1

Filed 5/14/13 Certified for partial publication 5/29/13 (order attached)

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Sacramento)

----

THE PEOPLE,

Plaintiff and Respondent,

v.

ZANG HER,

Defendant and Appellant.

C069153

(Super. Ct. No. 09F00826)

John Lone Eagle was found strangled to death with a telephone cord in his 

Carmichael bedroom. About $4,000 was missing from his bedroom. DNA consistent 

with the genetic profile of defendant Zang Her was found in three places in the house --

on a latex glove that was tangled in the telephone cord around John Lone Eagle‟s neck, 

on a pillow in the same bedroom, and in a blood spot on the entryway floor to the house. 

Defendant was also linked to John Lone Eagle through defendant‟s wife and an 

acquaintance. A jury found defendant guilty of first degree burglary and first degree 

murder with the special circumstance that the murder was committed during a burglary. 

The jury did not reach a verdict on whether defendant personally used a weapon (the 

telephone cord). 
2

Defendant appeals from the resulting prison sentence of life without the possibility 

of parole, raising three issues relating to the evidence and the jury‟s composition. 

Finding no merit in these contentions, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

A

The Prosecution’s Case

John Lone Eagle operated a business out of his home in which he bought and sold 

foreclosed homes. He employed four or five women to help him, and he transacted a lot 

of business in cash, which he kept in the house, oftentimes in plain view. 

In the summer of 2004 when he was murdered, John Lone Eagle was in poor 

health and was not very mobile. One August morning, an employee arrived at his house 

to start work. The door was unlocked and the house had been ransacked. She went into 

his bedroom and saw him on the bed with a pillow over his head. When she shook him 

and he was unresponsive, she noticed there was blood all over his pillow and shirt. She 

called 911. 

Police arrived and pronounced John Lone Eagle dead. He had been strangled with 

a telephone cord that was still around his neck. 

Forensics testing by criminalists Kristie Abbott and Jeffrey Herbert was conducted 

on the pillow, the glove, and blood stains found on the ground in the entryway to the 

house, on the wall behind the front door, and on the wall of the stairwell. 

As to three blood stains on the pillowcase, they contained a mixture of DNA from 

two contributors. In one of those samples (DNA 5), the major contributor had a DNA 

profile that “was the same” (meaning the profile matched defendant‟s at all 15 designated 

loci on the genome) as the reference profile of defendant‟s, and the minor contributor had 

a DNA profile that matched John Lone Eagle‟s. In the Asian population, the chance of a 

random person having a DNA profile matching defendant‟s was 1 in 150 quintillion. The 

two mixed-source samples (DNA 7 and DNA 9) on the pillowcase contained John Lone 
3

Eagle‟s DNA profile and alleles from a minor contributor at “two and four” of the 15 

loci. “The partial profile for the minor contributor to each mixture is consistent with the 

profile of the major contributor to DNA 5.” 

As to the glove, it contained defendant‟s DNA on the inside of three fingers that 

also contained John Lone Eagle‟s DNA. Defendant‟s and John Lone Eagle‟s DNA were 

also detected in a mixture on two other spots on the glove, which also contained an 

“additional allele” that indicated there was a third contributor. 

As to the blood stain found in the entryway on the ground, it contained about an 

even mixture of defendant‟s and John Lone Eagle‟s DNA profiles, as measured by a 

formula known as the combined probability of inclusion. The chances that a random 

person in the Hispanic population could have been a contributor to the sample were 1 in 

140 million. In the African American and Caucasian populations, it would have been 

even rarer. When using this formula, criminalist Herbert assumed the entryway blood 

sample contained DNA from only two people, both males, and there was no allelic 

dropout. Had he not made those assumptions, the numbers would have been “more 

common.” 

As to the blood stain on the wall in the stairwell, it contained DNA from only one 

person -- John Lone Eagle. 

As to the blood stain on the wall behind the front door, it contained DNA from an 

unknown male. 

Besides being linked to John Lone Eagle through DNA, defendant was linked to 

John Lone Eagle through defendant‟s wife and through an acquaintance named Derek 

Wong. About two months after the murder, police found a piece of paper in Wong‟s 

house that contained John Lone Eagle‟s address. In a recorded phone call between 

defendant and his wife, defendant admitted being introduced to Wong by his wife. 
4

B

The Defense

Defendant worked for a paint store at the time of the murder. As part of his job, 

defendant often had to wear latex gloves that were similar to the one found at the crime 

scene. Based on this evidence, defense counsel argued that defendant‟s discarded work 

gloves were used by the real killer when he murdered John Lone Eagle. 

DISCUSSION

I

The Trial Court Was Within Its Discretion To Admit Partial 

DNA Profile Evidence Without Accompanying Statistical Analysis

Defendant contends the trial court erred in allowing the People to admit testimony 

that a partial DNA profile in two mixed-source samples on John Lone Eagle‟s pillowcase 

was consistent with defendant‟s genetic profile. He argues that because the testimony 

about those samples was not accompanied by any statistical analysis, it had no probative 

value. As we will explain, defendant is wrong.

In California, only relevant evidence is admissible. (Evid. Code, § 350.) Relevant 

evidence is that “having any tendency in reason to prove or disprove any disputed fact 

that is of consequence to the determination of the action.” (Id., § 210.) An appellate 

court reviews a trial court‟s evidentiary rulings for abuse of discretion. (People v. 

Venegas (1998) 18 Cal.4th 47, 93.) Here, the trial court ruled that the People‟s expert 

could testify the partial DNA profile detected in both mixed-source samples was 

consistent with defendant‟s DNA because it was relevant circumstantial evidence of the 

perpetrator‟s identity in the context of other DNA evidence. This ruling was well within 

the court‟s discretion.

One of the People‟s DNA experts, Kristie Abbott, testified only that the alleles in 

the partial profiles were “consistent” (as opposed to being a “match”) with defendant‟s 

DNA profile, meaning he could not be excluded as a possible contributor. The 
5

prosecutor in closing argument used the same nomenclature when arguing that the alleles 

in the partial profile were “consistent” with defendant.1 

This evidence and argument was consistent with case law -- both in California and 

beyond -- that DNA testimony need not be accompanied by statistical analysis. In 

California, Division Five of the First Appellate District upheld admission of testimony 

that DNA evidence at the scene “ „belonged to‟ ” the defendant, where the People did not 

provide statistical support for that conclusion. (People v. Cua (2011) 191 Cal.App.4th 

582, 596, 597, 600.) Other state courts have ruled in cases similar to the one here that 

evidence of a partial DNA profile consistent with the defendant‟s profile is relevant and 

admissible absent statistical analysis. The Nevada Supreme Court explained it this way: 

“DNA nonexclusion evidence is admissible in the absence of supporting statistical data 

reflecting the percentage of the population that could be excluded as long as the 

nonexclusion evidence is relevant, because any danger of unfair prejudice or of 

misleading the jury is substantially outweighed by the defendant‟s ability to crossexamine or offer expert witness evidence as to probative value.” (Rodriguez v. State

(2012) 273 P.3d 845, 851.) A Missouri appellate court ruled as follows in response to a 

defendant‟s contention that, without that statistical analysis, the conclusions of the 

People‟s DNA experts were irrelevant and, therefore, inadmissible: “Even though a full 

genetic profile was not obtained, the circuit court could rely on the partial profiles that 

left [the defendant] as a possible source of the DNA along with the other evidence in 

determining guilt. „The weight to be afforded this evidence was within the province of 

the [fact-finder] to decide.‟ ” (State v. Harding (2010) 323 S.W.3d 810, 817-818.)

 

1 Defendant argues the prosecutor took the argument too far by arguing, “You are 

also seeing, at least at an extremely low level, alleles that are consistent with defendant 

but no other person.” Contrary to defendant‟s suggestion, the phrase “no other person” 

referred not to the entire population, but to John Lone Eagle and to other people whose 

DNA was tested as part of the investigation in this case. 
6

The rationale of these cases applies here. The evidence of the two partial profiles 

was relevant because they were consistent with the profile of the major contributor of the 

other blood stains on the pillow and therefore had a tendency in reason to show that 

defendant murdered John Lone Eagle. Specifically, Abbott testified the three blood 

stains on the pillowcase contained a mixture of DNA from two contributors. In one of 

those samples (DNA 5), the major contributor had a DNA profile that “was the same” as 

the reference profile of defendant‟s, and the minor contributor had a DNA profile that 

matched John Lone Eagle‟s. In the Asian population, the chance of a random person 

having a DNA profile matching defendant‟s was 1 in 150 quintillion. Abbott further 

testified the two mixed-source samples (DNA 7 and DNA 9) contained the victim‟s DNA 

profile and alleles from a minor contributor at “two and four” of the 15 loci. “The partial 

profile for the minor contributor to each mixture is consistent with the profile of the 

major contributor to DNA 5.” Thus, because the partial profile was consistent with the 

profile of the major contributor to the other blood stains on the pillow, which bore 

defendant‟s profile, it was relevant to support the People‟s theory that defendant killed 

John Lone Eagle. The court did not abuse its discretion in admitting the evidence.

II

The Trial Court Did Not Violate Defendant’s Constitutional Rights When It Placed 

Certain Restrictions On The Cross-Examination Of The People’s DNA Experts

Defendant contends the trial court violated his federal constitutional rights by 

limiting his cross-examining of Jeffrey Herbert about criticism of Herbert‟s statistical 

methods in a prior case and of Kristie Abbott about shortcomings at the Sacramento 

County crime laboratory (the crime lab) that were unrelated to the work in this case. As 

we explain, there was no error.
7

A

Factual Background

Defendant filed a motion requesting he be allowed to impeach Herbert with 

evidence of the following: Herbert‟s method of calculating probability statistics was 

criticized in a prior case, People v. Smith (06F00122); Herbert incorrectly testified in 

Smith the chance of a random person other than the defendant being a contributor to a 

mixed-source DNA sample was 1 in 95,000 when it was really 1 in 13; lack of 

understanding of statistical analysis of mixed-source samples led to the crime lab‟s 

removing him from his position analyzing DNA evidence; Herbert concealed criticisms 

of his work (i.e., he falsely testified in Smith that his work was approved following an 

administrative review); and he failed a competency exam at the crime lab. Defendant 

also requested he be allowed to introduce evidence that audits of the crime lab in 2005 

and 2010 uncovered deficiencies that led to delayed reaccreditation. Specifically, there 

were insufficient studies of the crime lab‟s internal validation of DNA testing methods; 

there was insufficient chain of custody for evidence; there were problems with the scope 

of authorization for DNA analysts; the entrance to the biology unit was not secured; and 

there were deficient protocols for reducing DNA contamination. 

The prosecutor argued that the criticisms of Herbert in Smith were mostly 

irrelevant because in Smith, unlike here, it was improper to assume there were only two 

donors to the mixed-source sample and there were strong indications of “allelic drop out” 

(meaning the sample level was very low so one could not see the complete DNA profile). 

Thus, while Herbert‟s use of the combined probability of inclusion method was arguably 

inappropriate in Smith, it was not inappropriate here. Explaining to the jury why the two 

cases were different would be an undue consumption of time, “basically a trial within a 

trial to flesh out these issues.” If the defense wanted to elicit that there were “dings” on 

Herbert‟s record, defense counsel could do that in a few, very focused questions on cross-
8

examination. Finally, the testimony in Smith did not show Herbert had lied or misled the 

jury when he stood by his random match calculation of 1 in 95,000. 

The trial court ruled defense counsel could question Herbert about the 

appropriateness of using the combined probability of inclusion method in this case and 

about errors in using that method in Smith and whether he received “some outside 

criticism,” but it would not permit a “full-blown inquiry” into Smith because it would be 

“enormously time consuming . . . [and] illuminating of . . . virtually nothing.” Defense 

counsel could not ask Herbert questions suggesting he lied in his testimony in Smith

because the transcripts did not support that he did. Defense counsel could ask Herbert 

whether he failed the competency exam, but the prosecutor could then elicit that 

thereafter he passed it. Defense counsel could ask whether Herbert‟s DNA case work 

had been restricted, but counsel could not elicit the details. As for delays in the 

accreditation of the crime lab, the court ruled defense counsel could ask Abbott and 

Herbert about those only if the shortcomings cited in the audits had a direct bearing on 

the DNA analysis in this case. 

At trial, defense counsel briefly cross-examined Herbert. Defense counsel did not 

ask Herbert if he made any mistakes in another case that resulted in outside criticism. He 

did not ask whether Herbert had failed a competency exam and whether there were 

limitations placed on him participating in DNA cases. At trial, during defense counsel‟s 

cross-examination of Abbott, he did not ask questions about whether the DNA analysis in 

this case could have been compromised by any of the shortcomings cited in the audits. 
9

B

The Court’s Limitations On Questioning Herbert And Abbott

Did Not Violate Defendant’s Constitutional Rights

1. Precluding Defense Counsel From Cross-Examining Herbert Regarding 

Details Of The Smith Case

Defendant contends the court violated his right to confrontation when it limited its 

cross-examination of Herbert about details of the Smith case. As noted, the trial court 

ruled defense counsel could question Herbert about the appropriateness of using the 

combined probability of inclusion method in this case and about errors in using that 

method in Smith and whether he received “some outside criticism,” but it would not 

permit a “full-blown inquiry” into Smith because it would be “enormously time 

consuming . . . [and] illuminating of . . . virtually nothing.” There was no violation of 

defendant‟s right to confront the witnesses against him with this ruling.

The key issue here regarding the validity of the random match probability statistics 

for the DNA sample in the entryway was whether the combined probability of inclusion 

method was appropriately applied for that sample -- not to a sample in another case. As 

to the sample in this case, defense counsel was allowed to elicit testimony from Herbert 

that he assumed the entryway blood sample contained DNA from only two people, both 

males, and there was no allelic dropout. Had he not made those assumptions, the 

numbers would have been “more common.” He was also allowed to elicit that alleles 

could be measured with confidence at only seven of the 13 loci. Under the trial court‟s 

ruling, defense counsel was also permitted to elicit (although he did not) that Herbert‟s 

use of the combined probability of inclusion method under those circumstances was 

inappropriate.

Compared to this questioning, asking Herbert about mistakes he made in the Smith

case using the combined probability of inclusion method would have been of little 

relevance while having the potential to confuse the issue and take up an undue amount of 
10

time. On this record, there was no violation of defendant‟s right to confront the witnesses 

against him by limiting this evidence. (Delaware v. Van Arsdall (1986) 475 U.S. 673, 

679 [89 L.Ed.2d 674, 683] [trial judges retain wide latitude insofar as the confrontation 

clause is concerned to impose reasonable limits on such cross-examination based on 

concerns about, among other things, confusion of the issues or interrogation that is only 

marginally relevant].)

Similarly, the trial court‟s ruling prohibiting defense counsel from questioning 

Herbert about his testimony in Smith did not violate defendant‟s right to confront the 

witnesses against him. Contrary to defendant‟s position both at the trial court and on 

appeal, the transcript does not show Herbert gave “willfully false testimony” about 

criticism of the statistics he provided in Smith. The transcript shows that Herbert 

acknowledged there was a “dispute” about the statistics he provided in Smith but that 

Herbert stood by his work, finding no errors and that his report was approved by his 

supervisor. As the trial court correctly found, defense counsel could not ask Herbert 

questions suggesting he lied in his testimony in Smith because the transcripts did not 

support that he did. As such, cross-examining him about this testimony in Smith would 

not have shed any negative light on Herbert‟s veracity.

2. Precluding Defense Counsel From Cross-Examining Herbert And Abbott

Regarding Deficiencies In The Crime Lab

Defendant contends the court violated his federal right to confront the witnesses 

against him when it precluded defense counsel from cross-examining Herbert and Abbott 

regarding deficiencies in the crime lab cited in two audit reports. Defendant fails to 

acknowledge the court did give defense counsel the opportunity to introduce such 

evidence if counsel could establish the shortcomings cited in the audit had a direct 

bearing on the DNA analysis in this case. Defense counsel made no attempt to do so in 

either cross-examination. Absent that link, evidence about the shortcomings in the audits 

would not have had a tendency in reason to help the jury evaluate the reliability of test 
11

results reported by Herbert and Abbott in this case. As such, the exclusion did not violate 

defendant‟s right to confrontation.

3. No Violation Of Defendant’s Due Process Rights

In an argument related to the two above, defendant contends the court‟s limitations 

on his cross-examination of Herbert and Abbott also violated his due process right to 

present a defense and to have a fair trial. 

Similar to the right to confrontation, a defendant‟s due process right to present a 

defense and have a fair trial apply only to “relevant and material” evidence that is of a 

significant probative value to the defense. (Washington v. Texas (1967) 388 U.S. 14, 23 

[18 L.Ed.2d 1019,1025].) The exclusion of defense evidence on a minor or subsidiary 

point does not interfere with these rights. (People v. Hawthorne (1992) 4 Cal.4th 43, 

58.) As we have explained, although the trial court placed limits on defense counsel‟s 

cross-examination of Herbert and Abbott, defense counsel was still permitted to question 

them about all aspects of their DNA testing in this case, a little bit about the testing in 

Smith, and any aspect of the crime lab audits that had a bearing on the reliability of that 

testing. As we have explained, this was the relevant evidence. As the court allowed 

defendant to introduce this evidence, there was no violation of defendant‟s due process 

right to present a defense and to have a fair trial.

III

The Trial Court Did Not Err In Dismissing Juror No. 12

Defendant contends the trial court violated his right to a decision by a unanimous 

and impartial jury when it dismissed Juror No. 12. He argues the court‟s inquiry: 

(1) intruded into the jury‟s deliberative process; and (2) did not reveal grounds to dismiss 

the juror because she was merely applying the presumption of innocence. 

As we will explain, defendant‟s first argument is forfeited and his second one 

lacks merit.
12

A

Background Regarding The Dismissal Of Juror No. 12

The day following the first day of deliberations, Juror No. 6 reported to the bailiff 

that Juror No. 12 “had decided on the first day of the trial how she was going to vote.” 

“She also said she was going to vote strictly on her feelings . . . there was no point in

talking about [the facts] with the rest of the jurors because she had already made up her 

mind on how she was going to vote.” 

After conferring with counsel, the court interviewed Juror No. 6, Juror No. 1 (the 

foreperson), Juror No. 7, and Juror No. 12. Thereafter, the court ruled Juror No. 12 had 

violated its instructions in several respects, “most significantly, by having reached her 

conclusion as to this case before the deliberative process even began.” Accordingly, the 

court dismissed Juror No. 12, replaced her with an alternate, and instructed the jury to 

begin deliberations anew. 

B

Defendant Forfeited His Contention That The Court

Conducted An Intrusive Inquiry Into The Jury Deliberations

Defendant contends the court violated his constitutional rights to a fair trial and 

impartial jury by conducting an intrusive inquiry into deliberations. Specifically, he 

claims the court improperly asked Juror No. 12 about her thought process when it asked 

her questions about her “feelings” in the case. Defendant has forfeited this claim by 

failing to object to the method by which the court conducted its inquiry.

During the court‟s inquiry of Juror No. 12, defense counsel never objected to the 

manner in which the court was questioning her. After the court finished questioning 

Juror No. 12 and asked both attorneys for their thoughts, defense counsel argued only that 

the juror‟s response about her feelings was “really the very, very, very natural human 

process of approaching problems.” When the court suggested that inquiring further with 

the other jurors might help determine whether Juror No. 12 was “willing to set that gut 
13

feeling aside and listen to the evidence, apply that law and collegi[all]y deliberate with 

the other jurors,” defense counsel said, “Right, that inquiry needs to be made; I agree.”

Under these circumstances, where defense counsel did not object to the court‟s 

inquiry and even agreed to a similar further inquiry of the other jurors, defendant has 

forfeited his argument that the questioning of the juror was improper. (People v. Avila

(2009) 46 Cal.4th 680, 727-728 [defendant forfeited his contention that the trial court‟s 

questioning of a juror “was not „even-handed,‟ and that the court „did not adequately 

question jurors as to the actual statements made, while delving into the deliberative 

process‟ ” because counsel agreed to the questioning and even suggested further 

questioning].)

C

The Court Did Not Err In Dismissing Juror No. 12

Defendant contends the court erred in dismissing Juror No. 12 because she was 

simply a holdout juror who was passionate and adamant about her opinion. “ „We review 

for abuse of discretion the trial court‟s determination to discharge a juror and order an 

alternate to serve. [Citation.] If there is any substantial evidence supporting the trial 

court‟s ruling, we will uphold it. [Citation.] . . . [H]owever, . . . a juror‟s inability to 

perform as a juror “ „must appear in the record as a demonstrable reality.‟ ” [Citation.]‟ ” 

(People v. Cleveland (2001) 25 Cal.4th 466, 474.) As we explain, there was no abuse of 

discretion here. Juror No. 12‟s inability to perform as a juror was based on substantial 

evidence in the form of testimony from three other jurors and Juror No. 12‟s responses to 

the court‟s questioning.

There was substantial evidence Juror No. 12 had reached a conclusion about how 

the case should be decided even before the deliberative process began and then refused to 

deliberate. Specifically, three jurors testified Juror No. 12 had made up her mind before 

deliberations began and refused to deliberate. And Juror No. 12 partially confirmed their 

version of events.
14

Juror No. 6 testified that Juror No. 12 “had specified from day one she had 

decided how she felt about the case and . . . had known from the very first time when she 

walked in how she was going to vote.” When other jurors “discussed with her that she 

was supposed to be basing her opinions on the facts of the case, she said she knew what 

the facts were and she was going with her feeling and she didn‟t care.” When other 

jurors started expressing their opinions about the case, Juror No. 12 “was busy doing stuff 

in her binder and wasn‟t paying attention anymore, and every time somebody would talk 

to her she‟d start yelling.” She mentioned that she did not want to miss her vacation with 

her grandson and “didn‟t want this to take too long.” 

Juror No. 1 testified that Juror No. 12 had made up her mind from the first day she 

walked in. Juror No. 12 said she was basing her opinion on her “feelings” and “intuition” 

and “not facts.” When other jurors tried to remind her she needed to work with the other 

jurors and discuss all their viewpoints, Juror No. 12‟s response was, “I don‟t care.” She 

also mentioned her grandson was coming to town and “she doesn‟t have time to do this.” 

Juror No. 7 testified that Juror No. 12 “mentioned the first day, that she had 

already decided.” “I‟ve already made up my mind. Nothing anyone says will change my 

mind. . . . From the very beginning, I had decided.” 

Juror No. 12 somewhat corroborated the testimony of the other jurors when she 

testified that “when I came in . . . looking at the defendant and everything that was 

presented before me, there was a feeling before the process started.” It was a “gut 

feeling” that made her “lean . . . toward a certain decision.” She listened to the court‟s 

instructions about “leav[ing] feelings out of this” but she was “not a robot” and felt 

“feelings have to come into decision-making” -- those “innate, gut, intuitive feelings that 

I cannot just dismiss.” She did mention that her grandson was going to be visiting and 

she “want[e]d the deliberation process to go faster than slower.” 

Based on these jurors‟ testimony, there was substantial evidence to support the 

trial court‟s determination that Juror No. 12 was unable to perform as a juror and 
15

therefore no abuse of discretion in excusing her. (See People v. Feagin (1995) 34 

Cal.App.4th 1427, 1436-1437 [where several jurors testified that the at-issue juror was 

unwilling to participate in the jury discussions, had refused to explain her thoughts, and 

had already made up her mind, the court found substantial evidence to support the finding 

the at-issue juror was unable to perform her functions as a juror as a demonstrable reality, 

and there was no abuse of discretion in excusing her].) Because we have concluded the 

trial court did not abuse its discretion in excusing Juror No. 12, her discharge did not 

violate defendant‟s constitutional rights. (People v. Lomax (2010) 49 Cal.4th 530, 591.) 

DISPOSITION

The judgment is affirmed.

 ROBIE , Acting P. J.

We concur:

 MAURO , J.

 DUARTE , J.
16

Filed 5/29/13

CERTIFIED FOR PARTIAL PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Sacramento)

----

THE PEOPLE,

Plaintiff and Respondent,

v.

ZANG HER,

Defendant and Appellant.

C069153

(Super. Ct. No. 09F00826)

ORDER CERTIFYING 

OPINION FOR PARTIAL 

PUBLICATION

THE COURT:

The opinion in the above-entitled matter filed on May 14, 2013, was not certified 

for publication in the Official Reports. For good cause it now appears that the opinion 

should be published in the Official Reports except for parts II and III of the Discussion, 

and it is so ordered.

BY THE COURT:

 ROBIE , Acting P. J.

 MAURO , J.

 DUARTE , J.

 

 Pursuant to California Rules of Court, rules 8.1105 and 8.1110, this opinion is 

certified for publication with the exception of parts II and III of the Discussion.
17

EDITORIAL LISTING

APPEAL from a judgment of the Superior Court of Sacramento County, Steve 

White, Judge. Affirmed.

Cliff Gardner, under appointment by the Court of Appeal, for Defendant and 

Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney 

General, Michael P. Farrell, Senior Assistant Attorney General, Catherine Chatman and 

Daniel B. Bernstein, Deputies Attorney General, for Plaintiff and Respondent.