An investigation report
prepared by Detective Webber noted that a fingerprint comparison was
completed in April 1993 and that eight latent impressions had been identified
as belonging to “Martin Rosilas.” Rosales was apparently never contacted by
police. Photographs of the fingerprints on the curtain rod found in Elias’s
room had been submitted to the California automated latent fingerprint
system “with negative results.”
      The investigation was next reopened in 2000, after Elias’s sister called
Sergeant Haney to report that the victim’s “20[-]year[-]old boyfriend” might
have been the killer. Haney learned that Rosales was last arrested in 1977,
and he provided Rosales’s fingerprint to the crime lab to obtain a comparison
to the bloody prints. Two years later, the comparison was completed but
there was no match. Forensic DNA work was not requested at that time.
      In 2012, Department investigators reopened the case and Detective
Webber requested DNA testing. The Department’s crime lab did not receive
the autopsy slides and associated evidence until three years later, in March
2015. The sperm cell profile was submitted for comparison to the CODIS
national database in early 2015. The following month, the FBI reported that
appellant’s DNA profile matched the vaginal slide sample.
      Following a hearing in March 2018, the trial court denied the motion to
dismiss. Appellant moved for reconsideration after the preliminary hearing,




                                      11
asserting that evidence adduced at the hearing supported the claim of
unreasonable delay. The trial court denied the motion for reconsideration.
      ii.   Applicable Legal Principles
      Both the state and federal Constitutions protect a defendant from the
prejudicial effects of lengthy delay between the commission of the crime and
the defendant’s arrest and charging. (People v. Nelson (2008) 

43 Cal. 4th 1242

, 1250 (Nelson).) Under federal law, due process requires dismissal of
the indictment if it is shown that delay in the case caused substantial
prejudice to the defendant’s right to a fair trial and the delay was an
intentional effort to gain a tactical advantage over the defendant. (People v.
Martinez (2000) 

22 Cal. 4th 750

, 765.) The record before us does not support a
finding of intentional delay for the purpose of tactical advantage, and
appellant does not contend otherwise.
      Under California law, negligent delay in bringing charges, when
accompanied by a showing of prejudice, may violate due process. Negligent
delay requires a greater showing of prejudice to establish a due process
violation than intentional delay. 

(Nelson, supra

, 43 Cal.4th at pp. 1255–
1256.) To avoid murder charges on the ground of prosecutorial delay, the
defendant must affirmatively show prejudice. The prosecution may offer
justification for the delay, and the court considering a motion to dismiss must
balance the harm to the defendant against the justification for the delay. (Id.
at p. 1250.) “Even a minimal showing of prejudice may require dismissal if
the proffered justification for delay is insubstantial. By the same token, the
more reasonable the delay, the more prejudice the defense would have to
show to require dismissal.” (People v. Dunn-Gonzalez (1996) 

47 Cal. App. 4th 899

, 915 (Dunn-Gonzalez).)




                                        12
      Prejudice may be demonstrated by “ ‘loss of material witnesses due to
lapse of time [citation] or loss of evidence because of fading memory
attributable to the delay.’ ” (People v. Catlin (2001) 

26 Cal. 4th 81

, 107,
quoting People v. Morris (1988) 

46 Cal. 3d 1

, 37.) The showing of prejudice
must be made on competent evidence and “must be supported by particular
facts and not . . . by bare conclusionary statements.” (Crockett v. Superior
Court (1975) 

14 Cal. 3d 433

, 442.) “We review for abuse of discretion a trial
court’s ruling on a motion to dismiss for prejudicial prearrest delay [citation],
and defer to any underlying factual findings if substantial evidence supports
them.” (People v. Cowan (2010) 

50 Cal. 4th 401

, 431 (Cowan).)
      iii.   Analysis
      Appellant contends the prosecution was negligent, and the delay
unjustified, when authorities failed to test the evidence on three different
occasions when the case was reopened in 1993, 2000, and 2012. He argues
that CODIS (the national DNA database) was established and fully
operational in California in 1998. He notes he was arrested in Montana in
1999 and claims his DNA would have been submitted to the CODIS database
at that time. Yet the request for DNA testing was not made until 2012, and
testing in this matter not performed for three more years. Appellant
similarly asserts that his fingerprints would have been in the national
Integrated Automated Fingerprint Identification System by at least 1999, the
year the system became fully automated. However, he does not address the
prosecution’s argument below that he failed to offer specific proof as to when
his fingerprints were actually entered into the national database.
      Appellant contends he was prejudiced by the delay, listing several
unavailable witnesses that he asserts could have offered favorable testimony
had the DNA testing been accomplished earlier. He also points to the loss of



                                       13
physical evidence, including the demolition of the hotel where the crime had
occurred, and cites the faded memories of any potential witnesses, including
himself. The trial court found that much of the prejudice asserted by
appellant was either speculative or overstated, but appellant had nonetheless
made a showing of “slight prejudice.”
      In opposing his motion to dismiss, the prosecution below argued that
the delay was justified and outweighed any prejudice that may have resulted.
The prosecution submitting evidence showing that appellant’s DNA sample
was not collected until June 2002 following his conviction in another crime,
and was not uploaded into the CODIS database until February 2005. The
lead DNA analyst for the Department’s crime laboratory testified that the
sperm cell sample was so degraded that testing kits available in 2005 would
not have been able to fully amplify or analyze the cells. Suitable testing kits
were not made available until 2007. Thus, the People contend, any analysis
of delay should be measured from 2007 when DNA testing of the sperm
sample became feasible.
      We conclude ample evidence supports the trial court’s determination
that the delay in prosecution was justified. The evidence establishes that
DNA technology could not have matched appellant to this case until 2007 at
the earliest. Appellant faults the Department for taking several more years
to process the DNA evidence, but as the trial court found, the Department
was laboring under a severe DNA testing backlog, and with finite resources it
could not address every case expeditiously. “[T]he difficulty in allocating
scarce . . . resources (as opposed to clearly intentional or negligent conduct)
[is] a valid justification for delay.” 

(Dunn-Gonzalez, supra

, 47 Cal.App.4th at
p. 915.) Thus, a substantial portion of the delay was entirely unavoidable,
and appellant fails to demonstrate that the additional delay caused by a



                                        14
failure to seek DNA testing sooner or to process the request was the result of
negligence.
      The situation before us is analogous to the one in 

Nelson, supra

,

43 Cal. 4th 1242

. In that case, investigators in 2002 compared evidence from
a 1976 murder scene with the defendant’s DNA and identified him as a
possible donor of the evidence. A jury later convicted defendant of murder.
On appeal, the defendant argued that the delay in prosecution violated his
right to due process. (Nelson, at p. 1247.) He challenged the delays in the
investigation, arguing that DNA technology had existed years before the law
enforcement agency made the comparison in his case and the delay amounted
to negligence.
      The Supreme Court disagreed: “A court may not find negligence by
second-guessing how the state allocates its resources or how law enforcement
agencies could have investigated a given case. . . . It is not enough for a
defendant to argue that if the prosecutorial agencies had made his or her case
a higher priority or had done things a bit differently they would have solved
the case sooner.” 

(Nelson, supra

, 43 Cal.4th at pp. 1256–1257.) The Supreme
Court concluded that the minimal prejudice to the defendant was outweighed
by the strong justification for the delay. (Id. at pp. 1255–1256).
      By the same reasoning, appellant here cannot establish that delays in
the investigation amounted to negligence. As the trial court noted, it is not
the task of the courts to determine how police departments should manage
their investigative resources between older or more recent homicides.
Appellant did not become a suspect until he was identified through a DNA
match in 2015. Prosecutors then worked to bolster their case by seeking a
fingerprint match and investigating appellant. As the Supreme Court
observed, “ ‘[p]rosecutors are under no duty to file charges as soon as



                                       15
probable cause exists but before they are satisfied they will be able to
establish the suspect’s guilt beyond a reasonable doubt.’ ” 

(Nelson, supra

,
43 Cal.4th at p. 1256.) Under the circumstances, we conclude there was
substantial justification for the delay.
      Appellant’s claim fares no better with respect to the delay in matching
his fingerprints to the latent prints found at the crime scene. A similar
argument was rejected by the Supreme Court in 

Cowan, supra

, 

50 Cal. 4th 401

. Following a murder in 1984, police discovered latent fingerprints at the
crime scene. (Id. at p. 417.) An investigator compared the fingerprints to
those of several known suspects, including the defendant, but found no
match. (Id. at p. 418.) Ten years later, after the murder remained unsolved,
the fingerprints were reexamined and found to match the fingerprints of the
defendant, leading to his arrest. (Id. at p. 420.)
      The Supreme Court rejected defendant’s claim that his case should be
dismissed on due process grounds because the 10-year delay was assertedly
caused by a deficient analysis of the fingerprints found at the murder scene.
(

Cowan, supra

, 50 Cal.4th at p. 436.) The court found no evidence of
intentional delay or negligence. “[A]t worst,” it concluded, law enforcement
“simply erred” and while the investigation may not have been perfect, “no
investigation is.” (Ibid.) Here, appellant claims the Department acted
negligently because it ran a fingerprint search through the statewide
database system rather than the national database, which was automated in
1999. Even if that were true, appellant provided no evidence of when his
fingerprints were entered into the national fingerprint database. Thus, any
possible misstep by the Department falls far short of a finding of negligence
on these facts.




                                           16
      We further conclude that appellant suffered only minimal prejudice by
the delay, and therefore the trial court did not abuse its discretion in denying
his motion. As discussed above, appellant could not have been identified by
his DNA until 2007, at the earliest. By the end of 2008, five of the witnesses
that appellant suggests could have offered favorable testimony had already
died. Further, much of the potential testimony by these unavailable
witnesses would have focused on the volatile relationship between Elias and
Rosales. Such testimony would have been largely duplicative of Larson’s
testimony, who testified that the couple frequently argued late at night, and
that he heard them “hollering and screaming” in Elias’s hotel room at about
1:00 or 1:30 a.m. on the night of the murder. To the extent the witnesses
could have supplied any additional information, appellant does not explain
the significance of this evidence. For example, he notes that a witness named
Maynard Harris had told police that he saw sheets tied to the drainpipe
outside of Elias’s window. He does not explain the significance of this
evidence. While he suggests witnesses living on the reservation in Montana
could have provided him with an alibi, he does not offer any specifics.
Finally, appellant’s own faded memory is of marginal relevance given that he
had denied ever meeting Elias or ever visiting Oakland, California.
      Considering the totality of the evidence, the trial court did not abuse its
discretion in finding that, although appellant suffered some prejudice from
the delay, there was substantial justification for the Department’s actions.
We conclude the trial court did not abuse its discretion in denying appellant’s
motion to dismiss.
B.    Admission of Expert Hearsay under People v. Sanchez
      Appellant contends that the trial court erred in admitting case-specific
hearsay testimony from the prosecution’s fingerprint expert in violation of



                                       17
People v. Sanchez (2016) 

63 Cal. 4th 665

and confrontation clause principles.
Over numerous defense objections, the court permitted Lankford to testify
about prior fingerprint comparisons conducted by others based on her review
of the case file, and in particular allowed plaintiff’s expert to testify that
“nobody in [the] fingerprint section had ever identified a match with the
curtain rod.” We conclude that the trial court erred in admitting this
testimony, but the error was harmless beyond a reasonable doubt.
      i.    Additional Background
      Fingerprint expert Lankford testified that prior to conducting any
fingerprint comparison, she reviewed the case file, which dated back to 1979.
The case file contained latent prints collected from the crime scene such as
the photograph of the bloody print found on the curtain rod. The file also
contained exemplar prints of individuals for whom comparisons had been
done, including Elias’s boyfriend Martin Rosales.
      Over defense counsel’s objections on the grounds of hearsay,
confrontation, foundation, and lack of personal knowledge, Lankford was
permitted to testify that there had been prior fingerprint comparisons in the
case, that there had been a comparison analysis performed with the
fingerprint exemplar on file for Martin Rosilas, and that before she began her
analysis “nobody in [the] fingerprint section had ever identified a match with
the curtain rod.” Lankford was not specifically asked to give the results of
the fingerprint comparison with Rosales’s print, but she confirmed that if
there had been a match, a report would have been generated and she would
not have been asked to do a comparison with a different suspect. The trial
court overruled the defense hearsay objections on the ground that Lankford’s
testimony was not offered for its truth.




                                        18
      ii.   Legal Principles
      “Hearsay” is an out-of-court statement, including a written verbal or
oral expression, offered for the truth of the matter asserted. (Evid. Code,
§§ 1200, subd. (a), 225.) In Sanchez, the Supreme Court held that “[w]hen
any expert relates to the jury case-specific out-of-court statements, and treats
the content of those statements as true and accurate to support the expert’s
opinion, the statements are hearsay. It cannot logically be maintained that
the statements are not being admitted for their truth.” 

(Sanchez, supra

,
63 Cal.4th at p. 686 & fn. 13.) “Case-specific facts are those relating to the
particular events and participants alleged to have been involved in the case
being tried.” (Id. at p. 676.) Such statements may not be related by an
expert as true “unless they are independently proven by competent evidence
or are covered by a hearsay exception.” (Id. at p. 686.)
      While an expert may rely on hearsay evidence in forming his or her
opinion, and may testify generally to background information that may be of
assistance to the jury 

(Sanchez, supra

, 63 Cal.4th at p. 676), the expert may
not relate case-specific facts outside his or her personal knowledge that have
not been independently established by competent evidence or that do not
come within any other hearsay exception. (Sanchez, at pp. 675–677, 686.) If
the case-specific hearsay is testimonial, the evidence must also satisfy the
Sixth Amendment’s confrontation clause. (Sanchez, at p. 680.)
      In Crawford v. Washington (2004) 

541 U.S. 36

, 53–54, 59, the United
States Supreme court held that the confrontation clause of the Sixth
Amendment prohibits the admission of testimonial hearsay unless the
declarant is unavailable and the defendant had a prior opportunity to
cross-examine the declarant. The Sanchez court considered “the degree to
which the Crawford rule limits an expert witness from relating case-specific



                                       19
hearsay content in explaining the basis for his opinion.” 

(Sanchez, supra

,
63 Cal.4th at p. 670.) Sanchez adopted the following rule: “If the case is one
in which a prosecution expert seeks to relate testimonial hearsay, there is a
confrontation clause violation unless (1) there is a showing of unavailability
and (2) the defendant had a prior opportunity for cross-examination, or
forfeited that right by wrongdoing” (Id. at p. 686.)
      The Sanchez court clarified that “[t]estimonial statements are those
made primarily to memorialize facts relating to past criminal activity, which
could be used like trial testimony. Nontestimonial statements are those
whose primary purpose is to deal with an ongoing emergency or some other
purpose unrelated to preserving facts for later use at trial.” 

(Sanchez, supra

,
63 Cal.4th at p. 689, fn. omitted.) We note that “to be testimonial the
statement must be made with some degree of formality or solemnity.”
(People v. Dungo (2012) 

55 Cal. 4th 608

, 619.)
      In this appeal, we must address whether the challenged testimony
constituted case-specific hearsay not covered by a hearsay exception, and if
so, whether the hearsay was testimonial and the appellant was afforded the
opportunity for cross-examination.
      iii.   Application
      We conclude that a portion of Lankford’s testimony in which she
related case-specific facts about prior fingerprint analyses was erroneously
admitted and constituted testimonial hearsay. Lankford introduced an
out-of-court statement that was offered for the truth of the matter when she
told the jury that previous unnamed fingerprint examiners had compared
Rosales’s prints to prints found at the crime scene, and that “nobody in [the]
fingerprint section had ever identified a match with the curtain rod.” This
testimony was indisputably case-specific, as it concerned evidence examined



                                       20
as part of the murder investigation in this case. Lankford’s hearsay
statements were testimonial because they concerned fingerprint comparisons
prepared by law enforcement officials to memorialize facts concerning a
completed crime and intended for use in a criminal trial. (See, e.g., People v.
Lara (2017) 

9 Cal. App. 5th 296

, 337 [gang expert testifying about police
reports created by other officers during official investigations of predicate
offenses was testimonial hearsay].) Finally, Lankford’s testimonial hearsay
violated appellant’s Sixth Amendment right of confrontation because there is
no indication that appellant was given the opportunity to cross-examine
these declarants. The prosecution was essentially permitted to introduce the
opinion of a second expert without exposing that witness to
cross-examination.
      We reject the Attorney General’s suggestion that Lankford’s testimony
was not offered for the truth but rather as background to explain why she
had been asked to perform a fingerprint analysis. Lankford’s statement that
previous examiners had not matched the bloody fingerprint to Rosales, a
possible third-party suspect, was unnecessary to support her conclusion that
appellant’s print was a match to the one found on the bloody curtain rod.
Lankford did not rely on this evidence to arrive at her result. Instead, she
conducted her own analysis, comparing the latent fingerprint on the curtain
rod to appellant’s exemplar. We fail to see why the prosecution would have
found it necessary to question Lankford along these lines if not to establish
that Rosales’s fingerprint had already been excluded. Indeed, the
prosecution emphasized this point in closing argument when he argued that
Lankford would not have undertaken another analysis if Rosales’s exemplar
had matched the print on the curtain rod. The Attorney General does not
contend that Lankford’s hearsay testimony about prior fingerprint analyses



                                       21
was subject to a hearsay exception or independently established by
competent evidence. In sum, the admission of this evidence ran afoul of the
rules set forth in Sanchez.
      iv.    The Error Was Harmless
      While we conclude the trial court erred in admitting Lankford’s
statements about the results of prior fingerprint identification efforts, the
error was harmless beyond a reasonable doubt given the totality of the
evidence in this case. “ ‘ “Confrontation clause violations are subject to
federal harmless-error analysis under Chapman v. California (1967) 

386 U.S. 18

, 24.” ’ ” (People v. Livingston (2012) 

53 Cal. 4th 1145

, 1159; People v. Geier
(2007) 

41 Cal. 4th 555

, 608.) Since Chapman, our high court has “ ‘repeatedly
reaffirmed the principle that an otherwise valid conviction should not be set
aside if the reviewing court may confidently say, on the whole record, that the
constitutional error was harmless beyond a reasonable doubt.’ ” (Geier, at
p. 608.) “The harmless error inquiry asks: ‘Is it clear beyond a reasonable
doubt that a rational jury would have found the defendant guilty absent the
error?’ ” (Ibid.; Livingston, at p. 1159.)
      The DNA evidence placed appellant at the murder scene through the
DNA profile taken from semen obtained from the victim’s vagina. The DNA
profile in this case would be expected to occur approximately one in 16 trillion
members of the population. The accuracy and reliability of the DNA
identification was never contested, and defense counsel conceded that the
DNA found in the victim belonged to appellant and that appellant and the
victim must have had sexual intercourse at some point in time. Appellant’s
fingerprint was also positively matched to the latent fingerprint found on the
bloody curtain rod. The DNA evidence combined with the fingerprint match




                                         22
constitutes overwhelming proof that appellant committed the crime as
charged.
      In addition, the erroneously admitted testimony pertained only to the
prior fingerprint analyses. Lankford personally examined the latent print
and compared it to appellant’s prints that had been obtained from the FBI,
confirming that his prints matched the one from the curtain rod. While
appellant’s expert witness, Professor Cole, offered testimony regarding
potential sources of bias, there was no evidence that the accuracy of
Lankford’s identification had been tainted by bias. Nor did any expert
witness offer a direct challenge to her identification. It is clear beyond a
reasonable doubt that a rational jury would have found appellant guilty even
absent the error.
      Appellant argues that the inadmissible evidence “obliterated from the
jurors’ minds any possibility that Rosales was involved.” He further asserts
that the prejudicial effect of Lankford’s testimony was exacerbated by the
prosecutor’s closing arguments, a matter we address below. But even if there
had been no mention of a prior fingerprint comparison to Rosales, any
reasonable juror would have surmised that he had been eliminated as the
person who left the print on the bloody curtain rod. As the Attorney General
notes, both Lankford and Professor Cole testified that fingerprints are unique
to every person. Thus, because appellant’s fingerprint matched the latent
print on the bloody curtain rod, then Rosales’s fingerprint necessarily did not.
Accordingly, the error was harmless beyond a reasonable doubt.
C.    Alleged Disparagement of Defense Counsel
      Appellant claims the prosecutor committed misconduct in his closing
argument by disparaging defense counsel in front of the jury.




                                       23
      i.     Additional Background
      In his closing argument, defense counsel urged the jurors to strongly
consider any doubts they had about the evidence, even doubts that were not
quantifiable, suggesting that any doubt could be a “reasonable doubt”
because the jurors represented the “gold standard” of reasonableness. In his
rebuttal argument, the prosecutor said that defense counsel had engaged “in
a bit of flattery” by telling the jurors that they “all passed the gold standard
because you’re all here.”
      Shortly thereafter, the prosecutor stated: “But the slick part of it is[,]
engage in a little bit of flattery and then let’s go with this fal[se] syllogism.
Therefore, every one of you is a reasonable person. Therefore if any one of
you has a doubt, therefore, that is a reasonable doubt. No. That’s not how it
works. It’s part of what the defense often attempts to do, which is empower
the lone dissenter in a jury, all right. Because one juror can hang up a case.”
Defense counsel’s objection that counsel was “disparaging [the] defense” was
overruled. Later, the prosecutor stated that defense counsel had made “an
attempt to lead you astray” by arguing that the untested straightened coat
hanger found in Rosales’s apartment could support a reasonable doubt.
      ii.    Legal Principles
      As official representatives of the people, prosecutors have a duty to be
reasonably objective in their closing statements. (People v. Talle (1952)

111 Cal. App. 2d 650

, 677.) “A prosecutor commits misconduct if he or she
attacks the integrity of defense counsel, or casts aspersions on defense
counsel.” (People v. Hill (1998) 

17 Cal. 4th 800

, 832.) “Casting uncalled for
aspersions on defense counsel directs attention to largely irrelevant matters
and does not constitute comment on the evidence or argument as to
inferences to be drawn therefrom.” (People v. Thompson (1988) 

45 Cal. 3d 86

,



                                         24
112.) The Supreme Court has rejected a claim of prosecutorial misconduct
where the prosecutor observed during closing remarks that “ ‘any experienced
defense attorney can twist a little, poke a little, try to draw some speculation,
try to get you to buy something,’ ” finding this did not “amount to a personal
attack on counsel’s integrity.” (People v. Medina (1995) 

11 Cal. 4th 694

, 759
(Medina).) On the other hand, “[i]t is improper for the prosecutor to imply
that defense counsel has fabricated evidence or to otherwise malign defense
counsel’s character.” (People v. Herring (1993) 

20 Cal. App. 4th 1066

, 1075
(Herring).)
      When a claim of misconduct is based on the prosecutor’s remarks to the
jury, we consider whether there is a reasonable likelihood that the jury
construed the challenged remarks in an objectionable fashion. (People v.
Williams (2013) 

56 Cal. 4th 630

, 671 (Williams).) Here, the prosecutor’s
remarks went no further than the comment in Medina that experienced
defense attorneys “ ‘twist’ ” or “ ‘poke’ ” to get the jury to “ ‘buy something.’ ”

(Medina, supra

, 11 Cal.4th at p. 759.)
      Rarely does a prosecutor’s personal attack on defense counsel amount
to reversible error. (People v. Taylor (2001) 

26 Cal. 4th 1155

, 1167.)
Prosecutorial misconduct requires reversal under the federal Constitution
when it infects the trial with such unfairness as to make the resulting
conviction a denial of due process. 

(Williams, supra

, 56 Cal.4th at p. 671.)
Misconduct not rising to this level is reviewed for prejudice under state law,
where we consider “whether it is reasonably probable that a jury would have
reached a more favorable result absent the objectionable comments.” (Ibid.;

Herring, supra

, 20 Cal.App.4th at p. 1074.) Even if some misconduct had
occurred, we would conclude there was no prejudice under either standard.




                                         25
      Moreover, the trial court instructed the jury that comments by the
attorneys were not evidence (CALCRIM Nos. 104, 222) and that the jury
alone had to decide what happened based solely on the trial evidence
(CALCRIM No. 200). These instructions serve to minimize any potential
prejudice from the prosecutor’s closing remarks. (See, e.g., People v. Smith
(2005) 

135 Cal. App. 4th 914

, 925; People v. Loker (2008) 

44 Cal. 4th 691

, 739.)
We are not persuaded that the prosecution’s closing arguments resulted in
any error, much less reversible error.
D.    Imposition of Restitution Fines, Fees, and Assessments
      Appellant contends that, under People v. Dueñas (2019) 

30 Cal. App. 5th 1157

, the trial court violated his federal constitutional rights by imposing
various fees and fines without making a determination of his ability to pay.
We conclude appellant has forfeited his Dueñas-related claims.3
      The trial court imposed a $10,000 restitution fine (§ 1202.4, subd. (b)), a
$40 court assessment fee (§ 1465.8), a $30 criminal conviction assessment fee
(Gov. Code, § 70373), and a sex offender fine of $300 (§ 290.3). Direct victim
restitution was reserved. Appellant did not object to the fines or fees.
Relying on Dueñas, he now claims the trial court erred because it did not sua
sponte hold a hearing to determine whether defendant could pay the fine and
fees before imposing them.
      By failing to object to the fine or fees and failing to request a hearing on
his ability to pay them, defendant forfeited any Dueñas objection—


      3 In 

Dueñas, supra

, 

30 Cal. App. 5th 1157

, the Court of Appeal for the
Second District, Division Seven, held that imposing assessments and a fine
on an indigent defendant violated due process-based rights that ensure
access to the courts and bar incarceration based on nonpayment of fines due
to indigence. (Id. at pp. 1167–1168, 1172.) The issues raised in Dueñas are
currently before the California Supreme Court. (See People v. Kopp (2019)

38 Cal. App. 5th 47

, review granted Nov. 13, 2019, S257844.)

                                         26
particularly where, as here, Duenas was decided before his sentencing. (See
People v. Gutierrez (2019) 

35 Cal. App. 5th 1027

, 1030–1031 (Gutierrez);
accord, People v. Lowery (2020) 

43 Cal. App. 5th 1046

, 1054; People v. Aviles
(2019) 

39 Cal. App. 5th 1055

, 1066–1067; People v. Frandsen (2019) 

33 Cal. App. 5th 1126

, 1153 (Frandsen).) His “failure to challenge the fees in the
trial court precludes him from doing so on appeal.” (People v. Aguilar (2015)

60 Cal. 4th 862

, 864.)
      Turning to the $10,000 restitution fine, section 1202.4 requires the
imposition of such a fine upon conviction of a crime, unless the court “finds
compelling and extraordinary reasons for not doing so.” (§ 1202.4, subd. (b).)
The minimum restitution fine for felony convictions is $300, and the
maximum fine is $10,000. (Id., subd. (b)(1).) The statute expressly provides
that “[a] defendant’s inability to pay shall not be considered a compelling and
extraordinary reason not to impose a restitution fine.” (Id., subd. (c).)
However, “[i]nability to pay may be considered . . . in increasing the amount
of the restitution fine in excess of the minimum fine pursuant to paragraph
(1) of subdivision (b).” (Ibid.) The burden of demonstrating such inability to
pay lies with the defendant. (Id., subd. (d); see People v. Castellano (2019)

33 Cal. App. 5th 485

, 490 [“Consistent with Dueñas, a defendant must in the
first instance contest in the trial court his or her ability to pay.”].)
      Here, appellant did not object to imposition of the maximum restitution
fine. Such an objection clearly would not have been futile as trial courts are
statutorily authorized to consider a defendant’s inability to pay any
restitution fine above the statutory minimum. (§ 1202.4, subds. (c) & (d).)
Accordingly, we conclude that appellant forfeited any challenge to the
restitution fine. (See People v. Smith (2020) 

46 Cal. App. 5th 375

, 395 (Smith)
[failure to object to imposition of maximum restitution fine on inability-to-pay



                                         27
grounds resulted in forfeiture of claim of inability to pay]; 

Gutierrez, supra

,

35 Cal. App. 5th 1027

at pp. 1032-1033 [same, noting that “even before Dueñas
a defendant had every incentive to object to imposition of a maximum
restitution fine based on inability to pay”]; 

Frandsen, supra

, 

33 Cal. App. 5th 1126

at p. 1154 [same].)
      Additionally, several courts have held that, where a defendant does not
object to imposition of the maximum restitution fine on grounds of inability to
pay, such failure also forfeits claims of inability to pay “much smaller”
criminal assessments. 

(Smith, supra

, 46 Cal.App.5th at p. 395; see 

Gutierrez, supra

, 35 Cal.App.5th at p. 1033 [“As a practical matter, if [defendant] chose
not to object to a $10,000 restitution fine based on an inability to pay, he
surely would not complain on similar grounds regarding an additional $1,300
in fees.”]; 

Frandsen, supra

, 33 Cal.App.5th at p. 1154 [“Given his failure to
object to a $10,000 restitution fine based on inability to pay, [defendant] has
not shown a basis to vacate assessments totaling $120 for inability to pay.”].)
We agree. Unlike the Dueñas defendant, appellant had a statutory right to
an ability-to-pay hearing that he did not exercise, thus forfeiting his
appellate claim that such a hearing was required. Had he requested such a
hearing, the same evidence relevant to his inability to pay the $10,000
restitution fine could also have established an inability to pay these smaller
assessments. We thus conclude that appellant has forfeited the opportunity
to raise an ability-to-pay challenge with respect to the court assessment fee,
the criminal conviction assessment fee, and the sex offender fine.
      Appellant alternatively argues that his trial counsel was ineffective for
failing to request an ability-to-pay hearing or object to the imposition of fines
and fees. “[A] defendant claiming the ineffective assistance of counsel is
required to show both that counsel’s performance was deficient and that



                                       28
counsel’s errors prejudiced the defense.” (People v. Hernandez (2012) 

53 Cal. 4th 1095

, 1105.) To establish prejudice, a “defendant must show that
there is a reasonable probability”—meaning “a probability sufficient to
undermine confidence in the outcome”—“that, but for counsel’s
unprofessional errors, the result of the proceeding would have been
different.” (Strickland v. Washington (1984) 

466 U.S. 668

, 694 (Strickland).)
      The record does not disclose why appellant’s counsel did not object to
the fine and fees. However, it is conceivable his attorney decided not to object
for reasons unrelated to his ability to pay. A defendant’s inability to pay is
just one among many factors the court should consider in setting the
restitution fine above the minimum. The court should also consider “the
seriousness and gravity of the offense and the circumstances of its
commission, any economic gain derived by the defendant as a result of the
crime, the extent to which any other person suffered losses as a result of the
crime, and the number of victims involved in the crime. Those losses may
include pecuniary losses to the victim or his or her dependents as well as
intangible losses, such as psychological harm caused by the crime.” (§ 1202.4,
subd. (d).) Appellant’s attorney may have concluded that, given the
seriousness of his offense and the psychological harm to Elias’s family, any
objection to the maximum restitution fine would have been fruitless.
      We also note that “in determining whether a defendant has the ability
to pay a restitution fine, the court is not limited to considering a defendant’s
present ability but may consider a defendant’s ability to pay in the future."
(People v. Frye (1994) 

21 Cal. App. 4th 1483

, 1487.) This includes a
defendant’s ability to earn prison wages. (Ibid.) Here, appellant was
sentenced to a term of life without the possibility of parole, and it was within
the trial court’s discretion to consider his ability to earn prison wages while



                                       29
serving his life sentence. (See Frye, at p. 1487.) Appellant has not indicated
that he lacks the ability to work and earn wages over the course of his term of
confinement.
      We reach the same conclusion as to the other fees and fines. “[A]
defense counsel’s decision whether to object to the imposition of fines and fees
can encompass factors beyond a defendant’s financial circumstances,
especially in serious cases involving potentially long prison sentences. . . . We
cannot speculate, given the absence of information before us, what led to
defense counsel’s decision not to object, but a myopic focus on [defendant’s]
financial circumstances that neglects any of the other factors at play in a
sentencing hearing may not provide an accurate picture of counsel’s strategic
calculus.” (People v. Acosta (2018) 

28 Cal. App. 5th 701

, 707.)
      On this record, appellant has not shown “a reasonable probability” that
the trial court would have reduced or stayed the restitution fine or stayed the
assessments had trial counsel objected to them and requested a hearing.

(Strickland, supra

, 466 U.S. at p. 694.) Thus, we reject appellant’s claim that
his trial counsel provided ineffective assistance when he failed to raise
appellant’s inability to pay in response to the trial court’s imposition of the
restitution fine, the court assessment fee, the criminal conviction assessment
fee, and the sex offender fine.
E.    Parole Revocation Fine
      The June 26, 2019 minute order for sentencing states that appellant is
to pay a restitution fine of $10,000 pursuant to section 1202.4, subdivision
(b), “and an additional Parole Restitution Fine of $10,000 [§ 1202.45] is
suspended pending successful completion of parole.” The abstract of
judgment indicates that the trial court imposed a parole revocation fine of
$10,000 pursuant to section 1202.45 “suspended unless parole is revoked.”



                                       30
Appellant correctly notes that the reporter’s transcript of the sentencing
proceedings does not mention a parole revocation fine or section 1202.45. The
Attorney General agrees that the abstract of judgment must be corrected to
eliminate the parole revocation fine.
      Numerous cases have vacated the parole revocation fines where the
sentence includes no period of parole. (See, e.g., People v. McWhorter (2009)

47 Cal. 4th 318

, 380 [striking a parole revocation restitution fine under
section 1202.45 where the defendant was convicted of special circumstance
murder and sentenced to life without parole]; People v. Andreasen (2013)

214 Cal. App. 4th 70

, 74 [same].) We direct preparation of an amended
abstract of judgment to correct this error. (People v. Jones (2012) 

54 Cal. 4th 1

, 89.)
                               DISPOSITION
      The trial court is directed to prepare and forward to the Department of
Corrections and Rehabilitation an amended abstract of judgment that omits
the parole revocation fine. As modified, the judgment is affirmed.




                                        31
                                 _________________________
                                 Sanchez, J.


WE CONCUR:


_________________________
Humes, P. J.


_________________________
Banke, J.




A157735 People v. Eagle



                            32

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